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+073f3b9eb0c7088be4ef688f4edfdb6d.pdf	effective_date jurisdiction party term	EX-10 5 ex10-4 .htm EXHIBIT 10.4\nExhibit 10.4\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nTHIS AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made and entered into\nas effective of May 20, 2014 (the “Revised Effective Date”), by and between LIQUIDMETAL TECHNOLOGIES, INC., a Delaware\ncorporation having its principal place of business at 30452 Esperanza, Rancho Santa Margarita, CA 92688, on behalf of itself and its affiliates or\nsubsidiaries other than Crucible Intellectual Property, LLC (collectively “Liquidmetal”), and VISSER PRECISION CAST, LLC, a Colorado\nlimited liability company having its principal place of business at 6275 E 39 Street, Denver, CO 80207 (“VPC”). Liquidmetal and VPC are\nparties to that certain Settlement Agreement and Mutual General Release (“Settlement Agreement”), Amended and Restated VPC Sublicense\nAgreement (“Sublicense”), Amended and Restated Common Stock Purchase Warrant (“Warrant”), and Amended and Restated Registration\nRights Agreement (“Rights Agreement”), each dated as of May 20, 2014. Liquidmetal and VPC are hereinafter referred to individually as a\n“Party” and together as the “Parties.”\nWHEREAS, Liquidmetal and VPC are parties to that certain Mutual Non-Disclosure Agreement (the “Original Agreement”) dated\nJune 1, 2012 (the “Original Effective Date”); and\nWHEREAS, the Parties have entered into the Settlement Agreement, the Sublicense, the Warrant and the Rights Agreement (such\nAgreements, together with this Agreement, collectively the “Revised Transaction Documents”); and\nWHEREAS, during the course of their business relationship, both prior to the Original Effective Date and thereafter, each Party has\nhad and may in the future have access to Confidential Information (as defined below) of the other Party,\nNOW, THEREFORE, in consideration of the foregoing recital and the covenants, terms, and conditions set forth below, the Parties\nhereby agree as follows:\n1.\nCERTAIN DEFINITIONS.\n“Affiliate” shall mean, with respect to a Party, any other entity that controls, is controlled by, or is under common control with such Party. The\nterm “Affiliate” includes, without limitation, all subsidiaries, parent companies, partnerships, and joint ventures of the specified Party.\n“Confidential Information” shall mean any and all nonpublic information concerning or arising from Discloser’s or its Affiliates’ business,\nwhether disclosed prior to or after the Original Effective Date or the Revised Effective Date, and including particularly, but not by way of\nlimitation, trade secrets used, developed or acquired by Discloser in connection with its business; information concerning the manner and details\nof Discloser’s operation, organization and management; financial information and/or documents and nonpublic policies, procedures and other\nprinted or written material generated or used in connection with Discloser ’s business; Discloser ’s business plans and strategies; the identities of\ndistributors, contractors and vendors utilized in Discloser’s business; the details of Discloser ’s relationship with such distributors, contractors\nand vendors; nonpublic forms, contracts and other documents used in Discloser’s business; the nature and content of computer software or\ntechnologies used in Discloser’s business, whether proprietary to Discloser or used by Discloser under license from a third party; Discloser’s\ninventions, trade secrets, know-how, products or processes in development, engineering, methodologies, concepts, techniques, discoveries,\nprocesses, drawings, designs, research, and plans or specifications relating thereto; and all other information concerning Discloser’s concepts,\nprospects, customers, employees, contractors, earnings, products, services, equipment, systems, and/or prospective and executed contracts and\nother business arrangements. “Confidential Information” also includes (i) any information described above which the Discloser obtains from a\nthird party and which the Discloser treats as proprietary or designates as confidential, whether or not owned or developed by the Discloser, and\n(ii) any reports, analysis, compilations, or other documents prepared by Recipient in which any of Discloser’s Confidential Information is\ndescribed or discussed.\n“Discloser” shall mean the Party that is disclosing Confidential Information under this Agreement, regardless of whether such Confidential\nInformation is being provided directly by such Party, by a Representative of the Party, or by any other person or entity that has an obligation of\nconfidentiality with respect to the Confidential Information being disclosed.\n“Recipient” shall mean the Party receiving Confidential Information that is protected under this Agreement.\n“Representatives” shall consist of the directors, officers, employees, financial advisors, accountants, attorneys, consultants, insurers and\nAffiliates of the applicable Party.\n1\nth\n2.\nRESTRICTIONS ON DISCLOSURE AND USE.\n(a)\nRestrictions and Covenants. Each Party agrees that, in its capacity as a Recipient of the other Party’s Confidential\nInformation, it will (i) hold the Discloser’s Confidential Information in strict confidence, use a high degree of care in safeguarding the\nDiscloser ’s Confidential Information, and will take reasonable precautions to protect the Discloser ’s Confidential Information including, at a\nminimum, all precautions the Recipient normally employs with respect to its own confidential information, (ii) not divulge any of the\nDiscloser ’s Confidential Information or any information derived therefrom (including results of tests on material samples) to any other person or\nentity (except as set forth in Section 2(b) below), (iii) not use the Discloser’s Confidential Information for any purpose whatsoever other than as\nmay be directly in furtherance of the purposes of one or more of the Revised Transaction Documents, (iv) not export the Discloser ’s\nConfidential Information in violation of the United States Export Administration Act and regulations thereunder, or any other applicable export\ncontrol laws or regulations, (v) notify the Discloser in writing immediately upon discovery by the Recipient or its Representatives of any\nunauthorized use or disclosure of the Discloser’s Confidential Information, and (vi) upon termination or expiration of the applicable Revised\nTransaction Document, return to the Discloser or destroy (at the option of the Recipient) all such Confidential Information disclosed thereunder,\nincluding all originals, copies and extracts, provided that the Recipient may retain any information to which it has a continuing license for use,\nand provided further that Recipient’s legal counsel may retain one copy of the returned or destroyed items (excluding material samples provided\nby Liquidmetal) for archival purposes. Except as expressly permitted by the Revised Transaction Documents, Recipient will not file any\ncopyright registrations, patent applications, or similar registrations of ownership on Discloser’s Confidential Information or on any invention,\ntechnology, development, or information that utilizes or incorporates Discloser ’s Confidential Information, and in the event that Recipient does\nso in violation of this Agreement, Recipient will assign to Discloser such registrations or applications.\n(b)\nDisclosure to Representatives. The Recipient may only disseminate the Discloser ’s Confidential Information to its\nRepresentatives who have been informed of the Recipient’s obligations under this Agreement and are bound by an obligation of confidentiality\nand non-use with respect to the Discloser’s Confidential Information. The Recipient agrees to reasonably restrict disclosure of the Discloser’s\nConfidential Information to the smallest number of the Recipient’s Representatives which have a need to know the Confidential Information.\nThe Recipient shall be responsible for enforcing this Agreement as to the Recipient’s Representatives and shall take such action (legal or\notherwise) to the extent necessary to cause them to comply with this Agreement.\n(c)\nGeneral Exceptions. The restrictions on the Recipient's disclosure and use of the Discloser’s Confidential Information under\nthis Section 2 will not apply to the extent of any Confidential Information:\n(i)\nthat was already rightfully known by the Recipient prior to the disclosure as evidenced by the Recipient’s written\ndocumentation;\n(ii)\nthat becomes publicly known without breach of the Recipient's obligations under this Agreement;\n(iii)\nthat is rightfully acquired by the Recipient from a third party which is not subject to any restriction or obligation (whether\ncontractual, fiduciary, or otherwise) on disclosure or use of such Confidential Information;\n(iv)\nthat is independently developed by the Recipient or its Representatives without knowledge or reference to such information, as\nevidenced by written documentation or other tangible evidence;\n(v)\nother than as set forth in Section 2(d) below, that is required to be disclosed by law or by court order or government order,\nprovided that the Recipient (a) promptly notifies the Discloser of any such disclosure requirement so that the Discloser may\nseek an appropriate protective order (or other appropriate protections), and (b) provides reasonable assistance (at no cost to the\nRecipient) in obtaining such protective order or other form of protection; or\n(vi)\nas to which and to the extent to which (A) the Recipient has been authorized to disclose or use pursuant to one of the Revised\nTransaction Documents; or (B) the Recipient has otherwise received prior express written consent from an authorized officer\nof the Discloser to disclose or use.\n(d)\nTo the extent that a Party is a publicly-traded company, and subject to laws and regulations requiring disclosure of the\nRevised Transaction Documents to the U.S. Securities and Exchange Commission (the “SEC”), such Party shall (i) seek confidential treatment\nfor any Revised Transaction Document disclosed to or filed with the SEC, or (ii) redact the financial terms from any Revised Transaction\nDocument disclosed to or filed with the SEC. A specific item of Confidential Information shall not be deemed to fall within the foregoing\nexceptions in Section 2(c) merely because such specific item is embraced or implied by more general information that falls within the foregoing\nexceptions.\n2\n3.\nTERM AND TERMINATION\nThe obligations of the Parties under this Agreement shall survive for a period of three (3) years from the termination or expiration of\nthe last of the Revised Transaction Documents to terminate or expire; provided that this Agreement shall continue in full force and effect with\nrespect to any Confidential Information that constitutes a trade secret under applicable law for such additional period as such Confidential\nInformation remains a trade secret under such applicable law. All rights and actions of a Disclosing Party accrued prior to the applicable date of\nany termination or expiration under this Section 3 shall survive such termination or expiration for the duration of any applicable statute of\nlimitations. For clarity, this Agreement shall apply as well with respect to Confidential Information disclosed pursuant to or otherwise covered\nby the Original Agreement.\n4.\nADDITIONAL COVENANTS AND AGREEMENTS.\n(a) No Obligation to Disclose; No Warranty. No provision of this Agreement shall be construed as an obligation by either Party to\ndisclose any Confidential Information to the other Party. Except as expressly set forth in the Revised Transaction Documents, all Confidential\nInformation, including material samples, are provided “AS IS”, without warranty or guarantee of any kind as to its accuracy, completeness,\noperability, fitness for a particular purpose, or any other warranty, express or implied. Except as expressly set forth in the Revised Transaction\nDocuments, or with respect to a breach of a Revised Transaction Document, neither Party shall be liable to the other for any damages, loss,\nexpense, or claim of loss arising from use or reliance on the Confidential Information of the other Party.\n(b) No License Implied. Each Party acknowledges and agrees that except as otherwise expressly set forth in the Revised Transaction\nDocuments, all Confidential Information (and any proprietary and novel features contained in the Confidential Information) shall remain the\nproperty of the Discloser and, except as otherwise expressly set forth in the Revised Transaction Documents, no license or right with respect\nthereto is granted to the Recipient, whether by implication or otherwise. Except as otherwise expressly set forth in the Revised Transaction\nDocuments, the Recipient shall have no rights whatsoever under any patent, trademark, copyright, or application therefor, or any other\nproprietary right of the Discloser, and the Recipient agrees that the Discloser shall remain free to grant such rights to others and to disclose the\nConfidential Information to anyone the Discloser chooses.\n(c) Third-Party Information. The Parties hereby state that they do not desire to acquire from each other, and they hereby agree not to\nfurnish to one another, any trade secret, proprietary know-how, or confidential information acquired from third parties (unless the third party\nprovides prior written consent to such disclosure). Further, each Party represents and warrants to the other that it is free to divulge, without any\nobligation to or violation of the rights of any third party, any and all information which it will demonstrate, divulge, or in any other manner\nmake known to the other in connection with this Agreement.\n(d) Enforcement. Each Party acknowledges and agrees that that any breach of this Agreement by it may cause irreparable harm to\nthe other Party and that the remedies for breach may include injunctive relief against such breach, in addition to damages and other available\nremedies. Except for an action for injunctive relief, disputes arising under this Agreement shall be resolved pursuant to Section 15 of the\nSettlement Agreement and Mutual General Release executed by and between the Parties on or about the Revised Effective Date. The prevailing\nParty shall be entitled to the award of its reasonable attorneys’ fees in any action to enforce this Agreement, to the extent such fees were\nincurred to enforce such Party’s rights under this Agreement.\n(e) Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, other\nthan such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of New York.\n(f) Notices. All notices from one Party to the other required or permitted under this Agreement shall be in writing, shall refer\nspecifically to this Agreement, and shall be delivered in person, or sent by electronic or facsimile transmission for which a confirmation of\ndelivery is obtained, or sent by registered mail or express courier services providing evidence of delivery, in each case to the recipient Party’s\nrespective address set forth on the signature page hereof (or to such updated address as may be specified in writing to the other Party from time\nto time). Such notices will be deemed effective as of the date so delivered or on the third business day following mailing if sent by registered\nmail.\n(g)\nNo Assignment. Neither Party shall assign, transfer, subcontract or otherwise delegate any of its obligations under this\nAgreement without the other Party’s prior written consent in each instance other than as a part of any merger, consolidation, or other statutory\nbusiness combination or as a part of the sale of all or substantially all of their assets. Any attempted assignment, transfer, subcontracting or other\ndelegation without such consent shall be void and shall constitute a breach of this Agreement. Subject to the foregoing, this Agreement shall\ninure to the benefit of the Parties’ successors and assigns.\n3\n(h) Severability. If a specific provision of this Agreement is determined to be invalid or unenforceable for any reason, the specific\nprovision shall be interpreted to call for the protection of the Discloser’s rights to the greatest extent which is valid and enforceable. In the event\nthat a specific provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction and the provision\ncannot be, or the court otherwise declines to permit the provision to be interpreted to call for protection of the Discloser ’s rights to an extent\nwhich is valid and enforceable, the remainder of this Agreement and application of such provision to other persons or circumstances shall be\ninterpreted so as best to reasonably effect the intent of the Parties hereto. The Parties further agree to replace such void or unenforceable\nprovision with a provision which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable\nprovision.\n(i) Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or\npartnership between the Parties. No Party shall have the power to control the activities and operations of another, and their status is, and at all\ntimes will continue to be, that of independent contractors with respect to each other. No Party shall hold itself out as having any authority or\nrelationship in contravention of this Section, and except as specifically called for or permitted herein, no Party shall act on behalf of another\nParty or enter into any contracts, warranty, or representation as to any other matter on the behalf of another Party.\n(j) Entire Agreement; Amendment; Waiver. This Agreement, together with the Revised Transaction Documents, constitutes the\nentire agreement between the Parties relating to the subject matter hereof and supersedes and cancels all other prior agreements and\nunderstandings of the Parties in connection with such subject matter. The headings or titles in this Agreement are for purposes of reference only\nand shall not in any way affect the interpretation or construction of this Agreement. No waiver of any of the provisions of this Agreement shall\nbe valid unless in a written document, signed by the Party against whom such a waiver is sought to be enforced, nor shall failure to enforce any\nright hereunder constitute a continuing waiver of the same or a waiver of any other right hereunder. All amendments of this Agreement shall be\nmade in writing and signed by the Parties, and no oral amendments shall be binding on the Parties.\n(k) Execution; Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of\nwhich together will constitute the same agreement. The Parties agree that this Agreement may be executed by each Party signing one original\nand providing a facsimile (fax) copy, or scanned copy by .pdf, of the signature page to the other Party, provided that each Party agrees to make\nits document with the original signature available to the other Party upon request, and further provided that the Parties agree that the fax or\nscanned signature shall be treated as if it were an original signature, and neither Party shall contest the validity of this Agreement based on the\nuse of fax or scanned signatures.\n(l) Interpretation. The Parties have each been represented by counsel in the negotiation of this Agreement and have jointly prepared\nthis Agreement with counsels’ assistance. In the event of an ambiguity or a question of contract interpretation arises, no provision of this\nAgreement shall be construed based on any particular Party having drafted the Agreement or such provision. Further, neither the history of\nnegotiations between the parties, nor the fact that provisions of this Agreement (or portions thereof) have been inserted, deleted or modified in\nthe course of preparing Agreement drafts, shall be used to construe the meaning of any provision.\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed effective as of the Revised Effective Date, by their\nofficers, duly authorized.\nLiquidmetal Technology, Inc.\nVisser Precision Cast, LLC\n/s/ Tom Steipp\n/s/ Gregory A. Ruegsegger\nTom Steipp\nBy: Gregory A. Ruegsegger\nTitle: President/CEO\nTitle: Vice President\nDate: May 20, 2014\nDate: May 20, 2014\nAddress:\nAddress:\n30452 Esperanza\n6275 E. 39th Street\nRancho Santa Margarita, CA 92688\nDenver, CO 80207\n4	EX-10 5 ex10-4.htm EXHIBIT 10.4\nExhibit 10.4\n>\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nTHIS AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made and entered into\nas effective of May 20, 2014 (the “Revised Effective Date”), by and between LIQUIDMETAL TECHNOLOGIES, INC., a Delaware\ncorporation having its principal place of business at 30452 Esperanza, Rancho Santa Margarita, CA 92688, on behalf of itself and its affiliates or\nsubsidiaries other than Crucible Intellectual Property, LLC (collectively “Liquidmetal”), and VISSER PRECISION CAST, LLC, a Colorado\nlimited liability company having its principal place of business at 6275 E 39t Street, Denver, CO 80207 (“VPC”). Liquidmetal and VPC are\nparties to that certain Settlement Agreement and Mutual General Release (“Settlement Agreement”), Amended and Restated VPC Sublicense\nAgreement (“Sublicense”), Amended and Restated Common Stock Purchase Warrant (“Warrant”), and Amended and Restated Registration\nRights Agreement (“Rights Agreement”), each dated as of May 20, 2014. Liquidmetal and VPC are hereinafter referred to individually as a\n“Party” and together as the “Parties.”\n \n \n \nWHEREAS, Liquidmetal and VPC are parties to that certain Mutual Non-Disclosure Agreement (the “Original Agreement”) dated\nJune 1, 2012 (the “Original Effective Date”); and\nWHEREAS, the Parties have entered into the Settlement Agreement, the Sublicense, the Warrant and the Rights Agreement (such\nAgreements, together with this Agreement, collectively the “Revised Transaction Documents”); and\nWHEREAS, during the course of their business relationship, both prior to the Original Effective Date and thereafter, each Party has\nhad and may in the future have access to Confidential Information (as defined below) of the other Party,\nNOW, THEREFORE, in consideration of the foregoing recital and the covenants, terms, and conditions set forth below, the Parties\nhereby agree as follows:\n1. CERTAIN DEFINITIONS.\n“Affiliate” shall mean, with respect to a Party, any other entity that controls, is controlled by, or is under common control with such Party. The\nterm “Affiliate” includes, without limitation, all subsidiaries, parent companies, partnerships, and joint ventures of the specified Party.\n“Confidential Information” shall mean any and all nonpublic information concerning or arising from Discloser’s or its Affiliates’ business,\nwhether disclosed prior to or after the Original Effective Date or the Revised Effective Date, and including particularly, but not by way of\nlimitation, trade secrets used, developed or acquired by Discloser in connection with its business; information concerning the manner and details\nof Discloser’s operation, organization and management; financial information and/or documents and nonpublic policies, procedures and other\nprinted or written material generated or used in connection with Discloser’s business; Discloser’s business plans and strategies; the identities of\ndistributors, contractors and vendors utilized in Discloser’s business; the details of Discloser’s relationship with such distributors, contractors\nand vendors; nonpublic forms, contracts and other documents used in Discloser’s business; the nature and content of computer software or\ntechnologies used in Discloser’s business, whether proprietary to Discloser or used by Discloser under license from a third party; Discloser’s\ninventions, trade secrets, know-how, products or processes in development, engineering, methodologies, concepts, techniques, discoveries,\nprocesses, drawings, designs, research, and plans or specifications relating thereto; and all other information concerning Discloser’s concepts,\nprospects, customers, employees, contractors, earnings, products, services, equipment, systems, and/or prospective and executed contracts and\nother business arrangements. “Confidential Information” also includes (i) any information described above which the Discloser obtains from a\nthird party and which the Discloser treats as proprietary or designates as confidential, whether or not owned or developed by the Discloser, and\n(ii) any reports, analysis, compilations, or other documents prepared by Recipient in which any of Discloser’s Confidential Information is\ndescribed or discussed.\n“Discloser” shall mean the Party that is disclosing Confidential Information under this Agreement, regardless of whether such Confidential\nInformation is being provided directly by such Party, by a Representative of the Party, or by any other person or entity that has an obligation of\nconfidentiality with respect to the Confidential Information being disclosed.\n“Recipient” shall mean the Party receiving Confidential Information that is protected under this Agreement.\n“Representatives” shall consist of the directors, officers, employees, financial advisors, accountants, attorneys, consultants, insurers and\nAffiliates of the applicable Party.\n \n2. RESTRICTIONS ON DISCLOSURE AND USE.\n(a) Restrictions and Covenants. Each Party agrees that, in its capacity as a Recipient of the other Party’s Confidential\nInformation, it will (i) hold the Discloser’s Confidential Information in strict confidence, use a high degree of care in safeguarding the\nDiscloser’s Confidential Information, and will take reasonable precautions to protect the Discloser’s Confidential Information including, at a\nminimum, all precautions the Recipient normally employs with respect to its own confidential information, (ii) not divulge any of the\nDiscloser’s Confidential Information or any information derived therefrom (including results of tests on material samples) to any other person or\nentity (except as set forth in Section 2(b) below), (iii) not use the Discloser’s Confidential Information for any purpose whatsoever other than as\nmay be directly in furtherance of the purposes of one or more of the Revised Transaction Documents, (iv) not export the Discloser’s\nConfidential Information in violation of the United States Export Administration Act and regulations thereunder, or any other applicable export\ncontrol laws or regulations, (v) notify the Discloser in writing immediately upon discovery by the Recipient or its Representatives of any\nunauthorized use or disclosure of the Discloser’s Confidential Information, and (vi) upon termination or expiration of the applicable Revised\nTransaction Document, return to the Discloser or destroy (at the option of the Recipient) all such Confidential Information disclosed thereunder,\nincluding all originals, copies and extracts, provided that the Recipient may retain any information to which it has a continuing license for use,\nand provided further that Recipient’s legal counsel may retain one copy of the returned or destroyed items (excluding material samples provided\nby Liquidmetal) for archival purposes. Except as expressly permitted by the Revised Transaction Documents, Recipient will not file any\ncopyright registrations, patent applications, or similar registrations of ownership on Discloser’s Confidential Information or on any invention,\ntechnology, development, or information that utilizes or incorporates Discloser’s Confidential Information, and in the event that Recipient does\nso in violation of this Agreement, Recipient will assign to Discloser such registrations or applications.\n(b) Disclosure to Representatives. The Recipient may only disseminate the Discloser’s Confidential Information to its\nRepresentatives who have been informed of the Recipient’s obligations under this Agreement and are bound by an obligation of confidentiality\nand non-use with respect to the Discloser’s Confidential Information. The Recipient agrees to reasonably restrict disclosure of the Discloser’s\nConfidential Information to the smallest number of the Recipient’s Representatives which have a need to know the Confidential Information.\nThe Recipient shall be responsible for enforcing this Agreement as to the Recipient’s Representatives and shall take such action (legal or\notherwise) to the extent necessary to cause them to comply with this Agreement.\n(©) General Exceptions. The restrictions on the Recipient's disclosure and use of the Discloser’s Confidential Information under\nthis Section 2 will not apply to the extent of any Confidential Information:\n@) that was already rightfully known by the Recipient prior to the disclosure as evidenced by the Recipient’s written\ndocumentation;\n(ii) that becomes publicly known without breach of the Recipient's obligations under this Agreement;\n(iii) that is rightfully acquired by the Recipient from a third party which is not subject to any restriction or obligation (whether\ncontractual, fiduciary, or otherwise) on disclosure or use of such Confidential Information;\n@iv) that is independently developed by the Recipient or its Representatives without knowledge or reference to such information, as\nevidenced by written documentation or other tangible evidence;\nV) other than as set forth in Section 2(d) below, that is required to be disclosed by law or by court order or government order,\nprovided that the Recipient (a) promptly notifies the Discloser of any such disclosure requirement so that the Discloser may\nseek an appropriate protective order (or other appropriate protections), and (b) provides reasonable assistance (at no cost to the\nRecipient) in obtaining such protective order or other form of protection; or\n(vi) as to which and to the extent to which (A) the Recipient has been authorized to disclose or use pursuant to one of the Revised\nTransaction Documents; or (B) the Recipient has otherwise received prior express written consent from an authorized officer\nof the Discloser to disclose or use.\n(d) To the extent that a Party is a publicly-traded company, and subject to laws and regulations requiring disclosure of the\nRevised Transaction Documents to the U.S. Securities and Exchange Commission (the “SEC™), such Party shall (i) seek confidential treatment\nfor any Revised Transaction Document disclosed to or filed with the SEC, or (ii) redact the financial terms from any Revised Transaction\nDocument disclosed to or filed with the SEC. A specific item of Confidential Information shall not be deemed to fall within the foregoing\nexceptions in Section 2(c) merely because such specific item is embraced or implied by more general information that falls within the foregoing\nexceptions.\n \n3. TERM AND TERMINATION\nThe obligations of the Parties under this Agreement shall survive for a period of three (3) years from the termination or expiration of\nthe last of the Revised Transaction Documents to terminate or expire; provided that this Agreement shall continue in full force and effect with\nrespect to any Confidential Information that constitutes a trade secret under applicable law for such additional period as such Confidential\nInformation remains a trade secret under such applicable law. All rights and actions of a Disclosing Party accrued prior to the applicable date of\nany termination or expiration under this Section 3 shall survive such termination or expiration for the duration of any applicable statute of\nlimitations. For clarity, this Agreement shall apply as well with respect to Confidential Information disclosed pursuant to or otherwise covered\nby the Original Agreement.\n4. ADDITIONAL COVENANTS AND AGREEMENTS.\n(@) No Obligation to Disclose; No Warranty. No provision of this Agreement shall be construed as an obligation by either Party to\ndisclose any Confidential Information to the other Party. Except as expressly set forth in the Revised Transaction Documents, all Confidential\nInformation, including material samples, are provided “AS IS”, without warranty or guarantee of any kind as to its accuracy, completeness,\noperability, fitness for a particular purpose, or any other warranty, express or implied. Except as expressly set forth in the Revised Transaction\nDocuments, or with respect to a breach of a Revised Transaction Document, neither Party shall be liable to the other for any damages, loss,\nexpense, or claim of loss arising from use or reliance on the Confidential Information of the other Party.\n(b) No License Implied. Each Party acknowledges and agrees that except as otherwise expressly set forth in the Revised Transaction\nDocuments, all Confidential Information (and any proprietary and novel features contained in the Confidential Information) shall remain the\nproperty of the Discloser and, except as otherwise expressly set forth in the Revised Transaction Documents, no license or right with respect\nthereto is granted to the Recipient, whether by implication or otherwise. Except as otherwise expressly set forth in the Revised Transaction\nDocuments, the Recipient shall have no rights whatsoever under any patent, trademark, copyright, or application therefor, or any other\nproprietary right of the Discloser, and the Recipient agrees that the Discloser shall remain free to grant such rights to others and to disclose the\nConfidential Information to anyone the Discloser chooses.\n(c) Third-Party Information. The Parties hereby state that they do not desire to acquire from each other, and they hereby agree not to\nfurnish to one another, any trade secret, proprietary know-how, or confidential information acquired from third parties (unless the third party\nprovides prior written consent to such disclosure). Further, each Party represents and warrants to the other that it is free to divulge, without any\nobligation to or violation of the rights of any third party, any and all information which it will demonstrate, divulge, or in any other manner\nmake known to the other in connection with this Agreement.\n(d) Enforcement. Each Party acknowledges and agrees that that any breach of this Agreement by it may cause irreparable harm to\nthe other Party and that the remedies for breach may include injunctive relief against such breach, in addition to damages and other available\nremedies. Except for an action for injunctive relief, disputes arising under this Agreement shall be resolved pursuant to Section 15 of the\nSettlement Agreement and Mutual General Release executed by and between the Parties on or about the Revised Effective Date. The prevailing\nParty shall be entitled to the award of its reasonable attorneys’ fees in any action to enforce this Agreement, to the extent such fees were\nincurred to enforce such Party’s rights under this Agreement.\n(e) Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, other\nthan such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of New York.\n€3] Notices. All notices from one Party to the other required or permitted under this Agreement shall be in writing, shall refer\nspecifically to this Agreement, and shall be delivered in person, or sent by electronic or facsimile transmission for which a confirmation of\ndelivery is obtained, or sent by registered mail or express courier services providing evidence of delivery, in each case to the recipient Party’s\nrespective address set forth on the signature page hereof (or to such updated address as may be specified in writing to the other Party from time\nto time). Such notices will be deemed effective as of the date so delivered or on the third business day following mailing if sent by registered\nmail.\n(8) No Assignment. Neither Party shall assign, transfer, subcontract or otherwise delegate any of its obligations under this\nAgreement without the other Party’s prior written consent in each instance other than as a part of any merger, consolidation, or other statutory\nbusiness combination or as a part of the sale of all or substantially all of their assets. Any attempted assignment, transfer, subcontracting or other\ndelegation without such consent shall be void and shall constitute a breach of this Agreement. Subject to the foregoing, this Agreement shall\ninure to the benefit of the Parties’ successors and assigns.\n \n(h)  Severability. If a specific provision of this Agreement is determined to be invalid or unenforceable for any reason, the specific\nprovision shall be interpreted to call for the protection of the Discloser’s rights to the greatest extent which is valid and enforceable. In the event\nthat a specific provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction and the provision\ncannot be, or the court otherwise declines to permit the provision to be interpreted to call for protection of the Discloser’s rights to an extent\nwhich is valid and enforceable, the remainder of this Agreement and application of such provision to other persons or circumstances shall be\ninterpreted so as best to reasonably effect the intent of the Parties hereto. The Parties further agree to replace such void or unenforceable\nprovision with a provision which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable\nprovision.\n@) Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or\npartnership between the Parties. No Party shall have the power to control the activities and operations of another, and their status is, and at all\ntimes will continue to be, that of independent contractors with respect to each other. No Party shall hold itself out as having any authority or\nrelationship in contravention of this Section, and except as specifically called for or permitted herein, no Party shall act on behalf of another\nParty or enter into any contracts, warranty, or representation as to any other matter on the behalf of another Party.\n(G)  Entire Agreement; Amendment; Waiver. This Agreement, together with the Revised Transaction Documents, constitutes the\nentire agreement between the Parties relating to the subject matter hereof and supersedes and cancels all other prior agreements and\nunderstandings of the Parties in connection with such subject matter. The headings or titles in this Agreement are for purposes of reference only\nand shall not in any way affect the interpretation or construction of this Agreement. No waiver of any of the provisions of this Agreement shall\nbe valid unless in a written document, signed by the Party against whom such a waiver is sought to be enforced, nor shall failure to enforce any\nright hereunder constitute a continuing waiver of the same or a waiver of any other right hereunder. All amendments of this Agreement shall be\nmade in writing and signed by the Parties, and no oral amendments shall be binding on the Parties.\n(k)  Execution; Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of\nwhich together will constitute the same agreement. The Parties agree that this Agreement may be executed by each Party signing one original\nand providing a facsimile (fax) copy, or scanned copy by .pdf, of the signature page to the other Party, provided that each Party agrees to make\nits document with the original signature available to the other Party upon request, and further provided that the Parties agree that the fax or\nscanned signature shall be treated as if it were an original signature, and neither Party shall contest the validity of this Agreement based on the\nuse of fax or scanned signatures.\n(1)  Interpretation. The Parties have each been represented by counsel in the negotiation of this Agreement and have jointly prepared\nthis Agreement with counsels’ assistance. In the event of an ambiguity or a question of contract interpretation arises, no provision of this\nAgreement shall be construed based on any particular Party having drafted the Agreement or such provision. Further, neither the history of\nnegotiations between the parties, nor the fact that provisions of this Agreement (or portions thereof) have been inserted, deleted or modified in\nthe course of preparing Agreement drafts, shall be used to construe the meaning of any provision.\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed effective as of the Revised Effective Date, by their\nofficers, duly authorized.\nLiquidmetal Technology, Inc. Visser Precision Cast, LLC\n/s/ Tom Steipp /s/ Gregory A. Ruegsegger\nTom Steipp By: Gregory A. Ruegsegger\nTitle: President/CEO Title: Vice President\nDate: May 20, 2014 Date: May 20, 2014\nAddress: Address:\n30452 Esperanza 6275 E. 39th Street\nRancho Santa Margarita, CA 92688 Denver, CO 80207	EX-10 ex10-4.htm EXHIBIT 10.4\nExhibit 10.4\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nTHIS AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT (this "Agreement") is made and entered into\nas\neffective of May 20, 2014 (the "Revised Effective Date"), by and between LIQUIDMETAL TECHNOLOGIES, INC., a Delaware\ncorporation having its principal place of business at 30452 Esperanza, Rancho Santa Margarita, CA 92688, on behalf of itself and its affiliates\nor\nsubsidiaries other than Crucible Intellectual Property, LLC (collectively "Liquidmetal"), and VISSER PRECISION CAST, LLC, a Colorado\nlimited liability company having its principal place of business at 6275 E 39th Street, Denver, CO 80207 ("VPC"). Liquidmetal and VPC are\nparties to that certain Settlement Agreement and Mutual General Release ("Settlement Agreement"), Amended and Restated VPC Sublicense\nAgreement ("Sublicense"), Amended and Restated Common Stock Purchase Warrant ("Warrant"), and Amended and Restated Registration\nRights Agreement ("Rights Agreement"), each dated as of May 20, 2014. Liquidmetal and VPC are hereinafter referred to individually as a\n"Party." and together as the "Parties."\nWHEREAS, Liquidmetal and VPC are parties to that certain Mutual Non-Disclosure Agreement (the "Original Agreement") dated\nJune 1, 2012 (the "Original Effective Date"); and\nWHEREAS, the Parties have entered into the Settlement Agreement, the Sublicense, the Warrant and the Rights Agreement (such\nAgreements, together with this Agreement, collectively the "Revised Transaction Documents"); and\nWHEREAS, during the course of their business relationship, both prior to the Original Effective Date and thereafter, each Party has\nhad and may in the future have access to Confidential Information (as defined below) of the other Party,\nNOW, THEREFORE, in consideration of the foregoing recital and the covenants, terms, and conditions set forth below, the Parties\nhereby agree as follows:\n1.\nCERTAIN DEFINITIONS.\n"Affiliate" shall mean, with respect to a Party, any other entity that controls, is controlled by, or is under common control with such Party. The\nterm "Affiliate" includes, without limitation, all subsidiaries, parent companies, partnerships, and joint ventures of the specified Party.\n"Confidential Information" shall mean any and all nonpublic information concerning or arising from Discloser's or its Affiliates' business,\nwhether disclosed prior to or after the Original Effective Date or the Revised Effective Date, and including particularly, but not by way of\nlimitation, trade secrets used, developed or acquired by Discloser in connection with its business; information concerning the manner and details\nof Discloser's operation, organization and management; financial information and/or documents and nonpublic policies, procedures and other\nprinted or written material generated or used in connection with Discloser's business; Discloser's business plans and strategies; the identities of\ndistributors, contractors and vendors utilized in Discloser's business; the details of Discloser's relationship with such distributors, contractors\nand vendors; nonpublic forms, contracts and other documents used in Discloser's business; the nature and content of computer software or\ntechnologies used in Discloser's business, whether proprietary to Discloser or used by Discloser under license from a third party; Discloser's\ninventions, trade secrets, know-how, products or processes in development, engineering, methodologies, concepts, techniques, discoveries,\nprocesses, drawings, designs, research, and plans or specifications relating thereto; and all other information concerning Discloser's concepts,\nprospects, customers, employees, contractors, earnings, products, services, equipment, systems, and/or prospective and executed contracts and\nother business arrangements. "Confidential Information" also includes (i) any information described above which the Discloser obtains from\na\nthird party and which the Discloser treats as proprietary or designates as confidential, whether or not owned or developed by the Discloser, and\n(ii) any reports, analysis, compilations, or other documents prepared by Recipient in which any of Discloser's Confidential Information is\ndescribed or discussed.\n"Discloser" shall mean the Party that is disclosing Confidential Information under this Agreement, regardless of whether such Confidential\nInformation is being provided directly by such Party, by a Representative of the Party, or by any other person or entity that has an obligation of\nconfidentiality with respect to the Confidential Information being disclosed.\n"Recipient" shall mean the Party receiving Confidentia Information that is protected under this Agreement.\n"Representatives" shall consist of the directors, officers, employees, financial advisors, accountants, attorneys, consultants, insurers and\nAffiliates of the applicable Party.\n1\n2.\nRESTRICTIONS ON DISCLOSURE AND USE.\n(a)\nRestrictions and Covenants. Each Party agrees that, in its capacity as a Recipient of the other Party's Confidentia\nInformation, it will (i) hold the Discloser's Confidential Information in strict confidence, use a high degree of care in safeguarding the\nDiscloser's Confidential Information, and will take reasonable precautions to protect the Discloser's Confidential Information including, at a\nminimum, all precautions the Recipient normally employs with respect to its own confidential information, (ii) not divulge any of the\nDiscloser's\nConfidential\nInformation\nor\nany\ninformation\nderived\ntherefrom\n(including\nresults\nof\ntests\non\nmateria\nsamples)\nto\nany\nother\nperson\nor\nentity (except as set forth in Section 2(b) below), (iii) not use the Discloser's Confidential Information for any purpose whatsoever other than\nas\nmay be directly in furtherance of the purposes of one or more of the Revised Transaction Documents, (iv) not export the Discloser's\nConfidential Information in violation of the United States Export Administration Act and regulations thereunder, or any other applicable export\ncontrol laws or regulations, (v) notify the Discloser in writing immediately upon discovery by the Recipient or its Representatives of any\nunauthorized use or disclosure of the Discloser's Confidential Information, and (vi) upon termination or expiration of the applicable Revised\nTransaction Document, return to the Discloser or destroy (at the option of the Recipient) all such Confidential Information disclosed thereunder,\nincluding all originals, copies and extracts, provided that the Recipient may retain any information to which it has a continuing license for use,\nand provided further that Recipient's legal counsel may retain one copy of the returned or destroyed items (excluding material samples provided\nby\nLiquidmetal)\nfor\narchival\npurposes.\nExcept\nas\nexpressly\npermitted\nby\nthe\nRevised\nTransaction\nDocuments,\nRecipient\nwill\nnot\nfile\nany\ncopyright registrations, patent applications, or similar registrations of ownership on Discloser's Confidential Information or on any invention,\ntechnology, development, or information that utilizes or incorporates Discloser's Confidential Information, and in the event that Recipient does\nso in violation of this Agreement, Recipient will assign to Discloser such registrations or applications.\n(b)\nDisclosure to Representatives. The Recipient may only disseminate the Discloser's Confidential Information to its\nRepresentatives who have been informed of the Recipient's obligations under this Agreement and are bound by an obligation of confidentiality\nand non-use with respect to the Discloser's Confidential Information. The Recipient agrees to reasonably restrict disclosure of the Discloser's\nConfidential Information to the smallest number of the Recipient's Representatives which have a need to know the Confidential Information.\nThe Recipient shall be responsible for enforcing this Agreement as to the Recipient's Representatives and shall take such action (legal\nor\notherwise) to the extent necessary to cause them to comply with this Agreement.\n(c)\nGeneral Exceptions. The restrictions on the Recipient's disclosure and use of the Discloser's Confidential Information under\nthis Section 2 will not apply to the extent of any Confidential Information:\n(i)\nthat was already rightfully known by the Recipient prior to the disclosure as evidenced by the Recipient's written\ndocumentation;\n(ii)\nthat becomes publicly known without breach of the Recipient's obligations under this Agreement;\n(iii)\nthat is rightfully acquired by the Recipient from a third party which is not subject to any restriction or obligation (whether\ncontractual, fiduciary, or otherwise) on disclosure or use of such Confidential Information;\n(iv)\nthat is independently developed by the Recipient or its Representatives without knowledge or reference to such information, as\nevidenced by written documentation or other tangible evidence;\n(v)\nother than as set forth in Section 2(d) below, that is required to be disclosed by law or by court order or government order,\nprovided that the Recipient (a) promptly notifies the Discloser of any such disclosure requirement so that the Discloser may\nseek an appropriate protective order (or other appropriate protections), and (b) provides reasonable assistance (at no cost to the\nRecipient) in obtaining such protective order or other form of protection; or\n(vi)\nas to which and to the extent to which (A) the Recipient has been authorized to disclose or use pursuant to one of the Revised\nTransaction Documents; or (B) the Recipient has otherwise received prior express written consent from an authorized officer\nof the Discloser to disclose or use.\n(d)\nTo the extent that a Party is a publicly-traded company, and subject to laws and regulations requiring disclosure of the\nRevised Transaction Documents to the U.S. Securities and Exchange Commission (the "SEC"), such Party shall (i) seek confidential treatment\nfor any Revised Transaction Document disclosed to or filed with the SEC, or (ii) redact the financial terms from any Revised Transaction\nDocument disclosed to or filed with the SEC. A specific item of Confidential Information shall not be deemed to fall within the foregoing\nexceptions in Section 2(c) merely because such specific item is embraced or implied by more general information that falls within the foregoing\nexceptions.\n2\n3.\nTERM AND TERMINATION\nThe obligations of the Parties under this Agreement shall survive for a period of three (3) years from the termination or expiration of\nthe last of the Revised Transaction Documents to terminate or expire; provided that this Agreement shall continue in full force and effect with\nrespect to any Confidential Information that constitutes a trade secret under applicable law for such additional period as such Confidential\nInformation remains a trade secret under such applicable law. All rights and actions of a Disclosing Party accrued prior to the applicable date of\nany\ntermination\nor\nexpiration\nunder\nthis\nSection\n3\nshall\nsurvive\nsuch\ntermination\nor\nexpiration\nfor\nthe\nduration\nof\nany\napplicable\nstatute\nof\nlimitations. For clarity, this Agreement shall apply as well with respect to Confidential Information disclosed pursuant to or otherwise covered\nby the Original Agreement.\n4.\nADDITIONAL COVENANTS AND AGREEMENTS.\n(a) No Obligation to Disclose; No Warranty. No provision of this Agreement shall be construed as an obligation by either Party to\ndisclose any Confidential Information to the other Party. Except as expressly set forth in the Revised Transaction Documents, all Confidential\nInformation, including material samples, are provided "AS IS", without warranty or guarantee of any kind as to its accuracy, completeness,\noperability,\nfitness\nfor\na\nparticular\npurpose,\nor\nany\nother\nwarranty,\nexpress\nor\nimplied.\nExcept\nas\nexpressly\nset\nforth\nin\nthe\nRevised\nTransaction\nDocuments, or with respect to a breach of a Revised Transaction Document, neither Party shall be liable to the other for any damages, loss,\nexpense, or claim of loss arising from use or reliance on the Confidential Information of the other Party.\n(b) No License Implied. Each Party acknowledges and agrees that except as otherwise expressly set forth in the Revised Transaction\nDocuments, all Confidential Information (and any proprietary and novel features contained in the Confidential Information) shall remain the\nproperty of the Discloser and, except as otherwise expressly set forth in the Revised Transaction Documents, no license or right with respect\nthereto is granted to the Recipient, whether by implication or otherwise. Except as otherwise expressly set forth in the Revised Transaction\nDocuments, the Recipient shall have no rights whatsoever under any patent, trademark, copyright, or application therefor, or any other\nproprietary right of the Discloser, and the Recipient agrees that the Discloser shall remain free to grant such rights to others and to disclose the\nConfidential Information to anyone the Discloser chooses.\n(c) Third-Party Information. The Parties hereby state that they do not desire to acquire from each other, and they hereby agree not to\nfurnish to one another, any trade secret, proprietary know-how, or confidential information acquired from third parties (unless the third party\nprovides prior written consent to such disclosure). Further, each Party represents and warrants to the other that it is free to divulge, without any\nobligation to or violation of the rights of any third party, any and all information which it will demonstrate, divulge, or in any other manner\nmake known to the other in connection with this Agreement.\n(d)\nEnforcement. Each Party acknowledges and agrees that that any breach of this Agreement by it may cause irreparable harm to\nthe other Party and that the remedies for breach may include injunctive relief against such breach, in addition to damages and other available\nremedies. Except for an action for injunctive relief, disputes arising under this Agreement shall be resolved pursuant to Section 15 of the\nSettlement Agreement and Mutual General Release executed by and between the Parties on or about the Revised Effective Date. The prevailing\nParty shall be entitled to the award of its reasonable attorneys' fees in any action to enforce this Agreement, to the extent such fees were\nincurred to enforce such Party's rights under this Agreement.\n(e) Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, other\nthan such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of New York.\n(f)\nNotices. All notices from one Party to the other required or permitted under this Agreement shall be in writing, shall refer\nspecifically\nto\nthis\nAgreement,\nand\nshall\nbe\ndelivered\nin\nperson,\nor\nsent\nby\nelectronic\nor\nfacsimile\ntransmission\nfor\nwhich\na\nconfirmation\nof\ndelivery is obtained, or sent by registered mail or express courier services providing evidence of delivery, in each case to the recipient Party's\nrespective address set forth on the signature page hereof (or to such updated address as may be specified in writing to the other Party from time\nto time). Such notices will be deemed effective as of the date so delivered or on the third business day following mailing if sent by registered\nmail.\n(g) No Assignment. Neither Party shall assign, transfer, subcontract or otherwise delegate any of its obligations under this\nAgreement without the other Party's prior written consent in each instance other than as a part of any merger, consolidation, or other statutory\nbusiness combination or as a part of the sale of all or substantially all of their assets. Any attempted assignment, transfer, subcontracting or other\ndelegation without such consent shall be void and shall constitute a breach of this Agreement. Subject to the foregoing, this Agreement shall\ninure to the benefit of the Parties' successors and assigns.\n3\n(h)\nSeverability. If a specific provision of this Agreement is determined to be invalid or unenforceable for any reason, the specific\nprovision shall be interpreted to call for the protection of the Discloser's rights to the greatest extent which is valid and enforceable. In the event\nthat a specific provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction and the provision\ncannot be, or the court otherwise declines to permit the provision to be interpreted to call for protection of the Discloser's rights to an extent\nwhich is valid and enforceable, the remainder of this Agreement and application of such provision to other persons or circumstances shall be\ninterpreted so as best to reasonably effect the intent of the Parties hereto. The Parties further agree to replace such void or unenforceable\nprovision with a provision which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable\nprovision.\n(i) Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or\npartnership between the Parties. No Party shall have the power to control the activities and operations of another, and their status is, and at all\ntimes will continue to be, that of independent contractors with respect to each other. No Party shall hold itself out as having any authority or\nrelationship in contravention of this Section, and except as specifically called for or permitted herein, no Party shall act on behalf of another\nParty or enter into any contracts, warranty, or representation as to any other matter on the behalf of another Party.\n(j)\nEntire Agreement; Amendment; Waiver. This Agreement, together with the Revised Transaction Documents, constitutes the\nentire agreement between the Parties relating to the subject matter hereof and supersedes and cancels all other prior agreements and\nunderstandings of the Parties in connection with such subject matter. The headings or titles in this Agreement are for purposes of reference only\nand shall not in any way affect the interpretation or construction of this Agreement. No waiver of any of the provisions of this Agreement shall\nbe valid unless in a written document, signed by the Party against whom such a waiver is sought to be enforced, nor shall failure to enforce any\nright hereunder constitute a continuing waiver of the same or a waiver of any other right hereunder. All amendments of this Agreement shall be\nmade in writing and signed by the Parties, and no oral amendments shall be binding on the Parties.\n(k) Execution; Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of\nwhich together will constitute the same agreement. The Parties agree that this Agreement may be executed by each Party signing one original\nand providing a facsimile (fax) copy, or scanned copy by .pdf, of the signature page to the other Party, provided that each Party agrees to make\nits document with the original signature available to the other Party upon request, and further provided that the Parties agree that the fax or\nscanned signature shall be treated as if it were an original signature, and neither Party shall contest the validity of this Agreement based on the\nuse of fax or scanned signatures.\n(1) Interpretation. The Parties have each been represented by counsel in the negotiation of this Agreement and have jointly prepared\nthis Agreement with counsels' assistance. In the event of an ambiguity or a question of contract interpretation arises, no provision of this\nAgreement shall be construed based on any particular Party having drafted the Agreement or such provision. Further, neither the history of\nnegotiations between the parties, nor the fact that provisions of this Agreement (or portions thereof) have been inserted, deleted or modified in\nthe course of preparing Agreement drafts, shall be used to construe the meaning of any provision.\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed effective as of the Revised Effective Date, by their\nofficers, duly authorized.\nLiquidmetal Technology, Inc.\nVisser Precision Cast, LLC\n/s/ Tom Steipp\n/s/ Gregory A. Ruegsegger\nTom Steipp\nBy: Gregory A. Ruegsegger\nTitle: President/CEO\nTitle: Vice President\nDate: May 20, 2014\nDate: May 20, 2014\nAddress:\nAddress:\n30452 Esperanza\n6275 E. 39th Street\nRancho Santa Margarita, CA 92688\nDenver, CO 80207\n4	EX-10 5 ex10-4 .htm EXHIBIT 10.4\nExhibit 10.4\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nTHIS AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made and entered into\nas effective of May 20, 2014 (the “Revised Effective Date”), by and between LIQUIDMETAL TECHNOLOGIES, INC., a Delaware\ncorporation having its principal place of business at 30452 Esperanza, Rancho Santa Margarita, CA 92688, on behalf of itself and its affiliates or\nsubsidiaries other than Crucible Intellectual Property, LLC (collectively “Liquidmetal”), and VISSER PRECISION CAST, LLC, a Colorado\nlimited liability company having its principal place of business at 6275 E 39 Street, Denver, CO 80207 (“VPC”). Liquidmetal and VPC are\nparties to that certain Settlement Agreement and Mutual General Release (“Settlement Agreement”), Amended and Restated VPC Sublicense\nAgreement (“Sublicense”), Amended and Restated Common Stock Purchase Warrant (“Warrant”), and Amended and Restated Registration\nRights Agreement (“Rights Agreement”), each dated as of May 20, 2014. Liquidmetal and VPC are hereinafter referred to individually as a\n“Party” and together as the “Parties.”\nWHEREAS, Liquidmetal and VPC are parties to that certain Mutual Non-Disclosure Agreement (the “Original Agreement”) dated\nJune 1, 2012 (the “Original Effective Date”); and\nWHEREAS, the Parties have entered into the Settlement Agreement, the Sublicense, the Warrant and the Rights Agreement (such\nAgreements, together with this Agreement, collectively the “Revised Transaction Documents”); and\nWHEREAS, during the course of their business relationship, both prior to the Original Effective Date and thereafter, each Party has\nhad and may in the future have access to Confidential Information (as defined below) of the other Party,\nNOW, THEREFORE, in consideration of the foregoing recital and the covenants, terms, and conditions set forth below, the Parties\nhereby agree as follows:\n1.\nCERTAIN DEFINITIONS.\n“Affiliate” shall mean, with respect to a Party, any other entity that controls, is controlled by, or is under common control with such Party. The\nterm “Affiliate” includes, without limitation, all subsidiaries, parent companies, partnerships, and joint ventures of the specified Party.\n“Confidential Information” shall mean any and all nonpublic information concerning or arising from Discloser’s or its Affiliates’ business,\nwhether disclosed prior to or after the Original Effective Date or the Revised Effective Date, and including particularly, but not by way of\nlimitation, trade secrets used, developed or acquired by Discloser in connection with its business; information concerning the manner and details\nof Discloser’s operation, organization and management; financial information and/or documents and nonpublic policies, procedures and other\nprinted or written material generated or used in connection with Discloser ’s business; Discloser ’s business plans and strategies; the identities of\ndistributors, contractors and vendors utilized in Discloser’s business; the details of Discloser ’s relationship with such distributors, contractors\nand vendors; nonpublic forms, contracts and other documents used in Discloser’s business; the nature and content of computer software or\ntechnologies used in Discloser’s business, whether proprietary to Discloser or used by Discloser under license from a third party; Discloser’s\ninventions, trade secrets, know-how, products or processes in development, engineering, methodologies, concepts, techniques, discoveries,\nprocesses, drawings, designs, research, and plans or specifications relating thereto; and all other information concerning Discloser’s concepts,\nprospects, customers, employees, contractors, earnings, products, services, equipment, systems, and/or prospective and executed contracts and\nother business arrangements. “Confidential Information” also includes (i) any information described above which the Discloser obtains from a\nthird party and which the Discloser treats as proprietary or designates as confidential, whether or not owned or developed by the Discloser, and\n(ii) any reports, analysis, compilations, or other documents prepared by Recipient in which any of Discloser’s Confidential Information is\ndescribed or discussed.\n“Discloser” shall mean the Party that is disclosing Confidential Information under this Agreement, regardless of whether such Confidential\nInformation is being provided directly by such Party, by a Representative of the Party, or by any other person or entity that has an obligation of\nconfidentiality with respect to the Confidential Information being disclosed.\n“Recipient” shall mean the Party receiving Confidential Information that is protected under this Agreement.\n“Representatives” shall consist of the directors, officers, employees, financial advisors, accountants, attorneys, consultants, insurers and\nAffiliates of the applicable Party.\n1\nth\n2.\nRESTRICTIONS ON DISCLOSURE AND USE.\n(a)\nRestrictions and Covenants. Each Party agrees that, in its capacity as a Recipient of the other Party’s Confidential\nInformation, it will (i) hold the Discloser’s Confidential Information in strict confidence, use a high degree of care in safeguarding the\nDiscloser ’s Confidential Information, and will take reasonable precautions to protect the Discloser ’s Confidential Information including, at a\nminimum, all precautions the Recipient normally employs with respect to its own confidential information, (ii) not divulge any of the\nDiscloser ’s Confidential Information or any information derived therefrom (including results of tests on material samples) to any other person or\nentity (except as set forth in Section 2(b) below), (iii) not use the Discloser’s Confidential Information for any purpose whatsoever other than as\nmay be directly in furtherance of the purposes of one or more of the Revised Transaction Documents, (iv) not export the Discloser ’s\nConfidential Information in violation of the United States Export Administration Act and regulations thereunder, or any other applicable export\ncontrol laws or regulations, (v) notify the Discloser in writing immediately upon discovery by the Recipient or its Representatives of any\nunauthorized use or disclosure of the Discloser’s Confidential Information, and (vi) upon termination or expiration of the applicable Revised\nTransaction Document, return to the Discloser or destroy (at the option of the Recipient) all such Confidential Information disclosed thereunder,\nincluding all originals, copies and extracts, provided that the Recipient may retain any information to which it has a continuing license for use,\nand provided further that Recipient’s legal counsel may retain one copy of the returned or destroyed items (excluding material samples provided\nby Liquidmetal) for archival purposes. Except as expressly permitted by the Revised Transaction Documents, Recipient will not file any\ncopyright registrations, patent applications, or similar registrations of ownership on Discloser’s Confidential Information or on any invention,\ntechnology, development, or information that utilizes or incorporates Discloser ’s Confidential Information, and in the event that Recipient does\nso in violation of this Agreement, Recipient will assign to Discloser such registrations or applications.\n(b)\nDisclosure to Representatives. The Recipient may only disseminate the Discloser ’s Confidential Information to its\nRepresentatives who have been informed of the Recipient’s obligations under this Agreement and are bound by an obligation of confidentiality\nand non-use with respect to the Discloser’s Confidential Information. The Recipient agrees to reasonably restrict disclosure of the Discloser’s\nConfidential Information to the smallest number of the Recipient’s Representatives which have a need to know the Confidential Information.\nThe Recipient shall be responsible for enforcing this Agreement as to the Recipient’s Representatives and shall take such action (legal or\notherwise) to the extent necessary to cause them to comply with this Agreement.\n(c)\nGeneral Exceptions. The restrictions on the Recipient's disclosure and use of the Discloser’s Confidential Information under\nthis Section 2 will not apply to the extent of any Confidential Information:\n(i)\nthat was already rightfully known by the Recipient prior to the disclosure as evidenced by the Recipient’s written\ndocumentation;\n(ii)\nthat becomes publicly known without breach of the Recipient's obligations under this Agreement;\n(iii)\nthat is rightfully acquired by the Recipient from a third party which is not subject to any restriction or obligation (whether\ncontractual, fiduciary, or otherwise) on disclosure or use of such Confidential Information;\n(iv)\nthat is independently developed by the Recipient or its Representatives without knowledge or reference to such information, as\nevidenced by written documentation or other tangible evidence;\n(v)\nother than as set forth in Section 2(d) below, that is required to be disclosed by law or by court order or government order,\nprovided that the Recipient (a) promptly notifies the Discloser of any such disclosure requirement so that the Discloser may\nseek an appropriate protective order (or other appropriate protections), and (b) provides reasonable assistance (at no cost to the\nRecipient) in obtaining such protective order or other form of protection; or\n(vi)\nas to which and to the extent to which (A) the Recipient has been authorized to disclose or use pursuant to one of the Revised\nTransaction Documents; or (B) the Recipient has otherwise received prior express written consent from an authorized officer\nof the Discloser to disclose or use.\n(d)\nTo the extent that a Party is a publicly-traded company, and subject to laws and regulations requiring disclosure of the\nRevised Transaction Documents to the U.S. Securities and Exchange Commission (the “SEC”), such Party shall (i) seek confidential treatment\nfor any Revised Transaction Document disclosed to or filed with the SEC, or (ii) redact the financial terms from any Revised Transaction\nDocument disclosed to or filed with the SEC. A specific item of Confidential Information shall not be deemed to fall within the foregoing\nexceptions in Section 2(c) merely because such specific item is embraced or implied by more general information that falls within the foregoing\nexceptions.\n2\n3.\nTERM AND TERMINATION\nThe obligations of the Parties under this Agreement shall survive for a period of three (3) years from the termination or expiration of\nthe last of the Revised Transaction Documents to terminate or expire; provided that this Agreement shall continue in full force and effect with\nrespect to any Confidential Information that constitutes a trade secret under applicable law for such additional period as such Confidential\nInformation remains a trade secret under such applicable law. All rights and actions of a Disclosing Party accrued prior to the applicable date of\nany termination or expiration under this Section 3 shall survive such termination or expiration for the duration of any applicable statute of\nlimitations. For clarity, this Agreement shall apply as well with respect to Confidential Information disclosed pursuant to or otherwise covered\nby the Original Agreement.\n4.\nADDITIONAL COVENANTS AND AGREEMENTS.\n(a) No Obligation to Disclose; No Warranty. No provision of this Agreement shall be construed as an obligation by either Party to\ndisclose any Confidential Information to the other Party. Except as expressly set forth in the Revised Transaction Documents, all Confidential\nInformation, including material samples, are provided “AS IS”, without warranty or guarantee of any kind as to its accuracy, completeness,\noperability, fitness for a particular purpose, or any other warranty, express or implied. Except as expressly set forth in the Revised Transaction\nDocuments, or with respect to a breach of a Revised Transaction Document, neither Party shall be liable to the other for any damages, loss,\nexpense, or claim of loss arising from use or reliance on the Confidential Information of the other Party.\n(b) No License Implied. Each Party acknowledges and agrees that except as otherwise expressly set forth in the Revised Transaction\nDocuments, all Confidential Information (and any proprietary and novel features contained in the Confidential Information) shall remain the\nproperty of the Discloser and, except as otherwise expressly set forth in the Revised Transaction Documents, no license or right with respect\nthereto is granted to the Recipient, whether by implication or otherwise. Except as otherwise expressly set forth in the Revised Transaction\nDocuments, the Recipient shall have no rights whatsoever under any patent, trademark, copyright, or application therefor, or any other\nproprietary right of the Discloser, and the Recipient agrees that the Discloser shall remain free to grant such rights to others and to disclose the\nConfidential Information to anyone the Discloser chooses.\n(c) Third-Party Information. The Parties hereby state that they do not desire to acquire from each other, and they hereby agree not to\nfurnish to one another, any trade secret, proprietary know-how, or confidential information acquired from third parties (unless the third party\nprovides prior written consent to such disclosure). Further, each Party represents and warrants to the other that it is free to divulge, without any\nobligation to or violation of the rights of any third party, any and all information which it will demonstrate, divulge, or in any other manner\nmake known to the other in connection with this Agreement.\n(d) Enforcement. Each Party acknowledges and agrees that that any breach of this Agreement by it may cause irreparable harm to\nthe other Party and that the remedies for breach may include injunctive relief against such breach, in addition to damages and other available\nremedies. Except for an action for injunctive relief, disputes arising under this Agreement shall be resolved pursuant to Section 15 of the\nSettlement Agreement and Mutual General Release executed by and between the Parties on or about the Revised Effective Date. The prevailing\nParty shall be entitled to the award of its reasonable attorneys’ fees in any action to enforce this Agreement, to the extent such fees were\nincurred to enforce such Party’s rights under this Agreement.\n(e) Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, other\nthan such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of New York.\n(f) Notices. All notices from one Party to the other required or permitted under this Agreement shall be in writing, shall refer\nspecifically to this Agreement, and shall be delivered in person, or sent by electronic or facsimile transmission for which a confirmation of\ndelivery is obtained, or sent by registered mail or express courier services providing evidence of delivery, in each case to the recipient Party’s\nrespective address set forth on the signature page hereof (or to such updated address as may be specified in writing to the other Party from time\nto time). Such notices will be deemed effective as of the date so delivered or on the third business day following mailing if sent by registered\nmail.\n(g)\nNo Assignment. Neither Party shall assign, transfer, subcontract or otherwise delegate any of its obligations under this\nAgreement without the other Party’s prior written consent in each instance other than as a part of any merger, consolidation, or other statutory\nbusiness combination or as a part of the sale of all or substantially all of their assets. Any attempted assignment, transfer, subcontracting or other\ndelegation without such consent shall be void and shall constitute a breach of this Agreement. Subject to the foregoing, this Agreement shall\ninure to the benefit of the Parties’ successors and assigns.\n3\n(h) Severability. If a specific provision of this Agreement is determined to be invalid or unenforceable for any reason, the specific\nprovision shall be interpreted to call for the protection of the Discloser’s rights to the greatest extent which is valid and enforceable. In the event\nthat a specific provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction and the provision\ncannot be, or the court otherwise declines to permit the provision to be interpreted to call for protection of the Discloser ’s rights to an extent\nwhich is valid and enforceable, the remainder of this Agreement and application of such provision to other persons or circumstances shall be\ninterpreted so as best to reasonably effect the intent of the Parties hereto. The Parties further agree to replace such void or unenforceable\nprovision with a provision which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable\nprovision.\n(i) Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or\npartnership between the Parties. No Party shall have the power to control the activities and operations of another, and their status is, and at all\ntimes will continue to be, that of independent contractors with respect to each other. No Party shall hold itself out as having any authority or\nrelationship in contravention of this Section, and except as specifically called for or permitted herein, no Party shall act on behalf of another\nParty or enter into any contracts, warranty, or representation as to any other matter on the behalf of another Party.\n(j) Entire Agreement; Amendment; Waiver. This Agreement, together with the Revised Transaction Documents, constitutes the\nentire agreement between the Parties relating to the subject matter hereof and supersedes and cancels all other prior agreements and\nunderstandings of the Parties in connection with such subject matter. The headings or titles in this Agreement are for purposes of reference only\nand shall not in any way affect the interpretation or construction of this Agreement. No waiver of any of the provisions of this Agreement shall\nbe valid unless in a written document, signed by the Party against whom such a waiver is sought to be enforced, nor shall failure to enforce any\nright hereunder constitute a continuing waiver of the same or a waiver of any other right hereunder. All amendments of this Agreement shall be\nmade in writing and signed by the Parties, and no oral amendments shall be binding on the Parties.\n(k) Execution; Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of\nwhich together will constitute the same agreement. The Parties agree that this Agreement may be executed by each Party signing one original\nand providing a facsimile (fax) copy, or scanned copy by .pdf, of the signature page to the other Party, provided that each Party agrees to make\nits document with the original signature available to the other Party upon request, and further provided that the Parties agree that the fax or\nscanned signature shall be treated as if it were an original signature, and neither Party shall contest the validity of this Agreement based on the\nuse of fax or scanned signatures.\n(l) Interpretation. The Parties have each been represented by counsel in the negotiation of this Agreement and have jointly prepared\nthis Agreement with counsels’ assistance. In the event of an ambiguity or a question of contract interpretation arises, no provision of this\nAgreement shall be construed based on any particular Party having drafted the Agreement or such provision. Further, neither the history of\nnegotiations between the parties, nor the fact that provisions of this Agreement (or portions thereof) have been inserted, deleted or modified in\nthe course of preparing Agreement drafts, shall be used to construe the meaning of any provision.\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed effective as of the Revised Effective Date, by their\nofficers, duly authorized.\nLiquidmetal Technology, Inc.\nVisser Precision Cast, LLC\n/s/ Tom Steipp\n/s/ Gregory A. Ruegsegger\nTom Steipp\nBy: Gregory A. Ruegsegger\nTitle: President/CEO\nTitle: Vice President\nDate: May 20, 2014\nDate: May 20, 2014\nAddress:\nAddress:\n30452 Esperanza\n6275 E. 39th Street\nRancho Santa Margarita, CA 92688\nDenver, CO 80207\n4
+0d3f3a02773949e285cfc3ad2fe4dbf5.pdf	effective_date jurisdiction party term	Exhibit L-2\nto Amended and Restated Loan Guarantee Agreement\nFORM OF NONDISCLOSURE AGREEMENT FOR LENDER’S ENGINEER\n[FORM OF] NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated [\n] and is between [\n,a\ncorporation] [[\n], an employee\nof\n](26) (“Recipient”) and Oglethorpe Power Corporation (An Electric Membership Corporation), an electric membership corporation\norganized and existing under the laws of Georgia (“OPC”). Capitalized terms used but not otherwise defined in this Agreement have the\nmeanings provided in the EPC Agreement, as defined in Article 2(b)(i) below.\n1.\nRecipient is participating in providing technical advisory and support services to the Department of Energy, Loan Programs\nOffice (“DOE”), under Contract No. DE-DT002463 (the “Contract”), in connection with (a) DOE’s negotiation of certain loan guarantee\nagreements and related financing documents between DOE and each of Georgia Power Company (“GPC”), OPC and/or the Municipal Electric\nAuthority of Georgia or any of its wholly owned subsidiaries (each, a “DOE Borrower”) pursuant to which DOE would guarantee the repayment\nof a loan to such DOE Borrower for the construction, operation and ownership of Vogtle Units 3 and 4 (the “Project”) and (b) the related due\ndiligence (each such guarantee, a “DOE Loan Guarantee”; such loan guarantee agreements collectively, the “DOE Loan Guarantee\nAgreements”).\n2.\n(a)\nIn order to permit Recipient to review Confidential Information (as hereinafter defined) of OPC and/or its Contractor,\na consortium composed of Westinghouse Electric Company, LLC (“Westinghouse”) and Stone & Webster, Inc. (“Stone & Webster”), that may be\ncontained in the materials described in Article 2(b) hereof (the “Documents”), OPC and Recipient desire to enter into this Agreement which shall\napply to any review of Confidential Information contained in the Documents after the date hereof by Recipient. For the purposes of this\nAgreement, “Confidential Information” means the entirety of Documents identified in Section 2(b) below, but excludes any Publicly Disclosed\nInformation (as defined herein) or which Recipient has been authorized in writing by OPC to publicly disclose (excluding the disclosures\npermitted to be made by Recipient pursuant to Article 3.C below). For purposes of this Agreement, “Publicly Disclosed Information” means\nterms, conditions or other information that has become generally available to the public other than: (i) as a result of disclosure by Recipient, or\n(ii) any Confidential Information that Recipient knows has been disclosed by a third party (x) approved to receive such Confidential Information\nhereunder in violation of the terms of this Agreement or (y) in violation of any obligation of confidentiality of such third party similar to the\nterms of this Agreement.\n(b)\nThe Documents to which this Agreement shall apply are:\ni. the Engineering, Procurement and Construction Agreement between GPC, acting for itself and as agent for the other Owners\n(as such term is defined therein, the “Owners”), and a consortium consisting of Westinghouse and Stone & Webster\n(26) For Lender ’s Engineer ’s NDA, use first bracketed option; for each individual Lender’s Engineer employee’s NDA, use\nsecond bracketed\noption.\nExhibit L-2\n- Page1\n(collectively, the “Contractor”), dated as of April 8, 2008, as it may be amended from time to time, for the Project (the “EPC\nAgreement”);\nii. an executed copy of the Toshiba Guarantee, as it may be amended from time to time in the form attached as Exhibit V-1 to the\nEPC Agreement;\niii. an executed copy of the Shaw Guarantee, as it may be amended from time to time in the form attached as Exhibit V-2 to the\nEPC Agreement;\niv. an executed copy of the Software License (as it may be amended from time to time, the “Software License”) attached as\nExhibit M to the EPC Agreement;\nv. the Contract for AP1000 Fuel Fabrication, Design and Related Services, dated as of April 3, 2009, between Southern Nuclear\nOperating Company, Inc. (the “Operator”), acting as the agent of Georgia Power Company, collectively as owner, and\nWestinghouse, as amended by Amendment No. 1 dated as of June 21, 2012, (as it may be further amended from time to time, the\n“Fuel Fabrication Agreement”); any other contract entered into after the date hereof by GPC or the Operator for the supply of fuel\nassemblies and/or related required software for the Project, as it may be amended from time to time (each, a “Fuel Supply\nAgreement”); the Amended and Restated License Agreement dated February 9, 2012, between the Operator, for itself and as agent\nfor Alabama Power Company and Georgia Power Company, collectively, as licensee, and Westinghouse (as it may be amended\nfrom time to time, the “License Agreement”); the agreement (if any), to be entered into after the date of this Agreement by\nWestinghouse and the Owners or GPC (acting for itself and as agent for the other Owners) if the AP1000-compatible version of\nBest Estimate Analysis for Core Operation Nuclear - Direct Margin Monitor System and its related deliverables to be used in the\noperation of the Project (the “BEACON-DMM Software”) is not otherwise provided for the Project, pursuant to which the\nOwners will acquire the BEACON-DMM Software including a license for the use thereof (as such agreement may be amended\nfrom time to time, the “BEACON Software Agreement”);\nvi. each Monthly Status Report provided by Contractor to GPC pursuant to the EPC Agreement ;\nvii. each monthly construction status report filed by GPC with the Georgia Public Service Commission (“Georgia PSC”);\nExhibit L-2\n- Page2\nTM\nTM\nTM\nviii.\neach monthly project report delivered by the Operator to the co-owners of Vogtle Units 3 & 4;\nix. the level two schedule of significant development, construction and completion milestones for the completion of each Unit, in\neach case prepared by GPC, as updated from time to time;\nx. a copy of the written materials delivered by GPC, as agent for the co-owners of Vogtle Units 3 & 4, to the co-owners in\nconnection with any monthly project management board meeting;\nxi. invoices submitted by Contractor to Owners pursuant to the EPC Agreement;\nxii. any semi-annual construction monitoring reports filed with the Georgia PSC by GPC pursuant to the final amended\ncertification order and all orders on remand entered by the Georgia PSC in Docket No. 27800-U that contains any Confidential and\nProprietary Information;\nxiii.\nany notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to GPC, OPC or the Municipal Electric Authority of Georgia or any of its wholly owned\nsubsidiaries (each, a “DOE Borrower”) or the Operator or their participation in the Project, in each case that has, or could\nreasonably be expected to have, a Material Adverse Effect (as such term is defined in the DOE Loan Guarantee Agreements) or a\nmaterial adverse effect on the ability of the Project to be completed or operated, only to the extent such items contain Confidential\nand Proprietary Information;\nxiv. any notice and a copy of any of the following communications received by a DOE Borrower or the Operator from the NRC:\n(1) notice of a potential violation of severity level III or higher (or its equivalent in subsequent versions of the NRC Enforcement\nPolicy); (2) Red, Yellow or White NRC Inspection Finding (or its equivalent in subsequent versions of the Reactor Oversight\nPolicy); (3) notice to stop work or shut down or show cause; (4) Demand for Information under 10 CFR § 50.54(f) or 10 CFR §\n2.204; or (5) any other immediately effective, unilateral, docket-specific, non-routine communication requiring action by any\nlicensee with respect to the Project, only to the extent such items contain Confidential and Proprietary Information;\nExhibit L-2\n- Page3\nxv. any notice of any complaint, order, directive, claim, citation, designation or notice by any Governmental Authority (as such\nterm is defined in the DOE Loan Guarantee Agreements) with respect to the Project received by a DOE Borrower or the Operator\nrelating to any actual or potential material non-compliance with its then-existing obligations under Environmental Laws (as such\nterm is defined in the DOE Loan Guarantee Agreements) and any written description of any steps that DOE Borrower or the\nOperator is taking and proposes to take with respect to the matters described in such notice, only to the extent such items contain\nConfidential and Proprietary Information;\nxvi. notice and a copy of any stop work order issued by a DOE Borrower or the Operator with respect to any work on the Project,\nonly to the extent such items contain Confidential and Proprietary Information;\nxvii.\nany notice of any termination, amendment or material waiver or breach of, or material notices and material\ncorrespondence with respect to, the EPC Agreement, the Toshiba Guarantee, the Shaw Guarantee, the Software License, the Fuel\nFabrication Agreement, any other Fuel Supply Agreement, the BEACON Software Agreement (if any) or the License Agreement\nand any copy of any of the foregoing or any agreement, instrument or other document giving effect to any of the foregoing, only to\nthe extent such items contain Confidential and Proprietary Information;\nxviii.\nany notice of any event that constitutes an Event of Default, Potential Default, Mandatory Prepayment Event or Potential\nMandatory Prepayment Event (as such terms are defined in the DOE Loan Guarantee Agreements) and any written description of\nany steps any DOE Borrower has taken or proposes to take to remedy matters described in any such notice, only to the extent such\nitems contain Confidential and Proprietary Information;\nxix. any notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments with\nrespect to the foregoing, with respect to any DOE Borrower or the Operator or their participation in the Project, in each case that\nhas resulted in, or any DOE Borrower believes will result in, Public Inquiries (as such term is defined in the DOE Loan Guarantee\nAgreements), only to the extent such items contain Confidential and Proprietary Information; and\nxx. any lien waivers and releases, with respect to all work reflected in any invoice of the Contractor and, in the case of the invoice\nfor the final payment from the DOE Borrowers under the EPC Agreement, the Contractor’s affidavit, only to the extent such items\ncontain Confidential and Proprietary Information.\nExhibit L-2\n- Page4\n(c)\nNotwithstanding the foregoing, Confidential Information made available to Recipient pursuant to this Agreement shall\nnot include any such Confidential Information consisting of AP1000 engineering or design or related information of Contractor, or\nWestinghouse, or Stone & Webster individually, not included in the public version of the AP1000 Design Control Document, including as a\nrepresentative list of such information: calculations for safety-related systems and components; the Plant Design Model; instrumentation and\ncontrol functional, system, software and interface requirements and functional logic diagrams; designs, design specifications and qualification\nreports for safety-related and non-safety related equipment; systems design and design specification documents for safety-related and non-safety\nrelated systems; design change packages, including E&DCRs; instrumentation and control architecture diagrams, software verification and\nvalidation documentation, testing procedures and test results; component data packages; fabrication and construction drawings; and final plant\nas-built drawings.\n(d)\nTo the extent, as a result of any request from Recipient (or a request from DOE on behalf of Recipient) to be allowed\nto see any Confidential Information that has been redacted under Section 2(c), OPC obtains from Contractor, or Westinghouse or Stone &\nWebster individually, permission to disclose such redacted Confidential Information, such Confidential Information will be disclosed by OPC to\nRecipient in the same manner and under the same conditions as such redacted Confidential Information has been made available by Contractor,\nor Westinghouse or Stone & Webster individually, to OPC.\n3.\nIn connection with Recipient’s participation in providing the technical advisory and support services to the DOE under the Contract in\nconnection with the Project (the “Purpose”):\nA.\nRecipient acknowledges OPC may not disclose Confidential Information included in the Documents until and unless the\npersons to whom such Confidential Information is disclosed agree to keep such information, terms and conditions confidential as\nprovided herein and only to use such Confidential Information for the Purpose. Recipient by this Agreement agrees to keep the\nConfidential Information contained therein confidential, subject to the terms of this Agreement.\nB.\nRecipient hereby acknowledges, agrees and understands that the Confidential Information is confidential and proprietary\nbusiness, technical and financial information of OPC, Westinghouse and/or Stone & Webster, and the disclosure of Confidential\nInformation could cause substantial harm to the competitive and commercial interests of OPC and Contractor, or Westinghouse, or\nStone & Webster individually.\nC.\nRecipient hereby agrees and confirms that, pursuant to Article 3.A. above, Recipient will protect the confidentiality of such\nConfidential Information, including any information or analysis derived from it, and not disclose it to any third party, except as provided\nin this Article 3.C .\nExhibit L-2\n- Page5\n(1)\nSpecifically, Recipient will not disclose nor release any Confidential Information obtained in the course of review of the\nDocuments to anyone, either during or after the period of performance of the Contract, other than:\n(a)\nindividuals within Recipient’s organization who are directly concerned with the performance of the Contract and the\nPurpose, and who have executed a nondisclosure and non-use agreement in substantially the same form of this Agreement, or\nwho are secretarial or word processing personnel to whom Recipient has provided the Confidential Information solely for the\npurpose of Recipient’s performance of the Contract and the Purpose and who are under the same obligations of confidentiality\nand nonuse as the Recipient;\n(b)\nindividuals who are employees of the United States’ government in connection with their work in relation to the DOE\nBorrowers’ DOE Loan Guarantees for the Project, designated in writing, including by e-mail, by an attorney in the DOE,\nprovided (1) such individual employees of the United States’ government have confirmed to Recipient in writing, including by\ne-mail, that they have a need to know such Confidential Information in connection with their work in relation to the DOE\nBorrowers’ DOE Loan Guarantees for the Project;\n(c)\nwith respect to any such Confidential Information obtained in the course of review of the Documents listed in items\n(i) through (v) and (xiii) through (xx) of Article 2(b), to attorneys at Chadbourne & Parke LLP or Hunton & Williams LLP who\nhave confirmed to Recipient in writing, including by email, that they have entered into a confidentiality agreement with OPC\non terms similar to this Agreement with respect to such Documents; and\n(d)\nas required by law, including without limitation pursuant to direction or an order from a court or federal office (e.g .,\nthe Government Accountability Office) of competent jurisdiction, provided that Recipient shall follow the procedure set out in\nArticle 8 below.\n(2)\nFor any such disclosure described in this Article 3, Recipient shall minimize the amount of Confidential Information disclosed\nto only the Confidential Information that Recipient in good faith and in its discretion believes is required to be disclosed and shall\nreasonably cooperate with OPC or Contractor, or Westinghouse or Stone & Webster individually, in any efforts that OPC or Contractor,\nor Westinghouse or Stone & Webster individually, may take to limit disclosure of the Confidential Information.\n(3)\nRecipient warrants that it is not included in any United States Government published list of persons or entities whose export or\nimport privileges are in any way restricted. Recipient warrants that it shall not disclose any Confidential Information to any third parties\nif such third party is, at the time of the disclosure, included in any United States Government published list of persons or entities whose\nexport or import privileges are in any way restricted. Recipient acknowledges that Confidential Information may be subject to one or\nmore of the U.S. Government export control laws\nExhibit L-2\n- Page6\nand regulations, including without limit the U.S. Export Administration Regulations (EAR), and the regulations of the U.S. Department\nof Energy at 10 CFR Part 810. Accordingly, Recipient shall not transfer or disclose, or permit the transfer or disclosure in any medium,\nConfidential Information received under this Agreement to: (i) any person that is not a citizen, national, permanent resident alien or\n“Protected Person” of the United States; (ii) any foreign country; or (iii) any legal entity organized under the laws of a country other\nthan the United States, including without limit its employees, directors, owners, affiliated companies, or agents and representatives,\nwithout specific authorization from OPC and Westinghouse and only in accordance with applicable U.S . Government export control\nregulations.\n4.\nOPC makes no representation whatsoever (and none is to be implied or relied upon by Recipient) as to the sufficiency or accuracy of the\nConfidential Information provided hereunder, the ability of Recipient to use the Confidential Information for its intended purpose, or the result to\nbe obtained therefrom. GPC covenants that the Documents that OPC shall make available to the Recipient for its review shall be a true, correct\nand complete copy of the Documents as of the time that OPC makes the Documents available to the Recipient.\n5.\nRecipient hereby accepts responsibility for its own acts. To the extent that OPC, Westinghouse or Stone & Webster suffers any damage\nas a result of either (a) Recipient’s publication or disclosure of the Confidential Information in any way whatsoever to any unauthorized person\nor (b) the use of the Confidential Information by Recipient, Recipient shall be liable for any and all actual damages suffered by OPC,\nWestinghouse and/or Stone & Webster as a result of such unauthorized publication, disclosure or use, not to exceed $3,500,000. In addition,\nRecipient acknowledges that OPC, Westinghouse, and/or Stone &Webster may suffer irreparable harm as a result of Recipient’s actions under\neither (a) or (b) herein above, and Recipient hereby agrees that OPC, Westinghouse and/or Stone & Webster shall be entitled to seek an\ninjunction or other equitable relief should such action be taken by Recipient. For purposes of this Article 5 and Article 8 below, Westinghouse\nand/or Stone & Webster shall be considered third party beneficiaries hereunder.\n6.\nRecipient further agrees that Recipient will not have the right to receive electronic or hard copies of such Documents under this\nAgreement, but will be entitled to review the Documents from time to time during the term of Recipient’s services under the Contract in the\noffices of GPC in Atlanta, GA or at the Vogtle 3 & 4 Project site in Waynesboro, GA upon reasonable notice to GPC and Contractor.\n7.\nOPC acknowledges that in the performance of the Contract, Recipient is required to undertake a review of the Documents and may be\nrequired to prepare written summaries of Documents or analyses of the information contained therein for review by DOE and such individuals as\nset forth in Article 3.C(1)(b) and/or Article 3.C(1)(c) above. In Recipient’s review of the Documents, Recipient shall be entitled to prepare such\nwritten notes and analyses as Recipient shall deem appropriate for purposes of preparing such summaries or analyses. All such written\nsummaries, notes and analyses shall contain a prominent statement on the cover page stating the following: “This document contains\nConfidential Information of OPC, Westinghouse, Stone & Webster, and/or their partners and suppliers.” No such summary, note or analysis, nor\nExhibit L-2\n- Page7\nany excerpt thereof, shall be disclosed by Recipient to any third party except as provided in Article 3.C above.\n8.\nIf Recipient is notified that it is required by law, including without limitation pursuant to direction or an order from a court or federal\noffice (e.g ., the Government Accountability Office) of competent jurisdiction (including by oral questions, interrogatories, subpoena, government\ninvestigative demand or similar process) to release Confidential Information, upon Recipient’s receipt of any such notice, Recipient shall provide\nprompt written notice thereof to OPC, Westinghouse and Stone & Webster, by email, fax or overnight courier at their respective addresses below\nor such other addresses as they may notify to Recipient in writing from time to time, so as to allow OPC or Contractor, or Westinghouse or\nStone & Webster individually, the opportunity to seek to limit the extent of disclosure of the Confidential Information and/or to seek a protective\norder or other appropriate remedy (and/or waive compliance with the provisions of this Agreement). If such limitation or protective order or\nother appropriate remedy is not obtained before Recipient is legally required to produce such Confidential Information (or compliance with the\nprovisions of this Agreement is waived), Recipient after consultation with OPC and Westinghouse, shall disclose only the minimum amount of\nConfidential Information that Recipient in good faith and in its discretion believes is legally required.\nIf to Westinghouse:\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Frank G. Gill\nCommercial Director, Vogtle 3 & 4 Project\nFacsimile: 1-724-940-8502\nEmail: gillfg@westinghouse.com\nWith a copy to:\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Sr. Vice President & General Counsel\nFacsimile: 1-724-940-8508\nEmail: sweenemt@westinghouse.com\nIf to Stone & Webster:\nStone & Webster, Inc.\n128 South Tryon Street\nCharlotte, NC 28202\nAttention: Senior Associate General Counsel\nFacsimile: (704) 331-6001\nEmail: Mark McKain@cbi.com\nExhibit L-2\n- Page8\nWith a copy to:\nStone & Webster, Inc.\n100 Technology Center Drive\nStoughton, Massachusetts 02072\nAttention: Nuclear Division Counsel\nFacsimile: 617-589-7575\nEmail: Ken.Jenkins@cbi.com\n9.\nRecipient acknowledges that the Confidential Information will only be utilized in accordance with the task or subtask assignment\npursuant to the Contract for the Purpose and acknowledges that the disclosure of this Confidential Information is otherwise restricted by OPC as\nsubmitter.\n10.\nThis Agreement shall be governed in accordance with the laws of the State of New York without giving effect to any choice of law,\nprovision, or rule (whether of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than New\nYork.\nExhibit L-2\n- Page9\nACCEPTED AND AGREED\nBy:\nName:\nTitle:\nDate:\nAddress for Notices:\nE-mail:\nPhone:\nFax:\nACKNOWLEDGED AND AGREED\nOGLETHORPE POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION)\nBy:\nName:\nTitle:\nDate:\nAddress for Notices:\nOglethorpe Power Corporation\n2100 East Exchange Place\nTucker, Georgia 30034-5336\nAttention: Chief Financial Officer\nFax: 770-270-7977\nEmail: betsy.higgins@opc.com\nWith a copy to:\nOglethorpe Power Corporation\n2100 East Exchange Place\nTucker, GA 30084-5336\nAttention: General Counsel\nFax: 770-270-7977\nE-mail: annalisa.bloodworth@opc.com\nExhibit L-2 - Page 10	Exhibit I.-2\nto Amended and Restated Loan Guarantee Agreement\nFORM OF NONDISCLOSURE AGREEMENT FOR LENDER’S ENGINEER\n[FORM OF] NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated [ ] and is between [ ,a corporation] [[ ], an employee\nof 1(26) (“Recipient”) and Oglethorpe Power Corporation (An Electric Membership Corporation), an electric membership corporation\norganized and existing under the laws of Georgia (“OPC”). Capitalized terms used but not otherwise defined in this Agreement have the\nmeanings provided in the EPC Agreement, as defined in Article 2(b)(i) below.\n1. Recipient is participating in providing technical advisory and support services to the Department of Energy, Loan Programs\nOffice (“DOE”), under Contract No. DE-DT002463 (the “Contract”), in connection with (a) DOE’s negotiation of certain loan guarantee\nagreements and related financing documents between DOE and each of Georgia Power Company (“GPC”), OPC and/or the Municipal Electric\nAuthority of Georgia or any of its wholly owned subsidiaries (each, a “DOE Borrower”) pursuant to which DOE would guarantee the repayment\nof a loan to such DOE Borrower for the construction, operation and ownership of Vogtle Units 3 and 4 (the “Project”) and (b) the related due\ndiligence (each such guarantee, a “DOE Loan Guarantee”; such loan guarantee agreements collectively, the “DOE Loan Guarantee\nAgreements”).\n2. @) In order to permit Recipient to review Confidential Information (as hereinafter defined) of OPC and/or its Contractor,\na consortium composed of Westinghouse Electric Company, LLC (“Westinghouse”) and Stone & Webster, Inc. (“Stone & Webster”), that may be\ncontained in the materials described in Article 2(b) hereof (the “Documents”), OPC and Recipient desire to enter into this Agreement which shall\napply to any review of Confidential Information contained in the Documents after the date hereof by Recipient. For the purposes of this\nAgreement, “Confidential Information” means the entirety of Documents identified in Section 2(b) below, but excludes any Publicly Disclosed\nInformation (as defined herein) or which Recipient has been authorized in writing by OPC to publicly disclose (excluding the disclosures\npermitted to be made by Recipient pursuant to Article 3.C below). For purposes of this Agreement, “Publicly Disclosed Information” means\nterms, conditions or other information that has become generally available to the public other than: (i) as a result of disclosure by Recipient, or\n(ii) any Confidential Information that Recipient knows has been disclosed by a third party (x) approved to receive such Confidential Information\nhereunder in violation of the terms of this Agreement or (y) in violation of any obligation of confidentiality of such third party similar to the\nterms of this Agreement.\n(b) The Documents to which this Agreement shall apply are:\ni.  the Engineering, Procurement and Construction Agreement between GPC, acting for itself and as agent for the other Owners\n(as such term is defined therein, the “Owners”), and a consortium consisting of Westinghouse and Stone & Webster\n(26) For Lender’s Engineer’s NDA, use first bracketed option; for each individual Lender’s Engineer employee’s NDA, use  second bracketed\noption.\nExhibit L-2 - Page 1\n \n(collectively, the “Contractor”), dated as of April 8, 2008, as it may be amended from time to time, for the Project (the “EPC\nAgreement”);\nii. an executed copy of the Toshiba Guarantee, as it may be amended from time to time in the form attached as Exhibit V-1 to the\nEPC Agreement;\niii. an executed copy of the Shaw Guarantee, as it may be amended from time to time in the form attached as Exhibit V-2 to the\nEPC Agreement;\niv. an executed copy of the Software License (as it may be amended from time to time, the “Software License”) attached as\nExhibit M to the EPC Agreement;\nv. the Contract for AP1000 Fuel Fabrication, Design and Related Services, dated as of April 3, 2009, between Southern Nuclear\nOperating Company, Inc. (the “Operator”), acting as the agent of Georgia Power Company, collectively as owner, and\nWestinghouse, as amended by Amendment No. 1 dated as of June 21, 2012, (as it may be further amended from time to time, the\n“Fuel Fabrication Agreement”); any other contract entered into after the date hereof by GPC or the Operator for the supply of fuel\nassemblies and/or related required software for the Project, as it may be amended from time to time (each, a “Fuel Supply\nAgreement”); the Amended and Restated License Agreement dated February 9, 2012, between the Operator, for itself and as agent\nfor Alabama Power Company and Georgia Power Company, collectively, as licensee, and Westinghouse (as it may be amended\nfrom time to time, the “License Agreement”); the agreement (if any), to be entered into after the date of this Agreement by\nWestinghouse and the Owners or GPC (acting for itself and as agent for the other Owners) if the AP1000-compatible version of\nBest Estimate Analysis for Core Operation Nuclear - Direct Margin Monitor™ System and its related deliverables to be used in the\noperation of the Project (the “BEACON-DMM™M Software”) is not otherwise provided for the Project, pursuant to which the\nOwners will acquire the BEACON-DMM™ Software including a license for the use thereof (as such agreement may be amended\nfrom time to time, the “BEACON Software Agreement”);\n \nvi. each Monthly Status Report provided by Contractor to GPC pursuant to the EPC Agreement ;\nvii. each monthly construction status report filed by GPC with the Georgia Public Service Commission (“Georgia PSC”);\nExhibit L-2 - Page 2\n \nviil. each monthly project report delivered by the Operator to the co-owners of Vogtle Units 3 & 4;\nix. the level two schedule of significant development, construction and completion milestones for the completion of each Unit, in\neach case prepared by GPC, as updated from time to time;\nx. a copy of the written materials delivered by GPC, as agent for the co-owners of Vogtle Units 3 & 4, to the co-owners in\nconnection with any monthly project management board meeting;\nxi. invoices submitted by Contractor to Owners pursuant to the EPC Agreement;\nxii. any semi-annual construction monitoring reports filed with the Georgia PSC by GPC pursuant to the final amended\ncertification order and all orders on remand entered by the Georgia PSC in Docket No. 27800-U that contains any Confidential and\nProprietary Information;\nxiil. any notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to GPC, OPC or the Municipal Electric Authority of Georgia or any of its wholly owned\nsubsidiaries (each, a “DOE Borrower”) or the Operator or their participation in the Project, in each case that has, or could\nreasonably be expected to have, a Material Adverse Effect (as such term is defined in the DOE Loan Guarantee Agreements) or a\nmaterial adverse effect on the ability of the Project to be completed or operated, only to the extent such items contain Confidential\nand Proprietary Information;\nxiv. any notice and a copy of any of the following communications received by a DOE Borrower or the Operator from the NRC:\n(1) notice of a potential violation of severity level III or higher (or its equivalent in subsequent versions of the NRC Enforcement\nPolicy); (2) Red, Yellow or White NRC Inspection Finding (or its equivalent in subsequent versions of the Reactor Oversight\nPolicy); (3) notice to stop work or shut down or show cause; (4) Demand for Information under 10 CFR § 50.54(f) or 10 CFR §\n2.204; or (5) any other immediately effective, unilateral, docket-specific, non-routine communication requiring action by any\nlicensee with respect to the Project, only to the extent such items contain Confidential and Proprietary Information;\nExhibit L-2 - Page 3\n \nxv. any notice of any complaint, order, directive, claim, citation, designation or notice by any Governmental Authority (as such\nterm is defined in the DOE Loan Guarantee Agreements) with respect to the Project received by a DOE Borrower or the Operator\nrelating to any actual or potential material non-compliance with its then-existing obligations under Environmental Laws (as such\nterm is defined in the DOE Loan Guarantee Agreements) and any written description of any steps that DOE Borrower or the\nOperator is taking and proposes to take with respect to the matters described in such notice, only to the extent such items contain\nConfidential and Proprietary Information;\nxvi. notice and a copy of any stop work order issued by a DOE Borrower or the Operator with respect to any work on the Project,\nonly to the extent such items contain Confidential and Proprietary Information;\nXVil. any notice of any termination, amendment or material waiver or breach of, or material notices and material\ncorrespondence with respect to, the EPC Agreement, the Toshiba Guarantee, the Shaw Guarantee, the Software License, the Fuel\nFabrication Agreement, any other Fuel Supply Agreement, the BEACON Software Agreement (if any) or the License Agreement\nand any copy of any of the foregoing or any agreement, instrument or other document giving effect to any of the foregoing, only to\nthe extent such items contain Confidential and Proprietary Information;\nXViii. any notice of any event that constitutes an Event of Default, Potential Default, Mandatory Prepayment Event or Potential\nMandatory Prepayment Event (as such terms are defined in the DOE Loan Guarantee Agreements) and any written description of\nany steps any DOE Borrower has taken or proposes to take to remedy matters described in any such notice, only to the extent such\nitems contain Confidential and Proprietary Information;\nxix. any notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments with\nrespect to the foregoing, with respect to any DOE Borrower or the Operator or their participation in the Project, in each case that\nhas resulted in, or any DOE Borrower believes will result in, Public Inquiries (as such term is defined in the DOE Loan Guarantee\nAgreements), only to the extent such items contain Confidential and Proprietary Information; and\nxx. any lien waivers and releases, with respect to all work reflected in any invoice of the Contractor and, in the case of the invoice\nfor the final payment from the DOE Borrowers under the EPC Agreement, the Contractor’s affidavit, only to the extent such items\ncontain Confidential and Proprietary Information.\nExhibit L-2 - Page 4\n \n(0 Notwithstanding the foregoing, Confidential Information made available to Recipient pursuant to this Agreement shall\nnot include any such Confidential Information consisting of AP1000 engineering or design or related information of Contractor, or\nWestinghouse, or Stone & Webster individually, not included in the public version of the AP1000 Design Control Document, including as a\nrepresentative list of such information: calculations for safety-related systems and components; the Plant Design Model; instrumentation and\ncontrol functional, system, software and interface requirements and functional logic diagrams; designs, design specifications and qualification\nreports for safety-related and non-safety related equipment; systems design and design specification documents for safety-related and non-safety\nrelated systems; design change packages, including E&DCRs; instrumentation and control architecture diagrams, software verification and\nvalidation documentation, testing procedures and test results; component data packages; fabrication and construction drawings; and final plant\nas-built drawings.\n(d) To the extent, as a result of any request from Recipient (or a request from DOE on behalf of Recipient) to be allowed\nto see any Confidential Information that has been redacted under Section 2(c), OPC obtains from Contractor, or Westinghouse or Stone &\nWebster individually, permission to disclose such redacted Confidential Information, such Confidential Information will be disclosed by OPC to\nRecipient in the same manner and under the same conditions as such redacted Confidential Information has been made available by Contractor,\nor Westinghouse or Stone & Webster individually, to OPC.\n3. In connection with Recipient’s participation in providing the technical advisory and support services to the DOE under the Contract in\nconnection with the Project (the “Purpose™):\nA. Recipient acknowledges OPC may not disclose Confidential Information included in the Documents until and unless the\npersons to whom such Confidential Information is disclosed agree to keep such information, terms and conditions confidential as\nprovided herein and only to use such Confidential Information for the Purpose. Recipient by this Agreement agrees to keep the\nConfidential Information contained therein confidential, subject to the terms of this Agreement.\nB. Recipient hereby acknowledges, agrees and understands that the Confidential Information is confidential and proprietary\nbusiness, technical and financial information of OPC, Westinghouse and/or Stone & Webster, and the disclosure of Confidential\nInformation could cause substantial harm to the competitive and commercial interests of OPC and Contractor, or Westinghouse, or\nStone & Webster individually.\nC. Recipient hereby agrees and confirms that, pursuant to Article 3.A. above, Recipient will protect the confidentiality of such\nConfidential Information, including any information or analysis derived from it, and not disclose it to any third party, except as provided\nin this Article 3.C.\nExhibit L-2 - Page 5\n \n)\nSpecifically, Recipient will not disclose nor release any Confidential Information obtained in the course of review of the\nDocuments to anyone, either during or after the period of performance of the Contract, other than: @)\n(a) individuals within Recipient’s organization who are directly concerned with the performance of the Contract and the\nPurpose, and who have executed a nondisclosure and non-use agreement in substantially the same form of this Agreement, or\nwho are secretarial or word processing personnel to whom Recipient has provided the Confidential Information solely for the\npurpose of Recipient’s performance of the Contract and the Purpose and who are under the same obligations of confidentiality\nand nonuse as the Recipient;\n(b) individuals who are employees of the United States’ government in connection with their work in relation to the DOE\nBorrowers’ DOE Loan Guarantees for the Project, designated in writing, including by e-mail, by an attorney in the DOE,\nprovided (1) such individual employees of the United States’ government have confirmed to Recipient in writing, including by\ne-mail, that they have a need to know such Confidential Information in connection with their work in relation to the DOE\nBorrowers’ DOE Loan Guarantees for the Project;\n(0 with respect to any such Confidential Information obtained in the course of review of the Documents listed in items\n(i) through (v) and (xiii) through (xx) of Article 2(b), to attorneys at Chadbourne & Parke LLP or Hunton & Williams LLP who\nhave confirmed to Recipient in writing, including by email, that they have entered into a confidentiality agreement with OPC\non terms similar to this Agreement with respect to such Documents; and\n(d) as required by law, including without limitation pursuant to direction or an order from a court or federal office (e.g.,\nthe Government Accountability Office) of competent jurisdiction, provided that Recipient shall follow the procedure set out in\nArticle 8 below.\nFor any such disclosure described in this Article 3, Recipient shall minimize the amount of Confidential Information disclosed\nto only the Confidential Information that Recipient in good faith and in its discretion believes is required to be disclosed and shall reasonably cooperate with OPC or Contractor, or Westinghouse or Stone & Webster individually, in any efforts that OPC or Contractor, or Westinghouse or Stone & Webster individually, may take to limit disclosure of the Confidential Information. ©)\nRecipient warrants that it is not included in any United States Government published list of persons or entities whose export or\nimport privileges are in any way restricted. Recipient warrants that it shall not disclose any Confidential Information to any third parties if such third party is, at the time of the disclosure, included in any United States Government published list of persons or entities whose export or import privileges are in any way restricted. Recipient acknowledges that Confidential Information may be subject to one or more of the U.S. Government export control laws Exhibit L-2 - Page 6\n \nand regulations, including without limit the U.S. Export Administration Regulations (EAR), and the regulations of the U.S. Department\nof Energy at 10 CFR Part 810. Accordingly, Recipient shall not transfer or disclose, or permit the transfer or disclosure in any medium,\nConfidential Information received under this Agreement to: (i) any person that is not a citizen, national, permanent resident alien or\n“Protected Person” of the United States; (ii) any foreign country; or (iii) any legal entity organized under the laws of a country other\nthan the United States, including without limit its employees, directors, owners, affiliated companies, or agents and representatives,\nwithout specific authorization from OPC and Westinghouse and only in accordance with applicable U.S. Government export control\nregulations.\n4. OPC makes no representation whatsoever (and none is to be implied or relied upon by Recipient) as to the sufficiency or accuracy of the\nConfidential Information provided hereunder, the ability of Recipient to use the Confidential Information for its intended purpose, or the result to\nbe obtained therefrom. GPC covenants that the Documents that OPC shall make available to the Recipient for its review shall be a true, correct\nand complete copy of the Documents as of the time that OPC makes the Documents available to the Recipient.\n5. Recipient hereby accepts responsibility for its own acts. To the extent that OPC, Westinghouse or Stone & Webster suffers any damage\nas a result of either (a) Recipient’s publication or disclosure of the Confidential Information in any way whatsoever to any unauthorized person\nor (b) the use of the Confidential Information by Recipient, Recipient shall be liable for any and all actual damages suffered by OPC,\nWestinghouse and/or Stone & Webster as a result of such unauthorized publication, disclosure or use, not to exceed $3,500,000. In addition,\nRecipient acknowledges that OPC, Westinghouse, and/or Stone &Webster may suffer irreparable harm as a result of Recipient’s actions under\neither (a) or (b) herein above, and Recipient hereby agrees that OPC, Westinghouse and/or Stone & Webster shall be entitled to seek an\ninjunction or other equitable relief should such action be taken by Recipient. For purposes of this Article 5 and Article 8 below, Westinghouse\nand/or Stone & Webster shall be considered third party beneficiaries hereunder.\n6. Recipient further agrees that Recipient will not have the right to receive electronic or hard copies of such Documents under this\nAgreement, but will be entitled to review the Documents from time to time during the term of Recipient’s services under the Contract in the\noffices of GPC in Atlanta, GA or at the Vogtle 3 & 4 Project site in Waynesboro, GA upon reasonable notice to GPC and Contractor.\n7. OPC acknowledges that in the performance of the Contract, Recipient is required to undertake a review of the Documents and may be\nrequired to prepare written summaries of Documents or analyses of the information contained therein for review by DOE and such individuals as\nset forth in Article 3.C(1)(b) and/or Article 3.C(1)(c) above. In Recipient’s review of the Documents, Recipient shall be entitled to prepare such\nwritten notes and analyses as Recipient shall deem appropriate for purposes of preparing such summaries or analyses. All such written\nsummaries, notes and analyses shall contain a prominent statement on the cover page stating the following: “This document contains\nConfidential Information of OPC, Westinghouse, Stone & Webster, and/or their partners and suppliers.” No such summary, note or analysis, nor\nExhibit L-2 - Page 7\n \nany excerpt thereof, shall be disclosed by Recipient to any third party except as provided in Article 3.C above.\n8. If Recipient is notified that it is required by law, including without limitation pursuant to direction or an order from a court or federal\noffice (e.g., the Government Accountability Office) of competent jurisdiction (including by oral questions, interrogatories, subpoena, government\ninvestigative demand or similar process) to release Confidential Information, upon Recipient’s receipt of any such notice, Recipient shall provide\nprompt written notice thereof to OPC, Westinghouse and Stone & Webster, by email, fax or overnight courier at their respective addresses below\nor such other addresses as they may notify to Recipient in writing from time to time, so as to allow OPC or Contractor, or Westinghouse or\nStone & Webster individually, the opportunity to seek to limit the extent of disclosure of the Confidential Information and/or to seek a protective\norder or other appropriate remedy (and/or waive compliance with the provisions of this Agreement). If such limitation or protective order or\nother appropriate remedy is not obtained before Recipient is legally required to produce such Confidential Information (or compliance with the\nprovisions of this Agreement is waived), Recipient after consultation with OPC and Westinghouse, shall disclose only the minimum amount of\nConfidential Information that Recipient in good faith and in its discretion believes is legally required.\nIf to Westinghouse:\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Frank G. Gill\nCommercial Director, Vogtle 3 & 4 Project\nFacsimile: 1-724-940-8502\nEmail: gillfg@westinghouse.com\nWith a copy to:\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Sr. Vice President & General Counsel\nFacsimile: 1-724-940-8508\nEmail: sweenemt@westinghouse.com\nIf to Stone & Webster:\nStone & Webster, Inc.\n128 South Tryon Street\nCharlotte, NC 28202\nAttention: Senior Associate General Counsel\nFacsimile: (704) 331-6001\nEmail: Mark McKain@cbi.com\nExhibit L-2 - Page 8\n \nWith a copy to:\nStone & Webster, Inc.\n100 Technology Center Drive\nStoughton, Massachusetts 02072\nAttention: Nuclear Division Counsel\nFacsimile: 617-589-7575\nEmail: Ken.Jenkins@cbi.com\n9. Recipient acknowledges that the Confidential Information will only be utilized in accordance with the task or subtask assignment\npursuant to the Contract for the Purpose and acknowledges that the disclosure of this Confidential Information is otherwise restricted by OPC as\nsubmitter.\n10. This Agreement shall be governed in accordance with the laws of the State of New York without giving effect to any choice of law,\nprovision, or rule (whether of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than New\nYork.\nExhibit L-2 - Page 9\n \nACCEPTED AND AGREED\nBy:\nName:\nTitle:\nDate:\nAddress for Notices:\nE-mail:\nPhone:\nFax:\nACKNOWLEDGED AND AGREED\nOGLETHORPE POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION)\nBy:\nName:\nTitle:\nDate:\nAddress for Notices:\nOglethorpe Power Corporation\n2100 East Exchange Place\nTucker, Georgia 30034-5336\nAttention: Chief Financial Officer\nFax: 770-270-7977\nEmail: betsy.higgins@opc.com\nWith a copy to:\nOglethorpe Power Corporation\n2100 East Exchange Place\nTucker, GA 30084-5336\nAttention: General Counsel\nFax: 770-270-7977\nE-mail: annalisa.bloodworth@opc.com\nExhibit L-2 - Page 10\n	Exhibit L-2\nto Amended and Restated Loan Guarantee Agreement\nFORM OF NONDISCLOSURE AGREEMENT FOR LENDER'S ENGINEER\n[FORM OF] NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this "Agreement") is dated a\n1 and is between\ncorporation] [[\n], an employee\nof\n1(26) ("Recipient") and Oglethorpe Power Corporation (An Electric Membership Corporation), an electric membership corporation\norganized and existing under the laws of Georgia ("OPC"). Capitalized terms used but not otherwise defined in this Agreement have the\nmeanings provided in the EPC Agreement, as defined in Article 2(b)(i) below.\n1.\nRecipient is participating in providing technical advisory and support services to the Department of Energy, Loan Programs\nOffice ("DOE"), under Contract No. DE-DT002463 (the "Contract"), in connection with (a) DOE's negotiation of certain loan guarantee\nagreements and related financing documents between DOE and each of Georgia Power Company ("GPC"), OPC and/or the Municipal Electric\nAuthority of Georgia or any of its wholly owned subsidiaries (each, a "DOE Borrower") pursuant to which DOE would guarantee the repayment\nof a loan to such DOE Borrower for the construction, operation and ownership of Vogtle Units 3 and 4 (the "Project") and (b) the related due\ndiligence (each such guarantee, a "DOE Loan Guarantee"; such loan guarantee agreements collectively, the "DOE Loan Guarantee\nAgreements").\n2.\n(a)\nIn order to permit Recipient to review Confidential Information (as hereinafter defined) of OPC and/or its Contractor,\na consortium composed of Westinghouse Electric Company, LLC ("Westinghouse") and Stone & Webster, Inc. ("Stone & Webster"), that may be\ncontained in the materials described in Article 2(b) hereof (the "Documents"), OPC and Recipient desire to enter into this Agreement which shall\napply to any review of Confidential Information contained in the Documents after the date hereof by Recipient. For the purposes of this\nAgreement, "Confidential Information" means the entirety of Documents identified in Section 2(b) below, but excludes any Publicly Disclosed\nInformation (as defined herein) or which Recipient has been authorized in writing by OPC to publicly disclose (excluding the disclosures\npermitted to be made by Recipient pursuant to Article 3.C below). For purposes of this Agreement, "Publicly Disclosed Information" means\nterms, conditions or other information that has become generally available to the public other than: (i) as a result of disclosure by Recipient, or\n(ii) any Confidential Information that Recipient knows has been disclosed by a third party (x) approved to receive such Confidential Information\nhereunder in violation of the terms of this Agreement or (y) in violation of any obligation of confidentiality of such third party similar to the\nterms of this Agreement.\n(b)\nThe Documents to which this Agreement shall apply are:\ni.\nthe Engineering, Procurement and Construction Agreement between GPC, acting for itself and as agent for the other Owners\n(as such term is defined therein, the "Owners"), and a consortium consisting of Westinghouse and Stone & Webster\n(26) For Lender's Engineer's NDA, use first bracketed option; for each individual Lender's Engineer employee's NDA, use\nsecond bracketed\noption.\nExhibit L-2 Page 1\n(collectively, the "Contractor"), dated as of April 8, 2008, as it may be amended from time to time, for the Project (the "EPC\nAgreement");\nii.\nan executed copy of the Toshiba Guarantee, as it may be amended from time to time in the form attached as Exhibit V-1 to the\nEPC Agreement;\niii. an executed copy of the Shaw Guarantee, as it may be amended from time to time in the form attached as Exhibit V-2 to the\nEPC Agreement;\niv. an executed copy of the Software License (as it may be amended from time to time, the "Software License") attached as\nExhibit M to the EPC Agreement;\nV. the Contract for AP1000 Fuel Fabrication, Design and Related Services, dated as of April 3, 2009, between Southern Nuclear\nOperating Company, Inc. (the "Operator"), acting as the agent of Georgia Power Company, collectively as owner, and\nWestinghouse, as amended by Amendment No. 1 dated as of June 21, 2012, (as it may be further amended from time to time, the\n"Fuel Fabrication Agreement"); any other contract entered into after the date hereof by GPC or the Operator for the supply of fuel\nassemblies and/or related required software for the Project, as it may be amended from time to time (each, a "Fuel Supply.\nAgreement"); the Amended and Restated License Agreement dated February 9, 2012, between the Operator, for itself and as agent\nfor Alabama Power Company and Georgia Power Company, collectively, as licensee, and Westinghouse (as it may be amended\nfrom time to time, the "License Agreement"); the agreement (if any), to be entered into after the date of this Agreement by\nWestinghouse and the Owners or GPC (acting for itself and as agent for the other Owners) if the AP1000-compatible version of\nBest Estimate Analysis for Core Operation Nuclear Direct Margin MonitorTM System and its related deliverables to be used in the\noperation of the Project (the BEACON-DMMTM Soft Software") is not otherwise provided for the Project, pursuant to which the\nOwners will acquire the BEACON-DMMTM Software including a license for the use thereof (as such agreement may be amended\nfrom time to time, the "BEACON Software Agreement");\nvi. each Monthly Status Report provided by Contractor to GPC pursuant to the EPC Agreement\nvii. each monthly construction status report filed by GPC with the Georgia Public Service Commission ("GeorgiaPs PSC");\nExhibit L-2 - Page 2\nviii.\neach monthly project report delivered by the Operator to the cO-owners of Vogtle Units 3 & 4;\nix. the level two schedule of significant development, construction and completion milestones for the completion of each Unit, in\neach case prepared by GPC, as updated from time to time;\nX.\na copy of the written materials delivered by GPC, as agent for the cO-owners of Vogtle Units 3 & 4, to the cO-owners in\nconnection with any monthly project management board meeting;\nxi. invoices submitted by Contractor to Owners pursuant to the EPC Agreement;\nxii. any semi-annual construction monitoring reports filed with the Georgia PSC by GPC pursuant to the final amended\ncertification order and all orders on remand entered by the Georgia PSC in Docket No. 27800-U that contains any Confidential and\nProprietary Information;\nxiii.\nany notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to GPC, OPC or the Municipal Electric Authority of Georgia or any of its wholly owned\nsubsidiaries (each, a "DOE Borrower") or the Operator or their participation in the Project, in each case that has, or could\nreasonably be expected to have, a Material Adverse Effect (as such term is defined in the DOE Loan Guarantee Agreements) or a\nmaterial adverse effect on the ability of the Project to be completed or operated, only to the extent such items contain Confidential\nand Proprietary Information;\nxiv. any notice and a copy of any of the following communications received by a DOE Borrower or the Operator from the NRC:\n(1) notice of a potential violation of severity level III or higher (or its equivalent in subsequent versions of the NRC Enforcement\nPolicy); (2) Red, Yellow or White NRC Inspection Finding (or its equivalent in subsequent versions of the Reactor Oversight\nPolicy); (3) notice to stop work or shut down or show cause; (4) Demand for Information under 10 CFR S 50.54(f) or 10 CFR S\n2.204; or (5) any other immediately effective, unilateral, docket-specific, non-routine communication requiring action by any\nlicensee with respect to the Project, only to the extent such items contain Confidential and Proprietary Information;\nExhibit L-2 Page 3\nXV. any notice of any complaint, order, directive, claim, citation, designation or notice by any Governmental Authority (as such\nterm is defined in the DOE Loan Guarantee Agreements) with respect to the Project received by a DOE Borrower or the Operator\nrelating to any actual or potential material non-compliance with its then-existing obligations under Environmental Laws (as such\nterm is defined in the DOE Loan Guarantee Agreements) and any written description of any steps that DOE Borrower or the\nOperator is taking and proposes to take with respect to the matters described in such notice, only to the extent such items contain\nConfidential and Proprietary Information;\nxvi. notice and a copy of any stop work order issued by a DOE Borrower or the Operator with respect to any work on the Project,\nonly to the extent such items contain Confidential and Proprietary Information;\nxvii.\nany notice of any termination, amendment or material waiver or breach of, or material notices and material\ncorrespondence with respect to, the EPC Agreement, the Toshiba Guarantee, the Shaw Guarantee, the Software License, the Fuel\nFabrication Agreement, any other Fuel Supply Agreement, the BEACON Software Agreement (if any) or the License Agreement\nand any copy of any of the foregoing or any agreement, instrument or other document giving effect to any of the foregoing, only to\nthe extent such items contain Confidential and Proprietary Information;\nxviii.\nany notice of any event that constitutes an Event of Default, Potential Default, Mandatory Prepayment Event or Potential\nMandatory Prepayment Event (as such terms are defined in the DOE Loan Guarantee Agreements) and any written description of\nany steps any DOE Borrower has taken or proposes to take to remedy matters described in any such notice, only to the extent such\nitems contain Confidential and Proprietary Information;\nxix. any notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments with\nrespect to the foregoing, with respect to any DOE Borrower or the Operator or their participation in the Project, in each case that\nhas resulted in, or any DOE Borrower believes will result in, Public Inquiries (as such term is defined in the DOE Loan Guarantee\nAgreements), only to the extent such items contain Confidential and Proprietary Information; and\nXX. any lien waivers and releases, with respect to all work reflected in any invoice of the Contractor and, in the case of the invoice\nfor the final payment from the DOE Borrowers under the EPC Agreement, the Contractor's affidavit, only to the extent such items\ncontain Confidential and Proprietary Information.\nExhibit L-2 - Page 4\n(c)\nNotwithstanding the foregoing, Confidential Information made available to Recipient pursuant to this Agreement shall\nnot include any such Confidential Information consisting of AP1000 engineering or design or related information of Contractor, or\nWestinghouse, or Stone & Webster individually, not included in the public version of the AP1000 Design Control Document, including as\na\nrepresentative list of such information: calculations for safety-related systems and components; the Plant Design Model; instrumentation and\ncontrol functional, system, software and interface requirements and functional logic diagrams; designs, design specifications and qualification\nreports for safety-related and non-safety related equipment; systems design and design specification documents for safety-related and non-safety\nrelated systems; design change packages, including E&DCRs; instrumentation and control architecture diagrams, software verification and\nvalidation\ndocumentation, testing procedures and test results; component data packages; fabrication and construction drawings; and final plant\nas-built drawings.\n(d)\nTo the extent, as a result of any request from Recipient (or a request from DOE on behalf of Recipient) to be allowed\nto see any Confidential Information that has been redacted under Section 2(c), OPC obtains from Contractor, or Westinghouse or Stone &\nWebster individually, permission to disclose such redacted Confidential Information, such Confidential Information will be disclosed by OPC to\nRecipient in the same manner and under the same conditions as such redacted Confidential Information has been made available by Contractor,\nor Westinghouse or Stone & Webster individually, to OPC.\n3.\nIn connection with Recipient's participation in providing the technical advisory and support services to the DOE under the Contract in\nconnection with the Project (the "Purpose"):\nA.\nRecipient acknowledges OPC may not disclose Confidential Information included in the Documents until and unless the\npersons to whom such Confidential Information is disclosed agree to keep such information, terms and conditions confidential as\nprovided herein and only to use such Confidential Information for the Purpose. Recipient by this Agreement agrees to keep the\nConfidential Information contained therein confidential, subject to the terms of this Agreement.\nB.\nRecipient hereby acknowledges, agrees and understands that the Confidential Information is confidential and proprietary\nbusiness, technical and financial information of OPC, Westinghouse and/or Stone & Webster, and the disclosure of Confidential\nInformation could cause substantial harm to the competitive and commercial interests of OPC and Contractor, or Westinghouse, or\nStone & Webster individually.\nC.\nRecipient hereby agrees and confirms that, pursuant to Article 3.A. above, Recipient will protect the confidentiality of such\nConfidential Information, including any information or analysis derived from it, and not disclose it to any third party, except as provided\nin this Article 3.C.\nExhibit L-2 Page 5\n(1)\nSpecifically, Recipient will not disclose nor release any Confidential Information obtained in the course of review of the\nDocuments to anyone, either during or after the period of performance of the Contract, other than:\n(a)\nindividuals within Recipient's organization who are directly concerned with the performance of the Contract and the\nPurpose, and who have executed a nondisclosure and non-use agreement in substantially the same form of this Agreement, or\nwho are secretarial or word processing personnel to whom Recipient has provided the Confidential Information solely for the\npurpose of Recipient's performance of the Contract and the Purpose and who are under the same obligations of confidentiality\nand nonuse as the Recipient;\n(b)\nindividuals who are employees of the United States' government in connection with their work in relation to the DOE\nBorrowers' DOE Loan Guarantees for the Project, designated in writing, including by e-mail, by an attorney in the DOE,\nprovided (1) such individual employees of the United States' government have confirmed to Recipient in writing, including by\ne-mail, that they have a need to know such Confidential Information in connection with their work in relation to the DOE\nBorrowers' DOE Loan Guarantees for the Project;\n(c)\nwith respect to any such Confidentia Information obtained in the course of review of the Documents listed in items\n(i) through (v) and (xiii) through (xx) of Article 2(b), to attorneys at Chadbourne & Parke LLP or Hunton & Williams LLP who\nhave confirmed to Recipient in writing, including by email, that they have entered into a confidentiality agreement with OPC\non terms similar to this Agreement with respect to such Documents; and\n(d)\nas required by law, including without limitation pursuant to direction or an order from a court or federal office (e.g.,\nthe Government Accountability Office) of competent jurisdiction, provided that Recipient shall follow the procedure set out in\nArticle 8 below.\n(2)\nFor any such disclosure described in this Article 3, Recipient shall minimize the amount of Confidential Information disclosed\nto only the Confidential Information that Recipient in good faith and in its discretion believes is required to be disclosed and shall\nreasonably cooperate with OPC or Contractor, or Westinghouse or Stone & Webster individually, in any efforts that OPC or Contractor,\nor Westinghouse or Stone & Webster individually, may take to limit disclosure of the Confidential Information.\n(3)\nRecipient warrants that it is not included in any United States Government published list of persons or entities whose export or\nimport privileges are in any way restricted. Recipient warrants that it shall not disclose any Confidential Information to any third parties\nif such third party is, at the time of the disclosure, included in any United States Government published list of persons or entities whose\nexport or import privileges are in any way restricted. Recipient acknowledges that Confidential Information may be subject to one or\nmore of the U.S. Government export control laws\nExhibit L-2 - Page 6\nand regulations, including without limit the U.S. Export Administration Regulations (EAR), and the regulations of the U.S. Department\nof Energy at 10 CFR Part 810. Accordingly, Recipient shall not transfer or disclose, or permit the transfer or disclosure in any medium,\nConfidential Information received under this Agreement to: (i) any person that is not a citizen, national, permanent resident alien or\n"Protected Person" of the United States; (ii) any foreign country; or (iii) any legal entity organized under the laws of a country other\nthan the United States, including without limit its employees, directors, owners, affiliated companies, or agents and representatives,\nwithout specific authorization from OPC and Westinghouse and only in accordance with applicable U.S. Government export control\nregulations.\n4.\nOPC makes no representation whatsoever (and none is to be implied or relied upon by Recipient) as to the sufficiency or accuracy of the\nConfidential Information provided hereunder, the ability of Recipient to use the Confidential Information for its intended purpose, or the result to\nbe obtained therefrom. GPC covenants that the Documents that OPC shall make available to the Recipient for its review shall be a true, correct\nand complete copy of the Documents as of the time that OPC makes the Documents available to the Recipient.\n5.\nRecipient hereby accepts responsibility for its own acts. To the extent that OPC, Westinghouse or Stone & Webster suffers any damage\nas a result of either (a) Recipient's publication or disclosure of the Confidential Information in any way whatsoever to any unauthorized person\nor (b) the use of the Confidential Information by Recipient, Recipient shall be liable for any and all actual damages suffered by OPC,\nWestinghouse and/or Stone & Webster as a result of such unauthorized publication, disclosure or use, not to exceed $3,500,000. In addition,\nRecipient acknowledges that OPC, Westinghouse, and/or Stone &Webster may suffer irreparable harm as a result of Recipient's actions under\neither (a) or (b) herein above, and Recipient hereby agrees that OPC, Westinghouse and/or Stone & Webster shall be entitled to seek an\ninjunction or other equitable relief should such action be taken by Recipient. For purposes of this Article 5 and Article 8 below, Westinghouse\nand/or Stone & Webster shall be considered third party beneficiaries hereunder.\n6.\nRecipient further agrees that Recipient will not have the right to receive electronic or hard copies of such Documents under this\nAgreement, but will be entitled to review the Documents from time to time during the term of Recipient's services under the Contract in the\noffices of GPC in Atlanta, GA or at the Vogtle 3 & 4 Project site in Waynesboro, GA upon reasonable notice to GPC and Contractor.\n7.\nOPC acknowledges that in the performance of the Contract, Recipient is required to undertake a review of the Documents and may be\nrequired to prepare written summaries of Documents or analyses of the information contained therein for review by DOE and such individuals as\nset forth in Article 3.C(1)(b) and/or Article 3.C(1)(c) above. In Recipient's review of the Documents, Recipient shall be entitled to prepare such\nwritten notes and analyses as Recipient shall deem appropriate for purposes of preparing such summaries or analyses. All such written\nsummaries, notes and analyses shall contain a prominent statement on the cover page stating the following: "This document contains\nConfidential Information of OPC, Westinghouse, Stone & Webster, and/or their partners and suppliers." No such summary, note or analysis, nor\nExhibit L-2 Page 7\nany excerpt thereof, shall be disclosed by Recipient to any third party except as provided in Article 3.C above.\n8.\nIf Recipient is notified that it is required by law, including without limitation pursuant to direction or an order from a court or federal\noffice (e.g., the Government Accountability Office) of competent jurisdiction (including by oral questions, interrogatories, subpoena, government\ninvestigative demand or similar process) to release Confidential Information, upon Recipient's receipt of any such notice, Recipient shall provide\nprompt written notice thereof to OPC, Westinghouse and Stone & Webster, by email, fax or overnight courier at their respective addresses below\nor such other addresses as they may notify to Recipient in writing from time to time, so as to allow OPC or Contractor, or Westinghouse or\nStone & Webster individually, the opportunity to seek to limit the extent of disclosure of the Confidential Information and/or to seek a protective\norder or other appropriate remedy (and/or waive compliance with the provisions of this Agreement). If such limitation or protective order or\nother appropriate remedy is not obtained before Recipient is legally required to produce such Confidential Information (or compliance with the\nprovisions of this Agreement is waived), Recipient after consultation with OPC and Westinghouse, shall disclose only the minimum amount of\nConfidential Information that Recipient in good faith and in its discretion believes is legally required.\nIf to Westinghouse:\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Frank G. Gill\nCommercial Director, Vogtle 3 & 4 Project\nFacsimile: 1-724-940-8502\nEmail: gillfg@westinghouse.com\nWith a copy to:\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Sr. Vice President & General Counsel\nFacsimile: 1-724-940-8508\nEmail: sweenemt@westinghouse.com\nIf to Stone & Webster:\nStone & Webster, Inc.\n128 South Tryon Street\nCharlotte, NC 28202\nAttention: Senior Associate General Counsel\nFacsimile: (704) 331-6001\nEmail: Mark McKain@cbi.com\nExhibit L-2 - Page 8\nWith a copy to:\nStone & Webster, Inc.\n100 Technology Center Drive\nStoughton, Massachusetts 02072\nAttention: Nuclear Division Counsel\nFacsimile: 617-589-7575\nEmail: (en.Jenkins@cbi.com\n9.\nRecipient acknowledges that the Confidential Information will only be utilized in accordance with the task or subtask assignment\npursuant to the Contract for the Purpose and acknowledges that the disclosure of this Confidential Information is otherwise restricted by OPC as\nsubmitter.\n10.\nThis Agreement shall be governed in accordance with the laws of the State of New York without giving effect to any choice of law,\nprovision, or rule (whether of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than New\nYork.\nExhibit L-2 - Page 9\nACCEPTED AND AGREED\nBy:\nName:\nTitle:\nDate:\nAddress for Notices:\nE-mail:\nPhone:\nFax:\nACKNOWLEDGED AND AGREED\nOGLETHORPE POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION)\nBy:\nName:\nTitle:\nDate:\nAddress for Notices:\nOglethorpe Power Corporation\n2100 East Exchange Place\nTucker, Georgia 30034-5336\nAttention: Chief Financial Officer\nFax: 770-270-7977\nEmail: betsy.higgins@opc.com\nWith a copy to:\nOglethorpe Power Corporation\n2100 East Exchange Place\nTucker, GA 30084-5336\nAttention: General Counsel\nFax: 770-270-7977\nE-mail: annalisa.bloodworth@opc.com\nExhibit L-2 - Page 10	Exhibit L-2\nto Amended and Restated Loan Guarantee Agreement\nFORM OF NONDISCLOSURE AGREEMENT FOR LENDER’S ENGINEER\n[FORM OF] NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated [\n] and is between [\n,a\ncorporation] [[\n], an employee\nof\n](26) (“Recipient”) and Oglethorpe Power Corporation (An Electric Membership Corporation), an electric membership corporation\norganized and existing under the laws of Georgia (“OPC”). Capitalized terms used but not otherwise defined in this Agreement have the\nmeanings provided in the EPC Agreement, as defined in Article 2(b)(i) below.\n1.\nRecipient is participating in providing technical advisory and support services to the Department of Energy, Loan Programs\nOffice (“DOE”), under Contract No. DE-DT002463 (the “Contract”), in connection with (a) DOE’s negotiation of certain loan guarantee\nagreements and related financing documents between DOE and each of Georgia Power Company (“GPC”), OPC and/or the Municipal Electric\nAuthority of Georgia or any of its wholly owned subsidiaries (each, a “DOE Borrower”) pursuant to which DOE would guarantee the repayment\nof a loan to such DOE Borrower for the construction, operation and ownership of Vogtle Units 3 and 4 (the “Project”) and (b) the related due\ndiligence (each such guarantee, a “DOE Loan Guarantee”; such loan guarantee agreements collectively, the “DOE Loan Guarantee\nAgreements”).\n2.\n(a)\nIn order to permit Recipient to review Confidential Information (as hereinafter defined) of OPC and/or its Contractor,\na consortium composed of Westinghouse Electric Company, LLC (“Westinghouse”) and Stone & Webster, Inc. (“Stone & Webster”), that may be\ncontained in the materials described in Article 2(b) hereof (the “Documents”), OPC and Recipient desire to enter into this Agreement which shall\napply to any review of Confidential Information contained in the Documents after the date hereof by Recipient. For the purposes of this\nAgreement, “Confidential Information” means the entirety of Documents identified in Section 2(b) below, but excludes any Publicly Disclosed\nInformation (as defined herein) or which Recipient has been authorized in writing by OPC to publicly disclose (excluding the disclosures\npermitted to be made by Recipient pursuant to Article 3.C below). For purposes of this Agreement, “Publicly Disclosed Information” means\nterms, conditions or other information that has become generally available to the public other than: (i) as a result of disclosure by Recipient, or\n(ii) any Confidential Information that Recipient knows has been disclosed by a third party (x) approved to receive such Confidential Information\nhereunder in violation of the terms of this Agreement or (y) in violation of any obligation of confidentiality of such third party similar to the\nterms of this Agreement.\n(b)\nThe Documents to which this Agreement shall apply are:\ni. the Engineering, Procurement and Construction Agreement between GPC, acting for itself and as agent for the other Owners\n(as such term is defined therein, the “Owners”), and a consortium consisting of Westinghouse and Stone & Webster\n(26) For Lender ’s Engineer ’s NDA, use first bracketed option; for each individual Lender’s Engineer employee’s NDA, use\nsecond bracketed\noption.\nExhibit L-2\n- Page1\n(collectively, the “Contractor”), dated as of April 8, 2008, as it may be amended from time to time, for the Project (the “EPC\nAgreement”);\nii. an executed copy of the Toshiba Guarantee, as it may be amended from time to time in the form attached as Exhibit V-1 to the\nEPC Agreement;\niii. an executed copy of the Shaw Guarantee, as it may be amended from time to time in the form attached as Exhibit V-2 to the\nEPC Agreement;\niv. an executed copy of the Software License (as it may be amended from time to time, the “Software License”) attached as\nExhibit M to the EPC Agreement;\nv. the Contract for AP1000 Fuel Fabrication, Design and Related Services, dated as of April 3, 2009, between Southern Nuclear\nOperating Company, Inc. (the “Operator”), acting as the agent of Georgia Power Company, collectively as owner, and\nWestinghouse, as amended by Amendment No. 1 dated as of June 21, 2012, (as it may be further amended from time to time, the\n“Fuel Fabrication Agreement”); any other contract entered into after the date hereof by GPC or the Operator for the supply of fuel\nassemblies and/or related required software for the Project, as it may be amended from time to time (each, a “Fuel Supply\nAgreement”); the Amended and Restated License Agreement dated February 9, 2012, between the Operator, for itself and as agent\nfor Alabama Power Company and Georgia Power Company, collectively, as licensee, and Westinghouse (as it may be amended\nfrom time to time, the “License Agreement”); the agreement (if any), to be entered into after the date of this Agreement by\nWestinghouse and the Owners or GPC (acting for itself and as agent for the other Owners) if the AP1000-compatible version of\nBest Estimate Analysis for Core Operation Nuclear - Direct Margin Monitor System and its related deliverables to be used in the\noperation of the Project (the “BEACON-DMM Software”) is not otherwise provided for the Project, pursuant to which the\nOwners will acquire the BEACON-DMM Software including a license for the use thereof (as such agreement may be amended\nfrom time to time, the “BEACON Software Agreement”);\nvi. each Monthly Status Report provided by Contractor to GPC pursuant to the EPC Agreement ;\nvii. each monthly construction status report filed by GPC with the Georgia Public Service Commission (“Georgia PSC”);\nExhibit L-2\n- Page2\nTM\nTM\nTM\nviii.\neach monthly project report delivered by the Operator to the co-owners of Vogtle Units 3 & 4;\nix. the level two schedule of significant development, construction and completion milestones for the completion of each Unit, in\neach case prepared by GPC, as updated from time to time;\nx. a copy of the written materials delivered by GPC, as agent for the co-owners of Vogtle Units 3 & 4, to the co-owners in\nconnection with any monthly project management board meeting;\nxi. invoices submitted by Contractor to Owners pursuant to the EPC Agreement;\nxii. any semi-annual construction monitoring reports filed with the Georgia PSC by GPC pursuant to the final amended\ncertification order and all orders on remand entered by the Georgia PSC in Docket No. 27800-U that contains any Confidential and\nProprietary Information;\nxiii.\nany notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to GPC, OPC or the Municipal Electric Authority of Georgia or any of its wholly owned\nsubsidiaries (each, a “DOE Borrower”) or the Operator or their participation in the Project, in each case that has, or could\nreasonably be expected to have, a Material Adverse Effect (as such term is defined in the DOE Loan Guarantee Agreements) or a\nmaterial adverse effect on the ability of the Project to be completed or operated, only to the extent such items contain Confidential\nand Proprietary Information;\nxiv. any notice and a copy of any of the following communications received by a DOE Borrower or the Operator from the NRC:\n(1) notice of a potential violation of severity level III or higher (or its equivalent in subsequent versions of the NRC Enforcement\nPolicy); (2) Red, Yellow or White NRC Inspection Finding (or its equivalent in subsequent versions of the Reactor Oversight\nPolicy); (3) notice to stop work or shut down or show cause; (4) Demand for Information under 10 CFR § 50.54(f) or 10 CFR §\n2.204; or (5) any other immediately effective, unilateral, docket-specific, non-routine communication requiring action by any\nlicensee with respect to the Project, only to the extent such items contain Confidential and Proprietary Information;\nExhibit L-2\n- Page3\nxv. any notice of any complaint, order, directive, claim, citation, designation or notice by any Governmental Authority (as such\nterm is defined in the DOE Loan Guarantee Agreements) with respect to the Project received by a DOE Borrower or the Operator\nrelating to any actual or potential material non-compliance with its then-existing obligations under Environmental Laws (as such\nterm is defined in the DOE Loan Guarantee Agreements) and any written description of any steps that DOE Borrower or the\nOperator is taking and proposes to take with respect to the matters described in such notice, only to the extent such items contain\nConfidential and Proprietary Information;\nxvi. notice and a copy of any stop work order issued by a DOE Borrower or the Operator with respect to any work on the Project,\nonly to the extent such items contain Confidential and Proprietary Information;\nxvii.\nany notice of any termination, amendment or material waiver or breach of, or material notices and material\ncorrespondence with respect to, the EPC Agreement, the Toshiba Guarantee, the Shaw Guarantee, the Software License, the Fuel\nFabrication Agreement, any other Fuel Supply Agreement, the BEACON Software Agreement (if any) or the License Agreement\nand any copy of any of the foregoing or any agreement, instrument or other document giving effect to any of the foregoing, only to\nthe extent such items contain Confidential and Proprietary Information;\nxviii.\nany notice of any event that constitutes an Event of Default, Potential Default, Mandatory Prepayment Event or Potential\nMandatory Prepayment Event (as such terms are defined in the DOE Loan Guarantee Agreements) and any written description of\nany steps any DOE Borrower has taken or proposes to take to remedy matters described in any such notice, only to the extent such\nitems contain Confidential and Proprietary Information;\nxix. any notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments with\nrespect to the foregoing, with respect to any DOE Borrower or the Operator or their participation in the Project, in each case that\nhas resulted in, or any DOE Borrower believes will result in, Public Inquiries (as such term is defined in the DOE Loan Guarantee\nAgreements), only to the extent such items contain Confidential and Proprietary Information; and\nxx. any lien waivers and releases, with respect to all work reflected in any invoice of the Contractor and, in the case of the invoice\nfor the final payment from the DOE Borrowers under the EPC Agreement, the Contractor’s affidavit, only to the extent such items\ncontain Confidential and Proprietary Information.\nExhibit L-2\n- Page4\n(c)\nNotwithstanding the foregoing, Confidential Information made available to Recipient pursuant to this Agreement shall\nnot include any such Confidential Information consisting of AP1000 engineering or design or related information of Contractor, or\nWestinghouse, or Stone & Webster individually, not included in the public version of the AP1000 Design Control Document, including as a\nrepresentative list of such information: calculations for safety-related systems and components; the Plant Design Model; instrumentation and\ncontrol functional, system, software and interface requirements and functional logic diagrams; designs, design specifications and qualification\nreports for safety-related and non-safety related equipment; systems design and design specification documents for safety-related and non-safety\nrelated systems; design change packages, including E&DCRs; instrumentation and control architecture diagrams, software verification and\nvalidation documentation, testing procedures and test results; component data packages; fabrication and construction drawings; and final plant\nas-built drawings.\n(d)\nTo the extent, as a result of any request from Recipient (or a request from DOE on behalf of Recipient) to be allowed\nto see any Confidential Information that has been redacted under Section 2(c), OPC obtains from Contractor, or Westinghouse or Stone &\nWebster individually, permission to disclose such redacted Confidential Information, such Confidential Information will be disclosed by OPC to\nRecipient in the same manner and under the same conditions as such redacted Confidential Information has been made available by Contractor,\nor Westinghouse or Stone & Webster individually, to OPC.\n3.\nIn connection with Recipient’s participation in providing the technical advisory and support services to the DOE under the Contract in\nconnection with the Project (the “Purpose”):\nA.\nRecipient acknowledges OPC may not disclose Confidential Information included in the Documents until and unless the\npersons to whom such Confidential Information is disclosed agree to keep such information, terms and conditions confidential as\nprovided herein and only to use such Confidential Information for the Purpose. Recipient by this Agreement agrees to keep the\nConfidential Information contained therein confidential, subject to the terms of this Agreement.\nB.\nRecipient hereby acknowledges, agrees and understands that the Confidential Information is confidential and proprietary\nbusiness, technical and financial information of OPC, Westinghouse and/or Stone & Webster, and the disclosure of Confidential\nInformation could cause substantial harm to the competitive and commercial interests of OPC and Contractor, or Westinghouse, or\nStone & Webster individually.\nC.\nRecipient hereby agrees and confirms that, pursuant to Article 3.A. above, Recipient will protect the confidentiality of such\nConfidential Information, including any information or analysis derived from it, and not disclose it to any third party, except as provided\nin this Article 3.C .\nExhibit L-2\n- Page5\n(1)\nSpecifically, Recipient will not disclose nor release any Confidential Information obtained in the course of review of the\nDocuments to anyone, either during or after the period of performance of the Contract, other than:\n(a)\nindividuals within Recipient’s organization who are directly concerned with the performance of the Contract and the\nPurpose, and who have executed a nondisclosure and non-use agreement in substantially the same form of this Agreement, or\nwho are secretarial or word processing personnel to whom Recipient has provided the Confidential Information solely for the\npurpose of Recipient’s performance of the Contract and the Purpose and who are under the same obligations of confidentiality\nand nonuse as the Recipient;\n(b)\nindividuals who are employees of the United States’ government in connection with their work in relation to the DOE\nBorrowers’ DOE Loan Guarantees for the Project, designated in writing, including by e-mail, by an attorney in the DOE,\nprovided (1) such individual employees of the United States’ government have confirmed to Recipient in writing, including by\ne-mail, that they have a need to know such Confidential Information in connection with their work in relation to the DOE\nBorrowers’ DOE Loan Guarantees for the Project;\n(c)\nwith respect to any such Confidential Information obtained in the course of review of the Documents listed in items\n(i) through (v) and (xiii) through (xx) of Article 2(b), to attorneys at Chadbourne & Parke LLP or Hunton & Williams LLP who\nhave confirmed to Recipient in writing, including by email, that they have entered into a confidentiality agreement with OPC\non terms similar to this Agreement with respect to such Documents; and\n(d)\nas required by law, including without limitation pursuant to direction or an order from a court or federal office (e.g .,\nthe Government Accountability Office) of competent jurisdiction, provided that Recipient shall follow the procedure set out in\nArticle 8 below.\n(2)\nFor any such disclosure described in this Article 3, Recipient shall minimize the amount of Confidential Information disclosed\nto only the Confidential Information that Recipient in good faith and in its discretion believes is required to be disclosed and shall\nreasonably cooperate with OPC or Contractor, or Westinghouse or Stone & Webster individually, in any efforts that OPC or Contractor,\nor Westinghouse or Stone & Webster individually, may take to limit disclosure of the Confidential Information.\n(3)\nRecipient warrants that it is not included in any United States Government published list of persons or entities whose export or\nimport privileges are in any way restricted. Recipient warrants that it shall not disclose any Confidential Information to any third parties\nif such third party is, at the time of the disclosure, included in any United States Government published list of persons or entities whose\nexport or import privileges are in any way restricted. Recipient acknowledges that Confidential Information may be subject to one or\nmore of the U.S. Government export control laws\nExhibit L-2\n- Page6\nand regulations, including without limit the U.S. Export Administration Regulations (EAR), and the regulations of the U.S. Department\nof Energy at 10 CFR Part 810. Accordingly, Recipient shall not transfer or disclose, or permit the transfer or disclosure in any medium,\nConfidential Information received under this Agreement to: (i) any person that is not a citizen, national, permanent resident alien or\n“Protected Person” of the United States; (ii) any foreign country; or (iii) any legal entity organized under the laws of a country other\nthan the United States, including without limit its employees, directors, owners, affiliated companies, or agents and representatives,\nwithout specific authorization from OPC and Westinghouse and only in accordance with applicable U.S . Government export control\nregulations.\n4.\nOPC makes no representation whatsoever (and none is to be implied or relied upon by Recipient) as to the sufficiency or accuracy of the\nConfidential Information provided hereunder, the ability of Recipient to use the Confidential Information for its intended purpose, or the result to\nbe obtained therefrom. GPC covenants that the Documents that OPC shall make available to the Recipient for its review shall be a true, correct\nand complete copy of the Documents as of the time that OPC makes the Documents available to the Recipient.\n5.\nRecipient hereby accepts responsibility for its own acts. To the extent that OPC, Westinghouse or Stone & Webster suffers any damage\nas a result of either (a) Recipient’s publication or disclosure of the Confidential Information in any way whatsoever to any unauthorized person\nor (b) the use of the Confidential Information by Recipient, Recipient shall be liable for any and all actual damages suffered by OPC,\nWestinghouse and/or Stone & Webster as a result of such unauthorized publication, disclosure or use, not to exceed $3,500,000. In addition,\nRecipient acknowledges that OPC, Westinghouse, and/or Stone &Webster may suffer irreparable harm as a result of Recipient’s actions under\neither (a) or (b) herein above, and Recipient hereby agrees that OPC, Westinghouse and/or Stone & Webster shall be entitled to seek an\ninjunction or other equitable relief should such action be taken by Recipient. For purposes of this Article 5 and Article 8 below, Westinghouse\nand/or Stone & Webster shall be considered third party beneficiaries hereunder.\n6.\nRecipient further agrees that Recipient will not have the right to receive electronic or hard copies of such Documents under this\nAgreement, but will be entitled to review the Documents from time to time during the term of Recipient’s services under the Contract in the\noffices of GPC in Atlanta, GA or at the Vogtle 3 & 4 Project site in Waynesboro, GA upon reasonable notice to GPC and Contractor.\n7.\nOPC acknowledges that in the performance of the Contract, Recipient is required to undertake a review of the Documents and may be\nrequired to prepare written summaries of Documents or analyses of the information contained therein for review by DOE and such individuals as\nset forth in Article 3.C(1)(b) and/or Article 3.C(1)(c) above. In Recipient’s review of the Documents, Recipient shall be entitled to prepare such\nwritten notes and analyses as Recipient shall deem appropriate for purposes of preparing such summaries or analyses. All such written\nsummaries, notes and analyses shall contain a prominent statement on the cover page stating the following: “This document contains\nConfidential Information of OPC, Westinghouse, Stone & Webster, and/or their partners and suppliers.” No such summary, note or analysis, nor\nExhibit L-2\n- Page7\nany excerpt thereof, shall be disclosed by Recipient to any third party except as provided in Article 3.C above.\n8.\nIf Recipient is notified that it is required by law, including without limitation pursuant to direction or an order from a court or federal\noffice (e.g ., the Government Accountability Office) of competent jurisdiction (including by oral questions, interrogatories, subpoena, government\ninvestigative demand or similar process) to release Confidential Information, upon Recipient’s receipt of any such notice, Recipient shall provide\nprompt written notice thereof to OPC, Westinghouse and Stone & Webster, by email, fax or overnight courier at their respective addresses below\nor such other addresses as they may notify to Recipient in writing from time to time, so as to allow OPC or Contractor, or Westinghouse or\nStone & Webster individually, the opportunity to seek to limit the extent of disclosure of the Confidential Information and/or to seek a protective\norder or other appropriate remedy (and/or waive compliance with the provisions of this Agreement). If such limitation or protective order or\nother appropriate remedy is not obtained before Recipient is legally required to produce such Confidential Information (or compliance with the\nprovisions of this Agreement is waived), Recipient after consultation with OPC and Westinghouse, shall disclose only the minimum amount of\nConfidential Information that Recipient in good faith and in its discretion believes is legally required.\nIf to Westinghouse:\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Frank G. Gill\nCommercial Director, Vogtle 3 & 4 Project\nFacsimile: 1-724-940-8502\nEmail: gillfg@westinghouse.com\nWith a copy to:\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Sr. Vice President & General Counsel\nFacsimile: 1-724-940-8508\nEmail: sweenemt@westinghouse.com\nIf to Stone & Webster:\nStone & Webster, Inc.\n128 South Tryon Street\nCharlotte, NC 28202\nAttention: Senior Associate General Counsel\nFacsimile: (704) 331-6001\nEmail: Mark McKain@cbi.com\nExhibit L-2\n- Page8\nWith a copy to:\nStone & Webster, Inc.\n100 Technology Center Drive\nStoughton, Massachusetts 02072\nAttention: Nuclear Division Counsel\nFacsimile: 617-589-7575\nEmail: Ken.Jenkins@cbi.com\n9.\nRecipient acknowledges that the Confidential Information will only be utilized in accordance with the task or subtask assignment\npursuant to the Contract for the Purpose and acknowledges that the disclosure of this Confidential Information is otherwise restricted by OPC as\nsubmitter.\n10.\nThis Agreement shall be governed in accordance with the laws of the State of New York without giving effect to any choice of law,\nprovision, or rule (whether of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than New\nYork.\nExhibit L-2\n- Page9\nACCEPTED AND AGREED\nBy:\nName:\nTitle:\nDate:\nAddress for Notices:\nE-mail:\nPhone:\nFax:\nACKNOWLEDGED AND AGREED\nOGLETHORPE POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION)\nBy:\nName:\nTitle:\nDate:\nAddress for Notices:\nOglethorpe Power Corporation\n2100 East Exchange Place\nTucker, Georgia 30034-5336\nAttention: Chief Financial Officer\nFax: 770-270-7977\nEmail: betsy.higgins@opc.com\nWith a copy to:\nOglethorpe Power Corporation\n2100 East Exchange Place\nTucker, GA 30084-5336\nAttention: General Counsel\nFax: 770-270-7977\nE-mail: annalisa.bloodworth@opc.com\nExhibit L-2 - Page 10
+0f32a3a54d9c1e42d26f66746821c3bf.pdf	effective_date jurisdiction party term	EX-99.D.3 12 d438799dex99d3.htm AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(3)\nEXECUTION COPY\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nThis Amended and Restated Mutual Nondisclosure Agreement (this “Agreement”), by and between JDA Software Group, Inc., a Delaware\ncorporation (together with its subsidiaries, “JDA”), and RedPrairie Holding, Inc., a Delaware corporation (together with its subsidiaries and New\nMountain Capital, LLC, “RHI”) (each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto.\n1. General. In connection with the consideration of a possible transaction involving RHI and JDA (a “Possible Transaction”), the Party\nreferred to as the “Provider” is prepared to make available to the Party referred to as the “Recipient” certain “Evaluation Material” (as defined in\nSection 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term “Evaluation Material” means information concerning the Provider which is furnished on or after November 8, 2011 to the\nRecipient or its Representatives (as defined below) on the Recipient's behalf in connection with the Recipient’s evaluation of a Possible\nTransaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies,\ninterpretations or other documents prepared by the Recipient or its Representatives to the extent containing or which are based upon, in whole\nor in part, the information furnished by the Provider hereunder, The term Evaluation Material does not include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was\nwithin the Recipient’s or its Representatives possession prior to its being furnished to the Recipient or its Representatives by or on behalf of\nthe Provider, provided that the source of such information was not known by the Recipient or its Representatives to be bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such\ninformation, (iii) is or becomes available to the Recipient or its Representatives on a non-confidential basis from a source other than the\nProvider or its Representatives, provided that the source of such information was not known by the Recipient or its Representatives to be\nbound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to\nsuch information, or (iv) was or is independently developed by the Recipient or the Recipient’s Representatives without the use of or reference\nto any Evaluation Material provided by or on behalf of Provider or its Representatives.\n(b) The term “Representatives” in the case of JDA shall mean the directors, officers, employees, counsel, investment bankers, financial\nadvisors, agents, consultants, advisors, accountants or auditors of JDA. The term “Representatives” in the case of RHI shall mean the\ndirectors, officers, employees, counsel, and with prior written consent of JDA (not to be unreasonably withheld), investment bankers, financial\nadvisors, potential sources of capital or financing (debt or equity), agents, consultants, advisors, accountants or auditors of RHI.\nNotwithstanding the foregoing, nothing in this Agreement shall restrict the ability of RHI to\ndiscuss with, or engage, Greenhill & Co, or Bain & Company to act as its consultant, investment banker or financial advisor in connection with\na Possible Transaction or to discuss with, or engage, Deloitte as its advisor or accountant in connection with a Possible Transaction.\n(c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. The Recipient and its Representatives will use the Evaluation Material solely for the purpose of evaluating a\nPossible Transaction and, subject to Section 5, will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that\nany of such information may be disclosed to the Recipient’s Representatives for the purpose of helping the Recipient evaluate a Possible\nTransaction. The Recipient agrees to be responsible for any breach of this Agreement by any of the Recipient’s Representatives, other than those of\nRecipient’s unaffiliated Representatives who have entered into a separate confidentiality agreement with the Provider. This Agreement does not grant\nthe Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. For the avoidance of\ndoubt, RHI agrees that it shall not disclose any of the Evaluation Material provided by or on behalf of JDA to any of its affiliates that are not\nincluded in the definition of RHI.\n4. Non-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other Party, such Party\nand its Representatives will not disclose to any other Person (i) that Evaluation Material has been exchanged between the Parties, (ii) that discussions\nor negotiations are taking place between the Parties concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect\nthereto (including the status thereof); provided, however, that JDA may make such disclosure if it does not identify RHI by name or by identifiable\ndescription. RHI agrees that neither RHI nor any Representative (to the extent acting on behalf or at the direction of RHI) of RHI will, without the\nprior consent of JDA (not to be unreasonably withheld), directly or indirectly, enter into any agreement, arrangement or understanding with any other\nperson regarding a Possible Transaction (including, without limitation, financing thereof). RHI represents and warrants that, except as disclosed to\nJDA or its outside counsel prior to the date hereof, neither RHI nor any Representative of RHI have, prior to the date hereof, taken any of the actions\nreferred to in the immediately preceding sentence. Without limiting the foregoing, RHI agrees that neither RHI nor any Representative (to the extent\nacting on behalf and at the direction of RHI) of RHI will, without the prior written consent of JDA, enter into any exclusive arrangement with\nrespect to the provision of debt financing in connection with a Possible Transaction. For purposes of this Agreement, any agreement, arrangement or\nother understanding, whether written or oral, with any potential debt financing source which does, or could be reasonably expected to, legally or\ncontractually limit, restrict or otherwise impair in any manner, directly or indirectly, such financing source from acting as a potential debt financing\nsource to any other party with respect to a Potential Transaction shall be deemed an exclusive arrangement.\n5. Legally Required Disclosure. If the Recipient or its Representatives are requested or required (by oral questions, interrogatories, other\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the\nEvaluation Material or any of the facts disclosure of which is prohibited\n2\nunder Section 4 above, the Recipient or such Representative shall provide the Provider with prompt written notice of any such request or\nrequirement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, the Recipient or any of its\nRepresentatives is nonetheless legally compelled or required by law to disclose Evaluation Material or any of the facts disclosure of which is\nprohibited under Section 4, the Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion\nof such Evaluation Material or any such facts which the Recipient or its Representatives is legally compelled or required by law to disclose; provided\nthat the Recipient and/or its Representatives exercise its commercially reasonable efforts, at the Provider’s sole expense, to preserve the\nconfidentiality of such Evaluation Material or any of such facts, including, without limitation, by reasonably cooperating with the Provider to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the\nPerson receiving the material. Notwithstanding the foregoing, Recipient and its Representatives may disclose such information, and need not provide\nsuch notice, in connection with a routine blanket audit or proceeding (including in response to oral questions or requests for information or\ndocuments) involving the Recipient or its Representatives, as applicable, by a regulatory authority with jurisdiction over the Recipient or such\nRepresentative where neither the Provider nor the Possible Transaction is the target of such proceeding or audit. In either case, the Recipient and its\nRepresentatives shall take reasonable measures to obtain confidential treatment with respect to any such information disclosed.\n6. No Contacts. Neither Party nor any of its Representatives will, in connection with its consideration of a Possible Transaction, initiate or\nmaintain any contact with any officer, director, employee, agent, supplier, customer, lender or competitor of the other Party, except with the prior\nwritten consent of the other Party. If discussions between the Parties regarding a Possible Transaction are terminated, the Parties and their\nRepresentatives shall promptly cease all such contacts that may have been previously authorized. Unless otherwise consented to by RHI or JDA, as\napplicable, in writing, all communications regarding a Possible Transaction, including (i) requests for information, (ii) requests for facility tours or\nmanagement meetings, (iii) discussions or questions regarding procedures, and (iv) requests for any consent required under this Agreement, will be\nsubmitted or directed (a) in the case of RHI, to Jack Qian at New Mountain Capital LLC (212-220 -5040; jqian@newmountaincapital.com), or Paul\nIlse at RHI (678-639-5398; Paul.IIse@RedPrairie.com), and (b) in the case of JDA, to David Lubeck (415- 315-8612;\ndavid.w.lubeck@jpmorgan.com) or Drago Rajkovic (415-315-8100; drago.rajkovic@jpmorgan.com) of J.P. Morgan Securities LLC or their\ndesignees.\n7. “Click Through” Agreements. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed\nby an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which the Recipient or its\nRepresentatives are granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that the Recipient’s and its Representatives’ confidentiality obligations with respect to the\nEvaluation Material are exclusively governed by this Agreement and may not be enlarged except by an agreement executed by the Parties hereto in\ntraditional written format.\n3\n8. Termination of Discussions. If either Party decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the\nother Party of that decision. In that case, or at any time upon the written request of the Provider for any reason, the Recipient will, and will direct its\nRepresentatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to\nthe Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be\nretained (except that one copy may be maintained by outside legal counsel to the Recipient for archival purposes), and the term of this Agreement\nshall be extended by a like number of days for each day that the Recipient or any of its Representatives is in non-compliance of this Section 8. The\nRecipient shall provide to the Provider a certificate of compliance with the previous sentence. Notwithstanding the return or destruction of the\nEvaluation Material, the Recipient and its Representatives will continue to be bound by the Recipient’s obligations hereunder with respect to such\nEvaluation Material.\n9. No Solicitation. The Recipient will not, within one year from the date of this Agreement, solicit the employment or consulting services of\nany of the officers of the Provider with whom it has had contact in connection with its evaluation of a Possible Transaction, so long as they are\nemployed by the Provider. The Recipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any particular\nindividual or the employees of the Provider generally, or (ii) engaging any recruiting firm or similar organization to identify or solicit individuals for\nemployment on behalf of the Recipient (and soliciting any person identified by any such recruiting firm or organization) so long as the Recipient\ndoes not identify the individuals to be solicited by such recruiting firm or organization.\n10. Standstill. RHI agrees that, for a period ending on the earlier of (x) one year after the date of this Agreement, (y) the date a public\nannouncement is made of the entry by JDA into a binding definitive agreement with any third party to effect a purchase, tender or exchange offer,\nmerger or other business combination that, if consummated, would result in a third party owning at least a majority of the outstanding voting\nsecurities of JDA or all or substantially all of the assets of JDA and its subsidiaries (taken as a whole) or (z) the date of commencement by a third\nparty of a tender or exchange offer for at least a majority of the outstanding voting securities of JDA (the “Standstill Period”), unless specifically\ninvited in writing by JDA or its Representatives, neither RHI nor any of its affiliates (as such term is defined under the Securities Exchange Act of\n1934, as amended (the “1934 Act”)) which has been furnished with Evaluation Material pursuant hereto (including New Mountain Capital LLC) or\nRepresentatives (acting on its behalf) will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person\nto effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of the equity securities (or beneficial ownership thereof) or any material assets of JDA or any of its\nsubsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving JDA or any of its subsidiaries,\n4\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to JDA or any of\nits subsidiaries, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of JDA;\n(b) form, join or in any way participate in a “group” (as defined under the 1934 Act with respect to the voting securities of JDA;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving JDA or its voting securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to change, control or influence the management, Board of Directors or policies\nof JDA;\n(e) take any action which might force JDA to make a public announcement regarding any of the types of matters set forth in (a) above;\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing; or\n(g) make any public announcement inconsistent with the agreements contained in this Section,\nRHI also agrees during the Standstill Period not to request (either directly or through its affiliates or Representatives) that JDA (or its directors,\nofficers, employees or agents), directly or indirectly, amend or waive any provision of this Section 10 (including this sentence) if such request would\nrequire JDA to publicly disclose such request. In no event shall this Section 10 be construed as prohibiting the taking of any of the aforementioned\nactions with respect to any Person other than JDA or any of its subsidiaries notwithstanding the fact that, at the time such action is taken, JDA (or a\nsubsidiary thereof) may be a subsidiary of such Person.\n11. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Party\nunderstands and agrees that the Parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual\nunderstanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of\nsuch material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation\nMaterial provided by a Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall\nremain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.\n5\n12. Compliance with Securities Laws. The Recipient and its Representatives agree not to use any Evaluation Material of the Provider in\nviolation of applicable securities laws.\n13. Not a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Party hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until\nboth Parties shall have entered into a final definitive agreement for a Possible Transaction. Each Party also agrees that, unless and until a final\ndefinitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will be under any legal obligation of any kind\nwhatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein.\n14. No Representations or Warranties: No Obligation to Disclose. The Recipient understands and acknowledges that neither the Provider nor\nits Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material\nfurnished by or on behalf of the Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting\nfrom the use of the Evaluation Material furnished to the Recipient or its Representatives or any errors therein or omissions therefrom. As to the\ninformation delivered to the Recipient, the Provider will only be liable for those representations or warranties which are made in a final definitive\nagreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein.\nNothing in this Agreement shall be construed as obligating a Party to provide, or to continue to provide, any information to any Person.\n15. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of\nthe other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n16. Remedies. Each Party understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by\neither Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to equitable relief, including\ninjunction and specific performance, as a remedy for any such breach or threat thereof without the requirement of posting a bond or other security.\nSuch remedies shall not be deemed to be the exclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other\nremedies available at law or equity to the Party against which such breach is committed. If a court of competent jurisdiction, pursuant to a final, non-\nappealable order, determines that the Recipient or any of its Representatives has breached this Agreement, the Recipient shall pay the reasonable\ncosts (including legal fees and expenses) incurred by the Provider in enforcing this Agreement.\n17. Governing Law. This Agreement is for the benefit of each Party and its successors (including any purchaser of such Party) and shall be\ngoverned by and construed in\n6\naccordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Without limiting\nthe generality of the foregoing, this Agreement may be enforced by any Person with which the Recipient enters into a transaction. Each Party\nirrevocably and unconditionally submits to the jurisdiction of the federal and state courts located in the State of Delaware, New Castle County, for\nthe purpose of any action, suit or other proceeding arising out of or relating to this Agreement, and agree not to commence any action, suit or\nproceeding relating thereto except in any such court, and further agree that service of process, summons, notice or document by U.S . registered mail\nto its address set forth in this Agreement will be effective service of process for any action, suit or proceeding arising out of or relating to this\nAgreement. Each Party hereby also irrevocably and unconditionally (i) waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any such federal and state courts, and (ii) waives and agrees not to plead or claim in any such court that\nsuch action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n18. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n19. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n20. Term. This Agreement shall terminate two years after the date of this Agreement.\n21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter (including that certain Mutual\nNondisclosure Agreement, dated November 8, 2011, between JDA Software Group, Inc. and RedPrairie Holding, Inc.).\n22. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\n7\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of\nthe date written below.\nREDPRAIRIE HOLDING, INC.\nJDA SOFTWARE GROUP, INC.\nBy:\nLOGO\nBy:\nLOGO\nName: Laura L Fese\nName: David Kennedy\nTitle: Chief Legal Officer\nTitle: Executive Vice President and Chief Legal Officer\nDate: 9/4/12\nDate:\nAddress: 20700 Swenson Drive, Waukesha,WI 53186\nAddress: 14400 N. 87 Street, Scottsdale, AZ 85260-3649\nNEW MOUNTAIN CAPITAL LLC\nBy:\nLOGO\nName: Jack Qian\nTitle: Vice President\nDate:\nAddress: 787 Seventh Avenue, 49 Floor, New York, NY 10019\n8\nth\nth	EX-99.D.3 12 d438799dex99d3.htm AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(3)\nEXECUTION COPY\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nThis Amended and Restated Mutual Nondisclosure Agreement (this “Agreement”), by and between JDA Software Group, Inc., a Delaware\ncorporation (together with its subsidiaries, “JDA”), and RedPrairie Holding, Inc., a Delaware corporation (together with its subsidiaries and New\nMountain Capital, LLC, “RHI”) (each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto.\n1. General. In connection with the consideration of a possible transaction involving RHI and JDA (a “Possible Transaction”), the Party\nreferred to as the “Provider” is prepared to make available to the Party referred to as the “Recipient” certain “Evaluation Material” (as defined in\nSection 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term “Evaluation Material” means information concerning the Provider which is furnished on or after November 8, 2011 to the\nRecipient or its Representatives (as defined below) on the Recipient's behalf in connection with the Recipient’s evaluation of a Possible\nTransaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies,\ninterpretations or other documents prepared by the Recipient or its Representatives to the extent containing or which are based upon, in whole\nor in part, the information furnished by the Provider hereunder, The term Evaluation Material does not include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was\nwithin the Recipient’s or its Representatives possession prior to its being furnished to the Recipient or its Representatives by or on behalf of\nthe Provider, provided that the source of such information was not known by the Recipient or its Representatives to be bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such\ninformation, (iii) is or becomes available to the Recipient or its Representatives on a non-confidential basis from a source other than the\nProvider or its Representatives, provided that the source of such information was not known by the Recipient or its Representatives to be\nbound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to\nsuch information, or (iv) was or is independently developed by the Recipient or the Recipient’s Representatives without the use of or reference\nto any Evaluation Material provided by or on behalf of Provider or its Representatives.\n \n \n(b) The term “Representatives” in the case of JDA shall mean the directors, officers, employees, counsel, investment bankers, financial\nadvisors, agents, consultants, advisors, accountants or auditors of JDA. The term “Representatives” in the case of RHI shall mean the\ndirectors, officers, employees, counsel, and with prior written consent of JDA (not to be unreasonably withheld), investment bankers, financial\nadvisors, potential sources of capital or financing (debt or equity), agents, consultants, advisors, accountants or auditors of RHI.\nNotwithstanding the foregoing, nothing in this Agreement shall restrict the ability of RHI to\ndiscuss with, or engage, Greenhill & Co, or Bain & Company to act as its consultant, investment banker or financial advisor in connection with\na Possible Transaction or to discuss with, or engage, Deloitte as its advisor or accountant in connection with a Possible Transaction.\n(c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. The Recipient and its Representatives will use the Evaluation Material solely for the purpose of evaluating a\nPossible Transaction and, subject to Section 5, will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that\nany of such information may be disclosed to the Recipient’s Representatives for the purpose of helping the Recipient evaluate a Possible\nTransaction. The Recipient agrees to be responsible for any breach of this Agreement by any of the Recipient’s Representatives, other than those of\nRecipient’s unaffiliated Representatives who have entered into a separate confidentiality agreement with the Provider. This Agreement does not grant\nthe Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. For the avoidance of\ndoubt, RHI agrees that it shall not disclose any of the Evaluation Material provided by or on behalf of JDA to any of its affiliates that are not\nincluded in the definition of RHI.\n4. Non-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other Party, such Party\nand its Representatives will not disclose to any other Person (i) that Evaluation Material has been exchanged between the Parties, (ii) that discussions\nor negotiations are taking place between the Parties concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect\nthereto (including the status thereof); provided, however, that JDA may make such disclosure if it does not identify RHI by name or by identifiable\ndescription. RHI agrees that neither RHI nor any Representative (to the extent acting on behalf or at the direction of RHI) of RHI will, without the\nprior consent of JDA (not to be unreasonably withheld), directly or indirectly, enter into any agreement, arrangement or understanding with any other\nperson regarding a Possible Transaction (including, without limitation, financing thereof). RHI represents and warrants that, except as disclosed to\nJDA or its outside counsel prior to the date hereof, neither RHI nor any Representative of RHI have, prior to the date hereof, taken any of the actions\nreferred to in the immediately preceding sentence. Without limiting the foregoing, RHI agrees that neither RHI nor any Representative (to the extent\nacting on behalf and at the direction of RHI) of RHI will, without the prior written consent of JDA, enter into any exclusive arrangement with\nrespect to the provision of debt financing in connection with a Possible Transaction. For purposes of this Agreement, any agreement, arrangement or\nother understanding, whether written or oral, with any potential debt financing source which does, or could be reasonably expected to, legally or\ncontractually limit, restrict or otherwise impair in any manner, directly or indirectly, such financing source from acting as a potential debt financing\nsource to any other party with respect to a Potential Transaction shall be deemed an exclusive arrangement.\n5. Legally Required Disclosure. If the Recipient or its Representatives are requested or required (by oral questions, interrogatories, other\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the\nEvaluation Material or any of the facts disclosure of which is prohibited\nunder Section 4 above, the Recipient or such Representative shall provide the Provider with prompt written notice of any such request or\nrequirement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, the Recipient or any of its\nRepresentatives is nonetheless legally compelled or required by law to disclose Evaluation Material or any of the facts disclosure of which is\nprohibited under Section 4, the Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion\nof such Evaluation Material or any such facts which the Recipient or its Representatives is legally compelled or required by law to disclose; provided\nthat the Recipient and/or its Representatives exercise its commercially reasonable efforts, at the Provider’s sole expense, to preserve the\nconfidentiality of such Evaluation Material or any of such facts, including, without limitation, by reasonably cooperating with the Provider to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the\nPerson receiving the material. Notwithstanding the foregoing, Recipient and its Representatives may disclose such information, and need not provide\nsuch notice, in connection with a routine blanket audit or proceeding (including in response to oral questions or requests for information or\ndocuments) involving the Recipient or its Representatives, as applicable, by a regulatory authority with jurisdiction over the Recipient or such\nRepresentative where neither the Provider nor the Possible Transaction is the target of such proceeding or audit. In either case, the Recipient and its\nRepresentatives shall take reasonable measures to obtain confidential treatment with respect to any such information disclosed.\n6. No Contacts. Neither Party nor any of its Representatives will, in connection with its consideration of a Possible Transaction, initiate or\nmaintain any contact with any officer, director, employee, agent, supplier, customer, lender or competitor of the other Party, except with the prior\nwritten consent of the other Party. If discussions between the Parties regarding a Possible Transaction are terminated, the Parties and their\nRepresentatives shall promptly cease all such contacts that may have been previously authorized. Unless otherwise consented to by RHI or JDA, as\napplicable, in writing, all communications regarding a Possible Transaction, including (i) requests for information, (ii) requests for facility tours or\nmanagement meetings, (iii) discussions or questions regarding procedures, and (iv) requests for any consent required under this Agreement, will be\nsubmitted or directed (a) in the case of RHI, to Jack Qian at New Mountain Capital LLC (212-220-5040; jgian@newmountaincapital.com), or Paul\nIlse at RHI (678-639-5398; Paul.llse@RedPrairie.com), and (b) in the case of JDA, to David Lubeck (415- 315-8612;\ndavid.w.lubeck@jpmorgan.com) or Drago Rajkovic (415-315-8100; drago.rajkovic@jpmorgan.com) of J.P. Morgan Securities LLC or their\ndesignees.\n7. “Click Through” Agreements. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed\nby an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which the Recipient or its\nRepresentatives are granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that the Recipient’s and its Representatives’ confidentiality obligations with respect to the\nEvaluation Material are exclusively governed by this Agreement and may not be enlarged except by an agreement executed by the Parties hereto in\ntraditional written format.\n8. Termination of Discussions. If either Party decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the\nother Party of that decision. In that case, or at any time upon the written request of the Provider for any reason, the Recipient will, and will direct its\nRepresentatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to\nthe Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be\nretained (except that one copy may be maintained by outside legal counsel to the Recipient for archival purposes), and the term of this Agreement\nshall be extended by a like number of days for each day that the Recipient or any of its Representatives is in non-compliance of this Section 8. The\nRecipient shall provide to the Provider a certificate of compliance with the previous sentence. Notwithstanding the return or destruction of the\nEvaluation Material, the Recipient and its Representatives will continue to be bound by the Recipient’s obligations hereunder with respect to such\nEvaluation Material.\n9. No Solicitation. The Recipient will not, within one year from the date of this Agreement, solicit the employment or consulting services of\nany of the officers of the Provider with whom it has had contact in connection with its evaluation of a Possible Transaction, so long as they are\nemployed by the Provider. The Recipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any particular\nindividual or the employees of the Provider generally, or (ii) engaging any recruiting firm or similar organization to identify or solicit individuals for\nemployment on behalf of the Recipient (and soliciting any person identified by any such recruiting firm or organization) so long as the Recipient\ndoes not identify the individuals to be solicited by such recruiting firm or organization.\n10. Standstill. RHI agrees that, for a period ending on the earlier of (x) one year after the date of this Agreement, (y) the date a public\nannouncement is made of the entry by JDA into a binding definitive agreement with any third party to effect a purchase, tender or exchange offer,\nmerger or other business combination that, if consummated, would result in a third party owning at least a majority of the outstanding voting\nsecurities of JDA or all or substantially all of the assets of JDA and its subsidiaries (taken as a whole) or (z) the date of commencement by a third\nparty of a tender or exchange offer for at least a majority of the outstanding voting securities of JDA (the “Standstill Period”), unless specifically\ninvited in writing by JDA or its Representatives, neither RHI nor any of its affiliates (as such term is defined under the Securities Exchange Act of\n1934, as amended (the “1934 Act”)) which has been furnished with Evaluation Material pursuant hereto (including New Mountain Capital LLC) or\nRepresentatives (acting on its behalf) will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person\nto effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of the equity securities (or beneficial ownership thereof) or any material assets of JDA or any of its\nsubsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving JDA or any of its subsidiaries,\n4\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to JDA or any of\nits subsidiaries, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of JDA;\n(b) form, join or in any way participate in a “group” (as defined under the 1934 Act with respect to the voting securities of JDA;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving JDA or its voting securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to change, control or influence the management, Board of Directors or policies\nof JDA;\n(e) take any action which might force JDA to make a public announcement regarding any of the types of matters set forth in (a) above;\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing; or\n(g) make any public announcement inconsistent with the agreements contained in this Section,\nRHI also agrees during the Standstill Period not to request (either directly or through its affiliates or Representatives) that JDA (or its directors,\nofficers, employees or agents), directly or indirectly, amend or waive any provision of this Section 10 (including this sentence) if such request would\nrequire JDA to publicly disclose such request. In no event shall this Section 10 be construed as prohibiting the taking of any of the aforementioned\nactions with respect to any Person other than JDA or any of its subsidiaries notwithstanding the fact that, at the time such action is taken, JDA (or a\nsubsidiary thereof) may be a subsidiary of such Person.\n11. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Party\nunderstands and agrees that the Parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual\nunderstanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of\nsuch material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation\nMaterial provided by a Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall\nremain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.\n5\n12. Compliance with Securities Laws. The Recipient and its Representatives agree not to use any Evaluation Material of the Provider in\nviolation of applicable securities laws.\n13. Not a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Party hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until\nboth Parties shall have entered into a final definitive agreement for a Possible Transaction. Each Party also agrees that, unless and until a final\ndefinitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will be under any legal obligation of any kind\nwhatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein.\n14. No Representations or Warranties: No Obligation to Disclose. The Recipient understands and acknowledges that neither the Provider nor\nits Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material\nfurnished by or on behalf of the Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting\nfrom the use of the Evaluation Material furnished to the Recipient or its Representatives or any errors therein or omissions therefrom. As to the\ninformation delivered to the Recipient, the Provider will only be liable for those representations or warranties which are made in a final definitive\nagreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein.\nNothing in this Agreement shall be construed as obligating a Party to provide, or to continue to provide, any information to any Person.\n15. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of\nthe other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n16. Remedies. Each Party understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by\neither Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to equitable relief, including\ninjunction and specific performance, as a remedy for any such breach or threat thereof without the requirement of posting a bond or other security.\nSuch remedies shall not be deemed to be the exclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other\nremedies available at law or equity to the Party against which such breach is committed. If a court of competent jurisdiction, pursuant to a final, non-\nappealable order, determines that the Recipient or any of its Representatives has breached this Agreement, the Recipient shall pay the reasonable\ncosts (including legal fees and expenses) incurred by the Provider in enforcing this Agreement.\n17. Governing Law. This Agreement is for the benefit of each Party and its successors (including any purchaser of such Party) and shall be\ngoverned by and construed in\naccordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Without limiting\nthe generality of the foregoing, this Agreement may be enforced by any Person with which the Recipient enters into a transaction. Each Party\nirrevocably and unconditionally submits to the jurisdiction of the federal and state courts located in the State of Delaware, New Castle County, for\nthe purpose of any action, suit or other proceeding arising out of or relating to this Agreement, and agree not to commence any action, suit or\nproceeding relating thereto except in any such court, and further agree that service of process, summons, notice or document by U.S. registered mail\nto its address set forth in this Agreement will be effective service of process for any action, suit or proceeding arising out of or relating to this\nAgreement. Each Party hereby also irrevocably and unconditionally (i) waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any such federal and state courts, and (ii) waives and agrees not to plead or claim in any such court that\nsuch action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n18. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n19. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n20. Term. This Agreement shall terminate two years after the date of this Agreement.\n21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter (including that certain Mutual\nNondisclosure Agreement, dated November 8, 2011, between JDA Software Group, Inc. and RedPrairie Holding, Inc.).\n22. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of\nthe date written below.\nREDPRAIRIE HOLDING, INC. JDA SOFTWARE GROUP, INC.\nBy: ’.LOGO By: ’.LOGO\nName: Laura L Fese Name: David Kennedy\nTitle:  Chief Legal Officer Title: Executive Vice President and Chief Legal Officer\nDate: 9/4/12 Date:\nAddress: 20700 Swenson Drive, Waukesha,WI 53186 Address: 14400 N. 87t Street, Scottsdale, AZ 85260-3649\nNEW MOUNTAIN CAPITAL LLC\nBy: ’.LOGO\nName: Jack Qian\nTitle:  Vice President\nDate:\nAddress: 787 Seventh Avenue, 49t Floor, New York, NY 10019	EX-99.D.3 12 d438799dex99d3.htm AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(3)\nEXECUTION COPY\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nThis Amended and Restated Mutual Nondisclosure Agreement (this "Agreement"), by and between JDA Software Group, Inc., a Delaware\ncorporation (together with its subsidiaries, "JDA"), and RedPrairie Holding, Inc., a Delaware corporation (together with its subsidiaries and New\nMountain Capital, LLC, "RHI") (each a "Party" and collectively, the "Parties"), is dated as of the latest date set forth on the signature page hereto.\n1. General. In connection with the consideration of a possible transaction involving RHI and JDA (a "Possible Transaction"), the Party\nreferred\nto\nas\nthe\n"Provider"\nis\nprepared\nto\nmake\navailable\nto\nthe\nParty\nreferred\nto\nas\nthe\n"Recipient"\ncertain\n"Evaluation\nMaterial"\n(as\ndefined\nin\nSection 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term "Evaluation Material" means information concerning the Provider which is furnished on or after November 8, 2011 to the\nRecipient or its Representatives (as defined below) on the Recipient's behalf in connection with the Recipient's evaluation of a Possible\nTransaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies,\ninterpretations or other documents prepared by the Recipient or its Representatives to the extent containing or which are based upon, in whole\nor in part, the information furnished by the Provider hereunder, The term Evaluation Material does not include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii)\nwas\nwithin the Recipient's or its Representatives possession prior to its being furnished to the Recipient or its Representatives by or on behalf of\nthe Provider, provided that the source of such information was not known by the Recipient or its Representatives to be bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such\ninformation, (iii) is or becomes available to the Recipient or its Representatives on a non-confidential basis from a source other than the\nProvider or its Representatives, provided that the source of such information was not known by the Recipient or its Representatives to be\nbound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to\nsuch information, or (iv) was or is independently developed by the Recipient or the Recipient's Representatives without the use of or reference\nto any Evaluation Material provided by or on behalf of Provider or its Representatives.\n(b) The term "Representatives" in the case of JDA shall mean the directors, officers, employees, counsel, investment bankers, financial\nadvisors, agents, consultants, advisors, accountants or auditors of JDA. The term "Representatives" in the case of RHI shall mean the\ndirectors, officers, employees, counsel, and with prior written consent of JDA (not to be unreasonably withheld), investment bankers, financial\nadvisors, potential sources of capital or financing (debt or equity), agents, consultants, advisors, accountants or auditors of RHI.\nNotwithstanding the foregoing, nothing in this Agreement shall restrict the ability of RHI to\ndiscuss with, or engage, Greenhill & Co, or Bain & Company to act as its consultant, investment banker or financial advisor in connection with\na Possible Transaction or to discuss with, or engage, Deloitte as its advisor or accountant in connection with a Possible Transaction.\n(c)\nThe term "Person" includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. The Recipient and its Representatives will use the Evaluation Material solely for the purpose of evaluating a\nPossible Transaction and, subject to Section 5, will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that\nany of such information may be disclosed to the Recipient's Representatives for the purpose of helping the Recipient evaluate a Possible\nTransaction. The Recipient agrees to be responsible for any breach of this Agreement by any of the Recipient's Representatives, other than those of\nRecipient's unaffiliated Representatives who have entered into a separate confidentiality agreement with the Provider. This Agreement does not grant\nthe Recipient or any of its Representatives any license to use the Provider's Evaluation Material except as provided herein. For the avoidance of\ndoubt, RHI agrees that it shall not disclose any of the Evaluation Material provided by or on behalf of JDA to any of its affiliates that are not\nincluded in the definition of RHI.\n4. Non-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other Party, such Party\nand its Representatives will not disclose to any other Person (i) that Evaluation Material has been exchanged between the Parties, (ii) that discussions\nor negotiations are taking place between the Parties concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect\nthereto (including the status thereof); provided, however, that JDA may make such disclosure if it does not identify RHI by name or by identifiable\ndescription. RHI agrees that neither RHI nor any Representative (to the extent acting on behalf or at the direction of RHI) of RHI will, without the\nprior consent of JDA (not to be unreasonably withheld), directly or indirectly, enter into any agreement, arrangement or understanding with any other\nperson regarding a Possible Transaction (including, without limitation, financing thereof). RHI represents and warrants that, except as disclosed to\nJDA or its outside counsel prior to the date hereof, neither RHI nor any Representative of RHI have, prior to the date hereof, taken any of the actions\nreferred to in the immediately preceding sentence. Without limiting the foregoing, RHI agrees that neither RHI nor any Representative (to the extent\nacting on behalf and at the direction of RHI) of RHI will, without the prior written consent of JDA, enter into any exclusive arrangement with\nrespect to the provision of debt financing in connection with a Possible Transaction. For purposes of this Agreement, any agreement, arrangement\nor\nother understanding, whether written or oral, with any potential debt financing source which does, or could be reasonably expected to, legally or\ncontractually limit, restrict or otherwise impair in any manner, directly or indirectly, such financing source from acting as a potential debt financing\nsource to any other party with respect to a Potential Transaction shall be deemed an exclusive arrangement.\n5. Legally Required Disclosure. If the Recipient or its Representatives are requested or required (by oral questions, interrogatories, other\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the\nEvaluation Material or any of the facts disclosure of which is prohibited\n2\nunder Section 4 above, the Recipient or such Representative shall provide the Provider with prompt written notice of any such request\nor\nrequirement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, the Recipient or any of its\nRepresentatives is nonetheless legally compelled or required by law to disclose Evaluation Material or any of the facts disclosure of which\nis\nprohibited under Section 4, the Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion\nof such Evaluation Material or any such facts which the Recipient or its Representatives is legally compelled or required by law to disclose; provided\nthat the Recipient and/or its Representatives exercise its commercially reasonable efforts, at the Provider's sole expense, to preserve the\nconfidentiality of such Evaluation Material or any of such facts, including, without limitation, by reasonably cooperating with the Provider to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the\nPerson receiving the material. Notwithstanding the foregoing, Recipient and its Representatives may disclose such information, and need not provide\nsuch notice, in connection with a routine blanket audit or proceeding (including in response to oral questions or requests for information or\ndocuments) involving the Recipient or its Representatives, as applicable, by a regulatory authority with jurisdiction over the Recipient or such\nRepresentative where neither the Provider nor the Possible Transaction is the target of such proceeding or audit. In either case, the Recipient and its\nRepresentatives shall take reasonable measures to obtain confidential treatment with respect to any such information disclosed.\n6. No Contacts. Neither Party nor any of its Representatives will, in connection with its consideration of a Possible Transaction, initiate or\nmaintain any contact with any officer, director, employee, agent, supplier, customer, lender or competitor of the other Party, except with the prior\nwritten consent of the other Party. If discussions between the Parties regarding a Possible Transaction are terminated, the Parties and their\nRepresentatives shall promptly cease all such contacts that may have been previously authorized. Unless otherwise consented to by RHI or JDA, as\napplicable, in writing, all communications regarding a Possible Transaction, including (i) requests for information, (ii) requests for facility tours or\nmanagement meetings, (iii) discussions or questions regarding procedures, and (iv) requests for any consent required under this Agreement, will be\nsubmitted or directed (a) in the case of RHI, to Jack Qian at New Mountain Capital LLC (212-220-5040; jqian@newmountaincapital.com), or Paul\nIlse at RHI (678-639-5398; Paul.IIse@RedPrairie.com), and (b) in the case of JDA, to David Lubeck 415-315-8612;\ndavid.w.lubeck@jpmorgan.com) or Drago Rajkovic (415-315-8100; drago.rajkovic@jpmorgan.com) of J.P. Morgan Securities LLC or their\ndesignees.\n7. "Click Through" Agreements. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed\nby an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which the Recipient or its\nRepresentatives are granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, "clicking" on an "I Agree" icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that the Recipient's and its Representatives' confidentiality obligations with respect to the\nEvaluation Material are exclusively governed by this Agreement and may not be enlarged except by an agreement executed by the Parties hereto in\ntraditional written format.\n3\n8. Termination of Discussions. If either Party decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the\nother Party of that decision. In that case, or at any time upon the written request of the Provider for any reason, the Recipient will, and will direct its\nRepresentatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to\nthe Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be\nretained (except that one copy may be maintained by outside legal counsel to the Recipient for archival purposes), and the term of this Agreement\nshall be extended by a like number of days for each day that the Recipient or any of its Representatives is in non-compliance of this Section 8. The\nRecipient shall provide to the Provider a certificate of compliance with the previous sentence. Notwithstanding the return or destruction of the\nEvaluation Material, the Recipient and its Representatives will continue to be bound by the Recipient's obligations hereunder with respect to such\nEvaluation Material.\n9.\nNo Solicitation. The Recipient will not, within one year from the date of this Agreement, solicit the employment or consulting services of\nany of the officers of the Provider with whom it has had contact in connection with its evaluation of a Possible Transaction, so long as they are\nemployed by the Provider. The Recipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any particular\nindividual or the employees of the Provider generally, or (ii) engaging any recruiting firm or similar organization to identify or solicit individuals for\nemployment on behalf of the Recipient (and soliciting any person identified by any such recruiting firm or organization) so long as the Recipient\ndoes not identify the individuals to be solicited by such recruiting firm or organization.\n10. Standstill. RHI agrees that, for a period ending on the earlier of (x) one year after the date of this Agreement, (y) the date a public\nannouncement is made of the entry by JDA into a binding definitive agreement with any third party to effect a purchase, tender or exchange offer,\nmerger or other business combination that, if consummated, would result in a third party owning at least a majority of the outstanding voting\nsecurities of JDA or all or substantially all of the assets of JDA and its subsidiaries (taken as a whole) or (z) the date of commencement by a third\nparty of a tender or exchange offer for at least a majority of the outstanding voting securities of JDA (the "Standstill Period"), unless specifically\ninvited in writing by JDA or its Representatives, neither RHI nor any of its affiliates (as such term is defined under the Securities Exchange Act of\n1934, as amended (the "1934 Act")) which has been furnished with Evaluation Material pursuant hereto (including New Mountain Capital LLC) or\nRepresentatives (acting on its behalf) will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person\nto effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i)\nany acquisition of the equity securities (or beneficial ownership thereof) or any material assets of JDA or any of its\nsubsidiaries,\n(ii)\nany tender or exchange offer, merger or other business combination involving JDA or any of its subsidiaries,\n4\n(iii)\nany\nrecapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to JDA or any\nof\nits subsidiaries, or\n(iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission)\nor\nconsents to vote any voting securities of JDA;\n(b) form, join or in any way participate in a "group" (as defined under the 1934 Act with respect to the voting securities of JDA;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving JDA or its voting securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to change, control or influence the management, Board of Directors or policies\nof JDA;\n(e) take any action which might force JDA to make a public announcement regarding any of the types of matters set forth in (a) above;\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing; or\n(g) make any public announcement inconsistent with the agreements contained in this Section,\nRHI also agrees during the Standstill Period not to request (either directly or through its affiliates or Representatives) that JDA (or its directors,\nofficers, employees or agents), directly or indirectly, amend or waive any provision of this Section 10 (including this sentence) if such request would\nrequire JDA to publicly disclose such request. In no event shall this Section 10 be construed as prohibiting the taking of any of the aforementioned\nactions with respect to any Person other than JDA or any of its subsidiaries notwithstanding the fact that, at the time such action is taken, JDA (or a\nsubsidiary thereof) may be a subsidiary of such Person.\n11.\nMaintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Party\nunderstands and agrees that the Parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual\nunderstanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of\nsuch material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation\nMaterial provided by a Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nshall\nremain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.\n5\n12. Compliance with Securities Laws. The Recipient and its Representatives agree not to use any Evaluation Material of the Provider in\nviolation of applicable securities laws.\n13. Not a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Party hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until\nboth Parties shall have entered into a final definitive agreement for a Possible Transaction. Each Party also agrees that, unless and until a final\ndefinitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will be under any legal obligation of any kind\nwhatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein.\n14. No Representations or Warranties: No Obligation to Disclose. The Recipient understands and acknowledges that neither the Provider nor\nits Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material\nfurnished by or on behalf of the Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting\nfrom the use of the Evaluation Material furnished to the Recipient or its Representatives or any errors therein or omissions therefrom. As to\nthe\ninformation delivered to the Recipient, the Provider will only be liable for those representations or warranties which are made in a final definitive\nagreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein.\nNothing in this Agreement shall be construed as obligating a Party to provide, or to continue to provide, any information to any Person.\n15. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of\nthe other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n16.\nRemedies. Each Party understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by\neither Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to equitable relief, including\ninjunction and specific performance, as a remedy for any such breach or threat thereof without the requirement of posting a bond or other security.\nSuch remedies shall not be deemed to be the exclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other\nremedies available at law or equity to the Party against which such breach is committed. If a court of competent jurisdiction, pursuant to a final, non-\nappealable order, determines that the Recipient or any of its Representatives has breached this Agreement, the Recipient shall pay the reasonable\ncosts (including legal fees and expenses) incurred by the Provider in enforcing this Agreement.\n17. Governing Law. This Agreement is for the benefit of each Party and its successors (including any purchaser of such Party) and shall be\ngoverned by and construed in\n6\naccordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Without limiting\nthe generality of the foregoing, this Agreement may be enforced by any Person with which the Recipient enters into a transaction. Each Party\nirrevocably and unconditionally submits to the jurisdiction of the federal and state courts located in the State of Delaware, New Castle County, for\nthe purpose of any action, suit or other proceeding arising out of or relating to this Agreement, and agree not to commence any action, suit or\nproceeding relating thereto except in any such court, and further agree that service of process, summons, notice or document by U.S. registered mail\nto its address set forth in this Agreement will be effective service of process for any action, suit or proceeding arising out of or relating to this\nAgreement. Each Party hereby also irrevocably and unconditionally (i) waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any such federal and state courts, and (ii) waives and agrees not to plead or claim in any such court that\nsuch action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n18. Severability.. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n19. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n20. Term. This Agreement shall terminate two years after the date of this Agreement.\n21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter (including that certain Mutual\nNondisclosure Agreement, dated November 8, 2011, between JDA Software Group, Inc. and RedPrairie Holding, Inc.).\n22. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\n7\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of\nthe date written below.\nREDPRAIRIE HOLDING, INC.\nJDA SOFTWARE GROUP, INC.\nBy:\nLOGO\nBy:\nLOGO\nName: Laura L Fese\nName: David Kennedy\nTitle: Chief Legal Officer\nTitle: Executive Vice President and Chief Legal Officer\nDate: 9/4/12\nDate:\nAddress: 20700 Swenson Drive, Waukesha, WI 53186\nAddress: 14400 N. 87th Street, Scottsdale, AZ 85260-3649\nNEW MOUNTAIN CAPITAL LLC\nBy:\nLOGO\nName: Jack Qian\nTitle: Vice President\nDate:\nAddress: 787 Seventh Avenue, 49th Floor, New York, NY 10019\n8	EX-99.D.3 12 d438799dex99d3.htm AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(3)\nEXECUTION COPY\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nThis Amended and Restated Mutual Nondisclosure Agreement (this “Agreement”), by and between JDA Software Group, Inc., a Delaware\ncorporation (together with its subsidiaries, “JDA”), and RedPrairie Holding, Inc., a Delaware corporation (together with its subsidiaries and New\nMountain Capital, LLC, “RHI”) (each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto.\n1. General. In connection with the consideration of a possible transaction involving RHI and JDA (a “Possible Transaction”), the Party\nreferred to as the “Provider” is prepared to make available to the Party referred to as the “Recipient” certain “Evaluation Material” (as defined in\nSection 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term “Evaluation Material” means information concerning the Provider which is furnished on or after November 8, 2011 to the\nRecipient or its Representatives (as defined below) on the Recipient's behalf in connection with the Recipient’s evaluation of a Possible\nTransaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies,\ninterpretations or other documents prepared by the Recipient or its Representatives to the extent containing or which are based upon, in whole\nor in part, the information furnished by the Provider hereunder, The term Evaluation Material does not include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was\nwithin the Recipient’s or its Representatives possession prior to its being furnished to the Recipient or its Representatives by or on behalf of\nthe Provider, provided that the source of such information was not known by the Recipient or its Representatives to be bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such\ninformation, (iii) is or becomes available to the Recipient or its Representatives on a non-confidential basis from a source other than the\nProvider or its Representatives, provided that the source of such information was not known by the Recipient or its Representatives to be\nbound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to\nsuch information, or (iv) was or is independently developed by the Recipient or the Recipient’s Representatives without the use of or reference\nto any Evaluation Material provided by or on behalf of Provider or its Representatives.\n(b) The term “Representatives” in the case of JDA shall mean the directors, officers, employees, counsel, investment bankers, financial\nadvisors, agents, consultants, advisors, accountants or auditors of JDA. The term “Representatives” in the case of RHI shall mean the\ndirectors, officers, employees, counsel, and with prior written consent of JDA (not to be unreasonably withheld), investment bankers, financial\nadvisors, potential sources of capital or financing (debt or equity), agents, consultants, advisors, accountants or auditors of RHI.\nNotwithstanding the foregoing, nothing in this Agreement shall restrict the ability of RHI to\ndiscuss with, or engage, Greenhill & Co, or Bain & Company to act as its consultant, investment banker or financial advisor in connection with\na Possible Transaction or to discuss with, or engage, Deloitte as its advisor or accountant in connection with a Possible Transaction.\n(c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. The Recipient and its Representatives will use the Evaluation Material solely for the purpose of evaluating a\nPossible Transaction and, subject to Section 5, will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that\nany of such information may be disclosed to the Recipient’s Representatives for the purpose of helping the Recipient evaluate a Possible\nTransaction. The Recipient agrees to be responsible for any breach of this Agreement by any of the Recipient’s Representatives, other than those of\nRecipient’s unaffiliated Representatives who have entered into a separate confidentiality agreement with the Provider. This Agreement does not grant\nthe Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. For the avoidance of\ndoubt, RHI agrees that it shall not disclose any of the Evaluation Material provided by or on behalf of JDA to any of its affiliates that are not\nincluded in the definition of RHI.\n4. Non-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other Party, such Party\nand its Representatives will not disclose to any other Person (i) that Evaluation Material has been exchanged between the Parties, (ii) that discussions\nor negotiations are taking place between the Parties concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect\nthereto (including the status thereof); provided, however, that JDA may make such disclosure if it does not identify RHI by name or by identifiable\ndescription. RHI agrees that neither RHI nor any Representative (to the extent acting on behalf or at the direction of RHI) of RHI will, without the\nprior consent of JDA (not to be unreasonably withheld), directly or indirectly, enter into any agreement, arrangement or understanding with any other\nperson regarding a Possible Transaction (including, without limitation, financing thereof). RHI represents and warrants that, except as disclosed to\nJDA or its outside counsel prior to the date hereof, neither RHI nor any Representative of RHI have, prior to the date hereof, taken any of the actions\nreferred to in the immediately preceding sentence. Without limiting the foregoing, RHI agrees that neither RHI nor any Representative (to the extent\nacting on behalf and at the direction of RHI) of RHI will, without the prior written consent of JDA, enter into any exclusive arrangement with\nrespect to the provision of debt financing in connection with a Possible Transaction. For purposes of this Agreement, any agreement, arrangement or\nother understanding, whether written or oral, with any potential debt financing source which does, or could be reasonably expected to, legally or\ncontractually limit, restrict or otherwise impair in any manner, directly or indirectly, such financing source from acting as a potential debt financing\nsource to any other party with respect to a Potential Transaction shall be deemed an exclusive arrangement.\n5. Legally Required Disclosure. If the Recipient or its Representatives are requested or required (by oral questions, interrogatories, other\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the\nEvaluation Material or any of the facts disclosure of which is prohibited\n2\nunder Section 4 above, the Recipient or such Representative shall provide the Provider with prompt written notice of any such request or\nrequirement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, the Recipient or any of its\nRepresentatives is nonetheless legally compelled or required by law to disclose Evaluation Material or any of the facts disclosure of which is\nprohibited under Section 4, the Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion\nof such Evaluation Material or any such facts which the Recipient or its Representatives is legally compelled or required by law to disclose; provided\nthat the Recipient and/or its Representatives exercise its commercially reasonable efforts, at the Provider’s sole expense, to preserve the\nconfidentiality of such Evaluation Material or any of such facts, including, without limitation, by reasonably cooperating with the Provider to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the\nPerson receiving the material. Notwithstanding the foregoing, Recipient and its Representatives may disclose such information, and need not provide\nsuch notice, in connection with a routine blanket audit or proceeding (including in response to oral questions or requests for information or\ndocuments) involving the Recipient or its Representatives, as applicable, by a regulatory authority with jurisdiction over the Recipient or such\nRepresentative where neither the Provider nor the Possible Transaction is the target of such proceeding or audit. In either case, the Recipient and its\nRepresentatives shall take reasonable measures to obtain confidential treatment with respect to any such information disclosed.\n6. No Contacts. Neither Party nor any of its Representatives will, in connection with its consideration of a Possible Transaction, initiate or\nmaintain any contact with any officer, director, employee, agent, supplier, customer, lender or competitor of the other Party, except with the prior\nwritten consent of the other Party. If discussions between the Parties regarding a Possible Transaction are terminated, the Parties and their\nRepresentatives shall promptly cease all such contacts that may have been previously authorized. Unless otherwise consented to by RHI or JDA, as\napplicable, in writing, all communications regarding a Possible Transaction, including (i) requests for information, (ii) requests for facility tours or\nmanagement meetings, (iii) discussions or questions regarding procedures, and (iv) requests for any consent required under this Agreement, will be\nsubmitted or directed (a) in the case of RHI, to Jack Qian at New Mountain Capital LLC (212-220 -5040; jqian@newmountaincapital.com), or Paul\nIlse at RHI (678-639-5398; Paul.IIse@RedPrairie.com), and (b) in the case of JDA, to David Lubeck (415- 315-8612;\ndavid.w.lubeck@jpmorgan.com) or Drago Rajkovic (415-315-8100; drago.rajkovic@jpmorgan.com) of J.P. Morgan Securities LLC or their\ndesignees.\n7. “Click Through” Agreements. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed\nby an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which the Recipient or its\nRepresentatives are granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that the Recipient’s and its Representatives’ confidentiality obligations with respect to the\nEvaluation Material are exclusively governed by this Agreement and may not be enlarged except by an agreement executed by the Parties hereto in\ntraditional written format.\n3\n8. Termination of Discussions. If either Party decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the\nother Party of that decision. In that case, or at any time upon the written request of the Provider for any reason, the Recipient will, and will direct its\nRepresentatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to\nthe Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be\nretained (except that one copy may be maintained by outside legal counsel to the Recipient for archival purposes), and the term of this Agreement\nshall be extended by a like number of days for each day that the Recipient or any of its Representatives is in non-compliance of this Section 8. The\nRecipient shall provide to the Provider a certificate of compliance with the previous sentence. Notwithstanding the return or destruction of the\nEvaluation Material, the Recipient and its Representatives will continue to be bound by the Recipient’s obligations hereunder with respect to such\nEvaluation Material.\n9. No Solicitation. The Recipient will not, within one year from the date of this Agreement, solicit the employment or consulting services of\nany of the officers of the Provider with whom it has had contact in connection with its evaluation of a Possible Transaction, so long as they are\nemployed by the Provider. The Recipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any particular\nindividual or the employees of the Provider generally, or (ii) engaging any recruiting firm or similar organization to identify or solicit individuals for\nemployment on behalf of the Recipient (and soliciting any person identified by any such recruiting firm or organization) so long as the Recipient\ndoes not identify the individuals to be solicited by such recruiting firm or organization.\n10. Standstill. RHI agrees that, for a period ending on the earlier of (x) one year after the date of this Agreement, (y) the date a public\nannouncement is made of the entry by JDA into a binding definitive agreement with any third party to effect a purchase, tender or exchange offer,\nmerger or other business combination that, if consummated, would result in a third party owning at least a majority of the outstanding voting\nsecurities of JDA or all or substantially all of the assets of JDA and its subsidiaries (taken as a whole) or (z) the date of commencement by a third\nparty of a tender or exchange offer for at least a majority of the outstanding voting securities of JDA (the “Standstill Period”), unless specifically\ninvited in writing by JDA or its Representatives, neither RHI nor any of its affiliates (as such term is defined under the Securities Exchange Act of\n1934, as amended (the “1934 Act”)) which has been furnished with Evaluation Material pursuant hereto (including New Mountain Capital LLC) or\nRepresentatives (acting on its behalf) will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person\nto effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of the equity securities (or beneficial ownership thereof) or any material assets of JDA or any of its\nsubsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving JDA or any of its subsidiaries,\n4\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to JDA or any of\nits subsidiaries, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of JDA;\n(b) form, join or in any way participate in a “group” (as defined under the 1934 Act with respect to the voting securities of JDA;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving JDA or its voting securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to change, control or influence the management, Board of Directors or policies\nof JDA;\n(e) take any action which might force JDA to make a public announcement regarding any of the types of matters set forth in (a) above;\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing; or\n(g) make any public announcement inconsistent with the agreements contained in this Section,\nRHI also agrees during the Standstill Period not to request (either directly or through its affiliates or Representatives) that JDA (or its directors,\nofficers, employees or agents), directly or indirectly, amend or waive any provision of this Section 10 (including this sentence) if such request would\nrequire JDA to publicly disclose such request. In no event shall this Section 10 be construed as prohibiting the taking of any of the aforementioned\nactions with respect to any Person other than JDA or any of its subsidiaries notwithstanding the fact that, at the time such action is taken, JDA (or a\nsubsidiary thereof) may be a subsidiary of such Person.\n11. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Party\nunderstands and agrees that the Parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual\nunderstanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of\nsuch material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation\nMaterial provided by a Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall\nremain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.\n5\n12. Compliance with Securities Laws. The Recipient and its Representatives agree not to use any Evaluation Material of the Provider in\nviolation of applicable securities laws.\n13. Not a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Party hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until\nboth Parties shall have entered into a final definitive agreement for a Possible Transaction. Each Party also agrees that, unless and until a final\ndefinitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will be under any legal obligation of any kind\nwhatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein.\n14. No Representations or Warranties: No Obligation to Disclose. The Recipient understands and acknowledges that neither the Provider nor\nits Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material\nfurnished by or on behalf of the Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting\nfrom the use of the Evaluation Material furnished to the Recipient or its Representatives or any errors therein or omissions therefrom. As to the\ninformation delivered to the Recipient, the Provider will only be liable for those representations or warranties which are made in a final definitive\nagreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein.\nNothing in this Agreement shall be construed as obligating a Party to provide, or to continue to provide, any information to any Person.\n15. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of\nthe other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n16. Remedies. Each Party understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by\neither Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to equitable relief, including\ninjunction and specific performance, as a remedy for any such breach or threat thereof without the requirement of posting a bond or other security.\nSuch remedies shall not be deemed to be the exclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other\nremedies available at law or equity to the Party against which such breach is committed. If a court of competent jurisdiction, pursuant to a final, non-\nappealable order, determines that the Recipient or any of its Representatives has breached this Agreement, the Recipient shall pay the reasonable\ncosts (including legal fees and expenses) incurred by the Provider in enforcing this Agreement.\n17. Governing Law. This Agreement is for the benefit of each Party and its successors (including any purchaser of such Party) and shall be\ngoverned by and construed in\n6\naccordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Without limiting\nthe generality of the foregoing, this Agreement may be enforced by any Person with which the Recipient enters into a transaction. Each Party\nirrevocably and unconditionally submits to the jurisdiction of the federal and state courts located in the State of Delaware, New Castle County, for\nthe purpose of any action, suit or other proceeding arising out of or relating to this Agreement, and agree not to commence any action, suit or\nproceeding relating thereto except in any such court, and further agree that service of process, summons, notice or document by U.S . registered mail\nto its address set forth in this Agreement will be effective service of process for any action, suit or proceeding arising out of or relating to this\nAgreement. Each Party hereby also irrevocably and unconditionally (i) waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any such federal and state courts, and (ii) waives and agrees not to plead or claim in any such court that\nsuch action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n18. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n19. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n20. Term. This Agreement shall terminate two years after the date of this Agreement.\n21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter (including that certain Mutual\nNondisclosure Agreement, dated November 8, 2011, between JDA Software Group, Inc. and RedPrairie Holding, Inc.).\n22. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\n7\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of\nthe date written below.\nREDPRAIRIE HOLDING, INC.\nJDA SOFTWARE GROUP, INC.\nBy:\nLOGO\nBy:\nLOGO\nName: Laura L Fese\nName: David Kennedy\nTitle: Chief Legal Officer\nTitle: Executive Vice President and Chief Legal Officer\nDate: 9/4/12\nDate:\nAddress: 20700 Swenson Drive, Waukesha,WI 53186\nAddress: 14400 N. 87 Street, Scottsdale, AZ 85260-3649\nNEW MOUNTAIN CAPITAL LLC\nBy:\nLOGO\nName: Jack Qian\nTitle: Vice President\nDate:\nAddress: 787 Seventh Avenue, 49 Floor, New York, NY 10019\n8\nth\nth
+0fe8eaee697774ac95f9186dd2fc3364.pdf	effective_date jurisdiction party term	EX-10.1 2 a09-6413_1ex10d1.htm EX-10.1\nExhibit 10.1\nEffective as of February 23, 2009\nKenneth M. Bate\n33 Middle Street\nConcord, MA 01742\nDear Ken:\nEffective immediately prior to the closing of the Merger (as such term is defined in that certain Agreement and Plan of Merger, dated as\nof January 27, 2009, by and among NitroMed, Inc. (“NitroMed”), NTMD Parent Acquisition Corp., NTMD Acquisition Corp., Deerfield Private\nDesign Fund, L.P., Deerfield Private Design International, L.P., Deerfield Special Situations Fund, L.P. and Deerfield Special Situations Fund\nInternational Limited), unless you are earlier terminated for cause, you will be terminated without cause as NitroMed’s President, Chief Executive\nOfficer and Interim Chief Financial Officer. This agreement (the “Agreement”) sets forth the terms pursuant to which you will be terminated\nwithout cause immediately prior to closing of such Merger; the time of such closing is referred to herein as the “Effective Time” and the date of\nsuch closing is referred to herein as the “Effective Date.”\n1. Separation Benefits. Reference is hereby made to that certain Retention Agreement, dated as of January 23, 2007, between you and\nNitroMed, as amended by that certain letter agreement dated as of December 29, 2008, which is attached to this Agreement as Exhibit A and is\nincorporated herein (the “Change in Control Agreement”). In connection with the termination without cause of your employment immediately\nprior to the Effective Time, NitroMed is required to provide you with the benefits set forth in the Change in Control Agreement, including\nwithout limitation the benefits set forth in Section 4.2 thereof.\n2. Other Agreements. You hereby reaffirm your obligations set forth in the NitroMed Inventions and Non-Disclosure Agreement\npreviously executed between NitroMed and you (attached hereto as Exhibit B and incorporated herein by reference). You further agree to abide\nby any and all common law and/or statutory obligations relating to the protection and non-disclosure of NitroMed’s trade secrets and/or\nconfidential and proprietary documents and information.\n3. Release. You hereby acknowledge and agree that by signing this Agreement and accepting the economic benefits set forth in\nparagraph 1 above, you are waiving your right to assert, and releasing NitroMed from, any form of legal claim against NitroMed of any kind\nwhatsoever from the beginning of time through and including the Effective Date. Your waiver and release is intended to bar any form of legal\nclaim, charge, complaint or any other form of action (jointly referred to as “Claims”) against NitroMed seeking any form of relief including,\nwithout limitation, equitable relief (whether declaratory, injunctive or otherwise), the recovery of any damages or any other form of monetary\nrecovery\nwhatsoever (including, without limitation, back pay, front pay, compensatory damages, emotional distress damages, punitive damages, attorneys’\nfees and any other costs) against NitroMed up through and including the Effective Date. You understand that there could be unknown or\nunanticipated Claims resulting from your employment with NitroMed and the termination thereof and agree that such Claims are intended to be,\nand are, included in this waiver and release.\n4. Miscellaneous. This Agreement does not confer any additional benefits upon you that you are not otherwise already entitled to\nreceive pursuant to existing agreements between you and NitroMed, and the benefits set forth in paragraph 2 of this Agreement reflect all of the\nseverance benefits that you are entitled to receive upon termination of your employment at the Effective Time. No variations or modifications\nhereof shall be deemed valid unless reduced to writing and signed by NitroMed and you. This Agreement shall be deemed to have been made in\nthe Commonwealth of Massachusetts and shall take effect as an instrument under seal within the Commonwealth of Massachusetts. The validity,\ninterpretation and performance of this Agreement, and any and all other matters relating to your employment and separation of employment from\nNitroMed, shall be governed by, and construed in accordance with, the internal laws of the Commonwealth of Massachusetts, without giving\neffect to conflict of law principles. Both parties agree that any action, demand, claim or counterclaim relating to (i) your employment and\nseparation of your employment, and (ii) the terms and provisions of this Agreement or to its breach, shall be commenced in the Commonwealth\nof Massachusetts in a court of competent jurisdiction. Both parties further agree that any such action, demand, claim or counterclaim shall be\ntried by a judge alone, and both parties hereby waive and forever renounce the right to a trial before a civil jury. The provisions of this\nAgreement are severable, and if for any reason any part hereof shall be found to be unenforceable, the remaining provisions shall be enforced in\nfull. It is NitroMed’s desire and intent to make certain that you fully understand the provisions and effects of this Agreement. To that end, you\nhave been encouraged and given an opportunity to consult with legal counsel. By executing this Agreement, you are acknowledging that you\nhave been afforded sufficient time to understand the provisions and effects of this Agreement and to consult with legal counsel, that your\nagreements and obligations under this Agreement are made voluntarily, knowingly and without duress and that neither NitroMed nor its agents or\nrepresentatives have made any representations inconsistent with the provisions of this Agreement.\n2\nIf the foregoing correctly sets forth our arrangement, please sign, date and return the enclosed copy of this Agreement to me.\nSincerely,\nNITROMED, INC.\n/s/ Mark Leschly\nMark Leschly\nChairman, Compensation Committee\nSigned and Agreed To:\n/s/ Kenneth M. Bate\nName: Kenneth M. Bate\n3\nExhibit A\nFor a copy of the Retention Agreement, dated as of January 23, 2007, between Kenneth M. Bate and NitroMed, Inc., please see Exhibit 10.2 to\nNitroMed, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on January 25, 2007.\nFor a copy of the letter amendment to the Retention Agreement, dated as of December 29, 2008, between Kenneth M. Bate and NitroMed, Inc.,\nplease see Exhibit 10.2 to NitroMed, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on December 31,\n2008.\n4\nExhibit B\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement is made between NitroMed, Inc., a Delaware corporation (hereinafter referred to collectively with its subsidiaries as the\n“Company”), and Kenneth M. Bate (“Employee”).\nIn consideration of the employment of the continued employment of the Employee by the Company, the Company and the Employee\nagree as follows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, Secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, presses, methods, techniques,\nformulas, compositions compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer\nprograms, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will\nnot disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other\nthan in the performance of his/her duties as an employee of the Company) without written approval by an officer of the company, either during or\nafter his/her employment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the\nEmployee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks,\nprogram listings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee\nor others, which shall come into his/her custody or possession, shall be and are the exclusive property of the company to be used by the\nEmployee only in the performance of his/her duties for the company. All such materials or copies thereof and all tangible property of the\ncompany in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (I) a request by the Company, or\n(ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such\ntangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in\nparagraphs (a) and (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to\nsuch types of information, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who\nmay have disclosed or entrusted the same to the company or to the Employee.\n5\n2. Developments.\n(a) Inventions, improvements, discoveries, methods, developments, software, and works of authorship, whether patentable or not,\nwhich are created, made, conceived or reduced to practice by him/her or under his/her direction or jointly with others during his/her employment\nby the Company, whether or not during normal working hours or on the premises of the Company (all of which are collectively referred to in this\nAgreement as “Developments”.\n(b) The Employee agrees to assign and does hereby assign to the Company (or) any person or entity designated by the Company)\nall his/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the company and which are made and conceived by the Employee not during normal working hours, not on the Company’s\npremises and not using the Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain\nclasses of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the\nCompany agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with\nrespect to the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States\nand foreign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interest in any development. The Employee further agrees that if the Company is unable,\nafter reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to\nexecute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints\neach executive officer of the Company as his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take any and all\nactions as the Company may deem necessary or desirable in order to protect its rights and interests in any Development, under the conditions\ndescribed in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by\nthe terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or\nproprietary information in the course of his/her employment with the Company or refrain from competing, directly or indirectly, with the\nbusiness of such previous employer or any other party. The Employee further represents that his/her performance of all the terms of this\nAgreement wand as an employee of the Company does not and will not breach any other agreement to which the Employee is a party including\nbut not limited to any agreement to keep in confidence proprietary information, knowledge or data acquired by the Employee in confidence or in\ntrust prior to his/her employment with the Company, and the Employee will not disclose to the company or induce the Company to use any\nconfidential or proprietary information or material belonging to any previous employer or others.\n6\n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n5. No Employment Contract.\nThe Employee understands that this Agreement does not constitute a contract of employment and does not imply that his/her\nemployment will continue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation\nafter the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any\nsubsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be resigned at the\ntime of such transfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the company and\nare considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition\nto such other remedies which may be available, shall be entitled to specific performance and other injunctive relief, and employee waives the\nclaim or defense that the Company has an adequate remedy at law. Employee shall not, in any action or proceeding to enforce any of the\nprovisions of this Agreement, assert the claim or defense that such an adequate remedy at law exists.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or\nrelating to any provisions of this\n7\nAgreement shall be commenced only in a court of the Commonwealth of Massachusetts (or, if appropriate, a federal court located within\nMassachusetts), and the Company and the Employee each consents to the jurisdiction of such a court.\n(h) Employee shall disclose the existence of the terms of this Agreement to any employer or other person that Employee may work\nfor or be engaged by after the termination of his or her employment or engagement at the Company. Employee agrees that the Company may,\nafter notification to Employee, provide a copy of this Agreement to any business or enterprise (I) which Employee may directly or indirectly\nown, manage, operate, finance, join, control or participate in the ownership, management, operation, financing, or control of, or (ii) with which\nthe Employee may be connected with as an officer, director, employee, partner, principal, agent, representative, consultant or other wise, or in\nconnection with which Employee may use or permit Employee’s name to be used. Employee to provide the names and addresses of any such\npersons or entities as the company may from time to time request.\n8\nINVENTION AND NON-DISCLOSURE AGREEMENT\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nSigned By:\n/s/ Kenneth M. Bate\nPrinted Name: Kenneth M. Bate\nDate:\n3/23/06\n*Please return signature page only to Human Resources.\n9	EX-10.1 2 a09-6413_1ex10d1.htm EX-10.1\nExhibit 10.1\nEffective as of February 23, 2009\nKenneth M. Bate\n33 Middle Street\nConcord, MA 01742\nDear Ken:\nEffective immediately prior to the closing of the Merger (as such term is defined in that certain Agreement and Plan of Merger, dated as\nof January 27, 2009, by and among NitroMed, Inc. (“NitroMed”), NTMD Parent Acquisition Corp., NTMD Acquisition Corp., Deerfield Private\nDesign Fund, L.P., Deerfield Private Design International, L.P., Deerfield Special Situations Fund, L.P. and Deerfield Special Situations Fund\nInternational Limited), unless you are earlier terminated for cause, you will be terminated without cause as NitroMed’s President, Chief Executive\nOfficer and Interim Chief Financial Officer. This agreement (the “Agreement”) sets forth the terms pursuant to which you will be terminated\nwithout cause immediately prior to closing of such Merger; the time of such closing is referred to herein as the “Effective Time” and the date of\nsuch closing is referred to herein as the “Effective Date.”\n1. Separation Benefits. Reference is hereby made to that certain Retention Agreement, dated as of January 23, 2007, between you and\nNitroMed, as amended by that certain letter agreement dated as of December 29, 2008, which is attached to this Agreement as Exhibit A and is\nincorporated herein (the “Change in Control Agreement”). In connection with the termination without cause of your employment immediately\nprior to the Effective Time, NitroMed is required to provide you with the benefits set forth in the Change in Control Agreement, including\nwithout limitation the benefits set forth in Section 4.2 thereof.\n2. Other Agreements. You hereby reaffirm your obligations set forth in the NitroMed Inventions and Non-Disclosure Agreement\npreviously executed between NitroMed and you (attached hereto as Exhibit B and incorporated herein by reference). You further agree to abide\nby any and all common law and/or statutory obligations relating to the protection and non-disclosure of NitroMed’s trade secrets and/or\nconfidential and proprietary documents and information.\n3. Release. You hereby acknowledge and agree that by signing this Agreement and accepting the economic benefits set forth in\nparagraph 1 above, you are waiving your right to assert, and releasing NitroMed from, any form of legal claim against NitroMed of any kind\nwhatsoever from the beginning of time through and including the Effective Date. Your waiver and release is intended to bar any form of legal\nclaim, charge, complaint or any other form of action (jointly referred to as “Claims”) against NitroMed seeking any form of relief including,\nwithout limitation, equitable relief (whether declaratory, injunctive or otherwise), the recovery of any damages or any other form of monetary\nrecovery\n \nwhatsoever (including, without limitation, back pay, front pay, compensatory damages, emotional distress damages, punitive damages, attorneys’\nfees and any other costs) against NitroMed up through and including the Effective Date. You understand that there could be unknown or\nunanticipated Claims resulting from your employment with NitroMed and the termination thereof and agree that such Claims are intended to be,\nand are, included in this waiver and release.\n4. Miscellaneous. This Agreement does not confer any additional benefits upon you that you are not otherwise already entitled to\nreceive pursuant to existing agreements between you and NitroMed, and the benefits set forth in paragraph 2 of this Agreement reflect all of the\nseverance benefits that you are entitled to receive upon termination of your employment at the Effective Time. No variations or modifications\nhereof shall be deemed valid unless reduced to writing and signed by NitroMed and you. This Agreement shall be deemed to have been made in\nthe Commonwealth of Massachusetts and shall take effect as an instrument under seal within the Commonwealth of Massachusetts. The validity,\ninterpretation and performance of this Agreement, and any and all other matters relating to your employment and separation of employment from\nNitroMed, shall be governed by, and construed in accordance with, the internal laws of the Commonwealth of Massachusetts, without giving\neffect to conflict of law principles. Both parties agree that any action, demand, claim or counterclaim relating to (i) your employment and\nseparation of your employment, and (ii) the terms and provisions of this Agreement or to its breach, shall be commenced in the Commonwealth\nof Massachusetts in a court of competent jurisdiction. Both parties further agree that any such action, demand, claim or counterclaim shall be\ntried by a judge alone, and both parties hereby waive and forever renounce the right to a trial before a civil jury. The provisions of this\nAgreement are severable, and if for any reason any part hereof shall be found to be unenforceable, the remaining provisions shall be enforced in\nfull. Itis NitroMed’s desire and intent to make certain that you fully understand the provisions and effects of this Agreement. To that end, you\nhave been encouraged and given an opportunity to consult with legal counsel. By executing this Agreement, you are acknowledging that you\nhave been afforded sufficient time to understand the provisions and effects of this Agreement and to consult with legal counsel, that your\nagreements and obligations under this Agreement are made voluntarily, knowingly and without duress and that neither NitroMed nor its agents or\nrepresentatives have made any representations inconsistent with the provisions of this Agreement.\n2\n \nIf the foregoing correctly sets forth our arrangement, please sign, date and return the enclosed copy of this Agreement to me.\nSincerely,\nNITROMED, INC.\n/s/ Mark Leschly\nMark Leschly\nChairman, Compensation Committee\nSigned and Agreed To:\n/s/ Kenneth M. Bate\nName: Kenneth M. Bate\n \nExhibit A\nFor a copy of the Retention Agreement, dated as of January 23, 2007, between Kenneth M. Bate and NitroMed, Inc., please see Exhibit 10.2 to\nNitroMed, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on January 25, 2007.\nFor a copy of the letter amendment to the Retention Agreement, dated as of December 29, 2008, between Kenneth M. Bate and NitroMed, Inc.,\nplease see Exhibit 10.2 to NitroMed, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on December 31,\n2008.\n \nExhibit B\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement is made between NitroMed, Inc., a Delaware corporation (hereinafter referred to collectively with its subsidiaries as the\n“Company”), and Kenneth M. Bate (“Employee™).\nIn consideration of the employment of the continued employment of the Employee by the Company, the Company and the Employee\nagree as follows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, Secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information™) is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, presses, methods, techniques,\nformulas, compositions compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer\nprograms, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will\nnot disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other\nthan in the performance of his/her duties as an employee of the Company) without written approval by an officer of the company, either during or\nafter his/her employment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the\nEmployee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks,\nprogram listings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee\nor others, which shall come into his/her custody or possession, shall be and are the exclusive property of the company to be used by the\nEmployee only in the performance of his/her duties for the company. All such materials or copies thereof and all tangible property of the\ncompany in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (I) a request by the Company, or\n(ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such\ntangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in\nparagraphs (a) and (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to\nsuch types of information, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who\nmay have disclosed or entrusted the same to the company or to the Employee.\n \n2. Developments.\n(a) Inventions, improvements, discoveries, methods, developments, software, and works of authorship, whether patentable or not,\nwhich are created, made, conceived or reduced to practice by him/her or under his/her direction or jointly with others during his/her employment\nby the Company, whether or not during normal working hours or on the premises of the Company (all of which are collectively referred to in this\nAgreement as “Developments”.\n(b) The Employee agrees to assign and does hereby assign to the Company (or) any person or entity designated by the Company)\nall his/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the company and which are made and conceived by the Employee not during normal working hours, not on the Company’s\npremises and not using the Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain\nclasses of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the\nCompany agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with\nrespect to the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States\nand foreign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interest in any development. The Employee further agrees that if the Company is unable,\nafter reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to\nexecute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints\neach executive officer of the Company as his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take any and all\nactions as the Company may deem necessary or desirable in order to protect its rights and interests in any Development, under the conditions\ndescribed in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by\nthe terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or\nproprietary information in the course of his/her employment with the Company or refrain from competing, directly or indirectly, with the\nbusiness of such previous employer or any other party. The Employee further represents that his/her performance of all the terms of this\nAgreement wand as an employee of the Company does not and will not breach any other agreement to which the Employee is a party including\nbut not limited to any agreement to keep in confidence proprietary information, knowledge or data acquired by the Employee in confidence or in\ntrust prior to his/her employment with the Company, and the Employee will not disclose to the company or induce the Company to use any\nconfidential or proprietary information or material belonging to any previous employer or others.\n6\n \n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n5. No Employment Contract.\nThe Employee understands that this Agreement does not constitute a contract of employment and does not imply that his/her\nemployment will continue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation\nafter the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any\nsubsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be resigned at the\ntime of such transfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the company and\nare considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition\nto such other remedies which may be available, shall be entitled to specific performance and other injunctive relief, and employee waives the\nclaim or defense that the Company has an adequate remedy at law. Employee shall not, in any action or proceeding to enforce any of the\nprovisions of this Agreement, assert the claim or defense that such an adequate remedy at law exists.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or\nrelating to any provisions of this\n \nAgreement shall be commenced only in a court of the Commonwealth of Massachusetts (or, if appropriate, a federal court located within\nMassachusetts), and the Company and the Employee each consents to the jurisdiction of such a court.\n(h) Employee shall disclose the existence of the terms of this Agreement to any employer or other person that Employee may work\nfor or be engaged by after the termination of his or her employment or engagement at the Company. Employee agrees that the Company may,\nafter notification to Employee, provide a copy of this Agreement to any business or enterprise (I) which Employee may directly or indirectly\nown, manage, operate, finance, join, control or participate in the ownership, management, operation, financing, or control of, or (ii) with which\nthe Employee may be connected with as an officer, director, employee, partner, principal, agent, representative, consultant or other wise, or in\nconnection with which Employee may use or permit Employee’s name to be used. Employee to provide the names and addresses of any such\npersons or entities as the company may from time to time request.\n \nINVENTION AND NON-DISCLOSURE AGREEMENT\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nSigned By: /s/ Kenneth M. Bate\nPrinted Name: Kenneth M. Bate\nDate: 3/23/06\n*Please return signature page only to Human Resources.\n	EX-10.1 2 a09-6413_1ex10d1.htm EX-10.1\nExhibit 10.1\nEffective as of February 23, 2009\nKenneth M. Bate\n33 Middle Street\nConcord, MA 01742\nDear Ken:\nEffective immediately prior to the closing of the Merger (as such term is defined in that certain Agreement and Plan of Merger, dated as\nof\nJanuary 27, 2009, by and among NitroMed, Inc. ("NitroMed"), NTMD Parent Acquisition Corp., NTMD Acquisition Corp., Deerfield Private\nDesign Fund, L.P., Deerfield Private Design International, L.P., Deerfield Special Situations Fund, L.P. and Deerfield Special Situations Fund\nInternational Limited), unless you are earlier terminated for cause, you will be terminated without cause as NitroMed's President, Chief Executive\nOfficer and Interim Chief Financial Officer. This agreement (the "Agreement") sets forth the terms pursuant to which you will be terminated\nwithout cause immediately prior to closing of such Merger; the time of such closing is referred to herein as the "Effective Time" and the date of\nsuch closing is referred to herein as the "Effective Date."\n1. Separation Benefits. Reference is hereby made to that certain Retention Agreement, dated as of January 23, 2007, between you and\nNitroMed, as amended by that certain letter agreement dated as of December 29, 2008, which is attached to this Agreement as Exhibit A and is\nincorporated herein (the "Change in Control Agreement"). In connection with the termination without cause of your employment immediately\nprior to the Effective Time, NitroMed is required to provide you with the benefits set forth in the Change in Control Agreement, including\nwithout limitation the benefits set forth in Section 4.2 thereof.\n2. Other Agreements. You hereby reaffirm your obligations set forth in the NitroMed Inventions and Non-Disclosure Agreement\npreviously executed between NitroMed and you (attached hereto as Exhibit B and incorporated herein by reference). You further agree to abide\nby any and all common law and/or statutory obligations relating to the protection and non-disclosure of NitroMed's trade secrets and/or\nconfidential and proprietary documents and information.\n3. Release. You hereby acknowledge and agree that by signing this Agreement and accepting the economic benefits set forth in\nparagraph 1 above, you are waiving your right to assert, and releasing NitroMed from, any form of legal claim against NitroMed of any kind\nwhatsoever from the beginning of time through and including the Effective Date. Your waiver and release is intended to bar any form of legal\nclaim, charge, complaint or any other form of action (jointly referred to as "Claims") against NitroMed seeking any form of relief including,\nwithout limitation, equitable relief (whether declaratory, injunctive or otherwise), the recovery of any damages or any other form of monetary\nrecovery\nwhatsoever (including, without limitation, back pay, front pay, compensatory damages, emotional distress damages, punitive damages, attorneys'\nfees and any other costs) against NitroMed up through and including the Effective Date. You understand that there could be unknown or\nunanticipated Claims resulting from your employment with NitroMed and the termination thereof and agree that such Claims are intended to be,\nand are, included in this waiver and release.\n4. Miscellaneous. This Agreement does not confer any additional benefits upon you that you are not otherwise already entitled to\nreceive pursuant to existing agreements between you and NitroMed, and the benefits set forth in paragraph 2 of this Agreement reflect all of the\nseverance benefits that you are entitled to receive upon termination of your employment at the Effective Time. No variations or modifications\nhereof\nshall\nbe\ndeemed\nvalid\nunless\nreduced\nto\nwriting\nand\nsigned\nby\nNitroMed\nand\nyou.\nThis\nAgreement\nshall\nbe\ndeemed\nto\nhave\nbeen\nmade\nin\nthe Commonwealth of Massachusetts and shall take effect as an instrument under seal within the Commonwealth of Massachusetts. The validity,\ninterpretation and performance of this Agreement, and any and all other matters relating to your employment and separation of employment from\nNitroMed, shall be governed by, and construed in accordance with, the internal laws of the Commonwealth of Massachusetts, without giving\neffect to conflict of law principles. Both parties agree that any action, demand, claim or counterclaim relating to (i) your employment and\nseparation of your employment, and (ii) the terms and provisions of this Agreement or to its breach, shall be commenced in the Commonwealth\nof Massachusetts in a court of competent jurisdiction. Both parties further agree that any such action, demand, claim or counterclaim shall be\ntried by a judge alone, and both parties hereby waive and forever renounce the right to a trial before a civil jury. The provisions of this\nAgreement are severable, and if for any reason any part hereof shall be found to be unenforceable, the remaining provisions shall be enforced\nin\nfull. It is NitroMed's desire and intent to make certain that you fully understand the provisions and effects of this Agreement. To that end, you\nhave been encouraged and given an opportunity to consult with legal counsel. By executing this Agreement, you are acknowledging that you\nhave been afforded sufficient time to understand the provisions and effects of this Agreement and to consult with legal counsel, that your\nagreements and obligations under this Agreement are made voluntarily, knowingly and without duress and that neither NitroMed nor its agents\nor\nrepresentatives have made any representations inconsistent with the provisions of this Agreement.\n2\nIf the foregoing correctly sets forth our arrangement, please sign, date and return the enclosed copy of this Agreement to me.\nSincerely,\nNITROMED, INC.\n/s/ Mark Leschly\nMark Leschly\nChairman, Compensation Committee\nSigned and Agreed To:\n/s/ Kenneth M. Bate\nName: Kenneth M. Bate\n3\nExhibit A\nFor a copy of the Retention Agreement, dated as of January 23, 2007, between Kenneth M. Bate and NitroMed, Inc., please see Exhibit 10.2 to\nNitroMed, Inc.'s Current Report on Form 8-K filed with the Securities and Exchange Commission on January 25, 2007.\nFor a copy of the letter amendment to the Retention Agreement, dated as of December 29, 2008, between Kenneth M. Bate and NitroMed, Inc.,\nplease see Exhibit 10.2 to NitroMed, Inc.'s Current Report on Form 8-K filed with the Securities and Exchange Commission on December 31,\n2008.\n4\nExhibit B\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement is made between NitroMed, Inc., a Delaware corporation (hereinafter referred to collectively with its subsidiaries as the\n"Company"), and Kenneth M. Bate ("Employee").\nIn consideration of the employment of the continued employment of the Employee by the Company, the Company and the Employee\nagree as follows:\n1. Proprietary. Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, Secret or confidential nature concerning the\nCompany's business, business relationships or financial affairs (collectively, "Proprietary Information") is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, presses, methods, techniques,\nformulas, compositions compounds, projects, developments, plans, research data, clinical data, financia data, personnel data, computer\nprograms, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will\nnot disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other\nthan in the performance of his/her duties as an employee of the Company) without written approval by an officer of the company, either during or\nafter his/her employment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the\nEmployee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks,\nprogram listings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee\nor others, which shall come into his/her custody or possession, shall be and are the exclusive property of the company to be used by the\nEmployee only in the performance of his/her duties for the company. All such materials or copies thereof and all tangible property of the\ncompany in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (I) a request by the Company, or\n(ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such\ntangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in\nparagraphs (a) and (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to\nsuch types of information, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who\nmay have disclosed or entrusted the same to the company or to the Employee.\n5\n2. Developments.\n(a) Inventions, improvements, discoveries, methods, developments, software, and works of authorship, whether patentable or not,\nwhich are created, made, conceived or reduced to practice by him/her or under his/her direction or jointly with others during his/her employment\nby the Company, whether or not during normal working hours or on the premises of the Company (all of which are collectively referred to in this\nAgreement as "Developments".\n(b) The Employee agrees to assign and does hereby assign to the Company (or) any person or entity designated by the Company)\nall his/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the company and which are made and conceived by the Employee not during normal working hours, not on the Company's\npremises and not using the Company's tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain\nclasses of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the\nCompany agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with\nrespect to the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States\nand foreign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interest in any development. The Employee further agrees that if the Company is unable,\nafter reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to\nexecute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints\neach executive officer of the Company as his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take any and\nall\nactions\nas\nthe\nCompany\nmay\ndeem\nnecessary\nor\ndesirable\nin\norder\nto\nprotect\nits\nrights\nand\ninterests\nin\nany\nDevelopment,\nunder\nthe\nconditions\ndescribed in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by\nthe\nterms\nof\nany\nagreement\nwith\nany\nprevious\nemployer\nor\nother\nparty\nto\nrefrain\nfrom\nusing\nor\ndisclosing\nany\ntrade\nsecret\nor\nconfidential\nor\nproprietary information in the course of his/her employment with the Company or refrain from competing, directly or indirectly, with the\nbusiness of such previous employer or any other party. The Employee further represents that his/her performance of all the terms of this\nAgreement\nwand\nas\nan\nemployee\nof\nthe\nCompany\ndoes\nnot\nand\nwill\nnot\nbreach\nany\nother\nagreement\nto\nwhich\nthe\nEmployee\nis\na\nparty\nincluding\nbut not limited to any agreement to keep in confidence proprietary information, knowledge or data acquired by the Employee in confidence or in\ntrust prior to his/her employment with the Company, and the Employee will not disclose to the company or induce the Company to use any\nconfidentia or proprietary information or material belonging to any previous employer or others.\n6\n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n5.\nNo Employment Contract.\nThe Employee understands that this Agreement does not constitute a contract of employment and does not imply that his/her\nemployment will continue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation\nafter the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee's heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any\nsubsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be resigned at the\ntime of such transfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the company and\nare considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition\nto such other remedies which may be available, shall be entitled to specific performance and other injunctive relief, and employee waives the\nclaim or defense that the Company has an adequate remedy at law. Employee shall not, in any action or proceeding to enforce any of the\nprovisions of this Agreement, assert the claim or defense that such an adequate remedy at law exists.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or\nrelating to any provisions of this\n7\nAgreement shall be commenced only in a court of the Commonwealth of Massachusetts (or, if appropriate, a federal court located within\nMassachusetts), and the Company and the Employee each consents to the jurisdiction of such a court.\n(h) Employee shall disclose the existence of the terms of this Agreement to any employer or other person that Employee may work\nfor or be engaged by after the termination of his or her employment or engagement at the Company. Employee agrees that the Company may,\nafter\nnotification to Employee, provide a copy of this Agreement to any business or enterprise (I) which Employee may directly or indirectly\nown, manage, operate, finance, join, control or participate in the ownership, management, operation, financing, or control of, or (ii) with which\nthe Employee may be connected with as an officer, director, employee, partner, principal, agent, representative, consultant or other wise, or\nin\nconnection with which Employee may use or permit Employee's name to be used. Employee to provide the names and addresses of any such\npersons or entities as the company may from time to time request.\n8\nINVENTION AND NON-DISCLOSURE AGREEMENT\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nSigned By:\n/s/ Kenneth M. Bate\nPrinted Name:\nKenneth M. Bate\nDate:\n3/23/06\n*Please return signature page only to Human Resources.\n9	EX-10.1 2 a09-6413_1ex10d1.htm EX-10.1\nExhibit 10.1\nEffective as of February 23, 2009\nKenneth M. Bate\n33 Middle Street\nConcord, MA 01742\nDear Ken:\nEffective immediately prior to the closing of the Merger (as such term is defined in that certain Agreement and Plan of Merger, dated as\nof January 27, 2009, by and among NitroMed, Inc. (“NitroMed”), NTMD Parent Acquisition Corp., NTMD Acquisition Corp., Deerfield Private\nDesign Fund, L.P., Deerfield Private Design International, L.P., Deerfield Special Situations Fund, L.P. and Deerfield Special Situations Fund\nInternational Limited), unless you are earlier terminated for cause, you will be terminated without cause as NitroMed’s President, Chief Executive\nOfficer and Interim Chief Financial Officer. This agreement (the “Agreement”) sets forth the terms pursuant to which you will be terminated\nwithout cause immediately prior to closing of such Merger; the time of such closing is referred to herein as the “Effective Time” and the date of\nsuch closing is referred to herein as the “Effective Date.”\n1. Separation Benefits. Reference is hereby made to that certain Retention Agreement, dated as of January 23, 2007, between you and\nNitroMed, as amended by that certain letter agreement dated as of December 29, 2008, which is attached to this Agreement as Exhibit A and is\nincorporated herein (the “Change in Control Agreement”). In connection with the termination without cause of your employment immediately\nprior to the Effective Time, NitroMed is required to provide you with the benefits set forth in the Change in Control Agreement, including\nwithout limitation the benefits set forth in Section 4.2 thereof.\n2. Other Agreements. You hereby reaffirm your obligations set forth in the NitroMed Inventions and Non-Disclosure Agreement\npreviously executed between NitroMed and you (attached hereto as Exhibit B and incorporated herein by reference). You further agree to abide\nby any and all common law and/or statutory obligations relating to the protection and non-disclosure of NitroMed’s trade secrets and/or\nconfidential and proprietary documents and information.\n3. Release. You hereby acknowledge and agree that by signing this Agreement and accepting the economic benefits set forth in\nparagraph 1 above, you are waiving your right to assert, and releasing NitroMed from, any form of legal claim against NitroMed of any kind\nwhatsoever from the beginning of time through and including the Effective Date. Your waiver and release is intended to bar any form of legal\nclaim, charge, complaint or any other form of action (jointly referred to as “Claims”) against NitroMed seeking any form of relief including,\nwithout limitation, equitable relief (whether declaratory, injunctive or otherwise), the recovery of any damages or any other form of monetary\nrecovery\nwhatsoever (including, without limitation, back pay, front pay, compensatory damages, emotional distress damages, punitive damages, attorneys’\nfees and any other costs) against NitroMed up through and including the Effective Date. You understand that there could be unknown or\nunanticipated Claims resulting from your employment with NitroMed and the termination thereof and agree that such Claims are intended to be,\nand are, included in this waiver and release.\n4. Miscellaneous. This Agreement does not confer any additional benefits upon you that you are not otherwise already entitled to\nreceive pursuant to existing agreements between you and NitroMed, and the benefits set forth in paragraph 2 of this Agreement reflect all of the\nseverance benefits that you are entitled to receive upon termination of your employment at the Effective Time. No variations or modifications\nhereof shall be deemed valid unless reduced to writing and signed by NitroMed and you. This Agreement shall be deemed to have been made in\nthe Commonwealth of Massachusetts and shall take effect as an instrument under seal within the Commonwealth of Massachusetts. The validity,\ninterpretation and performance of this Agreement, and any and all other matters relating to your employment and separation of employment from\nNitroMed, shall be governed by, and construed in accordance with, the internal laws of the Commonwealth of Massachusetts, without giving\neffect to conflict of law principles. Both parties agree that any action, demand, claim or counterclaim relating to (i) your employment and\nseparation of your employment, and (ii) the terms and provisions of this Agreement or to its breach, shall be commenced in the Commonwealth\nof Massachusetts in a court of competent jurisdiction. Both parties further agree that any such action, demand, claim or counterclaim shall be\ntried by a judge alone, and both parties hereby waive and forever renounce the right to a trial before a civil jury. The provisions of this\nAgreement are severable, and if for any reason any part hereof shall be found to be unenforceable, the remaining provisions shall be enforced in\nfull. It is NitroMed’s desire and intent to make certain that you fully understand the provisions and effects of this Agreement. To that end, you\nhave been encouraged and given an opportunity to consult with legal counsel. By executing this Agreement, you are acknowledging that you\nhave been afforded sufficient time to understand the provisions and effects of this Agreement and to consult with legal counsel, that your\nagreements and obligations under this Agreement are made voluntarily, knowingly and without duress and that neither NitroMed nor its agents or\nrepresentatives have made any representations inconsistent with the provisions of this Agreement.\n2\nIf the foregoing correctly sets forth our arrangement, please sign, date and return the enclosed copy of this Agreement to me.\nSincerely,\nNITROMED, INC.\n/s/ Mark Leschly\nMark Leschly\nChairman, Compensation Committee\nSigned and Agreed To:\n/s/ Kenneth M. Bate\nName: Kenneth M. Bate\n3\nExhibit A\nFor a copy of the Retention Agreement, dated as of January 23, 2007, between Kenneth M. Bate and NitroMed, Inc., please see Exhibit 10.2 to\nNitroMed, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on January 25, 2007.\nFor a copy of the letter amendment to the Retention Agreement, dated as of December 29, 2008, between Kenneth M. Bate and NitroMed, Inc.,\nplease see Exhibit 10.2 to NitroMed, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on December 31,\n2008.\n4\nExhibit B\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement is made between NitroMed, Inc., a Delaware corporation (hereinafter referred to collectively with its subsidiaries as the\n“Company”), and Kenneth M. Bate (“Employee”).\nIn consideration of the employment of the continued employment of the Employee by the Company, the Company and the Employee\nagree as follows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, Secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, presses, methods, techniques,\nformulas, compositions compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer\nprograms, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will\nnot disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other\nthan in the performance of his/her duties as an employee of the Company) without written approval by an officer of the company, either during or\nafter his/her employment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the\nEmployee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks,\nprogram listings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee\nor others, which shall come into his/her custody or possession, shall be and are the exclusive property of the company to be used by the\nEmployee only in the performance of his/her duties for the company. All such materials or copies thereof and all tangible property of the\ncompany in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (I) a request by the Company, or\n(ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such\ntangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in\nparagraphs (a) and (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to\nsuch types of information, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who\nmay have disclosed or entrusted the same to the company or to the Employee.\n5\n2. Developments.\n(a) Inventions, improvements, discoveries, methods, developments, software, and works of authorship, whether patentable or not,\nwhich are created, made, conceived or reduced to practice by him/her or under his/her direction or jointly with others during his/her employment\nby the Company, whether or not during normal working hours or on the premises of the Company (all of which are collectively referred to in this\nAgreement as “Developments”.\n(b) The Employee agrees to assign and does hereby assign to the Company (or) any person or entity designated by the Company)\nall his/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the company and which are made and conceived by the Employee not during normal working hours, not on the Company’s\npremises and not using the Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain\nclasses of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the\nCompany agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with\nrespect to the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States\nand foreign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interest in any development. The Employee further agrees that if the Company is unable,\nafter reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to\nexecute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints\neach executive officer of the Company as his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take any and all\nactions as the Company may deem necessary or desirable in order to protect its rights and interests in any Development, under the conditions\ndescribed in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by\nthe terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or\nproprietary information in the course of his/her employment with the Company or refrain from competing, directly or indirectly, with the\nbusiness of such previous employer or any other party. The Employee further represents that his/her performance of all the terms of this\nAgreement wand as an employee of the Company does not and will not breach any other agreement to which the Employee is a party including\nbut not limited to any agreement to keep in confidence proprietary information, knowledge or data acquired by the Employee in confidence or in\ntrust prior to his/her employment with the Company, and the Employee will not disclose to the company or induce the Company to use any\nconfidential or proprietary information or material belonging to any previous employer or others.\n6\n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n5. No Employment Contract.\nThe Employee understands that this Agreement does not constitute a contract of employment and does not imply that his/her\nemployment will continue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation\nafter the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any\nsubsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be resigned at the\ntime of such transfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the company and\nare considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition\nto such other remedies which may be available, shall be entitled to specific performance and other injunctive relief, and employee waives the\nclaim or defense that the Company has an adequate remedy at law. Employee shall not, in any action or proceeding to enforce any of the\nprovisions of this Agreement, assert the claim or defense that such an adequate remedy at law exists.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or\nrelating to any provisions of this\n7\nAgreement shall be commenced only in a court of the Commonwealth of Massachusetts (or, if appropriate, a federal court located within\nMassachusetts), and the Company and the Employee each consents to the jurisdiction of such a court.\n(h) Employee shall disclose the existence of the terms of this Agreement to any employer or other person that Employee may work\nfor or be engaged by after the termination of his or her employment or engagement at the Company. Employee agrees that the Company may,\nafter notification to Employee, provide a copy of this Agreement to any business or enterprise (I) which Employee may directly or indirectly\nown, manage, operate, finance, join, control or participate in the ownership, management, operation, financing, or control of, or (ii) with which\nthe Employee may be connected with as an officer, director, employee, partner, principal, agent, representative, consultant or other wise, or in\nconnection with which Employee may use or permit Employee’s name to be used. Employee to provide the names and addresses of any such\npersons or entities as the company may from time to time request.\n8\nINVENTION AND NON-DISCLOSURE AGREEMENT\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nSigned By:\n/s/ Kenneth M. Bate\nPrinted Name: Kenneth M. Bate\nDate:\n3/23/06\n*Please return signature page only to Human Resources.\n9
+11d0a5b1f6e460c7033d57661026d00c.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 8 d901048dex99d3.htm CONFIDENTIALITY AGREEMENT BY AND BETWEEN AUSPEX AND\nTEVA, DATED MARCH 1, 2015\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of March 1, 2015 between AUSPEX\nPHARMACEUTICALS, located at 3333 North Torrey Pines Court, Suite 400, La Jolla, CA 92037 (“Company”), and TEVA\nPHARMACEUTICAL INDUSTRIES, LTD., with a principal place of business at 5 Basel Street, Petach Tikva 4951033, Israel (“TEVA”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving Company and Teva (referred to\ncollectively as the “Parties” and individually as a “Party”), each Party has either requested or may request access to certain non-public\ninformation regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in\nthis Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the\n“Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various\nrelated matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 4 below, neither the Recipient nor any of the\nRecipient’s Representatives (as defined in Section 14 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider ’s Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider ‘s Confidential Information to any other Person (as defined in Section 14 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential\nInformation.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A or any investment banks or outside\nlegal counsel retained by the Provider in connection with the possible transaction (the “Provider Contact Person”). Neither the Recipient nor any\nof the Recipient ‘s Representatives will contact or otherwise communicate with any other Representative or employee of the Provider in\nconnection with a possible transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. The Provider Contact Person will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of the\nProvider ’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously\nfurnished. Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the\naccuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any\nliability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United\nStates federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive\nwritten agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the\nParties (a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping\nthe Recipient evaluate or negotiate a possible negotiated transaction between the Parties, and (B) has been provided with a copy of\nthis Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at\nleast as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If prior to providing certain Confidential Information to the Recipient, the Provider delivers to the Recipient a written notice\nstating that such Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient, then,\nnotwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the\ndisclosure of any of such Confidential Information to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other\nvalid legal process to disclose any of the Provider ’s Confidential Information to any Person, then the Recipient will promptly provide the\nProvider with written notice of the applicable law, regulation or\n2\nprocess so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate\nfully with the Provider and the Provider’s Representatives in any attempt by the Provider to obtain any such protective order or other\nremedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any\nrequirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential\nInformation to the extent legally required.\n5. Return of Confidential Information. Upon the Provider ’s request, the Recipient and the Recipient’s Representatives will promptly\ndeliver to the Provider any of the Provider ’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of\nthe Recipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any written materials containing Confidential\nInformation of the Provider, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their\ndestruction provided further, that the Recipient may retain one copy of such Confidential Information for archival purposes. Notwithstanding the\ndelivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant to this Section 5, the Recipient\nand its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement.\n6. Standstill Provision. During the period commencing today and ending on the first anniversary of the date of this Agreement, or if the\nCompany enters into any confidentiality agreement with another party within the next 45 days with a standstill period of less than 12 months then\nending on the earlier standstill ending date specified in such confidentiality agreement (the “Standstill Period”), neither Teva nor any of Teva’s\nRepresentatives on behalf of Teva will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Company or any\nsecurities (including derivatives thereof) of any subsidiary or other affiliate of Company, (ii) any acquisition of any assets of Company or\nany assets of any subsidiary, division or other affiliate of Company, (iii) any tender offer, exchange offer, merger, business combination,\nrecapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Company or any subsidiary or other affiliate\nof Company or involving any securities or assets of Company or any securities or assets of any subsidiary, division or other affiliate of\nCompany, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents with respect to any securities of Company;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934, as amended, and the rules promulgated\nthereunder) with respect to the beneficial ownership of any securities of Company or any subsidiary or division of Company;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Company;\n3\n(d) take any action that might require Company to make a public announcement regarding any of the types of matters set forth in\nclause “(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”,\n“(c)” or “(d)” of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of\nthis sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Company or any of Company’s Representatives amend, waive or consider the amendment or waiver of\nany provision set forth in this Section 6.\nNothing in this Agreement will prevent Teva or its Representatives from communicating with the Chief Executive Officer of Company to make a\nproposal for or to negotiate with Company in respect of a tender or exchange offer, merger or other business combination, or any other of the\ntransactions described in Section 6(a)(i) involving Company and Teva so long as such communication is made confidentially and does not\nrequire public disclosure. Following the end of the Standstill Period, nothing in this Agreement (including the prohibitions on use and disclosure\nset forth in Sections 1 and 4 hereof) shall, directly or indirectly, prevent or otherwise limit Teva and its Representatives from taking any actions\nreferred to in clauses (a)-(h) of this Section 6 or related thereto, and in each case without notice to or consultation with Company. The expiration\nof the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement. Furthermore, if at any time prior to\nthe end of the Standstill Period (i) a third party commences a tender offer for at least fifty percent (50%) of Company’s outstanding common\nstock that the Board of Directors of Company recommends, or (ii) a third party enters into an agreement with Company contemplating the\nacquisition (by way of merger, tender offer, or otherwise) of at least fifty percent (50%) of the outstanding common stock of Company, the\nrestrictions set forth in this Section 6 shall immediately terminate and cease to be of any further force or effect.\n7. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter\ninto any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it\ndeems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such\nprocess without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s\nRepresentatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any\ntime. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after\nthe date of this Agreement:\n4\n(i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested\nparty; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or\nrelating to any transaction or proposed transaction involving the other Party.\n8. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or\nfuture exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived\nor amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the\nparticular provision or provisions being waived or amended.\n9. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach.\nAccordingly, each Party will also be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach\nor threatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above\nwill not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at\nlaw or in equity to the Parties. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either\nParty or any of its Representatives has breached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party’s\nRepresentatives, the reasonable legal fees incurred by the other Party and the other Party’s Representatives in connection with such litigation\n(including any appeal relating thereto).\n10. Trading in Securities. The Recipient acknowledges and agrees that it is aware (and that the Recipient’s Representatives are aware or\nwill be advised by the Recipient) that Confidential Information being furnished by the Provider may contain material, non-public information\nregarding the Provider and that the United States securities laws prohibit any Person who has such material, non-public information from\npurchasing or selling securities of the Provider on the basis of such information or from communicating such information to any Person under\ncircumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of\neach Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in\naccordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and\nunconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware purposes of any action,\nsuit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S.\nregistered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any\nsuch action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any\naction, suit or proceeding\n5\narising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out\nof or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient\nforum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only\nthe following:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget,\nforecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other\naffiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has at\nany time been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative\nof the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or\nhas been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and\nthe proposed terms of any such transaction. However, the Provider ’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure\nof any of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or on behalf of the Provider or any of the Provider ’s Representatives, provided that the source of\nsuch information was not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to\nthe Provider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non- confidential basis from a source other than the Provider\nor any of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or\nother obligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n6\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential\nInformation and without reference to or use of Confidential Information.\n13. Co-Bidders and Financing Sources. Without limiting anything in this Agreement, Teva agrees that it will not directly or indirectly\n(i) approach or team, co-venture, club or otherwise partner with any person or firm that may be interested in participating in a transaction with\nCompany as a principal, co-investor, co- bidder or financing source or (ii) engage in any discussions which might lead to, or enter into, any\nagreement, arrangement or understanding with any such person or firm; provided, however, that subject to the written pre-approval of the\nCompany and subject to Section 14(a) below, Teva may contact and/or utilize pre-approved debt financing sources in connection with the\npotential negotiated transaction between the Parties.\n14. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a\nsubsidiary of such Party, (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of\nany of such Party’s subsidiaries (excluding any affiliated portfolio companies) or (iii) only upon prior written approval of Company, a\npotential debt financing source to be used by Teva in connection with a potential negotiated transaction between the Parties, provided that\nany debt financing source enters into a confidentiality agreement with Teva that include obligations relating to Company ‘s Confidential\nInformation, securities and employees that are at least as restrictive as the obligations in this Agreement (and providing that Company shall\nbe a third party beneficiary thereof).\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation,\npartnership, entity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in\nany other situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the\nProvider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any\npatent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s\nRepresentatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of\nthe Provider.\n7\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and\nthat it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to,\nand shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any\nof such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine.\nAccordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other\napplicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense\ndoctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such\nprivileges or doctrines.\n(g) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(h) This Agreement shall continue in full force and effect for a period of three years from the effective date of this Agreement. This\nAgreement may be terminated by either party at any time upon thirty (30) days written notice to the other party. The termination of this\nAgreement shall not relieve the Recipient of the obligations imposed by Sections 1, 4, 5, 8 through 14 inclusive of this Agreement which\nshall survive any such termination and continue for a period of three years from the date of execution of this Agreement or relieve Teva of\nits obligations under Section 6 of this Agreement. Nothing herein is intended to limit or abridge the protection of trade secrets under\napplicable trade secrets law, and the protection of trade secrets by the Recipient shall be maintained as such until they fall into the public\ndomain.\n(i) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any\nproducts utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or\nregulations.\n(j) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related\nhereto, including legal notices, shall be in the English language only.\n8\n(k) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic\ntransaction or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\nThe parties have caused this Agreement to be executed as of March 1, 2015.\nAUSPEX PHARMACEUTICALS\nTEVA PHARMACEUTICAL INDUSTRIES, LTD.\nBy: /s/ Bharatt Chowrira\nBy:\n/s/ Keren Haruvi\nName: Bharatt Chowrira\nName: Keren Haruvi, VP\nTitle: COO\nTitle:\nHead of Global M&A and Transactional Analytics\nAddress:\n3333 North Torrey Pines Court\nSuite 400\nLa Jolla, CA 92037\nUSA\nContact: President & CEO\nBy:\n/s/ Amir Menis\nName: Amir Menis\nTitle:\nAnalyst, BD\nAddress:\n5 Basel Street\nPetach Tikva 4951033\nIsrael\nContact: Keren Haruvi\n9\nEXHIBIT A\nPROVIDER CONTACT PERSONS\nCOMPANY:\nPratik Shah, President and Chief Executive Officer\nBharatt Chowrira, Chief Operating Officer\nJohn Schmid, Chief Financial Officer\nTEVA:\nKeren Haruvi Snir, SVP, M&A\n10	EX-99.(D)(3) 8 d901048dex99d3.htm CONFIDENTIALITY AGREEMENT BY AND BETWEEN AUSPEX AND\nTEVA, DATED MARCH 1, 2015\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of March 1, 2015 between AUSPEX\nPHARMACEUTICALS, located at 3333 North Torrey Pines Court, Suite 400, La Jolla, CA 92037 (“Company”), and TEVA\nPHARMACEUTICAL INDUSTRIES, LTD., with a principal place of business at 5 Basel Street, Petach Tikva 4951033, Israel (“TEVA™).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving Company and Teva (referred to\ncollectively as the “Parties” and individually as a “Party”), each Party has either requested or may request access to certain non-public\ninformation regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in\nthis Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the\n“Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various\nrelated matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 4 below, neither the Recipient nor any of the\nRecipient’s Representatives (as defined in Section 14 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider ‘s Confidential Information to any other Person (as defined in Section 14 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential\nInformation.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A or any investment banks or outside\nlegal counsel retained by the Provider in connection with the possible transaction (the “Provider Contact Person”). Neither the Recipient nor any\nof the Recipient ‘s Representatives will contact or otherwise communicate with any other Representative or employee of the Provider in\nconnection with a possible transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. The Provider Contact Person will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of the\nProvider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously\nfurnished. Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the\naccuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any\nliability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United\nStates federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive\nwritten agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the\nParties (a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping\nthe Recipient evaluate or negotiate a possible negotiated transaction between the Parties, and (B) has been provided with a copy of\nthis Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at\nleast as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If prior to providing certain Confidential Information to the Recipient, the Provider delivers to the Recipient a written notice\nstating that such Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient, then,\nnotwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the\ndisclosure of any of such Confidential Information to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other\nvalid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the\nProvider with written notice of the applicable law, regulation or\nprocess so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate\nfully with the Provider and the Provider’s Representatives in any attempt by the Provider to obtain any such protective order or other\nremedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any\nrequirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential\nInformation to the extent legally required.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly\ndeliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of\nthe Recipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any written materials containing Confidential\nInformation of the Provider, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their\ndestruction provided further, that the Recipient may retain one copy of such Confidential Information for archival purposes. Notwithstanding the\ndelivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant to this Section 5, the Recipient\nand its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement.\n6. Standstill Provision. During the period commencing today and ending on the first anniversary of the date of this Agreement, or if the\nCompany enters into any confidentiality agreement with another party within the next 45 days with a standstill period of less than 12 months then\nending on the earlier standstill ending date specified in such confidentiality agreement (the “Standstill Period”), neither Teva nor any of Teva’s\nRepresentatives on behalf of Teva will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Company or any\nsecurities (including derivatives thereof) of any subsidiary or other affiliate of Company, (ii) any acquisition of any assets of Company or\nany assets of any subsidiary, division or other affiliate of Company, (iii) any tender offer, exchange offer, merger, business combination,\nrecapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Company or any subsidiary or other affiliate\nof Company or involving any securities or assets of Company or any securities or assets of any subsidiary, division or other affiliate of\nCompany, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents with respect to any securities of Company;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934, as amended, and the rules promulgated\nthereunder) with respect to the beneficial ownership of any securities of Company or any subsidiary or division of Company;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Company;\n3\n(d) take any action that might require Company to make a public announcement regarding any of the types of matters set forth in\nclause “(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”,\n“(c)” or “(d)” of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of\nthis sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Company or any of Company’s Representatives amend, waive or consider the amendment or waiver of\nany provision set forth in this Section 6.\nNothing in this Agreement will prevent Teva or its Representatives from communicating with the Chief Executive Officer of Company to make a\nproposal for or to negotiate with Company in respect of a tender or exchange offer, merger or other business combination, or any other of the\ntransactions described in Section 6(a)(i) involving Company and Teva so long as such communication is made confidentially and does not\nrequire public disclosure. Following the end of the Standstill Period, nothing in this Agreement (including the prohibitions on use and disclosure\nset forth in Sections 1 and 4 hereof) shall, directly or indirectly, prevent or otherwise limit Teva and its Representatives from taking any actions\nreferred to in clauses (a)-(h) of this Section 6 or related thereto, and in each case without notice to or consultation with Company. The expiration\nof the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement. Furthermore, if at any time prior to\nthe end of the Standstill Period (i) a third party commences a tender offer for at least fifty percent (50%) of Company’s outstanding common\nstock that the Board of Directors of Company recommends, or (ii) a third party enters into an agreement with Company contemplating the\nacquisition (by way of merger, tender offer, or otherwise) of at least fifty percent (50%) of the outstanding common stock of Company, the\nrestrictions set forth in this Section 6 shall immediately terminate and cease to be of any further force or effect.\n7. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter\ninto any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it\ndeems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such\nprocess without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s\nRepresentatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any\ntime. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after\nthe date of this Agreement:\n(i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested\nparty; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or\nrelating to any transaction or proposed transaction involving the other Party.\n8. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or\nfuture exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived\nor amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the\nparticular provision or provisions being waived or amended.\n9. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach.\nAccordingly, each Party will also be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach\nor threatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above\nwill not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at\nlaw or in equity to the Parties. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either\nParty or any of its Representatives has breached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party’s\nRepresentatives, the reasonable legal fees incurred by the other Party and the other Party’s Representatives in connection with such litigation\n(including any appeal relating thereto).\n10. Trading in Securities. The Recipient acknowledges and agrees that it is aware (and that the Recipient’s Representatives are aware or\nwill be advised by the Recipient) that Confidential Information being furnished by the Provider may contain material, non-public information\nregarding the Provider and that the United States securities laws prohibit any Person who has such material, non-public information from\npurchasing or selling securities of the Provider on the basis of such information or from communicating such information to any Person under\ncircumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of\neach Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in\naccordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and\nunconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware purposes of any action,\nsuit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S.\nregistered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any\nsuch action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any\naction, suit or proceeding\narising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out\nof or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient\nforum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only\nthe following:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget,\nforecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other\naffiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has at\nany time been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative\nof the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or\nhas been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and\nthe proposed terms of any such transaction. However, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure\nof any of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of\nsuch information was not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to\nthe Provider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non- confidential basis from a source other than the Provider\nor any of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or\nother obligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n6\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential\nInformation and without reference to or use of Confidential Information.\n13. Co-Bidders and Financing Sources. Without limiting anything in this Agreement, Teva agrees that it will not directly or indirectly\n(i) approach or team, co-venture, club or otherwise partner with any person or firm that may be interested in participating in a transaction with\nCompany as a principal, co-investor, co- bidder or financing source or (ii) engage in any discussions which might lead to, or enter into, any\nagreement, arrangement or understanding with any such person or firm; provided, however, that subject to the written pre-approval of the\nCompany and subject to Section 14(a) below, Teva may contact and/or utilize pre-approved debt financing sources in connection with the\npotential negotiated transaction between the Parties.\n14. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a\nsubsidiary of such Party, (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of\nany of such Party’s subsidiaries (excluding any affiliated portfolio companies) or (iii) only upon prior written approval of Company, a\npotential debt financing source to be used by Teva in connection with a potential negotiated transaction between the Parties, provided that\nany debt financing source enters into a confidentiality agreement with Teva that include obligations relating to Company ‘s Confidential\nInformation, securities and employees that are at least as restrictive as the obligations in this Agreement (and providing that Company shall\nbe a third party beneficiary thereof).\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation,\npartnership, entity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in\nany other situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the\nProvider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any\npatent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s\nRepresentatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of\nthe Provider.\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and\nthat it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to,\nand shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any\nof such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine.\nAccordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other\napplicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense\ndoctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such\nprivileges or doctrines.\n(g) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(h) This Agreement shall continue in full force and effect for a period of three years from the effective date of this Agreement. This\nAgreement may be terminated by either party at any time upon thirty (30) days written notice to the other party. The termination of this\nAgreement shall not relieve the Recipient of the obligations imposed by Sections 1, 4, 5, 8 through 14 inclusive of this Agreement which\nshall survive any such termination and continue for a period of three years from the date of execution of this Agreement or relieve Teva of\nits obligations under Section 6 of this Agreement. Nothing herein is intended to limit or abridge the protection of trade secrets under\napplicable trade secrets law, and the protection of trade secrets by the Recipient shall be maintained as such until they fall into the public\ndomain.\n(i) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any\nproducts utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or\nregulations.\n(j) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related\nhereto, including legal notices, shall be in the English language only.\n8\n(k) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transaction or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement. The parties have caused this Agreement to be executed as of March 1, 2015. AUSPEX PHARMACEUTICALS\nBy: /s/ Bharatt Chowrira\nName: Bharatt Chowrira\nTitle: COO\nAddress:\n3333 North Torrey Pines Court\nSuite 400\nLa Jolla, CA 92037\nUSA\nContact: President & CEO\nTEVA PHARMACEUTICAL INDUSTRIES, LTD.\nBy: /s/ Keren Haruvi\nName: Keren Haruvi, VP\nTitle: Head of Global M&A and Transactional Analytics\nBy: /s/ Amir Menis\nName: Amir Menis\nTitle: Analyst, BD\nAddress:\n5 Basel Street\nPetach Tikva 4951033\nIsrael\nContact: Keren Haruvi\nEXHIBIT A\nPROVIDER CONTACT PERSONS\nCOMPANY:\nPratik Shah, President and Chief Executive Officer\nBharatt Chowrira, Chief Operating Officer\nJohn Schmid, Chief Financial Officer\nTEVA:\nKeren Haruvi Snir, SVP, M&A\n10	EX-99.(D)(3) 8 d901048dex99d3.htm CONFIDENTIALITY AGREEMENT BY AND BETWEEN AUSPEX AND\nTEVA, DATED MARCH 1, 2015\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT ("Agreement") is being entered into as of March 1, 2015 between AUSPEX\nPHARMACEUTICALS, located at 3333 North Torrey Pines Court, Suite 400, La Jolla, CA 92037 ("Company"), and TEVA\nPHARMACEUTICAL INDUSTRIES, LTD., with a principal place of business at 5 Basel Street, Petach Tikva 4951033, Israel ("TEVA").\nIn\norder to facilitate the consideration and negotiation of a possible negotiated transaction involving Company and Teva (referred to\ncollectively as the "Parties" and individually as a "Party"), each Party has either requested or may request access to certain non-public\ninformation regarding the other Party and the other Party's subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in\nthis Agreement as the "Provider"; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the\n"Recipient".) This Agreement sets forth the Parties' obligations regarding the use and disclosure of such information and regarding various\nrelated matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 4 below, neither the Recipient nor any of the\nRecipient's Representatives (as defined in Section 14 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider's Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider 's Confidential Information to any other Person (as defined in Section 14 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non\nthe part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense)\ntake\nall\nactions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider's Confidential\nInformation.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider's Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A or any investment banks or outside\nlegal counsel retained by the Provider in connection with the possible transaction (the "Provider Contact Person"). Neither the Recipient nor any\nof the Recipient 's Representatives will contact or otherwise communicate with any other Representative or employee of the Provider in\nconnection with a possible transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. The Provider Contact Person will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of the\nProvider's Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient's Representatives or to supplement or update any Confidential Information of the Provider previously\nfurnished. Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to\nthe\naccuracy or completeness of any of the Provider's Confidential Information, and neither the Provider nor any of its Representatives will have any\nliability to the Recipient or to any of the Recipient's Representatives on any basis (including, without limitation, in contract, tort or under United\nStates federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider's Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive\nwritten agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the\nParties (a "Definitive Agreement") will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient's disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping\nthe Recipient evaluate or negotiate a possible negotiated transaction between the Parties, and (B) has been provided with a copy of\nthis Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at\nleast as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If prior to providing certain Confidential Information to the Recipient, the Provider delivers to the Recipient a written notice\nstating that such Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient, then,\nnotwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the\ndisclosure of any of such Confidential Information to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient's Representatives is required by law or governmental regulation or by subpoena or other\nvalid legal process to disclose any of the Provider's Confidential Information to any Person, then the Recipient will promptly provide the\nProvider with written notice of the applicable law, regulation or\n2\nprocess so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate\nfully with the Provider and the Provider's Representatives in any attempt by the Provider to obtain any such protective order or other\nremedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any\nrequirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential\nInformation to the extent legally required.\n5.\nReturn of Confidential Information. Upon the Provider's request, the Recipient and the Recipient's Representatives will promptly\ndeliver to the Provider any of the Provider's Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of\nthe Recipient's Representatives; provided, however, that, in lieu of delivering to the Provider any written materials containing Confidential\nInformation of the Provider, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their\ndestruction provided further, that the Recipient may retain one copy of such Confidential Information for archival purposes. Notwithstanding the\ndelivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant to this Section 5, the Recipient\nand its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement.\n6.\nStandstill Provision. During the period commencing today and ending on the first anniversary of the date of this Agreement, or if the\nCompany enters into any confidentiality agreement with another party within the next 45 days with a standstill period of less than 12 months then\nending on the earlier standstill ending date specified in such confidentiality agreement (the "Standstill Period"), neither Teva nor any of Teva's\nRepresentatives on behalf of Teva will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Company or any\nsecurities (including derivatives thereof) of any subsidiary or other affiliate of Company, (ii) any acquisition of any assets of Company or\nany assets of any subsidiary, division or other affiliate of Company, (iii) any tender offer, exchange offer, merger, business combination,\nrecapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Company or any subsidiary or other affiliate\nof Company or involving any securities or assets of Company or any securities or assets of any subsidiary, division or other affiliate of\nCompany, or (iv) any "solicitation" of "proxies" (as those terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents with respect to any securities of Company;\n(b) form, join or participate in a "group" (as defined in the Securities Exchange Act of 1934, as amended, and the rules promulgated\nthereunder) with respect to the beneficial ownership of any securities of Company or any subsidiary or division of Company;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Company;\n3\n(d) take any action that might require Company to make a public announcement regarding any of the types of matters set forth\nin\nclause "(a)" of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause "(a)", "(b)",\n"(c)" or "(d)" of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause "(a)", "(b)", "(c)", "(d)" or "(e)" of\nthis sentence;\n(g) enter into any discussions, negotiations arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Company or any of Company's Representatives amend, waive or consider the amendment or waiver of\nany provision set forth in this Section 6.\nNothing in this Agreement will prevent Teva or its Representatives from communicating with the Chief Executive Officer of Company to make a\nproposal for or to negotiate with Company in respect of a tender or exchange offer, merger or other business combination, or any other of the\ntransactions described in Section 6(a)(i) involving Company and Teva SO long as such communication is made confidentially and does\nnot\nrequire public disclosure. Following the end of the Standstill Period, nothing in this Agreement (including the prohibitions on use and disclosure\nset\nforth in Sections 1 and 4 hereof) shall, directly or indirectly, prevent or otherwise limit Teva and its Representatives from taking any actions\nreferred to in clauses (a)-(h) of this Section 6 or related thereto, and in each case without notice to or consultation with Company. The expiration\nof the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement. Furthermore, if at any time prior to\nthe end of the Standstill Period (i) a third party commences a tender offer for at least fifty percent (50%) of Company's outstanding common\nstock that the Board of Directors of Company recommends, or (ii) a third party enters into an agreement with Company contemplating the\nacquisition (by way of merger, tender offer, or otherwise) of at least fifty percent (50%) of the outstanding common stock of Company, the\nrestrictions set forth in this Section 6 shall immediately terminate and cease to be of any further force or effect.\n7. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter\ninto any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process\nit\ndeems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such\nprocess without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party's\nRepresentatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any\ntime. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after\nthe date of this Agreement:\n4\n(i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested\nparty; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party's Representatives arising out of\nor\nrelating to any transaction or proposed transaction involving the other Party.\n8. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or\nfuture exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived\nor amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the\nparticular provision or provisions being waived or amended.\n9. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party's Representatives and that the other Party would suffer irreparable harm as a result of any such breach.\nAccordingly, each Party will also be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach\nor threatened breach of this Agreement by the other Party or any of the other Party's Representatives. The equitable remedies referred to above\nwill not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available\nat\nlaw or in equity to the Parties. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either\nParty or any of its Representatives has breached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party's\nRepresentatives, the reasonable legal fees incurred by the other Party and the other Party's Representatives in connection with such litigation\n(including any appeal relating thereto).\n10. Trading in Securities. The Recipient acknowledges and agrees that it is aware (and that the Recipient's Representatives are aware or\nwill be advised by the Recipient) that Confidential Information being furnished by the Provider may contain material, non-public information\nregarding the Provider and that the United States securities laws prohibit any Person who has such material, non-public information from\npurchasing or selling securities of the Provider on the basis of such information or from communicating such information to any Person under\ncircumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of\neach Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in\naccordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and\nunconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware purposes of any action,\nsuit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S.\nregistered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any\nsuch action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any\naction, suit or proceeding\n5\narising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out\nof or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient\nforum.\n12. Confidential Information. For purposes of this Agreement, the Provider's "Confidential Information" will be deemed to include only\nthe following:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget,\nforecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other\naffiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has\nat\nany time been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative\nof the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or\nhas been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause "(a)" of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause "(a)" of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and\nthe proposed terms of any such transaction. However, the Provider's "Confidential Information" will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure\nof any of such information by the Recipient or by any of the Recipient's Representatives;\n(ii) any information that was in the Recipient's possession prior to the time it was first made available to the Recipient or any of\nthe Recipient's Representatives by or on behalf of the Provider or any of the Provider's Representatives, provided that the source of\nsuch information was not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality\nto\nthe Provider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non- confidential basis from a source other than the Provider\nor any of the Provider's Representatives, provided that such source is not known to the Recipient to be bound by any contractual or\nother obligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n6\n(iv)\nany information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential\nInformation and without reference to or use of Confidential Information.\n13. Co-Bidders and Financing Sources. Without limiting anything in this Agreement, Teva agrees that it will not directly or indirectly\n(i) approach or team, co-venture, club or otherwise partner with any person or firm that may be interested in participating in a transaction with\nCompany as a principal, co-investor, CO- bidder or financing source or (ii) engage in any discussions which might lead to, or enter into, any\nagreement, arrangement or understanding with any such person or firm; provided, however, that subject to the written pre-approva of the\nCompany and subject to Section 14(a) below, Teva may contact and/or utilize pre-approved debt financing sources in connection with the\npotential negotiated transaction between the Parties.\n14. Miscellaneous.\n(a) For purposes of this Agreement, a Party's "Representatives" will be deemed to include each Person that is or becomes (i) a\nsubsidiary of such Party, (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of\nany of such Party's subsidiaries (excluding any affiliated portfolio companies) or (iii) only upon prior written approval of Company, a\npotential debt financing source to be used by Teva in connection with a potential negotiated transaction between the Parties, provided that\nany debt financing source enters into a confidentiality agreement with Teva that include obligations relating to Company 's Confidential\nInformation, securities and employees that are at least as restrictive as the obligations in this Agreement (and providing that Company shall\nbe a third party beneficiary thereof).\n(b) The term "Person," as used in this Agreement, will be broadly interpreted to include any individual and any corporation,\npartnership, entity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in\nany other situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient's Representatives, the\nProvider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any\npatent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient's\nRepresentatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of\nthe Provider.\n7\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and\nthat it is the Parties' mutual desire, intention and understanding that the sharing of such materials and other information is not intended to,\nand shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any\nof such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine.\nAccordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other\napplicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense\ndoctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such\nprivileges or doctrines.\n(g) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(h) This Agreement shall continue in full force and effect for a period of three years from the effective date of this Agreement This\nAgreement may be terminated by either party at any time upon thirty (30) days written notice to the other party. The termination of this\nAgreement shall not relieve the Recipient of the obligations imposed by Sections 1, 4, 5, 8 through 14 inclusive of this Agreement\nwhich\nshall survive any such termination and continue for a period of three years from the date of execution of this Agreement or relieve Teva of\nits obligations under Section 6 of this Agreement Nothing herein is intended to limit or abridge the protection of trade secrets under\napplicable trade secrets law, and the protection of trade secrets by the Recipient shall be maintained as such until they fall into the public\ndomain.\n(i) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any\nproducts utilizing such data to countries outside the United States, which export may be in violation of the United States export laws\nor\nregulations.\n(j) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related\nhereto, including legal notices, shall be in the English language only.\n8\n(k) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic\ntransaction or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\nThe parties have caused this Agreement to be executed as of March 1, 2015.\nAUSPEX PHARMACEUTICALS\nTEVA PHARMACEUTICAL INDUSTRIES, LTD.\nBy:\n/s/ Bharatt Chowrira\nBy:\n/s/ Keren Haruvi\nName: Bharatt Chowrira\nName: Keren Haruvi, VP\nTitle: COO\nTitle:\nHead of Global M&A and Transactional Analytics\nAddress:\n3333 North Torrey Pines Court\nSuite 400\nLa Jolla, CA 92037\nUSA\nContact: President & CEO\nBy:\n/s/ Amir Menis\nName:\nAmir Menis\nTitle:\nAnalyst, BD\nAddress:\n5 Basel Street\nPetach Tikva 4951033\nIsrael\nContact: Keren Haruvi\n9\nEXHIBIT A\nPROVIDER CONTACT PERSONS\nCOMPANY:\nPratik Shah, President and Chief Executive Officer\nBharatt Chowrira, Chief Operating Officer\nJohn Schmid, Chief Financial Officer\nTEVA:\nKeren Haruvi Snir, SVP, M&A\n10	EX-99.(D)(3) 8 d901048dex99d3.htm CONFIDENTIALITY AGREEMENT BY AND BETWEEN AUSPEX AND\nTEVA, DATED MARCH 1, 2015\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of March 1, 2015 between AUSPEX\nPHARMACEUTICALS, located at 3333 North Torrey Pines Court, Suite 400, La Jolla, CA 92037 (“Company”), and TEVA\nPHARMACEUTICAL INDUSTRIES, LTD., with a principal place of business at 5 Basel Street, Petach Tikva 4951033, Israel (“TEVA”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving Company and Teva (referred to\ncollectively as the “Parties” and individually as a “Party”), each Party has either requested or may request access to certain non-public\ninformation regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in\nthis Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the\n“Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various\nrelated matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 4 below, neither the Recipient nor any of the\nRecipient’s Representatives (as defined in Section 14 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider ’s Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider ‘s Confidential Information to any other Person (as defined in Section 14 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential\nInformation.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A or any investment banks or outside\nlegal counsel retained by the Provider in connection with the possible transaction (the “Provider Contact Person”). Neither the Recipient nor any\nof the Recipient ‘s Representatives will contact or otherwise communicate with any other Representative or employee of the Provider in\nconnection with a possible transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. The Provider Contact Person will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of the\nProvider ’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously\nfurnished. Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the\naccuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any\nliability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United\nStates federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive\nwritten agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the\nParties (a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping\nthe Recipient evaluate or negotiate a possible negotiated transaction between the Parties, and (B) has been provided with a copy of\nthis Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at\nleast as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If prior to providing certain Confidential Information to the Recipient, the Provider delivers to the Recipient a written notice\nstating that such Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient, then,\nnotwithstanding anything to the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the\ndisclosure of any of such Confidential Information to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other\nvalid legal process to disclose any of the Provider ’s Confidential Information to any Person, then the Recipient will promptly provide the\nProvider with written notice of the applicable law, regulation or\n2\nprocess so that the Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate\nfully with the Provider and the Provider’s Representatives in any attempt by the Provider to obtain any such protective order or other\nremedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any\nrequirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential\nInformation to the extent legally required.\n5. Return of Confidential Information. Upon the Provider ’s request, the Recipient and the Recipient’s Representatives will promptly\ndeliver to the Provider any of the Provider ’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of\nthe Recipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any written materials containing Confidential\nInformation of the Provider, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their\ndestruction provided further, that the Recipient may retain one copy of such Confidential Information for archival purposes. Notwithstanding the\ndelivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant to this Section 5, the Recipient\nand its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement.\n6. Standstill Provision. During the period commencing today and ending on the first anniversary of the date of this Agreement, or if the\nCompany enters into any confidentiality agreement with another party within the next 45 days with a standstill period of less than 12 months then\nending on the earlier standstill ending date specified in such confidentiality agreement (the “Standstill Period”), neither Teva nor any of Teva’s\nRepresentatives on behalf of Teva will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Company or any\nsecurities (including derivatives thereof) of any subsidiary or other affiliate of Company, (ii) any acquisition of any assets of Company or\nany assets of any subsidiary, division or other affiliate of Company, (iii) any tender offer, exchange offer, merger, business combination,\nrecapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Company or any subsidiary or other affiliate\nof Company or involving any securities or assets of Company or any securities or assets of any subsidiary, division or other affiliate of\nCompany, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents with respect to any securities of Company;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934, as amended, and the rules promulgated\nthereunder) with respect to the beneficial ownership of any securities of Company or any subsidiary or division of Company;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Company;\n3\n(d) take any action that might require Company to make a public announcement regarding any of the types of matters set forth in\nclause “(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”,\n“(c)” or “(d)” of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of\nthis sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Company or any of Company’s Representatives amend, waive or consider the amendment or waiver of\nany provision set forth in this Section 6.\nNothing in this Agreement will prevent Teva or its Representatives from communicating with the Chief Executive Officer of Company to make a\nproposal for or to negotiate with Company in respect of a tender or exchange offer, merger or other business combination, or any other of the\ntransactions described in Section 6(a)(i) involving Company and Teva so long as such communication is made confidentially and does not\nrequire public disclosure. Following the end of the Standstill Period, nothing in this Agreement (including the prohibitions on use and disclosure\nset forth in Sections 1 and 4 hereof) shall, directly or indirectly, prevent or otherwise limit Teva and its Representatives from taking any actions\nreferred to in clauses (a)-(h) of this Section 6 or related thereto, and in each case without notice to or consultation with Company. The expiration\nof the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement. Furthermore, if at any time prior to\nthe end of the Standstill Period (i) a third party commences a tender offer for at least fifty percent (50%) of Company’s outstanding common\nstock that the Board of Directors of Company recommends, or (ii) a third party enters into an agreement with Company contemplating the\nacquisition (by way of merger, tender offer, or otherwise) of at least fifty percent (50%) of the outstanding common stock of Company, the\nrestrictions set forth in this Section 6 shall immediately terminate and cease to be of any further force or effect.\n7. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter\ninto any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it\ndeems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such\nprocess without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s\nRepresentatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any\ntime. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after\nthe date of this Agreement:\n4\n(i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested\nparty; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or\nrelating to any transaction or proposed transaction involving the other Party.\n8. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or\nfuture exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived\nor amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the\nparticular provision or provisions being waived or amended.\n9. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach.\nAccordingly, each Party will also be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach\nor threatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above\nwill not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at\nlaw or in equity to the Parties. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either\nParty or any of its Representatives has breached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party’s\nRepresentatives, the reasonable legal fees incurred by the other Party and the other Party’s Representatives in connection with such litigation\n(including any appeal relating thereto).\n10. Trading in Securities. The Recipient acknowledges and agrees that it is aware (and that the Recipient’s Representatives are aware or\nwill be advised by the Recipient) that Confidential Information being furnished by the Provider may contain material, non-public information\nregarding the Provider and that the United States securities laws prohibit any Person who has such material, non-public information from\npurchasing or selling securities of the Provider on the basis of such information or from communicating such information to any Person under\ncircumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of\neach Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in\naccordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and\nunconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of Delaware purposes of any action,\nsuit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S.\nregistered mail to the address set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any\nsuch action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any\naction, suit or proceeding\n5\narising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out\nof or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient\nforum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only\nthe following:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget,\nforecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other\naffiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has at\nany time been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative\nof the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or\nhas been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and\nthe proposed terms of any such transaction. However, the Provider ’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure\nof any of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or on behalf of the Provider or any of the Provider ’s Representatives, provided that the source of\nsuch information was not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to\nthe Provider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non- confidential basis from a source other than the Provider\nor any of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or\nother obligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n6\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential\nInformation and without reference to or use of Confidential Information.\n13. Co-Bidders and Financing Sources. Without limiting anything in this Agreement, Teva agrees that it will not directly or indirectly\n(i) approach or team, co-venture, club or otherwise partner with any person or firm that may be interested in participating in a transaction with\nCompany as a principal, co-investor, co- bidder or financing source or (ii) engage in any discussions which might lead to, or enter into, any\nagreement, arrangement or understanding with any such person or firm; provided, however, that subject to the written pre-approval of the\nCompany and subject to Section 14(a) below, Teva may contact and/or utilize pre-approved debt financing sources in connection with the\npotential negotiated transaction between the Parties.\n14. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a\nsubsidiary of such Party, (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of\nany of such Party’s subsidiaries (excluding any affiliated portfolio companies) or (iii) only upon prior written approval of Company, a\npotential debt financing source to be used by Teva in connection with a potential negotiated transaction between the Parties, provided that\nany debt financing source enters into a confidentiality agreement with Teva that include obligations relating to Company ‘s Confidential\nInformation, securities and employees that are at least as restrictive as the obligations in this Agreement (and providing that Company shall\nbe a third party beneficiary thereof).\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation,\npartnership, entity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in\nany other situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the\nProvider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any\npatent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s\nRepresentatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of\nthe Provider.\n7\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and\nthat it is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to,\nand shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any\nof such materials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine.\nAccordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other\napplicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense\ndoctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such\nprivileges or doctrines.\n(g) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(h) This Agreement shall continue in full force and effect for a period of three years from the effective date of this Agreement. This\nAgreement may be terminated by either party at any time upon thirty (30) days written notice to the other party. The termination of this\nAgreement shall not relieve the Recipient of the obligations imposed by Sections 1, 4, 5, 8 through 14 inclusive of this Agreement which\nshall survive any such termination and continue for a period of three years from the date of execution of this Agreement or relieve Teva of\nits obligations under Section 6 of this Agreement. Nothing herein is intended to limit or abridge the protection of trade secrets under\napplicable trade secrets law, and the protection of trade secrets by the Recipient shall be maintained as such until they fall into the public\ndomain.\n(i) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any\nproducts utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or\nregulations.\n(j) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related\nhereto, including legal notices, shall be in the English language only.\n8\n(k) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic\ntransaction or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\nThe parties have caused this Agreement to be executed as of March 1, 2015.\nAUSPEX PHARMACEUTICALS\nTEVA PHARMACEUTICAL INDUSTRIES, LTD.\nBy: /s/ Bharatt Chowrira\nBy:\n/s/ Keren Haruvi\nName: Bharatt Chowrira\nName: Keren Haruvi, VP\nTitle: COO\nTitle:\nHead of Global M&A and Transactional Analytics\nAddress:\n3333 North Torrey Pines Court\nSuite 400\nLa Jolla, CA 92037\nUSA\nContact: President & CEO\nBy:\n/s/ Amir Menis\nName: Amir Menis\nTitle:\nAnalyst, BD\nAddress:\n5 Basel Street\nPetach Tikva 4951033\nIsrael\nContact: Keren Haruvi\n9\nEXHIBIT A\nPROVIDER CONTACT PERSONS\nCOMPANY:\nPratik Shah, President and Chief Executive Officer\nBharatt Chowrira, Chief Operating Officer\nJohn Schmid, Chief Financial Officer\nTEVA:\nKeren Haruvi Snir, SVP, M&A\n10
+12fe8459ce606334afe537b24f476fa2.pdf	effective_date jurisdiction party term	EX-10 .10 3 ex101011112.htm EXHIBIT 10.10\nExhibit 10.10\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this “Agreement”), dated this 11th day of January, 2012, is by and among First\nFinancial Northwest, Inc. (the “Company”), Stilwell Associates, L.P., Stilwell Partners, L.P., Stilwell Value Partners II, L.P., Stilwell Value Partners\nVI, L.P., Stilwell Value Partners VII, L.P., Stilwell Value LLC, Stilwell Associates Insurance Fund of The S.A.L .I . Multi-Series Fund L.P., Stilwell\nAdvisers LLC, and Joseph Stilwell, an individual, and their employees and representatives (collectively, the "Stilwell Group") and Spencer L.\nSchneider, a director nominee of the Stilwell Group (“Schneider”).\nWHEREAS, the Company has agreed to place Schneider on its board of directors;\nWHEREAS, the Company, the Stilwell Group and Schneider have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, the parties hereto mutually agree as follows:\n1.\nIn connection with Schneider serving on the Company’s board, Schneider and other Company employees, directors, and\nagents may divulge nonpublic information concerning the Company and its subsidiaries to the Stilwell Group and such information may be shared\namong the Stilwell Group's employees and agents who have a need to know such information. The Stilwell Group expressly agrees to maintain all\nnonpublic information concerning the Company and its subsidiaries in confidence. The Stilwell Group expressly acknowledges that federal and\nstate securities laws may prohibit a person from purchasing or selling securities of a company, or from communicating such information to any\nother person under circumstances in which it is reasonably foreseeable that such other person is likely to purchase or sell such securities, while the\nfirst-mentioned person is in possession of material nonpublic information about such company. The Stilwell Group agrees to comply with the\nCompany’s insider trading and disclosure policies, as in effect from time to time, to the same extent as if it were a director of the Company. To the\nextent the nonpublic information concerning the Company and its subsidiaries received by the Stilwell Group is material, this Agreement is\nintended to satisfy the confidentiality agreement exclusion of Regulation FD of the Securities and Exchange Commission (the “SEC”) set forth in\nSection 243.100(b)(2)(ii) of Regulation FD.\n2.\nEach of the Stilwell Group and Schneider represents and warrants to the Company that this Agreement has been duly and\nvalidly authorized (in the case of the entity members of the Stilwell Group), executed and delivered by them, and is a valid and binding agreement\nenforceable against them in accordance with its terms.\n3.\nSchneider hereby further represents and warrants to the Company that: (a) he satisfies all of the qualifications to be a\ndirector of the Company as set forth in Article III, Section 4 of the Company’s bylaws and any additional applicable qualifications under the laws of\nthe State of Washington or under the regulations of any bank regulatory authority, and that he is not in any way precluded from serving as a director\nby order or other action of any court,\nregulatory or other governmental authority; and (b) no event has occurred with respect to Schneider that would require disclosure in a document\nfiled by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, under\nItem 401(f) of SEC Regulation S-K.\n4.\nThe Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic\ninformation of the Company and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this\nAgreement and that, in addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable\nrelief as a remedy for such breach, and in conjunction therewith the Company shall not be required to post any bond.\n5.\nThis Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and\nsupersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not\nreferred to herein.\n6.\nThis Agreement shall be governed by, and construed in accordance with the laws of the State of Washington, without\nregard to choice of law principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby\nirrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in the State of Washington to resolve any dispute arising from\nthis Agreement and waives any defense of inconvenient or improper forum.\n7.\nThe terms and provisions of this agreement shall be deemed severable, and in the event any term or provision hereof or\nportion thereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8.\nAll representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this\nAgreement.\n9.\nThis Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a\nwritten agreement executed by all of the parties hereto.\n10.\nThis Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall\nconstitute one and the same agreement.\n-2\n-\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned\nas of the day and year first above written.\nTHE STILWELL GROUP\nFIRST FINANCIAL NORTHWEST, INC.\n/s/Joseph Stilwell\n/s/Victor\nKarpiak\nBy: Joseph Stilwell\nBy: Victor Karpiak, Chairman, President\nand Chief Executive Officer\nSPENCER L. SCHNEIDER\n/s/Spencer L. Schneider\nSpencer L. Schneider\n-3-	EX-10.10 3 ex101011112.htm EXHIBIT 10.10\nExhibit 10.10\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this “Agreement”), dated this 11th day of January, 2012, is by and among First\nFinancial Northwest, Inc. (the “Company”), Stilwell Associates, L.P., Stilwell Partners, L.P., Stilwell Value Partners II, L.P., Stilwell Value Partners\nVI, L.P,, Stilwell Value Partners VII, L.P., Stilwell Value LLC, Stilwell Associates Insurance Fund of The S.A.L.I. Multi-Series Fund L.P., Stilwell\nAdvisers LLC, and Joseph Stilwell, an individual, and their employees and representatives (collectively, the "Stilwell Group") and Spencer L.\nSchneider, a director nominee of the Stilwell Group (“Schneider”).\nWHEREAS, the Company has agreed to place Schneider on its board of directors;\nWHEREAS, the Company, the Stilwell Group and Schneider have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, the parties hereto mutually agree as follows:\n1. In connection with Schneider serving on the Company’s board, Schneider and other Company employees, directors, and\nagents may divulge nonpublic information concerning the Company and its subsidiaries to the Stilwell Group and such information may be shared\namong the Stilwell Group's employees and agents who have a need to know such information. The Stilwell Group expressly agrees to maintain all\nnonpublic information concerning the Company and its subsidiaries in confidence. The Stilwell Group expressly acknowledges that federal and\nstate securities laws may prohibit a person from purchasing or selling securities of a company, or from communicating such information to any\nother person under circumstances in which it is reasonably foreseeable that such other person is likely to purchase or sell such securities, while the\nfirst-mentioned person is in possession of material nonpublic information about such company. The Stilwell Group agrees to comply with the\nCompany’s insider trading and disclosure policies, as in effect from time to time, to the same extent as if it were a director of the Company. To the\nextent the nonpublic information concerning the Company and its subsidiaries received by the Stilwell Group is material, this Agreement is\nintended to satisfy the confidentiality agreement exclusion of Regulation FD of the Securities and Exchange Commission (the “SEC”) set forth in\nSection 243.100(b)(2)(ii) of Regulation FD.\n2. Each of the Stilwell Group and Schneider represents and warrants to the Company that this Agreement has been duly and\nvalidly authorized (in the case of the entity members of the Stilwell Group), executed and delivered by them, and is a valid and binding agreement\nenforceable against them in accordance with its terms.\n3. Schneider hereby further represents and warrants to the Company that: (a) he satisfies all of the qualifications to be a\ndirector of the Company as set forth in Article III, Section 4 of the Company’s bylaws and any additional applicable qualifications under the laws of\nthe State of Washington or under the regulations of any bank regulatory authority, and that he is not in any way precluded from serving as a director\nby order or other action of any court,\nregulatory or other governmental authority; and (b) no event has occurred with respect to Schneider that would require disclosure in a document\nfiled by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, under\nItem 401(f) of SEC Regulation S-K.\n4. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic\ninformation of the Company and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this\nAgreement and that, in addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable\nrelief as a remedy for such breach, and in conjunction therewith the Company shall not be required to post any bond.\n5. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and\nsupersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not\nreferred to herein.\n6. This Agreement shall be governed by, and construed in accordance with the laws of the State of Washington, without\nregard to choice of law principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby\nirrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in the State of Washington to resolve any dispute arising from\nthis Agreement and waives any defense of inconvenient or improper forum.\n7. The terms and provisions of this agreement shall be deemed severable, and in the event any term or provision hereof or\nportion thereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8. All representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this\nAgreement.\n9. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a\nwritten agreement executed by all of the parties hereto.\n10. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall\nconstitute one and the same agreement.\nIN WITNESS WHEREOQF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned\nas of the day and year first above written.\nTHE STILWELL GROUP FIRST FINANCIAL NORTHWEST, INC.\n[s/Joseph Stilwell [s/Victor\nKarpiak 00000\nBy: Joseph Stilwell By: Victor Karpiak, Chairman, President\nand Chief Executive Officer\nSPENCER L. SCHNEIDER\n/s/Spencer L. Schneider\nSpencer L. Schneider	EX-10.10 3 ex101011112.htm EXHIBIT 10.10\nExhibit 10.10\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this "Agreement"), dated this 11th day of January, 2012, is by and among First\nFinancial Northwest, Inc. (the "Company"), Stilwell Associates, L.P., Stilwell Partners, L.P., Stilwell Value Partners II, L.P., Stilwell Value Partners\nVI, L.P., Stilwell Value Partners VII, L.P., Stilwell Value LLC, Stilwell Associates Insurance Fund of The S.A.L.I. Multi-Series Fund L.P., Stilwell\nAdvisers LLC, and Joseph Stilwell, an individual, and their employees and representatives (collectively, the "Stilwell Group") and Spencer L.\nSchneider, a director nominee of the Stilwell Group ("Schneider").\nWHEREAS, the Company has agreed to place Schneider on its board of directors;\nWHEREAS, the Company, the Stilwell Group and Schneider have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, the parties hereto mutually agree as follows:\n1.\nIn connection with Schneider serving on the Company's board, Schneider and other Company employees, directors, and\nagents may divulge nonpublic information concerning the Company and its subsidiaries to the Stilwell Group and such information may be shared\namong the Stilwell Group's employees and agents who have a need to know such information. The Stilwell Group expressly agrees to maintain all\nnonpublic information concerning the Company and its subsidiaries in confidence. The Stilwell Group expressly acknowledges that federal and\nstate securities laws may prohibit a person from purchasing or selling securities of a company, or from communicating such information to any\nother person under circumstances in which it is reasonably foreseeable that such other person is likely to purchase or sell such securities, while\nthe\nfirst-mentioned person is in possession of material nonpublic information about such company. The Stilwell Group agrees to comply with the\nCompany's insider trading and disclosure policies, as in effect from time to time, to the same extent as if it were a director of the Company. To the\nextent the nonpublic information concerning the Company and its subsidiaries received by the Stilwell Group is material, this Agreement is\nintended to satisfy the confidentiality agreement exclusion of Regulation FD of the Securities and Exchange Commission (the "SEC") set forth in\nSection 243.100(b)(2)(ii) of Regulation FD.\n2.\nEach of the Stilwell Group and Schneider represents and warrants to the Company that this Agreement has been duly and\nvalidly authorized (in the case of the entity members of the Stilwell Group), executed and delivered by them, and is a valid and binding agreement\nenforceable against them in accordance with its terms.\n3.\nSchneider hereby further represents and warrants to the Company that: (a) he satisfies all of the qualifications to be\na\ndirector of the Company as set forth in Article III, Section 4 of the Company's bylaws and any additional applicable qualifications under the laws of\nthe State of Washington or under the regulations of any bank regulatory authority, and that he is not in any way precluded from serving as a director\nby order or other action of any court,\nregulatory or other governmental authority; and (b) no event has occurred with respect to Schneider that would require disclosure in a document\nfiled by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, under\nItem 401(f) of SEC Regulation S-K.\n4.\nThe Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic\ninformation of the Company and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this\nAgreement and that, in addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable\nrelief as a remedy for such breach, and in conjunction therewith the Company shall not be required to post any bond.\n5.\nThis Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and\nsupersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not\nreferred to herein.\n6.\nThis Agreement shall be governed by, and construed in accordance with the laws of the State of Washington, without\nregard to choice of law principles that may otherwise compel the application of the laws of any other jurisdiction Each of the parties hereby\nirrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in the State of Washington to resolve any dispute arising from\nthis Agreement and waives any defense of inconvenient or improper forum.\n7.\nThe terms and provisions of this agreement shall be deemed severable, and in the event any term or provision hereof or\nportion thereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8.\nAll representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this\nAgreement.\n9.\nThis Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a\nwritten agreement executed by all of the parties hereto.\n10.\nThis Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall\nconstitute one and the same agreement.\n- 2 -\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned\nas of the day and year first above written.\nTHE STILWELL GROUP\nFIRST FINANCIAL NORTHWEST, INC.\n/s/Joseph Stilwell\n/s/Victor\nKarpiak\nBy:\nJoseph Stilwell\nBy:\nVictor Karpiak, Chairman, President\nand Chief Executive Officer\nSPENCER L. SCHNEIDER\nIs/Spencer L. Schneider\nSpencer L. Schneider\n-3-	EX-10 .10 3 ex101011112.htm EXHIBIT 10.10\nExhibit 10.10\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this “Agreement”), dated this 11th day of January, 2012, is by and among First\nFinancial Northwest, Inc. (the “Company”), Stilwell Associates, L.P., Stilwell Partners, L.P., Stilwell Value Partners II, L.P., Stilwell Value Partners\nVI, L.P., Stilwell Value Partners VII, L.P., Stilwell Value LLC, Stilwell Associates Insurance Fund of The S.A.L .I . Multi-Series Fund L.P., Stilwell\nAdvisers LLC, and Joseph Stilwell, an individual, and their employees and representatives (collectively, the "Stilwell Group") and Spencer L.\nSchneider, a director nominee of the Stilwell Group (“Schneider”).\nWHEREAS, the Company has agreed to place Schneider on its board of directors;\nWHEREAS, the Company, the Stilwell Group and Schneider have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, the parties hereto mutually agree as follows:\n1.\nIn connection with Schneider serving on the Company’s board, Schneider and other Company employees, directors, and\nagents may divulge nonpublic information concerning the Company and its subsidiaries to the Stilwell Group and such information may be shared\namong the Stilwell Group's employees and agents who have a need to know such information. The Stilwell Group expressly agrees to maintain all\nnonpublic information concerning the Company and its subsidiaries in confidence. The Stilwell Group expressly acknowledges that federal and\nstate securities laws may prohibit a person from purchasing or selling securities of a company, or from communicating such information to any\nother person under circumstances in which it is reasonably foreseeable that such other person is likely to purchase or sell such securities, while the\nfirst-mentioned person is in possession of material nonpublic information about such company. The Stilwell Group agrees to comply with the\nCompany’s insider trading and disclosure policies, as in effect from time to time, to the same extent as if it were a director of the Company. To the\nextent the nonpublic information concerning the Company and its subsidiaries received by the Stilwell Group is material, this Agreement is\nintended to satisfy the confidentiality agreement exclusion of Regulation FD of the Securities and Exchange Commission (the “SEC”) set forth in\nSection 243.100(b)(2)(ii) of Regulation FD.\n2.\nEach of the Stilwell Group and Schneider represents and warrants to the Company that this Agreement has been duly and\nvalidly authorized (in the case of the entity members of the Stilwell Group), executed and delivered by them, and is a valid and binding agreement\nenforceable against them in accordance with its terms.\n3.\nSchneider hereby further represents and warrants to the Company that: (a) he satisfies all of the qualifications to be a\ndirector of the Company as set forth in Article III, Section 4 of the Company’s bylaws and any additional applicable qualifications under the laws of\nthe State of Washington or under the regulations of any bank regulatory authority, and that he is not in any way precluded from serving as a director\nby order or other action of any court,\nregulatory or other governmental authority; and (b) no event has occurred with respect to Schneider that would require disclosure in a document\nfiled by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, under\nItem 401(f) of SEC Regulation S-K.\n4.\nThe Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic\ninformation of the Company and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this\nAgreement and that, in addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable\nrelief as a remedy for such breach, and in conjunction therewith the Company shall not be required to post any bond.\n5.\nThis Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and\nsupersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not\nreferred to herein.\n6.\nThis Agreement shall be governed by, and construed in accordance with the laws of the State of Washington, without\nregard to choice of law principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby\nirrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in the State of Washington to resolve any dispute arising from\nthis Agreement and waives any defense of inconvenient or improper forum.\n7.\nThe terms and provisions of this agreement shall be deemed severable, and in the event any term or provision hereof or\nportion thereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8.\nAll representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this\nAgreement.\n9.\nThis Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a\nwritten agreement executed by all of the parties hereto.\n10.\nThis Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall\nconstitute one and the same agreement.\n-2\n-\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned\nas of the day and year first above written.\nTHE STILWELL GROUP\nFIRST FINANCIAL NORTHWEST, INC.\n/s/Joseph Stilwell\n/s/Victor\nKarpiak\nBy: Joseph Stilwell\nBy: Victor Karpiak, Chairman, President\nand Chief Executive Officer\nSPENCER L. SCHNEIDER\n/s/Spencer L. Schneider\nSpencer L. Schneider\n-3-
+137b97581e7b68b665e86b37d0a25500.pdf	effective_date jurisdiction party term	EX-99.(D)(4) 9 dex99d4.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(4)\nMUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\nThis MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT is made to be effective on 30th day of April, 2009, between California\nMicro Devices Corporation , a Delaware corporation having its principal place of business at 490 N. McCarthy Blvd., #100, Milpitas, CA 95035\ntogether with its Affiliates (the “Company”), and ON Semiconductor Corporation, a Delaware corporation having its principal place of business at\n5005 East McDowell Road, Phoenix, AZ 85008 USA together with its Affiliates (“ON”). ON and the Company propose to enter into discussions\nconcerning a corporate strategic transaction in which ON would acquire the Company via merger (a “Transaction”). In these discussions, each party\n(the “Discloser’”) will disclose information to the other party (the “Recipient”).\n1.0 DEFINITIONS. The term “Evaluation Material” shall mean information relating to the Discloser provided to the Recipient, and any other\ninformation derived by the Recipient or its directors, officers, employees, financial advisors, independent auditors, legal counsel or other agents or\nrepresentatives engaged for the Purpose (its “Representatives”) from the foregoing information related to the Discloser. The parties shall use\ncommercially reasonable efforts so that Evaluation Material provided in written form (including where provided in electronic or soft copy form) is\nlabeled as confidential or proprietary and Evaluation Material provided orally is designated as confidential or proprietary at the time of disclosure;\nprovided, however, that failure to do so shall not impact whether such information is Evaluation Material. “Affiliate” shall have the meaning given\nsuch term in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended (the “1934 Act”).\n2.0 PURPOSE. Each party agrees not to use, or allow the use by any of its Representatives, any portion of the other party’s Evaluation\nMaterial for any purpose other than evaluating a possible Transaction (the “Purpose”). Thus, for example, the Recipient will not interfere with any\nbusiness of Discloser through the use of any Evaluation Material or knowledge acquired under this Agreement nor use any such Evaluation Material\nfor its own account other than for the Purpose. In furtherance of the Purpose and subject to the terms and conditions of this Agreement, each party\nagrees to make available to the other party certain Evaluation Material.\n3.0 OBLIGATIONS OF CONFIDENTIALITY; LIMITATION OF USE.\n3.1 Each party agrees to keep confidential, and not to disclose or allow disclosure by any of its Representatives to others of any portion of, the\nother party’s Evaluation Material, except as provided for in this Agreement and except to its Representatives on a need to know basis after they have\nbeen informed of and have agreed to abide by the confidentiality and use restrictions in this Agreement. Each party shall be responsible for any\nbreach of this Agreement by its Representatives or Affiliates. Recipient shall protect the Evaluation Material with at least the same standard of care\nas it exercises to protect its own confidential information of like importance, but in no event less than reasonable care.\n3.2 Without limiting Section 3.1 above, a party will not, nor will it allow any of its Representatives to, (except as provided for in this\nAgreement or as required by applicable law or legal process) disclose to any third party, any information regarding the Transaction or any\ninformation relating in any way to the Evaluation Material, including, without limitation (i) that any investigations, discussions or negotiations are\ntaking or have taken place concerning a possible Transaction, including the status thereof or the termination of such discussions or negotiations,\n(ii) any of the terms, conditions or other facts with respect to any such possible Transaction or its consideration of a possible Transaction, (iii) that\nthis Agreement exists, that Evaluation Material exist or has been requested or made available or (iv) any opinion or view with respect to the\nTransaction or the Evaluation Material.\n3.3 The Recipient will only make such number of copies of the Evaluation Material as are necessary for the Purpose. Recipient shall reproduce\nand include in all copies of Evaluation Material prepared by Recipient the copyright notices and proprietary legends of Discloser as they appear\ntherein as furnished to Recipient by Discloser. Recipient shall not remove any proprietary, copyright, mask work, trade secret or other legend from\nany form of Evaluation Material. The Recipient shall not attempt to reverse-engineer any Evaluation Material and/or tangible objects containing the\nEvaluation Material.\n3.4 Recipient shall have no obligation hereunder as to Evaluation Material that (i) is known to Recipient at the time of disclosure, as evidenced\nby written documentation or other reasonably convincing proof; (ii) the Recipient independently develops without use of Evaluation Material;\n(iii) becomes rightfully known to Recipient without, to the Recipient’s knowledge, any confidentiality obligation; or (iv) is or becomes publicly\nknown through no wrongful act or omission of the Recipient.\n3.5 Each party hereby acknowledges that it is aware, and further agrees that it will advise its Representatives, that US Federal and state\nsecurities laws limit the circumstances in which any person who has material, non-public information about a company from purchasing or selling\nsecurities of such a company and prohibit any such person from communicating such information to any other\nPage1of4\nperson under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities or derivative securities\nrelating to such securities.\n4.0 TRANSACTION AGREEMENT. Each party agrees that no contract or agreement providing for a Transaction shall be deemed to exist\nbetween the parties and/or any of the parties’ stockholders unless and until a detailed definitive written agreement providing for a Transaction (a\n“Transaction Agreement”) has been executed and delivered by both parties, and each party hereby waives, in advance, any claims (including,\nwithout limitation, claims for breach of contract) in connection with any possible Transaction unless and until the parties shall have entered into such\ndefinitive Transaction Agreement. Each party also agrees that unless and until such definitive Transaction Agreement has been executed and\ndelivered by both parties, neither party has any legal obligation of any kind whatsoever with respect to any Transaction by virtue of this Agreement\nor any other written or oral expression with respect to such Transaction except, in the case of this Agreement, for the matters specifically agreed to\nherein. The term “Transaction Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it\ninclude any written or oral acceptance of any offer or bid by any party.\n5.0 JUDICIAL OR GOVERNMENTAL DISCLOSURE. If any party or any of its Representatives becomes legally compelled (by judicial\nor governmental request, requirement or order, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar\nprocess) to disclose any of the other party’s Evaluation Material, or is threatened to become so legally compelled, such party shall provide the other\nparty with prompt prior written notice so that the other party may attempt to prevent, and/or assist such party in its attempts to prevent, such legal\ncompulsion and such party may ultimately disclose only that portion of the other party’s Evaluation Material that is legally required and shall\nexercise best efforts to obtain assurance that confidential treatment will be accorded the other party’s Evaluation Material. In the event either party is\nadvised by counsel that such party is required by law to make any public disclosure otherwise prohibited by this Agreement, such party may make\nsuch public disclosure but shall give as much prior notice as is practicable to the other party and shall give the other party a reasonable opportunity to\ncomment on or to attempt to prevent the proposed disclosure.\n6.0 TERM; TERMINATION.\n6.1This Agreement shall terminate in its entirety one year after the date of this Agreement or, if earlier, upon the execution and delivery of a\nTransaction Agreement, unless the Transaction Agreement expressly otherwise provides.\n6.2 Either party may terminate this Agreement for any or no reason, by providing written notice of termination to the other party. The\nobligations of each of the parties under this Agreement shall remain in effect and survive any such termination for a period of three (3) years from\nthe date of this Agreement, except as otherwise stated in this Agreement.\n6.3 Each party agrees that if this Agreement is terminated or if the other party so requests in writing, Recipient shall promptly return to\nDiscloser (or at Recipient’s option destroy, subject to the next sentence of this Section, with such destruction to be certified to Discloser by an officer\nof Recipient) all copies of the Discloser’s Evaluation Material in its possession or in the possession of its Representatives. Notwithstanding the\nforegoing, Recipient may, pursuant to its standard retention policy, retain one archival copy and copies contained on routine back-ups of its email\nsystem subject to the confidentiality provisions of this Agreement.\n7.0 GENERAL.\n7.1. Assignment. Neither party may assign or transfer any of its rights or obligations under this Agreement.\n7.2 Waiver. No failure or delay by either party regarding any right, power or privilege hereunder shall operate as a waiver thereof and no single\nor partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n7.3 No Other Rights. The Recipient does not acquire any license, rights or title in any Evaluation Material, except the limited right to use as\ndescribed above. The parties agree that nothing herein (i) requires the disclosure of any Evaluation Material to the other party or (ii) requires either\nparty to proceed with any transaction or relationship. Further, each party understands and acknowledges that neither party makes any representation\nor warranty, express or implied, as to the accuracy or completeness of the Evaluation Material exchanged. Evaluation Material IS DELIVERED “AS\nIS,” AND ALL REPRESENTATIVES AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING FITNESS FOR A PARTICULAR\nPURPOSE, MERCHANTABILITY AND NONINFRINGEMENT ARE HEREBY DISCLAIMED except that, as its sole representation and\nwarranty, Discloser represents and warrants that it and its Representatives may rightfully disclose and make available the Evaluation Material it\ndiscloses to the Recipient without violating any contractual, legal, fiduciary, or other obligation or restriction applicable to the Discloser. Each party\nagrees that neither party shall have any liability to the other party relating to or resulting from the use permitted under this Agreement of or reliance\nupon such other party’s Evaluation Material or any errors therein or omissions therefrom. Only those subsequent\nPage2of4\nrepresentations or warranties, which are made in a final definitive agreement regarding a possible transaction or business combination, when, and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n7.4 No Agency. The parties hereto are independent contractors, and nothing herein shall be construed to create an agency, joint venture,\npartnership or other form of business association between the parties hereto.\n75. No Export. The parties agree to comply with all laws, rules and regulations applicable to the export or re-export of Evaluation Material,\nincluding obtaining any export licenses or other permissions required.\n7.6 Enforcement. Recipient acknowledges and agrees that in the event of an unauthorized use, reproduction, distribution or disclosure of any\nEvaluation Material, Discloser will not have an adequate remedy at law, and, therefore, injunctive or other equitable relief would be appropriate to\nrestrain such use, reproduction, distribution or disclosure, threatened or actual. Such remedy shall not be deemed to be the exclusive remedy for\nbreach of this Agreement, but shall be in addition to all other remedies available at law or equity to the Discloser.\n7.7. Notices. All notices or demands hereunder shall be in writing and sent to the other party and will be deemed delivered upon\nacknowledgment of receipt by the other party. Notices shall be sent to the addresses in the introduction or such other address as the parties provide\none another.\n7.8. Governing Law and Venue. This Agreement shall be governed by and interpreted in accordance with the laws of the state of Delaware.\nThe parties hereby submit to the jurisdiction of, and waive venue objections to, the Delaware Court of Chancery in the State of Delaware for the\npurposes of any action , suit, or proceeding arising out of or related to this Agreement and agree that they will commence any such matter in\nconnection with this Agreement only in such courts.\n7.9. Unenforceable Provisions. In the event that any provisions of this Agreement are held to be unenforceable, the remainder of this\nAgreement shall remain in full force and effect, and the parties agree to negotiate in good faith substitute enforceable provisions that most nearly\neffect the intent of the parties.\n8.0 COMPLETE AGREEMENT. This Agreement constitutes the entire agreement and understanding of the parties concerning its subject\nmatter, superseding all previous representations, agreements, and understandings, whether oral or written, relating to the subject matter hereof. Any\namendment to this Agreement shall be in a writing signed by both parties.\n9.0 STAND-STILL. Each party agrees that, until one year from the date of this Agreement, such party and its Representatives and its\n“Affiliates” as defined in the Securities Exchange Act of 1934, as amended (the “1934 Act”), will not in any manner, directly or indirectly, without\nthe prior written invitation or approval of the Board of Directors of the other party (a) effect or seek, offer or propose (whether publicly or otherwise)\nto effect, or cause or participate in or in any way knowingly assist any other person to effect or seek, offer or propose (whether publicly or otherwise)\nto effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or a material portion of the assets of the other party or\nany of its subsidiaries; (ii) any tender or exchange offer, merger or other business combination involving the other party or any of its subsidiaries;\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other party or any of its\nsubsidiaries; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of\nthe other party or otherwise seek to advise or influence any person with respect to the voting of any securities of the other party; (b) form, join or in\nany way participate) in a “group” (as defined under the 1934 Act) in connection with any securities of the other party; (c) otherwise act, alone or in\nconcert with others, or seek to control or influence the Board of Directors or policies of the other party; (d) disclose any intention, plan or\narrangement inconsistent with the foregoing; (e) take any action which might force the other party to make a public announcement regarding any of\nthe types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing;\nprovided, however, that the foregoing obligations shall terminate as to a party if the other party publicly discloses that (a) it has entered into a merger\nagreement or an agreement for the sale of all or substantially all of that party’s assets with a third party which would result in that party’s\nstockholders receiving cash or stock of such third party in exchange for their shares or (b) the other party has endorsed or otherwise agreed to\nsupport the tender offer of a third party which if successful would result in the third party owning a majority of its outstanding stock. Except as\nprovided above, each party also agrees not to request the other party (or its Representatives) to amend or waive any provision of this paragraph.\nNotwithstanding the foregoing, (1) the Representative of party that is an investment banking., law, or independent accounting firm may after the\ntermination of this Agreement request that the other party consent that such firm may advise a third party with respect to the other party and not be in\nviolation of this Section 9 and the other party agrees in good faith to consider such request and (2) either party may vote shares of the other party\nacquired after the date of this Agreement with the approval of the other party.\n10.0 NON-SOLICITATION. Each party agrees not to solicit for employment any employees of the other party to whom such party may be\nintroduced or with whom such party otherwise had contact as a result of such party’s consideration of a Transaction until\nPage3of4\none year from the date of this Agreement, provided that such party shall not be restricted in any general solicitation for employees (including through\nthe use of employment agencies) not specifically directed at any such persons, and provided further that such party shall not be restricted in hiring\nany such person who responds to any such general solicitation.\n11.0 ANTITRUST COMPLIANCE. As the parties may be deemed to be competitors in some product lines, they agree that disclosures of\ncompetitively sensitive Evaluation Material (e.g ., information concerning prices, pricing plans and strategies, bidding and costs for competitive\nproduct lines) should not occur until the parties have determined based upon their due diligence that there is a reasonable likelihood that they will\nwant to engage in a Transaction and that such disclosure is necessary in order for the parties to evaluate the business and prospects and hence\nwhether to undertake a Transaction. The parties further agree that any such disclosures will be made only in accordance with applicable antitrust\nlaws. The parties understand that any Transaction may be subject to the US Hart-Scott-Rodino Act and require that Notification and Report Forms be\nsubmitted to the antitrust authorities. The parties further understand that the definitive agreement concerning a Transaction will contain further\nprovisions on the sharing of competitively sensitive Evaluation Material in order to ensure compliance with all applicable antitrust laws until the\nTransaction closes (or in the event the Transaction does not close). The parties may determine that, in order to evaluate the transaction under antitrust\nor competition laws, it would further their common interest to exchange more detailed information under appropriate conditions.\n12.0 ATTORNEY CLIENT PRIVILEGE. To the extent that any Evaluation Material may include material or information that is subject to\nthe attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or\ngovernmental investigations, the parties hereby agree and acknowledge that the sharing of such material is not intended to, and shall not, waive or\ndiminish in any way the confidentiality of such material or its continued privilege. Any Evaluation Material provided by Discloser that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection and nothing\nin this agreement shall obligate any party to reveal material or information that is subject to the attorney-client privilege, work product doctrine or\nother applicable privilege.\n“ON”\nBy: /s/ KEITH JACKSON\nKeith Jackson\nNAME (PRINT OR TYPE)\nCEO\nTITLE\n“COMPANY”\nBy: /s/ ROBERT V. DICKINSON\nRobert V. Dickinson\nNAME (PRINT OR TYPE)\nPresident and CEO\nTITLE\nPage4of4	EX-99.(D)(4) 9 dex99d4.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(4)\nMUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\nThis MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT is made to be effective on 30th day of April, 2009, between California\nMicro Devices Corporation , a Delaware corporation having its principal place of business at 490 N. McCarthy Blvd., #100, Milpitas, CA 95035\ntogether with its Affiliates (the “Company”), and ON Semiconductor Corporation, a Delaware corporation having its principal place of business at\n5005 East McDowell Road, Phoenix, AZ 85008 USA together with its Affiliates (“ON”). ON and the Company propose to enter into discussions\nconcerning a corporate strategic transaction in which ON would acquire the Company via merger (a “Transaction”). In these discussions, each party\n(the “Discloser’”) will disclose information to the other party (the “Recipient”).\n1.0 DEFINITIONS. The term “Evaluation Material” shall mean information relating to the Discloser provided to the Recipient, and any other\ninformation derived by the Recipient or its directors, officers, employees, financial advisors, independent auditors, legal counsel or other agents or\nrepresentatives engaged for the Purpose (its “Representatives”) from the foregoing information related to the Discloser. The parties shall use\ncommercially reasonable efforts so that Evaluation Material provided in written form (including where provided in electronic or soft copy form) is\nlabeled as confidential or proprietary and Evaluation Material provided orally is designated as confidential or proprietary at the time of disclosure;\nprovided, however, that failure to do so shall not impact whether such information is Evaluation Material. “Affiliate” shall have the meaning given\nsuch term in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended (the “1934 Act”).\n2.0 PURPOSE. Each party agrees not to use, or allow the use by any of its Representatives, any portion of the other party’s Evaluation\nMaterial for any purpose other than evaluating a possible Transaction (the “Purpose”). Thus, for example, the Recipient will not interfere with any\nbusiness of Discloser through the use of any Evaluation Material or knowledge acquired under this Agreement nor use any such Evaluation Material\nfor its own account other than for the Purpose. In furtherance of the Purpose and subject to the terms and conditions of this Agreement, each party\nagrees to make available to the other party certain Evaluation Material.\n3.0 OBLIGATIONS OF CONFIDENTIALITY; LIMITATION OF USE.\n3.1 Each party agrees to keep confidential, and not to disclose or allow disclosure by any of its Representatives to others of any portion of, the\nother party’s Evaluation Material, except as provided for in this Agreement and except to its Representatives on a need to know basis after they have\nbeen informed of and have agreed to abide by the confidentiality and use restrictions in this Agreement. Each party shall be responsible for any\nbreach of this Agreement by its Representatives or Affiliates. Recipient shall protect the Evaluation Material with at least the same standard of care\nas it exercises to protect its own confidential information of like importance, but in no event less than reasonable care.\n3.2 Without limiting Section 3.1 above, a party will not, nor will it allow any of its Representatives to, (except as provided for in this\nAgreement or as required by applicable law or legal process) disclose to any third party, any information regarding the Transaction or any\ninformation relating in any way to the Evaluation Material, including, without limitation (i) that any investigations, discussions or negotiations are\ntaking or have taken place concerning a possible Transaction, including the status thereof or the termination of such discussions or negotiations,\n(ii) any of the terms, conditions or other facts with respect to any such possible Transaction or its consideration of a possible Transaction, (iii) that\nthis Agreement exists, that Evaluation Material exist or has been requested or made available or (iv) any opinion or view with respect to the\nTransaction or the Evaluation Material.\n3.3 The Recipient will only make such number of copies of the Evaluation Material as are necessary for the Purpose. Recipient shall reproduce\nand include in all copies of Evaluation Material prepared by Recipient the copyright notices and proprietary legends of Discloser as they appear\ntherein as furnished to Recipient by Discloser. Recipient shall not remove any proprietary, copyright, mask work, trade secret or other legend from\nany form of Evaluation Material. The Recipient shall not attempt to reverse-engineer any Evaluation Material and/or tangible objects containing the\nEvaluation Material.\n3.4 Recipient shall have no obligation hereunder as to Evaluation Material that (i) is known to Recipient at the time of disclosure, as evidenced\nby written documentation or other reasonably convincing proof; (ii) the Recipient independently develops without use of Evaluation Material;\n(iii) becomes rightfully known to Recipient without, to the Recipient’s knowledge, any confidentiality obligation; or (iv) is or becomes publicly\nknown through no wrongful act or omission of the Recipient.\n3.5 Each party hereby acknowledges that it is aware, and further agrees that it will advise its Representatives, that US Federal and state\nsecurities laws limit the circumstances in which any person who has material, non-public information about a company from purchasing or selling\nsecurities of such a company and prohibit any such person from communicating such information to any other\nPage 1 of 4\nperson under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities or derivative securities\nrelating to such securities.\n4.0 TRANSACTION AGREEMENT. Each party agrees that no contract or agreement providing for a Transaction shall be deemed to exist\nbetween the parties and/or any of the parties’ stockholders unless and until a detailed definitive written agreement providing for a Transaction (a\n“Transaction Agreement”) has been executed and delivered by both parties, and each party hereby waives, in advance, any claims (including,\nwithout limitation, claims for breach of contract) in connection with any possible Transaction unless and until the parties shall have entered into such\ndefinitive Transaction Agreement. Each party also agrees that unless and until such definitive Transaction Agreement has been executed and\ndelivered by both parties, neither party has any legal obligation of any kind whatsoever with respect to any Transaction by virtue of this Agreement\nor any other written or oral expression with respect to such Transaction except, in the case of this Agreement, for the matters specifically agreed to\nherein. The term “Transaction Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it\ninclude any written or oral acceptance of any offer or bid by any party.\n \n5.0 JUDICIAL OR GOVERNMENTAL DISCLOSURE. If any party or any of its Representatives becomes legally compelled (by judicial\nor governmental request, requirement or order, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar\nprocess) to disclose any of the other party’s Evaluation Material, or is threatened to become so legally compelled, such party shall provide the other\nparty with prompt prior written notice so that the other party may attempt to prevent, and/or assist such party in its attempts to prevent, such legal\ncompulsion and such party may ultimately disclose only that portion of the other party’s Evaluation Material that is legally required and shall\nexercise best efforts to obtain assurance that confidential treatment will be accorded the other party’s Evaluation Material. In the event either party is\nadvised by counsel that such party is required by law to make any public disclosure otherwise prohibited by this Agreement, such party may make\nsuch public disclosure but shall give as much prior notice as is practicable to the other party and shall give the other party a reasonable opportunity to\ncomment on or to attempt to prevent the proposed disclosure.\n6.0 TERM; TERMINATION.\n6.1This Agreement shall terminate in its entirety one year after the date of this Agreement or, if earlier, upon the execution and delivery of a\nTransaction Agreement, unless the Transaction Agreement expressly otherwise provides.\n6.2 Either party may terminate this Agreement for any or no reason, by providing written notice of termination to the other party. The\nobligations of each of the parties under this Agreement shall remain in effect and survive any such termination for a period of three (3) years from\nthe date of this Agreement, except as otherwise stated in this Agreement.\n6.3 Each party agrees that if this Agreement is terminated or if the other party so requests in writing, Recipient shall promptly return to\nDiscloser (or at Recipient’s option destroy, subject to the next sentence of this Section, with such destruction to be certified to Discloser by an officer\nof Recipient) all copies of the Discloser’s Evaluation Material in its possession or in the possession of its Representatives. Notwithstanding the\nforegoing, Recipient may, pursuant to its standard retention policy, retain one archival copy and copies contained on routine back-ups of its email\nsystem subject to the confidentiality provisions of this Agreement.\n7.0 GENERAL.\n7.1. Assignment. Neither party may assign or transfer any of its rights or obligations under this Agreement.\n7.2 Waiver. No failure or delay by either party regarding any right, power or privilege hereunder shall operate as a waiver thereof and no single\nor partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n7.3 No Other Rights. The Recipient does not acquire any license, rights or title in any Evaluation Material, except the limited right to use as\ndescribed above. The parties agree that nothing herein (i) requires the disclosure of any Evaluation Material to the other party or (ii) requires either\nparty to proceed with any transaction or relationship. Further, each party understands and acknowledges that neither party makes any representation\nor warranty, express or implied, as to the accuracy or completeness of the Evaluation Material exchanged. Evaluation Material IS DELIVERED “AS\nIS,” AND ALL REPRESENTATIVES AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING FITNESS FOR A PARTICULAR\nPURPOSE, MERCHANTABILITY AND NONINFRINGEMENT ARE HEREBY DISCLAIMED except that, as its sole representation and\nwarranty, Discloser represents and warrants that it and its Representatives may rightfully disclose and make available the Evaluation Material it\ndiscloses to the Recipient without violating any contractual, legal, fiduciary, or other obligation or restriction applicable to the Discloser. Each party\nagrees that neither party shall have any liability to the other party relating to or resulting from the use permitted under this Agreement of or reliance\nupon such other party’s Evaluation Material or any errors therein or omissions therefrom. Only those subsequent\nPage 2 of 4\nrepresentations or warranties, which are made in a final definitive agreement regarding a possible transaction or business combination, when, and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n7.4 No Agency. The parties hereto are independent contractors, and nothing herein shall be construed to create an agency, joint venture,\npartnership or other form of business association between the parties hereto.\n75. No Export. The parties agree to comply with all laws, rules and regulations applicable to the export or re-export of Evaluation Material,\nincluding obtaining any export licenses or other permissions required.\n7.6 Enforcement. Recipient acknowledges and agrees that in the event of an unauthorized use, reproduction, distribution or disclosure of any\nEvaluation Material, Discloser will not have an adequate remedy at law, and, therefore, injunctive or other equitable relief would be appropriate to\nrestrain such use, reproduction, distribution or disclosure, threatened or actual. Such remedy shall not be deemed to be the exclusive remedy for\nbreach of this Agreement, but shall be in addition to all other remedies available at law or equity to the Discloser.\n7.7. Notices. All notices or demands hereunder shall be in writing and sent to the other party and will be deemed delivered upon\nacknowledgment of receipt by the other party. Notices shall be sent to the addresses in the introduction or such other address as the parties provide\none another.\n7.8. Governing Law and Venue. This Agreement shall be governed by and interpreted in accordance with the laws of the state of Delaware.\nThe parties hereby submit to the jurisdiction of, and waive venue objections to, the Delaware Court of Chancery in the State of Delaware for the\npurposes of any action , suit, or proceeding arising out of or related to this Agreement and agree that they will commence any such matter in\nconnection with this Agreement only in such courts.\n7.9. Unenforceable Provisions. In the event that any provisions of this Agreement are held to be unenforceable, the remainder of this\nAgreement shall remain in full force and effect, and the parties agree to negotiate in good faith substitute enforceable provisions that most nearly\neffect the intent of the parties.\n8.0 COMPLETE AGREEMENT. This Agreement constitutes the entire agreement and understanding of the parties concerning its subject\nmatter, superseding all previous representations, agreements, and understandings, whether oral or written, relating to the subject matter hereof. Any\namendment to this Agreement shall be in a writing signed by both parties.\n9.0 STAND-STILL. Each party agrees that, until one year from the date of this Agreement, such party and its Representatives and its\n“Affiliates” as defined in the Securities Exchange Act of 1934, as amended (the “1934 Act”), will not in any manner, directly or indirectly, without\nthe prior written invitation or approval of the Board of Directors of the other party (a) effect or seek, offer or propose (whether publicly or otherwise)\nto effect, or cause or participate in or in any way knowingly assist any other person to effect or seek, offer or propose (whether publicly or otherwise)\nto effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or a material portion of the assets of the other party or\nany of its subsidiaries; (ii) any tender or exchange offer, merger or other business combination involving the other party or any of its subsidiaries;\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other party or any of its\nsubsidiaries; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of\nthe other party or otherwise seek to advise or influence any person with respect to the voting of any securities of the other party; (b) form, join or in\nany way participate) in a “group” (as defined under the 1934 Act) in connection with any securities of the other party; (c) otherwise act, alone or in\nconcert with others, or seek to control or influence the Board of Directors or policies of the other party; (d) disclose any intention, plan or\narrangement inconsistent with the foregoing; (e) take any action which might force the other party to make a public announcement regarding any of\nthe types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing;\nprovided, however, that the foregoing obligations shall terminate as to a party if the other party publicly discloses that (a) it has entered into a merger\nagreement or an agreement for the sale of all or substantially all of that party’s assets with a third party which would result in that party’s\nstockholders receiving cash or stock of such third party in exchange for their shares or (b) the other party has endorsed or otherwise agreed to\nsupport the tender offer of a third party which if successful would result in the third party owning a majority of its outstanding stock. Except as\nprovided above, each party also agrees not to request the other party (or its Representatives) to amend or waive any provision of this paragraph.\nNotwithstanding the foregoing, (1) the Representative of party that is an investment banking., law, or independent accounting firm may after the\ntermination of this Agreement request that the other party consent that such firm may advise a third party with respect to the other party and not be in\nviolation of this Section 9 and the other party agrees in good faith to consider such request and (2) either party may vote shares of the other party\nacquired after the date of this Agreement with the approval of the other party.\n10.0 NON-SOLICITATION. Each party agrees not to solicit for employment any employees of the other party to whom such party may be\nintroduced or with whom such party otherwise had contact as a result of such party’s consideration of a Transaction until\nPage 3 of 4\none year from the date of this Agreement, provided that such party shall not be restricted in any general solicitation for employees (including through\nthe use of employment agencies) not specifically directed at any such persons, and provided further that such party shall not be restricted in hiring\nany such person who responds to any such general solicitation.\n11.0 ANTITRUST COMPLIANCE. As the parties may be deemed to be competitors in some product lines, they agree that disclosures of\ncompetitively sensitive Evaluation Material (e.g., information concerning prices, pricing plans and strategies, bidding and costs for competitive\nproduct lines) should not occur until the parties have determined based upon their due diligence that there is a reasonable likelihood that they will\nwant to engage in a Transaction and that such disclosure is necessary in order for the parties to evaluate the business and prospects and hence\nwhether to undertake a Transaction. The parties further agree that any such disclosures will be made only in accordance with applicable antitrust\nlaws. The parties understand that any Transaction may be subject to the US Hart-Scott-Rodino Act and require that Notification and Report Forms be\nsubmitted to the antitrust authorities. The parties further understand that the definitive agreement concerning a Transaction will contain further\nprovisions on the sharing of competitively sensitive Evaluation Material in order to ensure compliance with all applicable antitrust laws until the\nTransaction closes (or in the event the Transaction does not close). The parties may determine that, in order to evaluate the transaction under antitrust\nor competition laws, it would further their common interest to exchange more detailed information under appropriate conditions.\n12.0 ATTORNEY CLIENT PRIVILEGE. To the extent that any Evaluation Material may include material or information that is subject to\nthe attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or\ngovernmental investigations, the parties hereby agree and acknowledge that the sharing of such material is not intended to, and shall not, waive or\ndiminish in any way the confidentiality of such material or its continued privilege. Any Evaluation Material provided by Discloser that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection and nothing\nin this agreement shall obligate any party to reveal material or information that is subject to the attorney-client privilege, work product doctrine or\nother applicable privilege.\n“ON”\nBy: /s/ KEITH JACKSON\nKeith Jackson\nNAME (PRINT OR TYPE)\nCEO\nTITLE\n“COMPANY”\nBy: /s/ ROBERT V. DICKINSON\nRobert V. Dickinson\nNAME (PRINT OR TYPE)\nPresident and CEO\nTITLE\nPage 4 of 4	EX-99.(D)(4) 9 dex99d4.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(4)\nMUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\nThis MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT is made to be effective on 30th day of April, 2009, between California\nMicro Devices Corporation a Delaware corporation having its principal place of business at 490 N. McCarthy Blvd., #100, Milpitas, CA 95035\ntogether with its Affiliates (the "Company"), and ON Semiconductor Corporation, a Delaware corporation having its principal place of business at\n5005 East McDowell Road, Phoenix, AZ 85008 USA together with its Affiliates ("ON"). ON and the Company propose to enter into discussions\nconcerning a corporate strategic transaction in which ON would acquire the Company via merger (a "Transaction"). In these discussions, each party\n(the "Discloser"") will disclose information to the other party (the "Recipient").\n1.0 DEFINITIONS. The term "Evaluation Material" shall mean information relating to the Discloser provided to the Recipient, and any other\ninformation derived by the Recipient or its directors, officers, employees, financial advisors, independent auditors, legal counsel or other agents or\nrepresentatives engaged for the Purpose (its "Representatives") from the foregoing information related to the Discloser. The parties shall use\ncommercially reasonable efforts so that Evaluation Material provided in written form (including where provided in electronic or soft copy form) is\nlabeled as confidential or proprietary and Evaluation Material provided orally is designated as confidential or proprietary at the time of disclosure;\nprovided, however, that failure to do so shall not impact whether such information is Evaluation Material. "Affiliate" shall have the meaning given\nsuch term in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended (the "1934 Act").\n2.0 PURPOSE. Each party agrees not to use, or allow the use by any of its Representatives, any portion of the other party's Evaluation\nMaterial for any purpose other than evaluating a possible Transaction (the "Purpose"). Thus, for example, the Recipient will not interfere with any\nbusiness of Discloser through the use of any Evaluation Material or knowledge acquired under this Agreement nor use any such Evaluation Material\nfor its own account other than for the Purpose. In furtherance of the Purpose and subject to the terms and conditions of this Agreement, each party\nagrees to make available to the other party certain Evaluation Material.\n3.0 OBLIGATIONS OF CONFIDENTIALITY; LIMITATION OF USE.\n3.1 Each party agrees to keep confidential, and not to disclose or allow disclosure by any of its Representatives to others of any portion of, the\nother party's Evaluation Material, except as provided for in this Agreement and except to its Representatives on a need to know basis after they have\nbeen informed of and have agreed to abide by the confidentiality and use restrictions in this Agreement. Each party shall be responsible for any\nbreach of this Agreement by its Representatives or Affiliates. Recipient shall protect the Evaluation Material with at least the same standard of care\nas it exercises to protect its own confidential information of like importance, but in no event less than reasonable care.\n3.2 Without limiting Section 3.1 above, a party will not, nor will it allow any of its Representatives to, (except as provided for in this\nAgreement or as required by applicable law or legal process) disclose to any third party, any information regarding the Transaction or any\ninformation relating in any way to the Evaluation Material, including, without limitation (i) that any investigations, discussions or negotiations\nare\ntaking or have taken place concerning a possible Transaction, including the status thereof or the termination of such discussions or negotiations,\n(ii) any of the terms, conditions or other facts with respect to any such possible Transaction or its consideration of a possible Transaction, (iii) that\nthis Agreement exists, that Evaluation Material exist or has been requested or made available or (iv) any opinion or view with respect to the\nTransaction or the Evaluation Material.\n3.3 The Recipient will only make such number of copies of the Evaluation Material as are necessary for the Purpose. Recipient shall reproduce\nand include in all copies of Evaluation Material prepared by Recipient the copyright notices and proprietary legends of Discloser as they appear\ntherein as furnished to Recipient by Discloser. Recipient shall not remove any proprietary, copyright, mask work, trade secret or other legend from\nany form of Evaluation Material. The Recipient shall not attempt to reverse-engineer any Evaluation Material and/or tangible objects containing the\nEvaluation Material.\n3.4\nRecipient shall have no obligation hereunder as to Evaluation Material that (i) is known to Recipient at the time of disclosure,\nas\nevidenced\nby written documentation or other reasonably convincing proof; (ii) the Recipient independently develops without use of Evaluation Material;\n(iii) becomes rightfully known to Recipient without, to the Recipient's knowledge, any confidentiality obligation; or (iv) is or becomes publicly\nknown through no wrongful act or omission of the Recipient.\n3.5 Each party hereby acknowledges that it is aware, and further agrees that it will advise its Representatives, that US Federal and state\nsecurities laws limit the circumstances in which any person who has material, non-public information about a company from purchasing or selling\nsecurities of such a company and prohibit any such person from communicating such information to any other\nPage 1 of 4\nperson under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities or derivative securities\nrelating to such securities.\n4.0 TRANSACTION AGREEMENT. Each party agrees that no contract or agreement providing for a Transaction shall be deemed to exist\nbetween the parties and/or any of the parties' stockholders unless and until a detailed definitive written agreement providing for a Transaction (a\n"Transaction Agreement") has been executed and delivered by both parties, and each party hereby waives, in advance, any claims (including,\nwithout limitation, claims for breach of contract) in connection with any possible Transaction unless and until the parties shall have entered into such\ndefinitive Transaction Agreement. Each party also agrees that unless and until such definitive Transaction Agreement has been executed and\ndelivered by both parties, neither party has any legal obligation of any kind whatsoever with respect to any Transaction by virtue of this Agreement\nor any other written or oral expression with respect to such Transaction except, in the case of this Agreement, for the matters specifically agreed to\nherein. The term "Transaction Agreement" does not include an executed letter of intent or any other preliminary written agreement, nor does it\ninclude any written or oral acceptance of any offer or bid by any party.\n5.0 JUDICIAL OR GOVERNMENTAL DISCLOSURE. If any party or any of its Representatives becomes legally compelled (by judicial\nor governmental request, requirement or order, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar\nprocess) to disclose any of the other party's Evaluation Material, or is threatened to become so legally compelled, such party shall provide the other\nparty with prompt prior written notice so that the other party may attempt to prevent, and/or assist such party in its attempts to prevent, such legal\ncompulsion and such party may ultimately disclose only that portion of the other party's Evaluation Material that is legally required and shall\nexercise best efforts to obtain assurance that confidential treatment will be accorded the other party's Evaluation Material. In the event either party is\nadvised by counsel that such party is required by law to make any public disclosure otherwise prohibited by this Agreement, such party may make\nsuch public disclosure but shall give as much prior notice as is practicable to the other party and shall give the other party a reasonable opportunity\nto\ncomment on or to attempt to prevent the proposed disclosure.\n6.0 TERM; TERMINATION.\n6.1This Agreement shall terminate in its entirety one year after the date of this Agreement or, if earlier, upon the execution and delivery of\na\nTransaction Agreement, unless the Transaction Agreement expressly otherwise provides.\n6.2 Either party may terminate this Agreement for any or no reason, by providing written notice of termination to the other party. The\nobligations of each of the parties under this Agreement shall remain in effect and survive any such termination for a period of three (3) years from\nthe date of this Agreement, except as otherwise stated in this Agreement.\n6.3 Each party agrees that if this Agreement is terminated or if the other party so requests in writing, Recipient shall promptly return to\nDiscloser (or at Recipient's option destroy, subject to the next sentence of this Section, with such destruction to be certified to Discloser by an officer\nof Recipient) all copies of the Discloser's Evaluation Material in its possession or in the possession of its Representatives. Notwithstanding the\nforegoing, Recipient may, pursuant to its standard retention policy, retain one archival copy and copies contained on routine back-ups of its email\nsystem subject to the confidentiality provisions of this Agreement.\n7.0 GENERAL.\n7.1. Assignment. Neither party may assign or transfer any of its rights or obligations under this Agreement.\n7.2 Waiver. No failure or delay by either party regarding any right, power or privilege hereunder shall operate as a waiver thereof and no single\nor\npartial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n7.3 No Other Rights. The Recipient does not acquire any license, rights or title in any Evaluation Material, except the limited right to use as\ndescribed above. The parties agree that nothing herein (i) requires the disclosure of any Evaluation Material to the other party or (ii) requires either\nparty to proceed with any transaction or relationship. Further, each party understands and acknowledges that neither party makes any representation\nor warranty, express or implied, as to the accuracy or completeness of the Evaluation Material exchanged. Evaluation Material IS DELIVERED "AS\nIS," AND ALL REPRESENTATIVES AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING FITNESS FOR A PARTICULAR\nPURPOSE, MERCHANTABILITY AND NONINFRINGEMENT ARE HEREBY DISCLAIMED except that, as its sole representation and\nwarranty, Discloser represents and warrants that it and its Representatives may rightfully disclose and make available the Evaluation Material\nit\ndiscloses to the Recipient without violating any contractual, legal, fiduciary, or other obligation or restriction applicable to the Discloser. Each party\nagrees that neither party shall have any liability to the other party relating to or resulting from the use permitted under this Agreement of or reliance\nupon such other party's Evaluation Material or any errors therein or omissions therefrom. Only those subsequent\nPage 2 of 4\nrepresentations or warranties, which are made in a final definitive agreement regarding a possible transaction or business combination, when, and\nif\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n7.4 No Agency. The parties hereto are independent contractors, and nothing herein shall be construed to create an agency, joint venture,\npartnership or other form of business association between the parties hereto.\n75. No Export. The parties agree to comply with all laws, rules and regulations applicable to the export or re-export of Evaluation Material,\nincluding obtaining any export licenses or other permissions required.\n7.6 Enforcement. Recipient acknowledges and agrees that in the event of an unauthorized use, reproduction, distribution or disclosure of any\nEvaluation Material, Discloser will not have an adequate remedy at law, and, therefore, injunctive or other equitable relief would be appropriate to\nrestrain such use, reproduction, distribution or disclosure, threatened or actual. Such remedy shall not be deemed to be the exclusive remedy for\nbreach of this Agreement, but shall be in addition to all other remedies available at law or equity to the Discloser.\n7.7. Notices. All notices or demands hereunder shall be in writing and sent to the other party and will be deemed delivered upon\nacknowledgment of receipt by the other party. Notices shall be sent to the addresses in the introduction or such other address as the parties provide\none another.\n7.8. Governing Law and Venue. This Agreement shall be governed by and interpreted in accordance with the laws of the state of Delaware.\nThe parties hereby submit to the jurisdiction of, and waive venue objections to, the Delaware Court of Chancery in the State of Delaware for the\npurposes of any action suit, or proceeding arising out of or related to this Agreement and agree that they will commence any such matter\nin\nconnection with this Agreement only in such courts.\n7.9. Unenforceable Provisions. In the event that any provisions of this Agreement are held to be unenforceable, the remainder of this\nAgreement shall remain in full force and effect, and the parties agree to negotiate in good faith substitute enforceable provisions that most nearly\neffect the intent of the parties.\n8.0 COMPLETE AGREEMENT. This Agreement constitutes the entire agreement and understanding of the parties concerning its subject\nmatter, superseding all previous representations, agreements, and understandings, whether oral or written, relating to the subject matter hereof. Any\namendment to this Agreement shall be in a writing signed by both parties.\n9.0 STAND-STILL. Each party agrees that, until one year from the date of this Agreement, such party and its Representatives and its\n"Affiliates" as defined in the Securities Exchange Act of 1934, as amended (the "1934 Act"), will not in any manner, directly or indirectly, without\nthe prior written invitation or approval of the Board of Directors of the other party (a) effect or seek, offer or propose (whether publicly or otherwise)\nto effect, or cause or participate in or in any way knowingly assist any other person to effect or seek, offer or propose (whether publicly or otherwise)\nto effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or a material portion of the assets of the other party or\nany of its subsidiaries; (ii) any tender or exchange offer, merger or other business combination involving the other party or any of its subsidiaries;\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other party or any of its\nsubsidiaries; or (iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of\nthe other party or otherwise seek to advise or influence any person with respect to the voting of any securities of the other party; (b) form, join or\nin\nany way participate) in a "group" (as defined under the 1934 Act) in connection with any securities of the other party; (c) otherwise act, alone or in\nconcert with others, or seek to control or influence the Board of Directors or policies of the other party; (d) disclose any intention, plan or\narrangement inconsistent with the foregoing; (e) take any action which might force the other party to make a public announcement regarding any of\nthe types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing;\nprovided, however, that the foregoing obligations shall terminate as to a party if the other party publicly discloses that (a) it has entered into a merger\nagreement or an agreement for the sale of all or substantially all of that party's assets with a third party which would result in that party's\nstockholders receiving cash or stock of such third party in exchange for their shares or (b) the other party has endorsed or otherwise agreed to\nsupport the tender offer of a third party which if successful would result in the third party owning a majority of its outstanding stock. Except as\nprovided above, each party also agrees not to request the other party (or its Representatives) to amend or waive any provision of this paragraph.\nNotwithstanding the foregoing, (1) the Representative of party that is an investment banking., law, or independent accounting firm may after the\ntermination of this Agreement request that the other party consent that such firm may advise a third party with respect to the other party and not\nbe\nin\nviolation of this Section 9 and the other party agrees in good faith to consider such request and (2) either party may vote shares of the other party\nacquired after the date of this Agreement with the approval of the other party.\n10.0 NON-SOLICITATION. Each party agrees not to solicit for employment any employees of the other party to whom such party may be\nintroduced or with whom such party otherwise had contact as a result of such party's consideration of a Transaction until\nPage 3 of 4\none year from the date of this Agreement, provided that such party shall not be restricted in any general solicitation for employees (including through\nthe use of employment agencies) not specifically directed at any such persons, and provided further that such party shall not be restricted in hiring\nany such person who responds to any such general solicitation.\n11.0 ANTITRUST COMPLIANCE. As the parties may be deemed to be competitors in some product lines, they agree that disclosures of\ncompetitively sensitive Evaluation Material (e.g., information concerning prices, pricing plans and strategies, bidding and costs for competitive\nproduct lines) should not occur until the parties have determined based upon their due diligence that there is a reasonable likelihood that they will\nwant to engage in a Transaction and that such disclosure is necessary in order for the parties to evaluate the business and prospects and hence\nwhether to undertake a Transaction. The parties further agree that any such disclosures will be made only in accordance with applicable antitrust\nlaws. The parties understand that any Transaction may be subject to the US Hart-Scott-Rodino Act and require that Notification and Report Forms be\nsubmitted to the antitrust authorities. The parties further understand that the definitive agreement concerning a Transaction will contain further\nprovisions on the sharing of competitively sensitive Evaluation Material in order to ensure compliance with all applicable antitrust laws until the\nTransaction closes (or in the event the Transaction does not close). The parties may determine that, in order to evaluate the transaction under antitrust\nor competition laws, it would further their common interest to exchange more detailed information under appropriate conditions.\n12.0 ATTORNEY CLIENT PRIVILEGE. To the extent that any Evaluation Material may include material or information that is subject to\nthe attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or\ngovernmental investigations, the parties hereby agree and acknowledge that the sharing of such material is not intended to, and shall not, waive\nor\ndiminish in any way the confidentiality of such material or its continued privilege. Any Evaluation Material provided by Discloser that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection and nothing\nin this agreement shall obligate any party to reveal material or information that is subject to the attorney-client privilege, work product doctrine or\nother applicable privilege.\n"ON"\nBy: /s/ KEITH JACKSON\nKeith Jackson\nNAME (PRINT OR TYPE)\nCEO\nTITLE\n"COMPANY"\nBy: /s/ ROBERT V. DICKINSON\nRobert V. Dickinson\nNAME (PRINT OR TYPE)\nPresident and CEO\nTITLE\nPage 4 of 4	EX-99.(D)(4) 9 dex99d4.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(4)\nMUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\nThis MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT is made to be effective on 30th day of April, 2009, between California\nMicro Devices Corporation , a Delaware corporation having its principal place of business at 490 N. McCarthy Blvd., #100, Milpitas, CA 95035\ntogether with its Affiliates (the “Company”), and ON Semiconductor Corporation, a Delaware corporation having its principal place of business at\n5005 East McDowell Road, Phoenix, AZ 85008 USA together with its Affiliates (“ON”). ON and the Company propose to enter into discussions\nconcerning a corporate strategic transaction in which ON would acquire the Company via merger (a “Transaction”). In these discussions, each party\n(the “Discloser’”) will disclose information to the other party (the “Recipient”).\n1.0 DEFINITIONS. The term “Evaluation Material” shall mean information relating to the Discloser provided to the Recipient, and any other\ninformation derived by the Recipient or its directors, officers, employees, financial advisors, independent auditors, legal counsel or other agents or\nrepresentatives engaged for the Purpose (its “Representatives”) from the foregoing information related to the Discloser. The parties shall use\ncommercially reasonable efforts so that Evaluation Material provided in written form (including where provided in electronic or soft copy form) is\nlabeled as confidential or proprietary and Evaluation Material provided orally is designated as confidential or proprietary at the time of disclosure;\nprovided, however, that failure to do so shall not impact whether such information is Evaluation Material. “Affiliate” shall have the meaning given\nsuch term in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended (the “1934 Act”).\n2.0 PURPOSE. Each party agrees not to use, or allow the use by any of its Representatives, any portion of the other party’s Evaluation\nMaterial for any purpose other than evaluating a possible Transaction (the “Purpose”). Thus, for example, the Recipient will not interfere with any\nbusiness of Discloser through the use of any Evaluation Material or knowledge acquired under this Agreement nor use any such Evaluation Material\nfor its own account other than for the Purpose. In furtherance of the Purpose and subject to the terms and conditions of this Agreement, each party\nagrees to make available to the other party certain Evaluation Material.\n3.0 OBLIGATIONS OF CONFIDENTIALITY; LIMITATION OF USE.\n3.1 Each party agrees to keep confidential, and not to disclose or allow disclosure by any of its Representatives to others of any portion of, the\nother party’s Evaluation Material, except as provided for in this Agreement and except to its Representatives on a need to know basis after they have\nbeen informed of and have agreed to abide by the confidentiality and use restrictions in this Agreement. Each party shall be responsible for any\nbreach of this Agreement by its Representatives or Affiliates. Recipient shall protect the Evaluation Material with at least the same standard of care\nas it exercises to protect its own confidential information of like importance, but in no event less than reasonable care.\n3.2 Without limiting Section 3.1 above, a party will not, nor will it allow any of its Representatives to, (except as provided for in this\nAgreement or as required by applicable law or legal process) disclose to any third party, any information regarding the Transaction or any\ninformation relating in any way to the Evaluation Material, including, without limitation (i) that any investigations, discussions or negotiations are\ntaking or have taken place concerning a possible Transaction, including the status thereof or the termination of such discussions or negotiations,\n(ii) any of the terms, conditions or other facts with respect to any such possible Transaction or its consideration of a possible Transaction, (iii) that\nthis Agreement exists, that Evaluation Material exist or has been requested or made available or (iv) any opinion or view with respect to the\nTransaction or the Evaluation Material.\n3.3 The Recipient will only make such number of copies of the Evaluation Material as are necessary for the Purpose. Recipient shall reproduce\nand include in all copies of Evaluation Material prepared by Recipient the copyright notices and proprietary legends of Discloser as they appear\ntherein as furnished to Recipient by Discloser. Recipient shall not remove any proprietary, copyright, mask work, trade secret or other legend from\nany form of Evaluation Material. The Recipient shall not attempt to reverse-engineer any Evaluation Material and/or tangible objects containing the\nEvaluation Material.\n3.4 Recipient shall have no obligation hereunder as to Evaluation Material that (i) is known to Recipient at the time of disclosure, as evidenced\nby written documentation or other reasonably convincing proof; (ii) the Recipient independently develops without use of Evaluation Material;\n(iii) becomes rightfully known to Recipient without, to the Recipient’s knowledge, any confidentiality obligation; or (iv) is or becomes publicly\nknown through no wrongful act or omission of the Recipient.\n3.5 Each party hereby acknowledges that it is aware, and further agrees that it will advise its Representatives, that US Federal and state\nsecurities laws limit the circumstances in which any person who has material, non-public information about a company from purchasing or selling\nsecurities of such a company and prohibit any such person from communicating such information to any other\nPage1of4\nperson under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities or derivative securities\nrelating to such securities.\n4.0 TRANSACTION AGREEMENT. Each party agrees that no contract or agreement providing for a Transaction shall be deemed to exist\nbetween the parties and/or any of the parties’ stockholders unless and until a detailed definitive written agreement providing for a Transaction (a\n“Transaction Agreement”) has been executed and delivered by both parties, and each party hereby waives, in advance, any claims (including,\nwithout limitation, claims for breach of contract) in connection with any possible Transaction unless and until the parties shall have entered into such\ndefinitive Transaction Agreement. Each party also agrees that unless and until such definitive Transaction Agreement has been executed and\ndelivered by both parties, neither party has any legal obligation of any kind whatsoever with respect to any Transaction by virtue of this Agreement\nor any other written or oral expression with respect to such Transaction except, in the case of this Agreement, for the matters specifically agreed to\nherein. The term “Transaction Agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it\ninclude any written or oral acceptance of any offer or bid by any party.\n5.0 JUDICIAL OR GOVERNMENTAL DISCLOSURE. If any party or any of its Representatives becomes legally compelled (by judicial\nor governmental request, requirement or order, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar\nprocess) to disclose any of the other party’s Evaluation Material, or is threatened to become so legally compelled, such party shall provide the other\nparty with prompt prior written notice so that the other party may attempt to prevent, and/or assist such party in its attempts to prevent, such legal\ncompulsion and such party may ultimately disclose only that portion of the other party’s Evaluation Material that is legally required and shall\nexercise best efforts to obtain assurance that confidential treatment will be accorded the other party’s Evaluation Material. In the event either party is\nadvised by counsel that such party is required by law to make any public disclosure otherwise prohibited by this Agreement, such party may make\nsuch public disclosure but shall give as much prior notice as is practicable to the other party and shall give the other party a reasonable opportunity to\ncomment on or to attempt to prevent the proposed disclosure.\n6.0 TERM; TERMINATION.\n6.1This Agreement shall terminate in its entirety one year after the date of this Agreement or, if earlier, upon the execution and delivery of a\nTransaction Agreement, unless the Transaction Agreement expressly otherwise provides.\n6.2 Either party may terminate this Agreement for any or no reason, by providing written notice of termination to the other party. The\nobligations of each of the parties under this Agreement shall remain in effect and survive any such termination for a period of three (3) years from\nthe date of this Agreement, except as otherwise stated in this Agreement.\n6.3 Each party agrees that if this Agreement is terminated or if the other party so requests in writing, Recipient shall promptly return to\nDiscloser (or at Recipient’s option destroy, subject to the next sentence of this Section, with such destruction to be certified to Discloser by an officer\nof Recipient) all copies of the Discloser’s Evaluation Material in its possession or in the possession of its Representatives. Notwithstanding the\nforegoing, Recipient may, pursuant to its standard retention policy, retain one archival copy and copies contained on routine back-ups of its email\nsystem subject to the confidentiality provisions of this Agreement.\n7.0 GENERAL.\n7.1. Assignment. Neither party may assign or transfer any of its rights or obligations under this Agreement.\n7.2 Waiver. No failure or delay by either party regarding any right, power or privilege hereunder shall operate as a waiver thereof and no single\nor partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n7.3 No Other Rights. The Recipient does not acquire any license, rights or title in any Evaluation Material, except the limited right to use as\ndescribed above. The parties agree that nothing herein (i) requires the disclosure of any Evaluation Material to the other party or (ii) requires either\nparty to proceed with any transaction or relationship. Further, each party understands and acknowledges that neither party makes any representation\nor warranty, express or implied, as to the accuracy or completeness of the Evaluation Material exchanged. Evaluation Material IS DELIVERED “AS\nIS,” AND ALL REPRESENTATIVES AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING FITNESS FOR A PARTICULAR\nPURPOSE, MERCHANTABILITY AND NONINFRINGEMENT ARE HEREBY DISCLAIMED except that, as its sole representation and\nwarranty, Discloser represents and warrants that it and its Representatives may rightfully disclose and make available the Evaluation Material it\ndiscloses to the Recipient without violating any contractual, legal, fiduciary, or other obligation or restriction applicable to the Discloser. Each party\nagrees that neither party shall have any liability to the other party relating to or resulting from the use permitted under this Agreement of or reliance\nupon such other party’s Evaluation Material or any errors therein or omissions therefrom. Only those subsequent\nPage2of4\nrepresentations or warranties, which are made in a final definitive agreement regarding a possible transaction or business combination, when, and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n7.4 No Agency. The parties hereto are independent contractors, and nothing herein shall be construed to create an agency, joint venture,\npartnership or other form of business association between the parties hereto.\n75. No Export. The parties agree to comply with all laws, rules and regulations applicable to the export or re-export of Evaluation Material,\nincluding obtaining any export licenses or other permissions required.\n7.6 Enforcement. Recipient acknowledges and agrees that in the event of an unauthorized use, reproduction, distribution or disclosure of any\nEvaluation Material, Discloser will not have an adequate remedy at law, and, therefore, injunctive or other equitable relief would be appropriate to\nrestrain such use, reproduction, distribution or disclosure, threatened or actual. Such remedy shall not be deemed to be the exclusive remedy for\nbreach of this Agreement, but shall be in addition to all other remedies available at law or equity to the Discloser.\n7.7. Notices. All notices or demands hereunder shall be in writing and sent to the other party and will be deemed delivered upon\nacknowledgment of receipt by the other party. Notices shall be sent to the addresses in the introduction or such other address as the parties provide\none another.\n7.8. Governing Law and Venue. This Agreement shall be governed by and interpreted in accordance with the laws of the state of Delaware.\nThe parties hereby submit to the jurisdiction of, and waive venue objections to, the Delaware Court of Chancery in the State of Delaware for the\npurposes of any action , suit, or proceeding arising out of or related to this Agreement and agree that they will commence any such matter in\nconnection with this Agreement only in such courts.\n7.9. Unenforceable Provisions. In the event that any provisions of this Agreement are held to be unenforceable, the remainder of this\nAgreement shall remain in full force and effect, and the parties agree to negotiate in good faith substitute enforceable provisions that most nearly\neffect the intent of the parties.\n8.0 COMPLETE AGREEMENT. This Agreement constitutes the entire agreement and understanding of the parties concerning its subject\nmatter, superseding all previous representations, agreements, and understandings, whether oral or written, relating to the subject matter hereof. Any\namendment to this Agreement shall be in a writing signed by both parties.\n9.0 STAND-STILL. Each party agrees that, until one year from the date of this Agreement, such party and its Representatives and its\n“Affiliates” as defined in the Securities Exchange Act of 1934, as amended (the “1934 Act”), will not in any manner, directly or indirectly, without\nthe prior written invitation or approval of the Board of Directors of the other party (a) effect or seek, offer or propose (whether publicly or otherwise)\nto effect, or cause or participate in or in any way knowingly assist any other person to effect or seek, offer or propose (whether publicly or otherwise)\nto effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof) or a material portion of the assets of the other party or\nany of its subsidiaries; (ii) any tender or exchange offer, merger or other business combination involving the other party or any of its subsidiaries;\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other party or any of its\nsubsidiaries; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the SEC) or consents to vote any voting securities of\nthe other party or otherwise seek to advise or influence any person with respect to the voting of any securities of the other party; (b) form, join or in\nany way participate) in a “group” (as defined under the 1934 Act) in connection with any securities of the other party; (c) otherwise act, alone or in\nconcert with others, or seek to control or influence the Board of Directors or policies of the other party; (d) disclose any intention, plan or\narrangement inconsistent with the foregoing; (e) take any action which might force the other party to make a public announcement regarding any of\nthe types of matters set forth in (a) above; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing;\nprovided, however, that the foregoing obligations shall terminate as to a party if the other party publicly discloses that (a) it has entered into a merger\nagreement or an agreement for the sale of all or substantially all of that party’s assets with a third party which would result in that party’s\nstockholders receiving cash or stock of such third party in exchange for their shares or (b) the other party has endorsed or otherwise agreed to\nsupport the tender offer of a third party which if successful would result in the third party owning a majority of its outstanding stock. Except as\nprovided above, each party also agrees not to request the other party (or its Representatives) to amend or waive any provision of this paragraph.\nNotwithstanding the foregoing, (1) the Representative of party that is an investment banking., law, or independent accounting firm may after the\ntermination of this Agreement request that the other party consent that such firm may advise a third party with respect to the other party and not be in\nviolation of this Section 9 and the other party agrees in good faith to consider such request and (2) either party may vote shares of the other party\nacquired after the date of this Agreement with the approval of the other party.\n10.0 NON-SOLICITATION. Each party agrees not to solicit for employment any employees of the other party to whom such party may be\nintroduced or with whom such party otherwise had contact as a result of such party’s consideration of a Transaction until\nPage3of4\none year from the date of this Agreement, provided that such party shall not be restricted in any general solicitation for employees (including through\nthe use of employment agencies) not specifically directed at any such persons, and provided further that such party shall not be restricted in hiring\nany such person who responds to any such general solicitation.\n11.0 ANTITRUST COMPLIANCE. As the parties may be deemed to be competitors in some product lines, they agree that disclosures of\ncompetitively sensitive Evaluation Material (e.g ., information concerning prices, pricing plans and strategies, bidding and costs for competitive\nproduct lines) should not occur until the parties have determined based upon their due diligence that there is a reasonable likelihood that they will\nwant to engage in a Transaction and that such disclosure is necessary in order for the parties to evaluate the business and prospects and hence\nwhether to undertake a Transaction. The parties further agree that any such disclosures will be made only in accordance with applicable antitrust\nlaws. The parties understand that any Transaction may be subject to the US Hart-Scott-Rodino Act and require that Notification and Report Forms be\nsubmitted to the antitrust authorities. The parties further understand that the definitive agreement concerning a Transaction will contain further\nprovisions on the sharing of competitively sensitive Evaluation Material in order to ensure compliance with all applicable antitrust laws until the\nTransaction closes (or in the event the Transaction does not close). The parties may determine that, in order to evaluate the transaction under antitrust\nor competition laws, it would further their common interest to exchange more detailed information under appropriate conditions.\n12.0 ATTORNEY CLIENT PRIVILEGE. To the extent that any Evaluation Material may include material or information that is subject to\nthe attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or\ngovernmental investigations, the parties hereby agree and acknowledge that the sharing of such material is not intended to, and shall not, waive or\ndiminish in any way the confidentiality of such material or its continued privilege. Any Evaluation Material provided by Discloser that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection and nothing\nin this agreement shall obligate any party to reveal material or information that is subject to the attorney-client privilege, work product doctrine or\nother applicable privilege.\n“ON”\nBy: /s/ KEITH JACKSON\nKeith Jackson\nNAME (PRINT OR TYPE)\nCEO\nTITLE\n“COMPANY”\nBy: /s/ ROBERT V. DICKINSON\nRobert V. Dickinson\nNAME (PRINT OR TYPE)\nPresident and CEO\nTITLE\nPage4of4
+14b0b2208aaab4da5388590f9ed8e03c.pdf	effective_date jurisdiction party term	EX-10 .2 3 ex10-2.htm EXHIBIT 10.2\nExhibit 10.2\nEXHIBIT A\nCONFIDENTIAL INFORMATION, NON-DISCLOSURE, NON-SOLICITATION,\nNON-COMPETE, AND RIGHTS TO INTELLECTUAL PROPERTY AGREEMENT\nThis CONFIDENTIAL INFORMATION, NON-DISCLOSURE, NON-SOLICITATION, NON-COMPETE, AND RIGHTS\nTO INTELLECTUAL PROPERTY AGREEMENT (hereinafter this “Agreement” or this “Confidentiality Agreement”) is made as of June 22,\n2016, by and between Nat Krishnamurti, who currently resides at [ ] (“Employee”) and Interpace Diagnostics Group, Inc. (formerly PDI,\nInc. and hereinafter together with PDI, Inc., Interpace Diagnostics Corporation, and Interpace Diagnostics, LLC referred to as “Employer”),\nhaving its principal place of business at Morris Corporate Center 1-Building A/B, 300 Interpace Parkway, Parsippany, New Jersey 07054\n(collectively the “Parties”).\nWHEREAS, Employee is presently serving and continues to serve as Chief Financial Officer, Treasurer, and Secretary of\nEmployer;\nWHEREAS, Employer will continue to employ Employee in a position of trust and confidence to aid Employer in its\nBusiness;\nWHEREAS, Employer desires to receive from Employee a covenant not to disclose certain information relating to\nEmployer ’s Business and certain other covenants;\nWHEREAS, as a material inducement to Employer to employ and continue to employ Employee and pay Employee salary\nand other remuneration and benefits during his employment, Employee has agreed to such covenants; and\nWHEREAS, Employer and Employee desire to set forth, in writing, the terms and conditions of their agreements and\nunderstandings with respect to such covenants.\nNOW, THEREFORE, in consideration of the foregoing, of the mutual promises herein contained, and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto intending to be legally bound, agree as\nfollows:\n1. Business. For purposes of this Agreement, the Business of Employer consists of developing and conducting molecular\ndiagnostic testing to assist in the treatment of pancreatic, biliary, esophageal and thyroid cancers (the “Business”). The Business is highly\ncompetitive and specialized involving highly sensitive information.\n2. Employer. As used herein, the term “Employer” shall mean Interpace Diagnostics Group, Inc. (formerly and including\nPDI, Inc.); Interpace Diagnostics, LLC; Interpace Diagnostics Corporation; and any and all related or affiliated entities, including, but not\nlimited to any other business entity which is, was, or becomes a predecessor, subsidiary, or parent of the above-listed entities and/or which is,\nwas, or becomes an affiliate of one or more of the above-listed entities by virtue of common (although not identical) ownership and for which\nEmployee is providing services in any form during his employment with Employer.\n1\n3. Notice.\nAny notice required to, or permitted to, be given hereunder shall be sufficient if in writing (a) delivered\npersonally, (b) sent by first class certified mail, return receipt requested, postage and fees prepaid, or (c) sent by prepaid overnight delivery\nservice, to the parties at the following addresses (or at such other addresses as shall be specified by the parties in a like notice):\nIf to Employer:\nInterpace Diagnostics Group, Inc.\nMorris Corporate Center I\nBuilding A/B\n300 Interpace Parkway\nParsippany, New Jersey 07054\nAttn.: Chief Executive Officer\nIf to Employee:\nNat Krishnamurti\n[]\n[]\nAll notices shall be deemed to have been given upon receipt if delivered personally, or by recognized overnight courier, or five\n(5) days after mailing if mailed.\n4.\nConfidential Information, Non-Disclosure. Employee understands and recognizes that in his position as Chief\nFinancial Officer, Treasurer, and Secretary of Employer, he has been and will be afforded substantial access to Confidential Information (as that\nterm is defined below) the unauthorized use, disclosure and/or publication of which would cause Employer to suffer substantial damage to and\ninterfere with the current or contemplated Business of Employer and cause irreparable injury to Employer. Employee further understands and\nrecognizes, therefore, that it is in Employer’s legitimate business interest to restrict Employee’s use of Confidential Information for any purposes\nother than the discharge of Employee’s duties at Employer in furtherance of the Business, and to limit any potential appropriation of\nConfidential Information by Employee for the benefit of Employer’s competitors and to the detriment of Employer. Accordingly, Employee\nagrees as follows:\na. During and after Employee’s employment with Employer, Employee will not, without the prior written consent\nof Employer, or as may otherwise be required by law or legal process, communicate or disclose to any other person or company, or use for\nEmployee’s own personal benefit, except as may be necessary in the performance of Employee’s duties as an employee of Employer, any\nConfidential Information disclosed to him or of which Employee became aware or developed or was given access to by reason of Employee’s\nemployment or association with Employer.\nb. The term “Confidential Information” means any and all data and information relating to Employer and/or its\nBusiness (whether or not it constitutes a trade secret) or data and information received by Employer from third parties including, but not limited\nto, customers, clients, patients and business partners in confidence (or subject to a Non-Disclosure covenant), which is, or has been, disclosed to\nEmployee or of which Employee became or becomes aware as a consequence of his employment relationship with Employer, and which has\nvalue to Employer and is not generally known by Employer’s competitors including, but not limited to, information concerning Employer’s\nbusiness, and information of third parties, which Employer is required to maintain as confidential. Confidential Information shall not include\nany data or information that has been disclosed voluntarily to the public by Employer (except when such public disclosure has been made by\nEmployee or some other person without authorization from Employer), or that has been independently developed and disclosed by others, or\nthat otherwise enters the public domain through lawful and legitimate means.\n2\nEmployee hereby expressly agrees that Confidential Information is the exclusive property of Employer, to be held by\nEmployee in trust and solely for Employer’s benefit and shall not be used by Employee or disclosed by Employee to others, either during or\nafter Employee’s employment without Employer’s advance written consent, except where required for Employee to properly perform\nEmployee’s job duties for Employer. This promise is binding on Employee regardless of the reason(s) for the termination of Employee’s\nemployment. Employee further agrees to comply with all rules, policies and procedures established by Employer from time-to-time, which are\ndesigned to protect and ensure the continued confidentiality of the Confidential Information and all applicable law.\nc. Employee understands and agrees that upon termination of Employee’s employment with Employer, Employee\nwill not take with him, or retain, without written authorization from Employer, any documents, files or other property of Employer, and\nEmployee will promptly return to Employer any such documents, files or property in his possession or control, including all copies, extracts,\nreproductions or notes, as may have been made by or on behalf of Employee. If Employee has stored Confidential Information on any personal\ndesktop or laptop devices, Personal Digital Assistants (“PDAs”), mobile/smart phones, external hard drives, “flash” or similar USB storages\ndevices, Fire Wire storage devices, digital music players, digital tapes, floppy diskettes, CDs, DVDs, memory cards, zip diskettes, as well as\nmaintained in personal e-mail accounts (including web based e-mail accounts such as Hotmail, Gmail, Yahoo, etc.) and other electronic or\nonline communications applications, such as text messaging, social media networks (i.e . Facebook, LinkedIn, My Space, etc.), chat rooms and\nsimilar environments and all other media, which can be utilized to store or transmit electronic data and communications (regardless of whether\nthe media utilized is owned by Employer, Employee or a third party, or where the media is located) then Employee must make those devices\navailable to Employer or provide access to those accounts or communications in order to enable Employer to search for such Confidential\nInformation and to remove and/or make complete copies of the media/communications and all information stored to the extent permitted by law\nor to the extent not permitted by law to otherwise arrange for the return and/or removal of such Confidential Information to Employer, as\nappropriate.\nEmployee acknowledges and agrees that this list is not comprehensive and includes technological advancements in methods,\ndevices and locations for storing and communicating data that could include Confidential Information covered by this provision. For this\npurpose, Employee agrees that he has no expectation of privacy with respect to the various media and communications referred to above, except\nto the extent otherwise provided by law.\n3\nIn connection with this Confidentiality Agreement, Employee recognizes that all documents, files and property, which\nEmployee has received or will receive from Employer, including, but not limited to, handbooks, memoranda, policy manuals, product\nspecifications and other materials, with the exception of documents relating to benefits to which Employee might be entitled following the\ntermination of his employment with Employer, are for the exclusive use of Employer and employees discharging their responsibilities on behalf\nof Employer, and that Employee has no claim or right to the continued use, possession or custody of such material following the termination of\nhis employment with Employer.\nIf Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative\ndemand or similar process) to disclose any Confidential Information, Employee shall provide Employer with prompt written notice of such\nrequirement so Employer may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Paragraph 4\nof this Confidentiality Agreement. If such protective order or other remedy is not obtained, or Employer waives compliance with the provisions\nof this Paragraph 4, Employee agrees to furnish only that portion of the Confidential Information, which he is advised by written opinion of\nlegal counsel is legally required and to exercise best efforts to obtain assurances that confidential treatment will be accorded such Confidential\nInformation.\n5. Non-Solicitation. Except as otherwise approved in writing by Employer, Employee agrees that Employee will not,\ndirectly or indirectly, with or through any family member, or former directors, officers or employees of Employer, or acting alone or as a\nmember of a partnership or limited liability company or as an officer, holder of or investor in as much as five (5%) percent of any security of\nany class, director, employee, consultant or representative of any corporation or other business entity at any time during Employee’s\nemployment with Employer, and for a period of two (2) years following cessation of Employee’s employment with Employer for any reason,\ninterfere with, or seek to interfere with the relationship or otherwise alter, limit or terminate such relationship between Employer and the\nfollowing: (a) any employee of Employer or any person who was employed by Employer at any time within one (1) year prior to the cessation\nof Employee’s employment with Employer, which prohibited interference includes inducing or attempting to induce any person to leave\nemployment with Employer or hiring any such person; (b) any of the customers or clients of Employer then existing or existing at any time\nwithin one (1) year prior to the cessation of Employee’s employment with Employer with which Employee personally had contact or access to\nConfidential Information about, or (c) any of the suppliers or licensees of Employer, then existing or existing at any time within one (1) year\nprior to cessation of Employee’s employment with Employer.\n6.\nNon-Competition.\nIt is recognized and understood by the parties hereto that Employee, through Employee’s\nassociation with Employer, has acquired and shall continue to acquire a considerable amount of knowledge and goodwill with respect to the\nBusiness of Employer, as well as access to Employer’s clients and customers, which knowledge, goodwill and relationships are extremely\nvaluable to Employer and which would be extremely detrimental to Employer if used by Employee to compete with Employer. It is therefore\nunderstood and agreed to by the parties hereto that because of the nature of the Business of Employer, it is necessary to afford fair protection to\nEmployer from competition by Employee. Consequently, as a material inducement to employ and continue to employ Employee, Employee\ncovenants and agrees that he will not, directly or indirectly, with or through any family member, or former director, officer or employee of\nEmployer, or acting alone or as a member of a partnership or limited liability company, or as an officer of or investor in as much as five (5%)\npercent of any security of any class, director, employee, consultant or representative of any corporation or other business entity at any time while\nemployed by Employer, and for a period of one (1) year following cessation of Employee’s employment with Employer for any reason, own,\nmanage, operate, control, consult with, or be employed by or with any person, firm, partnership, association, corporation or other business entity\nwhich competes with Employer or performs services which are substantially similar to its Business in the United States of America.\n4\n7. Rights to Intellectual Property. All inventions, improvements, modifications, ideas, styles, trade names and the like,\nwhether or not reduced to writing or stored electronically or otherwise and whether or not protectable by patent, trademark, copyright or other\nintellectual property law, which relate or are susceptible for use directly or indirectly in Employer ’s Business that are originated in whole, or in\npart, by Employee (alone or jointly with others) during his term of employment with Employer, irrespective of whether they were conceived,\ndeveloped, suggested or perfected (i) during Employee’s regular working hours, (ii) with the use of Employer ’s time, materials or facilities or\n(iii) within one (1) year following the termination of Employee’s employment with Employer or otherwise attributable to Employee’s\nemployment with Employer shall become and remain the exclusive property of Employer. If any one or more of the aforementioned are deemed\nin any way to fall within the definition of “work made for hire,” as such term is defined in 17 U.S.C. §101, such work shall be considered a\n“work made for hire,” the copyright of which shall be owned solely by, or assigned or transferred completely and exclusively to Employer. At\nthe request and expense of Employer, Employee shall cooperate with Employer, in applying for, prosecuting, and obtaining patent, trademark,\nservice mark, trade name and copyright registrations in the name of Employer.\nEmployee shall promptly disclose, grant and assign ownership to Employer, for its sole use and benefit, any and all inventions,\nimprovements, information and copyrights (whether patentable or not), which he may develop, acquire, conceive or reduce to practice, while\nemployed by Employer (whether or not during usual working hours) together with all patent applications, letters, patent, copyrights and reissues\nthereof, that may at any time be granted for or upon any such invention, improvement or information; provided, however, that Employee shall\nown any invention, which Employee can demonstrate has no relationship to the Business, and which was neither conceived, nor made by use of\nany of the time, facilities or materials of Employer. In connection therewith:\na.\nEmployee shall without charge, but at the expense of Employer, promptly at all times thereafter execute and\ndeliver such applications, assignments, descriptions and other instruments, as may be reasonably necessary or proper in the opinion of Employer\nto vest title to any such inventions, improvements, technical information, patent applications, patents, copyrights or reissues thereof in\nEmployer, and to enable it to obtain and maintain the entire right and title thereto throughout the world; and\nb. Employee shall render to Employer at its expense (including reimbursement to Employee of reasonable out-of-\npocket expenses incurred by Employee and a reasonable payment for Employee’s time involved in case he is not then in its employ) all such\nassistance as it may require in the prosecution of applications for said patents, copyright or reissues thereof, in the prosecution, or defense of\ninterferences, which may be declared involving any said applications, patents or copyrights and in any litigation in which Employer may be\ninvolved relating to any such patents, inventions, improvements or technical improvements.\n5\nIn the event that Employer is unable to, after reasonable effort, secure Employee’s signature on any document(s) needed to\napply for or secure any copyright or patent, for any reason whatsoever, Employee hereby designates Employer, and its duly authorized officers\nand agents, as Employee’s agent and attorney-in-fact to execute and file any such application(s), and to perform all other legally permitted acts\nto further the prosecution and issuance of copyrights and patents, or similar protection thereon, which shall have the same legal form and effect\nas if executed by Employee.\nEmployee hereby represents and warrants that Employee has fully described to Employer on Schedule A appended hereto any\nidea, invention, product, improvement, computer software program or other equipment or technology related to the Business of Employer\n(“Inventions”), not covered in this Paragraph 7, which prior to his employment with Employer, Employee conceived of or developed, wholly or\nin part, and in which Employee has any right, title or proprietary interest, and whether directly related to Employer’s Business, but which has not\nbeen published or filed with the United States Patent and Trademark or Copyright Offices or any other patent or copyright office or assigned or\ntransferred to Employer. If there is no such Schedule A, Employee represents that Employee has made no such Inventions at the time of signing\nthis Agreement or Employee hereby assigns such Inventions to Employer.\nWith respect to this Paragraph 7, it is agreed and acknowledged that during Employee’s employment, Employer may enter\nother lines of business, which are related or unrelated to its Business, in which case this Agreement would be expanded to cover such new lines\nof business.\nIn the event that Employer gives written notice to Employee that Employer elects not to apply for a patent in a jurisdiction for\nan item above, which is patentable then Employee may, at his own cost and expense, apply for a patent therefor in his own name in such\njurisdiction.\n8. Reasonableness of Restrictions.\na.\nEmployee has carefully read and considered the provisions of Paragraphs 4 through 7 hereof, and having done\nso agrees that the restrictions set forth therein are fair and reasonable and are reasonably required for the protection of the interests of Employer,\nits stockholders, directors, officers, employees, and successors and assigns and that Employer would not have employed Employee in the\nabsence of agreement to such restrictions and that any violation of any provisions of Paragraphs 4 through 7 will result in irreparable injury to\nEmployer. Employee further represents and acknowledges that (i) Employee has been advised by Employer to consult his counsel prior to\nexecution and delivery of this Agreement, and (ii) that Employee has had full opportunity, prior to execution and delivery of this Agreement, to\nreview thoroughly this Agreement with his counsel.\n6\nEmployee further understands and agrees that Employer shall be entitled to preliminary and permanent injunctive relief,\nwithout the necessity of proving actual damages, as well as an equitable accounting of all earnings, profits and other benefit, arising from any\nviolation of Paragraphs 4 through 7, which rights shall be cumulative, and in addition to any other rights or remedies to which Employer may be\nentitled hereunder or now or hereafter existing in law or equity. No delay or omission by a party hereto in exercising any right, remedy or power\nhereunder or existing at law or in equity shall be construed as a waiver thereof.\nb. To the extent any portion of any provision of this Agreement is held to be invalid or unenforceable, the language\nshall be construed by limiting and/or reducing it so as to be enforceable to the extent compatible with applicable law. All remaining provisions\nand/or portions thereof shall remain in full force and effect.\n9. Binding Effect. This Agreement shall be binding upon and inure to the benefit of and be enforceable by Employer and its\nsuccessors and assigns, and shall be binding upon and inure to the benefit of and be enforceable by Employee and his estate, heirs,\nadministrators and legal representatives. This Agreement is not assignable by Employee but is assignable by Employer to any successor to all, or\nsubstantially all, of its Business, assets or other reorganization to which it may become a party, provided that, such assignee assumes all of the\nobligations of Employer hereunder.\n10.\nEntire Agreement and Amendment. This Agreement constitutes the entire agreement between Employer and\nEmployee with respect to the restrictive covenants set forth in Paragraphs 4 through 7 of this Agreement and supersedes all prior agreements,\nwritten or oral with respect thereto. This Agreement cannot be changed or modified, except upon written amendment executed by Employee and\nexecuted on Employer’s behalf by a duly authorized officer.\nNothing in this Agreement shall be construed as changing or modifying the “at will” nature of Employee’s employment with\nEmployer, pursuant to which the Parties acknowledge and agree that Employee’s employment with Employer is “at will” and that Employee’s\nemployment may be terminated by Employee or Employer at any time, for any reason or for no reason.\n11. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New\nJersey, without regard to its conflicts of law provisions.\nAny claim arising out of, or relating to this Agreement including, without limitation, any action commenced by Employer for\npreliminary and permanent injunctive relief or other equitable relief, shall be instituted in any federal or state court in the State of New Jersey.\nEach party agrees not to assert by way of motion, as a defense or otherwise, in any such claim, that such party is not subject personally to the\njurisdiction of such court, that the claim is brought in an inconvenient forum, that the venue of the claim is improper or that this Agreement or\nthe subject matter hereof may not be enforced in or by such court. Each party further irrevocably submits to the exclusive jurisdiction of such\ncourt in any such claim.\n7\nAny and all service of process and any other notice in any such claim shall be effective against any party if given personally or\nby registered mail, return receipt requested, mailed to such party as provided herein. Nothing herein contained shall be deemed to affect the right\nof any party to serve process in any manner permitted by law.\n12. Usage.\nAll pronouns and any variations thereof shall be considered to refer to the masculine, feminine or neuter,\nsingular or plural, as the context may require. All terms defined in the Agreement in their singular or plural forms have correlative meanings\nwhen used herein in their singular or plural forms, respectively. Unless otherwise expressly provided the words “include” “includes” and\n“including” do not limit the preceding words or terms and shall be deemed followed by the words “without limitation.”\n13.\nHeadings. The headings in this Agreement are for reference only, and shall not affect the interpretation of this\nAgreement.\n14. Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so\nexecuted and delivered shall be an original, but all such counterparts, together shall constitute one, and the same, instrument. Each counterpart\nmay consist of a number of copies hereof each signed by less than all, but together signed by all of the parties hereto.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.\nINTERPACE DIAGNOSTICS GROUP, INC.\nBy: /s/ Jack Stover\nName: Jack\nStover\nTitle: Chief Executive Officer\nEMPLOYEE\n/s/ Nat Krishnamurti\nName: Nat Krishnamurti\nTitle: Chief Financial Officer, Treasurer, and Secretary\n8	EX-10.2 3 ex10-2.htm EXHIBIT 10.2\nExhibit 10.2\nEXHIBIT A\nCONFIDENTIAL INFORMATION, NON-DISCLOSURE, NON-SOLICITATION,\nNON-COMPETE, AND RIGHTS TO INTELLECTUAL PROPERTY AGREEMENT\nThis CONFIDENTIAL INFORMATION, NON-DISCLOSURE, NON-SOLICITATION, NON-COMPETE, AND RIGHTS\nTO INTELLECTUAL PROPERTY AGREEMENT (hereinafter this “Agreement” or this “Confidentiality Agreement”) is made as of June 22,\n2016, by and between Nat Krishnamurti, who currently resides at [ ] (“Employee”) and Interpace Diagnostics Group, Inc. (formerly PDI,\nInc. and hereinafter together with PDI, Inc., Interpace Diagnostics Corporation, and Interpace Diagnostics, LLC referred to as “Employer”),\nhaving its principal place of business at Morris Corporate Center 1-Building A/B, 300 Interpace Parkway, Parsippany, New Jersey 07054\n(collectively the “Parties”).\nWHEREAS, Employee is presently serving and continues to serve as Chief Financial Officer, Treasurer, and Secretary of\nEmployer;\nWHEREAS, Employer will continue to employ Employee in a position of trust and confidence to aid Employer in its\nBusiness;\nWHEREAS, Employer desires to receive from Employee a covenant not to disclose certain information relating to\nEmployer’s Business and certain other covenants;\nWHEREAS, as a material inducement to Employer to employ and continue to employ Employee and pay Employee salary\nand other remuneration and benefits during his employment, Employee has agreed to such covenants; and\nWHEREAS, Employer and Employee desire to set forth, in writing, the terms and conditions of their agreements and\nunderstandings with respect to such covenants.\nNOW, THEREFORE, in consideration of the foregoing, of the mutual promises herein contained, and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto intending to be legally bound, agree as\nfollows:\n1.  Business. For purposes of this Agreement, the Business of Employer consists of developing and conducting molecular\ndiagnostic testing to assist in the treatment of pancreatic, biliary, esophageal and thyroid cancers (the “Business”). The Business is highly\ncompetitive and specialized involving highly sensitive information.\n2. Employer. As used herein, the term “Employer” shall mean Interpace Diagnostics Group, Inc. (formerly and including\nPDI, Inc.); Interpace Diagnostics, LLC; Interpace Diagnostics Corporation; and any and all related or affiliated entities, including, but not\nlimited to any other business entity which is, was, or becomes a predecessor, subsidiary, or parent of the above-listed entities and/or which is,\nwas, or becomes an affiliate of one or more of the above-listed entities by virtue of common (although not identical) ownership and for which\nEmployee is providing services in any form during his employment with Employer.\n \n3. Notice. Any notice required to, or permitted to, be given hereunder shall be sufficient if in writing (a) delivered\npersonally, (b) sent by first class certified mail, return receipt requested, postage and fees prepaid, or (c) sent by prepaid overnight delivery\nservice, to the parties at the following addresses (or at such other addresses as shall be specified by the parties in a like notice):\nIf to Employer: Interpace Diagnostics Group, Inc.\nMorris Corporate Center I\nBuilding A/B\n300 Interpace Parkway\nParsippany, New Jersey 07054\nAttn.:  Chief Executive Officer\nIf to Employee: Nat Krishnamurti\n[]\n[]\nAll notices shall be deemed to have been given upon receipt if delivered personally, or by recognized overnight courier, or five\n(5) days after mailing if mailed.\n4. Confidential Information, Non-Disclosure. Employee understands and recognizes that in his position as Chief\nFinancial Officer, Treasurer, and Secretary of Employer, he has been and will be afforded substantial access to Confidential Information (as that\nterm is defined below) the unauthorized use, disclosure and/or publication of which would cause Employer to suffer substantial damage to and\ninterfere with the current or contemplated Business of Employer and cause irreparable injury to Employer. Employee further understands and\nrecognizes, therefore, that it is in Employer’s legitimate business interest to restrict Employee’s use of Confidential Information for any purposes\nother than the discharge of Employee’s duties at Employer in furtherance of the Business, and to limit any potential appropriation of\nConfidential Information by Employee for the benefit of Employer’s competitors and to the detriment of Employer. Accordingly, Employee\nagrees as follows:\na. During and after Employee’s employment with Employer, Employee will not, without the prior written consent\nof Employer, or as may otherwise be required by law or legal process, communicate or disclose to any other person or company, or use for\nEmployee’s own personal benefit, except as may be necessary in the performance of Employee’s duties as an employee of Employer, any\nConfidential Information disclosed to him or of which Employee became aware or developed or was given access to by reason of Employee’s\nemployment or association with Employer.\nb.  The term “Confidential Information” means any and all data and information relating to Employer and/or its\nBusiness (whether or not it constitutes a trade secret) or data and information received by Employer from third parties including, but not limited\nto, customers, clients, patients and business partners in confidence (or subject to a Non-Disclosure covenant), which is, or has been, disclosed to\nEmployee or of which Employee became or becomes aware as a consequence of his employment relationship with Employer, and which has\nvalue to Employer and is not generally known by Employer’s competitors including, but not limited to, information concerning Employer’s\nbusiness, and information of third parties, which Employer is required to maintain as confidential. Confidential Information shall not include\nany data or information that has been disclosed voluntarily to the public by Employer (except when such public disclosure has been made by\nEmployee or some other person without authorization from Employer), or that has been independently developed and disclosed by others, or\nthat otherwise enters the public domain through lawful and legitimate means.\nEmployee hereby expressly agrees that Confidential Information is the exclusive property of Employer, to be held by\nEmployee in trust and solely for Employer’s benefit and shall not be used by Employee or disclosed by Employee to others, either during or\nafter Employee’s employment without Employer’s advance written consent, except where required for Employee to properly perform\nEmployee’s job duties for Employer. This promise is binding on Employee regardless of the reason(s) for the termination of Employee’s\nemployment. Employee further agrees to comply with all rules, policies and procedures established by Employer from time-to-time, which are\ndesigned to protect and ensure the continued confidentiality of the Confidential Information and all applicable law.\nc. Employee understands and agrees that upon termination of Employee’s employment with Employer, Employee\nwill not take with him, or retain, without written authorization from Employer, any documents, files or other property of Employer, and\nEmployee will promptly return to Employer any such documents, files or property in his possession or control, including all copies, extracts,\nreproductions or notes, as may have been made by or on behalf of Employee. If Employee has stored Confidential Information on any personal\ndesktop or laptop devices, Personal Digital Assistants (“PDAs”), mobile/smart phones, external hard drives, “flash” or similar USB storages\ndevices, Fire Wire storage devices, digital music players, digital tapes, floppy diskettes, CDs, DVDs, memory cards, zip diskettes, as well as\nmaintained in personal e-mail accounts (including web based e-mail accounts such as Hotmail, Gmail, Yahoo, etc.) and other electronic or\nonline communications applications, such as text messaging, social media networks (i.e. Facebook, LinkedIn, My Space, etc.), chat rooms and\nsimilar environments and all other media, which can be utilized to store or transmit electronic data and communications (regardless of whether\nthe media utilized is owned by Employer, Employee or a third party, or where the media is located) then Employee must make those devices\navailable to Employer or provide access to those accounts or communications in order to enable Employer to search for such Confidential\nInformation and to remove and/or make complete copies of the media/communications and all information stored to the extent permitted by law\nor to the extent not permitted by law to otherwise arrange for the return and/or removal of such Confidential Information to Employer, as\nappropriate.\nEmployee acknowledges and agrees that this list is not comprehensive and includes technological advancements in methods,\ndevices and locations for storing and communicating data that could include Confidential Information covered by this provision. For this\npurpose, Employee agrees that he has no expectation of privacy with respect to the various media and communications referred to above, except\nto the extent otherwise provided by law.\nIn connection with this Confidentiality Agreement, Employee recognizes that all documents, files and property, which\nEmployee has received or will receive from Employer, including, but not limited to, handbooks, memoranda, policy manuals, product\nspecifications and other materials, with the exception of documents relating to benefits to which Employee might be entitled following the\ntermination of his employment with Employer, are for the exclusive use of Employer and employees discharging their responsibilities on behalf\nof Employer, and that Employee has no claim or right to the continued use, possession or custody of such material following the termination of\nhis employment with Employer.\nIf Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative\ndemand or similar process) to disclose any Confidential Information, Employee shall provide Employer with prompt written notice of such\nrequirement so Employer may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Paragraph 4\nof this Confidentiality Agreement. If such protective order or other remedy is not obtained, or Employer waives compliance with the provisions\nof this Paragraph 4, Employee agrees to furnish only that portion of the Confidential Information, which he is advised by written opinion of\nlegal counsel is legally required and to exercise best efforts to obtain assurances that confidential treatment will be accorded such Confidential\nInformation.\n5. Non-Solicitation. Except as otherwise approved in writing by Employer, Employee agrees that Employee will not,\ndirectly or indirectly, with or through any family member, or former directors, officers or employees of Employer, or acting alone or as a\nmember of a partnership or limited liability company or as an officer, holder of or investor in as much as five (5%) percent of any security of\nany class, director, employee, consultant or representative of any corporation or other business entity at any time during Employee’s\nemployment with Employer, and for a period of two (2) years following cessation of Employee’s employment with Employer for any reason,\ninterfere with, or seek to interfere with the relationship or otherwise alter, limit or terminate such relationship between Employer and the\nfollowing: (a) any employee of Employer or any person who was employed by Employer at any time within one (1) year prior to the cessation\nof Employee’s employment with Employer, which prohibited interference includes inducing or attempting to induce any person to leave\nemployment with Employer or hiring any such person; (b) any of the customers or clients of Employer then existing or existing at any time\nwithin one (1) year prior to the cessation of Employee’s employment with Employer with which Employee personally had contact or access to\nConfidential Information about, or (c) any of the suppliers or licensees of Employer, then existing or existing at any time within one (1) year\nprior to cessation of Employee’s employment with Employer.\n6. Non-Competition. It is recognized and understood by the parties hereto that Employee, through Employee’s\nassociation with Employer, has acquired and shall continue to acquire a considerable amount of knowledge and goodwill with respect to the\nBusiness of Employer, as well as access to Employer’s clients and customers, which knowledge, goodwill and relationships are extremely\nvaluable to Employer and which would be extremely detrimental to Employer if used by Employee to compete with Employer. It is therefore\nunderstood and agreed to by the parties hereto that because of the nature of the Business of Employer, it is necessary to afford fair protection to\nEmployer from competition by Employee. Consequently, as a material inducement to employ and continue to employ Employee, Employee\ncovenants and agrees that he will not, directly or indirectly, with or through any family member, or former director, officer or employee of\nEmployer, or acting alone or as a member of a partnership or limited liability company, or as an officer of or investor in as much as five (5%)\npercent of any security of any class, director, employee, consultant or representative of any corporation or other business entity at any time while\nemployed by Employer, and for a period of one (1) year following cessation of Employee’s employment with Employer for any reason, own,\nmanage, operate, control, consult with, or be employed by or with any person, firm, partnership, association, corporation or other business entity\nwhich competes with Employer or performs services which are substantially similar to its Business in the United States of America.\n \n7.  Rights to Intellectual Property. All inventions, improvements, modifications, ideas, styles, trade names and the like,\nwhether or not reduced to writing or stored electronically or otherwise and whether or not protectable by patent, trademark, copyright or other\nintellectual property law, which relate or are susceptible for use directly or indirectly in Employer’s Business that are originated in whole, or in\npart, by Employee (alone or jointly with others) during his term of employment with Employer, irrespective of whether they were conceived,\ndeveloped, suggested or perfected (i) during Employee’s regular working hours, (ii) with the use of Employer’s time, materials or facilities or\n(iii) within one (1) year following the termination of Employee’s employment with Employer or otherwise attributable to Employee’s\nemployment with Employer shall become and remain the exclusive property of Employer. If any one or more of the aforementioned are deemed\nin any way to fall within the definition of “work made for hire,” as such term is defined in 17 U.S.C. §101, such work shall be considered a\n“work made for hire,” the copyright of which shall be owned solely by, or assigned or transferred completely and exclusively to Employer. At\nthe request and expense of Employer, Employee shall cooperate with Employer, in applying for, prosecuting, and obtaining patent, trademark,\nservice mark, trade name and copyright registrations in the name of Employer.\nEmployee shall promptly disclose, grant and assign ownership to Employer, for its sole use and benefit, any and all inventions,\nimprovements, information and copyrights (whether patentable or not), which he may develop, acquire, conceive or reduce to practice, while\nemployed by Employer (whether or not during usual working hours) together with all patent applications, letters, patent, copyrights and reissues\nthereof, that may at any time be granted for or upon any such invention, improvement or information; provided, however, that Employee shall\nown any invention, which Employee can demonstrate has no relationship to the Business, and which was neither conceived, nor made by use of\nany of the time, facilities or materials of Employer. In connection therewith:\na.  Employee shall without charge, but at the expense of Employer, promptly at all times thereafter execute and\ndeliver such applications, assignments, descriptions and other instruments, as may be reasonably necessary or proper in the opinion of Employer\nto vest title to any such inventions, improvements, technical information, patent applications, patents, copyrights or reissues thereof in\nEmployer, and to enable it to obtain and maintain the entire right and title thereto throughout the world; and\nb. Employee shall render to Employer at its expense (including reimbursement to Employee of reasonable out-of-\npocket expenses incurred by Employee and a reasonable payment for Employee’s time involved in case he is not then in its employ) all such\nassistance as it may require in the prosecution of applications for said patents, copyright or reissues thereof, in the prosecution, or defense of\ninterferences, which may be declared involving any said applications, patents or copyrights and in any litigation in which Employer may be\ninvolved relating to any such patents, inventions, improvements or technical improvements.\nIn the event that Employer is unable to, after reasonable effort, secure Employee’s signature on any document(s) needed to\napply for or secure any copyright or patent, for any reason whatsoever, Employee hereby designates Employer, and its duly authorized officers\nand agents, as Employee’s agent and attorney-in-fact to execute and file any such application(s), and to perform all other legally permitted acts\nto further the prosecution and issuance of copyrights and patents, or similar protection thereon, which shall have the same legal form and effect\nas if executed by Employee.\nEmployee hereby represents and warrants that Employee has fully described to Employer on Schedule A appended hereto any\nidea, invention, product, improvement, computer software program or other equipment or technology related to the Business of Employer\n(“Inventions”), not covered in this Paragraph 7, which prior to his employment with Employer, Employee conceived of or developed, wholly or\nin part, and in which Employee has any right, title or proprietary interest, and whether directly related to Employer’s Business, but which has not\nbeen published or filed with the United States Patent and Trademark or Copyright Offices or any other patent or copyright office or assigned or\ntransferred to Employer. If there is no such Schedule A, Employee represents that Employee has made no such Inventions at the time of signing\nthis Agreement or Employee hereby assigns such Inventions to Employer.\nWith respect to this Paragraph 7, it is agreed and acknowledged that during Employee’s employment, Employer may enter\nother lines of business, which are related or unrelated to its Business, in which case this Agreement would be expanded to cover such new lines\nof business.\nIn the event that Employer gives written notice to Employee that Employer elects not to apply for a patent in a jurisdiction for\nan item above, which is patentable then Employee may, at his own cost and expense, apply for a patent therefor in his own name in such\njurisdiction.\n8. Reasonableness of Restrictions.\na. Employee has carefully read and considered the provisions of Paragraphs 4 through 7 hereof, and having done\nso agrees that the restrictions set forth therein are fair and reasonable and are reasonably required for the protection of the interests of Employer,\nits stockholders, directors, officers, employees, and successors and assigns and that Employer would not have employed Employee in the\nabsence of agreement to such restrictions and that any violation of any provisions of Paragraphs 4 through 7 will result in irreparable injury to\nEmployer. Employee further represents and acknowledges that (i) Employee has been advised by Employer to consult his counsel prior to\nexecution and delivery of this Agreement, and (ii) that Employee has had full opportunity, prior to execution and delivery of this Agreement, to\nreview thoroughly this Agreement with his counsel.\n \nEmployee further understands and agrees that Employer shall be entitled to preliminary and permanent injunctive relief,\nwithout the necessity of proving actual damages, as well as an equitable accounting of all earnings, profits and other benefit, arising from any\nviolation of Paragraphs 4 through 7, which rights shall be cumulative, and in addition to any other rights or remedies to which Employer may be\nentitled hereunder or now or hereafter existing in law or equity. No delay or omission by a party hereto in exercising any right, remedy or power\nhereunder or existing at law or in equity shall be construed as a waiver thereof.\nb. To the extent any portion of any provision of this Agreement is held to be invalid or unenforceable, the language\nshall be construed by limiting and/or reducing it so as to be enforceable to the extent compatible with applicable law. All remaining provisions\nand/or portions thereof shall remain in full force and effect.\n9. Binding Effect. This Agreement shall be binding upon and inure to the benefit of and be enforceable by Employer and its\nsuccessors and assigns, and shall be binding upon and inure to the benefit of and be enforceable by Employee and his estate, heirs,\nadministrators and legal representatives. This Agreement is not assignable by Employee but is assignable by Employer to any successor to all, or\nsubstantially all, of its Business, assets or other reorganization to which it may become a party, provided that, such assignee assumes all of the\nobligations of Employer hereunder.\n10. Entire Agreement and Amendment. This Agreement constitutes the entire agreement between Employer and\nEmployee with respect to the restrictive covenants set forth in Paragraphs 4 through 7 of this Agreement and supersedes all prior agreements,\nwritten or oral with respect thereto. This Agreement cannot be changed or modified, except upon written amendment executed by Employee and\nexecuted on Employer’s behalf by a duly authorized officer.\nNothing in this Agreement shall be construed as changing or modifying the “at will” nature of Employee’s employment with\nEmployer, pursuant to which the Parties acknowledge and agree that Employee’s employment with Employer is “at will” and that Employee’s\nemployment may be terminated by Employee or Employer at any time, for any reason or for no reason.\n11. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New\nJersey, without regard to its conflicts of law provisions.\nAny claim arising out of, or relating to this Agreement including, without limitation, any action commenced by Employer for\npreliminary and permanent injunctive relief or other equitable relief, shall be instituted in any federal or state court in the State of New Jersey.\nEach party agrees not to assert by way of motion, as a defense or otherwise, in any such claim, that such party is not subject personally to the\njurisdiction of such court, that the claim is brought in an inconvenient forum, that the venue of the claim is improper or that this Agreement or\nthe subject matter hereof may not be enforced in or by such court. Each party further irrevocably submits to the exclusive jurisdiction of such\ncourt in any such claim.\n \nAny and all service of process and any other notice in any such claim shall be effective against any party if given personally or\nby registered mail, return receipt requested, mailed to such party as provided herein. Nothing herein contained shall be deemed to affect the right\nof any party to serve process in any manner permitted by law.\n12.  Usage. All pronouns and any variations thereof shall be considered to refer to the masculine, feminine or neuter,\nsingular or plural, as the context may require. All terms defined in the Agreement in their singular or plural forms have correlative meanings\nwhen used herein in their singular or plural forms, respectively. Unless otherwise expressly provided the words “include” “includes” and\n“including” do not limit the preceding words or terms and shall be deemed followed by the words “without limitation.”\n13. Headings. The headings in this Agreement are for reference only, and shall not affect the interpretation of this\nAgreement.\n14.  Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so\nexecuted and delivered shall be an original, but all such counterparts, together shall constitute one, and the same, instrument. Each counterpart\nmay consist of a number of copies hereof each signed by less than all, but together signed by all of the parties hereto.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.\nINTERPACE DIAGNOSTICS GROUP, INC.\nBy: /s/ Jack Stover\nName: Jack\nStover\nTitle: Chief Executive Officer\nEMPLOYEE\n/s/ Nat Krishnamurti\nName: Nat Krishnamurti\nTitle: Chief Financial Officer, Treasurer, and Secretary	EX-10.2 ex10-2.htm EXHIBIT 10.2\nExhibit 10.2\nEXHIBIT A\nCONFIDENTIAL INFORMATION, NON-DISCLOSURE, NON-SOLICITATION,\nNON-COMPETE, AND RIGHTS TO INTELLECTUAL PROPERTY AGREEMENT\nThis CONFIDENTIAL INFORMATION, NON-DISCLOSURE, NON-SOLICITATION, NON-COMPETE, AND RIGHTS\nTO INTELLECTUAL PROPERTY AGREEMENT (hereinafter this "Agreement" or this "Confidentiality Agreement") is made as of June 22,\n2016, by and between Nat Krishnamurti, who currently resides at [ 1 ("Employee") and Interpace Diagnostics Group, Inc. (formerly PDI,\nInc. and hereinafter together with PDI, Inc., Interpace Diagnostics Corporation, and Interpace Diagnostics, LLC referred to as "Employer"),\nhaving its principal place of business at Morris Corporate Center 1-Building A/B, 300 Interpace Parkway, Parsippany, New Jersey 07054\n(collectively the "Parties").\nWHEREAS, Employee is presently serving and continues to serve as Chief Financial Officer, Treasurer, and Secretary of\nEmployer;\nWHEREAS, Employer will continue to employ Employee in a position of trust and confidence to aid Employer in its\nBusiness;\nWHEREAS, Employer desires to receive from Employee a covenant not to disclose certain information relating to\nEmployer's Business and certain other covenants;\nWHEREAS, as a material inducement to Employer to employ and continue to employ Employee and pay Employee salary\nand other remuneration and benefits during his employment, Employee has agreed to such covenants; and\nWHEREAS, Employer and Employee desire to set forth, in writing, the terms and conditions of their agreements and\nunderstandings with respect to such covenants.\nNOW, THEREFORE, in consideration of the foregoing, of the mutual promises herein contained, and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto intending to be legally bound, agree as\nfollows:\n1.\nBusiness. For purposes of this Agreement, the Business of Employer consists of developing and conducting molecular\ndiagnostic testing to assist in the treatment of pancreatic, biliary, esophageal and thyroid cancers (the "Business"). The Business is highly\ncompetitive and specialized involving highly sensitive information.\n2. Employer. As used herein, the term "Employer" shall mean Interpace Diagnostics Group, Inc. (formerly and including\nPDI, Inc.); Interpace Diagnostics, LLC; Interpace Diagnostics Corporation; and any and all related or affiliated entities, including, but not\nlimited to any other business entity which is, was, or becomes a predecessor, subsidiary, or parent of the above-listed entities and/or which is,\nwas, or becomes an affiliate of one or more of the above-listed entities by virtue of common (although not identical) ownership and for which\nEmployee is providing services in any form during his employment with Employer.\n1\n3.\nNotice. Any notice required to, or permitted to, be given hereunder shall be sufficient if in writing (a) delivered\npersonally, (b) sent by first class certified mail, return receipt requested, postage and fees prepaid, or (c) sent by prepaid overnight delivery\nservice, to the parties at the following addresses (or at such other addresses as shall be specified by the parties in a like notice):\nIf to Employer:\nInterpace Diagnostics Group, Inc.\nMorris Corporate Center I\nBuilding A/B\n300 Interpace Parkway\nParsippany, New Jersey 07054\nAttn.: Chief Executive Officer\nIf to Employee:\nNat Krishnamurti\nAll notices shall be deemed to have been given upon receipt if delivered personally, or by recognized overnight courier, or five\n(5) days after mailing if mailed.\n4.\nConfidential Information, Non-Disclosure. Employee understands and recognizes that in his position as Chief\nFinancial Officer, Treasurer, and Secretary of Employer, he has been and will be afforded substantial access to Confidential Information (as that\nterm is defined below) the unauthorized use, disclosure and/or publication of which would cause Employer to suffer substantial damage to and\ninterfere with the current or contemplated Business of Employer and cause irreparable injury to Employer. Employee further understands and\nrecognizes, therefore, that it is in Employer's legitimate business interest to restrict Employee's use of Confidential Information for any purposes\nother than the discharge of Employee's duties at Employer in furtherance of the Business, and to limit any potential appropriation of\nConfidential Information by Employee for the benefit of Employer's competitors and to the detriment of Employer. Accordingly, Employee\nagrees as follows:\na.\nDuring and after Employee's employment with Employer, Employee will not, without the prior written consent\nof Employer, or as may otherwise be required by law or legal process, communicate or disclose to any other person or company, or use for\nEmployee's own personal benefit, except as may be necessary in the performance of Employee's duties as an employee of Employer, any\nConfidential Information disclosed to him or of which Employee became aware or developed or was given access to by reason of Employee's\nemployment or association with Employer.\nb.\nThe term "Confidential Information" means any and all data and information relating to Employer and/or its\nBusiness (whether or not it constitutes a trade secret) or data and information received by Employer from third parties including, but not limited\nto,\ncustomers,\nclients, patients and business partners in confidence (or subject to a Non-Disclosure covenant), which is, or has been, disclosed to\nEmployee or of which Employee became or becomes aware as a consequence of his employment relationship with Employer, and which has\nvalue to Employer and is not generally known by Employer's competitors including, but not limited to, information concerning Employer's\nbusiness, and information of third parties, which Employer is required to maintain as confidential. Confidential Information shall not include\nany data or information that has been disclosed voluntarily to the public by Employer (except when such public disclosure has been made by\nEmployee or some other person without authorization from Employer), or that has been independently developed and disclosed by others, or\nthat otherwise enters the public domain through lawful and legitimate means.\n2\nEmployee hereby expressly agrees that Confidential Information is the exclusive property of Employer, to be held by\nEmployee in trust and solely for Employer's benefit and shall not be used by Employee or disclosed by Employee to others, either during or\nafter Employee's employment without Employer's advance written consent, except where required for Employee to properly perform\nEmployee's job duties for Employer. This promise is binding on Employee regardless of the reason(s) for the termination of Employee's\nemployment. Employee further agrees to comply with all rules, policies and procedures established by Employer from time-to-time, which\nare\ndesigned to protect and ensure the continued confidentiality of the Confidential Information and all applicable law.\nC. Employee understands and agrees that upon termination of Employee's employment with Employer, Employee\nwill not take with him, or retain, without written authorization from Employer, any documents, files or other property of Employer, and\nEmployee will promptly return to Employer any such documents, files or property in his possession or control, including all copies, extracts,\nreproductions or notes, as may have been made by or on behalf of Employee. If Employee has stored Confidential Information on any personal\ndesktop or laptop devices, Personal Digital Assistants ("PDAs"), mobile/smart phones, external hard drives, "flash" or similar USB storages\ndevices, Fire Wire storage devices, digital music players, digital tapes, floppy diskettes, CDs, DVDs, memory cards, zip diskettes, as well\nas\nmaintained in personal e-mail accounts (including web based e-mail accounts such as Hotmail, Gmail, Yahoo, etc.) and other electronic or\nonline communications applications, such as text messaging, social media networks (i.e. Facebook, LinkedIn, My Space, etc.), chat rooms\nand\nsimilar\nenvironments and all other media, which can be utilized to store or transmit electronic data and communications (regardless of whether\nthe media utilized is owned by Employer, Employee or a third party, or where the media is located) then Employee must make those devices\navailable to Employer or provide access to those accounts or communications in order to enable Employer to search for such Confidential\nInformation and to remove and/or make complete copies of the media/communications and all information stored to the extent permitted by law\nor to the extent not permitted by law to otherwise arrange for the return and/or removal of such Confidential Information to Employer, as\nappropriate.\nEmployee acknowledges and agrees that this list is not comprehensive and includes technological advancements in methods,\ndevices and locations for storing and communicating data that could include Confidentia Information covered by this provision. For this\npurpose, Employee agrees that he has no expectation of privacy with respect to the various media and communications referred to above, except\nto the extent otherwise provided by law.\n3\nIn connection with this Confidentiality Agreement, Employee recognizes that all documents, files and property, which\nEmployee has received or will receive from Employer, including, but not limited to, handbooks, memoranda, policy manuals, product\nspecifications and other materials, with the exception of documents relating to benefits to which Employee might be entitled following the\ntermination of his employment with Employer, are for the exclusive use of Employer and employees discharging their responsibilities on behalf\nof Employer, and that Employee has no claim or right to the continued use, possession or custody of such material following the termination of\nhis employment with Employer.\nIf Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative\ndemand or similar process) to disclose any Confidential Information, Employee shall provide Employer with prompt written notice of such\nrequirement so Employer may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Paragraph\n4\nof this Confidentiality Agreement. If such protective order or other remedy is not obtained, or Employer waives compliance with the provisions\nof this Paragraph 4, Employee agrees to furnish only that portion of the Confidential Information, which he is advised by written opinion\nof\nlegal counsel is legally required and to exercise best efforts to obtain assurances that confidential treatment will be accorded such Confidential\nInformation.\n5.\nNon-Solicitation. Except as otherwise approved in writing by Employer, Employee agrees that Employee will not,\ndirectly or indirectly, with or through any family member, or former directors, officers or employees of Employer, or acting alone or as a\nmember of a partnership or limited liability company or as an officer, holder of or investor in as much as five (5%) percent of any security of\nany class, director, employee, consultant or representative of any corporation or other business entity at any time during Employee's\nemployment with Employer, and for a period of two (2) years following cessation of Employee's employment with Employer for any reason,\ninterfere with, or seek to interfere with the relationship or otherwise alter, limit or terminate such relationship between Employer and the\nfollowing: (a) any employee of Employer or any person who was employed by Employer at any time within one (1) year prior to the cessation\nof Employee's employment with Employer, which prohibited interference includes inducing or attempting to induce any person to leave\nemployment with Employer or hiring any such person; (b) any of the customers or clients of Employer then existing or existing at any time\nwithin one (1) year prior to the cessation of Employee's employment with Employer with which Employee personally had contact or access to\nConfidential Information about, or (c) any of the suppliers or licensees of Employer, then existing or existing at any time within one (1) year\nprior to cessation of Employee's employment with Employer.\n6.\nNon-Competition. It is recognized and understood by the parties hereto that Employee, through Employee's\nassociation with Employer, has acquired and shall continue to acquire a considerable amount of knowledge and goodwill with respect to the\nBusiness of Employer, as well as access to Employer's clients and customers, which knowledge, goodwill and relationships are extremely\nvaluable to Employer and which would be extremely detrimental to Employer if used by Employee to compete with Employer. It is therefore\nunderstood and agreed to by the parties hereto that because of the nature of the Business of Employer, it is necessary to afford fair protection\nto\nEmployer from competition by Employee. Consequently, as a material inducement to employ and continue to employ Employee, Employee\ncovenants and agrees that he will not, directly or indirectly, with or through any family member, or former director, officer or employee of\nEmployer, or acting alone or as a member of a partnership or limited liability company, or as an officer of or investor in as much as five (5%)\npercent of any security of any class, director, employee, consultant or representative of any corporation or other business entity at any time while\nemployed by Employer, and for a period of one (1) year following cessation of Employee's employment with Employer for any reason, own,\nmanage, operate, control, consult with, or be employed by or with any person, firm, partnership, association, corporation or other business entity\nwhich competes with Employer or performs services which are substantially similar to its Business in the United States of America.\n4\n7. Rights to Intellectual Property.. All inventions, improvements, modifications, ideas, styles, trade names and the like,\nwhether or not reduced to writing or stored electronically or otherwise and whether or not protectable by patent, trademark, copyright or other\nintellectual property law, which relate or are susceptible for use directly or indirectly in Employer's Business that are originated in whole, or in\npart, by Employee (alone or jointly with others) during his term of employment with Employer, irrespective of whether they were conceived,\ndeveloped, suggested or perfected (i) during Employee's regular working hours, (ii) with the use of Employer's time, materials or facilities or\n(iii) within one (1) year following the termination of Employee's employment with Employer or otherwise attributable to Employee's\nemployment\nwith Employer shall become and remain the exclusive property of Employer. If any one or more of the aforementioned are deemed\nin any way to fall within the definition of "work made for hire," as such term is defined in 17 U.S.C. 8101, such work shall be considered\na\n"work made for hire," the copyright of which shall be owned solely by, or assigned or transferred completely and exclusively to Employer. At\nthe request and expense of Employer, Employee shall cooperate with Employer, in applying for, prosecuting, and obtaining patent, trademark,\nservice mark, trade name and copyright registrations in the name of Employer.\nEmployee shall promptly disclose, grant and assign ownership to Employer, for its sole use and benefit, any and all inventions,\nimprovements, information and copyrights (whether patentable or not), which he may develop, acquire, conceive or reduce to practice, while\nemployed by Employer (whether or not during usual working hours) together with all patent applications, letters, patent, copyrights and reissues\nthereof, that may at any time be granted for or upon any such invention, improvement or information; provided, however, that Employee shall\nown any invention, which Employee can demonstrate has no relationship to the Business, and which was neither conceived, nor made by use of\nany of the time, facilities or materials of Employer. In connection therewith:\na. Employee shall without charge, but at the expense of Employer, promptly at all times thereafter execute and\ndeliver such applications, assignments, descriptions and other instruments, as may be reasonably necessary or proper in the opinion of Employer\nto vest title to any such inventions, improvements, technical information, patent applications, patents, copyrights or reissues thereof\nin\nEmployer, and to enable it to obtain and maintain the entire right and title thereto throughout the world; and\nb.\nEmployee shall render to Employer at its expense (including reimbursement to Employee of reasonable out-of-\npocket expenses incurred by Employee and a reasonable payment for Employee's time involved in case he is not then in its employ) all such\nassistance as it may require in the prosecution of applications for said patents, copyright or reissues thereof, in the prosecution, or defense of\ninterferences, which may be declared involving any said applications, patents or copyrights and in any litigation in which Employer may be\ninvolved relating to any such patents, inventions, improvements or technical improvements.\n5\nIn the event that Employer is unable to, after reasonable effort, secure Employee's signature on any document(s) needed to\napply for or secure any copyright or patent, for any reason whatsoever, Employee hereby designates Employer, and its duly authorized officers\nand agents, as Employee's agent and attorney-in-fact to execute and file any such application(s), and to perform all other legally permitted acts\nto further the prosecution and issuance of copyrights and patents, or similar protection thereon, which shall have the same legal form and effect\nas if executed by Employee.\nEmployee hereby represents and warrants that Employee has fully described to Employer on Schedule A appended hereto any\nidea, invention, product, improvement, computer software program or other equipment or technology related to the Business of Employer\n("Inventions"), not covered in this Paragraph 7, which prior to his employment with Employer, Employee conceived of or developed, wholly or\nin\npart,\nand in which Employee has any right, title or proprietary interest, and whether directly related to Employer's Business, but which has not\nbeen published or filed with the United States Patent and Trademark or Copyright Offices or any other patent or copyright office or assigned or\ntransferred to Employer. If there is no such Schedule A, Employee represents that Employee has made no such Inventions at the time of signing\nthis Agreement or Employee hereby assigns such Inventions to Employer.\nWith respect to this Paragraph 7, it is agreed and acknowledged that during Employee's employment, Employer may enter\nother lines of business, which are related or unrelated to its Business, in which case this Agreement would be expanded to cover such new lines\nof business.\nIn the event that Employer gives written notice to Employee that Employer elects not to apply for a patent in a jurisdiction for\nan item above, which is patentable then Employee may, at his own cost and expense, apply for a patent therefor in his own name in such\njurisdiction.\n8. Reasonableness of Restrictions.\na. Employee has carefully read and considered the provisions of Paragraphs 4 through 7 hereof, and having done\nso agrees that the restrictions set forth therein are fair and reasonable and are reasonably required for the protection of the interests of Employer,\nits stockholders, directors, officers, employees, and successors and assigns and that Employer would not have employed Employee in the\nabsence of agreement to such restrictions and that any violation of any provisions of Paragraphs 4 through 7 will result in irreparable injury to\nEmployer. Employee further represents and acknowledges that (i) Employee has been advised by Employer to consult his counsel prior to\nexecution and delivery of this Agreement, and (ii) that Employee has had full opportunity, prior to execution and delivery of this Agreement, to\nreview thoroughly this Agreement with his counsel.\n6\nEmployee further understands and agrees that Employer shall be entitled to preliminary and permanent injunctive relief,\nwithout the necessity of proving actual damages, as well as an equitable accounting of all earnings, profits and other benefit, arising from any\nviolation of Paragraphs 4 through 7, which rights shall be cumulative, and in addition to any other rights or remedies to which Employer may be\nentitled hereunder or now or hereafter existing in law or equity. No delay or omission by a party hereto in exercising any right, remedy or power\nhereunder or existing at law or in equity shall be construed as a waiver thereof.\nb. To the extent any portion of any provision of this Agreement is held to be invalid or unenforceable, the language\nshall be construed by limiting and/or reducing it so as to be enforceable to the extent compatible with applicable law. All remaining provisions\nand/or portions thereof shall remain in full force and effect.\n9. Binding Effect. This Agreement shall be binding upon and inure to the benefit of and be enforceable by Employer and its\nsuccessors and assigns, and shall be binding upon and inure to the benefit of and be enforceable by Employee and his estate, heirs,\nadministrators and legal representatives. This Agreement is not assignable by Employee but is assignable by Employer to any successor to all, or\nsubstantially all, of its Business, assets or other reorganization to which it may become party,_provided that, such assignee assumes all of the\nobligations of Employer hereunder.\n10.\nEntire Agreement and Amendment. This Agreement constitutes the entire agreement between Employer and\nEmployee with respect to the restrictive covenants set forth in Paragraphs 4 through 7 of this Agreement and supersedes all prior agreements,\nwritten or oral with respect thereto. This Agreement cannot be changed or modified, except upon written amendment executed by Employee and\nexecuted on Employer's behalf by a duly authorized officer.\nNothing in this Agreement shall be construed as changing or modifying the "at will" nature of Employee's employment with\nEmployer, pursuant to which the Parties acknowledge and agree that Employee's employment with Employer is "at will" and that Employee's\nemployment may be terminated by Employee or Employer at any time, for any reason or for no reason.\n11. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New\nJersey, without regard to its conflicts of law provisions.\nAny claim arising out of, or relating to this Agreement including, without limitation, any action commenced by Employer for\npreliminary and permanent injunctive relief or other equitable relief, shall be instituted in any federal or state court in the State of New Jersey.\nEach party agrees not to assert by way of motion, as a defense or otherwise, in any such claim, that such party is not subject personally to the\njurisdiction of such court, that the claim is brought in an inconvenient forum, that the venue of the claim is improper or that this Agreement or\nthe subject matter hereof may not be enforced in or by such court. Each party further irrevocably submits to the exclusive jurisdiction of such\ncourt in any such claim.\n7\nAny and all service of process and any other notice in any such claim shall be effective against any party if given personally or\nby registered mail, return receipt requested, mailed to such party as provided herein. Nothing herein contained shall be deemed to affect the right\nof any party to serve process in any manner permitted by law.\n12.\nUsage. All pronouns and any variations thereof shall be considered to refer to the masculine, feminine or neuter,\nsingular or plural, as the context may require. All terms defined in the Agreement in their singular or plural forms have correlative meanings\nwhen\nused herein in their singular or plural forms, respectively. Unless otherwise expressly provided the words "include" "includes"\nand\n"including" do not limit the preceding words or terms and shall be deemed followed by the words "without limitation."\n13.\nHeadings. The headings in this Agreement are for reference only, and shall not affect the interpretation of this\nAgreement.\n14. Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so\nexecuted and delivered shall be an original, but all such counterparts, together shall constitute one, and the same, instrument. Each counterpart\nmay consist of a number of copies hereof each signed by less than all, but together signed by all of the parties hereto.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.\nINTERPACE DIAGNOSTICS GROUP, INC.\nBy: /s/ Jack Stover\nName: Jack\nStover\nTitle: Chief Executive Officer\nEMPLOYEE\n/s/ Nat Krishnamurti\nName: Nat Krishnamurti\nTitle: Chief Financial Officer, Treasurer, and Secretary\n8	EX-10 .2 3 ex10-2.htm EXHIBIT 10.2\nExhibit 10.2\nEXHIBIT A\nCONFIDENTIAL INFORMATION, NON-DISCLOSURE, NON-SOLICITATION,\nNON-COMPETE, AND RIGHTS TO INTELLECTUAL PROPERTY AGREEMENT\nThis CONFIDENTIAL INFORMATION, NON-DISCLOSURE, NON-SOLICITATION, NON-COMPETE, AND RIGHTS\nTO INTELLECTUAL PROPERTY AGREEMENT (hereinafter this “Agreement” or this “Confidentiality Agreement”) is made as of June 22,\n2016, by and between Nat Krishnamurti, who currently resides at [ ] (“Employee”) and Interpace Diagnostics Group, Inc. (formerly PDI,\nInc. and hereinafter together with PDI, Inc., Interpace Diagnostics Corporation, and Interpace Diagnostics, LLC referred to as “Employer”),\nhaving its principal place of business at Morris Corporate Center 1-Building A/B, 300 Interpace Parkway, Parsippany, New Jersey 07054\n(collectively the “Parties”).\nWHEREAS, Employee is presently serving and continues to serve as Chief Financial Officer, Treasurer, and Secretary of\nEmployer;\nWHEREAS, Employer will continue to employ Employee in a position of trust and confidence to aid Employer in its\nBusiness;\nWHEREAS, Employer desires to receive from Employee a covenant not to disclose certain information relating to\nEmployer ’s Business and certain other covenants;\nWHEREAS, as a material inducement to Employer to employ and continue to employ Employee and pay Employee salary\nand other remuneration and benefits during his employment, Employee has agreed to such covenants; and\nWHEREAS, Employer and Employee desire to set forth, in writing, the terms and conditions of their agreements and\nunderstandings with respect to such covenants.\nNOW, THEREFORE, in consideration of the foregoing, of the mutual promises herein contained, and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto intending to be legally bound, agree as\nfollows:\n1. Business. For purposes of this Agreement, the Business of Employer consists of developing and conducting molecular\ndiagnostic testing to assist in the treatment of pancreatic, biliary, esophageal and thyroid cancers (the “Business”). The Business is highly\ncompetitive and specialized involving highly sensitive information.\n2. Employer. As used herein, the term “Employer” shall mean Interpace Diagnostics Group, Inc. (formerly and including\nPDI, Inc.); Interpace Diagnostics, LLC; Interpace Diagnostics Corporation; and any and all related or affiliated entities, including, but not\nlimited to any other business entity which is, was, or becomes a predecessor, subsidiary, or parent of the above-listed entities and/or which is,\nwas, or becomes an affiliate of one or more of the above-listed entities by virtue of common (although not identical) ownership and for which\nEmployee is providing services in any form during his employment with Employer.\n1\n3. Notice.\nAny notice required to, or permitted to, be given hereunder shall be sufficient if in writing (a) delivered\npersonally, (b) sent by first class certified mail, return receipt requested, postage and fees prepaid, or (c) sent by prepaid overnight delivery\nservice, to the parties at the following addresses (or at such other addresses as shall be specified by the parties in a like notice):\nIf to Employer:\nInterpace Diagnostics Group, Inc.\nMorris Corporate Center I\nBuilding A/B\n300 Interpace Parkway\nParsippany, New Jersey 07054\nAttn.: Chief Executive Officer\nIf to Employee:\nNat Krishnamurti\n[]\n[]\nAll notices shall be deemed to have been given upon receipt if delivered personally, or by recognized overnight courier, or five\n(5) days after mailing if mailed.\n4.\nConfidential Information, Non-Disclosure. Employee understands and recognizes that in his position as Chief\nFinancial Officer, Treasurer, and Secretary of Employer, he has been and will be afforded substantial access to Confidential Information (as that\nterm is defined below) the unauthorized use, disclosure and/or publication of which would cause Employer to suffer substantial damage to and\ninterfere with the current or contemplated Business of Employer and cause irreparable injury to Employer. Employee further understands and\nrecognizes, therefore, that it is in Employer’s legitimate business interest to restrict Employee’s use of Confidential Information for any purposes\nother than the discharge of Employee’s duties at Employer in furtherance of the Business, and to limit any potential appropriation of\nConfidential Information by Employee for the benefit of Employer’s competitors and to the detriment of Employer. Accordingly, Employee\nagrees as follows:\na. During and after Employee’s employment with Employer, Employee will not, without the prior written consent\nof Employer, or as may otherwise be required by law or legal process, communicate or disclose to any other person or company, or use for\nEmployee’s own personal benefit, except as may be necessary in the performance of Employee’s duties as an employee of Employer, any\nConfidential Information disclosed to him or of which Employee became aware or developed or was given access to by reason of Employee’s\nemployment or association with Employer.\nb. The term “Confidential Information” means any and all data and information relating to Employer and/or its\nBusiness (whether or not it constitutes a trade secret) or data and information received by Employer from third parties including, but not limited\nto, customers, clients, patients and business partners in confidence (or subject to a Non-Disclosure covenant), which is, or has been, disclosed to\nEmployee or of which Employee became or becomes aware as a consequence of his employment relationship with Employer, and which has\nvalue to Employer and is not generally known by Employer’s competitors including, but not limited to, information concerning Employer’s\nbusiness, and information of third parties, which Employer is required to maintain as confidential. Confidential Information shall not include\nany data or information that has been disclosed voluntarily to the public by Employer (except when such public disclosure has been made by\nEmployee or some other person without authorization from Employer), or that has been independently developed and disclosed by others, or\nthat otherwise enters the public domain through lawful and legitimate means.\n2\nEmployee hereby expressly agrees that Confidential Information is the exclusive property of Employer, to be held by\nEmployee in trust and solely for Employer’s benefit and shall not be used by Employee or disclosed by Employee to others, either during or\nafter Employee’s employment without Employer’s advance written consent, except where required for Employee to properly perform\nEmployee’s job duties for Employer. This promise is binding on Employee regardless of the reason(s) for the termination of Employee’s\nemployment. Employee further agrees to comply with all rules, policies and procedures established by Employer from time-to-time, which are\ndesigned to protect and ensure the continued confidentiality of the Confidential Information and all applicable law.\nc. Employee understands and agrees that upon termination of Employee’s employment with Employer, Employee\nwill not take with him, or retain, without written authorization from Employer, any documents, files or other property of Employer, and\nEmployee will promptly return to Employer any such documents, files or property in his possession or control, including all copies, extracts,\nreproductions or notes, as may have been made by or on behalf of Employee. If Employee has stored Confidential Information on any personal\ndesktop or laptop devices, Personal Digital Assistants (“PDAs”), mobile/smart phones, external hard drives, “flash” or similar USB storages\ndevices, Fire Wire storage devices, digital music players, digital tapes, floppy diskettes, CDs, DVDs, memory cards, zip diskettes, as well as\nmaintained in personal e-mail accounts (including web based e-mail accounts such as Hotmail, Gmail, Yahoo, etc.) and other electronic or\nonline communications applications, such as text messaging, social media networks (i.e . Facebook, LinkedIn, My Space, etc.), chat rooms and\nsimilar environments and all other media, which can be utilized to store or transmit electronic data and communications (regardless of whether\nthe media utilized is owned by Employer, Employee or a third party, or where the media is located) then Employee must make those devices\navailable to Employer or provide access to those accounts or communications in order to enable Employer to search for such Confidential\nInformation and to remove and/or make complete copies of the media/communications and all information stored to the extent permitted by law\nor to the extent not permitted by law to otherwise arrange for the return and/or removal of such Confidential Information to Employer, as\nappropriate.\nEmployee acknowledges and agrees that this list is not comprehensive and includes technological advancements in methods,\ndevices and locations for storing and communicating data that could include Confidential Information covered by this provision. For this\npurpose, Employee agrees that he has no expectation of privacy with respect to the various media and communications referred to above, except\nto the extent otherwise provided by law.\n3\nIn connection with this Confidentiality Agreement, Employee recognizes that all documents, files and property, which\nEmployee has received or will receive from Employer, including, but not limited to, handbooks, memoranda, policy manuals, product\nspecifications and other materials, with the exception of documents relating to benefits to which Employee might be entitled following the\ntermination of his employment with Employer, are for the exclusive use of Employer and employees discharging their responsibilities on behalf\nof Employer, and that Employee has no claim or right to the continued use, possession or custody of such material following the termination of\nhis employment with Employer.\nIf Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative\ndemand or similar process) to disclose any Confidential Information, Employee shall provide Employer with prompt written notice of such\nrequirement so Employer may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Paragraph 4\nof this Confidentiality Agreement. If such protective order or other remedy is not obtained, or Employer waives compliance with the provisions\nof this Paragraph 4, Employee agrees to furnish only that portion of the Confidential Information, which he is advised by written opinion of\nlegal counsel is legally required and to exercise best efforts to obtain assurances that confidential treatment will be accorded such Confidential\nInformation.\n5. Non-Solicitation. Except as otherwise approved in writing by Employer, Employee agrees that Employee will not,\ndirectly or indirectly, with or through any family member, or former directors, officers or employees of Employer, or acting alone or as a\nmember of a partnership or limited liability company or as an officer, holder of or investor in as much as five (5%) percent of any security of\nany class, director, employee, consultant or representative of any corporation or other business entity at any time during Employee’s\nemployment with Employer, and for a period of two (2) years following cessation of Employee’s employment with Employer for any reason,\ninterfere with, or seek to interfere with the relationship or otherwise alter, limit or terminate such relationship between Employer and the\nfollowing: (a) any employee of Employer or any person who was employed by Employer at any time within one (1) year prior to the cessation\nof Employee’s employment with Employer, which prohibited interference includes inducing or attempting to induce any person to leave\nemployment with Employer or hiring any such person; (b) any of the customers or clients of Employer then existing or existing at any time\nwithin one (1) year prior to the cessation of Employee’s employment with Employer with which Employee personally had contact or access to\nConfidential Information about, or (c) any of the suppliers or licensees of Employer, then existing or existing at any time within one (1) year\nprior to cessation of Employee’s employment with Employer.\n6.\nNon-Competition.\nIt is recognized and understood by the parties hereto that Employee, through Employee’s\nassociation with Employer, has acquired and shall continue to acquire a considerable amount of knowledge and goodwill with respect to the\nBusiness of Employer, as well as access to Employer’s clients and customers, which knowledge, goodwill and relationships are extremely\nvaluable to Employer and which would be extremely detrimental to Employer if used by Employee to compete with Employer. It is therefore\nunderstood and agreed to by the parties hereto that because of the nature of the Business of Employer, it is necessary to afford fair protection to\nEmployer from competition by Employee. Consequently, as a material inducement to employ and continue to employ Employee, Employee\ncovenants and agrees that he will not, directly or indirectly, with or through any family member, or former director, officer or employee of\nEmployer, or acting alone or as a member of a partnership or limited liability company, or as an officer of or investor in as much as five (5%)\npercent of any security of any class, director, employee, consultant or representative of any corporation or other business entity at any time while\nemployed by Employer, and for a period of one (1) year following cessation of Employee’s employment with Employer for any reason, own,\nmanage, operate, control, consult with, or be employed by or with any person, firm, partnership, association, corporation or other business entity\nwhich competes with Employer or performs services which are substantially similar to its Business in the United States of America.\n4\n7. Rights to Intellectual Property. All inventions, improvements, modifications, ideas, styles, trade names and the like,\nwhether or not reduced to writing or stored electronically or otherwise and whether or not protectable by patent, trademark, copyright or other\nintellectual property law, which relate or are susceptible for use directly or indirectly in Employer ’s Business that are originated in whole, or in\npart, by Employee (alone or jointly with others) during his term of employment with Employer, irrespective of whether they were conceived,\ndeveloped, suggested or perfected (i) during Employee’s regular working hours, (ii) with the use of Employer ’s time, materials or facilities or\n(iii) within one (1) year following the termination of Employee’s employment with Employer or otherwise attributable to Employee’s\nemployment with Employer shall become and remain the exclusive property of Employer. If any one or more of the aforementioned are deemed\nin any way to fall within the definition of “work made for hire,” as such term is defined in 17 U.S.C. §101, such work shall be considered a\n“work made for hire,” the copyright of which shall be owned solely by, or assigned or transferred completely and exclusively to Employer. At\nthe request and expense of Employer, Employee shall cooperate with Employer, in applying for, prosecuting, and obtaining patent, trademark,\nservice mark, trade name and copyright registrations in the name of Employer.\nEmployee shall promptly disclose, grant and assign ownership to Employer, for its sole use and benefit, any and all inventions,\nimprovements, information and copyrights (whether patentable or not), which he may develop, acquire, conceive or reduce to practice, while\nemployed by Employer (whether or not during usual working hours) together with all patent applications, letters, patent, copyrights and reissues\nthereof, that may at any time be granted for or upon any such invention, improvement or information; provided, however, that Employee shall\nown any invention, which Employee can demonstrate has no relationship to the Business, and which was neither conceived, nor made by use of\nany of the time, facilities or materials of Employer. In connection therewith:\na.\nEmployee shall without charge, but at the expense of Employer, promptly at all times thereafter execute and\ndeliver such applications, assignments, descriptions and other instruments, as may be reasonably necessary or proper in the opinion of Employer\nto vest title to any such inventions, improvements, technical information, patent applications, patents, copyrights or reissues thereof in\nEmployer, and to enable it to obtain and maintain the entire right and title thereto throughout the world; and\nb. Employee shall render to Employer at its expense (including reimbursement to Employee of reasonable out-of-\npocket expenses incurred by Employee and a reasonable payment for Employee’s time involved in case he is not then in its employ) all such\nassistance as it may require in the prosecution of applications for said patents, copyright or reissues thereof, in the prosecution, or defense of\ninterferences, which may be declared involving any said applications, patents or copyrights and in any litigation in which Employer may be\ninvolved relating to any such patents, inventions, improvements or technical improvements.\n5\nIn the event that Employer is unable to, after reasonable effort, secure Employee’s signature on any document(s) needed to\napply for or secure any copyright or patent, for any reason whatsoever, Employee hereby designates Employer, and its duly authorized officers\nand agents, as Employee’s agent and attorney-in-fact to execute and file any such application(s), and to perform all other legally permitted acts\nto further the prosecution and issuance of copyrights and patents, or similar protection thereon, which shall have the same legal form and effect\nas if executed by Employee.\nEmployee hereby represents and warrants that Employee has fully described to Employer on Schedule A appended hereto any\nidea, invention, product, improvement, computer software program or other equipment or technology related to the Business of Employer\n(“Inventions”), not covered in this Paragraph 7, which prior to his employment with Employer, Employee conceived of or developed, wholly or\nin part, and in which Employee has any right, title or proprietary interest, and whether directly related to Employer’s Business, but which has not\nbeen published or filed with the United States Patent and Trademark or Copyright Offices or any other patent or copyright office or assigned or\ntransferred to Employer. If there is no such Schedule A, Employee represents that Employee has made no such Inventions at the time of signing\nthis Agreement or Employee hereby assigns such Inventions to Employer.\nWith respect to this Paragraph 7, it is agreed and acknowledged that during Employee’s employment, Employer may enter\nother lines of business, which are related or unrelated to its Business, in which case this Agreement would be expanded to cover such new lines\nof business.\nIn the event that Employer gives written notice to Employee that Employer elects not to apply for a patent in a jurisdiction for\nan item above, which is patentable then Employee may, at his own cost and expense, apply for a patent therefor in his own name in such\njurisdiction.\n8. Reasonableness of Restrictions.\na.\nEmployee has carefully read and considered the provisions of Paragraphs 4 through 7 hereof, and having done\nso agrees that the restrictions set forth therein are fair and reasonable and are reasonably required for the protection of the interests of Employer,\nits stockholders, directors, officers, employees, and successors and assigns and that Employer would not have employed Employee in the\nabsence of agreement to such restrictions and that any violation of any provisions of Paragraphs 4 through 7 will result in irreparable injury to\nEmployer. Employee further represents and acknowledges that (i) Employee has been advised by Employer to consult his counsel prior to\nexecution and delivery of this Agreement, and (ii) that Employee has had full opportunity, prior to execution and delivery of this Agreement, to\nreview thoroughly this Agreement with his counsel.\n6\nEmployee further understands and agrees that Employer shall be entitled to preliminary and permanent injunctive relief,\nwithout the necessity of proving actual damages, as well as an equitable accounting of all earnings, profits and other benefit, arising from any\nviolation of Paragraphs 4 through 7, which rights shall be cumulative, and in addition to any other rights or remedies to which Employer may be\nentitled hereunder or now or hereafter existing in law or equity. No delay or omission by a party hereto in exercising any right, remedy or power\nhereunder or existing at law or in equity shall be construed as a waiver thereof.\nb. To the extent any portion of any provision of this Agreement is held to be invalid or unenforceable, the language\nshall be construed by limiting and/or reducing it so as to be enforceable to the extent compatible with applicable law. All remaining provisions\nand/or portions thereof shall remain in full force and effect.\n9. Binding Effect. This Agreement shall be binding upon and inure to the benefit of and be enforceable by Employer and its\nsuccessors and assigns, and shall be binding upon and inure to the benefit of and be enforceable by Employee and his estate, heirs,\nadministrators and legal representatives. This Agreement is not assignable by Employee but is assignable by Employer to any successor to all, or\nsubstantially all, of its Business, assets or other reorganization to which it may become a party, provided that, such assignee assumes all of the\nobligations of Employer hereunder.\n10.\nEntire Agreement and Amendment. This Agreement constitutes the entire agreement between Employer and\nEmployee with respect to the restrictive covenants set forth in Paragraphs 4 through 7 of this Agreement and supersedes all prior agreements,\nwritten or oral with respect thereto. This Agreement cannot be changed or modified, except upon written amendment executed by Employee and\nexecuted on Employer’s behalf by a duly authorized officer.\nNothing in this Agreement shall be construed as changing or modifying the “at will” nature of Employee’s employment with\nEmployer, pursuant to which the Parties acknowledge and agree that Employee’s employment with Employer is “at will” and that Employee’s\nemployment may be terminated by Employee or Employer at any time, for any reason or for no reason.\n11. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New\nJersey, without regard to its conflicts of law provisions.\nAny claim arising out of, or relating to this Agreement including, without limitation, any action commenced by Employer for\npreliminary and permanent injunctive relief or other equitable relief, shall be instituted in any federal or state court in the State of New Jersey.\nEach party agrees not to assert by way of motion, as a defense or otherwise, in any such claim, that such party is not subject personally to the\njurisdiction of such court, that the claim is brought in an inconvenient forum, that the venue of the claim is improper or that this Agreement or\nthe subject matter hereof may not be enforced in or by such court. Each party further irrevocably submits to the exclusive jurisdiction of such\ncourt in any such claim.\n7\nAny and all service of process and any other notice in any such claim shall be effective against any party if given personally or\nby registered mail, return receipt requested, mailed to such party as provided herein. Nothing herein contained shall be deemed to affect the right\nof any party to serve process in any manner permitted by law.\n12. Usage.\nAll pronouns and any variations thereof shall be considered to refer to the masculine, feminine or neuter,\nsingular or plural, as the context may require. All terms defined in the Agreement in their singular or plural forms have correlative meanings\nwhen used herein in their singular or plural forms, respectively. Unless otherwise expressly provided the words “include” “includes” and\n“including” do not limit the preceding words or terms and shall be deemed followed by the words “without limitation.”\n13.\nHeadings. The headings in this Agreement are for reference only, and shall not affect the interpretation of this\nAgreement.\n14. Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so\nexecuted and delivered shall be an original, but all such counterparts, together shall constitute one, and the same, instrument. Each counterpart\nmay consist of a number of copies hereof each signed by less than all, but together signed by all of the parties hereto.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.\nINTERPACE DIAGNOSTICS GROUP, INC.\nBy: /s/ Jack Stover\nName: Jack\nStover\nTitle: Chief Executive Officer\nEMPLOYEE\n/s/ Nat Krishnamurti\nName: Nat Krishnamurti\nTitle: Chief Financial Officer, Treasurer, and Secretary\n8
+159ce2a2e6936e25efdc717e2a623497.pdf	effective_date jurisdiction party term	EX-10 .6 .2 22 v321826_ex10-6x2.htm EXHIBIT 10.6 .2\nExhibit 10.6.2\nINVENTION, NON-DISCLOSURE, AND NON-SOLICITATION AGREEMENT\nThis Invention, Non-Disclosure, and Non-Solicitation Agreement is made by and between Intercept Pharmaceuticals, Inc. (the\n“Company”) and David Shapiro (the “Employee”).\nIN CONSIDERATION of the Employee's employment by the Company, and for other good and valuable consideration, the sufficiency\nof which is hereby acknowledged, the Employee agrees as follows:\n1.\nCondition of Employment.\nThe Employee acknowledges that his/her employment with the Company is contingent upon his/her agreement to sign and adhere to the\nprovisions of this Invention, Non-Disclosure, and Non-Solicitation Agreement (the “Agreement”).\n2.\nProprietary and Confidential Information.\n(a)\nThe Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods,\ntechniques, formulas, compositions, compounds, projects, developments, plans (including business and marketing plans), research data, clinical\ndata, financial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used pursuant to a\nlicense agreement), customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any\npurposes (other than in the performance of his/her duties as an employee of the Company) without written approval by an officer of the\nCompany, either during or after his/her employment with the Company, unless and until such Proprietary Information has become public\nknowledge without fault by the Employee.\n(b) The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models,\nlaboratory notebooks, program listings, computer equipment or devices, computer programs or other written, photographic, or other tangible\nmaterial containing Proprietary Information, whether created by the Employee or others, which shall come into his/her custody or possession,\nshall be and are the exclusive property of the Company to be used by the Employee only in the performance of his/her duties for the Company\nand shall not be copied or removed from the Company premises except in the pursuit of the business of the Company. All such materials or\ncopies thereof and all tangible property of the Company in the custody or possession of the Employee shall be delivered to the Company, upon\nthe earlier of (i) a request by the Company or (ii) termination of his/her employment. After such delivery, the Employee shall not retain any such\nmaterials or copies thereof or any such tangible property.\n(c)\nThe Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in\nparagraphs (a) and (b) above, and his/her obligation to return materials and tangible property set forth in paragraph (b) above also extends to such\ntypes of information, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may\nhave disclosed or entrusted the same to the Company or to the Employee.\n3.\nInventions.\n(a)\nThe Employee will make full and prompt disclosure to the Company of all inventions, creations, improvements, discoveries,\ntrade secrets, secret processes, technology, know-how, methods, developments, software, and works of authorship or other creative works,\nwhether patentable or not, which are created, made, conceived or reduced to practice by the Employee or under the Employee's direction or\njointly with others during his/her employment by the Company, whether or not during normal working hours or on the premises of the Company\n(all of which are collectively referred to in this Agreement as “Inventions”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all\nhis/her right, title and interest in and to all Inventions and all related patents, patent applications, copyrights and copyright applications to the\nmaximum extent permitted by Section 2870 of the California Labor Code or any like statute of any other state. The Employee hereby also waives\nall claims to moral rights in any Inventions. The Employee understands that the provisions of this Agreement requiring assignment of Inventions\nto the Company do not apply to any invention which qualifies fully under the provisions of California Labor Code Section 2870 (attached hereto\nas Exhibit A). The Employee agrees to advise the Company promptly in writing of any inventions that he/she believes meets the criteria in\nSection 2870 and not otherwise disclosed on Exhibit B.\n(c)\nThe Employee agrees to cooperate fully with the Company and to take such further actions as may be necessary or desirable,\nboth during and after his/her employment with the Company, with respect to the procurement, maintenance and enforcement of copyrights,\npatents and other intellectual property rights (both in the United States and foreign countries) relating to Inventions. The Employee shall sign all\npapers, including, without limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignments of priority\nrights, and powers of attorney, which the Company may deem necessary or desirable in order to protect its rights and interests in any Invention.\nThe Employee further agrees that if the Company is unable, after reasonable effort, to secure the signature of the Employee on any such papers,\nany executive officer of the Company shall be entitled to execute any such papers as the agent and the attorney-in-fact of the Employee, and the\nEmployee hereby irrevocably designates and appoints each executive officer of the Company as his/her agent and attorney-in-fact to execute any\nsuch papers on his/her behalf, and to take any and all actions as the Company may deem necessary or desirable in order to protect its rights and\ninterests in any Invention, under the conditions described in this sentence.\n2\n4.\nOther Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not\nbound by the terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or\nconfidential or proprietary information in the course of his/her employment with the Company, to refrain from competing, directly or indirectly,\nwith the business of such previous employer or any other party, or to refrain from soliciting employees, customers or suppliers of such previous\nemployer or other party. The Employee further represents that his/her performance of all the terms of this Agreement and the performance of\nhis/her duties as an employee of the Company do not and will not breach any agreement with any prior employer or other party to which the\nEmployee is a party (including without limitation any non-disclosure or non-competition agreement), and that the Employee will not disclose to\nthe Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or\nothers.\n5.\nUnited States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with other persons or with the United\nStates Government, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course\nof work under such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions that are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n6.\nNot An Employment Contract.\nThe Employee acknowledges that this Agreement does not constitute a contract of employment, either express or implied, and does not\nimply that the Company will continue the Employee’s employment for any period of time.\n7.\nGeneral Provisions.\n(a)\nNo Conflict. The Employee represents that the execution and performance by him/her of this Agreement does not and\nwill not conflict with or breach the terms of any other agreement by which the Employee is bound.\n(b)\nEntire Agreement. This Agreement supersedes all prior agreements, written or oral, between the Employee and the\nCompany relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in\npart, except by an agreement in writing signed by the Employee and the Company. The Employee agrees that any change or changes in\nhis/her duties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\n3\n(c)\nSeverability. The invalidity or unenforceability of any provision of this Agreement shall not affect or impair the\nvalidity or enforceability of any other provision of this Agreement.\n(d)\nWaiver. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of\nthat or any other right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be\nconstrued as a bar to or waiver of any right on any other occasion.\n(e)\nEmployee Acknowledgment and Equitable Remedies. The Employee acknowledges that the restrictions contained in\nthis Agreement are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be\nreasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the Company substantial and\nirrevocable damage and therefore, in the event of any breach or threatened breach of this Agreement, the Employee agrees that the\nCompany, in addition to such other remedies that may be available, shall be entitled to specific performance and other injunctive relief\nwithout posting a bond, and the Employee hereby waives the adequacy of a remedy at law as a defense to such relief.\n(f)\nSuccessors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their\nrespective successors and assigns, including any corporation or entity with which or into which the Company may be merged or which\nmay succeed to all or substantially all of its assets or business, provided however that the obligations of the Employee are personal and\nshall not be assigned by the Employee.\n(g)\nSubsidiaries and Affiliates. The Employee expressly consents to be bound by the provisions of this Agreement for the\nbenefit of the Company or any subsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity\nthat this Agreement be re-signed at the time of such transfer.\n(h)\nGoverning Law, Forum and Jurisdiction. This Agreement shall be governed by and construed as a sealed instrument\nunder and in accordance with the laws of the State of New York without regard to conflict of laws provisions. Any action, suit, or other\nlegal proceeding which is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be\ncommenced only in a court of the State of New York (or, if appropriate, a federal court located within New York), and the Company and\nthe Employee each consents to the jurisdiction of such a court.\n(i)\nCaptions. The captions of the sections of this Agreement are for convenience of reference only and in no way define,\nlimit or affect the scope or substance of any section of this Agreement.\n4\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS\nAND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nWITNESS our hands and seals:\nINTERCEPT PHARMACEUTICALS, INC.\n/s/ Mark Pruzanski\nMarch 21, 2008\nBy: Mark E. Pruzanski, MD\nDate\nPresident and Chief Executive Officer\nDavid Shapiro, MD\n/s/ David Shapiro\nMarch 31st 2008\nDate\n5\nExhibit A\nCALIFORNIA LABOR CODE SECTION 2870\n(a)\nAny provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her\nrights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time\nwithout using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1)\nRelate at the time of conception or reduction to practice of the invention to the employer's business, or actual or\ndemonstrably anticipated research or development of the employer, or\n(2)\nResult from any work performed by the employee for his employer.\n(b)\nTo the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise\nexcluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is\nunenforceable.\n6\nExhibit B\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP:\nTitle\nDate\nIdentifying Number or Brief Description\nX\nNo inventions or improvements\nAdditional Sheets Attached\nSignature of Employee:\n/s/ David Shapiro\nPrinted Name of Employee:\nDavid Shapiro\nDate: 31st March 2008\n7	EX-10.6.2 22 v321826_ex10-6x2.htm EXHIBIT 10.6.2\nExhibit 10.6.2\nINVENTION, NON-DISCLOSURE, AND NON-SOLICITATION AGREEMENT\nThis Invention, Non-Disclosure, and Non-Solicitation Agreement is made by and between Intercept Pharmaceuticals, Inc. (the\n“Company”) and David Shapiro (the “Employee”).\nIN CONSIDERATION of the Employee's employment by the Company, and for other good and valuable consideration, the sufficiency\nof which is hereby acknowledged, the Employee agrees as follows:\n1. Condition of Employment.\nThe Employee acknowledges that his/her employment with the Company is contingent upon his/her agreement to sign and adhere to the\nprovisions of this Invention, Non-Disclosure, and Non-Solicitation Agreement (the “Agreement”).\n2. Proprietary and Confidential Information.\n@) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information™) is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods,\ntechniques, formulas, compositions, compounds, projects, developments, plans (including business and marketing plans), research data, clinical\ndata, financial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used pursuant to a\nlicense agreement), customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any\npurposes (other than in the performance of his/her duties as an employee of the Company) without written approval by an officer of the\nCompany, either during or after his/her employment with the Company, unless and until such Proprietary Information has become public\nknowledge without fault by the Employee.\n(b) The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models,\nlaboratory notebooks, program listings, computer equipment or devices, computer programs or other written, photographic, or other tangible\nmaterial containing Proprietary Information, whether created by the Employee or others, which shall come into his/her custody or possession,\nshall be and are the exclusive property of the Company to be used by the Employee only in the performance of his/her duties for the Company\nand shall not be copied or removed from the Company premises except in the pursuit of the business of the Company. All such materials or\ncopies thereof and all tangible property of the Company in the custody or possession of the Employee shall be delivered to the Company, upon\nthe earlier of (i) a request by the Company or (ii) termination of his/her employment. After such delivery, the Employee shall not retain any such\nmaterials or copies thereof or any such tangible property.\n(0 The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in\nparagraphs (a) and (b) above, and his/her obligation to return materials and tangible property set forth in paragraph (b) above also extends to such\ntypes of information, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may\nhave disclosed or entrusted the same to the Company or to the Employee.\n3. Inventions.\n@) The Employee will make full and prompt disclosure to the Company of all inventions, creations, improvements, discoveries,\ntrade secrets, secret processes, technology, know-how, methods, developments, software, and works of authorship or other creative works,\nwhether patentable or not, which are created, made, conceived or reduced to practice by the Employee or under the Employee's direction or\njointly with others during his/her employment by the Company, whether or not during normal working hours or on the premises of the Company\n(all of which are collectively referred to in this Agreement as “Inventions”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all\nhis/her right, title and interest in and to all Inventions and all related patents, patent applications, copyrights and copyright applications to the\nmaximum extent permitted by Section 2870 of the California Labor Code or any like statute of any other state. The Employee hereby also waives\nall claims to moral rights in any Inventions. The Employee understands that the provisions of this Agreement requiring assignment of Inventions\nto the Company do not apply to any invention which qualifies fully under the provisions of California Labor Code Section 2870 (attached hereto\nas Exhibit A). The Employee agrees to advise the Company promptly in writing of any inventions that he/she believes meets the criteria in\nSection 2870 and not otherwise disclosed on Exhibit B.\n(0 The Employee agrees to cooperate fully with the Company and to take such further actions as may be necessary or desirable,\nboth during and after his/her employment with the Company, with respect to the procurement, maintenance and enforcement of copyrights,\npatents and other intellectual property rights (both in the United States and foreign countries) relating to Inventions. The Employee shall sign all\npapers, including, without limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignments of priority\nrights, and powers of attorney, which the Company may deem necessary or desirable in order to protect its rights and interests in any Invention.\nThe Employee further agrees that if the Company is unable, after reasonable effort, to secure the signature of the Employee on any such papers,\nany executive officer of the Company shall be entitled to execute any such papers as the agent and the attorney-in-fact of the Employee, and the\nEmployee hereby irrevocably designates and appoints each executive officer of the Company as his/her agent and attorney-in-fact to execute any\nsuch papers on his/her behalf, and to take any and all actions as the Company may deem necessary or desirable in order to protect its rights and\ninterests in any Invention, under the conditions described in this sentence.\n4. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not\nbound by the terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or\nconfidential or proprietary information in the course of his/her employment with the Company, to refrain from competing, directly or indirectly,\nwith the business of such previous employer or any other party, or to refrain from soliciting employees, customers or suppliers of such previous\nemployer or other party. The Employee further represents that his/her performance of all the terms of this Agreement and the performance of\nhis/her duties as an employee of the Company do not and will not breach any agreement with any prior employer or other party to which the\nEmployee is a party (including without limitation any non-disclosure or non-competition agreement), and that the Employee will not disclose to\nthe Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or\nothers.\n5. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with other persons or with the United\nStates Government, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course\nof work under such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions that are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n6. Not An Employment Contract.\nThe Employee acknowledges that this Agreement does not constitute a contract of employment, either express or implied, and does not\nimply that the Company will continue the Employee’s employment for any period of time.\n7. General Provisions.\n@) No Conflict. The Employee represents that the execution and performance by him/her of this Agreement does not and\nwill not conflict with or breach the terms of any other agreement by which the Employee is bound.\n(b) Entire Agreement. This Agreement supersedes all prior agreements, written or oral, between the Employee and the\nCompany relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in\npart, except by an agreement in writing signed by the Employee and the Company. The Employee agrees that any change or changes in\nhis/her duties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\n \n(©) Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect or impair the\nvalidity or enforceability of any other provision of this Agreement.\n(d Waiver. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of\nthat or any other right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be\nconstrued as a bar to or waiver of any right on any other occasion.\n(e) Employee Acknowledgment and Equitable Remedies. The Employee acknowledges that the restrictions contained in\nthis Agreement are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be\nreasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the Company substantial and\nirrevocable damage and therefore, in the event of any breach or threatened breach of this Agreement, the Employee agrees that the\nCompany, in addition to such other remedies that may be available, shall be entitled to specific performance and other injunctive relief\nwithout posting a bond, and the Employee hereby waives the adequacy of a remedy at law as a defense to such relief.\n® Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their\nrespective successors and assigns, including any corporation or entity with which or into which the Company may be merged or which\nmay succeed to all or substantially all of its assets or business, provided however that the obligations of the Employee are personal and\nshall not be assigned by the Employee.\n(® Subsidiaries and Affiliates. The Employee expressly consents to be bound by the provisions of this Agreement for the\nbenefit of the Company or any subsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity\nthat this Agreement be re-signed at the time of such transfer.\n(h) Governing Law, Forum and Jurisdiction. This Agreement shall be governed by and construed as a sealed instrument\nunder and in accordance with the laws of the State of New York without regard to conflict of laws provisions. Any action, suit, or other\nlegal proceeding which is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be\ncommenced only in a court of the State of New York (or, if appropriate, a federal court located within New York), and the Company and\nthe Employee each consents to the jurisdiction of such a court.\n@) Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define,\nlimit or affect the scope or substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS\nAND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nWITNESS our hands and seals:\nINTERCEPT PHARMACEUTICALS, INC.\n/s/ Mark Pruzanski March 21, 2008 By: Mark E. Pruzanski, MD Date\nPresident and Chief Executive Officer\nDavid Shapiro, MD\n/s/ David Shapiro March 3152008 Date\nExhibit A\nCALIFORNIA LABOR CODE SECTION 2870\n@) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her\nrights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time\nwithout using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either:\nD Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or\ndemonstrably anticipated research or development of the employer, or\n2 Result from any work performed by the employee for his employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise\nexcluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is\nunenforceable.\nTitle Date\nSignature of Employee:\nPrinted Name of Employee:\nDate: 315! March 2008\nExhibit B\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP:\nIdentifying Number or Brief Description\nNo inventions or improvements\nAdditional Sheets Attached\n/s/ David Shapiro\nDavid Shapiro	EX-10.6.2 22 v321826_ex10-6x2.htm EXHIBIT 10.6.2\nExhibit 10.6.2\nINVENTION, NON-DISCLOSURE, AND NON-SOLICITATION AGREEMENT\nThis Invention, Non-Disclosure, and Non-Solicitation Agreement is made by and between Intercept Pharmaceuticals, Inc. (the\n"Company") and David Shapiro (the "Employee").\nIN CONSIDERATION of the Employee's employment by the Company, and for other good and valuable consideration, the sufficiency\nof which is hereby acknowledged, the Employee agrees as follows:\n1.\nCondition of Employment.\nThe Employee acknowledges that his/her employment with the Company is contingent upon his/her agreement to sign and adhere to the\nprovisions of this Invention, Non-Disclosure, and Non-Solicitation Agreement (the "Agreement").\n2.\nProprietary. and Confidential Information.\n(a)\nThe Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany's business, business relationships or financial affairs (collectively, "Proprietary Information") is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods,\ntechniques, formulas, compositions, compounds, projects, developments, plans (including business and marketing plans), research data, clinical\ndata, financial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used pursuant to a\nlicense agreement), customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any\npurposes (other than in the performance of his/her duties as an employee of the Company) without written approval by an officer of the\nCompany, either during or after his/her employment with the Company, unless and until such Proprietary Information has become public\nknowledge without fault by the Employee.\n(b)\nThe Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models,\nlaboratory\nnotebooks,\nprogram listings, computer equipment or devices, computer programs or other written, photographic, or other tangible\nmaterial containing Proprietary Information, whether created by the Employee or others, which shall come into his/her custody or possession,\nshall be and are the exclusive property of the Company to be used by the Employee only in the performance of his/her duties for the Company\nand shall not be copied or removed from the Company premises except in the pursuit of the business of the Company. All such materials or\ncopies thereof and all tangible property of the Company in the custody or possession of the Employee shall be delivered to the Company, upon\nthe earlier of (i) a request by the Company or (ii) termination of his/her employment. After such delivery, the Employee shall not retain any such\nmaterials or copies thereof or any such tangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in\nparagraphs (a) and (b) above, and his/her obligation to return materials and tangible property set forth in paragraph (b) above also extends to such\ntypes of information, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may\nhave disclosed or entrusted the same to the Company or to the Employee.\n3.\nInventions.\n(a)\nThe Employee will make full and prompt disclosure to the Company of all inventions, creations, improvements, discoveries,\ntrade secrets, secret processes, technology, know-how, methods, developments, software, and works of authorship or other creative works,\nwhether patentable or not, which are created, made, conceived or reduced to practice by the Employee or under the Employee's direction or\njointly with others during his/her employment by the Company, whether or not during normal working hours or on the premises of the Company\n(all of which are collectively referred to in this Agreement as "Inventions").\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all\nhis/her right, title and interest in and to all Inventions and all related patents, patent applications, copyrights and copyright applications to the\nmaximum extent permitted by Section 2870 of the California Labor Code or any like statute of any other state. The Employee hereby also waives\nall claims to moral rights in any Inventions. The Employee understands that the provisions of this Agreement requiring assignment of Inventions\nto the Company do not apply to any invention which qualifies fully under the provisions of California Labor Code Section 2870 (attached hereto\nas Exhibit A). The Employee agrees to advise the Company promptly in writing of any inventions that he/she believes meets the criteria in\nSection 2870 and not otherwise disclosed on Exhibit B.\n(c)\nThe Employee agrees to cooperate fully with the Company and to take such further actions as may be necessary or desirable,\nboth\nduring and after his/her employment with the Company, with respect to the procurement, maintenance and enforcement of copyrights,\npatents and other intellectual property rights (both in the United States and foreign countries) relating to Inventions. The Employee shall sign all\npapers, including, without limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignments of priority\nrights,\nand powers of attorney, which the Company may deem necessary or desirable in order to protect its rights and interests in any Invention.\nThe Employee further agrees that if the Company is unable, after reasonable effort, to secure the signature of the Employee on any such papers,\nany executive officer of the Company shall be entitled to execute any such papers as the agent and the attorney-in-fact of the Employee, and\nthe\nEmployee\nhereby\nirrevocably\ndesignates\nand\nappoints\neach\nexecutive\nofficer\nof\nthe\nCompany\nas\nhis/her\nagent\nand\nattorney-in-fact\nto\nexecute\nany\nsuch papers on his/her behalf, and to take any and all actions as the Company may deem necessary or desirable in order to protect its rights and\ninterests in any Invention, under the conditions described in this sentence.\n2\n4.\nOther Agreements\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not\nbound by the terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or\nconfidential or proprietary information in the course of his/her employment with the Company, to refrain from competing, directly or indirectly,\nwith the business of such previous employer or any other party, or to refrain from soliciting employees, customers or suppliers of such previous\nemployer or other party. The Employee further represents that his/her performance of all the terms of this Agreement and the performance of\nhis/her duties as an employee of the Company do not and will not breach any agreement with any prior employer or other party to which the\nEmployee is a party (including without limitation any non-disclosure or non-competition agreement), and that the Employee will not disclose to\nthe Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or\nothers.\n5.\nUnited States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with other persons or with the United\nStates Government, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course\nof work under such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations\nand\nrestrictions that are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n6.\nNot An Employment Contract\nThe Employee acknowledges that this Agreement does not constitute a contract of employment, either express or implied, and does not\nimply that the Company will continue the Employee's employment for any period of time.\n7.\nGeneral Provisions.\n(a)\nNo Conflict. The Employee represents that the execution and performance by him/her of this Agreement does not and\nwill not conflict with or breach the terms of any other agreement by which the Employee is bound.\n(b)\nEntire Agreement. This Agreement supersedes all prior agreements, written or oral, between the Employee and the\nCompany relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in\npart, except by an agreement in writing signed by the Employee and the Company. The Employee agrees that any change or changes in\nhis/her duties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\n3\n(c)\nSeverability.. The invalidity or unenforceability of any provision of this Agreement shall not affect or impair the\nvalidity or enforceability of any other provision of this Agreement.\n(d)\nWaiver. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of\nthat or any other right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be\nconstrued as a bar to or waiver of any right on any other occasion.\n(e)\nEmployee Acknowledgment and Equitable Remedies. The Employee acknowledges that the restrictions contained in\nthis Agreement are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be\nreasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the Company substantial and\nirrevocable damage and therefore, in the event of any breach or threatened breach of this Agreement, the Employee agrees that the\nCompany, in addition to such other remedies that may be available, shall be entitled to specific performance and other injunctive relief\nwithout posting a bond, and the Employee hereby waives the adequacy of a remedy at law as a defense to such relief.\n(f)\nSuccessors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their\nrespective successors and assigns, including any corporation or entity with which or into which the Company may be merged or which\nmay succeed to all or substantially all of its assets or business, provided however that the obligations of the Employee are persona and\nshall not be assigned by the Employee.\n(g)\nSubsidiaries and Affiliates. The Employee expressly consents to be bound by the provisions of this Agreement for the\nbenefit of the Company or any subsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity\nthat this Agreement be re-signed at the time of such transfer.\n(h)\nGoverning Law, Forum and Jurisdiction. This Agreement shall be governed by and construed as a sealed instrument\nunder and in accordance with the laws of the State of New York without regard to conflict of laws provisions. Any action, suit, or other\nlegal proceeding which is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be\ncommenced only in a court of the State of New York (or, if appropriate, a federal court located within New York), and the Company and\nthe Employee each consents to the jurisdiction of such a court.\n(i) Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define,\nlimit or affect the scope or substance of any section of this Agreement.\n4\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS\nAND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nWITNESS our hands and seals:\nINTERCEPT PHARMACEUTICALS, INC.\n/s/ Mark Pruzanski\nMarch 21, 2008\nBy: Mark E. Pruzanski, MD\nDate\nPresident and Chief Executive Officer\nDavid Shapiro, MD\n/s/ David Shapiro\nMarch 31st 2008\nDate\n5\nExhibit A\nCALIFORNIA LABOR CODE SECTION 2870\n(a)\nAny provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her\nrights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time\nwithout using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1)\nRelate at the time of conception or reduction to practice of the invention to the employer's business, or actual or\ndemonstrably anticipated research or development of the employer, or\n(2)\nResult from any work performed by the employee for his employer.\n(b)\nTo the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise\nexcluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is\nunenforceable.\n6\nExhibit B\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP:\nTitle\nDate\nIdentifying Number or Brief Description\nX\nNo inventions or improvements\nAdditional Sheets Attached\nSignature of Employee:\n/s/ David Shapiro\nPrinted Name of Employee:\nDavid Shapiro\nDate: 31st March 2008\n7	EX-10 .6 .2 22 v321826_ex10-6x2.htm EXHIBIT 10.6 .2\nExhibit 10.6.2\nINVENTION, NON-DISCLOSURE, AND NON-SOLICITATION AGREEMENT\nThis Invention, Non-Disclosure, and Non-Solicitation Agreement is made by and between Intercept Pharmaceuticals, Inc. (the\n“Company”) and David Shapiro (the “Employee”).\nIN CONSIDERATION of the Employee's employment by the Company, and for other good and valuable consideration, the sufficiency\nof which is hereby acknowledged, the Employee agrees as follows:\n1.\nCondition of Employment.\nThe Employee acknowledges that his/her employment with the Company is contingent upon his/her agreement to sign and adhere to the\nprovisions of this Invention, Non-Disclosure, and Non-Solicitation Agreement (the “Agreement”).\n2.\nProprietary and Confidential Information.\n(a)\nThe Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods,\ntechniques, formulas, compositions, compounds, projects, developments, plans (including business and marketing plans), research data, clinical\ndata, financial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used pursuant to a\nlicense agreement), customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any\npurposes (other than in the performance of his/her duties as an employee of the Company) without written approval by an officer of the\nCompany, either during or after his/her employment with the Company, unless and until such Proprietary Information has become public\nknowledge without fault by the Employee.\n(b) The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models,\nlaboratory notebooks, program listings, computer equipment or devices, computer programs or other written, photographic, or other tangible\nmaterial containing Proprietary Information, whether created by the Employee or others, which shall come into his/her custody or possession,\nshall be and are the exclusive property of the Company to be used by the Employee only in the performance of his/her duties for the Company\nand shall not be copied or removed from the Company premises except in the pursuit of the business of the Company. All such materials or\ncopies thereof and all tangible property of the Company in the custody or possession of the Employee shall be delivered to the Company, upon\nthe earlier of (i) a request by the Company or (ii) termination of his/her employment. After such delivery, the Employee shall not retain any such\nmaterials or copies thereof or any such tangible property.\n(c)\nThe Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in\nparagraphs (a) and (b) above, and his/her obligation to return materials and tangible property set forth in paragraph (b) above also extends to such\ntypes of information, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may\nhave disclosed or entrusted the same to the Company or to the Employee.\n3.\nInventions.\n(a)\nThe Employee will make full and prompt disclosure to the Company of all inventions, creations, improvements, discoveries,\ntrade secrets, secret processes, technology, know-how, methods, developments, software, and works of authorship or other creative works,\nwhether patentable or not, which are created, made, conceived or reduced to practice by the Employee or under the Employee's direction or\njointly with others during his/her employment by the Company, whether or not during normal working hours or on the premises of the Company\n(all of which are collectively referred to in this Agreement as “Inventions”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all\nhis/her right, title and interest in and to all Inventions and all related patents, patent applications, copyrights and copyright applications to the\nmaximum extent permitted by Section 2870 of the California Labor Code or any like statute of any other state. The Employee hereby also waives\nall claims to moral rights in any Inventions. The Employee understands that the provisions of this Agreement requiring assignment of Inventions\nto the Company do not apply to any invention which qualifies fully under the provisions of California Labor Code Section 2870 (attached hereto\nas Exhibit A). The Employee agrees to advise the Company promptly in writing of any inventions that he/she believes meets the criteria in\nSection 2870 and not otherwise disclosed on Exhibit B.\n(c)\nThe Employee agrees to cooperate fully with the Company and to take such further actions as may be necessary or desirable,\nboth during and after his/her employment with the Company, with respect to the procurement, maintenance and enforcement of copyrights,\npatents and other intellectual property rights (both in the United States and foreign countries) relating to Inventions. The Employee shall sign all\npapers, including, without limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignments of priority\nrights, and powers of attorney, which the Company may deem necessary or desirable in order to protect its rights and interests in any Invention.\nThe Employee further agrees that if the Company is unable, after reasonable effort, to secure the signature of the Employee on any such papers,\nany executive officer of the Company shall be entitled to execute any such papers as the agent and the attorney-in-fact of the Employee, and the\nEmployee hereby irrevocably designates and appoints each executive officer of the Company as his/her agent and attorney-in-fact to execute any\nsuch papers on his/her behalf, and to take any and all actions as the Company may deem necessary or desirable in order to protect its rights and\ninterests in any Invention, under the conditions described in this sentence.\n2\n4.\nOther Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not\nbound by the terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or\nconfidential or proprietary information in the course of his/her employment with the Company, to refrain from competing, directly or indirectly,\nwith the business of such previous employer or any other party, or to refrain from soliciting employees, customers or suppliers of such previous\nemployer or other party. The Employee further represents that his/her performance of all the terms of this Agreement and the performance of\nhis/her duties as an employee of the Company do not and will not breach any agreement with any prior employer or other party to which the\nEmployee is a party (including without limitation any non-disclosure or non-competition agreement), and that the Employee will not disclose to\nthe Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or\nothers.\n5.\nUnited States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with other persons or with the United\nStates Government, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course\nof work under such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions that are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n6.\nNot An Employment Contract.\nThe Employee acknowledges that this Agreement does not constitute a contract of employment, either express or implied, and does not\nimply that the Company will continue the Employee’s employment for any period of time.\n7.\nGeneral Provisions.\n(a)\nNo Conflict. The Employee represents that the execution and performance by him/her of this Agreement does not and\nwill not conflict with or breach the terms of any other agreement by which the Employee is bound.\n(b)\nEntire Agreement. This Agreement supersedes all prior agreements, written or oral, between the Employee and the\nCompany relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in\npart, except by an agreement in writing signed by the Employee and the Company. The Employee agrees that any change or changes in\nhis/her duties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\n3\n(c)\nSeverability. The invalidity or unenforceability of any provision of this Agreement shall not affect or impair the\nvalidity or enforceability of any other provision of this Agreement.\n(d)\nWaiver. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of\nthat or any other right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be\nconstrued as a bar to or waiver of any right on any other occasion.\n(e)\nEmployee Acknowledgment and Equitable Remedies. The Employee acknowledges that the restrictions contained in\nthis Agreement are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be\nreasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the Company substantial and\nirrevocable damage and therefore, in the event of any breach or threatened breach of this Agreement, the Employee agrees that the\nCompany, in addition to such other remedies that may be available, shall be entitled to specific performance and other injunctive relief\nwithout posting a bond, and the Employee hereby waives the adequacy of a remedy at law as a defense to such relief.\n(f)\nSuccessors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their\nrespective successors and assigns, including any corporation or entity with which or into which the Company may be merged or which\nmay succeed to all or substantially all of its assets or business, provided however that the obligations of the Employee are personal and\nshall not be assigned by the Employee.\n(g)\nSubsidiaries and Affiliates. The Employee expressly consents to be bound by the provisions of this Agreement for the\nbenefit of the Company or any subsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity\nthat this Agreement be re-signed at the time of such transfer.\n(h)\nGoverning Law, Forum and Jurisdiction. This Agreement shall be governed by and construed as a sealed instrument\nunder and in accordance with the laws of the State of New York without regard to conflict of laws provisions. Any action, suit, or other\nlegal proceeding which is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be\ncommenced only in a court of the State of New York (or, if appropriate, a federal court located within New York), and the Company and\nthe Employee each consents to the jurisdiction of such a court.\n(i)\nCaptions. The captions of the sections of this Agreement are for convenience of reference only and in no way define,\nlimit or affect the scope or substance of any section of this Agreement.\n4\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS\nAND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nWITNESS our hands and seals:\nINTERCEPT PHARMACEUTICALS, INC.\n/s/ Mark Pruzanski\nMarch 21, 2008\nBy: Mark E. Pruzanski, MD\nDate\nPresident and Chief Executive Officer\nDavid Shapiro, MD\n/s/ David Shapiro\nMarch 31st 2008\nDate\n5\nExhibit A\nCALIFORNIA LABOR CODE SECTION 2870\n(a)\nAny provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her\nrights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time\nwithout using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1)\nRelate at the time of conception or reduction to practice of the invention to the employer's business, or actual or\ndemonstrably anticipated research or development of the employer, or\n(2)\nResult from any work performed by the employee for his employer.\n(b)\nTo the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise\nexcluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is\nunenforceable.\n6\nExhibit B\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP:\nTitle\nDate\nIdentifying Number or Brief Description\nX\nNo inventions or improvements\nAdditional Sheets Attached\nSignature of Employee:\n/s/ David Shapiro\nPrinted Name of Employee:\nDavid Shapiro\nDate: 31st March 2008\n7
+2572bba862c654e665039f634c132fea.pdf	effective_date jurisdiction party term	EX-99.(D)(4) 9 d110802dex99d4.htm EX-99.(D)(4)\nExhibit (d)(4)\nCONFIDENTIAL\nAMENDMENT NO. 1 TO\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Amendment No. 1 to Mutual Non-Disclosure Agreement (this “Amendment”), dated as of December 11, 2015 (the “Amendment\nDate”), is made between Anadigics, Inc. (“Anadigics”) and II-VI Incorporated (“Counterparty”) with reference to the following facts:\nA. Anadigics and Counterparty entered into a Mutual Non-Disclosure Agreement dated as of November 11, 2015 (the “Agreement”).\nB. The parties desire to provide for certain “clean room” procedures as set forth below.\nC. Any term defined in the Agreement and used in this Amendment shall have the meaning ascribed to it in the Agreement.\nNOW, THEREFORE, in respect of the foregoing premises and the covenants set forth herein, the parties hereto agree as follows:\n1. Clean Room Procedures. The parties hereby amend the Agreement to add the following procedures and protocols with respect to the\nreview and analysis by the representatives of Counterparty listed on Exhibit A (the “Clean Room Team”) of certain redacted contracts containing\nconfidential Evaluation Material (as determined by the following procedures and protocols, “Clean Room Information”). The parties agree to\nadhere to the following procedures and protocols in connection with the Clean Room Information:\n(a) A separate electronic, password-protected virtual clean room database on the diligence datasite (the “Clean Room”) will be\nadministered and made available by Anadigics or its designated representatives solely to the Clean Room Team. Any and all and only\nsuch Evaluation Material as is made available in or through the Clean Room and not otherwise made available by Anadigics to\nCounterparty or any of its representatives outside of the Clean Room shall be deemed to be Clean Room Information.\n(b) Anadigics or its designated representatives will determine, in their sole discretion, which Evaluation Material will be made\navailable for review and analysis by the Clean Room Team in the Clean Room.\n(c) Each member of the Clean Room Team will use Clean Room Information only to prepare written analyses or summaries to\nevaluate a Transaction, subject to the restrictions described herein.\n(d) The members of the Clean Room Team will be the only persons (i) permitted access to the Clean Room and (ii) subject to the\nterms of this Amendment, authorized to review Clean Room Information.\n(e) No disclosure, exchange or other communication, direct or indirect, of Clean Room Information, or any analyses, summaries,\nnotes, memos or other\ndocuments or information created from or with respect thereto, are permitted between the Clean Room Team, on one hand, and\nCounterparty or any of Counterparty’s other representatives, on the other hand, other than:\n(i) Written, videotaped, digitized or otherwise recorded analyses or summaries prepared by the Clean Room Team with respect to\nClean Room Information that (A) is general and summary in nature and (B) does not contain or disclose Restricted Information (as\ndefined in Exhibit B). Such written analyses and summaries shall be prepared in accordance with the guidelines set forth on Exhibit\nB.\n(ii) Oral communications between members of the Clean Room Team, on the one hand, and Counterparty and Counterparty’s\nRepresentatives that are not members of the Clean Room Team, on the other hand, of Clean Room Information (or any written,\nvideotaped, digitized or otherwise recorded analyses or summaries thereof prepared by members of the Clean Room Team) (A) shall\nbe general and summary in nature and (B) shall not contain or disclose Restricted Information. Such oral communications shall be\nsubject to the same guidelines set forth on Exhibit B applicable to the preparation of analyses or summaries as provided above.\nAny such analyses or summaries or any oral communications of Clean Room Information shall be deemed to be Evaluation Material\nunder the Agreement and Counterparty shall keep such information confidential in accordance with the terms of the Agreement.\n3. Full Force and Effect. The Agreement, as amended by this Amendment, remains in full force and effect.\n4. Counterparts. This Amendment may be executed in counterparts, all of which together shall constitute one and the same agreement.\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the Amendment Date.\nAnadigics, Inc.\nBy: /s/ Terry Gallagher\nIts: Executive Vice President and CFO\nII-VI Incorporated\nBy: /s/ Walter R. Bashaw\nIts: General Counsel and Secretary\nEXHIBIT A\nClean Team Members\nII-VI Incorporated:\nGiovanni Barbarossa, Chief Technology Officer\nWalter R. Bashaw II, Esquire, General Counsel\nMichelle R. McCreery Repp, Corporate Counsel and Director of Legal Affairs\nSusan J. Messer, Esquire – Sherrard, German & Kelly, P.C .\nD. Mark McMillan, Esquire – K&L Gates:\nSuch other as approved by email upon request by Kristina Brown, General Counsel\nEXHIBIT B\nNo Clean Team Member shall include any of the following information orally or in any written analysis or summary:\n• Technical or other specification information related to products and services supplied by Anadigics (excluding, for the avoidance of doubt, the\nterms of any exclusivity provisions);\n• Prices charged for any products or services; or\n• Quantities sold or planned to be sold.\nIn addition, no Clean Team Member shall include any information that Anadigics specifically requests in writing not to be included in any oral\ndisclosure, written analysis or summary (any such Evaluation Material, collectively known as “Restricted Information”).	EX-99.(D)(4) 9 d110802dex99d4.htm EX-99.(D)(4)\nExhibit (d)(4)\nCONFIDENTIAL\nAMENDMENT NO.1TO\nMUTUAL NON-DISCL.OSURE AGREEMENT\nThis Amendment No. 1 to Mutual Non-Disclosure Agreement (this “Amendment”), dated as of December 11, 2015 (the “Amendment\nDate”), is made between Anadigics, Inc. (“Anadigics”) and II-VI Incorporated (“Counterparty”) with reference to the following facts:\n \nA. Anadigics and Counterparty entered into a Mutual Non-Disclosure Agreement dated as of November 11, 2015 (the “Agreement”).\n \nB.  The parties desire to provide for certain “clean room” procedures as set forth below.\nC. Any term defined in the Agreement and used in this Amendment shall have the meaning ascribed to it in the Agreement.\nNOW, THEREFORE, in respect of the foregoing premises and the covenants set forth herein, the parties hereto agree as follows:\n1. Clean Room Procedures. The parties hereby amend the Agreement to add the following procedures and protocols with respect to the\nreview and analysis by the representatives of Counterparty listed on Exhibit A (the “Clean Room Team”) of certain redacted contracts containing\nconfidential Evaluation Material (as determined by the following procedures and protocols, “Clean Room Information”). The parties agree to\nadhere to the following procedures and protocols in connection with the Clean Room Information:\n(a) A separate electronic, password-protected virtual clean room database on the diligence datasite (the “Clean Room”) will be\nadministered and made available by Anadigics or its designated representatives solely to the Clean Room Team. Any and all and only\nsuch Evaluation Material as is made available in or through the Clean Room and not otherwise made available by Anadigics to\nCounterparty or any of its representatives outside of the Clean Room shall be deemed to be Clean Room Information.\n(b) Anadigics or its designated representatives will determine, in their sole discretion, which Evaluation Material will be made\navailable for review and analysis by the Clean Room Team in the Clean Room.\n(c) Each member of the Clean Room Team will use Clean Room Information only to prepare written analyses or summaries to\nevaluate a Transaction, subject to the restrictions described herein.\n(d) The members of the Clean Room Team will be the only persons (i) permitted access to the Clean Room and (ii) subject to the\nterms of this Amendment, authorized to review Clean Room Information.\n(e) No disclosure, exchange or other communication, direct or indirect, of Clean Room Information, or any analyses, summaries,\nnotes, memos or other\ndocuments or information created from or with respect thereto, are permitted between the Clean Room Team, on one hand, and\nCounterparty or any of Counterparty’s other representatives, on the other hand, other than:\n(i) Written, videotaped, digitized or otherwise recorded analyses or summaries prepared by the Clean Room Team with respect to\nClean Room Information that (A) is general and summary in nature and (B) does not contain or disclose Restricted Information (as\ndefined in Exhibit B). Such written analyses and summaries shall be prepared in accordance with the guidelines set forth on Exhibit\nB.\n(ii) Oral communications between members of the Clean Room Team, on the one hand, and Counterparty and Counterparty’s\nRepresentatives that are not members of the Clean Room Team, on the other hand, of Clean Room Information (or any written,\nvideotaped, digitized or otherwise recorded analyses or summaries thereof prepared by members of the Clean Room Team) (A) shall\nbe general and summary in nature and (B) shall not contain or disclose Restricted Information. Such oral communications shall be\nsubject to the same guidelines set forth on Exhibit B applicable to the preparation of analyses or summaries as provided above.\nAny such analyses or summaries or any oral communications of Clean Room Information shall be deemed to be Evaluation Material\nunder the Agreement and Counterparty shall keep such information confidential in accordance with the terms of the Agreement.\n3. Full Force and Effect. The Agreement, as amended by this Amendment, remains in full force and effect.\n4. Counterparts. This Amendment may be executed in counterparts, all of which together shall constitute one and the same agreement.\nIN WITNESS WHEREOQF, the parties hereto have executed and delivered this Amendment as of the Amendment Date.\nAnadigics, Inc.\nBy: /s/ Terry Gallagher\nIts: Executive Vice President and CFO\nII-VI Incorporated\nBy: /s/ Walter R. Bashaw\nIts: General Counsel and Secretary\nEXHIBIT A\nClean Team Members\nII-VI Incorporated:\nGiovanni Barbarossa, Chief Technology Officer\nWalter R. Bashaw II, Esquire, General Counsel\nMichelle R. McCreery Repp, Corporate Counsel and Director of Legal Affairs\nSusan J. Messer, Esquire — Sherrard, German & Kelly, P.C.\nD. Mark McMillan, Esquire — K&L Gates:\nSuch other as approved by email upon request by Kristina Brown, General Counsel\nEXHIBIT B\nNo Clean Team Member shall include any of the following information orally or in any written analysis or summary:\n+ Technical or other specification information related to products and services supplied by Anadigics (excluding, for the avoidance of doubt, the\nterms of any exclusivity provisions);\n* Prices charged for any products or services; or\n* Quantities sold or planned to be sold.\nIn addition, no Clean Team Member shall include any information that Anadigics specifically requests in writing not to be included in any oral\ndisclosure, written analysis or summary (any such Evaluation Material, collectively known as “Restricted Information™).	EX-99.(D)(4) 9 d110802dex99d4.htm EX-99.(D)(4)\nExhibit (d)(4)\nCONFIDENTIAL\nAMENDMENT NO. 1 TO\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Amendment No. 1 to Mutual Non-Disclosure Agreement (this "Amendment"), dated as of December 11, 2015 (the "Amendment\nDate"), is made between Anadigics, Inc. ("Anadigics") and II-VI Incorporated ("Counterparty.") with reference to the following facts:\nA. Anadigics and Counterparty entered into a Mutual Non-Disclosure Agreement dated as of November 11, 2015 (the "Agreement").\nB.\nThe parties desire to provide for certain "clean room" procedures as set forth below.\nC. Any term defined in the Agreement and used in this Amendment shall have the meaning ascribed to it in the Agreement.\nNOW, THEREFORE, in respect of the foregoing premises and the covenants set forth herein, the parties hereto agree as follows:\n1. Clean Room Procedures. The parties hereby amend the Agreement to add the following procedures and protocols with respect to the\nreview and analysis by the representatives of Counterparty listed on Exhibit A (the "Clean Room Team") of certain redacted contracts containing\nconfidential Evaluation Material (as determined by the following procedures and protocols, "Clean Room Information"). The parties agree to\nadhere to the following procedures and protocols in connection with the Clean Room Information:\n(a) A separate electronic, password-protected virtual clean room database on the diligence datasite (the "Clean Room") will be\nadministered and made available by Anadigics or its designated representatives solely to the Clean Room Team. Any and all and only\nsuch Evaluation Material as is made available in or through the Clean Room and not otherwise made available by Anadigics to\nCounterparty or any of its representatives outside of the Clean Room shall be deemed to be Clean Room Information.\n(b)\nAnadigics or its designated representatives will determine, in their sole discretion, which Evaluation Material will be made\navailable for review and analysis by the Clean Room Team in the Clean Room.\n(c) Each member of the Clean Room Team will use Clean Room Information only to prepare written analyses or summaries to\nevaluate a Transaction, subject to the restrictions described herein.\n(d) The members of the Clean Room Team will be the only persons (i) permitted access to the Clean Room and (ii) subject to the\nterms of this Amendment, authorized to review Clean Room Information.\n(e)\nNo disclosure, exchange or other communication, direct or indirect, of Clean Room Information, or any analyses, summaries,\nnotes, memos or other\ndocuments or information created from or with respect thereto, are permitted between the Clean Room Team, on one hand, and\nCounterparty or any of Counterparty's other representatives, on the other hand, other than:\n(i) Written, videotaped, digitized or otherwise recorded analyses or summaries prepared by the Clean Room Team with respect to\nClean Room Information that (A) is general and summary in nature and (B) does not contain or disclose Restricted Information (as\ndefined in Exhibit B). Such written analyses and summaries shall be prepared in accordance with the guidelines set forth on Exhibit\nB.\n(ii) Oral communications between members of the Clean Room Team, on the one hand, and Counterparty and Counterparty's\nRepresentatives that are not members of the Clean Room Team, on the other hand, of Clean Room Information (or any written,\nvideotaped, digitized or otherwise recorded analyses or summaries thereof prepared by members of the Clean Room Team) (A) shall\nbe general and summary in nature and (B) shall not contain or disclose Restricted Information. Such oral communications shall be\nsubject to the same guidelines set forth on Exhibit B applicable to the preparation of analyses or summaries as provided above.\nAny such analyses or summaries or any oral communications of Clean Room Information shall be deemed to be Evaluation Material\nunder the Agreement and Counterparty shall keep such information confidential in accordance with the terms of the Agreement.\n3. Full Force and Effect. The Agreement, as amended by this Amendment, remains in full force and effect.\n4.\nCounterparts. This Amendment may be executed in counterparts, all of which together shall constitute one and the same agreement.\nIN\nWITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the Amendment Date.\nAnadigics, Inc.\nBy: /s/ Terry Gallagher\nIts: Executive Vice President and CFO\nII-VI Incorporated\nBy: /s/ Walter R. Bashaw\nIts: General Counsel and Secretary\nEXHIBIT A\nClean Team Members\nII-VI Incorporated:\nGiovanni Barbarossa, Chief Technology Officer\nWalter R. Bashaw II, Esquire, General Counsel\nMichelle R. McCreery Repp, Corporate Counsel and Director of Legal Affairs\nSusan J. Messer, Esquire - Sherrard, German & Kelly, P.C.\nD. Mark McMillan, Esquire - K&L Gates:\nSuch other as approved by email upon request by Kristina Brown, General Counsel\nEXHIBIT B\nNo Clean Team Member shall include any of the following information orally or in any written analysis or summary:\nTechnical or other specification information related to products and services supplied by Anadigics (excluding, for the avoidance of doubt, the\nterms of any exclusivity provisions);\nPrices charged for any products or services; or\nQuantities sold or planned to be sold.\nIn addition, no Clean Team Member shall include any information that Anadigics specifically requests in writing not to be included in any oral\ndisclosure, written analysis or summary (any such Evaluation Material, collectively known as "Restricted Information").	EX-99.(D)(4) 9 d110802dex99d4.htm EX-99.(D)(4)\nExhibit (d)(4)\nCONFIDENTIAL\nAMENDMENT NO. 1 TO\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Amendment No. 1 to Mutual Non-Disclosure Agreement (this “Amendment”), dated as of December 11, 2015 (the “Amendment\nDate”), is made between Anadigics, Inc. (“Anadigics”) and II-VI Incorporated (“Counterparty”) with reference to the following facts:\nA. Anadigics and Counterparty entered into a Mutual Non-Disclosure Agreement dated as of November 11, 2015 (the “Agreement”).\nB. The parties desire to provide for certain “clean room” procedures as set forth below.\nC. Any term defined in the Agreement and used in this Amendment shall have the meaning ascribed to it in the Agreement.\nNOW, THEREFORE, in respect of the foregoing premises and the covenants set forth herein, the parties hereto agree as follows:\n1. Clean Room Procedures. The parties hereby amend the Agreement to add the following procedures and protocols with respect to the\nreview and analysis by the representatives of Counterparty listed on Exhibit A (the “Clean Room Team”) of certain redacted contracts containing\nconfidential Evaluation Material (as determined by the following procedures and protocols, “Clean Room Information”). The parties agree to\nadhere to the following procedures and protocols in connection with the Clean Room Information:\n(a) A separate electronic, password-protected virtual clean room database on the diligence datasite (the “Clean Room”) will be\nadministered and made available by Anadigics or its designated representatives solely to the Clean Room Team. Any and all and only\nsuch Evaluation Material as is made available in or through the Clean Room and not otherwise made available by Anadigics to\nCounterparty or any of its representatives outside of the Clean Room shall be deemed to be Clean Room Information.\n(b) Anadigics or its designated representatives will determine, in their sole discretion, which Evaluation Material will be made\navailable for review and analysis by the Clean Room Team in the Clean Room.\n(c) Each member of the Clean Room Team will use Clean Room Information only to prepare written analyses or summaries to\nevaluate a Transaction, subject to the restrictions described herein.\n(d) The members of the Clean Room Team will be the only persons (i) permitted access to the Clean Room and (ii) subject to the\nterms of this Amendment, authorized to review Clean Room Information.\n(e) No disclosure, exchange or other communication, direct or indirect, of Clean Room Information, or any analyses, summaries,\nnotes, memos or other\ndocuments or information created from or with respect thereto, are permitted between the Clean Room Team, on one hand, and\nCounterparty or any of Counterparty’s other representatives, on the other hand, other than:\n(i) Written, videotaped, digitized or otherwise recorded analyses or summaries prepared by the Clean Room Team with respect to\nClean Room Information that (A) is general and summary in nature and (B) does not contain or disclose Restricted Information (as\ndefined in Exhibit B). Such written analyses and summaries shall be prepared in accordance with the guidelines set forth on Exhibit\nB.\n(ii) Oral communications between members of the Clean Room Team, on the one hand, and Counterparty and Counterparty’s\nRepresentatives that are not members of the Clean Room Team, on the other hand, of Clean Room Information (or any written,\nvideotaped, digitized or otherwise recorded analyses or summaries thereof prepared by members of the Clean Room Team) (A) shall\nbe general and summary in nature and (B) shall not contain or disclose Restricted Information. Such oral communications shall be\nsubject to the same guidelines set forth on Exhibit B applicable to the preparation of analyses or summaries as provided above.\nAny such analyses or summaries or any oral communications of Clean Room Information shall be deemed to be Evaluation Material\nunder the Agreement and Counterparty shall keep such information confidential in accordance with the terms of the Agreement.\n3. Full Force and Effect. The Agreement, as amended by this Amendment, remains in full force and effect.\n4. Counterparts. This Amendment may be executed in counterparts, all of which together shall constitute one and the same agreement.\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the Amendment Date.\nAnadigics, Inc.\nBy: /s/ Terry Gallagher\nIts: Executive Vice President and CFO\nII-VI Incorporated\nBy: /s/ Walter R. Bashaw\nIts: General Counsel and Secretary\nEXHIBIT A\nClean Team Members\nII-VI Incorporated:\nGiovanni Barbarossa, Chief Technology Officer\nWalter R. Bashaw II, Esquire, General Counsel\nMichelle R. McCreery Repp, Corporate Counsel and Director of Legal Affairs\nSusan J. Messer, Esquire – Sherrard, German & Kelly, P.C .\nD. Mark McMillan, Esquire – K&L Gates:\nSuch other as approved by email upon request by Kristina Brown, General Counsel\nEXHIBIT B\nNo Clean Team Member shall include any of the following information orally or in any written analysis or summary:\n• Technical or other specification information related to products and services supplied by Anadigics (excluding, for the avoidance of doubt, the\nterms of any exclusivity provisions);\n• Prices charged for any products or services; or\n• Quantities sold or planned to be sold.\nIn addition, no Clean Team Member shall include any information that Anadigics specifically requests in writing not to be included in any oral\ndisclosure, written analysis or summary (any such Evaluation Material, collectively known as “Restricted Information”).
+2580d4ca2d7ae09df407f96f04551eb1.pdf	effective_date jurisdiction party term	PJM Interconnection, L.L.C.\nSubstitute First Revised Sheet No. 197\nThird Revised Rate Schedule FERC No. 24\nSuperseding First Revised Sheet No. 197\nSCHEDULE 10 -\nFORM OF NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (the “Agreement”) is made this\nday of\n, 2004, by and between\n,an\nAuthorized Person, as defined below, of\n(the “State Commission”) having jurisdiction within the State of\n, with offices at\nand PJM Interconnection, L.L .C., a Delaware limited liability company, with offices at 955 Jefferson Avenue, Valley Forge Corporate\nCenter, Norristown, PA 10403 (“PJM”). The State Commission and PJM shall be referred to herein individually as a “Party,” or collectively as the\n“Parties.”\nRECITALS\nWhereas , PJM serves as the Regional Transmission Organization with reliability and/or functional control responsibilities over transmission\nsystems involving fourteen states including the District of Columbia, and operates and oversees wholesale markets for electricity pursuant to the\nrequirements of the PJM Tariff and the Operating Agreement, as defined below; and\nWhereas, the PJM Market Monitor serves as the monitor for PJM’s wholesale markets for electricity, and\nWhereas , the Operating Agreement requires that PJM and the PJM Market Monitor maintain the confidentiality of Confidential Information;\nand\nWhereas , the Operating Agreement requires PJM and the PJM Market Monitor to disclose Confidential Information to Authorized Persons\nupon satisfaction of conditions stated in the Operating Agreement, including, but not limited to, the execution of this Agreement by the Authorized\nPerson and the maintenance of the confidentiality of such information pursuant to the terms of this Agreement; and\nWhereas , PJM desires to provide Authorized Persons with the broadest possible access to Confidential Information, consistent with PJM’s\nand the PJM Market Monitor’s obligations and duties under the PJM Operating Agreement, the PJM Tariff and other applicable FERC directives;\nand\nWhereas , this Agreement is a statement of the conditions and requirements, consistent with the requirements of the Operating Agreement,\nwhereby PJM or the PJM Market Monitor may provide Confidential Information to the Authorized Person.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197A\nThird Revised Rate Schedule FERC No. 24\nNOW, THERFORE, intending to be legally bound, the Parties hereby agree as follows:\n1. DEFINITIONS.\n1.1 Affected Member. A Member of PJM which as a result of its participation in PJM’s markets or its membership in PJM provided\nConfidential Information to PJM, which Confidential Information is requested by, or is disclosed to an Authorized Person under this\nAgreement.\n1.2 Authorized Commission. (i) A State (which shall include the District of Columbia) public utility commission within the geographic\nlimits of the PJM Region (as that term in defined in the Operating Agreement) that regulates the distribution or supply of electricity to\nretail customers and is legally charged with monitoring the operation of wholesale or retail markets serving retail suppliers or customers\nwithin its State or (ii) an association or organization comprised exclusively of State public utility commissions described in the\nimmediately preceding clause (i).\n1.3 Authorized Person. A person, including the undersigned, which has executed this Agreement and is authorized in writing by an\nAuthorized Commission to receive and discuss Confidential Information. Authorized Persons may include attorneys representing an\nAuthorized Commission, consultants and/or contractors directly employed or retained by an Authorized Commission, provided however\nthat consultants or contractors may not initiate requests for Confidential Information from PJM or the PJM Market Monitor\n1.4 Confidential Information. Any information that would be considered non-public or confidential under the Operating Agreement.\n1.5 FERC. The Federal Energy Regulatory Commission.\n1.6 Information Request. A written request, in accordance with the terms of this Agreement for disclosure of Confidential Information\npursuant to Section 18.17 .4 of the Operating Agreement.\n1.7 Operating Agreement. The Amended and Restated Operating Agreement of PJM Interconnection, L.L .C., as it may be further amended\nor restated from time to time.\n1.8 PJM Market Monitor. The Market Monitoring Unit established under Attachment M to the PJM Tariff.\n1.9 PJM Tariff. The PJM Open Access Transmission Tariff, as it may be amended from time to time.\n1.10 Third Party Request. Any request or demand by any entity upon an Authorized Person or an Authorized Commission for release or\ndisclosure of Confidential Information. A Third Party Request shall include, but shall not be limited to, any subpoena, discovery request,\nor other request for Confidential Information made by any: (i) federal, state, or local governmental subdivision, department, official,\nagency or court, or (ii) arbitration panel, business, company, entity or individual.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197B\nThird Revised Rate Schedule FERC No. 24\n2. Protection of Confidentiality.\n2.1 Duty to Not Disclose. The Authorized Person represents and warrants that he or she: (i) is presently an Authorized Person as defined\nherein; (ii) is duly authorized to enter into and perform this Agreement; (iii) has adequate procedures to protect against the release of\nConfidential Information, and (iv) is familiar with, and will comply with, all such applicable State Commission procedures. The\nAuthorized Person hereby covenants and agrees on behalf of himself or herself to deny any Third Party Request and defend against any\nlegal process which seeks the release of Confidential Information in contravention of the terms of this Agreement.\n2.2 Conditions Precedent. As a condition of the execution, delivery and effectiveness of this Agreement by PJM and the continued\nprovision of Confidential Information pursuant to the terms of this Agreement, the Authorized Commission shall, prior to the initial oral\nor written request for Confidential Information by an Authorized Person on its behalf, provide PJM with: (a) a final order of FERC\nprohibiting the release by the Authorized Person or the State Commission of Confidential Information in accordance with the terms of\nthe Operating Agreement and this Agreement; and (b) either an order of the State Commission or a certification from counsel to the State\nCommission, confirming that the State Commission has statutory authority to protect the confidentiality of the Confidential Information\nfrom public release or disclosure and from release or disclosure to any other entity, and that it has adequate procedures to protect against\nthe release of Confidential Information; and (c) confirmation in writing that the Authorized Person is authorized by the State\nCommission to enter into this Agreement and to receive Confidential Information under the Operating Agreement. PJM and the PJM\nMarket Monitor shall be expressly entitled to rely upon such FERC and State Commission orders and/or certifications of counsel in\nproviding Confidential Information to the Authorized Person, and shall in no event be liable, or subject to damages or claims of any kind\nor nature hereunder or pursuant to the Operating Agreement, due to the ineffectiveness of the FERC and/or State Commission orders, or\nthe inaccuracy of such certification of counsel.\n2.3 Discussion of Confidential Information with other Authorized Persons . The Authorized Person may discuss Confidential\nInformation with other Authorized Persons who have executed non-disclosure agreements with PJM containing the same terms and\nconditions as this Agreement; provided, however, that PJM shall have confirmed in advance and in writing that PJM has previously\nreleased the Confidential Information in question to such Authorized Persons. PJM shall respond to any written request for confirmation\nwithin two (2) business days of its receipt.\nPJM Interconnection, L.L.C.\nSubstitute Original Sheet No. 197C\nThird Revised Rate Schedule FERC No. 24\nSuperseding Original Sheet No. 197C\n2.4 Defense Against Third Party Requests. The Authorized Person shall defend against any disclosure of Confidential Information\npursuant to any Third Party Request through all available legal process, including, but not limited to, obtaining any necessary protective\norders. The Authorized Person shall provide PJM, and PJM shall provide each Affected Member, with prompt notice of any such Third\nParty Request or legal proceedings, and shall consult with PJM and/or any Affected Member in its efforts to deny the request or defend\nagainst such legal process. In the event a protective order or other remedy is denied, the Authorized Person agrees to furnish only that\nportion of the Confidential Information which their legal counsel advises PJM (and of which PJM shall, in turn, advise any Affected\nMembers) in writing is legally required to be furnished, and to exercise their best efforts to obtain assurance that confidential treatment\nwill be accorded to such Confidential Information.\n2.5 Care and Use of Confidential Information.\n2.5.1 Control of Confidential Information. The Authorized Person(s) shall be the custodian(s) of any and all Confidential\nInformation received pursuant to the terms of this Agreement from PJM or the PJM Market Monitor.\n2.5.2 Access to Confidential Information. The Authorized Person shall ensure that Confidential Information received by that\nAuthorized Person is disseminated only to those persons publicly identified as Authorized Persons on Exhibit “A” to the\ncertification provided by the State Commission to PJM pursuant to the procedures contained in section 2.3 of this Agreement.\n2.5.3 Schedule of Authorized Persons.\n(i) The Authorized Person shall promptly notify PJM of any change that would affect the Authorized Person’s status as an\nAuthorized Person, and in such event shall request, in writing, deletion from the schedule referred to in section (ii), below.\n(ii) PJM shall maintain a schedule of all Authorized Persons and the Authorized Commissions they represent, which shall be\nmade publicly available on the PJM website and/or by written request. Such schedule shall be compiled by PJM, based on\ninformation provided by any Authorized Person and/or Authorized Commission. PJM shall update the schedule promptly\nupon receipt of information from an Authorized Person or Authorized Commission, but shall have no obligation to verify\nor corroborate any such information, and shall not be liable or otherwise responsible for any inaccuracies in the schedule\ndue to incomplete or erroneous information conveyed to and relied upon by PJM in the compilation and/or maintenance of\nthe schedule.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197D\nThird Revised Rate Schedule FERC No. 24\n2.5.4 Use of Confidential Information. The Authorized Person shall use the Confidential Information solely for the purpose of\nassisting the State Commission in discharging its legal responsibility to monitor the wholesale and retail electricity markets,\noperations, transmission planning and siting and generation planning and siting materially affecting retail customers within the\nState, and for no other purpose.\n2.5.5 Return of Confidential Information. Upon completion of the inquiry or investigation referred to in the Information Request, or\nfor any reason the Authorized Person is, or will no longer be an Authorized Person, the Authorized Person shall (a) return the\nConfidential Information and all copies thereof to PJM, or (b) provide a certification that the Authorized Person has destroyed all\npaper copies and deleted all electronic copies of the Confidential Information. PJM may waive this condition in writing if such\nConfidential Information has become publicly available or non-confidential in the course of business or pursuant to the PJM\nTariff, PJM rule or order of the FERC.\n2.5.6 Notice of Disclosures. The Authorized Person, directly or through the Authorized Commission, shall promptly notify PJM, and\nPJM shall promptly notify any Affected Member, of any inadvertent or intentional release or possible release of the Confidential\nInformation provided pursuant to this Agreement. The Authorized Person shall take all steps to minimize any further release of\nConfidential Information, and shall take reasonable steps to attempt to retrieve any Confidential Information that may have been\nreleased.\n2.6 Ownership and Privilege. Nothing in this Agreement, or incident to the provision of Confidential Information to the Authorized Person\npursuant to any Information Request, is intended, nor shall it be deemed, to be a waiver or abandonment of any legal privilege that may\nbe asserted against subsequent disclosure or discovery in any formal proceeding or investigation. Moreover, no transfer or creation of\nownership rights in any intellectual property comprising Confidential Information is intended or shall be inferred by the disclosure of\nConfidential Information by PJM, and any and all intellectual property comprising Confidential Information disclosed and any\nderivations thereof shall continue to be the exclusive intellectual property of PJM and/or the Affected Member.\nPJM Interconnection, L.L.C.\nSubstitute Original Sheet No. 197E\nThird Revised Rate Schedule FERC No. 24\nSuperseding Original Sheet No. 197E\n3. Procedure for Information Requests\n3.1 Written Requests. Information Requests to PJM shall be in writing, which shall include electronic communications, addressed to the\nPJM Market Monitor or other PJM representatives as specified by PJM, with a concurrent copy to PJM’s General Counsel, and shall: (a)\ndescribe with particularity the information sought; (b) provide a description of the purpose of the Information Request; (c) state the time\nperiod for which information is requested; and (d) re-affirm that only the Authorized Person shall have access to the Confidential\nInformation requested. PJM shall provide an Affected Member with written notice, which shall include electronic communication, of an\nInformation Request of the Authorized Person as soon as possible, but not later than two (2) business days after the receipt of the\nInformation Request.\n3.2 Oral Disclosures by the PJM Market Monitor. The PJM Market Monitor or other PJM representatives as specified by PJM may, in the\ncourse of discussions with an Authorized Person, orally disclose information otherwise required to be maintained in confidence, without\nthe need for a prior Information Request. Such oral disclosures shall provide enough information to enable the Authorized Person or the\nState Commission to determine whether additional Information Requests for information are appropriate. The PJM Market Monitor or\nother PJM representative will not make any written or electronic disclosures of Confidential Information to the Authorized Person\npursuant to this section. In any such discussions, the PJM Market Monitor or other PJM representative shall ensure that the individual or\nindividuals receiving such Confidential Information are Authorized Persons under this Agreement, orally designate Confidential\nInformation that is disclosed, and refrain from identifying any specific Affected Member whose information is disclosed. The PJM\nMarket Monitor or other PJM representative shall also be authorized to assist Authorized Persons in interpreting Confidential\nInformation that is disclosed. PJM or the PJM Market Monitor shall (i) maintain a written record of oral disclosures pursuant to this\nsection, which shall include the date of each oral disclosure and the Confidential. Information disclosed in each such oral disclosure, and\n(ii) provide any Affected Member with oral notice of any oral disclosure immediately, but not later than one (1) business day after the\noral disclosure. Such oral notice to the Affected Member shall include the substance of the oral disclosure, but shall not reveal any\nConfidential Information of any other Member and must be received by the Affected Member before the name of the Affected Member\nis released to the Authorized Person; provided however, the identity of the Affected Party must be made available to the Authorized\nPerson within two (2) business days of the initial oral disclosure.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197F\nThird Revised Rate Schedule FERC No. 24\n3.3 Response to Information Requests.\n3.3.1 Subject to the provisions of Section 3.3.2 below, PJM shall supply Confidential Information to the Authorized Person in response\nto any Information Request within five (5) business days of the receipt of the Information Request, to the extent that the requested\nConfidential Information can be made available within such period; provided however, that in no event shall Confidential\nInformation be released prior to the end of the fourth (4th) business day without the express consent of the Affected Member. To\nthe extent that PJM can not reasonably prepare and deliver the requested Confidential Information within such five (5) day\nperiod, PJM shall, within such period, provide the Authorized Person with a written schedule for the provision of such remaining\nConfidential Information. Upon providing Confidential Information to the Authorized Person, PJM shall either provide a copy of\nthe Confidential Information to the Affected Member(s), or provide a listing of the Confidential Information disclosed; provided,\nhowever, that PJM shall not reveal any Member’s Confidential Information to any other Member.\n3.3.2 Notwithstanding section 3.3.1, above, should PJM or an Affected Member object to an Information Request or any portion\nthereof, PJM or the Affected Member may, within four (4) business days following PJM’s receipt of the Information Request,\nrequest, in writing (which shall include electronic communication) addressed to the State Commission with a copy to either the\nAffected Party or PJM, as the case may be, a conference with the State Commission or the State Commission’s authorized\ndesignee to resolve differences concerning the scope or timing of the Information Request; provided, however, nothing herein\nshall require the State Commission to participate in any conference. Any party to the conference may seek assistance from FERC\nstaff in resolution of the dispute. Should such conference be refused by any participant, or not resolve the dispute, then PJM, the\nAffected Member or the State Commission may initiate appropriate legal action at FERC within three (3) business days following\nreceipt of written notice from any conference participant terminating such conference. Any complaints filed at FERC objecting to\na particular Information Request shall be designated by the party as a “fast track” complaint and each party shall bear its own\ncosts in connection with such FERC proceeding. If no FERC proceeding regarding the Information Request is commenced by\nPJM, the Affected Member or the State Commission within such three day period, PJM shall utilize its best efforts to respond to\nthe Information Request promptly.\n3.3.3 To the extent that a response to any Information Request requires disclosure of Confidential Information of two or more Affected\nParties, PJM shall, to the extent possible, segregate such information and respond to the Information Request separately for each\nAffected Member.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197G\nThird Revised Rate Schedule FERC No. 24\n4. Remedies.\n4.1 Material Breach. The Authorized Person agrees that release of Confidential Information to persons not authorized to receive it\nconstitutes a breach of this Agreement and may cause irreparable harm to PJM and/or the Affected Member. In the event of a breach of\nthis Agreement by the Authorized Person, PJM shall terminate this Agreement upon written notice to the Authorized Person and his or\nher Authorized Commission, and all rights of the Authorized Person hereunder shall thereupon terminate; provided, however, that PJM\nmay restore an individual’s status as an Authorized Person after consulting with the Affected Member and to the extent that: (i) PJM\ndetermines that the disclosure was not due to the intentional, reckless or negligent action or omission of the Authorized Person; (ii) there\nwere no harm or damages suffered by the Affected Member; or (iii) similar good cause shown. Any appeal of PJM’s actions under this\nsection shall be to FERC.\n4.2 Judicial Recourse. In the event of any breach of this Agreement, PJM and/or the Affected Member shall have the right to seek and\nobtain at least the following types of relief: (a) an order from FERC requiring any breach to cease and preventing any future breaches;\n(b) temporary, preliminary, and/or permanent injunctive relief with respect to any breach; and (c) the immediate return of all Confidential\nInformation to PJM. The Authorized Person expressly agrees that in the event of a breach of this Agreement, any relief sought properly\nincludes, but shall not be limited to, the immediate return of all Confidential Information to PJM.\n4.3 Waiver of Monetary Damages. No Authorized Person shall have responsibility or liability whatsoever under this Agreement for any\nand all liabilities, losses, damages, demands, fines, monetary judgments, penalties, costs and expenses caused by, resulting from, or\narising out of, or in connection with, the release of Confidential Information to persons not authorized to receive it, provided that such\nAuthorized Person is an employee or member of an Authorized Commission at the time of such unauthorized release. Nothing in this\nSection 4.3 is intended to limit the liability of any person who is not an employee of or a member of an Authorized Commission at the\ntime of such unauthorized release for any and all economic losses, damages, demands, fines, monetary judgments, penalties, costs and\nexpenses caused by, resulting from, or arising out of or in connection with such unauthorized release.\n5. Jurisdiction. The Parties agree that (i) any dispute or conflict requesting the relief in sections 4.1, and 4.2(a) above shall be submitted to\nFERC for hearing and resolution; (ii) any dispute or conflict requesting the relief in section 4.2(c) above may be submitted to FERC or any\ncourt of competent jurisdiction for hearing and resolution; and (iii) jurisdiction over all other actions and requested relief shall lie in any court\nof competent jurisdiction.\nPJM Interconnection, L.L.C.\nSubstitute Original Sheet No. 197H\nThird Revised Rate Schedule FERC No. 24\nSuperseding Original Sheet No. 197H\n6. Notices. All notices required pursuant to the terms of this Agreement shall be in writing, and served upon the following individuals in person,\nor at the following addresses or email addresses:\nIf to the Authorized Person:\n_ ___ ___ ___ ___ ___ ____ ___\n_ ___ ___ ___ ___ ___ ____ ___\n_ ___ ___ ___ ___ ___ ____ ___\n_ ___ ___ ___ ___ ___ ____ ___\n(email address)\nwith a copy to\n_ ___ ___ ___ ___ ___ ____ ___\n_ ___ ___ ___ ___ ___ ____ ___\n_ ___ ___ ___ ___ ___ ____ ___\n_ ___ ___ ___ ___ ___ ____ ___\n(email address)\nIf to PJM:\nMarket Monitor\nPJM Interconnection, LLC\n955 Jefferson Avenue\nValley Forge Corporate Center\nNorristown, PA 19403\nbowrij@pjm.com\nwith a copy to\nGeneral Counsel\n955 Jefferson Avenue\nValley Forge Corporate Center\nNorristown, PA 19403\nhagelj@pjm.com\nPJM Interconnection, L.L.C.\nSubstitute Original Sheet No. 197I\nThird Revised Rate Schedule FERC No. 24\nSuperseding Original Sheet No. 197I\n7. Severability and Survival. In the event any provision of this Agreement is determined to be unenforceable as a matter of law, the Parties\nintend that all other provisions of this Agreement remain in full force and effect in accordance with their terms. In the event of conflicts\nbetween the terms of this Agreement and the Operating Agreement, the terms of the Operating Agreement shall in all events be controlling.\nThe Authorized Person acknowledges that any and all obligations of the Authorized Person hereunder shall survive the severance or\ntermination of any employment or retention relationship between the Authorized Person and their respective Authorized Commission.\n8. Representations. The undersigned represent and warrant that they are vested with all necessary corporate, statutory and/or regulatory\nauthority to execute and deliver this Agreement, and to perform all of the obligations and duties contained herein.\n9. Third Party Beneficiaries. The Parties specifically agree and acknowledge that each Member as defined in the Operating Agreement is an\nintended third party beneficiary of this Agreement entitled to enforce its provisions.\n10. Counterparts. This Agreement may be executed in counterparts and all such counterparts together shall be deemed to constitute a single\nexecuted original.\n11. Amendment. This Agreement may not be amended except by written agreement executed by authorized representatives of the Parties.\nPJM INTERCONNECTION, L.L .C.\nAUTHORIZED PERSON\nBy:\nBy:\nName:\nName:\nTitle:\nTitle:	PJM Interconnection, L.L.C. Substitute First Revised Sheet No. 197\nThird Revised Rate Schedule FERC No. 24 Superseding First Revised Sheet No. 197\nSCHEDULE 10 -\nFORM OF NON-DISCLOSURE AGREEMENT\n \n \nTHIS NON-DISCLOSURE AGREEMENT (the “Agreement”) is made this_____ day of 2004, by and between an\nAuthorized Person, as defined below, of (the “State Commission”) having jurisdiction within the State of with offices at\nand PJM Interconnection, L.L.C., a Delaware limited liability company, with offices at 955 Jefferson Avenue, Valley Forge Corporate\nCenter, Norristown, PA 10403 (“PJM”). The State Commission and PJM shall be referred to herein individually as a “Party,” or collectively as the\n“Parties.”\n \nRECITALS\nWhereas , PJM serves as the Regional Transmission Organization with reliability and/or functional control responsibilities over transmission\nsystems involving fourteen states including the District of Columbia, and operates and oversees wholesale markets for electricity pursuant to the\nrequirements of the PJM Tariff and the Operating Agreement, as defined below; and\nWhereas, the PJM Market Monitor serves as the monitor for PJM’s wholesale markets for electricity, and\nWhereas , the Operating Agreement requires that PJM and the PJM Market Monitor maintain the confidentiality of Confidential Information;\nand\nWhereas , the Operating Agreement requires PJM and the PJM Market Monitor to disclose Confidential Information to Authorized Persons\nupon satisfaction of conditions stated in the Operating A greement, including, but not limited to, the execution of this Agreement by the Authorized\nPerson and the maintenance of the confidentiality of such information pursuant to the terms of this Agreement; and\nWhereas , PJM desires to provide Authorized Persons with the broadest possible access to Confidential Information, consistent with PJM’s\nand the PJM Market Monitor’s obligations and duties under the PJM Operating Agreement, the PJM Tariff and other applicable FERC directives;\nand\nWhereas , this Agreement is a statement of the conditions and requirements, consistent with the requirements of the Operating Agreement,\nwhereby PJM or the PJM Market Monitor may provide Confidential Information to the Authorized Person.\nPJM Interconnection, L.L.C. Original Sheet No. 197A Third Revised Rate Schedule FERC No. 24 NOW, THERFORE, intending to be legally bound, the Parties hereby agree as follows: 1. DEFINITIONS. 1.1\n1.2\n1.3\n14\n1.5\n1.6\n1.7\n1.8\n1.9\n1.10\nAffected Member. A Member of PJM which as a result of its participation in PJM’s markets or its membership in PJM provided\nConfidential Information to PJM, which Confidential Information is requested by, or is disclosed to an Authorized Person under this\nAgreement.\nAuthorized Commission. (i) A State (which shall include the District of Columbia) public utility commission within the geographic\nlimits of the PJM Region (as that term in defined in the Operating Agreement) that regulates the distribution or supply of electricity to\nretail customers and is legally charged with monitoring the operation of wholesale or retail markets serving retail suppliers or customers\nwithin its State or (ii) an association or organization comprised exclusively of State public utility commissions described in the\nimmediately preceding clause (i).\nAuthorized Person. A person, including the undersigned, which has executed this Agreement and is authorized in writing by an\nAuthorized Commission to receive and discuss Confidential Information. Authorized Persons may include attorneys representing an\nAuthorized Commission, consultants and/or contractors directly employed or retained by an Authorized Commission, provided however\nthat consultants or contractors may not initiate requests for Confidential Information from PJM or the PJM Market Monitor\nConfidential Information. Any information that would be considered non-public or confidential under the Operating Agreement.\nFERC. The Federal Energy Regulatory Commission.\nInformation Request. A written request, in accordance with the terms of this Agreement for disclosure of Confidential Information\npursuant to Section 18.17.4 of the Operating Agreement.\nOperating Agreement. The Amended and Restated Operating Agreement of PJM Interconnection, L.L.C., as it may be further amended\nor restated from time to time.\nPJM Market Monitor. The Market Monitoring Unit established under Attachment M to the PJM Tariff.\nPJM Tariff. The PJM Open Access Transmission Tariff, as it may be amended from time to time.\nThird Party Request. Any request or demand by any entity upon an Authorized Person or an Authorized Commission for release or\ndisclosure of Confidential Information. A Third Party Request shall include, but shall not be limited to, any subpoena, discovery request,\nor other request for Confidential Information made by any: (i) federal, state, or local governmental subdivision, department, official,\nagency or court, or (ii) arbitration panel, business, company, entity or individual.\nPJM Interconnection, L.L.C. Original Sheet No. 197B Third Revised Rate Schedule FERC No. 24 2. Protection of Confidentiality. 2.1\n2.2\n2.3\nDuty to Not Disclose. The Authorized Person represents and warrants that he or she: (i) is presently an Authorized Person as defined\nherein; (ii) is duly authorized to enter into and perform this Agreement; (iii) has adequate procedures to protect against the release of\nConfidential Information, and (iv) is familiar with, and will comply with, all such applicable State Commission procedures. The\nAuthorized Person hereby covenants and agrees on behalf of himself or herself to deny any Third Party Request and defend against any\nlegal process which seeks the release of Confidential Information in contravention of the terms of this Agreement.\nConditions Precedent. As a condition of the execution, delivery and effectiveness of this Agreement by PJM and the continued\nprovision of Confidential Information pursuant to the terms of this Agreement, the Authorized Commission shall, prior to the initial oral\nor written request for Confidential Information by an Authorized Person on its behalf, provide PJM with: (a) a final order of FERC\nprohibiting the release by the Authorized Person or the State Commission of Confidential Information in accordance with the terms of\nthe Operating Agreement and this Agreement; and (b) either an order of the State Commission or a certification from counsel to the State\nCommission, confirming that the State Commission has statutory authority to protect the confidentiality of the Confidential Information\nfrom public release or disclosure and from release or disclosure to any other entity, and that it has adequate procedures to protect against\nthe release of Confidential Information; and (c) confirmation in writing that the Authorized Person is authorized by the State\nCommission to enter into this Agreement and to receive Confidential Information under the Operating Agreement. PJM and the PJM\nMarket Monitor shall be expressly entitled to rely upon such FERC and State Commission orders and/or certifications of counsel in\nproviding Confidential Information to the Authorized Person, and shall in no event be liable, or subject to damages or claims of any kind\nor nature hereunder or pursuant to the Operating Agreement, due to the ineffectiveness of the FERC and/or State Commission orders, or\nthe inaccuracy of such certification of counsel.\nDiscussion of Confidential Information with other Authorized Persons . The Authorized Person may discuss Confidential\nInformation with other Authorized Persons who have executed non-disclosure agreements with PJM containing the same terms and\nconditions as this Agreement; provided, however, that PJM shall have confirmed in advance and in writing that PJM has previously\nreleased the Confidential Information in question to such Authorized Persons. PJM shall respond to any written request for confirmation\nwithin two (2) business days of its receipt.\nPJM Interconnection, L.L.C. Substitute Original Sheet No. 197C Third Revised Rate Schedule FERC No. 24 Superseding Original Sheet No. 197C 2.4 Defense Against Third Party Requests. The Authorized Person shall defend against any disclosure of Confidential Information 2.5\npursuant to any Third Party Request through all available legal process, including, but not limited to, obtaining any necessary protective\norders. The Authorized Person shall provide PJM, and PJM shall provide each Affected Member, with prompt notice of any such Third\nParty Request or legal proceedings, and shall consult with PJM and/or any Affected Member in its efforts to deny the request or defend\nagainst such legal process. In the event a protective order or other remedy is denied, the Authorized Person agrees to furnish only that\nportion of the Confidential Information which their legal counsel advises PJM (and of which PJM shall, in turn, advise any Affected\nMembers) in writing is legally required to be furnished, and to exercise their best efforts to obtain assurance that confidential treatment\nwill be accorded to such Confidential Information.\nCare and Use of Confidential Information.\n2.5.1 Control of Confidential Information. The Authorized Person(s) shall be the custodian(s) of any and all Confidential\nInformation received pursuant to the terms of this Agreement from PJM or the PJM Market Monitor.\n2.5.2 Access to Confidential Information. The Authorized Person shall ensure that Confidential Information received by that\nAuthorized Person is disseminated only to those persons publicly identified as Authorized Persons on Exhibit “A” to the\ncertification provided by the State Commission to PJM pursuant to the procedures contained in section 2.3 of this Agreement.\n2.5.3 Schedule of Authorized Persons.\n(i) The Authorized Person shall promptly notify PJM of any change that would affect the Authorized Person’s status as an\nAuthorized Person, and in such event shall request, in writing, deletion from the schedule referred to in section (ii), below.\n(i) PJM shall maintain a schedule of all Authorized Persons and the Authorized Commissions they represent, which shall be\nmade publicly available on the PJM website and/or by written request. Such schedule shall be compiled by PJM, based on\ninformation provided by any Authorized Person and/or Authorized Commission. PJM shall update the schedule promptly\nupon receipt of information from an Authorized Person or Authorized Commission, but shall have no obligation to verify\nor corroborate any such information, and shall not be liable or otherwise responsible for any inaccuracies in the schedule\ndue to incomplete or erroneous information conveyed to and relied upon by PJM in the compilation and/or maintenance of\nthe schedule.\nPJM Interconnection, L.L.C. Original Sheet No. 197D Third Revised Rate Schedule FERC No. 24 2.6\n2.54\n2.5.5\n2.5.6\nUse of Confidential Information. The Authorized Person shall use the Confidential Information solely for the purpose of\nassisting the State Commission in discharging its legal responsibility to monitor the wholesale and retail electricity markets,\noperations, transmission planning and siting and generation planning and siting materially affecting retail customers within the\nState, and for no other purpose.\nReturn of Confidential Information. Upon completion of the inquiry or investigation referred to in the Information Request, or\nfor any reason the Authorized Person is, or will no longer be an Authorized Person, the Authorized Person shall (a) return the\nConfidential Information and all copies thereof to PJM, or (b) provide a certification that the Authorized Person has destroyed all\npaper copies and deleted all electronic copies of the Confidential Information. PJM may waive this condition in writing if such\nConfidential Information has become publicly available or non-confidential in the course of business or pursuant to the PJM\nTariff, PJM rule or order of the FERC.\nNotice of Disclosures. The Authorized Person, directly or through the Authorized Commission, shall promptly notify PJM, and\nPJM shall promptly notify any Affected Member, of any inadvertent or intentional release or possible release of the Confidential\nInformation provided pursuant to this Agreement. The Authorized Person shall take all steps to minimize any further release of\nConfidential Information, and shall take reasonable steps to attempt to retrieve any Confidential Information that may have been\nreleased.\nOwnership and Privilege. Nothing in this Agreement, or incident to the provision of Confidential Information to the Authorized Person pursuant to any Information Request, is intended, nor shall it be deemed, to be a waiver or abandonment of any legal privilege that may be asserted against subsequent disclosure or discovery in any formal proceeding or investigation. Moreover, no transfer or creation of ownership rights in any intellectual property comprising Confidential Information is intended or shall be inferred by the disclosure of Confidential Information by PJM, and any and all intellectual property comprising Confidential Information disclosed and any derivations thereof shall continue to be the exclusive intellectual property of PJM and/or the Affected Member.\fPJM Interconnection, L.L.C. Substitute Original Sheet No. 197E Third Revised Rate Schedule FERC No. 24 Superseding Original Sheet No. 197E 3.  Procedure for Information Requests 3.1\n3.2\nWritten Requests. Information Requests to PJM shall be in writing, which shall include electronic communications, addressed to the\nPJM Market Monitor or other PJM representatives as specified by PJM, with a concurrent copy to PJM’s General Counsel, and shall: (a)\ndescribe with particularity the information sought; (b) provide a description of the purpose of the Information Request; (c) state the time\nperiod for which information is requested; and (d) re-affirm that only the Authorized Person shall have access to the Confidential\nInformation requested. PJM shall provide an Affected Member with written notice, which shall include electronic communication, of an\nInformation Request of the Authorized Person as soon as possible, but not later than two (2) business days after the receipt of the\nInformation Request.\nOral Disclosures by the PJM Market Monitor. The PJM Market Monitor or other PJM representatives as specified by PJM may, in the\ncourse of discussions with an Authorized Person, orally disclose information otherwise required to be maintained in confidence, without\nthe need for a prior Information Request. Such oral disclosures shall provide enough information to enable the Authorized Person or the\nState Commission to determine whether additional Information Requests for information are appropriate. The PJM Market Monitor or\nother PJM representative will not make any written or electronic disclosures of Confidential Information to the Authorized Person\npursuant to this section. In any such discussions, the PJM Market Monitor or other PJM representative shall ensure that the individual or\nindividuals receiving such Confidential Information are Authorized Persons under this Agreement, orally designate Confidential\nInformation that is disclosed, and refrain from identifying any specific Affected Member whose information is disclosed. The PJM\nMarket Monitor or other PJM representative shall also be authorized to assist Authorized Persons in interpreting Confidential\nInformation that is disclosed. PJM or the PJM Market Monitor shall (i) maintain a written record of oral disclosures pursuant to this\nsection, which shall include the date of each oral disclosure and the Confidential. Information disclosed in each such oral disclosure, and\n(ii) provide any Affected Member with oral notice of any oral disclosure immediately, but not later than one (1) business day after the\noral disclosure. Such oral notice to the Affected Member shall include the substance of the oral disclosure, but shall not reveal any\nConfidential Information of any other Member and must be received by the Affected Member before the name of the Affected Member\nis released to the Authorized Person; provided however, the identity of the Affected Party must be made available to the Authorized\nPerson within two (2) business days of the initial oral disclosure.\nPJM Interconnection, L.L.C. Original Sheet No. 197F Third Revised Rate Schedule FERC No. 24 3.3 Response to Information Requests. 3.3.1\n3.3.2\n3.3.3\nSubject to the provisions of Section 3.3.2 below, PJM shall supply Confidential Information to the Authorized Person in response\nto any Information Request within five (5) business days of the receipt of the Information Request, to the extent that the requested\nConfidential Information can be made available within such period; provided however, that in no event shall Confidential\nInformation be released prior to the end of the fourth (4%) business day without the express consent of the Affected Member. To\nthe extent that PJM can not reasonably prepare and deliver the requested Confidential Information within such five (5) day\nperiod, PJM shall, within such period, provide the Authorized Person with a written schedule for the provision of such remaining\nConfidential Information. Upon providing Confidential Information to the Authorized Person, PJM shall either provide a copy of\nthe Confidential Information to the Affected Member(s), or provide a listing of the Confidential Information disclosed; provided,\nhowever, that PJM shall not reveal any Member’s Confidential Information to any other Member.\nNotwithstanding section 3.3.1, above, should PJM or an Affected Member object to an Information Request or any portion\nthereof, PJM or the Affected Member may, within four (4) business days following PJM’s receipt of the Information Request,\nrequest, in writing (which shall include electronic communication) addressed to the State Commission with a copy to either the\nAffected Party or PJM, as the case may be, a conference with the State Commission or the State Commission’s authorized\ndesignee to resolve differences concerning the scope or timing of the Information Request; provided, however, nothing herein\nshall require the State Commission to participate in any conference. Any party to the conference may seek assistance from FERC\nstaff in resolution of the dispute. Should such conference be refused by any participant, or not resolve the dispute, then PJM, the\nAffected Member or the State Commission may initiate appropriate legal action at FERC within three (3) business days following\nreceipt of written notice from any conference participant terminating such conference. Any complaints filed at FERC objecting to\na particular Information Request shall be designated by the party as a “fast track” complaint and each party shall bear its own\ncosts in connection with such FERC proceeding. If no FERC proceeding regarding the Information Request is commenced by\nPJM, the Affected Member or the State Commission within such three day period, PJM shall utilize its best efforts to respond to\nthe Information Request promptly.\nTo the extent that a response to any Information Request requires disclosure of Confidential Information of two or more Affected\nParties, PJM shall, to the extent possible, segregate such information and respond to the Information Request separately for each\nAffected Member.\nPJM Interconnection, L.L.C. Original Sheet No. 197G Third Revised Rate Schedule FERC No. 24 4. Remedies. 4.1\n4.2\n4.3\nMaterial Breach. The Authorized Person agrees that release of Confidential Information to persons not authorized to receive it\nconstitutes a breach of this Agreement and may cause irreparable harm to PJM and/or the Affected Member. In the event of a breach of\nthis Agreement by the Authorized Person, PJM shall terminate this Agreement upon written notice to the Authorized Person and his or\nher Authorized Commission, and all rights of the Authorized Person hereunder shall thereupon terminate; provided, however, that PJM\nmay restore an individual’s status as an Authorized Person after consulting with the Affected Member and to the extent that: (i) PJM\ndetermines that the disclosure was not due to the intentional, reckless or negligent action or omission of the Authorized Person; (ii) there\nwere no harm or damages suffered by the Affected Member; or (iii) similar good cause shown. Any appeal of PJM’s actions under this\nsection shall be to FERC.\nJudicial Recourse. In the event of any breach of this Agreement, PJM and/or the Affected Member shall have the right to seek and\nobtain at least the following types of relief: (a) an order from FERC requiring any breach to cease and preventing any future breaches;\n(b) temporary, preliminary, and/or permanent injunctive relief with respect to any breach; and (c) the immediate return of all Confidential\nInformation to PJM. The Authorized Person expressly agrees that in the event of a breach of this Agreement, any relief sought properly\nincludes, but shall not be limited to, the immediate return of all Confidential Information to PJM.\nWaiver of Monetary Damages. No Authorized Person shall have responsibility or liability whatsoever under this Agreement for any\nand all liabilities, losses, damages, demands, fines, monetary judgments, penalties, costs and expenses caused by, resulting from, or\narising out of, or in connection with, the release of Confidential Information to persons not authorized to receive it, provided that such\nAuthorized Person is an employee or member of an Authorized Commission at the time of such unauthorized release. Nothing in this\nSection 4.3 is intended to limit the liability of any person who is not an employee of or a member of an Authorized Commission at the\ntime of such unauthorized release for any and all economic losses, damages, demands, fines, monetary judgments, penalties, costs and\nexpenses caused by, resulting from, or arising out of or in connection with such unauthorized release.\nJurisdiction. The Parties agree that (i) any dispute or conflict requesting the relief in sections 4.1, and 4.2(a) above shall be submitted to FERC for hearing and resolution; (ii) any dispute or conflict requesting the relief in section 4.2(c) above may be submitted to FERC or any court of competent jurisdiction for hearing and resolution; and (iii) jurisdiction over all other actions and requested relief shall lie in any court of competent jurisdiction.\fPJM Interconnection, L.L.C.\nThird Revised Rate Schedule FERC No. 24 Substitute Original Sheet No. 197H\nSuperseding Original Sheet No. 197H\n6.  Notices. All notices required pursuant to the terms of this Agreement shall be in writing, and served upon the following individuals in person, or at the following addresses or email addresses: If to the Authorized Person: If to PIM:\n(email address)\nwith a copy to\n(email address)\nMarket Monitor\nPJM Interconnection, LL.C\n955 Jefferson Avenue\nValley Forge Corporate Center\nNorristown, PA 19403\nbowrij@pjm.com\nwith a copy to\nGeneral Counsel\n955 Jefferson Avenue\nValley Forge Corporate Center\nNorristown, PA 19403\nhagelj@pjm.com\nPJM Interconnection, L.L.C. Substitute Original Sheet No. 1971 Third Revised Rate Schedule FERC No. 24 Superseding Original Sheet No. 1971 Severability and Survival. In the event any provision of this Agreement is determined to be unenforceable as a matter of law, the Parties\nintend that all other provisions of this Agreement remain in full force and effect in accordance with their terms. In the event of conflicts\nbetween the terms of this Agreement and the Operating Agreement, the terms of the Operating Agreement shall in all events be controlling.\nThe Authorized Person acknowledges that any and all obligations of the Authorized Person hereunder shall survive the severance or\ntermination of any employment or retention relationship between the Authorized Person and their respective Authorized Commission.\n8.  Representations. The undersigned represent and warrant that they are vested with all necessary corporate, statutory and/or regulatory\nauthority to execute and deliver this Agreement, and to perform all of the obligations and duties contained herein.\n9.  Third Party Beneficiaries. The Parties specifically agree and acknowledge that each Member as defined in the Operating Agreement is an\nintended third party beneficiary of this Agreement entitled to enforce its provisions.\n10. Counterparts. This Agreement may be executed in counterparts and all such counterparts together shall be deemed to constitute a single\nexecuted original.\n11. Amendment. This Agreement may not be amended except by written agreement executed by authorized representatives of the Parties.\nPJM INTERCONNECTION, L.L.C. AUTHORIZED PERSON\nBy: By:\nName: Name:\nTitle: Title:	PJM Interconnection, L.L.C.\nSubstitute First Revised Sheet No. 197\nThird Revised Rate Schedule FERC No. 24\nSuperseding First Revised Sheet No. 197\nSCHEDULE 10 -\nFORM OF NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (the "Agreement") is made this day of 2004, by and between\nan\nAuthorized Person, as defined below, of (the "State Commission") having jurisdiction within the State of with offices at\nand PJM Interconnection, L.L.C., a Delaware limited liability company, with offices at 955 Jefferson Avenue, Valley Forge Corporate\nCenter, Norristown, PA 10403 ("PJM"). The State Commission and PJM shall be referred to herein individually as a "Party," or collectively as the\n"Parties."\nRECITALS\nWhereas PJM serves as the Regional Transmission Organization with reliability and/or functional control responsibilities over transmission\nsystems involving fourteen states including the District of Columbia, and operates and oversees wholesale markets for electricity pursuant to the\nrequirements of the PJM Tariff and the Operating Agreement, as defined below; and\nWhereas, the PJM Market Monitor serves as the monitor for PJM's wholesale markets for electricity, and\nWhereas the Operating Agreement requires that PJM and the PJM Market Monitor maintain the confidentiality of Confidential Information;\nand\nWhereas the Operating Agreement requires PJM and the PJM Market Monitor to disclose Confidential Information to Authorized Persons\nupon satisfaction of conditions stated in the Operating Agreement, including, but not limited to, the execution of this Agreement by the Authorized\nPerson and the maintenance of the confidentiality of such information pursuant to the terms of this Agreement; and\nWhereas PJM desires to provide Authorized Persons with the broadest possible access to Confidential Information, consistent with PJM's\nand the PJM Market Monitor's obligations and duties under the PJM Operating Agreement, the PJM Tariff and other applicable FERC directives;\nand\nWhereas, this Agreement is a statement of the conditions and requirements, consistent with the requirements of the Operating Agreement,\nwhereby PJM or the PJM Market Monitor may provide Confidential Information to the Authorized Person.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197A\nThird Revised Rate Schedule FERC No. 24\nNOW, THERFORE, intending to be legally bound, the Parties hereby agree as follows:\n1. DEFINITIONS.\n1.1 Affected Member. A Member of PJM which as a result of its participation in PJM's markets or its membership in PJM provided\nConfidential Information to PJM, which Confidential Information is requested by, or is disclosed to an Authorized Person under this\nAgreement.\n1.2 Authorized Commission. (i) A State (which shall include the District of Columbia) public utility commission within the geographic\nlimits of the PJM Region (as that term in defined in the Operating Agreement) that regulates the distribution or supply of electricity\nto\nretail customers and is legally charged with monitoring the operation of wholesale or retail markets serving retail suppliers or customers\nwithin its State or (ii) an association or organization comprised exclusively of State public utility commissions described in the\nimmediately preceding clause (i).\n1.3 Authorized Person. A person, including the undersigned, which has executed this Agreement and is authorized in writing by an\nAuthorized Commission to receive and discuss Confidential Information. Authorized Persons may include attorneys representing an\nAuthorized Commission, consultants and/or contractors directly employed or retained by an Authorized Commission, provided however\nthat consultants or contractors may not initiate requests for Confidential Information from PJM or the PJM Market Monitor\n1.4 Confidential Information. Any information that would be considered non-public or confidential under the Operating Agreement.\n1.5 FERC. The Federal Energy Regulatory Commission.\n1.6 Information Request. A written request, in accordance with the terms of this Agreement for disclosure of Confidential Information\npursuant to Section 18.17.4 of the Operating Agreement.\n1.7 Operating Agreement. The Amended and Restated Operating Agreement of PJM Interconnection, L.L.C., as it may be further amended\nor restated from time to time.\n1.8 PJM Market Monitor. The Market Monitoring Unit established under Attachment M to the PJM Tariff.\n1.9 PJM Tariff. The PJM Open Access Transmission Tariff, as it may be amended from time to time.\n1.10 Third Party Request. Any request or demand by any entity upon an Authorized Person or an Authorized Commission for release or\ndisclosure of Confidential Information. A Third Party Request shall include, but shall not be limited to, any subpoena, discovery request,\nor other request for Confidential Information made by any: (i) federal, state, or local governmental subdivision, department, official,\nagency or court, or (ii) arbitration panel, business, company, entity or individual.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197B\nThird Revised Rate Schedule FERC No. 24\n2.\nProtection of Confidentiality.\n2.1 Duty to Not Disclose. The Authorized Person represents and warrants that he or she: (i) is presently an Authorized Person as defined\nherein; (ii) is duly authorized to enter into and perform this Agreement; (iii) has adequate procedures to protect against the release of\nConfidential Information, and (iv) is familiar with, and will comply with, all such applicable State Commission procedures. The\nAuthorized Person hereby covenants and agrees on behalf of himself or herself to deny any Third Party Request and defend against\nany\nlegal process which seeks the release of Confidential Information in contravention of the terms of this Agreement.\n2.2 Conditions Precedent. As a condition of the execution, delivery and effectiveness of this Agreement by PJM and the continued\nprovision of Confidential Information pursuant to the terms of this Agreement, the Authorized Commission shall, prior to the initial oral\nor written request for Confidential Information by an Authorized Person on its behalf, provide PJM with: (a) a final order of FERC\nprohibiting the release by the Authorized Person or the State Commission of Confidentia Information in accordance with the terms of\nthe Operating Agreement and this Agreement; and (b) either an order of the State Commission or a certification from counsel to the State\nCommission, confirming that the State Commission has statutory authority to protect the confidentiality of the Confidential Information\nfrom public release or disclosure and from release or disclosure to any other entity, and that it has adequate procedures to protect against\nthe release of Confidential Information; and (c) confirmation in writing that the Authorized Person is authorized by the State\nCommission to enter into this Agreement and to receive Confidential Information under the Operating Agreement. PJM and the PJM\nMarket Monitor shall be expressly entitled to rely upon such FERC and State Commission orders and/or certifications of counsel in\nproviding Confidential Information to the Authorized Person, and shall in no event be liable, or subject to damages or claims of any kind\nor nature hereunder or pursuant to the Operating Agreement, due to the ineffectiveness of the FERC and/or State Commission orders, or\nthe inaccuracy of such certification of counsel.\n2.3 Discussion of Confidential Information with other Authorized Persons The Authorized Person may discuss Confidential\nInformation with other Authorized Persons who have executed non-disclosure agreements with PJM containing the same terms and\nconditions as this Agreement; provided, however, that PJM shall have confirmed in advance and in writing that PJM has previously\nreleased the Confidential Information in question to such Authorized Persons. PJM shall respond to any written request for confirmation\nwithin two (2) business days of its receipt.\nPJM Interconnection, L.L.C.\nSubstitute Original Sheet No. 197C\nThird Revised Rate Schedule FERC No. 24\nSuperseding Original Sheet No. 197C\n2.4 Defense Against Third Party Requests. The Authorized Person shall defend against any disclosure of Confidential Information\npursuant to any Third Party Request through all available legal process, including, but not limited to, obtaining any necessary protective\norders. The Authorized Person shall provide PJM, and PJM shall provide each Affected Member, with prompt notice of any such Third\nParty Request or legal proceedings, and shall consult with PJM and/or any Affected Member in its efforts to deny the request or defend\nagainst such legal process. In the event a protective order or other remedy is denied, the Authorized Person agrees to furnish only that\nportion of the Confidential Information which their legal counsel advises PJM (and of which PJM shall, in turn, advise any Affected\nMembers) in writing is legally required to be furnished, and to exercise their best efforts to obtain assurance that confidential treatment\nwill be accorded to such Confidentia Information.\n2.5 Care and Use of Confidential Information.\n2.5.1 Control of Confidential Information. The Authorized Person(s) shall be the custodian(s) of any and all Confidential\nInformation received pursuant to the terms of this Agreement from PJM or the PJM Market Monitor.\n2.5.2 Access to Confidential Information. The Authorized Person shall ensure that Confidential Information received by that\nAuthorized Person is disseminated only to those persons publicly identified as Authorized Persons on Exhibit "A" to the\ncertification provided by the State Commission to PJM pursuant to the procedures contained in section 2.3 of this Agreement.\n2.5.3 Schedule of Authorized Persons.\n(i)\nThe Authorized Person shall promptly notify PJM of any change that would affect the Authorized Person's status as an\nAuthorized Person and in such event shall request, in writing, deletion from the schedule referred to in section (ii), below.\n(ii)\nPJM shall maintain a schedule of all Authorized Persons and the Authorized Commissions they represent, which shall be\nmade publicly available on the PJM website and/or by written request. Such schedule shall be compiled by PJM, based on\ninformation provided by any Authorized Person and/or Authorized Commission. PJM shall update the schedule promptly\nupon receipt of information from an Authorized Person or Authorized Commission, but shall have no obligation to verify\nor corroborate any such information, and shall not be liable or otherwise responsible for any inaccuracies in the schedule\ndue to incomplete or erroneous information conveyed to and relied upon by PJM in the compilation and/or maintenance of\nthe schedule.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197D\nThird Revised Rate Schedule FERC No. 24\n2.5.4 Use of Confidential Information. The Authorized Person shall use the Confidential Information solely for the purpose of\nassisting the State Commission in discharging its legal responsibility to monitor the wholesale and retail electricity markets,\noperations, transmission planning and siting and generation planning and siting materially affecting retail customers within the\nState, and for no other purpose.\n2.5.5 Return of Confidential Information. Upon completion of the inquiry or investigation referred to in the Information Request, or\nfor any reason the Authorized Person is, or will no longer be an Authorized Person, the Authorized Person shall (a) return the\nConfidential Information and all copies thereof to PJM, or (b) provide a certification that the Authorized Person has destroyed all\npaper copies and deleted all electronic copies of the Confidential Information. PJM may waive this condition in writing if such\nConfidential Information has become publicly available or non-confidential in the course of business or pursuant to the PJM\nTariff, PJM rule or order of the FERC.\n2.5.6 Notice of Disclosures. The Authorized Person, directly or through the Authorized Commission, shall promptly notify PJM, and\nPJM shall promptly notify any Affected Member, of any inadvertent or intentional release or possible release of the Confidential\nInformation provided pursuant to this Agreement. The Authorized Person shall take all steps to minimize any further release of\nConfidential Information, and shall take reasonable steps to attempt to retrieve any Confidential Information that may have been\nreleased.\n2.6 Ownership and Privilege. Nothing in this Agreement, or incident to the provision of Confidential Information to the Authorized Person\npursuant to any Information Request, is intended, nor shall it be deemed, to be a waiver or abandonment of any legal privilege that may\nbe asserted against subsequent disclosure or discovery in any formal proceeding or investigation. Moreover, no transfer or creation of\nownership rights in any intellectual property comprising Confidential Information is intended or shall be inferred by the disclosure of\nConfidential Information by PJM, and any and all intellectual property comprising Confidential Information disclosed and any\nderivations thereof shall continue to be the exclusive intellectual property of PJM and/or the Affected Member.\nPJM Interconnection, L.L.C.\nSubstitute Original Sheet No. 197E\nThird Revised Rate Schedule FERC No. 24\nSuperseding Original Sheet No. 197E\n3.\nProcedure for Information Requests\n3.1 Written Requests. Information Requests to PJM shall be in writing, which shall include electronic communications, addressed to the\nPJM Market Monitor or other PJM representatives as specified by PJM, with a concurrent copy to PJM's General Counsel, and shall: (a)\ndescribe with particularity the information sought; (b) provide a description of the purpose of the Information Request; (c) state the time\nperiod for which information is requested; and (d) re-affirm that only the Authorized Person shall have access to the Confidential\nInformation requested. PJM shall provide an Affected Member with written notice, which shall include electronic communication, of an\nInformation Request of the Authorized Person as soon as possible, but not later than two (2) business days after the receipt of the\nInformation Request.\n3.2 Oral Disclosures by the PJM Market Monitor. The PJM Market Monitor or other PJM representatives as specified by PJM may, in the\ncourse of discussions with an Authorized Person, orally disclose information otherwise required to be maintained in confidence, without\nthe need for a prior Information Request. Such oral disclosures shall provide enough information to enable the Authorized Person or the\nState Commission to determine whether additional Information Requests for information are appropriate. The PJM Market Monitor or\nother PJM representative will not make any written or electronic disclosures of Confidential Information to the Authorized Person\npursuant to this section. In any such discussions, the PJM Market Monitor or other PJM representative shall ensure that the individual or\nindividuals receiving such Confidential Information are Authorized Persons under this Agreement, orally designate Confidential\nInformation that is disclosed, and refrain from identifying any specific Affected Member whose information is disclosed. The PJM\nMarket Monitor or other PJM representative shall also be authorized to assist Authorized Persons in interpreting Confidential\nInformation that is disclosed. PJM or the PJM Market Monitor shall (i) maintain a written record of oral disclosures pursuant to this\nsection, which shall include the date of each oral disclosure and the Confidential. Information disclosed in each such oral disclosure, and\n(ii) provide any Affected Member with oral notice of any oral disclosure immediately, but not later than one (1) business day after the\noral disclosure. Such oral notice to the Affected Member shall include the substance of the oral disclosure, but shall not reveal any\nConfidential Information of any other Member and must be received by the Affected Member before the name of the Affected Member\nis released to the Authorized Person; provided however, the identity of the Affected Party must be made available to the Authorized\nPerson within two (2) business days of the initial oral disclosure.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197F\nThird Revised Rate Schedule FERC No. 24\n3.3 Response to Information Requests.\n3.3.1 Subject to the provisions of Section 3.3.2 below, PJM shall supply Confidential Information to the Authorized Person in response\nto any Information Request within five (5) business days of the receipt of the Information Request, to the extent that the requested\nConfidential Information can be made available within such period; provided however, that in no event shall Confidential\nInformation be released prior to the end of the fourth (4th) business day without the express consent of the Affected Member. To\nthe extent that PJM can not reasonably prepare and deliver the requested Confidential Information within such five (5) day\nperiod, PJM shall, within such period, provide the Authorized Person with a written schedule for the provision of such remaining\nConfidential Information. Upon providing Confidential Information to the Authorized Person, PJM shall either provide a copy of\nthe Confidential Information to the Affected Member(s), or provide a listing of the Confidential Information disclosed; provided,\nhowever, that PJM shall not reveal any Member's Confidential Information to any other Member.\n3.3.2 Notwithstanding section 3.3.1, above, should PJM or an Affected Member object to an Information Request or any portion\nthereof, PJM or the Affected Member may, within four (4) business days following PJM's receipt of the Information Request,\nrequest, in writing (which shall include electronic communication) addressed to the State Commission with a copy to either\nthe\nAffected Party or PJM, as the case may be, a conference with the State Commission or the State Commission's authorized\ndesignee to resolve differences concerning the scope or timing of the Information Request; provided, however, nothing herein\nshall require the State Commission to participate in any conference. Any party to the conference may seek assistance from FERC\nstaff in resolution of the dispute. Should such conference be refused by any participant, or not resolve the dispute, then PJM, the\nAffected Member or the State Commission may initiate appropriate legal action at FERC within three (3) business days following\nreceipt of written notice from any conference participant terminating such conference. Any complaints filed at FERC objecting to\na particular Information Request shall be designated by the party as a "fast track" complaint and each party shall bear its own\ncosts in connection with such FERC proceeding. If no FERC proceeding regarding the Information Request is commenced by\nPJM, the Affected Member or the State Commission within such three day period, PJM shall utilize its best efforts to respond to\nthe Information Request promptly.\n3.3.3 To the extent that a response to any Information Request requires disclosure of Confidential Information of two or more Affected\nParties, PJM shall, to the extent possible, segregate such information and respond to the Information Request separately for each\nAffected Member.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197G\nThird Revised Rate Schedule FERC No. 24\n4. Remedies.\n4.1 Material Breach. The Authorized Person agrees that release of Confidentia Information to persons not authorized to receive it\nconstitutes a breach of this Agreement and may cause irreparable harm to PJM and/or the Affected Member. In the event of a breach of\nthis Agreement by the Authorized Person, PJM shall terminate this Agreement upon written notice to the Authorized Person and his or\nher Authorized Commission, and all rights of the Authorized Person hereunder shall thereupon terminate; provided, however, that PJM\nmay restore an individual's status as an Authorized Person after consulting with the Affected Member and to the extent that: (i) PJM\ndetermines that the disclosure was not due to the intentional, reckless or negligent action or omission of the Authorized Person; (ii) there\nwere no harm or damages suffered by the Affected Member; or (iii) similar good cause shown. Any appeal of PJM's actions under this\nsection shall be to FERC.\n4.2 Judicial Recourse. In the event of any breach of this Agreement, PJM and/or the Affected Member shall have the right to seek and\nobtain at least the following types of relief: (a) an order from FERC requiring any breach to cease and preventing any future breaches;\n(b) temporary, preliminary, and/or permanent injunctive relief with respect to any breach; and (c) the immediate return of all Confidential\nInformation to PJM. The Authorized Person expressly agrees that in the event of a breach of this Agreement, any relief sought properly\nincludes, but shall not be limited to, the immediate return of all Confidential Information to PJM.\n4.3 Waiver of Monetary Damages. No Authorized Person shall have responsibility or liability whatsoever under this Agreement for any\nand all liabilities, losses, damages, demands, fines, monetary judgments, penalties, costs and expenses caused by, resulting from,\nor\narising out of, or in connection with, the release of Confidential Information to persons not authorized to receive it, provided that such\nAuthorized Person is an employee or member of an Authorized Commission at the time of such unauthorized release. Nothing in this\nSection 4.3 is intended to limit the liability of any person who is not an employee of or a member of an Authorized Commission at the\ntime of such unauthorized release for any and all economic losses, damages, demands, fines, monetary judgments, penalties, costs and\nexpenses caused by, resulting from, or arising out of or in connection with such unauthorized release.\n5.\nJurisdiction. The Parties agree that (i) any dispute or conflict requesting the relief in sections 4.1, and 4.2(a) above shall be submitted to\nFERC for hearing and resolution; (ii) any dispute or conflict requesting the relief in section 4.2(c) above may be submitted to FERC or any\ncourt of competent jurisdiction for hearing and resolution; and (iii) jurisdiction over all other actions and requested relief shall lie in any court\nof competent jurisdiction.\nPJM Interconnection, L.L.C.\nSubstitute Original Sheet No. 197H\nThird Revised Rate Schedule FERC No. 24\nSuperseding Original Sheet No. 197H\n6.\nNotices. All notices required pursuant to the terms of this Agreement shall be in writing, and served upon the following individuals in person,\nor at the following addresses or email addresses:\nIf to the Authorized Person:\n(email address)\nwith a copy to\n(email address)\nIf to PJM:\nMarket Monitor\nPJM Interconnection, LLC\n955 Jefferson Avenue\nValley Forge Corporate Center\nNorristown, PA 19403\nbowrij@pjm.com\nwith a copy to\nGeneral Counsel\n955 Jefferson Avenue\nValley Forge Corporate Center\nNorristown, PA 19403\nhagelj@pjm.com\nPJM Interconnection, L.L.C.\nSubstitute Original Sheet No. 197I\nThird Revised Rate Schedule FERC No. 24\nSuperseding Original Sheet No. 197I\n7.\nSeverability and Survival. In the event any provision of this Agreement is determined to be unenforceable as a matter of law, the Parties\nintend that all other provisions of this Agreement remain in full force and effect in accordance with their terms. In the event of conflicts\nbetween the terms of this Agreement and the Operating Agreement, the terms of the Operating Agreement shall in all events be controlling.\nThe Authorized Person acknowledges that any and all obligations of the Authorized Person hereunder shall survive the severance or\ntermination of any employment or retention relationship between the Authorized Person and their respective Authorized Commission.\n8. Representations. The undersigned represent and warrant that they are vested with all necessary corporate, statutory and/or regulatory\nauthority to execute and deliver this Agreement, and to perform all of the obligations and duties contained herein.\n9.\nThird Party Beneficiaries. The Parties specifically agree and acknowledge that each Member as defined in the Operating Agreement is an\nintended third party beneficiary of this Agreement entitled to enforce its provisions.\n10. Counterparts. This Agreement may be executed in counterparts and all such counterparts together shall be deemed to constitute a single\nexecuted original.\n11. Amendment. This Agreement may not be amended except by written agreement executed by authorized representatives of the Parties.\nPJM INTERCONNECTION, L.L.C.\nAUTHORIZED PERSON\nBy:\nBy:\nName:\nName:\nTitle:\nTitle:	PJM Interconnection, L.L.C.\nSubstitute First Revised Sheet No. 197\nThird Revised Rate Schedule FERC No. 24\nSuperseding First Revised Sheet No. 197\nSCHEDULE 10 -\nFORM OF NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (the “Agreement”) is made this\nday of\n, 2004, by and between\n,an\nAuthorized Person, as defined below, of\n(the “State Commission”) having jurisdiction within the State of\n, with offices at\nand PJM Interconnection, L.L .C., a Delaware limited liability company, with offices at 955 Jefferson Avenue, Valley Forge Corporate\nCenter, Norristown, PA 10403 (“PJM”). The State Commission and PJM shall be referred to herein individually as a “Party,” or collectively as the\n“Parties.”\nRECITALS\nWhereas , PJM serves as the Regional Transmission Organization with reliability and/or functional control responsibilities over transmission\nsystems involving fourteen states including the District of Columbia, and operates and oversees wholesale markets for electricity pursuant to the\nrequirements of the PJM Tariff and the Operating Agreement, as defined below; and\nWhereas, the PJM Market Monitor serves as the monitor for PJM’s wholesale markets for electricity, and\nWhereas , the Operating Agreement requires that PJM and the PJM Market Monitor maintain the confidentiality of Confidential Information;\nand\nWhereas , the Operating Agreement requires PJM and the PJM Market Monitor to disclose Confidential Information to Authorized Persons\nupon satisfaction of conditions stated in the Operating Agreement, including, but not limited to, the execution of this Agreement by the Authorized\nPerson and the maintenance of the confidentiality of such information pursuant to the terms of this Agreement; and\nWhereas , PJM desires to provide Authorized Persons with the broadest possible access to Confidential Information, consistent with PJM’s\nand the PJM Market Monitor’s obligations and duties under the PJM Operating Agreement, the PJM Tariff and other applicable FERC directives;\nand\nWhereas , this Agreement is a statement of the conditions and requirements, consistent with the requirements of the Operating Agreement,\nwhereby PJM or the PJM Market Monitor may provide Confidential Information to the Authorized Person.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197A\nThird Revised Rate Schedule FERC No. 24\nNOW, THERFORE, intending to be legally bound, the Parties hereby agree as follows:\n1. DEFINITIONS.\n1.1 Affected Member. A Member of PJM which as a result of its participation in PJM’s markets or its membership in PJM provided\nConfidential Information to PJM, which Confidential Information is requested by, or is disclosed to an Authorized Person under this\nAgreement.\n1.2 Authorized Commission. (i) A State (which shall include the District of Columbia) public utility commission within the geographic\nlimits of the PJM Region (as that term in defined in the Operating Agreement) that regulates the distribution or supply of electricity to\nretail customers and is legally charged with monitoring the operation of wholesale or retail markets serving retail suppliers or customers\nwithin its State or (ii) an association or organization comprised exclusively of State public utility commissions described in the\nimmediately preceding clause (i).\n1.3 Authorized Person. A person, including the undersigned, which has executed this Agreement and is authorized in writing by an\nAuthorized Commission to receive and discuss Confidential Information. Authorized Persons may include attorneys representing an\nAuthorized Commission, consultants and/or contractors directly employed or retained by an Authorized Commission, provided however\nthat consultants or contractors may not initiate requests for Confidential Information from PJM or the PJM Market Monitor\n1.4 Confidential Information. Any information that would be considered non-public or confidential under the Operating Agreement.\n1.5 FERC. The Federal Energy Regulatory Commission.\n1.6 Information Request. A written request, in accordance with the terms of this Agreement for disclosure of Confidential Information\npursuant to Section 18.17 .4 of the Operating Agreement.\n1.7 Operating Agreement. The Amended and Restated Operating Agreement of PJM Interconnection, L.L .C., as it may be further amended\nor restated from time to time.\n1.8 PJM Market Monitor. The Market Monitoring Unit established under Attachment M to the PJM Tariff.\n1.9 PJM Tariff. The PJM Open Access Transmission Tariff, as it may be amended from time to time.\n1.10 Third Party Request. Any request or demand by any entity upon an Authorized Person or an Authorized Commission for release or\ndisclosure of Confidential Information. A Third Party Request shall include, but shall not be limited to, any subpoena, discovery request,\nor other request for Confidential Information made by any: (i) federal, state, or local governmental subdivision, department, official,\nagency or court, or (ii) arbitration panel, business, company, entity or individual.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197B\nThird Revised Rate Schedule FERC No. 24\n2. Protection of Confidentiality.\n2.1 Duty to Not Disclose. The Authorized Person represents and warrants that he or she: (i) is presently an Authorized Person as defined\nherein; (ii) is duly authorized to enter into and perform this Agreement; (iii) has adequate procedures to protect against the release of\nConfidential Information, and (iv) is familiar with, and will comply with, all such applicable State Commission procedures. The\nAuthorized Person hereby covenants and agrees on behalf of himself or herself to deny any Third Party Request and defend against any\nlegal process which seeks the release of Confidential Information in contravention of the terms of this Agreement.\n2.2 Conditions Precedent. As a condition of the execution, delivery and effectiveness of this Agreement by PJM and the continued\nprovision of Confidential Information pursuant to the terms of this Agreement, the Authorized Commission shall, prior to the initial oral\nor written request for Confidential Information by an Authorized Person on its behalf, provide PJM with: (a) a final order of FERC\nprohibiting the release by the Authorized Person or the State Commission of Confidential Information in accordance with the terms of\nthe Operating Agreement and this Agreement; and (b) either an order of the State Commission or a certification from counsel to the State\nCommission, confirming that the State Commission has statutory authority to protect the confidentiality of the Confidential Information\nfrom public release or disclosure and from release or disclosure to any other entity, and that it has adequate procedures to protect against\nthe release of Confidential Information; and (c) confirmation in writing that the Authorized Person is authorized by the State\nCommission to enter into this Agreement and to receive Confidential Information under the Operating Agreement. PJM and the PJM\nMarket Monitor shall be expressly entitled to rely upon such FERC and State Commission orders and/or certifications of counsel in\nproviding Confidential Information to the Authorized Person, and shall in no event be liable, or subject to damages or claims of any kind\nor nature hereunder or pursuant to the Operating Agreement, due to the ineffectiveness of the FERC and/or State Commission orders, or\nthe inaccuracy of such certification of counsel.\n2.3 Discussion of Confidential Information with other Authorized Persons . The Authorized Person may discuss Confidential\nInformation with other Authorized Persons who have executed non-disclosure agreements with PJM containing the same terms and\nconditions as this Agreement; provided, however, that PJM shall have confirmed in advance and in writing that PJM has previously\nreleased the Confidential Information in question to such Authorized Persons. PJM shall respond to any written request for confirmation\nwithin two (2) business days of its receipt.\nPJM Interconnection, L.L.C.\nSubstitute Original Sheet No. 197C\nThird Revised Rate Schedule FERC No. 24\nSuperseding Original Sheet No. 197C\n2.4 Defense Against Third Party Requests. The Authorized Person shall defend against any disclosure of Confidential Information\npursuant to any Third Party Request through all available legal process, including, but not limited to, obtaining any necessary protective\norders. The Authorized Person shall provide PJM, and PJM shall provide each Affected Member, with prompt notice of any such Third\nParty Request or legal proceedings, and shall consult with PJM and/or any Affected Member in its efforts to deny the request or defend\nagainst such legal process. In the event a protective order or other remedy is denied, the Authorized Person agrees to furnish only that\nportion of the Confidential Information which their legal counsel advises PJM (and of which PJM shall, in turn, advise any Affected\nMembers) in writing is legally required to be furnished, and to exercise their best efforts to obtain assurance that confidential treatment\nwill be accorded to such Confidential Information.\n2.5 Care and Use of Confidential Information.\n2.5.1 Control of Confidential Information. The Authorized Person(s) shall be the custodian(s) of any and all Confidential\nInformation received pursuant to the terms of this Agreement from PJM or the PJM Market Monitor.\n2.5.2 Access to Confidential Information. The Authorized Person shall ensure that Confidential Information received by that\nAuthorized Person is disseminated only to those persons publicly identified as Authorized Persons on Exhibit “A” to the\ncertification provided by the State Commission to PJM pursuant to the procedures contained in section 2.3 of this Agreement.\n2.5.3 Schedule of Authorized Persons.\n(i) The Authorized Person shall promptly notify PJM of any change that would affect the Authorized Person’s status as an\nAuthorized Person, and in such event shall request, in writing, deletion from the schedule referred to in section (ii), below.\n(ii) PJM shall maintain a schedule of all Authorized Persons and the Authorized Commissions they represent, which shall be\nmade publicly available on the PJM website and/or by written request. Such schedule shall be compiled by PJM, based on\ninformation provided by any Authorized Person and/or Authorized Commission. PJM shall update the schedule promptly\nupon receipt of information from an Authorized Person or Authorized Commission, but shall have no obligation to verify\nor corroborate any such information, and shall not be liable or otherwise responsible for any inaccuracies in the schedule\ndue to incomplete or erroneous information conveyed to and relied upon by PJM in the compilation and/or maintenance of\nthe schedule.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197D\nThird Revised Rate Schedule FERC No. 24\n2.5.4 Use of Confidential Information. The Authorized Person shall use the Confidential Information solely for the purpose of\nassisting the State Commission in discharging its legal responsibility to monitor the wholesale and retail electricity markets,\noperations, transmission planning and siting and generation planning and siting materially affecting retail customers within the\nState, and for no other purpose.\n2.5.5 Return of Confidential Information. Upon completion of the inquiry or investigation referred to in the Information Request, or\nfor any reason the Authorized Person is, or will no longer be an Authorized Person, the Authorized Person shall (a) return the\nConfidential Information and all copies thereof to PJM, or (b) provide a certification that the Authorized Person has destroyed all\npaper copies and deleted all electronic copies of the Confidential Information. PJM may waive this condition in writing if such\nConfidential Information has become publicly available or non-confidential in the course of business or pursuant to the PJM\nTariff, PJM rule or order of the FERC.\n2.5.6 Notice of Disclosures. The Authorized Person, directly or through the Authorized Commission, shall promptly notify PJM, and\nPJM shall promptly notify any Affected Member, of any inadvertent or intentional release or possible release of the Confidential\nInformation provided pursuant to this Agreement. The Authorized Person shall take all steps to minimize any further release of\nConfidential Information, and shall take reasonable steps to attempt to retrieve any Confidential Information that may have been\nreleased.\n2.6 Ownership and Privilege. Nothing in this Agreement, or incident to the provision of Confidential Information to the Authorized Person\npursuant to any Information Request, is intended, nor shall it be deemed, to be a waiver or abandonment of any legal privilege that may\nbe asserted against subsequent disclosure or discovery in any formal proceeding or investigation. Moreover, no transfer or creation of\nownership rights in any intellectual property comprising Confidential Information is intended or shall be inferred by the disclosure of\nConfidential Information by PJM, and any and all intellectual property comprising Confidential Information disclosed and any\nderivations thereof shall continue to be the exclusive intellectual property of PJM and/or the Affected Member.\nPJM Interconnection, L.L.C.\nSubstitute Original Sheet No. 197E\nThird Revised Rate Schedule FERC No. 24\nSuperseding Original Sheet No. 197E\n3. Procedure for Information Requests\n3.1 Written Requests. Information Requests to PJM shall be in writing, which shall include electronic communications, addressed to the\nPJM Market Monitor or other PJM representatives as specified by PJM, with a concurrent copy to PJM’s General Counsel, and shall: (a)\ndescribe with particularity the information sought; (b) provide a description of the purpose of the Information Request; (c) state the time\nperiod for which information is requested; and (d) re-affirm that only the Authorized Person shall have access to the Confidential\nInformation requested. PJM shall provide an Affected Member with written notice, which shall include electronic communication, of an\nInformation Request of the Authorized Person as soon as possible, but not later than two (2) business days after the receipt of the\nInformation Request.\n3.2 Oral Disclosures by the PJM Market Monitor. The PJM Market Monitor or other PJM representatives as specified by PJM may, in the\ncourse of discussions with an Authorized Person, orally disclose information otherwise required to be maintained in confidence, without\nthe need for a prior Information Request. Such oral disclosures shall provide enough information to enable the Authorized Person or the\nState Commission to determine whether additional Information Requests for information are appropriate. The PJM Market Monitor or\nother PJM representative will not make any written or electronic disclosures of Confidential Information to the Authorized Person\npursuant to this section. In any such discussions, the PJM Market Monitor or other PJM representative shall ensure that the individual or\nindividuals receiving such Confidential Information are Authorized Persons under this Agreement, orally designate Confidential\nInformation that is disclosed, and refrain from identifying any specific Affected Member whose information is disclosed. The PJM\nMarket Monitor or other PJM representative shall also be authorized to assist Authorized Persons in interpreting Confidential\nInformation that is disclosed. PJM or the PJM Market Monitor shall (i) maintain a written record of oral disclosures pursuant to this\nsection, which shall include the date of each oral disclosure and the Confidential. Information disclosed in each such oral disclosure, and\n(ii) provide any Affected Member with oral notice of any oral disclosure immediately, but not later than one (1) business day after the\noral disclosure. Such oral notice to the Affected Member shall include the substance of the oral disclosure, but shall not reveal any\nConfidential Information of any other Member and must be received by the Affected Member before the name of the Affected Member\nis released to the Authorized Person; provided however, the identity of the Affected Party must be made available to the Authorized\nPerson within two (2) business days of the initial oral disclosure.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197F\nThird Revised Rate Schedule FERC No. 24\n3.3 Response to Information Requests.\n3.3.1 Subject to the provisions of Section 3.3.2 below, PJM shall supply Confidential Information to the Authorized Person in response\nto any Information Request within five (5) business days of the receipt of the Information Request, to the extent that the requested\nConfidential Information can be made available within such period; provided however, that in no event shall Confidential\nInformation be released prior to the end of the fourth (4th) business day without the express consent of the Affected Member. To\nthe extent that PJM can not reasonably prepare and deliver the requested Confidential Information within such five (5) day\nperiod, PJM shall, within such period, provide the Authorized Person with a written schedule for the provision of such remaining\nConfidential Information. Upon providing Confidential Information to the Authorized Person, PJM shall either provide a copy of\nthe Confidential Information to the Affected Member(s), or provide a listing of the Confidential Information disclosed; provided,\nhowever, that PJM shall not reveal any Member’s Confidential Information to any other Member.\n3.3.2 Notwithstanding section 3.3.1, above, should PJM or an Affected Member object to an Information Request or any portion\nthereof, PJM or the Affected Member may, within four (4) business days following PJM’s receipt of the Information Request,\nrequest, in writing (which shall include electronic communication) addressed to the State Commission with a copy to either the\nAffected Party or PJM, as the case may be, a conference with the State Commission or the State Commission’s authorized\ndesignee to resolve differences concerning the scope or timing of the Information Request; provided, however, nothing herein\nshall require the State Commission to participate in any conference. Any party to the conference may seek assistance from FERC\nstaff in resolution of the dispute. Should such conference be refused by any participant, or not resolve the dispute, then PJM, the\nAffected Member or the State Commission may initiate appropriate legal action at FERC within three (3) business days following\nreceipt of written notice from any conference participant terminating such conference. Any complaints filed at FERC objecting to\na particular Information Request shall be designated by the party as a “fast track” complaint and each party shall bear its own\ncosts in connection with such FERC proceeding. If no FERC proceeding regarding the Information Request is commenced by\nPJM, the Affected Member or the State Commission within such three day period, PJM shall utilize its best efforts to respond to\nthe Information Request promptly.\n3.3.3 To the extent that a response to any Information Request requires disclosure of Confidential Information of two or more Affected\nParties, PJM shall, to the extent possible, segregate such information and respond to the Information Request separately for each\nAffected Member.\nPJM Interconnection, L.L.C.\nOriginal Sheet No. 197G\nThird Revised Rate Schedule FERC No. 24\n4. Remedies.\n4.1 Material Breach. The Authorized Person agrees that release of Confidential Information to persons not authorized to receive it\nconstitutes a breach of this Agreement and may cause irreparable harm to PJM and/or the Affected Member. In the event of a breach of\nthis Agreement by the Authorized Person, PJM shall terminate this Agreement upon written notice to the Authorized Person and his or\nher Authorized Commission, and all rights of the Authorized Person hereunder shall thereupon terminate; provided, however, that PJM\nmay restore an individual’s status as an Authorized Person after consulting with the Affected Member and to the extent that: (i) PJM\ndetermines that the disclosure was not due to the intentional, reckless or negligent action or omission of the Authorized Person; (ii) there\nwere no harm or damages suffered by the Affected Member; or (iii) similar good cause shown. Any appeal of PJM’s actions under this\nsection shall be to FERC.\n4.2 Judicial Recourse. In the event of any breach of this Agreement, PJM and/or the Affected Member shall have the right to seek and\nobtain at least the following types of relief: (a) an order from FERC requiring any breach to cease and preventing any future breaches;\n(b) temporary, preliminary, and/or permanent injunctive relief with respect to any breach; and (c) the immediate return of all Confidential\nInformation to PJM. The Authorized Person expressly agrees that in the event of a breach of this Agreement, any relief sought properly\nincludes, but shall not be limited to, the immediate return of all Confidential Information to PJM.\n4.3 Waiver of Monetary Damages. No Authorized Person shall have responsibility or liability whatsoever under this Agreement for any\nand all liabilities, losses, damages, demands, fines, monetary judgments, penalties, costs and expenses caused by, resulting from, or\narising out of, or in connection with, the release of Confidential Information to persons not authorized to receive it, provided that such\nAuthorized Person is an employee or member of an Authorized Commission at the time of such unauthorized release. Nothing in this\nSection 4.3 is intended to limit the liability of any person who is not an employee of or a member of an Authorized Commission at the\ntime of such unauthorized release for any and all economic losses, damages, demands, fines, monetary judgments, penalties, costs and\nexpenses caused by, resulting from, or arising out of or in connection with such unauthorized release.\n5. Jurisdiction. The Parties agree that (i) any dispute or conflict requesting the relief in sections 4.1, and 4.2(a) above shall be submitted to\nFERC for hearing and resolution; (ii) any dispute or conflict requesting the relief in section 4.2(c) above may be submitted to FERC or any\ncourt of competent jurisdiction for hearing and resolution; and (iii) jurisdiction over all other actions and requested relief shall lie in any court\nof competent jurisdiction.\nPJM Interconnection, L.L.C.\nSubstitute Original Sheet No. 197H\nThird Revised Rate Schedule FERC No. 24\nSuperseding Original Sheet No. 197H\n6. Notices. All notices required pursuant to the terms of this Agreement shall be in writing, and served upon the following individuals in person,\nor at the following addresses or email addresses:\nIf to the Authorized Person:\n_ ___ ___ ___ ___ ___ ____ ___\n_ ___ ___ ___ ___ ___ ____ ___\n_ ___ ___ ___ ___ ___ ____ ___\n_ ___ ___ ___ ___ ___ ____ ___\n(email address)\nwith a copy to\n_ ___ ___ ___ ___ ___ ____ ___\n_ ___ ___ ___ ___ ___ ____ ___\n_ ___ ___ ___ ___ ___ ____ ___\n_ ___ ___ ___ ___ ___ ____ ___\n(email address)\nIf to PJM:\nMarket Monitor\nPJM Interconnection, LLC\n955 Jefferson Avenue\nValley Forge Corporate Center\nNorristown, PA 19403\nbowrij@pjm.com\nwith a copy to\nGeneral Counsel\n955 Jefferson Avenue\nValley Forge Corporate Center\nNorristown, PA 19403\nhagelj@pjm.com\nPJM Interconnection, L.L.C.\nSubstitute Original Sheet No. 197I\nThird Revised Rate Schedule FERC No. 24\nSuperseding Original Sheet No. 197I\n7. Severability and Survival. In the event any provision of this Agreement is determined to be unenforceable as a matter of law, the Parties\nintend that all other provisions of this Agreement remain in full force and effect in accordance with their terms. In the event of conflicts\nbetween the terms of this Agreement and the Operating Agreement, the terms of the Operating Agreement shall in all events be controlling.\nThe Authorized Person acknowledges that any and all obligations of the Authorized Person hereunder shall survive the severance or\ntermination of any employment or retention relationship between the Authorized Person and their respective Authorized Commission.\n8. Representations. The undersigned represent and warrant that they are vested with all necessary corporate, statutory and/or regulatory\nauthority to execute and deliver this Agreement, and to perform all of the obligations and duties contained herein.\n9. Third Party Beneficiaries. The Parties specifically agree and acknowledge that each Member as defined in the Operating Agreement is an\nintended third party beneficiary of this Agreement entitled to enforce its provisions.\n10. Counterparts. This Agreement may be executed in counterparts and all such counterparts together shall be deemed to constitute a single\nexecuted original.\n11. Amendment. This Agreement may not be amended except by written agreement executed by authorized representatives of the Parties.\nPJM INTERCONNECTION, L.L .C.\nAUTHORIZED PERSON\nBy:\nBy:\nName:\nName:\nTitle:\nTitle:
+294941062474a6d42bdb6b9d4ab4545f.pdf	effective_date jurisdiction party term	EX-99.(D)(5) 11 d651999dex99d5.htm EX-(D)(5)\nExhibit (d)(5)\nEXECUTION VERSION\nCONFIDENTIAL\n3-WAY NON-DISCLOSURE AGREEMENT\nThis 3-WAY NON-DISCLOSURE AGREEMENT is made and entered into as of this 15th day of November, 2018 (the “Effective Date”), among\nTESARO, Inc. (“TESARO”), located at 1000 Winter Street, Waltham, MA 02451, GlaxoSmithKline LLC, located at 1250 South Collegeville Road,\nCollegeville, PA 19426 (“GSK”), and Ajinomoto Althea, Inc.DBA Ajinomoto Bio-Pharma Services(“ABPS”), located at 11040 Roselle Street, San\nDiego, CA 92121 (“APBS”). TESARO, GSK and Althea may be referred to, collectively, in this Agreement as the “Parties”, and, individually, as a\n“Party”.\n1. Purpose. TESARO and GSK are in discussions concerning a potential co-development collaboration for one or more of TESARO’s biologic\nproduct candidates, for which Althea performs sterile cGMP fill/finish services, and in connection therewith, GSK has requested to engage in\nbackground due diligence with Althea in regard to such sterile cGMP fill/finish services (the “Stated Purpose”). In connection with such due\ndiligence discussions, the Disclosing Party, may disclose or make available to the Receiving Party certain information which the Disclosing Party\ndesires the Receiving Party treat as confidential.\n2. Definition. “Confidential Information” means all information and materials of a confidential, secret or proprietary nature disclosed by or on\nbehalf of one Party (a “Disclosing Party”) to another Party (a “Receiving Party”), either directly or indirectly, in writing, orally or by inspection\nof tangible objects, including, without limitation, information and materials regarding technology, products, product candidates, research and\ndevelopment activities, results, compound designs or structures, manufacturing or other processes or methods, know-how, inventions or other\nintellectual property, the existence or content of licenses, the existence, status or content of licensing or collaboration negotiations, other\nagreements with third parties, information regarding facilities and financial and other business information, in each case whether or not identified\nor marked as “confidential” and including all documents, presentations, information, reports, materials, evaluations and copies to the extent\nincorporating or generated from any of the foregoing. Disclosing Party’s Confidential Information may also include information obtained by\nDisclosing Party from its collaborators, customers, suppliers, vendors and other third parties who have entrusted their confidential information to\nDisclosing Party.\nConfidential Information shall not, however, include any information which the Receiving Party can establish by written record: (i) was publicly\nknown and available in the public domain prior to the time of disclosure by Disclosing Party to Receiving Party; (ii) becomes publicly known and\navailable after disclosure by Disclosing Party to Receiving Party through no action or inaction of Receiving Party or any of Receiving Party’s\nagents or employees; (iii) was already in possession of Receiving Party, as evidenced by Receiving Party’s contemporaneous records, immediately\nprior to the time of disclosure to Receiving Party by Disclosing Party; (iv) is obtained by Receiving Party from a third party who has a right to\ndisclose such information free of any obligation of confidentiality and who did not derive the information from Disclosing Party; and (v) is\nindependently developed by Receiving Party without use of, or reference to, information provided by Disclosing Party as evidenced by Receiving\nParty’s contemporaneous records and other than under an agreement with the Disclosing Party.\n3. Non-Use and Non-Disclosure of Confidential Information. Receiving Party agrees not to use any Confidential Information of Disclosing Party\nfor any purpose other than the Stated Purpose or as otherwise approved in writing by Disclosing Party. Receiving Party agrees not to disclose any\nConfidential Information of Disclosing Party to any third party or to Receiving Party’s employees, except to those officers, employees, affiliates,\nagents or consultants (“Representatives”) of Receiving Party who have a specific need to know such information in\nTESARO 3-WAY NDA V1\nPage1of4\nEXECUTION VERSION\nCONFIDENTIAL\norder to advise Receiving Party for the Stated Purpose and who are bound by written obligations of confidentiality and restrictions on use that\ncover such Confidential Information and are at least as stringent as those set forth in this Agreement.\n4. Disclosure Required by Law. Notwithstanding anything in this Agreement to the contrary, Receiving Party may disclose Confidential\nInformation of Disclosing Party to the extent required by applicable law, including pursuant to a subpoena or other court or administrative order,\nprovided that Receiving Party gives Disclosing Party prompt written notice of such requirement prior to such disclosure and cooperates with\nDisclosing Party’s efforts to limit the scope of the information to be provided or to obtain an order protecting the information from public\ndisclosure.\n5. Maintenance of Confidentiality. Receiving Party agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure\nand unauthorized use of the Confidential Information of the Disclosing Party but such measures shall be no less than a reasonable degree of care.\nWithout the prior written consent of Disclosing Party, Receiving Party shall not disclose to any person, other that its Represenatives, (i) that any\ninvestigations, discussions or negotiations are taking place concering the Stated Purpose, (ii) that Receiving Party or its Representatives have\nrequested or received any Confidential Information, or (iii) any of the terms, conditions or other facts with respect to the Stated Purpose or such\ninvestigations, discussons or negotiations, including the status thereof.\n6. No Obligation. Disclosing Party may at any time cease to make further disclosure of its Confidential Information, and Receiving Party may refuse\nto accept further disclosure of Disclosing Party’s Confidential Information. Nothing in this Agreement shall obligate either Party to proceed with\nany transaction between them, and each Party reserves the right, in such Party’s sole discretion, to terminate the discussions contemplated by this\nAgreement concerning the Stated Purpose.\n7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. NEITHER PARTY MAKES ANY WARRANTIES,\nEXPRESS, IMPLIED OR OTHERWISE, TO THE OTHER PARTY REGARDING THE ACCURACY, COMPLETENESS OR\nPERFORMANCE OF CONFIDENTIAL INFORMATION DISCLOSED UNDER THIS AGREEMENT EXCEPT THAT IT HAS THE RIGHT\nTO DISCLOSE SUCH CONFIDENTIAL INFORMATION.\n8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed or\nprovided to Receiving Party by or on behalf of Disclosing Party, and all copies of such Confidential Information, which are in the possession of\nReceiving Party, shall be and remain the property of Disclosing Party and shall be promptly returned to Disclosing Party or destroyed, as requested\nand directed in writing by Disclosing Party, and any memoranda, notes, reports and the like generated by Receiving Party with respect to such\nConfidential Information shall be destroyed upon Disclosing Party’s written request with confirmation of such destruction provided to Disclosing\nParty; provided that (i) Receiving Party may retain one copy of such Confidential Information solely for purposes of ensuring compliance with\nthis Agreement and (ii) Receiving Party shall not be obligated to return or destroy automatically created electronic copies stored on system\nback-up tapes.\n9. No Licenses. Nothing in this Agreement is intended to grant any rights or license to Receiving Party under any patent, copyright, trade secret or\nother intellectual property rights of Disclosing Party, nor shall this Agreement or the disclosure of Confidential Information be deemed to grant to\nReceiving Party any rights or licenses in or to the Confidential Information of Disclosing Party except as expressly set forth in this Agreement.\nTESARO 3-WAY NDA V1\nPage2of4\nEXECUTION VERSION\nCONFIDENTIAL\n10. Independent Activities. Disclosing Party understands and acknowledges that prior to the Effective Date, Receiving Party may have in the past, or\nis currently, either internally or with a third party, engaged in research, development and commercialization activities relating to the subject matter\nof Disclosing Party’s Confidential Information. Accordingly, Disclosing Party acknowledges and agrees that nothing in this Agreement will be\nconstrued by implication or otherwise as preventing Receiving Party, during the term of this Agreement or thereafter, from (i) either internally or\nwith a third party, engaging in research, development and commercialization activities relating to the subject matter of Disclosing Party’s\nConfidential Information, and (ii) evaluating such programs, compounds and capabilities of third parties relating to the subject matter of\nDisclosing Party’s Confidential Information, provided, that in each case of (i) and (ii), Receiving Party does not reference and does not use\nDisclosing Party’s Confidential Information disclosed under this Agreement in connection therewith.\n11. Term. This Agreement shall continue until the second anniversary of the Effective Date. Any Party may terminate this Agreement by providing\nwritten notice to the other Parties; provided, however, that the obligations of Receiving Party under this Agreement with regard to non-disclosure\nand restrictions on use of Confidential Information disclosed prior to such early termination shall not be altered by any such early termination and\nshall continue in effect for a period ending five (5) years after such expiration or termination.\n12. Miscellaneous. This Agreement shall bind and inure to the benefit of the Parties hereto and their successors and permitted assignees. This\nAgreement may not be assigned by either Party without the prior written consent of the other Party, except that a Party may assign this Agreement\nin connection with the sale of all, or substantially all, of the assets to which this Agreement relates. This Agreement shall be governed by the laws\nof the State of Delaware, without reference to conflict of laws principles. Each Party agrees that it shall bring any action or proceeding in respect\nto any claim arising out of or related to this Agreement exclusively in the courts of the State of Delaware and the Federal Courts of the United\nStates of America located in the State of Delaware and irrevocably submits to the exclusive jurisdiction of such courts. This document contains the\nentire agreement among the Parties with respect to the subject matter hereof (it being agreed and acknowledged by the Parties that each of the\nexisting Non-Disclosure Agreements between TESARO and GSK (on the one hand), and TESARO and ABPS (on the other hand) shall remain in\nfull force and effect without alteration by this Agreement). Any failure to enforce any provision of this Agreement shall not constitute a waiver of\nsuch provision or of any other provision. Disclosing Party shall have, in addition to any remedies available at law, the right to seek equitable relief\nto enforce this Agreement without the need for a bond or to prove harm. This Agreement may not be amended, nor any obligation waived, except\nby a written document signed by each of the Parties.\n[Signatures on next page]\nTESARO 3-WAY NDA V1\nPage3of4\nEXECUTION VERSION\nCONFIDENTIAL\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date and year written above.\nTESARO, INC.\nGLAXOSMITHKLINE LLC\nBy: /s/ William Aitchison\nBy: /s/ Walter CP Plunkett\nName: William Aitchison\nName: Walter CP Plunkett\nTitle: SVP, Tech BPS\nTitle: Director Scientific Licensing\nAJINOMOTO ALTHEA, INC. DBA\nAjinomoto Bio-Pharma Services\nBy: Digitally signed by Craig W. Logan\nDate: 2018.11.15 10:54:22-08’00’\nName: Craig W. Logan\nTitle: VP Finance & CFO\nTESARO 3-WAY NDA V1\nPage4of4	EX-99.(D)(5) 11 d651999dex99d5.htm EX-(D)(5) Exhibit (d)(5)\nEXECUTION VERSION\nCONFIDENTIAL\n3-WAY NON-DISCLOSURE AGREEMENT\nThis 3-WAY NON-DISCLOSURE AGREEMENT is made and entered into as of this 15th day of November, 2018 (the “Effective Date”), among\nTESARO, Inc. (“TESARO”), located at 1000 Winter Street, Waltham, MA 02451, GlaxoSmithKline LLC, located at 1250 South Collegeville Road, Collegeville, PA 19426 (“GSK”), and Ajinomoto Althea, Inc. DBA Ajinomoto Bio-Pharma Services(“ABPS”), located at 11040 Roselle Street, San Diego, CA 92121 (“APBS”). TESARO, GSK and Althea may be referred to, collectively, in this Agreement as the “Parties”, and, individually, as a “Pal"ty”, 1. Purpose. TESARO and GSK are in discussions concerning a potential co-development collaboration for one or more of TESARO’s biologic\nproduct candidates, for which Althea performs sterile cGMP fill/finish services, and in connection therewith, GSK has requested to engage in\nbackground due diligence with Althea in regard to such sterile cGMP fill/finish services (the “Stated Purpose”). In connection with such due\ndiligence discussions, the Disclosing Party, may disclose or make available to the Receiving Party certain information which the Disclosing Party\ndesires the Receiving Party treat as confidential.\nDefinition. “Confidential Information” means all information and materials of a confidential, secret or proprietary nature disclosed by or on\nbehalf of one Party (a “Disclosing Party”) to another Party (a “Receiving Party”), either directly or indirectly, in writing, orally or by inspection\nof tangible objects, including, without limitation, information and materials regarding technology, products, product candidates, research and\ndevelopment activities, results, compound designs or structures, manufacturing or other processes or methods, know-how, inventions or other\nintellectual property, the existence or content of licenses, the existence, status or content of licensing or collaboration negotiations, other\nagreements with third parties, information regarding facilities and financial and other business information, in each case whether or not identified\nor marked as “confidential” and including all documents, presentations, information, reports, materials, evaluations and copies to the extent\nincorporating or generated from any of the foregoing. Disclosing Party’s Confidential Information may also include information obtained by\nDisclosing Party from its collaborators, customers, suppliers, vendors and other third parties who have entrusted their confidential information to\nDisclosing Party.\nConfidential Information shall not, however, include any information which the Receiving Party can establish by written record: (i) was publicly\nknown and available in the public domain prior to the time of disclosure by Disclosing Party to Receiving Party; (ii) becomes publicly known and\navailable after disclosure by Disclosing Party to Receiving Party through no action or inaction of Receiving Party or any of Receiving Party’s\nagents or employees; (iii) was already in possession of Receiving Party, as evidenced by Receiving Party’s contemporaneous records, immediately\nprior to the time of disclosure to Receiving Party by Disclosing Party; (iv) is obtained by Receiving Party from a third party who has a right to\ndisclose such information free of any obligation of confidentiality and who did not derive the information from Disclosing Party; and (v) is\nindependently developed by Receiving Party without use of, or reference to, information provided by Disclosing Party as evidenced by Receiving\nParty’s contemporaneous records and other than under an agreement with the Disclosing Party.\nNon-Use and Non-Disclosure of Confidential Information. Receiving Party agrees not to use any Confidential Information of Disclosing Party\nfor any purpose other than the Stated Purpose or as otherwise approved in writing by Disclosing Party. Receiving Party agrees not to disclose any\nConfidential Information of Disclosing Party to any third party or to Receiving Party’s employees, except to those officers, employees, affiliates,\nagents or consultants (“Representatives”) of Receiving Party who have a specific need to know such information in\nTESARO 3-WAY NDA V1 Page 1 of 4\fEXECUTION VERSION\nCONFIDENTIAL\norder to advise Receiving Party for the Stated Purpose and who are bound by written obligations of confidentiality and restrictions on use that\ncover such Confidential Information and are at least as stringent as those set forth in this Agreement.\n4. Disclosure Required by Law. Notwithstanding anything in this Agreement to the contrary, Receiving Party may disclose Confidential\nInformation of Disclosing Party to the extent required by applicable law, including pursuant to a subpoena or other court or administrative order,\nprovided that Receiving Party gives Disclosing Party prompt written notice of such requirement prior to such disclosure and cooperates with\nDisclosing Party’s efforts to limit the scope of the information to be provided or to obtain an order protecting the information from public\ndisclosure.\n5. Maintenance of Confidentiality. Receiving Party agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure\nand unauthorized use of the Confidential Information of the Disclosing Party but such measures shall be no less than a reasonable degree of care.\nWithout the prior written consent of Disclosing Party, Receiving Party shall not disclose to any person, other that its Represenatives, (i) that any\ninvestigations, discussions or negotiations are taking place concering the Stated Purpose, (ii) that Receiving Party or its Representatives have\nrequested or received any Confidential Information, or (iii) any of the terms, conditions or other facts with respect to the Stated Purpose or such\ninvestigations, discussons or negotiations, including the status thereof.\n6.  No Obligation. Disclosing Party may at any time cease to make further disclosure of its Confidential Information, and Receiving Party may refuse\nto accept further disclosure of Disclosing Party’s Confidential Information. Nothing in this Agreement shall obligate either Party to proceed with\nany transaction between them, and each Party reserves the right, in such Party’s sole discretion, to terminate the discussions contemplated by this\nAgreement concerning the Stated Purpose.\n7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. NEITHER PARTY MAKES ANY WARRANTIES,\nEXPRESS, IMPLIED OR OTHERWISE, TO THE OTHER PARTY REGARDING THE ACCURACY, COMPLETENESS OR\nPERFORMANCE OF CONFIDENTIAL INFORMATION DISCLOSED UNDER THIS AGREEMENT EXCEPT THAT IT HAS THE RIGHT\nTO DISCLOSE SUCH CONFIDENTIAL INFORMATION.\n8.  Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed or\nprovided to Receiving Party by or on behalf of Disclosing Party, and all copies of such Confidential Information, which are in the possession of\nReceiving Party, shall be and remain the property of Disclosing Party and shall be promptly returned to Disclosing Party or destroyed, as requested\nand directed in writing by Disclosing Party, and any memoranda, notes, reports and the like generated by Receiving Party with respect to such\nConfidential Information shall be destroyed upon Disclosing Party’s written request with confirmation of such destruction provided to Disclosing\nParty; provided that (i) Receiving Party may retain one copy of such Confidential Information solely for purposes of ensuring compliance with\nthis Agreement and (ii) Receiving Party shall not be obligated to return or destroy automatically created electronic copies stored on system\nback-up tapes.\n9.  No Licenses. Nothing in this Agreement is intended to grant any rights or license to Receiving Party under any patent, copyright, trade secret or\nother intellectual property rights of Disclosing Party, nor shall this Agreement or the disclosure of Confidential Information be deemed to grant to\nReceiving Party any rights or licenses in or to the Confidential Information of Disclosing Party except as expressly set forth in this Agreement.\nTESARO 3-WAY NDA V1 Page 2 of 4\nEXECUTION VERSION\nCONFIDENTIAL\n10. Independent Activities. Disclosing Party understands and acknowledges that prior to the Effective Date, Receiving Party may have in the past, or\nis currently, either internally or with a third party, engaged in research, development and commercialization activities relating to the subject matter\nof Disclosing Party’s Confidential Information. Accordingly, Disclosing Party acknowledges and agrees that nothing in this Agreement will be\nconstrued by implication or otherwise as preventing Receiving Party, during the term of this Agreement or thereafter, from (i) either internally or\nwith a third party, engaging in research, development and commercialization activities relating to the subject matter of Disclosing Party’s\nConfidential Information, and (ii) evaluating such programs, compounds and capabilities of third parties relating to the subject matter of\nDisclosing Party’s Confidential Information, provided, that in each case of (i) and (ii), Receiving Party does not reference and does not use\nDisclosing Party’s Confidential Information disclosed under this Agreement in connection therewith.\n11. Term. This Agreement shall continue until the second anniversary of the Effective Date. Any Party may terminate this Agreement by providing\nwritten notice to the other Parties; provided, however, that the obligations of Receiving Party under this Agreement with regard to non-disclosure\nand restrictions on use of Confidential Information disclosed prior to such early termination shall not be altered by any such early termination and\nshall continue in effect for a period ending five (5) years after such expiration or termination.\n12. Miscellaneous. This Agreement shall bind and inure to the benefit of the Parties hereto and their successors and permitted assignees. This\nAgreement may not be assigned by either Party without the prior written consent of the other Party, except that a Party may assign this Agreement\nin connection with the sale of all, or substantially all, of the assets to which this Agreement relates. This Agreement shall be governed by the laws\nof the State of Delaware, without reference to conflict of laws principles. Each Party agrees that it shall bring any action or proceeding in respect\nto any claim arising out of or related to this Agreement exclusively in the courts of the State of Delaware and the Federal Courts of the United\nStates of America located in the State of Delaware and irrevocably submits to the exclusive jurisdiction of such courts. This document contains the\nentire agreement among the Parties with respect to the subject matter hereof (it being agreed and acknowledged by the Parties that each of the\nexisting Non-Disclosure Agreements between TESARO and GSK (on the one hand), and TESARO and ABPS (on the other hand) shall remain in\nfull force and effect without alteration by this Agreement). Any failure to enforce any provision of this Agreement shall not constitute a waiver of\nsuch provision or of any other provision. Disclosing Party shall have, in addition to any remedies available at law, the right to seek equitable relief\nto enforce this Agreement without the need for a bond or to prove harm. This Agreement may not be amended, nor any obligation waived, except\nby a written document signed by each of the Parties.\n[Signatures on next page]\nTESARO 3-WAY NDA V1 Page 3 of 4\nEXECUTION VERSION\nCONFIDENTIAL\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date and year written above. TESARO, INC.\nBy: /s/ William Aitchison\nName: William Aitchison\nTitle:  SVP, Tech BPS\nAJINOMOTO ALTHEA, INC. DBA\nAjinomoto Bio-Pharma Services\nBy: Digitally signed by Craig W. Logan\nDate: 2018.11.15 10:54:22-08°00°\nName: Craig W. Logan\nTitle: VP Finance & CFO\nTESARO 3-WAY NDA V1\nGLAXOSMITHKLINE LLC\nBy: /s/ Walter CP Plunkett\nName: Walter CP Plunkett\nTitle: Director Scientific Licensing\nPage 4 of 4	EX-99.(D)(5) 11 1651999dex99d5.htm EX-(D)(5)\nExhibit (d)(5)\nEXECUTION VERSION\nCONFIDENTIAL\n3-WAY NON-DISCLOSURE AGREEMENT\nThis 3-WAY NON-DISCLOSURE AGREEMENT is made and entered into as of this 15th day of November, 2018 (the "Effective Date"), among\nTESARO, Inc. ("TESARO"), located at 1000 Winter Street, Waltham, MA 02451, GlaxoSmithKline LLC, located at 1250 South Collegeville Road,\nCollegeville, PA 19426 ("GSK"), and Ajinomoto Althea, Inc.DBA Ajinomoto Bio-Pharma Services("AB located at 11040 Roselle Street, San\nDiego, CA 92121 ("APBS"). TESARO, GSK and Althea may be referred to, collectively, in this Agreement as the "Parties", and, individually, as a\n"Party"\n1.\nPurpose. TESARO and GSK are in discussions concerning a potential co-development collaboration for one or more of TESARO'S biologic\nproduct candidates, for which Althea performs sterile cGMP fill/finish services, and in connection therewith, GSK has requested to engage in\nbackground due diligence with Althea in regard to such sterile cGMP fill/finish services (the "Stated Purpose"). In connection with such due\ndiligence discussions, the Disclosing Party, may disclose or make available to the Receiving Party certain information which the Disclosing Party\ndesires the Receiving Party treat as confidential.\n2.\nDefinition. "Confidential Information" means all information and materials of a confidential, secret or proprietary nature disclosed by or on\nbehalf\nof\none\nParty\n(a\n"Disclosing\nParty")\nto\nanother\nParty\n(a\n"Receiving\nParty"),\neither\ndirectly\nor\nindirectly,\nin\nwriting,\norally\nor\nby\ninspection\nof tangible objects, including, without limitation, information and materials regarding technology, products, product candidates, research and\ndevelopment activities, results, compound designs or structures, manufacturing or other processes or methods, know-how, inventions or other\nintellectual property, the existence or content of licenses, the existence, status or content of licensing or collaboration negotiations, other\nagreements with third parties, information regarding facilities and financial and other business information, in each case whether or not identified\nor marked as "confidential" and including all documents, presentations, information, reports, materials, evaluations and copies to the extent\nincorporating or generated from any of the foregoing. Disclosing Party's Confidential Information may also include information obtained by\nDisclosing Party from its collaborators, customers, suppliers, vendors and other third parties who have entrusted their confidential information to\nDisclosing Party.\nConfidential Information shall not, however, include any information which the Receiving Party can establish by written record: (i) was publicly\nknown and available in the public domain prior to the time of disclosure by Disclosing Party to Receiving Party; (ii) becomes publicly known and\navailable after disclosure by Disclosing Party to Receiving Party through no action or inaction of Receiving Party or any of Receiving Party's\nagents or employees; (iii) was already in possession of Receiving Party, as evidenced by Receiving Party's contemporaneous records, immediately\nprior to the time of disclosure to Receiving Party by Disclosing Party; (iv) is obtained by Receiving Party from a third party who has a right to\ndisclose such information free of any obligation of confidentiality and who did not derive the information from Disclosing Party; and (v) is\nindependently developed by Receiving Party without use of, or reference to, information provided by Disclosing Party as evidenced by Receiving\nParty's contemporaneous records and other than under an agreement with the Disclosing Party.\n3.\nNon-Use\nand\nNon-Disclosure\nof\nConfidential\nInformation.\nReceiving\nParty\nagrees\nnot\nto\nuse\nany\nConfidential\nInformation\nof\nDisclosing\nParty\nfor any purpose other than the Stated Purpose or as otherwise approved in writing by Disclosing Party. Receiving Party agrees not to disclose any\nConfidential Information of Disclosing Party to any third party or to Receiving Party's employees, except to those officers, employees, affiliates,\nagents or consultants ("Representatives") of Receiving Party who have a specific need to know such information in\nTESARO 3-WAY NDA V1\nPage 1 of 4\nEXECUTION VERSION\nCONFIDENTIAL\norder to advise Receiving Party for the Stated Purpose and who are bound by written obligations of confidentiality and restrictions on use that\ncover such Confidential Information and are at least as stringent as those set forth in this Agreement.\n4.\nDisclosure Required by Law. Notwithstanding anything in this Agreement to the contrary, Receiving Party may disclose Confidential\nInformation of Disclosing Party to the extent required by applicable law, including pursuant to a subpoena or other court or administrative order,\nprovided that Receiving Party gives Disclosing Party prompt written notice of such requirement prior to such disclosure and cooperates with\nDisclosing Party's efforts to limit the scope of the information to be provided or to obtain an order protecting the information from public\ndisclosure.\n5.\nMaintenance of Confidentiality.. Receiving Party agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure\nand unauthorized use of the Confidential Information of the Disclosing Party but such measures shall be no less than a reasonable degree of care.\nWithout the prior written consent of Disclosing Party, Receiving Party shall not disclose to any person, other that its Represenatives, (i) that any\ninvestigations, discussions or negotiations are taking place concering the Stated Purpose, (ii) that Receiving Party or its Representatives have\nrequested or received any Confidential Information, or (iii) any of the terms, conditions or other facts with respect to the Stated Purpose or such\ninvestigations, discussons or negotiations, including the status thereof.\n6.\nNo Obligation. Disclosing Party may at any time cease to make further disclosure of its Confidential Information, and Receiving Party may refuse\nto accept further disclosure of Disclosing Party's Confidential Information. Nothing in this Agreement shall obligate either Party to proceed with\nany transaction between them, and each Party reserves the right, in such Party's sole discretion, to terminate the discussions contemplated by this\nAgreement concerning the Stated Purpose.\n7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS". NEITHER PARTY MAKES ANY WARRANTIES,\nEXPRESS, IMPLIED OR OTHERWISE, TO THE OTHER PARTY REGARDING THE ACCURACY, COMPLETENESS OR\nPERFORMANCE OF CONFIDENTIAL INFORMATION DISCLOSED UNDER THIS AGREEMENT EXCEPT THAT IT HAS THE RIGHT\nTO DISCLOSE SUCH CONFIDENTIAL INFORMATION.\n8.\nReturn of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed or\nprovided to Receiving Party by or on behalf of Disclosing Party, and all copies of such Confidential Information, which are in the possession of\nReceiving Party, shall be and remain the property of Disclosing Party and shall be promptly returned to Disclosing Party or destroyed, as requested\nand directed in writing by Disclosing Party, and any memoranda, notes, reports and the like generated by Receiving Party with respect to such\nConfidential Information shall be destroyed upon Disclosing Party's written request with confirmation of such destruction provided to Disclosing\nParty; provided that (i) Receiving Party may retain one copy of such Confidential Information solely for purposes of ensuring compliance with\nthis Agreement and (ii) Receiving Party shall not be obligated to return or destroy automatically created electronic copies stored on system\nback-up tapes.\n9.\nNo\nLicenses. Nothing in this Agreement is intended to grant any rights or license to Receiving Party under any patent, copyright,\ntrade\nsecret\nor\nother intellectual property rights of Disclosing Party, nor shall this Agreement or the disclosure of Confidential Information be deemed to grant to\nReceiving Party any rights or licenses in or to the Confidential Information of Disclosing Party except as expressly set forth in this Agreement.\nTESARO 3-WAY NDA V1\nPage 2 of 4\nEXECUTION VERSION\nCONFIDENTIAL\n10. Independent Activities. Disclosing Party understands and acknowledges that prior to the Effective Date, Receiving Party may have in the past, or\nis currently, either internally or with a third party, engaged in research, development and commercialization activities relating to the subject matter\nof\nDisclosing Party's Confidential Information. Accordingly, Disclosing Party acknowledges and agrees that nothing in this Agreement will be\nconstrued by implication or otherwise as preventing Receiving Party, during the term of this Agreement or thereafter, from (i) either internally or\nwith a third party, engaging in research, development and commercialization activities relating to the subject matter of Disclosing Party's\nConfidential Information, and (ii) evaluating such programs, compounds and capabilities of third parties relating to the subject matter of\nDisclosing Party's Confidential Information, provided, that in each case of (i) and (ii), Receiving Party does not reference and does not use\nDisclosing Party's Confidential Information disclosed under this Agreement in connection therewith.\n11.\nTerm. This Agreement shall continue until the second anniversary of the Effective Date. Any Party may terminate this Agreement by providing\nwritten notice to the other Parties; provided, however, that the obligations of Receiving Party under this Agreement with regard to non-disclosure\nand restrictions on use of Confidential Information disclosed prior to such early termination shall not be altered by any such early termination and\nshall continue in effect for a period ending five (5) years after such expiration or termination.\n12. Miscellaneous. This Agreement shall bind and inure to the benefit of the Parties hereto and their successors and permitted assignees. This\nAgreement may not be assigned by either Party without the prior written consent of the other Party, except that a Party may assign this Agreement\nin connection with the sale of all, or substantially all, of the assets to which this Agreement relates. This Agreement shall be governed by the laws\nof the State of Delaware, without reference to conflict of laws principles. Each Party agrees that it shall bring any action or proceeding in respect\nto any claim arising out of or related to this Agreement exclusively in the courts of the State of Delaware and the Federal Courts of the United\nStates of America located in the State of Delaware and irrevocably submits to the exclusive jurisdiction of such courts. This document contains\nthe\nentire agreement among the Parties with respect to the subject matter hereof (it being agreed and acknowledged by the Parties that each of the\nexisting Non-Disclosure Agreements between TESARO and GSK (on the one hand), and TESARO and ABPS (on the other hand) shall remain in\nfull force and effect without alteration by this Agreement). Any failure to enforce any provision of this Agreement shall not constitute a waiver\nof\nsuch provision or of any other provision Disclosing Party shall have, in addition to any remedies available at law, the right to seek equitable relief\nto enforce this Agreement without the need for a bond or to prove harm. This Agreement may not be amended, nor any obligation waived, except\nby a written document signed by each of the Parties.\n[Signatures on next page]\nTESARO 3-WAY NDA V1\nPage 3 of 4\nEXECUTION VERSION\nCONFIDENTIAL\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date and year written above.\nTESARO, INC.\nGLAXOSMITHKLINE LLC\nBy:\n/s/ William Aitchison\nBy:\n/s/ Walter CP Plunkett\nName: William Aitchison\nName: Walter CP Plunkett\nTitle: SVP, Tech BPS\nTitle: Director Scientific Licensing\nAJINOMOTO ALTHEA, INC. DBA\nAjinomoto Bio-Pharma Services\nBy:\nDigitally signed by Craig W. Logan\nDate: 2018.11.15 10:54:22-08'00'\nName: Craig W. Logan\nTitle: VP Finance & CFO\nTESARO 3-WAY NDA V1\nPage 4 of 4	EX-99.(D)(5) 11 d651999dex99d5.htm EX-(D)(5)\nExhibit (d)(5)\nEXECUTION VERSION\nCONFIDENTIAL\n3-WAY NON-DISCLOSURE AGREEMENT\nThis 3-WAY NON-DISCLOSURE AGREEMENT is made and entered into as of this 15th day of November, 2018 (the “Effective Date”), among\nTESARO, Inc. (“TESARO”), located at 1000 Winter Street, Waltham, MA 02451, GlaxoSmithKline LLC, located at 1250 South Collegeville Road,\nCollegeville, PA 19426 (“GSK”), and Ajinomoto Althea, Inc.DBA Ajinomoto Bio-Pharma Services(“ABPS”), located at 11040 Roselle Street, San\nDiego, CA 92121 (“APBS”). TESARO, GSK and Althea may be referred to, collectively, in this Agreement as the “Parties”, and, individually, as a\n“Party”.\n1. Purpose. TESARO and GSK are in discussions concerning a potential co-development collaboration for one or more of TESARO’s biologic\nproduct candidates, for which Althea performs sterile cGMP fill/finish services, and in connection therewith, GSK has requested to engage in\nbackground due diligence with Althea in regard to such sterile cGMP fill/finish services (the “Stated Purpose”). In connection with such due\ndiligence discussions, the Disclosing Party, may disclose or make available to the Receiving Party certain information which the Disclosing Party\ndesires the Receiving Party treat as confidential.\n2. Definition. “Confidential Information” means all information and materials of a confidential, secret or proprietary nature disclosed by or on\nbehalf of one Party (a “Disclosing Party”) to another Party (a “Receiving Party”), either directly or indirectly, in writing, orally or by inspection\nof tangible objects, including, without limitation, information and materials regarding technology, products, product candidates, research and\ndevelopment activities, results, compound designs or structures, manufacturing or other processes or methods, know-how, inventions or other\nintellectual property, the existence or content of licenses, the existence, status or content of licensing or collaboration negotiations, other\nagreements with third parties, information regarding facilities and financial and other business information, in each case whether or not identified\nor marked as “confidential” and including all documents, presentations, information, reports, materials, evaluations and copies to the extent\nincorporating or generated from any of the foregoing. Disclosing Party’s Confidential Information may also include information obtained by\nDisclosing Party from its collaborators, customers, suppliers, vendors and other third parties who have entrusted their confidential information to\nDisclosing Party.\nConfidential Information shall not, however, include any information which the Receiving Party can establish by written record: (i) was publicly\nknown and available in the public domain prior to the time of disclosure by Disclosing Party to Receiving Party; (ii) becomes publicly known and\navailable after disclosure by Disclosing Party to Receiving Party through no action or inaction of Receiving Party or any of Receiving Party’s\nagents or employees; (iii) was already in possession of Receiving Party, as evidenced by Receiving Party’s contemporaneous records, immediately\nprior to the time of disclosure to Receiving Party by Disclosing Party; (iv) is obtained by Receiving Party from a third party who has a right to\ndisclose such information free of any obligation of confidentiality and who did not derive the information from Disclosing Party; and (v) is\nindependently developed by Receiving Party without use of, or reference to, information provided by Disclosing Party as evidenced by Receiving\nParty’s contemporaneous records and other than under an agreement with the Disclosing Party.\n3. Non-Use and Non-Disclosure of Confidential Information. Receiving Party agrees not to use any Confidential Information of Disclosing Party\nfor any purpose other than the Stated Purpose or as otherwise approved in writing by Disclosing Party. Receiving Party agrees not to disclose any\nConfidential Information of Disclosing Party to any third party or to Receiving Party’s employees, except to those officers, employees, affiliates,\nagents or consultants (“Representatives”) of Receiving Party who have a specific need to know such information in\nTESARO 3-WAY NDA V1\nPage1of4\nEXECUTION VERSION\nCONFIDENTIAL\norder to advise Receiving Party for the Stated Purpose and who are bound by written obligations of confidentiality and restrictions on use that\ncover such Confidential Information and are at least as stringent as those set forth in this Agreement.\n4. Disclosure Required by Law. Notwithstanding anything in this Agreement to the contrary, Receiving Party may disclose Confidential\nInformation of Disclosing Party to the extent required by applicable law, including pursuant to a subpoena or other court or administrative order,\nprovided that Receiving Party gives Disclosing Party prompt written notice of such requirement prior to such disclosure and cooperates with\nDisclosing Party’s efforts to limit the scope of the information to be provided or to obtain an order protecting the information from public\ndisclosure.\n5. Maintenance of Confidentiality. Receiving Party agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure\nand unauthorized use of the Confidential Information of the Disclosing Party but such measures shall be no less than a reasonable degree of care.\nWithout the prior written consent of Disclosing Party, Receiving Party shall not disclose to any person, other that its Represenatives, (i) that any\ninvestigations, discussions or negotiations are taking place concering the Stated Purpose, (ii) that Receiving Party or its Representatives have\nrequested or received any Confidential Information, or (iii) any of the terms, conditions or other facts with respect to the Stated Purpose or such\ninvestigations, discussons or negotiations, including the status thereof.\n6. No Obligation. Disclosing Party may at any time cease to make further disclosure of its Confidential Information, and Receiving Party may refuse\nto accept further disclosure of Disclosing Party’s Confidential Information. Nothing in this Agreement shall obligate either Party to proceed with\nany transaction between them, and each Party reserves the right, in such Party’s sole discretion, to terminate the discussions contemplated by this\nAgreement concerning the Stated Purpose.\n7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. NEITHER PARTY MAKES ANY WARRANTIES,\nEXPRESS, IMPLIED OR OTHERWISE, TO THE OTHER PARTY REGARDING THE ACCURACY, COMPLETENESS OR\nPERFORMANCE OF CONFIDENTIAL INFORMATION DISCLOSED UNDER THIS AGREEMENT EXCEPT THAT IT HAS THE RIGHT\nTO DISCLOSE SUCH CONFIDENTIAL INFORMATION.\n8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed or\nprovided to Receiving Party by or on behalf of Disclosing Party, and all copies of such Confidential Information, which are in the possession of\nReceiving Party, shall be and remain the property of Disclosing Party and shall be promptly returned to Disclosing Party or destroyed, as requested\nand directed in writing by Disclosing Party, and any memoranda, notes, reports and the like generated by Receiving Party with respect to such\nConfidential Information shall be destroyed upon Disclosing Party’s written request with confirmation of such destruction provided to Disclosing\nParty; provided that (i) Receiving Party may retain one copy of such Confidential Information solely for purposes of ensuring compliance with\nthis Agreement and (ii) Receiving Party shall not be obligated to return or destroy automatically created electronic copies stored on system\nback-up tapes.\n9. No Licenses. Nothing in this Agreement is intended to grant any rights or license to Receiving Party under any patent, copyright, trade secret or\nother intellectual property rights of Disclosing Party, nor shall this Agreement or the disclosure of Confidential Information be deemed to grant to\nReceiving Party any rights or licenses in or to the Confidential Information of Disclosing Party except as expressly set forth in this Agreement.\nTESARO 3-WAY NDA V1\nPage2of4\nEXECUTION VERSION\nCONFIDENTIAL\n10. Independent Activities. Disclosing Party understands and acknowledges that prior to the Effective Date, Receiving Party may have in the past, or\nis currently, either internally or with a third party, engaged in research, development and commercialization activities relating to the subject matter\nof Disclosing Party’s Confidential Information. Accordingly, Disclosing Party acknowledges and agrees that nothing in this Agreement will be\nconstrued by implication or otherwise as preventing Receiving Party, during the term of this Agreement or thereafter, from (i) either internally or\nwith a third party, engaging in research, development and commercialization activities relating to the subject matter of Disclosing Party’s\nConfidential Information, and (ii) evaluating such programs, compounds and capabilities of third parties relating to the subject matter of\nDisclosing Party’s Confidential Information, provided, that in each case of (i) and (ii), Receiving Party does not reference and does not use\nDisclosing Party’s Confidential Information disclosed under this Agreement in connection therewith.\n11. Term. This Agreement shall continue until the second anniversary of the Effective Date. Any Party may terminate this Agreement by providing\nwritten notice to the other Parties; provided, however, that the obligations of Receiving Party under this Agreement with regard to non-disclosure\nand restrictions on use of Confidential Information disclosed prior to such early termination shall not be altered by any such early termination and\nshall continue in effect for a period ending five (5) years after such expiration or termination.\n12. Miscellaneous. This Agreement shall bind and inure to the benefit of the Parties hereto and their successors and permitted assignees. This\nAgreement may not be assigned by either Party without the prior written consent of the other Party, except that a Party may assign this Agreement\nin connection with the sale of all, or substantially all, of the assets to which this Agreement relates. This Agreement shall be governed by the laws\nof the State of Delaware, without reference to conflict of laws principles. Each Party agrees that it shall bring any action or proceeding in respect\nto any claim arising out of or related to this Agreement exclusively in the courts of the State of Delaware and the Federal Courts of the United\nStates of America located in the State of Delaware and irrevocably submits to the exclusive jurisdiction of such courts. This document contains the\nentire agreement among the Parties with respect to the subject matter hereof (it being agreed and acknowledged by the Parties that each of the\nexisting Non-Disclosure Agreements between TESARO and GSK (on the one hand), and TESARO and ABPS (on the other hand) shall remain in\nfull force and effect without alteration by this Agreement). Any failure to enforce any provision of this Agreement shall not constitute a waiver of\nsuch provision or of any other provision. Disclosing Party shall have, in addition to any remedies available at law, the right to seek equitable relief\nto enforce this Agreement without the need for a bond or to prove harm. This Agreement may not be amended, nor any obligation waived, except\nby a written document signed by each of the Parties.\n[Signatures on next page]\nTESARO 3-WAY NDA V1\nPage3of4\nEXECUTION VERSION\nCONFIDENTIAL\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date and year written above.\nTESARO, INC.\nGLAXOSMITHKLINE LLC\nBy: /s/ William Aitchison\nBy: /s/ Walter CP Plunkett\nName: William Aitchison\nName: Walter CP Plunkett\nTitle: SVP, Tech BPS\nTitle: Director Scientific Licensing\nAJINOMOTO ALTHEA, INC. DBA\nAjinomoto Bio-Pharma Services\nBy: Digitally signed by Craig W. Logan\nDate: 2018.11.15 10:54:22-08’00’\nName: Craig W. Logan\nTitle: VP Finance & CFO\nTESARO 3-WAY NDA V1\nPage4of4
+2b5702dbae143d75275161125a65cf81.pdf	effective_date jurisdiction party term	EX-99.(E)(10) 3 d473134dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit(e)(10)\nDecember 17, 2012\nAllergan, Inc.\n2525 Dupont Drive\nIrvine, CA 92612-1599\nAttention: David M. Lawrence\nRe: Confidentiality Agreement\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction with or involving (a “Possible\nTransaction”) MAP Pharmaceuticals, Inc. and/or its subsidiaries, affiliates or divisions (collectively, with such\nsubsidiaries, affiliates and divisions, the “Company”), the Company is prepared to make available to you and your\nRepresentatives (as hereinafter defined) certain information concerning the business, products, markets, condition\n(financial or other), operations, assets, liabilities, results of operations, cash flows and prospects of the Company. As a\ncondition to such information being furnished to you and your Representatives, you agree that you shall, and shall cause\nyour Representatives to, treat the Evaluation Material (as hereinafter defined) in accordance with the provisions of this\nletter agreement and take or abstain from taking certain other actions as set forth herein. The term “Representatives”\nshall include your officers, directors, employees, outside legal counsel, accountants, agents and financial advisors, and\n(ii) with respect to the Company, shall include its officers, directors, employees, outside legal counsel, accountants,\nagents and financial advisors. Notwithstanding any other provision hereof, the Company reserves the right not to make\navailable hereunder any information, the provision of which is determined by it, in its sole discretion, to be inadvisable\nor inappropriate.\n1. Evaluation Material. The term “Evaluation Material” shall mean all information relating,\ndirectly or indirectly, to the Company or the business, products, markets, condition (financial or other), operations,\nassets, liabilities, results of operations, cash flows or prospects of the Company (whether prepared by the Company, its\nadvisors or otherwise) which is delivered, disclosed or furnished by or on behalf of the Company to you or to your\nRepresentatives, before, on or after the date hereof, regardless of the manner in which it is delivered, disclosed or\nfurnished, and shall be deemed to include all notes, analyses, compilations, studies, forecasts, interpretations or other\ndocuments prepared by you or your Representatives that contain, reflect or are based upon, in whole or in part, the\ninformation delivered, disclosed or furnished to you or your Representatives pursuant hereto. Notwithstanding any other\nprovision hereof, the term Evaluation Material shall not include information which (i) is or becomes generally available\nto the public other than as a result of a disclosure by you or your Representatives, (ii) was within your possession on a\nnon-confidential basis prior to it being furnished to you by or on behalf of the Company pursuant hereto, provided that\nthe source of such information was not known by you to be bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information,\n(iii) becomes available to you on a non-confidential basis from a source other than the Company or any of its\nRepresentatives, provided that such source is not known by you to be bound by a confidentiality agreement with, or\nother\ncontractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information, or (iv) was\nindependently developed by you prior to or after the date of disclosure.\n2. Use and Disclosure of Evaluation Material. You recognize and acknowledge the competitive\nvalue and confidential nature of the Evaluation Material and the damage that could result to the Company if any\ninformation contained therein is disclosed to a third party. You hereby agree that you and your Representatives shall use\nthe Evaluation Material solely for the purpose of evaluating a Possible Transaction and for no other purpose, that the\nEvaluation Material will be kept confidential and that you and your Representatives will not disclose any of the\nEvaluation Material in any manner whatsoever; provided, however, that (i) you may make any disclosure of the\nEvaluation Material to which the Company gives its prior written consent and (ii) any of the Evaluation Material may be\ndisclosed to your Representatives who need to know such information for the purpose of evaluating a Possible\nTransaction. In any event, you agree to undertake reasonable precautions to safeguard and protect the confidentiality of\nthe Evaluation Material using the same level of care you use to safeguard and protect the confidentiality of your own\nconfidential information and to accept responsibility for any breach of this letter agreement by you or any of your\nRepresentatives.\nIn addition, subject to the final paragraph of this Section 2, the parties agree that, without the prior\nwritten consent of the other party, each party and its Representatives will not disclose to any other person the fact that\nyou or your Representatives have received Evaluation Material or that Evaluation Material has been made available to\nyou or your Representatives, that investigations, discussions or negotiations are taking place concerning a Possible\nTransaction or any of the terms, conditions or other facts with respect to any Possible Transaction, including the status\nthereof and the identity of the parties thereto (collectively, the “Discussion Information”).\nSubject to the final paragraph of this Section 2, in the event that you or any of your Representatives are\nrequested or required (by law or regulation, including the federal securities laws, securities exchange listing rules, oral\nquestions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand or other similar legal process) to disclose any of the Evaluation Material or Discussion Information, you shall\nprovide the Company with prompt written notice of any such request or requirement so that the Company may in its sole\ndiscretion seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter\nagreement, and, if requested by the Company, you shall cooperate with the Company (at the Company’s expense) to\nobtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the\nEvaluation Material and the Discussion Information. If, in the absence of a protective order or other remedy or the\nreceipt of a waiver by the Company, you or any of your Representatives are nonetheless, on the advice of outside legal\ncounsel, legally compelled to disclose Evaluation Material or Discussion Information, you or your Representatives may,\nwithout liability hereunder, disclose only that portion of the Evaluation Material or Discussion information which such\ncounsel advises you is legally required to be disclosed, provided that you shall promptly notify the Company of (i) your\ndetermination to make such disclosure and (ii) the nature, scope and contents of such disclosure.\nDecember 17, 2012\nPage2of7\nNotwithstanding anything in this Section 2 to the contrary, in the event that you seek to acquire control\nof the Company pursuant to any tender or exchange offer or in connection with any proxy or consent solicitation\ninvolving the Company, then solely in such circumstances, (i) you may, without first having notified the Company of\nsuch impending disclosure, disclose any Discussion Information if you have been advised by outside legal counsel that\ndisclosure of such Discussion Information is required to be made by applicable law or regulation (including the federal\nsecurities laws, securities exchange listing rules, oral questions, interrogatories, requests for information or documents in\nlegal proceedings, subpoena, civil investigative demand or other similar legal process) and (ii) you shall not be required\nto cooperate with the Company to obtain any protective order or other reliable assurance that confidential treatment will\nbe accorded any Evaluation Material or Discussion Information.\n3.\nReturn and Destruction of Evaluation Material. In the event that you decide not to proceed with\na Possible Transaction, you will promptly inform the Company of that decision. In that case, or at any time upon the\nrequest of the Company in its sole discretion and for any reason, you will as directed by the Company promptly deliver,\nat your expense, to the Company or destroy all Evaluation Material (and any copies thereof) furnished to you or your\nRepresentatives by or on behalf of the Company pursuant hereto. In the event of such a decision or request, all other\nEvaluation Material prepared by you or on your behalf shall be destroyed, and, upon the Company’s request, you shall\nprovide the Company with prompt written confirmation of your compliance with this paragraph; provided, however, that\none copy of all Evaluation Material may be kept by your outside counsel for archival purposes only. Notwithstanding the\nreturn or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your\nobligations of confidentiality and other obligations and agreements hereunder.\n4. No Representations or Warranties. You understand, acknowledge and agree that neither the\nCompany nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or\ncompleteness of the Evaluation Material. You agree that neither the Company nor any of its Representatives shall have\nany liability to you or to any of your Representatives relating to or resulting from the use of the Evaluation Material or\nany errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive\nagreement regarding any transactions contemplated hereby, when, as and if executed and delivered, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect.\n5. No Solicitation. In consideration of the Evaluation Material being furnished to you, you hereby\nagree that, for a period of one (1) year from the date hereof, neither you nor any of your controlled affiliates or controlled\nRepresentatives (nor any person acting on behalf of or in concert with you or any of your controlled affiliates or\ncontrolled Representatives) will, without the prior written consent of the Company, directly or indirectly, solicit to\nemploy any of the officers or employees of the Company (i) with whom you have had contact during your evaluation of\na Possible Transaction or (ii) who were specifically identified to you by the Company or any of its Representatives\nduring your evaluation of a Possible Transaction. The restrictions of this paragraph shall not apply to any newspaper or\nInternet help wanted\nDecember 17, 2012\nPage3of7\nadvertisement, or any search firm engagement which, in any such case, is not specifically directed or focused on\npersonnel employed by the Company.\n6. Material Non-Public Information. Each party acknowledges and agrees that it is aware (and that\nits respective Representatives are aware or, upon receipt of any Evaluation Information or Discussion Information, will\nbe advised by such party) that (i) the Evaluation Material being furnished to you or your Representatives contains\nmaterial, non-public information regarding the Company and (ii) the United States securities laws prohibit any persons\nwho have material, nonpublic information concerning the matters which are the subject of this letter agreement,\nincluding the Discussion Information, from purchasing or selling securities of a company which may be a party to a\ntransaction of the type contemplated by this letter agreement or from communicating such information to any person\nunder circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in\nreliance upon such information.\n7. No Agreement. The parties understand and agree that no contract or agreement providing for\nany Possible Transaction shall be deemed to exist between you and the Company unless and until a final definitive\nagreement has been executed and delivered. The parties also agree that unless and until a final definitive agreement\nregarding a Possible Transaction has been executed and delivered, neither party will be under any legal obligation of any\nkind whatsoever with respect to such a Possible Transaction by virtue of this letter agreement except for the matters\nspecifically agreed to herein. You acknowledge and agree that the Company reserves the right, in its sole discretion, to\nreject any and all proposals made by you or any of your Representatives with regard to a Possible Transaction, to\ndetermine not to engage in discussions or negotiations and to terminate discussions and negotiations with you at any\ntime, and to conduct, directly or through any of its Representatives, any process for any transaction involving the\nCompany or any of its subsidiaries, if and as they in their sole discretion shall determine (including, without limitation,\nnegotiating with any other interested parties and entering into a definitive agreement without prior notice to you or any\nother person).\n8. No Waiver of Rights. It is understood and agreed that no failure or delay by the parties in\nexercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder.\n9. Remedies. It is understood and agreed that money damages would not be an adequate remedy\nfor any breach of this letter agreement by either party or any of its respective Representatives and that the non-breaching\nparty shall be entitled to equitable relief, including, without limitation, injunction and specific performance, as a remedy\nfor any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement\nbut shall be in addition to all other remedies available at law or equity to the non-breaching party. The parties further\nagree not to raise as a defense or objection to the request or granting of such relief that any breach of this letter\nagreement is or would be compensable by an award of money damages, and the parties agree to waive any requirements\nfor the securing or posting of any bond in connection with such remedy.\nDecember 17, 2012\nPage4of7\n10. Governing Law. This letter agreement is for the benefit of the parties (and their respective\nsubsidiaries and affiliates) and their respective Representatives, and shall be governed by and construed in accordance\nwith the laws of the State of Delaware applicable to agreements made and to be performed entirely within the State of\nDelaware, without regard to the conflict of law provisions thereof that would result in the application of the laws of any\nother jurisdiction. The parties hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of\nany state or federal court located in the State of Delaware for any actions, suits or proceedings arising out of or relating\nto this letter agreement and the transactions contemplated hereby (and the parties agree not to commence any action, suit\nor proceeding relating thereto except in such courts, and further agree that service of any process, summons, notice or\ndocument by U.S . registered mail to the address of the party’s principal executive offices shall be effective service of\nprocess for any action, suit or proceeding brought against such party in any such court). The parties hereby irrevocably\nand unconditionally waive any objection which they may now or hereafter have to the laying of venue of any action, suit\nor proceeding arising out of this letter agreement or the transactions contemplated hereby in any state or federal court in\nthe State of Delaware, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any\nsuch court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n11. Entire Agreement. This letter agreement contains the entire agreement between you and the\nCompany regarding its subject matter and supersedes all prior agreements, understandings, arrangements and discussions\nbetween you and the Company regarding such subject matter, including, without limitation, the parties’ Confidential\nDisclosure Agreement dated as of October 27, 2009 and the parties’ Project Ski Slope Confidentiality Agreement dated\nas of January 10, 2011, and any “clickthrough” agreement relating to the confidentiality of the Evaluation Material\nagreed to by you in connection with your access to any data site maintained in connection with a Possible Transaction.\n12. No Modification. No provision in this letter agreement can be waived, modified or amended\nexcept by written consent of you and the Company, which consent shall specifically refer to the provision to be waived,\nmodified or amended and shall explicitly make such waiver, modification or amendment.\n13. Counterparts. This letter agreement may be signed by facsimile and in one or more\ncounterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single\ninstrument.\n14. Severability. If any provision of this letter agreement is found to violate any statute,\nregulation, rule, order or decree of any governmental authority, court, agency or exchange, such invalidity shall not be\ndeemed to affect any other provision hereof or the validity of the remainder of this letter agreement, and such invalid\nprovision shall be deemed deleted herefrom to the minimum extent necessary to cure such violation.\n15. Assignment. This letter agreement shall be binding on and inure to the benefit of the\nsuccessors and assigns of the parties hereto, but neither of the parties may assign this letter agreement without the prior\nwritten consent of the other party; provided, however, either party may assign this letter agreement in whole or in part to\nany affiliate or subsidiary without consent of the other party.\nDecember 17, 2012\nPage5of7\n16. Successors. This letter agreement shall inure to the benefit of, and be enforceable by, the\nCompany and its successors and assigns.\n17. Term. This letter agreement will terminate two (2) years from the date hereof.\nDecember 17, 2012\nPage6of7\nPlease confirm your agreement with the foregoing by having a duly authorized officer sign and return\none copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement among you\nand the Company.\nVery truly yours,\nMAP Pharmaceuticals, Inc.\nBy: /s/ Timothy S. Nelson\nName: Timothy S. Nelson\nTitle: President and CEO\nCONFIRMED AND AGREED\nas of the date written above:\nAllergan, Inc.\nBy: /s/ David M. Lawrence\nName: David M. Lawrence\nTitle: Sr. Vice President, Corporate Development\nDecember 17, 2012\nPage7of7	EX-99.(E)(10) 3 d473134dex99¢10.htm CONFIDENTIALITY AGREEMENT\nExhibit(e)(10)\nDecember 17, 2012\nAllergan, Inc.\n2525 Dupont Drive\nIrvine, CA 92612-1599\nAttention: David M. Lawrence\nRe: Confidentiality Agreement\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction with or involving (a “Possible\nTransaction”) MAP Pharmaceuticals, Inc. and/or its subsidiaries, affiliates or divisions (collectively, with such\nsubsidiaries, affiliates and divisions, the “Company”), the Company is prepared to make available to you and your\nRepresentatives (as hereinafter defined) certain information concerning the business, products, markets, condition\n(financial or other), operations, assets, liabilities, results of operations, cash flows and prospects of the Company. As a\ncondition to such information being furnished to you and your Representatives, you agree that you shall, and shall cause\nyour Representatives to, treat the Evaluation Material (as hereinafter defined) in accordance with the provisions of this\nletter agreement and take or abstain from taking certain other actions as set forth herein. The term “Representatives”\nshall include your officers, directors, employees, outside legal counsel, accountants, agents and financial advisors, and\n(ii) with respect to the Company, shall include its officers, directors, employees, outside legal counsel, accountants,\nagents and financial advisors. Notwithstanding any other provision hereof, the Company reserves the right not to make\navailable hereunder any information, the provision of which is determined by it, in its sole discretion, to be inadvisable\nor inappropriate.\n1. Evaluation Material. The term “Evaluation Material” shall mean all information relating,\ndirectly or indirectly, to the Company or the business, products, markets, condition (financial or other), operations,\nassets, liabilities, results of operations, cash flows or prospects of the Company (whether prepared by the Company, its\nadvisors or otherwise) which is delivered, disclosed or furnished by or on behalf of the Company to you or to your\nRepresentatives, before, on or after the date hereof, regardless of the manner in which it is delivered, disclosed or\nfurnished, and shall be deemed to include all notes, analyses, compilations, studies, forecasts, interpretations or other\ndocuments prepared by you or your Representatives that contain, reflect or are based upon, in whole or in part, the\ninformation delivered, disclosed or furnished to you or your Representatives pursuant hereto. Notwithstanding any other\nprovision hereof, the term Evaluation Material shall not include information which (i) is or becomes generally available\nto the public other than as a result of a disclosure by you or your Representatives, (ii) was within your possession on a\nnon-confidential basis prior to it being furnished to you by or on behalf of the Company pursuant hereto, provided that\nthe source of such information was not known by you to be bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information,\n(iii) becomes available to you on a non-confidential basis from a source other than the Company or any of its\nRepresentatives, provided that such source is not known by you to be bound by a confidentiality agreement with, or\nother\ncontractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information, or (iv) was\nindependently developed by you prior to or after the date of disclosure.\n2. Use and Disclosure of Evaluation Material. You recognize and acknowledge the competitive\nvalue and confidential nature of the Evaluation Material and the damage that could result to the Company if any\ninformation contained therein is disclosed to a third party. You hereby agree that you and your Representatives shall use\nthe Evaluation Material solely for the purpose of evaluating a Possible Transaction and for no other purpose, that the\nEvaluation Material will be kept confidential and that you and your Representatives will not disclose any of the\nEvaluation Material in any manner whatsoever; provided, however, that (i) you may make any disclosure of the\nEvaluation Material to which the Company gives its prior written consent and (ii) any of the Evaluation Material may be\ndisclosed to your Representatives who need to know such information for the purpose of evaluating a Possible\nTransaction. In any event, you agree to undertake reasonable precautions to safeguard and protect the confidentiality of\nthe Evaluation Material using the same level of care you use to safeguard and protect the confidentiality of your own\nconfidential information and to accept responsibility for any breach of this letter agreement by you or any of your\nRepresentatives.\nIn addition, subject to the final paragraph of this Section 2, the parties agree that, without the prior\nwritten consent of the other party, each party and its Representatives will not disclose to any other person the fact that\nyou or your Representatives have received Evaluation Material or that Evaluation Material has been made available to\nyou or your Representatives, that investigations, discussions or negotiations are taking place concerning a Possible\nTransaction or any of the terms, conditions or other facts with respect to any Possible Transaction, including the status\nthereof and the identity of the parties thereto (collectively, the “Discussion Information”).\nSubject to the final paragraph of this Section 2, in the event that you or any of your Representatives are\nrequested or required (by law or regulation, including the federal securities laws, securities exchange listing rules, oral\nquestions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand or other similar legal process) to disclose any of the Evaluation Material or Discussion Information, you shall\nprovide the Company with prompt written notice of any such request or requirement so that the Company may in its sole\ndiscretion seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter\nagreement, and, if requested by the Company, you shall cooperate with the Company (at the Company’s expense) to\nobtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the\nEvaluation Material and the Discussion Information. If, in the absence of a protective order or other remedy or the\nreceipt of a waiver by the Company, you or any of your Representatives are nonetheless, on the advice of outside legal\ncounsel, legally compelled to disclose Evaluation Material or Discussion Information, you or your Representatives may,\nwithout liability hereunder, disclose only that portion of the Evaluation Material or Discussion information which such\ncounsel advises you is legally required to be disclosed, provided that you shall promptly notify the Company of (i) your\ndetermination to make such disclosure and (ii) the nature, scope and contents of such disclosure.\nDecember 17, 2012\nPage 2 of 7\nNotwithstanding anything in this Section 2 to the contrary, in the event that you seek to acquire control\nof the Company pursuant to any tender or exchange offer or in connection with any proxy or consent solicitation\ninvolving the Company, then solely in such circumstances, (i) you may, without first having notified the Company of\nsuch impending disclosure, disclose any Discussion Information if you have been advised by outside legal counsel that\ndisclosure of such Discussion Information is required to be made by applicable law or regulation (including the federal\nsecurities laws, securities exchange listing rules, oral questions, interrogatories, requests for information or documents in\nlegal proceedings, subpoena, civil investigative demand or other similar legal process) and (ii) you shall not be required\nto cooperate with the Company to obtain any protective order or other reliable assurance that confidential treatment will\nbe accorded any Evaluation Material or Discussion Information.\n3. Return and Destruction of Evaluation Material. In the event that you decide not to proceed with\na Possible Transaction, you will promptly inform the Company of that decision. In that case, or at any time upon the\nrequest of the Company in its sole discretion and for any reason, you will as directed by the Company promptly deliver,\nat your expense, to the Company or destroy all Evaluation Material (and any copies thereof) furnished to you or your\nRepresentatives by or on behalf of the Company pursuant hereto. In the event of such a decision or request, all other\nEvaluation Material prepared by you or on your behalf shall be destroyed, and, upon the Company’s request, you shall\nprovide the Company with prompt written confirmation of your compliance with this paragraph; provided, however, that\none copy of all Evaluation Material may be kept by your outside counsel for archival purposes only. Notwithstanding the\nreturn or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your\nobligations of confidentiality and other obligations and agreements hereunder.\n4. No Representations or Warranties. You understand, acknowledge and agree that neither the\nCompany nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or\ncompleteness of the Evaluation Material. You agree that neither the Company nor any of its Representatives shall have\nany liability to you or to any of your Representatives relating to or resulting from the use of the Evaluation Material or\nany errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive\nagreement regarding any transactions contemplated hereby, when, as and if executed and delivered, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect.\n5. No Solicitation. In consideration of the Evaluation Material being furnished to you, you hereby\nagree that, for a period of one (1) year from the date hereof, neither you nor any of your controlled affiliates or controlled\nRepresentatives (nor any person acting on behalf of or in concert with you or any of your controlled affiliates or\ncontrolled Representatives) will, without the prior written consent of the Company, directly or indirectly, solicit to\nemploy any of the officers or employees of the Company (i) with whom you have had contact during your evaluation of\na Possible Transaction or (ii) who were specifically identified to you by the Company or any of its Representatives\nduring your evaluation of a Possible Transaction. The restrictions of this paragraph shall not apply to any newspaper or\nInternet help wanted\nDecember 17, 2012\nPage 3 of 7\nadvertisement, or any search firm engagement which, in any such case, is not specifically directed or focused on\npersonnel employed by the Company.\n6. Material Non-Public Information. Each party acknowledges and agrees that it is aware (and that\nits respective Representatives are aware or, upon receipt of any Evaluation Information or Discussion Information, will\nbe advised by such party) that (i) the Evaluation Material being furnished to you or your Representatives contains\nmaterial, non-public information regarding the Company and (ii) the United States securities laws prohibit any persons\nwho have material, nonpublic information concerning the matters which are the subject of this letter agreement,\nincluding the Discussion Information, from purchasing or selling securities of a company which may be a party to a\ntransaction of the type contemplated by this letter agreement or from communicating such information to any person\nunder circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in\nreliance upon such information.\n7. No Agreement. The parties understand and agree that no contract or agreement providing for\nany Possible Transaction shall be deemed to exist between you and the Company unless and until a final definitive\nagreement has been executed and delivered. The parties also agree that unless and until a final definitive agreement\nregarding a Possible Transaction has been executed and delivered, neither party will be under any legal obligation of any\nkind whatsoever with respect to such a Possible Transaction by virtue of this letter agreement except for the matters\nspecifically agreed to herein. You acknowledge and agree that the Company reserves the right, in its sole discretion, to\nreject any and all proposals made by you or any of your Representatives with regard to a Possible Transaction, to\ndetermine not to engage in discussions or negotiations and to terminate discussions and negotiations with you at any\ntime, and to conduct, directly or through any of its Representatives, any process for any transaction involving the\nCompany or any of its subsidiaries, if and as they in their sole discretion shall determine (including, without limitation,\nnegotiating with any other interested parties and entering into a definitive agreement without prior notice to you or any\nother person).\n8. No Waiver of Rights. It is understood and agreed that no failure or delay by the parties in\nexercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder.\n9. Remedies. It is understood and agreed that money damages would not be an adequate remedy\nfor any breach of this letter agreement by either party or any of its respective Representatives and that the non-breaching\nparty shall be entitled to equitable relief, including, without limitation, injunction and specific performance, as a remedy\nfor any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement\nbut shall be in addition to all other remedies available at law or equity to the non-breaching party. The parties further\nagree not to raise as a defense or objection to the request or granting of such relief that any breach of this letter\nagreement is or would be compensable by an award of money damages, and the parties agree to waive any requirements\nfor the securing or posting of any bond in connection with such remedy.\nDecember 17, 2012\nPage 4 of 7\n10. Governing Law. This letter agreement is for the benefit of the parties (and their respective\nsubsidiaries and affiliates) and their respective Representatives, and shall be governed by and construed in accordance\nwith the laws of the State of Delaware applicable to agreements made and to be performed entirely within the State of\nDelaware, without regard to the conflict of law provisions thereof that would result in the application of the laws of any\nother jurisdiction. The parties hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of\nany state or federal court located in the State of Delaware for any actions, suits or proceedings arising out of or relating\nto this letter agreement and the transactions contemplated hereby (and the parties agree not to commence any action, suit\nor proceeding relating thereto except in such courts, and further agree that service of any process, summons, notice or\ndocument by U.S. registered mail to the address of the party’s principal executive offices shall be effective service of\nprocess for any action, suit or proceeding brought against such party in any such court). The parties hereby irrevocably\nand unconditionally waive any objection which they may now or hereafter have to the laying of venue of any action, suit\nor proceeding arising out of this letter agreement or the transactions contemplated hereby in any state or federal court in\nthe State of Delaware, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any\nsuch court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n11. Entire Agreement. This letter agreement contains the entire agreement between you and the\nCompany regarding its subject matter and supersedes all prior agreements, understandings, arrangements and discussions\nbetween you and the Company regarding such subject matter, including, without limitation, the parties’ Confidential\nDisclosure Agreement dated as of October 27, 2009 and the parties’ Project Ski Slope Confidentiality Agreement dated\nas of January 10, 2011, and any “clickthrough” agreement relating to the confidentiality of the Evaluation Material\nagreed to by you in connection with your access to any data site maintained in connection with a Possible Transaction.\n12. No Modification. No provision in this letter agreement can be waived, modified or amended\nexcept by written consent of you and the Company, which consent shall specifically refer to the provision to be waived,\nmodified or amended and shall explicitly make such waiver, modification or amendment.\n13. Counterparts. This letter agreement may be signed by facsimile and in one or more\ncounterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single\ninstrument.\n14. Severability. If any provision of this letter agreement is found to violate any statute,\nregulation, rule, order or decree of any governmental authority, court, agency or exchange, such invalidity shall not be\ndeemed to affect any other provision hereof or the validity of the remainder of this letter agreement, and such invalid\nprovision shall be deemed deleted herefrom to the minimum extent necessary to cure such violation.\n15. Assignment. This letter agreement shall be binding on and inure to the benefit of the\nsuccessors and assigns of the parties hereto, but neither of the parties may assign this letter agreement without the prior\nwritten consent of the other party; provided, however, either party may assign this letter agreement in whole or in part to\nany affiliate or subsidiary without consent of the other party.\nDecember 17, 2012\nPage 5 of 7\n16. Successors. This letter agreement shall inure to the benefit of, and be enforceable by, the\nCompany and its successors and assigns.\n17. Term. This letter agreement will terminate two (2) years from the date hereof.\nDecember 17, 2012\n \nPage 6 of 7\nPlease confirm your agreement with the foregoing by having a duly authorized officer sign and return\none copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement among you\nand the Company.\nVery truly yours,\nMAP Pharmaceuticals, Inc.\nBy: /s/ Timothy S. Nelson\nName: Timothy S. Nelson\nTitle: President and CEO\nCONFIRMED AND AGREED\nas of the date written above:\nAllergan, Inc.\nBy: /s/ David M. Lawrence\nName: David M. Lawrence\nTitle: Sr. Vice President, Corporate Development\nDecember 17, 2012\nPage 7 of 7	EX-99.(E)(10) 3 d473134dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit(e)(10)\nDecember 17, 2012\nAllergan, Inc.\n2525 Dupont Drive\nIrvine, CA 92612-1599\nAttention: David M. Lawrence\nRe: Confidentiality A Agreement\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction with or involving (a "Possible\nTransaction") MAP Pharmaceuticals, Inc. and/or its subsidiaries, affiliates or divisions (collectively, with such\nsubsidiaries,\naffiliates\nand\ndivisions,\nthe\n"Company."),\nthe\nCompany\nis\nprepared\nto\nmake\navailable\nto\nyou\nand\nyour\nRepresentatives (as hereinafter defined) certain information concerning the business, products, markets, condition\n(financial or other), operations, assets, liabilities, results of operations, cash flows and prospects of the Company. As\na\ncondition to such information being furnished to you and your Representatives, you agree that you shall, and shall cause\nyour Representatives to, treat the Evaluation Material (as hereinafter defined) in accordance with the provisions of this\nletter agreement and take or abstain from taking certain other actions as set forth herein. The term "Representatives"\nshall include your officers, directors, employees, outside legal counsel, accountants, agents and financial advisors, and\n(ii) with respect to the Company, shall include its officers, directors, employees, outside legal counsel, accountants,\nagents\nand\nfinancial\nadvisors.\nNotwithstanding\nany\nother\nprovision\nhereof,\nthe\nCompany\nreserves\nthe\nright\nnot\nto\nmake\navailable hereunder any information, the provision of which is determined by it, in its sole discretion, to be inadvisable\nor inappropriate.\n1. Evaluation Material. The term "Evaluation Material" shall mean all information relating,\ndirectly or indirectly, to the Company or the business, products, markets, condition (financial or other), operations,\nassets, liabilities, results of operations, cash flows or prospects of the Company (whether prepared by the Company,\nits\nadvisors or otherwise) which is delivered, disclosed or furnished by or on behalf of the Company to you or to your\nRepresentatives, before, on or after the date hereof, regardless of the manner in which it is delivered, disclosed or\nfurnished, and shall be deemed to include all notes, analyses, compilations, studies, forecasts, interpretations or other\ndocuments prepared by you or your Representatives that contain, reflect or are based upon, in whole or in part, the\ninformation delivered, disclosed or furnished to you or your Representatives pursuant hereto. Notwithstanding any other\nprovision hereof, the term Evaluation Material shall not include information which (i) is or becomes generally available\nto\nthe\npublic\nother\nthan\nas\na\nresult\nof\na\ndisclosure\nby\nyou\nor\nyour\nRepresentatives,\n(ii)\nwas\nwithin\nyour\npossession\non\na\nnon-confidential basis prior to it being furnished to you by or on behalf of the Company pursuant hereto, provided that\nthe source of such information was not known by you to be bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information,\n(iii) becomes available to you on a non-confidential basis from a source other than the Company or any of its\nRepresentatives, provided that such source is not known by you to be bound by a confidentiality agreement with, or\nother\ncontractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information, or (iv) was\nindependently developed by you prior to or after the date of disclosure.\n2.\nUse and Disclosure of Evaluation Material. You recognize and acknowledge the competitive\nvalue and confidential nature of the Evaluation Material and the damage that could result to the Company if any\ninformation contained therein is disclosed to a third party. You hereby agree that you and your Representatives shall use\nthe Evaluation Material solely for the purpose of evaluating a Possible Transaction and for no other purpose, that the\nEvaluation\nMaterial\nwill\nbe\nkept\nconfidential\nand\nthat\nyou\nand\nyour\nRepresentatives\nwill\nnot\ndisclose\nany\nof\nthe\nEvaluation Material in any manner whatsoever; provided, however, that (i) you may make any disclosure of the\nEvaluation Material to which the Company gives its prior written consent and (ii) any of the Evaluation Material may be\ndisclosed to your Representatives who need to know such information for the purpose of evaluating a Possible\nTransaction. In any event, you agree to undertake reasonable precautions to safeguard and protect the confidentiality of\nthe Evaluation Material using the same level of care you use to safeguard and protect the confidentiality of your own\nconfidential information and to accept responsibility for any breach of this letter agreement by you or any of your\nRepresentatives.\nIn addition, subject to the final paragraph of this Section 2, the parties agree that, without the prior\nwritten consent of the other party, each party and its Representatives will not disclose to any other person the fact that\nyou or your Representatives have received Evaluation Material or that Evaluation Material has been made available to\nyou or your Representatives, that investigations, discussions or negotiations are taking place concerning a Possible\nTransaction or any of the terms, conditions or other facts with respect to any Possible Transaction, including the status\nthereof and the identity of the parties thereto (collectively, the "Discussion Information").\nSubject to the final paragraph of this Section 2, in the event that you or any of your Representatives are\nrequested or required (by law or regulation, including the federal securities laws, securities exchange listing rules, oral\nquestions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand or other similar legal process) to disclose any of the Evaluation Material or Discussion Information, you shall\nprovide the Company with prompt written notice of any such request or requirement so that the Company may in its sole\ndiscretion seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter\nagreement, and, if requested by the Company, you shall cooperate with the Company (at the Company's expense) to\nobtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the\nEvaluation Material and the Discussion Information. If, in the absence of a protective order or other remedy or the\nreceipt of a waiver by the Company, you or any of your Representatives are nonetheless, on the advice of outside legal\ncounsel, legally compelled to disclose Evaluation Material or Discussion Information, you or your Representatives may,\nwithout liability hereunder, disclose only that portion of the Evaluation Material or Discussion information which such\ncounsel advises you is legally required to be disclosed, provided that you shall promptly notify the Company of (i) your\ndetermination to make such disclosure and (ii) the nature, scope and contents of such disclosure.\nDecember 17, 2012\nPage 2 of 7\nNotwithstanding anything in this Section 2 to the contrary, in the event that you seek to acquire control\nof the Company pursuant to any tender or exchange offer or in connection with any proxy or consent solicitation\ninvolving the Company, then solely in such circumstances, (i) you may, without first having notified the Company of\nsuch impending disclosure, disclose any Discussion Information if you have been advised by outside legal counsel that\ndisclosure\nof\nsuch\nDiscussion\nInformation\nis\nrequired\nto\nbe\nmade\nby\napplicable\nlaw\nor\nregulation\n(including\nthe\nfederal\nsecurities laws, securities exchange listing rules, oral questions, interrogatories, requests for information or documents in\nlegal proceedings, subpoena, civil investigative demand or other similar legal process) and (ii) you shall not be required\nto cooperate with the Company to obtain any protective order or other reliable assurance that confidential treatment will\nbe accorded any Evaluation Material or Discussion Information.\n3.\nReturn and Destruction of Evaluation Material. In the event that you decide not to proceed with\na Possible Transaction, you will promptly inform the Company of that decision. In that case, or at any time upon the\nrequest of the Company in its sole discretion and for any reason, you will as directed by the Company promptly deliver,\nat your expense, to the Company or destroy all Evaluation Material (and any copies thereof) furnished to you or your\nRepresentatives by or on behalf of the Company pursuant hereto. In the event of such a decision or request, all other\nEvaluation Material prepared by you or on your behalf shall be destroyed, and, upon the Company's request, you shall\nprovide the Company with prompt written confirmation of your compliance with this paragraph; provided, however, that\none copy of all Evaluation Material may be kept by your outside counsel for archival purposes only. Notwithstanding the\nreturn or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your\nobligations of confidentiality and other obligations and agreements hereunder.\n4. No Representations or Warranties. You understand, acknowledge and agree that neither the\nCompany nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or\ncompleteness of the Evaluation Material. You agree that neither the Company nor any of its Representatives shall have\nany liability to you or to any of your Representatives relating to or resulting from the use of the Evaluation Material or\nany errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive\nagreement regarding any transactions contemplated hereby, when, as and if executed and delivered, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect.\n5.\nNo Solicitation. In consideration of the Evaluation Material being furnished to you, you hereby\nagree that, for a period of one (1) year from the date hereof, neither you nor any of your controlled affiliates or controlled\nRepresentatives (nor any person acting on behalf of or in concert with you or any of your controlled affiliates or\ncontrolled Representatives) will, without the prior written consent of the Company, directly or indirectly, solicit to\nemploy any of the officers or employees of the Company (i) with whom you have had contact during your evaluation of\na Possible Transaction or (ii) who were specifically identified to you by the Company or any of its Representatives\nduring your evaluation of a Possible Transaction. The restrictions of this paragraph shall not apply to any newspaper\nor\nInternet help wanted\nDecember 17, 2012\nPage 3 of 7\nadvertisement, or any search firm engagement which, in any such case, is not specifically directed or focused on\npersonnel employed by the Company.\n6.\nMaterial Non-Public Information. Each party acknowledges and agrees that it is aware (and that\nits respective Representatives are aware or, upon receipt of any Evaluation Information or Discussion Information, will\nbe advised by such party) that (i) the Evaluation Material being furnished to you or your Representatives contains\nmaterial, non-public information regarding the Company and (ii) the United States securities laws prohibit any persons\nwho have material, nonpublic information concerning the matters which are the subject of this letter agreement,\nincluding the Discussion Information, from purchasing or selling securities of a company which may be a party to a\ntransaction of the type contemplated by this letter agreement or from communicating such information to any person\nunder circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in\nreliance upon such information.\n7.\nNo Agreement. The parties understand and agree that no contract or agreement providing for\nany Possible Transaction shall be deemed to exist between you and the Company unless and until a final definitive\nagreement has been executed and delivered. The parties also agree that unless and until a final definitive agreement\nregarding a Possible Transaction has been executed and delivered, neither party will be under any legal obligation of any\nkind whatsoever with respect to such a Possible Transaction by virtue of this letter agreement except for the matters\nspecifically agreed to herein. You acknowledge and agree that the Company reserves the right, in its sole discretion,\nto\nreject any and all proposals made by you or any of your Representatives with regard to a Possible Transaction, to\ndetermine not to engage in discussions or negotiations and to terminate discussions and negotiations with you at any\ntime, and to conduct, directly or through any of its Representatives, any process for any transaction involving the\nCompany or any of its subsidiaries, if and as they in their sole discretion shall determine (including, without limitation,\nnegotiating with any other interested parties and entering into a definitive agreement without prior notice to you or any\nother person).\n8.\nNo Waiver of Rights. It is understood and agreed that no failure or delay by the parties in\nexercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder.\n9.\nRemedies. It is understood and agreed that money damages would not be an adequate remedy\nfor any breach of this letter agreement by either party or any of its respective Representatives and that the non-breaching\nparty shall be entitled to equitable relief, including, without limitation, injunction and specific performance, as a remedy\nfor any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement\nbut shall be in addition to all other remedies available at law or equity to the non-breaching party. The parties further\nagree not to raise as a defense or objection to the request or granting of such relief that any breach of this letter\nagreement is or would be compensable by an award of money damages, and the parties agree to waive any requirements\nfor the securing or posting of any bond in connection with such remedy.\nDecember 17, 2012\nPage 4 of 7\n10.\nGoverning Law. This letter agreement is for the benefit of the parties (and their respective\nsubsidiaries and affiliates) and their respective Representatives, and shall be governed by and construed in accordance\nwith the laws of the State of Delaware applicable to agreements made and to be performed entirely within the State of\nDelaware, without regard to the conflict of law provisions thereof that would result in the application of the laws of any\nother jurisdiction The parties hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of\nany state or federal court located in the State of Delaware for any actions, suits or proceedings arising out of or relating\nto this letter agreement and the transactions contemplated hereby (and the parties agree not to commence any action, suit\nor proceeding relating thereto except in such courts, and further agree that service of any process, summons, notice\nor\ndocument by U.S. registered mail to the address of the party's principal executive offices shall be effective service of\nprocess\nfor\nany\naction,\nsuit\nor\nproceeding\nbrought\nagainst\nsuch\nparty\nin\nany\nsuch\ncourt).\nThe\nparties\nhereby\nirrevocably\nand unconditionally waive any objection which they may now or hereafter have to the laying of venue of any action, suit\nor proceeding arising out of this letter agreement or the transactions contemplated hereby in any state or federal court in\nthe State of Delaware, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any\nsuch court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n11.\nEntire Agreement. This letter agreement contains the entire agreement between you and the\nCompany regarding its subject matter and supersedes all prior agreements, understandings, arrangements and discussions\nbetween you and the Company regarding such subject matter, including, without limitation, the parties' Confidential\nDisclosure Agreement dated as of October 27, 2009 and the parties' Project Ski Slope Confidentiality Agreement dated\nas of January 10, 2011, and any "clickthrough" agreement relating to the confidentiality of the Evaluation Material\nagreed to by you in connection with your access to any data site maintained in connection with a Possible Transaction.\n12.\nNo Modification. No provision in this letter agreement can be waived, modified or amended\nexcept by written consent of you and the Company, which consent shall specifically refer to the provision to be waived,\nmodified or amended and shall explicitly make such waiver, modification or amendment.\n13.\nCounterparts. This letter agreement may be signed by facsimile and in one or more\ncounterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single\ninstrument.\n14.\nSeverability.. If any provision of this letter agreement is found to violate any statute,\nregulation, rule, order or decree of any governmental authority, court, agency or exchange, such invalidity shall not\nbe\ndeemed to affect any other provision hereof or the validity of the remainder of this letter agreement, and such invalid\nprovision shall be deemed deleted herefrom to the minimum extent necessary to cure such violation.\n15. Assignment. This letter agreement shall be binding on and inure to the benefit of the\nsuccessors and assigns of the parties hereto, but neither of the parties may assign this letter agreement without the prior\nwritten consent of the other party; provided, however, either party may assign this letter agreement in whole or in part\nto\nany affiliate or subsidiary without consent of the other party.\nDecember 17, 2012\nPage 5 of 7\n16.\nSuccessors. This letter agreement shall inure to the benefit of, and be enforceable by, the\nCompany and its successors and assigns.\n17.\nTerm. This letter agreement will terminate two (2) years from the date hereof.\nDecember 17, 2012\nPage 6 of 7\nPlease confirm your agreement with the foregoing by having a duly authorized officer sign and return\none copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement among you\nand the Company.\nVery truly yours,\nMAP Pharmaceuticals, Inc.\nBy: /s/ Timothy S. Nelson\nName: Timothy S. Nelson\nTitle: President and CEO\nCONFIRMED AND AGREED\nas of the date written above:\nAllergan, Inc.\nBy: /s/ David M. Lawrence\nName: David M. Lawrence\nTitle: Sr. Vice President, Corporate Development\nDecember 17, 2012\nPage 7 of 7	EX-99.(E)(10) 3 d473134dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit(e)(10)\nDecember 17, 2012\nAllergan, Inc.\n2525 Dupont Drive\nIrvine, CA 92612-1599\nAttention: David M. Lawrence\nRe: Confidentiality Agreement\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction with or involving (a “Possible\nTransaction”) MAP Pharmaceuticals, Inc. and/or its subsidiaries, affiliates or divisions (collectively, with such\nsubsidiaries, affiliates and divisions, the “Company”), the Company is prepared to make available to you and your\nRepresentatives (as hereinafter defined) certain information concerning the business, products, markets, condition\n(financial or other), operations, assets, liabilities, results of operations, cash flows and prospects of the Company. As a\ncondition to such information being furnished to you and your Representatives, you agree that you shall, and shall cause\nyour Representatives to, treat the Evaluation Material (as hereinafter defined) in accordance with the provisions of this\nletter agreement and take or abstain from taking certain other actions as set forth herein. The term “Representatives”\nshall include your officers, directors, employees, outside legal counsel, accountants, agents and financial advisors, and\n(ii) with respect to the Company, shall include its officers, directors, employees, outside legal counsel, accountants,\nagents and financial advisors. Notwithstanding any other provision hereof, the Company reserves the right not to make\navailable hereunder any information, the provision of which is determined by it, in its sole discretion, to be inadvisable\nor inappropriate.\n1. Evaluation Material. The term “Evaluation Material” shall mean all information relating,\ndirectly or indirectly, to the Company or the business, products, markets, condition (financial or other), operations,\nassets, liabilities, results of operations, cash flows or prospects of the Company (whether prepared by the Company, its\nadvisors or otherwise) which is delivered, disclosed or furnished by or on behalf of the Company to you or to your\nRepresentatives, before, on or after the date hereof, regardless of the manner in which it is delivered, disclosed or\nfurnished, and shall be deemed to include all notes, analyses, compilations, studies, forecasts, interpretations or other\ndocuments prepared by you or your Representatives that contain, reflect or are based upon, in whole or in part, the\ninformation delivered, disclosed or furnished to you or your Representatives pursuant hereto. Notwithstanding any other\nprovision hereof, the term Evaluation Material shall not include information which (i) is or becomes generally available\nto the public other than as a result of a disclosure by you or your Representatives, (ii) was within your possession on a\nnon-confidential basis prior to it being furnished to you by or on behalf of the Company pursuant hereto, provided that\nthe source of such information was not known by you to be bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information,\n(iii) becomes available to you on a non-confidential basis from a source other than the Company or any of its\nRepresentatives, provided that such source is not known by you to be bound by a confidentiality agreement with, or\nother\ncontractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information, or (iv) was\nindependently developed by you prior to or after the date of disclosure.\n2. Use and Disclosure of Evaluation Material. You recognize and acknowledge the competitive\nvalue and confidential nature of the Evaluation Material and the damage that could result to the Company if any\ninformation contained therein is disclosed to a third party. You hereby agree that you and your Representatives shall use\nthe Evaluation Material solely for the purpose of evaluating a Possible Transaction and for no other purpose, that the\nEvaluation Material will be kept confidential and that you and your Representatives will not disclose any of the\nEvaluation Material in any manner whatsoever; provided, however, that (i) you may make any disclosure of the\nEvaluation Material to which the Company gives its prior written consent and (ii) any of the Evaluation Material may be\ndisclosed to your Representatives who need to know such information for the purpose of evaluating a Possible\nTransaction. In any event, you agree to undertake reasonable precautions to safeguard and protect the confidentiality of\nthe Evaluation Material using the same level of care you use to safeguard and protect the confidentiality of your own\nconfidential information and to accept responsibility for any breach of this letter agreement by you or any of your\nRepresentatives.\nIn addition, subject to the final paragraph of this Section 2, the parties agree that, without the prior\nwritten consent of the other party, each party and its Representatives will not disclose to any other person the fact that\nyou or your Representatives have received Evaluation Material or that Evaluation Material has been made available to\nyou or your Representatives, that investigations, discussions or negotiations are taking place concerning a Possible\nTransaction or any of the terms, conditions or other facts with respect to any Possible Transaction, including the status\nthereof and the identity of the parties thereto (collectively, the “Discussion Information”).\nSubject to the final paragraph of this Section 2, in the event that you or any of your Representatives are\nrequested or required (by law or regulation, including the federal securities laws, securities exchange listing rules, oral\nquestions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand or other similar legal process) to disclose any of the Evaluation Material or Discussion Information, you shall\nprovide the Company with prompt written notice of any such request or requirement so that the Company may in its sole\ndiscretion seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter\nagreement, and, if requested by the Company, you shall cooperate with the Company (at the Company’s expense) to\nobtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the\nEvaluation Material and the Discussion Information. If, in the absence of a protective order or other remedy or the\nreceipt of a waiver by the Company, you or any of your Representatives are nonetheless, on the advice of outside legal\ncounsel, legally compelled to disclose Evaluation Material or Discussion Information, you or your Representatives may,\nwithout liability hereunder, disclose only that portion of the Evaluation Material or Discussion information which such\ncounsel advises you is legally required to be disclosed, provided that you shall promptly notify the Company of (i) your\ndetermination to make such disclosure and (ii) the nature, scope and contents of such disclosure.\nDecember 17, 2012\nPage2of7\nNotwithstanding anything in this Section 2 to the contrary, in the event that you seek to acquire control\nof the Company pursuant to any tender or exchange offer or in connection with any proxy or consent solicitation\ninvolving the Company, then solely in such circumstances, (i) you may, without first having notified the Company of\nsuch impending disclosure, disclose any Discussion Information if you have been advised by outside legal counsel that\ndisclosure of such Discussion Information is required to be made by applicable law or regulation (including the federal\nsecurities laws, securities exchange listing rules, oral questions, interrogatories, requests for information or documents in\nlegal proceedings, subpoena, civil investigative demand or other similar legal process) and (ii) you shall not be required\nto cooperate with the Company to obtain any protective order or other reliable assurance that confidential treatment will\nbe accorded any Evaluation Material or Discussion Information.\n3.\nReturn and Destruction of Evaluation Material. In the event that you decide not to proceed with\na Possible Transaction, you will promptly inform the Company of that decision. In that case, or at any time upon the\nrequest of the Company in its sole discretion and for any reason, you will as directed by the Company promptly deliver,\nat your expense, to the Company or destroy all Evaluation Material (and any copies thereof) furnished to you or your\nRepresentatives by or on behalf of the Company pursuant hereto. In the event of such a decision or request, all other\nEvaluation Material prepared by you or on your behalf shall be destroyed, and, upon the Company’s request, you shall\nprovide the Company with prompt written confirmation of your compliance with this paragraph; provided, however, that\none copy of all Evaluation Material may be kept by your outside counsel for archival purposes only. Notwithstanding the\nreturn or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your\nobligations of confidentiality and other obligations and agreements hereunder.\n4. No Representations or Warranties. You understand, acknowledge and agree that neither the\nCompany nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or\ncompleteness of the Evaluation Material. You agree that neither the Company nor any of its Representatives shall have\nany liability to you or to any of your Representatives relating to or resulting from the use of the Evaluation Material or\nany errors therein or omissions therefrom. Only those representations or warranties which are made in a final definitive\nagreement regarding any transactions contemplated hereby, when, as and if executed and delivered, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect.\n5. No Solicitation. In consideration of the Evaluation Material being furnished to you, you hereby\nagree that, for a period of one (1) year from the date hereof, neither you nor any of your controlled affiliates or controlled\nRepresentatives (nor any person acting on behalf of or in concert with you or any of your controlled affiliates or\ncontrolled Representatives) will, without the prior written consent of the Company, directly or indirectly, solicit to\nemploy any of the officers or employees of the Company (i) with whom you have had contact during your evaluation of\na Possible Transaction or (ii) who were specifically identified to you by the Company or any of its Representatives\nduring your evaluation of a Possible Transaction. The restrictions of this paragraph shall not apply to any newspaper or\nInternet help wanted\nDecember 17, 2012\nPage3of7\nadvertisement, or any search firm engagement which, in any such case, is not specifically directed or focused on\npersonnel employed by the Company.\n6. Material Non-Public Information. Each party acknowledges and agrees that it is aware (and that\nits respective Representatives are aware or, upon receipt of any Evaluation Information or Discussion Information, will\nbe advised by such party) that (i) the Evaluation Material being furnished to you or your Representatives contains\nmaterial, non-public information regarding the Company and (ii) the United States securities laws prohibit any persons\nwho have material, nonpublic information concerning the matters which are the subject of this letter agreement,\nincluding the Discussion Information, from purchasing or selling securities of a company which may be a party to a\ntransaction of the type contemplated by this letter agreement or from communicating such information to any person\nunder circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in\nreliance upon such information.\n7. No Agreement. The parties understand and agree that no contract or agreement providing for\nany Possible Transaction shall be deemed to exist between you and the Company unless and until a final definitive\nagreement has been executed and delivered. The parties also agree that unless and until a final definitive agreement\nregarding a Possible Transaction has been executed and delivered, neither party will be under any legal obligation of any\nkind whatsoever with respect to such a Possible Transaction by virtue of this letter agreement except for the matters\nspecifically agreed to herein. You acknowledge and agree that the Company reserves the right, in its sole discretion, to\nreject any and all proposals made by you or any of your Representatives with regard to a Possible Transaction, to\ndetermine not to engage in discussions or negotiations and to terminate discussions and negotiations with you at any\ntime, and to conduct, directly or through any of its Representatives, any process for any transaction involving the\nCompany or any of its subsidiaries, if and as they in their sole discretion shall determine (including, without limitation,\nnegotiating with any other interested parties and entering into a definitive agreement without prior notice to you or any\nother person).\n8. No Waiver of Rights. It is understood and agreed that no failure or delay by the parties in\nexercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder.\n9. Remedies. It is understood and agreed that money damages would not be an adequate remedy\nfor any breach of this letter agreement by either party or any of its respective Representatives and that the non-breaching\nparty shall be entitled to equitable relief, including, without limitation, injunction and specific performance, as a remedy\nfor any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this letter agreement\nbut shall be in addition to all other remedies available at law or equity to the non-breaching party. The parties further\nagree not to raise as a defense or objection to the request or granting of such relief that any breach of this letter\nagreement is or would be compensable by an award of money damages, and the parties agree to waive any requirements\nfor the securing or posting of any bond in connection with such remedy.\nDecember 17, 2012\nPage4of7\n10. Governing Law. This letter agreement is for the benefit of the parties (and their respective\nsubsidiaries and affiliates) and their respective Representatives, and shall be governed by and construed in accordance\nwith the laws of the State of Delaware applicable to agreements made and to be performed entirely within the State of\nDelaware, without regard to the conflict of law provisions thereof that would result in the application of the laws of any\nother jurisdiction. The parties hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of\nany state or federal court located in the State of Delaware for any actions, suits or proceedings arising out of or relating\nto this letter agreement and the transactions contemplated hereby (and the parties agree not to commence any action, suit\nor proceeding relating thereto except in such courts, and further agree that service of any process, summons, notice or\ndocument by U.S . registered mail to the address of the party’s principal executive offices shall be effective service of\nprocess for any action, suit or proceeding brought against such party in any such court). The parties hereby irrevocably\nand unconditionally waive any objection which they may now or hereafter have to the laying of venue of any action, suit\nor proceeding arising out of this letter agreement or the transactions contemplated hereby in any state or federal court in\nthe State of Delaware, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any\nsuch court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n11. Entire Agreement. This letter agreement contains the entire agreement between you and the\nCompany regarding its subject matter and supersedes all prior agreements, understandings, arrangements and discussions\nbetween you and the Company regarding such subject matter, including, without limitation, the parties’ Confidential\nDisclosure Agreement dated as of October 27, 2009 and the parties’ Project Ski Slope Confidentiality Agreement dated\nas of January 10, 2011, and any “clickthrough” agreement relating to the confidentiality of the Evaluation Material\nagreed to by you in connection with your access to any data site maintained in connection with a Possible Transaction.\n12. No Modification. No provision in this letter agreement can be waived, modified or amended\nexcept by written consent of you and the Company, which consent shall specifically refer to the provision to be waived,\nmodified or amended and shall explicitly make such waiver, modification or amendment.\n13. Counterparts. This letter agreement may be signed by facsimile and in one or more\ncounterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single\ninstrument.\n14. Severability. If any provision of this letter agreement is found to violate any statute,\nregulation, rule, order or decree of any governmental authority, court, agency or exchange, such invalidity shall not be\ndeemed to affect any other provision hereof or the validity of the remainder of this letter agreement, and such invalid\nprovision shall be deemed deleted herefrom to the minimum extent necessary to cure such violation.\n15. Assignment. This letter agreement shall be binding on and inure to the benefit of the\nsuccessors and assigns of the parties hereto, but neither of the parties may assign this letter agreement without the prior\nwritten consent of the other party; provided, however, either party may assign this letter agreement in whole or in part to\nany affiliate or subsidiary without consent of the other party.\nDecember 17, 2012\nPage5of7\n16. Successors. This letter agreement shall inure to the benefit of, and be enforceable by, the\nCompany and its successors and assigns.\n17. Term. This letter agreement will terminate two (2) years from the date hereof.\nDecember 17, 2012\nPage6of7\nPlease confirm your agreement with the foregoing by having a duly authorized officer sign and return\none copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement among you\nand the Company.\nVery truly yours,\nMAP Pharmaceuticals, Inc.\nBy: /s/ Timothy S. Nelson\nName: Timothy S. Nelson\nTitle: President and CEO\nCONFIRMED AND AGREED\nas of the date written above:\nAllergan, Inc.\nBy: /s/ David M. Lawrence\nName: David M. Lawrence\nTitle: Sr. Vice President, Corporate Development\nDecember 17, 2012\nPage7of7
+372e268a1e8fe9d6eda0852402434170.pdf	effective_date jurisdiction party term	EX-10.33 15 w58244ex10-33.htm INVENTION & NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.33\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement effective as of May 23, 2000 is made between uDate.com, Inc., a Delaware corporation (hereinafter referred to collectively with\nits predecessors and its past, current and future subsidiary corporations as the “Company”), and Anthony Dunn (the “Employee”).\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee agree as\nfollows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of the\nCompany. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods, techniques,\nformulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer programs,\ncustomer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will not disclose\nany Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other than in the\nperformance of his duties as an employee of the Company) without written approval by an officer of the Company, either during or after his\nemployment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the Employee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program\nlistings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee or others,\nwhich shall come into his custody or possession, shall be and are the exclusive property of the Company to be used by the Employee only in the\nperformance of his duties for the Company. All such materials or copies thereof and all tangible property of the Company in the custody or\npossession of the Employee shall be delivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of his\nemployment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such tangible property.\n(c) The Employee agrees that his obligation not to disclose or to use information and materials of the types set forth in paragraphs (a) and\n(b) above, and his obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of information,\nmaterials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have disclosed or entrusted\nthe same to the Company or to the Employee.\n2. Developments.\n(a) The Employee will make, and has made, full and prompt disclosure to the Company of all inventions, improvements, discoveries,\nmethods, developments, software, and works of authorship, whether patentable or not, which are created, made, conceived or reduced to\npractice by him or under his direction or jointly with others during his employment by the Company, whether or not during normal working hours or\non the premises of the Company (all of which are collectively referred to in this Agreement as “Developments”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all his\nright, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications. However, this\nparagraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and development of the Company\nand which are made and conceived by the Employee not during normal working hours, not on the Company’s premises and not using the Company’s\ntools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this Agreement shall be construed in accordance\nwith the laws of any state which precludes a requirement in an employee agreement to assign certain classes of inventions made by an employee, this\nparagraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the Company agrees falls within such classes. The\nEmployee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his employment with the Company, with respect to\nthe procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States and foreign\ncountries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent applications,\ndeclarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem necessary or desirable\nin order to protect its rights and interests in any Development. The Employee further agrees that if the Company is unable, after reasonable effort, to\nsecure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to execute any such papers as the\nagent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints each executive officer of the Company\nas his agent and attorney-in-fact to execute any such papers on his behalf, and to take any and all actions as the Company may deem necessary or\ndesirable in order to protect its rights and interests in any Development, under the conditions described in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the terms\nof any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his employment with the Company, to refrain from competing, directly or indirectly, with the business of such previous\nemployer or any other party or to refrain from soliciting employees, customers or suppliers of such previous employer or other party. The Employee\nfurther represents that his performance of all the terms of this Agreement and the performance of his duties as an employee of the Company do not\nand will not breach any agreement with any prior employer or other party to which the Employee is a party (including without limitation any\nnondisclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the Company to use any\nconfidential or proprietary information or material belonging to any previous employer or others.\n-2-\n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions\nwhich are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such agreements.\n5. No Employment Contract.\nThe Employee understand that this Agreement does not constitute a contract of employment and does not imply that his employment will\ncontinue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject\nmatter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed\nby the Employee and the Company. The Employee agrees that any change or changes in his duties, salary or compensation after the signing of this\nAgreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the Company\nand its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right.\nA waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or waiver of\nany right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary\nor affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such\ntransfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and are\nconsidered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition to\nsuch other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the State of\nDelaware (without reference to\n-3-\nthe conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or\nrelating to any provision of this Agreement shall be commenced only in a court of the State of Delaware (or, if appropriate, a federal court located\nwithin Delaware), and the Company and the Employee each consents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND AGREES\nTO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nUDATE.COM, INC.\nDate:\nBy: /s/ Martin Clifford\nMartin Clifford\nChief Operating Officer\nDate:\nBy: /s/ Anthony Dunn\nAnthony Dunn\n-4-	EX-10.33 15 w58244ex10-33.htm INVENTION & NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.33\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement effective as of May 23, 2000 is made between uDate.com, Inc., a Delaware corporation (hereinafter referred to collectively with\nits predecessors and its past, current and future subsidiary corporations as the “Company”), and Anthony Dunn (the “Employee”).\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee agree as\nfollows:\n1. Proprietary Information.\n(@) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information™) is and shall be the exclusive property of the\nCompany. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods, techniques,\nformulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer programs,\ncustomer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will not disclose\nany Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other than in the\nperformance of his duties as an employee of the Company) without written approval by an officer of the Company, either during or after his\nemployment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the Employee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program\nlistings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee or others,\nwhich shall come into his custody or possession, shall be and are the exclusive property of the Company to be used by the Employee only in the\nperformance of his duties for the Company. All such materials or copies thereof and all tangible property of the Company in the custody or\npossession of the Employee shall be delivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of his\nemployment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such tangible property.\n(c) The Employee agrees that his obligation not to disclose or to use information and materials of the types set forth in paragraphs (a) and\n(b) above, and his obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of information,\nmaterials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have disclosed or entrusted\nthe same to the Company or to the Employee.\n2. Developments.\n(@) The Employee will make, and has made, full and prompt disclosure to the Company of all inventions, improvements, discoveries,\nmethods, developments, software, and works of authorship, whether patentable or not, which are created, made, conceived or reduced to\npractice by him or under his direction or jointly with others during his employment by the Company, whether or not during normal working hours or\non the premises of the Company (all of which are collectively referred to in this Agreement as “Developments”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all his\nright, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications. However, this\nparagraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and development of the Company\nand which are made and conceived by the Employee not during normal working hours, not on the Company’s premises and not using the Company’s\ntools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this Agreement shall be construed in accordance\nwith the laws of any state which precludes a requirement in an employee agreement to assign certain classes of inventions made by an employee, this\nparagraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the Company agrees falls within such classes. The\nEmployee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his employment with the Company, with respect to\nthe procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States and foreign\ncountries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent applications,\ndeclarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem necessary or desirable\nin order to protect its rights and interests in any Development. The Employee further agrees that if the Company is unable, after reasonable effort, to\nsecure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to execute any such papers as the\nagent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints each executive officer of the Company\nas his agent and attorney-in-fact to execute any such papers on his behalf, and to take any and all actions as the Company may deem necessary or\ndesirable in order to protect its rights and interests in any Development, under the conditions described in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the terms\nof any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his employment with the Company, to refrain from competing, directly or indirectly, with the business of such previous\nemployer or any other party or to refrain from soliciting employees, customers or suppliers of such previous employer or other party. The Employee\nfurther represents that his performance of all the terms of this Agreement and the performance of his duties as an employee of the Company do not\nand will not breach any agreement with any prior employer or other party to which the Employee is a party (including without limitation any\nnondisclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the Company to use any\nconfidential or proprietary information or material belonging to any previous employer or others.\n-\n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions\nwhich are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such agreements.\n5. No Employment Contract.\nThe Employee understand that this Agreement does not constitute a contract of employment and does not imply that his employment will\ncontinue for any period of time.\n6. Miscellaneous.\n(@)  The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject\nmatter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed\nby the Employee and the Company. The Employee agrees that any change or changes in his duties, salary or compensation after the signing of this\nAgreement shall not affect the validity or scope of this Agreement.\n(c)  This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the Company\nand its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right.\nA waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or waiver of\nany right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary\nor affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such\ntransfer.\n(f)  The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and are\nconsidered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition to\nsuch other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the State of\nDelaware (without reference to\nthe conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or\nrelating to any provision of this Agreement shall be commenced only in a court of the State of Delaware (or, if appropriate, a federal court located\nwithin Delaware), and the Company and the Employee each consents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND AGREES\nTO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nUDATE.COM, INC.\nDate: By:  /s/ Martin Clifford\nMartin Clifford\nChief Operating Officer\nDate: By: /s/ Anthony Dunn\nAnthony Dunn\n4-	EX-10.33 15 w58244ex10-33.htm INVENTION & NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.33\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement effective as of May 23, 2000 is made between uDate.com, Inc., a Delaware corporation (hereinafter referred to collectively with\nits predecessors and its past, current and future subsidiary corporations as the "Company"), and Anthony Dunn (the "Employee").\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee agree as\nfollows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidentia nature concerning the\nCompany's business, business relationships or financial affairs (collectively, "Proprietary Information") is and shall be the exclusive property of the\nCompany. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods, techniques,\nformulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer programs,\ncustomer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will not disclose\nany Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other than in the\nperformance of his duties as an employee of the Company) without written approval by an officer of the Company, either during or after his\nemployment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the Employee.\n(b)\nThe Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program\nlistings,\nor\nother\nwritten,\nphotographic,\nor\nother\ntangible\nmaterial\ncontaining\nProprietary\nInformation,\nwhether\ncreated\nby\nthe\nEmployee\nor\nothers,\nwhich shall come into his custody or possession, shall be and are the exclusive property of the Company to be used by the Employee only in the\nperformance of his duties for the Company. All such materials or copies thereof and all tangible property of the Company in the custody or\npossession of the Employee shall be delivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of his\nemployment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such tangible property.\n(c)\nThe Employee agrees that his obligation not to disclose or to use information and materials of the types set forth in paragraphs\n(a)\nand\n(b) above, and his obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of information,\nmaterials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have disclosed or entrusted\nthe same to the Company or to the Employee.\n2. Developments.\n(a) The Employee will make, and has made, full and prompt disclosure to the Company of all inventions, improvements, discoveries,\nmethods, developments, software, and works of authorship, whether patentable or not, which are created, made, conceived or reduced to\npractice by him or under his direction or jointly with others during his employment by the Company, whether or not during normal working hours or\non the premises of the Company (all of which are collectively referred to in this Agreement as "Developments").\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all his\nright, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications. However, this\nparagraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and development of the Company\nand which are made and conceived by the Employee not during normal working hours, not on the Company's premises and not using the Company's\ntools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this Agreement shal be construed in accordance\nwith the laws of any state which precludes a requirement in an employee agreement to assign certain classes of inventions made by an employee, this\nparagraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the Company agrees falls within such classes. The\nEmployee also hereby waives all claims to moral rights in any Developments.\n(c)\nThe Employee agrees to cooperate fully with the Company, both during and after his employment with the Company, with respect to\nthe procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States and foreign\ncountries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent applications,\ndeclarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem necessary or desirable\nin\norder to protect its rights and interests in any Development. The Employee further agrees that if the Company is unable, after reasonable effort,\nto\nsecure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to execute any such papers as the\nagent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints each executive officer of the Company\nas his agent and attorney-in-fact to execute any such papers on his behalf, and to take any and all actions as the Company may deem necessary or\ndesirable in order to protect its rights and interests in any Development, under the conditions described in this sentence.\n3.\nOther Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the terms\nof any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his employment with the Company, to refrain from competing, directly or indirectly, with the business of such previous\nemployer or any other party or to refrain from soliciting employees, customers or suppliers of such previous employer or other party. The Employee\nfurther represents that his performance of all the terms of this Agreement and the performance of his duties as an employee of the Company do not\nand will not breach any agreement with any prior employer or other party to which the Employee is a party (including without limitation any\nnondisclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the Company to use any\nconfidential or proprietary information or material belonging to any previous employer or others.\n-2-\n4.\nUnited States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions\nwhich are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such agreements.\n5.\nNo Employment Contract.\nThe Employee understand that this Agreement does not constitute a contract of employment and does not imply that his employment will\ncontinue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject\nmatter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed\nby the Employee and the Company. The Employee agrees that any change or changes in his duties, salary or compensation after the signing of this\nAgreement shall not affect the validity or scope of this Agreement.\n(c)\nThis Agreement will be binding upon the Employee's heirs, executors and administrators and will inure to the benefit of the Company\nand its successors and assigns\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right.\nA waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or waiver of\nany right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary\nor affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such\ntransfer\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and are\nconsidered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition to\nsuch other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(g)\nThis Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the State of\nDelaware (without reference to\n-3-\nthe conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or\nrelating to any provision of this Agreement shall be commenced only in a court of the State of Delaware (or, if appropriate, a federal court located\nwithin Delaware), and the Company and the Employee each consents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND AGREES\nTO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nUDATE.COM, INC.\nDate:\nBy:\n/s/ Martin Clifford\nMartin Clifford\nChief Operating Officer\nDate:\nBy:\n/s/ Anthony Dunn\nAnthony Dunn\n-4-	EX-10.33 15 w58244ex10-33.htm INVENTION & NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.33\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement effective as of May 23, 2000 is made between uDate.com, Inc., a Delaware corporation (hereinafter referred to collectively with\nits predecessors and its past, current and future subsidiary corporations as the “Company”), and Anthony Dunn (the “Employee”).\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee agree as\nfollows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of the\nCompany. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods, techniques,\nformulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer programs,\ncustomer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will not disclose\nany Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other than in the\nperformance of his duties as an employee of the Company) without written approval by an officer of the Company, either during or after his\nemployment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the Employee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program\nlistings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee or others,\nwhich shall come into his custody or possession, shall be and are the exclusive property of the Company to be used by the Employee only in the\nperformance of his duties for the Company. All such materials or copies thereof and all tangible property of the Company in the custody or\npossession of the Employee shall be delivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of his\nemployment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such tangible property.\n(c) The Employee agrees that his obligation not to disclose or to use information and materials of the types set forth in paragraphs (a) and\n(b) above, and his obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of information,\nmaterials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have disclosed or entrusted\nthe same to the Company or to the Employee.\n2. Developments.\n(a) The Employee will make, and has made, full and prompt disclosure to the Company of all inventions, improvements, discoveries,\nmethods, developments, software, and works of authorship, whether patentable or not, which are created, made, conceived or reduced to\npractice by him or under his direction or jointly with others during his employment by the Company, whether or not during normal working hours or\non the premises of the Company (all of which are collectively referred to in this Agreement as “Developments”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all his\nright, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications. However, this\nparagraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and development of the Company\nand which are made and conceived by the Employee not during normal working hours, not on the Company’s premises and not using the Company’s\ntools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this Agreement shall be construed in accordance\nwith the laws of any state which precludes a requirement in an employee agreement to assign certain classes of inventions made by an employee, this\nparagraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the Company agrees falls within such classes. The\nEmployee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his employment with the Company, with respect to\nthe procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States and foreign\ncountries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent applications,\ndeclarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem necessary or desirable\nin order to protect its rights and interests in any Development. The Employee further agrees that if the Company is unable, after reasonable effort, to\nsecure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to execute any such papers as the\nagent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints each executive officer of the Company\nas his agent and attorney-in-fact to execute any such papers on his behalf, and to take any and all actions as the Company may deem necessary or\ndesirable in order to protect its rights and interests in any Development, under the conditions described in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the terms\nof any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his employment with the Company, to refrain from competing, directly or indirectly, with the business of such previous\nemployer or any other party or to refrain from soliciting employees, customers or suppliers of such previous employer or other party. The Employee\nfurther represents that his performance of all the terms of this Agreement and the performance of his duties as an employee of the Company do not\nand will not breach any agreement with any prior employer or other party to which the Employee is a party (including without limitation any\nnondisclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the Company to use any\nconfidential or proprietary information or material belonging to any previous employer or others.\n-2-\n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions\nwhich are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such agreements.\n5. No Employment Contract.\nThe Employee understand that this Agreement does not constitute a contract of employment and does not imply that his employment will\ncontinue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject\nmatter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed\nby the Employee and the Company. The Employee agrees that any change or changes in his duties, salary or compensation after the signing of this\nAgreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the Company\nand its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right.\nA waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or waiver of\nany right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary\nor affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such\ntransfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and are\nconsidered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition to\nsuch other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the State of\nDelaware (without reference to\n-3-\nthe conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or\nrelating to any provision of this Agreement shall be commenced only in a court of the State of Delaware (or, if appropriate, a federal court located\nwithin Delaware), and the Company and the Employee each consents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND AGREES\nTO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nUDATE.COM, INC.\nDate:\nBy: /s/ Martin Clifford\nMartin Clifford\nChief Operating Officer\nDate:\nBy: /s/ Anthony Dunn\nAnthony Dunn\n-4-
+3aeb57dd3d0c179a03480b814b66fb08.pdf	effective_date jurisdiction party term	EXHIBIT A\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated as of ___ , 200__, between Virgin Mobile USA, LLC, a Delaware limited liability\ncompany (“VMU”), and\n, a licensee of Virgin Enterprises Ltd., and a ___ corporation (the “Company”).\nRECITALS\nA. VMU may disclose valuable proprietary information to the Company relating to VMU’s Stash Card program (the “Stash Program”).\nB. VMU and the Company want to protect the confidentiality of, maintain their respective rights in, and prevent the unauthorized use and\ndisclosure of such information.\nVMU and the Company hereby agree as follows:\n1. Confidential Information. As used in this Agreement, “Confidential Information” means all information, currently existing or subsequently\ncreated during the term of the relationship between the parties, that a party and/or any of its Affiliates owns or controls that is not generally publicly\navailable, whether of a technical, business or other nature (including but not limited to (a) financial information, including pricing; (b) technical\ninformation, including research, development, specifications, procedures, algorithms, data, designs, and know-how; and (c) business information,\nincluding operations, objectives, management, assets, results, planning, marketing, timing, strategic partners, customers and products), that is\ndisclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) or that is otherwise learned by the Receiving Party, in\neither case in the course of the discussions or business dealings with the Disclosing Party that are the subject of this Agreement, and which has been\nidentified as being confidential or which the Receiving Party knows or has reason to know by the nature of the circumstances surrounding the\ndisclosure or receipt ought to be treated as confidential.\n2. Use and Ownership of Confidential Information. The Receiving Party, except as expressly provided in this Agreement, will not disclose\nConfidential Information to anyone other than its Representatives (as defined in Section 7 below) who have a need to know without the Disclosing\nParty’s prior written consent. In addition, the Receiving Party will not use, or permit others to use, Confidential Information for any purpose other\nthan its evaluation of a potential business opportunity between the parties and, if desired by the parties, negotiation and consummation of a business\ntransaction between the parties pursuant to a definitive agreement.\nThe Receiving Party will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of the Disclosing Party’s Confidential\nInformation, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature. All Confidential\nInformation will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by license or otherwise, to use\nthe Disclosing Party’s Confidential Information except as expressly provided herein.\n3. Exceptions. The obligations of Section 2 with respect to confidentiality and use will not apply to any information which (i) at the time of\ndisclosure was or thereafter becomes publicly\nVI\navailable without breach of this Agreement; (ii) was rightfully known to the Receiving Party prior to its receipt from the Disclosing Party; (iii) is\nrightfully received from a third party that, to the knowledge of the Receiving Party, did not acquire or disclose such information by a wrongful or\ntortious act; or (iv) was developed by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party.\n4. Disclosures to Governmental Entities. If the Receiving Party becomes legally obligated to disclose Confidential Information of the Disclosing\nParty by law, regulation or any governmental entity with jurisdiction over it, including any court of competent jurisdiction, the Receiving Party will\ngive the Disclosing Party prompt written notice. Such notice must include, without limitation, identification of the information to be so disclosed and\na copy of the order or reference to applicable law or regulation. The Receiving Party will disclose only such information as it reasonably deems is\nlegally required and will use reasonable efforts to obtain confidential treatment for any Confidential Information that is so disclosed.\n5. Compliance with Export Laws. Both parties will comply with all United States export control laws and regulations as they currently exist and as\nthey may be amended from time to time that are applicable to Confidential Information.\n6. No Required Disclosure or Warranties. Nothing in this Agreement shall be construed as an obligation for either party to disclose information or\nevaluation materials to the other party. The Disclosing Party shall not be considered to have made or make any representation or warranty as to the\naccuracy or completeness of any information provided hereunder. The Receiving Party and its Affiliates will be responsible for conducting and\ncompleting its own independent investigation, evaluation and due diligence relative to engaging in a transaction with the Disclosing Party.\n7. Receiving Party Representatives. The Receiving Party will restrict the possession, knowledge, development and use of Confidential Information\nof the Disclosing Party to its employees, directors, officers, consultants, lawyers, and entities controlled by or controlling it (collectively,\n“Representatives”) who have a need to know Confidential Information in connection with the purposes set forth in Section 2 and who are under\nobligations restricting disclosure and use of such Confidential Information consistent with the requirements of this Agreement. The Receiving\nParty’s Representatives will have access only to the Confidential Information they need for such purposes. The Receiving Party will be liable for any\nbreach of this Agreement by its Representatives and will promptly notify the Disclosing Party of any such breach.\n8. Return of Confidential Information. In the event that the parties determine not to proceed with discussions with respect to the business\nopportunity or upon the Disclosing Party’s written request at any time, the Receiving Party will promptly return or destroy (or, in the case of\nelectronic embodiments, permanently erase) all tangible material embodying Confidential Information (in any form and including, without\nlimitation, all summaries, copies and excerpts of Confidential Information) in its possession or under its control.\n9. Independent Development. The Disclosing Party acknowledges that the Receiving Party may currently or in the future be developing products or\ninformation internally, or receiving\nVII\ninformation from or having products or information developed by other parties, that are similar to the Confidential Information. Accordingly, except\nfor its express obligations under this Agreement with respect to Confidential Information of the Disclosing Party, nothing in this Agreement will be\nconstrued as restricting the Receiving Party from developing or having developed for it products, concepts, systems or techniques that are similar to\nor compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information.\n10. Injunctive Relief. The Receiving Party acknowledges that disclosure or use of Disclosing Party’s Confidential Information in violation of this\nAgreement may cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an inadequate remedy.\nThe Receiving Party therefore agrees that the Disclosing Party will be entitled, in addition to its other rights and remedies, to such injunctive or\nequitable relief for any violation of this Agreement as may be deemed proper by a court of competent jurisdiction.\n11. Limited Relationship. This Agreement does not create a joint venture, partnership or other formal business relationship or entity of any kind, or\nan obligation to form any such relationship or entity. Each party will act as an independent contractor and not as an agent of the other party for any\npurpose, and neither will have the authority to bind the other in the absence of a definitive agreement governing the prospective transaction.\n12. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof\nand supersedes all prior oral and written understandings with respect to such subject matter. This Agreement may be amended or modified only with\nthe mutual written consent of the parties.\n13. Term and Termination. Subject to the provisions below regarding expiration and termination, the terms of this Agreement shall remain in full\nforce notwithstanding the completion of the parties’ evaluations or the achievement or abandonment of the purpose of this Agreement, the\ntermination of the parties’ relationship, or the return of all tangible materials embodying Confidential Information. This Agreement is intended to\ncover Confidential Information disclosed or received by either party prior or subsequent to the date of this Agreement in the course of the\ndiscussions or business dealings that are the subject of this Agreement. Either party may terminate this Agreement by giving the other party written\nnotice of termination at the address set forth in the signature blocks below (except that in the case of VMU, such notice shall be marked to the\nattention of General Counsel), and unless otherwise earlier terminated, this Agreement will automatically expire two (2) years from the date first\nwritten above; provided that each party’s obligations under Sections 2, 4 and 7 (subject to the exceptions of Section 3) with respect to the other\nparty’s Confidential Information disclosed or received prior to termination or expiration will survive for two (2) additional years following the\nexpiration or termination of this Agreement, and the provisions of Sections 5-6 and 8-16 shall survive any such expiration or termination.\n14. Nonwaiver. It is understood that any failure or delay by either party to enforce such party’s rights, powers or privileges hereunder, including,\nwithout limitation, the other party’s strict performance of any provision of this Agreement, will not constitute a waiver of its right to subsequently\nenforce such provision or any other provision of this Agreement.\nVIII\n15. Attorney Fees. In the event any court action is commenced by one party against the other with respect to this Agreement, the substantially\nprevailing party will be entitled to recover its out-of-pocket and court costs and reasonable attorney fees.\n16. Miscellaneous. This Agreement will be governed by laws of the State of New York, may be executed in counterpart copies, and, in the absence\nof an original signature, faxed signatures will be considered the equivalent of an original signature. Each party hereby waives its right to a jury trial\nfor any claims that may arise out of this Agreement. If a provision of this Agreement is held invalid under any applicable law, such invalidity will\nnot affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this\nAgreement will be deemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform\nany and all terms or conditions to give them such effect. Neither party may assign or transfer this Agreement or any of its duties under this\nAgreement without the other party’s prior written consent, except that each party may assign this Agreement to an Affiliate or a successor entity in\nconnection with a public offering of securities, but no such assignment shall relieve the assigning party of its obligations hereunder. Any assignment\nor attempted assignment without the required prior written consent shall be void. The terms of this Agreement shall be binding upon and shall inure\nto the benefit of the successors and permitted assigns of the parties hereto.\nThe parties have executed this Agreement on the date first written above.\nVirgin Mobile USA, LLC\nBy:\nName:\nTitle:\nDate:\nMailing Address:\n10 Independence Blvd.\nWarren, New Jersey 07059\nCompany:\nBy:\nName:\nTitle:\nDate:\nMailing Address:\nIX	EXHIBIT A\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated as of ___, 200__, between Virgin Mobile USA, LLC, a Delaware limited liability\ncompany (“VMU”), and , a licensee of Virgin Enterprises Ltd., and a ___ corporation (the “Company”).\nRECITALS\nA. VMU may disclose valuable proprietary information to the Company relating to VMU’s Stash Card program (the “Stash Program”).\nB. VMU and the Company want to protect the confidentiality of, maintain their respective rights in, and prevent the unauthorized use and\ndisclosure of such information.\nVMU and the Company hereby agree as follows:\n1. Confidential Information. As used in this Agreement, “Confidential Information” means all information, currently existing or subsequently\ncreated during the term of the relationship between the parties, that a party and/or any of its Affiliates owns or controls that is not generally publicly\navailable, whether of a technical, business or other nature (including but not limited to (a) financial information, including pricing; (b) technical\ninformation, including research, development, specifications, procedures, algorithms, data, designs, and know-how; and (c) business information,\nincluding operations, objectives, management, assets, results, planning, marketing, timing, strategic partners, customers and products), that is\ndisclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) or that is otherwise learned by the Receiving Party, in\neither case in the course of the discussions or business dealings with the Disclosing Party that are the subject of this Agreement, and which has been\nidentified as being confidential or which the Receiving Party knows or has reason to know by the nature of the circumstances surrounding the\ndisclosure or receipt ought to be treated as confidential.\n2. Use and Ownership of Confidential Information. The Receiving Party, except as expressly provided in this Agreement, will not disclose\nConfidential Information to anyone other than its Representatives (as defined in Section 7 below) who have a need to know without the Disclosing\nParty’s prior written consent. In addition, the Receiving Party will not use, or permit others to use, Confidential Information for any purpose other\nthan its evaluation of a potential business opportunity between the parties and, if desired by the parties, negotiation and consummation of a business\ntransaction between the parties pursuant to a definitive agreement.\nThe Receiving Party will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of the Disclosing Party’s Confidential\nInformation, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature. All Confidential\nInformation will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by license or otherwise, to use\nthe Disclosing Party’s Confidential Information except as expressly provided herein.\n3. Exceptions. The obligations of Section 2 with respect to confidentiality and use will not apply to any information which (i) at the time of\ndisclosure was or thereafter becomes publicly\nVI\navailable without breach of this Agreement; (ii) was rightfully known to the Receiving Party prior to its receipt from the Disclosing Party; (iii) is\nrightfully received from a third party that, to the knowledge of the Receiving Party, did not acquire or disclose such information by a wrongful or\ntortious act; or (iv) was developed by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party.\n4. Disclosures to Governmental Entities. If the Receiving Party becomes legally obligated to disclose Confidential Information of the Disclosing\nParty by law, regulation or any governmental entity with jurisdiction over it, including any court of competent jurisdiction, the Receiving Party will\ngive the Disclosing Party prompt written notice. Such notice must include, without limitation, identification of the information to be so disclosed and\na copy of the order or reference to applicable law or regulation. The Receiving Party will disclose only such information as it reasonably deems is\nlegally required and will use reasonable efforts to obtain confidential treatment for any Confidential Information that is so disclosed.\n5. Compliance with Export Laws. Both parties will comply with all United States export control laws and regulations as they currently exist and as\nthey may be amended from time to time that are applicable to Confidential Information.\n6. No Required Disclosure or Warranties. Nothing in this Agreement shall be construed as an obligation for either party to disclose information or\nevaluation materials to the other party. The Disclosing Party shall not be considered to have made or make any representation or warranty as to the\naccuracy or completeness of any information provided hereunder. The Receiving Party and its Affiliates will be responsible for conducting and\ncompleting its own independent investigation, evaluation and due diligence relative to engaging in a transaction with the Disclosing Party.\n7. Receiving Party Representatives. The Receiving Party will restrict the possession, knowledge, development and use of Confidential Information\nof the Disclosing Party to its employees, directors, officers, consultants, lawyers, and entities controlled by or controlling it (collectively,\n“Representatives”) who have a need to know Confidential Information in connection with the purposes set forth in Section 2 and who are under\nobligations restricting disclosure and use of such Confidential Information consistent with the requirements of this Agreement. The Receiving\nParty’s Representatives will have access only to the Confidential Information they need for such purposes. The Receiving Party will be liable for any\nbreach of this Agreement by its Representatives and will promptly notify the Disclosing Party of any such breach.\n8. Return of Confidential Information. In the event that the parties determine not to proceed with discussions with respect to the business\nopportunity or upon the Disclosing Party’s written request at any time, the Receiving Party will promptly return or destroy (or, in the case of\nelectronic embodiments, permanently erase) all tangible material embodying Confidential Information (in any form and including, without\nlimitation, all summaries, copies and excerpts of Confidential Information) in its possession or under its control.\n9. Independent Development. The Disclosing Party acknowledges that the Receiving Party may currently or in the future be developing products or\ninformation internally, or receiving\nVII\ninformation from or having products or information developed by other parties, that are similar to the Confidential Information. Accordingly, except\nfor its express obligations under this Agreement with respect to Confidential Information of the Disclosing Party, nothing in this Agreement will be\nconstrued as restricting the Receiving Party from developing or having developed for it products, concepts, systems or techniques that are similar to\nor compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information.\n10. Injunctive Relief. The Receiving Party acknowledges that disclosure or use of Disclosing Party’s Confidential Information in violation of this\nAgreement may cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an inadequate remedy.\nThe Receiving Party therefore agrees that the Disclosing Party will be entitled, in addition to its other rights and remedies, to such injunctive or\nequitable relief for any violation of this Agreement as may be deemed proper by a court of competent jurisdiction.\n11. Limited Relationship. This Agreement does not create a joint venture, partnership or other formal business relationship or entity of any kind, or\nan obligation to form any such relationship or entity. Each party will act as an independent contractor and not as an agent of the other party for any\npurpose, and neither will have the authority to bind the other in the absence of a definitive agreement governing the prospective transaction.\n12. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof\nand supersedes all prior oral and written understandings with respect to such subject matter. This Agreement may be amended or modified only with\nthe mutual written consent of the parties.\n13. Term and Termination. Subject to the provisions below regarding expiration and termination, the terms of this Agreement shall remain in full\nforce notwithstanding the completion of the parties’ evaluations or the achievement or abandonment of the purpose of this Agreement, the\ntermination of the parties’ relationship, or the return of all tangible materials embodying Confidential Information. This Agreement is intended to\ncover Confidential Information disclosed or received by either party prior or subsequent to the date of this Agreement in the course of the\ndiscussions or business dealings that are the subject of this Agreement. Either party may terminate this Agreement by giving the other party written\nnotice of termination at the address set forth in the signature blocks below (except that in the case of VMU, such notice shall be marked to the\nattention of General Counsel), and unless otherwise earlier terminated, this Agreement will automatically expire two (2) years from the date first\nwritten above; provided that each party’s obligations under Sections 2, 4 and 7 (subject to the exceptions of Section 3) with respect to the other\nparty’s Confidential Information disclosed or received prior to termination or expiration will survive for two (2) additional years following the\nexpiration or termination of this Agreement, and the provisions of Sections 5-6 and 8-16 shall survive any such expiration or termination.\n14. Nonwaiver. It is understood that any failure or delay by either party to enforce such party’s rights, powers or privileges hereunder, including,\nwithout limitation, the other party’s strict performance of any provision of this Agreement, will not constitute a waiver of its right to subsequently\nenforce such provision or any other provision of this Agreement.\nVIII\n15. Attorney Fees. In the event any court action is commenced by one party against the other with respect to this Agreement, the substantially\nprevailing party will be entitled to recover its out-of-pocket and court costs and reasonable attorney fees.\n16. Miscellaneous. This Agreement will be governed by laws of the State of New York, may be executed in counterpart copies, and, in the absence\nof an original signature, faxed signatures will be considered the equivalent of an original signature. Each party hereby waives its right to a jury trial\nfor any claims that may arise out of this Agreement. If a provision of this Agreement is held invalid under any applicable law, such invalidity will\nnot affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this\nAgreement will be deemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform\nany and all terms or conditions to give them such effect. Neither party may assign or transfer this Agreement or any of its duties under this\nAgreement without the other party’s prior written consent, except that each party may assign this Agreement to an Affiliate or a successor entity in\nconnection with a public offering of securities, but no such assignment shall relieve the assigning party of its obligations hereunder. Any assignment\nor attempted assignment without the required prior written consent shall be void. The terms of this Agreement shall be binding upon and shall inure\nto the benefit of the successors and permitted assigns of the parties hereto.\nThe parties have executed this Agreement on the date first written above.\nVirgin Mobile USA, LLC\nBy:\nName:\nTitle:\nDate:\nMailing Address:\n10 Independence Blvd.\nWarren, New Jersey 07059\nCompany:\nBy:\nName:\nTitle:\nDate:\nMailing Address:\nIX	EXHIBIT A\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this "Agreement") is dated as of 200_, between Virgin Mobile USA, LLC, a Delaware limited liability\ncompany ("VMU"), and a licensee of Virgin Enterprises Ltd., and a corporation (the "Company").\nRECITALS\nA. VMU may disclose valuable proprietary information to the Company relating to VMU's Stash Card program (the "Stash Program").\nB.\nVMU and the Company want to protect the confidentiality of, maintain their respective rights in, and prevent the unauthorized use and\ndisclosure of such information.\nVMU and the Company hereby agree as follows:\n1. Confidential Information. As used in this Agreement, "Confidential Information" means all information, currently existing or subsequently\ncreated during the term of the relationship between the parties, that a party and/or any of its Affiliates owns or controls that is not generally publicly\navailable, whether of a technical, business or other nature (including but not limited to (a) financial information, including pricing; (b) technical\ninformation, including research, development, specifications, procedures, algorithms, data, designs, and know-how; and (c) business information,\nincluding operations, objectives, management, assets, results, planning, marketing, timing, strategic partners, customers and products), that is\ndisclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") or that is otherwise learned by the Receiving Party, in\neither case in the course of the discussions or business dealings with the Disclosing Party that are the subject of this Agreement, and which has been\nidentified as being confidential or which the Receiving Party knows or has reason to know by the nature of the circumstances surrounding the\ndisclosure or receipt ought to be treated as confidential.\n2. Use and Ownership of Confidential Information. The Receiving Party, except as expressly provided in this Agreement, will not disclose\nConfidential Information to anyone other than its Representatives (as defined in Section 7 below) who have a need to know without the Disclosing\nParty's prior written consent. In addition, the Receiving Party will not use, or permit others to use, Confidential Information for any purpose other\nthan its evaluation of a potential business opportunity between the parties and, if desired by the parties, negotiation and consummation of a business\ntransaction between the parties pursuant to a definitive agreement.\nThe Receiving Party will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of the Disclosing Party's Confidential\nInformation, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature. All Confidential\nInformation will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by license or otherwise, to use\nthe Disclosing Party's Confidential Information except as expressly provided herein.\n3. Exceptions. The obligations of Section 2 with respect to confidentiality and use will not apply to any information which (i) at the time of\ndisclosure was or thereafter becomes publicly\nVI\navailable without breach of this Agreement; (ii) was rightfully known to the Receiving Party prior to its receipt from the Disclosing Party; (iii)\nis\nrightfully received from a third party that, to the knowledge of the Receiving Party, did not acquire or disclose such information by a wrongful\nor\ntortious act; or (iv) was developed by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party.\n4. Disclosures to Governmental Entities. If the Receiving Party becomes legally obligated to disclose Confidential Information of the Disclosing\nParty by law, regulation or any governmental entity with jurisdiction over it, including any court of competent jurisdiction, the Receiving Party will\ngive the Disclosing Party prompt written notice. Such notice must include, without limitation, identification of the information to be so disclosed and\na\ncopy of the order or reference to applicable law or regulation. The Receiving Party will disclose only such information as it reasonably deems is\nlegally required and will use reasonable efforts to obtain confidential treatment for any Confidential Information that is so disclosed.\n5. Compliance with Export Laws. Both parties will comply with all United States export control laws and regulations as they currently exist and as\nthey may be amended from time to time that are applicable to Confidential Information.\n6. No Required Disclosure or Warranties. Nothing in this Agreement shall be construed as an obligation for either party to disclose information or\nevaluation materials to the other party. The Disclosing Party shall not be considered to have made or make any representation or warranty as to the\naccuracy or completeness of any information provided hereunder. The Receiving Party and its Affiliates will be responsible for conducting and\ncompleting its own independent investigation, evaluation and due diligence relative to engaging in a transaction with the Disclosing Party.\n7. Receiving Party Representatives. The Receiving Party will restrict the possession, knowledge, development and use of Confidential Information\nof the Disclosing Party to its employees, directors, officers, consultants, lawyers, and entities controlled by or controlling it (collectively,\n"Representatives") who have a need to know Confidential Information in connection with the purposes set forth in Section 2 and who are under\nobligations restricting disclosure and use of such Confidential Information consistent with the requirements of this Agreement. The Receiving\nParty's Representatives will have access only to the Confidential Information they need for such purposes. The Receiving Party will be liable for any\nbreach of this Agreement by its Representatives and will promptly notify the Disclosing Party of any such breach.\n8. Return of Confidential Information. In the event that the parties determine not to proceed with discussions with respect to the business\nopportunity or upon the Disclosing Party's written request at any time, the Receiving Party will promptly return or destroy (or, in the case of\nelectronic embodiments, permanently erase) all tangible material embodying Confidential Information (in any form and including, without\nlimitation, all summaries, copies and excerpts of Confidential Information) in its possession or under its control.\n9.\nIndependent Development. The Disclosing Party acknowledges that the Receiving Party may currently or in the future be developing products or\ninformation internally, or receiving\nVII\ninformation from or having products or information developed by other parties, that are similar to the Confidential Information. Accordingly, except\nfor its express obligations under this Agreement with respect to Confidential Information of the Disclosing Party, nothing in this Agreement will\nbe\nconstrued as restricting the Receiving Party from developing or having developed for it products, concepts, systems or techniques that are similar\nto\nor compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information.\n10. Injunctive Relief. The Receiving Party acknowledges that disclosure or use of Disclosing Party's Confidential Information in violation of this\nAgreement may cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an inadequate remedy.\nThe Receiving Party therefore agrees that the Disclosing Party will be entitled, in addition to its other rights and remedies, to such injunctive\nor\nequitable relief for any violation of this Agreement as may be deemed proper by a court of competent jurisdiction.\n11. Limited Relationship. This Agreement does not create a joint venture, partnership or other formal business relationship or entity of any kind,\nor\nan obligation to form any such relationship or entity. Each party will act as an independent contractor and not as an agent of the other party for any\npurpose, and neither will have the authority to bind the other in the absence of a definitive agreement governing the prospective transaction.\n12. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof\nand supersedes all prior oral and written understandings with respect to such subject matter. This Agreement may be amended or modified only with\nthe mutual written consent of the parties.\n13. Term and Termination. Subject to the provisions below regarding expiration and termination, the terms of this Agreement shall remain in full\nforce notwithstanding the completion of the parties' evaluations or the achievement or abandonment of the purpose of this Agreement, the\ntermination of the parties' relationship, or the return of all tangible materials embodying Confidential Information. This Agreement is intended to\ncover Confidential Information disclosed or received by either party prior or subsequent to the date of this Agreement in the course of the\ndiscussions or business dealings that are the subject of this Agreement. Either party may terminate this Agreement by giving the other party written\nnotice of termination at the address set forth in the signature blocks below (except that in the case of VMU, such notice shall be marked to the\nattention of General Counsel), and unless otherwise earlier terminated, this Agreement will automatically expire two (2) years from the date first\nwritten above; provided that each party's obligations under Sections 2, 4 and 7 (subject to the exceptions of Section 3) with respect to the other\nparty's Confidential Information disclosed or received prior to termination or expiration will survive for two (2) additional years following the\nexpiration or termination of this Agreement, and the provisions of Sections 5-6 and 8-16 shall survive any such expiration or termination\n14. Nonwaiver. It is understood that any failure or delay by either party to enforce such party's rights, powers or privileges hereunder, including,\nwithout limitation, the other party's strict performance of any provision of this Agreement, will not constitute a waiver of its right to subsequently\nenforce such provision or any other provision of this Agreement.\nVIII\n15. Attorney Fees. In the event any court action is commenced by one party against the other with respect to this Agreement, the substantially\nprevailing party will be entitled to recover its out-of-pocket and court costs and reasonable attorney fees.\n16. Miscellaneous. This Agreement will be governed by laws of the State of New York, may be executed in counterpart copies, and, in the absence\nof an original signature, faxed signatures will be considered the equivalent of an original signature. Each party hereby waives its right to a jury trial\nfor any claims that may arise out of this Agreement. If a provision of this Agreement is held invalid under any applicable law, such invalidity\nwill\nnot affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this\nAgreement will be deemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform\nany and all terms or conditions to give them such effect. Neither party may assign or transfer this Agreement or any of its duties under this\nAgreement without the other party's prior written consent, except that each party may assign this Agreement to an Affiliate or a successor entity in\nconnection with a public offering of securities, but no such assignment shall relieve the assigning party of its obligations hereunder. Any assignment\nor attempted assignment without the required prior written consent shall be void. The terms of this Agreement shall be binding upon and shall inure\nto the benefit of the successors and permitted assigns of the parties hereto.\nThe parties have executed this Agreement on the date first written above.\nVirgin Mobile USA, LLC\nBy:\nName:\nTitle:\nDate:\nMailing Address:\n10 Independence Blvd.\nWarren, New Jersey 07059\nCompany:\nBy:\nName:\nTitle:\nDate:\nMailing Address:\nIX	EXHIBIT A\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated as of ___ , 200__, between Virgin Mobile USA, LLC, a Delaware limited liability\ncompany (“VMU”), and\n, a licensee of Virgin Enterprises Ltd., and a ___ corporation (the “Company”).\nRECITALS\nA. VMU may disclose valuable proprietary information to the Company relating to VMU’s Stash Card program (the “Stash Program”).\nB. VMU and the Company want to protect the confidentiality of, maintain their respective rights in, and prevent the unauthorized use and\ndisclosure of such information.\nVMU and the Company hereby agree as follows:\n1. Confidential Information. As used in this Agreement, “Confidential Information” means all information, currently existing or subsequently\ncreated during the term of the relationship between the parties, that a party and/or any of its Affiliates owns or controls that is not generally publicly\navailable, whether of a technical, business or other nature (including but not limited to (a) financial information, including pricing; (b) technical\ninformation, including research, development, specifications, procedures, algorithms, data, designs, and know-how; and (c) business information,\nincluding operations, objectives, management, assets, results, planning, marketing, timing, strategic partners, customers and products), that is\ndisclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) or that is otherwise learned by the Receiving Party, in\neither case in the course of the discussions or business dealings with the Disclosing Party that are the subject of this Agreement, and which has been\nidentified as being confidential or which the Receiving Party knows or has reason to know by the nature of the circumstances surrounding the\ndisclosure or receipt ought to be treated as confidential.\n2. Use and Ownership of Confidential Information. The Receiving Party, except as expressly provided in this Agreement, will not disclose\nConfidential Information to anyone other than its Representatives (as defined in Section 7 below) who have a need to know without the Disclosing\nParty’s prior written consent. In addition, the Receiving Party will not use, or permit others to use, Confidential Information for any purpose other\nthan its evaluation of a potential business opportunity between the parties and, if desired by the parties, negotiation and consummation of a business\ntransaction between the parties pursuant to a definitive agreement.\nThe Receiving Party will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of the Disclosing Party’s Confidential\nInformation, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature. All Confidential\nInformation will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by license or otherwise, to use\nthe Disclosing Party’s Confidential Information except as expressly provided herein.\n3. Exceptions. The obligations of Section 2 with respect to confidentiality and use will not apply to any information which (i) at the time of\ndisclosure was or thereafter becomes publicly\nVI\navailable without breach of this Agreement; (ii) was rightfully known to the Receiving Party prior to its receipt from the Disclosing Party; (iii) is\nrightfully received from a third party that, to the knowledge of the Receiving Party, did not acquire or disclose such information by a wrongful or\ntortious act; or (iv) was developed by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party.\n4. Disclosures to Governmental Entities. If the Receiving Party becomes legally obligated to disclose Confidential Information of the Disclosing\nParty by law, regulation or any governmental entity with jurisdiction over it, including any court of competent jurisdiction, the Receiving Party will\ngive the Disclosing Party prompt written notice. Such notice must include, without limitation, identification of the information to be so disclosed and\na copy of the order or reference to applicable law or regulation. The Receiving Party will disclose only such information as it reasonably deems is\nlegally required and will use reasonable efforts to obtain confidential treatment for any Confidential Information that is so disclosed.\n5. Compliance with Export Laws. Both parties will comply with all United States export control laws and regulations as they currently exist and as\nthey may be amended from time to time that are applicable to Confidential Information.\n6. No Required Disclosure or Warranties. Nothing in this Agreement shall be construed as an obligation for either party to disclose information or\nevaluation materials to the other party. The Disclosing Party shall not be considered to have made or make any representation or warranty as to the\naccuracy or completeness of any information provided hereunder. The Receiving Party and its Affiliates will be responsible for conducting and\ncompleting its own independent investigation, evaluation and due diligence relative to engaging in a transaction with the Disclosing Party.\n7. Receiving Party Representatives. The Receiving Party will restrict the possession, knowledge, development and use of Confidential Information\nof the Disclosing Party to its employees, directors, officers, consultants, lawyers, and entities controlled by or controlling it (collectively,\n“Representatives”) who have a need to know Confidential Information in connection with the purposes set forth in Section 2 and who are under\nobligations restricting disclosure and use of such Confidential Information consistent with the requirements of this Agreement. The Receiving\nParty’s Representatives will have access only to the Confidential Information they need for such purposes. The Receiving Party will be liable for any\nbreach of this Agreement by its Representatives and will promptly notify the Disclosing Party of any such breach.\n8. Return of Confidential Information. In the event that the parties determine not to proceed with discussions with respect to the business\nopportunity or upon the Disclosing Party’s written request at any time, the Receiving Party will promptly return or destroy (or, in the case of\nelectronic embodiments, permanently erase) all tangible material embodying Confidential Information (in any form and including, without\nlimitation, all summaries, copies and excerpts of Confidential Information) in its possession or under its control.\n9. Independent Development. The Disclosing Party acknowledges that the Receiving Party may currently or in the future be developing products or\ninformation internally, or receiving\nVII\ninformation from or having products or information developed by other parties, that are similar to the Confidential Information. Accordingly, except\nfor its express obligations under this Agreement with respect to Confidential Information of the Disclosing Party, nothing in this Agreement will be\nconstrued as restricting the Receiving Party from developing or having developed for it products, concepts, systems or techniques that are similar to\nor compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information.\n10. Injunctive Relief. The Receiving Party acknowledges that disclosure or use of Disclosing Party’s Confidential Information in violation of this\nAgreement may cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an inadequate remedy.\nThe Receiving Party therefore agrees that the Disclosing Party will be entitled, in addition to its other rights and remedies, to such injunctive or\nequitable relief for any violation of this Agreement as may be deemed proper by a court of competent jurisdiction.\n11. Limited Relationship. This Agreement does not create a joint venture, partnership or other formal business relationship or entity of any kind, or\nan obligation to form any such relationship or entity. Each party will act as an independent contractor and not as an agent of the other party for any\npurpose, and neither will have the authority to bind the other in the absence of a definitive agreement governing the prospective transaction.\n12. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof\nand supersedes all prior oral and written understandings with respect to such subject matter. This Agreement may be amended or modified only with\nthe mutual written consent of the parties.\n13. Term and Termination. Subject to the provisions below regarding expiration and termination, the terms of this Agreement shall remain in full\nforce notwithstanding the completion of the parties’ evaluations or the achievement or abandonment of the purpose of this Agreement, the\ntermination of the parties’ relationship, or the return of all tangible materials embodying Confidential Information. This Agreement is intended to\ncover Confidential Information disclosed or received by either party prior or subsequent to the date of this Agreement in the course of the\ndiscussions or business dealings that are the subject of this Agreement. Either party may terminate this Agreement by giving the other party written\nnotice of termination at the address set forth in the signature blocks below (except that in the case of VMU, such notice shall be marked to the\nattention of General Counsel), and unless otherwise earlier terminated, this Agreement will automatically expire two (2) years from the date first\nwritten above; provided that each party’s obligations under Sections 2, 4 and 7 (subject to the exceptions of Section 3) with respect to the other\nparty’s Confidential Information disclosed or received prior to termination or expiration will survive for two (2) additional years following the\nexpiration or termination of this Agreement, and the provisions of Sections 5-6 and 8-16 shall survive any such expiration or termination.\n14. Nonwaiver. It is understood that any failure or delay by either party to enforce such party’s rights, powers or privileges hereunder, including,\nwithout limitation, the other party’s strict performance of any provision of this Agreement, will not constitute a waiver of its right to subsequently\nenforce such provision or any other provision of this Agreement.\nVIII\n15. Attorney Fees. In the event any court action is commenced by one party against the other with respect to this Agreement, the substantially\nprevailing party will be entitled to recover its out-of-pocket and court costs and reasonable attorney fees.\n16. Miscellaneous. This Agreement will be governed by laws of the State of New York, may be executed in counterpart copies, and, in the absence\nof an original signature, faxed signatures will be considered the equivalent of an original signature. Each party hereby waives its right to a jury trial\nfor any claims that may arise out of this Agreement. If a provision of this Agreement is held invalid under any applicable law, such invalidity will\nnot affect any other provision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this\nAgreement will be deemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform\nany and all terms or conditions to give them such effect. Neither party may assign or transfer this Agreement or any of its duties under this\nAgreement without the other party’s prior written consent, except that each party may assign this Agreement to an Affiliate or a successor entity in\nconnection with a public offering of securities, but no such assignment shall relieve the assigning party of its obligations hereunder. Any assignment\nor attempted assignment without the required prior written consent shall be void. The terms of this Agreement shall be binding upon and shall inure\nto the benefit of the successors and permitted assigns of the parties hereto.\nThe parties have executed this Agreement on the date first written above.\nVirgin Mobile USA, LLC\nBy:\nName:\nTitle:\nDate:\nMailing Address:\n10 Independence Blvd.\nWarren, New Jersey 07059\nCompany:\nBy:\nName:\nTitle:\nDate:\nMailing Address:\nIX
+3e1a3a5f4a419e58024088fb81964bca.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 10 d319057dex99d2.htm CONFIDENTIALITY AGREEMENT, EFFECTIVE AS OF JANUARY 25,\n2012\nExhibit (d)(2)\nPERSONAL AND CONFIDENTIAL\nJanuary 25, 2012\nAsahi Kasei Corporation\n1-105 Kanda Jinbocho,\nChiyoda-ku, Tokyo 101-8101\nJapan\nAttn: Koji Fujiwara, Director & Primary Executive Officer\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction (the “Possible Transaction”) with ZOLL Medical Corporation (the “Company”), you\nhave requested information concerning the Company and its subsidiaries and affiliates. You acknowledge that this information is confidential and\nproprietary and may include trade secrets or other business information the disclosure of which could harm the Company and its subsidiaries. In\nconsideration for, and as a condition to, such information being made available to you and your Representatives, you agree to treat any information,\nwhether written or oral, concerning the Company or any of its subsidiaries, affiliates or divisions (whether prepared by the Company, its advisors or\notherwise) that is furnished to you by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with\nthe provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term “Evaluation Material”\nincludes, without limitation, all notes, analyses, compilations, Excel spread sheets, data, reports, studies, interpretations or other documents furnished\nto you or your Representatives (as defined below) or prepared by you or your Representatives to the extent such materials reflect or are based upon,\nin whole or in part, the Evaluation Material so furnished to you or your Representatives, and all “Confidential Information” of the Company under\nthe Mutual Nondisclosure Agreement, dated October 6, 2011, between you and the Company (the “Previous Nondisclosure Agreement”). The term\n“Evaluation Material” does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the\nCompany or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes generally available to the public other than\nas a result of a disclosure by you or your Representatives in violation of this letter agreement, or (c) has been or is independently developed by you\nor your Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement or the Previous Nondisclosure\nAgreement. For purposes of this letter agreement the term “Representatives” shall include your and your Affiliates’ directors, officers, employees,\nattorneys, accountants, financial advisors, consultants and other professional representatives and shall also include any of your sources of senior\nand/or subordinated debt financing. For purposes of this letter agreement the term “Affiliates” has the meaning given to it in Rule 12b-2 of the\nSecurities Exchange Act of 1934, as amended.\nYou hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating and negotiating the Possible\nTransaction between the Company and you and your Affiliates; provided, however, that the Evaluation Material may be disclosed (i) to your\nAffiliates and any of your Representatives who need to know such information for the sole purpose of evaluating and negotiating a Possible\nTransaction, and (ii) as the Company may otherwise consent in writing. All such Representatives and Affiliates shall (A) be informed by you of the\nconfidential nature of the Evaluation Material, (B) agree to keep the Evaluation Material strictly confidential, and (C) be advised of the terms of this\nletter agreement and agree to be bound by the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be\nresponsible for any breaches of any of the provisions of this letter agreement by any of your Affiliates and Representatives (it being understood that\nsuch responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Affiliates and\nRepresentatives with respect to such breach) and you agree to take all reasonable measures to restrain your Representatives from disclosure or\nimproper use of the Evaluation Material or from breaching or threatening to breach any other provision of this Agreement.\nYou hereby acknowledge that you, your Affiliates and your Representatives are aware that the Evaluation Material may contain material, non-public\ninformation about the Company and you hereby agree that you, your Affiliates and your Representatives will not purchase or sell any securities of\nthe Company while in possession of such information.\nNeither the Company nor you shall, and the Company and you each agree to cause your respective Affiliates and representatives, including in the\nCompany’s case, the Banker, not to, disclose without the written consent of the other party hereto, directly or indirectly, to any person (including any\ngovernmental agency, authority or official or any third party) either the fact that discussions or negotiations are taking place concerning a Possible\nTransaction with you or any of the terms, conditions or other facts with respect to a Possible Transaction with you, including the status thereof or\nthat Evaluation Material has been made available to you; provided that you and the Company may make such disclosures without the consent of the\nother party hereto if you are required to do so under applicable law or the applicable rules or regulations of any securities exchange or similar self-\nregulatory organization. Without limiting the generality of the foregoing, you further agree that you will not, directly or indirectly, share the\nEvaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to lead\nto such an agreement, arrangement or understanding with any other person, including other potential bidders regarding a Possible Transaction\ninvolving the Company without the prior written consent of the Company and only upon such person executing a confidentiality agreement in favor\nof the Company with terms and conditions consistent with this Agreement.\nNotwithstanding the foregoing, in the event you or any of your Affiliates or Representatives receive a request or are required (by deposition,\ninterrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose all or any part of the Evaluation Materials,\nyou or your Affiliates or Representatives, as the case may be, agree to (a) immediately notify the Company of the existence, terms and circumstances\nsurrounding such request or required disclosure, (b) consult with the Company on the advisability of taking legally available steps to resist or narrow\nsuch request or required disclosure, and (c) cooperate with the\nPage 2\nCompany, at the Company’s expense, in seeking a protective order or other appropriate remedy. In the event that such protective order or other\nremedy is not obtained or that the Company waives compliance with the provisions hereof, (i) you or your Affiliates or Representatives, as the case\nmay be, may disclose to any tribunal only that portion of the Evaluation Materials which you or your Affiliates or Representatives are advised by\ncounsel (in such counsel’s written opinion) is legally required to be disclosed, and you or your Affiliates or Representatives shall exercise reasonable\nbest efforts to obtain assurance that confidential treatment will be accorded such Evaluation Materials, and (ii) you or your Affiliates or\nRepresentatives shall not be liable for such disclosure. Further, notwithstanding anything in this paragraph to the contrary, you may make such\ndisclosures if you are required to do so under applicable law or the applicable rules or regulations of any securities exchange or similar self-\nregulatory organization.\nUnless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the\nPossible Transaction, will be submitted or directed exclusively to John P. Molner or Ivan A. Pirzada of Brown Brothers Harriman & Co. (the\n“Banker”). Contact information for the appropriate Banker representatives is included in Exhibit A to this letter agreement.\nYou agree that, for a period of two (2) years from the date hereof, neither you nor any of your Affiliates will, directly or indirectly, solicit for\nemployment or employ or cause to leave the employ of the Company or any of its subsidiaries any individual serving as (a) an officer of the\nCompany or any of its subsidiaries or (b) any employee of the Company or any of its subsidiaries with whom you have had contact, or who is\nspecifically identified to you, during your investigation of the Company and its business, in each case without obtaining the prior written consent of\nthe Company; provided that nothing herein shall restrict or preclude you from (A) making generalized solicitations or broad-based searches for\nemployees, (B) continuing your ordinary course hiring practices that are not targeted specifically at employees of the Company or (C) responding to\nany employee of the Company who contacts you regarding his or her own employment with you on his or her own initiative without any direct\nsolicitation by you other than any generalized search or ordinary course practice referred to in clause (A) or (B) above.\nYou hereby acknowledge that, unless otherwise agreed in writing by the Company, for a period of one (1) year from the date of this letter agreement,\nneither you nor any of your Representatives or Affiliates acting on your behalf or on behalf of other persons acting in concert with you will in any\nmanner, directly or indirectly: (a) propose, offer or effect (whether publicly or otherwise) (i) any merger, consolidation, business combination, tender\nor exchange offer, purchase of the Company’s material assets outside the ordinary course of business, stock or businesses, or similar transactions\ninvolving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company\n(collectively, a transaction specified in (a)(i) and (a)(ii) is referred to as a “Business Combination”); (b) (i) acquire “beneficial ownership” (as such\nterm is used in the rules of the Securities and Exchange Commission) of any securities (including in derivative form) of the Company, (ii) propose or\nseek, whether alone or in concert with others, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange\nCommission) or consents to vote any securities of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter\nto be voted upon by the stockholders of the Company; (c)\nPage 3\ndirectly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange\nCommission) (or discuss with any third party the potential formation of a group) with respect to any securities of the Company or a Business\nCombination involving the Company; or (d) take any action that could require the Company to make a public announcement regarding a potential\nBusiness Combination or any of the matters referred to in this paragraph; provided, however, that the restrictions set forth in this paragraph shall\nterminate immediately upon the public announcement by the Company or by a third party that the Company has entered into a definitive agreement\nwith such third party for a transaction involving a Business Combination. You also agree during such one (1) year period not to request, or solicit or\ninduce another person to request, the Company (or any of its Representatives), directly or indirectly, to amend, waive or publicize any provision of\nthis paragraph (including this sentence). Notwithstanding the foregoing, nothing in this Agreement shall limit your ability to make or submit in a\nconfidential, non-public manner to the board of directors of the Company, a bona fide written proposal relating to a Business Combination so long as\nyou do not make, or cause to be made, any public disclosure regarding such action and such action would not violate clause (d) above. You further\nagree that, subject to any applicable confidentiality or other similar restrictions, if at any time during such period, you or any of your Affiliates or\nRepresentatives are approached by any third party concerning your or their participation in a transaction involving any assets, indebtedness or\nbusiness of, or securities issued by, the Company or any of its subsidiaries, you will promptly inform the Company of the nature of such transaction\nand the parties involved.\nAlthough the Company has endeavored and will endeavor to include in the Evaluation Material information which it believes to be relevant for the\npurpose of your investigation, you understand that none of the Company, the Banker, or their respective Affiliates or Representatives have made or\nmake any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material in connection with matters\ncontemplated hereby. Only those representations and warranties that may be made to you in a definitive written agreement for a Possible\nTransaction, when, as and if executed and subject to such limitations and restrictions as may be specified therein, shall have any legal effect, and you\nagree that if you determine to engage in a Possible Transaction such determination will be based solely on the terms of such definitive written\nagreement and on your own investigation, analysis and assessment of the Possible Transaction. Except as provided in any such definitive written\nagreement, neither the Company nor any of its Affiliates or representatives shall have any liability to you or any other party, including, without\nlimitation, your Representatives, resulting from the use or selection of, or reliance on, Evaluation Material by you, your Affiliates or Representatives,\nother than as expressly provided herein.\nUpon the Company’s (directly or through the Banker) demand, you shall either promptly (a) destroy the Evaluation Material and any copies thereof,\nor (b) return to the Company all Evaluation Material and any copies thereof, and, in either case, confirm in writing to the Company that all such\nmaterial has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or\nelectronic format containing Evaluation Materials cannot be removed, erased or otherwise deleted from archival systems (also known as “computer\nor system back-ups”) but that such information will continue to be protected under the confidentiality requirements contained in this Agreement and\nyou and such Affiliates and Representatives shall continue to be bound by the obligations of\nPage 4\nconfidentiality hereunder. Notwithstanding the foregoing, you, your Affiliates and your Representatives may retain (i) one copy of any work product\nprepared by you or them that contains Evaluation Material to the extent required under applicable legal or regulatory requirements and (ii) one copy\nof the Evaluation Material at your outside legal counsels’ office to the extent required by your document retention policies; provided that you and\nsuch Affiliates and Representatives shall continue to be bound by the obligations of confidentiality hereunder.\nYou acknowledge and agree that money damages would not be a sufficient remedy for any breach (or threatened breach) of this letter agreement by\nyou or your Affiliates or Representatives and that the Company shall be entitled to equitable relief, including injunction and specific performance, as\na remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to\ncause its Affiliates and Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such\nremedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in\nequity.\nYou agree that unless and until a definitive agreement between the Company and you with respect to the Possible Transaction has been executed and\ndelivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to any transaction by virtue of this or\nany written or oral expression with respect to any Possible Transaction by any of its Affiliates and Representatives except for the matters specifically\nagreed to herein. For purposes of this letter agreement, the term “definitive agreement” does not include an executed letter of intent or any other\npreliminary written agreement, nor does it include any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be\nmodified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement.\nYou agree that this letter agreement supersedes all prior or contemporaneous agreements (including the Previous Nondisclosure Agreement),\nnegotiations or understandings between the parties regarding the subject matters hereof.\nYou acknowledge that, subject to the terms of this letter agreement, unless and until a definitive written agreement is entered into, (a) the Company\nand the Banker shall be free to conduct the process for a transaction as they in their sole discretion shall determine, (b) any procedures relating to\nsuch transaction may be changed at any time without notice to you or any other person, and (c) you shall not have any claims whatsoever against the\nCompany, the Banker or any of their respective Representatives arising out of or relating to a Possible Transaction.\nNo failure or delay by the Company or any of its representatives, on the one hand, or you or any of your Affiliates or Representatives, on the other\nhand, in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no modification hereof shall be\neffective, unless in writing and signed by an officer of the Company and/or you or other authorized person on its/your behalf.\nPage 5\nThe illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or\nenforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.\nExcept as otherwise provided in this letter agreement, the obligations hereunder shall terminate five years from the date hereof.\nThis letter agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts. The parties hereby\nirrevocably and unconditionally consent to the exclusive jurisdiction of the courts in the Commonwealth of Massachusetts and the United States\nDistrict Court for the District of the Commonwealth of Massachusetts for any action, suit or proceeding arising out of or relating to this letter\nagreement or the Possible Transaction, except as may otherwise be agreed in writing by the parties in the course of the Possible Transaction, and\nagree not to commence any action, suit or proceeding related thereto except in such courts.\nThis letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the\nsame agreement. One or more counterparts of this letter agreement may be delivered by telecopier or pdf electronic transmission, with the intention\nthat they shall have the same effect as an original counterpart hereof.\n[Signature Page Follows]\nPage 6\nVery truly yours,\nZOLL MEDICAL CORPORATION\nBy: /s/ Richard A. Packer\nName: Richard A. Packer\nTitle: CEO\nConfirmed and Agreed to:\nASAHI KASEI CORPORATION\nBy: /s/ Koji Fujiwara\nName: Koji Fujiwara\nTitle: Director & Primary Executive Officer\nEXHIBIT A\nBrown Brothers Harriman & Co. Contact Information\nAll inquiries should be directed to any of the individuals listed below.\n, Partner\nBrown Brothers Harriman & Co\n140 Broadway\nNew York, NY 10005-1101\nPhone:\nFax:\nEmail:\n, Senior Vice President\nBrown Brothers Harriman & Co.\n40 Water Street\nBoston, MA 02109\nPhone:\nFax:\nEmail:	EX-99.(D)(2) 10 d319057dex99d2.htm CONFIDENTIALITY AGREEMENT, EFFECTIVE AS OF JANUARY 25,\n2012\nExhibit (d)(2)\nPERSONAL AND CONFIDENTIAL\nJanuary 25, 2012\nAsahi Kasei Corporation\n1-105 Kanda Jinbocho,\nChiyoda-ku, Tokyo 101-8101\nJapan\nAttn: Koji Fujiwara, Director & Primary Executive Officer\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction (the “Possible Transaction”) with ZOLL Medical Corporation (the “Company”), you\nhave requested information concerning the Company and its subsidiaries and affiliates. You acknowledge that this information is confidential and\nproprietary and may include trade secrets or other business information the disclosure of which could harm the Company and its subsidiaries. In\nconsideration for, and as a condition to, such information being made available to you and your Representatives, you agree to treat any information,\nwhether written or oral, concerning the Company or any of its subsidiaries, affiliates or divisions (whether prepared by the Company, its advisors or\notherwise) that is furnished to you by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with\nthe provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term “Evaluation Material”\nincludes, without limitation, all notes, analyses, compilations, Excel spread sheets, data, reports, studies, interpretations or other documents furnished\nto you or your Representatives (as defined below) or prepared by you or your Representatives to the extent such materials reflect or are based upon,\nin whole or in part, the Evaluation Material so furnished to you or your Representatives, and all “Confidential Information” of the Company under\nthe Mutual Nondisclosure Agreement, dated October 6, 2011, between you and the Company (the “Previous Nondisclosure Agreement”). The term\n“Evaluation Material” does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the\nCompany or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes generally available to the public other than\nas a result of a disclosure by you or your Representatives in violation of this letter agreement, or (c) has been or is independently developed by you\nor your Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement or the Previous Nondisclosure\nAgreement. For purposes of this letter agreement the term “Representatives” shall include your and your Affiliates’ directors, officers, employees,\nattorneys, accountants, financial advisors, consultants and other professional representatives and shall also include any of your sources of senior\nand/or subordinated debt financing. For purposes of this letter agreement the term “Affiliates” has the meaning given to it in Rule 12b-2 of the\nSecurities Exchange Act of 1934, as amended.\n \nYou hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating and negotiating the Possible\nTransaction between the Company and you and your Affiliates; provided, however, that the Evaluation Material may be disclosed (i) to your\nAffiliates and any of your Representatives who need to know such information for the sole purpose of evaluating and negotiating a Possible\nTransaction, and (ii) as the Company may otherwise consent in writing. All such Representatives and Affiliates shall (A) be informed by you of the\nconfidential nature of the Evaluation Material, (B) agree to keep the Evaluation Material strictly confidential, and (C) be advised of the terms of this\nletter agreement and agree to be bound by the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be\nresponsible for any breaches of any of the provisions of this letter agreement by any of your Affiliates and Representatives (it being understood that\nsuch responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Affiliates and\nRepresentatives with respect to such breach) and you agree to take all reasonable measures to restrain your Representatives from disclosure or\nimproper use of the Evaluation Material or from breaching or threatening to breach any other provision of this Agreement.\nYou hereby acknowledge that you, your Affiliates and your Representatives are aware that the Evaluation Material may contain material, non-public\ninformation about the Company and you hereby agree that you, your Affiliates and your Representatives will not purchase or sell any securities of\nthe Company while in possession of such information.\nNeither the Company nor you shall, and the Company and you each agree to cause your respective Affiliates and representatives, including in the\nCompany’s case, the Banker, not to, disclose without the written consent of the other party hereto, directly or indirectly, to any person (including any\ngovernmental agency, authority or official or any third party) either the fact that discussions or negotiations are taking place concerning a Possible\nTransaction with you or any of the terms, conditions or other facts with respect to a Possible Transaction with you, including the status thereof or\nthat Evaluation Material has been made available to you; provided that you and the Company may make such disclosures without the consent of the\nother party hereto if you are required to do so under applicable law or the applicable rules or regulations of any securities exchange or similar self-\nregulatory organization. Without limiting the generality of the foregoing, you further agree that you will not, directly or indirectly, share the\nEvaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to lead\nto such an agreement, arrangement or understanding with any other person, including other potential bidders regarding a Possible Transaction\ninvolving the Company without the prior written consent of the Company and only upon such person executing a confidentiality agreement in favor\nof the Company with terms and conditions consistent with this Agreement.\nNotwithstanding the foregoing, in the event you or any of your Affiliates or Representatives receive a request or are required (by deposition,\ninterrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose all or any part of the Evaluation Materials,\nyou or your Affiliates or Representatives, as the case may be, agree to (a) immediately notify the Company of the existence, terms and circumstances\nsurrounding such request or required disclosure, (b) consult with the Company on the advisability of taking legally available steps to resist or narrow\nsuch request or required disclosure, and (c) cooperate with the\nPage 2\nCompany, at the Company’s expense, in seeking a protective order or other appropriate remedy. In the event that such protective order or other\nremedy is not obtained or that the Company waives compliance with the provisions hereof, (i) you or your Affiliates or Representatives, as the case\nmay be, may disclose to any tribunal only that portion of the Evaluation Materials which you or your Affiliates or Representatives are advised by\ncounsel (in such counsel’s written opinion) is legally required to be disclosed, and you or your Affiliates or Representatives shall exercise reasonable\nbest efforts to obtain assurance that confidential treatment will be accorded such Evaluation Materials, and (ii) you or your Affiliates or\nRepresentatives shall not be liable for such disclosure. Further, notwithstanding anything in this paragraph to the contrary, you may make such\ndisclosures if you are required to do so under applicable law or the applicable rules or regulations of any securities exchange or similar self-\nregulatory organization.\nUnless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the\nPossible Transaction, will be submitted or directed exclusively to John P. Molner or Ivan A. Pirzada of Brown Brothers Harriman & Co. (the\n“Banker”). Contact information for the appropriate Banker representatives is included in Exhibit A to this letter agreement.\nYou agree that, for a period of two (2) years from the date hereof, neither you nor any of your Affiliates will, directly or indirectly, solicit for\nemployment or employ or cause to leave the employ of the Company or any of its subsidiaries any individual serving as (a) an officer of the\nCompany or any of its subsidiaries or (b) any employee of the Company or any of its subsidiaries with whom you have had contact, or who is\nspecifically identified to you, during your investigation of the Company and its business, in each case without obtaining the prior written consent of\nthe Company; provided that nothing herein shall restrict or preclude you from (A) making generalized solicitations or broad-based searches for\nemployees, (B) continuing your ordinary course hiring practices that are not targeted specifically at employees of the Company or (C) responding to\nany employee of the Company who contacts you regarding his or her own employment with you on his or her own initiative without any direct\nsolicitation by you other than any generalized search or ordinary course practice referred to in clause (A) or (B) above.\nYou hereby acknowledge that, unless otherwise agreed in writing by the Company, for a period of one (1) year from the date of this letter agreement,\nneither you nor any of your Representatives or Affiliates acting on your behalf or on behalf of other persons acting in concert with you will in any\nmanner, directly or indirectly: (a) propose, offer or effect (whether publicly or otherwise) (i) any merger, consolidation, business combination, tender\nor exchange offer, purchase of the Company’s material assets outside the ordinary course of business, stock or businesses, or similar transactions\ninvolving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company\n(collectively, a transaction specified in (a)(i) and (a)(ii) is referred to as a “Business Combination™); (b) (i) acquire “beneficial ownership” (as such\nterm is used in the rules of the Securities and Exchange Commission) of any securities (including in derivative form) of the Company, (ii) propose or\nseek, whether alone or in concert with others, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange\nCommission) or consents to vote any securities of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter\nto be voted upon by the stockholders of the Company; (c)\nPage 3\ndirectly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange\nCommission) (or discuss with any third party the potential formation of a group) with respect to any securities of the Company or a Business\nCombination involving the Company; or (d) take any action that could require the Company to make a public announcement regarding a potential\nBusiness Combination or any of the matters referred to in this paragraph; provided, however, that the restrictions set forth in this paragraph shall\nterminate immediately upon the public announcement by the Company or by a third party that the Company has entered into a definitive agreement\nwith such third party for a transaction involving a Business Combination. You also agree during such one (1) year period not to request, or solicit or\ninduce another person to request, the Company (or any of its Representatives), directly or indirectly, to amend, waive or publicize any provision of\nthis paragraph (including this sentence). Notwithstanding the foregoing, nothing in this Agreement shall limit your ability to make or submit in a\nconfidential, non-public manner to the board of directors of the Company, a bona fide written proposal relating to a Business Combination so long as\nyou do not make, or cause to be made, any public disclosure regarding such action and such action would not violate clause (d) above. You further\nagree that, subject to any applicable confidentiality or other similar restrictions, if at any time during such period, you or any of your Affiliates or\nRepresentatives are approached by any third party concerning your or their participation in a transaction involving any assets, indebtedness or\nbusiness of, or securities issued by, the Company or any of its subsidiaries, you will promptly inform the Company of the nature of such transaction\nand the parties involved.\nAlthough the Company has endeavored and will endeavor to include in the Evaluation Material information which it believes to be relevant for the\npurpose of your investigation, you understand that none of the Company, the Banker, or their respective Affiliates or Representatives have made or\nmake any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material in connection with matters\ncontemplated hereby. Only those representations and warranties that may be made to you in a definitive written agreement for a Possible\nTransaction, when, as and if executed and subject to such limitations and restrictions as may be specified therein, shall have any legal effect, and you\nagree that if you determine to engage in a Possible Transaction such determination will be based solely on the terms of such definitive written\nagreement and on your own investigation, analysis and assessment of the Possible Transaction. Except as provided in any such definitive written\nagreement, neither the Company nor any of its Affiliates or representatives shall have any liability to you or any other party, including, without\nlimitation, your Representatives, resulting from the use or selection of, or reliance on, Evaluation Material by you, your Affiliates or Representatives,\nother than as expressly provided herein.\nUpon the Company’s (directly or through the Banker) demand, you shall either promptly (a) destroy the Evaluation Material and any copies thereof,\nor (b) return to the Company all Evaluation Material and any copies thereof, and, in either case, confirm in writing to the Company that all such\nmaterial has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or\nelectronic format containing Evaluation Materials cannot be removed, erased or otherwise deleted from archival systems (also known as “computer\nor system back-ups™) but that such information will continue to be protected under the confidentiality requirements contained in this Agreement and\nyou and such Affiliates and Representatives shall continue to be bound by the obligations of\nPage 4\nconfidentiality hereunder. Notwithstanding the foregoing, you, your Affiliates and your Representatives may retain (i) one copy of any work product\nprepared by you or them that contains Evaluation Material to the extent required under applicable legal or regulatory requirements and (ii) one copy\nof the Evaluation Material at your outside legal counsels’ office to the extent required by your document retention policies; provided that you and\nsuch Affiliates and Representatives shall continue to be bound by the obligations of confidentiality hereunder.\nYou acknowledge and agree that money damages would not be a sufficient remedy for any breach (or threatened breach) of this letter agreement by\nyou or your Affiliates or Representatives and that the Company shall be entitled to equitable relief, including injunction and specific performance, as\na remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to\ncause its Affiliates and Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such\nremedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in\nequity.\nYou agree that unless and until a definitive agreement between the Company and you with respect to the Possible Transaction has been executed and\ndelivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to any transaction by virtue of this or\nany written or oral expression with respect to any Possible Transaction by any of its Affiliates and Representatives except for the matters specifically\nagreed to herein. For purposes of this letter agreement, the term “definitive agreement” does not include an executed letter of intent or any other\npreliminary written agreement, nor does it include any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be\nmodified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement.\nYou agree that this letter agreement supersedes all prior or contemporaneous agreements (including the Previous Nondisclosure Agreement),\nnegotiations or understandings between the parties regarding the subject matters hereof.\nYou acknowledge that, subject to the terms of this letter agreement, unless and until a definitive written agreement is entered into, (a) the Company\nand the Banker shall be free to conduct the process for a transaction as they in their sole discretion shall determine, (b) any procedures relating to\nsuch transaction may be changed at any time without notice to you or any other person, and (c) you shall not have any claims whatsoever against the\nCompany, the Banker or any of their respective Representatives arising out of or relating to a Possible Transaction.\nNo failure or delay by the Company or any of its representatives, on the one hand, or you or any of your Affiliates or Representatives, on the other\nhand, in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no modification hereof shall be\neffective, unless in writing and signed by an officer of the Company and/or you or other authorized person on its/your behalf.\nPage 5\nThe illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or\nenforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.\nExcept as otherwise provided in this letter agreement, the obligations hereunder shall terminate five years from the date hereof.\nThis letter agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts. The parties hereby\nirrevocably and unconditionally consent to the exclusive jurisdiction of the courts in the Commonwealth of Massachusetts and the United States\nDistrict Court for the District of the Commonwealth of Massachusetts for any action, suit or proceeding arising out of or relating to this letter\nagreement or the Possible Transaction, except as may otherwise be agreed in writing by the parties in the course of the Possible Transaction, and\nagree not to commence any action, suit or proceeding related thereto except in such courts.\nThis letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the\nsame agreement. One or more counterparts of this letter agreement may be delivered by telecopier or pdf electronic transmission, with the intention\nthat they shall have the same effect as an original counterpart hereof.\n[Signature Page Follows]\nPage 6\nVery truly yours,\nZOLL MEDICAL CORPORATION\nBy: /s/ Richard A. Packer\nName: Richard A. Packer\nTitle: CEO\nConfirmed and Agreed to:\nASAHI KASEI CORPORATION\nBy: /s/ Koji Fujiwara\nName: Koji Fujiwara\nTitle: Director & Primary Executive Officer\nEXHIBIT A\nBrown Brothers Harriman & Co. Contact Information\nAll inquiries should be directed to any of the individuals listed below.\n, Partner\nBrown Brothers Harriman & Co\n140 Broadway\nNew York, NY 10005-1101\nPhone:\nFax:\nEmail:\n, Senior Vice President\nBrown Brothers Harriman & Co.\n40 Water Street\nBoston, MA 02109\nPhone:\nFax:\nEmail:	EX-99.(D)(2) 10 319057dex99d2.htm CONFIDENTIALITY AGREEMENT, EFFECTIVE AS OF JANUARY 25,\n2012\nExhibit (d)(2)\nPERSONAL AND CONFIDENTIAL\nJanuary 25, 2012\nAsahi Kasei Corporation\n1-105 Kanda Jinbocho,\nChiyoda-ku, Tokyo 101-8101\nJapan\nAttn: Koji Fujiwara, Director & Primary Executive Officer\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction (the "Possible Transaction") with ZOLL Medical Corporation (the "Company."), you\nhave requested information concerning the Company and its subsidiaries and affiliates. You acknowledge that this information is confidential and\nproprietary and may include trade secrets or other business information the disclosure of which could harm the Company and its subsidiaries.\nIn\nconsideration for, and as a condition to, such information being made available to you and your Representatives, you agree to treat any information,\nwhether written or oral, concerning the Company or any of its subsidiaries, affiliates or divisions (whether prepared by the Company, its advisors or\notherwise) that is furnished to you by or on behalf of the Company (herein collectively referred to as the "Evaluation Material") in accordance with\nthe provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term "Evaluation Material"\nincludes, without limitation, all notes, analyses, compilations, Excel spread sheets, data, reports, studies, interpretations or other documents furnished\nto you or your Representatives (as defined below) or prepared by you or your Representatives to the extent such materials reflect or are based upon,\nin whole or in part, the Evaluation Material so furnished to you or your Representatives, and all "Confidential Information" of the Company under\nthe Mutual Nondisclosure Agreement, dated October 6, 2011, between you and the Company (the "Previous Nondisclosure Agreement"). The\nterm\n"Evaluation Material" does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the\nCompany or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes generally available to the public other than\nas a result of a disclosure by you or your Representatives in violation of this letter agreement, or (c) has been or is independently developed by you\nor\nyour Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement or the Previous Nondisclosure\nAgreement. For purposes of this letter agreement the term "Representatives" shall include your and your Affiliates' directors, officers, employees,\nattorneys, accountants, financial advisors, consultants and other professional representatives and shall also include any of your sources of senior\nand/or subordinated debt financing. For purposes of this letter agreement the term "Affiliates" has the meaning given to it in Rule 12b-2 of the\nSecurities Exchange Act of 1934, as amended.\nYou hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating and negotiating the Possible\nTransaction between the Company and you and your Affiliates; provided, however, that the Evaluation Material may be disclosed (i) to your\nAffiliates and any of your Representatives who need to know such information for the sole purpose of evaluating and negotiating a Possible\nTransaction, and (ii) as the Company may otherwise consent in writing. All such Representatives and Affiliates shall (A) be informed by you of the\nconfidential nature of the Evaluation Material, (B) agree to keep the Evaluation Material strictly confidential, and (C) be advised of the terms of this\nletter agreement and agree to be bound by the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be\nresponsible for any breaches of any of the provisions of this letter agreement by any of your Affiliates and Representatives (it being understood that\nsuch responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Affiliates and\nRepresentatives with respect to such breach) and you agree to take all reasonable measures to restrain your Representatives from disclosure\nor\nimproper use of the Evaluation Material or from breaching or threatening to breach any other provision of this Agreement.\nYou hereby acknowledge that you, your Affiliates and your Representatives are aware that the Evaluation Material may contain material, non-public\ninformation about the Company and you hereby agree that you, your Affiliates and your Representatives will not purchase or sell any securities of\nthe Company while in possession of such information.\nNeither the Company nor you shall, and the Company and you each agree to cause your respective Affiliates and representatives, including in the\nCompany's case, the Banker, not to, disclose without the written consent of the other party hereto, directly or indirectly, to any person (including any\ngovernmental agency, authority or official or any third party) either the fact that discussions or negotiations are taking place concerning a Possible\nTransaction with you or any of the terms, conditions or other facts with respect to a Possible Transaction with you, including the status thereof or\nthat Evaluation Material has been made available to you; provided that you and the Company may make such disclosures without the consent of the\nother party hereto if you are required to do so under applicable law or the applicable rules or regulations of any securities exchange or similar\nself-\nregulatory organization. Without limiting the generality of the foregoing, you further agree that you will not, directly or indirectly, share the\nEvaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to\nlead\nto such an agreement, arrangement or understanding with any other person, including other potential bidders regarding a Possible Transaction\ninvolving the Company without the prior written consent of the Company and only upon such person executing a confidentiality agreement in favor\nof the Company with terms and conditions consistent with this Agreement.\nNotwithstanding the foregoing, in the event you or any of your Affiliates or Representatives receive a request or are required (by deposition,\ninterrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose all or any part of the Evaluation Materials,\nyou\nor your Affiliates or Representatives, as the case may be, agree to (a) immediately notify the Company of the existence, terms and circumstances\nsurrounding such request or required disclosure, (b) consult with the Company on the advisability of taking legally available steps to resist or narrow\nsuch request or required disclosure, and (c) cooperate with the\nPage 2\nCompany, at the Company's expense, in seeking a protective order or other appropriate remedy. In the event that such protective order or other\nremedy is not obtained or that the Company waives compliance with the provisions hereof, (i) you or your Affiliates or Representatives, as the case\nmay be, may disclose to any tribunal only that portion of the Evaluation Materials which you or your Affiliates or Representatives are advised\nby\ncounsel (in such counsel's written opinion) is legally required to be disclosed, and you or your Affiliates or Representatives shall exercise reasonable\nbest efforts to obtain assurance that confidential treatment will be accorded such Evaluation Materials, and (ii) you or your Affiliates or\nRepresentatives shall not be liable for such disclosure. Further, notwithstanding anything in this paragraph to the contrary, you may make such\ndisclosures if you are required to do so under applicable law or the applicable rules or regulations of any securities exchange or similar self-\nregulatory organization.\nUnless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of\nthe\nPossible Transaction, will be submitted or directed exclusively to John P. Molner or Ivan A. Pirzada of Brown Brothers Harriman & Co. (the\n"Banker"). Contact information for the appropriate Banker representatives is included in Exhibit A to this letter agreement.\nYou agree that, for a period of two (2) years from the date hereof, neither you nor any of your Affiliates will, directly or indirectly, solicit for\nemployment or employ or cause to leave the employ of the Company or any of its subsidiaries any individual serving as (a) an officer of the\nCompany or any of its subsidiaries or (b) any employee of the Company or any of its subsidiaries with whom you have had contact, or who\nis\nspecifically identified to you, during your investigation of the Company and its business, in each case without obtaining the prior written consent\nof\nthe Company; provided that nothing herein shall restrict or preclude you from (A) making generalized solicitations or broad-based searches for\nemployees, (B) continuing your ordinary course hiring practices that are not targeted specifically at employees of the Company or (C) responding\nto\nany employee of the Company who contacts you regarding his or her own employment with you on his or her own initiative without any direct\nsolicitation by you other than any generalized search or ordinary course practice referred to in clause (A) or (B) above.\nYou hereby acknowledge that, unless otherwise agreed in writing by the Company, for a period of one (1) year from the date of this letter agreement,\nneither you nor any of your Representatives or Affiliates acting on your behalf or on behalf of other persons acting in concert with you will in any\nmanner, directly or indirectly: (a) propose, offer or effect (whether publicly or otherwise) (i) any merger, consolidation, business combination, tender\nor exchange offer, purchase of the Company's material assets outside the ordinary course of business, stock or businesses, or similar transactions\ninvolving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company\n(collectively, a transaction specified in (a)(i) and (a)(ii is referred to as a "Business Combination"); (b) (i) acquire "beneficial ownership" (as such\nterm is used in the rules of the Securities and Exchange Commission) of any securities (including in derivative form) of the Company, (ii) propose\nor\nseek, whether alone or in concert with others, any "solicitation" of "proxies" (as such terms are used in the rules of the Securities and Exchange\nCommission) or consents to vote any securities of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter\nto be voted upon by the stockholders of the Company; (c)\nPage 3\ndirectly or indirectly, form, join or in any way participate in a third party "group" (as such term is used in the rules of the Securities and Exchange\nCommission) (or discuss with any third party the potential formation of a group) with respect to any securities of the Company or a Business\nCombination involving the Company; or (d) take any action that could require the Company to make a public announcement regarding a potential\nBusiness Combination or any of the matters referred to in this paragraph; provided, however, that the restrictions set forth in this paragraph shall\nterminate immediately upon the public announcement by the Company or by a third party that the Company has entered into a definitive agreement\nwith such third party for a transaction involving a Business Combination. You also agree during such one (1) year period not to request, or solicit\nor\ninduce another person to request, the Company (or any of its Representatives), directly or indirectly, to amend, waive or publicize any provision of\nthis paragraph (including this sentence). Notwithstanding the foregoing, nothing in this Agreement shall limit your ability to make or submit in\na\nconfidential, non-public manner to the board of directors of the Company, a bona fide written proposal relating to a Business Combination so long as\nyou do not make, or cause to be made, any public disclosure regarding such action and such action would not violate clause (d) above. You further\nagree that, subject to any applicable confidentiality or other similar restrictions, if at any time during such period, you or any of your Affiliates\nor\nRepresentatives are approached by any third party concerning your or their participation in a transaction involving any assets, indebtedness or\nbusiness of, or securities issued by, the Company or any of its subsidiaries, you will promptly inform the Company of the nature of such transaction\nand the parties involved.\nAlthough the Company has endeavored and will endeavor to include in the Evaluation Material information which it believes to be relevant for the\npurpose of your investigation, you understand that none of the Company, the Banker, or their respective Affiliates or Representatives have made or\nmake any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material in connection with matters\ncontemplated hereby. Only those representations and warranties that may be made to you in a definitive written agreement for a Possible\nTransaction, when, as and if executed and subject to such limitations and restrictions as may be specified therein, shall have any legal effect, and\nyou\nagree that if you determine to engage in a Possible Transaction such determination will be based solely on the terms of such definitive written\nagreement and on your own investigation, analysis and assessment of the Possible Transaction. Except as provided in any such definitive written\nagreement, neither the Company nor any of its Affiliates or representatives shall have any liability to you or any other party, including, without\nlimitation, your Representatives, resulting from the use or selection of, or reliance on, Evaluation Material by you, your Affiliates or Representatives,\nother than as expressly provided herein.\nUpon the Company's (directly or through the Banker) demand, you shall either promptly (a) destroy the Evaluation Material and any copies thereof,\nor (b) return to the Company all Evaluation Material and any copies thereof, and, in either case, confirm in writing to the Company that all such\nmaterial has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or\nelectronic format containing Evaluation Materials cannot be removed, erased or otherwise deleted from archival systems (also known as "computer\nor system back-ups") but that such information will continue to be protected under the confidentiality requirements contained in this Agreement and\nyou and such Affiliates and Representatives shall continue to be bound by the obligations of\nPage 4\nconfidentiality hereunder. Notwithstanding the foregoing, you, your Affiliates and your Representatives may retain (i) one copy of any work product\nprepared by you or them that contains Evaluation Material to the extent required under applicable legal or regulatory requirements and (ii) one copy\nof the Evaluation Material at your outside legal counsels' office to the extent required by your document retention policies; provided that you and\nsuch Affiliates and Representatives shall continue to be bound by the obligations of confidentiality hereunder.\nYou acknowledge and agree that money damages would not be a sufficient remedy for any breach (or threatened breach) of this letter\nagreement\nby\nyou or your Affiliates or Representatives and that the Company shall be entitled to equitable relief, including injunction and specific performance, as\na remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to\ncause its Affiliates and Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such\nremedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or\nin\nequity.\nYou agree that unless and until a definitive agreement between the Company and you with respect to the Possible Transaction has been executed and\ndelivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to any transaction by virtue of this or\nany written or oral expression with respect to any Possible Transaction by any of its Affiliates and Representatives except for the matters specifically\nagreed to herein. For purposes of this letter agreement, the term "definitive agreement" does not include an executed letter of intent or any other\npreliminary written agreement, nor does it include any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be\nmodified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement.\nYou agree that this letter agreement supersedes all prior or contemporaneous agreements (including the Previous Nondisclosure Agreement),\nnegotiations or understandings between the parties regarding the subject matters hereof.\nYou acknowledge that, subject to the terms of this letter agreement, unless and until a definitive written agreement is entered into, (a) the Company\nand the Banker shall be free to conduct the process for a transaction as they in their sole discretion shall determine, (b) any procedures relating to\nsuch transaction may be changed at any time without notice to you or any other person, and (c) you shall not have any claims whatsoever against the\nCompany, the Banker or any of their respective Representatives arising out of or relating to a Possible Transaction.\nNo\nfailure or delay by the Company or any of its representatives, on the one hand, or you or any of your Affiliates or Representatives, on the other\nhand, in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no modification hereof shall be\neffective, unless in writing and signed by an officer of the Company and/or you or other authorized person on its/your behalf.\nPage 5\nThe illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or\nenforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.\nExcept as otherwise provided in this letter agreement, the obligations hereunder shall terminate five years from the date hereof.\nThis letter agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts. The parties hereby\nirrevocably and unconditionally consent to the exclusive jurisdiction of the courts in the Commonwealth of Massachusetts and the United States\nDistrict Court for the District of the Commonwealth of Massachusetts for any action, suit or proceeding arising out of or relating to this letter\nagreement or the Possible Transaction, except as may otherwise be agreed in writing by the parties in the course of the Possible Transaction, and\nagree not to commence any action, suit or proceeding related thereto except in such courts.\nThis letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the\nsame agreement. One or more counterparts of this letter agreement may be delivered by telecopier or pdf electronic transmission, with the intention\nthat they shall have the same effect as an original counterpart hereof.\n[Signature Page Follows]\nPage 6\nVery truly yours,\nZOLL MEDICAL CORPORATION\nBy: /s/ Richard A. Packer\nName: Richard A. Packer\nTitle: CEO\nConfirmed and Agreed to:\nASAHI KASEI CORPORATION\nBy: /s/ Koji Fujiwara\nName: Koji Fujiwara\nTitle: Director & Primary Executive Officer\nEXHIBIT A\nBrown Brothers Harriman & Co. Contact Information\nAll inquiries should be directed to any of the individuals listed below.\n> Partner\nBrown Brothers Harriman & Co\n140 Broadway\nNew York, NY 10005-1101\nPhone:\nFax:\nEmail:\n> Senior Vice President\nBrown Brothers Harriman & Co.\n40 Water Street\nBoston, MA 02109\nPhone:\nFax:\nEmail:	EX-99.(D)(2) 10 d319057dex99d2.htm CONFIDENTIALITY AGREEMENT, EFFECTIVE AS OF JANUARY 25,\n2012\nExhibit (d)(2)\nPERSONAL AND CONFIDENTIAL\nJanuary 25, 2012\nAsahi Kasei Corporation\n1-105 Kanda Jinbocho,\nChiyoda-ku, Tokyo 101-8101\nJapan\nAttn: Koji Fujiwara, Director & Primary Executive Officer\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction (the “Possible Transaction”) with ZOLL Medical Corporation (the “Company”), you\nhave requested information concerning the Company and its subsidiaries and affiliates. You acknowledge that this information is confidential and\nproprietary and may include trade secrets or other business information the disclosure of which could harm the Company and its subsidiaries. In\nconsideration for, and as a condition to, such information being made available to you and your Representatives, you agree to treat any information,\nwhether written or oral, concerning the Company or any of its subsidiaries, affiliates or divisions (whether prepared by the Company, its advisors or\notherwise) that is furnished to you by or on behalf of the Company (herein collectively referred to as the “Evaluation Material”) in accordance with\nthe provisions of this letter agreement and to take or abstain from taking certain other actions herein set forth. The term “Evaluation Material”\nincludes, without limitation, all notes, analyses, compilations, Excel spread sheets, data, reports, studies, interpretations or other documents furnished\nto you or your Representatives (as defined below) or prepared by you or your Representatives to the extent such materials reflect or are based upon,\nin whole or in part, the Evaluation Material so furnished to you or your Representatives, and all “Confidential Information” of the Company under\nthe Mutual Nondisclosure Agreement, dated October 6, 2011, between you and the Company (the “Previous Nondisclosure Agreement”). The term\n“Evaluation Material” does not include information that (a) is or becomes available to you on a nonconfidential basis from a source other than the\nCompany or its Representatives; provided that such source is not known by you to be bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or becomes generally available to the public other than\nas a result of a disclosure by you or your Representatives in violation of this letter agreement, or (c) has been or is independently developed by you\nor your Representatives without the use of the Evaluation Material or in violation of the terms of this letter agreement or the Previous Nondisclosure\nAgreement. For purposes of this letter agreement the term “Representatives” shall include your and your Affiliates’ directors, officers, employees,\nattorneys, accountants, financial advisors, consultants and other professional representatives and shall also include any of your sources of senior\nand/or subordinated debt financing. For purposes of this letter agreement the term “Affiliates” has the meaning given to it in Rule 12b-2 of the\nSecurities Exchange Act of 1934, as amended.\nYou hereby agree that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating and negotiating the Possible\nTransaction between the Company and you and your Affiliates; provided, however, that the Evaluation Material may be disclosed (i) to your\nAffiliates and any of your Representatives who need to know such information for the sole purpose of evaluating and negotiating a Possible\nTransaction, and (ii) as the Company may otherwise consent in writing. All such Representatives and Affiliates shall (A) be informed by you of the\nconfidential nature of the Evaluation Material, (B) agree to keep the Evaluation Material strictly confidential, and (C) be advised of the terms of this\nletter agreement and agree to be bound by the terms hereof to the same extent as if they were parties to this letter agreement. You agree to be\nresponsible for any breaches of any of the provisions of this letter agreement by any of your Affiliates and Representatives (it being understood that\nsuch responsibility shall be in addition to and not by way of limitation of any right or remedy the Company may have against your Affiliates and\nRepresentatives with respect to such breach) and you agree to take all reasonable measures to restrain your Representatives from disclosure or\nimproper use of the Evaluation Material or from breaching or threatening to breach any other provision of this Agreement.\nYou hereby acknowledge that you, your Affiliates and your Representatives are aware that the Evaluation Material may contain material, non-public\ninformation about the Company and you hereby agree that you, your Affiliates and your Representatives will not purchase or sell any securities of\nthe Company while in possession of such information.\nNeither the Company nor you shall, and the Company and you each agree to cause your respective Affiliates and representatives, including in the\nCompany’s case, the Banker, not to, disclose without the written consent of the other party hereto, directly or indirectly, to any person (including any\ngovernmental agency, authority or official or any third party) either the fact that discussions or negotiations are taking place concerning a Possible\nTransaction with you or any of the terms, conditions or other facts with respect to a Possible Transaction with you, including the status thereof or\nthat Evaluation Material has been made available to you; provided that you and the Company may make such disclosures without the consent of the\nother party hereto if you are required to do so under applicable law or the applicable rules or regulations of any securities exchange or similar self-\nregulatory organization. Without limiting the generality of the foregoing, you further agree that you will not, directly or indirectly, share the\nEvaluation Material with or enter into any agreement, arrangement or understanding, or any discussions which would reasonably be expected to lead\nto such an agreement, arrangement or understanding with any other person, including other potential bidders regarding a Possible Transaction\ninvolving the Company without the prior written consent of the Company and only upon such person executing a confidentiality agreement in favor\nof the Company with terms and conditions consistent with this Agreement.\nNotwithstanding the foregoing, in the event you or any of your Affiliates or Representatives receive a request or are required (by deposition,\ninterrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose all or any part of the Evaluation Materials,\nyou or your Affiliates or Representatives, as the case may be, agree to (a) immediately notify the Company of the existence, terms and circumstances\nsurrounding such request or required disclosure, (b) consult with the Company on the advisability of taking legally available steps to resist or narrow\nsuch request or required disclosure, and (c) cooperate with the\nPage 2\nCompany, at the Company’s expense, in seeking a protective order or other appropriate remedy. In the event that such protective order or other\nremedy is not obtained or that the Company waives compliance with the provisions hereof, (i) you or your Affiliates or Representatives, as the case\nmay be, may disclose to any tribunal only that portion of the Evaluation Materials which you or your Affiliates or Representatives are advised by\ncounsel (in such counsel’s written opinion) is legally required to be disclosed, and you or your Affiliates or Representatives shall exercise reasonable\nbest efforts to obtain assurance that confidential treatment will be accorded such Evaluation Materials, and (ii) you or your Affiliates or\nRepresentatives shall not be liable for such disclosure. Further, notwithstanding anything in this paragraph to the contrary, you may make such\ndisclosures if you are required to do so under applicable law or the applicable rules or regulations of any securities exchange or similar self-\nregulatory organization.\nUnless otherwise agreed to by the Company in writing, (a) all communications regarding the Possible Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and terms of the\nPossible Transaction, will be submitted or directed exclusively to John P. Molner or Ivan A. Pirzada of Brown Brothers Harriman & Co. (the\n“Banker”). Contact information for the appropriate Banker representatives is included in Exhibit A to this letter agreement.\nYou agree that, for a period of two (2) years from the date hereof, neither you nor any of your Affiliates will, directly or indirectly, solicit for\nemployment or employ or cause to leave the employ of the Company or any of its subsidiaries any individual serving as (a) an officer of the\nCompany or any of its subsidiaries or (b) any employee of the Company or any of its subsidiaries with whom you have had contact, or who is\nspecifically identified to you, during your investigation of the Company and its business, in each case without obtaining the prior written consent of\nthe Company; provided that nothing herein shall restrict or preclude you from (A) making generalized solicitations or broad-based searches for\nemployees, (B) continuing your ordinary course hiring practices that are not targeted specifically at employees of the Company or (C) responding to\nany employee of the Company who contacts you regarding his or her own employment with you on his or her own initiative without any direct\nsolicitation by you other than any generalized search or ordinary course practice referred to in clause (A) or (B) above.\nYou hereby acknowledge that, unless otherwise agreed in writing by the Company, for a period of one (1) year from the date of this letter agreement,\nneither you nor any of your Representatives or Affiliates acting on your behalf or on behalf of other persons acting in concert with you will in any\nmanner, directly or indirectly: (a) propose, offer or effect (whether publicly or otherwise) (i) any merger, consolidation, business combination, tender\nor exchange offer, purchase of the Company’s material assets outside the ordinary course of business, stock or businesses, or similar transactions\ninvolving the Company or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to the Company\n(collectively, a transaction specified in (a)(i) and (a)(ii) is referred to as a “Business Combination”); (b) (i) acquire “beneficial ownership” (as such\nterm is used in the rules of the Securities and Exchange Commission) of any securities (including in derivative form) of the Company, (ii) propose or\nseek, whether alone or in concert with others, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange\nCommission) or consents to vote any securities of the Company, (iii) nominate any person as a director of the Company, or (iv) propose any matter\nto be voted upon by the stockholders of the Company; (c)\nPage 3\ndirectly or indirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange\nCommission) (or discuss with any third party the potential formation of a group) with respect to any securities of the Company or a Business\nCombination involving the Company; or (d) take any action that could require the Company to make a public announcement regarding a potential\nBusiness Combination or any of the matters referred to in this paragraph; provided, however, that the restrictions set forth in this paragraph shall\nterminate immediately upon the public announcement by the Company or by a third party that the Company has entered into a definitive agreement\nwith such third party for a transaction involving a Business Combination. You also agree during such one (1) year period not to request, or solicit or\ninduce another person to request, the Company (or any of its Representatives), directly or indirectly, to amend, waive or publicize any provision of\nthis paragraph (including this sentence). Notwithstanding the foregoing, nothing in this Agreement shall limit your ability to make or submit in a\nconfidential, non-public manner to the board of directors of the Company, a bona fide written proposal relating to a Business Combination so long as\nyou do not make, or cause to be made, any public disclosure regarding such action and such action would not violate clause (d) above. You further\nagree that, subject to any applicable confidentiality or other similar restrictions, if at any time during such period, you or any of your Affiliates or\nRepresentatives are approached by any third party concerning your or their participation in a transaction involving any assets, indebtedness or\nbusiness of, or securities issued by, the Company or any of its subsidiaries, you will promptly inform the Company of the nature of such transaction\nand the parties involved.\nAlthough the Company has endeavored and will endeavor to include in the Evaluation Material information which it believes to be relevant for the\npurpose of your investigation, you understand that none of the Company, the Banker, or their respective Affiliates or Representatives have made or\nmake any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material in connection with matters\ncontemplated hereby. Only those representations and warranties that may be made to you in a definitive written agreement for a Possible\nTransaction, when, as and if executed and subject to such limitations and restrictions as may be specified therein, shall have any legal effect, and you\nagree that if you determine to engage in a Possible Transaction such determination will be based solely on the terms of such definitive written\nagreement and on your own investigation, analysis and assessment of the Possible Transaction. Except as provided in any such definitive written\nagreement, neither the Company nor any of its Affiliates or representatives shall have any liability to you or any other party, including, without\nlimitation, your Representatives, resulting from the use or selection of, or reliance on, Evaluation Material by you, your Affiliates or Representatives,\nother than as expressly provided herein.\nUpon the Company’s (directly or through the Banker) demand, you shall either promptly (a) destroy the Evaluation Material and any copies thereof,\nor (b) return to the Company all Evaluation Material and any copies thereof, and, in either case, confirm in writing to the Company that all such\nmaterial has been destroyed or returned, as applicable, in compliance with this letter agreement. It is understood that information in an intangible or\nelectronic format containing Evaluation Materials cannot be removed, erased or otherwise deleted from archival systems (also known as “computer\nor system back-ups”) but that such information will continue to be protected under the confidentiality requirements contained in this Agreement and\nyou and such Affiliates and Representatives shall continue to be bound by the obligations of\nPage 4\nconfidentiality hereunder. Notwithstanding the foregoing, you, your Affiliates and your Representatives may retain (i) one copy of any work product\nprepared by you or them that contains Evaluation Material to the extent required under applicable legal or regulatory requirements and (ii) one copy\nof the Evaluation Material at your outside legal counsels’ office to the extent required by your document retention policies; provided that you and\nsuch Affiliates and Representatives shall continue to be bound by the obligations of confidentiality hereunder.\nYou acknowledge and agree that money damages would not be a sufficient remedy for any breach (or threatened breach) of this letter agreement by\nyou or your Affiliates or Representatives and that the Company shall be entitled to equitable relief, including injunction and specific performance, as\na remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use its best efforts to\ncause its Affiliates and Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy. Such\nremedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in\nequity.\nYou agree that unless and until a definitive agreement between the Company and you with respect to the Possible Transaction has been executed and\ndelivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to any transaction by virtue of this or\nany written or oral expression with respect to any Possible Transaction by any of its Affiliates and Representatives except for the matters specifically\nagreed to herein. For purposes of this letter agreement, the term “definitive agreement” does not include an executed letter of intent or any other\npreliminary written agreement, nor does it include any oral acceptance of an offer or bid by you. The agreement set forth in this paragraph may be\nmodified or waived only by a separate writing by the Company and you expressly so modifying or waiving such agreement.\nYou agree that this letter agreement supersedes all prior or contemporaneous agreements (including the Previous Nondisclosure Agreement),\nnegotiations or understandings between the parties regarding the subject matters hereof.\nYou acknowledge that, subject to the terms of this letter agreement, unless and until a definitive written agreement is entered into, (a) the Company\nand the Banker shall be free to conduct the process for a transaction as they in their sole discretion shall determine, (b) any procedures relating to\nsuch transaction may be changed at any time without notice to you or any other person, and (c) you shall not have any claims whatsoever against the\nCompany, the Banker or any of their respective Representatives arising out of or relating to a Possible Transaction.\nNo failure or delay by the Company or any of its representatives, on the one hand, or you or any of your Affiliates or Representatives, on the other\nhand, in exercising any right, power or privilege under this letter agreement shall operate as a waiver thereof, and no modification hereof shall be\neffective, unless in writing and signed by an officer of the Company and/or you or other authorized person on its/your behalf.\nPage 5\nThe illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its legality, validity or\nenforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other provision.\nExcept as otherwise provided in this letter agreement, the obligations hereunder shall terminate five years from the date hereof.\nThis letter agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts. The parties hereby\nirrevocably and unconditionally consent to the exclusive jurisdiction of the courts in the Commonwealth of Massachusetts and the United States\nDistrict Court for the District of the Commonwealth of Massachusetts for any action, suit or proceeding arising out of or relating to this letter\nagreement or the Possible Transaction, except as may otherwise be agreed in writing by the parties in the course of the Possible Transaction, and\nagree not to commence any action, suit or proceeding related thereto except in such courts.\nThis letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the\nsame agreement. One or more counterparts of this letter agreement may be delivered by telecopier or pdf electronic transmission, with the intention\nthat they shall have the same effect as an original counterpart hereof.\n[Signature Page Follows]\nPage 6\nVery truly yours,\nZOLL MEDICAL CORPORATION\nBy: /s/ Richard A. Packer\nName: Richard A. Packer\nTitle: CEO\nConfirmed and Agreed to:\nASAHI KASEI CORPORATION\nBy: /s/ Koji Fujiwara\nName: Koji Fujiwara\nTitle: Director & Primary Executive Officer\nEXHIBIT A\nBrown Brothers Harriman & Co. Contact Information\nAll inquiries should be directed to any of the individuals listed below.\n, Partner\nBrown Brothers Harriman & Co\n140 Broadway\nNew York, NY 10005-1101\nPhone:\nFax:\nEmail:\n, Senior Vice President\nBrown Brothers Harriman & Co.\n40 Water Street\nBoston, MA 02109\nPhone:\nFax:\nEmail:
+402141dd8e87b123574ae59271c9224f.pdf	effective_date jurisdiction party term	EX-99.E .3 4 dex99e3.htm NON-DISCLOSURE AGREEMENT\nExhibit (e)(3)\nNON-DISCLOSURE AGREEMENT\nIn connection with a potential transaction (“Proposed Transaction”) between 3M Company (“Interested Party” or “Receiving Party”), and\nCogent, Inc., a Delaware corporation (“Company” or “Disclosing Party”), the parties wish to protect and preserve the confidential and/or\nproprietary nature of certain information and materials of the Company that may be disclosed or made available to the Interested Party or its\nRepresentatives (as defined below) in connection with certain discussions, negotiations or dealings between the parties relating to the Proposed\nTransaction.\nIn consideration of the foregoing and the rights and obligations set forth herein, both parties hereby agree as of July 31, 2008 (the “Effective\nDate”):\n1. PROPRIETARY INFORMATION AND OTHER DEFINITIONS.\n1.1 “Proprietary Information” means any and all information and material disclosed by Disclosing Party or any of its Representatives to\nReceiving Party or any of its Representatives in connection with the Proposed Transaction or in the course of the parties’ evaluation and negotiation\nof the Proposed Transaction, together with all communications, data, reports, analyses, compilations, studies, interpretations, records, notes, lists,\nfinancial statements or other materials or information prepared by Receiving Party or any of its Representatives that contain or otherwise reflect or\nare based upon, in whole or in part, any Proprietary Information of Disclosing Party or that reflect the review of, interest in, or evaluation of all or\nany portion of the Proposed Transaction or Disclosing Party’s business (collectively, “Derived Information”), whether tangible or intangible,\nfurnished or prepared in writing or in oral, graphic, electronic or any other form or manner. In addition, Proprietary Information shall include (x) the\nfact that discussions or negotiations are taking place concerning the Proposed Transaction or that Interested Party has made or may make an offer to\nacquire Company’s stock or assets or that any Proprietary Information has been shared between the parties and their respective Representatives in\nconnection therewith, (y) the proposed terms and conditions of the Proposed Transaction (including any financial terms and conditions) and the\nstatus thereof, and (z) the existence, context, and scope of this Agreement.\nProprietary Information shall not include information that: (i) is or becomes generally available to the public other than as a result of any\ndisclosure or other action or inaction by Receiving Party in breach of this Agreement (including any disclosure or other action or inaction by\nRepresentatives of Receiving Party that would constitute a breach of this Agreement if undertaken by Receiving Party itself); (ii) is or becomes\nknown or available to Receiving Party or any of its Representatives on a non-confidential basis from a source (other than Disclosing Party or any of\nits subsidiaries, affiliates or Representatives) that, to the best of the knowledge of Receiving Party, is not prohibited from disclosing such Proprietary\nInformation to Receiving Party by a contractual, legal or fiduciary obligation; or (iii) is or was independently developed by Receiving Party or any of\nits Representatives without violation of any obligation under this Agreement.\n1.2 “Representatives” means as to any person, its directors, officers, employees, agents and advisors (including, without limitation, financial\nadvisors, financing sources, attorneys, accountants and their respective Representatives).\n1.3 “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.\n2. NON-DISCLOSURE AND LIMITED USE.\n2.1 Non-Disclosure. Without the written consent of Disclosing Party and except as otherwise required by applicable law, Receiving Party shall\nkeep, and shall cause its Representatives to keep, all Proprietary Information confidential and shall not disclose or reveal, and shall cause its\nRepresentatives not to disclose or reveal, in any manner whatsoever, in whole or in part, any Proprietary Information to any person, other than to its\nRepresentatives who are actively and directly participating in its evaluation of the Proposed Transaction or who otherwise need to know the\nProprietary Information for the purpose of evaluating the Proposed Transaction and who are bound by restrictions regarding the disclosure and use of\nsuch Proprietary Information (either contractual, legal or fiduciary) owed to Company, Interested Party or any their respective Representatives that\nare comparable to and no less restrictive than those set forth in this Agreement. Each party shall inform all of its respective Representatives and shall\ncause its respective Representatives to inform their Representatives who receive Proprietary Information hereunder of the confidential nature of such\ninformation and the Proposed Transaction, as well as the terms of this Agreement. Receiving Party shall not, and shall cause its Representatives to\nnot, use any Proprietary Information for any purpose other than to evaluate the Proposed Transaction or in connection with the consummation of the\nProposed Transaction. Each party shall be responsible for any breach of the terms of this Agreement by it or its Representatives.\n2.2 Degree of Care. Receiving Party shall take the same degree of care that it uses to protect its own confidential and proprietary information\nof similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the use, disclosure, publication or\ndissemination of the Proprietary Information of Disclosing Party. Receiving Party shall not, and shall cause its Representatives to not, decompile,\ndisassemble or otherwise reverse engineer (except to the extent expressly permitted by applicable law, notwithstanding a contractual obligation to the\ncontrary) any Proprietary Information or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or\ntechniques embodied in any Proprietary Information or any portion thereof. Receiving Party shall not use Proprietary Information for any purpose or\nin any manner that would constitute a violation of any laws or regulations, including without limitation the export control laws of the United States.\n2.3 Designated Representatives. Neither Interested Party nor its Representatives shall initiate or maintain contact with any officer, director,\nstockholder, employee or agent of Company or its subsidiaries regarding the Proposed Transaction, except with the express consent of Company. All\n(i) communications regarding the Proposed Transaction, (ii) requests for additional information, (iii) requests for on-site access or management\nmeetings and (iv) discussions or questions regarding procedures, will be submitted or directed to the Representatives designated by the Company.\n2.4 Compelled Disclosure of Proprietary Information. If Receiving Party or any of its Representatives are requested pursuant to, or required\nby, applicable law or regulation (including, without limitation, any rule, regulation or policy statement of any national securities exchange, market or\nautomated quotation system on which any of Receiving Party’s securities are listed or quoted) or by legal process to disclose any Proprietary\nInformation, or any other information concerning Disclosing Party, its subsidiaries or affiliates, Receiving Party shall provide Disclosing Party with\nprompt notice of such request or requirement, in order to enable Disclosing Party (a) to seek an appropriate protective order or other remedy, (b) to\nconsult with Receiving Party with respect to Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process or (c) to\nwaive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or\nDisclosing Party waives compliance, in whole or in part, with the terms of this Agreement, Receiving Party or its Representatives, as the case may\nbe, shall use commercially reasonable efforts to disclose only that portion of the Proprietary Information which Receiving Party is advised by legal\ncounsel is legally required to be disclosed and exercise its commercially reasonable efforts to obtain reliable assurances that confidential treatment\nwill be accorded to the Proprietary Information so disclosed.\n2.5 Attorney-Client Privilege. To the extent that any Proprietary Information may include material subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the\nparties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual\nunderstanding that the disclosure of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material\nor its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege and any such Proprietary\nInformation shall remain entitled to all protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this\nAgreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\n2.6 Definitive Agreement. Until a definitive agreement regarding the Proposed Transaction has been executed by the parties hereto, neither\nparty hereto shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to the Proposed\nTransaction by virtue of this Agreement or otherwise (other than with respect to the confidentiality and other matters set forth herein). Each party\nhereto and its Representatives (i) may conduct the process that may or may not result in the Proposed Transaction in such manner as such party, in its\nsole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice\nto the other party) and (ii) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating\nto the parties’ consideration of the Proposed Transaction (including, without limitation, terminating all further discussions with the other party). For\npurposes of this Agreement, the term “definitive agreement” does not include an executed letter of intent or any other preliminary written agreement\nin principle.\n2.7 No Representations or Warranties Regarding Proprietary Information. Subject to the terms and conditions of a definitive agreement\nregarding the Proposed Transaction and without prejudice thereto, each party acknowledges that neither the other party nor its Representatives nor\nany of the officers, directors, employees, agents or controlling persons of such Representatives makes any express or implied representation or\nwarranty as to the completeness of the Proprietary Information or any use thereof. Each party hereby expressly disclaims all such warranties,\nincluding any implied warranties of merchantability and fitness for a particular purpose, non-infringement and accuracy, and any warranties arising\nout of course of performance, course of dealing or usage of trade. Receiving Party shall not be entitled to rely on the completeness of any Proprietary\nInformation, but shall be entitled to rely solely on such representations and warranties regarding the completeness of the Proprietary Information as\nmay be made to it in a definitive agreement relating to the Proposed Transaction, subject to the terms and conditions of any such agreement, should\nthe discussions between the parties progress to such a point.\n3. NO SOLICITATION.\n3.1 No Solicitation of Employees. Interested Party agrees that neither it nor its affiliates will at any time until the one year anniversary of the\nEffective Date, directly or indirectly, employ or solicit for employment (i) any key technical or management personnel of the Company that has first\nbeen introduced by the Company to the Interested Party in connection with the Proposed Transaction or who was otherwise substantively involved in\nthe discussions of the Proposed Transaction or (ii) any other person who is now employed as an officer of the other party or any of its affiliates;\nprovided, that the foregoing restriction shall not be deemed to prohibit Interested Party or its Representatives from making general public\nsolicitations for employment for any position or from employing any employee of the\nCompany who either responds to such a general solicitation for employment or otherwise contacts Interested Party on his or her own initiative and\nwithout solicitation by Interested Party in contravention of the above restriction. Additionally, the above restriction shall not be deemed to prohibit\nInterested Party from making offers of employment or offering retention packages to any employees of Company or any of its affiliates in\nconnection with the Proposed Transaction, provided that such offers have been disclosed to the Board of Directors of the Company.\n4. SECURITIES ISSUES.\n4.1 No Public Disclosure Required. Each party expressly confirms and agrees that, as of the date hereof, it is not required to make any public\ndisclosure with respect to (a) the Proposed Transaction (or the terms or conditions or any other facts relating thereto), (b) any item of Proprietary\nInformation (or the fact that Proprietary Information has been made available to such party), or (c) any discussions or negotiations taking place\nbetween the parties with respect to the Proposed Transaction, whether pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”), the rules and regulations promulgated thereunder, or similar requirements related to general disclosure. If, after the date of this Agreement,\neither party determines that any such disclosure is required, no such disclosure shall be made unless and until such party consults with the other party\nregarding the necessity and form of any such disclosure, and provides the other party a reasonable opportunity to review the proposed disclosure and\ncomment thereon.\n4.2 Restrictions on Sales of Securities. Each party is aware, and will advise its Representatives who are informed of the matters that are the\nsubject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who\nhas received material, non-public information from the issuer of such securities and on the communication of such information to any other person\nwhen it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. However, this\nwill not prevent Receiving Party from purchasing stock through its benefit plans in the ordinary course of business.\n5. OWNERSHIP.\nAll Proprietary Information (including, without limitation, all copies, extracts and portions thereof) is and shall remain the sole property of\nDisclosing Party, provided, that all Derived Information shall be the sole property of Receiving Party. Receiving Party does not acquire (by license or\notherwise, whether express or implied) any intellectual property rights or other rights under this Agreement or any disclosure hereunder, except the\nlimited right to use such Proprietary Information in accordance with the express provisions of this Agreement. All rights relating to the Proprietary\nInformation that are not expressly granted hereunder to Interested Party are reserved and retained by Disclosing Party.\n6. TERM.\nExcept as otherwise provided herein, the obligations of this Agreement, including the restrictions on disclosure and use, shall terminate on the\nsecond anniversary of the Effective Date; provided that Sections 2.5, 2.6, and 2.7 and Articles 4, 5, 6, 7, 8 and 9 shall survive any termination of this\nAgreement.\n7. REMEDIES.\nReceiving Party agrees that, due to the unique nature of the Proprietary Information, the unauthorized disclosure or use of the Proprietary\nInformation may cause injury to Disclosing Party, the extent of which will be difficult to ascertain and for which there may be no adequate remedy at\nlaw. Accordingly, Receiving Party agrees that Disclosing Company, in addition to any other available\nremedies, may have the right to seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Agreement\nas ordered by the court. Receiving Party shall notify Disclosing Party immediately if Receiving Party has reason to believe that any person who has\nhad access to the Proprietary Information (including Receiving Party or any of its Representatives) has violated or intends to violate the terms of this\nAgreement or otherwise disclose any Proprietary Information in violation of the terms hereof. Any and all remedies herein expressly conferred upon\na party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the\nexercise by a party of any one remedy will not preclude the exercise of any other remedy.\n8. RETURN OF MATERIALS.\nIf either party hereto shall determine that it does not wish to proceed with the Proposed Transaction, such party shall promptly advise the other\nparty of that decision. In that case, or if the Proposed Transaction otherwise is not consummated for any reason, Receiving Party shall, upon\nDisclosing Party’s written request, promptly deliver to Disclosing Party all Proprietary Information, and, at Disclosing Party’s sole election, return or\ndestroy (provided that any such destruction shall be certified by a duly authorized Representative of Receiving Party) all copies, reproductions,\nsummaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer\nfiles) in Receiving Party’s or any of its Representatives’ possession; provided, that if a legal proceeding has been instituted to seek disclosure of the\nProprietary Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been\nrendered. However, Receiving Party may retain in the office of its legal counsel, one copy of Proprietary Information for record purposes only.\nNotwithstanding the return or destruction of any Proprietary Information, or documents or material containing or reflecting any Proprietary\nInformation, the parties will continue to be bound by their obligations of confidentiality and other obligations hereunder for the term of this\nAgreement (or such other term as may be applicable to the specific obligation), except as otherwise specifically provided herein.\n9. MISCELLANEOUS.\n9.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the confidentiality of the Proprietary\nInformation in connection with the Proposed Transaction and related matters and supersedes all prior or contemporaneous representations,\ndiscussions, proposals, negotiations, conditions, communications and agreements, whether oral or written, between the parties relating to the same\nand all past courses of dealing or industry custom.\n9.2 Beneficiaries. This Agreement shall inure to the benefit of and be binding upon Interested Party and Company and their respective\nsuccessors and permitted assigns.\n9.3 Amendments and Waivers. No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing\nand signed by duly authorized signatories of both parties. The waiver by either party of a breach of or a default under any provision of this\nAgreement shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor\nshall any delay or omission on the part of either party to exercise or avail itself of any right, power, privilege or remedy that it has or may have\nhereunder operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other further exercise of any such right, power,\nprivilege or remedy hereunder.\n9.4 Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota without regard\nto conflicts of laws principles.\n9.5 Jurisdiction; Waiver of Jury Trial. The parties hereto agree that any and all actions or proceedings seeking to enforce any provision of,\nor based on any right arising out of, this Agreement shall be brought in the courts of the State of California, County of Los Angeles, including\nFederal Courts located therein, should Federal jurisdiction requirements exist. Each of the parties consents to the jurisdiction of such courts (and of\nthe appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding\nreferred to in the preceding sentence may be served on any party anywhere in the world. The parties hereto specifically waive any right to a jury trial\nwith respect to any matter arising under this Agreement.\n9.6 Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, non-appealable\norder that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the reasonable costs and expenses\n(including reasonable legal fees and expenses) such non-breaching party has incurred in connection with the enforcement of this Agreement,\nincluding any appeal therefrom.\n9.7 Severability. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to\nbe invalid or unenforceable, the remaining portions hereof shall remain in full force and effect and such provision shall be enforced to the maximum\nextent possible so as to effect the intent of the parties, and shall in no way be affected, impaired or invalidated.\n9.8 Notices. Any notice or other communication required or permitted to be delivered under this Agreement shall be in writing and shall be\ndeemed effectively given: (i) upon personal delivery to the party to be notified; (ii) when sent by confirmed telex or facsimile if sent during normal\nbusiness hours of the recipient, if not, then on the next business day; (iii) three (3) days after having been sent by registered or certified mail, return\nreceipt requested, postage prepaid; or (iv) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with\nwritten verification of receipt, to the address or facsimile number set forth beneath the name of each party below (or to such other address or\nfacsimile number as such party may designate by five (5) days advance written notice to the other party hereto).\n9.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this\nAgreement and all of which, when taken together, will be deemed to constitute one and the same instrument.\n[SIGNATURES FOLLOW ON THE NEXT PAGE]\nIN WITNESS WHEREOF, the parties have duly authorized and caused this Non-Disclosure Agreement to be executed as follows:\nCOMPANY\nCogent, Inc.\nBy: /s/ Paul Kim\n(signature)\nName: Paul Kim\n(print)\nTitle: Chief Financial Officer\nINTERESTED PARTY\n3M Company\nBy: /s/ David G. Fellner\n(signature)\nName: David G. Fellner\n(print)\nTitle: Manager, Corporate Development\nAMENDMENT NO. 1 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 1 to Non-Disclosure Agreement (this “Amendment”) dated as of May 31st, 2010 (the “Amendment Date”), is entered\ninto between Cogent, Inc., a Delaware corporation (“Company” or “Disclosing Party”) and 3M Company, a Delaware corporation (“Interested\nParty” or “Receiving Party”) (collectively the “Parties”).\nWHEREAS, the Parties previously entered into a Non-Disclosure Agreement dated as of July 31, 2008 (the “Non-Disclosure Agreement”);\nWHEREAS, the Parties wish to amend the Non-Disclosure Agreement in certain respects on the terms and conditions set forth herein.\nNOW THEREFORE, the Parties hereby agree as follows:\n1. Section 3.1 of the Non-Disclosure Agreement is hereby amended by replacing “one year anniversary of the Effective Date” in the second\nline of such section with “three year anniversary of the Effective Date.”\n2. Section 6 of the Non-Disclosure Agreement is hereby amended by replacing “second anniversary of the Effective Date” in the second line of\nsuch section with “fourth anniversary of the Effective Date.”\n3. This Amendment shall be effective for all purposes as of the Amendment Date. The terms and conditions set forth in this Amendment are in\naddition to the terms of the Non-Disclosure Agreement which, except as amended in this Amendment, shall continue to remain in full force and\neffect in accordance with its terms. Any capitalized terms not otherwise defined herein shall have the meanings given such terms in the Non-\nDisclosure Agreement.\n4. This Amendment may be executed in counterparts, each of which shall be deemed to be an original and together shall be deemed to be one\nand the same document.\nIN WITNESS WHEREOF, the Parties have caused this Amendment to be executed by their respective duly authorized representatives\neffective as of the Amendment Date.\n3M Company\nCogent, Inc.\nBy: /s/ David G. Fellner\nBy: /s/ Paul Kim\nName: David G. Fellner\nName: Paul Kim\nTitle: Manager, 3M Corporate Development\nTitle: Chief Financial Officer	EX-99.E.3 4 dex99e3.htm NON-DISCLOSURE AGREEMENT\nExhibit (e)(3)\nNON-DISCLOSURE AGREEMENT\nIn connection with a potential transaction (“Proposed Transaction”) between 3M Company (“Interested Party” or “Receiving Party”), and\nCogent, Inc., a Delaware corporation (“Company” or “Disclosing Party”), the parties wish to protect and preserve the confidential and/or\nproprietary nature of certain information and materials of the Company that may be disclosed or made available to the Interested Party or its\nRepresentatives (as defined below) in connection with certain discussions, negotiations or dealings between the parties relating to the Proposed\nTransaction.\nIn consideration of the foregoing and the rights and obligations set forth herein, both parties hereby agree as of July 31, 2008 (the “Effective\nDate”):\n1. PROPRIETARY INFORMATION AND OTHER DEFINITIONS.\n1.1 “Proprietary Information” means any and all information and material disclosed by Disclosing Party or any of its Representatives to\nReceiving Party or any of its Representatives in connection with the Proposed Transaction or in the course of the parties’ evaluation and negotiation\nof the Proposed Transaction, together with all communications, data, reports, analyses, compilations, studies, interpretations, records, notes, lists,\nfinancial statements or other materials or information prepared by Receiving Party or any of its Representatives that contain or otherwise reflect or\nare based upon, in whole or in part, any Proprietary Information of Disclosing Party or that reflect the review of, interest in, or evaluation of all or\nany portion of the Proposed Transaction or Disclosing Party’s business (collectively, “Derived Information”), whether tangible or intangible,\nfurnished or prepared in writing or in oral, graphic, electronic or any other form or manner. In addition, Proprietary Information shall include (x) the\nfact that discussions or negotiations are taking place concerning the Proposed Transaction or that Interested Party has made or may make an offer to\nacquire Company’s stock or assets or that any Proprietary Information has been shared between the parties and their respective Representatives in\nconnection therewith, (y) the proposed terms and conditions of the Proposed Transaction (including any financial terms and conditions) and the\nstatus thereof, and (z) the existence, context, and scope of this Agreement.\nProprietary Information shall not include information that: (i) is or becomes generally available to the public other than as a result of any\ndisclosure or other action or inaction by Receiving Party in breach of this Agreement (including any disclosure or other action or inaction by\nRepresentatives of Receiving Party that would constitute a breach of this Agreement if undertaken by Receiving Party itself); (ii) is or becomes\nknown or available to Receiving Party or any of its Representatives on a non-confidential basis from a source (other than Disclosing Party or any of\nits subsidiaries, affiliates or Representatives) that, to the best of the knowledge of Receiving Party, is not prohibited from disclosing such Proprietary\nInformation to Receiving Party by a contractual, legal or fiduciary obligation; or (iii) is or was independently developed by Receiving Party or any of\nits Representatives without violation of any obligation under this Agreement.\n1.2 “Representatives” means as to any person, its directors, officers, employees, agents and advisors (including, without limitation, financial\nadvisors, financing sources, attorneys, accountants and their respective Representatives).\n1.3 “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.\n2. NON-DISCLOSURE AND LIMITED USE.\n2.1 Non-Disclosure. Without the written consent of Disclosing Party and except as otherwise required by applicable law, Receiving Party shall\nkeep, and shall cause its Representatives to keep, all Proprietary Information confidential and shall not disclose or reveal, and shall cause its\nRepresentatives not to disclose or reveal, in any manner whatsoever, in whole or in part, any Proprietary Information to any person, other than to its\nRepresentatives who are actively and directly participating in its evaluation of the Proposed Transaction or who otherwise need to know the\nProprietary Information for the purpose of evaluating the Proposed Transaction and who are bound by restrictions regarding the disclosure and use of\nsuch Proprietary Information (either contractual, legal or fiduciary) owed to Company, Interested Party or any their respective Representatives that\nare comparable to and no less restrictive than those set forth in this Agreement. Each party shall inform all of its respective Representatives and shall\ncause its respective Representatives to inform their Representatives who receive Proprietary Information hereunder of the confidential nature of such\ninformation and the Proposed Transaction, as well as the terms of this Agreement. Receiving Party shall not, and shall cause its Representatives to\nnot, use any Proprietary Information for any purpose other than to evaluate the Proposed Transaction or in connection with the consummation of the\nProposed Transaction. Each party shall be responsible for any breach of the terms of this Agreement by it or its Representatives.\n2.2 Degree of Care. Receiving Party shall take the same degree of care that it uses to protect its own confidential and proprietary information\nof similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the use, disclosure, publication or\ndissemination of the Proprietary Information of Disclosing Party. Receiving Party shall not, and shall cause its Representatives to not, decompile,\ndisassemble or otherwise reverse engineer (except to the extent expressly permitted by applicable law, notwithstanding a contractual obligation to the\ncontrary) any Proprietary Information or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or\ntechniques embodied in any Proprietary Information or any portion thereof. Receiving Party shall not use Proprietary Information for any purpose or\nin any manner that would constitute a violation of any laws or regulations, including without limitation the export control laws of the United States.\n2.3 Designated Representatives. Neither Interested Party nor its Representatives shall initiate or maintain contact with any officer, director,\nstockholder, employee or agent of Company or its subsidiaries regarding the Proposed Transaction, except with the express consent of Company. All\n(i) communications regarding the Proposed Transaction, (ii) requests for additional information, (iii) requests for on-site access or management\nmeetings and (iv) discussions or questions regarding procedures, will be submitted or directed to the Representatives designated by the Company.\n2.4 Compelled Disclosure of Proprietary Information. If Receiving Party or any of its Representatives are requested pursuant to, or required\nby, applicable law or regulation (including, without limitation, any rule, regulation or policy statement of any national securities exchange, market or\nautomated quotation system on which any of Receiving Party’s securities are listed or quoted) or by legal process to disclose any Proprietary\nInformation, or any other information concerning Disclosing Party, its subsidiaries or affiliates, Receiving Party shall provide Disclosing Party with\nprompt notice of such request or requirement, in order to enable Disclosing Party (a) to seek an appropriate protective order or other remedy, (b) to\nconsult with Receiving Party with respect to Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process or (c) to\nwaive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or\nDisclosing Party waives compliance, in whole or in part, with the terms of this Agreement, Receiving Party or its Representatives, as the case may\nbe, shall use commercially reasonable efforts to disclose only that portion of the Proprietary Information which Receiving Party is advised by legal\ncounsel is legally required to be disclosed and exercise its commercially reasonable efforts to obtain reliable assurances that confidential treatment\nwill be accorded to the Proprietary Information so disclosed.\n \n2.5 Attorney-Client Privilege. To the extent that any Proprietary Information may include material subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the\nparties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual\nunderstanding that the disclosure of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material\nor its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege and any such Proprietary\nInformation shall remain entitled to all protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this\nAgreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\n2.6 Definitive Agreement. Until a definitive agreement regarding the Proposed Transaction has been executed by the parties hereto, neither\nparty hereto shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to the Proposed\nTransaction by virtue of this Agreement or otherwise (other than with respect to the confidentiality and other matters set forth herein). Each party\nhereto and its Representatives (i) may conduct the process that may or may not result in the Proposed Transaction in such manner as such party, in its\nsole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice\nto the other party) and (ii) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating\nto the parties’ consideration of the Proposed Transaction (including, without limitation, terminating all further discussions with the other party). For\npurposes of this Agreement, the term “definitive agreement” does not include an executed letter of intent or any other preliminary written agreement\nin principle.\n2.7 No Representations or Warranties Regarding Proprietary Information. Subject to the terms and conditions of a definitive agreement\nregarding the Proposed Transaction and without prejudice thereto, each party acknowledges that neither the other party nor its Representatives nor\nany of the officers, directors, employees, agents or controlling persons of such Representatives makes any express or implied representation or\nwarranty as to the completeness of the Proprietary Information or any use thereof. Each party hereby expressly disclaims all such warranties,\nincluding any implied warranties of merchantability and fitness for a particular purpose, non-infringement and accuracy, and any warranties arising\nout of course of performance, course of dealing or usage of trade. Receiving Party shall not be entitled to rely on the completeness of any Proprietary\nInformation, but shall be entitled to rely solely on such representations and warranties regarding the completeness of the Proprietary Information as\nmay be made to it in a definitive agreement relating to the Proposed Transaction, subject to the terms and conditions of any such agreement, should\nthe discussions between the parties progress to such a point.\n3. NO SOLICITATION.\n3.1 No Solicitation of Employees. Interested Party agrees that neither it nor its affiliates will at any time until the one year anniversary of the\nEffective Date, directly or indirectly, employ or solicit for employment (i) any key technical or management personnel of the Company that has first\nbeen introduced by the Company to the Interested Party in connection with the Proposed Transaction or who was otherwise substantively involved in\nthe discussions of the Proposed Transaction or (ii) any other person who is now employed as an officer of the other party or any of its affiliates;\nprovided, that the foregoing restriction shall not be deemed to prohibit Interested Party or its Representatives from making general public\nsolicitations for employment for any position or from employing any employee of the\nCompany who either responds to such a general solicitation for employment or otherwise contacts Interested Party on his or her own initiative and\nwithout solicitation by Interested Party in contravention of the above restriction. Additionally, the above restriction shall not be deemed to prohibit\nInterested Party from making offers of employment or offering retention packages to any employees of Company or any of its affiliates in\nconnection with the Proposed Transaction, provided that such offers have been disclosed to the Board of Directors of the Company.\n4, SECURITIES ISSUES.\n4.1 No Public Disclosure Required. Each party expressly confirms and agrees that, as of the date hereof, it is not required to make any public\ndisclosure with respect to (a) the Proposed Transaction (or the terms or conditions or any other facts relating thereto), (b) any item of Proprietary\nInformation (or the fact that Proprietary Information has been made available to such party), or (c) any discussions or negotiations taking place\nbetween the parties with respect to the Proposed Transaction, whether pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”), the rules and regulations promulgated thereunder, or similar requirements related to general disclosure. If, after the date of this Agreement,\neither party determines that any such disclosure is required, no such disclosure shall be made unless and until such party consults with the other party\nregarding the necessity and form of any such disclosure, and provides the other party a reasonable opportunity to review the proposed disclosure and\ncomment thereon.\n4.2 Restrictions on Sales of Securities. Each party is aware, and will advise its Representatives who are informed of the matters that are the\nsubject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who\nhas received material, non-public information from the issuer of such securities and on the communication of such information to any other person\nwhen it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. However, this\nwill not prevent Receiving Party from purchasing stock through its benefit plans in the ordinary course of business.\n5. OWNERSHIP.\nAll Proprietary Information (including, without limitation, all copies, extracts and portions thereof) is and shall remain the sole property of\nDisclosing Party, provided, that all Derived Information shall be the sole property of Receiving Party. Receiving Party does not acquire (by license or\notherwise, whether express or implied) any intellectual property rights or other rights under this Agreement or any disclosure hereunder, except the\nlimited right to use such Proprietary Information in accordance with the express provisions of this Agreement. All rights relating to the Proprietary\nInformation that are not expressly granted hereunder to Interested Party are reserved and retained by Disclosing Party.\n6. TERM.\nExcept as otherwise provided herein, the obligations of this Agreement, including the restrictions on disclosure and use, shall terminate on the\nsecond anniversary of the Effective Date; provided that Sections 2.5, 2.6, and 2.7 and Articles 4, 5, 6, 7, 8 and 9 shall survive any termination of this\nAgreement.\n7. REMEDIES.\nReceiving Party agrees that, due to the unique nature of the Proprietary Information, the unauthorized disclosure or use of the Proprietary\nInformation may cause injury to Disclosing Party, the extent of which will be difficult to ascertain and for which there may be no adequate remedy at\nlaw. Accordingly, Receiving Party agrees that Disclosing Company, in addition to any other available\nremedies, may have the right to seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Agreement\nas ordered by the court. Receiving Party shall notify Disclosing Party immediately if Receiving Party has reason to believe that any person who has\nhad access to the Proprietary Information (including Receiving Party or any of its Representatives) has violated or intends to violate the terms of this\nAgreement or otherwise disclose any Proprietary Information in violation of the terms hereof. Any and all remedies herein expressly conferred upon\na party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the\nexercise by a party of any one remedy will not preclude the exercise of any other remedy.\n8. RETURN OF MATERIALS.\nIf either party hereto shall determine that it does not wish to proceed with the Proposed Transaction, such party shall promptly advise the other\nparty of that decision. In that case, or if the Proposed Transaction otherwise is not consummated for any reason, Receiving Party shall, upon\nDisclosing Party’s written request, promptly deliver to Disclosing Party all Proprietary Information, and, at Disclosing Party’s sole election, return or\ndestroy (provided that any such destruction shall be certified by a duly authorized Representative of Receiving Party) all copies, reproductions,\nsummaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer\nfiles) in Receiving Party’s or any of its Representatives’ possession; provided, that if a legal proceeding has been instituted to seek disclosure of the\nProprietary Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been\nrendered. However, Receiving Party may retain in the office of its legal counsel, one copy of Proprietary Information for record purposes only.\nNotwithstanding the return or destruction of any Proprietary Information, or documents or material containing or reflecting any Proprietary\nInformation, the parties will continue to be bound by their obligations of confidentiality and other obligations hereunder for the term of this\nAgreement (or such other term as may be applicable to the specific obligation), except as otherwise specifically provided herein.\n9. MISCELLANEOUS.\n9.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the confidentiality of the Proprietary\nInformation in connection with the Proposed Transaction and related matters and supersedes all prior or contemporaneous representations,\ndiscussions, proposals, negotiations, conditions, communications and agreements, whether oral or written, between the parties relating to the same\nand all past courses of dealing or industry custom.\n9.2 Beneficiaries. This Agreement shall inure to the benefit of and be binding upon Interested Party and Company and their respective\nsuccessors and permitted assigns.\n9.3 Amendments and Waivers. No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing\nand signed by duly authorized signatories of both parties. The waiver by either party of a breach of or a default under any provision of this\nAgreement shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor\nshall any delay or omission on the part of either party to exercise or avail itself of any right, power, privilege or remedy that it has or may have\nhereunder operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other further exercise of any such right, power,\nprivilege or remedy hereunder.\n9.4 Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota without regard\nto conflicts of laws principles.\n9.5 Jurisdiction;_Waiver of Jury Trial. The parties hereto agree that any and all actions or proceedings seeking to enforce any provision of,\nor based on any right arising out of, this Agreement shall be brought in the courts of the State of California, County of Los Angeles, including\nFederal Courts located therein, should Federal jurisdiction requirements exist. Each of the parties consents to the jurisdiction of such courts (and of\nthe appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding\nreferred to in the preceding sentence may be served on any party anywhere in the world. The parties hereto specifically waive any right to a jury trial\nwith respect to any matter arising under this Agreement.\n9.6 Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, non-appealable\norder that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the reasonable costs and expenses\n(including reasonable legal fees and expenses) such non-breaching party has incurred in connection with the enforcement of this Agreement,\nincluding any appeal therefrom.\n9.7 Severability. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to\nbe invalid or unenforceable, the remaining portions hereof shall remain in full force and effect and such provision shall be enforced to the maximum\nextent possible so as to effect the intent of the parties, and shall in no way be affected, impaired or invalidated.\n9.8 Notices. Any notice or other communication required or permitted to be delivered under this Agreement shall be in writing and shall be\ndeemed effectively given: (i) upon personal delivery to the party to be notified; (ii) when sent by confirmed telex or facsimile if sent during normal\nbusiness hours of the recipient, if not, then on the next business day; (iii) three (3) days after having been sent by registered or certified mail, return\nreceipt requested, postage prepaid; or (iv) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with\nwritten verification of receipt, to the address or facsimile number set forth beneath the name of each party below (or to such other address or\nfacsimile number as such party may designate by five (5) days advance written notice to the other party hereto).\n9.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this\nAgreement and all of which, when taken together, will be deemed to constitute one and the same instrument.\n[SIGNATURES FOLLOW ON THE NEXT PAGE]\nIN WITNESS WHEREOF, the parties have duly authorized and caused this Non-Disclosure Agreement to be executed as follows:\nCOMPANY\nCogent, Inc.\nBy: /s/ Paul Kim\n(signature)\nName: Paul Kim\n(print)\nTitle:  Chief Financial Officer\nINTERESTED PARTY\n3M Company\nBy: /s/ David G. Fellner\n(signature)\nName: David G. Fellner\n(print)\nTitle: Manager, Corporate Development\nAMENDMENT NO. 1 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 1 to Non-Disclosure Agreement (this “Amendment”) dated as of May 31st, 2010 (the “Amendment Date”), is entered\ninto between Cogent, Inc., a Delaware corporation (“Company” or “Disclosing Party”) and 3M Company, a Delaware corporation (“Interested\nParty” or “Receiving Party”) (collectively the “Parties”).\nWHEREAS, the Parties previously entered into a Non-Disclosure Agreement dated as of July 31, 2008 (the “Non-Disclosure Agreement”);\nWHEREAS, the Parties wish to amend the Non-Disclosure Agreement in certain respects on the terms and conditions set forth herein.\nNOW THEREFORE, the Parties hereby agree as follows:\n1. Section 3.1 of the Non-Disclosure Agreement is hereby amended by replacing “one year anniversary of the Effective Date” in the second\nline of such section with “three year anniversary of the Effective Date.”\n2. Section 6 of the Non-Disclosure Agreement is hereby amended by replacing “second anniversary of the Effective Date” in the second line of\nsuch section with “fourth anniversary of the Effective Date.”\n3. This Amendment shall be effective for all purposes as of the Amendment Date. The terms and conditions set forth in this Amendment are in\naddition to the terms of the Non-Disclosure Agreement which, except as amended in this Amendment, shall continue to remain in full force and\neffect in accordance with its terms. Any capitalized terms not otherwise defined herein shall have the meanings given such terms in the Non-\nDisclosure Agreement.\n4. This Amendment may be executed in counterparts, each of which shall be deemed to be an original and together shall be deemed to be one\nand the same document.\nIN WITNESS WHEREOF, the Parties have caused this Amendment to be executed by their respective duly authorized representatives\neffective as of the Amendment Date.\n3M Company Cogent, Inc.\nBy:  /s/David G. Fellner By: /s/ Paul Kim\nName: David G. Fellner Name: Paul Kim\nTitle: Manager, 3M Corporate Development Title: Chief Financial Officer	EX-99.E.3 4 dex99e3.htm NON-DISCLOSURE AGREEMENT\nExhibit (e)(3)\nNON-DISCLOSURE AGREEMENT\nIn connection with a potential transaction ("Proposed Transaction") between 3M Company ("Interested Party" or "Receiving Party"), and\nCogent, Inc., a Delaware corporation ("Company" or "Disclosing Party"), the parties wish to protect and preserve the confidential and/or\nproprietary nature of certain information and materials of the Company that may be disclosed or made available to the Interested Party or its\nRepresentatives (as defined below) in connection with certain discussions, negotiations or dealings between the parties relating to the Proposed\nTransaction.\nIn consideration of the foregoing and the rights and obligations set forth herein, both parties hereby agree as of July 31, 2008 (the "Effective\nDate"):\n1.\nPROPRIETARY INFORMATION AND OTHER DEFINITIONS.\n1.1 "Proprietary Information" means any and all information and material disclosed by Disclosing Party or any of its Representatives to\nReceiving Party or any of its Representatives in connection with the Proposed Transaction or in the course of the parties' evaluation and negotiation\nof the Proposed Transaction, together with all communications, data, reports, analyses, compilations, studies, interpretations, records, notes, lists,\nfinancial statements or other materials or information prepared by Receiving Party or any of its Representatives that contain or otherwise reflect or\nare based upon, in whole or in part, any Proprietary Information of Disclosing Party or that reflect the review of, interest in, or evaluation of all or\nany portion of the Proposed Transaction or Disclosing Party's business (collectively, "Derived Information"), whether tangible or intangible,\nfurnished or prepared in writing or in oral, graphic, electronic or any other form or manner. In addition, Proprietary Information shall include (x) the\nfact that discussions or negotiations are taking place concerning the Proposed Transaction or that Interested Party has made or may make an offer\nto\nacquire Company's stock or assets or that any Proprietary Information has been shared between the parties and their respective Representatives in\nconnection therewith, (y) the proposed terms and conditions of the Proposed Transaction (including any financial terms and conditions) and the\nstatus thereof, and (z) the existence, context, and scope of this Agreement.\nProprietary Information shall not include information that: (i) is or becomes generally available to the public other than as a result of any\ndisclosure or other action or inaction by Receiving Party in breach of this Agreement (including any disclosure or other action or inaction by\nRepresentatives of Receiving Party that would constitute a breach of this Agreement if undertaken by Receiving Party itself); (ii) is or becomes\nknown or available to Receiving Party or any of its Representatives on a non-confidential basis from a source (other than Disclosing Party or any of\nits subsidiaries, affiliates or Representatives) that, to the best of the knowledge of Receiving Party, is not prohibited from disclosing such Proprietary\nInformation to Receiving Party by a contractual, legal or fiduciary obligation; or (iii) is or was independently developed by Receiving Party or any\nof\nits Representatives without violation of any obligation under this Agreement.\n1.2 "Representatives" means as to any person, its directors, officers, employees, agents and advisors (including, without limitation, financial\nadvisors, financing sources, attorneys, accountants and their respective Representatives).\n1.3 "person" shall be broadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.\n2.\nNON-DISCLOSURE AND LIMITED USE.\n2.1 Non-Disclosure. Without the written consent of Disclosing Party and except as otherwise required by applicable law, Receiving Party shall\nkeep, and shall cause its Representatives to keep, all Proprietary Information confidential and shall not disclose or reveal, and shall cause its\nRepresentatives not to disclose or reveal, in any manner whatsoever, in whole or in part, any Proprietary Information to any person, other than to its\nRepresentatives who are actively and directly participating in its evaluation of the Proposed Transaction or who otherwise need to know the\nProprietary Information for the purpose of evaluating the Proposed Transaction and who are bound by restrictions regarding the disclosure and use of\nsuch Proprietary Information (either contractual, legal or fiduciary) owed to Company, Interested Party or any their respective Representatives that\nare comparable to and no less restrictive than those set forth in this Agreement. Each party shall inform all of its respective Representatives and shall\ncause its respective Representatives to inform their Representatives who receive Proprietary Information hereunder of the confidential nature of such\ninformation and the Proposed Transaction, as well as the terms of this Agreement. Receiving Party shall not, and shall cause its Representatives to\nnot, use any Proprietary Information for any purpose other than to evaluate the Proposed Transaction or in connection with the consummation of the\nProposed Transaction. Each party shall be responsible for any breach of the terms of this Agreement by it or its Representatives.\n2.2 Degree of Care. Receiving Party shall take the same degree of care that it uses to protect its own confidential and proprietary information\nof similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the use, disclosure, publication or\ndissemination of the Proprietary Information of Disclosing Party. Receiving Party shall not, and shall cause its Representatives to not, decompile,\ndisassemble or otherwise reverse engineer (except to the extent expressly permitted by applicable law, notwithstanding a contractual obligation to the\ncontrary) any Proprietary Information or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or\ntechniques embodied in any Proprietary Information or any portion thereof. Receiving Party shall not use Proprietary Information for any purpose or\nin\nany manner that would constitute a violation of any laws or regulations, including without limitation the export control laws of the United States.\n2.3 Designated Representatives. Neither Interested Party nor its Representatives shall initiate or maintain contact with any officer, director,\nstockholder, employee or agent of Company or its subsidiaries regarding the Proposed Transaction, except with the express consent of Company. All\n(i) communications regarding the Proposed Transaction (ii) requests for additional information, (iii) requests for on-site access or management\nmeetings and (iv) discussions or questions regarding procedures, will be submitted or directed to the Representatives designated by the Company.\n2.4 Compelled Disclosure of Proprietary Information. If Receiving Party or any of its Representatives are requested pursuant to, or required\nby, applicable law or regulation (including, without limitation, any rule, regulation or policy statement of any national securities exchange, market or\nautomated quotation system on which any of Receiving Party's securities are listed or quoted) or by legal process to disclose any Proprietary\nInformation, or any other information concerning Disclosing Party, its subsidiaries or affiliates, Receiving Party shall provide Disclosing Party with\nprompt notice of such request or requirement, in order to enable Disclosing Party (a) to seek an appropriate protective order or other remedy, (b)\nto\nconsult with Receiving Party with respect to Disclosing Party's taking steps to resist or narrow the scope of such request or legal process or (c) to\nwaive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or\nDisclosing Party waives compliance, in whole or in part, with the terms of this Agreement, Receiving Party or its Representatives, as the case may\nbe, shall use commercially reasonable efforts to disclose only that portion of the Proprietary Information which Receiving Party is advised by\nlegal\ncounsel is legally required to be disclosed and exercise its commercially reasonable efforts to obtain reliable assurances that confidential treatment\nwill be accorded to the Proprietary Information so disclosed.\n2.5 Attorney-Client Privilege. To the extent that any Proprietary Information may include material subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the\nparties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual\nunderstanding that the disclosure of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material\nor its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege and any such Proprietary\nInformation shall remain entitled to all protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this\nAgreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\n2.6 Definitive Agreement. Until a definitive agreement regarding the Proposed Transaction has been executed by the parties hereto, neither\nparty hereto shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to the Proposed\nTransaction by virtue of this Agreement or otherwise (other than with respect to the confidentiality and other matters set forth herein). Each party\nhereto and its Representatives (i) may conduct the process that may or may not result in the Proposed Transaction in such manner as such party, in its\nsole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice\nto\nthe other party) and (ii) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating\nto the parties' consideration of the Proposed Transaction (including, without limitation, terminating all further discussions with the other party). For\npurposes of this Agreement, the term "definitive agreement" does not include an executed letter of intent or any other preliminary written agreement\nin principle.\n2.7 No Representations or Warranties Regarding Proprietary. Information. Subject to the terms and conditions of a definitive agreement\nregarding the Proposed Transaction and without prejudice thereto, each party acknowledges that neither the other party nor its Representatives nor\nany of the officers, directors, employees, agents or controlling persons of such Representatives makes any express or implied representation or\nwarranty as to the completeness of the Proprietary Information or any use thereof. Each party hereby expressly disclaims all such warranties,\nincluding any implied warranties of merchantability and fitness for a particular purpose, non-infringement and accuracy, and any warranties arising\nout of course of performance, course of dealing or usage of trade. Receiving Party shall not be entitled to rely on the completeness of any Proprietary\nInformation, but shall be entitled to rely solely on such representations and warranties regarding the completeness of the Proprietary Information as\nmay be made to it in a definitive agreement relating to the Proposed Transaction, subject to the terms and conditions of any such agreement, should\nthe discussions between the parties progress to such a point.\n3.\nNo SOLICITATION.\n3.1 No Solicitation of Employees. Interested Party agrees that neither it nor its affiliates will at any time until the one year anniversary of the\nEffective Date, directly or indirectly, employ or solicit for employment (i) any key technical or management personnel of the Company that has first\nbeen introduced by the Company to the Interested Party in connection with the Proposed Transaction or who was otherwise substantively involved\nin\nthe discussions of the Proposed Transaction or (ii) any other person who is now employed as an officer of the other party or any of its affiliates;\nprovided, that the foregoing restriction shall not be deemed to prohibit Interested Party or its Representatives from making general public\nsolicitations for employment for any position or from employing any employee of the\nCompany who either responds to such a general solicitation for employment or otherwise contacts Interested Party on his or her own initiative and\nwithout solicitation by Interested Party in contravention of the above restriction. Additionally, the above restriction shall not be deemed to prohibit\nInterested Party from making offers of employment or offering retention packages to any employees of Company or any of its affiliates in\nconnection with the Proposed Transaction, provided that such offers have been disclosed to the Board of Directors of the Company.\n4.\nSECURITIES ISSUES.\n4.1 No Public Disclosure Required. Each party expressly confirms and agrees that, as of the date hereof, it is not required to make any public\ndisclosure with respect to (a) the Proposed Transaction (or the terms or conditions or any other facts relating thereto), (b) any item of Proprietary\nInformation (or the fact that Proprietary Information has been made available to such party), or (c) any discussions or negotiations taking place\nbetween the parties with respect to the Proposed Transaction, whether pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange\nAct"), the rules and regulations promulgated thereunder, or similar requirements related to general disclosure. If, after the date of this Agreement,\neither party determines that any such disclosure is required, no such disclosure shall be made unless and until such party consults with the other party\nregarding the necessity and form of any such disclosure, and provides the other party a reasonable opportunity to review the proposed disclosure and\ncomment thereon.\n4.2 Restrictions on Sales of Securities. Each party is aware, and will advise its Representatives who are informed of the matters that are the\nsubject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who\nhas received material, non-public information from the issuer of such securities and on the communication of such information to any other person\nwhen it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. However, this\nwill not prevent Receiving Party from purchasing stock through its benefit plans in the ordinary course of business.\n5. OWNERSHIP.\nAll Proprietary Information (including, without limitation, all copies, extracts and portions thereof) is and shall remain the sole property of\nDisclosing Party, provided, that all Derived Information shall be the sole property of Receiving Party. Receiving Party does not acquire (by license or\notherwise, whether express or implied) any intellectual property rights or other rights under this Agreement or any disclosure hereunder, except the\nlimited right to use such Proprietary Information in accordance with the express provisions of this Agreement. All rights relating to the Proprietary\nInformation that are not expressly granted hereunder to Interested Party are reserved and retained by Disclosing Party.\n6. TERM.\nExcept as otherwise provided herein, the obligations of this Agreement, including the restrictions on disclosure and use, shall\nterminate\non\nthe\nsecond anniversary of the Effective Date; provided that Sections 2.5, 2.6, and 2.7 and Articles 4, 5, 6, 7, 8 and 9 shall survive any termination of this\nAgreement.\n7. REMEDIES.\nReceiving Party agrees that, due to the unique nature of the Proprietary Information, the unauthorized disclosure or use of the Proprietary\nInformation may cause injury to Disclosing Party, the extent of which will be difficult to ascertain and for which there may be no adequate remedy\nat\nlaw. Accordingly, Receiving Party agrees that Disclosing Company, in addition to any other available\nremedies, may have the right to seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Agreement\nas ordered by the court. Receiving Party shall notify Disclosing Party immediately if Receiving Party has reason to believe that any person who has\nhad access to the Proprietary Information (including Receiving Party or any of its Representatives) has violated or intends to violate the terms of this\nAgreement or otherwise disclose any Proprietary Information in violation of the terms hereof. Any and all remedies herein expressly conferred upon\na party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the\nexercise by a party of any one remedy will not preclude the exercise of any other remedy.\n8.\nRETURN OF MATERIALS.\nIf either party hereto shall determine that it does not wish to proceed with the Proposed Transaction, such party shall promptly advise the other\nparty of that decision. In that case, or if the Proposed Transaction otherwise is not consummated for any reason, Receiving Party shall, upon\nDisclosing Party's written request, promptly deliver to Disclosing Party all Proprietary Information, and, at Disclosing Party's sole election, return or\ndestroy (provided that any such destruction shall be certified by a duly authorized Representative of Receiving Party) all copies, reproductions,\nsummaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer\nfiles) in Receiving Party's or any of its Representatives' possession; provided, that if a legal proceeding has been instituted to seek disclosure of the\nProprietary Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been\nrendered. However, Receiving Party may retain in the office of its legal counsel, one copy of Proprietary Information for record purposes only.\nNotwithstanding the return or destruction of any Proprietary Information, or documents or material containing or reflecting any Proprietary\nInformation, the parties will continue to be bound by their obligations of confidentiality and other obligations hereunder for the term of this\nAgreement (or such other term as may be applicable to the specific obligation), except as otherwise specifically provided herein.\n9. MISCELLANEOUS.\n9.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the confidentiality of the Proprietary\nInformation in connection with the Proposed Transaction and related matters and supersedes all prior or contemporaneous representations,\ndiscussions, proposals, negotiations, conditions, communications and agreements, whether oral or written, between the parties relating to the same\nand all past courses of dealing or industry custom.\n9.2 Beneficiaries. This Agreement shall inure to the benefit of and be binding upon Interested Party and Company and their respective\nsuccessors and permitted assigns.\n9.3 Amendments and Waivers. No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing\nand signed by duly authorized signatories of both parties. The waiver by either party of a breach of or a default under any provision of this\nAgreement shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor\nshall any delay or omission on the part of either party to exercise or avail itself of any right, power, privilege or remedy that it has or may have\nhereunder operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other further exercise of any such right, power,\nprivilege or remedy hereunder.\n9.4 Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota without regard\nto conflicts of laws principles.\n9.5 Jurisdiction; Waiver of Jury Trial. The parties hereto agree that any and all actions or proceedings seeking to enforce any provision of,\nor based on any right arising out of, this Agreement shall be brought in the courts of the State of California, County of Los Angeles, including\nFederal Courts located therein, should Federal jurisdiction requirements exist. Each of the parties consents to the jurisdiction of such courts (and\nof\nthe appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding\nreferred to in the preceding sentence may be served on any party anywhere in the world. The parties hereto specifically waive any right to a jury trial\nwith respect to any matter arising under this Agreement.\n9.6 Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, non-appealable\norder that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the reasonable costs and expenses\n(including reasonable legal fees and expenses) such non-breaching party has incurred in connection with the enforcement of this Agreement,\nincluding any appeal therefrom.\n9.7 Severability.. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to\nbe\ninvalid or unenforceable, the remaining portions hereof shall remain in full force and effect and such provision shall be enforced to the maximum\nextent possible so as to effect the intent of the parties, and shall in no way be affected, impaired or invalidated.\n9.8 Notices. Any notice or other communication required or permitted to be delivered under this Agreement shall be in writing and shall be\ndeemed effectively given: (i) upon personal delivery to the party to be notified; (ii) when sent by confirmed telex or facsimile if sent during normal\nbusiness hours of the recipient, if not, then on the next business day; (iii) three (3) days after having been sent by registered or certified mail, return\nreceipt requested, postage prepaid; or (iv) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with\nwritten verification of receipt, to the address or facsimile number set forth beneath the name of each party below (or to such other address or\nfacsimile number as such party may designate by five (5) days advance written notice to the other party hereto).\n9.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this\nAgreement and all of which, when taken together, will be deemed to constitute one and the same instrument.\n[SIGNATURES FOLLOW ON THE NEXT PAGE]\nIN WITNESS WHEREOF, the parties have duly authorized and caused this Non-Disclosure Agreement to be executed as follows:\nCOMPANy\nCogent, Inc.\nBy:\n/s/ Paul Kim\n(signature)\nName: Paul Kim\n(print)\nTitle: Chief Financial Officer\nINTERESTED PARTY\n3M Company\nBy:\n/s/ David G. Fellner\n(signature)\nName: David G. Fellner\n(print)\nTitle: Manager, Corporate Development\nAMENDMENT No. 1 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 1 to Non-Disclosure Agreement (this "Amendment") dated as of May 31st, 2010 (the "Amendment Date") is entered\ninto between Cogent, Inc., a Delaware corporation ("Company" or "Disclosing Party") and 3M Company, a Delaware corporation ("Interested\nParty" or "Receiving Party") (collectively the "Parties").\nWHEREAS, the Parties previously entered into a Non-Disclosure Agreement dated as of July 31, 2008 (the "Non-Disclosure Agreement");\nWHEREAS, the Parties wish to amend the Non-Disclosure Agreement in certain respects on the terms and conditions set forth herein.\nNOW THEREFORE, the Parties hereby agree as follows:\n1. Section 3.1 of the Non-Disclosure Agreement is hereby amended by replacing "one year anniversary of the Effective Date" in the second\nline of such section with "three year anniversary of the Effective Date."\n2. Section 6 of the Non-Disclosure Agreement is hereby amended by replacing "second anniversary of the Effective Date" in the second line of\nsuch section with "fourth anniversary of the Effective Date."\n3. This Amendment shall be effective for all purposes as of the Amendment Date. The terms and conditions set forth in this Amendment are in\naddition to the terms of the Non-Disclosure Agreement which, except as amended in this Amendment, shall continue to remain in full force and\neffect in accordance with its terms. Any capitalized terms not otherwise defined herein shall have the meanings given such terms in the Non-\nDisclosure Agreement.\n4. This Amendment may be executed in counterparts, each of which shall be deemed to be an original and together shall be deemed to be one\nand the same document.\nIN WITNESS WHEREOF, the Parties have caused this Amendment to be executed by their respective duly authorized representatives\neffective as of the Amendment Date.\n3M Company\nCogent, Inc.\nBy:\n/s/ David G. Fellner\nBy:\n/s/ Paul Kim\nName: David G. Fellner\nName: Paul Kim\nTitle: Manager, 3M Corporate Development\nTitle: Chief Financial Officer	EX-99.E .3 4 dex99e3.htm NON-DISCLOSURE AGREEMENT\nExhibit (e)(3)\nNON-DISCLOSURE AGREEMENT\nIn connection with a potential transaction (“Proposed Transaction”) between 3M Company (“Interested Party” or “Receiving Party”), and\nCogent, Inc., a Delaware corporation (“Company” or “Disclosing Party”), the parties wish to protect and preserve the confidential and/or\nproprietary nature of certain information and materials of the Company that may be disclosed or made available to the Interested Party or its\nRepresentatives (as defined below) in connection with certain discussions, negotiations or dealings between the parties relating to the Proposed\nTransaction.\nIn consideration of the foregoing and the rights and obligations set forth herein, both parties hereby agree as of July 31, 2008 (the “Effective\nDate”):\n1. PROPRIETARY INFORMATION AND OTHER DEFINITIONS.\n1.1 “Proprietary Information” means any and all information and material disclosed by Disclosing Party or any of its Representatives to\nReceiving Party or any of its Representatives in connection with the Proposed Transaction or in the course of the parties’ evaluation and negotiation\nof the Proposed Transaction, together with all communications, data, reports, analyses, compilations, studies, interpretations, records, notes, lists,\nfinancial statements or other materials or information prepared by Receiving Party or any of its Representatives that contain or otherwise reflect or\nare based upon, in whole or in part, any Proprietary Information of Disclosing Party or that reflect the review of, interest in, or evaluation of all or\nany portion of the Proposed Transaction or Disclosing Party’s business (collectively, “Derived Information”), whether tangible or intangible,\nfurnished or prepared in writing or in oral, graphic, electronic or any other form or manner. In addition, Proprietary Information shall include (x) the\nfact that discussions or negotiations are taking place concerning the Proposed Transaction or that Interested Party has made or may make an offer to\nacquire Company’s stock or assets or that any Proprietary Information has been shared between the parties and their respective Representatives in\nconnection therewith, (y) the proposed terms and conditions of the Proposed Transaction (including any financial terms and conditions) and the\nstatus thereof, and (z) the existence, context, and scope of this Agreement.\nProprietary Information shall not include information that: (i) is or becomes generally available to the public other than as a result of any\ndisclosure or other action or inaction by Receiving Party in breach of this Agreement (including any disclosure or other action or inaction by\nRepresentatives of Receiving Party that would constitute a breach of this Agreement if undertaken by Receiving Party itself); (ii) is or becomes\nknown or available to Receiving Party or any of its Representatives on a non-confidential basis from a source (other than Disclosing Party or any of\nits subsidiaries, affiliates or Representatives) that, to the best of the knowledge of Receiving Party, is not prohibited from disclosing such Proprietary\nInformation to Receiving Party by a contractual, legal or fiduciary obligation; or (iii) is or was independently developed by Receiving Party or any of\nits Representatives without violation of any obligation under this Agreement.\n1.2 “Representatives” means as to any person, its directors, officers, employees, agents and advisors (including, without limitation, financial\nadvisors, financing sources, attorneys, accountants and their respective Representatives).\n1.3 “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.\n2. NON-DISCLOSURE AND LIMITED USE.\n2.1 Non-Disclosure. Without the written consent of Disclosing Party and except as otherwise required by applicable law, Receiving Party shall\nkeep, and shall cause its Representatives to keep, all Proprietary Information confidential and shall not disclose or reveal, and shall cause its\nRepresentatives not to disclose or reveal, in any manner whatsoever, in whole or in part, any Proprietary Information to any person, other than to its\nRepresentatives who are actively and directly participating in its evaluation of the Proposed Transaction or who otherwise need to know the\nProprietary Information for the purpose of evaluating the Proposed Transaction and who are bound by restrictions regarding the disclosure and use of\nsuch Proprietary Information (either contractual, legal or fiduciary) owed to Company, Interested Party or any their respective Representatives that\nare comparable to and no less restrictive than those set forth in this Agreement. Each party shall inform all of its respective Representatives and shall\ncause its respective Representatives to inform their Representatives who receive Proprietary Information hereunder of the confidential nature of such\ninformation and the Proposed Transaction, as well as the terms of this Agreement. Receiving Party shall not, and shall cause its Representatives to\nnot, use any Proprietary Information for any purpose other than to evaluate the Proposed Transaction or in connection with the consummation of the\nProposed Transaction. Each party shall be responsible for any breach of the terms of this Agreement by it or its Representatives.\n2.2 Degree of Care. Receiving Party shall take the same degree of care that it uses to protect its own confidential and proprietary information\nof similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the use, disclosure, publication or\ndissemination of the Proprietary Information of Disclosing Party. Receiving Party shall not, and shall cause its Representatives to not, decompile,\ndisassemble or otherwise reverse engineer (except to the extent expressly permitted by applicable law, notwithstanding a contractual obligation to the\ncontrary) any Proprietary Information or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or\ntechniques embodied in any Proprietary Information or any portion thereof. Receiving Party shall not use Proprietary Information for any purpose or\nin any manner that would constitute a violation of any laws or regulations, including without limitation the export control laws of the United States.\n2.3 Designated Representatives. Neither Interested Party nor its Representatives shall initiate or maintain contact with any officer, director,\nstockholder, employee or agent of Company or its subsidiaries regarding the Proposed Transaction, except with the express consent of Company. All\n(i) communications regarding the Proposed Transaction, (ii) requests for additional information, (iii) requests for on-site access or management\nmeetings and (iv) discussions or questions regarding procedures, will be submitted or directed to the Representatives designated by the Company.\n2.4 Compelled Disclosure of Proprietary Information. If Receiving Party or any of its Representatives are requested pursuant to, or required\nby, applicable law or regulation (including, without limitation, any rule, regulation or policy statement of any national securities exchange, market or\nautomated quotation system on which any of Receiving Party’s securities are listed or quoted) or by legal process to disclose any Proprietary\nInformation, or any other information concerning Disclosing Party, its subsidiaries or affiliates, Receiving Party shall provide Disclosing Party with\nprompt notice of such request or requirement, in order to enable Disclosing Party (a) to seek an appropriate protective order or other remedy, (b) to\nconsult with Receiving Party with respect to Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process or (c) to\nwaive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or\nDisclosing Party waives compliance, in whole or in part, with the terms of this Agreement, Receiving Party or its Representatives, as the case may\nbe, shall use commercially reasonable efforts to disclose only that portion of the Proprietary Information which Receiving Party is advised by legal\ncounsel is legally required to be disclosed and exercise its commercially reasonable efforts to obtain reliable assurances that confidential treatment\nwill be accorded to the Proprietary Information so disclosed.\n2.5 Attorney-Client Privilege. To the extent that any Proprietary Information may include material subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the\nparties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual\nunderstanding that the disclosure of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material\nor its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege and any such Proprietary\nInformation shall remain entitled to all protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this\nAgreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\n2.6 Definitive Agreement. Until a definitive agreement regarding the Proposed Transaction has been executed by the parties hereto, neither\nparty hereto shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to the Proposed\nTransaction by virtue of this Agreement or otherwise (other than with respect to the confidentiality and other matters set forth herein). Each party\nhereto and its Representatives (i) may conduct the process that may or may not result in the Proposed Transaction in such manner as such party, in its\nsole discretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third party without notice\nto the other party) and (ii) reserves the right to change (in its sole discretion, at any time and without notice to the other party) the procedures relating\nto the parties’ consideration of the Proposed Transaction (including, without limitation, terminating all further discussions with the other party). For\npurposes of this Agreement, the term “definitive agreement” does not include an executed letter of intent or any other preliminary written agreement\nin principle.\n2.7 No Representations or Warranties Regarding Proprietary Information. Subject to the terms and conditions of a definitive agreement\nregarding the Proposed Transaction and without prejudice thereto, each party acknowledges that neither the other party nor its Representatives nor\nany of the officers, directors, employees, agents or controlling persons of such Representatives makes any express or implied representation or\nwarranty as to the completeness of the Proprietary Information or any use thereof. Each party hereby expressly disclaims all such warranties,\nincluding any implied warranties of merchantability and fitness for a particular purpose, non-infringement and accuracy, and any warranties arising\nout of course of performance, course of dealing or usage of trade. Receiving Party shall not be entitled to rely on the completeness of any Proprietary\nInformation, but shall be entitled to rely solely on such representations and warranties regarding the completeness of the Proprietary Information as\nmay be made to it in a definitive agreement relating to the Proposed Transaction, subject to the terms and conditions of any such agreement, should\nthe discussions between the parties progress to such a point.\n3. NO SOLICITATION.\n3.1 No Solicitation of Employees. Interested Party agrees that neither it nor its affiliates will at any time until the one year anniversary of the\nEffective Date, directly or indirectly, employ or solicit for employment (i) any key technical or management personnel of the Company that has first\nbeen introduced by the Company to the Interested Party in connection with the Proposed Transaction or who was otherwise substantively involved in\nthe discussions of the Proposed Transaction or (ii) any other person who is now employed as an officer of the other party or any of its affiliates;\nprovided, that the foregoing restriction shall not be deemed to prohibit Interested Party or its Representatives from making general public\nsolicitations for employment for any position or from employing any employee of the\nCompany who either responds to such a general solicitation for employment or otherwise contacts Interested Party on his or her own initiative and\nwithout solicitation by Interested Party in contravention of the above restriction. Additionally, the above restriction shall not be deemed to prohibit\nInterested Party from making offers of employment or offering retention packages to any employees of Company or any of its affiliates in\nconnection with the Proposed Transaction, provided that such offers have been disclosed to the Board of Directors of the Company.\n4. SECURITIES ISSUES.\n4.1 No Public Disclosure Required. Each party expressly confirms and agrees that, as of the date hereof, it is not required to make any public\ndisclosure with respect to (a) the Proposed Transaction (or the terms or conditions or any other facts relating thereto), (b) any item of Proprietary\nInformation (or the fact that Proprietary Information has been made available to such party), or (c) any discussions or negotiations taking place\nbetween the parties with respect to the Proposed Transaction, whether pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”), the rules and regulations promulgated thereunder, or similar requirements related to general disclosure. If, after the date of this Agreement,\neither party determines that any such disclosure is required, no such disclosure shall be made unless and until such party consults with the other party\nregarding the necessity and form of any such disclosure, and provides the other party a reasonable opportunity to review the proposed disclosure and\ncomment thereon.\n4.2 Restrictions on Sales of Securities. Each party is aware, and will advise its Representatives who are informed of the matters that are the\nsubject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who\nhas received material, non-public information from the issuer of such securities and on the communication of such information to any other person\nwhen it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information. However, this\nwill not prevent Receiving Party from purchasing stock through its benefit plans in the ordinary course of business.\n5. OWNERSHIP.\nAll Proprietary Information (including, without limitation, all copies, extracts and portions thereof) is and shall remain the sole property of\nDisclosing Party, provided, that all Derived Information shall be the sole property of Receiving Party. Receiving Party does not acquire (by license or\notherwise, whether express or implied) any intellectual property rights or other rights under this Agreement or any disclosure hereunder, except the\nlimited right to use such Proprietary Information in accordance with the express provisions of this Agreement. All rights relating to the Proprietary\nInformation that are not expressly granted hereunder to Interested Party are reserved and retained by Disclosing Party.\n6. TERM.\nExcept as otherwise provided herein, the obligations of this Agreement, including the restrictions on disclosure and use, shall terminate on the\nsecond anniversary of the Effective Date; provided that Sections 2.5, 2.6, and 2.7 and Articles 4, 5, 6, 7, 8 and 9 shall survive any termination of this\nAgreement.\n7. REMEDIES.\nReceiving Party agrees that, due to the unique nature of the Proprietary Information, the unauthorized disclosure or use of the Proprietary\nInformation may cause injury to Disclosing Party, the extent of which will be difficult to ascertain and for which there may be no adequate remedy at\nlaw. Accordingly, Receiving Party agrees that Disclosing Company, in addition to any other available\nremedies, may have the right to seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Agreement\nas ordered by the court. Receiving Party shall notify Disclosing Party immediately if Receiving Party has reason to believe that any person who has\nhad access to the Proprietary Information (including Receiving Party or any of its Representatives) has violated or intends to violate the terms of this\nAgreement or otherwise disclose any Proprietary Information in violation of the terms hereof. Any and all remedies herein expressly conferred upon\na party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the\nexercise by a party of any one remedy will not preclude the exercise of any other remedy.\n8. RETURN OF MATERIALS.\nIf either party hereto shall determine that it does not wish to proceed with the Proposed Transaction, such party shall promptly advise the other\nparty of that decision. In that case, or if the Proposed Transaction otherwise is not consummated for any reason, Receiving Party shall, upon\nDisclosing Party’s written request, promptly deliver to Disclosing Party all Proprietary Information, and, at Disclosing Party’s sole election, return or\ndestroy (provided that any such destruction shall be certified by a duly authorized Representative of Receiving Party) all copies, reproductions,\nsummaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer\nfiles) in Receiving Party’s or any of its Representatives’ possession; provided, that if a legal proceeding has been instituted to seek disclosure of the\nProprietary Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been\nrendered. However, Receiving Party may retain in the office of its legal counsel, one copy of Proprietary Information for record purposes only.\nNotwithstanding the return or destruction of any Proprietary Information, or documents or material containing or reflecting any Proprietary\nInformation, the parties will continue to be bound by their obligations of confidentiality and other obligations hereunder for the term of this\nAgreement (or such other term as may be applicable to the specific obligation), except as otherwise specifically provided herein.\n9. MISCELLANEOUS.\n9.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the confidentiality of the Proprietary\nInformation in connection with the Proposed Transaction and related matters and supersedes all prior or contemporaneous representations,\ndiscussions, proposals, negotiations, conditions, communications and agreements, whether oral or written, between the parties relating to the same\nand all past courses of dealing or industry custom.\n9.2 Beneficiaries. This Agreement shall inure to the benefit of and be binding upon Interested Party and Company and their respective\nsuccessors and permitted assigns.\n9.3 Amendments and Waivers. No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing\nand signed by duly authorized signatories of both parties. The waiver by either party of a breach of or a default under any provision of this\nAgreement shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor\nshall any delay or omission on the part of either party to exercise or avail itself of any right, power, privilege or remedy that it has or may have\nhereunder operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other further exercise of any such right, power,\nprivilege or remedy hereunder.\n9.4 Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota without regard\nto conflicts of laws principles.\n9.5 Jurisdiction; Waiver of Jury Trial. The parties hereto agree that any and all actions or proceedings seeking to enforce any provision of,\nor based on any right arising out of, this Agreement shall be brought in the courts of the State of California, County of Los Angeles, including\nFederal Courts located therein, should Federal jurisdiction requirements exist. Each of the parties consents to the jurisdiction of such courts (and of\nthe appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding\nreferred to in the preceding sentence may be served on any party anywhere in the world. The parties hereto specifically waive any right to a jury trial\nwith respect to any matter arising under this Agreement.\n9.6 Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, non-appealable\norder that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the reasonable costs and expenses\n(including reasonable legal fees and expenses) such non-breaching party has incurred in connection with the enforcement of this Agreement,\nincluding any appeal therefrom.\n9.7 Severability. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to\nbe invalid or unenforceable, the remaining portions hereof shall remain in full force and effect and such provision shall be enforced to the maximum\nextent possible so as to effect the intent of the parties, and shall in no way be affected, impaired or invalidated.\n9.8 Notices. Any notice or other communication required or permitted to be delivered under this Agreement shall be in writing and shall be\ndeemed effectively given: (i) upon personal delivery to the party to be notified; (ii) when sent by confirmed telex or facsimile if sent during normal\nbusiness hours of the recipient, if not, then on the next business day; (iii) three (3) days after having been sent by registered or certified mail, return\nreceipt requested, postage prepaid; or (iv) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with\nwritten verification of receipt, to the address or facsimile number set forth beneath the name of each party below (or to such other address or\nfacsimile number as such party may designate by five (5) days advance written notice to the other party hereto).\n9.9 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this\nAgreement and all of which, when taken together, will be deemed to constitute one and the same instrument.\n[SIGNATURES FOLLOW ON THE NEXT PAGE]\nIN WITNESS WHEREOF, the parties have duly authorized and caused this Non-Disclosure Agreement to be executed as follows:\nCOMPANY\nCogent, Inc.\nBy: /s/ Paul Kim\n(signature)\nName: Paul Kim\n(print)\nTitle: Chief Financial Officer\nINTERESTED PARTY\n3M Company\nBy: /s/ David G. Fellner\n(signature)\nName: David G. Fellner\n(print)\nTitle: Manager, Corporate Development\nAMENDMENT NO. 1 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 1 to Non-Disclosure Agreement (this “Amendment”) dated as of May 31st, 2010 (the “Amendment Date”), is entered\ninto between Cogent, Inc., a Delaware corporation (“Company” or “Disclosing Party”) and 3M Company, a Delaware corporation (“Interested\nParty” or “Receiving Party”) (collectively the “Parties”).\nWHEREAS, the Parties previously entered into a Non-Disclosure Agreement dated as of July 31, 2008 (the “Non-Disclosure Agreement”);\nWHEREAS, the Parties wish to amend the Non-Disclosure Agreement in certain respects on the terms and conditions set forth herein.\nNOW THEREFORE, the Parties hereby agree as follows:\n1. Section 3.1 of the Non-Disclosure Agreement is hereby amended by replacing “one year anniversary of the Effective Date” in the second\nline of such section with “three year anniversary of the Effective Date.”\n2. Section 6 of the Non-Disclosure Agreement is hereby amended by replacing “second anniversary of the Effective Date” in the second line of\nsuch section with “fourth anniversary of the Effective Date.”\n3. This Amendment shall be effective for all purposes as of the Amendment Date. The terms and conditions set forth in this Amendment are in\naddition to the terms of the Non-Disclosure Agreement which, except as amended in this Amendment, shall continue to remain in full force and\neffect in accordance with its terms. Any capitalized terms not otherwise defined herein shall have the meanings given such terms in the Non-\nDisclosure Agreement.\n4. This Amendment may be executed in counterparts, each of which shall be deemed to be an original and together shall be deemed to be one\nand the same document.\nIN WITNESS WHEREOF, the Parties have caused this Amendment to be executed by their respective duly authorized representatives\neffective as of the Amendment Date.\n3M Company\nCogent, Inc.\nBy: /s/ David G. Fellner\nBy: /s/ Paul Kim\nName: David G. Fellner\nName: Paul Kim\nTitle: Manager, 3M Corporate Development\nTitle: Chief Financial Officer
+43568120ee0987b6dc67d4cf0f5b4802.pdf	effective_date jurisdiction party term	EXHIBIT N\nFORM OF NON-DISCLOSURE AGREEMENT\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (this "Agreement") is entered into as of ____________________ (the "Effective Date"), and is by and\nbetween Penumbra, Inc., a Delaware corporation, having an address at One Penumbra Place, Alameda, CA 94502 ("Penumbra"), and _________________, a\n____________\ncorporation, having an address at ________________________ ("Recipient"). Affiliates of a party are included in the definition of a party.\nWHEREAS, Penumbra desires to disclose, and Recipient desires to receive, Penumbra Confidential Information (as defined below); and\nWHEREAS, Recipient acknowledges that the Penumbra Confidential Information has been acquired at great expense and investment and is a valuable\nbusiness asset of Penumbra; and\nWHEREAS, Recipient recognizes that the unauthorized disclosure of Penumbra Confidential Information will cause substantial injury to Penumbra;\nNOW, THEREFORE, in consideration of the mutual promises and other good and valuable consideration, the receipt and adequacy of which are\nhereby acknowledged, the parties agree as follows:\n1. Confidentiality Obligation. Recipient shall:\n(a)\nreceive, hold and maintain the Penumbra Confidential Information in strict confidence;\n(b)\ntake the same degree of care that it uses to protect its own confidential and/or proprietary information and materials of similar nature\nand importance (but in no event less than reasonable care) to protect confidentiality and to avoid unauthorized use, disclosure,\npublication or dissemination of the Penumbra Confidential Information;\n(c)\nuse the Penumbra Confidential Information solely for the purposes of evaluating whether to enter into a subsequent business\nrelationship or performing its obligations under an existing or future business relationship, and shall not use or exploit the Penumbra\nConfidential Information for its own benefit or the benefit of a third party; and\n(d)\nnot disclose, distribute, reproduce, reverse engineer, transfer or transmit, directly or indirectly, the Penumbra Confidential\nInformation without the prior written consent of Penumbra.\n2. Penumbra Confidential Information. Penumbra Confidential Information means, without limitation, any information disclosed by Penumbra to\nRecipient or obtained by Recipient through inspection or observation of Penumbra's property or facilities. Such information may be provided in writing or\nelectronically, orally or visually, and will be marked as "confidential" or "proprietary" or, if disclosed orally or visually, will be identified as confidential and/or\nproprietary at the time of such disclosure. Additionally, where the confidential and/or proprietary nature of the information disclosed is, or reasonably should be,\napparent based on the type of information and/or the context in which it is disclosed, such information will be considered Penumbra Confidential Information.\nPenumbra Confidential Information includes but is not limited to drawings, designs, notes, reports, presentations, data, and know-how that relates to Penumbra's\nbusiness, including but not limited to, pricing strategy and financial data, plans, models and forecasts; products and/or services; research and development\nprojects and activities; clinical trials; manufacturing techniques, processes and operations; policies; vendors; customers; sales; marketing; software and\nhardware; technology; and the like. Additionally, Penumbra Confidential Information includes any reports or documents created by Recipient that include,\nsummarize, refer to or use the Penumbra Confidential Information.\n3. Exclusions. Penumbra Confidential Information shall not include information that:\n-108-\n(a)\nwas in the lawful possession of Recipient prior to disclosure by Penumbra, as demonstrated by competent evidence;\n(b)\nis, at the time of disclosure, already available in the public domain or becomes publicly available through no act or omission of\nRecipient in breach of this Agreement;\n(c)\nis disclosed to Recipient by a third party not under an obligation of confidentiality to Penumbra; or\n(d)\nis or has been independently developed by Recipient without breach of this Agreement, as demonstrated by competent evidence.\nRecipient shall bear the burden of establishing any of the foregoing exclusions.\n4. Permitted Access to Penumbra Confidential Information. Penumbra Confidential Information shall only be disclosed to persons who are under\na duty of confidentiality to Recipient at least as stringent as the duties set forth herein. Recipient shall advise its employees who may have access to the\nPenumbra Confidential Information of its confidential nature and the obligations set forth in this Agreement. In the event of an inadvertent disclosure of the\nPenumbra Confidential Information, Recipient shall immediately notify Penumbra and shall take all measures practicable to limit and/or prevent further\ndisclosure.\n5. Required Disclosure. Notwithstanding any provision herein to the contrary, in the event that Recipient is required by judicial, administrative or\ngovernmental order to disclose the Penumbra Confidential Information or any portion thereof, Recipient may disclose the Penumbra Confidential Information\nwithout liability hereunder; provided, however, that Recipient shall first notify Penumbra of such requirement in advance of such planned disclosure so that\nPenumbra has an opportunity to take any available lawful actions to prevent or minimize the extent of disclosure of the Penumbra Confidential Information,\nincluding but not limited to seeking a protective order.\n6. Ownership; No License. The Penumbra Confidential Information, including any modification or enhancement thereto or any information based\non or derived therefrom, is and shall remain the property of Penumbra. Nothing in this Agreement shall be construed as creating an express or implied license or\nright to the Penumbra Confidential Information or to any patent, trademark, copyright or other intellectual property of Penumbra.\n7. No Warranty. Except as may otherwise be agreed to in writing by the parties, no warranties or representations of any kind, whether express or\nimplied, including but not limited to accuracy or completeness, are given by Penumbra with respect to the Penumbra Confidential Information or use thereof.\nThe Penumbra Confidential Information is provided on an "AS IS" basis. Penumbra shall not be liable for any damages arising out of the use of the Penumbra\nConfidential Information by Recipient.\n8. Term. The term of this Agreement shall be two (2) years from the Effective Date, unless terminated earlier in writing by either party; provided,\nhowever, in the event the parties enter or have entered, into a business relationship or other arrangement, the term of this Agreement shall be for two (2) years\nfrom the date of termination or expiration of such business relationship or other arrangement. Notwithstanding the termination or expiration of this Agreement,\nSections 1, 2, 3, 4, 5, 6, 10 and 13 remain in effect indefinitely or until one of the exceptions set forth in Section 3 applies.\n9. Return of Penumbra Confidential Information. Upon termination or expiration of this Agreement or written request of Penumbra, Recipient\nshall return or destroy, at the option of Penumbra, all Penumbra Confidential Information, including without limitation any written or electronic copies,\nsummaries and other documents containing the Penumbra Confidential Information; provided, however, that Recipient may retain one (1) copy of such\nPenumbra Confidential Information solely for archival purposes to ensure compliance with this Agreement. Notwithstanding the foregoing, Recipient may retain\nConfidential Information to the extent required by law and such Penumbra Confidential Information shall be held on a confidential basis. In addition, Recipient\nmay retain electronic files containing the Penumbra Confidential Information created pursuant to automatic archiving and backup procedures or maintain\npursuant to internal or regulatory document retention policies so long as such electronic files are kept confidential in accordance with the terms of this\nAgreement.\n10. Remedies. Recipient hereby acknowledges and agrees that any violation or threat of violation of this Agreement will result in irrevocable harm to\nPenumbra for which damages would be an inadequate remedy and that Penumbra shall be entitled to seek injunctive or other equitable relief. The foregoing\nremedy of equitable relief shall not be the sole or exclusive remedy available to Penumbra.\n-109-\n11. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, successors, and assignees.\nExcept for an assignment to a successor-in-interest that acquires a party by merger or acquisition, this Agreement shall not be assigned by either party without\nthe prior written consent of the other party.\n12. Notices. Any notices required hereunder shall be in writing and sent to a party at its address set forth above, or to such other address as may\nsubsequently be designated in writing. Such notice must be delivered in person, sent by first class mail or overnight courier, or transmitted by facsimile or\nthrough email.\n13. Governing Law. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of California, without\napplication of conflicts of law, and both parties consent to the jurisdiction of the federal and state courts located within the State of California.\n14. Entire Agreement. This Agreement sets forth the entire understanding between the parties as to the subject matter herein, and supersedes all\nprevious or contemporaneous understandings, commitments or agreements, whether written or oral, regarding confidentiality. If the parties mutually agree to\nenter into or continue a business relationship or other arrangement and do not enter into a new confidentiality agreement, the terms and conditions set forth\nherein shall apply to such business relationship or other arrangement, unless otherwise set forth in writing by the parties. Any amendment or modification to this\nAgreement must be in writing and signed by authorized representatives of both parties. Nothing in this Agreement shall be construed to create an obligation of\nthe parties to negotiate or enter into any subsequent agreement.\n15. Waiver; Severability. Failure of a party to insist upon the performance of the other party of any provision of this Agreement shall not be treated\nas a modification of this Agreement, nor shall such failure or election be treated as a waiver of the right of such party at any later time to insist upon strict\nperformance of such provision. If any provision of this Agreement is declared void or unenforceable, such provision shall be severed from this Agreement,\nwhich shall otherwise remain in full force and effect.\n16. Counterparts. This Agreement may be signed in any number of counterparts with the same effect as if the signature on each counterpart were on\nthe same instrument. All signatures may be transmitted by facsimile or a PDF attachment to an email, and such facsimile or attachment will, for all purposes, be\ndeemed to be an original signature.\n-110-\nIN WITNESS WHEREOF, the Parties hereto have executed this Agreement by their duly authorized representatives as of the Effective Date set forth\nabove.\nPenumbra, Inc.\nSignature:\nPrinted Name: Robert D. Evans\nTitle: Executive Vice President and General Counsel\nDate: September _____, 2015\nRecipient: Xxxxxx\nSignature:\nPrinted Name:\nTitle:\nDate:\n-111 -	EXHIBIT N\nFORM OF NON-DISCLOSURE AGREEMENT\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (this "Agreement") is entered into as of (the "Effective Date"), and is by and\nbetween Penumbra, Inc., a Delaware corporation, having an address at One Penumbra Place, Alameda, CA 94502 ("Penumbra"), and ,a\ncorporation, having an address at ("Recipient"). Affiliates of a party are included in the definition of a party.\nWHEREAS, Penumbra desires to disclose, and Recipient desires to receive, Penumbra Confidential Information (as defined below); and\nWHEREAS, Recipient acknowledges that the Penumbra Confidential Information has been acquired at great expense and investment and is a valuable\nbusiness asset of Penumbra; and\nWHEREAS, Recipient recognizes that the unauthorized disclosure of Penumbra Confidential Information will cause substantial injury to Penumbra;\nNOW, THEREFORE, in consideration of the mutual promises and other good and valuable consideration, the receipt and adequacy of which are\nhereby acknowledged, the parties agree as follows:\n1. Confidentiality Obligation. Recipient shall:\n(a) receive, hold and maintain the Penumbra Confidential Information in strict confidence;\n(b) take the same degree of care that it uses to protect its own confidential and/or proprietary information and materials of similar nature\nand importance (but in no event less than reasonable care) to protect confidentiality and to avoid unauthorized use, disclosure,\npublication or dissemination of the Penumbra Confidential Information;\n(o) use the Penumbra Confidential Information solely for the purposes of evaluating whether to enter into a subsequent business\nrelationship or performing its obligations under an existing or future business relationship, and shall not use or exploit the Penumbra\nConfidential Information for its own benefit or the benefit of a third party; and\n(d) not disclose, distribute, reproduce, reverse engineer, transfer or transmit, directly or indirectly, the Penumbra Confidential\nInformation without the prior written consent of Penumbra.\n2. Penumbra Confidential Information. Penumbra Confidential Information means, without limitation, any information disclosed by Penumbra to\nRecipient or obtained by Recipient through inspection or observation of Penumbra's property or facilities. Such information may be provided in writing or\nelectronically, orally or visually, and will be marked as "confidential" or "proprietary" or, if disclosed orally or visually, will be identified as confidential and/or\nproprietary at the time of such disclosure. Additionally, where the confidential and/or proprietary nature of the information disclosed is, or reasonably should be,\napparent based on the type of information and/or the context in which it is disclosed, such information will be considered Penumbra Confidential Information.\nPenumbra Confidential Information includes but is not limited to drawings, designs, notes, reports, presentations, data, and know-how that relates to Penumbra's\nbusiness, including but not limited to, pricing strategy and financial data, plans, models and forecasts; products and/or services; research and development\nprojects and activities; clinical trials; manufacturing techniques, processes and operations; policies; vendors; customers; sales; marketing; software and\nhardware; technology; and the like. Additionally, Penumbra Confidential Information includes any reports or documents created by Recipient that include,\nsummarize, refer to or use the Penumbra Confidential Information.\n3. Exclusions. Penumbra Confidential Information shall not include information that:\n-108-\n(a) was in the lawful possession of Recipient prior to disclosure by Penumbra, as demonstrated by competent evidence;\n(b) is, at the time of disclosure, already available in the public domain or becomes publicly available through no act or omission of\nRecipient in breach of this Agreement;\n(o) is disclosed to Recipient by a third party not under an obligation of confidentiality to Penumbra; or\n(d) is or has been independently developed by Recipient without breach of this Agreement, as demonstrated by competent evidence.\nRecipient shall bear the burden of establishing any of the foregoing exclusions.\n4. Permitted Access to Penumbra Confidential Information. Penumbra Confidential Information shall only be disclosed to persons who are under\na duty of confidentiality to Recipient at least as stringent as the duties set forth herein. Recipient shall advise its employees who may have access to the\nPenumbra Confidential Information of its confidential nature and the obligations set forth in this Agreement. In the event of an inadvertent disclosure of the\nPenumbra Confidential Information, Recipient shall immediately notify Penumbra and shall take all measures practicable to limit and/or prevent further\ndisclosure.\n5. Required Disclosure. Notwithstanding any provision herein to the contrary, in the event that Recipient is required by judicial, administrative or\ngovernmental order to disclose the Penumbra Confidential Information or any portion thereof, Recipient may disclose the Penumbra Confidential Information\nwithout liability hereunder; provided, however, that Recipient shall first notify Penumbra of such requirement in advance of such planned disclosure so that\nPenumbra has an opportunity to take any available lawful actions to prevent or minimize the extent of disclosure of the Penumbra Confidential Information,\nincluding but not limited to seeking a protective order.\n6. Ownership; No License. The Penumbra Confidential Information, including any modification or enhancement thereto or any information based\non or derived therefrom, is and shall remain the property of Penumbra. Nothing in this Agreement shall be construed as creating an express or implied license or\nright to the Penumbra Confidential Information or to any patent, trademark, copyright or other intellectual property of Penumbra.\n7. No Warranty. Except as may otherwise be agreed to in writing by the parties, no warranties or representations of any kind, whether express or\nimplied, including but not limited to accuracy or completeness, are given by Penumbra with respect to the Penumbra Confidential Information or use thereof.\nThe Penumbra Confidential Information is provided on an "AS IS" basis. Penumbra shall not be liable for any damages arising out of the use of the Penumbra\nConfidential Information by Recipient.\n8. Term. The term of this Agreement shall be two (2) years from the Effective Date, unless terminated earlier in writing by either party; provided,\nhowever, in the event the parties enter or have entered, into a business relationship or other arrangement, the term of this Agreement shall be for two (2) years\nfrom the date of termination or expiration of such business relationship or other arrangement. Notwithstanding the termination or expiration of this Agreement,\nSections 1, 2, 3, 4, 5, 6, 10 and 13 remain in effect indefinitely or until one of the exceptions set forth in Section 3 applies.\n9. Return of Penumbra Confidential Information. Upon termination or expiration of this Agreement or written request of Penumbra, Recipient\nshall return or destroy, at the option of Penumbra, all Penumbra Confidential Information, including without limitation any written or electronic copies,\nsummaries and other documents containing the Penumbra Confidential Information; provided, however, that Recipient may retain one (1) copy of such\nPenumbra Confidential Information solely for archival purposes to ensure compliance with this Agreement. Notwithstanding the foregoing, Recipient may retain\nConfidential Information to the extent required by law and such Penumbra Confidential Information shall be held on a confidential basis. In addition, Recipient\nmay retain electronic files containing the Penumbra Confidential Information created pursuant to automatic archiving and backup procedures or maintain\npursuant to internal or regulatory document retention policies so long as such electronic files are kept confidential in accordance with the terms of this\nAgreement.\n10. Remedies. Recipient hereby acknowledges and agrees that any violation or threat of violation of this Agreement will result in irrevocable harm to\nPenumbra for which damages would be an inadequate remedy and that Penumbra shall be entitled to seek injunctive or other equitable relief. The foregoing\nremedy of equitable relief shall not be the sole or exclusive remedy available to Penumbra.\n-109-\n11. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, successors, and assignees.\nExcept for an assignment to a successor-in-interest that acquires a party by merger or acquisition, this Agreement shall not be assigned by either party without\nthe prior written consent of the other party.\n12. Notices. Any notices required hereunder shall be in writing and sent to a party at its address set forth above, or to such other address as may\nsubsequently be designated in writing. Such notice must be delivered in person, sent by first class mail or overnight courier, or transmitted by facsimile or\nthrough email.\n13. Governing Law. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of California, without\napplication of conflicts of law, and both parties consent to the jurisdiction of the federal and state courts located within the State of California.\n14. Entire Agreement. This Agreement sets forth the entire understanding between the parties as to the subject matter herein, and supersedes all\nprevious or contemporaneous understandings, commitments or agreements, whether written or oral, regarding confidentiality. If the parties mutually agree to\nenter into or continue a business relationship or other arrangement and do not enter into a new confidentiality agreement, the terms and conditions set forth\nherein shall apply to such business relationship or other arrangement, unless otherwise set forth in writing by the parties. Any amendment or modification to this\nAgreement must be in writing and signed by authorized representatives of both parties. Nothing in this Agreement shall be construed to create an obligation of\nthe parties to negotiate or enter into any subsequent agreement.\n15. Waiver; Severability. Failure of a party to insist upon the performance of the other party of any provision of this Agreement shall not be treated\nas a modification of this Agreement, nor shall such failure or election be treated as a waiver of the right of such party at any later time to insist upon strict\nperformance of such provision. If any provision of this Agreement is declared void or unenforceable, such provision shall be severed from this Agreement,\nwhich shall otherwise remain in full force and effect.\n16. Counterparts. This Agreement may be signed in any number of counterparts with the same effect as if the signature on each counterpart were on\nthe same instrument. All signatures may be transmitted by facsimile or a PDF attachment to an email, and such facsimile or attachment will, for all purposes, be\ndeemed to be an original signature.\n-110-\nIN WITNESS WHEREQOF, the Parties hereto have executed this Agreement by their duly authorized representatives as of the Effective Date set forth\nabove.\nPenumbra, Inc. Recipient: Xxxxxx\nSignature: Signature:\nPrinted Name: Robert D. Evans Printed Name:\nTitle: Executive Vice President and General Counsel Title:\nDate: September , 2015 Date:\n-111-	EXHIBIT N\nFORM OF NON-DISCLOSURE AGREEMENT\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (this "Agreement") is entered into as of\n(the "Effective Date"), and is by and\nbetween Penumbra, Inc., a Delaware corporation, having an address at One Penumbra Place, Alameda, CA 94502 ("Penumbra"), and\na\ncorporation, having an address at ("Recipient"). Affiliates of a party are included in the definition of a party.\nWHEREAS, Penumbra desires to disclose, and Recipient desires to receive, Penumbra Confidential Information (as defined below); and\nWHEREAS, Recipient acknowledges that the Penumbra Confidential Information has been acquired at great expense and investment and is a valuable\nbusiness asset of Penumbra; and\nWHEREAS, Recipient recognizes that the unauthorized disclosure of Penumbra Confidentia Information will cause substantial injury to Penumbra;\nNOW, THEREFORE, in consideration of the mutual promises and other good and valuable consideration, the receipt and adequacy of which are\nhereby acknowledged, the parties agree as follows:\n1. Confidentiality Obligation. Recipient shall:\n(a)\nreceive, hold and maintain the Penumbra Confidential Information in strict confidence;\n(b)\ntake the same degree of care that it uses to protect its own confidential and/or proprietary information and materials of similar nature\nand importance (but in no event less than reasonable care) to protect confidentiality and to avoid unauthorized use, disclosure,\npublication or dissemination of the Penumbra Confidential Information;\n(c)\nuse the Penumbra Confidential Information solely for the purposes of evaluating whether to enter into a subsequent business\nrelationship or performing its obligations under an existing or future business relationship, and shall not use or exploit the Penumbra\nConfidentia Information for its own benefit or the benefit of a third party; and\n(d)\nnot disclose, distribute, reproduce, reverse engineer, transfer or transmit, directly or indirectly, the Penumbra Confidential\nInformation without the prior written consent of Penumbra.\n2. Penumbra Confidential Information Penumbra Confidential Information means, without limitation, any information disclosed by Penumbra to\nRecipient or obtained by Recipient through inspection or observation of Penumbra's property or facilities. Such information may be provided in writing or\nelectronically, orally or visually, and will be marked as "confidential" or "proprietary" or, if disclosed orally or visually, will be identified as confidential and/or\nproprietary at the time of such disclosure. Additionally, where the confidential and/or proprietary nature of the information disclosed is, or reasonably should be,\napparent based on the type of information and/or the context in which it is disclosed, such information will be considered Penumbra Confidential Information.\nPenumbra Confidential Information includes but is not limited to drawings, designs, notes, reports, presentations, data, and know-how that relates to Penumbra's\nbusiness, including but not limited to, pricing strategy and financial data, plans, models and forecasts; products and/or services; research and development\nprojects and activities; clinical trials; manufacturing techniques, processes and operations; policies; vendors; customers; sales; marketing; software and\nhardware; technology; and the like. Additionally, Penumbra Confidential Information includes any reports or documents created by Recipient that include\nsummarize, refer to or use the Penumbra Confidential Information.\n3. Exclusions. Penumbra Confidential Information shall not include information that:\n-108-\n(a)\nwas in the lawful possession of Recipient prior to disclosure by Penumbra, as demonstrated by competent evidence;\n(b)\nis, at the time of disclosure, already available in the public domain or becomes publicly available through no act or omission of\nRecipient in breach of this Agreement;\n(c)\nis disclosed to Recipient by a third party not under an obligation of confidentiality to Penumbra; or\n(d)\nis or has been independently developed by Recipient without breach of this Agreement, as demonstrated by competent evidence.\nRecipient shall bear the burden of establishing any of the foregoing exclusions.\n4. Permitted Access to Penumbra Confidential Information. Penumbra Confidential Information shall only be disclosed to persons who are under\na duty of confidentiality to Recipient at least as stringent as the duties set forth herein. Recipient shall advise its employees who may have access to the\nPenumbra Confidential Information of its confidential nature and the obligations set forth in this Agreement. In the event of an inadvertent disclosure of the\nPenumbra Confidential Information, Recipient shall immediately notify Penumbra and shall take all measures practicable to limit and/or prevent further\ndisclosure.\n5. Required Disclosure. Notwithstanding any provision herein to the contrary, in the event that Recipient is required by judicial, administrative or\ngovernmental order to disclose the Penumbra Confidential Information or any portion thereof, Recipient may disclose the Penumbra Confidential Information\nwithout liability hereunder provided, however, that Recipient shall first notify Penumbra of such requirement in advance of such planned disclosure so that\nPenumbra has an opportunity to take any available lawful actions to prevent or minimize the extent of disclosure of the Penumbra Confidential Information,\nincluding but not limited to seeking a protective order.\n6. Ownership; No License. The Penumbra Confidential Information, including any modification or enhancement thereto or any information based\non or derived therefrom, is and shall remain the property of Penumbra. Nothing in this Agreement shall be construed as creating an express or implied license or\nright to the Penumbra Confidential Information or to any patent, trademark, copyright or other intellectual property of Penumbra.\n7. No Warranty. Except as may otherwise be agreed to in writing by the parties, no warranties or representations of any kind, whether express or\nimplied, including but not limited to accuracy or completeness, are given by Penumbra with respect to the Penumbra Confidential Information or use thereof.\nThe Penumbra Confidential Information is provided on an "AS IS" basis. Penumbra shall not be liable for any damages arising out of the use of the Penumbra\nConfidential Information by Recipient.\n8.\nTerm. The term of this Agreement shall be two (2) years from the Effective Date, unless terminated earlier in writing by either party; provided,\nhowever, in the event the parties enter or have entered, into a business relationship or other arrangement, the term of this Agreement shall be for two (2) years\nfrom the date of termination or expiration of such business relationship or other arrangement. Notwithstanding the termination or expiration of this Agreement,\nSections 1, 2, 3, 4, 5, 6, 10 and 13 remain in effect indefinitely or until one of the exceptions set forth in Section 3 applies.\n9. Return of Penumbra Confidential Information. Upon termination or expiration of this Agreement or written request of Penumbra, Recipient\nshal return or destroy, at the option of Penumbra, all Penumbra Confidential Information, including without limitation any written or electronic copies,\nsummaries and other documents containing the Penumbra Confidential Information; provided, however, that Recipient may retain one (1) copy of such\nPenumbra Confidential Information solely for archival purposes to ensure compliance with this Agreement. Notwithstanding the foregoing, Recipient may retain\nConfidential Information to the extent required by law and such Penumbra Confidential Information shall be held on a confidential basis. In addition, Recipient\nmay retain electronic files containing the Penumbra Confidential Information created pursuant to automatic archiving and backup procedures or maintain\npursuant to internal or regulatory document retention policies so long as such electronic files are kept confidential in accordance with the terms of this\nAgreement.\n10. Remedies. Recipient hereby acknowledges and agrees that any violation or threat of violation of this Agreement will result in irrevocable harm to\nPenumbra for which damages would be an inadequate remedy and that Penumbra shall be entitled to seek injunctive or other equitable relief. The foregoing\nremedy of equitable relief shall not be the sole or exclusive remedy available to Penumbra.\n-109-\n11. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, successors, and assignees.\nExcept for an assignment to a successor-in-interest that acquires a party by merger or acquisition, this Agreement shall not be assigned by either party without\nthe prior written consent of the other party.\n12. Notices. Any notices required hereunder shall be in writing and sent to a party at its address set forth above, or to such other address as may\nsubsequently be designated in writing. Such notice must be delivered in person, sent by first class mail or overnight courier, or transmitted by facsimile or\nthrough email.\n13. Governing Law. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of California, without\napplication of conflicts of law, and both parties consent to the jurisdiction of the federal and state courts located within the State of California.\n14.\nEntire Agreement. This Agreement sets forth the entire understanding between the parties as to the subject matter herein, and supersedes all\nprevious or contemporaneous understandings, commitments or agreements, whether written or oral, regarding confidentiality. If the parties mutually agree to\nenter\ninto or continue a business relationship or other arrangement and do not enter into a new confidentiality agreement, the terms and conditions set forth\nherein shall apply to such business relationship or other arrangement, unless otherwise set forth in writing by the parties. Any amendment or modification to this\nAgreement must be in writing and signed by authorized representatives of both parties. Nothing in this Agreement shall be construed to create an obligation of\nthe parties to negotiate or enter into any subsequent agreement.\n15.\nWaiver; Severability. Failure of a party to insist upon the performance of the other party of any provision of this Agreement shall not be treated\nas a modification of this Agreement, nor shall such failure or election be treated as a waiver of the right of such party at any later time to insist upon strict\nperformance of such provision. If any provision of this Agreement is declared void or unenforceable, such provision shall be severed from this Agreement,\nwhich shall otherwise remain in full force and effect.\n16. Counterparts. This Agreement may be signed in any number of counterparts with the same effect as if the signature on each counterpart were\non\nthe same instrument. All signatures may be transmitted by facsimile or a PDF attachment to an email, and such facsimile or attachment will, for all purposes, be\ndeemed to be an original signature.\n-110-\nIN WITNESS WHEREOF, the Parties hereto have executed this Agreement by their duly authorized representatives as of the Effective Date set forth\nabove.\nPenumbra, Inc.\nRecipient: Xxxxxx\nSignature:\nSignature:\nPrinted Name: Robert D. Evans\nPrinted Name:\nTitle: Executive Vice President and General Counsel\nTitle:\nDate: September\n> 2015\nDate:\n-111-	EXHIBIT N\nFORM OF NON-DISCLOSURE AGREEMENT\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (this "Agreement") is entered into as of ____________________ (the "Effective Date"), and is by and\nbetween Penumbra, Inc., a Delaware corporation, having an address at One Penumbra Place, Alameda, CA 94502 ("Penumbra"), and _________________, a\n____________\ncorporation, having an address at ________________________ ("Recipient"). Affiliates of a party are included in the definition of a party.\nWHEREAS, Penumbra desires to disclose, and Recipient desires to receive, Penumbra Confidential Information (as defined below); and\nWHEREAS, Recipient acknowledges that the Penumbra Confidential Information has been acquired at great expense and investment and is a valuable\nbusiness asset of Penumbra; and\nWHEREAS, Recipient recognizes that the unauthorized disclosure of Penumbra Confidential Information will cause substantial injury to Penumbra;\nNOW, THEREFORE, in consideration of the mutual promises and other good and valuable consideration, the receipt and adequacy of which are\nhereby acknowledged, the parties agree as follows:\n1. Confidentiality Obligation. Recipient shall:\n(a)\nreceive, hold and maintain the Penumbra Confidential Information in strict confidence;\n(b)\ntake the same degree of care that it uses to protect its own confidential and/or proprietary information and materials of similar nature\nand importance (but in no event less than reasonable care) to protect confidentiality and to avoid unauthorized use, disclosure,\npublication or dissemination of the Penumbra Confidential Information;\n(c)\nuse the Penumbra Confidential Information solely for the purposes of evaluating whether to enter into a subsequent business\nrelationship or performing its obligations under an existing or future business relationship, and shall not use or exploit the Penumbra\nConfidential Information for its own benefit or the benefit of a third party; and\n(d)\nnot disclose, distribute, reproduce, reverse engineer, transfer or transmit, directly or indirectly, the Penumbra Confidential\nInformation without the prior written consent of Penumbra.\n2. Penumbra Confidential Information. Penumbra Confidential Information means, without limitation, any information disclosed by Penumbra to\nRecipient or obtained by Recipient through inspection or observation of Penumbra's property or facilities. Such information may be provided in writing or\nelectronically, orally or visually, and will be marked as "confidential" or "proprietary" or, if disclosed orally or visually, will be identified as confidential and/or\nproprietary at the time of such disclosure. Additionally, where the confidential and/or proprietary nature of the information disclosed is, or reasonably should be,\napparent based on the type of information and/or the context in which it is disclosed, such information will be considered Penumbra Confidential Information.\nPenumbra Confidential Information includes but is not limited to drawings, designs, notes, reports, presentations, data, and know-how that relates to Penumbra's\nbusiness, including but not limited to, pricing strategy and financial data, plans, models and forecasts; products and/or services; research and development\nprojects and activities; clinical trials; manufacturing techniques, processes and operations; policies; vendors; customers; sales; marketing; software and\nhardware; technology; and the like. Additionally, Penumbra Confidential Information includes any reports or documents created by Recipient that include,\nsummarize, refer to or use the Penumbra Confidential Information.\n3. Exclusions. Penumbra Confidential Information shall not include information that:\n-108-\n(a)\nwas in the lawful possession of Recipient prior to disclosure by Penumbra, as demonstrated by competent evidence;\n(b)\nis, at the time of disclosure, already available in the public domain or becomes publicly available through no act or omission of\nRecipient in breach of this Agreement;\n(c)\nis disclosed to Recipient by a third party not under an obligation of confidentiality to Penumbra; or\n(d)\nis or has been independently developed by Recipient without breach of this Agreement, as demonstrated by competent evidence.\nRecipient shall bear the burden of establishing any of the foregoing exclusions.\n4. Permitted Access to Penumbra Confidential Information. Penumbra Confidential Information shall only be disclosed to persons who are under\na duty of confidentiality to Recipient at least as stringent as the duties set forth herein. Recipient shall advise its employees who may have access to the\nPenumbra Confidential Information of its confidential nature and the obligations set forth in this Agreement. In the event of an inadvertent disclosure of the\nPenumbra Confidential Information, Recipient shall immediately notify Penumbra and shall take all measures practicable to limit and/or prevent further\ndisclosure.\n5. Required Disclosure. Notwithstanding any provision herein to the contrary, in the event that Recipient is required by judicial, administrative or\ngovernmental order to disclose the Penumbra Confidential Information or any portion thereof, Recipient may disclose the Penumbra Confidential Information\nwithout liability hereunder; provided, however, that Recipient shall first notify Penumbra of such requirement in advance of such planned disclosure so that\nPenumbra has an opportunity to take any available lawful actions to prevent or minimize the extent of disclosure of the Penumbra Confidential Information,\nincluding but not limited to seeking a protective order.\n6. Ownership; No License. The Penumbra Confidential Information, including any modification or enhancement thereto or any information based\non or derived therefrom, is and shall remain the property of Penumbra. Nothing in this Agreement shall be construed as creating an express or implied license or\nright to the Penumbra Confidential Information or to any patent, trademark, copyright or other intellectual property of Penumbra.\n7. No Warranty. Except as may otherwise be agreed to in writing by the parties, no warranties or representations of any kind, whether express or\nimplied, including but not limited to accuracy or completeness, are given by Penumbra with respect to the Penumbra Confidential Information or use thereof.\nThe Penumbra Confidential Information is provided on an "AS IS" basis. Penumbra shall not be liable for any damages arising out of the use of the Penumbra\nConfidential Information by Recipient.\n8. Term. The term of this Agreement shall be two (2) years from the Effective Date, unless terminated earlier in writing by either party; provided,\nhowever, in the event the parties enter or have entered, into a business relationship or other arrangement, the term of this Agreement shall be for two (2) years\nfrom the date of termination or expiration of such business relationship or other arrangement. Notwithstanding the termination or expiration of this Agreement,\nSections 1, 2, 3, 4, 5, 6, 10 and 13 remain in effect indefinitely or until one of the exceptions set forth in Section 3 applies.\n9. Return of Penumbra Confidential Information. Upon termination or expiration of this Agreement or written request of Penumbra, Recipient\nshall return or destroy, at the option of Penumbra, all Penumbra Confidential Information, including without limitation any written or electronic copies,\nsummaries and other documents containing the Penumbra Confidential Information; provided, however, that Recipient may retain one (1) copy of such\nPenumbra Confidential Information solely for archival purposes to ensure compliance with this Agreement. Notwithstanding the foregoing, Recipient may retain\nConfidential Information to the extent required by law and such Penumbra Confidential Information shall be held on a confidential basis. In addition, Recipient\nmay retain electronic files containing the Penumbra Confidential Information created pursuant to automatic archiving and backup procedures or maintain\npursuant to internal or regulatory document retention policies so long as such electronic files are kept confidential in accordance with the terms of this\nAgreement.\n10. Remedies. Recipient hereby acknowledges and agrees that any violation or threat of violation of this Agreement will result in irrevocable harm to\nPenumbra for which damages would be an inadequate remedy and that Penumbra shall be entitled to seek injunctive or other equitable relief. The foregoing\nremedy of equitable relief shall not be the sole or exclusive remedy available to Penumbra.\n-109-\n11. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, successors, and assignees.\nExcept for an assignment to a successor-in-interest that acquires a party by merger or acquisition, this Agreement shall not be assigned by either party without\nthe prior written consent of the other party.\n12. Notices. Any notices required hereunder shall be in writing and sent to a party at its address set forth above, or to such other address as may\nsubsequently be designated in writing. Such notice must be delivered in person, sent by first class mail or overnight courier, or transmitted by facsimile or\nthrough email.\n13. Governing Law. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of California, without\napplication of conflicts of law, and both parties consent to the jurisdiction of the federal and state courts located within the State of California.\n14. Entire Agreement. This Agreement sets forth the entire understanding between the parties as to the subject matter herein, and supersedes all\nprevious or contemporaneous understandings, commitments or agreements, whether written or oral, regarding confidentiality. If the parties mutually agree to\nenter into or continue a business relationship or other arrangement and do not enter into a new confidentiality agreement, the terms and conditions set forth\nherein shall apply to such business relationship or other arrangement, unless otherwise set forth in writing by the parties. Any amendment or modification to this\nAgreement must be in writing and signed by authorized representatives of both parties. Nothing in this Agreement shall be construed to create an obligation of\nthe parties to negotiate or enter into any subsequent agreement.\n15. Waiver; Severability. Failure of a party to insist upon the performance of the other party of any provision of this Agreement shall not be treated\nas a modification of this Agreement, nor shall such failure or election be treated as a waiver of the right of such party at any later time to insist upon strict\nperformance of such provision. If any provision of this Agreement is declared void or unenforceable, such provision shall be severed from this Agreement,\nwhich shall otherwise remain in full force and effect.\n16. Counterparts. This Agreement may be signed in any number of counterparts with the same effect as if the signature on each counterpart were on\nthe same instrument. All signatures may be transmitted by facsimile or a PDF attachment to an email, and such facsimile or attachment will, for all purposes, be\ndeemed to be an original signature.\n-110-\nIN WITNESS WHEREOF, the Parties hereto have executed this Agreement by their duly authorized representatives as of the Effective Date set forth\nabove.\nPenumbra, Inc.\nSignature:\nPrinted Name: Robert D. Evans\nTitle: Executive Vice President and General Counsel\nDate: September _____, 2015\nRecipient: Xxxxxx\nSignature:\nPrinted Name:\nTitle:\nDate:\n-111 -
+435d6eaa82632030cfc84bbd93e96bf8.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 9 d931329dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Agreement (“Agreement”), effective when executed by both parties, is made between AOL Inc., a Delaware corporation, with offices at 770\nBroadway, New York NY 10003 (“Company”), and Verizon Corporate Services Group Inc., a New York corporation, having an office and\nprincipal place of business at One Verizon Way, Basking Ridge, New Jersey 07920, on behalf of itself and for the benefit of its Affiliates,\nhereinafter defined (individually or collectively “Verizon”), to protect Confidential Information (hereafter defined) to be disclosed by the parties\nto each other with respect to a matter of mutual interest (Verizon and Company shall be referred to hereinafter collectively as the ‘Parties” or\neach individually as a “Party”). In particular, the matter of mutual interest will be discussions to explore potential opportunities for the Parties to\nwork together in the digital (online and mobile) media and entertainment and advertising spaces (referred to hereinafter as “the matter of mutual\ninterest”).\nMutual Nondisclosure Agreement\nVerizon Proprietary and Confidential\n1. To facilitate discussions, meetings and the conduct of business\nbetween the parties with respect to the matter of mutual interest\ndescribed above, it may be necessary for one Party to disclose\nconfidential information to the other. All proprietary information of\nany type or character that is either disclosed to the other Party or with\nwhich the other Party comes into contact, and that is identified as\nproprietary at the time of disclosure or that is of a nature that would\nreasonably be understood to be proprietary shall be considered as the\nconfidential information of the disclosing Party including without\nlimitation technical, customer, personnel and/or business information\nin written, graphic, oral or other tangible or intangible form\n(“Confidential Information”). Such Confidential Information may\ninclude proprietary material as well as material subject to and\nprotected by laws regarding secrecy of communications or trade\nsecrets.\n2. Unless terminated earlier by written notice, the term of this\nAgreement shall be for three (3) years The obligations with respect to\nConfidential Information shall extend for a period of three (3) years\nfollowing the date of termination or expiration of this agreement,\nexcept, however, that any customer information shall remain\nconfidential forever\n3. Each Party acknowledges and agrees as follows:\na. All Confidential Information acquired by either Party from\nthe other shall be and shall remain the exclusive property of the\nsource;\nb. To receive in confidence any Confidential Information; to use\nsuch Confidential Information only for purposes of work, services or\nanalysis related to the matter of mutual interest described above and\nfor other purposes only upon such terms as may be agreed upon\nbetween the parties in writing;\ne. To limit access to authorized employees who have a need to\nknow the Confidential Information in order for that Party to participate\nin the matter of mutual interest described above. Each Party shall limit\naccess to such Confidential Information to a Party’s contractors, and\nagents who (i) have a need to know the Confidential Information in\norder for such Party to participate in the matter of mutual interest\ndescribed above, and (ii) have also entered into a written agreement\nwith the receiving Party which provides the same or greater protections\nto any Confidential Information provided hereunder; and\nf. At the disclosing Party’s request, to return promptly to the\ndisclosing Party or to destroy any copies of such Confidential\nInformation that is in written, graphic or other tangible form, and\nprovide to the disclosing Party a list of all such material destroyed.\n4. These obligations do not apply to Confidential Information which,\nas shown by reasonably documented proof.\na. Was in the other’s possession prior to receipt from the\ndisclosing Party; or\nb. Was received by one Party in good faith from a third party not\nsubject to a confidential obligation to the other Party; or\nc. Now is or later becomes publicly known through no breach of\nconfidential obligation by the receiving Party; or\nd. Is disclosed to a third party by the source without a similar\nnondisclosure restriction; or\nMutual Nondisclosure Agreement\nVerizon Proprietary and Confidential\ne. Was developed by the receiving Party without the developing\nperson(s) having access to any of the Confidential Information\nreceived from the other Party; or\nf. Is authorized in writing by the disclosing Party to be released\nor is designated in writing by that Party as no longer being\nconfidential or proprietary.\n5. Each Party may disclose Confidential Information to an Affiliate,\nsubject to the terms and conditions set forth herein. For purposes of\nthis Agreement, an Affiliate shall be defined as an entity that\ncontrols, is controlled by, or is under common control with that Party.\nEach Party agrees to be responsible for any breach of this Agreement\nby each of its respective Affiliates.\n6. Other than as required by law or as set forth in Section 3(c),\nneither Party shall. without the other Party’s prior written consent,\ndisclose to any person, or make a public announcement of, the\nexistence of discussions or negotiations or any of the terms relating to\nthe matter of mutual interest described above or any Confidential\nInformation.\n7. If a Party (“Ordered Party’) receives a request to disclose any\nConfidential Information of the other Party, whether pursuant to a\nvalid subpoena or an order issued by a court or regulatory body\n(“Ordering Party), and on advice of legal counsel that disclosure is\nrequired by law, then prior to disclosure, the Ordered Party shall, to\nthe extent permitted by law, (i) notify the other Party of the terms of\nsuch request and advice, (ii) cooperate with the other Party in taking\nlawful steps to resist, narrow, or eliminate the need for such\ndisclosure, and (iii) if disclosure is nonetheless required, work with\nthe other Party to take into account the other Party’s reasonable\nrequirements as to its timing, content and manner of making or\ndelivery and use best efforts to obtain a protective order or other\nbinding assurance from the Ordering Party that confidential treatment\nshall be afforded to such portion of the Confidential Information as is\nrequired to be disclosed. The foregoing is without limitation of the\nother Party’s ability to seek a protective order or other relief limiting\nsuch disclosure; in such a case, the Ordered Party shall cooperate in\nsuch efforts by the other Party.\n8. It is agreed that a violation of any of the provisions of this\nAgreement may cause irreparable harm and injury to the non-violating\nParty and that Party shall be entitled, in addition to any other rights and\nremedies it may have at law or in equity, to seek an injunction\nenjoining and restraining the violating Party from doing or continuing\nto do any such act and any other violations or threatened violations of\nthis Agreement. Absent a showing of willful violation of this\nAgreement, neither Party shall be liable to the other, whether in\ncontract or in tort or otherwise, for special, indirect incidental or\nconsequential damages including lost income or profits of any kind,\neven if such Party has been advised of the possibility thereof.\n9. Neither disclosure of Confidential Information nor this Agreement\nshall be construed as a license to make, use or sell the Confidential\nInformation or derived products. Neither this Agreement nor provision\nof Confidential Information pursuant to it shall be construed as an\nagreement, commitment, promise or representation by either Party to\ndo business with the other or to do anything except as set out\nspecifically in this Agreement.\n10. The construction, interpretation and performance of this\nAgreement shall be governed by and construed in accordance with the\nlaws of the State of New York without regard to any conflicts of law\nprinciples and subject to the exclusive jurisdiction of its federal or state\ncourts in New York.\n11. No customer information of either Party shall be stored, transmitted\nor accessed, at, in or through a site located outside of the United States\nwithout the advance written consent of the other Party, Moreover,\nCompany agrees that, in event it comes into possession of any Verizon\nWireless customer data no such data shall be stored, transmitted or\naccessed, at, in or through, a site located outside of the United States\nwithout the advance written consent of Verizon Wireless. For purposes\nof this provision, the term “Verizon Wireless customer data shall mean:\n(a) any subscriber information, including, without limitation, name\naddress, phone number or other personal information of any Verizon\nWireless subscriber, (b) any call-associated data, including, without\nlimitation, the telephone number, internet address or similar identifying\ndesignator associated\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives.\nVerizon Corporate Services Group Inc.\nAOL Inc.\nBy: /s/ Christine Pantoya\nBy: /s/ John b. Frelinghuysen\nName: Christine C. Pantoya\nName: John b. Frelinghuysen\nTitle: Vice President, Corporate Strategy and Development\nTitle: SVP, Head of Strategy\nDate: 11/25/2014\nDate: 11/25/2014\nMutual Nondisclosure Agreement\nVerizon Proprietary and Confidential\nwith a communication; (c) any billing records; (d) the time, date, size\nduration of a communication or the physical location of equipment\nused in connection with a communication; or (e) the content of any\nVerizon Wireless customer communication.\n12. Each Party agrees to comply with all applicable laws, regulations,\ntreaties and orders in connection with its activities under this\nAgreement, including the laws regarding economic and trade\nsanctions and bribery of foreign officials. Each Party acknowledges\nthat the proprietary data, know-how, software or other materials or\ninformation obtained from the other Party under this Agreement may\nbe commodities and/or technical data subject to the Export\nAdministration Regulations (the “EAR”) of the U.S . Department of\nCommerce as well as trade and economic sanctions subject to the\nTrading With the Enemy Act (TWEA) and the International\nEmergency Economic Powers Act (IEEPA) of the Office of Foreign\nAsset Control within the Department of Commerce, and that any\nexport or re-export thereof must be in compliance with the EAR,\nTWEA and IEEPA. Each Party agrees that it shall not export or re-\nexport, directly or indirectly, either during the term of this Agreement\nor after its expiration, any commodities and/or technical data (or\ndirect products thereof) provided under this Agreement in any form\nto destinations in or nationals of Country Groups D:1 or E, as\nspecified in Supplement No. 1 to Part 740 of the EAR, and as\nmodified from time to time by the U.S. Department of Commerce, or\nto destinations that are otherwise controlled or embargoed under U.S.\nlaw.\n13. If any provision of this Agreement shall be invalid or\nunenforceable, then such invalidity or unenforceability shall not\ninvalidate or render unenforceable the entire Agreement. The entire\nAgreement shall be construed as if not containing the particular invalid\nor unenforceable provision or provisions, and the rights and\nobligations of the parties shall be construed and enforced accordingly.\n14. This Agreement may be executed originally or by facsimile, and in\ncounterparts, each of which shall be deemed an original and such\ncounterparts together shall constitute one and the same instrument.\nWhen so executed and delivered by each Party to the other, this\nAgreement shall become binding.\n15. This Agreement is the entire agreement between the parties with\nrespect to nondisclosure of Confidential Information pertaining to the\nmatter of mutual interest stated above and supersedes all prior\nagreements and understandings with respect to this subject. This\nAgreement may be amended only by written agreement executed by\nboth parties. This Agreement shall not be assigned or transferred by\neither Party without the prior written consent of the other.	EX-99.(D)(2) 9 d931329dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Agreement (“Agreement”), effective when executed by both parties, is made between AOL Inc., a Delaware corporation, with offices at 770\nBroadway, New York NY 10003 (“Company”), and Verizon Corporate Services Group Inc., a New York corporation, having an office and\nprincipal place of business at One Verizon Way, Basking Ridge, New Jersey 07920, on behalf of itself and for the benefit of its Affiliates,\nhereinafter defined (individually or collectively “Verizon”), to protect Confidential Information (hereafter defined) to be disclosed by the parties\nto each other with respect to a matter of mutual interest (Verizon and Company shall be referred to hereinafter collectively as the ‘Parties” or\neach individually as a “Party”). In particular, the matter of mutual interest will be discussions to explore potential opportunities for the Parties to\nwork together in the digital (online and mobile) media and entertainment and advertising spaces (referred to hereinafter as “the matter of mutual\n \n \ninterest”).\n1. To facilitate discussions, meetings and the conduct of business\nbetween the parties with respect to the matter of mutual interest\ndescribed above, it may be necessary for one Party to disclose\nconfidential information to the other. All proprietary information of\nany type or character that is either disclosed to the other Party or with\nwhich the other Party comes into contact, and that is identified as\nproprietary at the time of disclosure or that is of a nature that would\nreasonably be understood to be proprietary shall be considered as the\nconfidential information of the disclosing Party including without\nlimitation technical, customer, personnel and/or business information\nin written, graphic, oral or other tangible or intangible form\n(“Confidential Information”). Such Confidential Information may\ninclude proprietary material as well as material subject to and\nprotected by laws regarding secrecy of communications or trade\nsecrets.\n2. Unless terminated earlier by written notice, the term of this\nAgreement shall be for three (3) years The obligations with respect to\nConfidential Information shall extend for a period of three (3) years\nfollowing the date of termination or expiration of this agreement,\nexcept, however, that any customer information shall remain\nconfidential forever\n3. Each Party acknowledges and agrees as follows:\na. All Confidential Information acquired by either Party from\nthe other shall be and shall remain the exclusive property of the\nsource;\nb. To receive in confidence any Confidential Information; to use\nsuch Confidential Information only for purposes of work, services or\nanalysis related to the matter of mutual interest described above and\nfor other purposes only upon such terms as may be agreed upon\nbetween the parties in writing;\nMutual Nondisclosure Agreement\nVerizon Proprietary and Confidential\ne. To limit access to authorized employees who have a need to\nknow the Confidential Information in order for that Party to participate\nin the matter of mutual interest described above. Each Party shall limit\naccess to such Confidential Information to a Party’s contractors, and\nagents who (i) have a need to know the Confidential Information in\norder for such Party to participate in the matter of mutual interest\ndescribed above, and (ii) have also entered into a written agreement\nwith the receiving Party which provides the same or greater protections\nto any Confidential Information provided hereunder; and\nf. At the disclosing Party’s request, to return promptly to the\ndisclosing Party or to destroy any copies of such Confidential\nInformation that is in written, graphic or other tangible form, and\nprovide to the disclosing Party a list of all such material destroyed.\n4. These obligations do not apply to Confidential Information which,\nas shown by reasonably documented proof.\na. Was in the other’s possession prior to receipt from the\ndisclosing Party; or\nb. Was received by one Party in good faith from a third party not\nsubject to a confidential obligation to the other Party; or\nc. Now is or later becomes publicly known through no breach of\nconfidential obligation by the receiving Party; or\nd. Is disclosed to a third party by the source without a similar\nnondisclosure restriction; or\ne. Was developed by the receiving Party without the developing\nperson(s) having access to any of the Confidential Information\nreceived from the other Party; or\nf. Is authorized in writing by the disclosing Party to be released\nor is designated in writing by that Party as no longer being\nconfidential or proprietary.\n5. Each Party may disclose Confidential Information to an Affiliate,\nsubject to the terms and conditions set forth herein. For purposes of\nthis Agreement, an Affiliate shall be defined as an entity that\ncontrols, is controlled by, or is under common control with that Party.\nEach Party agrees to be responsible for any breach of this Agreement\nby each of its respective Affiliates.\n6. Other than as required by law or as set forth in Section 3(c),\nneither Party shall. without the other Party’s prior written consent,\ndisclose to any person, or make a public announcement of, the\nexistence of discussions or negotiations or any of the terms relating to\nthe matter of mutual interest described above or any Confidential\nInformation.\n7. If a Party (“Ordered Party’) receives a request to disclose any\nConfidential Information of the other Party, whether pursuant to a\nvalid subpoena or an order issued by a court or regulatory body\n(“Ordering Party), and on advice of legal counsel that disclosure is\nrequired by law, then prior to disclosure, the Ordered Party shall, to\nthe extent permitted by law, (i) notify the other Party of the terms of\nsuch request and advice, (ii) cooperate with the other Party in taking\nlawful steps to resist, narrow, or eliminate the need for such\ndisclosure, and (iii) if disclosure is nonetheless required, work with\nthe other Party to take into account the other Party’s reasonable\nrequirements as to its timing, content and manner of making or\ndelivery and use best efforts to obtain a protective order or other\nbinding assurance from the Ordering Party that confidential treatment\nshall be afforded to such portion of the Confidential Information as is\nrequired to be disclosed. The foregoing is without limitation of the\nother Party’s ability to seek a protective order or other relief limiting\nsuch disclosure; in such a case, the Ordered Party shall cooperate in\nsuch efforts by the other Party.\nMutual Nondisclosure Agreement\nVerizon Proprietary and Confidential\n8. It is agreed that a violation of any of the provisions of this\nAgreement may cause irreparable harm and injury to the non-violating\nParty and that Party shall be entitled, in addition to any other rights and\nremedies it may have at law or in equity, to seek an injunction\nenjoining and restraining the violating Party from doing or continuing\nto do any such act and any other violations or threatened violations of\nthis Agreement. Absent a showing of willful violation of this\nAgreement, neither Party shall be liable to the other, whether in\ncontract or in tort or otherwise, for special, indirect incidental or\nconsequential damages including lost income or profits of any kind,\neven if such Party has been advised of the possibility thereof.\n9. Neither disclosure of Confidential Information nor this Agreement\nshall be construed as a license to make, use or sell the Confidential\nInformation or derived products. Neither this Agreement nor provision\nof Confidential Information pursuant to it shall be construed as an\nagreement, commitment, promise or representation by either Party to\ndo business with the other or to do anything except as set out\nspecifically in this Agreement.\n10. The construction, interpretation and performance of this\nAgreement shall be governed by and construed in accordance with the\nlaws of the State of New York without regard to any conflicts of law\nprinciples and subject to the exclusive jurisdiction of its federal or state\ncourts in New York.\n11. No customer information of either Party shall be stored, transmitted\nor accessed, at, in or through a site located outside of the United States\nwithout the advance written consent of the other Party, Moreover,\nCompany agrees that, in event it comes into possession of any Verizon\nWireless customer data no such data shall be stored, transmitted or\naccessed, at, in or through, a site located outside of the United States\nwithout the advance written consent of Verizon Wireless. For purposes\nof this provision, the term “Verizon Wireless customer data shall mean:\n(a) any subscriber information, including, without limitation, name\naddress, phone number or other personal information of any Verizon\nWireless subscriber, (b) any call-associated data, including, without\nlimitation, the telephone number, internet address or similar identifying\ndesignator associated\nwith a communication; (c) any billing records; (d) the time, date, size\nduration of a communication or the physical location of equipment\nused in connection with a communication; or (e) the content of any\nVerizon Wireless customer communication.\n12. Each Party agrees to comply with all applicable laws, regulations,\ntreaties and orders in connection with its activities under this\nAgreement, including the laws regarding economic and trade\nsanctions and bribery of foreign officials. Each Party acknowledges\nthat the proprietary data, know-how, software or other materials or\ninformation obtained from the other Party under this Agreement may\nbe commodities and/or technical data subject to the Export\nAdministration Regulations (the “EAR”) of the U.S. Department of\nCommerce as well as trade and economic sanctions subject to the\nTrading With the Enemy Act (TWEA) and the International\nEmergency Economic Powers Act (IEEPA) of the Office of Foreign\nAsset Control within the Department of Commerce, and that any\nexport or re-export thereof must be in compliance with the EAR,\nTWEA and IEEPA. Each Party agrees that it shall not export or re-\nexport, directly or indirectly, either during the term of this Agreement\nor after its expiration, any commodities and/or technical data (or\ndirect products thereof) provided under this Agreement in any form\nto destinations in or nationals of Country Groups D:1 or E, as\nspecified in Supplement No. 1 to Part 740 of the EAR, and as\nmodified from time to time by the U.S. Department of Commerce, or\nto destinations that are otherwise controlled or embargoed under U.S.\nlaw.\n13. If any provision of this Agreement shall be invalid or\nunenforceable, then such invalidity or unenforceability shall not\ninvalidate or render unenforceable the entire Agreement. The entire\nAgreement shall be construed as if not containing the particular invalid\nor unenforceable provision or provisions, and the rights and\nobligations of the parties shall be construed and enforced accordingly.\n14. This Agreement may be executed originally or by facsimile, and in\ncounterparts, each of which shall be deemed an original and such\ncounterparts together shall constitute one and the same instrument.\nWhen so executed and delivered by each Party to the other, this\nAgreement shall become binding.\n15. This Agreement is the entire agreement between the parties with\nrespect to nondisclosure of Confidential Information pertaining to the\nmatter of mutual interest stated above and supersedes all prior\nagreements and understandings with respect to this subject. This\nAgreement may be amended only by written agreement executed by\nboth parties. This Agreement shall not be assigned or transferred by\neither Party without the prior written consent of the other.\nIN WITNESS WHEREQF, the parties have caused this Agreement to be executed by their duly authorized representatives. Verizon Corporate Services Group Inc.\nBy: /s/ Christine Pantoya\nName: Christine C. Pantoya\nTitle: Vice President, Corporate Strategy and Development\nDate: 11/25/2014\nMutual Nondisclosure Agreement\nVerizon Proprietary and Confidential\nAOL Inc.\nBy: /s/ John b. Frelinghuysen\nName: John b. Frelinghuysen\nTitle: SVP, Head of Strategy\nDate: 11/25/2014	EX-99.(D)(2) 9 d931329dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Agreement ("Agreement"), effective when executed by both parties, is made between AOL Inc., a Delaware corporation, with offices\nat\n770\nBroadway, New York NY 10003 ("Company."), and Verizon Corporate Services Group Inc., a New York corporation, having an office and\nprincipal\nplace of business at One Verizon Way, Basking Ridge, New Jersey 07920, on behalf of itself and for the benefit of its Affiliates,\nhereinafter\ndefined (individually or collectively "Verizon"), to protect Confidential Information (hereafter defined) to be disclosed by the parties\nto each other with respect to a matter of mutual interest (Verizon and Company shall be referred to hereinafter collectively as the 'Parties" or\neach\nindividually as a "Party."). In particular, the matter of mutual interest will be discussions to explore potential opportunities for the Parties to\nwork together in the digital (online and mobile) media and entertainment and advertising spaces (referred to hereinafter as "the\nmatter\nof\nmutual\ninterest").\n1. To facilitate discussions, meetings and the conduct of business\ne. To limit access to authorized employees who have a need to\nbetween the parties with respect to the matter of mutual interest\nknow the Confidential Information in order for that Party to participate\ndescribed above, it may be necessary for one Party to disclose\nin the matter of mutual interest described above. Each Party shall limit\nconfidential information to the other. All proprietary information of\naccess to such Confidential Information to a Party's contractors, and\nany type or character that is either disclosed to the other Party or with\nagents who (i) have a need to know the Confidential Information in\nwhich the other Party comes into contact, and that is identified as\norder for such Party to participate in the matter of mutual interest\nproprietary at the time of disclosure or that is of a nature that would\ndescribed above, and (ii) have also entered into a written agreement\nreasonably be understood to be proprietary shal be considered as the\nwith the receiving Party which provides the same or greater protections\nconfidential information of the disclosing Party including without\nto any Confidential Information provided hereunder; and\nlimitation technical, customer, personnel and/or business information\nin written, graphic, oral or other tangible or intangible form\nf. At the disclosing Party's request, to return promptly to the\n("Confidential Information"). Such Confidential Information may\ndisclosing Party or to destroy any copies of such Confidential\ninclude proprietary material as well as material subject to and\nInformation that is in written, graphic or other tangible form, and\nprotected by laws regarding secrecy of communications or trade\nprovide to the disclosing Party a list of all such material destroyed.\nsecrets.\n4. These obligations do not apply to Confidential Information which,\n2. Unless terminated earlier by written notice, the term of this\nas shown by reasonably documented proof.\nAgreement shall be for three (3) years The obligations with respect to\nConfidential Information shall extend for a period of three (3) years\na. Was in the other's possession prior to receipt from the\nfollowing the date of termination or expiration of this agreement,\ndisclosing Party; or\nexcept, however, that any customer information shall remain\nconfidential forever\nb. Was received by one Party in good faith from a third party not\nsubject to a confidential obligation to the other Party; or\n3. Each Party acknowledges and agrees as follows:\na. All Confidential Information acquired by either Party from\nC. Now is or later becomes publicly known through no breach of\nthe other shall be and shall remain the exclusive property of the\nconfidential obligation by the receiving Party; or\nsource;\nd. Is disclosed to a third party by the source without a similar\nb. To receive in confidence any Confidential Information; to use\nnondisclosure restriction; or\nsuch Confidential Information only for purposes of work, services or\nanalysis related to the matter of mutual interest described above and\nfor other purposes only upon such terms as may be agreed upon\nbetween the parties in writing;\nMutual Nondisclosure Agreement\nVerizon Proprietary and Confidential\ne. Was developed by the receiving Party without the developing\n8. It is agreed that a violation of any of the provisions of this\nperson(s) having access to any of the Confidential Information\nAgreement may cause irreparable harm and injury to the non-violating\nreceived from the other Party; or\nParty and that Party shall be entitled, in addition to any other rights and\nremedies it may have at law or in equity, to seek an injunction\nf. Is authorized in writing by the disclosing Party to be released\nenjoining and restraining the violating Party from doing or continuing\nor is designated in writing by that Party as no longer being\nto do any such act and any other violations or threatened violations of\nconfidential or proprietary.\nthis Agreement. Absent a showing of willful violation of this\nAgreement, neither Party shall be liable to the other, whether in\n5. Each Party may disclose Confidential Information to an Affiliate,\ncontract or in tort or otherwise, for special, indirect incidental or\nsubject to the terms and conditions set forth herein. For purposes of\nconsequential damages including lost income or profits of any kind,\nthis Agreement, an Affiliate shall be defined as an entity that\neven if such Party has been advised of the possibility thereof.\ncontrols, is controlled by, or is under common control with that Party.\nEach Party agrees to be responsible for any breach of this Agreement\n9. Neither disclosure of Confidential Information nor this Agreement\nby each of its respective Affiliates.\nshall be construed as a license to make, use or sell the Confidential\nInformation or derived products. Neither this Agreement nor provision\n6. Other than as required by law or as set forth in Section 3(c),\nof Confidential Information pursuant to it shall be construed as an\nneither Party shall. without the other Party's prior written consent,\nagreement, commitment, promise or representation by either Party to\ndisclose to any person, or make a public announcement of, the\ndo business with the other or to do anything except as set out\nexistence of discussions or negotiations or any of the terms relating to\nspecifically in this Agreement.\nthe matter of mutual interest described above or any Confidential\nInformation.\n10. The construction, interpretation and performance of this\nAgreement shall be governed by and construed in accordance with the\n7. If a Party ("Ordered Party') receives a request to disclose any\nlaws of the State of New York without regard to any conflicts of law\nConfidential Information of the other Party, whether pursuant to a\nprinciples and subject to the exclusive jurisdiction of its federal or state\nvalid subpoena or an order issued by a court or regulatory body\ncourts in New York.\n("Ordering Party), and on advice of legal counsel that disclosure is\nrequired by law, then prior to disclosure, the Ordered Party shall, to\n11. No customer information of either Party shall be stored, transmitted\nthe extent permitted by law, (i) notify the other Party of the terms of\nor accessed, at, in or through a site located outside of the United States\nsuch request and advice, (ii) cooperate with the other Party in taking\nwithout the advance written consent of the other Party, Moreover,\nlawful steps to resist, narrow, or eliminate the need for such\nCompany agrees that, in event it comes into possession of any Verizon\ndisclosure, and (iii) if disclosure is nonetheless required, work with\nWireless customer data no such data shall be stored, transmitted or\nthe other Party to take into account the other Party's reasonable\naccessed, at, in or through, a site located outside of the United States\nrequirements as to its timing, content and manner of making or\nwithout the advance written consent of Verizon Wireless. For purposes\ndelivery and use best efforts to obtain a protective order or other\nof this provision, the term "Verizon Wireless customer data shall mean:\nbinding assurance from the Ordering Party that confidential treatment\n(a) any subscriber information, including, without limitation, name\nshall be afforded to such portion of the Confidential Information as is\naddress, phone number or other personal information of any Verizon\nrequired to be disclosed. The foregoing is without limitation of the\nWireless subscriber, (b) any call-associated data, including, without\nother Party's ability to seek a protective order or other relief limiting\nlimitation, the telephone number, internet address or similar identifying\nsuch disclosure; in such a case, the Ordered Party shall cooperate in\ndesignator associated\nsuch efforts by the other Party.\nMutual Nondisclosure Agreement\nVerizon Proprietary and Confidential\nwith a communication; (c) any billing records; (d) the time, date, size\nmodified from time to time by the U.S. Department of Commerce, or\nduration of a communication or the physical location of equipment\nto destinations that are otherwise controlled or embargoed under U.S.\nused in connection with a communication; or (e) the content of any\nlaw.\nVerizon Wireless customer communication.\n13. If any provision of this Agreement shall be invalid or\n12. Each Party agrees to comply with all applicable laws, regulations,\nunenforceable, then such invalidity or unenforceability shall not\ntreaties and orders in connection with its activities under this\ninvalidate or render unenforceable the entire Agreement. The entire\nAgreement, including the laws regarding economic and trade\nAgreement shall be construed as if not containing the particular invalid\nsanctions and bribery of foreign officials. Each Party acknowledges\nor unenforceable provision or provisions, and the rights and\nthat the proprietary data, know-how, software or other materials or\nobligations of the parties shall be construed and enforced accordingly.\ninformation obtained from the other Party under this Agreement may\nbe commodities and/or technical data subject to the Export\n14. This Agreement may be executed originally or by facsimile, and in\nAdministration Regulations (the "EAR") of the U.S. Department of\ncounterparts, each of which shall be deemed an original and such\nCommerce as well as trade and economic sanctions subject to the\ncounterparts together shall constitute one and the same instrument.\nTrading With the Enemy Act (TWEA) and the International\nWhen so executed and delivered by each Party to the other, this\nEmergency Economic Powers Act (IEEPA) of the Office of Foreign\nAgreement shall become binding.\nAsset Control within the Department of Commerce, and that any\nexport or re-export thereof must be in compliance with the EAR,\n15. This Agreement is the entire agreement between the parties with\nTWEA and IEEPA. Each Party agrees that it shall not export or re-\nrespect to nondisclosure of Confidential Information pertaining to the\nexport, directly or indirectly, either during the term of this Agreement\nmatter of mutual interest stated above and supersedes all prior\nor after its expiration, any commodities and/or technical data (or\nagreements and understandings with respect to this subject. This\ndirect products thereof) provided under this Agreement in any form\nAgreement may be amended only by written agreement executed by\nto destinations in or nationals of Country Groups D:1 or E, as\nboth parties. This Agreement shall not be assigned or transferred by\nspecified in Supplement No. 1 to Part 740 of the EAR, and as\neither Party without the prior written consent of the other.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives.\nVerizon Corporate Services Group Inc.\nAOL Inc.\nBy: /s/ Christine Pantoya\nBy: /s/ John b. Frelinghuysen\nName: Christine C. Pantoya\nName: John b. Frelinghuysen\nTitle: Vice President, Corporate Strategy and Development\nTitle: SVP, Head of Strategy\nDate: 11/25/2014\nDate: 11/25/2014\nMutual Nondisclosure Agreement\nVerizon Proprietary and Confidential	EX-99.(D)(2) 9 d931329dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Agreement (“Agreement”), effective when executed by both parties, is made between AOL Inc., a Delaware corporation, with offices at 770\nBroadway, New York NY 10003 (“Company”), and Verizon Corporate Services Group Inc., a New York corporation, having an office and\nprincipal place of business at One Verizon Way, Basking Ridge, New Jersey 07920, on behalf of itself and for the benefit of its Affiliates,\nhereinafter defined (individually or collectively “Verizon”), to protect Confidential Information (hereafter defined) to be disclosed by the parties\nto each other with respect to a matter of mutual interest (Verizon and Company shall be referred to hereinafter collectively as the ‘Parties” or\neach individually as a “Party”). In particular, the matter of mutual interest will be discussions to explore potential opportunities for the Parties to\nwork together in the digital (online and mobile) media and entertainment and advertising spaces (referred to hereinafter as “the matter of mutual\ninterest”).\nMutual Nondisclosure Agreement\nVerizon Proprietary and Confidential\n1. To facilitate discussions, meetings and the conduct of business\nbetween the parties with respect to the matter of mutual interest\ndescribed above, it may be necessary for one Party to disclose\nconfidential information to the other. All proprietary information of\nany type or character that is either disclosed to the other Party or with\nwhich the other Party comes into contact, and that is identified as\nproprietary at the time of disclosure or that is of a nature that would\nreasonably be understood to be proprietary shall be considered as the\nconfidential information of the disclosing Party including without\nlimitation technical, customer, personnel and/or business information\nin written, graphic, oral or other tangible or intangible form\n(“Confidential Information”). Such Confidential Information may\ninclude proprietary material as well as material subject to and\nprotected by laws regarding secrecy of communications or trade\nsecrets.\n2. Unless terminated earlier by written notice, the term of this\nAgreement shall be for three (3) years The obligations with respect to\nConfidential Information shall extend for a period of three (3) years\nfollowing the date of termination or expiration of this agreement,\nexcept, however, that any customer information shall remain\nconfidential forever\n3. Each Party acknowledges and agrees as follows:\na. All Confidential Information acquired by either Party from\nthe other shall be and shall remain the exclusive property of the\nsource;\nb. To receive in confidence any Confidential Information; to use\nsuch Confidential Information only for purposes of work, services or\nanalysis related to the matter of mutual interest described above and\nfor other purposes only upon such terms as may be agreed upon\nbetween the parties in writing;\ne. To limit access to authorized employees who have a need to\nknow the Confidential Information in order for that Party to participate\nin the matter of mutual interest described above. Each Party shall limit\naccess to such Confidential Information to a Party’s contractors, and\nagents who (i) have a need to know the Confidential Information in\norder for such Party to participate in the matter of mutual interest\ndescribed above, and (ii) have also entered into a written agreement\nwith the receiving Party which provides the same or greater protections\nto any Confidential Information provided hereunder; and\nf. At the disclosing Party’s request, to return promptly to the\ndisclosing Party or to destroy any copies of such Confidential\nInformation that is in written, graphic or other tangible form, and\nprovide to the disclosing Party a list of all such material destroyed.\n4. These obligations do not apply to Confidential Information which,\nas shown by reasonably documented proof.\na. Was in the other’s possession prior to receipt from the\ndisclosing Party; or\nb. Was received by one Party in good faith from a third party not\nsubject to a confidential obligation to the other Party; or\nc. Now is or later becomes publicly known through no breach of\nconfidential obligation by the receiving Party; or\nd. Is disclosed to a third party by the source without a similar\nnondisclosure restriction; or\nMutual Nondisclosure Agreement\nVerizon Proprietary and Confidential\ne. Was developed by the receiving Party without the developing\nperson(s) having access to any of the Confidential Information\nreceived from the other Party; or\nf. Is authorized in writing by the disclosing Party to be released\nor is designated in writing by that Party as no longer being\nconfidential or proprietary.\n5. Each Party may disclose Confidential Information to an Affiliate,\nsubject to the terms and conditions set forth herein. For purposes of\nthis Agreement, an Affiliate shall be defined as an entity that\ncontrols, is controlled by, or is under common control with that Party.\nEach Party agrees to be responsible for any breach of this Agreement\nby each of its respective Affiliates.\n6. Other than as required by law or as set forth in Section 3(c),\nneither Party shall. without the other Party’s prior written consent,\ndisclose to any person, or make a public announcement of, the\nexistence of discussions or negotiations or any of the terms relating to\nthe matter of mutual interest described above or any Confidential\nInformation.\n7. If a Party (“Ordered Party’) receives a request to disclose any\nConfidential Information of the other Party, whether pursuant to a\nvalid subpoena or an order issued by a court or regulatory body\n(“Ordering Party), and on advice of legal counsel that disclosure is\nrequired by law, then prior to disclosure, the Ordered Party shall, to\nthe extent permitted by law, (i) notify the other Party of the terms of\nsuch request and advice, (ii) cooperate with the other Party in taking\nlawful steps to resist, narrow, or eliminate the need for such\ndisclosure, and (iii) if disclosure is nonetheless required, work with\nthe other Party to take into account the other Party’s reasonable\nrequirements as to its timing, content and manner of making or\ndelivery and use best efforts to obtain a protective order or other\nbinding assurance from the Ordering Party that confidential treatment\nshall be afforded to such portion of the Confidential Information as is\nrequired to be disclosed. The foregoing is without limitation of the\nother Party’s ability to seek a protective order or other relief limiting\nsuch disclosure; in such a case, the Ordered Party shall cooperate in\nsuch efforts by the other Party.\n8. It is agreed that a violation of any of the provisions of this\nAgreement may cause irreparable harm and injury to the non-violating\nParty and that Party shall be entitled, in addition to any other rights and\nremedies it may have at law or in equity, to seek an injunction\nenjoining and restraining the violating Party from doing or continuing\nto do any such act and any other violations or threatened violations of\nthis Agreement. Absent a showing of willful violation of this\nAgreement, neither Party shall be liable to the other, whether in\ncontract or in tort or otherwise, for special, indirect incidental or\nconsequential damages including lost income or profits of any kind,\neven if such Party has been advised of the possibility thereof.\n9. Neither disclosure of Confidential Information nor this Agreement\nshall be construed as a license to make, use or sell the Confidential\nInformation or derived products. Neither this Agreement nor provision\nof Confidential Information pursuant to it shall be construed as an\nagreement, commitment, promise or representation by either Party to\ndo business with the other or to do anything except as set out\nspecifically in this Agreement.\n10. The construction, interpretation and performance of this\nAgreement shall be governed by and construed in accordance with the\nlaws of the State of New York without regard to any conflicts of law\nprinciples and subject to the exclusive jurisdiction of its federal or state\ncourts in New York.\n11. No customer information of either Party shall be stored, transmitted\nor accessed, at, in or through a site located outside of the United States\nwithout the advance written consent of the other Party, Moreover,\nCompany agrees that, in event it comes into possession of any Verizon\nWireless customer data no such data shall be stored, transmitted or\naccessed, at, in or through, a site located outside of the United States\nwithout the advance written consent of Verizon Wireless. For purposes\nof this provision, the term “Verizon Wireless customer data shall mean:\n(a) any subscriber information, including, without limitation, name\naddress, phone number or other personal information of any Verizon\nWireless subscriber, (b) any call-associated data, including, without\nlimitation, the telephone number, internet address or similar identifying\ndesignator associated\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives.\nVerizon Corporate Services Group Inc.\nAOL Inc.\nBy: /s/ Christine Pantoya\nBy: /s/ John b. Frelinghuysen\nName: Christine C. Pantoya\nName: John b. Frelinghuysen\nTitle: Vice President, Corporate Strategy and Development\nTitle: SVP, Head of Strategy\nDate: 11/25/2014\nDate: 11/25/2014\nMutual Nondisclosure Agreement\nVerizon Proprietary and Confidential\nwith a communication; (c) any billing records; (d) the time, date, size\nduration of a communication or the physical location of equipment\nused in connection with a communication; or (e) the content of any\nVerizon Wireless customer communication.\n12. Each Party agrees to comply with all applicable laws, regulations,\ntreaties and orders in connection with its activities under this\nAgreement, including the laws regarding economic and trade\nsanctions and bribery of foreign officials. Each Party acknowledges\nthat the proprietary data, know-how, software or other materials or\ninformation obtained from the other Party under this Agreement may\nbe commodities and/or technical data subject to the Export\nAdministration Regulations (the “EAR”) of the U.S . Department of\nCommerce as well as trade and economic sanctions subject to the\nTrading With the Enemy Act (TWEA) and the International\nEmergency Economic Powers Act (IEEPA) of the Office of Foreign\nAsset Control within the Department of Commerce, and that any\nexport or re-export thereof must be in compliance with the EAR,\nTWEA and IEEPA. Each Party agrees that it shall not export or re-\nexport, directly or indirectly, either during the term of this Agreement\nor after its expiration, any commodities and/or technical data (or\ndirect products thereof) provided under this Agreement in any form\nto destinations in or nationals of Country Groups D:1 or E, as\nspecified in Supplement No. 1 to Part 740 of the EAR, and as\nmodified from time to time by the U.S. Department of Commerce, or\nto destinations that are otherwise controlled or embargoed under U.S.\nlaw.\n13. If any provision of this Agreement shall be invalid or\nunenforceable, then such invalidity or unenforceability shall not\ninvalidate or render unenforceable the entire Agreement. The entire\nAgreement shall be construed as if not containing the particular invalid\nor unenforceable provision or provisions, and the rights and\nobligations of the parties shall be construed and enforced accordingly.\n14. This Agreement may be executed originally or by facsimile, and in\ncounterparts, each of which shall be deemed an original and such\ncounterparts together shall constitute one and the same instrument.\nWhen so executed and delivered by each Party to the other, this\nAgreement shall become binding.\n15. This Agreement is the entire agreement between the parties with\nrespect to nondisclosure of Confidential Information pertaining to the\nmatter of mutual interest stated above and supersedes all prior\nagreements and understandings with respect to this subject. This\nAgreement may be amended only by written agreement executed by\nboth parties. This Agreement shall not be assigned or transferred by\neither Party without the prior written consent of the other.
+46f429bd4fdc9476d4b0026f3fd3b602.pdf	effective_date jurisdiction party term	John D. Thomas\nJuly 11, 2017\nPage 16 of 19\nEXHIBIT 1\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (the “Agreement”) is dated as of October 1, 2018 and is made\nand entered into by and between CUBIC CORPORATION, a corporation organized and existing under the\nlaws of the State of Delaware having its principal offices at 9333 Balboa Avenue, San Diego, California\n92123, and JOHN D. THOMAS (“Recipient”).\n1.\nRecipient may be providing occasional consulting services to Cubic Corporation or its\nsubsidiaries (collectively “Cubic” or the “Company”), during the period of October 1, 2018 and September\n30, 2019. In providing such consulting services, Recipient may receive access to Proprietary Information\n(as defined below) from Cubic that Cubic deems to be confidential, proprietary, and/or business-sensitive.\nCubic will provide Recipient with access to such Proprietary Information for the sole purpose of learning\nabout and assisting with Cubic’s business and operations (hereinafter, the “Purpose”), subject to\nRecipient’s strict adherence to the obligations set forth below.\n2.\n"Proprietary Information" shall mean all forms and types of business, technical, financial,\neconomic, sales, marketing, or customer information of Cubic, including, without limitation, written,\nmagnetic or optical media, and oral and visual disclosures that Recipient receives or has access to, from\nthe Cubic network or any other source, as a result of the Purpose, which has not been previously disclosed\nto the general public by an authorized Company representative or customer, regardless of whether such\ninformation would be deemed a trade secret under applicable law. Proprietary Information shall be\ninterpreted broadly and includes, but is not limited to, business strategies and plans, financial information,\nprojections, pricing and cost information, proposals, lists of present of future customers, all information\nobtained from or about current or future customers, supplier lists and information, plans and results of\nresearch and development, reports, manuals, policies, evaluations, designs, specifications, blueprints,\ndrawings, patterns, compilations, formulas, programs, software, prototypes, methods, processes, devices,\nprocedures, special techniques of any kind peculiar to the Company’s operations, or other confidential or\nproprietary information or intellectual property related to the business, products, services, or plans of\nCompany, whether tangible or intangible, and whether stored or memorialized physically, electronically,\nphotographically, or in Recipient’s memory. This specifically includes all information the Company\nreceives from customers or other third parties that is not generally known to the public or is subject to a\nconfidentiality agreement. Proprietary Information does not include furnished information which:\n(1) At the time of disclosure, is in the public domain;\n(2) After disclosure, lawfully enters the public domain other than as a result of the act or\nomission of Recipient; or\n(3) Recipient can conclusively demonstrate by written evidence that the same was\nlawfully known to it without restriction or was developed independently by it without direct or indirect\naccess to the Proprietary Information provided by Cubic.\n3.\nRecipient acknowledges that the Company is entitled to prevent the unauthorized use or\ndisclosure of its Proprietary Information. Unless expressly authorized by Cubic for its sole benefit,\nRecipient shall hold in the strictest confidence and not use, disclose, or allow to be\nJohn D. Thomas\nJuly 11, 2017\nPage 17 of 19\ndisclosed to any person, firm, or corporation, the Company’s Proprietary Information. Recipient shall take\nall reasonable measures necessary to maintain the secrecy of Proprietary Information.\n4.\nThis Agreement shall become effective upon its execution by both Parties as of the date written\nabove (the “Effective Date”) and shall apply to all information furnished by Cubic to Recipient for a\nperiod of one year following the Effective Date (“the Term”). The Term may be extended by mutual\nwritten agreement between the Parties.\n5.\nUpon expiration or termination of this Agreement, or upon demand of Cubic at any time,\nRecipient shall, at Cubic’s option, (a) immediately return all Proprietary Information (including, but not\nlimited to, all copies, extracts, summaries, or digests thereof) to Cubic or (b) destroy all Proprietary\nInformation (including, but not limited to, all copies, extracts, summaries, or digests thereof) and provide\nCubic with written certification of such destruction. Notwithstanding the termination or expiration of this\nAgreement, this Agreement shall be coterminous and expire with any agreement to which it is or becomes\nappended, and the scope of this Agreement shall be augmented to permit the Parties to perform under the\nappended agreement.\n6.\nAll rights in Proprietary Information are reserved by Cubic. Other than the rights expressly\ngranted herein, neither this Agreement, nor the disclosure of any Proprietary Information, shall be\nconstrued as expressing or implying any other rights, including but not limited to any rights of ownership\nof Proprietary Information, or rights to any invention, patent, copyright or other intellectual property right\nheretofore or hereafter owned, acquired, developed, or licensable by Cubic. All Proprietary Information\nshall remain the exclusive property of Cubic. This Agreement shall not be construed to recognize or create\nany formal business, agency, or employment relationship.\n7.\nAny notice under or in connection with this Agreement shall be in writing and delivered by\nreputable overnight mail equivalent carrier, facsimile, or first class mail. Such notice shall be deemed to\nhave been given when received by the Party to which the communication is directed at its address set forth\nbelow:\nTo Cubic:\nTo Recipient:\nAttn: Law Department\nJohn D. Thomas\nCubic Corporation\n9333 Balboa Avenue\nSan Diego, CA 92123\nPhone: (858) 505-2499\nFax: (858) 505-1599\n8.\nNeither this Agreement, nor any rights or obligations hereunder, may be assigned, delegated, or\notherwise transferred by either Party without the express prior written consent of the other Party, except to\nan entity that succeeds to all or substantially all of the business assets of the assigning Party, and so long as\nsuch entity agrees in writing to be bound by the terms and conditions of this Agreement. Any attempted\nassignment or delegation in contravention of this clause shall be void and unenforceable. The foregoing\nnotwithstanding, Cubic may assign or otherwise transfer this Agreement to its parent company or any\nwholly-owned subsidiary thereof without Recipient’s consent.\nJohn D. Thomas\nJuly 11, 2017\nPage 18 of 19\n9.\nIf any material condition or provision contained herein is held to be invalid, void, or\nunenforceable by a final judgment of any court of competent jurisdiction, then the remaining provisions of\nthis Agreement shall remain in full force and effect and the unenforceable provision shall be deemed\nmodified to the limited extent required to permit its enforcement in a manner most closely representing the\nintention of the Parties as expressed herein.\n10.\nThe failure to exercise any right under this Agreement shall not be deemed to be a waiver of\nsuch right, and shall not affect the right to enforce each and every right hereof. The waiver of any breach\nof any term, provision, covenant, or condition herein contained shall not be deemed to be a waiver of any\n(a) subsequent breach of such term, provision, covenant, or condition or (b) other term, provision,\ncovenant, or condition.\n11.\nThis Agreement shall be subject to and construed in accordance with the laws of the State of\nCalifornia, excluding its conflicts of laws provisions. This Agreement shall be construed as having been\nprepared by both Parties. The Parties waive California Civil Code Section 1654, which states "in cases of\nuncertainty not removed by the preceding rules, the language of a contract should be interpreted most\nstrongly against the party who caused the uncertainty to exist."\n12.\nRecipient acknowledges that, due to the unique nature of Proprietary Information, there can be\nno adequate remedy at law for Recipient’s unauthorized use or disclosure of Proprietary Information in\nbreach of this Agreement and that such breach will cause immediate and irreparable harm to Cubic. Upon\nany such breach or any threat thereof by Recipient, Cubic shall be entitled to appropriate equitable relief\nfrom any court of competent jurisdiction (without being required to post a bond or other security) and shall\nbe indemnified by Recipient from any loss or harm (including, without limitation, attorneys’ fees) in\nconnection with any breach or enforcement of Recipient’s obligations under this Agreement or the\nunauthorized use or disclosure of any such Proprietary Information. Recipient consents to and submits to\nthe jurisdiction of any state or federal court located within the County of San Diego, California, if Cubic\nelects to bring such an action for equitable relief in any such court.\n13.\nThis Agreement may be executed in counterparts and transmitted by facsimile, each of which,\nwhen so executed and transmitted, shall be deemed to be an original, and all such counterparts together\nshall constitute one and the same document.\n14.\nThe obligations in this Agreement supplement and do not supersede the terms and conditions in\nthe Employee Inventions And Secrecy Agreement executed by Recipient when he was an employee of\nCubic. This Agreement may be modified only by a written amendment executed by duly authorized\nrepresentatives of each Party.\n(signatures provided on following page)\nJohn D. Thomas\nJuly 11, 2017\nPage 19 of 19\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized\nrepresentatives as of the day and year first above written.\nCUBIC CORPORATION\nJOHN D. THOMAS\nBy: /s/ James R. Edwards\nSigned:/s/ John D. Thomas\nPrint Name: James R. Edwards\nDate: July 11, 2017\nTitle: Sr. Vice President, General Counsel & Secretary\nDate: July 11, 2017	John D. Thomas\nJuly 11, 2017\nPage 16 of 19\nEXHIBIT 1\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (the “Agreement”) is dated as of October 1, 2018 and is made\nand entered into by and between CUBIC CORPORATION, a corporation organized and existing under the\nlaws of the State of Delaware having its principal offices at 9333 Balboa Avenue, San Diego, California\n92123, and JOHN D. THOMAS (“Recipient”).\n1. Recipient may be providing occasional consulting services to Cubic Corporation or its\nsubsidiaries (collectively “Cubic” or the “Company”), during the period of October 1, 2018 and September\n30, 2019. In providing such consulting services, Recipient may receive access to Proprietary Information\n(as defined below) from Cubic that Cubic deems to be confidential, proprietary, and/or business-sensitive.\nCubic will provide Recipient with access to such Proprietary Information for the sole purpose of learning\nabout and assisting with Cubic’s business and operations (hereinafter, the “Purpose”), subject to\nRecipient’s strict adherence to the obligations set forth below.\n2. "Proprietary Information" shall mean all forms and types of business, technical, financial,\neconomic, sales, marketing, or customer information of Cubic, including, without limitation, written,\nmagnetic or optical media, and oral and visual disclosures that Recipient receives or has access to, from\nthe Cubic network or any other source, as a result of the Purpose, which has not been previously disclosed\nto the general public by an authorized Company representative or customer, regardless of whether such\ninformation would be deemed a trade secret under applicable law. Proprietary Information shall be\ninterpreted broadly and includes, but is not limited to, business strategies and plans, financial information,\nprojections, pricing and cost information, proposals, lists of present of future customers, all information\nobtained from or about current or future customers, supplier lists and information, plans and results of\nresearch and development, reports, manuals, policies, evaluations, designs, specifications, blueprints,\ndrawings, patterns, compilations, formulas, programs, software, prototypes, methods, processes, devices,\nprocedures, special techniques of any kind peculiar to the Company’s operations, or other confidential or\nproprietary information or intellectual property related to the business, products, services, or plans of\nCompany, whether tangible or intangible, and whether stored or memorialized physically, electronically,\nphotographically, or in Recipient’s memory. This specifically includes all information the Company\nreceives from customers or other third parties that is not generally known to the public or is subject to a\nconfidentiality agreement. Proprietary Information does not include furnished information which:\n(1) At the time of disclosure, is in the public domain;\n(2) After disclosure, lawfully enters the public domain other than as a result of the act or\nomission of Recipient; or\n3) Recipient can conclusively demonstrate by written evidence that the same was\nlawfully known to it without restriction or was developed independently by it without direct or indirect\naccess to the Proprietary Information provided by Cubic.\n3. Recipient acknowledges that the Company is entitled to prevent the unauthorized use or\ndisclosure of its Proprietary Information. Unless expressly authorized by Cubic for its sole benefit,\nRecipient shall hold in the strictest confidence and not use, disclose, or allow to be\nJohn D. Thomas\nJuly 11, 2017\nPage 17 of 19\ndisclosed to any person, firm, or corporation, the Company’s Proprietary Information. Recipient shall take\nall reasonable measures necessary to maintain the secrecy of Proprietary Information.\n4. This Agreement shall become effective upon its execution by both Parties as of the date written\nabove (the “Effective Date”) and shall apply to all information furnished by Cubic to Recipient for a\nperiod of one year following the Effective Date (“the Term”). The Term may be extended by mutual\nwritten agreement between the Parties.\n5. Upon expiration or termination of this Agreement, or upon demand of Cubic at any time,\nRecipient shall, at Cubic’s option, (a) immediately return all Proprietary Information (including, but not\nlimited to, all copies, extracts, summaries, or digests thereof) to Cubic or (b) destroy all Proprietary\nInformation (including, but not limited to, all copies, extracts, summaries, or digests thereof) and provide\nCubic with written certification of such destruction. Notwithstanding the termination or expiration of this\nAgreement, this Agreement shall be coterminous and expire with any agreement to which it is or becomes\nappended, and the scope of this Agreement shall be augmented to permit the Parties to perform under the\nappended agreement.\n6. All rights in Proprietary Information are reserved by Cubic. Other than the rights expressly\ngranted herein, neither this Agreement, nor the disclosure of any Proprietary Information, shall be\nconstrued as expressing or implying any other rights, including but not limited to any rights of ownership\nof Proprietary Information, or rights to any invention, patent, copyright or other intellectual property right\nheretofore or hereafter owned, acquired, developed, or licensable by Cubic. All Proprietary Information\nshall remain the exclusive property of Cubic. This Agreement shall not be construed to recognize or create\nany formal business, agency, or employment relationship.\n7. Any notice under or in connection with this Agreement shall be in writing and delivered by\nreputable overnight mail equivalent carrier, facsimile, or first class mail. Such notice shall be deemed to\nhave been given when received by the Party to which the communication is directed at its address set forth\nbelow:\nTo Cubic: To Recipient:\nAttn: Law Department John D. Thomas\nCubic Corporation\n9333 Balboa Avenue\nSan Diego, CA 92123\nPhone: (858) 505-2499\nFax: (858) 505-1599\n8. Neither this Agreement, nor any rights or obligations hereunder, may be assigned, delegated, or\notherwise transferred by either Party without the express prior written consent of the other Party, except to\nan entity that succeeds to all or substantially all of the business assets of the assigning Party, and so long as\nsuch entity agrees in writing to be bound by the terms and conditions of this Agreement. Any attempted\nassignment or delegation in contravention of this clause shall be void and unenforceable. The foregoing\nnotwithstanding, Cubic may assign or otherwise transfer this Agreement to its parent company or any\nwholly-owned subsidiary thereof without Recipient’s consent.\nJohn D. Thomas\nJuly 11, 2017\nPage 18 of 19\n9. If any material condition or provision contained herein is held to be invalid, void, or\nunenforceable by a final judgment of any court of competent jurisdiction, then the remaining provisions of\nthis Agreement shall remain in full force and effect and the unenforceable provision shall be deemed\nmodified to the limited extent required to permit its enforcement in a manner most closely representing the\nintention of the Parties as expressed herein.\n10. The failure to exercise any right under this Agreement shall not be deemed to be a waiver of\nsuch right, and shall not affect the right to enforce each and every right hereof. The waiver of any breach\nof any term, provision, covenant, or condition herein contained shall not be deemed to be a waiver of any\n(a) subsequent breach of such term, provision, covenant, or condition or (b) other term, provision,\ncovenant, or condition.\n11. This Agreement shall be subject to and construed in accordance with the laws of the State of\nCalifornia, excluding its conflicts of laws provisions. This Agreement shall be construed as having been\nprepared by both Parties. The Parties waive California Civil Code Section 1654, which states "in cases of\nuncertainty not removed by the preceding rules, the language of a contract should be interpreted most\nstrongly against the party who caused the uncertainty to exist."\n12. Recipient acknowledges that, due to the unique nature of Proprietary Information, there can be\nno adequate remedy at law for Recipient’s unauthorized use or disclosure of Proprietary Information in\nbreach of this Agreement and that such breach will cause immediate and irreparable harm to Cubic. Upon\nany such breach or any threat thereof by Recipient, Cubic shall be entitled to appropriate equitable relief\nfrom any court of competent jurisdiction (without being required to post a bond or other security) and shall\nbe indemnified by Recipient from any loss or harm (including, without limitation, attorneys’ fees) in\nconnection with any breach or enforcement of Recipient’s obligations under this Agreement or the\nunauthorized use or disclosure of any such Proprietary Information. Recipient consents to and submits to\nthe jurisdiction of any state or federal court located within the County of San Diego, California, if Cubic\nelects to bring such an action for equitable relief in any such court.\n13. This Agreement may be executed in counterparts and transmitted by facsimile, each of which,\nwhen so executed and transmitted, shall be deemed to be an original, and all such counterparts together\nshall constitute one and the same document.\n14. The obligations in this Agreement supplement and do not supersede the terms and conditions in\nthe Employee Inventions And Secrecy Agreement executed by Recipient when he was an employee of\nCubic. This Agreement may be modified only by a written amendment executed by duly authorized\nrepresentatives of each Party.\n(signatures provided on following page)\nJohn D. Thomas\nJuly 11, 2017\nPage 19 of 19\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized\nrepresentatives as of the day and year first above written.\nCUBIC CORPORATION JOHN D. THOMAS\nBy: /s/ James R. Edwards Signed:/s/ John D. Thomas\nPrint Name: James R. Edwards Date: July 11, 2017\nTitle: Sr. Vice President, General Counsel & Secretary\nDate: July 11, 2017	John D. Thomas\nJuly 11, 2017\nPage 16 of 19\nEXHIBIT 1\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (the "Agreement") is dated as of October 1, 2018 and is made\nand entered into by and between CUBIC CORPORATION, a corporation organized and existing under the\nlaws of the State of Delaware having its principal offices at 9333 Balboa Avenue, San Diego, California\n92123, and JOHN D. THOMAS ("Recipient").\n1.\nRecipient may be providing occasional consulting services to Cubic Corporation or its\nsubsidiaries (collectively "Cubic" or the "Company"), during the period of October 1, 2018 and September\n30, 2019. In providing such consulting services, Recipient may receive access to Proprietary Information\n(as defined below) from Cubic that Cubic deems to be confidential, proprietary, and/or business-sensitive.\nCubic will provide Recipient with access to such Proprietary Information for the sole purpose of learning\nabout and assisting with Cubic's business and operations (hereinafter, the "Purpose"), subject to\nRecipient's strict adherence to the obligations set forth below.\n2.\n"Proprietary Information" shall mean all forms and types of business, technical, financial,\neconomic, sales, marketing, or customer information of Cubic, including, without limitation, written,\nmagnetic\nor\noptical\nmedia,\nand\noral\nand\nvisual\ndisclosures\nthat\nRecipient\nreceives\nor\nhas\naccess\nto,\nfrom\nthe Cubic network or any other source, as a result of the Purpose, which has not been previously disclosed\nto the general public by an authorized Company representative or customer, regardless of whether such\ninformation would be deemed a trade secret under applicable law. Proprietary Information shall be\ninterpreted broadly and includes, but is not limited to, business strategies and plans, financial information,\nprojections,\npricing\nand\ncost\ninformation,\nproposals,\nlists\nof\npresent\nof\nfuture\ncustomers,\nall\ninformation\nobtained from or about current or future customers, supplier lists and information, plans and results of\nresearch and development, reports, manuals, policies, evaluations, designs, specifications, blueprints,\ndrawings, patterns, compilations, formulas, programs, software, prototypes, methods, processes devices,\nprocedures, special techniques of any kind peculiar to the Company's operations, or other confidential or\nproprietary information or intellectual property related to the business, products, services, or plans of\nCompany, whether tangible or intangible, and whether stored or memorialized physically, electronically,\nphotographically, or in Recipient's memory. This specifically includes all information the Company\nreceives from customers or other third parties that is not generally known to the public or is subject to a\nconfidentiality agreement. Proprietary Information does not include furnished information which:\n(1) At the time of disclosure, is in the public domain;\n(2) After disclosure, lawfully enters the public domain other than as a result of the act or\nomission of Recipient; or\n(3)\nRecipient can conclusively demonstrate by written evidence that the same was\nlawfully known to it without restriction or was developed independently by it without direct or indirect\naccess to the Proprietary Information provided by Cubic.\n3.\nRecipient acknowledges that the Company is entitled to prevent the unauthorized use or\ndisclosure of its Proprietary Information. Unless expressly authorized by Cubic for its sole benefit,\nRecipient shall hold in the strictest confidence and not use, disclose, or allow to be\nJohn D. Thomas\nJuly 11, 2017\nPage 17 of 19\ndisclosed to any person, firm, or corporation, the Company's Proprietary Information. Recipient shall take\nall reasonable measures necessary to maintain the secrecy of Proprietary Information.\n4.\nThis Agreement shall become effective upon its execution by both Parties as of the date written\nabove (the "Effective Date") and shall apply to all information furnished by Cubic to Recipient for a\nperiod of one year following the Effective Date ("the Term"). The Term may be extended by mutual\nwritten agreement between the Parties.\n5.\nUpon expiration or termination of this Agreement, or upon demand of Cubic at any time,\nRecipient\nshall,\nat\nCubic's\noption,\n(a)\nimmediately\nreturn\nall\nProprietary\nInformation\n(including,\nbut\nnot\nlimited to, all copies, extracts, summaries, or digests thereof) to Cubic or (b) destroy all Proprietary\nInformation (including, but not limited to, all copies, extracts, summaries, or digests thereof) and provide\nCubic with written certification of such destruction. Notwithstanding the termination or expiration of this\nAgreement, this Agreement shall be coterminous and expire with any agreement to which it is or becomes\nappended, and the scope of this Agreement shall be augmented to permit the Parties to perform under the\nappended agreement.\n6.\nAll rights in Proprietary Information are reserved by Cubic. Other than the rights expressly\ngranted herein, neither this Agreement, nor the disclosure of any Proprietary Information, shall be\nconstrued as expressing or implying any other rights, including but not limited to any rights of ownership\nof Proprietary Information, or rights to any invention, patent, copyright or other intellectual property right\nheretofore or hereafter owned, acquired, developed, or licensable by Cubic. All Proprietary Information\nshall remain the exclusive property of Cubic. This Agreement shall not be construed to recognize or create\nany formal business, agency, or employment relationship.\n7.\nAny notice under or in connection with this Agreement shall be in writing and delivered by\nreputable overnight mail equivalent carrier, facsimile, or first class mail. Such notice shall be deemed to\nhave been given when received by the Party to which the communication is directed at its address set forth\nbelow:\nTo Cubic:\nTo Recipient:\nAttn: Law Department\nJohn D. Thomas\nCubic Corporation\n9333 Balboa Avenue\nSan Diego, CA 92123\nPhone: (858) 505-2499\nFax: (858) 505-1599\n8.\nNeither this Agreement, nor any rights or obligations hereunder, may be assigned, delegated, or\notherwise transferred by either Party without the express prior written consent of the other Party, except to\nan entity that succeeds to all or substantially all of the business assets of the assigning Party, and so long as\nsuch entity agrees in writing to be bound by the terms and conditions of this Agreement. Any attempted\nassignment or delegation in contravention of this clause shall be void and unenforceable. The foregoing\nnotwithstanding, Cubic may assign or otherwise transfer this Agreement to its parent company or any\nwholly-owned subsidiary thereof without Recipient's consent.\nJohn D. Thomas\nJuly 11, 2017\nPage 18 of 19\n9.\nIf any material condition or provision contained herein is held to be invalid, void, or\nunenforceable\nby\na\nfinal\njudgment\nof\nany\ncourt\nof\ncompetent\njurisdiction,\nthen\nthe\nremaining\nprovisions\nof\nthis Agreement shall remain in full force and effect and the unenforceable provision shall be deemed\nmodified to the limited extent required to permit its enforcement in a manner most closely representing the\nintention of the Parties as expressed herein.\n10.\nThe failure to exercise any right under this Agreement shall not be deemed to be a waiver\nof\nsuch right, and shall not affect the right to enforce each and every right hereof. The waiver of any breach\nof any term, provision covenant, or condition herein contained shall not be deemed to be a waiver of any\n(a) subsequent breach of such term, provision, covenant, or condition or (b) other term, provision,\ncovenant, or condition.\n11.\nThis Agreement shall be subject to and construed in accordance with the laws of the State of\nCalifornia, excluding its conflicts of laws provisions. This Agreement shall be construed as having been\nprepared by both Parties. The Parties waive California Civil Code Section 1654, which states "in cases of\nuncertainty not removed by the preceding rules, the language of a contract should be interpreted most\nstrongly against the party who caused the uncertainty to exist."\n12.\nRecipient acknowledges that, due to the unique nature of Proprietary Information, there can be\nno\nadequate\nremedy\nat\nlaw\nfor\nRecipient's\nunauthorized\nuse\nor\ndisclosure\nof\nProprietary\nInformation\nin\nbreach of this Agreement and that such breach will cause immediate and irreparable harm to Cubic. Upon\nany such breach or any threat thereof by Recipient, Cubic shall be entitled to appropriate equitable relief\nfrom any court of competent jurisdiction (without being required to post a bond or other security) and shall\nbe indemnified by Recipient from any loss or harm (including, without limitation, attorneys' fees) in\nconnection with any breach or enforcement of Recipient's obligations under this Agreement or the\nunauthorized use or disclosure of any such Proprietary Information. Recipient consents to and submits to\nthe jurisdiction of any state or federal court located within the County of San Diego, California, if Cubic\nelects to bring such an action for equitable relief in any such court.\n13.\nThis Agreement may be executed in counterparts and transmitted by facsimile, each of which,\nwhen so executed and transmitted, shall be deemed to be an original, and all such counterparts together\nshall constitute one and the same document.\n14.\nThe obligations in this Agreement supplement and do not supersede the terms and conditions in\nthe Employee Inventions And Secrecy Agreement executed by Recipient when he was an employee of\nCubic. This Agreement may be modified only by a written amendment executed by duly authorized\nrepresentatives of each Party.\n(signatures provided on following page)\nJohn D. Thomas\nJuly 11, 2017\nPage 19 of 19\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized\nrepresentatives as of the day and year first above written.\nCUBIC CORPORATION\nJOHN D. THOMAS\nBy: /s/ James R. Edwards\nSigned:/s/ John D. Thomas\nPrint Name: James R. Edwards\nDate: July 11, 2017\nTitle: Sr. Vice President, General Counsel & Secretary\nDate: July 11, 2017	John D. Thomas\nJuly 11, 2017\nPage 16 of 19\nEXHIBIT 1\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (the “Agreement”) is dated as of October 1, 2018 and is made\nand entered into by and between CUBIC CORPORATION, a corporation organized and existing under the\nlaws of the State of Delaware having its principal offices at 9333 Balboa Avenue, San Diego, California\n92123, and JOHN D. THOMAS (“Recipient”).\n1.\nRecipient may be providing occasional consulting services to Cubic Corporation or its\nsubsidiaries (collectively “Cubic” or the “Company”), during the period of October 1, 2018 and September\n30, 2019. In providing such consulting services, Recipient may receive access to Proprietary Information\n(as defined below) from Cubic that Cubic deems to be confidential, proprietary, and/or business-sensitive.\nCubic will provide Recipient with access to such Proprietary Information for the sole purpose of learning\nabout and assisting with Cubic’s business and operations (hereinafter, the “Purpose”), subject to\nRecipient’s strict adherence to the obligations set forth below.\n2.\n"Proprietary Information" shall mean all forms and types of business, technical, financial,\neconomic, sales, marketing, or customer information of Cubic, including, without limitation, written,\nmagnetic or optical media, and oral and visual disclosures that Recipient receives or has access to, from\nthe Cubic network or any other source, as a result of the Purpose, which has not been previously disclosed\nto the general public by an authorized Company representative or customer, regardless of whether such\ninformation would be deemed a trade secret under applicable law. Proprietary Information shall be\ninterpreted broadly and includes, but is not limited to, business strategies and plans, financial information,\nprojections, pricing and cost information, proposals, lists of present of future customers, all information\nobtained from or about current or future customers, supplier lists and information, plans and results of\nresearch and development, reports, manuals, policies, evaluations, designs, specifications, blueprints,\ndrawings, patterns, compilations, formulas, programs, software, prototypes, methods, processes, devices,\nprocedures, special techniques of any kind peculiar to the Company’s operations, or other confidential or\nproprietary information or intellectual property related to the business, products, services, or plans of\nCompany, whether tangible or intangible, and whether stored or memorialized physically, electronically,\nphotographically, or in Recipient’s memory. This specifically includes all information the Company\nreceives from customers or other third parties that is not generally known to the public or is subject to a\nconfidentiality agreement. Proprietary Information does not include furnished information which:\n(1) At the time of disclosure, is in the public domain;\n(2) After disclosure, lawfully enters the public domain other than as a result of the act or\nomission of Recipient; or\n(3) Recipient can conclusively demonstrate by written evidence that the same was\nlawfully known to it without restriction or was developed independently by it without direct or indirect\naccess to the Proprietary Information provided by Cubic.\n3.\nRecipient acknowledges that the Company is entitled to prevent the unauthorized use or\ndisclosure of its Proprietary Information. Unless expressly authorized by Cubic for its sole benefit,\nRecipient shall hold in the strictest confidence and not use, disclose, or allow to be\nJohn D. Thomas\nJuly 11, 2017\nPage 17 of 19\ndisclosed to any person, firm, or corporation, the Company’s Proprietary Information. Recipient shall take\nall reasonable measures necessary to maintain the secrecy of Proprietary Information.\n4.\nThis Agreement shall become effective upon its execution by both Parties as of the date written\nabove (the “Effective Date”) and shall apply to all information furnished by Cubic to Recipient for a\nperiod of one year following the Effective Date (“the Term”). The Term may be extended by mutual\nwritten agreement between the Parties.\n5.\nUpon expiration or termination of this Agreement, or upon demand of Cubic at any time,\nRecipient shall, at Cubic’s option, (a) immediately return all Proprietary Information (including, but not\nlimited to, all copies, extracts, summaries, or digests thereof) to Cubic or (b) destroy all Proprietary\nInformation (including, but not limited to, all copies, extracts, summaries, or digests thereof) and provide\nCubic with written certification of such destruction. Notwithstanding the termination or expiration of this\nAgreement, this Agreement shall be coterminous and expire with any agreement to which it is or becomes\nappended, and the scope of this Agreement shall be augmented to permit the Parties to perform under the\nappended agreement.\n6.\nAll rights in Proprietary Information are reserved by Cubic. Other than the rights expressly\ngranted herein, neither this Agreement, nor the disclosure of any Proprietary Information, shall be\nconstrued as expressing or implying any other rights, including but not limited to any rights of ownership\nof Proprietary Information, or rights to any invention, patent, copyright or other intellectual property right\nheretofore or hereafter owned, acquired, developed, or licensable by Cubic. All Proprietary Information\nshall remain the exclusive property of Cubic. This Agreement shall not be construed to recognize or create\nany formal business, agency, or employment relationship.\n7.\nAny notice under or in connection with this Agreement shall be in writing and delivered by\nreputable overnight mail equivalent carrier, facsimile, or first class mail. Such notice shall be deemed to\nhave been given when received by the Party to which the communication is directed at its address set forth\nbelow:\nTo Cubic:\nTo Recipient:\nAttn: Law Department\nJohn D. Thomas\nCubic Corporation\n9333 Balboa Avenue\nSan Diego, CA 92123\nPhone: (858) 505-2499\nFax: (858) 505-1599\n8.\nNeither this Agreement, nor any rights or obligations hereunder, may be assigned, delegated, or\notherwise transferred by either Party without the express prior written consent of the other Party, except to\nan entity that succeeds to all or substantially all of the business assets of the assigning Party, and so long as\nsuch entity agrees in writing to be bound by the terms and conditions of this Agreement. Any attempted\nassignment or delegation in contravention of this clause shall be void and unenforceable. The foregoing\nnotwithstanding, Cubic may assign or otherwise transfer this Agreement to its parent company or any\nwholly-owned subsidiary thereof without Recipient’s consent.\nJohn D. Thomas\nJuly 11, 2017\nPage 18 of 19\n9.\nIf any material condition or provision contained herein is held to be invalid, void, or\nunenforceable by a final judgment of any court of competent jurisdiction, then the remaining provisions of\nthis Agreement shall remain in full force and effect and the unenforceable provision shall be deemed\nmodified to the limited extent required to permit its enforcement in a manner most closely representing the\nintention of the Parties as expressed herein.\n10.\nThe failure to exercise any right under this Agreement shall not be deemed to be a waiver of\nsuch right, and shall not affect the right to enforce each and every right hereof. The waiver of any breach\nof any term, provision, covenant, or condition herein contained shall not be deemed to be a waiver of any\n(a) subsequent breach of such term, provision, covenant, or condition or (b) other term, provision,\ncovenant, or condition.\n11.\nThis Agreement shall be subject to and construed in accordance with the laws of the State of\nCalifornia, excluding its conflicts of laws provisions. This Agreement shall be construed as having been\nprepared by both Parties. The Parties waive California Civil Code Section 1654, which states "in cases of\nuncertainty not removed by the preceding rules, the language of a contract should be interpreted most\nstrongly against the party who caused the uncertainty to exist."\n12.\nRecipient acknowledges that, due to the unique nature of Proprietary Information, there can be\nno adequate remedy at law for Recipient’s unauthorized use or disclosure of Proprietary Information in\nbreach of this Agreement and that such breach will cause immediate and irreparable harm to Cubic. Upon\nany such breach or any threat thereof by Recipient, Cubic shall be entitled to appropriate equitable relief\nfrom any court of competent jurisdiction (without being required to post a bond or other security) and shall\nbe indemnified by Recipient from any loss or harm (including, without limitation, attorneys’ fees) in\nconnection with any breach or enforcement of Recipient’s obligations under this Agreement or the\nunauthorized use or disclosure of any such Proprietary Information. Recipient consents to and submits to\nthe jurisdiction of any state or federal court located within the County of San Diego, California, if Cubic\nelects to bring such an action for equitable relief in any such court.\n13.\nThis Agreement may be executed in counterparts and transmitted by facsimile, each of which,\nwhen so executed and transmitted, shall be deemed to be an original, and all such counterparts together\nshall constitute one and the same document.\n14.\nThe obligations in this Agreement supplement and do not supersede the terms and conditions in\nthe Employee Inventions And Secrecy Agreement executed by Recipient when he was an employee of\nCubic. This Agreement may be modified only by a written amendment executed by duly authorized\nrepresentatives of each Party.\n(signatures provided on following page)\nJohn D. Thomas\nJuly 11, 2017\nPage 19 of 19\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized\nrepresentatives as of the day and year first above written.\nCUBIC CORPORATION\nJOHN D. THOMAS\nBy: /s/ James R. Edwards\nSigned:/s/ John D. Thomas\nPrint Name: James R. Edwards\nDate: July 11, 2017\nTitle: Sr. Vice President, General Counsel & Secretary\nDate: July 11, 2017
+4fd03a6d34e6e06bc0b553aba1aff30f.pdf	effective_date jurisdiction party term	EX-10 .2 3 a182849_ex10-2 .htm FORM OF CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nExhibit 10.2\nFORM OF\nCONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nAgreement made December 28, 2018 between Flexsteel Industries, Inc., a corporation organized and existing under the laws of Minnesota, with\nits principal office located at 385 Bell Street, Dubuque, Iowa (“Flexsteel”) on behalf of itself and its subsidiaries and Jerald K. Dittmer\n(“Employee”) (collectively referred to as the “Parties”).\nRECITALS\nFlexsteel has employed Employee to devote his/her full time, attention, and energies to the business of Flexsteel and to use his/her best efforts,\nskill, and abilities in performing the specific duties of such employment, and Employee shall not, without prior written consent of Flexsteel,\neither directly or indirectly, engage in any other occupation, profession or business.\nAs a result of the employment by Flexsteel, Employee will have access to information not generally known to the general public or in the\nindustry(s) in which Flexsteel is or may become engaged about Flexsteel’s business/functional strategies, product design and development),\nprocesses, customers, services, suppliers, pricing policies, marketing strategies and related matters. In addition, Flexsteel may provide training to\nEmployee in relation to these areas. It is the desire of Flexsteel and Employee that all such training and information be and remain confidential.\nIn consideration of the matters described above, and of the mutual benefits and obligations set forth in this Agreement, the Parties agree as\nfollows:\nSECTION ONE: CONFIDENTIALITY\nA. Nondisclosure. Employee shall not, during or after the term of this Agreement, directly or indirectly, use, disseminate, or disclose to\nany person (including other employees of Flexsteel not having a need to know or authority to know), firm or other business entity for\nany purpose whatsoever, any information not generally known in the industry in which Flexsteel is or may be engaged which was\ndisclosed to Employee or known by Employee as a result of or through his/her employment by Flexsteel. This includes information\nregarding Flexsteel’s employee’s products, processes, customers, services, suppliers, pricing policies and related matters, and also\nincludes information relating to research, development, inventions, manufacture, purchasing, accounting, engineering, marketing,\nmerchandising, and selling.\nB. Confidential Relationship. Employee shall hold in a fiduciary capacity for the benefit of Flexsteel all information in paragraph A\nabove, along with any and all inventions, discoveries, concepts, ideas, improvements, ideas, improvements or know-how, discovered or\ndeveloped by Employee, solely or jointly with other employees, during the term of this Agreement, which may be directly or indirectly\nuseful in or related to the business of Flexsteel or its subsidiaries, or may be within the scope of its or their research or development\nwork.\nC. Customer Lists. Employee shall, at the time of and during employment, furnish a complete list of all the correct names and places of\nbusinesses of all its customers, immediately notify Flexsteel of the name and address of any new customer, and report all changes in\nlocation of old customers, so that upon the termination of employment, Flexsteel will have a complete list of the correct names and\naddresses of customer with whom Employee has dealt.\nD. Return of Documents. To protect the interests of Flexsteel, Employee agrees that, during or after the termination of Employee’s\nemployment by Flexsteel, all documents, records, notebooks, and similar repositories containing such information described in\nparagraphs A, B and C above, including copies of such items, then in Employee’s possession or work area, whether prepared by\nEmployee or others, are the property of Flexsteel and shall be returned to Flexsteel upon Flexsteel’s request.\nSECTION TWO: NON-DISPARAGEMENT\nThe Employee agrees and covenants that the Employee will not at any time make, publish, or communicate to any person or entity or in any\npublic forum any defamatory or disparaging remarks, comments, or statements concerning Flexsteel or its businesses, or its employees, officers\nand existing and prospective customers, suppliers and other associated third parties.\nThis section does not, in any way, restrict or impede the Employee from exercising protected rights to the extent that such rights cannot be\nwaived by agreement, including but not limited to Employee’s section 7 rights under the NLRA, or from complying with any applicable law or\nagency, provided that such compliance does not exceed that required by the law, regulation or order. The employee shall promptly provide such\nwritten notices of such order to Flexsteel’s legal department.\nSECTION THREE: NONCOMPETITION\nA. Employee Conduct with Respect to Competitors. During the term of Employee’s employment by Flexsteel and for twelve (12)\nmonths after termination of such employment, Employee agrees that Employee will not, without the prior written consent of Flexsteel,\ndirectly or indirectly, whether as an employee, officer, director, independent contractor, consultant, stockholder, partner, or otherwise,\nengage in or assist others to engage in or have any interest in any business which competes with Flexsteel in any geographic area in\nwhich Flexsteel markets or has marketed its products during the year preceding termination.\nB. Solicitation of Employees. Employee agrees that during the term of Employee’s employment and for twelve (12) months after the\ntermination of such employment, Employee will not induce or attempt to induce any person who is an employee of Flexsteel to leave\nthe employ of Flexsteel and engage in any business which competes with Flexsteel.\nC. Maximum Restrictions of Time, Scope, and Geographic Area Intended. The Parties agree and acknowledge that the time, scope and\ngeographic area and other provisions of this Agreement are reasonable under these circumstances. Employee further agrees that if,\ndespite the express agreement of the parties to this Agreement, a court is expressly authorized to modify any unenforceable provision of\nthis Agreement in lieu of severing the unenforceable provision from this Agreement in its entirety, whether by rewriting the offending\nprovision, or deleting any or all of the offending provision, adding additional language to this Agreement, or by making any other\nmodifications as it deems warranted to carry out the intent and agreement of the Parties as embodied herein to the maximum extent as\npermitted by law. The Parties expressly agree that this Agreement as so modified by the court shall be binding upon and enforceable\nagainst each of them.\n2\nSECTION FOUR: BREACH OF AGREEMENT\nA. Remedies. Employee agrees that violating Section One of this Agreement at any time, including during litigation, will produce damages\nand injury to Flexsteel. In the event of the breach or, or threatened breach by Employee of Section One of this Agreement, Flexsteel\nshall be entitled to seek injunctive relief, both preliminary and permanent, enjoining and restraining such breach or threatened breach.\nSuch remedies shall be in addition to all other remedies available to Flexsteel in law or in equity, including by not limited to Flexsteel’s\nright to recover from Employee any and all damages that may be sustained as a result of Employee’s breach.\nB. Agreement Survives Termination. All rights of the Parties pursuant to this Agreement shall survive any termination.\nC. Choice of Law. The validity, interpretation, and performance of this Agreement shall be controlled and construed under the laws of\nIowa.\nD. Attorney’s Fees. If an attorney shall be retained to interpret or enforce the provisions of this Agreement, the prevailing party shall be\nentitled to reasonable attorney fees, including any such fees set by the trial or appellate court upon trial or appeal.\nSECTION FIVE: MISCELLANEOUS\nA. Entire Agreement. This Agreement contains all the understandings and representations between Employee and Flexsteel pertaining to\nthe subject matter hereof and supersedes all prior and contemporaneous understandings, agreements and representations, both oral and\nwritten, with respect to such subject matter.\nB. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken\ntogether shall constitute one and the same instrument. Delivery of an executed counterpart’s signature page of this Agreement by\nfacsimile, email in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and\npictorial appearance of a document, has the same effect as delivery of an executed original of this Agreement.\nNothing in this Agreement shall be construed to in any way terminate, supersede, undermine, or otherwise modify the “at-will”\nstatus of the employment relationship between Flexsteel and the Employee, pursuant to which either Flexsteel or the Employee may\nterminate the employment relationship at any time, with or without cause, and with or without notice.\nEMPLOYEE\nFLEXSTEEL INDUSTRIES, INC.\nBy:\nBy:\nName: Jerald K. Dittmer\nName: Thomas M. Levine\nTitle: President/CEO\nTitle: Chair of the Board\nDate: December 28, 2018\nDate: December 28, 2018\n3	EX-10.2 3 a182849_ex10-2.htm FORM OF CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nExhibit 10.2\nFORM OF\nCONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nAgreement made December 28, 2018 between Flexsteel Industries, Inc., a corporation organized and existing under the laws of Minnesota, with\nits principal office located at 385 Bell Street, Dubuque, Iowa (“Flexsteel”) on behalf of itself and its subsidiaries and Jerald K. Dittmer\n(“Employee”) (collectively referred to as the “Parties™).\nRECITALS\nFlexsteel has employed Employee to devote his/her full time, attention, and energies to the business of Flexsteel and to use his/her best efforts,\nskill, and abilities in performing the specific duties of such employment, and Employee shall not, without prior written consent of Flexsteel,\neither directly or indirectly, engage in any other occupation, profession or business.\nAs a result of the employment by Flexsteel, Employee will have access to information not generally known to the general public or in the\nindustry(s) in which Flexsteel is or may become engaged about Flexsteel’s business/functional strategies, product design and development),\nprocesses, customers, services, suppliers, pricing policies, marketing strategies and related matters. In addition, Flexsteel may provide training to\nEmployee in relation to these areas. It is the desire of Flexsteel and Employee that all such training and information be and remain confidential.\nIn consideration of the matters described above, and of the mutual benefits and obligations set forth in this Agreement, the Parties agree as\nfollows:\nSECTION ONE: CONFIDENTIALITY\nA. Nondisclosure. Employee shall not, during or after the term of this Agreement, directly or indirectly, use, disseminate, or disclose to\nany person (including other employees of Flexsteel not having a need to know or authority to know), firm or other business entity for\nany purpose whatsoever, any information not generally known in the industry in which Flexsteel is or may be engaged which was\ndisclosed to Employee or known by Employee as a result of or through his/her employment by Flexsteel. This includes information\nregarding Flexsteel’s employee’s products, processes, customers, services, suppliers, pricing policies and related matters, and also\nincludes information relating to research, development, inventions, manufacture, purchasing, accounting, engineering, marketing,\nmerchandising, and selling.\nB. Confidential Relationship. Employee shall hold in a fiduciary capacity for the benefit of Flexsteel all information in paragraph A\nabove, along with any and all inventions, discoveries, concepts, ideas, improvements, ideas, improvements or know-how, discovered or\ndeveloped by Employee, solely or jointly with other employees, during the term of this Agreement, which may be directly or indirectly\nuseful in or related to the business of Flexsteel or its subsidiaries, or may be within the scope of its or their research or development\nwork.\nC. Customer Lists. Employee shall, at the time of and during employment, furnish a complete list of all the correct names and places of\nbusinesses of all its customers, immediately notify Flexsteel of the name and address of any new customer, and report all changes in\nlocation of old customers, so that upon the termination of employment, Flexsteel will have a complete list of the correct names and\naddresses of customer with whom Employee has dealt.\n \nD. Return of Documents. To protect the interests of Flexsteel, Employee agrees that, during or after the termination of Employee’s\nemployment by Flexsteel, all documents, records, notebooks, and similar repositories containing such information described in\nparagraphs A, B and C above, including copies of such items, then in Employee’s possession or work area, whether prepared by\nEmployee or others, are the property of Flexsteel and shall be returned to Flexsteel upon Flexsteel’s request.\nSECTION TWO: NON-DISPARAGEMENT\nThe Employee agrees and covenants that the Employee will not at any time make, publish, or communicate to any person or entity or in any\npublic forum any defamatory or disparaging remarks, comments, or statements concerning Flexsteel or its businesses, or its employees, officers\nand existing and prospective customers, suppliers and other associated third parties.\nThis section does not, in any way, restrict or impede the Employee from exercising protected rights to the extent that such rights cannot be\nwaived by agreement, including but not limited to Employee’s section 7 rights under the NLRA, or from complying with any applicable law or\nagency, provided that such compliance does not exceed that required by the law, regulation or order. The employee shall promptly provide such\nwritten notices of such order to Flexsteel’s legal department.\nSECTION THREE: NONCOMPETITION\nmonths after termination of such employment, Employee agrees that Employee will not, without the prior written consent of Flexsteel,\ndirectly or indirectly, whether as an employee, officer, director, independent contractor, consultant, stockholder, partner, or otherwise,\nengage in or assist others to engage in or have any interest in any business which competes with Flexsteel in any geographic area in\nwhich Flexsteel markets or has marketed its products during the year preceding termination.\nB. Solicitation of Employees. Employee agrees that during the term of Employee’s employment and for twelve (12) months after the\ntermination of such employment, Employee will not induce or attempt to induce any person who is an employee of Flexsteel to leave\nthe employ of Flexsteel and engage in any business which competes with Flexsteel.\ngeographic area and other provisions of this Agreement are reasonable under these circumstances. Employee further agrees that if,\ndespite the express agreement of the parties to this Agreement, a court is expressly authorized to modify any unenforceable provision of\nthis Agreement in lieu of severing the unenforceable provision from this Agreement in its entirety, whether by rewriting the offending\nprovision, or deleting any or all of the offending provision, adding additional language to this Agreement, or by making any other\nmodifications as it deems warranted to carry out the intent and agreement of the Parties as embodied herein to the maximum extent as\npermitted by law. The Parties expressly agree that this Agreement as so modified by the court shall be binding upon and enforceable\nagainst each of them.\n \n>\nSECTION FOUR: BREACH OF AGREEMENT\nA. Remedies. Employee agrees that violating Section One of this Agreement at any time, including during litigation, will produce damages\nand injury to Flexsteel. In the event of the breach or, or threatened breach by Employee of Section One of this Agreement, Flexsteel\nshall be entitled to seek injunctive relief, both preliminary and permanent, enjoining and restraining such breach or threatened breach.\nSuch remedies shall be in addition to all other remedies available to Flexsteel in law or in equity, including by not limited to Flexsteel’s\nright to recover from Employee any and all damages that may be sustained as a result of Employee’s breach.\nB. Agreement Survives Termination. All rights of the Parties pursuant to this Agreement shall survive any termination.\nC. Choice of Law. The validity, interpretation, and performance of this Agreement shall be controlled and construed under the laws of\nIowa.\nD. Attorney’s Fees. If an attorney shall be retained to interpret or enforce the provisions of this Agreement, the prevailing party shall be\nentitled to reasonable attorney fees, including any such fees set by the trial or appellate court upon trial or appeal.\n \nSECTION FIVE: MISCELLANEOUS\nA. Entire Agreement. This Agreement contains all the understandings and representations between Employee and Flexsteel pertaining to\nthe subject matter hereof and supersedes all prior and contemporaneous understandings, agreements and representations, both oral and\nwritten, with respect to such subject matter.\nB. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken\ntogether shall constitute one and the same instrument. Delivery of an executed counterpart’s signature page of this Agreement by\nfacsimile, email in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and\npictorial appearance of a document, has the same effect as delivery of an executed original of this Agreement.\nNothing in this Agreement shall be construed to in any way terminate, supersede, undermine, or otherwise modify the “at-will”\nstatus of the employment relationship between Flexsteel and the Employee, pursuant to which either Flexsteel or the Employee may\nterminate the employment relationship at any time, with or without cause, and with or without notice.\nEMPLOYEE FLEXSTEEL INDUSTRIES, INC.\nBy: By:\nName: Jerald K. Dittmer Name: Thomas M. Levine\nTitle: President/CEO Title: Chair of the Board\nDate: December 28, 2018 Date: December 28, 2018\n	EX-10.2 3 a182849_ex10-2.htm FORM OF CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nExhibit 10.2\nFORM OF\nCONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nAgreement made December 28, 2018 between Flexsteel Industries, Inc., a corporation organized and existing under the laws of Minnesota, with\nits principal office located at 385 Bell Street, Dubuque, Iowa ("Flexsteel") on behalf of itself and its subsidiaries and Jerald K. Dittmer\n("Employee") (collectively referred to as the "Parties").\nRECITALS\nFlexsteel has employed Employee to devote his/her full time, attention, and energies to the business of Flexsteel and to use his/her best efforts,\nskill, and abilities in performing the specific duties of such employment, and Employee shall not, without prior written consent of Flexsteel,\neither directly or indirectly, engage in any other occupation, profession or business.\nAs a result of the employment by Flexsteel, Employee will have access to information not generally known to the general public or in\nthe\nindustry(s) in which Flexsteel is or may become engaged about Flexsteel's business/functional strategies, product design and development),\nprocesses, customers, services, suppliers, pricing policies, marketing strategies and related matters. In addition, Flexsteel may provide training to\nEmployee in relation to these areas. It is the desire of Flexsteel and Employee that all such training and information be and remain confidential.\nIn consideration of the matters described above, and of the mutual benefits and obligations set forth in this Agreement, the Parties agree as\nfollows:\nSECTION ONE: CONFIDENTIALITY\nA. Nondisclosure. Employee shall not, during or after the term of this Agreement, directly or indirectly, use, disseminate, or disclose to\nany person (including other employees of Flexsteel not having a need to know or authority to know), firm or other business entity for\nany purpose whatsoever, any information not generally known in the industry in which Flexsteel is or may be engaged which was\ndisclosed to Employee or known by Employee as a result of or through his/her employment by Flexsteel. This includes information\nregarding Flexsteel's employee's products, processes, customers, services, suppliers, pricing policies and related matters, and also\nincludes information relating to research, development, inventions, manufacture, purchasing, accounting, engineering, marketing,\nmerchandising, and selling.\nB. Confidential Relationship. Employee shall hold in a fiduciary capacity for the benefit of Flexsteel all information in paragraph A\nabove, along with any and all inventions, discoveries, concepts, ideas, improvements, ideas, improvements or know-how, discovered or\ndeveloped by Employee, solely or jointly with other employees, during the term of this Agreement, which may be directly or indirectly\nuseful in or related to the business of Flexsteel or its subsidiaries, or may be within the scope of its or their research or development\nwork.\nC.\nCustomer Lists. Employee shall, at the time of and during employment, furnish a complete list of all the correct names and places of\nbusinesses of all its customers, immediately notify Flexsteel of the name and address of any new customer, and report all changes in\nlocation of old customers, so that upon the termination of employment, Flexsteel will have a complete list of the correct names and\naddresses of customer with whom Employee has dealt.\nD.\nReturn of Documents. To protect the interests of Flexsteel, Employee agrees that, during or after the termination of Employee's\nemployment by Flexsteel, all documents, records, notebooks, and similar repositories containing such information described in\nparagraphs A, B and C above, including copies of such items, then in Employee's possession or work area, whether prepared by\nEmployee or others, are the property of Flexsteel and shall be returned to Flexsteel upon Flexsteel's request.\nSECTION TWO: NON-DISPARAGEMENT\nThe Employee agrees and covenants that the Employee will not at any time make, publish, or communicate to any person or entity or in any\npublic forum any defamatory or disparaging remarks, comments, or statements concerning Flexsteel or its businesses, or its employees, officers\nand existing and prospective customers, suppliers and other associated third parties.\nThis section does not, in any way, restrict or impede the Employee from exercising protected rights to the extent that such rights cannot be\nwaived by agreement, including but not limited to Employee's section 7 rights under the NLRA, or from complying with any applicable law or\nagency, provided that such compliance does not exceed that required by the law, regulation or order. The employee shall promptly provide such\nwritten notices of such order to Flexsteel's legal department.\nSECTION THREE: NONCOMPETITION\nA.\nEmployee Conduct with Respect to Competitors. During the term of Employee's employment by Flexsteel and for twelve (12)\nmonths after termination of such employment, Employee agrees that Employee will not, without the prior written consent of Flexsteel,\ndirectly or indirectly, whether as an employee, officer, director, independent contractor, consultant, stockholder, partner, or otherwise,\nengage in or assist others to engage in or have any interest in any business which competes with Flexsteel in any geographic area in\nwhich Flexsteel markets or has marketed its products during the year preceding termination.\nB.\nSolicitation of Employees. Employee agrees that during the term of Employee's employment and for twelve (12) months after the\ntermination of such employment, Employee will not induce or attempt to induce any person who is an employee of Flexsteel to leave\nthe employ of Flexsteel and engage in any business which competes with Flexsteel.\nC.\nMaximum Restrictions of Time, Scope, and Geographic Area Intended. The Parties agree and acknowledge that the time, scope and\ngeographic\narea\nand\nother\nprovisions\nof\nthis\nAgreement\nare\nreasonable\nunder\nthese\ncircumstances.\nEmployee\nfurther\nagrees\nthat\nif,\ndespite the express agreement of the parties to this Agreement, a court is expressly authorized to modify any unenforceable provision of\nthis Agreement in lieu of severing the unenforceable provision from this Agreement in its entirety, whether by rewriting the offending\nprovision, or deleting any or all of the offending provision, adding additional language to this Agreement, or by making any other\nmodifications as it deems warranted to carry out the intent and agreement of the Parties as embodied herein to the maximum extent as\npermitted by law. The Parties expressly agree that this Agreement as so modified by the court shall be binding upon and enforceable\nagainst each of them.\n2\nSECTION FOUR: BREACH OF AGREEMENT\nA.\nRemedies. Employee agrees that violating Section One of this Agreement at any time, including during litigation, will produce damages\nand injury to Flexsteel. In the event of the breach or, or threatened breach by Employee of Section One of this Agreement, Flexsteel\nshall\nbe entitled to seek injunctive relief, both preliminary and permanent, enjoining and restraining such breach or threatened breach.\nSuch remedies shall be in addition to all other remedies available to Flexsteel in law or in equity, including by not limited to Flexsteel's\nright to recover from Employee any and all damages that may be sustained as a result of Employee's breach.\nB. Agreement Survives Termination. All rights of the Parties pursuant to this Agreement shall survive any termination.\nC. Choice of Law. The validity, interpretation, and performance of this Agreement shall be controlled and construed under the laws of\nIowa.\nD.\nAttorney's Fees. If an attorney shall be retained to interpret or enforce the provisions of this Agreement, the prevailing party shall be\nentitled to reasonable attorney fees, including any such fees set by the trial or appellate court upon trial or appeal.\nSECTION FIVE: MISCELLANEOUS\nA. Entire Agreement. This Agreement contains all the understandings and representations between Employee and Flexsteel pertaining to\nthe subject matter hereof and supersedes all prior and contemporaneous understandings, agreements and representations, both oral and\nwritten, with respect to such subject matter.\nB. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken\ntogether shall constitute one and the same instrument. Delivery of an executed counterpart's signature page of this Agreement by\nfacsimile, email in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and\npictorial appearance of a document, has the same effect as delivery of an executed original of this Agreement.\nNothing in this Agreement shall be construed to in any way terminate, supersede, undermine, or otherwise modify the "at-will"\nstatus of the employment relationship between Flexsteel and the Employee, pursuant to which either Flexsteel or the Employee may\nterminate the employment relationship at any time, with or without cause, and with or without notice.\nEMPLOYEE\nFLEXSTEEL INDUSTRIES, INC.\nBy:\nBy:\nName: Jerald K. Dittmer\nName: Thomas M. Levine\nTitle: President/CEO\nTitle: Chair of the Board\nDate: December 28, 2018\nDate: December 28, 2018\n3	EX-10 .2 3 a182849_ex10-2 .htm FORM OF CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nExhibit 10.2\nFORM OF\nCONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nAgreement made December 28, 2018 between Flexsteel Industries, Inc., a corporation organized and existing under the laws of Minnesota, with\nits principal office located at 385 Bell Street, Dubuque, Iowa (“Flexsteel”) on behalf of itself and its subsidiaries and Jerald K. Dittmer\n(“Employee”) (collectively referred to as the “Parties”).\nRECITALS\nFlexsteel has employed Employee to devote his/her full time, attention, and energies to the business of Flexsteel and to use his/her best efforts,\nskill, and abilities in performing the specific duties of such employment, and Employee shall not, without prior written consent of Flexsteel,\neither directly or indirectly, engage in any other occupation, profession or business.\nAs a result of the employment by Flexsteel, Employee will have access to information not generally known to the general public or in the\nindustry(s) in which Flexsteel is or may become engaged about Flexsteel’s business/functional strategies, product design and development),\nprocesses, customers, services, suppliers, pricing policies, marketing strategies and related matters. In addition, Flexsteel may provide training to\nEmployee in relation to these areas. It is the desire of Flexsteel and Employee that all such training and information be and remain confidential.\nIn consideration of the matters described above, and of the mutual benefits and obligations set forth in this Agreement, the Parties agree as\nfollows:\nSECTION ONE: CONFIDENTIALITY\nA. Nondisclosure. Employee shall not, during or after the term of this Agreement, directly or indirectly, use, disseminate, or disclose to\nany person (including other employees of Flexsteel not having a need to know or authority to know), firm or other business entity for\nany purpose whatsoever, any information not generally known in the industry in which Flexsteel is or may be engaged which was\ndisclosed to Employee or known by Employee as a result of or through his/her employment by Flexsteel. This includes information\nregarding Flexsteel’s employee’s products, processes, customers, services, suppliers, pricing policies and related matters, and also\nincludes information relating to research, development, inventions, manufacture, purchasing, accounting, engineering, marketing,\nmerchandising, and selling.\nB. Confidential Relationship. Employee shall hold in a fiduciary capacity for the benefit of Flexsteel all information in paragraph A\nabove, along with any and all inventions, discoveries, concepts, ideas, improvements, ideas, improvements or know-how, discovered or\ndeveloped by Employee, solely or jointly with other employees, during the term of this Agreement, which may be directly or indirectly\nuseful in or related to the business of Flexsteel or its subsidiaries, or may be within the scope of its or their research or development\nwork.\nC. Customer Lists. Employee shall, at the time of and during employment, furnish a complete list of all the correct names and places of\nbusinesses of all its customers, immediately notify Flexsteel of the name and address of any new customer, and report all changes in\nlocation of old customers, so that upon the termination of employment, Flexsteel will have a complete list of the correct names and\naddresses of customer with whom Employee has dealt.\nD. Return of Documents. To protect the interests of Flexsteel, Employee agrees that, during or after the termination of Employee’s\nemployment by Flexsteel, all documents, records, notebooks, and similar repositories containing such information described in\nparagraphs A, B and C above, including copies of such items, then in Employee’s possession or work area, whether prepared by\nEmployee or others, are the property of Flexsteel and shall be returned to Flexsteel upon Flexsteel’s request.\nSECTION TWO: NON-DISPARAGEMENT\nThe Employee agrees and covenants that the Employee will not at any time make, publish, or communicate to any person or entity or in any\npublic forum any defamatory or disparaging remarks, comments, or statements concerning Flexsteel or its businesses, or its employees, officers\nand existing and prospective customers, suppliers and other associated third parties.\nThis section does not, in any way, restrict or impede the Employee from exercising protected rights to the extent that such rights cannot be\nwaived by agreement, including but not limited to Employee’s section 7 rights under the NLRA, or from complying with any applicable law or\nagency, provided that such compliance does not exceed that required by the law, regulation or order. The employee shall promptly provide such\nwritten notices of such order to Flexsteel’s legal department.\nSECTION THREE: NONCOMPETITION\nA. Employee Conduct with Respect to Competitors. During the term of Employee’s employment by Flexsteel and for twelve (12)\nmonths after termination of such employment, Employee agrees that Employee will not, without the prior written consent of Flexsteel,\ndirectly or indirectly, whether as an employee, officer, director, independent contractor, consultant, stockholder, partner, or otherwise,\nengage in or assist others to engage in or have any interest in any business which competes with Flexsteel in any geographic area in\nwhich Flexsteel markets or has marketed its products during the year preceding termination.\nB. Solicitation of Employees. Employee agrees that during the term of Employee’s employment and for twelve (12) months after the\ntermination of such employment, Employee will not induce or attempt to induce any person who is an employee of Flexsteel to leave\nthe employ of Flexsteel and engage in any business which competes with Flexsteel.\nC. Maximum Restrictions of Time, Scope, and Geographic Area Intended. The Parties agree and acknowledge that the time, scope and\ngeographic area and other provisions of this Agreement are reasonable under these circumstances. Employee further agrees that if,\ndespite the express agreement of the parties to this Agreement, a court is expressly authorized to modify any unenforceable provision of\nthis Agreement in lieu of severing the unenforceable provision from this Agreement in its entirety, whether by rewriting the offending\nprovision, or deleting any or all of the offending provision, adding additional language to this Agreement, or by making any other\nmodifications as it deems warranted to carry out the intent and agreement of the Parties as embodied herein to the maximum extent as\npermitted by law. The Parties expressly agree that this Agreement as so modified by the court shall be binding upon and enforceable\nagainst each of them.\n2\nSECTION FOUR: BREACH OF AGREEMENT\nA. Remedies. Employee agrees that violating Section One of this Agreement at any time, including during litigation, will produce damages\nand injury to Flexsteel. In the event of the breach or, or threatened breach by Employee of Section One of this Agreement, Flexsteel\nshall be entitled to seek injunctive relief, both preliminary and permanent, enjoining and restraining such breach or threatened breach.\nSuch remedies shall be in addition to all other remedies available to Flexsteel in law or in equity, including by not limited to Flexsteel’s\nright to recover from Employee any and all damages that may be sustained as a result of Employee’s breach.\nB. Agreement Survives Termination. All rights of the Parties pursuant to this Agreement shall survive any termination.\nC. Choice of Law. The validity, interpretation, and performance of this Agreement shall be controlled and construed under the laws of\nIowa.\nD. Attorney’s Fees. If an attorney shall be retained to interpret or enforce the provisions of this Agreement, the prevailing party shall be\nentitled to reasonable attorney fees, including any such fees set by the trial or appellate court upon trial or appeal.\nSECTION FIVE: MISCELLANEOUS\nA. Entire Agreement. This Agreement contains all the understandings and representations between Employee and Flexsteel pertaining to\nthe subject matter hereof and supersedes all prior and contemporaneous understandings, agreements and representations, both oral and\nwritten, with respect to such subject matter.\nB. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken\ntogether shall constitute one and the same instrument. Delivery of an executed counterpart’s signature page of this Agreement by\nfacsimile, email in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and\npictorial appearance of a document, has the same effect as delivery of an executed original of this Agreement.\nNothing in this Agreement shall be construed to in any way terminate, supersede, undermine, or otherwise modify the “at-will”\nstatus of the employment relationship between Flexsteel and the Employee, pursuant to which either Flexsteel or the Employee may\nterminate the employment relationship at any time, with or without cause, and with or without notice.\nEMPLOYEE\nFLEXSTEEL INDUSTRIES, INC.\nBy:\nBy:\nName: Jerald K. Dittmer\nName: Thomas M. Levine\nTitle: President/CEO\nTitle: Chair of the Board\nDate: December 28, 2018\nDate: December 28, 2018\n3
+5089dc0cb013e46c3f9e21a2531504ed.pdf	effective_date jurisdiction party term	EX-99.10 14 d356019dex9910.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit 99.10\nLOGO\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (this “Agreement”) is dated as of March 31, 2012 between Integrated\nDevice Technology, Inc., a Delaware corporation (“IDT”), and PLX Technology, Inc., a Delaware corporation (“PLX”).\nIDT and PLX may work together to evaluate a possible strategic transaction involving IDT and PLX (“Proposed\nTransaction”). As used in this Agreement, the party disclosing Confidential Information, as defined below, is the\n“Disclosing Party” and the party receiving the Confidential Information is the “Recipient”.\n1. During the evaluation of the Proposed Transaction, the Recipient agrees to treat confidentially information that is\nfurnished by either the Disclosing Party or its Representatives (as defined below) to the Recipient or the\nRecipient’s subsidiaries or its or their respective directors, officers, partners, employees, agents, representatives,\nincluding, without limitation, financial advisors, counsel, accountants, experts, and consultants (collectively,\n“Representatives”) in connection with the Proposed Transaction, together with notes, analyses, compilations,\nstudies or other documents prepared by the Recipient or by its Representatives to the extent they contain or\notherwise reflect such information or the Disclosing Party’s review of, or interest in, the Recipient (“Confidential\nInformation”).\n2. The Confidential Information will be used solely for the purposes of evaluating the Proposed Transaction,\nprovided, however, that the Recipient may disclose any Confidential Information to its Representatives who need\nto know such information for the purpose of evaluating the Proposed Transaction. Prior to disclosing the\nConfidential Information to any Representative, however, the Recipient shall inform the Representative of the\nconfidential nature of such information and undertake reasonable efforts to cause them to treat such information on\na confidential basis. The Recipient shall be responsible for the breach of this Agreement by its Representatives that\nhave not separately signed a non-disclosure agreement with the Disclosing Party or any of its Representatives, and\nshall take all reasonable measures to restrain its Representatives from unauthorized disclosure of the Confidential\nInformation. The Disclosing Party and its Representatives shall otherwise have no recourse against any of the\nRecipient’s Representatives that have not separately signed a non-disclosure agreement with the Disclosing Party\nor any of its Representatives.\n3. The public disclosure of the Proposed Transaction could have a material adverse effect on IDT’s and PLX’s\nbusinesses if, for any reason, a definitive agreement with respect to such transaction is not consummated.\nAccordingly, each party agrees that without the prior written consent of the other, it will not, and it will direct its\nRepresentatives not to, disclose to any person, other than its Representatives, either the fact that discussions or\nnegotiations are taking place concerning the Proposed Transaction between IDT and PLX or any of the terms and\nconditions with respect to the Proposed Transaction and no Confidential Information will be provided to such\npersons. The term “person” shall be broadly interpreted\nMarch 31, 2012\nto include, without limitation, any corporation, governmental agency or body, partnership or individual.\n4. The parties hereby acknowledge that they are aware that the United States securities laws prohibit any person who\nhas received from an issuer material, non-public information of the type which is the subject of this Agreement\nfrom purchasing or selling securities of such issuer or from communicating such information to any other person\nunder circumstances in which it is reasonably foreseeable that such person will purchase or sell such securities.\n5. Confidential Information disclosed hereunder shall at all times remain, as between the parties, the property of the\nDisclosing Party. No license under any trade secrets, copyrights, or other rights is granted by this Agreement or\nany disclosure of Confidential Information hereunder.\n6. Upon the Disclosing Party’s written request, the Recipient shall promptly destroy or return to the Disclosing Party\nall written Confidential Information (whether prepared by the Disclosing party or its Representatives) and will not\nretain any copies, extracts or other reproductions in whole or in part of such written materials except that (i) one\ncopy of each electronic version of such materials may be retained by Recipient and its Representatives in their\narchives pursuant to such party’s standard data backup and disaster recovery plans and (ii) Recipient’s outside legal\ncounsel and accountants may retain one hard copy of such materials in its archives solely for regulatory or\ncorporate records retention policy compliance and for dispute resolution; provided, however, that any Confidential\nInformation contained in such format may not be used for any other purpose and that all obligations contained\nherein shall, with respect to any Confidential Information so retained, survive any termination of this Agreement.\nReturn and/or destruction of Confidential Information and copies, extracts or other reproductions thereof and\ndocuments, memoranda, notes, and other writings to the extent that they contain Confidential Information shall be\ncertified in writing to the Disclosing Party by an authorized officer of the Recipient supervising such destruction\nupon the Disclosing Party’s written request.\n7. Nothing in this Agreement shall prohibit or limit the Recipient’s use of information (including, but not limited to,\nideas, concepts, know-how, techniques, and methodologies) (i) that was known to Recipient or any of its\nRepresentatives before disclosure by the Disclosing Party or its Representatives, (ii) that was or becomes available\nto the Recipient or any of its Representatives from a source other than the Disclosing Party or its Representatives,\nprovided that such source is not known by the Recipient to be prohibited from disclosing such information by a\ncontractual, legal, or fiduciary obligation to the Disclosing Party or its Representatives, (iii) which is or becomes\npublicly available other than as a result of a disclosure by the Recipient or its Representatives in breach of this\nAgreement or (iv) which is independently developed by Recipient or any of its Representatives without reference\nto the Disclosing Party’s Confidential Information.\n8. During the course of each party’s evaluation of the Proposed Transaction, all inquiries and other communications\nare to be made only to directors, officers, employees and\nPage2of5\nMarch 31, 2012\nRepresentatives of the other parties who have been specifically authorized to discuss the Proposed Transaction. A\nparty shall not directly or indirectly contact or communicate with any shareholder, director, officer, employee or\nRepresentative of a party without the express written consent of the other party.\n9. In consideration of the Confidential Information being furnished hereby, each party agrees that, without the prior\nwritten consent of the Chief Financial Officer or General Counsel of the other party, for a period of twelve\n(12) months from the date of this Agreement neither it nor any of its affiliates will, either directly or indirectly,\nsolicit for employment, or otherwise contract for the services of (or cause or seek to cause to leave the employ of\nother party or any of its affiliates) any person who is now employed or engaged (either as an employee or\nconsultant) or becomes employed or engaged during the term of this Agreement by the other party or its affiliates,\nother than persons whose employment or engagement shall have been terminated at least six (6) months prior to\nthe date of such solicitation, employment or other contractual arrangements. The prohibition contained in this\nparagraph does not extend to general solicitations of employment by a party not specifically directed towards the\nother party’s employees or consultants including but not limited to (i) advertising on the internet or in a newspaper\nor periodical of general circulation, (ii) an employee of an executive search firm acting on behalf of the hiring\ncompany where the hiring company did not instruct or encourage such solicitation, (iii) a general hiring program\nconducted by the hiring party in the ordinary course of business (such as a job fair or the like), or (iv) a response\nby the hiring party if the employee approaches the hiring party on an unsolicited basis.\n10. In the event that a Recipient or its Representative, as the case may be, is requested in any judicial or administrative\nproceeding to disclose any Confidential Information, the Recipient or its Representative will give the Disclosing\nParty prompt notice of such request so that the Disclosing Party may seek an appropriate protective order or other\nprotective remedy. If, in the absence of a protective order (or other protective remedy), the Recipient or its\nRepresentative is compelled to disclose Confidential Information, the Recipient or its Representative may disclose\nsuch information without liability hereunder; provided, however, (i) that the Recipient or its Representative give\nthe Disclosing Party prompt notice of the information to be disclosed and, upon request and at the expense of the\nDisclosing Party, use commercially reasonable efforts to obtain assurances that confidential treatment will be\naccorded to such information, (ii) only that portion of the Confidential Information which is legally required to be\ndisclosed will be disclosed and (iii) the Recipient or its Representative may make such disclosure only if it has\nreceived the advice of counsel that, under the circumstances then existing, making such disclosure is necessary or\nadvisable under applicable law.\n11. Although each party will endeavor to include in the Confidential Information items known to it which it believes to\nbe relevant for the purpose of the other party’s investigation and analysis of the Proposed Transaction, each party\nunderstands and agrees that neither the other party nor any of its Representatives have made or make any\nrepresentation or warranty as to the accuracy or completeness of the Confidential Information. In particular, and\nwithout limitation of the foregoing, each party understands that any projected or forecasted financial,\nPage3of5\nMarch 31, 2012\noperating, performance, strategy or other information reflects merely the judgment of management of such party at\nthe time of the preparation of such information, and is based upon a number of factors and circumstances beyond\nthe control of the party and its management. Accordingly, there can be no assurance that actual results or\nperformance will be in line with any such projections or forecasts. Each party agrees that, except as otherwise\nspecifically agreed to in a definitive written transaction agreement or other binding agreement, neither party nor\nany of its Representatives shall have any liability to the other party or any of its affiliates or Representatives arising\nout of or resulting from the use of the Confidential Information.\n12. Subject to its confidentiality and nondisclosure obligations as set forth in this Agreement, each party’s right to\ndevelop, use and market products and services similar to or competitive with those of the other party shall remain\nunimpaired. Each party acknowledges that the other party may already possess or have developed products or\nservices similar to or competitive with those of the other party disclosed in the Confidential Information.\n13. The parties agree that monetary damages may not be a sufficient remedy for any breach of this Agreement by a\nparty or its Representatives and that, in addition to all other available remedies, either party may be entitled to seek\nspecific performance and injunctive or other equitable relief as a remedy for any such breach.\n14. The parties agree that unless and until a definitive written agreement or other binding agreement between the\nparties with respect to a relationship of the type contemplated by the Proposed Transaction has been executed and\ndelivered by each party hereto, no party will be under any obligation of any kind whatsoever with respect to such a\nrelationship by virtue of this or any written or oral expression concerning such a transaction by any of its\nRepresentatives except, in the case of this Agreement, for the matters specifically agreed to herein. Each party\nfurther acknowledges and agrees that the other party reserves the right, in its sole discretion, to make or not to\nmake any proposal and to reject any and all proposals (or requests to make one or more proposals) made by the\nother party or any of its directors, officers, affiliates, employees, agents, advisors or representatives with regard to\nthe Proposed Transaction, and to terminate discussions and negotiations at any time.\n15. This Agreement sets forth the entire agreement and understanding of the parties with respect to the subject matter\nhereof, and supersedes all prior and contemporaneous agreements, arrangements, understandings, promises and\nassurances relating thereto. This Agreement is for the benefit of the parties hereto and their respective advisors,\ndirectors, officers, employees, shareholders, owners, affiliates, representatives and agents, and shall be governed\nby, construed, interpreted and enforced in accordance with the laws of the State of California, without giving effect\nto principles of conflict of laws which would result in the application of the laws of any other jurisdiction.\n16. This Agreement may be executed in separate counterparts, each of which counterparts shall be deemed an original\nand all of which counterparts shall together constitute one and the\nPage4of5\nMarch 31, 2012\nsame agreement. Nothing in this Agreement may be modified or waived except by a written agreement between\nthe parties expressly so modifying or waiving this Agreement.\n17. The term of this Agreement shall be one (1) year from the date hereof.\nIntegrated Device Technology, Inc.\nPLX Technology, Inc.\nBy: /s/ Ted Tewksbury\nBy: /s/ Ralph Schmitt\nName: Ted Tewksbury\nName: Ralph Schmitt\nTitle: President and Chief Executive Officer\nTitle: President and CEO\nPage5of5	EX-99.10 14 d356019dex9910.htm MUTUAL NON-DISCLOSURE AGREEMENT Exhibit 99.10\n».LOGO MUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (this “Agreement™) is dated as of March 31, 2012 between Integrated\nDevice Technology, Inc., a Delaware corporation (“IDT”), and PLX Technology, Inc., a Delaware corporation (“PLX"). IDT and PLX may work together to evaluate a possible strategic transaction involving IDT and PLX (“Proposed Transaction”). As used in this Agreement, the party disclosing Confidential Information, as defined below, is the “Disclosing Party” and the party receiving the Confidential Information is the “Recipient”. 1. During the evaluation of the Proposed Transaction, the Recipient agrees to treat confidentially information that is\nfurnished by either the Disclosing Party or its Representatives (as defined below) to the Recipient or the\nRecipient’s subsidiaries or its or their respective directors, officers, partners, employees, agents, representatives,\nincluding, without limitation, financial advisors, counsel, accountants, experts, and consultants (collectively,\n“Representatives”) in connection with the Proposed Transaction, together with notes, analyses, compilations,\nstudies or other documents prepared by the Recipient or by its Representatives to the extent they contain or\notherwise reflect such information or the Disclosing Party’s review of, or interest in, the Recipient (“Confidential\nInformation”).\nThe Confidential Information will be used solely for the purposes of evaluating the Proposed Transaction,\nprovided, however, that the Recipient may disclose any Confidential Information to its Representatives who need\nto know such information for the purpose of evaluating the Proposed Transaction. Prior to disclosing the\nConfidential Information to any Representative, however, the Recipient shall inform the Representative of the\nconfidential nature of such information and undertake reasonable efforts to cause them to treat such information on\na confidential basis. The Recipient shall be responsible for the breach of this Agreement by its Representatives that\nhave not separately signed a non-disclosure agreement with the Disclosing Party or any of its Representatives, and\nshall take all reasonable measures to restrain its Representatives from unauthorized disclosure of the Confidential\nInformation. The Disclosing Party and its Representatives shall otherwise have no recourse against any of the\nRecipient’s Representatives that have not separately signed a non-disclosure agreement with the Disclosing Party\nor any of its Representatives.\nThe public disclosure of the Proposed Transaction could have a material adverse effect on IDT’s and PLX’s\nbusinesses if, for any reason, a definitive agreement with respect to such transaction is not consummated.\nAccordingly, each party agrees that without the prior written consent of the other, it will not, and it will direct its\nRepresentatives not to, disclose to any person, other than its Representatives, either the fact that discussions or\nnegotiations are taking place concerning the Proposed Transaction between IDT and PLX or any of the terms and\nconditions with respect to the Proposed Transaction and no Confidential Information will be provided to such\npersons. The term “person” shall be broadly interpreted\nMarch 31, 2012\nto include, without limitation, any corporation, governmental agency or body, partnership or individual.\n4.  The parties hereby acknowledge that they are aware that the United States securities laws prohibit any person who\nhas received from an issuer material, non-public information of the type which is the subject of this Agreement\nfrom purchasing or selling securities of such issuer or from communicating such information to any other person\nunder circumstances in which it is reasonably foreseeable that such person will purchase or sell such securities.\n5.  Confidential Information disclosed hereunder shall at all times remain, as between the parties, the property of the\nDisclosing Party. No license under any trade secrets, copyrights, or other rights is granted by this Agreement or\nany disclosure of Confidential Information hereunder.\n6.  Upon the Disclosing Party’s written request, the Recipient shall promptly destroy or return to the Disclosing Party\nall written Confidential Information (whether prepared by the Disclosing party or its Representatives) and will not\nretain any copies, extracts or other reproductions in whole or in part of such written materials except that (i) one\ncopy of each electronic version of such materials may be retained by Recipient and its Representatives in their\narchives pursuant to such party’s standard data backup and disaster recovery plans and (ii) Recipient’s outside legal\ncounsel and accountants may retain one hard copy of such materials in its archives solely for regulatory or\ncorporate records retention policy compliance and for dispute resolution; provided, however, that any Confidential\nInformation contained in such format may not be used for any other purpose and that all obligations contained\nherein shall, with respect to any Confidential Information so retained, survive any termination of this Agreement.\nReturn and/or destruction of Confidential Information and copies, extracts or other reproductions thereof and\ndocuments, memoranda, notes, and other writings to the extent that they contain Confidential Information shall be\ncertified in writing to the Disclosing Party by an authorized officer of the Recipient supervising such destruction\nupon the Disclosing Party’s written request.\n7. Nothing in this Agreement shall prohibit or limit the Recipient’s use of information (including, but not limited to,\nideas, concepts, know-how, techniques, and methodologies) (i) that was known to Recipient or any of its\nRepresentatives before disclosure by the Disclosing Party or its Representatives, (ii) that was or becomes available\nto the Recipient or any of its Representatives from a source other than the Disclosing Party or its Representatives,\nprovided that such source is not known by the Recipient to be prohibited from disclosing such information by a\ncontractual, legal, or fiduciary obligation to the Disclosing Party or its Representatives, (iii) which is or becomes\npublicly available other than as a result of a disclosure by the Recipient or its Representatives in breach of this\nAgreement or (iv) which is independently developed by Recipient or any of its Representatives without reference\nto the Disclosing Party’s Confidential Information.\n8.  During the course of each party’s evaluation of the Proposed Transaction, all inquiries and other communications\nare to be made only to directors, officers, employees and\nPage 2 of 5\nMarch 31, 2012 10. 11. Representatives of the other parties who have been specifically authorized to discuss the Proposed Transaction. A\nparty shall not directly or indirectly contact or communicate with any shareholder, director, officer, employee or\nRepresentative of a party without the express written consent of the other party.\nIn consideration of the Confidential Information being furnished hereby, each party agrees that, without the prior\nwritten consent of the Chief Financial Officer or General Counsel of the other party, for a period of twelve\n(12) months from the date of this Agreement neither it nor any of its affiliates will, either directly or indirectly,\nsolicit for employment, or otherwise contract for the services of (or cause or seek to cause to leave the employ of\nother party or any of its affiliates) any person who is now employed or engaged (either as an employee or\nconsultant) or becomes employed or engaged during the term of this Agreement by the other party or its affiliates,\nother than persons whose employment or engagement shall have been terminated at least six (6) months prior to\nthe date of such solicitation, employment or other contractual arrangements. The prohibition contained in this\nparagraph does not extend to general solicitations of employment by a party not specifically directed towards the\nother party’s employees or consultants including but not limited to (i) advertising on the internet or in a newspaper\nor periodical of general circulation, (ii) an employee of an executive search firm acting on behalf of the hiring\ncompany where the hiring company did not instruct or encourage such solicitation, (iii) a general hiring program\nconducted by the hiring party in the ordinary course of business (such as a job fair or the like), or (iv) a response\nby the hiring party if the employee approaches the hiring party on an unsolicited basis.\nIn the event that a Recipient or its Representative, as the case may be, is requested in any judicial or administrative\nproceeding to disclose any Confidential Information, the Recipient or its Representative will give the Disclosing\nParty prompt notice of such request so that the Disclosing Party may seek an appropriate protective order or other\nprotective remedy. If, in the absence of a protective order (or other protective remedy), the Recipient or its\nRepresentative is compelled to disclose Confidential Information, the Recipient or its Representative may disclose\nsuch information without liability hereunder; provided, however, (i) that the Recipient or its Representative give\nthe Disclosing Party prompt notice of the information to be disclosed and, upon request and at the expense of the\nDisclosing Party, use commercially reasonable efforts to obtain assurances that confidential treatment will be\naccorded to such information, (ii) only that portion of the Confidential Information which is legally required to be\ndisclosed will be disclosed and (iii) the Recipient or its Representative may make such disclosure only if it has\nreceived the advice of counsel that, under the circumstances then existing, making such disclosure is necessary or\nadvisable under applicable law.\nAlthough each party will endeavor to include in the Confidential Information items known to it which it believes to\nbe relevant for the purpose of the other party’s investigation and analysis of the Proposed Transaction, each party\nunderstands and agrees that neither the other party nor any of its Representatives have made or make any\nrepresentation or warranty as to the accuracy or completeness of the Confidential Information. In particular, and\nwithout limitation of the foregoing, each party understands that any projected or forecasted financial,\nPage 3 of 5\nMarch 31, 2012 12. 13. 14. 15. 16. operating, performance, strategy or other information reflects merely the judgment of management of such party at\nthe time of the preparation of such information, and is based upon a number of factors and circumstances beyond\nthe control of the party and its management. Accordingly, there can be no assurance that actual results or\nperformance will be in line with any such projections or forecasts. Each party agrees that, except as otherwise\nspecifically agreed to in a definitive written transaction agreement or other binding agreement, neither party nor\nany of its Representatives shall have any liability to the other party or any of its affiliates or Representatives arising\nout of or resulting from the use of the Confidential Information.\nSubject to its confidentiality and nondisclosure obligations as set forth in this Agreement, each party’s right to\ndevelop, use and market products and services similar to or competitive with those of the other party shall remain\nunimpaired. Each party acknowledges that the other party may already possess or have developed products or\nservices similar to or competitive with those of the other party disclosed in the Confidential Information.\nThe parties agree that monetary damages may not be a sufficient remedy for any breach of this Agreement by a\nparty or its Representatives and that, in addition to all other available remedies, either party may be entitled to seek\nspecific performance and injunctive or other equitable relief as a remedy for any such breach.\nThe parties agree that unless and until a definitive written agreement or other binding agreement between the\nparties with respect to a relationship of the type contemplated by the Proposed Transaction has been executed and\ndelivered by each party hereto, no party will be under any obligation of any kind whatsoever with respect to such a\nrelationship by virtue of this or any written or oral expression concerning such a transaction by any of its\nRepresentatives except, in the case of this Agreement, for the matters specifically agreed to herein. Each party\nfurther acknowledges and agrees that the other party reserves the right, in its sole discretion, to make or not to\nmake any proposal and to reject any and all proposals (or requests to make one or more proposals) made by the\nother party or any of its directors, officers, affiliates, employees, agents, advisors or representatives with regard to\nthe Proposed Transaction, and to terminate discussions and negotiations at any time.\nThis Agreement sets forth the entire agreement and understanding of the parties with respect to the subject matter\nhereof, and supersedes all prior and contemporaneous agreements, arrangements, understandings, promises and\nassurances relating thereto. This Agreement is for the benefit of the parties hereto and their respective advisors,\ndirectors, officers, employees, shareholders, owners, affiliates, representatives and agents, and shall be governed\nby, construed, interpreted and enforced in accordance with the laws of the State of California, without giving effect\nto principles of conflict of laws which would result in the application of the laws of any other jurisdiction.\nThis Agreement may be executed in separate counterparts, each of which counterparts shall be deemed an original\nand all of which counterparts shall together constitute one and the\nPage 4 of 5\nMarch 31, 2012\nsame agreement. Nothing in this Agreement may be modified or waived except by a written agreement between\nthe parties expressly so modifying or waiving this Agreement.\n17.  The term of this Agreement shall be one (1) year from the date hereof.\nIntegrated Device Technology, Inc. PLX Technology, Inc.\nBy:  /s/ Ted Tewksbury By:  /s/ Ralph Schmitt\nName: Ted Tewksbury Name: Ralph Schmitt\nTitle: President and Chief Executive Officer Title: President and CEO\nPage 5 of 5	EX-99.10 14 d356019dex9910.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit 99.10\nLoGo\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (this "Agreement") is dated as of March 31, 2012 between Integrated\nDevice Technology, Inc., a Delaware corporation ("IDT"), and PLX Technology, Inc., a Delaware corporation ("PLX").\nIDT and PLX may work together to evaluate a possible strategic transaction involving IDT and PLX ("Proposed\nTransaction") As used in this Agreement, the party disclosing Confidential Information, as defined below, is the\n"DisclosingParty." and the party receiving the Confidential Information is the "Recipient"\n1.\nDuring the evaluation of the Proposed Transaction, the Recipient agrees to treat confidentially information that is\nfurnished by either the Disclosing Party or its Representatives (as defined below) to the Recipient or the\nRecipient's subsidiaries or its or their respective directors, officers, partners, employees, agents, representatives,\nincluding, without limitation, financial advisors, counsel, accountants, experts, and consultants (collectively,\n"Representatives") in connection with the Proposed Transaction, together with notes, analyses, compilations,\nstudies or other documents prepared by the Recipient or by its Representatives to the extent they contain or\notherwise reflect such information or the Disclosing Party's review of, or interest in, the Recipient ("Confidential\nInformation").\n2.\nThe Confidential Information will be used solely for the purposes of evaluating the Proposed Transaction,\nprovided, however, that the Recipient may disclose any Confidential Information to its Representatives who need\nto know such information for the purpose of evaluating the Proposed Transaction. Prior to disclosing the\nConfidential Information to any Representative, however, the Recipient shall inform the Representative of the\nconfidential nature of such information and undertake reasonable efforts to cause them to treat such information on\na confidential basis. The Recipient shall be responsible for the breach of this Agreement by its Representatives that\nhave not separately signed a non-disclosure agreement with the Disclosing Party or any of its Representatives, and\nshall take all reasonable measures to restrain its Representatives from unauthorized disclosure of the Confidential\nInformation. The Disclosing Party and its Representatives shall otherwise have no recourse against any of the\nRecipient's Representatives that have not separately signed a non-disclosure agreement with the Disclosing Party\nor any of its Representatives.\n3.\nThe public disclosure of the Proposed Transaction could have a material adverse effect on IDT's and PLX's\nbusinesses if, for any reason, a definitive agreement with respect to such transaction is not consummated.\nAccordingly, each party agrees that without the prior written consent of the other, it will not, and it will direct its\nRepresentatives not to, disclose to any person, other than its Representatives, either the fact that discussions or\nnegotiations are taking place concerning the Proposed Transaction between IDT and PLX or any of the terms and\nconditions with respect to the Proposed Transaction and no Confidential Information will be provided to such\npersons. The term "person" shall be broadly interpreted\nMarch 31, 2012\nto include, without limitation, any corporation, governmental agency or body, partnership or individual.\n4.\nThe parties hereby acknowledge that they are aware that the United States securities laws prohibit any person who\nhas received from an issuer material, non-public information of the type which is the subject of this Agreement\nfrom purchasing or selling securities of such issuer or from communicating such information to any other person\nunder circumstances in which it is reasonably foreseeable that such person will purchase or sell such securities.\n5.\nConfidential Information disclosed hereunder shall at all times remain, as between the parties, the property of the\nDisclosing Party. No license under any trade secrets, copyrights, or other rights is granted by this Agreement or\nany disclosure of Confidential Information hereunder.\n6.\nUpon the Disclosing Party's written request, the Recipient shall promptly destroy or return to the Disclosing Party\nall written Confidential Information (whether prepared by the Disclosing party or its Representatives) and will not\nretain any copies, extracts or other reproductions in whole or in part of such written materials except that (i) one\ncopy of each electronic version of such materials may be retained by Recipient and its Representatives in their\narchives pursuant to such party's standard data backup and disaster recovery plans and (ii) Recipient's outside legal\ncounsel and accountants may retain one hard copy of such materials in its archives solely for regulatory or\ncorporate records retention policy compliance and for dispute resolution; provided, however, that any Confidential\nInformation contained in such format may not be used for any other purpose and that all obligations contained\nherein shall, with respect to any Confidential Information so retained, survive any termination of this Agreement.\nReturn and/or destruction of Confidential Information and copies, extracts or other reproductions thereof and\ndocuments, memoranda, notes, and other writings to the extent that they contain Confidential Information shall be\ncertified in writing to the Disclosing Party by an authorized officer of the Recipient supervising such destruction\nupon the Disclosing Party's written request.\n7.\nNothing in this Agreement shall prohibit or limit the Recipient's use of information (including, but not limited to,\nideas, concepts, know-how, techniques, and methodologies) (i) that was known to Recipient or any of its\nRepresentatives before disclosure by the Disclosing Party or its Representatives, (ii) that was or becomes available\nto the Recipient or any of its Representatives from a source other than the Disclosing Party or its Representatives,\nprovided that such source is not known by the Recipient to be prohibited from disclosing such information by a\ncontractual, legal, or fiduciary obligation to the Disclosing Party or its Representatives, (iii) which is or becomes\npublicly available other than as a result of a disclosure by the Recipient or its Representatives in breach of this\nAgreement or (iv) which is independently developed by Recipient or any of its Representatives without reference\nto the Disclosing Party's Confidential Information.\n8.\nDuring the course of each party's evaluation of the Proposed Transaction, all inquiries and other communications\nare to be made only to directors, officers, employees and\nPage 2 of 5\nMarch 31, 2012\nRepresentatives of the other parties who have been specifically authorized to discuss the Proposed Transaction. A\nparty shall not directly or indirectly contact or communicate with any shareholder, director, officer, employee or\nRepresentative of a party without the express written consent of the other party.\n9.\nIn consideration of the Confidential Information being furnished hereby, each party agrees that, without the prior\nwritten consent of the Chief Financial Officer or General Counsel of the other party, for a period of twelve\n(12) months from the date of this Agreement neither it nor any of its affiliates will, either directly or indirectly,\nsolicit for employment, or otherwise contract for the services of (or cause or seek to cause to leave the employ of\nother party or any of its affiliates) any person who is now employed or engaged (either as an employee or\nconsultant) or becomes employed or engaged during the term of this Agreement by the other party or its affiliates,\nother than persons whose employment or engagement shall have been terminated at least six (6) months prior to\nthe date of such solicitation, employment or other contractual arrangements. The prohibition contained in this\nparagraph does not extend to general solicitations of employment by a party not specifically directed towards the\nother party's employees or consultants including but not limited to (i) advertising on the internet or in a newspaper\nor periodical of general circulation, (ii) an employee of an executive search firm acting on behalf of the hiring\ncompany where the hiring company did not instruct or encourage such solicitation, (iii) a general hiring program\nconducted by the hiring party in the ordinary course of business (such as a job fair or the like), or (iv) a response\nby the hiring party if the employee approaches the hiring party on an unsolicited basis.\n10.\nIn the event that a Recipient or its Representative, as the case may be, is requested in any judicial or administrative\nproceeding to disclose any Confidential Information, the Recipient or its Representative will give the Disclosing\nParty prompt notice of such request so that the Disclosing Party may seek an appropriate protective order or other\nprotective remedy. If, in the absence of a protective order (or other protective remedy), the Recipient or its\nRepresentative is compelled to disclose Confidential Information, the Recipient or its Representative may disclose\nsuch information without liability hereunder; provided, however, (i) that the Recipient or its Representative give\nthe Disclosing Party prompt notice of the information to be disclosed and, upon request and at the expense of the\nDisclosing Party, use commercially reasonable efforts to obtain assurances that confidential treatment will be\naccorded to such information, (ii) only that portion of the Confidential Information which is legally required to be\ndisclosed will be disclosed and (iii) the Recipient or its Representative may make such disclosure only if it has\nreceived the advice of counsel that, under the circumstances then existing, making such disclosure is necessary or\nadvisable under applicable law.\n11.\nAlthough each party will endeavor to include in the Confidential Information items known to it which it believes\nto\nbe relevant for the purpose of the other party's investigation and analysis of the Proposed Transaction, each party\nunderstands and agrees that neither the other party nor any of its Representatives have made or make any\nrepresentation or warranty as to the accuracy or completeness of the Confidential Information. In particular, and\nwithout limitation of the foregoing, each party understands that any projected or forecasted financial,\nPage 3 of 5\nMarch 31, 2012\noperating, performance, strategy or other information reflects merely the judgment of management of such party at\nthe time of the preparation of such information, and is based upon a number of factors and circumstances beyond\nthe control of the party and its management. Accordingly, there can be no assurance that actual results or\nperformance will be in line with any such projections or forecasts. Each party agrees that, except as otherwise\nspecifically agreed to in a definitive written transaction agreement or other binding agreement, neither party nor\nany of its Representatives shall have any liability to the other party or any of its affiliates or Representatives arising\nout of or resulting from the use of the Confidential Information.\n12. Subject to its confidentiality and nondisclosure obligations as set forth in this Agreement, each party's right to\ndevelop, use and market products and services similar to or competitive with those of the other party shall remain\nunimpaired. Each party acknowledges that the other party may already possess or have developed products or\nservices similar to or competitive with those of the other party disclosed in the Confidential Information.\n13.\nThe parties agree that monetary damages may not be a sufficient remedy for any breach of this Agreement by a\nparty or its Representatives and that, in addition to all other available remedies, either party may be entitled to seek\nspecific performance and injunctive or other equitable relief as a remedy for any such breach.\n14. The parties agree that unless and until a definitive written agreement or other binding agreement between the\nparties with respect to a relationship of the type contemplated by the Proposed Transaction has been executed and\ndelivered by each party hereto, no party will be under any obligation of any kind whatsoever with respect to such a\nrelationship by virtue of this or any written or oral expression concerning such a transaction by any of its\nRepresentatives except, in the case of this Agreement, for the matters specifically agreed to herein. Each party\nfurther acknowledges and agrees that the other party reserves the right, in its sole discretion, to make or not to\nmake any proposal and to reject any and all proposals (or requests to make one or more proposals) made by the\nother party or any of its directors, officers, affiliates, employees, agents, advisors or representatives with regard to\nthe Proposed Transaction, and to terminate discussions and negotiations at any time.\n15. This Agreement sets forth the entire agreement and understanding of the parties with respect to the subject matter\nhereof, and supersedes all prior and contemporaneous agreements, arrangements, understandings, promises and\nassurances relating thereto. This Agreement is for the benefit of the parties hereto and their respective advisors,\ndirectors, officers, employees, shareholders, owners, affiliates, representatives and agents, and shall be governed\nby, construed, interpreted and enforced in accordance with the laws of the State of California, without giving effect\nto principles of conflict of laws which would result in the application of the laws of any other jurisdiction.\n16. This Agreement may be executed in separate counterparts, each of which counterparts shall be deemed an original\nand all of which counterparts shall together constitute one and the\nPage 4 of 5\nMarch 31, 2012\nsame agreement. Nothing in this Agreement may be modified or waived except by a written agreement between\nthe parties expressly SO modifying or waiving this Agreement.\n17. The term of this Agreement shall be one (1) year from the date hereof.\nIntegrated Device Technology, Inc.\nPLX Technology, Inc.\nBy:\n/s/ Ted Tewksbury\nBy: /s/ Ralph Schmitt\nName: Ted Tewksbury\nName: Ralph Schmitt\nTitle: President and Chief Executive Officer\nTitle: President and CEO\nPage 5 of 5	EX-99.10 14 d356019dex9910.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit 99.10\nLOGO\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (this “Agreement”) is dated as of March 31, 2012 between Integrated\nDevice Technology, Inc., a Delaware corporation (“IDT”), and PLX Technology, Inc., a Delaware corporation (“PLX”).\nIDT and PLX may work together to evaluate a possible strategic transaction involving IDT and PLX (“Proposed\nTransaction”). As used in this Agreement, the party disclosing Confidential Information, as defined below, is the\n“Disclosing Party” and the party receiving the Confidential Information is the “Recipient”.\n1. During the evaluation of the Proposed Transaction, the Recipient agrees to treat confidentially information that is\nfurnished by either the Disclosing Party or its Representatives (as defined below) to the Recipient or the\nRecipient’s subsidiaries or its or their respective directors, officers, partners, employees, agents, representatives,\nincluding, without limitation, financial advisors, counsel, accountants, experts, and consultants (collectively,\n“Representatives”) in connection with the Proposed Transaction, together with notes, analyses, compilations,\nstudies or other documents prepared by the Recipient or by its Representatives to the extent they contain or\notherwise reflect such information or the Disclosing Party’s review of, or interest in, the Recipient (“Confidential\nInformation”).\n2. The Confidential Information will be used solely for the purposes of evaluating the Proposed Transaction,\nprovided, however, that the Recipient may disclose any Confidential Information to its Representatives who need\nto know such information for the purpose of evaluating the Proposed Transaction. Prior to disclosing the\nConfidential Information to any Representative, however, the Recipient shall inform the Representative of the\nconfidential nature of such information and undertake reasonable efforts to cause them to treat such information on\na confidential basis. The Recipient shall be responsible for the breach of this Agreement by its Representatives that\nhave not separately signed a non-disclosure agreement with the Disclosing Party or any of its Representatives, and\nshall take all reasonable measures to restrain its Representatives from unauthorized disclosure of the Confidential\nInformation. The Disclosing Party and its Representatives shall otherwise have no recourse against any of the\nRecipient’s Representatives that have not separately signed a non-disclosure agreement with the Disclosing Party\nor any of its Representatives.\n3. The public disclosure of the Proposed Transaction could have a material adverse effect on IDT’s and PLX’s\nbusinesses if, for any reason, a definitive agreement with respect to such transaction is not consummated.\nAccordingly, each party agrees that without the prior written consent of the other, it will not, and it will direct its\nRepresentatives not to, disclose to any person, other than its Representatives, either the fact that discussions or\nnegotiations are taking place concerning the Proposed Transaction between IDT and PLX or any of the terms and\nconditions with respect to the Proposed Transaction and no Confidential Information will be provided to such\npersons. The term “person” shall be broadly interpreted\nMarch 31, 2012\nto include, without limitation, any corporation, governmental agency or body, partnership or individual.\n4. The parties hereby acknowledge that they are aware that the United States securities laws prohibit any person who\nhas received from an issuer material, non-public information of the type which is the subject of this Agreement\nfrom purchasing or selling securities of such issuer or from communicating such information to any other person\nunder circumstances in which it is reasonably foreseeable that such person will purchase or sell such securities.\n5. Confidential Information disclosed hereunder shall at all times remain, as between the parties, the property of the\nDisclosing Party. No license under any trade secrets, copyrights, or other rights is granted by this Agreement or\nany disclosure of Confidential Information hereunder.\n6. Upon the Disclosing Party’s written request, the Recipient shall promptly destroy or return to the Disclosing Party\nall written Confidential Information (whether prepared by the Disclosing party or its Representatives) and will not\nretain any copies, extracts or other reproductions in whole or in part of such written materials except that (i) one\ncopy of each electronic version of such materials may be retained by Recipient and its Representatives in their\narchives pursuant to such party’s standard data backup and disaster recovery plans and (ii) Recipient’s outside legal\ncounsel and accountants may retain one hard copy of such materials in its archives solely for regulatory or\ncorporate records retention policy compliance and for dispute resolution; provided, however, that any Confidential\nInformation contained in such format may not be used for any other purpose and that all obligations contained\nherein shall, with respect to any Confidential Information so retained, survive any termination of this Agreement.\nReturn and/or destruction of Confidential Information and copies, extracts or other reproductions thereof and\ndocuments, memoranda, notes, and other writings to the extent that they contain Confidential Information shall be\ncertified in writing to the Disclosing Party by an authorized officer of the Recipient supervising such destruction\nupon the Disclosing Party’s written request.\n7. Nothing in this Agreement shall prohibit or limit the Recipient’s use of information (including, but not limited to,\nideas, concepts, know-how, techniques, and methodologies) (i) that was known to Recipient or any of its\nRepresentatives before disclosure by the Disclosing Party or its Representatives, (ii) that was or becomes available\nto the Recipient or any of its Representatives from a source other than the Disclosing Party or its Representatives,\nprovided that such source is not known by the Recipient to be prohibited from disclosing such information by a\ncontractual, legal, or fiduciary obligation to the Disclosing Party or its Representatives, (iii) which is or becomes\npublicly available other than as a result of a disclosure by the Recipient or its Representatives in breach of this\nAgreement or (iv) which is independently developed by Recipient or any of its Representatives without reference\nto the Disclosing Party’s Confidential Information.\n8. During the course of each party’s evaluation of the Proposed Transaction, all inquiries and other communications\nare to be made only to directors, officers, employees and\nPage2of5\nMarch 31, 2012\nRepresentatives of the other parties who have been specifically authorized to discuss the Proposed Transaction. A\nparty shall not directly or indirectly contact or communicate with any shareholder, director, officer, employee or\nRepresentative of a party without the express written consent of the other party.\n9. In consideration of the Confidential Information being furnished hereby, each party agrees that, without the prior\nwritten consent of the Chief Financial Officer or General Counsel of the other party, for a period of twelve\n(12) months from the date of this Agreement neither it nor any of its affiliates will, either directly or indirectly,\nsolicit for employment, or otherwise contract for the services of (or cause or seek to cause to leave the employ of\nother party or any of its affiliates) any person who is now employed or engaged (either as an employee or\nconsultant) or becomes employed or engaged during the term of this Agreement by the other party or its affiliates,\nother than persons whose employment or engagement shall have been terminated at least six (6) months prior to\nthe date of such solicitation, employment or other contractual arrangements. The prohibition contained in this\nparagraph does not extend to general solicitations of employment by a party not specifically directed towards the\nother party’s employees or consultants including but not limited to (i) advertising on the internet or in a newspaper\nor periodical of general circulation, (ii) an employee of an executive search firm acting on behalf of the hiring\ncompany where the hiring company did not instruct or encourage such solicitation, (iii) a general hiring program\nconducted by the hiring party in the ordinary course of business (such as a job fair or the like), or (iv) a response\nby the hiring party if the employee approaches the hiring party on an unsolicited basis.\n10. In the event that a Recipient or its Representative, as the case may be, is requested in any judicial or administrative\nproceeding to disclose any Confidential Information, the Recipient or its Representative will give the Disclosing\nParty prompt notice of such request so that the Disclosing Party may seek an appropriate protective order or other\nprotective remedy. If, in the absence of a protective order (or other protective remedy), the Recipient or its\nRepresentative is compelled to disclose Confidential Information, the Recipient or its Representative may disclose\nsuch information without liability hereunder; provided, however, (i) that the Recipient or its Representative give\nthe Disclosing Party prompt notice of the information to be disclosed and, upon request and at the expense of the\nDisclosing Party, use commercially reasonable efforts to obtain assurances that confidential treatment will be\naccorded to such information, (ii) only that portion of the Confidential Information which is legally required to be\ndisclosed will be disclosed and (iii) the Recipient or its Representative may make such disclosure only if it has\nreceived the advice of counsel that, under the circumstances then existing, making such disclosure is necessary or\nadvisable under applicable law.\n11. Although each party will endeavor to include in the Confidential Information items known to it which it believes to\nbe relevant for the purpose of the other party’s investigation and analysis of the Proposed Transaction, each party\nunderstands and agrees that neither the other party nor any of its Representatives have made or make any\nrepresentation or warranty as to the accuracy or completeness of the Confidential Information. In particular, and\nwithout limitation of the foregoing, each party understands that any projected or forecasted financial,\nPage3of5\nMarch 31, 2012\noperating, performance, strategy or other information reflects merely the judgment of management of such party at\nthe time of the preparation of such information, and is based upon a number of factors and circumstances beyond\nthe control of the party and its management. Accordingly, there can be no assurance that actual results or\nperformance will be in line with any such projections or forecasts. Each party agrees that, except as otherwise\nspecifically agreed to in a definitive written transaction agreement or other binding agreement, neither party nor\nany of its Representatives shall have any liability to the other party or any of its affiliates or Representatives arising\nout of or resulting from the use of the Confidential Information.\n12. Subject to its confidentiality and nondisclosure obligations as set forth in this Agreement, each party’s right to\ndevelop, use and market products and services similar to or competitive with those of the other party shall remain\nunimpaired. Each party acknowledges that the other party may already possess or have developed products or\nservices similar to or competitive with those of the other party disclosed in the Confidential Information.\n13. The parties agree that monetary damages may not be a sufficient remedy for any breach of this Agreement by a\nparty or its Representatives and that, in addition to all other available remedies, either party may be entitled to seek\nspecific performance and injunctive or other equitable relief as a remedy for any such breach.\n14. The parties agree that unless and until a definitive written agreement or other binding agreement between the\nparties with respect to a relationship of the type contemplated by the Proposed Transaction has been executed and\ndelivered by each party hereto, no party will be under any obligation of any kind whatsoever with respect to such a\nrelationship by virtue of this or any written or oral expression concerning such a transaction by any of its\nRepresentatives except, in the case of this Agreement, for the matters specifically agreed to herein. Each party\nfurther acknowledges and agrees that the other party reserves the right, in its sole discretion, to make or not to\nmake any proposal and to reject any and all proposals (or requests to make one or more proposals) made by the\nother party or any of its directors, officers, affiliates, employees, agents, advisors or representatives with regard to\nthe Proposed Transaction, and to terminate discussions and negotiations at any time.\n15. This Agreement sets forth the entire agreement and understanding of the parties with respect to the subject matter\nhereof, and supersedes all prior and contemporaneous agreements, arrangements, understandings, promises and\nassurances relating thereto. This Agreement is for the benefit of the parties hereto and their respective advisors,\ndirectors, officers, employees, shareholders, owners, affiliates, representatives and agents, and shall be governed\nby, construed, interpreted and enforced in accordance with the laws of the State of California, without giving effect\nto principles of conflict of laws which would result in the application of the laws of any other jurisdiction.\n16. This Agreement may be executed in separate counterparts, each of which counterparts shall be deemed an original\nand all of which counterparts shall together constitute one and the\nPage4of5\nMarch 31, 2012\nsame agreement. Nothing in this Agreement may be modified or waived except by a written agreement between\nthe parties expressly so modifying or waiving this Agreement.\n17. The term of this Agreement shall be one (1) year from the date hereof.\nIntegrated Device Technology, Inc.\nPLX Technology, Inc.\nBy: /s/ Ted Tewksbury\nBy: /s/ Ralph Schmitt\nName: Ted Tewksbury\nName: Ralph Schmitt\nTitle: President and Chief Executive Officer\nTitle: President and CEO\nPage5of5
+5100360b6dc2bade6771d2dca08b1d3f.pdf	jurisdiction party term	Exhibit 10.1\nEXECUTIVE EMPLOYMENT, NON-COMPETE\nAND CONFIDENTIALITY AGREEMENT\nTHIS EXECUTIVE EMPLOYMENT, NON-COMPETE AND CONFIDENTIALITY AGREEMENT (this\n"Agreement"), is entered into as of the date set forth on the signature page (the “Execution Date”) by and\nbetween Bruce L. Caswell (the "Executive") and MAXIMUS, Inc., a Virginia corporation with its principal place\nof business in Reston, Virginia (the "Corporation") with reference to the following:\nWHEREAS, the parties entered into that certain Executive Employment, Non-Compete and\nConfidentiality Agreement effective on or about October 1, 2004, which was subsequently amended on\nNovember 20, 2007 (as amended, the “Prior Agreement”); and\nWHEREAS, the parties believe the Executive possesses the experience and capabilities to provide\nvaluable service on behalf of the Corporation; and\nWHEREAS, the Corporation desires to employ the Executive as its President and Chief Executive\nOfficer; and\nWHEREAS, the Executive desires to be employed by the Corporation at the salary, benefits and other\nterms and conditions specified herein.\nNOW, THEREFORE, in consideration of these premises and for other good and valuable\nconsideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:\n1.\nEmployment.\n1.1Duties. The Corporation hereby employs the Executive, and the Executive hereby accepts such\nemployment, to serve as the President and Chief Executive Officer. The Executive hereby represents and\nwarrants that he is in good health and capable of performing the services required hereunder. The Executive\nshall perform such services and duties as are appropriate to such office or delegated to the Executive by the\nCorporation’s Board of Directors (“Board”). During the term of this Agreement, the Executive shall be a\nfull-time employee of the Corporation and shall devote such time and attention to the discharge of his duties\nas may be necessary and appropriate to accomplish and complete such duties.\nThe Executive shall be nominated by the Board for election as a director and shall serve, without\nadditional compensation, as a member of the Board, subject to his being so elected by the Corporation's\nstockholders. The Executive agrees to obtain the consent of the Board, which consent may be withheld in the\nBoard’s sole discretion, before serving on the board of any other entity or organization.\n1.2Compensation.\n(a)Base Salary. As compensation for performance of his obligations hereunder, the Corporation\nshall pay the Executive an annual salary of $700,000 ("Base Salary"), such Base Salary to be\nreviewed annually beginning on or about October 1, 2018.\n(b)Management Bonus Program. The Executive will be eligible to participate in the\nCorporation's Management Bonus Program (“MBP”), with any awards dependent on the performance\nof the Executive and the Corporation. The target annual cash bonus for the Executive will be one\nhundred percent (100%) of annual Base Salary for accomplishing his annual goals.\n(c)Equity Awards. The Executive shall be eligible to receive awards under the 2017 Equity\nIncentive Plan or any successor plan (the “Equity Plan”) in the discretion of the Corporation's Board of\nDirectors, and shall also be entitled to participate in stock option and similar plans as currently exist or\nmay be established by the Corporation from time to time. The target annual equity award for the\nExecutive will be three hundred seventy-five percent (375%) of annual Base Salary. The Corporation\nagrees to proportionately adjust the Executive’s vested and unvested equity awards in the event the\nCorporation declares an extraordinary dividend during the term hereof. For these purposes, an\n“extraordinary dividend” would be any distribution per share having a value in excess of ten percent\n(10%) of the average trading price of the Corporation’s common stock during the three-month period\npreceding such distribution. Any Restricted Stock Units or other equity awards made to the Executive\non or after the Effective Date, shall vest according to their stated vesting schedules (or pursuant to the\nacceleration feature in connection with a Change of Control) unless the Executive is terminated for\nCause or voluntarily resigns his employment without Good Reason in which case any unvested\nawards shall be forfeited as of the effective date of termination.\nFor purposes of this Agreement, the terms “Cause,” “Change of Control” and “Good Reason” shall\nhave the meanings set forth in the Corporations Income Continuity Program (“ICP”) in effect as of the\nEffective Date.\n(d)Income Continuity Program. The Executive shall continue to be a Participant in the ICP. In\nthe event the ICP is subsequently amended or terminated, upon a qualifying termination of Executive’s\nemployment in connection with a Change of Control the Executive shall be entitled to receive the\ngreater of (i) the compensation and benefits payable under the ICP as it exists on the Effective Date or\n(ii) the compensation and benefits payable under any amended or successor program to the ICP.\n(e)Vacation, Insurance, Expenses, Etc. The Executive shall be entitled to vacation under the\nCorporation’s Executive Time Off policy, and such benefits, health, disability and life insurance and\nother benefits and expense reimbursements in a manner consistent with the Corporation's past\npractices and as are provided to the Corporation’s senior executives.\n(f)Insurance. The Corporation shall maintain the Executive as an insured party on all directors'\nand officers' insurance maintained by the Corporation for the benefit of its directors and officers on at\nleast the same basis as all other covered individuals and provide the Executive with at least the same\ncorporate indemnification as its officers.\n(g)Attorneys’ Fees. The Corporation shall reimburse the Executive for reasonable attorneys’\nfees incurred in connection with the review and negotiation of this Agreement within thirty (30) days\nfollowing the Execution Date, subject to prior submission of an invoice therefor.\n1.3Term; Termination. The term of the employment agreement set forth in this Section 1 shall be for a\nperiod commencing at the Effective Date and continuing for three (3) years thereafter (the "Scheduled Term").\nFollowing the Scheduled Term, the Agreement shall automatically renew for successive one-year terms (each\na “Renewal Term”) unless either party notifies the other of its desire to terminate the Agreement no less than\nthree (3) months before the expiration of the Scheduled Term or Renewal Term. Notwithstanding the\nforegoing, this Agreement shall terminate:\n(a)by mutual written consent of the parties;\n(b)upon Executive's death or inability, by reason of physical or mental impairment, to perform\nsubstantially all of Executive's duties as contemplated herein for a continuous period of 120 days or\nmore; or\n(c)by the Corporation for Cause.\nUpon any termination of employment under this Section 1.3, neither party shall have any obligation to\nthe other pursuant to this Section 1, but such termination shall have no effect on the obligations of the parties\nunder other provisions of this Agreement.\n“Effective Date” shall mean April 1, 2018. The Prior Agreement shall remain in full force and effect until\nthe Effective Date, at which time it shall automatically terminate without further action by the parties,\n1.4 Severance. The parties agree that in the event (i) the Corporation terminates the Executive's\nemployment without Cause, (ii) the Executive terminates the employment for Good Reason prior to the\nexpiration of the Scheduled Term or then-current Renewal Term, as applicable, or (iii) the Corporation elects\nnot to renew the Agreement for another term, the Executive shall be entitled to receive the following upon the\nexecution of a general release by the Executive in the form attached hereto as Exhibit A, which release shall\nbe executed and irrevocable within thirty (30) days of termination:\n(a)benefits, at the Corporation's expense, as provided under Section 1.2(e) for the greater of\nthe remainder of the current term of the Agreement or twelve (12) months. To the extent that these\npayments are not exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the\n'Code') under the COBRA, reimbursement, in-kind benefit, or other applicable exceptions thereunder,\nsuch payments shall be made at the time and in the amount required under the documents governing\neach such benefit;\n(b)continued vesting of stock options and Restricted Stock Units in accordance with their stated\nterms; and\n(c) a lump sum, payable within forty-five (45) days following termination of employment, equal\nto the greater of (i) Base Salary for the remainder of the Scheduled Term or Renewal Term or (ii) two\ntimes the sum of the Executive's Base Salary plus the lesser of his target bonus or previous year's\nactual bonus, which lump sum shall be considered a separate payment for purposes of Section 409A\nof the Code. If the Executive's employment termination occurs in connection with a Change in Control,\nthe Executive shall be entitled to receive such payments and benefits as provided under the Income\nContinuity Plan, and this Section 1.4 shall not apply.\n2.\nRestrictions on Competition and Solicitation.\n2.1.Prohibited Activities.\na.The Executive agrees that, during his employment with the Corporation and for a period of\none (1) year after the termination of such employment for any reason, the Executive, anywhere in the\nUnited States or in any other country or jurisdiction where the Corporation conducts business as of the\ntime of such termination:\ni.will not whether as a principal, investor, owner, executive, consultant, independent\ncontractor, officer, director, board member, manager, partner, agent, or otherwise, alone or in\nassociation with any other person, firm, corporation, or business organization, work for,\nbecome employed by, engage in, carry on, provide services to, or assist in any manner\n(whether or not for compensation or gain) an entity in competition with the Corporation, where\nthe Executive’s position or service for such entity is competitive with any of the Executive’s\npositions or services that the Executive performed for the Corporation;\nii. will not contact any of the Corporation’s Customers or Potential Customers or solicit\nor induce (or attempt to solicit or induce) any of them to not conduct business with the\nCorporation, or to conduct business with or contract with any other person or entity instead of\nthe Corporation. For purposes of this Agreement, “Customers or Potential Customers”\nmeans all persons, companies, firms, or entities that have, within the twelve (12) months prior\nto the Executive’s termination of employment: (A) obtained the Corporation’s services, (B)\ncontacted the Corporation for the purpose of obtaining the Corporation’s services, or (C) been\nactively solicited by the Corporation for the purpose of providing its services; and for which the\nExecutive provided services or about which the Executive had access to and knowledge of\nproprietary information;\niii.will not, directly or indirectly, contact, solicit or induce (or attempt to solicit or induce)\nany of the Corporation Personnel to leave their employment with the Corporation or consider\nemployment with any other person or entity. For purposes of this Agreement, the “Corporation\nPersonnel” shall mean any employee or service provider of the Corporation who worked for the\nCorporation during Executive’s employment and with whom the Executive worked personally or\nknew personally or who was known by the Executive to have unique knowledge or skills that\ncould cause competitive harm to the Corporation;\niv. will not, directly or indirectly, hire or cause to be hired (or engage or cause to be\nengaged as an independent contractor) any such Corporation Personnel; and\nv.Executive agrees that the restrictions set forth in this Section 2.1, in light of the access\nto client, proprietary and other confidential information that the Corporation provides to\nExecutive, are reasonable and necessary in order to protect the legitimate business interests of\nthe Corporation. Executive agrees that the duration of the restrictions set forth in this paragraph\nshall be extended by the duration of any period in which Executive is in violation of any of those\nrestrictions. The existence of any other claim by Executive against the Corporation, whether\nbased on this Agreement or otherwise, will not constitute a defense to the enforcement of this\nAgreement by the Corporation.\nb.The Executive shall notify any new employer, partner, association or any other firm or\ncorporation in competition with the Corporation with whom the Executive shall become associated in\nany capacity whatsoever of the provisions of this Section 2 and the Executive agrees that the\nCorporation may give such notice to such firm, corporation or other person.\n2.2.Business Opportunities; Conflicts of Interest; Other Employment and Activities of the Executive.\na.The Executive agrees promptly to advise the Corporation of, and provide the Corporation with\nan opportunity to pursue, all business opportunities that reasonably relate to the present business\nconducted by the Corporation.\nb.The Executive, in his capacity as an employee of the Corporation, shall not engage in any\nbusiness with any member of the Executive's immediate family or with any person or business entity in\nwhich the Executive or any member of the Executive's immediate family has any ownership interest or\nfinancial interest, unless and until the Executive has first fully disclosed such interest to and received\nwritten consent from the Board of Directors. As used herein, the term "immediate family" means the\nExecutive's spouse, natural or adopted children, parents or siblings and the term "financial interest"\nmeans any relationship with such person or business entity that may monetarily benefit the Executive\nor member of the Executive's immediate family, including any lending relationship or the guarantying of\nany obligations of such person or business entity by the Executive or member of his immediate family.\nc.The parties hereto agree that the Executive may, consistent with this Section 2.2, receive and\nretain speaking fees, referral fees from business opportunities not accepted by the\nCorporation, and fees from outside business activities and opportunities of the Executive consented to\nby the Board of Directors.\n3.Confidentiality. The Executive agrees that the Corporation's books, records, files and all other non-public\ninformation relating to the Corporation, its business, clients and employees are proprietary in nature and\ncontain trade secrets and shall be held in strict confidence by the Executive, and shall not, either during the\nterm of this Agreement or after the termination hereof, be used by Executive or disclosed, directly or indirectly,\nto any third party, except to the extent such use or disclosure is in furtherance of the Corporation's business or\nrequired by any law, rule, regulation or other legal process. The trade secrets or other proprietary or\nconfidential information referred to in the prior sentence includes, without limitation, all proposals to clients or\npotential clients, contracts, client or potential client lists, fee policies, financial information, administration or\nmarketing practices or procedures and all other information regarding the business of the Corporation and its\nclients not generally known to the public.\n4.Miscellaneous.\n4.1.Notices. All notices, requests, demands or other communications provided for in this Agreement\nshall be in writing and shall be delivered by hand, sent prepaid by overnight delivery service or sent by the\nUnited States mail, certified, postage prepaid, return receipt request, to the following:\nIf to the Corporation:\nMAXIMUS, Inc.\n1891 Metro Center Drive\nReston, Virginia 20190\nAttention: General Counsel\nIf to the Executive:\nBruce L. Caswell\nWith a copy (not constituting notice) to:\nWilliams & Connolly LLP\n725 Twelfth Street, NW\nWashington, DC 20005\nAttention: Deneen C. Howell, Esq.\nAny notice, request, demand or other communication delivered or sent in the foregoing manner shall be\ndeemed given or made (as the case may be) upon the earliest of (i) the date it is actually received, (ii) the\nbusiness-day after the day on which it is delivered by hand, (iii) the business day after the day on which it is\nproperly delivered to Federal Express (or a comparable overnight delivery service), or (iv) the third business\nday after the date on which it is deposited in the United States mail. Either party may change its address by\nnotifying the other party of the new address in any manner permitted by this paragraph.\n4.2.Remedies. The parties agree and acknowledge that any violation by the Executive of the terms\nhereof may result in irreparable injury and damage to the Corporation or its clients, which may not adequately\nbe compensable in monetary damages, that the Corporation will have no adequate remedy at law therefor,\nand that the Corporation may obtain such preliminary, temporary or permanent mandatory or restraining\ninjunctions, orders or decrees as may be necessary to protect it against, or on account of, any breach of the\nprovisions contained in this Agreement.\n4.3.No Obligation of Continued Employment. The Executive understands that this Agreement does not\ncreate an obligation on the part of the Corporation to continue the Executive's employment with the\nCorporation after the expiration or termination of this Agreement.\n4.4.Benefit; Assignment. This Agreement shall bind and inure to the benefit of the parties and their\nrespective personal representatives, heirs, successors and assigns, provided this Agreement may not be\nassigned by either party without the consent of the other, except that the Corporation may assign this\nAgreement in connection with the merger, consolidation or sale of all or substantially all of its business or\nassets.\n4.5.Entire Agreement. This Agreement supersedes all previous agreements, written or oral, with\nrespect to the subject matter of this Agreement other than the Prior Agreement, which shall remain in full force\nand effect until the Effective Date.\n4.6.Severability. In the event that any one or more of the provisions contained herein shall be held to\nbe invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect\nany other provisions of this Agreement, and all other provisions shall remain in full force and effect. If any of\nthe provisions of this Agreement is held to be excessively broad, it shall be reformed and construed by limiting\nand reducing it so as to be enforceable to the maximum extent permitted by law.\n4.7.Waivers. No delay or omission by either party in exercising any right under this Agreement will\noperate as a waiver of that or any other right. A waiver or consent given by either party on any occasion is\neffective only in that instance and will not be construed as a bar to or waiver of any right on any other\noccasion.\n4.8.Captions. The captions of the various sections and paragraphs of this Agreement have been\ninserted only for the purpose of convenience; such captions are not a part of this Agreement and shall not be\ndeemed in any manner to modify, explain, enlarge or restrict any of the provisions of this Agreement.\n4.9.Governing Law and Jurisdiction. This Agreement shall in all events and for all purposes be\ngoverned by, and construed in accordance with, the laws of the Commonwealth of Virginia. Any action or\nproceeding against the parties relating in any way to this Agreement must be brought and enforced in the\ncourts of Fairfax County, Virginia or the Eastern District of Virginia, and the parties irrevocably submit to the\njurisdiction of such courts in respect of any such action or proceeding.\n4.10.Amendments. No changes to this Agreement shall be binding unless in writing and signed by both\nthe parties.\n4.11 .Counterparts. This Agreement may be executed in several counterparts (including via facsimile\nand the electronic exchange of .pdf copies), each of which shall be deemed an original, and all such\ncounterparts shall constitute one instrument.\n4.12. Distributions to Specified Employees. Notwithstanding any provision to the contrary, to the\nextent the Executive is considered a specified employee under Section 409A of the Code and would be\nentitled to a payment during the six month period beginning on the Executive's date of termination that is not\notherwise excluded under Section 409A of the Code under the exceptions for short-term deferrals, separation\npay arrangements, reimbursements, in-kind distributions, or an otherwise applicable exemption, the payment\nwill not be made to the Executive until the earlier of the six month anniversary of the Executive's date of\ntermination or the Executive's death.\n4.13. Section 409A of the Code. It is the intention of the parties that this Agreement comply with and\nbe administered in accordance with Section 409A of the Code and the interpretive guidance thereunder,\nincluding the exceptions for short-term deferrals, separation pay arrangements, reimbursements, and in-\nkind distributions. The Agreement shall be construed and interpreted in accordance with such intent. To the\nextent such potential payments or benefits could become subject to such Section, the parties shall cooperate\nto amend this Agreement with the goal of giving the Executive the economic benefits described herein in a\nmanner that does not result in such tax being imposed. In the event that the Corporation does not so\ncooperate, the Corporation shall indemnify the Executive for any interest and additional tax arising from the\napplication of Section 409A of the Code, grossed-up for any other income tax incurred by Executive related to\nthe indemnification (i.e., indemnification of such additional income tax), assuming the highest marginal income\ntax rates apply to any taxable indemnification. Any indemnification payment shall be made within ninety (90)\ndays of the date Executive makes payment of the interest and/or additional tax.\nTHE EXECUTIVE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND THE\nEXECUTIVE UNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. THE EXECUTIVE\nUNDERSTANDS THAT THIS AGREEMENT MAY AFFECT THE EXECUTIVE'S RIGHT TO ACCEPT\nEMPLOYMENT WITH OTHER COMPANIES SUBSEQUENT TO THE EXECUTIVE'S EMPLOYMENT WITH\nTHE CORPORATION.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set forth\nbelow.\nEXECUTIVE\nMAXIMUS, Inc.\n/s/ Bruce L. Caswell\nBy /s/ David R. Francis\nBruce L. Caswell\nDate January 10, 2018\nTitle General Counsel\nEXHIBIT A\nGENERAL RELEASE OF CLAIMS\nIn consideration of the Severance (“Severance”) to be provided to me under Section 1.4 of that certain\nExecutive Employment, Non-Compete and Confidentiality Agreement between me and MAXIMUS, Inc.\n(“MAXIMUS”) effective April 1, 2018 (the “Employment Agreement”), and intending to be legally bound, I\nagree as follows:\nGeneral Release and Waivers. I release MAXIMUS and its affiliated entities and their respective officers,\ndirectors, partners, owners, executives, contractors, clients, agents, representatives, administrators of any\nMAXIMUS benefit plan, predecessors, successors and assigns (the “Releasees”) from any and all individual\nor class action claims, actions, rights, demands, debts, damages, grievances or accountings of whatever\nnature, whether known or unknown, currently existing or arising in the future, that I have or may have against\nthe Releasees relating in any way to my employment with MAXIMUS or the termination thereof, including,\nwithout limitation, claims under the Age Discrimination in Employment Act, Older Workers Benefit Protection\nAct, Title VII of the Civil Rights Act of 1964, Worker Adjustment and Retraining Notification Act, Family and\nMedical Leave Act, Americans with Disabilities Act, Fair Credit Reporting Act, Sarbanes-Oxley Act,\nImmigration Reform and Control Act, Occupational Safety and Health Act, and all other federal, state or local\nlaws or any other statute, rule, regulation or executive order precluding discrimination or retaliation in\nemployment, claims for breach of contract, wrongful discharge, personal injuries or torts, defamation, and all\nother claims whether known or unknown, arising through the date of execution of this General Release of\nClaims (“General Release”) by me, excepting only those matters set forth in this General Release.\nExcluded from this General Release are: (i) any claim or right which cannot be waived by law, including\nwithout limitation, all claims arising after the date of this Agreement, claims for unemployment compensation,\nand claims for worker compensation benefits; (ii) claims under the Fair Labor Standards Act; (iii) the right to\nfile a charge with or participate in an investigation conducted by an administrative agency, provided I am\nwaiving, however, any right to any monetary recovery if any administrative agency pursues any claim or\nclaims on my behalf with the exception of monetary recovery for Securities and Exchange Commission claims;\n(iv) any indemnification obligations of MAXIMUS to me pertaining to the period prior to the date of my\ntermination of employment (“Termination Date”) in my capacity as a director or officer under the articles of\nincorporation, by-laws or other organizational documents of MAXIMUS and its affiliated entities; (v) to the\nextent pertaining to the period prior to the Termination Date, the obligations of any insurer (other than\nMAXIMUS and its affiliated entities, including with respect to self-insurance) under any insurance policy for\nevents, acts or omissions for directors or officers of MAXIMUS and its affiliated entities; and (vi) my right to all\nearned but unpaid base salary through the Termination Date, any earned but unpaid incentive compensation,\nreimbursement for any unreimbursed expenses in accordance with MAXIMUS’s business expense\nreimbursement policy as well as any accrued and vested benefits to which I am entitled in accordance with the\nterms of MAXIMUS’s various benefit plans, policies and programs. I understand that nothing in this General\nRelease prohibits me from reporting possible violations of federal law or regulation to any governmental\nagency or entity, including but not limited to the Department of Justice, the Securities and Exchange\nCommission, the Congress, and any agency Inspector General, or making other disclosures that are protected\nunder the whistleblower provisions of federal law or regulation.\nI understand that I shall continue to comply with any terms that expressly survive the termination of the\nEmployment Agreement. Likewise, any client non-disclosure agreements signed by me survive the\ntermination of my employment with MAXIMUS, and I shall comply with the terms of those agreements. I\nunderstand that I must have returned as of the Termination Date all originals and copies of MAXIMUS’s\nConfidential Information and other property in my possession or under my control, and that I not make any\nwillful or malicious negative or disparaging remarks regarding the Releasees.\nOlder Worker Benefit Protection Act. In compliance with the Older Worker Benefit Protection Act (“OWBPA”)\nand in providing a release I agree and acknowledge that: (a) I have read the terms of this General Release,\nunderstand its contents, and agree to the terms and conditions set forth in this General Release of my own\nfree will; (b) I have been advised orally and, by this document, in writing of my right to consult with legal\ncounsel prior to executing this General Release; (c) I do not rely on any statement or representation of\nMAXIMUS outside of the Employment Agreement and this document in entering into this General Release;\nand (d) I am not releasing rights or claims under the ADEA that arise after the date this General Release is\nexecuted.\nI understand that I shall have twenty-one (21) calendar days from the Termination Date (the “Consideration\nPeriod”) within which to consider the terms and execute this General Release. I further understand that\nalthough I may take all twenty-one (21) days to consider this General Release, I may execute and provide this\nGeneral Release sooner. I understand that this General Release must be signed no earlier than the\nTermination Date or later than twenty-one (21) days after the Termination Date.\nI acknowledge and understand that I may revoke this General Release within seven (7) calendar days of the\ndate on which I execute this document (the “Revocation Period”), and that should I wish to revoke this General\nRelease, the revocation must be in writing and must be delivered by hand or mail to the General Counsel of\nMAXIMUS within the Revocation Period. I understand that if I revoke by mail, the revocation must be\npostmarked within the Revocation Period, certified mail/return receipt requested, properly addressed as\nfollows:\nMAXIMUS, Inc.\nDavid R. Francis\nGeneral Counsel\n1891 Metro Center Drive\nReston, Virginia 20190\nI understand that if I wish to revoke by hand delivery, the revocation must be delivered to the person and\naddress stated above within the Revocation Period.\nI acknowledge that the Severance will not be paid until the Revocation Period has expired without me\nexercising my right of revocation. If I fail to sign and return this General Release by the end of the\nConsideration Period or if timely revoke it as provided herein, I shall have no right to the Severance.\nThis General Release shall be construed in accordance with Virginia law, without regard to any jurisdiction’s\nprinciples of conflict of laws, except where federal law applies. I understand and agree that if MAXIMUS\nprevails on any action to enforce this General Release, MAXIMUS shall be entitled to recover its reasonable\nlegal fees and costs.\nIN WITNESS WHEREOF, I have executed this General Release as of the date set forth below.\nBRUCE L. CASWELL\nDate:	Exhibit 10.1\nEXECUTIVE EMPLOYMENT, NON-COMPETE\nAND CONFIDENTIALITY AGREEMENT\nTHIS EXECUTIVE EMPLOYMENT, NON-COMPETE AND CONFIDENTIALITY AGREEMENT (this\n"Agreement"), is entered into as of the date set forth on the signature page (the "Execution Date”) by and\nbetween Bruce L. Caswell (the "Executive") and MAXIMUS, Inc., a Virginia corporation with its principal place\nof business in Reston, Virginia (the "Corporation") with reference to the following:\nWHEREAS, the parties entered into that certain Executive Employment, Non-Compete and\nConfidentiality Agreement effective on or about October 1, 2004, which was subsequently amended on\nNovember 20, 2007 (as amended, the "PriorAgreement"); and\nWHEREAS, the parties believe the Executive possesses the experience and capabilities to provide\nvaluable service on behalfofthe Corporation; and\nWHEREAS, the Corporation desires to employ the Executive as its President and Chief Executive\nOfficer; and\nWHEREAS, the Executive desires to be employed by the Corporation at the salary, benefits and other\nterms and conditions specified herein.\nNOW, THEREFORE, in consideration of these premises and for other good and valuable\nconsideration, the receipt and adequacy ofwhich are hereby acknowledged, the parties agree as follows:\n1. E mployment.\n1.1Duties. The Corporation hereby employs the Executive, and the Executive hereby accepts such\nemployment, to serve as the President and Chief Executive Officer. The Executive hereby represents and\nwarrants that he is in good health and capable of performing the services required hereunder. The Executive\nshall perform such services and duties as are appropriate to such office or delegated to the Executive by the\nCorporation’s Board of Directors ("Board”). During the term of this Agreement, the Executive shall be a\nfull-time employee of the Corporation and shall devote such time and attention to the discharge of his duties\nas may be necessary and appropriate to accomplish and complete such duties.\nThe Executive shall be nominated by the Board for election as a director and shall serve, without\nadditional compensation, as a member of the Board, subject to his being so elected by the Corporation's\nstockholders. The Executive agrees to obtain the consent of the Board, which consent may be withheld in the\nBoard’s sole discretion, before serving on the board ofany other entity or organization.\n1.2Compensation.\n(a)Base Salary. As compensation for performance of his obligations hereunder, the Corporation\nshall pay the Executive an annual salary of $700,000 ("Base Salary"), such Base Salary to be\nreviewed annually beginning on or aboutOctober 1, 2018.\n(b)Management Bonus Program. The Executive will be eligible to participate in the\nCorporation's Management Bonus Program ("MBP”), with any awards dependent on the performance\nof the Executive and the Corporation. The target annual cash bonus for the Executive will be one\nhundred percent(100%) ofannual Base Salary foraccomplishing his annual goals.\n(c)Eguity Awards. The Executive shall be eligible to receive awards under the 2017 Equity\nIncentive Plan or any successor plan (the "Equity Plan”) in the discretion of the Corporation's Board of\nDirectors, and shall also be entitled to participate in stock option and similar plans as currently exist or\nmay be established by the Corporation from time to time. The target annual equity award for the\nExecutive will be three hundred seventy-five percent (375%) of annual Base Salary. The Corporation\nagrees to proportionately adjust the Executive’s vested and unvested equity awards in the event the\nCorporation declares an extraordinary dividend during the term hereof. For these purposes, an\n"extraordinary dividend” would be any distribution per share having a value in excess often percent\n(10%) of the average trading price of the Corporation’s common stock during the three-month period\npreceding such distribution. Any Restricted Stock Units or other equity awards made to the Executive\non or after the Effective Date, shall vest according to their stated vesting schedules (or pursuant to the\nacceleration feature in connection with a Change of Control) unless the Executive is terminated for\nCause or voluntarily resigns his employment without Good Reason in which case any unvested\nawards shall be forfeited as ofthe effective date oftermination.\nFor purposes of this Agreement, the terms "Cause,” "Change of Control” and "Good Reason” shall\nhave the meanings set forth in the Corporations Income Continuity Program ("lCP”) in effect as of the\nEffective Date.\n(d)lncome Continuity Program. The Executive shall continue to be a Participant in the lCP. In\nthe event the lCP is subsequently amended or terminated, upon a qualifying termination of Executive’s\nemployment in connection with a Change of Control the Executive shall be entitled to receive the\ngreater of (i) the compensation and benefits payable underthe ICP as it exists on the Effective Date or\n(ii) the compensation and benefits payable under any amended or successor program to the ICP.\n(e)Vacation, Insurance, Expenses, Etc. The Executive shall be entitled to vacation under the\nCorporation’s Executive Time Off policy, and such benefits, health, disability and life insurance and\nother benefits and expense reimbursements in a manner consistent with the Corporation's past\npractices and as are provided to the Corporation’s senior executives.\n(f)Insurance. The Corporation shall maintain the Executive as an insured party on all directors'\nand officers' insurance maintained by the Corporation for the benefit of its directors and officers on at\nleastthe same basis as all other covered individuals and provide the Executive with at leastthe same\ncorporate indemnification as its officers.\n(g)Attorneys’ Fees. The Corporation shall reimburse the Executive for reasonable attorneys’\nfees incurred in connection with the review and negotiation of this Agreement within thirty (30) days\nfollowing the Execution Date, subjectto prior submission ofan invoice therefor.\n1.3Term; Termination. The term of the employment agreement set forth in this Section 1 shall be for a\nperiod commencing atthe Effective Date and continuing forthree (3) years thereafter (the "Scheduled Term").\nFollowing the Scheduled Term, the Agreement shall automatically renew for successive one-year terms (each\na "Renewal Term”) unless either party notifies the other of its desire to terminate the Agreement no less than\nthree (3) months before the expiration of the Scheduled Term or Renewal Term. Notwithstanding the\nforegoing, this Agreement shall terminate:\n(a)by mutual written consent ofthe parties;\n(b)upon Executive's death or inability, by reason of physical or mental impairment, to perform\nsubstantially all of Executive's duties as contemplated herein for a continuous period of 120 days or\nmore; or\n(c)by the Corporation for Cause.\nUpon any termination of employment under this Section 1.3, neither party shall have any obligation to\nthe other pursuant to this Section 1, but such termination shall have no effect on the obligations of the parties\nunder other provisions of this Agreement.\n"Effective Date”sha|l mean April 1, 2018. The PriorAgreementshall remain in full force and effect until\nthe Effective Date, atwhich time it shall automatically terminate without further action by the parties,\n1.4 Severance. The parties agree that in the event (i) the Corporation terminates the Executive's\nemployment without Cause, (ii) the Executive terminates the employment for Good Reason prior to the\nexpiration of the Scheduled Term or then-current Renewal Term, as applicable, or (iii) the Corporation elects\nnot to renew the Agreement for another term, the Executive shall be entitled to receive the following upon the\nexecution of a general release by the Executive in the form attached hereto as ExhibitA, which release shall\nbe executed and irrevocable within thirty (30) days of termination:\n(a)benefits, at the Corporation's expense, as provided under Section 1.2(e) for the greater of\nthe remainder of the current term of the Agreement or twelve (12) months. To the extent that these\npayments are not exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the\n'Code') under the COBRA, reimbursement, in-kind benefit, or other applicable exceptions thereunder,\nsuch payments shall be made at the time and in the amount required under the documents governing\neach such benefit;\n(b)continued vesting ofstock options and Restricted Stock Units in accordance with their stated\nterms; and\n(c) a lump sum, payable within forty-five (45) days following termination ofemployment, equal\nto the greater of (i) Base Salary for the remainder of the Scheduled Term or Renewal Term or (ii) two\ntimes the sum of the Executive's Base Salary plus the lesser of his target bonus or previous year's\nactual bonus, which lump sum shall be considered a separate payment for purposes of Section 409A\nof the Code. lfthe Executive's employment termination occurs in connection with a Change in Control,\nthe Executive shall be entitled to receive such payments and benefits as provided under the Income\nContinuity Plan, and this Section 1.4 shall notapply.\n2. Restrictions on Competition and Solicitation.\n2.1.P rohibited Activities.\na.The Executive agrees that, during his employment with the Corporation and for a period of\none (1) year after the termination of such employment for any reason, the Executive, anywhere in the\nUnited States or in any other country orjurisdiction where the Corporation conducts business as of the\ntime ofsuch termination:\ni.wi|| not whether as a principal, investor, owner, executive, consultant, independent\ncontractor, officer, director, board member, manager, partner, agent, or otherwise, alone or in\nassociation with any other person, firm, corporation, or business organization, work for,\nbecome employed by, engage in, carry on, provide services to, or assist in any manner\n(whether or not for compensation or gain) an entity in competition with the Corporation, where\nthe Executive’s position or service for such entity is competitive with any of the Executive’s\npositions or services thatthe Executive performed forthe Corporation;\nii. will not contact any of the Corporation’s Customers or Potential Customers or solicit\nor induce (or attempt to solicit or induce) any of them to not conduct business with the\nCorporation, or to conduct business with or contract with any other person or entity instead of\nthe Corporation. For purposes of this Agreement, "Customers or Potential Customers”\nmeans all persons, companies, firms, or entities that have, within the twelve (12) months prior\nto the Executive’s termination of employment: (A) obtained the Corporation’s services, (B)\ncontacted the Corporation for the purpose of obtaining the Corporation’s services, or (C) been\nactively solicited by the Corporation for the purpose of providing its services; and for which the\nExecutive provided services or about which the Executive had access to and knowledge of\nproprietary information;\niii.will not, directly or indirectly, contact, solicit or induce (or attempt to solicit or induce)\nany of the Corporation Personnel to leave their employment with the Corporation or consider\nemployment with any other person or entity. For purposes of this Agreement, the "Corporation\nPersonnel” shall mean any employee or service provider ofthe Corporation who worked for the\nCorporation during Executive’s employment and with whom the Executive worked personally or\nknew personally or who was known by the Executive to have unique knowledge or skills that\ncould cause competitive harm to the Corporation;\niv. will not, directly or indirectly, hire or cause to be hired (or engage or cause to be\nengaged as an independent contractor) any such Corporation Personnel; and\nv.Executive agrees thatthe restrictions set forth in this Section 2.1, in light of the access\nto client, proprietary and other confidential information that the Corporation provides to\nExecutive, are reasonable and necessary in orderto protect the legitimate business interests of\nthe Corporation. Executive agrees thatthe duration of the restrictions set forth in this paragraph\nshall be extended by the duration ofany period in which Executive is in violation ofany ofthose\nrestrictions. The existence of any other claim by Executive against the Corporation, whether\nbased on this Agreement or otherwise, will not constitute a defense to the enforcement of this\nAgreement by the Corporation.\nb.The Executive shall notify any new employer, partner, association or any other firm or\ncorporation in competition with the Corporation with whom the Executive shall become associated in\nany capacity whatsoever of the provisions of this Section 2 and the Executive agrees that the\nCorporation may give such notice to such firm, corporation or other person.\n2.2.Business Opportunities; Conflicts of Interest; Other Employment and Activities ofthe Executive.\na.The Executive agrees promptly to advise the Corporation of, and provide the Corporation with\nan opportunity to pursue, all business opportunities that reasonably relate to the present business\nconducted by the Corporation.\nb.The Executive, in his capacity as an employee of the Corporation, shall not engage in any\nbusiness with any member of the Executive's immediate family or with any person or business entity in\nwhich the Executive or any member ofthe Executive's immediate family has any ownership interest or\nfinancial interest, unless and until the Executive has first fully disclosed such interest to and received\nwritten consent from the Board of Directors. As used herein, the term "immediate family" means the\nExecutive's spouse, natural or adopted children, parents or siblings and the term "financial interest"\nmeans any relationship with such person or business entity that may monetarily benefit the Executive\nor member of the Executive's immediate family, including any lending relationship orthe guarantying of\nany obligations ofsuch person or business entity by the Executive or member of his immediate family.\nc.The parties hereto agree thatthe Executive may, consistent with this Section 2.2, receive and\nretain speaking fees, referral fees from business opportunities notaccepted by the\nCorporation, and fees from outside business activities and opportunities of the Executive consented to\nby the Board of Directors.\n3.Confidentiality. The Executive agrees that the Corporation's books, records, files and all other non-public\ninformation relating to the Corporation, its business, clients and employees are proprietary in nature and\ncontain trade secrets and shall be held in strict confidence by the Executive, and shall not, either during the\nterm of this Agreement or afterthe termination hereof, be used by Executive or disclosed, directly or indirectly,\nto any third party, except to the extent such use or disclosure is in furtherance ofthe Corporation's business or\nrequired by any law, rule, regulation or other legal process. The trade secrets or other proprietary or\nconfidential information referred to in the prior sentence includes, without limitation, all proposals to clients or\npotential clients, contracts, client or potential client lists, fee policies, financial information, administration or\nmarketing practices or procedures and all other information regarding the business of the Corporation and its\nclients not generally known to the public.\n4.Miscellaneous.\n4.1.Notices. All notices, requests, demands or other communications provided for in this Agreement\nshall be in writing and shall be delivered by hand, sent prepaid by overnight delivery service or sent by the\nUnited States mail, certified, postage prepaid, return receipt request, to the following:\nlfto the Corporation:\nMAXIMUS, Inc.\n1891 Metro Center Drive\nReston, Virginia 20190\nAttention: General Counsel\nlfto the Executive:\nBruce L. Caswell\nWith a copy (not constituting notice) to:\nWilliams & Connolly LLP\n725 Twelfth Street, NW\nWashington, DC 20005\nAttention: Deneen C. Howell, Esq.\nAny notice, request, demand or other communication delivered or sent in the foregoing manner shall be\ndeemed given or made (as the case may be) upon the earliest of (i) the date it is actually received, (ii) the\nbusiness-day after the day on which it is delivered by hand, (iii) the business day after the day on which it is\nproperly delivered to Federal Express (or a comparable overnight delivery service), or (iv) the third business\nday after the date on which it is deposited in the United States mail. Either party may change its address by\nnotifying the other party ofthe new address in any manner permitted by this paragraph.\n4.2.Remedies. The parties agree and acknowledge that any violation by the Executive of the terms\nhereof may result in irreparable injury and damage to the Corporation or its clients, which may not adequately\nbe compensable in monetary damages, that the Corporation will have no adequate remedy at law therefor,\nand that the Corporation may obtain such preliminary, temporary or permanent mandatory or restraining\ninjunctions, orders or decrees as may be necessary to protect it against, or on account of, any breach of the\nprovisions contained in this Agreement.\n4.3.No Obligation of Continued Employment. The Executive understands that this Agreement does not\ncreate an obligation on the part of the Corporation to continue the Executive's employment with the\nCorporation after the expiration or termination ofthis Agreement.\n4.4.Benefit; Assignment. This Agreement shall bind and inure to the benefit of the parties and their\nrespective personal representatives, heirs, successors and assigns, provided this Agreement may not be\nassigned by either party without the consent of the other, except that the Corporation may assign this\nAgreement in connection with the merger, consolidation or sale of all or substantially all of its business or\nassets.\n4.5.Entire Agreement. This Agreement supersedes all previous agreements, written or oral, with\nrespect to the subject matter of this Agreement otherthan the PriorAgreement, which shall remain in full force\nand effect until the Effective Date.\n4.6.Severability. In the event that any one or more of the provisions contained herein shall be held to\nbe invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect\nany other provisions of this Agreement, and all other provisions shall remain in full force and effect. If any of\nthe provisions ofthis Agreement is held to be excessively broad, it shall be reformed and construed by limiting\nand reducing itso as to be enforceable to the maximum extent permitted by law.\n4.7.Waivers. No delay or omission by either party in exercising any right under this Agreement will\noperate as a waiver of that or any other right. A waiver or consent given by either party on any occasion is\neffective only in that instance and will not be construed as a bar to or waiver of any right on any other\noccasion.\n4.8.Captions. The captions of the various sections and paragraphs of this Agreement have been\ninserted only for the purpose ofconvenience; such captions are not a part of this Agreement and shall not be\ndeemed in any mannerto modify, explain, enlarge or restrict any ofthe provisions of this Agreement.\n4.9.Governing Law and |urisdiction. This Agreement shall in all events and for all purposes be\ngoverned by, and construed in accordance with, the laws of the Commonwealth of Virginia. Any action or\nproceeding against the parties relating in any way to this Agreement must be brought and enforced in the\ncourts of Fairfax County, Virginia or the Eastern District ofVirginia, and the parties irrevocably submit to the\njurisdiction ofsuch courts in respect ofany such action or proceeding.\n4.10.Amendments. No changes to this Agreementshall be binding unless in writing and signed by both\nthe parties.\n4.11.Counterparts. This Agreement may be executed in several counterparts (including via facsimile\nand the electronic exchange of .pdf copies), each of which shall be deemed an original, and all such\ncounterparts shall constitute one instrument.\n4.12. Distributions to Specified Employees. Notwithstanding any provision to the contrary, to the\nextent the Executive is considered a specified employee under Section 409A of the Code and would be\nentitled to a payment during the six month period beginning on the Executive's date of termination that is not\notherwise excluded under Section 409A of the Code under the exceptions for short-term deferrals, separation\npay arrangements, reimbursements, in-kind distributions, or an otherwise applicable exemption, the payment\nwill not be made to the Executive until the earlier of the six month anniversary of the Executive's date of\ntermination orthe Executive's death.\n4.13. Section 409A of the Code. It is the intention of the parties that this Agreement comply with and\nbe administered in accordance with Section 409A of the Code and the interpretive guidance thereunder,\nincluding the exceptions for short-term deferrals, separation pay arrangements, reimbursements, and in-\nkind distributions. The Agreement shall be construed and interpreted in accordance with such intent. To the\nextent such potential payments or benefits could become subject to such Section, the parties shall cooperate\nto amend this Agreement with the goal of giving the Executive the economic benefits described herein in a\nmanner that does not result in such tax being imposed. In the event that the Corporation does not so\ncooperate, the Corporation shall indemnify the Executive for any interest and additional tax arising from the\napplication of Section 409A of the Code, grossed-up for any other income tax incurred by Executive related to\nthe indemnification (i.e., indemnification ofsuch additional income tax), assuming the highest marginal income\ntax rates apply to any taxable indemnification. Any indemnification payment shall be made within ninety (90)\ndays ofthe date Executive makes payment ofthe interest and/or additional tax.\nTHE EXECUTIVE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND THE\nEXECUTIVE UNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. THE EXECUTIVE\nUNDERSTANDS THAT THIS AGREEMENT MAY AFFECT THE EXECUTIVE'S RIGHT TO ACCEPT\nEMPLOYMENT WITH OTHER COMPANIES SUBSEQUENT TO THE EXECUTIVE'S EMPLOYMENT WITH\nTHE CORPORATION.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set forth\nbelow.\nEXECUTIVE MAXIMUS, Inc.\n/s/ Bruce L. Caswell By /s/ David R. Francis\nBruce L. Caswell\nDate January 10, 2018 Title General Counsel\nEXHIBITA\nGENERAL RELEASE OF CLAIMS\nIn consideration of the Severance ("Severance”) to be provided to me under Section 1.4 of that certain\nExecutive Employment, Non-Compete and Confidentiality Agreement between me and MAXIMUS, Inc.\n("MAXIMUS”) effective April 1, 2018 (the "Employment Agreement”), and intending to be legally bound, I\nagree as follows:\nGeneral Release and Waivers. I release MAXIMUS and its affiliated entities and their respective officers,\ndirectors, partners, owners, executives, contractors, clients, agents, representatives, administrators of any\nMAXIMUS benefit plan, predecessors, successors and assigns (the "Releasees”) from any and all individual\nor class action claims, actions, rights, demands, debts, damages, grievances or accountings of whatever\nnature, whether known or unknown, currently existing or arising in the future, thatl have or may have against\nthe Releasees relating in any way to my employment with MAXIMUS or the termination thereof, including,\nwithout limitation, claims under the Age Discrimination in EmploymentAct, Older Workers Benefit Protection\nAct, Title VII of the Civil Rights Act of 1964, Worker Adjustment and Retraining Notification Act, Family and\nMedical Leave Act, Americans with Disabilities Act, Fair Credit Reporting Act, Sarbanes-Oxley Act,\nImmigration Reform and Control Act, Occupational Safety and Health Act, and all other federal, state or local\nlaws or any other statute, rule, regulation or executive order precluding discrimination or retaliation in\nemployment, claims for breach of contract, wrongful discharge, personal injuries or torts, defamation, and all\nother claims whether known or unknown, arising through the date of execution of this General Release of\nClaims ("General Release”) by me, excepting only those matters set forth in this General Release.\nExcluded from this General Release are: (i) any claim or right which cannot be waived by law, including\nwithout limitation, all claims arising after the date of this Agreement, claims for unemployment compensation,\nand claims for worker compensation benefits; (ii) claims under the Fair Labor Standards Act; (iii) the right to\nfile a charge with or participate in an investigation conducted by an administrative agency, provided I am\nwaiving, however, any right to any monetary recovery if any administrative agency pursues any claim or\nclaims on my behalfwith the exception of monetary recovery for Securities and Exchange Commission claims;\n(iv) any indemnification obligations of MAXIMUS to me pertaining to the period prior to the date of my\ntermination of employment ('Termination Date”) in my capacity as a director or officer under the articles of\nincorporation, by-laws or other organizational documents of MAXIMUS and its affiliated entities; (v) to the\nextent pertaining to the period prior to the Termination Date, the obligations of any insurer (other than\nMAXIMUS and its affiliated entities, including with respect to self-insurance) under any insurance policy for\nevents, acts or omissions for directors or officers of MAXIMUS and its affiliated entities; and (vi) my right to all\nearned but unpaid base salary through the Termination Date, any earned but unpaid incentive compensation,\nreimbursement for any unreimbursed expenses in accordance with MAXIMUS’s business expense\nreimbursement policy as well as any accrued and vested benefits to which I am entitled in accordance with the\nterms of MAXIMUS’s various benefit plans, policies and programs. I understand that nothing in this General\nRelease prohibits me from reporting possible violations of federal law or regulation to any governmental\nagency or entity, including but not limited to the Department of Justice, the Securities and Exchange\nCommission, the Congress, and any agency Inspector General, or making other disclosures thatare protected\nunder the whistleblower provisions of federal law or regulation.\nI understand that I shall continue to comply with any terms that expressly survive the termination of the\nEmployment Agreement. Likewise, any client non-disclosure agreements signed by me survive the\ntermination of my employment with MAXIMUS, and I shall comply with the terms of those agreements. I\nunderstand that I must have returned as of the Termination Date all originals and copies of MAXIMUS’s\nConfidential Information and other property in my possession or under my control, and that I not make any\nwillful or malicious negative ordisparaging remarks regarding the Releasees.\nOlder Worker Benefit Protection Act. In compliance with the Older Worker Benefit Protection Act (“OWBPA”)\nand in providing a release I agree and acknowledge that: (a) I have read the terms of this General Release,\nunderstand its contents, and agree to the terms and conditions set forth in this General Release of my own\nfree will; (b) l have been advised orally and, by this document, in writing of my right to consult with legal\ncounsel prior to executing this General Release; (c) I do not rely on any statement or representation of\nMAXIMUS outside of the Employment Agreement and this document in entering into this General Release;\nand (d) I am not releasing rights or claims under the ADEA that arise after the date this General Release is\nexecuted.\nI understand that I shall have twenty-one (21) calendar days from the Termination Date (the "Consideration\nPeriod”) within which to consider the terms and execute this General Release. I further understand that\nalthough I may take all twenty-one (21) days to considerthis General Release, I may execute and provide this\nGeneral Release sooner. I understand that this General Release must be signed no earlier than the\nTermination Date or laterthan twenty-one (21) days afterthe Termination Date.\nI acknowledge and understand thatl may revoke this General Release within seven (7) calendar days of the\ndate on which I execute this document (the "Revocation Period”), and that should I wish to revoke this General\nRelease, the revocation must be in writing and must be delivered by hand or mail to the General Counsel of\nMAXIMUS within the Revocation Period. I understand that if I revoke by mail, the revocation must be\npostmarked within the Revocation Period, certified mail/return receipt requested, properly addressed as\nfollows:\nMAXIMUS, Inc.\nDavid R. Francis\nGeneral Counsel\n1891 Metro Center Drive\nReston, Virginia 20190\nI understand that if I wish to revoke by hand delivery, the revocation must be delivered to the person and\naddress stated above within the Revocation Period.\nI acknowledge that the Severance will not be paid until the Revocation Period has expired without me\nexercising my right of revocation. If I fail to sign and return this General Release by the end of the\nConsideration Period or if timely revoke it as provided herein, I shall have no right to the Severance.\nThis General Release shall be construed in accordance with Virginia law, without regard to any jurisdiction’s\nprinciples of conflict of laws, except where federal law applies. I understand and agree that if MAXIMUS\nprevails on any action to enforce this General Release, MAXIMUS shall be entitled to recover its reasonable\nlegal fees and costs.\nIN WITNESS WHEREOF, I have executed this General Release as of the date setforth below.\nBRUCE L. CASWELL\nDate:	xhibit 10.1\nEXECUTIVE EMPLOYMENT, NON-COMPETE\nAND CONFIDENTIALITY AGREEMENT\nTHIS EXECUTIVE EMPLOYMENT, NON-COMPETE AND CONFIDENTIALITY AGREEMENT (this\n"Agreement"), is entered into as of the date set forth on the signature page (the "Execution Date") by and\nbetween Bruce L. Caswell (the "Executive") and MAXIMUS, Inc., a Virginia corporation with its principal place\nof business in Reston, Virginia (the "Corporation") with reference to the following:\nWHEREAS, the parties entered into that certain Executive Employment, Non-Compete and\nConfidentiality Agreement effective on or about October 1, 2004, which was subsequently amended on\nNovember 20, 2007 (as amended, the "Prior Agreement"); and\nWHEREAS, the parties believe the Executive possesses the experience and capabilities to provide\nvaluable service on behalf of the Corporation; and\nWHEREAS, the Corporation desires to employ the Executive as its President and Chief Executive\nOfficer; and\nWHEREAS, the xecutive desires to be employed by the Corporation at the salary, benefits and other\nterms and conditions specified herein.\nNOW, THEREFORE, in consideration of these premises and for other good and valuable\nconsideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:\n1.\nEmployment.\n1.1Duties. The Corporation hereby employs the Executive, and the Executive hereby accepts such\nemployment, to serve as the President and Chief Executive Officer. The Executive hereby represents and\nwarrants that he is in good health and capable of performing the services required hereunder. The Executive\nshal perform such services and duties as are appropriate to such office or delegated to the Executive by the\nCorporation's Board of Directors ("Board"). During the term of this Agreement, the Executive shall be a\nfull-time employee of the Corporation and shall devote such time and attention to the discharge of his duties\nas may be necessary and appropriate to accomplish and complete such duties.\nThe Executive shall be nominated by the Board for election as a director and shall serve, without\nadditional compensation, as a member of the Board, subject to his being so elected by the Corporation's\nstockholders. The E xecutive agrees to obtain the consent of the Board, which consent may be withheld in the\nBoard's sole discretion, before serving on the board of any other entity or organization.\nCompensation\na)Base Salary. As compensation for performance of his obligations hereunder, the Corporation\nshall pay the Executive an annual salary of $700,000 ("Base Salary"), such Base Salary to be\nreviewed annually beginning on or about October 1, 2018.\n(b)Management Bonus Program. The Executive will be eligible to participate in the\nCorporation's Management Bonus Program ("MBP"), with any awards dependent on the performance\nof the Executive and the Corporation. The target annual cash bonus for the Executive will be one\nhundred percent (100%) of annual Base Salary for accomplishing his annual goals.\nquity Awards. The Executive shall be eligible to receive awards under the 2017 quity\nIncentive\nPlan\nor\nany\nsuccessor\nplan\n(the\n"Equity\nPlan")\nin\nthe\ndiscretion\nof\nthe\nCorporation's\nBoard\nof\nDirectors, and shall also be entitled to participate in stock option and similar plans as currently exist or\nmay be established by the Corporation from time to time. The target annua equity award for the\nExecutive will be three hundred seventy-five percent (375%) of annual Base Salary. The Corporation\nagrees to proportionately adjust the xecutive's vested and unvested equity awards in the event the\nCorporation declares an extraordinary dividend during the term hereof. For these purposes, an\n"extraordinary dividend" would be any distribution per share having a value in excess of ten percent\n(10%) of the average trading price of the Corporation's common stock during the three-month period\npreceding such distribution. Any Restricted Stock Units or other equity awards made to the Executive\non or after the Effective Date, shall vest according to their stated vesting schedules (or pursuant to the\nacceleration feature in connection with a Change of Control) unless the Executive is terminated for\nCause\nor\nvoluntarily\nresigns\nhis\nemployment\nwithout\nGood\nReason\nin\nwhich\ncase\nany\nunvested\nawards shall be forfeited as of the effective date of termination.\nFor purposes of this Agreement, the terms "Cause," "Change of Control" and "Good Reason" shal\nhave the meanings set forth in the Corporations Income Continuity Program ("ICP") in effect as of the\nEffective Date.\n(d)income Continuity Program. The Executive shal continue to be a Participant in the ICP. In\nthe event the ICP is subsequently amended or terminated, upon a qualifying termination of Executive's\nemployment in connection with a Change of Control the Executive shall be entitled to receive the\ngreater of (i) the compensation and benefits payable under the ICP as it exists on the Effective Date or\n(ii) the compensation and benefits payable under any amended or successor program to the ICP.\n(e)Vacation, Insurance, Expenses, Etc. The Executive shall be entitled to vacation under the\nCorporation's Executive Time Off policy, and such benefits, health, disability and life insurance and\nother benefits and expense reimbursements in a manner consistent with the Corporation's past\npractices and as are provided to the Corporation's senior executives.\n(f)insurance. The Corporation shall maintain the Executive as an insured party on all directors'\nand officers' insurance maintained by the Corporation for the benefit of its directors and officers on at\nleast the same basis as all other covered individuals and provide the Executive with at least the same\ncorporate indemnification as its officers.\ng)Attorneys' Fees. The Corporation shall reimburse the Executive for reasonable attorneys'\nfees incurred in connection with the review and negotiation of this Agreement within thirty (30) days\nfollowing the Execution Date, subject to prior submission of an invoice therefor.\n1.3Term; Termination. The term of the employment agreement set forth in this Section 1 shall be for a\nperiod commencing at the Effective Date and continuing for three (3) years thereafter (the Scheduled Term").\nollowing the Scheduled Term, the Agreement shall automatically renew for successive one-year terms (each\na "Renewal Term") unless either party notifies the other of its desire to terminate the Agreement no less than\nthree (3) months before the expiration of the Scheduled Term or Renewal Term. Notwithstanding the\nforegoing, this Agreement shall terminate:\n(a)by mutual written consent of the parties;\n(b)upon Executive's death or inability, by reason of physical or mental impairment, to perform\nsubstantially all of Executive's duties as contemplated herein for a continuous period of 120 days or\nmore; or\n(c)by the Corporation for Cause.\nUpon any termination of employment under this Section 1.3, neither party shall have any obligation to\nthe other pursuant to this Section 1, but such termination shall have no effect on the obligations of the parties\nunder other provisions of this Agreement.\nEffective Date" shall mean April 1, 2018. The Prior Agreement shal remain in full force and effect until\nthe ffective Date, at which time it shall automatically terminate without further action by the parties,\n1.4 Severance. The parties agree that in the event (i) the Corporation terminates the Executive's\nemployment without Cause, (ii) the Executive terminates the employment for Good Reason prior to the\nexpiration of the Scheduled Term or then-current Renewal Term, as applicable, or (iii) the Corporation elects\nnot to renew the Agreement for another term, the Executive shall be entitled to receive the following upon the\nexecution of a genera release by the Executive in the form attached hereto as Exhibit A, which release shall\nbe executed and irrevocable within thirty (30) days of termination:\n(a)benefits, at the Corporation's expense, as provided under Section 1.2(e) for the greater of\nthe remainder of the current term of the Agreement or twelve (12) months. To the extent that these\npayments are not exempt from Section 409A of the Internal Revenue Code of 1986, as amended\n(the\n'Code') under the COBRA, reimbursement, in-kind benefit, or other applicable exceptions thereunder,\nsuch payments shall be made at the time and in the amount required under the documents governing\neach such benefit;\n(b)continued vesting of stock options and Restricted Stock Units in accordance with their stated\nterms; and\n(c) a lump sum, payable within forty-five (45) days following termination of employment, equal\nto the greater of (i) Base Salary for the remainder of the Scheduled Term or Renewal Term or (ii) two\ntimes the sum of the Executive's Base Salary plus the lesser of his target bonus or previous year's\nactual bonus, which lump sum shal be considered a separate payment for purposes of Section 409A\nof the Code. if the E xecutive's employment termination occurs in connection with a Change in Control,\nthe Executive shal be entitled to receive such payments and benefits as provided under the Income\nContinuity lan, and this Section 1.4 shall not apply.\n2.\nRestrictions on Competition and Solicitation.\n2.1. rohibited Activities.\na.The Executive agrees that, during his employment with the Corporation and for a period of\none\n(1)\nyear\nafter\nthe\ntermination\nof\nsuch\nemployment\nfor\nany\nreason,\nthe\nExecutive,\nanywhere\nin\nthe\nUnited States or in any other country or jurisdiction where the Corporation conducts business as of the\ntime of such termination:\ni.will not whether as a principal, investor, owner, executive, consultant, independent\ncontractor, officer, director, board member, manager, partner, agent, or otherwise, alone or in\nassociation with any other person, firm, corporation, or business organization, work for,\nbecome employed by, engage in, carry on, provide services to, or assist in any manner\n(whether or not for compensation or gain) an entity in competition with the Corporation, where\nthe Executive's position or service for such entity is competitive with any of the Executive's\npositions or services that the Executive performed for the Corporation;\nii. will not contact any of the Corporation's Customers or Potential Customers or solicit\nor induce (or attempt to solicit or induce) any of them to not conduct business with the\nCorporation, or to conduct business with or contract with any other person or entity instead of\nthe Corporation. For purposes of this Agreement, "Customers or Potential Customers"\nmeans all persons, companies, firms, or entities that have, within the twelve (12) months prior\nto\nthe\nExecutive's\ntermination\nof\nemployment:\n(A)\nobtained\nthe\nCorporation's\nservices,\n(B)\ncontacted the Corporation for the purpose of obtaining the Corporation's services, or (C) been\nactively solicited by the Corporation for the purpose of providing its services; and for which the\nExecutive provided services or about which the Executive had access to and knowledge of\nproprietary information;\nii.will not, directly or indirectly, contact, solicit or induce (or attempt to solicit or induce)\nany of the Corporation Personnel to leave their employment with the Corporation or consider\nemployment with any other person or entity. For purposes of this Agreement, the "Corporation\nPersonnel" shall mean any employee or service provider of the Corporation who worked for the\nCorporation\nduring\nExecutive's\nemployment\nand\nwith\nwhom\nthe\nxecutive\nworked\npersonally\nor\nknew personally or who was known by the Executive to have unique knowledge or skills that\ncould cause competitive harm to the Corporation;\niv. will not, directly or indirectly, hire or cause to be hired (or engage or cause to be\nengaged as an independent contractor) any such Corporation Personnel; and\nV.E xecutive agrees that the restrictions set forth in this Section 2.1, in light of the access\nto client, proprietary and other confidential information that the Corporation provides to\nExecutive, are reasonable and necessary in order to protect the legitimate business interests of\nthe Corporation. Executive agrees that the duration of the restrictions set forth in this paragraph\nshal be extended by the duration of any period in which Executive is in violation of any of those\nrestrictions. The existence of any other claim by Executive against the Corporation, whether\nbased on this Agreement or otherwise, will not constitute a defense to the enforcement of this\nAgreement by the Corporation.\n.The Executive shall notify any new employer, partner, association or any other firm or\ncorporation in competition with the Corporation with whom the Executive shall become associated in\nany capacity whatsoever of the provisions of this Section 2 and the Executive agrees that the\nCorporation may give such notice to such firm, corporation or other person.\n2.Business Opportunities; Conflicts of Interest; Other mployment and Activities of the Executive.\na.The Executive agrees promptly to advise the Corporation of, and provide the Corporation with\nan opportunity to pursue, all business opportunities that reasonably relate to the present business\nconducted by the Corporation.\n.The Executive, in his capacity as an employee of the Corporation, shall not engage in any\nbusiness with any member of the Executive's immediate family or with any person or business entity in\nwhich the E xecutive or any member of the Executive's immediate family has any ownership interest or\nfinancial interest, unless and unti the Executive has first fully disclosed such interest to and received\nwritten\nconsent\nfrom\nthe\nBoard\nof\nDirectors.\nAs\nused\nherein,\nthe\nterm\n"immediate\nfamily"\nmeans\nthe\nExecutive's spouse, natural or adopted children, parents or siblings and the term "financial interest"\nmeans any relationship with such person or business entity that may monetarily benefit the Executive\nor member of the Executive's immediate family, including any lending relationship or the guarantying\nof\nany obligations of such person or business entity by the Executive or member of his immediate family.\nc.The parties hereto agree that the Executive may, consistent with this Section 2.2, receive and\nretain speaking fees, referral fees from business opportunities not accepted by the\nCorporation, and fees from outside business activities and opportunities of the Executive consented to\nby the Board of Directors.\nB.Confidentiality. The Executive agrees that the Corporation's books, records, files and all other non-public\ninformation relating to the Corporation, its business, clients and employees are proprietary in nature and\ncontain trade secrets and shall be held in strict confidence by the Executive, and shall not, either during the\nterm of this Agreement or after the termination hereof, be used by xecutive or disclosed, directly or indirectly,\nto any third party, except to the extent such use or disclosure is in furtherance of the Corporation's business or\nrequired\nby any law, rule, regulation or other legal process. The trade secrets or other proprietary or\nconfidential information referred to in the prior sentence includes, without limitation, all proposals to clients or\npotential clients, contracts, client or potential client lists, fee policies, financial information, administration or\nmarketing practices or procedures and all other information regarding the business of the Corporation and its\nclients not generally known to the public.\n4.Miscellaneous.\n4.1. Notices. All notices, requests, demands or other communications provided for in this Agreement\nshall be in writing and shall be delivered by hand, sent prepaid by overnight delivery service or sent by the\nUnited States mail, certified, postage prepaid, return receipt request, to the following:\nIf to the Corporation:\nMAXIMUS, Inc.\n1891 Metro Center Drive\nReston, Virginia 20190\nAttention: General Counsel\nIf to the Executive:\nBruce L. Caswell\nWith a copy (not constituting notice) to:\nWilliams & Connolly LLP\n725 Twelfth Street, NW\nWashington, DC 20005\nAttention: Deneen C. Howell, Esq.\nAny notice, request demand or other communication delivered or sent in the foregoing manner shall be\ndeemed given or made (as the case may be) upon the earliest of (i) the date it is actually received, (ii) the\nbusiness-day after the day on which it is delivered by hand, (iii) the business day after the day on which it is\nproperly\ndelivered\nto\nFedera\nExpress\n(or\na\ncomparable\novernight\ndelivery\nservice),\nor\n(iv)\nthe\nthird\nbusiness\nday after the date on which it is deposited in the United States mail. ither party may change its address by\nnotifying the other party of the new address in any manner permitted by this paragraph.\n4.2. Remedies. The parties agree and acknowledge that any violation by the Executive of the terms\nhereof may result in irreparable injury and damage to the Corporation or its clients, which may not adequately\nbe compensable in monetary damages, that the Corporation will have no adequate remedy at law therefor,\nand\nthat\nthe\nCorporation may obtain such preliminary, temporary or permanent mandatory or restraining\ninjunctions, orders or decrees as may be necessary to protect it against, or on account of, any breach of the\nprovisions contained in this Agreement.\n4.3.No Obligation of Continued Employment. The xecutive understands that this Agreement does not\ncreate an obligation on the part of the Corporation to continue the Executive's employment with the\nCorporation after the expiration or termination of this Agreement.\n.Benefit; Assignment. This Agreement shall bind and inure to the benefit of the parties and their\nrespective\npersonal\nrepresentatives,\nheirs,\nsuccessors\nand\nassigns,\nprovided\nthis\nAgreement\nmay\nnot\nbe\nassigned by either party without the consent of the other, except that the Corporation may assign this\nAgreement in connection with the merger, consolidation or sale of all or substantially all of its business or\nassets.\n4.5.E ntire Agreement. This Agreement supersedes all previous agreements, written or oral, with\nrespect to the subject matter of this Agreement other than the rior Agreement, which shall remain in ful force\nand effect unti the Effective Date.\n4.6.S Severability. In the event that any one or more of the provisions contained herein shall be held to\nbe invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect\nany other provisions of this Agreement, and all other provisions shall remain in full force and effect if any of\nthe provisions of this Agreement is held to be excessively broad, it shall be reformed and construed by limiting\nand reducing it so as to be enforceable to the maximum extent permitted by law.\n7.Waivers. No delay or omission by either party in exercising any right under this Agreement will\noperate as a waiver of that or any other right A waiver or consent given by either party on any occasion is\neffective only in that instance and will not be construed as a bar to or waiver of any right on any other\noccasion.\n8.Captions. The captions of the various sections and paragraphs of this Agreement have been\ninserted only for the purpose of convenience; such captions are not a part of this Agreement and shall not be\ndeemed in any manner to modify, explain, enlarge or restrict any of the provisions of this Agreement.\n.9.Governing Law and urisdiction This Agreement shall in all events and for all purposes be\ngoverned by, and construed in accordance with, the laws of the Commonwealth of Virginia Any action or\nproceeding against the parties relating in any way to this Agreement must be brought and enforced in the\ncourts\nof Fairfax County, Virginia or the Eastern District of Virginia, and the parties irrevocably submit to the\njurisdiction of such courts in respect of any such action or proceeding.\n.10.Amendments. No changes to this Agreement shall be binding unless in writing and signed by both\nthe parties.\n.11.Counterparts. This Agreement may be executed in several counterparts (including via facsimile\nand the electronic exchange of .pdf copies), each of which shall be deemed an original, and all such\ncounterparts shal constitute one instrument.\n4.12. Distributions to Specified Employees. Notwithstanding any provision to the contrary, to the\nextent the Executive is considered a specified employee under Section 409A of the Code and would be\nentitled to a payment during the six month period beginning on the Executive's date of termination that is not\notherwise excluded under Section 409A of the Code under the exceptions for short-term deferrals, separation\npay arrangements, reimbursements, in-kind distributions, or an otherwise applicable exemption, the payment\nwill not be made to the Executive until the earlier of the six month anniversary of the Executive's date of\ntermination or the E xecutive's death.\n4.13. Section 409A of the Code. It is the intention of the parties that this Agreement comply with and\nbe administered in accordance with Section 409A of the Code and the interpretive guidance thereunder,\nincluding the exceptions for short-term deferrals, separation pay arrangements, reimbursements, and in-\nkind distributions. The Agreement shall be construed and interpreted in accordance with such intent. To the\nextent such potential payments or benefits could become subject to such Section, the parties shall cooperate\nto amend this Agreement with the goa of giving the Executive the economic benefits described herein in a\nmanner that does not result in such tax being imposed. In the event that the Corporation does not so\ncooperate, the Corporation shall indemnify the Executive for any interest and additional tax arising from the\napplication of Section 409A of the Code, grossed-up for any other income tax incurred by Executive related to\nthe\nindemnification (i.e., indemnification of such additiona income tax), assuming the highest marginal income\ntax rates apply to any taxable indemnification. Any indemnification payment shall be made within ninety (90)\ndays of the date Executive makes payment of the interest and/or additional tax.\nTHE EXECUTIVE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND THE\nEXECUTIVE UNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. THE EXECUTIVE\nUNDERSTANDS THAT THIS AGREEMENT MAY AFFECT THE EXECUTIVE'S RIGHT TO ACCEPT\nEMPLOYMENT WITH OTHER COMPANIES SUBSEQUENT TO THE EXECUTIVE'S EMPLOYMENT WITH\nTHE CORPORATION.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set forth\nbelow.\nEXECUTIVE\nMAXIMUS, Inc.\n/s/ Bruce L. Caswell\nBy /s/ David R. Francis\nBruce L. Caswell\nDate J anuary 10, 2018\nTitle General Counsel\nEXHIBIT A\nGENERAL RELEASE OF CLAIMS\nIn consideration of the Severance ("Severance") to be provided to me under Section 1.4 of that certain\nExecutive Employment, Non-Compete and Confidentiality Agreement between me and MAXIMUS, Inc.\n("MAXIMUS") effective April 1, 2018 (the Employment Agreement"), and intending to be legally bound,\nI\nagree as follows:\nGeneral Release and Waivers. I release MAXIMUS and its affiliated entities and their respective officers,\ndirectors,\npartners,\nowners,\nexecutives,\ncontractors,\nclients,\nagents,\nrepresentatives,\nadministrators\nof\nany\nMAXIMUS benefit plan, predecessors, successors and assigns (the "Releasees") from any and all individual\nor class action claims, actions, rights, demands, debts, damages, grievances or accountings of whatever\nnature, whether known or unknown, currently existing or arising in the future, that have or may have against\nthe Releasees relating in any way to my employment with MAXIMUS or the termination thereof, including,\nwithout limitation, claims under the Age Discrimination in Employment Act, Older Workers Benefit rotection\nAct, Title VII of the Civil Rights Act of 1964, Worker Adjustment and Retraining Notification Act, Family and\nMedical Leave Act, Americans with Disabilities Act, Fair Credit Reporting Act, Sarbanes-Oxley Act,\nImmigration\nReform\nand\nControl\nAct,\nOccupational\nSafety\nand\nHealth\nAct,\nand\nall\nother\nfederal,\nstate\nor\nlocal\nlaws or any other statute, rule, regulation or executive order precluding discrimination or retaliation in\nemployment, claims for breach of contract, wrongful discharge, personal injuries or torts, defamation, and all\nother claims whether known or unknown, arising through the date of execution of this General Release of\nClaims ("Genera Release") by me, excepting only those matters set forth in this General Release.\nExcluded from this General Release are: (i) any claim or right which cannot be waived by law, including\nwithout limitation, all claims arising after the date of this Agreement, claims for unemployment compensation,\nand claims for worker compensation benefits; (ii) claims under the Fair Labor Standards Act; (iii) the right to\nfile\na\ncharge\nwith\nor\nparticipate\nin\nan\ninvestigation\nconducted\nby\nan\nadministrative\nagency,\nprovided\nam\nwaiving, however, any right to any monetary recovery if any administrative agency pursues any claim or\nclaims on my behalf with the exception of monetary recovery for Securities and xchange Commission claims;\n(iv) any indemnification obligations of MAXIMUS to me pertaining to the period prior to the date of my\ntermination of employment ("Termination Date") in my capacity as a director or officer under the articles of\nincorporation, by-laws or other organizational documents of MAXIMUS and its affiliated entities; (v) to the\nextent pertaining to the period prior to the Termination Date, the obligations of any insurer (other than\nMAXIMUS and its affiliated entities, including with respect to self-insurance) under any insurance policy for\nevents, acts or omissions for directors or officers of MAXIMUS and its affiliated entities; and (vi) my\nright\nto\nall\nearned but unpaid base salary through the Termination Date, any earned but unpaid incentive compensation,\nreimbursement for any unreimbursed expenses in accordance with MAXIMUS's business expense\nreimbursement policy as well as any accrued and vested benefits to which I am entitled in accordance with the\nterms of MAXIMUS's various benefit plans, policies and programs. I understand that nothing in this Genera\nRelease prohibits me from reporting possible violations of federal law or regulation to any governmental\nagency or entity, including but not limited to the Department of J ustice, the Securities and Exchange\nCommission, the Congress, and any agency Inspector General, or making other disclosures that are protected\nunder the whistleblower provisions of federa law or regulation.\nunderstand that I shall continue to comply with any terms that expressly survive the termination of the\nEmployment Agreement. Likewise, any client non-disclosure agreements signed by me survive the\ntermination of my employment with MAXIMUS, and I shall comply with the terms of those agreements. I\nunderstand that I must have returned as of the Termination Date all originals and copies of MAXIMUS's\nConfidential Information and other property in my possession or under my control, and that I not make any\nwillful or malicious negative or disparaging remarks regarding the Releasees.\nOlder Worker Benefit Protection Act. In compliance with the Older Worker Benefit Protection Act ("OWBPA")\nand in providing a release I agree and acknowledge that: (a) I have read the terms of this General Release,\nunderstand its contents, and agree to the terms and conditions set forth in this General Release of my own\nfree will; (b) I have been advised orally and, by this document, in writing of my right to consult with legal\ncounsel prior to executing this General Release; (c) I do not rely on any statement or representation of\nMAXIMUS outside of the Employment Agreement and this document in entering into this General Release;\nand (d) I am not releasing rights or claims under the ADEA that arise after the date this General Release is\nexecuted.\nI understand that I shall have twenty-one (21) calendar days from the Termination Date (the "Consideration\nPeriod") within which to consider the terms and execute this General Release. I further understand\nthat\nalthough I may take all twenty-one (21) days to consider this General Release, I may execute and provide this\nGeneral Release sooner. I understand that this Genera Release must be signed no earlier than the\nTermination Date or later than twenty-one (21) days after the Termination Date.\nI acknowledge and understand that I may revoke this General Release within seven (7) calendar days of the\ndate on which I execute this document (the "Revocation Period"), and that should I wish to revoke this General\nRelease, the revocation must be in writing and must be delivered by hand or mail to the General Counsel of\nMAXIMUS within the Revocation Period. I understand that if I revoke by mail, the revocation must be\npostmarked within the Revocation Period, certified mail/return receipt requested, properly addressed as\nfollows:\nMAXIMUS, Inc.\nDavid R. Francis\nGeneral Counsel\n1891 Metro Center Drive\nReston, Virginia 20190\nI understand that if I wish to revoke by hand delivery, the revocation must be delivered to the person and\naddress stated above within the Revocation Period.\nI acknowledge that the Severance will not be paid until the Revocation Period has expired without me\nexercising my right of revocation. If I fail to sign and return this General Release by the end of the\nConsideration Period or if timely revoke it as provided herein, I shall have no right to the Severance.\nThis General Release shall be construed in accordance with Virginia law, without regard to any jurisdiction's\nprinciples of conflict of laws, except where federal law applies. I understand and agree that if MAXIMUS\nprevails on any action to enforce this General Release, MAXIMUS shall be entitled to recover its reasonable\nlegal fees and costs.\nIN WITNESS WHEREOF, I have executed this Genera Release as of the date set forth below.\nBRUCE L. CASWELL\nDate:	Exhibit 10.1\nEXECUTIVE EMPLOYMENT, NON-COMPETE\nAND CONFIDENTIALITY AGREEMENT\nTHIS EXECUTIVE EMPLOYMENT, NON-COMPETE AND CONFIDENTIALITY AGREEMENT (this\n"Agreement"), is entered into as of the date set forth on the signature page (the “Execution Date”) by and\nbetween Bruce L. Caswell (the "Executive") and MAXIMUS, Inc., a Virginia corporation with its principal place\nof business in Reston, Virginia (the "Corporation") with reference to the following:\nWHEREAS, the parties entered into that certain Executive Employment, Non-Compete and\nConfidentiality Agreement effective on or about October 1, 2004, which was subsequently amended on\nNovember 20, 2007 (as amended, the “Prior Agreement”); and\nWHEREAS, the parties believe the Executive possesses the experience and capabilities to provide\nvaluable service on behalf of the Corporation; and\nWHEREAS, the Corporation desires to employ the Executive as its President and Chief Executive\nOfficer; and\nWHEREAS, the Executive desires to be employed by the Corporation at the salary, benefits and other\nterms and conditions specified herein.\nNOW, THEREFORE, in consideration of these premises and for other good and valuable\nconsideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:\n1.\nEmployment.\n1.1Duties. The Corporation hereby employs the Executive, and the Executive hereby accepts such\nemployment, to serve as the President and Chief Executive Officer. The Executive hereby represents and\nwarrants that he is in good health and capable of performing the services required hereunder. The Executive\nshall perform such services and duties as are appropriate to such office or delegated to the Executive by the\nCorporation’s Board of Directors (“Board”). During the term of this Agreement, the Executive shall be a\nfull-time employee of the Corporation and shall devote such time and attention to the discharge of his duties\nas may be necessary and appropriate to accomplish and complete such duties.\nThe Executive shall be nominated by the Board for election as a director and shall serve, without\nadditional compensation, as a member of the Board, subject to his being so elected by the Corporation's\nstockholders. The Executive agrees to obtain the consent of the Board, which consent may be withheld in the\nBoard’s sole discretion, before serving on the board of any other entity or organization.\n1.2Compensation.\n(a)Base Salary. As compensation for performance of his obligations hereunder, the Corporation\nshall pay the Executive an annual salary of $700,000 ("Base Salary"), such Base Salary to be\nreviewed annually beginning on or about October 1, 2018.\n(b)Management Bonus Program. The Executive will be eligible to participate in the\nCorporation's Management Bonus Program (“MBP”), with any awards dependent on the performance\nof the Executive and the Corporation. The target annual cash bonus for the Executive will be one\nhundred percent (100%) of annual Base Salary for accomplishing his annual goals.\n(c)Equity Awards. The Executive shall be eligible to receive awards under the 2017 Equity\nIncentive Plan or any successor plan (the “Equity Plan”) in the discretion of the Corporation's Board of\nDirectors, and shall also be entitled to participate in stock option and similar plans as currently exist or\nmay be established by the Corporation from time to time. The target annual equity award for the\nExecutive will be three hundred seventy-five percent (375%) of annual Base Salary. The Corporation\nagrees to proportionately adjust the Executive’s vested and unvested equity awards in the event the\nCorporation declares an extraordinary dividend during the term hereof. For these purposes, an\n“extraordinary dividend” would be any distribution per share having a value in excess of ten percent\n(10%) of the average trading price of the Corporation’s common stock during the three-month period\npreceding such distribution. Any Restricted Stock Units or other equity awards made to the Executive\non or after the Effective Date, shall vest according to their stated vesting schedules (or pursuant to the\nacceleration feature in connection with a Change of Control) unless the Executive is terminated for\nCause or voluntarily resigns his employment without Good Reason in which case any unvested\nawards shall be forfeited as of the effective date of termination.\nFor purposes of this Agreement, the terms “Cause,” “Change of Control” and “Good Reason” shall\nhave the meanings set forth in the Corporations Income Continuity Program (“ICP”) in effect as of the\nEffective Date.\n(d)Income Continuity Program. The Executive shall continue to be a Participant in the ICP. In\nthe event the ICP is subsequently amended or terminated, upon a qualifying termination of Executive’s\nemployment in connection with a Change of Control the Executive shall be entitled to receive the\ngreater of (i) the compensation and benefits payable under the ICP as it exists on the Effective Date or\n(ii) the compensation and benefits payable under any amended or successor program to the ICP.\n(e)Vacation, Insurance, Expenses, Etc. The Executive shall be entitled to vacation under the\nCorporation’s Executive Time Off policy, and such benefits, health, disability and life insurance and\nother benefits and expense reimbursements in a manner consistent with the Corporation's past\npractices and as are provided to the Corporation’s senior executives.\n(f)Insurance. The Corporation shall maintain the Executive as an insured party on all directors'\nand officers' insurance maintained by the Corporation for the benefit of its directors and officers on at\nleast the same basis as all other covered individuals and provide the Executive with at least the same\ncorporate indemnification as its officers.\n(g)Attorneys’ Fees. The Corporation shall reimburse the Executive for reasonable attorneys’\nfees incurred in connection with the review and negotiation of this Agreement within thirty (30) days\nfollowing the Execution Date, subject to prior submission of an invoice therefor.\n1.3Term; Termination. The term of the employment agreement set forth in this Section 1 shall be for a\nperiod commencing at the Effective Date and continuing for three (3) years thereafter (the "Scheduled Term").\nFollowing the Scheduled Term, the Agreement shall automatically renew for successive one-year terms (each\na “Renewal Term”) unless either party notifies the other of its desire to terminate the Agreement no less than\nthree (3) months before the expiration of the Scheduled Term or Renewal Term. Notwithstanding the\nforegoing, this Agreement shall terminate:\n(a)by mutual written consent of the parties;\n(b)upon Executive's death or inability, by reason of physical or mental impairment, to perform\nsubstantially all of Executive's duties as contemplated herein for a continuous period of 120 days or\nmore; or\n(c)by the Corporation for Cause.\nUpon any termination of employment under this Section 1.3, neither party shall have any obligation to\nthe other pursuant to this Section 1, but such termination shall have no effect on the obligations of the parties\nunder other provisions of this Agreement.\n“Effective Date” shall mean April 1, 2018. The Prior Agreement shall remain in full force and effect until\nthe Effective Date, at which time it shall automatically terminate without further action by the parties,\n1.4 Severance. The parties agree that in the event (i) the Corporation terminates the Executive's\nemployment without Cause, (ii) the Executive terminates the employment for Good Reason prior to the\nexpiration of the Scheduled Term or then-current Renewal Term, as applicable, or (iii) the Corporation elects\nnot to renew the Agreement for another term, the Executive shall be entitled to receive the following upon the\nexecution of a general release by the Executive in the form attached hereto as Exhibit A, which release shall\nbe executed and irrevocable within thirty (30) days of termination:\n(a)benefits, at the Corporation's expense, as provided under Section 1.2(e) for the greater of\nthe remainder of the current term of the Agreement or twelve (12) months. To the extent that these\npayments are not exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the\n'Code') under the COBRA, reimbursement, in-kind benefit, or other applicable exceptions thereunder,\nsuch payments shall be made at the time and in the amount required under the documents governing\neach such benefit;\n(b)continued vesting of stock options and Restricted Stock Units in accordance with their stated\nterms; and\n(c) a lump sum, payable within forty-five (45) days following termination of employment, equal\nto the greater of (i) Base Salary for the remainder of the Scheduled Term or Renewal Term or (ii) two\ntimes the sum of the Executive's Base Salary plus the lesser of his target bonus or previous year's\nactual bonus, which lump sum shall be considered a separate payment for purposes of Section 409A\nof the Code. If the Executive's employment termination occurs in connection with a Change in Control,\nthe Executive shall be entitled to receive such payments and benefits as provided under the Income\nContinuity Plan, and this Section 1.4 shall not apply.\n2.\nRestrictions on Competition and Solicitation.\n2.1.Prohibited Activities.\na.The Executive agrees that, during his employment with the Corporation and for a period of\none (1) year after the termination of such employment for any reason, the Executive, anywhere in the\nUnited States or in any other country or jurisdiction where the Corporation conducts business as of the\ntime of such termination:\ni.will not whether as a principal, investor, owner, executive, consultant, independent\ncontractor, officer, director, board member, manager, partner, agent, or otherwise, alone or in\nassociation with any other person, firm, corporation, or business organization, work for,\nbecome employed by, engage in, carry on, provide services to, or assist in any manner\n(whether or not for compensation or gain) an entity in competition with the Corporation, where\nthe Executive’s position or service for such entity is competitive with any of the Executive’s\npositions or services that the Executive performed for the Corporation;\nii. will not contact any of the Corporation’s Customers or Potential Customers or solicit\nor induce (or attempt to solicit or induce) any of them to not conduct business with the\nCorporation, or to conduct business with or contract with any other person or entity instead of\nthe Corporation. For purposes of this Agreement, “Customers or Potential Customers”\nmeans all persons, companies, firms, or entities that have, within the twelve (12) months prior\nto the Executive’s termination of employment: (A) obtained the Corporation’s services, (B)\ncontacted the Corporation for the purpose of obtaining the Corporation’s services, or (C) been\nactively solicited by the Corporation for the purpose of providing its services; and for which the\nExecutive provided services or about which the Executive had access to and knowledge of\nproprietary information;\niii.will not, directly or indirectly, contact, solicit or induce (or attempt to solicit or induce)\nany of the Corporation Personnel to leave their employment with the Corporation or consider\nemployment with any other person or entity. For purposes of this Agreement, the “Corporation\nPersonnel” shall mean any employee or service provider of the Corporation who worked for the\nCorporation during Executive’s employment and with whom the Executive worked personally or\nknew personally or who was known by the Executive to have unique knowledge or skills that\ncould cause competitive harm to the Corporation;\niv. will not, directly or indirectly, hire or cause to be hired (or engage or cause to be\nengaged as an independent contractor) any such Corporation Personnel; and\nv.Executive agrees that the restrictions set forth in this Section 2.1, in light of the access\nto client, proprietary and other confidential information that the Corporation provides to\nExecutive, are reasonable and necessary in order to protect the legitimate business interests of\nthe Corporation. Executive agrees that the duration of the restrictions set forth in this paragraph\nshall be extended by the duration of any period in which Executive is in violation of any of those\nrestrictions. The existence of any other claim by Executive against the Corporation, whether\nbased on this Agreement or otherwise, will not constitute a defense to the enforcement of this\nAgreement by the Corporation.\nb.The Executive shall notify any new employer, partner, association or any other firm or\ncorporation in competition with the Corporation with whom the Executive shall become associated in\nany capacity whatsoever of the provisions of this Section 2 and the Executive agrees that the\nCorporation may give such notice to such firm, corporation or other person.\n2.2.Business Opportunities; Conflicts of Interest; Other Employment and Activities of the Executive.\na.The Executive agrees promptly to advise the Corporation of, and provide the Corporation with\nan opportunity to pursue, all business opportunities that reasonably relate to the present business\nconducted by the Corporation.\nb.The Executive, in his capacity as an employee of the Corporation, shall not engage in any\nbusiness with any member of the Executive's immediate family or with any person or business entity in\nwhich the Executive or any member of the Executive's immediate family has any ownership interest or\nfinancial interest, unless and until the Executive has first fully disclosed such interest to and received\nwritten consent from the Board of Directors. As used herein, the term "immediate family" means the\nExecutive's spouse, natural or adopted children, parents or siblings and the term "financial interest"\nmeans any relationship with such person or business entity that may monetarily benefit the Executive\nor member of the Executive's immediate family, including any lending relationship or the guarantying of\nany obligations of such person or business entity by the Executive or member of his immediate family.\nc.The parties hereto agree that the Executive may, consistent with this Section 2.2, receive and\nretain speaking fees, referral fees from business opportunities not accepted by the\nCorporation, and fees from outside business activities and opportunities of the Executive consented to\nby the Board of Directors.\n3.Confidentiality. The Executive agrees that the Corporation's books, records, files and all other non-public\ninformation relating to the Corporation, its business, clients and employees are proprietary in nature and\ncontain trade secrets and shall be held in strict confidence by the Executive, and shall not, either during the\nterm of this Agreement or after the termination hereof, be used by Executive or disclosed, directly or indirectly,\nto any third party, except to the extent such use or disclosure is in furtherance of the Corporation's business or\nrequired by any law, rule, regulation or other legal process. The trade secrets or other proprietary or\nconfidential information referred to in the prior sentence includes, without limitation, all proposals to clients or\npotential clients, contracts, client or potential client lists, fee policies, financial information, administration or\nmarketing practices or procedures and all other information regarding the business of the Corporation and its\nclients not generally known to the public.\n4.Miscellaneous.\n4.1.Notices. All notices, requests, demands or other communications provided for in this Agreement\nshall be in writing and shall be delivered by hand, sent prepaid by overnight delivery service or sent by the\nUnited States mail, certified, postage prepaid, return receipt request, to the following:\nIf to the Corporation:\nMAXIMUS, Inc.\n1891 Metro Center Drive\nReston, Virginia 20190\nAttention: General Counsel\nIf to the Executive:\nBruce L. Caswell\nWith a copy (not constituting notice) to:\nWilliams & Connolly LLP\n725 Twelfth Street, NW\nWashington, DC 20005\nAttention: Deneen C. Howell, Esq.\nAny notice, request, demand or other communication delivered or sent in the foregoing manner shall be\ndeemed given or made (as the case may be) upon the earliest of (i) the date it is actually received, (ii) the\nbusiness-day after the day on which it is delivered by hand, (iii) the business day after the day on which it is\nproperly delivered to Federal Express (or a comparable overnight delivery service), or (iv) the third business\nday after the date on which it is deposited in the United States mail. Either party may change its address by\nnotifying the other party of the new address in any manner permitted by this paragraph.\n4.2.Remedies. The parties agree and acknowledge that any violation by the Executive of the terms\nhereof may result in irreparable injury and damage to the Corporation or its clients, which may not adequately\nbe compensable in monetary damages, that the Corporation will have no adequate remedy at law therefor,\nand that the Corporation may obtain such preliminary, temporary or permanent mandatory or restraining\ninjunctions, orders or decrees as may be necessary to protect it against, or on account of, any breach of the\nprovisions contained in this Agreement.\n4.3.No Obligation of Continued Employment. The Executive understands that this Agreement does not\ncreate an obligation on the part of the Corporation to continue the Executive's employment with the\nCorporation after the expiration or termination of this Agreement.\n4.4.Benefit; Assignment. This Agreement shall bind and inure to the benefit of the parties and their\nrespective personal representatives, heirs, successors and assigns, provided this Agreement may not be\nassigned by either party without the consent of the other, except that the Corporation may assign this\nAgreement in connection with the merger, consolidation or sale of all or substantially all of its business or\nassets.\n4.5.Entire Agreement. This Agreement supersedes all previous agreements, written or oral, with\nrespect to the subject matter of this Agreement other than the Prior Agreement, which shall remain in full force\nand effect until the Effective Date.\n4.6.Severability. In the event that any one or more of the provisions contained herein shall be held to\nbe invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect\nany other provisions of this Agreement, and all other provisions shall remain in full force and effect. If any of\nthe provisions of this Agreement is held to be excessively broad, it shall be reformed and construed by limiting\nand reducing it so as to be enforceable to the maximum extent permitted by law.\n4.7.Waivers. No delay or omission by either party in exercising any right under this Agreement will\noperate as a waiver of that or any other right. A waiver or consent given by either party on any occasion is\neffective only in that instance and will not be construed as a bar to or waiver of any right on any other\noccasion.\n4.8.Captions. The captions of the various sections and paragraphs of this Agreement have been\ninserted only for the purpose of convenience; such captions are not a part of this Agreement and shall not be\ndeemed in any manner to modify, explain, enlarge or restrict any of the provisions of this Agreement.\n4.9.Governing Law and Jurisdiction. This Agreement shall in all events and for all purposes be\ngoverned by, and construed in accordance with, the laws of the Commonwealth of Virginia. Any action or\nproceeding against the parties relating in any way to this Agreement must be brought and enforced in the\ncourts of Fairfax County, Virginia or the Eastern District of Virginia, and the parties irrevocably submit to the\njurisdiction of such courts in respect of any such action or proceeding.\n4.10.Amendments. No changes to this Agreement shall be binding unless in writing and signed by both\nthe parties.\n4.11 .Counterparts. This Agreement may be executed in several counterparts (including via facsimile\nand the electronic exchange of .pdf copies), each of which shall be deemed an original, and all such\ncounterparts shall constitute one instrument.\n4.12. Distributions to Specified Employees. Notwithstanding any provision to the contrary, to the\nextent the Executive is considered a specified employee under Section 409A of the Code and would be\nentitled to a payment during the six month period beginning on the Executive's date of termination that is not\notherwise excluded under Section 409A of the Code under the exceptions for short-term deferrals, separation\npay arrangements, reimbursements, in-kind distributions, or an otherwise applicable exemption, the payment\nwill not be made to the Executive until the earlier of the six month anniversary of the Executive's date of\ntermination or the Executive's death.\n4.13. Section 409A of the Code. It is the intention of the parties that this Agreement comply with and\nbe administered in accordance with Section 409A of the Code and the interpretive guidance thereunder,\nincluding the exceptions for short-term deferrals, separation pay arrangements, reimbursements, and in-\nkind distributions. The Agreement shall be construed and interpreted in accordance with such intent. To the\nextent such potential payments or benefits could become subject to such Section, the parties shall cooperate\nto amend this Agreement with the goal of giving the Executive the economic benefits described herein in a\nmanner that does not result in such tax being imposed. In the event that the Corporation does not so\ncooperate, the Corporation shall indemnify the Executive for any interest and additional tax arising from the\napplication of Section 409A of the Code, grossed-up for any other income tax incurred by Executive related to\nthe indemnification (i.e., indemnification of such additional income tax), assuming the highest marginal income\ntax rates apply to any taxable indemnification. Any indemnification payment shall be made within ninety (90)\ndays of the date Executive makes payment of the interest and/or additional tax.\nTHE EXECUTIVE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND THE\nEXECUTIVE UNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. THE EXECUTIVE\nUNDERSTANDS THAT THIS AGREEMENT MAY AFFECT THE EXECUTIVE'S RIGHT TO ACCEPT\nEMPLOYMENT WITH OTHER COMPANIES SUBSEQUENT TO THE EXECUTIVE'S EMPLOYMENT WITH\nTHE CORPORATION.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set forth\nbelow.\nEXECUTIVE\nMAXIMUS, Inc.\n/s/ Bruce L. Caswell\nBy /s/ David R. Francis\nBruce L. Caswell\nDate January 10, 2018\nTitle General Counsel\nEXHIBIT A\nGENERAL RELEASE OF CLAIMS\nIn consideration of the Severance (“Severance”) to be provided to me under Section 1.4 of that certain\nExecutive Employment, Non-Compete and Confidentiality Agreement between me and MAXIMUS, Inc.\n(“MAXIMUS”) effective April 1, 2018 (the “Employment Agreement”), and intending to be legally bound, I\nagree as follows:\nGeneral Release and Waivers. I release MAXIMUS and its affiliated entities and their respective officers,\ndirectors, partners, owners, executives, contractors, clients, agents, representatives, administrators of any\nMAXIMUS benefit plan, predecessors, successors and assigns (the “Releasees”) from any and all individual\nor class action claims, actions, rights, demands, debts, damages, grievances or accountings of whatever\nnature, whether known or unknown, currently existing or arising in the future, that I have or may have against\nthe Releasees relating in any way to my employment with MAXIMUS or the termination thereof, including,\nwithout limitation, claims under the Age Discrimination in Employment Act, Older Workers Benefit Protection\nAct, Title VII of the Civil Rights Act of 1964, Worker Adjustment and Retraining Notification Act, Family and\nMedical Leave Act, Americans with Disabilities Act, Fair Credit Reporting Act, Sarbanes-Oxley Act,\nImmigration Reform and Control Act, Occupational Safety and Health Act, and all other federal, state or local\nlaws or any other statute, rule, regulation or executive order precluding discrimination or retaliation in\nemployment, claims for breach of contract, wrongful discharge, personal injuries or torts, defamation, and all\nother claims whether known or unknown, arising through the date of execution of this General Release of\nClaims (“General Release”) by me, excepting only those matters set forth in this General Release.\nExcluded from this General Release are: (i) any claim or right which cannot be waived by law, including\nwithout limitation, all claims arising after the date of this Agreement, claims for unemployment compensation,\nand claims for worker compensation benefits; (ii) claims under the Fair Labor Standards Act; (iii) the right to\nfile a charge with or participate in an investigation conducted by an administrative agency, provided I am\nwaiving, however, any right to any monetary recovery if any administrative agency pursues any claim or\nclaims on my behalf with the exception of monetary recovery for Securities and Exchange Commission claims;\n(iv) any indemnification obligations of MAXIMUS to me pertaining to the period prior to the date of my\ntermination of employment (“Termination Date”) in my capacity as a director or officer under the articles of\nincorporation, by-laws or other organizational documents of MAXIMUS and its affiliated entities; (v) to the\nextent pertaining to the period prior to the Termination Date, the obligations of any insurer (other than\nMAXIMUS and its affiliated entities, including with respect to self-insurance) under any insurance policy for\nevents, acts or omissions for directors or officers of MAXIMUS and its affiliated entities; and (vi) my right to all\nearned but unpaid base salary through the Termination Date, any earned but unpaid incentive compensation,\nreimbursement for any unreimbursed expenses in accordance with MAXIMUS’s business expense\nreimbursement policy as well as any accrued and vested benefits to which I am entitled in accordance with the\nterms of MAXIMUS’s various benefit plans, policies and programs. I understand that nothing in this General\nRelease prohibits me from reporting possible violations of federal law or regulation to any governmental\nagency or entity, including but not limited to the Department of Justice, the Securities and Exchange\nCommission, the Congress, and any agency Inspector General, or making other disclosures that are protected\nunder the whistleblower provisions of federal law or regulation.\nI understand that I shall continue to comply with any terms that expressly survive the termination of the\nEmployment Agreement. Likewise, any client non-disclosure agreements signed by me survive the\ntermination of my employment with MAXIMUS, and I shall comply with the terms of those agreements. I\nunderstand that I must have returned as of the Termination Date all originals and copies of MAXIMUS’s\nConfidential Information and other property in my possession or under my control, and that I not make any\nwillful or malicious negative or disparaging remarks regarding the Releasees.\nOlder Worker Benefit Protection Act. In compliance with the Older Worker Benefit Protection Act (“OWBPA”)\nand in providing a release I agree and acknowledge that: (a) I have read the terms of this General Release,\nunderstand its contents, and agree to the terms and conditions set forth in this General Release of my own\nfree will; (b) I have been advised orally and, by this document, in writing of my right to consult with legal\ncounsel prior to executing this General Release; (c) I do not rely on any statement or representation of\nMAXIMUS outside of the Employment Agreement and this document in entering into this General Release;\nand (d) I am not releasing rights or claims under the ADEA that arise after the date this General Release is\nexecuted.\nI understand that I shall have twenty-one (21) calendar days from the Termination Date (the “Consideration\nPeriod”) within which to consider the terms and execute this General Release. I further understand that\nalthough I may take all twenty-one (21) days to consider this General Release, I may execute and provide this\nGeneral Release sooner. I understand that this General Release must be signed no earlier than the\nTermination Date or later than twenty-one (21) days after the Termination Date.\nI acknowledge and understand that I may revoke this General Release within seven (7) calendar days of the\ndate on which I execute this document (the “Revocation Period”), and that should I wish to revoke this General\nRelease, the revocation must be in writing and must be delivered by hand or mail to the General Counsel of\nMAXIMUS within the Revocation Period. I understand that if I revoke by mail, the revocation must be\npostmarked within the Revocation Period, certified mail/return receipt requested, properly addressed as\nfollows:\nMAXIMUS, Inc.\nDavid R. Francis\nGeneral Counsel\n1891 Metro Center Drive\nReston, Virginia 20190\nI understand that if I wish to revoke by hand delivery, the revocation must be delivered to the person and\naddress stated above within the Revocation Period.\nI acknowledge that the Severance will not be paid until the Revocation Period has expired without me\nexercising my right of revocation. If I fail to sign and return this General Release by the end of the\nConsideration Period or if timely revoke it as provided herein, I shall have no right to the Severance.\nThis General Release shall be construed in accordance with Virginia law, without regard to any jurisdiction’s\nprinciples of conflict of laws, except where federal law applies. I understand and agree that if MAXIMUS\nprevails on any action to enforce this General Release, MAXIMUS shall be entitled to recover its reasonable\nlegal fees and costs.\nIN WITNESS WHEREOF, I have executed this General Release as of the date set forth below.\nBRUCE L. CASWELL\nDate:
+52aaf701a2c24c940628e155dabacdbf.pdf	effective_date jurisdiction party	EXHIBIT 10.42\nEMPLOYEE\nCONFIDENTIALITY, INVENTION ASSIGNMENT\nAND NON-COMPETE AGREEMENT\nTHIS EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE AGREEMENT (“Agreement”) is made as of the date set forth on the signature page below between Inspire Pharmaceuticals, Inc.\n(“Inspire”), and the person whose name is set forth on the signature page below as Employee (“Employee”).\nIn consideration of Employee’s employment or continued employment by Inspire, with the intention that this Agreement shall apply to the entire period of Employee’s employment with Inspire (including the period prior to the date of this\nAgreement), Employee hereby agrees as follows:\n1. CONFIDENTIAL INFORMATION DEFINED. “Confidential Information” means trade secrets, proprietary information and materials, and confidential knowledge and information which includes, but is not limited to, matters of a technical\nnature (such as discoveries, ideas, concepts, designs, drawings, specifications, techniques, models, diagrams, test data, scientific methods and know-how, and materials such as reagents, substances, chemical compounds, subcellular\nconstituents, cell or cell lines, organisms and progeny, and mutants, derivatives or replications derived from or relating to any of the foregoing materials), and matters of a business nature (such as the identity of customers and prospective\ncustomers, the nature of work being done for or discussed with customers or prospective customers, suppliers, marketing techniques and materials, marketing and development plans, pricing or pricing policies, financial information, plans\nfor further development, and any other information of a similar nature not available to the public).\n“Confidential Information” shall not include information that: (a) was in Employee’s possession or in the public domain before receipt from the Company, as evidenced by the then existing publication or other public dissemination of such\ninformation in written or other documentary form; (b) becomes available to the public through no fault of Employee; (c) is received in good faith by Employee from a third party who is not subject to an obligation of confidentiality to the\nCompany or any other party; or (d) is required by a judicial or administrative authority or court having competent jurisdiction to be disclosed by Employee, provided that Employee shall promptly notify the Company and allow the\nCompany a reasonable time to oppose or limit such order.\n2. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF INSPIRE. Employee acknowledges that, during the period of Employee’s employment with Inspire, Employee has had or will have access to Confidential Information of Inspire.\nTherefore, Employee agrees that both during and after the period of Employee’s employment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal, report, publish, disclose or\ntransfer any Confidential Information of Inspire to any person or entity, or (b) use any Confidential Information of Inspire for any purpose or for the benefit of any person or entity, except as may be necessary in the performance of\nEmployee’s work for Inspire.\n3. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF OTHERS. Employee acknowledges that, during the period of Employee’s employment with Inspire, Employee may have had or will\n-1-\nhave access to Confidential Information of third parties who have given Inspire the right to use such Confidential Information, subject to a non-disclosure agreement between Inspire and such third party. Therefore, Employee agrees that\nboth during and after the period of Employee’s employment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal, report, publish, disclose or transfer any Confidential Information\nof such third parties to any person or entity, or (b) use any Confidential Information of such third parties for any purpose or for the benefit of any person or entity, except as may be necessary in the performance of Employee’s work for\nInspire.\n4. PROPERTY OF INSPIRE. Employee acknowledges and agrees that all Confidential Information of Inspire and all reports, drawings, blueprints, materials, data, code, notes and other documents and records, whether printed, typed,\nhandwritten, videotaped, transmitted or transcribed on data files or on any other type of media, and whether or not labeled or identified as confidential or proprietary, made or compiled by Employee, or made available to Employee, during\nthe period of Employee employment with Inspire (including the period prior to the date of this Agreement) concerning Inspire’s Confidential Information are and shall remain Inspire’s property and shall be delivered to Inspire within five\n(5) business days after the termination of such employment with Inspire or at any earlier time on request of Inspire. Employee shall not retain copies of such Confidential Information, documents and records.\n5. PROPRIETARY NOTICES. Employee shall not, and shall not permit any other person to, remove any proprietary or other legends or restrictive notices contained in or included in any Confidential Information.\n6. INVENTIONS.\n(a) Employee shall promptly, from time to time, fully inform and disclose to Inspire in writing all inventions, copyrightable material, designs, improvements and discoveries of any kind which Employee now has made, conceived or\ndeveloped (including prior to the date of this Agreement), or which Employee may later make, conceive or develop, during the period of Employee’s employment with Inspire, which pertain to or relate to Inspire’s business or any of the\nwork or businesses carried on by Inspire (“Inventions”). This covenant applies to all such Inventions, whether or not they are eligible for patent, copyright, trademark, trade secret or other legal protection; and whether or not they are\nconceived and/or developed by Employee alone or with others; and whether or not they are conceived and/or developed during regular working hours; and whether or not they are conceived and/or developed at Inspire’s facility or not.\n(b) Inventions shall not include any inventions made, conceived or developed by Employee prior to Employee’s employment with Inspire, a complete list of which is set forth on Schedule A attached.\n(c) All Inventions shall be the sole and exclusive property of Inspire, and shall be deemed part of the Confidential Information of Inspire for purposes of this Agreement, whether or not fixed in a tangible medium of expression. Employee\nhereby assigns all Employee’s rights in all Inventions and in all related patents, copyrights and trademarks, trade secrets and other proprietary rights therein to Inspire. Without limiting the foregoing, Employee agrees that any\ncopyrightable material shall be deemed to be “works made for hire” and that Inspire shall be deemed the author of such works under the United States Copyright Act, provided that in the event and to the extent such works are determined\nnot to constitute “works made for hire”, Employee hereby irrevocably assigns and transfers to Inspire all right, title and interest in such works.\n-2-\n(d) Employee shall assist and cooperate with Inspire, both during and after the period of Employee’s employment with Inspire, at Inspire’s sole expense, to allow Inspire to obtain, maintain and enforce patent, copyright, trademark, trade\nsecret and other legal protection for the Inventions. Employee shall sign such documents, and do such things necessary, to obtain such protection and to vest Inspire with full and exclusive title in all Inventions against infringement by\nothers. Employee hereby appoints the Secretary of Inspire as Employee’s attorney-in-fact to execute documents on Employee’s behalf for this purpose.\n(e) Employee shall not be entitled to any additional compensation for any and all Inventions made during the period of Employee’s employment with Inspire.\n7. COVENANT NOT TO COMPETE. If Employee is, at any time during Employee’s period of employment with Inspire, employed in the discovery or development areas of the Company in a non-clerical position, or as a director level or higher\nlevel senior manager of the Company, then this Section 7 shall apply. Employee and Inspire agree that the services rendered by the Employee are unique and irreplaceable, and that competitive use and knowledge of any Confidential\nInformation would substantially and irreparably injure Inspire’s business, prospects and good will. Employee and Inspire also agree that Inspire’s business is global in nature due to the type of products and/or services being provided.\nTherefore, Employee agrees that during the period of Employee’s employment with Inspire and for a period of one (1) year thereafter, Employee shall not, directly or indirectly, through any other person, firm, corporation or other entity\n(whether as an officer, director, employee, partner, consultant, holder of equity or debt investment, lender or in any other manner or capacity):\n(a) develop, sell, market, offer to sell products and/or services anywhere in the world that have the same or similar technological approach or technology platform (e.g., same receptors (such as P2Y), same mechanism of action (such as\nmucociliary clearance)) as those being developed, offered or sold by Inspire on the date of the termination of Employee’s employment with Inspire for any reason;\n(b) solicit, induce, encourage or attempt to induce or encourage any employee or consultant of Inspire to terminate his or her employment or consulting relationship with Inspire, or to breach any other obligation to Inspire;\n(c) solicit, interfere with, disrupt, alter or attempt to disrupt or alter the relationship, contractual or otherwise, between Inspire and any consultant, contractor, customer, potential customer, or supplier of Inspire; or\n(d) engage in or participate in any business in the same industry as Inspire which is conducted under any name that shall be the same as or similar to the name of Inspire or any trade name used by Inspire.\nEmployee acknowledges that the foregoing geographic, activity and time limitations contained in this Section 7 are reasonable and properly required for the adequate protection of Inspire’s business. In the event that any such geographic,\nactivity or time limitation is deemed to be unreasonable by a court, Employee shall submit to the reduction of either said activity or time limitation to such activity or period as the court shall deem reasonable. In the event that Employee is\nin violation of the aforementioned restrictive covenants, then the time limitation thereof shall be extended for a period of time equal to the pendency of such proceedings, including appeals.\n-3-\n8. REPRESENTATIONS. Employee represents that Employee has the right to enter into this Agreement, and that Employee’s performance of all the terms of this Agreement and his duties as an employee of Inspire will not breach any\nconfidential information agreement, non-competition agreement or other agreement with any former employer of his services, either as an employee, consultant, contractor or independent contractor, or with any other party. Employee\nrepresents that Employee will not disclose to Inspire any trade secrets or confidential or proprietary information of any third party that are not generally available to the public.\n9. DISCLOSURE OF THIS AGREEMENT. Employee hereby authorizes Inspire to notify others, including but not limited to customers of Inspire and any of Employee’s future employers, of the terms of this Agreement and Employee’s\nresponsibilities under this Agreement.\n10. SPECIFIC PERFORMANCE. Employee acknowledges that money damages alone would not adequately compensate Inspire in the event of a breach or threatened breach by Employee of this Agreement, and that, in addition to all other\nremedies available to Inspire at law or in equity, Inspire shall be entitled to injunctive relief for the enforcement of its rights and to an accounting of profits made during the period of such breach.\n11. NO RIGHTS GRANTED. Employee understands that nothing in this Agreement shall be deemed to constitute, by implication or otherwise, the grant by Inspire to the employee of any license or other right under any patent, patent\napplication or other intellectual property right or interest belonging to Inspire.\n12. SEVERABILITY.\n(a) Each of the covenants provided in this Agreement are separate and independent covenants. If any provision of this Agreement shall be determined to be invalid or unenforceable, the remainder of this Agreement shall not be affected\nthereby and any such invalid or unenforceable provision shall be reformed so as to be valid and enforceable to the fullest extent permitted by law.\n(b) It is not a defense to the enforcement of any provision of this Agreement that Inspire has breached or failed to perform any obligation or covenant hereunder or under any other agreement or understanding between Employee and\nInspire.\n13. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without regard to conflict of law rules. All suits and claims shall be made only in state or federal courts\nlocated in North Carolina.\n14. SUPERSEDES OTHER AGREEMENTS. This Agreement contains the entire agreement of the parties with respect to subject matter hereof and supersedes all previous agreements and understandings between the parties with respect to its\nsubject matter.\n15. AMENDMENTS. This Agreement may not be changed, modified, released, discharged, abandoned or otherwise terminated in whole or in part except by an instrument in writing, agreed to and signed by the Employee and a duly\nauthorized officer of Inspire.\n16. ACKNOWLEDGEMENTS. THE EMPLOYEE ACKNOWLEDGES THAT (i) THE EMPLOYEE HAS READ AND FULLY UNDERSTANDS THIS AGREEMENT; (ii) THE EMPLOYEE HAS BEEN GIVEN THE OPPORTUNITY TO\nASK QUESTIONS; (iii) THE\n-4-\nEMPLOYEE HAS RECEIVED A COPY OF THIS AGREEMENT, THE ORIGINAL OF WHICH WILL BE RETAINED IN THE EMPLOYEE’S PERSONNEL FILE; AND (iv) THE EMPLOYEE’S OBLIGATIONS UNDER THIS\nAGREEMENT SURVIVE THE TERMINATION OF THE EMPLOYEE’S EMPLOYMENT WITH INSPIRE FOR ANY REASON .\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth below.\nINSPIRE PHARMACEUTICALS, INC.\n4222 Emperor Boulevard\nDurham, North Carolina 27703\nBy:\n/s/ Christy L. Shaffer\nChristy L. Shaffer, Ph.D .,\nChief Executive Officer\nEMPLOYEE:\nBarry G. Pea\n(Print Name)\n/s/ Barry G. Pea\n(Signature Here)\nDate:\n10/11/04\nAddress:\n137 New Castle Drive\nChapel Hill, NC 27517\n-5-\nSCHEDULE A\nPRIOR INVENTIONS\n-6-	EXHIBIT 10.42\nEMPLOYEE\nCONFIDENTIALITY, INVENTION ASSIG NMENT\nAND NON-COMPETE AGREEMENT\nTHIS EMPLOY EE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE AGREEMENT ("Agreement") is made as of the date set forth on the signature page below between Inspire Pharmaceuticals, Inc.\n("Inspire"), and the person whose name is set forth on the signature page below as Employee ("Employee").\nIn consideration of Employee’s employment or continued employment by Inspire, with the intention that this Agreement shall apply to the entire period of Employee’s employment with Inspire (including the period prior to the date of this\nAgreement), Employee hereby agrees as follows:\n1. CONFIDENTIAL INFORMATION DEFINED. "Confidential Information" means trade secrets, proprietary information and materials, and confidential knowledge and information which includes, but is not limited to, matters of a technical\nnature (such as discoveries, ideas, concepts, designs, drawings, specifications, techniques, models, diagrams, test dam, scientific methods and know-how, and materials such as reagents, substances, chemical compounds, subcellular\nconstituents, cell or cell lines, organisms and progeny, and mutants, derivatives or replications derived from or relating to any of the foregoing materials), and matters of a business nature (such as the identity of customers and prospective\ncustomers, the nature of work being done for or discussed with customers or prospective customers, suppliers, marketing techniques and materials, marketing and development plans, pricing or pricing policies, financial information, plans\nfor further development, and any other information of a similar nature not available to the public).\n”Confidential Information" shall not include information that (a) was in Employee’s possession or in the public domain before receipt from the Company, as evidenced by the then existing publication or other public dissemination of such\ninformation in written or other documenmry form,- (b) becomes available to the public through no fault of Employee; (c) is received in good faith by Employee from a third party who is not subject to an obligation of confidentiality to the\nCompany or any other party; or (d) is required by a judicial or administrative authority or court having competent jurisdiction to be disclosed by Employee, provided that Employee shall promptly notify the Company and allow the\nCompany a reasonable time to oppose or limit such order.\n2. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF INSPIRE. Employee acknowledges that, during the period of Employee's employment with Inspire, Employee has had or will have access to Confidential Information of Inspire.\nTherefore, Employee agrees that both during and after the period of Employee's employment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal, report, publish, disclose or\ntransfer any Confidential Information of Inspire to any person or entity, or (b) use any Confidential Information of Inspire for any purpose or for the benefit of any person or entity, except as may be necessary in the performance of\nEmployee’s work for Inspire.\n3. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF OTHERS. Employee acknowledges that, during the period of Employee's employment with Inspire, Employee may have had or will\n—\nhave access to Confidential Information of third parties who have given Inspire the right to use such Confidential Information, subject to a non-disclosure agreement between Inspire and such third party. Therefore, Employee agrees that\nboth during and after the period of Employee’s employment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal, report, publish, disclose or tiansfer any Confidential Information\nof such third parties to any person or entity, or (b) use any Confidential Information of such third parties for any purpose or for the benefit of any person or entity, except as may be necessary in the performance of Employee’s work for\nInspire.\n4. PROPERTY OF INSPIRE. Employee acknowledges and agrees that all Confidential Information of Inspire and all repom, drawings, blueprints, materials, data, code, notes and other documents and records, whether printed, typed,\nhandwritten, videotaped, transmitted or tianscribed on data files or on any other type of media, and whether or not labeled or identified as confidential or proprietary, made or compiled by Employee, or made available to Employee, during\nthe period of Employee employment with Inspire (including the period priorto the date of this Agreement) conceming Inspire’s Confidential Information are and shall remain Inspire’s property and shall be delivered to Inspire within five\n(5) business days after the termination of such employment with Inspire or at any earlier time on request of Inspire. Employee shall not retain copies of such Confidential Information, documents and records\n5. PROPRIETARY NOTICES. Employee shall not, and shall not permit any other person to, remove any proprietary or other legends or restrictive notices conmined in orincluded in any Confidential Information.\n6. INVENTIONS.\n(a) Employee shall promptly, from time to time, fully inform and disclose to Inspire in writing all inventions, copyrightable material, designs, improvements and discoveries of any kind which Employee now has made, conceived or\ndeveloped (including priorto the date of this Agreement), or which Employee may later make, conceive or develop, during the period of Employee’s employment with Inspire, which pertain to or relate to Inspire' 5 business or any of the\nwork or businesses carried on by Inspire ("Inventions"). This covenant applies to all such Inventions, whether or not they are eligible for patent, copyright, trademark, tiade secret or other legal protection; and whether or not they are\nconceived and/or developed by Employee alone or with others; and whether or not they are conceived and/or developed during regular working hours; and whether or not they are conceived and/or developed at Inspire’s facility or not.\n(b) Inventions shall not include any inventions made, conceived or developed by Employee priorto Employee’s employment with Inspire, a complete list of which is set forth on Schedule A attached.\n(c) All Inventions shall be the sole and exclusive property of Inspire, and shall be deemed part of the Confidential Information of Inspire for purposes of this Agreement, whether or not fixed in a tangible medium of expression Employee\nhereby assigns all Employee's rights in all Inventions and in all related patents, copyrights and trademarks, trade secrets and other proprietary rights therein to Inspire Without limiting the foregoing, Employee agrees that any\ncopyrightable material shall be deemed to be "works made for hire” and that Inspire shall be deemed the author of such works under the United States Copyright Act, provided that in the event and to the extent such works are determined\nnot to constitute ”works made for hire”, Employee hereby irrevocably assigns and transfers to Inspire all right, title and interest in such works.\n—\n(d) Employee shall assist and cooperate with Inspire, both during and after the period of Employee’s employment with Inspire, at Inspire’s sole expense, to allow Inspire to obmin, maintain and enforce patent, copyright, trademark, tiade\nsecret and other legal protection for the Inventions. Employee shall sign such documents, and do such things necessary, to obtain such protection and to vest Inspire with full and exclusive title in all Inventions against infringement by\nothers Employee hereby appoints the Secretary of Inspire as Employee’s attomey-in-fact to execute documents on Employee’s behalf for this purpose\n(e) Employee shall not be entitled to any additional compensation for any and all Inventions made during the period of Employee's employment with Inspire.\n7‘ COVENANT NOT TO COMPETEI If Employee is, at any time during Employee’s period of employment with Inspire, employed in the discovery or development areas of the Company in a non-clerical position, or as a director level or higher\nlevel senior manager of the Company, then this Section 7 shall apply. Employee and Inspire agree that the services rendered by the Employee are unique and irreplaceable, and that competitive use and knowledge of any Confidential\nInformation would substantially and irreparably injure Inspire's business, prospects and good will. Employee and Inspire also agree that Inspire’s business is global in nature due to the type of products and/or services being provided.\nTherefore, Employee agrees that during the period of Employee’s employment with Inspire and for a period of one (1) year thereafter, Employee shall not, directly or indirectly, through any other person, firm, corporation or other entity\n(whether as an officer, director, employee, partner, consultant, holder of equity or debt investment, lender or in any other manner or capacity):\n(a) develop, sell, market, offer to sell products and/or services anywhere in the world that have the same or similar technological approach or technology platform (egr, same receptors (such as P2Y ), same mechanism of action (such as\nmucociliary clearance)) as those being developed, offered or sold by Inspire on the date of the termination of Employee's employment with Inspire for any reason;\n(b) solicit, induce, encourage or attempt to induce or encourage any employee or consultant of Inspire to terminate his or her employment or consulting relationship with Inspire, or to breach any other obligation to Inspire;\n(c) solicit, interfere with, disrupt, alter or attempt to disrupt or alter the relationship, contractual or otherwise, between Inspire and any consultant, contiactor, customer, potential customer, or supplier of Inspire; or\n(d) engage in or participate in any business in the same industry as Inspire which is conducted under any name that shall be the same as or similar to the name of Inspire or any trade name used by Inspire\nEmployee acknowledges that the foregoing geographic, activity and time limitations contained in this Section 7 are reasonable and properly required for the adequate protection of Inspire’s business. In the event that any such geographic,\nactivity or time limitation is deemed to be unreasonable by a court, Employee shall submit to the reduction of either said activity or time limimtion to such activity or period as the court shall deem reasonable In the event that Employee is\nin violation of the aforementioned restrictive covenants, then the time limimtion thereof shall be extended for a period of time equal to the pendency of such proceedings, including appeals.\n8. REPRESENTATIONS Employee represents that Employee has the right to enter into this Agreement, and that Employee’s performance of all the terms of this Agreement and his duties as an employee of Inspire will not breach any\nconfidential information agreement, non-competition agreement or other agreement with any former employer of his services, either as an employee, consultant, contractor orindependent contractor, or with any other party. Employee\nrepresents that Employee will not disclose to Inspire any trade secrets or confidential or proprietary information of any third party that are not generally available to the public.\n9. DISCLOSURE OF THIS AGREEMENT. Employee hereby authorizes Inspire to notify others, including but not limited to customers of Inspire and any of Employee's future employers, of the terms of this Agreement and Employee’s\nresponsibilities under this A greement.\n10. SPECIFIC PERFORMANCE. Employee acknowledges that money damages alone would not adequame compensate Inspire in the event of a breach or threatened breach by Employee of this Agreement, and that, in addition to all other\nremedies available to Inspire at law or in equity, Inspire shall be entitled to injunctive relief for the enforcement of its rights and to an accounting of profits made during the period of such breach.\n11. No RIGHTS GRANTED. Employee undersmnds that nothing in this Agreement shall be deemed to constitute, by implication or otherwise, the grant by Inspire to the employee of any license or other right under any patent, patent\napplication or other intellectual property right or interest belonging to Inspire.\n12. SEVERARILITY.\n(a) Each of the covenants provided in this Agreement are separate and independent covenants. If any provision of this Agreement shall be determined to be invalid or unenforceable, the remainder of this Agreement shall not be affected\nthereby and any such invalid or unenforceable provision shall be reformed so as to be valid and enforceable to the fullest extent permitted by law.\n(b) It is not a defense to the enforcement of any provision of this Agreement that Inspire has breached or failed to perform any obligation or covenant hereunder or under any other agreement or undersmnding between Employee and\nnspire.\n3. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without regard to conflict of law rules All suits and claims shall be made only in smte or federal coum\nocated in North Carolina.\n4. SUPERSEDES OTHER AGREEMENTS. This Agreement contains the entire agreement of the parties with respect to subject matter hereof and supersedes all previous agreements and understandings between the parties with respect to its\nsubject matter.\n5. AMENDMENTs. This Agreement may not be changed, modified, released, discharged, abandoned or otherwise terminated in whole or in part except by an instrument in writing, agreed to and signed by the Employee and a duly\nauthorized officer of Inspire.\n \n6 ACKNOWLEDGEMENTS. THE EMPLOYEE ACKNOWLEDGES THAT (1) THE EMPLOYEE HAS READ AND FULLY UNDERSTANDS THIS AGREEMENT; (ii) THE EMPLOYEE HAS BEEN GIVEN THE OPPORTUNITY TO\nASK QUESTIONS; (iii) THE\n—\nEMPLOYEE HAS RECEIVED A COPY OF THIS AGREEMENT. THE ORIGINAL OF WHICH WILL BE RETAINED IN THE EMPLOYEE’S PERSONNEL FILE; AND (iv) THE EMPLOYEE’S OBLIGATIONS UNDER THIS\nAGREEMENT SURVIVE THE TERMINATION OF THE EMPLOYEE’S EMPLOYMENT WITH INSPIRE FOR ANY REASON.\nIN WITNESS WHEREOF. the pam'es have executed this Agieement as of the date set forth below.\nINSPIRE PHARMACEUTICALS. INC.\n4222 Emperor Boulevard\nDurham, North Camlina 27703\nBy: [3/ Christy L. Shaffer\nChief Execufive Officer\nEMPLOYEE: Bany G. Pea\nP1111 Name\n/5/ Bany G. Pea\nigna ere\nDate: 10/11/04\nAddiess: 137 New Castle Drive\nChapel Hill. NC 27517\n—\nW\nPRIOR INVENTIO NS	EXHIBIT 10.42\nEMPLOYEE\nCONFIDENTIALITY INVENTION ASSIGNMENT\nAND NON-COMPETE AGREEMENT\nTHIS EMPLOY EE CONFIDENTIALITY INVENTION A SSIGNMENT AND NON-COMPETE AGREEMENT ("Agreement") is made as of the date set forth on the signature page below between Inspire Pharmaceuticals, Inc.\n("Inspire"), and the person whose name is set forth on the signature page below as Employee ("Employee").\nIn\nconsideration of Employee's employment or continued employment by Inspire, with the intention that this Agreement shall apply to the entire period of Employee's employment with Inspire (including the period prior to the date of this\nAgreement), Employee hereby agrees as follows:\n1.\nCONFIDENTIAL INFORMATION DEFINED. "Confidential Information" means trade secrets, proprietary information and materials, and confidential knowledge and information which includes, bu is not limited to, matters of a technical\nnature (such as discoveries, ideas, concepts, designs, drawings, specifications techniques, models diagrams, test data, scientific methods and know-how, and materials such as reagents substances, chemical compounds, subcellular\nconstituents, cel or cel lines, organisms and progeny, and mutants, derivatives or replications derived from or relating to any of the foregoing materials), and matters of a business nature (such as the identity of customers and prospective\ncustomers, the nature of work being done for or discussed with customers or prospective customers, suppliers, marketing techniques and materials, marketing and development plans, pricing or pricing policies, financial information, plans\nfor further development, and any other information of a similar nature not available to the public).\n"Confidential Information" shall not include information that: (a) was in Employee's possession or in the public domain before receipt from the Company, as evidenced by the then existing publication or other public dissemination of such\ninformation in written or other documentary form; (b) becomes available to the public through no fault of Employee; (c) is received in good faith by Employee from a third party who is not subject to an obligation of confidentiality to the\nCompany or any other party; or (d) is required by a judicial or administrative authority or court having competent jurisdiction to be disclosed by Employee, provided that Employee shall promptly notify the Company and allow the\nCompany a reasonable time to oppose or limit such order.\n2. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF INSPIRE. Employee acknowledges that during the period of Employee's employment with Inspire, Employee has had or will have access to Confidential Information of Inspire.\nTherefore, Employee agrees that both during and after the period of Employee's employment with Inspire, Employee shall not without the prior written approval of Inspire, directly or indirectly (a) reveal, report, publish disclose or\ntransfer any Confidential Information of Inspire to any person or entity, or (b) use any Confidential Information of Inspire for any purpose or for the benefit of any person or entity except as may be necessary in the performance of\nEmployee's work for Inspire.\n3.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF OTHERS. Employee acknowledges that, during the period of Employee's employment with Inspire, Employee may have had or will\n-1-\nhave access to Confidential Information of third parties who have given Inspire the right to use such Confidential Information, subject to a non-disclosure agreement between Inspire and such third party. Therefore, Employee agrees that\nboth during and after the period of Employee's employment with Inspire, Employee shall not without the prior written approval of Inspire, directly or indirectly (a) reveal, report publish, disclose or transfer any Confidential Information\nof such third parties to any person or entity, or (b) use any Confidential Information of such third parties for any purpose or for the benefi of any person or entity, except as may be necessary in the performance of Employee's work for\nInspire.\n4. PROPERTY OF INSPIRE Employee acknowledges and agrees that all Confidentia Information of Inspire and all reports, drawings, blueprints, materials data, code, notes and other documents and records, whether printed typed,\nhandwritten, videotaped, transmitted or transcribed on data files or on any other type of media, and whether or not labeled or identified as confidential or proprietary, made or compiled by Employee, or made available to Employee during\nthe period of Employee employment with Inspire (including the period prior to the date of this Agreement) conceming Inspire's Confidential Information are and shall remain Inspire's property and shall be delivered to Inspire within five\n(5) business days after the termination of such employment with Inspire or at any earlier time on request of Inspire. Employee shall not retain copies of such Confidential Information, documents and records.\n5. PROPRIETARY NOTICES. Employee shall not, and shall not permi any other person to, remove any proprietary or other legends or restrictive notices contained in or included in any Confidential Information.\n6. NVENTIONS.\n(a)\nEmployee shall promptly, from time to time, fully inform and disclose to Inspire in writing all inventions, copyrightable material, designs, improvements and discoveries of any kind which Employee now has made, conceived or\ndeveloped (including prior to the date of this Agreement), or which Employee may later make, conceive or develop, during the period of Employee's employment with Inspire, which pertain to or relate to Inspire's business or any of the\nwork or businesses carried on by Inspire ("Inventions") This covenant applies to all such Inventions whether or not they are eligible for patent, copyright, trademark trade secret or other legal protection; and whether or not they are\nconceived and/or developed by Employee alone or with others; and whether or not they are conceived and/or developed during regular working hours; and whether or not they are conceived and/or developed at Inspire's facility or not.\n(b) Inventions shall not include any inventions made, conceived or developed by Employee prior to Employee's employment with Inspire, a complete list of which is set forth on Schedule A attached.\n(c) All Inventions shall be the sole and exclusive property of Inspire, and shall be deemed par of the Confidential Information of Inspire for purposes of this A greement, whether or not fixed in a tangible medium of expression. Employee\nhereby assigns all Employee's rights in all Inventions and in all related patents, copyrights and trademarks, trade secrets and other proprietary rights therein to Inspire. Without limiting the foregoing, Employee agrees that any\ncopyrightable material shall be deemed to be "works made for hire" and that Inspire shall be deemed the author of such works under the United States Copyright Act, provided that in the event and to the extent such works are determined\nnot to constitute "works made for hire" Employee hereby irrevocably assigns and transfers to Inspire all right title and interest in such works.\n-2-\n(d) Employee shall assist and cooperate with Inspire, both during and after the period of Employee's employment with Inspire, at Inspire's sole expense, to allow Inspire to obtain, maintain and enforce patent, copyright, trademark trade\nsecret and other legal protection for the Inventions. Employee shall sign such documents, and do such things necessary, to obtain such protection and to vest Inspire with full and exclusive title in all Inventions agains infringement by\nothers. Employee hereby appoints the Secretary of Inspire as Employee's attomey-in-fact to execute documents on Employee's behalf for this purpose.\n(e) Employee shall not be entitled to any additional compensation for any and all Inventions made during the period of Employee's employment with Inspire.\n7.\nCOVENANT NOT TO COMPETE. If Employee is, at any time during Employee's period of employment with Inspire, employed in the discovery or development areas of the Company in a non-clerical position, or as a director level or higher\nleve senior manager of the Company, then this Section 7 shall apply. Employee and Inspire agree that the services rendered by the Employee are unique and ireplaceable and that competitive use and knowledge of any Confidential\nInformation would substantially and irreparably injure Inspire's business, prospects and good will. Employee and Inspire also agree that Inspire's business is global in nature due to the type of products and/or services being provided\nTherefore, Employee agrees that during the period of Employee's employment with Inspire and for a period of one (1) year thereafter, Employee shall not directly or indirectly, through any other person firm, corporation or other entity\n(whether as an officer, director, employee partner, consultant, holder of equity or debt investment, lender or in any other manner or capacity):\n(a) develop, sell, market, offer to sel products and/or services anywhere in the world that have the same or similar technological approach or technology platform (e.g. same receptors (such as P2Y), same mechanism of action (such as\nmucociliary clearance)) as those being developed offered or sold by Inspire on the date of the termination of Employee's employment with Inspire for any reason;\n(b) solicit induce encourage or attempt to induce or encourage any employee or consultant of Inspire to terminate his or her employment or consulting relationship with Inspire, or to breach any other obligation to Inspire;\n(c) solicit, interfere with disrupt, alter or attempt to disrupt or alter the relationship, contractual or otherwise between Inspire and any consultant, contractor, customer, potential customer, or supplier of Inspire; or\n(d) engage in or participate in any business in the same industry as Inspire which is conducted under any name that shal be the same as or similar to the name of Inspire or any trade name used by Inspire.\nEmployee acknowledges that the foregoing geographic, activity and time limitations contained in this Section 7 are reasonable and properly required for the adequate protection of Inspire' business In the event that any such geographic,\nactivity or time limitation is deemed to be unreasonable by a court Employee shall submit to the reduction of either said activity or time limitation to such activity or period as the court shall deem reasonable. In the event that Employee is\nin violation of the aforementioned restrictive covenants, then the time limitation thereof shall be extended for a period of time equal to the pendency of such proceedings, including appeals.\n-3-\n8.\nREPRESENTATIONS Employee represents that Employee has the right to enter into this Agreement, and that Employee's performance of all the terms of this Agreement and his duties as an employee of Inspire will not breach any\nconfidential information agreement, on-competition agreement or other agreement with any former employer of his services, either as an employee consultant contractor or independent contractor, or with any other party. Employee\nrepresents that Employee will not disclose to Inspire any trade secrets or confidential or proprietary information of any third party that are not generally available to the public.\n9. DISCLOSURE OF THIS AGREEMENT. Employee hereby authorizes Inspire to notify others, including but not limited to customers of Inspire and any of Employee's future employers, of the terms of this A greement and Employee's\nresponsibilities under this Agreement.\n10. SPECIFIC PERFORMANCE. Employee acknowledges that money damages alone would not adequately compensate Inspire in the event of a breach or threatened breach by Employee of this Agreement, and that, in addition to all other\nremedies available to Inspire at law or in equity, Inspire shall be entitled to injunctive relief for the enforcement of its rights and to an accounting of profits made during the period of such breach.\n11. No RIGHTS GRANTED. Employee understands that nothing in this Agreement shall be deemed to constitute by implication or otherwise, the grant by Inspire to the employee of any license or other right under any patent patent\napplication or other intellectual property right or interest belonging to Inspire.\n12. SEVERABILITY.\n(a) Each of the covenants provided in this Agreement are separate and independent covenants. If any provision of this Agreement shall be determined to be invalid or unenforceable, the remainder of this Agreement shall not be affected\nthereby and any such invalid or unenforceable provision shall be reformed so as to be valid and enforceable to the fullest extent permitted by law.\n(b) It is not a defense to the enforcement of any provision of this Agreement that Inspire has breached or failed to perform any obligation or covenant hereunder or under any other agreement or understanding between Employee and\nInspire.\n13. GOVERNING LAW. This A greement shall be govemed by and construed in accordance with the laws of the State of North Carolina without regard to conflict of law rules All suits and claims shall be made only in state or federal courts\nlocated in North Carolina\n14. SUPERSEDES OTHER AGREEMENTS. This Agreement contains the entire agreement of the parties with respect to subject matter hereof and supersedes all previous agreements and understandings between the parties with respect to its\nsubject matter.\n15. AMENDMENTS. This Agreement may not be changed, modified, released discharged, abandoned or otherwise terminated in whole or in part except by an instrument in writing, agreed to and signed by the Employee and a duly\nauthorized officer of Inspire.\n16. ACKNOWLEDGEMENTS. THE EMPLOY E ACKNOWLEDGES THAT (i) THE EMPLOY EE HAS READ AND FULLY UNDERSTANDS THIS AGREEMENT; (ii) THE EMPLOY EI HAS BEEN GIVEN THE OPPORTUNITY TO\nASK QUESTIONS (iii) THE\n-4-\nEMPLOY EE HAS RECEIVED A COPY OF THIS AGREEMENT, THE ORIGINAL OF WHICH WILL BE RETAINED IN THE EMPLOYEE'S PERSONNEL FILE; AND (iv) THE EMPLOYEE'S OBLIGATIONS UNDER\nTHIS\nAGREEMENT SURVIVE THE TERMINATION OF THE EMPLOYEE'S EMPLOY MENT WITH INSPIRE FORANY REASON.\nIN WITNESS WHEREOF the parties have executed this Agreement as of the date set forth below.\nINSPIRE HARMACEUTICALS, INC.\n4222 Emperor Boulevard\nDurham, North Carolina 27703\nBy:\n/s/ Christy L. Shaffer\ncnnsty L. Snaner, PN.D.,\nChief Executive Officer\nEMPLOYEE\nBarry G. Pea\nPnnt Name\n/s/ Barry G. Pea\n(S1gnature Here)\nDate:\n10/11/04\nAddress:\n137 New Castle Drive\nChapel Hill, NC 27517\n-5-\nSCHEDULEA\nPRIOR INVENTIONS\n-6-	EXHIBIT 10.42\nEMPLOYEE\nCONFIDENTIALITY, INVENTION ASSIGNMENT\nAND NON-COMPETE AGREEMENT\nTHIS EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE AGREEMENT (“Agreement”) is made as of the date set forth on the signature page below between Inspire Pharmaceuticals, Inc.\n(“Inspire”), and the person whose name is set forth on the signature page below as Employee (“Employee”).\nIn consideration of Employee’s employment or continued employment by Inspire, with the intention that this Agreement shall apply to the entire period of Employee’s employment with Inspire (including the period prior to the date of this\nAgreement), Employee hereby agrees as follows:\n1. CONFIDENTIAL INFORMATION DEFINED. “Confidential Information” means trade secrets, proprietary information and materials, and confidential knowledge and information which includes, but is not limited to, matters of a technical\nnature (such as discoveries, ideas, concepts, designs, drawings, specifications, techniques, models, diagrams, test data, scientific methods and know-how, and materials such as reagents, substances, chemical compounds, subcellular\nconstituents, cell or cell lines, organisms and progeny, and mutants, derivatives or replications derived from or relating to any of the foregoing materials), and matters of a business nature (such as the identity of customers and prospective\ncustomers, the nature of work being done for or discussed with customers or prospective customers, suppliers, marketing techniques and materials, marketing and development plans, pricing or pricing policies, financial information, plans\nfor further development, and any other information of a similar nature not available to the public).\n“Confidential Information” shall not include information that: (a) was in Employee’s possession or in the public domain before receipt from the Company, as evidenced by the then existing publication or other public dissemination of such\ninformation in written or other documentary form; (b) becomes available to the public through no fault of Employee; (c) is received in good faith by Employee from a third party who is not subject to an obligation of confidentiality to the\nCompany or any other party; or (d) is required by a judicial or administrative authority or court having competent jurisdiction to be disclosed by Employee, provided that Employee shall promptly notify the Company and allow the\nCompany a reasonable time to oppose or limit such order.\n2. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF INSPIRE. Employee acknowledges that, during the period of Employee’s employment with Inspire, Employee has had or will have access to Confidential Information of Inspire.\nTherefore, Employee agrees that both during and after the period of Employee’s employment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal, report, publish, disclose or\ntransfer any Confidential Information of Inspire to any person or entity, or (b) use any Confidential Information of Inspire for any purpose or for the benefit of any person or entity, except as may be necessary in the performance of\nEmployee’s work for Inspire.\n3. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF OTHERS. Employee acknowledges that, during the period of Employee’s employment with Inspire, Employee may have had or will\n-1-\nhave access to Confidential Information of third parties who have given Inspire the right to use such Confidential Information, subject to a non-disclosure agreement between Inspire and such third party. Therefore, Employee agrees that\nboth during and after the period of Employee’s employment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal, report, publish, disclose or transfer any Confidential Information\nof such third parties to any person or entity, or (b) use any Confidential Information of such third parties for any purpose or for the benefit of any person or entity, except as may be necessary in the performance of Employee’s work for\nInspire.\n4. PROPERTY OF INSPIRE. Employee acknowledges and agrees that all Confidential Information of Inspire and all reports, drawings, blueprints, materials, data, code, notes and other documents and records, whether printed, typed,\nhandwritten, videotaped, transmitted or transcribed on data files or on any other type of media, and whether or not labeled or identified as confidential or proprietary, made or compiled by Employee, or made available to Employee, during\nthe period of Employee employment with Inspire (including the period prior to the date of this Agreement) concerning Inspire’s Confidential Information are and shall remain Inspire’s property and shall be delivered to Inspire within five\n(5) business days after the termination of such employment with Inspire or at any earlier time on request of Inspire. Employee shall not retain copies of such Confidential Information, documents and records.\n5. PROPRIETARY NOTICES. Employee shall not, and shall not permit any other person to, remove any proprietary or other legends or restrictive notices contained in or included in any Confidential Information.\n6. INVENTIONS.\n(a) Employee shall promptly, from time to time, fully inform and disclose to Inspire in writing all inventions, copyrightable material, designs, improvements and discoveries of any kind which Employee now has made, conceived or\ndeveloped (including prior to the date of this Agreement), or which Employee may later make, conceive or develop, during the period of Employee’s employment with Inspire, which pertain to or relate to Inspire’s business or any of the\nwork or businesses carried on by Inspire (“Inventions”). This covenant applies to all such Inventions, whether or not they are eligible for patent, copyright, trademark, trade secret or other legal protection; and whether or not they are\nconceived and/or developed by Employee alone or with others; and whether or not they are conceived and/or developed during regular working hours; and whether or not they are conceived and/or developed at Inspire’s facility or not.\n(b) Inventions shall not include any inventions made, conceived or developed by Employee prior to Employee’s employment with Inspire, a complete list of which is set forth on Schedule A attached.\n(c) All Inventions shall be the sole and exclusive property of Inspire, and shall be deemed part of the Confidential Information of Inspire for purposes of this Agreement, whether or not fixed in a tangible medium of expression. Employee\nhereby assigns all Employee’s rights in all Inventions and in all related patents, copyrights and trademarks, trade secrets and other proprietary rights therein to Inspire. Without limiting the foregoing, Employee agrees that any\ncopyrightable material shall be deemed to be “works made for hire” and that Inspire shall be deemed the author of such works under the United States Copyright Act, provided that in the event and to the extent such works are determined\nnot to constitute “works made for hire”, Employee hereby irrevocably assigns and transfers to Inspire all right, title and interest in such works.\n-2-\n(d) Employee shall assist and cooperate with Inspire, both during and after the period of Employee’s employment with Inspire, at Inspire’s sole expense, to allow Inspire to obtain, maintain and enforce patent, copyright, trademark, trade\nsecret and other legal protection for the Inventions. Employee shall sign such documents, and do such things necessary, to obtain such protection and to vest Inspire with full and exclusive title in all Inventions against infringement by\nothers. Employee hereby appoints the Secretary of Inspire as Employee’s attorney-in-fact to execute documents on Employee’s behalf for this purpose.\n(e) Employee shall not be entitled to any additional compensation for any and all Inventions made during the period of Employee’s employment with Inspire.\n7. COVENANT NOT TO COMPETE. If Employee is, at any time during Employee’s period of employment with Inspire, employed in the discovery or development areas of the Company in a non-clerical position, or as a director level or higher\nlevel senior manager of the Company, then this Section 7 shall apply. Employee and Inspire agree that the services rendered by the Employee are unique and irreplaceable, and that competitive use and knowledge of any Confidential\nInformation would substantially and irreparably injure Inspire’s business, prospects and good will. Employee and Inspire also agree that Inspire’s business is global in nature due to the type of products and/or services being provided.\nTherefore, Employee agrees that during the period of Employee’s employment with Inspire and for a period of one (1) year thereafter, Employee shall not, directly or indirectly, through any other person, firm, corporation or other entity\n(whether as an officer, director, employee, partner, consultant, holder of equity or debt investment, lender or in any other manner or capacity):\n(a) develop, sell, market, offer to sell products and/or services anywhere in the world that have the same or similar technological approach or technology platform (e.g., same receptors (such as P2Y), same mechanism of action (such as\nmucociliary clearance)) as those being developed, offered or sold by Inspire on the date of the termination of Employee’s employment with Inspire for any reason;\n(b) solicit, induce, encourage or attempt to induce or encourage any employee or consultant of Inspire to terminate his or her employment or consulting relationship with Inspire, or to breach any other obligation to Inspire;\n(c) solicit, interfere with, disrupt, alter or attempt to disrupt or alter the relationship, contractual or otherwise, between Inspire and any consultant, contractor, customer, potential customer, or supplier of Inspire; or\n(d) engage in or participate in any business in the same industry as Inspire which is conducted under any name that shall be the same as or similar to the name of Inspire or any trade name used by Inspire.\nEmployee acknowledges that the foregoing geographic, activity and time limitations contained in this Section 7 are reasonable and properly required for the adequate protection of Inspire’s business. In the event that any such geographic,\nactivity or time limitation is deemed to be unreasonable by a court, Employee shall submit to the reduction of either said activity or time limitation to such activity or period as the court shall deem reasonable. In the event that Employee is\nin violation of the aforementioned restrictive covenants, then the time limitation thereof shall be extended for a period of time equal to the pendency of such proceedings, including appeals.\n-3-\n8. REPRESENTATIONS. Employee represents that Employee has the right to enter into this Agreement, and that Employee’s performance of all the terms of this Agreement and his duties as an employee of Inspire will not breach any\nconfidential information agreement, non-competition agreement or other agreement with any former employer of his services, either as an employee, consultant, contractor or independent contractor, or with any other party. Employee\nrepresents that Employee will not disclose to Inspire any trade secrets or confidential or proprietary information of any third party that are not generally available to the public.\n9. DISCLOSURE OF THIS AGREEMENT. Employee hereby authorizes Inspire to notify others, including but not limited to customers of Inspire and any of Employee’s future employers, of the terms of this Agreement and Employee’s\nresponsibilities under this Agreement.\n10. SPECIFIC PERFORMANCE. Employee acknowledges that money damages alone would not adequately compensate Inspire in the event of a breach or threatened breach by Employee of this Agreement, and that, in addition to all other\nremedies available to Inspire at law or in equity, Inspire shall be entitled to injunctive relief for the enforcement of its rights and to an accounting of profits made during the period of such breach.\n11. NO RIGHTS GRANTED. Employee understands that nothing in this Agreement shall be deemed to constitute, by implication or otherwise, the grant by Inspire to the employee of any license or other right under any patent, patent\napplication or other intellectual property right or interest belonging to Inspire.\n12. SEVERABILITY.\n(a) Each of the covenants provided in this Agreement are separate and independent covenants. If any provision of this Agreement shall be determined to be invalid or unenforceable, the remainder of this Agreement shall not be affected\nthereby and any such invalid or unenforceable provision shall be reformed so as to be valid and enforceable to the fullest extent permitted by law.\n(b) It is not a defense to the enforcement of any provision of this Agreement that Inspire has breached or failed to perform any obligation or covenant hereunder or under any other agreement or understanding between Employee and\nInspire.\n13. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without regard to conflict of law rules. All suits and claims shall be made only in state or federal courts\nlocated in North Carolina.\n14. SUPERSEDES OTHER AGREEMENTS. This Agreement contains the entire agreement of the parties with respect to subject matter hereof and supersedes all previous agreements and understandings between the parties with respect to its\nsubject matter.\n15. AMENDMENTS. This Agreement may not be changed, modified, released, discharged, abandoned or otherwise terminated in whole or in part except by an instrument in writing, agreed to and signed by the Employee and a duly\nauthorized officer of Inspire.\n16. ACKNOWLEDGEMENTS. THE EMPLOYEE ACKNOWLEDGES THAT (i) THE EMPLOYEE HAS READ AND FULLY UNDERSTANDS THIS AGREEMENT; (ii) THE EMPLOYEE HAS BEEN GIVEN THE OPPORTUNITY TO\nASK QUESTIONS; (iii) THE\n-4-\nEMPLOYEE HAS RECEIVED A COPY OF THIS AGREEMENT, THE ORIGINAL OF WHICH WILL BE RETAINED IN THE EMPLOYEE’S PERSONNEL FILE; AND (iv) THE EMPLOYEE’S OBLIGATIONS UNDER THIS\nAGREEMENT SURVIVE THE TERMINATION OF THE EMPLOYEE’S EMPLOYMENT WITH INSPIRE FOR ANY REASON .\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth below.\nINSPIRE PHARMACEUTICALS, INC.\n4222 Emperor Boulevard\nDurham, North Carolina 27703\nBy:\n/s/ Christy L. Shaffer\nChristy L. Shaffer, Ph.D .,\nChief Executive Officer\nEMPLOYEE:\nBarry G. Pea\n(Print Name)\n/s/ Barry G. Pea\n(Signature Here)\nDate:\n10/11/04\nAddress:\n137 New Castle Drive\nChapel Hill, NC 27517\n-5-\nSCHEDULE A\nPRIOR INVENTIONS\n-6-
+52d16f549c8c3f0b2a1ebab40576f4dc.pdf	jurisdiction party	EX-10 .14 2 ex10-14 .txt EX-10.14 28 EXHIBIT V NONDISCLOSURE AGREEMENT THIS AGREEMENT (the "Agreement"), is made as of , 2000, (the "Effective\nDate") by and between JDA SOFTWARE, INC. , a n Arizona corporation ("JDA") and COMPUWARE CORPORATION, a Michigan corporation ("Compuware").\nRECITALS 1. In connection with the evaluation or pursuit of certain mutually beneficial business opportunities, JDA and Compuware may disclose valuable\nproprietary information to each other relating to their respective operations and businesses. 2. JDA and Compuware would like to protect the confidentiality of,\nmaintain their respective rights in and prevent the unauthorized use and disclosure of such information. AGREEMENT JDA and Compuware hereby agree: 1.\nCONFIDENTIAL INFORMATION. As used in this Agreement, "Confidential Information" means all information of either party that is not generally known to the\npublic, whether of a technical, business or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, software,\ndesigns, specifications and prototypes, customers, business plans, promotional and marketing activities, finances and other business affairs of such party), that is\ndisclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party"), and that has been identified as being proprietary and/or confidential or\nthat by the nature of the circumstances surrounding the disclosure ought to be treated as propriety and confidential. Confidential Information also includes all\ninformation concerning the existence and progress of the parties' dealings. 2 . USE OF CONFIDENTIAL INFORMATION . The Receiving Party, except as\nexpressly provided in this Agreement, will not disclose it to anyone without the Disclosing Party's prior written consent. The Receiving Party will not use, or permit\nother to use, Confidential Information for any purpose other than to pursue discussion and evaluation of potential business dealings between the parties in\naccordance with the nature of discussions between the parties. The Receiving Party will take all reasonable measures to avoid disclosure, dissemination or\nunauthorized use of Confidential Information, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature. 3 .\nEXCEPTIONS. The provisions of Section 2 will not apply to any information that (i) is or becomes publicly available without breach of this Agreement; (ii) can be\nshown by documentation to have been known to the Receiving Party at the time of its receipt from the Disclosing Party; (iii) is rightfully received from a third party\nwho did not acquire or disclose such information by a wrongful or tortuous act; or (iv) can be shown by documentation to have been independently developed by\nthe Receiving Party without reference to any Confidential information. 4 . RECEIVING PARTY PERSONNEL. The Receiving Party will restrict the possession,\nknowledge, development and use of Confidential Information to its employees, agents, subcontractors and entities controlled by or controlling it (collectively,\n"Personnel") who have a need to know Confidential Information in connection with the purposes set forth in Section 2. The Receiving Party's Personnel will have\naccess only to the Confidential Information they need for such purposes. The Receiving Party will ensure that its personnel comply with this Agreement. 5 .\nDISCLOSURES TO GOVERNMENTAL ENTITIES. If the Receiving Party becomes legally obligated to disclose Confidential Information by any governmental\nentity with jurisdiction over it, the Receiving Party will give the Disclosing Party prompt written notice sufficient to allow the Disclosing Party to seek a protective\norder or other appropriate remedy. The Receiving Party will disclose only such information as is legally required and will use its reasonable best efforts to obtain\nconfidential treatment for any Confidential Information that is so disclosed. - 28 - 29 6 . OWNERSHIP OF CONFIDENTIAL INFORMATION . All Confidential\nInformation will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by license or otherwise, to use the confidential\nInformation except as expressly provided herein. 7. RETURN OF CONFIDENTIAL INFORMATION . Upon the Disclosing Party's written request, the Receiving\nParty promptly will return all tangible material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and\nexcerpts of Confidential Information). 8 GOVERNING LAW; ETC. This Agreement will be governed by internal laws of the State of Arizona, without reference to\nits choice of law rules, and may be executed in counterpart copies. If a provision of this Agreement is held invalid under any applicable law, such invalidity will not\naffect any other provision of this Agreement that can be given effect without the invalid provision. All terms and conditions of this Agreement will be deemed\nenforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform any and all terms or conditions to give\nthem such effect. Further, the venue for arbitration or litigation will be in Phoenix, Arizona, and the parties consent to such jurisdiction. 9. NONWAIVER . Any\nfailure by either to enforce the other party's strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce\nsuch provision or any other provision of this Agreement. 10. TERMINATION . This Agreement will terminate automatically upon the completion or termination of\ndealings between JDA and Compuware; provided, however, that each party's obligations with respect to the other party's Confidential Information will survive\ncompletion or termination of the dealings between the parties. 11. EXPORTATION/TRANSMISSION OF CONFIDENTIAL INFORMATION. The Receiving Party\nacknowledges that the Confidential Information and any related materials or information provided hereunder are subject to the export control laws and regulations\nof the U.S ., and any amendments thereof. The Receiving Party confirms that it will not export or re-export these items, directly or indirectly, either to (i) any\ncountries that are subject to U.S. export restrictions (currently including, but not necessarily limited to, Cuba, the Federal Republic of Yugoslavia (Serbia and\nMontenegro), Iran, Iraq, Libya, North Korea, and Syria); and (ii) any development production of nuclear, chemical or biological weapons; or (iii) any third party who\nhas been prohibited from participating in the U.S. export transactions by any federal agency of the U.S . government. 12. INDEPENDENT DEVELOPMENT. The\nDisclosing Party acknowledges that the Receiving Party may currently or in the future be developing information internally, or receiving information from other\nparties, that is similar to the Confidential Information. Accordingly, nothing in this Agreement will be construed as a representation or agreement that the\nReceiving Party will not develop or have developed for its products, concepts, systems or techniques that are similar to or compete with products, concepts,\nsystems or techniques contemplated by or embodied in the Confidential Information, provided that the Receiving Party does not violate any of its obligations\nunder this Agreement in connection with such development. 13. INJUNCTIVE RELIEF. The Receiving Party acknowledges that disclosure or use of Confidential\nInformation in violation of this Agreement could cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an\ninadequate remedy. The Receiving Party therefore agrees that the Disclosing Party will have the right, in addition to its other rights and remedies, to seek\ninjunctive relief for any violation of this Agreement. 14 . LIMITED RELATIONSHIP . This Agreement will not create a joint venture, partnership or other formal\nbusiness relationship or entity of any kind, or an obligation to form any such relationship or entity. Each party will act as an independent contractor and not as an\nagent of the other party for any purpose, and neither will have the authority to bind the other. - 29 - 30 15. CUMULATIVE OBLIGATIONS . Each party's obligations\nhereunder are in addition to, and not exclusive of, any and all of its other obligations and duties to the other party, whether express, implied, and in fact or in law.\n16 INTEGRATION/PURCHASE ORDER. This Agreement constitutes the entire agreement between the parties with respect to the Confidential Information and\nsupersedes all previous proposals (both oral and written), negotiations, representations, commitments, writings, agreements, and all other communications\nbetween the parties. This Agreement may only be altered or modified by written instrument duly executed by both parties. In the event of any conflict between the\nterms and conditions of this Agreement and the terms and conditions of any purchase order, the terms and conditions of this Agreement will control. The\nundersigned represent that they are duly authorized representatives of the parties and have full authority to bind the parties, including any indicated affiliates of\nthe parties, by execution of this Agreement. The parties have executed and delivered this Agreement, and it will be effective as of the Effective Date.\nCOMPUWARE CORPORATION JDA SOFTWARE, INC . Signature____________________________ Signature____________________________\nName_________________________________ Name_________________________________ Title________________________________\nTitle________________________________ Date_________________________________ Date_________________________________ - 30 -	EX-10.14 2 ex10-l4.txt EX-10.14 28 EXHIBIT V NONDISCLOSURE AGREEMENT THIS AGREEMENT (the "Agreement"), is made as of, 2000, (the "Effective\nDate") by and between) DA SOFTWARE, INC., an Arizona corporation ("J DA") and COMPUWARE CORPORATION, a Michigan corporation ("Compuware").\nREC ITALS 1. In connection with the evaluation or pursuit of certain mutually beneficial business opportunities,J DA and Compuware may disclose valuable\nproprietary information to each olher relating to their respective operations and businesses. 2.) DA and Compuware would like to protectthe confidentiality of,\nmaintain Iheir respective rights in and preventthe unaulhorized use and disclosure ofsuch information. AGRE EME NT I DA and Compuware hereby agree: 1.\nCONFIDENTIAL IN FORMATION. As used in this Agreement, "Confidential Information" means all information ofeither party that is notgenerally known to Ihe\npublic, whether of a technical, business or other nature (including, without limitation, trade secreIs, know-how and information relating to Ihe technology, software,\ndesigns, specifications and prototypes, customers, business plans, promotional and marketing activities, finances and olher business affairs of such party), Ihat is\ndisclosed by one party (Ihe "Disclosing Party") to the other party (Ihe "Receiving Party"), and that has been identified as being proprietary and/or confidential or\nIhat by the nature of the circumstances surrounding Ihe disclosure oughtto be treated as propriety and confidential. Confidential Information also includes all\ninformation concerning Ihe existence and progress ofthe parties' dealings. 2. USE OF CONFIDE NTIAL INFORMATION. The Receiving Party, except as\nexpressly provided in this Agreement, will not disclose it to anyone withoutthe Disclosing Party's prior written consent. The Receiving Party will not use, or permit\nother to use, Confidential Information for any purpose other Ihan to pursue discussion and evaluation of potential business dealings between the parties in\naccordance with the nature ofdiscussions between the parties. The Receiving Party will take all reasonable measures to avoid disclosure, dissemination or\nunauthorized use ofConfidential Information, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature. 3.\nEXC E PTIONS. The provisions of Section 2 will not apply to any information Ihat (i) is or becomes publicly available wiIhout breach of Ihis Agreement; (ii) can be\nshown by documentation to have been known to the Receiving Party at Ihe time of its receipt from Ihe Disclosing Party; (iii) is rightfully received from a third party\nwho did not acquire or disclose such information by a wrongful or tortuous act; or (iv) can be shown by documentation to have been independently developed by\nIhe Receiving Party without reference to any Confidential information. 4. REC E IVING PARTY P E RSONN E L. The Receiving Party will restrictthe possession,\nknowledge, development and use of Confidential Information to its employees, agents, subcontractors and entities controlled by or controlling it (collectively,\n"Personnel") who have a need to know Confidential Information in connection wiIh Ihe purposes set foth in Section 2. The Receiving Party's Personnel will have\naccess only to the Confidential Information they need for such purposes. The Receiving Party will ensure that its personnel comply with this Agreement. 5.\nDISC LOSU RES TO GOVE RN ME NTAL E NTITIES. If Ihe Receiving Party becomes legally obligated to disclose Confidential Information by any governmental\nentity wiIh jurisdiction over it, the Receiving Party will give the Disclosing Party prompt written notice sufficient to allow the Disclosing Party to seek a protective\norder or other appropriate remedy. The Receiving Party will disclose only such information as is legally required and will use its reasonable bestef‘forls to obtain\nconfidential treatment for any Confidential Information that is so disclosed. -28- 29 6. OW N E RS HIP OF CON FIDE NTIAL IN FOR MATION. All Confidential\nInformation will remain the exclusive property of the Disclosing Party, and Ihe Receiving Party will have no rights, by license or oIhenNise, to use the confidential\nInformation except as expressly provided herein. 7. RETURN OF CONFIDE NTIAL INFORMATION. Upon Ihe Disclosing Party's written request, the Receiving\nParty promptly will return all tangible material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and\nexcerpIs ofConfidential Information). 8 GOVERNING LAW; ETC. This Agreementwill be governed by internal laws of the State ofArizona, wiIhout reference to\niIs choice of law rules, and may be executed in counterpart copies. If a provision of Ihis Agreement is held invalid under any applicable law, such invalidity will not\naffect any other provision of this Agreementthatcan be given effectwithout Ihe invalid provision. All terms and conditions of Ihis Agreementwill be deemed\nenforceable to the fullestextent permissible under applicable law, and, when necessary, the court is requested to reform any and all terms or conditions to give\nIhem such effect. Further, Ihe venue for arbitration or litigation will be in Phoenix, Arizona, and the parties consent to such jurisdiction. 9. NO NWAIVE R. Any\nfailure by eiIher to enforce Ihe other party's strict performance of any provision of Ihis Agreementwill not constitute a waiver of iIs rightto subsequently enforce\nsuch provision or any other provision ofthis Agreement. 10. TE RMINATION. This Agreement will terminate automatically upon the completion or termination of\ndealings betweenJ DA and Compuware; provided, however, Ihateach party's obligations with respectto the other party's Confidential Information will survive\ncompletion ortermination ofthe dealings between the parties. 11. EXPORTATION/TRANSMISSION OF CONFIDENTIAL INFORMATION. The Receiving Party\nacknowledges thatthe Confidential Information and any related materials or information provided hereunder are subject to the exportcontrol laws and regulations\nof Ihe US, and any amendments thereof. The Receiving Party confirms that it will not exportor re-exportthese items, directly or indirecij, eiIher to (i) any\ncountries thatare subject to US. export restrictions (currently including, but notnecessarily limited to, Cuba, the Federal Republic onugoslavia (Serbia and\nMontenegro), Iran, Iraq, Libya, North Korea, and Syria); and (ii) any developmentproduction of nuclear, chemical or biological weapons; or (iii) any third party who\nhas been prohibited from participating in the U .S. exporttransactions by any federal agency of Ihe US. government. 12. IN DEP E N DE NT DEVE LOP ME NT. The\nDisclosing Party acknowledges thatthe Receiving Party may currently or in the future be developing information internally, or receiving information from other\nparties, that is similar to Ihe Confidential Information. Accordingly, noIhing in this Agreementwill be construed as a representation or agreementthatthe\nReceiving Party will notdevelop or have developed for its products, concepts, systems or techniques Ihat are similar to or compete wiIh producIs, concepts,\nsystems or techniques contemplated by or embodied in Ihe Confidential Information, provided Ihat Ihe Receiving Party does not violate any of its obligations\nunder this Agreement in connection wiIh such development. 13. IN) U NCTIVE RELIEF. The Receiving Party acknowledges Ihatdisclosure or use ofConfidential\nInformation in violation of this Agreement could cause irreparable harm to Ihe Disclosing Party for which monetary damages may be difficult to ascertain or an\ninadequate remedy. The Receiving Party Iherefore agrees Ihatthe Disclosing Party will have Ihe right, in addition to its other rights and remedies, to seek\ninjunctive relieffor any violation of this Agreement. 14. LIMITE D RELATIONSHIP. This Agreement will notcreate a joint venture, partnership or other formal\nbusiness relationship or entity of any kind, or an obligation to form any such relationship or entity. Each party will act as an independentcontractor and not as an\nagent of the other party for any purpose, and neiIher will have Ihe authority to bind Ihe other. -29- 30 15. CUMU LATIVE OBLIGATIONS. Each party's obligations\nhereunder are in addition to, and notexclusive of, any and all of its olher obligations and duties to the other party, whether express, implied, and in fact or in law.\n16 INTEG RATION/PU RC HASE ORDE R. This Agreementconstitutes the entire agreement between the parties with respectto the Confidential Information and\nsupersedes all previous proposals (both oral and written), negotiations, representations, commitments, writings, agreements, and all olher communications\nbetween Ihe parties. This Agreement may only be altered or modified by written instrument duly executed by boIh parties. In the event of any conflict between the\nterms and conditions of Ihis Agreement and the terms and conditions of any purchase order, Ihe terms and conditions of Ihis Agreementwill control. The\nundersigned representthatthey are duly authorized representatives ofthe parties and have full authority to bind Ihe parties, including any indicated affiliates of\nIhe parties, by execution ofthis Agreement. The parties have executed and delivered Ihis Agreement, and itwill be effective as of the Effective Date.\nCOMPUWARE CORPORATION I DA SOFTWARE, INC. Signature Signature	EX-10.14 ex10-14.b EX-10.14 28 EXHIBIT V NONDISCLOSURE AGREEMENT THIS AGREEMENT (the "Agreement"), is made as of 2000, (the "Effective\nDate") by and between DA SOFTWARE, INC., an Arizona corporation "JDA") and COMPUWARE CORPORATION, a Michigan corporation "Compuware").\nRECITALS 1. In connection with the evaluation or pursuit of certain mutually beneficial business opportunities, J DA and Compuware may disclose valuable\nproprietary information to each other relating to their respective operations and businesses. 2. DA and Compuware would like to protect the confidentiality of,\nmaintain their respective rights in and prevent the unauthorized use and disclosure of such information. AGREEMENT J DA and Compuware hereby agree: 1.\nCONFIDENTIAL NFORMATION. As used in this Agreement, Confidential Information" means all information of either party that is not generally known to the\npublic, whether of a technical, business or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, software,\ndesigns, specifications and prototypes, customers, business plans, promotional and marketing activities, finances and other business affairs of such party), that is\ndisclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party"), and that has been identified as being proprietary and/or confidential or\nthat by the nature of the circumstances surrounding the disclosure ought to be treated as propriety and confidential. Confidential Information also includes all\ninformation concerning the existence and progress of the parties' dealings. 2. USE OF CONFIDENTIAL NFORMATION. The Receiving Party, except as\nexpressly provided in this Agreement, will not disclose it to anyone without the Disclosing Party's prior written consent. The Receiving Party will not use, or permit\nother to use, Confidential Information for any purpose other than to pursue discussion and evaluation of potential business dealings between the parties in\naccordance with the nature of discussions between the parties. The eceiving Party will take all reasonable measures to avoid disclosure, dissemination or\nunauthorized use of Confidential Information, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature\n3.\nEXCEPTIONS. The provisions of Section 2 will not apply to any information that (i) is or becomes publicly available without breach of this Agreement; (ii) can be\nshown by documentation to have been known to the Receiving Party at the time of its receipt from the Disclosing Party; (iii) is rightfully received from a third party\nwho did not acquire or disclose such information by a wrongful or tortuous act; or (iv) can be shown by documentation to have been independently developed by\nthe Receiving arty without reference to any Confidentia information. 4. RECEIVING PARTY PERSONNEL. The Receiving Party will restrict the possession,\nknowledge, development and use of Confidential Information to its employees, agents, subcontractors and entities controlled by or controlling it (collectively,\n"Personnel") who have a need to know Confidential Information in connection with the purposes set forth in Section 2. The Receiving Party's Personnel will have\naccess only to the Confidentia Information they need for such purposes. The eceiving Party will ensure that its personnel comply with this Agreement. 5.\nDISCLOSURES TO GOVERNMENTAL ENTITIES. If the Receiving Party becomes legally obligated to disclose Confidential Information by any governmental\nentity with jurisdiction over it, the eceiving arty will give the Disclosing Party prompt written notice sufficient to allow the Disclosing Party to seek a protective\norder or other appropriate remedy. The Receiving arty will disclose only such information as is legally required and will use its reasonable best efforts to obtain\nconfidential treatment for any Confidential Information that is so disclosed. OWNERSHIP OF CONFIDENTIAL NFORMATION. All Confidential\nInformation wil remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by license or otherwise, to use the confidential\nInformation except as expressly provided herein. 7. RETURN OF CONFIDENTIAL INFORMATION. Jpon the Disclosing Party's written request, the Receiving\nParty promptly will return all tangible material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and\nexcerpts of Confidential Information). 8 GOVERNING LAW; ETC. This Agreement will be governed by internal laws of the State of Arizona, without reference to\nits choice of law rules, and may be executed in counterpart copies. If a provision of this Agreement is held invalid under any applicable law, such invalidity will not\naffect any other provision of this Agreement that can be given effect without the invalid provision. All terms and conditions of this Agreement will be deemed\nenforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform any and all terms or conditions to give\nthem such effect. Further, the venue for arbitration or litigation will be in Phoenix, Arizona, and the parties consent to such jurisdiction. 9. NONWAIVER. Any\nfailure by either to enforce the other party's strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently\nenforce\nsuch provision or any other provision of this Agreement. 10. TERMINATION. This Agreement wil terminate automatically upon the completion or termination of\ndealings between DA and Compuware; provided, however, that each party's obligations with respect to the other party's Confidentia Information will survive\ncompletion or termination of the dealings between the parties. 11. EXPORTATION/TRANSMISSION OF CONFIDENTIAL NFORMATION. The R eceiving Party\nacknowledges that the Confidential Information and any related materials or information provided hereunder are subject to the export control laws and regulations\nof the U.S., and any amendments thereof. The eceiving Party confirms that it will not export or re-export these items, directly or indirectly, either to (i) any\ncountries that are subject to U.S. export restrictions (currently including, but not necessarily limited to, Cuba, the Federal epublic of Yugoslavia erbia and\nMontenegro), Iran, Iraq, Libya, North Korea, and yria); and (ii) any development production of nuclear, chemical or biological weapons; or (iii) any third party who\nhas been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government. 12. INDEPENDENT DEVELOPMENT. The\nDisclosing Party acknowledges that the Receiving Party may currently or in the future be developing information internally, or receiving information from other\nparties, that is similar to the Confidential Information. Accordingly, nothing in this Agreement will be construed as a representation or agreement that the\nReceiving Party will not develop or have developed for its products, concepts, systems or techniques that are similar to or compete with products, concepts,\nsystems or techniques contemplated by or embodied in the Confidentia Information, provided that the Receiving Party does not violate any of its obligations\nunder this Agreement in connection with such development. 13. INJ UNCTIVE RELIEF. The eceiving Party acknowledges that disclosure or use of Confidential\nInformation in violation of this Agreement could cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an\ninadequate remedy. The eceiving Party therefore agrees that the Disclosing Party will have the right, in addition to its other rights and remedies, to seek\ninjunctive relief for any violation of this Agreement. 14. LIMITED RELATIONSHIP. This Agreement will not create a joint venture, partnership or other formal\nbusiness relationship or entity of any kind, or an obligation to form any such relationship or entity. Each party will act as an independent contractor and\nnot\nas\nan\nagent of the other party for any purpose, and neither will have the authority to bind the other -29- 15. CUMULATIVE OBLIGATIONS. Each party's obligations\nhereunder are in addition to, and not exclusive of, any and all of its other obligations and duties to the other party, whether express, implied, and in\nfact\nor\nin\nlaw.\n16 INTEGRATION/PURCHASE ORDER. This Agreement constitutes the entire agreement between the parties with respect to the Confidentia Information and\nsupersedes all previous proposals (both oral and written), negotiations, representations, commitments, writings, agreements, and all other communications\nbetween the parties. This Agreement may only be altered or modified by written instrument duly executed by both parties. In the event of any conflict between\nthe\nterms and conditions of this Agreement and the terms and conditions of any purchase order, the terms and conditions of this Agreement will control. The\nundersigned represent that they are duly authorized representatives of the parties and have full authority to bind the parties, including any indicated affiliates\nof\nthe\nparties, by execution of this Agreement. The parties have executed and delivered this Agreement, and it will be effective as of the Effective Date.\nCOMPUWARE CORPORATION DA SOFTWARE, INC ignature\nSignature\nName\nName\nTitle\nTitle\nDate\nDate\n30	EX-10 .14 2 ex10-14 .txt EX-10.14 28 EXHIBIT V NONDISCLOSURE AGREEMENT THIS AGREEMENT (the "Agreement"), is made as of , 2000, (the "Effective\nDate") by and between JDA SOFTWARE, INC. , a n Arizona corporation ("JDA") and COMPUWARE CORPORATION, a Michigan corporation ("Compuware").\nRECITALS 1. In connection with the evaluation or pursuit of certain mutually beneficial business opportunities, JDA and Compuware may disclose valuable\nproprietary information to each other relating to their respective operations and businesses. 2. JDA and Compuware would like to protect the confidentiality of,\nmaintain their respective rights in and prevent the unauthorized use and disclosure of such information. AGREEMENT JDA and Compuware hereby agree: 1.\nCONFIDENTIAL INFORMATION. As used in this Agreement, "Confidential Information" means all information of either party that is not generally known to the\npublic, whether of a technical, business or other nature (including, without limitation, trade secrets, know-how and information relating to the technology, software,\ndesigns, specifications and prototypes, customers, business plans, promotional and marketing activities, finances and other business affairs of such party), that is\ndisclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party"), and that has been identified as being proprietary and/or confidential or\nthat by the nature of the circumstances surrounding the disclosure ought to be treated as propriety and confidential. Confidential Information also includes all\ninformation concerning the existence and progress of the parties' dealings. 2 . USE OF CONFIDENTIAL INFORMATION . The Receiving Party, except as\nexpressly provided in this Agreement, will not disclose it to anyone without the Disclosing Party's prior written consent. The Receiving Party will not use, or permit\nother to use, Confidential Information for any purpose other than to pursue discussion and evaluation of potential business dealings between the parties in\naccordance with the nature of discussions between the parties. The Receiving Party will take all reasonable measures to avoid disclosure, dissemination or\nunauthorized use of Confidential Information, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature. 3 .\nEXCEPTIONS. The provisions of Section 2 will not apply to any information that (i) is or becomes publicly available without breach of this Agreement; (ii) can be\nshown by documentation to have been known to the Receiving Party at the time of its receipt from the Disclosing Party; (iii) is rightfully received from a third party\nwho did not acquire or disclose such information by a wrongful or tortuous act; or (iv) can be shown by documentation to have been independently developed by\nthe Receiving Party without reference to any Confidential information. 4 . RECEIVING PARTY PERSONNEL. The Receiving Party will restrict the possession,\nknowledge, development and use of Confidential Information to its employees, agents, subcontractors and entities controlled by or controlling it (collectively,\n"Personnel") who have a need to know Confidential Information in connection with the purposes set forth in Section 2. The Receiving Party's Personnel will have\naccess only to the Confidential Information they need for such purposes. The Receiving Party will ensure that its personnel comply with this Agreement. 5 .\nDISCLOSURES TO GOVERNMENTAL ENTITIES. If the Receiving Party becomes legally obligated to disclose Confidential Information by any governmental\nentity with jurisdiction over it, the Receiving Party will give the Disclosing Party prompt written notice sufficient to allow the Disclosing Party to seek a protective\norder or other appropriate remedy. The Receiving Party will disclose only such information as is legally required and will use its reasonable best efforts to obtain\nconfidential treatment for any Confidential Information that is so disclosed. - 28 - 29 6 . OWNERSHIP OF CONFIDENTIAL INFORMATION . All Confidential\nInformation will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by license or otherwise, to use the confidential\nInformation except as expressly provided herein. 7. RETURN OF CONFIDENTIAL INFORMATION . Upon the Disclosing Party's written request, the Receiving\nParty promptly will return all tangible material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and\nexcerpts of Confidential Information). 8 GOVERNING LAW; ETC. This Agreement will be governed by internal laws of the State of Arizona, without reference to\nits choice of law rules, and may be executed in counterpart copies. If a provision of this Agreement is held invalid under any applicable law, such invalidity will not\naffect any other provision of this Agreement that can be given effect without the invalid provision. All terms and conditions of this Agreement will be deemed\nenforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform any and all terms or conditions to give\nthem such effect. Further, the venue for arbitration or litigation will be in Phoenix, Arizona, and the parties consent to such jurisdiction. 9. NONWAIVER . Any\nfailure by either to enforce the other party's strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce\nsuch provision or any other provision of this Agreement. 10. TERMINATION . This Agreement will terminate automatically upon the completion or termination of\ndealings between JDA and Compuware; provided, however, that each party's obligations with respect to the other party's Confidential Information will survive\ncompletion or termination of the dealings between the parties. 11. EXPORTATION/TRANSMISSION OF CONFIDENTIAL INFORMATION. The Receiving Party\nacknowledges that the Confidential Information and any related materials or information provided hereunder are subject to the export control laws and regulations\nof the U.S ., and any amendments thereof. The Receiving Party confirms that it will not export or re-export these items, directly or indirectly, either to (i) any\ncountries that are subject to U.S. export restrictions (currently including, but not necessarily limited to, Cuba, the Federal Republic of Yugoslavia (Serbia and\nMontenegro), Iran, Iraq, Libya, North Korea, and Syria); and (ii) any development production of nuclear, chemical or biological weapons; or (iii) any third party who\nhas been prohibited from participating in the U.S. export transactions by any federal agency of the U.S . government. 12. INDEPENDENT DEVELOPMENT. The\nDisclosing Party acknowledges that the Receiving Party may currently or in the future be developing information internally, or receiving information from other\nparties, that is similar to the Confidential Information. Accordingly, nothing in this Agreement will be construed as a representation or agreement that the\nReceiving Party will not develop or have developed for its products, concepts, systems or techniques that are similar to or compete with products, concepts,\nsystems or techniques contemplated by or embodied in the Confidential Information, provided that the Receiving Party does not violate any of its obligations\nunder this Agreement in connection with such development. 13. INJUNCTIVE RELIEF. The Receiving Party acknowledges that disclosure or use of Confidential\nInformation in violation of this Agreement could cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an\ninadequate remedy. The Receiving Party therefore agrees that the Disclosing Party will have the right, in addition to its other rights and remedies, to seek\ninjunctive relief for any violation of this Agreement. 14 . LIMITED RELATIONSHIP . This Agreement will not create a joint venture, partnership or other formal\nbusiness relationship or entity of any kind, or an obligation to form any such relationship or entity. Each party will act as an independent contractor and not as an\nagent of the other party for any purpose, and neither will have the authority to bind the other. - 29 - 30 15. CUMULATIVE OBLIGATIONS . Each party's obligations\nhereunder are in addition to, and not exclusive of, any and all of its other obligations and duties to the other party, whether express, implied, and in fact or in law.\n16 INTEGRATION/PURCHASE ORDER. This Agreement constitutes the entire agreement between the parties with respect to the Confidential Information and\nsupersedes all previous proposals (both oral and written), negotiations, representations, commitments, writings, agreements, and all other communications\nbetween the parties. This Agreement may only be altered or modified by written instrument duly executed by both parties. In the event of any conflict between the\nterms and conditions of this Agreement and the terms and conditions of any purchase order, the terms and conditions of this Agreement will control. The\nundersigned represent that they are duly authorized representatives of the parties and have full authority to bind the parties, including any indicated affiliates of\nthe parties, by execution of this Agreement. The parties have executed and delivered this Agreement, and it will be effective as of the Effective Date.\nCOMPUWARE CORPORATION JDA SOFTWARE, INC . Signature____________________________ Signature____________________________\nName_________________________________ Name_________________________________ Title________________________________\nTitle________________________________ Date_________________________________ Date_________________________________ - 30 -
+534ad09082139ac40a6125aa41fa1df5.pdf	jurisdiction party	Exhibit 10.2\nNon-Solicitation and Confidentiality Agreement\nThis Non-Solicitation and Confidentiality Agreement (“Agreement”) is made on this ___ day of ____, between _______\n_____ ______ ____\n(the “Employee”) and Peoples Bank SB (the “Peoples” or “Bank”). In consideration of Employee’s\nemployment and continued employment, the payment of remuneration and benefits by the Bank and the Bank’s promise\nto provide Employee with access to customers, Confidential Information and trade secrets, which the parties recognize to\nbe good, valuable and sufficient consideration for the Agreement, Employee and the Bank agree as follows:\n1.\nEmployee agrees that during the term of his/her employment, and for a period of one year from the date of his/her\ntermination of employment for any reason, Employee will not, in a competitive capacity, on behalf of any person or\nentity other than the Bank, directly or indirectly:\n(a)\nsolicit, divert (or attempt to solicit or divert) or accept competitive business from any customer of the Bank\nwith whom Employee has had contact (either directly or indirectly), provided services to, or over which\nEmployee has had responsibility at any time in the one (1) year preceding his/her separation;\n(b)\nsolicit, divert (or attempt to solicit or divert) or accept competitive business from any customer of Bank about\nwhom Employee has obtained Confidential Information; and\n(c)\ndirectly or indirectly assist in the research and development of products or services where such research and\ndevelopment would be aided by any Confidential Information that Employee has learned in the course of his/her\nrelationship with the Bank.\nFor purposes of this Agreement, the term “competitive capacity” shall mean (i) performing tasks or duties\nsimilar to those Employee performed in his/her last year of employment at the Bank for a competitor of\nthe Bank; (ii) managing/supervising those who, for a competitor of the Bank, perform tasks or duties\nsimilar to those which Employee performed in the last year of his/her employment at Bank; or (iii)\nperforming, on behalf of a competitor of the Bank, tasks or duties in which Employee utilizes any\nConfidential Information that he/she learned in the course of his/her relationship with the Bank.\n2.\nEmployee acknowledges and agrees that as a result of his/her employment with the Bank, he/she will have\naccess to and be involved in the development and/or utilization of the Bank’s (and its parent’s, affiliates’ and/or\nsubsidiaries’) confidential and proprietary business information (“Confidential Information”). Accordingly,\nEmployee agrees that he/she shall not, either during his/her employment by the Bank or at any time thereafter,\ndisclose to anyone (except as authorized by the Bank in the furtherance of its business) or use in competition with\nPeoples, any of the Bank’s (or its parent’s, affiliate’s and/or subsidiaries’) Confidential Information. The Bank’s’\n(and its parent’s, affiliates’ and/or subsidiaries’) Confidential Information includes, without limitation, all materials\nand information (whether written or not) about Peoples’ contracts, business plans, business partners, customers\nand prospective customers (including their product requirements and payment terms), vendors, suppliers, current\nand prospective products and services, sales, marketing, pricing, costs, budgets, financing, promotions,\ntechniques, processes and forms, purchasing, finances, accounting, research, improvements, discoveries,\ninventions, experimental works-in-progress, formulae, software, licenses, business methods and tactics, quality\ncontrol parameters and techniques, internal communications, production, output, profit margins, and/or any other\naspect of the Bank’s business or operations (including, but not limited to, information concerning, relating to, or\narising out of relationships with suppliers, vendors, customers, lenders, or other business affiliates) which are not\ngenerally known by the public at large and/or which provide the Bank with a competitive advantage.\n3.\nEmployee recognizes that all information, however stored or memorialized, and all identification cards, keys, access codes,\nmarketing materials, samples, notes, customer, supplier and other lists, documents, forms, computers, records, and other\nequipment or property which the Bank provides to or makes available to him/her are the sole property of the Bank. Employee\nshall use such property solely for the benefit of Peoples and for no other purpose. Upon the cessation of his/her employment\nwith the Bank and without prior request, Employee shall (i) refrain from taking any such property from the Bank’s premises;\n(ii) immediately return to the Bank any such property that may be in his/her possession or control (including any and all\ncopies thereof); (iii) permanently delete any such property that may remain on any personal storage device that remains in\nEmployee’s possession after his/her employment ends; and (iv) certify in writing that Employee has complied with this\nparagraph.\n4.\nFor a period of one year after his/her termination, the Employee agrees that he/she will not, directly or indirectly,\nfor himself/herself or for any third party, solicit, induce, recruit, or cause another person in the employ of the Bank\n(i) who reported directly or indirectly to the Employee, (ii) whose confidential employment information was\naccessible by the Employee, or (iii) whose customer relationships were known to the Employee, to terminate\nhis/her employment for the purpose of joining, associating, or becoming employed with another person, business\norganization or other entity that is in competition with any product or service provided by the Bank, or any\nbusiness or activity of the Bank.\n5.\nEmployee agrees that it would be difficult to measure damages to the Bank from any breach of covenants contained in this\nAgreement, but that such damages from any breach would be great, incalculable, and irremediable, and that damages would\nbe an inadequate remedy. Accordingly, Employee agrees to waive any claim that Peoples has an adequate remedy at law and\nfurther agrees that the Bank may have specific performance of the terms of this Agreement in any court having jurisdiction.\nEmployee further agrees that if he/she violates this Agreement, the Employee hereby agrees to indemnify the\nBank against any and all damages, costs, and expenses, including reasonable attorneys’ fees, incurred by the\nBank in enforcing the terms of this Agreement, or prosecuting any action or claim arising by reason of the\nEmployee’s violation of this Agreement.\n6.\nThe existence of any claim or cause of action by Employee against the Bank shall not constitute a defense to the\nenforcement by the Bank of Paragraphs 1, 2, 3, and 4 of this Agreement.\n7.\nThis Agreement does not create any right to employment or employment contract between the Employee and the\nBank in which the Employer/Employee relationship is employment at will.\n8.\nThe Employee understands he/she may not assign this Agreement because it is the intent that he/she personally\nprovide services hereunder. The Bank may, however, unilaterally assign this Agreement to a related entity, a\nsuccessor, or an assign.\n2\n9.\nNotwithstanding the assignability language in Paragraph 8, the parties agree that, in the event of a Change in\nControl of the Bank or NorthWest Indiana Bancorp (“NorthWest”), the Employee will no longer be bound by the\nrestrictions in Paragraphs 1 and 4. For purposes of this Agreement, a Change in Control will occur if, within any\n12 month period, (i) any person, or more than one person acting as a group within the meaning of Section 13(d) of\nthe Securities Exchange Act of 1934, becomes the beneficial owner, directly or indirectly, of more than 50% of the\nissued and outstanding common stock of (or more than 50% of the total voting power of the stock of) the Bank (or\nNorthWest); (ii) any person, or more than one person acting as a group within the meaning of Section 13(d) of the\nSecurities Exchange Act of 1934, acquires all or substantially all of the assets of the Bank (or NorthWest); or (iii)\nthe majority of the members of the Bank’s (or NorthWest’s) board of directors is replaced by directors whose\nappointment or election was not endorsed by a majority of the members of NorthWest before the date of the\nappointment or election.\n10.\nThe laws of the State of Indiana shall govern this Agreement. The Bank is based in Indiana, and the Employee\nunderstands and acknowledges its desire and need to defend any litigation against it in Indiana. Accordingly, the\nparties agree that any claim of any type brought by the Employee against the Bank or any of its employees or\nagents must be maintained only in a court sitting in Lake County, Indiana or, if a federal court, the Northern\nDistrict of Indiana, Hammond Division. The Employee further understands and acknowledges that in the event the\nBank initiates litigation against him/her, the Bank may need to prosecute such litigation in the Employee’s forum\nstate, in the State of Indiana or in such other states where the Employee is subject to personal jurisdiction.\nAccordingly, the parties agree that the Bank can pursue any claim against the Employee in any forum in which\nhe/she is subject to personal jurisdiction. The Employee specifically consents to personal jurisdiction in the State\nof Indiana, as well as any state in which a customer assigned to the Employee resides or is located.\n11.\nThe parties expressly agree that the terms of this Agreement are reasonable, enforceable, and necessary to\nprotect the Bank’ interests and will not affect Employee’s ability to earn a livelihood. In the unlikely event,\nhowever, that a court determines that any of the terms, provisions, or covenants contained in this Agreement are\nunreasonable, the court shall limit the application of such term, provision, or covenant, or modify any such term,\nprovision, or covenant and proceed to enforce the Agreement as so limited or modified. Consequently, if any\nprovision of this Agreement is determined to be unenforceable, the remaining provisions shall remain in full force\nand effect. The parties further agree that if any provision is susceptible of two or more constructions, one of which\nwould render the provision unenforceable, then the provision shall be construed to have the meaning that renders\nit enforceable.\n12.\nEmployee acknowledges and agrees that, after his/her separation of employment, Employee will possess\nPeoples’ trade secrets and Confidential Information which he/she would inevitably use if he/she were to engage in\nconduct prohibited above, that such use would be unfair, and extremely detrimental, to the Bank and, in view of\nthe benefits provided to Employee in this Agreement, that such conduct on Employee’s part would be inequitable.\nAccordingly, Employee separately and severally agrees for the benefit of Peoples to keep each of the covenants\ndescribed above throughout the one (1) year restricted period.\n13.\nEmployee acknowledges and agrees that, in executing this Agreement, he/she has not relied on any\nrepresentations or statements not set forth herein made by the Bank with regard to the subject matter, basis or\neffect of this Agreement, or otherwise. Employee understands that this Agreement cannot be amended, modified,\nor waived, except by a writing signed by Employee and the Chief Executive Officer of the Bank.\n3\n14.\nEmployee acknowledges that he/she has a duty to contact the Bank if Employee has any questions regarding\nwhether or not a particular employment or conduct would be restricted by this Agreement.\n15.\nEmployee acknowledges that he/she has a duty to immediately inform the Bank in writing of any employment or\nsimilar relationship he/she enters into within one (1) year of his/her termination of employment (for whatever\nreason) with the Bank.\n16.\nEmployee acknowledges that the restricted period of time set forth herein (e.g., one (1) year) is a material term of\nthis Agreement and that the Bank is entitled to Employee’s compliance with these terms during that full period of\ntime. Therefore, Employee agrees that the restricted period of time is tolled during any period of non-compliance.\nIf the Bank must seek injunctive relief or judicial intervention, the restricted time period set forth herein does not\ncommence until Employee is judged by a court of competent jurisdiction to be in full compliance with this\nAgreement.\n17.\nThis Agreement constitutes the entire agreement of the parties and supersedes all prior agreements addressing\nthe terms, conditions and issues contained herein. Notwithstanding the foregoing, nothing in this Agreement is\nintended to or shall limit, supersede, nullify, or affect any other duty or responsibility Employee may have or owe\nthe Bank by virtue of any separate agreement or otherwise.\n18.\nEmployee acknowledges that any failure by the Bank to insist upon strict compliance with any terms or provisions\nof this Agreement shall not be deemed a waiver of any terms, provisions, or rights.\n19.\nEmployee acknowledges that his/her employment and/or continued employment with the Bank, the compensation\npaid to him/her by the Bank, and the Confidential Information and trade secrets provided to Employee by Peoples\nare sufficient consideration for the covenants contained herein.\n20.\nEmployee certifies that he/she has carefully read the entire content of this Non-Solicitation and Confidentiality\nAgreement, that Employee was afforded sufficient opportunity to obtain independent legal advice prior to\nexecuting this Agreement, and that Employee fully understands all of its terms, conditions and restrictions. In\naddition, Employee acknowledges that any legal action taken by Peoples to enforce this Agreement shall not be\ndeemed an attempt to prevent Employee from obtaining other employment.\nPEOPLES BANK SB\nBy:\nEmployee Signature\nBenjamin Bochnowski\nPresident & Chief Executive Officer\nEmployee Printed Name\n[Signature Page to Non-Solicitation and Confidentiality Agreement]\n4	Exhibit 10.2\nNon-Solicitation and Confidentiality Agreement\nThis Non-Solicitation and Confidentiality Agreement (“Agreement”) is made on this ___\n_______________ (the “Employee”) and Peoples Bank SB (the “P eoples” or “Bank”). In consideration of Employee's\nemploymentand continued employment, the payment of remuneration and benefits by the Bank and the Bank's promise\nto provide Employee with access to customers, Confidential Information and trade secrets, which the parties recognize to\nbe good, valuable and sufficient consideration for the Agreement, Employee and the Bank agree as follows:\nday of_ , between\nEmployee agrees that during the term of his/her employment, and for a period of one yearfrom the date of his/her\n1. termination of employment for any reason, E mployee will not, in a competitive capacity, on behalf of any person or\nentity other than the Bank, directly or indirectly:\nsolicit, divert (or attempt to solicit or divert) or accept competitive business from any customer of the Bank\n(a) with whom Employee has had contact (either directly or indirectly), provided services to, or over which\nEmployee has had responsibility atany time in the one (1) year preceding his/her separation;\nsolicit, divert (or attempt to solicit or divert) or accept competitive business from any customer of Bank about\nwhom Employee has obtained Confidential Information; and\ndirectly or indirectly assist in the research and development of products or services where such research and\n(c) development would be aided by any Confidential Information that Employee has learned in the course of his/her\nrelationship with the Bank.\nFor purposes of this Agreement, the term “competitive capacity” shall mean (i) performing tasks or duties\nsimilarto those Employee performed in his/her Iastyear ofemploymentatthe Bank fora competitor of\nthe Bank; (ii) managing/supervising those who, for a competitor of the Bank, perform tasks or duties\nsimilar to those which E mployee performed in the last year of his/her employment at Bank; or (iii)\nperforming, on behalf of a competitor of the Bank, tasks or duties in which Employee utilizes any\nConfidential Information that he/she learned in the course of his/her relationship with the Bank.\nEmployee acknowledges and agrees thatas a result of his/her employmentwith the Bank, he/she will have\naccess to and be involved in the developmentand/or utilization of the Bank's (and its parent's, affiliates' and/or\nsubsidiaries') confidential and proprietary business information (“Confidential Information”). Accordingly,\nE mployee agrees that he/she shall not, either during his/her employment by the Bank or at any time thereafter,\ndisclose to anyone (exceptas authorized by the Bank in the furtherance of its business) or use in competition with\nPeoples, any of the Bank's (or its parent's, affiliate's and/or subsidiaries') Confidential Information. The Bank's'\n(and its parent's, affiliates' and/or subsidiaries') Confidential Information includes, without limitation, all materials\nand information (whether written or not) about Peoples' contracts, business plans, business partners, customers\nand prospective customers (including their product requirements and payment terms), vendors, suppliers, current\nand prospective products and services, sales, marketing, pricing, costs, budgets, financing, promotions,\ntechniques, processes and forms, purchasing, finances, accounting, research, improvements, discoveries,\ninventions, experimental works-in-progress, formulae, software, licenses, business methods and tactics, quality\ncontrol parameters and techniques, internal communications, production, output, profit margins, and/or any other\naspect of the Bank's business or operations (including, but not limited to, information concerning, relating to, or\narising outof relationships with suppliers, vendors, customers, lenders, or other business affiliates) which are not\ngenerally known by the public at large and/or which provide the Bank with a competitive advantage.\nE mployee recognizes that all information, however stored or memorialized, and all identification cards, keys, access codes,\nmarketing materials, samples, notes, customer, supplier and other lists, documents, forms, computers, records, and other\nequipment or property which the Bank provides to or makes available to him/her are the sole property of the Bank. Employee\nshall use such property solely for the benefit of Peoples and for no other purpose. Upon the cessation of his/her employment\nwith the Bank and without prior request, Employee shall (i) refrain from taking any such property from the Bank’ s premises;\n(ii) immediately return to the Bank any such property that may be in his/her possession or control (including any and all\ncopies thereof); (iii) permanently delete any such property that may remain on any personal storage device that remains in\nEmployee’ s possession after his/her employment ends; and (iv) certify in writing that Employee has complied with this\nparagraph.\nFor a period of one year after his/hertermination, the Employee agrees that he/she will not, directly or indirectly,\nfor himself/herself orfor any third party, solicit, induce, recruit, or cause another person in the employ ofthe Bank\n(i) who reported directly or indirectly to the Employee, (ii) whose confidential employment information was\naccessible by the Employee, or (iii) whose customer relationships were known to the Employee, to terminate\nhis/her employment for the purpose of joining, associating, or becoming employed with another person, business\norganization or other entity that is in competition with any product or service provided by the Bank, or any\nbusiness or activity of the Bank.\nE mployee agrees that it would be difficult to measure damages to the Bank from any breach of covenants contained in this\nAgreement, but that such damages from any breach would be great, incalculable, and irremediable, and that damages would\nbe an inadequate remedy. A ccordingly, Employee agrees to waive any claim that Peoples has an adequate remedy at law and\nfurther agrees that the Bank may have specific performance of the terms of this Agreement in any court having jurisdiction.\nE mployee further agrees that if he/she violates this Agreement, the E mployee hereby agrees to indemnify the\nBank againstany and all damages, costs, and expenses, including reasonable attorneys' fees, incurred by the\nBank in enforcing the terms of this Agreement, or prosecuting any action or claim arising by reason of the\nE mployee's violation of this Agreement.\nThe existence of any claim or cause of action by Employee againstthe Bank shall not constitute a defenseto the\nenforcement by the Bank of Paragraphs 1, 2, 3, and 4 of this Agreement.\nThis Agreement does not create any right to employment or employment contract between the E mployee and the\nBank in which the Employer/E mployee relationship is employment at will.\nThe Employee understands he/she may notassign this Agreement because it is the intentthat he/she personally\nprovide services hereunder. The Bank may, however, unilaterally assign this Agreement to a related entity, a\nsuccessor, or an assign.\n10. 11. 12. 13. Notwithstanding the assignability language in Paragraph 8, the parties agree that, in the event ofa Change in\nControl of the Bank or NorthWest Indiana Bancorp (“NorthWest”), the Employee will no longer be bound by the\nrestrictions in Paragraphs 1 and 4. For purposes of this Agreement, a Change in Control will occur if, within any\n12 month period, (i) any person, or more than one person acting as a group within the meaning ofSection 13(d) of\nthe Securities Exchange Actof 1934, becomes the beneficial owner, directly or indirectly, of more than 50% of the\nissued and outstanding common stock of (or more than 50% ofthe total voting power ofthe stock of) the Bank (or\nNorthWest); (ii) any person, or more than one person acting as a group within the meaning of Section 13(d) of the\nSecurities Exchange Act of 1934, acquires all or substantially all of the assets ofthe Bank (or NorthWest); or (iii)\nthe majority of the members of the Bank's (or NorthWest's) board of directors is replaced by directors whose\nappointment or election was not endorsed by a majority of the members of NorthWest before the date of the\nappointment or election.\nThe laws of the State of Indiana shall govern this Agreement. The Bank is based in Indiana, and the Employee\nunderstands and acknowledges its desire and need to defend any litigation against it in Indiana. Accordingly, the\nparties agree thatany claim ofany type brought by the Employee againstthe Bank or any of its employees or\nagents must be maintained only in a court sitting in Lake County, Indiana or, ifa federal court, the Northern\nDistrict of Indiana, Hammond Division. The Employee further understands and acknowledges that in the event the\nBank initiates litigation against him/her, the Bank may need to prosecute such litigation in the Employee's forum\nstate, in the State of Indiana or in such other states where the Employee is subjectto personal jurisdiction.\nAccordingly, the parties agree that the Bank can pursue any claim against the Employee in any forum in which\nhe/she is subject to personal jurisdiction. The Employee specifically consents to personal jurisdiction in the State\nof Indiana, as well as any state in which a customer assigned to the Employee resides or is located.\nThe parties expressly agree thatthe terms of this Agreement are reasonable, enforceable, and necessary to\nprotect the Bank' interests and will not affect Employee's ability to earn a livelihood. In the unlikely event,\nhowever, that a court determines that any of the terms, provisions, or covenants contained in this Agreement are\nunreasonable, the court shall limit the application of such term, provision, or covenant, or modify any such term,\nprovision, or covenant and proceed to enforce the Agreement as so limited or modified. Consequently, if any\nprovision of this Agreement is determined to be unenforceable, the remaining provisions shall remain in full force\nand effect. The parties further agree that if any provision is susceptible of two or more constructions, one of which\nwould render the provision unenforceable, then the provision shall be construed to have the meaning that renders\nit enforceable.\nEmployee acknowledges and agrees that, after his/her separation of employment, Employee will possess\nPeoples' trade secrets and Confidential Information which he/she would inevitably use if he/she were to engage in\nconduct prohibited above, that such use would be unfair, and extremely detrimental, to the Bank and, in view of\nthe benefits provided to Employee in this Agreement, thatsuch conducton Employee's part would be inequitable.\nAccordingly, Employee separately and severally agrees for the benefit of Peoples to keep each ofthe covenants\ndescribed above throughoutthe one (1) year restricted period.\nEmployee acknowledges and agrees that, in executing this Agreement, he/she has not relied on any\nrepresentations or statements notset forth herein made by the Bank with regard to the subject matter, basis or\neffect of this Agreement, or otherwise. Employee understands thatthis Agreement cannot be amended, modified,\nor waived, except by a writing signed by Employee and the Chief Executive Officer of the Bank.\n14\n15. 16. 17. 18. 19. 20. Employee acknowledges that he/she has a duty to contactthe Bank if Employee has any questions regarding\n' whether or not a particular employment or conduct would be restricted by this Agreement. Employee acknowledges that he/she has a duty to immediately inform the Bank in writing of any employment or\nsimilar relationship he/she enters into within one (1) year of his/hertermination of employment (for whatever\nreason) with the Bank.\nEmployee acknowledges thatthe restricted period of time set forth herein (e.g., one (1) year) is a material term of\nthis Agreement and that the Bank is entitled to Employee's compliance with these terms during thatfull period of\ntime. Therefore, Employee agrees thatthe restricted period of time is tolled during any period of non-compliance.\nlfthe Bank must seek injunctive relief orjudicial intervention, the restricted time period set forth herein does not\ncommence until Employee is judged by a court of competentjurisdiction to be in full compliance with this\nAgreement.\nThis Agreement constitutes the entire agreement of the parties and supersedes all prior agreements addressing\nthe terms, conditions and issues contained herein. Notwithstanding the foregoing, nothing in this Agreement is\nintended to or shall limit, supersede, nullify, or affect any other duty or responsibility E mployee may have or owe\nthe Bank by virtue of any separate agreement or othenNise.\nEmployee acknowledges that any failure by the Bank to insist upon strict compliance with any terms or provisions\nof this Agreement shall not be deemed a waiver of any terms, provisions, or rights.\nEmployee acknowledges that his/her employment and/or continued employment with the Bank, the compensation\npaid to him/her by the Bank, and the Confidential Information and trade secrets provided to Employee by Peoples\nare sufficientconsideration forthe covenants contained herein.\nEmployee certifies that he/she has carefully read the entire content of this Non-Solicitation and Confidentiality\nAgreement, that Employee was afforded sufficientopportunity to obtain independent legal advice priorto\nexecuting this Agreement, and that Employee fully understands all of its terms, conditions and restrictions. In\naddition, Employee acknowledges that any legal action taken by Peoples to enforce this Agreement shall not be\ndeemed an attempt to prevent Employee from obtaining other employment.\nPEOPLES BANK SB\nBy:\nEmployee Signature Benjamin Bochnowski President & Chief Executive Officer\nE mployee P nnted Name [Signature Page to Non-Solicitation and Confidentiality Agreement]	E xhibit 10.2\nNon-Solicitation and Confidentiality Agreement\nThis Non-s olicitation and onfidentiality Agreement ("Agreement") is made on this\nday of\nbetween\n(the "Employee") and eoples Bank SB (the "Peoples" or "Bank"). In consideration of Employee's\nemployment and continued employment, the payment of remuneration and benefits by the Bank and the Bank's promise\nto provide mployee with access to customers, Confidential Information and trade secrets, which the parties recognize to\nbe\ngood, valuable and sufficient consideration for the Agreement E mployee and the Bank agree as follows:\nE mployee agrees that during the term of his/her employment, and for a period of one year from the date of his/her\n1. termination of employment for any reason, mployee will not, in a competitive capacity, on behalf of any person or\nentity other than the Bank, directly or indirectly:\nsolicit, divert (or attempt to solicit or divert) or accept competitive business from any customer of the Bank\n(a) with whom Employee has had contact (either directly or indirectly), provided services to, or over which\nEmployee has had responsibility at any time in the one (1) year preceding his/her separation;\n(b)\nsolicit, divert (or attempt to solicit or divert) or accept competitive business from any customer of Bank about\nwhom E mployee has obtained Confidentia Information and\ndirectly or indirectly assist in the research and development of products or services where such research and\n(c)\ndevelopment would be aided by any Confidential Information that Employee has learned in the course of his/her\nrelationship with the Bank.\nFor purposes of this Agreement the term "competitive capacity" shall mean (i) performing tasks or duties\nsimilar to those Employee performed in his/her last year of employment at the Bank for a competitor of\nthe Bank; (ii) managing/supervising those who, for a competitor of the Bank, perform tasks or duties\nsimilar to those which Employee performed in the last year of his/her employment at Bank; or (iii)\nperforming, on behalf of a competitor of the Bank, tasks or duties in which Employee utilizes any\nConfidential Information that he/she learned in the course of his/her relationship with the Bank.\nE mployee acknowledges and agrees that as a result of his/her employment with the Bank, he/she will have\naccess to and be involved in the development and/or utilization of the Bank's (and its parent's, affiliates' and/or\nsubsidiaries') confidential and proprietary business information "Confidential Information"). Accordingly,\nEmployee agrees that he/she shall not, either during his/her employment by the Bank or at any time thereafter,\ndisclose to anyone (except as authorized by the Bank in the furtherance of its business) or use in competition with\nPeoples, any of the Bank's (or its parent's, affiliate's and/or subsidiaries') Confidential Information. The Bank's'\n(and its parent's, affiliates' and/or subsidiaries') Confidentia Information includes, without limitation, all materials\n2.\nand information (whether written or not) about eoples' contracts, business plans, business partners, customers\nand prospective customers (including their product requirements and payment terms), vendors, suppliers, current\nand prospective products and services, sales, marketing, pricing, costs, budgets, financing, promotions,\ntechniques, processes and forms, purchasing, finances, accounting, research, improvements, discoveries,\ninventions, experimental works-in-progress, formulae, software, licenses, business methods and tactics, quality\ncontrol parameters and techniques internal communications, production, output profit margins, and/or any other\naspect of the Bank's business or operations (including, but not limited to, information concerning, relating to, or\narising out of relationships with suppliers vendors, customers, lenders, or other business affiliates) which are not\ngenerally known by the public at large and/or which provide the Bank with a competitive advantage.\nE mployee recognizes that all information, however stored or memorialized, and all identification cards, keys, access codes,\nmarketing materials, samples, notes, customer, supplier and other lists, documents, forms, computers, records, and other\nequipment or property which the Bank provides to or makes available to him/her are the sole property of the Bank. Employee\nshall use such property solely for the benefit of Peoples and for no other purpose. Upon the cessation of his/her employment\n3. with the Bank and without prior request, Employee shall (i) refrain from taking any such property from the Bank's premises;\n(ii) immediately return to the Bank any such property that may be in his/her possession or control (including any and all\ncopies thereof); (iii) permanently delete any such property that may remain on any personal storage device that remains in\nEmployee's possession after his/her employment ends; and (iv) certify in writing that Employee has complied with this\nparagraph.\nF or a period of one year after his/her termination, the E mployee agrees that he/she will not, directly or indirectly,\nfor himself/herself or for any third party, solicit, induce, recruit, or cause another person in the employ of the Bank\n(i) who reported directly or indirectly to the Employee, (ii) whose confidential employment information was\n4. accessible by the E mployee, or (iii) whose customer relationships were known to the mployee, to terminate\nhis/her employment for the purpose of joining, associating, or becoming employed with another person, business\norganization or other entity that is in competition with any product or service provided by the Bank, or any\nbusiness or activity of the Bank.\nE mployee agrees that it would be difficult to measure damages to the Bank from any breach of covenants contained in this\nA greement, but that such damages from any breach would be great, incalculable, and irremediable, and that damages would\nbe an inadequate remedy. A ccordingly, Employee agrees to waive any claim that Peoples has an adequate remedy at law and\n5.\nfurther agrees that the Bank may have specific performance of the terms of this greement in any court having jurisdiction.\nmployee further agrees that if he/she violates this Agreement the mployee hereby agrees to indemnify the\nBank against any and all damages, costs, and expenses, including reasonable attorneys' fees, incurred by the\nBank in enforcing the terms of this Agreement, or prosecuting any action or claim arising by reason of the\nE mployee's violation of this Agreement.\n6.\nThe existence of any claim or cause of action by E mployee against the 3ank shall not constitute a defense to the\nenforcement by the Bank of P aragraphs 1, 2, 3, and 4 of this Agreement.\n7.\nThis Agreement does not create any right to employment or employment contract between the E mployee and the\nBank in which the Employer/E mployee relationship is employment at will.\nThe Employee understands he/she may not assign this Agreement because it is the intent that he/she personally\n8. provide services hereunder The Bank may, however, unilaterally assign this Agreement to a related entity, a\nsuccessor, or an assign.\n2\nNotwithstanding the assignability language in aragraph 8, the parties agree that, in the event of a Change in\nControl of the Bank or NorthWest Indiana Bancorp ("NorthWest"), the mployee wil no longer be bound by the\nrestrictions in Paragraphs 1 and 4. F or purposes of this Agreement, a Change in Control will occur if, within any\n12 month period, (i) any person, or more than one person acting as a group within the meaning of Section 13(d) of\nthe Securities E xchange Act of 1934, becomes the beneficial owner, directly or indirectly, of more than 50% of the\n9.\nissued and outstanding common stock of (or more than 50% of the total voting power of the stock of) the Bank (or\nNorthWest); (ii) any person, or more than one person acting as a group within the meaning of Section 13(d) of the\nSecurities Exchange Act of 1934, acquires all or substantially all of the assets of the Bank (or NorthWest); or (iii)\nthe majority of the members of the Bank's (or NorthWest's) board of directors is replaced by directors whose\nappointment or election was not endorsed by a majority of the members of NorthWest before the date of the\nappointment or election.\nThe laws of the State of Indiana shall govern this Agreement. The Bank is based in Indiana, and the Employee\nunderstands and acknowledges its desire and need to defend any litigation against it in Indiana. Accordingly, the\nparties agree that any claim of any type brought by the Employee against the Bank or any of its employees or\nagents must be maintained only in a court sitting in Lake County, Indiana or, if a federal court, the Northern\n10.\nDistrict of Indiana, Hammond Division. The E mployee further understands and acknowledges that in the event the\nBank initiates litigation against him/her, the Bank may need to prosecute such litigation in the Employee's forum\nstate, in the State of Indiana or in such other states where the Employee is subject to personal jurisdiction.\nAccordingly, the parties agree that the Bank can pursue any claim against the Employee in any forum in which\nhe/she is subject to personal jurisdiction. The Employee specifically consents to persona jurisdiction in the State\nof Indiana, as well as any state in which a customer assigned to the mployee resides or is located.\nThe parties expressly agree that the terms of this Agreement are reasonable, enforceable, and necessary to\nprotect the Bank' interests and will not affect mployee's ability to earn a livelihood. In the unlikely event,\nhowever, that a court determines that any of the terms, provisions, or covenants contained in this Agreement are\nunreasonable, the court shall limit the application of such term, provision, or covenant, or modify any such term,\n11. provision, or covenant and proceed to enforce the Agreement as so limited or modified. Consequently, if any\nprovision of this Agreement is determined to be unenforceable, the remaining provisions shall remain in full force\nand effect. The parties further agree that if any provision is susceptible of two or more constructions, one of which\nwould render the provision unenforceable, then the provision shall be construed to have the meaning that renders\nit enforceable.\nmployee acknowledges and agrees that, after his/her separation of employment mployee will possess\nPeoples' trade secrets and Confidential Information which he/she would inevitably use if he/she were to engage in\n12.\nconduct prohibited above, that such use would be unfair, and extremely detrimental, to the Bank and, in view of\nthe benefits provided to Employee in this Agreement, that such conduct on Employee's part would be inequitable.\nAccordingly, Employee separately and severally agrees for the benefit of eoples to keep each of the covenants\ndescribed above throughout the one (1) year restricted period.\nmployee acknowledges and agrees that, in executing this Agreement he/she has not relied on any\n13.\nrepresentations or statements not set forth herein made by the Bank with regard to the subject matter, basis or\neffect of this Agreement, or otherwise mployee understands that this Agreement cannot be amended, modified,\nor waived, except by a writing signed by mployee and the Chief xecutive Officer of the Bank.\n3\n14.\nmployee acknowledges that he/she has a duty to contact the Bank if E mployee has any questions regarding\nwhether or not a particular employment or conduct would be restricted by this Agreement.\nmployee acknowledges that he/she has a duty to immediately inform the Bank in writing of any employment or\n15. similar relationship he/she enters into within one (1) year of his/her termination of employment (for whatever\nreason) with the Bank.\nE mployee acknowledges that the restricted period of time set forth herein (e.g., one (1) year) is a material term of\nthis Agreement and that the Bank is entitled to Employee's compliance with these terms during that full period of\n16.\ntime. Therefore, E mployee agrees that the restricted period of time is tolled during any period of non-compliance.\nIf the Bank must seek injunctive relief or judicial intervention, the restricted time period set forth herein does not\ncommence until Employee is judged by a court of competent jurisdiction to be in full compliance with this\nAgreement.\nThis Agreement constitutes the entire agreement of the parties and supersedes all prior agreements addressing\nthe terms, conditions and issues contained herein. Notwithstanding the foregoing, nothing in this Agreement is\n17.\nintended to or shall limit, supersede, nullify, or affect any other duty or responsibility :mployee may have or owe\nthe Bank by virtue of any separate agreement or otherwise.\n18.\nmployee acknowledges that any failure by the Bank to insist upon strict compliance with any terms or provisions\nof this Agreement shall not be deemed a waiver of any terms, provisions, or rights.\nE mployee acknowledges that his/her employment and/or continued employment with the Bank, the compensation\n19. paid to him/her by the Bank, and the Confidential Information and trade secrets provided to E mployee by Peoples\nare sufficient consideration for the covenants contained herein.\nEmployee certifies that he/she has carefully read the entire content of this Non-S olicitation and Confidentiality\nAgreement, that E mployee was afforded sufficient opportunity to obtain independent legal advice prior to\n20. executing this Agreement, and that Employee fully understands all of its terms, conditions and restrictions. In\naddition, E mployee acknowledges that any legal action taken by Peoples to enforce this Agreement shall not be\ndeemed an attempt to prevent mployee from obtaining other employment.\nPEOPLES BANK SB\nBy:\nEmployee Signature\nBenjamin Bochnowski\nPresident & Chief Executive Officer\nEmployee Printed Name\n[Signature Page to Non-Solicitation and Confidentiality Agreement]\n4	Exhibit 10.2\nNon-Solicitation and Confidentiality Agreement\nThis Non-Solicitation and Confidentiality Agreement (“Agreement”) is made on this ___ day of ____, between _______\n_____ ______ ____\n(the “Employee”) and Peoples Bank SB (the “Peoples” or “Bank”). In consideration of Employee’s\nemployment and continued employment, the payment of remuneration and benefits by the Bank and the Bank’s promise\nto provide Employee with access to customers, Confidential Information and trade secrets, which the parties recognize to\nbe good, valuable and sufficient consideration for the Agreement, Employee and the Bank agree as follows:\n1.\nEmployee agrees that during the term of his/her employment, and for a period of one year from the date of his/her\ntermination of employment for any reason, Employee will not, in a competitive capacity, on behalf of any person or\nentity other than the Bank, directly or indirectly:\n(a)\nsolicit, divert (or attempt to solicit or divert) or accept competitive business from any customer of the Bank\nwith whom Employee has had contact (either directly or indirectly), provided services to, or over which\nEmployee has had responsibility at any time in the one (1) year preceding his/her separation;\n(b)\nsolicit, divert (or attempt to solicit or divert) or accept competitive business from any customer of Bank about\nwhom Employee has obtained Confidential Information; and\n(c)\ndirectly or indirectly assist in the research and development of products or services where such research and\ndevelopment would be aided by any Confidential Information that Employee has learned in the course of his/her\nrelationship with the Bank.\nFor purposes of this Agreement, the term “competitive capacity” shall mean (i) performing tasks or duties\nsimilar to those Employee performed in his/her last year of employment at the Bank for a competitor of\nthe Bank; (ii) managing/supervising those who, for a competitor of the Bank, perform tasks or duties\nsimilar to those which Employee performed in the last year of his/her employment at Bank; or (iii)\nperforming, on behalf of a competitor of the Bank, tasks or duties in which Employee utilizes any\nConfidential Information that he/she learned in the course of his/her relationship with the Bank.\n2.\nEmployee acknowledges and agrees that as a result of his/her employment with the Bank, he/she will have\naccess to and be involved in the development and/or utilization of the Bank’s (and its parent’s, affiliates’ and/or\nsubsidiaries’) confidential and proprietary business information (“Confidential Information”). Accordingly,\nEmployee agrees that he/she shall not, either during his/her employment by the Bank or at any time thereafter,\ndisclose to anyone (except as authorized by the Bank in the furtherance of its business) or use in competition with\nPeoples, any of the Bank’s (or its parent’s, affiliate’s and/or subsidiaries’) Confidential Information. The Bank’s’\n(and its parent’s, affiliates’ and/or subsidiaries’) Confidential Information includes, without limitation, all materials\nand information (whether written or not) about Peoples’ contracts, business plans, business partners, customers\nand prospective customers (including their product requirements and payment terms), vendors, suppliers, current\nand prospective products and services, sales, marketing, pricing, costs, budgets, financing, promotions,\ntechniques, processes and forms, purchasing, finances, accounting, research, improvements, discoveries,\ninventions, experimental works-in-progress, formulae, software, licenses, business methods and tactics, quality\ncontrol parameters and techniques, internal communications, production, output, profit margins, and/or any other\naspect of the Bank’s business or operations (including, but not limited to, information concerning, relating to, or\narising out of relationships with suppliers, vendors, customers, lenders, or other business affiliates) which are not\ngenerally known by the public at large and/or which provide the Bank with a competitive advantage.\n3.\nEmployee recognizes that all information, however stored or memorialized, and all identification cards, keys, access codes,\nmarketing materials, samples, notes, customer, supplier and other lists, documents, forms, computers, records, and other\nequipment or property which the Bank provides to or makes available to him/her are the sole property of the Bank. Employee\nshall use such property solely for the benefit of Peoples and for no other purpose. Upon the cessation of his/her employment\nwith the Bank and without prior request, Employee shall (i) refrain from taking any such property from the Bank’s premises;\n(ii) immediately return to the Bank any such property that may be in his/her possession or control (including any and all\ncopies thereof); (iii) permanently delete any such property that may remain on any personal storage device that remains in\nEmployee’s possession after his/her employment ends; and (iv) certify in writing that Employee has complied with this\nparagraph.\n4.\nFor a period of one year after his/her termination, the Employee agrees that he/she will not, directly or indirectly,\nfor himself/herself or for any third party, solicit, induce, recruit, or cause another person in the employ of the Bank\n(i) who reported directly or indirectly to the Employee, (ii) whose confidential employment information was\naccessible by the Employee, or (iii) whose customer relationships were known to the Employee, to terminate\nhis/her employment for the purpose of joining, associating, or becoming employed with another person, business\norganization or other entity that is in competition with any product or service provided by the Bank, or any\nbusiness or activity of the Bank.\n5.\nEmployee agrees that it would be difficult to measure damages to the Bank from any breach of covenants contained in this\nAgreement, but that such damages from any breach would be great, incalculable, and irremediable, and that damages would\nbe an inadequate remedy. Accordingly, Employee agrees to waive any claim that Peoples has an adequate remedy at law and\nfurther agrees that the Bank may have specific performance of the terms of this Agreement in any court having jurisdiction.\nEmployee further agrees that if he/she violates this Agreement, the Employee hereby agrees to indemnify the\nBank against any and all damages, costs, and expenses, including reasonable attorneys’ fees, incurred by the\nBank in enforcing the terms of this Agreement, or prosecuting any action or claim arising by reason of the\nEmployee’s violation of this Agreement.\n6.\nThe existence of any claim or cause of action by Employee against the Bank shall not constitute a defense to the\nenforcement by the Bank of Paragraphs 1, 2, 3, and 4 of this Agreement.\n7.\nThis Agreement does not create any right to employment or employment contract between the Employee and the\nBank in which the Employer/Employee relationship is employment at will.\n8.\nThe Employee understands he/she may not assign this Agreement because it is the intent that he/she personally\nprovide services hereunder. The Bank may, however, unilaterally assign this Agreement to a related entity, a\nsuccessor, or an assign.\n2\n9.\nNotwithstanding the assignability language in Paragraph 8, the parties agree that, in the event of a Change in\nControl of the Bank or NorthWest Indiana Bancorp (“NorthWest”), the Employee will no longer be bound by the\nrestrictions in Paragraphs 1 and 4. For purposes of this Agreement, a Change in Control will occur if, within any\n12 month period, (i) any person, or more than one person acting as a group within the meaning of Section 13(d) of\nthe Securities Exchange Act of 1934, becomes the beneficial owner, directly or indirectly, of more than 50% of the\nissued and outstanding common stock of (or more than 50% of the total voting power of the stock of) the Bank (or\nNorthWest); (ii) any person, or more than one person acting as a group within the meaning of Section 13(d) of the\nSecurities Exchange Act of 1934, acquires all or substantially all of the assets of the Bank (or NorthWest); or (iii)\nthe majority of the members of the Bank’s (or NorthWest’s) board of directors is replaced by directors whose\nappointment or election was not endorsed by a majority of the members of NorthWest before the date of the\nappointment or election.\n10.\nThe laws of the State of Indiana shall govern this Agreement. The Bank is based in Indiana, and the Employee\nunderstands and acknowledges its desire and need to defend any litigation against it in Indiana. Accordingly, the\nparties agree that any claim of any type brought by the Employee against the Bank or any of its employees or\nagents must be maintained only in a court sitting in Lake County, Indiana or, if a federal court, the Northern\nDistrict of Indiana, Hammond Division. The Employee further understands and acknowledges that in the event the\nBank initiates litigation against him/her, the Bank may need to prosecute such litigation in the Employee’s forum\nstate, in the State of Indiana or in such other states where the Employee is subject to personal jurisdiction.\nAccordingly, the parties agree that the Bank can pursue any claim against the Employee in any forum in which\nhe/she is subject to personal jurisdiction. The Employee specifically consents to personal jurisdiction in the State\nof Indiana, as well as any state in which a customer assigned to the Employee resides or is located.\n11.\nThe parties expressly agree that the terms of this Agreement are reasonable, enforceable, and necessary to\nprotect the Bank’ interests and will not affect Employee’s ability to earn a livelihood. In the unlikely event,\nhowever, that a court determines that any of the terms, provisions, or covenants contained in this Agreement are\nunreasonable, the court shall limit the application of such term, provision, or covenant, or modify any such term,\nprovision, or covenant and proceed to enforce the Agreement as so limited or modified. Consequently, if any\nprovision of this Agreement is determined to be unenforceable, the remaining provisions shall remain in full force\nand effect. The parties further agree that if any provision is susceptible of two or more constructions, one of which\nwould render the provision unenforceable, then the provision shall be construed to have the meaning that renders\nit enforceable.\n12.\nEmployee acknowledges and agrees that, after his/her separation of employment, Employee will possess\nPeoples’ trade secrets and Confidential Information which he/she would inevitably use if he/she were to engage in\nconduct prohibited above, that such use would be unfair, and extremely detrimental, to the Bank and, in view of\nthe benefits provided to Employee in this Agreement, that such conduct on Employee’s part would be inequitable.\nAccordingly, Employee separately and severally agrees for the benefit of Peoples to keep each of the covenants\ndescribed above throughout the one (1) year restricted period.\n13.\nEmployee acknowledges and agrees that, in executing this Agreement, he/she has not relied on any\nrepresentations or statements not set forth herein made by the Bank with regard to the subject matter, basis or\neffect of this Agreement, or otherwise. Employee understands that this Agreement cannot be amended, modified,\nor waived, except by a writing signed by Employee and the Chief Executive Officer of the Bank.\n3\n14.\nEmployee acknowledges that he/she has a duty to contact the Bank if Employee has any questions regarding\nwhether or not a particular employment or conduct would be restricted by this Agreement.\n15.\nEmployee acknowledges that he/she has a duty to immediately inform the Bank in writing of any employment or\nsimilar relationship he/she enters into within one (1) year of his/her termination of employment (for whatever\nreason) with the Bank.\n16.\nEmployee acknowledges that the restricted period of time set forth herein (e.g., one (1) year) is a material term of\nthis Agreement and that the Bank is entitled to Employee’s compliance with these terms during that full period of\ntime. Therefore, Employee agrees that the restricted period of time is tolled during any period of non-compliance.\nIf the Bank must seek injunctive relief or judicial intervention, the restricted time period set forth herein does not\ncommence until Employee is judged by a court of competent jurisdiction to be in full compliance with this\nAgreement.\n17.\nThis Agreement constitutes the entire agreement of the parties and supersedes all prior agreements addressing\nthe terms, conditions and issues contained herein. Notwithstanding the foregoing, nothing in this Agreement is\nintended to or shall limit, supersede, nullify, or affect any other duty or responsibility Employee may have or owe\nthe Bank by virtue of any separate agreement or otherwise.\n18.\nEmployee acknowledges that any failure by the Bank to insist upon strict compliance with any terms or provisions\nof this Agreement shall not be deemed a waiver of any terms, provisions, or rights.\n19.\nEmployee acknowledges that his/her employment and/or continued employment with the Bank, the compensation\npaid to him/her by the Bank, and the Confidential Information and trade secrets provided to Employee by Peoples\nare sufficient consideration for the covenants contained herein.\n20.\nEmployee certifies that he/she has carefully read the entire content of this Non-Solicitation and Confidentiality\nAgreement, that Employee was afforded sufficient opportunity to obtain independent legal advice prior to\nexecuting this Agreement, and that Employee fully understands all of its terms, conditions and restrictions. In\naddition, Employee acknowledges that any legal action taken by Peoples to enforce this Agreement shall not be\ndeemed an attempt to prevent Employee from obtaining other employment.\nPEOPLES BANK SB\nBy:\nEmployee Signature\nBenjamin Bochnowski\nPresident & Chief Executive Officer\nEmployee Printed Name\n[Signature Page to Non-Solicitation and Confidentiality Agreement]\n4
+54589bbc863f2a358ded8aff65a82bd5.pdf	jurisdiction	EXHIBIT A\nConfidentiality and Executive Restriction Agreement\nThis Confidentiality and Executive Restriction Agreement (“Confidentiality Agreement”) is between OceanFirst\nFinancial Corp. and its successors and assigns, and [•] (“Executive”). Capitalized terms not defined herein have the\nmeanings set forth in the Executive Employment Agreement between the Parties dated of even date herewith.\nRECITALS\nExecutive is employed as [•] for [•]. By virtue of his position with the Company, Executive has access to\nConfidential Information (defined below), which must remain confidential during and after his employment. Executive\nalso has access to important customer and employee relationships that must be protected from unfair competition or\nmisuse that might advantage others to the detriment of the Company.\nWith this agreement, the Company is providing Executive a Change in Control benefit to which he is not\notherwise entitled. The Change in Control benefits, Executive’s continuing employment with the Company, and access to\nConfidential Information and relationships with Company customers and employees all serve as consideration for the\nobligations stated in this Confidentiality Agreement.\nAGREEMENT\n1.“Confidential Information” means information concerning the business, operations, strategies, financial status,\nproducts, services, customer names, customer lists and customer information of the Company, which is confidential or\nproprietary to the Company. Confidential Information does not include information that: (a) is or becomes generally\navailable to the public through no fault or act of Executive in violation of this Confidentiality Agreement; (b) is or\nbecomes available to Executive on a non-confidential basis from a source other than the Company not known to\nExecutive to be prohibited from disclosing such information by a contractual, legal or fiduciary obligation of\nconfidentiality; (c) is independently developed by the Executive without use of or reliance on, either directly or\nindirectly, Confidential Information; or (d) was known to or in the possession of Executive on a non-confidential basis\nprior to disclosure by the Company.\n2.All Confidential Information is and shall remain the property of the Company. No license or conveyance of any\nright is granted or implied by the distribution of any Confidential Information to Executive. Executive agrees not to use,\nduplicate, or reproduce in any way any Confidential Information for Executive’s own benefit or financial gain, or for any\nthird party’s benefit or financial gain, except in connection with rendering services to the Company. All documents\n(originals and copies, including electronic versions) containing Confidential Information shall be returned to the\nCompany upon termination.\n3.During, and after the termination of, his employment, Executive agrees not to disclose any of the Company’s\nConfidential Information to any person or entity or use such Confidential Information to his own benefit or the benefit of\nany person or entity other than the Company. This provision shall not prohibit disclosure of Confidential Information\nduring Executive’s employment to an officer, employee, fiduciary or affiliate of the Company, or a Company vendor,\nprovided a third party outside the Company (such as a vendor) has signed a similar confidentiality agreement, or such\ndisclosure of Confidential Information is required by lawful judicial or governmental order. Executive agrees to give the\nCompany reasonable notice in writing in advance of releasing Confidential Information pursuant to any judicial or\ngovernmental order. Executive additionally agrees to implement and maintain at all times reasonably appropriate\nprocedures and controls to ensure at all times the security and confidentiality of all of the Company’s Confidential\nInformation, to protect against any anticipated threats or hazards to the security or integrity of such information; and to\nprotect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to\nthe Company or any customer of the Company. Executive agrees to notify the Company of any known security breach,\nany known unauthorized release of Confidential Information, or any known\nunauthorized attempt to access Confidential Information of which he becomes aware within a reasonable time of the\noccurrence of such event. Such notice will include, at a minimum, the date and time of any such event, the nature and\nextent of Confidential Information involved in any such event, and the corrective measures taken by Employee in\nresponse to any such event.\n4.As a material inducement for the Company’s willingness to enter into the Confidentiality Agreement and offer\nthe substantial benefits memorialized herein to Executive, and in order to protect the Company’s Confidential\nInformation, which Executive acknowledges is a substantial asset of the Company, the Executive agrees that during\nExecutive’s employment with the Company and/or a Successor Employer and for a period of twelve (12) months after\nthe Executive’s termination of employment (the “Restricted Period”), Executive will not, directly or indirectly, on her\nown or on behalf of any other entity: (a) induce, or attempt to induce, any employee, executive, or independent contractor\nof the Company to cease such employment or relationship with the Company; (b) engage, employ, contract with, or\nparticipate in ownership with any person who was an employee, executive, or independent contractor for the Company\nwithin the six (6) months immediately prior to such engagement, employment, contract or other business relationship on\nbehalf of any Competing Business (defined below); or (c) solicit, divert, appropriate to or accept on behalf of any\nCompeting Business, any business or account from any customer of the Company with whom Executive has interacted as\npart of his duties with the Company or about whom Executive has acquired confidential information in the course of his\nemployment, or encourage or entice any such customer to cease its business or banking relationship with the Company.\n“Competing Business” means any bank or thrift with an office or branch in any county where the Company has an office\nor branch.\n5.As a material inducement for the Company’s willingness to enter into the Confidentiality Agreement and offer\nthe substantial benefits memorialized herein to Executive, and in order to protect the Company’s Confidential\nInformation, which Executive acknowledges is a substantial asset of the Company, Executive agrees that during\nExecutive’s employment with the Company and/or a Successor Employer and for the Restricted Period, Executive will\nnot, except as an employee of the Company, in any capacity for Executive or for others, directly or indirectly, in any\ncounty in New Jersey in which the Company has an office or branch as of the date of the termination of Executive’s\nemployment (the “Market Area”): (a) compete or engage in any business, with an office or branch in the Market Area,\nthat is the same or similar, or offers competing products and services with those offered by the Company; or (b) take any\naction to invest in, own, manage, operate, control, participate in, be employed or engaged by, or be connected in any\nmanner with any partnership, corporation or other business or entity with a branch or office in the Market Area engaging\nin a business the same or similar, or which offers competing products and services as those offered by the Company;\nnotwithstanding the foregoing, Executive is permitted hereunder to own, directly or indirectly, up to three percent (3%)\nof the issued and outstanding securities of any publicly traded financial institution with an office or branch within the\nMarket Area\n6.Executive acknowledges and agrees that the restrictive covenants in this Confidentiality Agreement are\nreasonable and necessary to protect the Company’s goodwill, confidential and proprietary information, trade secrets,\nbusiness strategies, customer relationships and other legitimate business interests, that irreparable injury will result to the\nCompany if Executive breaches or threatens to breach any terms of the Confidentiality Agreement, and that in the event\nExecutive breaches or threatens to breach any terms of the Confidentiality Agreement, the Company will have no\nadequate remedy at law. Executive accordingly agrees that in the event of any actual or threatened breach by him of any\nof the terms of the Confidentiality Agreement, the Company shall be entitled to immediate temporary injunctive and\nother equitable relief, and without the necessity of showing actual monetary damages, subject to hearing as soon\nthereafter as possible. Nothing contained herein shall be construed as prohibiting the Company from pursuing any other\nremedies available to it for such breach or threatened breach, including the recovery of any damages which it is able to\nprove.\n7.Executive agrees that a successor in interest to the Company may enforce the rights set forth in this\nConfidentiality Agreement following a change of control, without further express consent by Executive and that the\nCompany may, at its option, assign its rights to any successor or assign. Any amendment to or modification of this\nConfidentiality Agreement, or waiver of any obligation hereunder, shall be in writing signed by the party to be bound\nthereby. Any waiver by the Company of a breach of any provision of this Confidentiality Agreement shall not operate\nor be construed as a waiver of any subsequent breach of the provision or as a waiver of a breach of any other provision of\nthis Confidentiality Agreement.\n8.This Confidentiality Agreement shall be governed by the law of the State of New Jersey. This Confidentiality\nAgreement sets forth the entire agreement, and supersedes any prior agreements, with regard to the subject matter hereof.\nExecutive acknowledges that he has carefully read all of the provisions of this Confidentiality Agreement and agree that\n(a) the same are necessary for the reasonable and proper protection of the Company’s business, (b) every provision of this\nConfidentiality Agreement is reasonable with respect to its scope and duration and (c) he has received a copy of this\nConfidentiality Agreement and had the opportunity to review it with legal counsel, at his option. If either Party to this\nConfidentiality Agreement commences legal action to enforce any rights arising out of or relating to this Confidentiality\nAgreement, the prevailing Party in any such action shall be entitled to recover reasonable attorneys’ fees and costs,\nincluding fees and costs on appeal. The venue for any legal action shall be Toms River, New Jersey. If a court of law\nholds any provision of this Confidentiality Agreement to be illegal, invalid or unenforceable, (a) that provision shall be\ndeemed amended to achieve an economic effect that is as near as possible to that provided by the original provision and\n(b) the legality, validity and enforceability of the remaining provisions of this Confidentiality Agreement shall not be\naffected.\nIN WITNESS WHEREOF, the parties have executed and entered into this Confidentiality Agreement effective\non [•] day of [•], 2017.\n[Executive]\nOCEANFIRST FINANCIAL CORP.\nBy:\nName:\nTitle:	EX HIBIT A\nConfidentiality and Executive Restriction Agreement\nThis Confidentiality and Executive Restriction Agreement (”Confidentiality Agreemen ”) is between OceanFirst\nFinancial Corp. and its successors and assigns, and [°] (”Executive”). Capitalized terms not defined herein have the\nmeanings set forth in the Executive Employment Agreement between the Parties dated of even date herewith.\nRECITALS\nExecutive is employed as [°] for H. By virtue of his position with the Company, Executive has access to\nConfidential Information (defined below), which must remain confidential during and after his employment. Executive\nalso has access to important customer and employee relationships that must be protected from unfair competition or\nmisuse that might advantage others to the detriment of the Company.\nWith this agreement, the Company is providing Executive a Change in Control benefit to which he is not\notherwise entitled. The Change in Control benefits, Executive’s continuing employment with the Company, and access to\nConfidential Information and relationships with Company customers and employees all serve as consideration for the\nobligations stated in this Confidentiality Agreement.\nAGREEMENT\n1.”Confidential Information” means information concerning the business, operations, strategies, financial status,\nproducts, services, customer names, customer lists and customer information of the Company, which is confidential or\nproprietary to the Company. Confidential Information does not include information that: (a) is or becomes generally\navailable to the public through no fault or act of Executive in violation of this Confidentiality Agreement; (b) is or\nbecomes available to Executive on a non-confidential basis from a source other than the Company not known to\nExecutive to be prohibited from disclosing such information by a contractual, legal or fiduciary obligation of\nconfidentiality,- (c) is independently developed by the Executive without use of or reliance on, either directly or\nindirectly, Confidential Information,- or (d) was known to or in the possession of Executive on a non-confidential basis\nprior to disclosure by the Company.\n2.All Confidential Information is and shall remain the property of the Company. No license or conveyance of any\nright is granted or implied by the distribution of any Confidential Information to Executive. Executive agrees not to use,\nduplicate, or reproduce in any way any Confidential Information for Executive’s own benefit or financial gain, or for any\nthird party’s benefit or financial gain, except in connection with rendering services to the Company. All documents\n(originals and copies, including electronic versions) containing Confidential Information shall be returned to the\nCompany upon termination.\n3.During, and after the termination of, his employment, Executive agrees not to disclose any of the Company’s\nConfidential Information to any person or entity or use such Confidential Information to his own benefit or the benefit of\nany person or entity other than the Company. This provision shall not prohibit disclosure of Confidential Information\nduring Executive’s employment to an officer, employee, fiduciary or affiliate of the Company, or a Company vendor,\nprovided a third party outside the Company (such as a vendor) has signed a similar confidentiality agreement, or such\ndisclosure of Confidential Information is required by lawful judicial or governmental order. Executive agrees to give the\nCompany reasonable notice in writing in advance of releasing Confidential Information pursuant to any judicial or\ngovernmental order. Executive additionally agrees to implement and maintain at all times reasonably appropriate\nprocedures and controls to ensure at all times the security and confidentiality of all of the Company’s Confidential\nInformation, to protect against any anticipated threats or hazards to the security or integrity of such information,- and to\nprotect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to\nthe Company or any customer of the Company. Executive agrees to notify the Company of any known security breach,\nany known unauthorized release of Confidential Information, or any known\nunauthorized attempt to access Confidential Information of which he becomes aware within a reasonable time of the\noccurrence of such event. Such notice will include, at a minimum, the date and time of any such event, the nature and\nextent of Confidential Information involved in any such event, and the corrective measures taken by Employee in\nresponse to any such event.\n4.As a material inducement for the Company’s willingness to enter into the Confidentiality Agreement and offer\nthe substantial benefits memorialized herein to Executive, and in order to protect the Company’s Confidential\nInformation, which Executive acknowledges is a substantial asset of the Company, the Executive agrees that during\nExecutive’s employment with the Company and/or a Successor Employer and for a period of twelve (12) months after\nthe Executive’s termination of employment (the ”Restricted Period”), Executive will not, directly or indirectly, on her\nown or on behalf of any other entity: (a) induce, or attempt to induce, any employee, executive, or independent contractor\nof the Company to cease such employment or relationship with the Company,- (b) engage, employ, contract with, or\nparticipate in ownership with any person who was an employee, executive, or independent contractor for the Company\nwithin the six (6) months immediately prior to such engagement, employment, contract or other business relationship on\nbehalf of any Competing Business (defined below),- or (c) solicit, divert, appropriate to or accept on behalf of any\nCompeting Business, any business or account from any customer of the Company with whom Executive has interacted as\npart of his duties with the Company or about whom Executive has acquired confidential information in the course of his\nemployment, or encourage or entice any such customer to cease its business or banking relationship with the Company.\n” ompeting Business” means any bank or thrift with an office or branch in any county where the Company has an office\nor branch.\n5.As a material inducement for the Company’s willingness to enter into the Confidentiality Agreement and offer\nthe substantial benefits memorialized herein to Executive, and in order to protect the Company’s Confidential\nInformation, which Executive acknowledges is a substantial asset of the Company, Executive agrees that during\nExecutive’s employment with the Company and/or a Successor Employer and for the Restricted Period, Executive will\nnot, except as an employee of the Company, in any capacity for Executive or for others, directly or indirectly, in any\ncounty in New Jersey in which the Company has an office or branch as of the date of the termination of Executive’s\nemployment (the ”Market Area”): (a) compete or engage in any business, with an office or branch in the Market Area,\nthat is the same or similar, or offers competing products and services with those offered by the Company,- or (b) take any\naction to invest in, own, manage, operate, control, participate in, be employed or engaged by, or be connected in any\nmanner with any partnership, corporation or other business or entity with a branch or office in the Market Area engaging\nin a business the same or similar, or which offers competing products and services as those offered by the Company,-\nnotwithstanding the foregoing, Executive is permitted hereunder to own, directly or indirectly, up to three percent (3%)\nof the issued and outstanding securities of any publicly traded financial institution with an office or branch within the\nMarket Area\n6.Executive acknowledges and agrees that the restrictive covenants in this Confidentiality Agreement are\nreasonable and necessary to protect the Company’s goodwill, confidential and proprietary information, trade secrets,\nbusiness strategies, customer relationships and other legitimate business interests, that irreparable injury will result to the\nCompany if Executive breaches or threatens to breach any terms of the Confidentiality Agreement, and that in the event\nExecutive breaches or threatens to breach any terms of the Confidentiality Agreement, the Company will have no\nadequate remedy at law. Executive accordingly agrees that in the event of any actual or threatened breach by him of any\nof the terms of the Confidentiality Agreement, the Company shall be entitled to immediate temporary injunctive and\nother equitable relief, and without the necessity of showing actual monetary damages, subject to hearing as soon\nthereafter as possible. Nothing contained herein shall be construed as prohibiting the Company from pursuing any other\nremedies available to it for such breach or threatened breach, including the recovery of any damages which it is able to\nprove.\n7.Executive agrees that a successor in interest to the Company may enforce the rights set forth in this\nConfidentiality Agreement following a change of control, without further express consent by Executive and that the\nCompany may, at its option, assign its rights to any successor or assign. Any amendment to or modification of this\nConfidentiality Agreement, or waiver of any obligation hereunder, shall be in writing signed by the party to be bound\nthereby. Any waiver by the Company of a breach of any provision of this Confidentiality Agreement shall not operate\nor be construed as a waiver of any subsequent breach of the provision or as a waiver of a breach of any other provision of\nthis Confidentiality Agreement.\n8.This Confidentiality Agreement shall be governed by the law of the State of New Jersey. This Confidentiality\nAgreement sets forth the entire agreement, and supersedes any prior agreements, with regard to the subject matter hereof.\nExecutive acknowledges that he has carefully read all of the provisions of this Confidentiality Agreement and agree that\n(a) the same are necessary for the reasonable and proper protection of the Company’s business, (b) every provision of this\nConfidentiality Agreement is reasonable with respect to its scope and duration and (c) he has received a copy of this\nConfidentiality Agreement and had the opportunity to review it with legal counsel, at his option. If either Party to this\nConfidentiality Agreement commences legal action to enforce any rights arising out of or relating to this Confidentiality\nAgreement, the prevailing Party in any such action shall be entitled to recover reasonable attorneys’ fees and costs,\nincluding fees and costs on appeal. The venue for any legal action shall be Toms River, New Jersey. If a court of law\nholds any provision of this Confidentiality Agreement to be illegal, invalid or unenforceable, (a) that provision shall be\ndeemed amended to achieve an economic effect that is as near as possible to that provided by the original provision and\n(b) the legality, validity and enforceability of the remaining provisions of this Confidentiality Agreement shall not be\naffected.\nIN WITNESS WHEREO F, the parties have executed and entered into this Confidentiality Agreement effective\non['] day of['], 2017.\n[Executive]\n0C EANFIRST FINANCIAL CORP.\nBy:\nName:\nTitle:	EXHIBIT A\nConfidentiality and Executive Restriction Agreement\nThis Confidentiality and Executive Restriction greement ("Confidentiality Agreement") is between OceanFirst\nFinancial Corp. and its successors and assigns, and [-] ("Executive"). Capitalized terms not defined herein have the\nmeanings set forth in the Executive Employment A greement between the Parties dated of even date herewith.\nRECITALS\nExecutive is employed as [] for []. By virtue of his position with the Company, Executive has access to\nConfidential Information (defined below), which must remain confidential during and after his employment. Executive\nalso has access to important customer and employee relationships that must be protected from unfair competition or\nmisuse that might advantage others to the detriment of the Company.\nWith this agreement, the Company is providing Executive a Change in Control benefit to which he is not\notherwise entitled The Change in Control benefits, Executive's continuing employment with the Company, and access to\nConfidential Information and relationships with Company customers and employees all serve as consideration for the\nobligations stated in this Confidentiality Agreement.\nAGREEMENT\n."Confidential Information" means information concerning the business, operations, strategies, financial status,\nproducts, services, customer names, customer lists and customer information of the Company, which is confidential or\nproprietary to the Company. Confidential Information does not include information that: (a) is or becomes generally\navailable to the public through no fault or act of Executive in violation of this Confidentiality Agreement; (b) is or\nbecomes available to Executive on a non-confidential basis from a source other than the Company not known to\nExecutive to be prohibited from disclosing such information by a contractual, legal or fiduciary obligation of\nconfidentiality; (c) is independently developed by the Executive without use of or reliance on, either directly or\nindirectly, Confidential Information; or (d) was known to or in the possession of Executive on a non-confidential basis\nprior to disclosure by the Company.\n2.All Confidential Information is and shall remain the property of the Company. No license or conveyance of any\nright is granted or implied by the distribution of any Confidential Information to Executive. Executive agrees not to use,\nduplicate, or reproduce in any way any Confidential Information for Executive's own benefit or financial gain or for any\nthird party's benefit or financial gain, except in connection with rendering services to the Company. All documents\n(originals and copies, including electronic versions) containing Confidential Information shall be returned to the\nCompany upon termination.\n3.During, and after the termination of, his employment Executive agrees not to disclose any of the Company's\nConfidential Information to any person or entity or use such Confidential Information to his own benefit or the benefit of\nany person or entity other than the Company. This provision shall not prohibit disclosure of Confidential Information\nduring Executive's employment to an officer, employee, fiduciary or affiliate of the Company, or a Company vendor,\nprovided a third party outside the Company (such as a vendor) has signed a similar confidentiality agreement, or such\ndisclosure of Confidential Information is required by lawful judicial or governmental order. Executive agrees to give the\nCompany reasonable notice in writing in advance of releasing Confidential Information pursuant to any judicial or\ngovernmental order. Executive additionally agrees to implement and maintain at all times reasonably appropriate\nprocedures and controls to ensure at all times the security and confidentiality of all of the Company's Confidential\nInformation, to protect against any anticipated threats or hazards to the security or integrity of such information; and to\nprotect\nagainst unauthorized access to or use of such information that could result in substantial harm or inconvenience\nto\nthe Company or any customer of the Company. Executive agrees to notify the Company of any known security breach\nany known unauthorized release of Confidential Information, or any known\nunauthorized attempt to access Confidentia Information of which he becomes aware within a reasonable time of the\noccurrence of such event. Such notice will include, at a minimum, the date and time of any such event the nature and\nextent of Confidential Information involved in any such event, and the corrective measures taken by Employee in\nresponse to any such event.\n4.As a material inducement for the Company's willingness to enter into the Confidentiality Agreement and offer\nthe substantial benefits memorialized herein to Executive, and in order to protect the Company's Confidential\nInformation which Executive acknowledges is a substantial asset of the Company, the Executive agrees that during\nExecutive's\nemployment\nwith\nthe\nCompany\nand/or\na\nSuccessor\nEmployer\nand\nfor\na\nperiod\nof\ntwelve\n(12)\nmonths\nafter\nthe Executive's termination of employment (the "Restricted Period"), Executive will not, directly or indirectly, on her\nown or on behalf of any other entity: (a) induce, or attempt to induce, any employee, executive, or independent contractor\nof\nthe\nCompany\nto\ncease\nsuch\nemployment\nor\nrelationship\nwith\nthe\nCompany;\n(b)\nengage,\nemploy,\ncontract\nwith,\nor\nparticipate in ownership with any person who was an employee executive, or independent contractor for the Company\nwithin the six (6) months immediately prior to such engagement, employment, contract or other business relationship on\nbehalf of any Competing Business (defined below); or (c) solicit, divert, appropriate to or accept on behalf of any\nCompeting Business, any business or account from any customer of the Company with whom Executive has interacted as\npart of his duties with the Company or about whom Executive has acquired confidential information in the course of his\nemployment, or encourage or entice any such customer to cease its business or banking relationship with the Company.\n"Competing Business" means any bank or thrift with an office or branch in any county where the Company has an office\nor branch.\n5.As a material inducement for the Company's willingness to enter into the Confidentiality Agreement and offer\nthe substantial benefits memorialized herein to Executive, and in order to protect the Company's Confidential\nInformation, which Executive acknowledges is a substantia asset of the Company, Executive agrees that during\nExecutive's\nemployment\nwith\nthe\nCompany\nand/or\na\nSuccessor\nEmployer\nand\nfor\nthe\nRestricted\nPeriod,\nExecutive\nwill\nnot, except as an employee of the Company, in any capacity for Executive or for others, directly or indirectly, in any\ncounty in New Jersey in which the Company has an office or branch as of the date of the termination of Executive's\nemployment\n(the\n"Market\nArea"):\n(a)\ncompete\nor\nengage\nin\nany\nbusiness,\nwith\nan\noffice\nor\nbranch\nin\nthe\nMarket\nArea,\nthat is the same or similar, or offers competing products and services with those offered by the Company; or (b) take any\naction to invest in, own, manage, operate, control, participate in, be employed or engaged by, or be connected in any\nmanner with any partnership, corporation or other business or entity with a branch or office in the Market rea engaging\nin a business the same or similar, or which offers competing products and services as those offered by the Company;\nnotwithstanding the foregoing, Executive is permitted hereunder to own, directly or indirectly, up to three percent (3%)\nof the issued and outstanding securities of any publicly traded financial institution with an office or branch within the\nMarket Area\n6.Executive acknowledges and agrees that the restrictive covenants in this Confidentiality Agreement are\nreasonable\nand\nnecessary\nto\nprotect\nthe\nCompany's\ngoodwill,\nconfidential\nand\nproprietary\ninformation,\ntrade\nsecrets,\nbusiness strategies, customer relationships and other legitimate business interests, that irreparable injury will result to the\nCompany if Executive breaches or threatens to breach any terms of the Confidentiality Agreement, and that in the event\nExecutive\nbreaches\nor\nthreatens\nto\nbreach\nany\nterms\nof\nthe\nConfidentiality\ngreement,\nthe\nCompany\nwill\nhave\nno\nadequate remedy at law. Executive accordingly agrees that in the event of any actual or threatened breach by him of any\nof the terms of the Confidentiality Agreement, the Company shall be entitled to immediate temporary injunctive and\nother equitable relief and without the necessity of showing actual monetary damages, subject to hearing as soon\nthereafter as possible Nothing contained herein shall be construed as prohibiting the Company from pursuing any other\nremedies available to it for such breach or threatened breach, including the recovery of any damages which it is able to\nprove.\n7.Executive agrees that a successor in interest to the Company may enforce the rights set forth in this\nConfidentiality Agreement following a change of control, without further express consent by Executive and that the\nCompany\nmay,\nat\nits\noption,\nassign\nits\nrights\nto\nany\nsuccessor\nor\nassign.\nAny\namendment\nto\nor\nmodification\nof\nthis\nConfidentiality greement, or waiver of any obligation hereunder, shall be in writing signed by the party to be bound\nthereby. Any waiver by the Company of a breach of any provision of this Confidentiality A greement shall not operate\nor be construed as a waiver of any subsequent breach of the provision or as a waiver of a breach of any other provision of\nthis Confidentiality A greement.\n8.This Confidentiality A greement shall be governed by the law of the State of New Jersey This Confidentiality\nAgreement sets forth the entire agreement, and supersedes any prior agreements, with regard to the subject matter hereof.\nExecutive acknowledges that he has carefully read all of the provisions of this Confidentiality A greement and agree that\n(a) the same are necessary for the reasonable and proper protection of the Company's business, (b) every provision of this\nConfidentiality Agreement is reasonable with respect to its scope and duration and (c) he has received a copy of this\nConfidentiality A greement and had the opportunity to review it with legal counsel, at his option. If either Party to this\nConfidentiality A greement commences legal action to enforce any rights arising out of or relating to this Confidentiality\nAgreement, the prevailing Party in any such action shall be entitled to recover reasonable attorneys' fees and costs,\nincluding\nfees\nand\ncosts\non\nappeal.\nThe\nvenue\nfor\nany\nlegal\naction\nshall\nbe\nToms\nRiver,\nNew\nJersey.\nIf\na\ncourt\nof\nlaw\nholds any provision of this Confidentiality Agreement to be illegal, invalid or unenforceable, (a) that provision shall be\ndeemed amended to achieve an economic effect that is as near as possible to that provided by the original provision and\n(b)\nthe legality, validity and enforceability of the remaining provisions of this Confidentiality Agreement shall not be\naffected.\nIN WITNESS WHEREOF, the parties have executed and entered into this Confidentiality Agreement effective\non day of [], 2017.\n[Executive]\nOCEANFIRST FINANCIAL CORP.\nBy:\nName:\nTitle:	EXHIBIT A\nConfidentiality and Executive Restriction Agreement\nThis Confidentiality and Executive Restriction Agreement (“Confidentiality Agreement”) is between OceanFirst\nFinancial Corp. and its successors and assigns, and [•] (“Executive”). Capitalized terms not defined herein have the\nmeanings set forth in the Executive Employment Agreement between the Parties dated of even date herewith.\nRECITALS\nExecutive is employed as [•] for [•]. By virtue of his position with the Company, Executive has access to\nConfidential Information (defined below), which must remain confidential during and after his employment. Executive\nalso has access to important customer and employee relationships that must be protected from unfair competition or\nmisuse that might advantage others to the detriment of the Company.\nWith this agreement, the Company is providing Executive a Change in Control benefit to which he is not\notherwise entitled. The Change in Control benefits, Executive’s continuing employment with the Company, and access to\nConfidential Information and relationships with Company customers and employees all serve as consideration for the\nobligations stated in this Confidentiality Agreement.\nAGREEMENT\n1.“Confidential Information” means information concerning the business, operations, strategies, financial status,\nproducts, services, customer names, customer lists and customer information of the Company, which is confidential or\nproprietary to the Company. Confidential Information does not include information that: (a) is or becomes generally\navailable to the public through no fault or act of Executive in violation of this Confidentiality Agreement; (b) is or\nbecomes available to Executive on a non-confidential basis from a source other than the Company not known to\nExecutive to be prohibited from disclosing such information by a contractual, legal or fiduciary obligation of\nconfidentiality; (c) is independently developed by the Executive without use of or reliance on, either directly or\nindirectly, Confidential Information; or (d) was known to or in the possession of Executive on a non-confidential basis\nprior to disclosure by the Company.\n2.All Confidential Information is and shall remain the property of the Company. No license or conveyance of any\nright is granted or implied by the distribution of any Confidential Information to Executive. Executive agrees not to use,\nduplicate, or reproduce in any way any Confidential Information for Executive’s own benefit or financial gain, or for any\nthird party’s benefit or financial gain, except in connection with rendering services to the Company. All documents\n(originals and copies, including electronic versions) containing Confidential Information shall be returned to the\nCompany upon termination.\n3.During, and after the termination of, his employment, Executive agrees not to disclose any of the Company’s\nConfidential Information to any person or entity or use such Confidential Information to his own benefit or the benefit of\nany person or entity other than the Company. This provision shall not prohibit disclosure of Confidential Information\nduring Executive’s employment to an officer, employee, fiduciary or affiliate of the Company, or a Company vendor,\nprovided a third party outside the Company (such as a vendor) has signed a similar confidentiality agreement, or such\ndisclosure of Confidential Information is required by lawful judicial or governmental order. Executive agrees to give the\nCompany reasonable notice in writing in advance of releasing Confidential Information pursuant to any judicial or\ngovernmental order. Executive additionally agrees to implement and maintain at all times reasonably appropriate\nprocedures and controls to ensure at all times the security and confidentiality of all of the Company’s Confidential\nInformation, to protect against any anticipated threats or hazards to the security or integrity of such information; and to\nprotect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to\nthe Company or any customer of the Company. Executive agrees to notify the Company of any known security breach,\nany known unauthorized release of Confidential Information, or any known\nunauthorized attempt to access Confidential Information of which he becomes aware within a reasonable time of the\noccurrence of such event. Such notice will include, at a minimum, the date and time of any such event, the nature and\nextent of Confidential Information involved in any such event, and the corrective measures taken by Employee in\nresponse to any such event.\n4.As a material inducement for the Company’s willingness to enter into the Confidentiality Agreement and offer\nthe substantial benefits memorialized herein to Executive, and in order to protect the Company’s Confidential\nInformation, which Executive acknowledges is a substantial asset of the Company, the Executive agrees that during\nExecutive’s employment with the Company and/or a Successor Employer and for a period of twelve (12) months after\nthe Executive’s termination of employment (the “Restricted Period”), Executive will not, directly or indirectly, on her\nown or on behalf of any other entity: (a) induce, or attempt to induce, any employee, executive, or independent contractor\nof the Company to cease such employment or relationship with the Company; (b) engage, employ, contract with, or\nparticipate in ownership with any person who was an employee, executive, or independent contractor for the Company\nwithin the six (6) months immediately prior to such engagement, employment, contract or other business relationship on\nbehalf of any Competing Business (defined below); or (c) solicit, divert, appropriate to or accept on behalf of any\nCompeting Business, any business or account from any customer of the Company with whom Executive has interacted as\npart of his duties with the Company or about whom Executive has acquired confidential information in the course of his\nemployment, or encourage or entice any such customer to cease its business or banking relationship with the Company.\n“Competing Business” means any bank or thrift with an office or branch in any county where the Company has an office\nor branch.\n5.As a material inducement for the Company’s willingness to enter into the Confidentiality Agreement and offer\nthe substantial benefits memorialized herein to Executive, and in order to protect the Company’s Confidential\nInformation, which Executive acknowledges is a substantial asset of the Company, Executive agrees that during\nExecutive’s employment with the Company and/or a Successor Employer and for the Restricted Period, Executive will\nnot, except as an employee of the Company, in any capacity for Executive or for others, directly or indirectly, in any\ncounty in New Jersey in which the Company has an office or branch as of the date of the termination of Executive’s\nemployment (the “Market Area”): (a) compete or engage in any business, with an office or branch in the Market Area,\nthat is the same or similar, or offers competing products and services with those offered by the Company; or (b) take any\naction to invest in, own, manage, operate, control, participate in, be employed or engaged by, or be connected in any\nmanner with any partnership, corporation or other business or entity with a branch or office in the Market Area engaging\nin a business the same or similar, or which offers competing products and services as those offered by the Company;\nnotwithstanding the foregoing, Executive is permitted hereunder to own, directly or indirectly, up to three percent (3%)\nof the issued and outstanding securities of any publicly traded financial institution with an office or branch within the\nMarket Area\n6.Executive acknowledges and agrees that the restrictive covenants in this Confidentiality Agreement are\nreasonable and necessary to protect the Company’s goodwill, confidential and proprietary information, trade secrets,\nbusiness strategies, customer relationships and other legitimate business interests, that irreparable injury will result to the\nCompany if Executive breaches or threatens to breach any terms of the Confidentiality Agreement, and that in the event\nExecutive breaches or threatens to breach any terms of the Confidentiality Agreement, the Company will have no\nadequate remedy at law. Executive accordingly agrees that in the event of any actual or threatened breach by him of any\nof the terms of the Confidentiality Agreement, the Company shall be entitled to immediate temporary injunctive and\nother equitable relief, and without the necessity of showing actual monetary damages, subject to hearing as soon\nthereafter as possible. Nothing contained herein shall be construed as prohibiting the Company from pursuing any other\nremedies available to it for such breach or threatened breach, including the recovery of any damages which it is able to\nprove.\n7.Executive agrees that a successor in interest to the Company may enforce the rights set forth in this\nConfidentiality Agreement following a change of control, without further express consent by Executive and that the\nCompany may, at its option, assign its rights to any successor or assign. Any amendment to or modification of this\nConfidentiality Agreement, or waiver of any obligation hereunder, shall be in writing signed by the party to be bound\nthereby. Any waiver by the Company of a breach of any provision of this Confidentiality Agreement shall not operate\nor be construed as a waiver of any subsequent breach of the provision or as a waiver of a breach of any other provision of\nthis Confidentiality Agreement.\n8.This Confidentiality Agreement shall be governed by the law of the State of New Jersey. This Confidentiality\nAgreement sets forth the entire agreement, and supersedes any prior agreements, with regard to the subject matter hereof.\nExecutive acknowledges that he has carefully read all of the provisions of this Confidentiality Agreement and agree that\n(a) the same are necessary for the reasonable and proper protection of the Company’s business, (b) every provision of this\nConfidentiality Agreement is reasonable with respect to its scope and duration and (c) he has received a copy of this\nConfidentiality Agreement and had the opportunity to review it with legal counsel, at his option. If either Party to this\nConfidentiality Agreement commences legal action to enforce any rights arising out of or relating to this Confidentiality\nAgreement, the prevailing Party in any such action shall be entitled to recover reasonable attorneys’ fees and costs,\nincluding fees and costs on appeal. The venue for any legal action shall be Toms River, New Jersey. If a court of law\nholds any provision of this Confidentiality Agreement to be illegal, invalid or unenforceable, (a) that provision shall be\ndeemed amended to achieve an economic effect that is as near as possible to that provided by the original provision and\n(b) the legality, validity and enforceability of the remaining provisions of this Confidentiality Agreement shall not be\naffected.\nIN WITNESS WHEREOF, the parties have executed and entered into this Confidentiality Agreement effective\non [•] day of [•], 2017.\n[Executive]\nOCEANFIRST FINANCIAL CORP.\nBy:\nName:\nTitle:
+5646698b1542fd5a4d4b7bc60d84b8fd.pdf	effective_date jurisdiction party term	EX-99.1 2 dex991.htm SEVERANCE AND CONFIDENTIALITY AGREEMENT\nEXHIBIT 99.1\nSEVERANCE AND CONFIDENTIALITY AGREEMENT\nAND GENERAL AND SPECIAL RELEASE\nThis Severance and Confidentiality Agreement and General and Special Release (the “Agreement”) is entered into as of this 17th day of\nMay, 2005, by and between Patricia Sueltz (the “Employee”), on the one hand, and salesforce.com, inc. (together with its subsidiary and affiliated\ncorporations and entities, the “Company”), on the other hand (collectively, the “Parties”).\nWHEREAS, Employee is employed by the Company in San Francisco, California at its headquarters location;\nWHEREAS, the Company and Employee mutually agree to resolve all outstanding differences and to terminate Employee’s\nemployment relationship with the Company in an orderly manner. In addition, the Company wishes to continue to safeguard its proprietary and\nconfidential information;\nTHEREFORE, in consideration of the promises and mutual covenants contained herein, and for other good and valuable consideration,\nthe receipt and sufficiency of which are expressly acknowledged, the Parties agree as follows:\nAGREEMENT\n1. Employee’s Resignation. Pursuant to this Agreement, Employee will voluntarily resign from her position with the Company as of May\n31, 2005 (the “Effective Date”).\n2. Severance Payment. In consideration for Employee’s (a) resignation, (b) release of any and all claims she may have against the\nCompany, if any, and (c) adherence to each of the terms and conditions of this Agreement, including, without limitation, Employee’s obligations\nunder Section 3, and provided that Employee has signed this Agreement and has not later revoked it, the Parties agree as follows:\na) Severance Payment. Within ten (10) days after the later to occur of (i) the Effective Date, or (ii) the date on which Employee\nhas signed this Agreement and returned it to the Company, and provided that Employee has not revoked this Agreement pursuant to Section 4,\nbelow, the Company shall make a lump sum payment to Employee in the amount of Six Hundred and Fifty Thousand Dollars ($650,000.00) (the\n“Severance Payment”), less applicable taxes, withholdings, and deductions required by law.\nb) No Other Compensation or Benefits. Employee acknowledges and agrees that she has been paid by the Company all salary,\nbenefits or other compensation (including any accrued but unpaid vacation pay) to which Employee is entitled. Moreover, except as provided in this\nAgreement, Employee shall not be entitled to receive any other\ncompensation or benefits of any sort from the Company, its affiliates, or their officers, directors, employees, agents, insurance companies, attorneys,\nshareholders, or subsidiaries for, without limitation, salary, vacation, bonuses, stock, stock options, health care continuation coverage or any other\ncompensation or benefits.\nc) No Claims or Lawsuits. Employee represents that she has not filed or asserted any complaints, claims, or actions against the\nReleased Parties (defined below) with any state, federal, or local governmental agency or court or arbitrator and that she will not do so at any time\nhereafter, and that if any agency, court, or arbitrator assumes jurisdiction of any complaint, claim, or action against the Released Parties, Employee\nwill direct that agency, court, or arbitrator to withdraw from or dismiss with prejudice the matter;\nd) No Assistance. Employee understands that if this Agreement were not signed, she would have the right to voluntarily assist\nother individuals or entities in bringing claims against the Company. Employee further understands and agrees that she waives such right and she\nshall not aid or assist others in their pursuit of claims against the Company unless (1) Employee is required to provide such assistance pursuant to a\ncourt order, or (2) Employee’s assistance is sought by the EEOC or any other federal, state or local governmental entity.\ne) No Admission. This Agreement and compliance with this Agreement shall not be construed as an admission by the Company\nof any liability whatsoever, or as an admission by the Company of any violation of the rights of Employee or any person, or any violation of any\norder, law, statute, duty, or contract whatsoever against Employee or any person. The Company specifically denies and disclaims any liability to\nEmployee or any other person for any alleged violation of the rights of Employee or any person, or for any alleged violation of any order, law,\nstatute, duty, or contract on the part of the Company, its employees or agents or affiliated entities or their employees or agents.\n3. General and Special Release. As a material inducement for the Company to enter into this Agreement, Employee hereby forever\nreleases and discharges the Company, its subsidiary and affiliated corporations and entities, and their respective past and present officers, directors,\nmanagers, employees, agents, attorneys, successors and assigns (collectively, “Released Parties”) from any and all claims, charges, complaints, liens,\ndemands, causes of action, obligations, damages and liabilities, known or unknown, suspected or unsuspected, that Employee had, now has, or may\nhereafter claim to have against the Released Parties, arising out of or relating in any way to Employee’s hiring by, employment with, or separation\nfrom the Company or otherwise relating to any of the Released Parties from the beginning of time through the Effective Date. This release\nspecifically extends to, without limitation, claims or causes of action for wrongful termination, impairment of ability to compete in the open labor\nmarket, breach of an express or implied contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, fraud,\nmisrepresentation, defamation, slander, infliction of emotional distress, discrimination, harassment, retaliation, disability, loss of future earnings, and\nclaims under the California Constitution, the United States Constitution, and applicable state and federal fair employment laws, federal equal\nemployment opportunity laws, and federal and state labor statutes and regulations, including, but not limited to, the Civil Rights Act of 1964, as\namended, the Fair Labor Standards Act, as amended, the Worker Retraining and Notification Act of 1988,\n2\nas amended, the Americans With Disabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as amended, the Employee Retirement\nIncome Security Act of 1974, as amended, the Age Discrimination in Employment Act, as amended, and the California Fair Employment and\nHousing Act, as amended. However, nothing in this Agreement shall be construed as a release of the Company’s obligations under this Agreement.\nFurthermore, nothing in this Agreement shall affect the U.S. Equal Employment Opportunity Commission’s (“EEOC”) rights and responsibilities to\nenforce the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended, or any other applicable law, nor\nshall anything in this Agreement be construed as a basis for interfering with Employee’s protected right to file a charge with, or participate in an\ninvestigation or proceeding conducted by, the EEOC; or any other state, federal or local government entity; provided, however, if the EEOC or any\nother state, federal or local government entity commences an investigation on Employee’s behalf, Employee specifically waives and releases her\nright, if any, to recover any monetary or other benefits of any sort whatsoever arising from any such investigation, nor will she seek reinstatement to\nher former position with the Company.\nEmployee expressly waives all rights afforded by Section 1542 of the Civil Code of the State of California (“Section 1542”) with respect\nto Released Parties. Section 1542 states as follows:\nA GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT\nTO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE\nMATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.\nNotwithstanding the provisions of Section 1542, and for the purpose of implementing a full and complete release, Employee understands and agrees\nthat this Agreement is intended to include all claims, if any, which Employee may have and which Employee does not now know or suspect to exist\nin Employee’s favor against the Released Parties and that this Agreement extinguishes those claims.\n4. Review and Revocation Period.\na) Employee acknowledges that the Company has advised her that she may consult with an attorney of her choosing prior to\nsigning this Agreement and that she has no less than twenty-one (21) days during which to consider the provisions of this Agreement, although she\nmay sign and return it sooner;\nb) Employee has carefully read (or has had this Agreement read to her) and fully understands all of the provisions of this\nAgreement, which is written in a manner that she does understand;\n3\nc) Employee is, through this Agreement, releasing the Company from any and all claims she may have against the Company\narising before the execution of this Agreement;\nd) Employee knowingly and voluntarily agrees to all of the terms in this Agreement;\ne) Employee knowingly and voluntarily intends to be legally bound by this Agreement;\nf) Employee was advised and hereby is advised in writing to consider the terms of this Agreement and consult with an attorney of\nher choosing prior to signing this Agreement;\ng) Employee understands that rights or claims under the Age Discrimination in Employment Act of 1967 (29 U.S .C. §§ 621-634)\nthat may arise after the date this Agreement is signed are not waived;\nh) Employee understands that she has a period of seven (7) calendar days after the date that she signs this Agreement to revoke\nher acceptance of the terms of this Agreement by delivering a written notification in person, by messenger or by facsimile addressed to the Company\nat its offices in San Francisco, California (Attention: David Schellhase, General Counsel). Employee acknowledges and agrees that, in the event that\nEmployee revokes this Agreement, she will not be entitled to receive any of the benefits under this Agreement including, but not limited to, receipt\nof the Severance Payment.\n5. Confidentiality of Proprietary Information. Employee understands that, by virtue of Employee’s employment with the Company,\nEmployee has acquired or been exposed to Proprietary Information of the Company. “Proprietary Information” includes all ideas, information and\nmaterials, tangible or intangible, and know-how not generally known to the public, relating in any manner to the business of the Company, its\nproducts and services (including all trade secrets), its personnel (including its officers, directors, employees, and contractors), its clients, vendors and\nsuppliers and all others with whom it does business that Employee learned or acquired during Employee’s employment with the Company. Upon\nEmployee’s resignation on the Effective Date and thereafter, (a) Employee shall not use Proprietary Information, or disclose Proprietary Information\nto anyone, for any purpose, unless expressly requested to do so in writing by an authorized officer of the Company, (b) Employee shall not retain or\ntake with Employee any Proprietary Information in a Tangible Form (defined below), and (c) Employee shall immediately deliver to the Company\nany Proprietary Information in a Tangible Form that Employee may then or thereafter hold or control, as well as all other property, equipment,\ndocuments or things that Employee was issued or otherwise received or obtained during Employee’s employment with the Company. “Tangible\nForm” includes ideas, information or materials in written or graphic form, on a computer disc (including computer hard drives, floppy discs, network\nservers and compact discs) or other medium, or otherwise stored in or available through electronic, magnetic, videotape or other form.\n4\n6. Cooperation. Employee agrees, upon request by the Company, to consult with and provide assistance to the Company or its subsidiary\ncorporations and their affiliates and their counsel in the investigation, defense, institution, and/or maintenance of a criminal, civil, and/or\nadministrative action, proceeding, investigation or audit by or against the Company or its subsidiary corporations and their affiliates arising out of or\nrelating to matters in which Employee was involved or of which she had or acquired knowledge during her employment by the Company, its\naffiliates, and their predecessors, successors or assigns, or may become involved or acquire knowledge in her performance of duties including,\nwithout limitation, attendance as a witness at depositions, trials or other similar proceedings. The Company agrees that the assistance required of\nEmployee under this Section 6 will be reasonable both in nature and in the amount of time to be devoted by Employee.\n7. No Disparagement. The Parties agree to make no public or private statements that are disparaging of Employee, the Company or any\nof the Released Parties.\n8. Binding Effect. This Agreement shall be binding upon the Parties and their respective heirs, administrators, representatives, executors,\nsuccessors and assigns, and shall inure to the benefit of the parties and their respective heirs, administrators, representatives, executors, successors\nand assigns.\n9. Governing Law. This Agreement shall be governed by and construed and enforced pursuant to the laws of the State of California\napplicable to contracts made and entirely to be performed therein.\n10. Entire Agreement; Modification. This Agreement constitutes the entire understanding among the Parties and may not be modified without\nthe express written consent of the Parties. This Agreement supercedes all prior written and/or oral and all contemporaneous oral agreements,\nunderstandings and negotiations regarding the subject matter hereof. Notwithstanding the foregoing sentence, Employee agrees to continue to be\nbound by the terms and conditions of the Employee Inventions and Proprietary Rights Assignment Agreement executed by the parties dated as of\nFebruary 27, 2004.\n11. Binding Arbitration of Disputes. Except as necessary to specifically enforce or enjoin the breach of any of the terms of this Agreement (as\na provisional remedy in aid of arbitration) and except as provided by applicable law, the Parties agree that any dispute that may arise in connection\nwith, arising out of or relating to this Agreement, or any dispute that relates in any way, in whole or in part, to Employee’s hiring by, employment\nwith or separation from the Company, or any other dispute by and between the Parties, including the Released Parties, shall be submitted to binding\narbitration pursuant to the employment dispute resolution rules and procedures of the American Arbitration Association or such other rules and\nprocedures to which the Parties may otherwise agree. This arbitration obligation extends to any and all claims that may arise by and between the\nParties, including the Released Parties, and expressly extends to, without limitation, claims or causes of action for wrongful termination, impairment\nof ability to compete in the open labor market, breach of express or implied contract, breach of the covenant of good faith and fair dealing, breach of\nfiduciary duty, fraud, misrepresentation, defamation, slander, infliction of emotional distress, discrimination, harassment, disability, loss of future\n5\nearnings, and claims under the California Constitution, the United States Constitution, and applicable state and federal fair employment laws, federal\nequal employment opportunity laws, and federal and state labor statutes and regulations, including, but not limited to, the Civil Rights Act of 1964,\nas amended, the Fair Labor Standards Act, as amended, the Worker Retraining and Notification Act of 1988, as amended, the Americans With\nDisabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as amended, the Employee Retirement Income Security Act of 1974, as\namended, the Age Discrimination in Employment Act, as amended, and the California Fair Employment and Housing Act, as amended. Reasonable\ndiscovery shall be permitted in any arbitration and the arbitrator shall issue a written statement of decision that shall articulate the factual and legal\ngrounds for the decision and award. It is agreed that the arbitration fees and costs shall be paid by the Employer, unless otherwise permitted by law,\nin which case such fees and costs shall be evenly shared. The Employee shall pay for her own attorney fees unless reimbursement is otherwise\ndirected by the Arbitrator as part of a remedy authorized by statute.\n12. Voluntary Agreement; No Other Inducement. By signing this Agreement, Employee acknowledges and agrees that Employee enters into\nthis Agreement knowingly and voluntarily, has had sufficient opportunity to consult with legal counsel of Employee’s choice (and she in fact has\nconsulted with counsel in connection with the negotiation of and signing of this Agreement), and does not rely, and has not relied, on any fact,\nrepresentation, statement or assumption other than as specifically set forth in this Agreement.\nIN WITNESS WHEREOF, the Parties have signed this Agreement as of the dates set forth below.\nSALESFORCE.COM, INC.\n/s/ Kenneth I. Juster\nBy: Kenneth I. Juster\nIts: Executive Vice President, Legal Affairs and Corporate\nDevelopment\nDated: May 17, 2005\nEMPLOYEE\n/s/ Patricia Sueltz\nPatricia Sueltz\nDated: May 17, 2005\n6	EX-99.1 2 dex991.htm SEVERANCE AND CONFIDENTIALITY AGREEMENT\nEXHIBIT 99.1\nSEVERANCE AND CONFIDENTIALITY AGREEMENT\nAND GENERAIL AND SPECIAL RELEASE\nThis Severance and Confidentiality Agreement and General and Special Release (the “Agreement”) is entered into as of this 17th day of\nMay, 2005, by and between Patricia Sueltz (the “Employee”), on the one hand, and salesforce.com, inc. (together with its subsidiary and affiliated\ncorporations and entities, the “Company”), on the other hand (collectively, the “Parties”).\nWHEREAS, Employee is employed by the Company in San Francisco, California at its headquarters location;\nWHEREAS, the Company and Employee mutually agree to resolve all outstanding differences and to terminate Employee’s\nemployment relationship with the Company in an orderly manner. In addition, the Company wishes to continue to safeguard its proprietary and\nconfidential information;\nTHEREFORE, in consideration of the promises and mutual covenants contained herein, and for other good and valuable consideration,\nthe receipt and sufficiency of which are expressly acknowledged, the Parties agree as follows:\nAGREEMENT\n1. Employee’s Resignation. Pursuant to this Agreement, Employee will voluntarily resign from her position with the Company as of May\n31, 2005 (the “Effective Date”).\n2. Severance Payment. In consideration for Employee’s (a) resignation, (b) release of any and all claims she may have against the\nCompany, if any, and (c) adherence to each of the terms and conditions of this Agreement, including, without limitation, Employee’s obligations\nunder Section 3, and provided that Employee has signed this Agreement and has not later revoked it, the Parties agree as follows:\na) Severance Payment. Within ten (10) days after the later to occur of (i) the Effective Date, or (ii) the date on which Employee\nhas signed this Agreement and returned it to the Company, and provided that Employee has not revoked this Agreement pursuant to Section 4,\nbelow, the Company shall make a lump sum payment to Employee in the amount of Six Hundred and Fifty Thousand Dollars ($650,000.00) (the\n“Severance Payment”), less applicable taxes, withholdings, and deductions required by law.\nb) No Other Compensation or Benefits. Employee acknowledges and agrees that she has been paid by the Company all salary,\nbenefits or other compensation (including any accrued but unpaid vacation pay) to which Employee is entitled. Moreover, except as provided in this\nAgreement, Employee shall not be entitled to receive any other\ncompensation or benefits of any sort from the Company, its affiliates, or their officers, directors, employees, agents, insurance companies, attorneys,\nshareholders, or subsidiaries for, without limitation, salary, vacation, bonuses, stock, stock options, health care continuation coverage or any other\ncompensation or benefits.\nc) No Claims or Lawsuits. Employee represents that she has not filed or asserted any complaints, claims, or actions against the\nReleased Parties (defined below) with any state, federal, or local governmental agency or court or arbitrator and that she will not do so at any time\nhereafter, and that if any agency, court, or arbitrator assumes jurisdiction of any complaint, claim, or action against the Released Parties, Employee\nwill direct that agency, court, or arbitrator to withdraw from or dismiss with prejudice the matter;\nd) No Assistance. Employee understands that if this Agreement were not signed, she would have the right to voluntarily assist\nother individuals or entities in bringing claims against the Company. Employee further understands and agrees that she waives such right and she\nshall not aid or assist others in their pursuit of claims against the Company unless (1) Employee is required to provide such assistance pursuant to a\ncourt order, or (2) Employee’s assistance is sought by the EEOC or any other federal, state or local governmental entity.\ne) No Admission. This Agreement and compliance with this Agreement shall not be construed as an admission by the Company\nof any liability whatsoever, or as an admission by the Company of any violation of the rights of Employee or any person, or any violation of any\norder, law, statute, duty, or contract whatsoever against Employee or any person. The Company specifically denies and disclaims any liability to\nEmployee or any other person for any alleged violation of the rights of Employee or any person, or for any alleged violation of any order, law,\nstatute, duty, or contract on the part of the Company, its employees or agents or affiliated entities or their employees or agents.\n3. General and Special Release. As a material inducement for the Company to enter into this Agreement, Employee hereby forever\nreleases and discharges the Company, its subsidiary and affiliated corporations and entities, and their respective past and present officers, directors,\nmanagers, employees, agents, attorneys, successors and assigns (collectively, “Released Parties”) from any and all claims, charges, complaints, liens,\ndemands, causes of action, obligations, damages and liabilities, known or unknown, suspected or unsuspected, that Employee had, now has, or may\nhereafter claim to have against the Released Parties, arising out of or relating in any way to Employee’s hiring by, employment with, or separation\nfrom the Company or otherwise relating to any of the Released Parties from the beginning of time through the Effective Date. This release\nspecifically extends to, without limitation, claims or causes of action for wrongful termination, impairment of ability to compete in the open labor\nmarket, breach of an express or implied contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, fraud,\nmisrepresentation, defamation, slander, infliction of emotional distress, discrimination, harassment, retaliation, disability, loss of future earnings, and\nclaims under the California Constitution, the United States Constitution, and applicable state and federal fair employment laws, federal equal\nemployment opportunity laws, and federal and state labor statutes and regulations, including, but not limited to, the Civil Rights Act of 1964, as\namended, the Fair Labor Standards Act, as amended, the Worker Retraining and Notification Act of 1988,\n2\nas amended, the Americans With Disabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as amended, the Employee Retirement\nIncome Security Act of 1974, as amended, the Age Discrimination in Employment Act, as amended, and the California Fair Employment and\nHousing Act, as amended. However, nothing in this Agreement shall be construed as a release of the Company’s obligations under this Agreement.\nFurthermore, nothing in this Agreement shall affect the U.S. Equal Employment Opportunity Commission’s (“EEOC”) rights and responsibilities to\nenforce the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended, or any other applicable law, nor\nshall anything in this Agreement be construed as a basis for interfering with Employee’s protected right to file a charge with, or participate in an\ninvestigation or proceeding conducted by, the EEOC; or any other state, federal or local government entity; provided, however, if the EEOC or any\nother state, federal or local government entity commences an investigation on Employee’s behalf, Employee specifically waives and releases her\nright, if any, to recover any monetary or other benefits of any sort whatsoever arising from any such investigation, nor will she seek reinstatement to\nher former position with the Company.\nEmployee expressly waives all rights afforded by Section 1542 of the Civil Code of the State of California (“Section 1542”) with respect\nto Released Parties. Section 1542 states as follows:\nA GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT\nTO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE\nMATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.\nNotwithstanding the provisions of Section 1542, and for the purpose of implementing a full and complete release, Employee understands and agrees\nthat this Agreement is intended to include all claims, if any, which Employee may have and which Employee does not now know or suspect to exist\nin Employee’s favor against the Released Parties and that this Agreement extinguishes those claims.\n4. Review and Revocation Period.\na) Employee acknowledges that the Company has advised her that she may consult with an attorney of her choosing prior to\nsigning this Agreement and that she has no less than twenty-one (21) days during which to consider the provisions of this Agreement, although she\nmay sign and return it sooner;\nb) Employee has carefully read (or has had this Agreement read to her) and fully understands all of the provisions of this\nAgreement, which is written in a manner that she does understand;\nc) Employee is, through this Agreement, releasing the Company from any and all claims she may have against the Company\narising before the execution of this Agreement;\nd) Employee knowingly and voluntarily agrees to all of the terms in this Agreement;\ne) Employee knowingly and voluntarily intends to be legally bound by this Agreement;\nf) Employee was advised and hereby is advised in writing to consider the terms of this Agreement and consult with an attorney of\nher choosing prior to signing this Agreement;\ng) Employee understands that rights or claims under the Age Discrimination in Employment Act of 1967 (29 U.S.C. §§ 621-634)\nthat may arise after the date this Agreement is signed are not waived;\nh) Employee understands that she has a period of seven (7) calendar days after the date that she signs this Agreement to revoke\nher acceptance of the terms of this Agreement by delivering a written notification in person, by messenger or by facsimile addressed to the Company\nat its offices in San Francisco, California (Attention: David Schellhase, General Counsel). Employee acknowledges and agrees that, in the event that\nEmployee revokes this Agreement, she will not be entitled to receive any of the benefits under this Agreement including, but not limited to, receipt\nof the Severance Payment.\n5. Confidentiality of Proprietary Information. Employee understands that, by virtue of Employee’s employment with the Company,\nEmployee has acquired or been exposed to Proprietary Information of the Company. “Proprietary Information” includes all ideas, information and\nmaterials, tangible or intangible, and know-how not generally known to the public, relating in any manner to the business of the Company, its\nproducts and services (including all trade secrets), its personnel (including its officers, directors, employees, and contractors), its clients, vendors and\nsuppliers and all others with whom it does business that Employee learned or acquired during Employee’s employment with the Company. Upon\nEmployee’s resignation on the Effective Date and thereafter, (a) Employee shall not use Proprietary Information, or disclose Proprietary Information\nto anyone, for any purpose, unless expressly requested to do so in writing by an authorized officer of the Company, (b) Employee shall not retain or\ntake with Employee any Proprietary Information in a Tangible Form (defined below), and (c) Employee shall immediately deliver to the Company\nany Proprietary Information in a Tangible Form that Employee may then or thereafter hold or control, as well as all other property, equipment,\ndocuments or things that Employee was issued or otherwise received or obtained during Employee’s employment with the Company. “Tangible\nForm” includes ideas, information or materials in written or graphic form, on a computer disc (including computer hard drives, floppy discs, network\nservers and compact discs) or other medium, or otherwise stored in or available through electronic, magnetic, videotape or other form.\n4\n6. Cooperation. Employee agrees, upon request by the Company, to consult with and provide assistance to the Company or its subsidiary\ncorporations and their affiliates and their counsel in the investigation, defense, institution, and/or maintenance of a criminal, civil, and/or\nadministrative action, proceeding, investigation or audit by or against the Company or its subsidiary corporations and their affiliates arising out of or\nrelating to matters in which Employee was involved or of which she had or acquired knowledge during her employment by the Company, its\naffiliates, and their predecessors, successors or assigns, or may become involved or acquire knowledge in her performance of duties including,\nwithout limitation, attendance as a witness at depositions, trials or other similar proceedings. The Company agrees that the assistance required of\nEmployee under this Section 6 will be reasonable both in nature and in the amount of time to be devoted by Employee.\n7. No Disparagement. The Parties agree to make no public or private statements that are disparaging of Employee, the Company or any\nof the Released Parties.\n8. Binding Effect. This Agreement shall be binding upon the Parties and their respective heirs, administrators, representatives, executors,\nsuccessors and assigns, and shall inure to the benefit of the parties and their respective heirs, administrators, representatives, executors, successors\nand assigns.\n9. Governing Law. This Agreement shall be governed by and construed and enforced pursuant to the laws of the State of California\napplicable to contracts made and entirely to be performed therein.\n10. Entire Agreement; Modification. This Agreement constitutes the entire understanding among the Parties and may not be modified without\nthe express written consent of the Parties. This Agreement supercedes all prior written and/or oral and all contemporaneous oral agreements,\nunderstandings and negotiations regarding the subject matter hereof. Notwithstanding the foregoing sentence, Employee agrees to continue to be\nbound by the terms and conditions of the Employee Inventions and Proprietary Rights Assignment Agreement executed by the parties dated as of\nFebruary 27, 2004.\n11. Binding Arbitration of Disputes. Except as necessary to specifically enforce or enjoin the breach of any of the terms of this Agreement (as\na provisional remedy in aid of arbitration) and except as provided by applicable law, the Parties agree that any dispute that may arise in connection\nwith, arising out of or relating to this Agreement, or any dispute that relates in any way, in whole or in part, to Employee’s hiring by, employment\nwith or separation from the Company, or any other dispute by and between the Parties, including the Released Parties, shall be submitted to binding\narbitration pursuant to the employment dispute resolution rules and procedures of the American Arbitration Association or such other rules and\nprocedures to which the Parties may otherwise agree. This arbitration obligation extends to any and all claims that may arise by and between the\nParties, including the Released Parties, and expressly extends to, without limitation, claims or causes of action for wrongful termination, impairment\nof ability to compete in the open labor market, breach of express or implied contract, breach of the covenant of good faith and fair dealing, breach of\nfiduciary duty, fraud, misrepresentation, defamation, slander, infliction of emotional distress, discrimination, harassment, disability, loss of future\n5\nearnings, and claims under the California Constitution, the United States Constitution, and applicable state and federal fair employment laws, federal\nequal employment opportunity laws, and federal and state labor statutes and regulations, including, but not limited to, the Civil Rights Act of 1964,\nas amended, the Fair Labor Standards Act, as amended, the Worker Retraining and Notification Act of 1988, as amended, the Americans With\nDisabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as amended, the Employee Retirement Income Security Act of 1974, as\namended, the Age Discrimination in Employment Act, as amended, and the California Fair Employment and Housing Act, as amended. Reasonable\ndiscovery shall be permitted in any arbitration and the arbitrator shall issue a written statement of decision that shall articulate the factual and legal\ngrounds for the decision and award. It is agreed that the arbitration fees and costs shall be paid by the Employer, unless otherwise permitted by law,\nin which case such fees and costs shall be evenly shared. The Employee shall pay for her own attorney fees unless reimbursement is otherwise\ndirected by the Arbitrator as part of a remedy authorized by statute.\n12. Voluntary Agreement; No Other Inducement. By signing this Agreement, Employee acknowledges and agrees that Employee enters into\nthis Agreement knowingly and voluntarily, has had sufficient opportunity to consult with legal counsel of Employee’s choice (and she in fact has\nconsulted with counsel in connection with the negotiation of and signing of this Agreement), and does not rely, and has not relied, on any fact,\nrepresentation, statement or assumption other than as specifically set forth in this Agreement.\n \nIN WITNESS WHEREOF, the Parties have signed this Agreement as of the dates set forth below.\nSALESFORCE.COM, INC.\n/s/ Kenneth I. Juster\nBy: Kenneth I. Juster\nIts: Executive Vice President, Legal Affairs and Corporate\nDevelopment\nDated: May 17, 2005\nEMPLOYEE\n/s/ Patricia Sueltz\nPatricia Sueltz\nDated: May 17, 2005	EX-99.1 2 dex991.htm SEVERANCE AND CONFIDENTIALITY AGREEMENT\nEXHIBIT 99.1\nSEVERANCE AND CONFIDENTIALITY AGREEMENT\nAND GENERAL AND SPECIAL RELEASE\nThis Severance and Confidentiality Agreement and General and Special Release (the "Agreement") is entered into as of this 17th day of\nMay, 2005, by and between Patricia Sueltz (the "Employee"), on the one hand, and salesforce.com, inc. (together with its subsidiary and affiliated\ncorporations and entities, the "Company"), on the other hand (collectively, the "Parties").\nWHEREAS, Employee is employed by the Company in San Francisco, California at its headquarters location;\nWHEREAS, the Company and Employee mutually agree to resolve all outstanding differences and to terminate Employee's\nemployment relationship with the Company in an orderly manner. In addition, the Company wishes to continue to safeguard its proprietary and\nconfidential information;\nTHEREFORE, in consideration of the promises and mutual covenants contained herein, and for other good and valuable consideration,\nthe receipt and sufficiency of which are expressly acknowledged, the Parties agree as follows:\nAGREEMENT\n1. Employee's Resignation. Pursuant to this Agreement, Employee will voluntarily resign from her position with the Company as of May\n31, 2005 (the "Effective Date").\n2. Severance Payment. In consideration for Employee's (a) resignation, (b) release of any and all claims she may have against the\nCompany, if any, and (c) adherence to each of the terms and conditions of this Agreement, including, without limitation, Employee's obligations\nunder Section 3, and provided that Employee has signed this Agreement and has not later revoked it, the Parties agree as follows:\na) Severance Payment. Within ten (10) days after the later to occur of (i) the Effective Date, or (ii) the date on which Employee\nhas signed this Agreement and returned it to the Company, and provided that Employee has not revoked this Agreement pursuant to Section 4,\nbelow, the Company shall make a lump sum payment to Employee in the amount of Six Hundred and Fifty Thousand Dollars ($650,000.00) (the\n"Severance Payment"), less applicable taxes, withholdings, and deductions required by law.\nb) No Other Compensation or Benefits. Employee acknowledges and agrees that she has been paid by the Company all salary,\nbenefits or other compensation (including any accrued but unpaid vacation pay) to which Employee is entitled. Moreover, except as provided in this\nAgreement, Employee shall not be entitled to receive any other\ncompensation or benefits of any sort from the Company, its affiliates, or their officers, directors, employees, agents, insurance companies, attorneys,\nshareholders, or subsidiaries for, without limitation, salary, vacation, bonuses, stock, stock options, health care continuation coverage or any other\ncompensation or benefits.\nc) No Claims or Lawsuits. Employee represents that she has not filed or asserted any complaints, claims, or actions against the\nReleased Parties (defined below) with any state, federal, or local governmental agency or court or arbitrator and that she will not do so at any time\nhereafter, and that if any agency, court, or arbitrator assumes jurisdiction of any complaint, claim, or action against the Released Parties, Employee\nwill direct that agency, court, or arbitrator to withdraw from or dismiss with prejudice the matter;\nd) No Assistance. Employee understands that if this Agreement were not signed, she would have the right to voluntarily assist\nother individuals or entities in bringing claims against the Company. Employee further understands and agrees that she waives such right and she\nshall not aid or assist others in their pursuit of claims against the Company unless (1) Employee is required to provide such assistance pursuant to a\ncourt order, or (2) Employee's assistance is sought by the EEOC or any other federal, state or local governmental entity.\ne) No Admission. This Agreement and compliance with this Agreement shall not be construed as an admission by the Company\nof any liability whatsoever, or as an admission by the Company of any violation of the rights of Employee or any person, or any violation of any\norder, law, statute, duty, or contract whatsoever against Employee or any person. The Company specifically denies and disclaims any liability to\nEmployee or any other person for any alleged violation of the rights of Employee or any person, or for any alleged violation of any order, law,\nstatute, duty, or contract on the part of the Company, its employees or agents or affiliated entities or their employees or agents.\n3. General and Special Release. As a material inducement for the Company to enter into this Agreement, Employee hereby forever\nreleases and discharges the Company, its subsidiary and affiliated corporations and entities, and their respective past and present officers, directors,\nmanagers, employees, agents, attorneys, successors and assigns (collectively, "Released Parties") from any and all claims, charges, complaints, liens,\ndemands, causes of action, obligations, damages and liabilities, known or unknown, suspected or unsuspected, that Employee had,\nnow\nhas,\nor\nmay\nhereafter claim to have against the Released Parties, arising out of or relating in any way to Employee's hiring by, employment with, or separation\nfrom the Company or otherwise relating to any of the Released Parties from the beginning of time through the Effective Date. This release\nspecifically extends to, without limitation, claims or causes of action for wrongful termination, impairment of ability to compete in the open labor\nmarket, breach of an express or implied contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, fraud,\nmisrepresentation, defamation, slander, infliction of emotional distress, discrimination, harassment, retaliation, disability, loss of future earnings, and\nclaims under the California Constitution, the United States Constitution, and applicable state and federal fair employment laws, federal equal\nemployment opportunity laws, and federal and state labor statutes and regulations, including, but not limited to, the Civil Rights Act of 1964, as\namended, the Fair Labor Standards Act, as amended, the Worker Retraining and Notification Act of 1988,\n2\nas amended, the Americans With Disabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as amended, the Employee Retirement\nIncome Security Act of 1974, as amended, the Age Discrimination in Employment Act, as amended, and the California Fair Employment and\nHousing Act, as amended. However, nothing in this Agreement shall be construed as a release of the Company's obligations under this Agreement.\nFurthermore, nothing in this Agreement shall affect the U.S. Equal Employment Opportunity Commission's ("EEOC") rights and responsibilities to\nenforce the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended, or any other applicable law, nor\nshall anything in this Agreement be construed as a basis for interfering with Employee's protected right to file a charge with, or participate in an\ninvestigation or proceeding conducted by, the EEOC; or any other state, federal or local government entity; provided, however, if the EEOC or any\nother state, federal or local government entity commences an investigation on Employee's behalf, Employee specifically waives and releases her\nright, if any, to recover any monetary or other benefits of any sort whatsoever arising from any such investigation, nor will she seek reinstatement to\nher former position with the Company.\nEmployee expressly waives all rights afforded by Section 1542 of the Civil Code of the State of California ("Section 1542") with respect\nto Released Parties. Section 1542 states as follows:\nA GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT\nTO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE\nMATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.\nNotwithstanding the provisions of Section 1542, and for the purpose of implementing a full and complete release, Employee understands and agrees\nthat this Agreement is intended to include all claims, if any, which Employee may have and which Employee does not now know or suspect to exist\nin Employee's favor against the Released Parties and that this Agreement extinguishes those claims.\n4. Review and Revocation Period.\na) Employee acknowledges that the Company has advised her that she may consult with an attorney of her choosing prior\nto\nsigning this Agreement and that she has no less than twenty-one (21) days during which to consider the provisions of this Agreement, although she\nmay sign and return it sooner;\nb) Employee has carefully read (or has had this Agreement read to her) and fully understands all of the provisions of this\nAgreement, which is written in a manner that she does understand;\n3\nc) Employee is, through this Agreement, releasing the Company from any and all claims she may have against the Company\narising before the execution of this Agreement;\nd) Employee knowingly and voluntarily agrees to all of the terms in this Agreement;\ne) Employee knowingly and voluntarily intends to be legally bound by this Agreement;\nf) Employee was advised and hereby is advised in writing to consider the terms of this Agreement and consult with an attorney of\nher choosing prior to signing this Agreement;\ng) Employee understands that rights or claims under the Age Discrimination in Employment Act of 1967 (29 U.S.C. 88 621-634)\nthat may arise after the date this Agreement is signed are not waived;\nh) Employee understands that she has a period of seven (7) calendar days after the date that she signs this Agreement to revoke\nher acceptance of the terms of this Agreement by delivering a written notification in person, by messenger or by facsimile addressed to the Company\nat\nits\noffices\nin\nSan\nFrancisco,\nCalifornia\n(Attention:\nDavid\nSchellhase,\nGeneral\nCounsel)\nEmployee\nacknowledges\nand\nagrees\nthat,\nin\nthe\nevent\nthat\nEmployee revokes this Agreement, she will not be entitled to receive any of the benefits under this Agreement including, but not limited to, receipt\nof the Severance Payment.\n5. Confidentiality. of Proprietary Information. Employee understands that, by virtue of Employee's employment with the Company,\nEmployee has acquired or been exposed to Proprietary Information of the Company. "Proprietary Information" includes all ideas, information and\nmaterials, tangible or intangible, and know-how not generally known to the public, relating in any manner to the business of the Company, its\nproducts and services (including all trade secrets), its personnel (including its officers, directors, employees, and contractors), its clients, vendors and\nsuppliers and all others with whom it does business that Employee learned or acquired during Employee's employment with the Company. Upon\nEmployee's resignation on the Effective Date and thereafter, (a) Employee shall not use Proprietary Information, or disclose Proprietary Information\nto anyone, for any purpose, unless expressly requested to do so in writing by an authorized officer of the Company, (b) Employee shall not retain or\ntake with Employee any Proprietary Information in a Tangible Form (defined below), and (c) Employee shall immediately deliver to the Company\nany Proprietary Information in a Tangible Form that Employee may then or thereafter hold or control, as well as all other property, equipment,\ndocuments or things that Employee was issued or otherwise received or obtained during Employee's employment with the Company. "Tangible\nForm" includes ideas, information or materials in written or graphic form, on a computer disc (including computer hard drives, floppy discs, network\nservers and compact discs) or other medium, or otherwise stored in or available through electronic, magnetic, videotape or other form.\n4\n6. Cooperation. Employee agrees, upon request by the Company, to consult with and provide assistance to the Company or its subsidiary\ncorporations and their affiliates and their counsel in the investigation, defense, institution, and/or maintenance of a criminal, civil, and/or\nadministrative action, proceeding, investigation or audit by or against the Company or its subsidiary corporations and their affiliates arising out of or\nrelating to matters in which Employee was involved or of which she had or acquired knowledge during her employment by the Company, its\naffiliates, and their predecessors, successors or assigns, or may become involved or acquire knowledge in her performance of duties including,\nwithout limitation, attendance as a witness at depositions, trials or other similar proceedings. The Company agrees that the assistance required of\nEmployee under this Section 6 will be reasonable both in nature and in the amount of time to be devoted by Employee.\n7. No Disparagement. The Parties agree to make no public or private statements that are disparaging of Employee, the Company or any\nof the Released Parties.\n8. Binding Effect. This Agreement shall be binding upon the Parties and their respective heirs, administrators, representatives, executors,\nsuccessors and assigns, and shall inure to the benefit of the parties and their respective heirs, administrators, representatives, executors, successors\nand assigns.\n9. Governing Law. This Agreement shall be governed by and construed and enforced pursuant to the laws of the State of California\napplicable to contracts made and entirely to be performed therein.\n10. Entire Agreement; Modification. This Agreement constitutes the entire understanding among the Parties and may not be modified without\nthe express written consent of the Parties. This Agreement supercedes all prior written and/or oral and all contemporaneous oral agreements,\nunderstandings and negotiations regarding the subject matter hereof. Notwithstanding the foregoing sentence, Employee agrees to continue to be\nbound by the terms and conditions of the Employee Inventions and Proprietary Rights Assignment Agreement executed by the parties dated as\nof\nFebruary 27, 2004.\n11. Binding Arbitration of Disputes. Except as necessary to specifically enforce or enjoin the breach of any of the terms of this Agreement (as\na provisional remedy in aid of arbitration) and except as provided by applicable law, the Parties agree that any dispute that may arise in connection\nwith, arising out of or relating to this Agreement, or any dispute that relates in any way, in whole or in part, to Employee's hiring by, employment\nwith or separation from the Company, or any other dispute by and between the Parties, including the Released Parties, shall be submitted to binding\narbitration pursuant to the employment dispute resolution rules and procedures of the American Arbitration Association or such other rules and\nprocedures to which the Parties may otherwise agree. This arbitration obligation extends to any and all claims that may arise by and between the\nParties, including the Released Parties, and expressly extends to, without limitation, claims or causes of action for wrongful termination, impairment\nof ability to compete in the open labor market, breach of express or implied contract, breach of the covenant of good faith and fair dealing, breach of\nfiduciary duty, fraud, misrepresentation, defamation, slander, infliction of emotional distress, discrimination, harassment, disability, loss of future\n5\nearnings, and claims under the California Constitution, the United States Constitution, and applicable state and federal fair employment laws, federal\nequal employment opportunity laws, and federal and state labor statutes and regulations, including, but not limited to, the Civil Rights Act of 1964,\nas amended, the Fair Labor Standards Act, as amended, the Worker Retraining and Notification Act of 1988, as amended, the Americans With\nDisabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as amended, the Employee Retirement Income Security Act of 1974, as\namended, the Age Discrimination in Employment Act, as amended, and the California Fair Employment and Housing Act, as amended. Reasonable\ndiscovery shall be permitted in any arbitration and the arbitrator shall issue a written statement of decision that shall articulate the factual and legal\ngrounds for the decision and award. It is agreed that the arbitration fees and costs shall be paid by the Employer, unless otherwise permitted by law,\nin which case such fees and costs shall be evenly shared. The Employee shall pay for her own attorney fees unless reimbursement is otherwise\ndirected by the Arbitrator as part of a remedy authorized by statute.\n12. Voluntary. Agreement; No Other Inducement. By signing this Agreement, Employee acknowledges and agrees that Employee enters into\nthis Agreement knowingly and voluntarily, has had sufficient opportunity to consult with legal counsel of Employee's choice (and she in fact has\nconsulted with counsel in connection with the negotiation of and signing of this Agreement), and does not rely, and has not relied, on any fact,\nrepresentation, statement or assumption other than as specifically set forth in this Agreement.\nIN WITNESS WHEREOF, the Parties have signed this Agreement as of the dates set forth below.\nSALESFORCE.COM, INC.\n/s/ Kenneth I. Juster\nBy: Kenneth I. Juster\nIts: Executive Vice President, Legal Affairs and Corporate\nDevelopment\nDated: May 17, 2005\nEMPLOYEE\n/s/ Patricia Sueltz\nPatricia Sueltz\nDated: May 17, 2005\n6	EX-99.1 2 dex991.htm SEVERANCE AND CONFIDENTIALITY AGREEMENT\nEXHIBIT 99.1\nSEVERANCE AND CONFIDENTIALITY AGREEMENT\nAND GENERAL AND SPECIAL RELEASE\nThis Severance and Confidentiality Agreement and General and Special Release (the “Agreement”) is entered into as of this 17th day of\nMay, 2005, by and between Patricia Sueltz (the “Employee”), on the one hand, and salesforce.com, inc. (together with its subsidiary and affiliated\ncorporations and entities, the “Company”), on the other hand (collectively, the “Parties”).\nWHEREAS, Employee is employed by the Company in San Francisco, California at its headquarters location;\nWHEREAS, the Company and Employee mutually agree to resolve all outstanding differences and to terminate Employee’s\nemployment relationship with the Company in an orderly manner. In addition, the Company wishes to continue to safeguard its proprietary and\nconfidential information;\nTHEREFORE, in consideration of the promises and mutual covenants contained herein, and for other good and valuable consideration,\nthe receipt and sufficiency of which are expressly acknowledged, the Parties agree as follows:\nAGREEMENT\n1. Employee’s Resignation. Pursuant to this Agreement, Employee will voluntarily resign from her position with the Company as of May\n31, 2005 (the “Effective Date”).\n2. Severance Payment. In consideration for Employee’s (a) resignation, (b) release of any and all claims she may have against the\nCompany, if any, and (c) adherence to each of the terms and conditions of this Agreement, including, without limitation, Employee’s obligations\nunder Section 3, and provided that Employee has signed this Agreement and has not later revoked it, the Parties agree as follows:\na) Severance Payment. Within ten (10) days after the later to occur of (i) the Effective Date, or (ii) the date on which Employee\nhas signed this Agreement and returned it to the Company, and provided that Employee has not revoked this Agreement pursuant to Section 4,\nbelow, the Company shall make a lump sum payment to Employee in the amount of Six Hundred and Fifty Thousand Dollars ($650,000.00) (the\n“Severance Payment”), less applicable taxes, withholdings, and deductions required by law.\nb) No Other Compensation or Benefits. Employee acknowledges and agrees that she has been paid by the Company all salary,\nbenefits or other compensation (including any accrued but unpaid vacation pay) to which Employee is entitled. Moreover, except as provided in this\nAgreement, Employee shall not be entitled to receive any other\ncompensation or benefits of any sort from the Company, its affiliates, or their officers, directors, employees, agents, insurance companies, attorneys,\nshareholders, or subsidiaries for, without limitation, salary, vacation, bonuses, stock, stock options, health care continuation coverage or any other\ncompensation or benefits.\nc) No Claims or Lawsuits. Employee represents that she has not filed or asserted any complaints, claims, or actions against the\nReleased Parties (defined below) with any state, federal, or local governmental agency or court or arbitrator and that she will not do so at any time\nhereafter, and that if any agency, court, or arbitrator assumes jurisdiction of any complaint, claim, or action against the Released Parties, Employee\nwill direct that agency, court, or arbitrator to withdraw from or dismiss with prejudice the matter;\nd) No Assistance. Employee understands that if this Agreement were not signed, she would have the right to voluntarily assist\nother individuals or entities in bringing claims against the Company. Employee further understands and agrees that she waives such right and she\nshall not aid or assist others in their pursuit of claims against the Company unless (1) Employee is required to provide such assistance pursuant to a\ncourt order, or (2) Employee’s assistance is sought by the EEOC or any other federal, state or local governmental entity.\ne) No Admission. This Agreement and compliance with this Agreement shall not be construed as an admission by the Company\nof any liability whatsoever, or as an admission by the Company of any violation of the rights of Employee or any person, or any violation of any\norder, law, statute, duty, or contract whatsoever against Employee or any person. The Company specifically denies and disclaims any liability to\nEmployee or any other person for any alleged violation of the rights of Employee or any person, or for any alleged violation of any order, law,\nstatute, duty, or contract on the part of the Company, its employees or agents or affiliated entities or their employees or agents.\n3. General and Special Release. As a material inducement for the Company to enter into this Agreement, Employee hereby forever\nreleases and discharges the Company, its subsidiary and affiliated corporations and entities, and their respective past and present officers, directors,\nmanagers, employees, agents, attorneys, successors and assigns (collectively, “Released Parties”) from any and all claims, charges, complaints, liens,\ndemands, causes of action, obligations, damages and liabilities, known or unknown, suspected or unsuspected, that Employee had, now has, or may\nhereafter claim to have against the Released Parties, arising out of or relating in any way to Employee’s hiring by, employment with, or separation\nfrom the Company or otherwise relating to any of the Released Parties from the beginning of time through the Effective Date. This release\nspecifically extends to, without limitation, claims or causes of action for wrongful termination, impairment of ability to compete in the open labor\nmarket, breach of an express or implied contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, fraud,\nmisrepresentation, defamation, slander, infliction of emotional distress, discrimination, harassment, retaliation, disability, loss of future earnings, and\nclaims under the California Constitution, the United States Constitution, and applicable state and federal fair employment laws, federal equal\nemployment opportunity laws, and federal and state labor statutes and regulations, including, but not limited to, the Civil Rights Act of 1964, as\namended, the Fair Labor Standards Act, as amended, the Worker Retraining and Notification Act of 1988,\n2\nas amended, the Americans With Disabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as amended, the Employee Retirement\nIncome Security Act of 1974, as amended, the Age Discrimination in Employment Act, as amended, and the California Fair Employment and\nHousing Act, as amended. However, nothing in this Agreement shall be construed as a release of the Company’s obligations under this Agreement.\nFurthermore, nothing in this Agreement shall affect the U.S. Equal Employment Opportunity Commission’s (“EEOC”) rights and responsibilities to\nenforce the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended, or any other applicable law, nor\nshall anything in this Agreement be construed as a basis for interfering with Employee’s protected right to file a charge with, or participate in an\ninvestigation or proceeding conducted by, the EEOC; or any other state, federal or local government entity; provided, however, if the EEOC or any\nother state, federal or local government entity commences an investigation on Employee’s behalf, Employee specifically waives and releases her\nright, if any, to recover any monetary or other benefits of any sort whatsoever arising from any such investigation, nor will she seek reinstatement to\nher former position with the Company.\nEmployee expressly waives all rights afforded by Section 1542 of the Civil Code of the State of California (“Section 1542”) with respect\nto Released Parties. Section 1542 states as follows:\nA GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT\nTO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE\nMATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.\nNotwithstanding the provisions of Section 1542, and for the purpose of implementing a full and complete release, Employee understands and agrees\nthat this Agreement is intended to include all claims, if any, which Employee may have and which Employee does not now know or suspect to exist\nin Employee’s favor against the Released Parties and that this Agreement extinguishes those claims.\n4. Review and Revocation Period.\na) Employee acknowledges that the Company has advised her that she may consult with an attorney of her choosing prior to\nsigning this Agreement and that she has no less than twenty-one (21) days during which to consider the provisions of this Agreement, although she\nmay sign and return it sooner;\nb) Employee has carefully read (or has had this Agreement read to her) and fully understands all of the provisions of this\nAgreement, which is written in a manner that she does understand;\n3\nc) Employee is, through this Agreement, releasing the Company from any and all claims she may have against the Company\narising before the execution of this Agreement;\nd) Employee knowingly and voluntarily agrees to all of the terms in this Agreement;\ne) Employee knowingly and voluntarily intends to be legally bound by this Agreement;\nf) Employee was advised and hereby is advised in writing to consider the terms of this Agreement and consult with an attorney of\nher choosing prior to signing this Agreement;\ng) Employee understands that rights or claims under the Age Discrimination in Employment Act of 1967 (29 U.S .C. §§ 621-634)\nthat may arise after the date this Agreement is signed are not waived;\nh) Employee understands that she has a period of seven (7) calendar days after the date that she signs this Agreement to revoke\nher acceptance of the terms of this Agreement by delivering a written notification in person, by messenger or by facsimile addressed to the Company\nat its offices in San Francisco, California (Attention: David Schellhase, General Counsel). Employee acknowledges and agrees that, in the event that\nEmployee revokes this Agreement, she will not be entitled to receive any of the benefits under this Agreement including, but not limited to, receipt\nof the Severance Payment.\n5. Confidentiality of Proprietary Information. Employee understands that, by virtue of Employee’s employment with the Company,\nEmployee has acquired or been exposed to Proprietary Information of the Company. “Proprietary Information” includes all ideas, information and\nmaterials, tangible or intangible, and know-how not generally known to the public, relating in any manner to the business of the Company, its\nproducts and services (including all trade secrets), its personnel (including its officers, directors, employees, and contractors), its clients, vendors and\nsuppliers and all others with whom it does business that Employee learned or acquired during Employee’s employment with the Company. Upon\nEmployee’s resignation on the Effective Date and thereafter, (a) Employee shall not use Proprietary Information, or disclose Proprietary Information\nto anyone, for any purpose, unless expressly requested to do so in writing by an authorized officer of the Company, (b) Employee shall not retain or\ntake with Employee any Proprietary Information in a Tangible Form (defined below), and (c) Employee shall immediately deliver to the Company\nany Proprietary Information in a Tangible Form that Employee may then or thereafter hold or control, as well as all other property, equipment,\ndocuments or things that Employee was issued or otherwise received or obtained during Employee’s employment with the Company. “Tangible\nForm” includes ideas, information or materials in written or graphic form, on a computer disc (including computer hard drives, floppy discs, network\nservers and compact discs) or other medium, or otherwise stored in or available through electronic, magnetic, videotape or other form.\n4\n6. Cooperation. Employee agrees, upon request by the Company, to consult with and provide assistance to the Company or its subsidiary\ncorporations and their affiliates and their counsel in the investigation, defense, institution, and/or maintenance of a criminal, civil, and/or\nadministrative action, proceeding, investigation or audit by or against the Company or its subsidiary corporations and their affiliates arising out of or\nrelating to matters in which Employee was involved or of which she had or acquired knowledge during her employment by the Company, its\naffiliates, and their predecessors, successors or assigns, or may become involved or acquire knowledge in her performance of duties including,\nwithout limitation, attendance as a witness at depositions, trials or other similar proceedings. The Company agrees that the assistance required of\nEmployee under this Section 6 will be reasonable both in nature and in the amount of time to be devoted by Employee.\n7. No Disparagement. The Parties agree to make no public or private statements that are disparaging of Employee, the Company or any\nof the Released Parties.\n8. Binding Effect. This Agreement shall be binding upon the Parties and their respective heirs, administrators, representatives, executors,\nsuccessors and assigns, and shall inure to the benefit of the parties and their respective heirs, administrators, representatives, executors, successors\nand assigns.\n9. Governing Law. This Agreement shall be governed by and construed and enforced pursuant to the laws of the State of California\napplicable to contracts made and entirely to be performed therein.\n10. Entire Agreement; Modification. This Agreement constitutes the entire understanding among the Parties and may not be modified without\nthe express written consent of the Parties. This Agreement supercedes all prior written and/or oral and all contemporaneous oral agreements,\nunderstandings and negotiations regarding the subject matter hereof. Notwithstanding the foregoing sentence, Employee agrees to continue to be\nbound by the terms and conditions of the Employee Inventions and Proprietary Rights Assignment Agreement executed by the parties dated as of\nFebruary 27, 2004.\n11. Binding Arbitration of Disputes. Except as necessary to specifically enforce or enjoin the breach of any of the terms of this Agreement (as\na provisional remedy in aid of arbitration) and except as provided by applicable law, the Parties agree that any dispute that may arise in connection\nwith, arising out of or relating to this Agreement, or any dispute that relates in any way, in whole or in part, to Employee’s hiring by, employment\nwith or separation from the Company, or any other dispute by and between the Parties, including the Released Parties, shall be submitted to binding\narbitration pursuant to the employment dispute resolution rules and procedures of the American Arbitration Association or such other rules and\nprocedures to which the Parties may otherwise agree. This arbitration obligation extends to any and all claims that may arise by and between the\nParties, including the Released Parties, and expressly extends to, without limitation, claims or causes of action for wrongful termination, impairment\nof ability to compete in the open labor market, breach of express or implied contract, breach of the covenant of good faith and fair dealing, breach of\nfiduciary duty, fraud, misrepresentation, defamation, slander, infliction of emotional distress, discrimination, harassment, disability, loss of future\n5\nearnings, and claims under the California Constitution, the United States Constitution, and applicable state and federal fair employment laws, federal\nequal employment opportunity laws, and federal and state labor statutes and regulations, including, but not limited to, the Civil Rights Act of 1964,\nas amended, the Fair Labor Standards Act, as amended, the Worker Retraining and Notification Act of 1988, as amended, the Americans With\nDisabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as amended, the Employee Retirement Income Security Act of 1974, as\namended, the Age Discrimination in Employment Act, as amended, and the California Fair Employment and Housing Act, as amended. Reasonable\ndiscovery shall be permitted in any arbitration and the arbitrator shall issue a written statement of decision that shall articulate the factual and legal\ngrounds for the decision and award. It is agreed that the arbitration fees and costs shall be paid by the Employer, unless otherwise permitted by law,\nin which case such fees and costs shall be evenly shared. The Employee shall pay for her own attorney fees unless reimbursement is otherwise\ndirected by the Arbitrator as part of a remedy authorized by statute.\n12. Voluntary Agreement; No Other Inducement. By signing this Agreement, Employee acknowledges and agrees that Employee enters into\nthis Agreement knowingly and voluntarily, has had sufficient opportunity to consult with legal counsel of Employee’s choice (and she in fact has\nconsulted with counsel in connection with the negotiation of and signing of this Agreement), and does not rely, and has not relied, on any fact,\nrepresentation, statement or assumption other than as specifically set forth in this Agreement.\nIN WITNESS WHEREOF, the Parties have signed this Agreement as of the dates set forth below.\nSALESFORCE.COM, INC.\n/s/ Kenneth I. Juster\nBy: Kenneth I. Juster\nIts: Executive Vice President, Legal Affairs and Corporate\nDevelopment\nDated: May 17, 2005\nEMPLOYEE\n/s/ Patricia Sueltz\nPatricia Sueltz\nDated: May 17, 2005\n6
+5829a2f85d47530983ab21b078f2747f.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 11 a2236490zex-99_d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”) by and between Jamba, Inc., a Delaware corporation, including on behalf of\nits affiliates (the “Company”), and FOCUS Brands Inc., a Delaware corporation, including on behalf of its subsidiaries (the “Participant” and\ntogether with the Company, each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto (the\n“Effective Date”).\n1.\nGeneral. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the\nParties, each Party (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Party (in its\ncapacity as a recipient of information hereunder, a “Recipient”) certain Evaluation Material (as defined in Section 2 below) in accordance with\nthe provisions of this Agreement, and hereby agrees to take or abstain from taking certain other actions as hereinafter set forth.\n2.\nDefinitions.\n(a) The term “affiliates” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled\nby, or under common control with such Person.\n(b) The term “Beneficial Ownership” when used with reference to a security shall have the meaning ascribed to it under the\nSecurities Exchange Act of 1934, as amended (the “1934 Act”), except that for purposes of this definition, the term security shall include any\noption, warrant, or convertible security regardless of exercise or conversion date, and also include any stock appreciation right, or similar right\nwith an exercise or conversion privilege or a settlement payment or mechanism at a price related to the security or with a value derived in whole\nor in part from the value of the security, whether or not such instrument or right shall be subject to settlement in securities or otherwise and any\nother direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of the security.\n(c) The term “Evaluation Material” means information (whether oral, written, electronic or otherwise) concerning Provider\nwhich has been or is furnished to Recipient or its Representatives (as defined below) by or on behalf of Provider in connection with Recipient’s\nevaluation of a Possible Transaction, including Provider ’s business, financial condition, operations, assets, liabilities, personnel and contracts,\nand includes all notes, analyses, compilations, studies, interpretations or other documents prepared by Recipient or its Representatives which\ncontain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not\ninclude information which (i) is or becomes generally available to the public other than as a result of a disclosure by Recipient or any of its\nRepresentatives in breach of this Agreement, (ii) was within a Recipient’s or its Representatives’ (on behalf of Recipient) possession, prior to its\nbeing furnished to Recipient or its Representatives by or on behalf of Provider or (iii) is or becomes available to Recipient or its Representatives\n(on behalf of Recipient) from a source other than the Provider or its Representatives, provided that the source of such information was not bound\nby a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, Provider with respect to such\ninformation or (iv) Recipient can reasonably show was independently developed by Recipient or Recipient’s Representatives without the use of\nor reference to any Evaluation Material provided by or on behalf of Provider or its Representatives.\n(d) The term “Representatives” shall include the directors, officers, employees, potential financing sources, partners, agents\nand advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of a Party who have a need to\nknow the Evaluation Material for purposes of evaluating a Possible Transaction, but only those of the foregoing\nwho actually receive Evaluation Material directly from or at the direction of such Party. For the avoidance of doubt, Roark Capital Acquisition\nLLC shall be a Representative of FOCUS Brands Inc. under this Agreement.\n(e) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3.\nUse of Evaluation Material. Each Recipient shall, and shall cause its Representatives to, (i) use the Evaluation Material solely\nfor the purpose of evaluating a Possible Transaction and (ii) keep the Evaluation Material confidential, and, subject to Section 5, will not, and\nwill cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such\ninformation may be disclosed to Recipient’s Representatives who need to know such information for the sole purpose of helping Recipient\nevaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s\nRepresentatives.\nThis Agreement does not grant Recipient or any of its Representatives any license to use Provider ’s Evaluation Material except as\nprovided herein. In addition, all proprietary and intellectual property rights in and to the Evaluation Material shall remain the sole property of\nProvider, and nothing in this Agreement shall be construed in any way to grant to Recipient or its Representatives or any other Person any\nexpress or implied option, license or other right, title or interest in or to any Evaluation Material, or to any intellectual property rights embodied\nin such Evaluation Material.\n4.\nNon-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other\nParty, such Party will not, and will cause its Representative not to, disclose to any other Person (i) that Evaluation Material has been exchanged\nbetween the Parties, (ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or any other\ntransaction between the Parties or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof) ; provided,\nhowever, that nothing contained herein shall be deemed to inhibit, impair or restrict the ability of Recipient or its Representatives from having\ndiscussions or negotiations with other persons relating to potential financing in connection with the Possible Transaction so long as each of such\nPersons agrees in writing to be bound by the terms of this Agreement applicable to Representatives.\n5.\nLegally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions,\ninterrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process)\nto disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall\nprovide Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so\nthat Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the\nabsence of a protective order or other remedy or the receipt of a waiver by Provider, a Recipient or any of its Representatives is nonetheless\nlegally compelled or required to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would be\nliable for contempt or suffer other censure or penalty, such Recipient or its respective Representatives may, without liability hereunder, disclose\nto such requiring Person only that portion of such Evaluation Material or any such facts which Recipient or its Representatives is legally\ncompelled or required to disclose, provided that Recipient and/or its Representatives cooperate with Provider to obtain an appropriate protective\norder or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the\nmaterial. Notwithstanding anything in this Agreement to the contrary, neither Recipient nor Recipient’s Representatives shall be required to\nprovide notice or seek consent to disclose any information in connection with a routine audit by, or blanket request from, a regulatory or\ngovernmental entity with jurisdiction over Recipient or Recipient’s Representatives, and not directed at the Company or the Possible Transaction;\nprovided that the Recipient or its Representatives, as applicable, inform any such authority of the confidential nature of the information disclosed\nto them and to keep such information confidential in accordance with such authority’s policies or procedures.\n6.\n“Click Through” Agreements. The terms of this Agreement shall control over any additional purported confidentiality\nrequirements imposed by an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which\nRecipient or its Representatives are granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of\nsuch an offering memorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such\nadditional confidentiality conditions, it being understood and agreed that Recipient’s and its Representatives’ confidentiality obligations with\nrespect to the Evaluation Material are exclusively governed by this Agreement and may not be reduced or enlarged except by an agreement\nexecuted by the Parties hereto in traditional written format.\n7.\nReturn or Destruction of Evaluation Material. At any time upon the request of a Provider for any reason, a Recipient will, and\nwill direct its Representatives to, promptly, but not later than 10 business days, after receipt of such notice or request, destroy or return (at\nRecipient’s option) all Evaluation Material and all documents that incorporate Evaluation Material, and no copy or extract thereof (including\nelectronic copies) shall be retained, except that Recipient and its Representatives may retain one copy to be kept confidential and used solely for\narchival, legal, and compliance purposes. Recipient shall provide to the Provider written confirmation of destruction signed by an authorized\nrepresentative of Recipient. Notwithstanding the return or destruction of the Evaluation Material, Recipient and its Representatives will continue\nto be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material.\n8.\nNo Solicitation. Recipient will not, within eighteen months from the date of this Agreement, directly or indirectly solicit the\nemployment or consulting services of or employ or engage as a consultant any of the senior or key employees of the Provider or any of its\nsubsidiaries nor any other employee of the Provider or any if its subsidiaries with whom Recipient has had direct contact in connection with its\nevaluation of a Possible Transaction or of whom it has become aware as a result of its receipt of any Evaluation Material, so long as they are\nemployed by the Provider or any of its subsidiaries and for two months thereafter. For the purposes of clarification, the mere receipt of\nProvider ’s employee list by Recipient shall not be considered a solicitation of or a direct contact with such employees pursuant to this section. A\nRecipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any particular individual or the employees of\nthe Provider or its subsidiaries generally or (ii) engaging any recruiting firm or similar organization to identify or solicit individuals for\nemployment on behalf of such Recipient (and soliciting any person identified by any such recruiting firm or organization) so long as such\nRecipient does not identify either Provider or any of the individuals employed by Provider to be solicited by such recruiting firm or\norganization. The provisions of this Section 8 shall terminate and be of no further effect upon the acquisition of such Provider by a third party.\n9.\nStandstill. Participant does not own any of the capital stock of the Company as of the Effective Date. Participant agrees that,\nfor a period of one year after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the Company, neither\nit nor (1) any of its majority-owned subsidiaries, (2) its Representatives (acting on its behalf), or (3) Roark Capital Acquisition LLC or its\naffiliates who receive Evaluation Material directly from Roark Capital Acquisition LLC or Participant or at their direction, will in any manner,\ndirectly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any\nother Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i)\nany acquisition of any securities (or any acquisition of Beneficial Ownership thereof) or assets of the Company or\nany of its subsidiaries,\n(ii)\nany tender or exchange offer, merger or other business combination involving the Company or any of its\nsubsidiaries,\n(iii)\nany recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the\nCompany or any of its subsidiaries, or\n(iv)\nany “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange\nCommission) or consents to vote any voting securities of the Company;\n(b) form, join or in any way participate in a “group” (as defined under the Act) with respect to the securities of the Company;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without\ncondition), any extraordinary transaction involving the Company or its securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or\npolicies of the Company;\n(e) take any action which may reasonably be expected to force the Company to make a public announcement regarding any of\nthe types of matters set forth in (a) above; or\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nParticipant also agrees, and will cause its Representatives to agree, during the Standstill Period, not to request the Company (or its directors,\nofficers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 9 (including this sentence).\nNotwithstanding anything in this Section 9 to the contrary, if, at any time during the Standstill Period, a public announcement is made\nby the Company or any other Person (other than Participant or its Representatives) that a third party (other than Participant or its\nRepresentatives) intends to acquire at least twenty percent (20%) of the outstanding capital stock of the Company, voting control or a material\npart of the Company’s assets (by way of a tender offer, exchange offer, proxy contest, acquisition or other similar transaction), or if a definitive\nagreement is executed by the Company with a third party relating to such an acquisition of capital stock or assets, the restrictions set forth in this\nSection 9 shall immediately terminate and cease to be of any further effect on Participant.\nParticipant further agrees, and will cause its Representatives to agree, that unless otherwise directed by the Company in writing (i) all\ncommunications with the Company regarding a Possible Transaction, (ii) requests for additional information, facility tours, or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to a Possible Transaction, will be submitted or\ndirected by Participant or its Representatives only to David Pace, the Company’s Chief Executive Officer, or a person or persons designated in\nwriting by David Pace. Further, except upon the Company’s prior written consent, neither Participant nor its Representatives acting on behalf of\nParticipant involved with a Possible Transaction or who have received Evaluation Material will, directly or indirectly, contact any stockholder,\ndirector, officer, employee or agent of the Company, or any customer or supplier of the Company, regarding the Evaluation Material or a Possible\nTransaction. Nothing contained herein shall prevent Participant or its Representatives from maintaining any contacts in the ordinary course of\nbusiness unrelated to a Possible Transaction or from conducting consumer surveys or other due diligence, in each case, without disclosing or\nrelying on any Evaluation Material.\n10.\nMaintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each\nParty understands and agrees that the Parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual\nunderstanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of\nsuch material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation\nMaterial that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled\nto such protection under these privileges, this Agreement, and under the joint defense doctrine.\n11.\nCompliance with Securities Laws. Each Recipient acknowledges that the Evaluation Material may include material nonpublic\ninformation (within the meaning of the securities laws of the United States) with respect to Provider. Each Recipient agrees not to use and will\ncause its Representatives to agree not to use any Evaluation Material of Provider in violation of applicable securities laws.\n12.\nNot a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible\nTransaction exists between the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered,\nand each Party hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible\nTransaction unless and until both Parties shall have entered into a final definitive agreement for a Possible Transaction. Each Party also agrees\nthat, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will be under\nany legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters\nspecifically agreed to herein. Neither Party is under any obligation to accept any proposal regarding a Possible Transaction and either Party may\nterminate discussions and negotiations with the other Party at any time.\n13.\nNo Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither\nProvider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation\nMaterial furnished by or on behalf of Provider and shall have no liability to Recipient, its Representatives or any other Person relating to or\nresulting from the use of the Evaluation Material furnished to a Recipient or its respective Representatives or any errors therein or omissions\ntherefrom. As to the information delivered to Recipient, Provider will only be liable for those representations or warranties which are made in a\nfinal definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be\nspecified therein. Nothing in this Agreement shall be construed as obligating Provider to provide, or to continue to provide, any information to\nany Person.\n14.\nModifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by\nwritten consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No\nfailure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n15.\nRemedies. Each Party understands and agrees that money damages may not be a sufficient remedy for any breach of this\nAgreement by either Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to seek\nequitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be\ndeemed to be the exclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other remedies available at law\nor equity to the Party against which such breach is committed.\n16.\nLegal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either\nParty or its Representatives has breached this Agreement, then the Party which is, or the Party whose Representatives are, determined to have so\nbreached shall be liable and pay to the other Party the reasonable legal fees and costs incurred by the other Party in connection with such\nlitigation, including any appeal therefrom.\n17.\nGoverning Law. This Agreement is for the benefit of each Party and shall be governed by and construed in accordance with\nthe laws of the State of Delaware applicable to agreements made and to be performed entirely within such state.\n18.\nSeverability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent\njurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement\nshall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be\nunenforceable by reason of its extent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority\nmaking that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and\nenforce them in their modified form for all purposes of this Agreement.\n19.\nConstruction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or\nquestion of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of\nproof shall arise favoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n20.\nTerm. This Agreement, and all obligations and other provisions hereunder, shall terminate two years after the date of this\nAgreement.\n21.\nEntire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and\nsupersedes all prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n22.\nCounterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which\ntogether shall be deemed to constitute a single instrument.\n23.\nConsent to Representation. This agreement also constitutes notice to Participant that the Company has engaged DLA Piper\nLLP (US) and its affiliated firms as its legal counsel in connection with the Possible Transaction, and Participant hereby (i) consents to the\ncontinued representation of the Company by DLA Piper LLP (US) and its affiliated firms in relation to the Possible Transaction notwithstanding\nthe fact that DLA Piper LLP (US) may have represented, and may currently or in the future represent, Participant and/or any of its respective\naffiliates with respect to unrelated matters and (ii) waive any actual or alleged conflict and actual or alleged violation of ethical or comparable\nrules applicable to DLA Piper LLP (US) and its affiliated firms that may arise from its representation of the Company in connection with the\nPossible Transaction, including but not limited to representing the Company against Participant and/or its affiliates in litigation, arbitration, or\nmediation in connection therewith. Notwithstanding the foregoing, in the event of any dispute (including litigation, arbitration, or mediation)\nbetween the Parties related to this Agreement, DLA Piper LLP (US) and its affiliated firms will not represent either Party. In addition, Participant\nhereby acknowledges that the consent and waiver under this paragraph is voluntary and informed, and that Participant has obtained independent\nlegal advice with respect to this consent and waiver. Participant further agrees that they are each aware of the extent of their respective\nrelationships, if any, with DLA Piper LLP (US) and its affiliate firms, and do not require additional information from DLA Piper LLP (US) in\norder to understand the nature of this consent. Each of DLA Piper LLP (US) and its affiliated firms are an express third party beneficiary of this\nparagraph.\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative\nas of the date written below.\nJAMBA, INC.\nFOCUS BRANDS INC.\nBy:\n/s/ David Pace\nBy: /s/ Sarah Powell\nName: Dave Pace\nName: Sarah Powell\nTitle:\nCEO\nTitle: EVP, General Counsel & Secretary\nDate: March 30, 2018\nDate: March 29, 2018	EX-99.(D)(2) 11 a2236490zex-99_d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”) by and between Jamba, Inc., a Delaware corporation, including on behalf of\nits affiliates (the “Company”), and FOCUS Brands Inc., a Delaware corporation, including on behalf of its subsidiaries (the “Participant” and\ntogether with the Company, each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto (the\n“Effective Date”).\n1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the\nParties, each Party (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Party (in its\ncapacity as a recipient of information hereunder, a “Recipient”) certain Evaluation Material (as defined in Section 2 below) in accordance with\nthe provisions of this Agreement, and hereby agrees to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term “dffiliates” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled\nby, or under common control with such Person.\n(b) The term “Beneficial Ownership” when used with reference to a security shall have the meaning ascribed to it under the\nSecurities Exchange Act of 1934, as amended (the “1934 Act”), except that for purposes of this definition, the term security shall include any\noption, warrant, or convertible security regardless of exercise or conversion date, and also include any stock appreciation right, or similar right\nwith an exercise or conversion privilege or a settlement payment or mechanism at a price related to the security or with a value derived in whole\nor in part from the value of the security, whether or not such instrument or right shall be subject to settlement in securities or otherwise and any\nother direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of the security.\n(c) The term “Evaluation Material” means information (whether oral, written, electronic or otherwise) concerning Provider\nwhich has been or is furnished to Recipient or its Representatives (as defined below) by or on behalf of Provider in connection with Recipient’s\nevaluation of a Possible Transaction, including Provider’s business, financial condition, operations, assets, liabilities, personnel and contracts,\nand includes all notes, analyses, compilations, studies, interpretations or other documents prepared by Recipient or its Representatives which\ncontain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not\ninclude information which (i) is or becomes generally available to the public other than as a result of a disclosure by Recipient or any of its\nRepresentatives in breach of this Agreement, (ii) was within a Recipient’s or its Representatives’ (on behalf of Recipient) possession, prior to its\nbeing furnished to Recipient or its Representatives by or on behalf of Provider or (iii) is or becomes available to Recipient or its Representatives\n(on behalf of Recipient) from a source other than the Provider or its Representatives, provided that the source of such information was not bound\nby a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, Provider with respect to such\ninformation or (iv) Recipient can reasonably show was independently developed by Recipient or Recipient’s Representatives without the use of\nor reference to any Evaluation Material provided by or on behalf of Provider or its Representatives.\n(d) The term “Representatives” shall include the directors, officers, employees, potential financing sources, partners, agents\nand advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of a Party who have a need to\nknow the Evaluation Material for purposes of evaluating a Possible Transaction, but only those of the foregoing\n \nwho actually receive Evaluation Material directly from or at the direction of such Party. For the avoidance of doubt, Roark Capital Acquisition\nLLC shall be a Representative of FOCUS Brands Inc. under this Agreement.\n(e) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. Each Recipient shall, and shall cause its Representatives to, (i) use the Evaluation Material solely\nfor the purpose of evaluating a Possible Transaction and (ii) keep the Evaluation Material confidential, and, subject to Section 5, will not, and\nwill cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such\ninformation may be disclosed to Recipient’s Representatives who need to know such information for the sole purpose of helping Recipient\nevaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s\nRepresentatives.\nThis Agreement does not grant Recipient or any of its Representatives any license to use Provider’s Evaluation Material except as\nprovided herein. In addition, all proprietary and intellectual property rights in and to the Evaluation Material shall remain the sole property of\nProvider, and nothing in this Agreement shall be construed in any way to grant to Recipient or its Representatives or any other Person any\nexpress or implied option, license or other right, title or interest in or to any Evaluation Material, or to any intellectual property rights embodied\nin such Evaluation Material.\n4. Non-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other\nParty, such Party will not, and will cause its Representative not to, disclose to any other Person (i) that Evaluation Material has been exchanged\nbetween the Parties, (ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or any other\ntransaction between the Parties or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof) ; provided,\nhowever, that nothing contained herein shall be deemed to inhibit, impair or restrict the ability of Recipient or its Representatives from having\ndiscussions or negotiations with other persons relating to potential financing in connection with the Possible Transaction so long as each of such\nPersons agrees in writing to be bound by the terms of this Agreement applicable to Representatives.\n5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions,\ninterrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process)\nto disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall\nprovide Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so\nthat Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the\nabsence of a protective order or other remedy or the receipt of a waiver by Provider, a Recipient or any of its Representatives is nonetheless\nlegally compelled or required to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would be\nliable for contempt or suffer other censure or penalty, such Recipient or its respective Representatives may, without liability hereunder, disclose\nto such requiring Person only that portion of such Evaluation Material or any such facts which Recipient or its Representatives is legally\ncompelled or required to disclose, provided that Recipient and/or its Representatives cooperate with Provider to obtain an appropriate protective\norder or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the\nmaterial. Notwithstanding anything in this Agreement to the contrary, neither Recipient nor Recipient’s Representatives shall be required to\nprovide notice or seek consent to disclose any information in connection with a routine audit by, or blanket request from, a regulatory or\n \ngovernmental entity with jurisdiction over Recipient or Recipient’s Representatives, and not directed at the Company or the Possible Transaction;\nprovided that the Recipient or its Representatives, as applicable, inform any such authority of the confidential nature of the information disclosed\nto them and to keep such information confidential in accordance with such authority’s policies or procedures.\n6. “Click Through” Agreements. The terms of this Agreement shall control over any additional purported confidentiality\nrequirements imposed by an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which\nRecipient or its Representatives are granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of\nsuch an offering memorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such\nadditional confidentiality conditions, it being understood and agreed that Recipient’s and its Representatives’ confidentiality obligations with\nrespect to the Evaluation Material are exclusively governed by this Agreement and may not be reduced or enlarged except by an agreement\nexecuted by the Parties hereto in traditional written format.\n \n7. Return or Destruction of Evaluation Material. At any time upon the request of a Provider for any reason, a Recipient will, and\nwill direct its Representatives to, promptly, but not later than 10 business days, after receipt of such notice or request, destroy or return (at\nRecipient’s option) all Evaluation Material and all documents that incorporate Evaluation Material, and no copy or extract thereof (including\nelectronic copies) shall be retained, except that Recipient and its Representatives may retain one copy to be kept confidential and used solely for\narchival, legal, and compliance purposes. Recipient shall provide to the Provider written confirmation of destruction signed by an authorized\nrepresentative of Recipient. Notwithstanding the return or destruction of the Evaluation Material, Recipient and its Representatives will continue\nto be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material.\n8. No Solicitation. Recipient will not, within eighteen months from the date of this Agreement, directly or indirectly solicit the\nemployment or consulting services of or employ or engage as a consultant any of the senior or key employees of the Provider or any of its\nsubsidiaries nor any other employee of the Provider or any if its subsidiaries with whom Recipient has had direct contact in connection with its\nevaluation of a Possible Transaction or of whom it has become aware as a result of its receipt of any Evaluation Material, so long as they are\nemployed by the Provider or any of its subsidiaries and for two months thereafter. For the purposes of clarification, the mere receipt of\nProvider’s employee list by Recipient shall not be considered a solicitation of or a direct contact with such employees pursuant to this section. A\nRecipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any particular individual or the employees of\nthe Provider or its subsidiaries generally or (ii) engaging any recruiting firm or similar organization to identify or solicit individuals for\nemployment on behalf of such Recipient (and soliciting any person identified by any such recruiting firm or organization) so long as such\nRecipient does not identify either Provider or any of the individuals employed by Provider to be solicited by such recruiting firm or\norganization. The provisions of this Section 8 shall terminate and be of no further effect upon the acquisition of such Provider by a third party.\n9. Standstill. Participant does not own any of the capital stock of the Company as of the Effective Date. Participant agrees that,\nfor a period of one year after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the Company, neither\nit nor (1) any of its majority-owned subsidiaries, (2) its Representatives (acting on its behalf), or (3) Roark Capital Acquisition LLC or its\naffiliates who receive Evaluation Material directly from Roark Capital Acquisition LLC or Participant or at their direction, will in any manner,\ndirectly or indirectly:\n \n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any\nother Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n@) any acquisition of any securities (or any acquisition of Beneficial Ownership thereof) or assets of the Company or\nany of its subsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving the Company or any of its\nsubsidiaries,\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the\nCompany or any of its subsidiaries, or\n@iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange\nCommission) or consents to vote any voting securities of the Company;\n(b) form, join or in any way participate in a “group” (as defined under the Act) with respect to the securities of the Company;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without\ncondition), any extraordinary transaction involving the Company or its securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or\npolicies of the Company;\n(e) take any action which may reasonably be expected to force the Company to make a public announcement regarding any of\nthe types of matters set forth in (a) above; or\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nParticipant also agrees, and will cause its Representatives to agree, during the Standstill Period, not to request the Company (or its directors,\nofficers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 9 (including this sentence).\nNotwithstanding anything in this Section 9 to the contrary, if, at any time during the Standstill Period, a public announcement is made\nby the Company or any other Person (other than Participant or its Representatives) that a third party (other than Participant or its\nRepresentatives) intends to acquire at least twenty percent (20%) of the outstanding capital stock of the Company, voting control or a material\npart of the Company’s assets (by way of a tender offer, exchange offer, proxy contest, acquisition or other similar transaction), or if a definitive\nagreement is executed by the Company with a third party relating to such an acquisition of capital stock or assets, the restrictions set forth in this\nSection 9 shall immediately terminate and cease to be of any further effect on Participant.\nParticipant further agrees, and will cause its Representatives to agree, that unless otherwise directed by the Company in writing (i) all\ncommunications with the Company regarding a Possible Transaction, (ii) requests for additional information, facility tours, or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to a Possible Transaction, will be submitted or\n \ndirected by Participant or its Representatives only to David Pace, the Company’s Chief Executive Officer, or a person or persons designated in\nwriting by David Pace. Further, except upon the Company’s prior written consent, neither Participant nor its Representatives acting on behalf of\nParticipant involved with a Possible Transaction or who have received Evaluation Material will, directly or indirectly, contact any stockholder,\ndirector, officer, employee or agent of the Company, or any customer or supplier of the Company, regarding the Evaluation Material or a Possible\nTransaction. Nothing contained herein shall prevent Participant or its Representatives from maintaining any contacts in the ordinary course of\nbusiness unrelated to a Possible Transaction or from conducting consumer surveys or other due diligence, in each case, without disclosing or\nrelying on any Evaluation Material.\n10. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each\nParty understands and agrees that the Parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual\nunderstanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of\nsuch material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation\nMaterial that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled\nto such protection under these privileges, this Agreement, and under the joint defense doctrine.\n11. Compliance with Securities Laws. Each Recipient acknowledges that the Evaluation Material may include material nonpublic\ninformation (within the meaning of the securities laws of the United States) with respect to Provider. Each Recipient agrees not to use and will\ncause its Representatives to agree not to use any Evaluation Material of Provider in violation of applicable securities laws.\n12. Not a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible\nTransaction exists between the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered,\nand each Party hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible\nTransaction unless and until both Parties shall have entered into a final definitive agreement for a Possible Transaction. Each Party also agrees\nthat, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will be under\nany legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters\nspecifically agreed to herein. Neither Party is under any obligation to accept any proposal regarding a Possible Transaction and either Party may\nterminate discussions and negotiations with the other Party at any time.\n13. No Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither\nProvider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation\nMaterial furnished by or on behalf of Provider and shall have no liability to Recipient, its Representatives or any other Person relating to or\nresulting from the use of the Evaluation Material furnished to a Recipient or its respective Representatives or any errors therein or omissions\ntherefrom. As to the information delivered to Recipient, Provider will only be liable for those representations or warranties which are made in a\nfinal definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be\nspecified therein. Nothing in this Agreement shall be construed as obligating Provider to provide, or to continue to provide, any information to\nany Person.\n \n14. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by\nwritten consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No\nfailure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n15. Remedies. Each Party understands and agrees that money damages may not be a sufficient remedy for any breach of this\nAgreement by either Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to seek\nequitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be\ndeemed to be the exclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other remedies available at law\nor equity to the Party against which such breach is committed.\n16. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either\nParty or its Representatives has breached this Agreement, then the Party which is, or the Party whose Representatives are, determined to have so\nbreached shall be liable and pay to the other Party the reasonable legal fees and costs incurred by the other Party in connection with such\nlitigation, including any appeal therefrom.\n17. Governing Law. This Agreement is for the benefit of each Party and shall be governed by and construed in accordance with\nthe laws of the State of Delaware applicable to agreements made and to be performed entirely within such state.\n18. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent\njurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement\nshall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be\nunenforceable by reason of its extent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority\nmaking that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and\nenforce them in their modified form for all purposes of this Agreement.\n19. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or\nquestion of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of\nproof shall arise favoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n20. Term. This Agreement, and all obligations and other provisions hereunder, shall terminate two years after the date of this\nAgreement.\n21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and\nsupersedes all prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n22. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which\ntogether shall be deemed to constitute a single instrument.\n \n23. Consent to Representation. This agreement also constitutes notice to Participant that the Company has engaged DL A Piper\nLLP (US) and its affiliated firms as its legal counsel in connection with the Possible Transaction, and Participant hereby (i) consents to the\ncontinued representation of the Company by DLA Piper LLP (US) and its affiliated firms in relation to the Possible Transaction notwithstanding\nthe fact that DLA Piper LLP (US) may have represented, and may currently or in the future represent, Participant and/or any of its respective\naffiliates with respect to unrelated matters and (ii) waive any actual or alleged conflict and actual or alleged violation of ethical or comparable\nrules applicable to DLA Piper LLP (US) and its affiliated firms that may arise from its representation of the Company in connection with the\nPossible Transaction, including but not limited to representing the Company against Participant and/or its affiliates in litigation, arbitration, or\nmediation in connection therewith. Notwithstanding the foregoing, in the event of any dispute (including litigation, arbitration, or mediation)\nbetween the Parties related to this Agreement, DLA Piper LLP (US) and its affiliated firms will not represent either Party. In addition, Participant\nhereby acknowledges that the consent and waiver under this paragraph is voluntary and informed, and that Participant has obtained independent\nlegal advice with respect to this consent and waiver. Participant further agrees that they are each aware of the extent of their respective\nrelationships, if any, with DLA Piper LLP (US) and its affiliate firms, and do not require additional information from DL A Piper LLP (US) in\norder to understand the nature of this consent. Each of DL A Piper LLP (US) and its affiliated firms are an express third party beneficiary of this\nparagraph.\n \nIN WITNESS WHEREOQF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative\nas of the date written below.\nJAMBA, INC. FOCUS BRANDS INC.\nBy: /s/ David Pace By: /s/ Sarah Powell\nName: Dave Pace Name: Sarah Powell\nTitle: CEO Title:  EVP, General Counsel & Secretary\nDate:  March 30, 2018 Date: March 29, 2018\n	EX-99.(D)(2) 11 a2236490zex-99_d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this "Agreement") by and between Jamba, Inc., a Delaware corporation, including on behalf of\nits affiliates (the "Company"), and FOCUS Brands Inc., a Delaware corporation, including on behalf of its subsidiaries (the "Participant" and\ntogether with the Company, each a "Party" and collectively, the "Parties"), is dated as of the latest date set forth on the signature page hereto (the\n"Effective Date").\n1.\nGeneral. In connection with the consideration of a possible negotiated transaction (a "Possible Transaction") between the\nParties, each Party (in its capacity as a provider of information hereunder, a "Provider") is prepared to make available to the other Party (in its\ncapacity as a recipient of information hereunder, a "Recipient") certain Evaluation Material (as defined in Section 2 below) in accordance with\nthe provisions of this Agreement, and hereby agrees to take or abstain from taking certain other actions as hereinafter set forth.\n2.\nDefinitions.\n(a) The term "affiliates" shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled\nby, or under common control with such Person.\n(b) The term "Beneficial Ownership" when used with reference to a security shall have the meaning ascribed to it under the\nSecurities Exchange Act of 1934, as amended (the "1934 Act"), except that for purposes of this definition, the term security shall include any\noption,\nwarrant, or convertible security regardless of exercise or conversion date, and also include any stock appreciation right, or similar right\nwith an exercise or conversion privilege or a settlement payment or mechanism at a price related to the security or with a value derived in whole\nor in part from the value of the security, whether or not such instrument or right shall be subject to settlement in securities or otherwise and any\nother direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of the security.\n(c) The term "Evaluation Material" means information (whether oral, written, electronic or otherwise) concerning Provider\nwhich\nhas\nbeen\nor\nis\nfurnished\nto\nRecipient\nor\nits\nRepresentatives\n(as\ndefined\nbelow)\nby\nor\non\nbehalf\nof\nProvider\nin\nconnection\nwith\nRecipient's\nevaluation of a Possible Transaction, including Provider's business, financial condition, operations, assets, liabilities, personnel and contracts,\nand includes all notes, analyses, compilations, studies, interpretations or other documents prepared by Recipient or its Representatives which\ncontain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not\ninclude information which (i) is or becomes generally available to the public other than as a result of a disclosure by Recipient or any of its\nRepresentatives in breach of this Agreement, (ii) was within a Recipient's or its Representatives' (on behalf of Recipient) possession, prior to its\nbeing furnished to Recipient or its Representatives by or on behalf of Provider or (iii) is or becomes available to Recipient or its Representatives\n(on behalf of Recipient) from a source other than the Provider or its Representatives, provided that the source of such information was not bound\nby a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, Provider with respect to such\ninformation or (iv) Recipient can reasonably show was independently developed by Recipient or Recipient's Representatives without the use\nof\nor reference to any Evaluation Material provided by or on behalf of Provider or its Representatives.\n(d) The term "Representatives" shall include the directors, officers, employees, potential financing sources, partners, agents\nand advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of a Party who have a need to\nknow the Evaluation Material for purposes of evaluating a Possible Transaction, but only those of the foregoing\nwho actually receive Evaluation Material directly from or at the direction of such Party. For the avoidance of doubt, Roark Capital Acquisition\nLLC shall be a Representative of FOCUS Brands Inc. under this Agreement.\n(e) The term "Person" includes the media and any corporation, partnership, group, individual or other entity.\n3.\nUse of Evaluation Material. Each Recipient shall, and shall cause its Representatives to, (i) use the Evaluation Material solely\nfor the purpose of evaluating a Possible Transaction and (ii) keep the Evaluation Material confidential, and, subject to Section 5, will not, and\nwill cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such\ninformation may be disclosed to Recipient's Representatives who need to know such information for the sole purpose of helping Recipient\nevaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient's\nRepresentatives.\nThis Agreement does not grant Recipient or any of its Representatives any license to use Provider's Evaluation Material except as\nprovided herein. In addition, all proprietary and intellectual property rights in and to the Evaluation Material shall remain the sole property\nof\nProvider, and nothing in this Agreement shall be construed in any way to grant to Recipient or its Representatives or any other Person any\nexpress or implied option, license or other right, title or interest in or to any Evaluation Material, or to any intellectual property rights embodied\nin such Evaluation Material.\n4.\nNon-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other\nParty, such Party will not, and will cause its Representative not to, disclose to any other Person (i) that Evaluation Material has been exchanged\nbetween the Parties, (ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or any other\ntransaction between the Parties or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof) provided,\nhowever, that nothing contained herein shall be deemed to inhibit, impair or restrict the ability of Recipient or its Representatives from having\ndiscussions or negotiations with other persons relating to potential financing in connection with the Possible Transaction so long as each of such\nPersons agrees in writing to be bound by the terms of this Agreement applicable to Representatives.\n5.\nLegally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions,\ninterrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process)\nto disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall\nprovide Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed\nso\nthat\nProvider\nmay\nseek\na\nprotective\norder\nor\nother\nappropriate\nremedy\nand/or\nwaive\ncompliance\nwith\nthe\nprovisions\nof\nthis\nAgreement.\nIf,\nin\nthe\nabsence of a protective order or other remedy or the receipt of a waiver by Provider, a Recipient or any of its Representatives is nonetheless\nlegally compelled or required to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would be\nliable for contempt or suffer other censure or penalty, such Recipient or its respective Representatives may, without liability hereunder, disclose\nto\nsuch requiring Person only that portion of such Evaluation Material or any such facts which Recipient or its Representatives is legally\ncompelled or required to disclose, provided that Recipient and/or its Representatives cooperate with Provider to obtain an appropriate protective\norder or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving\nthe\nmaterial. Notwithstanding anything in this Agreement to the contrary, neither Recipient nor Recipient's Representatives shall be required to\nprovide notice or seek consent to disclose any information in connection with a routine audit by, or blanket request from, a regulatory or\ngovernmental entity with jurisdiction over Recipient or Recipient's Representatives, and not directed at the Company or the Possible Transaction;\nprovided that the Recipient or its Representatives, as applicable, inform any such authority of the confidential nature of the information disclosed\nto them and to keep such information confidential in accordance with such authority's policies or procedures.\n6.\n"Click Through" Agreements. The terms of this Agreement shall control over any additional purported confidentiality\nrequirements imposed by an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which\nRecipient or its Representatives are granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of\nsuch\nan\noffering\nmemorandum\nor\nsubmission\nof\nan\nelectronic\nsignature,\n"clicking"\non\nan\n"I\nAgree"\nicon\nor\nother\nindication\nof\nassent\nto\nsuch\nadditional confidentiality conditions, it being understood and agreed that Recipient's and its Representatives' confidentiality obligations with\nrespect to the Evaluation Material are exclusively governed by this Agreement and may not be reduced or enlarged except by an agreement\nexecuted by the Parties hereto in traditional written format.\n7.\nReturn or Destruction of Evaluation Material. At any time upon the request of a Provider for any reason, a Recipient will, and\nwill direct its Representatives to, promptly, but not later than 10 business days, after receipt of such notice or request, destroy or return (at\nRecipient's option) all Evaluation Material and all documents that incorporate Evaluation Material, and no copy or extract thereof (including\nelectronic copies) shall be retained, except that Recipient and its Representatives may retain one copy to be kept confidential and used solely for\narchival,\nlegal,\nand\ncompliance\npurposes.\nRecipient\nshall\nprovide\nto\nthe\nProvider\nwritten\nconfirmation\nof\ndestruction\nsigned\nby\nan\nauthorized\nrepresentative of Recipient. Notwithstanding the return or destruction of the Evaluation Material, Recipient and its Representatives will continue\nto be bound by such Recipient's obligations hereunder with respect to such Evaluation Material.\n8.\nNo Solicitation. Recipient will not, within eighteen months from the date of this Agreement, directly or indirectly solicit the\nemployment or consulting services of or employ or engage as a consultant any of the senior or key employees of the Provider or any of its\nsubsidiaries nor any other employee of the Provider or any if its subsidiaries with whom Recipient has had direct contact in connection with\nits\nevaluation of a Possible Transaction or of whom it has become aware as a result of its receipt of any Evaluation Material, so long as they are\nemployed by the Provider or any of its subsidiaries and for two months thereafter. For the purposes of clarification, the mere receipt of\nProvider's employee list by Recipient shall not be considered a solicitation of or a direct contact with such employees pursuant to this section.\nA\nRecipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any particular individual or the employees of\nthe Provider or its subsidiaries generally or (ii) engaging any recruiting firm or similar organization to identify or solicit individuals for\nemployment on behalf of such Recipient (and soliciting any person identified by any such recruiting firm or organization) so long as such\nRecipient does not identify either Provider or any of the individuals employed by Provider to be solicited by such recruiting firm or\norganization. The provisions of this Section 8 shall terminate and be of no further effect upon the acquisition of such Provider by a third party.\n9.\nStandstill. Participant does not own any of the capital stock of the Company as of the Effective Date. Participant agrees that,\nfor a period of one year after the date of this Agreement (the "Standstill Period"), unless specifically invited in writing by the Company, neither\nit nor (1) any of its majority-owned subsidiaries, (2) its Representatives (acting on its behalf), or (3) Roark Capital Acquisition LLC or its\naffiliates who receive Evaluation Material directly from Roark Capital Acquisition LLC or Participant or at their direction, will in any manner,\ndirectly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any\nother Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i)\nany acquisition of any securities (or any acquisition of Beneficial Ownership thereof) or assets of the Company or\nany of its subsidiaries,\n(ii)\nany tender or exchange offer, merger or other business combination involving the Company or any of\nits\nsubsidiaries,\n(iii)\nany recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the\nCompany or any of its subsidiaries, or\n(iv)\nany "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange\nCommission) or consents to vote any voting securities of the Company;\n(b) form, join or in any way participate in a "group" (as defined under the Act) with respect to the securities of the Company;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without\ncondition), any extraordinary transaction involving the Company or its securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or\npolicies of the Company;\n(e) take any action which may reasonably be expected to force the Company to make a public announcement regarding any of\nthe types of matters set forth in (a) above; or\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nParticipant also agrees, and will cause its Representatives to agree, during the Standstill Period, not to request the Company (or its directors,\nofficers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 9 (including this sentence).\nNotwithstanding anything in this Section 9 to the contrary, if, at any time during the Standstill Period, a public announcement is made\nby the Company or any other Person (other than Participant or its Representatives) that a third party (other than Participant or its\nRepresentatives) intends to acquire at least twenty percent (20%) of the outstanding capita stock of the Company, voting control or a material\npart of the Company's assets (by way of a tender offer, exchange offer, proxy contest, acquisition or other similar transaction), or if a definitive\nagreement is executed by the Company with a third party relating to such an acquisition of capital stock or assets, the restrictions set forth in this\nSection 9 shall immediately terminate and cease to be of any further effect on Participant.\nParticipant further agrees, and will cause its Representatives to agree, that unless otherwise directed by the Company in writing (i) all\ncommunications with the Company regarding a Possible Transaction, (ii) requests for additional information, facility tours, or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to a Possible Transaction, will be submitted or\ndirected by Participant or its Representatives only to David Pace, the Company's Chief Executive Officer, or a person or persons designated in\nwriting by David Pace. Further, except upon the Company's prior written consent, neither Participant nor its Representatives acting on behalf\nof\nParticipant involved with a Possible Transaction or who have received Evaluation Material will, directly or indirectly, contact any stockholder,\ndirector, officer, employee or agent of the Company, or any customer or supplier of the Company, regarding the Evaluation Material or a Possible\nTransaction. Nothing contained herein shall prevent Participant or its Representatives from maintaining any contacts in the ordinary course of\nbusiness unrelated to a Possible Transaction or from conducting consumer surveys or other due diligence, in each case, without disclosing or\nrelying on any Evaluation Material.\n10.\nMaintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each\nParty understands and agrees that the Parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual\nunderstanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of\nsuch material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation\nMaterial that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled\nto such protection under these privileges, this Agreement, and under the joint defense doctrine.\n11.\nCompliance with Securities Laws. Each Recipient acknowledges that the Evaluation Material may include material nonpublic\ninformation (within the meaning of the securities laws of the United States) with respect to Provider. Each Recipient agrees not to use and will\ncause its Representatives to agree not to use any Evaluation Material of Provider in violation of applicable securities laws.\n12.\nNot a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible\nTransaction exists between the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered,\nand each Party hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible\nTransaction unless and until both Parties shall have entered into a final definitive agreement for a Possible Transaction. Each Party also agrees\nthat,\nunless\nand\nuntil\na\nfinal\ndefinitive\nagreement\nregarding\na\nPossible\nTransaction\nhas\nbeen\nexecuted\nand\ndelivered,\nneither\nParty\nwill\nbe\nunder\nany legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters\nspecifically agreed to herein. Neither Party is under any obligation to accept any proposal regarding a Possible Transaction and either Party may\nterminate discussions and negotiations with the other Party at any time.\n13.\nNO Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither\nProvider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation\nMaterial furnished by or on behalf of Provider and shall have no liability to Recipient, its Representatives or any other Person relating to or\nresulting from the use of the Evaluation Material furnished to a Recipient or its respective Representatives or any errors therein or omissions\ntherefrom. As to the information delivered to Recipient, Provider will only be liable for those representations or warranties which are made in a\nfinal definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be\nspecified therein. Nothing in this Agreement shall be construed as obligating Provider to provide, or to continue to provide, any information to\nany Person.\n14.\nModifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by\nwritten consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No\nfailure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n15.\nRemedies. Each Party understands and agrees that money damages may not be a sufficient remedy for any breach of this\nAgreement by either Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to seek\nequitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be\ndeemed to be the exclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other remedies available at\nlaw\nor equity to the Party against which such breach is committed.\n16.\nLegal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either\nParty or its Representatives has breached this Agreement, then the Party which is, or the Party whose Representatives are, determined to have so\nbreached shall be liable and pay to the other Party the reasonable legal fees and costs incurred by the other Party in connection with such\nlitigation, including any appeal therefrom.\n17.\nGoverning Law. This Agreement is for the benefit of each Party and shall be governed by and construed in accordance with\nthe laws of the State of Delaware applicable to agreements made and to be performed entirely within such state.\n18.\nSeverability.. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent\njurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement\nshall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to\nbe\nunenforceable by reason of its extent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority\nmaking that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and\nenforce them in their modified form for all purposes of this Agreement.\n19.\nConstruction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or\nquestion of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of\nproof shall arise favoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n20.\nTerm. This Agreement, and all obligations and other provisions hereunder, shall terminate two years after the date of this\nAgreement.\n21.\nEntire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and\nsupersedes all prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n22.\nCounterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which\ntogether shall be deemed to constitute a single instrument.\n23.\nConsent to Representation. This agreement also constitutes notice to Participant that the Company has engaged DLA Piper\nLLP (US) and its affiliated firms as its legal counsel in connection with the Possible Transaction, and Participant hereby (i) consents to the\ncontinued representation of the Company by DLA Piper LLP (US) and its affiliated firms in relation to the Possible Transaction notwithstanding\nthe\nfact\nthat\nDLA\nPiper\nLLP\n(US)\nmay\nhave\nrepresented,\nand\nmay\ncurrently\nor\nin\nthe\nfuture\nrepresent,\nParticipant\nand/or\nany\nof\nits\nrespective\naffiliates with respect to unrelated matters and (ii) waive any actual or alleged conflict and actual or alleged violation of ethical or comparable\nrules applicable to DLA Piper LLP (US) and its affiliated firms that may arise from its representation of the Company in connection with the\nPossible Transaction, including but not limited to representing the Company against Participant and/or its affiliates in litigation, arbitration, or\nmediation in connection therewith. Notwithstanding the foregoing, in the event of any dispute (including litigation, arbitration, or mediation)\nbetween the Parties related to this Agreement, DLA Piper LLP (US) and its affiliated firms will not represent either Party. In addition, Participant\nhereby acknowledges that the consent and waiver under this paragraph is voluntary and informed, and that Participant has obtained independent\nlegal advice with respect to this consent and waiver. Participant further agrees that they are each aware of the extent of their respective\nrelationships, if any, with DLA Piper LLP (US) and its affiliate firms, and do not require additional information from DLA Piper LLP (US)\nin\norder to understand the nature of this consent. Each of DLA Piper LLP (US) and its affiliated firms are an express third party beneficiary of this\nparagraph.\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative\nas of the date written below.\nJAMBA, INC.\nFOCUS BRANDS INC.\nBy:\n/s/ David Pace\nBy:\n/s/ Sarah Powell\nName: Dave Pace\nName:\nSarah Powell\nTitle: CEO\nTitle:\nEVP, General Counsel & Secretary\nDate: March 30, 2018\nDate: March 29, 2018	EX-99.(D)(2) 11 a2236490zex-99_d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”) by and between Jamba, Inc., a Delaware corporation, including on behalf of\nits affiliates (the “Company”), and FOCUS Brands Inc., a Delaware corporation, including on behalf of its subsidiaries (the “Participant” and\ntogether with the Company, each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto (the\n“Effective Date”).\n1.\nGeneral. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the\nParties, each Party (in its capacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Party (in its\ncapacity as a recipient of information hereunder, a “Recipient”) certain Evaluation Material (as defined in Section 2 below) in accordance with\nthe provisions of this Agreement, and hereby agrees to take or abstain from taking certain other actions as hereinafter set forth.\n2.\nDefinitions.\n(a) The term “affiliates” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled\nby, or under common control with such Person.\n(b) The term “Beneficial Ownership” when used with reference to a security shall have the meaning ascribed to it under the\nSecurities Exchange Act of 1934, as amended (the “1934 Act”), except that for purposes of this definition, the term security shall include any\noption, warrant, or convertible security regardless of exercise or conversion date, and also include any stock appreciation right, or similar right\nwith an exercise or conversion privilege or a settlement payment or mechanism at a price related to the security or with a value derived in whole\nor in part from the value of the security, whether or not such instrument or right shall be subject to settlement in securities or otherwise and any\nother direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of the security.\n(c) The term “Evaluation Material” means information (whether oral, written, electronic or otherwise) concerning Provider\nwhich has been or is furnished to Recipient or its Representatives (as defined below) by or on behalf of Provider in connection with Recipient’s\nevaluation of a Possible Transaction, including Provider ’s business, financial condition, operations, assets, liabilities, personnel and contracts,\nand includes all notes, analyses, compilations, studies, interpretations or other documents prepared by Recipient or its Representatives which\ncontain or are based upon, in whole or in part, the information furnished by the Provider hereunder. The term Evaluation Material does not\ninclude information which (i) is or becomes generally available to the public other than as a result of a disclosure by Recipient or any of its\nRepresentatives in breach of this Agreement, (ii) was within a Recipient’s or its Representatives’ (on behalf of Recipient) possession, prior to its\nbeing furnished to Recipient or its Representatives by or on behalf of Provider or (iii) is or becomes available to Recipient or its Representatives\n(on behalf of Recipient) from a source other than the Provider or its Representatives, provided that the source of such information was not bound\nby a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, Provider with respect to such\ninformation or (iv) Recipient can reasonably show was independently developed by Recipient or Recipient’s Representatives without the use of\nor reference to any Evaluation Material provided by or on behalf of Provider or its Representatives.\n(d) The term “Representatives” shall include the directors, officers, employees, potential financing sources, partners, agents\nand advisors (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) of a Party who have a need to\nknow the Evaluation Material for purposes of evaluating a Possible Transaction, but only those of the foregoing\nwho actually receive Evaluation Material directly from or at the direction of such Party. For the avoidance of doubt, Roark Capital Acquisition\nLLC shall be a Representative of FOCUS Brands Inc. under this Agreement.\n(e) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3.\nUse of Evaluation Material. Each Recipient shall, and shall cause its Representatives to, (i) use the Evaluation Material solely\nfor the purpose of evaluating a Possible Transaction and (ii) keep the Evaluation Material confidential, and, subject to Section 5, will not, and\nwill cause its Representatives not to, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such\ninformation may be disclosed to Recipient’s Representatives who need to know such information for the sole purpose of helping Recipient\nevaluate a Possible Transaction. Each Recipient agrees to be responsible for any breach of this Agreement by any of such Recipient’s\nRepresentatives.\nThis Agreement does not grant Recipient or any of its Representatives any license to use Provider ’s Evaluation Material except as\nprovided herein. In addition, all proprietary and intellectual property rights in and to the Evaluation Material shall remain the sole property of\nProvider, and nothing in this Agreement shall be construed in any way to grant to Recipient or its Representatives or any other Person any\nexpress or implied option, license or other right, title or interest in or to any Evaluation Material, or to any intellectual property rights embodied\nin such Evaluation Material.\n4.\nNon-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other\nParty, such Party will not, and will cause its Representative not to, disclose to any other Person (i) that Evaluation Material has been exchanged\nbetween the Parties, (ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or any other\ntransaction between the Parties or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof) ; provided,\nhowever, that nothing contained herein shall be deemed to inhibit, impair or restrict the ability of Recipient or its Representatives from having\ndiscussions or negotiations with other persons relating to potential financing in connection with the Possible Transaction so long as each of such\nPersons agrees in writing to be bound by the terms of this Agreement applicable to Representatives.\n5.\nLegally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions,\ninterrogatories, other requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process)\nto disclose any of the Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall\nprovide Provider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so\nthat Provider may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the\nabsence of a protective order or other remedy or the receipt of a waiver by Provider, a Recipient or any of its Representatives is nonetheless\nlegally compelled or required to disclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would be\nliable for contempt or suffer other censure or penalty, such Recipient or its respective Representatives may, without liability hereunder, disclose\nto such requiring Person only that portion of such Evaluation Material or any such facts which Recipient or its Representatives is legally\ncompelled or required to disclose, provided that Recipient and/or its Representatives cooperate with Provider to obtain an appropriate protective\norder or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the Person receiving the\nmaterial. Notwithstanding anything in this Agreement to the contrary, neither Recipient nor Recipient’s Representatives shall be required to\nprovide notice or seek consent to disclose any information in connection with a routine audit by, or blanket request from, a regulatory or\ngovernmental entity with jurisdiction over Recipient or Recipient’s Representatives, and not directed at the Company or the Possible Transaction;\nprovided that the Recipient or its Representatives, as applicable, inform any such authority of the confidential nature of the information disclosed\nto them and to keep such information confidential in accordance with such authority’s policies or procedures.\n6.\n“Click Through” Agreements. The terms of this Agreement shall control over any additional purported confidentiality\nrequirements imposed by an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which\nRecipient or its Representatives are granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of\nsuch an offering memorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such\nadditional confidentiality conditions, it being understood and agreed that Recipient’s and its Representatives’ confidentiality obligations with\nrespect to the Evaluation Material are exclusively governed by this Agreement and may not be reduced or enlarged except by an agreement\nexecuted by the Parties hereto in traditional written format.\n7.\nReturn or Destruction of Evaluation Material. At any time upon the request of a Provider for any reason, a Recipient will, and\nwill direct its Representatives to, promptly, but not later than 10 business days, after receipt of such notice or request, destroy or return (at\nRecipient’s option) all Evaluation Material and all documents that incorporate Evaluation Material, and no copy or extract thereof (including\nelectronic copies) shall be retained, except that Recipient and its Representatives may retain one copy to be kept confidential and used solely for\narchival, legal, and compliance purposes. Recipient shall provide to the Provider written confirmation of destruction signed by an authorized\nrepresentative of Recipient. Notwithstanding the return or destruction of the Evaluation Material, Recipient and its Representatives will continue\nto be bound by such Recipient’s obligations hereunder with respect to such Evaluation Material.\n8.\nNo Solicitation. Recipient will not, within eighteen months from the date of this Agreement, directly or indirectly solicit the\nemployment or consulting services of or employ or engage as a consultant any of the senior or key employees of the Provider or any of its\nsubsidiaries nor any other employee of the Provider or any if its subsidiaries with whom Recipient has had direct contact in connection with its\nevaluation of a Possible Transaction or of whom it has become aware as a result of its receipt of any Evaluation Material, so long as they are\nemployed by the Provider or any of its subsidiaries and for two months thereafter. For the purposes of clarification, the mere receipt of\nProvider ’s employee list by Recipient shall not be considered a solicitation of or a direct contact with such employees pursuant to this section. A\nRecipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any particular individual or the employees of\nthe Provider or its subsidiaries generally or (ii) engaging any recruiting firm or similar organization to identify or solicit individuals for\nemployment on behalf of such Recipient (and soliciting any person identified by any such recruiting firm or organization) so long as such\nRecipient does not identify either Provider or any of the individuals employed by Provider to be solicited by such recruiting firm or\norganization. The provisions of this Section 8 shall terminate and be of no further effect upon the acquisition of such Provider by a third party.\n9.\nStandstill. Participant does not own any of the capital stock of the Company as of the Effective Date. Participant agrees that,\nfor a period of one year after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing by the Company, neither\nit nor (1) any of its majority-owned subsidiaries, (2) its Representatives (acting on its behalf), or (3) Roark Capital Acquisition LLC or its\naffiliates who receive Evaluation Material directly from Roark Capital Acquisition LLC or Participant or at their direction, will in any manner,\ndirectly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any\nother Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i)\nany acquisition of any securities (or any acquisition of Beneficial Ownership thereof) or assets of the Company or\nany of its subsidiaries,\n(ii)\nany tender or exchange offer, merger or other business combination involving the Company or any of its\nsubsidiaries,\n(iii)\nany recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the\nCompany or any of its subsidiaries, or\n(iv)\nany “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange\nCommission) or consents to vote any voting securities of the Company;\n(b) form, join or in any way participate in a “group” (as defined under the Act) with respect to the securities of the Company;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without\ncondition), any extraordinary transaction involving the Company or its securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or\npolicies of the Company;\n(e) take any action which may reasonably be expected to force the Company to make a public announcement regarding any of\nthe types of matters set forth in (a) above; or\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nParticipant also agrees, and will cause its Representatives to agree, during the Standstill Period, not to request the Company (or its directors,\nofficers, employees or agents), directly or indirectly, to amend or waive any provision of this Section 9 (including this sentence).\nNotwithstanding anything in this Section 9 to the contrary, if, at any time during the Standstill Period, a public announcement is made\nby the Company or any other Person (other than Participant or its Representatives) that a third party (other than Participant or its\nRepresentatives) intends to acquire at least twenty percent (20%) of the outstanding capital stock of the Company, voting control or a material\npart of the Company’s assets (by way of a tender offer, exchange offer, proxy contest, acquisition or other similar transaction), or if a definitive\nagreement is executed by the Company with a third party relating to such an acquisition of capital stock or assets, the restrictions set forth in this\nSection 9 shall immediately terminate and cease to be of any further effect on Participant.\nParticipant further agrees, and will cause its Representatives to agree, that unless otherwise directed by the Company in writing (i) all\ncommunications with the Company regarding a Possible Transaction, (ii) requests for additional information, facility tours, or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to a Possible Transaction, will be submitted or\ndirected by Participant or its Representatives only to David Pace, the Company’s Chief Executive Officer, or a person or persons designated in\nwriting by David Pace. Further, except upon the Company’s prior written consent, neither Participant nor its Representatives acting on behalf of\nParticipant involved with a Possible Transaction or who have received Evaluation Material will, directly or indirectly, contact any stockholder,\ndirector, officer, employee or agent of the Company, or any customer or supplier of the Company, regarding the Evaluation Material or a Possible\nTransaction. Nothing contained herein shall prevent Participant or its Representatives from maintaining any contacts in the ordinary course of\nbusiness unrelated to a Possible Transaction or from conducting consumer surveys or other due diligence, in each case, without disclosing or\nrelying on any Evaluation Material.\n10.\nMaintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each\nParty understands and agrees that the Parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual\nunderstanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of\nsuch material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation\nMaterial that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled\nto such protection under these privileges, this Agreement, and under the joint defense doctrine.\n11.\nCompliance with Securities Laws. Each Recipient acknowledges that the Evaluation Material may include material nonpublic\ninformation (within the meaning of the securities laws of the United States) with respect to Provider. Each Recipient agrees not to use and will\ncause its Representatives to agree not to use any Evaluation Material of Provider in violation of applicable securities laws.\n12.\nNot a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible\nTransaction exists between the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered,\nand each Party hereby waives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible\nTransaction unless and until both Parties shall have entered into a final definitive agreement for a Possible Transaction. Each Party also agrees\nthat, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will be under\nany legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters\nspecifically agreed to herein. Neither Party is under any obligation to accept any proposal regarding a Possible Transaction and either Party may\nterminate discussions and negotiations with the other Party at any time.\n13.\nNo Representations or Warranties; No Obligation to Disclose. Each Recipient understands and acknowledges that neither\nProvider nor its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation\nMaterial furnished by or on behalf of Provider and shall have no liability to Recipient, its Representatives or any other Person relating to or\nresulting from the use of the Evaluation Material furnished to a Recipient or its respective Representatives or any errors therein or omissions\ntherefrom. As to the information delivered to Recipient, Provider will only be liable for those representations or warranties which are made in a\nfinal definitive agreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be\nspecified therein. Nothing in this Agreement shall be construed as obligating Provider to provide, or to continue to provide, any information to\nany Person.\n14.\nModifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by\nwritten consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No\nfailure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n15.\nRemedies. Each Party understands and agrees that money damages may not be a sufficient remedy for any breach of this\nAgreement by either Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to seek\nequitable relief, including injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be\ndeemed to be the exclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other remedies available at law\nor equity to the Party against which such breach is committed.\n16.\nLegal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either\nParty or its Representatives has breached this Agreement, then the Party which is, or the Party whose Representatives are, determined to have so\nbreached shall be liable and pay to the other Party the reasonable legal fees and costs incurred by the other Party in connection with such\nlitigation, including any appeal therefrom.\n17.\nGoverning Law. This Agreement is for the benefit of each Party and shall be governed by and construed in accordance with\nthe laws of the State of Delaware applicable to agreements made and to be performed entirely within such state.\n18.\nSeverability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent\njurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement\nshall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be\nunenforceable by reason of its extent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority\nmaking that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and\nenforce them in their modified form for all purposes of this Agreement.\n19.\nConstruction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or\nquestion of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of\nproof shall arise favoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n20.\nTerm. This Agreement, and all obligations and other provisions hereunder, shall terminate two years after the date of this\nAgreement.\n21.\nEntire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and\nsupersedes all prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n22.\nCounterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which\ntogether shall be deemed to constitute a single instrument.\n23.\nConsent to Representation. This agreement also constitutes notice to Participant that the Company has engaged DLA Piper\nLLP (US) and its affiliated firms as its legal counsel in connection with the Possible Transaction, and Participant hereby (i) consents to the\ncontinued representation of the Company by DLA Piper LLP (US) and its affiliated firms in relation to the Possible Transaction notwithstanding\nthe fact that DLA Piper LLP (US) may have represented, and may currently or in the future represent, Participant and/or any of its respective\naffiliates with respect to unrelated matters and (ii) waive any actual or alleged conflict and actual or alleged violation of ethical or comparable\nrules applicable to DLA Piper LLP (US) and its affiliated firms that may arise from its representation of the Company in connection with the\nPossible Transaction, including but not limited to representing the Company against Participant and/or its affiliates in litigation, arbitration, or\nmediation in connection therewith. Notwithstanding the foregoing, in the event of any dispute (including litigation, arbitration, or mediation)\nbetween the Parties related to this Agreement, DLA Piper LLP (US) and its affiliated firms will not represent either Party. In addition, Participant\nhereby acknowledges that the consent and waiver under this paragraph is voluntary and informed, and that Participant has obtained independent\nlegal advice with respect to this consent and waiver. Participant further agrees that they are each aware of the extent of their respective\nrelationships, if any, with DLA Piper LLP (US) and its affiliate firms, and do not require additional information from DLA Piper LLP (US) in\norder to understand the nature of this consent. Each of DLA Piper LLP (US) and its affiliated firms are an express third party beneficiary of this\nparagraph.\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative\nas of the date written below.\nJAMBA, INC.\nFOCUS BRANDS INC.\nBy:\n/s/ David Pace\nBy: /s/ Sarah Powell\nName: Dave Pace\nName: Sarah Powell\nTitle:\nCEO\nTitle: EVP, General Counsel & Secretary\nDate: March 30, 2018\nDate: March 29, 2018
+58bb4bcceda75d910f8c87563aeedec7.pdf	effective_date jurisdiction party	EX-10 .2 3 a13-15982 _1ex10d2.htm EX-10.2\nExhibit 10.2\nEMPLOYMENT NON-COMPETE , NON -SOLICIT AND CONFIDENTIALITY AGREEMENT\nThis Employment Non-Compete, Non-Solicit and Confidentiality Agreement (“Agreement”) is entered into between Citi Trends, Inc. ( “Company”), and Ivy Council (“Employee”), effective as of the 1st day of May, 2013.\nFor and in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree:\n1.\nEmployment; Scope of Services. Company shall employ Employee, and Employee shall be employed by Company, as Executive Vice President, Human Resources (“EVPHR”). Employee shall use his/her best efforts\nand shall devote his/her full time, attention, knowledge and skills to the faithful performance of his/her duties and responsibilities as a Company employee. Employee shall have such authority and such other duties and responsibilities as\nassigned by the Chief Executive Officer. Employee shall comply with Company’s policies and procedures, shall conduct him/herself as an ethical business professional, and shall comply with federal, state and local laws.\n2.\nAt-Will Employment. Nothing in this Agreement alters the at-will employment relationship between Employee and Company. Employment with Company is “at-will” which means that either Employee or Company\nmay terminate the employment relationship at any time, with or without notice, with or without cause. The date of Employee’s cessation of employment for any reason is the “Separation Date.”\n3.\nConfidentiality.\n(a)\nEmployee acknowledges and agrees that (1) the retail sale of value-priced/off- price family apparel is an extremely competitive industry; (2) Company has an ongoing strategy for expansion of its business\nin the United States; (3) Company’s major competitors operate throughout the United States and some internationally; and (4) because of Employee’s position as EVPHR, he/she will have access to, knowledge of, and be entrusted with,\nhighly sensitive and competitive Confidential Information (as defined in subsection (b) below) of Company, including without limitation information regarding sales margins, purchasing and pricing strategies, marketing strategies,\nvendors and suppliers, plans for expansion and placement of stores, and also specific information about Company’s districts and stores, such as staffing, budgets, profits and the financial success of individual districts and stores.\n(b)\nAs used herein, “Confidential Information” means and includes any and all Company data and information in any form whatsoever (tangible or intangible) which: (1) relates to the business of Company,\nirrespective of whether the data or information constitutes a “trade secret” (as defined by applicable law); (2) is disclosed to Employee or which Employee obtains or becomes aware of as a consequence of Employee’s relationship with\nCompany; (3) has value to Company; and (4) is not generally known to Company’s competitors. “ Confidential Information” includes (but is not limited to) technical or sales data, formulas, patterns, compilations, programs, devices,\nmethods, techniques, drawings, processes, financial data and\n1\nstatements, financial plans and strategies, product plans, sales or advertising information and plans, marketing information and plans, pricing information, the identity or lists of employees, vendors and suppliers of Company, and\nconfidential or proprietary information of such employees, vendors and suppliers. Employee acknowledges and agrees that all Confidential Information is and remains the sole and exclusive property of Company.\n(c)\nEmployee agrees that he/she shall hold all Confidential Information in strictest confidence, and that he/she shall protect such Confidential Information from disclosure by or to others. Employee further\nagrees that he/she shall not at any time (except as authorized by Company in connection with Employee’s duties and responsibilities as an employee): (1) disclose, publish, transfer, or communicate Confidential Information to any\nperson or entity, other than authorized Company personnel; or (2) use or reproduce Confidential Information for personal benefit or for any purpose or reason other than furthering the legitimate business interest of Company within the\nscope of Employee’s duties with Company; or (3) remove or transfer any Confidential Information from Company’s premises or systems (by any method or means) except for use in Company’s business and consistent with Employee’s\nduties with the Company. The foregoing covenants and obligations are in addition to, and do not limit, any common law or statutory rights and/or protections afforded to Company.\n(d)\nEmployee acknowledges that Company has provided or will provide Employee with Company property, including without limitation, employee handbooks, policy manuals, price lists, financial reports, and\nvendor and supplier information, among other items. Upon the Separation Date, or upon the request of Company, Employee shall immediately deliver to Company all property belonging to Company, including without limitation, all\nConfidential Information and any property related to Company, whether in electronic or other format, as well as any copies thereof, then in Employee’s custody, control or possession. Upon the Separation Date, Employee shall provide\nCompany with a declaration certifying that all Confidential Information and any other Company property have been returned to Company, that Employee has not kept any copies of such items or distributed such items to any third party,\nand that Employee has otherwise complied with the terms of Section 3 of this Agreement.\n4.\nCovenant Not to Compete. Employee agrees that he/she will not, at any point during his/her employment with Company, work for or engage or participate in any business, enterprise, or endeavor that in any way\ncompetes with any aspect of Company’s business or that otherwise conflicts with Company’s interest. In addition, for a period of one (1) year following the Separation Date, and regardless of the reason for separation, Employee shall not,\nwithin the continental United States: (a) become employed by or work for a “Competitor” (as defined below) in any position or capacity involving duties and/or responsibilities which are the same as or substantially similar to any of the\nduties and/or responsibilities Employee had with and/or performed for Company; or (b) perform or provide any services which are the same as or substantially similar to any of the services which Employee performed or provided for the\nCompany, for or on behalf of any Competitor. For purposes of this Section 4, the term “Competitor” shall mean only the following businesses, commonly known as: Cato, TJX (including without limitation TJMAXX and Marshalls),\nBurlington Stores, and Ross Stores.\n2\n5.\nCovenant Not to Solicit. During Employee’s employment with Company, and for a period of eighteen (18) months following the Separation Date, and regardless of the reason for separation, Employee agrees not to\nsolicit any “Merchandise Vendors” (as defined below) for the purpose of obtaining merchandise and/or inventory for or on behalf of any “Competitor” (as defined in Section 4 of this Agreement). As used herein, “Merchandise Vendors”\nmeans and includes any person or entity who/that has been a vendor or supplier of merchandise and/or inventory to Company during the eighteen (18) months immediately preceding the Separation Date or to whom/which Company is\nactively soliciting for the provision of merchandise and/or inventory, and with whom/which Employee had “material contact.” For purposes of this agreement, “material contact” means that Employee either had access to confidential\ninformation regarding the Merchandise Vendor, or was directly involved in negotiations or retention of such Merchandise Vendor.\nEmployee specifically acknowledges and agrees that, as EVPHR, his/her duties include, without limitation, establishing purchasing and pricing strategies and policies, managing sales margins, involvement in establishing\nand maintaining vendor relationships, and having contact with and confidential and/or proprietary information regarding Merchandise Vendors. The non- solicitation restrictions set forth in this Section 5 are specifically limited to\nMerchandise Vendors with whom Employee had contact (whether personally, telephonically, or through written or electronic correspondence) during employment as EVPHR or about whom/which Employee had confidential or\nproprietary information because of his/her position with Company.\n6.\nCovenant Not to Recruit Personnel. During Employee’s employment with Company, and for a period of two (2) years following the Separation Date, and regardless of the reason for separation, Employee will not:\n(a) recruit or solicit to hire or assist others in recruiting or soliciting to hire, any employee of Company; or (b) cause or assist others in causing any employee of Company to terminate an employment relationship with Company.\n7.\nSeverability. If any provision of this Agreement is held invalid, illegal, or otherwise unenforceable, in whole or in part, the remaining provisions, and any partially enforceable provisions to the extent enforceable, shall\nbe binding and remain in full force and effect. Further, each particular prohibition or restriction set forth in any Section of this Agreement shall be deemed a severable unit, and if any court of competent jurisdiction determines that any\nportion of such prohibition or restriction is against the policy of the law in any respect, but such restraint, considered as a whole, is not so clearly unreasonable and overreaching in its terms as to be unconscionable, the court shall enforce\nso much of such restraint as is determined to be reasonably necessary to protect the legitimate interests of Company. Employee and Company expressly agree that, should any court of competent jurisdiction find or determine that any of\nthe covenants contained herein are overly-broad or otherwise unenforceable, the court may “blue- pencil,” modify, and/or reform any such covenant (in whole or in part) so as to cure the over- breadth or to otherwise render the covenant\nenforceable.\n8.\nSurvival of Covenants. All rights and covenants contained in Sections 3, 4, 5, and 6 of this Agreement, and all remedies relating thereto, shall survive the termination of this Agreement for any reason.\n3\n9.\nGoverning Law. All matters affecting this Agreement, including the validity thereof, are to be subject to, and interpreted and construed in accordance with, the laws of the State of Georgia applicable to contracts executed\nin and to be performed in that State.\n10.\nAcknowledgment of Reasonableness/Remedies/Enforcement.\n(a)\nEmployee acknowledges that: (1) Company has valid interests to protect pursuant to Sections 3, 4, 5, and 6 of this Agreement; (2) the breach of the provisions of Sections 3, 4, 5, or 6 of this Agreement\nwould result in irreparable injury and permanent damage to Company; and (3) such restrictions are reasonable and necessary to protect the interests of Company, are critical to the success of Company’s business, and do not cause undue\nhardship on Employee.\n(b)\nEmployee agrees that determining damages in the event of a breach of Sections 3, 4, 5, or 6 by Employee would be difficult and that money damages alone would be an inadequate remedy for the injuries\nand damages which would be suffered by Company from such breach. Therefore, Employee agrees that Company shall be entitled (in addition to any other remedies it may have under this Agreement, at law, or otherwise) to immediate\ninjunctive and other equitable relief to prevent or curtail any such breach by Employee. Employee and Company waive any requirement that a bond or any other security be posted. Nothing in this Agreement shall prohibit Company from\nseeking or recovering any legal or monetary damages to which it may be entitled if Employee breaches any provision in this Agreement.\n11.\nMiscellaneous. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior contracts, agreements, or understandings between the parties which may have been entered into by\nCompany and Employee relating to the subject matter hereof. This Agreement may not be amended or modified in any manner except by an instrument in writing signed by both Company and Employee. The failure of either party to\nenforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of any such provision or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of this\nAgreement shall be held to be a waiver of any other or subsequent breach. All remedies are cumulative, including the right of either party to seek equitable relief in addition to money damages.\nEMPLOYEE ACKNOWLEDGES AND AGREES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND KNOWS AND UNDERSTANDS ITS CONTENTS, THAT HE/SHE ENTERS INTO THIS\nAGREEMENT KNOWINGLY AND VOLUNTARILY, AND THAT HE/SHE INDICATES HIS/HER CONSENT BY SIGNING THIS FINAL PAGE.\n(SIGNATURES TO FOLLOW ON NEXT PAGE)\n4\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the day and year first above written.\nCiti Trends, Inc.\nEmployee Signature\nBy:\nEmployee Residence Address:\nR. Edward Anderson\nChairman and Chief Executive Officer\n5	EX-10.2 3 al3-15982_leX10d2.htm EX-10.2\nExhibith.2\nEMPLOYMENT NON-COMPETE, NON-SOLICIT AND CONFIDENTIALITY AGREEMENT\n \nThis Employment Non-Compete, Non-Solicit and Confidentiality Agreement ("A greement”) is entered into between Citi Trends, Inc. ("Company"), and Ivy Council (”Employee"), effective as of the lst day of May, 2013.\nFor and in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree:\n1. Employment Scope of Services Company shall employ Employee, and Employee shall be employed by Company, as Executive Vice President, Human Resources (”EV PHR"). Employee shall use his/her best efforts\nand shall devote his/her full time, attention, knowledge and skills to the faithful performance of his/her duties and responsibilities as a Company employee. Employee shall have such authority and such other duties and responsibilities as\nassigned by the Chief Executive Officer. Employee shall comply with Company's policies and procedures, shall conduct him/herself as an ethical business professional, and shall comply with federal, state and local laws.\n2. At—Will Employment. Nothing in this Agreement alters the at-will employment relationship between Employee and Company. Employment with Company is "at-will" which means that either Employee or Company\nmay terminate the employment relationship at any time, with or without notice, with or without cause. The date of Employee’s cessation of employment for any reason is the "Separation Date."\n3. Confidentialifl.\n(a) Employee acknowledges and agrees that (1) the retail sale of value-priced/off— price family apparel is an extremely competitive industry; (2) Company has an ongoing strategy for expansion of its business\nin the United States; (3) Company’s major competitors operate throughout the United States and some internationally,- and (4) because of Employee’s position as EV PHR, he/she will have access to, knowledge of, and be entrusted with,\nhighly sensitive and competitive Confidential Information (as defined in subsection (b) below) of Company, including without limimtion information regarding sales margins, purchasing and pricing strategies, marketing strategies,\nvendors and suppliers, plans for expansion and placement of stores, and also specific information about Company’s districts and stores, such as smffing, budgets, profits and the financial success of individual districts and stores.\n(b) As used herein, ”Confidential Information" means and includes any and all Company dam and information in any form whatsoever (tangible or intangible) which: (1) relates to the business of Company,\nirrespective of whether the data orinformation constitutes a "trade secret" (as defined by applicable law),- (2) is disclosed to Employee or which Employee obmins or becomes aware of as a consequence of Employee's relationship with\nCompany; (3) has value to Company; and (4) is not generally known to Company's competitors. ”Confidential Information" includes (but is not limited to) technical or sales data, formulas, patterns, compilations, programs, devices,\nmethods, techniques, drawings, processes, financial data and\nsmtements, financial plans and strategies, product plans, sales or advertising information and plans, marketing information and plans, pricing information, the identity or lists of employees, vendors and suppliers of Company, and\nconfidential or proprietary information of such employees, vendors and suppliers. Employee acknowledges and agrees that all Confidential Information is and remains the sole and exclusive property of Company.\n(c) Employee agrees that he/she shall hold all Confidential Information in strictest confidence, and that he/she shall protect such Confidential Information from disclosure by orto others. Employee further\nagrees that he/she shall not at any time (except as authorized by Company in connection with Employee' 5 duties and responsibilities as an employee): (1) disclose, publish, transfer, or communicate Confidential Information to any\nperson or entity, other than authorized Company personnel,- or (2) use or reproduce Confidential Information for personal benefit or for any purpose or reason other than furthering the legitimate business interest of Company within the\nscope of Employee' 5 duties with Company; or (3) remove or transfer any Confidential Information from Company's premises or systems (by any method or means) except for use in Company’s business and consistent with Employee’s\nduties with the Company. The foregoing covenants and obligations are in addition to, and do not limit, any common law or smtutory rights and/or protections afforded to Company.\n(d) Employee acknowledges that Company has provided or will provide Employee with Company property, including without limitation, employee handbooks, policy manuals, price lists, financial reports, and\nvendor and supplier information, among other items. Upon the Separation Date, or upon the request of Company, Employee shall immediately deliver to Company all property belonging to Company, including without limitation, all\nConfidential Information and any property related to Company, whether in electronic or other format, as well as any copies thereof, then in Employee's custody, control or possession. Upon the Separation Date, Employee shall provide\nCompany with a declaration certifying that all Confidential Information and any other Company property have been returned to Company, that Employee has not kept any copies of such items or distributed such items to any third party,\nand that Employee has otherwise complied with the terms of Section 3 of this Agreement.\n4. Covenant Not to Compete. Employee agrees that he/she will not, at any point during his/her employment with Company, work for or engage or participate in any business, enterprise, or endeavor that in any way\ncompetes with any aspect of Company' 5 business or that otherwise conflicts with Company's interest. In addition, for a period of one (1) year following the Separation Date, and regardless of the reason for separation, Employee shall not,\nwithin the continenml United States: (a) become employed by or work for a ”Competitor” (as defined below) in any position or capacity involving duties and/or responsibilities which are the same as or substantially similar to any of the\nduties and/or responsibilities Employee had with and/or performed for Company,- or (b) perform or provide any services which are the same as or substantially similar to any of the services which Employee performed or provided for the\nCompany, for or on behalf of any Competitor. For purposes of this Section 4, the term ”Competitor” shall mean only the following businesses, commonly known as: Cato, TJX (including without limitation TJMAXX and Marshalls),\nBurlington Stores, and Ross Stores.\n5. Covenant Not to Solicit. During Employee's employment with Company, and for a period of eighteen (18) months following the Separation Date, and regardless of the reason for separation, Employee agrees not to\nsolicit any "Merchandise Vendors" (as defined below) for the purpose of obtaining merchandise and/or inventory for or on behalf of any "Competitor” (as defined in Section 4 of this Agreement). As used herein, "Merchandise Vendors"\nmeans and includes any person or entity who/that has been a vendor or supplier of merchandise and/or inventory to Company during the eighteen (18) months immediately preceding the Separation Date or to whom/which Company is\nactively soliciting for the provision of merchandise and/orinventory, and with whom/which Employee had ”material contact." For purposes of this agreement, ”material conmct" means that Employee either had access to confidential\ninformation regarding the Merchandise Vendor, or was directly involved in negotiations or retention of such Merchandise Vendor.\nEmployee specifically acknowledges and agrees that, as EV PHR, his/her duties include, without limimtion, establishing purchasing and pricing strategies and policies, managing sales margins, involvement in esmblishing\nand maintaining vendor relationships, and having conmct with and confidential and/or proprietary information regarding Merchandise Vendors. The non— solicitation restrictions set forth in this Section 5 are specifically limited to\nMerchandise Vendors with whom Employee had contact (whether personally, telephonically, or through written or electronic correspondence) during employment as EV PHR or about whom/which Employee had confidential or\nproprietary information because of his/her position with Company.\n6. Covenant Not to Recruit Personnel. During Employee's employment with Company, and for a period of two (2) years following the Separation Date, and regardless of the reason for separation, Employee will not:\n(a) recruit or solicit to hire or assist others in recruiting or soliciting to hire, any employee of Company; or (b) cause or assist others in causing any employee of Company to terminate an employment relationship with Company.\n7. Severabilim. If any provision of this Agreement is held invalid, illegal, or otherwise unenforceable, in whole or in part, the remaining provisions, and any partially enforceable provisions to the extent enforceable, shall\nbe binding and remain in full force and effect Further, each particular prohibition or restriction set forth in any Section of this Agreement shall be deemed a severable unit, and if any court of competent jurisdiction determines that any\nportion of such prohibition or restriction is against the policy of the law in any respect, but such restraint, considered as a whole, is not so clearly unreasonable and overreaching in its terms as to be unconscionable, the court shall enforce\nso much of such restraint as is determined to be reasonably necessary to protect the legitimate interests of Company. Employee and Company expressly agree that, should any court of competent jurisdiction find or determine that any of\nthe covenants contained herein are overly-broad or otherwise unenforceable, the court may ”blue— pencil,” modify, and/or reform any such covenant (in whole or in part) so as to cure the over- breadth or to otherwise render the covenant\nenforceable\n8. Survival of Covenants. All rights and covenants contained in Sections 3, 4, 5, and 6 of this Agreement, and all remedies relating thereto, shall survive the termination of this Agreement for any reason.\n9. Governing Law. All matters affecting this Agreement, including the validity thereof, are to be subject to, and interpreted and construed in accordance with, the laws of the State of Georgia applicable to contracts executed\nin and to be performed in that State.\n10. Acknowledgment of Reasonableness/Remedies/Enforcement.\n(a) Employee acknowledges that: (1) Company has valid interests to protect pursuant to Sections 3, 4, 5, and 6 of this Agreement; (2) the breach of the provisions of Sections 3, 4, 5, or 6 of this Agreement\nwould result in irreparable injury and permanent damage to Company,- and (3) such restrictions are reasonable and necessary to protect the interests of Company, are critical to the success of Company’s business, and do not cause undue\nhardship on Employee.\n(b) Employee agrees that determining damages in the event of a breach of Sections 3, 4, 5, or 6 by Employee would be difficult and that money damages alone would be an inadequate remedy for the injuries\nand damages which would he suffered by Company from such breach. Therefore, Employee agrees that Company shall be entitled (in addition to any other remedies it may have under this Agreement, at law, or otherwise) to immediate\ninjunctive and other equitable relief to prevent or curmil any such breach by Employee. Employee and Company waive any requirement that a bond or any other security be posted. Nothing in this Agreement shall prohibit Company from\nseeking or recovering any legal or monetary damages to which it may be entitled if Employee breaches any provision in this Agreement.\n11. Miscellaneous. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior contracts, agreements, or undersmndings between the parties which may have been entered into by\nCompany and Employee relating to the subject matter hereof. This Agreement may not be amended or modified in any manner except by an instrument in writing signed by both Company and Employee. The failure of either party to\nenforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of any such provision or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of this\nAgreement shall be held to be a waiver of any other or subsequent breach. All remedies are cumulative, including the right of either party to seek equitable relief in addition to money damages.\nEMPLOYEE ACKNOWLEDGES AND AGREES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND KNOWS AND UNDERSTANDS ITS CONTENTS, THAT HE/SHE ENTERS INTO THIS\nAGREEMENT KNOWINGLY AND VOLUNTARILY, AND THAT HE/SHE INDICATES HIS/HER CONSENT BY SIGNING THIS FINAL PAGE.\n[SIGNATURES TO FOLLOW ON NEXT PAGE)\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the day and year first above written.\nCiti Trends, Inc.\nW\nBy: Employee Residence Address:\nR. Edwafifim—\nChairman and Chief Executive Officer	EX-10.2 23a13-15982 lex10d2.htm EX-10.2\nExhibit 10.2\nEMPLOYMENT NON-COMPETE, NON-SOLICIT AND CONFIDENTIALITY AGREEMENT\nThis Employment Non-Compete, Non-Solicit and Confidentiality Agreement ("Agreement") is entered into between Citi Trends, Inc. ("Company"), and Ivy Council ("Employee"), effective as of the 1st day of May, 2013.\nFor and in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree:\n1.\nEmployment; Scope of Services Company shall employ Employee, and Employee shall be employed by Company, as Executive Vice President, Human Resources ("EVPHR"). Employee shall use his/her best efforts\nand shall devote his/her full time, attention, knowledge and skills to the faithful performance of his/her duties and responsibilities as a Company employee. Employee shall have such authority and such other duties and responsibilities as\nassigned by the Chief Executive Officer. Employee shall comply with Company's policies and procedures, shall conduct him/herself as an ethica business professional, and shall comply with federal, state and local laws.\n2.\nAt-Will Employment Nothing in this Agreement alters the at will employment relationship between Employee and Company. Employment with Company is at-will" which means that either Employee or Company\nmay terminate the employment relationship at any time, with or without notice, with or without cause. The date of Employee's cessation of employment for any reason is the "Separation Date."\n3.\nConfidentiality.\n(a)\nEmployee acknowledges and agrees that (1) the retail sale of value-priced/off- price family apparel is an extremely competitive industry; (2) Company has an ongoing strategy for expansion of its business\nin the United States; (3) Company's major competitors operate throughout the United States and some interationally; and (4) because of Employee's position as EVPHR he/she will have access to, knowledge of, and be entrusted with,\nhighly sensitive and competitive Confidential Information (as defined in subsection (b) below) of Company, including without limitation information regarding sales margins, purchasing and pricing strategies, marketing strategies,\nvendors and suppliers, plans for expansion and placement of stores, and also specific information about Company's districts and stores, such as staffing, budgets, profits and the financial success of individual districts and stores.\n(b)\nAs used herein, "Confidential Information" means and includes any and all Company data and information in any form whatsoever (tangible or intangible) which: (1) relates to the business of Company,\nirrespective of whether the data or information constitutes a "trade secret" (as defined by applicable law); (2) is disclosed to Employee or which Employee obtains or becomes aware of as a consequence of Employee's relationship with\nCompany; (3) has value to Company; and (4) is not generally known to Company's competitors. "Confidential Information" includes (but is not limited to) technical or sales data formulas, patterns, compilations, programs, devices,\nmethods, techniques, drawings, processes, financial data and\n1\nstatements, financial plans and strategies product plans, sales or advertising information and plans, marketing information and plans pricing information, the identity or lists of employees, vendors and suppliers of Company, and\nconfidential or proprietary information of such employees, vendors and suppliers. Employee acknowledges and agrees that all Confidential Information is and remains the sole and exclusive property of Company.\n(c)\nEmployee agrees that he/she shall hold all Confidential Information in strictest confidence and that he/she shall protect such Confidential Information from disclosure by or to others. Employee further\nagrees that he/she shall not at any time (except as authorized by Company in connection with Employee's duties and responsibilities as an employee): (1) disclose, publish, transfer, or communicate Confidential Information to any\nperson or entity, other than authorized Company personnel; or (2) use or reproduce Confidential Information for personal benefit or for any purpose or reason other than furthering the legitimate business interest of Company within\nthe\nscope\nof Employee's duties with Company; or (3) remove or transfer any Confidential Information from Company's premises or systems (by any method or means) except for use in Company's business and consistent with Employee's\nduties with the Company The foregoing covenants and obligations are in addition to, and do not limit, any common law or statutory rights and/or protections afforded to Company.\n(d)\nEmployee acknowledges that Company has provided or will provide Employee with Company property including without limitation, employee handbooks policy manuals, price lists, financial reports, and\nvendor and supplier information, among other items. Upon the Separation Date, or upon the request of Company, Employee shall immediately deliver to Company all property belonging to Company, including without limitation, all\nConfidential Information and any property related to Company, whether in electronic or other format, as well as any copies thereof, then in Employee's custody, control or possession. Upon the Separation Date, Employee shall provide\nCompany with a declaration certifying that all Confidential Information and any other Company property have been retumed to Company, that Employee has not kept any copies of such items or distributed such items to any third party,\nand that Employee has otherwise complied with the terms of Section 3 of this Agreement.\n4.\nCovenant Not to Compete Employee agrees that he/she will not, at any point during his/her employment with Company, work for or engage or participate in any business, enterprise, or endeavor that in any way\ncompetes with any aspect of Company's business or that otherwise conflicts with Company's interest. In addition, for a period of one (1) year following the Separation Date, and regardless of the reason for separation, Employee shall not,\nwithin the continental United States: (a) become employed by or work for a "Competitor" (as defined below) in any position or capacity involving duties and/or responsibilities which are the same as or substantially similar to any of the\nduties and/or responsibilities Employee had with and/or performed for Company; or (b) perform or provide any services which are the same as or substantially similar to any of the services which Employee performed or provided for the\nCompany, for or on behalf of any Competitor. For purposes of this Section 4, the term "Competitor" shall mean only the following businesses commonly known as: Cato, TJX (including without limitation TJMAXX and Marshalls),\nBurlington Stores, and Ross Stores.\n2\n5.\nCovenant Not to Solicit. During Employee's employment with Company, and for a period of eighteen (18) months following the Separation Date, and regardless of the reason for separation, Employee agrees not to\nsolicit any "Merchandise Vendors" (as defined below) for the purpose of obtaining merchandise and/or inventory for or on behalf of any "Competitor" (as defined in Section 4 of this Agreement). As used herein, "Merchandise Vendors"\nmeans and includes any person or entity who/that has been a vendor or supplier of merchandise and/or inventory to Company during the eighteen (18) months immediately preceding the Separation Date or to whom/which Company is\nactively soliciting for the provision of merchandise and/or inventory, and with whom/which Employee had "material contact." For purposes of this agreement, "material contact" means that Employee either had access to confidential\ninformation regarding the Merchandise Vendor, or was directly involved in negotiations or retention of such Merchandise Vendor.\nEmployee specifically acknowledges and agrees that, as PHR, his/her duties include, without limitation, establishing purchasing and pricing strategies and policies, managing sales margins, involvement in establishing\nand maintaining vendor relationships, and having contact with and confidential and/or proprietary information regarding Merchandise Vendors. The non- solicitation restrictions set forth in this Section 5 are specifically limited to\nMerchandise Vendors with whom Employee had contact (whether personally, telephonically, or through written or electronic correspondence) during employment as EVPHR or about whom/which Employee had confidential or\nproprietary information because of his/her position with Company.\n6.\nCovenant Not to Recruit Personnel. During Employee's employment with Company, and for a period of two (2) years following the Separation Date, and regardless of the reason for separation Employee will not:\n(a) recruit or solicit to hire or assist others in recruiting or soliciting to hire, any employee of Company; or (b) cause or assist others in causing any employee of Company to terminate an employment relationship with Company.\n7.\nSeverability If any provision of this A greemen is held invalid, illegal, or otherwise unenforceable, in whole or in part, the remaining provisions, and any partially enforceable provisions to the extent enforceable, shal\nbe\nbinding and remain in full force and effect Further, each particular prohibition or restriction set forth in any Section of this greement shall be deemed a severable unit, and if any court of competent jurisdiction determines that any\nportion of such prohibition or restriction is against the policy of the law in any respect, but such restraint, considered as a whole, is not so clearly unreasonable and overreaching in its terms as to be unconscionable, the court shall enforce\nso much of such restraint as is determined to be reasonably necessary to protec the legitimate interests of Company Employee and Company expressly agree that, should any court of competent jurisdiction find or determine that any of\nthe covenants contained herein are overly-broad or otherwise unenforceable, the court may "blue- pencil," modify, and/or reform any such covenant (in whole or in part) so as to cure the over- breadth or to otherwise render the covenant\nenforceable.\n8.\nSurvival of Covenants All rights and covenants contained in Sections 3, 4, 5, and 6 of this Agreement, and all remedies relating thereto, shall survive the termination of this A greement for any reason.\n3\n9.\nGoveming Law All matters affecting this Agreement, including the validity thereof are to be subject to, and interpreted and construed in accordance with, the laws of the State of Georgia applicable to contracts executed\nin and to be performed in that State.\n10.\nAcknowledgment of Reasonableness/Remedies/Enforcement.\n(a)\nEmployee acknowledges that: (1) Company has valid interests to protect pursuant to Sections 3, 4, 5, and 6 of this Agreement; (2) the breach of the provisions of Sections 3, 4, 5, or 6 of this Agreement\nwould resul in irreparable injury and permanent damage to Company; and (3) such restrictions are reasonable and necessary to protect the interests of Company, are critical to the success of Company's business, and do not cause undue\nhardship on Employee.\n(b)\nEmployee agrees that determining damages in the event of a breach of Sections 3, 4, 5, or 6 by Employee would be difficult and that money damages alone would be an inadequate remedy for the injuries\nand damages which would be suffered by Company from such breach Therefore, Employee agrees that Company shall be entitled (in addition to any other remedies it may have under this Agreement, at law, or otherwise) to immediate\ninjunctive and other equitable relief to prevent or curtai any such breach by Employee. Employee and Company waive any requirement that a bond or any other security be posted Nothing in this Agreement shall prohibit Company from\nseeking or recovering any legal or monetary damages to which it may be entitled if Employee breaches any provision in this Agreement.\n11.\nMiscellaneous. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior contracts, agreements, or understandings between the parties which may have been entered into by\nCompany and Employee relating to the subject matter hereof. This Agreement may not be amended or modified in any manner except by an instrument in writing signed by both Company and Employee The failure of either party to\nenforce at any time any of the provisions of this A greement shall in no way be construed to be a waiver of any such provision or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of this\nA\ngreement shall be held to be a waiver of any other or subsequent breach. Al remedies are cumulative, including the right of either party to seek equitable relief in addition to money damages.\nEMPLOYEE ACKNOWLEDGES AND AGREES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND KNOWS A AND UNDERSTANDS ITS CONTENTS, THAT HE/SHE ENTERS INTO THIS\nAGREEMENT KNOWINGLY AND VOLUNTARILY, AND THAT HE/SHE INDICATES HIS/HER CONSENT BY SIGNING THIS FINAL PAGE.\n(SIGNATURES TO FOLLOW ON NEXT PAGE)\n4\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the day and year first above written.\nCiti Trends, Inc.\nEmproye signature\nBy\nEmployee Residence Address:\nR. Edward nderson\nChairman and Chief Executive Officer\n5	EX-10 .2 3 a13-15982 _1ex10d2.htm EX-10.2\nExhibit 10.2\nEMPLOYMENT NON-COMPETE , NON -SOLICIT AND CONFIDENTIALITY AGREEMENT\nThis Employment Non-Compete, Non-Solicit and Confidentiality Agreement (“Agreement”) is entered into between Citi Trends, Inc. ( “Company”), and Ivy Council (“Employee”), effective as of the 1st day of May, 2013.\nFor and in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree:\n1.\nEmployment; Scope of Services. Company shall employ Employee, and Employee shall be employed by Company, as Executive Vice President, Human Resources (“EVPHR”). Employee shall use his/her best efforts\nand shall devote his/her full time, attention, knowledge and skills to the faithful performance of his/her duties and responsibilities as a Company employee. Employee shall have such authority and such other duties and responsibilities as\nassigned by the Chief Executive Officer. Employee shall comply with Company’s policies and procedures, shall conduct him/herself as an ethical business professional, and shall comply with federal, state and local laws.\n2.\nAt-Will Employment. Nothing in this Agreement alters the at-will employment relationship between Employee and Company. Employment with Company is “at-will” which means that either Employee or Company\nmay terminate the employment relationship at any time, with or without notice, with or without cause. The date of Employee’s cessation of employment for any reason is the “Separation Date.”\n3.\nConfidentiality.\n(a)\nEmployee acknowledges and agrees that (1) the retail sale of value-priced/off- price family apparel is an extremely competitive industry; (2) Company has an ongoing strategy for expansion of its business\nin the United States; (3) Company’s major competitors operate throughout the United States and some internationally; and (4) because of Employee’s position as EVPHR, he/she will have access to, knowledge of, and be entrusted with,\nhighly sensitive and competitive Confidential Information (as defined in subsection (b) below) of Company, including without limitation information regarding sales margins, purchasing and pricing strategies, marketing strategies,\nvendors and suppliers, plans for expansion and placement of stores, and also specific information about Company’s districts and stores, such as staffing, budgets, profits and the financial success of individual districts and stores.\n(b)\nAs used herein, “Confidential Information” means and includes any and all Company data and information in any form whatsoever (tangible or intangible) which: (1) relates to the business of Company,\nirrespective of whether the data or information constitutes a “trade secret” (as defined by applicable law); (2) is disclosed to Employee or which Employee obtains or becomes aware of as a consequence of Employee’s relationship with\nCompany; (3) has value to Company; and (4) is not generally known to Company’s competitors. “ Confidential Information” includes (but is not limited to) technical or sales data, formulas, patterns, compilations, programs, devices,\nmethods, techniques, drawings, processes, financial data and\n1\nstatements, financial plans and strategies, product plans, sales or advertising information and plans, marketing information and plans, pricing information, the identity or lists of employees, vendors and suppliers of Company, and\nconfidential or proprietary information of such employees, vendors and suppliers. Employee acknowledges and agrees that all Confidential Information is and remains the sole and exclusive property of Company.\n(c)\nEmployee agrees that he/she shall hold all Confidential Information in strictest confidence, and that he/she shall protect such Confidential Information from disclosure by or to others. Employee further\nagrees that he/she shall not at any time (except as authorized by Company in connection with Employee’s duties and responsibilities as an employee): (1) disclose, publish, transfer, or communicate Confidential Information to any\nperson or entity, other than authorized Company personnel; or (2) use or reproduce Confidential Information for personal benefit or for any purpose or reason other than furthering the legitimate business interest of Company within the\nscope of Employee’s duties with Company; or (3) remove or transfer any Confidential Information from Company’s premises or systems (by any method or means) except for use in Company’s business and consistent with Employee’s\nduties with the Company. The foregoing covenants and obligations are in addition to, and do not limit, any common law or statutory rights and/or protections afforded to Company.\n(d)\nEmployee acknowledges that Company has provided or will provide Employee with Company property, including without limitation, employee handbooks, policy manuals, price lists, financial reports, and\nvendor and supplier information, among other items. Upon the Separation Date, or upon the request of Company, Employee shall immediately deliver to Company all property belonging to Company, including without limitation, all\nConfidential Information and any property related to Company, whether in electronic or other format, as well as any copies thereof, then in Employee’s custody, control or possession. Upon the Separation Date, Employee shall provide\nCompany with a declaration certifying that all Confidential Information and any other Company property have been returned to Company, that Employee has not kept any copies of such items or distributed such items to any third party,\nand that Employee has otherwise complied with the terms of Section 3 of this Agreement.\n4.\nCovenant Not to Compete. Employee agrees that he/she will not, at any point during his/her employment with Company, work for or engage or participate in any business, enterprise, or endeavor that in any way\ncompetes with any aspect of Company’s business or that otherwise conflicts with Company’s interest. In addition, for a period of one (1) year following the Separation Date, and regardless of the reason for separation, Employee shall not,\nwithin the continental United States: (a) become employed by or work for a “Competitor” (as defined below) in any position or capacity involving duties and/or responsibilities which are the same as or substantially similar to any of the\nduties and/or responsibilities Employee had with and/or performed for Company; or (b) perform or provide any services which are the same as or substantially similar to any of the services which Employee performed or provided for the\nCompany, for or on behalf of any Competitor. For purposes of this Section 4, the term “Competitor” shall mean only the following businesses, commonly known as: Cato, TJX (including without limitation TJMAXX and Marshalls),\nBurlington Stores, and Ross Stores.\n2\n5.\nCovenant Not to Solicit. During Employee’s employment with Company, and for a period of eighteen (18) months following the Separation Date, and regardless of the reason for separation, Employee agrees not to\nsolicit any “Merchandise Vendors” (as defined below) for the purpose of obtaining merchandise and/or inventory for or on behalf of any “Competitor” (as defined in Section 4 of this Agreement). As used herein, “Merchandise Vendors”\nmeans and includes any person or entity who/that has been a vendor or supplier of merchandise and/or inventory to Company during the eighteen (18) months immediately preceding the Separation Date or to whom/which Company is\nactively soliciting for the provision of merchandise and/or inventory, and with whom/which Employee had “material contact.” For purposes of this agreement, “material contact” means that Employee either had access to confidential\ninformation regarding the Merchandise Vendor, or was directly involved in negotiations or retention of such Merchandise Vendor.\nEmployee specifically acknowledges and agrees that, as EVPHR, his/her duties include, without limitation, establishing purchasing and pricing strategies and policies, managing sales margins, involvement in establishing\nand maintaining vendor relationships, and having contact with and confidential and/or proprietary information regarding Merchandise Vendors. The non- solicitation restrictions set forth in this Section 5 are specifically limited to\nMerchandise Vendors with whom Employee had contact (whether personally, telephonically, or through written or electronic correspondence) during employment as EVPHR or about whom/which Employee had confidential or\nproprietary information because of his/her position with Company.\n6.\nCovenant Not to Recruit Personnel. During Employee’s employment with Company, and for a period of two (2) years following the Separation Date, and regardless of the reason for separation, Employee will not:\n(a) recruit or solicit to hire or assist others in recruiting or soliciting to hire, any employee of Company; or (b) cause or assist others in causing any employee of Company to terminate an employment relationship with Company.\n7.\nSeverability. If any provision of this Agreement is held invalid, illegal, or otherwise unenforceable, in whole or in part, the remaining provisions, and any partially enforceable provisions to the extent enforceable, shall\nbe binding and remain in full force and effect. Further, each particular prohibition or restriction set forth in any Section of this Agreement shall be deemed a severable unit, and if any court of competent jurisdiction determines that any\nportion of such prohibition or restriction is against the policy of the law in any respect, but such restraint, considered as a whole, is not so clearly unreasonable and overreaching in its terms as to be unconscionable, the court shall enforce\nso much of such restraint as is determined to be reasonably necessary to protect the legitimate interests of Company. Employee and Company expressly agree that, should any court of competent jurisdiction find or determine that any of\nthe covenants contained herein are overly-broad or otherwise unenforceable, the court may “blue- pencil,” modify, and/or reform any such covenant (in whole or in part) so as to cure the over- breadth or to otherwise render the covenant\nenforceable.\n8.\nSurvival of Covenants. All rights and covenants contained in Sections 3, 4, 5, and 6 of this Agreement, and all remedies relating thereto, shall survive the termination of this Agreement for any reason.\n3\n9.\nGoverning Law. All matters affecting this Agreement, including the validity thereof, are to be subject to, and interpreted and construed in accordance with, the laws of the State of Georgia applicable to contracts executed\nin and to be performed in that State.\n10.\nAcknowledgment of Reasonableness/Remedies/Enforcement.\n(a)\nEmployee acknowledges that: (1) Company has valid interests to protect pursuant to Sections 3, 4, 5, and 6 of this Agreement; (2) the breach of the provisions of Sections 3, 4, 5, or 6 of this Agreement\nwould result in irreparable injury and permanent damage to Company; and (3) such restrictions are reasonable and necessary to protect the interests of Company, are critical to the success of Company’s business, and do not cause undue\nhardship on Employee.\n(b)\nEmployee agrees that determining damages in the event of a breach of Sections 3, 4, 5, or 6 by Employee would be difficult and that money damages alone would be an inadequate remedy for the injuries\nand damages which would be suffered by Company from such breach. Therefore, Employee agrees that Company shall be entitled (in addition to any other remedies it may have under this Agreement, at law, or otherwise) to immediate\ninjunctive and other equitable relief to prevent or curtail any such breach by Employee. Employee and Company waive any requirement that a bond or any other security be posted. Nothing in this Agreement shall prohibit Company from\nseeking or recovering any legal or monetary damages to which it may be entitled if Employee breaches any provision in this Agreement.\n11.\nMiscellaneous. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior contracts, agreements, or understandings between the parties which may have been entered into by\nCompany and Employee relating to the subject matter hereof. This Agreement may not be amended or modified in any manner except by an instrument in writing signed by both Company and Employee. The failure of either party to\nenforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of any such provision or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of this\nAgreement shall be held to be a waiver of any other or subsequent breach. All remedies are cumulative, including the right of either party to seek equitable relief in addition to money damages.\nEMPLOYEE ACKNOWLEDGES AND AGREES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND KNOWS AND UNDERSTANDS ITS CONTENTS, THAT HE/SHE ENTERS INTO THIS\nAGREEMENT KNOWINGLY AND VOLUNTARILY, AND THAT HE/SHE INDICATES HIS/HER CONSENT BY SIGNING THIS FINAL PAGE.\n(SIGNATURES TO FOLLOW ON NEXT PAGE)\n4\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the day and year first above written.\nCiti Trends, Inc.\nEmployee Signature\nBy:\nEmployee Residence Address:\nR. Edward Anderson\nChairman and Chief Executive Officer\n5
+5a67c4370c9b6da69651a2f80c7b7f8d.pdf	effective_date jurisdiction party term	28\nAnnex E\nNDA\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) made and entered into this 3 day of July 2005, by and between Common Sense\nLtd., a company organized under the laws of Israel (“Common Sense”) and Synova Healthcare, Inc., a company organized under the laws of the\nState of Delaware with offices at 1400 N. Providence Road, Suite 601, Media, PA 19063, USA (the “Recipient”).\nWITNESSETH\nWHEREAS the parties may enter into discussions regarding a potential business relationship; and\nWHEREAS Common Sense is prepared to disclose to the Recipient certain information relating to Common Sense, which Recipient is to\nreceive solely in order to efficiently conduct the negotiations between the parties; and\nWHEREAS the Parties wish to agree regarding the terms and conditions under which Common Sense is prepared to disclose to the Recipient\nthe Confidential Information (as defined below).\nNOW, THEREFORE, IT IS HEREBY AGREED BY THE PARTIES AS FOLLOWS:\n1. DEFINITIONS.\n1.1. The term “Confidential Information” shall include and mean any and all information, data, diagrams and know-how programs furnished at\nany time by Common Sense to Recipient and Associates, whether in oral, written, graphic or machine-readable form, and which is confidential\nor proprietary in nature or expressed or designated by Common Sense to be proprietary or confidential, whether or not owned or developed by\nCommon Sense, including but not limited to current or projected components, software, hardware, technical and other data, research material,\nBiological and Chemical materials, inventions, discoveries, drawings, plans, concepts, procedures, ideas, diagrams, marketing plans,\nbrochures, photographs, processes, test equipment, test data, specifications, operational data, financial data, methods and techniques.\nNotwithstanding any of the above said, the following shall not be considered Confidential Information: (a) information that was in the public\ndomain at the time it was disclosed other than as a result of a breach by Recipient; (b) information that can be demonstrated by documentary\nevidence to have been known to Recipient at the time of disclosure with no obligation of confidentiality or limitation on use towards Common\nSense; and (c) information that becomes known to Recipient from a source other than Common Sense and its Associates, as demonstrated by\nappropriate documentation, without breach of any obligation of confidence by Recipient or by the party disclosing such information to\nRecipient.\n29\n1.2. The term “Associate” shall mean, as to each party, such party’s agents, representatives, advisors, employees, directors or officers.\n2. NON -DISCLOSURE .\n2.1. General. Recipient acknowledges that the Confidential Information of Common Sense contains valuable trade and technical secrets of\nCommon Sense. Recipient shall not copy (in whole or in part), sell, assign, lease, license, disclose, give or otherwise transfer the Confidential\nInformation or any copy thereof to any third party or otherwise use the Confidential Information other than for the purpose intended under this\nAgreement. Recipient will not alter, modify, disassemble, reverse engineer or de-compile any software or other materials (in any form) or\ndocuments embodying Confidential Information of Common Sense which may be furnished to Recipient, without the express prior written\nconsent of Common Sense. Recipient may disclose the Confidential Information only to its Associates to have a “need to know” such\nConfidential Information in order to enable Recipient to use such Confidential Information for the purpose intended under this Agreement and\nare legally bound not to use or disclose such Confidential Information for any other purpose. Without limiting any other provision hereof,\nRecipient will take all reasonable measures to ensure that any of its Associates receiving Confidential Information of Common Sense shall\ncomply with all of the provisions of this Agreement as if each of them were a party hereto, and hereby assumes full responsibility for such\ncompliance by its Associates. Recipient shall treat Common Sense’s Confidential Information with the same degree of confidentiality as it\nkeeps its own Confidential Information, but in all events no less than a reasonable degree of confidentiality. Recipient shall safeguard any and\nall copies of Common Sense’s Confidential Information against unauthorized disclosure, shall not tamper with, bypass or alter its security\nfeatures or attempt to do so, and shall take all reasonable steps to ensure that the provisions of this Agreement are not violated by any person\nunder Recipient control or in Recipient service. Recipient shall not use the Confidential Information for any purpose other than the purpose set\nforth in this Agreement.\n2.2. Exception. Disclosure of Confidential Information by Recipient if and only to the extent it is compelled to do so by final judicial or\nadministrative order or decree, shall not be deemed a breach hereunder. Recipient shall notify Common Sense immediately after demand for\ndisclosure was presented to it, and shall assist Common Sense, to reasonable extent and upon reimbursement of reasonable expenses, in\nobjecting to such demand.\n3. PROPRIETARY NATURE.\n3.1. Ownership. All Confidential Information is and shall remain the property of Common Sense. The parties acknowledge that all Confidential\nInformation is the sole property of Common Sense and that Recipient shall not acquire any proprietary interest in the Confidential Information.\n3.2. Intellectual Property. Recipient acknowledges that the Confidential Information was designed, developed or otherwise obtained at great\nexpense over lengthy periods of time, and that the Confidential Information is secret, confidential, unique and essential to the business of\nCommon Sense and constitutes the exclusive property and trade secret of Common Sense. All\n30\napplicable rights to mask works, topographies, patents, copyrights, trademarks and trade secrets with respect to the Confidential Information of\nCommon Sense are retained exclusively by Common Sense.\n3.3. Disclaimer. Common Sense makes no representation or warranty as to accuracy, completeness, condition, suitability, or performance of the\nConfidential Information, and Common Sense shall have no liability whatsoever to Recipient resulting from its use of the Confidential\nInformation. Nothing herein shall be construed as creating any obligation on Common Sense to disclose any Confidential Information or to\nenter into any agreement with Recipient on a commercial or any other basis.\n3.4. Acknowledgement. AmniocheckTM Common Sense acknowledges that Recipient is in the process of developing a product known as\nAmniocheckTM. Nothing contained in this agreement shall be deemed to limit, restrict or prohibit the Recipient from developing, marketing,\nmanufacturing and selling Amniocheck or any products derived thereunder.\n4. Return of Confidential Information. Recipient will return all of the Confidential Information in written or other tangible form, including any\ncopies made, to Common Sense together with certification that any other copies or notes or summaries (to the extent including the Confidential\nInformation) have been destroyed, promptly upon the request of Common Sense.\n5. Term and Termination. The provisions of this Agreement shall remain in full force and effect for a period of five (5) years. The provisions of\nSections 1 through 5 of this Agreement shall survive any termination.\n6. Injunctive Relief. The parties acknowledges that Common Sense will be irreparably harmed if Recipient obligations under this Agreement are\nnot specifically enforced and that Common Sense would not have an adequate remedy at law in the event of an actual or threatened violation\nby Recipient of its obligations. Therefore, in addition to all other remedies it may have, Common Sense shall be entitled to an injunction or any\nappropriate decree of specific performance for any actual or threatened violations or breaches by Recipient or Recipient’s employees or agents\nwithout the necessity of Common Sense showing actual damages or that monetary damages would not afford an adequate remedy. Recipient\nshall be directly liable for any and all reasonable attorney’s fees incurred by the Common Sense to enforce this Agreement against Recipient in\nthe courts of component jurisdiction.\n7. Assignment. Recipient shall not assign or otherwise transfer any of its rights or obligations under this Agreement to any third party without\nthe prior written consent of Common Sense.\n8. No Waiver. Failure by a party to enforce any provisions of this Agreement at any time shall in no manner affect the right of that party at a later\ntime to enforce any provision of this Agreement.\n9. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.\n31\n10. Severability. In the event that any word, phrase, clause, sentence or other provision herein shall violate any applicable statute, ordinance or\nrule of law in any jurisdiction which governs this Agreement, such provisions shall be effective to the extent of such violation without\ninvalidating any other provision herein.\n11. Entire Agreement. This Agreement supersedes all previous understandings or agreements between the parties and incorporates the entire\nagreement of the parties with respect to the receipt and use of the Confidential Information. This Agreement may only be amended by a\nwriting of subsequent date that is signed by both parties.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above.\nCommon Sense Ltd.\n[...]\nBy: /s/ Illegible\nBy: /s/ Stephen E. King\nName:\nName: Stephen E. King\nTitle: CEO\nTitle: CEO	28\nAnnex E\nNDA\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) made and entered into this 3 day of July 2005, by and between Common Sense\nLtd., a company organized under the laws of Israel (“Common Sense”) and Synova Healthcare, Inc., a company organized under the laws of the State of Delaware with offices at 1400 N. Providence Road, Suite 601, Media, PA 19063, USA (the “Recipient™). WITNESSETH\nWHEREAS the parties may enter into discussions regarding a potential business relationship; and\nWHEREAS Common Sense is prepared to disclose to the Recipient certain information relating to Common Sense, which Recipient is to\nreceive solely in order to efficiently conduct the negotiations between the parties; and WHEREAS the Parties wish to agree regarding the terms and conditions under which Common Sense is prepared to disclose to the Recipient\nthe Confidential Information (as defined below). NOW, THEREFORE, IT IS HEREBY AGREED BY THE PARTIES AS FOLLOWS:\nDEFINITIONS.\nThe term “Confidential Information” shall include and mean any and all information, data, diagrams and know-how programs furnished at\nany time by Common Sense to Recipient and Associates, whether in oral, written, graphic or machine-readable form, and which is confidential\nor proprietary in nature or expressed or designated by Common Sense to be proprietary or confidential, whether or not owned or developed by\nCommon Sense, including but not limited to current or projected components, software, hardware, technical and other data, research material,\nBiological and Chemical materials, inventions, discoveries, drawings, plans, concepts, procedures, ideas, diagrams, marketing plans,\nbrochures, photographs, processes, test equipment, test data, specifications, operational data, financial data, methods and techniques.\nNotwithstanding any of the above said, the following shall not be considered Confidential Information: (a) information that was in the public\ndomain at the time it was disclosed other than as a result of a breach by Recipient; (b) information that can be demonstrated by documentary\nevidence to have been known to Recipient at the time of disclosure with no obligation of confidentiality or limitation on use towards Common\nSense; and (c) information that becomes known to Recipient from a source other than Common Sense and its Associates, as demonstrated by\nappropriate documentation, without breach of any obligation of confidence by Recipient or by the party disclosing such information to\nRecipient.\n2.2. 3.2. 29\nThe term “Associate” shall mean, as to each party, such party’s agents, representatives, advisors, employees, directors or officers.\nNON-DISCLOSURE.\nGeneral. Recipient acknowledges that the Confidential Information of Common Sense contains valuable trade and technical secrets of\nCommon Sense. Recipient shall not copy (in whole or in part), sell, assign, lease, license, disclose, give or otherwise transfer the Confidential\nInformation or any copy thereof to any third party or otherwise use the Confidential Information other than for the purpose intended under this\nAgreement. Recipient will not alter, modify, disassemble, reverse engineer or de-compile any software or other materials (in any form) or\ndocuments embodying Confidential Information of Common Sense which may be furnished to Recipient, without the express prior written\nconsent of Common Sense. Recipient may disclose the Confidential Information only to its Associates to have a “need to know” such\nConfidential Information in order to enable Recipient to use such Confidential Information for the purpose intended under this Agreement and\nare legally bound not to use or disclose such Confidential Information for any other purpose. Without limiting any other provision hereof,\nRecipient will take all reasonable measures to ensure that any of its Associates receiving Confidential Information of Common Sense shall\ncomply with all of the provisions of this Agreement as if each of them were a party hereto, and hereby assumes full responsibility for such\ncompliance by its Associates. Recipient shall treat Common Sense’s Confidential Information with the same degree of confidentiality as it\nkeeps its own Confidential Information, but in all events no less than a reasonable degree of confidentiality. Recipient shall safeguard any and\nall copies of Common Sense’s Confidential Information against unauthorized disclosure, shall not tamper with, bypass or alter its security\nfeatures or attempt to do so, and shall take all reasonable steps to ensure that the provisions of this Agreement are not violated by any person\nunder Recipient control or in Recipient service. Recipient shall not use the Confidential Information for any purpose other than the purpose set\nforth in this Agreement.\nException. Disclosure of Confidential Information by Recipient if and only to the extent it is compelled to do so by final judicial or\nadministrative order or decree, shall not be deemed a breach hereunder. Recipient shall notify Common Sense immediately after demand for\ndisclosure was presented to it, and shall assist Common Sense, to reasonable extent and upon reimbursement of reasonable expenses, in\nobjecting to such demand.\nPROPRIETARY NATURE.\nOwnership. All Confidential Information is and shall remain the property of Common Sense. The parties acknowledge that all Confidential\nInformation is the sole property of Common Sense and that Recipient shall not acquire any proprietary interest in the Confidential Information.\nIntellectual Property. Recipient acknowledges that the Confidential Information was designed, developed or otherwise obtained at great\nexpense over lengthy periods of time, and that the Confidential Information is secret, confidential, unique and essential to the business of\nCommon Sense and constitutes the exclusive property and trade secret of Common Sense. All\n3.3. 3.4. 30\napplicable rights to mask works, topographies, patents, copyrights, trademarks and trade secrets with respect to the Confidential Information of\nCommon Sense are retained exclusively by Common Sense.\nDisclaimer. Common Sense makes no representation or warranty as to accuracy, completeness, condition, suitability, or performance of the\nConfidential Information, and Common Sense shall have no liability whatsoever to Recipient resulting from its use of the Confidential\nInformation. Nothing herein shall be construed as creating any obligation on Common Sense to disclose any Confidential Information or to\nenter into any agreement with Recipient on a commercial or any other basis.\nAcknowledgement. Amniocheck™ Common Sense acknowledges that Recipient is in the process of developing a product known as\nAmniocheck™. Nothing contained in this agreement shall be deemed to limit, restrict or prohibit the Recipient from developing, marketing,\nmanufacturing and selling Amniocheck or any products derived thereunder.\nReturn of Confidential Information. Recipient will return all of the Confidential Information in written or other tangible form, including any\ncopies made, to Common Sense together with certification that any other copies or notes or summaries (to the extent including the Confidential\nInformation) have been destroyed, promptly upon the request of Common Sense.\nTerm and Termination. The provisions of this Agreement shall remain in full force and effect for a period of five (5) years. The provisions of\nSections 1 through 5 of this Agreement shall survive any termination.\nInjunctive Relief. The parties acknowledges that Common Sense will be irreparably harmed if Recipient obligations under this Agreement are\nnot specifically enforced and that Common Sense would not have an adequate remedy at law in the event of an actual or threatened violation\nby Recipient of its obligations. Therefore, in addition to all other remedies it may have, Common Sense shall be entitled to an injunction or any\nappropriate decree of specific performance for any actual or threatened violations or breaches by Recipient or Recipient’s employees or agents\nwithout the necessity of Common Sense showing actual damages or that monetary damages would not afford an adequate remedy. Recipient\nshall be directly liable for any and all reasonable attorney’s fees incurred by the Common Sense to enforce this Agreement against Recipient in\nthe courts of component jurisdiction.\nAssignment. Recipient shall not assign or otherwise transfer any of its rights or obligations under this Agreement to any third party without\nthe prior written consent of Common Sense.\nNo Waiver. Failure by a party to enforce any provisions of this Agreement at any time shall in no manner affect the right of that party at a later\ntime to enforce any provision of this Agreement.\nGoverning Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.\n31\n10. Severability. In the event that any word, phrase, clause, sentence or other provision herein shall violate any applicable statute, ordinance or\nrule of law in any jurisdiction which governs this Agreement, such provisions shall be effective to the extent of such violation without\ninvalidating any other provision herein.\n11. Entire Agreement. This Agreement supersedes all previous understandings or agreements between the parties and incorporates the entire\nagreement of the parties with respect to the receipt and use of the Confidential Information. This Agreement may only be amended by a\nwriting of subsequent date that is signed by both parties.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above.\nCommon Sense Ltd. [...]\nBy:  /s/Illegible By: /s/ Stephen E. King\nName: Name: Stephen E. King\nTitle: CEO Title: CEO	28\nAnnex E\nNDA\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT ("Agreement") made and entered into this 3 day of July 2005, by and between Common Sense\nLtd., a company organized under the laws of Israel ("Common Sense") and Synova Healthcare, Inc., a company organized under the laws of the\nState of Delaware with offices at 1400 N. Providence Road, Suite 601, Media, PA 19063, USA (the "Recipient").\nWITNESSETH\nWHEREAS the parties may enter into discussions regarding a potential business relationship; and\nWHEREAS Common Sense is prepared to disclose to the Recipient certain information relating to Common Sense, which Recipient is to\nreceive solely in order to efficiently conduct the negotiations between the parties; and\nWHEREAS the Parties wish to agree regarding the terms and conditions under which Common Sense is prepared to disclose to the Recipient\nthe Confidential Information (as defined below).\nNOW, THEREFORE, IT IS HEREBY AGREED BY THE PARTIES AS FOLLOWS:\n1. DEFINITIONS.\n1.1. The term "Confidential Information" shall include and mean any and all information, data, diagrams and know-how programs furnished at\nany time by Common Sense to Recipient and Associates, whether in oral, written, graphic or machine-readable form, and which is confidentia\nor proprietary in nature or expressed or designated by Common Sense to be proprietary or confidential, whether or not owned or developed by\nCommon Sense, including but not limited to current or projected components, software, hardware, technical and other data, research material,\nBiological and Chemical materials, inventions, discoveries, drawings, plans, concepts, procedures, ideas, diagrams, marketing plans,\nbrochures, photographs, processes, test equipment, test data, specifications, operational data, financial data, methods and techniques.\nNotwithstanding any of the above said, the following shall not be considered Confidential Information: (a) information that was in the public\ndomain at the time it was disclosed other than as a result of a breach by Recipient; (b) information that can be demonstrated by documentary\nevidence to have been known to Recipient at the time of disclosure with no obligation of confidentiality or limitation on use towards Common\nSense; and (c) information that becomes known to Recipient from a source other than Common Sense and its Associates, as demonstrated by\nappropriate documentation, without breach of any obligation of confidence by Recipient or by the party disclosing such information to\nRecipient.\n29\n1.2. The term "Associate" shall mean, as to each party, such party's agents, representatives, advisors, employees, directors or officers.\n2. NON-DISCLOSURE.\n2.1. General. Recipient acknowledges that the Confidential Information of Common Sense contains valuable trade and technical secrets of\nCommon Sense. Recipient shall not copy (in whole or in part), sell, assign, lease, license, disclose, give or otherwise transfer the Confidential\nInformation or any copy thereof to any third party or otherwise use the Confidential Information other than for the purpose intended under this\nAgreement. Recipient will not alter, modify, disassemble, reverse engineer or de-compile any software or other materials (in any form) or\ndocuments embodying Confidential Information of Common Sense which may be furnished to Recipient, without the express prior written\nconsent of Common Sense. Recipient may disclose the Confidential Information only to its Associates to have a "need to know" such\nConfidential Information in order to enable Recipient to use such Confidential Information for the purpose intended under this Agreement and\nare legally bound not to use or disclose such Confidential Information for any other purpose. Without limiting any other provision hereof,\nRecipient will take all reasonable measures to ensure that any of its Associates receiving Confidential Information of Common Sense shall\ncomply with all of the provisions of this Agreement as if each of them were a party hereto, and hereby assumes full responsibility for such\ncompliance by its Associates. Recipient shall treat Common Sense's Confidential Information with the same degree of confidentiality as it\nkeeps its own Confidential Information, but in all events no less than a reasonable degree of confidentiality. Recipient shall safeguard any and\nall copies of Common Sense's Confidential Information against unauthorized disclosure, shall not tamper with, bypass or alter its security\nfeatures or attempt to do so, and shall take all reasonable steps to ensure that the provisions of this Agreement are not violated by any person\nunder Recipient control or in Recipient service. Recipient shall not use the Confidential Information for any purpose other than the purpose set\nforth in this Agreement.\n2.2. Exception. Disclosure of Confidential Information by Recipient if and only to the extent it is compelled to do so by final judicial or\nadministrative order or decree, shall not be deemed a breach hereunder. Recipient shall notify Common Sense immediately after demand for\ndisclosure was presented to it, and shall assist Common Sense, to reasonable extent and upon reimbursement of reasonable expenses, in\nobjecting to such demand.\n3.\nPROPRIETARY NATURE.\n3.1. Ownership. All Confidential Information is and shall remain the property of Common Sense. The parties acknowledge that all Confidential\nInformation is the sole property of Common Sense and that Recipient shall not acquire any proprietary interest in the Confidential Information.\n3.2. Intellectual Property. Recipient acknowledges that the Confidential Information was designed, developed or otherwise obtained at great\nexpense over lengthy periods of time, and that the Confidential Information is secret, confidential, unique and essential to the business of\nCommon Sense and constitutes the exclusive property and trade secret of Common Sense. All\n30\napplicable rights to mask works, topographies, patents, copyrights, trademarks and trade secrets with respect to the Confidential Information of\nCommon Sense are retained exclusively by Common Sense.\n3.3. Disclaimer. Common Sense makes no representation or warranty as to accuracy, completeness, condition, suitability, or performance of the\nConfidential Information, and Common Sense shall have no liability whatsoever to Recipient resulting from its use of the Confidential\nInformation. Nothing herein shall be construed as creating any obligation on Common Sense to disclose any Confidential Information or\nto\nenter into any agreement with Recipient on a commercial or any other basis.\n3.4. Acknowledgement. AmniocheckT Common Sense acknowledges that Recipient is in the process of developing a product known as\nAmniocheckTN Nothing contained in this agreement shall be deemed to limit, restrict or prohibit the Recipient from developing, marketing,\nmanufacturing and selling Amniocheck or any products derived thereunder.\n4.\nReturn\nof\nConfidential\nInformation.\nRecipient\nwill\nreturn\nall\nof\nthe\nConfidential\nInformation\nin\nwritten\nor\nother\ntangible\nform,\nincluding\nany\ncopies made, to Common Sense together with certification that any other copies or notes or summaries (to the extent including the Confidential\nInformation) have been destroyed, promptly upon the request of Common Sense.\n5. Term and Termination. The provisions of this Agreement shall remain in full force and effect for a period of five (5) years. The provisions of\nSections 1 through 5 of this Agreement shall survive any termination.\n6.\nInjunctive Relief. The parties acknowledges that Common Sense will be irreparably harmed if Recipient obligations under this Agreement are\nnot specifically enforced and that Common Sense would not have an adequate remedy at law in the event of an actual or threatened violation\nby Recipient of its obligations. Therefore, in addition to all other remedies it may have, Common Sense shall be entitled to an injunction or any\nappropriate decree of specific performance for any actual or threatened violations or breaches by Recipient or Recipient's employees or agents\nwithout the necessity of Common Sense showing actual damages or that monetary damages would not afford an adequate remedy. Recipient\nshall be directly liable for any and all reasonable attorney's fees incurred by the Common Sense to enforce this Agreement against Recipient\nin\nthe courts of component jurisdiction.\n7.\nAssignment. Recipient shall not assign or otherwise transfer any of its rights or obligations under this Agreement to any third party without\nthe prior written consent of Common Sense.\n8.\nNo Waiver. Failure by a party to enforce any provisions of this Agreement at any time shall in no manner affect the right of that party at a later\ntime to enforce any provision of this Agreement.\n9.\nGoverning Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.\n31\n10.\nSeverability. In the event that any word, phrase, clause, sentence or other provision herein shall violate any applicable statute, ordinance or\nrule of law in any jurisdiction which governs this Agreement, such provisions shall be effective to the extent of such violation without\ninvalidating any other provision herein.\n11.\nEntire Agreement This Agreement supersedes all previous understandings or agreements between the parties and incorporates the entire\nagreement of the parties with respect to the receipt and use of the Confidential Information. This Agreement may only be amended by a\nwriting of subsequent date that is signed by both parties.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above.\nCommon Sense Ltd.\n[...]\nBy:\n/s/ Illegible\nBy:\n/s/ Stephen E. King\nName:\nName: Stephen E. King\nTitle: CEO\nTitle: CEO	28\nAnnex E\nNDA\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) made and entered into this 3 day of July 2005, by and between Common Sense\nLtd., a company organized under the laws of Israel (“Common Sense”) and Synova Healthcare, Inc., a company organized under the laws of the\nState of Delaware with offices at 1400 N. Providence Road, Suite 601, Media, PA 19063, USA (the “Recipient”).\nWITNESSETH\nWHEREAS the parties may enter into discussions regarding a potential business relationship; and\nWHEREAS Common Sense is prepared to disclose to the Recipient certain information relating to Common Sense, which Recipient is to\nreceive solely in order to efficiently conduct the negotiations between the parties; and\nWHEREAS the Parties wish to agree regarding the terms and conditions under which Common Sense is prepared to disclose to the Recipient\nthe Confidential Information (as defined below).\nNOW, THEREFORE, IT IS HEREBY AGREED BY THE PARTIES AS FOLLOWS:\n1. DEFINITIONS.\n1.1. The term “Confidential Information” shall include and mean any and all information, data, diagrams and know-how programs furnished at\nany time by Common Sense to Recipient and Associates, whether in oral, written, graphic or machine-readable form, and which is confidential\nor proprietary in nature or expressed or designated by Common Sense to be proprietary or confidential, whether or not owned or developed by\nCommon Sense, including but not limited to current or projected components, software, hardware, technical and other data, research material,\nBiological and Chemical materials, inventions, discoveries, drawings, plans, concepts, procedures, ideas, diagrams, marketing plans,\nbrochures, photographs, processes, test equipment, test data, specifications, operational data, financial data, methods and techniques.\nNotwithstanding any of the above said, the following shall not be considered Confidential Information: (a) information that was in the public\ndomain at the time it was disclosed other than as a result of a breach by Recipient; (b) information that can be demonstrated by documentary\nevidence to have been known to Recipient at the time of disclosure with no obligation of confidentiality or limitation on use towards Common\nSense; and (c) information that becomes known to Recipient from a source other than Common Sense and its Associates, as demonstrated by\nappropriate documentation, without breach of any obligation of confidence by Recipient or by the party disclosing such information to\nRecipient.\n29\n1.2. The term “Associate” shall mean, as to each party, such party’s agents, representatives, advisors, employees, directors or officers.\n2. NON -DISCLOSURE .\n2.1. General. Recipient acknowledges that the Confidential Information of Common Sense contains valuable trade and technical secrets of\nCommon Sense. Recipient shall not copy (in whole or in part), sell, assign, lease, license, disclose, give or otherwise transfer the Confidential\nInformation or any copy thereof to any third party or otherwise use the Confidential Information other than for the purpose intended under this\nAgreement. Recipient will not alter, modify, disassemble, reverse engineer or de-compile any software or other materials (in any form) or\ndocuments embodying Confidential Information of Common Sense which may be furnished to Recipient, without the express prior written\nconsent of Common Sense. Recipient may disclose the Confidential Information only to its Associates to have a “need to know” such\nConfidential Information in order to enable Recipient to use such Confidential Information for the purpose intended under this Agreement and\nare legally bound not to use or disclose such Confidential Information for any other purpose. Without limiting any other provision hereof,\nRecipient will take all reasonable measures to ensure that any of its Associates receiving Confidential Information of Common Sense shall\ncomply with all of the provisions of this Agreement as if each of them were a party hereto, and hereby assumes full responsibility for such\ncompliance by its Associates. Recipient shall treat Common Sense’s Confidential Information with the same degree of confidentiality as it\nkeeps its own Confidential Information, but in all events no less than a reasonable degree of confidentiality. Recipient shall safeguard any and\nall copies of Common Sense’s Confidential Information against unauthorized disclosure, shall not tamper with, bypass or alter its security\nfeatures or attempt to do so, and shall take all reasonable steps to ensure that the provisions of this Agreement are not violated by any person\nunder Recipient control or in Recipient service. Recipient shall not use the Confidential Information for any purpose other than the purpose set\nforth in this Agreement.\n2.2. Exception. Disclosure of Confidential Information by Recipient if and only to the extent it is compelled to do so by final judicial or\nadministrative order or decree, shall not be deemed a breach hereunder. Recipient shall notify Common Sense immediately after demand for\ndisclosure was presented to it, and shall assist Common Sense, to reasonable extent and upon reimbursement of reasonable expenses, in\nobjecting to such demand.\n3. PROPRIETARY NATURE.\n3.1. Ownership. All Confidential Information is and shall remain the property of Common Sense. The parties acknowledge that all Confidential\nInformation is the sole property of Common Sense and that Recipient shall not acquire any proprietary interest in the Confidential Information.\n3.2. Intellectual Property. Recipient acknowledges that the Confidential Information was designed, developed or otherwise obtained at great\nexpense over lengthy periods of time, and that the Confidential Information is secret, confidential, unique and essential to the business of\nCommon Sense and constitutes the exclusive property and trade secret of Common Sense. All\n30\napplicable rights to mask works, topographies, patents, copyrights, trademarks and trade secrets with respect to the Confidential Information of\nCommon Sense are retained exclusively by Common Sense.\n3.3. Disclaimer. Common Sense makes no representation or warranty as to accuracy, completeness, condition, suitability, or performance of the\nConfidential Information, and Common Sense shall have no liability whatsoever to Recipient resulting from its use of the Confidential\nInformation. Nothing herein shall be construed as creating any obligation on Common Sense to disclose any Confidential Information or to\nenter into any agreement with Recipient on a commercial or any other basis.\n3.4. Acknowledgement. AmniocheckTM Common Sense acknowledges that Recipient is in the process of developing a product known as\nAmniocheckTM. Nothing contained in this agreement shall be deemed to limit, restrict or prohibit the Recipient from developing, marketing,\nmanufacturing and selling Amniocheck or any products derived thereunder.\n4. Return of Confidential Information. Recipient will return all of the Confidential Information in written or other tangible form, including any\ncopies made, to Common Sense together with certification that any other copies or notes or summaries (to the extent including the Confidential\nInformation) have been destroyed, promptly upon the request of Common Sense.\n5. Term and Termination. The provisions of this Agreement shall remain in full force and effect for a period of five (5) years. The provisions of\nSections 1 through 5 of this Agreement shall survive any termination.\n6. Injunctive Relief. The parties acknowledges that Common Sense will be irreparably harmed if Recipient obligations under this Agreement are\nnot specifically enforced and that Common Sense would not have an adequate remedy at law in the event of an actual or threatened violation\nby Recipient of its obligations. Therefore, in addition to all other remedies it may have, Common Sense shall be entitled to an injunction or any\nappropriate decree of specific performance for any actual or threatened violations or breaches by Recipient or Recipient’s employees or agents\nwithout the necessity of Common Sense showing actual damages or that monetary damages would not afford an adequate remedy. Recipient\nshall be directly liable for any and all reasonable attorney’s fees incurred by the Common Sense to enforce this Agreement against Recipient in\nthe courts of component jurisdiction.\n7. Assignment. Recipient shall not assign or otherwise transfer any of its rights or obligations under this Agreement to any third party without\nthe prior written consent of Common Sense.\n8. No Waiver. Failure by a party to enforce any provisions of this Agreement at any time shall in no manner affect the right of that party at a later\ntime to enforce any provision of this Agreement.\n9. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.\n31\n10. Severability. In the event that any word, phrase, clause, sentence or other provision herein shall violate any applicable statute, ordinance or\nrule of law in any jurisdiction which governs this Agreement, such provisions shall be effective to the extent of such violation without\ninvalidating any other provision herein.\n11. Entire Agreement. This Agreement supersedes all previous understandings or agreements between the parties and incorporates the entire\nagreement of the parties with respect to the receipt and use of the Confidential Information. This Agreement may only be amended by a\nwriting of subsequent date that is signed by both parties.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above.\nCommon Sense Ltd.\n[...]\nBy: /s/ Illegible\nBy: /s/ Stephen E. King\nName:\nName: Stephen E. King\nTitle: CEO\nTitle: CEO
+5be1ea607c7763ae42c61e9fc0fa2ec1.pdf	effective_date jurisdiction party term	EX-10.6 7 d937352dex106.htm EX-10.6\nExhibit 10.6\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis confidentiality and non-disclosure agreement (the “Agreement”) is made and entered into as of June 23, 2015, by and between Consac,\nLLC (the “Recipient”), and MusclePharm Corporation, a Nevada corporation (the “Company”). Each of the Recipient and the Company is\nsometimes referred to herein as a “Party” and collectively as “Parties.”\nWHEREAS, the Recipient is desirous of obtaining certain Confidential Information from the Company in connection with a potential\ntransaction between the Company and the Recipient (a “Possible Transaction”);\nWHEREAS, in connection with Recipient’s evaluation of a Possible Transaction the Company may disclose certain confidential\ninformation concerning the Company and/or its affiliates to the Recipient; and\nWHEREAS, the Recipient agrees that it shall use such Confidential Information and refrain from disclosing or making use of such\nConfidential Information, all in accordance with the terms of this Agreement.\nNOW THEREFORE, the parties mutually agree to the following:\n1. Recipient shall be responsible for the conduct of its Representatives and Affiliate Entities (as such terms are hereinafter defined) regarding\nthe confidentiality and use of the Confidential Information. The Recipient shall only disclose the Confidential Information to its directors,\nofficers or employees or parties consented to by the Company pursuant to Section 5 who are bound by confidentiality obligations that are at\nleast as restrictive as the terms of this Agreement and who have a reasonable need to review the Confidential Information in connection\nwith the consideration, evaluation and negotiation of a Possible Transaction (collectively, the “Representatives”). Any disclosure of\nConfidential Information shall not be deemed to grant a license or right to the Recipient or any Representative or Affiliated Entities to use\nConfidential Information for any purpose other than as set forth herein.\n2. For the purpose of this Agreement, “Confidential Information” shall mean any and all commercial, business, financial, technical and/or\nother information relating to the Company and/or its affiliates, including, but not limited to, financial data, statistical information,\nmarketing, and/or product development plans or procedures, trade secrets, real estate information, personnel information and/or other data\ndisclosed to the Recipient pursuant hereto in connection with a Possible Transaction or otherwise, without regard to whether such\ninformation was communicated in writing, orally, visually or by other means, together with all analyses, compilations, studies, or other\ndocuments prepared by Recipient or its Representatives which reflect or are generated from such information.\n3. Subject to the terms and provisions of this Agreement, Recipient agrees to hold in confidence and not to reveal, report, publish, disclose or\ntransfer, directly or indirectly, any of the Confidential Information of the Company to any third party or use any of the Company’s\nConfidential Information for any purpose at any time except as\nConfidential\nnecessary to evaluate a Possible Transaction. The Recipient, its Representatives and Affiliated Entities shall use the Confidential\nInformation in accordance with the terms of this Agreement. All Confidential Information shall remain the sole property of the Company.\nAt any time upon the request of the Company, Recipient will promptly return to the Company or destroy all Confidential Information (in\nany media), including any copies as well as all materials (in any media) which contain or embody Confidential Information, and, with\nrespect to abstracts or summaries of Confidential Information that Recipient may have made, Recipient will destroy such abstracts or\nsummaries and will provide a written declaration from an authorized officer certifying that it has done so. Notwithstanding the preceding\nsentence, Recipient (i) may retain one copy of any portion of the Confidential Information that Recipient has been advised by their counsel\nis required to retain by applicable law, rule or regulation or their internal compliance policies and (ii) shall not be obligated to erase\nConfidential Information contained in an electronic archiving or backup system operating in the ordinary course of business. In the case of\neach of (i) and (ii) in the preceding sentence, Recipient, its Representatives and Affiliate Entitles will continue to keep the Confidential\nInformation confidential in accordance with the terms of this Agreement. Notwithstanding the foregoing, the destruction of any\nConfidential Information does not affect any of the Recipient’s obligations hereunder and the Confidential Information, whether or not\ndestroyed, will remain subject to the restrictions herein. In connection with the obligations under this Agreement, Recipient shall maintain\nthe confidentiality of the Confidential Information with at least the same degree of care that it uses to protect its own confidential\ninformation, but no less than a reasonable degree of care under the circumstances.\n4. Except as may be required by law, including securities laws, without the prior written consent of the other Party, neither Party shall, and\neach Party shall direct its Representatives not to, disclose to any person or entity (other than its Representatives) (a) that any investigations,\ndiscussions or negotiations are taking place (including, without limitation, concerning a Possible Transaction involving the Company and\nthe Recipient), (b) that Recipient has requested or received any Confidential Information, (c) the terms of this Agreement, or (d) any of the\nterms, conditions, negotiations, discussions or other facts (including, without limitation, with respect to a Possible Transaction, including\nthe status thereof).\n5. Without the prior written consent of the Company, Recipient shall not, and shall direct its Representatives and Affiliate Entitles (as defined\nin Section 9 below) not to disclose any Confidential Information to any third parties (including, without limitation, in connection with a\nPossible Transaction, or otherwise discuss a Possible Transaction with, or disclose a Possible Transaction to, any third parties. Recipient\nrepresents and covenants that Recipient does not have (and will not enter into) (a) any agreement or understanding with any other person\nthat such person will refrain from bidding on or participating in a Possible Transaction with the Company, (b) any agreement pursuant to\nwhich any other person will have a right to participate in a Possible Transaction with the Company involving the Recipient if the Recipient\nis successful in consummating a Possible Transaction with the Company or (c) any agreement or arrangement with any potential debt or\nequity financing sources which may reasonably be expected to limit such financing source from acting as a financing source for any other\npotential acquirer or participant in a Possible Transaction with the Company.\nConfidential\n2\n6. Due to the unique confidential, proprietary, unique and valuable nature of the Confidential Information, Recipient acknowledges and agrees\nthat in the event Recipient fails to comply with its obligations hereunder, that monetary damages may be inadequate to compensate the\nCompany. Accordingly, Recipient agrees that the Company shall, in addition to any other remedies available to it at law or in equity, be\nentitled to seek injunctive relief to enforce the terms of Sections 2, 3, 4 and 5 of this Agreement.\n7. Notwithstanding anything herein to the contrary, Confidential Information shall not include any information which (a) at the time of its\ndisclosure or thereafter is generally available to or known to the public other than as a result of a disclosure by the Recipient or its\nrepresentatives in breach of this Agreement, (b) was or becomes available to the Recipient, on a non-confidential basis from a source other\nthan the Company, (c) is shown by written dated records (or any other evidence or documentary media) to have been independently\nacquired or developed by Recipient without breaching this Agreement, (d) is shown by written dated records (or any other evidence or\ndocumentary media) to have been lawfully in the possession of or known to the Recipient prior to disclosure by the Company, or\n(e) Recipient is compelled by court or government action pursuant to applicable law to disclose, provided, however, that Recipient gives\nthe Company prompt notice thereof so that the Company may seek a protective order or other appropriate remedy.\n8. The Recipient acknowledges that the Company is a publicly traded company. As such, the Recipient agrees not to use any material non-\npublic Confidential Information in connection with the purchase or sale of the securities of the Company. The Recipient further\nacknowledges that such use may constitute a violation of securities laws.\n9. The Recipient acknowledges that, in its examination of the Confidential Information, it will be given access to material non-public\ninformation concerning the Company. In consideration of receipt of that information, for a period of the later of (A) twelve months from\nthe date of this Agreement and (B) the date on which the 2016 annual meeting of the Company’s shareholders is held (which shall be held\nno later than December 31, 2016) (the “Standstill Period”) the Recipient on behalf of itself, its parent and subsidiary entities and entities\nunder common control therewith (the “Affiliate Entities”), hereby agrees that each of the Recipient and the Affiliated Entities shall not,\nother than as authorized in writing by the Company: (i) in any manner acquire, whether from the Company or a third party, directly or\nindirectly (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as\namended (“Exchange Act”)) of any additional voting securities or other equity interests in the Company or all or substantially all of the\nassets of the Company; (ii) enter into, directly or indirectly, any merger or business combination involving the Company; (iii) solicit\nproxies or consents, directly or indirectly, or become a “participant” in any “solicitation” (as such terms are defined in Regulation 14A\nunder the Exchange Act) of proxies or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting\nsecurities of the Company; (iv) with respect to any voting securities of the Company, (a) form or join any “group” (within the meaning of\nSection 13(d)(3) of the Exchange Act) after the date of this agreement that would be required under the Exchange Act to file a statement on\nSchedule 13D or Schedule 13G if such group had not previously filed such statement or otherwise require an amendment to such statement\nif such a\nConfidential\n3\nstatement has been filed prior to the date hereof or (b) in the event that the Recipient or any of the Recipient’s Affiliated Entities have\nformed or joined any such group prior to the date hereof, participate in or benefit from any additional action by such group or any member\nthereof after the date of this agreement that (1) would constitute a violation of this paragraph if undertaken by the Recipient alone or\n(2) would require such group to file a statement on Schedule 13D or Schedule 13G if such group had not previously filed such a statement\nor otherwise require an amendment to such statement if such a statement has been filed prior to the date hereof; (v) otherwise act, alone or\nin concert with others, to seek to control the management, Board of Directors or policies of the Company; (vi) initiate any communications\nconcerning the Confidential Information or a Possible Transaction with any employee of the Company (other than Brad Pyatt, Chief\nExecutive Officer of the Company) except as contemplated by this Agreement; (vii) publicly disclose any intention, plan or arrangement\ninconsistent with any of the foregoing; (viii) advise, assist or encourage any other person in connection with any of the foregoing or\n(ix) other than as authorized be this letter agreement or any definitive agreement relating to a Possible Transaction executed by the Parties\nor their affiliates, take any action that would legally require the Company to make a public announcement regarding a business\ncombination, merger, sale of all or substantially all of its assets, liquidation or other extraordinary corporate transaction involving the\nCompany.\nNotwithstanding any of the foregoing, Recipient shall be permitted to purchase securities currently held by Wynnefield Capital, Inc. and its\naffiliates.\n10. This Agreement shall be binding upon and inure to the benefit of the parties, their subsidiaries, and their respective successors. No\nassignment or modification of this Agreement may be made by any party without the prior written consent of the other party, which consent\nmay be granted or denied in such other party’s sole discretion. This Agreement shall not create any obligation on any party hereof to enter\ninto any agreement between the Company and the Recipient or any other agreement or to negotiate or discuss any of the foregoing. In\naddition, the furnishing of Confidential Information hereunder shall not obligate either Party to (i) enter into any further agreement or\nnegotiation with the other or (ii) to continue any negotiations, in good faith or provide any information or (iii) to refrain from entering into\nan agreement or negotiation with any other person, including without limitation any other person engaged in the same or a similar line of\nbusiness as the other party hereto. Neither party shall have any liability to the other resulting from the use of or reliance upon the\nConfidential Information.\n11. This Agreement contains the full and complete understanding of the parties with respect to the subject matter hereof and supersedes all\nprior representations and understandings regarding the subject matter hereof, whether oral or written. Failure to exercise or delay in\nexercising any remedy hereunder shall not be deemed a waiver thereof. Each party represents that this Agreement is being signed by a duly\nauthorized officer.\nConfidential\n4\n12. This Agreement may be signed in counterparts, each of which shall for all purposes be deemed an original, and together shall constitute\none and the same instrument. This Agreement shall expire twelve months from the effective date hereof. Notwithstanding the foregoing,\nand without altering the rights and obligations of the parties with respect to any Confidential Information provided prior thereto, each Party\nreserves the right at any time to notify the other Party in writing that it no longer desires to provide or receive additional Confidential\nInformation under this Agreement, and no Confidential Information provided after such notice is received shall be considered Confidential\nInformation hereunder. Any claim for breach of this Agreement must be made and filed within twelve months of actual notice of the\nalleged breach.\n13. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed\nand enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof.\nEach party agrees that all legal proceedings concerning the interpretations, enforcement and defense of a Possible Transactions\ncontemplated by this Agreement (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders,\nemployees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby\nirrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan for\nthe adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein\n(including with respect to the enforcement of this Agreement), and hereby irrevocably waives, and agrees not to assert in any suit, action or\nproceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper\nor is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process\nbeing served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with\nevidence of delivery) to such party at the address in effect for notices to it (as shown on the signature page hereto and as may be changed\nfrom time to time by notice to the other Party) under this Agreement and agrees that such service shall constitute good and sufficient\nservice of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other\nmanner permitted by law. The Parties waive any right to a jury trial and any right to consolidation with a cause of action involving a jury\ntrial. A Party shall use reasonable commercial efforts to mitigate or reduce any damages or claims relating to a breach of this Agreement by\nthe other Party.\n14. If Recipient or its Representatives disclose any information concerning Recipient’s or its Representatives’ business or operations to the\nCompany or its Representatives, the Parties agree that (i) any information so disclosed shall constitute “Confidential Information”\nhereunder, and (ii) Recipient and its Representatives shall have mutual mirror reciprocal rights and benefits to the rights and benefits of the\nCompany provided by the foregoing provisions of this letter agreement.\nConfidential\n5\nIn witness whereof the undersigned have executed this Agreement as of the date first written above.\nMusclepharm\nBy:\nLOGO\nName: Brad Pyatt\nTitle: Chairman and CEO\nDate: June 23, 2015\nWith an address of:\n4721 Ironton Street, Building A\nDenver, CO 80239\nConsac, LLC\nBy:\nLOGO\nName: Ryan Drexler\nTitle: President\nDate: June 23, 2015\nWith an address of:\n525 Chalette Drive\nBeverly Hills, California 90211\nConfidential\n6	EX-10.6 7 d937352dex106.htm EX-10.6\nExhibit 10.6\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis confidentiality and non-disclosure agreement (the “Agreement”) is made and entered into as of June 23, 2015, by and between Consac,\nLLC (the “Recipient”), and MusclePharm Corporation, a Nevada corporation (the “Company”). Each of the Recipient and the Company is\nsometimes referred to herein as a “Party” and collectively as “Parties.”\nWHEREAS, the Recipient is desirous of obtaining certain Confidential Information from the Company in connection with a potential\ntransaction between the Company and the Recipient (a “Possible Transaction”);\nWHEREAS, in connection with Recipient’s evaluation of a Possible Transaction the Company may disclose certain confidential\ninformation concerning the Company and/or its affiliates to the Recipient; and\nWHEREAS, the Recipient agrees that it shall use such Confidential Information and refrain from disclosing or making use of such\nConfidential Information, all in accordance with the terms of this Agreement.\nNOW THEREFORE, the parties mutually agree to the following:\n1. Recipient shall be responsible for the conduct of its Representatives and Affiliate Entities (as such terms are hereinafter defined) regarding\nthe confidentiality and use of the Confidential Information. The Recipient shall only disclose the Confidential Information to its directors,\nofficers or employees or parties consented to by the Company pursuant to Section 5 who are bound by confidentiality obligations that are at\nleast as restrictive as the terms of this Agreement and who have a reasonable need to review the Confidential Information in connection\nwith the consideration, evaluation and negotiation of a Possible Transaction (collectively, the “Representatives”). Any disclosure of\nConfidential Information shall not be deemed to grant a license or right to the Recipient or any Representative or Affiliated Entities to use\nConfidential Information for any purpose other than as set forth herein.\n2. For the purpose of this Agreement, “Confidential Information” shall mean any and all commercial, business, financial, technical and/or\nother information relating to the Company and/or its affiliates, including, but not limited to, financial data, statistical information,\nmarketing, and/or product development plans or procedures, trade secrets, real estate information, personnel information and/or other data\ndisclosed to the Recipient pursuant hereto in connection with a Possible Transaction or otherwise, without regard to whether such\ninformation was communicated in writing, orally, visually or by other means, together with all analyses, compilations, studies, or other\ndocuments prepared by Recipient or its Representatives which reflect or are generated from such information.\n3. Subject to the terms and provisions of this Agreement, Recipient agrees to hold in confidence and not to reveal, report, publish, disclose or\ntransfer, directly or indirectly, any of the Confidential Information of the Company to any third party or use any of the Company’s\nConfidential Information for any purpose at any time except as\nConfidential\nnecessary to evaluate a Possible Transaction. The Recipient, its Representatives and Affiliated Entities shall use the Confidential\nInformation in accordance with the terms of this Agreement. All Confidential Information shall remain the sole property of the Company.\nAt any time upon the request of the Company, Recipient will promptly return to the Company or destroy all Confidential Information (in\nany media), including any copies as well as all materials (in any media) which contain or embody Confidential Information, and, with\nrespect to abstracts or summaries of Confidential Information that Recipient may have made, Recipient will destroy such abstracts or\nsummaries and will provide a written declaration from an authorized officer certifying that it has done so. Notwithstanding the preceding\nsentence, Recipient (i) may retain one copy of any portion of the Confidential Information that Recipient has been advised by their counsel\nis required to retain by applicable law, rule or regulation or their internal compliance policies and (ii) shall not be obligated to erase\nConfidential Information contained in an electronic archiving or backup system operating in the ordinary course of business. In the case of\neach of (i) and (ii) in the preceding sentence, Recipient, its Representatives and Affiliate Entitles will continue to keep the Confidential\nInformation confidential in accordance with the terms of this Agreement. Notwithstanding the foregoing, the destruction of any\nConfidential Information does not affect any of the Recipient’s obligations hereunder and the Confidential Information, whether or not\ndestroyed, will remain subject to the restrictions herein. In connection with the obligations under this Agreement, Recipient shall maintain\nthe confidentiality of the Confidential Information with at least the same degree of care that it uses to protect its own confidential\ninformation, but no less than a reasonable degree of care under the circumstances.\nExcept as may be required by law, including securities laws, without the prior written consent of the other Party, neither Party shall, and\neach Party shall direct its Representatives not to, disclose to any person or entity (other than its Representatives) (a) that any investigations,\ndiscussions or negotiations are taking place (including, without limitation, concerning a Possible Transaction involving the Company and\nthe Recipient), (b) that Recipient has requested or received any Confidential Information, (c) the terms of this Agreement, or (d) any of the\nterms, conditions, negotiations, discussions or other facts (including, without limitation, with respect to a Possible Transaction, including\nthe status thereof).\nWithout the prior written consent of the Company, Recipient shall not, and shall direct its Representatives and Affiliate Entitles (as defined\nin Section 9 below) not to disclose any Confidential Information to any third parties (including, without limitation, in connection with a\nPossible Transaction, or otherwise discuss a Possible Transaction with, or disclose a Possible Transaction to, any third parties. Recipient\nrepresents and covenants that Recipient does not have (and will not enter into) (a) any agreement or understanding with any other person\nthat such person will refrain from bidding on or participating in a Possible Transaction with the Company, (b) any agreement pursuant to\nwhich any other person will have a right to participate in a Possible Transaction with the Company involving the Recipient if the Recipient\nis successful in consummating a Possible Transaction with the Company or (c) any agreement or arrangement with any potential debt or\nequity financing sources which may reasonably be expected to limit such financing source from acting as a financing source for any other\npotential acquirer or participant in a Possible Transaction with the Company.\nConfidential\nDue to the unique confidential, proprietary, unique and valuable nature of the Confidential Information, Recipient acknowledges and agrees\nthat in the event Recipient fails to comply with its obligations hereunder, that monetary damages may be inadequate to compensate the\nCompany. Accordingly, Recipient agrees that the Company shall, in addition to any other remedies available to it at law or in equity, be\nentitled to seek injunctive relief to enforce the terms of Sections 2, 3, 4 and 5 of this Agreement.\nNotwithstanding anything herein to the contrary, Confidential Information shall not include any information which (a) at the time of its\ndisclosure or thereafter is generally available to or known to the public other than as a result of a disclosure by the Recipient or its\nrepresentatives in breach of this Agreement, (b) was or becomes available to the Recipient, on a non-confidential basis from a source other\nthan the Company, (c) is shown by written dated records (or any other evidence or documentary media) to have been independently\nacquired or developed by Recipient without breaching this Agreement, (d) is shown by written dated records (or any other evidence or\ndocumentary media) to have been lawfully in the possession of or known to the Recipient prior to disclosure by the Company, or\n(e) Recipient is compelled by court or government action pursuant to applicable law to disclose, provided, however, that Recipient gives\nthe Company prompt notice thereof so that the Company may seek a protective order or other appropriate remedy.\nThe Recipient acknowledges that the Company is a publicly traded company. As such, the Recipient agrees not to use any material non-\npublic Confidential Information in connection with the purchase or sale of the securities of the Company. The Recipient further\nacknowledges that such use may constitute a violation of securities laws.\nThe Recipient acknowledges that, in its examination of the Confidential Information, it will be given access to material non-public\ninformation concerning the Company. In consideration of receipt of that information, for a period of the later of (A) twelve months from\nthe date of this Agreement and (B) the date on which the 2016 annual meeting of the Company’s shareholders is held (which shall be held\nno later than December 31, 2016) (the “Standstill Period”) the Recipient on behalf of itself, its parent and subsidiary entities and entities\nunder common control therewith (the “Affiliate Entities”), hereby agrees that each of the Recipient and the Affiliated Entities shall not,\nother than as authorized in writing by the Company: (i) in any manner acquire, whether from the Company or a third party, directly or\nindirectly (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as\namended (“Exchange Act”)) of any additional voting securities or other equity interests in the Company or all or substantially all of the\nassets of the Companys; (ii) enter into, directly or indirectly, any merger or business combination involving the Company; (iii) solicit\nproxies or consents, directly or indirectly, or become a “participant” in any “solicitation” (as such terms are defined in Regulation 14A\nunder the Exchange Act) of proxies or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting\nsecurities of the Company; (iv) with respect to any voting securities of the Company, (a) form or join any “group” (within the meaning of\nSection 13(d)(3) of the Exchange Act) after the date of this agreement that would be required under the Exchange Act to file a statement on\nSchedule 13D or Schedule 13G if such group had not previously filed such statement or otherwise require an amendment to such statement\nif such a\nConfidential\n10. 11. statement has been filed prior to the date hereof or (b) in the event that the Recipient or any of the Recipient’s Affiliated Entities have\nformed or joined any such group prior to the date hereof, participate in or benefit from any additional action by such group or any member\nthereof after the date of this agreement that (1) would constitute a violation of this paragraph if undertaken by the Recipient alone or\n(2) would require such group to file a statement on Schedule 13D or Schedule 13G if such group had not previously filed such a statement\nor otherwise require an amendment to such statement if such a statement has been filed prior to the date hereof; (v) otherwise act, alone or\nin concert with others, to seek to control the management, Board of Directors or policies of the Company; (vi) initiate any communications\nconcerning the Confidential Information or a Possible Transaction with any employee of the Company (other than Brad Pyatt, Chief\nExecutive Officer of the Company) except as contemplated by this Agreement; (vii) publicly disclose any intention, plan or arrangement\ninconsistent with any of the foregoing; (viii) advise, assist or encourage any other person in connection with any of the foregoing or\n(ix) other than as authorized be this letter agreement or any definitive agreement relating to a Possible Transaction executed by the Parties\nor their affiliates, take any action that would legally require the Company to make a public announcement regarding a business\ncombination, merger, sale of all or substantially all of its assets, liquidation or other extraordinary corporate transaction involving the\nCompany.\nNotwithstanding any of the foregoing, Recipient shall be permitted to purchase securities currently held by Wynnefield Capital, Inc. and its\naffiliates.\nThis Agreement shall be binding upon and inure to the benefit of the parties, their subsidiaries, and their respective successors. No\nassignment or modification of this Agreement may be made by any party without the prior written consent of the other party, which consent\nmay be granted or denied in such other party’s sole discretion. This Agreement shall not create any obligation on any party hereof to enter\ninto any agreement between the Company and the Recipient or any other agreement or to negotiate or discuss any of the foregoing. In\naddition, the furnishing of Confidential Information hereunder shall not obligate either Party to (i) enter into any further agreement or\nnegotiation with the other or (ii) to continue any negotiations, in good faith or provide any information or (iii) to refrain from entering into\nan agreement or negotiation with any other person, including without limitation any other person engaged in the same or a similar line of\nbusiness as the other party hereto. Neither party shall have any liability to the other resulting from the use of or reliance upon the\nConfidential Information.\nThis Agreement contains the full and complete understanding of the parties with respect to the subject matter hereof and supersedes all\nprior representations and understandings regarding the subject matter hereof, whether oral or written. Failure to exercise or delay in\nexercising any remedy hereunder shall not be deemed a waiver thereof. Each party represents that this Agreement is being signed by a duly\nauthorized officer.\nConfidential\n12. 13. 14. This Agreement may be signed in counterparts, each of which shall for all purposes be deemed an original, and together shall constitute\none and the same instrument. This Agreement shall expire twelve months from the effective date hereof. Notwithstanding the foregoing,\nand without altering the rights and obligations of the parties with respect to any Confidential Information provided prior thereto, each Party\nreserves the right at any time to notify the other Party in writing that it no longer desires to provide or receive additional Confidential\nInformation under this Agreement, and no Confidential Information provided after such notice is received shall be considered Confidential\nInformation hereunder. Any claim for breach of this Agreement must be made and filed within twelve months of actual notice of the\nalleged breach.\nAll questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed\nand enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof.\nEach party agrees that all legal proceedings concerning the interpretations, enforcement and defense of a Possible Transactions\ncontemplated by this Agreement (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders,\nemployees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby\nirrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan for\nthe adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein\n(including with respect to the enforcement of this Agreement), and hereby irrevocably waives, and agrees not to assert in any suit, action or\nproceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper\nor is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process\nbeing served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with\nevidence of delivery) to such party at the address in effect for notices to it (as shown on the signature page hereto and as may be changed\nfrom time to time by notice to the other Party) under this Agreement and agrees that such service shall constitute good and sufficient\nservice of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other\nmanner permitted by law. The Parties waive any right to a jury trial and any right to consolidation with a cause of action involving a jury\ntrial. A Party shall use reasonable commercial efforts to mitigate or reduce any damages or claims relating to a breach of this Agreement by\nthe other Party.\nIf Recipient or its Representatives disclose any information concerning Recipient’s or its Representatives’ business or operations to the\nCompany or its Representatives, the Parties agree that (i) any information so disclosed shall constitute “Confidential Information”\nhereunder, and (ii) Recipient and its Representatives shall have mutual mirror reciprocal rights and benefits to the rights and benefits of the\nCompany provided by the foregoing provisions of this letter agreement.\nConfidential\nIn witness whereof the undersigned have executed this Agreement as of the date first written above. Confidential\nMusclepharm\nBy: ».LOGO\nName: Brad Pyatt\nTitle: Chairman and CEO\nDate: June 23, 2015\nWith an address of:\n4721 Ironton Street, Building A\nDenver, CO 80239\nConsac, LLC\nBy: e LOGO\nName: Ryan Drexler\nTitle: President\nDate: June 23, 2015\nWith an address of:\n525 Chalette Drive\nBeverly Hills, California 90211	EX-10.6 7 d937352dex106.htm EX-10.6\nExhibit 10.6\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis confidentiality and non-disclosure agreement (the "Agreement") is made and entered into as of June 23, 2015, by and between Consac,\nLLC (the "Recipient"), and MusclePharm Corporation, a Nevada corporation (the "Company"). Each of the Recipient and the Company is\nsometimes referred to herein as a "Party" and collectively as "Parties."\nWHEREAS, the Recipient is desirous of obtaining certain Confidential Information from the Company in connection with a potential\ntransaction between the Company and the Recipient (a "Possible Transaction");\nWHEREAS, in connection with Recipient's evaluation of a Possible Transaction the Company may disclose certain confidential\ninformation concerning the Company and/or its affiliates to the Recipient; and\nWHEREAS, the Recipient agrees that it shall use such Confidential Information and refrain from disclosing or making use of such\nConfidential Information, all in accordance with the terms of this Agreement.\nNOW THEREFORE, the parties mutually agree to the following:\n1.\nRecipient shall be responsible for the conduct of its Representatives and Affiliate Entities (as such terms are hereinafter defined) regarding\nthe confidentiality and use of the Confidential Information. The Recipient shall only disclose the Confidential Information to its directors,\nofficers or employees or parties consented to by the Company pursuant to Section 5 who are bound by confidentiality obligations that are\nat\nleast as restrictive as the terms of this Agreement and who have a reasonable need to review the Confidential Information in connection\nwith the consideration, evaluation and negotiation of a Possible Transaction (collectively, the "Representatives"). Any disclosure of\nConfidential Information shall not be deemed to grant a license or right to the Recipient or any Representative or Affiliated Entities to use\nConfidential Information for any purpose other than as set forth herein.\n2.\nFor the purpose of this Agreement, "Confidential Information" shall mean any and all commercial, business, financial, technical and/or\nother information relating to the Company and/or its affiliates, including, but not limited to, financial data, statistical information,\nmarketing, and/or product development plans or procedures, trade secrets, real estate information, personnel information and/or other data\ndisclosed to the Recipient pursuant hereto in connection with a Possible Transaction or otherwise, without regard to whether such\ninformation was communicated in writing, orally, visually or by other means, together with all analyses, compilations, studies, or other\ndocuments prepared by Recipient or its Representatives which reflect or are generated from such information.\n3.\nSubject to the terms and provisions of this Agreement, Recipient agrees to hold in confidence and not to reveal, report, publish, disclose or\ntransfer, directly or indirectly, any of the Confidential Information of the Company to any third party or use any of the Company's\nConfidential Information for any purpose at any time except as\nConfidential\nnecessary to evaluate a Possible Transaction. The Recipient, its Representatives and Affiliated Entities shall use the Confidential\nInformation in accordance with the terms of this Agreement. All Confidential Information shall remain the sole property of the Company.\nAt any time upon the request of the Company, Recipient will promptly return to the Company or destroy all Confidential Information (in\nany media), including any copies as well as all materials (in any media) which contain or embody Confidential Information, and, with\nrespect to abstracts or summaries of Confidential Information that Recipient may have made, Recipient will destroy such abstracts or\nsummaries and will provide a written declaration from an authorized officer certifying that it has done so. Notwithstanding the preceding\nsentence, Recipient (i) may retain one copy of any portion of the Confidential Information that Recipient has been advised by their counsel\nis required to retain by applicable law, rule or regulation or their internal compliance policies and (ii) shall not be obligated to erase\nConfidential Information contained in an electronic archiving or backup system operating in the ordinary course of business. In the case\nof\neach of (i) and (ii) in the preceding sentence, Recipient, its Representatives and Affiliate Entitles will continue to keep the Confidential\nInformation confidential in accordance with the terms of this Agreement. Notwithstanding the foregoing, the destruction of any\nConfidential Information does not affect any of the Recipient's obligations hereunder and the Confidential Information, whether or not\ndestroyed, will remain subject to the restrictions herein. In connection with the obligations under this Agreement, Recipient shall maintain\nthe confidentiality of the Confidential Information with at least the same degree of care that it uses to protect its own confidential\ninformation, but no less than a reasonable degree of care under the circumstances.\n4.\nExcept as may be required by law, including securities laws, without the prior written consent of the other Party, neither Party shall, and\neach Party shall direct its Representatives not to, disclose to any person or entity (other than its Representatives) (a) that any investigations,\ndiscussions or negotiations are taking place (including, without limitation, concerning a Possible Transaction involving the Company and\nthe Recipient), (b) that Recipient has requested or received any Confidential Information, (c) the terms of this Agreement, or (d) any of the\nterms, conditions, negotiations, discussions or other facts (including, without limitation, with respect to a Possible Transaction, including\nthe status thereof).\n5.\nWithout the prior written consent of the Company, Recipient shall not, and shall direct its Representatives and Affiliate Entitles (as defined\nin Section 9 below) not to disclose any Confidential Information to any third parties (including, without limitation, in connection with a\nPossible Transaction, or otherwise discuss a Possible Transaction with, or disclose a Possible Transaction to, any third parties. Recipient\nrepresents and covenants that Recipient does not have (and will not enter into) (a) any agreement or understanding with any other person\nthat such person will refrain from bidding on or participating in a Possible Transaction with the Company, (b) any agreement pursuant to\nwhich any other person will have a right to participate in a Possible Transaction with the Company involving the Recipient if the Recipient\nis successful in consummating a Possible Transaction with the Company or (c) any agreement or arrangement with any potential debt or\nequity financing sources which may reasonably be expected to limit such financing source from acting as a financing source for any other\npotential acquirer or participant in a Possible Transaction with the Company.\nConfidential\n2\n6.\nDue to the unique confidential, proprietary, unique and valuable nature of the Confidential Information, Recipient acknowledges and agrees\nthat in the event Recipient fails to comply with its obligations hereunder, that monetary damages may be inadequate to compensate the\nCompany. Accordingly, Recipient agrees that the Company shall, in addition to any other remedies available to it at law or in equity, be\nentitled to seek injunctive relief to enforce the terms of Sections 2, 3, 4 and 5 of this Agreement.\n7.\nNotwithstanding anything herein to the contrary, Confidential Information shall not include any information which (a) at the time of its\ndisclosure or thereafter is generally available to or known to the public other than as a result of a disclosure by the Recipient or its\nrepresentatives in breach of this Agreement, (b) was or becomes available to the Recipient, on a non-confidential basis from a source other\nthan the Company, (c) is shown by written dated records (or any other evidence or documentary media) to have been independently\nacquired or developed by Recipient without breaching this Agreement, (d) is shown by written dated records (or any other evidence or\ndocumentary media) to have been lawfully in the possession of or known to the Recipient prior to disclosure by the Company, or\n(e) Recipient is compelled by court or government action pursuant to applicable law to disclose, provided, however, that Recipient gives\nthe Company prompt notice thereof so that the Company may seek a protective order or other appropriate remedy.\n8.\nThe Recipient acknowledges that the Company is a publicly traded company. As such, the Recipient agrees not to use any material non-\npublic Confidential Information in connection with the purchase or sale of the securities of the Company. The Recipient further\nacknowledges that such use may constitute a violation of securities laws.\n9.\nThe Recipient acknowledges that, in its examination of the Confidential Information, it will be given access to material non-public\ninformation concerning the Company. In consideration of receipt of that information, for a period of the later of (A) twelve months from\nthe date of this Agreement and (B) the date on which the 2016 annual meeting of the Company's shareholders is held (which shall be held\nno\nlater than December 31, 2016) (the "Standstill Period") the Recipient on behalf of itself, its parent and subsidiary entities and entities\nunder common control therewith (the "Affiliate Entities"), hereby agrees that each of the Recipient and the Affiliated Entities shall not,\nother than as authorized in writing by the Company: (i) in any manner acquire, whether from the Company or a third party, directly or\nindirectly (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as\namended ("Exchange Act")) of any additional voting securities or other equity interests in the Company or all or substantially all of the\nassets of the Company; (ii) enter into, directly or indirectly, any merger or business combination involving the Company; (iii) solicit\nproxies or consents, directly or indirectly, or become a "participant" in any "solicitation" (as such terms are defined in Regulation 14A\nunder the Exchange Act) of proxies or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting\nsecurities of the Company; (iv) with respect to any voting securities of the Company, (a) form or join any "group" (within the meaning of\nSection 13(d)(3) of the Exchange Act) after the date of this agreement that would be required under the Exchange Act to file a statement on\nSchedule 13D or Schedule 13G if such group had not previously filed such statement or otherwise require an amendment to such statement\nif such a\nConfidential\n3\nstatement has been filed prior to the date hereof or (b) in the event that the Recipient or any of the Recipient's Affiliated Entities have\nformed or joined any such group prior to the date hereof, participate in or benefit from any additional action by such group or any member\nthereof after the date of this agreement that (1) would constitute a violation of this paragraph if undertaken by the Recipient alone or\n(2) would require such group to file a statement on Schedule 13D or Schedule 13G if such group had not previously filed such a statement\nor otherwise require an amendment to such statement if such a statement has been filed prior to the date hereof; (v) otherwise act, alone or\nin concert with others, to seek to control the management, Board of Directors or policies of the Company; (vi) initiate any communications\nconcerning the Confidential Information or a Possible Transaction with any employee of the Company (other than Brad Pyatt, Chief\nExecutive Officer of the Company) except as contemplated by this Agreement; (vii) publicly disclose any intention, plan or arrangement\ninconsistent with any of the foregoing; (viii) advise, assist or encourage any other person in connection with any of the foregoing or\n(ix) other than as authorized be this letter agreement or any definitive agreement relating to a Possible Transaction executed by the Parties\nor their affiliates, take any action that would legally require the Company to make a public announcement regarding a business\ncombination, merger, sale of all or substantially all of its assets, liquidation or other extraordinary corporate transaction involving the\nCompany.\nNotwithstanding any of the foregoing, Recipient shall be permitted to purchase securities currently held by Wynnefield Capital, Inc. and its\naffiliates.\n10. This Agreement shall be binding upon and inure to the benefit of the parties, their subsidiaries, and their respective successors. No\nassignment or modification of this Agreement may be made by any party without the prior written consent of the other party, which consent\nmay be granted or denied in such other party's sole discretion. This Agreement shall not create any obligation on any party hereof to enter\ninto any agreement between the Company and the Recipient or any other agreement or to negotiate or discuss any of the foregoing. In\naddition, the furnishing of Confidential Information hereunder shall not obligate either Party to (i) enter into any further agreement or\nnegotiation with the other or (ii) to continue any negotiations, in good faith or provide any information or (iii) to refrain from entering into\nan agreement or negotiation with any other person, including without limitation any other person engaged in the same or a similar line of\nbusiness as the other party hereto. Neither party shall have any liability to the other resulting from the use of or reliance upon the\nConfidential Information.\n11. This Agreement contains the full and complete understanding of the parties with respect to the subject matter hereof and supersedes all\nprior representations and understandings regarding the subject matter hereof, whether oral or written. Failure to exercise or delay in\nexercising any remedy hereunder shall not be deemed a waiver thereof. Each party represents that this Agreement is being signed by a duly\nauthorized officer.\nConfidential\n4\n12. This Agreement may be signed in counterparts, each of which shall for all purposes be deemed an original, and together shall constitute\none and the same instrument. This Agreement shall expire twelve months from the effective date hereof. Notwithstanding the foregoing,\nand without altering the rights and obligations of the parties with respect to any Confidential Information provided prior thereto, each Party\nreserves the right at any time to notify the other Party in writing that it no longer desires to provide or receive additional Confidential\nInformation under this Agreement, and no Confidential Information provided after such notice is received shall be considered Confidential\nInformation hereunder. Any claim for breach of this Agreement must be made and filed within twelve months of actual notice of the\nalleged breach.\n13.\nAll questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed\nand enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof.\nEach party agrees that all legal proceedings concerning the interpretations, enforcement and defense of a Possible Transactions\ncontemplated by this Agreement (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders,\nemployees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby\nirrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan for\nthe adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein\n(including with respect to the enforcement of this Agreement), and hereby irrevocably waives, and agrees not to assert in any suit, action or\nproceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper\nor is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process\nbeing served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with\nevidence of delivery) to such party at the address in effect for notices to it (as shown on the signature page hereto and as may be changed\nfrom time to time by notice to the other Party) under this Agreement and agrees that such service shall constitute good and sufficient\nservice of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other\nmanner permitted by law. The Parties waive any right to a jury trial and any right to consolidation with a cause of action involving a jury\ntrial. A Party shall use reasonable commercial efforts to mitigate or reduce any damages or claims relating to a breach of this Agreement by\nthe other Party.\n14.\nIf Recipient or its Representatives disclose any information concerning Recipient's or its Representatives' business or operations to the\nCompany or its Representatives, the Parties agree that (i) any information so disclosed shall constitute "Confidential Information"\nhereunder, and (ii) Recipient and its Representatives shall have mutual mirror reciprocal rights and benefits to the rights and benefits of the\nCompany provided by the foregoing provisions of this letter agreement.\nConfidential\n5\nIn witness whereof the undersigned have executed this Agreement as of the date first written above.\nMusclepharm\nBy:\nLOGO\nName: Brad Pyatt\nTitle: Chairman and CEO\nDate: June 23, 2015\nWith an address of:\n4721 Ironton Street, Building A\nDenver, CO 80239\nConsac, LLC\nBy:\nLOGO\nName: Ryan Drexler\nTitle: President\nDate: June 23, 2015\nWith an address of:\n525 Chalette Drive\nBeverly Hills, California 90211\nConfidential\n6	EX-10.6 7 d937352dex106.htm EX-10.6\nExhibit 10.6\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis confidentiality and non-disclosure agreement (the “Agreement”) is made and entered into as of June 23, 2015, by and between Consac,\nLLC (the “Recipient”), and MusclePharm Corporation, a Nevada corporation (the “Company”). Each of the Recipient and the Company is\nsometimes referred to herein as a “Party” and collectively as “Parties.”\nWHEREAS, the Recipient is desirous of obtaining certain Confidential Information from the Company in connection with a potential\ntransaction between the Company and the Recipient (a “Possible Transaction”);\nWHEREAS, in connection with Recipient’s evaluation of a Possible Transaction the Company may disclose certain confidential\ninformation concerning the Company and/or its affiliates to the Recipient; and\nWHEREAS, the Recipient agrees that it shall use such Confidential Information and refrain from disclosing or making use of such\nConfidential Information, all in accordance with the terms of this Agreement.\nNOW THEREFORE, the parties mutually agree to the following:\n1. Recipient shall be responsible for the conduct of its Representatives and Affiliate Entities (as such terms are hereinafter defined) regarding\nthe confidentiality and use of the Confidential Information. The Recipient shall only disclose the Confidential Information to its directors,\nofficers or employees or parties consented to by the Company pursuant to Section 5 who are bound by confidentiality obligations that are at\nleast as restrictive as the terms of this Agreement and who have a reasonable need to review the Confidential Information in connection\nwith the consideration, evaluation and negotiation of a Possible Transaction (collectively, the “Representatives”). Any disclosure of\nConfidential Information shall not be deemed to grant a license or right to the Recipient or any Representative or Affiliated Entities to use\nConfidential Information for any purpose other than as set forth herein.\n2. For the purpose of this Agreement, “Confidential Information” shall mean any and all commercial, business, financial, technical and/or\nother information relating to the Company and/or its affiliates, including, but not limited to, financial data, statistical information,\nmarketing, and/or product development plans or procedures, trade secrets, real estate information, personnel information and/or other data\ndisclosed to the Recipient pursuant hereto in connection with a Possible Transaction or otherwise, without regard to whether such\ninformation was communicated in writing, orally, visually or by other means, together with all analyses, compilations, studies, or other\ndocuments prepared by Recipient or its Representatives which reflect or are generated from such information.\n3. Subject to the terms and provisions of this Agreement, Recipient agrees to hold in confidence and not to reveal, report, publish, disclose or\ntransfer, directly or indirectly, any of the Confidential Information of the Company to any third party or use any of the Company’s\nConfidential Information for any purpose at any time except as\nConfidential\nnecessary to evaluate a Possible Transaction. The Recipient, its Representatives and Affiliated Entities shall use the Confidential\nInformation in accordance with the terms of this Agreement. All Confidential Information shall remain the sole property of the Company.\nAt any time upon the request of the Company, Recipient will promptly return to the Company or destroy all Confidential Information (in\nany media), including any copies as well as all materials (in any media) which contain or embody Confidential Information, and, with\nrespect to abstracts or summaries of Confidential Information that Recipient may have made, Recipient will destroy such abstracts or\nsummaries and will provide a written declaration from an authorized officer certifying that it has done so. Notwithstanding the preceding\nsentence, Recipient (i) may retain one copy of any portion of the Confidential Information that Recipient has been advised by their counsel\nis required to retain by applicable law, rule or regulation or their internal compliance policies and (ii) shall not be obligated to erase\nConfidential Information contained in an electronic archiving or backup system operating in the ordinary course of business. In the case of\neach of (i) and (ii) in the preceding sentence, Recipient, its Representatives and Affiliate Entitles will continue to keep the Confidential\nInformation confidential in accordance with the terms of this Agreement. Notwithstanding the foregoing, the destruction of any\nConfidential Information does not affect any of the Recipient’s obligations hereunder and the Confidential Information, whether or not\ndestroyed, will remain subject to the restrictions herein. In connection with the obligations under this Agreement, Recipient shall maintain\nthe confidentiality of the Confidential Information with at least the same degree of care that it uses to protect its own confidential\ninformation, but no less than a reasonable degree of care under the circumstances.\n4. Except as may be required by law, including securities laws, without the prior written consent of the other Party, neither Party shall, and\neach Party shall direct its Representatives not to, disclose to any person or entity (other than its Representatives) (a) that any investigations,\ndiscussions or negotiations are taking place (including, without limitation, concerning a Possible Transaction involving the Company and\nthe Recipient), (b) that Recipient has requested or received any Confidential Information, (c) the terms of this Agreement, or (d) any of the\nterms, conditions, negotiations, discussions or other facts (including, without limitation, with respect to a Possible Transaction, including\nthe status thereof).\n5. Without the prior written consent of the Company, Recipient shall not, and shall direct its Representatives and Affiliate Entitles (as defined\nin Section 9 below) not to disclose any Confidential Information to any third parties (including, without limitation, in connection with a\nPossible Transaction, or otherwise discuss a Possible Transaction with, or disclose a Possible Transaction to, any third parties. Recipient\nrepresents and covenants that Recipient does not have (and will not enter into) (a) any agreement or understanding with any other person\nthat such person will refrain from bidding on or participating in a Possible Transaction with the Company, (b) any agreement pursuant to\nwhich any other person will have a right to participate in a Possible Transaction with the Company involving the Recipient if the Recipient\nis successful in consummating a Possible Transaction with the Company or (c) any agreement or arrangement with any potential debt or\nequity financing sources which may reasonably be expected to limit such financing source from acting as a financing source for any other\npotential acquirer or participant in a Possible Transaction with the Company.\nConfidential\n2\n6. Due to the unique confidential, proprietary, unique and valuable nature of the Confidential Information, Recipient acknowledges and agrees\nthat in the event Recipient fails to comply with its obligations hereunder, that monetary damages may be inadequate to compensate the\nCompany. Accordingly, Recipient agrees that the Company shall, in addition to any other remedies available to it at law or in equity, be\nentitled to seek injunctive relief to enforce the terms of Sections 2, 3, 4 and 5 of this Agreement.\n7. Notwithstanding anything herein to the contrary, Confidential Information shall not include any information which (a) at the time of its\ndisclosure or thereafter is generally available to or known to the public other than as a result of a disclosure by the Recipient or its\nrepresentatives in breach of this Agreement, (b) was or becomes available to the Recipient, on a non-confidential basis from a source other\nthan the Company, (c) is shown by written dated records (or any other evidence or documentary media) to have been independently\nacquired or developed by Recipient without breaching this Agreement, (d) is shown by written dated records (or any other evidence or\ndocumentary media) to have been lawfully in the possession of or known to the Recipient prior to disclosure by the Company, or\n(e) Recipient is compelled by court or government action pursuant to applicable law to disclose, provided, however, that Recipient gives\nthe Company prompt notice thereof so that the Company may seek a protective order or other appropriate remedy.\n8. The Recipient acknowledges that the Company is a publicly traded company. As such, the Recipient agrees not to use any material non-\npublic Confidential Information in connection with the purchase or sale of the securities of the Company. The Recipient further\nacknowledges that such use may constitute a violation of securities laws.\n9. The Recipient acknowledges that, in its examination of the Confidential Information, it will be given access to material non-public\ninformation concerning the Company. In consideration of receipt of that information, for a period of the later of (A) twelve months from\nthe date of this Agreement and (B) the date on which the 2016 annual meeting of the Company’s shareholders is held (which shall be held\nno later than December 31, 2016) (the “Standstill Period”) the Recipient on behalf of itself, its parent and subsidiary entities and entities\nunder common control therewith (the “Affiliate Entities”), hereby agrees that each of the Recipient and the Affiliated Entities shall not,\nother than as authorized in writing by the Company: (i) in any manner acquire, whether from the Company or a third party, directly or\nindirectly (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as\namended (“Exchange Act”)) of any additional voting securities or other equity interests in the Company or all or substantially all of the\nassets of the Company; (ii) enter into, directly or indirectly, any merger or business combination involving the Company; (iii) solicit\nproxies or consents, directly or indirectly, or become a “participant” in any “solicitation” (as such terms are defined in Regulation 14A\nunder the Exchange Act) of proxies or consents to vote, or seek to advise or influence any person with respect to the voting of, any voting\nsecurities of the Company; (iv) with respect to any voting securities of the Company, (a) form or join any “group” (within the meaning of\nSection 13(d)(3) of the Exchange Act) after the date of this agreement that would be required under the Exchange Act to file a statement on\nSchedule 13D or Schedule 13G if such group had not previously filed such statement or otherwise require an amendment to such statement\nif such a\nConfidential\n3\nstatement has been filed prior to the date hereof or (b) in the event that the Recipient or any of the Recipient’s Affiliated Entities have\nformed or joined any such group prior to the date hereof, participate in or benefit from any additional action by such group or any member\nthereof after the date of this agreement that (1) would constitute a violation of this paragraph if undertaken by the Recipient alone or\n(2) would require such group to file a statement on Schedule 13D or Schedule 13G if such group had not previously filed such a statement\nor otherwise require an amendment to such statement if such a statement has been filed prior to the date hereof; (v) otherwise act, alone or\nin concert with others, to seek to control the management, Board of Directors or policies of the Company; (vi) initiate any communications\nconcerning the Confidential Information or a Possible Transaction with any employee of the Company (other than Brad Pyatt, Chief\nExecutive Officer of the Company) except as contemplated by this Agreement; (vii) publicly disclose any intention, plan or arrangement\ninconsistent with any of the foregoing; (viii) advise, assist or encourage any other person in connection with any of the foregoing or\n(ix) other than as authorized be this letter agreement or any definitive agreement relating to a Possible Transaction executed by the Parties\nor their affiliates, take any action that would legally require the Company to make a public announcement regarding a business\ncombination, merger, sale of all or substantially all of its assets, liquidation or other extraordinary corporate transaction involving the\nCompany.\nNotwithstanding any of the foregoing, Recipient shall be permitted to purchase securities currently held by Wynnefield Capital, Inc. and its\naffiliates.\n10. This Agreement shall be binding upon and inure to the benefit of the parties, their subsidiaries, and their respective successors. No\nassignment or modification of this Agreement may be made by any party without the prior written consent of the other party, which consent\nmay be granted or denied in such other party’s sole discretion. This Agreement shall not create any obligation on any party hereof to enter\ninto any agreement between the Company and the Recipient or any other agreement or to negotiate or discuss any of the foregoing. In\naddition, the furnishing of Confidential Information hereunder shall not obligate either Party to (i) enter into any further agreement or\nnegotiation with the other or (ii) to continue any negotiations, in good faith or provide any information or (iii) to refrain from entering into\nan agreement or negotiation with any other person, including without limitation any other person engaged in the same or a similar line of\nbusiness as the other party hereto. Neither party shall have any liability to the other resulting from the use of or reliance upon the\nConfidential Information.\n11. This Agreement contains the full and complete understanding of the parties with respect to the subject matter hereof and supersedes all\nprior representations and understandings regarding the subject matter hereof, whether oral or written. Failure to exercise or delay in\nexercising any remedy hereunder shall not be deemed a waiver thereof. Each party represents that this Agreement is being signed by a duly\nauthorized officer.\nConfidential\n4\n12. This Agreement may be signed in counterparts, each of which shall for all purposes be deemed an original, and together shall constitute\none and the same instrument. This Agreement shall expire twelve months from the effective date hereof. Notwithstanding the foregoing,\nand without altering the rights and obligations of the parties with respect to any Confidential Information provided prior thereto, each Party\nreserves the right at any time to notify the other Party in writing that it no longer desires to provide or receive additional Confidential\nInformation under this Agreement, and no Confidential Information provided after such notice is received shall be considered Confidential\nInformation hereunder. Any claim for breach of this Agreement must be made and filed within twelve months of actual notice of the\nalleged breach.\n13. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and construed\nand enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof.\nEach party agrees that all legal proceedings concerning the interpretations, enforcement and defense of a Possible Transactions\ncontemplated by this Agreement (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders,\nemployees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby\nirrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan for\nthe adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein\n(including with respect to the enforcement of this Agreement), and hereby irrevocably waives, and agrees not to assert in any suit, action or\nproceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper\nor is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process\nbeing served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with\nevidence of delivery) to such party at the address in effect for notices to it (as shown on the signature page hereto and as may be changed\nfrom time to time by notice to the other Party) under this Agreement and agrees that such service shall constitute good and sufficient\nservice of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other\nmanner permitted by law. The Parties waive any right to a jury trial and any right to consolidation with a cause of action involving a jury\ntrial. A Party shall use reasonable commercial efforts to mitigate or reduce any damages or claims relating to a breach of this Agreement by\nthe other Party.\n14. If Recipient or its Representatives disclose any information concerning Recipient’s or its Representatives’ business or operations to the\nCompany or its Representatives, the Parties agree that (i) any information so disclosed shall constitute “Confidential Information”\nhereunder, and (ii) Recipient and its Representatives shall have mutual mirror reciprocal rights and benefits to the rights and benefits of the\nCompany provided by the foregoing provisions of this letter agreement.\nConfidential\n5\nIn witness whereof the undersigned have executed this Agreement as of the date first written above.\nMusclepharm\nBy:\nLOGO\nName: Brad Pyatt\nTitle: Chairman and CEO\nDate: June 23, 2015\nWith an address of:\n4721 Ironton Street, Building A\nDenver, CO 80239\nConsac, LLC\nBy:\nLOGO\nName: Ryan Drexler\nTitle: President\nDate: June 23, 2015\nWith an address of:\n525 Chalette Drive\nBeverly Hills, California 90211\nConfidential\n6
+5c6a75a65f4b47a2b76f74e08d1c6fb5.pdf	effective_date jurisdiction party term	Appendix A\nNON-DISCLOSURE AGREEMENT\n(Employee)\nThis Non-Disclosure Agreement (“Agreement”) dated as of January 1, 2008 is entered in by and between BioLargo, Inc. (the “Company”) and\nJoseph Provenzano (the “Employee”), and sets forth the terms and conditions on which Company is willing to disclose certain material non-public\ninformation about the Company.\n1. Purpose. In connection with his retention as an employee to the Company pursuant to an agreement dated as of even date (the\n“Employment Agreement”), the Company may disclose to the Employee certain confidential technical and business information which the Company\nrequires the Employee to treat as confidential.\n2. Definition. “Confidential Information” means any information disclosed to the Employee by the Company, either directly or indirectly in\nwriting, orally or by inspection of tangible objects, including without limitation documents, prototypes and forecasted financial information.\nConfidential Information may also include information disclosed to the Company by third parties. Confidential Information shall not, however,\ninclude any information which the Employee can establish by written documentation (i) was publicly known and made generally available in the\npublic domain prior to the time of disclosure to the Employee by the Company; (ii) becomes publicly known and made generally available after\ndisclosure to the Employee by the Company through no action or inaction of the Employee; (iii) is in the possession of the Employee, without\nconfidentiality restrictions, at the time of disclosure by the Company as shown by the Employee’s files and records immediately prior to the time of\ndisclosure; (iv) is developed independently of the Confidential Information, as shown by written records prepared contemporaneously with such\nindependent development; or (v) is disclosed pursuant to the requirement of a United States government agency or judicial body, provided that the\nEmployee shall provide reasonable advice notice thereof to enable the Company to seek a protective order or otherwise prevent such disclosure.\n3. Non-use and Non-disclosure. The Employee agrees not to use any Confidential Information for any purpose except within the proper scope\nof his duties pursuant to the Consulting Agreement. The Employee agrees not to disclose any Confidential Information to third parties, except to\nthose individuals who, with the prior written consent of the Company, are designated as authorized to receive such Confidential Information in order\nfor the Employee to perform his duties and obligation sunder the Consulting Agreement. The Employee agrees that each third party receiving any\nConfidential Information will enter into a separate Non-Disclosure Agreement with the Company.\n4. Maintenance of Confidentiality. The Employee agrees that it shall take all commercially reasonable measures to protect the secrecy of and\navoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Employee shall take at least those\nmeasures that the Employee takes to protect its own confidential information of a similar nature and shall have its employees or advisors who have\naccess to Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the provisions hereof, prior to any\ndisclosure of Confidential Information to such employees. The Employee shall immediately notify the Company in the event of any unauthorized\nuse or disclosure of any Confidential Information.\n-1-\n5. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. COMPANY MAKES NO WARRANTIES, EXPRESS,\nIMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n6. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which are in the\npossession of the Employee shall be and remain the property of the Company and shall be promptly returned to the Company upon request for any\nreason or for no reason.\n7. Work Made for Hire.\n(a) Employee and/or designates of the Employee shall promptly and fully inform the Company of, and disclose to the Company , any and all\nideas, processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, fictitious business names,\ntechnology, patents, know-how, trade secrets, computer programs, original works of authorship, formulae, concepts, themes, inventions, designs,\ncreations, new works, derivative works and discoveries, and all applications, improvements, rights and claims related to any the foregoing, and all\nother intellectual property, proprietary rights and work product, whether or not patentable or copyrightable, registered or unregistered or domestic or\nforeign, and whether or not relating to a published work, that Employee develops, makes, creates, conceives or reduces to practice during the term of\nthe Consulting Agreement, whether alone or in collaboration with others (collectively, “Invention Ideas”). Employee hereby assigns to the\nCompany exclusively in perpetuity throughout the world all right, title and interest (choate or inchoate) in (i) the Invention Ideas, (ii) all precursors,\nportions and work in progress with respect thereto and all inventions, works of authorship, mask works, technology, information, know-how,\nmaterials and tools relating thereto or to the development, support or maintenance thereof and (iii) all copyrights, patent rights, trade secret rights,\ntrademark rights, mask works rights, sui generis database rights and all other intellectual and industrial property rights of any sort and all business,\ncontract rights, causes of action, and goodwill in, incorporated or embodied in, used to develop, or related to any of the foregoing (collectively\n“Intellectual Property”). All copyrightable Invention Ideas are intended by Employee to be a “work-made-for-hire” by Employee for Company and\nowned by Company pursuant to Section 201 (b) of Title 17 of the United States Code.\n(b) Employee shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such\nother agreements, certificates, instruments and documents, as the Company may reasonably request in order to obtain patent or copyright registration\non all Invention Ideas and Intellectual Property , and shall execute and deliver all documents, instruments and agreements, including the formal\nexecution of an assignment of copyright and/or patent application or issued patent, and do all things necessary or requested by the Company, in order\nto enable Company to ultimately and finally obtain and enforce full and exclusive title to all Invention Ideas and Intellectual Property and all rights\nassigned pursuant to this Section 7. Employee hereby appoints the Company as Employee’s irrevocable attorney-in-fact for the purpose of executing\nand delivering all such documents, instruments and agreements, and performing all such acts, with the same legal force and effect as if executed and\ndelivered and taken by Employee.\n(c) If for any reason the foregoing assignment is determined to be unenforceable Employee grants to Company a perpetual, irrevocable,\nworldwide, royalty-free, exclusive, sub-licensable right and license to exploit and exercise all such Invention Ideas and Intellectual Property.\n(d) Because of the difficulty of establishing when Employee first conceives of or develops Intellectual Property, proprietary rights or work\nproduct or whether such Intellectual Property, proprietary rights or work product results from access to Company’s confidential and proprietary\ninformation or\n-2-\nequipment, facilities or data, Employee agrees that any Intellectual Property, proprietary rights and work product shall be presumed to be an\nInvention Idea if it is conceived, developed, used, sold, exploited or reduced to practice by Employee or with the aid of Employee within one year\nafter the normal termination of Employee’s employment with Company. Employee can rebut that presumption if Employee proves that the\nintellectual property, proprietary rights and work product (i) was first conceived or developed after termination of Employee’s employment with and\nby Company; (ii) was conceived or developed entirely on Employee’s own time without using Company’s equipment, supplies, facilities or\nconfidential and proprietary information; and (iii) did not result from any work performed by Employee for or on behalf of Company.\n(e) Employee acknowledges that there is no intellectual property, proprietary right or work product that Employee desires not to be deemed\nInvention Ideas or Intellectual Property and thus to exclude from the above provisions of this Agreement. To the best of Employee’s knowledge,\nthere is no other existing contract in conflict with this Agreement or any other contract to assign ideas, processes, trademarks, service marks,\ninventions, technology, computer programs, original works of authorship, designs, formulas, discoveries, patents or copyrights that is now in\nexistence between Employee and any other person or entity.\n(f) This Section 7 shall not operate to require Employee to assign to Company any of Employee’s rights to inventions, intellectual properties or\nwork products that would not be assignable under the provisions of California Labor Code Section 2870. Employee represents and warrants to\nCompany that this paragraph constitutes Company’s written notification to Employee of the provisions of Section 2870 of the California Labor\nCode, and Employee represents and warrants to Company that Employee has reviewed Section 2870 of the California Labor Code.\n8. Unfair Competition and Protection of Proprietary Information.\n(a) Employee shall not at any time (including after Employee’s employment with Company terminates) divulge, furnish or make accessible to\nanyone any of Company’s Proprietary Information, or use in any way any of Company’s Proprietary Information other than as reasonably required to\nperform Employee’s duties under this Agreement. Employee shall not undertake any other acts or omissions that would reduce the value to Company\nof Company’s Proprietary Information. The restrictions on Employee’s use of Company’s Proprietary Information shall not apply to knowledge or\ninformation that Employee can prove is part of the public domain through no fault of Employee. Employee agrees that such restrictions are fair and\nreasonable.\n(b) Employee agrees that Company’s Proprietary Information constitutes a unique and valuable asset of Company that Company acquired at\ngreat time and expense, and which is secret and confidential and will only be available to or communicated to Employee in confidence in the course\nof Employee’s provision of services to Company. Employee also agrees that any disclosure or other use of Company’s Proprietary Information other\nthan for Company’s sole benefit would be wrongful, would constitute unfair competition and will cause irreparable and incalculable harm to\nCompany and to its subsidiaries, affiliates and divisions. In addition to all other remedies Company may have, it shall have the right to seek and\nobtain appropriate injunctive and other equitable relief, including emergency relief, to prevent any violations of this Section 8.\n(c) Employee agrees that Company’s employees constitute a valuable asset of Company. Employee agrees that Employee shall not, during the\nTerm and for a period of two years thereafter, directly or indirectly, for Employee or on behalf of any other person or entity, solicit any person who\nwas an employee of or consultant to Company (at any time while Employee is performing any services for Company, or at any time within twelve\nmonths prior to or after such solicitation) for a competing\n-3-\nbusiness or otherwise induce or attempt to induce any such persons to terminate their employment or relationship with Company or otherwise to\ndisrupt or interfere, or attempt to disrupt or interfere, with Company’s employment or relationships with such persons. Employee agrees that any\nsuch solicitation, inducement or interference would be wrongful and would constitute unfair competition, and will cause irreparable and incalculable\nharm to Company. Further, Employee shall not engage in any other unfair competition with Company. Employee agrees that such restrictions are fair\nand reasonable.\n(d) Employee recognizes and agrees that Employee has no expectation of privacy with respect to Company’s telecommunications, networking\nor information processing systems (including stored computer files, e-mail messages and voice messages), and that Employee’s activity, and any\nfiles or messages, on or using any of those systems may be monitored at any time without notice.\n(e) As used in this Agreement, “Company’s Proprietary Information” means any knowledge, trade secrets (including “trade secrets” as defined\nin Section 3426.1 of the California Civil Code), Invention Ideas, proprietary rights or proprietary information, intangible assets or property, and other\nintellectual property (whether or not copyrighted or copyrightable or patented or patentable), information and materials (including processes,\ntrademarks, trade names, service marks, service mark applications, copyrights, mask work rights, technology, patents, patent applications and works\nof authorship), in whatever form, including electronic form, and all goodwill relating or appurtenant thereto, owned or licensed by Company or any\nof its subsidiaries, affiliates or divisions, or directly or indirectly useful in any aspect of the business of Company or its subsidiaries, affiliates or\ndivisions, whether or not marked as confidential or proprietary and whether developed by Employee, by Company or its subsidiaries, affiliates or\ndivisions or by others. Without limiting the foregoing, Company’s Proprietary Information includes (a) the names, locations, practices and\nrequirements of any of Company’s customers, prospective customers, vendors, suppliers and personnel and any other persons having a business\nrelationship with Company; (b) confidential or secret development or research work of Company or its subsidiaries, affiliates or divisions, including\ninformation concerning any future or proposed services or products; (c) Company’s accounting, cost, revenue and other financial records and\ndocuments and the contents thereof; (d) Company’s documents, contracts, agreements, correspondence and other similar business records;\n(e) confidential or secret designs, software code, know how, processes, formulae, plans and devices; and (f) any other confidential or secret aspect of\nthe business of Company or its subsidiaries, affiliates or divisions.\n9. Employee’s Activities. During the term of the Consulting Agreement, neither Employee nor any person or entity acting with or on\nEmployee’s behalf, nor any person or entity under the control of or affiliated with Employee, shall, directly or indirectly, in any way Compete with\nthe Company. Employee agrees that, if Employee has any business to transact on Employee’s own account that is similar to the business entrusted to\nEmployee by Company, Employee shall notify Company and always give preference to Company’s business. Employee agrees that such restrictions\nare fair and reasonable. For purposes of this Agreement, “Compete” means doing any of the following: (i) selling products or services to any person\nor entity that was or is (at any time, including during the Term and the period when the provisions of this paragraph are in effect) a client or customer\nof Company (or its subsidiaries, affiliates or divisions) or on a list of prospective clients or customers of Company, or calling on, soliciting, taking\naway or accepting any such person or entity as a client or customer, or any attempt or offer to do any of the foregoing; (ii) entering into, or any\nattempt or offer to enter into, any business, enterprise or activity that is in any way similar to or otherwise competitive with the business that the\nCompany (or its subsidiaries, affiliates or divisions) conducted at any time during the Term or any time the provisions of this paragraph are in effect,\nor (iii) directly or indirectly assisting any person or entity to take or attempt or offer to take any of the actions described in the foregoing clauses (i)\nor (ii).\n10. Remedies.\n-4-\n(a) The Employee agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the Company, entitling\nthe Company to obtain injunctive relief in addition to all legal remedies at its disposal.\n(b) In addition to all remedies available hereunder, at law or in equity, if Employee breaches any provision of Section 8 of this Agreement,\nCompany shall have the right to invoke any and all remedies provided under the California Uniform Trade Secrets Act (California Civil Code\n§§3426, et seq.) or other statutes or common law remedies of similar effect.\n(c) The remedies provided to Company in this Section 10 are cumulative, and not exclusive, of any other remedies that may be available to\nCompany at law or in equity.\n11. No License. Nothing in this Agreement is intended to grant any rights to the Employee under any patent, copyright or other proprietary\nrights of the Company, nor shall this Agreement grant the Employee any rights in or to Confidential Information except as expressly set forth herein.\n12. Term. This Agreement shall survive the term of the Consulting Agreement and shall continue until such time as all Confidential\nInformation disclosed hereunder becomes publicly known and made generally available through no action or inaction of the Employee.\n13. Miscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This Agreement\nshall be governed by the laws of the State of California, without reference to conflict of laws principles. This document contains the entire agreement\nbetween the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not constitute a waiver\nthereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties\nhereto.\nIN WITNESS WHEREOF, the parties hereto have executed or caused their duly authorized officers to execute this Agreement as of the date\nfirst above written.\nBIOLARGO, INC. (“COMPANY”)\nBy /s/ Dennis Calvert\nDennis Calvert\nTitle: Chief Executive Officer\n“EMPLOYEE”\n/s/ Joseph L. Provenzano\n-5-	Appendix A\nNON-DISCLOSURE AGREEMENT\n(Employee)\nThis Non-Disclosure Agreement (“Agreement”) dated as of January 1, 2008 is entered in by and between BioLargo, Inc. (the “Company”) and\nJoseph Provenzano (the “Employee”), and sets forth the terms and conditions on which Company is willing to disclose certain material non-public\ninformation about the Company.\n1. Purpose. In connection with his retention as an employee to the Company pursuant to an agreement dated as of even date (the\n“Employment Agreement”), the Company may disclose to the Employee certain confidential technical and business information which the Company\nrequires the Employee to treat as confidential.\n2. Definition. “Confidential Information” means any information disclosed to the Employee by the Company, either directly or indirectly in\nwriting, orally or by inspection of tangible objects, including without limitation documents, prototypes and forecasted financial information.\nConfidential Information may also include information disclosed to the Company by third parties. Confidential Information shall not, however,\ninclude any information which the Employee can establish by written documentation (i) was publicly known and made generally available in the\npublic domain prior to the time of disclosure to the Employee by the Company; (ii) becomes publicly known and made generally available after\ndisclosure to the Employee by the Company through no action or inaction of the Employee; (iii) is in the possession of the Employee, without\nconfidentiality restrictions, at the time of disclosure by the Company as shown by the Employee’s files and records immediately prior to the time of\ndisclosure; (iv) is developed independently of the Confidential Information, as shown by written records prepared contemporaneously with such\nindependent development; or (v) is disclosed pursuant to the requirement of a United States government agency or judicial body, provided that the\nEmployee shall provide reasonable advice notice thereof to enable the Company to seek a protective order or otherwise prevent such disclosure.\n3. Non-use and Non-disclosure. The Employee agrees not to use any Confidential Information for any purpose except within the proper scope\nof his duties pursuant to the Consulting Agreement. The Employee agrees not to disclose any Confidential Information to third parties, except to\nthose individuals who, with the prior written consent of the Company, are designated as authorized to receive such Confidential Information in order\nfor the Employee to perform his duties and obligation sunder the Consulting Agreement. The Employee agrees that each third party receiving any\nConfidential Information will enter into a separate Non-Disclosure Agreement with the Company.\n4. Maintenance of Confidentiality. The Employee agrees that it shall take all commercially reasonable measures to protect the secrecy of and\navoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Employee shall take at least those\nmeasures that the Employee takes to protect its own confidential information of a similar nature and shall have its employees or advisors who have\naccess to Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the provisions hereof, prior to any\ndisclosure of Confidential Information to such employees. The Employee shall immediately notify the Company in the event of any unauthorized\nuse or disclosure of any Confidential Information.\n-1-\n5. No Warranty. ALL. CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. COMPANY MAKES NO WARRANTIES, EXPRESS,\nIMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n6. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which are in the\npossession of the Employee shall be and remain the property of the Company and shall be promptly returned to the Company upon request for any\nreason or for no reason.\n7. Work Made for Hire.\n(a) Employee and/or designates of the Employee shall promptly and fully inform the Company of, and disclose to the Company , any and all\nideas, processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, fictitious business names,\ntechnology, patents, know-how, trade secrets, computer programs, original works of authorship, formulae, concepts, themes, inventions, designs,\ncreations, new works, derivative works and discoveries, and all applications, improvements, rights and claims related to any the foregoing, and all\nother intellectual property, proprietary rights and work product, whether or not patentable or copyrightable, registered or unregistered or domestic or\nforeign, and whether or not relating to a published work, that Employee develops, makes, creates, conceives or reduces to practice during the term of\nthe Consulting Agreement, whether alone or in collaboration with others (collectively, “Invention Ideas”). Employee hereby assigns to the\nCompany exclusively in perpetuity throughout the world all right, title and interest (choate or inchoate) in (i) the Invention Ideas, (ii) all precursors,\nportions and work in progress with respect thereto and all inventions, works of authorship, mask works, technology, information, know-how,\nmaterials and tools relating thereto or to the development, support or maintenance thereof and (iii) all copyrights, patent rights, trade secret rights,\ntrademark rights, mask works rights, sui generis database rights and all other intellectual and industrial property rights of any sort and all business,\ncontract rights, causes of action, and goodwill in, incorporated or embodied in, used to develop, or related to any of the foregoing (collectively\n“Intellectual Property”). All copyrightable Invention Ideas are intended by Employee to be a “work-made-for-hire” by Employee for Company and\nowned by Company pursuant to Section 201 (b) of Title 17 of the United States Code.\n(b) Employee shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such\nother agreements, certificates, instruments and documents, as the Company may reasonably request in order to obtain patent or copyright registration\non all Invention Ideas and Intellectual Property , and shall execute and deliver all documents, instruments and agreements, including the formal\nexecution of an assignment of copyright and/or patent application or issued patent, and do all things necessary or requested by the Company, in order\nto enable Company to ultimately and finally obtain and enforce full and exclusive title to all Invention Ideas and Intellectual Property and all rights\nassigned pursuant to this Section 7. Employee hereby appoints the Company as Employee’s irrevocable attorney-in-fact for the purpose of executing\nand delivering all such documents, instruments and agreements, and performing all such acts, with the same legal force and effect as if executed and\ndelivered and taken by Employee.\n(c) If for any reason the foregoing assignment is determined to be unenforceable Employee grants to Company a perpetual, irrevocable,\nworldwide, royalty-free, exclusive, sub-licensable right and license to exploit and exercise all such Invention Ideas and Intellectual Property.\n(d) Because of the difficulty of establishing when Employee first conceives of or develops Intellectual Property, proprietary rights or work\nproduct or whether such Intellectual Property, proprietary rights or work product results from access to Company’s confidential and proprietary\ninformation or\n_2-\nequipment, facilities or data, Employee agrees that any Intellectual Property, proprietary rights and work product shall be presumed to be an\nInvention Idea if it is conceived, developed, used, sold, exploited or reduced to practice by Employee or with the aid of Employee within one year\nafter the normal termination of Employee’s employment with Company. Employee can rebut that presumption if Employee proves that the\nintellectual property, proprietary rights and work product (i) was first conceived or developed after termination of Employee’s employment with and\nby Company; (ii) was conceived or developed entirely on Employee’s own time without using Company’s equipment, supplies, facilities or\nconfidential and proprietary information; and (iii) did not result from any work performed by Employee for or on behalf of Company.\n(e) Employee acknowledges that there is no intellectual property, proprietary right or work product that Employee desires not to be deemed\nInvention Ideas or Intellectual Property and thus to exclude from the above provisions of this Agreement. To the best of Employee’s knowledge,\nthere is no other existing contract in conflict with this Agreement or any other contract to assign ideas, processes, trademarks, service marks,\ninventions, technology, computer programs, original works of authorship, designs, formulas, discoveries, patents or copyrights that is now in\nexistence between Employee and any other person or entity.\n(f) This Section 7 shall not operate to require Employee to assign to Company any of Employee’s rights to inventions, intellectual properties or\nwork products that would not be assignable under the provisions of California Labor Code Section 2870. Employee represents and warrants to\nCompany that this paragraph constitutes Company’s written notification to Employee of the provisions of Section 2870 of the California Labor\nCode, and Employee represents and warrants to Company that Employee has reviewed Section 2870 of the California Labor Code.\n8. Unfair Competition and Protection of Proprietary Information.\n \n(a) Employee shall not at any time (including after Employee’s employment with Company terminates) divulge, furnish or make accessible to\nanyone any of Company’s Proprietary Information, or use in any way any of Company’s Proprietary Information other than as reasonably required to\nperform Employee’s duties under this Agreement. Employee shall not undertake any other acts or omissions that would reduce the value to Company\nof Company’s Proprietary Information. The restrictions on Employee’s use of Company’s Proprietary Information shall not apply to knowledge or\ninformation that Employee can prove is part of the public domain through no fault of Employee. Employee agrees that such restrictions are fair and\nreasonable.\n(b) Employee agrees that Company’s Proprietary Information constitutes a unique and valuable asset of Company that Company acquired at\ngreat time and expense, and which is secret and confidential and will only be available to or communicated to Employee in confidence in the course\nof Employee’s provision of services to Company. Employee also agrees that any disclosure or other use of Company’s Proprietary Information other\nthan for Company’s sole benefit would be wrongful, would constitute unfair competition and will cause irreparable and incalculable harm to\nCompany and to its subsidiaries, affiliates and divisions. In addition to all other remedies Company may have, it shall have the right to seek and\nobtain appropriate injunctive and other equitable relief, including emergency relief, to prevent any violations of this Section 8.\n(c) Employee agrees that Company’s employees constitute a valuable asset of Company. Employee agrees that Employee shall not, during the\nTerm and for a period of two years thereafter, directly or indirectly, for Employee or on behalf of any other person or entity, solicit any person who\nwas an employee of or consultant to Company (at any time while Employee is performing any services for Company, or at any time within twelve\nmonths prior to or after such solicitation) for a competing\n_3-\nbusiness or otherwise induce or attempt to induce any such persons to terminate their employment or relationship with Company or otherwise to\ndisrupt or interfere, or attempt to disrupt or interfere, with Company’s employment or relationships with such persons. Employee agrees that any\nsuch solicitation, inducement or interference would be wrongful and would constitute unfair competition, and will cause irreparable and incalculable\nharm to Company. Further, Employee shall not engage in any other unfair competition with Company. Employee agrees that such restrictions are fair\nand reasonable.\n(d) Employee recognizes and agrees that Employee has no expectation of privacy with respect to Company’s telecommunications, networking\nor information processing systems (including stored computer files, e-mail messages and voice messages), and that Employee’s activity, and any\nfiles or messages, on or using any of those systems may be monitored at any time without notice.\n(e) As used in this Agreement, “Company’s Proprietary Information” means any knowledge, trade secrets (including “trade secrets” as defined\nin Section 3426.1 of the California Civil Code), Invention Ideas, proprietary rights or proprietary information, intangible assets or property, and other\nintellectual property (whether or not copyrighted or copyrightable or patented or patentable), information and materials (including processes,\ntrademarks, trade names, service marks, service mark applications, copyrights, mask work rights, technology, patents, patent applications and works\nof authorship), in whatever form, including electronic form, and all goodwill relating or appurtenant thereto, owned or licensed by Company or any\nof its subsidiaries, affiliates or divisions, or directly or indirectly useful in any aspect of the business of Company or its subsidiaries, affiliates or\ndivisions, whether or not marked as confidential or proprietary and whether developed by Employee, by Company or its subsidiaries, affiliates or\ndivisions or by others. Without limiting the foregoing, Company’s Proprietary Information includes (a) the names, locations, practices and\nrequirements of any of Company’s customers, prospective customers, vendors, suppliers and personnel and any other persons having a business\nrelationship with Company; (b) confidential or secret development or research work of Company or its subsidiaries, affiliates or divisions, including\ninformation concerning any future or proposed services or products; (c) Company’s accounting, cost, revenue and other financial records and\ndocuments and the contents thereof; (d) Company’s documents, contracts, agreements, correspondence and other similar business records;\n(e) confidential or secret designs, software code, know how, processes, formulae, plans and devices; and (f) any other confidential or secret aspect of\nthe business of Company or its subsidiaries, affiliates or divisions.\n9. Employee’s Activities. During the term of the Consulting Agreement, neither Employee nor any person or entity acting with or on\nEmployee’s behalf, nor any person or entity under the control of or affiliated with Employee, shall, directly or indirectly, in any way Compete with\nthe Company. Employee agrees that, if Employee has any business to transact on Employee’s own account that is similar to the business entrusted to\nEmployee by Company, Employee shall notify Company and always give preference to Company’s business. Employee agrees that such restrictions\nare fair and reasonable. For purposes of this Agreement, “Compete” means doing any of the following: (i) selling products or services to any person\nor entity that was or is (at any time, including during the Term and the period when the provisions of this paragraph are in effect) a client or customer\nof Company (or its subsidiaries, affiliates or divisions) or on a list of prospective clients or customers of Company, or calling on, soliciting, taking\naway or accepting any such person or entity as a client or customer, or any attempt or offer to do any of the foregoing; (ii) entering into, or any\nattempt or offer to enter into, any business, enterprise or activity that is in any way similar to or otherwise competitive with the business that the\nCompany (or its subsidiaries, affiliates or divisions) conducted at any time during the Term or any time the provisions of this paragraph are in effect,\nor (iii) directly or indirectly assisting any person or entity to take or attempt or offer to take any of the actions described in the foregoing clauses (i)\nor (ii).\n10. Remedies.\n(a) The Employee agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the Company, entitling\nthe Company to obtain injunctive relief in addition to all legal remedies at its disposal.\n(b) In addition to all remedies available hereunder, at law or in equity, if Employee breaches any provision of Section 8 of this Agreement,\nCompany shall have the right to invoke any and all remedies provided under the California Uniform Trade Secrets Act (California Civil Code\n883426, et seq.) or other statutes or common law remedies of similar effect.\n(c) The remedies provided to Company in this Section 10 are cumulative, and not exclusive, of any other remedies that may be available to\nCompany at law or in equity.\n11. No License. Nothing in this Agreement is intended to grant any rights to the Employee under any patent, copyright or other proprietary\nrights of the Company, nor shall this Agreement grant the Employee any rights in or to Confidential Information except as expressly set forth herein.\n12. Term. This Agreement shall survive the term of the Consulting Agreement and shall continue until such time as all Confidential\nInformation disclosed hereunder becomes publicly known and made generally available through no action or inaction of the Employee.\n13. Miscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This Agreement\nshall be governed by the laws of the State of California, without reference to conflict of laws principles. This document contains the entire agreement\nbetween the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not constitute a waiver\nthereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties\nhereto.\nIN WITNESS WHEREOF, the parties hereto have executed or caused their duly authorized officers to execute this Agreement as of the date\nfirst above written.\nBIOLARGO, INC. (“COMPANY”)\nBy /s/ Dennis Calvert\nDennis Calvert\nTitle: Chief Executive Officer\n“EMPLOYEE”\n/s/ Joseph L. Provenzano	Appendix A\nNON-DISCLOSURE AGREEMENT\n(Employee)\nThis Non-Disclosure Agreement ("Agreement") dated as of January 1, 2008 is entered in by and between BioLargo, Inc. (the "Company") and\nJoseph Provenzano (the "Employee"), and sets forth the terms and conditions on which Company is willing to disclose certain material non-public\ninformation about the Company.\n1. Purpose. In connection with his retention as an employee to the Company pursuant to an agreement dated as of even date (the\n"Employment Agreement"), the Company may disclose to the Employee certain confidential technical and business information which the Company\nrequires the Employee to treat as confidential.\n2. Definition. "Confidential Information" means any information disclosed to the Employee by the Company, either directly or indirectly in\nwriting, orally or by inspection of tangible objects, including without limitation documents, prototypes and forecasted financial information.\nConfidential Information may also include information disclosed to the Company by third parties. Confidential Information shall not, however,\ninclude any information which the Employee can establish by written documentation (i) was publicly known and made generally available in the\npublic domain prior to the time of disclosure to the Employee by the Company; (ii) becomes publicly known and made generally available\nafter\ndisclosure to the Employee by the Company through no action or inaction of the Employee; (iii) is in the possession of the Employee, without\nconfidentiality restrictions, at the time of disclosure by the Company as shown by the Employee's files and records immediately prior to the time\nof\ndisclosure; (iv) is developed independently of the Confidential Information, as shown by written records prepared contemporaneously with such\nindependent development; or (v) is disclosed pursuant to the requirement of a United States government agency or judicial body, provided that the\nEmployee shall provide reasonable advice notice thereof to enable the Company to seek a protective order or otherwise prevent such disclosure.\n3. Non-use and Non-disclosure. The Employee agrees not to use any Confidential Information for any purpose except within the proper scope\nof his duties pursuant to the Consulting Agreement. The Employee agrees not to disclose any Confidential Information to third parties, except to\nthose individuals who, with the prior written consent of the Company, are designated as authorized to receive such Confidential Information in\norder\nfor the Employee to perform his duties and obligation sunder the Consulting Agreement. The Employee agrees that each third party receiving any\nConfidential Information will enter into a separate Non-Disclosure Agreement with the Company.\n4. Maintenance of Confidentiality.. The Employee agrees that it shall take all commercially reasonable measures to protect the secrecy of and\navoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Employee shall take at least those\nmeasures that the Employee takes to protect its own confidential information of a similar nature and shall have its employees or advisors who have\naccess to Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the provisions hereof, prior to any\ndisclosure of Confidential Information to such employees. The Employee shall immediately notify the Company in the event of any unauthorized\nuse or disclosure of any Confidential Information.\n1\n5. No Warranty.. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS". COMPANY MAKES NO WARRANTIES, EXPRESS,\nIMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n6. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which are in the\npossession of the Employee shall be and remain the property of the Company and shall be promptly returned to the Company upon request for any\nreason or for no reason.\n7. Work Made for Hire.\n(a) Employee and/or designates of the Employee shall promptly and fully inform the Company of, and disclose to the Company any and all\nideas, processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, fictitious business names,\ntechnology, patents, know-how, trade secrets, computer programs, original works of authorship, formulae, concepts, themes, inventions, designs,\ncreations, new works, derivative works and discoveries, and all applications, improvements, rights and claims related to any the foregoing, and\nall\nother intellectual property, proprietary rights and work product, whether or not patentable or copyrightable, registered or unregistered or domestic or\nforeign, and whether or not relating to a published work, that Employee develops, makes, creates, conceives or reduces to practice during the term of\nthe Consulting Agreement, whether alone or in collaboration with others (collectively, "Invention Ideas"). Employee hereby assigns to the\nCompany exclusively in perpetuity throughout the world all right, title and interest (choate or inchoate) in (i) the Invention Ideas, (ii) all precursors,\nportions and work in progress with respect thereto and all inventions, works of authorship, mask works, technology, information, know-how,\nmaterials and tools relating thereto or to the development, support or maintenance thereof and (iii) all copyrights, patent rights, trade secret rights,\ntrademark rights, mask works rights, sui generis database rights and all other intellectual and industrial property rights of any sort and all business,\ncontract\nrights,\ncauses of action, and goodwill in, incorporated or embodied in, used to develop, or related to any of the foregoing (collectively\n"Intellectual Property"). All copyrightable Invention Ideas are intended by Employee to be a "work-made-for-hire" by Employee for Company and\nowned by Company pursuant to Section 201 (b) of Title 17 of the United States Code.\n(b) Employee shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such\nother agreements, certificates, instruments and documents, as the Company may reasonably request in order to obtain patent or copyright registration\non all Invention Ideas and Intellectual Property and shall execute and deliver all documents, instruments and agreements, including the formal\nexecution of an assignment of copyright and/or patent application or issued patent, and do all things necessary or requested by the Company, in order\nto enable Company to ultimately and finally obtain and enforce full and exclusive title to all Invention Ideas and Intellectual Property and all rights\nassigned pursuant to this Section 7. Employee hereby appoints the Company as Employee's irrevocable attorney-in-fact for the purpose of\nexecuting\nand delivering all such documents, instruments and agreements, and performing all such acts, with the same legal force and effect as if executed and\ndelivered and taken by Employee.\n(c) If for any reason the foregoing assignment is determined to be unenforceable Employee grants to Company a perpetual, irrevocable,\nworldwide, royalty-free, exclusive, sub-licensable right and license to exploit and exercise all such Invention Ideas and Intellectual Property.\n(d) Because of the difficulty of establishing when Employee first conceives of or develops Intellectual Property, proprietary rights or work\nproduct or whether such Intellectual Property, proprietary rights or work product results from access to Company's confidential and proprietary\ninformation or\n2\nequipment facilities or data, Employee agrees that any Intellectual Property, proprietary rights and work product shall be presumed to be an\nInvention Idea if it is conceived, developed, used, sold, exploited or reduced to practice by Employee or with the aid of Employee within one year\nafter the normal termination of Employee's employment with Company Employee can rebut that presumption if Employee proves that the\nintellectual property, proprietary rights and work product (i) was first conceived or developed after termination of Employee's employment with and\nby Company; (ii) was conceived or developed entirely on Employee's own time without using Company's equipment, supplies, facilities or\nconfidential and proprietary information; and (iii) did not result from any work performed by Employee for or on behalf of Company.\n(e) Employee acknowledges that there is no intellectual property, proprietary right or work product that Employee desires not to be deemed\nInvention Ideas or Intellectual Property and thus to exclude from the above provisions of this Agreement. To the best of Employee's knowledge,\nthere is no other existing contract in conflict with this Agreement or any other contract to assign ideas, processes, trademarks, service marks,\ninventions, technology, computer programs, original works of authorship, designs, formulas, discoveries, patents or copyrights that is now in\nexistence between Employee and any other person or entity.\n(f) This Section 7 shall not operate to require Employee to assign to Company any of Employee's rights to inventions, intellectual properties or\nwork products that would not be assignable under the provisions of California Labor Code Section 2870. Employee represents and warrants to\nCompany that this paragraph constitutes Company's written notification to Employee of the provisions of Section 2870 of the California Labor\nCode, and Employee represents and warrants to Company that Employee has reviewed Section 2870 of the California Labor Code.\n8. Unfair Competition and Protection of Proprietary Information.\n(a) Employee shall not at any time (including after Employee's employment with Company terminates) divulge, furnish or make accessible to\nanyone any of Company's Proprietary Information, or use in any way any of Company's Proprietary Information other than as reasonably required to\nperform Employee's duties under this Agreement. Employee shall not undertake any other acts or omissions that would reduce the value to Company\nof Company's Proprietary Information. The restrictions on Employee's use of Company's Proprietary Information shall not apply to knowledge or\ninformation that Employee can prove is part of the public domain through no fault of Employee. Employee agrees that such restrictions are fair and\nreasonable.\n(b) Employee agrees that Company's Proprietary Information constitutes a unique and valuable asset of Company that Company acquired at\ngreat time and expense, and which is secret and confidential and will only be available to or communicated to Employee in confidence in the course\nof Employee's provision of services to Company. Employee also agrees that any disclosure or other use of Company's Proprietary Information other\nthan for Company's sole benefit would be wrongful, would constitute unfair competition and will cause irreparable and incalculable harm to\nCompany and to its subsidiaries, affiliates and divisions. In addition to all other remedies Company may have, it shall have the right to seek and\nobtain appropriate injunctive and other equitable relief, including emergency relief, to prevent any violations of this Section 8.\n(c) Employee agrees that Company's employees constitute a valuable asset of Company. Employee agrees that Employee shall not, during the\nTerm and for a period of two years thereafter, directly or indirectly, for Employee or on behalf of any other person or entity, solicit any person who\nwas an employee of or consultant to Company (at any time while Employee is performing any services for Company, or at any time within twelve\nmonths prior to or after such solicitation) for a competing\n- 3\nbusiness or otherwise induce or attempt to induce any such persons to terminate their employment or relationship with Company or otherwise to\ndisrupt or interfere, or attempt to disrupt or interfere, with Company's employment or relationships with such persons. Employee agrees that any\nsuch solicitation, inducement or interference would be wrongful and would constitute unfair competition, and will cause irreparable and incalculable\nharm to Company. Further, Employee shall not engage in any other unfair competition with Company. Employee agrees that such restrictions are fair\nand reasonable.\n(d) Employee recognizes and agrees that Employee has no expectation of privacy with respect to Company's telecommunications, networking\nor information processing systems (including stored computer files, e-mail messages and voice messages), and that Employee's activity, and any\nfiles or messages, on or using any of those systems may be monitored at any time without notice.\n(e) As used in this Agreement, "Company's Proprietary Information" means any knowledge, trade secrets (including "trade secrets" as defined\nin Section 3426.1 of the California Civil Code), Invention Ideas, proprietary rights or proprietary information, intangible assets or property, and other\nintellectual property (whether or not copyrighted or copyrightable or patented or patentable), information and materials (including processes,\ntrademarks, trade names, service marks, service mark applications, copyrights, mask work rights, technology, patents, patent applications and works\nof authorship), in whatever form, including electronic form, and all goodwill relating or appurtenant thereto, owned or licensed by Company or any\nof its subsidiaries, affiliates or divisions, or directly or indirectly useful in any aspect of the business of Company or its subsidiaries, affiliates or\ndivisions, whether or not marked as confidential or proprietary and whether developed by Employee, by Company or its subsidiaries, affiliates or\ndivisions or by others. Without limiting the foregoing, Company's Proprietary Information includes (a) the names, locations, practices and\nrequirements of any of Company's customers, prospective customers, vendors, suppliers and personnel and any other persons having a business\nrelationship with Company; (b) confidential or secret development or research work of Company or its subsidiaries, affiliates or divisions, including\ninformation concerning any future or proposed services or products; (c) Company's accounting, cost, revenue and other financial records and\ndocuments and the contents thereof; (d) Company's documents, contracts, agreements, correspondence and other similar business records;\n(e) confidential or secret designs, software code, know how, processes, formulae, plans and devices; and (f) any other confidential or secret aspect of\nthe business of Company or its subsidiaries, affiliates or divisions.\n9. Employee's Activities. During the term of the Consulting Agreement, neither Employee nor any person or entity acting with or on\nEmployee's behalf, nor any person or entity under the control of or affiliated with Employee, shall, directly or indirectly, in any way Compete with\nthe Company. Employee agrees that, if Employee has any business to transact on Employee's own account that is similar to the business entrusted\nto\nEmployee by Company, Employee shall notify Company and always give preference to Company's business. Employee agrees that such restrictions\nare fair and reasonable. For purposes of this Agreement, "Compete" means doing any of the following: (i) selling products or services to any person\nor entity that was or is (at any time, including during the Term and the period when the provisions of this paragraph are in effect) a client or customer\nof Company (or its subsidiaries, affiliates or divisions) or on a list of prospective clients or customers of Company, or calling on, soliciting, taking\naway or accepting any such person or entity as a client or customer, or any attempt or offer to do any of the foregoing; (ii) entering into, or any\nattempt or offer to enter into, any business, enterprise or activity that is in any way similar to or otherwise competitive with the business that the\nCompany (or its subsidiaries, affiliates or divisions) conducted at any time during the Term or any time the provisions of this paragraph are in effect,\nor (iii) directly or indirectly assisting any person or entity to take or attempt or offer to take any of the actions described in the foregoing clauses (i)\nor (ii).\n10. Remedies.\n4\n(a) The Employee agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the Company, entitling\nthe Company to obtain injunctive relief in addition to all legal remedies at its disposal.\n(b) In addition to all remedies available hereunder, at law or in equity, if Employee breaches any provision of Section 8 of this Agreement,\nCompany shall have the right to invoke any and all remedies provided under the California Uniform Trade Secrets Act (California Civil Code\n$83426, et seq.) or other statutes or common law remedies of similar effect.\n(c) The remedies provided to Company in this Section 10 are cumulative, and not exclusive, of any other remedies that may be available\nto\nCompany at law or in equity.\n11. No License. Nothing in this Agreement is intended to grant any rights to the Employee under any patent, copyright or other proprietary\nrights of the Company, nor shall this Agreement grant the Employee any rights in or to Confidential Information except as expressly set forth herein.\n12. Term. This Agreement shall survive the term of the Consulting Agreement and shall continue until such time as all Confidential\nInformation disclosed hereunder becomes publicly known and made generally available through no action or inaction of the Employee.\n13. Miscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This Agreement\nshall be governed by the laws of the State of California, without reference to conflict of laws principles. This document contains the entire agreement\nbetween the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not constitute a waiver\nthereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties\nhereto.\nIN WITNESS WHEREOF, the parties hereto have executed or caused their duly authorized officers to execute this Agreement as of the date\nfirst above written.\nBIOLARGO, INC. ("COMPANY")\nBy /s/ Dennis Calvert\nDennis Calvert\nTitle: Chief Executive Officer\n"EMPLOYEE"\n/s/ Joseph L. Provenzano\n5	Appendix A\nNON-DISCLOSURE AGREEMENT\n(Employee)\nThis Non-Disclosure Agreement (“Agreement”) dated as of January 1, 2008 is entered in by and between BioLargo, Inc. (the “Company”) and\nJoseph Provenzano (the “Employee”), and sets forth the terms and conditions on which Company is willing to disclose certain material non-public\ninformation about the Company.\n1. Purpose. In connection with his retention as an employee to the Company pursuant to an agreement dated as of even date (the\n“Employment Agreement”), the Company may disclose to the Employee certain confidential technical and business information which the Company\nrequires the Employee to treat as confidential.\n2. Definition. “Confidential Information” means any information disclosed to the Employee by the Company, either directly or indirectly in\nwriting, orally or by inspection of tangible objects, including without limitation documents, prototypes and forecasted financial information.\nConfidential Information may also include information disclosed to the Company by third parties. Confidential Information shall not, however,\ninclude any information which the Employee can establish by written documentation (i) was publicly known and made generally available in the\npublic domain prior to the time of disclosure to the Employee by the Company; (ii) becomes publicly known and made generally available after\ndisclosure to the Employee by the Company through no action or inaction of the Employee; (iii) is in the possession of the Employee, without\nconfidentiality restrictions, at the time of disclosure by the Company as shown by the Employee’s files and records immediately prior to the time of\ndisclosure; (iv) is developed independently of the Confidential Information, as shown by written records prepared contemporaneously with such\nindependent development; or (v) is disclosed pursuant to the requirement of a United States government agency or judicial body, provided that the\nEmployee shall provide reasonable advice notice thereof to enable the Company to seek a protective order or otherwise prevent such disclosure.\n3. Non-use and Non-disclosure. The Employee agrees not to use any Confidential Information for any purpose except within the proper scope\nof his duties pursuant to the Consulting Agreement. The Employee agrees not to disclose any Confidential Information to third parties, except to\nthose individuals who, with the prior written consent of the Company, are designated as authorized to receive such Confidential Information in order\nfor the Employee to perform his duties and obligation sunder the Consulting Agreement. The Employee agrees that each third party receiving any\nConfidential Information will enter into a separate Non-Disclosure Agreement with the Company.\n4. Maintenance of Confidentiality. The Employee agrees that it shall take all commercially reasonable measures to protect the secrecy of and\navoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Employee shall take at least those\nmeasures that the Employee takes to protect its own confidential information of a similar nature and shall have its employees or advisors who have\naccess to Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the provisions hereof, prior to any\ndisclosure of Confidential Information to such employees. The Employee shall immediately notify the Company in the event of any unauthorized\nuse or disclosure of any Confidential Information.\n-1-\n5. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. COMPANY MAKES NO WARRANTIES, EXPRESS,\nIMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n6. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which are in the\npossession of the Employee shall be and remain the property of the Company and shall be promptly returned to the Company upon request for any\nreason or for no reason.\n7. Work Made for Hire.\n(a) Employee and/or designates of the Employee shall promptly and fully inform the Company of, and disclose to the Company , any and all\nideas, processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, fictitious business names,\ntechnology, patents, know-how, trade secrets, computer programs, original works of authorship, formulae, concepts, themes, inventions, designs,\ncreations, new works, derivative works and discoveries, and all applications, improvements, rights and claims related to any the foregoing, and all\nother intellectual property, proprietary rights and work product, whether or not patentable or copyrightable, registered or unregistered or domestic or\nforeign, and whether or not relating to a published work, that Employee develops, makes, creates, conceives or reduces to practice during the term of\nthe Consulting Agreement, whether alone or in collaboration with others (collectively, “Invention Ideas”). Employee hereby assigns to the\nCompany exclusively in perpetuity throughout the world all right, title and interest (choate or inchoate) in (i) the Invention Ideas, (ii) all precursors,\nportions and work in progress with respect thereto and all inventions, works of authorship, mask works, technology, information, know-how,\nmaterials and tools relating thereto or to the development, support or maintenance thereof and (iii) all copyrights, patent rights, trade secret rights,\ntrademark rights, mask works rights, sui generis database rights and all other intellectual and industrial property rights of any sort and all business,\ncontract rights, causes of action, and goodwill in, incorporated or embodied in, used to develop, or related to any of the foregoing (collectively\n“Intellectual Property”). All copyrightable Invention Ideas are intended by Employee to be a “work-made-for-hire” by Employee for Company and\nowned by Company pursuant to Section 201 (b) of Title 17 of the United States Code.\n(b) Employee shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such\nother agreements, certificates, instruments and documents, as the Company may reasonably request in order to obtain patent or copyright registration\non all Invention Ideas and Intellectual Property , and shall execute and deliver all documents, instruments and agreements, including the formal\nexecution of an assignment of copyright and/or patent application or issued patent, and do all things necessary or requested by the Company, in order\nto enable Company to ultimately and finally obtain and enforce full and exclusive title to all Invention Ideas and Intellectual Property and all rights\nassigned pursuant to this Section 7. Employee hereby appoints the Company as Employee’s irrevocable attorney-in-fact for the purpose of executing\nand delivering all such documents, instruments and agreements, and performing all such acts, with the same legal force and effect as if executed and\ndelivered and taken by Employee.\n(c) If for any reason the foregoing assignment is determined to be unenforceable Employee grants to Company a perpetual, irrevocable,\nworldwide, royalty-free, exclusive, sub-licensable right and license to exploit and exercise all such Invention Ideas and Intellectual Property.\n(d) Because of the difficulty of establishing when Employee first conceives of or develops Intellectual Property, proprietary rights or work\nproduct or whether such Intellectual Property, proprietary rights or work product results from access to Company’s confidential and proprietary\ninformation or\n-2-\nequipment, facilities or data, Employee agrees that any Intellectual Property, proprietary rights and work product shall be presumed to be an\nInvention Idea if it is conceived, developed, used, sold, exploited or reduced to practice by Employee or with the aid of Employee within one year\nafter the normal termination of Employee’s employment with Company. Employee can rebut that presumption if Employee proves that the\nintellectual property, proprietary rights and work product (i) was first conceived or developed after termination of Employee’s employment with and\nby Company; (ii) was conceived or developed entirely on Employee’s own time without using Company’s equipment, supplies, facilities or\nconfidential and proprietary information; and (iii) did not result from any work performed by Employee for or on behalf of Company.\n(e) Employee acknowledges that there is no intellectual property, proprietary right or work product that Employee desires not to be deemed\nInvention Ideas or Intellectual Property and thus to exclude from the above provisions of this Agreement. To the best of Employee’s knowledge,\nthere is no other existing contract in conflict with this Agreement or any other contract to assign ideas, processes, trademarks, service marks,\ninventions, technology, computer programs, original works of authorship, designs, formulas, discoveries, patents or copyrights that is now in\nexistence between Employee and any other person or entity.\n(f) This Section 7 shall not operate to require Employee to assign to Company any of Employee’s rights to inventions, intellectual properties or\nwork products that would not be assignable under the provisions of California Labor Code Section 2870. Employee represents and warrants to\nCompany that this paragraph constitutes Company’s written notification to Employee of the provisions of Section 2870 of the California Labor\nCode, and Employee represents and warrants to Company that Employee has reviewed Section 2870 of the California Labor Code.\n8. Unfair Competition and Protection of Proprietary Information.\n(a) Employee shall not at any time (including after Employee’s employment with Company terminates) divulge, furnish or make accessible to\nanyone any of Company’s Proprietary Information, or use in any way any of Company’s Proprietary Information other than as reasonably required to\nperform Employee’s duties under this Agreement. Employee shall not undertake any other acts or omissions that would reduce the value to Company\nof Company’s Proprietary Information. The restrictions on Employee’s use of Company’s Proprietary Information shall not apply to knowledge or\ninformation that Employee can prove is part of the public domain through no fault of Employee. Employee agrees that such restrictions are fair and\nreasonable.\n(b) Employee agrees that Company’s Proprietary Information constitutes a unique and valuable asset of Company that Company acquired at\ngreat time and expense, and which is secret and confidential and will only be available to or communicated to Employee in confidence in the course\nof Employee’s provision of services to Company. Employee also agrees that any disclosure or other use of Company’s Proprietary Information other\nthan for Company’s sole benefit would be wrongful, would constitute unfair competition and will cause irreparable and incalculable harm to\nCompany and to its subsidiaries, affiliates and divisions. In addition to all other remedies Company may have, it shall have the right to seek and\nobtain appropriate injunctive and other equitable relief, including emergency relief, to prevent any violations of this Section 8.\n(c) Employee agrees that Company’s employees constitute a valuable asset of Company. Employee agrees that Employee shall not, during the\nTerm and for a period of two years thereafter, directly or indirectly, for Employee or on behalf of any other person or entity, solicit any person who\nwas an employee of or consultant to Company (at any time while Employee is performing any services for Company, or at any time within twelve\nmonths prior to or after such solicitation) for a competing\n-3-\nbusiness or otherwise induce or attempt to induce any such persons to terminate their employment or relationship with Company or otherwise to\ndisrupt or interfere, or attempt to disrupt or interfere, with Company’s employment or relationships with such persons. Employee agrees that any\nsuch solicitation, inducement or interference would be wrongful and would constitute unfair competition, and will cause irreparable and incalculable\nharm to Company. Further, Employee shall not engage in any other unfair competition with Company. Employee agrees that such restrictions are fair\nand reasonable.\n(d) Employee recognizes and agrees that Employee has no expectation of privacy with respect to Company’s telecommunications, networking\nor information processing systems (including stored computer files, e-mail messages and voice messages), and that Employee’s activity, and any\nfiles or messages, on or using any of those systems may be monitored at any time without notice.\n(e) As used in this Agreement, “Company’s Proprietary Information” means any knowledge, trade secrets (including “trade secrets” as defined\nin Section 3426.1 of the California Civil Code), Invention Ideas, proprietary rights or proprietary information, intangible assets or property, and other\nintellectual property (whether or not copyrighted or copyrightable or patented or patentable), information and materials (including processes,\ntrademarks, trade names, service marks, service mark applications, copyrights, mask work rights, technology, patents, patent applications and works\nof authorship), in whatever form, including electronic form, and all goodwill relating or appurtenant thereto, owned or licensed by Company or any\nof its subsidiaries, affiliates or divisions, or directly or indirectly useful in any aspect of the business of Company or its subsidiaries, affiliates or\ndivisions, whether or not marked as confidential or proprietary and whether developed by Employee, by Company or its subsidiaries, affiliates or\ndivisions or by others. Without limiting the foregoing, Company’s Proprietary Information includes (a) the names, locations, practices and\nrequirements of any of Company’s customers, prospective customers, vendors, suppliers and personnel and any other persons having a business\nrelationship with Company; (b) confidential or secret development or research work of Company or its subsidiaries, affiliates or divisions, including\ninformation concerning any future or proposed services or products; (c) Company’s accounting, cost, revenue and other financial records and\ndocuments and the contents thereof; (d) Company’s documents, contracts, agreements, correspondence and other similar business records;\n(e) confidential or secret designs, software code, know how, processes, formulae, plans and devices; and (f) any other confidential or secret aspect of\nthe business of Company or its subsidiaries, affiliates or divisions.\n9. Employee’s Activities. During the term of the Consulting Agreement, neither Employee nor any person or entity acting with or on\nEmployee’s behalf, nor any person or entity under the control of or affiliated with Employee, shall, directly or indirectly, in any way Compete with\nthe Company. Employee agrees that, if Employee has any business to transact on Employee’s own account that is similar to the business entrusted to\nEmployee by Company, Employee shall notify Company and always give preference to Company’s business. Employee agrees that such restrictions\nare fair and reasonable. For purposes of this Agreement, “Compete” means doing any of the following: (i) selling products or services to any person\nor entity that was or is (at any time, including during the Term and the period when the provisions of this paragraph are in effect) a client or customer\nof Company (or its subsidiaries, affiliates or divisions) or on a list of prospective clients or customers of Company, or calling on, soliciting, taking\naway or accepting any such person or entity as a client or customer, or any attempt or offer to do any of the foregoing; (ii) entering into, or any\nattempt or offer to enter into, any business, enterprise or activity that is in any way similar to or otherwise competitive with the business that the\nCompany (or its subsidiaries, affiliates or divisions) conducted at any time during the Term or any time the provisions of this paragraph are in effect,\nor (iii) directly or indirectly assisting any person or entity to take or attempt or offer to take any of the actions described in the foregoing clauses (i)\nor (ii).\n10. Remedies.\n-4-\n(a) The Employee agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the Company, entitling\nthe Company to obtain injunctive relief in addition to all legal remedies at its disposal.\n(b) In addition to all remedies available hereunder, at law or in equity, if Employee breaches any provision of Section 8 of this Agreement,\nCompany shall have the right to invoke any and all remedies provided under the California Uniform Trade Secrets Act (California Civil Code\n§§3426, et seq.) or other statutes or common law remedies of similar effect.\n(c) The remedies provided to Company in this Section 10 are cumulative, and not exclusive, of any other remedies that may be available to\nCompany at law or in equity.\n11. No License. Nothing in this Agreement is intended to grant any rights to the Employee under any patent, copyright or other proprietary\nrights of the Company, nor shall this Agreement grant the Employee any rights in or to Confidential Information except as expressly set forth herein.\n12. Term. This Agreement shall survive the term of the Consulting Agreement and shall continue until such time as all Confidential\nInformation disclosed hereunder becomes publicly known and made generally available through no action or inaction of the Employee.\n13. Miscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This Agreement\nshall be governed by the laws of the State of California, without reference to conflict of laws principles. This document contains the entire agreement\nbetween the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not constitute a waiver\nthereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties\nhereto.\nIN WITNESS WHEREOF, the parties hereto have executed or caused their duly authorized officers to execute this Agreement as of the date\nfirst above written.\nBIOLARGO, INC. (“COMPANY”)\nBy /s/ Dennis Calvert\nDennis Calvert\nTitle: Chief Executive Officer\n“EMPLOYEE”\n/s/ Joseph L. Provenzano\n-5-
+5eb2af4610325bb5c670033270aa0bf1.pdf	jurisdiction	EX-10 .18 2 a06-2768 _1ex10d18.htm MATERIAL CONTRACTS\nEXHIBIT B\nNON-SOLICITATION AND NON -DISCLOSURE AGREEMENT\nTHIS NON-SOLICITATION AND NON -DISCLOSURE AGREEMENT (“Agreement”) is a part of the terms and conditions of the award issued by The St. Paul Travelers Companies, Inc., a Minnesota corporation with its principal place\nof business located in St. Paul, Minnesota and its affiliated entities (collectively, the “Company”), in favor of the participant named in the term sheet (the “Employee”) to which this Agreement is attached as an exhibit.\nWITNESSETH:\nWHEREAS, the Employee is employed by the Company; and\nWHEREAS, the Company is engaged in the business of marketing and selling insurance and insurance-related products\nthroughout the United States.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants and obligations hereinafter set forth, the parties\nagree as follows:\n1.\nConsideration. As consideration for the execution of this Agreement, the Employee acknowledges receipt of an award(s)\nissued pursuant to the Company’s 2004 Stock Incentive Plan (the “Consideration”), as evidenced by term sheet(s) setting forth the\nterms and conditions of such award(s) to which this Agreement is attached as an exhibit, which constitutes good, valuable and\nindependent consideration for all of Employee’s covenants and obligations in this Agreement and above and beyond any\ncompensation Employee is entitled to receive from the Company.\n2.\nNon-Disclosure of Confidential Information.\n(a)\nEmployee recognizes that the Company has developed information that is confidential, proprietary and/or nonpublic that is\nrelated to its business, operations, services, finances, clients, customers, policyholders, vendors and agents (“Confidential\nInformation”). Employee understands and agrees that he/she is prohibited from using, disclosing, divulging or misappropriating any\nConfidential Information for his/her own personal benefit or for the benefit of any person or entity, except that Employee\nmay disclose Confidential Information pursuant to a properly issued subpoena, court order, other legal process, or official inquiry of a\nfederal, state or local taxing authority, or other governmental agency with a legitimate legal right to know the Confidential\nInformation. If disclosure is compelled of Employee by subpoena, court order or other legal process, or as otherwise required by law,\nEmployee agrees to notify Company as soon as notice of such process is received and before disclosure and/or appearance takes\nplace. Employee will use reasonable and prudent care to safeguard and prevent the unauthorized use or disclosure of Confidential\nInformation. Confidential Information shall not include any information that: (a) is or becomes a part of the public domain through\nno act or omission of Employee or is otherwise available to the public other than by breach of this Agreement; (b) was in Employee’s\nlawful possession prior to the disclosure and had not been obtained by Employee either directly or indirectly as a result of\nEmployee’s employment with or other service to the Company; (c) is disclosed to Employee by a third party who has authority from\nthe Company to make such disclosure and such disclosure to Employee is not confidential; or (d) is independently developed by\nEmployee outside of Employee’s employment with the Company and without the use of any Confidential Information. Employee\nfurther acknowledges that Employee, in the course of employment, has had and will have access to such Confidential Information.\n(b)\nEmployee agrees that every document, computer disk, electronic file, computerized information, computer software\nprogram, notation, record, diary, memorandum, development, investigation, or the like, and any method or manner of doing business\nof the Company containing Confidential Information made or acquired by the Employee during employment by the Company is and\nshall be the sole and exclusive property of Company. The Employee will deliver the same (and every copy, disk, abstract, summary,\nor reproduction of the same made by or for the Employee or acquired by the Employee) whenever the Company may so require and\nin any event prior to or at the termination of employment. Nothing in Section 2 is intended or shall be interpreted to mean that the\nCompany may withhold information, including computerized information, relating to Employee’s personal contacts and personal\ninformation that may be stored or contained in Employee’s physical or electronic files. The Company further agrees not to\nunreasonably withhold information relating to Employee’s business-related contacts, to the extent such information falls outside the\ndefinition of Confidential Information set forth in Section 2(a) above.\n5\n3.\nNon-Solicitation/Non-Interference.\n(a)\nThe parties understand and agree that this Agreement is intended to protect the Company against the Employee raiding its\nemployees and/or its business during the twelve (12) month period following the Separation Date (whether voluntary or involuntary)\n(the “Restricted Period”), while recognizing that after conclusion of his/her employment (the “Separation Date”), Employee is still\npermitted to freely compete with the Company, except to the extent Confidential Information is used in such solicitation and subject\nto certain restrictions set forth below. Further, nothing in this Agreement is intended to grant or limit any rights or claims as to any\nfuture employer of Employee. To this end, any court considering the enforcement of this Agreement for a breach of this Agreement,\nmust accept this statement of intent.\n(b)\nAfter Employee has left the employment of the Company and during the Restricted Period, Employee will not seek to\nrecruit or solicit, or assist in recruiting or soliciting, participate in or promote the solicitation of, interfere with, attempt to influence or\notherwise affect the employment of any person who was or is employed by the Company at any time during the last three months of\nEmployee’s employment or thereafter. Further, Employee shall not, on behalf of himself/herself or any other person, hire, employ or\nengage any such person. The parties agree that Employee shall not directly engage in the aforesaid conduct through a third party for\nthe purpose of colluding to avoid the restrictions in this Agreement. However, nothing in this Agreement precludes Employee from\ndirecting a third party (including but not limited to employees of his/her subsequent employer or a search firm) to broadly solicit,\nrecruit, and hire individuals, some of whom may be employees of the Company, provided that Employee does not specifically direct\nsuch third party to specifically target the Company’s employees generally or specific individual employees of the Company.\n(c)\nAfter Employee has left the employment of the Company, accepts a position as an employee, consultant or contractor with\na direct competitor of the Company, and during the Restricted Period, Employee will not utilize Confidential Information to seek to\nsolicit or assist in soliciting, participate in or otherwise promote the solicitation of, interference with, attempt to influence or\notherwise affect any person or entity, who is a client, customer, policyholder, or agent of the Company, to discontinue business with\nthe Company, and/or move that business elsewhere. Employee also agrees not to be directly and personally involved in the\nnegotiation or solicitation of any individual book roll over(s) or other book of business transfer arrangements involving the transfer of\nbusiness away from Company, even if Confidential Information is not involved. However, nothing in this Agreement precludes the\nEmployee from directing a third party (including but not limited to employees of his/her subsequent employer) to solicit, compete for,\nnegotiate and execute book roll over deals or other book of business transfer arrangements provided that (i) Confidential Information\nprovided by the Employee is not used, (ii) Employee is not personally and directly involved in such negotiations, and (iii) Employee\ndoes not direct such third party to target specific agents of Company. Furthermore, nothing in this Agreement precludes the\nEmployee from freely competing with the Company including but not limited to competing on an account by account or deal by deal\nbasis to the extent that he/she does not use Confidential Information.\n4.\nForfeiture of Consideration; Other Remedies. Employee agrees that if Employee breaches this Agreement during the\nRestricted Period, Employee will immediately forfeit any award that has not yet been paid, exercised or vested and that serves as\nConsideration for this Agreement. In addition, the Company will be entitled to recapture from Employee any and all compensatory\nvalue that Employee received within twelve months prior to or twelve months after the Separation Date from any award that has\nalready been paid, exercised or vested and that serves as Consideration for this Agreement. The value subject to recapture includes\nthe amount of any cash payment made to Employee upon exercise or settlement of the award, and/or the amount included as\ncompensation in the taxable income of Employee upon vesting or exercise of the award. Employee will promptly pay the full amount\nsubject to recapture to the Company upon demand in the form of cash or shares of Company Common Stock with a current fair\nmarket value equal to the amount subject to recapture. In addition to the remedies set forth in Sections 2, 3 and 4 of this Agreement,\nCompany may avail itself of any other remedies available under statute or common law.\n5.\nConsent to Jurisdiction. Jurisdiction and venue for enforcement of this Agreement, and for resolution of any dispute\nunder this Agreement, shall be exclusively in the federal or state courts in the state and county where the Employee resides at the time\nthat the Company commences an action under this Agreement. Employee agrees to notify Company of any changes in his/her\nresidence after the Separation Date.\n6.\nModification. This Agreement may not be terminated or modified without the express written consent of both the\nEmployee and the Company.\n6\n7.\nEmployment At Will. Employee specifically recognizes and agrees that nothing in this Agreement shall be deemed to\nestablish an employment relationship on a basis other than terminable at will, that the Company is not obligated to continue\nEmployee’s employment for any particular period, and that this Agreement is not an employment agreement for continued\nemployment.\n8.\nGoverning Law. This Agreement shall be construed, interpreted and applied in accordance with the laws of the State of\nMinnesota.\n9.\nWaiver. The waiver of a breach of any provision of this Agreement shall not operate as or be construed as a waiver of any\nsubsequent breach of this Agreement.\n10.\nSeverability. If any provision, section or subsection of this Agreement is adjudged by any court to be void or unenforceable\nin whole or in part, this adjudication shall not affect the validity of the remainder of the Agreement, including any other provision,\nsection or subsection. Each provision, section, and subsection of this Agreement is separable from every other provision, section and\nsubsection and constitutes a separate and distinct covenant. Both Employee and the Company agree that if any court rules that a\nrestriction contained in this Agreement is unenforceable as written, the parties will: (a) jointly request and consent to the reformation\nof the restriction by the court to the extent necessary to make the Agreement enforceable, and (b) not to seek to enforce the ruling in\nany state other than the state where the ruling was made.\n11.\nAssignment. This Agreement shall be binding upon and inure to the benefit of the Company, its successors and assigns and\nto the benefit of Employee, his/her heirs and legal representatives. This Agreement is not assignable by Employee. This Agreement\nmay be assigned by the Company. Employee transfers to any corporate parent, affiliate or subsidiary of the Company shall constitute\nan assignment.\n12.\nEntire Agreement. This Agreement and any award agreement or term sheet documenting the equity award(s) that\nconstitutes the Consideration constitute the entire Agreement and understanding between the Company and the Employee concerning\nthe subject matters hereof. No modification, amendment, termination or waiver of this Agreement shall be binding unless in writing\nand signed by a duly authorized representative of the Company. Employee acknowledges and represents that s/he has carefully read\nthis Agreement, that s/he has considered the terms and conditions contained herein, and that s/he voluntarily assents to all of these\nterms and conditions, and that s/he is accepting this Agreement by Employee’s own free will.\n7\nTHE ST. PAUL TRAVELERS COMPANIES , INC\nPARTICIPANT’S ACCEPTANCE\n(Click on the button below to accept the terms of your Agreement, including the terms of the Non-Solicitation\nand Non-Disclosure Agreement. You will not be able to undo this change.)\nAgree/Accept\n(Click on the button below to return to ECW and accept the terms of your Agreement at another time. You\nwill not be able to undo this change.)\nReturn to Equity Compensation Web\n8	EX-10.18 2 a06-2768_leX10d18.him MATERIAL CONTRACTS\nEXHIBIT B\nNON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\n \nTHIS NON-SOLICITATION AND NO N-DISCLOSURE AGREEMENT ("Agreement") is a part of the terms and conditions of the award issued by The St. Paul Travelers Companies, Inc., a Minnesota corporation with its principal place\nof business located in St. Paul, Minnesota and its affiliated entities (collectively, the "Company"), in favor of the participant named in the term sheet (the "Employee”) to which this Agreement is attached as an exhibit\nWITNESSETH:\nWHEREAS, the Employee is employed by the Company; and\nWHEREAS, the Company is engaged in the business of marketing and selling insurance and insurancerelated products\nthroughout the United States.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants and obligations hereinafter set forth, the parties\nagree as follows:\n1. Consideration. As consideration for the execution of this Agreement, the Employee acknowledges receipt of an award(s)\nissued pursuant to the Company's 2004 Stock Incentive Plan (the ”Consideration”), as evidenced by term sheet(s) setting forth the\nterms and conditions of such award(s) to which this Agreement is attached as an exhibit, which constitutes good, valuable and\nindependent consideration for all of Employee' 5 covenants and obligations in this Agreement and above and beyond any\ncompensation Employee is entitled to receive from the Company.\n2. Non-Disclosure of C onfidential Information.\n(a; Employee recognizes that the Company has developed information that is confidential, proprietary and/or nonpublic that is\nrelated to its business, operations, services, finances, clients, customers, policyholders, vendors and agents (”Confidential\nInformation”). Employee understands and agrees that he/she is prohibited from using, disclosing, divulging or misappropriating any\nConfidential Information for his/her own personal benefit or for the benefit of any person or entity, except that Employee\nmay disclose Confidential Information pursuant to a properly issued subpoena, court order, other legal process, or official inquiry of a\nfederal, state or local taxing authority, or other governmental agency with a legitimate legal right to know the Confidential\nInformation. If disclosure is compelled of Employee by subpoena, court order or other legal process, or as otherwise required by law,\nEmployee agrees to notify Company as soon as notice of such process is received and before disclosure and/or appearance takes\nplace. Employee will use reasonable and prudent care to safeguard and prevent the unauthorized use or disclosure of Confidential\nInformation. Confidential Information shall not include any information that: (a) is or becomes a part of the public domain through\nno act or omission of Employee or is otherwise available to the public other than by breach of this Agreement; (b) was in Employee' 5\nlawful possession prior to the disclosure and had not been obtained by Employee either directly or indirectly as a result of\nEmployee' 5 employment with or other service to the Company; (c) is disclosed to Employee by a third party who has authority from\nthe Company to make such disclosure and such disclosure to Employee is not confidential; or (d) is independently developed by\nEmployee outside of Employee' 5 employment with the Company and without the use of any Confidential Information. Employee\nfurther acknowledges that Employee, in the course of employment, has had and will have access to such Confidential Information.\n(h) Employee agrees that every document, computer disk, electronic file, computerized information, computer software\nprogram, notation, record, diary, memorandum, development, investigation, or the like, and any method or manner of doing business\nof the Company containing Confidential Information made or acquired by the Employee during employment by the Company is and\nshall be the sole and exclusive property of Company. The Employee will deliver the same (and every copy, disk, abstract, summary,\nor reproduction of the same made by or for the Employee or acquired by the Employee) whenever the Company may so require and\nin any event prior to or at the termination of employment. Nothing in Section 2 is intended or shall be interpreted to mean that the\nCompany may withhold information, including computerized information, relating to Employee' 5 personal contacts and personal\ninformation that may be stored or contained in Employee' 5 physical or electronic files. The Company further agrees not to\nunreasonably withhold information relating to Employee’s business-related contacts, to the extent such information falls outside the\ndefinition of Confidential Information set forth in Section 2(a) above.\n3. Non-Solicitation/Non-Interference.\n(a) The parties understand and agree that this Agreement is intended to protect the Company against the Employee raiding its\nemployees and/or its business during the twelve (12) month period following the Separation Date (whether voluntary or involuntary)\n(the ”Restricted Period”), while recognizing that after conclusion of his/her employment (the ”Separation Date"), Employee is still\npermitted to freely compete with the Company, except to the extent Confidential Information is used in such solicitation and subject\nto certain restrictions set forth below. Further, nothing in this A greement is intended to grant or limit any rights or claims as to any\nfuture employer of Employee. To this end, any court considering the enforcement of this Agreement for a breach of this Agreement,\nmust accept this statement of intent.\n(h) After Employee has left the employment of the Company and during the Restricted Period, Employee will not seek to\nrecruit or solicit, or assist in recruiting or soliciting, participate in or promote the solicitation of, interfere with, attempt to influence or\notherwise affect the employment of any person who was or is employed by the Company at any time during the last three months of\nEmployee’ 5 employment or thereafter. Further, Employee shall not, on behalf of himself/herself or any other person, hire, employ or\nengage any such person. The parties agree that Employee shall not directly engage in the aforesaid conduct through a third party for\nthe purpose of colluding to avoid the restrictions in this Agreement. However, nothing in this Agreement precludes Employee from\ndirecting a third party (including but not limited to employees of his/her subsequent employer or a search firm) to broadly solicit,\nrecruit, and hire individuals, some of whom may be employees of the Company, provided that Employee does not specifically direct\nsuch third party to specifically target the Company’ 5 employees generally or specific individual employees of the Company.\n(a After Employee has left the employment of the Company, accepts a position as an employee, consultant or contractor with\na direct competitor of the Company, and during the Restricted Period, Employee will not utilize Confidential Information to seek to\nsolicit or assist in soliciting, participate in or otherwise promote the solicitation of, interference with, attempt to influence or\notherwise affect any person or entity, who is a client, customer, policyholder, or agent of the Company, to discontinue business with\nthe Company, and/or move that business elsewhere. Employee also agrees not to be directly and personally involved in the\nnegotiation or solicitation of any individual book roll over(s) or other book of business transfer arrangements involving the transfer of\nbusiness away from Company, even if Confidential Information is not involved. However, nothing in this A greement precludes the\nEmployee from directing a third party (including but not limited to employees of his/her subsequent employer) to solicit, compete for,\nnegotiate and execute book roll over deals or other book of business transfer arrangements provided that (i) Confidential Information\nprovided by the Employee is not used, (ii) Employee is not personally and directly involved in such negotiations, and (iii) Employee\ndoes not direct such third party to target specific agents of Company. Furthermore, nothing in this Agreement precludes the\nEmployee from freely competing with the Company including but not limited to competing on an account by account or deal by deal\nbasis to the extent that he/she does not use Confidential Information.\n4. Forfeiture of C onsideration- 0 ther Remedies. Employee agrees that if Employee breaches this A greement during the\nRestricted Period, Employee will immediately forfeit any award that has not yet been paid, exercised or vested and that serves as\nConsideration for this Agreement. In addition, the Company will be entitled to recapture from Employee any and all compensatory\nvalue that Employee received within twelve months prior to or twelve months after the Separation Date from any award that has\nalready been paid, exercised or vested and that serves as Consideration for this Agreement. The value subject to recapture includes\nthe amount of any cash payment made to Employee upon exercise or settlement of the award, and/or the amount included as\ncompensation in the taxable income of Employee upon vesting or exercise of the award. Employee will promptly pay the full amount\nsubject to recapture to the Company upon demand in the form of cash or shares of Company Common Stock with a current fair\nmarket value equal to the amount subject to recapture. In addition to the remedies set forth in Sections 2, 3 and 4 of this Agreement,\nCompany may avail itself of any other remedies available under statute or common law.\n \n5. C onsent to | urisdiction. Jurisdiction and venue for enforcement of this A greement, and for resolution of any dispute\nunder this Agreement, shall be exclusively in the federal or state courts in the state and county where the Employee resides at the time\nthat the Company commences an action under this Agreement. Employee agrees to notify Company of any changes in his/her\nresidence after the Separation Date.\na. Modification. This Agreement may not be terminated or modified without the express written consent of both the\nEmployee and the Company.\n6\n7. Employment At Will. Employee specifically recognizes and agrees that nothing in this Agreement shall be deemed to\nestablish an employment relationship on a basis other than terminable at will, that the Company is not obligated to continue\nEmployee’ s employment for any particular period, and that this Agreement is not an employment agreement for continued\nemployment.\n8. G overning Law. This Agreement shall be construed, interpreted and applied in accordance with the laws of the State of\nMinnesota.\n9. Waiver. The waiver of a breach of any provision of this Agreement shall not operate as or be construed as a waiver of any\nsubsequent breach of this A greement.\n10. Severabilig If any provision, section or subsection of this Agreement is adjudged by any court to be void or unenforceable\nin whole or in part, this adjudication shall not affect the validity of the remainder of the Agreement, including any other provision,\nsection or subsection. Each provision, section, and subsection of this Agreement is separable from every other provision, section and\nsubsection and constitutes a separate and distinct covenant. Both Employee and the Company agree that if any court rules that a\nrestriction contained in this Agreement is unenforceable as written, the parties will: (a) jointly request and consent to the reformation\nof the restriction by the court to the extent necessary to make the Agreement enforceable, and (b) not to seek to enforce the ruling in\nany state other than the state where the ruling was made.\n11. Assignment. This Agreement shall be binding upon and inure to the benefit of the Company, its successors and assigns and\nto the benefit of Employee, his/her heirs and legal representatives. This A greement is not assignable by Employee. This Agreement\nmay be assigned by the Company. Employee transfers to any corporate parent, affiliate or subsidiary of the Company shall constitute\nan assignment.\n12. Entire Agreement. This Agreement and any award agreement or term sheet documenting the equity award(s) that\nconstitutes the Consideration constitute the entire Agreement and understanding between the Company and the Employee concerning\nthe subject matters hereof. No modification, amendment, termination or waiver of this A greement shall be binding unless in writing\nand signed by a duly authorized representative of the Company. Employee acknowledges and represents that s/he has carefully read\nthis Agreement, that s/he has considered the terms and conditions contained herein, and that s/he voluntarily assents to all of these\nterms and conditions, and that s/he is accepting this Agreement by Employee’ s own free will.\nTHE ST. PAUL TRAVELERS COMPANIES, INC\nPARTICIPANT’S ACCEPTANCE\n(Click on the button below to accept the terms of your Agreement, including the terms of the Non-Solicitation\nand Non-Disclosure Agreement. Y ou will not be able to undo this change.)\nA gree/A ocept\n(Click on the button below to return to ECW and accept the terms of your Agreement at another time. You\nwill not be able to undo this change.)\nReturn to Equity C ompensafion Web\n	EX-10.18 a06-2768 lex10d18.htm MATERIAL CONTRACTS\nEXHIBIT B\nNON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT ("Agreement") is a part of the terms and conditions of the award issued by The St. Paul Travelers Companies, Inc. a Minnesota corporation with its principal place\nof business located in St. Paul, Minnesota and its affiliated entities (collectively the "Company") in favor of the participant named in the term sheet (the "Employee") to which this Agreement is attached as an exhibit.\nWITNESSETH:\nWHEREAS, the Employee is employed by the Company; and\nWHEREAS, the Company is engaged in the business of marketing and selling insurance and insurance-related products\nthroughout the United States.\nTHEREFORE, in consideration of the promises and the mutual covenants and obligations hereinafter set forth, the parties\nagree as follows:\n1.\nConsideration. As consideration for the execution of this greement, the Employee acknowledges receipt of an award(s)\nissued\npursuant\nto\nthe\nCompany's\n2004\nStock\nIncentive\nPlan\n(the\n"Consideration"),\nas\nevidenced\nby\nterm\nsheet(s)\nsetting\nforth\nthe\nterms and conditions of such award(s) to which this greement is attached as an exhibit, which constitutes good, valuable and\nindependent consideration for all of Employee's covenants and obligations in this A greement and above and beyond any\ncompensation Employee is entitled to receive from the Company.\n2.\nNon-Disclosure of Confidential Information.\n(a)\nEmployee recognizes that the Company has developed information that is confidential, proprietary and/or nonpublic that is\nrelated to its business, operations, services, finances, clients, customers, policyholders, vendors and agents ("Confidential\nInformation"). Employee understands and agrees that he/she is prohibited from using, disclosing, divulging or misappropriating any\nConfidential Information for his/her own personal benefit or for the benefit of any person or entity, except that Employee\nmay disclose Confidential Information pursuant to a properly issued subpoena, court order, other legal process, or official inquiry of a\nfederal, state or local taxing authority, or other governmental agency with a legitimate legal right to know the Confidential\nInformation. If disclosure is compelled of Employee by subpoena, court order or other legal process, or as otherwise required by law,\nEmployee agrees to notify Company as soon as notice of such process is received and before disclosure and/or appearance takes\nplace. Employee will use reasonable and prudent care to safeguard and prevent the unauthorized use or disclosure of Confidential\nInformation. Confidential Information shall not include any information that: (a) is or becomes a part of the public domain through\nno act or omission of Employee or is otherwise available to the public other than by breach of this A greement; (b) was in Employee's\nlawful possession prior to the disclosure and had not been obtained by Employee either directly or indirectly as a result of\nEmployee's employment with or other service to the Company; (c) is disclosed to Employee by a third party who has authority from\nthe Company to make such disclosure and such disclosure to Employee is not confidential; or (d) is independently developed by\nEmployee outside of Employee's employment with the Company and without the use of any Confidential Information. Employee\nfurther acknowledges that Employee, in the course of employment has had and will have access to such Confidential Information.\n(b)\nEmployee agrees that every document, computer disk, electronic file, computerized information, computer software\nprogram, notation, record, diary, memorandum, development, investigation, or the like, and any method or manner of doing business\nof\nthe Company containing Confidential Information made or acquired by the Employee during employment by the Company is and\nshall be the sole and exclusive property of Company. The Employee will deliver the same (and every copy, disk, abstract, summary,\nor reproduction of the same made by or for the Employee or acquired by the Employee) whenever the Company may so require and\nin\nany event prior to or at the termination of employment Nothing in Section 2 is intended or shall be interpreted to mean that the\nCompany may withhold information, including computerized information, relating to Employee's personal contacts and personal\ninformation that may be stored or contained in Employee's physical or electronic files. The Company further agrees not to\nunreasonably withhold information relating to Employee's business-related contacts, to the extent such information falls outside the\ndefinition of Confidential Information set forth in Section 2(a) above.\n3.\nNon-Solicitation/Non-Interference.\n(a)\nThe parties understand and agree that this A greement is intended to protect the Company against the Employee raiding its\nemployees and/or its business during the twelve (12) month period following the Separation Date (whether voluntary or involuntary)\n(the "Restricted Period"), while recognizing that after conclusion of his/her employment (the "Separation Date"), Employee is still\npermitted to freely compete with the Company, except to the extent Confidential Information is used in such solicitation and subject\nto certain restrictions set forth below. Further, nothing in this A greement is intended to grant or limit any rights or claims as to any\nfuture employer of Employee. To this end, any court considering the enforcement of this A greement for a breach of this A greement,\nmust accept this statement of intent.\n(b)\nAfter Employee has left the employment of the Company and during the Restricted Period, Employee will not seek to\nrecruit or solicit, or assist in recruiting or soliciting, participate in or promote the solicitation of, interfere with, attempt to influence or\notherwise affect the employment of any person who was or is employed by the Company at any time during the last three months of\nEmployee's employment or thereafter. Further, Employee shall not, on behalf of himself/herself or any other person, hire, employ or\nengage any such person The parties agree that Employee shall not directly engage in the aforesaid conduct through a third party for\nthe purpose of colluding to avoid the restrictions in this greement. However, nothing in this A greement precludes Employee from\ndirecting a third party (including but not limited to employees of his/her subsequent employer or a search firm) to broadly solicit,\nrecruit, and hire individuals, some of whom may be employees of the Company, provided that Employee does not specifically direct\nsuch third party to specifically target the Company's employees generally or specific individual employees of the Company.\n(c)\nfter Employee has left the employment of the Company, accepts a position as an employee, consultant or contractor with\na direct competitor of the Company, and during the Restricted Period, Employee will not utilize Confidential Information to seek to\nsolicit or assist in soliciting, participate in or otherwise promote the solicitation of, interference with, attempt to influence or\notherwise affect any person or entity, who is a client, customer, policyholder, or agent of the Company, to discontinue business with\nthe Company, and/or move that business elsewhere. Employee also agrees not to be directly and personally involved in the\nnegotiation or solicitation of any individual book roll over(s) or other book of business transfer arrangements involving the transfer of\nbusiness away from Company, even if Confidential Information is not involved. However, nothing in this A greement precludes the\nEmployee from directing a third party (including but not limited to employees of his/her subsequent employer) to solicit, compete for,\nnegotiate and execute book roll over deals or other book of business transfer arrangements provided that (i) Confidential Information\nprovided by the Employee is not used, (ii) Employee is not personally and directly involved in such negotiations, and (iii) Employee\ndoes not direct such third party to target specific agents of Company. Furthermore, nothing in this greement precludes the\nEmployee from freely competing with the Company including but not limited to competing on an account by account or deal by deal\nbasis to the extent that he/she does not use Confidential Information.\n4.\nForfeiture of Consideration; ther Remedies. Employee agrees that if Employee breaches this A greement during the\nRestricted Period, Employee will immediately forfeit any award that has not yet been paid, exercised or vested and that serves as\nConsideration for this Agreement. In addition, the Company will be entitled to recapture from Employee any and all compensatory\nvalue that Employee received within twelve months prior to or twelve months after the Separation Date from any award that has\nalready been paid, exercised or vested and that serves as Consideration for this greement. The value subject to recapture includes\nthe amount of any cash payment made to Employee upon exercise or settlement of the award, and/or the amount included as\ncompensation in the taxable income of Employee upon vesting or exercise of the award. Employee will promptly pay the full amount\nsubject to recapture to the Company upon demand in the form of cash or shares of Company Common Stock with a current fair\nmarket value equal to the amount subject to recapture. In addition to the remedies set forth in Sections 2, 3 and 4 of this A greement,\nCompany may avail itself of any other remedies available under statute or common law.\n5.\nConsent to urisdiction. Jurisdiction and venue for enforcement of this greement, and for resolution of any dispute\nunder this Agreement, shall be exclusively in the federal or state courts in the state and county where the Employee resides at the time\nthat the Company commences an action under this A greement. Employee agrees to notify Company of any changes in his/her\nresidence after the Separation Date.\n6.\nModification. This A greement may not be terminated or modified without the express written consent of both the\nEmployee and the Company.\nEmployment At Will. Employee specifically recognizes and agrees that nothing in this A greement shall be deemed to\nestablish an employment relationship on a basis other than terminable at will, that the Company is not obligated to continue\nEmployee's employment for any particular period, and that this A greement is not an employment agreement for continued\nemployment.\n8.\noverning Law. This A greement shall be construed, interpreted and applied in accordance with the laws of the State of\nMinnesota.\n9.\nWaiver. The waiver of a breach of any provision of this A greement shall not operate as or be construed as a waiver of any\nsubsequent breach of this A greement.\n10.\nSeverability If any provision, section or subsection of this A greement is adjudged by any court to be void or unenforceable\nin whole or in part, this adjudication shall not affect the validity of the remainder of the A greement, including any other provision,\nsection or subsection. Each provision, section, and subsection of this A greement is separable from every other provision, section and\nsubsection and constitutes a separate and distinct covenant. Both Employee and the Company agree that if any court rules that a\nrestriction contained in this A greement is unenforceable as written, the parties will: (a) jointly request and consent to the reformation\nof the restriction by the court to the extent necessary to make the A greement enforceable, and (b) not to seek to enforce the ruling in\nany state other than the state where the ruling was made.\n11.\nssignment. This greement shall be binding upon and inure to the benefit of the Company, its successors and assigns and\nto\nthe benefit of Employee, his/her heirs and legal representatives. This A greement is not assignable by Employee. This A greement\nmay be assigned by the Company. Employee transfers to any corporate parent, affiliate or subsidiary of the Company shall constitute\nan assignment.\n12.\nEntire Agreement This A greement and any award agreement or term sheet documenting the equity award(s) that\nconstitutes the Consideration constitute the entire A greement and understanding between the Company and the Employee concerning\nthe subject matters hereof. No modification, amendment, termination or waiver of this A greement shall be binding unless in writing\nand signed by a duly authorized representative of the Company. Employee acknowledges and represents that s/he has carefully read\nthis A greement, that s/he has considered the terms and conditions contained herein, and that s/he voluntarily assents to all of these\nterms and conditions, and that s/he is accepting this A greement by Employee's own free will.\nTHE ST. PAUL TRAVELERS COMPANIES, INC\nPARTICIPANT'S ACCEPTANCE\n(Click on the button below to accept the terms of your Agreement, including the terms of the Non-Solicitation\nand Non-Disclosure Agreement. You will not be able to undo this change.)\nAgree/A ccept\n(Click on the button below to return to ECW and accept the terms of your Agreement at another time You\nwill not be able to undo this change.)\nReturn to Equity Compensation Web\n8	EX-10 .18 2 a06-2768 _1ex10d18.htm MATERIAL CONTRACTS\nEXHIBIT B\nNON-SOLICITATION AND NON -DISCLOSURE AGREEMENT\nTHIS NON-SOLICITATION AND NON -DISCLOSURE AGREEMENT (“Agreement”) is a part of the terms and conditions of the award issued by The St. Paul Travelers Companies, Inc., a Minnesota corporation with its principal place\nof business located in St. Paul, Minnesota and its affiliated entities (collectively, the “Company”), in favor of the participant named in the term sheet (the “Employee”) to which this Agreement is attached as an exhibit.\nWITNESSETH:\nWHEREAS, the Employee is employed by the Company; and\nWHEREAS, the Company is engaged in the business of marketing and selling insurance and insurance-related products\nthroughout the United States.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants and obligations hereinafter set forth, the parties\nagree as follows:\n1.\nConsideration. As consideration for the execution of this Agreement, the Employee acknowledges receipt of an award(s)\nissued pursuant to the Company’s 2004 Stock Incentive Plan (the “Consideration”), as evidenced by term sheet(s) setting forth the\nterms and conditions of such award(s) to which this Agreement is attached as an exhibit, which constitutes good, valuable and\nindependent consideration for all of Employee’s covenants and obligations in this Agreement and above and beyond any\ncompensation Employee is entitled to receive from the Company.\n2.\nNon-Disclosure of Confidential Information.\n(a)\nEmployee recognizes that the Company has developed information that is confidential, proprietary and/or nonpublic that is\nrelated to its business, operations, services, finances, clients, customers, policyholders, vendors and agents (“Confidential\nInformation”). Employee understands and agrees that he/she is prohibited from using, disclosing, divulging or misappropriating any\nConfidential Information for his/her own personal benefit or for the benefit of any person or entity, except that Employee\nmay disclose Confidential Information pursuant to a properly issued subpoena, court order, other legal process, or official inquiry of a\nfederal, state or local taxing authority, or other governmental agency with a legitimate legal right to know the Confidential\nInformation. If disclosure is compelled of Employee by subpoena, court order or other legal process, or as otherwise required by law,\nEmployee agrees to notify Company as soon as notice of such process is received and before disclosure and/or appearance takes\nplace. Employee will use reasonable and prudent care to safeguard and prevent the unauthorized use or disclosure of Confidential\nInformation. Confidential Information shall not include any information that: (a) is or becomes a part of the public domain through\nno act or omission of Employee or is otherwise available to the public other than by breach of this Agreement; (b) was in Employee’s\nlawful possession prior to the disclosure and had not been obtained by Employee either directly or indirectly as a result of\nEmployee’s employment with or other service to the Company; (c) is disclosed to Employee by a third party who has authority from\nthe Company to make such disclosure and such disclosure to Employee is not confidential; or (d) is independently developed by\nEmployee outside of Employee’s employment with the Company and without the use of any Confidential Information. Employee\nfurther acknowledges that Employee, in the course of employment, has had and will have access to such Confidential Information.\n(b)\nEmployee agrees that every document, computer disk, electronic file, computerized information, computer software\nprogram, notation, record, diary, memorandum, development, investigation, or the like, and any method or manner of doing business\nof the Company containing Confidential Information made or acquired by the Employee during employment by the Company is and\nshall be the sole and exclusive property of Company. The Employee will deliver the same (and every copy, disk, abstract, summary,\nor reproduction of the same made by or for the Employee or acquired by the Employee) whenever the Company may so require and\nin any event prior to or at the termination of employment. Nothing in Section 2 is intended or shall be interpreted to mean that the\nCompany may withhold information, including computerized information, relating to Employee’s personal contacts and personal\ninformation that may be stored or contained in Employee’s physical or electronic files. The Company further agrees not to\nunreasonably withhold information relating to Employee’s business-related contacts, to the extent such information falls outside the\ndefinition of Confidential Information set forth in Section 2(a) above.\n5\n3.\nNon-Solicitation/Non-Interference.\n(a)\nThe parties understand and agree that this Agreement is intended to protect the Company against the Employee raiding its\nemployees and/or its business during the twelve (12) month period following the Separation Date (whether voluntary or involuntary)\n(the “Restricted Period”), while recognizing that after conclusion of his/her employment (the “Separation Date”), Employee is still\npermitted to freely compete with the Company, except to the extent Confidential Information is used in such solicitation and subject\nto certain restrictions set forth below. Further, nothing in this Agreement is intended to grant or limit any rights or claims as to any\nfuture employer of Employee. To this end, any court considering the enforcement of this Agreement for a breach of this Agreement,\nmust accept this statement of intent.\n(b)\nAfter Employee has left the employment of the Company and during the Restricted Period, Employee will not seek to\nrecruit or solicit, or assist in recruiting or soliciting, participate in or promote the solicitation of, interfere with, attempt to influence or\notherwise affect the employment of any person who was or is employed by the Company at any time during the last three months of\nEmployee’s employment or thereafter. Further, Employee shall not, on behalf of himself/herself or any other person, hire, employ or\nengage any such person. The parties agree that Employee shall not directly engage in the aforesaid conduct through a third party for\nthe purpose of colluding to avoid the restrictions in this Agreement. However, nothing in this Agreement precludes Employee from\ndirecting a third party (including but not limited to employees of his/her subsequent employer or a search firm) to broadly solicit,\nrecruit, and hire individuals, some of whom may be employees of the Company, provided that Employee does not specifically direct\nsuch third party to specifically target the Company’s employees generally or specific individual employees of the Company.\n(c)\nAfter Employee has left the employment of the Company, accepts a position as an employee, consultant or contractor with\na direct competitor of the Company, and during the Restricted Period, Employee will not utilize Confidential Information to seek to\nsolicit or assist in soliciting, participate in or otherwise promote the solicitation of, interference with, attempt to influence or\notherwise affect any person or entity, who is a client, customer, policyholder, or agent of the Company, to discontinue business with\nthe Company, and/or move that business elsewhere. Employee also agrees not to be directly and personally involved in the\nnegotiation or solicitation of any individual book roll over(s) or other book of business transfer arrangements involving the transfer of\nbusiness away from Company, even if Confidential Information is not involved. However, nothing in this Agreement precludes the\nEmployee from directing a third party (including but not limited to employees of his/her subsequent employer) to solicit, compete for,\nnegotiate and execute book roll over deals or other book of business transfer arrangements provided that (i) Confidential Information\nprovided by the Employee is not used, (ii) Employee is not personally and directly involved in such negotiations, and (iii) Employee\ndoes not direct such third party to target specific agents of Company. Furthermore, nothing in this Agreement precludes the\nEmployee from freely competing with the Company including but not limited to competing on an account by account or deal by deal\nbasis to the extent that he/she does not use Confidential Information.\n4.\nForfeiture of Consideration; Other Remedies. Employee agrees that if Employee breaches this Agreement during the\nRestricted Period, Employee will immediately forfeit any award that has not yet been paid, exercised or vested and that serves as\nConsideration for this Agreement. In addition, the Company will be entitled to recapture from Employee any and all compensatory\nvalue that Employee received within twelve months prior to or twelve months after the Separation Date from any award that has\nalready been paid, exercised or vested and that serves as Consideration for this Agreement. The value subject to recapture includes\nthe amount of any cash payment made to Employee upon exercise or settlement of the award, and/or the amount included as\ncompensation in the taxable income of Employee upon vesting or exercise of the award. Employee will promptly pay the full amount\nsubject to recapture to the Company upon demand in the form of cash or shares of Company Common Stock with a current fair\nmarket value equal to the amount subject to recapture. In addition to the remedies set forth in Sections 2, 3 and 4 of this Agreement,\nCompany may avail itself of any other remedies available under statute or common law.\n5.\nConsent to Jurisdiction. Jurisdiction and venue for enforcement of this Agreement, and for resolution of any dispute\nunder this Agreement, shall be exclusively in the federal or state courts in the state and county where the Employee resides at the time\nthat the Company commences an action under this Agreement. Employee agrees to notify Company of any changes in his/her\nresidence after the Separation Date.\n6.\nModification. This Agreement may not be terminated or modified without the express written consent of both the\nEmployee and the Company.\n6\n7.\nEmployment At Will. Employee specifically recognizes and agrees that nothing in this Agreement shall be deemed to\nestablish an employment relationship on a basis other than terminable at will, that the Company is not obligated to continue\nEmployee’s employment for any particular period, and that this Agreement is not an employment agreement for continued\nemployment.\n8.\nGoverning Law. This Agreement shall be construed, interpreted and applied in accordance with the laws of the State of\nMinnesota.\n9.\nWaiver. The waiver of a breach of any provision of this Agreement shall not operate as or be construed as a waiver of any\nsubsequent breach of this Agreement.\n10.\nSeverability. If any provision, section or subsection of this Agreement is adjudged by any court to be void or unenforceable\nin whole or in part, this adjudication shall not affect the validity of the remainder of the Agreement, including any other provision,\nsection or subsection. Each provision, section, and subsection of this Agreement is separable from every other provision, section and\nsubsection and constitutes a separate and distinct covenant. Both Employee and the Company agree that if any court rules that a\nrestriction contained in this Agreement is unenforceable as written, the parties will: (a) jointly request and consent to the reformation\nof the restriction by the court to the extent necessary to make the Agreement enforceable, and (b) not to seek to enforce the ruling in\nany state other than the state where the ruling was made.\n11.\nAssignment. This Agreement shall be binding upon and inure to the benefit of the Company, its successors and assigns and\nto the benefit of Employee, his/her heirs and legal representatives. This Agreement is not assignable by Employee. This Agreement\nmay be assigned by the Company. Employee transfers to any corporate parent, affiliate or subsidiary of the Company shall constitute\nan assignment.\n12.\nEntire Agreement. This Agreement and any award agreement or term sheet documenting the equity award(s) that\nconstitutes the Consideration constitute the entire Agreement and understanding between the Company and the Employee concerning\nthe subject matters hereof. No modification, amendment, termination or waiver of this Agreement shall be binding unless in writing\nand signed by a duly authorized representative of the Company. Employee acknowledges and represents that s/he has carefully read\nthis Agreement, that s/he has considered the terms and conditions contained herein, and that s/he voluntarily assents to all of these\nterms and conditions, and that s/he is accepting this Agreement by Employee’s own free will.\n7\nTHE ST. PAUL TRAVELERS COMPANIES , INC\nPARTICIPANT’S ACCEPTANCE\n(Click on the button below to accept the terms of your Agreement, including the terms of the Non-Solicitation\nand Non-Disclosure Agreement. You will not be able to undo this change.)\nAgree/Accept\n(Click on the button below to return to ECW and accept the terms of your Agreement at another time. You\nwill not be able to undo this change.)\nReturn to Equity Compensation Web\n8
+5fa6579440892c888a68fb053f30b58e.pdf	effective_date jurisdiction party term	Non-Disclosure Agreement\nThis Non-Disclosure Agreement (this “Agreement”) is made this day of\n,20\n, by and among KBSIII REIT Acquisition VII, LLC,\na Delaware limited liability company (“KBS REIT VII”), KBS Limited Partnership III, a Delaware limited liability partnership (“KBS LP III”),\nKBS Real Estate Investment Trust III, Inc., a Maryland corporation (“KBS III Inc.”), KBS Capital Advisors LLC, a Delaware limited liability\ncompany (“KBS CA”), and\n,a\n(the “Recipient”) (KBS REIT VII, KBS LP III, KBS III Inc. and KBS CA are\ncollectively referred to as “KBS”; Recipient and KBS are sometimes referred to in this Agreement individually as a “Party” or collectively as the\n“Parties”).\nKBS and Recipient wish to have discussions during which Recipient may be exposed to important business and/or technical information\nwhich is the property of KBS. Such disclosures may be in the form of written materials, by oral disclosure, or through learned observation, and may\ninclude certain plans, designs, data, operations, financial positions and projections, business and technical information, trade secrets, techniques,\nmethods, supplier and vendor contacts and methods, development plans, acquisition plans, financing options and plans, profit margins, services,\nproprietary information, and other confidential information. Much of this information is the result of substantial expenditures of time, money,\ntechnical expertise, and resources. And KBS considers this information confidential and/or a trade secret. The unauthorized use or disclosure of this\ninformation could cause significant harm to KBS’s business. For this reason and in consideration of the mutual covenants contained in this\nAgreement and the disclosure of confidential information to Recipient, the Parties agree as follows:\n3\n1. Definitions. For purposes of this Agreement, the following\ndefinitions apply:\n1.1.\n“Confidential Information” means KBS’s non-public,\nconfidential and proprietary information and specifically includes, but\nis not necessarily limited to, the following: (A) plans, data, operations,\nfinancial positions, historical performance and projections, business\nand technical information, techniques, methods, supplier and vendor\ncontacts, development plans, acquisition plans, financing options and\nplans, profit margins, services, methodologies, techniques, designs\n(architectural or otherwise), specifications, tenant lists, tenant\ninformation, leasing plans or strategies, market information, marketing\nplans, personnel information, other financial information, business\nstrategies, rent and pricing policies, contractual relations with\ncustomers and suppliers, business acquisition plans, business\nopportunities, new personnel acquisition plans, and information, books,\nrecords, patent applications, proprietary information, and other\nconfidential information and know-how relating to the business of\nKBS; (B) information received by KBS from third parties under\nconfidential conditions, which information is identified by KBS as\nbeing subject to such conditions; and (C) KBS’s Trade Secrets.\nConfidential Information does not include any information that: (W) is\nor subsequently becomes publicly available without the Recipient’s\nbreach, directly or indirectly, of any obligation owed to KBS;\n(X) became known to the Recipient prior to KBS’s disclosure of such\ninformation to the Recipient as can be proven by Recipient’s written\nrecords; (Y) became known to the Recipient from a source other than\nKBS other than by the breach of an obligation of confidentiality owed\nto KBS; or (Z) is independently developed, without any use of KBS’s\nConfidential Information, by the Recipient as evidenced by its written\nrecords.\n1.2.\n“Trade Secrets” means information that: derives economic\nvalue, actual or potential, from not being generally known to, or readily\nascertainable by proper means by, other persons who can obtain\neconomic value\nfrom its disclosure or use, and that is the subject of efforts that are\nreasonable under the circumstances to maintain its secrecy.\n2. Obligations of Recipient. Recipient covenants and agrees that:\n2.1. It will hold all Confidential Information in trust and in the\nstrictest confidence and protect it in accordance with a standard of care\nthat shall be no less than the care it uses to protect its own information\nof like importance but in no event with less than reasonable care;\n2.2. It will not use, copy, or disclose, or permit any unauthorized\nperson access to, any Confidential Information without KBS’s\npermission, to be granted or withheld in KBS’s sole discretion, and\nprovided that any existing confidentiality notices are included in such\nreproductions or, if no such notices are included, “Confidential” or\nsome similar notice is stamped on the Confidential Information;\n2.3. It may only disclose Confidential Information to its directors,\nofficers, employees, consultants, insurers, reinsurers, auditors,\nregulators, attorneys and agents (“Representatives”) provided such\nRepresentatives (i) have a need to know and (ii) are informed, directed\nand obligated by Recipient to treat such Confidential Information in\naccordance with the obligations of this Agreement. Recipient agrees to\nbe liable for any breach of an obligation hereunder by any of its\nRepresentatives;\n2.4. All Confidential Information, including all tangible\nembodiments, copies, reproductions and summaries thereof, and any\nother information and materials provided by KBS to the Recipient shall\nremain the sole and exclusive property of KBS.\n2.5. It shall immediately report to KBS any use or disclosure by the\nRecipient’s employees or any other person of which the Recipient has\nknowledge of any portion of the Confidential Information without\nauthorization from KBS, and will reasonably cooperate with KBS to\nhelp KBS\n4\nregain possession of the Confidential Information and prevent its\nfurther unauthorized use.\n2.6. Upon the written request of KBS, Recipient will effect the\ndestruction of all memoranda, notes, records, tapes, documentation,\ndisks, manuals, files, originals, copies, reproductions and summaries\n(in any form or format, including without limitation, copies resident in\nlong or short-term computer storage devices) of, to the extent they\nconcern or contain Confidential Information that are in Recipient’s\npossession, whether made or compiled by Recipient or furnished to\nRecipient by KBS; provided that Recipient, as a regulated entity, may\nretain the Confidential Information for the purposes of and for so long\nas required by any law, court or regulatory agency or authority or its\ninternal compliance procedures. The confidentiality obligations of this\nAgreement shall continue to apply to such Confidential Information\nretained by Recipient or its Representatives for so long as Recipient or\nits Representatives retains such Confidential Information.\n3. Obligation of Recipient. The Recipient’s obligations to maintain\nthe confidentiality of Confidential Information pursuant to Section 2\nspecifically include, but are not limited to, not disclosing Confidential\nInformation to any persons or entities engaged in a field of business\nsimilar to KBS or in the non-traded REIT industry.\n4. Exception. The obligations of confidentiality imposed by this\nAgreement do not apply to any Confidential Information that is\nrequired to be disclosed pursuant to operation of law or legal process,\ngovernmental regulation or court order. If Recipient receives a court\norder or other governmental or administrative decree of appropriate\nand sufficient jurisdiction requiring disclosure of KBS’s Confidential\nInformation, Recipient shall give KBS prompt notice prior to such\ndisclosure, if legally permitted, in order to permit KBS, at its expense,\nto seek a protective order in the case of a court order or other\ngovernmental or administrative decree. Recipient agrees to reasonably\ncooperate with KBS, at KBS’s expense and subject to applicable law,\nto limit such disclosure. Recipient shall also reasonably cooperate with\nKBS in seeking a protective order subject to the payment by KBS of all\nout-of-pocket expenses incurred by the party providing such\ncooperation at the request of KBS. Recipient shall release only so\nmuch of KBS’s Confidential Information as Recipient’s counsel\nadvises is required by such order.\n5. Duration. The restrictions on use and disclosure of Confidential\nInformation shall survive for a period of two (2) years. However, with\nrespect to Confidential Information that constitutes (i) a Trade Secret,\nor (ii) is retained by Recipient pursuant to the second clause of\nSection 2.6(ii) above, the confidentiality obligations set forth in this\nAgreement shall continue in effect for so long as such Confidential\nInformation remains a Trade Secret, or is retained by Recipient, as\napplicable.\n6. No Warranties. KBS makes no warranties, express or implied,\nunder this Agreement or by any Confidential Information\ndisclosed to Recipient under\nthis Agreement. All information disclosed hereunder is provided\n“as is.”\n7. No Licenses or Other Obligations. By disclosing information to\nthe Recipient, KBS does not grant any express or implied rights or\nlicenses to the Recipient with respect to any patents, copyrights,\ntrademarks, Trade Secrets or other proprietary rights of KBS. Nothing\nin this Agreement shall obligate KBS to disclose any information to\nRecipient or to engage in any other business activity with Recipient.\n8.\nRepresentations and Covenants.\nRecipient represents,\ncovenants, acknowledges, and agrees that:\n8.1. It is aware and its Representatives have been advised that\nsecurities laws prohibit any person who has material non-public\ninformation about a public company from purchasing or selling\nsecurities of such company.\n8.2. This Agreement (and any Confidential Information) is\ndelivered upon the express condition that Recipient will not publicize\nin any manner whatsoever by way of interviews, responses to questions\nor inquiries, press releases or otherwise, any aspect or proposed aspect\nof the subject matter of the Confidential Information without prior\nnotice to and approval of KBS, except as may otherwise be required by\nlaw.\n9. Threatened Breach; Breach; Remedies. In the event of any\nbreach of this Agreement by Recipient, including, without limitation,\nthe actual or threatened disclosure of Confidential Information without\nthe prior express written consent of KBS, KBS will suffer an\nirreparable injury, such that no remedy at law will afford it adequate\nprotection against, or appropriate compensation for, such injury.\nAccordingly, Recipient hereby agrees that KBS shall be entitled,\nwithout waiving any other rights or remedies, to seek specific\nperformance of the Recipient’s obligations as well as such other\ninjunctive relief as may be granted by a court of competent jurisdiction.\n10. Miscellaneous.\n10.1. Severability. If any provision of this Agreement shall not\nbe valid for any reason, such provision shall be entirely severable from,\nand shall have no effect upon, the remainder of this Agreement. Any\nsuch invalid provision shall be subject to partial enforcement to the\nextent necessary to protect the interest of KBS.\n10.2. Governing Law; Forum. This Agreement shall be\nconstrued and controlled by the laws of the State of California without\nreference to the provisions governing conflict of laws, and both parties\nfurther consent to the exclusive jurisdiction by the state and federal\ncourts sitting in the State of California of any dispute arising out of or\nrelated to this Agreement.\n10.3.\nEnforcement by Successors or Assigns;\nSurvivability. The covenants and agreements contained herein shall\ninure to the benefit of, and may be enforced by, any legal successors or\nassigns of each Party and shall survive any termination of the\nrelationship between the\n5\nParties, whether such termination is at the instance of either Party, and\nregardless of the reasons therefore.\n10.4. Amendment; Waiver. This Agreement, or any provision\nhereof, shall not be waived, changed or terminated except by a writing\nsigned by an authorized officer of both Parties.\n10.5. Counterparts. This Agreement may be executed in one\nor more counterparts, each of which will constitute an original, but all\nof which together constitute a single document. Any signature duly\naffixed to this Agreement and delivered by facsimile transmission shall\nbe deemed to have the same legal effect as the actual signature of the\nperson signing this Agreement, and any Party receiving delivery of a\nfacsimile copy of the signed Agreement may rely on such as having\nactually been signed.\n10.6. Merger. This Agreement constitutes the entire agreement\nbetween the parties with respect to the subject matter of this\nAgreement, except to the extent of existing non-disclosure agreements\nbetween the parties to which this Agreement supplements (but\nsupersedes to the extent of any inconsistency therein).\n10.7. No Implied Waiver. None of the provisions of this\nAgreement shall be deemed to have been waived by any act or\nacquiescence on the part of KBS, its agents, or employees, but only by\nan instrument in writing signed by an authorized officer of KBS. No\nwaiver of any provision of this Agreement shall constitute a waiver of\nany other provision(s) or of the same provision on another occasion.\n10.8. No Assignment. The Recipient may not assign its rights\nor obligations under this Agreement without the express written\nconsent of KBS.\n10.9. Headings and Construction. The headings of Sections in\nthis Agreement are provided for convenience only and will not affect\nits construction or interpretation. All references to “Section” or\n“Sections” refer to the corresponding Section or Sections of this\nAgreement unless otherwise specified. All words used in this\nAgreement will be construed to be of such gender or number as the\ncircumstances require. Unless otherwise expressly provided, the word\n“including” does not limit the preceding words or terms.\nThe parties hereto have executed this Agreement as of the date noted above.\nRecipient Name:\nKBS Capital Advisors LLC\nBy:\nBy:\nName (print):\nName (print):\nTitle:\nTitle:\nS7-1	Non-Disclosure Agreement\nThis Non-Disclosure Agreement (this “Agreement”) is made this __day of ____, 20__, by and among KBSIII REIT Acquisition VII, LLC,\na Delaware limited liability company (“KBS REIT VII”), KBS Limited Partnership III, a Delaware limited liability partnership (“KBS LP III”),\nKBS Real Estate Investment Trust III, Inc., a Maryland corporation (“KBS III Inc.”), KBS Capital Advisors LLC, a Delaware limited liability\ncompany (“KBS CA”), and a (the “Recipient”) (KBS REIT VII, KBS LP III, KBS III Inc. and KBS CA are\ncollectively referred to as “KBS”; Recipient and KBS are sometimes referred to in this Agreement individually as a “Party” or collectively as the\n“Parties”).\n \nKBS and Recipient wish to have discussions during which Recipient may be exposed to important business and/or technical information\nwhich is the property of KBS. Such disclosures may be in the form of written materials, by oral disclosure, or through learned observation, and may\ninclude certain plans, designs, data, operations, financial positions and projections, business and technical information, trade secrets, techniques,\nmethods, supplier and vendor contacts and methods, development plans, acquisition plans, financing options and plans, profit margins, services,\nproprietary information, and other confidential information. Much of this information is the result of substantial expenditures of time, money,\ntechnical expertise, and resources. And KBS considers this information confidential and/or a trade secret. The unauthorized use or disclosure of this\ninformation could cause significant harm to KBS’s business. For this reason and in consideration of the mutual covenants contained in this\nAgreement and the disclosure of confidential information to Recipient, the Parties agree as follows: 1. Definitions.\ndefinitions apply:\nFor purposes of this Agreement, the following\n1.1. “Confidential Information” means KBS’s non-public,\nconfidential and proprietary information and specifically includes, but\nis not necessarily limited to, the following: (A) plans, data, operations,\nfinancial positions, historical performance and projections, business\nand technical information, techniques, methods, supplier and vendor\ncontacts, development plans, acquisition plans, financing options and\nplans, profit margins, services, methodologies, techniques, designs\n(architectural or otherwise), specifications, tenant lists, tenant\ninformation, leasing plans or strategies, market information, marketing\nplans, personnel information, other financial information, business\nstrategies, rent and pricing policies, contractual relations with\ncustomers and suppliers, business acquisition plans, business\nopportunities, new personnel acquisition plans, and information, books,\nrecords, patent applications, proprietary information, and other\nconfidential information and know-how relating to the business of\nKBS; (B) information received by KBS from third parties under\nconfidential conditions, which information is identified by KBS as\nbeing subject to such conditions; and (C) KBS’s Trade Secrets.\nConfidential Information does not include any information that: (W) is\nor subsequently becomes publicly available without the Recipient’s\nbreach, directly or indirectly, of any obligation owed to KBS;\n(X) became known to the Recipient prior to KBS’s disclosure of such\ninformation to the Recipient as can be proven by Recipient’s written\nrecords; (Y) became known to the Recipient from a source other than\nKBS other than by the breach of an obligation of confidentiality owed\nto KBS; or (Z) is independently developed, without any use of KBS’s\nConfidential Information, by the Recipient as evidenced by its written\nrecords.\n1.2. “Trade Secrets” means information that: derives economic\nvalue, actual or potential, from not being generally known to, or readily\nascertainable by proper means by, other persons who can obtain\neconomic value\nfrom its disclosure or use, and that is the subject of efforts that are\nreasonable under the circumstances to maintain its secrecy.\n2. Obligations of Recipient. Recipient covenants and agrees that:\n2.1. It will hold all Confidential Information in trust and in the\nstrictest confidence and protect it in accordance with a standard of care\nthat shall be no less than the care it uses to protect its own information\nof like importance but in no event with less than reasonable care;\n2.2. It will not use, copy, or disclose, or permit any unauthorized\nperson access to, any Confidential Information without KBS’s\npermission, to be granted or withheld in KBS’s sole discretion, and\nprovided that any existing confidentiality notices are included in such\nreproductions or, if no such notices are included, “Confidential” or\nsome similar notice is stamped on the Confidential Information;\n2.3. It may only disclose Confidential Information to its directors,\nofficers, employees, consultants, insurers, reinsurers, auditors,\nregulators, attorneys and agents (“Representatives”) provided such\nRepresentatives (i) have a need to know and (ii) are informed, directed\nand obligated by Recipient to treat such Confidential Information in\naccordance with the obligations of this Agreement. Recipient agrees to\nbe liable for any breach of an obligation hereunder by any of its\nRepresentatives;\n2.4. All Confidential Information, including all tangible\nembodiments, copies, reproductions and summaries thereof, and any\nother information and materials provided by KBS to the Recipient shall\nremain the sole and exclusive property of KBS.\n2.5. It shall immediately report to KBS any use or disclosure by the\nRecipient’s employees or any other person of which the Recipient has\nknowledge of any portion of the Confidential Information without\nauthorization from KBS, and will reasonably cooperate with KBS to\nhelp KBS\nregain possession of the Confidential Information and prevent its\nfurther unauthorized use.\n2.6. Upon the written request of KBS, Recipient will effect the\ndestruction of all memoranda, notes, records, tapes, documentation,\ndisks, manuals, files, originals, copies, reproductions and summaries\n(in any form or format, including without limitation, copies resident in\nlong or short-term computer storage devices) of, to the extent they\nconcern or contain Confidential Information that are in Recipient’s\npossession, whether made or compiled by Recipient or furnished to\nRecipient by KBS; provided that Recipient, as a regulated entity, may\nretain the Confidential Information for the purposes of and for so long\nas required by any law, court or regulatory agency or authority or its\ninternal compliance procedures. The confidentiality obligations of this\nAgreement shall continue to apply to such Confidential Information\nretained by Recipient or its Representatives for so long as Recipient or\nits Representatives retains such Confidential Information.\n3. Obligation of Recipient. The Recipient’s obligations to maintain\nthe confidentiality of Confidential Information pursuant to Section 2\nspecifically include, but are not limited to, not disclosing Confidential\nInformation to any persons or entities engaged in a field of business\nsimilar to KBS or in the non-traded REIT industry.\n4.  Exception. The obligations of confidentiality imposed by this\nAgreement do not apply to any Confidential Information that is\nrequired to be disclosed pursuant to operation of law or legal process,\ngovernmental regulation or court order. If Recipient receives a court\norder or other governmental or administrative decree of appropriate\nand sufficient jurisdiction requiring disclosure of KBS’s Confidential\nInformation, Recipient shall give KBS prompt notice prior to such\ndisclosure, if legally permitted, in order to permit KBS, at its expense,\nto seek a protective order in the case of a court order or other\ngovernmental or administrative decree. Recipient agrees to reasonably\ncooperate with KBS, at KBS’s expense and subject to applicable law,\nto limit such disclosure. Recipient shall also reasonably cooperate with\nKBS in seeking a protective order subject to the payment by KBS of all\nout-of-pocket expenses incurred by the party providing such\ncooperation at the request of KBS. Recipient shall release only so\nmuch of KBS’s Confidential Information as Recipient’s counsel\nadvises is required by such order.\n5. Duration. The restrictions on use and disclosure of Confidential\nInformation shall survive for a period of two (2) years. However, with\nrespect to Confidential Information that constitutes (i) a Trade Secret,\nor (ii) is retained by Recipient pursuant to the second clause of\nSection 2.6(ii) above, the confidentiality obligations set forth in this\nAgreement shall continue in effect for so long as such Confidential\nInformation remains a Trade Secret, or is retained by Recipient, as\napplicable.\n6. No Warranties. KBS makes no warranties, express or implied,\nunder this Agreement or by any Confidential Information\ndisclosed to Recipient under\nthis Agreement. All information disclosed hereunder is provided\n“as is.”\n7. No Licenses or Other Obligations. By disclosing information to\nthe Recipient, KBS does not grant any express or implied rights or\nlicenses to the Recipient with respect to any patents, copyrights,\ntrademarks, Trade Secrets or other proprietary rights of KBS. Nothing\nin this Agreement shall obligate KBS to disclose any information to\nRecipient or to engage in any other business activity with Recipient.\n8. Representations and Covenants.\ncovenants, acknowledges, and agrees that:\nRecipient represents,\n8.1. It is aware and its Representatives have been advised that\nsecurities laws prohibit any person who has material non-public\ninformation about a public company from purchasing or selling\nsecurities of such company.\n8.2. This Agreement (and any Confidential Information) is\ndelivered upon the express condition that Recipient will not publicize\nin any manner whatsoever by way of interviews, responses to questions\nor inquiries, press releases or otherwise, any aspect or proposed aspect\nof the subject matter of the Confidential Information without prior\nnotice to and approval of KBS, except as may otherwise be required by\nlaw.\n9. Threatened Breach; Breach; Remedies. In the event of any\nbreach of this Agreement by Recipient, including, without limitation,\nthe actual or threatened disclosure of Confidential Information without\nthe prior express written consent of KBS, KBS will suffer an\nirreparable injury, such that no remedy at law will afford it adequate\nprotection against, or appropriate compensation for, such injury.\nAccordingly, Recipient hereby agrees that KBS shall be entitled,\nwithout waiving any other rights or remedies, to seek specific\nperformance of the Recipient’s obligations as well as such other\ninjunctive relief as may be granted by a court of competent jurisdiction.\n10. Miscellaneous.\n10.1. Severability. If any provision of this Agreement shall not\nbe valid for any reason, such provision shall be entirely severable from,\nand shall have no effect upon, the remainder of this Agreement. Any\nsuch invalid provision shall be subject to partial enforcement to the\nextent necessary to protect the interest of KBS.\n10.2. Governing Law; Forum. This Agreement shall be\nconstrued and controlled by the laws of the State of California without\nreference to the provisions governing conflict of laws, and both parties\nfurther consent to the exclusive jurisdiction by the state and federal\ncourts sitting in the State of California of any dispute arising out of or\nrelated to this Agreement.\n10.3. Enforcement by Successors or Assigns;\nSurvivability. The covenants and agreements contained herein shall\ninure to the benefit of, and may be enforced by, any legal successors or\nassigns of each Party and shall survive any termination of the\nrelationship between the\nParties, whether such termination is at the instance of either Party, and\nregardless of the reasons therefore.\n10.4. Amendment; Waiver. This Agreement, or any provision\nhereof, shall not be waived, changed or terminated except by a writing\nsigned by an authorized officer of both Parties.\n10.5. Counterparts. This Agreement may be executed in one\nor more counterparts, each of which will constitute an original, but all\nof which together constitute a single document. Any signature duly\naffixed to this Agreement and delivered by facsimile transmission shall\nbe deemed to have the same legal effect as the actual signature of the\nperson signing this Agreement, and any Party receiving delivery of a\nfacsimile copy of the signed Agreement may rely on such as having\nactually been signed.\n10.6. Merger. This Agreement constitutes the entire agreement\nbetween the parties with respect to the subject matter of this\nAgreement, except to the extent of existing non-disclosure agreements\nbetween the parties to which this Agreement supplements (but\nsupersedes to the extent of any inconsistency therein).\n10.7. No Implied Waiver. None of the provisions of this\nAgreement shall be deemed to have been waived by any act or\nacquiescence on the part of KBS, its agents, or employees, but only by\nan instrument in writing signed by an authorized officer of KBS. No\nwaiver of any provision of this Agreement shall constitute a waiver of\nany other provision(s) or of the same provision on another occasion.\n10.8. No Assignment. The Recipient may not assign its rights\nor obligations under this Agreement without the express written\nconsent of KBS.\n10.9. Headings and Construction. The headings of Sections in\nthis Agreement are provided for convenience only and will not affect\nits construction or interpretation. All references to “Section” or\n“Sections” refer to the corresponding Section or Sections of this\nAgreement unless otherwise specified. All words used in this\nAgreement will be construed to be of such gender or number as the\ncircumstances require. Unless otherwise expressly provided, the word\n“including” does not limit the preceding words or terms.\nThe parties hereto have executed this Agreement as of the date noted above.\nRecipient Name: KBS Capital Advisors LLC\nBy: By:\nName (print): Name (print):\nTitle: Title:\nS7-1	Non-Disclosure Agreement\nThis Non-Disclosure Agreement (this "Agreement") is made this day of 20_, by and among KBSIII REIT Acquisition VII, LLC,\na Delaware limited liability company ("KBS REIT VII"), KBS Limited Partnership III, a Delaware limited liability partnership ("KBS LP III"),\nKBS Real Estate Investment Trust III, Inc., a Maryland corporation ("KBS III Inc."), KBS Capital Advisors LLC, a Delaware limited liability\ncompany ("KBS CA"), and\na\n(the "Recipient") (KBS REIT VII, KBS LP III, KBS III Inc. and KBS CA are\ncollectively referred to as "KBS"; Recipient and KBS are sometimes referred to in this Agreement individually as a "Party" or collectively as the\n"Parties").\nKBS and Recipient wish to have discussions during which Recipient may be exposed to important business and/or technical information\nwhich\nis\nthe\nproperty\nof\nKBS. Such disclosures may be in the form of written materials, by oral disclosure, or through learned observation, and may\ninclude certain plans, designs, data, operations, financial positions and projections, business and technical information, trade secrets, techniques,\nmethods, supplier and vendor contacts and methods, development plans, acquisition plans, financing options and plans, profit margins, services,\nproprietary information, and other confidential information. Much of this information is the result of substantial expenditures of time, money,\ntechnical\nexpertise,\nand\nresources. And KBS considers this information confidential and/or a trade secret. The unauthorized use or disclosure of this\ninformation could cause significant harm to KBS's business. For this reason and in consideration of the mutual covenants contained\nin\nthis\nAgreement and the disclosure of confidential information to Recipient, the Parties agree as follows:\n1.\nDefinitions. For purposes of this Agreement, the following\nfrom its disclosure or use, and that is the subject of efforts that are\ndefinitions apply:\nreasonable under the circumstances to maintain its secrecy.\n1.1. "Confidential Information" means KBS's non-public,\n2. Obligations of Recipient. Recipient covenants and agrees that:\nconfidential and proprietary information and specifically includes, but\n2.1. It will hold all Confidential Information in trust and in the\nis not necessarily limited to, the following: (A) plans, data, operations,\nstrictest confidence and protect it in accordance with a standard of care\nfinancial positions, historical performance and projections, business\nthat shall be no less than the care it uses to protect its own information\nand technical information, techniques, methods, supplier and vendor\nof like importance but in no event with less than reasonable care;\ncontacts, development plans, acquisition plans, financing options and\nplans, profit margins, services, methodologies, techniques, designs\n2.2. It will not use, copy, or disclose, or permit any unauthorized\n(architectural or otherwise), specifications, tenant lists, tenant\nperson access to, any Confidential Information without KBS's\ninformation, leasing plans or strategies, market information, marketing\npermission, to be granted or withheld in KBS's sole discretion, and\nplans, personnel information, other financial information, business\nprovided that any existing confidentiality notices are included in such\nstrategies, rent and pricing policies, contractual relations with\nreproductions or, if no such notices are included, "Confidential" or\ncustomers and suppliers, business acquisition plans, business\nsome similar notice is stamped on the Confidential Information;\nopportunities, new personnel acquisition plans, and information, books,\n2.3. It may only disclose Confidential Information to its directors,\nrecords, patent applications, proprietary information, and other\nofficers, employees, consultants, insurers, reinsurers, auditors,\nconfidential information and know-how relating to the business of\nregulators, attorneys and agents ("Representatives") provided such\nKBS; (B) information received by KBS from third parties under\nRepresentatives (i) have a need to know and (ii) are informed, directed\nconfidential conditions, which information is identified by KBS as\nand obligated by Recipient to treat such Confidential Information in\nbeing subject to such conditions; and (C) KBS's Trade Secrets.\naccordance with the obligations of this Agreement. Recipient agrees to\nConfidential Information does not include any information that: (W) is\nbe liable for any breach of an obligation hereunder by any of its\nor subsequently becomes publicly available without the Recipient's\nRepresentatives;\nbreach, directly or indirectly, of any obligation owed to KBS;\n(X) became known to the Recipient prior to KBS's disclosure of such\n2.4. All Confidential Information, including all tangible\ninformation to the Recipient as can be proven by Recipient's written\nembodiments, copies, reproductions and summaries thereof, and any\nrecords; (Y) became known to the Recipient from a source other than\nother information and materials provided by KBS to the Recipient shall\nKBS other than by the breach of an obligation of confidentiality owed\nremain the sole and exclusive property of KBS.\nto KBS; or (Z) is independently developed, without any use of KBS's\n2.5. It shall immediately report to KBS any use or disclosure by the\nConfidential Information, by the Recipient as evidenced by its written\nRecipient's employees or any other person of which the Recipient has\nrecords.\nknowledge of any portion of the Confidentia Information without\n1.2. "Trade Secrets" means information that: derives economic\nauthorization from KBS, and will reasonably cooperate with KBS to\nvalue, actual or potential, from not being generally known to, or readily\nhelp KBS\nascertainable by proper means by, other persons who can obtain\neconomic value\n3\nregain possession of the Confidential Information and prevent its\nthis Agreement. All information disclosed hereunder is provided\nfurther unauthorized use.\n"as is."\n2.6. Upon the written request of KBS, Recipient will effect the\n7.\nNo Licenses or Other Obligations. By disclosing information to\ndestruction of all memoranda, notes, records, tapes, documentation,\nthe Recipient, KBS does not grant any express or implied rights or\ndisks, manuals, files, originals, copies, reproductions and summaries\nlicenses to the Recipient with respect to any patents, copyrights,\n(in any form or format, including without limitation, copies resident in\ntrademarks, Trade Secrets or other proprietary rights of KBS. Nothing\nlong or short-term computer storage devices) of, to the extent they\nin this Agreement shall obligate KBS to disclose any information to\nconcern or contain Confidential Information that are in Recipient's\nRecipient or to engage in any other business activity with Recipient.\npossession, whether made or compiled by Recipient or furnished to\n8.\nRepresentations and Covenants. Recipient represents,\nRecipient by KBS; provided that Recipient, as a regulated entity, may\ncovenants, acknowledges, and agrees that:\nretain the Confidential Information for the purposes of and for so long\nas required by any law, court or regulatory agency or authority or its\n8.1. It is aware and its Representatives have been advised that\ninternal compliance procedures. The confidentiality obligations of this\nsecurities laws prohibit any person who has material non-public\nAgreement shall continue to apply to such Confidential Information\ninformation about a public company from purchasing or selling\nretained by Recipient or its Representatives for so long as Recipient or\nsecurities of such company.\nits Representatives retains such Confidential Information.\n8.2. This Agreement (and any Confidential Information) is\n3. Obligation of Recipient. The Recipient's obligations to maintain\ndelivered upon the express condition that Recipient will not publicize\nthe confidentiality of Confidential Information pursuant to Section 2\nin any manner whatsoever by way of interviews, responses to questions\nspecifically include, but are not limited to, not disclosing Confidentia\nor inquiries, press releases or otherwise, any aspect or proposed aspect\nInformation to any persons or entities engaged in a field of business\nof the subject matter of the Confidential Information without prior\nsimilar to KBS or in the non-traded REIT industry.\nnotice to and approval of KBS, except as may otherwise be required by\nlaw.\n4.\nException. The obligations of confidentiality imposed by this\nAgreement do not apply to any Confidential Information that is\n9. Threatened Breach; Breach; Remedies. In the event of any\nrequired to be disclosed pursuant to operation of law or legal process,\nbreach of this Agreement by Recipient, including, without limitation,\ngovernmental regulation or court order. If Recipient receives a court\nthe actual or threatened disclosure of Confidential Information without\norder or other governmental or administrative decree of appropriate\nthe prior express written consent of KBS, KBS will suffer an\nand sufficient jurisdiction requiring disclosure of KBS's Confidential\nirreparable injury, such that no remedy at law will afford it adequate\nInformation, Recipient shall give KBS prompt notice prior to such\nprotection against, or appropriate compensation for, such injury.\ndisclosure, if legally permitted, in order to permit KBS, at its expense,\nAccordingly, Recipient hereby agrees that KBS shall be entitled,\nto seek a protective order in the case of a court order or other\nwithout waiving any other rights or remedies, to seek specific\ngovernmental or administrative decree. Recipient agrees to reasonably\nperformance of the Recipient's obligations as well as such other\ncooperate with KBS, at KBS's expense and subject to applicable law,\ninjunctive relief as may be granted by a court of competent jurisdiction.\nto limit such disclosure. Recipient shall also reasonably cooperate with\n10. Miscellaneous.\nKBS in seeking a protective order subject to the payment by KBS of all\nout-of-pocket expenses incurred by the party providing such\n10.1. Severability. If any provision of this Agreement shall not\ncooperation at the request of KBS. Recipient shall release only so\nbe valid for any reason, such provision shall be entirely severable from,\nmuch of KBS's Confidential Information as Recipient's counse\nand shall have no effect upon, the remainder of this Agreement. Any\nadvises is required by such order.\nsuch invalid provision shall be subject to partial enforcement to the\nextent necessary to protect the interest of KBS.\n5. Duration. The restrictions on use and disclosure of Confidential\nInformation shall survive for a period of two (2) years. However, with\n10.2. Governing Law; Forum. This Agreement shall be\nrespect to Confidential Information that constitutes (i) a Trade Secret,\nconstrued and controlled by the laws of the State of California without\nor (ii) is retained by Recipient pursuant to the second clause of\nreference to the provisions governing conflict of laws, and both parties\nSection 2.6(ii) above, the confidentiality obligations set forth in this\nfurther consent to the exclusive jurisdiction by the state and federal\nAgreement shall continue in effect for so long as such Confidential\ncourts sitting in the State of California of any dispute arising out of or\nInformation remains a Trade Secret, or is retained by Recipient, as\nrelated to this Agreement.\napplicable.\n10.3.\nEnforcement by Successors or Assigns;\n6. No Warranties KBS makes no warranties, express or implied,\nSurvivability. The covenants and agreements contained herein shall\nunder this Agreement or by any Confidential Information\ninure to the benefit of, and may be enforced by, any legal successors or\ndisclosed to Recipient under\nassigns of each Party and shall survive any termination of the\nrelationship between the\n4\nParties, whether such termination is at the instance of either Party, and\nregardless of the reasons therefore.\n10.4. Amendment; Waiver. This Agreement, or any provision\nhereof, shall not be waived, changed or terminated except by a writing\nsigned by an authorized officer of both Parties.\n10.5. Counterparts. This Agreement may be executed in one\nor more counterparts, each of which will constitute an original, but all\nof which together constitute a single document. Any signature duly\naffixed to this Agreement and delivered by facsimile transmission shall\nbe deemed to have the same legal effect as the actual signature of the\nperson signing this Agreement, and any Party receiving delivery of a\nfacsimile copy of the signed Agreement may rely on such as having\nactually been signed.\n10.6. Merger. This Agreement constitutes the entire agreement\nbetween the parties with respect to the subject matter of this\nAgreement, except to the extent of existing non-disclosure agreements\nbetween the parties to which this Agreement supplements (but\nsupersedes to the extent of any inconsistency therein).\n10.7.\nNo Implied Waiver. None of the provisions of this\nAgreement shall be deemed to have been waived by any act or\nacquiescence on the part of KBS, its agents, or employees, but only by\nan instrument in writing signed by an authorized officer of KBS. No\nwaiver of any provision of this Agreement shall constitute a waiver of\nany other provision(s) or of the same provision on another occasion.\n10.8. No Assignment. The Recipient may not assign its rights\nor obligations under this Agreement without the express written\nconsent of KBS.\n10.9. Headings and Construction. The headings of Sections in\nthis Agreement are provided for convenience only and will not affect\nits construction or interpretation. All references to "Section" or\n"Sections" refer to the corresponding Section or Sections of this\nAgreement unless otherwise specified. All words used in this\nAgreement will be construed to be of such gender or number as the\ncircumstances require. Unless otherwise expressly provided, the word\n"including" does not limit the preceding words or terms.\n5\nThe parties hereto have executed this Agreement as of the date noted above.\nRecipient Name:\nKBS Capital Advisors LLC\nBy:\nBy:\nName (print):\nName (print)\nTitle:\nTitle:\nS7-1	Non-Disclosure Agreement\nThis Non-Disclosure Agreement (this “Agreement”) is made this day of\n,20\n, by and among KBSIII REIT Acquisition VII, LLC,\na Delaware limited liability company (“KBS REIT VII”), KBS Limited Partnership III, a Delaware limited liability partnership (“KBS LP III”),\nKBS Real Estate Investment Trust III, Inc., a Maryland corporation (“KBS III Inc.”), KBS Capital Advisors LLC, a Delaware limited liability\ncompany (“KBS CA”), and\n,a\n(the “Recipient”) (KBS REIT VII, KBS LP III, KBS III Inc. and KBS CA are\ncollectively referred to as “KBS”; Recipient and KBS are sometimes referred to in this Agreement individually as a “Party” or collectively as the\n“Parties”).\nKBS and Recipient wish to have discussions during which Recipient may be exposed to important business and/or technical information\nwhich is the property of KBS. Such disclosures may be in the form of written materials, by oral disclosure, or through learned observation, and may\ninclude certain plans, designs, data, operations, financial positions and projections, business and technical information, trade secrets, techniques,\nmethods, supplier and vendor contacts and methods, development plans, acquisition plans, financing options and plans, profit margins, services,\nproprietary information, and other confidential information. Much of this information is the result of substantial expenditures of time, money,\ntechnical expertise, and resources. And KBS considers this information confidential and/or a trade secret. The unauthorized use or disclosure of this\ninformation could cause significant harm to KBS’s business. For this reason and in consideration of the mutual covenants contained in this\nAgreement and the disclosure of confidential information to Recipient, the Parties agree as follows:\n3\n1. Definitions. For purposes of this Agreement, the following\ndefinitions apply:\n1.1.\n“Confidential Information” means KBS’s non-public,\nconfidential and proprietary information and specifically includes, but\nis not necessarily limited to, the following: (A) plans, data, operations,\nfinancial positions, historical performance and projections, business\nand technical information, techniques, methods, supplier and vendor\ncontacts, development plans, acquisition plans, financing options and\nplans, profit margins, services, methodologies, techniques, designs\n(architectural or otherwise), specifications, tenant lists, tenant\ninformation, leasing plans or strategies, market information, marketing\nplans, personnel information, other financial information, business\nstrategies, rent and pricing policies, contractual relations with\ncustomers and suppliers, business acquisition plans, business\nopportunities, new personnel acquisition plans, and information, books,\nrecords, patent applications, proprietary information, and other\nconfidential information and know-how relating to the business of\nKBS; (B) information received by KBS from third parties under\nconfidential conditions, which information is identified by KBS as\nbeing subject to such conditions; and (C) KBS’s Trade Secrets.\nConfidential Information does not include any information that: (W) is\nor subsequently becomes publicly available without the Recipient’s\nbreach, directly or indirectly, of any obligation owed to KBS;\n(X) became known to the Recipient prior to KBS’s disclosure of such\ninformation to the Recipient as can be proven by Recipient’s written\nrecords; (Y) became known to the Recipient from a source other than\nKBS other than by the breach of an obligation of confidentiality owed\nto KBS; or (Z) is independently developed, without any use of KBS’s\nConfidential Information, by the Recipient as evidenced by its written\nrecords.\n1.2.\n“Trade Secrets” means information that: derives economic\nvalue, actual or potential, from not being generally known to, or readily\nascertainable by proper means by, other persons who can obtain\neconomic value\nfrom its disclosure or use, and that is the subject of efforts that are\nreasonable under the circumstances to maintain its secrecy.\n2. Obligations of Recipient. Recipient covenants and agrees that:\n2.1. It will hold all Confidential Information in trust and in the\nstrictest confidence and protect it in accordance with a standard of care\nthat shall be no less than the care it uses to protect its own information\nof like importance but in no event with less than reasonable care;\n2.2. It will not use, copy, or disclose, or permit any unauthorized\nperson access to, any Confidential Information without KBS’s\npermission, to be granted or withheld in KBS’s sole discretion, and\nprovided that any existing confidentiality notices are included in such\nreproductions or, if no such notices are included, “Confidential” or\nsome similar notice is stamped on the Confidential Information;\n2.3. It may only disclose Confidential Information to its directors,\nofficers, employees, consultants, insurers, reinsurers, auditors,\nregulators, attorneys and agents (“Representatives”) provided such\nRepresentatives (i) have a need to know and (ii) are informed, directed\nand obligated by Recipient to treat such Confidential Information in\naccordance with the obligations of this Agreement. Recipient agrees to\nbe liable for any breach of an obligation hereunder by any of its\nRepresentatives;\n2.4. All Confidential Information, including all tangible\nembodiments, copies, reproductions and summaries thereof, and any\nother information and materials provided by KBS to the Recipient shall\nremain the sole and exclusive property of KBS.\n2.5. It shall immediately report to KBS any use or disclosure by the\nRecipient’s employees or any other person of which the Recipient has\nknowledge of any portion of the Confidential Information without\nauthorization from KBS, and will reasonably cooperate with KBS to\nhelp KBS\n4\nregain possession of the Confidential Information and prevent its\nfurther unauthorized use.\n2.6. Upon the written request of KBS, Recipient will effect the\ndestruction of all memoranda, notes, records, tapes, documentation,\ndisks, manuals, files, originals, copies, reproductions and summaries\n(in any form or format, including without limitation, copies resident in\nlong or short-term computer storage devices) of, to the extent they\nconcern or contain Confidential Information that are in Recipient’s\npossession, whether made or compiled by Recipient or furnished to\nRecipient by KBS; provided that Recipient, as a regulated entity, may\nretain the Confidential Information for the purposes of and for so long\nas required by any law, court or regulatory agency or authority or its\ninternal compliance procedures. The confidentiality obligations of this\nAgreement shall continue to apply to such Confidential Information\nretained by Recipient or its Representatives for so long as Recipient or\nits Representatives retains such Confidential Information.\n3. Obligation of Recipient. The Recipient’s obligations to maintain\nthe confidentiality of Confidential Information pursuant to Section 2\nspecifically include, but are not limited to, not disclosing Confidential\nInformation to any persons or entities engaged in a field of business\nsimilar to KBS or in the non-traded REIT industry.\n4. Exception. The obligations of confidentiality imposed by this\nAgreement do not apply to any Confidential Information that is\nrequired to be disclosed pursuant to operation of law or legal process,\ngovernmental regulation or court order. If Recipient receives a court\norder or other governmental or administrative decree of appropriate\nand sufficient jurisdiction requiring disclosure of KBS’s Confidential\nInformation, Recipient shall give KBS prompt notice prior to such\ndisclosure, if legally permitted, in order to permit KBS, at its expense,\nto seek a protective order in the case of a court order or other\ngovernmental or administrative decree. Recipient agrees to reasonably\ncooperate with KBS, at KBS’s expense and subject to applicable law,\nto limit such disclosure. Recipient shall also reasonably cooperate with\nKBS in seeking a protective order subject to the payment by KBS of all\nout-of-pocket expenses incurred by the party providing such\ncooperation at the request of KBS. Recipient shall release only so\nmuch of KBS’s Confidential Information as Recipient’s counsel\nadvises is required by such order.\n5. Duration. The restrictions on use and disclosure of Confidential\nInformation shall survive for a period of two (2) years. However, with\nrespect to Confidential Information that constitutes (i) a Trade Secret,\nor (ii) is retained by Recipient pursuant to the second clause of\nSection 2.6(ii) above, the confidentiality obligations set forth in this\nAgreement shall continue in effect for so long as such Confidential\nInformation remains a Trade Secret, or is retained by Recipient, as\napplicable.\n6. No Warranties. KBS makes no warranties, express or implied,\nunder this Agreement or by any Confidential Information\ndisclosed to Recipient under\nthis Agreement. All information disclosed hereunder is provided\n“as is.”\n7. No Licenses or Other Obligations. By disclosing information to\nthe Recipient, KBS does not grant any express or implied rights or\nlicenses to the Recipient with respect to any patents, copyrights,\ntrademarks, Trade Secrets or other proprietary rights of KBS. Nothing\nin this Agreement shall obligate KBS to disclose any information to\nRecipient or to engage in any other business activity with Recipient.\n8.\nRepresentations and Covenants.\nRecipient represents,\ncovenants, acknowledges, and agrees that:\n8.1. It is aware and its Representatives have been advised that\nsecurities laws prohibit any person who has material non-public\ninformation about a public company from purchasing or selling\nsecurities of such company.\n8.2. This Agreement (and any Confidential Information) is\ndelivered upon the express condition that Recipient will not publicize\nin any manner whatsoever by way of interviews, responses to questions\nor inquiries, press releases or otherwise, any aspect or proposed aspect\nof the subject matter of the Confidential Information without prior\nnotice to and approval of KBS, except as may otherwise be required by\nlaw.\n9. Threatened Breach; Breach; Remedies. In the event of any\nbreach of this Agreement by Recipient, including, without limitation,\nthe actual or threatened disclosure of Confidential Information without\nthe prior express written consent of KBS, KBS will suffer an\nirreparable injury, such that no remedy at law will afford it adequate\nprotection against, or appropriate compensation for, such injury.\nAccordingly, Recipient hereby agrees that KBS shall be entitled,\nwithout waiving any other rights or remedies, to seek specific\nperformance of the Recipient’s obligations as well as such other\ninjunctive relief as may be granted by a court of competent jurisdiction.\n10. Miscellaneous.\n10.1. Severability. If any provision of this Agreement shall not\nbe valid for any reason, such provision shall be entirely severable from,\nand shall have no effect upon, the remainder of this Agreement. Any\nsuch invalid provision shall be subject to partial enforcement to the\nextent necessary to protect the interest of KBS.\n10.2. Governing Law; Forum. This Agreement shall be\nconstrued and controlled by the laws of the State of California without\nreference to the provisions governing conflict of laws, and both parties\nfurther consent to the exclusive jurisdiction by the state and federal\ncourts sitting in the State of California of any dispute arising out of or\nrelated to this Agreement.\n10.3.\nEnforcement by Successors or Assigns;\nSurvivability. The covenants and agreements contained herein shall\ninure to the benefit of, and may be enforced by, any legal successors or\nassigns of each Party and shall survive any termination of the\nrelationship between the\n5\nParties, whether such termination is at the instance of either Party, and\nregardless of the reasons therefore.\n10.4. Amendment; Waiver. This Agreement, or any provision\nhereof, shall not be waived, changed or terminated except by a writing\nsigned by an authorized officer of both Parties.\n10.5. Counterparts. This Agreement may be executed in one\nor more counterparts, each of which will constitute an original, but all\nof which together constitute a single document. Any signature duly\naffixed to this Agreement and delivered by facsimile transmission shall\nbe deemed to have the same legal effect as the actual signature of the\nperson signing this Agreement, and any Party receiving delivery of a\nfacsimile copy of the signed Agreement may rely on such as having\nactually been signed.\n10.6. Merger. This Agreement constitutes the entire agreement\nbetween the parties with respect to the subject matter of this\nAgreement, except to the extent of existing non-disclosure agreements\nbetween the parties to which this Agreement supplements (but\nsupersedes to the extent of any inconsistency therein).\n10.7. No Implied Waiver. None of the provisions of this\nAgreement shall be deemed to have been waived by any act or\nacquiescence on the part of KBS, its agents, or employees, but only by\nan instrument in writing signed by an authorized officer of KBS. No\nwaiver of any provision of this Agreement shall constitute a waiver of\nany other provision(s) or of the same provision on another occasion.\n10.8. No Assignment. The Recipient may not assign its rights\nor obligations under this Agreement without the express written\nconsent of KBS.\n10.9. Headings and Construction. The headings of Sections in\nthis Agreement are provided for convenience only and will not affect\nits construction or interpretation. All references to “Section” or\n“Sections” refer to the corresponding Section or Sections of this\nAgreement unless otherwise specified. All words used in this\nAgreement will be construed to be of such gender or number as the\ncircumstances require. Unless otherwise expressly provided, the word\n“including” does not limit the preceding words or terms.\nThe parties hereto have executed this Agreement as of the date noted above.\nRecipient Name:\nKBS Capital Advisors LLC\nBy:\nBy:\nName (print):\nName (print):\nTitle:\nTitle:\nS7-1
+5fef505c7e8c60c597f150f2f2976684.pdf	effective_date jurisdiction party term	Exhibit (d)(4)\nRECIPROCAL CONFIDENTIALITY AGREEMENT\nTHIS RECIPROCAL CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made as of this 16th day of August\n2018, between CafePress Inc., having its principal place of business at 11909 Shelbyville Road, Louisville, Kentucky 40243\n(“CafePress”) and District Photo, Inc., having its principal place of business at 10501 Rhode Island Avenue, Beltsville, MD 20705\n(“Company”).\nWHEREAS, in connection with discussions between Company and CafePress concerning a potential transaction between the parties,\neach party (as the “Disclosing Party”) may find it necessary and desirable to disclose to the other party (as the “Recipient”) certain\ninformation which is proprietary and/or confidential to the Disclosing Party.\nNOW, THEREFORE, in consideration of the disclosure of Confidential Information by each party and each party’s willingness to\nprotect the Confidential Information of the other party it is hereby agreed as follows:\n1. CONFIDENTIAL INFORMATION. For purposes of this Agreement, the term “Confidential Information” shall mean:\n(a) Any non-public information, know-how, data, program, software, process, method, procedure, protocol, design, drawing,\ndiagram, formula, strategy, technology, algorithm, specification or work in progress, or other manufacturing, marketing, financial,\nbusiness, technical or personnel information, as well as information pertaining to sales, suppliers, customers, employees, services, or\nbusiness operations or plans, whether in oral, written, graphic, electronic or any other form, which is learned or disclosed in the\ncourse of the discussions and/or business dealings of the parties; and\n(b) Any document or other communication which is marked “confidential” or is known or should be known by the Recipient to be\nconfidential or of a proprietary nature and is learned or disclosed in the course of the discussions and/or business dealings of the\nparties.\nConfidential Information may also include information of third parties to whom the Disclosing Party has an obligation to treat the\ninformation as confidential. The Disclosing Party will have the sole discretion to determine the information it will disclose under this\nAgreement. Confidential Information will remain the property of the Disclosing Party at all times.\n2. TREATMENT OF CONFIDENTIAL INFORMATION.\n(a) The Recipient will not at any time disclose the Disclosing Party’s Confidential Information to any person, or use the Disclosing\nParty’s Confidential Information for any purpose other than determining the feasibility of a business relationship between the parties.\nThe Recipient shall only disclose the Disclosing Party’s Confidential Information to those of its employees and agents who have a\nneed to know such information for the purpose described above, and who are under an obligation of confidentiality with respect to\nsuch information at least as restrictive as that set forth in this Agreement.\n(b) The Recipient will use the same degree of care to protect the Disclosing Party’s Confidential Information as it uses to protect its\nown information of similar importance, but in no event less than reasonable care. The Recipient shall not reverse engineer, decompile\nor disassemble any equipment, software or other computer program disclosed to the Recipient under this Agreement.\n(c) The Recipient shall not export the Disclosing Party’s Confidential Information without the Disclosing Party’s written consent,\nand then only in compliance with all applicable law, rules and regulations.\n3. RETURN OF CONFIDENTIAL INFORMATION. The Recipient shall promptly return the Disclosing Party’s Confidential\nInformation to the Disclosing Party upon termination of the business relationship between the parties, or upon request, if earlier.\n4. NON-PROTECTED INFORMATION. The Recipient’s obligations set forth in this Agreement shall not apply to:\n(a) Information that, at the time it is disclosed, is already in the Recipient’s rightful possession or available to it or its employees\nfrom any other source having no obligation not to disclose it, without obligation of confidentiality.\n(b) Information that is, or any time hereafter becomes, available to the public without breach of this Agreement by the Recipient.\n(c) Information that, after it is disclosed, is at any time obtained by the Recipient from any other person having no obligation not to\ndisclose it, without obligation of confidentiality.\n(d) Information that is independently developed by the Recipient without use of or reference to the Confidential Information of the\nDisclosing Party.\n5. COURT ORDERED DISCLOSURE. Recipient shall not be liable for disclosure of the Disclosing Party’s Confidential\nInformation if made in response to a valid order of a court or authorized agency of government or otherwise as required by law, rule\nor regulation, including without limitation, as necessary to comply with applicable securities regulations; provided that the Recipient\nprovides reasonable notice to the Disclosing Party so that the Disclosing Party may seek to prevent or limit such disclosure, or to\nobtain confidential treatment for such disclosure.\n6. TERM. The period during which disclosures may be made under this Agreement (the “Disclosure Period”) shall be one (1) year,\nand the obligations of confidentiality set forth herein shall continue for a period of three (3) years following the expiration of the\nDisclosure Period, except that with respect to trade secret information, the obligations of confidentiality shall continue indefinitely.\n7. NO LICENSE; NO WARRANTY. Neither the disclosures made under this Agreement, nor this Agreement, shall be construed\nto convey any right, title, interest, or copyright in any Confidential Information or any license to use, sell, exploit, copy or develop\nfurther any Confidential Information. This Agreement, and the disclosures made hereunder, do not in any way bind the parties to\nenter into or continue a business relationship of any type with the other. ALL CONFIDENTIAL INFORMATION IS PROVIDED\n“AS IS”, WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO\nWARRANTIES OF ACCURACY, COMPLETENESS OR NON-INFRINGEMENT, AND ANY SUCH WARRANTIES ARE\nHEREBY DISCLAIMED.\n8. GOVERNING LAW. This Agreement shall be construed for all purposes in accordance with the law of the Commonwealth of\nKentucky, exclusive of its choice of law principles. The Kentucky federal or state courts for Jefferson County will have exclusive\njurisdiction and venue over any dispute arising out of or relating to this Agreement, and each party hereby irrevocably consents to the\npersonal jurisdiction of and venue in such courts.\n9. SEVERABILITY. If any of the provisions of this Agreement is declared void, invalid or unenforceable, such provisions shall be\nsevered from this Agreement, which shall otherwise remain in full force and effect.\n10. REMEDIES. The parties agree that, if there is a breach of this Agreement by either party, the other shall have all remedies\navailable to it in law and/or equity. The Recipient acknowledges that its breach of this Agreement will result in immediate and\nirreparable harm to the Disclosing Party, for which there will be no adequate remedy at law, and that in such event the Disclosing\nParty will be entitled to seek appropriate equitable relief as may be granted by a court of competent jurisdiction.\n11. ATTORNEY FEES. In the event any suit or other action is commenced to construe or enforce any provision of this\nAgreement, the prevailing party, in addition to all other amounts, shall be entitled to reasonable attorney’s fee and court costs.\n12. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to the subject\nmatters addressed herein, and supersedes any and all prior and contemporaneous agreements (whether oral or written) between the\nparties regarding such subject matter. This Agreement may not be amended, modified or waived, in whole or in part, except in\nwriting signed by both parties. A party’s failure to require performance will not affect the right to require performance at any later\ntime.\n13. ASSIGNEES AND SUCCESSORS. Neither party may assign this Agreement without the other party’s written consent, except\nthat no consent is needed for an assignment of this Agreement in connection with a merger, acquisition, reorganization or sale of all\nor substantially all of a party’s assets. Any assignment in violation of this Agreement will be void. This Agreement shall benefit and\nbe binding upon the parties hereto and their respective, permitted assignees and successors.\n14. COUNTERPARTS. This Agreement may be executed by facsimile and/or in counterparts.\nIN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the date set forth above.\nCafePress Inc.\nDistrict Photo, Inc.\n/s/ Ekumene M. Lysonge\n/s/ Kurt Sturn\nSignature\nSignature\nEkumene M. Lysonge\nKurt Sturn\nName (please print)\nName (please print)\nVice President & General Counsel\nDirector\nTitle (please print)\nTitle (please print)	Exhibit (d)(4)\nRECIPROCAL CONFIDENTIALITY AGREEMENT\nTHIS RECIPROCAL CONFIDENTIALITY AGREEMENT (hereinafter the ”A greement”) is made as of this 16th day of August\n2018, between CafePress Inc., having its principal place of business at 11909 Shelbyville Road, Louisville, Kentucky 40243\n(”CafePress") and District Photo, Inc., having its principal place of business at 10501 Rhode Island Avenue, Beltsville, MD 20705\n(”Company”).\nWHEREAS, in connection with discussions between Company and CafePress concerning a potential transaction between the parties,\neach party (as the ”Disclosing Party") may find it necessary and desirable to disclose to the other party (as the ”Recipient”) certain\ninformation which is proprietary and/or confidential to the Disclosing Party.\nNOW, THEREFORE, in consideration of the disclosure of Confidential Information by each party and each party’s willingness to\nprotect the Confidential Information of the other party it is hereby agreed as follows:\n1. C O NFIDENTIAL INFORMATION. For purposes of this A greement, the term ”Confidential Information” shall mean:\n(a) Any non-public information, know-how, data, program, software, process, method, procedure, protocol, design, drawing,\ndiagram, formula, strategy, technology, algorithm, specification or work in progress, or other manufacturing, marketing, financial,\nbusiness, technical or personnel information, as well as information pertaining to sales, suppliers, customers, employees, services, or\nbusiness operations or plans, whether in oral, written, graphic, electronic or any other form, which is learned or disclosed in the\ncourse of the discussions and/or business dealings of the parties; and\n(b) Any document or other communication which is marked ”confidential" or is known or should be known by the Recipient to be\nconfidential or of a proprietary nature and is learned or disclosed in the course of the discussions and/or business dealings of the\nparties.\nConfidential Information may also include information of third parties to whom the Disclosing Party has an obligation to treat the\ninformation as confidential. The Disclosing Party will have the sole discretion to determine the information it will disclose under this\nAgreement. Confidential Information will remain the property of the Disclosing Party at all times.\n2. TREATMENT OF CONFIDENTIAL INFORMATION.\n(a) The Recipient will not at any time disclose the Disclosing Party's Confidential Information to any person, or use the Disclosing\nParty’ s Confidential Information for any purpose other than determining the feasibility of a business relationship between the parties.\nThe Recipient shall only disclose the Disclosing Party's Confidential Information to those of its employees and agents who have a\nneed to know such information for the purpose described above, and who are under an obligation of confidentiality with respect to\nsuch information at least as restrictive as that set forth in this Agreement.\n(b) The Recipient will use the same degree of care to protect the Disclosing Party's Confidential Information as it uses to protect its\nown information of similar importance, but in no event less than reasonable care. The Recipient shall not reverse engineer, decompile\nor disassemble any equipment, software or other computer program disclosed to the Recipient under this A greement.\n(c) The Recipient shall not export the Disclosing Party's Confidential Information without the Disclosing Party’s written consent,\nand then only in compliance with all applicable law, rules and regulations.\n \n3. RETURN OF CONFIDENTIAL INFORMATION. The Recipient shall promptly return the Disclosing Party's Confidential\nInformation to the Disclosing Party upon termination of the business relationship between the parties, or upon request, if earlier.\n4. NO N-PROTECTED INFORMATION. The Recipient' s obligations set forth in this Agreement shall not apply to:\n(a) Information that, at the time it is disclosed, is already in the Recipient’s rightful possession or available to it or its employees\nfrom any other source having no obligation not to disclose it, without obligation of confidentiality.\n(b) Information that is, or any time hereafter becomes, available to the public without breach of this Agreement by the Recipient.\n(c) Information that, after it is disclosed, is at any time obtained by the Recipient from any other person having no obligation not to\ndisclose it, without obligation of confidentiality.\n(d) Information that is independently developed by the Recipient without use of or reference to the Confidential Information of the\nDisclosing Party.\n5. COURT ORDERED DISCLOSURE. Recipient shall not be liable for disclosure of the Disclosing Party's Confidential\nInformation if made in response to a valid order of a court or authorized agency of government or otherwise as required by law, rule\nor regulation, including without limitation, as necessary to comply with applicable securities regulations; provided that the Recipient\nprovides reasonable notice to the Disclosing Party so that the Disclosing Party may seek to prevent or limit such disclosure, or to\nobtain confidential treatment for such disclosure.\n6. TERM. The period during which disclosures may be made under this Agreement (the ”Disclosure Period”) shall be one (1) year,\nand the obligations of confidentiality set forth herein shall continue for a period of three (3) years following the expiration of the\nDisclosure Period, except that with respect to trade secret information, the obligations of confidentiality shall continue indefinitely.\n7. NO LICENSE g NO WARRANTY. Neither the disclosures made under this Agreement, nor this Agreement, shall be construed\nto convey any right, title, interest, or copyright in any Confidential Information or any license to use, sell, exploit, copy or develop\nfurther any Confidential Information. This Agreement, and the disclosures made hereunder, do not in any way bind the parties to\nenter into or continue a business relationship of any type with the other. ALL CONFIDENTIAL INFORMATION IS PROVIDED\n”AS IS", WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO\nWARRANTIES OF ACCURACY, COMPLETENESS OR NON-INFRINGEMENT, AND ANY SUCH WARRANTIES ARE\nHEREBY DISCLAIMED.\n8. GOVERNING LAW. This Agreement shall be construed for all purposes in accordance with the law of the Commonwealth of\nKentucky, exclusive of its choice of law principles. The Kentucky federal or state courts forJefferson County will have exclusive\njurisdiction and venue over any dispute arising out of or relating to this Agreement, and each party hereby irrevocably consents to the\npersonal jurisdiction of and venue in such courts.\n9. SEVERABIL ITY. If any of the provisions of this Agreement is declared void, invalid or unenforceable, such provisions shall be\nsevered from this A greement, which shall otherwise remain in full force and effect.\n10. REMEDIES. The parties agree that, if there is a breach of this Agreement by either party, the other shall have all remedies\navailable to it in law and/or equity. The Recipient acknowledges that its breach of this Agreement will result in immediate and\nirreparable harm to the Disclosing Party, for which there will be no adequate remedy at law, and that in such event the Disclosing\nParty will be entitled to seek appropriate equitable relief as may be granted by a court of competent jurisdiction.\n \n11. ATTORNEY FEES. In the event any suit or other action is commenced to construe or enforce any provision of this Agreement, the prevailing party, in addition to all other amounts, shall be entitled to reasonable attomey’s fee and court costs. 12. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to the subject matters addressed herein, and supersedes any and all prior and contemporaneous agreements (whether oral or written) between the parties regarding such subject matter. This Agreement may not be amended, modified or waived, in whole or in part, except in writing signed by both parties. A party’s failure to require performance will not affect the right to require performance at any later time.\n13. ASSIG NEES AND SUCCESSORS. Neither party may assign this Agreement without the other party’ s written consent, except that no consent is needed for an assignment of this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of a party’ s assets. Any assignment in violation of this Agreement will be void. This Agreement shall benefit and be binding upon the parties hereto and their respective, permitted assignees and successors. 14. COUNTERPART S. This A greement may be executed by facsimile and/or in counterparts. IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the date set forth above. C afePress Inc.\n/s/ Ekumene M. Lysonge\nSignafiire\nEkumene M. Lysonge\nN ame (please print) —\nVice President & General Counsel\nit e (p ease pnntI\nDistrict Photo, Inc.\n/s/ Kurt Sturn\nS‘—tu1gna re\nKurt Sturn\nN ame (please print) ‘\nDirector\nit e (p ease pnntI	Exhibit (d)(4)\nRECIPROCAL CONFIDENTIALITY AGREEMENT\nTHIS RECIPROCAL CONFIDENTIALITY AGREEMENT (hereinafter the "Agreement") is made as of this 16th day of A ugust\n2018, between CafePress Inc., having its principal place of business at 11909 Shelbyville Road, Louisville, Kentucky 40243\n("CafePress") and District Photo, Inc., having its principal place of business at 10501 Rhode Island Avenue, Beltsville, MD 20705\n("Company").\nWHEREAS, in connection with discussions between Company and CafePress concerning a potential transaction between the parties,\neach party (as the "Disclosing Party") may find it necessary and desirable to disclose to the other party (as the "Recipient") certain\ninformation which is proprietary and/or confidential to the Disclosing Party.\nNOW, THEREFORE, in consideration of the disclosure of Confidential Information by each party and each party's willingness to\nprotect the Confidential Information of the other party it is hereby agreed as follows:\n1.\nCONFIDENTIAL INFORMATION. For purposes of this A greement, the term "Confidential Information" shall mean:\n(a)\nAny non-public information, know-how, data, program, software, process, method, procedure, protocol, design drawing,\ndiagram, formula, strategy, technology, algorithm, specification or work in progress, or other manufacturing, marketing, financial,\nbusiness, technical or personnel information, as well as information pertaining to sales, suppliers, customers, employees, services, or\nbusiness operations or plans, whether in oral, written, graphic, electronic or any other form, which is learned or disclosed in the\ncourse of the discussions and/or business dealings of the parties; and\n(b) Any document or other communication which is marked "confidential" or is known or should be known by the Recipient to be\nconfidential or of a proprietary nature and is learned or disclosed in the course of the discussions and/or business dealings of the\nparties.\nConfidential Information may also include information of third parties to whom the Disclosing Party has an obligation to treat the\ninformation as confidential. The Disclosing Party will have the sole discretion to determine the information it will disclose under this\nAgreement. Confidential Information will remain the property of the Disclosing Party at all times.\n2. TREATMENT OF CONFIDENTIAL INFORMATION.\n(a) The Recipient will not at any time disclose the Disclosing Party's Confidential Information to any person, or use the Disclosing\nParty's Confidential Information for any purpose other than determining the feasibility of a business relationship between the parties.\nThe Recipient shall only disclose the Disclosing Party's Confidential Information to those of its employees and agents who have a\nneed to know such information for the purpose described above, and who are under an obligation of confidentiality with respect to\nsuch information at least as restrictive as that set forth in this A greement.\n(b) The Recipient will use the same degree of care to protect the Disclosing Party's Confidentia Information as it uses to protect its\nown information of similar importance, but in no event less than reasonable care. The Recipient shall not reverse engineer, decompile\nor disassemble any equipment, software or other computer program disclosed to the Recipient under this Agreement.\n(c)\nThe Recipient shall not export the Disclosing Party's Confidential Information without the Disclosing Party's written consent\nand then only in compliance with all applicable law, rules and regulations.\n3.\nRETURN OF CONFIDENTIAL INFORMATION. The Recipient shall promptly return the Disclosing Party's Confidential\nInformation to the Disclosing Party upon termination of the business relationship between the parties, or upon request, if earlier.\n4.\nNON-PROTECTED INFORMATION The Recipient's obligations set forth in this greement shall not apply to:\n(a) Information that, at the time it is disclosed, is already in the Recipient's rightful possession or available to it or its employees\nfrom any other source having no obligation not to disclose it, without obligation of confidentiality.\n(b) Information that is, or any time hereafter becomes, available to the public without breach of this A greement by the Recipient.\n(c) Information that, after it is disclosed, is at any time obtained by the Recipient from any other person having no obligation not to\ndisclose it, without obligation of confidentiality.\n(d) Information that is independently developed by the Recipient without use of or reference to the Confidential Information of the\nDisclosing Party.\n5.\nCOURT ORDERED DISCLOSURE. Recipient shall not be liable for disclosure of the Disclosing Party's Confidential\nInformation if made in response to a valid order of a court or authorized agency of government or otherwise as required by law, rule\nor regulation, including without limitation, as necessary to comply with applicable securities regulations; provided that the Recipient\nprovides reasonable notice to the Disclosing Party so that the Disclosing Party may seek to prevent or limit such disclosure, or to\nobtain confidential treatment for such disclosure.\n6. TERM. The period during which disclosures may be made under this Agreement (the "Disclosure Period") shall be one (1) year,\nand the obligations of confidentiality set forth herein shall continue for a period of three (3) years following the expiration of the\nDisclosure Period, except that with respect to trade secret information, the obligations of confidentiality shall continue indefinitely.\n7.\nNO LICENSE; NO WARRANTY. Neither the disclosures made under this Agreement, nor this A greement, shall be construed\nto convey any right, title, interest, or copyright in any Confidential Information or any license to use, sell, exploit, copy or develop\nfurther any Confidentia Information. This Agreement, and the disclosures made hereunder, do not in any way bind the parties to\nenter into or continue a business relationship of any type with the other. ALL CONFIDENTIAL INFORMATION IS PROVIDED\n"AS IS", WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO\nWARRANTIES OF ACCURACY, COMPLETENESS OR NON-INFRINGEMENT, AND ANY SUCH WARRANTIES ARE\nHEREBY DISCLAIMED.\n8. GOVERNING LAW. This Agreement shall be construed for all purposes in accordance with the law of the Commonwealth of\nKentucky, exclusive of its choice of law principles. The Kentucky federal or state courts for Jefferson County will have exclusive\njurisdiction and venue over any dispute arising out of or relating to this Agreement, and each party hereby irrevocably consents to the\npersonal jurisdiction of and venue in such courts.\n9. SEVERABILITY. If any of the provisions of this Agreement is declared void, invalid or unenforceable, such provisions shall be\nsevered from this A greement, which shall otherwise remain in full force and effect.\n10. REMEDIES. The parties agree that, if there is a breach of this Agreement by either party, the other shall have all remedies\navailable to it in law and/or equity. The Recipient acknowledges that its breach of this Agreement will result in immediate and\nirreparable harm to the Disclosing Party, for which there will be no adequate remedy at law, and that in such event the Disclosing\nParty will be entitled to seek appropriate equitable relief as may be granted by a court of competent jurisdiction.\n11.\nATTORNEY FEES. In the event any suit or other action is commenced to construe or enforce any provision of this\nAgreement, the prevailing party, in addition to all other amounts, shall be entitled to reasonable attorney's fee and court costs.\n12. ENTIRE AGREEMENT. This A greement constitutes the entire agreement between the parties with respect to the subject\nmatters addressed herein, and supersedes any and all prior and contemporaneous agreements (whether oral or written) between the\nparties regarding such subject matter. This Agreement may not be amended, modified or waived, in whole or in part, except in\nwriting signed by both parties. A party's failure to require performance will not affect the right to require performance at any later\ntime.\n13. ASSIGNEES AND SUCCESSORS. Neither party may assign this A greement without the other party's written consent, except\nthat no consent is needed for an assignment of this Agreement in connection with a merger, acquisition, reorganization or sale of all\nor\nsubstantially all of a party's assets. Any assignment in violation of this Agreement will be void. This Agreement shall benefit and\nbe binding upon the parties hereto and their respective, permitted assignees and successors.\n14. COUNTERPARTS. This A greement may be executed by facsimile and/or in counterparts.\nIN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the date set forth above.\nCafePress Inc.\nDistrict Photo, Inc.\n/s/ Ekumene M. Lysonge\n/s/ Kurt Sturn\nSignature\nS1gnature\nEkumene M. Lysonge\nKurt Sturn\nName (please print)\nName (please print)\nVice President & General Counsel\nDirector\nTitle (please print)\nTitle Tplease print)	Exhibit (d)(4)\nRECIPROCAL CONFIDENTIALITY AGREEMENT\nTHIS RECIPROCAL CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made as of this 16th day of August\n2018, between CafePress Inc., having its principal place of business at 11909 Shelbyville Road, Louisville, Kentucky 40243\n(“CafePress”) and District Photo, Inc., having its principal place of business at 10501 Rhode Island Avenue, Beltsville, MD 20705\n(“Company”).\nWHEREAS, in connection with discussions between Company and CafePress concerning a potential transaction between the parties,\neach party (as the “Disclosing Party”) may find it necessary and desirable to disclose to the other party (as the “Recipient”) certain\ninformation which is proprietary and/or confidential to the Disclosing Party.\nNOW, THEREFORE, in consideration of the disclosure of Confidential Information by each party and each party’s willingness to\nprotect the Confidential Information of the other party it is hereby agreed as follows:\n1. CONFIDENTIAL INFORMATION. For purposes of this Agreement, the term “Confidential Information” shall mean:\n(a) Any non-public information, know-how, data, program, software, process, method, procedure, protocol, design, drawing,\ndiagram, formula, strategy, technology, algorithm, specification or work in progress, or other manufacturing, marketing, financial,\nbusiness, technical or personnel information, as well as information pertaining to sales, suppliers, customers, employees, services, or\nbusiness operations or plans, whether in oral, written, graphic, electronic or any other form, which is learned or disclosed in the\ncourse of the discussions and/or business dealings of the parties; and\n(b) Any document or other communication which is marked “confidential” or is known or should be known by the Recipient to be\nconfidential or of a proprietary nature and is learned or disclosed in the course of the discussions and/or business dealings of the\nparties.\nConfidential Information may also include information of third parties to whom the Disclosing Party has an obligation to treat the\ninformation as confidential. The Disclosing Party will have the sole discretion to determine the information it will disclose under this\nAgreement. Confidential Information will remain the property of the Disclosing Party at all times.\n2. TREATMENT OF CONFIDENTIAL INFORMATION.\n(a) The Recipient will not at any time disclose the Disclosing Party’s Confidential Information to any person, or use the Disclosing\nParty’s Confidential Information for any purpose other than determining the feasibility of a business relationship between the parties.\nThe Recipient shall only disclose the Disclosing Party’s Confidential Information to those of its employees and agents who have a\nneed to know such information for the purpose described above, and who are under an obligation of confidentiality with respect to\nsuch information at least as restrictive as that set forth in this Agreement.\n(b) The Recipient will use the same degree of care to protect the Disclosing Party’s Confidential Information as it uses to protect its\nown information of similar importance, but in no event less than reasonable care. The Recipient shall not reverse engineer, decompile\nor disassemble any equipment, software or other computer program disclosed to the Recipient under this Agreement.\n(c) The Recipient shall not export the Disclosing Party’s Confidential Information without the Disclosing Party’s written consent,\nand then only in compliance with all applicable law, rules and regulations.\n3. RETURN OF CONFIDENTIAL INFORMATION. The Recipient shall promptly return the Disclosing Party’s Confidential\nInformation to the Disclosing Party upon termination of the business relationship between the parties, or upon request, if earlier.\n4. NON-PROTECTED INFORMATION. The Recipient’s obligations set forth in this Agreement shall not apply to:\n(a) Information that, at the time it is disclosed, is already in the Recipient’s rightful possession or available to it or its employees\nfrom any other source having no obligation not to disclose it, without obligation of confidentiality.\n(b) Information that is, or any time hereafter becomes, available to the public without breach of this Agreement by the Recipient.\n(c) Information that, after it is disclosed, is at any time obtained by the Recipient from any other person having no obligation not to\ndisclose it, without obligation of confidentiality.\n(d) Information that is independently developed by the Recipient without use of or reference to the Confidential Information of the\nDisclosing Party.\n5. COURT ORDERED DISCLOSURE. Recipient shall not be liable for disclosure of the Disclosing Party’s Confidential\nInformation if made in response to a valid order of a court or authorized agency of government or otherwise as required by law, rule\nor regulation, including without limitation, as necessary to comply with applicable securities regulations; provided that the Recipient\nprovides reasonable notice to the Disclosing Party so that the Disclosing Party may seek to prevent or limit such disclosure, or to\nobtain confidential treatment for such disclosure.\n6. TERM. The period during which disclosures may be made under this Agreement (the “Disclosure Period”) shall be one (1) year,\nand the obligations of confidentiality set forth herein shall continue for a period of three (3) years following the expiration of the\nDisclosure Period, except that with respect to trade secret information, the obligations of confidentiality shall continue indefinitely.\n7. NO LICENSE; NO WARRANTY. Neither the disclosures made under this Agreement, nor this Agreement, shall be construed\nto convey any right, title, interest, or copyright in any Confidential Information or any license to use, sell, exploit, copy or develop\nfurther any Confidential Information. This Agreement, and the disclosures made hereunder, do not in any way bind the parties to\nenter into or continue a business relationship of any type with the other. ALL CONFIDENTIAL INFORMATION IS PROVIDED\n“AS IS”, WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO\nWARRANTIES OF ACCURACY, COMPLETENESS OR NON-INFRINGEMENT, AND ANY SUCH WARRANTIES ARE\nHEREBY DISCLAIMED.\n8. GOVERNING LAW. This Agreement shall be construed for all purposes in accordance with the law of the Commonwealth of\nKentucky, exclusive of its choice of law principles. The Kentucky federal or state courts for Jefferson County will have exclusive\njurisdiction and venue over any dispute arising out of or relating to this Agreement, and each party hereby irrevocably consents to the\npersonal jurisdiction of and venue in such courts.\n9. SEVERABILITY. If any of the provisions of this Agreement is declared void, invalid or unenforceable, such provisions shall be\nsevered from this Agreement, which shall otherwise remain in full force and effect.\n10. REMEDIES. The parties agree that, if there is a breach of this Agreement by either party, the other shall have all remedies\navailable to it in law and/or equity. The Recipient acknowledges that its breach of this Agreement will result in immediate and\nirreparable harm to the Disclosing Party, for which there will be no adequate remedy at law, and that in such event the Disclosing\nParty will be entitled to seek appropriate equitable relief as may be granted by a court of competent jurisdiction.\n11. ATTORNEY FEES. In the event any suit or other action is commenced to construe or enforce any provision of this\nAgreement, the prevailing party, in addition to all other amounts, shall be entitled to reasonable attorney’s fee and court costs.\n12. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to the subject\nmatters addressed herein, and supersedes any and all prior and contemporaneous agreements (whether oral or written) between the\nparties regarding such subject matter. This Agreement may not be amended, modified or waived, in whole or in part, except in\nwriting signed by both parties. A party’s failure to require performance will not affect the right to require performance at any later\ntime.\n13. ASSIGNEES AND SUCCESSORS. Neither party may assign this Agreement without the other party’s written consent, except\nthat no consent is needed for an assignment of this Agreement in connection with a merger, acquisition, reorganization or sale of all\nor substantially all of a party’s assets. Any assignment in violation of this Agreement will be void. This Agreement shall benefit and\nbe binding upon the parties hereto and their respective, permitted assignees and successors.\n14. COUNTERPARTS. This Agreement may be executed by facsimile and/or in counterparts.\nIN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the date set forth above.\nCafePress Inc.\nDistrict Photo, Inc.\n/s/ Ekumene M. Lysonge\n/s/ Kurt Sturn\nSignature\nSignature\nEkumene M. Lysonge\nKurt Sturn\nName (please print)\nName (please print)\nVice President & General Counsel\nDirector\nTitle (please print)\nTitle (please print)
+64ee806eb8c3db587c89b4215fac31da.pdf	effective_date jurisdiction party	Exhibit (10)MM\nNON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nThis Non-Competition, Non-Solicitation and Confidentiality Agreement (referred to as the\n“Agreement”), is made by and between Target Corporation, a Minnesota corporation, and Target\nEnterprise, Inc., a subsidiary of Target Corporation (“Target Enterprise”), their predecessors, successors,\nparents, subsidiaries, affiliates, joint venture partners, shareholders, officers, and divisions (collectively\nreferred to as “Target”) and Tina Tyler, an employee of Target Enterprise (“Ms. Tyler”). Ms. Tyler and\nTarget are collectively referred to as “the parties” throughout this Agreement.\nWHEREAS, Ms. Tyler has been a key Target executive, and has therefore been granted access to\nTarget’s critical confidential business information, been positioned as a prominent Target representative\nidentified with its good will within the retail industry and corporate community, and developed strong\nrelationships with other Target employees; and\nWHEREAS, in order to protect Target’s critical confidential business information and good will\nfrom use for the benefit of its competitors and to protect its employees from solicitation, and in addition to\nany benefits or compensation she might otherwise receive from Target under any policy, program or\nagreement, Target wishes to provide Ms. Tyler with supplemental compensation in return for Ms. Tyler\nagreeing further not to compete with Target both during and after her employment, solicit Target\nemployees, and disclose Target confidential information; and\nWHEREAS, Ms. Tyler wishes to accept that supplemental compensation in return for her\nacceptance of the terms of this Agreement.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements\ncontained herein and other good and valuable consideration, the receipt and sufficiency of which is\nhereby acknowledged, Target and Ms. Tyler agree as follows:\n1. Consideration. In exchange for entering into this Agreement, Target agrees to pay Ms. Tyler the\ntotal amount of Three Million Dollars ($3,000,000) (the “Consideration”). Target will pay this\namount, less applicable withholdings as determined by Target, as follows: (1) in one increment of\nOne Million Dollars ($1,000,000) paid on or about January 13, 2017, (2) in one increment of One\nMillion Dollars ($1,000,000) paid on or about January 12, 2018, and (3) in one increment of One\nMillion Dollars ($1,000,000) paid on or about January 11, 2019.\n2. Target Employment. Nothing in this Agreement alters the nature, status or termination of Ms.\nTyler’s employment with Target.\n3. Ms. Tyler’s Covenant. In consideration of this Agreement, and in recognition of the facts that, as a\nresult of her employment with Target, Ms. Tyler has had access to and gained knowledge of\nconfidential and/or proprietary information or trade secrets pertaining to Target, has been identified\nwith its good will within the retail industry and corporate community, has developed strong\nrelationships with other Target employees whom Target wishes to retain, and that Target has\nexpended time, resources and money to obtain or develop these protectable interests, all of which\nhave significant value to Target, Ms. Tyler agrees for the benefit of Target, and as a material\ncondition to her receipt of the consideration described in Paragraph 1, as follows:\n1\na. Non-Competition. Ms. Tyler will not, during her employment and for a period of three (3)\nyears following the date of her termination from Target, perform services directly or\nindirectly (including as an employee, independent contractor, consultant, officer, director,\nor similar relationship), to Amazon.com, Inc.; Best Buy Co., Inc.; Costco Wholesale\nCorporation; CVS Health Corporation; Dollar General Corporation; The Gap, Inc.; The\nHome Depot, Inc.; J.C. Penney Company, Inc.; Kohl’s Corporation; The Kroger Co.;\nLowe’s Companies; Macy’s, Inc.; Publix Super Markets, Inc.; Rite Aid Corporation;\nSafeway Inc.; Sears Holdings Corporation; Staples, Inc.; The TJX Companies, Inc.;\nWalgreens Boots Alliance, Inc.; and Wal-Mart Stores, Inc.; or any parent, subsidiary,\ndivision, or affiliate of any such company (examples of affiliates include entities under\ncommon control, joint venture partners and e-commerce affiliates) (“Competitive Entities”).\nMs. Tyler expressly agrees that due to the nature of the confidential and/or proprietary\ninformation to which she has had access, and her position as a representative identified\nwith the company’s good will while a Target employee, the three (3) year world-wide\nrestriction on her ability to work for the Competitive Entities set forth above is reasonable\nand appropriate. Restrictions on Ms. Tyler’s ability to work for the entities set forth above\nmay be modified or waived at any time at the discretion of Brian Cornell, or the then-acting\nChief Executive Officer, in accordance with the procedure described in Paragraph 8. Any\nsuch waiver or modification must be made in writing.\nb. Non-Solicitation. Ms. Tyler will not, during her employment and for a period of three (3)\nyears following the date of her termination from Target, recruit, solicit or entice, directly or\nindirectly, for employment or performance of services, any employee of Target or any of its\naffiliated companies, unless Ms. Tyler has a written agreement signed by the Executive\nVice President of Human Resources, in accordance with the procedure described in\nParagraph 8, allowing Ms. Tyler to recruit persons named in that agreement.\nc. Confidentiality.\n(i) Ms.Tyler acknowledges and agrees that confidential information of Target and any of its\naffiliates is a valuable, special and unique asset. Such confidential information includes\nwithout limitation:\n(A)employee data and information (including, but not limited to, personnel decisions\nrelating to employees and applicants), and\n(B)present, past and future strategies, plans, and proposals (including but not limited\nto, customer, marketing, merchandising, sourcing, store operations, technology,\nassets protection, distribution, benefits and compensation strategies, plans and\nproposals), and\n(C)financial information, and\n2\n(D)present, past and future personnel and labor relations strategies, plans, practices,\npolicies, training programs and goals.\n(ii) Ms.Tyler will not, during or after the date of her termination from Target, use or disclose\nor cause or permit to be used or disclosed any such information or any other information\nTarget treats as confidential, to any person, firm, corporation, association or other entity\nfor any reason or purpose whatsoever. For avoidance of doubt, nothing in this\nAgreement shall prohibit Ms. Tyler from communicating with a government agency,\nregulator or legal authority concerning any possible violations of federal or state law or\nregulation; however, Ms. Tyler is not authorized to share communications covered and\nprotected from disclosure by Target’s attorney-client privilege.\nd. Consultation and Cooperation. Following the date of her termination from Target, Target may\nrequest that Ms. Tyler consult or cooperate (including, without limitation, providing truthful\ninformation to Target or serving as a witness or testifying at Target’s request without\nsubpoena), and Ms. Tyler agrees to be available at mutually agreeable times to perform such\nduties and provide such cooperation in connection with the various business and legal\nmatters in which Ms. Tyler was involved or of which Ms. Tyler has knowledge as result of her\nemployment with Target. In so consulting or cooperating, Ms. Tyler shall be reimbursed her\nreasonable out-of-pocket expenses.\ne. Remedies for Breach of These Covenants.\n(i) Ms.Tyler acknowledges that any breach of the covenants in Paragraph 3 will cause\nirreparable harm to Target for which money damages could not reasonably or\nadequately compensate Target. Accordingly, Target shall be entitled to seek all\navailable forms of injunctive relief (whether temporary, preliminary, or permanent) to\nenforce the covenant, in addition to repayment of any consideration provided hereunder\nby Target to the date of breach, damages recoverable by law and all other available\nremedies. Ms. Tyler consents to the issuance of injunctive relief without the necessity of\nTarget posting a bond or, if a court requires a bond to be posted, with a bond of no\ngreater than Five Hundred Dollars ($500) in principal amount.\n(ii) In addition to any other remedies available to Target, in the event Ms. Tyler breaches\nany of her obligations under Paragraphs 3.a ., b., c., or d. of this Agreement, then Target\n(A) will be relieved of all liability and obligation to make any further payments under this\nAgreement, and (B) may demand the return of any payments previously paid to Ms.\nTyler under this Agreement.\n4. Extension of Covenants. Ms. Tyler agrees that if she violates any of the covenants in Paragraph 3,\nthe restrictions therein shall be extended for the amount of time during which a court determines\nthat she was in violation of that Paragraph.\n5. Enforceability. If any one or more of the provisions of this Agreement is held invalid, illegal, or\nunenforceable in any respect, such provision shall be severable, and the\n3\nvalidity, legality, and enforceability of the remaining provisions contained in this Agreement will not\nin any way be affected or impaired thereby. If any restriction in this Agreement is deemed by a\ncourt to be overbroad, Ms. Tyler and Target expressly authorize the court to impose the broadest\nlimitations permissible under the law.\n6. Assignment. The parties agree that the rights and obligations under this Agreement shall inure to\nand be binding on Target, and its successors and assigns, but the rights and obligations of Ms.\nTyler under this Agreement are personal and may not be assigned to any other person or entity.\nHowever, if Ms. Tyler dies before all the Consideration is paid, the remaining Consideration will be\npaid to her estate.\n7. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall\nbe deemed an original, but all of which shall constitute one and the same instrument.\n8. Amendment; Waivers. This Agreement may not be modified, amended, waived or discharged in\nany manner except by an instrument in writing signed by both parties hereto. The execution of any\nsuch modification, amendment or waiver shall be in the sole discretion of an authorized officer of\nTarget. The waiver by either party of compliance with any provision of this Agreement by the other\nparty shall not operate or be construed as a waiver of any other provision of this Agreement, or of\nany subsequent breach by such party of a provision of this Agreement.\n9. Entire Agreement. This Agreement embodies the entire agreement and understanding between\nTarget and Ms. Tyler pertaining to the payment of the consideration described in Paragraph 1\nhereof. For the sake of clarity, Target and Ms. Tyler have simultaneously executed an Income\nContinuance Agreement which contains parallel covenants. The Income Continuance Agreement is\nsupported by independent consideration and is intended to operate separately and independently\nof this Agreement.\n10. Code Section 409A. For all purposes under Section 409A of the Internal Revenue Code (“Section\n409A), each payment under this Agreement shall be treated as a separate payment. It is the\nintention of the parties that the January 13, 2017, payment be exempt from the requirements of\nSection 409A because it is a short term deferral under Treas. Reg. Sec. 1.409A-1(b)(4), and that\nthe balance of the payments, are intended to comply both in form and operation with the\nrequirements of Section 409A, and this Agreement will be construed and administered in a manner\nconsistent with such intent. Target reserves the right to adopt such rules, regulations or procedures\nthat are deemed necessary or appropriate to comply with the requirements of Section 409A. Any\npayments that are subject to the requirements of Section 409A may be accelerated or delayed only\nif and to the extent otherwise permitted under Section 409A.\n11. Reporting. Until all Consideration is paid pursuant to this Agreement, Ms. Tyler shall promptly\ninform Target of the name and business address of each business or person for which Ms. Tyler\nperforms services, and shall provide a summary description of the nature and principal business\nlocations of each such business or person. Ms. Tyler shall also provide her title, principal duties,\naddress and phone number. Significant changes to employment, services, duties or location must\nbe promptly reported. Such\n4\nreports shall be provided to the Executive Vice President, Human Resources, in accordance with\nthe procedure described in Paragraph 8.\n12. Governing Law. This Agreement will be construed and interpreted in accordance with the laws of\nthe State of Minnesota as interpreted by Minnesota state and federal courts.\n13. Jurisdiction. Any action or proceeding seeking to enforce or interpret any provision of, or based\nupon any right arising out of, this Agreement may be brought against any of the parties in the\nfederal or state courts located in Minneapolis, Minnesota, and each of the parties consents to the\njurisdiction of such courts (and of the appropriate appellate courts) in any such action or\nproceeding, and waives any objection to venue therein.\n14. Effective Date. This Agreement shall be effective on the earliest date it is executed by all parties\nhereto (the “Effective Date”).\n15. Authorization. Target affirms that this Agreement is duly authorized by all necessary parties.\n5\nDated: January 19, 2016\n/s/ Tina Tyler\nTINA TYLER\nDated: January 27, 2016\nTARGET CORPORATION\nBy: /s/ Jodee Kozlak\nIts: CHRO\nDated: January 27, 2016\nTARGET ENTERPRISE, INC.\nBy: /s/ Jodee Kozlak\nIts: CHRO\n6	Exhibit (10)MM\nNON-COMPETITIONI NON-SOLIC ITATION\nAND CONFIDENTIALITY AGREEMENT\nThis Non-Competition, Non-Solicitation and Confidentiality Agreement (referred to as the\n“Agreement”), is made by and between TargetCorporation, a Minnesota corporation, and Target\nE nterprise, Inc., a subsidiary ofTarget Corporation ('Target E nterprise”), their predecessors, successors,\nparents, subsidiaries, affiliates, jointventure partners, shareholders, officers, and divisions (collectively\nreferred to as 'Target”) and Tina Tyler, an employee ofTarget Enterprise (“Ms. Tyler”). Ms. Tyler and\nTarget are collectively referred to as “the pa rties” throughout this Agreement.\nWHEREAS, Ms. Tyler has been a key Target executive, and has therefore been granted access to\nTarget's critical confidential business information, been positioned as a prominentTarget representative\nidentified with its good will within the retail industry and corporate community, and developed strong\nrelationships with other Target employees; and\nWHEREAS, in orderto protectTarget’s critical confidential business information and good will\nfrom use for the benefit of its competitors and to protect its employees from solicitation, and in addition to\nany benefits or compensation she might otherwise receive from Target under any policy, program or\nagreement, Targetwishes to provide Ms. Tyler with supplemental compensation in return for Ms. Tyler\nagreeing further notto compete with Target both during and after her employment, solicitTarget\nemployees, and disclose Target confidential information; and\nWHEREAS, Ms. Tyler wishes to accept thatsupplemental compensation in return for her\nacceptance ofthe terms of this Agreement.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements\ncontained herein and other good and valuable consideration, the receipt and sufficiency ofwhich is\nhereby acknowledged, Targetand Ms. Tyler agree as follows:\n1. Consideration. In exchange for entering into this Agreement, Target agrees to pay Ms. Tyler the\ntotal amount ofThree Million Dollars ($3,000,000) (the “Consideration”). Targetwill pay this\namount, less applicable withholdings as determined by Target, as follows: (1) in one increment of\nOne Million Dollars ($1,000,000) paid on or about) anuary 13, 2017, (2) in one increment ofOne\nMillion Dollars ($1,000,000) paid on or about) anuary 12, 2018, and (3) in one increment ofOne\nMillion Dollars ($1,000,000) paid on or about) anuary 11,2019.\n2. Target Employment. Nothing in this Agreementalters the nature, status ortermination of Ms.\nTyler's employment with Target.\n3. Ms. Tyler's Covenant. In consideration of this Agreement, and in recognition ofthe facts that, as a\nresult of her employment with Target, Ms. Tyler has had access to and gained knowledge of\nconfidential and/or proprietary information or trade secrets pertaining to Target, has been identified\nwith its good will within the retail industry and corporate community, has developed strong\nrelationships with other Targetemployees whom Targetwishes to retain, and thatTarget has\nexpended time, resources and money to obtain or develop these protectable interests, all ofwhich\nhave significant value to Target, Ms. Tyler agrees forthe benefit ofTarget, and as a material\ncondition to her receipt of the consideration described in Paragraph 1, as follows:\na. Non-Competition. Ms. Tyler will not, during her employmentand fora period of three (3)\nyears following the date of her termination from Target, perform services directly or\nindirectly (including as an employee, independent contractor, consultant, officer, director,\nor similar relationship), to Amazon.com, lnc.; Best Buy Co., lnc.; Costco Wholesale\nCorporation; CVS Health Corporation; DollarGeneral Corporation; The Gap, lnc.; The\nHome Depot, lnc.; J .C. Penney Company, lnc.; Kohl's Corporation; The KrogerCo.;\nLowe’s Companies; Macy’s, lnc.; Publix Super Markets, lnc.; Rite Aid Corporation;\nSafeway lnc.; Sears Holdings Corporation; Staples, lnc.; The T) X Companies, lnc.;\nWalgreens Boots Alliance, lnc.; and Wal-Mart Stores, lnc.; or any parent, subsidiary,\ndivision, or affiliate of any such company (examples ofaffiliates include entities under\ncommon control, joint venture partners and e-commerce affiliates) (“Competitive Entities”).\nMs. Tyler expressly agrees that due to the nature of the confidential and/or proprietary\ninformation to which she has had access, and her position as a representative identified\nwith the company's good will while a Target employee, the three (3) year world-wide\nrestriction on her ability to work forthe Competitive Entities set forth above is reasonable\nand appropriate. Restrictions on Ms. Tyler's ability to work forthe entities setforth above\nmay be modified or waived at any time atthe discretion of Brian Cornell, orthe then-acting\nChief Executive Officer, in accordance with the procedure described in Paragraph 8. Any\nsuch waiver or modification must be made in writing.\nb. Non-Solicitation. Ms. Tyler will not, during her employmentand fora period of three (3)\nyears following the date of her termination from Target, recruit, solicit or entice, directly or\nindirectly, for employment or performance of services, any employee of Target or any of its\naffiliated companies, unless Ms. Tyler has a written agreementsigned by the Executive\nVice President of Human Resources, in accordance with the procedure described in\nParagraph 8, allowing Ms. Tylerto recruit persons named in thatagreement.\nc. Confidentiality.\n(i) Ms.Tyler acknowledges and agrees that confidential information ofTarget and any of its\naffiliates is a valuable, special and unique asset. Such confidential information includes\nwithout limitation:\n(employee data and information (including, but not limited to, personnel decisions\nrelating to employees and applicants), and\n(lpfesent, pastand future strategies, plans, and proposals (including but not limited\nto, customer, marketing, merchandising, sourcing, store operations, technology,\nassets protection, distribution, benefits and compensation strategies, plans and\nproposals), and\n(financial information, and\n(l'pfesent, pastand future personnel and labor relations strategies, plans, practices,\npolicies, training programs and goals.\n(ii) Ms.Tyler will not, during or afterthe date of hertermination from Target, use or disclose\nor cause or permit to be used or disclosed any such information or any other information\nTargettreats as confidential, to any person, firm, corporation, association or other entity\nfor any reason or purpose whatsoever. For avoidance ofdoubt, nothing in this\nAgreement shall prohibit Ms. Tyler from communicating with a governmentagency,\nregulator or legal authority concerning any possible violations of federal or state law or\nregulation; however, Ms. Tyler is notauthorized to share communications covered and\nprotected from disclosure by Target’s attorney-client privilege.\nd. Consultation and Cooperation. Following the date of her termination from Target, Target may\nrequestthat Ms. Tyler consult or cooperate (including, without limitation, providing truthful\ninformation to Target or serving as a witness ortestifying atTarget's requestwithout\nsubpoena), and Ms. Tyler agrees to be available at mutually agreeable times to perform such\nduties and provide such cooperation in connection with the various business and legal\nmatters in which Ms. Tyler was involved or ofwhich Ms. Tyler has knowledge as result of her\nemployment with Target. In so consulting or cooperating, Ms. Tyler shall be reimbursed her\nreasonable out-of-pocket expenses.\ne. Remedies for Breach ofThese Covenants.\n(i) Ms.Tyler acknowledges that any breach ofthe covenants in Paragraph 3 will cause\nirreparable harm to Targetfor which money damages could not reasonably or\nadequately compensate Target. Accordingly, Target shall be entitled to seek all\navailable forms of injunctive relief (whethertemporary, preliminary, or permanent) to\nenforce the covenant, in addition to repayment of any consideration provided hereunder\nby Targetto the date of breach, damages recoverable by law and all other available\nremedies. Ms. Tyler consents to the issuance of injunctive relief withoutthe necessity of\nTarget posting a bond or, ifa court requires a bond to be posted, with a bond of no\ngreaterthan Five Hundred Dollars ($500) in principal amount.\n(ii) In addition to any other remedies available to Target, in the event Ms. Tyler breaches\nany of her obligations under Paragraphs 3.a., b., c., or d. of this Agreement, then Target\n(A) will be relieved ofall liability and obligation to make any further payments underthis\nAgreement, and (B) may demand the return ofany payments previously paid to Ms.\nTyler under this Agreement.\n4. Extension ofCovenants. Ms. Tyler agrees that if she violates any of the covenants in Paragraph 3,\nthe restrictions therein shall be extended forthe amount oftime during which a court determines\nthatshe was in violation ofthat Paragraph.\n5. Enforceabilitv. Ifany one or more of the provisions of this Agreement is held invalid, illegal, or\nunenforceable in any respect, such provision shall be severable, and the\n10. validity, legality, and enforceability of the remaining provisions contained in this Agreement will not\nin any way be affected or impaired thereby. lfany restriction in this Agreement is deemed by a\ncourtto be overbroad, Ms. Tyler and Target expressly authorize the courtto impose the broadest\nlimitations permissible underthe law.\nAssignment. The parties agree thatthe rights and obligations underthis Agreementshall inure to\nand be binding on Target, and its successors and assigns, butthe rights and obligations of Ms.\nTyler underthis Agreementare personal and may not be assigned to any other person or entity.\nHowever, if Ms. Tyler dies before all the Consideration is paid, the remaining Consideration will be\npaid to her estate.\nCounterparts. This Agreement may be executed in any number of counterparts, each ofwhich shall\nbe deemed an original, but all ofwhich shall constitute one and the same instrument.\nAmendment; Waivers. This Agreement may not be modified, amended, waived or discharged in\nany manner except by an instrument in writing signed by both parties hereto. The execution of any\nsuch modification, amendmentor waiver shall be in the sole discretion of an authorized officer of\nTarget. The waiver by either parw of compliance with any provision ofthis Agreement by the other\nparw shall not operate or be construed as a waiver of any other provision ofthis Agreement, or of\nany subsequent breach by such parw ofa provision ofthis Agreement.\nEntire Agreement. This Agreementembodies the entire agreement and understanding between\nTargetand Ms. Tyler pertaining to the payment of the consideration described in Paragraph 1\nhereof. Forthe sake of clarity, Targetand Ms. Tyler have simultaneously executed an Income\nContinuance Agreementwhich contains parallel covenants. The Income Continuance Agreement is\nsupported by independent consideration and is intended to operate separately and independently\nofthis Agreement.\nCode Section 409A. For all purposes under Section 409A of the Internal Revenue Code (“Section\n409A), each payment underthis Agreementshall be treated as a separate payment. It is the\nintention of the parties thatthe J anuary 13, 2017, payment be exempt from the requirements of\nSection 409A because it is a shortterm deferral under Treas. Reg. Sec. 1.409A-1(b)(4), and that\nthe balance of the payments, are intended to comply both in form and operation with the\nrequirements of Section 409A, and this Agreement will be construed and administered in a manner\nconsistentwith such intent. Target reserves the rightto adoptsuch rules, regulations or procedures\nthatare deemed necessary or appropriate to comply with the requirements of Section 409A. Any\npayments thatare subjectto the requirements of Section 409A may be accelerated or delayed only\nifand to the extent otherwise permitted under Section 409A.\n11. Reporting. Until all Consideration is paid pursuantto this Agreement, Ms. Tyler shall promptly\ninform Target of the name and business address of each business or person for which Ms. Tyler\nperforms services, and shall provide a summary description of the nature and principal business\nlocations ofeach such business or person. Ms. Tyler shall also provide hertitle, principal duties,\naddress and phone number. Significantchanges to employment, services, duties or location must\nbe promptly reported. Such\n12. 13. 14. 15. reports shall be provided to the Executive Vice President, Human Resources, in accordance with\nthe procedure described in Paragraph 8.\nGoverning Law. This Agreement will be construed and interpreted in accordance with the laws of\nthe State of Minnesota as interpreted by Minnesota state and federal courts.\n|urisdiction. Any action or proceeding seeking to enforce or interpret any provision of, or based\nupon any rightarising out of, this Agreement may be brought against any of the parties in the\nfederal or state courts located in Minneapolis, Minnesota, and each of the parties consents to the\njurisdiction of such courts (and of the appropriate appellate courts) in any such action or\nproceeding, and waives any objection to venue therein.\nEffective Date. This Agreement shall be effective on the earliest date it is executed by all parties\nhereto (the “E ffective Date”).\nAuthorization. Target affirms that this Agreement is duly authorized by all necessary parties.\n/s/Tina Tyler\nDatedzjanuary 19, 2016\nTINA TYLER\nDated:January27,2016 TARGET CORPORATION\nBy: /s/ I odee Kozlak\nIts: CHRO\nDated:January27,2016 TARGET ENTERPRISE, INC.\nBy: /s/ | odee Kozlak\nIts: CHRO	Exhibit (10)MM\nNON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nThis Non-Competition, on-Solicitation and Confidentiality Agreement (referred to as the\n"Agreement"), is made by and between Target Corporation, a Minnesota corporation, and Target\nEnterprise, Inc., a subsidiary of Target Corporation ('Target E nterprise"), their predecessors, successors,\nparents, subsidiaries, affiliates, joint venture partners, shareholders, officers, and divisions (collectively\nreferred to as "Target") and Tina Tyler, an employee of Target nterprise ("Ms. Tyler"). Ms. Tyler and\nTarget are collectively referred to as "the parties" throughout this Agreement\nWHEREAS, Ms. Tyler has been a key Target executive, and has therefore been granted access to\nTarget's critical confidential business information, been positioned as a prominent Target representative\nidentified with its good will within the retail industry and corporate community, and developed strong\nrelationships with other Target employees; and\nWHEREAS, in order to protect Target's critica confidential business information and good will\nfrom use for the benefit of its competitors and to protect its employees from solicitation, and in addition to\nany benefits or compensation she might otherwise receive from Target under any policy, program or\nagreement, Target wishes to provide Ms. Tyler with supplemental compensation in return for Ms. Tyler\nagreeing further not to compete with Target both during and after her employment, solicit Target\nemployees, and disclose Target confidential information; and\nWHEREAS, Ms. Tyler wishes to accept that supplementa compensation in return for her\nacceptance of the terms of this Agreement\nNOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements\ncontained herein and other good and valuable consideration, the receipt and sufficiency of which is\nhereby acknowledged, Target and Ms. Tyler agree as follows:\n1.\nConsideration. In exchange for entering into this Agreement, Target agrees to pay Ms. Tyler the\ntotal amount of Three Million Dollars ($3,000,000) (the "Consideration"). Target will pay this\namount, less applicable withholdings as determined by Target, as follows: (1) in one increment of\nOne Million Dollars ($1,000,000) paid on or about anuary 13, 2017, (2) in one increment of One\nMillion Dollars ($1,000,000) paid on or about anuary 12, 2018, and (3) in one increment of One\nMillion Dollars ($1,000,000) paid on or about anuary 11, 2019.\n2.\nTarget mployment. Nothing in this Agreement alters the nature, status or termination of Ms.\nTyler's employment with Target.\n3.\nMs. Tyler's Covenant. In consideration of this Agreement, and in recognition of the facts that, as a\nresult of her employment with Target, Ms. Tyler has had access to and gained knowledge of\nconfidential and/or proprietary information or trade secrets pertaining to Target, has been identified\nwith its good will within the retai industry and corporate community, has developed strong\nrelationships with other Target employees whom Target wishes to retain, and that Target has\nexpended time, resources and money to obtain or develop these protectable interests, all of which\nhave significant value to Target, Ms. Tyler agrees for the benefit of Target, and as a material\ncondition to her receipt of the consideration described in Paragraph 1, as follows:\nm\na.\nNon-Competition. Ms. Tyler will not, during her employment and for a period of three (3)\nyears following the date of her termination from Target, perform services directly or\nindirectly (including as an employee, independent contractor, consultant, officer, director,\nor similar relationship), to Amazon.com, Inc.; Best Buy Co., Inc.; Costco Wholesale\nCorporation; CVS Health Corporation; Dollar General Corporation; The Gap, Inc.; The\nHome Depot, Inc.; .C. Penney Company, Inc.; Kohl's Corporation; The Kroger Co.;\nLowe's Companies; Macy's, Inc.; Publix Super Markets, Inc.; R ite Aid Corporation;\nSafeway Inc.; Sears Holdings Corporation; Staples, Inc.; The TJ Companies, Inc.;\nWalgreens Boots Alliance, Inc.; and Wal-Mart Stores, Inc.; or any parent, subsidiary,\ndivision, or affiliate of any such company (examples of affiliates include entities under\ncommon control, joint venture partners and e-commerce affiliates) ("Competitive Entities").\nMs. Tyler expressly agrees that due to the nature of the confidential and/or proprietary\ninformation to which she has had access, and her position as a representative identified\nwith the company's good will while a Target employee, the three (3) year world-wide\nrestriction on her ability to work for the Competitive Entities set forth above is reasonable\nand appropriate. Restrictions on Ms. Tyler's ability to work for the entities set forth above\nmay be modified or waived at any time at the discretion of Brian Cornell, or the then-acting\nChief Executive Officer, in accordance with the procedure described in aragraph 8. Any\nsuch waiver or modification must be made in writing.\nb.\nlon-Solicitation. Ms. Tyler will not, during her employment and for a period of three (3)\nyears following the date of her termination from Target, recruit, solicit or entice, directly or\nindirectly, for employment or performance of services, any employee of Target or any of its\naffiliated companies, unless Ms. Tyler has a written agreement signed by the Executive\nVice resident of Human Resources, in accordance with the procedure described in\nParagraph 8, allowing Ms. Tyler to recruit persons named in that agreement.\nc. Confidentiality.\n(i) Ms. S.Tyler acknowledges and agrees that confidentia information of Target and any of its\naffiliates is a valuable, special and unique asset. Such confidential information includes\nwithout limitation:\n(Employee data and information (including, but not limited to, personne decisions\nrelating to employees and applicants), and\n(Present, past and future strategies, plans, and proposals (including but not limited\nto, customer, marketing, merchandising, sourcing, store operations, technology,\nassets protection, distribution, benefits and compensation strategies, plans and\nproposals), and\n(financial information, and\nN\n(present, past and future personnel and labor relations strategies, plans, practices,\npolicies, training programs and goals.\n(ii) Ms. .Tyler will not, during or after the date of her termination from Target, use or disclose\nor cause or permit to be used or disclosed any such information or any other information\nTarget treats as confidential, to any person, firm, corporation, association or other entity\nfor any reason or purpose whatsoever. For avoidance of doubt, nothing in this\nAgreement shall prohibit Ms. Tyler from communicating with a government agency,\nregulator or legal authority concerning any possible violations of federa or state law or\nregulation; however, Ms. Tyler is not authorized to share communications covered and\nprotected from disclosure by Target's attorney-client privilege.\nd. Consultation and Cooperation Following the date of her termination from Target, Target may\nrequest that Ms. Tyler consult or cooperate (including, without limitation, providing truthful\ninformation to Target or serving as a witness or testifying at Target's request without\nsubpoena), and Ms. Tyler agrees to be available at mutually agreeable times to perform such\nduties and provide such cooperation in connection with the various business and legal\nmatters in which Ms. Tyler was involved or of which Ms. Tyler has knowledge as result of her\nemployment with Target. In so consulting or cooperating, Ms. Tyler shall be reimbursed her\nreasonable out-of-pocket expenses.\ne.\nRemedies for Breach of These Covenants.\n(i) Ms. S.Tyler acknowledges that any breach of the covenants in Paragraph 3 will cause\nirreparable harm to Target for which money damages could not reasonably or\nadequately compensate Target Accordingly, Target shall be entitled to seek all\navailable forms of injunctive relief (whether temporary, preliminary, or permanent) to\nenforce the covenant, in addition to repayment of any consideration provided hereunder\nby Target to the date of breach, damages recoverable by law and all other available\nremedies. Ms. Tyler consents to the issuance of injunctive relief without the necessity of\nTarget posting a bond or, if a court requires a bond to be posted, with a bond of no\ngreater than Five Hundred Dollars ($500) in principal amount.\n(ii) In addition to any other remedies available to Target, in the event Ms. Tyler breaches\nany of her obligations under Paragraphs 3.a., b., C., or d. of this Agreement, then Target\n(A) will be relieved of all liability and obligation to make any further payments under this\nAgreement, and (B) may demand the return of any payments previously paid to Ms.\nTyler under this Agreement.\n4.\nExtension of Covenants. Ms. Tyler agrees that if she violates any of the covenants in Paragraph 3,\nthe restrictions therein shall be extended for the amount of time during which a court determines\nthat she was in violation of that Paragraph.\n5.\nEnforceability If any one or more of the provisions of this Agreement is held invalid, illegal, or\nunenforceable in any respect, such provision shall be severable, and the\n3\nvalidity, legality, and enforceability of the remaining provisions contained in this Agreement will not\nin any way be affected or impaired thereby. If any restriction in this Agreement is deemed by a\ncourt to be overbroad, Ms. Tyler and Target expressly authorize the court to impose the broadest\nlimitations permissible under the law.\n6.\nAssignment. The parties agree that the rights and obligations under this Agreement shall inure to\nand be binding on Target, and its successors and assigns but the rights and obligations of Ms.\nTyler\nunder\nthis\nAgreement\nare\npersonal\nand\nmay\nnot\nbe\nassigned\nto\nany\nother\nperson\nor\nentity.\nHowever, if Ms. Tyler dies before all the Consideration is paid, the remaining Consideration will be\npaid to her estate.\n7.\nCounterparts. This Agreement may be executed in any number of counterparts, each of which shal\nbe deemed an original, but all of which shall constitute one and the same instrument.\n8.\nAmendment; Waivers. This Agreement may not be modified, amended, waived or discharged in\nany manner except by an instrument in writing signed by both parties hereto. The execution of any\nsuch modification, amendment or waiver shall be in the sole discretion of an authorized officer of\nTarget. The waiver by either party of compliance with any provision of this Agreement by the other\nparty shall not operate or be construed as a waiver of any other provision of this Agreement, or of\nany subsequent breach by such party of a provision of this Agreement.\n9.\nEntire Agreement. This Agreement embodies the entire agreement and understanding between\nTarget and Ms. Tyler pertaining to the payment of the consideration described in aragraph 1\nhereof. For the sake of clarity, Target and Ms. Tyler have simultaneously executed an Income\nContinuance Agreement which contains parallel covenants. The Income Continuance Agreement is\nsupported by independent consideration and is intended to operate separately and independently\nof this Agreement.\n10. Code Section 409A. For all purposes under Section 409A of the Internal evenue Code ("Section\n409A), each payment under this Agreement shall be treated as a separate payment. It is the\nintention of the parties that the J anuary 13, 2017, payment be exempt from the requirements of\nSection 409A because it is a short term deferral under Treas. Reg. Sec. 1.409A-1(b)(4) and that\nthe balance of the payments, are intended to comply both in form and operation with the\nrequirements of Section 409A, and this Agreement will be construed and administered in a manner\nconsistent with such intent. Target reserves the right to adopt such rules, regulations or procedures\nthat are deemed necessary or appropriate to comply with the requirements of Section 409A. Any\npayments that are subject to the requirements of Section 409A may be accelerated or delayed only\nif and to the extent otherwise permitted under Section 409A.\n11.\nReporting. Until all Consideration is paid pursuant to this Agreement, Ms. Tyler shall promptly\ninform Target of the name and business address of each business or person for which Ms. Tyler\nperforms services, and shall provide a summary description of the nature and principa business\nlocations of each such business or person. Ms. Tyler shall also provide her title, principal duties,\naddress and phone number. Significant changes to employment, services, duties or location must\nbe promptly reported. Such\n4\nreports shall be provided to the Executive Vice President, Human Resources, in accordance with\nthe procedure described in Paragraph 8.\n12.\nGoverning Law. This Agreement will be construed and interpreted in accordance with the laws of\nthe State of Minnesota as interpreted by Minnesota state and federal courts.\n13.\nJJI\nurisdiction. Any action or proceeding seeking to enforce or interpret any provision of, or based\nupon any right arising out of, this Agreement may be brought against any of the parties in the\nfederal or state courts located in Minneapolis, Minnesota, and each of the parties consents to the\njurisdiction of such courts (and of the appropriate appellate courts) in any such action or\nproceeding, and waives any objection to venue therein.\n14.\nE ffective Date. This Agreement shall be effective on the earliest date it is executed by all parties\nhereto (the Effective Date").\n15. Authorization. Target affirms that this Agreement is duly authorized by all necessary parties.\n5\n/s/ Tina Tyler\nDated: J anuary 19, 2016\nTINA TYLER\nDated: J anuary 27, 2016\nTARGET CORPORATION\nBy: /s/ odee Kozlak\nIts: CHRO\nDated: J anuary 27, 2016\nTARGET ENTERPRISE, INC.\nBy: /s/ odee Kozlak\nIts: CHRO\n6	Exhibit (10)MM\nNON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nThis Non-Competition, Non-Solicitation and Confidentiality Agreement (referred to as the\n“Agreement”), is made by and between Target Corporation, a Minnesota corporation, and Target\nEnterprise, Inc., a subsidiary of Target Corporation (“Target Enterprise”), their predecessors, successors,\nparents, subsidiaries, affiliates, joint venture partners, shareholders, officers, and divisions (collectively\nreferred to as “Target”) and Tina Tyler, an employee of Target Enterprise (“Ms. Tyler”). Ms. Tyler and\nTarget are collectively referred to as “the parties” throughout this Agreement.\nWHEREAS, Ms. Tyler has been a key Target executive, and has therefore been granted access to\nTarget’s critical confidential business information, been positioned as a prominent Target representative\nidentified with its good will within the retail industry and corporate community, and developed strong\nrelationships with other Target employees; and\nWHEREAS, in order to protect Target’s critical confidential business information and good will\nfrom use for the benefit of its competitors and to protect its employees from solicitation, and in addition to\nany benefits or compensation she might otherwise receive from Target under any policy, program or\nagreement, Target wishes to provide Ms. Tyler with supplemental compensation in return for Ms. Tyler\nagreeing further not to compete with Target both during and after her employment, solicit Target\nemployees, and disclose Target confidential information; and\nWHEREAS, Ms. Tyler wishes to accept that supplemental compensation in return for her\nacceptance of the terms of this Agreement.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements\ncontained herein and other good and valuable consideration, the receipt and sufficiency of which is\nhereby acknowledged, Target and Ms. Tyler agree as follows:\n1. Consideration. In exchange for entering into this Agreement, Target agrees to pay Ms. Tyler the\ntotal amount of Three Million Dollars ($3,000,000) (the “Consideration”). Target will pay this\namount, less applicable withholdings as determined by Target, as follows: (1) in one increment of\nOne Million Dollars ($1,000,000) paid on or about January 13, 2017, (2) in one increment of One\nMillion Dollars ($1,000,000) paid on or about January 12, 2018, and (3) in one increment of One\nMillion Dollars ($1,000,000) paid on or about January 11, 2019.\n2. Target Employment. Nothing in this Agreement alters the nature, status or termination of Ms.\nTyler’s employment with Target.\n3. Ms. Tyler’s Covenant. In consideration of this Agreement, and in recognition of the facts that, as a\nresult of her employment with Target, Ms. Tyler has had access to and gained knowledge of\nconfidential and/or proprietary information or trade secrets pertaining to Target, has been identified\nwith its good will within the retail industry and corporate community, has developed strong\nrelationships with other Target employees whom Target wishes to retain, and that Target has\nexpended time, resources and money to obtain or develop these protectable interests, all of which\nhave significant value to Target, Ms. Tyler agrees for the benefit of Target, and as a material\ncondition to her receipt of the consideration described in Paragraph 1, as follows:\n1\na. Non-Competition. Ms. Tyler will not, during her employment and for a period of three (3)\nyears following the date of her termination from Target, perform services directly or\nindirectly (including as an employee, independent contractor, consultant, officer, director,\nor similar relationship), to Amazon.com, Inc.; Best Buy Co., Inc.; Costco Wholesale\nCorporation; CVS Health Corporation; Dollar General Corporation; The Gap, Inc.; The\nHome Depot, Inc.; J.C. Penney Company, Inc.; Kohl’s Corporation; The Kroger Co.;\nLowe’s Companies; Macy’s, Inc.; Publix Super Markets, Inc.; Rite Aid Corporation;\nSafeway Inc.; Sears Holdings Corporation; Staples, Inc.; The TJX Companies, Inc.;\nWalgreens Boots Alliance, Inc.; and Wal-Mart Stores, Inc.; or any parent, subsidiary,\ndivision, or affiliate of any such company (examples of affiliates include entities under\ncommon control, joint venture partners and e-commerce affiliates) (“Competitive Entities”).\nMs. Tyler expressly agrees that due to the nature of the confidential and/or proprietary\ninformation to which she has had access, and her position as a representative identified\nwith the company’s good will while a Target employee, the three (3) year world-wide\nrestriction on her ability to work for the Competitive Entities set forth above is reasonable\nand appropriate. Restrictions on Ms. Tyler’s ability to work for the entities set forth above\nmay be modified or waived at any time at the discretion of Brian Cornell, or the then-acting\nChief Executive Officer, in accordance with the procedure described in Paragraph 8. Any\nsuch waiver or modification must be made in writing.\nb. Non-Solicitation. Ms. Tyler will not, during her employment and for a period of three (3)\nyears following the date of her termination from Target, recruit, solicit or entice, directly or\nindirectly, for employment or performance of services, any employee of Target or any of its\naffiliated companies, unless Ms. Tyler has a written agreement signed by the Executive\nVice President of Human Resources, in accordance with the procedure described in\nParagraph 8, allowing Ms. Tyler to recruit persons named in that agreement.\nc. Confidentiality.\n(i) Ms.Tyler acknowledges and agrees that confidential information of Target and any of its\naffiliates is a valuable, special and unique asset. Such confidential information includes\nwithout limitation:\n(A)employee data and information (including, but not limited to, personnel decisions\nrelating to employees and applicants), and\n(B)present, past and future strategies, plans, and proposals (including but not limited\nto, customer, marketing, merchandising, sourcing, store operations, technology,\nassets protection, distribution, benefits and compensation strategies, plans and\nproposals), and\n(C)financial information, and\n2\n(D)present, past and future personnel and labor relations strategies, plans, practices,\npolicies, training programs and goals.\n(ii) Ms.Tyler will not, during or after the date of her termination from Target, use or disclose\nor cause or permit to be used or disclosed any such information or any other information\nTarget treats as confidential, to any person, firm, corporation, association or other entity\nfor any reason or purpose whatsoever. For avoidance of doubt, nothing in this\nAgreement shall prohibit Ms. Tyler from communicating with a government agency,\nregulator or legal authority concerning any possible violations of federal or state law or\nregulation; however, Ms. Tyler is not authorized to share communications covered and\nprotected from disclosure by Target’s attorney-client privilege.\nd. Consultation and Cooperation. Following the date of her termination from Target, Target may\nrequest that Ms. Tyler consult or cooperate (including, without limitation, providing truthful\ninformation to Target or serving as a witness or testifying at Target’s request without\nsubpoena), and Ms. Tyler agrees to be available at mutually agreeable times to perform such\nduties and provide such cooperation in connection with the various business and legal\nmatters in which Ms. Tyler was involved or of which Ms. Tyler has knowledge as result of her\nemployment with Target. In so consulting or cooperating, Ms. Tyler shall be reimbursed her\nreasonable out-of-pocket expenses.\ne. Remedies for Breach of These Covenants.\n(i) Ms.Tyler acknowledges that any breach of the covenants in Paragraph 3 will cause\nirreparable harm to Target for which money damages could not reasonably or\nadequately compensate Target. Accordingly, Target shall be entitled to seek all\navailable forms of injunctive relief (whether temporary, preliminary, or permanent) to\nenforce the covenant, in addition to repayment of any consideration provided hereunder\nby Target to the date of breach, damages recoverable by law and all other available\nremedies. Ms. Tyler consents to the issuance of injunctive relief without the necessity of\nTarget posting a bond or, if a court requires a bond to be posted, with a bond of no\ngreater than Five Hundred Dollars ($500) in principal amount.\n(ii) In addition to any other remedies available to Target, in the event Ms. Tyler breaches\nany of her obligations under Paragraphs 3.a ., b., c., or d. of this Agreement, then Target\n(A) will be relieved of all liability and obligation to make any further payments under this\nAgreement, and (B) may demand the return of any payments previously paid to Ms.\nTyler under this Agreement.\n4. Extension of Covenants. Ms. Tyler agrees that if she violates any of the covenants in Paragraph 3,\nthe restrictions therein shall be extended for the amount of time during which a court determines\nthat she was in violation of that Paragraph.\n5. Enforceability. If any one or more of the provisions of this Agreement is held invalid, illegal, or\nunenforceable in any respect, such provision shall be severable, and the\n3\nvalidity, legality, and enforceability of the remaining provisions contained in this Agreement will not\nin any way be affected or impaired thereby. If any restriction in this Agreement is deemed by a\ncourt to be overbroad, Ms. Tyler and Target expressly authorize the court to impose the broadest\nlimitations permissible under the law.\n6. Assignment. The parties agree that the rights and obligations under this Agreement shall inure to\nand be binding on Target, and its successors and assigns, but the rights and obligations of Ms.\nTyler under this Agreement are personal and may not be assigned to any other person or entity.\nHowever, if Ms. Tyler dies before all the Consideration is paid, the remaining Consideration will be\npaid to her estate.\n7. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall\nbe deemed an original, but all of which shall constitute one and the same instrument.\n8. Amendment; Waivers. This Agreement may not be modified, amended, waived or discharged in\nany manner except by an instrument in writing signed by both parties hereto. The execution of any\nsuch modification, amendment or waiver shall be in the sole discretion of an authorized officer of\nTarget. The waiver by either party of compliance with any provision of this Agreement by the other\nparty shall not operate or be construed as a waiver of any other provision of this Agreement, or of\nany subsequent breach by such party of a provision of this Agreement.\n9. Entire Agreement. This Agreement embodies the entire agreement and understanding between\nTarget and Ms. Tyler pertaining to the payment of the consideration described in Paragraph 1\nhereof. For the sake of clarity, Target and Ms. Tyler have simultaneously executed an Income\nContinuance Agreement which contains parallel covenants. The Income Continuance Agreement is\nsupported by independent consideration and is intended to operate separately and independently\nof this Agreement.\n10. Code Section 409A. For all purposes under Section 409A of the Internal Revenue Code (“Section\n409A), each payment under this Agreement shall be treated as a separate payment. It is the\nintention of the parties that the January 13, 2017, payment be exempt from the requirements of\nSection 409A because it is a short term deferral under Treas. Reg. Sec. 1.409A-1(b)(4), and that\nthe balance of the payments, are intended to comply both in form and operation with the\nrequirements of Section 409A, and this Agreement will be construed and administered in a manner\nconsistent with such intent. Target reserves the right to adopt such rules, regulations or procedures\nthat are deemed necessary or appropriate to comply with the requirements of Section 409A. Any\npayments that are subject to the requirements of Section 409A may be accelerated or delayed only\nif and to the extent otherwise permitted under Section 409A.\n11. Reporting. Until all Consideration is paid pursuant to this Agreement, Ms. Tyler shall promptly\ninform Target of the name and business address of each business or person for which Ms. Tyler\nperforms services, and shall provide a summary description of the nature and principal business\nlocations of each such business or person. Ms. Tyler shall also provide her title, principal duties,\naddress and phone number. Significant changes to employment, services, duties or location must\nbe promptly reported. Such\n4\nreports shall be provided to the Executive Vice President, Human Resources, in accordance with\nthe procedure described in Paragraph 8.\n12. Governing Law. This Agreement will be construed and interpreted in accordance with the laws of\nthe State of Minnesota as interpreted by Minnesota state and federal courts.\n13. Jurisdiction. Any action or proceeding seeking to enforce or interpret any provision of, or based\nupon any right arising out of, this Agreement may be brought against any of the parties in the\nfederal or state courts located in Minneapolis, Minnesota, and each of the parties consents to the\njurisdiction of such courts (and of the appropriate appellate courts) in any such action or\nproceeding, and waives any objection to venue therein.\n14. Effective Date. This Agreement shall be effective on the earliest date it is executed by all parties\nhereto (the “Effective Date”).\n15. Authorization. Target affirms that this Agreement is duly authorized by all necessary parties.\n5\nDated: January 19, 2016\n/s/ Tina Tyler\nTINA TYLER\nDated: January 27, 2016\nTARGET CORPORATION\nBy: /s/ Jodee Kozlak\nIts: CHRO\nDated: January 27, 2016\nTARGET ENTERPRISE, INC.\nBy: /s/ Jodee Kozlak\nIts: CHRO\n6
+65ad3d6fa2814b1e1f6b87f56b398086.pdf	jurisdiction	EX-10 .29 22 a2207597zex-10_29.htm FORM OF NON-COMPETITION AND CONFIDENTIALITY AGREEMENT -- EXECUTIVE OFFICERS\nExhibit 10.29\nExecution Version\nNON-COMPETITION, NON -SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nNON-COMPETITION , NON -SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”) made as of\n, by and between Fifth Third Processing Solutions, LLC, a Delaware\nlimited liability company (together with any successor entity thereto, the “Company”), and\n(“Employee”) .\nIn consideration of the Company’s offer of employment pursuant to the terms and conditions of an offer letter, dated as of the date of this Agreement, the Company’s providing Employee with access to its\nproperty, equipment and valuable Confidential Information (as defined below), and other good and valuable consideration, the parties hereby agree as follows:\n1.\nEmployee’s Covenants\na. Non-Competition: During the Restricted Period (as defined below), Employee agrees not to compete in any manner, either directly or indirectly, whether for compensation or otherwise, with the\nCompany, including by, entering into an ownership, consulting or employment arrangement with, or render services for, any individual or entity; accept or provide assistance in the accepting of (including, but not limited to, providing any\nservice, information or assistance or other facilitation or other involvement) business or orders from customers or any potential customers of the Business or the Company with whom Employee has had contact, involvement, or\nresponsibility on behalf of any third party or otherwise, or to assist any other person or entity to compete with the Business (as defined below) or the Company by either:\n(i)\nproducing, developing or marketing, rendering services or handling products competitive with the Business or the Company in any geographic region or territory in which\nEmployee worked or had responsibility during the eighteen (18) month period preceding departure from the Company or the Closing, as applicable, or assisting others to\nproduce, develop or market, or render such services or products; or\n(ii)\naccepting employment from or having any other relationship (including, without limitation, through owning, managing, operating, controlling or consulting) with any entity\nwhich produces, develops or markets, a product, process, or service which is competitive with those products, processes, or services of the Business or the Company, whether\nexisting or planned for the future, on which Employee has worked, or concerning which Employee has in any manner acquired knowledge of or had access to Confidential\nInformation, during the eighteen (18) months preceding termination of Employee’s employment, provided, however, that it shall not be a violation of this Agreement for\nEmployee to have beneficial ownership of less than 1% of the outstanding amount of any class of securities listed on a national securities exchange or quoted on an\ninter-dealer quotation system.\nb. Non-Solicitation: During the Restricted Period, Employee agrees that Employee will not, either on Employee’s own behalf or on behalf of any other person or entity, directly or indirectly, (a) solicit\nany person or entity that is a customer of the Business or the Company, or has been a customer of the Company during the prior eighteen (18) months, to purchase any products or services the Business or the Company provided or\nprovides to the customer, (b) interfere with any of the Business’s or the Company’s business relationships, or (c) directly or indirectly solicit, divert, entice or take away any potential customer identified, selected or targeted by the\nBusiness or the Company with whom Employee had contact, involvement or responsibility during Employee’s employment with the Company and/or its affiliates, or attempt to do so for the sale of any product or service that competes\nwith a product or service offered by the Business or the Company.\nc. No-Hire: During the Restricted Period, Employee agrees that Employee will not, either on Employee’s own behalf or on behalf of any other person or entity, directly or indirectly, hire, solicit or\nencourage to leave the employ of the Company, Holdco and/or any of their subsidiaries who is then an employee of the Company, Holdco and/or any of their subsidiaries or was such an employee within twelve (12) months of the date of\nsuch hiring, soliciting, or encouragement to leave.\nd. Confidentiality. The Employee will not at any time (whether during or after the Employee’s employment with the Company or its subsidiaries) disclose, divulge, transfer or provide access to, or use for\nthe benefit of, any third party outside the Company, Holdco or their subsidiaries (other than as necessary to perform the Employee’s employment duties) any Confidential Information without prior authorization of the Company. Upon\ntermination of the Employee’s employment for any reason, the Employee shall return any and all Confidential Information and other property of the Company, Holdco or their subsidiaries in the Employee’s possession.\ne. Non-Disparagement. During the Restricted Period, Employee agrees that Employee will not make disparaging statements, in any form, about the Company or its affiliates, officers, directors, agents,\nemployees, products or services which Employee knows, or has reason to believe, are false or misleading.\n2\nf. Certain Definitions.\n(i)\n“ Business” means (i) merchant processing services (including payment authorization, clearing and settlement for credit, debit, check authorization and truncation), (ii) gift,\nprivate label, stored value and prepaid card processing, (iii) electronic funds transfer services to business customers (including debt and ATM card processing and driving\nservices, PIN and signature debit transaction authorization settlement and exception processing, (iv) payment and ATM network switching services (including the Jeanie\nnetwork), (v) credit and debit card production, activation, replacement and related management services (including on an outsourced basis), (vi) certain payments-related\nreselling services, (vii) other value added services (including fraud detection, prevention and management services) relating to the foregoing, (viii) promotional messaging\nservice relating to the foregoing, (ix) debit portfolio management services related to the foregoing, and (x) certain data processing services.\n(ii)\n“ Confidential Information” shall mean information or material of the Company which is not generally available to or used by others, or the utility or value of which is not\ngenerally known or recognized as standard practice, whether or not the underlying details are in the public domain, including: (A) information or material relating to the\nCompany and its business as conducted or anticipated to be conducted; business plans; operations; past, current or anticipated services, products or software; customers or\nprospective customers; relations with business partners or prospective business partners; or research, engineering, development, manufacturing, purchasing, accounting, or\nmarketing activities; (B) information or material relating to the Company’s inventions, improvements, discoveries, “know-how,” technological developments, or unpublished\nwritings or other works of authorship, or to the materials, apparatus, processes, formulae, plans or methods used in the development, manufacture or marketing of the\nCompany’s services, products or software; (C) information on or material relating to the Company which when received is marked as “proprietary,” “private,” or\n“c onfidential”; (D) trade secrets of the Company; (E) software of the Company in various stages of development, software designs, web-based solutions, specifications,\nprogramming aids, programming languages, interfaces, visual displays, technical documentation, user manuals, data files and databases of the Company; and (F) any similar\ninformation of the type described above which the Company obtained from another party and which the Company treats as or designates as being proprietary, private or\n3\nconfidential, whether or not owned or developed by the Company. Notwithstanding the foregoing, “Confidential Information” does not include any information which is\nproperly published or in the public domain; provided, however, that information which is published by or with the aid of Employee outside the scope of employment or\ncontrary to the requirements of this Agreement will not be considered to have been properly published, and therefore will not be in the public domain for purposes of this\nAgreement.\n(iii)\n“Restricted Period” means the period of Employee’s employment by the Company, its parent company or one of their respective subsidiaries and one (1) year following\ntermination of such employment for any reason.\n2.\nRepresentations, Warranties and Acknowledgements\na. Employee acknowledges that Employee’s services are of a special, unique and extraordinary character and, Employee’s position with the Business and the Company places Employee in a position of\nconfidence and trust with the customers, suppliers, vendors, employees and agents of the Company.\nb. Employee also acknowledges that businesses that are competitive with the Company include, but are not limited to, any businesses which are engaged in the Business or any other lines of business that\nthe Company may engage in the future. Employee further acknowledges that given the nature of the Business and the other businesses of the Company, certain accounts of the Company are national in scope and are not dependent on the\ngeographic location of Employee or the Company.\nc. Employee represents and warrants to the Company that Employee is not a party to any agreement, or non-competition or other covenant or restriction contained in any agreement, commitment,\narrangement or understanding (whether oral or written), that in any way conflicts with or limits Employee’s ability to commence or continue to render services to the Company or that would otherwise limit Employee’s ability to perform\nall responsibilities in accordance with the terms and subject to the conditions of Employee’s employment.\n3.\nRemedies\nIn the event of breach or threatened breach by Employee of any provision of Section 1 hereof, the Company shall be entitled to (a) temporary and preliminary and permanent injunctive relief and without the\nposting any bond or other security, (b) damages and an equitable accounting of all earnings, profits and other benefits arising from such violation, (c) recovery of all attorney’s fees and costs incurred by the Company in obtaining such\nrelief, (d) cessation and repayment of any severance benefits paid to Employee pursuant to any agreement with the Company, including any employment agreement, severance benefit agreement, plan or program of the Company, and\n(e) any other legal and equitable relief to which it may be entitled, including any and all monetary damages which the Company may incur as a result of said breach or threatened breach. The Company may pursue any remedy available,\nincluding declaratory\n4\nrelief, concurrently or consecutively in any order, and the pursuit of one such remedy at any time will not be deemed an election of remedies or waiver of the right to pursue any other remedy.\n4.\nEarly Resolution Conference\nThis Agreement is understood to be clear and enforceable as written and is executed by both parties on that basis. However, should Employee later challenge any provision as unclear, unenforceable, or\ninapplicable to activity that Employee intends to engage in, Employee will first notify Company in writing and meet with a Company representative and a neutral mediator (if the Company elects to retain one at its expense) to discuss\nresolution of any disputes between the parties. Employee will provide this notification at least fourteen (14) days before Employee engages in any activity on behalf of a competing business or engages in other activity that could\nforeseeably fall within a questioned restriction. The failure to comply with this requirement shall waive Employee’s right to challenge the reasonable scope, clarity, applicability, or enforceability of the Agreement and its restrictions at a\nlater time. All rights of both parties will be preserved if the early resolution conference requirement is complied with even if no agreement is reached in the conference.\n5.\nMiscellaneous\na. This Agreement, together with the offer letter, constitute the sole and entire agreements and understandings between Employee and the Company with respect to the matters covered thereby, and there\nare no other promises, agreements, representations, warranties or other statements between Employee and the Company in respect to such matters not expressly set forth in these agreements. These Agreements supersede all prior and\ncontemporaneous agreements, understandings or other arrangements concerning the subject matter thereof. These Agreements may not be changed or terminated orally but only by an agreement in writing signed by the parties hereto.\nb. No course of dealing or any delay on the part of the Company or Employee in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach of this\nAgreement shall be deemed a continuing waiver of any other breach or default.\nc. Because the Company is headquartered in the State of Ohio this Agreement shall be governed by, and construed in accordance with, the laws of the State of Ohio without regard to the choice of law\nrules of any state or where Employee is in fact required to work.\nd. If any provision or clause of this Agreement, or portion thereof, shall be held by any court of competent jurisdiction to be illegal, void or unenforceable in such jurisdiction, the remainder of such\nprovisions shall not thereby be affected and shall be given full effect, without regard to the invalid portion. It is the intention of the parties that, if any court construes any provision or clause of this Agreement, or any portion thereof, to be\nillegal, void or unenforceable because of the duration of such provision or the area or matter covered thereby, such court shall reduce the duration, area, or matter of such provision and, in its reduced form, such provision shall then be\nenforceable and shall be enforced.\n5\ne. The obligations of Employee may not be delegated and, Employee may not assign or otherwise transfer this Agreement or any obligations hereunder. This Agreement and all of the Company’s rights\nand obligations under this Agreement may be assigned or transferred by the Company to and may be assumed by and inure to the benefit of any successor or other transferee of all or a substantial part of the assets of the Company’s\nbusiness in which Employee works.\nf. Any legal suit, action or proceeding against any party hereto arising out of or relating to this Agreement shall be instituted in a Ohio federal or state court in the Ohio and each party hereto waives any\nobjection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding and each party hereto irrevocably submits to the jurisdiction of any such court in any suit, action or proceeding.\n[The remainder of this page is left blank intentionally.]\n6\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered, effective as of the date first indicated above by a duly authorized officer of the Company.\nEMPLOYEE:\nSignature\nPrint name\n[SIGNATURE PAGE TO\nNON-COMPETITION AGREEMENT]\nFIFTH THIRD PROCESSING SOLUTIONS, LLC\nBy:\nSignature\nPrint name\nTitle\n[SIGNATURE PAGE TO\nNON-COMPETITION AGREEMENT]	EX-10.29 22 a2207597zeX-10_29.htm FORM OF NON-COMPETITION AND CONFIDENTIALITY AGREEMENT -- EXECUTIVE OFFICERS\nExhibit 10.29\nExecution Version\nN0 N-COMPETITIO N, NON-SOLIC ITATION\nAND CONFIDENTIALITY AGREEMENT\nNON-COMPETITIO N, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this "A ggement”) made as of , by and between Fifth Third Processing Solutions, LLC, a Delaware\nlimited liability company (together with any successor entity thereto, the "Company”), and ("Employee").\nIn consideration of the Company' 5 offer of employment pursuant to the terms and conditions of an offer letter, dated as of the date of this Agreement, the Company' 5 providing Employee with access to its\nproperty, equipment and valuable Confidential Information (as defined below), and other good and valuable consideration, the parties hereby agree as follows:\n1. Employee’ s C ovenants\na, Non-Competition: During the Restricted Period (as defined below), Employee agrees not to compete in any manner, either directly orindirectly, whether for compensation or otherwise, with the\nCompany, including by, entering into an ownership, consulting or employment arrangement with, or render services for, any individual or entity,- accept or provide assismnce in the accepting of (including, but not limited to, providing any\nservice, information or assistance or other facilimtion or other involvement) business or orders from customers or any potential customers of the Business or the Company with whom Employee has had contact, involvement, or\nresponsibility on behalf of any third party or otherwise, or to assist any other person or entity to compete with the Business (as defined below) or the Company by either:\n(i) producing, developing or marketing, rendering services or handling products competitive with the Business or the Company in any geographic region or territory in which\nEmployee worked or had responsibility during the eighteen (18) month period preceding departure from the Company or the Closing, as applicable, or assisting others to\nproduce, develop or market, or render such services or products; or\n(ii) accepting employment from or having any other relationship (including, without limitation, through owning, managing, operating, controlling or consulting) with any entity\nwhich produces, develops or markets, a product, process, or service which is competitive with those products, processes, or services of the Business or the Company, whether\nexisting or planned for the future, on which Employee has worked, or concerning which Employee has in any manner acquired knowledge of or had access to Confidential\nInformation, during the eighteen (18) months preceding termination of Employee’s employment, provided, however, that it shall not be a violation of this Agreement for\nEmployee to have beneficial ownership of less than 1% of the outstanding amount of any class of securities listed on a national securities exchange or quoted on an\ninter- dealer quomtion system\nb. Non-Solicitation: During the Restricted Period, Employee agrees that Employee will not, either on Employee's own behalf or on behalf of any other person or entity, directly or indirectly, (a) solicit\nany person or entity that is a customer of the Business or the Company, or has been a customer of the Company during the prior eighteen (18) months, to purchase any products or services the Business or the Company provided or\nprovides to the customer, (b) interfere with any of the Business' 5 or the Company' 5 business relationships, or (c) directly or indirectly solicit, divert, entice or take away any potential customer identified, selected or targeted by the\nBusiness or the Company with whom Employee had contact, involvement or responsibility during Employee's employment with the Company and/orits affiliates, or attempt to do so for the sale of any product or service that competes\nwith a product or service offered by the Business or the Company,\nor No-Hire: During the Restricted Period, Employee agrees that Employee will not, either on Employee' 5 own behalf or on behalf of any other person or entity, directly or indirectly, hire, solicit or\nencourage to leave the employ of the Company, Holdco and/or any of their subsidiaries who is then an employee of the Company, Holdco and/or any of their subsidiaries or was such an employee within twelve (12) months of the date of\nsuch hiring, soliciting, or encouragement to leave.\nd. Confidentialiy. The Employee will not at any time (whether during or after the Employee' 5 employment with the Company or its subsidiaries) disclose, divulge, transfer or provide access to, or use for\nthe benefit of, any third party outside the Company, Holdco or their subsidiaries (other than as necessary to perform the Employee' 5 employment duties) any Confidential Information without prior authorization of the Company. Upon\ntermination of the Employee’s employment for any reason, the Employee shall return any and all Confidential Information and other property of the Company, Holdco or their subsidiaries in the Employee's possession,\ne, Non-Disparaqement. During the Restricted Period, Employee agrees that Employee will not make disparaging statements, in any form, about the Company or its affiliates, officers, directors, agents,\nemployees, products or services which Employee knows, or has reason to believe, are false or misleading.\nf. C ertain D efinitions,\n(i) "Business" means (i) merchant processing services (including payment authorization, clearing and settlement for credit, debit, check authorization and truncation), (ii) gift,\nprivate label, stored value and prepaid card processing, (iii) electronic funds transfer services to business customers (including debt and ATM card processing and driving\nservices, PIN and signature debit transaction authorization settlement and exception processing, (iv) payment and ATM network switching services (including theJeanie\nnetwork), (v) credit and debit card production, activation, replacement and related management services (including on an outsourced basis), (vi) certain payments-related\nreselling services, (vii) other value added services (including fraud detection, prevention and management services) relating to the foregoing, (viii) promotional messaging\nservice relating to the foregoing, (ix) debit portfolio management services related to the foregoing, and (x) cermin dam processing services.\n(ii) ”Confidential Information" shall mean information or material of the Company which is not generally available to or used by others, or the utility or value of which is not\ngenerally known or recognized as standard practice, whether or not the underlying details are in the public domain, including: (A) information or material relating to the\nCompany and its business as conducted or anticipated to be conducted,- business plans,- operations; past, current or anticipated services, products or software,- customers or\nprospective customers; relations with business partners or prospective business partners,- or research, engineering, development, manufacturing, purchasing, accounting, or\nmarketing activities; (B) information or material relating to the Company’s inventions, improvements, discoveries, "know-how," technological developments, or unpublished\nwritings or other works of authorship, orto the materials, apparatus, processes, formulae, plans or methods used in the development, manufacture or marketing of the\nCompany's services, products or software; (C) information on or material relating to the Company which when received is marked as ”proprietary," "private," or\n"confidential"; (D) trade secrets of the Company: (E) software of the Company in various stages of development, software designs, web-based solutions, specifications,\nprogramming aids, programming languages, interfaces, visual displays, technical documentation, user manuals, data files and databases of the Company; and (F) any similar\ninformation of the type described above which the Company obmined from another party and which the Company treats as or designates as being propriemry, private or\nconfidential, whether or not owned or developed by the Company. Notwithstanding the foregoing, "Confidential Information" does not include any information which is\nproperly published orin the public domain; Molar, however, that information which is published by or with the aid of Employee outside the scope of employment or\ncontrary to the requirements of this Agreement will not be considered to have been properly published, and therefore will not be in the public domain for purposes of this\nA greement.\n(iii) ”Restricted Period" means the period of Employee' 5 employment by the Company, its parent company or one of their respective subsidiaries and one (1) year following\ntermination of such employment for any reason.\n2. Representations, Warranties and Acknowledgements\n \na. Employee acknowledges that Employee's services are of a special, unique and extraordinary character and, Employee's position with the Business and the Company places Employee in a position of\nconfidence and trust with the customers, suppliers, vendors, employees and agents of the Company.\nb. Employee also acknowledges that businesses that are competitive with the Company include, but are not limited to, any businesses which are engaged in the Business or any other lines of business that\nthe Company may engage in the future. Employee further acknowledges that given the nature of the Business and the other businesses of the Company, certain accounts of the Company are national in scope and are not dependent on the\ngeographic location of Employee or the Company.\nc. Employee represents and warrants to the Company that Employee is not a party to any agreement, or non-competition or other covenant or restriction conmined in any agreement, commitment,\narrangement or understanding (whether oral or written), that in any way conflicts with or limits Employee's ability to commence or continue to render services to the Company or that would otherwise limit Employee's ability to perform\nall responsibilities in accordance with the terms and subject to the conditions of Employee’s employment.\n3. Remedies\nIn the event of breach or threatened breach by Employee of any provision of Section 1 hereof, the Company shall be entitled to (a) temporary and preliminary and permanent injunctive relief and without the\n \nposting any bond or other security, (b) damages and an equitable accounting of all earnings, profits and other benefits arising from such violation, (c) recovery of all attorney' 5 fees and costs incurred by the Company in obtaining such\nrelief, (d) cessation and repayment of any severance benefits paid to Employee pursuant to any agreement with the Company, including any employment agreement, severance benefit agreement, plan or program of the Company, and\n(e) any other legal and equimble relief to which it may be entitled, including any and all monetary damages which the Company may incur as a result of said breach or threatened breach. The Company may pursue any remedy available,\nincluding declarame\nrelief, concurrently or consecutively in any order, and the pursuit of one such remedy at any time will not be deemed an election of remedies or waiver of the right to pursue any other remedy.\n4. Early Resolution C onference\nThis Agreement is understood to be clear and enforceable as written and is executed by both parties on that basis. However, should Employee later challenge any provision as unclear, unenforceable, or\ninapplicable to activity that Employee intends to engage in, Employee will first notify Company in writing and meet with a Company represenmtive and a neutral mediator (if the Company elects to remin one at its expense) to discuss\nresolution of any disputes between the parties. Employee will provide this notification at least fourteen (14) days before Employee engages in any activity on behalf of a competing business or engages in other activity that could\nforeseeably fall within a questioned restriction. The failure to comply with this requirement shall waive Employee's right to challenge the reasonable scope, clarity, applicability, or enforceability of the Agreement and its restrictions at a\nlater time. All rights of both parties will be preserved if the early resolution conference requirement is complied with even if no agreement is reached in the conference.\n5. Miscellaneous\na. This Agreement, together with the offer letter, constitute the sole and entire agreements and understandings between Employee and the Company with respect to the matters covered thereby, and there\nare no other promises, agreements, representations, warranties or other smtements between Employee and the Company in respect to such matters not expressly set forth in these agreements. These Agreements supersede all prior and\ncontemporaneous agreements, understandings or other arrangements concerning the subject matter thereof. These Agreements may not be changed or terminated orally but only by an agreement in writing signed by the parties hereto.\nb. No course of dealing or any delay on the part of the Company or Employee in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach of this\nAgreement shall be deemed a continuing waiver of any other breach or default.\nc. Because the Company is headquartered in the State of Ohio this Agreement shall be governed by, and construed in accordance with, the laws of the State of Ohio without regard to the choice of law\nrules of any state or where Employee is in fact required to work.\nd. If any provision or clause of this Agreement, or portion thereof, shall be held by any court of competent jurisdiction to be illegal, void or unenforceable in such jurisdiction, the remainder of such\nprovisions shall not thereby be affected and shall be given full effect, without regard to the invalid portion. It is the intention of the parties that, if any court construes any provision or clause of this Agreement, or any portion thereof, to be\nillegal, void or unenforceable because of the duration of such provision or the area or matter covered thereby, such court shall reduce the duration, area, or matter of such provision and, in its reduced form, such provision shall then be\nenforceable and shall be enforced.\ne. The obligations of Employee may not be delegated and, Employee may not assign or otherwise transfer this Agreement or any obligations hereunder. This Agreement and all of the Company's rights\nand obligations under this Agreement may be assigned or transferred by the Company to and may be assumed by and inure to the benefit of any successor or other transferee of all or a substantial part of the assets of the Company’s\nbusiness in which Employee works.\nf. Any legal suit, action or proceeding against any party hereto arising out of or relating to this Agreement shall be instituted in a Ohio federal or state court in the Ohio and each party hereto waives any\nobjection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding and each party hereto irrevocably submits to the jurisdiction of any such court in any suit, action or proceeding.\n[The remainder of this page is left blank intentionally]\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered, effective as of the date first indicated above by a duly authorized officer of the Company.\nEMPLOY EE:\nSW?\nPHD name\n[SIGNATURE PAGE TO NON-COMPETITION AGREEMENT]\nFIFTH THIRD PROCESSING SOLUTIONS, LLC\nBy:\nSignafi re\nPHD name\n[SIGNATURE PAGE TO NON-COMPETITION AGREEMENT]	EX-10.29 22 a2207597zex-10_29.htr FORMC OF NON-COMPETITION AND CONFIDENTIALITY AGREEMENT EXECUTIVE OFFICERS\nExhibit 10.29\nExecution Version\nNON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nNON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this "Agreement") made as of\nby and between Fifth Third Processing Solutions, LLC, a Delaware\nlimited liability company (together with any successor entity thereto the "Company") and\n("Employee").\nIn consideration of the Company's offer of employment pursuant to the terms and conditions of an offer letter, dated as of the date of this Agreement, the Company's providing Employee with access to\nits\nproperty equipment and valuable Confidential Information (as defined below), and other good and valuable consideration, the parties hereby agree as follows:\n1.\nEmplovee's Covenants\na.\nNon-Competition: During the Restricted Period (as defined below), Employee agrees no to compete in any manner, either directly or indirectly, whether for compensation or otherwise, with the\nCompany, including by, entering into an ownership, consulting or employment arrangement with or render services for, any individual or entity accept or provide assistance in the accepting of (including, but not limited to, providing any\nservice, information or assistance or other facilitation or other involvement) business or orders from customers or any potential customers of the Business or the Company with whom Employee has had contact, involvement or\nresponsibility on behalf of any third party or otherwise, or to assist any other person or entity to compete with the Business (as defined below) or the Company by either:\n(i)\nproducing, developing or marketing, rendering services or handling products competitive with the Business or the Company in any geographic region or territory in which\nEmployee worked or had responsibility during the eighteen (18) month period preceding departure from the Company or the Closing, as applicable, or assisting others\nto\nproduce develop or market, or render such services or products or\n(ii)\naccepting employment from or having any other relationship (including, without limitation, through owning, managing, operating, controlling or consulting) with any entity\nwhich produces, develops or markets, a product process, or service which is competitive with those products, processes, or services of the Business or the Company, whether\nexisting or planned for the future, on which Employee has worked, or conceming which Employee has in any manner acquired knowledge of or had access to Confidential\nInformation, during the eighteen (18) months preceding termination of Employee's employment, provided however that it shall not be a violation of this Agreement for\nEmployee to have beneficial ownership of less than 1% of the outstanding amount of any class of securities listed on a national securities exchange or quoted on an\ninter-dealer quotation system.\nb. Non-Solicitation: During the Restricted Period, Employee agrees that Employee will not either on Employee's own behalf or on behalf of any other person or entity, directly or indirectly, (a) solicit\nany person or entity that is a customer of the Business or the Company, or has been a customer of the Company during the prior eighteen (18) months, to purchase any products or services the Business or the Company provided or\nprovides to the customer, (b) interfere with any of the Business's or the Company's business relationships, or (c) directly or rindirectly solicit, divert, entice or take away any potential customer identified, selected or targeted by the\nBusiness or the Company with whom Employee had contact, involvement or responsibility during Employee's employment with the Company and/or its affiliates, or attempt to do so for the sale of any product or service that competes\nwith a product or service offered by the Business or the Company.\nc.\nNo-Hire: During the Restricted Period, Employee agrees that Employee will not, either on Employee's own behalf or on behalf of any other person or entity, directly or indirectly, hire, solicit or\nencourage to leave the employ of the Company, Holdco and/or any of their subsidiaries who is then an employee of the Company, Holdco and/or any of their subsidiaries or was such an employee within twelve (12) months of the date of\nsuch hiring, soliciting, or encouragement to leave.\nd. Confidentiality. The Employee will not at any time (whether during or after the Employee's employment with the Company or its subsidiaries) disclose, divulge, transfer or provide access to, or use for\nthe benefit of, any third party outside the Company, Holdco or their subsidiaries (other than as necessary to perform the Employee's employment duties) any Confidential Information without prior authorization of the Company. Upon\ntermination of the Employee's employment for any reason, the Employee shall return any and all Confidential Information and other property of the Company, Holdco or their subsidiaries in the Employee's possession.\ne.\nNon -Disparagement. During the Restricted Period, Employee agrees that Employee wil not make disparaging statements, in any for, about the Company or its affiliates, officers, directors, agents,\nemployees, products or services which Employee knows, or has reason to believe, are false or misleading.\n2\nf. Certain Definitions.\n(i)\n"Business" means (i) merchant processing services (including payment authorization, clearing and settlement for credit, debit, check authorization and truncation), (ii) gift,\nprivate label stored value and prepaid card processing, (iii) electronic funds transfer services to business customers (including debt and ATM card processing and driving\nservices PIN and signature debit transaction authorization settlement and exception processing (iv) payment and ATM network switching services (including the Jeanie\nnetwork), (v) credit and debit card production, activation, replacement and related management services (including on an outsourced basis) (vi) certain payments-related\nreselling services, (vii) other value added services (including fraud detection prevention and management services) relating to the foregoing, (viii) promotional messaging\nservice relating to the foregoing (ix) debit portfolio management services related to the foregoing, and (x) certain data processing services.\n(ii)\n"Confidential Information" shall mean information or material of the Company which is not generally available to or used by others, or the utility or value of which is not\ngenerally known or recognized as standard practice, whether or not the underlying details are in the public domain, including (A) information or material relating to the\nCompany and its business as conducted or anticipated to be conducted; business plans; operations past, current or anticipated services, products or software; customers or\nprospective customers; relations with business partners or prospective business partners; or research, engineering, development, manufacturing, purchasing, accounting, or\nmarketing activities; (B) information or material relating to the Company's inventions, improvements, discoveries, "know-how," technological developments, or unpublished\nwritings or other works of authorship, or to the materials, apparatus, processes, formulae, plans or methods used in the development, manufacture or marketing of the\nCompany's services, products or software; (C) information on or material relating to the Company which when received is marked as "proprietary," "private,' or\n"confidential" (D) trade secrets of the Company; (E) software of the Company in various stages of development, software designs, web-based solutions, specifications,\nprogramming aids, programming languages, interfaces, visual displays, technical documentation, user manuals, data files and databases of the Company; and (F) any similar\ninformation of the type described above which the Company obtained from another party and which the Company treats as or designates as being proprietary, private or\n3\nconfidential, whether or not owned or developed by the Company. Notwithstanding the foregoing, "Confidential Information" does not include any information which is\nproperly published or in the public domain; provided however, that information which is published by or with the aid of Employee outside the scope of employment or\ncontrary to the requirements of this Agreement will not be considered to have been properly published, and therefore will not be in the public domain for purposes of this\ngreement.\n(iii)\n"Restricted Period" means the period of Employee's employment by the Company, its parent company or one of their respective subsidiaries and one (1) year following\ntermination of such employment for any reason.\n2.\nRepresentations, Warranties and Acknowledgements\na.\nEmployee acknowledges that Employee's services are of a special, unique and extraordinary character and, Employee's position with the Business and the Company places Employee in a position of\nconfidence and trust with the customers, suppliers, vendors, employees and agents of the Company.\nb. Employee also acknowledges that businesses that are competitive with the Company include, but are not limited to, any businesses which are engaged in the Business or any other lines of business that\nthe Company may engage in the future. Employee further acknowledges that given the nature of the Business and the other businesses of the Company, certain accounts of the Company are national in scope and are not dependent on the\ngeographic location of Employee or the Company.\nc. Employee represents and warrants to the Company that Employee is not a party to any agreement or non-competition or other covenant or restriction contained in any agreement, commitment,\narrangement or understanding (whether oral or written), that in any way conflicts with or limits Employee's ability to commence or continue to render services to the Company or that would otherwise limit Employee's ability to perform\nall responsibilities in accordance with the terms and subject to the conditions of Employee's employment.\n3.\nRemedies\nIn the event of breach or threatened breach by Employee of any provision of Section hereof, the Company shall be entitled to (a) temporary and preliminary and permanent injunctive relief and without the\nposting any bond or other security, (b) damages and an equitable accounting of all earnings, profits and other benefits arising from such violation (c) recovery of all attomey's fees and costs incurred by the Company in obtaining such\nrelief, (d) cessation and repayment of any severance benefits paid to Employee pursuant to any agreement with the Company, including any employment agreement, severance benefit agreement, plan or program of the Company,\nand\n(e) any other legal and equitable relief to which it may be entitled including any and all monetary damages which the Company may incur as a result of said breach or threatened breach. The Company may pursue any remedy available,\nincluding declaratory\n4\nrelief, concurrently or consecutively in any order, and the pursuit of one such remedy at any time will not be deemed an election of remedies or waiver of the right to pursue any other remedy.\n4.\nEarly Resolution Conference\nThis Agreement is understood to be clear and enforceable as written and is executed by both parties on that basis. However, should Employee later challenge any provision as unclear, unenforceable, or\ninapplicable to activity that Employee intends to engage in, Employee will first notify Company in writing and meet with a Company representative and a neutral mediator (if the Company elects to retain one at its expense) to\ndiscuss\nresolution of any disputes between the parties. Employee will provide this notification at least fourteen (14) days before Employee engages in any activity on behalf of a competing business or engages in other activity that could\nforeseeably fall within a questioned restriction. The failure to comply with this requirement shal waive Employee's right to challenge the reasonable scope clarity, applicability, or enforceability of the A greement and its restrictions at\na\nlater time. All rights of both parties will be preserved if the early resolution conference requirement is complied with even if no agreement is reached in the conference.\n5.\nMiscellaneous\na.\nThis A greement together with the offer letter, constitute the sole and entire agreements and understandings between Employee and the Company with respect to the matters covered thereby, and there\nare no other promises, agreements, representations, warranties or other statements between Employee and the Company in respect to such matters not expressly set forth in these agreements. These A greements supersede all prior and\ncontemporaneous agreements, understandings or other arrangements concerning the subject matter thereof. These A greements may not be changed or terminated orally but only by an agreement in writing signed by the parties hereto.\nb. No course of dealing or any delay on the part of the Company or Employee in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach of this\nAgreement shall be deemed a continuing waiver of any other breach or default.\nc.\nBecause the Company is headquartered in the State of Ohio this Agreement shall be governed by, and construed in accordance with, the laws of the State of Ohio without regard to the choice of law\nrules of any state or where Employee is in fact required to work.\nd. If any provision or clause of this Agreement, or portion thereof, shall be held by any court of competent jurisdiction to be illegal void or unenforceable in such jurisdiction the remainder of such\nprovisions shall not thereby be affected and shall be given full effect, without regard to the invalid portion. It is the intention of the parties that, if any court construes any provision or clause of this Agreement, or any portion thereof, to be\nillegal, void or unenforceable because of the duration of such provision or the area or matter covered thereby, such court shall reduce the duration, area, or matter of such provision and, in its reduced form, such provision shall then be\nenforceable and shall be enforced.\n5\ne.\nThe obligations of Employee may not be delegated and Employee may not assign or otherwise transfer this Agreement or any obligations hereunder. This Agreement and all of the Company's rights\nand obligations under this Agreement may be assigned or transferred by the Company to and may be assumed by and inure to the benefit of any successor or other transferee of all or a substantial part of the assets of the Company's\nbusiness in which Employee works.\nf. Any legal suit, action or proceeding against any party hereto arising out of or relating to this A greement shall be instituted in a Ohio federal or state court in the Ohio and each party hereto waives any\nobjection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding and each party hereto irrevocably submits to the jurisdiction of any such court in any suit, action or proceeding.\n[The remainder of this page is left blank intentionally.]\n6\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered, effective as of the date first indicated above by a duly authorized officer of the Company.\nEMPLOY EE:\nS1gnature\nPnnt name\n[SIGNATURE PAGE TO\nNON-COMPETITION AGREEMENT]\nFIFTH THIRD PROCESSING SOLUTIONS, LLC\nBy:\nS1gnature\nPnnt name\nThe\n[SIGNATURE PAGE TO\nNON-COMPETITION AGREEMENT]	EX-10 .29 22 a2207597zex-10_29.htm FORM OF NON-COMPETITION AND CONFIDENTIALITY AGREEMENT -- EXECUTIVE OFFICERS\nExhibit 10.29\nExecution Version\nNON-COMPETITION, NON -SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nNON-COMPETITION , NON -SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”) made as of\n, by and between Fifth Third Processing Solutions, LLC, a Delaware\nlimited liability company (together with any successor entity thereto, the “Company”), and\n(“Employee”) .\nIn consideration of the Company’s offer of employment pursuant to the terms and conditions of an offer letter, dated as of the date of this Agreement, the Company’s providing Employee with access to its\nproperty, equipment and valuable Confidential Information (as defined below), and other good and valuable consideration, the parties hereby agree as follows:\n1.\nEmployee’s Covenants\na. Non-Competition: During the Restricted Period (as defined below), Employee agrees not to compete in any manner, either directly or indirectly, whether for compensation or otherwise, with the\nCompany, including by, entering into an ownership, consulting or employment arrangement with, or render services for, any individual or entity; accept or provide assistance in the accepting of (including, but not limited to, providing any\nservice, information or assistance or other facilitation or other involvement) business or orders from customers or any potential customers of the Business or the Company with whom Employee has had contact, involvement, or\nresponsibility on behalf of any third party or otherwise, or to assist any other person or entity to compete with the Business (as defined below) or the Company by either:\n(i)\nproducing, developing or marketing, rendering services or handling products competitive with the Business or the Company in any geographic region or territory in which\nEmployee worked or had responsibility during the eighteen (18) month period preceding departure from the Company or the Closing, as applicable, or assisting others to\nproduce, develop or market, or render such services or products; or\n(ii)\naccepting employment from or having any other relationship (including, without limitation, through owning, managing, operating, controlling or consulting) with any entity\nwhich produces, develops or markets, a product, process, or service which is competitive with those products, processes, or services of the Business or the Company, whether\nexisting or planned for the future, on which Employee has worked, or concerning which Employee has in any manner acquired knowledge of or had access to Confidential\nInformation, during the eighteen (18) months preceding termination of Employee’s employment, provided, however, that it shall not be a violation of this Agreement for\nEmployee to have beneficial ownership of less than 1% of the outstanding amount of any class of securities listed on a national securities exchange or quoted on an\ninter-dealer quotation system.\nb. Non-Solicitation: During the Restricted Period, Employee agrees that Employee will not, either on Employee’s own behalf or on behalf of any other person or entity, directly or indirectly, (a) solicit\nany person or entity that is a customer of the Business or the Company, or has been a customer of the Company during the prior eighteen (18) months, to purchase any products or services the Business or the Company provided or\nprovides to the customer, (b) interfere with any of the Business’s or the Company’s business relationships, or (c) directly or indirectly solicit, divert, entice or take away any potential customer identified, selected or targeted by the\nBusiness or the Company with whom Employee had contact, involvement or responsibility during Employee’s employment with the Company and/or its affiliates, or attempt to do so for the sale of any product or service that competes\nwith a product or service offered by the Business or the Company.\nc. No-Hire: During the Restricted Period, Employee agrees that Employee will not, either on Employee’s own behalf or on behalf of any other person or entity, directly or indirectly, hire, solicit or\nencourage to leave the employ of the Company, Holdco and/or any of their subsidiaries who is then an employee of the Company, Holdco and/or any of their subsidiaries or was such an employee within twelve (12) months of the date of\nsuch hiring, soliciting, or encouragement to leave.\nd. Confidentiality. The Employee will not at any time (whether during or after the Employee’s employment with the Company or its subsidiaries) disclose, divulge, transfer or provide access to, or use for\nthe benefit of, any third party outside the Company, Holdco or their subsidiaries (other than as necessary to perform the Employee’s employment duties) any Confidential Information without prior authorization of the Company. Upon\ntermination of the Employee’s employment for any reason, the Employee shall return any and all Confidential Information and other property of the Company, Holdco or their subsidiaries in the Employee’s possession.\ne. Non-Disparagement. During the Restricted Period, Employee agrees that Employee will not make disparaging statements, in any form, about the Company or its affiliates, officers, directors, agents,\nemployees, products or services which Employee knows, or has reason to believe, are false or misleading.\n2\nf. Certain Definitions.\n(i)\n“ Business” means (i) merchant processing services (including payment authorization, clearing and settlement for credit, debit, check authorization and truncation), (ii) gift,\nprivate label, stored value and prepaid card processing, (iii) electronic funds transfer services to business customers (including debt and ATM card processing and driving\nservices, PIN and signature debit transaction authorization settlement and exception processing, (iv) payment and ATM network switching services (including the Jeanie\nnetwork), (v) credit and debit card production, activation, replacement and related management services (including on an outsourced basis), (vi) certain payments-related\nreselling services, (vii) other value added services (including fraud detection, prevention and management services) relating to the foregoing, (viii) promotional messaging\nservice relating to the foregoing, (ix) debit portfolio management services related to the foregoing, and (x) certain data processing services.\n(ii)\n“ Confidential Information” shall mean information or material of the Company which is not generally available to or used by others, or the utility or value of which is not\ngenerally known or recognized as standard practice, whether or not the underlying details are in the public domain, including: (A) information or material relating to the\nCompany and its business as conducted or anticipated to be conducted; business plans; operations; past, current or anticipated services, products or software; customers or\nprospective customers; relations with business partners or prospective business partners; or research, engineering, development, manufacturing, purchasing, accounting, or\nmarketing activities; (B) information or material relating to the Company’s inventions, improvements, discoveries, “know-how,” technological developments, or unpublished\nwritings or other works of authorship, or to the materials, apparatus, processes, formulae, plans or methods used in the development, manufacture or marketing of the\nCompany’s services, products or software; (C) information on or material relating to the Company which when received is marked as “proprietary,” “private,” or\n“c onfidential”; (D) trade secrets of the Company; (E) software of the Company in various stages of development, software designs, web-based solutions, specifications,\nprogramming aids, programming languages, interfaces, visual displays, technical documentation, user manuals, data files and databases of the Company; and (F) any similar\ninformation of the type described above which the Company obtained from another party and which the Company treats as or designates as being proprietary, private or\n3\nconfidential, whether or not owned or developed by the Company. Notwithstanding the foregoing, “Confidential Information” does not include any information which is\nproperly published or in the public domain; provided, however, that information which is published by or with the aid of Employee outside the scope of employment or\ncontrary to the requirements of this Agreement will not be considered to have been properly published, and therefore will not be in the public domain for purposes of this\nAgreement.\n(iii)\n“Restricted Period” means the period of Employee’s employment by the Company, its parent company or one of their respective subsidiaries and one (1) year following\ntermination of such employment for any reason.\n2.\nRepresentations, Warranties and Acknowledgements\na. Employee acknowledges that Employee’s services are of a special, unique and extraordinary character and, Employee’s position with the Business and the Company places Employee in a position of\nconfidence and trust with the customers, suppliers, vendors, employees and agents of the Company.\nb. Employee also acknowledges that businesses that are competitive with the Company include, but are not limited to, any businesses which are engaged in the Business or any other lines of business that\nthe Company may engage in the future. Employee further acknowledges that given the nature of the Business and the other businesses of the Company, certain accounts of the Company are national in scope and are not dependent on the\ngeographic location of Employee or the Company.\nc. Employee represents and warrants to the Company that Employee is not a party to any agreement, or non-competition or other covenant or restriction contained in any agreement, commitment,\narrangement or understanding (whether oral or written), that in any way conflicts with or limits Employee’s ability to commence or continue to render services to the Company or that would otherwise limit Employee’s ability to perform\nall responsibilities in accordance with the terms and subject to the conditions of Employee’s employment.\n3.\nRemedies\nIn the event of breach or threatened breach by Employee of any provision of Section 1 hereof, the Company shall be entitled to (a) temporary and preliminary and permanent injunctive relief and without the\nposting any bond or other security, (b) damages and an equitable accounting of all earnings, profits and other benefits arising from such violation, (c) recovery of all attorney’s fees and costs incurred by the Company in obtaining such\nrelief, (d) cessation and repayment of any severance benefits paid to Employee pursuant to any agreement with the Company, including any employment agreement, severance benefit agreement, plan or program of the Company, and\n(e) any other legal and equitable relief to which it may be entitled, including any and all monetary damages which the Company may incur as a result of said breach or threatened breach. The Company may pursue any remedy available,\nincluding declaratory\n4\nrelief, concurrently or consecutively in any order, and the pursuit of one such remedy at any time will not be deemed an election of remedies or waiver of the right to pursue any other remedy.\n4.\nEarly Resolution Conference\nThis Agreement is understood to be clear and enforceable as written and is executed by both parties on that basis. However, should Employee later challenge any provision as unclear, unenforceable, or\ninapplicable to activity that Employee intends to engage in, Employee will first notify Company in writing and meet with a Company representative and a neutral mediator (if the Company elects to retain one at its expense) to discuss\nresolution of any disputes between the parties. Employee will provide this notification at least fourteen (14) days before Employee engages in any activity on behalf of a competing business or engages in other activity that could\nforeseeably fall within a questioned restriction. The failure to comply with this requirement shall waive Employee’s right to challenge the reasonable scope, clarity, applicability, or enforceability of the Agreement and its restrictions at a\nlater time. All rights of both parties will be preserved if the early resolution conference requirement is complied with even if no agreement is reached in the conference.\n5.\nMiscellaneous\na. This Agreement, together with the offer letter, constitute the sole and entire agreements and understandings between Employee and the Company with respect to the matters covered thereby, and there\nare no other promises, agreements, representations, warranties or other statements between Employee and the Company in respect to such matters not expressly set forth in these agreements. These Agreements supersede all prior and\ncontemporaneous agreements, understandings or other arrangements concerning the subject matter thereof. These Agreements may not be changed or terminated orally but only by an agreement in writing signed by the parties hereto.\nb. No course of dealing or any delay on the part of the Company or Employee in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach of this\nAgreement shall be deemed a continuing waiver of any other breach or default.\nc. Because the Company is headquartered in the State of Ohio this Agreement shall be governed by, and construed in accordance with, the laws of the State of Ohio without regard to the choice of law\nrules of any state or where Employee is in fact required to work.\nd. If any provision or clause of this Agreement, or portion thereof, shall be held by any court of competent jurisdiction to be illegal, void or unenforceable in such jurisdiction, the remainder of such\nprovisions shall not thereby be affected and shall be given full effect, without regard to the invalid portion. It is the intention of the parties that, if any court construes any provision or clause of this Agreement, or any portion thereof, to be\nillegal, void or unenforceable because of the duration of such provision or the area or matter covered thereby, such court shall reduce the duration, area, or matter of such provision and, in its reduced form, such provision shall then be\nenforceable and shall be enforced.\n5\ne. The obligations of Employee may not be delegated and, Employee may not assign or otherwise transfer this Agreement or any obligations hereunder. This Agreement and all of the Company’s rights\nand obligations under this Agreement may be assigned or transferred by the Company to and may be assumed by and inure to the benefit of any successor or other transferee of all or a substantial part of the assets of the Company’s\nbusiness in which Employee works.\nf. Any legal suit, action or proceeding against any party hereto arising out of or relating to this Agreement shall be instituted in a Ohio federal or state court in the Ohio and each party hereto waives any\nobjection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding and each party hereto irrevocably submits to the jurisdiction of any such court in any suit, action or proceeding.\n[The remainder of this page is left blank intentionally.]\n6\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered, effective as of the date first indicated above by a duly authorized officer of the Company.\nEMPLOYEE:\nSignature\nPrint name\n[SIGNATURE PAGE TO\nNON-COMPETITION AGREEMENT]\nFIFTH THIRD PROCESSING SOLUTIONS, LLC\nBy:\nSignature\nPrint name\nTitle\n[SIGNATURE PAGE TO\nNON-COMPETITION AGREEMENT]
+65b49db954428a2000d96815b1fcb033.pdf	effective_date jurisdiction party term	SCHEDULE A\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis non-disclosure Agreement (the “Agreement”) is made and entered into as of the Effective Date of the Licensing\nAgreement entered into between HI-TEX, INC., a Michigan corporation (the “Licensor”) and QUAKER FABRIC\nCORPORATION OF FALL RIVER, a Massachusetts company (the “Licensee”).\nRecitals\nThe parties above have entered into a License Agreement (the “Business Relationship”) which may involve the\ndisclosure by each party (the “Discloser”) to the other party (the “Recipient”) of confidential and proprietary information\nwhich is owned by the Discloser, its affiliates or third parties.\nAgreement\nNOW THEREFORE, in consideration of the mutual promises contained herein, the parties agree by their signature\non the License Agreement as follows:\nThe Confidential Information heretofore and hereafter to be exchanged between the parties is proprietary and\nconfidential to each of the parties, respectively, and is of significant importance and value to the parties and their\nrespective businesses. Accordingly, in order for the parties to facilitate their Business Relationship and to provide the\nbasis for them to furnish additional Confidential Information to each other, and in consideration thereof, the parties\nhereto have agreed as follows:\n1. During the course of disclosures hereunder and in perpetuity thereafter, each of the parties shall not, with respect\nto Confidential Information received by the Recipient the Discloser:\na. publish or disclose any Confidential Information heretofore or hereafter so received to anyone other than to\nonly those directors, officers, and employees of the Recipient who have a need to know such Confidential\nInformation in order to carry out the purpose of the disclosures contemplated by the parties; or\nb. directly or indirectly use any Confidential Information for the Recipient's own benefit (except to carry out the\npurposes of the disclosures described above) or for the benefit of any third-party.\n2. Each Recipient shall apply to Confidential Information such security procedures as it applies to like information of\nits own, provided that each Recipient shall in any event, at its own expense, provide a secure place for its retention and\nuse of Confidential Information and observe and comply with Paragraph 3 hereof.\n3. Each party has represented and warranted to and agreed with the other of them that each of its directors, officers\nand employees to whom Confidential Information is disclosed will be advised in advance of the terms of this Agreement.\n4. Each party understands, acknowledges and agrees that Confidential Information is of great competitive as well as\nmonetary value to the other and that, therefore, each party has the right to bring an action to enjoin the improper use or\ndisclosure of Confidential Information, it being agreed that a suit for monetary damages alone would be an inadequate\nremedy.\n5. The parties agree to maintain any written record made of the other's Confidential Information as “Confidential.”\n6. Upon termination of the License Agreement, the Recipient shall promptly return to the Discloser all documents or\nrecords and all copies thereof containing such Discloser's Confidential Information. All documents, memoranda, notes\nand other writings prepared by the Recipient on the basis of such Discloser's Confidential Information shall also be\nreturned to the Discloser promptly after such request or, in the alternative and promptly after such request, the Recipient\nshall destroy all of the foregoing and shall certify to the Discloser as to such destruction. The foregoing shall include,\nwithout limitation, all such records and other information in written, graphic, computer media or other form.\n7. Nothing contained herein shall be construed to grant either party a license or right to use any Confidential\nInformation of the other, or a license under any patent, trademark, copyright, know-how or trade secret of either party,\nexcept as specifically provided in the course of the Business Relationship.\n8. “Confidential Information” is defined for purposes of this Agreement to include, but not to be limited to, any one\nor more of the following, which is designated as confidential by a party: trade secrets; customer lists; business plans,\nmethods and practices; marketing plans; non-public financial data; product specifications and designs; the existence,\nnature, substance, progress and results of research and development projects; inventions; discoveries; formulae;\nprocesses; drawings; documents; records; and/or any other information, whether similar to the specified information or\nnot. Confidential Information includes, without limitation, such of the foregoing as are developed by either party, alone\nor jointly with the other of them or others, whether or not in the course of the Business Relationship, as well as such of\nthe foregoing as either party may furnish to the other from time to time.\n9. Each of the parties acknowledges that Confidential Information will be furnished, or otherwise made available to\nthe other party incident to a relationship of trust and confidence.\n10. Anything herein to the contrary notwithstanding, neither of the parties, as Recipient, shall have any obligation of\nconfidentiality with respect to any Confidential Information which:\na. was already known to the Recipient prior to acquisition from, or disclosure by the Discloser; or\nb. is or becomes publicly known through no fault or act of the Recipient; or\nc. is rightfully received by the Recipient from a third-party not known by the Recipient to have an obligation of\nconfidentiality to the other party with respect thereto; or\nd. is approved to release by written authorization of the Discloser; or\ne. is developed by the Recipient, independently or jointly with others and, in either case, without use of or\nreference to Confidential Information of the other party hereto; or\nf. the Recipient is ordered by a court of competent jurisdiction to disclose, pursuant to an order from which no\nfurther right of appeal exists or cannot be stayed pending any such appeal; provided such disclosure is strictly in\naccordance with such order, and provided further that the Recipient shall have given the Discloser prompt prior\nnotice of such order and of any request therefore and a reasonable opportunity, at the Discloser's expense, to object\nto or appeal from, or to require the Recipient to object to or appeal from, any such order or request therefore and/or\nto obtain a protective order with respect thereto.\n11. The dispute resolution provisions of the License Agreement shall apply to this schedule.	SCHEDULE A\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis non-disclosure Agreement (the “Agreement”) is made and entered into as of the Effective Date of the Licensing\nAgreement entered into between HI-TEX, INC., a Michigan corporation (the “Licensor”) and QUAKER FABRIC\nCORPORATION OF FALL RIVER, a Massachusetts company (the “Licensee”).\nRecitals\nThe parties above have entered into a License Agreement (the “Business Relationship”) which may involve the\ndisclosure by each party (the “Discloser”) to the other party (the “Recipient”) of confidential and proprietary information\nwhich is owned by the Discloser, its affiliates or third parties.\nAgreement\nNOW THEREFORE, in consideration of the mutual promises contained herein, the parties agree by their signature\non the License Agreement as follows:\nThe Confidential Information heretofore and hereafter to be exchanged between the parties is proprietary and\nconfidential to each of the parties, respectively, and is of significant importance and value to the parties and their\nrespective businesses. Accordingly, in order for the parties to facilitate their Business Relationship and to provide the\nbasis for them to furnish additional Confidential Information to each other, and in consideration thereof, the parties\nhereto have agreed as follows:\n1. During the course of disclosures hereunder and in perpetuity thereafter, each of the parties shall not, with respect\nto Confidential Information received by the Recipient the Discloser:\na. publish or disclose any Confidential Information heretofore or hereafter so received to anyone other than to\nonly those directors, officers, and employees of the Recipient who have a need to know such Confidential\nInformation in order to carry out the purpose of the disclosures contemplated by the parties; or\nb. directly or indirectly use any Confidential Information for the Recipient's own benefit (except to carry out the\npurposes of the disclosures described above) or for the benefit of any third-party.\n2. Each Recipient shall apply to Confidential Information such security procedures as it applies to like information of\nits own, provided that each Recipient shall in any event, at its own expense, provide a secure place for its retention and\nuse of Confidential Information and observe and comply with Paragraph 3 hereof.\n3. Each party has represented and warranted to and agreed with the other of them that each of its directors, officers\nand employees to whom Confidential Information is disclosed will be advised in advance of the terms of this Agreement.\n4. Each party understands, acknowledges and agrees that Confidential Information is of great competitive as well as\nmonetary value to the other and that, therefore, each party has the right to bring an action to enjoin the improper use or\ndisclosure of Confidential Information, it being agreed that a suit for monetary damages alone would be an inadequate\nremedy.\n5. The parties agree to maintain any written record made of the other's Confidential Information as “Confidential.”\n6. Upon termination of the License Agreement, the Recipient shall promptly return to the Discloser all documents or\nrecords and all copies thereof containing such Discloser's Confidential Information. All documents, memoranda, notes\nand other writings prepared by the Recipient on the basis of such Discloser's Confidential Information shall also be\nreturned to the Discloser promptly after such request or, in the alternative and promptly after such request, the Recipient\nshall destroy all of the foregoing and shall certify to the Discloser as to such destruction. The foregoing shall include,\nwithout limitation, all such records and other information in written, graphic, computer media or other form.\n7. Nothing contained herein shall be construed to grant either party a license or right to use any Confidential\nInformation of the other, or a license under any patent, trademark, copyright, know-how or trade secret of either party,\nexcept as specifically provided in the course of the Business Relationship.\n8. “Confidential Information” is defined for purposes of this Agreement to include, but not to be limited to, any one\nor more of the following, which is designated as confidential by a party: trade secrets; customer lists; business plans,\nmethods and practices; marketing plans; non-public financial data; product specifications and designs; the existence,\nnature, substance, progress and results of research and development projects; inventions; discoveries; formulae;\nprocesses; drawings; documents; records; and/or any other information, whether similar to the specified information or\nnot. Confidential Information includes, without limitation, such of the foregoing as are developed by either party, alone\nor jointly with the other of them or others, whether or not in the course of the Business Relationship, as well as such of\nthe foregoing as either party may furnish to the other from time to time.\n9. Each of the parties acknowledges that Confidential Information will be furnished, or otherwise made available to\nthe other party incident to a relationship of trust and confidence.\n10. Anything herein to the contrary notwithstanding, neither of the parties, as Recipient, shall have any obligation of\nconfidentiality with respect to any Confidential Information which:\na. was already known to the Recipient prior to acquisition from, or disclosure by the Discloser; or\nb. is or becomes publicly known through no fault or act of the Recipient; or\nc. is rightfully received by the Recipient from a third-party not known by the Recipient to have an obligation of\nconfidentiality to the other party with respect thereto; or\nd. is approved to release by written authorization of the Discloser; or\ne. is developed by the Recipient, independently or jointly with others and, in either case, without use of or\nreference to Confidential Information of the other party hereto; or\nf. the Recipient is ordered by a court of competent jurisdiction to disclose, pursuant to an order from which no\nfurther right of appeal exists or cannot be stayed pending any such appeal; provided such disclosure is strictly in\naccordance with such order, and provided further that the Recipient shall have given the Discloser prompt prior\nnotice of such order and of any request therefore and a reasonable opportunity, at the Discloser's expense, to object\nto or appeal from, or to require the Recipient to object to or appeal from, any such order or request therefore and/or\nto obtain a protective order with respect thereto.\n11. The dispute resolution provisions of the License Agreement shall apply to this schedule.	SCHEDULE A\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis non-disclosure Agreement (the "Agreement") is made and entered into as of the Effective Date of the Licensing\nAgreement entered into between HI-TEX, INC., a Michigan corporation (the "Licensor") and QUAKER FABRIC\nCORPORATION OF FALL RIVER, a Massachusetts company (the "Licensee").\nRecitals\nThe parties above have entered into a License Agreement (the "Business Relationship") which may involve the\ndisclosure by each party (the "Discloser") to the other party (the "Recipient") of confidential and proprietary information\nwhich is owned by the Discloser, its affiliates or third parties.\nAgreement\nNOW THEREFORE, in consideration of the mutual promises contained herein, the parties agree by their signature\non the License Agreement as follows:\nThe Confidential Information heretofore and hereafter to be exchanged between the parties is proprietary and\nconfidential to each of the parties, respectively, and is of significant importance and value to the parties and their\nrespective businesses. Accordingly, in order for the parties to facilitate their Business Relationship and to provide the\nbasis for them to furnish additional Confidential Information to each other, and in consideration thereof, the parties\nhereto have agreed as follows:\n1. During the course of disclosures hereunder and in perpetuity thereafter, each of the parties shall not, with respect\nto Confidential Information received by the Recipient the Discloser:\na. publish or disclose any Confidential Information heretofore or hereafter so received to anyone other than to\nonly those directors, officers, and employees of the Recipient who have a need to know such Confidential\nInformation in order to carry out the purpose of the disclosures contemplated by the parties; or\nb. directly or indirectly use any Confidential Information for the Recipient's own benefit (except to carry out the\npurposes of the disclosures described above) or for the benefit of any third-party.\n2. Each Recipient shall apply to Confidential Information such security procedures as it applies to like information of\nits own, provided that each Recipient shall in any event, at its own expense, provide a secure place for its retention and\nuse of Confidential Information and observe and comply with Paragraph 3 hereof.\n3. Each party has represented and warranted to and agreed with the other of them that each of its directors, officers\nand employees to whom Confidential Information is disclosed will be advised in advance of the terms of this Agreement\n4. Each party understands, acknowledges and agrees that Confidential Information is of great competitive as well as\nmonetary value to the other and that, therefore, each party has the right to bring an action to enjoin the improper use or\ndisclosure of Confidential Information, it being agreed that a suit for monetary damages alone would be an inadequate\nremedy.\n5. The parties agree to maintain any written record made of the other's Confidential Information as "Confidential."\n6. Upon termination of the License Agreement, the Recipient shall promptly return to the Discloser all documents or\nrecords and all copies thereof containing such Discloser's Confidential Information. All documents, memoranda, notes\nand other writings prepared by the Recipient on the basis of such Discloser's Confidential Information shall also be\nreturned to the Discloser promptly after such request or, in the alternative and promptly after such request, the Recipient\nshall destroy all of the foregoing and shall certify to the Discloser as to such destruction. The foregoing shall include,\nwithout limitation, all such records and other information in written, graphic, computer media or other form.\n7.\nNothing contained herein shall be construed to grant either party a license or right to use any Confidential\nInformation of the other, or a license under any patent, trademark, copyright, know-how or trade secret of either party,\nexcept as specifically provided in the course of the Business Relationship.\n8. "Confidential Information" is defined for purposes of this Agreement to include, but not to be limited to, any one\nor more of the following, which is designated as confidential by a party: trade secrets; customer lists; business plans,\nmethods and practices; marketing plans; non-public financial data; product specifications and designs; the existence,\nnature, substance, progress and results of research and development projects; inventions; discoveries; formulae;\nprocesses; drawings; documents; records; and/or any other information, whether similar to the specified information or\nnot. Confidential Information includes, without limitation, such of the foregoing as are developed by either party, alone\nor jointly with the other of them or others, whether or not in the course of the Business Relationship, as well as such of\nthe foregoing as either party may furnish to the other from time to time.\n9. Each of the parties acknowledges that Confidential Information will be furnished, or otherwise made available to\nthe other party incident to a relationship of trust and confidence.\n10 Anything herein to the contrary notwithstanding, neither of the parties, as Recipient, shall have any obligation of\nconfidentiality with respect to any Confidential Information which:\na. was already known to the Recipient prior to acquisition from, or disclosure by the Discloser; or\nb. is or becomes publicly known through no fault or act of the Recipient; or\nC. is rightfully received by the Recipient from a third-party not known by the Recipient to have an obligation of\nconfidentiality to the other party with respect thereto; or\nd. is approved to release by written authorization of the Discloser; or\ne. is developed by the Recipient, independently or jointly with others and, in either case, without use of or\nreference to Confidential Information of the other party hereto; or\nf. the Recipient is ordered by a court of competent jurisdiction to disclose, pursuant to an order from which no\nfurther\nright\nof\nappeal\nexists\nor\ncannot\nbe\nstayed\npending\nany\nsuch\nappeal;\nprovided\nsuch\ndisclosure\nis\nstrictly\nin\naccordance with such order, and provided further that the Recipient shall have given the Discloser prompt prior\nnotice of such order and of any request therefore and a reasonable opportunity, at the Discloser's expense, to object\nto or appeal from, or to require the Recipient to object to or appeal from, any such order or request therefore and/or\nto obtain a protective order with respect thereto.\n11. The dispute resolution provisions of the License Agreement shall apply to this schedule.	SCHEDULE A\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis non-disclosure Agreement (the “Agreement”) is made and entered into as of the Effective Date of the Licensing\nAgreement entered into between HI-TEX, INC., a Michigan corporation (the “Licensor”) and QUAKER FABRIC\nCORPORATION OF FALL RIVER, a Massachusetts company (the “Licensee”).\nRecitals\nThe parties above have entered into a License Agreement (the “Business Relationship”) which may involve the\ndisclosure by each party (the “Discloser”) to the other party (the “Recipient”) of confidential and proprietary information\nwhich is owned by the Discloser, its affiliates or third parties.\nAgreement\nNOW THEREFORE, in consideration of the mutual promises contained herein, the parties agree by their signature\non the License Agreement as follows:\nThe Confidential Information heretofore and hereafter to be exchanged between the parties is proprietary and\nconfidential to each of the parties, respectively, and is of significant importance and value to the parties and their\nrespective businesses. Accordingly, in order for the parties to facilitate their Business Relationship and to provide the\nbasis for them to furnish additional Confidential Information to each other, and in consideration thereof, the parties\nhereto have agreed as follows:\n1. During the course of disclosures hereunder and in perpetuity thereafter, each of the parties shall not, with respect\nto Confidential Information received by the Recipient the Discloser:\na. publish or disclose any Confidential Information heretofore or hereafter so received to anyone other than to\nonly those directors, officers, and employees of the Recipient who have a need to know such Confidential\nInformation in order to carry out the purpose of the disclosures contemplated by the parties; or\nb. directly or indirectly use any Confidential Information for the Recipient's own benefit (except to carry out the\npurposes of the disclosures described above) or for the benefit of any third-party.\n2. Each Recipient shall apply to Confidential Information such security procedures as it applies to like information of\nits own, provided that each Recipient shall in any event, at its own expense, provide a secure place for its retention and\nuse of Confidential Information and observe and comply with Paragraph 3 hereof.\n3. Each party has represented and warranted to and agreed with the other of them that each of its directors, officers\nand employees to whom Confidential Information is disclosed will be advised in advance of the terms of this Agreement.\n4. Each party understands, acknowledges and agrees that Confidential Information is of great competitive as well as\nmonetary value to the other and that, therefore, each party has the right to bring an action to enjoin the improper use or\ndisclosure of Confidential Information, it being agreed that a suit for monetary damages alone would be an inadequate\nremedy.\n5. The parties agree to maintain any written record made of the other's Confidential Information as “Confidential.”\n6. Upon termination of the License Agreement, the Recipient shall promptly return to the Discloser all documents or\nrecords and all copies thereof containing such Discloser's Confidential Information. All documents, memoranda, notes\nand other writings prepared by the Recipient on the basis of such Discloser's Confidential Information shall also be\nreturned to the Discloser promptly after such request or, in the alternative and promptly after such request, the Recipient\nshall destroy all of the foregoing and shall certify to the Discloser as to such destruction. The foregoing shall include,\nwithout limitation, all such records and other information in written, graphic, computer media or other form.\n7. Nothing contained herein shall be construed to grant either party a license or right to use any Confidential\nInformation of the other, or a license under any patent, trademark, copyright, know-how or trade secret of either party,\nexcept as specifically provided in the course of the Business Relationship.\n8. “Confidential Information” is defined for purposes of this Agreement to include, but not to be limited to, any one\nor more of the following, which is designated as confidential by a party: trade secrets; customer lists; business plans,\nmethods and practices; marketing plans; non-public financial data; product specifications and designs; the existence,\nnature, substance, progress and results of research and development projects; inventions; discoveries; formulae;\nprocesses; drawings; documents; records; and/or any other information, whether similar to the specified information or\nnot. Confidential Information includes, without limitation, such of the foregoing as are developed by either party, alone\nor jointly with the other of them or others, whether or not in the course of the Business Relationship, as well as such of\nthe foregoing as either party may furnish to the other from time to time.\n9. Each of the parties acknowledges that Confidential Information will be furnished, or otherwise made available to\nthe other party incident to a relationship of trust and confidence.\n10. Anything herein to the contrary notwithstanding, neither of the parties, as Recipient, shall have any obligation of\nconfidentiality with respect to any Confidential Information which:\na. was already known to the Recipient prior to acquisition from, or disclosure by the Discloser; or\nb. is or becomes publicly known through no fault or act of the Recipient; or\nc. is rightfully received by the Recipient from a third-party not known by the Recipient to have an obligation of\nconfidentiality to the other party with respect thereto; or\nd. is approved to release by written authorization of the Discloser; or\ne. is developed by the Recipient, independently or jointly with others and, in either case, without use of or\nreference to Confidential Information of the other party hereto; or\nf. the Recipient is ordered by a court of competent jurisdiction to disclose, pursuant to an order from which no\nfurther right of appeal exists or cannot be stayed pending any such appeal; provided such disclosure is strictly in\naccordance with such order, and provided further that the Recipient shall have given the Discloser prompt prior\nnotice of such order and of any request therefore and a reasonable opportunity, at the Discloser's expense, to object\nto or appeal from, or to require the Recipient to object to or appeal from, any such order or request therefore and/or\nto obtain a protective order with respect thereto.\n11. The dispute resolution provisions of the License Agreement shall apply to this schedule.
+6d64a41bd3e5c58b735d7832f2b30bdd.pdf	effective_date jurisdiction party term	EX-99.(D)(2)(I) 10 d344651dex99d2i.htm EX-(D)(2)(I)\nExhibit (d)(2)(i)\nGIGPEAK, INC.\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”), effective\n, 20 (“Effective Date”), is entered\ninto by and between GigPeak, Inc., a Delaware corporation having offices at 130 Baytech Drive, San Jose, CA 95134 (“GigPeak”),\nand Integrated Device Technology, Inc., a Delaware corporation having offices at 6024 Silver Creek Valley Road, San Jose, CA\n95138 (“IDT”) (each herein referred to individually as a “Party,” or collectively as the “Parties”). In consideration of the covenants\nand conditions contained herein, the Parties hereby agree to the following:\nPage 1\n1. PURPOSE\nThe Parties wish to explore a business opportunity of mutual interest (the\n“Opportunity”), and in connection with the Opportunity, each Party has disclosed, and\nmay further disclose certain confidential technical and business information (in such\ncapacity a Party disclosing the information, the “Discloser”) to the other Party (in such\ncapacity a Party receiving the information, the “Recipient”), that Discloser desires\nRecipient to treat as confidential.\n2. CONFIDENTIAL INFORMATION\nA. Definition.\n“ Confidential Information” means (a) any information disclosed\n(directly or indirectly) by Discloser to Recipient pursuant to this Agreement that is in\nwritten, graphic, machine readable or other tangible form objects (including, without\nlimitation, documents, software, prototypes, samples, data sets, and plant and\nequipment) and is marked “Confidential,” “Proprietary” or in some other manner to\nindicate its confidential nature; (b) oral information disclosed (directly or indirectly) by\nDiscloser to Recipient pursuant to this Agreement, provided that such information is\ndesignated as confidential at the time of disclosure and reduced to a written summary\nby Discloser that is marked in a manner to indicate its confidential nature and delivered\nto Recipient within thirty (30) days after its oral disclosure; and (c) information\notherwise reasonably expected to be treated in a confidential manner under the\ncircumstances of disclosure under this Agreement or by the nature of the information\nitself. Confidential Information may include information of a third party that is in the\npossession of Discloser and is disclosed to Recipient under this Agreement.\nB. Exceptions.\nConfidential Information shall not, however, include any\ninformation that (i) was publicly known or made generally available without a duty of\nconfidentiality prior to the time of disclosure by Discloser to Recipient; (ii) becomes\npublicly known or made generally available without a duty of confidentiality after\ndisclosure by Discloser to Recipient through no wrongful action or inaction of\nRecipient; (iii) is in the rightful possession of Recipient without confidentiality\nobligations at the time of disclosure by Discloser to Recipient as shown by Recipient’s\nthen-contemporaneous written files and records kept in the ordinary course of\nbusiness; (iv) is obtained by Recipient from a third party without an accompanying\nduty of confidentiality without a breach of such third party’s obligations of\nconfidentiality; or (v) is independently developed by Recipient without use of or\nreference to Discloser’s Confidential Information, as shown by written records and\nother competent evidence prepared contemporaneously with such independent\ndevelopment.\nC. Compelled Disclosure.\nIf Recipient becomes legally compelled to disclose\nany Confidential Information, other than pursuant to a confidentiality agreement,\nRecipient will provide Discloser prompt written notice, if legally permissible, and will\nuse its best efforts to assist Discloser in seeking a protective order or another\nappropriate remedy. If Discloser waives Recipient’s compliance with this Agreement\nor fails to obtain a protective order or other appropriate remedy, Recipient will furnish\nonly that portion of the Confidential\nInformation that is legally required to be disclosed, provided that any Confidential\nInformation so disclosed shall maintain its confidentiality protection for all purposes\nother than such legally compelled disclosure.\n3. NONUSE AND NONDISCLOSURE\nRecipient shall not use any Confidential Information of Discloser for any\npurpose except to evaluate and engage in discussions concerning the Opportunity.\nRecipient shall not disclose any Confidential Information of Discloser to third parties\nor to Recipient’s employees, except that, subject to Section 4 below, Recipient may\ndisclose Discloser ’s Confidential Information to those employees of Recipient who are\nrequired to have the information in order to evaluate or engage in discussions\nconcerning the Opportunity. Recipient shall not reverse engineer, disassemble, or\ndecompile any prototypes, software, samples, or other tangible objects that embody\nDiscloser’s Confidential Information and that are provided to Recipient under this\nAgreement.\n4. MAINTENANCE OF CONFIDENTIALITY\nRecipient shall take reasonable measures to protect the secrecy of and\navoid disclosure and unauthorized use of the Confidential Information of Discloser.\nWithout limiting the foregoing, Recipient shall take at least those measures that it\nemploys to protect its own confidential information of a similar nature and shall ensure\nthat its employees who have access to Confidential Information of Discloser have\nsigned a nonuse and nondisclosure agreement in content at least as protective of\nDiscloser’s Confidential Information as the provisions of this Agreement, prior to any\ndisclosure of Confidential Information to such employees. The Recipient shall not\nmake any copies of the Confidential Information of Discloser unless the same are\npreviously approved in writing by Discloser. The Recipient shall reproduce Discloser ’s\nproprietary rights notices on any such authorized copies in the same manner in which\nsuch notices were set forth in or on the original. The Recipient shall promptly notify\nDiscloser of any unauthorized use or disclosure, or suspected unauthorized use or\ndisclosure, of Discloser’s Confidential Information of which Recipient becomes aware.\n5. NO OBLIGATION\nNothing in this Agreement shall obligate either Party to (a) disclose any\nConfidential Information, which shall be disclosed, if at all, solely at the Discloser ’s\noption, or (b) proceed with any transaction between them, and each Party reserves the\nright, in its sole discretion, to terminate the discussions contemplated by this\nAgreement concerning the Opportunity. Nothing in this Agreement shall be construed\nto restrict either Party’s use or disclosure of its own Confidential Information.\n6. NO WARRANTY\nALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS .”\nNEITHER PARTY MAKES ANY WARRANTIES, EXPRESS , IMPLIED OR\nOTHERWISE, REGARDING THE\nIN WITNESS WHEREOF, the Parties by their duly authorized representatives have executed this Agreement as of the Effective Date.\nGIGPEAK, INC.\nINTEGRATED DEVICE TECHNOLOGY, INC.\nBy:\n/s/ Avi Katz\nBy:\n/s/ Sailesh Chittipeddi\nName: Avi Katz\nName: Sailesh Chittipeddi\nTitle:\nCEO 1/11/17\nTitle: CTO & Global Operations VP\nPage 2\nACCURACY, COMPLETENESS OR PERFORMANCE OF ANY CONFIDENTIAL\nINFORMATION, OR WITH RESPECT TO NON-INFRINGEMENT OR OTHER\nVIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD\nPARTY OR OF RECIPIENT.\n7. RETURN OF MATERIALS\nAll documents and other tangible objects containing or representing\nConfidential Information that have been disclosed by Discloser to Recipient, and all\ncopies or extracts thereof or notes derived therefrom that are in the possession of\nRecipient, shall be and remain the property of Discloser and shall be promptly returned\nto Discloser or destroyed (with proof of such destruction), each upon Discloser’s\nwritten request.\n8. NO LICENSE\nNothing in this Agreement is intended to grant any rights to Recipient\nunder any patent, mask work right, copyright or other intellectual property right of\nDiscloser, nor shall this Agreement grant Recipient any rights in or to the Confidential\nInformation of Discloser other than the limited right to review such Confidential\nInformation solely for the purpose of determining whether to enter into a transaction\nconcerning the Opportunity as expressly set forth in Section 3 of this Agreement.\n9. EXPORT RESTRICTIONS\nAny software and other technical information disclosed under this\nAgreement may be subject to restrictions and controls imposed by the Export\nAdministration Act, Export Administration Regulations and other laws and regulations\nof the United States and any other applicable government or jurisdiction, as enacted\nfrom time to time (the “Acts”). The Parties shall comply with all restrictions and\ncontrols imposed by the Acts.\n10. TERM\nThe obligations of Recipient under this Agreement shall survive until such\ntime as all Confidential Information of Discloser hereunder qualifies as any of the\nexceptions to Confidential Information set forth in Section 2.B through no wrongful\naction or inaction of Recipient.\n11. REMEDIES\nRecipient agrees that any violation or threatened violation of this\nAgreement may cause irreparable injury to Discloser, entitling Discloser to seek\ninjunctive relief in addition to all legal remedies.\n12. MISCELLANEOUS\nThis Agreement shall bind and inure to the benefit of the Parties and their\nrespective successors and permitted assigns. Neither Party may assign or otherwise\ntransfer this Agreement without the prior written consent of the other Party, except that\neither Party may assign this Agreement without consent in connection with a merger,\nreorganization, consolidation, or sale of all or substantially all of the assets to which\nthis Agreement pertains, provided that the assigning Party provides prompt written\nnotice to the other Party prior to any such permitted assignment. Any assignment or\ntransfer of this Agreement in violation of the foregoing shall be null and void. This\nAgreement will be interpreted and construed in accordance with the laws of the State\nof California, without regard to conflict of law principles. Each Party hereby represents\nand warrants that the persons executing this Agreement on its behalf have express\nauthority to do so, and, in so doing, to bind such Party thereto. This Agreement\ncontains the entire agreement between the Parties with respect to the Opportunity and\nsupersedes all prior written and oral agreements between the Parties regarding the\nOpportunity. Recipient shall not have any obligation, express or implied by law, with\nrespect to trade secret or proprietary information of Discloser disclosed under this\nAgreement except as set forth herein. If a court or other body of competent jurisdiction\nfinds, or the Parties mutually believe, any provision of this Agreement, or portion\nthereof, to be invalid or unenforceable, such provision will be enforced to the\nmaximum extent permissible so as to effect the intent of the Parties, and the remainder\nof this Agreement will continue in full force and effect. No provision of this\nAgreement may be waived except by a writing executed by the Party against whom the\nwaiver is to be effective. A Party’s failure to enforce any provision of this Agreement\nshall neither be construed as a waiver of the provision nor prevent the Party from\nenforcing any other provision of this Agreement. No provision of this Agreement may\nbe amended or otherwise modified except by a writing signed by the Parties to this\nAgreement. The Parties may execute this Agreement in counterparts, each of which is\ndeemed an original, but all of which together constitute one and the same agreement.\nThis Agreement may be delivered by facsimile transmission, and facsimile copies of\nexecuted signature pages shall be binding as originals.\n13. DISPUTES\nAll disputes arising out of this Agreement will be subject to the exclusive\njurisdiction and venue of the state courts located in Santa Clara County, California and\nthe federal courts located in the Northern District of California and each Party hereby\nconsents to the personal jurisdiction thereof.	EX-99.(D)(2)(I) 10 d344651dex99d2i.htm EX-(D)(2)(1)\nExhibit (d)(2)(i)\nGIGPEAK, INC. MUTUAL NONDISCIL.OSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”), effective , 20 (“Effective Date”), is entered\ninto by and between GigPeak, Inc., a Delaware corporation having offices at 130 Baytech Drive, San Jose, CA 95134 (“GigPeak”), and Integrated Device Technology, Inc., a Delaware corporation having offices at 6024 Silver Creek Valley Road, San Jose, CA 95138 (“IDT™) (each herein referred to individually as a “Party,” or collectively as the “Parties”). In consideration of the covenants and conditions contained herein, the Parties hereby agree to the following: 1. PURPOSE\nThe Parties wish to explore a business opportunity of mutual interest (the\n“Opportunity”), and in connection with the Opportunity, each Party has disclosed, and\nmay further disclose certain confidential technical and business information (in such\ncapacity a Party disclosing the information, the “Discloser”) to the other Party (in such\ncapacity a Party receiving the information, the “Recipient”), that Discloser desires\nRecipient to treat as confidential.\n2. CONFIDENTIAL INFORMATION\nA. Definition. “Confidential Information” means (a) any information disclosed\n(directly or indirectly) by Discloser to Recipient pursuant to this Agreement that is in\nwritten, graphic, machine readable or other tangible form objects (including, without\nlimitation, documents, software, prototypes, samples, data sets, and plant and\nequipment) and is marked “Confidential,” “Proprietary” or in some other manner to\nindicate its confidential nature; (b) oral information disclosed (directly or indirectly) by\nDiscloser to Recipient pursuant to this Agreement, provided that such information is\ndesignated as confidential at the time of disclosure and reduced to a written summary\nby Discloser that is marked in a manner to indicate its confidential nature and delivered\nto Recipient within thirty (30) days after its oral disclosure; and (c) information\notherwise reasonably expected to be treated in a confidential manner under the\ncircumstances of disclosure under this Agreement or by the nature of the information\nitself. Confidential Information may include information of a third party that is in the\npossession of Discloser and is disclosed to Recipient under this Agreement.\nB.  Exceptions. Confidential Information shall not, however, include any\ninformation that (i) was publicly known or made generally available without a duty of\nconfidentiality prior to the time of disclosure by Discloser to Recipient; (ii) becomes\npublicly known or made generally available without a duty of confidentiality after\ndisclosure by Discloser to Recipient through no wrongful action or inaction of\nRecipient; (iii) is in the rightful possession of Recipient without confidentiality\nobligations at the time of disclosure by Discloser to Recipient as shown by Recipient’s\nthen-contemporaneous written files and records kept in the ordinary course of\nbusiness; (iv) is obtained by Recipient from a third party without an accompanying\nduty of confidentiality without a breach of such third party’s obligations of\nconfidentiality; or (v) is independently developed by Recipient without use of or\nreference to Discloser’s Confidential Information, as shown by written records and\nother competent evidence prepared contemporaneously with such independent\ndevelopment.\nC. Compelled Disclosure. If Recipient becomes legally compelled to disclose\nany Confidential Information, other than pursuant to a confidentiality agreement,\nRecipient will provide Discloser prompt written notice, if legally permissible, and will\nuse its best efforts to assist Discloser in seeking a protective order or another\nappropriate remedy. If Discloser waives Recipient’s compliance with this Agreement\nor fails to obtain a protective order or other appropriate remedy, Recipient will furnish\nonly that portion of the Confidential\nInformation that is legally required to be disclosed, provided that any Confidential\nInformation so disclosed shall maintain its confidentiality protection for all purposes\nother than such legally compelled disclosure.\n3. NONUSE AND NONDISCLOSURE\nRecipient shall not use any Confidential Information of Discloser for any\npurpose except to evaluate and engage in discussions concerning the Opportunity.\nRecipient shall not disclose any Confidential Information of Discloser to third parties\nor to Recipient’s employees, except that, subject to Section 4 below, Recipient may\ndisclose Discloser’s Confidential Information to those employees of Recipient who are\nrequired to have the information in order to evaluate or engage in discussions\nconcerning the Opportunity. Recipient shall not reverse engineer, disassemble, or\ndecompile any prototypes, software, samples, or other tangible objects that embody\nDiscloser’s Confidential Information and that are provided to Recipient under this\nAgreement.\n4. MAINTENANCE OF CONFIDENTIALITY\nRecipient shall take reasonable measures to protect the secrecy of and\navoid disclosure and unauthorized use of the Confidential Information of Discloser.\nWithout limiting the foregoing, Recipient shall take at least those measures that it\nemploys to protect its own confidential information of a similar nature and shall ensure\nthat its employees who have access to Confidential Information of Discloser have\nsigned a nonuse and nondisclosure agreement in content at least as protective of\nDiscloser’s Confidential Information as the provisions of this Agreement, prior to any\ndisclosure of Confidential Information to such employees. The Recipient shall not\nmake any copies of the Confidential Information of Discloser unless the same are\npreviously approved in writing by Discloser. The Recipient shall reproduce Discloser’s\nproprietary rights notices on any such authorized copies in the same manner in which\nsuch notices were set forth in or on the original. The Recipient shall promptly notify\nDiscloser of any unauthorized use or disclosure, or suspected unauthorized use or\ndisclosure, of Discloser’s Confidential Information of which Recipient becomes aware.\n5. NO OBLIGATION\nNothing in this Agreement shall obligate either Party to (a) disclose any\nConfidential Information, which shall be disclosed, if at all, solely at the Discloser’s\noption, or (b) proceed with any transaction between them, and each Party reserves the\nright, in its sole discretion, to terminate the discussions contemplated by this\nAgreement concerning the Opportunity. Nothing in this Agreement shall be construed\nto restrict either Party’s use or disclosure of its own Confidential Information.\n6. NO WARRANTY\nALL CONFIDENTIAL INFORMATION IS PROVIDED “AS 1IS.”\nNEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR\nOTHERWISE, REGARDING THE\nPage 1\fACCURACY, COMPLETENESS OR PERFORMANCE OF ANY CONFIDENTIAL\nINFORMATION, OR WITH RESPECT TO NON-INFRINGEMENT OR OTHER\nVIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD\nPARTY OR OF RECIPIENT.\n7. RETURN OF MATERIALS\nAll documents and other tangible objects containing or representing\nConfidential Information that have been disclosed by Discloser to Recipient, and all\ncopies or extracts thereof or notes derived therefrom that are in the possession of\nRecipient, shall be and remain the property of Discloser and shall be promptly returned\nto Discloser or destroyed (with proof of such destruction), each upon Discloser’s\nwritten request.\n8. NO LICENSE\nNothing in this Agreement is intended to grant any rights to Recipient\nunder any patent, mask work right, copyright or other intellectual property right of\nDiscloser, nor shall this Agreement grant Recipient any rights in or to the Confidential\nInformation of Discloser other than the limited right to review such Confidential\nInformation solely for the purpose of determining whether to enter into a transaction\nconcerning the Opportunity as expressly set forth in Section 3 of this Agreement.\n9. EXPORT RESTRICTIONS\nAny software and other technical information disclosed under this\nAgreement may be subject to restrictions and controls imposed by the Export\nAdministration Act, Export Administration Regulations and other laws and regulations\nof the United States and any other applicable government or jurisdiction, as enacted\nfrom time to time (the “Acts”). The Parties shall comply with all restrictions and\ncontrols imposed by the Acts.\n10. TERM\nThe obligations of Recipient under this Agreement shall survive until such\ntime as all Confidential Information of Discloser hereunder qualifies as any of the\nexceptions to Confidential Information set forth in Section 2.B through no wrongful\naction or inaction of Recipient.\n11. REMEDIES\nRecipient agrees that any violation or threatened violation of this\nAgreement may cause irreparable injury to Discloser, entitling Discloser to seek\ninjunctive relief in addition to all legal remedies.\n12. MISCELLANEOUS\nThis Agreement shall bind and inure to the benefit of the Parties and their\nrespective successors and permitted assigns. Neither Party may assign or otherwise\ntransfer this Agreement without the prior written consent of the other Party, except that\neither Party may assign this Agreement without consent in connection with a merger,\nreorganization, consolidation, or sale of all or substantially all of the assets to which\nthis Agreement pertains, provided that the assigning Party provides prompt written\nnotice to the other Party prior to any such permitted assignment. Any assignment or\ntransfer of this Agreement in violation of the foregoing shall be null and void. This\nAgreement will be interpreted and construed in accordance with the laws of the State\nof California, without regard to conflict of law principles. Each Party hereby represents\nand warrants that the persons executing this Agreement on its behalf have express\nauthority to do so, and, in so doing, to bind such Party thereto. This Agreement\ncontains the entire agreement between the Parties with respect to the Opportunity and\nsupersedes all prior written and oral agreements between the Parties regarding the\nOpportunity. Recipient shall not have any obligation, express or implied by law, with\nrespect to trade secret or proprietary information of Discloser disclosed under this\nAgreement except as set forth herein. If a court or other body of competent jurisdiction\nfinds, or the Parties mutually believe, any provision of this Agreement, or portion\nthereof, to be invalid or unenforceable, such provision will be enforced to the\nmaximum extent permissible so as to effect the intent of the Parties, and the remainder\nof this Agreement will continue in full force and effect. No provision of this\nAgreement may be waived except by a writing executed by the Party against whom the\nwaiver is to be effective. A Party’s failure to enforce any provision of this Agreement\nshall neither be construed as a waiver of the provision nor prevent the Party from\nenforcing any other provision of this Agreement. No provision of this Agreement may\nbe amended or otherwise modified except by a writing signed by the Parties to this\nAgreement. The Parties may execute this Agreement in counterparts, each of which is\ndeemed an original, but all of which together constitute one and the same agreement.\nThis Agreement may be delivered by facsimile transmission, and facsimile copies of\nexecuted signature pages shall be binding as originals.\n13. DISPUTES\nAll disputes arising out of this Agreement will be subject to the exclusive\njurisdiction and venue of the state courts located in Santa Clara County, California and\nthe federal courts located in the Northern District of California and each Party hereby\nconsents to the personal jurisdiction thereof.\nIN WITNESS WHEREOF, the Parties by their duly authorized representatives have executed this Agreement as of the Effective Date. GIGPEAK, INC.\nINTEGRATED DEVICE TECHNOLOGY, INC.\nBy: /s/ Avi Katz By: /s/ Sailesh Chittipeddi\nName:  Avi Katz Name: Sailesh Chittipeddi\nTitle: CEO 1/11/17 Title:  CTO & Global Operations VP\nPage 2	EX-99.(D)(2)(I) 10 d344651dex99d2i.htm EX-(D)(2)(I)\nExhibit (d)(2)(i)\nGIGPEAK,. INC.\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this "Agreement"), effective\n20 ("Effective Date"), is entered\ninto by and between GigPeak, Inc., a Delaware corporation having offices at 130 Baytech Drive, San Jose, CA 95134 ("GigPeak"),\nand Integrated Device Technology, Inc., a Delaware corporation having offices at 6024 Silver Creek Valley Road, San Jose, CA\n95138 ("IDT") (each herein referred to individually as a "Party," or collectively as the "Parties"). In consideration of the covenants\nand conditions contained herein, the Parties hereby agree to the following:\n1. PURPOSE\nInformation that is legally required to be disclosed, provided that any Confidential\nThe Parties wish to explore a business opportunity of mutual interest (the\nInformation so disclosed shall maintain its confidentiality protection for all purposes\n"Opportunity"), and in connection with the Opportunity, each Party has disclosed, and\nother than such legally compelled disclosure.\nmay further disclose certain confidential technica and business information (in such\n3.\nNONUSE AND NONDISCLOSURE\ncapacity a Party disclosing the information, the "Discloser") to the other Party (in such\ncapacity a Party receiving the information, the "Recipient"), that Discloser desires\nRecipient shall not use any Confidential Information of Discloser for any\nRecipient to treat as confidential.\npurpose except to evaluate and engage in discussions concerning the Opportunity.\nRecipient shall not disclose any Confidential Information of Discloser to third parties\n2.\nCONFIDENTIAL INFORMATION\nor to Recipient's employees, except that, subject to Section 4 below, Recipient may\nA. Definition. "Confidential Information" means (a) any information disclosed\ndisclose Discloser's Confidential Information to those employees of Recipient who are\n(directly or indirectly) by Discloser to Recipient pursuant to this Agreement that is in\nrequired to have the information in order to evaluate or engage in discussions\nwritten, graphic, machine readable or other tangible form objects (including, without\nconcerning the Opportunity. Recipient shall not reverse engineer, disassemble, or\nlimitation, documents, software, prototypes, samples, data sets, and plant and\ndecompile any prototypes, software, samples, or other tangible objects that embody\nequipment) and is marked "Confidential," "Proprietary" or in some other manner to\nDiscloser's Confidential Information and that are provided to Recipient under this\nindicate its confidential nature; (b) oral information disclosed (directly or indirectly) by\nAgreement.\nDiscloser to Recipient pursuant to this Agreement, provided that such information is\n4.\nMAINTENANCE OF CONFIDENTIALITY\ndesignated as confidential at the time of disclosure and reduced to a written summary\nby Discloser that is marked in a manner to indicate its confidential nature and delivered\nRecipient shall take reasonable measures to protect the secrecy of and\nto Recipient within thirty (30) days after its oral disclosure; and (c) information\navoid disclosure and unauthorized use of the Confidential Information of Discloser.\notherwise reasonably expected to be treated in a confidential manner under the\nWithout limiting the foregoing, Recipient shall take at least those measures that it\ncircumstances of disclosure under this Agreement or by the nature of the information\nemploys to protect its own confidential information of a similar nature and shall ensure\nitself. Confidential Information may include information of a third party that is in the\nthat its employees who have access to Confidential Information of Discloser have\npossession of Discloser and is disclosed to Recipient under this Agreement.\nsigned a nonuse and nondisclosure agreement in content at least as protective of\nDiscloser's Confidential Information as the provisions of this Agreement, prior to any\nB. Exceptions.\nConfidential Information shall not, however, include any\ndisclosure of Confidential Information to such employees. The Recipient shall not\ninformation that (i) was publicly known or made generally available without a duty of\nmake any copies of the Confidential Information of Discloser unless the same are\nconfidentiality prior to the time of disclosure by Discloser to Recipient; (ii) becomes\npreviously approved in writing by Discloser. The Recipient shall reproduce Discloser's\npublicly known or made generally available without a duty of confidentiality after\nproprietary rights notices on any such authorized copies in the same manner in which\ndisclosure by Discloser to Recipient through no wrongful action or inaction of\nsuch notices were set forth in or on the original. The Recipient shall promptly notify\nRecipient; (iii) is in the rightful possession of Recipient without confidentiality\nDiscloser of any unauthorized use or disclosure, or suspected unauthorized use or\nobligations at the time of disclosure by Discloser to Recipient as shown by Recipient's\ndisclosure, of Discloser's Confidential Information of which Recipient becomes aware.\nthen-contemporaneous written files and records kept in the ordinary course of\nbusiness; (iv) is obtained by Recipient from a third party without an accompanying\n5.\nNo OBLIGATION\nduty of confidentiality without a breach of such third party's obligations of\nconfidentiality; or (v) is independently developed by Recipient without use of or\nNothing in this Agreement shall obligate either Party to (a) disclose any\nreference to Discloser's Confidential Information, as shown by written records and\nConfidential Information, which shall be disclosed, if at all, solely at the Discloser's\nother competent evidence prepared contemporaneously with such independent\noption, or (b) proceed with any transaction between them, and each Party reserves the\ndevelopment.\nright, in its sole discretion, to terminate the discussions contemplated by this\nAgreement concerning the Opportunity Nothing in this Agreement shall be construed\nC.\nCompelled Disclosure.\nIf Recipient becomes legally compelled to disclose\nto restrict either Party's use or disclosure of its own Confidential Information.\nany Confidential Information, other than pursuant to a confidentiality agreement,\nRecipient will provide Discloser prompt written notice, if legally permissible, and will\n6.\nNo WARRANTY\nuse its best efforts to assist Discloser in seeking a protective order or another\nappropriate remedy. If Discloser waives Recipient's compliance with this Agreement\nALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS."\nor fails to obtain a protective order or other appropriate remedy, Recipient will furnish\nNEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR\nonly that portion of the Confidential\nOTHERWISE, REGARDING THE\nPage 1\nACCURACY, COMPLETENESS OR PERFORMANCE OF ANY CONFIDENTIAL\n12. MISCELLANEOUS\nINFORMATION, OR WITH RESPECT TO NON-INFRINGEMENT OR OTHER\nVIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD\nThis Agreement shall bind and inure to the benefit of the Parties and their\nPARTY OR OF RECIPIENT.\nrespective successors and permitted assigns. Neither Party may assign or otherwise\ntransfer this Agreement without the prior written consent of the other Party, except that\n7.\nRETURN OF MATERIALS\neither Party may assign this Agreement without consent in connection with a merger,\nreorganization, consolidation, or sale of all or substantially all of the assets to which\nAll documents and other tangible objects containing or representing\nthis Agreement pertains, provided that the assigning Party provides prompt written\nConfidential Information that have been disclosed by Discloser to Recipient, and all\nnotice to the other Party prior to any such permitted assignment. Any assignment or\ncopies or extracts thereof or notes derived therefrom that are in the possession of\ntransfer of this Agreement in violation of the foregoing shall be null and void. This\nRecipient, shall be and remain the property of Discloser and shall be promptly returned\nAgreement will be interpreted and construed in accordance with the laws of the State\nto Discloser or destroyed (with proof of such destruction), each upon Discloser's\nof\nCalifornia,\nwithout\nregard\nto\nconflict\nof\nlaw\nprinciples.\nEach\nParty\nhereby\nrepresents\nwritten request.\nand warrants that the persons executing this Agreement on its behalf have express\n8.\nNo LICENSE\nauthority to do so, and, in so doing, to bind such Party thereto. This Agreement\ncontains the entire agreement between the Parties with respect to the Opportunity and\nNothing in this Agreement is intended to grant any rights to Recipient\nsupersedes all prior written and oral agreements between the Parties regarding the\nunder any patent, mask work right, copyright or other intellectual property right of\nOpportunity. Recipient shall not have any obligation, express or implied by law, with\nDiscloser, nor shall this Agreement grant Recipient any rights in or to the Confidential\nrespect to trade secret or proprietary information of Discloser disclosed under this\nInformation of Discloser other than the limited right to review such Confidentia\nAgreement except as set forth herein. If a court or other body of competent jurisdiction\nInformation solely for the purpose of determining whether to enter into a transaction\nfinds, or the Parties mutually believe, any provision of this Agreement, or portion\nconcerning the Opportunity as expressly set forth in Section 3 of this Agreement.\nthereof, to be invalid or unenforceable, such provision will be enforced to the\nmaximum extent permissible so as to effect the intent of the Parties, and the remainder\n9.\nExPoRT RESTRICTIONS\nof this Agreement will continue in full force and effect. No provision of this\nAgreement may be waived except by a writing executed by the Party against whom the\nAny software and other technical information disclosed under this\nwaiver is to be effective. A Party's failure to enforce any provision of this Agreement\nAgreement may be subject to restrictions and controls imposed by the Export\nshall neither be construed as a waiver of the provision nor prevent the Party from\nAdministration Act, Export Administration Regulations and other laws and regulations\nenforcing any other provision of this Agreement. No provision of this Agreement may\nof the United States and any other applicable government or jurisdiction, as enacted\nbe amended or otherwise modified except by a writing signed by the Parties to this\nfrom time to time (the "Acts"). The Parties shall comply with all restrictions and\nAgreement. The Parties may execute this Agreement in counterparts, each of which is\ncontrols imposed by the Acts.\ndeemed an original, but all of which together constitute one and the same agreement.\nThis Agreement may be delivered by facsimile transmission, and facsimile copies of\n10. TERM\nexecuted signature pages shall be binding as originals.\nThe obligations of Recipient under this Agreement shall survive until such\ntime as all Confidential Information of Discloser hereunder qualifies as any of the\n13. DISPUTES\nexceptions to Confidential Information set forth in Section 2.B through no wrongful\nAll disputes arising out of this Agreement will be subject to the exclusive\naction or inaction of Recipient.\njurisdiction and venue of the state courts located in Santa Clara County, California and\n11. REMEDIES\nthe federal courts located in the Northern District of California and each Party hereby\nconsents to the personal jurisdiction thereof.\nRecipient agrees that any violation or threatened violation of this\nAgreement may cause irreparable injury to Discloser, entitling Discloser to seek\ninjunctive relief in addition to all legal remedies.\nIN\nWITNESS WHEREOF, the Parties by their duly authorized representatives have executed this Agreement as of the Effective Date.\nGIGPEAK, INC.\nINTEGRATED DEVICE TECHNOLOGY, INC.\nBy:\n/s/ Avi Katz\nBy:\n/s/ Sailesh Chittipeddi\nName:\nAvi Katz\nName: Sailesh Chittipeddi\nTitle:\nCEO 1/11/17\nTitle:\nCTO & Global Operations VP\nPage 2	EX-99.(D)(2)(I) 10 d344651dex99d2i.htm EX-(D)(2)(I)\nExhibit (d)(2)(i)\nGIGPEAK, INC.\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”), effective\n, 20 (“Effective Date”), is entered\ninto by and between GigPeak, Inc., a Delaware corporation having offices at 130 Baytech Drive, San Jose, CA 95134 (“GigPeak”),\nand Integrated Device Technology, Inc., a Delaware corporation having offices at 6024 Silver Creek Valley Road, San Jose, CA\n95138 (“IDT”) (each herein referred to individually as a “Party,” or collectively as the “Parties”). In consideration of the covenants\nand conditions contained herein, the Parties hereby agree to the following:\nPage 1\n1. PURPOSE\nThe Parties wish to explore a business opportunity of mutual interest (the\n“Opportunity”), and in connection with the Opportunity, each Party has disclosed, and\nmay further disclose certain confidential technical and business information (in such\ncapacity a Party disclosing the information, the “Discloser”) to the other Party (in such\ncapacity a Party receiving the information, the “Recipient”), that Discloser desires\nRecipient to treat as confidential.\n2. CONFIDENTIAL INFORMATION\nA. Definition.\n“ Confidential Information” means (a) any information disclosed\n(directly or indirectly) by Discloser to Recipient pursuant to this Agreement that is in\nwritten, graphic, machine readable or other tangible form objects (including, without\nlimitation, documents, software, prototypes, samples, data sets, and plant and\nequipment) and is marked “Confidential,” “Proprietary” or in some other manner to\nindicate its confidential nature; (b) oral information disclosed (directly or indirectly) by\nDiscloser to Recipient pursuant to this Agreement, provided that such information is\ndesignated as confidential at the time of disclosure and reduced to a written summary\nby Discloser that is marked in a manner to indicate its confidential nature and delivered\nto Recipient within thirty (30) days after its oral disclosure; and (c) information\notherwise reasonably expected to be treated in a confidential manner under the\ncircumstances of disclosure under this Agreement or by the nature of the information\nitself. Confidential Information may include information of a third party that is in the\npossession of Discloser and is disclosed to Recipient under this Agreement.\nB. Exceptions.\nConfidential Information shall not, however, include any\ninformation that (i) was publicly known or made generally available without a duty of\nconfidentiality prior to the time of disclosure by Discloser to Recipient; (ii) becomes\npublicly known or made generally available without a duty of confidentiality after\ndisclosure by Discloser to Recipient through no wrongful action or inaction of\nRecipient; (iii) is in the rightful possession of Recipient without confidentiality\nobligations at the time of disclosure by Discloser to Recipient as shown by Recipient’s\nthen-contemporaneous written files and records kept in the ordinary course of\nbusiness; (iv) is obtained by Recipient from a third party without an accompanying\nduty of confidentiality without a breach of such third party’s obligations of\nconfidentiality; or (v) is independently developed by Recipient without use of or\nreference to Discloser’s Confidential Information, as shown by written records and\nother competent evidence prepared contemporaneously with such independent\ndevelopment.\nC. Compelled Disclosure.\nIf Recipient becomes legally compelled to disclose\nany Confidential Information, other than pursuant to a confidentiality agreement,\nRecipient will provide Discloser prompt written notice, if legally permissible, and will\nuse its best efforts to assist Discloser in seeking a protective order or another\nappropriate remedy. If Discloser waives Recipient’s compliance with this Agreement\nor fails to obtain a protective order or other appropriate remedy, Recipient will furnish\nonly that portion of the Confidential\nInformation that is legally required to be disclosed, provided that any Confidential\nInformation so disclosed shall maintain its confidentiality protection for all purposes\nother than such legally compelled disclosure.\n3. NONUSE AND NONDISCLOSURE\nRecipient shall not use any Confidential Information of Discloser for any\npurpose except to evaluate and engage in discussions concerning the Opportunity.\nRecipient shall not disclose any Confidential Information of Discloser to third parties\nor to Recipient’s employees, except that, subject to Section 4 below, Recipient may\ndisclose Discloser ’s Confidential Information to those employees of Recipient who are\nrequired to have the information in order to evaluate or engage in discussions\nconcerning the Opportunity. Recipient shall not reverse engineer, disassemble, or\ndecompile any prototypes, software, samples, or other tangible objects that embody\nDiscloser’s Confidential Information and that are provided to Recipient under this\nAgreement.\n4. MAINTENANCE OF CONFIDENTIALITY\nRecipient shall take reasonable measures to protect the secrecy of and\navoid disclosure and unauthorized use of the Confidential Information of Discloser.\nWithout limiting the foregoing, Recipient shall take at least those measures that it\nemploys to protect its own confidential information of a similar nature and shall ensure\nthat its employees who have access to Confidential Information of Discloser have\nsigned a nonuse and nondisclosure agreement in content at least as protective of\nDiscloser’s Confidential Information as the provisions of this Agreement, prior to any\ndisclosure of Confidential Information to such employees. The Recipient shall not\nmake any copies of the Confidential Information of Discloser unless the same are\npreviously approved in writing by Discloser. The Recipient shall reproduce Discloser ’s\nproprietary rights notices on any such authorized copies in the same manner in which\nsuch notices were set forth in or on the original. The Recipient shall promptly notify\nDiscloser of any unauthorized use or disclosure, or suspected unauthorized use or\ndisclosure, of Discloser’s Confidential Information of which Recipient becomes aware.\n5. NO OBLIGATION\nNothing in this Agreement shall obligate either Party to (a) disclose any\nConfidential Information, which shall be disclosed, if at all, solely at the Discloser ’s\noption, or (b) proceed with any transaction between them, and each Party reserves the\nright, in its sole discretion, to terminate the discussions contemplated by this\nAgreement concerning the Opportunity. Nothing in this Agreement shall be construed\nto restrict either Party’s use or disclosure of its own Confidential Information.\n6. NO WARRANTY\nALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS .”\nNEITHER PARTY MAKES ANY WARRANTIES, EXPRESS , IMPLIED OR\nOTHERWISE, REGARDING THE\nIN WITNESS WHEREOF, the Parties by their duly authorized representatives have executed this Agreement as of the Effective Date.\nGIGPEAK, INC.\nINTEGRATED DEVICE TECHNOLOGY, INC.\nBy:\n/s/ Avi Katz\nBy:\n/s/ Sailesh Chittipeddi\nName: Avi Katz\nName: Sailesh Chittipeddi\nTitle:\nCEO 1/11/17\nTitle: CTO & Global Operations VP\nPage 2\nACCURACY, COMPLETENESS OR PERFORMANCE OF ANY CONFIDENTIAL\nINFORMATION, OR WITH RESPECT TO NON-INFRINGEMENT OR OTHER\nVIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD\nPARTY OR OF RECIPIENT.\n7. RETURN OF MATERIALS\nAll documents and other tangible objects containing or representing\nConfidential Information that have been disclosed by Discloser to Recipient, and all\ncopies or extracts thereof or notes derived therefrom that are in the possession of\nRecipient, shall be and remain the property of Discloser and shall be promptly returned\nto Discloser or destroyed (with proof of such destruction), each upon Discloser’s\nwritten request.\n8. NO LICENSE\nNothing in this Agreement is intended to grant any rights to Recipient\nunder any patent, mask work right, copyright or other intellectual property right of\nDiscloser, nor shall this Agreement grant Recipient any rights in or to the Confidential\nInformation of Discloser other than the limited right to review such Confidential\nInformation solely for the purpose of determining whether to enter into a transaction\nconcerning the Opportunity as expressly set forth in Section 3 of this Agreement.\n9. EXPORT RESTRICTIONS\nAny software and other technical information disclosed under this\nAgreement may be subject to restrictions and controls imposed by the Export\nAdministration Act, Export Administration Regulations and other laws and regulations\nof the United States and any other applicable government or jurisdiction, as enacted\nfrom time to time (the “Acts”). The Parties shall comply with all restrictions and\ncontrols imposed by the Acts.\n10. TERM\nThe obligations of Recipient under this Agreement shall survive until such\ntime as all Confidential Information of Discloser hereunder qualifies as any of the\nexceptions to Confidential Information set forth in Section 2.B through no wrongful\naction or inaction of Recipient.\n11. REMEDIES\nRecipient agrees that any violation or threatened violation of this\nAgreement may cause irreparable injury to Discloser, entitling Discloser to seek\ninjunctive relief in addition to all legal remedies.\n12. MISCELLANEOUS\nThis Agreement shall bind and inure to the benefit of the Parties and their\nrespective successors and permitted assigns. Neither Party may assign or otherwise\ntransfer this Agreement without the prior written consent of the other Party, except that\neither Party may assign this Agreement without consent in connection with a merger,\nreorganization, consolidation, or sale of all or substantially all of the assets to which\nthis Agreement pertains, provided that the assigning Party provides prompt written\nnotice to the other Party prior to any such permitted assignment. Any assignment or\ntransfer of this Agreement in violation of the foregoing shall be null and void. This\nAgreement will be interpreted and construed in accordance with the laws of the State\nof California, without regard to conflict of law principles. Each Party hereby represents\nand warrants that the persons executing this Agreement on its behalf have express\nauthority to do so, and, in so doing, to bind such Party thereto. This Agreement\ncontains the entire agreement between the Parties with respect to the Opportunity and\nsupersedes all prior written and oral agreements between the Parties regarding the\nOpportunity. Recipient shall not have any obligation, express or implied by law, with\nrespect to trade secret or proprietary information of Discloser disclosed under this\nAgreement except as set forth herein. If a court or other body of competent jurisdiction\nfinds, or the Parties mutually believe, any provision of this Agreement, or portion\nthereof, to be invalid or unenforceable, such provision will be enforced to the\nmaximum extent permissible so as to effect the intent of the Parties, and the remainder\nof this Agreement will continue in full force and effect. No provision of this\nAgreement may be waived except by a writing executed by the Party against whom the\nwaiver is to be effective. A Party’s failure to enforce any provision of this Agreement\nshall neither be construed as a waiver of the provision nor prevent the Party from\nenforcing any other provision of this Agreement. No provision of this Agreement may\nbe amended or otherwise modified except by a writing signed by the Parties to this\nAgreement. The Parties may execute this Agreement in counterparts, each of which is\ndeemed an original, but all of which together constitute one and the same agreement.\nThis Agreement may be delivered by facsimile transmission, and facsimile copies of\nexecuted signature pages shall be binding as originals.\n13. DISPUTES\nAll disputes arising out of this Agreement will be subject to the exclusive\njurisdiction and venue of the state courts located in Santa Clara County, California and\nthe federal courts located in the Northern District of California and each Party hereby\nconsents to the personal jurisdiction thereof.
+715f780df436bd9bf4cd8d0883087bf5.pdf	effective_date jurisdiction party term	EX-99.D2 10 0010.txt MUTUAL NON-DISCLOSURE AGREEMENT EXHIBIT (d)(2) MUTUAL NON-\nDISCLOSURE AGREEMENT THIS AGREEMENT is entered into and made effective as of February 10, 2000, by and\nbetween New England Business Service, Inc. ("NEBS") and Premium Wear, Inc. ("Premium Wear"). This Agreement\nprovides for the protection from unauthorized disclosure or use of Confidential Information (as defined below) that may\nbe furnished by one of the parties hereto to the other party and that may be used by the receiving party solely for the\npurpose of evaluating or engaging in a business relationship between the disclosing party and the receiving party. 1.\n"Confidential Information" means non-public information relating to the disclosing party's business that the disclosing\nparty designates as being confidential or proprietary or which, under the circumstances surrounding disclosure, ought to\nbe treated as confidential. "Confidential Information" includes, without limitation, ideas, concepts, designs,\nspecifications, drawings, blueprints, tracings, models, samples, data, computer programs, marketing plans and strategies,\nbusiness strategies, customer names, mailing lists, prices, rates, costs, information received from others that the\ndisclosing party is obligated to treat as confidential, and other technical, financial or business information. Confidential\nInformation may be furnished in any tangible or intangible form, including written or printed documents, visual\ndemonstrations or inspections, computer disks or tapes, other electronic media and oral communications. The receiving\nparty's obligations hereunder will not apply, or will cease to apply, to that Confidential Information which the receiving\nparty can establish (i) is or hereafter becomes generally known or available to the public or interested persons through no\nbreach of this Agreement by the receiving party; (ii) is rightfully known to the receiving party without restriction on\ndisclosure at the time of its receipt from the disclosing party; (iii) is rightfully furnished to the receiving party by a third\nparty without breach of an obligation of confidentiality; (iv) is disclosed to a third party by the disclosing party without\nsimilar restrictions on such third party's rights; (v) is independently developed by the receiving party without use of or\nreference to the Confidential Information; (vi) is required to be disclosed pursuant to the order of a court, administrative\nagency or other governmental body (provided that the receiving party shall give the disclosing party reasonable notice\nprior to such disclosure and shall comply with any applicable protective order or equivalent); or (vii) is approved for\nrelease by written authorization of the disclosing party. 2. Obligations of Receiving Party. The receiving party will\nprotect Confidential Information by using at least the same degree of care, but no less than a reasonable degree of care,\nto prevent the unauthorized disclosure of such Confidential Information as the receiving party uses to protect its own\nconfidential or proprietary information. The receiving party will neither disclose nor copy Confidential Disclosure\nexcept as necessary for its employees, agents or representatives with a need to know, provided that any such employee,\nagent or representative shall have agreed in writing, as a condition to his or her employment or engagement or in order to\nobtain Confidential Information, to be bound by non-disclosure and non-use obligations substantially similar to this\nAgreement. Any copies which are made will be identified as belonging to the disclosing party and shall be reproduced\nwith the disclosing party's proprietary rights notices in the same manner in which such notices appear in the original\ncopy provided by the disclosing party. The receiving party will not use the Confidential Information for any purpose\nexcept to evaluate a business relationship with the disclosing party or otherwise in pursuance of such a relationship.\nNothing in this Agreement will be construed to limit the receiving party's right to independently develop information\nsimilar to the Confidential Information or to compete with the disclosing party so long as the receiving party does not\nviolate its obligations hereunder regarding the non-disclosure and use of the Confidential Information. 3. Ownership of\nConfidential Information. All Confidential Information shall remain the property of the disclosing party. By disclosing\ninformation to the receiving party, the disclosing party does not grant any express or implied right to the receiving party\nto or under any of the disclosing party's patents, copyrights, trademarks or trade secret information. The receiving party\nwill return all originals, copies, reproductions and summaries of Confidential Information immediately upon the\ndisclosing party's request or, at the disclosing party's option, destroy the same, and will deliver to the disclosing party,\nupon its request, a certificate of a duly authorized officer certifying as to the foregoing. 4. Non-Disclosure of\nDiscussions. The parties agree not to disclose the existence of this Agreement and the fact that they are engaged in\ndiscussions unless required to do so by applicable securities laws as reasonably determined by their respective legal\ncounsel. If such disclosure is necessary, the parties agree to notify each other as soon as possible in advance of such\ndisclosure and agree to provide a copy of such disclosure to the other party. 5. Standstill. NEBS agrees not to buy\nPremium Wear's common shares without the written consent of the Board of Directors of Premium Wear prior to March\n1, 2002. 6. Remedies. The receiving party acknowledges that money damages would not be a sufficient remedy for any\nbreach of this Agreement, and the disclosing party will be entitled to specific performance and injunctive relief as\nremedies for any such breach. Such remedies will not be deemed to be the exclusive remedies for a breach of this\nAgreement but will be in addition to all other remedies available at law or equity to the disclosing party. 7. No Warranty.\nTHE DISCLOSING PARTY MAKES NO REPRESENTATION, WARRANTY, ASSURANCE, GUARANTY OR\nINDUCEMENT WHATSOEVER TO THE RECEIVING PARTY WITH RESPECT TO THE QUALITY OF THE\nINFORMATION FURNISHED BY THE DISCLOSING PARTY, NON-INFRINGEMENT OF ANY RIGHTS OF\nTHIRD PARTIES, OR ANY OTHER MATTER OF ANY NATURE WHATSOEVER. THE DISCLOSING PARTY\nACCEPTS NO RESPONSIBILITY FOR ANY EXPENSES, LOSSES OR ACTIONS INCURRED OR UNDERTAKEN\nBY THE RECEIVING PARTY AS A RESULT OF RECEIPT OF ANY INFORMATION FROM THE DISCLOSING\nPARTY. This Agreement does not require any party to furnish any information to another party. It is further understood\nthat neither party has any obligation under or by virtue of this Agreement to enter into any type of business relationship\nwith the other party. 8. Term. The obligations of each receiving party hereunder with respect to the non-disclosure and\nuse of the disclosing party's Confidential Information shall survive until such time as all such Confidential Information\ndisclosed hereunder becomes publicly known and made generally available through no action or inaction of the receiving\nparty. 9. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter\nhereof and supersedes any prior or contemporaneous agreements or understandings, written or oral, concerning the\nsubject matter hereof. This Agreement may be amended, modified or revoked only by a written instrument executed by\nall parties hereto. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof, and\nno waiver of a provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision\non another occasion. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their\nrespective heirs, legal representatives, successors and assigns. This Agreement shall be governed by and construed in\naccordance with the laws of the State of Minnesota. Each party consents to personal jurisdiction in any action brought in\nany court, federal or state, of competent jurisdiction within the State of Minnesota. If any provision of this Agreement\nshall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall\nremain in full force and effect. PREMIUM WEAR, INC. NEW ENGLAND BUSINESS SERVICE, INC. 5500 Feltl\nRoad 500 Main Street Minnetonka, MN 55343-7902 Groton, MA 01471 By: /s/ Thomas D. Gleason By: /s/ Daniel M.\nJunius --------------------- -------------------- (Signature of Authorized (Signature of Authorized Representative)\nRepresentative) Name: Thomas D. Gleason Name: Daniel M. Junius ------------------ ------------------ (Print) (Print) Title:\nChairman Title: Senior Vice President ------------------ and CFO ---------------------	EX-99.D2 10 0010.txt MUTUAL NON-DISCLOSURE AGREEMENT EXHIBIT (d)(2) MUTUAL NON-\nDISCLOSURE AGREEMENT THIS AGREEMENT is entered into and made effective as of February 10, 2000, by and\nbetween New England Business Service, Inc. ("NEBS") and Premium Wear, Inc. ("Premium Wear"). This Agreement\nprovides for the protection from unauthorized disclosure or use of Confidential Information (as defined below) that may\nbe furnished by one of the parties hereto to the other party and that may be used by the receiving party solely for the\npurpose of evaluating or engaging in a business relationship between the disclosing party and the receiving party. 1.\n"Confidential Information" means non-public information relating to the disclosing party's business that the disclosing\nparty designates as being confidential or proprietary or which, under the circumstances surrounding disclosure, ought to\nbe treated as confidential. "Confidential Information" includes, without limitation, ideas, concepts, designs,\nspecifications, drawings, blueprints, tracings, models, samples, data, computer programs, marketing plans and strategies,\nbusiness strategies, customer names, mailing lists, prices, rates, costs, information received from others that the\ndisclosing party is obligated to treat as confidential, and other technical, financial or business information. Confidential\nInformation may be furnished in any tangible or intangible form, including written or printed documents, visual\ndemonstrations or inspections, computer disks or tapes, other electronic media and oral communications. The receiving\nparty's obligations hereunder will not apply, or will cease to apply, to that Confidential Information which the receiving\nparty can establish (i) is or hereafter becomes generally known or available to the public or interested persons through no\nbreach of this Agreement by the receiving party; (ii) is rightfully known to the receiving party without restriction on\ndisclosure at the time of its receipt from the disclosing party; (iii) is rightfully furnished to the receiving party by a third\nparty without breach of an obligation of confidentiality; (iv) is disclosed to a third party by the disclosing party without\nsimilar restrictions on such third party's rights; (v) is independently developed by the receiving party without use of or\nreference to the Confidential Information; (vi) is required to be disclosed pursuant to the order of a court, administrative\nagency or other governmental body (provided that the receiving party shall give the disclosing party reasonable notice\nprior to such disclosure and shall comply with any applicable protective order or equivalent); or (vii) is approved for\nrelease by written authorization of the disclosing party. 2. Obligations of Receiving Party. The receiving party will\nprotect Confidential Information by using at least the same degree of care, but no less than a reasonable degree of care,\nto prevent the unauthorized disclosure of such Confidential Information as the receiving party uses to protect its own\nconfidential or proprietary information. The receiving party will neither disclose nor copy Confidential Disclosure\nexcept as necessary for its employees, agents or representatives with a need to know, provided that any such employee,\nagent or representative shall have agreed in writing, as a condition to his or her employment or engagement or in order to\nobtain Confidential Information, to be bound by non-disclosure and non-use obligations substantially similar to this\nAgreement. Any copies which are made will be identified as belonging to the disclosing party and shall be reproduced\nwith the disclosing party's proprietary rights notices in the same manner in which such notices appear in the original\ncopy provided by the disclosing party. The receiving party will not use the Confidential Information for any purpose\nexcept to evaluate a business relationship with the disclosing party or otherwise in pursuance of such a relationship.\nNothing in this Agreement will be construed to limit the receiving party's right to independently develop information\nsimilar to the Confidential Information or to compete with the disclosing party so long as the receiving party does not\nviolate its obligations hereunder regarding the non-disclosure and use of the Confidential Information. 3. Ownership of\nConfidential Information. All Confidential Information shall remain the property of the disclosing party. By disclosing\ninformation to the receiving party, the disclosing party does not grant any express or implied right to the receiving party\nto or under any of the disclosing party's patents, copyrights, trademarks or trade secret information. The receiving party\nwill return all originals, copies, reproductions and summaries of Confidential Information immediately upon the\ndisclosing party's request or, at the disclosing party's option, destroy the same, and will deliver to the disclosing party,\nupon its request, a certificate of a duly authorized officer certifying as to the foregoing. 4. Non-Disclosure of\nDiscussions. The parties agree not to disclose the existence of this Agreement and the fact that they are engaged in\ndiscussions unless required to do so by applicable securities laws as reasonably determined by their respective legal\ncounsel. If such disclosure is necessary, the parties agree to notify each other as soon as possible in advance of such\ndisclosure and agree to provide a copy of such disclosure to the other party. 5. Standstill. NEBS agrees not to buy\nPremium Wear's common shares without the written consent of the Board of Directors of Premium Wear prior to March\n1, 2002. 6. Remedies. The receiving party acknowledges that money damages would not be a sufficient remedy for any\nbreach of this Agreement, and the disclosing party will be entitled to specific performance and injunctive relief as\nremedies for any such breach. Such remedies will not be deemed to be the exclusive remedies for a breach of this\nAgreement but will be in addition to all other remedies available at law or equity to the disclosing party. 7. No Warranty.\nTHE DISCLOSING PARTY MAKES NO REPRESENTATION, WARRANTY, ASSURANCE, GUARANTY OR\nINDUCEMENT WHATSOEVER TO THE RECEIVING PARTY WITH RESPECT TO THE QUALITY OF THE\nINFORMATION FURNISHED BY THE DISCLOSING PARTY, NON-INFRINGEMENT OF ANY RIGHTS OF\nTHIRD PARTIES, OR ANY OTHER MATTER OF ANY NATURE WHATSOEVER. THE DISCLOSING PARTY\nACCEPTS NO RESPONSIBILITY FOR ANY EXPENSES, LOSSES OR ACTIONS INCURRED OR UNDERTAKEN\nBY THE RECEIVING PARTY AS ARESULT OF RECEIPT OF ANY INFORMATION FROM THE DISCLOSING\nPARTY. This Agreement does not require any party to furnish any information to another party. It is further understood\nthat neither party has any obligation under or by virtue of this Agreement to enter into any type of business relationship\nwith the other party. 8. Term. The obligations of each receiving party hereunder with respect to the non-disclosure and\nuse of the disclosing party's Confidential Information shall survive until such time as all such Confidential Information\ndisclosed hereunder becomes publicly known and made generally available through no action or inaction of the receiving\nparty. 9. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter\nhereof and supersedes any prior or contemporaneous agreements or understandings, written or oral, concerning the\nsubject matter hereof. This Agreement may be amended, modified or revoked only by a written instrument executed by\nall parties hereto. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof, and\nno waiver of a provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision\non another occasion. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their\nrespective heirs, legal representatives, successors and assigns. This Agreement shall be governed by and construed in\naccordance with the laws of the State of Minnesota. Each party consents to personal jurisdiction in any action brought in\nany court, federal or state, of competent jurisdiction within the State of Minnesota. If any provision of this Agreement\nshall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall\nremain in full force and effect. PREMIUM WEAR, INC. NEW ENGLAND BUSINESS SERVICE, INC. 5500 Feltl\nRoad 500 Main Street Minnetonka, MN 55343-7902 Groton, MA 01471 By: /s/ Thomas D. Gleason By: /s/ Daniel M.\nJunius -----------mmm o (Signature of Authorized (Signature of Authorized Representative)\nRepresentative) Name: Thomas D. Gleason Name: Daniel M. Junius --------========= =mmemmmoeeemeee- (Print) (Print) Title:\nChairman Title: Senior Vice President ------------------ and CFO --------=—-=mmmeeeme	EX-99.D2 10 0010.tx MUTUAL NON-DISCLOSURE AGREEMENT EXHIBIT (d)(2) MUTUAL NON-\nDISCLOSURE AGREEMENT THIS AGREEMENT is entered into and made effective as of February 10, 2000,\nby\nand\nbetween New England Business Service, Inc. ("NEBS") and Premium Wear, Inc. ("Premium Wear") This Agreement\nprovides for the protection from unauthorized disclosure or use of Confidential Information (as defined below) that may\nbe furnished by one of the parties hereto to the other party and that may be used by the receiving party solely for the\npurpose of evaluating or engaging in a business relationship between the disclosing party and the receiving party.\n1.\n"Confidential Information" means non-public information relating to the disclosing party's business that the disclosing\nparty designates as being confidential or proprietary or which, under the circumstances surrounding disclosure, ought to\nbe treated as confidential. "Confidential Information" includes, without limitation, ideas, concepts, designs,\nspecifications, drawings, blueprints, tracings, models, samples, data, computer programs, marketing plans and strategies,\nbusiness strategies, customer names, mailing lists, prices, rates, costs, information received from others that the\ndisclosing party is obligated to treat as confidential, and other technical, financial or business information. Confidential\nInformation\nmay\nbe\nfurnished\nin\nany\ntangible\nor\nintangible\nform,\nincluding\nwritten\nor\nprinted\ndocuments,\nvisual\ndemonstrations or inspections, computer disks or tapes, other electronic media and oral communications. The receiving\nparty's obligations hereunder will not apply, or will cease to apply, to that Confidential Information which the receiving\nparty can establish (i) is or hereafter becomes generally known or available to the public or interested persons through no\nbreach of this Agreement by the receiving party; (ii) is rightfully known to the receiving party without restriction on\ndisclosure at the time of its receipt from the disclosing party; (iii) is rightfully furnished to the receiving party by a third\nparty without breach of an obligation of confidentiality; (iv) is disclosed to a third party by the disclosing party without\nsimilar restrictions on such third party's rights; (v) is independently developed by the receiving party without use of or\nreference to the Confidential Information; (vi) is required to be disclosed pursuant to the order of a court, administrative\nagency or other governmental body (provided that the receiving party shall give the disclosing party reasonable notice\nprior to such disclosure and shall comply with any applicable protective order or equivalent); or (vii) is approved for\nrelease by written authorization of the disclosing party. 2. Obligations of Receiving Party. The receiving party will\nprotect Confidential Information by using at least the same degree of care, but no less than a reasonable degree of care,\nto prevent the unauthorized disclosure of such Confidential Information as the receiving party uses to protect its own\nconfidential or proprietary information. The receiving party will neither disclose nor copy Confidential Disclosure\nexcept as necessary for its employees, agents or representatives with a need to know, provided that any such employee,\nagent or representative shall have agreed in writing, as a condition to his or her employment or engagement or in order\nto\nobtain Confidential Information, to be bound by non-disclosure and non-use obligations substantially similar to this\nAgreement. Any copies which are made will be identified as belonging to the disclosing party and shall be\nreproduced\nwith the disclosing party's proprietary rights notices in the same manner in which such notices appear in the original\ncopy provided by the disclosing party. The receiving party will not use the Confidential Information for any purpose\nexcept to evaluate a business relationship with the disclosing party or otherwise in pursuance of such a relationship.\nNothing in this Agreement will be construed to limit the receiving party's right to independently develop information\nsimilar\nto\nthe Confidential Information or to compete with the disclosing party so long as the receiving party does\nnot\nviolate its obligations hereunder regarding the non-disclosure and use of the Confidential Information. 3. Ownership\nof\nConfidential Information. All Confidential Information shall remain the property of the disclosing party. By disclosing\ninformation to the receiving party, the disclosing party does not grant any express or implied right to the receiving party\nto or under any of the disclosing party's patents, copyrights, trademarks or trade secret information. The receiving party\nwill return all originals, copies, reproductions and summaries of Confidential Information immediately upon the\ndisclosing party's request or, at the disclosing party's option, destroy the same, and will deliver to the disclosing party,\nupon its request, a certificate of a duly authorized officer certifying as to the foregoing. 4. Non-Disclosure of\nDiscussions. The parties agree not to disclose the existence of this Agreement and the fact that they are engaged\nin\ndiscussions unless required to do so by applicable securities laws as reasonably determined by their respective legal\ncounsel. If such disclosure is necessary, the parties agree to notify each other as soon as possible in advance of such\ndisclosure and agree to provide a copy of such disclosure to the other party 5. Standstill. NEBS agrees not to buy\nPremium Wear's common shares without the written consent of the Board of Directors of Premium Wear prior to March\n1,\n2002.\n6.\nRemedies.\nThe\nreceiving\nparty\nacknowledges\nthat\nmoney\ndamages\nwould\nnot\nbe\na\nsufficient\nremedy\nfor\nany\nbreach of this Agreement, and the disclosing party will be entitled to specific performance and injunctive relief as\nremedies for any such breach. Such remedies will not be deemed to be the exclusive remedies for a breach of this\nAgreement but will be in addition to all other remedies available at law or equity to the disclosing party. 7. No Warranty.\nTHE DISCLOSING PARTY MAKES NO REPRESENTATION WARRANTY, ASSURANCE, GUARANTY OR\nINDUCEMENT WHATSOEVER TO THE RECEIVING PARTY WITH RESPECT TO THE QUALITY OF THE\nINFORMATION FURNISHED BY THE DISCLOSING PARTY, NON-INFRINGEMENT OF ANY RIGHTS\nOF\nTHIRD PARTIES, OR ANY OTHER MATTER OF ANY NATURE WHATSOEVER THE DISCLOSING PARTY\nACCEPTS NO RESPONSIBILITY FOR ANY EXPENSES, LOSSES OR ACTIONS INCURRED OR UNDERTAKEN\nBY THE RECEIVING PARTY AS A RESULT OF RECEIPT OF ANY INFORMATION FROM THE DISCLOSING\nPARTY. This Agreement does not require any party to furnish any information to another party. It is further understood\nthat neither party has any obligation under or by virtue of this Agreement to enter into any type of business relationship\nwith the other party. 8. Term. The obligations of each receiving party hereunder with respect to the non-disclosure\nand\nuse of the disclosing party's Confidential Information shall survive until such time as all such Confidential Information\ndisclosed hereunder becomes publicly known and made generally available through no action or inaction of the receiving\nparty. 9. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter\nhereof and supersedes any prior or contemporaneous agreements or understandings, written or oral, concerning the\nsubject matter hereof. This Agreement may be amended, modified or revoked only by a written instrument executed by\nall parties hereto. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof, and\nno waiver of a provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision\non another occasion. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their\nrespective heirs, legal representatives, successors and assigns. This Agreement shall be governed by and construed in\naccordance with the laws of the State of Minnesota. Each party consents to personal jurisdiction in any action brought in\nany court, federal or state, of competent jurisdiction within the State of Minnesota. If any provision of this Agreement\nshall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall\nremain in full force and effect. PREMIUM WEAR, INC. NEW ENGLAND BUSINESS SERVICE, INC. 5500\nFeltl\nRoad 500 Main Street Minnetonka, MN 55343-7902 Groton, MA 01471 By: /s/ Thomas D. Gleason By: /s/ Daniel M.\nJunius\n(Signature of Authorized (Signature of Authorized Representative)\nRepresentative) Name: Thomas D. Gleason Name: Daniel M. Junius\n(Print) (Print) Title:\nChairman Title: Senior Vice President\nand CFO	EX-99.D2 10 0010.txt MUTUAL NON-DISCLOSURE AGREEMENT EXHIBIT (d)(2) MUTUAL NON-\nDISCLOSURE AGREEMENT THIS AGREEMENT is entered into and made effective as of February 10, 2000, by and\nbetween New England Business Service, Inc. ("NEBS") and Premium Wear, Inc. ("Premium Wear"). This Agreement\nprovides for the protection from unauthorized disclosure or use of Confidential Information (as defined below) that may\nbe furnished by one of the parties hereto to the other party and that may be used by the receiving party solely for the\npurpose of evaluating or engaging in a business relationship between the disclosing party and the receiving party. 1.\n"Confidential Information" means non-public information relating to the disclosing party's business that the disclosing\nparty designates as being confidential or proprietary or which, under the circumstances surrounding disclosure, ought to\nbe treated as confidential. "Confidential Information" includes, without limitation, ideas, concepts, designs,\nspecifications, drawings, blueprints, tracings, models, samples, data, computer programs, marketing plans and strategies,\nbusiness strategies, customer names, mailing lists, prices, rates, costs, information received from others that the\ndisclosing party is obligated to treat as confidential, and other technical, financial or business information. Confidential\nInformation may be furnished in any tangible or intangible form, including written or printed documents, visual\ndemonstrations or inspections, computer disks or tapes, other electronic media and oral communications. The receiving\nparty's obligations hereunder will not apply, or will cease to apply, to that Confidential Information which the receiving\nparty can establish (i) is or hereafter becomes generally known or available to the public or interested persons through no\nbreach of this Agreement by the receiving party; (ii) is rightfully known to the receiving party without restriction on\ndisclosure at the time of its receipt from the disclosing party; (iii) is rightfully furnished to the receiving party by a third\nparty without breach of an obligation of confidentiality; (iv) is disclosed to a third party by the disclosing party without\nsimilar restrictions on such third party's rights; (v) is independently developed by the receiving party without use of or\nreference to the Confidential Information; (vi) is required to be disclosed pursuant to the order of a court, administrative\nagency or other governmental body (provided that the receiving party shall give the disclosing party reasonable notice\nprior to such disclosure and shall comply with any applicable protective order or equivalent); or (vii) is approved for\nrelease by written authorization of the disclosing party. 2. Obligations of Receiving Party. The receiving party will\nprotect Confidential Information by using at least the same degree of care, but no less than a reasonable degree of care,\nto prevent the unauthorized disclosure of such Confidential Information as the receiving party uses to protect its own\nconfidential or proprietary information. The receiving party will neither disclose nor copy Confidential Disclosure\nexcept as necessary for its employees, agents or representatives with a need to know, provided that any such employee,\nagent or representative shall have agreed in writing, as a condition to his or her employment or engagement or in order to\nobtain Confidential Information, to be bound by non-disclosure and non-use obligations substantially similar to this\nAgreement. Any copies which are made will be identified as belonging to the disclosing party and shall be reproduced\nwith the disclosing party's proprietary rights notices in the same manner in which such notices appear in the original\ncopy provided by the disclosing party. The receiving party will not use the Confidential Information for any purpose\nexcept to evaluate a business relationship with the disclosing party or otherwise in pursuance of such a relationship.\nNothing in this Agreement will be construed to limit the receiving party's right to independently develop information\nsimilar to the Confidential Information or to compete with the disclosing party so long as the receiving party does not\nviolate its obligations hereunder regarding the non-disclosure and use of the Confidential Information. 3. Ownership of\nConfidential Information. All Confidential Information shall remain the property of the disclosing party. By disclosing\ninformation to the receiving party, the disclosing party does not grant any express or implied right to the receiving party\nto or under any of the disclosing party's patents, copyrights, trademarks or trade secret information. The receiving party\nwill return all originals, copies, reproductions and summaries of Confidential Information immediately upon the\ndisclosing party's request or, at the disclosing party's option, destroy the same, and will deliver to the disclosing party,\nupon its request, a certificate of a duly authorized officer certifying as to the foregoing. 4. Non-Disclosure of\nDiscussions. The parties agree not to disclose the existence of this Agreement and the fact that they are engaged in\ndiscussions unless required to do so by applicable securities laws as reasonably determined by their respective legal\ncounsel. If such disclosure is necessary, the parties agree to notify each other as soon as possible in advance of such\ndisclosure and agree to provide a copy of such disclosure to the other party. 5. Standstill. NEBS agrees not to buy\nPremium Wear's common shares without the written consent of the Board of Directors of Premium Wear prior to March\n1, 2002. 6. Remedies. The receiving party acknowledges that money damages would not be a sufficient remedy for any\nbreach of this Agreement, and the disclosing party will be entitled to specific performance and injunctive relief as\nremedies for any such breach. Such remedies will not be deemed to be the exclusive remedies for a breach of this\nAgreement but will be in addition to all other remedies available at law or equity to the disclosing party. 7. No Warranty.\nTHE DISCLOSING PARTY MAKES NO REPRESENTATION, WARRANTY, ASSURANCE, GUARANTY OR\nINDUCEMENT WHATSOEVER TO THE RECEIVING PARTY WITH RESPECT TO THE QUALITY OF THE\nINFORMATION FURNISHED BY THE DISCLOSING PARTY, NON-INFRINGEMENT OF ANY RIGHTS OF\nTHIRD PARTIES, OR ANY OTHER MATTER OF ANY NATURE WHATSOEVER. THE DISCLOSING PARTY\nACCEPTS NO RESPONSIBILITY FOR ANY EXPENSES, LOSSES OR ACTIONS INCURRED OR UNDERTAKEN\nBY THE RECEIVING PARTY AS A RESULT OF RECEIPT OF ANY INFORMATION FROM THE DISCLOSING\nPARTY. This Agreement does not require any party to furnish any information to another party. It is further understood\nthat neither party has any obligation under or by virtue of this Agreement to enter into any type of business relationship\nwith the other party. 8. Term. The obligations of each receiving party hereunder with respect to the non-disclosure and\nuse of the disclosing party's Confidential Information shall survive until such time as all such Confidential Information\ndisclosed hereunder becomes publicly known and made generally available through no action or inaction of the receiving\nparty. 9. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter\nhereof and supersedes any prior or contemporaneous agreements or understandings, written or oral, concerning the\nsubject matter hereof. This Agreement may be amended, modified or revoked only by a written instrument executed by\nall parties hereto. Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof, and\nno waiver of a provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision\non another occasion. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their\nrespective heirs, legal representatives, successors and assigns. This Agreement shall be governed by and construed in\naccordance with the laws of the State of Minnesota. Each party consents to personal jurisdiction in any action brought in\nany court, federal or state, of competent jurisdiction within the State of Minnesota. If any provision of this Agreement\nshall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall\nremain in full force and effect. PREMIUM WEAR, INC. NEW ENGLAND BUSINESS SERVICE, INC. 5500 Feltl\nRoad 500 Main Street Minnetonka, MN 55343-7902 Groton, MA 01471 By: /s/ Thomas D. Gleason By: /s/ Daniel M.\nJunius --------------------- -------------------- (Signature of Authorized (Signature of Authorized Representative)\nRepresentative) Name: Thomas D. Gleason Name: Daniel M. Junius ------------------ ------------------ (Print) (Print) Title:\nChairman Title: Senior Vice President ------------------ and CFO ---------------------
+7187b5dc91b45bd1339f75c4fe646186.pdf	effective_date jurisdiction party term	Appendix A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) dated as of November 6, 2008 is entered in by and between BioLargo. Inc. (the\n“Company”) and Howard Isaacs (the “Consultant”), and sets forth the terms and conditions on which Company is willing to disclose certain material\nnon-public information about the Company.\n1.\nPurpose. In connection with his retention as a consultant to the Company pursuant to an agreement dated as of even date (the\n“Consulting Agreement”), the Company may disclose to the Consultant certain confidential technical and business information which the Company\nrequires the Consultant to treat as confidential.\n2.\nDefinition. “Confidential Information” means any information disclosed to the Consultant by the Company, either directly or\nindirectly in writing, orally or by inspection of tangible objects, including without limitation documents, prototypes and forecasted financial\ninformation. Confidential Information may also include information disclosed to the Company by third parties. Confidential Information shall not,\nhowever, include any information which the Consultant can establish by written documentation (i) was publicly known and made generally available\nin the public domain prior to the time of disclosure to the Consultant by the Company; (ii) becomes publicly known and made generally available\nafter disclosure to the Consultant by the Company through no action or inaction of the Consultant; (iii) is in the possession of the Consultant, without\nconfidentiality restrictions, at the time of disclosure by the Company as shown by the Consultant’s files and records immediately prior to the time of\ndisclosure; (iv) is developed independently of the Confidential Information, as shown by written records prepared contemporaneously with such\nindependent development; or (v) is disclosed pursuant to the requirement of a United States government agency or judicial body, provided that the\nConsultant shall provide reasonable advice notice thereof to enable the Company to seek a protective order or otherwise prevent such disclosure.\n3.\nNon-use and Non-disclosure. The Consultant agrees not to use any Confidential Information for any purpose except within the\nproper scope of his duties pursuant to the Consulting Agreement. The Consultant agrees not to disclose any Confidential Information to third parties,\nexcept to those individuals who, with the prior written consent of the Company, are designated as authorized to receive such Confidential\nInformation in order for the Consultant to perform his duties and obligations under the Consulting Agreement. The Consultant agrees that each third\nparty receiving any Confidential Information will enter into a separate Non-Disclosure Agreement with the Company.\n4.\nMaintenance of Confidentiality. The Consultant agrees that it shall take all commercially reasonable measures to protect the\nsecrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Consultant shall take at\nleast those measures that the Consultant takes to protect its own confidential information of a similar nature and shall have its employees or advisors\nwho have access to Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the provisions hereof,\nprior to any disclosure of Confidential Information to such employees. The Consultant shall immediately notify the Company in the event of any\nunauthorized use or disclosure of any Confidential Information.\n-6-\n5.\nNo Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. COMPANY MAKES NO WARRANTIES,\nEXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n6.\nReturn of Materials. All documents and other tangible objects containing or representing Confidential Information which are in\nthe possession of the Consultant shall be and remain the property of the Company and shall be promptly returned to the Company upon request for\nany reason or for no reason.\n7.\nWork Made for Hire.\n(a)\nConsultant and/or designates of the Consultant shall promptly and fully inform the Company of, and disclose to the Company, any\nand all ideas, processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, fictitious business names,\ntechnology, patents, know-how, trade secrets, computer programs, original works of authorship, formulae, concepts, themes, inventions, designs,\ncreations, new works, derivative works and discoveries, and all applications, improvements, rights and claims related to any the foregoing, and all\nother intellectual property, proprietary rights and work product, whether or not patentable or copyrightable, registered or unregistered or domestic or\nforeign, and whether or not relating to a published work, that Consultant develops, makes, creates, conceives or reduces to practice during the term\nof the Consulting Agreement that relate to the Company’s business or result from work performed by the Consultant to the Company, whether alone\nor in collaboration with others (collectively, “Invention Ideas”). Consultant hereby assigns to the Company exclusively in perpetuity throughout the\nworld all right, title and interest (choate or inchoate) in (i) the Invention Ideas, (ii) all precursors, portions and work in progress with respect thereto\nand all inventions, works of authorship, mask works, technology, information, know-how, materials and tools relating thereto or to the development,\nsupport or maintenance thereof and (iii) all copyrights, patent rights, trade secret rights, trademark rights, mask works rights, sui generis database\nrights and all other intellectual and industrial property rights of any sort and all business, contract rights, causes of action, and goodwill in,\nincorporated or embodied in, used to develop, or related to any of the foregoing (collectively “Intellectual Property”). All copyrightable Invention\nIdeas are intended by Consultant to be a “work-made-for-hire” by Consultant for Company and owned by Company pursuant to Section 201 (b) of\nTitle 17 of the United States Code.\n(b)\nConsultant shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver\nall such other agreements, certificates, instruments and documents, as the Company may reasonably request in order to obtain patent or copyright\nregistration on all Invention Ideas and Intellectual Property, and shall execute and deliver all documents, instruments and agreements, including the\nformal execution of an assignment of copyright and/or patent application or issued patent, and do all things necessary or requested by the Company,\nin order to enable Company to ultimately and finally obtain and enforce full and exclusive title to all Invention Ideas and Intellectual Property and all\nrights assigned pursuant to this Section 7. Consultant hereby appoints the Company as Consultant’s irrevocable attorney-in-fact for the purpose of\nexecuting and delivering all such documents, instruments and agreements, and performing all such acts, with the same legal force and effect as if\nexecuted and delivered and taken by Consultant.\n(c)\nIf for any reason the foregoing assignment is determined to be unenforceable Consultant grants to Company a perpetual,\nirrevocable, worldwide, royalty-free, exclusive, sub-licensable right and license to exploit and exercise all such Invention Ideas and Intellectual\nProperty.\n(d)\nBecause of the difficulty of establishing when Consultant first conceives of or develops Intellectual Property, proprietary rights or\nwork product or whether such Intellectual Property, proprietary\n-7-\nrights or work product results from access to Company’s confidential and proprietary information or equipment, facilities or data. Consultant agrees\nthat any Intellectual Property, proprietary rights and work product shall be presumed to be an Invention Idea if it is conceived, developed, used, sold,\nexploited or reduced to practice by Consultant or with the aid of Consultant within one year after the normal termination of Consultant’s employment\nwith Company. Consultant can rebut that presumption if Consultant proves that the intellectual property, proprietary rights and work product (i) was\nfirst conceived or developed after termination of Consultant’s employment with and by Company; (ii) was conceived or developed entirely on\nConsultant’s own time without using Company’s equipment, supplies, facilities or confidential and proprietary information; and (iii) did not result\nfrom any work performed by Consultant for or on behalf of Company.\n(e)\nConsultant acknowledges that there is no intellectual property, proprietary right or work product that Consultant desires not to be\ndeemed Invention Ideas or Intellectual Property and thus to exclude from the above provisions of this Agreement. To the best of Consultant’s\nknowledge, there is no other existing contract in conflict with this Agreement or any other contract to assign ideas, processes, trademarks, service\nmarks, inventions, technology, computer programs, original works of authorship, designs, formulas, discoveries, patents or copyrights that is now in\nexistence between Consultant and any other person or entity.\n(f)\nThis Section 7 shall not operate to require Consultant to assign to Company any of Consultant’s rights to inventions, intellectual\nproperties or work products that would not be assignable under the provisions of California Labor Code Section 2870. Consultant represents and\nwarrants to Company that this paragraph constitutes Company’s written notification to Consultant of the provisions of Section 2870 of the California\nLabor Code, and Consultant represents and warrants to Company that Consultant has reviewed Section 2870 of the California Labor Code.\n8.\nUnfair Competition and Protection of Proprietary Information.\n(a)\nConsultant shall not at any time (including after Consultant’s employment with Company terminates) divulge, furnish or make\naccessible to anyone any of Company’s Proprietary Information, or use in any way any of Company’s Proprietary Information other than as\nreasonably required to perform Consultant’s duties under this Agreement. Consultant shall not undertake any other acts or omissions that would\nreduce the value to Company of Company’s Proprietary Information. The restrictions on Consultant’s use of Company’s Proprietary’ Information\nshall not apply to knowledge or information that Consultant can prove is part of the public domain through no fault of Consultant. Consultant agrees\nthat such restrictions are fair and reasonable.\n(b)\nConsultant agrees that Company’s Proprietary Information constitutes a unique and valuable asset of Company that Company\nacquired at great time and expense, and which is secret and confidential and will only be available to or communicated to Consultant in confidence\nin the course of Consultant’s provision of services to Company. Consultant also agrees that any disclosure or other use of Company’s Proprietary\nInformation other than for Company’s sole benefit would be wrongful, would constitute unfair competition and will cause irreparable and\nincalculable harm to Company and to its subsidiaries, affiliates and divisions. In addition to all other remedies Company may have, it shall have the\nright to seek and obtain appropriate injunctive and other equitable relief, including emergency relief, to prevent any violations of this Section 8.\n(c)\nConsultant agrees that Company’s employees constitute a valuable asset of Company. Consultant agrees that Consultant shall not,\nduring the Term and for a period of two years thereafter, directly or indirectly, for Consultant or on behalf of any other person or entity, solicit any\nperson who was an employee of or consultant to Company (at any time while Consultant is performing any services for\n-8-\nCompany, or at any time within twelve months prior to or after such solicitation) for a competing business or otherwise induce or attempt to induce\nany such persons to terminate their employment or relationship with Company or otherwise to disrupt or interfere, or attempt to disrupt or interfere,\nwith Company’s employment or relationships with such persons. Consultant agrees that any such solicitation, inducement or interference would be\nwrongful and would constitute unfair competition, and will cause irreparable and incalculable harm to Company. Further, Consultant shall not\nengage in any other unfair competition with Company. Consultant agrees that such restrictions are fair and reasonable.\n(d)\nConsultant recognizes and agrees that Consultant has no expectation of privacy with respect to Company’s telecommunications,\nnetworking or information processing systems (including stored computer files, e-mail messages and voice messages), and that Consultant’s activity,\nand any files or messages, on or using any of those systems may be monitored at any time without notice.\n(e)\nAs used in this Agreement, “Company’s Proprietary Information” means any knowledge, trade secrets (including “trade secrets” as\ndefined in Section 3426.1 of the California Civil Code), Invention Ideas, proprietary rights or proprietary information, intangible assets or property,\nand other intellectual property (whether or not copyrighted or copyrightable or patented or patentable), information and materials (including\nprocesses, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, technology, patents, patent applications\nand works of authorship), in whatever form, including electronic form, and all goodwill relating or appurtenant thereto, owned or licensed by\nCompany or any of its subsidiaries, affiliates or divisions, or directly or indirectly useful in any aspect of the business of Company or its subsidiaries,\naffiliates or divisions, whether or not marked as confidential or proprietary and whether developed by Consultant, by Company or its subsidiaries,\naffiliates or divisions or by others. Without limiting the foregoing, Company’s Proprietary Information includes (a) the names, locations, practices\nand requirements of any of Company’s customers, prospective customers, vendors, suppliers and personnel and any other persons having a business\nrelationship with Company; (b) confidential or secret development or research work of Company or its subsidiaries, affiliates or divisions, including\ninformation concerning any future or proposed services or products; (c) Company’s accounting, cost, revenue and other financial records and\ndocuments and the contents thereof; (d) Company’s documents, contracts, agreements, correspondence and other similar business records;\n(e) confidential or secret designs, software code, know how, processes, formulae, plans and devices; and (f) any other confidential or secret aspect of\nthe business of Company or its subsidiaries, affiliates or divisions.\n9.\nRemedies.\n(a)\nThe Consultant agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the Company,\nentitling the Company to obtain injunctive relief in addition to all legal remedies at its disposal.\n(b)\nIn addition to all remedies available hereunder, at law or in equity, if Consultant breaches any provision of Section 8 of this\nAgreement, Company shall have the right to invoke any and all remedies provided under the California Uniform Trade Secrets Act (California Civil\nCode §§3426, et seq.) or other statutes or common law remedies of similar effect.\n(c)\nThe remedies provided to Company in this Section 10 are cumulative, and not exclusive, of any other remedies that may be\navailable to Company at law or in equity.\n10.\nNo License. Nothing in this Agreement is intended to grant any rights to the Consultant under any patent, copyright or other\nproprietary rights of the Company, nor shall this Agreement grant the Consultant any rights in or to Confidential Information except as expressly set\nforth herein.\n-9-\n11.\nTerm. This Agreement shall survive the term of the Consulting Agreement and shall continue until such time as all Confidential\nInformation disclosed hereunder becomes publicly known and made generally available through no action or inaction of the Consultant.\n12.\nMiscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This\nAgreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. This document contains the\nentire agreement between the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not\nconstitute a waiver thereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a writing\nsigned by both parties hereto.\nIN WITNESS WHEREOF, the parties hereto have executed or caused their duly authorized officers to execute this Agreement as of the date\nfirst above written.\nBIOLARGO, INC. (“COMPANY”)\nBy /s/ Dennis Calvert\nDennis Calvert\nTitle: President and Chief Executive Officer\nHOWARD ISAACS (“CONSULTANT”)\n/s/ Howard Isaacs\n-10-	Appendix A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) dated as of November 6, 2008 is entered in by and between BioLargo. Inc. (the\n“Company”) and Howard Isaacs (the “Consultant”), and sets forth the terms and conditions on which Company is willing to disclose certain material\nnon-public information about the Company.\n1. Purpose. In connection with his retention as a consultant to the Company pursuant to an agreement dated as of even date (the\n“Consulting Agreement”), the Company may disclose to the Consultant certain confidential technical and business information which the Company\nrequires the Consultant to treat as confidential.\n2. Definition. “Confidential Information” means any information disclosed to the Consultant by the Company, either directly or\nindirectly in writing, orally or by inspection of tangible objects, including without limitation documents, prototypes and forecasted financial\ninformation. Confidential Information may also include information disclosed to the Company by third parties. Confidential Information shall not,\nhowever, include any information which the Consultant can establish by written documentation (i) was publicly known and made generally available\nin the public domain prior to the time of disclosure to the Consultant by the Company; (ii) becomes publicly known and made generally available\nafter disclosure to the Consultant by the Company through no action or inaction of the Consultant; (iii) is in the possession of the Consultant, without\nconfidentiality restrictions, at the time of disclosure by the Company as shown by the Consultant’s files and records immediately prior to the time of\ndisclosure; (iv) is developed independently of the Confidential Information, as shown by written records prepared contemporaneously with such\nindependent development; or (v) is disclosed pursuant to the requirement of a United States government agency or judicial body, provided that the\nConsultant shall provide reasonable advice notice thereof to enable the Company to seek a protective order or otherwise prevent such disclosure.\n3. Non-use and Non-disclosure. The Consultant agrees not to use any Confidential Information for any purpose except within the\nproper scope of his duties pursuant to the Consulting Agreement. The Consultant agrees not to disclose any Confidential Information to third parties,\nexcept to those individuals who, with the prior written consent of the Company, are designated as authorized to receive such Confidential\nInformation in order for the Consultant to perform his duties and obligations under the Consulting Agreement. The Consultant agrees that each third\nparty receiving any Confidential Information will enter into a separate Non-Disclosure Agreement with the Company.\n4. Maintenance of Confidentiality. The Consultant agrees that it shall take all commercially reasonable measures to protect the\nsecrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Consultant shall take at\nleast those measures that the Consultant takes to protect its own confidential information of a similar nature and shall have its employees or advisors\nwho have access to Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the provisions hereof,\nprior to any disclosure of Confidential Information to such employees. The Consultant shall immediately notify the Company in the event of any\nunauthorized use or disclosure of any Confidential Information.\n-6-\n5. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. COMPANY MAKES NO WARRANTIES,\nEXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n6. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which are in\nthe possession of the Consultant shall be and remain the property of the Company and shall be promptly returned to the Company upon request for\nany reason or for no reason.\n7. Work Made for Hire.\n(a) Consultant and/or designates of the Consultant shall promptly and fully inform the Company of, and disclose to the Company, any\nand all ideas, processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, fictitious business names,\ntechnology, patents, know-how, trade secrets, computer programs, original works of authorship, formulae, concepts, themes, inventions, designs,\ncreations, new works, derivative works and discoveries, and all applications, improvements, rights and claims related to any the foregoing, and all\nother intellectual property, proprietary rights and work product, whether or not patentable or copyrightable, registered or unregistered or domestic or\nforeign, and whether or not relating to a published work, that Consultant develops, makes, creates, conceives or reduces to practice during the term\nof the Consulting Agreement that relate to the Company’s business or result from work performed by the Consultant to the Company, whether alone\nor in collaboration with others (collectively, “Invention Ideas”). Consultant hereby assigns to the Company exclusively in perpetuity throughout the\nworld all right, title and interest (choate or inchoate) in (i) the Invention Ideas, (ii) all precursors, portions and work in progress with respect thereto\nand all inventions, works of authorship, mask works, technology, information, know-how, materials and tools relating thereto or to the development,\nsupport or maintenance thereof and (iii) all copyrights, patent rights, trade secret rights, trademark rights, mask works rights, sui generis database\nrights and all other intellectual and industrial property rights of any sort and all business, contract rights, causes of action, and goodwill in,\nincorporated or embodied in, used to develop, or related to any of the foregoing (collectively “Intellectual Property”). All copyrightable Invention\nIdeas are intended by Consultant to be a “work-made-for-hire” by Consultant for Company and owned by Company pursuant to Section 201 (b) of\nTitle 17 of the United States Code.\n(b) Consultant shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver\nall such other agreements, certificates, instruments and documents, as the Company may reasonably request in order to obtain patent or copyright\nregistration on all Invention Ideas and Intellectual Property, and shall execute and deliver all documents, instruments and agreements, including the\nformal execution of an assignment of copyright and/or patent application or issued patent, and do all things necessary or requested by the Company,\nin order to enable Company to ultimately and finally obtain and enforce full and exclusive title to all Invention Ideas and Intellectual Property and all\nrights assigned pursuant to this Section 7. Consultant hereby appoints the Company as Consultant’s irrevocable attorney-in-fact for the purpose of\nexecuting and delivering all such documents, instruments and agreements, and performing all such acts, with the same legal force and effect as if\nexecuted and delivered and taken by Consultant.\n(© If for any reason the foregoing assignment is determined to be unenforceable Consultant grants to Company a perpetual,\nirrevocable, worldwide, royalty-free, exclusive, sub-licensable right and license to exploit and exercise all such Invention Ideas and Intellectual\nProperty.\n(d) Because of the difficulty of establishing when Consultant first conceives of or develops Intellectual Property, proprietary rights or\nwork product or whether such Intellectual Property, proprietary\n_7-\nrights or work product results from access to Company’s confidential and proprietary information or equipment, facilities or data. Consultant agrees\nthat any Intellectual Property, proprietary rights and work product shall be presumed to be an Invention Idea if it is conceived, developed, used, sold,\nexploited or reduced to practice by Consultant or with the aid of Consultant within one year after the normal termination of Consultant’s employment\nwith Company. Consultant can rebut that presumption if Consultant proves that the intellectual property, proprietary rights and work product (i) was\nfirst conceived or developed after termination of Consultant’s employment with and by Company; (ii) was conceived or developed entirely on\nConsultant’s own time without using Company’s equipment, supplies, facilities or confidential and proprietary information; and (iii) did not result\nfrom any work performed by Consultant for or on behalf of Company.\n(e) Consultant acknowledges that there is no intellectual property, proprietary right or work product that Consultant desires not to be\ndeemed Invention Ideas or Intellectual Property and thus to exclude from the above provisions of this Agreement. To the best of Consultant’s\nknowledge, there is no other existing contract in conflict with this Agreement or any other contract to assign ideas, processes, trademarks, service\nmarks, inventions, technology, computer programs, original works of authorship, designs, formulas, discoveries, patents or copyrights that is now in\nexistence between Consultant and any other person or entity.\n® This Section 7 shall not operate to require Consultant to assign to Company any of Consultant’s rights to inventions, intellectual\nproperties or work products that would not be assignable under the provisions of California Labor Code Section 2870. Consultant represents and\nwarrants to Company that this paragraph constitutes Company’s written notification to Consultant of the provisions of Section 2870 of the California\nLabor Code, and Consultant represents and warrants to Company that Consultant has reviewed Section 2870 of the California Labor Code.\n8. Unfair Competition and Protection of Proprietary Information.\n \n(a) Consultant shall not at any time (including after Consultant’s employment with Company terminates) divulge, furnish or make\naccessible to anyone any of Company’s Proprietary Information, or use in any way any of Company’s Proprietary Information other than as\nreasonably required to perform Consultant’s duties under this Agreement. Consultant shall not undertake any other acts or omissions that would\nreduce the value to Company of Company’s Proprietary Information. The restrictions on Consultant’s use of Company’s Proprietary’ Information\nshall not apply to knowledge or information that Consultant can prove is part of the public domain through no fault of Consultant. Consultant agrees\nthat such restrictions are fair and reasonable.\n(b) Consultant agrees that Company’s Proprietary Information constitutes a unique and valuable asset of Company that Company\nacquired at great time and expense, and which is secret and confidential and will only be available to or communicated to Consultant in confidence\nin the course of Consultant’s provision of services to Company. Consultant also agrees that any disclosure or other use of Company’s Proprietary\nInformation other than for Company’s sole benefit would be wrongful, would constitute unfair competition and will cause irreparable and\nincalculable harm to Company and to its subsidiaries, affiliates and divisions. In addition to all other remedies Company may have, it shall have the\nright to seek and obtain appropriate injunctive and other equitable relief, including emergency relief, to prevent any violations of this Section 8.\n(o) Consultant agrees that Company’s employees constitute a valuable asset of Company. Consultant agrees that Consultant shall not,\nduring the Term and for a period of two years thereafter, directly or indirectly, for Consultant or on behalf of any other person or entity, solicit any\nperson who was an employee of or consultant to Company (at any time while Consultant is performing any services for\n-8-\nCompany, or at any time within twelve months prior to or after such solicitation) for a competing business or otherwise induce or attempt to induce\nany such persons to terminate their employment or relationship with Company or otherwise to disrupt or interfere, or attempt to disrupt or interfere,\nwith Company’s employment or relationships with such persons. Consultant agrees that any such solicitation, inducement or interference would be\nwrongful and would constitute unfair competition, and will cause irreparable and incalculable harm to Company. Further, Consultant shall not\nengage in any other unfair competition with Company. Consultant agrees that such restrictions are fair and reasonable.\n(d) Consultant recognizes and agrees that Consultant has no expectation of privacy with respect to Company’s telecommunications,\nnetworking or information processing systems (including stored computer files, e-mail messages and voice messages), and that Consultant’s activity,\nand any files or messages, on or using any of those systems may be monitored at any time without notice.\n(e) As used in this Agreement, “Company’s Proprietary Information” means any knowledge, trade secrets (including “trade secrets” as\ndefined in Section 3426.1 of the California Civil Code), Invention Ideas, proprietary rights or proprietary information, intangible assets or property,\nand other intellectual property (whether or not copyrighted or copyrightable or patented or patentable), information and materials (including\nprocesses, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, technology, patents, patent applications\nand works of authorship), in whatever form, including electronic form, and all goodwill relating or appurtenant thereto, owned or licensed by\nCompany or any of its subsidiaries, affiliates or divisions, or directly or indirectly useful in any aspect of the business of Company or its subsidiaries,\naffiliates or divisions, whether or not marked as confidential or proprietary and whether developed by Consultant, by Company or its subsidiaries,\naffiliates or divisions or by others. Without limiting the foregoing, Company’s Proprietary Information includes (a) the names, locations, practices\nand requirements of any of Company’s customers, prospective customers, vendors, suppliers and personnel and any other persons having a business\nrelationship with Company; (b) confidential or secret development or research work of Company or its subsidiaries, affiliates or divisions, including\ninformation concerning any future or proposed services or products; (c) Company’s accounting, cost, revenue and other financial records and\ndocuments and the contents thereof; (d) Company’s documents, contracts, agreements, correspondence and other similar business records;\n(e) confidential or secret designs, software code, know how, processes, formulae, plans and devices; and (f) any other confidential or secret aspect of\nthe business of Company or its subsidiaries, affiliates or divisions.\n9. Remedies.\n(a) The Consultant agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the Company,\nentitling the Company to obtain injunctive relief in addition to all legal remedies at its disposal.\n(b) In addition to all remedies available hereunder, at law or in equity, if Consultant breaches any provision of Section 8 of this\nAgreement, Company shall have the right to invoke any and all remedies provided under the California Uniform Trade Secrets Act (California Civil\nCode §83426, et seq.) or other statutes or common law remedies of similar effect.\n(© The remedies provided to Company in this Section 10 are cumulative, and not exclusive, of any other remedies that may be\navailable to Company at law or in equity.\n10. No License. Nothing in this Agreement is intended to grant any rights to the Consultant under any patent, copyright or other\nproprietary rights of the Company, nor shall this Agreement grant the Consultant any rights in or to Confidential Information except as expressly set\nforth herein.\n-9.\n11. Term. This Agreement shall survive the term of the Consulting Agreement and shall continue until such time as all Confidential\nInformation disclosed hereunder becomes publicly known and made generally available through no action or inaction of the Consultant.\n12. Miscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This\nAgreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. This document contains the\nentire agreement between the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not\nconstitute a waiver thereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a writing\nsigned by both parties hereto.\nIN WITNESS WHEREOF, the parties hereto have executed or caused their duly authorized officers to execute this Agreement as of the date\nfirst above written.\nBIOLARGO, INC. (“COMPANY”)\nBy /s/ Dennis Calvert\nDennis Calvert\nTitle: President and Chief Executive Officer\nHOWARD ISAACS (“CONSULTANT?)\n/s/  Howard Isaacs\n-10 -	Appendix A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement ("Agreement") dated as of November 6, 2008 is entered in by and between BioLargo. Inc. (the\n"Company") and Howard Isaacs (the "Consultant"), and sets forth the terms and conditions on which Company is willing to disclose certain material\nnon-public information about the Company.\n1.\nPurpose. In connection with his retention as a consultant to the Company pursuant to an agreement dated as of even date (the\n"Consulting Agreement"), the Company may disclose to the Consultant certain confidential technical and business information which the Company\nrequires the Consultant to treat as confidential.\n2.\nDefinition. "Confidential Information" means any information disclosed to the Consultant by the Company, either directly\nor\nindirectly in writing, orally or by inspection of tangible objects, including without limitation documents, prototypes and forecasted financial\ninformation. Confidential Information may also include information disclosed to the Company by third parties. Confidential Information shall not,\nhowever, include any information which the Consultant can establish by written documentation (i) was publicly known and made generally available\nin the public domain prior to the time of disclosure to the Consultant by the Company; (ii) becomes publicly known and made generally available\nafter disclosure to the Consultant by the Company through no action or inaction of the Consultant; (iii) is in the possession of the Consultant, without\nconfidentiality restrictions, at the time of disclosure by the Company as shown by the Consultant's files and records immediately prior to the time of\ndisclosure; (iv) is developed independently of the Confidential Information, as shown by written records prepared contemporaneously with such\nindependent development; or (v) is disclosed pursuant to the requirement of a United States government agency or judicial body, provided that the\nConsultant shall provide reasonable advice notice thereof to enable the Company to seek a protective order or otherwise prevent such disclosure.\n3.\nNon-use and Non-disclosure. The Consultant agrees not to use any Confidential Information for any purpose except within the\nproper scope of his duties pursuant to the Consulting Agreement. The Consultant agrees not to disclose any Confidential Information to third parties,\nexcept to those individuals who, with the prior written consent of the Company, are designated as authorized to receive such Confidential\nInformation in order for the Consultant to perform his duties and obligations under the Consulting Agreement. The Consultant agrees that each third\nparty receiving any Confidential Information will enter into a separate Non-Disclosure Agreement with the Company.\n4.\nMaintenance of Confidentiality.. The Consultant agrees that it shall take all commercially reasonable measures to protect the\nsecrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Consultant shall take at\nleast those measures that the Consultant takes to protect its own confidential information of a similar nature and shall have its employees or advisors\nwho have access to Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the provisions hereof,\nprior to any disclosure of Confidential Information to such employees. The Consultant shall immediately notify the Company in the event of any\nunauthorized use or disclosure of any Confidential Information.\n6\n5. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS". COMPANY MAKES NO WARRANTIES,\nEXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n6.\nReturn of Materials. All documents and other tangible objects containing or representing Confidentia Information which are in\nthe possession of the Consultant shall be and remain the property of the Company and shall be promptly returned to the Company upon request for\nany reason or for no reason.\n7.\nWork Made for Hire.\n(a)\nConsultant and/or designates of the Consultant shall promptly and fully inform the Company of, and disclose to the Company, any\nand all ideas, processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, fictitious business names,\ntechnology, patents, know-how, trade secrets, computer programs, original works of authorship, formulae, concepts, themes, inventions, designs,\ncreations, new works, derivative works and discoveries, and all applications, improvements, rights and claims related to any the foregoing, and all\nother intellectual property, proprietary rights and work product, whether or not patentable or copyrightable, registered or unregistered or domestic or\nforeign, and whether or not relating to a published work, that Consultant develops, makes, creates, conceives or reduces to practice during the term\nof the Consulting Agreement that relate to the Company's business or result from work performed by the Consultant to the Company, whether alone\nor in collaboration with others (collectively, "Invention Ideas"). Consultant hereby assigns to the Company exclusively in perpetuity throughout the\nworld all right, title and interest (choate or inchoate) in (i) the Invention Ideas, (ii) all precursors, portions and work in progress with respect thereto\nand all inventions, works of authorship, mask works, technology, information, know-how, materials and tools relating thereto or to the development,\nsupport or maintenance thereof and (iii) all copyrights, patent rights, trade secret rights, trademark rights, mask works rights, sui generis database\nrights and all other intellectual and industrial property rights of any sort and all business, contract rights, causes of action, and goodwill in,\nincorporated or embodied in, used to develop, or related to any of the foregoing (collectively "Intellectual Property"). All copyrightable Invention\nIdeas are intended by Consultant to be a "work-made-for-hire" by Consultant for Company and owned by Company pursuant to Section 201 (b) of\nTitle 17 of the United States Code.\n(b)\nConsultant shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver\nall\nsuch other agreements, certificates, instruments and documents, as the Company may reasonably request in order to obtain patent or copyright\nregistration on all Invention Ideas and Intellectual Property, and shall execute and deliver all documents, instruments and agreements, including the\nformal execution of an assignment of copyright and/or patent application or issued patent, and do all things necessary or requested by the Company,\nin order to enable Company to ultimately and finally obtain and enforce full and exclusive title to all Invention Ideas and Intellectual Property and all\nrights assigned pursuant to this Section 7. Consultant hereby appoints the Company as Consultant's irrevocable attorney-in-fact for the purpose of\nexecuting and delivering all such documents, instruments and agreements, and performing all such acts, with the same legal force and effect as if\nexecuted and delivered and taken by Consultant.\n(c)\nIf for any reason the foregoing assignment is determined to be unenforceable Consultant grants to Company a perpetual,\nirrevocable, worldwide, royalty-free, exclusive, sub-licensable right and license to exploit and exercise all such Invention Ideas and Intellectual\nProperty.\n(d)\nBecause of the difficulty of establishing when Consultant first conceives of or develops Intellectual Property, proprietary rights or\nwork product or whether such Intellectual Property, proprietary\n7\nrights or work product results from access to Company's confidential and proprietary information or equipment, facilities or data. Consultant agrees\nthat any Intellectual Property, proprietary rights and work product shall be presumed to be an Invention Idea if it is conceived, developed, used, sold,\nexploited or reduced to practice by Consultant or with the aid of Consultant within one year after the normal termination of Consultant's employment\nwith Company. Consultant can rebut that presumption if Consultant proves that the intellectual property, proprietary rights and work product (i) was\nfirst conceived or developed after termination of Consultant's employment with and by Company; (ii) was conceived or developed entirely on\nConsultant's own time without using Company's equipment, supplies, facilities or confidential and proprietary information; and (iii) did not result\nfrom any work performed by Consultant for or on behalf of Company.\n(e)\nConsultant acknowledges that there is no intellectual property, proprietary right or work product that Consultant desires not to be\ndeemed Invention Ideas or Intellectual Property and thus to exclude from the above provisions of this Agreement. To the best of Consultant's\nknowledge, there is no other existing contract in conflict with this Agreement or any other contract to assign ideas, processes, trademarks, service\nmarks, inventions, technology, computer programs, original works of authorship, designs, formulas, discoveries, patents or copyrights that is now in\nexistence between Consultant and any other person or entity.\n(f)\nThis Section 7 shall not operate to require Consultant to assign to Company any of Consultant's rights to inventions, intellectual\nproperties or work products that would not be assignable under the provisions of California Labor Code Section 2870. Consultant represents and\nwarrants to Company that this paragraph constitutes Company's written notification to Consultant of the provisions of Section 2870 of the California\nLabor Code, and Consultant represents and warrants to Company that Consultant has reviewed Section 2870 of the California Labor Code.\n8.\nUnfair Competition and Protection of Proprietary Information.\n(a)\nConsultant shall not at any time (including after Consultant's employment with Company terminates) divulge, furnish or make\naccessible to anyone any of Company's Proprietary Information, or use in any way any of Company's Proprietary Information other than as\nreasonably required to perform Consultant's duties under this Agreement. Consultant shall not undertake any other acts or omissions that would\nreduce the value to Company of Company's Proprietary Information. The restrictions on Consultant's use of Company's Proprietary' Information\nshall not apply to knowledge or information that Consultant can prove is part of the public domain through no fault of Consultant. Consultant agrees\nthat such restrictions are fair and reasonable.\n(b)\nConsultant agrees that Company's Proprietary Information constitutes a unique and valuable asset of Company that Company\nacquired at great time and expense, and which is secret and confidential and will only be available to or communicated to Consultant in confidence\nin the course of Consultant's provision of services to Company. Consultant also agrees that any disclosure or other use of Company's Proprietary\nInformation other than for Company's sole benefit would be wrongful, would constitute unfair competition and will cause irreparable and\nincalculable harm to Company and to its subsidiaries, affiliates and divisions. In addition to all other remedies Company may have, it shall have the\nright to seek and obtain appropriate injunctive and other equitable relief, including emergency relief, to prevent any violations of this Section 8.\n(c)\nConsultant agrees that Company's employees constitute a valuable asset of Company. Consultant agrees that Consultant shall not,\nduring the Term and for a period of two years thereafter, directly or indirectly, for Consultant or on behalf of any other person or entity, solicit any\nperson who was an employee of or consultant to Company (at any time while Consultant is performing any services for\n8\nCompany, or at any time within twelve months prior to or after such solicitation) for a competing business or otherwise induce or attempt to induce\nany such persons to terminate their employment or relationship with Company or otherwise to disrupt or interfere, or attempt to disrupt or interfere,\nwith Company's employment or relationships with such persons. Consultant agrees that any such solicitation, inducement or interference would be\nwrongful and would constitute unfair competition, and will cause irreparable and incalculable harm to Company. Further, Consultant shall not\nengage in any other unfair competition with Company. Consultant agrees that such restrictions are fair and reasonable.\n(d)\nConsultant recognizes and agrees that Consultant has no expectation of privacy with respect to Company's telecommunications,\nnetworking or information processing systems (including stored computer files, e-mail messages and voice messages), and that Consultant's activity,\nand any files or messages, on or using any of those systems may be monitored at any time without notice.\n(e)\nAs used in this Agreement, "Company's Proprietary Information" means any knowledge, trade secrets (including "trade secretS" as\ndefined in Section 3426.1 of the California Civil Code), Invention Ideas, proprietary rights or proprietary information, intangible assets or property,\nand other intellectual property (whether or not copyrighted or copyrightable or patented or patentable), information and materials (including\nprocesses, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, technology, patents, patent applications\nand works of authorship), in whatever form, including electronic form, and all goodwill relating or appurtenant thereto, owned or licensed by\nCompany or any of its subsidiaries, affiliates or divisions, or directly or indirectly useful in any aspect of the business of Company or its subsidiaries,\naffiliates or divisions, whether or not marked as confidential or proprietary and whether developed by Consultant, by Company or its subsidiaries,\naffiliates or divisions or by others. Without limiting the foregoing, Company's Proprietary Information includes (a) the names, locations, practices\nand requirements of any of Company's customers, prospective customers, vendors, suppliers and personnel and any other persons having a business\nrelationship with Company; (b) confidential or secret development or research work of Company or its subsidiaries, affiliates or divisions, including\ninformation concerning any future or proposed services or products; (c) Company's accounting, cost, revenue and other financial records and\ndocuments and the contents thereof; (d) Company's documents, contracts, agreements, correspondence and other similar business records;\n(e) confidential or secret designs, software code, know how, processes, formulae, plans and devices; and (f) any other confidential or secret aspect\nof\nthe business of Company or its subsidiaries, affiliates or divisions.\n9.\nRemedies.\n(a)\nThe Consultant agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the Company,\nentitling the Company to obtain injunctive relief in addition to all legal remedies at its disposal.\n(b)\nIn addition to all remedies available hereunder, at law or in equity, if Consultant breaches any provision of Section 8 of this\nAgreement, Company shall have the right to invoke any and all remedies provided under the California Uniform Trade Secrets Act (California Civil\nCode 83426, et seq.) or other statutes or common law remedies of similar effect.\n(c)\nThe remedies provided to Company in this Section 10 are cumulative, and not exclusive, of any other remedies that may be\navailable to Company at law or in equity.\n10.\nNo License. Nothing in this Agreement is intended to grant any rights to the Consultant under any patent, copyright or other\nproprietary rights of the Company, nor shall this Agreement grant the Consultant any rights in or to Confidential Information except as expressly set\nforth herein.\n9\n11.\nTerm. This Agreement shall survive the term of the Consulting Agreement and shall continue until such time as all Confidential\nInformation disclosed hereunder becomes publicly known and made generally available through no action or inaction of the Consultant.\n12.\nMiscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This\nAgreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. This document contains the\nentire\nagreement between the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not\nconstitute a waiver thereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a writing\nsigned by both parties hereto.\nIN\nWITNESS WHEREOF, the parties hereto have executed or caused their duly authorized officers to execute this Agreement as of the date\nfirst above written.\nBIOLARGO, INC. ("COMPANY")\nBy /s/ Dennis Calvert\nDennis Calvert\nTitle: President and Chief Executive Officer\nHOWARD ISAACS ("CONSULTANT")\n/s/ Howard Isaacs\n- 10	Appendix A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) dated as of November 6, 2008 is entered in by and between BioLargo. Inc. (the\n“Company”) and Howard Isaacs (the “Consultant”), and sets forth the terms and conditions on which Company is willing to disclose certain material\nnon-public information about the Company.\n1.\nPurpose. In connection with his retention as a consultant to the Company pursuant to an agreement dated as of even date (the\n“Consulting Agreement”), the Company may disclose to the Consultant certain confidential technical and business information which the Company\nrequires the Consultant to treat as confidential.\n2.\nDefinition. “Confidential Information” means any information disclosed to the Consultant by the Company, either directly or\nindirectly in writing, orally or by inspection of tangible objects, including without limitation documents, prototypes and forecasted financial\ninformation. Confidential Information may also include information disclosed to the Company by third parties. Confidential Information shall not,\nhowever, include any information which the Consultant can establish by written documentation (i) was publicly known and made generally available\nin the public domain prior to the time of disclosure to the Consultant by the Company; (ii) becomes publicly known and made generally available\nafter disclosure to the Consultant by the Company through no action or inaction of the Consultant; (iii) is in the possession of the Consultant, without\nconfidentiality restrictions, at the time of disclosure by the Company as shown by the Consultant’s files and records immediately prior to the time of\ndisclosure; (iv) is developed independently of the Confidential Information, as shown by written records prepared contemporaneously with such\nindependent development; or (v) is disclosed pursuant to the requirement of a United States government agency or judicial body, provided that the\nConsultant shall provide reasonable advice notice thereof to enable the Company to seek a protective order or otherwise prevent such disclosure.\n3.\nNon-use and Non-disclosure. The Consultant agrees not to use any Confidential Information for any purpose except within the\nproper scope of his duties pursuant to the Consulting Agreement. The Consultant agrees not to disclose any Confidential Information to third parties,\nexcept to those individuals who, with the prior written consent of the Company, are designated as authorized to receive such Confidential\nInformation in order for the Consultant to perform his duties and obligations under the Consulting Agreement. The Consultant agrees that each third\nparty receiving any Confidential Information will enter into a separate Non-Disclosure Agreement with the Company.\n4.\nMaintenance of Confidentiality. The Consultant agrees that it shall take all commercially reasonable measures to protect the\nsecrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Consultant shall take at\nleast those measures that the Consultant takes to protect its own confidential information of a similar nature and shall have its employees or advisors\nwho have access to Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the provisions hereof,\nprior to any disclosure of Confidential Information to such employees. The Consultant shall immediately notify the Company in the event of any\nunauthorized use or disclosure of any Confidential Information.\n-6-\n5.\nNo Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. COMPANY MAKES NO WARRANTIES,\nEXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n6.\nReturn of Materials. All documents and other tangible objects containing or representing Confidential Information which are in\nthe possession of the Consultant shall be and remain the property of the Company and shall be promptly returned to the Company upon request for\nany reason or for no reason.\n7.\nWork Made for Hire.\n(a)\nConsultant and/or designates of the Consultant shall promptly and fully inform the Company of, and disclose to the Company, any\nand all ideas, processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, fictitious business names,\ntechnology, patents, know-how, trade secrets, computer programs, original works of authorship, formulae, concepts, themes, inventions, designs,\ncreations, new works, derivative works and discoveries, and all applications, improvements, rights and claims related to any the foregoing, and all\nother intellectual property, proprietary rights and work product, whether or not patentable or copyrightable, registered or unregistered or domestic or\nforeign, and whether or not relating to a published work, that Consultant develops, makes, creates, conceives or reduces to practice during the term\nof the Consulting Agreement that relate to the Company’s business or result from work performed by the Consultant to the Company, whether alone\nor in collaboration with others (collectively, “Invention Ideas”). Consultant hereby assigns to the Company exclusively in perpetuity throughout the\nworld all right, title and interest (choate or inchoate) in (i) the Invention Ideas, (ii) all precursors, portions and work in progress with respect thereto\nand all inventions, works of authorship, mask works, technology, information, know-how, materials and tools relating thereto or to the development,\nsupport or maintenance thereof and (iii) all copyrights, patent rights, trade secret rights, trademark rights, mask works rights, sui generis database\nrights and all other intellectual and industrial property rights of any sort and all business, contract rights, causes of action, and goodwill in,\nincorporated or embodied in, used to develop, or related to any of the foregoing (collectively “Intellectual Property”). All copyrightable Invention\nIdeas are intended by Consultant to be a “work-made-for-hire” by Consultant for Company and owned by Company pursuant to Section 201 (b) of\nTitle 17 of the United States Code.\n(b)\nConsultant shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver\nall such other agreements, certificates, instruments and documents, as the Company may reasonably request in order to obtain patent or copyright\nregistration on all Invention Ideas and Intellectual Property, and shall execute and deliver all documents, instruments and agreements, including the\nformal execution of an assignment of copyright and/or patent application or issued patent, and do all things necessary or requested by the Company,\nin order to enable Company to ultimately and finally obtain and enforce full and exclusive title to all Invention Ideas and Intellectual Property and all\nrights assigned pursuant to this Section 7. Consultant hereby appoints the Company as Consultant’s irrevocable attorney-in-fact for the purpose of\nexecuting and delivering all such documents, instruments and agreements, and performing all such acts, with the same legal force and effect as if\nexecuted and delivered and taken by Consultant.\n(c)\nIf for any reason the foregoing assignment is determined to be unenforceable Consultant grants to Company a perpetual,\nirrevocable, worldwide, royalty-free, exclusive, sub-licensable right and license to exploit and exercise all such Invention Ideas and Intellectual\nProperty.\n(d)\nBecause of the difficulty of establishing when Consultant first conceives of or develops Intellectual Property, proprietary rights or\nwork product or whether such Intellectual Property, proprietary\n-7-\nrights or work product results from access to Company’s confidential and proprietary information or equipment, facilities or data. Consultant agrees\nthat any Intellectual Property, proprietary rights and work product shall be presumed to be an Invention Idea if it is conceived, developed, used, sold,\nexploited or reduced to practice by Consultant or with the aid of Consultant within one year after the normal termination of Consultant’s employment\nwith Company. Consultant can rebut that presumption if Consultant proves that the intellectual property, proprietary rights and work product (i) was\nfirst conceived or developed after termination of Consultant’s employment with and by Company; (ii) was conceived or developed entirely on\nConsultant’s own time without using Company’s equipment, supplies, facilities or confidential and proprietary information; and (iii) did not result\nfrom any work performed by Consultant for or on behalf of Company.\n(e)\nConsultant acknowledges that there is no intellectual property, proprietary right or work product that Consultant desires not to be\ndeemed Invention Ideas or Intellectual Property and thus to exclude from the above provisions of this Agreement. To the best of Consultant’s\nknowledge, there is no other existing contract in conflict with this Agreement or any other contract to assign ideas, processes, trademarks, service\nmarks, inventions, technology, computer programs, original works of authorship, designs, formulas, discoveries, patents or copyrights that is now in\nexistence between Consultant and any other person or entity.\n(f)\nThis Section 7 shall not operate to require Consultant to assign to Company any of Consultant’s rights to inventions, intellectual\nproperties or work products that would not be assignable under the provisions of California Labor Code Section 2870. Consultant represents and\nwarrants to Company that this paragraph constitutes Company’s written notification to Consultant of the provisions of Section 2870 of the California\nLabor Code, and Consultant represents and warrants to Company that Consultant has reviewed Section 2870 of the California Labor Code.\n8.\nUnfair Competition and Protection of Proprietary Information.\n(a)\nConsultant shall not at any time (including after Consultant’s employment with Company terminates) divulge, furnish or make\naccessible to anyone any of Company’s Proprietary Information, or use in any way any of Company’s Proprietary Information other than as\nreasonably required to perform Consultant’s duties under this Agreement. Consultant shall not undertake any other acts or omissions that would\nreduce the value to Company of Company’s Proprietary Information. The restrictions on Consultant’s use of Company’s Proprietary’ Information\nshall not apply to knowledge or information that Consultant can prove is part of the public domain through no fault of Consultant. Consultant agrees\nthat such restrictions are fair and reasonable.\n(b)\nConsultant agrees that Company’s Proprietary Information constitutes a unique and valuable asset of Company that Company\nacquired at great time and expense, and which is secret and confidential and will only be available to or communicated to Consultant in confidence\nin the course of Consultant’s provision of services to Company. Consultant also agrees that any disclosure or other use of Company’s Proprietary\nInformation other than for Company’s sole benefit would be wrongful, would constitute unfair competition and will cause irreparable and\nincalculable harm to Company and to its subsidiaries, affiliates and divisions. In addition to all other remedies Company may have, it shall have the\nright to seek and obtain appropriate injunctive and other equitable relief, including emergency relief, to prevent any violations of this Section 8.\n(c)\nConsultant agrees that Company’s employees constitute a valuable asset of Company. Consultant agrees that Consultant shall not,\nduring the Term and for a period of two years thereafter, directly or indirectly, for Consultant or on behalf of any other person or entity, solicit any\nperson who was an employee of or consultant to Company (at any time while Consultant is performing any services for\n-8-\nCompany, or at any time within twelve months prior to or after such solicitation) for a competing business or otherwise induce or attempt to induce\nany such persons to terminate their employment or relationship with Company or otherwise to disrupt or interfere, or attempt to disrupt or interfere,\nwith Company’s employment or relationships with such persons. Consultant agrees that any such solicitation, inducement or interference would be\nwrongful and would constitute unfair competition, and will cause irreparable and incalculable harm to Company. Further, Consultant shall not\nengage in any other unfair competition with Company. Consultant agrees that such restrictions are fair and reasonable.\n(d)\nConsultant recognizes and agrees that Consultant has no expectation of privacy with respect to Company’s telecommunications,\nnetworking or information processing systems (including stored computer files, e-mail messages and voice messages), and that Consultant’s activity,\nand any files or messages, on or using any of those systems may be monitored at any time without notice.\n(e)\nAs used in this Agreement, “Company’s Proprietary Information” means any knowledge, trade secrets (including “trade secrets” as\ndefined in Section 3426.1 of the California Civil Code), Invention Ideas, proprietary rights or proprietary information, intangible assets or property,\nand other intellectual property (whether or not copyrighted or copyrightable or patented or patentable), information and materials (including\nprocesses, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, technology, patents, patent applications\nand works of authorship), in whatever form, including electronic form, and all goodwill relating or appurtenant thereto, owned or licensed by\nCompany or any of its subsidiaries, affiliates or divisions, or directly or indirectly useful in any aspect of the business of Company or its subsidiaries,\naffiliates or divisions, whether or not marked as confidential or proprietary and whether developed by Consultant, by Company or its subsidiaries,\naffiliates or divisions or by others. Without limiting the foregoing, Company’s Proprietary Information includes (a) the names, locations, practices\nand requirements of any of Company’s customers, prospective customers, vendors, suppliers and personnel and any other persons having a business\nrelationship with Company; (b) confidential or secret development or research work of Company or its subsidiaries, affiliates or divisions, including\ninformation concerning any future or proposed services or products; (c) Company’s accounting, cost, revenue and other financial records and\ndocuments and the contents thereof; (d) Company’s documents, contracts, agreements, correspondence and other similar business records;\n(e) confidential or secret designs, software code, know how, processes, formulae, plans and devices; and (f) any other confidential or secret aspect of\nthe business of Company or its subsidiaries, affiliates or divisions.\n9.\nRemedies.\n(a)\nThe Consultant agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the Company,\nentitling the Company to obtain injunctive relief in addition to all legal remedies at its disposal.\n(b)\nIn addition to all remedies available hereunder, at law or in equity, if Consultant breaches any provision of Section 8 of this\nAgreement, Company shall have the right to invoke any and all remedies provided under the California Uniform Trade Secrets Act (California Civil\nCode §§3426, et seq.) or other statutes or common law remedies of similar effect.\n(c)\nThe remedies provided to Company in this Section 10 are cumulative, and not exclusive, of any other remedies that may be\navailable to Company at law or in equity.\n10.\nNo License. Nothing in this Agreement is intended to grant any rights to the Consultant under any patent, copyright or other\nproprietary rights of the Company, nor shall this Agreement grant the Consultant any rights in or to Confidential Information except as expressly set\nforth herein.\n-9-\n11.\nTerm. This Agreement shall survive the term of the Consulting Agreement and shall continue until such time as all Confidential\nInformation disclosed hereunder becomes publicly known and made generally available through no action or inaction of the Consultant.\n12.\nMiscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This\nAgreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. This document contains the\nentire agreement between the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not\nconstitute a waiver thereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a writing\nsigned by both parties hereto.\nIN WITNESS WHEREOF, the parties hereto have executed or caused their duly authorized officers to execute this Agreement as of the date\nfirst above written.\nBIOLARGO, INC. (“COMPANY”)\nBy /s/ Dennis Calvert\nDennis Calvert\nTitle: President and Chief Executive Officer\nHOWARD ISAACS (“CONSULTANT”)\n/s/ Howard Isaacs\n-10-
+762b493ffbbb2eeaa53b4acb586ba2f8.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 9 a2179028zex-99 _d3.htm EXHIBIT 99.(D)(3)\nQuickLinks -- Click here to rapidly navigate through this document\nExhibit (d)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this "Agreement") is made as of May 9, 2007 by and between Opsware Inc., a Delaware\ncorporation (the "Company"), and Hewlett-Packard Company, a Delaware corporation ("HP").\nThe Company and HP are evaluating entering into a potential business transaction (the "Transaction") under which each may disclose certain\ninformation, including Confidential Information (as defined below), to the other. As a condition to such information being furnished to each party, its\nsubsidiaries and other individuals and entities controlled, directly or indirectly, by such party ("Affiliates") and the respective directors, officers,\nemployees, agents, representatives, consultants, accountants, attorneys and advisors of such party and its Affiliates (collectively with such Affiliates,\n"Associates"), each party agrees to treat the other party's Confidential Information in accordance with the provisions of this Agreement, and to take\nor abstain from taking certain other actions, as described in this Agreement. A party disclosing Confidential Information hereunder is referred to\nherein as "the disclosing party" and a party receiving the Confidential Information of a disclosing party hereunder is referred to herein as "the\nreceiving party."\n1. Nondisclosure of Confidential Information.\n"Confidential Information" means any information, technical data or know-how, including, but not limited to, that which relates to research,\nproduct or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other strategic\npartners, stockholders, markets, software, know-how, developments, inventions, processes, designs, drawings, engineering, hardware configuration\ninformation, marketing, finances, notes, analyses or studies and all tangible and intangible embodiments thereof of any kind whatsoever, whether\nconveyed in writing or orally by the disclosing party or its Associates to the receiving party or its Associates in connection with the evaluation of a\nTransaction. The term "Confidential Information" shall be deemed to include those portions of any notes, analyses, compilations, studies,\ninterpretations, memoranda or other documents (regardless of the form thereof) prepared by the receiving party or its Associates which contain,\nreflect or are based upon, in whole or in part, any information furnished to the receiving party or its Associates pursuant hereto. Notwithstanding the\nforegoing, Confidential Information does not include information, technical data or know-how which: (i) is rightfully in the possession of the\nreceiving party at the time of disclosure as shown by the receiving party's files and records immediately prior to the time of disclosure; (ii) prior to or\nafter the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party in\nviolation of its obligations hereunder; (iii) is obtained by the receiving party from a source other than the disclosing party or any of its Associates,\nwhich source is not known by the receiving party to have any obligation of confidentiality to the disclosing party with respect to such information\n(iv) is approved, in writing, for release by the disclosing party; or (v) the receiving party can document was independently developed by the\nreceiving party without use of or reference to the disclosing party's Confidential Information.\nEach of the parties hereto agrees not to use the Confidential Information disclosed to it by the other party or its Associates for its own use or for\nany purpose except to evaluate the contemplated Transaction. Neither party will disclose any Confidential Information of the other party to third\nparties except those Associates of such party who are required to have the information in order to carry out the evaluation and discussions\nconcerning the contemplated Transaction. The receiving party shall inform its Associates of the confidential nature of the Confidential Information\nand shall instruct them to treat the information confidentially. The receiving party shall be responsible for any breach of this Agreement by its\nAssociates and agrees, at its sole expense, to take all reasonable measures to restrain\n1\nits Associates from prohibited or unauthorized disclosure or use of the Confidential Information. Each party agrees that it will take all reasonable\nmeasures to protect the secrecy of and avoid disclosure or use of Confidential Information of the other party in order to prevent it from falling into\nthe public domain or the possession of persons other than those persons authorized hereunder to have any such information, which measures shall\ninclude at least the same degree of care that the receiving party utilizes to protect its own Confidential Information of a similar nature. Each party\nagrees to notify the other party in writing of any misuse or misappropriation of such Confidential Information of the other party that may come to its\nattention.\nPromptly upon request by the disclosing party, and except as otherwise prohibited by law, the receiving party will, and will direct its Associates\nto, (i) return or, at the election of the receiving party, destroy any written Confidential Information provided by the disclosing party or its Associates\npursuant hereto and all copies or modifications thereof, and (ii) destroy those portions of any notes, analyses, compilations, studies, interpretations,\nmemoranda or other documents (regardless of the form thereof) prepared by the receiving party or its Associates which contain, reflect or are based\nupon, in whole or in part, any Confidential Information provided by the disclosing party or its Associates pursuant hereto, with any such destruction\nhereunder to be certified in writing by the receiving party. Notwithstanding the foregoing, (i) the receiving party and its Associates shall not be\nrequired to destroy any back-up computer records or other archived electronic files containing Confidential Information, (ii) the receiving party may\nretain a copy of any Confidential Information for its internal legal department files and (iii) the receiving party's Associates may retain a copy of any\nConfidential Information to the extent, and for only so long as, required pursuant to the regulatory compliance policies of such Associate; provided\nthat, in each such case, the party so retaining such Confidential Information shall exercise reasonable care in protecting the confidentiality of such\nConfidential Information from unauthorized use or disclosure.\n2. Nonpublicity. The existence and the terms of this Agreement, the Transaction contemplated hereby and the existence, nature and status\nof the discussions between the parties shall be treated as Confidential Information hereunder, shall be maintained in strict confidence by the parties\nhereto and by their respective Associates and shall not be disclosed to any third party.\n3. Required Disclosure. In the event that a receiving party or its Associates become legally compelled under applicable law, regulation or\nsecurities exchange listing agreement, or by a competent governmental, administrative or regulatory authority or in a proceeding before a court,\narbitrator or administrative agency to disclose any portion of the Confidential Information of a disclosing party, that discussions or negotiations\nbetween the parties hereto are taking place, or any of the terms, conditions or other facts with respect to the Transaction, including the status thereof,\nthe receiving party will, and will direct its Associates to, provide the disclosing party with prompt written notice (unless prohibited by law) of such\nlegal compulsion, and shall delay disclosure, if and to the extent permitted or practicable, until the disclosing party has had an opportunity to seek a\nprotective order or other appropriate remedy or to waive compliance by the receiving party and/or its Associates with the relevant provisions of this\nAgreement. In the event that a protective order or other remedy is not obtained in such a proceeding, or the disclosing party fails to waive\ncompliance with the relevant provisions of this Agreement, the receiving party agrees that it will, and will direct its Associates to, disclose only that\nConfidential Information of the disclosing party which its counsel advises is legally required to be disclosed and will exercise commercially\nreasonable efforts, and will direct its Associates to exercise their commercially reasonable efforts, at the request and expense of the disclosing party,\nto cooperate with the disclosing party to obtain reliable assurance that confidential treatment will be accorded the Confidential Information which is\nso disclosed.\n4. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret or\nother intellectual property right nor shall this Agreement grant either party any rights in or to the other party's Confidential Information, except the\n2\nlimited right to review such Confidential Information solely for the purposes of determining whether to enter into, and the undertaking of or the\nadvising with respect to, a possible Transaction.\n5. No Representation of Accuracy. Each party acknowledges that neither the other party nor any of its Associates has made any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information made available by the other party\nor its Associates. Each party agrees that, except as set forth in a definitive agreement executed by the parties, neither party nor any of its Associates\nshall have any liability to the other party or to any of its Associates relating to or resulting from the use of such other party's Confidential\nInformation or any errors therein or omissions therefrom. Only those representations or warranties made in a definitive agreement, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n6. Standstill.\n(a) Until twelve (12) months from the date of this Agreement, without the prior written consent of the Company, neither HP nor any of\nits Affiliates will in any manner, directly or indirectly, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause\nor participate in, (i) any acquisition of any issued and outstanding securities (or beneficial ownership thereof) of the Company or assets of the\nCompany or any of its subsidiaries (other than immaterial acquisitions of securities of the Company by individual Affiliates of HP who are\nnot controlled by HP and acquisitions of assets in the ordinary course of business); (ii) any tender or exchange offer, merger or other business\ncombination involving the Company; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with\nrespect to the Company; or (iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange\nCommission) or consents to vote any voting securities of the Company; (b) form, join or in any way participate in a "group" (as defined\nunder the Securities Exchange Act of 1934, as amended (the "1934 Act")) with respect to the outstanding securities of the Company; (c)\notherwise act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of the Company;\n(d) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in (a)\nthrough (d) above; or (e) enter into any agreements with any third party with respect to any of the foregoing; provided, however, that HP\nshall not be required to obtain the prior written consent of the Company to engage in any of the foregoing actions following a Significant\nEvent (as defined below); provided further, that HP shall not be prohibited from making or discussing any offers regarding a transaction\ndescribed in clause (a)(i) above directly to or with the management or the Board of Directors of the Company, or their designated\nrepresentatives.\n(b) As used herein, the following terms shall have the following meanings:\n(i) "Significant Event" shall mean any of (i) the acquisition by a person, entity or 13D Group (as defined below), other than\nHP, of beneficial ownership of voting stock of the Company (the "Voting Stock") representing fifteen percent (15%) or more of the\nthen-outstanding Voting Stock; (ii) the announcement or commencement by a person, entity or 13D Group, other than HP, of a tender\nor exchange offer to acquire Voting Stock which, if successful, would result in such person, entity or 13D Group owning, when\ncombined with any other Voting Stock owned by such person, entity or 13D Group, fifteen percent (15%) or more of the then-\noutstanding Voting Stock; or (iii) the entering into by the Company, or publicly announced determination by the Company to seek to\nenter into, any merger, sale or other business combination transaction, other than a transaction with HP, pursuant to which (A) the\noutstanding shares of common stock of the Company (the "Common Stock") would be converted into cash or securities of another\nperson, entity or 13D Group, other than HP, (B)\n3\nfifty percent (50%) or more of the then-current issued and outstanding shares of Common Stock would be owned by a person or\nentity other than the then-current holders of shares of Common Stock or (C) would result in all or substantially all of the Company's\nassets being sold to any person, entity or 13D Group, other than HP (unless the Company's stockholders immediately prior to such\nsale of all or substantially all of the Company's assets will hold Voting Stock representing at least fifty percent (50%) of the voting\npower of the person, entity or 13D Group purchasing such assets).\n(ii) "13D Group" shall mean any group of persons or entities formed for the purpose of acquiring, holding, voting or disposing\nof Voting Stock which would be required under Section 13(d) of the 1934 Act and the rules and regulations thereunder to file a\nstatement on Schedule 13D with the Securities and Exchange Commission as a "person" within the meaning of section 13(d)(3) of\nthe Exchange Act if such group beneficially owned voting securities representing more than five percent (5%) of the Total Voting\nPower.\n(iii) "Total Voting Power" shall mean the total number of votes which may be cast in the election of directors of the Company at\nany meeting of the stockholders of the Company, if all Voting Stock was represented and voted to the fullest extent possible at such\nmeeting, other than the votes that may be cast only upon the happening of a contingency that has not occurred as of the relevant time.\n7. Securities Law Compliance. Each party acknowledges that it is aware, and that it will advise its Associates who receive Confidential\nInformation of the other party, that the United States securities laws prohibit any person who has material, non public information concerning the\nmatters which are the subject of this Agreement from purchasing or selling securities of such other party (and options, warrants and rights relating\nthereto) or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person\nincluding, without limitation, any of such party's Associates, is likely to purchase or sell such securities; and each party agrees to fully comply with\nsuch laws.\n8. Definitive Agreements. Each party acknowledges and agrees that other than with respect to the matters specifically set forth herein, no\ncontract or agreement providing for any transaction of the type contemplated by this Agreement shall be deemed to exist between the parties unless\nand until a definitive agreement has been executed and delivered. The parties further agree that each party reserves the right, in its sole discretion, to\nreject any and all proposals made by the other party or any of its Associates with regard to a transaction between the parties, and to terminate\ndiscussions or negotiations at any time.\n9. Similar Products. Each disclosing party acknowledges that the receiving party or its Associates may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the disclosing party's Confidential Information.\nNothing in this Agreement will prohibit the receiving party or its Associates from developing, manufacturing, marketing, selling, servicing or\nsupporting or having developed, manufactured, marketed, sold, serviced or supported for it products, concepts, systems or techniques that are similar\nto or compete with the products, concepts, systems or techniques contemplated by or embodied in the disclosing party's Confidential Information,\nprovided that the receiving party and its Associates do not use any of the disclosing party's Confidential Information in connection with such\nactivities. Neither party nor its respective Associates shall have any obligation to limit or restrict the assignment of its respective employees or\nconsultants as a result of their having had access to Confidential Information of the other party or its Associates. The receiving party and its\nAssociates, if any, may use and disclose any Residuals for any purpose, except that no license to any patent, trademark, mask work or copyright of\nthe disclosing party is granted under this Section. Residuals means disclosed Confidential Information remembered by those individuals within the\nscope of the receiving party's obligations under this\n4\nAgreement who no longer have access to the disclosed Confidential Information. However, Residuals does not include any detailed financial or\npersonnel data, or the identity of the disclosing party.\n10. Term. The foregoing commitments of either party in this Agreement regarding the confidentiality and non-use of Confidential\nInformation shall survive any termination of discussions between the parties, and shall continue for a period of twelve (12) months following the\ndate of this Agreement.\n11. Notice. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in writing\nand shall be deemed properly given on the day of delivery if delivered by hand or facsimile (with confirmation of delivery), or on the first business\nday after being sent by registered overnight mail, return receipt requested, by overnight courier or overnight express delivery service or facsimile (in\neach case, with confirmation of delivery) to the address or facsimile telephone number set forth beneath the name of such party below (or to such\nother address or facsimile telephone number as such party shall have specified in a written notice given to the other parties hereto):\nif to HP:\nHewlett-Packard Company\n3000 Hanover Street\nPalo Alto, CA 94304\nAttn: General Counsel\nFax number: (650) 857-2012\nif to Company:\nOpsware Inc.\n599 N. Mathilda Avenue\nSunnyvale, CA 94085\nAttn : John O'Farrell\nFax number: (408) 904-6176\n12. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the\nState of Delaware applicable to agreements made and to be performed within that state. Each of the parties hereby agree and irrevocably consent to\npersonal jurisdiction and venue in any federal or state court within Wilmington, Delaware, having subject matter jurisdiction, for the purposes of any\naction, suit or proceeding arising out of or relating to this agreement. To the fullest extent permitted by law, each of the parties hereby agree to waive\ntrial by jury in any action proceeding or counterclaim brought by or on behalf of either party with respect to any matter whatsoever relating to this\nAgreement.\n13. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto and supersedes all other prior agreements\nand understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof. All\nmodifications of, waivers of and amendments to this letter agreement must be in writing and signed by both parties hereto.\n14. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument. Any counterpart signed by an authorized representative of a party and delivered to the other party by\ntelecopier shall be deemed an original counterpart and duly delivered.\n[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]\n5\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.\nOPSWARE INC.\nBy:\n/s/ JOHN O'FARRELL\nName:\nJohn O'Farrell\nTitle:\nEVP Bus. Dev.\nHEWLETT-PACKARD COMPANY\nBy:\n/s/ SANDEEP JOHRI\nName:\nSandeep Johri\nTitle:\nV.P. Strategy & Corp. Dev.\n6	EX-99.(D)(3) 9 a2179028zex-99_d3.htm EXHIBIT 99.(D)(3)\nQuickLinks -- Click here to rapidly navigate through this document\nExhibit (d)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this "Agreement") is made as of May 9, 2007 by and between Opsware Inc., a Delaware\ncorporation (the "Company"), and Hewlett-Packard Company, a Delaware corporation ("HP").\nThe Company and HP are evaluating entering into a potential business transaction (the "Transaction") under which each may disclose certain\ninformation, including Confidential Information (as defined below), to the other. As a condition to such information being furnished to each party, its\nsubsidiaries and other individuals and entities controlled, directly or indirectly, by such party ("Affiliates") and the respective directors, officers,\nemployees, agents, representatives, consultants, accountants, attorneys and advisors of such party and its Affiliates (collectively with such Affiliates,\n"Associates"), each party agrees to treat the other party's Confidential Information in accordance with the provisions of this Agreement, and to take\nor abstain from taking certain other actions, as described in this Agreement. A party disclosing Confidential Information hereunder is referred to\nherein as "the disclosing party" and a party receiving the Confidential Information of a disclosing party hereunder is referred to herein as "the\nreceiving party."\n1. Nondisclosure of Confidential Information.\n"Confidential Information" means any information, technical data or know-how, including, but not limited to, that which relates to research,\nproduct or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other strategic\npartners, stockholders, markets, software, know-how, developments, inventions, processes, designs, drawings, engineering, hardware configuration\ninformation, marketing, finances, notes, analyses or studies and all tangible and intangible embodiments thereof of any kind whatsoever, whether\nconveyed in writing or orally by the disclosing party or its Associates to the receiving party or its Associates in connection with the evaluation of a\nTransaction. The term "Confidential Information" shall be deemed to include those portions of any notes, analyses, compilations, studies,\ninterpretations, memoranda or other documents (regardless of the form thereof) prepared by the receiving party or its Associates which contain,\nreflect or are based upon, in whole or in part, any information furnished to the receiving party or its Associates pursuant hereto. Notwithstanding the\nforegoing, Confidential Information does not include information, technical data or know-how which: (i) is rightfully in the possession of the\nreceiving party at the time of disclosure as shown by the receiving party's files and records immediately prior to the time of disclosure; (ii) prior to or\nafter the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party in\nviolation of its obligations hereunder; (iii) is obtained by the receiving party from a source other than the disclosing party or any of its Associates,\nwhich source is not known by the receiving party to have any obligation of confidentiality to the disclosing party with respect to such information\n(iv) is approved, in writing, for release by the disclosing party; or (v) the receiving party can document was independently developed by the\nreceiving party without use of or reference to the disclosing party's Confidential Information.\nEach of the parties hereto agrees not to use the Confidential Information disclosed to it by the other party or its Associates for its own use or for\nany purpose except to evaluate the contemplated Transaction. Neither party will disclose any Confidential Information of the other party to third\nparties except those Associates of such party who are required to have the information in order to carry out the evaluation and discussions\nconcerning the contemplated Transaction. The receiving party shall inform its Associates of the confidential nature of the Confidential Information\nand shall instruct them to treat the information confidentially. The receiving party shall be responsible for any breach of this Agreement by its\nAssociates and agrees, at its sole expense, to take all reasonable measures to restrain\n1\nits Associates from prohibited or unauthorized disclosure or use of the Confidential Information. Each party agrees that it will take all reasonable\nmeasures to protect the secrecy of and avoid disclosure or use of Confidential Information of the other party in order to prevent it from falling into\nthe public domain or the possession of persons other than those persons authorized hereunder to have any such information, which measures shall\ninclude at least the same degree of care that the receiving party utilizes to protect its own Confidential Information of a similar nature. Each party\nagrees to notify the other party in writing of any misuse or misappropriation of such Confidential Information of the other party that may come to its\nattention.\nPromptly upon request by the disclosing party, and except as otherwise prohibited by law, the receiving party will, and will direct its Associates\nto, (i) return or, at the election of the receiving party, destroy any written Confidential Information provided by the disclosing party or its Associates\npursuant hereto and all copies or modifications thereof, and (ii) destroy those portions of any notes, analyses, compilations, studies, interpretations,\nmemoranda or other documents (regardless of the form thereof) prepared by the receiving party or its Associates which contain, reflect or are based\nupon, in whole or in part, any Confidential Information provided by the disclosing party or its Associates pursuant hereto, with any such destruction\nhereunder to be certified in writing by the receiving party. Notwithstanding the foregoing, (i) the receiving party and its Associates shall not be\nrequired to destroy any back-up computer records or other archived electronic files containing Confidential Information, (ii) the receiving party may\nretain a copy of any Confidential Information for its internal legal department files and (iii) the receiving party's Associates may retain a copy of any\nConfidential Information to the extent, and for only so long as, required pursuant to the regulatory compliance policies of such Associate; provided\nthat, in each such case, the party so retaining such Confidential Information shall exercise reasonable care in protecting the confidentiality of such\nConfidential Information from unauthorized use or disclosure.\n2.  Nonpublicity. The existence and the terms of this Agreement, the Transaction contemplated hereby and the existence, nature and status\nof the discussions between the parties shall be treated as Confidential Information hereunder, shall be maintained in strict confidence by the parties\nhereto and by their respective Associates and shall not be disclosed to any third party.\n3. Required Disclosure. In the event that a receiving party or its Associates become legally compelled under applicable law, regulation or\nsecurities exchange listing agreement, or by a competent governmental, administrative or regulatory authority or in a proceeding before a court,\narbitrator or administrative agency to disclose any portion of the Confidential Information of a disclosing party, that discussions or negotiations\nbetween the parties hereto are taking place, or any of the terms, conditions or other facts with respect to the Transaction, including the status thereof,\nthe receiving party will, and will direct its Associates to, provide the disclosing party with prompt written notice (unless prohibited by law) of such\nlegal compulsion, and shall delay disclosure, if and to the extent permitted or practicable, until the disclosing party has had an opportunity to seek a\nprotective order or other appropriate remedy or to waive compliance by the receiving party and/or its Associates with the relevant provisions of this\nAgreement. In the event that a protective order or other remedy is not obtained in such a proceeding, or the disclosing party fails to waive\ncompliance with the relevant provisions of this Agreement, the receiving party agrees that it will, and will direct its Associates to, disclose only that\nConfidential Information of the disclosing party which its counsel advises is legally required to be disclosed and will exercise commercially\nreasonable efforts, and will direct its Associates to exercise their commercially reasonable efforts, at the request and expense of the disclosing party,\nto cooperate with the disclosing party to obtain reliable assurance that confidential treatment will be accorded the Confidential Information which is\nso disclosed.\n4. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret or\nother intellectual property right nor shall this Agreement grant either party any rights in or to the other party's Confidential Information, except the\n2\nlimited right to review such Confidential Information solely for the purposes of determining whether to enter into, and the undertaking of or the\nadvising with respect to, a possible Transaction.\n5. No Representation of Accuracy. Each party acknowledges that neither the other party nor any of its Associates has made any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information made available by the other party\nor its Associates. Each party agrees that, except as set forth in a definitive agreement executed by the parties, neither party nor any of its Associates\nshall have any liability to the other party or to any of its Associates relating to or resulting from the use of such other party's Confidential\nInformation or any errors therein or omissions therefrom. Only those representations or warranties made in a definitive agreement, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n6. Standstill.\n(a) Until twelve (12) months from the date of this Agreement, without the prior written consent of the Company, neither HP nor any of\nits Affiliates will in any manner, directly or indirectly, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause\nor participate in, (i) any acquisition of any issued and outstanding securities (or beneficial ownership thereof) of the Company or assets of the\nCompany or any of its subsidiaries (other than immaterial acquisitions of securities of the Company by individual Affiliates of HP who are\nnot controlled by HP and acquisitions of assets in the ordinary course of business); (ii) any tender or exchange offer, merger or other business\ncombination involving the Company; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with\nrespect to the Company; or (iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange\nCommission) or consents to vote any voting securities of the Company; (b) form, join or in any way participate in a "group" (as defined\nunder the Securities Exchange Act of 1934, as amended (the "1934 Act")) with respect to the outstanding securities of the Company; (c)\notherwise act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of the Company;\n(d) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in (a)\nthrough (d) above; or (e) enter into any agreements with any third party with respect to any of the foregoing; provided, however, that HP\nshall not be required to obtain the prior written consent of the Company to engage in any of the foregoing actions following a Significant\nEvent (as defined below); provided further, that HP shall not be prohibited from making or discussing any offers regarding a transaction\ndescribed in clause (a)(i) above directly to or with the management or the Board of Directors of the Company, or their designated\nrepresentatives.\n(b) As used herein, the following terms shall have the following meanings:\n(i) "Significant Event" shall mean any of (i) the acquisition by a person, entity or 13D Group (as defined below), other than\nHP, of beneficial ownership of voting stock of the Company (the "Voting Stock") representing fifteen percent (15%) or more of the\nthen-outstanding Voting Stock; (ii) the announcement or commencement by a person, entity or 13D Group, other than HP, of a tender\nor exchange offer to acquire Voting Stock which, if successful, would result in such person, entity or 13D Group owning, when\ncombined with any other Voting Stock owned by such person, entity or 13D Group, fifteen percent (15%) or more of the then-\noutstanding Voting Stock; or (iii) the entering into by the Company, or publicly announced determination by the Company to seek to\nenter into, any merger, sale or other business combination transaction, other than a transaction with HP, pursuant to which (A) the\noutstanding shares of common stock of the Company (the "Common Stock") would be converted into cash or securities of another\nperson, entity or 13D Group, other than HP, (B)\nfifty percent (50%) or more of the then-current issued and outstanding shares of Common Stock would be owned by a person or\nentity other than the then-current holders of shares of Common Stock or (C) would result in all or substantially all of the Company's\nassets being sold to any person, entity or 13D Group, other than HP (unless the Company's stockholders immediately prior to such\nsale of all or substantially all of the Company's assets will hold Voting Stock representing at least fifty percent (50%) of the voting\npower of the person, entity or 13D Group purchasing such assets).\n(ii) "13D Group" shall mean any group of persons or entities formed for the purpose of acquiring, holding, voting or disposing\nof Voting Stock which would be required under Section 13(d) of the 1934 Act and the rules and regulations thereunder to file a\nstatement on Schedule 13D with the Securities and Exchange Commission as a "person" within the meaning of section 13(d)(3) of\nthe Exchange Act if such group beneficially owned voting securities representing more than five percent (5%) of the Total Voting\nPower.\n(iii) "Total Voting Power" shall mean the total number of votes which may be cast in the election of directors of the Company at\nany meeting of the stockholders of the Company, if all Voting Stock was represented and voted to the fullest extent possible at such\nmeeting, other than the votes that may be cast only upon the happening of a contingency that has not occurred as of the relevant time.\n7.  Securities Law Compliance. Each party acknowledges that it is aware, and that it will advise its Associates who receive Confidential\nInformation of the other party, that the United States securities laws prohibit any person who has material, non public information concerning the\nmatters which are the subject of this Agreement from purchasing or selling securities of such other party (and options, warrants and rights relating\nthereto) or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person\nincluding, without limitation, any of such party's Associates, is likely to purchase or sell such securities; and each party agrees to fully comply with\nsuch laws.\n \n8. Definitive Agreements. Each party acknowledges and agrees that other than with respect to the matters specifically set forth herein, no\ncontract or agreement providing for any transaction of the type contemplated by this Agreement shall be deemed to exist between the parties unless\nand until a definitive agreement has been executed and delivered. The parties further agree that each party reserves the right, in its sole discretion, to\nreject any and all proposals made by the other party or any of its Associates with regard to a transaction between the parties, and to terminate\ndiscussions or negotiations at any time.\n9. Similar Products. Each disclosing party acknowledges that the receiving party or its Associates may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the disclosing party's Confidential Information.\nNothing in this Agreement will prohibit the receiving party or its Associates from developing, manufacturing, marketing, selling, servicing or\nsupporting or having developed, manufactured, marketed, sold, serviced or supported for it products, concepts, systems or techniques that are similar\nto or compete with the products, concepts, systems or techniques contemplated by or embodied in the disclosing party's Confidential Information,\nprovided that the receiving party and its Associates do not use any of the disclosing party's Confidential Information in connection with such\nactivities. Neither party nor its respective Associates shall have any obligation to limit or restrict the assignment of its respective employees or\nconsultants as a result of their having had access to Confidential Information of the other party or its Associates. The receiving party and its\nAssociates, if any, may use and disclose any Residuals for any purpose, except that no license to any patent, trademark, mask work or copyright of\nthe disclosing party is granted under this Section. Residuals means disclosed Confidential Information remembered by those individuals within the\nscope of the receiving party's obligations under this\nAgreement who no longer have access to the disclosed Confidential Information. However, Residuals does not include any detailed financial or\npersonnel data, or the identity of the disclosing party.\n10. Term. The foregoing commitments of either party in this Agreement regarding the confidentiality and non-use of Confidential\nInformation shall survive any termination of discussions between the parties, and shall continue for a period of twelve (12) months following the\ndate of this Agreement.\n11. Notice. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in writing\nand shall be deemed properly given on the day of delivery if delivered by hand or facsimile (with confirmation of delivery), or on the first business\nday after being sent by registered overnight mail, return receipt requested, by overnight courier or overnight express delivery service or facsimile (in\neach case, with confirmation of delivery) to the address or facsimile telephone number set forth beneath the name of such party below (or to such\nother address or facsimile telephone number as such party shall have specified in a written notice given to the other parties hereto):\nif to HP:\nHewlett-Packard Company\n3000 Hanover Street\nPalo Alto, CA 94304\nAttn: General Counsel\nFax number: (650) 857-2012\nif to Company:\nOpsware Inc.\n599 N. Mathilda Avenue\nSunnyvale, CA 94085\nAttn : John O'Farrell\nFax number: (408) 904-6176\n12. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the\nState of Delaware applicable to agreements made and to be performed within that state. Each of the parties hereby agree and irrevocably consent to\npersonal jurisdiction and venue in any federal or state court within Wilmington, Delaware, having subject matter jurisdiction, for the purposes of any\naction, suit or proceeding arising out of or relating to this agreement. To the fullest extent permitted by law, each of the parties hereby agree to waive\ntrial by jury in any action proceeding or counterclaim brought by or on behalf of either party with respect to any matter whatsoever relating to this\nAgreement.\n13. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto and supersedes all other prior agreements\nand understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof. All\nmodifications of, waivers of and amendments to this letter agreement must be in writing and signed by both parties hereto.\n14. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument. Any counterpart signed by an authorized representative of a party and delivered to the other party by\ntelecopier shall be deemed an original counterpart and duly delivered.\n[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]\n5\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.\nOPSWARE INC.\nBy: /s/ JOHN O'FARRELL\nName: John O'Farrell\nTitle: EVP Bus. Dev.\nHEWLETT-PACKARD COMPANY\nBy: /s/ SANDEEP JOHRI\nName: Sandeep Johri\nTitle: V.P. Strategy & Corp. Dev.	EX-99.(D)(3) 9 2179028zex-99 d3.htm EXHIBIT 99.(D)(3)\nQuickLinks Click here to rapidly navigate through this document\nExhibit (d)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this "Agreement") is made as of May 9, 2007 by and between Opsware Inc., a Delaware\ncorporation (the "Company"), and Hewlett-Packard Company, a Delaware corporation ("HP").\nThe Company and HP are evaluating entering into a potential business transaction (the "Transaction") under which each may disclose certain\ninformation, including Confidential Information (as defined below), to the other. As a condition to such information being furnished to each party, its\nsubsidiaries and other individuals and entities controlled, directly or indirectly, by such party ("Affiliates") and the respective directors, officers,\nemployees, agents, representatives, consultants, accountants, attorneys and advisors of such party and its Affiliates (collectively with such Affiliates,\n"Associates"), each party agrees to treat the other party's Confidential Information in accordance with the provisions of this Agreement, and to take\nor\nabstain from taking certain other actions, as described in this Agreement. A party disclosing Confidential Information hereunder is referred to\nherein as "the disclosing party" and a party receiving the Confidential Information of a disclosing party hereunder is referred to herein as "the\nreceiving party."\n1.\nNondisclosure of Confidential Information.\n"Confidential Information" means any information, technical data or know-how, including, but not limited to, that which relates to research,\nproduct or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other strategic\npartners, stockholders, markets, software, know-how, developments, inventions, processes, designs, drawings, engineering, hardware configuration\ninformation, marketing, finances, notes, analyses or studies and all tangible and intangible embodiments thereof of any kind whatsoever, whether\nconveyed in writing or orally by the disclosing party or its Associates to the receiving party or its Associates in connection with the evaluation of\na\nTransaction. The term "Confidential Information" shall be deemed to include those portions of any notes, analyses, compilations, studies,\ninterpretations, memoranda or other documents (regardless of the form thereof) prepared by the receiving party or its Associates which contain,\nreflect or are based upon, in whole or in part, any information furnished to the receiving party or its Associates pursuant hereto. Notwithstanding the\nforegoing, Confidential Information does not include information, technical data or know-how which: (i) is rightfully in the possession of the\nreceiving party at the time of disclosure as shown by the receiving party's files and records immediately prior to the time of disclosure; (ii) prior to\nor\nafter the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party in\nviolation of its obligations hereunder; (iii) is obtained by the receiving party from a source other than the disclosing party or any of its Associates,\nwhich source is not known by the receiving party to have any obligation of confidentiality to the disclosing party with respect to such information\n(iv) is approved, in writing, for release by the disclosing party; or (v) the receiving party can document was independently developed by the\nreceiving party without use of or reference to the disclosing party's Confidentia Information.\nEach of the parties hereto agrees not to use the Confidential Information disclosed to it by the other party or its Associates for its own use or for\nany purpose except to evaluate the contemplated Transaction. Neither party will disclose any Confidential Information of the other party to third\nparties except those Associates of such party who are required to have the information in order to carry out the evaluation and discussions\nconcerning the contemplated Transaction. The receiving party shall inform its Associates of the confidential nature of the Confidentia Information\nand shall instruct them to treat the information confidentially. The receiving party shall be responsible for any breach of this Agreement by its\nAssociates and agrees, at its sole expense, to take all reasonable measures to restrain\n1\nits Associates from prohibited or unauthorized disclosure or use of the Confidentia Information. Each party agrees that it will take all reasonable\nmeasures to protect the secrecy of and avoid disclosure or use of Confidential Information of the other party in order to prevent it from falling into\nthe public domain or the possession of persons other than those persons authorized hereunder to have any such information, which measures shall\ninclude at least the same degree of care that the receiving party utilizes to protect its own Confidential Information of a similar nature.\nEach\nparty\nagrees to notify the other party in writing of any misuse or misappropriation of such Confidential Information of the other party that may come to its\nattention.\nPromptly upon request by the disclosing party, and except as otherwise prohibited by law, the receiving party will, and will direct its Associates\nto, (i) return or, at the election of the receiving party, destroy any written Confidential Information provided by the disclosing party or its Associates\npursuant hereto and all copies or modifications thereof, and (ii) destroy those portions of any notes, analyses, compilations, studies, interpretations,\nmemoranda or other documents (regardless of the form thereof) prepared by the receiving party or its Associates which contain, reflect or are based\nupon, in whole or in part, any Confidential Information provided by the disclosing party or its Associates pursuant hereto, with any such destruction\nhereunder to be certified in writing by the receiving party. Notwithstanding the foregoing, (i) the receiving party and its Associates shall not be\nrequired to destroy any back-up computer records or other archived electronic files containing Confidential Information, (ii) the receiving party may\nretain a copy of any Confidential Information for its internal legal department files and (iii) the receiving party's Associates may retain a copy of\nany\nConfidential Information to the extent, and for only so long as, required pursuant to the regulatory compliance policies of such Associate; provided\nthat, in each such case, the party so retaining such Confidential Information shall exercise reasonable care in protecting the confidentiality of such\nConfidential Information from unauthorized use or disclosure.\n2. Nonpublicity.. The existence and the terms of this Agreement, the Transaction contemplated hereby and the existence, nature and status\nof the discussions between the parties shall be treated as Confidential Information hereunder, shall be maintained in strict confidence by the parties\nhereto and by their respective Associates and shall not be disclosed to any third party.\n3. Required Disclosure. In the event that a receiving party or its Associates become legally compelled under applicable law, regulation or\nsecurities exchange listing agreement, or by a competent governmental, administrative or regulatory authority or in a proceeding before a court,\narbitrator or administrative agency to disclose any portion of the Confidential Information of a disclosing party, that discussions or negotiations\nbetween the parties hereto are taking place, or any of the terms, conditions or other facts with respect to the Transaction, including the status thereof,\nthe receiving party will, and will direct its Associates to, provide the disclosing party with prompt written notice (unless prohibited by law) of such\nlegal compulsion, and shall delay disclosure, if and to the extent permitted or practicable, until the disclosing party has had an opportunity to seek a\nprotective\norder\nor\nother\nappropriate\nremedy\nor\nto\nwaive\ncompliance\nby\nthe\nreceiving\nparty\nand/or\nits\nAssociates\nwith\nthe\nrelevant\nprovisions\nof\nthis\nAgreement. In the event that a protective order or other remedy is not obtained in such a proceeding, or the disclosing party fails to waive\ncompliance with the relevant provisions of this Agreement, the receiving party agrees that it will, and will direct its Associates to, disclose only that\nConfidential Information of the disclosing party which its counsel advises is legally required to be disclosed and will exercise commercially\nreasonable efforts, and will direct its Associates to exercise their commercially reasonable efforts, at the request and expense of the disclosing party,\nto cooperate with the disclosing party to obtain reliable assurance that confidential treatment will be accorded the Confidential Information which\nis\nso disclosed.\n4. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret\nor\nother intellectual property right nor shall this Agreement grant either party any rights in or to the other party's Confidential Information, except the\n2\nlimited right to review such Confidential Information solely for the purposes of determining whether to enter into, and the undertaking of or the\nadvising with respect to, a possible Transaction.\n5. No Representation of Accuracy.. Each party acknowledges that neither the other party nor any of its Associates has made any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information made available by the other party\nor its Associates. Each party agrees that, except as set forth in a definitive agreement executed by the parties, neither party nor any of its Associates\nshall have any liability to the other party or to any of its Associates relating to or resulting from the use of such other party's Confidential\nInformation or any errors therein or omissions therefrom. Only those representations or warranties made in a definitive agreement, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n6. Standstill.\n(a)\nUntil twelve (12) months from the date of this Agreement, without the prior written consent of the Company, neither\nHP\nnor\nany\nof\nits Affiliates will in any manner, directly or indirectly, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause\nor participate in, (i) any acquisition of any issued and outstanding securities (or beneficial ownership thereof) of the Company or assets of the\nCompany or any of its subsidiaries (other than immaterial acquisitions of securities of the Company by individual Affiliates of HP who are\nnot controlled by HP and acquisitions of assets in the ordinary course of business); (ii) any tender or exchange offer, merger or other business\ncombination involving the Company; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with\nrespect to the Company; or (iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange\nCommission) or consents to vote any voting securities of the Company; (b) form, join or in any way participate in a "group" (as defined\nunder the Securities Exchange Act of 1934, as amended (the "1934 Act")) with respect to the outstanding securities of the Company; (c)\notherwise act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of the Company;\n(d) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in (a)\nthrough (d) above; or (e) enter into any agreements with any third party with respect to any of the foregoing; provided, however, that HP\nshall not be required to obtain the prior written consent of the Company to engage in any of the foregoing actions following a Significant\nEvent (as defined below); provided further, that HP shall not be prohibited from making or discussing any offers regarding a transaction\ndescribed in clause (a)(i) above directly to or with the management or the Board of Directors of the Company, or their designated\nrepresentatives.\n(b) As used herein, the following terms shall have the following meanings:\n(i) "Significant Event" shall mean any of (i) the acquisition by a person, entity or 13D Group (as defined below), other than\nHP,\nof beneficial ownership of voting stock of the Company (the "Voting Stock") representing fifteen percent (15%) or more of the\nthen-outstanding Voting Stock; (ii) the announcement or commencement by a person, entity or 13D Group, other than HP, of a tender\nor exchange offer to acquire Voting Stock which, if successful, would result in such person, entity or 13D Group owning, when\ncombined with any other Voting Stock owned by such person, entity or 13D Group, fifteen percent (15%) or more of the then-\noutstanding Voting Stock; or (iii) the entering into by the Company, or publicly announced determination by the Company to seek\nto\nenter into, any merger, sale or other business combination transaction, other than a transaction with HP, pursuant to which (A) the\noutstanding shares of common stock of the Company (the "Common Stock") would be converted into cash or securities of another\nperson, entity or 13D Group, other than HP, (B)\n3\nfifty percent (50%) or more of the then-current issued and outstanding shares of Common Stock would be owned by a person or\nentity other than the then-current holders of shares of Common Stock or (C) would result in all or substantially all of the Company's\nassets being sold to any person, entity or 13D Group, other than HP (unless the Company's stockholders immediately prior to such\nsale of all or substantially all of the Company's assets will hold Voting Stock representing at least fifty percent (50%) of the voting\npower of the person, entity or 13D Group purchasing such assets).\n(ii) "13D Group" shall mean any group of persons or entities formed for the purpose of acquiring, holding, voting or disposing\nof Voting Stock which would be required under Section 13(d) of the 1934 Act and the rules and regulations thereunder to file\na\nstatement on Schedule 13D with the Securities and Exchange Commission as a "person" within the meaning of section 13(d)(3)\nof\nthe Exchange Act if such group beneficially owned voting securities representing more than five percent (5%) of the Total Voting\nPower.\n(iii) "Total Voting Power" shall mean the total number of votes which may be cast in the election of directors of the Company at\nany meeting of the stockholders of the Company, if all Voting Stock was represented and voted to the fullest extent possible at such\nmeeting, other than the votes that may be cast only upon the happening of a contingency that has not occurred as of the relevant time.\n7. Securities Law Compliance. Each party acknowledges that it is aware, and that it will advise its Associates who receive Confidential\nInformation of the other party, that the United States securities laws prohibit any person who has material, non public information concerning the\nmatters which are the subject of this Agreement from purchasing or selling securities of such other party (and options, warrants and rights relating\nthereto) or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person\nincluding, without limitation, any of such party's Associates, is likely to purchase or sell such securities; and each party agrees to fully comply with\nsuch laws.\n8. Definitive Agreements. Each party acknowledges and agrees that other than with respect to the matters specifically set forth herein,\nno\ncontract or agreement providing for any transaction of the type contemplated by this Agreement shall be deemed to exist between the parties unless\nand until a definitive agreement has been executed and delivered. The parties further agree that each party reserves the right, in its sole discretion, to\nreject any and all proposals made by the other party or any of its Associates with regard to a transaction between the parties, and to terminate\ndiscussions or negotiations at any time.\n9.\nSimilar Products. Each disclosing party acknowledges that the receiving party or its Associates may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the disclosing party's Confidential Information.\nNothing in this Agreement will prohibit the receiving party or its Associates from developing, manufacturing, marketing, selling, servicing or\nsupporting or having developed, manufactured, marketed, sold, serviced or supported for it products, concepts, systems or techniques that are similar\nto or compete with the products, concepts, systems or techniques contemplated by or embodied in the disclosing party's Confidential Information,\nprovided that the receiving party and its Associates do not use any of the disclosing party's Confidential Information in connection with such\nactivities. Neither party nor its respective Associates shall have any obligation to limit or restrict the assignment of its respective employees or\nconsultants as a result of their having had access to Confidential Information of the other party or its Associates. The receiving party and its\nAssociates, if any, may use and disclose any Residuals for any purpose, except that no license to any patent, trademark, mask work or copyright of\nthe disclosing party is granted under this Section. Residuals means disclosed Confidential Information remembered by those individuals within the\nscope of the receiving party's obligations under this\n4\nAgreement who no longer have access to the disclosed Confidential Information. However, Residuals does not include any detailed financial or\npersonnel data, or the identity of the disclosing party.\n10. Term The foregoing commitments of either party in this Agreement regarding the confidentiality and non-use of Confidential\nInformation shall survive any termination of discussions between the parties, and shall continue for a period of twelve (12) months following the\ndate of this Agreement.\n11. Notice Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in writing\nand shall be deemed properly given on the day of delivery if delivered by hand or facsimile (with confirmation of delivery), or on the first business\nday after being sent by registered overnight mail, return receipt requested, by overnight courier or overnight express delivery service or facsimile (in\neach case, with confirmation of delivery) to the address or facsimile telephone number set forth beneath the name of such party below (or to such\nother address or facsimile telephone number as such party shall have specified in a written notice given to the other parties hereto):\nif to HP:\nHewlett-Packard Company\n3000 Hanover Street\nPalo Alto, CA 94304\nAttn: General Counsel\nFax number: (650) 857-2012\nif to Company:\nOpsware Inc.\n599 N. Mathilda Avenue\nSunnyvale, CA 94085\nAttn John O'Farrell\nFax number: (408) 904-6176\n12. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the\nState of Delaware applicable to agreements made and to be performed within that state. Each of the parties hereby agree and irrevocably consent to\npersonal jurisdiction and venue in any federal or state court within Wilmington, Delaware, having subject matter jurisdiction, for the purposes of any\naction,\nsuit\nor proceeding arising out of or relating to this agreement. To the fullest extent permitted by law, each of the parties hereby agree to waive\ntrial by jury in any action proceeding or counterclaim brought by or on behalf of either party with respect to any matter whatsoever relating to this\nAgreement.\n13. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto and supersedes all other prior agreements\nand\nunderstandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof. All\nmodifications of, waivers of and amendments to this letter agreement must be in writing and signed by both parties hereto.\n14. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument. Any counterpart signed by an authorized representative of a party and delivered to the other party by\ntelecopier shall be deemed an original counterpart and duly delivered.\n[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]\n5\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.\nOPSWARE INC.\nBy:\n/s/ JOHN O'FARRELL\nName:\nJohn O'Farrell\nTitle:\nEVP Bus. Dev.\nHEWLETT-PACKARD COMPANY\nBy:\n/s/ SANDEEP JOHRI\nName:\nSandeep Johri\nTitle:\nV.P. Strategy & Corp. Dev.\n6	EX-99.(D)(3) 9 a2179028zex-99 _d3.htm EXHIBIT 99.(D)(3)\nQuickLinks -- Click here to rapidly navigate through this document\nExhibit (d)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this "Agreement") is made as of May 9, 2007 by and between Opsware Inc., a Delaware\ncorporation (the "Company"), and Hewlett-Packard Company, a Delaware corporation ("HP").\nThe Company and HP are evaluating entering into a potential business transaction (the "Transaction") under which each may disclose certain\ninformation, including Confidential Information (as defined below), to the other. As a condition to such information being furnished to each party, its\nsubsidiaries and other individuals and entities controlled, directly or indirectly, by such party ("Affiliates") and the respective directors, officers,\nemployees, agents, representatives, consultants, accountants, attorneys and advisors of such party and its Affiliates (collectively with such Affiliates,\n"Associates"), each party agrees to treat the other party's Confidential Information in accordance with the provisions of this Agreement, and to take\nor abstain from taking certain other actions, as described in this Agreement. A party disclosing Confidential Information hereunder is referred to\nherein as "the disclosing party" and a party receiving the Confidential Information of a disclosing party hereunder is referred to herein as "the\nreceiving party."\n1. Nondisclosure of Confidential Information.\n"Confidential Information" means any information, technical data or know-how, including, but not limited to, that which relates to research,\nproduct or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other strategic\npartners, stockholders, markets, software, know-how, developments, inventions, processes, designs, drawings, engineering, hardware configuration\ninformation, marketing, finances, notes, analyses or studies and all tangible and intangible embodiments thereof of any kind whatsoever, whether\nconveyed in writing or orally by the disclosing party or its Associates to the receiving party or its Associates in connection with the evaluation of a\nTransaction. The term "Confidential Information" shall be deemed to include those portions of any notes, analyses, compilations, studies,\ninterpretations, memoranda or other documents (regardless of the form thereof) prepared by the receiving party or its Associates which contain,\nreflect or are based upon, in whole or in part, any information furnished to the receiving party or its Associates pursuant hereto. Notwithstanding the\nforegoing, Confidential Information does not include information, technical data or know-how which: (i) is rightfully in the possession of the\nreceiving party at the time of disclosure as shown by the receiving party's files and records immediately prior to the time of disclosure; (ii) prior to or\nafter the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party in\nviolation of its obligations hereunder; (iii) is obtained by the receiving party from a source other than the disclosing party or any of its Associates,\nwhich source is not known by the receiving party to have any obligation of confidentiality to the disclosing party with respect to such information\n(iv) is approved, in writing, for release by the disclosing party; or (v) the receiving party can document was independently developed by the\nreceiving party without use of or reference to the disclosing party's Confidential Information.\nEach of the parties hereto agrees not to use the Confidential Information disclosed to it by the other party or its Associates for its own use or for\nany purpose except to evaluate the contemplated Transaction. Neither party will disclose any Confidential Information of the other party to third\nparties except those Associates of such party who are required to have the information in order to carry out the evaluation and discussions\nconcerning the contemplated Transaction. The receiving party shall inform its Associates of the confidential nature of the Confidential Information\nand shall instruct them to treat the information confidentially. The receiving party shall be responsible for any breach of this Agreement by its\nAssociates and agrees, at its sole expense, to take all reasonable measures to restrain\n1\nits Associates from prohibited or unauthorized disclosure or use of the Confidential Information. Each party agrees that it will take all reasonable\nmeasures to protect the secrecy of and avoid disclosure or use of Confidential Information of the other party in order to prevent it from falling into\nthe public domain or the possession of persons other than those persons authorized hereunder to have any such information, which measures shall\ninclude at least the same degree of care that the receiving party utilizes to protect its own Confidential Information of a similar nature. Each party\nagrees to notify the other party in writing of any misuse or misappropriation of such Confidential Information of the other party that may come to its\nattention.\nPromptly upon request by the disclosing party, and except as otherwise prohibited by law, the receiving party will, and will direct its Associates\nto, (i) return or, at the election of the receiving party, destroy any written Confidential Information provided by the disclosing party or its Associates\npursuant hereto and all copies or modifications thereof, and (ii) destroy those portions of any notes, analyses, compilations, studies, interpretations,\nmemoranda or other documents (regardless of the form thereof) prepared by the receiving party or its Associates which contain, reflect or are based\nupon, in whole or in part, any Confidential Information provided by the disclosing party or its Associates pursuant hereto, with any such destruction\nhereunder to be certified in writing by the receiving party. Notwithstanding the foregoing, (i) the receiving party and its Associates shall not be\nrequired to destroy any back-up computer records or other archived electronic files containing Confidential Information, (ii) the receiving party may\nretain a copy of any Confidential Information for its internal legal department files and (iii) the receiving party's Associates may retain a copy of any\nConfidential Information to the extent, and for only so long as, required pursuant to the regulatory compliance policies of such Associate; provided\nthat, in each such case, the party so retaining such Confidential Information shall exercise reasonable care in protecting the confidentiality of such\nConfidential Information from unauthorized use or disclosure.\n2. Nonpublicity. The existence and the terms of this Agreement, the Transaction contemplated hereby and the existence, nature and status\nof the discussions between the parties shall be treated as Confidential Information hereunder, shall be maintained in strict confidence by the parties\nhereto and by their respective Associates and shall not be disclosed to any third party.\n3. Required Disclosure. In the event that a receiving party or its Associates become legally compelled under applicable law, regulation or\nsecurities exchange listing agreement, or by a competent governmental, administrative or regulatory authority or in a proceeding before a court,\narbitrator or administrative agency to disclose any portion of the Confidential Information of a disclosing party, that discussions or negotiations\nbetween the parties hereto are taking place, or any of the terms, conditions or other facts with respect to the Transaction, including the status thereof,\nthe receiving party will, and will direct its Associates to, provide the disclosing party with prompt written notice (unless prohibited by law) of such\nlegal compulsion, and shall delay disclosure, if and to the extent permitted or practicable, until the disclosing party has had an opportunity to seek a\nprotective order or other appropriate remedy or to waive compliance by the receiving party and/or its Associates with the relevant provisions of this\nAgreement. In the event that a protective order or other remedy is not obtained in such a proceeding, or the disclosing party fails to waive\ncompliance with the relevant provisions of this Agreement, the receiving party agrees that it will, and will direct its Associates to, disclose only that\nConfidential Information of the disclosing party which its counsel advises is legally required to be disclosed and will exercise commercially\nreasonable efforts, and will direct its Associates to exercise their commercially reasonable efforts, at the request and expense of the disclosing party,\nto cooperate with the disclosing party to obtain reliable assurance that confidential treatment will be accorded the Confidential Information which is\nso disclosed.\n4. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret or\nother intellectual property right nor shall this Agreement grant either party any rights in or to the other party's Confidential Information, except the\n2\nlimited right to review such Confidential Information solely for the purposes of determining whether to enter into, and the undertaking of or the\nadvising with respect to, a possible Transaction.\n5. No Representation of Accuracy. Each party acknowledges that neither the other party nor any of its Associates has made any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information made available by the other party\nor its Associates. Each party agrees that, except as set forth in a definitive agreement executed by the parties, neither party nor any of its Associates\nshall have any liability to the other party or to any of its Associates relating to or resulting from the use of such other party's Confidential\nInformation or any errors therein or omissions therefrom. Only those representations or warranties made in a definitive agreement, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n6. Standstill.\n(a) Until twelve (12) months from the date of this Agreement, without the prior written consent of the Company, neither HP nor any of\nits Affiliates will in any manner, directly or indirectly, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause\nor participate in, (i) any acquisition of any issued and outstanding securities (or beneficial ownership thereof) of the Company or assets of the\nCompany or any of its subsidiaries (other than immaterial acquisitions of securities of the Company by individual Affiliates of HP who are\nnot controlled by HP and acquisitions of assets in the ordinary course of business); (ii) any tender or exchange offer, merger or other business\ncombination involving the Company; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with\nrespect to the Company; or (iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange\nCommission) or consents to vote any voting securities of the Company; (b) form, join or in any way participate in a "group" (as defined\nunder the Securities Exchange Act of 1934, as amended (the "1934 Act")) with respect to the outstanding securities of the Company; (c)\notherwise act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of the Company;\n(d) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in (a)\nthrough (d) above; or (e) enter into any agreements with any third party with respect to any of the foregoing; provided, however, that HP\nshall not be required to obtain the prior written consent of the Company to engage in any of the foregoing actions following a Significant\nEvent (as defined below); provided further, that HP shall not be prohibited from making or discussing any offers regarding a transaction\ndescribed in clause (a)(i) above directly to or with the management or the Board of Directors of the Company, or their designated\nrepresentatives.\n(b) As used herein, the following terms shall have the following meanings:\n(i) "Significant Event" shall mean any of (i) the acquisition by a person, entity or 13D Group (as defined below), other than\nHP, of beneficial ownership of voting stock of the Company (the "Voting Stock") representing fifteen percent (15%) or more of the\nthen-outstanding Voting Stock; (ii) the announcement or commencement by a person, entity or 13D Group, other than HP, of a tender\nor exchange offer to acquire Voting Stock which, if successful, would result in such person, entity or 13D Group owning, when\ncombined with any other Voting Stock owned by such person, entity or 13D Group, fifteen percent (15%) or more of the then-\noutstanding Voting Stock; or (iii) the entering into by the Company, or publicly announced determination by the Company to seek to\nenter into, any merger, sale or other business combination transaction, other than a transaction with HP, pursuant to which (A) the\noutstanding shares of common stock of the Company (the "Common Stock") would be converted into cash or securities of another\nperson, entity or 13D Group, other than HP, (B)\n3\nfifty percent (50%) or more of the then-current issued and outstanding shares of Common Stock would be owned by a person or\nentity other than the then-current holders of shares of Common Stock or (C) would result in all or substantially all of the Company's\nassets being sold to any person, entity or 13D Group, other than HP (unless the Company's stockholders immediately prior to such\nsale of all or substantially all of the Company's assets will hold Voting Stock representing at least fifty percent (50%) of the voting\npower of the person, entity or 13D Group purchasing such assets).\n(ii) "13D Group" shall mean any group of persons or entities formed for the purpose of acquiring, holding, voting or disposing\nof Voting Stock which would be required under Section 13(d) of the 1934 Act and the rules and regulations thereunder to file a\nstatement on Schedule 13D with the Securities and Exchange Commission as a "person" within the meaning of section 13(d)(3) of\nthe Exchange Act if such group beneficially owned voting securities representing more than five percent (5%) of the Total Voting\nPower.\n(iii) "Total Voting Power" shall mean the total number of votes which may be cast in the election of directors of the Company at\nany meeting of the stockholders of the Company, if all Voting Stock was represented and voted to the fullest extent possible at such\nmeeting, other than the votes that may be cast only upon the happening of a contingency that has not occurred as of the relevant time.\n7. Securities Law Compliance. Each party acknowledges that it is aware, and that it will advise its Associates who receive Confidential\nInformation of the other party, that the United States securities laws prohibit any person who has material, non public information concerning the\nmatters which are the subject of this Agreement from purchasing or selling securities of such other party (and options, warrants and rights relating\nthereto) or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person\nincluding, without limitation, any of such party's Associates, is likely to purchase or sell such securities; and each party agrees to fully comply with\nsuch laws.\n8. Definitive Agreements. Each party acknowledges and agrees that other than with respect to the matters specifically set forth herein, no\ncontract or agreement providing for any transaction of the type contemplated by this Agreement shall be deemed to exist between the parties unless\nand until a definitive agreement has been executed and delivered. The parties further agree that each party reserves the right, in its sole discretion, to\nreject any and all proposals made by the other party or any of its Associates with regard to a transaction between the parties, and to terminate\ndiscussions or negotiations at any time.\n9. Similar Products. Each disclosing party acknowledges that the receiving party or its Associates may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the disclosing party's Confidential Information.\nNothing in this Agreement will prohibit the receiving party or its Associates from developing, manufacturing, marketing, selling, servicing or\nsupporting or having developed, manufactured, marketed, sold, serviced or supported for it products, concepts, systems or techniques that are similar\nto or compete with the products, concepts, systems or techniques contemplated by or embodied in the disclosing party's Confidential Information,\nprovided that the receiving party and its Associates do not use any of the disclosing party's Confidential Information in connection with such\nactivities. Neither party nor its respective Associates shall have any obligation to limit or restrict the assignment of its respective employees or\nconsultants as a result of their having had access to Confidential Information of the other party or its Associates. The receiving party and its\nAssociates, if any, may use and disclose any Residuals for any purpose, except that no license to any patent, trademark, mask work or copyright of\nthe disclosing party is granted under this Section. Residuals means disclosed Confidential Information remembered by those individuals within the\nscope of the receiving party's obligations under this\n4\nAgreement who no longer have access to the disclosed Confidential Information. However, Residuals does not include any detailed financial or\npersonnel data, or the identity of the disclosing party.\n10. Term. The foregoing commitments of either party in this Agreement regarding the confidentiality and non-use of Confidential\nInformation shall survive any termination of discussions between the parties, and shall continue for a period of twelve (12) months following the\ndate of this Agreement.\n11. Notice. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in writing\nand shall be deemed properly given on the day of delivery if delivered by hand or facsimile (with confirmation of delivery), or on the first business\nday after being sent by registered overnight mail, return receipt requested, by overnight courier or overnight express delivery service or facsimile (in\neach case, with confirmation of delivery) to the address or facsimile telephone number set forth beneath the name of such party below (or to such\nother address or facsimile telephone number as such party shall have specified in a written notice given to the other parties hereto):\nif to HP:\nHewlett-Packard Company\n3000 Hanover Street\nPalo Alto, CA 94304\nAttn: General Counsel\nFax number: (650) 857-2012\nif to Company:\nOpsware Inc.\n599 N. Mathilda Avenue\nSunnyvale, CA 94085\nAttn : John O'Farrell\nFax number: (408) 904-6176\n12. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the\nState of Delaware applicable to agreements made and to be performed within that state. Each of the parties hereby agree and irrevocably consent to\npersonal jurisdiction and venue in any federal or state court within Wilmington, Delaware, having subject matter jurisdiction, for the purposes of any\naction, suit or proceeding arising out of or relating to this agreement. To the fullest extent permitted by law, each of the parties hereby agree to waive\ntrial by jury in any action proceeding or counterclaim brought by or on behalf of either party with respect to any matter whatsoever relating to this\nAgreement.\n13. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto and supersedes all other prior agreements\nand understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof. All\nmodifications of, waivers of and amendments to this letter agreement must be in writing and signed by both parties hereto.\n14. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument. Any counterpart signed by an authorized representative of a party and delivered to the other party by\ntelecopier shall be deemed an original counterpart and duly delivered.\n[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]\n5\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.\nOPSWARE INC.\nBy:\n/s/ JOHN O'FARRELL\nName:\nJohn O'Farrell\nTitle:\nEVP Bus. Dev.\nHEWLETT-PACKARD COMPANY\nBy:\n/s/ SANDEEP JOHRI\nName:\nSandeep Johri\nTitle:\nV.P. Strategy & Corp. Dev.\n6
+7c6dc43af8d2b97e3918cd1ebf62f17e.pdf	effective_date jurisdiction party term	EX1A-6 MAT CTRCT 12 filename12.htm\nExhibit 1A-6F\nAMERICAN HOMEOWNER PRESERVATION\nINVENTION, NON-DISCLOSURE, AND NON-COMPETITION AGREEMENT\nThis is an Agreement, entered into on\n, 2018, by and among Jeremiah Kaye ("Executive") and , AHP Servicing, LLC (the\n"Company").\nBackground\nExecutive is employed by the Company, and the parties wish to set forth certain restrictions concerning confidential information,\ninventions, and competition.\nNOW, THEREFORE, intending to be legally bound and acknowledging the receipt of adequate consideration, the parties hereby agree as\nfollows:\n1. Confidential Information.\n1.1 Defined. For purposes of this Agreement, "Confidential Information" means all information not generally known to the public\nor in the mortgage industry, in spoken, printed, electronic or any other form or medium, relating to the Company or its business. Confidential\nInformation includes, but is not limited to, processes, methods, policies, plans, documents, strategies, agreements, transactions, negotiations,\nknow-how, trade secrets, computer software, applications, databases, manuals, records, supplier information, vendor information, financial\ninformation, accounting records, legal information, pricing information, credit information, personnel information, security procedures, market\nstudies, sales information, inventions, and customer information. Executive understands that the above list is not exhaustive, and that\nConfidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would\notherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or\nused. Executive further understands that Confidential Information includes information developed by him in the course of his employment that\nmeets the definition of Confidential Information set forth above. Notwithstanding the foregoing, Confidential Information shall not include\ninformation that is generally available to and known by the public or in the mortgage industry, provided that the disclosure of such information to\nthe public or the mortgage industry was not the result of direct or indirect action of Executive (or one or more person(s) acting on Executive's\nbehalf) in violation of Executive's obligations pursuant to this Agreement.\n1.2 Disclosure and Use Restrictions. Executive shall (i) treat all Confidential Information as strictly confidential; (ii) not directly\nor indirectly disclose Confidential Information, or allow it to be disclosed, except as required in the performance of Executive's duties for the\nCompany; and (iii) not access or use any Confidential Information, and not copy any documents, records, files, media, or other resources\ncontaining any Confidential Information, or remove any such documents, records, files, media, or other resources from the premises or control of\nthe Company, except as required in the performance of Executive's duties for the Company. The preceding sentence shall not prohibit Executive\nfrom disclosing Confidential Information as required by applicable law or regulation, or pursuant to the valid order of a court of competent\njurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law,\nregulation, or order and, to the extent permitted by applicable law, Executive gives the Company prompt notice of such requirement.\n1.3\nOwnership of Property. All files, letters, memoranda, reports, records, data, sketches, drawings, and all other written,\nphotographic, or other tangible material containing Confidential Information, whether created by Executive or others, which shall come into his\ncustody or possession, shall be and are the exclusive property of the Company to be used by Executive only in the performance of his duties for\nthe Company. All such materials or copies thereof and all tangible property of the Company in the custody or possession of Executive shall be\ndelivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of Executive's employment by the Company. After\nsuch delivery, Executive shall not retain any such materials or copies thereof or any such tangible property; provided, that notwithstanding the\nforegoing Executive may retain records related to the terms and conditions of his employment and his ownership of equity interests in the\nCompany.\n1\n1.4\nInformation and Property of Others. The obligations of Executive under this section 1 shall apply to information and\nmaterials of customers and suppliers of the Company and other third parties who may have disclosed or entrusted the same to the Company or to\nExecutive.\n2. Inventions.\n2.1\nDisclosure. Executive will make full and prompt disclosure to the Company of all inventions, improvements, software, and\nother intellectual property, whether patentable or not, which are created, made, conceived or reduced to practice by Executive or under\nExecutive's direction or jointly with others during the period of his employment which relate to the then current or planned businesses of the\nCompany, whether or not during normal working hours or on the premises of the Company, or which are otherwise created, made, conceived or\nreduced to practice by Executive or under Executive's direction or jointly with others during the term of his employment using tools, equipment\nor other assets of the Company ("Developments").\n2.2\nAssignment. Executive agrees to assign, and upon development by Executive of any element of intellectual property does\nautomatically assign, to the Company, ownership of all United States and international copyrights, patents, and other intellectual property rights\nin each Development. Executive shall cooperate with the Company in obtaining, maintaining, and enforcing all intellectual property rights\nrelating to Developments, as the Company deems necessary or appropriate. This assignment is undertaken in part as a contingency against the\npossibility that any such Development, by operation of law, may not be considered a work made for hire by Executive for the Company.\nExecutive also hereby waives all claims to moral rights in any Developments.\n3.\nNon-Solicitation.\n3.1\nCustomers. For as long as he is performing services on behalf of the Company and for a period of twelve (12) months\nthereafter, Executive shall not initiate contact or communicate, directly or indirectly, with any entity for which the Company has provided\nmortgage servicing within the previous twelve (12) months in an effort to induce such person to use a different provider.\n3.2 Employees and Independent Contractors. For as long as he is performing services on behalf of the Company and for a period\nof twelve (12) months thereafter, Executive shall not hire any employees or individual independent contractors of the Company or its affiliates,\nor initiate contact or communicate, directly or indirectly, with any such persons in an effort to induce such persons to terminate their relationship\nwith the Company or its affiliates; provided, that the foregoing shall not apply with respect to employees and independent contractors who\nrespond to general advertisements regarding hiring of employees or engagement of independent contractors or respond to inquiries by\nindependent recruiting firms not resulting from direction to such firms to include employees or independent contractors of the Company in such\nsolicitation activities.\n4.\nNon-Competition. For as long as he is performing services on behalf of the Company and for a period of twelve (12) months thereafter,\nExecutive shall not participate, directly or indirectly, as an owner, employee, consultant, or otherwise, in any proprietorship, corporation,\npartnership, or other entity, engaged in purchasing or investing in "non-performing" distressed residential mortgage loans, provided that the\nforegoing shall not prohibit or restrict Executive from being an owner, employee, consultant, or otherwise, in any proprietorship, corporation,\npartnership, or other entity, which is engaged in the business of purchasing or investing in "nonperforming" distressed residential mortgage loans\namong multiple businesses so long as Executive is not personally involved in the operations of the business with respect to purchasing or\ninvesting in "non-performing" distressed residential mortgage loans. Due to the nature of the businesses conducted by the Company, Executive\nacknowledges that the foregoing restrictions shall have no geographic limitation.\n5.\nAcknowledgment. Executive represents and warrants that (i) his knowledge, skills and abilities are sufficient to permit his to earn a\nsatisfactory livelihood without violating any provision of this Agreement; (ii) the restrictions set forth in this Agreement are necessary to protect\nthe legitimate proprietary interests of the Company, and (iii) he has received adequate consideration for his agreement to the restrictions set forth\nherein, including but not limited to an equity interest in the Company.\n2\n6.\nRemedies. Executive acknowledges that a breach of this Agreement will cause great and irreparable injury and damage, which cannot\nbe reasonably or adequately compensated by money damages. Accordingly, Executive acknowledges that the remedies of injunction and specific\nperformance shall be available in the event of such a breach, in addition to money damages or other legal or equitable remedies. Any period of\nrestriction set forth in this Agreement shall be extended for a period of time equal to the duration of any breach or violation hereof.\n7.\nNotification. Any person employing Executive or evidencing any intention to employ Executive may be notified as to the existence and\nprovisions of this Agreement.\n8.\nSurvival. The provisions of this Agreement shall survive the expiration or termination of the relationship whereby Executive renders\nservices to the Company.\n9.\nModification of Covenants; Enforceability. In the event that any provision of this Agreement is held to be in any respect an\nunreasonable restriction, then the court so holding may modify the terms thereof, including the period of time during which it operates or the\ngeographic area to which it applies, or effect any other change to the extent necessary to render this Agreement enforceable, it being\nacknowledged by the parties that the representations and covenants set forth herein are of the essence to the relationship between the Company\nand Executive.\n10.\nNo Employment Contract. Nothing in this Agreement shall be construed as giving Executive the right to render services on behalf of\nthe Company or its affiliates for compensation. Except as otherwise provided in other written agreements, the Company may terminate their\nrelationship with Executive at will.\n11.\nMiscellaneous.\n11.1 Amendments; Waivers. No amendment, modification, or waiver of any provision of this Agreement shall be binding unless in\nwriting and signed by the party against whom the operation of such amendment, modification, or waiver is sought to be enforced. No delay in the\nexercise of any right shall be deemed a waiver thereof, nor shall the waiver of a right or remedy in a particular instance constitute a waiver of\nsuch right or remedy generally.\n11.2 Notices. Any notice or document required or permitted to be given under this Agreement may be given by a party or by its legal\ncounsel and shall be deemed to be given (i) one day after the date such notice is deposited with a commercial overnight delivery service with\ndelivery fees paid, to the principal business address of the Company or the address of Executive on file with the Company, as applicable; or (ii)\non the date transmitted by electronic mail to _______________ @ahpfund.com in the case of the Company and to __________________ in the\ncase of Executive, in each case with transmission receipt acknowledgment from the recipient by non-automated email response or other written\nconfirmation of receipt. A party may change its own notice address by giving notice satisfactory under this section.\n11.3 Governing Law. This Agreement shall be governed by the internal laws of Illinois without giving effect to the principles of\nconflicts of laws. Each party hereby consents to the personal jurisdiction of the Federal or Illinois courts located in or most geographically\nconvenient to Cook County, Illinois, and agrees that all disputes arising from this Agreement shall be prosecuted in such courts. Each party\nhereby agrees that any such court shall have in person jurisdiction over such party and consents to service of process by notice sent by regular\nmail to the address set forth above and/or by any means authorized by Illinois law.\n11.4 Language Construction. The language of this Agreement shall be construed in accordance with its fair meaning and not for or\nagainst any party. The parties acknowledge that each party and its counsel have reviewed and had the opportunity to participate in the drafting of\nthis Agreement and, accordingly, that the rule of construction that would resolve ambiguities in favor of non-drafting parties shall not apply to\nthe interpretation of this Agreement.\n3\n11.5 No Offer. The submission of this Agreement by any party for the review and/or execution by another party does not constitute\nan offer or reservation of rights for the benefit of any party. This Agreement shall become effective, and the parties shall become legally bound,\nonly if and when all parties have executed this Agreement.\n11.6 Signatures. This Agreement may be signed in counterparts, each of which shall be deemed to be a fully-executed original. An\noriginal signature transmitted by email shall be deemed to be original for purposes of this Agreement. This Agreement may be signed\nelectronically, e.g ., via DocuSign.\n11.7 Binding Effect. This Agreement shall inure to the benefit of the respective heirs, legal representatives and permitted assigns of\neach party, and shall be binding upon the heirs, legal representatives, successors and assigns of each party.\n11.8 Titles and Captions. All article, section and paragraph titles and captions contained in this Agreement are for convenience only\nand are not deemed a part of the context hereof.\n11.9 Pronouns and Plurals. All pronouns and any variations thereof are deemed to refer to the masculine, feminine, neuter, singular\nor plural as the identity of the person or persons may require.\n11.10 Days. Any period of days mandated under this Agreement shall be determined by reference to calendar days, not business days,\nexcept that any payments, notices, or other performance falling due on a Saturday, Sunday, or federal government holiday shall be considered\ntimely if paid, given, or performed on the next succeeding business day.\n11.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and\nsupersedes all prior agreements and understandings.\nIN WITNESS WHEREOF, the parties have signed this Agreement effective on the date first written above.\nAHP SERVICING LLC\nBy: __________________________\nName:\nTitle:\n/s/ Jeremiah Kaye\nJeremiah Kaye\n4	EX1A-6 MAT CTRCT 12 filename12.htm\nExhibit 1A-6F\nAMERICAN HOMEOWNER PRESERVATION\nINVENTION, NON-DISCLOSURE, AND NON-COMPETITION AGREEMENT\nThis is an Agreement, entered into on , 2018, by and among Jeremiah Kaye ("Executive") and , AHP Servicing, LLC (the\n"COmpflly_").\nBackground\nExecutive is employed by the Company, and the parties wish to set forth certain restrictions concerning confidential information,\ninventions, and competition.\nNOW, THEREFORE, intending to be legally bound and acknowledging the receipt of adequate consideration, the parties hereby agree as\nfollows:\n1. Confidential Information.\n1.1 Defined. For purposes of this Agreement, "Confidential Information" means all information not generally known to the public\nor in the mortgage industry, in spoken, printed, electronic or any other form or medium, relating to the Company or its business. Confidential\nInformation includes, but is not limited to, processes, methods, policies, plans, documents, strategies, agreements, transactions, negotiations,\nknow-how, trade secrets, computer software, applications, databases, manuals, records, supplier information, vendor information, financial\ninformation, accounting records, legal information, pricing information, credit information, personnel information, security procedures, market\nstudies, sales information, inventions, and customer information. Executive understands that the above list is not exhaustive, and that\nConfidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would\notherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or\nused. Executive further understands that Confidential Information includes information developed by him in the course of his employment that\nmeets the definition of Confidential Information set forth above. Notwithstanding the foregoing, Confidential Information shall not include\ninformation that is generally available to and known by the public or in the mortgage industry, provided that the disclosure of such information to\nthe public or the mortgage industry was not the result of direct or indirect action of Executive (or one or more person(s) acting on Executive's\nbehalf) in violation of Executive's obligations pursuant to this Agreement.\n1.2 Disclosure and Use Restrictions. Executive shall (i) treat all Confidential Information as strictly confidential; (ii) not directly\nor indirectly disclose Confidential Information, or allow it to be disclosed, except as required in the performance of Executive's duties for the\nCompany; and (iii) not access or use any Confidential Information, and not copy any documents, records, files, media, or other resources\ncontaining any Confidential Information, or remove any such documents, records, files, media, or other resources from the premises or control of\nthe Company, except as required in the performance of Executive's duties for the Company. The preceding sentence shall not prohibit Executive\nfrom disclosing Confidential Information as required by applicable law or regulation, or pursuant to the valid order of a court of competent\njurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law,\nregulation, or order and, to the extent permitted by applicable law, Executive gives the Company prompt notice of such requirement.\n1.3 Ownership of Property. All files, letters, memoranda, reports, records, data, sketches, drawings, and all other written,\nphotographic, or other tangible material containing Confidential Information, whether created by Executive or others, which shall come into his\ncustody or possession, shall be and are the exclusive property of the Company to be used by Executive only in the performance of his duties for\nthe Company. All such materials or copies thereof and all tangible property of the Company in the custody or possession of Executive shall be\ndelivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of Executive's employment by the Company. After\nsuch delivery, Executive shall not retain any such materials or copies thereof or any such tangible property; provided, that notwithstanding the\nforegoing Executive may retain records related to the terms and conditions of his employment and his ownership of equity interests in the\nCompany.\n14 Information and Property of Others. The obligations of Executive under this section 1 shall apply to information and\nmaterials of customers and suppliers of the Company and other third parties who may have disclosed or entrusted the same to the Company or to\nExecutive.\n2. Inventions.\n2.1 Disclosure. Executive will make full and prompt disclosure to the Company of all inventions, improvements, software, and\nother intellectual property, whether patentable or not, which are created, made, conceived or reduced to practice by Executive or under\nExecutive's direction or jointly with others during the period of his employment which relate to the then current or planned businesses of the\nCompany, whether or not during normal working hours or on the premises of the Company, or which are otherwise created, made, conceived or\nreduced to practice by Executive or under Executive's direction or jointly with others during the term of his employment using tools, equipment\nor other assets of the Company ("Developments").\n2.2 Assignment. Executive agrees to assign, and upon development by Executive of any element of intellectual property does\nautomatically assign, to the Company, ownership of all United States and international copyrights, patents, and other intellectual property rights\nin each Development. Executive shall cooperate with the Company in obtaining, maintaining, and enforcing all intellectual property rights\nrelating to Developments, as the Company deems necessary or appropriate. This assignment is undertaken in part as a contingency against the\npossibility that any such Development, by operation of law, may not be considered a work made for hire by Executive for the Company.\nExecutive also hereby waives all claims to moral rights in any Developments.\n3. Non-Solicitation.\n3.1 Customers. For as long as he is performing services on behalf of the Company and for a period of twelve (12) months\nthereafter, Executive shall not initiate contact or communicate, directly or indirectly, with any entity for which the Company has provided\nmortgage servicing within the previous twelve (12) months in an effort to induce such person to use a different provider.\n3.2  Employees and Independent Contractors. For as long as he is performing services on behalf of the Company and for a period\nof twelve (12) months thereafter, Executive shall not hire any employees or individual independent contractors of the Company or its affiliates,\nor initiate contact or communicate, directly or indirectly, with any such persons in an effort to induce such persons to terminate their relationship\nwith the Company or its affiliates; provided, that the foregoing shall not apply with respect to employees and independent contractors who\nrespond to general advertisements regarding hiring of employees or engagement of independent contractors or respond to inquiries by\nindependent recruiting firms not resulting from direction to such firms to include employees or independent contractors of the Company in such\nsolicitation activities.\n4. Non-Competition. For as long as he is performing services on behalf of the Company and for a period of twelve (12) months thereafter,\nExecutive shall not participate, directly or indirectly, as an owner, employee, consultant, or otherwise, in any proprietorship, corporation,\npartnership, or other entity, engaged in purchasing or investing in "non-performing" distressed residential mortgage loans, provided that the\nforegoing shall not prohibit or restrict Executive from being an owner, employee, consultant, or otherwise, in any proprietorship, corporation,\npartnership, or other entity, which is engaged in the business of purchasing or investing in "nonperforming" distressed residential mortgage loans\namong multiple businesses so long as Executive is not personally involved in the operations of the business with respect to purchasing or\ninvesting in "non-performing" distressed residential mortgage loans. Due to the nature of the businesses conducted by the Company, Executive\nacknowledges that the foregoing restrictions shall have no geographic limitation.\n5. Acknowledgment. Executive represents and warrants that (i) his knowledge, skills and abilities are sufficient to permit his to earn a\nsatisfactory livelihood without violating any provision of this Agreement; (ii) the restrictions set forth in this Agreement are necessary to protect\nthe legitimate proprietary interests of the Company, and (iii) he has received adequate consideration for his agreement to the restrictions set forth\nherein, including but not limited to an equity interest in the Company.\n6. Remedies. Executive acknowledges that a breach of this Agreement will cause great and irreparable injury and damage, which cannot\nbe reasonably or adequately compensated by money damages. Accordingly, Executive acknowledges that the remedies of injunction and specific\nperformance shall be available in the event of such a breach, in addition to money damages or other legal or equitable remedies. Any period of\nrestriction set forth in this Agreement shall be extended for a period of time equal to the duration of any breach or violation hereof.\n7. Notification. Any person employing Executive or evidencing any intention to employ Executive may be notified as to the existence and\nprovisions of this Agreement.\n8. Survival. The provisions of this Agreement shall survive the expiration or termination of the relationship whereby Executive renders\nservices to the Company.\n9. Modification of Covenants; Enforceability. In the event that any provision of this Agreement is held to be in any respect an\nunreasonable restriction, then the court so holding may modify the terms thereof, including the period of time during which it operates or the\ngeographic area to which it applies, or effect any other change to the extent necessary to render this Agreement enforceable, it being\nacknowledged by the parties that the representations and covenants set forth herein are of the essence to the relationship between the Company\nand Executive.\n10. No Employment Contract. Nothing in this Agreement shall be construed as giving Executive the right to render services on behalf of\nthe Company or its affiliates for compensation. Except as otherwise provided in other written agreements, the Company may terminate their\nrelationship with Executive at will.\n11. Miscellaneous.\n11.1 Amendments; Waivers. No amendment, modification, or waiver of any provision of this Agreement shall be binding unless in\nwriting and signed by the party against whom the operation of such amendment, modification, or waiver is sought to be enforced. No delay in the\nexercise of any right shall be deemed a waiver thereof, nor shall the waiver of a right or remedy in a particular instance constitute a waiver of\nsuch right or remedy generally.\n11.2 Notices. Any notice or document required or permitted to be given under this Agreement may be given by a party or by its legal\ncounsel and shall be deemed to be given (i) one day after the date such notice is deposited with a commercial overnight delivery service with\ndelivery fees paid, to the principal business address of the Company or the address of Executive on file with the Company, as applicable; or (ii)\non the date transmitted by electronic mail to @ahpfund.com in the case of the Company and to in the\ncase of Executive, in each case with transmission receipt acknowledgment from the recipient by non-automated email response or other written\nconfirmation of receipt. A party may change its own notice address by giving notice satisfactory under this section.\n11.3 Governing Law. This Agreement shall be governed by the internal laws of Illinois without giving effect to the principles of\nconflicts of laws. Each party hereby consents to the personal jurisdiction of the Federal or Illinois courts located in or most geographically\nconvenient to Cook County, Illinois, and agrees that all disputes arising from this Agreement shall be prosecuted in such courts. Each party\nhereby agrees that any such court shall have in person jurisdiction over such party and consents to service of process by notice sent by regular\nmail to the address set forth above and/or by any means authorized by Illinois law.\n11.4 Language Construction. The language of this Agreement shall be construed in accordance with its fair meaning and not for or\nagainst any party. The parties acknowledge that each party and its counsel have reviewed and had the opportunity to participate in the drafting of\nthis Agreement and, accordingly, that the rule of construction that would resolve ambiguities in favor of non-drafting parties shall not apply to\nthe interpretation of this Agreement.\n11.5 No Offer. The submission of this Agreement by any party for the review and/or execution by another party does not constitute\nan offer or reservation of rights for the benefit of any party. This Agreement shall become effective, and the parties shall become legally bound,\nonly if and when all parties have executed this Agreement.\n11.6  Signatures. This Agreement may be signed in counterparts, each of which shall be deemed to be a fully-executed original. An\noriginal signature transmitted by email shall be deemed to be original for purposes of this Agreement. This Agreement may be signed\nelectronically, e.g., via DocuSign.\n11.7 Binding Effect. This Agreement shall inure to the benefit of the respective heirs, legal representatives and permitted assigns of\neach party, and shall be binding upon the heirs, legal representatives, successors and assigns of each party.\n11.8 Titles and Captions. All article, section and paragraph titles and captions contained in this Agreement are for convenience only\nand are not deemed a part of the context hereof.\n11.9 Pronouns and Plurals. All pronouns and any variations thereof are deemed to refer to the masculine, feminine, neuter, singular\nor plural as the identity of the person or persons may require.\n11.10 Days. Any period of days mandated under this Agreement shall be determined by reference to calendar days, not business days,\nexcept that any payments, notices, or other performance falling due on a Saturday, Sunday, or federal government holiday shall be considered\ntimely if paid, given, or performed on the next succeeding business day.\n11.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and\nsupersedes all prior agreements and understandings.\nIN WITNESS WHEREOF, the parties have signed this Agreement effective on the date first written above.\nAHP SERVICING LLC\n \nBy:\nName:\nTitle:\n[s/ Jeremiah Kaye\nJeremiah Kaye	EX1A-6 MAT CTRCT 12 filenamel\nExhibit 1A-6F\nAMERICAN HOMEOWNER PRESERVATION\nINVENTION, NON-DISCLOSURE, AND NON-COMPETITION AGREEMENT\nThis is an Agreement entered into on\n2018, by and among Jeremiah Kaye ("Executive") and AHP Servicing, LLC (the\n"Company.").\nBackground\nExecutive is employed by the Company, and the parties wish to set forth certain restrictions concerning confidential information,\ninventions, and competition.\nNOW, THEREFORE, intending to be legally bound and acknowledging the receipt of adequate consideration, the parties hereby agree as\nfollows:\n1.\nConfidential Information.\n1.1\nDefined. For purposes of this Agreement, "Confidential Information" means all information not generally known to the public\nor in the mortgage industry, in spoken, printed, electronic or any other form or medium, relating to the Company or its business. Confidential\nInformation includes, but is not limited to, processes, methods, policies, plans, documents, strategies, agreements, transactions, negotiations,\nknow-how, trade secrets, computer software, applications, databases, manuals, records, supplier information, vendor information, financial\ninformation, accounting records, legal information, pricing information, credit information, personnel information, security procedures, market\nstudies, sales information, inventions, and customer information. Executive understands that the above list is not exhaustive, and that\nConfidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would\notherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or\nused. Executive further understands that Confidential Information includes information developed by him in the course of his employment that\nmeets the definition of Confidential Information set forth above. Notwithstanding the foregoing, Confidential Information shall not include\ninformation\nthat is generally available to and known by the public or in the mortgage industry, provided that the disclosure of such information\nto\nthe public or the mortgage industry was not the result of direct or indirect action of Executive (or one or more person(s) acting on Executive's\nbehalf) in violation of Executive's obligations pursuant to this Agreement.\n1.2 Disclosure and Use Restrictions. Executive shall (i) treat all Confidential Information as strictly confidential; (ii) not directly\nor indirectly disclose Confidential Information, or allow it to be disclosed, except as required in the performance of Executive's duties for the\nCompany; and (iii) not access or use any Confidential Information, and not copy any documents, records, files, media, or other\nresources\ncontaining any Confidential Information, or remove any such documents, records, files, media, or other resources from the premises or control of\nthe Company, except as required in the performance of Executive's duties for the Company. The preceding sentence shall not prohibit Executive\nfrom\ndisclosing\nConfidential\nInformation\nas\nrequired\nby\napplicable\nlaw\nor\nregulation,\nor\npursuant\nto\nthe\nvalid\norder\nof\na\ncourt\nof\ncompetent\njurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law,\nregulation, or order and, to the extent permitted by applicable law, Executive gives the Company prompt notice of such requirement.\n1.3\nOwnership of Property. All files, letters, memoranda, reports, records, data, sketches, drawings, and all other written,\nphotographic, or other tangible material containing Confidential Information, whether created by Executive or others, which shall come into his\ncustody or possession, shall be and are the exclusive property of the Company to be used by Executive only in the performance of his duties for\nthe Company. All such materials or copies thereof and all tangible property of the Company in the custody or possession of Executive shall be\ndelivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of Executive's employment by the Company. After\nsuch delivery, Executive shall not retain any such materials or copies thereof or any such tangible property; provided, that notwithstanding the\nforegoing Executive may retain records related to the terms and conditions of his employment and his ownership of equity interests in the\nCompany.\n1\n1.4\nInformation and Property of Others. The obligations of Executive under this section 1 shall apply to information and\nmaterials of customers and suppliers of the Company and other third parties who may have disclosed or entrusted the same to the Company or to\nExecutive.\n2. Inventions.\n2.1\nDisclosure. Executive will make full and prompt disclosure to the Company of all inventions, improvements, software, and\nother intellectual property, whether patentable or not, which are created, made, conceived or reduced to practice by Executive or under\nExecutive's direction or jointly with others during the period of his employment which relate to the then current or planned businesses of the\nCompany, whether or not during normal working hours or on the premises of the Company, or which are otherwise created, made, conceived\nor\nreduced to practice by Executive or under Executive's direction or jointly with others during the term of his employment using tools, equipment\nor other assets of the Company ("Developments").\n2.2\nAssignment. Executive agrees to assign, and upon development by Executive of any element of intellectual property does\nautomatically assign, to the Company, ownership of all United States and international copyrights, patents, and other intellectual property rights\nin each Development. Executive shall cooperate with the Company in obtaining, maintaining, and enforcing all intellectual property rights\nrelating to Developments, as the Company deems necessary or appropriate. This assignment is undertaken in part as a contingency against the\npossibility that any such Development, by operation of law, may not be considered a work made for hire by Executive for the Company.\nExecutive also hereby waives all claims to moral rights in any Developments.\n3.\nNon-Solicitation.\n3.1\nCustomers. For as long as he is performing services on behalf of the Company and for a period of twelve (12) months\nthereafter, Executive shall not initiate contact or communicate, directly or indirectly, with any entity for which the Company has provided\nmortgage servicing within the previous twelve (12) months in an effort to induce such person to use a different provider.\n3.2 Employees and Independent Contractors. For as long as he is performing services on behalf of the Company and for a period\nof\ntwelve (12) months thereafter, Executive shall not hire any employees or individual independent contractors of the Company or its affiliates,\nor initiate contact or communicate, directly or indirectly, with any such persons in an effort to induce such persons to terminate their relationship\nwith\nthe\nCompany\nor\nits\naffiliates;\nprovided,\nthat\nthe\nforegoing\nshall\nnot\napply\nwith\nrespect\nto\nemployees\nand\nindependent\ncontractors\nwho\nrespond to general advertisements regarding hiring of employees or engagement of independent contractors or respond to inquiries by\nindependent recruiting firms not resulting from direction to such firms to include employees or independent contractors of the Company in such\nsolicitation activities.\n4.\nNon-Competition. For as long as he is performing services on behalf of the Company and for a period of twelve (12) months thereafter,\nExecutive shall not participate, directly or indirectly, as an owner, employee, consultant, or otherwise, in any proprietorship, corporation,\npartnership, or other entity, engaged in purchasing or investing in "non-performing" distressed residential mortgage loans, provided that the\nforegoing shall not prohibit or restrict Executive from being an owner, employee, consultant, or otherwise, in any proprietorship, corporation\npartnership, or other entity, which is engaged in the business of purchasing or investing in "nonperforming" distressed residential mortgage loans\namong multiple businesses so long as Executive is not personally involved in the operations of the business with respect to purchasing or\ninvesting in "non-performing" distressed residential mortgage loans. Due to the nature of the businesses conducted by the Company, Executive\nacknowledges that the foregoing restrictions shall have no geographic limitation.\n5.\nAcknowledgment. Executive represents and warrants that (i) his knowledge, skills and abilities are sufficient to permit his to earn a\nsatisfactory livelihood without violating any provision of this Agreement; (ii) the restrictions set forth in this Agreement are necessary to protect\nthe legitimate proprietary interests of the Company, and (iii) he has received adequate consideration for his agreement to the restrictions set forth\nherein, including but not limited to an equity interest in the Company.\n2\n6.\nRemedies. Executive acknowledges that a breach of this Agreement will cause great and irreparable injury and damage, which cannot\nbe reasonably or adequately compensated by money damages. Accordingly, Executive acknowledges that the remedies of injunction and specific\nperformance shall be available in the event of such a breach, in addition to money damages or other legal or equitable remedies. Any period\nof\nrestriction set forth in this Agreement shall be extended for a period of time equal to the duration of any breach or violation hereof.\n7.\nNotification. Any person employing Executive or evidencing any intention to employ Executive may be notified as to the existence and\nprovisions of this Agreement.\n8.\nSurvival. The provisions of this Agreement shall survive the expiration or termination of the relationship whereby Executive renders\nservices to the Company.\n9.\nModification of Covenants; Enforceability. In the event that any provision of this Agreement is held to be in any respect an\nunreasonable restriction, then the court so holding may modify the terms thereof, including the period of time during which it operates or the\ngeographic area to which it applies, or effect any other change to the extent necessary to render this Agreement enforceable, it being\nacknowledged by the parties that the representations and covenants set forth herein are of the essence to the relationship between the Company\nand Executive.\n10.\nNo Employment Contract. Nothing in this Agreement shall be construed as giving Executive the right to render services on behalf of\nthe Company or its affiliates for compensation. Except as otherwise provided in other written agreements, the Company may terminate their\nrelationship with Executive at will.\n11.\nMiscellaneous.\n11.1 Amendments; Waivers. No amendment, modification, or waiver of any provision of this Agreement shall be binding unless in\nwriting and signed by the party against whom the operation of such amendment, modification, or waiver is sought to be enforced. No delay in the\nexercise of any right shall be deemed a waiver thereof, nor shall the waiver of a right or remedy in a particular instance constitute a waiver\nof\nsuch right or remedy generally.\n11.2\nNotices. Any notice or document required or permitted to be given under this Agreement may be given by a party or by its legal\ncounsel\nand\nshall\nbe\ndeemed\nto\nbe\ngiven\n(i)\none\nday\nafter\nthe\ndate\nsuch\nnotice\nis\ndeposited\nwith\na\ncommercial\novernight\ndelivery\nservice\nwith\ndelivery fees paid, to the principal business address of the Company or the address of Executive on file with the Company, as applicable; or (ii)\non the date transmitted by electronic mail to @ahpfund.com in the case of the Company and to in the\ncase of Executive, in each case with transmission receipt acknowledgment from the recipient by non-automated email response or other written\nconfirmation of receipt. A party may change its own notice address by giving notice satisfactory under this section.\n11.3 Governing Law. This Agreement shall be governed by the internal laws of Illinois without giving effect to the principles of\nconflicts of laws. Each party hereby consents to the personal jurisdiction of the Federal or Illinois courts located in or most geographically\nconvenient to Cook County, Illinois, and agrees that all disputes arising from this Agreement shall be prosecuted in such courts. Each party\nhereby agrees that any such court shall have in person jurisdiction over such party and consents to service of process by notice sent by regular\nmail to the address set forth above and/or by any means authorized by Illinois law.\n11.4 Language Construction. The language of this Agreement shall be construed in accordance with its fair meaning and not for\nor\nagainst any party. The parties acknowledge that each party and its counsel have reviewed and had the opportunity to participate in the drafting of\nthis Agreement and, accordingly, that the rule of construction that would resolve ambiguities in favor of non-drafting parties shall not apply to\nthe interpretation of this Agreement.\n3\n11.5 No Offer. The submission of this Agreement by any party for the review and/or execution by another party does not constitute\nan offer or reservation of rights for the benefit of any party. This Agreement shall become effective, and the parties shall become legally bound,\nonly if and when all parties have executed this Agreement.\n11.6 Signatures. This Agreement may be signed in counterparts, each of which shall be deemed to be a fully-executed original. An\noriginal signature transmitted by email shall be deemed to be original for purposes of this Agreement. This Agreement may be signed\nelectronically, e.g., via DocuSign.\n11.7 Binding Effect. This Agreement shall inure to the benefit of the respective heirs, legal representatives and permitted assigns of\neach party, and shall be binding upon the heirs, legal representatives, successors and assigns of each party.\n11.8 Titles and Captions. All article, section and paragraph titles and captions contained in this Agreement are for convenience only\nand are not deemed a part of the context hereof.\n11.9 Pronouns and Plurals. All pronouns and any variations thereof are deemed to refer to the masculine, feminine, neuter, singular\nor plural as the identity of the person or persons may require.\n11.10 Days. Any period of days mandated under this Agreement shall be determined by reference to calendar days, not business days,\nexcept that any payments, notices, or other performance falling due on a Saturday, Sunday, or federal government holiday shall be considered\ntimely if paid, given, or performed on the next succeeding business day.\n11.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and\nsupersedes all prior agreements and understandings.\nIN WITNESS WHEREOF, the parties have signed this Agreement effective on the date first written above.\nAHP SERVICING LLC\nBy:\nName:\nTitle:\n/s/ Jeremiah Kaye\nJeremiah Kaye\n4	EX1A-6 MAT CTRCT 12 filename12.htm\nExhibit 1A-6F\nAMERICAN HOMEOWNER PRESERVATION\nINVENTION, NON-DISCLOSURE, AND NON-COMPETITION AGREEMENT\nThis is an Agreement, entered into on\n, 2018, by and among Jeremiah Kaye ("Executive") and , AHP Servicing, LLC (the\n"Company").\nBackground\nExecutive is employed by the Company, and the parties wish to set forth certain restrictions concerning confidential information,\ninventions, and competition.\nNOW, THEREFORE, intending to be legally bound and acknowledging the receipt of adequate consideration, the parties hereby agree as\nfollows:\n1. Confidential Information.\n1.1 Defined. For purposes of this Agreement, "Confidential Information" means all information not generally known to the public\nor in the mortgage industry, in spoken, printed, electronic or any other form or medium, relating to the Company or its business. Confidential\nInformation includes, but is not limited to, processes, methods, policies, plans, documents, strategies, agreements, transactions, negotiations,\nknow-how, trade secrets, computer software, applications, databases, manuals, records, supplier information, vendor information, financial\ninformation, accounting records, legal information, pricing information, credit information, personnel information, security procedures, market\nstudies, sales information, inventions, and customer information. Executive understands that the above list is not exhaustive, and that\nConfidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would\notherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or\nused. Executive further understands that Confidential Information includes information developed by him in the course of his employment that\nmeets the definition of Confidential Information set forth above. Notwithstanding the foregoing, Confidential Information shall not include\ninformation that is generally available to and known by the public or in the mortgage industry, provided that the disclosure of such information to\nthe public or the mortgage industry was not the result of direct or indirect action of Executive (or one or more person(s) acting on Executive's\nbehalf) in violation of Executive's obligations pursuant to this Agreement.\n1.2 Disclosure and Use Restrictions. Executive shall (i) treat all Confidential Information as strictly confidential; (ii) not directly\nor indirectly disclose Confidential Information, or allow it to be disclosed, except as required in the performance of Executive's duties for the\nCompany; and (iii) not access or use any Confidential Information, and not copy any documents, records, files, media, or other resources\ncontaining any Confidential Information, or remove any such documents, records, files, media, or other resources from the premises or control of\nthe Company, except as required in the performance of Executive's duties for the Company. The preceding sentence shall not prohibit Executive\nfrom disclosing Confidential Information as required by applicable law or regulation, or pursuant to the valid order of a court of competent\njurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law,\nregulation, or order and, to the extent permitted by applicable law, Executive gives the Company prompt notice of such requirement.\n1.3\nOwnership of Property. All files, letters, memoranda, reports, records, data, sketches, drawings, and all other written,\nphotographic, or other tangible material containing Confidential Information, whether created by Executive or others, which shall come into his\ncustody or possession, shall be and are the exclusive property of the Company to be used by Executive only in the performance of his duties for\nthe Company. All such materials or copies thereof and all tangible property of the Company in the custody or possession of Executive shall be\ndelivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of Executive's employment by the Company. After\nsuch delivery, Executive shall not retain any such materials or copies thereof or any such tangible property; provided, that notwithstanding the\nforegoing Executive may retain records related to the terms and conditions of his employment and his ownership of equity interests in the\nCompany.\n1\n1.4\nInformation and Property of Others. The obligations of Executive under this section 1 shall apply to information and\nmaterials of customers and suppliers of the Company and other third parties who may have disclosed or entrusted the same to the Company or to\nExecutive.\n2. Inventions.\n2.1\nDisclosure. Executive will make full and prompt disclosure to the Company of all inventions, improvements, software, and\nother intellectual property, whether patentable or not, which are created, made, conceived or reduced to practice by Executive or under\nExecutive's direction or jointly with others during the period of his employment which relate to the then current or planned businesses of the\nCompany, whether or not during normal working hours or on the premises of the Company, or which are otherwise created, made, conceived or\nreduced to practice by Executive or under Executive's direction or jointly with others during the term of his employment using tools, equipment\nor other assets of the Company ("Developments").\n2.2\nAssignment. Executive agrees to assign, and upon development by Executive of any element of intellectual property does\nautomatically assign, to the Company, ownership of all United States and international copyrights, patents, and other intellectual property rights\nin each Development. Executive shall cooperate with the Company in obtaining, maintaining, and enforcing all intellectual property rights\nrelating to Developments, as the Company deems necessary or appropriate. This assignment is undertaken in part as a contingency against the\npossibility that any such Development, by operation of law, may not be considered a work made for hire by Executive for the Company.\nExecutive also hereby waives all claims to moral rights in any Developments.\n3.\nNon-Solicitation.\n3.1\nCustomers. For as long as he is performing services on behalf of the Company and for a period of twelve (12) months\nthereafter, Executive shall not initiate contact or communicate, directly or indirectly, with any entity for which the Company has provided\nmortgage servicing within the previous twelve (12) months in an effort to induce such person to use a different provider.\n3.2 Employees and Independent Contractors. For as long as he is performing services on behalf of the Company and for a period\nof twelve (12) months thereafter, Executive shall not hire any employees or individual independent contractors of the Company or its affiliates,\nor initiate contact or communicate, directly or indirectly, with any such persons in an effort to induce such persons to terminate their relationship\nwith the Company or its affiliates; provided, that the foregoing shall not apply with respect to employees and independent contractors who\nrespond to general advertisements regarding hiring of employees or engagement of independent contractors or respond to inquiries by\nindependent recruiting firms not resulting from direction to such firms to include employees or independent contractors of the Company in such\nsolicitation activities.\n4.\nNon-Competition. For as long as he is performing services on behalf of the Company and for a period of twelve (12) months thereafter,\nExecutive shall not participate, directly or indirectly, as an owner, employee, consultant, or otherwise, in any proprietorship, corporation,\npartnership, or other entity, engaged in purchasing or investing in "non-performing" distressed residential mortgage loans, provided that the\nforegoing shall not prohibit or restrict Executive from being an owner, employee, consultant, or otherwise, in any proprietorship, corporation,\npartnership, or other entity, which is engaged in the business of purchasing or investing in "nonperforming" distressed residential mortgage loans\namong multiple businesses so long as Executive is not personally involved in the operations of the business with respect to purchasing or\ninvesting in "non-performing" distressed residential mortgage loans. Due to the nature of the businesses conducted by the Company, Executive\nacknowledges that the foregoing restrictions shall have no geographic limitation.\n5.\nAcknowledgment. Executive represents and warrants that (i) his knowledge, skills and abilities are sufficient to permit his to earn a\nsatisfactory livelihood without violating any provision of this Agreement; (ii) the restrictions set forth in this Agreement are necessary to protect\nthe legitimate proprietary interests of the Company, and (iii) he has received adequate consideration for his agreement to the restrictions set forth\nherein, including but not limited to an equity interest in the Company.\n2\n6.\nRemedies. Executive acknowledges that a breach of this Agreement will cause great and irreparable injury and damage, which cannot\nbe reasonably or adequately compensated by money damages. Accordingly, Executive acknowledges that the remedies of injunction and specific\nperformance shall be available in the event of such a breach, in addition to money damages or other legal or equitable remedies. Any period of\nrestriction set forth in this Agreement shall be extended for a period of time equal to the duration of any breach or violation hereof.\n7.\nNotification. Any person employing Executive or evidencing any intention to employ Executive may be notified as to the existence and\nprovisions of this Agreement.\n8.\nSurvival. The provisions of this Agreement shall survive the expiration or termination of the relationship whereby Executive renders\nservices to the Company.\n9.\nModification of Covenants; Enforceability. In the event that any provision of this Agreement is held to be in any respect an\nunreasonable restriction, then the court so holding may modify the terms thereof, including the period of time during which it operates or the\ngeographic area to which it applies, or effect any other change to the extent necessary to render this Agreement enforceable, it being\nacknowledged by the parties that the representations and covenants set forth herein are of the essence to the relationship between the Company\nand Executive.\n10.\nNo Employment Contract. Nothing in this Agreement shall be construed as giving Executive the right to render services on behalf of\nthe Company or its affiliates for compensation. Except as otherwise provided in other written agreements, the Company may terminate their\nrelationship with Executive at will.\n11.\nMiscellaneous.\n11.1 Amendments; Waivers. No amendment, modification, or waiver of any provision of this Agreement shall be binding unless in\nwriting and signed by the party against whom the operation of such amendment, modification, or waiver is sought to be enforced. No delay in the\nexercise of any right shall be deemed a waiver thereof, nor shall the waiver of a right or remedy in a particular instance constitute a waiver of\nsuch right or remedy generally.\n11.2 Notices. Any notice or document required or permitted to be given under this Agreement may be given by a party or by its legal\ncounsel and shall be deemed to be given (i) one day after the date such notice is deposited with a commercial overnight delivery service with\ndelivery fees paid, to the principal business address of the Company or the address of Executive on file with the Company, as applicable; or (ii)\non the date transmitted by electronic mail to _______________ @ahpfund.com in the case of the Company and to __________________ in the\ncase of Executive, in each case with transmission receipt acknowledgment from the recipient by non-automated email response or other written\nconfirmation of receipt. A party may change its own notice address by giving notice satisfactory under this section.\n11.3 Governing Law. This Agreement shall be governed by the internal laws of Illinois without giving effect to the principles of\nconflicts of laws. Each party hereby consents to the personal jurisdiction of the Federal or Illinois courts located in or most geographically\nconvenient to Cook County, Illinois, and agrees that all disputes arising from this Agreement shall be prosecuted in such courts. Each party\nhereby agrees that any such court shall have in person jurisdiction over such party and consents to service of process by notice sent by regular\nmail to the address set forth above and/or by any means authorized by Illinois law.\n11.4 Language Construction. The language of this Agreement shall be construed in accordance with its fair meaning and not for or\nagainst any party. The parties acknowledge that each party and its counsel have reviewed and had the opportunity to participate in the drafting of\nthis Agreement and, accordingly, that the rule of construction that would resolve ambiguities in favor of non-drafting parties shall not apply to\nthe interpretation of this Agreement.\n3\n11.5 No Offer. The submission of this Agreement by any party for the review and/or execution by another party does not constitute\nan offer or reservation of rights for the benefit of any party. This Agreement shall become effective, and the parties shall become legally bound,\nonly if and when all parties have executed this Agreement.\n11.6 Signatures. This Agreement may be signed in counterparts, each of which shall be deemed to be a fully-executed original. An\noriginal signature transmitted by email shall be deemed to be original for purposes of this Agreement. This Agreement may be signed\nelectronically, e.g ., via DocuSign.\n11.7 Binding Effect. This Agreement shall inure to the benefit of the respective heirs, legal representatives and permitted assigns of\neach party, and shall be binding upon the heirs, legal representatives, successors and assigns of each party.\n11.8 Titles and Captions. All article, section and paragraph titles and captions contained in this Agreement are for convenience only\nand are not deemed a part of the context hereof.\n11.9 Pronouns and Plurals. All pronouns and any variations thereof are deemed to refer to the masculine, feminine, neuter, singular\nor plural as the identity of the person or persons may require.\n11.10 Days. Any period of days mandated under this Agreement shall be determined by reference to calendar days, not business days,\nexcept that any payments, notices, or other performance falling due on a Saturday, Sunday, or federal government holiday shall be considered\ntimely if paid, given, or performed on the next succeeding business day.\n11.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and\nsupersedes all prior agreements and understandings.\nIN WITNESS WHEREOF, the parties have signed this Agreement effective on the date first written above.\nAHP SERVICING LLC\nBy: __________________________\nName:\nTitle:\n/s/ Jeremiah Kaye\nJeremiah Kaye\n4
+7d0609e79512805f21a1c96ed751dd56.pdf	effective_date jurisdiction party term	EX-99.(D)(4) 14 dex99d4.htm MUTUAL CONFIDENTIALITY AGREEMENT, DATED AS OF MAY 14, 2003\nBETWEEN FLEXSTEEL AND\nMUTUAL CONFIDENTIALITY AGREEMENT\nTHIS MUTUAL CONFIDENTIALITY AGREEMENT (the “Agreement”) is made and entered into as of the 14th day of May 2003, by\nand between Flexsteel Industries, Inc., and DMI Furniture, Inc.\nRECITALS:\nA. The parties have had, or are interested in entering into, discussions regarding a potential business relationship.\nB. In the course of such discussions and/or during such relationship, each party (a “Receiving Party”) has had or will have access to\nConfidential Information (as hereinafter defined) belonging to the other party hereto (a “Disclosing Party”) with the understanding and agreement\nthat such Confidential Information will be kept strictly confidential, and the parties now wish to confirm their understanding and agreement in\nwriting.\nTHEREFORE, in consideration of the premises and covenants set forth herein, and for other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, it is hereby agreed as follows:\n1. As used in this Agreement, the term “Confidential Information” means all information, whether oral, written or otherwise, belonging\nto or concerning a Disclosing Party, its affiliates, or its clients or customers, including, without limitation, strategic, marketing and business plans,\nmodels, and initiatives, computer programs, research and development projects, financial information, identities of, and other information with\nrespect to the Disclosing Party’s suppliers, clients and customers, trade secrets, and other nonpublic aspects of the Disclosing Party’s business, which\nsuch Disclosing Party or its representatives provided or provide at any time to a Receiving Party or any of its representatives and is identified as\n“Confidential” by the Disclosing Party in writing to the Receiving Party at the time of disclosure. It includes, without limitation, analyses,\ncompilations, studies and other documents, in whatever form, which are based upon, incorporate or otherwise reflect such Confidential Information\nthat has been so identified. The term Confidential Information does not include information that would otherwise be Confidential Information if (a)\nsuch information has become or hereafter becomes generally available to the public other than as a result of a disclosure by the Receiving Party or\nany of its representatives, (b) such information is furnished to the Receiving Party on a nonconfidential basis from a source other than the Disclosing\nParty, or (c) such information is within the Receiving Party’s possession prior to its being furnished to such Receiving Party by the Disclosing Party.\n2. All Confidential Information shall be held and treated by the Receiving Party and its representatives in confidence and will not, except\nas hereinafter expressly permitted, be disclosed or used by the Receiving Party or its representatives other than in connection with the Receiving\nParty’s consideration of a potential business relationship with the Disclosing Party and as necessary in the course of the parties’ business\nrelationship. The Receiving Party shall disclose Confidential Information only to its representatives (a) who need to know the Confidential\nInformation in connection with the relationship between the parties, (b) who are informed of the confidential nature of the information the Receiving\nParty discloses to them, and (c) who are under an obligation of confidentiality to the Receiving Party.\n3. Both parties agree, in addition to and not in limitation of, any of the rights, remedies or damages otherwise available, at law or in\nequity, each shall be entitled to injunctive relief in order to prevent or restrain any breach of this Confidentiality Agreement without the necessity of\nposting any bond or other security. This relief is necessary due to the fact that future damages to either party are indeterminable and not subject to\nexact measure. Such remedies shall not be exclusive and either party may seek any other remedy available at law or in equity.\n4. Each of the parties agrees that it will not hire any of the current employees of the other for a period of two (2) years from the date of\nthis Agreement, except by express written permission of the other party.\n5. The parties agree that if either of them violates this Agreement, and the other party is forced to enforce the Agreement, the\nnonbreaching party shall be entitled to recover all reasonable attorney’s fees and court costs necessary to enforce the term of this Agreement from\nthe breaching party.\n6. In the event either party notifies the other that it does not want to continue discussions or proceed with a business relationship, all\nwritten Confidential Information, including all copies thereof, provided by each Disclosing Party will be returned to such Disclosing Party or\ndestroyed immediately upon written request of the Disclosing Party. If a Receiving Party is requested or required to disclose any Confidential\nInformation, such Receiving Party will provide the Disclosing Party with prompt written notice of such request or requirement so that the Disclosing\nParty may seek an appropriate protective order or other remedy and/or waive its rights under this Agreement with respect to that portion of the\nConfidential Information which comes within the scope of the request or requirement. If, in the absence of a protective order, the Receiving Party is\ncompelled to disclose any Confidential Information, it may disclose such information without liability under this Agreement.\n7. The covenants and agreements herein shall survive the termination of discussions or any business relationship between the parties and\nshall remain in full force and effect with respect to any information until the same ceases to be Confidential Information as defined above. The\nvalidity, construction, and enforceability of this Agreement shall be governed in all respects by the laws of the United States and State of Minnesota\napplicable to agreements made and to be performed entirely within the State of Minnesota, without regard to the principles of comity or conflicts of\nlaws of the State of Minnesota or any other state.\n8. This Agreement is not intended to supersede the provisions of the Confidentiality Agreement between the parties dated November 27,\n2002, which remains in full force and effect.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.\nFLEXSTEEL INDUSTRIES, INC.\nDMI FURNITURE, INC.\nBy:\n/s/ K. BRUCE LAURITSEN\nBy:\n/s/ DONALD D. DREHER\nK. Bruce Lauritsen\nPresident & Chief Executive Officer\nDonald D. Dreher\nPresident & Chief Executive Officer	EX-99.(D)(4) 14 dex99d4.htm MUTUAL CONFIDENTIALITY AGREEMENT, DATED AS OF MAY 14, 2003\nBETWEEN FLEXSTEEL AND\nMUTUAL CONFIDENTIALITY AGREEMENT\nTHIS MUTUAL CONFIDENTIALITY AGREEMENT (the “Agreement”) is made and entered into as of the 14th day of May 2003, by\nand between Flexsteel Industries, Inc., and DMI Furniture, Inc.\nRECITALS:\nA. The parties have had, or are interested in entering into, discussions regarding a potential business relationship.\nB. In the course of such discussions and/or during such relationship, each party (a “Receiving Party”) has had or will have access to\nConfidential Information (as hereinafter defined) belonging to the other party hereto (a “Disclosing Party”) with the understanding and agreement\nthat such Confidential Information will be kept strictly confidential, and the parties now wish to confirm their understanding and agreement in\nwriting.\nTHEREFORE, in consideration of the premises and covenants set forth herein, and for other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, it is hereby agreed as follows:\n1. As used in this Agreement, the term “Confidential Information” means all information, whether oral, written or otherwise, belonging\nto or concerning a Disclosing Party, its affiliates, or its clients or customers, including, without limitation, strategic, marketing and business plans,\nmodels, and initiatives, computer programs, research and development projects, financial information, identities of, and other information with\nrespect to the Disclosing Party’s suppliers, clients and customers, trade secrets, and other nonpublic aspects of the Disclosing Party’s business, which\nsuch Disclosing Party or its representatives provided or provide at any time to a Receiving Party or any of its representatives and is identified as\n“Confidential” by the Disclosing Party in writing to the Receiving Party at the time of disclosure. It includes, without limitation, analyses,\ncompilations, studies and other documents, in whatever form, which are based upon, incorporate or otherwise reflect such Confidential Information\nthat has been so identified. The term Confidential Information does not include information that would otherwise be Confidential Information if (a)\nsuch information has become or hereafter becomes generally available to the public other than as a result of a disclosure by the Receiving Party or\nany of its representatives, (b) such information is furnished to the Receiving Party on a nonconfidential basis from a source other than the Disclosing\nParty, or (c) such information is within the Receiving Party’s possession prior to its being furnished to such Receiving Party by the Disclosing Party.\n2. All Confidential Information shall be held and treated by the Receiving Party and its representatives in confidence and will not, except\nas hereinafter expressly permitted, be disclosed or used by the Receiving Party or its representatives other than in connection with the Receiving\nParty’s consideration of a potential business relationship with the Disclosing Party and as necessary in the course of the parties’ business\nrelationship. The Receiving Party shall disclose Confidential Information only to its representatives (a) who need to know the Confidential\nInformation in connection with the relationship between the parties, (b) who are informed of the confidential nature of the information the Receiving\nParty discloses to them, and (c) who are under an obligation of confidentiality to the Receiving Party.\n3. Both parties agree, in addition to and not in limitation of, any of the rights, remedies or damages otherwise available, at law or in\nequity, each shall be entitled to injunctive relief in order to prevent or restrain any breach of this Confidentiality Agreement without the necessity of\nposting any bond or other security. This relief is necessary due to the fact that future damages to either party are indeterminable and not subject to\nexact measure. Such remedies shall not be exclusive and either party may seek any other remedy available at law or in equity.\n4. Each of the parties agrees that it will not hire any of the current employees of the other for a period of two (2) years from the date of\nthis Agreement, except by express written permission of the other party.\n5. The parties agree that if either of them violates this Agreement, and the other party is forced to enforce the Agreement, the\nnonbreaching party shall be entitled to recover all reasonable attorney’s fees and court costs necessary to enforce the term of this Agreement from\nthe breaching party.\n6. In the event either party notifies the other that it does not want to continue discussions or proceed with a business relationship, all\nwritten Confidential Information, including all copies thereof, provided by each Disclosing Party will be returned to such Disclosing Party or\ndestroyed immediately upon written request of the Disclosing Party. If a Receiving Party is requested or required to disclose any Confidential\nInformation, such Receiving Party will provide the Disclosing Party with prompt written notice of such request or requirement so that the Disclosing\nParty may seek an appropriate protective order or other remedy and/or waive its rights under this Agreement with respect to that portion of the\nConfidential Information which comes within the scope of the request or requirement. If, in the absence of a protective order, the Receiving Party is\ncompelled to disclose any Confidential Information, it may disclose such information without liability under this Agreement.\n7. The covenants and agreements herein shall survive the termination of discussions or any business relationship between the parties and\nshall remain in full force and effect with respect to any information until the same ceases to be Confidential Information as defined above. The\nvalidity, construction, and enforceability of this Agreement shall be governed in all respects by the laws of the United States and State of Minnesota\napplicable to agreements made and to be performed entirely within the State of Minnesota, without regard to the principles of comity or conflicts of\nlaws of the State of Minnesota or any other state.\n8. This Agreement is not intended to supersede the provisions of the Confidentiality Agreement between the parties dated November 27,\n2002, which remains in full force and effect.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.\nFLEXSTEEL INDUSTRIES, INC. DMI FURNITURE, INC.\nBy: /s/  K.BRUCE LAURITSEN By: /s/  DONALD D. DREHER\nK. Bruce Lauritsen Donald D. Dreher\nPresident & Chief Executive Officer President & Chief Executive Officer	EX-99.(D)(4) 14 dex99d4.htm MUTUAL CONFIDENTIALITY AGREEMENT, DATED AS OF MAY 14, 2003\nBETWEEN FLEXSTEEL AND\nMUTUAL CONFIDENTIALITY AGREEMENT\nTHIS MUTUAL CONFIDENTIALITY AGREEMENT (the "Agreement") is made and entered into as of the 14th day of May 2003, by\nand between Flexsteel Industries, Inc., and DMI Furniture, Inc.\nRECITALS:\nA. The parties have had, or are interested in entering into, discussions regarding a potential business relationship.\nB. In the course of such discussions and/or during such relationship, each party (a "Receiving Party") has had or will have access to\nConfidential Information (as hereinafter defined) belonging to the other party hereto (a "Disclosing Party") with the understanding and agreement\nthat such Confidential Information will be kept strictly confidential, and the parties now wish to confirm their understanding and agreement in\nwriting.\nTHEREFORE, in consideration of the premises and covenants set forth herein, and for other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, it is hereby agreed as follows:\n1. As used in this Agreement, the term "Confidential Information" means all information, whether oral, written or otherwise, belonging\nto or concerning a Disclosing Party, its affiliates, or its clients or customers, including, without limitation, strategic, marketing and business plans,\nmodels, and initiatives, computer programs, research and development projects, financial information, identities of, and other information with\nrespect to the Disclosing Party's suppliers, clients and customers, trade secrets, and other nonpublic aspects of the Disclosing Party's business, which\nsuch Disclosing Party or its representatives provided or provide at any time to a Receiving Party or any of its representatives and is identified as\n"Confidential" by the Disclosing Party in writing to the Receiving Party at the time of disclosure. It includes, without limitation, analyses,\ncompilations, studies and other documents, in whatever form, which are based upon, incorporate or otherwise reflect such Confidential Information\nthat\nhas been so identified. The term Confidential Information does not include information that would otherwise be Confidential Information if (a)\nsuch information has become or hereafter becomes generally available to the public other than as a result of a disclosure by the Receiving Party or\nany of its representatives, (b) such information is furnished to the Receiving Party on a nonconfidential basis from a source other than the Disclosing\nParty, or (c) such information is within the Receiving Party's possession prior to its being furnished to such Receiving Party by the Disclosing Party.\n2. All Confidential Information shall be held and treated by the Receiving Party and its representatives in confidence and will not, except\nas hereinafter expressly permitted, be disclosed or used by the Receiving Party or its representatives other than in connection with the Receiving\nParty's consideration of a potential business relationship with the Disclosing Party and as necessary in the course of the parties' business\nrelationship. The Receiving Party shall disclose Confidential Information only to its representatives (a) who need to know the Confidential\nInformation in connection with the relationship between the parties, (b) who are informed of the confidential nature of the information the Receiving\nParty discloses to them, and (c) who are under an obligation of confidentiality to the Receiving Party.\n3. Both parties agree, in addition to and not in limitation of, any of the rights, remedies or damages otherwise available, at law or in\nequity, each shall be entitled to injunctive relief in order to prevent or restrain any breach of this Confidentiality Agreement without the necessity of\nposting any bond or other security. This relief is necessary due to the fact that future damages to either party are indeterminable and not subject to\nexact measure. Such remedies shall not be exclusive and either party may seek any other remedy available at law or in equity.\n4. Each of the parties agrees that it will not hire any of the current employees of the other for a period of two (2) years from the\ndate\nof\nthis Agreement, except by express written permission of the other party.\n5. The parties agree that if either of them violates this Agreement, and the other party is forced to enforce the Agreement, the\nnonbreaching party shall be entitled to recover all reasonable attorney's fees and court costs necessary to enforce the term of this Agreement from\nthe breaching party.\n6. In the event either party notifies the other that it does not want to continue discussions or proceed with a business relationship, all\nwritten Confidential Information, including all copies thereof, provided by each Disclosing Party will be returned to such Disclosing Party or\ndestroyed immediately upon written request of the Disclosing Party. If a Receiving Party is requested or required to disclose any Confidential\nInformation, such Receiving Party will provide the Disclosing Party with prompt written notice of such request or requirement so that the Disclosing\nParty may seek an appropriate protective order or other remedy and/or waive its rights under this Agreement with respect to that portion of the\nConfidential Information which comes within the scope of the request or requirement. If, in the absence of a protective order, the Receiving Party\nis\ncompelled to disclose any Confidential Information, it may disclose such information without liability under this Agreement.\n7. The covenants and agreements herein shall survive the termination of discussions or any business relationship between the parties and\nshall remain in full force and effect with respect to any information until the same ceases to be Confidential Information as defined above. The\nvalidity, construction, and enforceability of this Agreement shall be governed in all respects by the laws of the United States and State of Minnesota\napplicable to agreements made and to be performed entirely within the State of Minnesota, without regard to the principles of comity or conflicts of\nlaws of the State of Minnesota or any other state.\n8. This Agreement is not intended to supersede the provisions of the Confidentiality Agreement between the parties dated November 27,\n2002, which remains in full force and effect.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.\nFLEXSTEEL INDUSTRIES, INC.\nDMI FURNITURE, INC.\nBy:\n/s/ K. BRUCE LAURITSEN\nBy:\n/s/ DONALD D. DREHER\nK. Bruce Lauritsen\nDonald D. Dreher\nPresident & Chief Executive Officer\nPresident & Chief Executive Officer	EX-99.(D)(4) 14 dex99d4.htm MUTUAL CONFIDENTIALITY AGREEMENT, DATED AS OF MAY 14, 2003\nBETWEEN FLEXSTEEL AND\nMUTUAL CONFIDENTIALITY AGREEMENT\nTHIS MUTUAL CONFIDENTIALITY AGREEMENT (the “Agreement”) is made and entered into as of the 14th day of May 2003, by\nand between Flexsteel Industries, Inc., and DMI Furniture, Inc.\nRECITALS:\nA. The parties have had, or are interested in entering into, discussions regarding a potential business relationship.\nB. In the course of such discussions and/or during such relationship, each party (a “Receiving Party”) has had or will have access to\nConfidential Information (as hereinafter defined) belonging to the other party hereto (a “Disclosing Party”) with the understanding and agreement\nthat such Confidential Information will be kept strictly confidential, and the parties now wish to confirm their understanding and agreement in\nwriting.\nTHEREFORE, in consideration of the premises and covenants set forth herein, and for other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, it is hereby agreed as follows:\n1. As used in this Agreement, the term “Confidential Information” means all information, whether oral, written or otherwise, belonging\nto or concerning a Disclosing Party, its affiliates, or its clients or customers, including, without limitation, strategic, marketing and business plans,\nmodels, and initiatives, computer programs, research and development projects, financial information, identities of, and other information with\nrespect to the Disclosing Party’s suppliers, clients and customers, trade secrets, and other nonpublic aspects of the Disclosing Party’s business, which\nsuch Disclosing Party or its representatives provided or provide at any time to a Receiving Party or any of its representatives and is identified as\n“Confidential” by the Disclosing Party in writing to the Receiving Party at the time of disclosure. It includes, without limitation, analyses,\ncompilations, studies and other documents, in whatever form, which are based upon, incorporate or otherwise reflect such Confidential Information\nthat has been so identified. The term Confidential Information does not include information that would otherwise be Confidential Information if (a)\nsuch information has become or hereafter becomes generally available to the public other than as a result of a disclosure by the Receiving Party or\nany of its representatives, (b) such information is furnished to the Receiving Party on a nonconfidential basis from a source other than the Disclosing\nParty, or (c) such information is within the Receiving Party’s possession prior to its being furnished to such Receiving Party by the Disclosing Party.\n2. All Confidential Information shall be held and treated by the Receiving Party and its representatives in confidence and will not, except\nas hereinafter expressly permitted, be disclosed or used by the Receiving Party or its representatives other than in connection with the Receiving\nParty’s consideration of a potential business relationship with the Disclosing Party and as necessary in the course of the parties’ business\nrelationship. The Receiving Party shall disclose Confidential Information only to its representatives (a) who need to know the Confidential\nInformation in connection with the relationship between the parties, (b) who are informed of the confidential nature of the information the Receiving\nParty discloses to them, and (c) who are under an obligation of confidentiality to the Receiving Party.\n3. Both parties agree, in addition to and not in limitation of, any of the rights, remedies or damages otherwise available, at law or in\nequity, each shall be entitled to injunctive relief in order to prevent or restrain any breach of this Confidentiality Agreement without the necessity of\nposting any bond or other security. This relief is necessary due to the fact that future damages to either party are indeterminable and not subject to\nexact measure. Such remedies shall not be exclusive and either party may seek any other remedy available at law or in equity.\n4. Each of the parties agrees that it will not hire any of the current employees of the other for a period of two (2) years from the date of\nthis Agreement, except by express written permission of the other party.\n5. The parties agree that if either of them violates this Agreement, and the other party is forced to enforce the Agreement, the\nnonbreaching party shall be entitled to recover all reasonable attorney’s fees and court costs necessary to enforce the term of this Agreement from\nthe breaching party.\n6. In the event either party notifies the other that it does not want to continue discussions or proceed with a business relationship, all\nwritten Confidential Information, including all copies thereof, provided by each Disclosing Party will be returned to such Disclosing Party or\ndestroyed immediately upon written request of the Disclosing Party. If a Receiving Party is requested or required to disclose any Confidential\nInformation, such Receiving Party will provide the Disclosing Party with prompt written notice of such request or requirement so that the Disclosing\nParty may seek an appropriate protective order or other remedy and/or waive its rights under this Agreement with respect to that portion of the\nConfidential Information which comes within the scope of the request or requirement. If, in the absence of a protective order, the Receiving Party is\ncompelled to disclose any Confidential Information, it may disclose such information without liability under this Agreement.\n7. The covenants and agreements herein shall survive the termination of discussions or any business relationship between the parties and\nshall remain in full force and effect with respect to any information until the same ceases to be Confidential Information as defined above. The\nvalidity, construction, and enforceability of this Agreement shall be governed in all respects by the laws of the United States and State of Minnesota\napplicable to agreements made and to be performed entirely within the State of Minnesota, without regard to the principles of comity or conflicts of\nlaws of the State of Minnesota or any other state.\n8. This Agreement is not intended to supersede the provisions of the Confidentiality Agreement between the parties dated November 27,\n2002, which remains in full force and effect.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.\nFLEXSTEEL INDUSTRIES, INC.\nDMI FURNITURE, INC.\nBy:\n/s/ K. BRUCE LAURITSEN\nBy:\n/s/ DONALD D. DREHER\nK. Bruce Lauritsen\nPresident & Chief Executive Officer\nDonald D. Dreher\nPresident & Chief Executive Officer
+7e7d64c4020fe273508f203e609b8ad8.pdf	effective_date jurisdiction party term	EX-10.2 7 dex102.htm CONFIDENTIALITY AGREEMENT\nExhibit 10.2\nSeawell Limited\n14-Par-laVille Road\nHamilton HMGX\nBermuda\nRegistration no. 40612\nCONFIDENTIAL\nJune 23, 2010\nAllis-Chalmers Energy Inc.\nAttn.: Mr. Munawar H. Hidayatallah\nChairman and Chief Executive Officer\n5075 Westheimer, Suite 890\nHouston, Texas 77056\nRe: Confidentiality Agreement\nLadies and Gentlemen:\nAs we have discussed, Allis-Chalmers Energy Inc., a Delaware corporation (“Allis-Chalmers,” which term shall, for purposes of this letter\nagreement (“Agreement”), include its subsidiaries), and Seawell Limited, a Bermuda company (“Parent,” which term shall, for purposes of this\nAgreement, include its subsidiaries) (each a “Party” and collectively, the “Parties”), are considering entering into discussions in order to evaluate a\npossible strategic transaction between the Parties (the “Potential Transaction”). For the purposes of the evaluation of the Potential Transaction, each\nParty may disclose and deliver to the other Party certain information regarding its properties, employees, finances, businesses, operations, assets,\nprospects and financial affairs (each Party furnishing such information being hereinafter referred to, with respect to such information, as the\n“Disclosing Party,” and each Party receiving such information being hereinafter referred to, with respect to such information, as the “Receiving\nParty”). All such information furnished by a Disclosing Party or its Representatives (as defined below) after the date hereof, whether oral, written or\nelectronic, and regardless of the manner in which it is furnished, is referred to in this Agreement as “Proprietary Information.” The term Proprietary\nInformation shall include, without limitation, all data, reports, interpretations, forecasts, records, analyses, compilations, summaries or other\ninformation containing or otherwise reflecting information concerning a Disclosing Party, its respective affiliates and subsidiaries, whether prepared\nby the Receiving Party or others, and any summaries or other documents created by the Receiving Party or others which refer to, relate to, discuss,\nconstitute, or embody all or any portion of the Proprietary Information provided to the Receiving Party by the Disclosing Party (collectively,\n“Evaluation Material”). The term Proprietary Information shall not include, however, information which (a) is or becomes generally available to the\npublic other than as a result of a disclosure by the Receiving Party or any of its Representatives in breach of this Agreement, (b) was or becomes\navailable to the Receiving Party on a nonconfidential basis prior to or after its disclosure by the Disclosing Party or its Representatives from a\nperson, other than the Disclosing Party or its Representatives, who is not known by the Receiving Party or any of its Representatives, after\nreasonable investigation, to be bound by a confidentiality agreement with the Disclosing Party or any of its Representatives, or otherwise under an\nobligation to the Disclosing Party or any of its Representatives to keep such information confidential or (c) is developed independently by the\nReceiving Party or any of its Representatives without use of or reference to Proprietary Information and without violating any of the provisions of\nthis Agreement.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by a Disclosing Party, each Party agrees (a) except as\nrequired by law, rule, applicable regulation, stock exchange rule or disclosure requirement of the Securities and Exchange Commission (collectively,\n“Law”), to keep all Proprietary Information confidential and not to disclose or reveal any Proprietary Information to any person other than directors,\nofficers and employees and those attorneys, accountants, financial advisors, consultants or other agents or advisors who are not officers or employees\n(such persons being referred to herein as “Representatives”) of the Receiving Party, who need to know the Proprietary Information for purposes of\nevaluating the Potential Transaction, and who have been informed of the terms of this Agreement, (b) not to use, and to cause its Representatives not\nto use, Proprietary Information for any purpose other than in connection with the evaluation or the consummation of the Potential Transaction and\n(c) except as required by Law, not to disclose to any person (other than those of the Receiving Party’s Representatives who are actively and directly\nparticipating in the evaluation of the Potential Transaction) any information about the Potential Transaction, or the terms or conditions or any other\nfacts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto, the status or termination thereof,\nthe fact that Proprietary Information has been made available to the Receiving Party or its Representatives or the existence or terms and conditions\nof this Agreement. Each Receiving Party agrees that any use or disclosure of any Proprietary Information or any other information concerning the\nDisclosing Party or the Potential Transaction by any of such Receiving Party’s Representatives in a manner inconsistent with this Agreement shall\nconstitute a breach of this Agreement by such Receiving Party. For purposes of this Agreement, with respect to Parent, the term “Representatives”\nshall include Parent’s potential financing sources and their respective directors, officers, employees, attorneys, accountants, consultants and other\nagents or advisors.\n2\nIn the event that a Receiving Party or any of its Representatives is requested or legally compelled, pursuant to a subpoena, civil investigative\ndemand, regulatory demand or similar process, to disclose any Proprietary Information or any other information concerning the Disclosing Party or\nthe Potential Transaction, each Party agrees that such Receiving Party will provide the Disclosing Party with prompt notice of such request or\nrequirement in order to enable the Disclosing Party to seek an appropriate protective order or other remedy, to consult with the Receiving Party with\nrespect to the Disclosing Party taking steps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in part,\nwith the terms of this Agreement. In any such event, the Receiving Party will use its reasonable best efforts to ensure that all Proprietary Information\nand other information that is so disclosed will be accorded confidential treatment and shall furnish only that portion of the Proprietary Information\nwhich the Receiving Party is advised by counsel is legally required. If the Receiving Party or any of its Representatives is required to disclose\nProprietary Information as a matter of Law, the Receiving Party may disclose only that part of the Proprietary Information as is required by Law to\nbe disclosed (in which case, prior to such disclosure, the Receiving Party will, to the extent practicable, advise and consult with the Disclosing Party\nand its counsel as to such disclosure and the nature and wording of such disclosure), and, to the extent practical in the circumstances, the Receiving\nParty will use its reasonable best efforts to obtain confidential treatment for any Proprietary Information so disclosed.\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that they\nhave a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material\nis not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege. All Proprietary Information that is entitled to protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege and stamped and identified as such shall remain entitled to such protection under\nthese privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any Party to reveal material subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege.\nEach Receiving Party acknowledges that the Proprietary Information is and at all times remains the sole and exclusive property of the\nDisclosing Party, and the Disclosing Party has the exclusive right, title and interest to its Proprietary Information. No right or license, by implication\nor otherwise, is granted by the Disclosing Party as a result of disclosure of Proprietary Information under this Agreement.\n3\nEach Receiving Party acknowledges that neither the Disclosing Party nor any of its Representatives make any express or implied\nrepresentation or warranty as to the accuracy or completeness of any Proprietary Information, and each Receiving Party agrees that none of such\npersons shall have any liability to the Receiving Party or any of its Representatives relating to or arising from the use of any Proprietary Information\nby the Receiving Party or its Representatives or for any errors therein or omissions therefrom. Each Receiving Party also agrees that it is not entitled\nto rely on the accuracy or completeness of any Proprietary Information and that the Receiving Party shall be entitled to rely solely on such\nrepresentations and warranties regarding Proprietary Information as may be made to the Receiving Party in the definitive agreement relating to the\nPotential Transaction, if any, subject to the terms and conditions of such agreement. Each Party agrees that unless and until a definitive agreement\nregarding the Potential Transaction has been executed, neither Party nor any of their respective Representatives shall be under any obligation to the\nother Party with respect to the Potential Transaction by virtue of this Agreement or otherwise, except for the matters specifically agreed to herein.\nIf either Party hereto determines that it does not wish to proceed with the Potential Transaction, it will promptly advise the other Party of that\ndecision in writing (the “Termination Notice”). In such case, the Receiving Party will promptly, upon written request by the Disclosing Party, destroy\nall copies of Proprietary Information, including Evaluation Material, in the Receiving Party’s possession or in the possession of any of the Receiving\nParty’s Representatives; provided, however, that the Receiving Party shall return all copies of Proprietary Information, other than Evaluation\nMaterial, in its possession or in the possession of any of its Representatives to the Disclosing Party if the Disclosing Party so requests, in writing,\nwithin thirty (30) days after receiving or delivering a Termination Notice; and provided further, however, that the Receiving Party and its\nRepresentatives may keep, for record keeping purposes only, one copy of the Evaluation Material (subject, in all events to the use and confidentiality\nrestrictions set forth in this Agreement). Each Party agrees that, upon written request of a Disclosing Party, an officer of the Receiving Party will\ncertify to compliance with this paragraph; and further provided that the Receiving Party may keep such copies of such Proprietary Information as is\nnecessary for the Receiving Party to comply with applicable Law. Notwithstanding the return or destruction of the Proprietary Information, each\nReceiving Party and each of its Representatives will continue to be bound by its obligations hereunder for a period of two (2) years from the date of\nany Termination Notice. In the event that no Termination Notice is delivered, then this Agreement shall automatically terminate two (2) years after\nthe date hereof.\nEach Receiving Party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of\nthe restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-\npublic information and on the communication of such information to any other person when it is reasonably foreseeable that such other person is\nlikely to purchase or sell such securities in reliance upon such information. Each Receiving Party hereby confirms that it, and its Representatives,\nwill take any action necessary to prevent the use of any information about the Disclosing Party in a way which might violate any antitrust or other\napplicable Law.\n4\nIt is understood that the covenants of this Agreement and the Proprietary Information disclosed are special, unique and of extraordinary\ncharacter. Each Disclosing Party may be irreparably harmed by a breach of this Agreement by the Receiving Party or its Representatives, and the use\nof the Proprietary Information for the business purposes of any person other than the Disclosing Party may enable such person to compete unfairly\nwith the Disclosing Party. Without prejudice to the rights and remedies otherwise available to each of the Parties, each Party shall be entitled to seek\nequitable relief by way of injunction or otherwise if the other Party or any of its Representatives breaches or threatens to breach any of the provisions\nof this Agreement. It is further understood and agreed that no failure or delay by a Party in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder. Each Party agrees that if the Receiving Party becomes aware of any disclosure of Proprietary Information of the\nDisclosing Party in violation of the terms hereof, the Receiving Party will promptly notify the Disclosing Party and will reasonably cooperate in any\nattempt by the Disclosing Party to obtain any remedy or relief relative thereto.\nThis Agreement and all controversies arising from or relating to performance under this Agreement shall be governed by and construed in\naccordance with the laws of the State of Texas, without giving effect to principles of choice or conflict of laws. This Agreement shall not be assigned\nby operation of Law or otherwise.\nThis Agreement is solely for the benefit of the Parties, and this Agreement shall not be deemed to confer upon or give to any other third party\nany remedy, claim of liability or reimbursement, cause of action or other right.\nIf any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the remainder of the\nprovisions of this Agreement shall remain in full force and effect. The Parties shall endeavor in good faith negotiations to replace any invalid, illegal\nor unenforceable provision with a valid, legal and enforceable provision, the effect of which comes as close as possible to that of the invalid, illegal\nor unenforceable provision.\n5\nThis Agreement contains the entire agreement between the Parties concerning the subject matter hereof, and no modification of this Agreement\nor waiver of the terms and conditions hereof shall be binding upon the Parties, unless approved in a writing signed by each of the Parties. This\nAgreement may be executed in counterparts, including by facsimile, each of which shall be an original, but all of which together shall constitute one\nand the same agreement.\n[Signature Page Follows]\n6\nPlease acknowledge your agreement to the foregoing by countersigning this Agreement in the space provided below and returning to the\nundersigned a fully executed original copy of this Agreement.\nSEAWELL LIMITED\nBy: /s/ Jorgen P. Rasmussen\nName: Jorgen P. Rasmussen\nTitle: Executive Chairman\nAccepted and Agreed\nas of the date first written\nabove:\nALLIS-CHALMERS ENERGY INC.\nBy: /s/ Munawar H. Hidayatallah\nName: Munawar H. Hidayatallah\nTitle: Chairman and CEO\n7\nLOGO\nJune 30, 2010\nCONFIDENTIAL\nSeawell Limited\n14-Par-la-Ville Road\nHamilton HMGX\nBermuda\nRegistration No. 40612\nAttention:Jorgen Rasmussen, Executive Chairman\nRe: Amendment to Confidentiality Agreement dated as of June 23, 2010.\nGentlemen:\nReference is made hereby to the Confidentiality Agreement dated as of June 23, 2010 (the “Agreement”) by and between Allis-Chalmers\nEnergy Inc. (“Allis-Chalmers”) and Seawell Limited (“Seawell” and together with Allis-Chalmers, the “Parties”). This letter shall serve to evidence\nthe agreement of the Parties to amend the Agreement, as of the date first set forth above, to insert the following two paragraphs at the end of the\nAgreement.\n“Each Party represents and warrants that as of the date hereof, neither it nor any of its subsidiaries beneficially owns any securities of the\nother Party. Each Party agrees that, until the earlier of (x) one year from the date of this Agreement and (y) the date on which a Fundamental\nChange Event (as defined below) with respect to the other Party occurs, neither it nor any of its affiliates will engage in any of the following\nactions, unless and until such action shall hereafter have been specifically invited by the board of directors (or similar managing body) of the\nother Party: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities, securities\nconvertible into voting securities or any direct or indirect rights to acquire any voting securities of the other Party or any subsidiary thereof or\nany assets of the other Party or any subsidiary or division thereof, (ii) make, or in any way participate in, directly or indirectly, any\n“solicitation” of “proxies” (as such terms are used in the rules of the United States Securities and Exchange Commission) to vote, or seek to\nadvise or influence any person or entity with respect to the voting of, any voting securities of the other Party, (iii) make any public\nannouncement with respect to, or submit a proposal for, or offer of (with or without conditions) any merger, consolidation, business\ncombination, tender or exchange offer, restructuring, recapitalization or other extraordinary transaction of or involving the other Party or any\nof its subsidiaries or their securities or assets, (iv) form, join or in any way participate in a “group” (as defined in Section 13(4)(3) of the\nSecurities Exchange Act of 1934, as amended, and regulations thereunder) in connection with any voting securities of the other Party,\n(v) otherwise act, alone or in concert with others, to seek to control or influence the Board of Directors of the other Party, (vi) make any\nrequest or proposal to amend, waive or terminate any provision of this paragraph if such action would reasonably be likely to require public\ndisclosure or (vii) directly or indirectly publicly announce an intention to do, or enter into any arrangement or understanding with others to do,\nany of the actions\nSeawell Limited\nJune 30, 2010\nPage 2\nrestricted or prohibited under clauses (i) through (vi) of this paragraph, or take any action that is reasonable likely to result in the other Party or\nany of its affiliates having to make a public announcement regarding any of the matters referred to in clauses (i) through (vi) of this paragraph.\nFor purposes of this Agreement, a “Fundamental Change Event” means, with respect to a Party, (i) any third party commencing, or publicly\nannouncing its intention to commence, a tender or exchange offer which, if consummated, would give such third party ownership of 50% or\nmore of the outstanding voting securities of such Party; (ii) such Party or any of its subsidiaries entering into a binding definitive agreement\nwith a third party to effect (x) a merger or other business combination or transaction pursuant to which, if consummated, the outstanding shares\nof common stock of such Party immediately prior to such merger or other business combination or transaction would represent less than 50%\nof the outstanding voting power of such Party or the resulting entity immediately following such merger or other business combination or\ntransaction or (y) a sale of all or substantially all of the assets of such Party and its subsidiaries on a consolidated basis; (iii) any third party\npublicly announcing its intention to make a proposal providing for a merger, consolidation, dissolution, recapitalization or other business\ncombination involving such Party or any of its subsidiaries (or such Party shall have made a public announcement with respect to its receipt of\nsuch a proposal); (iv) such Party commencing any voluntary case, proceeding or other action (x) under any existing or future law of any\njurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors or (y) seeking appointment of a\nreceiver, trustee, assignee, custodian, conservator or other similar official for it or for all or any substantial portion of its assets; or (v) the\ncommencement against such Party of any case, proceeding or other action (x) under any existing or future law of any jurisdiction, domestic or\nforeign, relating to bankruptcy, insolvency, reorganization or relief of debtors or (y) seeking appointment of a receiver, trustee, assignee,\ncustodian, conservator or other similar official for it or for all or any substantial portion of its assets that (1) results in the entry of an order for\nrelief or any such adjudication or appointment or (2) remains undismissed, undischarged or unbonded for a period of 60 days; provided, that\nfor purposes of this sentence, the term “Party” shall mean Allis-Chalmers or Seawell, as the case may be, and shall not include any subsidiary\nof such person. Notwithstanding anything in this Agreement to the contrary, for purposes of this paragraph neither Seadrill Ltd nor any of its\naffiliates (other than Seawell, its subsidiaries and any affiliate of Seadrill Ltd who is an officer or director of Seawell or any of its subsidiaries\nand is acting in such capacity) shall constitute an affiliate of Seawell.\nTo induce the Parties to proceed with their evaluation of a Potential Transaction, the Parties agree that during the Exclusivity Period\ndescribed below, they will not, directly or indirectly, conduct any negotiations with, or solicit any offers from, any third party for the\nacquisition of any of their respective outstanding capital stock, the acquisition of any material portion of their respective assets or properties, or\nfor the merger or consolidation of either of them or their respective subsidiaries; provided, however that the foregoing shall not restrict Seawell\nfrom conducting any such negotiations with, or soliciting any such offers from, Seadrill Ltd or any of its affiliates. The “Exclusivity Period”\nshall be the period beginning on the date of execution of this Agreement by the Parties and ending on the earlier of (i) the execution of a\ndefinitive agreement regarding the Potential Transaction and (ii) August 3, 2010. The Parties hereby acknowledge and agree that (x) Allis-\nChalmers is in negotiations to purchase all of the outstanding capital stock of American Well Control, Inc., (y) Seawell is pursuing an\nacquisition of Rig Inspection Services and (z) Seawell is negotiating a joint venture with IKM Elektro AS, and none of such transactions shall\nbe subject to the prohibitions of this paragraph.\nExcept as expressly provided herein, the Agreement shall remain in full force and effect.\nThis letter agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute the\nsame agreement.\nSeawell Limited\nJune 30, 2010\nPage 3\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this letter agreement, which will constitute\nour agreement with respect to the matters set forth herein.\n(Remainder of page left intentionally blank)\nVery truly yours,\nAllis-Chalmers Energy Inc.\n/s/ Munawar H. Hidayatallah\nMunawar H. Hidayatallah\nChief Executive Officer and Chairman\nAgreed to this\nday of July 2010:\nSeawell Limited\nBy: /s/ Jorgen P. Rasmussen\nName: Jorgen P. Rasmsussun\nTitle: Executive Chairman\nSeadrill Limited\nBy: /s/ Alf Thorkildsen\nName: Alf Thorkildsen\nTitle:\nSeawell Limited\n14-Par-la-Ville Road\nHamilton HMGX\nBermuda\nRegistration No. 40612\nAugust 3, 2010\nCONFIDENTIAL\nAllis-Chalmers Energy Inc.\n5075 Westheimer, Suite 890\nHouston, Texas 77056\nAttention: Munawar H. Hidayatallah, Chief Executive Officer and Chairman\nRe: Amendment to Confidentiality Agreement dated as of June 23, 2010, as amended.\nGentlemen:\nReference is made hereby to the Confidentiality Agreement dated as of June 23, 2010, as amended as of June 30, 2010 (the “Agreement”), by\nand between Allis-Chalmers Energy Inc. (“Allis-Chalmers”) and Seawell Limited (“Seawell” and together with Allis-Chalmers, the “Parties”). This\nletter shall serve to evidence the agreement of the Parties to amend the Agreement, as of the date first set forth above, as follows: the reference to\n“August 3, 2010” in the last paragraph of the Agreement is hereby amended to read “August 10, 2010”.\nExcept as expressly provided herein, the Agreement shall remain in full force and effect. This letter agreement may be executed in\ncounterparts, each of which shall be deemed to be an original, but both of which shall constitute the same agreement.\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this letter agreement, which will constitute\nour agreement with respect to the matters set forth herein.\n(Remainder of page left intentionally blank)\nVery truly yours,\nSeawell Limited\n/s/ Jorgen Rasmussen\nJorgen Rasmussen\nChairman\nAgreed to this\nday of August 2010:\nAllis-Chalmers Energy Inc.\nBy: /s/ Munawar H. Hidayatallah\nMunawar H. Hidayatallah\nChief Executive Officer and Chairman	EX-10.2 7 dex102.htm CONFIDENTIALITY AGREEMENT\nExhibit 10.2\nSeawell Limited\n14-Par-laVille Road\nHamilton HMGX\nBermuda\nRegistration no. 40612\nCONFIDENTIAL\nJune 23, 2010\nAllis-Chalmers Energy Inc.\nAttn.: Mr. Munawar H. Hidayatallah\nChairman and Chief Executive Officer\n5075 Westheimer, Suite 890\nHouston, Texas 77056\nRe: Confidentiality Agreement\nLadies and Gentlemen:\nAs we have discussed, Allis-Chalmers Energy Inc., a Delaware corporation (“Allis-Chalmers,” which term shall, for purposes of this letter\nagreement (“Agreement”), include its subsidiaries), and Seawell Limited, a Bermuda company (“Parent,” which term shall, for purposes of this\nAgreement, include its subsidiaries) (each a “Party” and collectively, the “Parties”), are considering entering into discussions in order to evaluate a\npossible strategic transaction between the Parties (the “Potential Transaction”). For the purposes of the evaluation of the Potential Transaction, each\nParty may disclose and deliver to the other Party certain information regarding its properties, employees, finances, businesses, operations, assets,\nprospects and financial affairs (each Party furnishing such information being hereinafter referred to, with respect to such information, as the\n“Disclosing Party,” and each Party receiving such information being hereinafter referred to, with respect to such information, as the “Receiving\nParty”). All such information furnished by a Disclosing Party or its Representatives (as defined below) after the date hereof, whether oral, written or\nelectronic, and regardless of the manner in which it is furnished, is referred to in this Agreement as “Proprietary Information.” The term Proprietary\nInformation shall include, without limitation, all data, reports, interpretations, forecasts, records, analyses, compilations, summaries or other\ninformation containing or otherwise reflecting information concerning a Disclosing Party, its respective affiliates and subsidiaries, whether prepared\nby the Receiving Party or others, and any summaries or other documents created by the Receiving Party or others which refer to, relate to, discuss,\nconstitute, or embody all or any portion of the Proprietary Information provided to the Receiving Party by the Disclosing Party (collectively,\n“Evaluation Material”). The term Proprietary Information shall not include, however, information which (a) is or becomes generally available to the\npublic other than as a result of a disclosure by the Receiving Party or any of its Representatives in breach of this Agreement, (b) was or becomes\navailable to the Receiving Party on a nonconfidential basis prior to or after its disclosure by the Disclosing Party or its Representatives from a\nperson, other than the Disclosing Party or its Representatives, who is not known by the Receiving Party or any of its Representatives, after\nreasonable investigation, to be bound by a confidentiality agreement with the Disclosing Party or any of its Representatives, or otherwise under an\nobligation to the Disclosing Party or any of its Representatives to keep such information confidential or (c) is developed independently by the\nReceiving Party or any of its Representatives without use of or reference to Proprietary Information and without violating any of the provisions of\nthis Agreement.\n \nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by a Disclosing Party, each Party agrees (a) except as\nrequired by law, rule, applicable regulation, stock exchange rule or disclosure requirement of the Securities and Exchange Commission (collectively,\n“Law”), to keep all Proprietary Information confidential and not to disclose or reveal any Proprietary Information to any person other than directors,\nofficers and employees and those attorneys, accountants, financial advisors, consultants or other agents or advisors who are not officers or employees\n(such persons being referred to herein as “Representatives”) of the Receiving Party, who need to know the Proprietary Information for purposes of\nevaluating the Potential Transaction, and who have been informed of the terms of this Agreement, (b) not to use, and to cause its Representatives not\nto use, Proprietary Information for any purpose other than in connection with the evaluation or the consummation of the Potential Transaction and\n(c) except as required by Law, not to disclose to any person (other than those of the Receiving Party’s Representatives who are actively and directly\nparticipating in the evaluation of the Potential Transaction) any information about the Potential Transaction, or the terms or conditions or any other\nfacts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto, the status or termination thereof,\nthe fact that Proprietary Information has been made available to the Receiving Party or its Representatives or the existence or terms and conditions\nof this Agreement. Each Receiving Party agrees that any use or disclosure of any Proprietary Information or any other information concerning the\nDisclosing Party or the Potential Transaction by any of such Receiving Party’s Representatives in a manner inconsistent with this Agreement shall\nconstitute a breach of this Agreement by such Receiving Party. For purposes of this Agreement, with respect to Parent, the term “Representatives”\nshall include Parent’s potential financing sources and their respective directors, officers, employees, attorneys, accountants, consultants and other\nagents or advisors.\nIn the event that a Receiving Party or any of its Representatives is requested or legally compelled, pursuant to a subpoena, civil investigative\ndemand, regulatory demand or similar process, to disclose any Proprietary Information or any other information concerning the Disclosing Party or\nthe Potential Transaction, each Party agrees that such Receiving Party will provide the Disclosing Party with prompt notice of such request or\nrequirement in order to enable the Disclosing Party to seek an appropriate protective order or other remedy, to consult with the Receiving Party with\nrespect to the Disclosing Party taking steps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in part,\nwith the terms of this Agreement. In any such event, the Receiving Party will use its reasonable best efforts to ensure that all Proprietary Information\nand other information that is so disclosed will be accorded confidential treatment and shall furnish only that portion of the Proprietary Information\nwhich the Receiving Party is advised by counsel is legally required. If the Receiving Party or any of its Representatives is required to disclose\nProprietary Information as a matter of Law, the Receiving Party may disclose only that part of the Proprietary Information as is required by Law to\nbe disclosed (in which case, prior to such disclosure, the Receiving Party will, to the extent practicable, advise and consult with the Disclosing Party\nand its counsel as to such disclosure and the nature and wording of such disclosure), and, to the extent practical in the circumstances, the Receiving\nParty will use its reasonable best efforts to obtain confidential treatment for any Proprietary Information so disclosed.\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that they\nhave a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material\nis not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege. All Proprietary Information that is entitled to protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege and stamped and identified as such shall remain entitled to such protection under\nthese privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any Party to reveal material subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege.\nEach Receiving Party acknowledges that the Proprietary Information is and at all times remains the sole and exclusive property of the\nDisclosing Party, and the Disclosing Party has the exclusive right, title and interest to its Proprietary Information. No right or license, by implication\nor otherwise, is granted by the Disclosing Party as a result of disclosure of Proprietary Information under this Agreement.\n3\nEach Receiving Party acknowledges that neither the Disclosing Party nor any of its Representatives make any express or implied\nrepresentation or warranty as to the accuracy or completeness of any Proprietary Information, and each Receiving Party agrees that none of such\npersons shall have any liability to the Receiving Party or any of its Representatives relating to or arising from the use of any Proprietary Information\nby the Receiving Party or its Representatives or for any errors therein or omissions therefrom. Each Receiving Party also agrees that it is not entitled\nto rely on the accuracy or completeness of any Proprietary Information and that the Receiving Party shall be entitled to rely solely on such\nrepresentations and warranties regarding Proprietary Information as may be made to the Receiving Party in the definitive agreement relating to the\nPotential Transaction, if any, subject to the terms and conditions of such agreement. Each Party agrees that unless and until a definitive agreement\nregarding the Potential Transaction has been executed, neither Party nor any of their respective Representatives shall be under any obligation to the\nother Party with respect to the Potential Transaction by virtue of this Agreement or otherwise, except for the matters specifically agreed to herein.\nIf either Party hereto determines that it does not wish to proceed with the Potential Transaction, it will promptly advise the other Party of that\ndecision in writing (the “Termination Notice). In such case, the Receiving Party will promptly, upon written request by the Disclosing Party, destroy\nall copies of Proprietary Information, including Evaluation Material, in the Receiving Party’s possession or in the possession of any of the Receiving\nParty’s Representatives; provided, however, that the Receiving Party shall return all copies of Proprietary Information, other than Evaluation\nMaterial, in its possession or in the possession of any of its Representatives to the Disclosing Party if the Disclosing Party so requests, in writing,\nwithin thirty (30) days after receiving or delivering a Termination Notice; and provided further, however, that the Receiving Party and its\nRepresentatives may keep, for record keeping purposes only, one copy of the Evaluation Material (subject, in all events to the use and confidentiality\nrestrictions set forth in this Agreement). Each Party agrees that, upon written request of a Disclosing Party, an officer of the Receiving Party will\ncertify to compliance with this paragraph; and further provided that the Receiving Party may keep such copies of such Proprietary Information as is\nnecessary for the Receiving Party to comply with applicable Law. Notwithstanding the return or destruction of the Proprietary Information, each\nReceiving Party and each of its Representatives will continue to be bound by its obligations hereunder for a period of two (2) years from the date of\nany Termination Notice. In the event that no Termination Notice is delivered, then this Agreement shall automatically terminate two (2) years after\nthe date hereof.\n \n \nEach Receiving Party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of\nthe restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-\npublic information and on the communication of such information to any other person when it is reasonably foreseeable that such other person is\nlikely to purchase or sell such securities in reliance upon such information. Each Receiving Party hereby confirms that it, and its Representatives,\nwill take any action necessary to prevent the use of any information about the Disclosing Party in a way which might violate any antitrust or other\napplicable Law.\nIt is understood that the covenants of this Agreement and the Proprietary Information disclosed are special, unique and of extraordinary\ncharacter. Each Disclosing Party may be irreparably harmed by a breach of this Agreement by the Receiving Party or its Representatives, and the use\nof the Proprietary Information for the business purposes of any person other than the Disclosing Party may enable such person to compete unfairly\nwith the Disclosing Party. Without prejudice to the rights and remedies otherwise available to each of the Parties, each Party shall be entitled to seek\nequitable relief by way of injunction or otherwise if the other Party or any of its Representatives breaches or threatens to breach any of the provisions\nof this Agreement. It is further understood and agreed that no failure or delay by a Party in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder. Each Party agrees that if the Receiving Party becomes aware of any disclosure of Proprietary Information of the\nDisclosing Party in violation of the terms hereof, the Receiving Party will promptly notify the Disclosing Party and will reasonably cooperate in any\nattempt by the Disclosing Party to obtain any remedy or relief relative thereto.\nThis Agreement and all controversies arising from or relating to performance under this Agreement shall be governed by and construed in\naccordance with the laws of the State of Texas, without giving effect to principles of choice or conflict of laws. This Agreement shall not be assigned\nby operation of Law or otherwise.\nThis Agreement is solely for the benefit of the Parties, and this Agreement shall not be deemed to confer upon or give to any other third party\nany remedy, claim of liability or reimbursement, cause of action or other right.\nIf any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the remainder of the\nprovisions of this Agreement shall remain in full force and effect. The Parties shall endeavor in good faith negotiations to replace any invalid, illegal\nor unenforceable provision with a valid, legal and enforceable provision, the effect of which comes as close as possible to that of the invalid, illegal\nor unenforceable provision.\nThis Agreement contains the entire agreement between the Parties concerning the subject matter hereof, and no modification of this Agreement\nor waiver of the terms and conditions hereof shall be binding upon the Parties, unless approved in a writing signed by each of the Parties. This\nAgreement may be executed in counterparts, including by facsimile, each of which shall be an original, but all of which together shall constitute one\nand the same agreement.\n[Signature Page Follows]\n6\nPlease acknowledge your agreement to the foregoing by countersigning this Agreement in the space provided below and returning to the\nundersigned a fully executed original copy of this Agreement.\nSEAWELL LIMITED\nBy: /s/ Jorgen P. Rasmussen\nName: Jorgen P. Rasmussen\nTitle: Executive Chairman\nAccepted and Agreed\nas of the date first written\nabove:\nALLIS-CHALMERS ENERGY INC.\nBy: /s/ Munawar H. Hidayatallah\nName: Munawar H. Hidayatallah\nTitle:  Chairman and CEO\n. LOGO\nJune 30, 2010\nCONFIDENTIAL\nSeawell Limited\n14-Par-la-Ville Road\nHamilton HMGX\nBermuda\nRegistration No. 40612\nAttention:Jorgen Rasmussen, Executive Chairman\nRe: Amendment to Confidentiality Agreement dated as of June 23, 2010.\nGentlemen:\nReference is made hereby to the Confidentiality Agreement dated as of June 23, 2010 (the “Agreement”) by and between Allis-Chalmers\nEnergy Inc. (“Allis-Chalmers”) and Seawell Limited (“Seawell” and together with Allis-Chalmers, the “Parties”). This letter shall serve to evidence\nthe agreement of the Parties to amend the Agreement, as of the date first set forth above, to insert the following two paragraphs at the end of the\nAgreement.\n“Each Party represents and warrants that as of the date hereof, neither it nor any of its subsidiaries beneficially owns any securities of the\nother Party. Each Party agrees that, until the earlier of (x) one year from the date of this Agreement and (y) the date on which a Fundamental\nChange Event (as defined below) with respect to the other Party occurs, neither it nor any of its affiliates will engage in any of the following\nactions, unless and until such action shall hereafter have been specifically invited by the board of directors (or similar managing body) of the\nother Party: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities, securities\nconvertible into voting securities or any direct or indirect rights to acquire any voting securities of the other Party or any subsidiary thereof or\nany assets of the other Party or any subsidiary or division thereof, (ii) make, or in any way participate in, directly or indirectly, any\n“solicitation” of “proxies” (as such terms are used in the rules of the United States Securities and Exchange Commission) to vote, or seek to\nadvise or influence any person or entity with respect to the voting of, any voting securities of the other Party, (iii) make any public\nannouncement with respect to, or submit a proposal for, or offer of (with or without conditions) any merger, consolidation, business\ncombination, tender or exchange offer, restructuring, recapitalization or other extraordinary transaction of or involving the other Party or any\nof its subsidiaries or their securities or assets, (iv) form, join or in any way participate in a “group” (as defined in Section 13(4)(3) of the\nSecurities Exchange Act of 1934, as amended, and regulations thereunder) in connection with any voting securities of the other Party,\n(v) otherwise act, alone or in concert with others, to seek to control or influence the Board of Directors of the other Party, (vi) make any\nrequest or proposal to amend, waive or terminate any provision of this paragraph if such action would reasonably be likely to require public\ndisclosure or (vii) directly or indirectly publicly announce an intention to do, or enter into any arrangement or understanding with others to do,\nany of the actions\nSeawell Limited\nJune 30, 2010\nPage 2\nrestricted or prohibited under clauses (i) through (vi) of this paragraph, or take any action that is reasonable likely to result in the other Party or\nany of its affiliates having to make a public announcement regarding any of the matters referred to in clauses (i) through (vi) of this paragraph.\nFor purposes of this Agreement, a “Fundamental Change Event” means, with respect to a Party, (i) any third party commencing, or publicly\nannouncing its intention to commence, a tender or exchange offer which, if consummated, would give such third party ownership of 50% or\nmore of the outstanding voting securities of such Party; (ii) such Party or any of its subsidiaries entering into a binding definitive agreement\nwith a third party to effect (x) a merger or other business combination or transaction pursuant to which, if consummated, the outstanding shares\nof common stock of such Party immediately prior to such merger or other business combination or transaction would represent less than 50%\nof the outstanding voting power of such Party or the resulting entity immediately following such merger or other business combination or\ntransaction or (y) a sale of all or substantially all of the assets of such Party and its subsidiaries on a consolidated basis; (iii) any third party\npublicly announcing its intention to make a proposal providing for a merger, consolidation, dissolution, recapitalization or other business\ncombination involving such Party or any of its subsidiaries (or such Party shall have made a public announcement with respect to its receipt of\nsuch a proposal); (iv) such Party commencing any voluntary case, proceeding or other action (x) under any existing or future law of any\njurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors or (y) seeking appointment of a\nreceiver, trustee, assignee, custodian, conservator or other similar official for it or for all or any substantial portion of its assets; or (v) the\ncommencement against such Party of any case, proceeding or other action (x) under any existing or future law of any jurisdiction, domestic or\nforeign, relating to bankruptcy, insolvency, reorganization or relief of debtors or (y) seeking appointment of a receiver, trustee, assignee,\ncustodian, conservator or other similar official for it or for all or any substantial portion of its assets that (1) results in the entry of an order for\nrelief or any such adjudication or appointment or (2) remains undismissed, undischarged or unbonded for a period of 60 days; provided, that\nfor purposes of this sentence, the term “Party” shall mean Allis-Chalmers or Seawell, as the case may be, and shall not include any subsidiary\nof such person. Notwithstanding anything in this Agreement to the contrary, for purposes of this paragraph neither Seadrill Ltd nor any of its\naffiliates (other than Seawell, its subsidiaries and any affiliate of Seadrill Ltd who is an officer or director of Seawell or any of its subsidiaries\nand is acting in such capacity) shall constitute an affiliate of Seawell.\nTo induce the Parties to proceed with their evaluation of a Potential Transaction, the Parties agree that during the Exclusivity Period\ndescribed below, they will not, directly or indirectly, conduct any negotiations with, or solicit any offers from, any third party for the\nacquisition of any of their respective outstanding capital stock, the acquisition of any material portion of their respective assets or properties, or\nfor the merger or consolidation of either of them or their respective subsidiaries; provided, however that the foregoing shall not restrict Seawell\nfrom conducting any such negotiations with, or soliciting any such offers from, Seadrill Ltd or any of its affiliates. The “Exclusivity Period”\nshall be the period beginning on the date of execution of this Agreement by the Parties and ending on the earlier of (i) the execution of a\ndefinitive agreement regarding the Potential Transaction and (ii) August 3, 2010. The Parties hereby acknowledge and agree that (x) Allis-\nChalmers is in negotiations to purchase all of the outstanding capital stock of American Well Control, Inc., (y) Seawell is pursuing an\nacquisition of Rig Inspection Services and (z) Seawell is negotiating a joint venture with IKM Elektro AS, and none of such transactions shall\nbe subject to the prohibitions of this paragraph.\nExcept as expressly provided herein, the Agreement shall remain in full force and effect.\nThis letter agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute the\nsame agreement.\nSeawell Limited\nJune 30, 2010\nPage 3\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this letter agreement, which will constitute\nour agreement with respect to the matters set forth herein.\n(Remainder of page left intentionally blank)\nAgreed to this day of July 2010: Seawell Limited\nBy: /s/ Jorgen P. Rasmussen\nName: Jorgen P. Rasmsussun\nTitle:  Executive Chairman\nSeadrill Limited\nBy: /s/ Alf Thorkildsen\nName: Alf Thorkildsen\nTitle:\nVery truly yours,\nAllis-Chalmers Energy Inc.\n/s/ Munawar H. Hidayatallah\nMunawar H. Hidayatallah\nChief Executive Officer and Chairman\nSeawell Limited\n14-Par-la-Ville Road\nHamilton HMGX\nBermuda\nRegistration No. 40612\nAugust 3, 2010\nCONFIDENTIAL\nAllis-Chalmers Energy Inc.\n5075 Westheimer, Suite 890\nHouston, Texas 77056\nAttention: Munawar H. Hidayatallah, Chief Executive Officer and Chairman\nRe: Amendment to Confidentiality Agreement dated as of June 23, 2010, as amended.\nGentlemen:\nReference is made hereby to the Confidentiality Agreement dated as of June 23, 2010, as amended as of June 30, 2010 (the “Agreement”), by\nand between Allis-Chalmers Energy Inc. (“Allis-Chalmers”) and Seawell Limited (“Seawell” and together with Allis-Chalmers, the “Parties”). This\nletter shall serve to evidence the agreement of the Parties to amend the Agreement, as of the date first set forth above, as follows: the reference to\n“August 3, 2010” in the last paragraph of the Agreement is hereby amended to read “August 10, 2010”.\nExcept as expressly provided herein, the Agreement shall remain in full force and effect. This letter agreement may be executed in\ncounterparts, each of which shall be deemed to be an original, but both of which shall constitute the same agreement.\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this letter agreement, which will constitute\nour agreement with respect to the matters set forth herein.\n(Remainder of page left intentionally blank)\nAgreed to this day of August 2010:\nAllis-Chalmers Energy Inc.\nBy: /s/ Munawar H. Hidayatallah Munawar H. Hidayatallah\nChief Executive Officer and Chairman\nVery truly yours,\nSeawell Limited\n/s/ Jorgen Rasmussen\nJorgen Rasmussen\nChairman	EX-10.2 7 dex102.htm CONFIDENTIALITY AGREEMENT\nExhibit 10.2\nSeawell Limited\n14-Par-laVille Road\nHamilton HMGX\nBermuda\nRegistration no. 40612\nCONFIDENTIAL\nJune 23, 2010\nAllis-Chalmers Energy Inc.\nAttn.: Mr. Munawar H. Hidayatallah\nChairman and Chief Executive Officer\n5075 Westheimer, Suite 890\nHouston, Texas 77056\nRe: Confidentiality. Agreement\nLadies and Gentlemen:\nAs we have discussed, Allis-Chalmers Energy Inc., a Delaware corporation ("Allis-Chalmers," which term shall, for purposes of this letter\nagreement ("Agreement"), include its subsidiaries), and Seawell Limited, a Bermuda company ("Parent," which term shall, for purposes of this\nAgreement, include its subsidiaries) (each a "Party." and collectively, the "Parties"), are considering entering into discussions in order to evaluate\na\npossible strategic transaction between the Parties (the "Potential Transaction"). For the purposes of the evaluation of the Potential Transaction,\neach\nParty\nmay\ndisclose\nand\ndeliver\nto\nthe\nother\nParty\ncertain\ninformation\nregarding\nits\nproperties,\nemployees,\nfinances,\nbusinesses,\noperations,\nassets,\nprospects and financial affairs (each Party furnishing such information being hereinafter referred to, with respect to such information, as\nthe\n"DisclosingParty, and each Party receiving such information being hereinafter referred to, with respect to such information, as the "Receiving\nParty."). All such information furnished by a Disclosing Party or its Representatives (as defined below) after the date hereof, whether oral, written or\nelectronic, and regardless of the manner in which it is furnished, is referred to in this Agreement as "Proprietary Information." The term Proprietary\nInformation shall include, without limitation, all data, reports, interpretations, forecasts, records, analyses, compilations, summaries or other\ninformation containing or otherwise reflecting information concerning a Disclosing Party, its respective affiliates and subsidiaries, whether prepared\nby the Receiving Party or others, and any summaries or other documents created by the Receiving Party or others which refer to, relate to, discuss,\nconstitute, or embody all or any portion of the Proprietary Information provided to the Receiving Party by the Disclosing Party (collectively,\n"Evaluation Material"). The term Proprietary Information shall not include, however, information which (a) is or becomes generally available to\nthe\npublic other than as a result of a disclosure by the Receiving Party or any of its Representatives in breach of this Agreement, (b) was or becomes\navailable to the Receiving Party on a nonconfidential basis prior to or after its disclosure by the Disclosing Party or its Representatives from\na\nperson, other than the Disclosing Party or its Representatives, who is not known by the Receiving Party or any of its Representatives, after\nreasonable investigation, to be bound by a confidentiality agreement with the Disclosing Party or any of its Representatives, or otherwise under an\nobligation to the Disclosing Party or any of its Representatives to keep such information confidential or (c) is developed independently by the\nReceiving Party or any of its Representatives without use of or reference to Proprietary Information and without violating any of the provisions\nof\nthis Agreement.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by a Disclosing Party, each Party agrees (a) except as\nrequired by law, rule, applicable regulation, stock exchange rule or disclosure requirement of the Securities and Exchange Commission (collectively,\n"Law"), to keep all Proprietary Information confidential and not to disclose or reveal any Proprietary Information to any person other than directors,\nofficers and employees and those attorneys, accountants, financial advisors, consultants or other agents or advisors who are not officers or employees\n(such persons being referred to herein as "Representatives") of the Receiving Party, who need to know the Proprietary Information for purposes of\nevaluating the Potential Transaction, and who have been informed of the terms of this Agreement, (b) not to use, and to cause its Representatives not\nto use, Proprietary Information for any purpose other than in connection with the evaluation or the consummation of the Potential Transaction and\n(c)\nexcept as required by Law, not to disclose to any person (other than those of the Receiving Party's Representatives who are actively and directly\nparticipating in the evaluation of the Potential Transaction) any information about the Potential Transaction, or the terms or conditions or any other\nfacts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto, the status or termination thereof,\nthe fact that Proprietary Information has been made available to the Receiving Party or its Representatives or the existence or terms and conditions\nof this Agreement. Each Receiving Party agrees that any use or disclosure of any Proprietary Information or any other information concerning the\nDisclosing Party or the Potential Transaction by any of such Receiving Party's Representatives in a manner inconsistent with this Agreement shall\nconstitute a breach of this Agreement by such Receiving Party. For purposes of this Agreement, with respect to Parent, the term "Representatives"\nshall include Parent's potential financing sources and their respective directors, officers, employees, attorneys, accountants, consultants and other\nagents or advisors.\n2\nIn the event that a Receiving Party or any of its Representatives is requested or legally compelled, pursuant to a subpoena, civil investigative\ndemand, regulatory demand or similar process, to disclose any Proprietary Information or any other information concerning the Disclosing Party or\nthe Potential Transaction, each Party agrees that such Receiving Party will provide the Disclosing Party with prompt notice of such request or\nrequirement in order to enable the Disclosing Party to seek an appropriate protective order or other remedy, to consult with the Receiving Party with\nrespect to the Disclosing Party taking steps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in part,\nwith the terms of this Agreement. In any such event, the Receiving Party will use its reasonable best efforts to ensure that all Proprietary Information\nand other information that is so disclosed will be accorded confidential treatment and shall furnish only that portion of the Proprietary Information\nwhich the Receiving Party is advised by counsel is legally required. If the Receiving Party or any of its Representatives is required to disclose\nProprietary Information as a matter of Law, the Receiving Party may disclose only that part of the Proprietary Information as is required by Law\nto\nbe disclosed (in which case, prior to such disclosure, the Receiving Party will, to the extent practicable, advise and consult with the Disclosing Party\nand its counsel as to such disclosure and the nature and wording of such disclosure), and, to the extent practical in the circumstances, the Receiving\nParty will use its reasonable best efforts to obtain confidential treatment for any Proprietary Information so disclosed.\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that they\nhave a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material\nis not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege. All Proprietary Information that is entitled to protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege and stamped and identified as such shall remain entitled to such protection under\nthese privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any Party to reveal material subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege.\nEach Receiving Party acknowledges that the Proprietary Information is and at all times remains the sole and exclusive property of the\nDisclosing Party, and the Disclosing Party has the exclusive right, title and interest to its Proprietary Information. No right or license, by implication\nor otherwise, is granted by the Disclosing Party as a result of disclosure of Proprietary Information under this Agreement.\n3\nEach Receiving Party acknowledges that neither the Disclosing Party nor any of its Representatives make any express or implied\nrepresentation or warranty as to the accuracy or completeness of any Proprietary Information, and each Receiving Party agrees that none of such\npersons shall have any liability to the Receiving Party or any of its Representatives relating to or arising from the use of any Proprietary Information\nby the Receiving Party or its Representatives or for any errors therein or omissions therefrom. Each Receiving Party also agrees that it is not entitled\nto rely on the accuracy or completeness of any Proprietary Information and that the Receiving Party shall be entitled to rely solely on such\nrepresentations and warranties regarding Proprietary Information as may be made to the Receiving Party in the definitive agreement relating to the\nPotential Transaction, if any, subject to the terms and conditions of such agreement. Each Party agrees that unless and until a definitive agreement\nregarding the Potential Transaction has been executed, neither Party nor any of their respective Representatives shall be under any obligation to the\nother Party with respect to the Potential Transaction by virtue of this Agreement or otherwise, except for the matters specifically agreed to herein.\nIf either Party hereto determines that it does not wish to proceed with the Potential Transaction, it will promptly advise the other Party of that\ndecision in writing (the "Termination Notice"). In such case, the Receiving Party will promptly, upon written request by the Disclosing Party, destroy\nall\ncopies of Proprietary Information, including Evaluation Material, in the Receiving Party's possession or in the possession of any of the Receiving\nParty's Representatives; provided, however, that the Receiving Party shall return all copies of Proprietary Information, other than Evaluation\nMaterial, in its possession or in the possession of any of its Representatives to the Disclosing Party if the Disclosing Party so requests, in writing,\nwithin thirty (30) days after receiving or delivering a Termination Notice; and provided further, however, that the Receiving Party and its\nRepresentatives may keep, for record keeping purposes only, one copy of the Evaluation Material (subject, in all events to the use and confidentiality\nrestrictions set forth in this Agreement). Each Party agrees that, upon written request of a Disclosing Party, an officer of the Receiving Party\nwill\ncertify to compliance with this paragraph; and further provided that the Receiving Party may keep such copies of such Proprietary Information as is\nnecessary for the Receiving Party to comply with applicable Law. Notwithstanding the return or destruction of the Proprietary Information, each\nReceiving Party and each of its Representatives will continue to be bound by its obligations hereunder for a period of two (2) years from the date of\nany Termination Notice. In the event that no Termination Notice is delivered, then this Agreement shall automatically terminate two (2) years after\nthe date hereof.\nEach Receiving Party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement,\nof\nthe restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-\npublic information and on the communication of such information to any other person when it is reasonably foreseeable that such other person\nis\nlikely to purchase or sell such securities in reliance upon such information. Each Receiving Party hereby confirms that it, and its Representatives,\nwill take any action necessary to prevent the use of any information about the Disclosing Party in a way which might violate any antitrust or other\napplicable Law.\n4\nIt is understood that the covenants of this Agreement and the Proprietary Information disclosed are special, unique and of extraordinary\ncharacter. Each Disclosing Party may be irreparably harmed by a breach of this Agreement by the Receiving Party or its Representatives, and the use\nof the Proprietary Information for the business purposes of any person other than the Disclosing Party may enable such person to compete unfairly\nwith the Disclosing Party. Without prejudice to the rights and remedies otherwise available to each of the Parties, each Party shall be entitled to seek\nequitable relief by way of injunction or otherwise if the other Party or any of its Representatives breaches or threatens to breach any of the provisions\nof\nthis Agreement. It is further understood and agreed that no failure or delay by a Party in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder. Each Party agrees that if the Receiving Party becomes aware of any disclosure of Proprietary Information of the\nDisclosing Party in violation of the terms hereof, the Receiving Party will promptly notify the Disclosing Party and will reasonably cooperate in any\nattempt by the Disclosing Party to obtain any remedy or relief relative thereto.\nThis Agreement and all controversies arising from or relating to performance under this Agreement shall be governed by and construed in\naccordance with the laws of the State of Texas, without giving effect to principles of choice or conflict of laws. This Agreement shall not be assigned\nby operation of Law or otherwise.\nThis Agreement is solely for the benefit of the Parties, and this Agreement shall not be deemed to confer upon or give to any other third party\nany remedy, claim of liability or reimbursement, cause of action or other right.\nIf any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the remainder of the\nprovisions of this Agreement shall remain in full force and effect. The Parties shall endeavor in good faith negotiations to replace any invalid, illegal\nor unenforceable provision with a valid, legal and enforceable provision, the effect of which comes as close as possible to that of the invalid, illegal\nor unenforceable provision.\n5\nThis Agreement contains the entire agreement between the Parties concerning the subject matter hereof, and no modification of this Agreement\nor waiver of the terms and conditions hereof shall be binding upon the Parties, unless approved in a writing signed by each of the Parties. This\nAgreement may be executed in counterparts, including by facsimile, each of which shall be an original, but all of which together shall constitute one\nand the same agreement.\n[Signature Page Follows]\n6\nPlease acknowledge your agreement to the foregoing by countersigning this Agreement in the space provided below and returning to the\nundersigned a fully executed original copy of this Agreement.\nSEAWELL LIMITED\nBy:\n/s/ Jorgen P. Rasmussen\nName: Jorgen P. Rasmussen\nTitle: Executive Chairman\nAccepted and Agreed\nas of the date first written\nabove:\nALLIS-CHALMERS ENERGY INC.\nBy:\n/s/ Munawar H. Hidayatallah\nName: Munawar H. Hidayatallah\nTitle:\nChairman and CEO\n7\nLOGO\nJune 30, 2010\nCONFIDENTIAL\nSeawell Limited\n14-Par-la-Ville Road\nHamilton HMGX\nBermuda\nRegistration No. 40612\nAttention:Jorger Rasmussen, Executive Chairman\nRe: Amendment to Confidentiality Agreement dated as of June 23, 2010.\nGentlemen:\nReference is made hereby to the Confidentiality Agreement dated as of June 23, 2010 (the "Agreement") by and between Allis-Chalmers\nEnergy Inc. ("Allis-Chalmers") and Seawell Limited ("Seawell" and together with Allis-Chalmers, the "Parties"). This letter shall serve to evidence\nthe agreement of the Parties to amend the Agreement, as of the date first set forth above, to insert the following two paragraphs at the end of the\nAgreement.\n"Each Party represents and warrants that as of the date hereof, neither it nor any of its subsidiaries beneficially owns any securities of the\nother Party. Each Party agrees that, until the earlier of (x) one year from the date of this Agreement and (y) the date on which a Fundamental\nChange Event (as defined below) with respect to the other Party occurs, neither it nor any of its affiliates will engage in any of the following\nactions, unless and until such action shall hereafter have been specifically invited by the board of directors (or similar managing body) of the\nother Party: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities, securities\nconvertible into voting securities or any direct or indirect rights to acquire any voting securities of the other Party or any subsidiary thereof or\nany assets of the other Party or any subsidiary or division thereof, (ii) make, or in any way participate in, directly or indirectly, any\n"solicitation" of "proxies" (as such terms are used in the rules of the United States Securities and Exchange Commission) to vote, or seek to\nadvise or influence any person or entity with respect to the voting of, any voting securities of the other Party, (iii) make any public\nannouncement with respect to, or submit a proposal for, or offer of (with or without conditions) any merger, consolidation, business\ncombination, tender or exchange offer, restructuring, recapitalization or other extraordinary transaction of or involving the other Party or any\nof its subsidiaries or their securities or assets, (iv) form, join or in any way participate in a "group" (as defined in Section 13(4)(3) of the\nSecurities Exchange Act of 1934, as amended, and regulations thereunder) in connection with any voting securities of the other Party,\n(v) otherwise act, alone or in concert with others, to seek to control or influence the Board of Directors of the other Party, (vi) make any\nrequest or proposal to amend, waive or terminate any provision of this paragraph if such action would reasonably be likely to require public\ndisclosure or (vii) directly or indirectly publicly announce an intention to do, or enter into any arrangement or understanding with others to do,\nany of the actions\nSeawell Limited\nJune 30, 2010\nPage 2\nrestricted or prohibited under clauses (i) through (vi) of this paragraph, or take any action that is reasonable likely to result in the other Party or\nany\nof\nits\naffiliates\nhaving\nto\nmake\na\npublic\nannouncement\nregarding\nany\nof\nthe\nmatters\nreferred\nto\nin\nclauses\n(i)\nthrough\n(vi)\nof\nthis\nparagraph.\nFor purposes of this Agreement, a "Fundamenta Change Event" means, with respect to a Party, (i) any third party commencing, or publicly\nannouncing its intention to commence, a tender or exchange offer which, if consummated, would give such third party ownership of 50% or\nmore of the outstanding voting securities of such Party; (ii) such Party or any of its subsidiaries entering into a binding definitive agreement\nwith a third party to effect (x) a merger or other business combination or transaction pursuant to which, if consummated, the outstanding shares\nof\ncommon stock of such Party immediately prior to such merger or other business combination or transaction would represent less than 50%\nof the outstanding voting power of such Party or the resulting entity immediately following such merger or other business combination or\ntransaction or (y) a sale of all or substantially all of the assets of such Party and its subsidiaries on a consolidated basis; (iii) any third party\npublicly announcing its intention to make a proposal providing for a merger, consolidation, dissolution, recapitalization or other business\ncombination involving such Party or any of its subsidiaries (or such Party shall have made a public announcement with respect to its receipt of\nsuch a proposal); (iv) such Party commencing any voluntary case, proceeding or other action (x) under any existing or future law of any\njurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors or (y) seeking appointment of\na\nreceiver, trustee, assignee, custodian, conservator or other similar official for it or for all or any substantial portion of its assets; or (v) the\ncommencement against such Party of any case, proceeding or other action (x) under any existing or future law of any jurisdiction, domestic or\nforeign, relating to bankruptcy, insolvency, reorganization or relief of debtors or (y) seeking appointment of a receiver, trustee, assignee,\ncustodian, conservator or other similar official for it or for all or any substantial portion of its assets that (1) results in the entry of an order for\nrelief or any such adjudication or appointment or (2) remains undismissed, undischarged or unbonded for a period of 60 days; provided, that\nfor purposes of this sentence, the term "Party" shall mean Allis-Chalmers or Seawell, as the case may be, and shall not include any subsidiary\nof such person. Notwithstanding anything in this Agreement to the contrary, for purposes of this paragraph neither Seadrill Ltd nor any of its\naffiliates (other than Seawell, its subsidiaries and any affiliate of Seadrill Ltd who is an officer or director of Seawell or any of its subsidiaries\nand is acting in such capacity) shall constitute an affiliate of Seawell.\nTo induce the Parties to proceed with their evaluation of a Potential Transaction, the Parties agree that during the Exclusivity Period\ndescribed below, they will not, directly or indirectly, conduct any negotiations with, or solicit any offers from, any third party for the\nacquisition of any of their respective outstanding capital stock, the acquisition of any material portion of their respective assets or properties, or\nfor the merger or consolidation of either of them or their respective subsidiaries; provided, however that the foregoing shall not restrict Seawell\nfrom conducting any such negotiations with, or soliciting any such offers from, Seadrill Ltd or any of its affiliates. The "Exclusivity Period"\nshall be the period beginning on the date of execution of this Agreement by the Parties and ending on the earlier of (i) the execution of a\ndefinitive agreement regarding the Potential Transaction and (ii) August 3, 2010. The Parties hereby acknowledge and agree that (x) Allis-\nChalmers is in negotiations to purchase all of the outstanding capital stock of American Well Control, Inc., (y) Seawell is pursuing an\nacquisition of Rig Inspection Services and (z) Seawell is negotiating a joint venture with IKM Elektro AS, and none of such transactions shall\nbe subject to the prohibitions of this paragraph.\nExcept as expressly provided herein, the Agreement shall remain in full force and effect.\nThis letter agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute the\nsame agreement.\nSeawell Limited\nJune 30, 2010\nPage 3\nIf you are in agreement with the foregoing, please SO indicate by signing and returning one copy of this letter agreement, which will constitute\nour agreement with respect to the matters set forth herein.\n(Remainder of page left intentionally blank)\nVery truly yours,\nAllis-Chalmers Energy Inc.\n/s/ Munawar H. Hidayatallah\nMunawar H. Hidayatallah\nChief Executive Officer and Chairman\nAgreed to this\nday of July 2010:\nSeawell Limited\nBy:\n/s/ Jorgen P. Rasmussen\nName: Jorgen P. Rasmsussun\nTitle: Executive Chairman\nSeadrill Limited\nBy:\n/s/ Alf Thorkildsen\nName: Alf Thorkildsen\nTitle:\nSeawell Limited\n14-Par-la-Ville Road\nHamilton HMGX\nBermuda\nRegistration No. 40612\nAugust 3, 2010\nCONFIDENTIAL\nAllis-Chalmers Energy Inc.\n5075 Westheimer, Suite 890\nHouston, Texas 77056\nAttention: Munawar H. Hidayatallah, Chief Executive Officer and Chairman\nRe: Amendment to Confidentiality. Agreement dated as of June 23, 2010, as amended.\nGentlemen:\nReference is made hereby to the Confidentiality Agreement dated as of June 23, 2010, as amended as of June 30, 2010 (the "Agreement"), by\nand between Allis-Chalmers Energy Inc. ("Allis-Chalmers") and Seawell Limited ("Seawell" and together with Allis-Chalmers, the "Parties"). This\nletter shall serve to evidence the agreement of the Parties to amend the Agreement, as of the date first set forth above, as follows: the reference to\n"August 3, 2010" in the last paragraph of the Agreement is hereby amended to read "August 10, 2010".\nExcept as expressly provided herein, the Agreement shall remain in full force and effect. This letter agreement may be executed in\ncounterparts, each of which shall be deemed to be an original, but both of which shall constitute the same agreement.\nIf you are in agreement with the foregoing, please SO indicate by signing and returning one copy of this letter agreement, which will constitute\nour agreement with respect to the matters set forth herein.\n(Remainder of page left intentionally blank)\nVery truly yours,\nSeawell Limited\n/s/ Jorgen Rasmussen\nJorgen Rasmussen\nChairman\nAgreed to this day of August 2010:\nAllis-Chalmers Energy Inc.\nBy: /s/ Munawar H. Hidayatallah\nMunawar H. Hidayatallah\nChief Executive Officer and Chairman	EX-10.2 7 dex102.htm CONFIDENTIALITY AGREEMENT\nExhibit 10.2\nSeawell Limited\n14-Par-laVille Road\nHamilton HMGX\nBermuda\nRegistration no. 40612\nCONFIDENTIAL\nJune 23, 2010\nAllis-Chalmers Energy Inc.\nAttn.: Mr. Munawar H. Hidayatallah\nChairman and Chief Executive Officer\n5075 Westheimer, Suite 890\nHouston, Texas 77056\nRe: Confidentiality Agreement\nLadies and Gentlemen:\nAs we have discussed, Allis-Chalmers Energy Inc., a Delaware corporation (“Allis-Chalmers,” which term shall, for purposes of this letter\nagreement (“Agreement”), include its subsidiaries), and Seawell Limited, a Bermuda company (“Parent,” which term shall, for purposes of this\nAgreement, include its subsidiaries) (each a “Party” and collectively, the “Parties”), are considering entering into discussions in order to evaluate a\npossible strategic transaction between the Parties (the “Potential Transaction”). For the purposes of the evaluation of the Potential Transaction, each\nParty may disclose and deliver to the other Party certain information regarding its properties, employees, finances, businesses, operations, assets,\nprospects and financial affairs (each Party furnishing such information being hereinafter referred to, with respect to such information, as the\n“Disclosing Party,” and each Party receiving such information being hereinafter referred to, with respect to such information, as the “Receiving\nParty”). All such information furnished by a Disclosing Party or its Representatives (as defined below) after the date hereof, whether oral, written or\nelectronic, and regardless of the manner in which it is furnished, is referred to in this Agreement as “Proprietary Information.” The term Proprietary\nInformation shall include, without limitation, all data, reports, interpretations, forecasts, records, analyses, compilations, summaries or other\ninformation containing or otherwise reflecting information concerning a Disclosing Party, its respective affiliates and subsidiaries, whether prepared\nby the Receiving Party or others, and any summaries or other documents created by the Receiving Party or others which refer to, relate to, discuss,\nconstitute, or embody all or any portion of the Proprietary Information provided to the Receiving Party by the Disclosing Party (collectively,\n“Evaluation Material”). The term Proprietary Information shall not include, however, information which (a) is or becomes generally available to the\npublic other than as a result of a disclosure by the Receiving Party or any of its Representatives in breach of this Agreement, (b) was or becomes\navailable to the Receiving Party on a nonconfidential basis prior to or after its disclosure by the Disclosing Party or its Representatives from a\nperson, other than the Disclosing Party or its Representatives, who is not known by the Receiving Party or any of its Representatives, after\nreasonable investigation, to be bound by a confidentiality agreement with the Disclosing Party or any of its Representatives, or otherwise under an\nobligation to the Disclosing Party or any of its Representatives to keep such information confidential or (c) is developed independently by the\nReceiving Party or any of its Representatives without use of or reference to Proprietary Information and without violating any of the provisions of\nthis Agreement.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by a Disclosing Party, each Party agrees (a) except as\nrequired by law, rule, applicable regulation, stock exchange rule or disclosure requirement of the Securities and Exchange Commission (collectively,\n“Law”), to keep all Proprietary Information confidential and not to disclose or reveal any Proprietary Information to any person other than directors,\nofficers and employees and those attorneys, accountants, financial advisors, consultants or other agents or advisors who are not officers or employees\n(such persons being referred to herein as “Representatives”) of the Receiving Party, who need to know the Proprietary Information for purposes of\nevaluating the Potential Transaction, and who have been informed of the terms of this Agreement, (b) not to use, and to cause its Representatives not\nto use, Proprietary Information for any purpose other than in connection with the evaluation or the consummation of the Potential Transaction and\n(c) except as required by Law, not to disclose to any person (other than those of the Receiving Party’s Representatives who are actively and directly\nparticipating in the evaluation of the Potential Transaction) any information about the Potential Transaction, or the terms or conditions or any other\nfacts relating thereto, including, without limitation, the fact that discussions are taking place with respect thereto, the status or termination thereof,\nthe fact that Proprietary Information has been made available to the Receiving Party or its Representatives or the existence or terms and conditions\nof this Agreement. Each Receiving Party agrees that any use or disclosure of any Proprietary Information or any other information concerning the\nDisclosing Party or the Potential Transaction by any of such Receiving Party’s Representatives in a manner inconsistent with this Agreement shall\nconstitute a breach of this Agreement by such Receiving Party. For purposes of this Agreement, with respect to Parent, the term “Representatives”\nshall include Parent’s potential financing sources and their respective directors, officers, employees, attorneys, accountants, consultants and other\nagents or advisors.\n2\nIn the event that a Receiving Party or any of its Representatives is requested or legally compelled, pursuant to a subpoena, civil investigative\ndemand, regulatory demand or similar process, to disclose any Proprietary Information or any other information concerning the Disclosing Party or\nthe Potential Transaction, each Party agrees that such Receiving Party will provide the Disclosing Party with prompt notice of such request or\nrequirement in order to enable the Disclosing Party to seek an appropriate protective order or other remedy, to consult with the Receiving Party with\nrespect to the Disclosing Party taking steps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in part,\nwith the terms of this Agreement. In any such event, the Receiving Party will use its reasonable best efforts to ensure that all Proprietary Information\nand other information that is so disclosed will be accorded confidential treatment and shall furnish only that portion of the Proprietary Information\nwhich the Receiving Party is advised by counsel is legally required. If the Receiving Party or any of its Representatives is required to disclose\nProprietary Information as a matter of Law, the Receiving Party may disclose only that part of the Proprietary Information as is required by Law to\nbe disclosed (in which case, prior to such disclosure, the Receiving Party will, to the extent practicable, advise and consult with the Disclosing Party\nand its counsel as to such disclosure and the nature and wording of such disclosure), and, to the extent practical in the circumstances, the Receiving\nParty will use its reasonable best efforts to obtain confidential treatment for any Proprietary Information so disclosed.\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that they\nhave a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material\nis not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege. All Proprietary Information that is entitled to protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege and stamped and identified as such shall remain entitled to such protection under\nthese privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any Party to reveal material subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege.\nEach Receiving Party acknowledges that the Proprietary Information is and at all times remains the sole and exclusive property of the\nDisclosing Party, and the Disclosing Party has the exclusive right, title and interest to its Proprietary Information. No right or license, by implication\nor otherwise, is granted by the Disclosing Party as a result of disclosure of Proprietary Information under this Agreement.\n3\nEach Receiving Party acknowledges that neither the Disclosing Party nor any of its Representatives make any express or implied\nrepresentation or warranty as to the accuracy or completeness of any Proprietary Information, and each Receiving Party agrees that none of such\npersons shall have any liability to the Receiving Party or any of its Representatives relating to or arising from the use of any Proprietary Information\nby the Receiving Party or its Representatives or for any errors therein or omissions therefrom. Each Receiving Party also agrees that it is not entitled\nto rely on the accuracy or completeness of any Proprietary Information and that the Receiving Party shall be entitled to rely solely on such\nrepresentations and warranties regarding Proprietary Information as may be made to the Receiving Party in the definitive agreement relating to the\nPotential Transaction, if any, subject to the terms and conditions of such agreement. Each Party agrees that unless and until a definitive agreement\nregarding the Potential Transaction has been executed, neither Party nor any of their respective Representatives shall be under any obligation to the\nother Party with respect to the Potential Transaction by virtue of this Agreement or otherwise, except for the matters specifically agreed to herein.\nIf either Party hereto determines that it does not wish to proceed with the Potential Transaction, it will promptly advise the other Party of that\ndecision in writing (the “Termination Notice”). In such case, the Receiving Party will promptly, upon written request by the Disclosing Party, destroy\nall copies of Proprietary Information, including Evaluation Material, in the Receiving Party’s possession or in the possession of any of the Receiving\nParty’s Representatives; provided, however, that the Receiving Party shall return all copies of Proprietary Information, other than Evaluation\nMaterial, in its possession or in the possession of any of its Representatives to the Disclosing Party if the Disclosing Party so requests, in writing,\nwithin thirty (30) days after receiving or delivering a Termination Notice; and provided further, however, that the Receiving Party and its\nRepresentatives may keep, for record keeping purposes only, one copy of the Evaluation Material (subject, in all events to the use and confidentiality\nrestrictions set forth in this Agreement). Each Party agrees that, upon written request of a Disclosing Party, an officer of the Receiving Party will\ncertify to compliance with this paragraph; and further provided that the Receiving Party may keep such copies of such Proprietary Information as is\nnecessary for the Receiving Party to comply with applicable Law. Notwithstanding the return or destruction of the Proprietary Information, each\nReceiving Party and each of its Representatives will continue to be bound by its obligations hereunder for a period of two (2) years from the date of\nany Termination Notice. In the event that no Termination Notice is delivered, then this Agreement shall automatically terminate two (2) years after\nthe date hereof.\nEach Receiving Party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of\nthe restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-\npublic information and on the communication of such information to any other person when it is reasonably foreseeable that such other person is\nlikely to purchase or sell such securities in reliance upon such information. Each Receiving Party hereby confirms that it, and its Representatives,\nwill take any action necessary to prevent the use of any information about the Disclosing Party in a way which might violate any antitrust or other\napplicable Law.\n4\nIt is understood that the covenants of this Agreement and the Proprietary Information disclosed are special, unique and of extraordinary\ncharacter. Each Disclosing Party may be irreparably harmed by a breach of this Agreement by the Receiving Party or its Representatives, and the use\nof the Proprietary Information for the business purposes of any person other than the Disclosing Party may enable such person to compete unfairly\nwith the Disclosing Party. Without prejudice to the rights and remedies otherwise available to each of the Parties, each Party shall be entitled to seek\nequitable relief by way of injunction or otherwise if the other Party or any of its Representatives breaches or threatens to breach any of the provisions\nof this Agreement. It is further understood and agreed that no failure or delay by a Party in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder. Each Party agrees that if the Receiving Party becomes aware of any disclosure of Proprietary Information of the\nDisclosing Party in violation of the terms hereof, the Receiving Party will promptly notify the Disclosing Party and will reasonably cooperate in any\nattempt by the Disclosing Party to obtain any remedy or relief relative thereto.\nThis Agreement and all controversies arising from or relating to performance under this Agreement shall be governed by and construed in\naccordance with the laws of the State of Texas, without giving effect to principles of choice or conflict of laws. This Agreement shall not be assigned\nby operation of Law or otherwise.\nThis Agreement is solely for the benefit of the Parties, and this Agreement shall not be deemed to confer upon or give to any other third party\nany remedy, claim of liability or reimbursement, cause of action or other right.\nIf any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the remainder of the\nprovisions of this Agreement shall remain in full force and effect. The Parties shall endeavor in good faith negotiations to replace any invalid, illegal\nor unenforceable provision with a valid, legal and enforceable provision, the effect of which comes as close as possible to that of the invalid, illegal\nor unenforceable provision.\n5\nThis Agreement contains the entire agreement between the Parties concerning the subject matter hereof, and no modification of this Agreement\nor waiver of the terms and conditions hereof shall be binding upon the Parties, unless approved in a writing signed by each of the Parties. This\nAgreement may be executed in counterparts, including by facsimile, each of which shall be an original, but all of which together shall constitute one\nand the same agreement.\n[Signature Page Follows]\n6\nPlease acknowledge your agreement to the foregoing by countersigning this Agreement in the space provided below and returning to the\nundersigned a fully executed original copy of this Agreement.\nSEAWELL LIMITED\nBy: /s/ Jorgen P. Rasmussen\nName: Jorgen P. Rasmussen\nTitle: Executive Chairman\nAccepted and Agreed\nas of the date first written\nabove:\nALLIS-CHALMERS ENERGY INC.\nBy: /s/ Munawar H. Hidayatallah\nName: Munawar H. Hidayatallah\nTitle: Chairman and CEO\n7\nLOGO\nJune 30, 2010\nCONFIDENTIAL\nSeawell Limited\n14-Par-la-Ville Road\nHamilton HMGX\nBermuda\nRegistration No. 40612\nAttention:Jorgen Rasmussen, Executive Chairman\nRe: Amendment to Confidentiality Agreement dated as of June 23, 2010.\nGentlemen:\nReference is made hereby to the Confidentiality Agreement dated as of June 23, 2010 (the “Agreement”) by and between Allis-Chalmers\nEnergy Inc. (“Allis-Chalmers”) and Seawell Limited (“Seawell” and together with Allis-Chalmers, the “Parties”). This letter shall serve to evidence\nthe agreement of the Parties to amend the Agreement, as of the date first set forth above, to insert the following two paragraphs at the end of the\nAgreement.\n“Each Party represents and warrants that as of the date hereof, neither it nor any of its subsidiaries beneficially owns any securities of the\nother Party. Each Party agrees that, until the earlier of (x) one year from the date of this Agreement and (y) the date on which a Fundamental\nChange Event (as defined below) with respect to the other Party occurs, neither it nor any of its affiliates will engage in any of the following\nactions, unless and until such action shall hereafter have been specifically invited by the board of directors (or similar managing body) of the\nother Party: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities, securities\nconvertible into voting securities or any direct or indirect rights to acquire any voting securities of the other Party or any subsidiary thereof or\nany assets of the other Party or any subsidiary or division thereof, (ii) make, or in any way participate in, directly or indirectly, any\n“solicitation” of “proxies” (as such terms are used in the rules of the United States Securities and Exchange Commission) to vote, or seek to\nadvise or influence any person or entity with respect to the voting of, any voting securities of the other Party, (iii) make any public\nannouncement with respect to, or submit a proposal for, or offer of (with or without conditions) any merger, consolidation, business\ncombination, tender or exchange offer, restructuring, recapitalization or other extraordinary transaction of or involving the other Party or any\nof its subsidiaries or their securities or assets, (iv) form, join or in any way participate in a “group” (as defined in Section 13(4)(3) of the\nSecurities Exchange Act of 1934, as amended, and regulations thereunder) in connection with any voting securities of the other Party,\n(v) otherwise act, alone or in concert with others, to seek to control or influence the Board of Directors of the other Party, (vi) make any\nrequest or proposal to amend, waive or terminate any provision of this paragraph if such action would reasonably be likely to require public\ndisclosure or (vii) directly or indirectly publicly announce an intention to do, or enter into any arrangement or understanding with others to do,\nany of the actions\nSeawell Limited\nJune 30, 2010\nPage 2\nrestricted or prohibited under clauses (i) through (vi) of this paragraph, or take any action that is reasonable likely to result in the other Party or\nany of its affiliates having to make a public announcement regarding any of the matters referred to in clauses (i) through (vi) of this paragraph.\nFor purposes of this Agreement, a “Fundamental Change Event” means, with respect to a Party, (i) any third party commencing, or publicly\nannouncing its intention to commence, a tender or exchange offer which, if consummated, would give such third party ownership of 50% or\nmore of the outstanding voting securities of such Party; (ii) such Party or any of its subsidiaries entering into a binding definitive agreement\nwith a third party to effect (x) a merger or other business combination or transaction pursuant to which, if consummated, the outstanding shares\nof common stock of such Party immediately prior to such merger or other business combination or transaction would represent less than 50%\nof the outstanding voting power of such Party or the resulting entity immediately following such merger or other business combination or\ntransaction or (y) a sale of all or substantially all of the assets of such Party and its subsidiaries on a consolidated basis; (iii) any third party\npublicly announcing its intention to make a proposal providing for a merger, consolidation, dissolution, recapitalization or other business\ncombination involving such Party or any of its subsidiaries (or such Party shall have made a public announcement with respect to its receipt of\nsuch a proposal); (iv) such Party commencing any voluntary case, proceeding or other action (x) under any existing or future law of any\njurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors or (y) seeking appointment of a\nreceiver, trustee, assignee, custodian, conservator or other similar official for it or for all or any substantial portion of its assets; or (v) the\ncommencement against such Party of any case, proceeding or other action (x) under any existing or future law of any jurisdiction, domestic or\nforeign, relating to bankruptcy, insolvency, reorganization or relief of debtors or (y) seeking appointment of a receiver, trustee, assignee,\ncustodian, conservator or other similar official for it or for all or any substantial portion of its assets that (1) results in the entry of an order for\nrelief or any such adjudication or appointment or (2) remains undismissed, undischarged or unbonded for a period of 60 days; provided, that\nfor purposes of this sentence, the term “Party” shall mean Allis-Chalmers or Seawell, as the case may be, and shall not include any subsidiary\nof such person. Notwithstanding anything in this Agreement to the contrary, for purposes of this paragraph neither Seadrill Ltd nor any of its\naffiliates (other than Seawell, its subsidiaries and any affiliate of Seadrill Ltd who is an officer or director of Seawell or any of its subsidiaries\nand is acting in such capacity) shall constitute an affiliate of Seawell.\nTo induce the Parties to proceed with their evaluation of a Potential Transaction, the Parties agree that during the Exclusivity Period\ndescribed below, they will not, directly or indirectly, conduct any negotiations with, or solicit any offers from, any third party for the\nacquisition of any of their respective outstanding capital stock, the acquisition of any material portion of their respective assets or properties, or\nfor the merger or consolidation of either of them or their respective subsidiaries; provided, however that the foregoing shall not restrict Seawell\nfrom conducting any such negotiations with, or soliciting any such offers from, Seadrill Ltd or any of its affiliates. The “Exclusivity Period”\nshall be the period beginning on the date of execution of this Agreement by the Parties and ending on the earlier of (i) the execution of a\ndefinitive agreement regarding the Potential Transaction and (ii) August 3, 2010. The Parties hereby acknowledge and agree that (x) Allis-\nChalmers is in negotiations to purchase all of the outstanding capital stock of American Well Control, Inc., (y) Seawell is pursuing an\nacquisition of Rig Inspection Services and (z) Seawell is negotiating a joint venture with IKM Elektro AS, and none of such transactions shall\nbe subject to the prohibitions of this paragraph.\nExcept as expressly provided herein, the Agreement shall remain in full force and effect.\nThis letter agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute the\nsame agreement.\nSeawell Limited\nJune 30, 2010\nPage 3\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this letter agreement, which will constitute\nour agreement with respect to the matters set forth herein.\n(Remainder of page left intentionally blank)\nVery truly yours,\nAllis-Chalmers Energy Inc.\n/s/ Munawar H. Hidayatallah\nMunawar H. Hidayatallah\nChief Executive Officer and Chairman\nAgreed to this\nday of July 2010:\nSeawell Limited\nBy: /s/ Jorgen P. Rasmussen\nName: Jorgen P. Rasmsussun\nTitle: Executive Chairman\nSeadrill Limited\nBy: /s/ Alf Thorkildsen\nName: Alf Thorkildsen\nTitle:\nSeawell Limited\n14-Par-la-Ville Road\nHamilton HMGX\nBermuda\nRegistration No. 40612\nAugust 3, 2010\nCONFIDENTIAL\nAllis-Chalmers Energy Inc.\n5075 Westheimer, Suite 890\nHouston, Texas 77056\nAttention: Munawar H. Hidayatallah, Chief Executive Officer and Chairman\nRe: Amendment to Confidentiality Agreement dated as of June 23, 2010, as amended.\nGentlemen:\nReference is made hereby to the Confidentiality Agreement dated as of June 23, 2010, as amended as of June 30, 2010 (the “Agreement”), by\nand between Allis-Chalmers Energy Inc. (“Allis-Chalmers”) and Seawell Limited (“Seawell” and together with Allis-Chalmers, the “Parties”). This\nletter shall serve to evidence the agreement of the Parties to amend the Agreement, as of the date first set forth above, as follows: the reference to\n“August 3, 2010” in the last paragraph of the Agreement is hereby amended to read “August 10, 2010”.\nExcept as expressly provided herein, the Agreement shall remain in full force and effect. This letter agreement may be executed in\ncounterparts, each of which shall be deemed to be an original, but both of which shall constitute the same agreement.\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this letter agreement, which will constitute\nour agreement with respect to the matters set forth herein.\n(Remainder of page left intentionally blank)\nVery truly yours,\nSeawell Limited\n/s/ Jorgen Rasmussen\nJorgen Rasmussen\nChairman\nAgreed to this\nday of August 2010:\nAllis-Chalmers Energy Inc.\nBy: /s/ Munawar H. Hidayatallah\nMunawar H. Hidayatallah\nChief Executive Officer and Chairman
+804dff42b6476d157f86d35b89a6e48b.pdf	effective_date jurisdiction party term	EXHIBIT B FORM OF NON-DISCLOSURE AGREEMENT NONDISCLOSURE AGREEMENT THIS\nNONDISCLOSURE AGREEMENT ("Agreement") dated as of ____________________, 200_____is entered into by\nand between AlgoRx Pharmaceuticals, Inc., a Delaware corporation ("AlgoRx"),\nand_________________________________________________, a\n_______________[CORPORATION] (the "Recipient"). 1. Confidential Information. For their mutual benefit, AlgoRx\nintends to discuss and disclose certain of its confidential information in connection with [INSERT A DESCRIPTION OF\nACTIVITY THAT RECIPIENT IS PERFORMING FOR ALGORX] (the "AlgoRx Matter"). Confidential Information\nshall mean information including, without limitation, a formula, pattern, trade secret, compilation, program, method,\ntechnique, process, biological material, gene sequence, cell line, assay, chemical compound, model, invention, work of\nauthorship, inventions, know-how, experimental work, sample, data, design, source code, research plan, business plan,\nbusiness opportunity, customer, employee or personnel list, or financial statement on date proprietary to AlgoRx that\nderives independent economic value, actual or potential, for not being generally known to the public or to other persons\nwho can obtain economic value from its disclosure or use. Confidential Information includes, but is not limited to,\ninformation disclosed in connection with the AlgoRx Matter. However, Confidential Information shall not include\ninformation that: (i) is now or subsequently becomes generally available to the public through no wrongful act or\nomission of the Recipient; (ii) the Recipient can demonstrate by written records to have had rightfully in its possession\nprior to disclosure to the Recipient by AlgoRx; or (iii) the Recipient rightfully obtains from a third party who has the\nright to transfer or disclose it. AlgoRx shall mark the material manifestations of its Confidential Information as being\nconfidential and proprietary so that the Recipient is aware that its receipt is governed by the terms of this Agreement. The\nforegoing notwithstanding, the terms of this Agreement also pertain to materials not so marked if AlgoRx informs the\nRecipient of their confidential nature or if the Recipient otherwise knows or should reasonably be expected to know of\ntheir confidential nature. 2. Nondisclosure. Except as has been specifically authorized by AlgoRx in writing, the\nRecipient shall not reproduce, use, distribute, disclose or otherwise disseminate the Confidential Information and shall\nnot take any action causing, or fail to take any reasonable action necessary to prevent, any Confidential Information\ndisclosed to the Recipient pursuant to this Agreement to lose its character as Confidential Information. In the event the\nRecipient is required to disclose any Confidential Information pursuant to law or government regulation, the Recipient\nshall promptly notify AlgoRx in order to allow AlgoRx the maximum time to obtain protective or confidential treatment\nof the Confidential Information before it is disclosed. Upon termination of the discussion or evaluation of the AlgoRx\nMatter or upon request by AlgoRx, the Recipient shall promptly deliver to AlgoRx or destroy all Confidential\nInformation and all embodiments thereof then in its custody, control or possession and shall deliver within five days after\nsuch termination or request a written statement to AlgoRx certifying to such action. 3. Ownership. All Confidential\nInformation shall remain the property of AlgoRx and no license or other right to such information is granted or implied\nhereby. Neither this Agreement nor the disclosing of Confidential Information to the Recipient constitutes any grant,\nright, license or assignment to the Recipient under any copyright, patent, trademark or other rights now or hereafter\nowned or controlled by AlgoRx. The AlgoRx Matter and all Confidential Information developed in connection therewith\nshall be the sole and exclusive property of AlgoRx. In the event any such Confidential Information developed in\nconnection with the AlgoRx Matter is deemed not to be the property of AlgoRx, the Recipient hereby assigns all rights\nthereto to AlgoRx and hereby agrees to sign all instruments reasonably necessary in the opinion of AlgoRx to eliminate\nany ambiguity as to ownership by AlgoRx, and Recipient hereby grants to AlgoRx a limited power-of-attorney to\nexecute any such instrument in the name of and on behalf of the Recipient to effect such assignment. 4. Duties of the\nRecipient. The Recipient agrees that access to Confidential Information will be limited to those employees or other\nauthorized representatives of the Recipient, as applicable, who: (a) need to know such Confidential Information in\nconnection with their work on the AlgoRx Matter; and (b) have agreed with the Recipient obligating them to maintain\nthe confidentiality of information disclosed to them and designated or defined as confidential. The Recipient further\nagrees to inform such employees or authorized representatives, as applicable, of the confidential nature of Confidential\nInformation and agrees to take all necessary steps to ensure that the terms of this Agreement are not violated by them.\nThe Recipient further agrees to promptly inform AlgoRx of any unauthorized disclosure or use of the Confidential\nInformation. 5. Equitable Relief. The Recipient hereby acknowledges that unauthorized disclosure or use of Confidential\nInformation could cause great or irreparable injury to AlgoRx and that pecuniary compensation would not afford\nadequate relief or it would be extremely difficult to ascertain the amount of compensation which would afford adequate\nrelief. Therefore, the Recipient agrees that AlgoRx will have the right to seek and obtain injunctive relief (without the\nrequirement to post a bond) in addition to any other rights and remedies it may have. 6. Indemnity. The Recipient agrees\nto indemnify AlgoRx for any loss or damage suffered as a result of any breach by the Recipient of the terms of this\nAgreement including any reasonable fees and expenses incurred by AlgoRx in the collection of such indemnity. 7. Term.\nThe Recipient's duty to protect Confidential Information pursuant to this Agreement expires ten years from the date of\ndisclosure of the Confidential Information. 8. Agency. The parties do not intend that any agency or partnership\nrelationship be created between them by this Agreement. 9. Assignment. The Recipient shall not assign its rights or\nobligations under this Agreement without the prior written consent of AlgoRx. 10. Modification. All additions or\nmodifications to this Agreement must be made in writing and must be signed by both parties. 11. Law. This Agreement\nshall be governed by and construed in accordance with the laws of the State of New Jersey applicable to contracts\nentered into and wholly to be performed in the State of New Jersey by New Jersey residents. 12. Notices. Any notice\nrequired or permitted hereunder shall be in writing and shall be deemed effectively given upon personal delivery, three\ndays after deposit in the United States mail, by certified mail, postage prepaid, return receipt requested, or the day after\ndelivery to a recognized overnight courier, to the following addresses: ALGORX RECIPIENT ALGORX\nPHARMACEUTICALS, INC. _________________________________________ 500 Plaza Drive, 2nd Floor\n_________________________________________\nSecaucus, NJ 07094\n_________________________________________\n______ ___________________________________\nAttention:\nPresident Attention: ______________________________ IN WITNESS WHEREOF, the parties hereto have executed\nthis Agreement as of the date first written above. ALGORX PHARMACEUTICALS, INC.\n_________________________________________\nBy:______________________________\nBy:______________________________________ Name:____________________________\nName:____________________________________ Title:___________________________\nTitle:___________________________________ Date:____________________________\nDate:____________________________________	EXHIBIT B FORM OF NON-DISCLOSURE AGREEMENT NONDISCLOSURE AGREEMENT THIS\nNONDISCLOSURE AGREEMENT ("Agreement") dated as of , 200 is entered into by\nand between AlgoRx Pharmaceuticals, Inc., a Delaware corporation ("AlgoRx"),\nand ,a\n[CORPORATION] (the "Recipient"). 1. Confidential Information. For their mutual benefit, AlgoRx\nintends to discuss and disclose certain of its confidential information in connection with [INSERT A DESCRIPTION OF\nACTIVITY THAT RECIPIENT IS PERFORMING FOR ALGORX] (the "AlgoRx Matter"). Confidential Information\nshall mean information including, without limitation, a formula, pattern, trade secret, compilation, program, method,\ntechnique, process, biological material, gene sequence, cell line, assay, chemical compound, model, invention, work of\nauthorship, inventions, know-how, experimental work, sample, data, design, source code, research plan, business plan,\nbusiness opportunity, customer, employee or personnel list, or financial statement on date proprietary to AlgoRx that\nderives independent economic value, actual or potential, for not being generally known to the public or to other persons\nwho can obtain economic value from its disclosure or use. Confidential Information includes, but is not limited to,\ninformation disclosed in connection with the AlgoRx Matter. However, Confidential Information shall not include\ninformation that: (i) is now or subsequently becomes generally available to the public through no wrongful act or\nomission of the Recipient; (ii) the Recipient can demonstrate by written records to have had rightfully in its possession\nprior to disclosure to the Recipient by AlgoRx; or (iii) the Recipient rightfully obtains from a third party who has the\nright to transfer or disclose it. AlgoRx shall mark the material manifestations of its Confidential Information as being\nconfidential and proprietary so that the Recipient is aware that its receipt is governed by the terms of this Agreement. The\nforegoing notwithstanding, the terms of this Agreement also pertain to materials not so marked if AlgoRx informs the\nRecipient of their confidential nature or if the Recipient otherwise knows or should reasonably be expected to know of\ntheir confidential nature. 2. Nondisclosure. Except as has been specifically authorized by AlgoRx in writing, the\nRecipient shall not reproduce, use, distribute, disclose or otherwise disseminate the Confidential Information and shall\nnot take any action causing, or fail to take any reasonable action necessary to prevent, any Confidential Information\ndisclosed to the Recipient pursuant to this Agreement to lose its character as Confidential Information. In the event the\nRecipient is required to disclose any Confidential Information pursuant to law or government regulation, the Recipient\nshall promptly notify AlgoRx in order to allow AlgoRx the maximum time to obtain protective or confidential treatment\nof the Confidential Information before it is disclosed. Upon termination of the discussion or evaluation of the AlgoRx\nMatter or upon request by AlgoRx, the Recipient shall promptly deliver to AlgoRx or destroy all Confidential\n \n \nInformation and all embodiments thereof then in its custody, control or possession and shall deliver within five days after\nsuch termination or request a written statement to AlgoRx certifying to such action. 3. Ownership. All Confidential\nInformation shall remain the property of AlgoRx and no license or other right to such information is granted or implied\nhereby. Neither this Agreement nor the disclosing of Confidential Information to the Recipient constitutes any grant,\nright, license or assignment to the Recipient under any copyright, patent, trademark or other rights now or hereafter\nowned or controlled by AlgoRx. The AlgoRx Matter and all Confidential Information developed in connection therewith\nshall be the sole and exclusive property of AlgoRx. In the event any such Confidential Information developed in\nconnection with the AlgoRx Matter is deemed not to be the property of AlgoRx, the Recipient hereby assigns all rights\nthereto to AlgoRx and hereby agrees to sign all instruments reasonably necessary in the opinion of AlgoRx to eliminate\nany ambiguity as to ownership by AlgoRx, and Recipient hereby grants to AlgoRx a limited power-of-attorney to\nexecute any such instrument in the name of and on behalf of the Recipient to effect such assignment. 4. Duties of the\nRecipient. The Recipient agrees that access to Confidential Information will be limited to those employees or other\nauthorized representatives of the Recipient, as applicable, who: (a) need to know such Confidential Information in\nconnection with their work on the AlgoRx Matter; and (b) have agreed with the Recipient obligating them to maintain\nthe confidentiality of information disclosed to them and designated or defined as confidential. The Recipient further\nagrees to inform such employees or authorized representatives, as applicable, of the confidential nature of Confidential\nInformation and agrees to take all necessary steps to ensure that the terms of this Agreement are not violated by them.\nThe Recipient further agrees to promptly inform AlgoRx of any unauthorized disclosure or use of the Confidential\nInformation. 5. Equitable Relief. The Recipient hereby acknowledges that unauthorized disclosure or use of Confidential\nInformation could cause great or irreparable injury to AlgoRx and that pecuniary compensation would not afford\nadequate relief or it would be extremely difficult to ascertain the amount of compensation which would afford adequate\nrelief. Therefore, the Recipient agrees that AlgoRx will have the right to seek and obtain injunctive relief (without the\nrequirement to post a bond) in addition to any other rights and remedies it may have. 6. Indemnity. The Recipient agrees\nto indemnify AlgoRx for any loss or damage suffered as a result of any breach by the Recipient of the terms of this\nAgreement including any reasonable fees and expenses incurred by AlgoRx in the collection of such indemnity. 7. Term.\nThe Recipient's duty to protect Confidential Information pursuant to this Agreement expires ten years from the date of\ndisclosure of the Confidential Information. 8. Agency. The parties do not intend that any agency or partnership\nrelationship be created between them by this Agreement. 9. Assignment. The Recipient shall not assign its rights or\nobligations under this Agreement without the prior written consent of AlgoRx. 10. Modification. All additions or\nmodifications to this Agreement must be made in writing and must be signed by both parties. 11. Law. This Agreement\nshall be governed by and construed in accordance with the laws of the State of New Jersey applicable to contracts\nentered into and wholly to be performed in the State of New Jersey by New Jersey residents. 12. Notices. Any notice\nrequired or permitted hereunder shall be in writing and shall be deemed effectively given upon personal delivery, three\ndays after deposit in the United States mail, by certified mail, postage prepaid, return receipt requested, or the day after\ndelivery to a recognized overnight courier, to the following addresses: ALGORX RECIPIENT ALGORX\nPHARMACEUTICALS, INC. 500 Plaza Drive, 2nd Floor\nSecaucus, NJ 07094\n \n \n \n \n \n \n \n \nAttention:\nPresident Attention: IN WITNESS WHEREOF, the parties hereto have executed\nthis Agreement as of the date first written above. ALGORX PHARMACEUTICALS, INC.\nBy:\nBy: Name:\nName: Title:\nTitle: Date:\n \n \nDate:\n	EXHIBIT B FORM OF NON-DISCLOSURE AGREEMENT NONDISCLOSURE AGREEMENT THIS\nNONDISCLOSURE AGREEMENT ("Agreement") dated as of\n200\nentered into by\nand between AlgoRx Pharmaceuticals, Inc., a Delaware corporation ("AlgoRx"),\nand\na\n[CORPORATION] (the "Recipient"). 1. Confidential Information. For their mutual benefit, AlgoRx\nintends to discuss and disclose certain of its confidential information in connection with [INSERT A DESCRIPTION\nOF\nACTIVITY THAT RECIPIENT IS PERFORMING FOR ALGORX] (the "AlgoRx Matter"). Confidential Information\nshall mean information including, without limitation, a formula, pattern, trade secret, compilation, program, method,\ntechnique, process, biological material, gene sequence, cell line, assay, chemical compound, model, invention, work of\nauthorship, inventions, know-how, experimental work, sample, data, design, source code, research plan, business plan,\nbusiness opportunity, customer, employee or personnel list, or financial statement on date proprietary to AlgoRx that\nderives independent economic value, actual or potential, for not being generally known to the public or to other persons\nwho can obtain economic value from its disclosure or use. Confidential Information includes, but is not limited to,\ninformation disclosed in connection with the AlgoRx Matter. However, Confidential Information shall not include\ninformation that: (i) is now or subsequently becomes generally available to the public through no wrongful act or\nomission of the Recipient; (ii) the Recipient can demonstrate by written records to have had rightfully in its possession\nprior to disclosure to the Recipient by AlgoRx; or (iii) the Recipient rightfully obtains from a third party who has the\nright to transfer or disclose it. AlgoRx shall mark the material manifestations of its Confidential Information as being\nconfidential and proprietary so that the Recipient is aware that its receipt is governed by the terms of this Agreement. The\nforegoing notwithstanding, the terms of this Agreement also pertain to materials not so marked if AlgoRx informs the\nRecipient of their confidential nature or if the Recipient otherwise knows or should reasonably be expected to know of\ntheir confidential nature. 2. Nondisclosure. Except as has been specifically authorized by AlgoRx in writing, the\nRecipient shall not reproduce, use, distribute, disclose or otherwise disseminate the Confidential Information and shall\nnot take any action causing, or fail to take any reasonable action necessary to prevent, any Confidential Information\ndisclosed to the Recipient pursuant to this Agreement to lose its character as Confidential Information. In the event the\nRecipient is required to disclose any Confidential Information pursuant to law or government regulation, the Recipient\nshall promptly notify AlgoRx in order to allow AlgoRx the maximum time to obtain protective or confidential treatment\nof the Confidential Information before it is disclosed. Upon termination of the discussion or evaluation of the AlgoRx\nMatter or upon request by AlgoRx, the Recipient shall promptly deliver to AlgoRx or destroy all Confidential\nInformation and all embodiments thereof then in its custody, control or possession and shall deliver within five days after\nsuch termination or request a written statement to AlgoRx certifying to such action. 3. Ownership. All Confidential\nInformation\nshall remain the property of AlgoRx and no license or other right to such information is granted or implied\nhereby. Neither this Agreement nor the disclosing of Confidential Information to the Recipient constitutes any grant,\nright, license or assignment to the Recipient under any copyright, patent, trademark or other rights now or hereafter\nowned or controlled by AlgoRx. The AlgoRx Matter and all Confidential Information developed in connection therewith\nshall be the sole and exclusive property of AlgoRx. In the event any such Confidential Information developed in\nconnection with the AlgoRx Matter is deemed not to be the property of AlgoRx, the Recipient hereby assigns all rights\nthereto to AlgoRx and hereby agrees to sign all instruments reasonably necessary in the opinion of AlgoRx to eliminate\nany ambiguity as to ownership by AlgoRx, and Recipient hereby grants to AlgoRx a limited power-of-attorney to\nexecute any such instrument in the name of and on behalf of the Recipient to effect such assignment. 4. Duties of the\nRecipient. The Recipient agrees that access to Confidential Information will be limited to those employees or other\nauthorized representatives of the Recipient, as applicable, who: (a) need to know such Confidential Information\nin\nconnection with their work on the AlgoRx Matter; and (b) have agreed with the Recipient obligating them to maintain\nthe confidentiality of information disclosed to them and designated or defined as confidential. The Recipient further\nagrees\nto\ninform\nsuch\nemployees\nor\nauthorized\nrepresentatives,\nas\napplicable,\nof\nthe\nconfidential\nnature\nof\nConfidential\nInformation and agrees to take all necessary steps to ensure that the terms of this Agreement are not violated by them.\nThe Recipient further agrees to promptly inform AlgoRx of any unauthorized disclosure or use of the Confidential\nInformation. 5. Equitable Relief. The Recipient hereby acknowledges that unauthorized disclosure or use of Confidential\nInformation could cause great or irreparable injury to AlgoRx and that pecuniary compensation would not afford\nadequate relief or it would be extremely difficult to ascertain the amount of compensation which would afford adequate\nrelief. Therefore, the Recipient agrees that AlgoRx will have the right to seek and obtain injunctive relief (without the\nrequirement to post a bond) in addition to any other rights and remedies it may have. 6. Indemnity. The Recipient agrees\nto indemnify AlgoRx for any loss or damage suffered as a result of any breach by the Recipient of the terms of this\nAgreement including any reasonable fees and expenses incurred by AlgoRx in the collection of such indemnity. 7. Term.\nThe Recipient's duty to protect Confidential Information pursuant to this Agreement expires ten years from the date\nof\ndisclosure of the Confidential Information. 8. Agency. The parties do not intend that any agency or partnership\nrelationship be created between them by this Agreement. 9. Assignment. The Recipient shall not assign its rights\nor\nobligations under this Agreement without the prior written consent of AlgoRx. 10. Modification. All additions or\nmodifications to this Agreement must be made in writing and must be signed by both parties. 11. Law. This Agreement\nshall be governed by and construed in accordance with the laws of the State of New Jersey applicable to contracts\nentered into and wholly to be performed in the State of New Jersey by New Jersey residents. 12. Notices. Any notice\nrequired or permitted hereunder shall be in writing and shall be deemed effectively given upon personal delivery, three\ndays after deposit in the United States mail, by certified mail, postage prepaid, return receipt requested, or the day after\ndelivery to a recognized overnight courier, to the following addresses: ALGORX RECIPIENT ALGORX\nPHARMACEUTICALS, INC.\n500 Plaza Drive, 2nd Floor\nSecaucus, NJ 07094\nAttention:\nPresident Attention:\nIN WITNESS WHEREOF, the parties hereto have executed\nthis Agreement as of the date first written above. ALGORX PHARMACEUTICALS, INC.\nBy:\nBy:\nName:\nName:\nTitle:\nTitle: Date:\nDate:	EXHIBIT B FORM OF NON-DISCLOSURE AGREEMENT NONDISCLOSURE AGREEMENT THIS\nNONDISCLOSURE AGREEMENT ("Agreement") dated as of ____________________, 200_____is entered into by\nand between AlgoRx Pharmaceuticals, Inc., a Delaware corporation ("AlgoRx"),\nand_________________________________________________, a\n_______________[CORPORATION] (the "Recipient"). 1. Confidential Information. For their mutual benefit, AlgoRx\nintends to discuss and disclose certain of its confidential information in connection with [INSERT A DESCRIPTION OF\nACTIVITY THAT RECIPIENT IS PERFORMING FOR ALGORX] (the "AlgoRx Matter"). Confidential Information\nshall mean information including, without limitation, a formula, pattern, trade secret, compilation, program, method,\ntechnique, process, biological material, gene sequence, cell line, assay, chemical compound, model, invention, work of\nauthorship, inventions, know-how, experimental work, sample, data, design, source code, research plan, business plan,\nbusiness opportunity, customer, employee or personnel list, or financial statement on date proprietary to AlgoRx that\nderives independent economic value, actual or potential, for not being generally known to the public or to other persons\nwho can obtain economic value from its disclosure or use. Confidential Information includes, but is not limited to,\ninformation disclosed in connection with the AlgoRx Matter. However, Confidential Information shall not include\ninformation that: (i) is now or subsequently becomes generally available to the public through no wrongful act or\nomission of the Recipient; (ii) the Recipient can demonstrate by written records to have had rightfully in its possession\nprior to disclosure to the Recipient by AlgoRx; or (iii) the Recipient rightfully obtains from a third party who has the\nright to transfer or disclose it. AlgoRx shall mark the material manifestations of its Confidential Information as being\nconfidential and proprietary so that the Recipient is aware that its receipt is governed by the terms of this Agreement. The\nforegoing notwithstanding, the terms of this Agreement also pertain to materials not so marked if AlgoRx informs the\nRecipient of their confidential nature or if the Recipient otherwise knows or should reasonably be expected to know of\ntheir confidential nature. 2. Nondisclosure. Except as has been specifically authorized by AlgoRx in writing, the\nRecipient shall not reproduce, use, distribute, disclose or otherwise disseminate the Confidential Information and shall\nnot take any action causing, or fail to take any reasonable action necessary to prevent, any Confidential Information\ndisclosed to the Recipient pursuant to this Agreement to lose its character as Confidential Information. In the event the\nRecipient is required to disclose any Confidential Information pursuant to law or government regulation, the Recipient\nshall promptly notify AlgoRx in order to allow AlgoRx the maximum time to obtain protective or confidential treatment\nof the Confidential Information before it is disclosed. Upon termination of the discussion or evaluation of the AlgoRx\nMatter or upon request by AlgoRx, the Recipient shall promptly deliver to AlgoRx or destroy all Confidential\nInformation and all embodiments thereof then in its custody, control or possession and shall deliver within five days after\nsuch termination or request a written statement to AlgoRx certifying to such action. 3. Ownership. All Confidential\nInformation shall remain the property of AlgoRx and no license or other right to such information is granted or implied\nhereby. Neither this Agreement nor the disclosing of Confidential Information to the Recipient constitutes any grant,\nright, license or assignment to the Recipient under any copyright, patent, trademark or other rights now or hereafter\nowned or controlled by AlgoRx. The AlgoRx Matter and all Confidential Information developed in connection therewith\nshall be the sole and exclusive property of AlgoRx. In the event any such Confidential Information developed in\nconnection with the AlgoRx Matter is deemed not to be the property of AlgoRx, the Recipient hereby assigns all rights\nthereto to AlgoRx and hereby agrees to sign all instruments reasonably necessary in the opinion of AlgoRx to eliminate\nany ambiguity as to ownership by AlgoRx, and Recipient hereby grants to AlgoRx a limited power-of-attorney to\nexecute any such instrument in the name of and on behalf of the Recipient to effect such assignment. 4. Duties of the\nRecipient. The Recipient agrees that access to Confidential Information will be limited to those employees or other\nauthorized representatives of the Recipient, as applicable, who: (a) need to know such Confidential Information in\nconnection with their work on the AlgoRx Matter; and (b) have agreed with the Recipient obligating them to maintain\nthe confidentiality of information disclosed to them and designated or defined as confidential. The Recipient further\nagrees to inform such employees or authorized representatives, as applicable, of the confidential nature of Confidential\nInformation and agrees to take all necessary steps to ensure that the terms of this Agreement are not violated by them.\nThe Recipient further agrees to promptly inform AlgoRx of any unauthorized disclosure or use of the Confidential\nInformation. 5. Equitable Relief. The Recipient hereby acknowledges that unauthorized disclosure or use of Confidential\nInformation could cause great or irreparable injury to AlgoRx and that pecuniary compensation would not afford\nadequate relief or it would be extremely difficult to ascertain the amount of compensation which would afford adequate\nrelief. Therefore, the Recipient agrees that AlgoRx will have the right to seek and obtain injunctive relief (without the\nrequirement to post a bond) in addition to any other rights and remedies it may have. 6. Indemnity. The Recipient agrees\nto indemnify AlgoRx for any loss or damage suffered as a result of any breach by the Recipient of the terms of this\nAgreement including any reasonable fees and expenses incurred by AlgoRx in the collection of such indemnity. 7. Term.\nThe Recipient's duty to protect Confidential Information pursuant to this Agreement expires ten years from the date of\ndisclosure of the Confidential Information. 8. Agency. The parties do not intend that any agency or partnership\nrelationship be created between them by this Agreement. 9. Assignment. The Recipient shall not assign its rights or\nobligations under this Agreement without the prior written consent of AlgoRx. 10. Modification. All additions or\nmodifications to this Agreement must be made in writing and must be signed by both parties. 11. Law. This Agreement\nshall be governed by and construed in accordance with the laws of the State of New Jersey applicable to contracts\nentered into and wholly to be performed in the State of New Jersey by New Jersey residents. 12. Notices. Any notice\nrequired or permitted hereunder shall be in writing and shall be deemed effectively given upon personal delivery, three\ndays after deposit in the United States mail, by certified mail, postage prepaid, return receipt requested, or the day after\ndelivery to a recognized overnight courier, to the following addresses: ALGORX RECIPIENT ALGORX\nPHARMACEUTICALS, INC. _________________________________________ 500 Plaza Drive, 2nd Floor\n_________________________________________\nSecaucus, NJ 07094\n_________________________________________\n______ ___________________________________\nAttention:\nPresident Attention: ______________________________ IN WITNESS WHEREOF, the parties hereto have executed\nthis Agreement as of the date first written above. ALGORX PHARMACEUTICALS, INC.\n_________________________________________\nBy:______________________________\nBy:______________________________________ Name:____________________________\nName:____________________________________ Title:___________________________\nTitle:___________________________________ Date:____________________________\nDate:____________________________________
+809abb3273c6043d409ec5440de965d5.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 9 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nNovember 6, 2009\nHID Global Corporation\n15370 Barranca Parkway\nIrvine, CA 92618\nAttention: Tim Moxon, Director, Mergers & Acquisitions\nDear HID Global Corporation:\nIn connection with your consideration of a possible transaction with LaserCard Corporation (the “Company”) (a “Transaction”), you have\nrequested the right to review certain non-public information of the Company. In consideration of, and as a condition to, furnishing you with such\ninformation and any other information (whether in oral or written form, electronically stored or otherwise) delivered to you or any of your affiliates\n(as defined in paragraph 5 hereof), directors, officers, employees, legal or financial advisors, agents, representatives or “controlling persons” (within\nthe meaning of the Securities Exchange Act of 1934, as amended (the “1934 Act”)) (such persons with respect to any person being herein referred to\ncollectively as that person’s “Representatives”) by us or our Representatives (such information, whether in written, oral, electronic or other form\nand whether prepared or made available to you before, on or after the date hereof, as well as any notes, analyses, compilations, studies, documents or\nother materials prepared by or on behalf of you or your Representatives which contain, are based on, derived from or otherwise reflect in whole or in\npart such information, in whatever form maintained or derived, collectively being referred to herein as “Evaluation Material”) in connection with\nyour consideration of the Transaction, as well as a condition to further discussions among the parties, the parties agree, as follows:\n1. You and your Representatives (i) will use the Evaluation Material solely for the purpose of evaluating the Transaction with the Company\nby you or your affiliates, and (ii) will keep the Evaluation Material strictly confidential and will not (except as required by applicable\nlaw, regulation, legal process, civil or regulatory investigative demand or other similar process, and in such case only in compliance with\nparagraph 3 below), without the Company’s prior written consent, disclose any of the Evaluation Material to any person, except that the\nEvaluation Material (or portions thereof) may be disclosed to those of your Representatives who need to know such information solely\nfor the purpose of evaluating the Transaction with the Company (provided that prior to such disclosure your Representatives will be\ninformed of the confidential nature of the Evaluation Material and shall agree to be bound by this letter agreement to the same extent as\nif they were parties thereto). You agree to be responsible for any breach of this letter agreement by your Representatives, and that the\nCompany shall be entitled to directly enforce such agreement against you (it being understood that such responsibility shall be in\naddition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such\nbreach). You shall secure and safeguard any and all information, documents, work in process, and work product that embodies\nEvaluation Material to reasonably restrict access and prevent unauthorized use and/or disclosure. You further agree that you will\nmaintain reasonable procedures to protect the secrecy of and prevent accidental or other loss or unauthorized use of any Evaluation\nMaterial. You shall reproduce the Company’s proprietary rights notices on any copies of Evaluation Material, in the same manner in\nwhich such notices were set forth in or on the original. You shall not reverse engineer, disassemble or decompile any prototypes,\nsoftware or other tangible objects that embody Evaluation Material.\nThe parties recognize and acknowledge the competitive value of the Transaction Information (as such term is defined in paragraph 4\nhereof) and Evaluation Material and the damage that could result to the Company if the Transaction Information or Evaluation Material\nwere used or disclosed except as authorized by this letter agreement. You understand that some Evaluation Material deemed\ncompetitively sensitive may be designated for review solely by your outside advisors or by those of your employees whose\nresponsibilities do not include contacting customers or potential customers or the determination of product pricing, and you agree to, and\nto cause your Representatives to, abide by such designation.\n2. The term “Evaluation Material” does not include any information which (1) at the time of disclosure or thereafter is generally known by\nthe public (other than as a result of its disclosure by you or your Representatives), (ii) was or becomes available to you on a non-\nconfidential basis from a person not known by you (after reasonable inquiry) to be bound by a confidentiality agreement with the\nCompany or its Representatives or who is not known by you (after reasonable inquiry) to be prohibited from transmitting the information\nto you, (iii) is within your possession prior to it being furnished to you, provided that the person providing such information was not\nknown by you (after reasonable inquiry) to be bound by a confidentiality agreement or obligation with or to the Company or its\nRepresentatives or (iii) was independently developed by you or your Representatives without violation of any of your obligations under\nthis letter agreement and without any use of or reference to any Evaluation Material. As used in this letter agreement, the term “person”\nshall be broadly interpreted to include, without limitation, any corporation, company, partnership, limited liability company, group,\nassociation or other entity or individual, acting individually or together.\n3. In the event that either party or its Representatives receives a request or is required to disclose any Transaction Information (as defined\nbelow) or you or your Representatives receive a request or are required to disclose all or any part of the information contained in the\nEvaluation Material pursuant to the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a\ngovernmental or regulatory body or pursuant to a civil investigative demand or similar process (including, without limitation, by oral\nquestions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil or regulatory investigative\ndemand or other similar process), the parties agree to (i) where lawful , promptly notify the counterparty of the existence, terms and\ncircumstances surrounding such a request, so that the party seeking to limit disclosure may seek an appropriate protective order, at the\nsole expense of the party seeking to limit disclosure, and/or waive compliance with the provisions of this letter agreement (and, if the\nparty seeking to limit disclosure seeks such an order, to provide such cooperation as the party seeking to limit disclosure shall reasonably\nrequest), (ii) if such protective order or remedy is not obtained or the party seeking to limit disclosure waives compliance with the\nprovisions of this letter agreement, and if disclosure of such information is required upon the advice of counsel, disclose only such\ninformation which the disclosing party is advised by its counsel is legally required to be disclosed and (iii) exercise commercially\nreasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such information and\ncooperate fully with any efforts of the party seeking to limit disclosure to achieve the same, at the sole expense of the party seeking to\nlimit disclosure.\n4. Unless otherwise required by law in the opinion of counsel, neither party nor its Representatives will, without the counterparty’s prior\nwritten consent, disclose to any person the existence of this letter agreement or provide a copy of this letter agreement to any person,\ndisclose to any person the fact that the Company is considering a possible transaction between the parties, disclose to any person either\nthe fact that discussions or negotiations are taking place concerning a Transaction between the parties, or any of the terms, conditions or\nother facts with respect to any such Transaction, including, without limitation, the status thereof and the fact that the Evaluation Material\nhas been made available to you (the information referred to in this paragraph 4, the “Transaction Information”).\n5. You agree that for a period of two years from the date of this letter agreement, neither you nor any of your affiliates will, directly or\nindirectly, solicit for purposes of employment as an employee or retention as’ a contractor, any of the officers or senior level employees,\nidentified in connection with your evaluation of the Transaction, of the Company or its affiliates, or otherwise solicit, induce or\notherwise encourage any officer or senior level employee of the Company or its affiliates to discontinue, cancel or refrain from entering\ninto any relationship (contractual or otherwise) with the Company or any affiliate of the Company, without the Company’s prior written\nconsent; provided,\nhowever, you shall not be prohibited from employing any such person who, without any direct or indirect solicitation by you, contacts\nyou on his or her own initiative, including without limitation as a result of any general solicitation for employment made to the public.\nGeneralized searches for employees in the ordinary course of business consistent with past practice through the use of advertisements in\nthe media (including the trade media) or Web site job postings shall not constitute solicitation for purposes of this Section. The\nengagement of a recruiting firm to the extent that such firm’s efforts are not specifically targeted at any officer or employee of the\nCompany shall also not constitute solicitation for purposes of this Section. For purposes of this letter agreement, “affiliate” means as to\nany person, any other person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such person or\nthat owns more than 50% of the voting stock of such person. The term “control” (including, with correlative meanings, the terms\n“controlled by” and “under common control with”), as applied to any person, means the possession, direct or indirect, of the power to\ndirect or cause the direction of the management and policies of such person, whether through the ownership of voting securities or other\nownership interest, by contract or otherwise.\n6. It is understood that the Company or its Representatives may arrange for appropriate contacts for due diligence purposes and, other than\ncommunication with such contacts regarding due diligence matters, until the earlier of (i) the consummation of a transaction between the\nCompany and you, or (ii) two (2) years from the date of this letter agreement, you will not, and will cause your Representatives not to,\ninitiate or maintain contact with any officer, director, employee, agent, affiliate, supplier, distributor, broker or customer of the Company\nor any of its subsidiaries regarding the Company or any of its subsidiaries or their respective operations, assets, prospects or finances, or\nseek any information in connection with a possible Transaction from such person, except for communications in the ordinary course of\nthe parties’ business or with the express permission of the Company.\n7. You hereby acknowledge that Evaluation Material is being furnished to you in consideration of your agreement, and you hereby agree,\nthat for a period of two (2) years from the date of this letter agreement, you and your Representatives shall not, directly or indirectly, and\nyou shall cause any person or entity controlled by you not to, without the prior written consent of the Company, directly or indirectly,\nalone or jointly or in concert with any other person (including by providing financing to any other person), whether publicly or otherwise\n(i) in any manner acquire, agree to acquire or make any proposal to acquire any securities or property of the Company or any of its\naffiliates, (ii) propose to enter into any merger, consolidation, recapitalization, business combination, partnership, joint venture or other\nsimilar transaction involving the Company or any of its affiliates, (iii) make, or in any way participate in any “solicitation” of “proxies”\n(as such terms are used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person\nwith respect to the voting of any voting securities of the Company or any of its affiliates, (iv) form, join or in any way participate in a\n“group” (within the meaning of Section 13(d)(3) of the 1934 Act) with respect to any of the foregoing or with respect to any voting\nsecurities of the Company or any of its affiliates, (v) otherwise act, alone or in concert with others, to seek to control or influence the\nmanagement, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the\nforegoing, or (vii) advise, assist or encourage any other persons in connection with any of the foregoing. You also agree during such two-\nyear period not to (x) request the Company (or its Representatives), directly or indirectly, to amend or waive any provision of this\nparagraph 7 (including this sentence) or otherwise consent to any action inconsistent with any provision of this paragraph 7 (including\nthis sentence), (y) take any action (including, without limitation, any request or other communication to the Company or its\nRepresentatives regarding any amendment or waiver of any provision of this paragraph 7) which might require the Company or any of\nits affiliates to make a public announcement regarding this letter agreement, any of the matters referred to in this paragraph 7 or the\npossibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, a Transaction, or\n(z) communicate with the Company’s shareholders regarding the subject matter of this letter agreement. Notwithstanding the foregoing,\nnothing shall prohibit you from submitting a proposal for a transaction to management and the Board of Directors of the Company. In\naddition, in the event that the Board of Directors of the Company shall approve any of the actions referred to in clause (ii) above, then\nnone of the prohibitions of this paragraph 7 shall apply to the matters described in the clause (ii) above with respect to you and such\napproved actions.\n8. You acknowledge that you are aware, and that you will advise your Representatives who receive the Evaluation Material, that the United\nStates securities laws prohibit any person who has material, non-public information concerning the matters which are the subject of this\nletter agreement from purchasing or selling securities of the Company (and options, warrants and rights relating thereto) or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person\nincluding, without limitation, any of your Representatives, is likely to purchase or sell such securities; and you agree to fully comply\nwith such laws.\n9. To the extent that Evaluation Material may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree\nthat they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the\nsharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material\nprovided by the Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine.\n10. This Agreement does not constitute or create any obligation of the Company to provide any Evaluation Material or other information to\nyou, but merely defines the duties and obligations of the parties herein. Under no circumstances is the Company obligated to disclose or\nmake available any information, including any Evaluation Material, which in its sole and absolute discretion determines not to disclose.\nNeither this letter agreement nor disclosure of any Evaluation Material to you shall be deemed by implication or otherwise to vest in you\nor your Representatives rights in or to the Evaluation Material, other than the right to use such Evaluation Material solely for the purpose\nof evaluating the Transaction. You understand and acknowledge that neither the Company nor any of its Representatives is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information\nprovided to you by the Company or its Representatives. You understand and acknowledge that you may not rely on the accuracy or\ncompleteness of the Evaluation Material and that you may rely solely on those representations and warranties, if any, that are made to\nyou in a definitive agreement regarding the Transaction when, as and if it is executed, subject to such limitations and restrictions as may\nbe specified in such definitive agreement. Neither the Company nor any of its affiliates or Representatives, nor any of our respective\nofficers, directors, employees, agents or controlling persons (within the meaning of the 1934 Act) shall have any liability to you or any\nother person (including, without limitation, any of your Representatives) resulting from your receipt or use of the Evaluation Material,\nunless specified in a definitive agreement. You acknowledge that the Company and its Representatives shall be free to take such actions\nregarding any possible transaction and for the dissemination of Evaluation Material which they in their sole discretion shall determine\nincluding, without limitation, negotiating with any other party and entering into a definitive transaction agreement with any other party\nwithout prior notice to you or any other person or discontinuing discussions or negotiations with you or any other party at any time for\nany reason or for no reason. Negotiations or agreement by us with any third party will not relieve either party or its Representatives from\nits obligations hereunder.\n11. The parties agree that unless and until a definitive agreement between the Company and you with respect to a Transaction has been\nexecuted and delivered, neither party will not be under any legal obligation of any kind whatsoever with respect to such Transaction or\nany other transaction by virtue of (i) this letter agreement or (ii) any written or oral expression with respect to such Transaction by either\nparty’s Representatives except, in the case of this letter agreement, for the matters specifically agreed to herein. For purposes of this\nletter agreement, the term “definitive agreement” does not include an executed letter of intent or any other preliminary written\nagreement, nor does it include any written or oral acceptance of any offer or bid by you.\n12. You agree that the Company has not granted you any license, copyright, patent, trade secret or similar right with respect to any of the\nEvaluation Material or any other information provided to you by the Company or its Representatives.\n13. At the request of the Company in its sole discretion and for any reason, or on your own initiative if you decide not to proceed with a\nTransaction (of which decision you will promptly notify the Company), you will promptly (and in any event no later than 10 business\ndays after the request therefor), at your sole discretion, (a) return to us all of the Evaluation Material, including all copies, reproductions,\nsummaries, analyses or extracts thereof or based thereon in your possession or in the possession of any of your Representatives or\n(b) destroy, unless such destruction is commercially unreasonable and/or in violation of your internal compliance obligations, all such\nEvaluation Material in your possession or in the possession of any of your Representatives (such destruction to be certified promptly in\nwriting to us by your authorized officer supervising such destruction). Notwithstanding any such return or destruction of the Evaluation\nMaterial, you and your Representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder;\nprovided that to the extent any Evaluation Material is retained by you because its return or destruction would be commercially\nunreasonable and/or in violation of your internal compliance obligations, then the non-use and non-disclosure provisions of this letter\nagreement shall (notwithstanding paragraph 22 below) specifically survive for so long as such Evaluation Material is retained by you or\nyour Representatives.\n14. The parties acknowledge that remedies at law may be inadequate to protect the parties against any actual or threatened breach of this\nletter agreement by the counterparty or by its Representatives and, without prejudice to the rights and remedies otherwise available to the\nallegedly harmed party, each party agrees that the allegedly harmed party shall be entitled to equitable relief (including specific\nperformance or injunction) in the allegedly harmed party’s favor without proof of actual damages. Any equitable relief shall not be\ndeemed to be the exclusive remedy for a breach of this letter agreement, but shall be in addition to all other remedies available at law or\nequity.\n15. The validity and interpretation of this letter agreement shall be governed by, and construed and enforced in accordance with, the laws of\nthe State of Delaware applicable to agreements made and to be fully performed therein (excluding the conflicts of laws rules). You\nirrevocably and unconditionally (i) submit to the exclusive jurisdiction of the courts of the State of Delaware for the purpose of any suit,\naction, or other proceeding arising out of or relating to this letter agreement and the transactions contemplated thereby (each a\n“Proceeding”), (ii) agree that all claims in respect of any Proceeding shall be heard and determined exclusively in any such court, and\n(iii) waive, to the fullest extent permitted by law, any immunity you have acquired, or hereafter may acquire, from jurisdiction of any\nsuch court or from any legal process therein, and (iv) agree not to commence any Proceeding other than in such court, and waive, to the\nfullest extent permitted by applicable law, any claim that any such Proceeding brought in any such court has been brought in an\ninconvenient forum.\n16. If it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is\ninvalid or unenforceable, (i) the remaining terms and provision hereof shall be unimpaired and shall remain in full force and effect and\n(ii) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes\nclosest to expressing the intention of such invalid or unenforceable term or provision.\n17. This Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements,\narrangements and understandings relating to the matters provided for herein. No alteration, waiver, amendment, change or supplement\nhereto shall be binding or effective unless the same is set forth in writing signed by a duly authorized representative of each party and the\nsame may be modified or waived only by a separate letter executed by the Company and you expressly so modifying or waiving such\nagreement.\n18. This Agreement may be executed and delivered either originally, by facsimile of the signature page or by e-mail of a scanned copy of the\nsignature page in Adobe Acrobat PDF format, and in one or more counterparts, all of which taken together shall constitute one and the\nsame instrument.\n19. This Agreement will be binding upon the parties and its Representatives and its respective heirs, successors and assigns, and will inure to\nthe benefit of the counterparty and its Representatives and their respective heirs, successors and assigns. Neither party may assign any of\nits rights or obligations hereunder; provided, that, the Company reserves the right to assign its rights, powers and privileges under this\nletter agreement (including, without limitation, the right to enforce the terms of this letter agreement) to any person who enters into a\ntransaction to acquire control of the Company or substantially all of its assets.\n20. Each party shall be responsible for its own costs and expenses incurred in connection with your evaluation of the Transaction.\n21. You acknowledge that the Evaluation Material you receive may include technical data developed in the United States, and therefore, you\nshall not export or re-export any Evaluation Material without full compliance with all applicable export laws.\n22. If the parties proceed with the contemplated Transaction, the provisions of this letter agreement shall be superseded by the agreements\ngoverning the contemplated Transaction. In any event, the obligations of the parties and their Representatives set forth herein shall\nterminate three (3) years after the date hereof, provided that any provisions that survive such termination shall continue to survive,\nincluding the last sentence of paragraph 13 hereof.\n[Signature page follows]\nThis Agreement is being delivered to you in duplicate. Kindly execute and return one copy of this letter, which will constitute our Agreement\nwith respect to the subject matter of this letter.\nVery truly yours,\nLASERCARD CORPORATION\nBy: /s/ Robert T. DeVincenzi\nName: R. T. DeVincenzi\nTitle\nCEO\nConfirmed and Agreed to\nthis 6 day of November 2009\nHID GLOBAL CORPORATION\nBy:\n/s/ Timothy B. Moxon\nName:\nTim Moxon\nTitle\nDirector, M&A\nth	EX-99.(D)(3) 9 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nNovember 6, 2009\nHID Global Corporation\n15370 Barranca Parkway\nIrvine, CA 92618\nAttention: Tim Moxon, Director, Mergers & Acquisitions\nDear HID Global Corporation:\nIn connection with your consideration of a possible transaction with LaserCard Corporation (the “Company”) (a “Transaction”), you have\nrequested the right to review certain non-public information of the Company. In consideration of, and as a condition to, furnishing you with such\ninformation and any other information (whether in oral or written form, electronically stored or otherwise) delivered to you or any of your affiliates\n(as defined in paragraph 5 hereof), directors, officers, employees, legal or financial advisors, agents, representatives or “controlling persons” (within\nthe meaning of the Securities Exchange Act of 1934, as amended (the “1934 Act”)) (such persons with respect to any person being herein referred to\ncollectively as that person’s “Representatives”) by us or our Representatives (such information, whether in written, oral, electronic or other form\nand whether prepared or made available to you before, on or after the date hereof, as well as any notes, analyses, compilations, studies, documents or\nother materials prepared by or on behalf of you or your Representatives which contain, are based on, derived from or otherwise reflect in whole or in\npart such information, in whatever form maintained or derived, collectively being referred to herein as “Evaluation Material”) in connection with\nyour consideration of the Transaction, as well as a condition to further discussions among the parties, the parties agree, as follows:\n1. You and your Representatives (i) will use the Evaluation Material solely for the purpose of evaluating the Transaction with the Company\nby you or your affiliates, and (ii) will keep the Evaluation Material strictly confidential and will not (except as required by applicable\nlaw, regulation, legal process, civil or regulatory investigative demand or other similar process, and in such case only in compliance with\nparagraph 3 below), without the Company’s prior written consent, disclose any of the Evaluation Material to any person, except that the\nEvaluation Material (or portions thereof) may be disclosed to those of your Representatives who need to know such information solely\nfor the purpose of evaluating the Transaction with the Company (provided that prior to such disclosure your Representatives will be\ninformed of the confidential nature of the Evaluation Material and shall agree to be bound by this letter agreement to the same extent as\nif they were parties thereto). You agree to be responsible for any breach of this letter agreement by your Representatives, and that the\nCompany shall be entitled to directly enforce such agreement against you (it being understood that such responsibility shall be in\naddition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such\nbreach). You shall secure and safeguard any and all information, documents, work in process, and work product that embodies\nEvaluation Material to reasonably restrict access and prevent unauthorized use and/or disclosure. You further agree that you will\nmaintain reasonable procedures to protect the secrecy of and prevent accidental or other loss or unauthorized use of any Evaluation\nMaterial. You shall reproduce the Company’s proprietary rights notices on any copies of Evaluation Material, in the same manner in\nwhich such notices were set forth in or on the original. You shall not reverse engineer, disassemble or decompile any prototypes,\nsoftware or other tangible objects that embody Evaluation Material.\nThe parties recognize and acknowledge the competitive value of the Transaction Information (as such term is defined in paragraph 4\nhereof) and Evaluation Material and the damage that could result to the Company if the Transaction Information or Evaluation Material\nwere used or disclosed except as authorized by this letter agreement. You understand that some Evaluation Material deemed\ncompetitively sensitive may be designated for review solely by your outside advisors or by those of your employees whose\nresponsibilities do not include contacting customers or potential customers or the determination of product pricing, and you agree to, and\nto cause your Representatives to, abide by such designation.\nThe term “Evaluation Material” does not include any information which (1) at the time of disclosure or thereafter is generally known by\nthe public (other than as a result of its disclosure by you or your Representatives), (ii) was or becomes available to you on a non-\nconfidential basis from a person not known by you (after reasonable inquiry) to be bound by a confidentiality agreement with the\nCompany or its Representatives or who is not known by you (after reasonable inquiry) to be prohibited from transmitting the information\nto you, (iii) is within your possession prior to it being furnished to you, provided that the person providing such information was not\nknown by you (after reasonable inquiry) to be bound by a confidentiality agreement or obligation with or to the Company or its\nRepresentatives or (iii) was independently developed by you or your Representatives without violation of any of your obligations under\nthis letter agreement and without any use of or reference to any Evaluation Material. As used in this letter agreement, the term “person”\nshall be broadly interpreted to include, without limitation, any corporation, company, partnership, limited liability company, group,\nassociation or other entity or individual, acting individually or together.\nIn the event that either party or its Representatives receives a request or is required to disclose any Transaction Information (as defined\nbelow) or you or your Representatives receive a request or are required to disclose all or any part of the information contained in the\nEvaluation Material pursuant to the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a\ngovernmental or regulatory body or pursuant to a civil investigative demand or similar process (including, without limitation, by oral\nquestions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil or regulatory investigative\ndemand or other similar process), the parties agree to (i) where lawful , promptly notify the counterparty of the existence, terms and\ncircumstances surrounding such a request, so that the party seeking to limit disclosure may seek an appropriate protective order, at the\nsole expense of the party seeking to limit disclosure, and/or waive compliance with the provisions of this letter agreement (and, if the\nparty seeking to limit disclosure seeks such an order, to provide such cooperation as the party seeking to limit disclosure shall reasonably\nrequest), (ii) if such protective order or remedy is not obtained or the party seeking to limit disclosure waives compliance with the\nprovisions of this letter agreement, and if disclosure of such information is required upon the advice of counsel, disclose only such\ninformation which the disclosing party is advised by its counsel is legally required to be disclosed and (iii) exercise commercially\nreasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such information and\ncooperate fully with any efforts of the party seeking to limit disclosure to achieve the same, at the sole expense of the party seeking to\nlimit disclosure.\nUnless otherwise required by law in the opinion of counsel, neither party nor its Representatives will, without the counterparty’s prior\nwritten consent, disclose to any person the existence of this letter agreement or provide a copy of this letter agreement to any person,\ndisclose to any person the fact that the Company is considering a possible transaction between the parties, disclose to any person either\nthe fact that discussions or negotiations are taking place concerning a Transaction between the parties, or any of the terms, conditions or\nother facts with respect to any such Transaction, including, without limitation, the status thereof and the fact that the Evaluation Material\nhas been made available to you (the information referred to in this paragraph 4, the “Transaction Information™).\nYou agree that for a period of two years from the date of this letter agreement, neither you nor any of your affiliates will, directly or\nindirectly, solicit for purposes of employment as an employee or retention as’ a contractor, any of the officers or senior level employees,\nidentified in connection with your evaluation of the Transaction, of the Company or its affiliates, or otherwise solicit, induce or\notherwise encourage any officer or senior level employee of the Company or its affiliates to discontinue, cancel or refrain from entering\ninto any relationship (contractual or otherwise) with the Company or any affiliate of the Company, without the Company’s prior written\nconsent; provided,\nhowever, you shall not be prohibited from employing any such person who, without any direct or indirect solicitation by you, contacts\nyou on his or her own initiative, including without limitation as a result of any general solicitation for employment made to the public.\nGeneralized searches for employees in the ordinary course of business consistent with past practice through the use of advertisements in\nthe media (including the trade media) or Web site job postings shall not constitute solicitation for purposes of this Section. The\nengagement of a recruiting firm to the extent that such firm’s efforts are not specifically targeted at any officer or employee of the\nCompany shall also not constitute solicitation for purposes of this Section. For purposes of this letter agreement, “affiliate” means as to\nany person, any other person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such person or\nthat owns more than 50% of the voting stock of such person. The term “control” (including, with correlative meanings, the terms\n“controlled by” and “under common control with”), as applied to any person, means the possession, direct or indirect, of the power to\ndirect or cause the direction of the management and policies of such person, whether through the ownership of voting securities or other\nownership interest, by contract or otherwise.\nIt is understood that the Company or its Representatives may arrange for appropriate contacts for due diligence purposes and, other than\ncommunication with such contacts regarding due diligence matters, until the earlier of (i) the consummation of a transaction between the\nCompany and you, or (ii) two (2) years from the date of this letter agreement, you will not, and will cause your Representatives not to,\ninitiate or maintain contact with any officer, director, employee, agent, affiliate, supplier, distributor, broker or customer of the Company\nor any of its subsidiaries regarding the Company or any of its subsidiaries or their respective operations, assets, prospects or finances, or\nseek any information in connection with a possible Transaction from such person, except for communications in the ordinary course of\nthe parties’ business or with the express permission of the Company.\nYou hereby acknowledge that Evaluation Material is being furnished to you in consideration of your agreement, and you hereby agree,\nthat for a period of two (2) years from the date of this letter agreement, you and your Representatives shall not, directly or indirectly, and\nyou shall cause any person or entity controlled by you not to, without the prior written consent of the Company, directly or indirectly,\nalone or jointly or in concert with any other person (including by providing financing to any other person), whether publicly or otherwise\n(i) in any manner acquire, agree to acquire or make any proposal to acquire any securities or property of the Company or any of its\naffiliates, (ii) propose to enter into any merger, consolidation, recapitalization, business combination, partnership, joint venture or other\nsimilar transaction involving the Company or any of its affiliates, (iii) make, or in any way participate in any “solicitation” of “proxies”\n(as such terms are used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person\nwith respect to the voting of any voting securities of the Company or any of its affiliates, (iv) form, join or in any way participate in a\n“group” (within the meaning of Section 13(d)(3) of the 1934 Act) with respect to any of the foregoing or with respect to any voting\nsecurities of the Company or any of its affiliates, (v) otherwise act, alone or in concert with others, to seek to control or influence the\nmanagement, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the\nforegoing, or (vii) advise, assist or encourage any other persons in connection with any of the foregoing. You also agree during such two-\nyear period not to (x) request the Company (or its Representatives), directly or indirectly, to amend or waive any provision of this\nparagraph 7 (including this sentence) or otherwise consent to any action inconsistent with any provision of this paragraph 7 (including\nthis sentence), (y) take any action (including, without limitation, any request or other communication to the Company or its\nRepresentatives regarding any amendment or waiver of any provision of this paragraph 7) which might require the Company or any of\nits affiliates to make a public announcement regarding this letter agreement, any of the matters referred to in this paragraph 7 or the\npossibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, a Transaction, or\n(z) communicate with the Company’s shareholders regarding the subject matter of this letter agreement. Notwithstanding the foregoing,\nnothing shall prohibit you from submitting a proposal for a transaction to management and the Board of Directors of the Company. In\naddition, in the event that the Board of Directors of the Company shall approve any of the actions referred to in clause (ii) above, then\nnone of the prohibitions of this paragraph 7 shall apply to the matters described in the clause (ii) above with respect to you and such\napproved actions.\n10. 11. You acknowledge that you are aware, and that you will advise your Representatives who receive the Evaluation Material, that the United\nStates securities laws prohibit any person who has material, non-public information concerning the matters which are the subject of this\nletter agreement from purchasing or selling securities of the Company (and options, warrants and rights relating thereto) or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person\nincluding, without limitation, any of your Representatives, is likely to purchase or sell such securities; and you agree to fully comply\nwith such laws.\nTo the extent that Evaluation Material may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree\nthat they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the\nsharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material\nprovided by the Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine.\nThis Agreement does not constitute or create any obligation of the Company to provide any Evaluation Material or other information to\nyou, but merely defines the duties and obligations of the parties herein. Under no circumstances is the Company obligated to disclose or\nmake available any information, including any Evaluation Material, which in its sole and absolute discretion determines not to disclose.\nNeither this letter agreement nor disclosure of any Evaluation Material to you shall be deemed by implication or otherwise to vest in you\nor your Representatives rights in or to the Evaluation Material, other than the right to use such Evaluation Material solely for the purpose\nof evaluating the Transaction. You understand and acknowledge that neither the Company nor any of its Representatives is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information\nprovided to you by the Company or its Representatives. You understand and acknowledge that you may not rely on the accuracy or\ncompleteness of the Evaluation Material and that you may rely solely on those representations and warranties, if any, that are made to\nyou in a definitive agreement regarding the Transaction when, as and if it is executed, subject to such limitations and restrictions as may\nbe specified in such definitive agreement. Neither the Company nor any of its affiliates or Representatives, nor any of our respective\nofficers, directors, employees, agents or controlling persons (within the meaning of the 1934 Act) shall have any liability to you or any\nother person (including, without limitation, any of your Representatives) resulting from your receipt or use of the Evaluation Material,\nunless specified in a definitive agreement. You acknowledge that the Company and its Representatives shall be free to take such actions\nregarding any possible transaction and for the dissemination of Evaluation Material which they in their sole discretion shall determine\nincluding, without limitation, negotiating with any other party and entering into a definitive transaction agreement with any other party\nwithout prior notice to you or any other person or discontinuing discussions or negotiations with you or any other party at any time for\nany reason or for no reason. Negotiations or agreement by us with any third party will not relieve either party or its Representatives from\nits obligations hereunder.\nThe parties agree that unless and until a definitive agreement between the Company and you with respect to a Transaction has been\nexecuted and delivered, neither party will not be under any legal obligation of any kind whatsoever with respect to such Transaction or\nany other transaction by virtue of (i) this letter agreement or (ii) any written or oral expression with respect to such Transaction by either\nparty’s Representatives except, in the case of this letter agreement, for the matters specifically agreed to herein. For purposes of this\nletter agreement, the term “definitive agreement” does not include an executed letter of intent or any other preliminary written\nagreement, nor does it include any written or oral acceptance of any offer or bid by you.\n12. 13. 14. 15. 16. 17. You agree that the Company has not granted you any license, copyright, patent, trade secret or similar right with respect to any of the\nEvaluation Material or any other information provided to you by the Company or its Representatives.\nAt the request of the Company in its sole discretion and for any reason, or on your own initiative if you decide not to proceed with a\nTransaction (of which decision you will promptly notify the Company), you will promptly (and in any event no later than 10 business\ndays after the request therefor), at your sole discretion, (a) return to us all of the Evaluation Material, including all copies, reproductions,\nsummaries, analyses or extracts thereof or based thereon in your possession or in the possession of any of your Representatives or\n(b) destroy, unless such destruction is commercially unreasonable and/or in violation of your internal compliance obligations, all such\nEvaluation Material in your possession or in the possession of any of your Representatives (such destruction to be certified promptly in\nwriting to us by your authorized officer supervising such destruction). Notwithstanding any such return or destruction of the Evaluation\nMaterial, you and your Representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder;\nprovided that to the extent any Evaluation Material is retained by you because its return or destruction would be commercially\nunreasonable and/or in violation of your internal compliance obligations, then the non-use and non-disclosure provisions of this letter\nagreement shall (notwithstanding paragraph 22 below) specifically survive for so long as such Evaluation Material is retained by you or\nyour Representatives.\nThe parties acknowledge that remedies at law may be inadequate to protect the parties against any actual or threatened breach of this\nletter agreement by the counterparty or by its Representatives and, without prejudice to the rights and remedies otherwise available to the\nallegedly harmed party, each party agrees that the allegedly harmed party shall be entitled to equitable relief (including specific\nperformance or injunction) in the allegedly harmed party’s favor without proof of actual damages. Any equitable relief shall not be\ndeemed to be the exclusive remedy for a breach of this letter agreement, but shall be in addition to all other remedies available at law or\nequity.\nThe validity and interpretation of this letter agreement shall be governed by, and construed and enforced in accordance with, the laws of\nthe State of Delaware applicable to agreements made and to be fully performed therein (excluding the conflicts of laws rules). You\nirrevocably and unconditionally (i) submit to the exclusive jurisdiction of the courts of the State of Delaware for the purpose of any suit,\naction, or other proceeding arising out of or relating to this letter agreement and the transactions contemplated thereby (each a\n“Proceeding”), (ii) agree that all claims in respect of any Proceeding shall be heard and determined exclusively in any such court, and\n(iii) waive, to the fullest extent permitted by law, any immunity you have acquired, or hereafter may acquire, from jurisdiction of any\nsuch court or from any legal process therein, and (iv) agree not to commence any Proceeding other than in such court, and waive, to the\nfullest extent permitted by applicable law, any claim that any such Proceeding brought in any such court has been brought in an\ninconvenient forum.\nIf it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is\ninvalid or unenforceable, (i) the remaining terms and provision hereof shall be unimpaired and shall remain in full force and effect and\n(ii) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes\nclosest to expressing the intention of such invalid or unenforceable term or provision.\nThis Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements,\narrangements and understandings relating to the matters provided for herein. No alteration, waiver, amendment, change or supplement\nhereto shall be binding or effective unless the same is set forth in writing signed by a duly authorized representative of each party and the\nsame may be modified or waived only by a separate letter executed by the Company and you expressly so modifying or waiving such\nagreement.\n18. 19. 20. 21. 22. This Agreement may be executed and delivered either originally, by facsimile of the signature page or by e-mail of a scanned copy of the\nsignature page in Adobe Acrobat PDF format, and in one or more counterparts, all of which taken together shall constitute one and the\nsame instrument.\nThis Agreement will be binding upon the parties and its Representatives and its respective heirs, successors and assigns, and will inure to\nthe benefit of the counterparty and its Representatives and their respective heirs, successors and assigns. Neither party may assign any of\nits rights or obligations hereunder; provided, that, the Company reserves the right to assign its rights, powers and privileges under this\nletter agreement (including, without limitation, the right to enforce the terms of this letter agreement) to any person who enters into a\ntransaction to acquire control of the Company or substantially all of its assets.\nEach party shall be responsible for its own costs and expenses incurred in connection with your evaluation of the Transaction.\nYou acknowledge that the Evaluation Material you receive may include technical data developed in the United States, and therefore, you\nshall not export or re-export any Evaluation Material without full compliance with all applicable export laws.\nIf the parties proceed with the contemplated Transaction, the provisions of this letter agreement shall be superseded by the agreements\ngoverning the contemplated Transaction. In any event, the obligations of the parties and their Representatives set forth herein shall\nterminate three (3) years after the date hereof, provided that any provisions that survive such termination shall continue to survive,\nincluding the last sentence of paragraph 13 hereof.\n[Signature page follows]\nThis Agreement is being delivered to you in duplicate. Kindly execute and return one copy of this letter, which will constitute our Agreement with respect to the subject matter of this letter. Confirmed and Agreed to\nthis 6t day of November 2009\nHID GLOBAL CORPORATION\nBy: /s/ Timothy B. Moxon\nName: Tim Moxon\nTitle Director, M&A\nVery truly yours,\nLASERCARD CORPORATION\nBy: /s/ Robert T. DeVincenzi\nName: R.T. DeVincenzi\nTitle CEO	EX-99.(D)(3) 9 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nNovember 6, 2009\nHID Global Corporation\n15370 Barranca Parkway\nIrvine, CA 92618\nAttention: Tim Moxon, Director, Mergers & Acquisitions\nDear HID Global Corporation:\nIn connection with your consideration of a possible transaction with LaserCard Corporation (the "Company") (a "Transaction"), you have\nrequested the right to review certain non-public information of the Company. In consideration of, and as a condition to, furnishing you with such\ninformation and any other information (whether in oral or written form, electronically stored or otherwise) delivered to you or any of your affiliates\n(as defined in paragraph 5 hereof), directors, officers, employees, legal or financial advisors, agents, representatives or "controlling persons" (within\nthe meaning of the Securities Exchange Act of 1934, as amended (the "1934 Act")) (such persons with respect to any person being herein referred\nto\ncollectively as that person's "Representatives") by us or our Representatives (such information, whether in written, oral, electronic or other form\nand whether prepared or made available to you before, on or after the date hereof, as well as any notes, analyses, compilations, studies, documents or\nother materials prepared by or on behalf of you or your Representatives which contain, are based on, derived from or otherwise reflect in whole or in\npart such information, in whatever form maintained or derived, collectively being referred to herein as "Evaluation Material") in connection with\nyour consideration of the Transaction, as well as a condition to further discussions among the parties, the parties agree, as follows:\n1.\nYou and your Representatives (i) will use the Evaluation Material solely for the purpose of evaluating the Transaction with the Company\nby you or your affiliates, and (ii) will keep the Evaluation Material strictly confidential and will not (except as required by applicable\nlaw,\nregulation,\nlegal\nprocess,\ncivil\nor\nregulatory\ninvestigative\ndemand\nor\nother\nsimilar\nprocess,\nand\nin\nsuch\ncase\nonly\nin\ncompliance\nwith\nparagraph 3 below), without the Company's prior written consent, disclose any of the Evaluation Material to any person, except that the\nEvaluation Material (or portions thereof) may be disclosed to those of your Representatives who need to know such information solely\nfor the purpose of evaluating the Transaction with the Company (provided that prior to such disclosure your Representatives will be\ninformed of the confidential nature of the Evaluation Material and shall agree to be bound by this letter agreement to the same extent as\nif they were parties thereto). You agree to be responsible for any breach of this letter agreement by your Representatives, and that the\nCompany shall be entitled to directly enforce such agreement against you (it being understood that such responsibility shall be in\naddition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such\nbreach). You shall secure and safeguard any and all information, documents, work in process, and work product that embodies\nEvaluation Material to reasonably restrict access and prevent unauthorized use and/or disclosure. You further agree that you will\nmaintain reasonable procedures to protect the secrecy of and prevent accidental or other loss or unauthorized use of any Evaluation\nMaterial. You shall reproduce the Company's proprietary rights notices on any copies of Evaluation Material, in the same manner\nin\nwhich such notices were set forth in or on the original. You shall not reverse engineer, disassemble or decompile any prototypes,\nsoftware or other tangible objects that embody Evaluation Material.\nThe parties recognize and acknowledge the competitive value of the Transaction Information (as such term is defined in paragraph 4\nhereof) and Evaluation Material and the damage that could result to the Company if the Transaction Information or Evaluation Material\nwere used or disclosed except as authorized by this letter agreement. You understand that some Evaluation Material deemed\ncompetitively sensitive may be designated for review solely by your outside advisors or by those of your employees whose\nresponsibilities do not include contacting customers or potential customers or the determination of product pricing, and you agree to, and\nto cause your Representatives to, abide by such designation.\n2.\nThe term "Evaluation Material" does not include any information which (1) at the time of disclosure or thereafter is generally known by\nthe public (other than as a result of its disclosure by you or your Representatives), (ii) was or becomes available to you on a non-\nconfidential basis from a person not known by you (after reasonable inquiry) to be bound by a confidentiality agreement with the\nCompany or its Representatives or who is not known by you (after reasonable inquiry) to be prohibited from transmitting the information\nto you, (iii) is within your possession prior to it being furnished to you, provided that the person providing such information was not\nknown by you (after reasonable inquiry) to be bound by a confidentiality agreement or obligation with or to the Company or its\nRepresentatives or (iii) was independently developed by you or your Representatives without violation of any of your obligations under\nthis letter agreement and without any use of or reference to any Evaluation Material. As used in this letter agreement, the term "person"\nshall be broadly interpreted to include, without limitation, any corporation, company, partnership, limited liability company, group,\nassociation or other entity or individual, acting individually or together.\n3.\nIn the event that either party or its Representatives receives a request or is required to disclose any Transaction Information (as defined\nbelow) or you or your Representatives receive a request or are required to disclose all or any part of the information contained in the\nEvaluation Material pursuant to the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a\ngovernmental or regulatory body or pursuant to a civil investigative demand or similar process (including, without limitation, by oral\nquestions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil or regulatory investigative\ndemand or other similar process), the parties agree to (i) where lawful promptly notify the counterparty of the existence, terms and\ncircumstances surrounding such a request, so that the party seeking to limit disclosure may seek an appropriate protective order, at the\nsole expense of the party seeking to limit disclosure, and/or waive compliance with the provisions of this letter agreement (and, if the\nparty seeking to limit disclosure seeks such an order, to provide such cooperation as the party seeking to limit disclosure shall reasonably\nrequest), (ii) if such protective order or remedy is not obtained or the party seeking to limit disclosure waives compliance with the\nprovisions of this letter agreement, and if disclosure of such information is required upon the advice of counsel, disclose only such\ninformation which the disclosing party is advised by its counsel is legally required to be disclosed and (iii) exercise commercially\nreasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such information and\ncooperate fully with any efforts of the party seeking to limit disclosure to achieve the same, at the sole expense of the party seeking to\nlimit disclosure.\n4.\nUnless otherwise required by law in the opinion of counsel, neither party nor its Representatives will, without the counterparty's prior\nwritten consent, disclose to any person the existence of this letter agreement or provide a copy of this letter agreement to any person,\ndisclose to any person the fact that the Company is considering a possible transaction between the parties, disclose to any person either\nthe fact that discussions or negotiations are taking place concerning a Transaction between the parties, or any of the terms, conditions or\nother facts with respect to any such Transaction, including, without limitation, the status thereof and the fact that the Evaluation Material\nhas been made available to you (the information referred to in this paragraph 4, the "Transaction Information").\n5.\nYou agree that for a period of two years from the date of this letter agreement, neither you nor any of your affiliates will, directly or\nindirectly, solicit for purposes of employment as an employee or retention as' a contractor, any of the officers or senior level employees,\nidentified in connection with your evaluation of the Transaction, of the Company or its affiliates, or otherwise solicit, induce or\notherwise encourage any officer or senior level employee of the Company or its affiliates to discontinue, cancel or refrain from entering\ninto any relationship (contractual or otherwise) with the Company or any affiliate of the Company, without the Company's prior written\nconsent; provided,\nhowever, you shall not be prohibited from employing any such person who, without any direct or indirect solicitation by you, contacts\nyou on his or her own initiative, including without limitation as a result of any general solicitation for employment made to the public.\nGeneralized searches for employees in the ordinary course of business consistent with past practice through the use of advertisements in\nthe media (including the trade media) or Web site job postings shall not constitute solicitation for purposes of this Section. The\nengagement of a recruiting firm to the extent that such firm's efforts are not specifically targeted at any officer or employee of the\nCompany shall also not constitute solicitation for purposes of this Section. For purposes of this letter agreement, "affiliate" means as to\nany person, any other person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such person or\nthat owns more than 50% of the voting stock of such person. The term "control" (including, with correlative meanings, the terms\n"controlled by" and "under common control with"), as applied to any person, means the possession, direct or indirect, of the power to\ndirect or cause the direction of the management and policies of such person, whether through the ownership of voting securities or other\nownership interest, by contract or otherwise.\n6.\nIt is understood that the Company or its Representatives may arrange for appropriate contacts for due diligence purposes and, other than\ncommunication with such contacts regarding due diligence matters, until the earlier of (i) the consummation of a transaction between the\nCompany and you, or (ii) two (2) years from the date of this letter agreement, you will not, and will cause your Representatives not to,\ninitiate or maintain contact with any officer, director, employee, agent, affiliate, supplier, distributor, broker or customer of the Company\nor any of its subsidiaries regarding the Company or any of its subsidiaries or their respective operations, assets, prospects or finances, or\nseek any information in connection with a possible Transaction from such person, except for communications in the ordinary course of\nthe parties' business or with the express permission of the Company.\n7.\nYou hereby acknowledge that Evaluation Material is being furnished to you in consideration of your agreement, and you hereby agree,\nthat for a period of two (2) years from the date of this letter agreement, you and your Representatives shall not, directly or indirectly, and\nyou shall cause any person or entity controlled by you not to, without the prior written consent of the Company, directly or indirectly,\nalone or jointly or in concert with any other person (including by providing financing to any other person), whether publicly or otherwise\n(i) in any manner acquire, agree to acquire or make any proposal to acquire any securities or property of the Company or any of its\naffiliates, (ii) propose to enter into any merger, consolidation, recapitalization, business combination, partnership, joint venture or other\nsimilar transaction involving the Company or any of its affiliates, (iii) make, or in any way participate in any "solicitation" of "proxies"\n(as such terms are used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person\nwith respect to the voting of any voting securities of the Company or any of its affiliates, (iv) form, join or in any way participate in a\n"group" (within the meaning of Section 13(d)(3) of the 1934 Act) with respect to any of the foregoing or with respect to any voting\nsecurities of the Company or any of its affiliates, (v) otherwise act, alone or in concert with others, to seek to control or influence the\nmanagement, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the\nforegoing, or (vii) advise, assist or encourage any other persons in connection with any of the foregoing. You also agree during such two-\nyear period not to (x) request the Company (or its Representatives), directly or indirectly, to amend or waive any provision of this\nparagraph 7 (including this sentence) or otherwise consent to any action inconsistent with any provision of this paragraph 7 (including\nthis sentence), (y) take any action (including, without limitation, any request or other communication to the Company or its\nRepresentatives regarding any amendment or waiver of any provision of this paragraph 7) which might require the Company or any of\nits\naffiliates to make a public announcement regarding this letter agreement, any of the matters referred to in this paragraph 7 or the\npossibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, a Transaction, or\n(z) communicate with the Company's shareholders regarding the subject matter of this letter agreement. Notwithstanding the foregoing,\nnothing shall prohibit you from submitting a proposal for a transaction to management and the Board of Directors of the Company. In\naddition, in the event that the Board of Directors of the Company shall approve any of the actions referred to in clause (ii) above, then\nnone of the prohibitions of this paragraph 7 shall apply to the matters described in the clause (ii) above with respect to you and such\napproved actions.\n8.\nYou acknowledge that you are aware, and that you will advise your Representatives who receive the Evaluation Material, that the United\nStates securities laws prohibit any person who has material, non-public information concerning the matters which are the subject of this\nletter agreement from purchasing or selling securities of the Company (and options, warrants and rights relating thereto) or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person\nincluding, without limitation, any of your Representatives, is likely to purchase or sell such securities; and you agree to fully comply\nwith such laws.\n9.\nTo the extent that Evaluation Material may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmenta investigations, the parties understand and\nagree\nthat they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the\nsharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material\nprovided by the Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine.\n10. This Agreement does not constitute or create any obligation of the Company to provide any Evaluation Material or other information to\nyou, but merely defines the duties and obligations of the parties herein. Under no circumstances is the Company obligated to disclose or\nmake available any information, including any Evaluation Material, which in its sole and absolute discretion determines not to disclose.\nNeither this letter agreement nor disclosure of any Evaluation Material to you shall be deemed by implication or otherwise to vest in you\nor your Representatives rights in or to the Evaluation Material, other than the right to use such Evaluation Material solely for the purpose\nof evaluating the Transaction. You understand and acknowledge that neither the Company nor any of its Representatives is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information\nprovided to you by the Company or its Representatives. You understand and acknowledge that you may not rely on the accuracy or\ncompleteness\nof\nthe\nEvaluation\nMaterial\nand\nthat\nyou\nmay\nrely\nsolely\non\nthose\nrepresentations\nand\nwarranties,\nif\nany,\nthat\nare\nmade\nto\nyou in a definitive agreement regarding the Transaction when, as and if it is executed, subject to such limitations and restrictions as may\nbe specified in such definitive agreement. Neither the Company nor any of its affiliates or Representatives, nor any of our respective\nofficers, directors, employees, agents or controlling persons (within the meaning of the 1934 Act) shall have any liability to you or any\nother person (including, without limitation, any of your Representatives) resulting from your receipt or use of the Evaluation Material,\nunless specified in a definitive agreement. You acknowledge that the Company and its Representatives shall be free to take such actions\nregarding any possible transaction and for the dissemination of Evaluation Material which they in their sole discretion shall determine\nincluding, without limitation, negotiating with any other party and entering into a definitive transaction agreement with any other party\nwithout prior notice to you or any other person or discontinuing discussions or negotiations with you or any other party at any time for\nany reason or for no reason. Negotiations or agreement by us with any third party will not relieve either party or its Representatives from\nits obligations hereunder.\n11. The parties agree that unless and until a definitive agreement between the Company and you with respect to a Transaction has been\nexecuted and delivered, neither party will not be under any legal obligation of any kind whatsoever with respect to such Transaction or\nany other transaction by virtue of (i) this letter agreement or (ii) any written or oral expression with respect to such Transaction by either\nparty's Representatives except, in the case of this letter agreement, for the matters specifically agreed to herein. For purposes of this\nletter agreement, the term "definitive agreement" does not include an executed letter of intent or any other preliminary written\nagreement, nor does it include any written or oral acceptance of any offer or bid by you.\n12. You agree that the Company has not granted you any license, copyright, patent, trade secret or similar right with respect to any of the\nEvaluation Material or any other information provided to you by the Company or its Representatives.\n13.\nAt the request of the Company in its sole discretion and for any reason, or on your own initiative if you decide not to proceed with a\nTransaction (of which decision you will promptly notify the Company), you will promptly (and in any event no later than 10 business\ndays after the request therefor), at your sole discretion, (a) return to us all of the Evaluation Material, including all copies, reproductions,\nsummaries, analyses or extracts thereof or based thereon in your possession or in the possession of any of your Representatives or\n(b) destroy, unless such destruction is commercially unreasonable and/or in violation of your internal compliance obligations, all such\nEvaluation Material in your possession or in the possession of any of your Representatives (such destruction to be certified promptly in\nwriting to us by your authorized officer supervising such destruction). Notwithstanding any such return or destruction of the Evaluation\nMaterial, you and your Representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder;\nprovided that to the extent any Evaluation Material is retained by you because its return or destruction would be commercially\nunreasonable and/or in violation of your internal compliance obligations, then the non-use and non-disclosure provisions of this letter\nagreement shall (notwithstanding paragraph 22 below) specifically survive for so long as such Evaluation Material is retained by you or\nyour Representatives.\n14. The parties acknowledge that remedies at law may be inadequate to protect the parties against any actual or threatened breach of this\nletter agreement by the counterparty or by its Representatives and, without prejudice to the rights and remedies otherwise available\nto\nthe\nallegedly harmed party, each party agrees that the allegedly harmed party shall be entitled to equitable relief (including specific\nperformance or injunction) in the allegedly harmed party's favor without proof of actual damages. Any equitable relief shall not be\ndeemed to be the exclusive remedy for a breach of this letter agreement, but shall be in addition to all other remedies available at law\nor\nequity.\n15. The validity and interpretation of this letter agreement shall be governed by, and construed and enforced in accordance with, the laws of\nthe State of Delaware applicable to agreements made and to be fully performed therein (excluding the conflicts of laws rules). You\nirrevocably and unconditionally (i) submit to the exclusive jurisdiction of the courts of the State of Delaware for the purpose of any suit,\naction, or other proceeding arising out of or relating to this letter agreement and the transactions contemplated thereby (each a\n"Proceeding") (ii) agree that all claims in respect of any Proceeding shall be heard and determined exclusively in any such court, and\n(iii) waive, to the fullest extent permitted by law, any immunity you have acquired, or hereafter may acquire, from jurisdiction of any\nsuch court or from any legal process therein, and (iv) agree not to commence any Proceeding other than in such court, and waive, to the\nfullest extent permitted by applicable law, any claim that any such Proceeding brought in any such court has been brought in an\ninconvenient forum.\n16. If it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is\ninvalid or unenforceable, (i) the remaining terms and provision hereof shall be unimpaired and shall remain in full force and effect and\n(ii) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes\nclosest to expressing the intention of such invalid or unenforceable term or provision.\n17.\nThis Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements,\narrangements and understandings relating to the matters provided for herein. No alteration, waiver, amendment, change or supplement\nhereto shall be binding or effective unless the same is set forth in writing signed by a duly authorized representative of each party and\nthe\nsame may be modified or waived only by a separate letter executed by the Company and you expressly so modifying or waiving such\nagreement.\n18.\nThis Agreement may be executed and delivered either originally, by facsimile of the signature page or by e-mail of a scanned copy of the\nsignature page in Adobe Acrobat PDF format, and in one or more counterparts, all of which taken together shall constitute one and the\nsame instrument.\n19.\nThis Agreement will be binding upon the parties and its Representatives and its respective heirs, successors and assigns, and will inure to\nthe benefit of the counterparty and its Representatives and their respective heirs, successors and assigns. Neither party may assign any of\nits rights or obligations hereunder; provided, that, the Company reserves the right to assign its rights, powers and privileges under this\nletter agreement (including, without limitation, the right to enforce the terms of this letter agreement) to any person who enters into a\ntransaction to acquire control of the Company or substantially all of its assets.\n20. Each party shall be responsible for its own costs and expenses incurred in connection with your evaluation of the Transaction.\n21. You acknowledge that the Evaluation Material you receive may include technical data developed in the United States, and therefore, you\nshall not export or re-export any Evaluation Material without full compliance with all applicable export laws.\n22. If the parties proceed with the contemplated Transaction, the provisions of this letter agreement shall be superseded by the agreements\ngoverning the contemplated Transaction. In any event, the obligations of the parties and their Representatives set forth herein shall\nterminate three (3) years after the date hereof, provided that any provisions that survive such termination shall continue to survive,\nincluding the last sentence of paragraph 13 hereof.\n[Signature page follows]\nThis Agreement is being delivered to you in duplicate. Kindly execute and return one copy of this letter, which will constitute our Agreement\nwith respect to the subject matter of this letter.\nVery truly yours,\nLASERCARD CORPORATION\nBy: /s/ Robert T. eVincenzi\nName:\nR. T. DeVincenzi\nTitle\nCEO\nConfirmed and Agreed to\nthis 6th day of November 2009\nHID GLOBAL CORPORATION\nBy:\n/s/ Timothy B. Moxon\nName:\nTim Moxon\nTitle\nDirector, M&A	EX-99.(D)(3) 9 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nNovember 6, 2009\nHID Global Corporation\n15370 Barranca Parkway\nIrvine, CA 92618\nAttention: Tim Moxon, Director, Mergers & Acquisitions\nDear HID Global Corporation:\nIn connection with your consideration of a possible transaction with LaserCard Corporation (the “Company”) (a “Transaction”), you have\nrequested the right to review certain non-public information of the Company. In consideration of, and as a condition to, furnishing you with such\ninformation and any other information (whether in oral or written form, electronically stored or otherwise) delivered to you or any of your affiliates\n(as defined in paragraph 5 hereof), directors, officers, employees, legal or financial advisors, agents, representatives or “controlling persons” (within\nthe meaning of the Securities Exchange Act of 1934, as amended (the “1934 Act”)) (such persons with respect to any person being herein referred to\ncollectively as that person’s “Representatives”) by us or our Representatives (such information, whether in written, oral, electronic or other form\nand whether prepared or made available to you before, on or after the date hereof, as well as any notes, analyses, compilations, studies, documents or\nother materials prepared by or on behalf of you or your Representatives which contain, are based on, derived from or otherwise reflect in whole or in\npart such information, in whatever form maintained or derived, collectively being referred to herein as “Evaluation Material”) in connection with\nyour consideration of the Transaction, as well as a condition to further discussions among the parties, the parties agree, as follows:\n1. You and your Representatives (i) will use the Evaluation Material solely for the purpose of evaluating the Transaction with the Company\nby you or your affiliates, and (ii) will keep the Evaluation Material strictly confidential and will not (except as required by applicable\nlaw, regulation, legal process, civil or regulatory investigative demand or other similar process, and in such case only in compliance with\nparagraph 3 below), without the Company’s prior written consent, disclose any of the Evaluation Material to any person, except that the\nEvaluation Material (or portions thereof) may be disclosed to those of your Representatives who need to know such information solely\nfor the purpose of evaluating the Transaction with the Company (provided that prior to such disclosure your Representatives will be\ninformed of the confidential nature of the Evaluation Material and shall agree to be bound by this letter agreement to the same extent as\nif they were parties thereto). You agree to be responsible for any breach of this letter agreement by your Representatives, and that the\nCompany shall be entitled to directly enforce such agreement against you (it being understood that such responsibility shall be in\naddition to and not by way of limitation of any right or remedy the Company may have against your Representatives with respect to such\nbreach). You shall secure and safeguard any and all information, documents, work in process, and work product that embodies\nEvaluation Material to reasonably restrict access and prevent unauthorized use and/or disclosure. You further agree that you will\nmaintain reasonable procedures to protect the secrecy of and prevent accidental or other loss or unauthorized use of any Evaluation\nMaterial. You shall reproduce the Company’s proprietary rights notices on any copies of Evaluation Material, in the same manner in\nwhich such notices were set forth in or on the original. You shall not reverse engineer, disassemble or decompile any prototypes,\nsoftware or other tangible objects that embody Evaluation Material.\nThe parties recognize and acknowledge the competitive value of the Transaction Information (as such term is defined in paragraph 4\nhereof) and Evaluation Material and the damage that could result to the Company if the Transaction Information or Evaluation Material\nwere used or disclosed except as authorized by this letter agreement. You understand that some Evaluation Material deemed\ncompetitively sensitive may be designated for review solely by your outside advisors or by those of your employees whose\nresponsibilities do not include contacting customers or potential customers or the determination of product pricing, and you agree to, and\nto cause your Representatives to, abide by such designation.\n2. The term “Evaluation Material” does not include any information which (1) at the time of disclosure or thereafter is generally known by\nthe public (other than as a result of its disclosure by you or your Representatives), (ii) was or becomes available to you on a non-\nconfidential basis from a person not known by you (after reasonable inquiry) to be bound by a confidentiality agreement with the\nCompany or its Representatives or who is not known by you (after reasonable inquiry) to be prohibited from transmitting the information\nto you, (iii) is within your possession prior to it being furnished to you, provided that the person providing such information was not\nknown by you (after reasonable inquiry) to be bound by a confidentiality agreement or obligation with or to the Company or its\nRepresentatives or (iii) was independently developed by you or your Representatives without violation of any of your obligations under\nthis letter agreement and without any use of or reference to any Evaluation Material. As used in this letter agreement, the term “person”\nshall be broadly interpreted to include, without limitation, any corporation, company, partnership, limited liability company, group,\nassociation or other entity or individual, acting individually or together.\n3. In the event that either party or its Representatives receives a request or is required to disclose any Transaction Information (as defined\nbelow) or you or your Representatives receive a request or are required to disclose all or any part of the information contained in the\nEvaluation Material pursuant to the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a\ngovernmental or regulatory body or pursuant to a civil investigative demand or similar process (including, without limitation, by oral\nquestions, interrogatories, other requests for information or documents in legal proceedings, subpoena, civil or regulatory investigative\ndemand or other similar process), the parties agree to (i) where lawful , promptly notify the counterparty of the existence, terms and\ncircumstances surrounding such a request, so that the party seeking to limit disclosure may seek an appropriate protective order, at the\nsole expense of the party seeking to limit disclosure, and/or waive compliance with the provisions of this letter agreement (and, if the\nparty seeking to limit disclosure seeks such an order, to provide such cooperation as the party seeking to limit disclosure shall reasonably\nrequest), (ii) if such protective order or remedy is not obtained or the party seeking to limit disclosure waives compliance with the\nprovisions of this letter agreement, and if disclosure of such information is required upon the advice of counsel, disclose only such\ninformation which the disclosing party is advised by its counsel is legally required to be disclosed and (iii) exercise commercially\nreasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such information and\ncooperate fully with any efforts of the party seeking to limit disclosure to achieve the same, at the sole expense of the party seeking to\nlimit disclosure.\n4. Unless otherwise required by law in the opinion of counsel, neither party nor its Representatives will, without the counterparty’s prior\nwritten consent, disclose to any person the existence of this letter agreement or provide a copy of this letter agreement to any person,\ndisclose to any person the fact that the Company is considering a possible transaction between the parties, disclose to any person either\nthe fact that discussions or negotiations are taking place concerning a Transaction between the parties, or any of the terms, conditions or\nother facts with respect to any such Transaction, including, without limitation, the status thereof and the fact that the Evaluation Material\nhas been made available to you (the information referred to in this paragraph 4, the “Transaction Information”).\n5. You agree that for a period of two years from the date of this letter agreement, neither you nor any of your affiliates will, directly or\nindirectly, solicit for purposes of employment as an employee or retention as’ a contractor, any of the officers or senior level employees,\nidentified in connection with your evaluation of the Transaction, of the Company or its affiliates, or otherwise solicit, induce or\notherwise encourage any officer or senior level employee of the Company or its affiliates to discontinue, cancel or refrain from entering\ninto any relationship (contractual or otherwise) with the Company or any affiliate of the Company, without the Company’s prior written\nconsent; provided,\nhowever, you shall not be prohibited from employing any such person who, without any direct or indirect solicitation by you, contacts\nyou on his or her own initiative, including without limitation as a result of any general solicitation for employment made to the public.\nGeneralized searches for employees in the ordinary course of business consistent with past practice through the use of advertisements in\nthe media (including the trade media) or Web site job postings shall not constitute solicitation for purposes of this Section. The\nengagement of a recruiting firm to the extent that such firm’s efforts are not specifically targeted at any officer or employee of the\nCompany shall also not constitute solicitation for purposes of this Section. For purposes of this letter agreement, “affiliate” means as to\nany person, any other person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such person or\nthat owns more than 50% of the voting stock of such person. The term “control” (including, with correlative meanings, the terms\n“controlled by” and “under common control with”), as applied to any person, means the possession, direct or indirect, of the power to\ndirect or cause the direction of the management and policies of such person, whether through the ownership of voting securities or other\nownership interest, by contract or otherwise.\n6. It is understood that the Company or its Representatives may arrange for appropriate contacts for due diligence purposes and, other than\ncommunication with such contacts regarding due diligence matters, until the earlier of (i) the consummation of a transaction between the\nCompany and you, or (ii) two (2) years from the date of this letter agreement, you will not, and will cause your Representatives not to,\ninitiate or maintain contact with any officer, director, employee, agent, affiliate, supplier, distributor, broker or customer of the Company\nor any of its subsidiaries regarding the Company or any of its subsidiaries or their respective operations, assets, prospects or finances, or\nseek any information in connection with a possible Transaction from such person, except for communications in the ordinary course of\nthe parties’ business or with the express permission of the Company.\n7. You hereby acknowledge that Evaluation Material is being furnished to you in consideration of your agreement, and you hereby agree,\nthat for a period of two (2) years from the date of this letter agreement, you and your Representatives shall not, directly or indirectly, and\nyou shall cause any person or entity controlled by you not to, without the prior written consent of the Company, directly or indirectly,\nalone or jointly or in concert with any other person (including by providing financing to any other person), whether publicly or otherwise\n(i) in any manner acquire, agree to acquire or make any proposal to acquire any securities or property of the Company or any of its\naffiliates, (ii) propose to enter into any merger, consolidation, recapitalization, business combination, partnership, joint venture or other\nsimilar transaction involving the Company or any of its affiliates, (iii) make, or in any way participate in any “solicitation” of “proxies”\n(as such terms are used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person\nwith respect to the voting of any voting securities of the Company or any of its affiliates, (iv) form, join or in any way participate in a\n“group” (within the meaning of Section 13(d)(3) of the 1934 Act) with respect to any of the foregoing or with respect to any voting\nsecurities of the Company or any of its affiliates, (v) otherwise act, alone or in concert with others, to seek to control or influence the\nmanagement, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the\nforegoing, or (vii) advise, assist or encourage any other persons in connection with any of the foregoing. You also agree during such two-\nyear period not to (x) request the Company (or its Representatives), directly or indirectly, to amend or waive any provision of this\nparagraph 7 (including this sentence) or otherwise consent to any action inconsistent with any provision of this paragraph 7 (including\nthis sentence), (y) take any action (including, without limitation, any request or other communication to the Company or its\nRepresentatives regarding any amendment or waiver of any provision of this paragraph 7) which might require the Company or any of\nits affiliates to make a public announcement regarding this letter agreement, any of the matters referred to in this paragraph 7 or the\npossibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, a Transaction, or\n(z) communicate with the Company’s shareholders regarding the subject matter of this letter agreement. Notwithstanding the foregoing,\nnothing shall prohibit you from submitting a proposal for a transaction to management and the Board of Directors of the Company. In\naddition, in the event that the Board of Directors of the Company shall approve any of the actions referred to in clause (ii) above, then\nnone of the prohibitions of this paragraph 7 shall apply to the matters described in the clause (ii) above with respect to you and such\napproved actions.\n8. You acknowledge that you are aware, and that you will advise your Representatives who receive the Evaluation Material, that the United\nStates securities laws prohibit any person who has material, non-public information concerning the matters which are the subject of this\nletter agreement from purchasing or selling securities of the Company (and options, warrants and rights relating thereto) or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person\nincluding, without limitation, any of your Representatives, is likely to purchase or sell such securities; and you agree to fully comply\nwith such laws.\n9. To the extent that Evaluation Material may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree\nthat they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the\nsharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material\nprovided by the Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine.\n10. This Agreement does not constitute or create any obligation of the Company to provide any Evaluation Material or other information to\nyou, but merely defines the duties and obligations of the parties herein. Under no circumstances is the Company obligated to disclose or\nmake available any information, including any Evaluation Material, which in its sole and absolute discretion determines not to disclose.\nNeither this letter agreement nor disclosure of any Evaluation Material to you shall be deemed by implication or otherwise to vest in you\nor your Representatives rights in or to the Evaluation Material, other than the right to use such Evaluation Material solely for the purpose\nof evaluating the Transaction. You understand and acknowledge that neither the Company nor any of its Representatives is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information\nprovided to you by the Company or its Representatives. You understand and acknowledge that you may not rely on the accuracy or\ncompleteness of the Evaluation Material and that you may rely solely on those representations and warranties, if any, that are made to\nyou in a definitive agreement regarding the Transaction when, as and if it is executed, subject to such limitations and restrictions as may\nbe specified in such definitive agreement. Neither the Company nor any of its affiliates or Representatives, nor any of our respective\nofficers, directors, employees, agents or controlling persons (within the meaning of the 1934 Act) shall have any liability to you or any\nother person (including, without limitation, any of your Representatives) resulting from your receipt or use of the Evaluation Material,\nunless specified in a definitive agreement. You acknowledge that the Company and its Representatives shall be free to take such actions\nregarding any possible transaction and for the dissemination of Evaluation Material which they in their sole discretion shall determine\nincluding, without limitation, negotiating with any other party and entering into a definitive transaction agreement with any other party\nwithout prior notice to you or any other person or discontinuing discussions or negotiations with you or any other party at any time for\nany reason or for no reason. Negotiations or agreement by us with any third party will not relieve either party or its Representatives from\nits obligations hereunder.\n11. The parties agree that unless and until a definitive agreement between the Company and you with respect to a Transaction has been\nexecuted and delivered, neither party will not be under any legal obligation of any kind whatsoever with respect to such Transaction or\nany other transaction by virtue of (i) this letter agreement or (ii) any written or oral expression with respect to such Transaction by either\nparty’s Representatives except, in the case of this letter agreement, for the matters specifically agreed to herein. For purposes of this\nletter agreement, the term “definitive agreement” does not include an executed letter of intent or any other preliminary written\nagreement, nor does it include any written or oral acceptance of any offer or bid by you.\n12. You agree that the Company has not granted you any license, copyright, patent, trade secret or similar right with respect to any of the\nEvaluation Material or any other information provided to you by the Company or its Representatives.\n13. At the request of the Company in its sole discretion and for any reason, or on your own initiative if you decide not to proceed with a\nTransaction (of which decision you will promptly notify the Company), you will promptly (and in any event no later than 10 business\ndays after the request therefor), at your sole discretion, (a) return to us all of the Evaluation Material, including all copies, reproductions,\nsummaries, analyses or extracts thereof or based thereon in your possession or in the possession of any of your Representatives or\n(b) destroy, unless such destruction is commercially unreasonable and/or in violation of your internal compliance obligations, all such\nEvaluation Material in your possession or in the possession of any of your Representatives (such destruction to be certified promptly in\nwriting to us by your authorized officer supervising such destruction). Notwithstanding any such return or destruction of the Evaluation\nMaterial, you and your Representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder;\nprovided that to the extent any Evaluation Material is retained by you because its return or destruction would be commercially\nunreasonable and/or in violation of your internal compliance obligations, then the non-use and non-disclosure provisions of this letter\nagreement shall (notwithstanding paragraph 22 below) specifically survive for so long as such Evaluation Material is retained by you or\nyour Representatives.\n14. The parties acknowledge that remedies at law may be inadequate to protect the parties against any actual or threatened breach of this\nletter agreement by the counterparty or by its Representatives and, without prejudice to the rights and remedies otherwise available to the\nallegedly harmed party, each party agrees that the allegedly harmed party shall be entitled to equitable relief (including specific\nperformance or injunction) in the allegedly harmed party’s favor without proof of actual damages. Any equitable relief shall not be\ndeemed to be the exclusive remedy for a breach of this letter agreement, but shall be in addition to all other remedies available at law or\nequity.\n15. The validity and interpretation of this letter agreement shall be governed by, and construed and enforced in accordance with, the laws of\nthe State of Delaware applicable to agreements made and to be fully performed therein (excluding the conflicts of laws rules). You\nirrevocably and unconditionally (i) submit to the exclusive jurisdiction of the courts of the State of Delaware for the purpose of any suit,\naction, or other proceeding arising out of or relating to this letter agreement and the transactions contemplated thereby (each a\n“Proceeding”), (ii) agree that all claims in respect of any Proceeding shall be heard and determined exclusively in any such court, and\n(iii) waive, to the fullest extent permitted by law, any immunity you have acquired, or hereafter may acquire, from jurisdiction of any\nsuch court or from any legal process therein, and (iv) agree not to commence any Proceeding other than in such court, and waive, to the\nfullest extent permitted by applicable law, any claim that any such Proceeding brought in any such court has been brought in an\ninconvenient forum.\n16. If it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is\ninvalid or unenforceable, (i) the remaining terms and provision hereof shall be unimpaired and shall remain in full force and effect and\n(ii) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes\nclosest to expressing the intention of such invalid or unenforceable term or provision.\n17. This Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements,\narrangements and understandings relating to the matters provided for herein. No alteration, waiver, amendment, change or supplement\nhereto shall be binding or effective unless the same is set forth in writing signed by a duly authorized representative of each party and the\nsame may be modified or waived only by a separate letter executed by the Company and you expressly so modifying or waiving such\nagreement.\n18. This Agreement may be executed and delivered either originally, by facsimile of the signature page or by e-mail of a scanned copy of the\nsignature page in Adobe Acrobat PDF format, and in one or more counterparts, all of which taken together shall constitute one and the\nsame instrument.\n19. This Agreement will be binding upon the parties and its Representatives and its respective heirs, successors and assigns, and will inure to\nthe benefit of the counterparty and its Representatives and their respective heirs, successors and assigns. Neither party may assign any of\nits rights or obligations hereunder; provided, that, the Company reserves the right to assign its rights, powers and privileges under this\nletter agreement (including, without limitation, the right to enforce the terms of this letter agreement) to any person who enters into a\ntransaction to acquire control of the Company or substantially all of its assets.\n20. Each party shall be responsible for its own costs and expenses incurred in connection with your evaluation of the Transaction.\n21. You acknowledge that the Evaluation Material you receive may include technical data developed in the United States, and therefore, you\nshall not export or re-export any Evaluation Material without full compliance with all applicable export laws.\n22. If the parties proceed with the contemplated Transaction, the provisions of this letter agreement shall be superseded by the agreements\ngoverning the contemplated Transaction. In any event, the obligations of the parties and their Representatives set forth herein shall\nterminate three (3) years after the date hereof, provided that any provisions that survive such termination shall continue to survive,\nincluding the last sentence of paragraph 13 hereof.\n[Signature page follows]\nThis Agreement is being delivered to you in duplicate. Kindly execute and return one copy of this letter, which will constitute our Agreement\nwith respect to the subject matter of this letter.\nVery truly yours,\nLASERCARD CORPORATION\nBy: /s/ Robert T. DeVincenzi\nName: R. T. DeVincenzi\nTitle\nCEO\nConfirmed and Agreed to\nthis 6 day of November 2009\nHID GLOBAL CORPORATION\nBy:\n/s/ Timothy B. Moxon\nName:\nTim Moxon\nTitle\nDirector, M&A\nth
+8bd2be4b4638f0d148dd4fa541fb71ef.pdf	effective_date jurisdiction party term	EX-10.22 21 dex1022.htm EMPLOYEE CONFIDENTIALITY, INVENTIONS, AND NON-COMPETITION\nAGREEMENT\nExhibit 10.22\nEmployee Confidentiality, Inventions and Non-Competition Agreement\nEMPLOYEE CONFIDENTIALITY, INVENTIONS, AND NON-COMPETITION\nAGREEMENT\nThis Agreement is made and entered into as of May\n, 2001, by and between Corus Pharma, Inc., a Delaware corporation (“Company”)\nand A. Bruce Montgomery, M.D . (“Employee”).\nRECITALS\nWHEREAS, the Company and Employee have entered into a letter agreement dated as of January 26, 2001, (the “Letter Agreement”) pursuant\nto which Employee has assigned to the Company all rights then or thereafter owned in connection with the Invention (as described in the Letter\nAgreement),\nWHEREAS, the Company and Employee wish to memorialize certain obligations of Employee in connection with maintaining confidentiality\nof the Company’s information, and\nWHEREAS, the Company and the Employee wish to memorialize the understanding between the parties that Employee shall assign any future\ninventions made while an employee of the Company.\nAs a condition of Employee’s ongoing employment, and the special training and knowledge that Employee will acquire through his\nemployment with the Company, and of the covenants and conditions contained herein, the parties agree as follows:\n1. Confidential Information.\n1.1 Company Secrets. During and after Employee’s employment with Company, Employee will protect and hold in strictest confidence all\nConfidential Information of Company and its affiliates and business relations. Confidential Information includes, without limitation, Inventions (as\ndefined below), trade secrets, plans, programs, source and object codes, specifications, drawings, diagrams, schematics, formulae, product designs\nand concepts, reports, studies, technical know-how, methods, customer and supplier lists, customer requirements, price lists and policies, budgets,\nprojections, bids, costs, financial reports and information, financing materials, training programs and manuals, and sales and marketing programs,\nmaterials, plans, and strategies. Employee will not disclose, use, copy, publish, summarize or remove from Company’s premises any material\ncontaining or disclosing any portion of the Confidential Information, except as necessary to carry out Employee’s assigned responsibilities as a\nCompany employee. Upon termination of Employee’s employment or the earlier request of the Company, all material containing or disclosing any\nportion of the Confidential Information shall be returned to Company.\n1.2 Third Party Information. During and after Employee’s employment with Company, Employee will not (a) use any confidential and proprietary\ninformation of Company’s customers, vendors, consultants and other parties with whom Company does business (“Third Party Information”) or (b)\ndisclose any Third Party Information to anyone other than Company personnel who need to know the same in connection with their work for\nCompany, without the prior written authorization of an officer of Company. Employee will not bring onto Company’s\nEmployee Confidentiality, Inventions and Non-Competition Agreement\npremises or disclose to Company any unpublished documents or any other property, written or unwritten, of any former employer, which is known\nby Employee to be subject to a covenant of confidentiality, without the prior written consent of such former employer.\n2. Inventions.\n2.1 Assignment. Subject to Section 2.3 below, all ownership and other rights in all works, programs, know-how, techniques, formulas, data, manuals,\ninventions, ideas, designs, manuals, improvements, discoveries, processes and other works of authorship (“Inventions”) developed, conceived or\nreduced to practice by Employee, whether alone or with others, during the term of his/her employment by Company, shall be the exclusive property\nof Company and, to the extent permitted by law, shall be “works for hire” and, in the case of Inventions that relate directly or indirectly to the\nbusiness of the Company, whether or not developed or conceived during regular working hours or at the Company’s facilities. Employee hereby\nirrevocably agrees, subject to Section 2.3 below, to and does hereby sell, assign and transfer to Company or Company’s designee Employee’s entire\nright, title and interest, including moral rights, in and to the Inventions developed, conceived or reduced to practice by Employee during the term of\nhis employment by Company, and any improvements thereon. Employee will assist Company as reasonably requested, at Company’s expense but\nwithout additional compensation to Employee, during and after the term of his employment to obtain, perfect, sustain and enforce, Company’s rights\nin and ownership of the Inventions covered hereby, including without limitation, the execution of additional instruments of conveyance and assisting\nCompany with applications for patents or copyright or other registrations. If Company, after reasonable efforts, is unable to obtain Employee’s\nsignature to any such instruments (without regard to whether or not Employee is at that time employed by Company), Employee hereby irrevocably\ndesignates and appoints Company as Employee’s agent and attorney-in-fact, which appointment includes an interest, for and in Employee’s behalf to\nexecute, verify and file any such instruments and such other lawfully permits acts to further the purposes of this Section 2.1 with the same legal force\nand effect as if executed by Employee.\n2.2 Information on Inventions. During Employee’s employment by Company and for six months after termination of such employment for any\nreason, Employee will promptly disclose to Company in writing all Inventions developed, conceived or reduced to practice by Employee, whether\nalone or jointly. To the extent disclosure of such Inventions violates any obligations of confidentiality to a third party, Employee will promptly\ndisclose a brief description of such Inventions, a list of the parties to whom the Inventions belong and the reason full disclosure is prohibited.\n2.3 Washington Notice Provision. In accordance with Section 49.44.140 of the Revised Code of Washington, this Agreement (other than Section\n2.4) does not apply to, and Employee has no obligation to assign or offer to assign to Company, any Invention for which no trade secrets or other\nintellectual property of Company were used and no equipment, supplies, or facilities of Company were used and which was developed entirely on\nEmployee’s own time, unless: (i) the Invention relates directly to the business of Company, (ii) the Invention relates to actual or demonstrably\nanticipated research or development work of Company, or (iii) the Invention results from any work performed by Employee for Company, in which\ncases this Agreement shall apply.\n-2-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\n2.4 Prior Inventions. Any Inventions which Employee alone or jointly developed, conceived or reduced to practice or caused to be developed,\nconceived or reduced to practice prior to employment by Company which Employee wishes to exclude from the scope of this Agreement are set\nforth in Exhibit 1 attached hereto (“Prior Inventions”). To the extent disclosure of any such Prior Inventions violates any prior obligations of\nconfidentiality to a third party, Exhibit 1 must include a brief description of such Prior Invention, a list of the parties to whom such Prior Inventions\nbelong and the reason full disclosure is prohibited. To the extent that no Prior Inventions are set forth in Exhibit 1, Employee represents that no such\nPrior Inventions exist. Notwithstanding the foregoing, if Employee incorporates, in the course of his employment by Company, any Prior Inventions\ninto a product, process, service or machine of Company, Employee hereby grants Company a nonexclusive, royalty-free, perpetual, irrevocable,\nworldwide license (with right to sublicense) to make, have made, use, sell, copy, distribute, modify, and otherwise to practice and exploit such Prior\nInventions.\n3. Non-competition and Non-solicitation.\n3.1 Employee agrees that during Employee’s employment by Company and for twelve (12) months after termination of such employment for any\nreason (the “Noncompete Period”), Employee will not in any capacity (including without limitation, as an employee, officer, agent, director,\nconsultant, owner, shareholder, partner, member or joint venture) directly or indirectly, whether or not for compensation, engage in or assist others to\nengage in any business that is, or is preparing to be, in competition with any business in the field of drug development involving any clinical\nindication that, as of the date of termination of Employee’s employment, the Company has a drug candidate in preclinical or clinical studies;\nprovided, however, that nothing herein shall prevent the purchase or ownership by Employee of shares which constitute less than one percent of the\noutstanding equity securities of a publicly-held company. Notwithstanding the foregoing, the Noncompete Period shall be extended from twelve (12)\nto twenty-four (24) months if, upon termination of Employee’s employment the Company pays Employee an amount, in addition to any post-\nemployment compensation Employee is then entitled to receive, at least equal to the product obtained by multiplying 12 by Employee’s then base\nmonthly compensation.\n3.2 Employee further agrees that during his/her employment and the Noncompete Period, Employee will not for any competitive reason call on,\nreveal the name of, or otherwise solicit, accept business from or attempt to entice away from Company any actual or identified potential customer of\nCompany, nor will he assist others in doing so. Employee agrees that he will not, during the Noncompete Period, encourage or solicit or assist others\nto encourage or solicit any other employee or consultant of Company to leave such employment for any reason.\n3.3 Employee acknowledges that the covenants in Sections 3.1, and 3.2 are reasonable in relation to the business in which Company is engaged, the\nposition Employee has been afforded with Company, and Employee’s existing and to be acquired knowledge of Company’s business, and that\ncompliance with such covenants will not prevent him/her from pursuing his/her livelihood. However, should any court of competent jurisdiction find\nthat any provision of such covenants is unreasonable, whether in period of time, geographical area, or otherwise, then in that event the parties agree\nthat such covenants shall be interpreted and enforced to the maximum extent which the court deems reasonable.\n-3-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\n4. Remedies. Employee acknowledges that the harm to Company from any breach of Employee’s obligations under or related to this Agreement may\nbe difficult to determine and may be wholly or partially irreparable, and such obligations may be enforced by injunctive relief and other available\nremedies at law or in equity. The parties further agree that Company shall not be required to post any bond in connection with enforcement of\nEmployer’s obligations hereunder (unless required by law or court rule, in which case the bond shall be $5,000), and that Company in its sole\ndiscretion shall be entitled to inform third parties of the existence of this Agreement and of Employee’s obligations hereunder. Any amounts received\nby Employee or by any other party through Employee in breach of this Agreement shall be held in trust for the benefit of Company. In the event\nEmployee breaches Section 3.1 or 3.2, the Noncompete Period shall be extended by the period of time during which Employee is in breach of\nSection 3.1 or 3.2, as the case may be. No term hereof shall be construed to limit or supersede any other right or remedy of Company under\napplicable law with respect to the protection of trade secrets or otherwise.\n5. No Conflicting Agreements. Employee represents that Employee (a) has no conflicting obligations to assign any Invention and (b) has no other\nemployment, consulting or undertakings which would restrict or impair Employee’s performance of this Agreement. Employee warrants that any and\nall items, technology, and Inventions of any nature developed or provided by Employee under this Agreement will be original to Employee and will\nnot, as provided to Company or when used and exploited by Company and its contractors and customers and their respective successors and assigns,\ninfringe in any respect the rights or property of Employee or any third party. Employee will indemnify Company for all losses, claims, and expenses\n(including reasonable attorneys’ fees) arising from any breach of Employee’s warranties.\n6. At Will Employment. Unless and to the extent otherwise agreed by Company and Employee in a separate written employment agreement,\nEmployee’s employment is and will be “at will.” This means either party can end the employment relationship at any time for any reason. No term of\nany employment agreement between Company and Employee shall be construed to conflict with or lessen Employee’s obligations under this\nAgreement.\n7. Miscellaneous.\n7.1 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective successors, assigns, heirs, representatives,\nexecutors and administrators of the parties. The phrase “an officer of Company” as used herein shall refer to an officer of Company other than\nEmployee. No waiver of or forbearance to enforce any right or provision hereof shall be binding unless in writing and signed by the party to be\nbound, and no such waiver or forbearance in any instance shall apply to any other instance or to any other right or provision.\n7.2 Governing Law; Venue. This Agreement will be governed by the laws of the State of Washington without regard to its conflicts of laws rules.\nThe parties hereby agree that the exclusive venue for all matters and actions arising under this Agreement shall be and remain in the state and federal\ncourts sitting in King County, Washington, and the parties hereby consent to the personal jurisdiction of such courts. The prevailing party shall be\nentitled to reasonable attorneys’ fees and costs incurred in connection with any such litigation arising under or related to this Agreement.\n-4-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\n7.3 Assignment. This Agreement is personal to Employee and shall not be assignable by Employee. All the terms and provisions of this Agreement\nshall be binding on and shall inure to the benefit of and be enforceable by the parties and their respective heirs, successors and permitted assigns.\n7.4 Waivers. No delay or failure by any party to this Agreement in exercising, protecting or enforcing any of its rights, titles, interests or remedies\nhereunder, and no course of dealing or performance with respect thereto, shall constitute a waiver. The express waiver by a party of any right, title,\ninterest or remedy in a particular instance or circumstance shall not constitute a waiver in any other instance or circumstance. All rights and remedies\nshall be cumulative and not exclusive of any other rights or remedies.\n7.5 Amendments In Writing. No amendment, modification, waiver, termination or discharge of any provision of this Employment Agreement, nor\nconsent to any departure from any provision of this Agreement by either party, shall in any event be effective unless the same shall be in writing,\nspecifically identifying this Agreement and the provision intended to be amended, modified, waived, terminated or discharged and signed by the\nCompany and Employee, and each such amendment, modification, waiver, termination or discharge shall be effective only in the specific instance\nand for the specific purpose for which given. No provision of this Agreement shall be varied, contradicted or explained by any oral agreement,\ncourse of dealing or performance or any other matter not set forth in an agreement in writing and signed by the Company and Employee.\n7.6 Headings. All headings used in this Agreement are for convenience only and shall not in any way affect the construction of, or be taken into\nconsideration in interpreting, this Agreement.\n7.7 Counterparts. This Agreement, and any amendment or modification entered into pursuant to Section 7.5, may be executed in any number of\ncounterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken\ntogether, shall constitute one and the same instrument.\n7.8 Entire Agreement; Severability. This Agreement represents the entire agreement between Company and Employee concerning the subject matter\nhereof and supersedes all prior agreements, correspondence and understandings, whether oral or written, with respect to that subject matter. If any\nprovision of this Agreement is held to be invalid or unenforceable to any extent in any context, it shall nevertheless be enforced to the fullest extent\nallowed by law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected thereby.\n-5-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\nBY SIGNING BELOW, EMPLOYEE ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT IN ITS ENTIRETY AND\nUNDERSTANDS IT, INCLUDING THE EMPLOYMENT AT WILL PROVISION OF SECTION 6, WHICH INDICATES THAT EMPLOYEE\nHAS NO CONTRACT OR PROMISE OF ONGOING EMPLOYMENT. EMPLOYEE FURTHER ACKNOWLEDGES THAT HE HAS HAD THE\nOPPORTUNITY TO CONSULT WITH COUNSEL WITH RESPECT TO THIS AGREEMENT.\nCORUS PHARMA, INC.\nA. BRUCE MONTGOMERY, M.D .\nBy: /s/ Jonathan P. Mow\n/s/ A. Bruce Montgomery, M.D .\nJonathan P. Mow, Vice President\nAddress:\n2025 First Avenue, Suite 800\nDated: May 18, 2001\nSeattle, Washington 98121\nDated:\nMay\n, 2001\n-6-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\nExhibit 1\nEmployee’s Prior Inventions\nInventions not covered in this agreement relate to issued patents on aerosolized pentamidine, formulation patents on aminoglycosides for inhalation,\nColistin for inhalation, treatment of tuberculosis with tobramycin. US patent numbers are 6,083,922 and 5,767,068 and 5,508,269. Foreign filings are\nalso issued or active.\nIn addition, I have filed an application in the use of tobramycin for treatment of bronchiectasis at PathoGenesis corporation which is pending.\n-7-	EX-10.22 21 dex1022.htm EMPLOYEE CONFIDENTIALITY, INVENTIONS, AND NON-COMPETITION\nAGREEMENT\nExhibit 10.22\nEmployee Confidentiality, Inventions and Non-Competition Agreement\nEMPLOYEE CONFIDENTIALITY, INVENTIONS, AND NON-COMPETITION\nAGREEMENT\nThis Agreement is made and entered into as of May , 2001, by and between Corus Pharma, Inc., a Delaware corporation (“Company)\nand A. Bruce Montgomery, M.D. (“Employee”).\nRECITALS\nWHEREAS, the Company and Employee have entered into a letter agreement dated as of January 26, 2001, (the “Letter Agreement”) pursuant\nto which Employee has assigned to the Company all rights then or thereafter owned in connection with the Invention (as described in the Letter\nAgreement),\nWHEREAS, the Company and Employee wish to memorialize certain obligations of Employee in connection with maintaining confidentiality\nof the Company’s information, and\nWHEREAS, the Company and the Employee wish to memorialize the understanding between the parties that Employee shall assign any future\ninventions made while an employee of the Company.\nAs a condition of Employee’s ongoing employment, and the special training and knowledge that Employee will acquire through his\nemployment with the Company, and of the covenants and conditions contained herein, the parties agree as follows:\n1. Confidential Information.\n1.1 Company Secrets. During and after Employee’s employment with Company, Employee will protect and hold in strictest confidence all\nConfidential Information of Company and its affiliates and business relations. Confidential Information includes, without limitation, Inventions (as\ndefined below), trade secrets, plans, programs, source and object codes, specifications, drawings, diagrams, schematics, formulae, product designs\nand concepts, reports, studies, technical know-how, methods, customer and supplier lists, customer requirements, price lists and policies, budgets,\nprojections, bids, costs, financial reports and information, financing materials, training programs and manuals, and sales and marketing programs,\nmaterials, plans, and strategies. Employee will not disclose, use, copy, publish, summarize or remove from Company’s premises any material\ncontaining or disclosing any portion of the Confidential Information, except as necessary to carry out Employee’s assigned responsibilities as a\nCompany employee. Upon termination of Employee’s employment or the earlier request of the Company, all material containing or disclosing any\nportion of the Confidential Information shall be returned to Company.\n1.2 Third Party Information. During and after Employee’s employment with Company, Employee will not (a) use any confidential and proprietary\ninformation of Company’s customers, vendors, consultants and other parties with whom Company does business (“Third Party Information”) or (b)\ndisclose any Third Party Information to anyone other than Company personnel who need to know the same in connection with their work for\nCompany, without the prior written authorization of an officer of Company. Employee will not bring onto Company’s\nEmployee Confidentiality, Inventions and Non-Competition Agreement\npremises or disclose to Company any unpublished documents or any other property, written or unwritten, of any former employer, which is known\nby Employee to be subject to a covenant of confidentiality, without the prior written consent of such former employer.\n2. Inventions.\n2.1 Assignment. Subject to Section 2.3 below, all ownership and other rights in all works, programs, know-how, techniques, formulas, data, manuals,\ninventions, ideas, designs, manuals, improvements, discoveries, processes and other works of authorship (“Inventions™) developed, conceived or\nreduced to practice by Employee, whether alone or with others, during the term of his/her employment by Company, shall be the exclusive property\nof Company and, to the extent permitted by law, shall be “works for hire” and, in the case of Inventions that relate directly or indirectly to the\nbusiness of the Company, whether or not developed or conceived during regular working hours or at the Company’s facilities. Employee hereby\nirrevocably agrees, subject to Section 2.3 below, to and does hereby sell, assign and transfer to Company or Company’s designee Employee’s entire\nright, title and interest, including moral rights, in and to the Inventions developed, conceived or reduced to practice by Employee during the term of\nhis employment by Company, and any improvements thereon. Employee will assist Company as reasonably requested, at Company’s expense but\nwithout additional compensation to Employee, during and after the term of his employment to obtain, perfect, sustain and enforce, Company’s rights\nin and ownership of the Inventions covered hereby, including without limitation, the execution of additional instruments of conveyance and assisting\nCompany with applications for patents or copyright or other registrations. If Company, after reasonable efforts, is unable to obtain Employee’s\nsignature to any such instruments (without regard to whether or not Employee is at that time employed by Company), Employee hereby irrevocably\ndesignates and appoints Company as Employee’s agent and attorney-in-fact, which appointment includes an interest, for and in Employee’s behalf to\nexecute, verify and file any such instruments and such other lawfully permits acts to further the purposes of this Section 2.1 with the same legal force\nand effect as if executed by Employee.\n2.2 Information on Inventions. During Employee’s employment by Company and for six months after termination of such employment for any\nreason, Employee will promptly disclose to Company in writing all Inventions developed, conceived or reduced to practice by Employee, whether\nalone or jointly. To the extent disclosure of such Inventions violates any obligations of confidentiality to a third party, Employee will promptly\ndisclose a brief description of such Inventions, a list of the parties to whom the Inventions belong and the reason full disclosure is prohibited.\n2.3 Washington Notice Provision. In accordance with Section 49.44.140 of the Revised Code of Washington, this Agreement (other than Section\n2.4) does not apply to, and Employee has no obligation to assign or offer to assign to Company, any Invention for which no trade secrets or other\nintellectual property of Company were used and no equipment, supplies, or facilities of Company were used and which was developed entirely on\nEmployee’s own time, unless: (i) the Invention relates directly to the business of Company, (ii) the Invention relates to actual or demonstrably\nanticipated research or development work of Company, or (iii) the Invention results from any work performed by Employee for Company, in which\ncases this Agreement shall apply.\n-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\n2.4 Prior Inventions. Any Inventions which Employee alone or jointly developed, conceived or reduced to practice or caused to be developed,\nconceived or reduced to practice prior to employment by Company which Employee wishes to exclude from the scope of this Agreement are set\nforth in Exhibit 1 attached hereto (“Prior Inventions™). To the extent disclosure of any such Prior Inventions violates any prior obligations of\nconfidentiality to a third party, Exhibit 1 must include a brief description of such Prior Invention, a list of the parties to whom such Prior Inventions\nbelong and the reason full disclosure is prohibited. To the extent that no Prior Inventions are set forth in Exhibit 1, Employee represents that no such\nPrior Inventions exist. Notwithstanding the foregoing, if Employee incorporates, in the course of his employment by Company, any Prior Inventions\ninto a product, process, service or machine of Company, Employee hereby grants Company a nonexclusive, royalty-free, perpetual, irrevocable,\nworldwide license (with right to sublicense) to make, have made, use, sell, copy, distribute, modify, and otherwise to practice and exploit such Prior\nInventions.\n3. Non-competition and Non-solicitation.\n3.1 Employee agrees that during Employee’s employment by Company and for twelve (12) months after termination of such employment for any\nreason (the “Noncompete Period”), Employee will not in any capacity (including without limitation, as an employee, officer, agent, director,\nconsultant, owner, shareholder, partner, member or joint venture) directly or indirectly, whether or not for compensation, engage in or assist others to\nengage in any business that is, or is preparing to be, in competition with any business in the field of drug development involving any clinical\nindication that, as of the date of termination of Employee’s employment, the Company has a drug candidate in preclinical or clinical studies;\nprovided, however, that nothing herein shall prevent the purchase or ownership by Employee of shares which constitute less than one percent of the\noutstanding equity securities of a publicly-held company. Notwithstanding the foregoing, the Noncompete Period shall be extended from twelve (12)\nto twenty-four (24) months if, upon termination of Employee’s employment the Company pays Employee an amount, in addition to any post-\nemployment compensation Employee is then entitled to receive, at least equal to the product obtained by multiplying 12 by Employee’s then base\nmonthly compensation.\n3.2 Employee further agrees that during his/her employment and the Noncompete Period, Employee will not for any competitive reason call on,\nreveal the name of, or otherwise solicit, accept business from or attempt to entice away from Company any actual or identified potential customer of\nCompany, nor will he assist others in doing so. Employee agrees that he will not, during the Noncompete Period, encourage or solicit or assist others\nto encourage or solicit any other employee or consultant of Company to leave such employment for any reason.\n3.3 Employee acknowledges that the covenants in Sections 3.1, and 3.2 are reasonable in relation to the business in which Company is engaged, the\nposition Employee has been afforded with Company, and Employee’s existing and to be acquired knowledge of Company’s business, and that\ncompliance with such covenants will not prevent him/her from pursuing his/her livelihood. However, should any court of competent jurisdiction find\nthat any provision of such covenants is unreasonable, whether in period of time, geographical area, or otherwise, then in that event the parties agree\nthat such covenants shall be interpreted and enforced to the maximum extent which the court deems reasonable.\n_3-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\n4. Remedies. Employee acknowledges that the harm to Company from any breach of Employee’s obligations under or related to this Agreement may\nbe difficult to determine and may be wholly or partially irreparable, and such obligations may be enforced by injunctive relief and other available\nremedies at law or in equity. The parties further agree that Company shall not be required to post any bond in connection with enforcement of\nEmployer’s obligations hereunder (unless required by law or court rule, in which case the bond shall be $5,000), and that Company in its sole\ndiscretion shall be entitled to inform third parties of the existence of this Agreement and of Employee’s obligations hereunder. Any amounts received\nby Employee or by any other party through Employee in breach of this Agreement shall be held in trust for the benefit of Company. In the event\nEmployee breaches Section 3.1 or 3.2, the Noncompete Period shall be extended by the period of time during which Employee is in breach of\nSection 3.1 or 3.2, as the case may be. No term hereof shall be construed to limit or supersede any other right or remedy of Company under\napplicable law with respect to the protection of trade secrets or otherwise.\n5. No Confflicting Agreements. Employee represents that Employee (a) has no conflicting obligations to assign any Invention and (b) has no other\nemployment, consulting or undertakings which would restrict or impair Employee’s performance of this Agreement. Employee warrants that any and\nall items, technology, and Inventions of any nature developed or provided by Employee under this Agreement will be original to Employee and will\nnot, as provided to Company or when used and exploited by Company and its contractors and customers and their respective successors and assigns,\ninfringe in any respect the rights or property of Employee or any third party. Employee will indemnify Company for all losses, claims, and expenses\n(including reasonable attorneys’ fees) arising from any breach of Employee’s warranties.\n6. At Will Employment. Unless and to the extent otherwise agreed by Company and Employee in a separate written employment agreement,\nEmployee’s employment is and will be “at will.” This means either party can end the employment relationship at any time for any reason. No term of\nany employment agreement between Company and Employee shall be construed to conflict with or lessen Employee’s obligations under this\nAgreement.\n7. Miscellaneous.\n7.1 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective successors, assigns, heirs, representatives,\nexecutors and administrators of the parties. The phrase “an officer of Company” as used herein shall refer to an officer of Company other than\nEmployee. No waiver of or forbearance to enforce any right or provision hereof shall be binding unless in writing and signed by the party to be\nbound, and no such waiver or forbearance in any instance shall apply to any other instance or to any other right or provision.\n7.2 Governing Law; Venue. This Agreement will be governed by the laws of the State of Washington without regard to its conflicts of laws rules.\nThe parties hereby agree that the exclusive venue for all matters and actions arising under this Agreement shall be and remain in the state and federal\ncourts sitting in King County, Washington, and the parties hereby consent to the personal jurisdiction of such courts. The prevailing party shall be\nentitled to reasonable attorneys’ fees and costs incurred in connection with any such litigation arising under or related to this Agreement.\n4-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\n7.3 Assignment. This Agreement is personal to Employee and shall not be assignable by Employee. All the terms and provisions of this Agreement\nshall be binding on and shall inure to the benefit of and be enforceable by the parties and their respective heirs, successors and permitted assigns.\n7.4 Waivers. No delay or failure by any party to this Agreement in exercising, protecting or enforcing any of its rights, titles, interests or remedies\nhereunder, and no course of dealing or performance with respect thereto, shall constitute a waiver. The express waiver by a party of any right, title,\ninterest or remedy in a particular instance or circumstance shall not constitute a waiver in any other instance or circumstance. All rights and remedies\nshall be cumulative and not exclusive of any other rights or remedies.\n7.5 Amendments In Writing. No amendment, modification, waiver, termination or discharge of any provision of this Employment Agreement, nor\nconsent to any departure from any provision of this Agreement by either party, shall in any event be effective unless the same shall be in writing,\nspecifically identifying this Agreement and the provision intended to be amended, modified, waived, terminated or discharged and signed by the\nCompany and Employee, and each such amendment, modification, waiver, termination or discharge shall be effective only in the specific instance\nand for the specific purpose for which given. No provision of this Agreement shall be varied, contradicted or explained by any oral agreement,\ncourse of dealing or performance or any other matter not set forth in an agreement in writing and signed by the Company and Employee.\n7.6 Headings. All headings used in this Agreement are for convenience only and shall not in any way affect the construction of, or be taken into\nconsideration in interpreting, this Agreement.\n7.7 Counterparts. This Agreement, and any amendment or modification entered into pursuant to Section 7.5, may be executed in any number of\ncounterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken\ntogether, shall constitute one and the same instrument.\n7.8 Entire Agreement; Severability. This Agreement represents the entire agreement between Company and Employee concerning the subject matter\nhereof and supersedes all prior agreements, correspondence and understandings, whether oral or written, with respect to that subject matter. If any\nprovision of this Agreement is held to be invalid or unenforceable to any extent in any context, it shall nevertheless be enforced to the fullest extent\nallowed by law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected thereby.\n_5-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\nBY SIGNING BELOW, EMPLOYEE ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT IN ITS ENTIRETY AND\nUNDERSTANDS IT, INCLUDING THE EMPLOYMENT AT WILL PROVISION OF SECTION 6, WHICH INDICATES THAT EMPLOYEE\nHAS NO CONTRACT OR PROMISE OF ONGOING EMPLOYMENT. EMPLOYEE FURTHER ACKNOWLEDGES THAT HE HAS HAD THE\nOPPORTUNITY TO CONSULT WITH COUNSEL WITH RESPECT TO THIS AGREEMENT.\nCORUS PHARMA, INC. A. BRUCE MONTGOMERY, M.D.\nBy: /s/ Jonathan P. Mow /s/ A. Bruce Montgomery, M.D.\nJonathan P. Mow, Vice President\nAddress: 2025 First Avenue, Suite 800\nDated: May 18, 2001 Seattle, Washington 98121\nDated: May , 2001\n-6-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\nExhibit 1\nEmployee’s Prior Inventions\nInventions not covered in this agreement relate to issued patents on aerosolized pentamidine, formulation patents on aminoglycosides for inhalation,\nColistin for inhalation, treatment of tuberculosis with tobramycin. US patent numbers are 6,083,922 and 5,767,068 and 5,508,269. Foreign filings are\nalso issued or active.\nIn addition, I have filed an application in the use of tobramycin for treatment of bronchiectasis at PathoGenesis corporation which is pending.\n_7-	EX-10.22 21 ex1022.htm EMPLOYEE CONFIDENTIALITY, INVENTIONS, AND NON-COMPETITION\nAGREEMENT\nExhibit 10.22\nEmployee Confidentiality, Inventions and Non-Competition Agreement\nEMPLOYEE CONFIDENTIALITY, INVENTIONS, AND NON-COMPETITION\nAGREEMENT\nThis Agreement is made and entered into as of May 2001, by and between Corus Pharma, Inc., a Delaware corporation ("Company.")\nand A. Bruce Montgomery, M.D. ("Employee").\nRECITALS\nWHEREAS, the Company and Employee have entered into a letter agreement dated as of January 26, 2001, (the "Letter Agreement") pursuant\nto which Employee has assigned to the Company all rights then or thereafter owned in connection with the Invention (as described in the Letter\nAgreement),\nWHEREAS, the Company and Employee wish to memorialize certain obligations of Employee in connection with maintaining confidentiality\nof the Company's information, and\nWHEREAS, the Company and the Employee wish to memorialize the understanding between the parties that Employee shall assign any future\ninventions made while an employee of the Company.\nAs a condition of Employee's ongoing employment, and the special training and knowledge that Employee will acquire through his\nemployment with the Company, and of the covenants and conditions contained herein, the parties agree as follows:\n1. Confidential Information.\n1.1 Company Secrets. During and after Employee's employment with Company, Employee will protect and hold in strictest confidence all\nConfidential Information of Company and its affiliates and business relations. Confidential Information includes, without limitation, Inventions (as\ndefined\nbelow),\ntrade\nsecrets,\nplans,\nprograms,\nsource\nand\nobject\ncodes,\nspecifications,\ndrawings,\ndiagrams,\nschematics,\nformulae,\nproduct\ndesigns\nand concepts, reports, studies, technical know-how, methods, customer and supplier lists, customer requirements, price lists and policies, budgets,\nprojections, bids, costs, financial reports and information, financing materials, training programs and manuals, and sales and marketing programs,\nmaterials, plans, and strategies. Employee will not disclose, use, copy, publish, summarize or remove from Company's premises any material\ncontaining or disclosing any portion of the Confidential Information, except as necessary to carry out Employee's assigned responsibilities as a\nCompany employee. Upon termination of Employee's employment or the earlier request of the Company, all material containing or disclosing any\nportion of the Confidential Information shall be returned to Company.\n1.2 Third Party Information. During and after Employee's employment with Company, Employee will not (a) use any confidential and proprietary\ninformation of Company's customers, vendors, consultants and other parties with whom Company does business ("Third Party Information") or (b)\ndisclose any Third Party Information to anyone other than Company personnel who need to know the same in connection with their work for\nCompany, without the prior written authorization of an officer of Company. Employee will not bring onto Company's\nEmployee Confidentiality, Inventions and Non-Competition Agreement\npremises or disclose to Company any unpublished documents or any other property, written or unwritten, of any former employer, which is known\nby Employee to be subject to a covenant of confidentiality, without the prior written consent of such former employer.\n2. Inventions.\n2.1 Assignment. Subject to Section 2.3 below, all ownership and other rights in all works, programs, know-how, techniques, formulas, data, manuals,\ninventions, ideas, designs, manuals, improvements, discoveries, processes and other works of authorship ("Inventions") developed, conceived or\nreduced to practice by Employee, whether alone or with others, during the term of his/her employment by Company, shall be the exclusive property\nof Company and, to the extent permitted by law, shall be "works for hire" and, in the case of Inventions that relate directly or indirectly to the\nbusiness of the Company, whether or not developed or conceived during regular working hours or at the Company's facilities. Employee hereby\nirrevocably agrees, subject to Section 2.3 below, to and does hereby sell, assign and transfer to Company or Company's designee Employee's entire\nright, title and interest, including moral rights, in and to the Inventions developed, conceived or reduced to practice by Employee during the term of\nhis employment by Company, and any improvements thereon. Employee will assist Company as reasonably requested, at Company's expense but\nwithout additional compensation to Employee, during and after the term of his employment to obtain, perfect, sustain and enforce, Company's rights\nin and ownership of the Inventions covered hereby, including without limitation, the execution of additional instruments of conveyance and assisting\nCompany with applications for patents or copyright or other registrations. If Company, after reasonable efforts, is unable to obtain Employee's\nsignature to any such instruments (without regard to whether or not Employee is at that time employed by Company), Employee hereby irrevocably\ndesignates and appoints Company as Employee's agent and attorney-in-fact, which appointment includes an interest, for and in Employee's behalf\nto\nexecute, verify and file any such instruments and such other lawfully permits acts to further the purposes of this Section 2.1 with the same legal force\nand effect as if executed by Employee.\n2.2 Information on Inventions. During Employee's employment by Company and for six months after termination of such employment for any\nreason, Employee will promptly disclose to Company in writing all Inventions developed, conceived or reduced to practice by Employee, whether\nalone or jointly. To the extent disclosure of such Inventions violates any obligations of confidentiality to a third party, Employee will promptly\ndisclose a brief description of such Inventions, a list of the parties to whom the Inventions belong and the reason full disclosure is prohibited.\n2.3 Washington Notice Provision. In accordance with Section 49.44.140 of the Revised Code of Washington, this Agreement (other than Section\n2.4) does not apply to, and Employee has no obligation to assign or offer to assign to Company, any Invention for which no trade secrets or other\nintellectual property of Company were used and no equipment, supplies, or facilities of Company were used and which was developed entirely on\nEmployee's own time, unless: (i) the Invention relates directly to the business of Company, (ii) the Invention relates to actual or demonstrably\nanticipated research or development work of Company, or (iii) the Invention results from any work performed by Employee\nfor\nCompany,\nin\nwhich\ncases this Agreement shall apply.\n-2-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\n2.4 Prior Inventions. Any Inventions which Employee alone or jointly developed, conceived or reduced to practice or caused to be developed,\nconceived or reduced to practice prior to employment by Company which Employee wishes to exclude from the scope of this Agreement are set\nforth in Exhibit 1 attached hereto ("Prior Inventions"). To the extent disclosure of any such Prior Inventions violates any prior obligations of\nconfidentiality to a third party, Exhibit 1 must include a brief description of such Prior Invention, a list of the parties to whom such Prior Inventions\nbelong and the reason full disclosure is prohibited. To the extent that no Prior Inventions are set forth in Exhibit 1, Employee represents that no such\nPrior Inventions exist. Notwithstanding the foregoing, if Employee incorporates, in the course of his employment by Company, any Prior Inventions\ninto a product, process, service or machine of Company, Employee hereby grants Company a nonexclusive, royalty-free, perpetual, irrevocable,\nworldwide license (with right to sublicense) to make, have made, use, sell, copy, distribute, modify, and otherwise to practice and exploit such Prior\nInventions.\n3. Non-competition and Non-solicitation.\n3.1 Employee agrees that during Employee's employment by Company and for twelve (12) months after termination of such employment for any\nreason (the "Noncompete Period"), Employee will not in any capacity (including without limitation, as an employee, officer, agent, director,\nconsultant, owner, shareholder, partner, member or joint venture) directly or indirectly, whether or not for compensation, engage in or assist others\nto\nengage in any business that is, or is preparing to be, in competition with any business in the field of drug development involving any clinical\nindication that, as of the date of termination of Employee's employment, the Company has a drug candidate in preclinical or clinical studies;\nprovided, however, that nothing herein shall prevent the purchase or ownership by Employee of shares which constitute less than one percent of the\noutstanding equity securities of a publicly-held company. Notwithstanding the foregoing, the Noncompete Period shall be extended from twelve (12)\nto twenty-four (24) months if, upon termination of Employee's employment the Company pays Employee an amount, in addition to any post-\nemployment compensation Employee is then entitled to receive, at least equal to the product obtained by multiplying 12 by Employee's then\nbase\nmonthly compensation.\n3.2 Employee further agrees that during his/her employment and the Noncompete Period, Employee will not for any competitive reason call\non,\nreveal\nthe name of, or otherwise solicit, accept business from or attempt to entice away from Company any actual or identified potential customer\nof\nCompany, nor will he assist others in doing so. Employee agrees that he will not, during the Noncompete Period, encourage or solicit or assist others\nto encourage or solicit any other employee or consultant of Company to leave such employment for any reason.\n3.3 Employee acknowledges that the covenants in Sections 3.1, and 3.2 are reasonable in relation to the business in which Company is engaged,\nthe\nposition Employee has been afforded with Company, and Employee's existing and to be acquired knowledge of Company's business, and that\ncompliance with such covenants will not prevent him/her from pursuing his/her livelihood. However, should any court of competent jurisdiction find\nthat any provision of such covenants is unreasonable, whether in period of time, geographical area, or otherwise, then in that event the parties agree\nthat such covenants shall be interpreted and enforced to the maximum extent which the court deems reasonable.\n-3-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\n4.\nRemedies. Employee acknowledges that the harm to Company from any breach of Employee's obligations under or related to this Agreement may\nbe difficult to determine and may be wholly or partially irreparable, and such obligations may be enforced by injunctive relief and other available\nremedies at law or in equity. The parties further agree that Company shall not be required to post any bond in connection with enforcement\nof\nEmployer's obligations hereunder (unless required by law or court rule, in which case the bond shall be $5,000), and that Company in its sole\ndiscretion shall be entitled to inform third parties of the existence of this Agreement and of Employee's obligations hereunder. Any amounts received\nby Employee or by any other party through Employee in breach of this Agreement shall be held in trust for the benefit of Company. In the event\nEmployee breaches Section 3.1 or 3.2, the Noncompete Period shall be extended by the period of time during which Employee is in breach of\nSection 3.1 or 3.2, as the case may be. No term hereof shall be construed to limit or supersede any other right or remedy of Company under\napplicable law with respect to the protection of trade secrets or otherwise.\n5. No Conflicting Agreements. Employee represents that Employee (a) has no conflicting obligations to assign any Invention and (b) has no other\nemployment, consulting or undertakings which would restrict or impair Employee's performance of this Agreement. Employee warrants that any and\nall\nitems, technology, and Inventions of any nature developed or provided by Employee under this Agreement will be original to Employee and will\nnot, as provided to Company or when used and exploited by Company and its contractors and customers and their respective successors and assigns,\ninfringe in any respect the rights or property of Employee or any third party. Employee will indemnify Company for all losses, claims, and expenses\n(including reasonable attorneys' fees) arising from any breach of Employee's warranties.\n6.\nAt Will Employment. Unless and to the extent otherwise agreed by Company and Employee in a separate written employment agreement,\nEmployee's employment is and will be "at will." This means either party can end the employment relationship at any time for any reason. No term of\nany employment agreement between Company and Employee shall be construed to conflict with or lessen Employee's obligations under this\nAgreement.\n7. Miscellaneous.\n7.1 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective successors, assigns, heirs, representatives,\nexecutors and administrators of the parties. The phrase "an officer of Company" as used herein shall refer to an officer of Company other than\nEmployee. No waiver of or forbearance to enforce any right or provision hereof shall be binding unless in writing and signed by the party to be\nbound, and no such waiver or forbearance in any instance shall apply to any other instance or to any other right or provision.\n7.2 Governing Law; Venue. This Agreement will be governed by the laws of the State of Washington without regard to its conflicts of laws rules.\nThe parties hereby agree that the exclusive venue for all matters and actions arising under this Agreement shall be and remain in the state and federal\ncourts sitting in King County, Washington, and the parties hereby consent to the personal jurisdiction of such courts. The prevailing party shall be\nentitled to reasonable attorneys' fees and costs incurred in connection with any such litigation arising under or related to this Agreement.\n-4-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\n7.3 Assignment. This Agreement is personal to Employee and shall not be assignable by Employee. All the terms and provisions of this Agreement\nshall be binding on and shall inure to the benefit of and be enforceable by the parties and their respective heirs, successors and permitted assigns.\n7.4 Waivers. No delay or failure by any party to this Agreement in exercising, protecting or enforcing any of its rights, titles, interests or remedies\nhereunder, and no course of dealing or performance with respect thereto, shall constitute a waiver. The express waiver by a party of any right, title,\ninterest or remedy in a particular instance or circumstance shall not constitute a waiver in any other instance or circumstance. All rights and remedies\nshall be cumulative and not exclusive of any other rights or remedies.\n7.5 Amendments In Writing. No amendment, modification, waiver, termination or discharge of any provision of this Employment Agreement, nor\nconsent to any departure from any provision of this Agreement by either party, shall in any event be effective unless the same shall be in writing,\nspecifically identifying this Agreement and the provision intended to be amended, modified, waived, terminated or discharged and signed by the\nCompany and Employee, and each such amendment, modification, waiver, termination or discharge shall be effective only in the specific instance\nand\nfor\nthe specific purpose for which given. No provision of this Agreement shall be varied, contradicted or explained by any oral agreement,\ncourse of dealing or performance or any other matter not set forth in an agreement in writing and signed by the Company and Employee.\n7.6 Headings. All headings used in this Agreement are for convenience only and shall not in any way affect the construction of, or be taken into\nconsideration in interpreting, this Agreement.\n7.7\nCounterparts. This Agreement, and any amendment or modification entered into pursuant to Section 7.5, may be executed in any number of\ncounterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken\ntogether, shall constitute one and the same instrument.\n7.8 Entire Agreement; Severability. This Agreement represents the entire agreement between Company and Employee concerning the subject matter\nhereof and supersedes all prior agreements, correspondence and understandings, whether oral or written, with respect to that subject matter. If any\nprovision of this Agreement is held to be invalid or unenforceable to any extent in any context, it shall nevertheless be enforced to the fullest extent\nallowed by law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected thereby.\n-5-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\nBY SIGNING BELOW, EMPLOYEE ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT IN ITS ENTIRETY AND\nUNDERSTANDS IT, INCLUDING THE EMPLOYMENT AT WILL PROVISION OF SECTION 6, WHICH INDICATES THAT EMPLOYEE\nHAS NO CONTRACT OR PROMISE OF ONGOING EMPLOYMENT. EMPLOYEE FURTHER ACKNOWLEDGES THAT HE HAS HAD THE\nOPPORTUNITY TO CONSULT WITH COUNSEL WITH RESPECT TO THIS AGREEMENT.\nCORUS PHARMA, INC.\nA. BRUCE MONTGOMERY, M.D.\nBy: /s/ Jonathan P. Mow\n/s/ A. Bruce Montgomery, M.D.\nJonathan P. Mow, Vice President\nAddress:\n2025 First Avenue, Suite 800\nDated: May 18, 2001\nSeattle, Washington 98121\nDated:\nMay\n> 2001\n-6-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\nExhibit 1\nEmployee's Prior Inventions\nInventions not covered in this agreement relate to issued patents on aerosolized pentamidine, formulation patents on aminoglycosides for inhalation,\nColistin for inhalation, treatment of tuberculosis with tobramycin. US patent numbers are 6,083,922 and 5,767,068 and 5,508,269. Foreign filings are\nalso issued or active.\nIn addition, I have filed an application in the use of tobramycin for treatment of bronchiectasis at PathoGenesis corporation which is pending\n-7-	EX-10.22 21 dex1022.htm EMPLOYEE CONFIDENTIALITY, INVENTIONS, AND NON-COMPETITION\nAGREEMENT\nExhibit 10.22\nEmployee Confidentiality, Inventions and Non-Competition Agreement\nEMPLOYEE CONFIDENTIALITY, INVENTIONS, AND NON-COMPETITION\nAGREEMENT\nThis Agreement is made and entered into as of May\n, 2001, by and between Corus Pharma, Inc., a Delaware corporation (“Company”)\nand A. Bruce Montgomery, M.D . (“Employee”).\nRECITALS\nWHEREAS, the Company and Employee have entered into a letter agreement dated as of January 26, 2001, (the “Letter Agreement”) pursuant\nto which Employee has assigned to the Company all rights then or thereafter owned in connection with the Invention (as described in the Letter\nAgreement),\nWHEREAS, the Company and Employee wish to memorialize certain obligations of Employee in connection with maintaining confidentiality\nof the Company’s information, and\nWHEREAS, the Company and the Employee wish to memorialize the understanding between the parties that Employee shall assign any future\ninventions made while an employee of the Company.\nAs a condition of Employee’s ongoing employment, and the special training and knowledge that Employee will acquire through his\nemployment with the Company, and of the covenants and conditions contained herein, the parties agree as follows:\n1. Confidential Information.\n1.1 Company Secrets. During and after Employee’s employment with Company, Employee will protect and hold in strictest confidence all\nConfidential Information of Company and its affiliates and business relations. Confidential Information includes, without limitation, Inventions (as\ndefined below), trade secrets, plans, programs, source and object codes, specifications, drawings, diagrams, schematics, formulae, product designs\nand concepts, reports, studies, technical know-how, methods, customer and supplier lists, customer requirements, price lists and policies, budgets,\nprojections, bids, costs, financial reports and information, financing materials, training programs and manuals, and sales and marketing programs,\nmaterials, plans, and strategies. Employee will not disclose, use, copy, publish, summarize or remove from Company’s premises any material\ncontaining or disclosing any portion of the Confidential Information, except as necessary to carry out Employee’s assigned responsibilities as a\nCompany employee. Upon termination of Employee’s employment or the earlier request of the Company, all material containing or disclosing any\nportion of the Confidential Information shall be returned to Company.\n1.2 Third Party Information. During and after Employee’s employment with Company, Employee will not (a) use any confidential and proprietary\ninformation of Company’s customers, vendors, consultants and other parties with whom Company does business (“Third Party Information”) or (b)\ndisclose any Third Party Information to anyone other than Company personnel who need to know the same in connection with their work for\nCompany, without the prior written authorization of an officer of Company. Employee will not bring onto Company’s\nEmployee Confidentiality, Inventions and Non-Competition Agreement\npremises or disclose to Company any unpublished documents or any other property, written or unwritten, of any former employer, which is known\nby Employee to be subject to a covenant of confidentiality, without the prior written consent of such former employer.\n2. Inventions.\n2.1 Assignment. Subject to Section 2.3 below, all ownership and other rights in all works, programs, know-how, techniques, formulas, data, manuals,\ninventions, ideas, designs, manuals, improvements, discoveries, processes and other works of authorship (“Inventions”) developed, conceived or\nreduced to practice by Employee, whether alone or with others, during the term of his/her employment by Company, shall be the exclusive property\nof Company and, to the extent permitted by law, shall be “works for hire” and, in the case of Inventions that relate directly or indirectly to the\nbusiness of the Company, whether or not developed or conceived during regular working hours or at the Company’s facilities. Employee hereby\nirrevocably agrees, subject to Section 2.3 below, to and does hereby sell, assign and transfer to Company or Company’s designee Employee’s entire\nright, title and interest, including moral rights, in and to the Inventions developed, conceived or reduced to practice by Employee during the term of\nhis employment by Company, and any improvements thereon. Employee will assist Company as reasonably requested, at Company’s expense but\nwithout additional compensation to Employee, during and after the term of his employment to obtain, perfect, sustain and enforce, Company’s rights\nin and ownership of the Inventions covered hereby, including without limitation, the execution of additional instruments of conveyance and assisting\nCompany with applications for patents or copyright or other registrations. If Company, after reasonable efforts, is unable to obtain Employee’s\nsignature to any such instruments (without regard to whether or not Employee is at that time employed by Company), Employee hereby irrevocably\ndesignates and appoints Company as Employee’s agent and attorney-in-fact, which appointment includes an interest, for and in Employee’s behalf to\nexecute, verify and file any such instruments and such other lawfully permits acts to further the purposes of this Section 2.1 with the same legal force\nand effect as if executed by Employee.\n2.2 Information on Inventions. During Employee’s employment by Company and for six months after termination of such employment for any\nreason, Employee will promptly disclose to Company in writing all Inventions developed, conceived or reduced to practice by Employee, whether\nalone or jointly. To the extent disclosure of such Inventions violates any obligations of confidentiality to a third party, Employee will promptly\ndisclose a brief description of such Inventions, a list of the parties to whom the Inventions belong and the reason full disclosure is prohibited.\n2.3 Washington Notice Provision. In accordance with Section 49.44.140 of the Revised Code of Washington, this Agreement (other than Section\n2.4) does not apply to, and Employee has no obligation to assign or offer to assign to Company, any Invention for which no trade secrets or other\nintellectual property of Company were used and no equipment, supplies, or facilities of Company were used and which was developed entirely on\nEmployee’s own time, unless: (i) the Invention relates directly to the business of Company, (ii) the Invention relates to actual or demonstrably\nanticipated research or development work of Company, or (iii) the Invention results from any work performed by Employee for Company, in which\ncases this Agreement shall apply.\n-2-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\n2.4 Prior Inventions. Any Inventions which Employee alone or jointly developed, conceived or reduced to practice or caused to be developed,\nconceived or reduced to practice prior to employment by Company which Employee wishes to exclude from the scope of this Agreement are set\nforth in Exhibit 1 attached hereto (“Prior Inventions”). To the extent disclosure of any such Prior Inventions violates any prior obligations of\nconfidentiality to a third party, Exhibit 1 must include a brief description of such Prior Invention, a list of the parties to whom such Prior Inventions\nbelong and the reason full disclosure is prohibited. To the extent that no Prior Inventions are set forth in Exhibit 1, Employee represents that no such\nPrior Inventions exist. Notwithstanding the foregoing, if Employee incorporates, in the course of his employment by Company, any Prior Inventions\ninto a product, process, service or machine of Company, Employee hereby grants Company a nonexclusive, royalty-free, perpetual, irrevocable,\nworldwide license (with right to sublicense) to make, have made, use, sell, copy, distribute, modify, and otherwise to practice and exploit such Prior\nInventions.\n3. Non-competition and Non-solicitation.\n3.1 Employee agrees that during Employee’s employment by Company and for twelve (12) months after termination of such employment for any\nreason (the “Noncompete Period”), Employee will not in any capacity (including without limitation, as an employee, officer, agent, director,\nconsultant, owner, shareholder, partner, member or joint venture) directly or indirectly, whether or not for compensation, engage in or assist others to\nengage in any business that is, or is preparing to be, in competition with any business in the field of drug development involving any clinical\nindication that, as of the date of termination of Employee’s employment, the Company has a drug candidate in preclinical or clinical studies;\nprovided, however, that nothing herein shall prevent the purchase or ownership by Employee of shares which constitute less than one percent of the\noutstanding equity securities of a publicly-held company. Notwithstanding the foregoing, the Noncompete Period shall be extended from twelve (12)\nto twenty-four (24) months if, upon termination of Employee’s employment the Company pays Employee an amount, in addition to any post-\nemployment compensation Employee is then entitled to receive, at least equal to the product obtained by multiplying 12 by Employee’s then base\nmonthly compensation.\n3.2 Employee further agrees that during his/her employment and the Noncompete Period, Employee will not for any competitive reason call on,\nreveal the name of, or otherwise solicit, accept business from or attempt to entice away from Company any actual or identified potential customer of\nCompany, nor will he assist others in doing so. Employee agrees that he will not, during the Noncompete Period, encourage or solicit or assist others\nto encourage or solicit any other employee or consultant of Company to leave such employment for any reason.\n3.3 Employee acknowledges that the covenants in Sections 3.1, and 3.2 are reasonable in relation to the business in which Company is engaged, the\nposition Employee has been afforded with Company, and Employee’s existing and to be acquired knowledge of Company’s business, and that\ncompliance with such covenants will not prevent him/her from pursuing his/her livelihood. However, should any court of competent jurisdiction find\nthat any provision of such covenants is unreasonable, whether in period of time, geographical area, or otherwise, then in that event the parties agree\nthat such covenants shall be interpreted and enforced to the maximum extent which the court deems reasonable.\n-3-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\n4. Remedies. Employee acknowledges that the harm to Company from any breach of Employee’s obligations under or related to this Agreement may\nbe difficult to determine and may be wholly or partially irreparable, and such obligations may be enforced by injunctive relief and other available\nremedies at law or in equity. The parties further agree that Company shall not be required to post any bond in connection with enforcement of\nEmployer’s obligations hereunder (unless required by law or court rule, in which case the bond shall be $5,000), and that Company in its sole\ndiscretion shall be entitled to inform third parties of the existence of this Agreement and of Employee’s obligations hereunder. Any amounts received\nby Employee or by any other party through Employee in breach of this Agreement shall be held in trust for the benefit of Company. In the event\nEmployee breaches Section 3.1 or 3.2, the Noncompete Period shall be extended by the period of time during which Employee is in breach of\nSection 3.1 or 3.2, as the case may be. No term hereof shall be construed to limit or supersede any other right or remedy of Company under\napplicable law with respect to the protection of trade secrets or otherwise.\n5. No Conflicting Agreements. Employee represents that Employee (a) has no conflicting obligations to assign any Invention and (b) has no other\nemployment, consulting or undertakings which would restrict or impair Employee’s performance of this Agreement. Employee warrants that any and\nall items, technology, and Inventions of any nature developed or provided by Employee under this Agreement will be original to Employee and will\nnot, as provided to Company or when used and exploited by Company and its contractors and customers and their respective successors and assigns,\ninfringe in any respect the rights or property of Employee or any third party. Employee will indemnify Company for all losses, claims, and expenses\n(including reasonable attorneys’ fees) arising from any breach of Employee’s warranties.\n6. At Will Employment. Unless and to the extent otherwise agreed by Company and Employee in a separate written employment agreement,\nEmployee’s employment is and will be “at will.” This means either party can end the employment relationship at any time for any reason. No term of\nany employment agreement between Company and Employee shall be construed to conflict with or lessen Employee’s obligations under this\nAgreement.\n7. Miscellaneous.\n7.1 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective successors, assigns, heirs, representatives,\nexecutors and administrators of the parties. The phrase “an officer of Company” as used herein shall refer to an officer of Company other than\nEmployee. No waiver of or forbearance to enforce any right or provision hereof shall be binding unless in writing and signed by the party to be\nbound, and no such waiver or forbearance in any instance shall apply to any other instance or to any other right or provision.\n7.2 Governing Law; Venue. This Agreement will be governed by the laws of the State of Washington without regard to its conflicts of laws rules.\nThe parties hereby agree that the exclusive venue for all matters and actions arising under this Agreement shall be and remain in the state and federal\ncourts sitting in King County, Washington, and the parties hereby consent to the personal jurisdiction of such courts. The prevailing party shall be\nentitled to reasonable attorneys’ fees and costs incurred in connection with any such litigation arising under or related to this Agreement.\n-4-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\n7.3 Assignment. This Agreement is personal to Employee and shall not be assignable by Employee. All the terms and provisions of this Agreement\nshall be binding on and shall inure to the benefit of and be enforceable by the parties and their respective heirs, successors and permitted assigns.\n7.4 Waivers. No delay or failure by any party to this Agreement in exercising, protecting or enforcing any of its rights, titles, interests or remedies\nhereunder, and no course of dealing or performance with respect thereto, shall constitute a waiver. The express waiver by a party of any right, title,\ninterest or remedy in a particular instance or circumstance shall not constitute a waiver in any other instance or circumstance. All rights and remedies\nshall be cumulative and not exclusive of any other rights or remedies.\n7.5 Amendments In Writing. No amendment, modification, waiver, termination or discharge of any provision of this Employment Agreement, nor\nconsent to any departure from any provision of this Agreement by either party, shall in any event be effective unless the same shall be in writing,\nspecifically identifying this Agreement and the provision intended to be amended, modified, waived, terminated or discharged and signed by the\nCompany and Employee, and each such amendment, modification, waiver, termination or discharge shall be effective only in the specific instance\nand for the specific purpose for which given. No provision of this Agreement shall be varied, contradicted or explained by any oral agreement,\ncourse of dealing or performance or any other matter not set forth in an agreement in writing and signed by the Company and Employee.\n7.6 Headings. All headings used in this Agreement are for convenience only and shall not in any way affect the construction of, or be taken into\nconsideration in interpreting, this Agreement.\n7.7 Counterparts. This Agreement, and any amendment or modification entered into pursuant to Section 7.5, may be executed in any number of\ncounterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken\ntogether, shall constitute one and the same instrument.\n7.8 Entire Agreement; Severability. This Agreement represents the entire agreement between Company and Employee concerning the subject matter\nhereof and supersedes all prior agreements, correspondence and understandings, whether oral or written, with respect to that subject matter. If any\nprovision of this Agreement is held to be invalid or unenforceable to any extent in any context, it shall nevertheless be enforced to the fullest extent\nallowed by law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected thereby.\n-5-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\nBY SIGNING BELOW, EMPLOYEE ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT IN ITS ENTIRETY AND\nUNDERSTANDS IT, INCLUDING THE EMPLOYMENT AT WILL PROVISION OF SECTION 6, WHICH INDICATES THAT EMPLOYEE\nHAS NO CONTRACT OR PROMISE OF ONGOING EMPLOYMENT. EMPLOYEE FURTHER ACKNOWLEDGES THAT HE HAS HAD THE\nOPPORTUNITY TO CONSULT WITH COUNSEL WITH RESPECT TO THIS AGREEMENT.\nCORUS PHARMA, INC.\nA. BRUCE MONTGOMERY, M.D .\nBy: /s/ Jonathan P. Mow\n/s/ A. Bruce Montgomery, M.D .\nJonathan P. Mow, Vice President\nAddress:\n2025 First Avenue, Suite 800\nDated: May 18, 2001\nSeattle, Washington 98121\nDated:\nMay\n, 2001\n-6-\nEmployee Confidentiality, Inventions and Non-Competition Agreement\nExhibit 1\nEmployee’s Prior Inventions\nInventions not covered in this agreement relate to issued patents on aerosolized pentamidine, formulation patents on aminoglycosides for inhalation,\nColistin for inhalation, treatment of tuberculosis with tobramycin. US patent numbers are 6,083,922 and 5,767,068 and 5,508,269. Foreign filings are\nalso issued or active.\nIn addition, I have filed an application in the use of tobramycin for treatment of bronchiectasis at PathoGenesis corporation which is pending.\n-7-
+8f4e33c10c29ec53b61ad117fa212618.pdf	effective_date jurisdiction party term	EX-10.4 10 dex104.htm NON-COMPETITION AGREEMENT\nExhibit 10.4\nNON-SOLICITATION, NON-COMPETITION,\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nIn consideration of my employment or continued employment by Omni National Bank (“Company”) and in further consideration of a payment\nin the amount of Seventy Five Thousand ($75,000.00) Dollars, the receipt and sufficiency of which are hereby acknowledged, I, Jeffrey L. Levine,\nS.S . # (Intentionally Omitted), who resides at (Intentionally Omitted), (“Employee”) agree to the following:\nA. Non-Solicitation: Customers\nDuring my employment and for one (1) year immediately following the cessation of my employment with the Company for any reason, I shall\nnot, on my own behalf or on behalf of any person, firm, partnership, association, corporation or business organization, entity or enterprise (except\nCompany), solicit any customer of the Company, or any representative of any customer of the Company, with a view to selling or providing any\nproduct, equipment or service competitive with any product, equipment or service of the Company Business, as defined herein, during the twelve\n(12) month period immediately preceding cessation of my employment with the Company, provided that the restrictions set forth in this section shall\napply only to customers of the Company, or representatives of customers of the Company, with whom I had material contact during such twelve\n(12) month period. “Material contact” exists between myself and each of the Company’s existing customers: (i) with whom I actually dealt for a\nbusiness purpose while employed by the Company or to further a business relationship between the customer and the Company; or (ii) whose\nbusiness dealings with the Company were handled, coordinated or supervised by me.\nB. Non-Solicitation: Employees or Sales Representatives\nDuring my employment and for one (1) year immediately following the cessation of my employment with the Company for any reason, I will\nnot solicit or in any manner encourage employees of the Company to leave the employ of the Company. The foregoing prohibition applies only to\nemployees with whom I had material contact pursuant to my duties during the twelve (12) month period immediately preceding cessation of my\nemployment with the Company. “Material contact” means interaction between myself and another employee of the Company: (i) with whom I\nactually dealt; or (ii) whose employment or dealings with the Company or services for the Company were handled, coordinated or supervised by me.\nC. Non-competition. I acknowledge that my specialized skills, abilities and contacts are important to the success of the Company, and agree that I\nshall faithfully and strictly adhere to the terms hereof. I acknowledge that by reason of the character and nature of the Company’s business activities\nand operations, and further by reason of the scope of the territory in which I perform and will perform the Services (as defined below), in order to\nprotect the Company’s legitimate business interests it is necessary for me to agree not to engage in certain specified activities in such territory at any\ntime during my employment and for a period of time thereafter. Therefore, at all times during my employment with the Company, and for a period of\ntwo (2) years thereafter, I will not, directly or indirectly, within the Territory (as defined below), (a) for myself, (b) as a consultant, manager,\nsupervisor, employee or owner of a Competing Business\n(as defined below), or (c) as an independent contractor for a Competing Business, engage in any business in which I provide services which are the\nsame as or substantially similar to the Services. “Competing Business” shall mean any person, business or entity who or which sells, markets or\ndistributes products and/or sells, furnishes or provides services substantially the same as those sold, marketed, distributed, furnished or supplied by\nthe Company during the term of my employment with the Company. “Territory” shall mean the geographic area encompassed within a sixty\n(60) mile radius of the Company’s office at 1100 Abernathy Road, Atlanta, Georgia. I agree that the Company and I may amend the definition of\n“Territory” from and after the date hereof to reflect any significant contraction or expansion of the geographical area in which I actually perform the\nServices. “Services” shall mean the manager of the operations department for warehouse lending.\nD. Non-Disclosure\n1. TRADE SECRETS . I acknowledge that the Company is engaged in the business (“Company Business”) of Commercial and Retail Banking,\nand the Employee will be employed in a specialized area commonly referred to as: “redevelopment lending”. Redevelopment lending can be further\ndescribed as lending money to borrower who acquire dilapidated, inner-city single and multi-family homes, who after acquisition, re-habilitate those\nstructures for occupancy and/or sale. I acknowledge that this highly specialized area of lending is unique and to my knowledge there are no other\nbanks conducting this business in the geographical area as set forth above. I further acknowledge that prior to joining the Company, I was not\nemployed in this line of business. I further acknowledge that in order to conduct its business, the Company owns and uses trade secrets as defined\nunder applicable law (O.C.G.A. § 10-1 -761(4)). “Trade secret(s)” means information, without regard to form, including, but not limited to, technical\nor non-technical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial\nplans, product plans, or a list of actual or potential customers or suppliers which is not commonly known by or available to the public and which\ninformation: (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means\nby, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the\ncircumstances to maintain its secrecy. I further acknowledge that in the course of my employment with the Company and in order to carry out my\nduties thereunder, I have or will become privy to the Trade Secrets of the Company. Accordingly, I shall not disclose, divulge, publish to others, or\nuse for any purpose, except as necessary to perform my duties while employed by the Company, any Trade Secret of the Company without the prior\nwritten consent of the Company for so long as such information shall remain a Trade Secret.\n2. CONFIDENTIAL INFORMATION. I acknowledge that in order to conduct its business, the Company owns and uses written and unwritten\nconfidential information. “Confidential Information” means data and information relating to the business of the Company (which may not rise to the\nlevel of a Trade Secret under applicable law) which is or has been disclosed to me or of which I became aware as a consequence of or through my\nrelationship with the Company and which has value to the Company and is not generally known to its competitors. Confidential Information shall\nnot include any data or information that has been voluntarily disclosed to the public by the Company (except where such public disclosure has been\nmade by me without authorization) or that has been independently developed and disclosed by others, or\nthat otherwise enters the public domain through lawful means. I further acknowledge that in the course of my employment with the Company and in\norder to carry out my duties thereunder, I have or will become privy to Confidential Information of the Company. Accordingly, I agree that while\nemployed by the Company, and for a period of two (2) years from the conclusion of my employment with the Company for any reason, I will not\ndisclose, divulge, publish to others or use for any purpose any Confidential Information of the Company except to the extent necessary to perform\nmy duties and responsibilities as an Employee for the Company, without the prior written consent of the Company.\n3. NOTICE OF TRADE SECRETS AND CONFIDENTIAL INFORMATION . I acknowledge that the Company hereby designates Trade\nSecrets and Confidential Information to include, without limitation, confidential customer and prospective customer lists; information provided to\nthe Company by its customers or clients or prospective customers or clients; customer preferences; client contacts; marketing plans, presentations\nand strategies; inventions, patents and discoveries reasonably related to the Company’s business or products and services of the Company that have\nnot previously been publicly released by the Company, “software,” computer or electronic data disks or tapes, “processes,” “designs,” “research,”\ncomputer programs; source code; object code; methods of operations and costs data; internal policies and procedures; contracts; personnel\ninformation; credit terms; financial information (including without limitation information regarding fee and pricing structures, assets, status of client\naccounts or credit); or any other information designated as a trade secret, confidential or proprietary by the Company.\n4. TREATMENT OF TRADE SECRETS AND CONFIDENTIAL INFORMATION . I understand and agree to treat whatever information the\nCompany wants to protect from disclosure as genuinely “confidential”, i.e., restricting access by pass code, stamping hardcopies of customer lists\n“confidential”, and restricting access to the customer list except by personnel, and the like. I further agree, as an Employee, to use my best efforts\nand the utmost diligence to guard and protect the Company’s Trade Secrets and Confidential Information from disclosure to any competitor,\ncustomer or supplier of the Company or any other person, firm, corporation or other entity, unless such disclosure has been specifically authorized\nby the Company in writing.\nE. Ownership of Work Product. For purposes of this Agreement, “Work Product” shall mean the data, materials, documentation, computer programs,\nsource code, object code, inventions (whether or not patentable), and all works of authorship, including all worldwide rights therein under patent,\ncopyright, trade secret, confidential information, and other property rights, created or developed in whole or in part by me, whether prior to the date\nof this Agreement or in the future, either (i) while employed by the Company and that have been or will be paid for by the Company, or (ii) while\nemployed by the Company (whether developed during working hours or not) and not otherwise the subject of a written agreement between the\nCompany and me. All Work Product shall be considered work made for hire by me and owned by the Company; provided, however, that I shall be\nentitled to retain all rights in work performed outside of my normal work hours so long as I have not used any confidential information, trade secrets\nor other assets of the Company to perform such work. If any of the Work Product may not, by operation of law, be considered work made for hire by\nme for the Company, or if ownership of all rights, title, and interest of the intellectual property rights therein shall not\notherwise vest exclusively in the Company, I hereby assign to the Company, and upon the future creation thereof automatically assign to the\nCompany without further consideration, the ownership of all Work Product. The Company shall have the right to obtain and hold in its own name\npatents, copyrights, registrations and any other protection available in the Work Product. I agree to perform, during and after my employment, such\nfurther acts as may be necessary or desirable to transfer, perfect, and defend the Company’s ownership of the Work Product as reasonably requested\nby the Company.\nF. Return of Company Property. All Company property, including, but not limited to, equipment, devices, records, correspondence, documents, files,\nreports, studies, manuals, compilations, drawings, blueprints, sketches, videos, memoranda, computer software and programs, data or any other\ninformation, including Trade Secrets and Confidential Information as set forth herein, (whether originals, copies or extracts), whether prepared or\ndeveloped by me or otherwise coming into my possession, whether maintained by me in the facilities of the Company, at my home, or at any other\nlocation, is, and shall remain, the exclusive property of the Company and shall be promptly delivered to the Company, with no copies or\nreproductions retained by me, in the event of my termination for any reason, or at any other time or times the Company may request. Upon\ntermination of employment for any reason, I agree to sign and deliver the “Termination Certification” attached hereto as Exhibit “A”.\nG. Reasonable Restrictions. I agree and acknowledge that the restrictions contained in this Agreement are reasonable and necessary in order to\nprotect the valuable propriety assets, goodwill and business of the Company and that the restrictions will not prevent or unreasonably restrict my\nability to earn a livelihood. I also agree and acknowledge that if my employment with the Company ends for any reason, I will be able to earn a\nlivelihood without violating the restrictions contained in this Agreement and that my ability to earn a livelihood without violating said restrictions is\nan important reason in my choosing to sign this Agreement. Notwithstanding anything herein to the contrary, if for any reason the Employee is\nterminated before the expiration of six (6) months from the date of employment, then and in that event the provisions of subparagraph C above shall\nbe null and void and of no effect, and further provided, that all other terms and conditions shall be fully enforceable.\nH. At-Will Employment. I acknowledge that nothing contained herein is intended to constitute a contract of continued employment, but instead I\nrecognize and acknowledge that my employment with the Company is on an “at-will” basis and may be terminated by either myself or the Company\nat any time, for any reason or for no reason, with or without cause, and with or without notice.\nBy signing this Agreement, I indicate that I have read, accepted and agreed to its terms.\nIN WITNESS WHEREOF, I have executed this Agreement under seal on the date shown below.\nEMPLOYEE\nJeffrey L. Levine,\nS.S . # (Intentionally Omitted)\n(Home address intentionally omitted)\nSignature\n/s/ Jeffrey L. Levine\n(SEAL)\nJeffrey L. Levine\nDate: February 16, 2005\nEXHIBIT A\nTERMINATION CERTIFICATION\nThe undersigned Employee certifies that he/she does not possess and has not failed to return any property belonging to Omni National Bank,\nits parent, subsidiaries, affiliates, successors or assigns (together, the “Company”), including, but not limited to, equipment, devices, records,\ncorrespondence, documents, files, reports, studies, manuals, compilations, drawings, blueprints, sketches, videos, memoranda, computer software\nand programs, data or any other information, including Trade Secrets and Confidential Information as set forth herein, (whether originals, copies or\nextracts), whether prepared or developed by Employee or otherwise coming into Employee’s possession, whether maintained by Employee in the\nfacilities of the Company, at Employee’s home, or at any other location.\nEmployee further certifies that he/she will comply with all the terms of his/her Non- Solicitation, Non-Competition, Non-Disclosure and\nConfidentiality Agreement.\nDate:\nEmployee	EX-10.4 10 dex104.htm NON-COMPETITION AGREEMENT\nExhibit 10.4\nNON-SOLICITATION, NON-COMPETITION,\nNON-DISCI.OSURE AND CONFIDENTIALITY AGREEMENT\nIn consideration of my employment or continued employment by Omni National Bank (“Company”) and in further consideration of a payment\nin the amount of Seventy Five Thousand ($75,000.00) Dollars, the receipt and sufficiency of which are hereby acknowledged, I, Jeffrey L. Levine,\nS.S. # (Intentionally Omitted), who resides at (Intentionally Omitted), (“Employee”) agree to the following:\nA. Non-Solicitation: Customers\nDuring my employment and for one (1) year immediately following the cessation of my employment with the Company for any reason, I shall\nnot, on my own behalf or on behalf of any person, firm, partnership, association, corporation or business organization, entity or enterprise (except\nCompany), solicit any customer of the Company, or any representative of any customer of the Company, with a view to selling or providing any\nproduct, equipment or service competitive with any product, equipment or service of the Company Business, as defined herein, during the twelve\n(12) month period immediately preceding cessation of my employment with the Company, provided that the restrictions set forth in this section shall\napply only to customers of the Company, or representatives of customers of the Company, with whom I had material contact during such twelve\n(12) month period. “Material contact” exists between myself and each of the Company’s existing customers: (i) with whom I actually dealt for a\nbusiness purpose while employed by the Company or to further a business relationship between the customer and the Company; or (ii) whose\nbusiness dealings with the Company were handled, coordinated or supervised by me.\nB. Non-Solicitation: Employees or Sales Representatives\nDuring my employment and for one (1) year immediately following the cessation of my employment with the Company for any reason, I will\nnot solicit or in any manner encourage employees of the Company to leave the employ of the Company. The foregoing prohibition applies only to\nemployees with whom I had material contact pursuant to my duties during the twelve (12) month period immediately preceding cessation of my\nemployment with the Company. “Material contact” means interaction between myself and another employee of the Company: (i) with whom I\nactually dealt; or (ii) whose employment or dealings with the Company or services for the Company were handled, coordinated or supervised by me.\nC. Non-competition. I acknowledge that my specialized skills, abilities and contacts are important to the success of the Company, and agree that I\nshall faithfully and strictly adhere to the terms hereof. I acknowledge that by reason of the character and nature of the Company’s business activities\nand operations, and further by reason of the scope of the territory in which I perform and will perform the Services (as defined below), in order to\nprotect the Company’s legitimate business interests it is necessary for me to agree not to engage in certain specified activities in such territory at any\ntime during my employment and for a period of time thereafter. Therefore, at all times during my employment with the Company, and for a period of\ntwo (2) years thereafter, I will not, directly or indirectly, within the Territory (as defined below), (a) for myself, (b) as a consultant, manager,\nsupervisor, employee or owner of a Competing Business\n \n(as defined below), or (c) as an independent contractor for a Competing Business, engage in any business in which I provide services which are the\nsame as or substantially similar to the Services. “Competing Business” shall mean any person, business or entity who or which sells, markets or\ndistributes products and/or sells, furnishes or provides services substantially the same as those sold, marketed, distributed, furnished or supplied by\nthe Company during the term of my employment with the Company. “Territory” shall mean the geographic area encompassed within a sixty\n(60) mile radius of the Company’s office at 1100 Abernathy Road, Atlanta, Georgia. I agree that the Company and I may amend the definition of\n“Territory” from and after the date hereof to reflect any significant contraction or expansion of the geographical area in which I actually perform the\nServices. “Services” shall mean the manager of the operations department for warehouse lending.\nD. Non-Disclosure\n1. TRADE SECRETS. I acknowledge that the Company is engaged in the business (“Company Business”) of Commercial and Retail Banking,\nand the Employee will be employed in a specialized area commonly referred to as: “redevelopment lending”. Redevelopment lending can be further\ndescribed as lending money to borrower who acquire dilapidated, inner-city single and multi-family homes, who after acquisition, re-habilitate those\nstructures for occupancy and/or sale. I acknowledge that this highly specialized area of lending is unique and to my knowledge there are no other\nbanks conducting this business in the geographical area as set forth above. I further acknowledge that prior to joining the Company, I was not\nemployed in this line of business. I further acknowledge that in order to conduct its business, the Company owns and uses trade secrets as defined\nunder applicable law (O.C.G.A. § 10-1-761(4)). “Trade secret(s)” means information, without regard to form, including, but not limited to, technical\nor non-technical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial\nplans, product plans, or a list of actual or potential customers or suppliers which is not commonly known by or available to the public and which\ninformation: (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means\nby, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the\ncircumstances to maintain its secrecy. I further acknowledge that in the course of my employment with the Company and in order to carry out my\nduties thereunder, I have or will become privy to the Trade Secrets of the Company. Accordingly, I shall not disclose, divulge, publish to others, or\nuse for any purpose, except as necessary to perform my duties while employed by the Company, any Trade Secret of the Company without the prior\nwritten consent of the Company for so long as such information shall remain a Trade Secret.\n2. CONFIDENTIAL INFORMATION. I acknowledge that in order to conduct its business, the Company owns and uses written and unwritten\nconfidential information. “Confidential Information” means data and information relating to the business of the Company (which may not rise to the\nlevel of a Trade Secret under applicable law) which is or has been disclosed to me or of which I became aware as a consequence of or through my\nrelationship with the Company and which has value to the Company and is not generally known to its competitors. Confidential Information shall\nnot include any data or information that has been voluntarily disclosed to the public by the Company (except where such public disclosure has been\nmade by me without authorization) or that has been independently developed and disclosed by others, or\nthat otherwise enters the public domain through lawful means. I further acknowledge that in the course of my employment with the Company and in\norder to carry out my duties thereunder, I have or will become privy to Confidential Information of the Company. Accordingly, I agree that while\nemployed by the Company, and for a period of two (2) years from the conclusion of my employment with the Company for any reason, I will not\ndisclose, divulge, publish to others or use for any purpose any Confidential Information of the Company except to the extent necessary to perform\nmy duties and responsibilities as an Employee for the Company, without the prior written consent of the Company.\n3. NOTICE OF TRADE SECRETS AND CONFIDENTIAL INFORMATION. I acknowledge that the Company hereby designates Trade\nSecrets and Confidential Information to include, without limitation, confidential customer and prospective customer lists; information provided to\nthe Company by its customers or clients or prospective customers or clients; customer preferences; client contacts; marketing plans, presentations\nand strategies; inventions, patents and discoveries reasonably related to the Company’s business or products and services of the Company that have\nnot previously been publicly released by the Company, “software,” computer or electronic data disks or tapes, “processes,” “designs,” “research,”\ncomputer programs; source code; object code; methods of operations and costs data; internal policies and procedures; contracts; personnel\ninformation; credit terms; financial information (including without limitation information regarding fee and pricing structures, assets, status of client\naccounts or credit); or any other information designated as a trade secret, confidential or proprietary by the Company.\n4. TREATMENT OF TRADE SECRETS AND CONFIDENTIAL INFORMATION. I understand and agree to treat whatever information the\nCompany wants to protect from disclosure as genuinely “confidential”, i.e., restricting access by pass code, stamping hardcopies of customer lists\n“confidential”, and restricting access to the customer list except by personnel, and the like. I further agree, as an Employee, to use my best efforts\nand the utmost diligence to guard and protect the Company’s Trade Secrets and Confidential Information from disclosure to any competitor,\ncustomer or supplier of the Company or any other person, firm, corporation or other entity, unless such disclosure has been specifically authorized\nby the Company in writing.\nE. Ownership of Work Product. For purposes of this Agreement, “Work Product” shall mean the data, materials, documentation, computer programs,\nsource code, object code, inventions (whether or not patentable), and all works of authorship, including all worldwide rights therein under patent,\ncopyright, trade secret, confidential information, and other property rights, created or developed in whole or in part by me, whether prior to the date\nof this Agreement or in the future, either (i) while employed by the Company and that have been or will be paid for by the Company, or (ii) while\nemployed by the Company (whether developed during working hours or not) and not otherwise the subject of a written agreement between the\nCompany and me. All Work Product shall be considered work made for hire by me and owned by the Company; provided, however, that I shall be\nentitled to retain all rights in work performed outside of my normal work hours so long as I have not used any confidential information, trade secrets\nor other assets of the Company to perform such work. If any of the Work Product may not, by operation of law, be considered work made for hire by\nme for the Company, or if ownership of all rights, title, and interest of the intellectual property rights therein shall not\notherwise vest exclusively in the Company, I hereby assign to the Company, and upon the future creation thereof automatically assign to the\nCompany without further consideration, the ownership of all Work Product. The Company shall have the right to obtain and hold in its own name\npatents, copyrights, registrations and any other protection available in the Work Product. I agree to perform, during and after my employment, such\nfurther acts as may be necessary or desirable to transfer, perfect, and defend the Company’s ownership of the Work Product as reasonably requested\nby the Company.\nreports, studies, manuals, compilations, drawings, blueprints, sketches, videos, memoranda, computer software and programs, data or any other\ninformation, including Trade Secrets and Confidential Information as set forth herein, (whether originals, copies or extracts), whether prepared or\ndeveloped by me or otherwise coming into my possession, whether maintained by me in the facilities of the Company, at my home, or at any other\nlocation, is, and shall remain, the exclusive property of the Company and shall be promptly delivered to the Company, with no copies or\nreproductions retained by me, in the event of my termination for any reason, or at any other time or times the Company may request. Upon\ntermination of employment for any reason, I agree to sign and deliver the “Termination Certification” attached hereto as Exhibit “A”.\nG. Reasonable Restrictions. I agree and acknowledge that the restrictions contained in this Agreement are reasonable and necessary in order to\nprotect the valuable propriety assets, goodwill and business of the Company and that the restrictions will not prevent or unreasonably restrict my\nability to earn a livelihood. I also agree and acknowledge that if my employment with the Company ends for any reason, I will be able to earn a\nlivelihood without violating the restrictions contained in this Agreement and that my ability to earn a livelihood without violating said restrictions is\nan important reason in my choosing to sign this Agreement. Notwithstanding anything herein to the contrary, if for any reason the Employee is\nterminated before the expiration of six (6) months from the date of employment, then and in that event the provisions of subparagraph C above shall\nbe null and void and of no effect, and further provided, that all other terms and conditions shall be fully enforceable.\nH. At-Will Employment. I acknowledge that nothing contained herein is intended to constitute a contract of continued employment, but instead I\nrecognize and acknowledge that my employment with the Company is on an “at-will” basis and may be terminated by either myself or the Company\nat any time, for any reason or for no reason, with or without cause, and with or without notice.\nBy signing this Agreement, I indicate that I have read, accepted and agreed to its terms.\nIN WITNESS WHEREOF, I have executed this Agreement under seal on the date shown below.\nEMPLOYEE\nJeffrey L. Levine,\nS.S. # (Intentionally Omitted)\n(Home address intentionally omitted)\nSignature /s/ Jeffrey L. Levine (SEAL)\nJeffrey L. Levine\nDate: February 16, 2005\nEXHIBIT A\nTERMINATION CERTIFICATION\nThe undersigned Employee certifies that he/she does not possess and has not failed to return any property belonging to Omni National Bank,\nits parent, subsidiaries, affiliates, successors or assigns (together, the “Company”), including, but not limited to, equipment, devices, records,\ncorrespondence, documents, files, reports, studies, manuals, compilations, drawings, blueprints, sketches, videos, memoranda, computer software\nand programs, data or any other information, including Trade Secrets and Confidential Information as set forth herein, (whether originals, copies or\nextracts), whether prepared or developed by Employee or otherwise coming into Employee’s possession, whether maintained by Employee in the\nfacilities of the Company, at Employee’s home, or at any other location.\nEmployee further certifies that he/she will comply with all the terms of his/her Non- Solicitation, Non-Competition, Non-Disclosure and\nConfidentiality Agreement.\nDate:\nEmployee	EX-10.4 10 dex104.htm NON-COMPETITION AGREEMENT\nExhibit 10.4\nNON-SOLICITATION, NON-COMPETITION,\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nIn consideration of my employment or continued employment by Omni National Bank ("Company") and in further consideration of a payment\nin the amount of Seventy Five Thousand ($75,000.00) Dollars, the receipt and sufficiency of which are hereby acknowledged, I, Jeffrey L. Levine,\nS.S. # (Intentionally. Omitted), who resides at (Intentionally Omitted), ("Employee") agree to the following:\nA.\nNon-Solicitation: Customers\nDuring my employment and for one (1) year immediately following the cessation of my employment with the Company for any reason, I shall\nnot, on my own behalf or on behalf of any person, firm, partnership, association, corporation or business organization, entity or enterprise (except\nCompany), solicit any customer of the Company, or any representative of any customer of the Company, with a view to selling or providing any\nproduct, equipment or service competitive with any product, equipment or service of the Company Business, as defined herein, during the twelve\n(12) month period immediately preceding cessation of my employment with the Company, provided that the restrictions set forth in this section shall\napply only to customers of the Company, or representatives of customers of the Company, with whom I had material contact during such twelve\n(12) month period. "Material contact" exists between myself and each of the Company's existing customers: (i) with whom I actually dealt for a\nbusiness purpose while employed by the Company or to further a business relationship between the customer and the Company; or (ii) whose\nbusiness dealings with the Company were handled, coordinated or supervised by me.\nB.\nNon-Solicitation: Employees or Sales Representatives\nDuring my employment and for one (1) year immediately following the cessation of my employment with the Company for any reason, I will\nnot solicit or in any manner encourage employees of the Company to leave the employ of the Company. The foregoing prohibition applies only to\nemployees with whom I had material contact pursuant to my duties during the twelve (12) month period immediately preceding cessation of my\nemployment with the Company. "Material contact" means interaction between myself and another employee of the Company: (i) with whom I\nactually dealt; or (ii) whose employment or dealings with the Company or services for the Company were handled, coordinated or supervised by me.\nC. Non-competition. I acknowledge that my specialized skills, abilities and contacts are important to the success of the Company, and agree that\nI\nshall faithfully and strictly adhere to the terms hereof. I acknowledge that by reason of the character and nature of the Company's business activities\nand operations, and further by reason of the scope of the territory in which I perform and will perform the Services (as defined below), in order\nto\nprotect the Company's legitimate business interests it is necessary for me to agree not to engage in certain specified activities in such territory at any\ntime during my employment and for a period of time thereafter. Therefore, at all times during my employment with the Company, and for a period of\ntwo (2) years thereafter, I will not, directly or indirectly, within the Territory (as defined below), (a) for myself, (b) as a consultant, manager,\nsupervisor, employee or owner of a Competing Business\n(as defined below), or (c) as an independent contractor for a Competing Business, engage in any business in which I provide services which are the\nsame as or substantially similar to the Services. "Competing Business" shall mean any person, business or entity who or which sells, markets or\ndistributes products and/or sells, furnishes or provides services substantially the same as those sold, marketed, distributed, furnished or supplied by\nthe Company during the term of my employment with the Company. "Territory" shall mean the geographic area encompassed within a sixty\n(60) mile radius of the Company's office at 1100 Abernathy Road, Atlanta, Georgia. I agree that the Company and I may amend the definition of\n"Territory" from and after the date hereof to reflect any significant contraction or expansion of the geographical area in which I actually perform the\nServices. "Services" shall mean the manager of the operations department for warehouse lending.\nD. Non-Disclosure\n1. TRADE SECRETS. I acknowledge that the Company is engaged in the business ("Company Business") of Commercial and Retail Banking,\nand the Employee will be employed in a specialized area commonly referred to as: "redevelopment lending". Redevelopment lending can be further\ndescribed as lending money to borrower who acquire dilapidated, inner-city single and multi-family homes, who after acquisition, re-habilitate those\nstructures for occupancy and/or sale. I acknowledge that this highly specialized area of lending is unique and to my knowledge there are no other\nbanks conducting this business in the geographical area as set forth above. I further acknowledge that prior to joining the Company, I was not\nemployed in this line of business. I further acknowledge that in order to conduct its business, the Company owns and uses trade secrets as defined\nunder applicable law (O.C.G.A. 8 10-1-761(4)). "Trade secret(s)" means information, without regard to form, including, but not limited to, technical\nor non-technical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial\nplans, product plans, or a list of actual or potential customers or suppliers which is not commonly known by or available to the public and which\ninformation: (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means\nby, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the\ncircumstances to maintain its secrecy. I further acknowledge that in the course of my employment with the Company and in order to carry out my\nduties thereunder, I have or will become privy to the Trade Secrets of the Company. Accordingly, I shall not disclose, divulge, publish to others, or\nuse for any purpose, except as necessary to perform my duties while employed by the Company, any Trade Secret of the Company without the prior\nwritten consent of the Company for so long as such information shall remain a Trade Secret.\n2. CONFIDENTIAL INFORMATION. I acknowledge that in order to conduct its business, the Company owns and uses written and unwritten\nconfidential information. "Confidential Information" means data and information relating to the business of the Company (which may not rise to the\nlevel of a Trade Secret under applicable law) which is or has been disclosed to me or of which I became aware as a consequence of or through my\nrelationship with the Company and which has value to the Company and is not generally known to its competitors. Confidential Information shall\nnot include any data or information that has been voluntarily disclosed to the public by the Company (except where such public disclosure has been\nmade by me without authorization) or that has been independently developed and disclosed by others, or\nthat otherwise enters the public domain through lawful means. I further acknowledge that in the course of my employment with the Company and in\norder to carry out my duties thereunder, I have or will become privy to Confidential Information of the Company. Accordingly, I agree that while\nemployed by the Company, and for a period of two (2) years from the conclusion of my employment with the Company for any reason, I will not\ndisclose, divulge, publish to others or use for any purpose any Confidential Information of the Company except to the extent necessary to perform\nmy duties and responsibilities as an Employee for the Company, without the prior written consent of the Company.\n3. NOTICE OF TRADE SECRETS AND CONFIDENTIAL INFORMATION. I acknowledge that the Company hereby designates Trade\nSecrets and Confidential Information to include, without limitation, confidential customer and prospective customer lists; information provided\nto\nthe Company by its customers or clients or prospective customers or clients; customer preferences; client contacts; marketing plans, presentations\nand strategies; inventions, patents and discoveries reasonably related to the Company's business or products and services of the Company that\nhave\nnot previously been publicly released by the Company, "software," computer or electronic data disks or tapes, "processes," "designs," "research,"\ncomputer programs; source code; object code; methods of operations and costs data; internal policies and procedures; contracts; personne\ninformation; credit terms; financial information (including without limitation information regarding fee and pricing structures, assets, status of client\naccounts or credit); or any other information designated as a trade secret, confidential or proprietary by the Company.\n4. TREATMENT OF TRADE SECRETS AND CONFIDENTIAL INFORMATION. I understand and agree to treat whatever information the\nCompany wants to protect from disclosure as genuinely "confidential", i.e., restricting access by pass code, stamping hardcopies of customer lists\n"confidential", and restricting access to the customer list except by personnel, and the like. I further agree, as an Employee, to use my best efforts\nand the utmost diligence to guard and protect the Company's Trade Secrets and Confidential Information from disclosure to any competitor,\ncustomer or supplier of the Company or any other person, firm, corporation or other entity, unless such disclosure has been specifically authorized\nby the Company in writing.\nE. Ownership of Work Product. For purposes of this Agreement, "Work Product" shall mean the data, materials, documentation, computer programs,\nsource code, object code, inventions (whether or not patentable), and all works of authorship, including all worldwide rights therein under patent,\ncopyright, trade secret, confidential information, and other property rights, created or developed in whole or in part by me, whether prior to the date\nof this Agreement or in the future, either (i) while employed by the Company and that have been or will be paid for by the Company, or (ii) while\nemployed by the Company (whether developed during working hours or not) and not otherwise the subject of a written agreement between the\nCompany and me. All Work Product shall be considered work made for hire by me and owned by the Company; provided, however, that I shall be\nentitled to retain all rights in work performed outside of my normal work hours so long as I have not used any confidential information, trade secrets\nor other assets of the Company to perform such work. If any of the Work Product may not, by operation of law, be considered work made for hire by\nme for the Company, or if ownership of all rights, title, and interest of the intellectual property rights therein shall not\notherwise vest exclusively in the Company, I hereby assign to the Company, and upon the future creation thereof automatically assign to the\nCompany without further consideration, the ownership of all Work Product. The Company shall have the right to obtain and hold in its own name\npatents, copyrights, registrations and any other protection available in the Work Product. I agree to perform, during and after my employment, such\nfurther acts as may be necessary or desirable to transfer, perfect, and defend the Company's ownership of the Work Product as reasonably requested\nby the Company.\nF. Return of Company Property.. All Company property, including, but not limited to, equipment, devices, records, correspondence, documents, files,\nreports, studies, manuals, compilations, drawings, blueprints, sketches, videos, memoranda, computer software and programs, data or any other\ninformation, including Trade Secrets and Confidential Information as set forth herein, (whether originals, copies or extracts), whether prepared\nor\ndeveloped by me or otherwise coming into my possession, whether maintained by me in the facilities of the Company, at my home, or at any other\nlocation, is, and shall remain, the exclusive property of the Company and shall be promptly delivered to the Company, with no copies or\nreproductions retained by me, in the event of my termination for any reason, or at any other time or times the Company may request. Upon\ntermination of employment for any reason, I agree to sign and deliver the "Termination Certification" attached hereto as Exhibit "A".\nG. Reasonable Restrictions. I agree and acknowledge that the restrictions contained in this Agreement are reasonable and necessary in order to\nprotect the valuable propriety assets, goodwil and business of the Company and that the restrictions will not prevent or unreasonably restrict\nmy\nability to earn a livelihood. I also agree and acknowledge that if my employment with the Company ends for any reason, I will be able to earn\na\nlivelihood without violating the restrictions contained in this Agreement and that my ability to earn a livelihood without violating said restrictions\nis\nan important reason in my choosing to sign this Agreement. Notwithstanding anything herein to the contrary, if for any reason the Employee is\nterminated before the expiration of six (6) months from the date of employment, then and in that event the provisions of subparagraph C above shall\nbe null and void and of no effect, and further provided, that all other terms and conditions shall be fully enforceable.\nH. At-Will Employment. I acknowledge that nothing contained herein is intended to constitute a contract of continued employment, but instead\nI\nrecognize and acknowledge that my employment with the Company is on an "at-will" basis and may be terminated by either myself or the Company\nat any time, for any reason or for no reason, with or without cause, and with or without notice.\nBy signing this Agreement, I indicate that I have read, accepted and agreed to its terms.\nIN WITNESS WHEREOF, I have executed this Agreement under seal on the date shown below.\nEMPLOYEE\nJeffrey L. Levine,\nS.S. # (Intentionally Omitted)\n(Home address intentionally omitted)\nSignature\n/s/ Jeffrey L. Levine\n(SEAL)\nJeffrey L. Levine\nDate: February 16, 2005\nEXHIBIT A\nTERMINATION CERTIFICATION\nThe undersigned Employee certifies that he/she does not possess and has not failed to return any property belonging to Omni National Bank,\nits parent, subsidiaries, affiliates, successors or assigns (together, the "Company"), including, but not limited to, equipment, devices, records,\ncorrespondence, documents, files, reports, studies, manuals, compilations, drawings, blueprints, sketches, videos, memoranda, computer software\nand programs, data or any other information, including Trade Secrets and Confidential Information as set forth herein, (whether originals, copies or\nextracts), whether prepared or developed by Employee or otherwise coming into Employee's possession, whether maintained by Employee in the\nfacilities of the Company, at Employee's home, or at any other location.\nEmployee further certifies that he/she will comply with all the terms of his/her Non- Solicitation, Non-Competition, Non-Disclosure and\nConfidentiality Agreement.\nDate:\nEmployee	EX-10.4 10 dex104.htm NON-COMPETITION AGREEMENT\nExhibit 10.4\nNON-SOLICITATION, NON-COMPETITION,\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nIn consideration of my employment or continued employment by Omni National Bank (“Company”) and in further consideration of a payment\nin the amount of Seventy Five Thousand ($75,000.00) Dollars, the receipt and sufficiency of which are hereby acknowledged, I, Jeffrey L. Levine,\nS.S . # (Intentionally Omitted), who resides at (Intentionally Omitted), (“Employee”) agree to the following:\nA. Non-Solicitation: Customers\nDuring my employment and for one (1) year immediately following the cessation of my employment with the Company for any reason, I shall\nnot, on my own behalf or on behalf of any person, firm, partnership, association, corporation or business organization, entity or enterprise (except\nCompany), solicit any customer of the Company, or any representative of any customer of the Company, with a view to selling or providing any\nproduct, equipment or service competitive with any product, equipment or service of the Company Business, as defined herein, during the twelve\n(12) month period immediately preceding cessation of my employment with the Company, provided that the restrictions set forth in this section shall\napply only to customers of the Company, or representatives of customers of the Company, with whom I had material contact during such twelve\n(12) month period. “Material contact” exists between myself and each of the Company’s existing customers: (i) with whom I actually dealt for a\nbusiness purpose while employed by the Company or to further a business relationship between the customer and the Company; or (ii) whose\nbusiness dealings with the Company were handled, coordinated or supervised by me.\nB. Non-Solicitation: Employees or Sales Representatives\nDuring my employment and for one (1) year immediately following the cessation of my employment with the Company for any reason, I will\nnot solicit or in any manner encourage employees of the Company to leave the employ of the Company. The foregoing prohibition applies only to\nemployees with whom I had material contact pursuant to my duties during the twelve (12) month period immediately preceding cessation of my\nemployment with the Company. “Material contact” means interaction between myself and another employee of the Company: (i) with whom I\nactually dealt; or (ii) whose employment or dealings with the Company or services for the Company were handled, coordinated or supervised by me.\nC. Non-competition. I acknowledge that my specialized skills, abilities and contacts are important to the success of the Company, and agree that I\nshall faithfully and strictly adhere to the terms hereof. I acknowledge that by reason of the character and nature of the Company’s business activities\nand operations, and further by reason of the scope of the territory in which I perform and will perform the Services (as defined below), in order to\nprotect the Company’s legitimate business interests it is necessary for me to agree not to engage in certain specified activities in such territory at any\ntime during my employment and for a period of time thereafter. Therefore, at all times during my employment with the Company, and for a period of\ntwo (2) years thereafter, I will not, directly or indirectly, within the Territory (as defined below), (a) for myself, (b) as a consultant, manager,\nsupervisor, employee or owner of a Competing Business\n(as defined below), or (c) as an independent contractor for a Competing Business, engage in any business in which I provide services which are the\nsame as or substantially similar to the Services. “Competing Business” shall mean any person, business or entity who or which sells, markets or\ndistributes products and/or sells, furnishes or provides services substantially the same as those sold, marketed, distributed, furnished or supplied by\nthe Company during the term of my employment with the Company. “Territory” shall mean the geographic area encompassed within a sixty\n(60) mile radius of the Company’s office at 1100 Abernathy Road, Atlanta, Georgia. I agree that the Company and I may amend the definition of\n“Territory” from and after the date hereof to reflect any significant contraction or expansion of the geographical area in which I actually perform the\nServices. “Services” shall mean the manager of the operations department for warehouse lending.\nD. Non-Disclosure\n1. TRADE SECRETS . I acknowledge that the Company is engaged in the business (“Company Business”) of Commercial and Retail Banking,\nand the Employee will be employed in a specialized area commonly referred to as: “redevelopment lending”. Redevelopment lending can be further\ndescribed as lending money to borrower who acquire dilapidated, inner-city single and multi-family homes, who after acquisition, re-habilitate those\nstructures for occupancy and/or sale. I acknowledge that this highly specialized area of lending is unique and to my knowledge there are no other\nbanks conducting this business in the geographical area as set forth above. I further acknowledge that prior to joining the Company, I was not\nemployed in this line of business. I further acknowledge that in order to conduct its business, the Company owns and uses trade secrets as defined\nunder applicable law (O.C.G.A. § 10-1 -761(4)). “Trade secret(s)” means information, without regard to form, including, but not limited to, technical\nor non-technical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial\nplans, product plans, or a list of actual or potential customers or suppliers which is not commonly known by or available to the public and which\ninformation: (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means\nby, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the\ncircumstances to maintain its secrecy. I further acknowledge that in the course of my employment with the Company and in order to carry out my\nduties thereunder, I have or will become privy to the Trade Secrets of the Company. Accordingly, I shall not disclose, divulge, publish to others, or\nuse for any purpose, except as necessary to perform my duties while employed by the Company, any Trade Secret of the Company without the prior\nwritten consent of the Company for so long as such information shall remain a Trade Secret.\n2. CONFIDENTIAL INFORMATION. I acknowledge that in order to conduct its business, the Company owns and uses written and unwritten\nconfidential information. “Confidential Information” means data and information relating to the business of the Company (which may not rise to the\nlevel of a Trade Secret under applicable law) which is or has been disclosed to me or of which I became aware as a consequence of or through my\nrelationship with the Company and which has value to the Company and is not generally known to its competitors. Confidential Information shall\nnot include any data or information that has been voluntarily disclosed to the public by the Company (except where such public disclosure has been\nmade by me without authorization) or that has been independently developed and disclosed by others, or\nthat otherwise enters the public domain through lawful means. I further acknowledge that in the course of my employment with the Company and in\norder to carry out my duties thereunder, I have or will become privy to Confidential Information of the Company. Accordingly, I agree that while\nemployed by the Company, and for a period of two (2) years from the conclusion of my employment with the Company for any reason, I will not\ndisclose, divulge, publish to others or use for any purpose any Confidential Information of the Company except to the extent necessary to perform\nmy duties and responsibilities as an Employee for the Company, without the prior written consent of the Company.\n3. NOTICE OF TRADE SECRETS AND CONFIDENTIAL INFORMATION . I acknowledge that the Company hereby designates Trade\nSecrets and Confidential Information to include, without limitation, confidential customer and prospective customer lists; information provided to\nthe Company by its customers or clients or prospective customers or clients; customer preferences; client contacts; marketing plans, presentations\nand strategies; inventions, patents and discoveries reasonably related to the Company’s business or products and services of the Company that have\nnot previously been publicly released by the Company, “software,” computer or electronic data disks or tapes, “processes,” “designs,” “research,”\ncomputer programs; source code; object code; methods of operations and costs data; internal policies and procedures; contracts; personnel\ninformation; credit terms; financial information (including without limitation information regarding fee and pricing structures, assets, status of client\naccounts or credit); or any other information designated as a trade secret, confidential or proprietary by the Company.\n4. TREATMENT OF TRADE SECRETS AND CONFIDENTIAL INFORMATION . I understand and agree to treat whatever information the\nCompany wants to protect from disclosure as genuinely “confidential”, i.e., restricting access by pass code, stamping hardcopies of customer lists\n“confidential”, and restricting access to the customer list except by personnel, and the like. I further agree, as an Employee, to use my best efforts\nand the utmost diligence to guard and protect the Company’s Trade Secrets and Confidential Information from disclosure to any competitor,\ncustomer or supplier of the Company or any other person, firm, corporation or other entity, unless such disclosure has been specifically authorized\nby the Company in writing.\nE. Ownership of Work Product. For purposes of this Agreement, “Work Product” shall mean the data, materials, documentation, computer programs,\nsource code, object code, inventions (whether or not patentable), and all works of authorship, including all worldwide rights therein under patent,\ncopyright, trade secret, confidential information, and other property rights, created or developed in whole or in part by me, whether prior to the date\nof this Agreement or in the future, either (i) while employed by the Company and that have been or will be paid for by the Company, or (ii) while\nemployed by the Company (whether developed during working hours or not) and not otherwise the subject of a written agreement between the\nCompany and me. All Work Product shall be considered work made for hire by me and owned by the Company; provided, however, that I shall be\nentitled to retain all rights in work performed outside of my normal work hours so long as I have not used any confidential information, trade secrets\nor other assets of the Company to perform such work. If any of the Work Product may not, by operation of law, be considered work made for hire by\nme for the Company, or if ownership of all rights, title, and interest of the intellectual property rights therein shall not\notherwise vest exclusively in the Company, I hereby assign to the Company, and upon the future creation thereof automatically assign to the\nCompany without further consideration, the ownership of all Work Product. The Company shall have the right to obtain and hold in its own name\npatents, copyrights, registrations and any other protection available in the Work Product. I agree to perform, during and after my employment, such\nfurther acts as may be necessary or desirable to transfer, perfect, and defend the Company’s ownership of the Work Product as reasonably requested\nby the Company.\nF. Return of Company Property. All Company property, including, but not limited to, equipment, devices, records, correspondence, documents, files,\nreports, studies, manuals, compilations, drawings, blueprints, sketches, videos, memoranda, computer software and programs, data or any other\ninformation, including Trade Secrets and Confidential Information as set forth herein, (whether originals, copies or extracts), whether prepared or\ndeveloped by me or otherwise coming into my possession, whether maintained by me in the facilities of the Company, at my home, or at any other\nlocation, is, and shall remain, the exclusive property of the Company and shall be promptly delivered to the Company, with no copies or\nreproductions retained by me, in the event of my termination for any reason, or at any other time or times the Company may request. Upon\ntermination of employment for any reason, I agree to sign and deliver the “Termination Certification” attached hereto as Exhibit “A”.\nG. Reasonable Restrictions. I agree and acknowledge that the restrictions contained in this Agreement are reasonable and necessary in order to\nprotect the valuable propriety assets, goodwill and business of the Company and that the restrictions will not prevent or unreasonably restrict my\nability to earn a livelihood. I also agree and acknowledge that if my employment with the Company ends for any reason, I will be able to earn a\nlivelihood without violating the restrictions contained in this Agreement and that my ability to earn a livelihood without violating said restrictions is\nan important reason in my choosing to sign this Agreement. Notwithstanding anything herein to the contrary, if for any reason the Employee is\nterminated before the expiration of six (6) months from the date of employment, then and in that event the provisions of subparagraph C above shall\nbe null and void and of no effect, and further provided, that all other terms and conditions shall be fully enforceable.\nH. At-Will Employment. I acknowledge that nothing contained herein is intended to constitute a contract of continued employment, but instead I\nrecognize and acknowledge that my employment with the Company is on an “at-will” basis and may be terminated by either myself or the Company\nat any time, for any reason or for no reason, with or without cause, and with or without notice.\nBy signing this Agreement, I indicate that I have read, accepted and agreed to its terms.\nIN WITNESS WHEREOF, I have executed this Agreement under seal on the date shown below.\nEMPLOYEE\nJeffrey L. Levine,\nS.S . # (Intentionally Omitted)\n(Home address intentionally omitted)\nSignature\n/s/ Jeffrey L. Levine\n(SEAL)\nJeffrey L. Levine\nDate: February 16, 2005\nEXHIBIT A\nTERMINATION CERTIFICATION\nThe undersigned Employee certifies that he/she does not possess and has not failed to return any property belonging to Omni National Bank,\nits parent, subsidiaries, affiliates, successors or assigns (together, the “Company”), including, but not limited to, equipment, devices, records,\ncorrespondence, documents, files, reports, studies, manuals, compilations, drawings, blueprints, sketches, videos, memoranda, computer software\nand programs, data or any other information, including Trade Secrets and Confidential Information as set forth herein, (whether originals, copies or\nextracts), whether prepared or developed by Employee or otherwise coming into Employee’s possession, whether maintained by Employee in the\nfacilities of the Company, at Employee’s home, or at any other location.\nEmployee further certifies that he/she will comply with all the terms of his/her Non- Solicitation, Non-Competition, Non-Disclosure and\nConfidentiality Agreement.\nDate:\nEmployee
+96e343b9123175bd6625537e27275ee0.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 8 d875156dex99d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of November 26, 2014 between E2open, Inc., a Delaware\ncorporation (“E2open”) and Insight Venture Partners, LLC (“Insight”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving E2open and Insight (or one or more of\nits affiliates) (E2open and Insight referred to collectively as the “Parties” and individually as a “Party”), each Party has either requested or may\nrequest access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is\nreferred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such\ninformation and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 4 below, neither the Recipient nor any of the\nRecipient’s Representatives (as defined in Section 15 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider ’s Confidential Information (as defined in Section 13 below), except for the specific purpose of\nconsidering, evaluating, negotiating and implementing a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 15 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or\nconduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own\nexpense) take actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider ’s\nConfidential Information.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A or any investment banks or outside\nlegal counsel retained by the Provider in connection with the possible transaction (the “Provider Contact Person”). Neither the Recipient nor\nany of the Recipient’s Representatives will contact or otherwise communicate with any other Representative or employee of the Provider in\nconnection with a possible transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. The Provider Contact Person will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of the\nProvider ’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously\nfurnished. Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the\naccuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any\nliability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United\nStates federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. The Recipient and its Representatives are not\n1\nentitled to, and will not, rely on the accuracy or completeness of any of the Provider’s Confidential Information. Only those representations and\nwarranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction\nbetween the Parties (or one or more of their respective affiliates) and is validly executed on behalf of the Parties or such affiliates (a “Definitive\nAgreement”) will have legal effect. For purposes of this Agreement, the term “Definitive Agreement” does not include an executed letter of\nintent, term sheet or any other preliminary written agreement (whether or not binding in whole or in part). The Provider and its Representatives\nexpressly disclaim any duty (express or implied) to update, supplement or correct any of the Provider’s Confidential Information regardless of\nthe circumstances.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof, provided such consent is sought prior to any such disclosure;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of\nevaluating, negotiating or implementing a possible negotiated transaction between the Parties (or one or more of their affiliates), and\n(B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound\nby confidentiality obligations at least as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other\nvalid legal process to disclose any of the Provider ’s Confidential Information to any Person, then the Recipient will, to the extent not prohibited\nby law, promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective\norder or other appropriate remedy. The Recipient and its Representatives will reasonably cooperate with the Provider and the Provider’s\nRepresentatives in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is\nunsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential\nInformation of the Provider, then the Recipient may disclose such Confidential Information to the extent required; provided, however, that the\nRecipient and its Representatives will use their reasonable best efforts to ensure that such Confidential Information is treated confidentially by\neach Person to whom it is disclosed. Notwithstanding the foregoing, Recipient and its Representatives (a) may disclose Confidential Information\nin connection with routine supervisory audit or regulatory examinations (including, without limitation, by regulatory or self-regulatory bodies) to\nwhich they are subject in the course of their respective businesses without liability hereunder and (b) shall not be required to provide notice to\nany party in the course of any such routine supervisory audit or regulatory examination, provided that such routine audit or examination does not\nspecifically target the Provider or the Confidential Information.\n5. Return of Confidential Information. Upon the Provider ’s written request, the Recipient and the Recipient’s Representatives will\npromptly deliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or\nany of the Recipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any written materials containing Confidential\nInformation of the Provider, the Recipient may destroy such written\n2\nmaterials and deliver to the Provider written confirmation of their destruction. Notwithstanding the foregoing, Recipient and its Representatives\nshall (i) be permitted to retain copies of the Confidential Information in accordance with policies and procedures implemented by Recipient or\nsuch Representatives, as the case may be, in order to comply with applicable law, regulation or professional standards, or for actual or anticipated\nlitigation, and (ii) not be required to destroy any computer records or files containing Confidential Information that have been created pursuant to\narchiving and back-up procedures. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information\nof the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and\nother obligations under this Agreement.\n6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, Insight agrees that it will\nnot and will not permit any of its Representatives or any direct or indirect subsidiary of Insight to solicit for employment with Insight or with any\nof its direct or indirect subsidiaries any employee of the E2open or any subsidiary of E2open; provided, however, that this Section 6 will not\nprevent Insight or its direct or indirect subsidiaries from causing to be placed any general advertisement or similar notice that is not targeted\nspecifically at employees of the E2open or its subsidiaries.\n7. Standstill Provision for E2open.\n(a) During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Insight nor any of\nInsight’s Representatives on behalf of Insight will, in any manner, directly or indirectly:\n(i) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of E2open or any\nsecurities (including derivatives thereof) of any subsidiary or other affiliate of E2open, (ii) any acquisition of any assets of E2open or any assets\nof any subsidiary, division or other affiliate of E2open, (iii) any tender offer, exchange offer, merger, business combination, recapitalization,\nrestructuring, liquidation, dissolution or extraordinary transaction involving E2open or any subsidiary or other affiliate of E2open or involving\nany securities or assets of E2open or any securities or assets of any subsidiary, division or other affiliate of E2open, or (iv) any “solicitation” of\n“proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of\nE2open;\n(ii) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934, as amended, and the rules\npromulgated thereunder) with respect to the beneficial ownership of any securities of E2open or any subsidiary or division of E2open;\n(iii) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of\nE2open;\n(iv) take any action that might require E2open to make a public announcement regarding any of the types of matters set forth\nin clause “(a)” of this sentence;\n(v) agree or offer to take, or seek, encourage or propose (publicly or otherwise) the taking of, any action referred to in clause\n“(a)”, “(b)”, “(c)” or “(d)” of this sentence;\n(vi) assist, induce or encourage any other Person to take any action of the type referred to in clause “(i)”, “(ii)”, “(iii)”, “(iv)”\nor “(v)” of this sentence; or\n(vii) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing.\n3\n(b) Notwithstanding anything herein to the contrary, nothing in this Section 7 shall restrict Insight from making any proposal\nregarding a transaction directly to the board of directors of E2open on a confidential basis if such proposal would not reasonably be expected to\nrequire E2open to make a public announcement regarding this Agreement, a transaction or any of the matters described in this Section 7.\n(c) In the event that E2open enters into a definitive agreement with any other person involving an acquisition of a majority of the\noutstanding securities (by way of merger, or otherwise) or all or substantially all of the assets of E2open to a third party or such transaction has\nbeen publicly announced, Insight shall be released from any and all of the restrictions and obligations contained in this Section 7.\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter\ninto any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it\ndeems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such\nprocess without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s\nRepresentatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any\ntime. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after\nthe date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or\ntransaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other\nParty’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or\nfuture exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived\nor amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the\nparticular provision or provisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach.\nAccordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or\nthreatened breach of this Agreement by the other Party or any of the other Party’s Representatives. Each Party further agrees not to raise, as a\ndefense or objection to the request or granting of such equitable relief, that any breach of this Agreement is or would be compensable by an\naward of money damages, and each Party agrees to waive any requirements for the securing or posting of any bond in connection with such\nremedy. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will\nbe in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, if a court of\ncompetent jurisdiction determines in a final, non-appealable judgment, that either Party or any of its Representatives has breached this\nAgreement, such Party will pay to the other Party, the reasonable legal fees incurred by the other Party in connection with such litigation\n(including any appeal relating thereto).\n4\n11. Trading in Securities. The Recipient acknowledges and agrees that it is aware (and that the Recipient’s Representatives are aware or\nwill be advised by the Recipient) that Confidential Information being furnished by the Provider may contain material, non-public information\nregarding the Provider and that the United States securities laws prohibit any Person who has such material, non-public information from\npurchasing or selling securities of the Provider on the basis of such information or from communicating such information to any Person under\ncircumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.\n12. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of\neach Party and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of\nthe State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and\nsubmits to the jurisdiction of the state and federal courts located in the State of Delaware purposes of any action, suit or proceeding arising out of\nor relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth\nopposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought\nagainst such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out\nof or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the\nright to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or\nrelating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient\nforum.\n13. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget,\nforecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other\naffiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has at\nany time been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative\nof the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or\nhas been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and\nthe proposed terms of any such transaction.\nHowever, the Provider ’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure\nof any of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such\n5\ninformation was not and is not known to the Recipient (after reasonable inquiry) to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient from a source other than the Provider or any of the Provider’s\nRepresentatives, provided that such source is not known to the Recipient (after reasonable inquiry) to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential\nInformation and without reference to or use of Confidential Information.\n14. Co-Bidders and Financing Sources\nWithout limiting anything in this Agreement, Insight agrees that it will not directly or indirectly (i) approach or team, co-venture, club or\notherwise partner with any person or firm that may be interested in participating in a transaction with E2open as a principal, co-investor, co-\nbidder or financing source, (ii) engage in any discussions which might lead to, or enter into, any agreement, arrangement or understanding with\nany such person or firm; provided, however, that subject to the written pre-approval of the Company and subject to Section 15(a) below, Insight\nmay contact and/or utilize pre-approved debt financing sources in connection with the potential negotiated transaction between the Parties,\n(iii) enter into any agreement, arrangement or understanding with any such person or firm to provide Insight or one or more of its affiliates with\ndebt financing (or other potential sources of debt capital) on an exclusive basis, or that would have the effect of preventing, impairing or\notherwise limiting the ability of any such person or firm to provide debt financing (or other potential sources of debt capital) to any other person\nin connection with a transaction involving the Company, (iv) have any discussions or other communications, or enter into any agreements or\nother arrangements or understandings, with any third party (other than its Representatives) with respect to (A) whether or not Insight will make\nan offer or proposal to acquire the Company or enter into any other transaction with the Company, or (B) the price that Insight may offer for the\nCompany or any valuation that Insight may ascribe to the Company (either on a stand-alone basis or as a result of any such transaction) or\n(v) have any formal or informal discussions, or enter into any agreement, arrangement or understanding (whether or not binding), with any\nstockholder, director, officer or other employee of the Company relating to a transaction with the Company or to the Company (including any\ndirect or indirect parent company or other affiliate thereof) or any of its businesses or operations from and after the consummation of such a\ntransaction, including, without limitation, as to continued equity or other investment interests in the Company (or any direct or indirect parent\ncompany or other affiliate thereof), whether by way of a “rollover” of existing investment interests or the making of new investments, or as to\nemployment with or consulting services to the Company (or an direct or indirect parent company or other affiliate thereof).\n15. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a\nsubsidiary of such Party, (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any\nof such Party’s subsidiaries or affiliates (excluding any affiliated portfolio companies) or (iii) only upon prior written approval of E2open, a\npotential debt financing source to be used by Insight in connection with a potential negotiated transaction between the Parties, provided that any\ndebt financing source enters into a confidentiality agreement with Insight that includes obligations relating to E2open’s Confidential Information\nthat are at least as restrictive as the obligations in this Agreement (and providing that E2open shall be a third party beneficiary thereof).\nRepresentatives shall not include any potential principal, co-investor, co-bidder, provider of equity capital that is not any equity fund affiliated\nwith Insight, any proposed joint buyer in a possible negotiated transaction with E2open or a debt financing source that is not pre-approved in\nwriting by E2open.\n6\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation,\npartnership, entity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken\ninto account in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the\nProvider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any\npatent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s\nRepresentatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of the\nProvider.\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it\nis the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not,\naffect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or\nother information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all\nConfidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or\ndoctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to\ntake all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(g) It is acknowledged and agreed that Insight and its affiliates are involved in a variety of businesses and may have acquired (or\ninvested in), or may acquire (or invest in), directly or indirectly, other businesses which do, or may, compete with E2open. For the avoidance of\ndoubt, subject to compliance with the terms hereof, nothing in this Agreement is intended to limit Insight’s or its affiliates’ ability to acquire or\ninvest in such other businesses.\n(h) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof. The terms of this Agreement shall\ncontrol over any additional purported confidentiality requirements imposed by any offering memorandum, web-based database or similar\nrepository of Confidential Information to which the Recipient or any of its Representatives is granted access in connection with a transaction,\nnotwithstanding acceptance of such an offering memorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other\nindication of assent to such additional confidentiality conditions, it being understood and agreed that the Recipient’s and its Representatives’\nconfidentiality obligations with respect to Confidential Information are exclusively governed by this Agreement and may not be enlarged except\nby a written agreement that is hereafter executed by each of the parties hereto.\n7\n(i) This Agreement shall continue in full force and effect for a period of two years from the effective date of this Agreement. Nothing\nherein is intended to limit or abridge the protection of trade secrets under applicable trade secrets law, and the protection of trade secrets by the\nRecipient shall be maintained as such until they fall into the public domain.\n(j) The Recipient agrees not to export, directly or indirectly, any U.S . source technical data acquired from the Provider or any\nproducts utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or\nregulations.\n(k) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related\nhereto, including legal notices, shall be in the English language only.\n(k) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transaction or\nby facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\nThe parties have caused this Agreement to be executed as of November 26, 2014.\nE2OPEN, INC.\nINSIGHT VENTURE PARTNERS, LLC\nBy: /s/ Peter Maloney\nBy: /s/ Eric Goldstein\nTitle: CFO\nTitle: Deputy General Counsel / Chief Compliance Officer\nAddress: 4100 East Third Avenue, Suite 400\nFoster City, CA 94404\nAddress: 1114 Avenue of the Americas\nNew York, NY 10036\n8\nEXHIBIT A\nPROVIDER CONTACT PERSON\nE2OPEN:\nMARK WOODWARD (CEO)\nPETER MALONEY (CFO)\nSCOTT MILLER (GENERAL COUNSEL)\n9	EX-99.(D)(2) 8 d875156dex99d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of November 26, 2014 between E2open, Inc., a Delaware\ncorporation (“E2open”) and Insight Venture Partners, LLC (“Insight”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving E2open and Insight (or one or more of\nits affiliates) (E2open and Insight referred to collectively as the “Parties” and individually as a “Party”), each Party has either requested or may\nrequest access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is\nreferred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such\ninformation and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 4 below, neither the Recipient nor any of the\nRecipient’s Representatives (as defined in Section 15 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in Section 13 below), except for the specific purpose of\nconsidering, evaluating, negotiating and implementing a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 15 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or\nconduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own\nexpense) take actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s\nConfidential Information.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A or any investment banks or outside\nlegal counsel retained by the Provider in connection with the possible transaction (the “Provider Contact Person”). Neither the Recipient nor\nany of the Recipient’s Representatives will contact or otherwise communicate with any other Representative or employee of the Provider in\nconnection with a possible transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. The Provider Contact Person will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of the\nProvider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously\nfurnished. Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the\naccuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any\nliability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United\nStates federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. The Recipient and its Representatives are not\n1\nentitled to, and will not, rely on the accuracy or completeness of any of the Provider’s Confidential Information. Only those representations and\nwarranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction\nbetween the Parties (or one or more of their respective affiliates) and is validly executed on behalf of the Parties or such affiliates (a “Definitive\nAgreement”) will have legal effect. For purposes of this Agreement, the term “Definitive Agreement” does not include an executed letter of\nintent, term sheet or any other preliminary written agreement (whether or not binding in whole or in part). The Provider and its Representatives\nexpressly disclaim any duty (express or implied) to update, supplement or correct any of the Provider’s Confidential Information regardless of\nthe circumstances.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof, provided such consent is sought prior to any such disclosure;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of\nevaluating, negotiating or implementing a possible negotiated transaction between the Parties (or one or more of their affiliates), and\n(B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound\nby confidentiality obligations at least as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other\nvalid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will, to the extent not prohibited\nby law, promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective\norder or other appropriate remedy. The Recipient and its Representatives will reasonably cooperate with the Provider and the Provider’s\nRepresentatives in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is\nunsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential\nInformation of the Provider, then the Recipient may disclose such Confidential Information to the extent required; provided, however, that the\nRecipient and its Representatives will use their reasonable best efforts to ensure that such Confidential Information is treated confidentially by\neach Person to whom it is disclosed. Notwithstanding the foregoing, Recipient and its Representatives (a) may disclose Confidential Information\nin connection with routine supervisory audit or regulatory examinations (including, without limitation, by regulatory or self-regulatory bodies) to\nwhich they are subject in the course of their respective businesses without liability hereunder and (b) shall not be required to provide notice to\nany party in the course of any such routine supervisory audit or regulatory examination, provided that such routine audit or examination does not\nspecifically target the Provider or the Confidential Information.\n5. Return of Confidential Information. Upon the Provider’s written request, the Recipient and the Recipient’s Representatives will\npromptly deliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or\nany of the Recipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any written materials containing Confidential\nInformation of the Provider, the Recipient may destroy such written\nmaterials and deliver to the Provider written confirmation of their destruction. Notwithstanding the foregoing, Recipient and its Representatives\nshall (i) be permitted to retain copies of the Confidential Information in accordance with policies and procedures implemented by Recipient or\nsuch Representatives, as the case may be, in order to comply with applicable law, regulation or professional standards, or for actual or anticipated\nlitigation, and (ii) not be required to destroy any computer records or files containing Confidential Information that have been created pursuant to\narchiving and back-up procedures. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information\nof the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and\nother obligations under this Agreement.\n6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, Insight agrees that it will\nnot and will not permit any of its Representatives or any direct or indirect subsidiary of Insight to solicit for employment with Insight or with any\nof its direct or indirect subsidiaries any employee of the E2open or any subsidiary of E2open; provided, however, that this Section 6 will not\nprevent Insight or its direct or indirect subsidiaries from causing to be placed any general advertisement or similar notice that is not targeted\nspecifically at employees of the E2open or its subsidiaries.\n7. Standstill Provision for E2open.\n(a) During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Insight nor any of\nInsight’s Representatives on behalf of Insight will, in any manner, directly or indirectly:\n(i) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of E2open or any\nsecurities (including derivatives thereof) of any subsidiary or other affiliate of E2open, (ii) any acquisition of any assets of E2open or any assets\nof any subsidiary, division or other affiliate of E2open, (iii) any tender offer, exchange offer, merger, business combination, recapitalization,\nrestructuring, liquidation, dissolution or extraordinary transaction involving E2open or any subsidiary or other affiliate of E2open or involving\nany securities or assets of E2open or any securities or assets of any subsidiary, division or other affiliate of E2open, or (iv) any “solicitation” of\n“proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of\nE2open;\n(ii) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934, as amended, and the rules\npromulgated thereunder) with respect to the beneficial ownership of any securities of E2open or any subsidiary or division of E2open;\n(iii) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of\nE2open;\n(iv) take any action that might require E2open to make a public announcement regarding any of the types of matters set forth\nin clause “(a)” of this sentence;\n(v) agree or offer to take, or seek, encourage or propose (publicly or otherwise) the taking of, any action referred to in clause\n“(@)”, “(b)”, “(c)” or “(d)” of this sentence;\n(vi) assist, induce or encourage any other Person to take any action of the type referred to in clause “(i)”, “(ii)”, “(iii)”, “(iv)”\nor “(v)” of this sentence; or\n(vii) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing.\n3\n(b) Notwithstanding anything herein to the contrary, nothing in this Section 7 shall restrict Insight from making any proposal\nregarding a transaction directly to the board of directors of E2open on a confidential basis if such proposal would not reasonably be expected to\nrequire E2open to make a public announcement regarding this Agreement, a transaction or any of the matters described in this Section 7.\n() In the event that E2open enters into a definitive agreement with any other person involving an acquisition of a majority of the\noutstanding securities (by way of merger, or otherwise) or all or substantially all of the assets of E2open to a third party or such transaction has\nbeen publicly announced, Insight shall be released from any and all of the restrictions and obligations contained in this Section 7.\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter\ninto any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it\ndeems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such\nprocess without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s\nRepresentatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any\ntime. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after\nthe date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or\ntransaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other\nParty’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or\nfuture exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived\nor amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the\nparticular provision or provisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach.\nAccordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or\nthreatened breach of this Agreement by the other Party or any of the other Party’s Representatives. Each Party further agrees not to raise, as a\ndefense or objection to the request or granting of such equitable relief, that any breach of this Agreement is or would be compensable by an\naward of money damages, and each Party agrees to waive any requirements for the securing or posting of any bond in connection with such\nremedy. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will\nbe in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, if a court of\ncompetent jurisdiction determines in a final, non-appealable judgment, that either Party or any of its Representatives has breached this\nAgreement, such Party will pay to the other Party, the reasonable legal fees incurred by the other Party in connection with such litigation\n(including any appeal relating thereto).\n11. Trading in Securities. The Recipient acknowledges and agrees that it is aware (and that the Recipient’s Representatives are aware or\nwill be advised by the Recipient) that Confidential Information being furnished by the Provider may contain material, non-public information\nregarding the Provider and that the United States securities laws prohibit any Person who has such material, non-public information from\npurchasing or selling securities of the Provider on the basis of such information or from communicating such information to any Person under\ncircumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.\n12. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of\neach Party and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of\nthe State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and\nsubmits to the jurisdiction of the state and federal courts located in the State of Delaware purposes of any action, suit or proceeding arising out of\nor relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth\nopposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought\nagainst such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out\nof or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the\nright to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or\nrelating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient\nforum.\n13. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget,\nforecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other\naffiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has at\nany time been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative\nof the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or\nhas been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and\nthe proposed terms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure\nof any of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such\n5\ninformation was not and is not known to the Recipient (after reasonable inquiry) to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient from a source other than the Provider or any of the Provider’s\nRepresentatives, provided that such source is not known to the Recipient (after reasonable inquiry) to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential\nInformation and without reference to or use of Confidential Information.\n14. Co-Bidders and Financing Sources\nWithout limiting anything in this Agreement, Insight agrees that it will not directly or indirectly (i) approach or team, co-venture, club or\notherwise partner with any person or firm that may be interested in participating in a transaction with E2open as a principal, co-investor, co-\nbidder or financing source, (ii) engage in any discussions which might lead to, or enter into, any agreement, arrangement or understanding with\nany such person or firm; provided, however, that subject to the written pre-approval of the Company and subject to Section 15(a) below, Insight\nmay contact and/or utilize pre-approved debt financing sources in connection with the potential negotiated transaction between the Parties,\n(iii) enter into any agreement, arrangement or understanding with any such person or firm to provide Insight or one or more of its affiliates with\ndebt financing (or other potential sources of debt capital) on an exclusive basis, or that would have the effect of preventing, impairing or\notherwise limiting the ability of any such person or firm to provide debt financing (or other potential sources of debt capital) to any other person\nin connection with a transaction involving the Company, (iv) have any discussions or other communications, or enter into any agreements or\nother arrangements or understandings, with any third party (other than its Representatives) with respect to (A) whether or not Insight will make\nan offer or proposal to acquire the Company or enter into any other transaction with the Company, or (B) the price that Insight may offer for the\nCompany or any valuation that Insight may ascribe to the Company (either on a stand-alone basis or as a result of any such transaction) or\n(v) have any formal or informal discussions, or enter into any agreement, arrangement or understanding (whether or not binding), with any\nstockholder, director, officer or other employee of the Company relating to a transaction with the Company or to the Company (including any\ndirect or indirect parent company or other affiliate thereof) or any of its businesses or operations from and after the consummation of such a\ntransaction, including, without limitation, as to continued equity or other investment interests in the Company (or any direct or indirect parent\ncompany or other affiliate thereof), whether by way of a “rollover” of existing investment interests or the making of new investments, or as to\nemployment with or consulting services to the Company (or an direct or indirect parent company or other affiliate thereof).\n15. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a\nsubsidiary of such Party, (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any\nof such Party’s subsidiaries or affiliates (excluding any affiliated portfolio companies) or (iii) only upon prior written approval of E2open, a\npotential debt financing source to be used by Insight in connection with a potential negotiated transaction between the Parties, provided that any\ndebt financing source enters into a confidentiality agreement with Insight that includes obligations relating to E2open’s Confidential Information\nthat are at least as restrictive as the obligations in this Agreement (and providing that E2open shall be a third party beneficiary thereof).\nRepresentatives shall not include any potential principal, co-investor, co-bidder, provider of equity capital that is not any equity fund affiliated\nwith Insight, any proposed joint buyer in a possible negotiated transaction with E2open or a debt financing source that is not pre-approved in\nwriting by E2open.\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation,\npartnership, entity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken\ninto account in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the\nProvider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any\npatent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s\nRepresentatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of the\nProvider.\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it\nis the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not,\naffect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or\nother information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all\nConfidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or\ndoctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to\ntake all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(g) It is acknowledged and agreed that Insight and its affiliates are involved in a variety of businesses and may have acquired (or\ninvested in), or may acquire (or invest in), directly or indirectly, other businesses which do, or may, compete with E2open. For the avoidance of\ndoubt, subject to compliance with the terms hereof, nothing in this Agreement is intended to limit Insight’s or its affiliates’ ability to acquire or\ninvest in such other businesses.\n(h) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof. The terms of this Agreement shall\ncontrol over any additional purported confidentiality requirements imposed by any offering memorandum, web-based database or similar\nrepository of Confidential Information to which the Recipient or any of its Representatives is granted access in connection with a transaction,\nnotwithstanding acceptance of such an offering memorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other\nindication of assent to such additional confidentiality conditions, it being understood and agreed that the Recipient’s and its Representatives’\nconfidentiality obligations with respect to Confidential Information are exclusively governed by this Agreement and may not be enlarged except\nby a written agreement that is hereafter executed by each of the parties hereto.\n7\n(i) This Agreement shall continue in full force and effect for a period of two years from the effective date of this Agreement. Nothing\nherein is intended to limit or abridge the protection of trade secrets under applicable trade secrets law, and the protection of trade secrets by the\nRecipient shall be maintained as such until they fall into the public domain.\n(j) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any\nproducts utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or\nregulations.\n(k) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related\nhereto, including legal notices, shall be in the English language only.\n(k) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transaction or\nby facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\nThe parties have caused this Agreement to be executed as of November 26, 2014.\nE20PEN, INC. INSIGHT VENTURE PARTNERS, LL.C\nBy:  /s/ Peter Maloney By:  /s/ Eric Goldstein\nTitle: CFO Title: Deputy General Counsel / Chief Compliance Officer\nAddress: 4100 East Third Avenue, Suite 400 Address: 1114 Avenue of the Americas\nFoster City, CA 94404 New York, NY 10036\nEXHIBIT A\nPROVIDER CONTACT PERSON\nE20PEN:\nMARK WOODWARD (CEO)\nPETER MALONEY (CFO)\nSCOTT MILLER (GENERAL COUNSEL)	EX-99.(D)(2) 8 d875156dex99d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT ("Agreement") is being entered into as of November 26, 2014 between E2open, Inc., a Delaware\ncorporation ("E2open") and Insight Venture Partners, LLC ("Insight").\nIn\norder to facilitate the consideration and negotiation of a possible negotiated transaction involving E2open and Insight (or one or more of\nits affiliates) (E2open and Insight referred to collectively as the "Parties" and individually as a "Party"), each Party has either requested or may\nrequest access to certain non-public information regarding the other Party and the other Party's subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the "Provider"; and each Party, in its capacity as a recipient of information, is\nreferred to in this Agreement as the "Recipient".) This Agreement sets forth the Parties' obligations regarding the use and disclosure of such\ninformation and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 4 below, neither the Recipient nor any of the\nRecipient's Representatives (as defined in Section 15 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider's Confidential Information (as defined in Section 13 below), except for the specific purpose of\nconsidering, evaluating, negotiating and implementing a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider's Confidential Information to any other Person (as defined in Section 15 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or\nconduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own\nexpense) take actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider's\nConfidential Information.\n2.\nProvider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider's Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A or any investment banks or outside\nlegal counsel retained by the Provider in connection with the possible transaction (the "Provider Contact Person"). Neither the Recipient nor\nany of the Recipient's Representatives will contact or otherwise communicate with any other Representative or employee of the Provider in\nconnection with a possible transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. The Provider Contact Person will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of the\nProvider's Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient's Representatives or to supplement or update any Confidential Information of the Provider previously\nfurnished. Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the\naccuracy or completeness of any of the Provider's Confidentia Information, and neither the Provider nor any of its Representatives will have any\nliability to the Recipient or to any of the Recipient's Representatives on any basis (including, without limitation, in contract, tort or under United\nStates federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider's Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. The Recipient and its Representatives are not\n1\nentitled to, and will not, rely on the accuracy or completeness of any of the Provider's Confidential Information. Only those representations and\nwarranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction\nbetween the Parties (or one or more of their respective affiliates) and is validly executed on behalf of the Parties or such affiliates (a "Definitive\nAgreement") will have legal effect. For purposes of this Agreement, the term "Definitive Agreement" does not include an executed letter of\nintent, term sheet or any other preliminary written agreement (whether or not binding in whole or in part). The Provider and its Representatives\nexpressly disclaim any duty (express or implied) to update, supplement or correct any of the Provider's Confidential Information regardless of\nthe circumstances.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient's disclosure thereof, provided such consent is sought prior to any such disclosure;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative\nof\nthe Recipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of\nevaluating, negotiating or implementing a possible negotiated transaction between the Parties (or one or more of their affiliates), and\n(B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound\nby confidentiality obligations at least as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If the Recipient or any of the Recipient's Representatives is required by law or governmenta regulation or by subpoena or other\nvalid legal process to disclose any of the Provider's Confidential Information to any Person, then the Recipient will, to the extent not prohibited\nby law, promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective\norder or other appropriate remedy. The Recipient and its Representatives will reasonably cooperate with the Provider and the Provider's\nRepresentatives in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is\nunsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential\nInformation of the Provider, then the Recipient may disclose such Confidential Information to the extent required; provided, however, that the\nRecipient and its Representatives will use their reasonable best efforts to ensure that such Confidential Information is treated confidentially by\neach\nPerson to whom it is disclosed. Notwithstanding the foregoing, Recipient and its Representatives (a) may disclose Confidential Information\nin connection with routine supervisory audit or regulatory examinations (including, without limitation, by regulatory or self-regulatory bodies) to\nwhich they are subject in the course of their respective businesses without liability hereunder and (b) shall not be required to provide notice\nto\nany party in the course of any such routine supervisory audit or regulatory examination, provided that such routine audit or examination does not\nspecifically target the Provider or the Confidential Information.\n5. Return of Confidential Information. Upon the Provider's written request, the Recipient and the Recipient's Representatives will\npromptly deliver to the Provider any of the Provider's Confidential Information (and all copies thereof) obtained or possessed by the Recipient or\nany of the Recipient's Representatives; provided, however, that, in lieu of delivering to the Provider any written materials containing Confidential\nInformation of the Provider, the Recipient may destroy such written\n2\nmaterials and deliver to the Provider written confirmation of their destruction. Notwithstanding the foregoing, Recipient and its Representatives\nshall (i) be permitted to retain copies of the Confidential Information in accordance with policies and procedures implemented by Recipient or\nsuch Representatives, as the case may be, in order to comply with applicable law, regulation or professional standards, or for actual or anticipated\nlitigation, and (ii) not be required to destroy any computer records or files containing Confidential Information that have been created pursuant to\narchiving and back-up procedures. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information\nof the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and\nother obligations under this Agreement.\n6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, Insight agrees that it will\nnot and will not permit any of its Representatives or any direct or indirect subsidiary of Insight to solicit for employment with Insight or with any\nof its direct or indirect subsidiaries any employee of the E2open or any subsidiary of E2open; provided, however, that this Section 6 will not\nprevent Insight or its direct or indirect subsidiaries from causing to be placed any general advertisement or similar notice that is not targeted\nspecifically at employees of the E2open or its subsidiaries.\n7. Standstill Provision for E2open.\n(a) During the 12 month period commencing on the date of this Agreement (the "Standstill Period"), neither Insight nor any of\nInsight's Representatives on behalf of Insight will, in any manner, directly or indirectly:\n(i) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of E2open or any\nsecurities (including derivatives thereof) of any subsidiary or other affiliate of E2open, (ii) any acquisition of any assets of E2open or any assets\nof any subsidiary, division or other affiliate of E2open, (iii) any tender offer, exchange offer, merger, business combination, recapitalization,\nrestructuring, liquidation, dissolution or extraordinary transaction involving E2open or any subsidiary or other affiliate of E2open or involving\nany securities or assets of E2open or any securities or assets of any subsidiary, division or other affiliate of E2open, or (iv) any "solicitation"\nof\n"proxies" (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of\nE2open;\n(ii) form, join or participate in a "group" (as defined in the Securities Exchange Act of 1934, as amended, and the rules\npromulgated thereunder) with respect to the beneficial ownership of any securities of E2open or any subsidiary or division of E2open;\n(iii) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies\nof\nE2open;\n(iv) take any action that might require E2open to make a public announcement regarding any of the types of matters set forth\nin clause "(a)" of this sentence;\n(v) agree or offer to take, or seek, encourage or propose (publicly or otherwise) the taking of, any action referred to in clause\n"(a)", "(b)", "(c)" or "(d)" of this sentence;\n(vi) assist, induce or encourage any other Person to take any action of the type referred to in clause "(i)", "(ii)", "(iii)", "(iv)"\nor "(v)" of this sentence; or\n(vii) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the\nforegoing.\n3\n(b)\nNotwithstanding anything herein to the contrary, nothing in this Section 7 shall restrict Insight from making any proposal\nregarding a transaction directly to the board of directors of E2open on a confidential basis if such proposal would not reasonably be expected to\nrequire E2open to make a public announcement regarding this Agreement, a transaction or any of the matters described in this Section 7.\n(c) In the event that E2open enters into a definitive agreement with any other person involving an acquisition of a majority of the\noutstanding securities (by way of merger, or otherwise) or all or substantially all of the assets of E2open to a third party or such transaction has\nbeen publicly announced, Insight shall be released from any and all of the restrictions and obligations contained in this Section 7.\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter\ninto any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it\ndeems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such\nprocess without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party's\nRepresentatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any\ntime. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after\nthe date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or\ntransaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other\nParty's Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or\nfuture exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived\nor amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the\nparticular provision or provisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party's Representatives and that the other Party would suffer irreparable harm as a result of any such breach.\nAccordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach\nor\nthreatened breach of this Agreement by the other Party or any of the other Party's Representatives. Each Party further agrees not to raise, as a\ndefense or objection to the request or granting of such equitable relief, that any breach of this Agreement is or would be compensable by an\naward of money damages, and each Party agrees to waive any requirements for the securing or posting of any bond in connection with such\nremedy. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will\nbe in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, if a court\nof\ncompetent jurisdiction determines in a final, non-appealable judgment, that either Party or any of its Representatives has breached this\nAgreement, such Party will pay to the other Party, the reasonable legal fees incurred by the other Party in connection with such litigation\n(including any appeal relating thereto).\n4\n11. Trading in Securities. The Recipient acknowledges and agrees that it is aware (and that the Recipient's Representatives are aware or\nwill be advised by the Recipient) that Confidential Information being furnished by the Provider may contain material, non-public information\nregarding the Provider and that the United States securities laws prohibit any Person who has such material, non-public information from\npurchasing\nor selling securities of the Provider on the basis of such information or from communicating such information to any Person under\ncircumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.\n12. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of\neach Party and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of\nthe State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and\nsubmits to the jurisdiction of the state and federal courts located in the State of Delaware purposes of any action, suit or proceeding arising out of\nor relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth\nopposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought\nagainst such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out\nof or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the\nright to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or\nrelating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient\nforum.\n13. Confidential Information. For purposes of this Agreement, the Provider's "Confidential Information" will be deemed to include the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget,\nforecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other\naffiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has at\nany time been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative\nof the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or\nhas been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause "(a)" of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause "(a)" of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and\nthe proposed terms of any such transaction.\nHowever, the Provider's "Confidential Information" will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure\nof any of such information by the Recipient or by any of the Recipient's Representatives;\n(ii) any information that was in the Recipient's possession prior to the time it was first made available to the Recipient or any of\nthe Recipient's Representatives by or on behalf of the Provider or any of the Provider's Representatives, provided that the source of such\n5\ninformation was not and is not known to the Recipient (after reasonable inquiry) to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient from a source other than the Provider or any of the Provider's\nRepresentatives, provided that such source is not known to the Recipient (after reasonable inquiry) to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential\nInformation and without reference to or use of Confidential Information.\n14. Co-Bidders and Financing Sources\nWithout limiting anything in this Agreement, Insight agrees that it will not directly or indirectly (i) approach or team, co-venture, club or\notherwise partner with any person or firm that may be interested in participating in a transaction with E2open as a principal, co-investor, CO-\nbidder or financing source, (ii) engage in any discussions which might lead to, or enter into, any agreement, arrangement or understanding with\nany such person or firm; provided, however, that subject to the written pre-approval of the Company and subject to Section 15(a) below, Insight\nmay contact and/or utilize pre-approved debt financing sources in connection with the potential negotiated transaction between the Parties,\n(iii) enter into any agreement, arrangement or understanding with any such person or firm to provide Insight or one or more of its affiliates with\ndebt financing (or other potential sources of debt capital) on an exclusive basis, or that would have the effect of preventing, impairing or\notherwise limiting the ability of any such person or firm to provide debt financing (or other potential sources of debt capital) to any other person\nin connection with a transaction involving the Company, (iv) have any discussions or other communications, or enter into any agreements\nor\nother arrangements or understandings, with any third party (other than its Representatives) with respect to (A) whether or not Insight will make\nan offer or proposal to acquire the Company or enter into any other transaction with the Company, or (B) the price that Insight may offer for the\nCompany or any valuation that Insight may ascribe to the Company (either on a stand-alone basis or as a result of any such transaction)\nor\n(v) have any formal or informal discussions, or enter into any agreement, arrangement or understanding (whether or not binding), with any\nstockholder, director, officer or other employee of the Company relating to a transaction with the Company or to the Company (including any\ndirect or indirect parent company or other affiliate thereof) or any of its businesses or operations from and after the consummation of such a\ntransaction, including, without limitation, as to continued equity or other investment interests in the Company (or any direct or indirect parent\ncompany or other affiliate thereof), whether by way of a "rollover" of existing investment interests or the making of new investments, or as\nto\nemployment with or consulting services to the Company (or an direct or indirect parent company or other affiliate thereof).\n15. Miscellaneous.\n(a) For purposes of this Agreement, a Party's "Representatives" will be deemed to include each Person that is or becomes (i) a\nsubsidiary of such Party, (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any\nof such Party's subsidiaries or affiliates (excluding any affiliated portfolio companies) or (iii) only upon prior written approval of E2open,\na\npotential debt financing source to be used by Insight in connection with a potential negotiated transaction between the Parties, provided that any\ndebt financing source enters into a confidentiality agreement with Insight that includes obligations relating to E2open's Confidential Information\nthat are at least as restrictive as the obligations in this Agreement (and providing that E2open shall be a third party beneficiary thereof).\nRepresentatives shall not include any potential principal, co-investor, co-bidder, provider of equity capital that is not any equity fund affiliated\nwith Insight, any proposed joint buyer in a possible negotiated transaction with E2open or a debt financing source that is not pre-approved in\nwriting by E2open.\n6\n(b) The term "Person," as used in this Agreement, will be broadly interpreted to include any individual and any corporation,\npartnership, entity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken\ninto account in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient's Representatives, the\nProvider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any\npatent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient's\nRepresentatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of the\nProvider.\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it\nis the Parties' mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not,\naffect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or\nother information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all\nConfidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or\ndoctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree\nto\ntake all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(g) It is acknowledged and agreed that Insight and its affiliates are involved in a variety of businesses and may have acquired (or\ninvested in), or may acquire (or invest in), directly or indirectly, other businesses which do, or may, compete with E2open. For the avoidance of\ndoubt, subject to compliance with the terms hereof, nothing in this Agreement is intended to limit Insight's or its affiliates' ability to acquire\nor\ninvest in such other businesses.\n(h) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof. The terms of this Agreement shall\ncontrol over any additional purported confidentiality requirements imposed by any offering memorandum, web-based database or similar\nrepository of Confidential Information to which the Recipient or any of its Representatives is granted access in connection with a transaction,\nnotwithstanding acceptance of such an offering memorandum or submission of an electronic signature, "clicking" on an "I Agree" icon or other\nindication of assent to such additional confidentiality conditions, it being understood and agreed that the Recipient's and its Representatives'\nconfidentiality obligations with respect to Confidential Information are exclusively governed by this Agreement and may not be enlarged except\nby a written agreement that is hereafter executed by each of the parties hereto.\n7\n(i) This Agreement shall continue in full force and effect for a period of two years from the effective date of this Agreement. Nothing\nherein is intended to limit or abridge the protection of trade secrets under applicable trade secrets law, and the protection of trade secrets by the\nRecipient shall be maintained as such until they fall into the public domain.\n(j) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any\nproducts utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or\nregulations.\n(k) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related\nhereto, including legal notices, shall be in the English language only.\n(k) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transaction or\nby facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\nThe parties have caused this Agreement to be executed as of November 26, 2014.\nE2OPEN, INC.\nINSIGHT VENTURE PARTNERS, LLC\nBy:\n/s/ Peter Maloney\nBy:\n/s/ Eric Goldstein\nTitle: CFO\nTitle: Deputy General Counsel / Chief Compliance Officer\nAddress: 4100 East Third Avenue, Suite 400\nAddress: 1114 Avenue of the Americas\nFoster City, CA 94404\nNew York, NY 10036\n8\nEXHIBIT A\nPROVIDER CONTACT PERSON\nE2OPEN:\nMARK WOODWARD (CEO)\nPETER MALONEY (CFO)\nSCoTT MILLER (GENERAL COUNSEL)\n9	EX-99.(D)(2) 8 d875156dex99d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of November 26, 2014 between E2open, Inc., a Delaware\ncorporation (“E2open”) and Insight Venture Partners, LLC (“Insight”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving E2open and Insight (or one or more of\nits affiliates) (E2open and Insight referred to collectively as the “Parties” and individually as a “Party”), each Party has either requested or may\nrequest access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is\nreferred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such\ninformation and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 4 below, neither the Recipient nor any of the\nRecipient’s Representatives (as defined in Section 15 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider ’s Confidential Information (as defined in Section 13 below), except for the specific purpose of\nconsidering, evaluating, negotiating and implementing a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 15 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or\nconduct on the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own\nexpense) take actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider ’s\nConfidential Information.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A or any investment banks or outside\nlegal counsel retained by the Provider in connection with the possible transaction (the “Provider Contact Person”). Neither the Recipient nor\nany of the Recipient’s Representatives will contact or otherwise communicate with any other Representative or employee of the Provider in\nconnection with a possible transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. The Provider Contact Person will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of the\nProvider ’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously\nfurnished. Neither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the\naccuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any\nliability to the Recipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United\nStates federal or state securities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. The Recipient and its Representatives are not\n1\nentitled to, and will not, rely on the accuracy or completeness of any of the Provider’s Confidential Information. Only those representations and\nwarranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated transaction\nbetween the Parties (or one or more of their respective affiliates) and is validly executed on behalf of the Parties or such affiliates (a “Definitive\nAgreement”) will have legal effect. For purposes of this Agreement, the term “Definitive Agreement” does not include an executed letter of\nintent, term sheet or any other preliminary written agreement (whether or not binding in whole or in part). The Provider and its Representatives\nexpressly disclaim any duty (express or implied) to update, supplement or correct any of the Provider’s Confidential Information regardless of\nthe circumstances.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof, provided such consent is sought prior to any such disclosure;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of\nevaluating, negotiating or implementing a possible negotiated transaction between the Parties (or one or more of their affiliates), and\n(B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the provisions hereof or is otherwise bound\nby confidentiality obligations at least as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other\nvalid legal process to disclose any of the Provider ’s Confidential Information to any Person, then the Recipient will, to the extent not prohibited\nby law, promptly provide the Provider with written notice of the applicable law, regulation or process so that the Provider may seek a protective\norder or other appropriate remedy. The Recipient and its Representatives will reasonably cooperate with the Provider and the Provider’s\nRepresentatives in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is\nunsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Recipient disclose Confidential\nInformation of the Provider, then the Recipient may disclose such Confidential Information to the extent required; provided, however, that the\nRecipient and its Representatives will use their reasonable best efforts to ensure that such Confidential Information is treated confidentially by\neach Person to whom it is disclosed. Notwithstanding the foregoing, Recipient and its Representatives (a) may disclose Confidential Information\nin connection with routine supervisory audit or regulatory examinations (including, without limitation, by regulatory or self-regulatory bodies) to\nwhich they are subject in the course of their respective businesses without liability hereunder and (b) shall not be required to provide notice to\nany party in the course of any such routine supervisory audit or regulatory examination, provided that such routine audit or examination does not\nspecifically target the Provider or the Confidential Information.\n5. Return of Confidential Information. Upon the Provider ’s written request, the Recipient and the Recipient’s Representatives will\npromptly deliver to the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or\nany of the Recipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any written materials containing Confidential\nInformation of the Provider, the Recipient may destroy such written\n2\nmaterials and deliver to the Provider written confirmation of their destruction. Notwithstanding the foregoing, Recipient and its Representatives\nshall (i) be permitted to retain copies of the Confidential Information in accordance with policies and procedures implemented by Recipient or\nsuch Representatives, as the case may be, in order to comply with applicable law, regulation or professional standards, or for actual or anticipated\nlitigation, and (ii) not be required to destroy any computer records or files containing Confidential Information that have been created pursuant to\narchiving and back-up procedures. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information\nof the Provider pursuant to this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and\nother obligations under this Agreement.\n6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, Insight agrees that it will\nnot and will not permit any of its Representatives or any direct or indirect subsidiary of Insight to solicit for employment with Insight or with any\nof its direct or indirect subsidiaries any employee of the E2open or any subsidiary of E2open; provided, however, that this Section 6 will not\nprevent Insight or its direct or indirect subsidiaries from causing to be placed any general advertisement or similar notice that is not targeted\nspecifically at employees of the E2open or its subsidiaries.\n7. Standstill Provision for E2open.\n(a) During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Insight nor any of\nInsight’s Representatives on behalf of Insight will, in any manner, directly or indirectly:\n(i) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of E2open or any\nsecurities (including derivatives thereof) of any subsidiary or other affiliate of E2open, (ii) any acquisition of any assets of E2open or any assets\nof any subsidiary, division or other affiliate of E2open, (iii) any tender offer, exchange offer, merger, business combination, recapitalization,\nrestructuring, liquidation, dissolution or extraordinary transaction involving E2open or any subsidiary or other affiliate of E2open or involving\nany securities or assets of E2open or any securities or assets of any subsidiary, division or other affiliate of E2open, or (iv) any “solicitation” of\n“proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of\nE2open;\n(ii) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934, as amended, and the rules\npromulgated thereunder) with respect to the beneficial ownership of any securities of E2open or any subsidiary or division of E2open;\n(iii) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of\nE2open;\n(iv) take any action that might require E2open to make a public announcement regarding any of the types of matters set forth\nin clause “(a)” of this sentence;\n(v) agree or offer to take, or seek, encourage or propose (publicly or otherwise) the taking of, any action referred to in clause\n“(a)”, “(b)”, “(c)” or “(d)” of this sentence;\n(vi) assist, induce or encourage any other Person to take any action of the type referred to in clause “(i)”, “(ii)”, “(iii)”, “(iv)”\nor “(v)” of this sentence; or\n(vii) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing.\n3\n(b) Notwithstanding anything herein to the contrary, nothing in this Section 7 shall restrict Insight from making any proposal\nregarding a transaction directly to the board of directors of E2open on a confidential basis if such proposal would not reasonably be expected to\nrequire E2open to make a public announcement regarding this Agreement, a transaction or any of the matters described in this Section 7.\n(c) In the event that E2open enters into a definitive agreement with any other person involving an acquisition of a majority of the\noutstanding securities (by way of merger, or otherwise) or all or substantially all of the assets of E2open to a third party or such transaction has\nbeen publicly announced, Insight shall be released from any and all of the restrictions and obligations contained in this Section 7.\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter\ninto any such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it\ndeems appropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such\nprocess without giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s\nRepresentatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any\ntime. Each Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after\nthe date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or\ntransaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other\nParty’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or\nfuture exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived\nor amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the\nparticular provision or provisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach.\nAccordingly, each Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or\nthreatened breach of this Agreement by the other Party or any of the other Party’s Representatives. Each Party further agrees not to raise, as a\ndefense or objection to the request or granting of such equitable relief, that any breach of this Agreement is or would be compensable by an\naward of money damages, and each Party agrees to waive any requirements for the securing or posting of any bond in connection with such\nremedy. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will\nbe in addition to all other remedies available at law or in equity to the Parties. In the event of litigation relating to this Agreement, if a court of\ncompetent jurisdiction determines in a final, non-appealable judgment, that either Party or any of its Representatives has breached this\nAgreement, such Party will pay to the other Party, the reasonable legal fees incurred by the other Party in connection with such litigation\n(including any appeal relating thereto).\n4\n11. Trading in Securities. The Recipient acknowledges and agrees that it is aware (and that the Recipient’s Representatives are aware or\nwill be advised by the Recipient) that Confidential Information being furnished by the Provider may contain material, non-public information\nregarding the Provider and that the United States securities laws prohibit any Person who has such material, non-public information from\npurchasing or selling securities of the Provider on the basis of such information or from communicating such information to any Person under\ncircumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.\n12. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of\neach Party and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of\nthe State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and\nsubmits to the jurisdiction of the state and federal courts located in the State of Delaware purposes of any action, suit or proceeding arising out of\nor relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the address set forth\nopposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought\nagainst such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out\nof or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and unconditionally waives the\nright to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or\nrelating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient\nforum.\n13. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget,\nforecast or projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other\naffiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has at\nany time been made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative\nof the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or\nhas been prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and\nthe proposed terms of any such transaction.\nHowever, the Provider ’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure\nof any of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such\n5\ninformation was not and is not known to the Recipient (after reasonable inquiry) to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient from a source other than the Provider or any of the Provider’s\nRepresentatives, provided that such source is not known to the Recipient (after reasonable inquiry) to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential\nInformation and without reference to or use of Confidential Information.\n14. Co-Bidders and Financing Sources\nWithout limiting anything in this Agreement, Insight agrees that it will not directly or indirectly (i) approach or team, co-venture, club or\notherwise partner with any person or firm that may be interested in participating in a transaction with E2open as a principal, co-investor, co-\nbidder or financing source, (ii) engage in any discussions which might lead to, or enter into, any agreement, arrangement or understanding with\nany such person or firm; provided, however, that subject to the written pre-approval of the Company and subject to Section 15(a) below, Insight\nmay contact and/or utilize pre-approved debt financing sources in connection with the potential negotiated transaction between the Parties,\n(iii) enter into any agreement, arrangement or understanding with any such person or firm to provide Insight or one or more of its affiliates with\ndebt financing (or other potential sources of debt capital) on an exclusive basis, or that would have the effect of preventing, impairing or\notherwise limiting the ability of any such person or firm to provide debt financing (or other potential sources of debt capital) to any other person\nin connection with a transaction involving the Company, (iv) have any discussions or other communications, or enter into any agreements or\nother arrangements or understandings, with any third party (other than its Representatives) with respect to (A) whether or not Insight will make\nan offer or proposal to acquire the Company or enter into any other transaction with the Company, or (B) the price that Insight may offer for the\nCompany or any valuation that Insight may ascribe to the Company (either on a stand-alone basis or as a result of any such transaction) or\n(v) have any formal or informal discussions, or enter into any agreement, arrangement or understanding (whether or not binding), with any\nstockholder, director, officer or other employee of the Company relating to a transaction with the Company or to the Company (including any\ndirect or indirect parent company or other affiliate thereof) or any of its businesses or operations from and after the consummation of such a\ntransaction, including, without limitation, as to continued equity or other investment interests in the Company (or any direct or indirect parent\ncompany or other affiliate thereof), whether by way of a “rollover” of existing investment interests or the making of new investments, or as to\nemployment with or consulting services to the Company (or an direct or indirect parent company or other affiliate thereof).\n15. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a\nsubsidiary of such Party, (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any\nof such Party’s subsidiaries or affiliates (excluding any affiliated portfolio companies) or (iii) only upon prior written approval of E2open, a\npotential debt financing source to be used by Insight in connection with a potential negotiated transaction between the Parties, provided that any\ndebt financing source enters into a confidentiality agreement with Insight that includes obligations relating to E2open’s Confidential Information\nthat are at least as restrictive as the obligations in this Agreement (and providing that E2open shall be a third party beneficiary thereof).\nRepresentatives shall not include any potential principal, co-investor, co-bidder, provider of equity capital that is not any equity fund affiliated\nwith Insight, any proposed joint buyer in a possible negotiated transaction with E2open or a debt financing source that is not pre-approved in\nwriting by E2open.\n6\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation,\npartnership, entity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken\ninto account in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the\nProvider is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any\npatent, trade secret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s\nRepresentatives shall file any patent application containing any claim to any subject matter derived from the Confidential Information of the\nProvider.\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it\nis the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not,\naffect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such materials or\nother information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all\nConfidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or\ndoctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to\ntake all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(g) It is acknowledged and agreed that Insight and its affiliates are involved in a variety of businesses and may have acquired (or\ninvested in), or may acquire (or invest in), directly or indirectly, other businesses which do, or may, compete with E2open. For the avoidance of\ndoubt, subject to compliance with the terms hereof, nothing in this Agreement is intended to limit Insight’s or its affiliates’ ability to acquire or\ninvest in such other businesses.\n(h) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof. The terms of this Agreement shall\ncontrol over any additional purported confidentiality requirements imposed by any offering memorandum, web-based database or similar\nrepository of Confidential Information to which the Recipient or any of its Representatives is granted access in connection with a transaction,\nnotwithstanding acceptance of such an offering memorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other\nindication of assent to such additional confidentiality conditions, it being understood and agreed that the Recipient’s and its Representatives’\nconfidentiality obligations with respect to Confidential Information are exclusively governed by this Agreement and may not be enlarged except\nby a written agreement that is hereafter executed by each of the parties hereto.\n7\n(i) This Agreement shall continue in full force and effect for a period of two years from the effective date of this Agreement. Nothing\nherein is intended to limit or abridge the protection of trade secrets under applicable trade secrets law, and the protection of trade secrets by the\nRecipient shall be maintained as such until they fall into the public domain.\n(j) The Recipient agrees not to export, directly or indirectly, any U.S . source technical data acquired from the Provider or any\nproducts utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or\nregulations.\n(k) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related\nhereto, including legal notices, shall be in the English language only.\n(k) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transaction or\nby facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\nThe parties have caused this Agreement to be executed as of November 26, 2014.\nE2OPEN, INC.\nINSIGHT VENTURE PARTNERS, LLC\nBy: /s/ Peter Maloney\nBy: /s/ Eric Goldstein\nTitle: CFO\nTitle: Deputy General Counsel / Chief Compliance Officer\nAddress: 4100 East Third Avenue, Suite 400\nFoster City, CA 94404\nAddress: 1114 Avenue of the Americas\nNew York, NY 10036\n8\nEXHIBIT A\nPROVIDER CONTACT PERSON\nE2OPEN:\nMARK WOODWARD (CEO)\nPETER MALONEY (CFO)\nSCOTT MILLER (GENERAL COUNSEL)\n9
+98139c00032e1383c5576cf950f29bff.pdf	effective_date jurisdiction party term	13 ADDENDUM 7 NON-DISCLOSURE AGREEMENT This non-disclosure agreement (the "AGREEMENT") is\nentered into this 16TH DAY OF MARCH, 1999 by ACUMED, INC. (the "DISCLOSING PARTY") and MEDEX\nSURGICAL, its PRINCIPALS, MANAGEMENT and STAFF (the "RECEIVING PARTY") for the purpose of\npreventing the unauthorized disclosure of Confidential Information (as defined below) of the Disclosing Party which may\nbe disclosed to the Receiving Party for the purpose of pursuing the establishment of a business relationship or negotiating\nany contract or agreement between the Disclosing Party and the Receiving Party. For purposes of the agreement,\nConfidential Information shall mean any and all information relating to Acumed Products and Pricing. In consideration\nof the Disclosing Party's disclosure of Confidential Information to the Receiving Party, the Receiving Party hereby agrees\nas follows: 1. The Receiving Party shall hold and maintain the Confidential Information in strictest confidence and in\ntrust for the sole and exclusive benefit of the Disclosing party. 2. The Receiving Party shall not, without the prior written\napproval of the Disclosing Party, use for its own benefit, publish or otherwise disclose to others, or permit the use by\nothers for their benefit or to the detriment of the Disclosing party, any of the Confidential Information. 3. The Receiving\nParty shall carefully restrict access to the Confidential Information to those of its officers, directors and employees who\nclearly need such access in order to participate on the behalf of the Receiving Party in the analysis and negotiation of a\nbusiness relationship or any contract or agreement, or the advisability thereof, with the Disclosing Party. The Receiving\nParty further warrants and represents that it will advise each of the persons to whom it provides access to any of the\nConfidential Information pursuant to the foregoing sentence that such persons are strictly prohibited from making use,\npublishing or otherwise disclosing to others or permitting others to use for their benefit or to the detriment of the\nDisclosing Party, any of the Confidential Information. 4. The Receiving Party shall take actions necessary to protect the\nconfidentiality of the Confidental Information except for its disclosure pursuant to paragraph 3 above, and hereby\nindemnifies the Disclosing Party against any and all losses, damages, claims or expenses incurred or suffered by the\nDisclosing Party as a result of the Receiving Party's breach of this Agreement. 5. This agreement shall continue in full\nforce and effect indefinitely, except that the Receiving Party's obligations hereunder shall not extend to any of the\nConfidential Information which the Receiving Party can demonstrate was in the public domain on the date of this\nAgreement. 6. The Receiving Party understands and acknowledges that any disclosure or misappropriation of any of the\nConfidential Information in violation of this Agreement may cause the disclosing Party irreparable harm, the amount of\nwhich may be difficult to ascertain and, therefore, agrees that the Disclosing Party shall have the right to apply to a court\nof competent jurisdiction for an order restraining any such further disclosure or misappropriation and for such other relief\nas the Disclosing Party shall deem appropriate, such right of the Disclosing Party to be in addition to the remedies\notherwise available to the Disclosing Party at law or in equity. 7. The Receiving Party shall return to the Disclosing Party\nany and all records, notes and other written, printed or tangible materials pertaining to the Confidential Information\nimmediately upon written request of the Disclosing Party. 14 8. This Agreement and the Receiving Party's obligations\nhereunder shall be binding upon the representatives, assigns and successors of the Receiving Party and shall inure to the\nbenefit of the assigns and successors of the Disclosing Party. 9. The Agreement shall be governed by and construed in\naccordance with internal laws of the State of Oregon. 10. If any action at law or inequity is brought to enforce or interpret\nthe provisions of this Agreement, the prevailing party in such action shall be entitled to reasonable attorney's fees. 11.\nThe Agreement constitutes the sole understanding of the parties with respect to the subject matter hereof and may not be\namended or modified except in writing signed by each of the parties hereto. -------------------------- IN WITNESS\nWHEREOF, the parties hereto have entered into this Agreement on the date set forth above. Disclosing Party: Receiving\nParty: Acumed, Inc. Medex Surgical ---------------------------- ---------------------------- By: Randall Huebner By: Bob\nKraus Ed Kraus ------------------------- ------------------------- /s/ Randall Huebner /s/ Bob Kraus /s/ Ed Kraus\n---------------------------- ---------------------------- Signature Signature Its: President Its: Co-Presidents ------------------------\n-- -- - -- - -- - -- - -- - -- - -- - - Title Title Date: 3-17-99 Date: 3/15/99 ----------------------- -------------------------	13 ADDENDUM 7 NON-DISCLOSURE AGREEMENT This non-disclosure agreement (the "AGREEMENT") is\nentered into this 16TH DAY OF MARCH, 1999 by ACUMED, INC. (the "DISCLOSING PARTY") and MEDEX\nSURGICAL, its PRINCIPALS, MANAGEMENT and STAFF (the "RECEIVING PARTY") for the purpose of\npreventing the unauthorized disclosure of Confidential Information (as defined below) of the Disclosing Party which may\nbe disclosed to the Receiving Party for the purpose of pursuing the establishment of a business relationship or negotiating\nany contract or agreement between the Disclosing Party and the Receiving Party. For purposes of the agreement,\nConfidential Information shall mean any and all information relating to Acumed Products and Pricing. In consideration\nof the Disclosing Party's disclosure of Confidential Information to the Receiving Party, the Receiving Party hereby agrees\nas follows: 1. The Receiving Party shall hold and maintain the Confidential Information in strictest confidence and in\ntrust for the sole and exclusive benefit of the Disclosing party. 2. The Receiving Party shall not, without the prior written\napproval of the Disclosing Party, use for its own benefit, publish or otherwise disclose to others, or permit the use by\nothers for their benefit or to the detriment of the Disclosing party, any of the Confidential Information. 3. The Receiving\nParty shall carefully restrict access to the Confidential Information to those of its officers, directors and employees who\nclearly need such access in order to participate on the behalf of the Receiving Party in the analysis and negotiation of a\nbusiness relationship or any contract or agreement, or the advisability thereof, with the Disclosing Party. The Receiving\nParty further warrants and represents that it will advise each of the persons to whom it provides access to any of the\nConfidential Information pursuant to the foregoing sentence that such persons are strictly prohibited from making use,\npublishing or otherwise disclosing to others or permitting others to use for their benefit or to the detriment of the\nDisclosing Party, any of the Confidential Information. 4. The Receiving Party shall take actions necessary to protect the\nconfidentiality of the Confidental Information except for its disclosure pursuant to paragraph 3 above, and hereby\nindemnifies the Disclosing Party against any and all losses, damages, claims or expenses incurred or suffered by the\nDisclosing Party as a result of the Receiving Party's breach of this Agreement. 5. This agreement shall continue in full\nforce and effect indefinitely, except that the Receiving Party's obligations hereunder shall not extend to any of the\nConfidential Information which the Receiving Party can demonstrate was in the public domain on the date of this\nAgreement. 6. The Receiving Party understands and acknowledges that any disclosure or misappropriation of any of the\nConfidential Information in violation of this Agreement may cause the disclosing Party irreparable harm, the amount of\nwhich may be difficult to ascertain and, therefore, agrees that the Disclosing Party shall have the right to apply to a court\nof competent jurisdiction for an order restraining any such further disclosure or misappropriation and for such other relief\nas the Disclosing Party shall deem appropriate, such right of the Disclosing Party to be in addition to the remedies\notherwise available to the Disclosing Party at law or in equity. 7. The Receiving Party shall return to the Disclosing Party\nany and all records, notes and other written, printed or tangible materials pertaining to the Confidential Information\nimmediately upon written request of the Disclosing Party. 14 8. This Agreement and the Receiving Party's obligations\nhereunder shall be binding upon the representatives, assigns and successors of the Receiving Party and shall inure to the\nbenefit of the assigns and successors of the Disclosing Party. 9. The Agreement shall be governed by and construed in\naccordance with internal laws of the State of Oregon. 10. If any action at law or inequity is brought to enforce or interpret\nthe provisions of this Agreement, the prevailing party in such action shall be entitled to reasonable attorney's fees. 11.\nThe Agreement constitutes the sole understanding of the parties with respect to the subject matter hereof and may not be\namended or modified except in writing signed by each of the parties hereto. ----------=-===-==-eeeueeo IN WITNESS\nWHEREOF, the parties hereto have entered into this Agreement on the date set forth above. Disclosing Party: Receiving\nParty: Acumed, Inc. Medex Surgical --------=====mmmmmmmm e e By: Randall Huebner By: Bob\nKraus Ed Kraus -------=--=-=-=mmmm oo oo /s/ Randall Huebner /s/ Bob Kraus /s/ Ed Kraus\n-------------------------------------------------------- Signature Signature Its: President Its: Co-Presidents ------------------------\n------------------------ Title Title Date: 3-17-99 Date: 3/15/99 —-----mnmmmmmmm oo e	13 ADDENDUM 7 NON-DISCLOSURE AGREEMENT This non-disclosure agreement (the "AGREEMENT") is\nentered into this 16TH DAY OF MARCH, 1999 by ACUMED, INC. (the "DISCLOSING PARTY") and MEDEX\nSURGICAL, its PRINCIPALS, MANAGEMENT and STAFF (the "RECEIVING PARTY") for the purpose of\npreventing the unauthorized disclosure of Confidential Information (as defined below) of the Disclosing Party which may\nbe disclosed to the Receiving Party for the purpose of pursuing the establishment of a business relationship or negotiating\nany contract or agreement between the Disclosing Party and the Receiving Party. For purposes of the agreement,\nConfidential Information shall mean any and all information relating to Acumed Products and Pricing. In consideration\nof the Disclosing Party's disclosure of Confidential Information to the Receiving Party, the Receiving Party hereby agrees\nas follows: 1. The Receiving Party shall hold and maintain the Confidential Information in strictest confidence and in\ntrust for the sole and exclusive benefit of the Disclosing party. 2. The Receiving Party shall not, without the prior written\napproval of the Disclosing Party, use for its own benefit, publish or otherwise disclose to others, or permit the use by\nothers for their benefit or to the detriment of the Disclosing party, any of the Confidential Information. 3. The Receiving\nParty shall carefully restrict access to the Confidential Information to those of its officers, directors and employees who\nclearly need such access in order to participate on the behalf of the Receiving Party in the analysis and negotiation of\na\nbusiness relationship or any contract or agreement, or the advisability thereof, with the Disclosing Party. The Receiving\nParty\nfurther\nwarrants\nand\nrepresents\nthat\nit\nwill\nadvise\neach\nof\nthe\npersons\nto\nwhom\nit\nprovides\naccess\nto\nany\nof\nthe\nConfidential Information pursuant to the foregoing sentence that such persons are strictly prohibited from making use,\npublishing or otherwise disclosing to others or permitting others to use for their benefit or to the detriment of the\nDisclosing Party, any of the Confidential Information. 4. The Receiving Party shall take actions necessary to protect\nthe\nconfidentiality of the Confidental Information except for its disclosure pursuant to paragraph 3 above, and hereby\nindemnifies the Disclosing Party against any and all losses, damages, claims or expenses incurred or suffered by the\nDisclosing Party as a result of the Receiving Party's breach of this Agreement. 5. This agreement shall continue in full\nforce and effect indefinitely, except that the Receiving Party's obligations hereunder shall not extend to any of the\nConfidential Information which the Receiving Party can demonstrate was in the public domain on the date of this\nAgreement. 6. The Receiving Party understands and acknowledges that any disclosure or misappropriation of any of the\nConfidential Information in violation of this Agreement may cause the disclosing Party irreparable harm, the amount of\nwhich may be difficult to ascertain and, therefore, agrees that the Disclosing Party shall have the right to apply to a court\nof competent jurisdiction for an order restraining any such further disclosure or misappropriation and for such other relief\nas the Disclosing Party shall deem appropriate, such right of the Disclosing Party to be in addition to the remedies\notherwise available to the Disclosing Party at law or in equity. 7. The Receiving Party shall return to the Disclosing\nParty\nany and all records, notes and other written, printed or tangible materials pertaining to the Confidential Information\nimmediately upon written request of the Disclosing Party. 14 8. This Agreement and the Receiving Party's obligations\nhereunder shall be binding upon the representatives, assigns and successors of the Receiving Party and shall inure to the\nbenefit of the assigns and successors of the Disclosing Party. 9. The Agreement shall be governed by and construed in\naccordance with internal laws of the State of Oregon. 10. If any action at law or inequity is brought to enforce or interpret\nthe provisions of this Agreement, the prevailing party in such action shall be entitled to reasonable attorney's fees. 11.\nThe Agreement constitutes the sole understanding of the parties with respect to the subject matter hereof and may not be\namended or modified except in writing signed by each of the parties hereto.\nIN WITNESS\nWHEREOF, the parties hereto have entered into this Agreement on the date set forth above. Disclosing Party: Receiving\nParty: Acumed, Inc. Medex Surgical\nBy: Randall Huebner By: Bob\nKraus Ed Kraus\n/s/ Randall Huebner /s/ Bob Kraus /s/ Ed Kraus\nSignature Signature Its: President Its: Co-Presidents\nTitle Title Date: 3-17-99 Date: 3/15/99	13 ADDENDUM 7 NON-DISCLOSURE AGREEMENT This non-disclosure agreement (the "AGREEMENT") is\nentered into this 16TH DAY OF MARCH, 1999 by ACUMED, INC. (the "DISCLOSING PARTY") and MEDEX\nSURGICAL, its PRINCIPALS, MANAGEMENT and STAFF (the "RECEIVING PARTY") for the purpose of\npreventing the unauthorized disclosure of Confidential Information (as defined below) of the Disclosing Party which may\nbe disclosed to the Receiving Party for the purpose of pursuing the establishment of a business relationship or negotiating\nany contract or agreement between the Disclosing Party and the Receiving Party. For purposes of the agreement,\nConfidential Information shall mean any and all information relating to Acumed Products and Pricing. In consideration\nof the Disclosing Party's disclosure of Confidential Information to the Receiving Party, the Receiving Party hereby agrees\nas follows: 1. The Receiving Party shall hold and maintain the Confidential Information in strictest confidence and in\ntrust for the sole and exclusive benefit of the Disclosing party. 2. The Receiving Party shall not, without the prior written\napproval of the Disclosing Party, use for its own benefit, publish or otherwise disclose to others, or permit the use by\nothers for their benefit or to the detriment of the Disclosing party, any of the Confidential Information. 3. The Receiving\nParty shall carefully restrict access to the Confidential Information to those of its officers, directors and employees who\nclearly need such access in order to participate on the behalf of the Receiving Party in the analysis and negotiation of a\nbusiness relationship or any contract or agreement, or the advisability thereof, with the Disclosing Party. The Receiving\nParty further warrants and represents that it will advise each of the persons to whom it provides access to any of the\nConfidential Information pursuant to the foregoing sentence that such persons are strictly prohibited from making use,\npublishing or otherwise disclosing to others or permitting others to use for their benefit or to the detriment of the\nDisclosing Party, any of the Confidential Information. 4. The Receiving Party shall take actions necessary to protect the\nconfidentiality of the Confidental Information except for its disclosure pursuant to paragraph 3 above, and hereby\nindemnifies the Disclosing Party against any and all losses, damages, claims or expenses incurred or suffered by the\nDisclosing Party as a result of the Receiving Party's breach of this Agreement. 5. This agreement shall continue in full\nforce and effect indefinitely, except that the Receiving Party's obligations hereunder shall not extend to any of the\nConfidential Information which the Receiving Party can demonstrate was in the public domain on the date of this\nAgreement. 6. The Receiving Party understands and acknowledges that any disclosure or misappropriation of any of the\nConfidential Information in violation of this Agreement may cause the disclosing Party irreparable harm, the amount of\nwhich may be difficult to ascertain and, therefore, agrees that the Disclosing Party shall have the right to apply to a court\nof competent jurisdiction for an order restraining any such further disclosure or misappropriation and for such other relief\nas the Disclosing Party shall deem appropriate, such right of the Disclosing Party to be in addition to the remedies\notherwise available to the Disclosing Party at law or in equity. 7. The Receiving Party shall return to the Disclosing Party\nany and all records, notes and other written, printed or tangible materials pertaining to the Confidential Information\nimmediately upon written request of the Disclosing Party. 14 8. This Agreement and the Receiving Party's obligations\nhereunder shall be binding upon the representatives, assigns and successors of the Receiving Party and shall inure to the\nbenefit of the assigns and successors of the Disclosing Party. 9. The Agreement shall be governed by and construed in\naccordance with internal laws of the State of Oregon. 10. If any action at law or inequity is brought to enforce or interpret\nthe provisions of this Agreement, the prevailing party in such action shall be entitled to reasonable attorney's fees. 11.\nThe Agreement constitutes the sole understanding of the parties with respect to the subject matter hereof and may not be\namended or modified except in writing signed by each of the parties hereto. -------------------------- IN WITNESS\nWHEREOF, the parties hereto have entered into this Agreement on the date set forth above. Disclosing Party: Receiving\nParty: Acumed, Inc. Medex Surgical ---------------------------- ---------------------------- By: Randall Huebner By: Bob\nKraus Ed Kraus ------------------------- ------------------------- /s/ Randall Huebner /s/ Bob Kraus /s/ Ed Kraus\n---------------------------- ---------------------------- Signature Signature Its: President Its: Co-Presidents ------------------------\n-- -- - -- - -- - -- - -- - -- - -- - - Title Title Date: 3-17-99 Date: 3/15/99 ----------------------- -------------------------
+9c05001246961d7ebcaa6e1758c808e6.pdf	effective_date jurisdiction party term	EX-99.(E)(2) 2 dex99e2.htm CONFIDENTIALITY AGREEMENT BETWEEN THE COMPANY AND BTMU,\nDATED JULY 2, 2008\nExhibit (e)(2)\nCONFIDENTIALITY AGREEMENT\nJuly 2, 2008\nThe Bank of Tokyo-Mitsubishi UFJ, Ltd.\n7-1, Marunouchi 2-chome\nChiyoda-ku, Tokyo 100-8388\nJapan\nLadies and Gentlemen:\nYou have requested information from UnionBanCal Corporation (the “Company”) in connection with your consideration of acquiring the\nshares of the Company that you do not already own (a “Transaction”). The Company is willing to furnish or otherwise make available such\ninformation to you in consideration of your agreement to abide by the terms of this letter agreement (this “Agreement”).\n1. Confidentiality.\n(a) You agree to keep confidential and to use only for the purpose of evaluating a possible Transaction all information that the Company or its\nRepresentatives (as hereinafter defined) furnish or otherwise make available to you or your Representatives, whether oral, written or electronic,\ntogether with any reports, analyses, compilations, forecasts, memoranda, notes, studies and any other written or electronic materials prepared by or\nfor you or your Representatives that contain, reflect or are based upon such information (collectively, the “Evaluation Material”); provided, however,\nthat (i) Evaluation Material may be disclosed to those of your officers, directors, employees, accountants, counsel, investment bankers, consultants,\ncommercial bankers or other representatives, either now or hereafter employed or retained, or any of your or their respective affiliates (such persons\nin their capacity as such being generally referred to herein as “Representatives”, it being understood that, for the purposes of this definition only, the\nCompany and its subsidiaries shall not be deemed to be affiliates of yours) who need to know such information for the purpose of assisting you in\nyour evaluation of a Transaction so long as you cause your Representatives to treat the Evaluation Material in a confidential manner and in\naccordance with the terms hereof (it being understood that you will be responsible for any breach of the terms of this Agreement by any of your\nRepresentatives), and (ii) any disclosure of the Evaluation Material may be made to which the Company consents in writing. Notwithstanding the\nforegoing, the term “Evaluation Material” does not include information that (A) was or becomes available to you on a non-confidential basis from a\nsource other than the Company or its Representatives provided such other source is not known by you to be bound by a confidentiality obligation to\nthe Company, (B) is independently developed by you or your Representatives without reference to the Evaluation Material, or (C) was or becomes\ngenerally available to the public (other than as a result of a breach by you or your Representatives of this Agreement). Notwithstanding anything to\nthe contrary in this Agreement, the forecast materials prepared by certain members of management at the request of the Special Committee of the\nBoard of Directors of the Company (the “Special Committee”) shall be deemed Evaluation Material for purposes of this Agreement, except for any\nportion of such forecast materials that becomes generally available to the public with the consent of the Company’s Audit Committee.\nNotwithstanding the foregoing, you and your Representatives shall not be prohibited from (i) using any Evaluation Material for purposes of\nmonitoring and evaluating your investment in the Company or exercising any voting, governance, control or other rights and responsibilities in your\ncapacity as a shareholder of the Company or your Representatives’ capacities as members of the Board of Directors of the Company or\n(ii) disclosing Evaluation Material to the extent such disclosure is required to be made by you in order to avoid violating the federal securities laws\nor rules of any securities exchange to which you are subject in connection with purchasing or offering to purchase securities of the Company,\nincluding by initiating a tender offer to the stockholders of the Company directly.\n(b) In the event that you or any of your Representatives are required to disclose any Evaluation Material in connection with any judicial or\nadministrative proceedings (by oral questions, interrogatories, requests for information or documents, subpoena, Civil Investigation Demand or\nsimilar legal process), you will provide the Company with prompt and, to the extent legally permissible, prior notice of such requirement(s). You\nalso agree, to the extent legally permissible, to provide the Company, in advance of any such disclosure, with a list of any Evaluation Material you\nintend to disclose (and, if applicable, the text of the disclosure language itself) and to cooperate with the Company (at the Company’s expense) to the\nextent the Company may seek to limit such disclosure, including, if requested, taking all reasonable steps to resist or avoid any such judicial or\nadministrative proceedings referred to above, including joining in any motion for a protective order that the Company might seek. If the Company\nhas sought a protective order from an appropriate court or has notified you of its prompt intention to do so, you agree to withhold any Evaluation\nMaterial sought pending a court’s determination on the Company’s motion for a protective order. If and to the extent, in the absence of a protective\norder or the receipt of a waiver from the Company after a request in writing therefor is made by you (such request to be made as soon as practicable\nto allow the Company a reasonable amount of time to respond thereto), you or your Representatives are legally required to so disclose Evaluation\nMaterial to any governmental or self-regulatory authority to avoid censure or penalty, you will use reasonable efforts to obtain assurances that\nconfidential treatment will be accorded to any Evaluation Material that you are so required to disclose and thereafter you may disclose such\ninformation without liability hereunder.\n2\n(c) Upon the request of the Company, you will (and you will cause your Representatives to) promptly deliver to the Company or destroy, as\nrequested by the Company, all copies of the Evaluation Material, including any notes relating thereto, without retaining any copy thereof, including,\nto the extent practicable, expunging all such Evaluation Material from any computer, word processor or other device containing such information. If\nrequested by the Company, an appropriate officer of yours will certify to the Company that all such material has been so delivered or destroyed.\nNotwithstanding the foregoing, (i) your legal department and/or outside counsel may keep one copy of the Evaluation Material (in electronic or\npaper form) and, with respect to your Representatives who are accounting firms, such firms may keep one copy of the Evaluation Material if\nrequired by policies and procedures implemented by such accounting firms in order to comply with applicable law, regulation, professional standards\nor reasonable business practice and (ii) you and your Representatives may retain Evaluation Material to the extent it is “backed-up” on your or their\n(as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be\nexpunged without considerable effort. Any and all duties and obligations existing under this Agreement shall remain in full force and effect,\nnotwithstanding the delivery or destruction of the Evaluation Material required by this Section.\n2. No Representations or Warranties. You understand and agree that neither the Company nor any of its Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material for your or your Representatives’\npurposes and that only those representations and warranties made by us in writing in a subsequent definitive agreement with you related to a\nTransaction, if any, shall have any legal effect. You agree that other than as may be set forth in such definitive agreement neither the Company nor its\nRepresentatives shall have any liability whatsoever to you or any of your Representatives, including, without limitation, in contract, tort or under\nfederal or state securities laws, relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom.\n3. No Obligation. It is understood and agreed that unless and until there is a definitive agreement between us with respect to a Transaction,\nneither the Company nor you intends to be, nor shall either of you or the Company be, under any legal obligation of any kind whatsoever with\nrespect to such Transaction or otherwise, by virtue of any written or oral expressions by our respective Representatives with respect to such\nTransaction, except for the matters specifically agreed to in this Agreement. It is further understood and agreed that this Agreement shall not\npreclude or limit you in any way from purchasing securities of the Company, including by initiating a tender offer to the stockholders of the\nCompany directly, without our consent and without any agreement between you and us.\n3\n4. Equitable Relief. The Company, without prejudice to any rights to judicial relief it may otherwise have, shall be entitled to seek equitable\nrelief, including injunction and/or specific performance, in the event of any breach of the provisions of this Agreement. You agree that you will not\noppose the granting of such relief on the basis that the Company has an adequate remedy at law and that assuming the injunctive relief is obtained\nyou will pay any fees that the Company may incur in enforcing this Agreement. You also agree that you will not seek and agree to waive any\nrequirement for the securing or posting of a bond in connection with the Company’s seeking or obtaining such relief. You acknowledge that the\nEvaluation Material is valuable and unique and that any disclosure thereof in breach of this Agreement will result in irreparable injury to the\nCompany.\n5. Compliance with Law. You hereby confirm that you and your Representatives will take any action necessary or appropriate to prevent the\nuse by you and them of any information about the Company in a way that violates any antitrust or other applicable law.\n6. Miscellaneous.\n(a) Each party’s obligations under this Agreement expire upon the earlier of (i) two years after the date of this Agreement, and (ii) the\ncompletion of a Transaction with you.\n(b) The term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any corporation,\ncompany, group, partnership, trust, governmental entity or individual. The term “affiliate” as used in this Agreement shall have the meaning ascribed\nto such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.\n(c) It is agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege.\n(d) It is understood and agreed that if any provision contained in this Agreement or the application thereof to you, the Company, or any other\nperson or circumstance shall be invalid, illegal or unenforceable in any respect under any applicable law as determined by a court of competent\njurisdiction, the validity, legality and enforceability of the remaining provisions contained in this Agreement, or the application of such provision to\nsuch persons or circumstances other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in\nno way be affected, impaired or invalidated thereby. In the case of any such invalidity, illegality or unenforceability, a suitable and equitable\nprovision shall be substituted therefore in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or\nunenforceable provision.\n4\n(e) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to agreements made\nand wholly to be performed in such state.\n(f) Each party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement\nexclusively in the United States District Court for the Northern District of California (the “Chosen Court”), and solely in connection with claims\narising under this Agreement (i) irrevocably submits to the exclusive jurisdiction of the Chosen Court, (ii) waives any objection to laying venue in\nany such action or proceeding in the Chosen Court, (iii) waives any objection that the Chosen Court is an inconvenient forum or do not have\njurisdiction over any party hereto and (iv) agrees that service of process upon such party in any such action or proceeding shall be effective if notice\nis given in accordance with Section 6(g) of this Agreement. Each party hereto irrevocably waives any and all right to trial by jury in any legal\nproceeding arising out of or relating to this Agreement. Each of the parties hereto agrees that a final judgment in any lawsuit, action or other\nproceeding arising out of or relating to this Agreement brought in the courts referred to in the first sentence of this Section 6(f) shall be conclusive\nand binding upon each of the parties hereto and may be enforced in any other courts the jurisdiction of which each of the parties is or may be subject,\nby suit upon such judgment.\n(g) Any notice hereunder shall be made in writing by overnight courier, personal delivery, facsimile or email (if telephonically confirmed), in\neach case to:\nIf to the Company:\nThe Special Committee of the Board of\nDirectors of UnionBanCal Corporation\n400 California Street\nSan Francisco, CA 94104\nAttention: David R. Andrews\n(c/o UnionBanCal Corporation)\nFacsimile: 415-765-3391\nTelephone: 415-765-3874\nEmail: Morris.Hirsch@uboc.com\nwith a copy to each of:\nUnionBanCal Corporation\n400 California Street\nSan Francisco, CA 94104\nAttention: Morris W. Hirsch\nFacsimile: 415-765-3391\nTelephone: 415-765-3874\nEmail: Morris.Hirsch@uboc.com\n5\nand\nSkadden, Arps, Slate, Meagher & Flom LLP\nFour Times Square\nNew York, NY 10036\nAttention: William S. Rubenstein\nFacsimile: (917) 777-2642\nTelephone: (212) 735-2642\nEmail: william.rubenstein@skadden.com\nIf to you:\nThe Bank of Tokyo-Mitsubishi UFJ, Ltd.\n7-1, Marunouchi 2-chome\nChiyoda-ku, Tokyo 100-8388 Japan\nAttention: Seiji Oizumi\nFacsimile: +81 (3) 3240 3970\nTelephone: +81 (3) 3240 1447\nEmail: seiji_oizumi@mufg.jp\nwith a copy to:\nSullivan & Cromwell LLP\n125 Broad Street\nNew York, NY 10004\nAttention: Donald J. Toumey\nFacsimile: (212) 558-3588\nTelephone: (212) 558-4000\nEmail: toumeyd@sullcrom.com\n(h) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior\nagreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof. This Agreement shall be\nbinding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any attempted or purported\nassignment of this Agreement by either party without the prior written consent of the other party shall be null and void.\n(i) This Agreement may only be amended by a separate writing signed by the Company, the Special Committee of the Board of Directors of\nthe Company and you expressly so amending this Agreement. Any provision of this Agreement may be waived by the party entitled to the benefit\nthereof, if in writing and signed by the party entitled to the benefit thereof (and, in the case of a waiver by the Company, signed by the Special\nCommittee of the Board of Directors of the Company).\n6\n(j) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute\none and the same Agreement.\n[The next page is the signature page]\n7\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this Agreement, whereupon this Agreement\nwill constitute our agreement with respect to the subject matter hereof.\nVery truly yours,\nUNIONBANCAL CORPORATION\nBy /s/ Morris W. Hirsch\nName: Morris W. Hirsch\nTitle: Senior Executive Vice President,\nGeneral Counsel and Secretary\nCONFIRMED AND AGREED TO:\nTHE BANK OF TOKYO-MITSUBISHI UFJ, LTD.\nBy /s/ Akira Kamiya\nName: Akira Kamiya\nTitle: Managing Executive Officer\nDated: July 2, 2008\nCONFIRMED AND AGREED TO:\nTHE SPECIAL COMMITTEE OF THE\nBOARD OF DIRECTORS OF\nUNIONBANCAL CORPORATION\nBy /s/ David R. Andrews\nName: David R. Andrews\nTitle: Chairman of Subcommittee\nDated: July 2, 2008	EX-99.(E)(2) 2 dex99e2.htm CONFIDENTIALITY AGREEMENT BETWEEN THE COMPANY AND BTMU,\nDATED JULY 2, 2008\nExhibit ()(2)\nCONFIDENTIALITY AGREEMENT\nJuly 2, 2008\nThe Bank of Tokyo-Mitsubishi UFJ, Ltd.\n7-1, Marunouchi 2-chome\nChiyoda-ku, Tokyo 100-8388\nJapan\nLadies and Gentlemen:\nYou have requested information from UnionBanCal Corporation (the “Company”) in connection with your consideration of acquiring the\nshares of the Company that you do not already own (a “Transaction”). The Company is willing to furnish or otherwise make available such\ninformation to you in consideration of your agreement to abide by the terms of this letter agreement (this “Agreement”).\n1. Confidentiality.\n(a) You agree to keep confidential and to use only for the purpose of evaluating a possible Transaction all information that the Company or its\nRepresentatives (as hereinafter defined) furnish or otherwise make available to you or your Representatives, whether oral, written or electronic,\ntogether with any reports, analyses, compilations, forecasts, memoranda, notes, studies and any other written or electronic materials prepared by or\nfor you or your Representatives that contain, reflect or are based upon such information (collectively, the “Evaluation Material”); provided, however,\nthat (i) Evaluation Material may be disclosed to those of your officers, directors, employees, accountants, counsel, investment bankers, consultants,\ncommercial bankers or other representatives, either now or hereafter employed or retained, or any of your or their respective affiliates (such persons\nin their capacity as such being generally referred to herein as “Representatives”, it being understood that, for the purposes of this definition only, the\nCompany and its subsidiaries shall not be deemed to be affiliates of yours) who need to know such information for the purpose of assisting you in\nyour evaluation of a Transaction so long as you cause your Representatives to treat the Evaluation Material in a confidential manner and in\naccordance with the terms hereof (it being understood that you will be responsible for any breach of the terms of this Agreement by any of your\n \nRepresentatives), and (ii) any disclosure of the Evaluation Material may be made to which the Company consents in writing. Notwithstanding the\nforegoing, the term “Evaluation Material” does not include information that (A) was or becomes available to you on a non-confidential basis from a\nsource other than the Company or its Representatives provided such other source is not known by you to be bound by a confidentiality obligation to\nthe Company, (B) is independently developed by you or your Representatives without reference to the Evaluation Material, or (C) was or becomes\ngenerally available to the public (other than as a result of a breach by you or your Representatives of this Agreement). Notwithstanding anything to\nthe contrary in this Agreement, the forecast materials prepared by certain members of management at the request of the Special Committee of the\nBoard of Directors of the Company (the “Special Committee”) shall be deemed Evaluation Material for purposes of this Agreement, except for any\nportion of such forecast materials that becomes generally available to the public with the consent of the Company’s Audit Committee.\nNotwithstanding the foregoing, you and your Representatives shall not be prohibited from (i) using any Evaluation Material for purposes of\nmonitoring and evaluating your investment in the Company or exercising any voting, governance, control or other rights and responsibilities in your\ncapacity as a shareholder of the Company or your Representatives’ capacities as members of the Board of Directors of the Company or\n(ii) disclosing Evaluation Material to the extent such disclosure is required to be made by you in order to avoid violating the federal securities laws\nor rules of any securities exchange to which you are subject in connection with purchasing or offering to purchase securities of the Company,\nincluding by initiating a tender offer to the stockholders of the Company directly.\n(b) In the event that you or any of your Representatives are required to disclose any Evaluation Material in connection with any judicial or\nadministrative proceedings (by oral questions, interrogatories, requests for information or documents, subpoena, Civil Investigation Demand or\nsimilar legal process), you will provide the Company with prompt and, to the extent legally permissible, prior notice of such requirement(s). You\nalso agree, to the extent legally permissible, to provide the Company, in advance of any such disclosure, with a list of any Evaluation Material you\nintend to disclose (and, if applicable, the text of the disclosure language itself) and to cooperate with the Company (at the Company’s expense) to the\nextent the Company may seek to limit such disclosure, including, if requested, taking all reasonable steps to resist or avoid any such judicial or\nadministrative proceedings referred to above, including joining in any motion for a protective order that the Company might seek. If the Company\nhas sought a protective order from an appropriate court or has notified you of its prompt intention to do so, you agree to withhold any Evaluation\nMaterial sought pending a court’s determination on the Company’s motion for a protective order. If and to the extent, in the absence of a protective\norder or the receipt of a waiver from the Company after a request in writing therefor is made by you (such request to be made as soon as practicable\nto allow the Company a reasonable amount of time to respond thereto), you or your Representatives are legally required to so disclose Evaluation\nMaterial to any governmental or self-regulatory authority to avoid censure or penalty, you will use reasonable efforts to obtain assurances that\nconfidential treatment will be accorded to any Evaluation Material that you are so required to disclose and thereafter you may disclose such\ninformation without liability hereunder.\n(c) Upon the request of the Company, you will (and you will cause your Representatives to) promptly deliver to the Company or destroy, as\nrequested by the Company, all copies of the Evaluation Material, including any notes relating thereto, without retaining any copy thereof, including,\nto the extent practicable, expunging all such Evaluation Material from any computer, word processor or other device containing such information. If\nrequested by the Company, an appropriate officer of yours will certify to the Company that all such material has been so delivered or destroyed.\nNotwithstanding the foregoing, (i) your legal department and/or outside counsel may keep one copy of the Evaluation Material (in electronic or\npaper form) and, with respect to your Representatives who are accounting firms, such firms may keep one copy of the Evaluation Material if\nrequired by policies and procedures implemented by such accounting firms in order to comply with applicable law, regulation, professional standards\nor reasonable business practice and (ii) you and your Representatives may retain Evaluation Material to the extent it is “backed-up” on your or their\n(as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be\nexpunged without considerable effort. Any and all duties and obligations existing under this Agreement shall remain in full force and effect,\nnotwithstanding the delivery or destruction of the Evaluation Material required by this Section.\n2. No Representations or Warranties. You understand and agree that neither the Company nor any of its Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material for your or your Representatives’\npurposes and that only those representations and warranties made by us in writing in a subsequent definitive agreement with you related to a\nTransaction, if any, shall have any legal effect. You agree that other than as may be set forth in such definitive agreement neither the Company nor its\nRepresentatives shall have any liability whatsoever to you or any of your Representatives, including, without limitation, in contract, tort or under\nfederal or state securities laws, relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom.\n3. No Obligation. It is understood and agreed that unless and until there is a definitive agreement between us with respect to a Transaction,\nneither the Company nor you intends to be, nor shall either of you or the Company be, under any legal obligation of any kind whatsoever with\nrespect to such Transaction or otherwise, by virtue of any written or oral expressions by our respective Representatives with respect to such\nTransaction, except for the matters specifically agreed to in this Agreement. It is further understood and agreed that this Agreement shall not\npreclude or limit you in any way from purchasing securities of the Company, including by initiating a tender offer to the stockholders of the\nCompany directly, without our consent and without any agreement between you and us.\n3\n4. Equitable Relief. The Company, without prejudice to any rights to judicial relief it may otherwise have, shall be entitled to seek equitable\nrelief, including injunction and/or specific performance, in the event of any breach of the provisions of this Agreement. You agree that you will not\noppose the granting of such relief on the basis that the Company has an adequate remedy at law and that assuming the injunctive relief is obtained\nyou will pay any fees that the Company may incur in enforcing this Agreement. You also agree that you will not seek and agree to waive any\nrequirement for the securing or posting of a bond in connection with the Company’s seeking or obtaining such relief. You acknowledge that the\nEvaluation Material is valuable and unique and that any disclosure thereof in breach of this Agreement will result in irreparable injury to the\nCompany.\n5. Compliance with Law. You hereby confirm that you and your Representatives will take any action necessary or appropriate to prevent the\nuse by you and them of any information about the Company in a way that violates any antitrust or other applicable law.\n6. Miscellaneous.\n(a) Each party’s obligations under this Agreement expire upon the earlier of (i) two years after the date of this Agreement, and (ii) the\ncompletion of a Transaction with you.\n(b) The term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any corporation,\ncompany, group, partnership, trust, governmental entity or individual. The term “affiliate” as used in this Agreement shall have the meaning ascribed\nto such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.\n \n \n(c) It is agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege.\n(d) It is understood and agreed that if any provision contained in this Agreement or the application thereof to you, the Company, or any other\nperson or circumstance shall be invalid, illegal or unenforceable in any respect under any applicable law as determined by a court of competent\njurisdiction, the validity, legality and enforceability of the remaining provisions contained in this Agreement, or the application of such provision to\nsuch persons or circumstances other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in\nno way be affected, impaired or invalidated thereby. In the case of any such invalidity, illegality or unenforceability, a suitable and equitable\nprovision shall be substituted therefore in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or\nunenforceable provision.\n(e) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to agreements made\nand wholly to be performed in such state.\n(f) Each party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement\nexclusively in the United States District Court for the Northern District of California (the “Chosen Court”), and solely in connection with claims\narising under this Agreement (i) irrevocably submits to the exclusive jurisdiction of the Chosen Court, (ii) waives any objection to laying venue in\nany such action or proceeding in the Chosen Court, (iii) waives any objection that the Chosen Court is an inconvenient forum or do not have\njurisdiction over any party hereto and (iv) agrees that service of process upon such party in any such action or proceeding shall be effective if notice\nis given in accordance with Section 6(g), of this Agreement. Each party hereto irrevocably waives any and all right to trial by jury in any legal\nproceeding arising out of or relating to this Agreement. Each of the parties hereto agrees that a final judgment in any lawsuit, action or other\nproceeding arising out of or relating to this Agreement brought in the courts referred to in the first sentence of this Section 6(f) shall be conclusive\nand binding upon each of the parties hereto and may be enforced in any other courts the jurisdiction of which each of the parties is or may be subject,\nby suit upon such judgment.\n(g) Any notice hereunder shall be made in writing by overnight courier, personal delivery, facsimile or email (if telephonically confirmed), in\neach case to:\nIf to the Company:\nThe Special Committee of the Board of\nDirectors of UnionBanCal Corporation\n400 California Street\nSan Francisco, CA 94104\nAttention: David R. Andrews\n(c/o UnionBanCal Corporation)\nFacsimile: 415-765-3391\nTelephone: 415-765-3874\nEmail: Morris.Hirsch@uboc.com\nwith a copy to each of:\nUnionBanCal Corporation\n400 California Street\nSan Francisco, CA 94104\nAttention: Morris W. Hirsch\nFacsimile: 415-765-3391\nTelephone: 415-765-3874\nEmail: Morris.Hirsch@uboc.com\nand\nSkadden, Arps, Slate, Meagher & Flom LLP\nFour Times Square\nNew York, NY 10036\nAttention: William S. Rubenstein\nFacsimile: (917) 777-2642\nTelephone: (212) 735-2642\nEmail: william.rubenstein@skadden.com\nIf to you:\nThe Bank of Tokyo-Mitsubishi UFJ, Ltd.\n7-1, Marunouchi 2-chome\nChiyoda-ku, Tokyo 100-8388 Japan\nAttention: Seiji Oizumi\nFacsimile: +81 (3) 3240 3970\nTelephone: +81 (3) 3240 1447\nEmail: seiji_oizumi@mufg.jp\nwith a copy to:\nSullivan & Cromwell LLP\n125 Broad Street\nNew York, NY 10004\nAttention: Donald J. Toumey\nFacsimile: (212) 558-3588\nTelephone: (212) 558-4000\nEmail: toumeyd@sullcrom.com\n(h) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior\nagreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof. This Agreement shall be\nbinding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any attempted or purported\nassignment of this Agreement by either party without the prior written consent of the other party shall be null and void.\n(i) This Agreement may only be amended by a separate writing signed by the Company, the Special Committee of the Board of Directors of\nthe Company and you expressly so amending this Agreement. Any provision of this Agreement may be waived by the party entitled to the benefit\nthereof, if in writing and signed by the party entitled to the benefit thereof (and, in the case of a waiver by the Company, signed by the Special\nCommittee of the Board of Directors of the Company).\n \n(j) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute\none and the same Agreement.\n[The next page is the signature page]\n7\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this Agreement, whereupon this Agreement will constitute our agreement with respect to the subject matter hereof. CONFIRMED AND AGREED TO:\nTHE BANK OF TOKYO-MITSUBISHI UFJ, LTD. By /s/ Akira Kamiya\nName: Akira Kamiya\nTitle: Managing Executive Officer\nDated: July 2, 2008\nCONFIRMED AND AGREED TO:\nTHE SPECIAL COMMITTEE OF THE\nBOARD OF DIRECTORS OF\nUNIONBANCAL CORPORATION\nBy /s/ David R. Andrews\nName: David R. Andrews\nTitle: Chairman of Subcommittee\nDated: July 2, 2008\nVery truly yours,\nUNIONBANCAL CORPORATION\nBy /s/ Morris W. Hirsch\nName: Morris W. Hirsch\nTitle: Senior Executive Vice President,\nGeneral Counsel and Secretary	EX-99.(E)(2) 2 dex99e2.htm CONFIDENTIALITY AGREEMENT BETWEEN THE COMPANY AND BTMU,\nDATED JULY 2, 2008\nExhibit (e)(2)\nCONFIDENTIALITY AGREEMENT\nJuly 2, 2008\nThe Bank of Tokyo-Mitsubishi UFJ, Ltd.\n7-1, Marunouchi 2-chome\nChiyoda-ku, Tokyo 100-8388\nJapan\nLadies and Gentlemen:\nYou have requested information from UnionBanCal Corporation (the "Company.") in connection with your consideration of acquiring the\nshares of the Company that you do not already own (a "Transaction"). The Company is willing to furnish or otherwise make available such\ninformation to you in consideration of your agreement to abide by the terms of this letter agreement (this "Agreement").\n1. Confidentiality..\n(a) You agree to keep confidential and to use only for the purpose of evaluating a possible Transaction all information that the Company or\nits\nRepresentatives (as hereinafter defined) furnish or otherwise make available to you or your Representatives, whether oral, written or electronic,\ntogether with any reports, analyses, compilations, forecasts, memoranda, notes, studies and any other written or electronic materials prepared by or\nfor you or your Representatives that contain, reflect or are based upon such information (collectively, the "Evaluation Material"); provided, however\nthat (i) Evaluation Material may be disclosed to those of your officers, directors, employees, accountants, counsel, investment bankers, consultants,\ncommercial bankers or other representatives, either now or hereafter employed or retained, or any of your or their respective affiliates (such persons\nin their capacity as such being generally referred to herein as "Representatives", it being understood that, for the purposes of this definition only,\nthe\nCompany and its subsidiaries shall not be deemed to be affiliates of yours) who need to know such information for the purpose of assisting you in\nyour evaluation of a Transaction so long as you cause your Representatives to treat the Evaluation Material in a confidential manner and in\naccordance with the terms hereof (it being understood that you will be responsible for any breach of the terms of this Agreement by any of your\nRepresentatives), and (ii) any disclosure of the Evaluation Material may be made to which the Company consents in writing. Notwithstanding the\nforegoing, the term "Evaluation Material" does not include information that (A) was or becomes available to you on a non-confidential basis from a\nsource other than the Company or its Representatives provided such other source is not known by you to be bound by a confidentiality obligation\nto\nthe Company, (B) is independently developed by you or your Representatives without reference to the Evaluation Material, or (C) was or becomes\ngenerally available to the public (other than as a result of a breach by you or your Representatives of this Agreement). Notwithstanding anything to\nthe contrary in this Agreement, the forecast materials prepared by certain members of management at the request of the Special Committee of the\nBoard of Directors of the Company (the "Special Committee") shall be deemed Evaluation Material for purposes of this Agreement, except for any\nportion of such forecast materials that becomes generally available to the public with the consent of the Company's Audit Committee.\nNotwithstanding the foregoing, you and your Representatives shall not be prohibited from (i) using any Evaluation Material for purposes\nof\nmonitoring and evaluating your investment in the Company or exercising any voting, governance, control or other rights and responsibilities in your\ncapacity as a shareholder of the Company or your Representatives' capacities as members of the Board of Directors of the Company\nor\n(ii) disclosing Evaluation Material to the extent such disclosure is required to be made by you in order to avoid violating the federal securities\nlaws\nor rules of any securities exchange to which you are subject in connection with purchasing or offering to purchase securities of the Company,\nincluding by initiating a tender offer to the stockholders of the Company directly.\n(b) In the event that you or any of your Representatives are required to disclose any Evaluation Material in connection with any judicial or\nadministrative proceedings (by oral questions, interrogatories, requests for information or documents, subpoena, Civil Investigation Demand\nor\nsimilar legal process), you will provide the Company with prompt and, to the extent legally permissible, prior notice of such requirement(s).\nYou\nalso agree, to the extent legally permissible, to provide the Company, in advance of any such disclosure, with a list of any Evaluation Material you\nintend to disclose (and, if applicable, the text of the disclosure language itself) and to cooperate with the Company (at the Company's expense) to\nthe\nextent the Company may seek to limit such disclosure, including, if requested, taking all reasonable steps to resist or avoid any such judicial or\nadministrative proceedings referred to above, including joining in any motion for a protective order that the Company might seek. If the Company\nhas sought a protective order from an appropriate court or has notified you of its prompt intention to do so, you agree to withhold any\nEvaluation\nMaterial sought pending a court's determination on the Company's motion for a protective order. If and to the extent, in the absence of a protective\norder or the receipt of a waiver from the Company after a request in writing therefor is made by you (such request to be made as soon as practicable\nto allow the Company a reasonable amount of time to respond thereto), you or your Representatives are legally required to so disclose Evaluation\nMaterial to any governmental or self-regulatory authority to avoid censure or penalty, you will use reasonable efforts to obtain assurances that\nconfidential treatment will be accorded to any Evaluation Material that you are so required to disclose and thereafter you may disclose such\ninformation without liability hereunder.\n2\n(c) Upon the request of the Company, you will (and you will cause your Representatives to) promptly deliver to the Company or destroy, as\nrequested by the Company, all copies of the Evaluation Material, including any notes relating thereto, without retaining any copy thereof, including,\nto the extent practicable, expunging all such Evaluation Material from any computer, word processor or other device containing such information\nIf\nrequested by the Company, an appropriate officer of yours will certify to the Company that all such material has been so delivered or destroyed.\nNotwithstanding the foregoing, (i) your legal department and/or outside counsel may keep one copy of the Evaluation Material (in electronic or\npaper form) and, with respect to your Representatives who are accounting firms, such firms may keep one copy of the Evaluation Material if\nrequired by policies and procedures implemented by such accounting firms in order to comply with applicable law, regulation, professional standards\nor reasonable business practice and (ii) you and your Representatives may retain Evaluation Material to the extent it is "backed-up" on your or their\n(as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be\nexpunged without considerable effort. Any and all duties and obligations existing under this Agreement shall remain in full force and effect,\nnotwithstanding the delivery or destruction of the Evaluation Material required by this Section.\n2. No Representations or Warranties. You understand and agree that neither the Company nor any of its Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material for your or your Representatives'\npurposes and that only those representations and warranties made by us in writing in a subsequent definitive agreement with you related to a\nTransaction, if any, shall have any legal effect. You agree that other than as may be set forth in such definitive agreement neither the Company nor its\nRepresentatives shall have any liability whatsoever to you or any of your Representatives, including, without limitation, in contract, tort or under\nfederal or state securities laws, relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom.\n3. No Obligation. It is understood and agreed that unless and until there is a definitive agreement between us with respect to a Transaction,\nneither the Company nor you intends to be, nor shall either of you or the Company be, under any legal obligation of any kind whatsoever with\nrespect to such Transaction or otherwise, by virtue of any written or oral expressions by our respective Representatives with respect to such\nTransaction, except for the matters specifically agreed to in this Agreement. It is further understood and agreed that this Agreement shall not\npreclude or limit you in any way from purchasing securities of the Company, including by initiating a tender offer to the stockholders of the\nCompany directly, without our consent and without any agreement between you and us.\n3\n4. Equitable Relief. The Company, without prejudice to any rights to judicial relief it may otherwise have, shall be entitled to seek equitable\nrelief, including injunction and/or specific performance, in the event of any breach of the provisions of this Agreement. You agree that you will not\noppose the granting of such relief on the basis that the Company has an adequate remedy at law and that assuming the injunctive relief is obtained\nyou will pay any fees that the Company may incur in enforcing this Agreement. You also agree that you will not seek and agree to waive any\nrequirement for the securing or posting of a bond in connection with the Company's seeking or obtaining such relief. You acknowledge that the\nEvaluation Material is valuable and unique and that any disclosure thereof in breach of this Agreement will result in irreparable injury to the\nCompany.\n5. Compliance with Law. You hereby confirm that you and your Representatives will take any action necessary or appropriate to prevent the\nuse by you and them of any information about the Company in a way that violates any antitrust or other applicable law.\n6. Miscellaneous.\n(a) Each party's obligations under this Agreement expire upon the earlier of (i) two years after the date of this Agreement, and (ii) the\ncompletion of a Transaction with you.\n(b) The term "person" as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any corporation,\ncompany, group, partnership, trust, governmental entity or individual. The term "affiliate" as used in this Agreement shall have the meaning ascribed\nto such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.\n(c) It is agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege.\n(d) It is understood and agreed that if any provision contained in this Agreement or the application thereof to you, the Company, or any other\nperson or circumstance shall be invalid, illegal or unenforceable in any respect under any applicable law as determined by a court of competent\njurisdiction, the validity, legality and enforceability of the remaining provisions contained in this Agreement, or the application of such provision to\nsuch persons or circumstances other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in\nno\nway be affected, impaired or invalidated thereby. In the case of any such invalidity, illegality or unenforceability, a suitable and equitable\nprovision shall be substituted therefore in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or\nunenforceable provision.\n4\n(e) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to agreements made\nand wholly to be performed in such state.\n(f) Each party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement\nexclusively in the United States District Court for the Northern District of California (the "Chosen Court"), and solely in connection with claims\narising under this Agreement (i) irrevocably submits to the exclusive jurisdiction of the Chosen Court, (ii) waives any objection to laying venue in\nany such action or proceeding in the Chosen Court, (iii) waives any objection that the Chosen Court is an inconvenient forum or do not have\njurisdiction over any party hereto and (iv) agrees that service of process upon such party in any such action or proceeding shall be effective if notice\nis given in accordance with Section 6(g) of this Agreement. Each party hereto irrevocably waives any and all right to trial by jury in any legal\nproceeding arising out of or relating to this Agreement. Each of the parties hereto agrees that a final judgment in any lawsuit, action or other\nproceeding arising out of or relating to this Agreement brought in the courts referred to in the first sentence of this Section 6(f) shall be conclusive\nand binding upon each of the parties hereto and may be enforced in any other courts the jurisdiction of which each of the parties is or may be subject,\nby suit upon such judgment.\n(g) Any notice hereunder shall be made in writing by overnight courier, personal delivery, facsimile or email (if telephonically confirmed), in\neach case to:\nIf to the Company:\nThe Special Committee of the Board of\nDirectors of UnionBanCal Corporation\n400 California Street\nSan Francisco, CA 94104\nAttention: David R. Andrews\n(c/o UnionBanCal Corporation)\nFacsimile: 415-765-3391\nTelephone: 415-765-3874\nEmail: Morris.Hirsch@uboc.com\nwith a copy to each of:\nUnionBanCal Corporation\n400 California Street\nSan Francisco, CA 94104\nAttention: Morris W. Hirsch\nFacsimile: 415-765-3391\nTelephone: 415-765-3874\nEmail: Morris.Hirsch@uboc.com\n5\nand\nSkadden, Arps, Slate, Meagher & Flom LLP\nFour Times Square\nNew York, NY 10036\nAttention: William S. Rubenstein\nFacsimile: (917) 777-2642\nTelephone: (212) 735-2642\nEmail: william.rubenstein@skadden.com\nIf to you:\nThe Bank of Tokyo-Mitsubishi UFJ, Ltd.\n7-1, Marunouchi 2-chome\nChiyoda-ku, Tokyo 100-8388 Japan\nAttention: Seiji Oizumi\nFacsimile: +81 (3) 3240 3970\nTelephone: +81 (3) 3240 1447\nEmail: seiji_oizumi@mufg.jp\nwith a copy to:\nSullivan & Cromwell LLP\n125 Broad Street\nNew York, NY 10004\nAttention: Donald J. Toumey\nFacsimile: (212) 558-3588\nTelephone: (212) 558-4000\nEmail: toumeyd@sullcrom.com\n(h) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior\nagreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof. This Agreement shall be\nbinding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any attempted or purported\nassignment of this Agreement by either party without the prior written consent of the other party shall be null and void.\n(i) This Agreement may only be amended by a separate writing signed by the Company, the Special Committee of the Board of Directors of\nthe Company and you expressly SO amending this Agreement. Any provision of this Agreement may be waived by the party entitled to the benefit\nthereof, if in writing and signed by the party entitled to the benefit thereof (and, in the case of a waiver by the Company, signed by the Special\nCommittee of the Board of Directors of the Company).\n6\n(j) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute\none and the same Agreement.\n[The next page is the signature page]\n7\nIf you are in agreement with the foregoing, please So indicate by signing and returning one copy of this Agreement, whereupon this Agreement\nwill constitute our agreement with respect to the subject matter hereof.\nVery truly yours,\nUNIONBANCAL CORPORATION\nBy /s/ Morris W. Hirsch\nName: Morris W. Hirsch\nTitle: Senior Executive Vice President,\nGeneral Counsel and Secretary\nCONFIRMED AND AGREED TO:\nTHE BANK OF TOKYO-MITSUBISHI UFJ, LTD.\nBy /s/ Akira Kamiya\nName: Akira Kamiya\nTitle: Managing Executive Officer\nDated: July 2, 2008\nCONFIRMED AND AGREED TO:\nTHE SPECIAL COMMITTEE OF THE\nBOARD OF DIRECTORS OF\nUNIONBANCAL CORPORATION\nBy /s/ David R. Andrews\nName: David R. Andrews\nTitle: Chairman of Subcommittee\nDated: July 2, 2008	EX-99.(E)(2) 2 dex99e2.htm CONFIDENTIALITY AGREEMENT BETWEEN THE COMPANY AND BTMU,\nDATED JULY 2, 2008\nExhibit (e)(2)\nCONFIDENTIALITY AGREEMENT\nJuly 2, 2008\nThe Bank of Tokyo-Mitsubishi UFJ, Ltd.\n7-1, Marunouchi 2-chome\nChiyoda-ku, Tokyo 100-8388\nJapan\nLadies and Gentlemen:\nYou have requested information from UnionBanCal Corporation (the “Company”) in connection with your consideration of acquiring the\nshares of the Company that you do not already own (a “Transaction”). The Company is willing to furnish or otherwise make available such\ninformation to you in consideration of your agreement to abide by the terms of this letter agreement (this “Agreement”).\n1. Confidentiality.\n(a) You agree to keep confidential and to use only for the purpose of evaluating a possible Transaction all information that the Company or its\nRepresentatives (as hereinafter defined) furnish or otherwise make available to you or your Representatives, whether oral, written or electronic,\ntogether with any reports, analyses, compilations, forecasts, memoranda, notes, studies and any other written or electronic materials prepared by or\nfor you or your Representatives that contain, reflect or are based upon such information (collectively, the “Evaluation Material”); provided, however,\nthat (i) Evaluation Material may be disclosed to those of your officers, directors, employees, accountants, counsel, investment bankers, consultants,\ncommercial bankers or other representatives, either now or hereafter employed or retained, or any of your or their respective affiliates (such persons\nin their capacity as such being generally referred to herein as “Representatives”, it being understood that, for the purposes of this definition only, the\nCompany and its subsidiaries shall not be deemed to be affiliates of yours) who need to know such information for the purpose of assisting you in\nyour evaluation of a Transaction so long as you cause your Representatives to treat the Evaluation Material in a confidential manner and in\naccordance with the terms hereof (it being understood that you will be responsible for any breach of the terms of this Agreement by any of your\nRepresentatives), and (ii) any disclosure of the Evaluation Material may be made to which the Company consents in writing. Notwithstanding the\nforegoing, the term “Evaluation Material” does not include information that (A) was or becomes available to you on a non-confidential basis from a\nsource other than the Company or its Representatives provided such other source is not known by you to be bound by a confidentiality obligation to\nthe Company, (B) is independently developed by you or your Representatives without reference to the Evaluation Material, or (C) was or becomes\ngenerally available to the public (other than as a result of a breach by you or your Representatives of this Agreement). Notwithstanding anything to\nthe contrary in this Agreement, the forecast materials prepared by certain members of management at the request of the Special Committee of the\nBoard of Directors of the Company (the “Special Committee”) shall be deemed Evaluation Material for purposes of this Agreement, except for any\nportion of such forecast materials that becomes generally available to the public with the consent of the Company’s Audit Committee.\nNotwithstanding the foregoing, you and your Representatives shall not be prohibited from (i) using any Evaluation Material for purposes of\nmonitoring and evaluating your investment in the Company or exercising any voting, governance, control or other rights and responsibilities in your\ncapacity as a shareholder of the Company or your Representatives’ capacities as members of the Board of Directors of the Company or\n(ii) disclosing Evaluation Material to the extent such disclosure is required to be made by you in order to avoid violating the federal securities laws\nor rules of any securities exchange to which you are subject in connection with purchasing or offering to purchase securities of the Company,\nincluding by initiating a tender offer to the stockholders of the Company directly.\n(b) In the event that you or any of your Representatives are required to disclose any Evaluation Material in connection with any judicial or\nadministrative proceedings (by oral questions, interrogatories, requests for information or documents, subpoena, Civil Investigation Demand or\nsimilar legal process), you will provide the Company with prompt and, to the extent legally permissible, prior notice of such requirement(s). You\nalso agree, to the extent legally permissible, to provide the Company, in advance of any such disclosure, with a list of any Evaluation Material you\nintend to disclose (and, if applicable, the text of the disclosure language itself) and to cooperate with the Company (at the Company’s expense) to the\nextent the Company may seek to limit such disclosure, including, if requested, taking all reasonable steps to resist or avoid any such judicial or\nadministrative proceedings referred to above, including joining in any motion for a protective order that the Company might seek. If the Company\nhas sought a protective order from an appropriate court or has notified you of its prompt intention to do so, you agree to withhold any Evaluation\nMaterial sought pending a court’s determination on the Company’s motion for a protective order. If and to the extent, in the absence of a protective\norder or the receipt of a waiver from the Company after a request in writing therefor is made by you (such request to be made as soon as practicable\nto allow the Company a reasonable amount of time to respond thereto), you or your Representatives are legally required to so disclose Evaluation\nMaterial to any governmental or self-regulatory authority to avoid censure or penalty, you will use reasonable efforts to obtain assurances that\nconfidential treatment will be accorded to any Evaluation Material that you are so required to disclose and thereafter you may disclose such\ninformation without liability hereunder.\n2\n(c) Upon the request of the Company, you will (and you will cause your Representatives to) promptly deliver to the Company or destroy, as\nrequested by the Company, all copies of the Evaluation Material, including any notes relating thereto, without retaining any copy thereof, including,\nto the extent practicable, expunging all such Evaluation Material from any computer, word processor or other device containing such information. If\nrequested by the Company, an appropriate officer of yours will certify to the Company that all such material has been so delivered or destroyed.\nNotwithstanding the foregoing, (i) your legal department and/or outside counsel may keep one copy of the Evaluation Material (in electronic or\npaper form) and, with respect to your Representatives who are accounting firms, such firms may keep one copy of the Evaluation Material if\nrequired by policies and procedures implemented by such accounting firms in order to comply with applicable law, regulation, professional standards\nor reasonable business practice and (ii) you and your Representatives may retain Evaluation Material to the extent it is “backed-up” on your or their\n(as the case may be) electronic information management and communications systems or servers, is not available to an end user and cannot be\nexpunged without considerable effort. Any and all duties and obligations existing under this Agreement shall remain in full force and effect,\nnotwithstanding the delivery or destruction of the Evaluation Material required by this Section.\n2. No Representations or Warranties. You understand and agree that neither the Company nor any of its Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material for your or your Representatives’\npurposes and that only those representations and warranties made by us in writing in a subsequent definitive agreement with you related to a\nTransaction, if any, shall have any legal effect. You agree that other than as may be set forth in such definitive agreement neither the Company nor its\nRepresentatives shall have any liability whatsoever to you or any of your Representatives, including, without limitation, in contract, tort or under\nfederal or state securities laws, relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom.\n3. No Obligation. It is understood and agreed that unless and until there is a definitive agreement between us with respect to a Transaction,\nneither the Company nor you intends to be, nor shall either of you or the Company be, under any legal obligation of any kind whatsoever with\nrespect to such Transaction or otherwise, by virtue of any written or oral expressions by our respective Representatives with respect to such\nTransaction, except for the matters specifically agreed to in this Agreement. It is further understood and agreed that this Agreement shall not\npreclude or limit you in any way from purchasing securities of the Company, including by initiating a tender offer to the stockholders of the\nCompany directly, without our consent and without any agreement between you and us.\n3\n4. Equitable Relief. The Company, without prejudice to any rights to judicial relief it may otherwise have, shall be entitled to seek equitable\nrelief, including injunction and/or specific performance, in the event of any breach of the provisions of this Agreement. You agree that you will not\noppose the granting of such relief on the basis that the Company has an adequate remedy at law and that assuming the injunctive relief is obtained\nyou will pay any fees that the Company may incur in enforcing this Agreement. You also agree that you will not seek and agree to waive any\nrequirement for the securing or posting of a bond in connection with the Company’s seeking or obtaining such relief. You acknowledge that the\nEvaluation Material is valuable and unique and that any disclosure thereof in breach of this Agreement will result in irreparable injury to the\nCompany.\n5. Compliance with Law. You hereby confirm that you and your Representatives will take any action necessary or appropriate to prevent the\nuse by you and them of any information about the Company in a way that violates any antitrust or other applicable law.\n6. Miscellaneous.\n(a) Each party’s obligations under this Agreement expire upon the earlier of (i) two years after the date of this Agreement, and (ii) the\ncompletion of a Transaction with you.\n(b) The term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any corporation,\ncompany, group, partnership, trust, governmental entity or individual. The term “affiliate” as used in this Agreement shall have the meaning ascribed\nto such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.\n(c) It is agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege.\n(d) It is understood and agreed that if any provision contained in this Agreement or the application thereof to you, the Company, or any other\nperson or circumstance shall be invalid, illegal or unenforceable in any respect under any applicable law as determined by a court of competent\njurisdiction, the validity, legality and enforceability of the remaining provisions contained in this Agreement, or the application of such provision to\nsuch persons or circumstances other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in\nno way be affected, impaired or invalidated thereby. In the case of any such invalidity, illegality or unenforceability, a suitable and equitable\nprovision shall be substituted therefore in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or\nunenforceable provision.\n4\n(e) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to agreements made\nand wholly to be performed in such state.\n(f) Each party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement\nexclusively in the United States District Court for the Northern District of California (the “Chosen Court”), and solely in connection with claims\narising under this Agreement (i) irrevocably submits to the exclusive jurisdiction of the Chosen Court, (ii) waives any objection to laying venue in\nany such action or proceeding in the Chosen Court, (iii) waives any objection that the Chosen Court is an inconvenient forum or do not have\njurisdiction over any party hereto and (iv) agrees that service of process upon such party in any such action or proceeding shall be effective if notice\nis given in accordance with Section 6(g) of this Agreement. Each party hereto irrevocably waives any and all right to trial by jury in any legal\nproceeding arising out of or relating to this Agreement. Each of the parties hereto agrees that a final judgment in any lawsuit, action or other\nproceeding arising out of or relating to this Agreement brought in the courts referred to in the first sentence of this Section 6(f) shall be conclusive\nand binding upon each of the parties hereto and may be enforced in any other courts the jurisdiction of which each of the parties is or may be subject,\nby suit upon such judgment.\n(g) Any notice hereunder shall be made in writing by overnight courier, personal delivery, facsimile or email (if telephonically confirmed), in\neach case to:\nIf to the Company:\nThe Special Committee of the Board of\nDirectors of UnionBanCal Corporation\n400 California Street\nSan Francisco, CA 94104\nAttention: David R. Andrews\n(c/o UnionBanCal Corporation)\nFacsimile: 415-765-3391\nTelephone: 415-765-3874\nEmail: Morris.Hirsch@uboc.com\nwith a copy to each of:\nUnionBanCal Corporation\n400 California Street\nSan Francisco, CA 94104\nAttention: Morris W. Hirsch\nFacsimile: 415-765-3391\nTelephone: 415-765-3874\nEmail: Morris.Hirsch@uboc.com\n5\nand\nSkadden, Arps, Slate, Meagher & Flom LLP\nFour Times Square\nNew York, NY 10036\nAttention: William S. Rubenstein\nFacsimile: (917) 777-2642\nTelephone: (212) 735-2642\nEmail: william.rubenstein@skadden.com\nIf to you:\nThe Bank of Tokyo-Mitsubishi UFJ, Ltd.\n7-1, Marunouchi 2-chome\nChiyoda-ku, Tokyo 100-8388 Japan\nAttention: Seiji Oizumi\nFacsimile: +81 (3) 3240 3970\nTelephone: +81 (3) 3240 1447\nEmail: seiji_oizumi@mufg.jp\nwith a copy to:\nSullivan & Cromwell LLP\n125 Broad Street\nNew York, NY 10004\nAttention: Donald J. Toumey\nFacsimile: (212) 558-3588\nTelephone: (212) 558-4000\nEmail: toumeyd@sullcrom.com\n(h) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior\nagreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof. This Agreement shall be\nbinding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any attempted or purported\nassignment of this Agreement by either party without the prior written consent of the other party shall be null and void.\n(i) This Agreement may only be amended by a separate writing signed by the Company, the Special Committee of the Board of Directors of\nthe Company and you expressly so amending this Agreement. Any provision of this Agreement may be waived by the party entitled to the benefit\nthereof, if in writing and signed by the party entitled to the benefit thereof (and, in the case of a waiver by the Company, signed by the Special\nCommittee of the Board of Directors of the Company).\n6\n(j) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute\none and the same Agreement.\n[The next page is the signature page]\n7\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this Agreement, whereupon this Agreement\nwill constitute our agreement with respect to the subject matter hereof.\nVery truly yours,\nUNIONBANCAL CORPORATION\nBy /s/ Morris W. Hirsch\nName: Morris W. Hirsch\nTitle: Senior Executive Vice President,\nGeneral Counsel and Secretary\nCONFIRMED AND AGREED TO:\nTHE BANK OF TOKYO-MITSUBISHI UFJ, LTD.\nBy /s/ Akira Kamiya\nName: Akira Kamiya\nTitle: Managing Executive Officer\nDated: July 2, 2008\nCONFIRMED AND AGREED TO:\nTHE SPECIAL COMMITTEE OF THE\nBOARD OF DIRECTORS OF\nUNIONBANCAL CORPORATION\nBy /s/ David R. Andrews\nName: David R. Andrews\nTitle: Chairman of Subcommittee\nDated: July 2, 2008
+a39eb99d4f92d453a942900c78205171.pdf	effective_date jurisdiction party term	EX-10 2 lwlg061412fm8k_ex10z1.htm EXHIBIT 10.1\nDIRECTOR AGREEMENT\nTHIS AGREEMENT made as of June 11, 2012, by and between Lightwave Logic, Inc., located at 121\nContinental Drive, Suite 110, Newark, DE 19713 (the “Company”); and Ronald A. Bucchi (“Director”).\nWHEREAS, the Company and the Director desire to enter into an agreement which will set forth the terms and\nconditions upon which the Director shall serve as a director on the Company’s Board of Directors.\nNOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties have agreed,\nand do hereby agree, as follows:\nSection 1: Appointment.\nThe Company’s Board of Directors appoints the Director as a member of the Company’s Board of Directors and\nthe Director accepts such appointment upon the terms and conditions set forth. The Director shall serve as a member of\nthe Company’s Board of Directors until his successor is appointed or elected and shall qualify. However, neither the\nCompany, nor any other person, shall be required to cause the continuation, election, or re-appointment of the Director as\na member of the Company’s Board of Directors.\nSection 2: Indemnification\nThe Director shall receive the full benefits, protection, and rights of full and complete indemnification from the\nCompany in connection with his position with the Company as a member of the Company’s Board of Directors to the\nfullest extent permitted by law. Further, the Director shall be named as an insured on the Company’s underwritten\nofficer and director liability insurance policy. The Director shall execute the Indemnification Agreement attached hereto\nas Appendix A, which is incorporated into this Agreement.\nSection 3: Compensation.\nPursuant to the Company’s 2007 Employee Stock Plan, the Director will receive an option to purchase up to Two\nHundred Thousand (200,000) shares of restricted common stock of the Company at the strike price of $.90 per share.\nThe options shall vest as follows: (i) fifty thousand (50,000) options shall vest immediately; and (ii) the remaining\noptions shall vest in three (3) equal annual installments of fifty thousand (50,000) options per year commencing on the\n1st day of each one year anniversary of execution of this Agreement. All of the options shall expire on June 10, 2017.\nSection 4: Duties/ Extent of Services.\nThe Director shall serve as a member of the Board of Directors of the Company, and shall assume the duties that\nthe Chairman of the Board may assign. Subject to Section 6 contained herein, nothing in this Agreement shall be con-\nstrued to limit the Director's freedom to\nengage in other businesses. It is agreed, however, that the Director will devote his best efforts to the needs of the\nCompany, and shall not allow his other business activities to materially interfere with his duties to the Company.\nSection 5: Expenses.\nSubject to prior approval of the Chairman of the Board of Directors, the Director is authorized to incur reasona-\nble expenses on behalf of the Company in performing his duties, including expenses for travel, transportation,\nentertainment, and similar items, which expenses shall be paid by the Company.\nSection 6: Director’s Non-Disclosure.\nThe Director shall execute the Director’s Non-disclosure Agreement attached hereto as Appendix B, which is\nincorporated into this Agreement.\nSection 7: Waiver of Breach.\nThe waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a\nwaiver of any subsequent breach.\nSection 8: Entire Agreement\nThis Agreement contains the entire agreement of the parties pertaining to the appointment of the Director to the\nCompany’s Board of Directors.\nSection 9: Amendment of Agreement\nNo change or modification of this Agreement shall be valid unless it is in writing and signed by the party against\nwhom the change or modification is sought to be enforced. No change or modification by the Company shall be effective\nunless it is approved by the Company’s Board of Directors and signed by an officer specifically authorized to sign such\ndocuments.\nSection 10: Severability of Provisions\nIf any provision of this Agreement, the Indemnification Agreement or the Director’s Non-disclosure Agreement\nis invalidated or held unenforceable, the invalidity or unenforceability of that provision or provisions shall not affect the\nvalidity or enforceability of any other provision of this Agreement, the Indemnification Agreement or the Director ’s\nNon-disclosure Agreement.\nSection 11: Governing Law and Venue\nAll questions regarding the validity and interpretation of this Agreement shall be governed by and construed and\nenforced in all respects in accordance with the laws of the State of Delaware. The sole and proper venue shall be New\nCastle County, Delaware.\nSection 12: Arbitration of Disputes\nIf a dispute arises out of or relates to this Agreement, or the breach thereof, and if the dispute cannot be settled\nthrough negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the\nAmerican Arbitration Association under its Employment Mediation Rules before resorting to arbitration, litigation or\nsome other dispute resolution procedure.\nIN WITNESS, the parties have executed this Agreement in duplicate on the date and year first above written.\nDirector\n/s/Gregory E. McKenna\n/s/Ronald A. Bucchi\nName:___________________\nRonald A. Bucchi\nLightwave Logic, Inc.\nBy: /s/Thomas E. Zelibor\nName:___________________\nThomas E. Zelibor, CEO\n2\nAPPENDIX A\nForm of Indemnification Agreement\n[Incorporated by reference into the registrant’s Form 8-K filed on May 8, 2012]\nAPPENDIX B\nDirector’s Non-Disclosure Agreement\nSection 1.\nSection 2.\n2.1\nDIRECTOR’S NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT made as of June 11, 2012, by and between Lightwave Logic, Inc., located at 111 Ruthar\nDrive, Newark, DE 19711 (“Company”); and Ronald A. Bucchi (“Director”), whose address is 112 Spicewood Lane,\nKensington, CT 06037.\nWHEREAS, Company is a technology company focused on the development of a Next Generation Non-linear\nOptical Polymer Materials Platform for applications in high speed fiber-optic data communications and optical\ncomputing, which involves the development and utilization of information not generally known in the industry or\nindustries in which the Company is or may become engaged.\nWHEREAS, the Company desires to appoint the Director as a member of the Company’s Board of Directors and\nthe Director accepts such appointment;\nWHEREAS, in performing his services as a director for Company, Director will necessarily be given access to\n“secret information” (defined below), which will be identified by Company as such; and\nWHEREAS, the use of the secret information by, or its disclosure to, any person or organization other than\nCompany and its employees or Director would be highly detrimental and damaging to Company.\nNOW THEREFORE, with the foregoing recitals being incorporated herein by reference and deemed an\nessential part hereof and in consideration of the mutual promises, covenants and conditions contained herein, the parties\nagree as follows:\nSecret Information\nFor the purposes of this Agreement, “secret information” shall mean information relating to the Company’s\nmethods, concepts, ideas, products, and services which is of a proprietary or confidential nature, whether communicated\norally or in writing, data or sample form, including, without limitation, concepts, techniques, processes, designs, cost\ndata, computer programs, and other know-how that is disclosed to the Director by the Company.\nNondisclosure of Secret Information\nNon-disclosure. Director shall not, without the prior written consent of the Company, disclose such secret\ninformation to any third party, including any third party consultant(s). Further, Director shall only use the secret\ninformation pursuant to and for the purpose of performing his services as a director for Company. The parties\nacknowledge that irreparable injury and damage will result from disclosure of the secret information to unauthorized\nthird parties or from utilization of the secret information for any purpose other than the purposes described herein. Also,\nDirector shall take all reasonable steps to ensure that the secret information in the Director ’s possession remains\nconfidential.\n(a)\n(b)\n(c)\n(d)\n(e)\n2.2\n2.3\nSection 3.\nThe foregoing restrictions shall not be applicable to any information which:\nthe Director can show was previously known to him prior to receipt from the Company, without breach of\nan obligation of confidence to any third party;\nis now, or hereafter, comes into the public domain as, for example, by publications, including issued\nUnited States and foreign patents, or is otherwise legally known or available to the public through sources\nother than the Director;\nis subsequently legally disclosed to the Director by a third party not owing obligations of confidence to\nthe Company, or\nis, or will be, developed independently by the Director solely through his affiliates which have not been\nexposed directly or indirectly to the secret information, or\nthe Director is obligated to produce as a result of a court order or other valid and legally enforceable\nmandate, provided that the Company has been given notice thereof and an opportunity to waive its rights\nor to seek a protective order or other appropriate remedy.\nFor the purposes of this Section 2, disclosures which provide specific detailed information shall not be deemed to\nbe within the foregoing exceptions merely because they are embraced by more general disclosures in the public domain\nor in the Director ’s possession. In addition, any combination of features shall not be deemed to be within the foregoing\nexceptions merely because information about individual components are separately in the public domain or in the\nDirector’s possession, but only if the combination itself and its principle of operation are in the public domain or in the\nlawful possession of the Director without restriction on disclosure.\nReturn of documents. Upon termination of Director’s position as a member of the Company’s Board Of\nDirectors, Director agrees that all documents, records, notebooks and similar repositories of or containing\nsecret information, including copies of such materials, then in its possession, whether prepared by it or others,\nwill be returned to the Company.\nDirector acknowledges that the secret information belongs to Company, that Company claims the secret\ninformation comprises trade secrets, claims that the secret information is confidential to Company and that\neach of the obligations assumed by Director in this, and the other paragraphs contained herein, is a material\ninducement to disclose the secret information to Director.\nNo License Granted\nNothing herein shall be deemed to confer on the Director a license or other right to use the secret information\ndisclosed hereunder for any purpose other than the purposes expressly stated in this Agreement. Specifically and\nwithout limitation, Director shall have no license or right to use any secret information in developing any invention,\ndiscovery, know-how, trade secret, patent, trademark, or copyright.\nSection 4.\nSection 5.\nSection 6.\nEnforcement\nIn the event that the Director shall breach this Agreement, or in the event that such breach appears to be an\nimminent possibility, Company shall be entitled to all legal and equitable remedies afforded it by law as a result of the\nbreach (including an injunction restraining the party or parties about to commit any breach of this Agreement, or who\nhave committed a breach of it, without showing or proving any actual damage sustained by Company), and may, in\naddition to any and all other forms of relief, recover from Director all reasonable costs and attorneys' fees encountered\nby it in seeking any such remedy.\nBinding Effect\nThis Agreement shall be binding upon the parties to this Agreement and upon their respective executors,\nadministrators, legal representatives, successors and assigns.\nApplicable Law\nThis Agreement shall be governed for all purposes by the laws of the State of Delaware, with New Castle County\nas the agreed upon proper venue. The Company shall retain all rights and remedies afforded it under the patent,\ntrademark, copyright and other laws of the United States and the States thereof, and of other countries, including without\nlimitation any laws designed to protect proprietary or secret information.\nIn witness, the parties executed this Agreement on the date first shown above.\nWitness\nDirector\n/s/Gregory E. McKenna\n/s/Ronald A. Bucchi\nName:___________________\nRonald A. Bucchi\nCompany\nLightwave Logic, Inc.\nBy: /s/Thomas E. Zelibor\nName:___________________\nThomas E. Zelibor, CEO	EX-10 2 lwlg061412fm8k_ex10z1.htm EXHIBIT 10.1\nDIRECTOR AGREEMENT\nTHIS AGREEMENT made as of June 11, 2012, by and between Lightwave Logic, Inc., located at 121\nContinental Drive, Suite 110, Newark, DE 19713 (the “Company”); and Ronald A. Bucchi (“Director”).\nWHEREAS, the Company and the Director desire to enter into an agreement which will set forth the terms and\nconditions upon which the Director shall serve as a director on the Company’s Board of Directors.\nNOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties have agreed,\nand do hereby agree, as follows:\nSection 1: Appointment.\nThe Company’s Board of Directors appoints the Director as a member of the Company’s Board of Directors and\nthe Director accepts such appointment upon the terms and conditions set forth. The Director shall serve as a member of\nthe Company’s Board of Directors until his successor is appointed or elected and shall qualify. However, neither the\nCompany, nor any other person, shall be required to cause the continuation, election, or re-appointment of the Director as\na member of the Company’s Board of Directors.\nSection 2: Indemnification\nThe Director shall receive the full benefits, protection, and rights of full and complete indemnification from the\nCompany in connection with his position with the Company as a member of the Company’s Board of Directors to the\nfullest extent permitted by law. Further, the Director shall be named as an insured on the Company’s underwritten\nofficer and director liability insurance policy. The Director shall execute the Indemnification Agreement attached hereto\nas Appendix A, which is incorporated into this Agreement.\nSection 3: Compensation.\nPursuant to the Company’s 2007 Employee Stock Plan, the Director will receive an option to purchase up to Two\nHundred Thousand (200,000) shares of restricted common stock of the Company at the strike price of $.90 per share.\nThe options shall vest as follows: (i) fifty thousand (50,000) options shall vest immediately; and (ii) the remaining\noptions shall vest in three (3) equal annual installments of fifty thousand (50,000) options per year commencing on the\n1st day of each one year anniversary of execution of this Agreement. All of the options shall expire on June 10, 2017.\nSection 4: Duties/ Extent of Services.\nThe Director shall serve as a member of the Board of Directors of the Company, and shall assume the duties that\nthe Chairman of the Board may assign. Subject to Section 6 contained herein, nothing in this Agreement shall be con-\nstrued to limit the Director's freedom to\nengage in other businesses. It is agreed, however, that the Director will devote his best efforts to the needs of the\nCompany, and shall not allow his other business activities to materially interfere with his duties to the Company.\nSection 5: Expenses.\nSubject to prior approval of the Chairman of the Board of Directors, the Director is authorized to incur reasona-\nble expenses on behalf of the Company in performing his duties, including expenses for travel, transportation,\nentertainment, and similar items, which expenses shall be paid by the Company.\nSection 6: Director’s Non-Disclosure.\nThe Director shall execute the Director’s Non-disclosure Agreement attached hereto as Appendix B, which is\nincorporated into this Agreement.\nSection 7: Waiver of Breach.\nThe waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a\nwaiver of any subsequent breach.\nSection 8: Entire Agreement\nThis Agreement contains the entire agreement of the parties pertaining to the appointment of the Director to the\nCompany’s Board of Directors.\nSection 9: Amendment of Agreement\nNo change or modification of this Agreement shall be valid unless it is in writing and signed by the party against\nwhom the change or modification is sought to be enforced. No change or modification by the Company shall be effective\nunless it is approved by the Company’s Board of Directors and signed by an officer specifically authorized to sign such\ndocuments.\nSection 10: Severability of Provisions\nIf any provision of this Agreement, the Indemnification Agreement or the Director’s Non-disclosure Agreement\nis invalidated or held unenforceable, the invalidity or unenforceability of that provision or provisions shall not affect the\nvalidity or enforceability of any other provision of this Agreement, the Indemnification Agreement or the Director’s\nNon-disclosure Agreement.\nSection 11: Governing Law and Venue\nAll questions regarding the validity and interpretation of this Agreement shall be governed by and construed and\nenforced in all respects in accordance with the laws of the State of Delaware. The sole and proper venue shall be New\nCastle County, Delaware.\nSection 12: Arbitration of Disputes\nIf a dispute arises out of or relates to this Agreement, or the breach thereof, and if the dispute cannot be settled\nthrough negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the\nAmerican Arbitration Association under its Employment Mediation Rules before resorting to arbitration, litigation or\nsome other dispute resolution procedure.\nIN WITNESS, the parties have executed this Agreement in duplicate on the date and year first above written.\nDirector\n/s/Gregory E. McKenna /s/Ronald A. Bucchi\nName: Ronald A. Bucchi\nLightwave Logic, Inc.\nBy: /s/Thomas E. Zelibor\nName: Thomas E. Zelibor, CEO\nAPPENDIX A\nForm of Indemnification Agreement\n[Incorporated by reference into the registrant’s Form 8-K filed on May 8, 2012]\nAPPENDIX B\nDirector’s Non-Disclosure Agreement\nDIRECTOR’S NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT made as of June 11, 2012, by and between Lightwave Logic, Inc., located at 111 Ruthar\nDrive, Newark, DE 19711 (“Company”); and Ronald A. Bucchi (“Director”), whose address is 112 Spicewood Lane,\nKensington, CT 06037.\nWHEREAS, Company is a technology company focused on the development of a Next Generation Non-linear\nOptical Polymer Materials Platform for applications in high speed fiber-optic data communications and optical\ncomputing, which involves the development and utilization of information not generally known in the industry or\nindustries in which the Company is or may become engaged.\nWHEREAS, the Company desires to appoint the Director as a member of the Company’s Board of Directors and\nthe Director accepts such appointment;\nWHEREAS, in performing his services as a director for Company, Director will necessarily be given access to\n“secret information” (defined below), which will be identified by Company as such; and\nWHEREAS, the use of the secret information by, or its disclosure to, any person or organization other than\nCompany and its employees or Director would be highly detrimental and damaging to Company.\nNOW THEREFORE, with the foregoing recitals being incorporated herein by reference and deemed an\nessential part hereof and in consideration of the mutual promises, covenants and conditions contained herein, the parties\nagree as follows:\nSection 1. Secret Information\nFor the purposes of this Agreement, “secret information” shall mean information relating to the Company’s\nmethods, concepts, ideas, products, and services which is of a proprietary or confidential nature, whether communicated\norally or in writing, data or sample form, including, without limitation, concepts, techniques, processes, designs, cost\ndata, computer programs, and other know-how that is disclosed to the Director by the Company.\nSection 2. Nondisclosure of Secret Information\n2.1  Non-disclosure. Director shall not, without the prior written consent of the Company, disclose such secret\ninformation to any third party, including any third party consultant(s). Further, Director shall only use the secret\ninformation pursuant to and for the purpose of performing his services as a director for Company. The parties\nacknowledge that irreparable injury and damage will result from disclosure of the secret information to unauthorized\nthird parties or from utilization of the secret information for any purpose other than the purposes described herein. Also,\nDirector shall take all reasonable steps to ensure that the secret information in the Director’s possession remains\nconfidential.\nThe foregoing restrictions shall not be applicable to any information which:\n(@)  the Director can show was previously known to him prior to receipt from the Company, without breach of\nan obligation of confidence to any third party;\n(b) is now, or hereafter, comes into the public domain as, for example, by publications, including issued\nUnited States and foreign patents, or is otherwise legally known or available to the public through sources\nother than the Director;\n(c)  is subsequently legally disclosed to the Director by a third party not owing obligations of confidence to\nthe Company, or\n(d) is, or will be, developed independently by the Director solely through his affiliates which have not been\nexposed directly or indirectly to the secret information, or\n(e)  the Director is obligated to produce as a result of a court order or other valid and legally enforceable\nmandate, provided that the Company has been given notice thereof and an opportunity to waive its rights\nor to seek a protective order or other appropriate remedy.\nFor the purposes of this Section 2, disclosures which provide specific detailed information shall not be deemed to\nbe within the foregoing exceptions merely because they are embraced by more general disclosures in the public domain\nor in the Director’s possession. In addition, any combination of features shall not be deemed to be within the foregoing\nexceptions merely because information about individual components are separately in the public domain or in the\nDirector’s possession, but only if the combination itself and its principle of operation are in the public domain or in the\nlawful possession of the Director without restriction on disclosure.\n2.2 Return of documents. Upon termination of Director’s position as a member of the Company’s Board Of\nDirectors, Director agrees that all documents, records, notebooks and similar repositories of or containing\nsecret information, including copies of such materials, then in its possession, whether prepared by it or others,\nwill be returned to the Company.\n2.3Director acknowledges that the secret information belongs to Company, that Company claims the secret\ninformation comprises trade secrets, claims that the secret information is confidential to Company and that\neach of the obligations assumed by Director in this, and the other paragraphs contained herein, is a material\ninducement to disclose the secret information to Director.\nSection 3. No License Granted\nNothing herein shall be deemed to confer on the Director a license or other right to use the secret information\ndisclosed hereunder for any purpose other than the purposes expressly stated in this Agreement. Specifically and\nwithout limitation, Director shall have no license or right to use any secret information in developing any invention,\ndiscovery, know-how, trade secret, patent, trademark, or copyright.\nSection 4. Enforcement\nIn the event that the Director shall breach this Agreement, or in the event that such breach appears to be an\nimminent possibility, Company shall be entitled to all legal and equitable remedies afforded it by law as a result of the\nbreach (including an injunction restraining the party or parties about to commit any breach of this Agreement, or who\nhave committed a breach of it, without showing or proving any actual damage sustained by Company), and may, in\naddition to any and all other forms of relief, recover from Director all reasonable costs and attorneys' fees encountered\nby it in seeking any such remedy.\nSection 5.  Binding Effect\nThis Agreement shall be binding upon the parties to this Agreement and upon their respective executors,\nadministrators, legal representatives, successors and assigns.\nSection 6.  Applicable Law\nThis Agreement shall be governed for all purposes by the laws of the State of Delaware, with New Castle County\nas the agreed upon proper venue. The Company shall retain all rights and remedies afforded it under the patent,\ntrademark, copyright and other laws of the United States and the States thereof, and of other countries, including without\nlimitation any laws designed to protect proprietary or secret information.\nIn witness, the parties executed this Agreement on the date first shown above.\nWitness Director\n/s/Gregory E. McKenna /s/Ronald A. Bucchi\nName: Ronald A. Bucchi\nCompany\nLightwave Logic, Inc.\nBy: /s/Thomas E. Zelibor\nName: Thomas E. Zelibor, CEO	EX-10 lwlg061412fm8k_ex10z1.htm EXHIBIT 10.1\nDIRECTOR AGREEMENT\nTHIS AGREEMENT made as of June 11, 2012, by and between Lightwave Logic, Inc., located at 121\nContinental Drive, Suite 110, Newark, DE 19713 (the "Company"); and Ronald A. Bucchi ("Director").\nWHEREAS, the Company and the Director desire to enter into an agreement which will set forth the terms and\nconditions upon which the Director shall serve as a director on the Company's Board of Directors.\nNOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties have agreed,\nand do hereby agree, as follows:\nSection 1: Appointment.\nThe Company's Board of Directors appoints the Director as a member of the Company's Board of Directors and\nthe Director accepts such appointment upon the terms and conditions set forth. The Director shall serve as a member of\nthe Company's Board of Directors until his successor is appointed or elected and shall qualify. However, neither the\nCompany, nor any other person, shall be required to cause the continuation, election, or re-appointment of the Director as\na member of the Company's Board of Directors.\nSection 2: Indemnification\nThe Director shall receive the full benefits, protection, and rights of full and complete indemnification from the\nCompany in connection with his position with the Company as a member of the Company's Board of Directors to the\nfullest extent permitted by law. Further, the Director shall be named as an insured on the Company's underwritten\nofficer and director liability insurance policy. The Director shall execute the Indemnification Agreement attached hereto\nas Appendix A, which is incorporated into this Agreement.\nSection 3: Compensation.\nPursuant to the Company's 2007 Employee Stock Plan, the Director will receive an option to purchase up to Two\nHundred Thousand (200,000) shares of restricted common stock of the Company at the strike price of $.90 per share.\nThe options shall vest as follows: (i) fifty thousand (50,000) options shall vest immediately; and (ii) the remaining\noptions shall vest in three (3) equal annual installments of fifty thousand (50,000) options per year commencing on the\n1st day of each one year anniversary of execution of this Agreement. All of the options shall expire on June 10, 2017.\nSection 4: Duties/ Duties/Exten Extent of Services.\nThe Director shall serve as a member of the Board of Directors of the Company, and shall assume the duties that\nthe Chairman of the Board may assign. Subject to Section 6 contained herein, nothing in this Agreement shall be con-\nstrued to limit the Director's freedom to\nengage in other businesses. It is agreed, however, that the Director will devote his best efforts to the needs of the\nCompany, and shall not allow his other business activities to materially interfere with his duties to the Company.\nSection 5: Expenses.\nSubject to prior approval of the Chairman of the Board of Directors, the Director is authorized to incur reasona-\nble expenses on behalf of the Company in performing his duties, including expenses for travel, transportation,\nentertainment, and similar items, which expenses shall be paid by the Company.\nSection 6: Director's Non-Disclosure.\nThe Director shall execute the Director's Non-disclosure Agreement attached hereto as Appendix B, which is\nincorporated into this Agreement.\nSection 7: Waiver of Breach.\nThe waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a\nwaiver of any subsequent breach.\nSection 8: Entire Agreement\nThis Agreement contains the entire agreement of the parties pertaining to the appointment of the Director to the\nCompany's Board of Directors.\nSection 9: Amendment of Agreement\nNo change or modification of this Agreement shall be valid unless it is in writing and signed by the party against\nwhom the change or modification is sought to be enforced. No change or modification by the Company shall be effective\nunless it is approved by the Company's Board of Directors and signed by an officer specifically authorized to sign such\ndocuments.\nSection 10: Severability of Provisions\nIf any provision of this Agreement, the Indemnification Agreement or the Director's Non-disclosure Agreement\nis invalidated or held unenforceable, the invalidity or unenforceability of that provision or provisions shall not affect the\nvalidity or enforceability of any other provision of this Agreement, the Indemnification Agreement or the Director's\nNon-disclosure Agreement.\nSection 11: Governing Law and Venue\nAll questions regarding the validity and interpretation of this Agreement shall be governed by and construed and\nenforced in all respects in accordance with the laws of the State of Delaware. The sole and proper venue shall be New\nCastle County, Delaware.\nSection 12: Arbitration of Disputes\nIf\na dispute arises out of or relates to this Agreement, or the breach thereof, and if the dispute cannot be settled\nthrough negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the\nAmerican Arbitration Association under its Employment Mediation Rules before resorting to arbitration, litigation or\nsome other dispute resolution procedure.\nIN WITNESS, the parties have executed this Agreement in duplicate on the date and year first above written.\nDirector\n/s/Gregory E. McKenna\n/s/Ronald A. Bucchi\nName:\nRonald A. Bucchi\nLightwave Logic, Inc.\nBy: /s/Thomas E. Zelibor\nName:\nThomas E. Zelibor, CEO\n2\nAPPENDIX A\nForm of Indemnification Agreement\n[Incorporated by reference into the registrant's Form 8-K filed on May 8, 2012]\nAPPENDIX B\nDirector's on-Disclosure Agreement\nDIRECTOR'S NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT made as of June 11, 2012, by and between Lightwave Logic, Inc., located at 111 Ruthar\nDrive, Newark, DE 19711 ("Company"); and Ronald A. Bucchi ("Director"), whose address is 112 Spicewood Lane,\nKensington, CT 06037.\nWHEREAS, Company is a technology company focused on the development of a Next Generation Non-linear\nOptical Polymer Materials Platform for applications in high speed fiber-optic data communications and optical\ncomputing, which involves the development and utilization of information not generally known in the industry or\nindustries in which the Company is or may become engaged.\nWHEREAS, the Company desires to appoint the Director as a member of the Company's Board of Directors and\nthe Director accepts such appointment;\nWHEREAS, in performing his services as a director for Company, Director will necessarily be given access to\n"secret information" (defined below), which will be identified by Company as such; and\nWHEREAS, the use of the secret information by, or its disclosure to, any person or organization other than\nCompany and its employees or Director would be highly detrimental and damaging to Company.\nNOW THEREFORE, with the foregoing recitals being incorporated herein by reference and deemed an\nessential part hereof and in consideration of the mutual promises, covenants and conditions contained herein, the parties\nagree as follows:\nSection 1.\nSecret Information\nFor the purposes of this Agreement, "secret information" shall mean information relating to the Company's\nmethods, concepts, ideas, products, and services which is of a proprietary or confidential nature, whether communicated\norally or in writing, data or sample form, including, without limitation, concepts, techniques, processes, designs, cost\ndata, computer programs, and other know-how that is disclosed to the Director by the Company.\nSection 2.\nNondisclosure of Secret Information\n2.1 Non-disclosure. Director shall not, without the prior written consent of the Company, disclose such secret\ninformation\nto\nany\nthird\nparty,\nincluding\nany\nthird\nparty\nconsultant(s).\nFurther,\nDirector\nshall\nonly\nuse\nthe\nsecret\ninformation pursuant to and for the purpose of performing his services as a director for Company. The parties\nacknowledge that irreparable injury and damage will result from disclosure of the secret information to unauthorized\nthird parties or from utilization of the secret information for any purpose other than the purposes described herein. Also,\nDirector shall take all reasonable steps to ensure that the secret information in the Director's possession remains\nconfidential.\nThe foregoing restrictions shall not be applicable to any information which:\n(a)\nthe Director can show was previously known to him prior to receipt from the Company, without breach of\nan obligation of confidence to any third party;\n(b)\nis now, or hereafter, comes into the public domain as, for example, by publications, including issued\nUnited States and foreign patents, or is otherwise legally known or available to the public through sources\nother than the Director;\n(c)\nis subsequently legally disclosed to the Director by a third party not owing obligations of confidence to\nthe Company, or\n(d)\nis, or will be, developed independently by the Director solely through his affiliates which have not been\nexposed directly or indirectly to the secret information, or\n(e)\nthe Director is obligated to produce as a result of a court order or other valid and legally enforceable\nmandate, provided that the Company has been given notice thereof and an opportunity to waive its rights\nor to seek a protective order or other appropriate remedy.\nFor the purposes of this Section 2, disclosures which provide specific detailed information shall not be deemed to\nbe\nwithin the foregoing exceptions merely because they are embraced by more general disclosures in the public domain\nor in the Director's possession. In addition, any combination of features shall not be deemed to be within the foregoing\nexceptions merely because information about individual components are separately in the public domain or in the\nDirector's possession, but only if the combination itself and its principle of operation are in the public domain or in the\nlawful possession of the Director without restriction on disclosure.\n2.2 Return of documents. Upon termination of Director's position as a member of the Company's Board Of\nDirectors, Director agrees that all documents, records, notebooks and similar repositories of or containing\nsecret information, including copies of such materials, then in its possession, whether prepared by it or others,\nwill be returned to the Company.\n2.3 Director acknowledges that the secret information belongs to Company, that Company claims the secret\ninformation comprises trade secrets, claims that the secret information is confidential to Company and that\neach of the obligations assumed by Director in this, and the other paragraphs contained herein, is a material\ninducement to disclose the secret information to Director.\nSection 3.\nNo License Granted\nNothing herein shall be deemed to confer on the Director a license or other right to use the secret information\ndisclosed hereunder for any purpose other than the purposes expressly stated in this Agreement. Specifically and\nwithout limitation, Director shall have no license or right to use any secret information in developing any invention,\ndiscovery, know-how, trade secret, patent, trademark, or copyright.\nSection 4. Enforcement\nIn the event that the Director shall breach this Agreement, or in the event that such breach appears to be an\nimminent possibility, Company shall be entitled to all legal and equitable remedies afforded it by law as a result of the\nbreach (including an injunction restraining the party or parties about to commit any breach of this Agreement, or who\nhave committed a breach of it, without showing or proving any actual damage sustained by Company), and may, in\naddition to any and all other forms of relief, recover from Director all reasonable costs and attorneys' fees encountered\nby it in seeking any such remedy.\nSection 5.\nBinding Effect\nThis Agreement shall be binding upon the parties to this Agreement and upon their respective executors,\nadministrators, legal representatives, successors and assigns.\nSection 6.\nApplicable Law\nThis Agreement shall be governed for all purposes by the laws of the State of Delaware, with New Castle County\nas the agreed upon proper venue. The Company shall retain all rights and remedies afforded it under the patent,\ntrademark, copyright and other laws of the United States and the States thereof, and of other countries, including without\nlimitation any laws designed to protect proprietary or secret information.\nIn witness, the parties executed this Agreement on the date first shown above.\nWitness\nDirector\n/s/Gregory E. McKenna\n/s/Ronald A. Bucchi\nName:_\nName:\nRonald A. Bucchi\nCompany\nLightwave Logic, Inc.\nBy: /s/Thomas E. Zelibor\nName:_ Name:\nThomas E. Zelibor, CEO	EX-10 2 lwlg061412fm8k_ex10z1.htm EXHIBIT 10.1\nDIRECTOR AGREEMENT\nTHIS AGREEMENT made as of June 11, 2012, by and between Lightwave Logic, Inc., located at 121\nContinental Drive, Suite 110, Newark, DE 19713 (the “Company”); and Ronald A. Bucchi (“Director”).\nWHEREAS, the Company and the Director desire to enter into an agreement which will set forth the terms and\nconditions upon which the Director shall serve as a director on the Company’s Board of Directors.\nNOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties have agreed,\nand do hereby agree, as follows:\nSection 1: Appointment.\nThe Company’s Board of Directors appoints the Director as a member of the Company’s Board of Directors and\nthe Director accepts such appointment upon the terms and conditions set forth. The Director shall serve as a member of\nthe Company’s Board of Directors until his successor is appointed or elected and shall qualify. However, neither the\nCompany, nor any other person, shall be required to cause the continuation, election, or re-appointment of the Director as\na member of the Company’s Board of Directors.\nSection 2: Indemnification\nThe Director shall receive the full benefits, protection, and rights of full and complete indemnification from the\nCompany in connection with his position with the Company as a member of the Company’s Board of Directors to the\nfullest extent permitted by law. Further, the Director shall be named as an insured on the Company’s underwritten\nofficer and director liability insurance policy. The Director shall execute the Indemnification Agreement attached hereto\nas Appendix A, which is incorporated into this Agreement.\nSection 3: Compensation.\nPursuant to the Company’s 2007 Employee Stock Plan, the Director will receive an option to purchase up to Two\nHundred Thousand (200,000) shares of restricted common stock of the Company at the strike price of $.90 per share.\nThe options shall vest as follows: (i) fifty thousand (50,000) options shall vest immediately; and (ii) the remaining\noptions shall vest in three (3) equal annual installments of fifty thousand (50,000) options per year commencing on the\n1st day of each one year anniversary of execution of this Agreement. All of the options shall expire on June 10, 2017.\nSection 4: Duties/ Extent of Services.\nThe Director shall serve as a member of the Board of Directors of the Company, and shall assume the duties that\nthe Chairman of the Board may assign. Subject to Section 6 contained herein, nothing in this Agreement shall be con-\nstrued to limit the Director's freedom to\nengage in other businesses. It is agreed, however, that the Director will devote his best efforts to the needs of the\nCompany, and shall not allow his other business activities to materially interfere with his duties to the Company.\nSection 5: Expenses.\nSubject to prior approval of the Chairman of the Board of Directors, the Director is authorized to incur reasona-\nble expenses on behalf of the Company in performing his duties, including expenses for travel, transportation,\nentertainment, and similar items, which expenses shall be paid by the Company.\nSection 6: Director’s Non-Disclosure.\nThe Director shall execute the Director’s Non-disclosure Agreement attached hereto as Appendix B, which is\nincorporated into this Agreement.\nSection 7: Waiver of Breach.\nThe waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a\nwaiver of any subsequent breach.\nSection 8: Entire Agreement\nThis Agreement contains the entire agreement of the parties pertaining to the appointment of the Director to the\nCompany’s Board of Directors.\nSection 9: Amendment of Agreement\nNo change or modification of this Agreement shall be valid unless it is in writing and signed by the party against\nwhom the change or modification is sought to be enforced. No change or modification by the Company shall be effective\nunless it is approved by the Company’s Board of Directors and signed by an officer specifically authorized to sign such\ndocuments.\nSection 10: Severability of Provisions\nIf any provision of this Agreement, the Indemnification Agreement or the Director’s Non-disclosure Agreement\nis invalidated or held unenforceable, the invalidity or unenforceability of that provision or provisions shall not affect the\nvalidity or enforceability of any other provision of this Agreement, the Indemnification Agreement or the Director ’s\nNon-disclosure Agreement.\nSection 11: Governing Law and Venue\nAll questions regarding the validity and interpretation of this Agreement shall be governed by and construed and\nenforced in all respects in accordance with the laws of the State of Delaware. The sole and proper venue shall be New\nCastle County, Delaware.\nSection 12: Arbitration of Disputes\nIf a dispute arises out of or relates to this Agreement, or the breach thereof, and if the dispute cannot be settled\nthrough negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the\nAmerican Arbitration Association under its Employment Mediation Rules before resorting to arbitration, litigation or\nsome other dispute resolution procedure.\nIN WITNESS, the parties have executed this Agreement in duplicate on the date and year first above written.\nDirector\n/s/Gregory E. McKenna\n/s/Ronald A. Bucchi\nName:___________________\nRonald A. Bucchi\nLightwave Logic, Inc.\nBy: /s/Thomas E. Zelibor\nName:___________________\nThomas E. Zelibor, CEO\n2\nAPPENDIX A\nForm of Indemnification Agreement\n[Incorporated by reference into the registrant’s Form 8-K filed on May 8, 2012]\nAPPENDIX B\nDirector’s Non-Disclosure Agreement\nSection 1.\nSection 2.\n2.1\nDIRECTOR’S NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT made as of June 11, 2012, by and between Lightwave Logic, Inc., located at 111 Ruthar\nDrive, Newark, DE 19711 (“Company”); and Ronald A. Bucchi (“Director”), whose address is 112 Spicewood Lane,\nKensington, CT 06037.\nWHEREAS, Company is a technology company focused on the development of a Next Generation Non-linear\nOptical Polymer Materials Platform for applications in high speed fiber-optic data communications and optical\ncomputing, which involves the development and utilization of information not generally known in the industry or\nindustries in which the Company is or may become engaged.\nWHEREAS, the Company desires to appoint the Director as a member of the Company’s Board of Directors and\nthe Director accepts such appointment;\nWHEREAS, in performing his services as a director for Company, Director will necessarily be given access to\n“secret information” (defined below), which will be identified by Company as such; and\nWHEREAS, the use of the secret information by, or its disclosure to, any person or organization other than\nCompany and its employees or Director would be highly detrimental and damaging to Company.\nNOW THEREFORE, with the foregoing recitals being incorporated herein by reference and deemed an\nessential part hereof and in consideration of the mutual promises, covenants and conditions contained herein, the parties\nagree as follows:\nSecret Information\nFor the purposes of this Agreement, “secret information” shall mean information relating to the Company’s\nmethods, concepts, ideas, products, and services which is of a proprietary or confidential nature, whether communicated\norally or in writing, data or sample form, including, without limitation, concepts, techniques, processes, designs, cost\ndata, computer programs, and other know-how that is disclosed to the Director by the Company.\nNondisclosure of Secret Information\nNon-disclosure. Director shall not, without the prior written consent of the Company, disclose such secret\ninformation to any third party, including any third party consultant(s). Further, Director shall only use the secret\ninformation pursuant to and for the purpose of performing his services as a director for Company. The parties\nacknowledge that irreparable injury and damage will result from disclosure of the secret information to unauthorized\nthird parties or from utilization of the secret information for any purpose other than the purposes described herein. Also,\nDirector shall take all reasonable steps to ensure that the secret information in the Director ’s possession remains\nconfidential.\n(a)\n(b)\n(c)\n(d)\n(e)\n2.2\n2.3\nSection 3.\nThe foregoing restrictions shall not be applicable to any information which:\nthe Director can show was previously known to him prior to receipt from the Company, without breach of\nan obligation of confidence to any third party;\nis now, or hereafter, comes into the public domain as, for example, by publications, including issued\nUnited States and foreign patents, or is otherwise legally known or available to the public through sources\nother than the Director;\nis subsequently legally disclosed to the Director by a third party not owing obligations of confidence to\nthe Company, or\nis, or will be, developed independently by the Director solely through his affiliates which have not been\nexposed directly or indirectly to the secret information, or\nthe Director is obligated to produce as a result of a court order or other valid and legally enforceable\nmandate, provided that the Company has been given notice thereof and an opportunity to waive its rights\nor to seek a protective order or other appropriate remedy.\nFor the purposes of this Section 2, disclosures which provide specific detailed information shall not be deemed to\nbe within the foregoing exceptions merely because they are embraced by more general disclosures in the public domain\nor in the Director ’s possession. In addition, any combination of features shall not be deemed to be within the foregoing\nexceptions merely because information about individual components are separately in the public domain or in the\nDirector’s possession, but only if the combination itself and its principle of operation are in the public domain or in the\nlawful possession of the Director without restriction on disclosure.\nReturn of documents. Upon termination of Director’s position as a member of the Company’s Board Of\nDirectors, Director agrees that all documents, records, notebooks and similar repositories of or containing\nsecret information, including copies of such materials, then in its possession, whether prepared by it or others,\nwill be returned to the Company.\nDirector acknowledges that the secret information belongs to Company, that Company claims the secret\ninformation comprises trade secrets, claims that the secret information is confidential to Company and that\neach of the obligations assumed by Director in this, and the other paragraphs contained herein, is a material\ninducement to disclose the secret information to Director.\nNo License Granted\nNothing herein shall be deemed to confer on the Director a license or other right to use the secret information\ndisclosed hereunder for any purpose other than the purposes expressly stated in this Agreement. Specifically and\nwithout limitation, Director shall have no license or right to use any secret information in developing any invention,\ndiscovery, know-how, trade secret, patent, trademark, or copyright.\nSection 4.\nSection 5.\nSection 6.\nEnforcement\nIn the event that the Director shall breach this Agreement, or in the event that such breach appears to be an\nimminent possibility, Company shall be entitled to all legal and equitable remedies afforded it by law as a result of the\nbreach (including an injunction restraining the party or parties about to commit any breach of this Agreement, or who\nhave committed a breach of it, without showing or proving any actual damage sustained by Company), and may, in\naddition to any and all other forms of relief, recover from Director all reasonable costs and attorneys' fees encountered\nby it in seeking any such remedy.\nBinding Effect\nThis Agreement shall be binding upon the parties to this Agreement and upon their respective executors,\nadministrators, legal representatives, successors and assigns.\nApplicable Law\nThis Agreement shall be governed for all purposes by the laws of the State of Delaware, with New Castle County\nas the agreed upon proper venue. The Company shall retain all rights and remedies afforded it under the patent,\ntrademark, copyright and other laws of the United States and the States thereof, and of other countries, including without\nlimitation any laws designed to protect proprietary or secret information.\nIn witness, the parties executed this Agreement on the date first shown above.\nWitness\nDirector\n/s/Gregory E. McKenna\n/s/Ronald A. Bucchi\nName:___________________\nRonald A. Bucchi\nCompany\nLightwave Logic, Inc.\nBy: /s/Thomas E. Zelibor\nName:___________________\nThomas E. Zelibor, CEO
+ab46a92eef527dbae20fc09b2741c804.pdf	effective_date jurisdiction party term	EX-99.(E)(10) 8 dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(10)\nCONFIDENTIALITY AGREEMENT\nCONFIDENTIALITY AGREEMENT (this “Agreement”), dated as of March 4, 2007, by and between Webex Communications, Inc., a\nDelaware corporation (including its subsidiaries, the “Company”), and Cisco Systems, Inc., a California corporation (including its subsidiaries,\n“Cisco”).\nWHEREAS, Cisco and the Company are engaging in discussions about a possible transaction between them (the “Transaction”) and in\nconnection with evaluating the Transaction, each party (the “Disclosing Party”) may disclose to the other party (the “Receiving Party”) certain\ninformation relating to the Disclosing Party which is non-public, confidential or proprietary in nature;\nNOW, THEREFORE, the parties hereby agree as follows:\n1. Confidentiality of Information. The Receiving Party and its Representatives (as such term is defined below) (i) will keep the Information (as\nsuch term is defined below) strictly confidential and will not (except as required by applicable law or stock exchange requirement, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the Disclosing Party’s prior written consent, disclose to any person (as such\nterm is defined below) any Information, and (ii) will not use any Information in any manner (whether for itself, any other person or otherwise) other\nthan solely in connection with its consideration of the Transaction. The Receiving Party further agrees to disclose the Information only to its\nRepresentatives who need to know the Information solely for the purpose of evaluating the Transaction, and who are informed by the Receiving\nParty of the confidential nature of the Information and agree to act in accordance with the terms of this Agreement. In addition, the Receiving Party\nand its Representatives shall take all reasonable actions and precautions to prevent the disclosure, use, copying, duplicating or reproducing of any\nInformation, as well as any information the disclosure of which is limited by the provisions of paragraph 2 below in any manner contrary to the\nprovisions of this Agreement. The term “Information” shall mean, with respect to the Disclosing Party in question, all confidential, proprietary or\nnon-public information (whether furnished before or after the date hereof and whether written, oral, electronic or otherwise) furnished by the\nDisclosing Party or its Representatives to the Receiving Party or its Representatives in connection with the Receiving Party’s evaluation of the\nTransaction. The term “Information” will not, however, include information which (i) is or becomes publicly available other than as a result of a\ndisclosure by the Receiving Party or its Representatives in violation of this Agreement, (ii) is or becomes available to the Receiving Party or any of\nits Representatives on a nonconfidential basis from a source (other than the Disclosing Party or any of its Representatives) which, to the Receiving\nParty’s knowledge is not prohibited from disclosing such information to the Receiving Party, (iii) is known to the Receiving Party or any of its\nRepresentatives prior to disclosure by the Disclosing Party or any of its Representatives, or (iv) is or has been independently developed by the\nReceiving Party without use of any information furnished to it by the Disclosing Party. The term “person” shall mean any natural person,\ncorporation, general partnership, limited partnership, limited liability company, proprietorship, other business organization, trust, union or\nassociation or any court, tribunal, arbitrator, authority, agency, commission, official or other instrumentality of any country or any domestic or\nforeign state, county, city or other political subdivision. The terms of confidentiality under this Agreement shall not be construed to limit either\nparty’s right to independently develop or acquire products without use of, or reference to, the other party’s Information. The Disclosing Party\nacknowledges that the Receiving Party may currently or in the future be developing information internally, or receiving information from other\npersons, that is similar to any Information. Accordingly, nothing in this Agreement shall be construed as a representation or agreement that the\nReceiving Party will not develop, or have developed for it, products, concepts, systems, or techniques that are similar to or compete with the\nConfidentiality Agreement\nPage 2\nproducts, concepts, systems or techniques contemplated by or embodied in any Information, provided that the Receiving Party does not violate any\nof its obligations under this Agreement in connection with such development. Further, each party hereto shall be free to use for any purpose any\ninformation in non-tangible form which may be retained in the unaided memories of persons who have had access to Information, including without\nlimitation ideas, concepts, know-how or techniques contained therein resulting from access to or work with any such Information, provided that such\nparty shall maintain the confidentiality of all such Information as provided herein. Neither party hereto shall have any obligation to limit or restrict\nthe assignment of such persons or to pay royalties for any work resulting from the use of any such information. Nothing in this paragraph 1 shall be\ndeemed to grant either party a license under or to any of the other party’s intellectual property rights. The term “Representative” shall mean, with\nrespect to the party in question, any of such party’s directors, officers, employees, affiliates (such term, as defined in the Securities Exchange Act of\n1934, as amended), representatives (including, without limitation, financial advisors, attorneys and accountants) and agents.\n2. Confidentiality of Transaction and Transaction Status. Without the prior written consent of the other party, neither Cisco nor the Company\nnor any of their respective Representatives will (except as set forth in the proviso below or as required by applicable law or stock exchange\nrequirement, regulation or legal process, and only after compliance with paragraph 3 below) disclose to any person any information regarding a\npossible Transaction or any information relating in any way to the Information, including, without limitation (i) that any investigations, discussions\nor negotiations are taking or have taken place concerning a possible Transaction, including the status thereof or the termination of such discussions\nor negotiations, (ii) any of the terms, conditions or other facts with respect to any such possible Transaction or its consideration of a possible\nTransaction, or (iii) that this Agreement exists, that Information exists or has been requested or made available or any opinion or view with respect to\nthe Transaction or the Information; provided, however, that the Company may disclose the existence of this Agreement and provide a copy thereof to\nthe counterparty (and such counterparty’s representatives) to an agreement relating to a Significant Event if such disclosure and provision is required\nby the terms of such agreement.\n3. Mandatory Requests from Governmental Agencies for Information. In the event that the Receiving Party or any of its Representatives are\nrequested or required by any government or governmental agency or authority (by oral questions, interrogatories, requests for information or\ndocuments, subpoena, civil investigative demand, any informal or formal investigation by any government or governmental agency or authority or\notherwise) to disclose any of the Information or any information the disclosure of which is limited by the provisions of paragraph 2 above\n(collectively, the “Compelled Information”), the Receiving Party will notify the Disclosing Party promptly in writing so that the Disclosing Party\nmay seek a protective order or other appropriate remedy or, in the Disclosing Party’s sole discretion, waive compliance with the terms of this\nAgreement. The Receiving Party and its Representatives agree not to oppose any action by the Disclosing Party to obtain a protective order or other\nappropriate remedy and shall cooperate fully with the Disclosing Party in connection therewith. In the event that no such protective order or other\nremedy is obtained, or that the Disclosing Party waives compliance with the terms of this Agreement or, in the absence of such protective order,\nother remedy or the waiver by the Disclosing Party and where the Receiving Party or its Representatives have been advised by counsel that is legally\ncompelled to disclose the Compelled Information, the Receiving Party and its Representatives will furnish only that portion of the Compelled\nInformation which the Receiving Party is advised by counsel is legally required and will exercise its reasonable efforts to obtain reliable assurance\nthat confidential treatment will be accorded such Compelled Information.\nConfidentiality Agreement\nPage 3\n4. Return of Information. At any time at the Disclosing Party’s written request, the Receiving Party and its Representatives agree to return\npromptly all Information to the Disclosing Party, and no copies, extracts or other reproductions of the Information shall be retained by the Receiving\nParty or its Representatives; provided, that any analyses, compilations, forecasts, studies, summaries, notes, data or other documents or materials\nprepared by the Receiving Party or its Representatives, in lieu of being returned to the Disclosing Party, may be destroyed by the Receiving Party\n(except to the extent such destruction is prohibited).\n5. No Obligation to Consummate Transaction. Each party hereto acknowledges and agrees that the other party has made no decision to pursue\nany Transaction and agrees that the other party will have the right in its sole discretion, without giving any reason therefor, at any time to terminate\ndiscussions concerning a possible Transaction or to elect not to pursue any such Transaction. In addition, each party hereto agrees that, except for the\nmatters specifically agreed to herein or in written agreements subsequently entered into between the parties, no contract or agreement providing for\nany Transaction involving the other party or any of its Representatives shall be deemed to exist, and the other party shall not be under any legal\nobligation of any kind whatsoever with respect to any such Transaction by virtue of this or any other written or oral expression with respect to such a\nTransaction by any of its Representatives, unless and until a definitive acquisition agreement or in written agreements subsequently entered into\nbetween the parties, if any, with respect to such Transaction has been executed and delivered by each such party.\n6. No Representations as to the Accuracy of the Information. The Receiving Party and its Representatives acknowledge that neither the\nDisclosing Party nor any of its Representatives makes any express or implied representation or warranty as to the accuracy or completeness of the\nInformation. The Receiving Party and its Representatives agree that they will be entitled to rely solely on such representations and warranties as may\nbe included in definitive agreements (if any) with respect to the Transaction, subject to such limitations and restrictions as may be contained therein.\n7. Standstill. Cisco agrees that, for a period commencing on the date hereof and ending on the earlier of (i) the date that is twelve (12) months\nfollowing the date of this Agreement or (ii) the occurrence of a Significant Event (as such terms is defined below), neither it nor any of its controlled\nsubsidiaries will, without the prior written consent of the Company: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by\npurchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the Company; (ii) make, or participate in,\ndirectly or indirectly, any “solicitation” of “proxies” (as such terms are defined under the rules of the Securities and Exchange Commission) to vote,\nor seek to advise or influence any person with respect to the voting of, any voting securities of the Company; (iii) make any public announcement\nwith respect to any acquisition transaction involving the Company or its securities, or submit to the Company a proposal for any acquisition\ntransaction involving the Company or its securities in a manner reasonably likely to require the Company to make a public announcement with\nrespect to such proposal; (iv) form, join or participate in any “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended) in connection with any of the foregoing, or (v) instigate, encourage or assist any third party to do any of the foregoing. For purposes of\nthis letter agreement, “Significant Event” shall mean the entry by the Company into a definitive agreement providing for (x) any acquisition or\npurchase from the Company by any person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) of 50% or more of the then\noutstanding voting securities of the Company, (y) any merger, tender offer, consolidation, business combination or similar transaction involving the\nCompany pursuant to which the stockholders of the Company immediately\nConfidentiality Agreement\nPage 4\npreceding such transaction hold less than 50% of the outstanding voting securities of the surviving or resulting entity of such transaction and hold\nless than 50% of the outstanding voting securities of any entity that controls such surviving or resulting entity; or (z) any sale, lease or exchange of\nall or substantially all of the assets of the Company and its subsidiaries, taken as a whole.\n8. Securities Law Restrictions. Each party represents that it is aware, and agrees that it will advise its Representatives who are informed of the\nmatters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by\nany person who has received material, non-public information from the issuer of such securities and on the communication of such information to\nany other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such\ninformation.\n9. Non-Solicitation of Employees. Each Party hereto agrees that, without the prior written consent of the other Party, those of such first Party’s\nSpecified Employees (as such term is defined below) who have been directly involved in the evaluation of the Transaction will not, for a period of\ntwelve (12) months from the date hereof, directly solicit for employment with such Party or any of its subsidiaries any Specified Employee of the\nother Party; provided that the foregoing shall not preclude either Party from making any general solicitation for employees (through the engagement\nof search firms, public advertising or otherwise) not directed at the Specified Employees of the other Party or from hiring any person who responds\nto such a general solicitation. For purposes of this letter agreement, a “Specified Employee” of a Party means any senior executive (Vice President\nlevel or above) who is employed by such Party as of the date hereof or at any time hereafter and with respect to whom a Specified Employee of the\nother Party has learned the identity of such person either as a result of having had access to any Information in connection with the Transaction or\nhas first met such person in connection with the evaluation of the Transaction.\n10. Miscellaneous.\n(a) Injunctive Relief. It is agreed that the Disclosing Party would be irreparably injured by a breach of this Agreement by the Receiving\nParty or any of its Representatives, that monetary remedies would be inadequate to protect the Disclosing Party against any actual or\nthreatened breach of this Agreement by the Receiving Party or any of its Representatives, and, without prejudice to any other rights and\nremedies otherwise available to the Disclosing Party, the Receiving Party, on behalf of itself and its Representatives, agrees to the granting of\nequitable relief, including injunctive relief and specific performance, in favor of the Disclosing Party without proof of actual damages and\nwithout any need to secure or post any bond in connection therewith.\n(b) Severability. If any provision of this Agreement shall, for any reason, be adjudged by any court of competent jurisdiction to be\ninvalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder of this Agreement but shall be confined in its\noperation to the provision of this Agreement directly involved in the controversy in which such judgment shall have been rendered.\n(c) Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their\nrespective successors and assigns.\nConfidentiality Agreement\nPage 5\n(d) Modifications to Agreement; Waivers. No modifications of or changes to this Agreement or waiver of the terms and conditions hereof\nwill be binding upon the Company or Cisco, unless approved in writing and signed by both the Company and Cisco. It is further agreed that no\nfailure or delay in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n(e) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without\nregard to the principles of conflict of laws thereof. Each party (a) consents to submit itself to the personal jurisdiction of any federal court\nlocated in the State of Delaware or any Delaware state court in the event of any dispute of any kind or nature with respect to or arising out of\nthis Agreement, (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from such\ncourt, and (c) agrees that it will not bring any action with respect to or arising out of this Agreement in any court other than a federal court\nsitting in the State of Delaware or a Delaware state court.\n(f) Termination. Each party’s obligations hereunder with respect to Information shall terminate on the second anniversary of the date of\nthis Agreement; provided that all matters related thereto in respect of which a claim has been made or an action or proceeding has been\ninstituted on or prior to such date shall survive the expiration of such period until such claim, action or proceeding is finally resolved.\n(g) Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the\nsubject matter of this Agreement and supersedes all prior agreements with respect thereto.\n(h) Notices. All notices hereunder shall be in writing and shall be deemed to have been duly given when delivered by messenger or by\novernight courier service (with confirmation of receipt) or by facsimile (upon confirmation of receipt), in each case as follows:\n(1) if to the Company:\nWebex Communications, Inc.\nc/o Pillsbury Winthrop Shaw Pittman LLP\n2475 Hanover Street\nPalo Alto, California 94304-1114\nFacsimile: (650) 233-4545\nAttn: Jorge A. del Calvo, Esq.\n(2) if to Cisco:\nCisco Systems, Inc.\n170 West Tasman Drive\nSan Jose, California 95134-1706\nFacsimile: (408) 525-4757\nAttn: General Counsel\nConfidentiality Agreement\nPage 6\n(i) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument.\n[The remainder of this page is intentionally left blank.]\nConfidentiality Agreement\nPage 7\nIN WITNESS WHEREOF, the parties hereto have caused this Confidentiality Agreement to be executed and delivered as of the date first\nwritten above.\nWEBEX COMMUNICATIONS, INC.\nBy: /s/ David Farrington\nName: David Farrington\nTitle: Vice President, General Counsel\nCISCO SYSTEMS, INC.\nBy: /s/ Mark T. Gorman\nName: Mark T. Gorman\nTitle: Director, Mergers & Acquisitions	EX-99.(E)(10) 8 dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(10)\nCONFIDENTIALITY AGREEMENT\nCONFIDENTIALITY AGREEMENT (this “Agreement”), dated as of March 4, 2007, by and between Webex Communications, Inc., a\nDelaware corporation (including its subsidiaries, the “Company”), and Cisco Systems, Inc., a California corporation (including its subsidiaries,\n“Cisco”).\nWHEREAS, Cisco and the Company are engaging in discussions about a possible transaction between them (the “Transaction™) and in\nconnection with evaluating the Transaction, each party (the “Disclosing Party”) may disclose to the other party (the “Receiving Party”) certain\ninformation relating to the Disclosing Party which is non-public, confidential or proprietary in nature;\nNOW, THEREFORE, the parties hereby agree as follows:\n1. Confidentiality of Information. The Receiving Party and its Representatives (as such term is defined below) (i) will keep the Information (as\nsuch term is defined below) strictly confidential and will not (except as required by applicable law or stock exchange requirement, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the Disclosing Party’s prior written consent, disclose to any person (as such\nterm is defined below) any Information, and (ii) will not use any Information in any manner (whether for itself, any other person or otherwise) other\nthan solely in connection with its consideration of the Transaction. The Receiving Party further agrees to disclose the Information only to its\nRepresentatives who need to know the Information solely for the purpose of evaluating the Transaction, and who are informed by the Receiving\nParty of the confidential nature of the Information and agree to act in accordance with the terms of this Agreement. In addition, the Receiving Party\nand its Representatives shall take all reasonable actions and precautions to prevent the disclosure, use, copying, duplicating or reproducing of any\nInformation, as well as any information the disclosure of which is limited by the provisions of paragraph 2 below in any manner contrary to the\nprovisions of this Agreement. The term “Information” shall mean, with respect to the Disclosing Party in question, all confidential, proprietary or\nnon-public information (whether furnished before or after the date hereof and whether written, oral, electronic or otherwise) furnished by the\nDisclosing Party or its Representatives to the Receiving Party or its Representatives in connection with the Receiving Party’s evaluation of the\nTransaction. The term “Information” will not, however, include information which (i) is or becomes publicly available other than as a result of a\ndisclosure by the Receiving Party or its Representatives in violation of this Agreement, (ii) is or becomes available to the Receiving Party or any of\nits Representatives on a nonconfidential basis from a source (other than the Disclosing Party or any of its Representatives) which, to the Receiving\nParty’s knowledge is not prohibited from disclosing such information to the Receiving Party, (iii) is known to the Receiving Party or any of its\nRepresentatives prior to disclosure by the Disclosing Party or any of its Representatives, or (iv) is or has been independently developed by the\nReceiving Party without use of any information furnished to it by the Disclosing Party. The term “person” shall mean any natural person,\ncorporation, general partnership, limited partnership, limited liability company, proprietorship, other business organization, trust, union or\nassociation or any court, tribunal, arbitrator, authority, agency, commission, official or other instrumentality of any country or any domestic or\nforeign state, county, city or other political subdivision. The terms of confidentiality under this Agreement shall not be construed to limit either\nparty’s right to independently develop or acquire products without use of, or reference to, the other party’s Information. The Disclosing Party\nacknowledges that the Receiving Party may currently or in the future be developing information internally, or receiving information from other\npersons, that is similar to any Information. Accordingly, nothing in this Agreement shall be construed as a representation or agreement that the\nReceiving Party will not develop, or have developed for it, products, concepts, systems, or techniques that are similar to or compete with the\nConfidentiality Agreement\nPage 2\nproducts, concepts, systems or techniques contemplated by or embodied in any Information, provided that the Receiving Party does not violate any\nof its obligations under this Agreement in connection with such development. Further, each party hereto shall be free to use for any purpose any\ninformation in non-tangible form which may be retained in the unaided memories of persons who have had access to Information, including without\nlimitation ideas, concepts, know-how or techniques contained therein resulting from access to or work with any such Information, provided that such\nparty shall maintain the confidentiality of all such Information as provided herein. Neither party hereto shall have any obligation to limit or restrict\nthe assignment of such persons or to pay royalties for any work resulting from the use of any such information. Nothing in this paragraph 1 shall be\ndeemed to grant either party a license under or to any of the other party’s intellectual property rights. The term “Representative” shall mean, with\nrespect to the party in question, any of such party’s directors, officers, employees, affiliates (such term, as defined in the Securities Exchange Act of\n1934, as amended), representatives (including, without limitation, financial advisors, attorneys and accountants) and agents.\n2. Confidentiality of Transaction and Transaction Status. Without the prior written consent of the other party, neither Cisco nor the Company\nnor any of their respective Representatives will (except as set forth in the proviso below or as required by applicable law or stock exchange\nrequirement, regulation or legal process, and only after compliance with paragraph 3 below) disclose to any person any information regarding a\npossible Transaction or any information relating in any way to the Information, including, without limitation (i) that any investigations, discussions\nor negotiations are taking or have taken place concerning a possible Transaction, including the status thereof or the termination of such discussions\nor negotiations, (ii) any of the terms, conditions or other facts with respect to any such possible Transaction or its consideration of a possible\nTransaction, or (iii) that this Agreement exists, that Information exists or has been requested or made available or any opinion or view with respect to\nthe Transaction or the Information; provided, however, that the Company may disclose the existence of this Agreement and provide a copy thereof to\nthe counterparty (and such counterparty’s representatives) to an agreement relating to a Significant Event if such disclosure and provision is required\nby the terms of such agreement.\n3. Mandatory Requests from Governmental Agencies for Information. In the event that the Receiving Party or any of its Representatives are\nrequested or required by any government or governmental agency or authority (by oral questions, interrogatories, requests for information or\ndocuments, subpoena, civil investigative demand, any informal or formal investigation by any government or governmental agency or authority or\notherwise) to disclose any of the Information or any information the disclosure of which is limited by the provisions of paragraph 2 above\n(collectively, the “Compelled Information™), the Receiving Party will notify the Disclosing Party promptly in writing so that the Disclosing Party\nmay seek a protective order or other appropriate remedy or, in the Disclosing Party’s sole discretion, waive compliance with the terms of this\nAgreement. The Receiving Party and its Representatives agree not to oppose any action by the Disclosing Party to obtain a protective order or other\nappropriate remedy and shall cooperate fully with the Disclosing Party in connection therewith. In the event that no such protective order or other\nremedy is obtained, or that the Disclosing Party waives compliance with the terms of this Agreement or, in the absence of such protective order,\nother remedy or the waiver by the Disclosing Party and where the Receiving Party or its Representatives have been advised by counsel that is legally\ncompelled to disclose the Compelled Information, the Receiving Party and its Representatives will furnish only that portion of the Compelled\nInformation which the Receiving Party is advised by counsel is legally required and will exercise its reasonable efforts to obtain reliable assurance\nthat confidential treatment will be accorded such Compelled Information.\nConfidentiality Agreement\nPage 3\n4. Return of Information. At any time at the Disclosing Party’s written request, the Receiving Party and its Representatives agree to return\npromptly all Information to the Disclosing Party, and no copies, extracts or other reproductions of the Information shall be retained by the Receiving\nParty or its Representatives; provided, that any analyses, compilations, forecasts, studies, summaries, notes, data or other documents or materials\nprepared by the Receiving Party or its Representatives, in lieu of being returned to the Disclosing Party, may be destroyed by the Receiving Party\n(except to the extent such destruction is prohibited).\n5. No Obligation to Consummate Transaction. Each party hereto acknowledges and agrees that the other party has made no decision to pursue\nany Transaction and agrees that the other party will have the right in its sole discretion, without giving any reason therefor, at any time to terminate\ndiscussions concerning a possible Transaction or to elect not to pursue any such Transaction. In addition, each party hereto agrees that, except for the\nmatters specifically agreed to herein or in written agreements subsequently entered into between the parties, no contract or agreement providing for\nany Transaction involving the other party or any of its Representatives shall be deemed to exist, and the other party shall not be under any legal\nobligation of any kind whatsoever with respect to any such Transaction by virtue of this or any other written or oral expression with respect to such a\nTransaction by any of its Representatives, unless and until a definitive acquisition agreement or in written agreements subsequently entered into\nbetween the parties, if any, with respect to such Transaction has been executed and delivered by each such party.\n6. No Representations as to the Accuracy of the Information. The Receiving Party and its Representatives acknowledge that neither the\nDisclosing Party nor any of its Representatives makes any express or implied representation or warranty as to the accuracy or completeness of the\nInformation. The Receiving Party and its Representatives agree that they will be entitled to rely solely on such representations and warranties as may\nbe included in definitive agreements (if any) with respect to the Transaction, subject to such limitations and restrictions as may be contained therein.\n7. Standstill. Cisco agrees that, for a period commencing on the date hereof and ending on the earlier of (i) the date that is twelve (12) months\nfollowing the date of this Agreement or (ii) the occurrence of a Significant Event (as such terms is defined below), neither it nor any of its controlled\nsubsidiaries will, without the prior written consent of the Company: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by\npurchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the Company; (ii) make, or participate in,\ndirectly or indirectly, any “solicitation” of “proxies” (as such terms are defined under the rules of the Securities and Exchange Commission) to vote,\nor seek to advise or influence any person with respect to the voting of, any voting securities of the Company; (iii) make any public announcement\nwith respect to any acquisition transaction involving the Company or its securities, or submit to the Company a proposal for any acquisition\ntransaction involving the Company or its securities in a manner reasonably likely to require the Company to make a public announcement with\nrespect to such proposal; (iv) form, join or participate in any “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended) in connection with any of the foregoing, or (v) instigate, encourage or assist any third party to do any of the foregoing. For purposes of\nthis letter agreement, “Significant Event” shall mean the entry by the Company into a definitive agreement providing for (x) any acquisition or\npurchase from the Company by any person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) of 50% or more of the then\noutstanding voting securities of the Company, (y) any merger, tender offer, consolidation, business combination or similar transaction involving the\nCompany pursuant to which the stockholders of the Company immediately\nConfidentiality Agreement\nPage 4\npreceding such transaction hold less than 50% of the outstanding voting securities of the surviving or resulting entity of such transaction and hold\nless than 50% of the outstanding voting securities of any entity that controls such surviving or resulting entity; or (z) any sale, lease or exchange of\nall or substantially all of the assets of the Company and its subsidiaries, taken as a whole.\n8. Securities Law Restrictions. Each party represents that it is aware, and agrees that it will advise its Representatives who are informed of the\nmatters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by\nany person who has received material, non-public information from the issuer of such securities and on the communication of such information to\nany other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such\ninformation.\n9. Non-Solicitation of Employees. Each Party hereto agrees that, without the prior written consent of the other Party, those of such first Party’s\nSpecified Employees (as such term is defined below) who have been directly involved in the evaluation of the Transaction will not, for a period of\ntwelve (12) months from the date hereof, directly solicit for employment with such Party or any of its subsidiaries any Specified Employee of the\nother Party; provided that the foregoing shall not preclude either Party from making any general solicitation for employees (through the engagement\nof search firms, public advertising or otherwise) not directed at the Specified Employees of the other Party or from hiring any person who responds\nto such a general solicitation. For purposes of this letter agreement, a “Specified Employee” of a Party means any senior executive (Vice President\nlevel or above) who is employed by such Party as of the date hereof or at any time hereafter and with respect to whom a Specified Employee of the\nother Party has learned the identity of such person either as a result of having had access to any Information in connection with the Transaction or\nhas first met such person in connection with the evaluation of the Transaction.\n10. Miscellaneous.\n(a) Injunctive Relief. It is agreed that the Disclosing Party would be irreparably injured by a breach of this Agreement by the Receiving\nParty or any of its Representatives, that monetary remedies would be inadequate to protect the Disclosing Party against any actual or\nthreatened breach of this Agreement by the Receiving Party or any of its Representatives, and, without prejudice to any other rights and\nremedies otherwise available to the Disclosing Party, the Receiving Party, on behalf of itself and its Representatives, agrees to the granting of\nequitable relief, including injunctive relief and specific performance, in favor of the Disclosing Party without proof of actual damages and\nwithout any need to secure or post any bond in connection therewith.\n(b) Severability. If any provision of this Agreement shall, for any reason, be adjudged by any court of competent jurisdiction to be\ninvalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder of this Agreement but shall be confined in its\noperation to the provision of this Agreement directly involved in the controversy in which such judgment shall have been rendered.\n(c) Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their\nrespective successors and assigns.\nConfidentiality Agreement\nPage 5\n \n(d) Modifications to Agreement; Waivers. No modifications of or changes to this Agreement or waiver of the terms and conditions hereof\nwill be binding upon the Company or Cisco, unless approved in writing and signed by both the Company and Cisco. It is further agreed that no\nfailure or delay in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n(e) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without\nregard to the principles of conflict of laws thereof. Each party (a) consents to submit itself to the personal jurisdiction of any federal court\nlocated in the State of Delaware or any Delaware state court in the event of any dispute of any kind or nature with respect to or arising out of\nthis Agreement, (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from such\ncourt, and (c) agrees that it will not bring any action with respect to or arising out of this Agreement in any court other than a federal court\nsitting in the State of Delaware or a Delaware state court.\n(f) Termination. Each party’s obligations hereunder with respect to Information shall terminate on the second anniversary of the date of\nthis Agreement; provided that all matters related thereto in respect of which a claim has been made or an action or proceeding has been\ninstituted on or prior to such date shall survive the expiration of such period until such claim, action or proceeding is finally resolved.\n(g) Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the\nsubject matter of this Agreement and supersedes all prior agreements with respect thereto.\n \n \n(h) Notices. All notices hereunder shall be in writing and shall be deemed to have been duly given when delivered by messenger or by\novernight courier service (with confirmation of receipt) or by facsimile (upon confirmation of receipt), in each case as follows:\n(1)  if to the Company:\nWebex Communications, Inc.\nc/o Pillsbury Winthrop Shaw Pittman LLP\n2475 Hanover Street\nPalo Alto, California 94304-1114\nFacsimile: (650) 233-4545\nAttn: Jorge A. del Calvo, Esq.\n(2) ifto Cisco:\nCisco Systems, Inc.\n170 West Tasman Drive\nSan Jose, California 95134-1706\nFacsimile: (408) 525-4757\nAttn: General Counsel\nConfidentiality Agreement\nPage 6\n(i) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument.\n \n[The remainder of this page is intentionally left blank.]\nConfidentiality Agreement\nPage 7\nIN WITNESS WHEREOF, the parties hereto have caused this Confidentiality Agreement to be executed and delivered as of the date first\nwritten above.\nWEBEX COMMUNICATIONS, INC.\nBy: /s/ David Farrington\nName: David Farrington\nTitle: Vice President, General Counsel\nCISCO SYSTEMS, INC.\nBy: /s/ Mark T. Gorman\nName: Mark T. Gorman\nTitle: Director, Mergers & Acquisitions	EX-99.(E)(10) 8 dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(10)\nCONFIDENTIALITY AGREEMENT\nCONFIDENTIALITY AGREEMENT (this "Agreement"), dated as of March 4, 2007, by and between Webex Communications, Inc., a\nDelaware corporation (including its subsidiaries, the "Company"), and Cisco Systems, Inc., a California corporation (including its subsidiaries,\n"Cisco").\nWHEREAS, Cisco and the Company are engaging in discussions about a possible transaction between them (the "Transaction") and in\nconnection with evaluating the Transaction, each party (the "Disclosing Party") may disclose to the other party (the "Receiving Party") certain\ninformation relating to the Disclosing Party which is non-public, confidential or proprietary in nature;\nNOW, THEREFORE, the parties hereby agree as follows:\n1. Confidentiality of Information. The Receiving Party and its Representatives (as such term is defined below) (i) will keep the Information (as\nsuch term is defined below) strictly confidential and will not (except as required by applicable law or stock exchange requirement, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the Disclosing Party's prior written consent, disclose to any person (as such\nterm is defined below) any Information, and (ii) will not use any Information in any manner (whether for itself, any other person or otherwise) other\nthan solely in connection with its consideration of the Transaction. The Receiving Party further agrees to disclose the Information only to its\nRepresentatives who need to know the Information solely for the purpose of evaluating the Transaction, and who are informed by the Receiving\nParty of the confidential nature of the Information and agree to act in accordance with the terms of this Agreement. In addition, the Receiving Party\nand its Representatives shall take all reasonable actions and precautions to prevent the disclosure, use, copying, duplicating or reproducing of any\nInformation, as well as any information the disclosure of which is limited by the provisions of paragraph 2 below in any manner contrary to the\nprovisions of this Agreement. The term "Information" shall mean, with respect to the Disclosing Party in question, all confidential, proprietary or\nnon-public information (whether furnished before or after the date hereof and whether written, oral, electronic or otherwise) furnished by the\nDisclosing Party or its Representatives to the Receiving Party or its Representatives in connection with the Receiving Party's evaluation of the\nTransaction. The term "Information" will not, however, include information which (i) is or becomes publicly available other than as a result of\na\ndisclosure by the Receiving Party or its Representatives in violation of this Agreement, (ii) is or becomes available to the Receiving Party or any of\nits Representatives on a nonconfidential basis from a source (other than the Disclosing Party or any of its Representatives) which, to the Receiving\nParty's knowledge is not prohibited from disclosing such information to the Receiving Party, (iii) is known to the Receiving Party or any of its\nRepresentatives prior to disclosure by the Disclosing Party or any of its Representatives, or (iv) is or has been independently developed by the\nReceiving Party without use of any information furnished to it by the Disclosing Party. The term "person" shall mean any natural person,\ncorporation, general partnership, limited partnership, limited liability company, proprietorship, other business organization, trust, union or\nassociation or any court, tribunal, arbitrator, authority, agency, commission, official or other instrumentality of any country or any domestic\nor\nforeign\nstate,\ncounty,\ncity\nor\nother\npolitical\nsubdivision\nThe\nterms\nof\nconfidentiality\nunder\nthis\nAgreement\nshall\nnot\nbe\nconstrued\nto\nlimit\neither\nparty's right to independently develop or acquire products without use of, or reference to, the other party's Information. The Disclosing Party\nacknowledges that the Receiving Party may currently or in the future be developing information internally, or receiving information from other\npersons, that is similar to any Information. Accordingly, nothing in this Agreement shall be construed as a representation or agreement that\nthe\nReceiving Party will not develop, or have developed for it, products, concepts, systems, or techniques that are similar to or compete with the\nConfidentiality Agreement\nPage 2\nproducts, concepts, systems or techniques contemplated by or embodied in any Information, provided that the Receiving Party does not violate any\nof its obligations under this Agreement in connection with such development. Further, each party hereto shall be free to use for any purpose any\ninformation in non-tangible form which may be retained in the unaided memories of persons who have had access to Information, including without\nlimitation ideas, concepts, know-how or techniques contained therein resulting from access to or work with any such Information, provided that such\nparty shall maintain the confidentiality of all such Information as provided herein. Neither party hereto shall have any obligation to limit or restrict\nthe assignment of such persons or to pay royalties for any work resulting from the use of any such information. Nothing in this paragraph 1 shall\nbe\ndeemed to grant either party a license under or to any of the other party's intellectual property rights. The term "Representative" shall mean, with\nrespect to the party in question, any of such party's directors, officers, employees, affiliates (such term, as defined in the Securities Exchange Act of\n1934, as amended), representatives (including, without limitation, financial advisors, attorneys and accountants) and agents.\n2. Confidentiality. of Transaction and Transaction Status. Without the prior written consent of the other party, neither Cisco nor the Company\nnor any of their respective Representatives will (except as set forth in the proviso below or as required by applicable law or stock exchange\nrequirement, regulation or legal process, and only after compliance with paragraph 3 below) disclose to any person any information regarding\na\npossible Transaction or any information relating in any way to the Information, including, without limitation (i) that any investigations, discussions\nor negotiations are taking or have taken place concerning a possible Transaction, including the status thereof or the termination of such discussions\nor\nnegotiations, (ii) any of the terms, conditions or other facts with respect to any such possible Transaction or its consideration of a possible\nTransaction, or (iii) that this Agreement exists, that Information exists or has been requested or made available or any opinion or view with respect to\nthe Transaction or the Information; provided, however, that the Company may disclose the existence of this Agreement and provide a copy thereof to\nthe counterparty (and such counterparty's representatives) to an agreement relating to a Significant Event if such disclosure and provision is required\nby the terms of such agreement.\n3. Mandatory Requests from Governmental Agencies for Information. In the event that the Receiving Party or any of its Representatives\nare\nrequested or required by any government or governmental agency or authority (by oral questions, interrogatories, requests for information or\ndocuments, subpoena, civil investigative demand, any informal or formal investigation by any government or governmental agency or authority\nor\notherwise) to disclose any of the Information or any information the disclosure of which is limited by the provisions of paragraph 2 above\n(collectively, the "Compelled Information"), the Receiving Party will notify the Disclosing Party promptly in writing so that the Disclosing Party\nmay seek a protective order or other appropriate remedy or, in the Disclosing Party's sole discretion, waive compliance with the terms of this\nAgreement. The Receiving Party and its Representatives agree not to oppose any action by the Disclosing Party to obtain a protective order or other\nappropriate remedy and shall cooperate fully with the Disclosing Party in connection therewith. In the event that no such protective order or other\nremedy is obtained, or that the Disclosing Party waives compliance with the terms of this Agreement or, in the absence of such protective order,\nother remedy or the waiver by the Disclosing Party and where the Receiving Party or its Representatives have been advised by counsel that is legally\ncompelled to disclose the Compelled Information, the Receiving Party and its Representatives will furnish only that portion of the Compelled\nInformation which the Receiving Party is advised by counsel is legally required and will exercise its reasonable efforts to obtain reliable assurance\nthat confidential treatment will be accorded such Compelled Information.\nConfidentiality Agreement\nPage 3\n4. Return of Information. At any time at the Disclosing Party's written request, the Receiving Party and its Representatives agree to return\npromptly all Information to the Disclosing Party, and no copies, extracts or other reproductions of the Information shall be retained by the Receiving\nParty\nor its Representatives; provided, that any analyses, compilations, forecasts, studies, summaries, notes, data or other documents or materials\nprepared by the Receiving Party or its Representatives, in lieu of being returned to the Disclosing Party, may be destroyed by the Receiving Party\n(except to the extent such destruction is prohibited).\n5. No Obligation to Consummate Transaction. Each party hereto acknowledges and agrees that the other party has made no decision to pursue\nany Transaction and agrees that the other party will have the right in its sole discretion, without giving any reason therefor, at any time to terminate\ndiscussions concerning a possible Transaction or to elect not to pursue any such Transaction. In addition, each party hereto agrees that, except for the\nmatters specifically agreed to herein or in written agreements subsequently entered into between the parties, no contract or agreement providing for\nany Transaction involving the other party or any of its Representatives shall be deemed to exist, and the other party shall not be under any legal\nobligation\nof\nany\nkind\nwhatsoever\nwith\nrespect\nto\nany\nsuch\nTransaction\nby\nvirtue\nof\nthis\nor\nany\nother\nwritten\nor\noral\nexpression\nwith\nrespect\nto\nsuch\na\nTransaction by any of its Representatives, unless and until a definitive acquisition agreement or in written agreements subsequently entered into\nbetween the parties, if any, with respect to such Transaction has been executed and delivered by each such party.\n6. No Representations as to the Accuracy. of the Information. The Receiving Party and its Representatives acknowledge that neither the\nDisclosing Party nor any of its Representatives makes any express or implied representation or warranty as to the accuracy or completeness of\nthe\nInformation. The Receiving Party and its Representatives agree that they will be entitled to rely solely on such representations and warranties as may\nbe included in definitive agreements (if any) with respect to the Transaction, subject to such limitations and restrictions as may be contained therein\n7. Standstill. Cisco agrees that, for a period commencing on the date hereof and ending on the earlier of (i) the date that is twelve (12) months\nfollowing the date of this Agreement or (ii) the occurrence of a Significant Event (as such terms is defined below), neither it nor any of its controlled\nsubsidiaries will, without the prior written consent of the Company: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by\npurchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the Company; (ii) make, or participate in,\ndirectly or indirectly, any "solicitation" of "proxies" (as such terms are defined under the rules of the Securities and Exchange Commission) to vote,\nor seek to advise or influence any person with respect to the voting of, any voting securities of the Company; (iii) make any public announcement\nwith respect to any acquisition transaction involving the Company or its securities, or submit to the Company a proposal for any acquisition\ntransaction involving the Company or its securities in a manner reasonably likely to require the Company to make a public announcement with\nrespect to such proposal; (iv) form, join or participate in any "group" (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended) in connection with any of the foregoing, or (v) instigate, encourage or assist any third party to do any of the foregoing. For purposes of\nthis letter agreement, "Significant Event" shall mean the entry by the Company into a definitive agreement providing for (x) any acquisition or\npurchase from the Company by any person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) of 50% or more of the then\noutstanding voting securities of the Company, (y) any merger, tender offer, consolidation, business combination or similar transaction involving\nthe\nCompany pursuant to which the stockholders of the Company immediately\nConfidentiality Agreement\nPage 4\npreceding such transaction hold less than 50% of the outstanding voting securities of the surviving or resulting entity of such transaction and hold\nless than 50% of the outstanding voting securities of any entity that controls such surviving or resulting entity; or (z) any sale, lease or exchange\nof\nall or substantially all of the assets of the Company and its subsidiaries, taken as a whole.\n8. Securities Law Restrictions. Each party represents that it is aware, and agrees that it will advise its Representatives who are informed of the\nmatters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by\nany person who has received material, non-public information from the issuer of such securities and on the communication of such information\nto\nany other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such\ninformation.\n9. Non-Solicitation of Employees. Each Party hereto agrees that, without the prior written consent of the other Party, those of such first Party's\nSpecified Employees (as such term is defined below) who have been directly involved in the evaluation of the Transaction will not, for a period of\ntwelve (12) months from the date hereof, directly solicit for employment with such Party or any of its subsidiaries any Specified Employee of the\nother Party; provided that the foregoing shall not preclude either Party from making any general solicitation for employees (through the engagement\nof\nsearch firms, public advertising or otherwise) not directed at the Specified Employees of the other Party or from hiring any person who responds\nto such a general solicitation. For purposes of this letter agreement, a "Specified Employee" of a Party means any senior executive (Vice President\nlevel or above) who is employed by such Party as of the date hereof or at any time hereafter and with respect to whom a Specified Employee of the\nother Party has learned the identity of such person either as a result of having had access to any Information in connection with the Transaction or\nhas first met such person in connection with the evaluation of the Transaction.\n10. Miscellaneous.\n(a) Injunctive Relief. It is agreed that the Disclosing Party would be irreparably injured by a breach of this Agreement by the Receiving\nParty or any of its Representatives, that monetary remedies would be inadequate to protect the Disclosing Party against any actual or\nthreatened breach of this Agreement by the Receiving Party or any of its Representatives, and, without prejudice to any other rights and\nremedies otherwise available to the Disclosing Party, the Receiving Party, on behalf of itself and its Representatives, agrees to the granting of\nequitable relief, including injunctive relief and specific performance, in favor of the Disclosing Party without proof of actual damages and\nwithout any need to secure or post any bond in connection therewith.\n(b) Severability.. If any provision of this Agreement shall, for any reason, be adjudged by any court of competent jurisdiction to be\ninvalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder of this Agreement but shall be confined in its\noperation to the provision of this Agreement directly involved in the controversy in which such judgment shall have been rendered.\n(c) Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their\nrespective successors and assigns.\nConfidentiality Agreement\nPage 5\n(d) Modifications to Agreement; Waivers. No modifications of or changes to this Agreement or waiver of the terms and conditions hereof\nwill be binding upon the Company or Cisco, unless approved in writing and signed by both the Company and Cisco. It is further agreed that no\nfailure or delay in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n(e) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without\nregard to the principles of conflict of laws thereof. Each party (a) consents to submit itself to the personal jurisdiction of any federal court\nlocated in the State of Delaware or any Delaware state court in the event of any dispute of any kind or nature with respect to or arising out of\nthis Agreement, (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from such\ncourt, and (c) agrees that it will not bring any action with respect to or arising out of this Agreement in any court other than a federal court\nsitting in the State of Delaware or a Delaware state court.\n(f) Termination. Each party's obligations hereunder with respect to Information shall terminate on the second anniversary of the date of\nthis Agreement; provided that all matters related thereto in respect of which a claim has been made or an action or proceeding has been\ninstituted on or prior to such date shall survive the expiration of such period until such claim, action or proceeding is finally resolved.\n(g) Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the\nsubject matter of this Agreement and supersedes all prior agreements with respect thereto.\n(h) Notices. All notices hereunder shall be in writing and shall be deemed to have been duly given when delivered by messenger or by\novernight courier service (with confirmation of receipt) or by facsimile (upon confirmation of receipt), in each case as follows:\n(1)\nif to the Company:\nWebex Communications, Inc.\nc/o Pillsbury Winthrop Shaw Pittman LLP\n2475 Hanover Street\nPalo Alto, California 94304-1114\nFacsimile: (650) 233-4545\nAttn: Jorge A. del Calvo, Esq.\n(2)\nif to Cisco:\nCisco Systems, Inc.\n170 West Tasman Drive\nSan Jose, California 95134-1706\nFacsimile: (408) 525-4757\nAttn: General Counsel\nConfidentiality Agreement\nPage 6\n(i) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument.\n[The remainder of this page is intentionally left blank.]\nConfidentiality Agreement\nPage 7\nIN WITNESS WHEREOF, the parties hereto have caused this Confidentiality Agreement to be executed and delivered as of the date first\nwritten above.\nWEBEX COMMUNICATIONS, INC.\nBy: /s/ David Farrington\nName: David Farrington\nTitle: Vice President, General Counsel\nCISCO SYSTEMS, INC.\nBy: /s/ Mark T. Gorman\nName: Mark T. Gorman\nTitle: Director, Mergers & Acquisitions	EX-99.(E)(10) 8 dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(10)\nCONFIDENTIALITY AGREEMENT\nCONFIDENTIALITY AGREEMENT (this “Agreement”), dated as of March 4, 2007, by and between Webex Communications, Inc., a\nDelaware corporation (including its subsidiaries, the “Company”), and Cisco Systems, Inc., a California corporation (including its subsidiaries,\n“Cisco”).\nWHEREAS, Cisco and the Company are engaging in discussions about a possible transaction between them (the “Transaction”) and in\nconnection with evaluating the Transaction, each party (the “Disclosing Party”) may disclose to the other party (the “Receiving Party”) certain\ninformation relating to the Disclosing Party which is non-public, confidential or proprietary in nature;\nNOW, THEREFORE, the parties hereby agree as follows:\n1. Confidentiality of Information. The Receiving Party and its Representatives (as such term is defined below) (i) will keep the Information (as\nsuch term is defined below) strictly confidential and will not (except as required by applicable law or stock exchange requirement, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the Disclosing Party’s prior written consent, disclose to any person (as such\nterm is defined below) any Information, and (ii) will not use any Information in any manner (whether for itself, any other person or otherwise) other\nthan solely in connection with its consideration of the Transaction. The Receiving Party further agrees to disclose the Information only to its\nRepresentatives who need to know the Information solely for the purpose of evaluating the Transaction, and who are informed by the Receiving\nParty of the confidential nature of the Information and agree to act in accordance with the terms of this Agreement. In addition, the Receiving Party\nand its Representatives shall take all reasonable actions and precautions to prevent the disclosure, use, copying, duplicating or reproducing of any\nInformation, as well as any information the disclosure of which is limited by the provisions of paragraph 2 below in any manner contrary to the\nprovisions of this Agreement. The term “Information” shall mean, with respect to the Disclosing Party in question, all confidential, proprietary or\nnon-public information (whether furnished before or after the date hereof and whether written, oral, electronic or otherwise) furnished by the\nDisclosing Party or its Representatives to the Receiving Party or its Representatives in connection with the Receiving Party’s evaluation of the\nTransaction. The term “Information” will not, however, include information which (i) is or becomes publicly available other than as a result of a\ndisclosure by the Receiving Party or its Representatives in violation of this Agreement, (ii) is or becomes available to the Receiving Party or any of\nits Representatives on a nonconfidential basis from a source (other than the Disclosing Party or any of its Representatives) which, to the Receiving\nParty’s knowledge is not prohibited from disclosing such information to the Receiving Party, (iii) is known to the Receiving Party or any of its\nRepresentatives prior to disclosure by the Disclosing Party or any of its Representatives, or (iv) is or has been independently developed by the\nReceiving Party without use of any information furnished to it by the Disclosing Party. The term “person” shall mean any natural person,\ncorporation, general partnership, limited partnership, limited liability company, proprietorship, other business organization, trust, union or\nassociation or any court, tribunal, arbitrator, authority, agency, commission, official or other instrumentality of any country or any domestic or\nforeign state, county, city or other political subdivision. The terms of confidentiality under this Agreement shall not be construed to limit either\nparty’s right to independently develop or acquire products without use of, or reference to, the other party’s Information. The Disclosing Party\nacknowledges that the Receiving Party may currently or in the future be developing information internally, or receiving information from other\npersons, that is similar to any Information. Accordingly, nothing in this Agreement shall be construed as a representation or agreement that the\nReceiving Party will not develop, or have developed for it, products, concepts, systems, or techniques that are similar to or compete with the\nConfidentiality Agreement\nPage 2\nproducts, concepts, systems or techniques contemplated by or embodied in any Information, provided that the Receiving Party does not violate any\nof its obligations under this Agreement in connection with such development. Further, each party hereto shall be free to use for any purpose any\ninformation in non-tangible form which may be retained in the unaided memories of persons who have had access to Information, including without\nlimitation ideas, concepts, know-how or techniques contained therein resulting from access to or work with any such Information, provided that such\nparty shall maintain the confidentiality of all such Information as provided herein. Neither party hereto shall have any obligation to limit or restrict\nthe assignment of such persons or to pay royalties for any work resulting from the use of any such information. Nothing in this paragraph 1 shall be\ndeemed to grant either party a license under or to any of the other party’s intellectual property rights. The term “Representative” shall mean, with\nrespect to the party in question, any of such party’s directors, officers, employees, affiliates (such term, as defined in the Securities Exchange Act of\n1934, as amended), representatives (including, without limitation, financial advisors, attorneys and accountants) and agents.\n2. Confidentiality of Transaction and Transaction Status. Without the prior written consent of the other party, neither Cisco nor the Company\nnor any of their respective Representatives will (except as set forth in the proviso below or as required by applicable law or stock exchange\nrequirement, regulation or legal process, and only after compliance with paragraph 3 below) disclose to any person any information regarding a\npossible Transaction or any information relating in any way to the Information, including, without limitation (i) that any investigations, discussions\nor negotiations are taking or have taken place concerning a possible Transaction, including the status thereof or the termination of such discussions\nor negotiations, (ii) any of the terms, conditions or other facts with respect to any such possible Transaction or its consideration of a possible\nTransaction, or (iii) that this Agreement exists, that Information exists or has been requested or made available or any opinion or view with respect to\nthe Transaction or the Information; provided, however, that the Company may disclose the existence of this Agreement and provide a copy thereof to\nthe counterparty (and such counterparty’s representatives) to an agreement relating to a Significant Event if such disclosure and provision is required\nby the terms of such agreement.\n3. Mandatory Requests from Governmental Agencies for Information. In the event that the Receiving Party or any of its Representatives are\nrequested or required by any government or governmental agency or authority (by oral questions, interrogatories, requests for information or\ndocuments, subpoena, civil investigative demand, any informal or formal investigation by any government or governmental agency or authority or\notherwise) to disclose any of the Information or any information the disclosure of which is limited by the provisions of paragraph 2 above\n(collectively, the “Compelled Information”), the Receiving Party will notify the Disclosing Party promptly in writing so that the Disclosing Party\nmay seek a protective order or other appropriate remedy or, in the Disclosing Party’s sole discretion, waive compliance with the terms of this\nAgreement. The Receiving Party and its Representatives agree not to oppose any action by the Disclosing Party to obtain a protective order or other\nappropriate remedy and shall cooperate fully with the Disclosing Party in connection therewith. In the event that no such protective order or other\nremedy is obtained, or that the Disclosing Party waives compliance with the terms of this Agreement or, in the absence of such protective order,\nother remedy or the waiver by the Disclosing Party and where the Receiving Party or its Representatives have been advised by counsel that is legally\ncompelled to disclose the Compelled Information, the Receiving Party and its Representatives will furnish only that portion of the Compelled\nInformation which the Receiving Party is advised by counsel is legally required and will exercise its reasonable efforts to obtain reliable assurance\nthat confidential treatment will be accorded such Compelled Information.\nConfidentiality Agreement\nPage 3\n4. Return of Information. At any time at the Disclosing Party’s written request, the Receiving Party and its Representatives agree to return\npromptly all Information to the Disclosing Party, and no copies, extracts or other reproductions of the Information shall be retained by the Receiving\nParty or its Representatives; provided, that any analyses, compilations, forecasts, studies, summaries, notes, data or other documents or materials\nprepared by the Receiving Party or its Representatives, in lieu of being returned to the Disclosing Party, may be destroyed by the Receiving Party\n(except to the extent such destruction is prohibited).\n5. No Obligation to Consummate Transaction. Each party hereto acknowledges and agrees that the other party has made no decision to pursue\nany Transaction and agrees that the other party will have the right in its sole discretion, without giving any reason therefor, at any time to terminate\ndiscussions concerning a possible Transaction or to elect not to pursue any such Transaction. In addition, each party hereto agrees that, except for the\nmatters specifically agreed to herein or in written agreements subsequently entered into between the parties, no contract or agreement providing for\nany Transaction involving the other party or any of its Representatives shall be deemed to exist, and the other party shall not be under any legal\nobligation of any kind whatsoever with respect to any such Transaction by virtue of this or any other written or oral expression with respect to such a\nTransaction by any of its Representatives, unless and until a definitive acquisition agreement or in written agreements subsequently entered into\nbetween the parties, if any, with respect to such Transaction has been executed and delivered by each such party.\n6. No Representations as to the Accuracy of the Information. The Receiving Party and its Representatives acknowledge that neither the\nDisclosing Party nor any of its Representatives makes any express or implied representation or warranty as to the accuracy or completeness of the\nInformation. The Receiving Party and its Representatives agree that they will be entitled to rely solely on such representations and warranties as may\nbe included in definitive agreements (if any) with respect to the Transaction, subject to such limitations and restrictions as may be contained therein.\n7. Standstill. Cisco agrees that, for a period commencing on the date hereof and ending on the earlier of (i) the date that is twelve (12) months\nfollowing the date of this Agreement or (ii) the occurrence of a Significant Event (as such terms is defined below), neither it nor any of its controlled\nsubsidiaries will, without the prior written consent of the Company: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by\npurchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the Company; (ii) make, or participate in,\ndirectly or indirectly, any “solicitation” of “proxies” (as such terms are defined under the rules of the Securities and Exchange Commission) to vote,\nor seek to advise or influence any person with respect to the voting of, any voting securities of the Company; (iii) make any public announcement\nwith respect to any acquisition transaction involving the Company or its securities, or submit to the Company a proposal for any acquisition\ntransaction involving the Company or its securities in a manner reasonably likely to require the Company to make a public announcement with\nrespect to such proposal; (iv) form, join or participate in any “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended) in connection with any of the foregoing, or (v) instigate, encourage or assist any third party to do any of the foregoing. For purposes of\nthis letter agreement, “Significant Event” shall mean the entry by the Company into a definitive agreement providing for (x) any acquisition or\npurchase from the Company by any person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) of 50% or more of the then\noutstanding voting securities of the Company, (y) any merger, tender offer, consolidation, business combination or similar transaction involving the\nCompany pursuant to which the stockholders of the Company immediately\nConfidentiality Agreement\nPage 4\npreceding such transaction hold less than 50% of the outstanding voting securities of the surviving or resulting entity of such transaction and hold\nless than 50% of the outstanding voting securities of any entity that controls such surviving or resulting entity; or (z) any sale, lease or exchange of\nall or substantially all of the assets of the Company and its subsidiaries, taken as a whole.\n8. Securities Law Restrictions. Each party represents that it is aware, and agrees that it will advise its Representatives who are informed of the\nmatters that are the subject of this Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by\nany person who has received material, non-public information from the issuer of such securities and on the communication of such information to\nany other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such\ninformation.\n9. Non-Solicitation of Employees. Each Party hereto agrees that, without the prior written consent of the other Party, those of such first Party’s\nSpecified Employees (as such term is defined below) who have been directly involved in the evaluation of the Transaction will not, for a period of\ntwelve (12) months from the date hereof, directly solicit for employment with such Party or any of its subsidiaries any Specified Employee of the\nother Party; provided that the foregoing shall not preclude either Party from making any general solicitation for employees (through the engagement\nof search firms, public advertising or otherwise) not directed at the Specified Employees of the other Party or from hiring any person who responds\nto such a general solicitation. For purposes of this letter agreement, a “Specified Employee” of a Party means any senior executive (Vice President\nlevel or above) who is employed by such Party as of the date hereof or at any time hereafter and with respect to whom a Specified Employee of the\nother Party has learned the identity of such person either as a result of having had access to any Information in connection with the Transaction or\nhas first met such person in connection with the evaluation of the Transaction.\n10. Miscellaneous.\n(a) Injunctive Relief. It is agreed that the Disclosing Party would be irreparably injured by a breach of this Agreement by the Receiving\nParty or any of its Representatives, that monetary remedies would be inadequate to protect the Disclosing Party against any actual or\nthreatened breach of this Agreement by the Receiving Party or any of its Representatives, and, without prejudice to any other rights and\nremedies otherwise available to the Disclosing Party, the Receiving Party, on behalf of itself and its Representatives, agrees to the granting of\nequitable relief, including injunctive relief and specific performance, in favor of the Disclosing Party without proof of actual damages and\nwithout any need to secure or post any bond in connection therewith.\n(b) Severability. If any provision of this Agreement shall, for any reason, be adjudged by any court of competent jurisdiction to be\ninvalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder of this Agreement but shall be confined in its\noperation to the provision of this Agreement directly involved in the controversy in which such judgment shall have been rendered.\n(c) Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their\nrespective successors and assigns.\nConfidentiality Agreement\nPage 5\n(d) Modifications to Agreement; Waivers. No modifications of or changes to this Agreement or waiver of the terms and conditions hereof\nwill be binding upon the Company or Cisco, unless approved in writing and signed by both the Company and Cisco. It is further agreed that no\nfailure or delay in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n(e) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without\nregard to the principles of conflict of laws thereof. Each party (a) consents to submit itself to the personal jurisdiction of any federal court\nlocated in the State of Delaware or any Delaware state court in the event of any dispute of any kind or nature with respect to or arising out of\nthis Agreement, (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from such\ncourt, and (c) agrees that it will not bring any action with respect to or arising out of this Agreement in any court other than a federal court\nsitting in the State of Delaware or a Delaware state court.\n(f) Termination. Each party’s obligations hereunder with respect to Information shall terminate on the second anniversary of the date of\nthis Agreement; provided that all matters related thereto in respect of which a claim has been made or an action or proceeding has been\ninstituted on or prior to such date shall survive the expiration of such period until such claim, action or proceeding is finally resolved.\n(g) Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the\nsubject matter of this Agreement and supersedes all prior agreements with respect thereto.\n(h) Notices. All notices hereunder shall be in writing and shall be deemed to have been duly given when delivered by messenger or by\novernight courier service (with confirmation of receipt) or by facsimile (upon confirmation of receipt), in each case as follows:\n(1) if to the Company:\nWebex Communications, Inc.\nc/o Pillsbury Winthrop Shaw Pittman LLP\n2475 Hanover Street\nPalo Alto, California 94304-1114\nFacsimile: (650) 233-4545\nAttn: Jorge A. del Calvo, Esq.\n(2) if to Cisco:\nCisco Systems, Inc.\n170 West Tasman Drive\nSan Jose, California 95134-1706\nFacsimile: (408) 525-4757\nAttn: General Counsel\nConfidentiality Agreement\nPage 6\n(i) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument.\n[The remainder of this page is intentionally left blank.]\nConfidentiality Agreement\nPage 7\nIN WITNESS WHEREOF, the parties hereto have caused this Confidentiality Agreement to be executed and delivered as of the date first\nwritten above.\nWEBEX COMMUNICATIONS, INC.\nBy: /s/ David Farrington\nName: David Farrington\nTitle: Vice President, General Counsel\nCISCO SYSTEMS, INC.\nBy: /s/ Mark T. Gorman\nName: Mark T. Gorman\nTitle: Director, Mergers & Acquisitions
+ac93a0cef3a3fe11e8b2b5699ca36ceb.pdf	effective_date jurisdiction party term	EX-10.2 3 ex10_2.htm EXHIBIT 10.2 ACCUREL NON-COMPETE AND NDA\nExhibit 10.2\nNON-COMPETITION AND NONDISCLOSURE AGREEMENT\nThis Non-Competition and Nondisclosure Agreement is entered into as of April 30, 2007 (the “Agreement Date”) among Accurel\nSystems International Corporation, a California corporation (the “Seller”), Implant Sciences Corporation, a Massachusetts corporation (the\n“Guarantor”) and Evans Analytical Group LLC, a Delaware limited liability company (the “Buyer”).\nWITNESSETH:\nWHEREAS, the Buyer, Seller and Guarantor have entered into an Asset Purchase Agreement, dated as of the Agreement Date, pursuant\nto which, among other things, the Buyer is acquiring substantially all of the assets of Seller (the “Purchase Agreement”);\nWHEREAS, in order to protect the value of the business of the Seller being acquired by the Buyer pursuant to the Purchase Agreement\n(the “Purchased Business”), Seller and Guarantor shall not compete with the Buyer and its respective Affiliates (as defined in the Purchase\nAgreement) in accordance with the terms and conditions hereof; and\nWHEREAS, the agreement of Seller and Guarantor not to compete with the Buyer and its Affiliates as provided herein is an integral\npart of the transactions contemplated by the Purchase Agreement, and without such agreements, Buyer would not have entered into the Purchase\nAgreement.\nNOW, THEREFORE, in consideration of the covenants and agreements contained herein, the payment of the purchase price under the\nPurchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties\nhereto, intending to be legally bound hereby, agree as follows:\n1. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase\nAgreement; provided, however, that the following terms shall have the meanings set forth below irrespective of the meanings such terms may\nhave in the Purchase Agreement:\n(a) "Confidential Information" means all information heretofore developed or used by the Seller or any of its Affiliates relating to the Restricted\nBusiness (as defined below) operations, employees, customers and clients of the Seller, including, but not limited to, customer and client lists,\ncustomer or client orders, financial data, pricing information and price lists, business plans and market strategies and arrangements, all books,\nrecords, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing\nmaterials and records, personnel records, quality control records and procedures included in or relating to the Restricted Business or any of the\nassets of the Seller, and all trademarks, copyrights and patents and applications therefor, all trade secrets, inventions, processes, procedures,\nresearch records, market surveys and marketing know-how and other technical papers. The term "Confidential Information" also includes any\nother information heretofore or hereafter acquired by the Seller and deemed by it to be confidential.\n(b) The term "control", with respect to any person, means the power to direct the management and policies of such person, directly or indirectly,\nby or through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written or\noral) with one or more other persons by or through stock ownership, agency or otherwise; and the terms "controlling" and "controlled" have\nmeanings correlative to the foregoing.\n(c) The term "person" means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated\norganization or other entity, including a government or political subdivision or an agency or instrumentality thereof.\n(d) "Restricted Business" means the Business of the Seller, including all services performed by or on behalf of the Seller for its customers.\n(e) "Restricted Period" means the period commencing on the date of this Agreement and ending on the date which is five (5) years from the date\nhereof.\n2. Non-competition. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor\nshall not:\n(a) directly or indirectly engage in, be employed by, own, manage, operate, provide financing to, control or participate in the ownership,\nmanagement or control of, or otherwise have an interest (whether, subject to Section 5, as a stockholder, director, officer, employee,\nrepresentative, subcontractor, partner, consultant, proprietor, agent or otherwise) in, or cause, authorize, aid or assist any other person to own,\nmanage, operate, provide financing to, control or otherwise have an interest in, any business or any person who is engaged in any business that\ndirectly or indirectly competes or intends to compete with the Restricted Business anywhere in the world, unless Seller or Guarantor purchase or\nown less than five percent (5%) of capital stock in a publicly held company; or\n(b) directly, indirectly or otherwise by letters, circulars or advertisements, and whether for itself or on behalf of any other person, canvass or\nsolicit or, directly or indirectly, cause or authorize to be solicited, or enter into or effect, or, directly or indirectly, cause or authorize to be entered\ninto or effected, any business or orders for businesses competing with the Restricted Business from any person who (i) at the time of the\nAgreement or within two years prior to the date of the Agreement, has been, a customer or client, or (ii) is an active prospect to be a customer or\nclient, in each case, of the Seller at the time of the Agreement.\n3. Non-Disclosure of Confidential Information. Seller and Guarantor acknowledge that it is the policy of the Buyer to maintain as secret and\nconfidential all Confidential Information, and the parties hereto recognize that Seller and Guarantor have acquired Confidential Information.\nSeller and Guarantor recognize that all such Confidential Information is and shall remain the sole property of the Buyer, free of any rights of\nSeller or Guarantor, and acknowledges that the Buyer and its Affiliates have a vested interest in assuring that all such Confidential Information\nremains secret and confidential. Therefore, the Seller and Guarantor agree that at all times from after the date hereof, they will not, directly or\nindirectly, without the prior written consent of the Buyer, disclose to any person, firm, company or other entity (other than the Buyer or any of its\nAffiliates) any Confidential Information, except to the extent that (i) any such Confidential Information becomes generally available to the public\nor trade, other than as a result of a breach by the Seller or Guarantor of this Section 3, or (ii) any such Confidential Information becomes\navailable to the Seller or Guarantor on a non-confidential basis from a source other than the Seller, Guarantor, Buyer or any of their Affiliates or\nadvisors; provided, that such source is not known by the Seller or Guarantor to be bound by a confidentiality agreement with, or other obligation\nof secrecy to, the Seller, Guarantor, Buyer or another party. In addition, it shall not be a breach of the confidentiality obligations hereof if the\nSeller or Guarantor is required by law or legal process to disclose any Confidential Information; provided, that in such case, the Seller or\nGuarantor shall (a) give the Buyer prompt notice that such disclosure is or may be required, and (b) cooperate with the Buyer, at the Buyer's\nexpense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential Information which\nmust be so disclosed. The obligations of the Seller and Guarantor under this Section 3 shall survive any termination of this Agreement.\n4. Non-Solicitation. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor\nshall not, directly, indirectly or otherwise by letters, circulars or advertisements, and whether for themselves or on behalf of any other person:\n(a) solicit or, directly or indirectly, cause to be solicited for employment, any persons who (i) are, at the time of solicitation of employment,\nemployees of the Seller, Buyer or any of their respective Affiliates, or (ii) are, at the time of solicitation of employment, sales representatives or\nemployees thereof, retained by the Buyer or any of its Affiliates; or\n(b) employ or, directly or indirectly, cause to be employed, any persons who (i) are, at the time of such action, employees of the Buyer or any of\nits Affiliates, or (ii) are, at the time of such action, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates;\nprovided, however, that this Section 4 shall not prohibit Seller or Guarantor from employing or soliciting the employment any person who (A) is\nan employee of Seller as of the Agreement Date and (B) is not offered employment by Buyer as of the Agreement Date.\n5. Right to Injunctive Relief. Seller and Guarantor acknowledge that any breach or threatened breach by it of any of the covenants or provisions\ncontained herein will result in irreparable and continuing harm to the Buyer for which the Buyer would not have adequate remedy at law.\nTherefore, Seller and Guarantor acknowledges and agrees that, in addition to any other remedy which the Buyer may have at law or in equity, the\nBuyer shall be entitled to injunctive relief or other equitable remedies in the event of any such breach or threatened breach. Seller and Guarantor\nfurther acknowledges and agrees that monetary damages would be insufficient to compensate the Buyer in the event of a breach by Seller or\nGuarantor of any of the covenants or provisions contained herein, and that in the event of a breach thereof, the Buyer shall be entitled to specific\nperformance of the obligations hereunder.\n6. Enforceability; Severability. If any provision of this Agreement shall be adjudicated to be invalid or unenforceable, then such provision shall\nbe deemed modified, as to duration, territory or otherwise, so as to be enforceable as similar as possible to the provision at issue, in order to\nrender the remainder of this Agreement valid and enforceable. The invalidity or unenforceability of any provision of this Agreement shall not\naffect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were\nomitted.\n7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and its successors and assigns, and\nshall be binding and inure to the benefit of the Buyer and its successors and assigns.\n8. Entire Agreement. This Agreement, together with the Purchase Agreement and the Transaction Documents, contains the entire understanding\namong the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations and understandings among the Buyer and\nSeller with respect hereto. This Agreement may not be amended or modified except by a written instrument signed by the parties hereto.\n9. Governing Law; Venue.\n(a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Massachusetts,\nwithout giving effect to principles of conflicts of laws.\n(b) Unless otherwise explicitly provided in this Agreement, any Proceeding relating to this Agreement or the enforcement of any provision of\nthis Agreement may be brought or otherwise commenced in any state or federal court located in the County of Middlesex, Massachusetts. Each\nof Seller, Guarantor and Buyer:\n(i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of Middlesex,\nMassachusetts and each appellate court located in the State of Massachusetts, in connection with any such Proceeding;\n(ii) agrees that each state and federal court located in the County of Santa Clara, California or Massachusetts shall be deemed to be a\nconvenient forum;\n(iii) agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding commenced in any state or federal court\nlocated in the County of Santa Clara, California or Massachusetts any claim that such Party is not subject personally to the jurisdiction of such\ncourt, that such Proceeding has been brought in an inconvenient forum, that the venue of such Proceeding is improper or that this Agreement or\nthe subject matter of this Agreement may not be enforced in or by such court; and\n(iv) agrees that service in any action may be made by giving notice in accordance with Section 10.\n10. Notices. Any notice or other communication required or permitted to be delivered to any party shall be in writing and shall be deemed\nproperly delivered, given and received when delivered, by hand, by registered mail, by courier or express delivery service, by facsimile, or by e-\nmail to the address or facsimile number set forth beneath the name of such party below, or to such other address or facsimile number as such\nparty shall have specified in a written notice given to the other parties:\nif to the Seller or the Guarantor:\nImplant Sciences Corporation\n107 Audubon Road, #5\nWakefield, MA 01880-1246\nAttention:\nFacsimile: (781) 246-3561\nEmail:\n@implantsciences.com\nwith a copy to:\nEllenoff Grossman & Schole LLP\n370 Lexington Avenue\nNew York, NY 10017-6503\nAttention: Barry I. Grossman\nFacsimile: (212) 370-7889\nEmail:\nbigrossman@egsllp.com\nif to the Buyer:\nE vans Analytical Group LLC\n810 Kifer Road\nSunnyvale, CA 94086\nAttention: Thomas B. Pfeil\nFacsimile: (408) 530-3899\nE-mail: tpfeil@eaglabs.com\n11. Headings. The headings of sections and subsections of this Agreement are for convenience of reference only and are not to be considered in\nconstruing this Agreement.\n12. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an\noriginal, but all of which, when taken together, shall constitute one and the same instrument.\nIN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Nondisclosure Agreement to be executed as of the\nday and year first above written.\nACCUREL SYSTEMS INTERNATIONAL CORPORATION\nBy:\nName:\nTitle:\nEVANS ANALYTICAL GROUP LLC\nBy:\nName:\nTitle:\nIMPLANT SCIENCES CORPORATION\nBy:\nName:\nTitle:	EX-10.2 3 ex10_2.htm EXHIBIT 10.2 ACCUREL NON-COMPETE AND NDA\nExhibit 10.2\nNON-COMPETITION AND NONDISCLOSURE AGREEMENT\nThis Non-Competition and Nondisclosure Agreement is entered into as of April 30, 2007 (the “Agreement Date”) among Accurel\nSystems International Corporation, a California corporation (the “Seller”), Implant Sciences Corporation, a Massachusetts corporation (the\n“Guarantor”) and Evans Analytical Group LLC, a Delaware limited liability company (the “Buyer”).\nWITNESSETH:\nWHEREAS, the Buyer, Seller and Guarantor have entered into an Asset Purchase Agreement, dated as of the Agreement Date, pursuant\nto which, among other things, the Buyer is acquiring substantially all of the assets of Seller (the “Purchase Agreement”);\nWHEREAS, in order to protect the value of the business of the Seller being acquired by the Buyer pursuant to the Purchase Agreement\n(the “Purchased Business”), Seller and Guarantor shall not compete with the Buyer and its respective Affiliates (as defined in the Purchase\nAgreement) in accordance with the terms and conditions hereof; and\nWHEREAS, the agreement of Seller and Guarantor not to compete with the Buyer and its Affiliates as provided herein is an integral\npart of the transactions contemplated by the Purchase Agreement, and without such agreements, Buyer would not have entered into the Purchase\nAgreement.\nNOW, THEREFORE, in consideration of the covenants and agreements contained herein, the payment of the purchase price under the\nPurchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties\nhereto, intending to be legally bound hereby, agree as follows:\n1. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase\nAgreement; provided, however, that the following terms shall have the meanings set forth below irrespective of the meanings such terms may\nhave in the Purchase Agreement:\n(a) "Confidential Information" means all information heretofore developed or used by the Seller or any of its Affiliates relating to the Restricted\nBusiness (as defined below) operations, employees, customers and clients of the Seller, including, but not limited to, customer and client lists,\ncustomer or client orders, financial data, pricing information and price lists, business plans and market strategies and arrangements, all books,\nrecords, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing\nmaterials and records, personnel records, quality control records and procedures included in or relating to the Restricted Business or any of the\nassets of the Seller, and all trademarks, copyrights and patents and applications therefor, all trade secrets, inventions, processes, procedures,\nresearch records, market surveys and marketing know-how and other technical papers. The term "Confidential Information" also includes any\nother information heretofore or hereafter acquired by the Seller and deemed by it to be confidential.\n(b) The term "control", with respect to any person, means the power to direct the management and policies of such person, directly or indirectly,\nby or through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written or\noral) with one or more other persons by or through stock ownership, agency or otherwise; and the terms "controlling" and "controlled" have\nmeanings correlative to the foregoing.\n(c) The term "person" means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated\norganization or other entity, including a government or political subdivision or an agency or instrumentality thereof.\n(d) "Restricted Business" means the Business of the Seller, including all services performed by or on behalf of the Seller for its customers.\n(e) "Restricted Period" means the period commencing on the date of this Agreement and ending on the date which is five (5) years from the date\nhereof.\n2. Non-competition. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor\nshall not:\n(a) directly or indirectly engage in, be employed by, own, manage, operate, provide financing to, control or participate in the ownership,\nmanagement or control of, or otherwise have an interest (whether, subject to Section 5, as a stockholder, director, officer, employee,\nrepresentative, subcontractor, partner, consultant, proprietor, agent or otherwise) in, or cause, authorize, aid or assist any other person to own,\nmanage, operate, provide financing to, control or otherwise have an interest in, any business or any person who is engaged in any business that\ndirectly or indirectly competes or intends to compete with the Restricted Business anywhere in the world, unless Seller or Guarantor purchase or\nown less than five percent (5%) of capital stock in a publicly held company; or\n(b) directly, indirectly or otherwise by letters, circulars or advertisements, and whether for itself or on behalf of any other person, canvass or\nsolicit or, directly or indirectly, cause or authorize to be solicited, or enter into or effect, or, directly or indirectly, cause or authorize to be entered\ninto or effected, any business or orders for businesses competing with the Restricted Business from any person who (i) at the time of the\nAgreement or within two years prior to the date of the Agreement, has been, a customer or client, or (ii) is an active prospect to be a customer or\nclient, in each case, of the Seller at the time of the Agreement.\n3. Non-Disclosure of Confidential Information. Seller and Guarantor acknowledge that it is the policy of the Buyer to maintain as secret and\nconfidential all Confidential Information, and the parties hereto recognize that Seller and Guarantor have acquired Confidential Information.\nSeller and Guarantor recognize that all such Confidential Information is and shall remain the sole property of the Buyer, free of any rights of\nSeller or Guarantor, and acknowledges that the Buyer and its Affiliates have a vested interest in assuring that all such Confidential Information\nremains secret and confidential. Therefore, the Seller and Guarantor agree that at all times from after the date hereof, they will not, directly or\nindirectly, without the prior written consent of the Buyer, disclose to any person, firm, company or other entity (other than the Buyer or any of its\nAffiliates) any Confidential Information, except to the extent that (i) any such Confidential Information becomes generally available to the public\nor trade, other than as a result of a breach by the Seller or Guarantor of this Section 3, or (ii) any such Confidential Information becomes\navailable to the Seller or Guarantor on a non-confidential basis from a source other than the Seller, Guarantor, Buyer or any of their Affiliates or\nadvisors; provided, that such source is not known by the Seller or Guarantor to be bound by a confidentiality agreement with, or other obligation\nof secrecy to, the Seller, Guarantor, Buyer or another party. In addition, it shall not be a breach of the confidentiality obligations hereof if the\nSeller or Guarantor is required by law or legal process to disclose any Confidential Information; provided, that in such case, the Seller or\nGuarantor shall (a) give the Buyer prompt notice that such disclosure is or may be required, and (b) cooperate with the Buyer, at the Buyer's\nexpense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential Information which\nmust be so disclosed. The obligations of the Seller and Guarantor under this Section 3 shall survive any termination of this Agreement.\n4. Non-Solicitation. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor\nshall not, directly, indirectly or otherwise by letters, circulars or advertisements, and whether for themselves or on behalf of any other person:\n(a) solicit or, directly or indirectly, cause to be solicited for employment, any persons who (i) are, at the time of solicitation of employment,\nemployees of the Seller, Buyer or any of their respective Affiliates, or (ii) are, at the time of solicitation of employment, sales representatives or\nemployees thereof, retained by the Buyer or any of its Affiliates; or\n(b) employ or, directly or indirectly, cause to be employed, any persons who (i) are, at the time of such action, employees of the Buyer or any of\nits Affiliates, or (ii) are, at the time of such action, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates;\nprovided, however, that this Section 4 shall not prohibit Seller or Guarantor from employing or soliciting the employment any person who (A) is\nan employee of Seller as of the Agreement Date and (B) is not offered employment by Buyer as of the Agreement Date.\n5. Right to Injunctive Relief. Seller and Guarantor acknowledge that any breach or threatened breach by it of any of the covenants or provisions\ncontained herein will result in irreparable and continuing harm to the Buyer for which the Buyer would not have adequate remedy at law.\nTherefore, Seller and Guarantor acknowledges and agrees that, in addition to any other remedy which the Buyer may have at law or in equity, the\nBuyer shall be entitled to injunctive relief or other equitable remedies in the event of any such breach or threatened breach. Seller and Guarantor\nfurther acknowledges and agrees that monetary damages would be insufficient to compensate the Buyer in the event of a breach by Seller or\nGuarantor of any of the covenants or provisions contained herein, and that in the event of a breach thereof, the Buyer shall be entitled to specific\nperformance of the obligations hereunder.\n6. Enforceability; Severability. If any provision of this Agreement shall be adjudicated to be invalid or unenforceable, then such provision shall\nbe deemed modified, as to duration, territory or otherwise, so as to be enforceable as similar as possible to the provision at issue, in order to\nrender the remainder of this Agreement valid and enforceable. The invalidity or unenforceability of any provision of this Agreement shall not\naffect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were\nomitted.\n7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and its successors and assigns, and\nshall be binding and inure to the benefit of the Buyer and its successors and assigns.\n8. Entire Agreement. This Agreement, together with the Purchase Agreement and the Transaction Documents, contains the entire understanding\namong the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations and understandings among the Buyer and\nSeller with respect hereto. This Agreement may not be amended or modified except by a written instrument signed by the parties hereto.\n9. Governing Law; Venue.\n(a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Massachusetts,\nwithout giving effect to principles of conflicts of laws.\n(b) Unless otherwise explicitly provided in this Agreement, any Proceeding relating to this Agreement or the enforcement of any provision of\nthis Agreement may be brought or otherwise commenced in any state or federal court located in the County of Middlesex, Massachusetts. Each\nof Seller, Guarantor and Buyer:\n(i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of Middlesex,\nMassachusetts and each appellate court located in the State of Massachusetts, in connection with any such Proceeding;\n(ii) agrees that each state and federal court located in the County of Santa Clara, California or Massachusetts shall be deemed to be a\nconvenient forum;\n(iii) agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding commenced in any state or federal court\nlocated in the County of Santa Clara, California or Massachusetts any claim that such Party is not subject personally to the jurisdiction of such\ncourt, that such Proceeding has been brought in an inconvenient forum, that the venue of such Proceeding is improper or that this Agreement or\nthe subject matter of this Agreement may not be enforced in or by such court; and\n(iv) agrees that service in any action may be made by giving notice in accordance with Section 10.\n10. Notices. Any notice or other communication required or permitted to be delivered to any party shall be in writing and shall be deemed\nproperly delivered, given and received when delivered, by hand, by registered mail, by courier or express delivery service, by facsimile, or by e-\nmail to the address or facsimile number set forth beneath the name of such party below, or to such other address or facsimile number as such\nparty shall have specified in a written notice given to the other parties:\nif to the Seller or the Guarantor:\nImplant Sciences Corporation\n107 Audubon Road, #5\nWakefield, MA 01880-1246\nAttention:\nFacsimile: (781) 246-3561\nEmail: @implantsciences.com\nwith a copy to:\nEllenoff Grossman & Schole LLP\n370 Lexington Avenue\nNew York, NY 10017-6503\nAttention: Barry I. Grossman\nFacsimile: (212) 370-7889\nEmail: bigrossman@egsllp.com\nif to the Buyer:\nE vans Analytical Group LLC\n810 Kifer Road\nSunnyvale, CA 94086\nAttention: Thomas B. Pfeil\nFacsimile: (408) 530-3899\nE-mail: tpfeil@eaglabs.com\n11. Headings. The headings of sections and subsections of this Agreement are for convenience of reference only and are not to be considered in\nconstruing this Agreement.\n12. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an\noriginal, but all of which, when taken together, shall constitute one and the same instrument.\nIN WITNESS WHEREQF, the parties hereto have caused this Non-Competition and Nondisclosure Agreement to be executed as of the\nday and year first above written.\nACCUREL SYSTEMS INTERNATIONAL CORPORATION EVANS ANALYTICAL GROUP LLC\nBy: By:\nName: Name:\nTitle: Title:\nIMPLANT SCIENCES CORPORATION\nBy:\nName:\nTitle:	EX-10.2 ex102.htm EXHIBIT 10.2 ACCUREL NON-COMPETE AND NDA\nExhibit 10.2\nNON-COMPETITION AND NONDISCLOSURE AGREEMENT\nThis Non-Competition and Nondisclosure Agreement is entered into as of April 30, 2007 (the "Agreement Date") among Accurel\nSystems International Corporation, a California corporation (the "Seller"), Implant Sciences Corporation, a Massachusetts corporation (the\n"Guarantor") and Evans Analytical Group LLC, a Delaware limited liability company (the "Buyer").\nWITNESSETH:\nWHEREAS, the Buyer, Seller and Guarantor have entered into an Asset Purchase Agreement, dated as of the Agreement Date, pursuant\nto which, among other things, the Buyer is acquiring substantially all of the assets of Seller (the "Purchase Agreement");\nWHEREAS, in order to protect the value of the business of the Seller being acquired by the Buyer pursuant to the Purchase Agreement\n(the "Purchased Business"), Seller and Guarantor shall not compete with the Buyer and its respective Affiliates (as defined in the Purchase\nAgreement) in accordance with the terms and conditions hereof; and\nWHEREAS, the agreement of Seller and Guarantor not to compete with the Buyer and its Affiliates as provided herein is an integral\npart of the transactions contemplated by the Purchase Agreement, and without such agreements, Buyer would not have entered into the Purchase\nAgreement.\nNOW, THEREFORE, in consideration of the covenants and agreements contained herein, the payment of the purchase price under the\nPurchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties\nhereto, intending to be legally bound hereby, agree as follows:\n1. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase\nAgreement; provided, however, that the following terms shall have the meanings set forth below irrespective of the meanings such terms may\nhave in the Purchase Agreement:\n(a) "Confidential Information" means all information heretofore developed or used by the Seller or any of its Affiliates relating to the Restricted\nBusiness (as defined below) operations, employees, customers and clients of the Seller, including, but not limited to, customer and client lists,\ncustomer or client orders, financial data, pricing information and price lists, business plans and market strategies and arrangements, all books,\nrecords, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing\nmaterials and records, personnel records, quality control records and procedures included in or relating to the Restricted Business or any of the\nassets of the Seller, and all trademarks, copyrights and patents and applications therefor, all trade secrets, inventions, processes, procedures,\nresearch\nrecords,\nmarket\nsurveys\nand\nmarketing\nknow-how\nand\nother\ntechnical\npapers.\nThe\nterm\n"Confidential\nInformation"\nalso\nincludes\nany\nother information heretofore or hereafter acquired by the Seller and deemed by it to be confidential.\n(b)\nThe\nterm\n"control",\nwith\nrespect\nto\nany\nperson,\nmeans\nthe\npower\nto\ndirect\nthe\nmanagement\nand\npolicies\nof\nsuch\nperson,\ndirectly\nor\nindirectly,\nby or through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written or\noral) with one or more other persons by or through stock ownership, agency or otherwise; and the terms "controlling" and "controlled" have\nmeanings correlative to the foregoing.\n(c) The term "person" means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated\norganization or other entity, including a government or political subdivision or an agency or instrumentality thereof.\n(d) "Restricted Business" means the Business of the Seller, including all services performed by or on behalf of the Seller for its customers.\n(e) "Restricted Period" means the period commencing on the date of this Agreement and ending on the date which is five (5) years from the date\nhereof.\n2. Non-competition. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor\nshall not:\n(a) directly or indirectly engage in, be employed by, own, manage, operate, provide financing to, control or participate in the ownership,\nmanagement or control of, or otherwise have an interest (whether, subject to Section 5, as a stockholder, director, officer, employee,\nrepresentative, subcontractor, partner, consultant, proprietor, agent or otherwise) in, or cause, authorize, aid or assist any other person to own,\nmanage,\noperate,\nprovide\nfinancing\nto,\ncontrol\nor\notherwise\nhave\nan\ninterest\nin,\nany\nbusiness\nor\nany\nperson\nwho\nis\nengaged\nin\nany\nbusiness\nthat\ndirectly or indirectly competes or intends to compete with the Restricted Business anywhere in the world, unless Seller or Guarantor purchase or\nown less than five percent (5%) of capital stock in a publicly held company; or\n(b) directly, indirectly or otherwise by letters, circulars or advertisements, and whether for itself or on behalf of any other person, canvass or\nsolicit or, directly or indirectly, cause or authorize to be solicited, or enter into or effect, or, directly or indirectly, cause or authorize to be entered\ninto or effected, any business or orders for businesses competing with the Restricted Business from any person who (i) at the time of\nthe\nAgreement or within two years prior to the date of the Agreement, has been, a customer or client, or (ii) is an active prospect to be a customer or\nclient, in each case, of the Seller at the time of the Agreement.\n3. Non-Disclosure of Confidential Information. Seller and Guarantor acknowledge that it is the policy of the Buyer to maintain as secret and\nconfidential all Confidential Information, and the parties hereto recognize that Seller and Guarantor have acquired Confidential Information.\nSeller and Guarantor recognize that all such Confidential Information is and shall remain the sole property of the Buyer, free of any rights of\nSeller or Guarantor, and acknowledges that the Buyer and its Affiliates have a vested interest in assuring that all such Confidential Information\nremains\nsecret\nand\nconfidential.\nTherefore,\nthe\nSeller\nand\nGuarantor\nagree\nthat\nat\nall\ntimes\nfrom\nafter\nthe\ndate\nhereof,\nthey\nwill\nnot,\ndirectly\nor\nindirectly, without the prior written consent of the Buyer, disclose to any person, firm, company or other entity (other than the Buyer or any of its\nAffiliates) any Confidential Information, except to the extent that (i) any such Confidential Information becomes generally available to the public\nor\ntrade,\nother\nthan\nas\na\nresult\nof\na\nbreach\nby\nthe\nSeller\nor\nGuarantor\nof\nthis\nSection\n3,\nor\n(ii)\nany\nsuch\nConfidential\nInformation\nbecomes\navailable to the Seller or Guarantor on a non-confidential basis from a source other than the Seller, Guarantor, Buyer or any of their Affiliates\nor\nadvisors; provided, that such source is not known by the Seller or Guarantor to be bound by a confidentiality agreement with, or other obligation\nof secrecy to, the Seller, Guarantor, Buyer or another party. In addition, it shall not be a breach of the confidentiality obligations hereof if\nthe\nSeller or Guarantor is required by law or legal process to disclose any Confidential Information; provided, that in such case, the Seller or\nGuarantor shall (a) give the Buyer prompt notice that such disclosure is or may be required, and (b) cooperate with the Buyer, at the Buyer's\nexpense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential Information which\nmust be so disclosed. The obligations of the Seller and Guarantor under this Section 3 shall survive any termination of this Agreement.\n4. Non-Solicitation. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor\nshall not, directly, indirectly or otherwise by letters, circulars or advertisements, and whether for themselves or on behalf of any other person:\n(a) solicit or, directly or indirectly, cause to be solicited for employment, any persons who (i) are, at the time of solicitation of employment,\nemployees of the Seller, Buyer or any of their respective Affiliates, or (ii) are, at the time of solicitation of employment, sales representatives or\nemployees thereof, retained by the Buyer or any of its Affiliates; or\n(b) employ or, directly or indirectly, cause to be employed, any persons who (i) are, at the time of such action, employees of the Buyer or any of\nits Affiliates, or (ii) are, at the time of such action, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates;\nprovided, however, that this Section 4 shall not prohibit Seller or Guarantor from employing or soliciting the employment any person who (A)\nis\nan employee of Seller as of the Agreement Date and (B) is not offered employment by Buyer as of the Agreement Date.\n5. Right to Injunctive Relief. Seller and Guarantor acknowledge that any breach or threatened breach by it of any of the covenants or provisions\ncontained herein will result in irreparable and continuing harm to the Buyer for which the Buyer would not have adequate remedy at law.\nTherefore, Seller and Guarantor acknowledges and agrees that, in addition to any other remedy which the Buyer may have at law or in equity, the\nBuyer shall be entitled to injunctive relief or other equitable remedies in the event of any such breach or threatened breach. Seller and Guarantor\nfurther acknowledges and agrees that monetary damages would be insufficient to compensate the Buyer in the event of a breach by Seller or\nGuarantor of any of the covenants or provisions contained herein, and that in the event of a breach thereof, the Buyer shall be entitled to specific\nperformance of the obligations hereunder.\n6. Enforceability; Severability. If any provision of this Agreement shall be adjudicated to be invalid or unenforceable, then such provision shall\nbe deemed modified, as to duration, territory or otherwise, so as to be enforceable as similar as possible to the provision at issue, in order to\nrender the remainder of this Agreement valid and enforceable. The invalidity or unenforceability of any provision of this Agreement shall not\naffect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were\nomitted.\n7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and its successors and assigns, and\nshall be binding and inure to the benefit of the Buyer and its successors and assigns.\n8. Entire Agreement. This Agreement, together with the Purchase Agreement and the Transaction Documents, contains the entire understanding\namong the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations and understandings among the Buyer and\nSeller with respect hereto. This Agreement may not be amended or modified except by a written instrument signed by the parties hereto.\n9. Governing Law; Venue.\n(a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Massachusetts,\nwithout giving effect to principles of conflicts of laws.\n(b) Unless otherwise explicitly provided in this Agreement, any Proceeding relating to this Agreement or the enforcement of any provision of\nthis Agreement may be brought or otherwise commenced in any state or federal court located in the County of Middlesex, Massachusetts. Each\nof Seller, Guarantor and Buyer:\n(i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of Middlesex,\nMassachusetts and each appellate court located in the State of Massachusetts, in connection with any such Proceeding;\n(ii) agrees that each state and federal court located in the County of Santa Clara, California or Massachusetts shall be deemed to be\na\nconvenient forum;\n(iii) agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding commenced in any state or federal court\nlocated in the County of Santa Clara, California or Massachusetts any claim that such Party is not subject personally to the jurisdiction of such\ncourt, that such Proceeding has been brought in an inconvenient forum, that the venue of such Proceeding is improper or that this Agreement or\nthe subject matter of this Agreement may not be enforced in or by such court; and\n(iv) agrees that service in any action may be made by giving notice in accordance with Section 10.\n10. Notices. Any notice or other communication required or permitted to be delivered to any party shall be in writing and shall be deemed\nproperly delivered, given and received when delivered, by hand, by registered mail, by courier or express delivery service, by facsimile, or by e-\nmail to the address or facsimile number set forth beneath the name of such party below, or to such other address or facsimile number as such\nparty shall have specified in a written notice given to the other parties:\nif to the Seller or the Guarantor:\nImplant Sciences Corporation\n107 Audubon Road, #5\nWakefield, MA 01880-1246\nAttention:\nFacsimile: (781) 246-3561\nEmail:\n@implantsciences.com\nwith a copy to:\nEllenoff Grossman & Schole LLP\n370 Lexington Avenue\nNew York, NY 10017-6503\nAttention: Barry I. Grossman\nFacsimile: (212) 370-7889\nEmail: bigrossman@egsllp.com\nif to the Buyer:\nE vans Analytical Group LLC\n810 Kifer Road\nSunnyvale, CA 94086\nAttention: Thomas B. Pfeil\nFacsimile: (408) 530-3899\nE-mail: tpfeil@eaglabs.com\n11. Headings. The headings of sections and subsections of this Agreement are for convenience of reference only and are not to be considered in\nconstruing this Agreement.\n12.\nExecution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an\noriginal, but all of which, when taken together, shall constitute one and the same instrument.\nIN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Nondisclosure Agreement to be executed as of the\nday and year first above written.\nACCUREL SYSTEMS INTERNATIONAL CORPORATION\nEVANS ANALYTICAL GROUP LLC\nBy:\nBy:\nName:\nName:\nTitle:\nTitle:\nIMPLANT SCIENCES CORPORATION\nBy:\nName:\nTitle:	EX-10.2 3 ex10_2.htm EXHIBIT 10.2 ACCUREL NON-COMPETE AND NDA\nExhibit 10.2\nNON-COMPETITION AND NONDISCLOSURE AGREEMENT\nThis Non-Competition and Nondisclosure Agreement is entered into as of April 30, 2007 (the “Agreement Date”) among Accurel\nSystems International Corporation, a California corporation (the “Seller”), Implant Sciences Corporation, a Massachusetts corporation (the\n“Guarantor”) and Evans Analytical Group LLC, a Delaware limited liability company (the “Buyer”).\nWITNESSETH:\nWHEREAS, the Buyer, Seller and Guarantor have entered into an Asset Purchase Agreement, dated as of the Agreement Date, pursuant\nto which, among other things, the Buyer is acquiring substantially all of the assets of Seller (the “Purchase Agreement”);\nWHEREAS, in order to protect the value of the business of the Seller being acquired by the Buyer pursuant to the Purchase Agreement\n(the “Purchased Business”), Seller and Guarantor shall not compete with the Buyer and its respective Affiliates (as defined in the Purchase\nAgreement) in accordance with the terms and conditions hereof; and\nWHEREAS, the agreement of Seller and Guarantor not to compete with the Buyer and its Affiliates as provided herein is an integral\npart of the transactions contemplated by the Purchase Agreement, and without such agreements, Buyer would not have entered into the Purchase\nAgreement.\nNOW, THEREFORE, in consideration of the covenants and agreements contained herein, the payment of the purchase price under the\nPurchase Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties\nhereto, intending to be legally bound hereby, agree as follows:\n1. Certain Definitions. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase\nAgreement; provided, however, that the following terms shall have the meanings set forth below irrespective of the meanings such terms may\nhave in the Purchase Agreement:\n(a) "Confidential Information" means all information heretofore developed or used by the Seller or any of its Affiliates relating to the Restricted\nBusiness (as defined below) operations, employees, customers and clients of the Seller, including, but not limited to, customer and client lists,\ncustomer or client orders, financial data, pricing information and price lists, business plans and market strategies and arrangements, all books,\nrecords, manuals, advertising materials, catalogues, correspondence, mailing lists, production data, sales materials and records, purchasing\nmaterials and records, personnel records, quality control records and procedures included in or relating to the Restricted Business or any of the\nassets of the Seller, and all trademarks, copyrights and patents and applications therefor, all trade secrets, inventions, processes, procedures,\nresearch records, market surveys and marketing know-how and other technical papers. The term "Confidential Information" also includes any\nother information heretofore or hereafter acquired by the Seller and deemed by it to be confidential.\n(b) The term "control", with respect to any person, means the power to direct the management and policies of such person, directly or indirectly,\nby or through stock ownership, agency or otherwise, or pursuant to or in connection with an agreement, arrangement or understanding (written or\noral) with one or more other persons by or through stock ownership, agency or otherwise; and the terms "controlling" and "controlled" have\nmeanings correlative to the foregoing.\n(c) The term "person" means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated\norganization or other entity, including a government or political subdivision or an agency or instrumentality thereof.\n(d) "Restricted Business" means the Business of the Seller, including all services performed by or on behalf of the Seller for its customers.\n(e) "Restricted Period" means the period commencing on the date of this Agreement and ending on the date which is five (5) years from the date\nhereof.\n2. Non-competition. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor\nshall not:\n(a) directly or indirectly engage in, be employed by, own, manage, operate, provide financing to, control or participate in the ownership,\nmanagement or control of, or otherwise have an interest (whether, subject to Section 5, as a stockholder, director, officer, employee,\nrepresentative, subcontractor, partner, consultant, proprietor, agent or otherwise) in, or cause, authorize, aid or assist any other person to own,\nmanage, operate, provide financing to, control or otherwise have an interest in, any business or any person who is engaged in any business that\ndirectly or indirectly competes or intends to compete with the Restricted Business anywhere in the world, unless Seller or Guarantor purchase or\nown less than five percent (5%) of capital stock in a publicly held company; or\n(b) directly, indirectly or otherwise by letters, circulars or advertisements, and whether for itself or on behalf of any other person, canvass or\nsolicit or, directly or indirectly, cause or authorize to be solicited, or enter into or effect, or, directly or indirectly, cause or authorize to be entered\ninto or effected, any business or orders for businesses competing with the Restricted Business from any person who (i) at the time of the\nAgreement or within two years prior to the date of the Agreement, has been, a customer or client, or (ii) is an active prospect to be a customer or\nclient, in each case, of the Seller at the time of the Agreement.\n3. Non-Disclosure of Confidential Information. Seller and Guarantor acknowledge that it is the policy of the Buyer to maintain as secret and\nconfidential all Confidential Information, and the parties hereto recognize that Seller and Guarantor have acquired Confidential Information.\nSeller and Guarantor recognize that all such Confidential Information is and shall remain the sole property of the Buyer, free of any rights of\nSeller or Guarantor, and acknowledges that the Buyer and its Affiliates have a vested interest in assuring that all such Confidential Information\nremains secret and confidential. Therefore, the Seller and Guarantor agree that at all times from after the date hereof, they will not, directly or\nindirectly, without the prior written consent of the Buyer, disclose to any person, firm, company or other entity (other than the Buyer or any of its\nAffiliates) any Confidential Information, except to the extent that (i) any such Confidential Information becomes generally available to the public\nor trade, other than as a result of a breach by the Seller or Guarantor of this Section 3, or (ii) any such Confidential Information becomes\navailable to the Seller or Guarantor on a non-confidential basis from a source other than the Seller, Guarantor, Buyer or any of their Affiliates or\nadvisors; provided, that such source is not known by the Seller or Guarantor to be bound by a confidentiality agreement with, or other obligation\nof secrecy to, the Seller, Guarantor, Buyer or another party. In addition, it shall not be a breach of the confidentiality obligations hereof if the\nSeller or Guarantor is required by law or legal process to disclose any Confidential Information; provided, that in such case, the Seller or\nGuarantor shall (a) give the Buyer prompt notice that such disclosure is or may be required, and (b) cooperate with the Buyer, at the Buyer's\nexpense, in protecting, to the maximum extent legally permitted, the confidential or proprietary nature of the Confidential Information which\nmust be so disclosed. The obligations of the Seller and Guarantor under this Section 3 shall survive any termination of this Agreement.\n4. Non-Solicitation. At all times from and after the date of this Agreement and until the expiration of the Restricted Period, Seller and Guarantor\nshall not, directly, indirectly or otherwise by letters, circulars or advertisements, and whether for themselves or on behalf of any other person:\n(a) solicit or, directly or indirectly, cause to be solicited for employment, any persons who (i) are, at the time of solicitation of employment,\nemployees of the Seller, Buyer or any of their respective Affiliates, or (ii) are, at the time of solicitation of employment, sales representatives or\nemployees thereof, retained by the Buyer or any of its Affiliates; or\n(b) employ or, directly or indirectly, cause to be employed, any persons who (i) are, at the time of such action, employees of the Buyer or any of\nits Affiliates, or (ii) are, at the time of such action, sales representatives or employees thereof, retained by the Buyer or any of its Affiliates;\nprovided, however, that this Section 4 shall not prohibit Seller or Guarantor from employing or soliciting the employment any person who (A) is\nan employee of Seller as of the Agreement Date and (B) is not offered employment by Buyer as of the Agreement Date.\n5. Right to Injunctive Relief. Seller and Guarantor acknowledge that any breach or threatened breach by it of any of the covenants or provisions\ncontained herein will result in irreparable and continuing harm to the Buyer for which the Buyer would not have adequate remedy at law.\nTherefore, Seller and Guarantor acknowledges and agrees that, in addition to any other remedy which the Buyer may have at law or in equity, the\nBuyer shall be entitled to injunctive relief or other equitable remedies in the event of any such breach or threatened breach. Seller and Guarantor\nfurther acknowledges and agrees that monetary damages would be insufficient to compensate the Buyer in the event of a breach by Seller or\nGuarantor of any of the covenants or provisions contained herein, and that in the event of a breach thereof, the Buyer shall be entitled to specific\nperformance of the obligations hereunder.\n6. Enforceability; Severability. If any provision of this Agreement shall be adjudicated to be invalid or unenforceable, then such provision shall\nbe deemed modified, as to duration, territory or otherwise, so as to be enforceable as similar as possible to the provision at issue, in order to\nrender the remainder of this Agreement valid and enforceable. The invalidity or unenforceability of any provision of this Agreement shall not\naffect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were\nomitted.\n7. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of Seller and its successors and assigns, and\nshall be binding and inure to the benefit of the Buyer and its successors and assigns.\n8. Entire Agreement. This Agreement, together with the Purchase Agreement and the Transaction Documents, contains the entire understanding\namong the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations and understandings among the Buyer and\nSeller with respect hereto. This Agreement may not be amended or modified except by a written instrument signed by the parties hereto.\n9. Governing Law; Venue.\n(a) This Agreement shall be construed in accordance with, and governed in all respects by, the internal laws of the State of Massachusetts,\nwithout giving effect to principles of conflicts of laws.\n(b) Unless otherwise explicitly provided in this Agreement, any Proceeding relating to this Agreement or the enforcement of any provision of\nthis Agreement may be brought or otherwise commenced in any state or federal court located in the County of Middlesex, Massachusetts. Each\nof Seller, Guarantor and Buyer:\n(i) expressly and irrevocably consents and submits to the jurisdiction of each state and federal court located in the County of Middlesex,\nMassachusetts and each appellate court located in the State of Massachusetts, in connection with any such Proceeding;\n(ii) agrees that each state and federal court located in the County of Santa Clara, California or Massachusetts shall be deemed to be a\nconvenient forum;\n(iii) agrees not to assert, by way of motion, as a defense or otherwise, in any such Proceeding commenced in any state or federal court\nlocated in the County of Santa Clara, California or Massachusetts any claim that such Party is not subject personally to the jurisdiction of such\ncourt, that such Proceeding has been brought in an inconvenient forum, that the venue of such Proceeding is improper or that this Agreement or\nthe subject matter of this Agreement may not be enforced in or by such court; and\n(iv) agrees that service in any action may be made by giving notice in accordance with Section 10.\n10. Notices. Any notice or other communication required or permitted to be delivered to any party shall be in writing and shall be deemed\nproperly delivered, given and received when delivered, by hand, by registered mail, by courier or express delivery service, by facsimile, or by e-\nmail to the address or facsimile number set forth beneath the name of such party below, or to such other address or facsimile number as such\nparty shall have specified in a written notice given to the other parties:\nif to the Seller or the Guarantor:\nImplant Sciences Corporation\n107 Audubon Road, #5\nWakefield, MA 01880-1246\nAttention:\nFacsimile: (781) 246-3561\nEmail:\n@implantsciences.com\nwith a copy to:\nEllenoff Grossman & Schole LLP\n370 Lexington Avenue\nNew York, NY 10017-6503\nAttention: Barry I. Grossman\nFacsimile: (212) 370-7889\nEmail:\nbigrossman@egsllp.com\nif to the Buyer:\nE vans Analytical Group LLC\n810 Kifer Road\nSunnyvale, CA 94086\nAttention: Thomas B. Pfeil\nFacsimile: (408) 530-3899\nE-mail: tpfeil@eaglabs.com\n11. Headings. The headings of sections and subsections of this Agreement are for convenience of reference only and are not to be considered in\nconstruing this Agreement.\n12. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an\noriginal, but all of which, when taken together, shall constitute one and the same instrument.\nIN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Nondisclosure Agreement to be executed as of the\nday and year first above written.\nACCUREL SYSTEMS INTERNATIONAL CORPORATION\nBy:\nName:\nTitle:\nEVANS ANALYTICAL GROUP LLC\nBy:\nName:\nTitle:\nIMPLANT SCIENCES CORPORATION\nBy:\nName:\nTitle:
+af344c9a1d0fc128bcab1737a6b7d0ec.pdf	effective_date jurisdiction party term	EX-10.1 2 d244670dex101.htm CONFIDENTIAL SEPARATION AGREEMENT\nExhibit 10.1\nCONFIDENTIAL SEPARATION AGREEMENT\nAND GENERAL RELEASE OF ALL CLAIMS\nThis Confidential Separation Agreement and General Release of All Claims (“Separation Agreement”) is made by and between Life\nTechnologies Corporation, and any affiliates, subsidiaries, and merged (predecessor) entities (collectively the “Company”) and Bernd Brust\n(“Employee”) with respect to the following facts:\nA. Employee has been employed by the Company as a Head of Molecular Medicine.\nB. Employee’s employment will cease effective October 25, 2011 (“Separation Date”). The Company wishes to reach an amicable separation\nwith Employee and assist Employee’s transition to other employment. For the sake of clarity, the termination of Employee’s employment on the\nSeparation Date is not intended to create a termination of Service (as that term is defined in the Life Technologies 2009 Equity Incentive Plan).\nC. Employee and Company entered into an Indemnification Agreement dated March 23, 2005 (“Indemnification Agreement”), which is\nincorporated into this Separation Agreement by reference. The parties intend that the Indemnification Agreement shall remain in full force and\neffect, notwithstanding the terms of this Separation Agreement and the Consultancy Agreement that is attached hereto as Attachment A.\nD. The parties desire to settle all claims and issues that have been, or could have been, raised in relation to Employee’s employment with the\nCompany and arising out of or in any way related to the acts, transactions or occurrences between Employee, on the one hand and the Company on\nthe other hand, to date, including, but not limited to, Employee’s employment with the Company or the termination of that employment, on the terms\nset forth below.\nTHEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, it is agreed by and between the undersigned as\nfollows:\n1. Severance Package. If Employee executes this Separation Agreement, does not revoke it, and returns it to the Company by the deadline\nstated in Paragraph 19, the Company agrees to provide Employee with the following payments and benefits (“Severance Package”). Employee\nacknowledges and agrees that Employee is not otherwise entitled to such Severance Package, and that this Severance Package constitutes adequate\nlegal consideration for the promises and representations made by Employee in this Separation Agreement.\n1.1 . Consultancy. The Company will enter into a consultancy arrangement with Employee for a period up to, and not extending beyond,\nDecember 31, 2011 (“Consultancy Period”), at a rate of $5,000 per month. Employee understands and agrees that Employee must satisfy any\nCompany-required prerequisites to becoming a consultant, including without limitation, executing a consulting agreement with the Company,\nsubstantially similar to the form attached as Attachment A. As a consultant, Employee will be eligible to vest in those equity grants with vesting\ndates that occur during the Consultancy Period. However, Employee understands and agrees that any equity grants that do not vest during the\nConsultancy Period will be forfeited in accordance with the terms of the governing grant agreements and Company plan documents. Employee\nacknowledges and agrees that during the Consultancy Period, Employee’s relationship with the Company will be that of an independent contractor,\nnot an employee of the Company. Employee further understands and agrees that if, at any time during\nBrust, Bernd\nPage1of7\nthe Consultancy Period, Employee decides to perform consulting or other services for, or engage in or intend to engage in an employment\nrelationship with another company, Employee shall notify the Company prior to accepting such service and secure Company’s written approval. The\nCompany reserves the right to terminate the consultancy agreement in accordance with the terms of the consulting agreement, which will result in\nEmployee becoming ineligible to receive any further pay or other benefits associated with the consultancy.\n1.2 . Continuation of Group Health Benefits. The Company agrees to continue through the end of the month in which Employee’s\nSeparation Date occurs, the same medical and dental coverage that was in effect immediately prior to the Separation Date. In addition, the Company\nwill pay for the monthly premiums required to continue Employee’s group health insurance coverage for an additional two (2) months, provided\nEmployee elects to continue such benefits and remains eligible to receive such benefits in accordance with the applicable provisions of the\nConsolidated Omnibus Budget Reconciliation Act of 1985.\n1.3 . Outplacement Services. The Company agrees to provide Employee with outplacement assistance, in an amount and level decided by\nCompany, for nine (9) months. To remain eligible for Outplacement Services, Employee must commence the Outplacement Services within 60 days\nafter the completion of the Consultancy Period, otherwise the benefits will expire. In no event will Employee receive a cash payment or other\nconsideration in lieu of the Outplacement Services.\n2. Accrued and Vested Benefits. The parties agree that Employee shall receive any and all benefits due to Employee upon termination of\nemployment in accordance with Life Technologies’ policies and benefits plans, including, without limitation, accrued but unused vacation pay, if\napplicable, and any vested pension or other vested retirement benefits.\n3. General Release.\n3.1 . Except for the claims identified in the last sentence of this Paragraph 3.1, Employee unconditionally, irrevocably and absolutely\nreleases (i.e., “gives up”) and discharges the Company and any parent and subsidiary corporations, divisions and affiliated corporations, partnerships\nor other affiliated entities of the Company, past and present, including Invitrogen Corporation, Applera Corporation, and Applied Biosystems, Inc.,\nas well as the Company’s employees, officers, directors, agents, shareholders, successors and assigns (collectively, “Released Parties”), from all\nknown and unknown claims that Employee may presently have related in any way to the transactions or occurrences between Employee and any\nReleased Party. This general release includes, but is not limited to, Employee’s employment with the Company, the termination of Employee’s\nemployment, and all other losses, liabilities, claims, charges, demands and causes of action, known or unknown, suspected or unsuspected, arising\ndirectly or indirectly out of or in any way connected with Employee’s employment with the Company. This release is intended to have the broadest\npossible application and includes, but is not limited to, any tort, contract, common law, constitutional or other statutory claims arising under federal,\nstate or local law, including, but not limited to, alleged violations of the Worker Adjustment and Retraining Notification Act, 29 U.S .C. § 2101, et\nseq.; Title VII of the Civil Rights Act of 1964, 42 U.S .C. § 2000e, et seq., as amended; the Equal Pay Act, 29 U.S.C. § 206, as amended; the\nAmericans with Disabilities Act, 42 U.S.C. § 12101, et seq., as amended; the Age Discrimination in Employment Act of 1967, 29 U.S .C. § 621, et\nseq., as amended; the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq., as amended; the California Labor Code and Fair\nEmployment and Housing Act, and the anti-discrimination laws of the state in which Employee was employed; all claims for reprisal or retaliation\nunder federal or state law;\nBrust, Bernd\nPage2of7\nany claims for back pay, front pay, liquidated damages, compensatory or punitive damages, and injunctive relief; and all claims for attorneys’ fees,\ncosts and expenses. However, this general release is not intended to bar or release any claims that, by law or statute, may not be waived, such as\nclaims for workers’ compensation benefits, any challenge to the validity of Employee’s release of claims under the Age Discrimination in\nEmployment Act of 1967, as amended, as set forth in this Separation Agreement and unemployment insurance benefits.\n3.2 . Employee acknowledges that Employee later may discover facts or law different from, or in addition to, the facts or law that\nEmployee knows or believes to be true at the time Employee released the claims described in this Separation Agreement. Employee agrees,\nnonetheless, that this Separation Agreement and the release contained in it shall be and remain effective in all respects notwithstanding such different\nor additional facts or the discovery of them.\n3.3 . Employee declares and represents that Employee intends this Separation Agreement to be complete and not subject to any claim of\nmistake, and that the release herein expresses a full and complete release of all claims, known and unknown, suspected or unsuspected and,\nregardless of the adequacy or inadequacy of the consideration, Employee intends the release herein to be final and complete. Employee executes this\nSeparation Agreement and, where applicable, with the full knowledge that this Separation Agreement’s general release covers all possible claims\n(other than those claims specifically excepted from the release) against the Released Parties, to the fullest extent permitted by law.\n3.4 . Employee expressly waives Employee’s right to recovery of any type, including damages or reinstatement, in any administrative or\ncourt action, whether state or federal, and whether brought by Employee or on Employee’s behalf, related in any way to the matters released herein.\n4. California Civil Code Section 1542 Waiver. Employee intentionally releases claims that Employee does not know he or she might have and\nthat, with hindsight, Employee might regret having released. Employee expressly acknowledges and agrees that all rights under Section 1542 of the\nCalifornia Civil Code are expressly waived. That section provides:\nA GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN\nHIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE\nMATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.\n5. Representation Concerning Filing of Legal Actions. Employee represents that, as of the date Employee signed this Separation Agreement,\nEmployee has not filed any lawsuits, charges, complaints, petitions, claims or other accusatory pleadings against the Company or any Released Party\nin any court or with any governmental agency.\n6. Nondisparagement. Employee agrees that Employee will not make any voluntary statements, written or oral, or cause or encourage others to\nmake any such statements that defame, disparage or in any way criticize the personal and/or business reputations, practices or conduct of the\nCompany or any Released Party.\nBrust, Bernd\nPage3of7\n7. Confidentiality and Return of Company Property.\n7.1 . Confidential Separation Information. Employee agrees that the terms and conditions of this Separation Agreement and any\ndiscussions between Employee and the Company or any Released Party that led to the terms and conditions of this Separation Agreement\n(collectively referred to as the “Confidential Separation Information”) are intended to remain confidential between Employee and the Company\nand/or such Released Party. Employee further agrees that Employee will not disclose the Confidential Separation Information to any other persons,\nexcept that Employee may disclose such information to Employee’s immediate family members and to Employee’s attorney(s) and/or accountant(s),\nif any, to the extent needed for legal advice or income tax reporting purposes. When releasing this information to any such person, Employee shall\nadvise the person receiving the information of its confidential nature and treatment as such. Employee, and anyone to whom the Confidential\nSeparation Information has been disclosed, will not respond to, or in any way participate in or contribute to, any public discussion, notice or other\npublicity concerning the Confidential Separation Information. Without limiting the generality of the foregoing, Employee specifically agrees that\nneither Employee, Employee’s immediate family, Employee’s attorney, nor Employee’s accountant, if any, shall disclose the Confidential Separation\nInformation to any current, former or prospective employee of the Company. Nothing in this section will preclude Employee from disclosing\ninformation required in response to a subpoena duly issued by a court of law or a government agency having jurisdiction or power to compel such\ndisclosure, or from giving full, truthful and cooperative answers in response to a duly issued subpoena.\n7.2 . Confidential or Proprietary Information. Employee also agrees and represents that Employee has not and will not use, misuse,\nremove from the Company’s premises without permission, make unauthorized copies of or disclose any confidential or proprietary information of\nthe Company or any affiliated or related entities, including but not limited to, their trade secrets, copyrighted information, customer lists, any\ninformation encompassed in any research and development reports, work in progress, drawings, software, computer files or models, designs, plans,\nproposals, marketing and sales programs, financial projections, and all concepts or ideas, materials or information related to the business or sales of\nthe Company and any affiliated or related entities. Employee acknowledges signing either: (i) Invitrogen’s Information and Technology Agreement\nand Trade Secrets Policy; (ii) Applied Biosystems Conflict of Interest and Confidentiality Agreement; and/or (iii) Life Technologies’ Information\nand Technology Agreement and Confidential Information and Trade Secrets Agreement (collectively referred to as the “Confidentiality\nAgreements”) and agrees that the terms and conditions of any and all such agreements (including those signed prior to the merger or acquisition of\nany former employer with the Company) are expressly incorporated herein by reference, and survive the termination of Employee’s employment.\nEmployee also understands and agrees that Employee’s obligations under any Insider Trading policy extend beyond Employee’s employment with\nthe Company.\n7.3 . Return of Company Property. Employee understands and agrees that as a condition of receiving the Severance Package described in\nParagraph 1, all Company property must be returned to the Company on or before the Separation Date. By signing this Separation Agreement,\nEmployee represents and warrants that Employee will return to the Company, on or before the Separation Date, all Company property, including but\nnot limited to all confidential and proprietary information, as described in Paragraph 7.2 above, and all materials and documents containing trade\nsecrets and copyrighted materials, including all copies and excerpts of the same.\nBrust, Bernd\nPage4of7\n7.4. Promise Not to Solicit. To prevent Employee from inevitably breaking the promises Employee has just made in Paragraph 7.2 above,\nEmployee further agrees that, for twelve (12) months from the Separation Date (a) as to any customer or supplier of the Company or its affiliates\nwith whom Employee had dealings or about whom Employee acquired proprietary information during Employee’s employment, Employee will not\nsolicit or attempt to solicit the customer or supplier to do business with any person or entity to the detriment of the Company where such solicitation\nuses the confidential or proprietary information of the Company; and (b) Employee will not solicit for employment any person who is, or within the\npreceding six (6) months was, an officer, manager, employee, or consultant of the Company or its affiliates, unless the individual was no longer\nemployed by the Company before Employee’s solicitation.\n8. Cooperation. Employee agrees that Employee will fully cooperate with Company in connection with any claims, lawsuits, or proceedings\nthat relate in any manner to Employee’s conduct or duties at Company or that are based on facts about which Employee obtained personal\nknowledge while employed at Company. Any reasonable out-of-pocket expenses incurred by Employee associated with such cooperation will be\npaid for or reimbursed by the Company.\n9. Enforcement. If Employee breaches any of the terms in Paragraphs 6 or 7 above or their subparts, the Company will immediately cease\nproviding the Severance Package described in Paragraph 1 above, to the extent those payments and benefits have not yet been provided, to the fullest\nextent permitted by law. This shall in no way limit the Company’s right to pursue all legal and equitable remedies available to it as a result of\nEmployee’s breach of the Separation Agreement, to the fullest extent permitted by law.\n10. No Admissions. By entering into this Separation Agreement, the Company and any Released Party make no admission that they have\nengaged, or are now engaging, in any wrongdoing. The parties understand and acknowledge that this Separation Agreement is not an admission of\nliability and shall not be used or construed as such in any legal or administrative proceeding.\n11. No Other Severance Benefits. Employee acknowledges and agrees that the Severance Package provided pursuant to this Agreement is in\nlieu of any other severance benefits to which Employee may be eligible under any other agreement and/or severance plan or practice (including but\nnot limited to the Life Technologies Corporation Executive Officer Severance Plan) and Employee waives any and all rights to such other severance\nbenefits.\n12. Representation and Promise. Employee has not suffered any job-related wrongs or injuries, such as any type of discrimination, for which\nEmployee might still be entitled to compensation or relief in the future. Employee has properly reported any and all job-related wrongs or injuries for\nwhich Employee might still be entitled to compensation or relief, such as an injury for which Employee might receive a workers’ compensation\naward in the future. Employee has properly reported all hours that Employee has worked and Employee has been paid all wages, overtime,\ncommissions, compensation, benefits, and other amounts that the Company or any Released Party should have paid Employee in the past.\n13. Severability. In the event any provision of this Separation Agreement shall be found unenforceable by an arbitrator or a court of competent\njurisdiction, the provision shall be deemed modified to the extent necessary to allow enforceability of the provision as so limited, it being intended\nthat the parties shall receive the benefits contemplated herein to the fullest\nBrust, Bernd\nPage5of7\nextent permitted by law. If a deemed modification is not satisfactory in the judgment of such arbitrator or court, the unenforceable provision shall be\ndeemed deleted, and the validity and enforceability of the remaining provisions shall not be affected thereby.\n14. Applicable Law. The validity, interpretation and performance of this Separation Agreement shall be construed and interpreted according to\nthe laws of the United States of America and the state of California.\n15. Binding on Successors. The parties agree that this Separation Agreement shall be binding on, and inure to the benefit of, Employee’s and\nthe Company’s successors, heirs and/or assigns.\n16. Full Defense. This Separation Agreement may be pled as a full and complete defense to, and may be used as a basis for an injunction\nagainst, any action, suit or other proceeding that may be prosecuted, instituted or attempted by Employee in breach hereof.\n17. Good Faith. The parties agree to do all things necessary and to execute all further documents necessary and appropriate to carry out and\neffectuate the terms and purposes of this Separation Agreement.\n18. Entire Agreement/Modification. This Separation Agreement and its attachment(s), including the Indemnification Agreement and the\nsurviving provisions of the Confidentiality Agreements referenced in Paragraph 7.2 above, is intended to be the entire agreement between the parties\nrelating to the termination of Employee’s employment and any claims or future rights that Employee may have with respect to the Company and any\nReleased Party. As such, this Separation Agreement and the incorporated Confidentiality Agreements supersede and cancel any and all other and\nprior agreements, written or oral, and represent the entirety of the agreements between Employee and the Company or its affiliates, including any\npredecessor or merged entities, regarding this subject matter. It is agreed that there are no collateral agreements or representations, written or oral,\nregarding the terms and conditions of Employee’s separation of employment with the Company and settlement of all claims between the parties\nother than those set forth in this Separation Agreement, the Indemnification Agreement, and the surviving provisions of the Confidentiality\nAgreements. This Separation Agreement may be amended only by a written instrument executed by all parties hereto.\n19. The Older Workers’ Benefit Protection Act. This Separation Agreement is intended to satisfy the requirements of the Older Workers’\nBenefit Protection Act, 29 U.S.C. § 626(f) (“OWBPA”). Employee is advised to consult with an attorney before executing this Separation\nAgreement.\n19.1. Acknowledgments/Time to Consider. Employee acknowledges and agrees that (a) Employee has read and understands the terms of\nthis Separation Agreement; (b) this Separation Agreement advises Employee in writing to consult with an attorney before executing this Separation\nAgreement; (c) Employee has obtained and considered such legal counsel as Employee deems necessary; (d) Employee has been given at least\ntwenty-one (21) days to consider whether or not to enter into this Separation Agreement (although Employee may elect not to use the full\nconsideration period at Employee’s option); (e) and that by signing this Separation Agreement, Employee acknowledges that Employee does so\nfreely, knowingly, and voluntarily. Employee agrees that any changes made to this Separation Agreement, whether material or not material, made\nprior to Employee’s signing this Separation Agreement will not restart the time period to review and consider it. If Employee elects to sign this\nBrust, Bernd\nPage6of7\nSeparation Agreement, Employee must return it no later than the close of business on the twenty-first (21st) day after receiving this agreement to the\nCompany at the following address: Lara de Leon, Life Technologies Corporation, 5791 Van Allen Way, Carlsbad, CA 92008.\n19.2. Revocation/Effective Date. Employee may revoke his or her acceptance of this Separation Agreement at any time during the seven\n(7) days after signing it. To be effective, Employee’s revocation must be made in writing and returned to the Company at the address provided in the\nabove Paragraph 19.1, by the close of business on the seventh day after it was signed. If Employee does not revoke his or her acceptance in this\nmanner within the seven (7) day period after signing the Separation Agreement, then Employee’s acceptance of this Separation Agreement shall\nbecome binding and enforceable on the eighth day after Employee signs this Separation Agreement (“Effective Date”). The Severance Package shall\nbecome due and payable in accordance with the terms and conditions described in Paragraph 1 above and its subparts.\n19.3. Preserved Rights of Employee. This Separation Agreement does not waive or release any rights or claims that Employee may have\nunder the Age Discrimination in Employment Act that arise after the execution of this Separation Agreement. In addition, this Separation Agreement\ndoes not prohibit Employee from challenging the validity of this Agreement’s waiver and release of claims under the Age Discrimination in\nEmployment Act of 1967, as amended.\nDated: October 24, 2011\nBy: /s/ Bernd Brust\nBernd Brust (“Employee”)\nON BEHALF OF\nLIFE TECHNOLOGIES CORPORATION\nDated: October 24, 2011\nBy: /s/ Pete Leddy\nIts: SVP, Human Resources\nBrust, Bernd\nPage7of7	EX-10.1 2 d244670dex101.htm CONFIDENTIAL SEPARATION AGREEMENT\nExhibit 10.1\nCONFIDENTIAL SEPARATION AGREEMENT\nAND GENERAL RELEASE OF ALL CLAIMS\nThis Confidential Separation Agreement and General Release of All Claims (“Separation Agreement”) is made by and between Life\nTechnologies Corporation, and any affiliates, subsidiaries, and merged (predecessor) entities (collectively the “Company”) and Bernd Brust\n(“Employee”) with respect to the following facts:\nA. Employee has been employed by the Company as a Head of Molecular Medicine.\nB. Employee’s employment will cease effective October 25, 2011 (“Separation Date”). The Company wishes to reach an amicable separation\nwith Employee and assist Employee’s transition to other employment. For the sake of clarity, the termination of Employee’s employment on the\nSeparation Date is not intended to create a termination of Service (as that term is defined in the Life Technologies 2009 Equity Incentive Plan).\nC. Employee and Company entered into an Indemnification Agreement dated March 23, 2005 (“Indemnification Agreement”), which is\nincorporated into this Separation Agreement by reference. The parties intend that the Indemnification Agreement shall remain in full force and\neffect, notwithstanding the terms of this Separation Agreement and the Consultancy Agreement that is attached hereto as Attachment A.\nD. The parties desire to settle all claims and issues that have been, or could have been, raised in relation to Employee’s employment with the\nCompany and arising out of or in any way related to the acts, transactions or occurrences between Employee, on the one hand and the Company on\nthe other hand, to date, including, but not limited to, Employee’s employment with the Company or the termination of that employment, on the terms\nset forth below.\nTHEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, it is agreed by and between the undersigned as\nfollows:\n1. Severance Package. If Employee executes this Separation Agreement, does not revoke it, and returns it to the Company by the deadline\nstated in Paragraph 19, the Company agrees to provide Employee with the following payments and benefits (“Severance Package”). Employee\nacknowledges and agrees that Employee is not otherwise entitled to such Severance Package, and that this Severance Package constitutes adequate\nlegal consideration for the promises and representations made by Employee in this Separation Agreement.\n1.1. Consultancy. The Company will enter into a consultancy arrangement with Employee for a period up to, and not extending beyond,\nDecember 31, 2011 (“Consultancy Period”), at a rate of $5,000 per month. Employee understands and agrees that Employee must satisfy any\nCompany-required prerequisites to becoming a consultant, including without limitation, executing a consulting agreement with the Company,\nsubstantially similar to the form attached as Attachment A. As a consultant, Employee will be eligible to vest in those equity grants with vesting\ndates that occur during the Consultancy Period. However, Employee understands and agrees that any equity grants that do not vest during the\nConsultancy Period will be forfeited in accordance with the terms of the governing grant agreements and Company plan documents. Employee\nacknowledges and agrees that during the Consultancy Period, Employee’s relationship with the Company will be that of an independent contractor,\nnot an employee of the Company. Employee further understands and agrees that if, at any time during\nBrust, Bernd Page 1 of 7\nthe Consultancy Period, Employee decides to perform consulting or other services for, or engage in or intend to engage in an employment\nrelationship with another company, Employee shall notify the Company prior to accepting such service and secure Company’s written approval. The\nCompany reserves the right to terminate the consultancy agreement in accordance with the terms of the consulting agreement, which will result in\nEmployee becoming ineligible to receive any further pay or other benefits associated with the consultancy.\n1.2. Continuation of Group Health Benefits. The Company agrees to continue through the end of the month in which Employee’s\nSeparation Date occurs, the same medical and dental coverage that was in effect immediately prior to the Separation Date. In addition, the Company\nwill pay for the monthly premiums required to continue Employee’s group health insurance coverage for an additional two (2) months, provided\nEmployee elects to continue such benefits and remains eligible to receive such benefits in accordance with the applicable provisions of the\nConsolidated Omnibus Budget Reconciliation Act of 1985.\n1.3. Outplacement Services. The Company agrees to provide Employee with outplacement assistance, in an amount and level decided by\nCompany, for nine (9) months. To remain eligible for Outplacement Services, Employee must commence the Outplacement Services within 60 days\nafter the completion of the Consultancy Period, otherwise the benefits will expire. In no event will Employee receive a cash payment or other\nconsideration in lieu of the Outplacement Services.\n2. Accrued and Vested Benefits. The parties agree that Employee shall receive any and all benefits due to Employee upon termination of\nemployment in accordance with Life Technologies’ policies and benefits plans, including, without limitation, accrued but unused vacation pay;, if\napplicable, and any vested pension or other vested retirement benefits.\n3. General Release.\n3.1. Except for the claims identified in the last sentence of this Paragraph 3.1, Employee unconditionally, irrevocably and absolutely\nreleases (i.e., “gives up”) and discharges the Company and any parent and subsidiary corporations, divisions and affiliated corporations, partnerships\nor other affiliated entities of the Company, past and present, including Invitrogen Corporation, Applera Corporation, and Applied Biosystems, Inc.,\nas well as the Company’s employees, officers, directors, agents, shareholders, successors and assigns (collectively, “Released Parties”), from all\nknown and unknown claims that Employee may presently have related in any way to the transactions or occurrences between Employee and any\nReleased Party. This general release includes, but is not limited to, Employee’s employment with the Company, the termination of Employee’s\nemployment, and all other losses, liabilities, claims, charges, demands and causes of action, known or unknown, suspected or unsuspected, arising\ndirectly or indirectly out of or in any way connected with Employee’s employment with the Company. This release is intended to have the broadest\npossible application and includes, but is not limited to, any tort, contract, common law, constitutional or other statutory claims arising under federal,\nstate or local law, including, but not limited to, alleged violations of the Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101, et\nseq.; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended; the Equal Pay Act, 29 U.S.C. § 206, as amended; the\nAmericans with Disabilities Act, 42 U.S.C. § 12101, et seq., as amended; the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et\nseq., as amended; the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq., as amended; the California Labor Code and Fair\nEmployment and Housing Act, and the anti-discrimination laws of the state in which Employee was employed; all claims for reprisal or retaliation\nunder federal or state law;\nBrust, Bernd Page 2 of 7\nany claims for back pay, front pay, liquidated damages, compensatory or punitive damages, and injunctive relief; and all claims for attorneys’ fees,\ncosts and expenses. However, this general release is not intended to bar or release any claims that, by law or statute, may not be waived, such as\nclaims for workers’ compensation benefits, any challenge to the validity of Employee’s release of claims under the Age Discrimination in\nEmployment Act of 1967, as amended, as set forth in this Separation Agreement and unemployment insurance benefits.\n3.2. Employee acknowledges that Employee later may discover facts or law different from, or in addition to, the facts or law that\nEmployee knows or believes to be true at the time Employee released the claims described in this Separation Agreement. Employee agrees,\nnonetheless, that this Separation Agreement and the release contained in it shall be and remain effective in all respects notwithstanding such different\nor additional facts or the discovery of them.\n3.3. Employee declares and represents that Employee intends this Separation Agreement to be complete and not subject to any claim of\nmistake, and that the release herein expresses a full and complete release of all claims, known and unknown, suspected or unsuspected and,\nregardless of the adequacy or inadequacy of the consideration, Employee intends the release herein to be final and complete. Employee executes this\nSeparation Agreement and, where applicable, with the full knowledge that this Separation Agreement’s general release covers all possible claims\n(other than those claims specifically excepted from the release) against the Released Parties, to the fullest extent permitted by law.\n3.4. Employee expressly waives Employee’s right to recovery of any type, including damages or reinstatement, in any administrative or\ncourt action, whether state or federal, and whether brought by Employee or on Employee’s behalf, related in any way to the matters released herein.\n4. California Civil Code Section 1542 Waiver. Employee intentionally releases claims that Employee does not know he or she might have and\nthat, with hindsight, Employee might regret having released. Employee expressly acknowledges and agrees that all rights under Section 1542 of the\nCalifornia Civil Code are expressly waived. That section provides:\nA GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN\nHIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE\nMATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.\n5. Representation Concerning Filing of L.egal Actions. Employee represents that, as of the date Employee signed this Separation Agreement,\nEmployee has not filed any lawsuits, charges, complaints, petitions, claims or other accusatory pleadings against the Company or any Released Party\nin any court or with any governmental agency.\n6. Nondisparagement. Employee agrees that Employee will not make any voluntary statements, written or oral, or cause or encourage others to\nmake any such statements that defame, disparage or in any way criticize the personal and/or business reputations, practices or conduct of the\nCompany or any Released Party.\nBrust, Bernd Page 3 of 7\n7.1. Confidential Separation Information. Employee agrees that the terms and conditions of this Separation Agreement and any\ndiscussions between Employee and the Company or any Released Party that led to the terms and conditions of this Separation Agreement\n(collectively referred to as the “Confidential Separation Information™) are intended to remain confidential between Employee and the Company\nand/or such Released Party. Employee further agrees that Employee will not disclose the Confidential Separation Information to any other persons,\nexcept that Employee may disclose such information to Employee’s immediate family members and to Employee’s attorney(s) and/or accountant(s),\nif any, to the extent needed for legal advice or income tax reporting purposes. When releasing this information to any such person, Employee shall\nadvise the person receiving the information of its confidential nature and treatment as such. Employee, and anyone to whom the Confidential\nSeparation Information has been disclosed, will not respond to, or in any way participate in or contribute to, any public discussion, notice or other\npublicity concerning the Confidential Separation Information. Without limiting the generality of the foregoing, Employee specifically agrees that\nneither Employee, Employee’s immediate family, Employee’s attorney, nor Employee’s accountant, if any, shall disclose the Confidential Separation\nInformation to any current, former or prospective employee of the Company. Nothing in this section will preclude Employee from disclosing\ninformation required in response to a subpoena duly issued by a court of law or a government agency having jurisdiction or power to compel such\ndisclosure, or from giving full, truthful and cooperative answers in response to a duly issued subpoena.\n7.2. Confidential or Proprietary Information. Employee also agrees and represents that Employee has not and will not use, misuse,\nremove from the Company’s premises without permission, make unauthorized copies of or disclose any confidential or proprietary information of\nthe Company or any affiliated or related entities, including but not limited to, their trade secrets, copyrighted information, customer lists, any\ninformation encompassed in any research and development reports, work in progress, drawings, software, computer files or models, designs, plans,\nproposals, marketing and sales programs, financial projections, and all concepts or ideas, materials or information related to the business or sales of\nthe Company and any affiliated or related entities. Employee acknowledges signing either: (i) Invitrogen’s Information and Technology Agreement\nand Trade Secrets Policy; (ii) Applied Biosystems Conflict of Interest and Confidentiality Agreement; and/or (iii) Life Technologies’ Information\nand Technology Agreement and Confidential Information and Trade Secrets Agreement (collectively referred to as the “Confidentiality\nAgreements™”) and agrees that the terms and conditions of any and all such agreements (including those signed prior to the merger or acquisition of\nany former employer with the Company) are expressly incorporated herein by reference, and survive the termination of Employee’s employment.\nEmployee also understands and agrees that Employee’s obligations under any Insider Trading policy extend beyond Employee’s employment with\nthe Company.\nParagraph 1, all Company property must be returned to the Company on or before the Separation Date. By signing this Separation Agreement,\nEmployee represents and warrants that Employee will return to the Company, on or before the Separation Date, all Company property, including but\nnot limited to all confidential and proprietary information, as described in Paragraph 7.2 above, and all materials and documents containing trade\nsecrets and copyrighted materials, including all copies and excerpts of the same.\nBrust, Bernd Page 4 of 7\n7.4. Promise Not to Solicit. To prevent Employee from inevitably breaking the promises Employee has just made in Paragraph 7.2 above,\nEmployee further agrees that, for twelve (12) months from the Separation Date (a) as to any customer or supplier of the Company or its affiliates\nwith whom Employee had dealings or about whom Employee acquired proprietary information during Employee’s employment, Employee will not\nsolicit or attempt to solicit the customer or supplier to do business with any person or entity to the detriment of the Company where such solicitation\nuses the confidential or proprietary information of the Company; and (b) Employee will not solicit for employment any person who is, or within the\npreceding six (6) months was, an officer, manager, employee, or consultant of the Company or its affiliates, unless the individual was no longer\nemployed by the Company before Employee’s solicitation.\n8. Cooperation. Employee agrees that Employee will fully cooperate with Company in connection with any claims, lawsuits, or proceedings\nthat relate in any manner to Employee’s conduct or duties at Company or that are based on facts about which Employee obtained personal\nknowledge while employed at Company. Any reasonable out-of-pocket expenses incurred by Employee associated with such cooperation will be\npaid for or reimbursed by the Company.\n \n9. Enforcement. If Employee breaches any of the terms in Paragraphs 6 or 7 above or their subparts, the Company will immediately cease\nproviding the Severance Package described in Paragraph 1 above, to the extent those payments and benefits have not yet been provided, to the fullest\nextent permitted by law. This shall in no way limit the Company’s right to pursue all legal and equitable remedies available to it as a result of\nEmployee’s breach of the Separation Agreement, to the fullest extent permitted by law.\n10. No Admissions. By entering into this Separation Agreement, the Company and any Released Party make no admission that they have\nengaged, or are now engaging, in any wrongdoing. The parties understand and acknowledge that this Separation Agreement is not an admission of\nliability and shall not be used or construed as such in any legal or administrative proceeding.\n11. No Other Severance Benefits. Employee acknowledges and agrees that the Severance Package provided pursuant to this Agreement is in\nlieu of any other severance benefits to which Employee may be eligible under any other agreement and/or severance plan or practice (including but\nnot limited to the Life Technologies Corporation Executive Officer Severance Plan) and Employee waives any and all rights to such other severance\nbenefits.\n12. Representation and Promise. Employee has not suffered any job-related wrongs or injuries, such as any type of discrimination, for which\nEmployee might still be entitled to compensation or relief in the future. Employee has properly reported any and all job-related wrongs or injuries for\nwhich Employee might still be entitled to compensation or relief, such as an injury for which Employee might receive a workers’ compensation\naward in the future. Employee has properly reported all hours that Employee has worked and Employee has been paid all wages, overtime,\ncommissions, compensation, benefits, and other amounts that the Company or any Released Party should have paid Employee in the past.\n13. Severability. In the event any provision of this Separation Agreement shall be found unenforceable by an arbitrator or a court of competent\njurisdiction, the provision shall be deemed modified to the extent necessary to allow enforceability of the provision as so limited, it being intended\nthat the parties shall receive the benefits contemplated herein to the fullest\nBrust, Bernd Page 5 of 7\nextent permitted by law. If a deemed modification is not satisfactory in the judgment of such arbitrator or court, the unenforceable provision shall be\ndeemed deleted, and the validity and enforceability of the remaining provisions shall not be affected thereby.\n14. Applicable Law. The validity, interpretation and performance of this Separation Agreement shall be construed and interpreted according to\nthe laws of the United States of America and the state of California.\n15. Binding on Successors. The parties agree that this Separation Agreement shall be binding on, and inure to the benefit of, Employee’s and\nthe Company’s successors, heirs and/or assigns.\n16. Full Defense. This Separation Agreement may be pled as a full and complete defense to, and may be used as a basis for an injunction\nagainst, any action, suit or other proceeding that may be prosecuted, instituted or attempted by Employee in breach hereof.\n17. Good Faith. The parties agree to do all things necessary and to execute all further documents necessary and appropriate to carry out and\neffectuate the terms and purposes of this Separation Agreement.\n18. Entire Agreement/Modification. This Separation Agreement and its attachment(s), including the Indemnification Agreement and the\nsurviving provisions of the Confidentiality Agreements referenced in Paragraph 7.2 above, is intended to be the entire agreement between the parties\nrelating to the termination of Employee’s employment and any claims or future rights that Employee may have with respect to the Company and any\nReleased Party. As such, this Separation Agreement and the incorporated Confidentiality Agreements supersede and cancel any and all other and\nprior agreements, written or oral, and represent the entirety of the agreements between Employee and the Company or its affiliates, including any\npredecessor or merged entities, regarding this subject matter. It is agreed that there are no collateral agreements or representations, written or oral,\nregarding the terms and conditions of Employee’s separation of employment with the Company and settlement of all claims between the parties\nother than those set forth in this Separation Agreement, the Indemnification Agreement, and the surviving provisions of the Confidentiality\nAgreements. This Separation Agreement may be amended only by a written instrument executed by all parties hereto.\n19. The Older Workers’ Benefit Protection Act. This Separation Agreement is intended to satisfy the requirements of the Older Workers’\nBenefit Protection Act, 29 U.S.C. § 626(f) (“OWBPA”). Employee is advised to consult with an attorney before executing this Separation\nAgreement.\n19.1. Acknowledgments/Time to Consider. Employee acknowledges and agrees that (a) Employee has read and understands the terms of\nthis Separation Agreement; (b) this Separation Agreement advises Employee in writing to consult with an attorney before executing this Separation\nAgreement; (c) Employee has obtained and considered such legal counsel as Employee deems necessary; (d) Employee has been given at least\ntwenty-one (21) days to consider whether or not to enter into this Separation Agreement (although Employee may elect not to use the full\nconsideration period at Employee’s option); (e) and that by signing this Separation Agreement, Employee acknowledges that Employee does so\nfreely, knowingly, and voluntarily. Employee agrees that any changes made to this Separation Agreement, whether material or not material, made\nprior to Employee’s signing this Separation Agreement will not restart the time period to review and consider it. If Employee elects to sign this\nBrust, Bernd Page 6 of 7\nSeparation Agreement, Employee must return it no later than the close of business on the twenty-first (21st) day after receiving this agreement to the\nCompany at the following address: Lara de Leon, Life Technologies Corporation, 5791 Van Allen Way, Carlsbad, CA 92008.\n19.2. Revocation/Effective Date. Employee may revoke his or her acceptance of this Separation Agreement at any time during the seven\n(7) days after signing it. To be effective, Employee’s revocation must be made in writing and returned to the Company at the address provided in the\nabove Paragraph 19.1, by the close of business on the seventh day after it was signed. If Employee does not revoke his or her acceptance in this\nmanner within the seven (7) day period after signing the Separation Agreement, then Employee’s acceptance of this Separation Agreement shall\nbecome binding and enforceable on the eighth day after Employee signs this Separation Agreement (“Effective Date”). The Severance Package shall\nbecome due and payable in accordance with the terms and conditions described in Paragraph 1 above and its subparts.\n19.3. Preserved Rights of Employee. This Separation Agreement does not waive or release any rights or claims that Employee may have\nunder the Age Discrimination in Employment Act that arise after the execution of this Separation Agreement. In addition, this Separation Agreement\ndoes not prohibit Employee from challenging the validity of this Agreement’s waiver and release of claims under the Age Discrimination in\nEmployment Act of 1967, as amended.\nDated: October 24, 2011 By: /s/ Bernd Brust\nBernd Brust (“Employee”)\nON BEHALF OF\nLIFE TECHNOLOGIES CORPORATION\nDated: October 24, 2011 By: /s/ Pete Leddy\nIts: SVP, Human Resources\nBrust, Bernd Page 7 of 7	EX-10.1 2 d244670dex101.htm CONFIDENTIAL SEPARATION AGREEMENT\nExhibit 10.1\nCONFIDENTIAL SEPARATION AGREEMENT\nAND GENERAL RELEASE OF ALL CLAIMS\nThis Confidential Separation Agreement and General Release of All Claims ("Separation Agreement") is made by and between Life\nTechnologies Corporation, and any affiliates, subsidiaries, and merged (predecessor) entities (collectively the "Company") and Bernd Brust\n("Employee") with respect to the following facts:\nA. Employee has been employed by the Company as a Head of Molecular Medicine.\nB. Employee's employment will cease effective October 25, 2011 ("Separation Date"). The Company wishes to reach an amicable separation\nwith Employee and assist Employee's transition to other employment. For the sake of clarity, the termination of Employee's employment on the\nSeparation Date is not intended to create a termination of Service (as that term is defined in the Life Technologies 2009 Equity Incentive Plan).\nC. Employee and Company entered into an Indemnification Agreement dated March 23, 2005 ("Indemnification Agreement"), which\nis\nincorporated into this Separation Agreement by reference. The parties intend that the Indemnification Agreement shall remain in full force and\neffect, notwithstanding the terms of this Separation Agreement and the Consultancy Agreement that is attached hereto as Attachment A.\nD. The parties desire to settle all claims and issues that have been, or could have been, raised in relation to Employee's employment with the\nCompany and arising out of or in any way related to the acts, transactions or occurrences between Employee, on the one hand and the Company on\nthe other hand, to date, including, but not limited to, Employee's employment with the Company or the termination of that employment, on the terms\nset forth below.\nTHEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, it is agreed by and between the undersigned as\nfollows:\n1. Severance Package. If Employee executes this Separation Agreement, does not revoke it, and returns it to the Company by the deadline\nstated in Paragraph 19, the Company agrees to provide Employee with the following payments and benefits ("Severance Package"). Employee\nacknowledges and agrees that Employee is not otherwise entitled to such Severance Package, and that this Severance Package constitutes adequate\nlegal consideration for the promises and representations made by Employee in this Separation Agreement.\n1.1. Consultancy. The Company will enter into a consultancy arrangement with Employee for a period up to, and not extending beyond,\nDecember 31, 2011 ("Consultancy Period"), at a rate of $5,000 per month. Employee understands and agrees that Employee must satisfy any\nCompany-required prerequisites to becoming a consultant, including without limitation, executing a consulting agreement with the Company,\nsubstantially similar to the form attached as Attachment A. As a consultant, Employee will be eligible to vest in those equity grants with vesting\ndates that occur during the Consultancy Period. However, Employee understands and agrees that any equity grants that do not vest during the\nConsultancy Period will be forfeited in accordance with the terms of the governing grant agreements and Company plan documents. Employee\nacknowledges and agrees that during the Consultancy Period, Employee's relationship with the Company will be that of an independent contractor,\nnot an employee of the Company. Employee further understands and agrees that if, at any time during\nBrust, Bernd\nPage 1 of 7\nthe Consultancy Period, Employee decides to perform consulting or other services for, or engage in or intend to engage in an employment\nrelationship with another company, Employee shall notify the Company prior to accepting such service and secure Company's written approval. The\nCompany reserves the right to terminate the consultancy agreement in accordance with the terms of the consulting agreement, which will result\nin\nEmployee becoming ineligible to receive any further pay or other benefits associated with the consultancy.\n1.2. Continuation of Group Health Benefits. The Company agrees to continue through the end of the month in which Employee's\nSeparation Date occurs, the same medical and dental coverage that was in effect immediately prior to the Separation Date. In addition, the Company\nwill pay for the monthly premiums required to continue Employee's group health insurance coverage for an additional two (2) months, provided\nEmployee elects to continue such benefits and remains eligible to receive such benefits in accordance with the applicable provisions of the\nConsolidated Omnibus Budget Reconciliation Act of 1985.\n1.3. Qutplacement Services. The Company agrees to provide Employee with outplacement assistance, in an amount and level decided by\nCompany, for nine (9) months. To remain eligible for Outplacement Services, Employee must commence the Outplacement Services within 60 days\nafter the completion of the Consultancy Period, otherwise the benefits will expire. In no event will Employee receive a cash payment or other\nconsideration in lieu of the Outplacement Services.\n2. Accrued and Vested Benefits. The parties agree that Employee shall receive any and all benefits due to Employee upon termination of\nemployment in accordance with Life Technologies' policies and benefits plans, including, without limitation, accrued but unused vacation pay, if\napplicable, and any vested pension or other vested retirement benefits.\n3. General Release.\n3.1. Except for the claims identified in the last sentence of this Paragraph 3.1, Employee unconditionally, irrevocably and absolutely\nreleases (i.e., "gives up") and discharges the Company and any parent and subsidiary corporations, divisions and affiliated corporations, partnerships\nor other affiliated entities of the Company, past and present, including Invitrogen Corporation, Applera Corporation, and Applied Biosystems, Inc.,\nas well as the Company's employees, officers, directors, agents, shareholders, successors and assigns (collectively, "Released Parties") from all\nknown and unknown claims that Employee may presently have related in any way to the transactions or occurrences between Employee and any\nReleased Party. This general release includes, but is not limited to, Employee's employment with the Company, the termination of Employee's\nemployment, and all other losses, liabilities, claims, charges, demands and causes of action, known or unknown, suspected or unsuspected, arising\ndirectly or indirectly out of or in any way connected with Employee's employment with the Company. This release is intended to have the\nbroadest\npossible application and includes, but is not limited to, any tort, contract, common law, constitutional or other statutory claims arising under federal,\nstate or local law, including, but not limited to, alleged violations of the Worker Adjustment and Retraining Notification Act, 29 U.S.C. 8 2101, et\nseq.; Title VII of the Civil Rights Act of 1964, 42 U.S.C. 8 2000e, et seq., as amended; the Equal Pay Act, 29 U.S.C. 8 206, as amended; the\nAmericans with Disabilities Act, 42 U.S.C. 8 12101, et seq., as amended; the Age Discrimination in Employment Act of 1967, 29 U.S.C. 8 621, et\nseq., as amended; the Employee Retirement Income Security Act, 29 U.S.C. 8 1001 et seq., as amended; the California Labor Code and Fair\nEmployment and Housing Act, and the anti-discrimination laws of the state in which Employee was employed; all claims for reprisal or retaliation\nunder federal or state law;\nBrust, Bernd\nPage 2 of 7\nany claims for back pay, front pay, liquidated damages, compensatory or punitive damages, and injunctive relief; and all claims for attorneys' fees,\ncosts and expenses. However, this general release is not intended to bar or release any claims that, by law or statute, may not be waived, such as\nclaims for workers' compensation benefits, any challenge to the validity of Employee's release of claims under the Age Discrimination in\nEmployment Act of 1967, as amended, as set forth in this Separation Agreement and unemployment insurance benefits.\n3.2. Employee acknowledges that Employee later may discover facts or law different from, or in addition to, the facts or law that\nEmployee knows or believes to be true at the time Employee released the claims described in this Separation Agreement. Employee agrees,\nnonetheless, that this Separation Agreement and the release contained in it shall be and remain effective in all respects notwithstanding such different\nor additional facts or the discovery of them.\n3.3. Employee declares and represents that Employee intends this Separation Agreement to be complete and not subject to any claim of\nmistake, and that the release herein expresses a full and complete release of all claims, known and unknown, suspected or unsuspected and,\nregardless of the adequacy or inadequacy of the consideration, Employee intends the release herein to be final and complete. Employee executes this\nSeparation Agreement and, where applicable, with the full knowledge that this Separation Agreement's general release covers all possible claims\n(other than those claims specifically excepted from the release) against the Released Parties, to the fullest extent permitted by law.\n3.4. Employee expressly waives Employee's right to recovery of any type, including damages or reinstatement, in any administrative or\ncourt action, whether state or federal, and whether brought by Employee or on Employee's behalf, related in any way to the matters released herein.\n4. California Civil Code Section 1542 Waiver. Employee intentionally releases claims that Employee does not know he or she might have and\nthat, with hindsight, Employee might regret having released. Employee expressly acknowledges and agrees that all rights under Section 1542 of the\nCalifornia Civil Code are expressly waived. That section provides:\nA GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN\nHIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE\nMATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.\n5. Representation Concerning Filing of Legal Actions. Employee represents that, as of the date Employee signed this Separation Agreement,\nEmployee has not filed any lawsuits, charges, complaints, petitions, claims or other accusatory pleadings against the Company or any Released Party\nin any court or with any governmental agency.\n6.\nNondisparagement. Employee agrees that Employee will not make any voluntary statements, written or oral, or cause or encourage others to\nmake any such statements that defame, disparage or in any way criticize the personal and/or business reputations, practices or conduct of the\nCompany or any Released Party.\nBrust, Bernd\nPage 3 of 7\n7. Confidentiality and Return of Company. Property..\n7.1. Confidential Separation Information. Employee agrees that the terms and conditions of this Separation Agreement and any\ndiscussions between Employee and the Company or any Released Party that led to the terms and conditions of this Separation Agreement\n(collectively referred to as the "Confidential Separation Information") are intended to remain confidential between Employee and the Company\nand/or\nsuch\nReleased\nParty.\nEmployee\nfurther\nagrees\nthat\nEmployee\nwill\nnot\ndisclose\nthe\nConfidential\nSeparation\nInformation\nto\nany\nother\npersons,\nexcept that Employee may disclose such information to Employee's immediate family members and to Employee's attorney(s) and/or accountant(s),\nif any, to the extent needed for legal advice or income tax reporting purposes. When releasing this information to any such person, Employee shall\nadvise the person receiving the information of its confidential nature and treatment as such. Employee, and anyone to whom the Confidential\nSeparation Information has been disclosed, will not respond to, or in any way participate in or contribute to, any public discussion, notice or other\npublicity concerning the Confidential Separation Information. Without limiting the generality of the foregoing, Employee specifically agrees that\nneither Employee, Employee's immediate family, Employee's attorney, nor Employee's accountant, if any, shall disclose the Confidential Separation\nInformation to any current, former or prospective employee of the Company. Nothing in this section will preclude Employee from disclosing\ninformation required in response to a subpoena duly issued by a court of law or a government agency having jurisdiction or power to compel such\ndisclosure, or from giving full, truthful and cooperative answers in response to a duly issued subpoena.\n7.2. Confidential or Proprietary. Information. Employee also agrees and represents that Employee has not and will not use, misuse,\nremove from the Company's premises without permission, make unauthorized copies of or disclose any confidential or proprietary information of\nthe Company or any affiliated or related entities, including but not limited to, their trade secrets, copyrighted information, customer lists, any\ninformation encompassed in any research and development reports, work in progress, drawings, software, computer files or models, designs, plans,\nproposals, marketing and sales programs, financial projections, and all concepts or ideas, materials or information related to the business or sales\nof\nthe Company and any affiliated or related entities. Employee acknowledges signing either: (i) Invitrogen's Information and Technology Agreement\nand Trade Secrets Policy; (ii) Applied Biosystems Conflict of Interest and Confidentiality Agreement; and/or (iii) Life Technologies' Information\nand Technology Agreement and Confidential Information and Trade Secrets Agreement (collectively referred to as the "Confidentiality\nAgreements") and agrees that the terms and conditions of any and all such agreements (including those signed prior to the merger or acquisition of\nany former employer with the Company) are expressly incorporated herein by reference, and survive the termination of Employee's employment.\nEmployee also understands and agrees that Employee's obligations under any Insider Trading policy extend beyond Employee's employment with\nthe Company.\n7.3. Return of Company Property.. Employee understands and agrees that as a condition of receiving the Severance Package described in\nParagraph 1, all Company property must be returned to the Company on or before the Separation Date. By signing this Separation Agreement,\nEmployee represents and warrants that Employee will return to the Company, on or before the Separation Date, all Company property, including but\nnot limited to all confidential and proprietary information, as described in Paragraph 7.2 above, and all materials and documents containing\ntrade\nsecrets and copyrighted materials, including all copies and excerpts of the same.\nBrust, Bernd\nPage 4 of 7\n7.4. Promise Not to Solicit. To prevent Employee from inevitably breaking the promises Employee has just made in Paragraph 7.2 above,\nEmployee further agrees that, for twelve (12) months from the Separation Date (a) as to any customer or supplier of the Company or its affiliates\nwith whom Employee had dealings or about whom Employee acquired proprietary information during Employee's employment, Employee will not\nsolicit or attempt to solicit the customer or supplier to do business with any person or entity to the detriment of the Company where such solicitation\nuses the confidential or proprietary information of the Company; and (b) Employee will not solicit for employment any person who is, or within the\npreceding six (6) months was, an officer, manager, employee, or consultant of the Company or its affiliates, unless the individual was no longer\nemployed by the Company before Employee's solicitation.\n8. Cooperation. Employee agrees that Employee will fully cooperate with Company in connection with any claims, lawsuits, or proceedings\nthat relate in any manner to Employee's conduct or duties at Company or that are based on facts about which Employee obtained personal\nknowledge while employed at Company. Any reasonable out-of-pocket expenses incurred by Employee associated with such cooperation will be\npaid for or reimbursed by the Company.\n9. Enforcement. If Employee breaches any of the terms in Paragraphs 6 or 7 above or their subparts, the Company will immediately cease\nproviding the Severance Package described in Paragraph 1 above, to the extent those payments and benefits have not yet been provided, to the fullest\nextent permitted by law. This shall in no way limit the Company's right to pursue all legal and equitable remedies available to it as a result of\nEmployee's breach of the Separation Agreement, to the fullest extent permitted by law.\n10. No Admissions. By entering into this Separation Agreement, the Company and any Released Party make no admission that they have\nengaged, or are now engaging, in any wrongdoing. The parties understand and acknowledge that this Separation Agreement is not an admission\nof\nliability and shall not be used or construed as such in any legal or administrative proceeding.\n11. No Other Severance Benefits. Employee acknowledges and agrees that the Severance Package provided pursuant to this Agreement is\nin\nlieu of any other severance benefits to which Employee may be eligible under any other agreement and/or severance plan or practice (including but\nnot limited to the Life Technologies Corporation Executive Officer Severance Plan) and Employee waives any and all rights to such other severance\nbenefits.\n12. Representation and Promise. Employee has not suffered any job-related wrongs or injuries, such as any type of discrimination, for which\nEmployee might still be entitled to compensation or relief in the future. Employee has properly reported any and all job-related wrongs or injuries\nfor\nwhich Employee might still be entitled to compensation or relief, such as an injury for which Employee might receive a workers' compensation\naward in the future. Employee has properly reported all hours that Employee has worked and Employee has been paid all wages, overtime,\ncommissions, compensation, benefits, and other amounts that the Company or any Released Party should have paid Employee in the past.\n13. Severability.. In the event any provision of this Separation Agreement shall be found unenforceable by an arbitrator or a court of competent\njurisdiction, the provision shall be deemed modified to the extent necessary to allow enforceability of the provision as so limited, it being intended\nthat the parties shall receive the benefits contemplated herein to the fullest\nBrust, Bernd\nPage 5 of 7\nextent permitted by law. If a deemed modification is not satisfactory in the judgment of such arbitrator or court, the unenforceable provision shall be\ndeemed deleted, and the validity and enforceability of the remaining provisions shall not be affected thereby.\n14. Applicable Law. The validity, interpretation and performance of this Separation Agreement shall be construed and interpreted according to\nthe laws of the United States of America and the state of California.\n15. Binding on Successors The parties agree that this Separation Agreement shall be binding on, and inure to the benefit of, Employee's and\nthe Company's successors, heirs and/or assigns.\n16. Full Defense. This Separation Agreement may be pled as a full and complete defense to, and may be used as a basis for an injunction\nagainst, any action, suit or other proceeding that may be prosecuted, instituted or attempted by Employee in breach hereof.\n17. Good Faith. The parties agree to do all things necessary and to execute all further documents necessary and appropriate to carry out and\neffectuate the terms and purposes of this Separation Agreement.\n18. Entire Agreement/Modification This Separation Agreement and its attachment(s), including the Indemnification Agreement and the\nsurviving provisions of the Confidentiality Agreements referenced in Paragraph 7.2 above, is intended to be the entire agreement between the parties\nrelating to the termination of Employee's employment and any claims or future rights that Employee may have with respect to the Company and any\nReleased Party. As such, this Separation Agreement and the incorporated Confidentiality Agreements supersede and cancel any and all other and\nprior agreements, written or oral, and represent the entirety of the agreements between Employee and the Company or its affiliates, including any\npredecessor or merged entities, regarding this subject matter. It is agreed that there are no collateral agreements or representations, written or oral,\nregarding the terms and conditions of Employee's separation of employment with the Company and settlement of all claims between the parties\nother than those set forth in this Separation Agreement, the Indemnification Agreement, and the surviving provisions of the Confidentiality\nAgreements. This Separation Agreement may be amended only by a written instrument executed by all parties hereto.\n19. The Older Workers' Benefit Protection Act. This Separation Agreement is intended to satisfy the requirements of the Older Workers'\nBenefit Protection Act, 29 U.S.C. S 626(f) ("OWBPA"). Employee is advised to consult with an attorney before executing this Separation\nAgreement.\n19.1. Acknowledgments/Time to Consider. Employee acknowledges and agrees that (a) Employee has read and understands the terms of\nthis Separation Agreement; (b) this Separation Agreement advises Employee in writing to consult with an attorney before executing this Separation\nAgreement; (c) Employee has obtained and considered such legal counsel as Employee deems necessary; (d) Employee has been given at least\ntwenty-one (21) days to consider whether or not to enter into this Separation Agreement (although Employee may elect not to use the full\nconsideration period at Employee's option); (e) and that by signing this Separation Agreement, Employee acknowledges that Employee does\nso\nfreely, knowingly, and voluntarily. Employee agrees that any changes made to this Separation Agreement, whether material or not material, made\nprior to Employee's signing this Separation Agreement will not restart the time period to review and consider it. If Employee elects to sign this\nBrust, Bernd\nPage 6 of 7\nSeparation Agreement, Employee must return it no later than the close of business on the twenty-first (21st) day after receiving this agreement to the\nCompany at the following address: Lara de Leon, Life Technologies Corporation, 5791 Van Allen Way, Carlsbad, CA 92008.\n19.2. Revocation/Effective Date. Employee may revoke his or her acceptance of this Separation Agreement at any time during the seven\n(7) days after signing it. To be effective, Employee's revocation must be made in writing and returned to the Company at the address provided in the\nabove\nParagraph 19.1, by the close of business on the seventh day after it was signed. If Employee does not revoke his or her acceptance in this\nmanner within the seven (7) day period after signing the Separation Agreement, then Employee's acceptance of this Separation Agreement shall\nbecome binding and enforceable on the eighth day after Employee signs this Separation Agreement ("Effective Date"). The Severance Package shall\nbecome due and payable in accordance with the terms and conditions described in Paragraph 1 above and its subparts.\n19.3. Preserved Rights of Employee. This Separation Agreement does not waive or release any rights or claims that Employee may have\nunder the Age Discrimination in Employment Act that arise after the execution of this Separation Agreement. In addition, this Separation Agreement\ndoes not prohibit Employee from challenging the validity of this Agreement's waiver and release of claims under the Age Discrimination in\nEmployment Act of 1967, as amended.\nDated: October 24, 2011\nBy: /s/ Bernd Brust\nBernd Brust ("Employee")\nON BEHALF OF\nLIFE TECHNOLOGIES CORPORATION\nDated: October 24, 2011\nBy: /s/ Pete Leddy\nIts: SVP, Human Resources\nBrust, Bernd\nPage 7 of 7	EX-10.1 2 d244670dex101.htm CONFIDENTIAL SEPARATION AGREEMENT\nExhibit 10.1\nCONFIDENTIAL SEPARATION AGREEMENT\nAND GENERAL RELEASE OF ALL CLAIMS\nThis Confidential Separation Agreement and General Release of All Claims (“Separation Agreement”) is made by and between Life\nTechnologies Corporation, and any affiliates, subsidiaries, and merged (predecessor) entities (collectively the “Company”) and Bernd Brust\n(“Employee”) with respect to the following facts:\nA. Employee has been employed by the Company as a Head of Molecular Medicine.\nB. Employee’s employment will cease effective October 25, 2011 (“Separation Date”). The Company wishes to reach an amicable separation\nwith Employee and assist Employee’s transition to other employment. For the sake of clarity, the termination of Employee’s employment on the\nSeparation Date is not intended to create a termination of Service (as that term is defined in the Life Technologies 2009 Equity Incentive Plan).\nC. Employee and Company entered into an Indemnification Agreement dated March 23, 2005 (“Indemnification Agreement”), which is\nincorporated into this Separation Agreement by reference. The parties intend that the Indemnification Agreement shall remain in full force and\neffect, notwithstanding the terms of this Separation Agreement and the Consultancy Agreement that is attached hereto as Attachment A.\nD. The parties desire to settle all claims and issues that have been, or could have been, raised in relation to Employee’s employment with the\nCompany and arising out of or in any way related to the acts, transactions or occurrences between Employee, on the one hand and the Company on\nthe other hand, to date, including, but not limited to, Employee’s employment with the Company or the termination of that employment, on the terms\nset forth below.\nTHEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, it is agreed by and between the undersigned as\nfollows:\n1. Severance Package. If Employee executes this Separation Agreement, does not revoke it, and returns it to the Company by the deadline\nstated in Paragraph 19, the Company agrees to provide Employee with the following payments and benefits (“Severance Package”). Employee\nacknowledges and agrees that Employee is not otherwise entitled to such Severance Package, and that this Severance Package constitutes adequate\nlegal consideration for the promises and representations made by Employee in this Separation Agreement.\n1.1 . Consultancy. The Company will enter into a consultancy arrangement with Employee for a period up to, and not extending beyond,\nDecember 31, 2011 (“Consultancy Period”), at a rate of $5,000 per month. Employee understands and agrees that Employee must satisfy any\nCompany-required prerequisites to becoming a consultant, including without limitation, executing a consulting agreement with the Company,\nsubstantially similar to the form attached as Attachment A. As a consultant, Employee will be eligible to vest in those equity grants with vesting\ndates that occur during the Consultancy Period. However, Employee understands and agrees that any equity grants that do not vest during the\nConsultancy Period will be forfeited in accordance with the terms of the governing grant agreements and Company plan documents. Employee\nacknowledges and agrees that during the Consultancy Period, Employee’s relationship with the Company will be that of an independent contractor,\nnot an employee of the Company. Employee further understands and agrees that if, at any time during\nBrust, Bernd\nPage1of7\nthe Consultancy Period, Employee decides to perform consulting or other services for, or engage in or intend to engage in an employment\nrelationship with another company, Employee shall notify the Company prior to accepting such service and secure Company’s written approval. The\nCompany reserves the right to terminate the consultancy agreement in accordance with the terms of the consulting agreement, which will result in\nEmployee becoming ineligible to receive any further pay or other benefits associated with the consultancy.\n1.2 . Continuation of Group Health Benefits. The Company agrees to continue through the end of the month in which Employee’s\nSeparation Date occurs, the same medical and dental coverage that was in effect immediately prior to the Separation Date. In addition, the Company\nwill pay for the monthly premiums required to continue Employee’s group health insurance coverage for an additional two (2) months, provided\nEmployee elects to continue such benefits and remains eligible to receive such benefits in accordance with the applicable provisions of the\nConsolidated Omnibus Budget Reconciliation Act of 1985.\n1.3 . Outplacement Services. The Company agrees to provide Employee with outplacement assistance, in an amount and level decided by\nCompany, for nine (9) months. To remain eligible for Outplacement Services, Employee must commence the Outplacement Services within 60 days\nafter the completion of the Consultancy Period, otherwise the benefits will expire. In no event will Employee receive a cash payment or other\nconsideration in lieu of the Outplacement Services.\n2. Accrued and Vested Benefits. The parties agree that Employee shall receive any and all benefits due to Employee upon termination of\nemployment in accordance with Life Technologies’ policies and benefits plans, including, without limitation, accrued but unused vacation pay, if\napplicable, and any vested pension or other vested retirement benefits.\n3. General Release.\n3.1 . Except for the claims identified in the last sentence of this Paragraph 3.1, Employee unconditionally, irrevocably and absolutely\nreleases (i.e., “gives up”) and discharges the Company and any parent and subsidiary corporations, divisions and affiliated corporations, partnerships\nor other affiliated entities of the Company, past and present, including Invitrogen Corporation, Applera Corporation, and Applied Biosystems, Inc.,\nas well as the Company’s employees, officers, directors, agents, shareholders, successors and assigns (collectively, “Released Parties”), from all\nknown and unknown claims that Employee may presently have related in any way to the transactions or occurrences between Employee and any\nReleased Party. This general release includes, but is not limited to, Employee’s employment with the Company, the termination of Employee’s\nemployment, and all other losses, liabilities, claims, charges, demands and causes of action, known or unknown, suspected or unsuspected, arising\ndirectly or indirectly out of or in any way connected with Employee’s employment with the Company. This release is intended to have the broadest\npossible application and includes, but is not limited to, any tort, contract, common law, constitutional or other statutory claims arising under federal,\nstate or local law, including, but not limited to, alleged violations of the Worker Adjustment and Retraining Notification Act, 29 U.S .C. § 2101, et\nseq.; Title VII of the Civil Rights Act of 1964, 42 U.S .C. § 2000e, et seq., as amended; the Equal Pay Act, 29 U.S.C. § 206, as amended; the\nAmericans with Disabilities Act, 42 U.S.C. § 12101, et seq., as amended; the Age Discrimination in Employment Act of 1967, 29 U.S .C. § 621, et\nseq., as amended; the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq., as amended; the California Labor Code and Fair\nEmployment and Housing Act, and the anti-discrimination laws of the state in which Employee was employed; all claims for reprisal or retaliation\nunder federal or state law;\nBrust, Bernd\nPage2of7\nany claims for back pay, front pay, liquidated damages, compensatory or punitive damages, and injunctive relief; and all claims for attorneys’ fees,\ncosts and expenses. However, this general release is not intended to bar or release any claims that, by law or statute, may not be waived, such as\nclaims for workers’ compensation benefits, any challenge to the validity of Employee’s release of claims under the Age Discrimination in\nEmployment Act of 1967, as amended, as set forth in this Separation Agreement and unemployment insurance benefits.\n3.2 . Employee acknowledges that Employee later may discover facts or law different from, or in addition to, the facts or law that\nEmployee knows or believes to be true at the time Employee released the claims described in this Separation Agreement. Employee agrees,\nnonetheless, that this Separation Agreement and the release contained in it shall be and remain effective in all respects notwithstanding such different\nor additional facts or the discovery of them.\n3.3 . Employee declares and represents that Employee intends this Separation Agreement to be complete and not subject to any claim of\nmistake, and that the release herein expresses a full and complete release of all claims, known and unknown, suspected or unsuspected and,\nregardless of the adequacy or inadequacy of the consideration, Employee intends the release herein to be final and complete. Employee executes this\nSeparation Agreement and, where applicable, with the full knowledge that this Separation Agreement’s general release covers all possible claims\n(other than those claims specifically excepted from the release) against the Released Parties, to the fullest extent permitted by law.\n3.4 . Employee expressly waives Employee’s right to recovery of any type, including damages or reinstatement, in any administrative or\ncourt action, whether state or federal, and whether brought by Employee or on Employee’s behalf, related in any way to the matters released herein.\n4. California Civil Code Section 1542 Waiver. Employee intentionally releases claims that Employee does not know he or she might have and\nthat, with hindsight, Employee might regret having released. Employee expressly acknowledges and agrees that all rights under Section 1542 of the\nCalifornia Civil Code are expressly waived. That section provides:\nA GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN\nHIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE\nMATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.\n5. Representation Concerning Filing of Legal Actions. Employee represents that, as of the date Employee signed this Separation Agreement,\nEmployee has not filed any lawsuits, charges, complaints, petitions, claims or other accusatory pleadings against the Company or any Released Party\nin any court or with any governmental agency.\n6. Nondisparagement. Employee agrees that Employee will not make any voluntary statements, written or oral, or cause or encourage others to\nmake any such statements that defame, disparage or in any way criticize the personal and/or business reputations, practices or conduct of the\nCompany or any Released Party.\nBrust, Bernd\nPage3of7\n7. Confidentiality and Return of Company Property.\n7.1 . Confidential Separation Information. Employee agrees that the terms and conditions of this Separation Agreement and any\ndiscussions between Employee and the Company or any Released Party that led to the terms and conditions of this Separation Agreement\n(collectively referred to as the “Confidential Separation Information”) are intended to remain confidential between Employee and the Company\nand/or such Released Party. Employee further agrees that Employee will not disclose the Confidential Separation Information to any other persons,\nexcept that Employee may disclose such information to Employee’s immediate family members and to Employee’s attorney(s) and/or accountant(s),\nif any, to the extent needed for legal advice or income tax reporting purposes. When releasing this information to any such person, Employee shall\nadvise the person receiving the information of its confidential nature and treatment as such. Employee, and anyone to whom the Confidential\nSeparation Information has been disclosed, will not respond to, or in any way participate in or contribute to, any public discussion, notice or other\npublicity concerning the Confidential Separation Information. Without limiting the generality of the foregoing, Employee specifically agrees that\nneither Employee, Employee’s immediate family, Employee’s attorney, nor Employee’s accountant, if any, shall disclose the Confidential Separation\nInformation to any current, former or prospective employee of the Company. Nothing in this section will preclude Employee from disclosing\ninformation required in response to a subpoena duly issued by a court of law or a government agency having jurisdiction or power to compel such\ndisclosure, or from giving full, truthful and cooperative answers in response to a duly issued subpoena.\n7.2 . Confidential or Proprietary Information. Employee also agrees and represents that Employee has not and will not use, misuse,\nremove from the Company’s premises without permission, make unauthorized copies of or disclose any confidential or proprietary information of\nthe Company or any affiliated or related entities, including but not limited to, their trade secrets, copyrighted information, customer lists, any\ninformation encompassed in any research and development reports, work in progress, drawings, software, computer files or models, designs, plans,\nproposals, marketing and sales programs, financial projections, and all concepts or ideas, materials or information related to the business or sales of\nthe Company and any affiliated or related entities. Employee acknowledges signing either: (i) Invitrogen’s Information and Technology Agreement\nand Trade Secrets Policy; (ii) Applied Biosystems Conflict of Interest and Confidentiality Agreement; and/or (iii) Life Technologies’ Information\nand Technology Agreement and Confidential Information and Trade Secrets Agreement (collectively referred to as the “Confidentiality\nAgreements”) and agrees that the terms and conditions of any and all such agreements (including those signed prior to the merger or acquisition of\nany former employer with the Company) are expressly incorporated herein by reference, and survive the termination of Employee’s employment.\nEmployee also understands and agrees that Employee’s obligations under any Insider Trading policy extend beyond Employee’s employment with\nthe Company.\n7.3 . Return of Company Property. Employee understands and agrees that as a condition of receiving the Severance Package described in\nParagraph 1, all Company property must be returned to the Company on or before the Separation Date. By signing this Separation Agreement,\nEmployee represents and warrants that Employee will return to the Company, on or before the Separation Date, all Company property, including but\nnot limited to all confidential and proprietary information, as described in Paragraph 7.2 above, and all materials and documents containing trade\nsecrets and copyrighted materials, including all copies and excerpts of the same.\nBrust, Bernd\nPage4of7\n7.4. Promise Not to Solicit. To prevent Employee from inevitably breaking the promises Employee has just made in Paragraph 7.2 above,\nEmployee further agrees that, for twelve (12) months from the Separation Date (a) as to any customer or supplier of the Company or its affiliates\nwith whom Employee had dealings or about whom Employee acquired proprietary information during Employee’s employment, Employee will not\nsolicit or attempt to solicit the customer or supplier to do business with any person or entity to the detriment of the Company where such solicitation\nuses the confidential or proprietary information of the Company; and (b) Employee will not solicit for employment any person who is, or within the\npreceding six (6) months was, an officer, manager, employee, or consultant of the Company or its affiliates, unless the individual was no longer\nemployed by the Company before Employee’s solicitation.\n8. Cooperation. Employee agrees that Employee will fully cooperate with Company in connection with any claims, lawsuits, or proceedings\nthat relate in any manner to Employee’s conduct or duties at Company or that are based on facts about which Employee obtained personal\nknowledge while employed at Company. Any reasonable out-of-pocket expenses incurred by Employee associated with such cooperation will be\npaid for or reimbursed by the Company.\n9. Enforcement. If Employee breaches any of the terms in Paragraphs 6 or 7 above or their subparts, the Company will immediately cease\nproviding the Severance Package described in Paragraph 1 above, to the extent those payments and benefits have not yet been provided, to the fullest\nextent permitted by law. This shall in no way limit the Company’s right to pursue all legal and equitable remedies available to it as a result of\nEmployee’s breach of the Separation Agreement, to the fullest extent permitted by law.\n10. No Admissions. By entering into this Separation Agreement, the Company and any Released Party make no admission that they have\nengaged, or are now engaging, in any wrongdoing. The parties understand and acknowledge that this Separation Agreement is not an admission of\nliability and shall not be used or construed as such in any legal or administrative proceeding.\n11. No Other Severance Benefits. Employee acknowledges and agrees that the Severance Package provided pursuant to this Agreement is in\nlieu of any other severance benefits to which Employee may be eligible under any other agreement and/or severance plan or practice (including but\nnot limited to the Life Technologies Corporation Executive Officer Severance Plan) and Employee waives any and all rights to such other severance\nbenefits.\n12. Representation and Promise. Employee has not suffered any job-related wrongs or injuries, such as any type of discrimination, for which\nEmployee might still be entitled to compensation or relief in the future. Employee has properly reported any and all job-related wrongs or injuries for\nwhich Employee might still be entitled to compensation or relief, such as an injury for which Employee might receive a workers’ compensation\naward in the future. Employee has properly reported all hours that Employee has worked and Employee has been paid all wages, overtime,\ncommissions, compensation, benefits, and other amounts that the Company or any Released Party should have paid Employee in the past.\n13. Severability. In the event any provision of this Separation Agreement shall be found unenforceable by an arbitrator or a court of competent\njurisdiction, the provision shall be deemed modified to the extent necessary to allow enforceability of the provision as so limited, it being intended\nthat the parties shall receive the benefits contemplated herein to the fullest\nBrust, Bernd\nPage5of7\nextent permitted by law. If a deemed modification is not satisfactory in the judgment of such arbitrator or court, the unenforceable provision shall be\ndeemed deleted, and the validity and enforceability of the remaining provisions shall not be affected thereby.\n14. Applicable Law. The validity, interpretation and performance of this Separation Agreement shall be construed and interpreted according to\nthe laws of the United States of America and the state of California.\n15. Binding on Successors. The parties agree that this Separation Agreement shall be binding on, and inure to the benefit of, Employee’s and\nthe Company’s successors, heirs and/or assigns.\n16. Full Defense. This Separation Agreement may be pled as a full and complete defense to, and may be used as a basis for an injunction\nagainst, any action, suit or other proceeding that may be prosecuted, instituted or attempted by Employee in breach hereof.\n17. Good Faith. The parties agree to do all things necessary and to execute all further documents necessary and appropriate to carry out and\neffectuate the terms and purposes of this Separation Agreement.\n18. Entire Agreement/Modification. This Separation Agreement and its attachment(s), including the Indemnification Agreement and the\nsurviving provisions of the Confidentiality Agreements referenced in Paragraph 7.2 above, is intended to be the entire agreement between the parties\nrelating to the termination of Employee’s employment and any claims or future rights that Employee may have with respect to the Company and any\nReleased Party. As such, this Separation Agreement and the incorporated Confidentiality Agreements supersede and cancel any and all other and\nprior agreements, written or oral, and represent the entirety of the agreements between Employee and the Company or its affiliates, including any\npredecessor or merged entities, regarding this subject matter. It is agreed that there are no collateral agreements or representations, written or oral,\nregarding the terms and conditions of Employee’s separation of employment with the Company and settlement of all claims between the parties\nother than those set forth in this Separation Agreement, the Indemnification Agreement, and the surviving provisions of the Confidentiality\nAgreements. This Separation Agreement may be amended only by a written instrument executed by all parties hereto.\n19. The Older Workers’ Benefit Protection Act. This Separation Agreement is intended to satisfy the requirements of the Older Workers’\nBenefit Protection Act, 29 U.S.C. § 626(f) (“OWBPA”). Employee is advised to consult with an attorney before executing this Separation\nAgreement.\n19.1. Acknowledgments/Time to Consider. Employee acknowledges and agrees that (a) Employee has read and understands the terms of\nthis Separation Agreement; (b) this Separation Agreement advises Employee in writing to consult with an attorney before executing this Separation\nAgreement; (c) Employee has obtained and considered such legal counsel as Employee deems necessary; (d) Employee has been given at least\ntwenty-one (21) days to consider whether or not to enter into this Separation Agreement (although Employee may elect not to use the full\nconsideration period at Employee’s option); (e) and that by signing this Separation Agreement, Employee acknowledges that Employee does so\nfreely, knowingly, and voluntarily. Employee agrees that any changes made to this Separation Agreement, whether material or not material, made\nprior to Employee’s signing this Separation Agreement will not restart the time period to review and consider it. If Employee elects to sign this\nBrust, Bernd\nPage6of7\nSeparation Agreement, Employee must return it no later than the close of business on the twenty-first (21st) day after receiving this agreement to the\nCompany at the following address: Lara de Leon, Life Technologies Corporation, 5791 Van Allen Way, Carlsbad, CA 92008.\n19.2. Revocation/Effective Date. Employee may revoke his or her acceptance of this Separation Agreement at any time during the seven\n(7) days after signing it. To be effective, Employee’s revocation must be made in writing and returned to the Company at the address provided in the\nabove Paragraph 19.1, by the close of business on the seventh day after it was signed. If Employee does not revoke his or her acceptance in this\nmanner within the seven (7) day period after signing the Separation Agreement, then Employee’s acceptance of this Separation Agreement shall\nbecome binding and enforceable on the eighth day after Employee signs this Separation Agreement (“Effective Date”). The Severance Package shall\nbecome due and payable in accordance with the terms and conditions described in Paragraph 1 above and its subparts.\n19.3. Preserved Rights of Employee. This Separation Agreement does not waive or release any rights or claims that Employee may have\nunder the Age Discrimination in Employment Act that arise after the execution of this Separation Agreement. In addition, this Separation Agreement\ndoes not prohibit Employee from challenging the validity of this Agreement’s waiver and release of claims under the Age Discrimination in\nEmployment Act of 1967, as amended.\nDated: October 24, 2011\nBy: /s/ Bernd Brust\nBernd Brust (“Employee”)\nON BEHALF OF\nLIFE TECHNOLOGIES CORPORATION\nDated: October 24, 2011\nBy: /s/ Pete Leddy\nIts: SVP, Human Resources\nBrust, Bernd\nPage7of7
+b20bcd63938e6e0ec5128ece060d9748.pdf	effective_date jurisdiction party term	EX-99.(D)(G) 16 d440115dex99dg.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(G)\nConfidentiality Agreement\nThis Mutual Confidentiality Agreement (the “Agreement”), dated as of October 15, 2012 and effective as of September 20, 2012 (the “Effective\nDate”), by and between Contran Corporation, a Delaware corporation (“Contran”), and Precision Castparts Corp. (“PCP”), an Oregon corporation\n(collectively the “Parties” and individually a “Party”).\nContran and its affiliates are stockholders of Titanium Metals Corporation (“Timet”), a Delaware corporation. The Parties to this Agreement are\nengaged in discussions about a potential acquisition by PCP of shares of Timet owned by Contran and its affiliates (the “Potential Transaction”) and\ndesire to establish and set forth their respective obligations with respect to discussions relating to the Potential Transaction.\nIn consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the\nParties mutually agree that, without the other Party’s prior written consent, neither Party will, and will cause its directors, officers, employees, agents\nand representatives (collectively, “Representatives”) not to, disclose to any person other than (i) their respective Representatives and (ii) Timet and\nits Representatives, that discussions or negotiations are taking place concerning a Possible Transaction or any terms, conditions, status or other facts\nwith respect to a Proposed Transaction, unless such disclosure is required by law.\nCONTRAN CORPORATION\nBy: /s/ J. Mark Hollingsworth\nName: J. Mark Hollingsworth\nTitle: Vice President and General Counsel\nPRECISION CASTPARTS CORP.\nBy: /s/ Roger A. Cooke\nName: Roger A. Cooke\nTitle: Senior Vice President and General Counsel	EX-99.(D)(G) 16 d440115dex99dg.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(G)\nConfidentiality Agreement\nThis Mutual Confidentiality Agreement (the “Agreement”), dated as of October 15, 2012 and effective as of September 20, 2012 (the “Effective\nDate”), by and between Contran Corporation, a Delaware corporation (“Contran”), and Precision Castparts Corp. (“PCP”), an Oregon corporation\n(collectively the “Parties” and individually a “Party”).\nContran and its affiliates are stockholders of Titanium Metals Corporation (“Timet”), a Delaware corporation. The Parties to this Agreement are\nengaged in discussions about a potential acquisition by PCP of shares of Timet owned by Contran and its affiliates (the “Potential Transaction”) and\ndesire to establish and set forth their respective obligations with respect to discussions relating to the Potential Transaction.\nIn consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the\nParties mutually agree that, without the other Party’s prior written consent, neither Party will, and will cause its directors, officers, employees, agents\nand representatives (collectively, “Representatives”) not to, disclose to any person other than (i) their respective Representatives and (ii) Timet and\nits Representatives, that discussions or negotiations are taking place concerning a Possible Transaction or any terms, conditions, status or other facts\nwith respect to a Proposed Transaction, unless such disclosure is required by law.\nCONTRAN CORPORATION\nBy: /s/ J. Mark Hollingsworth\nName: J. Mark Hollingsworth\nTitle:  Vice President and General Counsel\nPRECISION CASTPARTS CORP.\nBy: /s/ Roger A. Cooke\nName: Roger A. Cooke\nTitle:  Senior Vice President and General Counsel	EX-99.(D)(G) 16 d440115dex99dg.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(G)\nConfidentiality Agreemen\nThis Mutual Confidentiality Agreement (the "Agreement"), dated as of October 15, 2012 and effective as of September 20, 2012 (the "Effective\nDate"), by and between Contran Corporation, a Delaware corporation ("Contran"), and Precision Castparts Corp. ("PCP"), an Oregon corporation\n(collectively the "Parties" and individually a "Party").\nContran and its affiliates are stockholders of Titanium Metals Corporation ("Timet"), a Delaware corporation. The Parties to this Agreement are\nengaged in discussions about a potential acquisition by PCP of shares of Timet owned by Contran and its affiliates (the "Potential Transaction")\nand\ndesire to establish and set forth their respective obligations with respect to discussions relating to the Potential Transaction.\nIn consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the\nParties mutually agree that, without the other Party's prior written consent, neither Party will, and will cause its directors, officers, employees, agents\nand representatives (collectively, "Representatives") not to, disclose to any person other than (i) their respective Representatives and (ii) Timet and\nits Representatives, that discussions or negotiations are taking place concerning a Possible Transaction or any terms, conditions, status or other facts\nwith respect to a Proposed Transaction, unless such disclosure is required by law.\nCONTRAN CORPORATION\nBy:\n/s/ J. Mark Hollingsworth\nName: J. Mark Hollingsworth\nTitle: Vice President and General Counsel\nPRECISION CASTPARTS CORP.\nBy: /s/ Roger A. Cooke\nName: Roger A. Cooke\nTitle: Senior Vice President and General Counsel	EX-99.(D)(G) 16 d440115dex99dg.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(G)\nConfidentiality Agreement\nThis Mutual Confidentiality Agreement (the “Agreement”), dated as of October 15, 2012 and effective as of September 20, 2012 (the “Effective\nDate”), by and between Contran Corporation, a Delaware corporation (“Contran”), and Precision Castparts Corp. (“PCP”), an Oregon corporation\n(collectively the “Parties” and individually a “Party”).\nContran and its affiliates are stockholders of Titanium Metals Corporation (“Timet”), a Delaware corporation. The Parties to this Agreement are\nengaged in discussions about a potential acquisition by PCP of shares of Timet owned by Contran and its affiliates (the “Potential Transaction”) and\ndesire to establish and set forth their respective obligations with respect to discussions relating to the Potential Transaction.\nIn consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the\nParties mutually agree that, without the other Party’s prior written consent, neither Party will, and will cause its directors, officers, employees, agents\nand representatives (collectively, “Representatives”) not to, disclose to any person other than (i) their respective Representatives and (ii) Timet and\nits Representatives, that discussions or negotiations are taking place concerning a Possible Transaction or any terms, conditions, status or other facts\nwith respect to a Proposed Transaction, unless such disclosure is required by law.\nCONTRAN CORPORATION\nBy: /s/ J. Mark Hollingsworth\nName: J. Mark Hollingsworth\nTitle: Vice President and General Counsel\nPRECISION CASTPARTS CORP.\nBy: /s/ Roger A. Cooke\nName: Roger A. Cooke\nTitle: Senior Vice President and General Counsel
+b443bb48b9961da261c46fad8d9e84b0.pdf	effective_date jurisdiction party term	EX-10.1 2 d166304dex101.htm EX-10.1\nExhibit 10.1\nMarch 15, 2016\nCONFIDENTIALITY AGREEMENT\nPierre Mestre\nChairman and President\nOrchestra-Prémaman, S.A.\nZAC Saint-Antoine\n200 avenue des Tamaris\n34130 SAINT AUNES\nFrance\nEmail: pmestre@orchestra-premaman.com\nDear Sirs:\nPRIVATE AND CONFIDENTIAL\nIn connection with Orchestra-Prémaman, S.A.’s (“you” or “your”) proposal of a possible transaction (the “Transaction”) involving Destination\nMaternity Corporation (the “Company”), the Company and its Representatives (as defined below), including Guggenheim Securities, LLC\n(“Guggenheim”), will make available to you certain information which is non-public, confidential or proprietary in nature.\n1. By execution of this letter agreement (the “Agreement”), you agree, subject to the terms and conditions hereof, to treat confidentially any such\ninformation that you or your Representatives are provided by or on behalf of the Company (collectively, the “Evaluation Material”). The term\n“Evaluation Material” shall also include all reports, analyses, notes or other information that are based on, contain or reflect any Evaluation\nMaterial (“Notes”). The term “Evaluation Material” does not include information that (i) is now or becomes generally available to the public\nother than as a result of a disclosure by you or any of your Representatives in violation of this Agreement, (ii) was available to you prior to the\ndisclosure of such Evaluation Material to you pursuant to this Agreement, provided that you do not know or have a reasonable basis to believe\nthat the source of such information is bound by a confidentiality obligation owed to the Company with respect to such information, (iii) becomes\navailable to you on from a source other than the Company or any of its Representatives, provided that you do not know or have a reasonable\nbasis to believe that such source is bound by a confidentiality obligation owed to the Company with respect to such information, or (iv) is or was\nindependently developed by you or any of your Representatives without use of or reference to the Evaluation Material. In addition, the term\n“Evaluation Material” does not include the fact that discussions or negotiations with the Company and its Representatives are or were taking\nplace concerning a possible Transaction, that you have received Evaluation Material (without disclosing the nature or content of such Evaluation\nMaterial) or that you are evaluating a possible Transaction. The term “Representative” means, as to any person, such person’s Affiliates (as\ndefined below) and its and their respective directors, officers, employees, attorneys, accountants, bankers, financial sources, agents,\nrepresentatives and advisors. As used herein, the term “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated by the Securities\nand Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Company agrees\nthat, as promptly as practicable, it will (i) provide you with the Evaluation Material set forth on Annex A hereto (the\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 2\n“Agreed Evaluation Material”), and (ii) use reasonable best efforts (including by providing reasonable access during normal business hours to the\nexecutive officers of the Company, provided that such access shall not disrupt the operations of the Company) to provide you with such\nadditional documents and information as you may reasonably request.\n2. You agree that, except as otherwise set forth in this Agreement, you will not use the Evaluation Material for any purpose other than evaluating,\nnegotiating, documenting, pursuing or consummating a possible Transaction (whether in a negotiated transaction or otherwise). You agree not to\ndisclose any Evaluation Material to any person, except that you may disclose Evaluation Material to your Representatives (who will be informed\nby you of the confidential nature of the Evaluation Material and will agree to be bound by the terms of this Agreement that are applicable to your\nRepresentatives) who are participating in your evaluation, negotiation, documentation, pursuit or consummation of a possible Transaction\n(whether in a negotiated transaction or otherwise) or who otherwise have a reasonable need to review the Evaluation Material for the purpose of\nevaluating, negotiating, documenting, pursuing or consummating a possible Transaction (whether in a negotiated transaction or otherwise). You\nagree (a) to undertake commercially reasonable precautions, consistent with the precautions you take to safeguard your own confidential and\nsensitive information, to safeguard and protect the confidentiality of the Evaluation Material and (b) not to authorize or direct your\nRepresentatives to make any disclosure or use of the Evaluation Material in violation of this Agreement. You shall be responsible for any breach\nby your Representatives of the terms of this Agreement that are applicable to your Representatives. Notwithstanding anything to the contrary in\nthis Agreement, so long as no Evaluation Material is revealed thereby, you may publicly disclose any price you are prepared to offer, any\ntransaction structure you are proposing to use and the results of any regulatory (including antitrust) analysis relating to the Transaction.\n3. You agree that, without the consent of the Company, you and your Representatives will not disclose information regarding specific discussions\nor negotiations that have taken place concerning a possible Transaction or any of the specific terms or conditions that have been discussed,\nexcept to the extent you are advised by your counsel that you are required to do so under applicable law, rule, or regulation. Notwithstanding\nanything to the contrary in this Agreement, you may publicly disclose any letter or other communication from you or your Representatives to the\nCompany’s Board of Directors regarding any offer or proposal in respect of a Transaction as long as such letter does not disclose Evaluation\nMaterial. The Company acknowledges and agrees that you will amend your Schedule 13D to reflect that the parties have entered into this\nAgreement (and that this Agreement itself will be disclosed) and that the parties intend to explore a possible Transaction. The Company further\nagrees that the obligations set forth in Section 5 hereof do not apply to any disclosure made pursuant to Section 2 or this Section 3.\n4. You understand and agree that neither the Company nor any of its Representatives have made or make any representation or warranty,\nexpressed or implied, as to the accuracy or completeness of the Evaluation Material or shall have any liability whatsoever to you or any of your\nRepresentatives relating to or resulting from the use or content of the Evaluation Material. You further understand and agree that, except as\notherwise provided in the last sentence of Section 1 hereof, neither the Company nor any of its Representatives is under any obligation to make\nany particular information available to you or to supplement or update any Evaluation Material previously provided.\n5. If you or any of your Representatives are requested or required to disclose any Evaluation Material pursuant to any applicable law, the\nrequirements of any regulatory authority or stock exchange listing rules, or in connection with any legal process or proceeding, you will, to the\nextent legally permitted, give the Company prompt written notice of such request or requirement and reasonably cooperate with the Company for\nit to seek\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 3\na protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, you or your\nRepresentatives will disclose only that portion of the Evaluation Material which, upon the written advice of your counsel and, to the extent\nlegally permitted, after notifying the Company, is legally required to be disclosed. Notwithstanding the foregoing, you will not be permitted to\ndisclose any Evaluation Material if the applicable law, requirements of any regulatory authority or stock exchange listing rules require such\ndisclosure by virtue of the fact that you have made or intend to make a transaction proposal or offer involving the Company or to solicit support\nfor any such proposal or offer from the Company’s stockholders.\n6. Prior to the expiration of a period of 60 days following the date hereof, neither the Company nor any of its Representatives may request that\nyou and your Representatives return to the Company or destroy all copies of the Evaluation Material and destroy all Notes. If, after the expiration\nof such period, the Company or Guggenheim requests in writing for any reason, you and your Representatives will, at your option, promptly\nreturn to the Company or destroy all copies of the Evaluation Material and destroy all Notes, in each case without retaining a copy thereof.\nNotwithstanding the foregoing, you and your Representatives shall (i) not be required to destroy electronic copies of the Evaluation Material or\nNotes that may be found in your or your Representatives’ files in accordance with your or their respective archival or back-up procedures or\nrecord retention policies, and (ii) be permitted to retain a copy of any Evaluation Material to the extent that such retention is as required by law,\nrule, regulation or professional obligations. Notwithstanding the return of the Evaluation Material and destruction of all Notes or the Company’s\nor Guggenheim’s request for such destruction, you and your Representatives will continue to be bound by your obligations of confidentiality and\nother obligations hereunder in accordance with the terms of this Agreement.\n7. You hereby acknowledge that you are aware, and that you will advise your Representatives, that the securities laws of the United States\nprohibit any person who is aware of material non-public information concerning the Company or a possible Transaction involving the Company\nfrom purchasing or selling the Company’s securities or from communicating such information to any other person under circumstances in which\nit is reasonably foreseeable that such person is likely to purchase or sell such securities.\n8. Until March 22, 2016, and thereafter as long as the Agreed Evaluation Material is actually provided to you in accordance with the terms of this\nAgreement, you agree that during the Restricted Period (as defined below), you will not, and will cause your Affiliates and Representatives\nacting on your behalf not to, directly or indirectly, without the prior written consent of the Company’s Board of Directors or an authorized\ncommittee thereof: (i) engage in, or advise, encourage, or influence any person with respect to, any “solicitation” of “proxies” or “consents” or\nbecome a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents, in each\ncase, with respect to the election or removal of directors the Company; (ii) submit any stockholder proposal (pursuant to Rule 14a-8 promulgated\nby the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or nominate any candidate for\nelection to the Board other than as expressly permitted by this Agreement; (iii) encourage any person to submit nominations in furtherance of a\n“contested solicitation” for the election or removal of directors with respect to the Company; or (iv) seek to call, or to request the calling of, a\nspecial meeting of the stockholders of the Company; provided that (a) any disclosure or activity expressly permitted pursuant to the terms of this\nAgreement will not be prevented by the foregoing restrictions, (b) you are free to request representation on the Company’s Board of Directors at\nany time after you have filed an amendment to your Schedule 13D relating to the Company indicating that you are no longer seeking to acquire\ncontrol of the Company (provided you have not thereafter made another filing with the SEC reflecting a change in that intention), and (c) you are\nfree to vote any shares that you own however you wish. For purposes of this Agreement, the “Restricted Period” shall mean the period beginning\non the date hereof and ending on the earlier of (a) January 1, 2017, and (b) the date, if any, (1) that the Company enters into an\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 4\nagreement with any third party providing for any merger, consolidation, business combination, asset sale or other extraordinary transaction that\nwould result in the conversion of more than 50% of the Company’s outstanding common equity or the sale of 50% or more of the Company’s\nassets, (2) that the Board recommends in favor of, or publicly takes a neutral position with respect to, any tender or exchange offer by any third\nparty for more than 50% of the Company’s outstanding equity securities, or (3) on which a majority of the members of the Board as of the date\nhereof cease to be directors of the Company. In addition, notwithstanding any other provision of this Agreement, nothing herein shall prevent\nyou or your Affiliates from acquiring securities of, or entering into business combination with, any person who beneficially owns any securities\nof the Company as long as the purpose of such transaction is not to circumvent the restrictions set forth in this Section 8.\n9. You agree that (i) the Company and Guggenheim shall be free to conduct a process respecting a possible Transaction as they in their sole\ndiscretion shall determine (including negotiating with any prospective transaction party and entering into definitive agreements without prior\nnotice to you or any other person), (ii) any procedures relating to a possible Transaction may be changed at any time without notice to you or any\nother person, and (iii) the Company shall have the right to reject or accept any potential transaction party, proposal or offer, or to terminate\ndiscussions and negotiations with you, at any time for any reason whatsoever, in its sole discretion.\n10. You further agree that this Agreement only creates obligations between the parties hereto with respect to the matters specifically agreed to\nherein, and further that this Agreement does not obligate the parties hereto or any of their respective Affiliates to negotiate or enter into a\ndefinitive agreement with respect to any Transaction or to consummate any Transaction.\n11. You agree that all (i) communications with the Company or its directors and officers regarding a possible Transaction, (ii) requests for\nadditional information regarding a possible Transaction, (iii) requests for facility tours or management meetings, and (iv) discussions or\nquestions regarding procedures relating to a possible Transaction will be submitted or directed exclusively to Guggenheim; provided, however,\nthat you may make any offer, proposal or request for waiver directly to the Company’s Board of Directors and engage in discussions and\nnegotiations with the Company’s Board of Directors and its Representatives regarding any such offer, proposal or request.\n12. You agree that, until January 1, 2017, neither you nor any of your Affiliates will, directly or indirectly, without the Company’s prior written\nconsent, solicit for employment any employees of the Company or any of its subsidiaries with whom you have had contact or who were\nintroduced to you during the period of your investigation of the Company in an executive or management level position. The preceding sentence\ndoes not, however, prohibit you or your Affiliates from making general solicitations for employment by means of advertisements, public notices,\nrecruiting agencies or internal or external websites or job search engines or, directly or indirectly, hiring any person who (i) responds thereto,\n(ii) contacts you or your Affiliates on their own initiative without prior solicitation by or on behalf of you or your Affiliates, or (iii) ceases to be\nemployed by the Company without prior solicitation by or on behalf of you or your Affiliates.\n13. Neither you nor your Representatives or any other person acting on your behalf will, directly or indirectly, without the prior written consent\nof the Company’s Board of Directors or an authorized committee thereof, provide information pertaining to or otherwise engage in any\ndiscussions with any executive officer or director of the Company (i) regarding employment with you, your Affiliates or the Company following\nthe consummation of a Transaction or (ii) regarding compensation, equity awards or other employee benefits that may be offered in connection\nwith the employment of such person by you, your Affiliates or the Company following the consummation of a Transaction.\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 5\n14. Each party hereto agrees that money damages may not be a sufficient remedy for any breach of this Agreement by the other party or it\nRepresentatives and that, in addition to all other remedies that may be available to such party, each party shall be entitled to seek specific\nperformance and injunctive or other equitable relief as a remedy for any such breach. If any provision or portion of this Agreement is determined\nby a court of competent jurisdiction to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this\nAgreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.\n15. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware. Each party hereto\nhereby irrevocably and unconditionally submits to the exclusive jurisdiction of any State or Federal court sitting in Delaware over any suit,\naction or proceeding arising out of or relating to this Agreement. Each party hereto hereby irrevocably and unconditionally waive any objection\nto the placing of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding\nbrought in any such court has been brought in an inconvenient forum.\n16. This Agreement may be executed in two or more counterparts, each of which will be deemed to be an original copy of this Agreement, and\nall of which, when taken together, shall be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of\nsignature pages by facsimile transmission or electronic mail in .pdf or similar format shall constitute effective execution and delivery of this\nAgreement as to the parties. For purposes of this Agreement any reference to “written” or “in writing” shall be deemed to include\ncorrespondence by signed letter or facsimile or by e-mail.\n17. During the Restricted Period, (i) the Company agrees to refrain from, and to cause its officers and directors to refrain from, any derogatory or\ndefamatory statements or communications concerning you or any of your officers or directors, and (ii) you agree to refrain from, and to cause\nyour officers and directors to refrain from, any derogatory or defamatory statements or communications concerning the Company or any of its\nofficers or directors.\n18. Unless otherwise provided herein, this Agreement shall terminate on the earlier of (i) the date of entry into of a definitive agreement\nregarding a Transaction with you, and (ii) January 1, 2017.\nIf you are in agreement with the foregoing, please so indicate by signing, dating and returning one copy of this Agreement, which will constitute\nour agreement with respect to the matters set forth herein.\nVery truly yours,\nDestination Maternity Corporation\nBy: /s/ Anthony M. Romano\nAnthony M. Romano\nPresident and Chief Executive Officer\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 6\nConfirmed and Agreed to:\nOrchestra-Prémaman, S.A.\nBy: /s/ Pierre Mestre\nPierre Mestre, Chairman and President	EX-10.1 2 d166304dex101.htm EX-10.1\nExhibit 10.1\nMarch 15, 2016\nCONFIDENTIALITY AGREEMENT\nPierre Mestre\nChairman and President\nOrchestra-Prémaman, S.A.\nZAC Saint-Antoine\n200 avenue des Tamaris\n34130 SAINT AUNES\nFrance\nEmail: pmestre@orchestra-premaman.com\nDear Sirs:\nPRIVATE AND CONFIDENTIAL\nIn connection with Orchestra-Prémaman, S.A.’s (“you” or “your”) proposal of a possible transaction (the “Transaction”) involving Destination\nMaternity Corporation (the “Company”), the Company and its Representatives (as defined below), including Guggenheim Securities, LL.C\n(“Guggenheim”), will make available to you certain information which is non-public, confidential or proprietary in nature.\n1. By execution of this letter agreement (the “Agreement”), you agree, subject to the terms and conditions hereof, to treat confidentially any such\ninformation that you or your Representatives are provided by or on behalf of the Company (collectively, the “Evaluation Material”). The term\n“Evaluation Material” shall also include all reports, analyses, notes or other information that are based on, contain or reflect any Evaluation\nMaterial (“Notes”). The term “Evaluation Material” does not include information that (i) is now or becomes generally available to the public\nother than as a result of a disclosure by you or any of your Representatives in violation of this Agreement, (ii) was available to you prior to the\ndisclosure of such Evaluation Material to you pursuant to this Agreement, provided that you do not know or have a reasonable basis to believe\nthat the source of such information is bound by a confidentiality obligation owed to the Company with respect to such information, (iii) becomes\navailable to you on from a source other than the Company or any of its Representatives, provided that you do not know or have a reasonable\nbasis to believe that such source is bound by a confidentiality obligation owed to the Company with respect to such information, or (iv) is or was\nindependently developed by you or any of your Representatives without use of or reference to the Evaluation Material. In addition, the term\n“Evaluation Material” does not include the fact that discussions or negotiations with the Company and its Representatives are or were taking\nplace concerning a possible Transaction, that you have received Evaluation Material (without disclosing the nature or content of such Evaluation\nMaterial) or that you are evaluating a possible Transaction. The term “Representative” means, as to any person, such person’s Affiliates (as\ndefined below) and its and their respective directors, officers, employees, attorneys, accountants, bankers, financial sources, agents,\nrepresentatives and advisors. As used herein, the term “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated by the Securities\nand Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Company agrees\nthat, as promptly as practicable, it will (i) provide you with the Evaluation Material set forth on Annex A hereto (the\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 2\n“Agreed Evaluation Material”), and (ii) use reasonable best efforts (including by providing reasonable access during normal business hours to the\nexecutive officers of the Company, provided that such access shall not disrupt the operations of the Company) to provide you with such\nadditional documents and information as you may reasonably request.\n2. You agree that, except as otherwise set forth in this Agreement, you will not use the Evaluation Material for any purpose other than evaluating,\nnegotiating, documenting, pursuing or consummating a possible Transaction (whether in a negotiated transaction or otherwise). You agree not to\ndisclose any Evaluation Material to any person, except that you may disclose Evaluation Material to your Representatives (who will be informed\nby you of the confidential nature of the Evaluation Material and will agree to be bound by the terms of this Agreement that are applicable to your\nRepresentatives) who are participating in your evaluation, negotiation, documentation, pursuit or consummation of a possible Transaction\n(whether in a negotiated transaction or otherwise) or who otherwise have a reasonable need to review the Evaluation Material for the purpose of\nevaluating, negotiating, documenting, pursuing or consummating a possible Transaction (whether in a negotiated transaction or otherwise). You\nagree (a) to undertake commercially reasonable precautions, consistent with the precautions you take to safeguard your own confidential and\nsensitive information, to safeguard and protect the confidentiality of the Evaluation Material and (b) not to authorize or direct your\nRepresentatives to make any disclosure or use of the Evaluation Material in violation of this Agreement. You shall be responsible for any breach\nby your Representatives of the terms of this Agreement that are applicable to your Representatives. Notwithstanding anything to the contrary in\nthis Agreement, so long as no Evaluation Material is revealed thereby, you may publicly disclose any price you are prepared to offer, any\ntransaction structure you are proposing to use and the results of any regulatory (including antitrust) analysis relating to the Transaction.\n3. You agree that, without the consent of the Company, you and your Representatives will not disclose information regarding specific discussions\nor negotiations that have taken place concerning a possible Transaction or any of the specific terms or conditions that have been discussed,\nexcept to the extent you are advised by your counsel that you are required to do so under applicable law, rule, or regulation. Notwithstanding\nanything to the contrary in this Agreement, you may publicly disclose any letter or other communication from you or your Representatives to the\nCompany’s Board of Directors regarding any offer or proposal in respect of a Transaction as long as such letter does not disclose Evaluation\nMaterial. The Company acknowledges and agrees that you will amend your Schedule 13D to reflect that the parties have entered into this\nAgreement (and that this Agreement itself will be disclosed) and that the parties intend to explore a possible Transaction. The Company further\nagrees that the obligations set forth in Section 5 hereof do not apply to any disclosure made pursuant to Section 2 or this Section 3.\n4. You understand and agree that neither the Company nor any of its Representatives have made or make any representation or warranty,\nexpressed or implied, as to the accuracy or completeness of the Evaluation Material or shall have any liability whatsoever to you or any of your\nRepresentatives relating to or resulting from the use or content of the Evaluation Material. You further understand and agree that, except as\notherwise provided in the last sentence of Section 1 hereof, neither the Company nor any of its Representatives is under any obligation to make\nany particular information available to you or to supplement or update any Evaluation Material previously provided.\n5. If you or any of your Representatives are requested or required to disclose any Evaluation Material pursuant to any applicable law, the\nrequirements of any regulatory authority or stock exchange listing rules, or in connection with any legal process or proceeding, you will, to the\nextent legally permitted, give the Company prompt written notice of such request or requirement and reasonably cooperate with the Company for\nit to seek\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 3\na protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, you or your\nRepresentatives will disclose only that portion of the Evaluation Material which, upon the written advice of your counsel and, to the extent\nlegally permitted, after notifying the Company, is legally required to be disclosed. Notwithstanding the foregoing, you will not be permitted to\ndisclose any Evaluation Material if the applicable law, requirements of any regulatory authority or stock exchange listing rules require such\ndisclosure by virtue of the fact that you have made or intend to make a transaction proposal or offer involving the Company or to solicit support\nfor any such proposal or offer from the Company’s stockholders.\n6. Prior to the expiration of a period of 60 days following the date hereof, neither the Company nor any of its Representatives may request that\nyou and your Representatives return to the Company or destroy all copies of the Evaluation Material and destroy all Notes. If, after the expiration\nof such period, the Company or Guggenheim requests in writing for any reason, you and your Representatives will, at your option, promptly\nreturn to the Company or destroy all copies of the Evaluation Material and destroy all Notes, in each case without retaining a copy thereof.\nNotwithstanding the foregoing, you and your Representatives shall (i) not be required to destroy electronic copies of the Evaluation Material or\nNotes that may be found in your or your Representatives’ files in accordance with your or their respective archival or back-up procedures or\nrecord retention policies, and (ii) be permitted to retain a copy of any Evaluation Material to the extent that such retention is as required by law,\nrule, regulation or professional obligations. Notwithstanding the return of the Evaluation Material and destruction of all Notes or the Company’s\nor Guggenheim’s request for such destruction, you and your Representatives will continue to be bound by your obligations of confidentiality and\nother obligations hereunder in accordance with the terms of this Agreement.\n7. You hereby acknowledge that you are aware, and that you will advise your Representatives, that the securities laws of the United States\nprohibit any person who is aware of material non-public information concerning the Company or a possible Transaction involving the Company\nfrom purchasing or selling the Company’s securities or from communicating such information to any other person under circumstances in which\nit is reasonably foreseeable that such person is likely to purchase or sell such securities.\n8. Until March 22, 2016, and thereafter as long as the Agreed Evaluation Material is actually provided to you in accordance with the terms of this\nAgreement, you agree that during the Restricted Period (as defined below), you will not, and will cause your Affiliates and Representatives\nacting on your behalf not to, directly or indirectly, without the prior written consent of the Company’s Board of Directors or an authorized\ncommittee thereof: (i) engage in, or advise, encourage, or influence any person with respect to, any “solicitation” of “proxies” or “consents” or\nbecome a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents, in each\ncase, with respect to the election or removal of directors the Company; (ii) submit any stockholder proposal (pursuant to Rule 14a-8 promulgated\nby the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or nominate any candidate for\nelection to the Board other than as expressly permitted by this Agreement; (iii) encourage any person to submit nominations in furtherance of a\n“contested solicitation” for the election or removal of directors with respect to the Company; or (iv) seek to call, or to request the calling of, a\nspecial meeting of the stockholders of the Company; provided that (a) any disclosure or activity expressly permitted pursuant to the terms of this\nAgreement will not be prevented by the foregoing restrictions, (b) you are free to request representation on the Company’s Board of Directors at\nany time after you have filed an amendment to your Schedule 13D relating to the Company indicating that you are no longer seeking to acquire\ncontrol of the Company (provided you have not thereafter made another filing with the SEC reflecting a change in that intention), and (c) you are\nfree to vote any shares that you own however you wish. For purposes of this Agreement, the “Restricted Period” shall mean the period beginning\non the date hereof and ending on the earlier of (a) January 1, 2017, and (b) the date, if any, (1) that the Company enters into an\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 4\nagreement with any third party providing for any merger, consolidation, business combination, asset sale or other extraordinary transaction that\nwould result in the conversion of more than 50% of the Company’s outstanding common equity or the sale of 50% or more of the Company’s\nassets, (2) that the Board recommends in favor of, or publicly takes a neutral position with respect to, any tender or exchange offer by any third\nparty for more than 50% of the Company’s outstanding equity securities, or (3) on which a majority of the members of the Board as of the date\nhereof cease to be directors of the Company. In addition, notwithstanding any other provision of this Agreement, nothing herein shall prevent\nyou or your Affiliates from acquiring securities of, or entering into business combination with, any person who beneficially owns any securities\nof the Company as long as the purpose of such transaction is not to circumvent the restrictions set forth in this Section 8.\n9. You agree that (i) the Company and Guggenheim shall be free to conduct a process respecting a possible Transaction as they in their sole\ndiscretion shall determine (including negotiating with any prospective transaction party and entering into definitive agreements without prior\nnotice to you or any other person), (ii) any procedures relating to a possible Transaction may be changed at any time without notice to you or any\nother person, and (iii) the Company shall have the right to reject or accept any potential transaction party, proposal or offer, or to terminate\ndiscussions and negotiations with you, at any time for any reason whatsoever, in its sole discretion.\n10. You further agree that this Agreement only creates obligations between the parties hereto with respect to the matters specifically agreed to\nherein, and further that this Agreement does not obligate the parties hereto or any of their respective Affiliates to negotiate or enter into a\ndefinitive agreement with respect to any Transaction or to consummate any Transaction.\n11. You agree that all (i) communications with the Company or its directors and officers regarding a possible Transaction, (ii) requests for\nadditional information regarding a possible Transaction, (iii) requests for facility tours or management meetings, and (iv) discussions or\nquestions regarding procedures relating to a possible Transaction will be submitted or directed exclusively to Guggenheim; provided, however,\nthat you may make any offer, proposal or request for waiver directly to the Company’s Board of Directors and engage in discussions and\nnegotiations with the Company’s Board of Directors and its Representatives regarding any such offer, proposal or request.\n12. You agree that, until January 1, 2017, neither you nor any of your Affiliates will, directly or indirectly, without the Company’s prior written\nconsent, solicit for employment any employees of the Company or any of its subsidiaries with whom you have had contact or who were\nintroduced to you during the period of your investigation of the Company in an executive or management level position. The preceding sentence\ndoes not, however, prohibit you or your Affiliates from making general solicitations for employment by means of advertisements, public notices,\nrecruiting agencies or internal or external websites or job search engines or, directly or indirectly, hiring any person who (i) responds thereto,\n(ii) contacts you or your Affiliates on their own initiative without prior solicitation by or on behalf of you or your Affiliates, or (iii) ceases to be\nemployed by the Company without prior solicitation by or on behalf of you or your Affiliates.\n13. Neither you nor your Representatives or any other person acting on your behalf will, directly or indirectly, without the prior written consent\nof the Company’s Board of Directors or an authorized committee thereof, provide information pertaining to or otherwise engage in any\ndiscussions with any executive officer or director of the Company (i) regarding employment with you, your Affiliates or the Company following\nthe consummation of a Transaction or (ii) regarding compensation, equity awards or other employee benefits that may be offered in connection\nwith the employment of such person by you, your Affiliates or the Company following the consummation of a Transaction.\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 5\n14. Each party hereto agrees that money damages may not be a sufficient remedy for any breach of this Agreement by the other party or it\nRepresentatives and that, in addition to all other remedies that may be available to such party, each party shall be entitled to seek specific\nperformance and injunctive or other equitable relief as a remedy for any such breach. If any provision or portion of this Agreement is determined\nby a court of competent jurisdiction to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this\nAgreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.\n15. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware. Each party hereto\nhereby irrevocably and unconditionally submits to the exclusive jurisdiction of any State or Federal court sitting in Delaware over any suit,\naction or proceeding arising out of or relating to this Agreement. Each party hereto hereby irrevocably and unconditionally waive any objection\nto the placing of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding\nbrought in any such court has been brought in an inconvenient forum.\n16. This Agreement may be executed in two or more counterparts, each of which will be deemed to be an original copy of this Agreement, and\nall of which, when taken together, shall be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of\nsignature pages by facsimile transmission or electronic mail in .pdf or similar format shall constitute effective execution and delivery of this\nAgreement as to the parties. For purposes of this Agreement any reference to “written” or “in writing” shall be deemed to include\ncorrespondence by signed letter or facsimile or by e-mail.\n17. During the Restricted Period, (i) the Company agrees to refrain from, and to cause its officers and directors to refrain from, any derogatory or\ndefamatory statements or communications concerning you or any of your officers or directors, and (ii) you agree to refrain from, and to cause\nyour officers and directors to refrain from, any derogatory or defamatory statements or communications concerning the Company or any of its\nofficers or directors.\n18. Unless otherwise provided herein, this Agreement shall terminate on the earlier of (i) the date of entry into of a definitive agreement\nregarding a Transaction with you, and (ii) January 1, 2017.\nIf you are in agreement with the foregoing, please so indicate by signing, dating and returning one copy of this Agreement, which will constitute\nour agreement with respect to the matters set forth herein.\nVery truly yours,\nDestination Maternity Corporation\nBy: /s/ Anthony M. Romano\nAnthony M. Romano\nPresident and Chief Executive Officer\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 6\nConfirmed and Agreed to:\nOrchestra-Prémaman, S.A.\nBy: /s/ Pierre Mestre\nPierre Mestre, Chairman and President	EX-10.1 2 d166304dex101.htm EX-10.1\nExhibit 10.1\nMarch 15, 2016\nCONFIDENTIALITY AGREEMENT\nPierre Mestre\nChairman and President\nOrchestra-Premaman, S.A.\nZAC Saint-Antoine\n200 avenue des Tamaris\n34130 SAINT AUNES\nFrance\nEmail:pmestre@orchestra-premaman.com\nDear Sirs:\nPRIVATE AND CONFIDENTIAL\nIn connection with Orchestra-Premaman, S.A.'s ("you" or "your") proposal of a possible transaction (the "Transaction") involving Destination\nMaternity Corporation (the "Company"), the Company and its Representatives (as defined below), including Guggenheim Securities, LLC\n("Guggenheim"), will make available to you certain information which is non-public, confidential or proprietary in nature.\n1. By execution of this letter agreement (the "Agreement"), you agree, subject to the terms and conditions hereof, to treat confidentially any such\ninformation that you or your Representatives are provided by or on behalf of the Company (collectively, the "Evaluation Material"). The term\n"Evaluation Material" shall also include all reports, analyses, notes or other information that are based on, contain or reflect any Evaluation\nMaterial ("Notes"). The term "Evaluation Material" does not include information that (i) is now or becomes generally available to the public\nother than as a result of a disclosure by you or any of your Representatives in violation of this Agreement, (ii) was available to you prior to the\ndisclosure of such Evaluation Material to you pursuant to this Agreement, provided that you do not know or have a reasonable basis to believe\nthat\nthe\nsource\nof\nsuch information is bound by a confidentiality obligation owed to the Company with respect to such information, (iii) becomes\navailable to you on from a source other than the Company or any of its Representatives, provided that you do not know or have a reasonable\nbasis to believe that such source is bound by a confidentiality obligation owed to the Company with respect to such information, or (iv) is or\nwas\nindependently developed by you or any of your Representatives without use of or reference to the Evaluation Material. In addition, the term\n"Evaluation Material" does not include the fact that discussions or negotiations with the Company and its Representatives are or were taking\nplace concerning a possible Transaction, that you have received Evaluation Material (without disclosing the nature or content of such Evaluation\nMaterial) or that you are evaluating a possible Transaction. The term "Representative" means, as to any person, such person's Affiliates (as\ndefined below) and its and their respective directors, officers, employees, attorneys, accountants, bankers, financial sources, agents,\nrepresentatives and advisors. As used herein, the term "Affiliate" shall have the meaning set forth in Rule 12b-2 promulgated by the Securities\nand Exchange Commission (the "SEC") under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). The Company agrees\nthat, as promptly as practicable, it will (i) provide you with the Evaluation Material set forth on Annex A hereto (the\nOrchestra-Premaman, S.A.\nMarch 15, 2016\nPage 2\n"Agreed Evaluation Material"), and (ii) use reasonable best efforts (including by providing reasonable access during normal business hours to the\nexecutive officers of the Company, provided that such access shall not disrupt the operations of the Company) to provide you with such\nadditional documents and information as you may reasonably request.\n2. You agree that, except as otherwise set forth in this Agreement, you will not use the Evaluation Material for any purpose other than evaluating,\nnegotiating, documenting, pursuing or consummating a possible Transaction (whether in a negotiated transaction or otherwise). You agree not to\ndisclose any Evaluation Material to any person, except that you may disclose Evaluation Material to your Representatives (who will be informed\nby you of the confidential nature of the Evaluation Material and will agree to be bound by the terms of this Agreement that are applicable to your\nRepresentatives) who are participating in your evaluation, negotiation, documentation, pursuit or consummation of a possible Transaction\n(whether in a negotiated transaction or otherwise) or who otherwise have a reasonable need to review the Evaluation Material for the purpose of\nevaluating, negotiating, documenting, pursuing or consummating a possible Transaction (whether in a negotiated transaction or otherwise). You\nagree (a) to undertake commercially reasonable precautions, consistent with the precautions you take to safeguard your own confidential and\nsensitive information, to safeguard and protect the confidentiality of the Evaluation Material and (b) not to authorize or direct your\nRepresentatives to make any disclosure or use of the Evaluation Material in violation of this Agreement. You shall be responsible for any breach\nby your Representatives of the terms of this Agreement that are applicable to your Representatives. Notwithstanding anything to the contrary in\nthis Agreement, so long as no Evaluation Material is revealed thereby, you may publicly disclose any price you are prepared to offer, any\ntransaction structure you are proposing to use and the results of any regulatory (including antitrust) analysis relating to the Transaction.\n3. You agree that, without the consent of the Company, you and your Representatives will not disclose information regarding specific discussions\nor negotiations that have taken place concerning a possible Transaction or any of the specific terms or conditions that have been discussed,\nexcept to the extent you are advised by your counsel that you are required to do so under applicable law, rule, or regulation. Notwithstanding\nanything to the contrary in this Agreement, you may publicly disclose any letter or other communication from you or your Representatives\nto\nthe\nCompany's Board of Directors regarding any offer or proposal in respect of a Transaction as long as such letter does not disclose Evaluation\nMaterial. The Company acknowledges and agrees that you will amend your Schedule 13D to reflect that the parties have entered into this\nAgreement (and that this Agreement itself will be disclosed) and that the parties intend to explore a possible Transaction. The Company further\nagrees that the obligations set forth in Section 5 hereof do not apply to any disclosure made pursuant to Section 2 or this Section 3.\n4. You understand and agree that neither the Company nor any of its Representatives have made or make any representation or warranty,\nexpressed or implied, as to the accuracy or completeness of the Evaluation Material or shall have any liability whatsoever to you or any of your\nRepresentatives relating to or resulting from the use or content of the Evaluation Material. You further understand and agree that, except as\notherwise provided in the last sentence of Section 1 hereof, neither the Company nor any of its Representatives is under any obligation to make\nany particular information available to you or to supplement or update any Evaluation Material previously provided.\n5. If you or any of your Representatives are requested or required to disclose any Evaluation Material pursuant to any applicable law,\nthe\nrequirements of any regulatory authority or stock exchange listing rules, or in connection with any legal process or proceeding, you will, to the\nextent legally permitted, give the Company prompt written notice of such request or requirement and reasonably cooperate with the Company for\nit to seek\nOrchestra-Premaman, S.A.\nMarch 15, 2016\nPage 3\na protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, you or your\nRepresentatives\nwill\ndisclose\nonly\nthat\nportion\nof\nthe\nEvaluation\nMaterial\nwhich,\nupon\nthe\nwritten\nadvice\nof\nyour\ncounsel\nand,\nto\nthe\nextent\nlegally permitted, after notifying the Company, is legally required to be disclosed. Notwithstanding the foregoing, you will not be permitted to\ndisclose any Evaluation Material if the applicable law, requirements of any regulatory authority or stock exchange listing rules require such\ndisclosure by virtue of the fact that you have made or intend to make a transaction proposal or offer involving the Company or to solicit support\nfor any such proposal or offer from the Company's stockholders.\n6. Prior to the expiration of a period of 60 days following the date hereof, neither the Company nor any of its Representatives may request that\nyou and your Representatives return to the Company or destroy all copies of the Evaluation Material and destroy all Notes. If, after the expiration\nof such period, the Company or Guggenheim requests in writing for any reason, you and your Representatives will, at your option, promptly\nreturn to the Company or destroy all copies of the Evaluation Material and destroy all Notes, in each case without retaining a copy thereof.\nNotwithstanding the foregoing, you and your Representatives shall (i) not be required to destroy electronic copies of the Evaluation Material\nor\nNotes that may be found in your or your Representatives' files in accordance with your or their respective archival or back-up procedures or\nrecord retention policies, and (ii) be permitted to retain a copy of any Evaluation Material to the extent that such retention is as required by law,\nrule, regulation or professional obligations. Notwithstanding the return of the Evaluation Material and destruction of all Notes or the Company's\nor Guggenheim's request for such destruction, you and your Representatives will continue to be bound by your obligations of confidentiality\nand\nother obligations hereunder in accordance with the terms of this Agreement.\n7. You hereby acknowledge that you are aware, and that you will advise your Representatives, that the securities laws of the United States\nprohibit any person who is aware of material non-public information concerning the Company or a possible Transaction involving the Company\nfrom purchasing or selling the Company's securities or from communicating such information to any other person under circumstances in which\nit is reasonably foreseeable that such person is likely to purchase or sell such securities.\n8. Until March 22, 2016, and thereafter as long as the Agreed Evaluation Material is actually provided to you in accordance with the terms of this\nAgreement, you agree that during the Restricted Period (as defined below), you will not, and will cause your Affiliates and Representatives\nacting on your behalf not to, directly or indirectly, without the prior written consent of the Company's Board of Directors or an authorized\ncommittee thereof: (i) engage in, or advise, encourage, or influence any person with respect to, any "solicitation" of "proxies" or "consents" or\nbecome a "participant" in a "solicitation" (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents, in each\ncase, with respect to the election or removal of directors the Company; (ii) submit any stockholder proposal (pursuant to Rule 14a-8 promulgated\nby the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or nominate any candidate\nfor\nelection\nto\nthe\nBoard\nother\nthan\nas\nexpressly\npermitted\nby\nthis\nAgreement;\n(iii)\nencourage\nany\nperson\nto\nsubmit\nnominations\nin\nfurtherance\nof\na\n"contested solicitation" for the election or removal of directors with respect to the Company; or (iv) seek to call, or to request the calling of,\na\nspecial meeting of the stockholders of the Company; provided that (a) any disclosure or activity expressly permitted pursuant to the terms of this\nAgreement will not be prevented by the foregoing restrictions, (b) you are free to request representation on the Company's Board of Directors\nat\nany time after you have filed an amendment to your Schedule 13D relating to the Company indicating that you are no longer seeking to acquire\ncontrol of the Company (provided you have not thereafter made another filing with the SEC reflecting a change in that intention), and (c) you are\nfree to vote any shares that you own however you wish. For purposes of this Agreement, the "Restricted Period" shall mean the period beginning\non the date hereof and ending on the earlier of (a) January 1, 2017, and (b) the date, if any, (1) that the Company enters into an\nOrchestra-Premaman, S.A.\nMarch 15, 2016\nPage 4\nagreement with any third party providing for any merger, consolidation, business combination, asset sale or other extraordinary transaction that\nwould result in the conversion of more than 50% of the Company's outstanding common equity or the sale of 50% or more of the Company's\nassets, (2) that the Board recommends in favor of, or publicly takes a neutral position with respect to, any tender or exchange offer by any third\nparty for more than 50% of the Company's outstanding equity securities, or (3) on which a majority of the members of the Board as of the date\nhereof cease to be directors of the Company. In addition, notwithstanding any other provision of this Agreement, nothing herein shall prevent\nyou or your Affiliates from acquiring securities of, or entering into business combination with, any person who beneficially owns any securities\nof the Company as long as the purpose of such transaction is not to circumvent the restrictions set forth in this Section\n8.\n9. You agree that (i) the Company and Guggenheim shall be free to conduct a process respecting a possible Transaction as they in their sole\ndiscretion shall determine (including negotiating with any prospective transaction party and entering into definitive agreements without prior\nnotice to you or any other person), (ii) any procedures relating to a possible Transaction may be changed at any time without notice to you or any\nother person, and (iii) the Company shall have the right to reject or accept any potential transaction party, proposal or offer, or to terminate\ndiscussions and negotiations with you, at any time for any reason whatsoever, in its sole discretion.\n10.\nYou further agree that this Agreement only creates obligations between the parties hereto with respect to the matters specifically agreed to\nherein, and further that this Agreement does not obligate the parties hereto or any of their respective Affiliates to negotiate or enter into a\ndefinitive agreement with respect to any Transaction or to consummate any Transaction.\n11. You agree that all (i) communications with the Company or its directors and officers regarding a possible Transaction, (ii) requests for\nadditional information regarding a possible Transaction, (iii) requests for facility tours or management meetings, and (iv) discussions or\nquestions regarding procedures relating to a possible Transaction will be submitted or directed exclusively to Guggenheim; provided, however,\nthat you may make any offer, proposal or request for waiver directly to the Company's Board of Directors and engage in discussions and\nnegotiations with the Company's Board of Directors and its Representatives regarding any such offer, proposal or request.\n12. You agree that, until January 1, 2017, neither you nor any of your Affiliates will, directly or indirectly, without the Company's prior written\nconsent, solicit for employment any employees of the Company or any of its subsidiaries with whom you have had contact or who were\nintroduced to you during the period of your investigation of the Company in an executive or management level position. The preceding sentence\ndoes\nnot, however, prohibit you or your Affiliates from making general solicitations for employment by means of advertisements, public notices,\nrecruiting agencies or internal or external websites or job search engines or, directly or indirectly, hiring any person who (i) responds thereto,\n(ii) contacts you or your Affiliates on their own initiative without prior solicitation by or on behalf of you or your Affiliates, or (iii) ceases to be\nemployed by the Company without prior solicitation by or on behalf of you or your Affiliates.\n13. Neither you nor your Representatives or any other person acting on your behalf will, directly or indirectly, without the prior written consent\nof the Company's Board of Directors or an authorized committee thereof, provide information pertaining to or otherwise engage in any\ndiscussions with any executive officer or director of the Company (i) regarding employment with you, your Affiliates or the Company following\nthe consummation of a Transaction or (ii) regarding compensation, equity awards or other employee benefits that may be offered in connection\nwith the employment of such person by you, your Affiliates or the Company following the consummation of a Transaction.\nOrchestra-Premaman, S.A.\nMarch 15, 2016\nPage 5\n14. Each party hereto agrees that money damages may not be a sufficient remedy for any breach of this Agreement by the other party or\nit\nRepresentatives and that, in addition to all other remedies that may be available to such party, each party shall be entitled to seek specific\nperformance and injunctive or other equitable relief as a remedy for any such breach. If any provision or portion of this Agreement is determined\nby a court of competent jurisdiction to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this\nAgreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.\n15. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware. Each party hereto\nhereby irrevocably and unconditionally submits to the exclusive jurisdiction of any State or Federal court sitting in Delaware over any suit,\naction or proceeding arising out of or relating to this Agreement. Each party hereto hereby irrevocably and unconditionally waive any objection\nto the placing of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding\nbrought in any such court has been brought in an inconvenient forum.\n16. This Agreement may be executed in two or more counterparts, each of which will be deemed to be an original copy of this Agreement, and\nall of which, when taken together, shall be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and\nof\nsignature pages by facsimile transmission or electronic mail in .pdf or similar format shall constitute effective execution and delivery of this\nAgreement as to the parties. For purposes of this Agreement any reference to "written" or "in writing" shall be deemed to include\ncorrespondence by signed letter or facsimile or by e-mail.\n17. During the Restricted Period, (i) the Company agrees to refrain from, and to cause its officers and directors to refrain from, any derogatory or\ndefamatory statements or communications concerning you or any of your officers or directors, and (ii) you agree to refrain from, and to cause\nyour officers and directors to refrain from, any derogatory or defamatory statements or communications concerning the Company or any of its\nofficers or directors.\n18. Unless otherwise provided herein, this Agreement shall terminate on the earlier of (i) the date of entry into of a definitive agreement\nregarding a Transaction with you, and (ii) January 1, 2017.\nIf you are in agreement with the foregoing, please so indicate by signing, dating and returning one copy of this Agreement, which will constitute\nour agreement with respect to the matters set forth herein.\nVery truly yours,\nDestination Maternity Corporation\nBy: /s/ Anthony M. Romano\nAnthony M. Romano\nPresident and Chief Executive Officer\nOrchestra-Premaman S.A.\nMarch 15, 2016\nPage 6\nConfirmed and Agreed to:\nOrchestra-Premaman, S.A.\nBy: /s/ Pierre Mestre\nPierre Mestre, Chairman and President	EX-10.1 2 d166304dex101.htm EX-10.1\nExhibit 10.1\nMarch 15, 2016\nCONFIDENTIALITY AGREEMENT\nPierre Mestre\nChairman and President\nOrchestra-Prémaman, S.A.\nZAC Saint-Antoine\n200 avenue des Tamaris\n34130 SAINT AUNES\nFrance\nEmail: pmestre@orchestra-premaman.com\nDear Sirs:\nPRIVATE AND CONFIDENTIAL\nIn connection with Orchestra-Prémaman, S.A.’s (“you” or “your”) proposal of a possible transaction (the “Transaction”) involving Destination\nMaternity Corporation (the “Company”), the Company and its Representatives (as defined below), including Guggenheim Securities, LLC\n(“Guggenheim”), will make available to you certain information which is non-public, confidential or proprietary in nature.\n1. By execution of this letter agreement (the “Agreement”), you agree, subject to the terms and conditions hereof, to treat confidentially any such\ninformation that you or your Representatives are provided by or on behalf of the Company (collectively, the “Evaluation Material”). The term\n“Evaluation Material” shall also include all reports, analyses, notes or other information that are based on, contain or reflect any Evaluation\nMaterial (“Notes”). The term “Evaluation Material” does not include information that (i) is now or becomes generally available to the public\nother than as a result of a disclosure by you or any of your Representatives in violation of this Agreement, (ii) was available to you prior to the\ndisclosure of such Evaluation Material to you pursuant to this Agreement, provided that you do not know or have a reasonable basis to believe\nthat the source of such information is bound by a confidentiality obligation owed to the Company with respect to such information, (iii) becomes\navailable to you on from a source other than the Company or any of its Representatives, provided that you do not know or have a reasonable\nbasis to believe that such source is bound by a confidentiality obligation owed to the Company with respect to such information, or (iv) is or was\nindependently developed by you or any of your Representatives without use of or reference to the Evaluation Material. In addition, the term\n“Evaluation Material” does not include the fact that discussions or negotiations with the Company and its Representatives are or were taking\nplace concerning a possible Transaction, that you have received Evaluation Material (without disclosing the nature or content of such Evaluation\nMaterial) or that you are evaluating a possible Transaction. The term “Representative” means, as to any person, such person’s Affiliates (as\ndefined below) and its and their respective directors, officers, employees, attorneys, accountants, bankers, financial sources, agents,\nrepresentatives and advisors. As used herein, the term “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated by the Securities\nand Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Company agrees\nthat, as promptly as practicable, it will (i) provide you with the Evaluation Material set forth on Annex A hereto (the\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 2\n“Agreed Evaluation Material”), and (ii) use reasonable best efforts (including by providing reasonable access during normal business hours to the\nexecutive officers of the Company, provided that such access shall not disrupt the operations of the Company) to provide you with such\nadditional documents and information as you may reasonably request.\n2. You agree that, except as otherwise set forth in this Agreement, you will not use the Evaluation Material for any purpose other than evaluating,\nnegotiating, documenting, pursuing or consummating a possible Transaction (whether in a negotiated transaction or otherwise). You agree not to\ndisclose any Evaluation Material to any person, except that you may disclose Evaluation Material to your Representatives (who will be informed\nby you of the confidential nature of the Evaluation Material and will agree to be bound by the terms of this Agreement that are applicable to your\nRepresentatives) who are participating in your evaluation, negotiation, documentation, pursuit or consummation of a possible Transaction\n(whether in a negotiated transaction or otherwise) or who otherwise have a reasonable need to review the Evaluation Material for the purpose of\nevaluating, negotiating, documenting, pursuing or consummating a possible Transaction (whether in a negotiated transaction or otherwise). You\nagree (a) to undertake commercially reasonable precautions, consistent with the precautions you take to safeguard your own confidential and\nsensitive information, to safeguard and protect the confidentiality of the Evaluation Material and (b) not to authorize or direct your\nRepresentatives to make any disclosure or use of the Evaluation Material in violation of this Agreement. You shall be responsible for any breach\nby your Representatives of the terms of this Agreement that are applicable to your Representatives. Notwithstanding anything to the contrary in\nthis Agreement, so long as no Evaluation Material is revealed thereby, you may publicly disclose any price you are prepared to offer, any\ntransaction structure you are proposing to use and the results of any regulatory (including antitrust) analysis relating to the Transaction.\n3. You agree that, without the consent of the Company, you and your Representatives will not disclose information regarding specific discussions\nor negotiations that have taken place concerning a possible Transaction or any of the specific terms or conditions that have been discussed,\nexcept to the extent you are advised by your counsel that you are required to do so under applicable law, rule, or regulation. Notwithstanding\nanything to the contrary in this Agreement, you may publicly disclose any letter or other communication from you or your Representatives to the\nCompany’s Board of Directors regarding any offer or proposal in respect of a Transaction as long as such letter does not disclose Evaluation\nMaterial. The Company acknowledges and agrees that you will amend your Schedule 13D to reflect that the parties have entered into this\nAgreement (and that this Agreement itself will be disclosed) and that the parties intend to explore a possible Transaction. The Company further\nagrees that the obligations set forth in Section 5 hereof do not apply to any disclosure made pursuant to Section 2 or this Section 3.\n4. You understand and agree that neither the Company nor any of its Representatives have made or make any representation or warranty,\nexpressed or implied, as to the accuracy or completeness of the Evaluation Material or shall have any liability whatsoever to you or any of your\nRepresentatives relating to or resulting from the use or content of the Evaluation Material. You further understand and agree that, except as\notherwise provided in the last sentence of Section 1 hereof, neither the Company nor any of its Representatives is under any obligation to make\nany particular information available to you or to supplement or update any Evaluation Material previously provided.\n5. If you or any of your Representatives are requested or required to disclose any Evaluation Material pursuant to any applicable law, the\nrequirements of any regulatory authority or stock exchange listing rules, or in connection with any legal process or proceeding, you will, to the\nextent legally permitted, give the Company prompt written notice of such request or requirement and reasonably cooperate with the Company for\nit to seek\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 3\na protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, you or your\nRepresentatives will disclose only that portion of the Evaluation Material which, upon the written advice of your counsel and, to the extent\nlegally permitted, after notifying the Company, is legally required to be disclosed. Notwithstanding the foregoing, you will not be permitted to\ndisclose any Evaluation Material if the applicable law, requirements of any regulatory authority or stock exchange listing rules require such\ndisclosure by virtue of the fact that you have made or intend to make a transaction proposal or offer involving the Company or to solicit support\nfor any such proposal or offer from the Company’s stockholders.\n6. Prior to the expiration of a period of 60 days following the date hereof, neither the Company nor any of its Representatives may request that\nyou and your Representatives return to the Company or destroy all copies of the Evaluation Material and destroy all Notes. If, after the expiration\nof such period, the Company or Guggenheim requests in writing for any reason, you and your Representatives will, at your option, promptly\nreturn to the Company or destroy all copies of the Evaluation Material and destroy all Notes, in each case without retaining a copy thereof.\nNotwithstanding the foregoing, you and your Representatives shall (i) not be required to destroy electronic copies of the Evaluation Material or\nNotes that may be found in your or your Representatives’ files in accordance with your or their respective archival or back-up procedures or\nrecord retention policies, and (ii) be permitted to retain a copy of any Evaluation Material to the extent that such retention is as required by law,\nrule, regulation or professional obligations. Notwithstanding the return of the Evaluation Material and destruction of all Notes or the Company’s\nor Guggenheim’s request for such destruction, you and your Representatives will continue to be bound by your obligations of confidentiality and\nother obligations hereunder in accordance with the terms of this Agreement.\n7. You hereby acknowledge that you are aware, and that you will advise your Representatives, that the securities laws of the United States\nprohibit any person who is aware of material non-public information concerning the Company or a possible Transaction involving the Company\nfrom purchasing or selling the Company’s securities or from communicating such information to any other person under circumstances in which\nit is reasonably foreseeable that such person is likely to purchase or sell such securities.\n8. Until March 22, 2016, and thereafter as long as the Agreed Evaluation Material is actually provided to you in accordance with the terms of this\nAgreement, you agree that during the Restricted Period (as defined below), you will not, and will cause your Affiliates and Representatives\nacting on your behalf not to, directly or indirectly, without the prior written consent of the Company’s Board of Directors or an authorized\ncommittee thereof: (i) engage in, or advise, encourage, or influence any person with respect to, any “solicitation” of “proxies” or “consents” or\nbecome a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) of proxies or consents, in each\ncase, with respect to the election or removal of directors the Company; (ii) submit any stockholder proposal (pursuant to Rule 14a-8 promulgated\nby the SEC under the Exchange Act or otherwise) or any notice of nomination or other business for consideration, or nominate any candidate for\nelection to the Board other than as expressly permitted by this Agreement; (iii) encourage any person to submit nominations in furtherance of a\n“contested solicitation” for the election or removal of directors with respect to the Company; or (iv) seek to call, or to request the calling of, a\nspecial meeting of the stockholders of the Company; provided that (a) any disclosure or activity expressly permitted pursuant to the terms of this\nAgreement will not be prevented by the foregoing restrictions, (b) you are free to request representation on the Company’s Board of Directors at\nany time after you have filed an amendment to your Schedule 13D relating to the Company indicating that you are no longer seeking to acquire\ncontrol of the Company (provided you have not thereafter made another filing with the SEC reflecting a change in that intention), and (c) you are\nfree to vote any shares that you own however you wish. For purposes of this Agreement, the “Restricted Period” shall mean the period beginning\non the date hereof and ending on the earlier of (a) January 1, 2017, and (b) the date, if any, (1) that the Company enters into an\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 4\nagreement with any third party providing for any merger, consolidation, business combination, asset sale or other extraordinary transaction that\nwould result in the conversion of more than 50% of the Company’s outstanding common equity or the sale of 50% or more of the Company’s\nassets, (2) that the Board recommends in favor of, or publicly takes a neutral position with respect to, any tender or exchange offer by any third\nparty for more than 50% of the Company’s outstanding equity securities, or (3) on which a majority of the members of the Board as of the date\nhereof cease to be directors of the Company. In addition, notwithstanding any other provision of this Agreement, nothing herein shall prevent\nyou or your Affiliates from acquiring securities of, or entering into business combination with, any person who beneficially owns any securities\nof the Company as long as the purpose of such transaction is not to circumvent the restrictions set forth in this Section 8.\n9. You agree that (i) the Company and Guggenheim shall be free to conduct a process respecting a possible Transaction as they in their sole\ndiscretion shall determine (including negotiating with any prospective transaction party and entering into definitive agreements without prior\nnotice to you or any other person), (ii) any procedures relating to a possible Transaction may be changed at any time without notice to you or any\nother person, and (iii) the Company shall have the right to reject or accept any potential transaction party, proposal or offer, or to terminate\ndiscussions and negotiations with you, at any time for any reason whatsoever, in its sole discretion.\n10. You further agree that this Agreement only creates obligations between the parties hereto with respect to the matters specifically agreed to\nherein, and further that this Agreement does not obligate the parties hereto or any of their respective Affiliates to negotiate or enter into a\ndefinitive agreement with respect to any Transaction or to consummate any Transaction.\n11. You agree that all (i) communications with the Company or its directors and officers regarding a possible Transaction, (ii) requests for\nadditional information regarding a possible Transaction, (iii) requests for facility tours or management meetings, and (iv) discussions or\nquestions regarding procedures relating to a possible Transaction will be submitted or directed exclusively to Guggenheim; provided, however,\nthat you may make any offer, proposal or request for waiver directly to the Company’s Board of Directors and engage in discussions and\nnegotiations with the Company’s Board of Directors and its Representatives regarding any such offer, proposal or request.\n12. You agree that, until January 1, 2017, neither you nor any of your Affiliates will, directly or indirectly, without the Company’s prior written\nconsent, solicit for employment any employees of the Company or any of its subsidiaries with whom you have had contact or who were\nintroduced to you during the period of your investigation of the Company in an executive or management level position. The preceding sentence\ndoes not, however, prohibit you or your Affiliates from making general solicitations for employment by means of advertisements, public notices,\nrecruiting agencies or internal or external websites or job search engines or, directly or indirectly, hiring any person who (i) responds thereto,\n(ii) contacts you or your Affiliates on their own initiative without prior solicitation by or on behalf of you or your Affiliates, or (iii) ceases to be\nemployed by the Company without prior solicitation by or on behalf of you or your Affiliates.\n13. Neither you nor your Representatives or any other person acting on your behalf will, directly or indirectly, without the prior written consent\nof the Company’s Board of Directors or an authorized committee thereof, provide information pertaining to or otherwise engage in any\ndiscussions with any executive officer or director of the Company (i) regarding employment with you, your Affiliates or the Company following\nthe consummation of a Transaction or (ii) regarding compensation, equity awards or other employee benefits that may be offered in connection\nwith the employment of such person by you, your Affiliates or the Company following the consummation of a Transaction.\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 5\n14. Each party hereto agrees that money damages may not be a sufficient remedy for any breach of this Agreement by the other party or it\nRepresentatives and that, in addition to all other remedies that may be available to such party, each party shall be entitled to seek specific\nperformance and injunctive or other equitable relief as a remedy for any such breach. If any provision or portion of this Agreement is determined\nby a court of competent jurisdiction to be invalid or unenforceable for any reason, in whole or in part, the remaining provisions of this\nAgreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by applicable law.\n15. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware. Each party hereto\nhereby irrevocably and unconditionally submits to the exclusive jurisdiction of any State or Federal court sitting in Delaware over any suit,\naction or proceeding arising out of or relating to this Agreement. Each party hereto hereby irrevocably and unconditionally waive any objection\nto the placing of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding\nbrought in any such court has been brought in an inconvenient forum.\n16. This Agreement may be executed in two or more counterparts, each of which will be deemed to be an original copy of this Agreement, and\nall of which, when taken together, shall be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of\nsignature pages by facsimile transmission or electronic mail in .pdf or similar format shall constitute effective execution and delivery of this\nAgreement as to the parties. For purposes of this Agreement any reference to “written” or “in writing” shall be deemed to include\ncorrespondence by signed letter or facsimile or by e-mail.\n17. During the Restricted Period, (i) the Company agrees to refrain from, and to cause its officers and directors to refrain from, any derogatory or\ndefamatory statements or communications concerning you or any of your officers or directors, and (ii) you agree to refrain from, and to cause\nyour officers and directors to refrain from, any derogatory or defamatory statements or communications concerning the Company or any of its\nofficers or directors.\n18. Unless otherwise provided herein, this Agreement shall terminate on the earlier of (i) the date of entry into of a definitive agreement\nregarding a Transaction with you, and (ii) January 1, 2017.\nIf you are in agreement with the foregoing, please so indicate by signing, dating and returning one copy of this Agreement, which will constitute\nour agreement with respect to the matters set forth herein.\nVery truly yours,\nDestination Maternity Corporation\nBy: /s/ Anthony M. Romano\nAnthony M. Romano\nPresident and Chief Executive Officer\nOrchestra-Prémaman, S.A.\nMarch 15, 2016\nPage 6\nConfirmed and Agreed to:\nOrchestra-Prémaman, S.A.\nBy: /s/ Pierre Mestre\nPierre Mestre, Chairman and President
+b588849d6c371972f08a83b280c7d9b2.pdf	effective_date jurisdiction party term	EX-10 2 c98802exv10.htm AGREEMENT\nExhibit 10\nAGREEMENT\nTHIS AGREEMENT (“Agreement”) is made as of the 29th day of September, 2005, by and between Paul B. Mulhollem (“Mulhollem”) and\nArcher-Daniels-Midland Company, a Delaware corporation (“ADM”).\nWITNESSETH:\nWHEREAS, Mulhollem has been employed by ADM in the capacity of President and Chief Operating Officer; and\nWHEREAS, Mulhollem and ADM desire to effect an amicable separation of employment, without litigation or controversy, in light of\nMulhollem’s September 15, 2005 retirement from ADM.\nNOW, THEREFORE, in consideration of the promises and mutual covenants contained herein, it is agreed as follows:\n1. Upon his retirement, Mulhollem became entitled to certain benefits as set forth in this paragraph 1. These benefits are subject to Mulhollem\nremaining retired (within the meaning of the ADM Retirement Plan as in effect on the date hereof) and may be forfeited if he ceases to be retired\n(other than with respect to his consultation and cooperation obligations to ADM set forth herein), and are composed of the following:\na. The restricted stock granted to Mulhollem in the Restricted Stock Award Agreements dated August 8, 2005 and August 19, 2004 will\ncontinue to vest according to the terms of those agreements. Mulhollem’s separation from ADM shall conclusively be deemed to be\npursuant to “Retirement,” as such term is used in the various stock award and stock option agreements which Mulhollem participates in.\nMulhollem is entitled to exercise all vested stock options according to the terms of the applicable stock option agreements between him and\nADM;\nb. Mulhollem is permitted to roll over all amounts in his 401(k)/ESOP account into a self directed IRA;\nc. Mulhollem will receive all salary he has previously deferred pursuant to the ADM Deferred Compensation Plan(s) in accordance with\nthe terms of such plan(s); and\nd. Mulhollem is permitted to participate in any retiree benefit programs for which he is eligible.\n2. Non-competition, etc.\na. As ADM’s President and Chief Operating Officer (“COO”), Mulhollem had direct access to and personal knowledge of ADM’s most\nimportant proprietary business information including, but not limited to, business plans and strategies, financial information, trading and\nhedging strategies, and operational methods, plans and strategies. This information is proprietary to ADM and subject to reasonable efforts\nby ADM to secure its confidentiality. This proprietary information has significant value to ADM as it provides ADM with a strategic\nadvantage over it competitors. Were this information provided to ADM’s competitors, ADM would be irreparably harmed. ADM and\nMulhollem agree that if Mulhollem were to work for one of ADM’s competitors within the next three years, he would be unable to perform\nhis duties without disclosing ADM’s confidential and proprietary business information.\nb. Consequently, without the prior written consent of ADM, which consent must be signed by the Chief Executive or President of ADM\nuntil September 15, 2008, Mulhollem shall not own any interest in, except the\n2\nownership of stock in a publicly-traded company, take any employment with, or act as a director, officer, agent, consultant, advisor,\nindependent contractor or in any other capacity whatsoever, directly or indirectly, with or to any person, corporation, partnership, limited\nliability company, firm, joint venture or any other form of entity, anywhere in the world, that competes with ADM or any of its subsidiaries\nor affiliates or provides the same goods or services as ADM or any of its subsidiaries or affiliates.\nc. Mulhollem acknowledges that, in light of his responsibilities while employed as ADM’s President and COO, the scope of these post-\nemployment restrictions is reasonable and that if he were to come out of retirement, he would have ample job opportunities based upon his\nexperience and education. Mulhollem further acknowledges that a violation of this paragraph 2 would cause irreparable damage to ADM\nand that in the event of a breach or threatened breach, hereof, ADM would be entitled to injunctive relief, without the posting of any bond,\nin addition to such other relief as may be appropriate at law or in equity.\nd. For the period from the Effective Date of this Agreement through September 15, 2008, Mulhollem shall not hire or solicit for\nemployment any employee on the payroll of ADM or any of its subsidiaries or affiliates.\n3. The Non-Disclosure Agreement between ADM and Mulhollem dated January 6, 1992, a copy of which is marked Exhibit A, attached\nhereto and by this reference incorporated herein, shall remain in full force and effect in accordance with its terms.\n4. In consideration of the post-employment restrictions placed on Mulhollem in this Agreement and the continuing application of the Non-\nDisclosure Agreement, ADM shall\n3\nprovide Mulhollem the following valuable consideration to which he would not otherwise have been entitled:\na. ADM shall pay Mulhollem the cash value of the restricted stock granted to him under the terms of the October 14, 2003 Restricted Stock\nAward Agreement as provided for herein. The amount shall be determined by multiplying the number of shares of restricted stock by\n$23.16, the closing price for ADM’s Common Stock on September 15, 2005. Payments shall be made as follows:\ni.25% of the amount on the Effective Date of this Agreement;\nii.25% of the amount on September 15, 2006, provided Mulhollem has fully complied with paragraphs 2 and 3 of this Agreement;\niii.25% of the amount on September 15, 2007, provided Mulhollem has fully complied with paragraphs 2 and 3 of this Agreement; and\niv.25% of the amount on September 15, 2008, provided Mulhollem has fully complied with paragraphs 2 and 3 of this Agreement.\nb. ADM shall retain Mulhollem as a consultant for a three-year period from September 15, 2005 expiring September 15, 2008. Mulhollem\nshall perform such reasonable duties as he may be requested to perform by ADM’s Chief Executive. ADM shall compensate Mulhollem by\npaying him $550,000 per year (payable monthly in arrears) for his consulting services provided Mulhollem has fully complied with\nparagraphs 2 and 3 of this Agreement.\n4\n5. Release\na. Mulhollem hereby forever releases ADM, and its subsidiaries and affiliates and each of ADM’s and its subsidiaries’ and affilicates’\nofficers, directors, representatives, shareholders, agents, employees, predecessors, successors and assigns (collectively “Releasees”), from\nany and all complaints, charges, claims, liabilities, demands, debts, accounts, obligations, promises, suits, actions, causes of action,\ndemands in law or equity, including claims for damages, attorneys’ fees or costs, whether known or unknown, which Mulhollem now has,\nor claims to have, or which Mulhollem at any time may have had, or claimed to have, or which Mulhollem at any time hereafter may have,\nor claim to have, arising at any time in the past to and including the date of this Agreement, including, but without limiting the generality of\nthe foregoing, any matters relating in any way to Mulhollem’s employment relationship with ADM or his retirement from ADM.\nb. The claims, rights and obligations that Mulhollem is hereby releasing include, but are not limited to:\ni. those for breach of contract, breach of implied contract, breach of implied covenant of good faith and fair dealing, wrongful discharge,\nretaliatory discharge, constructive discharge, and any other common law or statutory claims now or hereafter recognized;\nii. those for discrimination (including but not limited to claims for discrimination, harassment or retaliation on account of gender, age,\nhandicap, medical condition or disability, national origin, race, color, religion, sexual preference, or veteran status) which Mulhollem\nmight\n5\nhave or might have had under the Age Discrimination in Employment Act, Title VII of the 1964 Civil Rights Act, the Civil Rights Act\nof 1866, the Americans with Disabilities Act, the Family and Medical Leave Act, the Rehabilitation Act of 1973, the Illinois\nConstitution, the Illinois Human Rights Act, the Illinois Wage Payment and Calculation Act, the Illinois Minimum Wage Law, and any\nother federal, state or local laws, statutes, orders, regulations or enactments of any type. By signing this Agreement, Mulhollem agrees to\ngive up, or waive, any rights or claims which he may have had under the Age Discrimination in Employment Act of 1967, 29 U.S .C.\n§621 et. seq., the Older Worker Benefit Protection Act, or any other statutes or other laws, which are based on the actions of any of the\nReleasees that occurred up through the date that Mulhollem signs this Agreement; and,\niii. Any and all claims for attorneys’ fees and costs.\nc. Mulhollem further acknowledges and agrees that this Agreement shall operate as a complete bar to recovery in any and all litigation,\ncharges, complaints, grievances or demands of any kind whatsoever now pending or now contemplated by Mulhollem or which might at\nany time be filed by Mulhollem related to his employment with ADM and his retirement from ADM. Each and all of the said claims are\nhereby fully and finally settled, compromised and released.\nd. Nothing in this paragraph 5 is intended to operate as a release, waiver or forfeiture of Mulhollem’s rights, and ADM’s obligations, under\n(i) this Agreement, (ii) any 401(k), ESOP or other retirement plan which Mulhollem\n6\nparticipates in as of the date hereof, and (iii) any indemnification or similar right relating to actual or alleged acts or omissions by\nMulhollem in his office capacity as an officer of ADM prior to the date hereof.\n6. In consideration for the Release in paragraph 5, and Mulhollem’s other covenants herein, ADM shall:\na. pay Mulhollem, on the Effective Date of this Agreement, an amount equal to the aggregate difference between the option price and\n$23.16, the closing share price of ADM common stock on September 15, 2005 for all of Mulhollem’s unvested stock options as of the date\nhereof.;\nb. transfer to Mulhollem unencumbered title to Mulhollem’s company car on or before December 31, 2005; and\nc. provide Mulhollem with coverage under ADM’s retiree medical plan.\n7. Upon ADM’s request, Mulhollem shall provide his reasonable cooperation relative to any matter which arises within Mulhollem’s former\narea(s) of responsibility with ADM which is based upon facts occurring or circumstances existing prior to the date hereof. ADM shall reimburse\nMulhollem for any out-of-pocket expenses reasonably incurred by Mulhollem providing any such requested cooperation upon presentation of\nappropriate supporting documentation.\n8. Mulhollem expressly acknowledges that:\na. He was provided with a copy of this Agreement and was advised in writing to consult with an attorney concerning its meaning and\neffect.\nb. He was provided twenty-one (21) days to consider whether to enter into this Agreement. Subsequently, Mulhollem retained the law firm\nof Meyer Capel to advise him with respect to this Agreement.\n7\nc. He understands he may revoke this Agreement in writing addressed and delivered to ADM, c/o the General Counsel’s office, within\nseven (7) days after the execution of this Agreement in which event this Agreement will be of no force and effect and he will be entitled to\nno payments or benefits that were to be paid pursuant to this Agreement. Unless revoked in accordance with this section 8(c), this\nAgreement shall be effective on the 8th day following the date of delivery of an executed copy of this Agreement to ADM (the “Effective\nDate”).\nd. He was given an adequate opportunity to consider this Agreement and he has read and understands the meaning and effect of this\nAgreement.\ne. He voluntarily agreed to the terms of the Agreement, which terms were determined through negotiation, and he intends to be legally\nbound by the same.\nf. The consideration provided herein is sufficient and is consideration to which he is not otherwise entitled to receive.\n9. Mulhollem agrees that the terms and conditions of this Agreement and the payments made pursuant hereto shall remain confidential and\nthat he will not disclose the same to any person, except his immediate family, his legal and financial advisors, or as required by law. Mulhollem\nacknowledges that ADM may be required to publicly disclose this Agreement and its terms in filings with the United States Securities and\nExchange Commission.\n10. In the event of a breach by Mulhollem of the provisions of paragraphs 2 or 3 of this agreement, ADM shall be released from the\nobligations to make any further payments\n8\npursuant to paragraph 4 in addition to pursuing any other available remedy in law or equity, including without limitation specific performance\nand injunctive relief.\n11. Mulhollem shall not request or apply for employment with ADM or any of its subsidiaries.\n12. This Agreement shall be governed by the laws of the State of Illinois.\n13. Mulhollem agrees that he will not take any action, or make any statement, whether orally or in writing, which manifestly and\ndemonstrably disparages or impugns the reputation or goodwill of ADM, its subsidiaries, affiliates or any of their officers, directors or\nemployees. Mulhollem will not interfere with the relationships between ADM, its subsidiaries or affiliates and any of their customers, suppliers,\nvendors, distributors or representatives. Moreover, Mulhollem further agrees that he shall make no public statements, or request, cause or solicit\nany third-party to make any public statements, including without limitation to the media, regarding the circumstances of his retirement.\n14. The parties agree that the provisions in paragraphs 2, 3 and 5 are a critical and non-severable part of this Agreement. By executing this\nAgreement, the parties state that they have read the aforementioned paragraphs and after consulting counsel of their choice agree that they are\nreasonable and protect the parties’ interests. As such, the parties specifically agree that if Mulhollem seeks to invalidate or limit the scope of any\nof these provisions for any reason, this Agreement shall have no force or effect. If Mulhollem brings any action seeking to invalidate or limit the\nscope of paragraphs 2 or 3, Mulhollem shall return to ADM all considerations paid to him pursuant to paragraph 4 of this Agreement and\nMulhollem shall have no entitlement to any future payments or benefits provided pursuant to paragraph 4 of this Agreement.\n9\n15. Mulhollem shall not be in breach of this Agreement or any obligation unless and until written notice of such breach is given to Mulhollem\nand Mulhollem is afforded a reasonable opportunity to cure such breach. Such notice shall be delivered via registered mail, return receipt\nrequested, and shall describe in detail (i) the acts or omissions which ADM believes constitute such breach, and (ii) the steps, acts or omissions\nwhich must be taken by Mulhollem to correct and cure any such breach. ADM shall not be allowed to terminate this Agreement or cease\nperformance hereunder if Mulhollem is able to cure any breach within thirty (30) days following delivery of a notice of breach.\n16. This Agreement constitutes the entire agreement of the parties and supersedes any and all prior agreements and understandings between\nMulhollem and ADM, whether oral or in writing. This Agreement may not be revoked, amended, modified or revised except by a writing\nexecuted by Mulhollem and the Chief Executive or President of ADM.\n17. In the event of litigation in connection with the interpretation or enforcement of this Agreement, the prevailing party in such action shall\nbe entitled to reimbursement from the other party, in addition to any other relief awarded, all costs and fees paid or incurred by the prevailing\nparty in such action, including, without limitation, reasonable attorneys’ fees and costs.\n18. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns.\n(signature page follows)\n10\nIN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written.\n/s/ Paul B. Mulhollem\nPAUL B. MULHOLLEM\nDated: September 29, 2005\n/s/ Stuart E. Funderburg\nWITNESS\nARCHER-DANIELS-MIDLAND COMPANY\nBy: /s/ Douglas J. Schmalz\nDouglas J. Schmalz\nIts: Senior Vice President and Chief Financial\nOfficer\nDated: September 29, 2005\n11	EX-10 2 c98802exv10.htm AGREEMENT\nExhibit 10\nAGREEMENT\nTHIS AGREEMENT (“Agreement”) is made as of the 29th day of September, 2005, by and between Paul B. Mulhollem (“Mulhollem”) and\nArcher-Daniels-Midland Company, a Delaware corporation (“ADM?”).\nWITNESSETH:\nWHEREAS, Mulhollem has been employed by ADM in the capacity of President and Chief Operating Officer; and\nWHEREAS, Mulhollem and ADM desire to effect an amicable separation of employment, without litigation or controversy, in light of\nMulhollem’s September 15, 2005 retirement from ADM.\nNOW, THEREFORE, in consideration of the promises and mutual covenants contained herein, it is agreed as follows:\n1. Upon his retirement, Mulhollem became entitled to certain benefits as set forth in this paragraph 1. These benefits are subject to Mulhollem\nremaining retired (within the meaning of the ADM Retirement Plan as in effect on the date hereof) and may be forfeited if he ceases to be retired\n(other than with respect to his consultation and cooperation obligations to ADM set forth herein), and are composed of the following:\na. The restricted stock granted to Mulhollem in the Restricted Stock Award Agreements dated August 8, 2005 and August 19, 2004 will\ncontinue to vest according to the terms of those agreements. Mulhollem’s separation from ADM shall conclusively be deemed to be\npursuant to “Retirement,” as such term is used in the various stock award and stock option agreements which Mulhollem participates in.\nMulhollem is entitled to exercise all vested stock options according to the terms of the applicable stock option agreements between him and\nADM;\nb. Mulhollem is permitted to roll over all amounts in his 401(k)/ESOP account into a self directed IRA;\nc. Mulhollem will receive all salary he has previously deferred pursuant to the ADM Deferred Compensation Plan(s) in accordance with\nthe terms of such plan(s); and\nd. Mulhollem is permitted to participate in any retiree benefit programs for which he is eligible.\n2. Non-competition, etc.\na. As ADM’s President and Chief Operating Officer (“COO”), Mulhollem had direct access to and personal knowledge of ADM’s most\nimportant proprietary business information including, but not limited to, business plans and strategies, financial information, trading and\nhedging strategies, and operational methods, plans and strategies. This information is proprietary to ADM and subject to reasonable efforts\nby ADM to secure its confidentiality. This proprietary information has significant value to ADM as it provides ADM with a strategic\nadvantage over it competitors. Were this information provided to ADM’s competitors, ADM would be irreparably harmed. ADM and\nMulhollem agree that if Mulhollem were to work for one of ADM’s competitors within the next three years, he would be unable to perform\nhis duties without disclosing ADM’s confidential and proprietary business information.\nb. Consequently, without the prior written consent of ADM, which consent must be signed by the Chief Executive or President of ADM\nuntil September 15, 2008, Mulhollem shall not own any interest in, except the\n2\nownership of stock in a publicly-traded company, take any employment with, or act as a director, officer, agent, consultant, advisor,\nindependent contractor or in any other capacity whatsoever, directly or indirectly, with or to any person, corporation, partnership, limited\nliability company, firm, joint venture or any other form of entity, anywhere in the world, that competes with ADM or any of its subsidiaries\nor affiliates or provides the same goods or services as ADM or any of its subsidiaries or affiliates.\nc. Mulhollem acknowledges that, in light of his responsibilities while employed as ADM’s President and COO, the scope of these post-\nemployment restrictions is reasonable and that if he were to come out of retirement, he would have ample job opportunities based upon his\nexperience and education. Mulhollem further acknowledges that a violation of this paragraph 2 would cause irreparable damage to ADM\nand that in the event of a breach or threatened breach, hereof, ADM would be entitled to injunctive relief, without the posting of any bond,\nin addition to such other relief as may be appropriate at law or in equity.\nd. For the period from the Effective Date of this Agreement through September 15, 2008, Mulhollem shall not hire or solicit for\nemployment any employee on the payroll of ADM or any of its subsidiaries or affiliates.\n3. The Non-Disclosure Agreement between ADM and Mulhollem dated January 6, 1992, a copy of which is marked Exhibit A, attached\nhereto and by this reference incorporated herein, shall remain in full force and effect in accordance with its terms.\n4. In consideration of the post-employment restrictions placed on Mulhollem in this Agreement and the continuing application of the Non-\nDisclosure Agreement, ADM shall\nprovide Mulhollem the following valuable consideration to which he would not otherwise have been entitled:\na. ADM shall pay Mulhollem the cash value of the restricted stock granted to him under the terms of the October 14, 2003 Restricted Stock\nAward Agreement as provided for herein. The amount shall be determined by multiplying the number of shares of restricted stock by\n$23.16, the closing price for ADM’s Common Stock on September 15, 2005. Payments shall be made as follows:\ni.25% of the amount on the Effective Date of this Agreement;\nii.25% of the amount on September 15, 2006, provided Mulhollem has fully complied with paragraphs 2 and 3 of this Agreement;\niii.25% of the amount on September 15, 2007, provided Mulhollem has fully complied with paragraphs 2 and 3 of this Agreement; and\niv.25% of the amount on September 15, 2008, provided Mulhollem has fully complied with paragraphs 2 and 3 of this Agreement.\nb. ADM shall retain Mulhollem as a consultant for a three-year period from September 15, 2005 expiring September 15, 2008. Mulhollem\nshall perform such reasonable duties as he may be requested to perform by ADM’s Chief Executive. ADM shall compensate Mulhollem by\npaying him $550,000 per year (payable monthly in arrears) for his consulting services provided Mulhollem has fully complied with\nparagraphs 2 and 3 of this Agreement.\n5. Release\na. Mulhollem hereby forever releases ADM, and its subsidiaries and affiliates and each of ADM’s and its subsidiaries’ and affilicates’\nofficers, directors, representatives, shareholders, agents, employees, predecessors, successors and assigns (collectively “Releasees”), from\nany and all complaints, charges, claims, liabilities, demands, debts, accounts, obligations, promises, suits, actions, causes of action,\ndemands in law or equity, including claims for damages, attorneys’ fees or costs, whether known or unknown, which Mulhollem now has,\nor claims to have, or which Mulhollem at any time may have had, or claimed to have, or which Mulhollem at any time hereafter may have,\nor claim to have, arising at any time in the past to and including the date of this Agreement, including, but without limiting the generality of\nthe foregoing, any matters relating in any way to Mulhollem’s employment relationship with ADM or his retirement from ADM.\nb. The claims, rights and obligations that Mulhollem is hereby releasing include, but are not limited to:\ni. those for breach of contract, breach of implied contract, breach of implied covenant of good faith and fair dealing, wrongful discharge,\nretaliatory discharge, constructive discharge, and any other common law or statutory claims now or hereafter recognized;\nii. those for discrimination (including but not limited to claims for discrimination, harassment or retaliation on account of gender, age,\nhandicap, medical condition or disability, national origin, race, color, religion, sexual preference, or veteran status) which Mulhollem\nmight\nhave or might have had under the Age Discrimination in Employment Act, Title VII of the 1964 Civil Rights Act, the Civil Rights Act\nof 1866, the Americans with Disabilities Act, the Family and Medical Leave Act, the Rehabilitation Act of 1973, the Illinois\nConstitution, the Illinois Human Rights Act, the Illinois Wage Payment and Calculation Act, the Illinois Minimum Wage Law, and any\nother federal, state or local laws, statutes, orders, regulations or enactments of any type. By signing this Agreement, Mulhollem agrees to\ngive up, or waive, any rights or claims which he may have had under the Age Discrimination in Employment Act of 1967, 29 U.S.C.\n§621 et. seq., the Older Worker Benefit Protection Act, or any other statutes or other laws, which are based on the actions of any of the\nReleasees that occurred up through the date that Mulhollem signs this Agreement; and,\niii. Any and all claims for attorneys’ fees and costs.\nc. Mulhollem further acknowledges and agrees that this Agreement shall operate as a complete bar to recovery in any and all litigation,\ncharges, complaints, grievances or demands of any kind whatsoever now pending or now contemplated by Mulhollem or which might at\nany time be filed by Mulhollem related to his employment with ADM and his retirement from ADM. Each and all of the said claims are\nhereby fully and finally settled, compromised and released.\nd. Nothing in this paragraph 5 is intended to operate as a release, waiver or forfeiture of Mulhollem’s rights, and ADM’s obligations, under\n(i) this Agreement, (ii) any 401(k), ESOP or other retirement plan which Mulhollem\n6\nparticipates in as of the date hereof, and (iii) any indemnification or similar right relating to actual or alleged acts or omissions by\nMulhollem in his office capacity as an officer of ADM prior to the date hereof.\n6. In consideration for the Release in paragraph 5, and Mulhollem’s other covenants herein, ADM shall:\na. pay Mulhollem, on the Effective Date of this Agreement, an amount equal to the aggregate difference between the option price and\n$23.16, the closing share price of ADM common stock on September 15, 2005 for all of Mulhollem’s unvested stock options as of the date\nhereof.;\nb. transfer to Mulhollem unencumbered title to Mulhollem’s company car on or before December 31, 2005; and\nc. provide Mulhollem with coverage under ADM’s retiree medical plan.\n7. Upon ADM’s request, Mulhollem shall provide his reasonable cooperation relative to any matter which arises within Mulhollem’s former\narea(s) of responsibility with ADM which is based upon facts occurring or circumstances existing prior to the date hereof. ADM shall reimburse\nMulhollem for any out-of-pocket expenses reasonably incurred by Mulhollem providing any such requested cooperation upon presentation of\nappropriate supporting documentation.\n8. Mulhollem expressly acknowledges that:\na. He was provided with a copy of this Agreement and was advised in writing to consult with an attorney concerning its meaning and\neffect.\nb. He was provided twenty-one (21) days to consider whether to enter into this Agreement. Subsequently, Mulhollem retained the law firm\nof Meyer Capel to advise him with respect to this Agreement.\nc. He understands he may revoke this Agreement in writing addressed and delivered to ADM, c/o the General Counsel’s office, within\nseven (7) days after the execution of this Agreement in which event this Agreement will be of no force and effect and he will be entitled to\nno payments or benefits that were to be paid pursuant to this Agreement. Unless revoked in accordance with this section 8(c), this\nAgreement shall be effective on the 8th day following the date of delivery of an executed copy of this Agreement to ADM (the “Effective\nDate”).\nd. He was given an adequate opportunity to consider this Agreement and he has read and understands the meaning and effect of this\nAgreement.\ne. He voluntarily agreed to the terms of the Agreement, which terms were determined through negotiation, and he intends to be legally\nbound by the same.\nf. The consideration provided herein is sufficient and is consideration to which he is not otherwise entitled to receive.\n9. Mulhollem agrees that the terms and conditions of this Agreement and the payments made pursuant hereto shall remain confidential and\nthat he will not disclose the same to any person, except his immediate family, his legal and financial advisors, or as required by law. Mulhollem\nacknowledges that ADM may be required to publicly disclose this Agreement and its terms in filings with the United States Securities and\nExchange Commission.\n10. In the event of a breach by Mulhollem of the provisions of paragraphs 2 or 3 of this agreement, ADM shall be released from the\nobligations to make any further payments\npursuant to paragraph 4 in addition to pursuing any other available remedy in law or equity, including without limitation specific performance\nand injunctive relief.\n11. Mulhollem shall not request or apply for employment with ADM or any of its subsidiaries.\n12. This Agreement shall be governed by the laws of the State of Illinois.\n13. Mulhollem agrees that he will not take any action, or make any statement, whether orally or in writing, which manifestly and\ndemonstrably disparages or impugns the reputation or goodwill of ADM, its subsidiaries, affiliates or any of their officers, directors or\nemployees. Mulhollem will not interfere with the relationships between ADM, its subsidiaries or affiliates and any of their customers, suppliers,\nvendors, distributors or representatives. Moreover, Mulhollem further agrees that he shall make no public statements, or request, cause or solicit\nany third-party to make any public statements, including without limitation to the media, regarding the circumstances of his retirement.\n14. The parties agree that the provisions in paragraphs 2, 3 and 5 are a critical and non-severable part of this Agreement. By executing this\nAgreement, the parties state that they have read the aforementioned paragraphs and after consulting counsel of their choice agree that they are\nreasonable and protect the parties’ interests. As such, the parties specifically agree that if Mulhollem seeks to invalidate or limit the scope of any\nof these provisions for any reason, this Agreement shall have no force or effect. If Mulhollem brings any action seeking to invalidate or limit the\nscope of paragraphs 2 or 3, Mulhollem shall return to ADM all considerations paid to him pursuant to paragraph 4 of this Agreement and\nMulhollem shall have no entitlement to any future payments or benefits provided pursuant to paragraph 4 of this Agreement.\n9\n15. Mulhollem shall not be in breach of this Agreement or any obligation unless and until written notice of such breach is given to Mulhollem\nand Mulhollem is afforded a reasonable opportunity to cure such breach. Such notice shall be delivered via registered mail, return receipt\nrequested, and shall describe in detail (i) the acts or omissions which ADM believes constitute such breach, and (ii) the steps, acts or omissions\nwhich must be taken by Mulhollem to correct and cure any such breach. ADM shall not be allowed to terminate this Agreement or cease\nperformance hereunder if Mulhollem is able to cure any breach within thirty (30) days following delivery of a notice of breach.\n16. This Agreement constitutes the entire agreement of the parties and supersedes any and all prior agreements and understandings between\nMulhollem and ADM, whether oral or in writing. This Agreement may not be revoked, amended, modified or revised except by a writing\nexecuted by Mulhollem and the Chief Executive or President of ADM.\n17. In the event of litigation in connection with the interpretation or enforcement of this Agreement, the prevailing party in such action shall\nbe entitled to reimbursement from the other party, in addition to any other relief awarded, all costs and fees paid or incurred by the prevailing\nparty in such action, including, without limitation, reasonable attorneys’ fees and costs.\n18. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns.\n(signature page follows)\n10\nIN WITNESS WHEREOQF, the parties have executed this Agreement on the date first above written. /s/ Stuart E. Funderburg\nWITNESS\n/s/ Paul B. Mulhollem\nPAUL B. MULHOLLEM\nDated: September 29, 2005\nARCHER-DANIELS-MIDLAND COMPANY\nBy: /s/ Douglas J. Schmalz\nDouglas J. Schmalz\nIts: Senior Vice President and Chief Financial\nOfficer\nDated: September 29, 2005\n11	EX-10 2 c98802exv10.htm AGREEMENT\nExhibit 10\nAGREEMENT\nTHIS AGREEMENT ("Agreement") is made as of the 29th day of September, 2005, by and between Paul B. Mulhollem ("Mulhollem") and\nArcher-Daniels-Midland Company, a Delaware corporation ("ADM").\nWITNESSETH:\nWHEREAS, Mulhollem has been employed by ADM in the capacity of President and Chief Operating Officer; and\nWHEREAS, Mulhollem and ADM desire to effect an amicable separation of employment, without litigation or controversy, in light of\nMulhollem's September 15, 2005 retirement from ADM.\nNOW, THEREFORE, in consideration of the promises and mutual covenants contained herein, it is agreed as follows:\n1. Upon his retirement, Mulhollem became entitled to certain benefits as set forth in this paragraph 1. These benefits are subject to Mulhollem\nremaining retired (within the meaning of the ADM Retirement Plan as in effect on the date hereof) and may be forfeited if he ceases to be retired\n(other than with respect to his consultation and cooperation obligations to ADM set forth herein), and are composed of the following:\na. The restricted stock granted to Mulhollem in the Restricted Stock Award Agreements dated August 8, 2005 and August 19, 2004 will\ncontinue to vest according to the terms of those agreements. Mulhollem's separation from ADM shall conclusively be deemed to be\npursuant to "Retirement," as such term is used in the various stock award and stock option agreements which Mulhollem participates in.\nMulhollem is entitled to exercise all vested stock options according to the terms of the applicable stock option agreements between him and\nADM;\nb. Mulhollem is permitted to roll over all amounts in his 401(k)/ESOP account into a self directed IRA;\nC.\nMulhollem will receive all salary he has previously deferred pursuant to the ADM Deferred Compensation Plan(s) in accordance with\nthe terms of such plan(s); and\nd. Mulhollem is permitted to participate in any retiree benefit programs for which he is eligible.\n2. Non-competition,_ etc.\na.\nAs ADM's President and Chief Operating Officer ("COO"), Mulhollem had direct access to and personal knowledge of ADM's most\nimportant proprietary business information including, but not limited to, business plans and strategies, financial information, trading and\nhedging strategies, and operational methods, plans and strategies. This information is proprietary to ADM and subject to reasonable efforts\nby ADM to secure its confidentiality. This proprietary information has significant value to ADM as it provides ADM with a strategic\nadvantage over it competitors. Were this information provided to ADM's competitors, ADM would be irreparably harmed. ADM and\nMulhollem agree that if Mulhollem were to work for one of ADM's competitors within the next three years, he would be unable to perform\nhis duties without disclosing ADM's confidential and proprietary business information.\nb. Consequently, without the prior written consent of ADM, which consent must be signed by the Chief Executive or President of ADM\nuntil September 15, 2008, Mulhollem shall not own any interest in, except the\n2\nownership of stock in a publicly-traded company, take any employment with, or act as a director, officer, agent, consultant, advisor,\nindependent contractor or in any other capacity whatsoever, directly or indirectly, with or to any person, corporation, partnership, limited\nliability company, firm, joint venture or any other form of entity, anywhere in the world, that competes with ADM or any of its subsidiaries\nor affiliates or provides the same goods or services as ADM or any of its subsidiaries or affiliates.\nC. Mulhollem acknowledges that, in light of his responsibilities while employed as ADM's President and COO, the scope of these post-\nemployment restrictions is reasonable and that if he were to come out of retirement, he would have ample job opportunities based upon his\nexperience and education. Mulhollem further acknowledges that a violation of this paragraph 2 would cause irreparable damage to ADM\nand\nthat in the event of a breach or threatened breach, hereof, ADM would be entitled to injunctive relief, without the posting of any bond,\nin addition to such other relief as may be appropriate at law or in equity.\nd. For the period from the Effective Date of this Agreement through September 15, 2008, Mulhollem shall not hire or solicit for\nemployment any employee on the payroll of ADM or any of its subsidiaries or affiliates.\n3.\nThe Non-Disclosure Agreement between ADM and Mulhollem dated January 6, 1992, a copy of which is marked Exhibit A, attached\nhereto and by this reference incorporated herein, shall remain in full force and effect in accordance with its terms.\n4. In consideration of the post-employment restrictions placed on Mulhollem in this Agreement and the continuing application of the Non-\nDisclosure Agreement, ADM shall\n3\nprovide Mulhollem the following valuable consideration to which he would not otherwise have been entitled:\na.\nADM shall pay Mulhollem the cash value of the restricted stock granted to him under the terms of the October 14, 2003 Restricted Stock\nAward Agreement as provided for herein. The amount shall be determined by multiplying the number of shares of restricted stock by\n$23.16, the closing price for ADM's Common Stock on September 15, 2005. Payments shall be made as follows:\ni.25% of the amount on the Effective Date of this Agreement;\nii.25% of the amount on September 15, 2006, provided Mulhollem has fully complied with paragraphs 2 and 3 of this Agreement;\niii.25% of the amount on September 15, 2007, provided Mulhollem has fully complied with paragraphs 2 and 3 of this Agreement; and\niv.25% of the amount on September 15, 2008, provided Mulhollem has fully complied with paragraphs 2 and 3 of this Agreement.\nb. ADM shall retain Mulhollem as a consultant for a three-year period from September 15, 2005 expiring September 15, 2008. Mulhollem\nshall perform such reasonable duties as he may be requested to perform by ADM's Chief Executive. ADM shall compensate Mulhollem by\npaying him $550,000 per year (payable monthly in arrears) for his consulting services provided Mulhollem has fully complied with\nparagraphs 2 and 3 of this Agreement.\n4\n5. Release\na. Mulhollem hereby forever releases ADM, and its subsidiaries and affiliates and each of ADM's and its subsidiaries' and affilicates'\nofficers, directors, representatives, shareholders, agents, employees, predecessors, successors and assigns (collectively "Releasees"), from\nany and all complaints, charges, claims, liabilities, demands, debts, accounts, obligations, promises, suits, actions, causes of action,\ndemands in law or equity, including claims for damages, attorneys' fees or costs, whether known or unknown, which Mulhollem now has,\nor claims to have, or which Mulhollem at any time may have had, or claimed to have, or which Mulhollem at any time hereafter may have,\nor claim to have, arising at any time in the past to and including the date of this Agreement, including, but without limiting the generality of\nthe foregoing, any matters relating in any way to Mulhollem's employment relationship with ADM or his retirement from ADM.\nb. The claims, rights and obligations that Mulhollem is hereby releasing include, but are not limited to:\ni. those for breach of contract, breach of implied contract, breach of implied covenant of good faith and fair dealing, wrongful discharge,\nretaliatory discharge, constructive discharge, and any other common law or statutory claims now or hereafter recognized;\nii. those for discrimination (including but not limited to claims for discrimination, harassment or retaliation on account of gender, age,\nhandicap, medical condition or disability, national origin, race, color, religion, sexual preference, or veteran status) which Mulhollem\nmight\n5\nhave or might have had under the Age Discrimination in Employment Act, Title VII of the 1964 Civil Rights Act, the Civil Rights Act\nof 1866, the Americans with Disabilities Act, the Family and Medical Leave Act, the Rehabilitation Act of 1973, the Illinois\nConstitution, the Illinois Human Rights Act, the Illinois Wage Payment and Calculation Act, the Illinois Minimum Wage Law, and any\nother federal, state or local laws, statutes, orders, regulations or enactments of any type. By signing this Agreement, Mulhollem agrees to\ngive up, or waive, any rights or claims which he may have had under the Age Discrimination in Employment Act of 1967, 29 U.S.C.\n$621 et. seq., the Older Worker Benefit Protection Act, or any other statutes or other laws, which are based on the actions of any of the\nReleasees that occurred up through the date that Mulhollem signs this Agreement; and,\niii. Any and all claims for attorneys' fees and costs.\nC. Mulhollem further acknowledges and agrees that this Agreement shall operate as a complete bar to recovery in any and all litigation,\ncharges,\ncomplaints, grievances or demands of any kind whatsoever now pending or now contemplated by Mulhollem or which might\nat\nany time be filed by Mulhollem related to his employment with ADM and his retirement from ADM. Each and all of the said claims are\nhereby fully and finally settled, compromised and released.\nd. Nothing in this paragraph 5 is intended to operate as a release, waiver or forfeiture of Mulhollem's rights, and ADM's obligations, under\n(i) this Agreement, (ii) any 401(k), ESOP or other retirement plan which Mulhollem\n6\nparticipates in as of the date hereof, and (iii) any indemnification or similar right relating to actual or alleged acts or omissions by\nMulhollem in his office capacity as an officer of ADM prior to the date hereof.\n6. In consideration for the Release in paragraph 5, and Mulhollem's other covenants herein, ADM shall:\na. pay Mulhollem, on the Effective Date of this Agreement, an amount equal to the aggregate difference between the option price and\n$23.16, the closing share price of ADM common stock on September 15, 2005 for all of Mulhollem's unvested stock options as of the\ndate\nhereof.;\nb. transfer to Mulhollem unencumbered title to Mulhollem's company car on or before December 31, 2005; and\nC. provide Mulhollem with coverage under ADM's retiree medical plan.\n7. Upon ADM's request, Mulhollem shall provide his reasonable cooperation relative to any matter which arises within Mulhollem's former\narea(s) of responsibility with ADM which is based upon facts occurring or circumstances existing prior to the date hereof. ADM shall reimburse\nMulhollem for any out-of-pocket expenses reasonably incurred by Mulhollem providing any such requested cooperation upon presentation of\nappropriate supporting documentation.\n8. Mulhollem expressly acknowledges that:\na. He was provided with a copy of this Agreement and was advised in writing to consult with an attorney concerning its meaning and\neffect.\nb. He was provided twenty-one (21) days to consider whether to enter into this Agreement. Subsequently, Mulhollem retained the law firm\nof Meyer Capel to advise him with respect to this Agreement.\n7\nC. He understands he may revoke this Agreement in writing addressed and delivered to ADM, c/o the General Counsel's office, within\nseven (7) days after the execution of this Agreement in which event this Agreement will be of no force and effect and he will be entitled to\nno payments or benefits that were to be paid pursuant to this Agreement. Unless revoked in accordance with this section 8(c), this\nAgreement shall be effective on the 8th day following the date of delivery of an executed copy of this Agreement to ADM (the "Effective\nDate").\nd. He was given an adequate opportunity to consider this Agreement and he has read and understands the meaning and effect of this\nAgreement.\ne.\nHe voluntarily agreed to the terms of the Agreement, which terms were determined through negotiation, and he intends to be legally\nbound by the same.\nf. The consideration provided herein is sufficient and is consideration to which he is not otherwise entitled to receive.\n9. Mulhollem agrees that the terms and conditions of this Agreement and the payments made pursuant hereto shall remain confidential and\nthat\nhe\nwill not disclose the same to any person, except his immediate family, his legal and financial advisors, or as required by law. Mulhollem\nacknowledges that ADM may be required to publicly disclose this Agreement and its terms in filings with the United States Securities and\nExchange Commission.\n10. In the event of a breach by Mulhollem of the provisions of paragraphs 2 or 3 of this agreement, ADM shall be released from the\nobligations to make any further payments\n8\npursuant to paragraph 4 in addition to pursuing any other available remedy in law or equity, including without limitation specific performance\nand injunctive relief.\n11. Mulhollem shall not request or apply for employment with ADM or any of its subsidiaries.\n12. This Agreement shall be governed by the laws of the State of Illinois.\n13. Mulhollem agrees that he will not take any action, or make any statement, whether orally or in writing, which manifestly and\ndemonstrably disparages or impugns the reputation or goodwill of ADM, its subsidiaries, affiliates or any of their officers, directors or\nemployees.\nMulhollem will not interfere with the relationships between ADM, its subsidiaries or affiliates and any of their customers,\nsuppliers,\nvendors, distributors or representatives. Moreover, Mulhollem further agrees that he shall make no public statements, or request, cause or solicit\nany third-party to make any public statements, including without limitation to the media, regarding the circumstances of his retirement.\n14. The parties agree that the provisions in paragraphs 2, 3 and 5 are a critical and non-severable part of this Agreement. By executing this\nAgreement, the parties state that they have read the aforementioned paragraphs and after consulting counsel of their choice agree that they are\nreasonable and protect the parties' interests. As such, the parties specifically agree that if Mulhollem seeks to invalidate or limit the scope of any\nof these provisions for any reason, this Agreement shall have no force or effect. If Mulhollem brings any action seeking to invalidate or limit the\nscope of paragraphs 2 or 3, Mulhollem shall return to ADM all considerations paid to him pursuant to paragraph 4 of this Agreement\nand\nMulhollem shall have no entitlement to any future payments or benefits provided pursuant to paragraph 4 of this Agreement.\n9\n15. Mulhollem shall not be in breach of this Agreement or any obligation unless and until written notice of such breach is given to Mulhollem\nand Mulhollem is afforded a reasonable opportunity to cure such breach. Such notice shall be delivered via registered mail, return receipt\nrequested, and shall describe in detail (i) the acts or omissions which ADM believes constitute such breach, and (ii) the steps, acts or omissions\nwhich must be taken by Mulhollem to correct and cure any such breach. ADM shall not be allowed to terminate this Agreement or cease\nperformance hereunder if Mulhollem is able to cure any breach within thirty (30) days following delivery of a notice of breach.\n16. This Agreement constitutes the entire agreement of the parties and supersedes any and all prior agreements and understandings between\nMulhollem and ADM, whether oral or in writing. This Agreement may not be revoked, amended, modified or revised except by a writing\nexecuted by Mulhollem and the Chief Executive or President of ADM.\n17. In the event of litigation in connection with the interpretation or enforcement of this Agreement, the prevailing party in such action shall\nbe entitled to reimbursement from the other party, in addition to any other relief awarded, all costs and fees paid or incurred by the prevailing\nparty in such action, including, without limitation, reasonable attorneys' fees and costs.\n18. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns\n(signature page follows)\n10\nIN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written.\n/s/ Paul B. Mulhollem\nPAUL B. MULHOLLEM\nDated: September 29, 2005\n/s/ Stuart E. Funderburg\nWITNESS\nARCHER-DANIELS-MIDLAND COMPANY\nBy: /s/ Douglas J. Schmalz\nDouglas J. Schmalz\nIts: Senior Vice President and Chief Financial\nOfficer\nDated: September 29, 2005\n11	EX-10 2 c98802exv10.htm AGREEMENT\nExhibit 10\nAGREEMENT\nTHIS AGREEMENT (“Agreement”) is made as of the 29th day of September, 2005, by and between Paul B. Mulhollem (“Mulhollem”) and\nArcher-Daniels-Midland Company, a Delaware corporation (“ADM”).\nWITNESSETH:\nWHEREAS, Mulhollem has been employed by ADM in the capacity of President and Chief Operating Officer; and\nWHEREAS, Mulhollem and ADM desire to effect an amicable separation of employment, without litigation or controversy, in light of\nMulhollem’s September 15, 2005 retirement from ADM.\nNOW, THEREFORE, in consideration of the promises and mutual covenants contained herein, it is agreed as follows:\n1. Upon his retirement, Mulhollem became entitled to certain benefits as set forth in this paragraph 1. These benefits are subject to Mulhollem\nremaining retired (within the meaning of the ADM Retirement Plan as in effect on the date hereof) and may be forfeited if he ceases to be retired\n(other than with respect to his consultation and cooperation obligations to ADM set forth herein), and are composed of the following:\na. The restricted stock granted to Mulhollem in the Restricted Stock Award Agreements dated August 8, 2005 and August 19, 2004 will\ncontinue to vest according to the terms of those agreements. Mulhollem’s separation from ADM shall conclusively be deemed to be\npursuant to “Retirement,” as such term is used in the various stock award and stock option agreements which Mulhollem participates in.\nMulhollem is entitled to exercise all vested stock options according to the terms of the applicable stock option agreements between him and\nADM;\nb. Mulhollem is permitted to roll over all amounts in his 401(k)/ESOP account into a self directed IRA;\nc. Mulhollem will receive all salary he has previously deferred pursuant to the ADM Deferred Compensation Plan(s) in accordance with\nthe terms of such plan(s); and\nd. Mulhollem is permitted to participate in any retiree benefit programs for which he is eligible.\n2. Non-competition, etc.\na. As ADM’s President and Chief Operating Officer (“COO”), Mulhollem had direct access to and personal knowledge of ADM’s most\nimportant proprietary business information including, but not limited to, business plans and strategies, financial information, trading and\nhedging strategies, and operational methods, plans and strategies. This information is proprietary to ADM and subject to reasonable efforts\nby ADM to secure its confidentiality. This proprietary information has significant value to ADM as it provides ADM with a strategic\nadvantage over it competitors. Were this information provided to ADM’s competitors, ADM would be irreparably harmed. ADM and\nMulhollem agree that if Mulhollem were to work for one of ADM’s competitors within the next three years, he would be unable to perform\nhis duties without disclosing ADM’s confidential and proprietary business information.\nb. Consequently, without the prior written consent of ADM, which consent must be signed by the Chief Executive or President of ADM\nuntil September 15, 2008, Mulhollem shall not own any interest in, except the\n2\nownership of stock in a publicly-traded company, take any employment with, or act as a director, officer, agent, consultant, advisor,\nindependent contractor or in any other capacity whatsoever, directly or indirectly, with or to any person, corporation, partnership, limited\nliability company, firm, joint venture or any other form of entity, anywhere in the world, that competes with ADM or any of its subsidiaries\nor affiliates or provides the same goods or services as ADM or any of its subsidiaries or affiliates.\nc. Mulhollem acknowledges that, in light of his responsibilities while employed as ADM’s President and COO, the scope of these post-\nemployment restrictions is reasonable and that if he were to come out of retirement, he would have ample job opportunities based upon his\nexperience and education. Mulhollem further acknowledges that a violation of this paragraph 2 would cause irreparable damage to ADM\nand that in the event of a breach or threatened breach, hereof, ADM would be entitled to injunctive relief, without the posting of any bond,\nin addition to such other relief as may be appropriate at law or in equity.\nd. For the period from the Effective Date of this Agreement through September 15, 2008, Mulhollem shall not hire or solicit for\nemployment any employee on the payroll of ADM or any of its subsidiaries or affiliates.\n3. The Non-Disclosure Agreement between ADM and Mulhollem dated January 6, 1992, a copy of which is marked Exhibit A, attached\nhereto and by this reference incorporated herein, shall remain in full force and effect in accordance with its terms.\n4. In consideration of the post-employment restrictions placed on Mulhollem in this Agreement and the continuing application of the Non-\nDisclosure Agreement, ADM shall\n3\nprovide Mulhollem the following valuable consideration to which he would not otherwise have been entitled:\na. ADM shall pay Mulhollem the cash value of the restricted stock granted to him under the terms of the October 14, 2003 Restricted Stock\nAward Agreement as provided for herein. The amount shall be determined by multiplying the number of shares of restricted stock by\n$23.16, the closing price for ADM’s Common Stock on September 15, 2005. Payments shall be made as follows:\ni.25% of the amount on the Effective Date of this Agreement;\nii.25% of the amount on September 15, 2006, provided Mulhollem has fully complied with paragraphs 2 and 3 of this Agreement;\niii.25% of the amount on September 15, 2007, provided Mulhollem has fully complied with paragraphs 2 and 3 of this Agreement; and\niv.25% of the amount on September 15, 2008, provided Mulhollem has fully complied with paragraphs 2 and 3 of this Agreement.\nb. ADM shall retain Mulhollem as a consultant for a three-year period from September 15, 2005 expiring September 15, 2008. Mulhollem\nshall perform such reasonable duties as he may be requested to perform by ADM’s Chief Executive. ADM shall compensate Mulhollem by\npaying him $550,000 per year (payable monthly in arrears) for his consulting services provided Mulhollem has fully complied with\nparagraphs 2 and 3 of this Agreement.\n4\n5. Release\na. Mulhollem hereby forever releases ADM, and its subsidiaries and affiliates and each of ADM’s and its subsidiaries’ and affilicates’\nofficers, directors, representatives, shareholders, agents, employees, predecessors, successors and assigns (collectively “Releasees”), from\nany and all complaints, charges, claims, liabilities, demands, debts, accounts, obligations, promises, suits, actions, causes of action,\ndemands in law or equity, including claims for damages, attorneys’ fees or costs, whether known or unknown, which Mulhollem now has,\nor claims to have, or which Mulhollem at any time may have had, or claimed to have, or which Mulhollem at any time hereafter may have,\nor claim to have, arising at any time in the past to and including the date of this Agreement, including, but without limiting the generality of\nthe foregoing, any matters relating in any way to Mulhollem’s employment relationship with ADM or his retirement from ADM.\nb. The claims, rights and obligations that Mulhollem is hereby releasing include, but are not limited to:\ni. those for breach of contract, breach of implied contract, breach of implied covenant of good faith and fair dealing, wrongful discharge,\nretaliatory discharge, constructive discharge, and any other common law or statutory claims now or hereafter recognized;\nii. those for discrimination (including but not limited to claims for discrimination, harassment or retaliation on account of gender, age,\nhandicap, medical condition or disability, national origin, race, color, religion, sexual preference, or veteran status) which Mulhollem\nmight\n5\nhave or might have had under the Age Discrimination in Employment Act, Title VII of the 1964 Civil Rights Act, the Civil Rights Act\nof 1866, the Americans with Disabilities Act, the Family and Medical Leave Act, the Rehabilitation Act of 1973, the Illinois\nConstitution, the Illinois Human Rights Act, the Illinois Wage Payment and Calculation Act, the Illinois Minimum Wage Law, and any\nother federal, state or local laws, statutes, orders, regulations or enactments of any type. By signing this Agreement, Mulhollem agrees to\ngive up, or waive, any rights or claims which he may have had under the Age Discrimination in Employment Act of 1967, 29 U.S .C.\n§621 et. seq., the Older Worker Benefit Protection Act, or any other statutes or other laws, which are based on the actions of any of the\nReleasees that occurred up through the date that Mulhollem signs this Agreement; and,\niii. Any and all claims for attorneys’ fees and costs.\nc. Mulhollem further acknowledges and agrees that this Agreement shall operate as a complete bar to recovery in any and all litigation,\ncharges, complaints, grievances or demands of any kind whatsoever now pending or now contemplated by Mulhollem or which might at\nany time be filed by Mulhollem related to his employment with ADM and his retirement from ADM. Each and all of the said claims are\nhereby fully and finally settled, compromised and released.\nd. Nothing in this paragraph 5 is intended to operate as a release, waiver or forfeiture of Mulhollem’s rights, and ADM’s obligations, under\n(i) this Agreement, (ii) any 401(k), ESOP or other retirement plan which Mulhollem\n6\nparticipates in as of the date hereof, and (iii) any indemnification or similar right relating to actual or alleged acts or omissions by\nMulhollem in his office capacity as an officer of ADM prior to the date hereof.\n6. In consideration for the Release in paragraph 5, and Mulhollem’s other covenants herein, ADM shall:\na. pay Mulhollem, on the Effective Date of this Agreement, an amount equal to the aggregate difference between the option price and\n$23.16, the closing share price of ADM common stock on September 15, 2005 for all of Mulhollem’s unvested stock options as of the date\nhereof.;\nb. transfer to Mulhollem unencumbered title to Mulhollem’s company car on or before December 31, 2005; and\nc. provide Mulhollem with coverage under ADM’s retiree medical plan.\n7. Upon ADM’s request, Mulhollem shall provide his reasonable cooperation relative to any matter which arises within Mulhollem’s former\narea(s) of responsibility with ADM which is based upon facts occurring or circumstances existing prior to the date hereof. ADM shall reimburse\nMulhollem for any out-of-pocket expenses reasonably incurred by Mulhollem providing any such requested cooperation upon presentation of\nappropriate supporting documentation.\n8. Mulhollem expressly acknowledges that:\na. He was provided with a copy of this Agreement and was advised in writing to consult with an attorney concerning its meaning and\neffect.\nb. He was provided twenty-one (21) days to consider whether to enter into this Agreement. Subsequently, Mulhollem retained the law firm\nof Meyer Capel to advise him with respect to this Agreement.\n7\nc. He understands he may revoke this Agreement in writing addressed and delivered to ADM, c/o the General Counsel’s office, within\nseven (7) days after the execution of this Agreement in which event this Agreement will be of no force and effect and he will be entitled to\nno payments or benefits that were to be paid pursuant to this Agreement. Unless revoked in accordance with this section 8(c), this\nAgreement shall be effective on the 8th day following the date of delivery of an executed copy of this Agreement to ADM (the “Effective\nDate”).\nd. He was given an adequate opportunity to consider this Agreement and he has read and understands the meaning and effect of this\nAgreement.\ne. He voluntarily agreed to the terms of the Agreement, which terms were determined through negotiation, and he intends to be legally\nbound by the same.\nf. The consideration provided herein is sufficient and is consideration to which he is not otherwise entitled to receive.\n9. Mulhollem agrees that the terms and conditions of this Agreement and the payments made pursuant hereto shall remain confidential and\nthat he will not disclose the same to any person, except his immediate family, his legal and financial advisors, or as required by law. Mulhollem\nacknowledges that ADM may be required to publicly disclose this Agreement and its terms in filings with the United States Securities and\nExchange Commission.\n10. In the event of a breach by Mulhollem of the provisions of paragraphs 2 or 3 of this agreement, ADM shall be released from the\nobligations to make any further payments\n8\npursuant to paragraph 4 in addition to pursuing any other available remedy in law or equity, including without limitation specific performance\nand injunctive relief.\n11. Mulhollem shall not request or apply for employment with ADM or any of its subsidiaries.\n12. This Agreement shall be governed by the laws of the State of Illinois.\n13. Mulhollem agrees that he will not take any action, or make any statement, whether orally or in writing, which manifestly and\ndemonstrably disparages or impugns the reputation or goodwill of ADM, its subsidiaries, affiliates or any of their officers, directors or\nemployees. Mulhollem will not interfere with the relationships between ADM, its subsidiaries or affiliates and any of their customers, suppliers,\nvendors, distributors or representatives. Moreover, Mulhollem further agrees that he shall make no public statements, or request, cause or solicit\nany third-party to make any public statements, including without limitation to the media, regarding the circumstances of his retirement.\n14. The parties agree that the provisions in paragraphs 2, 3 and 5 are a critical and non-severable part of this Agreement. By executing this\nAgreement, the parties state that they have read the aforementioned paragraphs and after consulting counsel of their choice agree that they are\nreasonable and protect the parties’ interests. As such, the parties specifically agree that if Mulhollem seeks to invalidate or limit the scope of any\nof these provisions for any reason, this Agreement shall have no force or effect. If Mulhollem brings any action seeking to invalidate or limit the\nscope of paragraphs 2 or 3, Mulhollem shall return to ADM all considerations paid to him pursuant to paragraph 4 of this Agreement and\nMulhollem shall have no entitlement to any future payments or benefits provided pursuant to paragraph 4 of this Agreement.\n9\n15. Mulhollem shall not be in breach of this Agreement or any obligation unless and until written notice of such breach is given to Mulhollem\nand Mulhollem is afforded a reasonable opportunity to cure such breach. Such notice shall be delivered via registered mail, return receipt\nrequested, and shall describe in detail (i) the acts or omissions which ADM believes constitute such breach, and (ii) the steps, acts or omissions\nwhich must be taken by Mulhollem to correct and cure any such breach. ADM shall not be allowed to terminate this Agreement or cease\nperformance hereunder if Mulhollem is able to cure any breach within thirty (30) days following delivery of a notice of breach.\n16. This Agreement constitutes the entire agreement of the parties and supersedes any and all prior agreements and understandings between\nMulhollem and ADM, whether oral or in writing. This Agreement may not be revoked, amended, modified or revised except by a writing\nexecuted by Mulhollem and the Chief Executive or President of ADM.\n17. In the event of litigation in connection with the interpretation or enforcement of this Agreement, the prevailing party in such action shall\nbe entitled to reimbursement from the other party, in addition to any other relief awarded, all costs and fees paid or incurred by the prevailing\nparty in such action, including, without limitation, reasonable attorneys’ fees and costs.\n18. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns.\n(signature page follows)\n10\nIN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written.\n/s/ Paul B. Mulhollem\nPAUL B. MULHOLLEM\nDated: September 29, 2005\n/s/ Stuart E. Funderburg\nWITNESS\nARCHER-DANIELS-MIDLAND COMPANY\nBy: /s/ Douglas J. Schmalz\nDouglas J. Schmalz\nIts: Senior Vice President and Chief Financial\nOfficer\nDated: September 29, 2005\n11
+b6e2939084cbdb9da155803777f9ad78.pdf	effective_date jurisdiction party term	EX-10.19 25 dex1019.htm FORM OF EMPLOYEE NON-DISCLOSURE AGREEMENT\nExhibit 10.19\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (hereinafter the “Agreement”) is made and entered into on May 4, 2005 by and between the Affiliated\nCompanies, which included but are not limited to, Silver Valley Capital, Sterling Mining Company, Kimberly Gold Mines, Inc. Shoshone Silver\nMining Company (hereinafter the “Company”), and Michael L. Mooney (hereinafter “Employee”).\nFOR GOOD CONSIDERATION, and in consideration of Employee’s employment or continued employment with the Company, Employee\nhereby agrees and acknowledges:\n1. That during the course of my employment with the Company, there may be disclosed to me certain trade secrets, confidential and/or\nproprietary business information of or regarding the Company; consisting of but not necessarily limited to:\na. Technical information: Assays and assay results, resource estimates and/or projections. methods, processes, formulae, compositions.\nsystems, techniques, inventions, machines, computer programs, research projects and experimental or developmental work, relating to any project or\norganization.\nb. Business information: Business and development plans, investor and customer lists, pricing data, sources of supply, financial data,\nmarketing, production, and merchandising systems or plans and operation plans, investor transactions, stock and/or warrant ownership.\n2. As used in this Agreement, the term “Confidential Information” means all Technical and/or Business information described in paragraphs\n1(a) and (b) above, and any other trade secrets and/or confidential and/or proprietary business information of or regarding the Company (including\ninformation created or developed, in whole or in part, by Employee), which is not generally known about the Company or about its business.\nConfidential Information includes not only the information itself, but also all documents containing such information, and any and all such\ninformation maintained in electronic or other form. For purposes of this Agreement, Confidential Information shall not include any information\nwhich Employee can establish was (i) was publicly known or (ii) becomes publicly known and made generally available after disclosure to\nEmployee by the Company, through means other than Employee’s breach of his/her obligations under this Agreement.\n3. Employee agrees that, except in promoting the Company’s business, and as necessary in performing the duties of his/her employment with\nthe Company, Employee shall not use in any manner, directly or indirectly, any Confidential Information. Employee agrees that he/she will never use\nany Confidential Information for his/her own benefit or for the benefit of any person or entity other than the Company, and will not permit or allow\nany Confidential Information to be used in competition with the Company. Employee acknowledges and agrees that all Confidential Information is\nthe exclusive property of the Company, and Employee has no independent or individual claim to such Confidential Information for any purpose.\nDuring his/her employment with the Company and at all times thereafter, Employee shall take all reasonable steps to prevent any unauthorized\ndisclosure or use of any and all Confidential Information. Employee further agrees to notify the Company immediately in the event that he/she\nbecomes aware of any unauthorized use or disclosure of Confidential Information.\n4. Employee understands and agrees that he/she is being employed for an indefinite term, and is an “employee at will” whose employment\nwith the Company can be terminated by either Employee or the Company at any time. for any reason, or for no reason at all, with or without advance\nnotice.\n5. All questions with regard to the interpretation and enforcement of any provision of this Agreement shall be determined in accordance with\nthe laws of the State of Idaho.\n6. I agree that upon the termination of my employment from Company:\na. I shall return to Company all documents and property of Company, even if not marked “confidential” or “proprietary,” including but\nnot necessarily limited to: drawings, blueprints, reports, manuals, correspondence, customer and/or investor lists, computer programs, and all other\nmaterials and all copies thereof relating in any way to Company’s business, or in any way obtained by me during the course of employment. I further\nagree that I shall not retain copies. notes or abstracts of the foregoing.\nb. The Company may notify any future or prospective employer or third party of the existence of this Agreement. The Company shall be\nentitled to injunctive relief for any or threatened breach of this Agreement, in addition to all other available remedies, including the recovery of\nmonetary damages.\nc. This Agreement shall be binding upon me and my personal representatives and successors-in-interest, and shall inure to the benefit of\nCompany, its successors and assigns.\nAuthorized Company Signature\nEmployee Signature\nPrinted Name\nPrinted Name\nDate\nDate\n2	EX-10.19 25 dex1019.htm FORM OF EMPLOYEE NON-DISCLOSURE AGREEMENT\nExhibit 10.19\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (hereinafter the “Agreement”) is made and entered into on May 4, 2005 by and between the Affiliated\nCompanies, which included but are not limited to, Silver Valley Capital, Sterling Mining Company, Kimberly Gold Mines, Inc. Shoshone Silver\nMining Company (hereinafter the “Company”), and Michael L. Mooney (hereinafter “Employee”).\nFOR GOOD CONSIDERATION, and in consideration of Employee’s employment or continued employment with the Company, Employee\nhereby agrees and acknowledges:\n1. That during the course of my employment with the Company, there may be disclosed to me certain trade secrets, confidential and/or\nproprietary business information of or regarding the Company; consisting of but not necessarily limited to:\na. Technical information: Assays and assay results, resource estimates and/or projections. methods, processes, formulae, compositions.\nsystems, techniques, inventions, machines, computer programs, research projects and experimental or developmental work, relating to any project or\norganization.\nb. Business information: Business and development plans, investor and customer lists, pricing data, sources of supply, financial data,\nmarketing, production, and merchandising systems or plans and operation plans, investor transactions, stock and/or warrant ownership.\n2. As used in this Agreement, the term “Confidential Information” means all Technical and/or Business information described in paragraphs\n1(a) and (b) above, and any other trade secrets and/or confidential and/or proprietary business information of or regarding the Company (including\ninformation created or developed, in whole or in part, by Employee), which is not generally known about the Company or about its business.\nConfidential Information includes not only the information itself, but also all documents containing such information, and any and all such\ninformation maintained in electronic or other form. For purposes of this Agreement, Confidential Information shall not include any information\nwhich Employee can establish was (i) was publicly known or (ii) becomes publicly known and made generally available after disclosure to\nEmployee by the Company, through means other than Employee’s breach of his/her obligations under this Agreement.\n3. Employee agrees that, except in promoting the Company’s business, and as necessary in performing the duties of his/her employment with\nthe Company, Employee shall not use in any manner, directly or indirectly, any Confidential Information. Employee agrees that he/she will never use\nany Confidential Information for his/her own benefit or for the benefit of any person or entity other than the Company, and will not permit or allow\nany Confidential Information to be used in competition with the Company. Employee acknowledges and agrees that all Confidential Information is\nthe exclusive property of the Company, and Employee has no independent or individual claim to such Confidential Information for any purpose.\nDuring his/her employment with the Company and at all times thereafter, Employee shall take all reasonable steps to prevent any unauthorized\ndisclosure or use of any and all Confidential Information. Employee further agrees to notify the Company immediately in the event that he/she\nbecomes aware of any unauthorized use or disclosure of Confidential Information.\n4. Employee understands and agrees that he/she is being employed for an indefinite term, and is an “employee at will” whose employment\nwith the Company can be terminated by either Employee or the Company at any time. for any reason, or for no reason at all, with or without advance\nnotice.\n5. All questions with regard to the interpretation and enforcement of any provision of this Agreement shall be determined in accordance with\nthe laws of the State of Idaho.\n6. I agree that upon the termination of my employment from Company:\na. I shall return to Company all documents and property of Company, even if not marked “confidential” or “proprietary,” including but\nnot necessarily limited to: drawings, blueprints, reports, manuals, correspondence, customer and/or investor lists, computer programs, and all other\nmaterials and all copies thereof relating in any way to Company’s business, or in any way obtained by me during the course of employment. I further\nagree that I shall not retain copies. notes or abstracts of the foregoing.\nb. The Company may notify any future or prospective employer or third party of the existence of this Agreement. The Company shall be\nentitled to injunctive relief for any or threatened breach of this Agreement, in addition to all other available remedies, including the recovery of\nmonetary damages.\nc. This Agreement shall be binding upon me and my personal representatives and successors-in-interest, and shall inure to the benefit of\nCompany, its successors and assigns.\nAuthorized Company Signature Employee Signature\nPrinted Name Printed Name\nDate Date	EX-10.19 25 dex 1019.htm FORM OF EMPLOYEE NON-DISCLOSURE AGREEMENT\nExhibit 10.19\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (hereinafter the "Agreement") is made and entered into on May 4, 2005 by and between the Affiliated\nCompanies, which included but are not limited to, Silver Valley Capital, Sterling Mining Company, Kimberly Gold Mines, Inc. Shoshone Silver\nMining Company (hereinafter the "Company"), and Michael L. Mooney (hereinafter "Employee").\nFOR GOOD CONSIDERATION, and in consideration of Employee's employment or continued employment with the Company, Employee\nhereby agrees and acknowledges:\n1. That during the course of my employment with the Company, there may be disclosed to me certain trade secrets, confidentia and/or\nproprietary business information of or regarding the Company; consisting of but not necessarily limited to:\na. Technical information: Assays and assay results, resource estimates and/or projections. methods, processes, formulae, compositions.\nsystems, techniques, inventions, machines, computer programs, research projects and experimental or developmental work, relating to any project or\norganization.\nb. Business information: Business and development plans, investor and customer lists, pricing data, sources of supply, financial data,\nmarketing, production, and merchandising systems or plans and operation plans, investor transactions, stock and/or warrant ownership.\n2. As used in this Agreement, the term "Confidential Information" means all Technical and/or Business information described in paragraphs\n1(a) and (b) above, and any other trade secrets and/or confidential and/or proprietary business information of or regarding the Company (including\ninformation created or developed, in whole or in part, by Employee), which is not generally known about the Company or about its business.\nConfidential Information includes not only the information itself, but also all documents containing such information, and any and all such\ninformation maintained in electronic or other form. For purposes of this Agreement, Confidential Information shall not include any information\nwhich Employee can establish was (i) was publicly known or (ii) becomes publicly known and made generally available after disclosure to\nEmployee by the Company, through means other than Employee's breach of his/her obligations under this Agreement.\n3. Employee agrees that, except in promoting the Company's business, and as necessary in performing the duties of his/her employment with\nthe Company, Employee shall not use in any manner, directly or indirectly, any Confidential Information. Employee agrees that he/she will never use\nany Confidential Information for his/her own benefit or for the benefit of any person or entity other than the Company, and will not permit or allow\nany Confidential Information to be used in competition with the Company. Employee acknowledges and agrees that all Confidential Information is\nthe exclusive property of the Company, and Employee has no independent or individual claim to such Confidential Information for any purpose.\nDuring his/her employment with the Company and at all times thereafter, Employee shall take all reasonable steps to prevent any unauthorized\ndisclosure or use of any and all Confidential Information. Employee further agrees to notify the Company immediately in the event that he/she\nbecomes aware of any unauthorized use or disclosure of Confidential Information.\n4. Employee understands and agrees that he/she is being employed for an indefinite term, and is an "employee at will" whose employment\nwith the Company can be terminated by either Employee or the Company at any time. for any reason, or for no reason at all, with or without advance\nnotice.\n5. All questions with regard to the interpretation and enforcement of any provision of this Agreement shall be determined in accordance with\nthe laws of the State of Idaho.\n6. I agree that upon the termination of my employment from Company:\na. I shall return to Company all documents and property of Company, even if not marked "confidential" or "proprietary," including but\nnot necessarily limited to: drawings, blueprints, reports, manuals, correspondence, customer and/or investor lists, computer programs, and all other\nmaterials and all copies thereof relating in any way to Company's business, or in any way obtained by me during the course of employment. I further\nagree that I shall not retain copies notes or abstracts of the foregoing.\nb. The Company may notify any future or prospective employer or third party of the existence of this Agreement. The Company shall be\nentitled to injunctive relief for any or threatened breach of this Agreement, in addition to all other available remedies, including the recovery of\nmonetary damages.\nC. This Agreement shall be binding upon me and my personal representatives and successors-in-interest and shall inure to the benefit of\nCompany, its successors and assigns\nAuthorized Company Signature\nEmployee Signature\nPrinted Name\nPrinted Name\nDate\nDate\n2	EX-10.19 25 dex1019.htm FORM OF EMPLOYEE NON-DISCLOSURE AGREEMENT\nExhibit 10.19\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (hereinafter the “Agreement”) is made and entered into on May 4, 2005 by and between the Affiliated\nCompanies, which included but are not limited to, Silver Valley Capital, Sterling Mining Company, Kimberly Gold Mines, Inc. Shoshone Silver\nMining Company (hereinafter the “Company”), and Michael L. Mooney (hereinafter “Employee”).\nFOR GOOD CONSIDERATION, and in consideration of Employee’s employment or continued employment with the Company, Employee\nhereby agrees and acknowledges:\n1. That during the course of my employment with the Company, there may be disclosed to me certain trade secrets, confidential and/or\nproprietary business information of or regarding the Company; consisting of but not necessarily limited to:\na. Technical information: Assays and assay results, resource estimates and/or projections. methods, processes, formulae, compositions.\nsystems, techniques, inventions, machines, computer programs, research projects and experimental or developmental work, relating to any project or\norganization.\nb. Business information: Business and development plans, investor and customer lists, pricing data, sources of supply, financial data,\nmarketing, production, and merchandising systems or plans and operation plans, investor transactions, stock and/or warrant ownership.\n2. As used in this Agreement, the term “Confidential Information” means all Technical and/or Business information described in paragraphs\n1(a) and (b) above, and any other trade secrets and/or confidential and/or proprietary business information of or regarding the Company (including\ninformation created or developed, in whole or in part, by Employee), which is not generally known about the Company or about its business.\nConfidential Information includes not only the information itself, but also all documents containing such information, and any and all such\ninformation maintained in electronic or other form. For purposes of this Agreement, Confidential Information shall not include any information\nwhich Employee can establish was (i) was publicly known or (ii) becomes publicly known and made generally available after disclosure to\nEmployee by the Company, through means other than Employee’s breach of his/her obligations under this Agreement.\n3. Employee agrees that, except in promoting the Company’s business, and as necessary in performing the duties of his/her employment with\nthe Company, Employee shall not use in any manner, directly or indirectly, any Confidential Information. Employee agrees that he/she will never use\nany Confidential Information for his/her own benefit or for the benefit of any person or entity other than the Company, and will not permit or allow\nany Confidential Information to be used in competition with the Company. Employee acknowledges and agrees that all Confidential Information is\nthe exclusive property of the Company, and Employee has no independent or individual claim to such Confidential Information for any purpose.\nDuring his/her employment with the Company and at all times thereafter, Employee shall take all reasonable steps to prevent any unauthorized\ndisclosure or use of any and all Confidential Information. Employee further agrees to notify the Company immediately in the event that he/she\nbecomes aware of any unauthorized use or disclosure of Confidential Information.\n4. Employee understands and agrees that he/she is being employed for an indefinite term, and is an “employee at will” whose employment\nwith the Company can be terminated by either Employee or the Company at any time. for any reason, or for no reason at all, with or without advance\nnotice.\n5. All questions with regard to the interpretation and enforcement of any provision of this Agreement shall be determined in accordance with\nthe laws of the State of Idaho.\n6. I agree that upon the termination of my employment from Company:\na. I shall return to Company all documents and property of Company, even if not marked “confidential” or “proprietary,” including but\nnot necessarily limited to: drawings, blueprints, reports, manuals, correspondence, customer and/or investor lists, computer programs, and all other\nmaterials and all copies thereof relating in any way to Company’s business, or in any way obtained by me during the course of employment. I further\nagree that I shall not retain copies. notes or abstracts of the foregoing.\nb. The Company may notify any future or prospective employer or third party of the existence of this Agreement. The Company shall be\nentitled to injunctive relief for any or threatened breach of this Agreement, in addition to all other available remedies, including the recovery of\nmonetary damages.\nc. This Agreement shall be binding upon me and my personal representatives and successors-in-interest, and shall inure to the benefit of\nCompany, its successors and assigns.\nAuthorized Company Signature\nEmployee Signature\nPrinted Name\nPrinted Name\nDate\nDate\n2
+ba91f088d45bf7314d395f06632193b0.pdf	effective_date jurisdiction party term	EX-99.(D)(10) 9 dex99d10.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(10)\nCONFIDENTIALITY AGREEMENT\nIn connection with the consideration of a possible negotiated transaction between each of the parties that have signed this agreement or its\nrespective subsidiaries, affiliates or divisions (each such party being hereinafter referred to, collectively with such subsidiaries, affiliates and\ndivisions, as a “Company”), each Company (in its capacity as a provider of information hereunder being referred to as a “Provider”) is prepared to\nmake available to the other Company (in its capacity as a recipient of information hereunder being referred to as a “Recipient”) certain information\nconcerning the business, financial condition, operations, assets and liabilities of the Provider. As a condition to such information being provided to\neach Recipient and its Recipient Representatives (as hereinafter defined), each Recipient agrees to treat any information concerning the Provider\n(whether prepared by the Provider, such Recipient’s Representatives or otherwise and irrespective of the form of communication) which is furnished\nto the Recipient and such Recipient’s Representatives now or in the future by or on behalf of the Provider (herein collectively referred to, with\nrespect to information furnished by or on behalf of either Company in its capacity as a Provider to the other Company in its capacity as a Recipient,\nas the “Evaluation Material”) in accordance with the provisions of this agreement, and to take or abstain from taking certain other actions as\nhereinafter set forth. As used in this letter, a Recipient’s “Representatives” shall include the directors, officers, employees, agents, partners or\nadvisors of such Recipient (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) and those of such\nRecipient’s parent company, subsidiaries and affiliates. Notwithstanding any other provision hereof, each Company reserves the right not to make\navailable hereunder any information, the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.\nThe term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents\nprepared by either Recipient or such Recipient’s Representatives which contain, reflect or are based upon, in whole or in part, the information\nfurnished to such Recipient or such Recipient’s Representatives pursuant hereto. The term Evaluation Material does not include information which\n(1) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or such Recipient’s Representatives, (ii) was\nwithin the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider pursuant hereto, provided that the\nsource of such information was not known by the Recipient to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Provider or any other party with respect to such information or (iii) becomes available to the Recipient on a non-\nconfidential basis from a source other than the Provider or any of its directors, officers, employees, agents or advisors (including, without limitation,\nattorneys, accountants, consultants, bankers and financial advisors) (collectively, “Provider Representatives”), provided that such source is not bound\nby a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider or any other party with\nrespect to such information. Notwithstanding any other provision hereof, each Provider reserves the right not to make available hereunder any\ninformation, the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.\nEach Recipient hereby agrees that such Recipient and such Recipient’s Representatives shall use the Evaluation Material solely for the purpose\nof evaluating a possible negotiated transaction between the Companies and for no other purpose, that the Evaluation Material will be kept\nconfidential and that the Recipient and such Recipient’s Representatives will not disclose any of the Evaluation Material in any manner whatsoever;\nprovided, however, that (i) the Recipient may make any disclosure of such information to which the Provider gives its prior written consent and\n(ii) any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of\nevaluating a possible negotiated transaction between the Companies, who are provided with a copy of this agreement and who agree to be bound by\nthe terms hereof to the same extent as if they were such Recipient. In any event, each Recipient agrees to undertake reasonable precautions to\nsafeguard and protect the confidentiality of the Evaluation Material, to accept responsibility for any breach of this agreement by any of such\nRecipient’s Representatives, and at such Recipient’s sole expense to take all reasonable measures (including but not limited to court proceedings) to\nrestrain such Recipient’s Representatives from prohibited or unauthorized disclosure or uses of the Evaluation Material.\n1\nIn addition, each Recipient agrees that, without the prior written consent of the Provider, such Recipient and such Recipient’s Representatives\nwill not disclose to any other person the fact that the Evaluation Material has been made available to such Recipient, that discussions or negotiations\nare taking place concerning a possible transaction between the Companies or any of the terms, conditions or other facts with respect thereto\n(including the status thereof) provided, however, that such Recipient may make such disclosure if the Provider has already done so or it has received\nthe written opinion of its outside counsel that such disclosure must be made by it in order that it not commit a violation of law. Without limiting the\ngenerality of the foregoing, each Recipient further agrees that, without the prior written consent of the Provider, it will not, directly or indirectly,\nenter into any agreement, arrangement or understanding, or any discussions which might lead to such agreement, arrangement or understanding, with\nany person regarding a possible transaction between the Companies. The term person as used in this agreement shall be broadly interpreted to\ninclude the media and any corporation, partnership, group, individual or other entity.\nIn the event that either Recipient or any of such Recipient’s Representatives are requested or required (by oral questions, interrogatories,\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the\nEvaluation Material, such Recipient shall provide the Provider with prompt written notice of any such request or requirement so that the Provider\nmay seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this agreement. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by the Provider, the Recipient or any of such Recipient’s Representatives are nonetheless,\nin the opinion of counsel, legally compelled to disclose Evaluation Material such Recipient or such Recipient’s Representatives may, without\nliability hereunder, disclose only that portion of the Evaluation Material which such counsel advises the Recipient is legally required to be disclosed\nIf either Company decides that it does not wish to proceed with a transaction with the other, it will promptly inform the other of that decision.\nIn that case, or at any time upon the request of either Company for any reason, the other Company will promptly [deliver to the notifying or\nrequesting Company all Evaluation Material (and all copies thereof) furnished to the notified or requested Company in its capacity as a Recipient or\nsuch Recipient’s Representatives by or on behalf of the notifying or requesting Company in its capacity as a Provider pursuant hereto. In the event of\nsuch a decision or request, all [other] Evaluation Material prepared by the notified or requested Company in its capacity as a Recipient or such\nRecipient’s Representatives shall, at the Recipient’s option, be destroyed or returned and no copy thereof shall be retained [except for one archival\ncopy which may be retained by such recipient’s outside counsel or in-house general counsel] and the Recipient shall provide to the notifying or\nrequesting Company a certificate of compliance with this sentence. Notwithstanding the return or destruction of the Evaluation Material, the notified\nor requested Company in its capacity as a Recipient and such Recipient’s Representatives will continue to be bound by such Recipient’s respective\nobligations of confidentiality and other obligations hereunder.\nEach Company understands and acknowledges that neither Company, in its capacity as a Provider, nor such Provider’s Representatives makes\nany representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such\nProvider and shall have no liability to the other.\nIn consideration of the Evaluation Material being furnished to a Recipient, the Recipient hereby agrees that, for a period of two years, neither it\nnor any of its affiliates will solicit to employ any of the officers or employees of the Provider with whom it has had contact or who was specifically\nidentified to it by the Provider or any of such Provider’s Representatives for purposes hereof during the period of the Recipient’s investigation of the\nProvider, so long as they are employed by the Provider, without obtaining the prior written consent of the Provider. Such two-year period shall be\nmeasured from, and expire two years following, the later of (i) the date of this agreement, (ii) the date of last contact by the Recipient or any of such\nRecipient’s Representatives with the applicable officer or employee or (iii) the date on which the applicable officer or employee was identified to the\nRecipient or any of such Recipient’s Representatives by the Provider or any of its Representatives for purposes hereof. This restriction shall not\napply to employees of Provider who respond to a general solicitation for employment published or posted by Recipient.\n2\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that\nthe Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of both\nCompanies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by\neither Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain\nentitled to such protection under these privileges, this agreement, and under the joint defense doctrine.\nEach Company, in its capacity as a Recipient, acknowledges and agrees that such Recipient is aware (and that such Recipient’s Representatives\nare aware or, upon receipt of any Evaluation Material, will be advised by such Recipient) of the restrictions imposed by the United States federal\nsecurities laws and other applicable foreign and domestic laws on a person possessing material non-public information about a public company and\nthat such Recipient and such Recipient’s Representatives will comply with such laws.\nEach Company agrees that, for a period of three years from the date of this agreement, unless such shall have been specifically invited in\nwriting by the other Company, neither the agreeing Company nor any of its affiliates (as such term is defined under the Securities Exchange Act of\n1934, as amended (the “1934 Act”)) or persons who are Recipient Representatives or Provider Representatives with respect to the agreeing\nCompany will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or\nparticipate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in,\n(1) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or\nexchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring,\nliquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any “solicitation” of\n“proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the\nother Company; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of the other\nCompany; (c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the\nother Company; (d) take any action which might force the other Company to make a public announcement regarding any of the types of matters set\nforth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nEach Company understands and agrees that no contract or agreement providing for any transaction between the Companies shall be deemed to\nexist between the Companies unless and until a final definitive agreement has been executed and delivered, and each Company hereby waives, in\nadvance, any claims (including, without limitation, breach of contract but excluding any claims arising from a breach of this Confidentiality\nAgreement) in connection with any transaction involving the other Company unless and until both Companies shall have entered into a final\ndefinitive agreement. Each Company also agrees that unless and until a final definitive agreement regarding a transaction between the Companies\nhas been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such a transaction by\nvirtue of this agreement except for the matters specifically agreed to herein. Each Company further acknowledges and agrees that the other Company\nreserves the right, in its sole discretion, to reject any and all proposals made by the agreeing Company or any of the persons who are Recipient\nRepresentatives or Provider Representatives with respect to the Company with regard to a transaction between the Companies, and to terminate\ndiscussions and negotiations with the agreeing Company at any time. Each Company further agrees that (i) the other Company and the persons who\nare Recipient Representatives or Provider Representatives with respect to the other Company shall be free to conduct any process for any transaction\ninvolving the other Company, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other\ninterested parties and entering into a definitive agreement therewith without prior notice to the agreeing Company or any other person), (ii) any\nprocedures relating to such process or transaction may be changed at any time without notice to the agreeing Company or any other person and\n(iii) the agreeing Company shall not have any claims whatsoever against the other Company, the persons who are Recipient Representatives or\nProvider Representatives with respect to the other Company or any of their respective directors, officers, stockholders, owners, affiliates or agents\narising out of or relating to any transaction involving the other Company (other than those as against the parties to a definitive agreement between\nthe Companies, including this\n3\nConfidentiality Agreement in accordance with the term thereof) nor, unless a definitive agreement is entered into with the agreeing Company, against\nany third party with whom a transaction is entered into. Neither this paragraph nor any other provision in this agreement can be waived or amended\nin favor of either Company except by written consent of the other Company, which consent shall specifically refer to this paragraph (or such\nprovision) and explicitly make such waiver or amendment.\nIt is understood and agreed that no failure or delay by either Company in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor privilege hereunder.\nIt is further understood and agreed that money damages would not be a sufficient remedy for any breach of this agreement by either Company\nor any of its Representatives and that the Company against which such breach is committed shall be entitled to seek equitable relief, including\ninjunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach\nby either Company of this agreement but shall be in addition to all other remedies available at law or equity to the Company against which such\nbreach is committed. In the event of litigation relating to this agreement, if a court of competent jurisdiction determines that either Company or any\nof the persons who are Recipient Representatives or Provider Representatives with respect to such Company has breached this agreement, then the\nCompany Recipient Representatives or Provider Representatives of which, is determined to have so breached shall be liable and pay to the other\nCompany the reasonable legal fees incurred by the other Company in connection with such litigation, including any appeal therefrom.\nThis agreement is for the benefit of the each Company, the persons who are Recipient Representatives or Provider Representatives with respect\nto such Company and their respective, directors, officers, stockholders, owners, affiliates, and agents, and shall be governed by and construed in\naccordance with the laws of the State of Washington (the “Subject State”) applicable to agreements made and to be performed entirely within such\nState. Each Company also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the Subject State\nlocated within the County of King and of the United States of America located in the Western District of the Subject State for any actions, suits or\nproceedings arising out of or relating to this agreement (and each Company agrees not to commence any action, suit or proceeding relating thereto\nexcept in such courts, and further agrees that service of any process, summons, notice or document by U.S . registered mail to such Company’s\naddress set forth below shall be effective service of process for any action, suit or proceeding brought against such Company in any such court).\nEach Company hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of\nthis agreement , in the courts of the Subject State or the United States of America located in the Subject State, and hereby further irrevocably and\nunconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been\nbrought in an inconvenient forum.\nThis agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements,\nunderstandings, arrangements and discussions between the Companies regarding such subject matter.\nThis agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a\nsingle instrument.\nIN WITNESS WHEREOF, each Company has caused this agreement to be signed by its duly authorized representatives as of the date written\nbelow.\nDate: 8/14/2007\nPhotoWorks, Inc:\nAmerican Greetings Corporation:\nSuite 200, 71 Columbia Street\nSeattle, WA 98104\nADDRESS FOR NOTICE:\nOne American Road\nBrooklyn, Ohio 44144\nAttn: General Counsel\nBy: /s/ Andrew Wood\nBy: /s/ Catherine M. Kilbane\nName: Andrew Wood\nName: Catherine M. Kilbane\nTitle: Chief Executive Officer\nTitle: Senior Vice President,\nGeneral Counsel and Secretary\n4	EX-99.(D)(10) 9 dex99d10.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(10)\nCONFIDENTIALITY AGREEMENT\nIn connection with the consideration of a possible negotiated transaction between each of the parties that have signed this agreement or its\nrespective subsidiaries, affiliates or divisions (each such party being hereinafter referred to, collectively with such subsidiaries, affiliates and\ndivisions, as a “Company”), each Company (in its capacity as a provider of information hereunder being referred to as a “Provider”) is prepared to\nmake available to the other Company (in its capacity as a recipient of information hereunder being referred to as a “Recipient”) certain information\nconcerning the business, financial condition, operations, assets and liabilities of the Provider. As a condition to such information being provided to\neach Recipient and its Recipient Representatives (as hereinafter defined), each Recipient agrees to treat any information concerning the Provider\n(whether prepared by the Provider, such Recipient’s Representatives or otherwise and irrespective of the form of communication) which is furnished\nto the Recipient and such Recipient’s Representatives now or in the future by or on behalf of the Provider (herein collectively referred to, with\nrespect to information furnished by or on behalf of either Company in its capacity as a Provider to the other Company in its capacity as a Recipient,\nas the “Evaluation Material”) in accordance with the provisions of this agreement, and to take or abstain from taking certain other actions as\nhereinafter set forth. As used in this letter, a Recipient’s “Representatives” shall include the directors, officers, employees, agents, partners or\nadvisors of such Recipient (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) and those of such\nRecipient’s parent company, subsidiaries and affiliates. Notwithstanding any other provision hereof, each Company reserves the right not to make\navailable hereunder any information, the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.\nThe term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents\nprepared by either Recipient or such Recipient’s Representatives which contain, reflect or are based upon, in whole or in part, the information\nfurnished to such Recipient or such Recipient’s Representatives pursuant hereto. The term Evaluation Material does not include information which\n(1) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or such Recipient’s Representatives, (ii) was\nwithin the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider pursuant hereto, provided that the\nsource of such information was not known by the Recipient to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Provider or any other party with respect to such information or (iii) becomes available to the Recipient on a non-\nconfidential basis from a source other than the Provider or any of its directors, officers, employees, agents or advisors (including, without limitation,\nattorneys, accountants, consultants, bankers and financial advisors) (collectively, “Provider Representatives”), provided that such source is not bound\nby a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider or any other party with\nrespect to such information. Notwithstanding any other provision hereof, each Provider reserves the right not to make available hereunder any\ninformation, the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.\nEach Recipient hereby agrees that such Recipient and such Recipient’s Representatives shall use the Evaluation Material solely for the purpose\nof evaluating a possible negotiated transaction between the Companies and for no other purpose, that the Evaluation Material will be kept\nconfidential and that the Recipient and such Recipient’s Representatives will not disclose any of the Evaluation Material in any manner whatsoever;\nprovided, however, that (i) the Recipient may make any disclosure of such information to which the Provider gives its prior written consent and\n(ii) any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of\nevaluating a possible negotiated transaction between the Companies, who are provided with a copy of this agreement and who agree to be bound by\nthe terms hereof to the same extent as if they were such Recipient. In any event, each Recipient agrees to undertake reasonable precautions to\nsafeguard and protect the confidentiality of the Evaluation Material, to accept responsibility for any breach of this agreement by any of such\nRecipient’s Representatives, and at such Recipient’s sole expense to take all reasonable measures (including but not limited to court proceedings) to\nrestrain such Recipient’s Representatives from prohibited or unauthorized disclosure or uses of the Evaluation Material.\n1\nIn addition, each Recipient agrees that, without the prior written consent of the Provider, such Recipient and such Recipient’s Representatives\nwill not disclose to any other person the fact that the Evaluation Material has been made available to such Recipient, that discussions or negotiations\nare taking place concerning a possible transaction between the Companies or any of the terms, conditions or other facts with respect thereto\n(including the status thereof) provided, however, that such Recipient may make such disclosure if the Provider has already done so or it has received\nthe written opinion of its outside counsel that such disclosure must be made by it in order that it not commit a violation of law. Without limiting the\ngenerality of the foregoing, each Recipient further agrees that, without the prior written consent of the Provider, it will not, directly or indirectly,\nenter into any agreement, arrangement or understanding, or any discussions which might lead to such agreement, arrangement or understanding, with\nany person regarding a possible transaction between the Companies. The term person as used in this agreement shall be broadly interpreted to\ninclude the media and any corporation, partnership, group, individual or other entity.\nIn the event that either Recipient or any of such Recipient’s Representatives are requested or required (by oral questions, interrogatories,\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the\nEvaluation Material, such Recipient shall provide the Provider with prompt written notice of any such request or requirement so that the Provider\nmay seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this agreement. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by the Provider, the Recipient or any of such Recipient’s Representatives are nonetheless,\nin the opinion of counsel, legally compelled to disclose Evaluation Material such Recipient or such Recipient’s Representatives may, without\nliability hereunder, disclose only that portion of the Evaluation Material which such counsel advises the Recipient is legally required to be disclosed\nIf either Company decides that it does not wish to proceed with a transaction with the other, it will promptly inform the other of that decision.\nIn that case, or at any time upon the request of either Company for any reason, the other Company will promptly [deliver to the notifying or\nrequesting Company all Evaluation Material (and all copies thereof) furnished to the notified or requested Company in its capacity as a Recipient or\nsuch Recipient’s Representatives by or on behalf of the notifying or requesting Company in its capacity as a Provider pursuant hereto. In the event of\nsuch a decision or request, all [other] Evaluation Material prepared by the notified or requested Company in its capacity as a Recipient or such\nRecipient’s Representatives shall, at the Recipient’s option, be destroyed or returned and no copy thereof shall be retained [except for one archival\ncopy which may be retained by such recipient’s outside counsel or in-house general counsel] and the Recipient shall provide to the notifying or\nrequesting Company a certificate of compliance with this sentence. Notwithstanding the return or destruction of the Evaluation Material, the notified\nor requested Company in its capacity as a Recipient and such Recipient’s Representatives will continue to be bound by such Recipient’s respective\nobligations of confidentiality and other obligations hereunder.\nEach Company understands and acknowledges that neither Company, in its capacity as a Provider, nor such Provider’s Representatives makes\nany representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such\nProvider and shall have no liability to the other.\nIn consideration of the Evaluation Material being furnished to a Recipient, the Recipient hereby agrees that, for a period of two years, neither it\nnor any of its affiliates will solicit to employ any of the officers or employees of the Provider with whom it has had contact or who was specifically\nidentified to it by the Provider or any of such Provider’s Representatives for purposes hereof during the period of the Recipient’s investigation of the\nProvider, so long as they are employed by the Provider, without obtaining the prior written consent of the Provider. Such two-year period shall be\nmeasured from, and expire two years following, the later of (i) the date of this agreement, (ii) the date of last contact by the Recipient or any of such\nRecipient’s Representatives with the applicable officer or employee or (iii) the date on which the applicable officer or employee was identified to the\nRecipient or any of such Recipient’s Representatives by the Provider or any of its Representatives for purposes hereof. This restriction shall not\napply to employees of Provider who respond to a general solicitation for employment published or posted by Recipient.\n2\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that\nthe Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of both\nCompanies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by\neither Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain\nentitled to such protection under these privileges, this agreement, and under the joint defense doctrine.\nEach Company, in its capacity as a Recipient, acknowledges and agrees that such Recipient is aware (and that such Recipient’s Representatives\nare aware or, upon receipt of any Evaluation Material, will be advised by such Recipient) of the restrictions imposed by the United States federal\nsecurities laws and other applicable foreign and domestic laws on a person possessing material non-public information about a public company and\nthat such Recipient and such Recipient’s Representatives will comply with such laws.\nEach Company agrees that, for a period of three years from the date of this agreement, unless such shall have been specifically invited in\nwriting by the other Company, neither the agreeing Company nor any of its affiliates (as such term is defined under the Securities Exchange Act of\n1934, as amended (the “1934 Act”)) or persons who are Recipient Representatives or Provider Representatives with respect to the agreeing\nCompany will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or\nparticipate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in,\n(1) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or\nexchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring,\nliquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any “solicitation” of\n“proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the\nother Company; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of the other\nCompany; (c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the\nother Company; (d) take any action which might force the other Company to make a public announcement regarding any of the types of matters set\nforth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nEach Company understands and agrees that no contract or agreement providing for any transaction between the Companies shall be deemed to\nexist between the Companies unless and until a final definitive agreement has been executed and delivered, and each Company hereby waives, in\nadvance, any claims (including, without limitation, breach of contract but excluding any claims arising from a breach of this Confidentiality\nAgreement) in connection with any transaction involving the other Company unless and until both Companies shall have entered into a final\ndefinitive agreement. Each Company also agrees that unless and until a final definitive agreement regarding a transaction between the Companies\nhas been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such a transaction by\nvirtue of this agreement except for the matters specifically agreed to herein. Each Company further acknowledges and agrees that the other Company\nreserves the right, in its sole discretion, to reject any and all proposals made by the agreeing Company or any of the persons who are Recipient\nRepresentatives or Provider Representatives with respect to the Company with regard to a transaction between the Companies, and to terminate\ndiscussions and negotiations with the agreeing Company at any time. Each Company further agrees that (i) the other Company and the persons who\nare Recipient Representatives or Provider Representatives with respect to the other Company shall be free to conduct any process for any transaction\ninvolving the other Company, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other\ninterested parties and entering into a definitive agreement therewith without prior notice to the agreeing Company or any other person), (ii) any\nprocedures relating to such process or transaction may be changed at any time without notice to the agreeing Company or any other person and\n(iii) the agreeing Company shall not have any claims whatsoever against the other Company, the persons who are Recipient Representatives or\nProvider Representatives with respect to the other Company or any of their respective directors, officers, stockholders, owners, affiliates or agents\narising out of or relating to any transaction involving the other Company (other than those as against the parties to a definitive agreement between\nthe Companies, including this\nConfidentiality Agreement in accordance with the term thereof) nor, unless a definitive agreement is entered into with the agreeing Company, against\nany third party with whom a transaction is entered into. Neither this paragraph nor any other provision in this agreement can be waived or amended\nin favor of either Company except by written consent of the other Company, which consent shall specifically refer to this paragraph (or such\nprovision) and explicitly make such waiver or amendment.\nIt is understood and agreed that no failure or delay by either Company in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor privilege hereunder.\nIt is further understood and agreed that money damages would not be a sufficient remedy for any breach of this agreement by either Company\nor any of its Representatives and that the Company against which such breach is committed shall be entitled to seek equitable relief, including\ninjunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach\nby either Company of this agreement but shall be in addition to all other remedies available at law or equity to the Company against which such\nbreach is committed. In the event of litigation relating to this agreement, if a court of competent jurisdiction determines that either Company or any\nof the persons who are Recipient Representatives or Provider Representatives with respect to such Company has breached this agreement, then the\nCompany Recipient Representatives or Provider Representatives of which, is determined to have so breached shall be liable and pay to the other\nCompany the reasonable legal fees incurred by the other Company in connection with such litigation, including any appeal therefrom.\nThis agreement is for the benefit of the each Company, the persons who are Recipient Representatives or Provider Representatives with respect\nto such Company and their respective, directors, officers, stockholders, owners, affiliates, and agents, and shall be governed by and construed in\naccordance with the laws of the State of Washington (the “Subject State”) applicable to agreements made and to be performed entirely within such\nState. Each Company also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the Subject State\nlocated within the County of King and of the United States of America located in the Western District of the Subject State for any actions, suits or\nproceedings arising out of or relating to this agreement (and each Company agrees not to commence any action, suit or proceeding relating thereto\nexcept in such courts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to such Company’s\naddress set forth below shall be effective service of process for any action, suit or proceeding brought against such Company in any such court).\nEach Company hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of\nthis agreement , in the courts of the Subject State or the United States of America located in the Subject State, and hereby further irrevocably and\nunconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been\nbrought in an inconvenient forum.\nThis agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements,\nunderstandings, arrangements and discussions between the Companies regarding such subject matter.\nThis agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a\nsingle instrument.\nIN WITNESS WHEREOF, each Company has caused this agreement to be signed by its duly authorized representatives as of the date written\nbelow.\nDate: 8/14/2007\nPhotoWorks, Inc: American Greetings Corporation:\nSuite 200, 71 Columbia Street ADDRESS FOR NOTICE:\nSeattle, WA 98104 One American Road\nBrooklyn, Ohio 44144\nAttn: General Counsel\nBy:  /s/ Andrew Wood By: /s/ Catherine M. Kilbane\nName: Andrew Wood Name: Catherine M. Kilbane\nTitle: Chief Executive Officer Title:  Senior Vice President,\nGeneral Counsel and Secretary	EX-99.(D)(10) 9 dex99d10.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(10)\nCONFIDENTIALITY AGREEMENT\nIn connection with the consideration of a possible negotiated transaction between each of the parties that have signed this agreement or its\nrespective subsidiaries, affiliates or divisions (each such party being hereinafter referred to, collectively with such subsidiaries, affiliates and\ndivisions, as a "Company"), each Company (in its capacity as a provider of information hereunder being referred to as a "Provider") is prepared to\nmake\navailable to the other Company (in its capacity as a recipient of information hereunder being referred to as a "Recipient") certain information\nconcerning the business, financial condition, operations, assets and liabilities of the Provider. As a condition to such information being provided to\neach Recipient and its Recipient Representatives (as hereinafter defined), each Recipient agrees to treat any information concerning the Provider\n(whether prepared by the Provider, such Recipient's Representatives or otherwise and irrespective of the form of communication) which is furnished\nto the Recipient and such Recipient's Representatives now or in the future by or on behalf of the Provider (herein collectively referred to, with\nrespect to information furnished by or on behalf of either Company in its capacity as a Provider to the other Company in its capacity as a Recipient,\nas\nthe "Evaluation Material") in accordance with the provisions of this agreement, and to take or abstain from taking certain other actions as\nhereinafter set forth. As used in this letter, a Recipient's "Representatives" shall include the directors, officers, employees, agents, partners or\nadvisors of such Recipient (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) and those of such\nRecipient's parent company, subsidiaries and affiliates. Notwithstanding any other provision hereof, each Company reserves the right not to make\navailable hereunder any information, the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.\nThe term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents\nprepared by either Recipient or such Recipient's Representatives which contain, reflect or are based upon, in whole or in part, the information\nfurnished to such Recipient or such Recipient's Representatives pursuant hereto. The term Evaluation Material does not include information which\n(1) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or such Recipient's Representatives, (ii) was\nwithin the Recipient's possession prior to its being furnished to the Recipient by or on behalf of the Provider pursuant hereto, provided that the\nsource of such information was not known by the Recipient to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Provider or any other party with respect to such information or (iii) becomes available to the Recipient on a non-\nconfidential basis from a source other than the Provider or any of its directors, officers, employees, agents or advisors (including, without limitation,\nattorneys, accountants, consultants, bankers and financial advisors) (collectively, "Provider Representatives"), provided that such source is not bound\nby a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider or any other party with\nrespect to such information. Notwithstanding any other provision hereof, each Provider reserves the right not to make available hereunder any\ninformation, the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.\nEach Recipient hereby agrees that such Recipient and such Recipient's Representatives shall use the Evaluation Material solely for the purpose\nof evaluating a possible negotiated transaction between the Companies and for no other purpose, that the Evaluation Material will be kept\nconfidential and that the Recipient and such Recipient's Representatives will not disclose any of the Evaluation Material in any manner whatsoever;\nprovided, however, that (i) the Recipient may make any disclosure of such information to which the Provider gives its prior written consent and\n(ii) any of such information may be disclosed to the Recipient's Representatives who need to know such information for the sole purpose of\nevaluating a possible negotiated transaction between the Companies, who are provided with a copy of this agreement and who agree to be bound by\nthe terms hereof to the same extent as if they were such Recipient. In any event, each Recipient agrees to undertake reasonable precautions to\nsafeguard and protect the confidentiality of the Evaluation Material, to accept responsibility for any breach of this agreement by any of such\nRecipient's Representatives, and at such Recipient's sole expense to take all reasonable measures (including but not limited to court proceedings) to\nrestrain such Recipient's Representatives from prohibited or unauthorized disclosure or uses of the Evaluation Material.\n1\nIn addition, each Recipient agrees that, without the prior written consent of the Provider, such Recipient and such Recipient's Representatives\nwill not disclose to any other person the fact that the Evaluation Material has been made available to such Recipient, that discussions or negotiations\nare taking place concerning a possible transaction between the Companies or any of the terms, conditions or other facts with respect thereto\n(including the status thereof) provided, however, that such Recipient may make such disclosure if the Provider has already done so or it has received\nthe written opinion of its outside counsel that such disclosure must be made by it in order that it not commit a violation of law. Without limiting the\ngenerality of the foregoing, each Recipient further agrees that, without the prior written consent of the Provider, it will not, directly or indirectly,\nenter into any agreement, arrangement or understanding, or any discussions which might lead to such agreement, arrangement or understanding, with\nany person regarding a possible transaction between the Companies. The term person as used in this agreement shall be broadly interpreted to\ninclude the media and any corporation, partnership, group, individual or other entity.\nIn the event that either Recipient or any of such Recipient's Representatives are requested or required (by oral questions, interrogatories,\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the\nEvaluation Material, such Recipient shall provide the Provider with prompt written notice of any such request or requirement so that the Provider\nmay seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this agreement. If, in the absence of\na\nprotective order or other remedy or the receipt of a waiver by the Provider, the Recipient or any of such Recipient's Representatives are nonetheless,\nin\nthe opinion of counsel, legally compelled to disclose Evaluation Material such Recipient or such Recipient's Representatives may, without\nliability hereunder, disclose only that portion of the Evaluation Material which such counsel advises the Recipient is legally required to be disclosed\nIf either Company decides that it does not wish to proceed with a transaction with the other, it will promptly inform the other of that decision.\nIn that case, or at any time upon the request of either Company for any reason, the other Company will promptly [deliver to the notifying or\nrequesting Company all Evaluation Material (and all copies thereof) furnished to the notified or requested Company in its capacity as a Recipient or\nsuch Recipient's Representatives by or on behalf of the notifying or requesting Company in its capacity as a Provider pursuant hereto. In the event of\nsuch a decision or request, all [other] Evaluation Material prepared by the notified or requested Company in its capacity as a Recipient or such\nRecipient's Representatives shall, at the Recipient's option, be destroyed or returned and no copy thereof shall be retained [except for one archival\ncopy which may be retained by such recipient's outside counsel or in-house general counsel] and the Recipient shall provide to the notifying or\nrequesting Company a certificate of compliance with this sentence. Notwithstanding the return or destruction of the Evaluation Material, the notified\nor requested Company in its capacity as a Recipient and such Recipient's Representatives will continue to be bound by such Recipient's respective\nobligations of confidentiality and other obligations hereunder.\nEach Company understands and acknowledges that neither Company, in its capacity as a Provider, nor such Provider's Representatives makes\nany representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such\nProvider and shall have no liability to the other.\nIn consideration of the Evaluation Material being furnished to a Recipient, the Recipient hereby agrees that, for a period of two years, neither it\nnor any of its affiliates will solicit to employ any of the officers or employees of the Provider with whom it has had contact or who was specifically\nidentified to it by the Provider or any of such Provider's Representatives for purposes hereof during the period of the Recipient's investigation of the\nProvider, so long as they are employed by the Provider, without obtaining the prior written consent of the Provider. Such two-year period shall be\nmeasured from, and expire two years following, the later of (i) the date of this agreement, (ii) the date of last contact by the Recipient or any of such\nRecipient's Representatives with the applicable officer or employee or (iii) the date on which the applicable officer or employee was identified to the\nRecipient or any of such Recipient's Representatives by the Provider or any of its Representatives for purposes hereof. This restriction shall not\napply to employees of Provider who respond to a general solicitation for employment published or posted by Recipient.\n2\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that\nthe Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of both\nCompanies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by\neither Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain\nentitled to such protection under these privileges, this agreement, and under the joint defense doctrine.\nEach Company, in its capacity as a Recipient, acknowledges and agrees that such Recipient is aware (and that such Recipient's Representatives\nare aware or, upon receipt of any Evaluation Material, will be advised by such Recipient) of the restrictions imposed by the United States federal\nsecurities laws and other applicable foreign and domestic laws on a person possessing material non-public information about a public company and\nthat such Recipient and such Recipient's Representatives will comply with such laws.\nEach Company agrees that, for a period of three years from the date of this agreement, unless such shall have been specifically invited in\nwriting by the other Company, neither the agreeing Company nor any of its affiliates (as such term is defined under the Securities Exchange Act of\n1934, as amended (the "1934 Act")) or persons who are Recipient Representatives or Provider Representatives with respect to the agreeing\nCompany will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or\nparticipate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in,\n(1) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or\nexchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring,\nliquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any "solicitation"\nof\n"proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the\nother Company; (b) form, join or in any way participate in a "group" (as defined under the 1934 Act) with respect to the securities of the other\nCompany; (c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the\nother Company; (d) take any action which might force the other Company to make a public announcement regarding any of the types of matters set\nforth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nEach Company understands and agrees that no contract or agreement providing for any transaction between the Companies shall be deemed to\nexist between the Companies unless and until a final definitive agreement has been executed and delivered, and each Company hereby waives, in\nadvance, any claims (including, without limitation, breach of contract but excluding any claims arising from a breach of this Confidentiality\nAgreement) in connection with any transaction involving the other Company unless and until both Companies shall have entered into a final\ndefinitive agreement. Each Company also agrees that unless and until a final definitive agreement regarding a transaction between the Companies\nhas been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such a transaction\nby\nvirtue of this agreement except for the matters specifically agreed to herein. Each Company further acknowledges and agrees that the other Company\nreserves the right, in its sole discretion, to reject any and all proposals made by the agreeing Company or any of the persons who are Recipient\nRepresentatives or Provider Representatives with respect to the Company with regard to a transaction between the Companies, and to terminate\ndiscussions and negotiations with the agreeing Company at any time. Each Company further agrees that (i) the other Company and the persons who\nare\nRecipient\nRepresentatives\nor\nProvider\nRepresentatives\nwith\nrespect\nto\nthe\nother\nCompany\nshall\nbe\nfree\nto\nconduct\nany\nprocess\nfor\nany\ntransaction\ninvolving the other Company, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other\ninterested parties and entering into a definitive agreement therewith without prior notice to the agreeing Company or any other person), (ii) any\nprocedures relating to such process or transaction may be changed at any time without notice to the agreeing Company or any other person and\n(iii) the agreeing Company shall not have any claims whatsoever against the other Company, the persons who are Recipient Representatives or\nProvider Representatives with respect to the other Company or any of their respective directors, officers, stockholders, owners, affiliates or agents\narising out of or relating to any transaction involving the other Company (other than those as against the parties to a definitive agreement between\nthe Companies, including this\n3\nConfidentiality Agreement in accordance with the term thereof) nor, unless a definitive agreement is entered into with the agreeing Company, against\nany third party with whom a transaction is entered into. Neither this paragraph nor any other provision in this agreement can be waived or amended\nin favor of either Company except by written consent of the other Company, which consent shall specifically refer to this paragraph (or such\nprovision) and explicitly make such waiver or amendment.\nIt\nis\nunderstood\nand\nagreed\nthat\nno\nfailure\nor\ndelay\nby\neither\nCompany\nin\nexercising\nany\nright,\npower\nor\nprivilege\nhereunder\nshall\noperate\nas\na\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor privilege hereunder.\nIt is further understood and agreed that money damages would not be a sufficient remedy for any breach of this agreement by either Company\nor any of its Representatives and that the Company against which such breach is committed shall be entitled to seek equitable relief, including\ninjunction\nand\nspecific\nperformance,\nas\na\nremedy\nfor\nany\nsuch\nbreach.\nSuch\nremedies\nshall\nnot\nbe\ndeemed\nto\nbe\nthe\nexclusive\nremedies\nfor\na\nbreach\nby either Company of this agreement but shall be in addition to all other remedies available at law or equity to the Company against which such\nbreach is committed. In the event of litigation relating to this agreement, if a court of competent jurisdiction determines that either Company or any\nof the persons who are Recipient Representatives or Provider Representatives with respect to such Company has breached this agreement, then the\nCompany Recipient Representatives or Provider Representatives of which, is determined to have so breached shall be liable and pay to the other\nCompany the reasonable legal fees incurred by the other Company in connection with such litigation, including any appeal therefrom.\nThis agreement is for the benefit of the each Company, the persons who are Recipient Representatives or Provider Representatives with respect\nto such Company and their respective, directors, officers, stockholders, owners, affiliates, and agents, and shall be governed by and construed in\naccordance\nwith\nthe\nlaws\nof\nthe\nState\nof\nWashington\n(the\n"Subject\nState")\napplicable\nto\nagreements\nmade\nand\nto\nbe\nperformed\nentirely\nwithin\nsuch\nState. Each Company also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the Subject State\nlocated within the County of King and of the United States of America located in the Western District of the Subject State for any actions, suits or\nproceedings arising out of or relating to this agreement (and each Company agrees not to commence any action, suit or proceeding relating thereto\nexcept in such courts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to such Company's\naddress set forth below shall be effective service of process for any action, suit or proceeding brought against such Company in any such court).\nEach Company hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out\nof\nthis agreement in the courts of the Subject State or the United States of America located in the Subject State, and hereby further irrevocably and\nunconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been\nbrought in an inconvenient forum.\nThis agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements,\nunderstandings, arrangements and discussions between the Companies regarding such subject matter.\nThis agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute\na\nsingle instrument.\nIN WITNESS WHEREOF, each Company has caused this agreement to be signed by its duly authorized representatives as of the date written\nbelow.\nDate: 8/14/2007\nPhotoWorks, Inc:\nAmerican Greetings Corporation:\nSuite 200, 71 Columbia Street\nADDRESS FOR NOTICE:\nSeattle, WA 98104\nOne American Road\nBrooklyn, Ohio 44144\nAttn: General Counsel\nBy:\n/s/ Andrew Wood\nBy:\n/s/ Catherine M. Kilbane\nName: Andrew Wood\nName: Catherine M. Kilbane\nTitle: Chief Executive Officer\nTitle: Senior Vice President,\nGeneral Counsel and Secretary\n4	EX-99.(D)(10) 9 dex99d10.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(10)\nCONFIDENTIALITY AGREEMENT\nIn connection with the consideration of a possible negotiated transaction between each of the parties that have signed this agreement or its\nrespective subsidiaries, affiliates or divisions (each such party being hereinafter referred to, collectively with such subsidiaries, affiliates and\ndivisions, as a “Company”), each Company (in its capacity as a provider of information hereunder being referred to as a “Provider”) is prepared to\nmake available to the other Company (in its capacity as a recipient of information hereunder being referred to as a “Recipient”) certain information\nconcerning the business, financial condition, operations, assets and liabilities of the Provider. As a condition to such information being provided to\neach Recipient and its Recipient Representatives (as hereinafter defined), each Recipient agrees to treat any information concerning the Provider\n(whether prepared by the Provider, such Recipient’s Representatives or otherwise and irrespective of the form of communication) which is furnished\nto the Recipient and such Recipient’s Representatives now or in the future by or on behalf of the Provider (herein collectively referred to, with\nrespect to information furnished by or on behalf of either Company in its capacity as a Provider to the other Company in its capacity as a Recipient,\nas the “Evaluation Material”) in accordance with the provisions of this agreement, and to take or abstain from taking certain other actions as\nhereinafter set forth. As used in this letter, a Recipient’s “Representatives” shall include the directors, officers, employees, agents, partners or\nadvisors of such Recipient (including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) and those of such\nRecipient’s parent company, subsidiaries and affiliates. Notwithstanding any other provision hereof, each Company reserves the right not to make\navailable hereunder any information, the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.\nThe term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents\nprepared by either Recipient or such Recipient’s Representatives which contain, reflect or are based upon, in whole or in part, the information\nfurnished to such Recipient or such Recipient’s Representatives pursuant hereto. The term Evaluation Material does not include information which\n(1) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or such Recipient’s Representatives, (ii) was\nwithin the Recipient’s possession prior to its being furnished to the Recipient by or on behalf of the Provider pursuant hereto, provided that the\nsource of such information was not known by the Recipient to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Provider or any other party with respect to such information or (iii) becomes available to the Recipient on a non-\nconfidential basis from a source other than the Provider or any of its directors, officers, employees, agents or advisors (including, without limitation,\nattorneys, accountants, consultants, bankers and financial advisors) (collectively, “Provider Representatives”), provided that such source is not bound\nby a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider or any other party with\nrespect to such information. Notwithstanding any other provision hereof, each Provider reserves the right not to make available hereunder any\ninformation, the provision of which is determined by it, in its sole discretion, to be inadvisable or inappropriate.\nEach Recipient hereby agrees that such Recipient and such Recipient’s Representatives shall use the Evaluation Material solely for the purpose\nof evaluating a possible negotiated transaction between the Companies and for no other purpose, that the Evaluation Material will be kept\nconfidential and that the Recipient and such Recipient’s Representatives will not disclose any of the Evaluation Material in any manner whatsoever;\nprovided, however, that (i) the Recipient may make any disclosure of such information to which the Provider gives its prior written consent and\n(ii) any of such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of\nevaluating a possible negotiated transaction between the Companies, who are provided with a copy of this agreement and who agree to be bound by\nthe terms hereof to the same extent as if they were such Recipient. In any event, each Recipient agrees to undertake reasonable precautions to\nsafeguard and protect the confidentiality of the Evaluation Material, to accept responsibility for any breach of this agreement by any of such\nRecipient’s Representatives, and at such Recipient’s sole expense to take all reasonable measures (including but not limited to court proceedings) to\nrestrain such Recipient’s Representatives from prohibited or unauthorized disclosure or uses of the Evaluation Material.\n1\nIn addition, each Recipient agrees that, without the prior written consent of the Provider, such Recipient and such Recipient’s Representatives\nwill not disclose to any other person the fact that the Evaluation Material has been made available to such Recipient, that discussions or negotiations\nare taking place concerning a possible transaction between the Companies or any of the terms, conditions or other facts with respect thereto\n(including the status thereof) provided, however, that such Recipient may make such disclosure if the Provider has already done so or it has received\nthe written opinion of its outside counsel that such disclosure must be made by it in order that it not commit a violation of law. Without limiting the\ngenerality of the foregoing, each Recipient further agrees that, without the prior written consent of the Provider, it will not, directly or indirectly,\nenter into any agreement, arrangement or understanding, or any discussions which might lead to such agreement, arrangement or understanding, with\nany person regarding a possible transaction between the Companies. The term person as used in this agreement shall be broadly interpreted to\ninclude the media and any corporation, partnership, group, individual or other entity.\nIn the event that either Recipient or any of such Recipient’s Representatives are requested or required (by oral questions, interrogatories,\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the\nEvaluation Material, such Recipient shall provide the Provider with prompt written notice of any such request or requirement so that the Provider\nmay seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this agreement. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by the Provider, the Recipient or any of such Recipient’s Representatives are nonetheless,\nin the opinion of counsel, legally compelled to disclose Evaluation Material such Recipient or such Recipient’s Representatives may, without\nliability hereunder, disclose only that portion of the Evaluation Material which such counsel advises the Recipient is legally required to be disclosed\nIf either Company decides that it does not wish to proceed with a transaction with the other, it will promptly inform the other of that decision.\nIn that case, or at any time upon the request of either Company for any reason, the other Company will promptly [deliver to the notifying or\nrequesting Company all Evaluation Material (and all copies thereof) furnished to the notified or requested Company in its capacity as a Recipient or\nsuch Recipient’s Representatives by or on behalf of the notifying or requesting Company in its capacity as a Provider pursuant hereto. In the event of\nsuch a decision or request, all [other] Evaluation Material prepared by the notified or requested Company in its capacity as a Recipient or such\nRecipient’s Representatives shall, at the Recipient’s option, be destroyed or returned and no copy thereof shall be retained [except for one archival\ncopy which may be retained by such recipient’s outside counsel or in-house general counsel] and the Recipient shall provide to the notifying or\nrequesting Company a certificate of compliance with this sentence. Notwithstanding the return or destruction of the Evaluation Material, the notified\nor requested Company in its capacity as a Recipient and such Recipient’s Representatives will continue to be bound by such Recipient’s respective\nobligations of confidentiality and other obligations hereunder.\nEach Company understands and acknowledges that neither Company, in its capacity as a Provider, nor such Provider’s Representatives makes\nany representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished by or on behalf of such\nProvider and shall have no liability to the other.\nIn consideration of the Evaluation Material being furnished to a Recipient, the Recipient hereby agrees that, for a period of two years, neither it\nnor any of its affiliates will solicit to employ any of the officers or employees of the Provider with whom it has had contact or who was specifically\nidentified to it by the Provider or any of such Provider’s Representatives for purposes hereof during the period of the Recipient’s investigation of the\nProvider, so long as they are employed by the Provider, without obtaining the prior written consent of the Provider. Such two-year period shall be\nmeasured from, and expire two years following, the later of (i) the date of this agreement, (ii) the date of last contact by the Recipient or any of such\nRecipient’s Representatives with the applicable officer or employee or (iii) the date on which the applicable officer or employee was identified to the\nRecipient or any of such Recipient’s Representatives by the Provider or any of its Representatives for purposes hereof. This restriction shall not\napply to employees of Provider who respond to a general solicitation for employment published or posted by Recipient.\n2\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Company understands and agrees that\nthe Companies have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of both\nCompanies that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided by\neither Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain\nentitled to such protection under these privileges, this agreement, and under the joint defense doctrine.\nEach Company, in its capacity as a Recipient, acknowledges and agrees that such Recipient is aware (and that such Recipient’s Representatives\nare aware or, upon receipt of any Evaluation Material, will be advised by such Recipient) of the restrictions imposed by the United States federal\nsecurities laws and other applicable foreign and domestic laws on a person possessing material non-public information about a public company and\nthat such Recipient and such Recipient’s Representatives will comply with such laws.\nEach Company agrees that, for a period of three years from the date of this agreement, unless such shall have been specifically invited in\nwriting by the other Company, neither the agreeing Company nor any of its affiliates (as such term is defined under the Securities Exchange Act of\n1934, as amended (the “1934 Act”)) or persons who are Recipient Representatives or Provider Representatives with respect to the agreeing\nCompany will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or\nparticipate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in,\n(1) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Company or any of its subsidiaries, (ii) any tender or\nexchange offer, merger or other business combination involving the other Company or any of its subsidiaries, (iii) any recapitalization, restructuring,\nliquidation, dissolution or other extraordinary transaction with respect to the other Company or any of its subsidiaries, or (iv) any “solicitation” of\n“proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the\nother Company; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of the other\nCompany; (c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the\nother Company; (d) take any action which might force the other Company to make a public announcement regarding any of the types of matters set\nforth in (a) above; or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nEach Company understands and agrees that no contract or agreement providing for any transaction between the Companies shall be deemed to\nexist between the Companies unless and until a final definitive agreement has been executed and delivered, and each Company hereby waives, in\nadvance, any claims (including, without limitation, breach of contract but excluding any claims arising from a breach of this Confidentiality\nAgreement) in connection with any transaction involving the other Company unless and until both Companies shall have entered into a final\ndefinitive agreement. Each Company also agrees that unless and until a final definitive agreement regarding a transaction between the Companies\nhas been executed and delivered, neither Company will be under any legal obligation of any kind whatsoever with respect to such a transaction by\nvirtue of this agreement except for the matters specifically agreed to herein. Each Company further acknowledges and agrees that the other Company\nreserves the right, in its sole discretion, to reject any and all proposals made by the agreeing Company or any of the persons who are Recipient\nRepresentatives or Provider Representatives with respect to the Company with regard to a transaction between the Companies, and to terminate\ndiscussions and negotiations with the agreeing Company at any time. Each Company further agrees that (i) the other Company and the persons who\nare Recipient Representatives or Provider Representatives with respect to the other Company shall be free to conduct any process for any transaction\ninvolving the other Company, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other\ninterested parties and entering into a definitive agreement therewith without prior notice to the agreeing Company or any other person), (ii) any\nprocedures relating to such process or transaction may be changed at any time without notice to the agreeing Company or any other person and\n(iii) the agreeing Company shall not have any claims whatsoever against the other Company, the persons who are Recipient Representatives or\nProvider Representatives with respect to the other Company or any of their respective directors, officers, stockholders, owners, affiliates or agents\narising out of or relating to any transaction involving the other Company (other than those as against the parties to a definitive agreement between\nthe Companies, including this\n3\nConfidentiality Agreement in accordance with the term thereof) nor, unless a definitive agreement is entered into with the agreeing Company, against\nany third party with whom a transaction is entered into. Neither this paragraph nor any other provision in this agreement can be waived or amended\nin favor of either Company except by written consent of the other Company, which consent shall specifically refer to this paragraph (or such\nprovision) and explicitly make such waiver or amendment.\nIt is understood and agreed that no failure or delay by either Company in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor privilege hereunder.\nIt is further understood and agreed that money damages would not be a sufficient remedy for any breach of this agreement by either Company\nor any of its Representatives and that the Company against which such breach is committed shall be entitled to seek equitable relief, including\ninjunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach\nby either Company of this agreement but shall be in addition to all other remedies available at law or equity to the Company against which such\nbreach is committed. In the event of litigation relating to this agreement, if a court of competent jurisdiction determines that either Company or any\nof the persons who are Recipient Representatives or Provider Representatives with respect to such Company has breached this agreement, then the\nCompany Recipient Representatives or Provider Representatives of which, is determined to have so breached shall be liable and pay to the other\nCompany the reasonable legal fees incurred by the other Company in connection with such litigation, including any appeal therefrom.\nThis agreement is for the benefit of the each Company, the persons who are Recipient Representatives or Provider Representatives with respect\nto such Company and their respective, directors, officers, stockholders, owners, affiliates, and agents, and shall be governed by and construed in\naccordance with the laws of the State of Washington (the “Subject State”) applicable to agreements made and to be performed entirely within such\nState. Each Company also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the Subject State\nlocated within the County of King and of the United States of America located in the Western District of the Subject State for any actions, suits or\nproceedings arising out of or relating to this agreement (and each Company agrees not to commence any action, suit or proceeding relating thereto\nexcept in such courts, and further agrees that service of any process, summons, notice or document by U.S . registered mail to such Company’s\naddress set forth below shall be effective service of process for any action, suit or proceeding brought against such Company in any such court).\nEach Company hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of\nthis agreement , in the courts of the Subject State or the United States of America located in the Subject State, and hereby further irrevocably and\nunconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been\nbrought in an inconvenient forum.\nThis agreement contains the entire agreement between the Companies regarding the subject matter hereof and supersedes all prior agreements,\nunderstandings, arrangements and discussions between the Companies regarding such subject matter.\nThis agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a\nsingle instrument.\nIN WITNESS WHEREOF, each Company has caused this agreement to be signed by its duly authorized representatives as of the date written\nbelow.\nDate: 8/14/2007\nPhotoWorks, Inc:\nAmerican Greetings Corporation:\nSuite 200, 71 Columbia Street\nSeattle, WA 98104\nADDRESS FOR NOTICE:\nOne American Road\nBrooklyn, Ohio 44144\nAttn: General Counsel\nBy: /s/ Andrew Wood\nBy: /s/ Catherine M. Kilbane\nName: Andrew Wood\nName: Catherine M. Kilbane\nTitle: Chief Executive Officer\nTitle: Senior Vice President,\nGeneral Counsel and Secretary\n4
+bf9870984bc50bc7044b931590791ca6.pdf	effective_date jurisdiction party term	EX-10 .2 3 ex10-2 .htm\nNON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT (“Agreement”) dated as of July 15, 2016\nbut effective as of May 3, 2016 (the “Effective Date”), by and between Wizard World, Inc., a Delaware corporation with a principal place of\nbusiness at 225 California Street, El Segundo, California 90245 (“Employer”), and John D. Maatta, an individual and resident of the State of\nCalifornia with a business address c/o Wizard World, Inc. 225 California Street, El Segundo, California 90245 (“Employee” and together with\nEmployer, the “Parties” and each, a “Party”).\nWITNESSETH:\nWHEREAS, Employee and Employer are entering into that certain Employment Agreement, dated as of the date of this Agreement;\nWHEREAS, in connection with such employment, Employee has been and may be given further access to, generate, or otherwise come\ninto contact with certain proprietary and/or confidential information of Employer or clients of Employer; and\nWHEREAS, Employee and Employer desire to prevent the dissemination, unauthorized disclosure or misuse of such information.\nNOW THEREFORE, the parties hereto mutually agree as follows:\n1. Covenant Not to Solicit. During the period commencing on the Effective Date and ending upon the termination of Employee’s\nemployment for any reason, Employee shall not, directly or indirectly, for Employee’s benefit or the benefit of a third party, (i) induce or attempt\nto induce any employees of Employer to leave the employ of Employer or diminish his or her relationship or Employer or (ii) solicit the business\nof any client or customer of Employer, or any client or customer that could reasonably be expected to be a client or customer of Employer, during\nEmployee’s period of employment with the Company.\n2. Covenant Not to Compete. Except for the activities set forth in Schedule I hereto and as a passive investor in less than five percent\n(5%) of the equity securities of a publicly held company, during the period commencing on the date hereof and ending upon the termination of\nEmployee’s employment for any reason, Employee shall not engage in, own or control an interest in, or act as principal, director or officer of, or\nconsultant to, any firm or corporation (i) engaged in a venture or business substantially similar to that of Employer or (ii) which is in direct or\nindirect competition with Employer within the United States of America, its territories and possessions.\n3. Proprietary Information.\n(a) For purposes of this Agreement, “Proprietary Information” shall mean any information belonging to the business of\nEmployer that has not previously been publicly released by duly authorized representatives of Employer and shall include (but shall not be\nlimited to) information encompassed in all proposals, marketing and sales plans, financial information, costs, pricing information, computer\nprograms (including source code, object code, algorithms and models), customer information, customer lists, and all methods, concepts, know-\nhow or ideas and confidential information belonging to Employer and Employer’s customers or clients. Employee agrees to regard and preserve\nas confidential all Proprietary Information whether Employee has such Proprietary Information in Employee’s memory or in writing or other\nphysical form.\n(b) Notwithstanding the foregoing, “Proprietary Information” shall not include information that (i) is disseminated to the public\nat no fault of Employee, (ii) was obtained from a third party that did not have an obligation of confidentiality to Employer, (iii) is already in the\npossession of Employee and (iv) constitutes any information proposals, marketing and sales plans, financial information, costs, pricing\ninformation, computer programs (including source code, object code, algorithms and models), customer information, customer lists, and all\nmethods, concepts, know-how or ideas, created or generated by Employee for which Employer has not been fully compensated.\n(c) Employee will not, without written authority from Employer to do so, directly or indirectly, disclose or use any Proprietary\nInformation for Employee’s benefit or purposes, nor disclose any Proprietary Information to others, either during the term of Employee’s\nemployment by Employer or thereafter, except as required by the conditions of Employee’s employment by Employer.\n(d) No work or intellectual property created by Employee shall be deemed work for hire and Employer shall only have the\nrights to such work or intellectual property after fully compensating Employee for such work or intellectual property.\n4. Saving Provision. Employee expressly agrees that the covenants set forth in this Agreement are being given to Employer in\nconnection with the employment of Employee by Employer and that such covenants are intended to protect Employer against the competition by\nEmployee, within the terms stated, to the fullest extent deemed reasonable and permitted in law and equity. In the event that the foregoing\nlimitations upon the conduct of Employee are beyond those permitted by law, such limitations, both as to time and geographical area, shall be,\nand be deemed to be, reduced in scope and effect to the maximum extent permitted by law.\n5. Injunctive Relief. Employee acknowledges that (i) disclosure of any Proprietary Information or breach of any of the non-competitive\ncovenants or agreements contained herein will give rise to irreparable injury to Employer or clients of Employer that would be inadequately\ncompensable in damages. Accordingly, Employer, or where appropriate a client of Employer, may seek and obtain injunctive relief against the\nbreach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. Employee further\nacknowledges and agrees that in the event of the termination of employment with Employer, (ii) Employee’s experience and capabilities are such\nthat Employee can obtain employment in business activities which are of a different or non-competing nature with his or her activities as an\nemployee of Employer and (iii) the enforcement of a remedy hereunder by way of injunction shall not prevent Employee from earning a\nreasonable livelihood. Employee further acknowledges and agrees that the covenants contained herein are necessary for the protection of the\nCompany’s legitimate business interests and are reasonable in scope and content, and that Employee will, promptly upon the request of Employer\nat any time, cause any subsequent employer to execute and deliver to Employer a confidentiality and non-disclosure agreement in substantially\nthe form of Section 2 hereof and otherwise satisfactory to Employer.\n6. Enforceability. The provisions of this Agreement shall be enforceable notwithstanding the existence of any claim or cause of action\nof Employee against Employer whether predicated on this Agreement or otherwise.\n7. Term. This Agreement shall commence on the date hereof and shall terminate upon the termination of Employee’s employment for\nany reason.\n8. Governing Law. The Agreement shall be construed in accordance with the laws of the State of New York and any dispute under this\nAgreement will only be brought in the state and federal courts located in the State of New York.\n9. General. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof. This Agreement may be\nmodified only by an instrument in writing signed by both Parties hereto. Any notice to be given under this Agreement shall be sufficient if it is in\nwriting and is sent by certified or registered mail to Employee at his residence address as the same appears on the books and records of Employer\nor to Employer at its principal office, attention of the President, or otherwise as directed by Employer, from time to time. Non-compliance with\nany one paragraph of this Agreement shall not have an effect on the validity of any other part of this Agreement. The provisions of this\nAgreement relating to confidentiality or non-competition shall survive the termination of employment, however caused.\n[-signature page follows-]\nIN WITNESS HEREOF, the undersigned execute this Agreement as of the date first set forth above.\nEMPLOYER\nWIZARD WORLD, INC.\nBy: /s/ Greg Suess\nGreg Suess\nChairman of the Compensation Committee\nEMPLOYEE\n/s/ John D. Maatta\nJohn D. Maatta	EX-10.2 3 ex10-2.htm\nNON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT (“Agreement”) dated as of July 15, 2016\nbut effective as of May 3, 2016 (the “Effective Date”), by and between Wizard World, Inc., a Delaware corporation with a principal place of\nbusiness at 225 California Street, El Segundo, California 90245 (“Employer”), and John D. Maatta, an individual and resident of the State of\nCalifornia with a business address c/o Wizard World, Inc. 225 California Street, El Segundo, California 90245 (“Employee” and together with\nEmployer, the “Parties” and each, a “Party”).\nWITNESSETH:\nWHEREAS, Employee and Employer are entering into that certain Employment Agreement, dated as of the date of this Agreement;\nWHEREAS, in connection with such employment, Employee has been and may be given further access to, generate, or otherwise come\ninto contact with certain proprietary and/or confidential information of Employer or clients of Employer; and\nWHEREAS, Employee and Employer desire to prevent the dissemination, unauthorized disclosure or misuse of such information.\nNOW THEREFORE, the parties hereto mutually agree as follows:\n1. Covenant Not to Solicit. During the period commencing on the Effective Date and ending upon the termination of Employee’s\nemployment for any reason, Employee shall not, directly or indirectly, for Employee’s benefit or the benefit of a third party, (i) induce or attempt\nto induce any employees of Employer to leave the employ of Employer or diminish his or her relationship or Employer or (ii) solicit the business\nof any client or customer of Employer, or any client or customer that could reasonably be expected to be a client or customer of Employer, during\nEmployee’s period of employment with the Company.\n2. Covenant Not to Compete. Except for the activities set forth in Schedule I hereto and as a passive investor in less than five percent\n(5%) of the equity securities of a publicly held company, during the period commencing on the date hereof and ending upon the termination of\nEmployee’s employment for any reason, Employee shall not engage in, own or control an interest in, or act as principal, director or officer of, or\nconsultant to, any firm or corporation (i) engaged in a venture or business substantially similar to that of Employer or (ii) which is in direct or\nindirect competition with Employer within the United States of America, its territories and possessions.\n3. Proprietary Information.\n(a) For purposes of this Agreement, “Proprietary Information” shall mean any information belonging to the business of\nEmployer that has not previously been publicly released by duly authorized representatives of Employer and shall include (but shall not be\nlimited to) information encompassed in all proposals, marketing and sales plans, financial information, costs, pricing information, computer\nprograms (including source code, object code, algorithms and models), customer information, customer lists, and all methods, concepts, know-\nhow or ideas and confidential information belonging to Employer and Employer’s customers or clients. Employee agrees to regard and preserve\nas confidential all Proprietary Information whether Employee has such Proprietary Information in Employee’s memory or in writing or other\nphysical form.\n(b) Notwithstanding the foregoing, “Proprietary Information” shall not include information that (i) is disseminated to the public\nat no fault of Employee, (ii) was obtained from a third party that did not have an obligation of confidentiality to Employer, (iii) is already in the\npossession of Employee and (iv) constitutes any information proposals, marketing and sales plans, financial information, costs, pricing\ninformation, computer programs (including source code, object code, algorithms and models), customer information, customer lists, and all\nmethods, concepts, know-how or ideas, created or generated by Employee for which Employer has not been fully compensated.\n(c) Employee will not, without written authority from Employer to do so, directly or indirectly, disclose or use any Proprietary\nInformation for Employee’s benefit or purposes, nor disclose any Proprietary Information to others, either during the term of Employee’s\nemployment by Employer or thereafter, except as required by the conditions of Employee’s employment by Employer.\n(d) No work or intellectual property created by Employee shall be deemed work for hire and Employer shall only have the\nrights to such work or intellectual property after fully compensating Employee for such work or intellectual property.\n4. Saving_Provision. Employee expressly agrees that the covenants set forth in this Agreement are being given to Employer in\nconnection with the employment of Employee by Employer and that such covenants are intended to protect Employer against the competition by\nEmployee, within the terms stated, to the fullest extent deemed reasonable and permitted in law and equity. In the event that the foregoing\nlimitations upon the conduct of Employee are beyond those permitted by law, such limitations, both as to time and geographical area, shall be,\nand be deemed to be, reduced in scope and effect to the maximum extent permitted by law.\n5. Injunctive Relief. Employee acknowledges that (i) disclosure of any Proprietary Information or breach of any of the non-competitive\ncovenants or agreements contained herein will give rise to irreparable injury to Employer or clients of Employer that would be inadequately\ncompensable in damages. Accordingly, Employer, or where appropriate a client of Employer, may seek and obtain injunctive relief against the\nbreach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. Employee further\nacknowledges and agrees that in the event of the termination of employment with Employer, (ii) Employee’s experience and capabilities are such\nthat Employee can obtain employment in business activities which are of a different or non-competing nature with his or her activities as an\nemployee of Employer and (iii) the enforcement of a remedy hereunder by way of injunction shall not prevent Employee from earning a\nreasonable livelihood. Employee further acknowledges and agrees that the covenants contained herein are necessary for the protection of the\nCompany’s legitimate business interests and are reasonable in scope and content, and that Employee will, promptly upon the request of Employer\nat any time, cause any subsequent employer to execute and deliver to Employer a confidentiality and non-disclosure agreement in substantially\nthe form of Section 2 hereof and otherwise satisfactory to Employer.\n6. Enforceability. The provisions of this Agreement shall be enforceable notwithstanding the existence of any claim or cause of action\nof Employee against Employer whether predicated on this Agreement or otherwise.\n7. Term. This Agreement shall commence on the date hereof and shall terminate upon the termination of Employee’s employment for\nany reason.\n8. Governing Law. The Agreement shall be construed in accordance with the laws of the State of New York and any dispute under this\nAgreement will only be brought in the state and federal courts located in the State of New York.\n9. General. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof. This Agreement may be\nmodified only by an instrument in writing signed by both Parties hereto. Any notice to be given under this Agreement shall be sufficient if it is in\nwriting and is sent by certified or registered mail to Employee at his residence address as the same appears on the books and records of Employer\nor to Employer at its principal office, attention of the President, or otherwise as directed by Employer, from time to time. Non-compliance with\nany one paragraph of this Agreement shall not have an effect on the validity of any other part of this Agreement. The provisions of this\nAgreement relating to confidentiality or non-competition shall survive the termination of employment, however caused.\n[-signature page follows-]\nIN WITNESS HEREOF, the undersigned execute this Agreement as of the date first set forth above.\nEMPLOYER\nWIZARD WORLD, INC.\nBy: /s/ Greg Suess\nGreg Suess\nChairman of the Compensation Committee\nEMPLOYEE\n/s/ John D. Maatta\nJohn D. Maatta	EX-10.2 3 ex10-2.htm\nNON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT ("Agreement") dated as of July 15, 2016\nbut\neffective as of May 3, 2016 (the "Effective Date"), by and between Wizard World, Inc., a Delaware corporation with a principal place of\nbusiness at 225 California Street, El Segundo, California 90245 ("Employer"), and John D. Maatta, an individual and resident of the State of\nCalifornia with a business address c/o Wizard World, Inc. 225 California Street, El Segundo, California 90245 ("Employee" and together with\nEmployer, the "Parties" and each, a "Party").\nWITNESSETH:\nWHEREAS, Employee and Employer are entering into that certain Employment Agreement, dated as of the date of this Agreement;\nWHEREAS, in connection with such employment, Employee has been and may be given further access to, generate, or otherwise come\ninto contact with certain proprietary and/or confidential information of Employer or clients of Employer; and\nWHEREAS, Employee and Employer desire to prevent the dissemination, unauthorized disclosure or misuse of such information\nNOW THEREFORE, the parties hereto mutually agree as follows:\n1. Covenant Not to Solicit. During the period commencing on the Effective Date and ending upon the termination of Employee's\nemployment\nfor\nany reason, Employee shall not, directly or indirectly, for Employee's benefit or the benefit of a third party, (i) induce or attempt\nto\ninduce any employees of Employer to leave the employ of Employer or diminish his or her relationship or Employer or (ii) solicit the business\nof any client or customer of Employer, or any client or customer that could reasonably be expected to be a client or customer of Employer, during\nEmployee's period of employment with the Company.\n2. Covenant Not to Compete. Except for the activities set forth in Schedule I hereto and as a passive investor in less than five percent\n(5%)\nof\nthe\nequity securities of a publicly held company, during the period commencing on the date hereof and ending upon the termination\nof\nEmployee's employment for any reason, Employee shall not engage in, own or control an interest in, or act as principal, director or officer of, or\nconsultant to, any firm or corporation (i) engaged in a venture or business substantially similar to that of Employer or (ii) which is in direct or\nindirect competition with Employer within the United States of America, its territories and possessions.\n3. ProprietaryInformation\n(a) For purposes of this Agreement, "Proprietary Information" shall mean any information belonging to the business of\nEmployer that has not previously been publicly released by duly authorized representatives of Employer and shall include (but shall not be\nlimited to) information encompassed in all proposals, marketing and sales plans, financial information, costs, pricing information, computer\nprograms (including source code, object code, algorithms and models), customer information, customer lists, and all methods, concepts, know-\nhow or ideas and confidential information belonging to Employer and Employer's customers or clients. Employee agrees to regard and preserve\nas confidential all Proprietary Information whether Employee has such Proprietary Information in Employee's memory or in writing or other\nphysical form.\n(b) Notwithstanding the foregoing, "Proprietary Information" shall not include information that (i) is disseminated to the public\nat no fault of Employee, (ii) was obtained from a third party that did not have an obligation of confidentiality to Employer, (iii) is already in the\npossession of Employee and (iv) constitutes any information proposals, marketing and sales plans, financial information, costs, pricing\ninformation, computer programs (including source code, object code, algorithms and models), customer information, customer lists, and all\nmethods, concepts, know-how or ideas, created or generated by Employee for which Employer has not been fully compensated.\n(c) Employee will not, without written authority from Employer to do so, directly or indirectly, disclose or use any Proprietary\nInformation for Employee's benefit or purposes, nor disclose any Proprietary Information to others, either during the term of Employee's\nemployment by Employer or thereafter, except as required by the conditions of Employee's employment by Employer.\n(d) No work or intellectual property created by Employee shall be deemed work for hire and Employer shall only have the\nrights to such work or intellectual property after fully compensating Employee for such work or intellectual property.\n4. ving Provision. Employee expressly agrees that the covenants set forth in this Agreement are being given to Employer in\nconnection with the employment of Employee by Employer and that such covenants are intended to protect Employer against the competition by\nEmployee, within the terms stated, to the fullest extent deemed reasonable and permitted in law and equity. In the event that the foregoing\nlimitations upon the conduct of Employee are beyond those permitted by law, such limitations, both as to time and geographical area, shall be,\nand be deemed to be, reduced in scope and effect to the maximum extent permitted by law.\n5. Injunctive Relief. Employee acknowledges that (i) disclosure of any Proprietary Information or breach of any of the non-competitive\ncovenants or agreements contained herein will give rise to irreparable injury to Employer or clients of Employer that would be\ninadequately\ncompensable in damages. Accordingly, Employer, or where appropriate a client of Employer, may seek and obtain injunctive relief against the\nbreach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. Employee further\nacknowledges and agrees that in the event of the termination of employment with Employer, (ii) Employee's experience and capabilities\nare\nsuch\nthat Employee can obtain employment in business activities which are of a different or non-competing nature with his or her activities as\nan\nemployee of Employer and (iii) the enforcement of a remedy hereunder by way of injunction shall not prevent Employee from earning\na\nreasonable livelihood. Employee further acknowledges and agrees that the covenants contained herein are necessary for the protection of the\nCompany's legitimate business interests and are reasonable in scope and content, and that Employee will, promptly upon the request of Employer\nat any time, cause any subsequent employer to execute and deliver to Employer a confidentiality and non-disclosure agreement in substantially\nthe form of Section 2 hereof and otherwise satisfactory to Employer.\n6. Enforceability. The provisions of this Agreement shall be enforceable notwithstanding the existence of any claim or cause of action\nof Employee against Employer whether predicated on this Agreement or otherwise.\n7. Term. This Agreement shall commence on the date hereof and shall terminate upon the termination of Employee's employment for\nany reason\n8.\nGoverning Law. The Agreement shall be construed in accordance with the laws of the State of New York and any dispute under this\nAgreement will only be brought in the state and federal courts located in the State of New York.\n9. General. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof. This Agreement may be\nmodified only by an instrument in writing signed by both Parties hereto. Any notice to be given under this Agreement shall be sufficient if it is in\nwriting and is sent by certified or registered mail to Employee at his residence address as the same appears on the books and records of Employer\nor\nto Employer at its principal office, attention of the President, or otherwise as directed by Employer, from time to time. Non-compliance with\nany one paragraph of this Agreement shall not have an effect on the validity of any other part of this Agreement. The provisions of this\nAgreement relating to confidentiality or non-competition shall survive the termination of employment, however caused.\n[-signature page follows-]\nIN\nWITNESS HEREOF, the undersigned execute this Agreement as of the date first set forth above.\nEMPLOYER\nWIZARD WORLD, INC.\nBy: /s/ Greg Suess\nGreg Suess\nChairman of the Compensation Committee\nEMPLOYEE\n/s/ John D. Maatta\nJohn D. Maatta	EX-10 .2 3 ex10-2 .htm\nNON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT (“Agreement”) dated as of July 15, 2016\nbut effective as of May 3, 2016 (the “Effective Date”), by and between Wizard World, Inc., a Delaware corporation with a principal place of\nbusiness at 225 California Street, El Segundo, California 90245 (“Employer”), and John D. Maatta, an individual and resident of the State of\nCalifornia with a business address c/o Wizard World, Inc. 225 California Street, El Segundo, California 90245 (“Employee” and together with\nEmployer, the “Parties” and each, a “Party”).\nWITNESSETH:\nWHEREAS, Employee and Employer are entering into that certain Employment Agreement, dated as of the date of this Agreement;\nWHEREAS, in connection with such employment, Employee has been and may be given further access to, generate, or otherwise come\ninto contact with certain proprietary and/or confidential information of Employer or clients of Employer; and\nWHEREAS, Employee and Employer desire to prevent the dissemination, unauthorized disclosure or misuse of such information.\nNOW THEREFORE, the parties hereto mutually agree as follows:\n1. Covenant Not to Solicit. During the period commencing on the Effective Date and ending upon the termination of Employee’s\nemployment for any reason, Employee shall not, directly or indirectly, for Employee’s benefit or the benefit of a third party, (i) induce or attempt\nto induce any employees of Employer to leave the employ of Employer or diminish his or her relationship or Employer or (ii) solicit the business\nof any client or customer of Employer, or any client or customer that could reasonably be expected to be a client or customer of Employer, during\nEmployee’s period of employment with the Company.\n2. Covenant Not to Compete. Except for the activities set forth in Schedule I hereto and as a passive investor in less than five percent\n(5%) of the equity securities of a publicly held company, during the period commencing on the date hereof and ending upon the termination of\nEmployee’s employment for any reason, Employee shall not engage in, own or control an interest in, or act as principal, director or officer of, or\nconsultant to, any firm or corporation (i) engaged in a venture or business substantially similar to that of Employer or (ii) which is in direct or\nindirect competition with Employer within the United States of America, its territories and possessions.\n3. Proprietary Information.\n(a) For purposes of this Agreement, “Proprietary Information” shall mean any information belonging to the business of\nEmployer that has not previously been publicly released by duly authorized representatives of Employer and shall include (but shall not be\nlimited to) information encompassed in all proposals, marketing and sales plans, financial information, costs, pricing information, computer\nprograms (including source code, object code, algorithms and models), customer information, customer lists, and all methods, concepts, know-\nhow or ideas and confidential information belonging to Employer and Employer’s customers or clients. Employee agrees to regard and preserve\nas confidential all Proprietary Information whether Employee has such Proprietary Information in Employee’s memory or in writing or other\nphysical form.\n(b) Notwithstanding the foregoing, “Proprietary Information” shall not include information that (i) is disseminated to the public\nat no fault of Employee, (ii) was obtained from a third party that did not have an obligation of confidentiality to Employer, (iii) is already in the\npossession of Employee and (iv) constitutes any information proposals, marketing and sales plans, financial information, costs, pricing\ninformation, computer programs (including source code, object code, algorithms and models), customer information, customer lists, and all\nmethods, concepts, know-how or ideas, created or generated by Employee for which Employer has not been fully compensated.\n(c) Employee will not, without written authority from Employer to do so, directly or indirectly, disclose or use any Proprietary\nInformation for Employee’s benefit or purposes, nor disclose any Proprietary Information to others, either during the term of Employee’s\nemployment by Employer or thereafter, except as required by the conditions of Employee’s employment by Employer.\n(d) No work or intellectual property created by Employee shall be deemed work for hire and Employer shall only have the\nrights to such work or intellectual property after fully compensating Employee for such work or intellectual property.\n4. Saving Provision. Employee expressly agrees that the covenants set forth in this Agreement are being given to Employer in\nconnection with the employment of Employee by Employer and that such covenants are intended to protect Employer against the competition by\nEmployee, within the terms stated, to the fullest extent deemed reasonable and permitted in law and equity. In the event that the foregoing\nlimitations upon the conduct of Employee are beyond those permitted by law, such limitations, both as to time and geographical area, shall be,\nand be deemed to be, reduced in scope and effect to the maximum extent permitted by law.\n5. Injunctive Relief. Employee acknowledges that (i) disclosure of any Proprietary Information or breach of any of the non-competitive\ncovenants or agreements contained herein will give rise to irreparable injury to Employer or clients of Employer that would be inadequately\ncompensable in damages. Accordingly, Employer, or where appropriate a client of Employer, may seek and obtain injunctive relief against the\nbreach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. Employee further\nacknowledges and agrees that in the event of the termination of employment with Employer, (ii) Employee’s experience and capabilities are such\nthat Employee can obtain employment in business activities which are of a different or non-competing nature with his or her activities as an\nemployee of Employer and (iii) the enforcement of a remedy hereunder by way of injunction shall not prevent Employee from earning a\nreasonable livelihood. Employee further acknowledges and agrees that the covenants contained herein are necessary for the protection of the\nCompany’s legitimate business interests and are reasonable in scope and content, and that Employee will, promptly upon the request of Employer\nat any time, cause any subsequent employer to execute and deliver to Employer a confidentiality and non-disclosure agreement in substantially\nthe form of Section 2 hereof and otherwise satisfactory to Employer.\n6. Enforceability. The provisions of this Agreement shall be enforceable notwithstanding the existence of any claim or cause of action\nof Employee against Employer whether predicated on this Agreement or otherwise.\n7. Term. This Agreement shall commence on the date hereof and shall terminate upon the termination of Employee’s employment for\nany reason.\n8. Governing Law. The Agreement shall be construed in accordance with the laws of the State of New York and any dispute under this\nAgreement will only be brought in the state and federal courts located in the State of New York.\n9. General. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof. This Agreement may be\nmodified only by an instrument in writing signed by both Parties hereto. Any notice to be given under this Agreement shall be sufficient if it is in\nwriting and is sent by certified or registered mail to Employee at his residence address as the same appears on the books and records of Employer\nor to Employer at its principal office, attention of the President, or otherwise as directed by Employer, from time to time. Non-compliance with\nany one paragraph of this Agreement shall not have an effect on the validity of any other part of this Agreement. The provisions of this\nAgreement relating to confidentiality or non-competition shall survive the termination of employment, however caused.\n[-signature page follows-]\nIN WITNESS HEREOF, the undersigned execute this Agreement as of the date first set forth above.\nEMPLOYER\nWIZARD WORLD, INC.\nBy: /s/ Greg Suess\nGreg Suess\nChairman of the Compensation Committee\nEMPLOYEE\n/s/ John D. Maatta\nJohn D. Maatta
+cce6a9643be4abacd213753c964ff747.pdf	effective_date jurisdiction party term	EX-99.E .3 3 y72866d9exv99wew3.htm EX-99.E.3: NONDISCLOSURE AGREEMENT\nExecution Copy\nExhibit (e)(3)\nNONDISCLOSURE AGREEMENT\nDisclosing Party: Omrix Biopharmaceuticals, Inc.\nRecipient: Ethicon, Inc.\nThis NONDISCLOSURE AGREEMENT (this “Agreement”) is made effective as of the 1st day of August, 2008, by and between\nOmrix Biopharmaceuticals, Inc. (the “Company”) and Ethicon, Inc. (the “Recipient”) to assure the protection and preservation of the\nconfidential and/or proprietary nature of information to be disclosed to the Recipient by the Company.\nWHEREAS, in order to pursue negotiations or discussions in contemplation or furtherance of a business relationship between\nthe parties or strategic transaction involving the parties, the Company has agreed to disclose and the Recipient has agreed to\nreceive certain data and other information which are of a proprietary and confidential nature (as defined in Paragraph 1 below and\nreferred to herein as “Confidential Information”). The Confidential Information will be used solely for the purpose of evaluating a\npotential business relationship between the parties or strategic transaction involving the parties and will not be used, directly or\nindirectly, for any other purpose, except as required under Paragraph 3 of this Agreement;\nWHEREAS, the Company acknowledges that it previously entered into various agreements with the Recipient that contain\nvarious confidentiality provisions related to the subject matter of those agreements and the Company acknowledges that this\nAgreement is not intended to affect or modify in any way any of those existing agreements or confidentiality provisions and that the\nCompany and the Recipient will continue their existing relationship and operate in the ordinary course of business while these\nnegotiations and discussions take place;\nNOW, THEREFORE, in reliance upon and in consideration of the following undertakings, and for other good and valuable\nconsideration, the receipt of which is hereby acknowledged, the parties to this Agreement hereby agree as follows:\n1. Subject to the limitations set forth in Paragraph 2, Confidential Information shall mean any proprietary and confidential\ninformation of the Company such as any, process, technique, compound, chemical structure, library, method of synthesis, program,\ndesign, drawing, formula, test data or other commercial or technical data or information relating to any research project, third party\nagreements, work in process, trade secret, proprietary right, actual or planned pre-clinical or clinical activity, development,\nengineering, manufacturing, marketing, servicing, financing or personnel matter relating to the Company, its present or future\ntechnology, products, customers, suppliers, employees, investors, business matters or business partners.\n2. The term “Confidential Information” shall not be deemed to include information which, to the extent that the Recipient can\nestablish by competent proof:\n(a) at the time of disclosure is in the public domain;\n(b) after disclosure, becomes part of the public domain by publication or otherwise, except by breach of this Agreement by the\nRecipient;\n(e) was in the Recipient’s possession in documentary form at the time of disclosure by the Company;\n(d) the Recipient received from a third party who had the lawful right to disclose the Confidential Information and who did not\nobtain the Confidential Information under an obligation of confidentiality; or\n(e) is independently developed by the Recipient independent of any disclosure of Confidential Information hereunder.”\nInformation disclosed under this Agreement shall not be deemed to be within the foregoing exceptions merely because such\ninformation is embraced by more general information in the public domain or in the possession of the Recipient. In addition, any\ncombination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the\npublic domain or in the Recipient’s possession, but only if the combination itself and its principle of operation are in the public\ndomain or in the Recipient’s possession.\n3. Notwithstanding any other provision of this Agreement, disclosure of Confidential Information shall not be precluded if such\ndisclosure:\n(a) is in response to a valid order of a court or to another governmental body of the United States or any political subdivision\nthereof;\n(b) is required by law or regulation; or\n(c) is required by any stock exchange or similar regulatory or administrative body with jurisdiction over either party such as\nFINRA;\nprovided, however, that the Recipient shall give prompt written notice to the Company within a reasonable time prior to any such\nproposed disclosure to allow the Company to undertake efforts to obtain a protective order or confidentiality agreement, and in any\nevent such Confidential Information may be disclosed by the Recipient only to the extent required by such law or regulation or body\nand\n2\nmay be used only for purposes for which such order was issued or as required by such law or regulation or body.\n4. The Recipient shall maintain in trust and confidence all Confidential Information received from the Company and shall not use\nsuch Confidential Information for any unauthorized purpose or disclose such Confidential Information to any third party, except with\nthe specific prior written consent of the Company. Notwithstanding the prior sentence, the Company acknowledges and agrees\nEthicon may share the information with certain representatives (the “Representatives) of its affiliate companies and its parent\ncorporation as well as external advisors and consultants including its accountants, bankers, lawyers and consultants who have a\nneed to know it in order for the Recipient to complete its due diligence and evaluate fully the opportunity provided the Recipient\nshall be solely responsible for any breach of this Agreement by its Representatives. The Recipient and the Representatives may\nuse such Confidential Information only to the extent required for the purposes described herein. Confidential Information shall not\nbe used for any purpose or in any manner that would constitute a violation of any laws or regulations, including, without limitation,\nthe export control laws of the United States. No other rights or licenses to trademarks, inventions, copyrights, or patents are implied\nor granted under this Agreement.\n5. Confidential Information supplied shall not be reproduced in any form except as required to accomplish the purposes of this\nAgreement.\n6. All Confidential Information (including copies thereof) shall remain the property of the Company, and shall at the Recipient’s\noption either be returned to the Company or certified destroyed by an officer of the Recipient after the Recipient’s need for such\nConfidential Information to accomplish the purposes of this Agreement has expired, or within five (5) business days after a written\nrequest by the Company.\n7. This Agreement shall continue in full force and effect until terminated by either party as hereinafter provided this Agreement\nmay be terminated by either party at any time upon three (3) business days’ written notice to the other party. The termination of this\nAgreement shall not relieve the Recipient of the obligations imposed by this Agreement with respect to Confidential Information\ndisclosed prior to the effective date of such termination of this Agreement and the provisions of Paragraphs 3, 4, 8, 9, 11 through\n14, shall survive the termination of this Agreement for a period of twelve (12) months from such termination date.\n8. This Agreement shall be governed by the laws of the State of New York without regard to its conflicts of law provisions. Each\nparty hereby submits itself or himself for the sole purpose of this Agreement and any controversy arising hereunder to the exclusive\njurisdiction of the federal courts in the State of New York, and waives any objection (on the grounds of lack of jurisdiction, forum\n3\nnon conveniens or otherwise) to the exercise of such jurisdiction over it or him by any federal court in the State of New York.\n9. Both parties agree they shall not reveal and shall cause their advisors and bankers not to reveal the fact that Confidential\nInformation has been disclosed pursuant to this Agreement, nor that the Recipient is conducting, or has conducted, discussions or\nnegotiations in contemplation or furtherance of a business relationship including any specific terms or conditions or pricing\ndiscussions. It is understood that disclosure pursuant to this Agreement is not a public disclosure or sale or offer for sale of any\nproduct, but is made for the limited purposes relating to potential business activities stated herein.\n10. During such time as Confidential Information is being disclosed pursuant to this Agreement and the parties are conducting\ndiscussions or negotiations in contemplation or furtherance of a business relationship and for a period of eighteen (18) months\nthereafter, neither the Recipient nor any of its affiliates shall, without the prior written consent of the Company, directly or indirectly,\n(i) sell or contract to sell any of the Company’s securities held by the Recipient or any of its affiliates held by the Recipient or any of\nits affiliates to purchase any of the Company’s securities or (ii) grant any third party any option, right or warrant to purchase any of\nthe Company’s securities held by the Recipient or any of its affiliates, in any such case whether any such transaction above is to be\nsettled by delivery of the Company’s securities, in cash or otherwise\n11. The Company disclaims all warranties regarding the Confidential Information disclosed pursuant to this Agreement, including\nall warranties as to the accuracy, completeness or utility of the Confidential Information until such time as the parties enter into a\ndefinitive agreement or written instrument signed by both parties in connection with any strategic transaction.\n12. This Agreement contains the entire agreement of the parties and may not be changed, modified, amended or supplemented,\nexcept by a written instrument signed by both parties. The unenforceability of any provision of this Agreement shall not affect the\nenforceability of any other provision of this Agreement. Neither this Agreement nor the disclosure of any Confidential Information\npursuant to this Agreement shall restrict the Company from disclosing any of its Confidential Information to any third party.\n13. This Agreement shall not be assignable by the Recipient without the prior written consent of the Company; any such\npurported or attempted assignment of this Agreement or any right or benefit conferred upon the Recipient hereby shall be void and\nunenforceable.\n14. Each party hereby acknowledges and agrees that in the event of any breach of this Agreement, the Company shall be\nentitled to seek injunctive relief\n4\nas may be granted by a court of competent jurisdiction, in addition to any and all other rights and remedies as may be available\nunder applicable law.\n15. This Agreement may be delivered by facsimile and executed in counterparts, each of which shall be deemed an original, but\nall of which together shall constitute one and the same instrument.\n5\nIN WITNESS WHEREOF, each Party has caused this Nondisclosure Agreement to be signed by its duly authorized representative AS OF\nTHE FIRST DATE ABOVE:\nOmrix Biopharmaceuticals, Inc.\nEthicon, Inc.\nBy:\n/s/ Nanci Prado\nBy:\n/s/ Susan E. Morano\nName Nanci Prado\nName Susan E. Morano\nTitle Vice President General Counsel\nTitle Vice President, WW New\nBusiness Development	EX-99.E.3 3 y72866d9exv99wew3.htm EX-99.E.3: NONDISCLOSURE AGREEMENT\nExecution Copy\nExhibit (€)(3)\nNONDISCLOSURE AGREEMENT\nDisclosing Party: Omrix Biopharmaceuticals, Inc.\nRecipient: Ethicon, Inc.\nThis NONDISCLOSURE AGREEMENT (this “Agreement”) is made effective as of the 1st day of August, 2008, by and between\nOmrix Biopharmaceuticals, Inc. (the “Company”) and Ethicon, Inc. (the “Recipient”) to assure the protection and preservation of the\nconfidential and/or proprietary nature of information to be disclosed to the Recipient by the Company.\nWHEREAS, in order to pursue negotiations or discussions in contemplation or furtherance of a business relationship between\nthe parties or strategic transaction involving the parties, the Company has agreed to disclose and the Recipient has agreed to\nreceive certain data and other information which are of a proprietary and confidential nature (as defined in Paragraph 1 below and\nreferred to herein as “Confidential Information”). The Confidential Information will be used solely for the purpose of evaluating a\npotential business relationship between the parties or strategic transaction involving the parties and will not be used, directly or\nindirectly, for any other purpose, except as required under Paragraph 3 of this Agreement;\nWHEREAS, the Company acknowledges that it previously entered into various agreements with the Recipient that contain\nvarious confidentiality provisions related to the subject matter of those agreements and the Company acknowledges that this\nAgreement is not intended to affect or modify in any way any of those existing agreements or confidentiality provisions and that the\nCompany and the Recipient will continue their existing relationship and operate in the ordinary course of business while these\nnegotiations and discussions take place;\nNOW, THEREFORE, in reliance upon and in consideration of the following undertakings, and for other good and valuable\nconsideration, the receipt of which is hereby acknowledged, the parties to this Agreement hereby agree as follows:\n1. Subject to the limitations set forth in Paragraph 2, Confidential Information shall mean any proprietary and confidential\ninformation of the Company such as any, process, technique, compound, chemical structure, library, method of synthesis, program,\ndesign, drawing, formula, test data or other commercial or technical data or information relating to any research project, third party\nagreements, work in process, trade secret, proprietary right, actual or planned pre-clinical or clinical activity, development,\nengineering, manufacturing, marketing, servicing, financing or personnel matter relating to the Company, its present or future\ntechnology, products, customers, suppliers, employees, investors, business matters or business partners.\n2. The term “Confidential Information” shall not be deemed to include information which, to the extent that the Recipient can establish by competent proof: (@)\n(b)\n(e)\n(d)\n(e)\nat the time of disclosure is in the public domain;\nafter disclosure, becomes part of the public domain by publication or otherwise, except by breach of this Agreement by the\nRecipient;\nwas in the Recipient’'s possession in documentary form at the time of disclosure by the Company;\nthe Recipient received from a third party who had the lawful right to disclose the Confidential Information and who did not\nobtain the Confidential Information under an obligation of confidentiality; or\nis independently developed by the Recipient independent of any disclosure of Confidential Information hereunder.”\nInformation disclosed under this Agreement shall not be deemed to be within the foregoing exceptions merely because such information is embraced by more general information in the public domain or in the possession of the Recipient. In addition, any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the Recipient’s possession, but only if the combination itself and its principle of operation are in the public domain or in the Recipient’'s possession. 3. Notwithstanding any other provision of this Agreement, disclosure of Confidential Information shall not be precluded if such disclosure: (@)\n(b)\n()\nis in response to a valid order of a court or to another governmental body of the United States or any political subdivision\nthereof;\nis required by law or regulation; or\nis required by any stock exchange or similar regulatory or administrative body with jurisdiction over either party such as\nFINRA;\nprovided, however, that the Recipient shall give prompt written notice to the Company within a reasonable time prior to any such proposed disclosure to allow the Company to undertake efforts to obtain a protective order or confidentiality agreement, and in any event such Confidential Information may be disclosed by the Recipient only to the extent required by such law or regulation or body and\nmay be used only for purposes for which such order was issued or as required by such law or regulation or body.\n4. The Recipient shall maintain in trust and confidence all Confidential Information received from the Company and shall not use\nsuch Confidential Information for any unauthorized purpose or disclose such Confidential Information to any third party, except with\nthe specific prior written consent of the Company. Notwithstanding the prior sentence, the Company acknowledges and agrees\nEthicon may share the information with certain representatives (the “Representatives) of its affiliate companies and its parent\ncorporation as well as external advisors and consultants including its accountants, bankers, lawyers and consultants who have a\nneed to know it in order for the Recipient to complete its due diligence and evaluate fully the opportunity provided the Recipient\nshall be solely responsible for any breach of this Agreement by its Representatives. The Recipient and the Representatives may\nuse such Confidential Information only to the extent required for the purposes described herein. Confidential Information shall not\nbe used for any purpose or in any manner that would constitute a violation of any laws or regulations, including, without limitation,\nthe export control laws of the United States. No other rights or licenses to trademarks, inventions, copyrights, or patents are implied\nor granted under this Agreement.\n5. Confidential Information supplied shall not be reproduced in any form except as required to accomplish the purposes of this\nAgreement.\n6. All Confidential Information (including copies thereof) shall remain the property of the Company, and shall at the Recipient’s\noption either be returned to the Company or certified destroyed by an officer of the Recipient after the Recipient’s need for such\nConfidential Information to accomplish the purposes of this Agreement has expired, or within five (5) business days after a written\nrequest by the Company.\n7. This Agreement shall continue in full force and effect until terminated by either party as hereinafter provided this Agreement\nmay be terminated by either party at any time upon three (3) business days’ written notice to the other party. The termination of this\nAgreement shall not relieve the Recipient of the obligations imposed by this Agreement with respect to Confidential Information\ndisclosed prior to the effective date of such termination of this Agreement and the provisions of Paragraphs 3, 4, 8, 9, 11 through\n14, shall survive the termination of this Agreement for a period of twelve (12) months from such termination date.\n8. This Agreement shall be governed by the laws of the State of New York without regard to its conflicts of law provisions. Each\nparty hereby submits itself or himself for the sole purpose of this Agreement and any controversy arising hereunder to the exclusive\njurisdiction of the federal courts in the State of New York, and waives any objection (on the grounds of lack of jurisdiction, forum\n3\nnon conveniens or otherwise) to the exercise of such jurisdiction over it or him by any federal court in the State of New York.\n9. Both parties agree they shall not reveal and shall cause their advisors and bankers not to reveal the fact that Confidential\nInformation has been disclosed pursuant to this Agreement, nor that the Recipient is conducting, or has conducted, discussions or\nnegotiations in contemplation or furtherance of a business relationship including any specific terms or conditions or pricing\ndiscussions. It is understood that disclosure pursuant to this Agreement is not a public disclosure or sale or offer for sale of any\nproduct, but is made for the limited purposes relating to potential business activities stated herein.\n10. During such time as Confidential Information is being disclosed pursuant to this Agreement and the parties are conducting\ndiscussions or negotiations in contemplation or furtherance of a business relationship and for a period of eighteen (18) months\nthereafter, neither the Recipient nor any of its affiliates shall, without the prior written consent of the Company, directly or indirectly,\n(i) sell or contract to sell any of the Company’s securities held by the Recipient or any of its affiliates held by the Recipient or any of\nits affiliates to purchase any of the Company’s securities or (ii) grant any third party any option, right or warrant to purchase any of\nthe Company’s securities held by the Recipient or any of its affiliates, in any such case whether any such transaction above is to be\nsettled by delivery of the Company’s securities, in cash or otherwise\n11. The Company disclaims all warranties regarding the Confidential Information disclosed pursuant to this Agreement, including\nall warranties as to the accuracy, completeness or utility of the Confidential Information until such time as the parties enter into a\ndefinitive agreement or written instrument signed by both parties in connection with any strategic transaction.\n12. This Agreement contains the entire agreement of the parties and may not be changed, modified, amended or supplemented,\nexcept by a written instrument signed by both parties. The unenforceability of any provision of this Agreement shall not affect the\nenforceability of any other provision of this Agreement. Neither this Agreement nor the disclosure of any Confidential Information\npursuant to this Agreement shall restrict the Company from disclosing any of its Confidential Information to any third party.\n13. This Agreement shall not be assignable by the Recipient without the prior written consent of the Company; any such\npurported or attempted assignment of this Agreement or any right or benefit conferred upon the Recipient hereby shall be void and\nunenforceable.\n14. Each party hereby acknowledges and agrees that in the event of any breach of this Agreement, the Company shall be\nentitled to seek injunctive relief\nas may be granted by a court of competent jurisdiction, in addition to any and all other rights and remedies as may be available\nunder applicable law.\n15. This Agreement may be delivered by facsimile and executed in counterparts, each of which shall be deemed an original, but\nall of which together shall constitute one and the same instrument.\n5\nIN WITNESS WHEREOF, each Party has caused this Nondisclosure Agreement to be signed by its duly authorized representative AS OF\nTHE FIRST DATE ABOVE:\nOmrix Biopharmaceuticals, Inc. Ethicon, Inc.\nBy: /s/ Nanci Prado By: /s/ Susan E. Morano\nName Nanci Prado Name Susan E. Morano\nTitle Vice President General Counsel Title Vice President, WW New\nBusiness Development	EX-99.E.3 3 y72866d9exv99wew3.htm EX-99.E.3: NONDISCLOSURE AGREEMENT\nExecution Copy\nExhibit (e)(3)\nNONDISCLOSURE AGREEMENT\nDisclosing Party: Omrix Biopharmaceuticals, Inc.\nRecipient: Ethicon, Inc.\nThis NONDISCLOSURE AGREEMENT (this "Agreement") is made effective as of the 1st day of August, 2008, by and between\nOmrix Biopharmaceuticals, Inc. (the "Company.") and Ethicon, Inc. (the "Recipient") to assure the protection and preservation of the\nconfidential and/or proprietary nature of information to be disclosed to the Recipient by the Company.\nWHEREAS, in order to pursue negotiations or discussions in contemplation or furtherance of a business relationship between\nthe parties or strategic transaction involving the parties, the Company has agreed to disclose and the Recipient has agreed to\nreceive certain data and other information which are of a proprietary and confidential nature (as defined in Paragraph 1 below and\nreferred to herein as "Confidential Information"). The Confidential Information will be used solely for the purpose of evaluating\na\npotential business relationship between the parties or strategic transaction involving the parties and will not be used, directly or\nindirectly, for any other purpose, except as required under Paragraph 3 of this Agreement;\nWHEREAS, the Company acknowledges that it previously entered into various agreements with the Recipient that contain\nvarious confidentiality provisions related to the subject matter of those agreements and the Company acknowledges that this\nAgreement is not intended to affect or modify in any way any of those existing agreements or confidentiality provisions and that the\nCompany and the Recipient will continue their existing relationship and operate in the ordinary course of business while these\nnegotiations and discussions take place;\nNOW, THEREFORE, in reliance upon and in consideration of the following undertakings, and for other good and valuable\nconsideration, the receipt of which is hereby acknowledged, the parties to this Agreement hereby agree as follows:\n1. Subject to the limitations set forth in Paragraph 2, Confidential Information shall mean any proprietary and confidentia\ninformation of the Company such as any, process, technique, compound, chemical structure, library, method of synthesis, program,\ndesign, drawing, formula, test data or other commercial or technical data or information relating to any research project, third party\nagreements, work in process, trade secret, proprietary right, actual or planned pre-clinical or clinical activity, development,\nengineering, manufacturing, marketing, servicing, financing or personnel matter relating to the Company, its present or future\ntechnology, products, customers, suppliers, employees, investors, business matters or business partners.\n2. The term "Confidential Information" shall not be deemed to include information which, to the extent that the Recipient can\nestablish by competent proof:\n(a) at the time of disclosure is in the public domain;\n(b) after disclosure, becomes part of the public domain by publication or otherwise, except by breach of this Agreement by the\nRecipient;\n(e) was in the Recipient's possession in documentary form at the time of disclosure by the Company;\n(d) the Recipient received from a third party who had the lawful right to disclose the Confidential Information and who did not\nobtain the Confidential Information under an obligation of confidentiality; or\n(e) is independently developed by the Recipient independent of any disclosure of Confidential Information hereunder."\nInformation disclosed under this Agreement shall not be deemed to be within the foregoing exceptions merely because such\ninformation is embraced by more general information in the public domain or in the possession of the Recipient. In addition, any\ncombination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the\npublic domain or in the Recipient's possession, but only if the combination itself and its principle of operation are in the public\ndomain or in the Recipient's possession.\n3. Notwithstanding any other provision of this Agreement, disclosure of Confidential Information shall not be precluded if such\ndisclosure:\n(a)\nis in response to a valid order of a court or to another governmental body of the United States or any political subdivision\nthereof;\n(b) is required by law or regulation; or\n(c) is required by any stock exchange or similar regulatory or administrative body with jurisdiction over either party such as\nFINRA;\nprovided, however, that the Recipient shall give prompt written notice to the Company within a reasonable time prior to any such\nproposed disclosure to allow the Company to undertake efforts to obtain a protective order or confidentiality agreement and in any\nevent such Confidential Information may be disclosed by the Recipient only to the extent required by such law or regulation or body\nand\n2\nmay be used only for purposes for which such order was issued or as required by such law or regulation or body.\n4. The Recipient shall maintain in trust and confidence all Confidentia Information received from the Company and shall not use\nsuch Confidential Information for any unauthorized purpose or disclose such Confidential Information to any third party, except with\nthe specific prior written consent of the Company. Notwithstanding the prior sentence, the Company acknowledges and agrees\nEthicon may share the information with certain representatives (the "Representatives) of its affiliate companies and its parent\ncorporation as well as external advisors and consultants including its accountants, bankers, lawyers and consultants who have\na\nneed to know it in order for the Recipient to complete its due diligence and evaluate fully the opportunity provided the Recipient\nshall be solely responsible for any breach of this Agreement by its Representatives. The Recipient and the Representatives may\nuse such Confidential Information only to the extent required for the purposes described herein. Confidential Information shall not\nbe used for any purpose or in any manner that would constitute a violation of any laws or regulations, including, without limitation,\nthe export control laws of the United States. No other rights or licenses to trademarks, inventions, copyrights, or patents are implied\nor granted under this Agreement.\n5. Confidential Information supplied shall not be reproduced in any form except as required to accomplish the purposes of this\nAgreement.\n6. All Confidential Information (including copies thereof) shall remain the property of the Company, and shall at the Recipient's\noption either be returned to the Company or certified destroyed by an officer of the Recipient after the Recipient's need for such\nConfidential Information to accomplish the purposes of this Agreement has expired, or within five (5) business days after a written\nrequest by the Company.\n7. This Agreement shall continue in full force and effect until terminated by either party as hereinafter provided this Agreement\nmay be terminated by either party at any time upon three (3) business days' written notice to the other party. The termination of\nthis\nAgreement shall not relieve the Recipient of the obligations imposed by this Agreement with respect to Confidential Information\ndisclosed prior to the effective date of such termination of this Agreement and the provisions of Paragraphs 3, 4, 8, 9, 11 through\n14, shall survive the termination of this Agreement for a period of twelve (12) months from such termination date.\n8. This Agreement shall be governed by the laws of the State of New York without regard to its conflicts of law provisions. Each\nparty hereby submits itself or himself for the sole purpose of this Agreement and any controversy arising hereunder to the exclusive\njurisdiction of the federal courts in the State of New York, and waives any objection (on the grounds of lack of jurisdiction,\nforum\n3\nnon conveniens or otherwise) to the exercise of such jurisdiction over it or him by any federal court in the State of New York.\n9. Both parties agree they shall not reveal and shall cause their advisors and bankers not to reveal the fact that Confidentia\nInformation has been disclosed pursuant to this Agreement, nor that the Recipient is conducting, or has conducted, discussions or\nnegotiations in contemplation or furtherance of a business relationship including any specific terms or conditions or pricing\ndiscussions. It is understood that disclosure pursuant to this Agreement is not a public disclosure or sale or offer for sale of any\nproduct, but is made for the limited purposes relating to potential business activities stated herein.\n10. During such time as Confidential Information is being disclosed pursuant to this Agreement and the parties are conducting\ndiscussions or negotiations in contemplation or furtherance of a business relationship and for a period of eighteen (18) months\nthereafter, neither the Recipient nor any of its affiliates shall, without the prior written consent of the Company, directly or indirectly,\n(i) sell or contract to sell any of the Company's securities held by the Recipient or any of its affiliates held by the Recipient or any of\nits\naffiliates\nto purchase any of the Company's securities or (ii) grant any third party any option, right or warrant to purchase any\nof\nthe Company's securities held by the Recipient or any of its affiliates, in any such case whether any such transaction above is to be\nsettled by delivery of the Company's securities, in cash or otherwise\n11. The Company disclaims all warranties regarding the Confidential Information disclosed pursuant to this Agreement, including\nall warranties as to the accuracy, completeness or utility of the Confidential Information until such time as the parties enter into a\ndefinitive agreement or written instrument signed by both parties in connection with any strategic transaction.\n12. This Agreement contains the entire agreement of the parties and may not be changed, modified, amended or supplemented,\nexcept by a written instrument signed by both parties. The unenforceability of any provision of this Agreement shall not affect the\nenforceability of any other provision of this Agreement. Neither this Agreement nor the disclosure of any Confidential Information\npursuant to this Agreement shall restrict the Company from disclosing any of its Confidential Information to any third party.\n13. This Agreement shall not be assignable by the Recipient without the prior written consent of the Company; any such\npurported or attempted assignment of this Agreement or any right or benefit conferred upon the Recipient hereby shall be void and\nunenforceable.\n14. Each party hereby acknowledges and agrees that in the event of any breach of this Agreement, the Company shall be\nentitled to seek injunctive relief\n4\nas may be granted by a court of competent jurisdiction in addition to any and all other rights and remedies as may be available\nunder applicable law.\n15. This Agreement may be delivered by facsimile and executed in counterparts, each of which shall be deemed an original, but\nall of which together shall constitute one and the same instrument.\n5\nIN WITNESS WHEREOF, each Party has caused this Nondisclosure Agreement to be signed by its duly authorized representative AS OF\nTHE FIRST DATE ABOVE:\nOmrix Biopharmaceuticals, Inc.\nEthicon, Inc.\nBy:\n/s/ Nanci Prado\nBy:\n/s/ Susan E. Morano\nName\nNanci Prado\nName\nSusan E. Morano\nTitle\nVice President General Counsel\nTitle\nVice President, WW New\nBusiness Development	EX-99.E .3 3 y72866d9exv99wew3.htm EX-99.E.3: NONDISCLOSURE AGREEMENT\nExecution Copy\nExhibit (e)(3)\nNONDISCLOSURE AGREEMENT\nDisclosing Party: Omrix Biopharmaceuticals, Inc.\nRecipient: Ethicon, Inc.\nThis NONDISCLOSURE AGREEMENT (this “Agreement”) is made effective as of the 1st day of August, 2008, by and between\nOmrix Biopharmaceuticals, Inc. (the “Company”) and Ethicon, Inc. (the “Recipient”) to assure the protection and preservation of the\nconfidential and/or proprietary nature of information to be disclosed to the Recipient by the Company.\nWHEREAS, in order to pursue negotiations or discussions in contemplation or furtherance of a business relationship between\nthe parties or strategic transaction involving the parties, the Company has agreed to disclose and the Recipient has agreed to\nreceive certain data and other information which are of a proprietary and confidential nature (as defined in Paragraph 1 below and\nreferred to herein as “Confidential Information”). The Confidential Information will be used solely for the purpose of evaluating a\npotential business relationship between the parties or strategic transaction involving the parties and will not be used, directly or\nindirectly, for any other purpose, except as required under Paragraph 3 of this Agreement;\nWHEREAS, the Company acknowledges that it previously entered into various agreements with the Recipient that contain\nvarious confidentiality provisions related to the subject matter of those agreements and the Company acknowledges that this\nAgreement is not intended to affect or modify in any way any of those existing agreements or confidentiality provisions and that the\nCompany and the Recipient will continue their existing relationship and operate in the ordinary course of business while these\nnegotiations and discussions take place;\nNOW, THEREFORE, in reliance upon and in consideration of the following undertakings, and for other good and valuable\nconsideration, the receipt of which is hereby acknowledged, the parties to this Agreement hereby agree as follows:\n1. Subject to the limitations set forth in Paragraph 2, Confidential Information shall mean any proprietary and confidential\ninformation of the Company such as any, process, technique, compound, chemical structure, library, method of synthesis, program,\ndesign, drawing, formula, test data or other commercial or technical data or information relating to any research project, third party\nagreements, work in process, trade secret, proprietary right, actual or planned pre-clinical or clinical activity, development,\nengineering, manufacturing, marketing, servicing, financing or personnel matter relating to the Company, its present or future\ntechnology, products, customers, suppliers, employees, investors, business matters or business partners.\n2. The term “Confidential Information” shall not be deemed to include information which, to the extent that the Recipient can\nestablish by competent proof:\n(a) at the time of disclosure is in the public domain;\n(b) after disclosure, becomes part of the public domain by publication or otherwise, except by breach of this Agreement by the\nRecipient;\n(e) was in the Recipient’s possession in documentary form at the time of disclosure by the Company;\n(d) the Recipient received from a third party who had the lawful right to disclose the Confidential Information and who did not\nobtain the Confidential Information under an obligation of confidentiality; or\n(e) is independently developed by the Recipient independent of any disclosure of Confidential Information hereunder.”\nInformation disclosed under this Agreement shall not be deemed to be within the foregoing exceptions merely because such\ninformation is embraced by more general information in the public domain or in the possession of the Recipient. In addition, any\ncombination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the\npublic domain or in the Recipient’s possession, but only if the combination itself and its principle of operation are in the public\ndomain or in the Recipient’s possession.\n3. Notwithstanding any other provision of this Agreement, disclosure of Confidential Information shall not be precluded if such\ndisclosure:\n(a) is in response to a valid order of a court or to another governmental body of the United States or any political subdivision\nthereof;\n(b) is required by law or regulation; or\n(c) is required by any stock exchange or similar regulatory or administrative body with jurisdiction over either party such as\nFINRA;\nprovided, however, that the Recipient shall give prompt written notice to the Company within a reasonable time prior to any such\nproposed disclosure to allow the Company to undertake efforts to obtain a protective order or confidentiality agreement, and in any\nevent such Confidential Information may be disclosed by the Recipient only to the extent required by such law or regulation or body\nand\n2\nmay be used only for purposes for which such order was issued or as required by such law or regulation or body.\n4. The Recipient shall maintain in trust and confidence all Confidential Information received from the Company and shall not use\nsuch Confidential Information for any unauthorized purpose or disclose such Confidential Information to any third party, except with\nthe specific prior written consent of the Company. Notwithstanding the prior sentence, the Company acknowledges and agrees\nEthicon may share the information with certain representatives (the “Representatives) of its affiliate companies and its parent\ncorporation as well as external advisors and consultants including its accountants, bankers, lawyers and consultants who have a\nneed to know it in order for the Recipient to complete its due diligence and evaluate fully the opportunity provided the Recipient\nshall be solely responsible for any breach of this Agreement by its Representatives. The Recipient and the Representatives may\nuse such Confidential Information only to the extent required for the purposes described herein. Confidential Information shall not\nbe used for any purpose or in any manner that would constitute a violation of any laws or regulations, including, without limitation,\nthe export control laws of the United States. No other rights or licenses to trademarks, inventions, copyrights, or patents are implied\nor granted under this Agreement.\n5. Confidential Information supplied shall not be reproduced in any form except as required to accomplish the purposes of this\nAgreement.\n6. All Confidential Information (including copies thereof) shall remain the property of the Company, and shall at the Recipient’s\noption either be returned to the Company or certified destroyed by an officer of the Recipient after the Recipient’s need for such\nConfidential Information to accomplish the purposes of this Agreement has expired, or within five (5) business days after a written\nrequest by the Company.\n7. This Agreement shall continue in full force and effect until terminated by either party as hereinafter provided this Agreement\nmay be terminated by either party at any time upon three (3) business days’ written notice to the other party. The termination of this\nAgreement shall not relieve the Recipient of the obligations imposed by this Agreement with respect to Confidential Information\ndisclosed prior to the effective date of such termination of this Agreement and the provisions of Paragraphs 3, 4, 8, 9, 11 through\n14, shall survive the termination of this Agreement for a period of twelve (12) months from such termination date.\n8. This Agreement shall be governed by the laws of the State of New York without regard to its conflicts of law provisions. Each\nparty hereby submits itself or himself for the sole purpose of this Agreement and any controversy arising hereunder to the exclusive\njurisdiction of the federal courts in the State of New York, and waives any objection (on the grounds of lack of jurisdiction, forum\n3\nnon conveniens or otherwise) to the exercise of such jurisdiction over it or him by any federal court in the State of New York.\n9. Both parties agree they shall not reveal and shall cause their advisors and bankers not to reveal the fact that Confidential\nInformation has been disclosed pursuant to this Agreement, nor that the Recipient is conducting, or has conducted, discussions or\nnegotiations in contemplation or furtherance of a business relationship including any specific terms or conditions or pricing\ndiscussions. It is understood that disclosure pursuant to this Agreement is not a public disclosure or sale or offer for sale of any\nproduct, but is made for the limited purposes relating to potential business activities stated herein.\n10. During such time as Confidential Information is being disclosed pursuant to this Agreement and the parties are conducting\ndiscussions or negotiations in contemplation or furtherance of a business relationship and for a period of eighteen (18) months\nthereafter, neither the Recipient nor any of its affiliates shall, without the prior written consent of the Company, directly or indirectly,\n(i) sell or contract to sell any of the Company’s securities held by the Recipient or any of its affiliates held by the Recipient or any of\nits affiliates to purchase any of the Company’s securities or (ii) grant any third party any option, right or warrant to purchase any of\nthe Company’s securities held by the Recipient or any of its affiliates, in any such case whether any such transaction above is to be\nsettled by delivery of the Company’s securities, in cash or otherwise\n11. The Company disclaims all warranties regarding the Confidential Information disclosed pursuant to this Agreement, including\nall warranties as to the accuracy, completeness or utility of the Confidential Information until such time as the parties enter into a\ndefinitive agreement or written instrument signed by both parties in connection with any strategic transaction.\n12. This Agreement contains the entire agreement of the parties and may not be changed, modified, amended or supplemented,\nexcept by a written instrument signed by both parties. The unenforceability of any provision of this Agreement shall not affect the\nenforceability of any other provision of this Agreement. Neither this Agreement nor the disclosure of any Confidential Information\npursuant to this Agreement shall restrict the Company from disclosing any of its Confidential Information to any third party.\n13. This Agreement shall not be assignable by the Recipient without the prior written consent of the Company; any such\npurported or attempted assignment of this Agreement or any right or benefit conferred upon the Recipient hereby shall be void and\nunenforceable.\n14. Each party hereby acknowledges and agrees that in the event of any breach of this Agreement, the Company shall be\nentitled to seek injunctive relief\n4\nas may be granted by a court of competent jurisdiction, in addition to any and all other rights and remedies as may be available\nunder applicable law.\n15. This Agreement may be delivered by facsimile and executed in counterparts, each of which shall be deemed an original, but\nall of which together shall constitute one and the same instrument.\n5\nIN WITNESS WHEREOF, each Party has caused this Nondisclosure Agreement to be signed by its duly authorized representative AS OF\nTHE FIRST DATE ABOVE:\nOmrix Biopharmaceuticals, Inc.\nEthicon, Inc.\nBy:\n/s/ Nanci Prado\nBy:\n/s/ Susan E. Morano\nName Nanci Prado\nName Susan E. Morano\nTitle Vice President General Counsel\nTitle Vice President, WW New\nBusiness Development
+cdb615d6774f4ea7032768d5bcf02ee2.pdf	effective_date jurisdiction party term	EX-10.1 2 dex101.htm EMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nEXHIBIT 10.1\nEmployment and Confidentiality Agreement\nThis Employment and Confidentiality Agreement (the “Agreement”) is made between First Bank of Beverly Hills (the “Bank”), a state chartered\nbank, and Joseph W. Kiley, III (the “Employee”). The Bank is an affiliate of Beverly Hills Bancorp, Inc. a Delaware corporation (the “Company”).\nAccordingly, on the basis of the representations, warranties, and covenants contained in this Agreement, the parties agree as follows effective as of\nJanuary 1, 2006 (the “Effective Date”):\n1. ARTICLE 1 – EMPLOYMENT AND TERM\n1.1. The Bank earlier notified Employee that it was not renewing Employee’s employment under the terms of the Employment,\nConfidentiality and Contingent Severance Agreement dated January 1, 2003 (the “Severance Agreement”). Accordingly, Employee’s\nemployment pursuant to that Severance Agreement will expire December 31, 2005. Notwithstanding the fact that the Bank and\nEmployee are entering into a new employment relationship pursuant to this Agreement, the pay and benefits Employee is to receive\nunder the terms of the Severance Agreement pursuant to Section 4.2(b) and (c) thereof shall not be impacted or otherwise affected by\nEmployee’s entering into this Agreement with the Bank and Employee shall begin to receive the pay and benefits outlined in the\nSeverance Agreement as a result of the Bank’s non-renewal of the Severance Agreement commencing on January 1, 2006. Likewise,\nEmployee’s entitlement to receive the 2004 continuous service bonus payments pursuant to the Amended 2004 Annual Incentive Award\nPlan is not altered by this Agreement and thus payable on January 1, 2006.\n1.2. Term. The term of employment under this Agreement shall commence on the Effective Date, and shall continue for a period of twelve\n(12) months thereafter. Either the Bank or Employee may terminate the employment relationship under this Agreement at any time, with\nor without reason, upon thirty (30) days notice to the other. If the Bank provides thirty (30) days notice to terminate the employment\nrelationship, then it will have no further obligation to pay Employee his salary through the remainder of the term of this Agreement. The\nBank may, at its option, offer to continue the employment relationship under this Agreement for an additional 6 month term, upon\nwritten notice to Employee.\n2. ARTICLE 2 – DUTIES OF THE EMPLOYEE\n2.1. Position and Duties. The Bank will employ the Employee as its President and Chief Executive Officer, and Employee accepts such\nemployment, on the terms and conditions set forth in this Agreement. Employee will undertake and\nPage 1\nperform all duties as required of the position. Employee will render such services and perform such duties and acts in connection with\nany aspect of the Bank’s business as may be lawfully required by the management or the Board of Directors of the Bank. Employee shall\nperform the services contemplated herein faithfully, diligently, to the best of Employee’s ability, and in the best interests of the Bank.\nEmployee will also devote his full and exclusive business time and efforts in rendering such services and to the extent of his authority\nwill endeavor to ensure that the Bank is in compliance with all laws, rules, regulations and policies applicable to the Bank. The\nEmployee shall, at all times, adhere to and obey any and all written internal rules and regulations governing the conduct of the Bank’s\nemployees as established and modified from time to time.\n2.2. Exclusive Services. During his employment by the Bank, the Employee shall not, without the express prior written consent of the Board\nof Directors of the Bank, engage directly or indirectly in any outside employment or consulting of any kind, whether or not the\nEmployee receives remuneration for such services. Further, the Employee shall not engage in any activity that would impair the\nEmployee’s ability to act and exercise judgment in the best interest of the Bank.\n2.3. Subpoenas; Cooperation in Defense of the Bank. If the Employee, during employment or thereafter, is served with any subpoena or other\ncompulsory judicial or administrative process calling for production of confidential information or if the Employee is otherwise required\nby law or regulations to disclose confidential information, the Employee will immediately, before making any such production or\ndisclosure, notify the Bank and provide it with such information as may be necessary for the Bank to take such action as the Bank deems\nnecessary to protect its interests. The Employee agrees to cooperate reasonably with the Bank, whether during employment or thereafter,\nin the prosecution or defense of all threatened claims or actual litigation in which the Bank is or may become a party, whether now\npending or hereafter brought, in which the Employee has knowledge of relevant facts or issues. The Employee shall be reimbursed for\nreasonable expenses for travel time due to cooperating with the prosecution or defense of any litigation for the Bank.\n2.4. Other Obligations. The Employee acknowledges that the Bank from time to time may have agreements with other persons or with\nvarious governmental agencies that impose obligations or restrictions on the Bank regarding inventions or creative works made during\nthe course of the Bank’s work under such agreements, or that relate to the confidential nature of such work. The Employee agrees to be\nbound by all such obligations and restrictions of which the Employee is informed by the Bank and to take all action necessary to\ndischarge the obligations of the Bank thereunder.\nPage 2\n3. ARTICLE 3 – COMPENSATION\n3.1. Base Salary. Employee will receive a base salary of $275,000.00 per year, less applicable withholdings. This salary shall be payable\nsemi-monthly in accordance with the Bank’s regular payroll practices.\n3.2. Bank Employee Benefits. Employee will be entitled to participate in the Bank’s employee benefit plans, including the Amended 2004\nAnnual Incentive Award Plan or its successor, 401(k) savings plan, medical, dental, vision, long-term disability, and short term disability\nbenefits or insurance programs on the same basis as any of those benefits or insurance programs are available generally to other officers\nof similar position under the Bank’s then current personnel policies. The Bank and the Company will not, without Employee’s written\nconsent, make any changes in Employee’s rights or benefits thereunder, except to the extent such changes are made applicable to all\nexecutive-level Bank and Company employees on a non-discriminatory basis. The Bank’s obligations to continue coverage of these\nbenefits under Section 4.2(c) of the above-referenced Severance Agreement will be suspended during the period of time Employee\ncontinues his employment pursuant to this Agreement. Upon the termination of Employee’s employment pursuant to this Agreement, the\nBank’s obligations under Section 4.2(c) of the Severance Agreement will commence and continue under the provisions stated therein.\n3.3. Vacation. Employee will be eligible to earn vacation time at a rate of 13.33 hours per month up to a total of 160 hours in the calendar\nyear. Vacation time not used in any calendar year may be carried forward, provided, however, that, once the Employee has accrued 200\nhours, Employee shall not be eligible to accrue additional vacation time until he has taken one or more days of vacation.\n3.4. Reimbursement for Expenses. To the extent Employee incurs necessary and reasonable business expenses in the course of his\nemployment, the Bank will reimburse Employee for such expenses, subject to the Bank’s then current policies regarding reimbursement\nof such business expenses.\n3.5. Indemnity and Insurance. Employee shall receive all benefits and privileges to which the Employee is entitled by law or pursuant to the\nBylaws of the Bank or the Company.\n3.6. 2005 Bonus Payment. Employee will be eligible to receive a 2005 bonus in the amount of $175,000.00 pursuant to the Amended 2004\nAnnual Incentive Award Plan approved by the Board on February 4, 2005. Said bonus payment will be made to Employee on or before\nMarch 15, 2006.\n3.7. Continuous Service Bonus Eligibility. Employee will be eligible to receive a continuous service bonus in the amount of $75,000.00 if\nEmployee remains employed through June 30, 2006. If the Bank terminates Employee’s employment pursuant to this Agreement at any\ntime prior to June 30, 2006, Employee will remain eligible to receive this continuous service bonus payment. Should Employee\nterminate his employment relationship with the Bank prior to\nPage 3\nJune 30, 2006, Employee will forfeit his eligibility for the continuous service bonus payment. If Employee is terminated for “cause” as\ndefined in Section 4.1 of this Agreement prior to June 30, 2006, then Employee is not entitled to and forfeits his eligibility for the\ncontinuous service bonus set forth in this Section 3.7. If Employee remains employed with the Bank after June 30, 2006, then, at the\nBank’s Board of Directors’ sole discretion, Employee may be provided a Bonus Opportunity in addition to the bonus mentioned in this\nSection 3.7 as provided in Section 3.2 .\n4. ARTICLE 4 – TERMINATION FOR CAUSE\n4.1 Termination for Cause. Termination for cause shall mean termination because of Employee’s incompetence, personal dishonesty, willful\nmisconduct, any breach of fiduciary duty involving personal profit, habitual neglect of duties, intentional failure to perform stated duties,\nwillful violation of any material law, rule or regulation, order or material breach of any employment policy of the Bank or any material\nbreach of any provision of this Agreement. Written notice delivered to Employee is a prerequisite to Termination for Cause and such\ntermination shall be effective on the delivery date of the written notice. Employee shall have the right to receive compensation or other\nbenefits which have already vested or been earned as of the date of notice of Termination for Cause, unless expressly prohibited by the\nterms of any plan, program or agreement governing such compensation or benefits. Employee shall receive no other compensation or\nseverance pay in the event of Termination for Cause.\n5. ARTICLE 5 – CONFIDENTIALITY AND NON-SOLICITATION\n5.1. Non-disclosure of Confidential and Trade Secret Information. Employee acknowledges that, in the course of employment with the Bank,\nEmployee will have access to and learn confidential information. Confidential information includes but is not limited to information\nabout the Bank’s borrowers and clients, the terms and conditions under which the Bank or its affiliates deal with borrowers and clients,\npricing information for the purchase or sale of assets, financing and securitization arrangements, research materials, manuals, computer\nprograms, formulas analyzing assets portfolios, techniques, data, marketing plans and tactics, technical information, lists of asset\nsources, the processes and practices of the Bank and related companies, information contained in electronic or computer files, financial\ninformation, salary and wage information, and other information that is designated by the Bank or its affiliates as confidential or that\nEmployee knows or should know is confidential information provided by third parties that the Bank or its affiliates are obligated to keep\nconfidential and all other proprietary information of the Bank or its affiliates. Employee acknowledges that all confidential information is\nand shall continue to be the exclusive property of the Bank or its affiliates, whether or not prepared in whole or in part by the Employee\nand whether or not disclosed to or entrusted to the Employee in connection with employment by the Bank. Employee agrees not to\nPage 4\ndisclose confidential information, directly or indirectly, under any circumstances or by any means, to any third persons without the prior\nwritten consent of the Bank. Employee agrees that he will not copy, transmit, reproduce, summarize, quote, or make any commercial or\nother use whatsoever of confidential information, except as may be necessary to perform work done by Employee for the Bank.\nEmployee agrees to exercise the highest degree of care in safeguarding confidential information against loss, theft or other inadvertent\ndisclosure and agrees generally to take all steps necessary or requested by the Bank to ensure maintenance of the confidentiality of the\nconfidential information. Employee agrees in addition to the specific covenants contained herein to comply with all of the Bank’s\npolicies and procedures, as well as all applicable laws, for the protection of confidential information.\n5.2. Exclusions. Section 5.1 shall not apply to the following information: (a) information now or hereafter voluntarily disseminated by the\nBank to the public or which otherwise becomes part of the public domain through lawful means; (b) information already known to the\nEmployee as documented by written records which predate Employee’s employment with the Bank; (c) information subsequently and\nrightfully received from third parties and not subject to any obligation of confidentiality; or (d) information independently developed by\nEmployee after termination of his employment.\n5.3. Confidential Proprietary and Trade Secret Information of Others. Employee represents that he has disclosed to the Bank any agreement\nto which Employee is or has been a party regarding the confidential information of others and Employee understands that Employee’s\nemployment by the Bank will not require Employee to breach any such agreement. Employee will not disclose such confidential\ninformation to the Bank nor induce the Bank to use any trade secret proprietary information received from another under an agreement\nor understanding prohibiting such use or disclosure.\n5.4. Non-solicitation of Employees. During the period of twelve (12) months after termination of this Agreement, Employee shall not directly\nor indirectly solicit for employment or for independent contractor work any employee of the Bank or the Company, and shall not\nencourage any such employee to leave the employment of the Bank or the Company.\n5.5. Company to Benefit from Provisions. To the extent any provisions of this Article 5 relates in any way to confidential information and\ntrade secrets of the Company, then the obligations of Employee set forth in this Article 5 shall also extend to the Company and inure to\nits benefit.\n6. ARTICLE 6 – BANK’S OWNERSHIP IN EMPLOYEE’S WORK\n6.1. Bank’s Ownership. The Employee agrees that all inventions, discoveries, improvements, trade secrets, formulas, techniques, mask\nworks, processes, and\nPage 5\nknow-how, whether or not patentable, and whether or not reduced to practice, that are conceived or developed during the Employee’s\nemployment with the Bank, either alone or jointly with others, or relating to the Bank or to the banking industry shall be owned\nexclusively by the Bank, and the Employee hereby assigns to the Bank all Employee’s right, title, and interest in all such intellectual\nproperty. The Employee agrees that the Bank shall be the sole owner of all rights pertaining thereto, including but not limited to domestic\nand foreign patents or other rights pertaining thereto, and further agrees to execute all documents that the Bank reasonably determines to\nbe necessary or convenient for use in applying for, prosecuting, perfecting, or enforcing patents or other intellectual property rights,\nincluding the execution of any assignments, patents applications, or other documents that Bank may reasonably request. The Employee\nshall claim no interest in any inventions, copyrighted material, mask works, patents, or patent applications unless the Employee\ndemonstrates that any such invention, copyrighted material, mask, work, patent, or patent application was developed before he began any\nemployment with the Bank. This provision is intended to apply only to the extent permitted by applicable law.\n6.2. Statutory Limitation on Assignment. The Employee understands that the Bank is hereby advising the Employee that any provision in this\nAgreement requiring the Employee to assign rights in any invention does not apply to an invention that qualifies fully under the\nprovisions of Section 2870 of the California Labor Code. That Section provides, as follows:\n(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her\nrights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her\nown time without using the employer’s equipment, supplies, facilities, or trade secret information, except for those inventions that\neither:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or\ndemonstrably anticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded\nfrom being required to be assigned under subdivision (a), the provision is against the public policy of this state and is\nunenforceable.\nBy signing this Agreement, the Employee acknowledges that this paragraph shall constitute written notice of the provisions of\nSection 2870.\nPage 6\n6.3 Ownership of Records. Any written record that the Employee may maintain of inventions, discoveries, improvements, trade secrets,\nformulae, processes, or know-how, whether or not patentable and whether or not reduced to practice, and any such records relating to\noriginal works of authorship or mask works made by the Employee, alone or jointly with others, in the course of the Employee’s\nemployment with the Bank shall remain the property of the Bank. The Employee shall furnish the Bank any and all such records\nimmediately upon request.\n6.4 Ownership of Records. If the Employee, during employment with the Bank, is engaged in or associated with the planning or\nimplementation of any project, program, or venture involving the Bank and any third parties, all rights in the project, program, or venture\nshall belong to the Bank, and the Employee shall not be entitled to any interest therein or to any commission, finder’s fee, or other\ncompensation in connection therewith other than the salary to be paid to the Employee as provided in this Agreement.\n6.5 Return of Bank’s Property and Materials. Upon termination of employment with the Bank, Employee shall deliver to the Bank all Bank\nproperty and materials that are in the Employee’s possession or control, including all of the information described as confidential\ninformation in Article 5 of this Agreement and including all other information relating to any inventions, discoveries, improvements,\ntrade secrets, formulae, processes, know-how, original works of authorship, or mask works of the Bank.\n6.6 Company to Benefit from Provisions. To the extent any provisions of this Article 6 relates in any way to information, property, rights,\nprojects, ventures, or inventions of the Company, then the obligations of Employee set forth in this Article 6 shall also extend to the\nCompany and inure to its benefit.\n7. ARTICLE 7 – DISPUTE RESOLUTION AGREEMENT\n7.1 In the event of any dispute, claim or controversy between the Bank and Employee, both parties agree to initially submit such dispute,\nclaim or controversy to non-binding mediation, by a mediator mutually agreed upon by the Bank and Employee. The disputes, claims\nand controversies to be submitted to mediation include, but are not limited to, claims arising from the California Constitution; Title VII\nof the Civil Rights Act of 1964 (42 U.S .C. §2000e); the California Fair Employment and Housing Act (Cal.Govt. Code §12900 et seq.);\nthe Americans with Disabilities Act; the Age Discrimination in Employment Act (29 U.S .C. §§ 621-633a); the Older Workers’ Benefit\nProtection Act; and claims of intentional infliction of emotional distress; breach of contract including but not limited to this Agreement;\nbreach of implied contract; or any other statute or common law principle of similar effect.\n7.2 Either party may commence the non-binding mediation process called for in this Dispute Resolution Agreement by providing written\nnotice upon the\nPage 7\nother party as set forth in paragraph 8.10 of this Agreement. The parties will then agree to submit the claim to a mediator mutually\nagreed upon by the Bank and Employee. The parties will cooperate with one another and with the non-binding mediator, in selecting a\nmediator, and in scheduling the mediation.\n7.3 The Bank shall pay all of the fees and costs of the non-binding mediation and will pay for its own attorney’s fees and will not request any\nfees or costs from the Employee. Should the Employee retain legal counsel, the cost of such legal counsel shall be the sole responsibility\nof the Employee.\n7.4 If the parties fail to resolve their dispute, claim or controversy in non-binding mediation as set forth in paragraphs 7.1-7.3, above, then\nthe Bank and Employee agree to submit such dispute, claim or controversy to final and binding arbitration, by an arbitrator or association\nmutually agreed upon by the Bank and Employee. The disputes, claims and controversies to be submitted to arbitration include, but are\nnot limited to, claims arising from the California Constitution; Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e); the\nCalifornia Fair Employment and Housing Act (Cal.Govt. Code §12900 et seq.); the Americans with Disabilities Act; the Age\nDiscrimination in Employment Act (29 U.S.C. §§ 621-633a); the Older Workers’ Benefit Protection Act; and claims of intentional\ninfliction of emotional distress; breach of contract including but not limited to this Agreement; breach of implied contract; or any other\nstatute or common law principle of similar effect.\n7.5 Either party may commence the arbitration process called for in this Dispute Resolution Agreement by first filing a demand upon the\nother party. The parties will then agree to submit the claim to the arbitrator or association mutually agreed upon by the Bank and\nEmployee. Thereafter, the demand shall be filed with the arbitrator or association mutually agreed upon. The arbitration will be\nconducted in accordance with provisions set forth by such individual or organization, that are in effect at the time of filing the demand\nfor arbitration. The parties will cooperate with one another and with the arbitrator or association, in selecting an arbitrator, and in\nscheduling the arbitration proceedings. The arbitrator will issue a written award discussing the facts and the law. The arbitrator shall have\nthe authority to provide for all types of relief that would otherwise be available in court.\n7.6 For purposes of the arbitration, the parties are entitled to file responsive pleadings, cross complaints, demurrers, motions to strike,\nmotions for summary judgment and motions for judgment on the pleadings pursuant to the California Rules of Civil Procedure Code and\nthe California Evidence Code. The parties are entitled to conduct discovery pursuant to the California Code of Civil Procedure.\n7.7 The Bank shall pay all of the fees and costs of the arbitration and will pay for its own attorney’s fees and will not request any fees or\ncosts from the Employee. Should the Employee retain legal counsel, the cost of such legal counsel shall be the sole responsibility of the\nEmployee.\nPage 8\n7.8 Employee Acknowledgment. By initialing in the space below you are agreeing to have all disputes, claims or controversies arising out of\nor relating to your employment decided by neutral arbitration, and you are giving up any rights you might possess to have those matters\nlitigated in court or jury trial. By initialing in the space below you are giving up your judicial right to appeal. If you refuse to submit to\narbitration after agreeing to this provision, you may be compelled to arbitrate under federal or state law. Your agreement to this\narbitration provision is voluntary.\nI have read and understand the foregoing and agree to submission of all disputes, claims or controversies arising out of or relating to this\nagreement to neutral arbitration in accordance with this agreement.\nEMPLOYEE\nTHE BANK\n7.9 Employee has been advised to seek the advice of an attorney regarding the legal effect of this agreement prior to signing it. The\nEmployee specifically acknowledges that the Employee is entering into this agreement voluntarily and has not been coerced into signing\nthe agreement.\n8. ARTICLE 8 – MISCELLANEOUS\n8.1 Severable Provisions. The provisions of this Agreement are separate and distinct, and if any provisions are determined to be\nunenforceable, in whole or in part, the remaining provisions, and the enforceable parts of any partially unenforceable provisions, shall\nnevertheless be enforceable.\n8.2 Indemnification. The Bank and Employee are entering into an indemnification agreement in the form attached hereto as Exhibit “A.”\nAny payments made to Employee pursuant to such indemnification agreement are subject to and conditioned upon compliance with 12\nC.F.R. Section 545.121, and any rules or regulations promulgated thereunder.\n8.3 Successors and Assigns. The Bank shall require any successor or assignee, whether direct or indirect, by purchase, merger, consolidation,\nor otherwise to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform in writing this\nAgreement in the same manner and to the same extent that the Bank would be required to perform it if no such succession or assignment\nhad taken place. This Agreement shall inure to the benefit of and be binding upon the Bank, its successors and assigns, and upon the\nEmployee and his heirs, executors, administrators and legal representatives. No party to this Agreement may delegate its or his duties\nhereunder without the prior written consent of the other parties to this Agreement.\nPage 9\n8.4 Governing Law. California law shall in all respects govern the validity, construction, and interpretation of this Agreement.\n8.5 Source of Payments. All payments provided in this Agreement shall be timely paid in cash or check from the general funds of the Bank.\nThe Company, however, unconditionally guarantees payment and provision of all amounts and benefits due hereunder to Employee and,\nif such amounts and benefits due from the Bank are not timely paid or provided by the Bank, such amounts and benefits shall be paid or\nprovided by the Company.\n8.6 Incorporation by Reference of Relevant Regulatory Law. This Agreement incorporates by reference all applicable regulatory law,\nincluding but not limited to 12 U.S.C. section 1828(k) and any regulations promulgated under it; 12 U.S .C. section 1818(e); and 12\nC.F.R. section 563.39(b); and all replacement statutes and regulations.\n8.7 Integration. This Agreement, including any documents expressly incorporated into it by the terms of this Agreement, constitute the entire\nagreement between the parties and supersedes all prior oral and written agreements, understandings, negotiations, and discussions\nrelating to the subject matter of this Agreement. With this Agreement the parties rescind any previous employment agreements or\narrangements between themselves.\n8.8 No Oral Modification. Any supplement, modification, waiver, or cancellation of this Agreement is valid only if it is set forth in a writing\nsigned by both parties.\n8.9 No Waiver. The waiver of any provision of this Agreement shall not constitute a waiver of any other provision and, unless otherwise\nstated, shall not constitute a continuing waiver.\n8.10 Notices. Any notices required under this Agreement shall be in writing and shall be deemed to have been given (i) if personally\ndelivered, when so delivered, (ii) if mailed, one week after having been placed in the U.S. mail, registered or certified, postage prepaid,\naddressed to the party to whom it is directed at the address listed below, or (iii) if given by facsimile, when the notice is transmitted to\nthe facsimile number specified below, and confirmation is received:\nIf to the Bank:\n23901 Calabasas Road, Suite 1050\nCalabasas, CA 91302\nAttention: Chairman, Compensation Committee\nWith a copy to the Chairman of the Board\nTelephone: (818) 223-5474\nFacsimile: (818) 223-5487\nPage 10\nIf to Employee:\nJoseph W. Kiley, III\n14734 Valley Vista Boulevard\nSherman Oak, CA 91403\nTelephone: (818) 783-4334\nFacsimile: (818) 783-4523\n9. ARTICLE 9 – ADVICE OF COUNSEL\nEach party acknowledges that it has had an opportunity to negotiate, carefully consider, and receive the advice of any attorney of its own choosing\non the terms of this Agreement before signing it. To the extent that any party does not seek the advice of an attorney, it knowingly and freely waives\nsuch a right.\nACCEPTED AND AGREED TO:\nACCEPTED AND AGREED TO:\nTHE BANK\nEMPLOYEE\nDate: December 21, 2005.\nDate: December 21, 2005.\nBy /s/ Larry B. Faigin\nBy /s/ Joseph W. Kiley, III\nLarry B. Faigin\nJoseph W. Kiley, III\nExecutive Vice President\nFirst Bank of Beverly Hills\nPage 11	EX-10.1 2 dex101.htm EMPLOYMENT AND CONFIDENTIALITY AGREEMENT EXHIBIT 10.1\nThis Employment and Confidentiality Agreement (the “Agreement”) is made between First Bank of Beverly Hills (the “Bank”), a state chartered bank, and Joseph W. Kiley, III (the “Employee”). The Bank is an affiliate of Beverly Hills Bancorp, Inc. a Delaware corporation (the “Company”). Accordingly, on the basis of the representations, warranties, and covenants contained in this Agreement, the parties agree as follows effective as of January 1, 2006 (the “Effective Date™): 1. ARTICLE 1-EMPLOYMENT AND TERM 1.1.\n1.2. The Bank earlier notified Employee that it was not renewing Employee’s employment under the terms of the Employment,\nConfidentiality and Contingent Severance Agreement dated January 1, 2003 (the “Severance Agreement”). Accordingly, Employee’s\nemployment pursuant to that Severance Agreement will expire December 31, 2005. Notwithstanding the fact that the Bank and\nEmployee are entering into a new employment relationship pursuant to this Agreement, the pay and benefits Employee is to receive\nunder the terms of the Severance Agreement pursuant to Section 4.2(b) and (c) thereof shall not be impacted or otherwise affected by\nEmployee’s entering into this Agreement with the Bank and Employee shall begin to receive the pay and benefits outlined in the\nSeverance Agreement as a result of the Bank’s non-renewal of the Severance Agreement commencing on January 1, 2006. Likewise,\nEmployee’s entitlement to receive the 2004 continuous service bonus payments pursuant to the Amended 2004 Annual Incentive Award\nPlan is not altered by this Agreement and thus payable on January 1, 2006.\nTerm. The term of employment under this Agreement shall commence on the Effective Date, and shall continue for a period of twelve\n(12) months thereafter. Either the Bank or Employee may terminate the employment relationship under this Agreement at any time, with\nor without reason, upon thirty (30) days notice to the other. If the Bank provides thirty (30) days notice to terminate the employment\nrelationship, then it will have no further obligation to pay Employee his salary through the remainder of the term of this Agreement. The\nBank may, at its option, offer to continue the employment relationship under this Agreement for an additional 6 month term, upon\nwritten notice to Employee.\n2.  ARTICLE 2 - DUTIES OF THE EMPLOYEE 2.1. Position and Duties. The Bank will employ the Employee as its President and Chief Executive Officer, and Employee accepts such\nemployment, on the terms and conditions set forth in this Agreement. Employee will undertake and\nPage 1\n2.2 2.3. 24. perform all duties as required of the position. Employee will render such services and perform such duties and acts in connection with\nany aspect of the Bank’s business as may be lawfully required by the management or the Board of Directors of the Bank. Employee shall\nperform the services contemplated herein faithfully, diligently, to the best of Employee’s ability, and in the best interests of the Bank.\nEmployee will also devote his full and exclusive business time and efforts in rendering such services and to the extent of his authority\nwill endeavor to ensure that the Bank is in compliance with all laws, rules, regulations and policies applicable to the Bank. The\nEmployee shall, at all times, adhere to and obey any and all written internal rules and regulations governing the conduct of the Bank’s\nemployees as established and modified from time to time.\nExclusive Services. During his employment by the Bank, the Employee shall not, without the express prior written consent of the Board\nof Directors of the Bank, engage directly or indirectly in any outside employment or consulting of any kind, whether or not the\nEmployee receives remuneration for such services. Further, the Employee shall not engage in any activity that would impair the\nEmployee’s ability to act and exercise judgment in the best interest of the Bank.\nSubpoenas; Cooperation in Defense of the Bank. If the Employee, during employment or thereafter, is served with any subpoena or other\ncompulsory judicial or administrative process calling for production of confidential information or if the Employee is otherwise required\nby law or regulations to disclose confidential information, the Employee will immediately, before making any such production or\ndisclosure, notify the Bank and provide it with such information as may be necessary for the Bank to take such action as the Bank deems\nnecessary to protect its interests. The Employee agrees to cooperate reasonably with the Bank, whether during employment or thereafter,\nin the prosecution or defense of all threatened claims or actual litigation in which the Bank is or may become a party, whether now\npending or hereafter brought, in which the Employee has knowledge of relevant facts or issues. The Employee shall be reimbursed for\nreasonable expenses for travel time due to cooperating with the prosecution or defense of any litigation for the Bank.\nOther Obligations. The Employee acknowledges that the Bank from time to time may have agreements with other persons or with\nvarious governmental agencies that impose obligations or restrictions on the Bank regarding inventions or creative works made during\nthe course of the Bank’s work under such agreements, or that relate to the confidential nature of such work. The Employee agrees to be\nbound by all such obligations and restrictions of which the Employee is informed by the Bank and to take all action necessary to\ndischarge the obligations of the Bank thereunder.\n \nPage 2\n3. ARTICLE 3 - COMPENSATION 3.1.\n3.2\n3.3.\n3.4. 3.5. 3.6. 3.7. Base Salary. Employee will receive a base salary of $275,000.00 per year, less applicable withholdings. This salary shall be payable\nsemi-monthly in accordance with the Bank’s regular payroll practices.\nBank Employee Benefits. Employee will be entitled to participate in the Bank’s employee benefit plans, including the Amended 2004\nAnnual Incentive Award Plan or its successor, 401(k) savings plan, medical, dental, vision, long-term disability, and short term disability\nbenefits or insurance programs on the same basis as any of those benefits or insurance programs are available generally to other officers\nof similar position under the Bank’s then current personnel policies. The Bank and the Company will not, without Employee’s written\nconsent, make any changes in Employee’s rights or benefits thereunder, except to the extent such changes are made applicable to all\nexecutive-level Bank and Company employees on a non-discriminatory basis. The Bank’s obligations to continue coverage of these\nbenefits under Section 4.2(c) of the above-referenced Severance Agreement will be suspended during the period of time Employee\ncontinues his employment pursuant to this Agreement. Upon the termination of Employee’s employment pursuant to this Agreement, the\nBank’s obligations under Section 4.2(c) of the Severance Agreement will commence and continue under the provisions stated therein.\nVacation. Employee will be eligible to earn vacation time at a rate of 13.33 hours per month up to a total of 160 hours in the calendar\nyear. Vacation time not used in any calendar year may be carried forward, provided, however, that, once the Employee has accrued 200\nhours, Employee shall not be eligible to accrue additional vacation time until he has taken one or more days of vacation.\nReimbursement for Expenses. To the extent Employee incurs necessary and reasonable business expenses in the course of his\nemployment, the Bank will reimburse Employee for such expenses, subject to the Bank’s then current policies regarding reimbursement\nof such business expenses.\nIndemnity and Insurance. Employee shall receive all benefits and privileges to which the Employee is entitled by law or pursuant to the\nBylaws of the Bank or the Company.\n2005 Bonus Payment. Employee will be eligible to receive a 2005 bonus in the amount of $175,000.00 pursuant to the Amended 2004\nAnnual Incentive Award Plan approved by the Board on February 4, 2005. Said bonus payment will be made to Employee on or before\nMarch 15, 2006.\nContinuous Service Bonus Eligibility. Employee will be eligible to receive a continuous service bonus in the amount of $75,000.00 if\nEmployee remains employed through June 30, 2006. If the Bank terminates Employee’s employment pursuant to this Agreement at any\ntime prior to June 30, 2006, Employee will remain eligible to receive this continuous service bonus payment. Should Employee\nterminate his employment relationship with the Bank prior to\nPage 3\nJune 30, 2006, Employee will forfeit his eligibility for the continuous service bonus payment. If Employee is terminated for “cause” as\ndefined in Section 4.1 of this Agreement prior to June 30, 2006, then Employee is not entitled to and forfeits his eligibility for the\ncontinuous service bonus set forth in this Section 3.7. If Employee remains employed with the Bank after June 30, 2006, then, at the\nBank’s Board of Directors’ sole discretion, Employee may be provided a Bonus Opportunity in addition to the bonus mentioned in this\nSection 3.7 as provided in Section 3.2.\n4. ARTICLE 4 - TERMINATION FOR CAUSE 4.1\nTermination for Cause. Termination for cause shall mean termination because of Employee’s incompetence, personal dishonesty, willful\nmisconduct, any breach of fiduciary duty involving personal profit, habitual neglect of duties, intentional failure to perform stated duties,\nwillful violation of any material law, rule or regulation, order or material breach of any employment policy of the Bank or any material\nbreach of any provision of this Agreement. Written notice delivered to Employee is a prerequisite to Termination for Cause and such\ntermination shall be effective on the delivery date of the written notice. Employee shall have the right to receive compensation or other\nbenefits which have already vested or been earned as of the date of notice of Termination for Cause, unless expressly prohibited by the\nterms of any plan, program or agreement governing such compensation or benefits. Employee shall receive no other compensation or\nseverance pay in the event of Termination for Cause.\n5. ARTICLE 5 - CONFIDENTIALITY AND NON-SOLICITATION 5.1.\nNon-disclosure of Confidential and Trade Secret Information. Employee acknowledges that, in the course of employment with the Bank,\nEmployee will have access to and learn confidential information. Confidential information includes but is not limited to information\nabout the Bank’s borrowers and clients, the terms and conditions under which the Bank or its affiliates deal with borrowers and clients,\npricing information for the purchase or sale of assets, financing and securitization arrangements, research materials, manuals, computer\nprograms, formulas analyzing assets portfolios, techniques, data, marketing plans and tactics, technical information, lists of asset\nsources, the processes and practices of the Bank and related companies, information contained in electronic or computer files, financial\ninformation, salary and wage information, and other information that is designated by the Bank or its affiliates as confidential or that\nEmployee knows or should know is confidential information provided by third parties that the Bank or its affiliates are obligated to keep\nconfidential and all other proprietary information of the Bank or its affiliates. Employee acknowledges that all confidential information is\nand shall continue to be the exclusive property of the Bank or its affiliates, whether or not prepared in whole or in part by the Employee\nand whether or not disclosed to or entrusted to the Employee in connection with employment by the Bank. Employee agrees not to\nPage 4\n5.2 5.3. 5.4. 5.5. disclose confidential information, directly or indirectly, under any circumstances or by any means, to any third persons without the prior\nwritten consent of the Bank. Employee agrees that he will not copy, transmit, reproduce, summarize, quote, or make any commercial or\nother use whatsoever of confidential information, except as may be necessary to perform work done by Employee for the Bank.\nEmployee agrees to exercise the highest degree of care in safeguarding confidential information against loss, theft or other inadvertent\ndisclosure and agrees generally to take all steps necessary or requested by the Bank to ensure maintenance of the confidentiality of the\nconfidential information. Employee agrees in addition to the specific covenants contained herein to comply with all of the Bank’s\npolicies and procedures, as well as all applicable laws, for the protection of confidential information.\nExclusions. Section 5.1 shall not apply to the following information: (a) information now or hereafter voluntarily disseminated by the\nBank to the public or which otherwise becomes part of the public domain through lawful means; (b) information already known to the\nEmployee as documented by written records which predate Employee’s employment with the Bank; (c) information subsequently and\nrightfully received from third parties and not subject to any obligation of confidentiality; or (d) information independently developed by\nEmployee after termination of his employment.\nConfidential Proprietary and Trade Secret Information of Others. Employee represents that he has disclosed to the Bank any agreement\nto which Employee is or has been a party regarding the confidential information of others and Employee understands that Employee’s\nemployment by the Bank will not require Employee to breach any such agreement. Employee will not disclose such confidential\ninformation to the Bank nor induce the Bank to use any trade secret proprietary information received from another under an agreement\nor understanding prohibiting such use or disclosure.\nNon-solicitation of Employees. During the period of twelve (12) months after termination of this Agreement, Employee shall not directly\nor indirectly solicit for employment or for independent contractor work any employee of the Bank or the Company, and shall not\nencourage any such employee to leave the employment of the Bank or the Company.\nCompany to Benefit from Provisions. To the extent any provisions of this Article 5 relates in any way to confidential information and\ntrade secrets of the Company, then the obligations of Employee set forth in this Article 5 shall also extend to the Company and inure to\nits benefit.\nARTICLE 6 - BANK’S OWNERSHIP IN EMPLOYEE’S WORK 6.1. Bank’s Ownership. The Employee agrees that all inventions, discoveries, improvements, trade secrets, formulas, techniques, mask\nworks, processes, and\nPage 5\n6.2. know-how, whether or not patentable, and whether or not reduced to practice, that are conceived or developed during the Employee’s\nemployment with the Bank, either alone or jointly with others, or relating to the Bank or to the banking industry shall be owned\nexclusively by the Bank, and the Employee hereby assigns to the Bank all Employee’s right, title, and interest in all such intellectual\nproperty. The Employee agrees that the Bank shall be the sole owner of all rights pertaining thereto, including but not limited to domestic\nand foreign patents or other rights pertaining thereto, and further agrees to execute all documents that the Bank reasonably determines to\nbe necessary or convenient for use in applying for, prosecuting, perfecting, or enforcing patents or other intellectual property rights,\nincluding the execution of any assignments, patents applications, or other documents that Bank may reasonably request. The Employee\nshall claim no interest in any inventions, copyrighted material, mask works, patents, or patent applications unless the Employee\ndemonstrates that any such invention, copyrighted material, mask, work, patent, or patent application was developed before he began any\nemployment with the Bank. This provision is intended to apply only to the extent permitted by applicable law.\nStatutory Limitation on Assignment. The Employee understands that the Bank is hereby advising the Employee that any provision in this\nAgreement requiring the Employee to assign rights in any invention does not apply to an invention that qualifies fully under the\nprovisions of Section 2870 of the California Labor Code. That Section provides, as follows:\n(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her\nrights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her\nown time without using the employer’s equipment, supplies, facilities, or trade secret information, except for those inventions that\neither:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or\ndemonstrably anticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\n(b)  To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded\nfrom being required to be assigned under subdivision (a), the provision is against the public policy of this state and is\nunenforceable.\nBy signing this Agreement, the Employee acknowledges that this paragraph shall constitute written notice of the provisions of\nSection 2870.\nPage 6\n6.3\n6.4\n6.5\n6.6\nOwnership of Records. Any written record that the Employee may maintain of inventions, discoveries, improvements, trade secrets,\nformulae, processes, or know-how, whether or not patentable and whether or not reduced to practice, and any such records relating to\noriginal works of authorship or mask works made by the Employee, alone or jointly with others, in the course of the Employee’s\nemployment with the Bank shall remain the property of the Bank. The Employee shall furnish the Bank any and all such records\nimmediately upon request.\nOwnership of Records. If the Employee, during employment with the Bank, is engaged in or associated with the planning or\nimplementation of any project, program, or venture involving the Bank and any third parties, all rights in the project, program, or venture\nshall belong to the Bank, and the Employee shall not be entitled to any interest therein or to any commission, finder’s fee, or other\ncompensation in connection therewith other than the salary to be paid to the Employee as provided in this Agreement.\nReturn of Bank’s Property and Materials. Upon termination of employment with the Bank, Employee shall deliver to the Bank all Bank\nproperty and materials that are in the Employee’s possession or control, including all of the information described as confidential\ninformation in Article 5 of this Agreement and including all other information relating to any inventions, discoveries, improvements,\ntrade secrets, formulae, processes, know-how, original works of authorship, or mask works of the Bank.\nCompany to Benefit from Provisions. To the extent any provisions of this Article 6 relates in any way to information, property, rights,\nprojects, ventures, or inventions of the Company, then the obligations of Employee set forth in this Article 6 shall also extend to the\nCompany and inure to its benefit.\nARTICLE 7 - DISPUTE RESOLUTION AGREEMENT 7.1\n7.2\nIn the event of any dispute, claim or controversy between the Bank and Employee, both parties agree to initially submit such dispute,\nclaim or controversy to non-binding mediation, by a mediator mutually agreed upon by the Bank and Employee. The disputes, claims\nand controversies to be submitted to mediation include, but are not limited to, claims arising from the California Constitution; Title VII\nof the Civil Rights Act of 1964 (42 U.S.C. §2000e); the California Fair Employment and Housing Act (Cal.Govt. Code §12900 et seq.);\nthe Americans with Disabilities Act; the Age Discrimination in Employment Act (29 U.S.C. §§ 621-633a); the Older Workers’ Benefit\nProtection Act; and claims of intentional infliction of emotional distress; breach of contract including but not limited to this Agreement;\nbreach of implied contract; or any other statute or common law principle of similar effect.\nEither party may commence the non-binding mediation process called for in this Dispute Resolution Agreement by providing written\nnotice upon the\nPage 7\n7.3\n7.4\n7.5\n7.6\n7.7\nother party as set forth in paragraph 8.10 of this Agreement. The parties will then agree to submit the claim to a mediator mutually\nagreed upon by the Bank and Employee. The parties will cooperate with one another and with the non-binding mediator, in selecting a\nmediator, and in scheduling the mediation.\nThe Bank shall pay all of the fees and costs of the non-binding mediation and will pay for its own attorney’s fees and will not request any\nfees or costs from the Employee. Should the Employee retain legal counsel, the cost of such legal counsel shall be the sole responsibility\nof the Employee.\nIf the parties fail to resolve their dispute, claim or controversy in non-binding mediation as set forth in paragraphs 7.1-7.3, above, then\nthe Bank and Employee agree to submit such dispute, claim or controversy to final and binding arbitration, by an arbitrator or association\nmutually agreed upon by the Bank and Employee. The disputes, claims and controversies to be submitted to arbitration include, but are\nnot limited to, claims arising from the California Constitution; Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e); the\nCalifornia Fair Employment and Housing Act (Cal.Govt. Code §12900 et seq.); the Americans with Disabilities Act; the Age\nDiscrimination in Employment Act (29 U.S.C. §§ 621-633a); the Older Workers’ Benefit Protection Act; and claims of intentional\ninfliction of emotional distress; breach of contract including but not limited to this Agreement; breach of implied contract; or any other\nstatute or common law principle of similar effect.\nEither party may commence the arbitration process called for in this Dispute Resolution Agreement by first filing a demand upon the\nother party. The parties will then agree to submit the claim to the arbitrator or association mutually agreed upon by the Bank and\nEmployee. Thereafter, the demand shall be filed with the arbitrator or association mutually agreed upon. The arbitration will be\nconducted in accordance with provisions set forth by such individual or organization, that are in effect at the time of filing the demand\nfor arbitration. The parties will cooperate with one another and with the arbitrator or association, in selecting an arbitrator, and in\nscheduling the arbitration proceedings. The arbitrator will issue a written award discussing the facts and the law. The arbitrator shall have\nthe authority to provide for all types of relief that would otherwise be available in court.\nFor purposes of the arbitration, the parties are entitled to file responsive pleadings, cross complaints, demurrers, motions to strike,\nmotions for summary judgment and motions for judgment on the pleadings pursuant to the California Rules of Civil Procedure Code and\nthe California Evidence Code. The parties are entitled to conduct discovery pursuant to the California Code of Civil Procedure.\nThe Bank shall pay all of the fees and costs of the arbitration and will pay for its own attorney’s fees and will not request any fees or\ncosts from the Employee. Should the Employee retain legal counsel, the cost of such legal counsel shall be the sole responsibility of the\nEmployee.\nPage 8\n7.8\nEmployee Acknowledgment. By initialing in the space below you are agreeing to have all disputes, claims or controversies arising out of\nor relating to your employment decided by neutral arbitration, and you are giving up any rights you might possess to have those matters\nlitigated in court or jury trial. By initialing in the space below you are giving up your judicial right to appeal. If you refuse to submit to\narbitration after agreeing to this provision, you may be compelled to arbitrate under federal or state law. Your agreement to this\narbitration provision is voluntary.\nI have read and understand the foregoing and agree to submission of all disputes, claims or controversies arising out of or relating to this agreement to neutral arbitration in accordance with this agreement. EMPLOYEE THE BANK 7.9\nEmployee has been advised to seek the advice of an attorney regarding the legal effect of this agreement prior to signing it. The\nEmployee specifically acknowledges that the Employee is entering into this agreement voluntarily and has not been coerced into signing\nthe agreement.\nARTICLE 8 - MISCELLANEOUS 8.1\n8.2\n8.3\nSeverable Provisions. The provisions of this Agreement are separate and distinct, and if any provisions are determined to be\nunenforceable, in whole or in part, the remaining provisions, and the enforceable parts of any partially unenforceable provisions, shall\nnevertheless be enforceable.\nIndemnification. The Bank and Employee are entering into an indemnification agreement in the form attached hereto as Exhibit “A.”\nAny payments made to Employee pursuant to such indemnification agreement are subject to and conditioned upon compliance with 12\nC.F.R. Section 545.121, and any rules or regulations promulgated thereunder.\nSuccessors and Assigns. The Bank shall require any successor or assignee, whether direct or indirect, by purchase, merger, consolidation,\nor otherwise to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform in writing this\nAgreement in the same manner and to the same extent that the Bank would be required to perform it if no such succession or assignment\nhad taken place. This Agreement shall inure to the benefit of and be binding upon the Bank, its successors and assigns, and upon the\nEmployee and his heirs, executors, administrators and legal representatives. No party to this Agreement may delegate its or his duties\nhereunder without the prior written consent of the other parties to this Agreement.\nPage 9\n8.4\n8.5\n8.6\n8.7\n8.8\n8.9\n8.10\nGoverning Law. California law shall in all respects govern the validity, construction, and interpretation of this Agreement.\nSource of Payments. All payments provided in this Agreement shall be timely paid in cash or check from the general funds of the Bank.\nThe Company, however, unconditionally guarantees payment and provision of all amounts and benefits due hereunder to Employee and,\nif such amounts and benefits due from the Bank are not timely paid or provided by the Bank, such amounts and benefits shall be paid or\nprovided by the Company.\nincluding but not limited to 12 U.S.C. section 1828(k) and any regulations promulgated under it; 12 U.S.C. section 1818(e); and 12\nC.ER. section 563.39(b); and all replacement statutes and regulations.\nIntegration. This Agreement, including any documents expressly incorporated into it by the terms of this Agreement, constitute the entire\nagreement between the parties and supersedes all prior oral and written agreements, understandings, negotiations, and discussions\nrelating to the subject matter of this Agreement. With this Agreement the parties rescind any previous employment agreements or\narrangements between themselves.\nNo Oral Modification. Any supplement, modification, waiver, or cancellation of this Agreement is valid only if it is set forth in a writing\nsigned by both parties.\nNo Waiver. The waiver of any provision of this Agreement shall not constitute a waiver of any other provision and, unless otherwise\nstated, shall not constitute a continuing waiver.\nNotices. Any notices required under this Agreement shall be in writing and shall be deemed to have been given (i) if personally\ndelivered, when so delivered, (ii) if mailed, one week after having been placed in the U.S. mail, registered or certified, postage prepaid,\naddressed to the party to whom it is directed at the address listed below, or (iii) if given by facsimile, when the notice is transmitted to\nthe facsimile number specified below, and confirmation is received:\nIf to the Bank:\n23901 Calabasas Road, Suite 1050\nCalabasas, CA 91302\nAttention: Chairman, Compensation Committee\nWith a copy to the Chairman of the Board\nTelephone: (818) 223-5474\nFacsimile: (818) 223-5487\nPage 10\nIf to Employee:\nJoseph W. Kiley, III\n14734 Valley Vista Boulevard\nSherman Oak, CA 91403\nTelephone: (818) 783-4334\nFacsimile: (818) 783-4523\n9. ARTICLE 9 - ADVICE OF COUNSEL\nEach party acknowledges that it has had an opportunity to negotiate, carefully consider, and receive the advice of any attorney of its own choosing\non the terms of this Agreement before signing it. To the extent that any party does not seek the advice of an attorney, it knowingly and freely waives\nsuch a right.\nACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:\nTHE BANK EMPLOYEE\nDate: December 21, 2005. Date: December 21, 2005.\nBy /s/Larry B. Faigin By /s/ Joseph W. Kiley, III\nLarry B. Faigin Joseph W. Kiley, III\nExecutive Vice President\nFirst Bank of Beverly Hills\nPage 11	EX-10.1 2 dex101.htm EMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nEXHIBIT 10.1\nEmployment and Confidentiality Agreement\nThis Employment and Confidentiality Agreement (the "Agreement") is made between First Bank of Beverly Hills (the "Bank"), a state chartered\nbank, and Joseph W. Kiley, III (the "Employee"). The Bank is an affiliate of Beverly Hills Bancorp, Inc. a Delaware corporation (the "Company").\nAccordingly, on the basis of the representations, warranties, and covenants contained in this Agreement, the parties agree as follows effective as of\nJanuary 1, 2006 (the "Effective Date"):\n1.\nARTICLE 1 - EMPLOYMENT AND TERM\n1.1. The Bank earlier notified Employee that it was not renewing Employee's employment under the terms of the Employment,\nConfidentiality and Contingent Severance Agreement dated January 1, 2003 (the "Severance Agreement"). Accordingly, Employee's\nemployment pursuant to that Severance Agreement will expire December 31, 2005. Notwithstanding the fact that the Bank and\nEmployee are entering into a new employment relationship pursuant to this Agreement, the pay and benefits Employee is to receive\nunder the terms of the Severance Agreement pursuant to Section 4.2(b) and (c) thereof shall not be impacted or otherwise affected by\nEmployee's entering into this Agreement with the Bank and Employee shall begin to receive the pay and benefits outlined in the\nSeverance Agreement as a result of the Bank's non-renewal of the Severance Agreement commencing on January 1, 2006. Likewise,\nEmployee's entitlement to receive the 2004 continuous service bonus payments pursuant to the Amended 2004 Annual Incentive Award\nPlan is not altered by this Agreement and thus payable on January 1, 2006.\n1.2.\nTerm. The term of employment under this Agreement shall commence on the Effective Date, and shall continue for a period of twelve\n(12) months thereafter. Either the Bank or Employee may terminate the employment relationship under this Agreement at any time, with\nor without reason, upon thirty (30) days notice to the other. If the Bank provides thirty (30) days notice to terminate the employment\nrelationship, then it will have no further obligation to pay Employee his salary through the remainder of the term of this Agreement\nThe\nBank may, at its option, offer to continue the employment relationship under this Agreement for an additional 6 month term, upon\nwritten notice to Employee.\n2.\nARTICLE 2 - DUTIES OF THE EMPLOYEE\n2.1.\nPosition and Duties. The Bank will employ the Employee as its President and Chief Executive Officer, and Employee accepts such\nemployment, on the terms and conditions set forth in this Agreement. Employee will undertake and\nPage 1\nperform all duties as required of the position. Employee will render such services and perform such duties and acts in connection with\nany aspect of the Bank's business as may be lawfully required by the management or the Board of Directors of the Bank. Employee shall\nperform the services contemplated herein faithfully, diligently, to the best of Employee's ability, and in the best interests of the Bank.\nEmployee will also devote his full and exclusive business time and efforts in rendering such services and to the extent of his authority\nwill endeavor to ensure that the Bank is in compliance with all laws, rules, regulations and policies applicable to the Bank. The\nEmployee shall, at all times, adhere to and obey any and all written internal rules and regulations governing the conduct of the Bank's\nemployees as established and modified from time to time.\n2.2. Exclusive Services. During his employment by the Bank, the Employee shall not, without the express prior written consent of the Board\nof Directors of the Bank, engage directly or indirectly in any outside employment or consulting of any kind, whether or not the\nEmployee receives remuneration for such services. Further, the Employee shall not engage in any activity that would impair the\nEmployee's ability to act and exercise judgment in the best interest of the Bank.\n2.3.\nSubpoenas; Cooperation in Defense of the Bank. If the Employee, during employment or thereafter, is served with any subpoena or other\ncompulsory judicial or administrative process calling for production of confidential information or if the Employee is otherwise required\nby law or regulations to disclose confidential information, the Employee will immediately, before making any such production or\ndisclosure, notify the Bank and provide it with such information as may be necessary for the Bank to take such action as the Bank deems\nnecessary to protect its interests. The Employee agrees to cooperate reasonably with the Bank, whether during employment or thereafter,\nin the prosecution or defense of all threatened claims or actual litigation in which the Bank is or may become a party, whether now\npending or hereafter brought, in which the Employee has knowledge of relevant facts or issues. The Employee shall be reimbursed for\nreasonable expenses for travel time due to cooperating with the prosecution or defense of any litigation for the Bank.\n2.4. Other Obligations. The Employee acknowledges that the Bank from time to time may have agreements with other persons or with\nvarious governmental agencies that impose obligations or restrictions on the Bank regarding inventions or creative works made during\nthe course of the Bank's work under such agreements, or that relate to the confidential nature of such work. The Employee agrees to\nbe\nbound by all such obligations and restrictions of which the Employee is informed by the Bank and to take all action necessary to\ndischarge the obligations of the Bank thereunder.\nPage 2\n3.\nARTICLE 3 - COMPENSATION\n3.1. Base Salary.. Employee will receive a base salary of $275,000.00 per year, less applicable withholdings. This salary shall be payable\nsemi-monthly in accordance with the Bank's regular payroll practices.\n3.2. Bank Employee Benefits. Employee will be entitled to participate in the Bank's employee benefit plans, including the Amended 2004\nAnnual Incentive Award Plan or its successor, 401(k) savings plan, medical, dental, vision, long-term disability, and short term disability\nbenefits or insurance programs on the same basis as any of those benefits or insurance programs are available generally to other officers\nof similar position under the Bank's then current personnel policies. The Bank and the Company will not, without Employee's written\nconsent, make any changes in Employee's rights or benefits thereunder, except to the extent such changes are made applicable to all\nexecutive-level Bank and Company employees on a non-discriminatory basis. The Bank's obligations to continue coverage of these\nbenefits under Section 4.2(c) of the above-referenced Severance Agreement will be suspended during the period of time Employee\ncontinues his employment pursuant to this Agreement. Upon the termination of Employee's employment pursuant to this Agreement, the\nBank's obligations under Section 4.2(c) of the Severance Agreement will commence and continue under the provisions stated therein.\n3.3.\nVacation. Employee will be eligible to earn vacation time at a rate of 13.33 hours per month up to a total of 160 hours in the calendar\nyear. Vacation time not used in any calendar year may be carried forward, provided, however, that, once the Employee has accrued 200\nhours, Employee shall not be eligible to accrue additional vacation time until he has taken one or more days of vacation.\n3.4. Reimbursement for Expenses. To the extent Employee incurs necessary and reasonable business expenses in the course of his\nemployment the Bank will reimburse Employee for such expenses, subject to the Bank's then current policies regarding reimbursement\nof such business expenses.\n3.5. Indemnity. and Insurance. Employee shall receive all benefits and privileges to which the Employee is entitled by law or pursuant to the\nBylaws of the Bank or the Company.\n3.6. 2005 Bonus Payment. Employee will be eligible to receive a 2005 bonus in the amount of $175,000.00 pursuant to the Amended 2004\nAnnual Incentive Award Plan approved by the Board on February 4, 2005. Said bonus payment will be made to Employee on or before\nMarch 15, 2006.\n3.7. Continuous Service Bonus Eligibility. Employee will be eligible to receive a continuous service bonus in the amount of $75,000.00 if\nEmployee remains employed through June 30, 2006. If the Bank terminates Employee's employment pursuant to this Agreement at any\ntime prior to June 30, 2006, Employee will remain eligible to receive this continuous service bonus payment. Should Employee\nterminate his employment relationship with the Bank prior to\nPage 3\nJune 30, 2006, Employee will forfeit his eligibility for the continuous service bonus payment. If Employee is terminated for "cause" as\ndefined in Section 4.1 of this Agreement prior to June 30, 2006, then Employee is not entitled to and forfeits his eligibility for the\ncontinuous service bonus set forth in this Section 3.7. If Employee remains employed with the Bank after June 30, 2006, then, at the\nBank's Board of Directors' sole discretion, Employee may be provided a Bonus Opportunity in addition to the bonus mentioned in this\nSection 3.7 as provided in Section 3.2.\n4.\nARTICLE 4 - TERMINATION FOR CAUSE\n4.1\nTermination fon Cause. Termination for cause shall mean termination because of Employee's incompetence, personal dishonesty, willful\nmisconduct, any breach of fiduciary duty involving persona profit, habitual neglect of duties, intentional failure to perform stated duties,\nwillful violation of any material law, rule or regulation, order or material breach of any employment policy of the Bank or any material\nbreach of any provision of this Agreement. Written notice delivered to Employee is a prerequisite to Termination for Cause and such\ntermination shall be effective on the delivery date of the written notice. Employee shall have the right to receive compensation or other\nbenefits which have already vested or been earned as of the date of notice of Termination for Cause, unless expressly prohibited by the\nterms of any plan, program or agreement governing such compensation or benefits. Employee shall receive no other compensation or\nseverance pay in the event of Termination for Cause.\n5.\nARTICLE 5 - CONFIDENTIALITY AND NON-SOLICITATION\n5.1.\nNon-disclosure of Confidential and Trade Secret Information. Employee acknowledges that, in the course of employment with the Bank,\nEmployee will have access to and learn confidential information. Confidential information includes but is not limited to information\nabout the Bank's borrowers and clients, the terms and conditions under which the Bank or its affiliates deal with borrowers and clients,\npricing information for the purchase or sale of assets, financing and securitization arrangements, research materials, manuals, computer\nprograms, formulas analyzing assets portfolios, techniques, data, marketing plans and tactics, technical information, lists of asset\nsources, the processes and practices of the Bank and related companies, information contained in electronic or computer files, financial\ninformation, salary and wage information, and other information that is designated by the Bank or its affiliates as confidential or that\nEmployee knows or should know is confidential information provided by third parties that the Bank or its affiliates are obligated to keep\nconfidential and all other proprietary information of the Bank or its affiliates. Employee acknowledges that all confidential information\nis\nand shall continue to be the exclusive property of the Bank or its affiliates, whether or not prepared in whole or in part by the Employee\nand whether or not disclosed to or entrusted to the Employee in connection with employment by the Bank. Employee agrees not to\nPage 4\ndisclose confidential information, directly or indirectly, under any circumstances or by any means, to any third persons without the prior\nwritten consent of the Bank. Employee agrees that he will not copy, transmit, reproduce, summarize, quote, or make any commercial or\nother use whatsoever of confidential information, except as may be necessary to perform work done by Employee for the Bank.\nEmployee agrees to exercise the highest degree of care in safeguarding confidential information against loss, theft or other inadvertent\ndisclosure and agrees generally to take all steps necessary or requested by the Bank to ensure maintenance of the confidentiality of the\nconfidential information. Employee agrees in addition to the specific covenants contained herein to comply with all of the Bank's\npolicies and procedures, as well as all applicable laws, for the protection of confidential information.\n5.2. Exclusions Section 5.1 shall not apply to the following information: (a) information now or hereafter voluntarily disseminated by the\nBank to the public or which otherwise becomes part of the public domain through lawful means; (b) information already known to the\nEmployee as documented by written records which predate Employee's employment with the Bank; (c) information subsequently and\nrightfully received from third parties and not subject to any obligation of confidentiality; or (d) information independently developed by\nEmployee after termination of his employment.\n5.3.\nConfidential Proprietary and Trade Secret Information of Others. Employee represents that he has disclosed to the Bank any agreement\nto which Employee is or has been a party regarding the confidential information of others and Employee understands that Employee's\nemployment by the Bank will not require Employee to breach any such agreement. Employee will not disclose such confidential\ninformation to the Bank nor induce the Bank to use any trade secret proprietary information received from another under an agreement\nor understanding prohibiting such use or disclosure.\n5.4. Non-solicitation of Employees. During the period of twelve (12) months after termination of this Agreement, Employee shall not directly\nor indirectly solicit for employment or for independent contractor work any employee of the Bank or the Company, and shall not\nencourage any such employee to leave the employment of the Bank or the Company.\n5.5. Company to Benefit from Provisions. To the extent any provisions of this Article 5 relates in any way to confidential information and\ntrade secrets of the Company, then the obligations of Employee set forth in this Article 5 shall also extend to the Company and inure to\nits benefit.\n6.\nARTICLE 6 - BANK'S OWNERSHIP IN EMPLOYEE'S WORK\n6.1. Bank's Ownership. The Employee agrees that all inventions, discoveries, improvements, trade secrets, formulas, techniques, mask\nworks, processes, and\nPage 5\nknow-how, whether or not patentable, and whether or not reduced to practice, that are conceived or developed during the Employee's\nemployment with the Bank, either alone or jointly with others, or relating to the Bank or to the banking industry shall be owned\nexclusively by the Bank, and the Employee hereby assigns to the Bank all Employee's right, title, and interest in all such intellectual\nproperty. The Employee agrees that the Bank shall be the sole owner of all rights pertaining thereto, including but not limited to domestic\nand foreign patents or other rights pertaining thereto, and further agrees to execute all documents that the Bank reasonably determines to\nbe necessary or convenient for use in applying for, prosecuting, perfecting, or enforcing patents or other intellectual property rights,\nincluding the execution of any assignments, patents applications, or other documents that Bank may reasonably request. The Employee\nshall claim no interest in any inventions, copyrighted material, mask works, patents, or patent applications unless the Employee\ndemonstrates that any such invention, copyrighted material, mask, work, patent, or patent application was developed before he began any\nemployment with the Bank. This provision is intended to apply only to the extent permitted by applicable law.\n6.2. Statutory. Limitation on Assignment. The Employee understands that the Bank is hereby advising the Employee that any provision in this\nAgreement requiring the Employee to assign rights in any invention does not apply to an invention that qualifies fully under the\nprovisions of Section 2870 of the California Labor Code. That Section provides, as follows:\n(a)\nAny provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her\nrights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her\nown time without using the employer's equipment, supplies, facilities, or trade secret information, except for those inventions that\neither:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or\ndemonstrably anticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\n(b)\nTo the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded\nfrom being required to be assigned under subdivision (a), the provision is against the public policy of this state and is\nunenforceable.\nBy signing this Agreement, the Employee acknowledges that this paragraph shall constitute written notice of the provisions of\nSection 2870.\nPage 6\n6.3\nOwnership of Records. Any written record that the Employee may maintain of inventions, discoveries, improvements, trade secrets,\nformulae, processes, or know-how, whether or not patentable and whether or not reduced to practice, and any such records relating to\noriginal works of authorship or mask works made by the Employee, alone or jointly with others, in the course of the Employee's\nemployment with the Bank shall remain the property of the Bank. The Employee shall furnish the Bank any and all such records\nimmediately upon request.\n6.4\nOwnership of Records. If the Employee, during employment with the Bank, is engaged in or associated with the planning\nor\nimplementation of any project, program, or venture involving the Bank and any third parties, all rights in the project, program, or venture\nshall belong to the Bank, and the Employee shall not be entitled to any interest therein or to any commission, finder's fee, or other\ncompensation in connection therewith other than the salary to be paid to the Employee as provided in this Agreement.\n6.5\nReturn of Bank's Property and Materials. Upon termination of employment with the Bank, Employee shall deliver to the Bank all Bank\nproperty and materials that are in the Employee's possession or control, including all of the information described as confidential\ninformation in Article 5 of this Agreement and including all other information relating to any inventions, discoveries, improvements,\ntrade secrets, formulae, processes, know-how, original works of authorship, or mask works of the Bank.\n6.6\nCompany to Benefit from Provisions. To the extent any provisions of this Article 6 relates in any way to information, property, rights,\nprojects, ventures, or inventions of the Company, then the obligations of Employee set forth in this Article 6 shall also extend to the\nCompany and inure to its benefit.\n7.\nARTICLE 7 - DISPUTE RESOLUTION AGREEMENT\n7.1 In the event of any dispute, claim or controversy between the Bank and Employee, both parties agree to initially submit such dispute,\nclaim or controversy to non-binding mediation, by a mediator mutually agreed upon by the Bank and Employee. The disputes, claims\nand controversies to be submitted to mediation include, but are not limited to, claims arising from the California Constitution; Title VII\nof the Civil Rights Act of 1964 (42 U.S.C. 82000e); the California Fair Employment and Housing Act (Cal.Govt. Code 812900 et seq.);\nthe Americans with Disabilities Act; the Age Discrimination in Employment Act (29 U.S.C. 88 621-633a); the Older Workers' Benefit\nProtection Act; and claims of intentional infliction of emotional distress; breach of contract including but not limited to this Agreement;\nbreach of implied contract; or any other statute or common law principle of similar effect.\n7.2\nEither party may commence the non-binding mediation process called for in this Dispute Resolution Agreement by providing written\nnotice upon the\nPage 7\nother party as set forth in paragraph 8.10 of this Agreement. The parties will then agree to submit the claim to a mediator mutually\nagreed upon by the Bank and Employee. The parties will cooperate with one another and with the non-binding mediator, in selecting a\nmediator, and in scheduling the mediation.\n7.3\nThe Bank shall pay all of the fees and costs of the non-binding mediation and will pay for its own attorney's fees and will not request any\nfees or costs from the Employee. Should the Employee retain legal counsel, the cost of such legal counsel shall be the sole responsibility\nof the Employee.\n7.4\nIf the parties fail to resolve their dispute, claim or controversy in non-binding mediation as set forth in paragraphs 7.1-7.3, above, then\nthe Bank and Employee agree to submit such dispute, claim or controversy to final and binding arbitration, by an arbitrator or association\nmutually agreed upon by the Bank and Employee. The disputes, claims and controversies to be submitted to arbitration include, but are\nnot limited to, claims arising from the California Constitution; Title VII of the Civil Rights Act of 1964 (42 U.S.C. 82000e); the\nCalifornia Fair Employment and Housing Act (Cal.Govt. Code 812900 et seq.); the Americans with Disabilities Act; the Age\nDiscrimination in Employment Act (29 U.S.C. 88 621-633a); the Older Workers' Benefit Protection Act; and claims of intentional\ninfliction of emotional distress; breach of contract including but not limited to this Agreement; breach of implied contract; or any other\nstatute or common law principle of similar effect.\n7.5 Either party may commence the arbitration process called for in this Dispute Resolution Agreement by first filing a demand upon the\nother party. The parties will then agree to submit the claim to the arbitrator or association mutually agreed upon by the Bank and\nEmployee. Thereafter, the demand shall be filed with the arbitrator or association mutually agreed upon. The arbitration will be\nconducted in accordance with provisions set forth by such individual or organization, that are in effect at the time of filing the demand\nfor arbitration. The parties will cooperate with one another and with the arbitrator or association, in selecting an arbitrator, and in\nscheduling the arbitration proceedings. The arbitrator will issue a written award discussing the facts and the law. The arbitrator shall have\nthe authority to provide for all types of relief that would otherwise be available in court.\n7.6 For purposes of the arbitration, the parties are entitled to file responsive pleadings, cross complaints, demurrers, motions to strike,\nmotions for summary judgment and motions for judgment on the pleadings pursuant to the California Rules of Civil Procedure Code and\nthe California Evidence Code. The parties are entitled to conduct discovery pursuant to the California Code of Civil Procedure.\n7.7\nThe Bank shall pay all of the fees and costs of the arbitration and will pay for its own attorney's fees and will not request any fees or\ncosts from the Employee. Should the Employee retain legal counsel, the cost of such legal counsel shall be the sole responsibility of the\nEmployee.\nPage 8\n7.8 Employee Acknowledgment. By initialing in the space below you are agreeing to have all disputes, claims or controversies arising out of\nor relating to your employment decided by neutral arbitration, and you are giving up any rights you might possess to have those matters\nlitigated in court or jury trial. By initialing in the space below you are giving up your judicial right to appeal. If you refuse to submit to\narbitration after agreeing to this provision, you may be compelled to arbitrate under federal or state law. Your agreement to this\narbitration provision is voluntary.\nI have read and understand the foregoing and agree to submission of all disputes, claims or controversies arising out of or relating to this\nagreement to neutral arbitration in accordance with this agreement.\nEMPLOYEE\nTHE BANK\n7.9 Employee has been advised to seek the advice of an attorney regarding the legal effect of this agreement prior to signing it. The\nEmployee specifically acknowledges that the Employee is entering into this agreement voluntarily and has not been coerced into signing\nthe agreement.\n8.\nARTICLE 8 - MISCELLANEOUS\n8.1 Severable Provisions. The provisions of this Agreement are separate and distinct, and if any provisions are determined to be\nunenforceable, in whole or in part, the remaining provisions, and the enforceable parts of any partially unenforceable provisions, shall\nnevertheless be enforceable.\n8.2\nIndemnification. The Bank and Employee are entering into an indemnification agreement in the form attached hereto as Exhibit "A."\nAny payments made to Employee pursuant to such indemnification agreement are subject to and conditioned upon compliance with 12\nC.F.R. Section 545.121, and any rules or regulations promulgated thereunder.\n8.3\nSuccessors and Assigns. The Bank shall require any successor or assignee, whether direct or indirect, by purchase, merger, consolidation,\nor otherwise to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform in writing this\nAgreement in the same manner and to the same extent that the Bank would be required to perform it if no such succession or assignment\nhad taken place. This Agreement shall inure to the benefit of and be binding upon the Bank, its successors and assigns, and upon\nthe\nEmployee and his heirs, executors, administrators and legal representatives. No party to this Agreement may delegate its or his duties\nhereunder without the prior written consent of the other parties to this Agreement.\nPage 9\n8.4 Governing Law. California law shall in all respects govern the validity, construction, and interpretation of this Agreement.\n8.5 Source of Payments. All payments provided in this Agreement shall be timely paid in cash or check from the general funds of the Bank.\nThe Company, however, unconditionally guarantees payment and provision of all amounts and benefits due hereunder to Employee and,\nif such amounts and benefits due from the Bank are not timely paid or provided by the Bank, such amounts and benefits shall be paid or\nprovided by the Company.\n8.6\nIncorporation by. Reference of Relevant Regulatory. Law. This Agreement incorporates by reference all applicable regulatory law,\nincluding but not limited to 12 U.S.C. section 1828(k) and any regulations promulgated under it; 12 U.S.C. section 1818(e); and 12\nC.F.R. section 563.39(b); and all replacement statutes and regulations.\n8.7 Integration. This Agreement, including any documents expressly incorporated into it by the terms of this Agreement, constitute the entire\nagreement between the parties and supersedes all prior oral and written agreements, understandings, negotiations, and discussions\nrelating to the subject matter of this Agreement. With this Agreement the parties rescind any previous employment agreements or\narrangements between themselves.\n8.8 No Oral Modification. Any supplement, modification, waiver, or cancellation of this Agreement is valid only if it is set forth in a writing\nsigned by both parties.\n8.9\nNo Waiver. The waiver of any provision of this Agreement shall not constitute a waiver of any other provision and, unless otherwise\nstated, shall not constitute a continuing waiver.\n8.10 Notices. Any notices required under this Agreement shall be in writing and shall be deemed to have been given (i) if personally\ndelivered, when so delivered, (ii) if mailed, one week after having been placed in the U.S. mail, registered or certified, postage prepaid,\naddressed to the party to whom it is directed at the address listed below, or (iii) if given by facsimile, when the notice is transmitted\nto\nthe facsimile number specified below, and confirmation is received:\nIf to the Bank:\n23901 Calabasas Road, Suite 1050\nCalabasas, CA 91302\nAttention: Chairman, Compensation Committee\nWith a copy to the Chairman of the Board\nTelephone: (818) 223-5474\nFacsimile: (818) 223-5487\nPage 10\nIf to Employee:\nJoseph W. Kiley, III\n14734 Valley Vista Boulevard\nSherman Oak, CA 91403\nTelephone: (818) 783-4334\nFacsimile: (818) 783-4523\n9.\nARTICLE 9 - ADVICE OF COUNSEL\nEach party acknowledges that it has had an opportunity to negotiate, carefully consider, and receive the advice of any attorney of its own choosing\non the terms of this Agreement before signing it. To the extent that any party does not seek the advice of an attorney, it knowingly and freely waives\nsuch a right.\nACCEPTED AND AGREED TO:\nACCEPTED AND AGREED TO:\nTHE BANK\nEMPLOYEE\nDate: December 21, 2005.\nDate: December 21, 2005.\nBy /s/ Larry B. Faigin\nBy /s/ Joseph W. Kiley, III\nLarry B. Faigin\nJoseph W. Kiley, III\nExecutive Vice President\nFirst Bank of Beverly Hills\nPage 11	EX-10.1 2 dex101.htm EMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nEXHIBIT 10.1\nEmployment and Confidentiality Agreement\nThis Employment and Confidentiality Agreement (the “Agreement”) is made between First Bank of Beverly Hills (the “Bank”), a state chartered\nbank, and Joseph W. Kiley, III (the “Employee”). The Bank is an affiliate of Beverly Hills Bancorp, Inc. a Delaware corporation (the “Company”).\nAccordingly, on the basis of the representations, warranties, and covenants contained in this Agreement, the parties agree as follows effective as of\nJanuary 1, 2006 (the “Effective Date”):\n1. ARTICLE 1 – EMPLOYMENT AND TERM\n1.1. The Bank earlier notified Employee that it was not renewing Employee’s employment under the terms of the Employment,\nConfidentiality and Contingent Severance Agreement dated January 1, 2003 (the “Severance Agreement”). Accordingly, Employee’s\nemployment pursuant to that Severance Agreement will expire December 31, 2005. Notwithstanding the fact that the Bank and\nEmployee are entering into a new employment relationship pursuant to this Agreement, the pay and benefits Employee is to receive\nunder the terms of the Severance Agreement pursuant to Section 4.2(b) and (c) thereof shall not be impacted or otherwise affected by\nEmployee’s entering into this Agreement with the Bank and Employee shall begin to receive the pay and benefits outlined in the\nSeverance Agreement as a result of the Bank’s non-renewal of the Severance Agreement commencing on January 1, 2006. Likewise,\nEmployee’s entitlement to receive the 2004 continuous service bonus payments pursuant to the Amended 2004 Annual Incentive Award\nPlan is not altered by this Agreement and thus payable on January 1, 2006.\n1.2. Term. The term of employment under this Agreement shall commence on the Effective Date, and shall continue for a period of twelve\n(12) months thereafter. Either the Bank or Employee may terminate the employment relationship under this Agreement at any time, with\nor without reason, upon thirty (30) days notice to the other. If the Bank provides thirty (30) days notice to terminate the employment\nrelationship, then it will have no further obligation to pay Employee his salary through the remainder of the term of this Agreement. The\nBank may, at its option, offer to continue the employment relationship under this Agreement for an additional 6 month term, upon\nwritten notice to Employee.\n2. ARTICLE 2 – DUTIES OF THE EMPLOYEE\n2.1. Position and Duties. The Bank will employ the Employee as its President and Chief Executive Officer, and Employee accepts such\nemployment, on the terms and conditions set forth in this Agreement. Employee will undertake and\nPage 1\nperform all duties as required of the position. Employee will render such services and perform such duties and acts in connection with\nany aspect of the Bank’s business as may be lawfully required by the management or the Board of Directors of the Bank. Employee shall\nperform the services contemplated herein faithfully, diligently, to the best of Employee’s ability, and in the best interests of the Bank.\nEmployee will also devote his full and exclusive business time and efforts in rendering such services and to the extent of his authority\nwill endeavor to ensure that the Bank is in compliance with all laws, rules, regulations and policies applicable to the Bank. The\nEmployee shall, at all times, adhere to and obey any and all written internal rules and regulations governing the conduct of the Bank’s\nemployees as established and modified from time to time.\n2.2. Exclusive Services. During his employment by the Bank, the Employee shall not, without the express prior written consent of the Board\nof Directors of the Bank, engage directly or indirectly in any outside employment or consulting of any kind, whether or not the\nEmployee receives remuneration for such services. Further, the Employee shall not engage in any activity that would impair the\nEmployee’s ability to act and exercise judgment in the best interest of the Bank.\n2.3. Subpoenas; Cooperation in Defense of the Bank. If the Employee, during employment or thereafter, is served with any subpoena or other\ncompulsory judicial or administrative process calling for production of confidential information or if the Employee is otherwise required\nby law or regulations to disclose confidential information, the Employee will immediately, before making any such production or\ndisclosure, notify the Bank and provide it with such information as may be necessary for the Bank to take such action as the Bank deems\nnecessary to protect its interests. The Employee agrees to cooperate reasonably with the Bank, whether during employment or thereafter,\nin the prosecution or defense of all threatened claims or actual litigation in which the Bank is or may become a party, whether now\npending or hereafter brought, in which the Employee has knowledge of relevant facts or issues. The Employee shall be reimbursed for\nreasonable expenses for travel time due to cooperating with the prosecution or defense of any litigation for the Bank.\n2.4. Other Obligations. The Employee acknowledges that the Bank from time to time may have agreements with other persons or with\nvarious governmental agencies that impose obligations or restrictions on the Bank regarding inventions or creative works made during\nthe course of the Bank’s work under such agreements, or that relate to the confidential nature of such work. The Employee agrees to be\nbound by all such obligations and restrictions of which the Employee is informed by the Bank and to take all action necessary to\ndischarge the obligations of the Bank thereunder.\nPage 2\n3. ARTICLE 3 – COMPENSATION\n3.1. Base Salary. Employee will receive a base salary of $275,000.00 per year, less applicable withholdings. This salary shall be payable\nsemi-monthly in accordance with the Bank’s regular payroll practices.\n3.2. Bank Employee Benefits. Employee will be entitled to participate in the Bank’s employee benefit plans, including the Amended 2004\nAnnual Incentive Award Plan or its successor, 401(k) savings plan, medical, dental, vision, long-term disability, and short term disability\nbenefits or insurance programs on the same basis as any of those benefits or insurance programs are available generally to other officers\nof similar position under the Bank’s then current personnel policies. The Bank and the Company will not, without Employee’s written\nconsent, make any changes in Employee’s rights or benefits thereunder, except to the extent such changes are made applicable to all\nexecutive-level Bank and Company employees on a non-discriminatory basis. The Bank’s obligations to continue coverage of these\nbenefits under Section 4.2(c) of the above-referenced Severance Agreement will be suspended during the period of time Employee\ncontinues his employment pursuant to this Agreement. Upon the termination of Employee’s employment pursuant to this Agreement, the\nBank’s obligations under Section 4.2(c) of the Severance Agreement will commence and continue under the provisions stated therein.\n3.3. Vacation. Employee will be eligible to earn vacation time at a rate of 13.33 hours per month up to a total of 160 hours in the calendar\nyear. Vacation time not used in any calendar year may be carried forward, provided, however, that, once the Employee has accrued 200\nhours, Employee shall not be eligible to accrue additional vacation time until he has taken one or more days of vacation.\n3.4. Reimbursement for Expenses. To the extent Employee incurs necessary and reasonable business expenses in the course of his\nemployment, the Bank will reimburse Employee for such expenses, subject to the Bank’s then current policies regarding reimbursement\nof such business expenses.\n3.5. Indemnity and Insurance. Employee shall receive all benefits and privileges to which the Employee is entitled by law or pursuant to the\nBylaws of the Bank or the Company.\n3.6. 2005 Bonus Payment. Employee will be eligible to receive a 2005 bonus in the amount of $175,000.00 pursuant to the Amended 2004\nAnnual Incentive Award Plan approved by the Board on February 4, 2005. Said bonus payment will be made to Employee on or before\nMarch 15, 2006.\n3.7. Continuous Service Bonus Eligibility. Employee will be eligible to receive a continuous service bonus in the amount of $75,000.00 if\nEmployee remains employed through June 30, 2006. If the Bank terminates Employee’s employment pursuant to this Agreement at any\ntime prior to June 30, 2006, Employee will remain eligible to receive this continuous service bonus payment. Should Employee\nterminate his employment relationship with the Bank prior to\nPage 3\nJune 30, 2006, Employee will forfeit his eligibility for the continuous service bonus payment. If Employee is terminated for “cause” as\ndefined in Section 4.1 of this Agreement prior to June 30, 2006, then Employee is not entitled to and forfeits his eligibility for the\ncontinuous service bonus set forth in this Section 3.7. If Employee remains employed with the Bank after June 30, 2006, then, at the\nBank’s Board of Directors’ sole discretion, Employee may be provided a Bonus Opportunity in addition to the bonus mentioned in this\nSection 3.7 as provided in Section 3.2 .\n4. ARTICLE 4 – TERMINATION FOR CAUSE\n4.1 Termination for Cause. Termination for cause shall mean termination because of Employee’s incompetence, personal dishonesty, willful\nmisconduct, any breach of fiduciary duty involving personal profit, habitual neglect of duties, intentional failure to perform stated duties,\nwillful violation of any material law, rule or regulation, order or material breach of any employment policy of the Bank or any material\nbreach of any provision of this Agreement. Written notice delivered to Employee is a prerequisite to Termination for Cause and such\ntermination shall be effective on the delivery date of the written notice. Employee shall have the right to receive compensation or other\nbenefits which have already vested or been earned as of the date of notice of Termination for Cause, unless expressly prohibited by the\nterms of any plan, program or agreement governing such compensation or benefits. Employee shall receive no other compensation or\nseverance pay in the event of Termination for Cause.\n5. ARTICLE 5 – CONFIDENTIALITY AND NON-SOLICITATION\n5.1. Non-disclosure of Confidential and Trade Secret Information. Employee acknowledges that, in the course of employment with the Bank,\nEmployee will have access to and learn confidential information. Confidential information includes but is not limited to information\nabout the Bank’s borrowers and clients, the terms and conditions under which the Bank or its affiliates deal with borrowers and clients,\npricing information for the purchase or sale of assets, financing and securitization arrangements, research materials, manuals, computer\nprograms, formulas analyzing assets portfolios, techniques, data, marketing plans and tactics, technical information, lists of asset\nsources, the processes and practices of the Bank and related companies, information contained in electronic or computer files, financial\ninformation, salary and wage information, and other information that is designated by the Bank or its affiliates as confidential or that\nEmployee knows or should know is confidential information provided by third parties that the Bank or its affiliates are obligated to keep\nconfidential and all other proprietary information of the Bank or its affiliates. Employee acknowledges that all confidential information is\nand shall continue to be the exclusive property of the Bank or its affiliates, whether or not prepared in whole or in part by the Employee\nand whether or not disclosed to or entrusted to the Employee in connection with employment by the Bank. Employee agrees not to\nPage 4\ndisclose confidential information, directly or indirectly, under any circumstances or by any means, to any third persons without the prior\nwritten consent of the Bank. Employee agrees that he will not copy, transmit, reproduce, summarize, quote, or make any commercial or\nother use whatsoever of confidential information, except as may be necessary to perform work done by Employee for the Bank.\nEmployee agrees to exercise the highest degree of care in safeguarding confidential information against loss, theft or other inadvertent\ndisclosure and agrees generally to take all steps necessary or requested by the Bank to ensure maintenance of the confidentiality of the\nconfidential information. Employee agrees in addition to the specific covenants contained herein to comply with all of the Bank’s\npolicies and procedures, as well as all applicable laws, for the protection of confidential information.\n5.2. Exclusions. Section 5.1 shall not apply to the following information: (a) information now or hereafter voluntarily disseminated by the\nBank to the public or which otherwise becomes part of the public domain through lawful means; (b) information already known to the\nEmployee as documented by written records which predate Employee’s employment with the Bank; (c) information subsequently and\nrightfully received from third parties and not subject to any obligation of confidentiality; or (d) information independently developed by\nEmployee after termination of his employment.\n5.3. Confidential Proprietary and Trade Secret Information of Others. Employee represents that he has disclosed to the Bank any agreement\nto which Employee is or has been a party regarding the confidential information of others and Employee understands that Employee’s\nemployment by the Bank will not require Employee to breach any such agreement. Employee will not disclose such confidential\ninformation to the Bank nor induce the Bank to use any trade secret proprietary information received from another under an agreement\nor understanding prohibiting such use or disclosure.\n5.4. Non-solicitation of Employees. During the period of twelve (12) months after termination of this Agreement, Employee shall not directly\nor indirectly solicit for employment or for independent contractor work any employee of the Bank or the Company, and shall not\nencourage any such employee to leave the employment of the Bank or the Company.\n5.5. Company to Benefit from Provisions. To the extent any provisions of this Article 5 relates in any way to confidential information and\ntrade secrets of the Company, then the obligations of Employee set forth in this Article 5 shall also extend to the Company and inure to\nits benefit.\n6. ARTICLE 6 – BANK’S OWNERSHIP IN EMPLOYEE’S WORK\n6.1. Bank’s Ownership. The Employee agrees that all inventions, discoveries, improvements, trade secrets, formulas, techniques, mask\nworks, processes, and\nPage 5\nknow-how, whether or not patentable, and whether or not reduced to practice, that are conceived or developed during the Employee’s\nemployment with the Bank, either alone or jointly with others, or relating to the Bank or to the banking industry shall be owned\nexclusively by the Bank, and the Employee hereby assigns to the Bank all Employee’s right, title, and interest in all such intellectual\nproperty. The Employee agrees that the Bank shall be the sole owner of all rights pertaining thereto, including but not limited to domestic\nand foreign patents or other rights pertaining thereto, and further agrees to execute all documents that the Bank reasonably determines to\nbe necessary or convenient for use in applying for, prosecuting, perfecting, or enforcing patents or other intellectual property rights,\nincluding the execution of any assignments, patents applications, or other documents that Bank may reasonably request. The Employee\nshall claim no interest in any inventions, copyrighted material, mask works, patents, or patent applications unless the Employee\ndemonstrates that any such invention, copyrighted material, mask, work, patent, or patent application was developed before he began any\nemployment with the Bank. This provision is intended to apply only to the extent permitted by applicable law.\n6.2. Statutory Limitation on Assignment. The Employee understands that the Bank is hereby advising the Employee that any provision in this\nAgreement requiring the Employee to assign rights in any invention does not apply to an invention that qualifies fully under the\nprovisions of Section 2870 of the California Labor Code. That Section provides, as follows:\n(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her\nrights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her\nown time without using the employer’s equipment, supplies, facilities, or trade secret information, except for those inventions that\neither:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or\ndemonstrably anticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded\nfrom being required to be assigned under subdivision (a), the provision is against the public policy of this state and is\nunenforceable.\nBy signing this Agreement, the Employee acknowledges that this paragraph shall constitute written notice of the provisions of\nSection 2870.\nPage 6\n6.3 Ownership of Records. Any written record that the Employee may maintain of inventions, discoveries, improvements, trade secrets,\nformulae, processes, or know-how, whether or not patentable and whether or not reduced to practice, and any such records relating to\noriginal works of authorship or mask works made by the Employee, alone or jointly with others, in the course of the Employee’s\nemployment with the Bank shall remain the property of the Bank. The Employee shall furnish the Bank any and all such records\nimmediately upon request.\n6.4 Ownership of Records. If the Employee, during employment with the Bank, is engaged in or associated with the planning or\nimplementation of any project, program, or venture involving the Bank and any third parties, all rights in the project, program, or venture\nshall belong to the Bank, and the Employee shall not be entitled to any interest therein or to any commission, finder’s fee, or other\ncompensation in connection therewith other than the salary to be paid to the Employee as provided in this Agreement.\n6.5 Return of Bank’s Property and Materials. Upon termination of employment with the Bank, Employee shall deliver to the Bank all Bank\nproperty and materials that are in the Employee’s possession or control, including all of the information described as confidential\ninformation in Article 5 of this Agreement and including all other information relating to any inventions, discoveries, improvements,\ntrade secrets, formulae, processes, know-how, original works of authorship, or mask works of the Bank.\n6.6 Company to Benefit from Provisions. To the extent any provisions of this Article 6 relates in any way to information, property, rights,\nprojects, ventures, or inventions of the Company, then the obligations of Employee set forth in this Article 6 shall also extend to the\nCompany and inure to its benefit.\n7. ARTICLE 7 – DISPUTE RESOLUTION AGREEMENT\n7.1 In the event of any dispute, claim or controversy between the Bank and Employee, both parties agree to initially submit such dispute,\nclaim or controversy to non-binding mediation, by a mediator mutually agreed upon by the Bank and Employee. The disputes, claims\nand controversies to be submitted to mediation include, but are not limited to, claims arising from the California Constitution; Title VII\nof the Civil Rights Act of 1964 (42 U.S .C. §2000e); the California Fair Employment and Housing Act (Cal.Govt. Code §12900 et seq.);\nthe Americans with Disabilities Act; the Age Discrimination in Employment Act (29 U.S .C. §§ 621-633a); the Older Workers’ Benefit\nProtection Act; and claims of intentional infliction of emotional distress; breach of contract including but not limited to this Agreement;\nbreach of implied contract; or any other statute or common law principle of similar effect.\n7.2 Either party may commence the non-binding mediation process called for in this Dispute Resolution Agreement by providing written\nnotice upon the\nPage 7\nother party as set forth in paragraph 8.10 of this Agreement. The parties will then agree to submit the claim to a mediator mutually\nagreed upon by the Bank and Employee. The parties will cooperate with one another and with the non-binding mediator, in selecting a\nmediator, and in scheduling the mediation.\n7.3 The Bank shall pay all of the fees and costs of the non-binding mediation and will pay for its own attorney’s fees and will not request any\nfees or costs from the Employee. Should the Employee retain legal counsel, the cost of such legal counsel shall be the sole responsibility\nof the Employee.\n7.4 If the parties fail to resolve their dispute, claim or controversy in non-binding mediation as set forth in paragraphs 7.1-7.3, above, then\nthe Bank and Employee agree to submit such dispute, claim or controversy to final and binding arbitration, by an arbitrator or association\nmutually agreed upon by the Bank and Employee. The disputes, claims and controversies to be submitted to arbitration include, but are\nnot limited to, claims arising from the California Constitution; Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e); the\nCalifornia Fair Employment and Housing Act (Cal.Govt. Code §12900 et seq.); the Americans with Disabilities Act; the Age\nDiscrimination in Employment Act (29 U.S.C. §§ 621-633a); the Older Workers’ Benefit Protection Act; and claims of intentional\ninfliction of emotional distress; breach of contract including but not limited to this Agreement; breach of implied contract; or any other\nstatute or common law principle of similar effect.\n7.5 Either party may commence the arbitration process called for in this Dispute Resolution Agreement by first filing a demand upon the\nother party. The parties will then agree to submit the claim to the arbitrator or association mutually agreed upon by the Bank and\nEmployee. Thereafter, the demand shall be filed with the arbitrator or association mutually agreed upon. The arbitration will be\nconducted in accordance with provisions set forth by such individual or organization, that are in effect at the time of filing the demand\nfor arbitration. The parties will cooperate with one another and with the arbitrator or association, in selecting an arbitrator, and in\nscheduling the arbitration proceedings. The arbitrator will issue a written award discussing the facts and the law. The arbitrator shall have\nthe authority to provide for all types of relief that would otherwise be available in court.\n7.6 For purposes of the arbitration, the parties are entitled to file responsive pleadings, cross complaints, demurrers, motions to strike,\nmotions for summary judgment and motions for judgment on the pleadings pursuant to the California Rules of Civil Procedure Code and\nthe California Evidence Code. The parties are entitled to conduct discovery pursuant to the California Code of Civil Procedure.\n7.7 The Bank shall pay all of the fees and costs of the arbitration and will pay for its own attorney’s fees and will not request any fees or\ncosts from the Employee. Should the Employee retain legal counsel, the cost of such legal counsel shall be the sole responsibility of the\nEmployee.\nPage 8\n7.8 Employee Acknowledgment. By initialing in the space below you are agreeing to have all disputes, claims or controversies arising out of\nor relating to your employment decided by neutral arbitration, and you are giving up any rights you might possess to have those matters\nlitigated in court or jury trial. By initialing in the space below you are giving up your judicial right to appeal. If you refuse to submit to\narbitration after agreeing to this provision, you may be compelled to arbitrate under federal or state law. Your agreement to this\narbitration provision is voluntary.\nI have read and understand the foregoing and agree to submission of all disputes, claims or controversies arising out of or relating to this\nagreement to neutral arbitration in accordance with this agreement.\nEMPLOYEE\nTHE BANK\n7.9 Employee has been advised to seek the advice of an attorney regarding the legal effect of this agreement prior to signing it. The\nEmployee specifically acknowledges that the Employee is entering into this agreement voluntarily and has not been coerced into signing\nthe agreement.\n8. ARTICLE 8 – MISCELLANEOUS\n8.1 Severable Provisions. The provisions of this Agreement are separate and distinct, and if any provisions are determined to be\nunenforceable, in whole or in part, the remaining provisions, and the enforceable parts of any partially unenforceable provisions, shall\nnevertheless be enforceable.\n8.2 Indemnification. The Bank and Employee are entering into an indemnification agreement in the form attached hereto as Exhibit “A.”\nAny payments made to Employee pursuant to such indemnification agreement are subject to and conditioned upon compliance with 12\nC.F.R. Section 545.121, and any rules or regulations promulgated thereunder.\n8.3 Successors and Assigns. The Bank shall require any successor or assignee, whether direct or indirect, by purchase, merger, consolidation,\nor otherwise to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform in writing this\nAgreement in the same manner and to the same extent that the Bank would be required to perform it if no such succession or assignment\nhad taken place. This Agreement shall inure to the benefit of and be binding upon the Bank, its successors and assigns, and upon the\nEmployee and his heirs, executors, administrators and legal representatives. No party to this Agreement may delegate its or his duties\nhereunder without the prior written consent of the other parties to this Agreement.\nPage 9\n8.4 Governing Law. California law shall in all respects govern the validity, construction, and interpretation of this Agreement.\n8.5 Source of Payments. All payments provided in this Agreement shall be timely paid in cash or check from the general funds of the Bank.\nThe Company, however, unconditionally guarantees payment and provision of all amounts and benefits due hereunder to Employee and,\nif such amounts and benefits due from the Bank are not timely paid or provided by the Bank, such amounts and benefits shall be paid or\nprovided by the Company.\n8.6 Incorporation by Reference of Relevant Regulatory Law. This Agreement incorporates by reference all applicable regulatory law,\nincluding but not limited to 12 U.S.C. section 1828(k) and any regulations promulgated under it; 12 U.S .C. section 1818(e); and 12\nC.F.R. section 563.39(b); and all replacement statutes and regulations.\n8.7 Integration. This Agreement, including any documents expressly incorporated into it by the terms of this Agreement, constitute the entire\nagreement between the parties and supersedes all prior oral and written agreements, understandings, negotiations, and discussions\nrelating to the subject matter of this Agreement. With this Agreement the parties rescind any previous employment agreements or\narrangements between themselves.\n8.8 No Oral Modification. Any supplement, modification, waiver, or cancellation of this Agreement is valid only if it is set forth in a writing\nsigned by both parties.\n8.9 No Waiver. The waiver of any provision of this Agreement shall not constitute a waiver of any other provision and, unless otherwise\nstated, shall not constitute a continuing waiver.\n8.10 Notices. Any notices required under this Agreement shall be in writing and shall be deemed to have been given (i) if personally\ndelivered, when so delivered, (ii) if mailed, one week after having been placed in the U.S. mail, registered or certified, postage prepaid,\naddressed to the party to whom it is directed at the address listed below, or (iii) if given by facsimile, when the notice is transmitted to\nthe facsimile number specified below, and confirmation is received:\nIf to the Bank:\n23901 Calabasas Road, Suite 1050\nCalabasas, CA 91302\nAttention: Chairman, Compensation Committee\nWith a copy to the Chairman of the Board\nTelephone: (818) 223-5474\nFacsimile: (818) 223-5487\nPage 10\nIf to Employee:\nJoseph W. Kiley, III\n14734 Valley Vista Boulevard\nSherman Oak, CA 91403\nTelephone: (818) 783-4334\nFacsimile: (818) 783-4523\n9. ARTICLE 9 – ADVICE OF COUNSEL\nEach party acknowledges that it has had an opportunity to negotiate, carefully consider, and receive the advice of any attorney of its own choosing\non the terms of this Agreement before signing it. To the extent that any party does not seek the advice of an attorney, it knowingly and freely waives\nsuch a right.\nACCEPTED AND AGREED TO:\nACCEPTED AND AGREED TO:\nTHE BANK\nEMPLOYEE\nDate: December 21, 2005.\nDate: December 21, 2005.\nBy /s/ Larry B. Faigin\nBy /s/ Joseph W. Kiley, III\nLarry B. Faigin\nJoseph W. Kiley, III\nExecutive Vice President\nFirst Bank of Beverly Hills\nPage 11
+d14ccc86989f0ebb66cf2cedd1085b98.pdf	effective_date jurisdiction party term	EX-99.(E)(2) 2 a2226442zex-99_e2.htm EX-99.(E)(2)\nExhibit (e)(2)\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (“Agreement”) is entered into effective as of March 16, 2015 (the “Effective Date”) by and between\nGalil Medical, Inc., and Perseon Corporation, a Delaware corporation. The parties wish to protect and preserve the confidential and/or\nproprietary nature of information and materials that may be disclosed or made available to each other in connection with certain discussions,\nnegotiations or dealings between the parties relating to one or more possible business transactions or business relationships (the “Purpose”). In\nconsideration of the foregoing and the rights and obligations set forth herein, both parties hereby agree as follows:\n1.\nPROPRIETARY INFORMATION.\n“Proprietary Information” means any and all information and material disclosed by the disclosing party or any parent company, subsidiary or\nother affiliate of the disclosing party (“Discloser”) to the receiving party (“Recipient”) (whether in writing, or in oral, graphic, electronic or any\nother form). Proprietary Information, includes, without limitation, any (a) trade secret, know-how, idea, invention, process, technique, algorithm,\nprogram (whether in source code or object code form), hardware, device, design, schematic, drawing, formula, data, plan, strategy and forecast\nof, and (b) technical, engineering, manufacturing, product, marketing, servicing, pricing, financial, personnel and other information and materials\nof, Discloser and its employees, consultants, investors, affiliates, licensors, suppliers, vendors, customers, clients and other persons and entities.\n2.\nNON-DISCLOSURE AND LIMITED USE.\nRecipient shall hold all Proprietary Information in strict confidence and shall not disclose any Proprietary Information to any third party, other\nthan to its employees, agents, consultants, subsidiaries and other affiliates who need to know such information and who are bound by restrictions\nregarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Recipient shall not use any\nProprietary Information for the benefit of itself or any third party or for any purpose other than the Purpose. Recipient shall take the same degree\nof care that it uses to protect its own confidential and proprietary information and materials of similar nature and importance (but in no event less\nthan reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Proprietary\nInformation. Recipient shall not make any copies of the Proprietary Information except to the extent reasonably necessary to carry out the\nPurpose, or unless otherwise approved in writing in advance by Discloser. Recipient shall not decompile, disassemble or otherwise reverse\nengineer any Proprietary Information or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or\ntechniques embodied in any Proprietary Information or any portion thereof. If the parties mutually agree to enter into or continue a business\nrelationship or other arrangement relating to the Purpose and do not enter into a new confidentiality agreement, the terms and conditions set forth\nherein shall also apply to any information and/or materials related to, or activities undertaken in connection with, carrying out such business\nrelationship or other arrangement, unless otherwise agreed to by the parties in\n1\nwriting. Except as required by law or as reasonably required to assert its rights hereunder, neither party shall disclose to any third party, other\nthan to its employees, agents, consultants, subsidiaries and other affiliates who need to know such information and who are bound by restrictions\nregarding disclosure and use of such information comparable to and no less restrictive than those set forth herein, the existence or substance of\nthe discussions between the parties or any terms of this Agreement or any related agreement between the parties (or any matters relating thereto),\nwithout the prior written consent of the other party. For purposes of this Agreement, an “affiliate” includes, without limitation, any entity that on\nor after the date of this Agreement controls, is controlled by or is under common control with a party. The obligations of this Section 2 with\nrespect to any item of Proprietary Information shall survive any termination or expiration of this Agreement for three years.\n3.\nSCOPE.\nThe obligations of this Agreement, including the restrictions on disclosure and use, shall not apply with respect to any Proprietary Information to\nthe extent such Proprietary Information: (a) is or becomes publicly known through no act or omission of Recipient; (b) was rightfully known by\nRecipient before receipt from Discloser, as evidenced by Recipient’s contemporaneous written records; (c) becomes rightfully known to\nRecipient without confidential or proprietary restriction from a source other than Discloser that does not owe a duty of confidentiality to\nDiscloser with respect to such Proprietary Information; or (d) is independently developed by Recipient without the use of or reference to the\nProprietary Information of Discloser, as evidenced by Recipient’s contemporaneous written records. In addition, Recipient may use or disclose\nProprietary Information to the extent (i) approved by Discloser, or (ii) Recipient is legally compelled to disclose such Proprietary Information,\nprovided, however, that prior to any such compelled disclosure, Recipient shall give Discloser reasonable notice of any such disclosure and shall\ncooperate with Discloser in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure\nand/or use of the Proprietary Information.\n4.\nOWNERSHIP.\nAll Proprietary Information of Discloser (including, without limitation, all copies, extracts and portions thereof) is and shall remain the sole\nproperty of Discloser. Recipient does not acquire (by license or otherwise, whether express or implied) any intellectual property rights or other\nrights under this Agreement or any disclosure hereunder, except the limited right to use such Proprietary Information in accordance with the\nexpress provisions of this Agreement. All rights relating to the Proprietary Information that are not expressly granted hereunder to Recipient are\nreserved and retained by Discloser.\n5.\nNO WARRANTY.\nExcept as may be otherwise agreed to in writing, no warranties of any kind, whether express or implied, are given by Discloser with respect to\nany Proprietary Information or any use thereof, and the Proprietary Information is provided on an “AS IS” basis. Discloser hereby expressly\ndisclaims all such warranties, including any implied warranties of merchantability and fitness for\n2\na particular purpose and any warranties arising out of course of performance, course of dealing or usage of trade,\n6.\nTERMINATION.\nEither party may terminate this Agreement at any time upon written notice to the other party, and neither party shall have any obligation to\ndisclose any Proprietary Information or to continue discussions relating to, or to enter into or continue any arrangement or agreement relating to,\nthe Purpose or any other matter, except as agreed in writing by the parties. Any provisions of this Agreement, which are intended by their\nspecific terms or by necessary implication, to survive the expiration or termination of this Agreement shall so survive.\n7.\nREMEDIES.\nRecipient agrees that, due to the unique nature of the Proprietary Information, the unauthorized disclosure or use of the Proprietary Information\nof Discloser may cause irreparable harm and significant injury to Discloser, the extent of which may be difficult to ascertain and for which there\nmay be no adequate remedy at law. Accordingly, Recipient agrees that Discloser, in addition to any other available remedies, shall have the right\nto seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Agreement. Recipient shall notify\nDiscloser in writing immediately upon Recipient’s becoming aware of any such breach or threatened breach.\n8.\nRETURN OF MATERIALS.\nUpon any termination of discussions or any business relationship between the parties related to the Purpose, or of this Agreement, or at any time\nat Discloser ’s request, (a) Recipient shall promptly return to Discloser or destroy all materials (in written, electronic or other form) containing or\nconstituting Proprietary Information of Discloser, including any copies and extracts thereof, and (b) Recipient shall not use such Proprietary\nInformation in any way for any purpose.\n9.\nATTORNEY-CLIENT PRIVILEGED INFORMATION\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Proprietary Information provided by the Discloser that is\nentitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such\nprotection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this agreement obligates any party to reveal\nmaterial subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\n3\n10.\nREGULATION FD CONFIDENTIALITY AGREEMENT\nThe parties acknowledge that they are aware, and that they will advise their representatives who are informed as to the matters which are the\nsubject of this Agreement, (i) that the United States securities laws prohibit any person who has received from an issuer material, non-public\ninformation concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell securities and (ii) that they are familiar with the Securities Exchange Act of 1934 (the “Exchange Act”), and the rules and\nregulations promulgated thereunder, and they agree that they will neither use nor cause any person to use any Proprietary Information in\ncontravention of the Exchange Act or such rules and regulations, including without limitation Rules 10b-5 and 14e-3 . This Agreement is a\nconfidentiality agreement for purposes of Regulation FD.\n11.\nMISCELLANEOUS.\nThis Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or\ncontemporaneous representations, negotiations, conditions, communications and agreements, whether oral or written, between the parties relating\nto the subject matter hereof and all past courses of dealing or industry custom. No amendment, modification or waiver of any provision of this\nAgreement shall be effective unless in writing and signed by duly authorized signatories of both parties. The waiver by either party of a default\nunder any provision of this Agreement shall not be construed as a waiver of any subsequent default under the same or any other provision of this\nAgreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have\nhereunder operate as a waiver of any right or remedy. Any lawsuit, action or proceeding arising out of or relating to this Agreement shall be\ndecided in accordance with the laws of the State of Utah, without giving effect to principles of conflicts of laws. Any lawsuit, action or\nproceeding arising out of or relating to this Agreement shall be commenced in a federal or state court located in the County of Salt Lake, Utah,\nand each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such lawsuit, action or proceeding. This\nAgreement and the rights and obligations hereunder may not be assigned or delegated by either party, in whole or part, without the prior written\nconsent of the other party. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their\nrespective successors and permitted assigns. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of\ncompetent jurisdiction to be invalid or unenforceable, the remaining portions hereof shall remain in full force and effect and such provision shall\nbe enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed to the extent necessary to make such\nprovision valid and enforceable. The parties are independent contractors, and neither party shall have any authority of any kind to bind the other\nparty in any respect whatsoever. Each party shall comply with all applicable laws and regulations in connection with any acts or omissions under\nor relating to this Agreement, including, without limitation, all laws and regulations relating to the export of technical data or products. This\nAgreement may be executed (including, without limitation, by facsimile signature or electronic signature) in one or more counterparts, with the\nsame effect as if the parties bad signed the same document. Each counterpart so executed shall be deemed to be an\n4\noriginal, and all such counterparts shall be construed together and shall constitute one Agreement.\n[RECIPIENT]\nPerseon Corporation\nBy: /s/ Scott P. Youngstrom\nBy: /s/ William S. Barth\nName: Scott P. Youngstrom\nName: William S. Barth\nTitle: VP-Finance, Chief Financial Officer\nTitle: CFO\n5	EX-99.(E)(2) 2 a2226442zex-99_e2.htm EX-99.(E)(2)\nExhibit (e)(2)\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (“Agreement”) is entered into effective as of March 16, 2015 (the “Effective Date”) by and between\nGalil Medical, Inc., and Perseon Corporation, a Delaware corporation. The parties wish to protect and preserve the confidential and/or\nproprietary nature of information and materials that may be disclosed or made available to each other in connection with certain discussions,\nnegotiations or dealings between the parties relating to one or more possible business transactions or business relationships (the “Purpose”). In\nconsideration of the foregoing and the rights and obligations set forth herein, both parties hereby agree as follows:\n1. PROPRIETARY INFORMATION.\n“Proprietary Information” means any and all information and material disclosed by the disclosing party or any parent company, subsidiary or\nother affiliate of the disclosing party (“Discloser”) to the receiving party (“Recipient”) (whether in writing, or in oral, graphic, electronic or any\nother form). Proprietary Information, includes, without limitation, any (a) trade secret, know-how, idea, invention, process, technique, algorithm,\nprogram (whether in source code or object code form), hardware, device, design, schematic, drawing, formula, data, plan, strategy and forecast\nof, and (b) technical, engineering, manufacturing, product, marketing, servicing, pricing, financial, personnel and other information and materials\nof, Discloser and its employees, consultants, investors, affiliates, licensors, suppliers, vendors, customers, clients and other persons and entities.\n2. NON-DISCLOSURE AND LIMITED USE.\nRecipient shall hold all Proprietary Information in strict confidence and shall not disclose any Proprietary Information to any third party, other\nthan to its employees, agents, consultants, subsidiaries and other affiliates who need to know such information and who are bound by restrictions\nregarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Recipient shall not use any\nProprietary Information for the benefit of itself or any third party or for any purpose other than the Purpose. Recipient shall take the same degree\nof care that it uses to protect its own confidential and proprietary information and materials of similar nature and importance (but in no event less\nthan reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Proprietary\nInformation. Recipient shall not make any copies of the Proprietary Information except to the extent reasonably necessary to carry out the\nPurpose, or unless otherwise approved in writing in advance by Discloser. Recipient shall not decompile, disassemble or otherwise reverse\nengineer any Proprietary Information or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or\ntechniques embodied in any Proprietary Information or any portion thereof. If the parties mutually agree to enter into or continue a business\nrelationship or other arrangement relating to the Purpose and do not enter into a new confidentiality agreement, the terms and conditions set forth\nherein shall also apply to any information and/or materials related to, or activities undertaken in connection with, carrying out such business\nrelationship or other arrangement, unless otherwise agreed to by the parties in\n \nwriting. Except as required by law or as reasonably required to assert its rights hereunder, neither party shall disclose to any third party, other\nthan to its employees, agents, consultants, subsidiaries and other affiliates who need to know such information and who are bound by restrictions\nregarding disclosure and use of such information comparable to and no less restrictive than those set forth herein, the existence or substance of\nthe discussions between the parties or any terms of this Agreement or any related agreement between the parties (or any matters relating thereto),\nwithout the prior written consent of the other party. For purposes of this Agreement, an “affiliate” includes, without limitation, any entity that on\nor after the date of this Agreement controls, is controlled by or is under common control with a party. The obligations of this Section 2 with\nrespect to any item of Proprietary Information shall survive any termination or expiration of this Agreement for three years.\n3. SCOPE.\nThe obligations of this Agreement, including the restrictions on disclosure and use, shall not apply with respect to any Proprietary Information to\nthe extent such Proprietary Information: (a) is or becomes publicly known through no act or omission of Recipient; (b) was rightfully known by\nRecipient before receipt from Discloser, as evidenced by Recipient’s contemporaneous written records; (c) becomes rightfully known to\nRecipient without confidential or proprietary restriction from a source other than Discloser that does not owe a duty of confidentiality to\nDiscloser with respect to such Proprietary Information; or (d) is independently developed by Recipient without the use of or reference to the\nProprietary Information of Discloser, as evidenced by Recipient’s contemporaneous written records. In addition, Recipient may use or disclose\nProprietary Information to the extent (i) approved by Discloser, or (ii) Recipient is legally compelled to disclose such Proprietary Information,\nprovided, however, that prior to any such compelled disclosure, Recipient shall give Discloser reasonable notice of any such disclosure and shall\ncooperate with Discloser in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure\nand/or use of the Proprietary Information.\n4. OWNERSHIP.\nAll Proprietary Information of Discloser (including, without limitation, all copies, extracts and portions thereof) is and shall remain the sole\nproperty of Discloser. Recipient does not acquire (by license or otherwise, whether express or implied) any intellectual property rights or other\nrights under this Agreement or any disclosure hereunder, except the limited right to use such Proprietary Information in accordance with the\nexpress provisions of this Agreement. All rights relating to the Proprietary Information that are not expressly granted hereunder to Recipient are\nreserved and retained by Discloser.\n5. NO WARRANTY.\nExcept as may be otherwise agreed to in writing, no warranties of any kind, whether express or implied, are given by Discloser with respect to\nany Proprietary Information or any use thereof, and the Proprietary Information is provided on an “AS IS” basis. Discloser hereby expressly\ndisclaims all such warranties, including any implied warranties of merchantability and fitness for\n2\n \na particular purpose and any warranties arising out of course of performance, course of dealing or usage of trade,\n6. TERMINATION.\nEither party may terminate this Agreement at any time upon written notice to the other party, and neither party shall have any obligation to\ndisclose any Proprietary Information or to continue discussions relating to, or to enter into or continue any arrangement or agreement relating to,\nthe Purpose or any other matter, except as agreed in writing by the parties. Any provisions of this Agreement, which are intended by their\nspecific terms or by necessary implication, to survive the expiration or termination of this Agreement shall so survive.\n7. REMEDIES.\nRecipient agrees that, due to the unique nature of the Proprietary Information, the unauthorized disclosure or use of the Proprietary Information\nof Discloser may cause irreparable harm and significant injury to Discloser, the extent of which may be difficult to ascertain and for which there\nmay be no adequate remedy at law. Accordingly, Recipient agrees that Discloser, in addition to any other available remedies, shall have the right\nto seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Agreement. Recipient shall notify\nDiscloser in writing immediately upon Recipient’s becoming aware of any such breach or threatened breach.\n8. RETURN OF MATERIALS.\nUpon any termination of discussions or any business relationship between the parties related to the Purpose, or of this Agreement, or at any time\nat Discloser’s request, (a) Recipient shall promptly return to Discloser or destroy all materials (in written, electronic or other form) containing or\nconstituting Proprietary Information of Discloser, including any copies and extracts thereof, and (b) Recipient shall not use such Proprietary\nInformation in any way for any purpose.\n9. ATTORNEY-CLIENT PRIVILEGED INFORMATION\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Proprietary Information provided by the Discloser that is\nentitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such\nprotection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this agreement obligates any party to reveal\nmaterial subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\n3\n \n10. REGULATION FD CONFIDENTIALITY AGREEMENT\nThe parties acknowledge that they are aware, and that they will advise their representatives who are informed as to the matters which are the\nsubject of this Agreement, (i) that the United States securities laws prohibit any person who has received from an issuer material, non-public\ninformation concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell securities and (ii) that they are familiar with the Securities Exchange Act of 1934 (the “Exchange Act”), and the rules and\nregulations promulgated thereunder, and they agree that they will neither use nor cause any person to use any Proprietary Information in\ncontravention of the Exchange Act or such rules and regulations, including without limitation Rules 10b-5 and 14e-3. This Agreement is a\nconfidentiality agreement for purposes of Regulation FD.\n11. MISCELLANEOUS.\nThis Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or\ncontemporaneous representations, negotiations, conditions, communications and agreements, whether oral or written, between the parties relating\nto the subject matter hereof and all past courses of dealing or industry custom. No amendment, modification or waiver of any provision of this\nAgreement shall be effective unless in writing and signed by duly authorized signatories of both parties. The waiver by either party of a default\nunder any provision of this Agreement shall not be construed as a waiver of any subsequent default under the same or any other provision of this\nAgreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have\nhereunder operate as a waiver of any right or remedy. Any lawsuit, action or proceeding arising out of or relating to this Agreement shall be\ndecided in accordance with the laws of the State of Utah, without giving effect to principles of conflicts of laws. Any lawsuit, action or\nproceeding arising out of or relating to this Agreement shall be commenced in a federal or state court located in the County of Salt Lake, Utah,\nand each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such lawsuit, action or proceeding. This\nAgreement and the rights and obligations hereunder may not be assigned or delegated by either party, in whole or part, without the prior written\nconsent of the other party. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their\nrespective successors and permitted assigns. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of\ncompetent jurisdiction to be invalid or unenforceable, the remaining portions hereof shall remain in full force and effect and such provision shall\nbe enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed to the extent necessary to make such\nprovision valid and enforceable. The parties are independent contractors, and neither party shall have any authority of any kind to bind the other\nparty in any respect whatsoever. Each party shall comply with all applicable laws and regulations in connection with any acts or omissions under\nor relating to this Agreement, including, without limitation, all laws and regulations relating to the export of technical data or products. This\nAgreement may be executed (including, without limitation, by facsimile signature or electronic signature) in one or more counterparts, with the\nsame effect as if the parties bad signed the same document. Each counterpart so executed shall be deemed to be an\n4\n \noriginal, and all such counterparts shall be construed together and shall constitute one Agreement.\n[RECIPIENT] Perseon Corporation\nBy: /s/ Scott P. Youngstrom By:  /s/ William S. Barth\nName: Scott P. Youngstrom Name: William S. Barth\nTitle: VP-Finance, Chief Financial Officer Title: CFO\n	EX-99.(E)(2) 2 a2226442zex-99_e2.htm EX-99.(E)(2)\nExhibit (e)(2)\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement ("Agreement") is entered into effective as of March 16, 2015 (the "Effective Date") by and between\nGalil Medical, Inc., and Perseon Corporation, a Delaware corporation. The parties wish to protect and preserve the confidential and/or\nproprietary nature of information and materials that may be disclosed or made available to each other in connection with certain discussions,\nnegotiations or dealings between the parties relating to one or more possible business transactions or business relationships (the "Purpose"). In\nconsideration of the foregoing and the rights and obligations set forth herein, both parties hereby agree as follows:\n1.\nPROPRIETARY INFORMATION.\n"Proprietary Information" means any and all information and material disclosed by the disclosing party or any parent company, subsidiary or\nother affiliate of the disclosing party ("Discloser") to the receiving party ("Recipient") (whether in writing, or in oral, graphic, electronic or\nany\nother form). Proprietary Information, includes, without limitation, any (a) trade secret, know-how, idea, invention, process, technique, algorithm,\nprogram (whether in source code or object code form), hardware, device, design, schematic, drawing, formula, data, plan, strategy and forecast\nof, and (b) technical, engineering, manufacturing, product, marketing, servicing, pricing, financial, personnel and other information and materials\nof, Discloser and its employees, consultants, investors, affiliates, licensors, suppliers, vendors, customers, clients and other persons and entities.\n2.\nNON-DISCLOSURE AND LIMITED USE.\nRecipient shall hold all Proprietary Information in strict confidence and shall not disclose any Proprietary Information to any third party, other\nthan to its employees, agents, consultants, subsidiaries and other affiliates who need to know such information and who are bound by restrictions\nregarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Recipient shall not use any\nProprietary\nInformation\nfor\nthe\nbenefit\nof\nitself\nor\nany\nthird\nparty\nor\nfor\nany\npurpose\nother\nthan\nthe\nPurpose.\nRecipient\nshall\ntake\nthe\nsame\ndegree\nof care that it uses to protect its own confidential and proprietary information and materials of similar nature and importance (but in no event less\nthan reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Proprietary\nInformation.\nRecipient\nshall\nnot\nmake\nany\ncopies\nof\nthe\nProprietary\nInformation\nexcept\nto\nthe\nextent\nreasonably\nnecessary\nto\ncarry\nout\nthe\nPurpose, or unless otherwise approved in writing in advance by Discloser. Recipient shall not decompile, disassemble or otherwise reverse\nengineer any Proprietary Information or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or\ntechniques embodied in any Proprietary Information or any portion thereof. If the parties mutually agree to enter into or continue a business\nrelationship or other arrangement relating to the Purpose and do not enter into a new confidentiality agreement, the terms and conditions set forth\nherein shall also apply to any information and/or materials related to, or activities undertaken in connection with, carrying out such business\nrelationship or other arrangement, unless otherwise agreed to by the parties in\n1\nwriting. Except as required by law or as reasonably required to assert its rights hereunder, neither party shall disclose to any third party, other\nthan to its employees, agents, consultants, subsidiaries and other affiliates who need to know such information and who are bound by restrictions\nregarding disclosure and use of such information comparable to and no less restrictive than those set forth herein, the existence or substance of\nthe discussions between the parties or any terms of this Agreement or any related agreement between the parties (or any matters relating thereto),\nwithout the prior written consent of the other party. For purposes of this Agreement, an "affiliate" includes, without limitation, any entity that on\nor after the date of this Agreement controls, is controlled by or is under common control with a party. The obligations of this Section 2 with\nrespect to any item of Proprietary Information shall survive any termination or expiration of this Agreement for three years.\n3.\nSCOPE.\nThe obligations of this Agreement, including the restrictions on disclosure and use, shall not apply with respect to any Proprietary Information to\nthe extent such Proprietary Information: (a) is or becomes publicly known through no act or omission of Recipient; (b) was rightfully known by\nRecipient before receipt from Discloser, as evidenced by Recipient's contemporaneous written records; (c) becomes rightfully known to\nRecipient without confidential or proprietary restriction from a source other than Discloser that does not owe a duty of confidentiality to\nDiscloser with respect to such Proprietary Information; or (d) is independently developed by Recipient without the use of or reference to\nthe\nProprietary Information of Discloser, as evidenced by Recipient's contemporaneous written records. In addition, Recipient may use or disclose\nProprietary Information to the extent (i) approved by Discloser, or (ii) Recipient is legally compelled to disclose such Proprietary Information,\nprovided, however, that prior to any such compelled disclosure, Recipient shall give Discloser reasonable notice of any such disclosure and shall\ncooperate with Discloser in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure\nand/or use of the Proprietary Information.\n4.\nOWNERSHIP.\nAll Proprietary Information of Discloser (including, without limitation, all copies, extracts and portions thereof) is and shall remain the sole\nproperty of Discloser. Recipient does not acquire (by license or otherwise, whether express or implied) any intellectual property rights or other\nrights under this Agreement or any disclosure hereunder, except the limited right to use such Proprietary Information in accordance with the\nexpress provisions of this Agreement. All rights relating to the Proprietary Information that are not expressly granted hereunder to Recipient are\nreserved and retained by Discloser.\n5.\nNO WARRANTY.\nExcept as may be otherwise agreed to in writing, no warranties of any kind, whether express or implied, are given by Discloser with respect to\nany Proprietary Information or any use thereof, and the Proprietary Information is provided on an "AS IS" basis. Discloser hereby expressly\ndisclaims all such warranties, including any implied warranties of merchantability and fitness for\n2\na particular purpose and any warranties arising out of course of performance, course of dealing or usage of trade,\n6.\nTERMINATION.\nEither party may terminate this Agreement at any time upon written notice to the other party, and neither party shall have any obligation to\ndisclose any Proprietary Information or to continue discussions relating to, or to enter into or continue any arrangement or agreement relating to,\nthe Purpose or any other matter, except as agreed in writing by the parties. Any provisions of this Agreement, which are intended by their\nspecific terms or by necessary implication, to survive the expiration or termination of this Agreement shall so survive.\n7.\nREMEDIES.\nRecipient agrees that, due to the unique nature of the Proprietary Information, the unauthorized disclosure or use of the Proprietary Information\nof Discloser may cause irreparable harm and significant injury to Discloser, the extent of which may be difficult to ascertain and for which there\nmay be no adequate remedy at law. Accordingly, Recipient agrees that Discloser, in addition to any other available remedies, shall have the right\nto seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Agreement. Recipient shall notify\nDiscloser in writing immediately upon Recipient's becoming aware of any such breach or threatened breach.\n8.\nRETURN OF MATERIALS.\nUpon any termination of discussions or any business relationship between the parties related to the Purpose, or of this Agreement, or at any time\nat Discloser's request, (a) Recipient shall promptly return to Discloser or destroy all materials (in written, electronic or other form) containing or\nconstituting Proprietary Information of Discloser, including any copies and extracts thereof, and (b) Recipient shall not use such Proprietary\nInformation in any way for any purpose.\n9.\nATTORNEY-CLIENT PRIVILEGED INFORMATION\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable\nprivilege\nconcerning\npending\nor\nthreatened\nlegal\nproceedings\nor\ngovernmental\ninvestigations,\nthe\nparties\nunderstand\nand\nagree\nthat\nthey have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Proprietary Information provided by the Discloser that is\nentitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such\nprotection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this agreement obligates any party to reveal\nmaterial subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\n3\n10.\nREGULATION FD CONFIDENTIALITY AGREEMENT\nThe parties acknowledge that they are aware, and that they will advise their representatives who are informed as to the matters which are the\nsubject of this Agreement, (i) that the United States securities laws prohibit any person who has received from an issuer material, non-public\ninformation concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely\nto\npurchase or sell securities and (ii) that they are familiar with the Securities Exchange Act of 1934 (the "Exchange Act"), and the rules and\nregulations promulgated thereunder, and they agree that they will neither use nor cause any person to use any Proprietary Information in\ncontravention of the Exchange Act or such rules and regulations, including without limitation Rules 10b-5 and 14e-3. This Agreement is a\nconfidentiality agreement for purposes of Regulation FD.\n11.\nMISCELLANEOUS.\nThis Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or\ncontemporaneous representations, negotiations, conditions, communications and agreements, whether oral or written, between the parties relating\nto the subject matter hereof and all past courses of dealing or industry custom. No amendment, modification or waiver of any provision of this\nAgreement shall be effective unless in writing and signed by duly authorized signatories of both parties. The waiver by either party of a default\nunder any provision of this Agreement shall not be construed as a waiver of any subsequent default under the same or any other provision of this\nAgreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have\nhereunder operate as a waiver of any right or remedy. Any lawsuit, action or proceeding arising out of or relating to this Agreement shall be\ndecided in accordance with the laws of the State of Utah, without giving effect to principles of conflicts of laws. Any lawsuit, action\nor\nproceeding arising out of or relating to this Agreement shall be commenced in a federal or state court located in the County of Salt Lake, Utah,\nand each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such lawsuit, action or proceeding. This\nAgreement and the rights and obligations hereunder may not be assigned or delegated by either party, in whole or part, without the prior written\nconsent of the other party. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their\nrespective successors and permitted assigns. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of\ncompetent jurisdiction to be invalid or unenforceable, the remaining portions hereof shall remain in full force and effect and such provision shall\nbe enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed to the extent necessary to make such\nprovision valid and enforceable. The parties are independent contractors, and neither party shall have any authority of any kind to bind the other\nparty in any respect whatsoever. Each party shall comply with all applicable laws and regulations in connection with any acts or omissions under\nor relating to this Agreement, including, without limitation, all laws and regulations relating to the export of technical data or products. This\nAgreement may be executed (including, without limitation, by facsimile signature or electronic signature) in one or more counterparts, with the\nsame effect as if the parties bad signed the same document. Each counterpart so executed shall be deemed to be an\n4\noriginal, and all such counterparts shall be construed together and shall constitute one Agreement.\n[RECIPIENT]\nPerseon Corporation\nBy: /s/ Scott P. Youngstrom\nBy:\n/s/ William S. Barth\nName: Scott P. Youngstrom\nName: William S. Barth\nTitle: VP-Finance, Chief Financial Officer\nTitle: CFO\n5	EX-99.(E)(2) 2 a2226442zex-99_e2.htm EX-99.(E)(2)\nExhibit (e)(2)\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (“Agreement”) is entered into effective as of March 16, 2015 (the “Effective Date”) by and between\nGalil Medical, Inc., and Perseon Corporation, a Delaware corporation. The parties wish to protect and preserve the confidential and/or\nproprietary nature of information and materials that may be disclosed or made available to each other in connection with certain discussions,\nnegotiations or dealings between the parties relating to one or more possible business transactions or business relationships (the “Purpose”). In\nconsideration of the foregoing and the rights and obligations set forth herein, both parties hereby agree as follows:\n1.\nPROPRIETARY INFORMATION.\n“Proprietary Information” means any and all information and material disclosed by the disclosing party or any parent company, subsidiary or\nother affiliate of the disclosing party (“Discloser”) to the receiving party (“Recipient”) (whether in writing, or in oral, graphic, electronic or any\nother form). Proprietary Information, includes, without limitation, any (a) trade secret, know-how, idea, invention, process, technique, algorithm,\nprogram (whether in source code or object code form), hardware, device, design, schematic, drawing, formula, data, plan, strategy and forecast\nof, and (b) technical, engineering, manufacturing, product, marketing, servicing, pricing, financial, personnel and other information and materials\nof, Discloser and its employees, consultants, investors, affiliates, licensors, suppliers, vendors, customers, clients and other persons and entities.\n2.\nNON-DISCLOSURE AND LIMITED USE.\nRecipient shall hold all Proprietary Information in strict confidence and shall not disclose any Proprietary Information to any third party, other\nthan to its employees, agents, consultants, subsidiaries and other affiliates who need to know such information and who are bound by restrictions\nregarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Recipient shall not use any\nProprietary Information for the benefit of itself or any third party or for any purpose other than the Purpose. Recipient shall take the same degree\nof care that it uses to protect its own confidential and proprietary information and materials of similar nature and importance (but in no event less\nthan reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Proprietary\nInformation. Recipient shall not make any copies of the Proprietary Information except to the extent reasonably necessary to carry out the\nPurpose, or unless otherwise approved in writing in advance by Discloser. Recipient shall not decompile, disassemble or otherwise reverse\nengineer any Proprietary Information or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or\ntechniques embodied in any Proprietary Information or any portion thereof. If the parties mutually agree to enter into or continue a business\nrelationship or other arrangement relating to the Purpose and do not enter into a new confidentiality agreement, the terms and conditions set forth\nherein shall also apply to any information and/or materials related to, or activities undertaken in connection with, carrying out such business\nrelationship or other arrangement, unless otherwise agreed to by the parties in\n1\nwriting. Except as required by law or as reasonably required to assert its rights hereunder, neither party shall disclose to any third party, other\nthan to its employees, agents, consultants, subsidiaries and other affiliates who need to know such information and who are bound by restrictions\nregarding disclosure and use of such information comparable to and no less restrictive than those set forth herein, the existence or substance of\nthe discussions between the parties or any terms of this Agreement or any related agreement between the parties (or any matters relating thereto),\nwithout the prior written consent of the other party. For purposes of this Agreement, an “affiliate” includes, without limitation, any entity that on\nor after the date of this Agreement controls, is controlled by or is under common control with a party. The obligations of this Section 2 with\nrespect to any item of Proprietary Information shall survive any termination or expiration of this Agreement for three years.\n3.\nSCOPE.\nThe obligations of this Agreement, including the restrictions on disclosure and use, shall not apply with respect to any Proprietary Information to\nthe extent such Proprietary Information: (a) is or becomes publicly known through no act or omission of Recipient; (b) was rightfully known by\nRecipient before receipt from Discloser, as evidenced by Recipient’s contemporaneous written records; (c) becomes rightfully known to\nRecipient without confidential or proprietary restriction from a source other than Discloser that does not owe a duty of confidentiality to\nDiscloser with respect to such Proprietary Information; or (d) is independently developed by Recipient without the use of or reference to the\nProprietary Information of Discloser, as evidenced by Recipient’s contemporaneous written records. In addition, Recipient may use or disclose\nProprietary Information to the extent (i) approved by Discloser, or (ii) Recipient is legally compelled to disclose such Proprietary Information,\nprovided, however, that prior to any such compelled disclosure, Recipient shall give Discloser reasonable notice of any such disclosure and shall\ncooperate with Discloser in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure\nand/or use of the Proprietary Information.\n4.\nOWNERSHIP.\nAll Proprietary Information of Discloser (including, without limitation, all copies, extracts and portions thereof) is and shall remain the sole\nproperty of Discloser. Recipient does not acquire (by license or otherwise, whether express or implied) any intellectual property rights or other\nrights under this Agreement or any disclosure hereunder, except the limited right to use such Proprietary Information in accordance with the\nexpress provisions of this Agreement. All rights relating to the Proprietary Information that are not expressly granted hereunder to Recipient are\nreserved and retained by Discloser.\n5.\nNO WARRANTY.\nExcept as may be otherwise agreed to in writing, no warranties of any kind, whether express or implied, are given by Discloser with respect to\nany Proprietary Information or any use thereof, and the Proprietary Information is provided on an “AS IS” basis. Discloser hereby expressly\ndisclaims all such warranties, including any implied warranties of merchantability and fitness for\n2\na particular purpose and any warranties arising out of course of performance, course of dealing or usage of trade,\n6.\nTERMINATION.\nEither party may terminate this Agreement at any time upon written notice to the other party, and neither party shall have any obligation to\ndisclose any Proprietary Information or to continue discussions relating to, or to enter into or continue any arrangement or agreement relating to,\nthe Purpose or any other matter, except as agreed in writing by the parties. Any provisions of this Agreement, which are intended by their\nspecific terms or by necessary implication, to survive the expiration or termination of this Agreement shall so survive.\n7.\nREMEDIES.\nRecipient agrees that, due to the unique nature of the Proprietary Information, the unauthorized disclosure or use of the Proprietary Information\nof Discloser may cause irreparable harm and significant injury to Discloser, the extent of which may be difficult to ascertain and for which there\nmay be no adequate remedy at law. Accordingly, Recipient agrees that Discloser, in addition to any other available remedies, shall have the right\nto seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Agreement. Recipient shall notify\nDiscloser in writing immediately upon Recipient’s becoming aware of any such breach or threatened breach.\n8.\nRETURN OF MATERIALS.\nUpon any termination of discussions or any business relationship between the parties related to the Purpose, or of this Agreement, or at any time\nat Discloser ’s request, (a) Recipient shall promptly return to Discloser or destroy all materials (in written, electronic or other form) containing or\nconstituting Proprietary Information of Discloser, including any copies and extracts thereof, and (b) Recipient shall not use such Proprietary\nInformation in any way for any purpose.\n9.\nATTORNEY-CLIENT PRIVILEGED INFORMATION\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Proprietary Information provided by the Discloser that is\nentitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such\nprotection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this agreement obligates any party to reveal\nmaterial subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\n3\n10.\nREGULATION FD CONFIDENTIALITY AGREEMENT\nThe parties acknowledge that they are aware, and that they will advise their representatives who are informed as to the matters which are the\nsubject of this Agreement, (i) that the United States securities laws prohibit any person who has received from an issuer material, non-public\ninformation concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell securities and (ii) that they are familiar with the Securities Exchange Act of 1934 (the “Exchange Act”), and the rules and\nregulations promulgated thereunder, and they agree that they will neither use nor cause any person to use any Proprietary Information in\ncontravention of the Exchange Act or such rules and regulations, including without limitation Rules 10b-5 and 14e-3 . This Agreement is a\nconfidentiality agreement for purposes of Regulation FD.\n11.\nMISCELLANEOUS.\nThis Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or\ncontemporaneous representations, negotiations, conditions, communications and agreements, whether oral or written, between the parties relating\nto the subject matter hereof and all past courses of dealing or industry custom. No amendment, modification or waiver of any provision of this\nAgreement shall be effective unless in writing and signed by duly authorized signatories of both parties. The waiver by either party of a default\nunder any provision of this Agreement shall not be construed as a waiver of any subsequent default under the same or any other provision of this\nAgreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have\nhereunder operate as a waiver of any right or remedy. Any lawsuit, action or proceeding arising out of or relating to this Agreement shall be\ndecided in accordance with the laws of the State of Utah, without giving effect to principles of conflicts of laws. Any lawsuit, action or\nproceeding arising out of or relating to this Agreement shall be commenced in a federal or state court located in the County of Salt Lake, Utah,\nand each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such lawsuit, action or proceeding. This\nAgreement and the rights and obligations hereunder may not be assigned or delegated by either party, in whole or part, without the prior written\nconsent of the other party. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their\nrespective successors and permitted assigns. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of\ncompetent jurisdiction to be invalid or unenforceable, the remaining portions hereof shall remain in full force and effect and such provision shall\nbe enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed to the extent necessary to make such\nprovision valid and enforceable. The parties are independent contractors, and neither party shall have any authority of any kind to bind the other\nparty in any respect whatsoever. Each party shall comply with all applicable laws and regulations in connection with any acts or omissions under\nor relating to this Agreement, including, without limitation, all laws and regulations relating to the export of technical data or products. This\nAgreement may be executed (including, without limitation, by facsimile signature or electronic signature) in one or more counterparts, with the\nsame effect as if the parties bad signed the same document. Each counterpart so executed shall be deemed to be an\n4\noriginal, and all such counterparts shall be construed together and shall constitute one Agreement.\n[RECIPIENT]\nPerseon Corporation\nBy: /s/ Scott P. Youngstrom\nBy: /s/ William S. Barth\nName: Scott P. Youngstrom\nName: William S. Barth\nTitle: VP-Finance, Chief Financial Officer\nTitle: CFO\n5
+d2ab0e93655331571e34090f0a6abbdd.pdf	effective_date jurisdiction party term	EX-99.(E)(10) 2 d432563dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit 99(e) (10)\nCONFIDENTIAL\nWilliams Controls, Inc.\n14100 SW 72 Avenue\nPortland, Oregon 97224\nJuly 5, 2012\nMr. Brian Freeman\nCurtiss-Wright Controls, Inc.\n15800 John J. Delaney Dr., Suite 200\nCharlotte, NC 28277\nDear Mr. Watts:\nIn connection with the consideration of a possible negotiated transaction (the “Transaction”) involving Curtiss-Wright Controls, Inc. or its\naffiliates (collectively, “you”) and Williams Controls, Inc., a Delaware corporation (the “Company”), you have requested information regarding the\nCompany. As a condition to any information regarding the Company being furnished to you, you agree to treat any Evaluation Material (as defined\nbelow), and to take or abstain from taking certain other actions, in accordance with the provisions of this letter agreement.\n1. Definitions.\n1.1 Evaluation Material. The term “Evaluation Material” means all information, data, reports, interpretations, forecasts, business plans and\nrecords, financial or otherwise, and whether written, oral, electronic, visual or otherwise (whatever the form or transmission or storage medium),\nconcerning or related to the Company, any of its affiliates, subsidiaries or joint ventures, or any of the businesses, properties, products, intellectual\nproperty, product designs and plans, technical know-how, marketing information, services, costs and pricing information, methods of operation,\nemployees, financial condition, operations, assets, liabilities, results of operations and/or prospects of any of the foregoing (whether prepared by the\nCompany, any of its Representatives (as defined below) or otherwise) that previously has been or may be furnished to you or any of your\nRepresentatives by or on behalf of the Company or any of its Representatives (collectively, “Information”), as well as all notes, analyses,\ncompilations, summaries, extracts, studies, interpretations or other materials prepared by you or any of your Representatives that contain, reflect or\nare based upon, in whole or in part, any such Information, and in each case regardless of whether or not specifically marked as confidential. The\nterm “Evaluation Material” does not include Information that (i) is or becomes generally available to the public (other than as a result of a disclosure\nby you or any of your Representatives in violation of this letter agreement or any other obligation of confidentiality), or (ii) was within your\npossession prior to it being furnished to you by or on behalf of the Company or any of its Representatives (as can be demonstrated by you with dated\nmaterials) or thereafter becomes available to you, in either case without being subject to any contractual, legal, fiduciary or other obligation of\nconfidentiality to the Company or any other person with respect to such Information, or (iii) developed by you independently of the Company as\nsupported by your\nnd\nwritten records. The term “Evaluation Material” shall include, without limitation, the existence of a possible Transaction, your or the Company’s\ninterest in a possible Transaction, the fact that Evaluation Material has been made available to you or any of your Representatives, the fact that\ndiscussions or negotiations have taken place, are taking place or may take place concerning a possible Transaction or any similar transaction or any\nof the terms, conditions or other facts with respect thereto (including, without limitation, the status thereof and any drafts of any term sheets, letters\nof intent or agreements related to the Transaction), and the existence and terms of this letter agreement. You acknowledge and agree that the\nEvaluation Material may include Information made available to the Company or any of its Representatives pursuant to confidentiality agreements or\nother obligations of confidentiality between the Company and/or one or more of its Representatives and third parties.\n1.2 Other Definitions. As used in this letter agreement, (i) the term “Representatives” means, each party’s respective affiliates and joint\nventures and any partners, members, managers, directors, officers, employees, agents, representatives, advisors (including, without limitation,\nfinancial advisors, bankers, consultants, counsel and accountants) thereof, and, subject to the next sentence, financing sources, (ii) the term “person”\nshall be broadly interpreted to include the media and any individual, corporation, partnership, limited liability company, group, governmental\nauthority or other entity, and (iii) the term “affiliate” shall have the meaning ascribed to such term in Rule 12b-2 promulgated under the Securities\nExchange Act of 1934, as amended (the “Exchange Act”). Your or your Representatives’ actual or prospective financing sources for the Transaction\nshall not be deemed “Representatives” unless and until, prior to contacting such financing sources (including for purposes of checking conflicts), the\nCompany has consented in writing to such persons being contacted by you or your Representatives for such purposes.\n2. Evaluation Material.\n2.1 Nondisclosure of Evaluation Material. You hereby agree that you shall, and you shall cause your Representatives to: (i) use the Evaluation\nMaterial solely for the purpose of evaluating your possible participation in the Transaction, (ii) keep the Evaluation Material strictly confidential in\naccordance with the terms of this letter agreement, and (iii) without the prior written consent of the Company, not disclose any of the Evaluation\nMaterial to any person; provided, however, that you may disclose any of the Evaluation Material to your Representatives who need to know such\nInformation for the sole purpose set forth in clause (i) above and who agree to be bound by the terms hereof to the same extent as if they were parties\nhereto. You hereby agree to notify the Company immediately upon discovery of any unauthorized use or disclosure of Evaluation Material or any\nother breach of this letter agreement by you or any of your Representatives, and will cooperate with the Company to assist the Company to regain\npossession of the Evaluation Material and prevent its further unauthorized use or disclosure.\n2.2 Compulsory Disclosure. In the event that you or any of your Representatives receives a request (by deposition, interrogatory, request for\ndocuments, subpoena, civil investigative demand or similar process) to disclose, or is otherwise required by law or any rule of any securities\nexchange to which you or any of your Representatives is subject (“Law”), including, for purposes of accountants, applicable professional standards\nof the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state\n2\nboards of accountancy or obligations thereunder, to disclose, any of the Evaluation Material, you shall (x) provide the Company with prompt written\nnotice of such request or requirement, along with, to the extent applicable, a copy of the request and the proposed disclosure, the circumstances\nsurrounding such request or requirement, the reason that such disclosure is required and the time and place such disclosure is expected to be made, in\neach case with sufficient specificity so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the\nprovisions of this letter agreement, and (y) if requested by the Company, assist the Company in seeking a protective order or other appropriate\nremedy in response to such request or requirement. Without limiting the generality of the foregoing, you shall not, and shall cause your\nRepresentatives not to, oppose any action by the Company to obtain such a protective order or other remedy. Notwithstanding Paragraph 2.1 hereof,\nif, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you are, or any of your Representatives is,\nnonetheless, on the advice of your counsel, required by Law to disclose any Evaluation Material, you or such Representative may disclose to the\napplicable tribunal or other person only that portion of the Evaluation Material which such counsel advises you is required by Law to be disclosed,\nprovided that you, and, if appropriate, such Representative, exercise your reasonable best efforts to continue to preserve, and have such tribunal or\nother person preserve, the confidentiality of such Evaluation Material. Notwithstanding any disclosure of Evaluation Material pursuant to this\nParagraph 2.2, you and your Representatives will continue to be bound by your and their obligations of confidentiality (including, without limitation,\nwith respect to any Evaluation Material disclosed pursuant to this Paragraph 2.2) and other obligations hereunder.\n2.3 Privileges. Neither the Company nor the board of directors of the Company (the “Company Board”) intend to waive, or to cause any of\ntheir Representatives to waive, the attorney-client, attorney work product or other applicable privilege of the Company, the Company Board or any\nof the Company’s subsidiaries, affiliates or joint ventures (any of the foregoing, a “Privilege”) by providing any Evaluation Material subject to a\nPrivilege, and any production by the Company, the Company Board or any of their Representatives of such Information shall be inadvertent.\nAccordingly, you agree that a production to you or any of your Representatives by the Company, the Company Board or any of their Representatives\nof Evaluation Materials protected by a Privilege shall not constitute a waiver of any such Privilege by any person, and you agree that, upon request\nby the Company, the Company Board or any of their Representatives, you will, and you will cause your Representatives to, immediately return\nand/or destroy such inadvertently produced Evaluation Materials.\n2.4 Information Request Procedures; No Contact. You agree that, without the prior written consent of the Company Board, all communications\nfrom you or your Representatives regarding the proposed Transaction, including, without limitation, inquiries, requests for additional information,\nrequests for access to personnel or other business contacts, requests for facility tours or discussions or questions regarding procedures, will be\nsubmitted only to the persons listed in Annex A hereto or to such other person or persons as specifically designated in writing by the Company for\nsuch purposes, except that you or your counsel may direct questions regarding this letter agreement to Davis Wright Tremaine LLP. You agree that\nyou will not, and you will cause your Representatives not to, initiate or maintain contact with (i) subject to the preceding sentence, the Company’s\nRepresentatives, regarding any matters related to the possible Transaction, employment arrangements or understandings, any rollover of equity, the\n3\nprocess or discussions of the Company Board or any related matters, or (ii) any customer, supplier, licensor, licensee or other business partner of the\nCompany or any of its subsidiaries or joint ventures with respect to any matters related to the Company or any of its subsidiaries or joint ventures or\nany of the foregoing persons’ businesses or assets, in either case except with the prior written consent of, and supervision by, the Company Board or\na designated Representative of the Company Board.\n2.5 Return and Destruction of Evaluation Material. If you decide that you do not wish to participate in the Transaction, you will promptly\ninform the Company of that decision. In that case, or at any time upon the request of the Company for any reason, you will promptly (i) deliver to\nthe Company all Evaluation Material furnished by or on behalf of the Company or any of its Representatives and (ii) deliver to the Company or\ndestroy all other Evaluation Material, in each case without keeping any copies, in whole or part thereof in any medium whatsoever; provided,\nhowever, that you and your Representatives shall be entitled to retain the minimum number of copies of the Evaluation Material to the extent\nnecessary to comply with applicable Law, which shall be used solely for such purposes. In the event of such a decision or request, you shall cause\none of your authorized officers to deliver to the Company a certificate stating that you have complied with all of the requirements of this Paragraph\n2.5. Notwithstanding the return or the destruction of the Evaluation Material or the termination of discussions regarding the Transaction, you and\nyour Representatives will continue to be bound by your and their obligations of confidentiality (including, without limitation, with respect to any\nEvaluation Material destroyed or returned pursuant to this Paragraph 2.5 or any Evaluation Material retained pursuant to the proviso to the first\nsentence of this Paragraph 2.5) and other obligations hereunder.\n2.6 Accuracy of Evaluation Material. You understand and agree that none of the Company, the Company Board or any of their Representatives\nis making or shall be deemed to make or have made any representation or warranty, express or implied, as to the accuracy or completeness of the\nEvaluation Material. You agree that none of the Company, the Company Board or any of their Representatives shall have any liability to you or any\nof your Representatives relating to or resulting from the use of the Evaluation Material, including, without limitation, for any conclusions that you,\nany of your Representatives or any other person derive from the Evaluation Material. Only those representations or warranties that are made in a\nfinal definitive written agreement (if any) providing for the Transaction (which, for avoidance of doubt, shall not include a term sheet, letter of intent\nor other similar instrument) (a “Definitive Transaction Agreement”), when, as and if executed and delivered, and subject to such limitations and\nrestrictions as may be specified therein, will have any legal effect.\n2.7 Ownership of Evaluation Material. Nothing herein, nor any disclosure contemplated hereby, shall be deemed to transfer to you or any other\nperson any interest in, or confer in you or any other person any right (including, without limitation, intellectual property right) over, the Evaluation\nMaterial whatsoever beyond those interests and rights expressly provided for in this letter agreement.\n2.8 Term. The obligations of each party hereto set forth in this Paragraph 2 shall terminate and be of no further force or effect on the date that\nis three (3) years from the date hereof.\n4\n3. Non-Solicitation; Non-Hire.\nIn consideration of the Evaluation Material being furnished to you, for a period of two (2) years from the date hereof, you will cause your\nRepresentatives who are aware of this letter agreement (other than third party advisors taking action on behalf of an unrelated person without breach\nof any of the other terms of this letter agreement) not to, directly or indirectly, without obtaining the prior written consent of the Company, solicit for\nemployment any current or former officers, employees or independent contractors of the Company or any of its affiliates or joint ventures (whether\nor not such person would commit any breach of such person’s contract of service in leaving such employment or service); provided, however, that\nthe restriction on solicitation above shall not restrict your ability to conduct generalized searches for officers or employees by use of advertisements\nin periodicals of general circulation.\n4. Standstill; Securities Laws.\n4.1 Standstill. You hereby represent and warrant that you and your affiliates do not beneficially own any shares of the common stock of the\nCompany. In consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of two (2) years from the date\nhereof, unless invited in advance by the Company Board to do so (which invitation will be expressly set forth in a written instrument from, and duly\nauthorized by, the Company Board), you will not, and you will cause your Representatives (other than third party advisors taking action on behalf of\nan unrelated person without breach of any of the other terms of this letter agreement) not to, directly or indirectly, acting alone or as part of a group:\n(i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, (a) any securities (whether equity, debt or otherwise)\nof the Company or any of its subsidiaries (or beneficial ownership thereof, as such term is used pursuant to Rule 13d-3 under the Exchange Act),\n(b) any right to vote or to direct the voting of any voting or equity securities of the Company or any of its subsidiaries, or (c) any direct or indirect\nrights to acquire any securities of the Company or any of its subsidiaries or any derivative securities with economic equivalents of ownership of any\nof such securities; (ii) enter into or agree, offer, propose or seek to enter into, or otherwise be involved in or part of, directly or indirectly, any\nacquisition transaction or other business combination relating to all or part of the Company or any of its subsidiaries (whether by way of merger,\nconsolidation, purchase, exchange, recapitalization, restructuring or otherwise) or any acquisition transaction for all or part of the assets of the\nCompany or any of its businesses or subsidiaries; (iii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as\nsuch terms are used in the rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect\nto the voting of, any voting securities of the Company; (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3)\nof the Exchange Act) with respect to any securities of the Company or any of its subsidiaries; (v) seek or propose, alone or in concert with others, to\ninfluence or control the management or policies of the Company or any of its subsidiaries or to become, designate, replace or remove a member of\nthe board of directors of the Company or any of its subsidiaries; (vi) directly or indirectly enter into any discussions, negotiations, agreements,\narrangements or understandings with any other person with respect to any of the foregoing activities or propose any of such activities to any other\nperson; (vii) advise, assist, encourage, or act as a financing source for or otherwise invest in any other person in connection any of the foregoing\nactivities; (viii) disclose (other than, to the extent otherwise permitted hereby, to the\n5\nCompany or its Representatives) any intention, plan or arrangement inconsistent with any of the foregoing; (ix) request that the Company, the\nCompany Board or any of their Representatives, directly or indirectly, (A) amend or waive any provision of this Paragraph 4.1 (including this clause\n(ix)) or (B) otherwise consent to any action inconsistent with any provision of this Paragraph 4.1 (including this clause (ix)); (x) take any action that\nmight require the Company or any of its Representatives to make a public announcement regarding any of the activities referred to in clauses (i)-\n(viii) of this Paragraph 4.1 (other than disclosures otherwise expressly permitted by this letter agreement); or (xi) agree to take any of the foregoing\nactions.\n4.2 Prohibition on Voting Restrictions. For a period of two (2) years from the date hereof, unless consented to in advance by the Company\nBoard to do so (which invitation will be expressly set forth in a written instrument from, and duly authorized by, the Company Board), you shall not,\nand you shall cause your Representatives (other than third party advisors not taking action on your behalf or at your direction) not to, enter into any\nexclusivity, lock-up or other agreement, arrangement or understanding, whether written or oral, with any current or future shareholder of the\nCompany or other person that has the right to vote or direct the voting of voting securities of the Company that is intended or could reasonably be\nexpected to limit, restrict, restrain or otherwise impair in any manner, directly or indirectly, the ability of such person to (i) vote any voting securities\nof the Company beneficially owned by such person (or with respect to which such person otherwise has the right to vote or to the direct the voting of\nsuch voting securities) in favor of, or (ii) tender any such voting or equity securities of the Company into any offer made in connection with, any\ntransaction involving the Company.\n4.3 Securities Laws. You understand and agree that you are aware, and that you will advise your Representatives, that the U.S . federal and state\nsecurities laws prohibit, and certain foreign laws may prohibit, any person who has material, non-public information about a company from\npurchasing or selling securities of such company or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that the person is likely to purchase or sell such securities. You will, and will cause your Representatives to, comply with\nU.S . federal and state securities laws and foreign laws in connection with the receipt of Evaluation Material contemplated hereby.\n5. Certain Additional Restrictions\n5.1 No Partnering. Neither you nor your affiliates nor any of your Representatives have or will, without the prior written consent of the\nCompany Board, enter into, directly or indirectly, any discussions, negotiations, agreements, arrangements or understandings with any person (other\nthan your Representatives), with respect to a possible Transaction or a transaction involving any assets of the Company or that could otherwise affect\nsuch person’s decisions or actions with respect to a possible Transaction.\n5.2 Prohibition on Exclusive Arrangements. You have not and will not, directly or indirectly, enter into any agreement, arrangement or\nunderstanding, whether written or oral, with any potential financing source or sources which may reasonably be expected to limit, restrict, restrain,\notherwise impair in any manner, directly or indirectly, the ability of such financing source or sources to provide financing or other assistance to any\nother party in any other transaction involving the Company.\n6\n6. Miscellaneous.\n6.1 Breach. You shall be responsible for ensuring that your Representatives adhere to the terms of this letter agreement as if such persons were\noriginal parties hereto, you shall be responsible for any breach of this letter agreement by you or any of your Representatives, and you agree, at your\nsole expense, to take all reasonable measures to avoid any prohibited or unauthorized disclosure or use of the Evaluation Material or other breach of\nthis letter agreement by any of your Representatives. The foregoing obligation shall not limit the remedies available to the Company for any breach\nof this letter agreement by any of your Representatives.\n6.2 Process. You understand and agree that: (i) unless and until a Definitive Transaction Agreement has been executed and delivered by the\nCompany and you, none of the Company, the Company Board nor any of their Representatives will be under any legal obligation of any kind\nwhatsoever with respect to the Transaction, and except as arising pursuant to such a Definitive Transaction Agreement, neither you nor any of your\nRepresentatives shall have, and you hereby waive for yourself and on their behalf, any claims whatsoever against the Company, the Company Board\nor any of their Representatives arising out of or relating to the Transaction; (ii) no Information provided, including any statements made, to you or\nany of your Representatives prior to, in the course of or for the purpose of negotiations relating to a Transaction, will constitute an offer by the\nCompany or on the Company’s behalf, nor will you or any of your Representatives claim that any such Information forms the basis of any contract\nor agreement (including, without limitation, an agreement in principle), to engage in any transaction with you, and you hereby waive any claims to\nthe contrary; (iii) the Company Board and the Company reserve the right, in their sole discretion, to both reject any and all proposals made by you or\nany of your Representatives with regard to a Transaction and/or to terminate discussions and negotiations with you or any of your Representatives at\nany time for any reason or no reason; (iv) the Company, the Company Board or any of their Representatives may enter into negotiations and\ndiscussions with any other parties for a possible transaction in lieu of the Transaction with you and enter into a definitive agreement with respect\nthereto without prior notice to you or any of your Representatives; (v) the Company Board and the Company may change in any way in their sole\ndiscretion the Company’s processes or procedures for considering the Transaction or any transaction in lieu of the Transaction without prior notice to\nyou or any of your Representatives; (vi) the Company Board and the Company retain the right to determine, in their sole discretion, what\nInformation it will make available to you or any of your Representatives; and (vii) any passwords provided to you in connection with an electronic\ndata room (“EDR”), if any, will be used only by the individuals to whom such passwords are issued, and that should you desire additional\nindividuals to access the EDR, you will request additional passwords for such individuals.\n6.3 Modification and Waiver. This letter agreement may be modified or waived only by a separate writing by the Company and you expressly\nso modifying or waiving this letter agreement. It is understood and agreed that no failure or delay by the Company, or the Company Board on behalf\nof the Company, in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n7\n6.4 Severability. The illegality, invalidity or unenforceability of any provision of this letter agreement in any jurisdiction shall not affect the\nlegality, validity or enforceability of any other provision of this letter agreement or the legality, validity or enforceability of such provision of this\nletter agreement in any other jurisdiction. In the event that any of the provisions of this letter agreement shall be held by a court or other tribunal of\ncompetent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be deemed limited or eliminated only to the minimum extent\nnecessary so that this letter agreement shall otherwise remain in full force and effect.\n6.5 Entire Agreement. This letter agreement contains the entire agreement between the Company and you concerning the subject matter hereof\nand supersedes all previous agreements, written or oral, to the extent relating to the exchange of Evaluation Material contemplated hereby or any\nconsideration, discussions or negotiations of a Transaction.\n6.6 Remedies. It is further understood and agreed that money damages may not be a sufficient remedy for any breach of this letter agreement\nby you or any of your Representatives and, in addition to all other remedies that the Company or any of its Representatives may have at law or in\nequity and without limiting any of the foregoing, the Company and any of its Representatives shall be entitled to equitable relief, including, without\nlimitation, injunction and specific performance, as a remedy for any such breach and you hereby waive any requirement for the securing or posting\nof any bond in connection with such remedy. Notwithstanding anything to the contrary contained in this letter agreement and without limiting any of\nthe Company’s other rights and remedies available in connection with this letter agreement, if a court of competent jurisdiction determines that you\nor any of your Representatives has breached any provision of this letter agreement, you shall be liable for and pay to the Company on demand any\ndamages awarded, and the reasonable legal fees and expenses incurred by the Company in connection with such breach, including any litigation\nrelated thereto and any appeal therefrom.\n6.7 Governing Law; Venue. This letter agreement shall be governed by and construed in accordance with the laws of the State of Delaware\nwithout giving effect to the conflicts of law provisions thereof. The parties hereto hereby irrevocably and unconditionally consent to the sole and\nexclusive jurisdiction of, and waive any objection to the laying of venue in, the U.S. federal and state court sitting in the City of Wilmington\n(collectively, the “Delaware Courts”) for any action, suit or proceeding arising out of or relating to this letter agreement, and agree not to commence\nany action, suit or proceeding related thereto except in a Delaware Court. Each of the parties hereto further agrees that service of any process,\nsummons, notice or document by registered mail to its address set forth on the first page of this letter agreement shall be effective service of process\nfor any action, suit or proceeding brought against it in any Delaware Court.\n6.8 Assignment; Binding Effect. You may not assign your rights or obligations under this letter agreement to any person. The Company may\nassign its rights and obligations, in whole or in part, under this letter agreement to any person. This letter agreement shall be binding upon you and\nyour respective successors and permitted assigns and shall inure to the benefit of, and be enforceable by, the Company and its respective successors\nand assigns.\n6.9 Expenses. All costs and expenses incurred in connection with this letter agreement and the consideration by the parties of the Transaction,\nincluding, without limitation, all fees of law firms, commercial banks, investment banks, accountants, public relations firms, experts and consultants,\nshall be paid by the party incurring such cost or expense.\n8\n6.10 Headings. Headings included in this letter agreement are for the convenience of the parties only and shall be given no substantive or\ninterpretive effect.\n6.11 Counterparts; Signatures. This letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an\noriginal but all of which together shall constitute one and the same instrument. This letter agreement or any counterpart may be executed and\ndelivered by facsimile copies or electronic transmission, each of which shall be deemed to be an original.\n{Remainder of page intentionally left blank.}\n9\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nWILLIAMS CONTROLS, INC.\nBy: /s/ Patrick Cavanagh\nName: Patrick Cavanagh\nTitle: Chief Executive Officer\nAccepted and agreed as of this 5 day of July, 2012:\nCURTISS-WRIGHT CONTROLS, INC.\nBy: /s/ Brian Freeman\nName: Brian Freeman\nTitle: Vice President Technology & Market\nDevelopment\n10\nth\nAnnex A\nCompany Representatives\nHOULIHAN LOKEY – NEW YORK\n245 Park Avenue, 20 Floor\nNew York, NY 10167\nPhone: (212) 497-4100\nName\nOffice Information\nJim Lavelle\nManaging Director\nAssistant:\nTana Dippolito\n(212) 497-7911\nTDippolito@HL.com\nTel:\nFax:\nMobile:\nEmail:\n(212) 497-4107\n(212) 497-7976\n(203) 858-4632\nJLavelle@HL.com\nGene Bazemore\nSenior Vice President\nAssistant:\nTana Dippolito\n(212) 497-7911\nTDippolito@HL.com\nTel:\nFax:\nMobile:\nEmail:\n(212) 497-7842\n(212) 497-7976\n(917) 605-1163\nEBazemore@HL.com\nDisha Mehta\nAssociate\nAssistant:\nTana Dippolito\n(212) 497-7911\nTDippolito@HL.com\nTel:\nFax:\nMobile:\nEmail:\n(212) 497-4249\n(212) 497-7976\n(512) 944-7280\nDMehta@HL.com\nBill Bronander\nFinancial Analyst\nTel:\nFax:\nMobile:\nEmail:\n(212) 497-7879\n(212) 497-7976\n(201) 669-9149\nBBronander@HL.com\n11\nth	EX-99.(E)(10) 2 d432563dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit 99(e) (10)\nCONFIDENTIAL\nWilliams Controls, Inc.\n14100 SW 72nd Avenue\nPortland, Oregon 97224\nJuly 5, 2012\nMr. Brian Freeman\nCurtiss-Wright Controls, Inc.\n15800 John J. Delaney Dr., Suite 200\nCharlotte, NC 28277\nDear Mr. Watts:\nIn connection with the consideration of a possible negotiated transaction (the “Transaction”) involving Curtiss-Wright Controls, Inc. or its\naffiliates (collectively, “you”) and Williams Controls, Inc., a Delaware corporation (the “Company”), you have requested information regarding the\nCompany. As a condition to any information regarding the Company being furnished to you, you agree to treat any Evaluation Material (as defined\nbelow), and to take or abstain from taking certain other actions, in accordance with the provisions of this letter agreement.\n1. Definitions.\n1.1 Evaluation Material. The term “Evaluation Material” means all information, data, reports, interpretations, forecasts, business plans and\nrecords, financial or otherwise, and whether written, oral, electronic, visual or otherwise (whatever the form or transmission or storage medium),\nconcerning or related to the Company, any of its affiliates, subsidiaries or joint ventures, or any of the businesses, properties, products, intellectual\nproperty, product designs and plans, technical know-how, marketing information, services, costs and pricing information, methods of operation,\nemployees, financial condition, operations, assets, liabilities, results of operations and/or prospects of any of the foregoing (whether prepared by the\nCompany, any of its Representatives (as defined below) or otherwise) that previously has been or may be furnished to you or any of your\nRepresentatives by or on behalf of the Company or any of its Representatives (collectively, “Information”), as well as all notes, analyses,\ncompilations, summaries, extracts, studies, interpretations or other materials prepared by you or any of your Representatives that contain, reflect or\nare based upon, in whole or in part, any such Information, and in each case regardless of whether or not specifically marked as confidential. The\nterm “Evaluation Material” does not include Information that (i) is or becomes generally available to the public (other than as a result of a disclosure\nby you or any of your Representatives in violation of this letter agreement or any other obligation of confidentiality), or (ii) was within your\npossession prior to it being furnished to you by or on behalf of the Company or any of its Representatives (as can be demonstrated by you with dated\nmaterials) or thereafter becomes available to you, in either case without being subject to any contractual, legal, fiduciary or other obligation of\nconfidentiality to the Company or any other person with respect to such Information, or (iii) developed by you independently of the Company as\nsupported by your\nwritten records. The term “Evaluation Material” shall include, without limitation, the existence of a possible Transaction, your or the Company’s\ninterest in a possible Transaction, the fact that Evaluation Material has been made available to you or any of your Representatives, the fact that\ndiscussions or negotiations have taken place, are taking place or may take place concerning a possible Transaction or any similar transaction or any\nof the terms, conditions or other facts with respect thereto (including, without limitation, the status thereof and any drafts of any term sheets, letters\nof intent or agreements related to the Transaction), and the existence and terms of this letter agreement. You acknowledge and agree that the\nEvaluation Material may include Information made available to the Company or any of its Representatives pursuant to confidentiality agreements or\nother obligations of confidentiality between the Company and/or one or more of its Representatives and third parties.\n1.2 Other Definitions. As used in this letter agreement, (i) the term “Representatives” means, each party’s respective affiliates and joint\nventures and any partners, members, managers, directors, officers, employees, agents, representatives, advisors (including, without limitation,\nfinancial advisors, bankers, consultants, counsel and accountants) thereof, and, subject to the next sentence, financing sources, (ii) the term “person”\nshall be broadly interpreted to include the media and any individual, corporation, partnership, limited liability company, group, governmental\nauthority or other entity, and (iii) the term “affiliate” shall have the meaning ascribed to such term in Rule 12b-2 promulgated under the Securities\nExchange Act of 1934, as amended (the “Exchange Act”). Your or your Representatives’ actual or prospective financing sources for the Transaction\nshall not be deemed “Representatives” unless and until, prior to contacting such financing sources (including for purposes of checking conflicts), the\nCompany has consented in writing to such persons being contacted by you or your Representatives for such purposes.\n2. Evaluation Material.\n2.1 Nondisclosure of Evaluation Material. You hereby agree that you shall, and you shall cause your Representatives to: (i) use the Evaluation\nMaterial solely for the purpose of evaluating your possible participation in the Transaction, (ii) keep the Evaluation Material strictly confidential in\naccordance with the terms of this letter agreement, and (iii) without the prior written consent of the Company, not disclose any of the Evaluation\nMaterial to any person; provided, however, that you may disclose any of the Evaluation Material to your Representatives who need to know such\nInformation for the sole purpose set forth in clause (i) above and who agree to be bound by the terms hereof to the same extent as if they were parties\nhereto. You hereby agree to notify the Company immediately upon discovery of any unauthorized use or disclosure of Evaluation Material or any\nother breach of this letter agreement by you or any of your Representatives, and will cooperate with the Company to assist the Company to regain\npossession of the Evaluation Material and prevent its further unauthorized use or disclosure.\n \n2.2 Compulsory Disclosure. In the event that you or any of your Representatives receives a request (by deposition, interrogatory, request for\ndocuments, subpoena, civil investigative demand or similar process) to disclose, or is otherwise required by law or any rule of any securities\nexchange to which you or any of your Representatives is subject (“Law”), including, for purposes of accountants, applicable professional standards\nof the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state\n2\nboards of accountancy or obligations thereunder, to disclose, any of the Evaluation Material, you shall (x) provide the Company with prompt written\nnotice of such request or requirement, along with, to the extent applicable, a copy of the request and the proposed disclosure, the circumstances\nsurrounding such request or requirement, the reason that such disclosure is required and the time and place such disclosure is expected to be made, in\neach case with sufficient specificity so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the\nprovisions of this letter agreement, and (y) if requested by the Company, assist the Company in seeking a protective order or other appropriate\nremedy in response to such request or requirement. Without limiting the generality of the foregoing, you shall not, and shall cause your\nRepresentatives not to, oppose any action by the Company to obtain such a protective order or other remedy. Notwithstanding Paragraph 2.1 hereof,\nif, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you are, or any of your Representatives is,\nnonetheless, on the advice of your counsel, required by Law to disclose any Evaluation Material, you or such Representative may disclose to the\napplicable tribunal or other person only that portion of the Evaluation Material which such counsel advises you is required by Law to be disclosed,\nprovided that you, and, if appropriate, such Representative, exercise your reasonable best efforts to continue to preserve, and have such tribunal or\nother person preserve, the confidentiality of such Evaluation Material. Notwithstanding any disclosure of Evaluation Material pursuant to this\nParagraph 2.2, you and your Representatives will continue to be bound by your and their obligations of confidentiality (including, without limitation,\nwith respect to any Evaluation Material disclosed pursuant to this Paragraph 2.2) and other obligations hereunder.\n2.3 Privileges. Neither the Company nor the board of directors of the Company (the “Company Board”) intend to waive, or to cause any of\ntheir Representatives to waive, the attorney-client, attorney work product or other applicable privilege of the Company, the Company Board or any\nof the Company’s subsidiaries, affiliates or joint ventures (any of the foregoing, a “Privilege”) by providing any Evaluation Material subject to a\nPrivilege, and any production by the Company, the Company Board or any of their Representatives of such Information shall be inadvertent.\nAccordingly, you agree that a production to you or any of your Representatives by the Company, the Company Board or any of their Representatives\nof Evaluation Materials protected by a Privilege shall not constitute a waiver of any such Privilege by any person, and you agree that, upon request\nby the Company, the Company Board or any of their Representatives, you will, and you will cause your Representatives to, immediately return\nand/or destroy such inadvertently produced Evaluation Materials.\n \n2.4 Information Request Procedures; No Contact. You agree that, without the prior written consent of the Company Board, all communications\nfrom you or your Representatives regarding the proposed Transaction, including, without limitation, inquiries, requests for additional information,\nrequests for access to personnel or other business contacts, requests for facility tours or discussions or questions regarding procedures, will be\nsubmitted only to the persons listed in Annex A hereto or to such other person or persons as specifically designated in writing by the Company for\nsuch purposes, except that you or your counsel may direct questions regarding this letter agreement to Davis Wright Tremaine LLP. You agree that\nyou will not, and you will cause your Representatives not to, initiate or maintain contact with (i) subject to the preceding sentence, the Company’s\nRepresentatives, regarding any matters related to the possible Transaction, employment arrangements or understandings, any rollover of equity, the\n3\nprocess or discussions of the Company Board or any related matters, or (ii) any customer, supplier, licensor, licensee or other business partner of the\nCompany or any of its subsidiaries or joint ventures with respect to any matters related to the Company or any of its subsidiaries or joint ventures or\nany of the foregoing persons’ businesses or assets, in either case except with the prior written consent of, and supervision by, the Company Board or\na designated Representative of the Company Board.\n2.5 Return and Destruction of Evaluation Material. If you decide that you do not wish to participate in the Transaction, you will promptly\ninform the Company of that decision. In that case, or at any time upon the request of the Company for any reason, you will promptly (i) deliver to\nthe Company all Evaluation Material furnished by or on behalf of the Company or any of its Representatives and (ii) deliver to the Company or\ndestroy all other Evaluation Material, in each case without keeping any copies, in whole or part thereof in any medium whatsoever; provided\nhowever, that you and your Representatives shall be entitled to retain the minimum number of copies of the Evaluation Material to the extent\nnecessary to comply with applicable Law, which shall be used solely for such purposes. In the event of such a decision or request, you shall cause\none of your authorized officers to deliver to the Company a certificate stating that you have complied with all of the requirements of this Paragraph\n2.5. Notwithstanding the return or the destruction of the Evaluation Material or the termination of discussions regarding the Transaction, you and\nyour Representatives will continue to be bound by your and their obligations of confidentiality (including, without limitation, with respect to any\nEvaluation Material destroyed or returned pursuant to this Paragraph 2.5 or any Evaluation Material retained pursuant to the proviso to the first\nsentence of this Paragraph 2.5) and other obligations hereunder.\n \n \n2.6 Accuracy of Evaluation Material. You understand and agree that none of the Company, the Company Board or any of their Representatives\nis making or shall be deemed to make or have made any representation or warranty, express or implied, as to the accuracy or completeness of the\nEvaluation Material. You agree that none of the Company, the Company Board or any of their Representatives shall have any liability to you or any\nof your Representatives relating to or resulting from the use of the Evaluation Material, including, without limitation, for any conclusions that you,\nany of your Representatives or any other person derive from the Evaluation Material. Only those representations or warranties that are made in a\nfinal definitive written agreement (if any) providing for the Transaction (which, for avoidance of doubt, shall not include a term sheet, letter of intent\nor other similar instrument) (a “Definitive Transaction Agreement”), when, as and if executed and delivered, and subject to such limitations and\nrestrictions as may be specified therein, will have any legal effect.\n2.7 Ownership of Evaluation Material. Nothing herein, nor any disclosure contemplated hereby, shall be deemed to transfer to you or any other\nperson any interest in, or confer in you or any other person any right (including, without limitation, intellectual property right) over, the Evaluation\nMaterial whatsoever beyond those interests and rights expressly provided for in this letter agreement.\n2.8 Term. The obligations of each party hereto set forth in this Paragraph 2 shall terminate and be of no further force or effect on the date that\nis three (3) years from the date hereof.\n3. Non-Solicitation; Non-Hire.\nIn consideration of the Evaluation Material being furnished to you, for a period of two (2) years from the date hereof, you will cause your\nRepresentatives who are aware of this letter agreement (other than third party advisors taking action on behalf of an unrelated person without breach\nof any of the other terms of this letter agreement) not to, directly or indirectly, without obtaining the prior written consent of the Company, solicit for\nemployment any current or former officers, employees or independent contractors of the Company or any of its affiliates or joint ventures (whether\nor not such person would commit any breach of such person’s contract of service in leaving such employment or service); provided, however, that\nthe restriction on solicitation above shall not restrict your ability to conduct generalized searches for officers or employees by use of advertisements\nin periodicals of general circulation.\n4. Standstill; Securities I.aws.\n4.1 Standstill. You hereby represent and warrant that you and your affiliates do not beneficially own any shares of the common stock of the\nCompany. In consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of two (2) years from the date\nhereof, unless invited in advance by the Company Board to do so (which invitation will be expressly set forth in a written instrument from, and duly\nauthorized by, the Company Board), you will not, and you will cause your Representatives (other than third party advisors taking action on behalf of\nan unrelated person without breach of any of the other terms of this letter agreement) not to, directly or indirectly, acting alone or as part of a group:\n(i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, (a) any securities (whether equity, debt or otherwise)\nof the Company or any of its subsidiaries (or beneficial ownership thereof, as such term is used pursuant to Rule 13d-3 under the Exchange Act),\n(b) any right to vote or to direct the voting of any voting or equity securities of the Company or any of its subsidiaries, or (c) any direct or indirect\nrights to acquire any securities of the Company or any of its subsidiaries or any derivative securities with economic equivalents of ownership of any\nof such securities; (ii) enter into or agree, offer, propose or seek to enter into, or otherwise be involved in or part of, directly or indirectly, any\nacquisition transaction or other business combination relating to all or part of the Company or any of its subsidiaries (whether by way of merger,\nconsolidation, purchase, exchange, recapitalization, restructuring or otherwise) or any acquisition transaction for all or part of the assets of the\nCompany or any of its businesses or subsidiaries; (iii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as\nsuch terms are used in the rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect\nto the voting of, any voting securities of the Company; (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3)\nof the Exchange Act) with respect to any securities of the Company or any of its subsidiaries; (v) seek or propose, alone or in concert with others, to\ninfluence or control the management or policies of the Company or any of its subsidiaries or to become, designate, replace or remove a member of\nthe board of directors of the Company or any of its subsidiaries; (vi) directly or indirectly enter into any discussions, negotiations, agreements,\narrangements or understandings with any other person with respect to any of the foregoing activities or propose any of such activities to any other\nperson; (vii) advise, assist, encourage, or act as a financing source for or otherwise invest in any other person in connection any of the foregoing\nactivities; (viii) disclose (other than, to the extent otherwise permitted hereby, to the\n5\nCompany or its Representatives) any intention, plan or arrangement inconsistent with any of the foregoing; (ix) request that the Company, the\nCompany Board or any of their Representatives, directly or indirectly, (A) amend or waive any provision of this Paragraph 4.1 (including this clause\n(ix)) or (B) otherwise consent to any action inconsistent with any provision of this Paragraph 4.1 (including this clause (ix)); (x) take any action that\nmight require the Company or any of its Representatives to make a public announcement regarding any of the activities referred to in clauses (i)-\n(viii) of this Paragraph 4.1 (other than disclosures otherwise expressly permitted by this letter agreement); or (xi) agree to take any of the foregoing\nactions.\n4.2 Prohibition on Voting Restrictions. For a period of two (2) years from the date hereof, unless consented to in advance by the Company\nBoard to do so (which invitation will be expressly set forth in a written instrument from, and duly authorized by, the Company Board), you shall not,\nand you shall cause your Representatives (other than third party advisors not taking action on your behalf or at your direction) not to, enter into any\nexclusivity, lock-up or other agreement, arrangement or understanding, whether written or oral, with any current or future shareholder of the\nCompany or other person that has the right to vote or direct the voting of voting securities of the Company that is intended or could reasonably be\nexpected to limit, restrict, restrain or otherwise impair in any manner, directly or indirectly, the ability of such person to (i) vote any voting securities\nof the Company beneficially owned by such person (or with respect to which such person otherwise has the right to vote or to the direct the voting of\nsuch voting securities) in favor of, or (ii) tender any such voting or equity securities of the Company into any offer made in connection with, any\ntransaction involving the Company.\n4.3 Securities Laws. You understand and agree that you are aware, and that you will advise your Representatives, that the U.S. federal and state\nsecurities laws prohibit, and certain foreign laws may prohibit, any person who has material, non-public information about a company from\npurchasing or selling securities of such company or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that the person is likely to purchase or sell such securities. You will, and will cause your Representatives to, comply with\nU.S. federal and state securities laws and foreign laws in connection with the receipt of Evaluation Material contemplated hereby.\n5. Certain Additional Restrictions\n5.1 No Partnering. Neither you nor your affiliates nor any of your Representatives have or will, without the prior written consent of the\nCompany Board, enter into, directly or indirectly, any discussions, negotiations, agreements, arrangements or understandings with any person (other\nthan your Representatives), with respect to a possible Transaction or a transaction involving any assets of the Company or that could otherwise affect\nsuch person’s decisions or actions with respect to a possible Transaction.\n5.2 Prohibition on Exclusive Arrangements. You have not and will not, directly or indirectly, enter into any agreement, arrangement or\nunderstanding, whether written or oral, with any potential financing source or sources which may reasonably be expected to limit, restrict, restrain,\notherwise impair in any manner, directly or indirectly, the ability of such financing source or sources to provide financing or other assistance to any\nother party in any other transaction involving the Company.\n6. Miscellaneous.\n6.1 Breach. You shall be responsible for ensuring that your Representatives adhere to the terms of this letter agreement as if such persons were\noriginal parties hereto, you shall be responsible for any breach of this letter agreement by you or any of your Representatives, and you agree, at your\nsole expense, to take all reasonable measures to avoid any prohibited or unauthorized disclosure or use of the Evaluation Material or other breach of\nthis letter agreement by any of your Representatives. The foregoing obligation shall not limit the remedies available to the Company for any breach\nof this letter agreement by any of your Representatives.\n6.2 Process. You understand and agree that: (i) unless and until a Definitive Transaction Agreement has been executed and delivered by the\nCompany and you, none of the Company, the Company Board nor any of their Representatives will be under any legal obligation of any kind\nwhatsoever with respect to the Transaction, and except as arising pursuant to such a Definitive Transaction Agreement, neither you nor any of your\nRepresentatives shall have, and you hereby waive for yourself and on their behalf, any claims whatsoever against the Company, the Company Board\nor any of their Representatives arising out of or relating to the Transaction; (ii) no Information provided, including any statements made, to you or\nany of your Representatives prior to, in the course of or for the purpose of negotiations relating to a Transaction, will constitute an offer by the\nCompany or on the Company’s behalf, nor will you or any of your Representatives claim that any such Information forms the basis of any contract\nor agreement (including, without limitation, an agreement in principle), to engage in any transaction with you, and you hereby waive any claims to\nthe contrary; (iii) the Company Board and the Company reserve the right, in their sole discretion, to both reject any and all proposals made by you or\nany of your Representatives with regard to a Transaction and/or to terminate discussions and negotiations with you or any of your Representatives at\nany time for any reason or no reason; (iv) the Company, the Company Board or any of their Representatives may enter into negotiations and\ndiscussions with any other parties for a possible transaction in lieu of the Transaction with you and enter into a definitive agreement with respect\nthereto without prior notice to you or any of your Representatives; (v) the Company Board and the Company may change in any way in their sole\ndiscretion the Company’s processes or procedures for considering the Transaction or any transaction in lieu of the Transaction without prior notice to\nyou or any of your Representatives; (vi) the Company Board and the Company retain the right to determine, in their sole discretion, what\nInformation it will make available to you or any of your Representatives; and (vii) any passwords provided to you in connection with an electronic\ndata room (“EDR”), if any, will be used only by the individuals to whom such passwords are issued, and that should you desire additional\nindividuals to access the EDR, you will request additional passwords for such individuals.\n6.3 Modification and Waiver. This letter agreement may be modified or waived only by a separate writing by the Company and you expressly\nso modifying or waiving this letter agreement. It is understood and agreed that no failure or delay by the Company, or the Company Board on behalf\nof the Company, in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n7\n6.4 Severability. The illegality, invalidity or unenforceability of any provision of this letter agreement in any jurisdiction shall not affect the\nlegality, validity or enforceability of any other provision of this letter agreement or the legality, validity or enforceability of such provision of this\nletter agreement in any other jurisdiction. In the event that any of the provisions of this letter agreement shall be held by a court or other tribunal of\ncompetent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be deemed limited or eliminated only to the minimum extent\nnecessary so that this letter agreement shall otherwise remain in full force and effect.\n6.5 Entire Agreement. This letter agreement contains the entire agreement between the Company and you concerning the subject matter hereof\nand supersedes all previous agreements, written or oral, to the extent relating to the exchange of Evaluation Material contemplated hereby or any\nconsideration, discussions or negotiations of a Transaction.\n6.6 Remedies. It is further understood and agreed that money damages may not be a sufficient remedy for any breach of this letter agreement\nby you or any of your Representatives and, in addition to all other remedies that the Company or any of its Representatives may have at law or in\nequity and without limiting any of the foregoing, the Company and any of its Representatives shall be entitled to equitable relief, including, without\nlimitation, injunction and specific performance, as a remedy for any such breach and you hereby waive any requirement for the securing or posting\nof any bond in connection with such remedy. Notwithstanding anything to the contrary contained in this letter agreement and without limiting any of\nthe Company’s other rights and remedies available in connection with this letter agreement, if a court of competent jurisdiction determines that you\nor any of your Representatives has breached any provision of this letter agreement, you shall be liable for and pay to the Company on demand any\ndamages awarded, and the reasonable legal fees and expenses incurred by the Company in connection with such breach, including any litigation\nrelated thereto and any appeal therefrom.\n6.7 Governing Law; Venue. This letter agreement shall be governed by and construed in accordance with the laws of the State of Delaware\nwithout giving effect to the conflicts of law provisions thereof. The parties hereto hereby irrevocably and unconditionally consent to the sole and\nexclusive jurisdiction of, and waive any objection to the laying of venue in, the U.S. federal and state court sitting in the City of Wilmington\n(collectively, the “Delaware Courts”) for any action, suit or proceeding arising out of or relating to this letter agreement, and agree not to commence\nany action, suit or proceeding related thereto except in a Delaware Court. Each of the parties hereto further agrees that service of any process,\nsummons, notice or document by registered mail to its address set forth on the first page of this letter agreement shall be effective service of process\nfor any action, suit or proceeding brought against it in any Delaware Court.\n6.8 Assignment; Binding Effect. You may not assign your rights or obligations under this letter agreement to any person. The Company may\nassign its rights and obligations, in whole or in part, under this letter agreement to any person. This letter agreement shall be binding upon you and\nyour respective successors and permitted assigns and shall inure to the benefit of, and be enforceable by, the Company and its respective successors\nand assigns.\n6.9 Expenses. All costs and expenses incurred in connection with this letter agreement and the consideration by the parties of the Transaction,\nincluding, without limitation, all fees of law firms, commercial banks, investment banks, accountants, public relations firms, experts and consultants,\nshall be paid by the party incurring such cost or expense.\n6.10 Headings. Headings included in this letter agreement are for the convenience of the parties only and shall be given no substantive or\ninterpretive effect.\n6.11 Counterparts; Signatures. This letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an\noriginal but all of which together shall constitute one and the same instrument. This letter agreement or any counterpart may be executed and\ndelivered by facsimile copies or electronic transmission, each of which shall be deemed to be an original.\n{Remainder of page intentionally left blank.}\n9\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon this letter agreement shall become a binding agreement between you and the Company. Accepted and agreed as of this 5 day of July, 2012:\nCURTISS-WRIGHT CONTROLS, INC.\nBy: /s/ Brian Freeman\nName: Brian Freeman\nTitle:  Vice President Technology & Market\nDevelopment\n10\nVery truly yours,\nWILLIAMS CONTROLS, INC.\nBy:  /s/ Patrick Cavanagh\nName: Patrick Cavanagh\nTitle:  Chief Executive Officer\nAnnex A\nCompany Representatives\nHOULIHAN LOKEY — NEW YORK\n245 Park Avenue, 20t Floor\nNew York, NY 10167\nPhone: (212) 497-4100\nName Office Information\nJim Lavelle\nManaging Director\nAssistant: Tel: (212) 497-4107\nTana Dippolito Fax: (212) 497-7976\n(212) 497-7911 Mobile: (203) 858-4632\nTDippolito@HL.com Email: JLavelle@HL.com\nGene Bazemore\nSenior Vice President\nAssistant: Tel: (212) 497-7842\nTana Dippolito Fax: (212) 497-7976\n(212) 497-7911 Mobile: (917) 605-1163\nTDippolito@HL.com Email: EBazemore@HL.com\nDisha Mehta\nAssociate\nAssistant: Tel: (212) 497-4249\nTana Dippolito Fax: (212) 497-7976\n(212) 497-7911 Mobile: (512) 944-7280\nTDippolito@HL.com Email: DMehta@HL.com\nBill Bronander\nFinancial Analyst\nTel: (212) 497-7879\nFax: (212) 497-7976\nMobile: (201) 669-9149\nEmail: BBronander@HL.com\n11	EX-99.(E)(10) 2 d432563dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit 99(e) (10)\nCONFIDENTIAL\nWilliams Controls, Inc.\n14100 SW 72nd Avenue\nPortland, Oregon 97224\nJuly 5, 2012\nMr. Brian Freeman\nCurtiss-Wrigh Controls, Inc.\n15800 John J. Delaney Dr., Suite 200\nCharlotte, NC 28277\nDear Mr. Watts:\nIn connection with the consideration of a possible negotiated transaction (the "Transaction") involving Curtiss-Wright Controls, Inc. or its\naffiliates (collectively, "you") and Williams Controls, Inc., a Delaware corporation (the "Company."), you have requested information regarding the\nCompany. As a condition to any information regarding the Company being furnished to you, you agree to treat any Evaluation Material (as defined\nbelow), and to take or abstain from taking certain other actions, in accordance with the provisions of this letter agreement.\n1. Definitions\n1.1 Evaluation Material. The term "Evaluation Material" means all information, data, reports, interpretations, forecasts, business plans and\nrecords, financial or otherwise, and whether written, oral, electronic, visual or otherwise (whatever the form or transmission or storage medium),\nconcerning or related to the Company, any of its affiliates, subsidiaries or joint ventures, or any of the businesses, properties, products, intellectual\nproperty, product designs and plans, technical know-how, marketing information, services, costs and pricing information, methods of operation,\nemployees, financial condition, operations, assets, liabilities, results of operations and/or prospects of any of the foregoing (whether prepared by the\nCompany, any of its Representatives (as defined below) or otherwise) that previously has been or may be furnished to you or any of your\nRepresentatives by or on behalf of the Company or any of its Representatives (collectively, "Information"), as well as all notes, analyses,\ncompilations, summaries, extracts, studies, interpretations or other materials prepared by you or any of your Representatives that contain, reflect\nor\nare based upon, in whole or in part, any such Information, and in each case regardless of whether or not specifically marked as confidential. The\nterm "Evaluation Material" does not include Information that (i) is or becomes generally available to the public (other than as a result of a disclosure\nby you or any of your Representatives in violation of this letter agreement or any other obligation of confidentiality), or (ii) was within your\npossession prior to it being furnished to you by or on behalf of the Company or any of its Representatives (as can be demonstrated by you with dated\nmaterials) or thereafter becomes available to you, in either case without being subject to any contractual, legal, fiduciary or other obligation of\nconfidentiality to the Company or any other person with respect to such Information, or (iii) developed by you independently of the Company as\nsupported by your\nwritten records. The term "Evaluation Material" shall include, without limitation, the existence of a possible Transaction, your or the Company's\ninterest in a possible Transaction, the fact that Evaluation Material has been made available to you or any of your Representatives, the fact that\ndiscussions or negotiations have taken place, are taking place or may take place concerning a possible Transaction or any similar transaction or any\nof the terms, conditions or other facts with respect thereto (including, without limitation, the status thereof and any drafts of any term sheets, letters\nof intent or agreements related to the Transaction), and the existence and terms of this letter agreement. You acknowledge and agree that the\nEvaluation Material may include Information made available to the Company or any of its Representatives pursuant to confidentiality agreements or\nother obligations of confidentiality between the Company and/or one or more of its Representatives and third parties.\n1.2 Other Definitions. As used in this letter agreement, (i) the term "Representatives" means, each party's respective affiliates and joint\nventures and any partners, members, managers, directors, officers, employees, agents, representatives, advisors (including, without limitation,\nfinancial advisors, bankers, consultants, counsel and accountants) thereof, and, subject to the next sentence, financing sources, (ii) the term "person"\nshall be broadly interpreted to include the media and any individual, corporation, partnership, limited liability company, group, governmenta\nauthority or other entity, and (iii) the term "affiliate" shall have the meaning ascribed to such term in Rule 12b-2 promulgated under the Securities\nExchange Act of 1934, as amended (the "Exchange Act"). Your or your Representatives' actual or prospective financing sources for the Transaction\nshall not be deemed "Representatives" unless and until, prior to contacting such financing sources (including for purposes of checking conflicts),\nthe\nCompany has consented in writing to such persons being contacted by you or your Representatives for such purposes.\n2.\nEvaluation Material.\n2.1 Nondisclosure of Evaluation Material. You hereby agree that you shall, and you shall cause your Representatives to: (i) use the Evaluation\nMaterial solely for the purpose of evaluating your possible participation in the Transaction, (ii) keep the Evaluation Material strictly confidential in\naccordance with the terms of this letter agreement, and (iii) without the prior written consent of the Company, not disclose any of the Evaluation\nMaterial to any person; provided, however, that you may disclose any of the Evaluation Material to your Representatives who need to know such\nInformation for the sole purpose set forth in clause (i) above and who agree to be bound by the terms hereof to the same extent as if they were parties\nhereto. You hereby agree to notify the Company immediately upon discovery of any unauthorized use or disclosure of Evaluation Material or any\nother breach of this letter agreement by you or any of your Representatives, and will cooperate with the Company to assist the Company to regain\npossession of the Evaluation Material and prevent its further unauthorized use or disclosure.\n2.2 Compulsory. Disclosure. In the event that you or any of your Representatives receives a request (by deposition, interrogatory, request for\ndocuments, subpoena, civil investigative demand or similar process) to disclose, or is otherwise required by law or any rule of any securities\nexchange to which you or any of your Representatives is subject ("Law"), including, for purposes of accountants, applicable professional standards\nof the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state\n2\nboards of accountancy or obligations thereunder, to disclose, any of the Evaluation Material, you shall (x) provide the Company with prompt written\nnotice of such request or requirement, along with, to the extent applicable, a copy of the request and the proposed disclosure, the circumstances\nsurrounding such request or requirement, the reason that such disclosure is required and the time and place such disclosure is expected to be made,\nin\neach case with sufficient specificity so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the\nprovisions of this letter agreement, and (y) if requested by the Company, assist the Company in seeking a protective order or other appropriate\nremedy in response to such request or requirement. Without limiting the generality of the foregoing, you shall not, and shall cause your\nRepresentatives not to, oppose any action by the Company to obtain such a protective order or other remedy. Notwithstanding Paragraph 2.1 hereof,\nif, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you are, or any of your Representatives\nis,\nnonetheless, on the advice of your counsel, required by Law to disclose any Evaluation Material, you or such Representative may disclose to the\napplicable tribunal or other person only that portion of the Evaluation Material which such counsel advises you is required by Law to be disclosed,\nprovided that you, and, if appropriate, such Representative, exercise your reasonable best efforts to continue to preserve, and have such tribunal or\nother person preserve, the confidentiality of such Evaluation Material. Notwithstanding any disclosure of Evaluation Material pursuant to this\nParagraph 2.2, you and your Representatives will continue to be bound by your and their obligations of confidentiality (including, without limitation,\nwith respect to any Evaluation Material disclosed pursuant to this Paragraph 2.2) and other obligations hereunder.\n2.3 Privileges. Neither the Company nor the board of directors of the Company (the "Company. Board") intend to waive, or to cause any of\ntheir Representatives to waive, the attorney-client, attorney work product or other applicable privilege of the Company, the Company Board or any\nof\nthe Company's subsidiaries, affiliates or joint ventures (any of the foregoing, a "Privilege") by providing any Evaluation Material subject to a\nPrivilege, and any production by the Company, the Company Board or any of their Representatives of such Information shall be inadvertent.\nAccordingly, you agree that a production to you or any of your Representatives by the Company, the Company Board or any of their Representatives\nof Evaluation Materials protected by a Privilege shall not constitute a waiver of any such Privilege by any person, and you agree that, upon request\nby the Company, the Company Board or any of their Representatives, you will, and you will cause your Representatives to, immediately return\nand/or destroy such inadvertently produced Evaluation Materials.\n2.4 Information Request Procedures; No Contact. You agree that, without the prior written consent of the Company Board, all communications\nfrom you or your Representatives regarding the proposed Transaction, including, without limitation, inquiries, requests for additional information,\nrequests for access to personnel or other business contacts, requests for facility tours or discussions or questions regarding procedures, will\nbe\nsubmitted only to the persons listed in Annex A hereto or to such other person or persons as specifically designated in writing by the Company for\nsuch purposes, except that you or your counsel may direct questions regarding this letter agreement to Davis Wright Tremaine LLP. You agree\nthat\nyou will not, and you will cause your Representatives not to, initiate or maintain contact with (i) subject to the preceding sentence, the Company's\nRepresentatives, regarding any matters related to the possible Transaction, employment arrangements or understandings, any rollover of equity, the\n3\nprocess or discussions of the Company Board or any related matters, or (ii) any customer, supplier, licensor, licensee or other business partner\nof\nthe\nCompany or any of its subsidiaries or joint ventures with respect to any matters related to the Company or any of its subsidiaries or joint ventures or\nany of the foregoing persons' businesses or assets, in either case except with the prior written consent of, and supervision by, the Company Board or\na designated Representative of the Company Board.\n2.5 Return and Destruction of Evaluation Material. If you decide that you do not wish to participate in the Transaction, you will promptly\ninform the Company of that decision. In that case, or at any time upon the request of the Company for any reason, you will promptly (i) deliver to\nthe Company all Evaluation Material furnished by or on behalf of the Company or any of its Representatives and (ii) deliver to the Company or\ndestroy all other Evaluation Material, in each case without keeping any copies, in whole or part thereof in any medium whatsoever; provided,\nhowever, that you and your Representatives shall be entitled to retain the minimum number of copies of the Evaluation Material to the extent\nnecessary to comply with applicable Law, which shall be used solely for such purposes. In the event of such a decision or request, you shall cause\none of your authorized officers to deliver to the Company a certificate stating that you have complied with all of the requirements of this Paragraph\n2.5. Notwithstanding the return or the destruction of the Evaluation Material or the termination of discussions regarding the Transaction, you and\nyour Representatives will continue to be bound by your and their obligations of confidentiality (including, without limitation, with respect to any\nEvaluation Material destroyed or returned pursuant to this Paragraph 2.5 or any Evaluation Material retained pursuant to the proviso to the first\nsentence of this Paragraph 2.5) and other obligations hereunder.\n2.6 Accuracy of Evaluation Material. You understand and agree that none of the Company, the Company Board or any of their Representatives\nis making or shall be deemed to make or have made any representation or warranty, express or implied, as to the accuracy or completeness of the\nEvaluation Material. You agree that none of the Company, the Company Board or any of their Representatives shall have any liability to you or any\nof your Representatives relating to or resulting from the use of the Evaluation Material, including, without limitation, for any conclusions that you,\nany of your Representatives or any other person derive from the Evaluation Material. Only those representations or warranties that are made in a\nfinal definitive written agreement (if any) providing for the Transaction (which, for avoidance of doubt, shall not include a term sheet, letter of intent\nor other similar instrument) (a "Definitive Transaction Agreement"), when, as and if executed and delivered, and subject to such limitations and\nrestrictions as may be specified therein, will have any legal effect.\n2.7 Ownership of Evaluation Material. Nothing herein, nor any disclosure contemplated hereby, shall be deemed to transfer to you or any other\nperson any interest in, or confer in you or any other person any right (including, without limitation, intellectual property right) over, the Evaluation\nMaterial whatsoever beyond those interests and rights expressly provided for in this letter agreement.\n2.8 Term. The obligations of each party hereto set forth in this Paragraph 2 shall terminate and be of no further force or effect on the date that\nis three (3) years from the date hereof.\n4\n3.\nNon-Solicitation; Non-Hire.\nIn consideration of the Evaluation Material being furnished to you, for a period of two (2) years from the date hereof, you will cause your\nRepresentatives who are aware of this letter agreement (other than third party advisors taking action on behalf of an unrelated person without breach\nof any of the other terms of this letter agreement) not to, directly or indirectly, without obtaining the prior written consent of the Company, solicit\nfor\nemployment any current or former officers, employees or independent contractors of the Company or any of its affiliates or joint ventures (whether\nor not such person would commit any breach of such person's contract of service in leaving such employment or service); provided, however, that\nthe restriction on solicitation above shall not restrict your ability to conduct generalized searches for officers or employees by use of advertisements\nin periodicals of general circulation.\n4. Standstill; Securities Laws.\n4.1 Standstill. You hereby represent and warrant that you and your affiliates do not beneficially own any shares of the common stock of the\nCompany. In consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of two (2) years from the date\nhereof, unless invited in advance by the Company Board to do so (which invitation will be expressly set forth in a written instrument from, and duly\nauthorized by, the Company Board), you will not, and you will cause your Representatives (other than third party advisors taking action on behalf\nof\nan unrelated person without breach of any of the other terms of this letter agreement) not to, directly or indirectly, acting alone or as part of a group:\n(i)\nacquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, (a) any securities (whether equity, debt or otherwise)\nof the Company or any of its subsidiaries (or beneficial ownership thereof, as such term is used pursuant to Rule 13d-3 under the Exchange Act),\n(b) any right to vote or to direct the voting of any voting or equity securities of the Company or any of its subsidiaries, or (c) any direct or indirect\nrights to acquire any securities of the Company or any of its subsidiaries or any derivative securities with economic equivalents of ownership of any\nof such securities; (ii) enter into or agree, offer, propose or seek to enter into, or otherwise be involved in or part of, directly or indirectly, any\nacquisition transaction or other business combination relating to all or part of the Company or any of its subsidiaries (whether by way of merger,\nconsolidation, purchase, exchange, recapitalization, restructuring or otherwise) or any acquisition transaction for all or part of the assets of the\nCompany or any of its businesses or subsidiaries; (iii) make, or in any way participate in, directly or indirectly, any "solicitation" of "proxies" (as\nsuch terms are used in the rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect\nto the voting of, any voting securities of the Company; (iv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3)\nof the Exchange Act) with respect to any securities of the Company or any of its subsidiaries; (v) seek or propose, alone or in concert with others, to\ninfluence or control the management or policies of the Company or any of its subsidiaries or to become, designate, replace or remove a member of\nthe board of directors of the Company or any of its subsidiaries; (vi) directly or indirectly enter into any discussions, negotiations, agreements,\narrangements or understandings with any other person with respect to any of the foregoing activities or propose any of such activities to any other\nperson; (vii) advise, assist, encourage, or act as a financing source for or otherwise invest in any other person in connection any of the foregoing\nactivities; (viii) disclose (other than, to the extent otherwise permitted hereby, to the\n5\nCompany or its Representatives) any intention, plan or arrangement inconsistent with any of the foregoing; (ix) request that the Company, the\nCompany Board or any of their Representatives, directly or indirectly, (A) amend or waive any provision of this Paragraph 4.1 (including this clause\n(ix)) or (B) otherwise consent to any action inconsistent with any provision of this Paragraph 4.1 (including this clause (ix)); (x) take any action\nthat\nmight require the Company or any of its Representatives to make a public announcement regarding any of the activities referred to in clauses (i)-\n(viii) of this Paragraph 4.1 (other than disclosures otherwise expressly permitted by this letter agreement); or (xi) agree to take any of the foregoing\nactions.\n4.2 Prohibition on Voting Restrictions. For a period of two (2) years from the date hereof, unless consented to in advance by the Company\nBoard to do so (which invitation will be expressly set forth in a written instrument from, and duly authorized by, the Company Board), you shall not,\nand you shall cause your Representatives (other than third party advisors not taking action on your behalf or at your direction) not to, enter into any\nexclusivity, lock-up or other agreement, arrangement or understanding, whether written or oral, with any current or future shareholder of the\nCompany or other person that has the right to vote or direct the voting of voting securities of the Company that is intended or could reasonably be\nexpected to limit, restrict, restrain or otherwise impair in any manner, directly or indirectly, the ability of such person to (i) vote any voting securities\nof the Company beneficially owned by such person (or with respect to which such person otherwise has the right to vote or to the direct the voting of\nsuch voting securities) in favor of, or (ii) tender any such voting or equity securities of the Company into any offer made in connection with, any\ntransaction involving the Company.\n4.3 Securities Laws. You understand and agree that you are aware, and that you will advise your Representatives, that the U.S. federal and state\nsecurities laws prohibit, and certain foreign laws may prohibit, any person who has material, non-public information about a company from\npurchasing or selling securities of such company or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that the person is likely to purchase or sell such securities. You will, and will cause your Representatives to, comply with\nU.S. federal and state securities laws and foreign laws in connection with the receipt of Evaluation Material contemplated hereby.\n5.\nCertain Additional Restrictions\n5.1 No Partnering. Neither you nor your affiliates nor any of your Representatives have or will, without the prior written consent of the\nCompany Board, enter into, directly or indirectly, any discussions, negotiations, agreements, arrangements or understandings with any person (other\nthan your Representatives), with respect to a possible Transaction or a transaction involving any assets of the Company or that could otherwise affect\nsuch person's decisions or actions with respect to a possible Transaction.\n5.2 Prohibition on Exclusive Arrangements. You have not and will not, directly or indirectly, enter into any agreement, arrangement or\nunderstanding, whether written or oral, with any potential financing source or sources which may reasonably be expected to limit, restrict, restrain,\notherwise impair in any manner, directly or indirectly, the ability of such financing source or sources to provide financing or other assistance to any\nother party in any other transaction involving the Company.\n6\n6. Miscellaneous.\n6.1 Breach You shall be responsible for ensuring that your Representatives adhere to the terms of this letter agreement as if such persons were\noriginal parties hereto, you shall be responsible for any breach of this letter agreement by you or any of your Representatives, and you agree, at your\nsole expense, to take all reasonable measures to avoid any prohibited or unauthorized disclosure or use of the Evaluation Material or other breach\nof\nthis letter agreement by any of your Representatives. The foregoing obligation shall not limit the remedies available to the Company for any breach\nof this letter agreement by any of your Representatives.\n6.2 Process. You understand and agree that: (i) unless and until a Definitive Transaction Agreement has been executed and delivered by the\nCompany and you, none of the Company, the Company Board nor any of their Representatives will be under any legal obligation of any kind\nwhatsoever with respect to the Transaction, and except as arising pursuant to such a Definitive Transaction Agreement, neither you nor any of your\nRepresentatives shall have, and you hereby waive for yourself and on their behalf, any claims whatsoever against the Company, the Company Board\nor any of their Representatives arising out of or relating to the Transaction; (ii) no Information provided, including any statements made, to you or\nany of your Representatives prior to, in the course of or for the purpose of negotiations relating to a Transaction, will constitute an offer by the\nCompany or on the Company's behalf, nor will you or any of your Representatives claim that any such Information forms the basis of any contract\nor agreement (including, without limitation, an agreement in principle), to engage in any transaction with you, and you hereby waive any claims to\nthe contrary; (iii) the Company Board and the Company reserve the right, in their sole discretion, to both reject any and all proposals made by you or\nany of your Representatives with regard to a Transaction and/or to terminate discussions and negotiations with you or any of your Representatives at\nany time for any reason or no reason; (iv) the Company, the Company Board or any of their Representatives may enter into negotiations and\ndiscussions with any other parties for a possible transaction in lieu of the Transaction with you and enter into a definitive agreement with respect\nthereto without prior notice to you or any of your Representatives; (v) the Company Board and the Company may change in any way in their sole\ndiscretion the Company's processes or procedures for considering the Transaction or any transaction in lieu of the Transaction without prior notice to\nyou or any of your Representatives; (vi) the Company Board and the Company retain the right to determine, in their sole discretion, what\nInformation it will make available to you or any of your Representatives; and (vii) any passwords provided to you in connection with an electronic\ndata room ("EDR"), if any, will be used only by the individuals to whom such passwords are issued, and that should you desire additional\nindividuals to access the EDR, you will request additional passwords for such individuals.\n6.3\nModification and Waiver. This letter agreement may be modified or waived only by a separate writing by the Company and you expressly\nso\nmodifying or waiving this letter agreement. It is understood and agreed that no failure or delay by the Company, or the Company Board on behalf\nof the Company, in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n7\n6.4 Severability.. The illegality, invalidity or unenforceability of any provision of this letter agreement in any jurisdiction shall not affect the\nlegality, validity or enforceability of any other provision of this letter agreement or the legality, validity or enforceability of such provision of this\nletter agreement in any other jurisdiction. In the event that any of the provisions of this letter agreement shall be held by a court or other tribunal of\ncompetent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be deemed limited or eliminated only to the minimum extent\nnecessary so that this letter agreement shall otherwise remain in full force and effect.\n6.5 Entire Agreement. This letter agreement contains the entire agreement between the Company and you concerning the subject matter hereof\nand supersedes all previous agreements, written or oral, to the extent relating to the exchange of Evaluation Material contemplated hereby or any\nconsideration, discussions or negotiations of a Transaction.\n6.6 Remedies. It is further understood and agreed that money damages may not be a sufficient remedy for any breach of this letter agreement\nby you or any of your Representatives and, in addition to all other remedies that the Company or any of its Representatives may have at law or in\nequity and without limiting any of the foregoing, the Company and any of its Representatives shall be entitled to equitable relief, including, without\nlimitation, injunction and specific performance, as a remedy for any such breach and you hereby waive any requirement for the securing or posting\nof any bond in connection with such remedy. Notwithstanding anything to the contrary contained in this letter agreement and without limiting any of\nthe Company's other rights and remedies available in connection with this letter agreement, if a court of competent jurisdiction determines that you\nor any of your Representatives has breached any provision of this letter agreement, you shall be liable for and pay to the Company on demand any\ndamages awarded, and the reasonable legal fees and expenses incurred by the Company in connection with such breach, including any litigation\nrelated thereto and any appeal therefrom.\n6.7 Governing Law; Venue. This letter agreement shall be governed by and construed in accordance with the laws of the State of Delaware\nwithout giving effect to the conflicts of law provisions thereof. The parties hereto hereby irrevocably and unconditionally consent to the sole and\nexclusive jurisdiction of, and waive any objection to the laying of venue in, the U.S. federal and state court sitting in the City of Wilmington\n(collectively, the "Delaware Courts") for any action, suit or proceeding arising out of or relating to this letter agreement, and agree not to commence\nany action, suit or proceeding related thereto except in a Delaware Court. Each of the parties hereto further agrees that service of any process,\nsummons, notice or document by registered mail to its address set forth on the first page of this letter agreement shall be effective service of process\nfor any action, suit or proceeding brought against it in any Delaware Court.\n6.8 Assignment; Binding Effect. You may not assign your rights or obligations under this letter agreement to any person. The Company may\nassign its rights and obligations, in whole or in part, under this letter agreement to any person. This letter agreement shall be binding upon you and\nyour respective successors and permitted assigns and shall inure to the benefit of, and be enforceable by, the Company and its respective successors\nand assigns\n6.9 Expenses. All costs and expenses incurred in connection with this letter agreement and the consideration by the parties of the Transaction,\nincluding, without limitation, all fees of law firms, commercial banks, investment banks, accountants, public relations firms, experts and consultants,\nshall be paid by the party incurring such cost or expense.\n8\n6.10 Headings. Headings included in this letter agreement are for the convenience of the parties only and shall be given no substantive\nor\ninterpretive effect.\n6.11 Counterparts; Signatures This letter agreement may be executed in one or more counterparts, each of which shall be deemed to be\nan\norigina but all of which together shall constitute one and the same instrument. This letter agreement or any counterpart may be executed and\ndelivered by facsimile copies or electronic transmission, each of which shall be deemed to be an original.\n{Remainder of page intentionally left blank.}\n9\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nWILLIAMS CONTROLS, INC.\nBy:\n/s/ Patrick Cavanagh\nName: Patrick Cavanagh\nTitle: Chief Executive Officer\nAccepted and agreed as of this 5th day of July, 2012:\nCURTISS-WRIGHT CONTROLS, INC.\nBy:\n/s/ Brian Freeman\nName: Brian Freeman\nTitle:\nVice President Technology & Market\nDevelopment\n10\nAnnex A\nCompany Representatives\nHOULIHAN LOKEY - NEW YORK\n245 Park Avenue, 20th Floor\nNew York, NY 10167\nPhone: (212) 497-4100\nName\nOffice Information\nJim Lavelle\nManaging Director\nAssistant:\nTel:\n(212) 497-4107\nTana Dippolito\nFax:\n(212) 497-7976\n(212) 497-7911\nMobile: (203) 858-4632\nTDippolito@HL.com\nEmail: JLavelle@HL.com\nGene Bazemore\nSenior Vice President\nAssistant:\nTel:\n(212) 497-7842\nTana Dippolito\nFax:\n(212) 497-7976\n(212) 497-7911\nMobile: (917) 605-1163\nTDippolito@HL.com\nEmail: EBazemore@HL.com\nDisha Mehta\nAssociate\nAssistant:\nTel:\n(212) 497-4249\nTana Dippolito\nFax:\n(212) 497-7976\n(212) 497-7911\nMobile: (512) 944-7280\nTDippolito@HL.com\nEmail: DMehta@HL.com\nBill Bronander\nFinancial Analyst\nTel:\n(212) )497-7879\nFax:\n(212) 497-7976\nMobile: (201) 669-9149\nEmail: BBronander@HL.com\n11	EX-99.(E)(10) 2 d432563dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit 99(e) (10)\nCONFIDENTIAL\nWilliams Controls, Inc.\n14100 SW 72 Avenue\nPortland, Oregon 97224\nJuly 5, 2012\nMr. Brian Freeman\nCurtiss-Wright Controls, Inc.\n15800 John J. Delaney Dr., Suite 200\nCharlotte, NC 28277\nDear Mr. Watts:\nIn connection with the consideration of a possible negotiated transaction (the “Transaction”) involving Curtiss-Wright Controls, Inc. or its\naffiliates (collectively, “you”) and Williams Controls, Inc., a Delaware corporation (the “Company”), you have requested information regarding the\nCompany. As a condition to any information regarding the Company being furnished to you, you agree to treat any Evaluation Material (as defined\nbelow), and to take or abstain from taking certain other actions, in accordance with the provisions of this letter agreement.\n1. Definitions.\n1.1 Evaluation Material. The term “Evaluation Material” means all information, data, reports, interpretations, forecasts, business plans and\nrecords, financial or otherwise, and whether written, oral, electronic, visual or otherwise (whatever the form or transmission or storage medium),\nconcerning or related to the Company, any of its affiliates, subsidiaries or joint ventures, or any of the businesses, properties, products, intellectual\nproperty, product designs and plans, technical know-how, marketing information, services, costs and pricing information, methods of operation,\nemployees, financial condition, operations, assets, liabilities, results of operations and/or prospects of any of the foregoing (whether prepared by the\nCompany, any of its Representatives (as defined below) or otherwise) that previously has been or may be furnished to you or any of your\nRepresentatives by or on behalf of the Company or any of its Representatives (collectively, “Information”), as well as all notes, analyses,\ncompilations, summaries, extracts, studies, interpretations or other materials prepared by you or any of your Representatives that contain, reflect or\nare based upon, in whole or in part, any such Information, and in each case regardless of whether or not specifically marked as confidential. The\nterm “Evaluation Material” does not include Information that (i) is or becomes generally available to the public (other than as a result of a disclosure\nby you or any of your Representatives in violation of this letter agreement or any other obligation of confidentiality), or (ii) was within your\npossession prior to it being furnished to you by or on behalf of the Company or any of its Representatives (as can be demonstrated by you with dated\nmaterials) or thereafter becomes available to you, in either case without being subject to any contractual, legal, fiduciary or other obligation of\nconfidentiality to the Company or any other person with respect to such Information, or (iii) developed by you independently of the Company as\nsupported by your\nnd\nwritten records. The term “Evaluation Material” shall include, without limitation, the existence of a possible Transaction, your or the Company’s\ninterest in a possible Transaction, the fact that Evaluation Material has been made available to you or any of your Representatives, the fact that\ndiscussions or negotiations have taken place, are taking place or may take place concerning a possible Transaction or any similar transaction or any\nof the terms, conditions or other facts with respect thereto (including, without limitation, the status thereof and any drafts of any term sheets, letters\nof intent or agreements related to the Transaction), and the existence and terms of this letter agreement. You acknowledge and agree that the\nEvaluation Material may include Information made available to the Company or any of its Representatives pursuant to confidentiality agreements or\nother obligations of confidentiality between the Company and/or one or more of its Representatives and third parties.\n1.2 Other Definitions. As used in this letter agreement, (i) the term “Representatives” means, each party’s respective affiliates and joint\nventures and any partners, members, managers, directors, officers, employees, agents, representatives, advisors (including, without limitation,\nfinancial advisors, bankers, consultants, counsel and accountants) thereof, and, subject to the next sentence, financing sources, (ii) the term “person”\nshall be broadly interpreted to include the media and any individual, corporation, partnership, limited liability company, group, governmental\nauthority or other entity, and (iii) the term “affiliate” shall have the meaning ascribed to such term in Rule 12b-2 promulgated under the Securities\nExchange Act of 1934, as amended (the “Exchange Act”). Your or your Representatives’ actual or prospective financing sources for the Transaction\nshall not be deemed “Representatives” unless and until, prior to contacting such financing sources (including for purposes of checking conflicts), the\nCompany has consented in writing to such persons being contacted by you or your Representatives for such purposes.\n2. Evaluation Material.\n2.1 Nondisclosure of Evaluation Material. You hereby agree that you shall, and you shall cause your Representatives to: (i) use the Evaluation\nMaterial solely for the purpose of evaluating your possible participation in the Transaction, (ii) keep the Evaluation Material strictly confidential in\naccordance with the terms of this letter agreement, and (iii) without the prior written consent of the Company, not disclose any of the Evaluation\nMaterial to any person; provided, however, that you may disclose any of the Evaluation Material to your Representatives who need to know such\nInformation for the sole purpose set forth in clause (i) above and who agree to be bound by the terms hereof to the same extent as if they were parties\nhereto. You hereby agree to notify the Company immediately upon discovery of any unauthorized use or disclosure of Evaluation Material or any\nother breach of this letter agreement by you or any of your Representatives, and will cooperate with the Company to assist the Company to regain\npossession of the Evaluation Material and prevent its further unauthorized use or disclosure.\n2.2 Compulsory Disclosure. In the event that you or any of your Representatives receives a request (by deposition, interrogatory, request for\ndocuments, subpoena, civil investigative demand or similar process) to disclose, or is otherwise required by law or any rule of any securities\nexchange to which you or any of your Representatives is subject (“Law”), including, for purposes of accountants, applicable professional standards\nof the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state\n2\nboards of accountancy or obligations thereunder, to disclose, any of the Evaluation Material, you shall (x) provide the Company with prompt written\nnotice of such request or requirement, along with, to the extent applicable, a copy of the request and the proposed disclosure, the circumstances\nsurrounding such request or requirement, the reason that such disclosure is required and the time and place such disclosure is expected to be made, in\neach case with sufficient specificity so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the\nprovisions of this letter agreement, and (y) if requested by the Company, assist the Company in seeking a protective order or other appropriate\nremedy in response to such request or requirement. Without limiting the generality of the foregoing, you shall not, and shall cause your\nRepresentatives not to, oppose any action by the Company to obtain such a protective order or other remedy. Notwithstanding Paragraph 2.1 hereof,\nif, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you are, or any of your Representatives is,\nnonetheless, on the advice of your counsel, required by Law to disclose any Evaluation Material, you or such Representative may disclose to the\napplicable tribunal or other person only that portion of the Evaluation Material which such counsel advises you is required by Law to be disclosed,\nprovided that you, and, if appropriate, such Representative, exercise your reasonable best efforts to continue to preserve, and have such tribunal or\nother person preserve, the confidentiality of such Evaluation Material. Notwithstanding any disclosure of Evaluation Material pursuant to this\nParagraph 2.2, you and your Representatives will continue to be bound by your and their obligations of confidentiality (including, without limitation,\nwith respect to any Evaluation Material disclosed pursuant to this Paragraph 2.2) and other obligations hereunder.\n2.3 Privileges. Neither the Company nor the board of directors of the Company (the “Company Board”) intend to waive, or to cause any of\ntheir Representatives to waive, the attorney-client, attorney work product or other applicable privilege of the Company, the Company Board or any\nof the Company’s subsidiaries, affiliates or joint ventures (any of the foregoing, a “Privilege”) by providing any Evaluation Material subject to a\nPrivilege, and any production by the Company, the Company Board or any of their Representatives of such Information shall be inadvertent.\nAccordingly, you agree that a production to you or any of your Representatives by the Company, the Company Board or any of their Representatives\nof Evaluation Materials protected by a Privilege shall not constitute a waiver of any such Privilege by any person, and you agree that, upon request\nby the Company, the Company Board or any of their Representatives, you will, and you will cause your Representatives to, immediately return\nand/or destroy such inadvertently produced Evaluation Materials.\n2.4 Information Request Procedures; No Contact. You agree that, without the prior written consent of the Company Board, all communications\nfrom you or your Representatives regarding the proposed Transaction, including, without limitation, inquiries, requests for additional information,\nrequests for access to personnel or other business contacts, requests for facility tours or discussions or questions regarding procedures, will be\nsubmitted only to the persons listed in Annex A hereto or to such other person or persons as specifically designated in writing by the Company for\nsuch purposes, except that you or your counsel may direct questions regarding this letter agreement to Davis Wright Tremaine LLP. You agree that\nyou will not, and you will cause your Representatives not to, initiate or maintain contact with (i) subject to the preceding sentence, the Company’s\nRepresentatives, regarding any matters related to the possible Transaction, employment arrangements or understandings, any rollover of equity, the\n3\nprocess or discussions of the Company Board or any related matters, or (ii) any customer, supplier, licensor, licensee or other business partner of the\nCompany or any of its subsidiaries or joint ventures with respect to any matters related to the Company or any of its subsidiaries or joint ventures or\nany of the foregoing persons’ businesses or assets, in either case except with the prior written consent of, and supervision by, the Company Board or\na designated Representative of the Company Board.\n2.5 Return and Destruction of Evaluation Material. If you decide that you do not wish to participate in the Transaction, you will promptly\ninform the Company of that decision. In that case, or at any time upon the request of the Company for any reason, you will promptly (i) deliver to\nthe Company all Evaluation Material furnished by or on behalf of the Company or any of its Representatives and (ii) deliver to the Company or\ndestroy all other Evaluation Material, in each case without keeping any copies, in whole or part thereof in any medium whatsoever; provided,\nhowever, that you and your Representatives shall be entitled to retain the minimum number of copies of the Evaluation Material to the extent\nnecessary to comply with applicable Law, which shall be used solely for such purposes. In the event of such a decision or request, you shall cause\none of your authorized officers to deliver to the Company a certificate stating that you have complied with all of the requirements of this Paragraph\n2.5. Notwithstanding the return or the destruction of the Evaluation Material or the termination of discussions regarding the Transaction, you and\nyour Representatives will continue to be bound by your and their obligations of confidentiality (including, without limitation, with respect to any\nEvaluation Material destroyed or returned pursuant to this Paragraph 2.5 or any Evaluation Material retained pursuant to the proviso to the first\nsentence of this Paragraph 2.5) and other obligations hereunder.\n2.6 Accuracy of Evaluation Material. You understand and agree that none of the Company, the Company Board or any of their Representatives\nis making or shall be deemed to make or have made any representation or warranty, express or implied, as to the accuracy or completeness of the\nEvaluation Material. You agree that none of the Company, the Company Board or any of their Representatives shall have any liability to you or any\nof your Representatives relating to or resulting from the use of the Evaluation Material, including, without limitation, for any conclusions that you,\nany of your Representatives or any other person derive from the Evaluation Material. Only those representations or warranties that are made in a\nfinal definitive written agreement (if any) providing for the Transaction (which, for avoidance of doubt, shall not include a term sheet, letter of intent\nor other similar instrument) (a “Definitive Transaction Agreement”), when, as and if executed and delivered, and subject to such limitations and\nrestrictions as may be specified therein, will have any legal effect.\n2.7 Ownership of Evaluation Material. Nothing herein, nor any disclosure contemplated hereby, shall be deemed to transfer to you or any other\nperson any interest in, or confer in you or any other person any right (including, without limitation, intellectual property right) over, the Evaluation\nMaterial whatsoever beyond those interests and rights expressly provided for in this letter agreement.\n2.8 Term. The obligations of each party hereto set forth in this Paragraph 2 shall terminate and be of no further force or effect on the date that\nis three (3) years from the date hereof.\n4\n3. Non-Solicitation; Non-Hire.\nIn consideration of the Evaluation Material being furnished to you, for a period of two (2) years from the date hereof, you will cause your\nRepresentatives who are aware of this letter agreement (other than third party advisors taking action on behalf of an unrelated person without breach\nof any of the other terms of this letter agreement) not to, directly or indirectly, without obtaining the prior written consent of the Company, solicit for\nemployment any current or former officers, employees or independent contractors of the Company or any of its affiliates or joint ventures (whether\nor not such person would commit any breach of such person’s contract of service in leaving such employment or service); provided, however, that\nthe restriction on solicitation above shall not restrict your ability to conduct generalized searches for officers or employees by use of advertisements\nin periodicals of general circulation.\n4. Standstill; Securities Laws.\n4.1 Standstill. You hereby represent and warrant that you and your affiliates do not beneficially own any shares of the common stock of the\nCompany. In consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of two (2) years from the date\nhereof, unless invited in advance by the Company Board to do so (which invitation will be expressly set forth in a written instrument from, and duly\nauthorized by, the Company Board), you will not, and you will cause your Representatives (other than third party advisors taking action on behalf of\nan unrelated person without breach of any of the other terms of this letter agreement) not to, directly or indirectly, acting alone or as part of a group:\n(i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, (a) any securities (whether equity, debt or otherwise)\nof the Company or any of its subsidiaries (or beneficial ownership thereof, as such term is used pursuant to Rule 13d-3 under the Exchange Act),\n(b) any right to vote or to direct the voting of any voting or equity securities of the Company or any of its subsidiaries, or (c) any direct or indirect\nrights to acquire any securities of the Company or any of its subsidiaries or any derivative securities with economic equivalents of ownership of any\nof such securities; (ii) enter into or agree, offer, propose or seek to enter into, or otherwise be involved in or part of, directly or indirectly, any\nacquisition transaction or other business combination relating to all or part of the Company or any of its subsidiaries (whether by way of merger,\nconsolidation, purchase, exchange, recapitalization, restructuring or otherwise) or any acquisition transaction for all or part of the assets of the\nCompany or any of its businesses or subsidiaries; (iii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as\nsuch terms are used in the rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect\nto the voting of, any voting securities of the Company; (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3)\nof the Exchange Act) with respect to any securities of the Company or any of its subsidiaries; (v) seek or propose, alone or in concert with others, to\ninfluence or control the management or policies of the Company or any of its subsidiaries or to become, designate, replace or remove a member of\nthe board of directors of the Company or any of its subsidiaries; (vi) directly or indirectly enter into any discussions, negotiations, agreements,\narrangements or understandings with any other person with respect to any of the foregoing activities or propose any of such activities to any other\nperson; (vii) advise, assist, encourage, or act as a financing source for or otherwise invest in any other person in connection any of the foregoing\nactivities; (viii) disclose (other than, to the extent otherwise permitted hereby, to the\n5\nCompany or its Representatives) any intention, plan or arrangement inconsistent with any of the foregoing; (ix) request that the Company, the\nCompany Board or any of their Representatives, directly or indirectly, (A) amend or waive any provision of this Paragraph 4.1 (including this clause\n(ix)) or (B) otherwise consent to any action inconsistent with any provision of this Paragraph 4.1 (including this clause (ix)); (x) take any action that\nmight require the Company or any of its Representatives to make a public announcement regarding any of the activities referred to in clauses (i)-\n(viii) of this Paragraph 4.1 (other than disclosures otherwise expressly permitted by this letter agreement); or (xi) agree to take any of the foregoing\nactions.\n4.2 Prohibition on Voting Restrictions. For a period of two (2) years from the date hereof, unless consented to in advance by the Company\nBoard to do so (which invitation will be expressly set forth in a written instrument from, and duly authorized by, the Company Board), you shall not,\nand you shall cause your Representatives (other than third party advisors not taking action on your behalf or at your direction) not to, enter into any\nexclusivity, lock-up or other agreement, arrangement or understanding, whether written or oral, with any current or future shareholder of the\nCompany or other person that has the right to vote or direct the voting of voting securities of the Company that is intended or could reasonably be\nexpected to limit, restrict, restrain or otherwise impair in any manner, directly or indirectly, the ability of such person to (i) vote any voting securities\nof the Company beneficially owned by such person (or with respect to which such person otherwise has the right to vote or to the direct the voting of\nsuch voting securities) in favor of, or (ii) tender any such voting or equity securities of the Company into any offer made in connection with, any\ntransaction involving the Company.\n4.3 Securities Laws. You understand and agree that you are aware, and that you will advise your Representatives, that the U.S . federal and state\nsecurities laws prohibit, and certain foreign laws may prohibit, any person who has material, non-public information about a company from\npurchasing or selling securities of such company or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that the person is likely to purchase or sell such securities. You will, and will cause your Representatives to, comply with\nU.S . federal and state securities laws and foreign laws in connection with the receipt of Evaluation Material contemplated hereby.\n5. Certain Additional Restrictions\n5.1 No Partnering. Neither you nor your affiliates nor any of your Representatives have or will, without the prior written consent of the\nCompany Board, enter into, directly or indirectly, any discussions, negotiations, agreements, arrangements or understandings with any person (other\nthan your Representatives), with respect to a possible Transaction or a transaction involving any assets of the Company or that could otherwise affect\nsuch person’s decisions or actions with respect to a possible Transaction.\n5.2 Prohibition on Exclusive Arrangements. You have not and will not, directly or indirectly, enter into any agreement, arrangement or\nunderstanding, whether written or oral, with any potential financing source or sources which may reasonably be expected to limit, restrict, restrain,\notherwise impair in any manner, directly or indirectly, the ability of such financing source or sources to provide financing or other assistance to any\nother party in any other transaction involving the Company.\n6\n6. Miscellaneous.\n6.1 Breach. You shall be responsible for ensuring that your Representatives adhere to the terms of this letter agreement as if such persons were\noriginal parties hereto, you shall be responsible for any breach of this letter agreement by you or any of your Representatives, and you agree, at your\nsole expense, to take all reasonable measures to avoid any prohibited or unauthorized disclosure or use of the Evaluation Material or other breach of\nthis letter agreement by any of your Representatives. The foregoing obligation shall not limit the remedies available to the Company for any breach\nof this letter agreement by any of your Representatives.\n6.2 Process. You understand and agree that: (i) unless and until a Definitive Transaction Agreement has been executed and delivered by the\nCompany and you, none of the Company, the Company Board nor any of their Representatives will be under any legal obligation of any kind\nwhatsoever with respect to the Transaction, and except as arising pursuant to such a Definitive Transaction Agreement, neither you nor any of your\nRepresentatives shall have, and you hereby waive for yourself and on their behalf, any claims whatsoever against the Company, the Company Board\nor any of their Representatives arising out of or relating to the Transaction; (ii) no Information provided, including any statements made, to you or\nany of your Representatives prior to, in the course of or for the purpose of negotiations relating to a Transaction, will constitute an offer by the\nCompany or on the Company’s behalf, nor will you or any of your Representatives claim that any such Information forms the basis of any contract\nor agreement (including, without limitation, an agreement in principle), to engage in any transaction with you, and you hereby waive any claims to\nthe contrary; (iii) the Company Board and the Company reserve the right, in their sole discretion, to both reject any and all proposals made by you or\nany of your Representatives with regard to a Transaction and/or to terminate discussions and negotiations with you or any of your Representatives at\nany time for any reason or no reason; (iv) the Company, the Company Board or any of their Representatives may enter into negotiations and\ndiscussions with any other parties for a possible transaction in lieu of the Transaction with you and enter into a definitive agreement with respect\nthereto without prior notice to you or any of your Representatives; (v) the Company Board and the Company may change in any way in their sole\ndiscretion the Company’s processes or procedures for considering the Transaction or any transaction in lieu of the Transaction without prior notice to\nyou or any of your Representatives; (vi) the Company Board and the Company retain the right to determine, in their sole discretion, what\nInformation it will make available to you or any of your Representatives; and (vii) any passwords provided to you in connection with an electronic\ndata room (“EDR”), if any, will be used only by the individuals to whom such passwords are issued, and that should you desire additional\nindividuals to access the EDR, you will request additional passwords for such individuals.\n6.3 Modification and Waiver. This letter agreement may be modified or waived only by a separate writing by the Company and you expressly\nso modifying or waiving this letter agreement. It is understood and agreed that no failure or delay by the Company, or the Company Board on behalf\nof the Company, in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n7\n6.4 Severability. The illegality, invalidity or unenforceability of any provision of this letter agreement in any jurisdiction shall not affect the\nlegality, validity or enforceability of any other provision of this letter agreement or the legality, validity or enforceability of such provision of this\nletter agreement in any other jurisdiction. In the event that any of the provisions of this letter agreement shall be held by a court or other tribunal of\ncompetent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be deemed limited or eliminated only to the minimum extent\nnecessary so that this letter agreement shall otherwise remain in full force and effect.\n6.5 Entire Agreement. This letter agreement contains the entire agreement between the Company and you concerning the subject matter hereof\nand supersedes all previous agreements, written or oral, to the extent relating to the exchange of Evaluation Material contemplated hereby or any\nconsideration, discussions or negotiations of a Transaction.\n6.6 Remedies. It is further understood and agreed that money damages may not be a sufficient remedy for any breach of this letter agreement\nby you or any of your Representatives and, in addition to all other remedies that the Company or any of its Representatives may have at law or in\nequity and without limiting any of the foregoing, the Company and any of its Representatives shall be entitled to equitable relief, including, without\nlimitation, injunction and specific performance, as a remedy for any such breach and you hereby waive any requirement for the securing or posting\nof any bond in connection with such remedy. Notwithstanding anything to the contrary contained in this letter agreement and without limiting any of\nthe Company’s other rights and remedies available in connection with this letter agreement, if a court of competent jurisdiction determines that you\nor any of your Representatives has breached any provision of this letter agreement, you shall be liable for and pay to the Company on demand any\ndamages awarded, and the reasonable legal fees and expenses incurred by the Company in connection with such breach, including any litigation\nrelated thereto and any appeal therefrom.\n6.7 Governing Law; Venue. This letter agreement shall be governed by and construed in accordance with the laws of the State of Delaware\nwithout giving effect to the conflicts of law provisions thereof. The parties hereto hereby irrevocably and unconditionally consent to the sole and\nexclusive jurisdiction of, and waive any objection to the laying of venue in, the U.S. federal and state court sitting in the City of Wilmington\n(collectively, the “Delaware Courts”) for any action, suit or proceeding arising out of or relating to this letter agreement, and agree not to commence\nany action, suit or proceeding related thereto except in a Delaware Court. Each of the parties hereto further agrees that service of any process,\nsummons, notice or document by registered mail to its address set forth on the first page of this letter agreement shall be effective service of process\nfor any action, suit or proceeding brought against it in any Delaware Court.\n6.8 Assignment; Binding Effect. You may not assign your rights or obligations under this letter agreement to any person. The Company may\nassign its rights and obligations, in whole or in part, under this letter agreement to any person. This letter agreement shall be binding upon you and\nyour respective successors and permitted assigns and shall inure to the benefit of, and be enforceable by, the Company and its respective successors\nand assigns.\n6.9 Expenses. All costs and expenses incurred in connection with this letter agreement and the consideration by the parties of the Transaction,\nincluding, without limitation, all fees of law firms, commercial banks, investment banks, accountants, public relations firms, experts and consultants,\nshall be paid by the party incurring such cost or expense.\n8\n6.10 Headings. Headings included in this letter agreement are for the convenience of the parties only and shall be given no substantive or\ninterpretive effect.\n6.11 Counterparts; Signatures. This letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an\noriginal but all of which together shall constitute one and the same instrument. This letter agreement or any counterpart may be executed and\ndelivered by facsimile copies or electronic transmission, each of which shall be deemed to be an original.\n{Remainder of page intentionally left blank.}\n9\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nWILLIAMS CONTROLS, INC.\nBy: /s/ Patrick Cavanagh\nName: Patrick Cavanagh\nTitle: Chief Executive Officer\nAccepted and agreed as of this 5 day of July, 2012:\nCURTISS-WRIGHT CONTROLS, INC.\nBy: /s/ Brian Freeman\nName: Brian Freeman\nTitle: Vice President Technology & Market\nDevelopment\n10\nth\nAnnex A\nCompany Representatives\nHOULIHAN LOKEY – NEW YORK\n245 Park Avenue, 20 Floor\nNew York, NY 10167\nPhone: (212) 497-4100\nName\nOffice Information\nJim Lavelle\nManaging Director\nAssistant:\nTana Dippolito\n(212) 497-7911\nTDippolito@HL.com\nTel:\nFax:\nMobile:\nEmail:\n(212) 497-4107\n(212) 497-7976\n(203) 858-4632\nJLavelle@HL.com\nGene Bazemore\nSenior Vice President\nAssistant:\nTana Dippolito\n(212) 497-7911\nTDippolito@HL.com\nTel:\nFax:\nMobile:\nEmail:\n(212) 497-7842\n(212) 497-7976\n(917) 605-1163\nEBazemore@HL.com\nDisha Mehta\nAssociate\nAssistant:\nTana Dippolito\n(212) 497-7911\nTDippolito@HL.com\nTel:\nFax:\nMobile:\nEmail:\n(212) 497-4249\n(212) 497-7976\n(512) 944-7280\nDMehta@HL.com\nBill Bronander\nFinancial Analyst\nTel:\nFax:\nMobile:\nEmail:\n(212) 497-7879\n(212) 497-7976\n(201) 669-9149\nBBronander@HL.com\n11\nth
+d359b7e3900a7bb1d54a3710449422fc.pdf	effective_date jurisdiction party term	Exhibit A\nNon-Disclosure Agreement\nDecember 8, 2015\nReference is made to the Standstill Agreement, dated December 8, 2015 (the “Standstill Agreement”), by and among Anchor Bancorp\n(the “Company”), Varonica S. Ragan (the “Director”) and Joel S. Lawson IV (“Lawson”). Capitalized terms used but not defined herein shall have\nthe meanings ascribed to them in the Standstill Agreement, and the rules of interpretation set forth in Section 7 of the Standstill Agreement shall\napply to this Non-Disclosure Agreement mutatis mutandis.\n1.\nThe Director may be provided certain information and data in connection with her serving as a director of the Company or\nAnchor Bank that the Company or Anchor Bank wishes to keep confidential, including information (whether furnished in writing or electronic\nformat or orally) regarding the Company’s and Anchor Bank’s governance, board of directors, management, plans, strategies, business, finances or\noperations and information that the Company or Anchor Bank has obtained from third parties and with respect to which the Company or Anchor\nBank is obligated to maintain confidentiality (collectively, “Confidential Information”). For the avoidance of doubt, Confidential Information also\nincludes all information regarding the operations, procedures, strategies, plans and decisions of the Strategy Committee of the Company’s Board of\nDirectors. Except as otherwise permitted in this Non-Disclosure Agreement, the Director will not disclose any Confidential Information in any\nmanner whatsoever or use any Confidential Information other than in connection with serving as a director of the Company or Anchor Bank\nwithout, in each instance, securing the prior written consent of the Company (acting through a resolution of a majority of the Company’s directors).\n2.\nExcept as set forth in this Section 2, this Non-Disclosure Agreement shall not prevent the Director from privately disclosing\nConfidential Information to (i) officers, directors, accountants and counsel for the Company or Anchor Bank, (ii) the Director ’s legal counsel or\nlegal counsel to Lawson (each a “Director Representative” and collectively, the “Director Representatives”) who needs to know such information for\nthe sole purpose of advising the Director on her actions as a director of the Company or Anchor Bank or advising the Director or Lawson with\nrespect to each of their respective investments in the Company, as applicable, or (iii) Lawson. Notwithstanding the foregoing, it is understood and\nagreed that the Director will not disclose any information that the Director learns or obtains in her capacity as a director of the Company or Anchor\nBank to any Director Representative or Lawson to the extent such disclosure would be reasonably likely to constitute a breach of the Director’s\nfiduciary duties to the Company or Anchor Bank or a waiver of the attorney-client privilege between the Company or Anchor Bank and its counsel\nor the Company’s or Anchor Bank’s attorney work product privilege. The Director also acknowledges and agrees that she will not disclose, and is\nprohibited by law and regulation from disclosing, to any Director Representative or Lawson any reports of examination or other confidential\nsupervisory information of any bank regulatory authority, including the Board of Governors of the Federal Reserve System, the Federal Reserve\nBank of San Francisco, the Washington Department of Financial Institutions or the Federal Deposit Insurance Corporation. Any Director\nRepresentative shall only be provided Confidential\nExhibit A-1\nInformation to the extent that such Director Representative is informed of the confidential nature of the Confidential Information and agrees or is\notherwise obligated to keep such information confidential and to restrict the use of such confidential information in accordance with the terms of this\nNon-Disclosure Agreement. Lawson agrees to keep confidential the Confidential Information and to restrict the use of such Confidential\nInformation in accordance with the terms of this Non-Disclosure Agreement, to be bound by this Non-Disclosure Agreement on the same terms as\nthe Director by countersigning this Non-Disclosure Agreement and not to use any Confidential Information in a manner that may be detrimental to\nthe Company or its subsidiaries, including Anchor Bank, except as permitted by the terms of this Non-Disclosure Agreement. The Director and\nLawson shall be severally responsible for any breach of this Agreement by the Director, Lawson or any of their respective representatives.\n3.\nThe term “Confidential Information” shall not include information that (a) is at the time of disclosure or becomes generally\navailable to the public other than as a result of a disclosure by the Director, a Director Representative or Lawson in violation of the terms of this\nNon-Disclosure Agreement; (b) was, prior to disclosure by the Company or Anchor Bank, already in the possession of the Director, a Director\nRepresentative or Lawson; provided that the source of such information was, to such person’s knowledge, not bound by a confidentiality agreement\nwith, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or Anchor Bank, at the time such information was\ndisclosed to such person; (c) becomes available to the Director, a Director Representative or Lawson on a non-confidential basis from a source other\nthan the Company, an affiliate of the Company (including Anchor Bank) or an agent, representative, attorney, advisor, director, officer or employee\nof the Company or Anchor Bank (collectively, the “Company Representatives”) that is, to such person’s knowledge, not bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or Anchor Bank, and is not, to such person’s\nknowledge, under an obligation to the Company or Anchor Bank not to transmit the information to such person; or (d) was independently developed\nby the Director, a Director Representative or Lawson without reference to or use of the Confidential Information.\n4.\nThe Director is aware, and will advise any Director Representative or Lawson who is informed of the matters that are the subject\nof this Non-Disclosure Agreement, that the Confidential Information may constitute material, non-public information and of the restrictions imposed\nby the United States securities laws on the purchase or sale of securities by any person who is aware of material, non-public information and on the\ncommunication of such information to any other person who may purchase or sell such securities on the basis of such information. The Director,\nLawson or any Director Representative to whom the Director transmits Confidential Information under this Non-Disclosure Agreement will comply\nwith all applicable federal and state securities laws in connection with the purchase or sale, directly or indirectly, of securities of the Company or any\nother entity of which the Director is provided material non-public information in her capacity as a director of the Company or Anchor Bank for as\nlong as the Director, Lawson or any Director Representative are in possession of material non-public information about the Company or such other\nentity. The Company agrees to inform Lawson whenever the trading window applicable to all officers and directors of the Company is\nopen. Further, on the Termination Date (as defined below), the Company shall notify Lawson if the trading window applicable to all officers and\ndirectors of the Company is open. The Company agrees that the Director and Lawson are not restricted by this Non-Disclosure Agreement from\nExhibit A-2\nsecurities of the Company so long as neither the Director nor Lawson is in possession of material, non-public information relating to the Company,\nsubject to their individual compliance with all applicable securities laws. The Director, Lawson and the Company acknowledge that none of the\nprovisions hereto shall in any way limit the Director ’s or Lawson’s activities in the ordinary course of business if such activities will not violate\napplicable securities laws or the obligations set forth in this Non-Disclosure Agreement.\n5.\nEach of the Director, Lawson and any Director Representative to whom the Director transmits Confidential Information under\nthis Non-Disclosure Agreement acknowledges, or shall be deemed to acknowledge, that none of the Company, any affiliate of the Company or any\nCompany Representative makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation. None of the Company, any affiliate of the Company or any Company Representative shall have any liability to the Director, Lawson or\nany Director Representative hereunder relating to or resulting from the use of the Confidential Information by the Director, Lawson or any Director\nRepresentative or any errors in or omissions from the Confidential Information.\n6.\nNotwithstanding anything herein to the contrary, in the event that the Director, any Director Representative or Lawson is required\nby applicable law, regulation or legal or judicial process (including without limitation, by deposition, interrogatory, request for documents,\nsubpoena, civil investigative demand or similar process) to disclose any Confidential Information, the Director will give the Company prompt\nwritten notice, to the extent not legally prohibited, of such requirement so that the Company or Anchor Bank may seek an appropriate protective\norder or other remedy, at its sole expense, or waive compliance with the applicable provisions of this Non-Disclosure Agreement. If the Company or\nAnchor Bank seeks a protective order, the Director and Lawson agree to, and shall cause any Director Representative to, provide such cooperation to\nthe extent permitted by law, as the Company or Anchor Bank shall reasonably request and in no event will they oppose action by the Company or\nAnchor Bank to obtain a protective order or other relief to prevent or otherwise narrow the disclosure of Confidential Information or to obtain\nreliable assurance that confidential treatment will be afforded to the Confidential Information. If in the absence of a protective order, the Director,\nany Director Representative or Lawson, based upon the advice of counsel, is legally required to disclose Confidential Information, such person or\nentity may disclose without liability under this Non-Disclosure Agreement such portion of the Confidential Information that counsel advises that the\nDirector, any Director Representative or Lawson is legally required to disclose.\nFor the avoidance of doubt, there shall be no legal requirement applicable to the Director or Lawson to disclose any Confidential\nInformation solely by virtue of the fact that, absent such disclosure, such parties would be prohibited from purchasing, selling, or engaging in\nderivative or other transactions with respect to securities of the Company.\n7.\nThe parties agree that irreparable damage would occur in the event any of the provisions of this Non-Disclosure Agreement were\nnot performed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly,\nthe parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Non-Disclosure Agreement and to enforce specifically\nthe terms and provisions of this Non-Disclosure Agreement exclusively in the State of Washington with a court of competent jurisdiction located in\nThurston County, Washington (the “Washington Courts”), in\nExhibit A-3\naddition to any other remedies at law or in equity, and each party agrees it will not take any action, directly or indirectly, in opposition to the party\nseeking relief on the grounds that any other remedy or relief is available at law or in equity. Each of the parties hereto agrees to waive any bonding\nrequirement under any applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. Furthermore, each of the\nparties hereto irrevocably (a) consents to submit itself to the personal jurisdiction of the Washington Courts in the event any dispute arises out of this\nNon-Disclosure Agreement, (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from\nthe Washington Courts, (c) agrees that it shall not bring any action relating to this Non-Disclosure Agreement in any court other than the Washington\nCourts, (d) waives the right to trial by jury, and (d) consents to service of process by the United States Postal Service or reputable overnight mail\ndelivery service, in each case, signature requested, to the address set forth in Section 13 of the Standstill Agreement or as otherwise provided by\napplicable law. THIS NON-DISCLOSURE AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITH RESPECT TO\nVALIDITY, INTERPRETATION, EFFECT AND ENFORCEMENT, BY THE LAWS OF THE STATE OF WASHINGTON WITHOUT GIVING\nEFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS\nOF ANY OTHER JURISDICTION.\n8.\nThis Non-Disclosure Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by\neither party in exercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further\nexercise of any right hereunder.\n9.\nUnless otherwise agreed in writing between the parties, this Non-Disclosure Agreement shall remain in full force and effect until\none (1) year from the date of this Non-Disclosure Agreement (the “Termination Date”), provided, however, that upon expiration of the Standstill\nPeriod, nothing herein shall preclude Lawson from seeking the election of director candidates or submitting proposals at the Company’s 2016 annual\nmeeting of shareholders, including without limitation, making public or private statements relating to the Company if those statements do not\nreference, directly or indirectly, the Confidential Information or otherwise violate the terms of this Agreement. Notwithstanding the foregoing, any\nConfidential Information constituting trade secrets of the Company or Anchor Bank (as defined in 18 U.S.C. § 1839(3)) shall be kept confidential in\naccordance with the obligations of this Non-Disclosure Agreement for such longer time as such information constitutes a trade secret of the\nCompany or Anchor Bank. The invalidity or unenforceability of any provision of this Non-Disclosure Agreement shall not affect the validity or\nenforceability of any other provision hereof.\n10.\nAll Confidential Information shall remain the property of the Company or Anchor Bank and neither the Director, any Director\nRepresentative or Lawson shall by virtue of any disclosure of or use of any Confidential Information acquire any rights with respect thereto, all of\nwhich rights (including all intellectual property rights) shall remain exclusively with the Company or Anchor Bank. Upon the request of the\nCompany at any time, the Director and Lawson will, and will cause any Director Representative to, promptly return to the Company or destroy all\nhard copies of the Confidential Information and use reasonable efforts to permanently erase or delete all electronic copies of the Confidential\nInformation in the possession or control of the Director, any Director Representative or Lawson. Notwithstanding anything to the\nExhibit A-4\ncontrary contained in this paragraph, the Director, Lawson and any Director Representative shall be permitted to retain such Confidential\nInformation as is necessary to enable them to comply with any applicable document retention requirements under applicable law or regulation and to\nretain any computer records and computer files containing any Confidential Information if required pursuant to their respective current automatic\narchiving and backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as the case may\nbe.\n11.\nUnless and until any substitute director appointed in accordance with Section 1 of the Standstill Agreement executes a joinder to\nthis Non-Disclosure Agreement and agrees to be bound by the terms hereof applicable to the Director, Lawson shall not be permitted to discuss\nConfidential Information with, or obtain Confidential Information from, such substitute director.\nAcceptance of the above terms shall be indicated by having this Non-Disclosure Agreement countersigned by the Director and Lawson.\nSincerely,\nANCHOR BANCORP\nBy:\n/s/Jerald L. Shaw\nName: Jerald L. Shaw\nTitle: President and Chief Executive Officer\nAcknowledged and agreed as of the\ndate first written above:\n/s/Varonica S. Ragan\nVaronica S. Ragan, as Director\n/s/Joel S. Lawson IV\nJoel S. Lawson IV\n[Signature Page to Non-Disclosure Agreement]\nExhibit A-5	Exhibit A\nNon-Disclosure Agreement\nDecember 8, 2015\nReference is made to the Standstill Agreement, dated December 8, 2015 (the “Standstill Agreement”), by and among Anchor Bancorp\n(the “Company”), Varonica S. Ragan (the “Director”) and Joel S. Lawson IV (“Lawson”). Capitalized terms used but not defined herein shall have\nthe meanings ascribed to them in the Standstill Agreement, and the rules of interpretation set forth in Section 7 of the Standstill Agreement shall\napply to this Non-Disclosure Agreement mutatis mutandis.\n1. The Director may be provided certain information and data in connection with her serving as a director of the Company or\nAnchor Bank that the Company or Anchor Bank wishes to keep confidential, including information (whether furnished in writing or electronic\nformat or orally) regarding the Company’s and Anchor Bank’s governance, board of directors, management, plans, strategies, business, finances or\noperations and information that the Company or Anchor Bank has obtained from third parties and with respect to which the Company or Anchor\nBank is obligated to maintain confidentiality (collectively, “Confidential Information). For the avoidance of doubt, Confidential Information also\nincludes all information regarding the operations, procedures, strategies, plans and decisions of the Strategy Committee of the Company’s Board of\nDirectors. Except as otherwise permitted in this Non-Disclosure Agreement, the Director will not disclose any Confidential Information in any\nmanner whatsoever or use any Confidential Information other than in connection with serving as a director of the Company or Anchor Bank\nwithout, in each instance, securing the prior written consent of the Company (acting through a resolution of a majority of the Company’s directors).\n2. Except as set forth in this Section 2, this Non-Disclosure Agreement shall not prevent the Director from privately disclosing\nConfidential Information to (i) officers, directors, accountants and counsel for the Company or Anchor Bank, (ii) the Director’s legal counsel or\nlegal counsel to Lawson (each a “Director Representative” and collectively, the “Director Representatives”) who needs to know such information for\nthe sole purpose of advising the Director on her actions as a director of the Company or Anchor Bank or advising the Director or Lawson with\nrespect to each of their respective investments in the Company, as applicable, or (iii) Lawson. Notwithstanding the foregoing, it is understood and\nagreed that the Director will not disclose any information that the Director learns or obtains in her capacity as a director of the Company or Anchor\nBank to any Director Representative or Lawson to the extent such disclosure would be reasonably likely to constitute a breach of the Director’s\nfiduciary duties to the Company or Anchor Bank or a waiver of the attorney-client privilege between the Company or Anchor Bank and its counsel\nor the Company’s or Anchor Bank’s attorney work product privilege. The Director also acknowledges and agrees that she will not disclose, and is\nprohibited by law and regulation from disclosing, to any Director Representative or Lawson any reports of examination or other confidential\nsupervisory information of any bank regulatory authority, including the Board of Governors of the Federal Reserve System, the Federal Reserve\nBank of San Francisco, the Washington Department of Financial Institutions or the Federal Deposit Insurance Corporation. Any Director\nRepresentative shall only be provided Confidential\nExhibit A-1\nInformation to the extent that such Director Representative is informed of the confidential nature of the Confidential Information and agrees or is\notherwise obligated to keep such information confidential and to restrict the use of such confidential information in accordance with the terms of this\nNon-Disclosure Agreement. Lawson agrees to keep confidential the Confidential Information and to restrict the use of such Confidential\nInformation in accordance with the terms of this Non-Disclosure Agreement, to be bound by this Non-Disclosure Agreement on the same terms as\nthe Director by countersigning this Non-Disclosure Agreement and not to use any Confidential Information in a manner that may be detrimental to\nthe Company or its subsidiaries, including Anchor Bank, except as permitted by the terms of this Non-Disclosure Agreement. The Director and\nLawson shall be severally responsible for any breach of this Agreement by the Director, Lawson or any of their respective representatives.\n3. The term “Confidential Information” shall not include information that (a) is at the time of disclosure or becomes generally\navailable to the public other than as a result of a disclosure by the Director, a Director Representative or Lawson in violation of the terms of this\nNon-Disclosure Agreement; (b) was, prior to disclosure by the Company or Anchor Bank, already in the possession of the Director, a Director\nRepresentative or Lawson; provided that the source of such information was, to such person’s knowledge, not bound by a confidentiality agreement\nwith, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or Anchor Bank, at the time such information was\ndisclosed to such person; (c) becomes available to the Director, a Director Representative or Lawson on a non-confidential basis from a source other\nthan the Company, an affiliate of the Company (including Anchor Bank) or an agent, representative, attorney, advisor, director, officer or employee\nof the Company or Anchor Bank (collectively, the “Company Representatives”) that is, to such person’s knowledge, not bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or Anchor Bank, and is not, to such person’s\nknowledge, under an obligation to the Company or Anchor Bank not to transmit the information to such person; or (d) was independently developed\nby the Director, a Director Representative or Lawson without reference to or use of the Confidential Information.\n4. The Director is aware, and will advise any Director Representative or Lawson who is informed of the matters that are the subject\nof this Non-Disclosure Agreement, that the Confidential Information may constitute material, non-public information and of the restrictions imposed\nby the United States securities laws on the purchase or sale of securities by any person who is aware of material, non-public information and on the\ncommunication of such information to any other person who may purchase or sell such securities on the basis of such information. The Director,\nLawson or any Director Representative to whom the Director transmits Confidential Information under this Non-Disclosure Agreement will comply\nwith all applicable federal and state securities laws in connection with the purchase or sale, directly or indirectly, of securities of the Company or any\nother entity of which the Director is provided material non-public information in her capacity as a director of the Company or Anchor Bank for as\nlong as the Director, Lawson or any Director Representative are in possession of material non-public information about the Company or such other\nentity. The Company agrees to inform Lawson whenever the trading window applicable to all officers and directors of the Company is\nopen. Further, on the Termination Date (as defined below), the Company shall notify Lawson if the trading window applicable to all officers and\ndirectors of the Company is open. The Company agrees that the Director and Lawson are not restricted by this Non-Disclosure Agreement from\nExhibit A-2\n \nsecurities of the Company so long as neither the Director nor Lawson is in possession of material, non-public information relating to the Company,\nsubject to their individual compliance with all applicable securities laws. The Director, Lawson and the Company acknowledge that none of the\nprovisions hereto shall in any way limit the Director’s or Lawson’s activities in the ordinary course of business if such activities will not violate\napplicable securities laws or the obligations set forth in this Non-Disclosure Agreement.\n5. Each of the Director, Lawson and any Director Representative to whom the Director transmits Confidential Information under\nthis Non-Disclosure Agreement acknowledges, or shall be deemed to acknowledge, that none of the Company, any affiliate of the Company or any\nCompany Representative makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation. None of the Company, any affiliate of the Company or any Company Representative shall have any liability to the Director, Lawson or\nany Director Representative hereunder relating to or resulting from the use of the Confidential Information by the Director, Lawson or any Director\nRepresentative or any errors in or omissions from the Confidential Information.\n6. Notwithstanding anything herein to the contrary, in the event that the Director, any Director Representative or Lawson is required\nby applicable law, regulation or legal or judicial process (including without limitation, by deposition, interrogatory, request for documents,\nsubpoena, civil investigative demand or similar process) to disclose any Confidential Information, the Director will give the Company prompt\nwritten notice, to the extent not legally prohibited, of such requirement so that the Company or Anchor Bank may seek an appropriate protective\norder or other remedy, at its sole expense, or waive compliance with the applicable provisions of this Non-Disclosure Agreement. If the Company or\nAnchor Bank seeks a protective order, the Director and Lawson agree to, and shall cause any Director Representative to, provide such cooperation to\nthe extent permitted by law, as the Company or Anchor Bank shall reasonably request and in no event will they oppose action by the Company or\nAnchor Bank to obtain a protective order or other relief to prevent or otherwise narrow the disclosure of Confidential Information or to obtain\nreliable assurance that confidential treatment will be afforded to the Confidential Information. If in the absence of a protective order, the Director,\nany Director Representative or Lawson, based upon the advice of counsel, is legally required to disclose Confidential Information, such person or\nentity may disclose without liability under this Non-Disclosure Agreement such portion of the Confidential Information that counsel advises that the\nDirector, any Director Representative or Lawson is legally required to disclose.\nFor the avoidance of doubt, there shall be no legal requirement applicable to the Director or Lawson to disclose any Confidential\nInformation solely by virtue of the fact that, absent such disclosure, such parties would be prohibited from purchasing, selling, or engaging in\nderivative or other transactions with respect to securities of the Company.\n7. The parties agree that irreparable damage would occur in the event any of the provisions of this Non-Disclosure Agreement were\nnot performed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly,\nthe parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Non-Disclosure Agreement and to enforce specifically\nthe terms and provisions of this Non-Disclosure Agreement exclusively in the State of Washington with a court of competent jurisdiction located in\nThurston County, Washington (the “Washington Courts™), in\nExhibit A-3\naddition to any other remedies at law or in equity, and each party agrees it will not take any action, directly or indirectly, in opposition to the party\nseeking relief on the grounds that any other remedy or relief is available at law or in equity. Each of the parties hereto agrees to waive any bonding\nrequirement under any applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. Furthermore, each of the\nparties hereto irrevocably (a) consents to submit itself to the personal jurisdiction of the Washington Courts in the event any dispute arises out of this\nNon-Disclosure Agreement, (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from\nthe Washington Courts, (c) agrees that it shall not bring any action relating to this Non-Disclosure Agreement in any court other than the Washington\nCourts, (d) waives the right to trial by jury, and (d) consents to service of process by the United States Postal Service or reputable overnight mail\ndelivery service, in each case, signature requested, to the address set forth in Section 13 of the Standstill Agreement or as otherwise provided by\napplicable law. THIS NON-DISCLOSURE AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITH RESPECT TO\nVALIDITY, INTERPRETATION, EFFECT AND ENFORCEMENT, BY THE LAWS OF THE STATE OF WASHINGTON WITHOUT GIVING\nEFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS\nOF ANY OTHER JURISDICTION.\n8. This Non-Disclosure Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by\neither party in exercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further\nexercise of any right hereunder.\n9. Unless otherwise agreed in writing between the parties, this Non-Disclosure Agreement shall remain in full force and effect until\none (1) year from the date of this Non-Disclosure Agreement (the “Termination Date”), provided, however, that upon expiration of the Standstill\nPeriod, nothing herein shall preclude Lawson from seeking the election of director candidates or submitting proposals at the Company’s 2016 annual\nmeeting of shareholders, including without limitation, making public or private statements relating to the Company if those statements do not\nreference, directly or indirectly, the Confidential Information or otherwise violate the terms of this Agreement. Notwithstanding the foregoing, any\nConfidential Information constituting trade secrets of the Company or Anchor Bank (as defined in 18 U.S.C. § 1839(3)) shall be kept confidential in\naccordance with the obligations of this Non-Disclosure Agreement for such longer time as such information constitutes a trade secret of the\nCompany or Anchor Bank. The invalidity or unenforceability of any provision of this Non-Disclosure Agreement shall not affect the validity or\nenforceability of any other provision hereof.\n10. All Confidential Information shall remain the property of the Company or Anchor Bank and neither the Director, any Director\nRepresentative or Lawson shall by virtue of any disclosure of or use of any Confidential Information acquire any rights with respect thereto, all of\nwhich rights (including all intellectual property rights) shall remain exclusively with the Company or Anchor Bank. Upon the request of the\nCompany at any time, the Director and Lawson will, and will cause any Director Representative to, promptly return to the Company or destroy all\nhard copies of the Confidential Information and use reasonable efforts to permanently erase or delete all electronic copies of the Confidential\nInformation in the possession or control of the Director, any Director Representative or Lawson. Notwithstanding anything to the\nExhibit A-4\ncontrary contained in this paragraph, the Director, Lawson and any Director Representative shall be permitted to retain such Confidential\nInformation as is necessary to enable them to comply with any applicable document retention requirements under applicable law or regulation and to\nretain any computer records and computer files containing any Confidential Information if required pursuant to their respective current automatic\narchiving and backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as the case may\nbe.\n11. Unless and until any substitute director appointed in accordance with Section 1 of the Standstill Agreement executes a joinder to\nthis Non-Disclosure Agreement and agrees to be bound by the terms hereof applicable to the Director, Lawson shall not be permitted to discuss\nConfidential Information with, or obtain Confidential Information from, such substitute director.\nAcceptance of the above terms shall be indicated by having this Non-Disclosure Agreement countersigned by the Director and Lawson.\nSincerely,\nANCHOR BANCORP\nBy: [s/Jerald L. Shaw\nName: Jerald L. Shaw\nTitle:  President and Chief Executive Officer\nAcknowledged and agreed as of the\ndate first written above:\n/s/Varonica S. Ragan\nVaronica S. Ragan, as Director\n/s/Joel S. Lawson IV\nJoel S. Lawson IV\n[Signature Page to Non-Disclosure Agreement]\nExhibit A-5	Exhibit A\nNon-Disclosure Agreement\nDecember 8, 2015\nReference is made to the Standstill Agreement, dated December 8, 2015 (the "Standstill Agreement"), by and among Anchor Bancorp\n(the "Company"), Varonica S. Ragan (the "Director") and Joel S. Lawson IV ("Lawson"). Capitalized terms used but not defined herein shall have\nthe meanings ascribed to them in the Standstill Agreement, and the rules of interpretation set forth in Section 7 of the Standstill Agreement shall\napply to this Non-Disclosure Agreement mutatis mutandis.\n1.\nThe Director may be provided certain information and data in connection with her serving as a director of the Company or\nAnchor Bank that the Company or Anchor Bank wishes to keep confidential, including information (whether furnished in writing or electronic\nor orally) regarding the Company's and Anchor Bank's governance, board of directors, management, plans, strategies, business, finances or\nand information that the Company or Anchor Bank has obtained from third parties and with respect to which the Company or Anchor\nobligated\nto\nmaintain\nconfidentiality\n(collectively,\n"Confidential\nInformation").\nFor\nthe\navoidance\nof\ndoubt,\nConfidential\nInformation\nalso\nall information regarding the operations, procedures, strategies, plans and decisions of the Strategy Committee of the Company's Board\nof\nExcept as otherwise permitted in this Non-Disclosure Agreement, the Director will not disclose any Confidential Information in any\nwhatsoever or use any Confidential Information other than in connection with serving as a director of the Company or Anchor Bank\nin each instance, securing the prior written consent of the Company (acting through a resolution of a majority of the Company's directors).\n2.\nExcept as set forth in this Section 2, this Non-Disclosure Agreement shall not prevent the Director from privately disclosing\nConfidential Information to (i) officers, directors, accountants and counsel for the Company or Anchor Bank, (ii) the Director's legal counsel or\nlegal counsel to Lawson (each a "Director Representative" and collectively, the "Director Representatives") who needs to know such information for\nthe sole purpose of advising the Director on her actions as a director of the Company or Anchor Bank or advising the Director or Lawson\nwith\nrespect to each of their respective investments in the Company, as applicable, or (iii) Lawson. Notwithstanding the foregoing, it is understood and\nagreed that the Director will not disclose any information that the Director learns or obtains in her capacity as a director of the Company or Anchor\nBank\nto\nany\nDirector\nRepresentative\nor\nLawson\nto\nthe\nextent\nsuch\ndisclosure\nwould\nbe\nreasonably\nlikely\nto\nconstitute\na\nbreach\nof\nthe\nDirector's\nfiduciary duties to the Company or Anchor Bank or a waiver of the attorney-client privilege between the Company or Anchor Bank and its counsel\nor the Company's or Anchor Bank's attorney work product privilege. The Director also acknowledges and agrees that she will not disclose, and is\nprohibited by law and regulation from disclosing, to any Director Representative or Lawson any reports of examination or other confidentia\nsupervisory information of any bank regulatory authority, including the Board of Governors of the Federal Reserve System, the Federal Reserve\nBank of San Francisco, the Washington Department of Financial Institutions or the Federal Deposit Insurance Corporation. Any Director\nRepresentative shall only be provided Confidential\nExhibit A-1\nInformation to the extent that such Director Representative is informed of the confidential nature of the Confidential Information and agrees\nor\nis\notherwise obligated to keep such information confidential and to restrict the use of such confidential information in accordance with the terms of this\nNon-Disclosure Agreement. Lawson agrees to keep confidential the Confidential Information and to restrict the use of such Confidential\nInformation in accordance with the terms of this Non-Disclosure Agreement, to be bound by this Non-Disclosure Agreement on the same terms as\nthe Director by countersigning this Non-Disclosure Agreement and not to use any Confidential Information in a manner that may be detrimental to\nthe Company or its subsidiaries, including Anchor Bank, except as permitted by the terms of this Non-Disclosure Agreement. The Director and\nLawson shall be severally responsible for any breach of this Agreement by the Director, Lawson or any of their respective representatives.\n3.\nThe term "Confidential Information" shall not include information that (a) is at the time of disclosure or becomes generally\navailable to the public other than as a result of a disclosure by the Director, a Director Representative or Lawson in violation of the terms of this\nNon-Disclosure Agreement; (b) was, prior to disclosure by the Company or Anchor Bank, already in the possession of the Director, a Director\nRepresentative or Lawson; provided that the source of such information was, to such person's knowledge, not bound by a confidentiality agreement\nwith, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or Anchor Bank, at the time such information was\ndisclosed to such person; (c) becomes available to the Director, a Director Representative or Lawson on a non-confidential basis from a source other\nthan the Company, an affiliate of the Company (including Anchor Bank) or an agent, representative, attorney, advisor, director, officer or employee\nof\nthe\nCompany\nor\nAnchor\nBank\n(collectively,\nthe\n"Company\nRepresentatives")\nthat\nis,\nto\nsuch\nperson's\nknowledge,\nnot\nbound\nby\na\nconfidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or Anchor Bank, and is not, to such person's\nknowledge, under an obligation to the Company or Anchor Bank not to transmit the information to such person; or (d) was independently developed\nby the Director, a Director Representative or Lawson without reference to or use of the Confidential Information.\n4.\nThe Director is aware, and will advise any Director Representative or Lawson who is informed of the matters that are the subject\nof this Non-Disclosure Agreement, that the Confidential Information may constitute material, non-public information and of the restrictions imposed\nby the United States securities laws on the purchase or sale of securities by any person who is aware of material, non-public information and on the\ncommunication of such information to any other person who may purchase or sell such securities on the basis of such information. The Director\nLawson or any Director Representative to whom the Director transmits Confidential Information under this Non-Disclosure Agreement will\ncomply\nwith all applicable federal and state securities laws in connection with the purchase or sale, directly or indirectly, of securities of the Company or any\nother entity of which the Director is provided material non-public information in her capacity as a director of the Company or Anchor Bank\nfor\nas\nlong\nas\nthe\nDirector,\nLawson\nor\nany\nDirector\nRepresentative\nare\nin\npossession\nof\nmaterial\nnon-public\ninformation\nabout\nthe\nCompany\nor\nsuch\nother\nentity. The Company agrees to inform Lawson whenever the trading window applicable to all officers and directors of the Company is\nopen. Further, on the Termination Date (as defined below), the Company shall notify Lawson if the trading window applicable to all officers and\ndirectors of the Company is open. The Company agrees that the Director and Lawson are not restricted by this Non-Disclosure Agreement from\nExhibit A-2\nsecurities of the Company so long as neither the Director nor Lawson is in possession of material, non-public information relating to the Company,\nsubject to their individual compliance with all applicable securities laws. The Director, Lawson and the Company acknowledge that none of the\nprovisions hereto shall in any way limit the Director's or Lawson's activities in the ordinary course of business if such activities will not violate\napplicable securities laws or the obligations set forth in this Non-Disclosure Agreement.\n5. Each of the Director, Lawson and any Director Representative to whom the Director transmits Confidential Information under\nthis Non-Disclosure Agreement acknowledges, or shall be deemed to acknowledge, that none of the Company, any affiliate of the Company or any\nCompany Representative makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation. None of the Company, any affiliate of the Company or any Company Representative shall have any liability to the Director, Lawson or\nany Director Representative hereunder relating to or resulting from the use of the Confidential Information by the Director, Lawson or any Director\nRepresentative or any errors in or omissions from the Confidential Information.\n6.\nNotwithstanding anything herein to the contrary, in the event that the Director, any Director Representative or Lawson is required\nby applicable law, regulation or legal or judicial process (including without limitation, by deposition, interrogatory, request for documents,\nsubpoena, civil investigative demand or similar process) to disclose any Confidential Information, the Director will give the Company prompt\nwritten\nnotice,\nto\nthe\nextent\nnot\nlegally\nprohibited,\nof\nsuch\nrequirement\nso\nthat\nthe\nCompany\nor\nAnchor\nBank\nmay\nseek\nan\nappropriate\nprotective\norder or other remedy, at its sole expense, or waive compliance with the applicable provisions of this Non-Disclosure Agreement. If the Company or\nAnchor Bank seeks a protective order, the Director and Lawson agree to, and shall cause any Director Representative to, provide such cooperation\nto\nthe\nextent permitted by law, as the Company or Anchor Bank shall reasonably request and in no event will they oppose action by the Company or\nAnchor Bank to obtain a protective order or other relief to prevent or otherwise narrow the disclosure of Confidential Information or to obtain\nreliable assurance that confidential treatment will be afforded to the Confidential Information. If in the absence of a protective order, the Director,\nany Director Representative or Lawson, based upon the advice of counsel, is legally required to disclose Confidential Information, such person or\nentity may disclose without liability under this Non-Disclosure Agreement such portion of the Confidential Information that counsel advises that\nthe\nDirector, any Director Representative or Lawson is legally required to disclose.\nFor the avoidance of doubt, there shall be no legal requirement applicable to the Director or Lawson to disclose any Confidentia\nInformation solely by virtue of the fact that, absent such disclosure, such parties would be prohibited from purchasing, selling, or engaging\nin\nderivative or other transactions with respect to securities of the Company.\n7.\nThe parties agree that irreparable damage would occur in the event any of the provisions of this Non-Disclosure Agreement were\nnot performed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly,\nthe parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Non-Disclosure Agreement and to enforce specifically\nthe terms and provisions of this Non-Disclosure Agreement exclusively in the State of Washington with a court of competent jurisdiction located in\nThurston County, Washington (the "Washington Courts"), in\nExhibit A-3\naddition to any other remedies at law or in equity, and each party agrees it will not take any action, directly or indirectly, in opposition to the party\nseeking relief on the grounds that any other remedy or relief is available at law or in equity. Each of the parties hereto agrees to waive any bonding\nrequirement under any applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. Furthermore, each of the\nparties hereto irrevocably (a) consents to submit itself to the personal jurisdiction of the Washington Courts in the event any dispute arises out of this\nNon-Disclosure Agreement, (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from\nthe Washington Courts, (c) agrees that it shall not bring any action relating to this Non-Disclosure Agreement in any court other than the Washington\nCourts, (d) waives the right to trial by jury, and (d) consents to service of process by the United States Postal Service or reputable overnight mail\ndelivery service, in each case, signature requested, to the address set forth in Section 13 of the Standstill Agreement or as otherwise provided\nby\napplicable law. THIS NON-DISCLOSURE AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITH RESPECT TO\nVALIDITY, INTERPRETATION, EFFECT AND ENFORCEMENT, BY THE LAWS OF THE STATE OF WASHINGTON WITHOUT GIVING\nEFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS\nOF ANY OTHER JURISDICTION.\n8.\nThis Non-Disclosure Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by\neither party in exercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further\nexercise of any right hereunder.\n9.\nUnless otherwise agreed in writing between the parties, this Non-Disclosure Agreement shall remain in full force and effect until\none (1) year from the date of this Non-Disclosure Agreement (the "Termination Date"), provided, however, that upon expiration of the Standstill\nPeriod, nothing herein shall preclude Lawson from seeking the election of director candidates or submitting proposals at the Company's 2016 annua\nmeeting of shareholders, including without limitation, making public or private statements relating to the Company if those statements do not\nreference,\ndirectly or indirectly, the Confidential Information or otherwise violate the terms of this Agreement. Notwithstanding the foregoing,\nany\nConfidential Information constituting trade secrets of the Company or Anchor Bank (as defined in 18 U.S.C. 8 1839(3)) shall be kept confidential in\naccordance with the obligations of this Non-Disclosure Agreement for such longer time as such information constitutes a trade secret of the\nCompany or Anchor Bank. The invalidity or unenforceability of any provision of this Non-Disclosure Agreement shall not affect the validity or\nenforceability of any other provision hereof.\n10.\nAll\nConfidential Information shall remain the property of the Company or Anchor Bank and neither the Director, any\nDirector\nRepresentative or Lawson shall by virtue of any disclosure of or use of any Confidential Information acquire any rights with respect thereto, all of\nwhich rights (including all intellectual property rights) shall remain exclusively with the Company or Anchor Bank. Upon the request of\nthe\nCompany at any time, the Director and Lawson will, and will cause any Director Representative to, promptly return to the Company or destroy all\nhard copies of the Confidential Information and use reasonable efforts to permanently erase or delete all electronic copies of the Confidentia\nInformation in the possession or control of the Director, any Director Representative or Lawson. Notwithstanding anything to the\nExhibit A-4\ncontrary contained in this paragraph, the Director, Lawson and any Director Representative shall be permitted to retain such Confidential\nInformation as is necessary to enable them to comply with any applicable document retention requirements under applicable law or regulation and to\nretain any computer records and computer files containing any Confidential Information if required pursuant to their respective current automatic\narchiving and backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as the case may\nbe.\n11. Unless and until any substitute director appointed in accordance with Section 1 of the Standstill Agreement executes a joinder to\nthis Non-Disclosure Agreement and agrees to be bound by the terms hereof applicable to the Director, Lawson shall not be permitted to discuss\nConfidential Information with, or obtain Confidential Information from, such substitute director.\nAcceptance of the above terms shall be indicated by having this Non-Disclosure Agreement countersigned by the Director and Lawson.\nSincerely,\nANCHOR BANCORP\nBy:\n/s/Jerald L. Shaw\nName: Jerald L. Shaw\nTitle: President and Chief Executive Officer\nAcknowledged and agreed as of the\ndate first written above:\n/s/Varonica S. Ragan\nVaronica S. Ragan, as Director\n/s/Joel S. Lawson IV\nJoel S. Lawson IV\n[Signature Page to Non-Disclosure Agreement]\nExhibit A-5	Exhibit A\nNon-Disclosure Agreement\nDecember 8, 2015\nReference is made to the Standstill Agreement, dated December 8, 2015 (the “Standstill Agreement”), by and among Anchor Bancorp\n(the “Company”), Varonica S. Ragan (the “Director”) and Joel S. Lawson IV (“Lawson”). Capitalized terms used but not defined herein shall have\nthe meanings ascribed to them in the Standstill Agreement, and the rules of interpretation set forth in Section 7 of the Standstill Agreement shall\napply to this Non-Disclosure Agreement mutatis mutandis.\n1.\nThe Director may be provided certain information and data in connection with her serving as a director of the Company or\nAnchor Bank that the Company or Anchor Bank wishes to keep confidential, including information (whether furnished in writing or electronic\nformat or orally) regarding the Company’s and Anchor Bank’s governance, board of directors, management, plans, strategies, business, finances or\noperations and information that the Company or Anchor Bank has obtained from third parties and with respect to which the Company or Anchor\nBank is obligated to maintain confidentiality (collectively, “Confidential Information”). For the avoidance of doubt, Confidential Information also\nincludes all information regarding the operations, procedures, strategies, plans and decisions of the Strategy Committee of the Company’s Board of\nDirectors. Except as otherwise permitted in this Non-Disclosure Agreement, the Director will not disclose any Confidential Information in any\nmanner whatsoever or use any Confidential Information other than in connection with serving as a director of the Company or Anchor Bank\nwithout, in each instance, securing the prior written consent of the Company (acting through a resolution of a majority of the Company’s directors).\n2.\nExcept as set forth in this Section 2, this Non-Disclosure Agreement shall not prevent the Director from privately disclosing\nConfidential Information to (i) officers, directors, accountants and counsel for the Company or Anchor Bank, (ii) the Director ’s legal counsel or\nlegal counsel to Lawson (each a “Director Representative” and collectively, the “Director Representatives”) who needs to know such information for\nthe sole purpose of advising the Director on her actions as a director of the Company or Anchor Bank or advising the Director or Lawson with\nrespect to each of their respective investments in the Company, as applicable, or (iii) Lawson. Notwithstanding the foregoing, it is understood and\nagreed that the Director will not disclose any information that the Director learns or obtains in her capacity as a director of the Company or Anchor\nBank to any Director Representative or Lawson to the extent such disclosure would be reasonably likely to constitute a breach of the Director’s\nfiduciary duties to the Company or Anchor Bank or a waiver of the attorney-client privilege between the Company or Anchor Bank and its counsel\nor the Company’s or Anchor Bank’s attorney work product privilege. The Director also acknowledges and agrees that she will not disclose, and is\nprohibited by law and regulation from disclosing, to any Director Representative or Lawson any reports of examination or other confidential\nsupervisory information of any bank regulatory authority, including the Board of Governors of the Federal Reserve System, the Federal Reserve\nBank of San Francisco, the Washington Department of Financial Institutions or the Federal Deposit Insurance Corporation. Any Director\nRepresentative shall only be provided Confidential\nExhibit A-1\nInformation to the extent that such Director Representative is informed of the confidential nature of the Confidential Information and agrees or is\notherwise obligated to keep such information confidential and to restrict the use of such confidential information in accordance with the terms of this\nNon-Disclosure Agreement. Lawson agrees to keep confidential the Confidential Information and to restrict the use of such Confidential\nInformation in accordance with the terms of this Non-Disclosure Agreement, to be bound by this Non-Disclosure Agreement on the same terms as\nthe Director by countersigning this Non-Disclosure Agreement and not to use any Confidential Information in a manner that may be detrimental to\nthe Company or its subsidiaries, including Anchor Bank, except as permitted by the terms of this Non-Disclosure Agreement. The Director and\nLawson shall be severally responsible for any breach of this Agreement by the Director, Lawson or any of their respective representatives.\n3.\nThe term “Confidential Information” shall not include information that (a) is at the time of disclosure or becomes generally\navailable to the public other than as a result of a disclosure by the Director, a Director Representative or Lawson in violation of the terms of this\nNon-Disclosure Agreement; (b) was, prior to disclosure by the Company or Anchor Bank, already in the possession of the Director, a Director\nRepresentative or Lawson; provided that the source of such information was, to such person’s knowledge, not bound by a confidentiality agreement\nwith, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or Anchor Bank, at the time such information was\ndisclosed to such person; (c) becomes available to the Director, a Director Representative or Lawson on a non-confidential basis from a source other\nthan the Company, an affiliate of the Company (including Anchor Bank) or an agent, representative, attorney, advisor, director, officer or employee\nof the Company or Anchor Bank (collectively, the “Company Representatives”) that is, to such person’s knowledge, not bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or Anchor Bank, and is not, to such person’s\nknowledge, under an obligation to the Company or Anchor Bank not to transmit the information to such person; or (d) was independently developed\nby the Director, a Director Representative or Lawson without reference to or use of the Confidential Information.\n4.\nThe Director is aware, and will advise any Director Representative or Lawson who is informed of the matters that are the subject\nof this Non-Disclosure Agreement, that the Confidential Information may constitute material, non-public information and of the restrictions imposed\nby the United States securities laws on the purchase or sale of securities by any person who is aware of material, non-public information and on the\ncommunication of such information to any other person who may purchase or sell such securities on the basis of such information. The Director,\nLawson or any Director Representative to whom the Director transmits Confidential Information under this Non-Disclosure Agreement will comply\nwith all applicable federal and state securities laws in connection with the purchase or sale, directly or indirectly, of securities of the Company or any\nother entity of which the Director is provided material non-public information in her capacity as a director of the Company or Anchor Bank for as\nlong as the Director, Lawson or any Director Representative are in possession of material non-public information about the Company or such other\nentity. The Company agrees to inform Lawson whenever the trading window applicable to all officers and directors of the Company is\nopen. Further, on the Termination Date (as defined below), the Company shall notify Lawson if the trading window applicable to all officers and\ndirectors of the Company is open. The Company agrees that the Director and Lawson are not restricted by this Non-Disclosure Agreement from\nExhibit A-2\nsecurities of the Company so long as neither the Director nor Lawson is in possession of material, non-public information relating to the Company,\nsubject to their individual compliance with all applicable securities laws. The Director, Lawson and the Company acknowledge that none of the\nprovisions hereto shall in any way limit the Director ’s or Lawson’s activities in the ordinary course of business if such activities will not violate\napplicable securities laws or the obligations set forth in this Non-Disclosure Agreement.\n5.\nEach of the Director, Lawson and any Director Representative to whom the Director transmits Confidential Information under\nthis Non-Disclosure Agreement acknowledges, or shall be deemed to acknowledge, that none of the Company, any affiliate of the Company or any\nCompany Representative makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation. None of the Company, any affiliate of the Company or any Company Representative shall have any liability to the Director, Lawson or\nany Director Representative hereunder relating to or resulting from the use of the Confidential Information by the Director, Lawson or any Director\nRepresentative or any errors in or omissions from the Confidential Information.\n6.\nNotwithstanding anything herein to the contrary, in the event that the Director, any Director Representative or Lawson is required\nby applicable law, regulation or legal or judicial process (including without limitation, by deposition, interrogatory, request for documents,\nsubpoena, civil investigative demand or similar process) to disclose any Confidential Information, the Director will give the Company prompt\nwritten notice, to the extent not legally prohibited, of such requirement so that the Company or Anchor Bank may seek an appropriate protective\norder or other remedy, at its sole expense, or waive compliance with the applicable provisions of this Non-Disclosure Agreement. If the Company or\nAnchor Bank seeks a protective order, the Director and Lawson agree to, and shall cause any Director Representative to, provide such cooperation to\nthe extent permitted by law, as the Company or Anchor Bank shall reasonably request and in no event will they oppose action by the Company or\nAnchor Bank to obtain a protective order or other relief to prevent or otherwise narrow the disclosure of Confidential Information or to obtain\nreliable assurance that confidential treatment will be afforded to the Confidential Information. If in the absence of a protective order, the Director,\nany Director Representative or Lawson, based upon the advice of counsel, is legally required to disclose Confidential Information, such person or\nentity may disclose without liability under this Non-Disclosure Agreement such portion of the Confidential Information that counsel advises that the\nDirector, any Director Representative or Lawson is legally required to disclose.\nFor the avoidance of doubt, there shall be no legal requirement applicable to the Director or Lawson to disclose any Confidential\nInformation solely by virtue of the fact that, absent such disclosure, such parties would be prohibited from purchasing, selling, or engaging in\nderivative or other transactions with respect to securities of the Company.\n7.\nThe parties agree that irreparable damage would occur in the event any of the provisions of this Non-Disclosure Agreement were\nnot performed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly,\nthe parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Non-Disclosure Agreement and to enforce specifically\nthe terms and provisions of this Non-Disclosure Agreement exclusively in the State of Washington with a court of competent jurisdiction located in\nThurston County, Washington (the “Washington Courts”), in\nExhibit A-3\naddition to any other remedies at law or in equity, and each party agrees it will not take any action, directly or indirectly, in opposition to the party\nseeking relief on the grounds that any other remedy or relief is available at law or in equity. Each of the parties hereto agrees to waive any bonding\nrequirement under any applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. Furthermore, each of the\nparties hereto irrevocably (a) consents to submit itself to the personal jurisdiction of the Washington Courts in the event any dispute arises out of this\nNon-Disclosure Agreement, (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from\nthe Washington Courts, (c) agrees that it shall not bring any action relating to this Non-Disclosure Agreement in any court other than the Washington\nCourts, (d) waives the right to trial by jury, and (d) consents to service of process by the United States Postal Service or reputable overnight mail\ndelivery service, in each case, signature requested, to the address set forth in Section 13 of the Standstill Agreement or as otherwise provided by\napplicable law. THIS NON-DISCLOSURE AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITH RESPECT TO\nVALIDITY, INTERPRETATION, EFFECT AND ENFORCEMENT, BY THE LAWS OF THE STATE OF WASHINGTON WITHOUT GIVING\nEFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS\nOF ANY OTHER JURISDICTION.\n8.\nThis Non-Disclosure Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by\neither party in exercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further\nexercise of any right hereunder.\n9.\nUnless otherwise agreed in writing between the parties, this Non-Disclosure Agreement shall remain in full force and effect until\none (1) year from the date of this Non-Disclosure Agreement (the “Termination Date”), provided, however, that upon expiration of the Standstill\nPeriod, nothing herein shall preclude Lawson from seeking the election of director candidates or submitting proposals at the Company’s 2016 annual\nmeeting of shareholders, including without limitation, making public or private statements relating to the Company if those statements do not\nreference, directly or indirectly, the Confidential Information or otherwise violate the terms of this Agreement. Notwithstanding the foregoing, any\nConfidential Information constituting trade secrets of the Company or Anchor Bank (as defined in 18 U.S.C. § 1839(3)) shall be kept confidential in\naccordance with the obligations of this Non-Disclosure Agreement for such longer time as such information constitutes a trade secret of the\nCompany or Anchor Bank. The invalidity or unenforceability of any provision of this Non-Disclosure Agreement shall not affect the validity or\nenforceability of any other provision hereof.\n10.\nAll Confidential Information shall remain the property of the Company or Anchor Bank and neither the Director, any Director\nRepresentative or Lawson shall by virtue of any disclosure of or use of any Confidential Information acquire any rights with respect thereto, all of\nwhich rights (including all intellectual property rights) shall remain exclusively with the Company or Anchor Bank. Upon the request of the\nCompany at any time, the Director and Lawson will, and will cause any Director Representative to, promptly return to the Company or destroy all\nhard copies of the Confidential Information and use reasonable efforts to permanently erase or delete all electronic copies of the Confidential\nInformation in the possession or control of the Director, any Director Representative or Lawson. Notwithstanding anything to the\nExhibit A-4\ncontrary contained in this paragraph, the Director, Lawson and any Director Representative shall be permitted to retain such Confidential\nInformation as is necessary to enable them to comply with any applicable document retention requirements under applicable law or regulation and to\nretain any computer records and computer files containing any Confidential Information if required pursuant to their respective current automatic\narchiving and backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as the case may\nbe.\n11.\nUnless and until any substitute director appointed in accordance with Section 1 of the Standstill Agreement executes a joinder to\nthis Non-Disclosure Agreement and agrees to be bound by the terms hereof applicable to the Director, Lawson shall not be permitted to discuss\nConfidential Information with, or obtain Confidential Information from, such substitute director.\nAcceptance of the above terms shall be indicated by having this Non-Disclosure Agreement countersigned by the Director and Lawson.\nSincerely,\nANCHOR BANCORP\nBy:\n/s/Jerald L. Shaw\nName: Jerald L. Shaw\nTitle: President and Chief Executive Officer\nAcknowledged and agreed as of the\ndate first written above:\n/s/Varonica S. Ragan\nVaronica S. Ragan, as Director\n/s/Joel S. Lawson IV\nJoel S. Lawson IV\n[Signature Page to Non-Disclosure Agreement]\nExhibit A-5
+d55dce3f2401b0c4b66618c7d5f292f5.pdf	effective_date jurisdiction party term	EX-10.65 17 dex1065.htm CONFIDENTIALITY, NON-COMPETITION AND NON-SOLICITATION AGREEMENT\nExhibit 10.65\nCONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY, NON-COMPETITION AND NON-SOLICITATION AGREEMENT (“Agreement”) is entered into this 24th day\nof February, 2005 (the “Effective Date”) by and between Mobile Satellite Ventures (“Company”) and Alexander H. Good (“Executive”), who,\nintending to be legally bound, hereby agree as follows:\n1. Employment and Bonus Payment.\n(a) Duties. The Company hereby references the Executive’s employment agreement dated February 29, 2004. During the period of\nemployment, Executive shall perform well and faithfully such duties for, and render such services to, the Company as are from time to time assigned\nto Executive by the Company.\n2. Restrictive Covenants.\n(a) Non-Solicitation of Employees. Executive hereby covenants and agrees that, during Executive’s employment with the Company and for a\nperiod of one (1) year immediately following the termination of such employment, whether voluntary or involuntary, Executive shall not solicit,\ndirectly or indirectly, any of the Company’s employees for employment with any other person or entity. Executive further agrees that he shall engage\nin no action during this aforementioned one (1) year period that is intended to or that has the effect of interfering with, altering, or disrupting the\nCompany’s relationship with its employees. Executive further agrees that he shall not provide any assistance to any other person or entity in the\nsolicitation or recruitment of the Company’s employees.\n(b) Non-Solicitation of Customers. Executive hereby covenants and agrees that, during Executive’s employment with the Company and for a\nperiod of one (1) year immediately following the termination of such employment, whether voluntary or involuntary, Executive shall not, directly or\nindirectly, on his own behalf or on behalf of any other person or entity, solicit or accept competitive business from, submit competitive proposals to,\nor conduct competitive business with, (i) any customer of the Company that was a customer of the Company during the period of Executive’s\nemployment by the Company; or (ii) any customer or prospective customer of the Company that, during the final two years of Executive’s\nemployment by the Company, Executive had solicited for business or to which Executive had provided services, which services shall be deemed to\ninclude but shall not be limited to those typically provided by executive, management, and marketing employees.\n(c) Non-Competition. Executive hereby covenants and agrees that, during Executive’s employment with the Company and for a period of one\n(1) year immediately following the termination of such employment, whether voluntary or involuntary, Executive shall not, directly or indirectly, in\nany geographic area in which the Company markets its products and/or services in any executive, technical, regulatory, managerial, or marketing\ncapacity or position, become employed by or provide services to any person or entity that provides, markets, sells or distributes products or services\ncompetitive with any planned or development-stage products of the Company, which competitor is either Inmarsat or its affiliates or any other\nprovider, or intended provider, of satellite services with an Ancillary Terrestrial Component.\n3. Confidential and Proprietary Information\n(a) Confidential Information Defined. Executive acknowledges that Executive will be provided access to Company confidential and\nproprietary information and trade secrets and will occupy a position of trust and confidence with respect to the Company’s affairs and business\n(“Company Confidential Information”). Company Confidential Information includes, but is not limited to, information and materials related to\npatentable and unpatentable inventions, computer software and hardware, research, business procedures, marketing plans, customer lists and\nbusiness histories, analyses of\ncustomer information, pricing information, financial data, technical data and/or specifications related to the Company’s products and services, and\nany other information that is not generally known to the public or within the industry in which the Company competes.\n(b) Executive’s Obligations. Executive agrees to take all reasonable steps to preserve the confidential and proprietary nature of Company\nConfidential Information and to prevent the inadvertent or accidental disclosure of Company Confidential Information. Executive agrees that during\nExecutive’s employment with the Company and thereafter, Executive will not use, disclose or transfer any Company Confidential Information other\nthan as authorized by the Company. Executive agrees that Executive will not use in any way other than in the Company’s business any Company\nConfidential Information, including information or material received by the Company from others and intended by the Company to be kept in\nconfidence by its recipients. Executive agrees that Executive will not remove any Company Confidential Information from the Company’s premises\nor make copies of such materials except for use in the Company’s business, and that Executive will return to the Company all Company Confidential\nInformation and copies thereof at any time upon the request of Company. Executive agrees not to retain any tangible or intangible copies of any\nCompany Confidential Information after termination of Executive’s employment for any reason. Executive agrees to maintain and make available to\nthe Company, upon its request, complete and current written records, including but not limited to computer files, photographs, and/or drawings, as\nappropriate, of all Company Confidential Information that Executive has created solely or in conjunction with others during the course of\nExecutive’s employment with the Company. Executive agrees that the obligations of this paragraph shall continue after termination of Executive’s\nemployment.\n(c) Prior Confidential Information. During Executive’s employment with the Company, Executive shall not knowingly use or disclose any\nproprietary information or trade secrets of any former employer or other person or entity intended by such person or entity not to be disclosed to the\nCompany. Executive further agrees that he will not bring onto the Company’s premises any unpublished document or proprietary information\nbelonging to any such former employer, person or entity unless consented to in writing by such employer, person or entity. Executive represents that,\nto the best of his knowledge, his performance of all of the terms of this Agreement and his performance of his duties to the Company will not breach\nany agreement or legal obligation between him and any other employer, person or entity.\n4. Enforcement\n(a) Executive acknowledges that Executive’s services and skills are special and unique, that Executive’s work for the Company will permit\nExecutive to have access to and to become familiar with Company Confidential Information and customers, that the Company would not have\nemployed Executive but for the promises and commitments made in this Agreement, and that the promises and commitments made in this\nAgreement are reasonably necessary to protect the Company’s legitimate business interests, including but not limited to the secrecy of Company\nConfidential Information and the goodwill of its customers. Executive further acknowledges and agrees that Company will provide employee\ntraining specific to the products and services it provides and to information and technology related to such products and that the Company’s\ninvestment in such training and knowledge provides a legitimate business interest for the restrictive covenants contained in this Agreement.\n(b) Executive acknowledges that in the event of a violation of any provision contained in this Agreement, the Company’s business interests\nwill be irreparably injured, the full extent of the Company’s damages will be impossible to ascertain, monetary damages will not be an adequate\nremedy for the Company, and the Company will be entitled to enforce this Agreement by an injunction or other equitable relief without the necessity\nof posting bond or security, which Executive expressly waives. Executive further agrees that the restrictions set forth in Paragraphs 2 and 3 of this\nAgreement shall survive the cancellation of this Agreement unless such cancellation expressly states that the restrictions set forth in those paragraphs\nare also cancelled.\n2\n5. Consideration\nExecutive acknowledges that Executive’s employment and/or continued employment constitutes valid consideration for the promises and\ncommitments made in this Agreement. Executive understands that if he fails to execute this Agreement, Company will decline to hire Executive\nand/or will terminate Executive’s employment. As additional consideration, Executive will be granted access to Company’s confidential information\nand trade secrets, which access Executive would not be provided but for his execution of this Agreement. Executive will also be provided training\nand other product-specific information as additional consideration.\n6. General Terms\n(a) Integration, Governing Law, Severability. The terms of this Agreement shall be governed by the laws of the State of Virginia without regard\nto conflict of laws provisions. The Agreement may not be changed in any respect except by a written agreement signed by both Executive and an\nofficer of Company. If any provision of the agreement is held to be invalid, illegal or unenforceable for any reason, the validity, legality and\nenforceability of the remaining provisions will not in any way be affected or impaired thereby.\n(b) Judicial Limitation. If any provision of this Agreement is determined to be invalid or unenforceable by reason of the extent, duration, or\ngeographical scope thereof, then the Court making such determination may reduce the extent, duration, or geographic scope of that provision so that\nit shall be enforceable to the maximum extent permitted by law.\n(c) Non-Assignment. Executive may not assign his or her rights and obligations without the prior written consent of Company. Subject to the\nforegoing, all covenants and agreements made herein shall bind the parties’ respective successors, assigns, and representatives. Executive expressly\nagrees that his obligations under this Agreement are assignable to Company’s successors and assigns.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the 24th day of February, 2005.\nMOBILE SATELLITE VENTURES\nALEXANDER H. GOOD\nBy:\n/s/ Randy Segal\n/s/ Alexander H. Good\nPrint Name: Randy Segal\nPrint Name: Alexander H. Good\nTitle:\nSVP and General Counsel\n3\nCONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nAddendum\nIn addition to the consideration recited in Section 5 of the Confidentiality, Non-Competition and Non-Solicitation Agreement, Executive shall\nalso receive bonus payment eligibility for 2005 (with anticipated payment in February 2006) and a new stock option grant in TerreStar Networks\nInc., as approved for grant in consideration of execution of this Agreement, by the Compensation Committee of the Board of Directors at a meeting\nheld on February 11, 2005 and as ratified and approved by the Board of Directors at a meeting held on February 24, 2005.\nMOBILE SATELLITE VENTURES\nALEXANDER H. GOOD\nBy:\n/s/ Randy Segal\n/s/ Alexander H. Good\nPrint Name: Randy Segal\nPrint Name: Alexander H. Good\nTitle:\nSVP and General Counsel\n4	EX-10.65 17 dex1065.htm CONFIDENTIALITY, NON-COMPETITION AND NON-SOLICITATION AGREEMENT\nExhibit 10.65\nCONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY, NON-COMPETITION AND NON-SOLICITATION AGREEMENT (“Agreement ”) is entered into this 24" day\nof February, 2005 (the “Effective Date”) by and between Mobile Satellite Ventures (“Company”) and Alexander H. Good (“Executive”), who,\nintending to be legally bound, hereby agree as follows:\n1. Employment and Bonus Payment.\n(a) Duties. The Company hereby references the Executive’s employment agreement dated February 29, 2004. During the period of\nemployment, Executive shall perform well and faithfully such duties for, and render such services to, the Company as are from time to time assigned\nto Executive by the Company.\n2. Restrictive Covenants.\n(a) Non-Solicitation of Employees. Executive hereby covenants and agrees that, during Executive’s employment with the Company and for a\nperiod of one (1) year immediately following the termination of such employment, whether voluntary or involuntary, Executive shall not solicit,\ndirectly or indirectly, any of the Company’s employees for employment with any other person or entity. Executive further agrees that he shall engage\nin no action during this aforementioned one (1) year period that is intended to or that has the effect of interfering with, altering, or disrupting the\nCompany’s relationship with its employees. Executive further agrees that he shall not provide any assistance to any other person or entity in the\nsolicitation or recruitment of the Company’s employees.\n(b) Non-Solicitation of Customers. Executive hereby covenants and agrees that, during Executive’s employment with the Company and for a\nperiod of one (1) year immediately following the termination of such employment, whether voluntary or involuntary, Executive shall not, directly or\nindirectly, on his own behalf or on behalf of any other person or entity, solicit or accept competitive business from, submit competitive proposals to,\nor conduct competitive business with, (i) any customer of the Company that was a customer of the Company during the period of Executive’s\nemployment by the Company; or (ii) any customer or prospective customer of the Company that, during the final two years of Executive’s\nemployment by the Company, Executive had solicited for business or to which Executive had provided services, which services shall be deemed to\ninclude but shall not be limited to those typically provided by executive, management, and marketing employees.\n \n(c) Non-Competition. Executive hereby covenants and agrees that, during Executive’s employment with the Company and for a period of one\n(1) year immediately following the termination of such employment, whether voluntary or involuntary, Executive shall not, directly or indirectly, in\nany geographic area in which the Company markets its products and/or services in any executive, technical, regulatory, managerial, or marketing\ncapacity or position, become employed by or provide services to any person or entity that provides, markets, sells or distributes products or services\ncompetitive with any planned or development-stage products of the Company, which competitor is either Inmarsat or its affiliates or any other\nprovider, or intended provider, of satellite services with an Ancillary Terrestrial Component.\n3.  Confidential and Proprietary Information\n \n(a) Confidential Information Defined. Executive acknowledges that Executive will be provided access to Company confidential and\nproprietary information and trade secrets and will occupy a position of trust and confidence with respect to the Company’s affairs and business\n(“Company Confidential Information”). Company Confidential Information includes, but is not limited to, information and materials related to\npatentable and unpatentable inventions, computer software and hardware, research, business procedures, marketing plans, customer lists and\nbusiness histories, analyses of\ncustomer information, pricing information, financial data, technical data and/or specifications related to the Company’s products and services, and\nany other information that is not generally known to the public or within the industry in which the Company competes.\n(b) Executive’s Obligations. Executive agrees to take all reasonable steps to preserve the confidential and proprietary nature of Company\nConfidential Information and to prevent the inadvertent or accidental disclosure of Company Confidential Information. Executive agrees that during\nExecutive’s employment with the Company and thereafter, Executive will not use, disclose or transfer any Company Confidential Information other\nthan as authorized by the Company. Executive agrees that Executive will not use in any way other than in the Company’s business any Company\nConfidential Information, including information or material received by the Company from others and intended by the Company to be kept in\nconfidence by its recipients. Executive agrees that Executive will not remove any Company Confidential Information from the Company’s premises\nor make copies of such materials except for use in the Company’s business, and that Executive will return to the Company all Company Confidential\nInformation and copies thereof at any time upon the request of Company. Executive agrees not to retain any tangible or intangible copies of any\nCompany Confidential Information after termination of Executive’s employment for any reason. Executive agrees to maintain and make available to\nthe Company, upon its request, complete and current written records, including but not limited to computer files, photographs, and/or drawings, as\nappropriate, of all Company Confidential Information that Executive has created solely or in conjunction with others during the course of\nExecutive’s employment with the Company. Executive agrees that the obligations of this paragraph shall continue after termination of Executive’s\nemployment.\n(c) Prior Confidential Information. During Executive’s employment with the Company, Executive shall not knowingly use or disclose any\nproprietary information or trade secrets of any former employer or other person or entity intended by such person or entity not to be disclosed to the\nCompany. Executive further agrees that he will not bring onto the Company’s premises any unpublished document or proprietary information\nbelonging to any such former employer, person or entity unless consented to in writing by such employer, person or entity. Executive represents that,\nto the best of his knowledge, his performance of all of the terms of this Agreement and his performance of his duties to the Company will not breach\nany agreement or legal obligation between him and any other employer, person or entity.\n4. Enforcement\n(a) Executive acknowledges that Executive’s services and skills are special and unique, that Executive’s work for the Company will permit\nExecutive to have access to and to become familiar with Company Confidential Information and customers, that the Company would not have\nemployed Executive but for the promises and commitments made in this Agreement, and that the promises and commitments made in this\nAgreement are reasonably necessary to protect the Company’s legitimate business interests, including but not limited to the secrecy of Company\nConfidential Information and the goodwill of its customers. Executive further acknowledges and agrees that Company will provide employee\ntraining specific to the products and services it provides and to information and technology related to such products and that the Company’s\ninvestment in such training and knowledge provides a legitimate business interest for the restrictive covenants contained in this Agreement.\n(b) Executive acknowledges that in the event of a violation of any provision contained in this Agreement, the Company’s business interests\nwill be irreparably injured, the full extent of the Company’s damages will be impossible to ascertain, monetary damages will not be an adequate\nremedy for the Company, and the Company will be entitled to enforce this Agreement by an injunction or other equitable relief without the necessity\nof posting bond or security, which Executive expressly waives. Executive further agrees that the restrictions set forth in Paragraphs 2 and 3 of this\nAgreement shall survive the cancellation of this Agreement unless such cancellation expressly states that the restrictions set forth in those paragraphs\nare also cancelled.\n5. Consideration\nExecutive acknowledges that Executive’s employment and/or continued employment constitutes valid consideration for the promises and\ncommitments made in this Agreement. Executive understands that if he fails to execute this Agreement, Company will decline to hire Executive\nand/or will terminate Executive’s employment. As additional consideration, Executive will be granted access to Company’s confidential information\nand trade secrets, which access Executive would not be provided but for his execution of this Agreement. Executive will also be provided training\nand other product-specific information as additional consideration.\n6. General Terms\n(a) Integration, Governing Law, Severability. The terms of this Agreement shall be governed by the laws of the State of Virginia without regard\nto conflict of laws provisions. The Agreement may not be changed in any respect except by a written agreement signed by both Executive and an\nofficer of Company. If any provision of the agreement is held to be invalid, illegal or unenforceable for any reason, the validity, legality and\nenforceability of the remaining provisions will not in any way be affected or impaired thereby.\n \n(b) Judicial Limitation. If any provision of this Agreement is determined to be invalid or unenforceable by reason of the extent, duration, or\ngeographical scope thereof, then the Court making such determination may reduce the extent, duration, or geographic scope of that provision so that\nit shall be enforceable to the maximum extent permitted by law.\n(c) Non-Assignment. Executive may not assign his or her rights and obligations without the prior written consent of Company. Subject to the\nforegoing, all covenants and agreements made herein shall bind the parties’ respective successors, assigns, and representatives. Executive expressly\nagrees that his obligations under this Agreement are assignable to Company’s successors and assigns.\nIN WITNESS WHEREQF, the parties hereto have executed this Agreement as of the 24" day of February, 2005.\nMOBILE SATELLITE VENTURES ALEXANDER H. GOOD\nBy: /s/  Randy Segal /s/  Alexander H. Good\nPrint Name: Randy Segal Print Name: Alexander H. Good\nTitle: SVP and General Counsel\nCONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nAddendum\nIn addition to the consideration recited in Section 5 of the Confidentiality, Non-Competition and Non-Solicitation Agreement, Executive shall\nalso receive bonus payment eligibility for 2005 (with anticipated payment in February 2006) and a new stock option grant in TerreStar Networks\nInc., as approved for grant in consideration of execution of this Agreement, by the Compensation Committee of the Board of Directors at a meeting\nheld on February 11, 2005 and as ratified and approved by the Board of Directors at a meeting held on February 24, 2005.\nMOBILE SATELLITE VENTURES ALEXANDER H. GOOD\nBy: /s/  Randy Segal /s/  Alexander H. Good\nPrint Name: Randy Segal Print Name: Alexander H. Good\nTitle: SVP and General Counsel	EX-10.65 17 dex 1065.htm CONFIDENTIALITY, NON-COMPETITION AND NON-SOLICITATION AGREEMENT\nExhibit 10.65\nCONFIDENTIALITY,. NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY, NON-COMPETITION AND NON-SOLICITATION AGREEMENT ("Agreement" is entered into this 24th day\nof February, 2005 (the "Effective Date") by and between Mobile Satellite Ventures ("Company") and Alexander H. Good ("Executive"), who,\nintending to be legally bound, hereby agree as follows:\n1.\nEmployment and Bonus Payment.\n(a) Duties. The Company hereby references the Executive's employment agreement dated February 29, 2004. During the period of\nemployment, Executive shall perform well and faithfully such duties for, and render such services to, the Company as are from time to time assigned\nto Executive by the Company.\n2.\nRestrictive Covenants.\n(a) Non-Solicitation of Employees. Executive hereby covenants and agrees that, during Executive's employment with the Company and for a\nperiod of one (1) year immediately following the termination of such employment, whether voluntary or involuntary, Executive shall not solicit,\ndirectly or indirectly, any of the Company's employees for employment with any other person or entity. Executive further agrees that he shall engage\nin no action during this aforementioned one (1) year period that is intended to or that has the effect of interfering with, altering, or disrupting the\nCompany's relationship with its employees. Executive further agrees that he shall not provide any assistance to any other person or entity in the\nsolicitation or recruitment of the Company's employees.\n(b) Non-Solicitation of Customers. Executive hereby covenants and agrees that, during Executive's employment with the Company and for\na\nperiod of one (1) year immediately following the termination of such employment, whether voluntary or involuntary, Executive shall not, directly or\nindirectly, on his own behalf or on behalf of any other person or entity, solicit or accept competitive business from, submit competitive proposals to,\nor conduct competitive business with, (i) any customer of the Company that was a customer of the Company during the period of Executive's\nemployment by the Company; or (ii) any customer or prospective customer of the Company that, during the final two years of Executive's\nemployment by the Company, Executive had solicited for business or to which Executive had provided services, which services shall be deemed to\ninclude but shall not be limited to those typically provided by executive, management, and marketing employees.\n(c) Non-Competition. Executive hereby covenants and agrees that, during Executive's employment with the Company and for a period of\none\n(1) year immediately following the termination of such employment, whether voluntary or involuntary, Executive shall not, directly or indirectly, in\nany geographic area in which the Company markets its products and/or services in any executive, technical, regulatory, managerial, or marketing\ncapacity or position, become employed by or provide services to any person or entity that provides, markets, sells or distributes products or services\ncompetitive with any planned or development-stage products of the Company, which competitor is either Inmarsat or its affiliates or any other\nprovider, or intended provider of satellite services with an Ancillary Terrestrial Component.\n3.\nConfidential and Proprietary. Information\n(a) Confidential Information Defined. Executive acknowledges that Executive will be provided access to Company confidential and\nproprietary information and trade secrets and will occupy a position of trust and confidence with respect to the Company's affairs and business\n("Company Confidential Information"). Company Confidential Information includes, but is not limited to, information and materials related to\npatentable and unpatentable inventions, computer software and hardware, research, business procedures, marketing plans, customer lists and\nbusiness histories, analyses of\ncustomer information, pricing information, financial data, technical data and/or specifications related to the Company's products and services, and\nany other information that is not generally known to the public or within the industry in which the Company competes.\n(b) Executive's Obligations. Executive agrees to take all reasonable steps to preserve the confidential and proprietary nature of Company\nConfidential Information and to prevent the inadvertent or accidental disclosure of Company Confidential Information. Executive agrees that during\nExecutive's employment with the Company and thereafter, Executive will not use, disclose or transfer any Company Confidential Information\nother\nthan as authorized by the Company. Executive agrees that Executive will not use in any way other than in the Company's business any Company\nConfidential Information, including information or material received by the Company from others and intended by the Company to be kept in\nconfidence by its recipients. Executive agrees that Executive will not remove any Company Confidential Information from the Company's premises\nor make copies of such materials except for use in the Company's business, and that Executive will return to the Company all Company Confidential\nInformation and copies thereof at any time upon the request of Company. Executive agrees not to retain any tangible or intangible copies of any\nCompany Confidential Information after termination of Executive's employment for any reason. Executive agrees to maintain and make available\nto\nthe Company, upon its request, complete and current written records, including but not limited to computer files, photographs, and/or drawings, as\nappropriate, of all Company Confidential Information that Executive has created solely or in conjunction with others during the course of\nExecutive's employment with the Company. Executive agrees that the obligations of this paragraph shall continue after termination of Executive's\nemployment.\n(c) Prior Confidential Information. During Executive's employment with the Company, Executive shall not knowingly use or disclose any\nproprietary information or trade secrets of any former employer or other person or entity intended by such person or entity not to be disclosed to the\nCompany. Executive further agrees that he will not bring onto the Company's premises any unpublished document or proprietary information\nbelonging to any such former employer, person or entity unless consented to in writing by such employer, person or entity. Executive represents that,\nto the best of his knowledge, his performance of all of the terms of this Agreement and his performance of his duties to the Company will not breach\nany agreement or legal obligation between him and any other employer, person or entity.\n4. Enforcement\n(a) Executive acknowledges that Executive's services and skills are special and unique, that Executive's work for the Company will permit\nExecutive to have access to and to become familiar with Company Confidential Information and customers, that the Company would not have\nemployed Executive but for the promises and commitments made in this Agreement, and that the promises and commitments made in this\nAgreement are reasonably necessary to protect the Company's legitimate business interests, including but not limited to the secrecy of Company\nConfidential Information and the goodwill of its customers. Executive further acknowledges and agrees that Company will provide employee\ntraining specific to the products and services it provides and to information and technology related to such products and that the Company's\ninvestment in such training and knowledge provides a legitimate business interest for the restrictive covenants contained in this Agreement.\n(b) Executive acknowledges that in the event of a violation of any provision contained in this Agreement, the Company's business interests\nwill be irreparably injured, the full extent of the Company's damages will be impossible to ascertain, monetary damages will not be an adequate\nremedy for the Company, and the Company will be entitled to enforce this Agreement by an injunction or other equitable relief without the necessity\nof posting bond or security, which Executive expressly waives. Executive further agrees that the restrictions set forth in Paragraphs 2 and 3 of this\nAgreement shall survive the cancellation of this Agreement unless such cancellation expressly states that the restrictions set forth in those paragraphs\nare also cancelled.\n2\n5. Consideration\nExecutive acknowledges that Executive's employment and/or continued employment constitutes valid consideration for the promises and\ncommitments made in this Agreement. Executive understands that if he fails to execute this Agreement, Company will decline to hire Executive\nand/or will terminate Executive's employment. As additional consideration, Executive will be granted access to Company's confidential information\nand trade secrets, which access Executive would not be provided but for his execution of this Agreement. Executive will also be provided training\nand other product-specific information as additional consideration.\n6.\nGeneral Terms\n(a) Integration, Governing Law, Severability. The terms of this Agreement shall be governed by the laws of the State of Virginia without regard\nto conflict of laws provisions. The Agreement may not be changed in any respect except by a written agreement signed by both Executive and an\nofficer of Company. If any provision of the agreement is held to be invalid, illegal or unenforceable for any reason, the validity, legality and\nenforceability of the remaining provisions will not in any way be affected or impaired thereby.\n(b) Judicial Limitation. If any provision of this Agreement is determined to be invalid or unenforceable by reason of the extent, duration, or\ngeographical scope thereof, then the Court making such determination may reduce the extent, duration, or geographic scope of that provision SO that\nit shall be enforceable to the maximum extent permitted by law.\n(c) Non-Assignment. Executive may not assign his or her rights and obligations without the prior written consent of Company. Subject to the\nforegoing, all covenants and agreements made herein shall bind the parties' respective successors, assigns, and representatives. Executive expressly\nagrees that his obligations under this Agreement are assignable to Company's successors and assigns.\nIN\nWITNESS WHEREOF, the parties hereto have executed this Agreement as of the 24th day of February, 2005.\nMOBILE SATELLITE VENTURES\nALEXANDER H. GOOD\nBy:\n/s/ Randy Segal\n/s/ Alexander H. Good\nPrint Name: Randy Segal\nPrint Name: Alexander H. Good\nTitle:\nSVP and General Counsel\n3\nCONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nAddendum\nIn addition to the consideration recited in Section 5 of the Confidentiality, Non-Competition and Non-Solicitation Agreement, Executive shall\nalso receive bonus payment eligibility for 2005 (with anticipated payment in February 2006) and a new stock option grant in TerreStar Networks\nInc., as approved for grant in consideration of execution of this Agreement, by the Compensation Committee of the Board of Directors at a meeting\nheld on February 11, 2005 and as ratified and approved by the Board of Directors at a meeting held on February 24, 2005.\nMOBILE SATELLITE VENTURES\nALEXANDER H. GOOD\nBy:\n/s/ Randy Segal\n/s/ Alexander H. Good\nPrint Name: Randy Segal\nPrint Name: Alexander H. Good\nTitle:\nSVP and General Counsel\n4	EX-10.65 17 dex1065.htm CONFIDENTIALITY, NON-COMPETITION AND NON-SOLICITATION AGREEMENT\nExhibit 10.65\nCONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY, NON-COMPETITION AND NON-SOLICITATION AGREEMENT (“Agreement”) is entered into this 24th day\nof February, 2005 (the “Effective Date”) by and between Mobile Satellite Ventures (“Company”) and Alexander H. Good (“Executive”), who,\nintending to be legally bound, hereby agree as follows:\n1. Employment and Bonus Payment.\n(a) Duties. The Company hereby references the Executive’s employment agreement dated February 29, 2004. During the period of\nemployment, Executive shall perform well and faithfully such duties for, and render such services to, the Company as are from time to time assigned\nto Executive by the Company.\n2. Restrictive Covenants.\n(a) Non-Solicitation of Employees. Executive hereby covenants and agrees that, during Executive’s employment with the Company and for a\nperiod of one (1) year immediately following the termination of such employment, whether voluntary or involuntary, Executive shall not solicit,\ndirectly or indirectly, any of the Company’s employees for employment with any other person or entity. Executive further agrees that he shall engage\nin no action during this aforementioned one (1) year period that is intended to or that has the effect of interfering with, altering, or disrupting the\nCompany’s relationship with its employees. Executive further agrees that he shall not provide any assistance to any other person or entity in the\nsolicitation or recruitment of the Company’s employees.\n(b) Non-Solicitation of Customers. Executive hereby covenants and agrees that, during Executive’s employment with the Company and for a\nperiod of one (1) year immediately following the termination of such employment, whether voluntary or involuntary, Executive shall not, directly or\nindirectly, on his own behalf or on behalf of any other person or entity, solicit or accept competitive business from, submit competitive proposals to,\nor conduct competitive business with, (i) any customer of the Company that was a customer of the Company during the period of Executive’s\nemployment by the Company; or (ii) any customer or prospective customer of the Company that, during the final two years of Executive’s\nemployment by the Company, Executive had solicited for business or to which Executive had provided services, which services shall be deemed to\ninclude but shall not be limited to those typically provided by executive, management, and marketing employees.\n(c) Non-Competition. Executive hereby covenants and agrees that, during Executive’s employment with the Company and for a period of one\n(1) year immediately following the termination of such employment, whether voluntary or involuntary, Executive shall not, directly or indirectly, in\nany geographic area in which the Company markets its products and/or services in any executive, technical, regulatory, managerial, or marketing\ncapacity or position, become employed by or provide services to any person or entity that provides, markets, sells or distributes products or services\ncompetitive with any planned or development-stage products of the Company, which competitor is either Inmarsat or its affiliates or any other\nprovider, or intended provider, of satellite services with an Ancillary Terrestrial Component.\n3. Confidential and Proprietary Information\n(a) Confidential Information Defined. Executive acknowledges that Executive will be provided access to Company confidential and\nproprietary information and trade secrets and will occupy a position of trust and confidence with respect to the Company’s affairs and business\n(“Company Confidential Information”). Company Confidential Information includes, but is not limited to, information and materials related to\npatentable and unpatentable inventions, computer software and hardware, research, business procedures, marketing plans, customer lists and\nbusiness histories, analyses of\ncustomer information, pricing information, financial data, technical data and/or specifications related to the Company’s products and services, and\nany other information that is not generally known to the public or within the industry in which the Company competes.\n(b) Executive’s Obligations. Executive agrees to take all reasonable steps to preserve the confidential and proprietary nature of Company\nConfidential Information and to prevent the inadvertent or accidental disclosure of Company Confidential Information. Executive agrees that during\nExecutive’s employment with the Company and thereafter, Executive will not use, disclose or transfer any Company Confidential Information other\nthan as authorized by the Company. Executive agrees that Executive will not use in any way other than in the Company’s business any Company\nConfidential Information, including information or material received by the Company from others and intended by the Company to be kept in\nconfidence by its recipients. Executive agrees that Executive will not remove any Company Confidential Information from the Company’s premises\nor make copies of such materials except for use in the Company’s business, and that Executive will return to the Company all Company Confidential\nInformation and copies thereof at any time upon the request of Company. Executive agrees not to retain any tangible or intangible copies of any\nCompany Confidential Information after termination of Executive’s employment for any reason. Executive agrees to maintain and make available to\nthe Company, upon its request, complete and current written records, including but not limited to computer files, photographs, and/or drawings, as\nappropriate, of all Company Confidential Information that Executive has created solely or in conjunction with others during the course of\nExecutive’s employment with the Company. Executive agrees that the obligations of this paragraph shall continue after termination of Executive’s\nemployment.\n(c) Prior Confidential Information. During Executive’s employment with the Company, Executive shall not knowingly use or disclose any\nproprietary information or trade secrets of any former employer or other person or entity intended by such person or entity not to be disclosed to the\nCompany. Executive further agrees that he will not bring onto the Company’s premises any unpublished document or proprietary information\nbelonging to any such former employer, person or entity unless consented to in writing by such employer, person or entity. Executive represents that,\nto the best of his knowledge, his performance of all of the terms of this Agreement and his performance of his duties to the Company will not breach\nany agreement or legal obligation between him and any other employer, person or entity.\n4. Enforcement\n(a) Executive acknowledges that Executive’s services and skills are special and unique, that Executive’s work for the Company will permit\nExecutive to have access to and to become familiar with Company Confidential Information and customers, that the Company would not have\nemployed Executive but for the promises and commitments made in this Agreement, and that the promises and commitments made in this\nAgreement are reasonably necessary to protect the Company’s legitimate business interests, including but not limited to the secrecy of Company\nConfidential Information and the goodwill of its customers. Executive further acknowledges and agrees that Company will provide employee\ntraining specific to the products and services it provides and to information and technology related to such products and that the Company’s\ninvestment in such training and knowledge provides a legitimate business interest for the restrictive covenants contained in this Agreement.\n(b) Executive acknowledges that in the event of a violation of any provision contained in this Agreement, the Company’s business interests\nwill be irreparably injured, the full extent of the Company’s damages will be impossible to ascertain, monetary damages will not be an adequate\nremedy for the Company, and the Company will be entitled to enforce this Agreement by an injunction or other equitable relief without the necessity\nof posting bond or security, which Executive expressly waives. Executive further agrees that the restrictions set forth in Paragraphs 2 and 3 of this\nAgreement shall survive the cancellation of this Agreement unless such cancellation expressly states that the restrictions set forth in those paragraphs\nare also cancelled.\n2\n5. Consideration\nExecutive acknowledges that Executive’s employment and/or continued employment constitutes valid consideration for the promises and\ncommitments made in this Agreement. Executive understands that if he fails to execute this Agreement, Company will decline to hire Executive\nand/or will terminate Executive’s employment. As additional consideration, Executive will be granted access to Company’s confidential information\nand trade secrets, which access Executive would not be provided but for his execution of this Agreement. Executive will also be provided training\nand other product-specific information as additional consideration.\n6. General Terms\n(a) Integration, Governing Law, Severability. The terms of this Agreement shall be governed by the laws of the State of Virginia without regard\nto conflict of laws provisions. The Agreement may not be changed in any respect except by a written agreement signed by both Executive and an\nofficer of Company. If any provision of the agreement is held to be invalid, illegal or unenforceable for any reason, the validity, legality and\nenforceability of the remaining provisions will not in any way be affected or impaired thereby.\n(b) Judicial Limitation. If any provision of this Agreement is determined to be invalid or unenforceable by reason of the extent, duration, or\ngeographical scope thereof, then the Court making such determination may reduce the extent, duration, or geographic scope of that provision so that\nit shall be enforceable to the maximum extent permitted by law.\n(c) Non-Assignment. Executive may not assign his or her rights and obligations without the prior written consent of Company. Subject to the\nforegoing, all covenants and agreements made herein shall bind the parties’ respective successors, assigns, and representatives. Executive expressly\nagrees that his obligations under this Agreement are assignable to Company’s successors and assigns.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the 24th day of February, 2005.\nMOBILE SATELLITE VENTURES\nALEXANDER H. GOOD\nBy:\n/s/ Randy Segal\n/s/ Alexander H. Good\nPrint Name: Randy Segal\nPrint Name: Alexander H. Good\nTitle:\nSVP and General Counsel\n3\nCONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nAddendum\nIn addition to the consideration recited in Section 5 of the Confidentiality, Non-Competition and Non-Solicitation Agreement, Executive shall\nalso receive bonus payment eligibility for 2005 (with anticipated payment in February 2006) and a new stock option grant in TerreStar Networks\nInc., as approved for grant in consideration of execution of this Agreement, by the Compensation Committee of the Board of Directors at a meeting\nheld on February 11, 2005 and as ratified and approved by the Board of Directors at a meeting held on February 24, 2005.\nMOBILE SATELLITE VENTURES\nALEXANDER H. GOOD\nBy:\n/s/ Randy Segal\n/s/ Alexander H. Good\nPrint Name: Randy Segal\nPrint Name: Alexander H. Good\nTitle:\nSVP and General Counsel\n4
+d6f15390ac99f5de8ef919d8df8e5412.pdf	effective_date jurisdiction party term	EX-99.(D)(6) 16 dex99d6.htm CONFIDENTIALITY AGREEMENT, DATED AS OF DECEMBER 19, 2006,\nBETWEEN PITNEY BOWES\nExhibit (d)(6)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is dated and effective as of December 19, 2006 (the “Effective Date”), between MapInfo\nCorporation, a Delaware corporation with its principal office at One Global View, Troy, NY 12866 (“MapInfo”), and Pitney Bowes Inc., a Delaware\ncorporation with its principal office at 1 Elmcroft Road, Stamford, Connecticut 06926 (“PBI”).\nBackground\nA. PBI has requested MapInfo to provide certain information, which is either confidential or proprietary in nature, in connection with PBI’s\nconsideration of a possible negotiated transaction between MapInfo and PBI (the “Transaction”); and in connection with such Transaction, PBI may\nprovide MapInfo with certain information which is either confidential or proprietary in nature.\nB. MapInfo and PBI each desires to protect the confidentiality of the information that it provides and to have the other party take or abstain\nfrom taking certain actions in accordance with the provisions of this Agreement.\nNow, therefore, in consideration of the mutual covenants and promises contained in this Agreement and other good and valuable consideration,\nthe receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\n1. Definitions.\n(a) Each of MapInfo and PBI is a “Disclosing Party” as to Evaluation Material concerning it that is furnished to the other party and is a\n“Receiving Party” as to Evaluation Material of the other party that is furnished to it.\n(b) “Evaluation Material” means any information concerning Disclosing Party (whether prepared by Disclosing Party, its Representatives\n(as defined herein) or otherwise, and regardless of the form of communication) that is furnished to Receiving Party or any of its Representatives by\nor on behalf of Disclosing Party on or after the date hereof, and any portions of notes, analyses, compilations, studies, interpretations, memoranda,\nreports or other documents (regardless of the form thereof) prepared by Receiving Party or its Representatives which contain, reflect or are based\nupon, in whole or in part, any information that is furnished to Receiving Party or its Representatives pursuant to this Agreement; provided, however,\nthat “Evaluation Material” does not include information concerning Disclosing Party which:\n(i) is or becomes generally available to the public other than as a result of a breach of this Agreement by Receiving Party or its\nRepresentatives;\n(ii) was within Receiving Party’s or any of its Representative’s possession prior to it being furnished to Receiving Party or its\nRepresentatives by or on behalf of\n1\nDisclosing Party pursuant to this Agreement, provided that such information is not subject to another confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, Disclosing Party with respect to such information;\n(iii) becomes available to Receiving Party or any of its Representatives from a source other than Disclosing Party or any of its\nRepresentatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, Disclosing Party with respect to such information; or\n(iv) is independently developed by Receiving Party or others on its behalf without reference to or reliance upon any confidential\nor proprietary information furnished to Receiving Party or any of its Representatives by or on behalf of Disclosing Party.\n(c) “Representatives” means, with respect to a party, its parents and subsidiaries, and its and their respective directors, officers, affiliates,\nemployees, partners, agents or advisors (including without limitation attorneys, accountants, consultants and investment bankers).\n(d) The term “person” shall be broadly interpreted to include the media and any corporation, company, partnership, joint venture, group,\nlimited liability company, other entity or individual, and the term “affiliate” has the meaning set forth in Rule 12b-2 under the Securities Exchange\nAct of 1934, as amended (such Act, as amended, being referred to herein as the “Exchange Act”).\n2. Use and Disclosure of Evaluation Material.\n(a) Except as otherwise provided in this Agreement, Receiving Party hereby agrees that it and its Representatives shall:\n(i) use the other party’s Evaluation Material solely for the purpose of evaluating, negotiating and implementing a possible\nTransaction;\n(ii) keep the other party’s Evaluation Material confidential in accordance with the provisions of this Agreement; and\n(iii) not disclose any of the other party’s Evaluation Material except in accordance with the provisions of this Agreement;\nprovided, however, that Receiving Party may disclose any Evaluation Material to Receiving Party’s Representatives who need to know such\ninformation for the sole purpose of evaluating, negotiating and implementing a possible Transaction, provided that Receiving Party’s Representatives\nare informed of the confidential nature of such Evaluation Material and agree to use such information solely for the purpose of evaluating,\nnegotiating and implementing a possible Transaction and likewise agree to maintain the confidentiality of such Evaluation Material.\n2\n(b) Except as otherwise provided in this Agreement, neither MapInfo nor PBI nor any of their respective Representatives shall disclose\nto any other person (i) the existence of this Agreement, (ii) the fact that Evaluation Material has been made available by it to the other party or by the\nother party to it, (iii) that discussions are taking place concerning a possible Transaction between the parties, (iv) any of the terms, conditions or\nother facts with respect thereto, or (v) the status of such discussions (collectively, the “Transaction Information”). Without limiting the foregoing,\nReceiving Party agrees that, for a period of eighteen (18) months from the Effective Date, neither it nor its Representatives will enter into any\ndiscussions or any agreement, understanding or arrangement with any person regarding participation by such person or others in a negotiated\ntransaction with Disclosing Party, except that Receiving Party may, with Disclosing Party’s prior written consent, have discussions with other\npersons relating to obtaining debt (but not equity) financing for a negotiated transaction with Disclosing Party from commercial banks or other\ninstitutional sources if the persons with whom Receiving Party has such discussions agree to be bound by the terms of this Agreement.\n(c) Receiving Party shall be liable to Disclosing Party for any use or disclosure by any of Receiving Party’s Representatives of (i) the\nDisclosing Party’s Evaluation Material or (ii) Transaction Information which, if done by Receiving Party itself, would be a breach of this Agreement.\nReceiving Party agrees, at its sole expense, to take reasonable measures to restrain its Representatives from making or allowing to be made\nprohibited or unauthorized uses or disclosures of the Disclosing Party’s Evaluation Material and Transaction Information.\n(d) To the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree\nthat they have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of\nsuch material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to such protection under these privileges or\ndoctrines, under this Agreement and under the joint defense doctrine.\n3. Legally Required Disclosure.\nIf Receiving Party or any of its Representatives is requested or required (by oral questions, interrogatories, requests for information or\ndocuments in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Disclosing Party’s Evaluation\nMaterial or Transaction Information, Receiving Party shall, except as prohibited by law, provide Disclosing Party with prompt written notice of any\nsuch request or requirement so that Disclosing Party may seek, at Disclosing Party’s expense, a protective order or other remedy and/or waive\ncompliance with the provisions of this Agreement. If Disclosing Party seeks a protective order or other remedy, Receiving Party shall provide such\ncooperation, at Disclosing Party’s expense, as Disclosing Party shall reasonably request. If, in the absence of a protective\n3\norder or other remedy or the receipt by Receiving Party of a waiver from Disclosing Party, Receiving Party or any of its Representatives is\nnonetheless, in the opinion of its legal counsel, legally compelled to disclose Evaluation Material or Transaction Information to any tribunal or other\nentity or else stand liable for contempt or suffer other censure or penalty, Receiving Party or such Representatives may, without liability hereunder,\ndisclose to such tribunal or other entity only that portion of the Disclosing Party’s Evaluation Material or Transaction Information which such\ncounsel advises Receiving Party or such Representatives in writing is legally required to be disclosed, provided that Receiving Party and such\nRepresentatives shall exercise reasonable best efforts, at Disclosing Party’s expense, to minimize the disclosure of the Disclosing Party’s Evaluation\nMaterial or Transaction Information and to preserve the confidentiality thereof. Notwithstanding the foregoing, if Receiving Party is required to\ndisclose Evaluation Material or Transaction Information by law or the rules or regulations of any regulatory authority having jurisdiction over\nReceiving Party or a stock exchange or interdealer quotation system on which Receiving Party’s securities are traded or quoted, Receiving Party may\nmake such disclosure to the extent required (in which case Receiving Party shall use reasonable efforts to give Disclosing Party the opportunity to\ncomment on the planned disclosure).\n4. Return of Evaluation Material.\nAt any time upon the written request of Disclosing Party for any reason or upon the Receiving Party’s determination not to proceed with a\ntransaction with Disclosing Party:\n(a) Receiving Party shall promptly (and in no event later than five (5) business days after such request) return to Disclosing Party or\ndestroy (and certify in writing to Disclosing Party that it has destroyed) all Evaluation Material (and all copies thereof) furnished to Receiving Party\nor its Representatives by or on behalf of Disclosing Party, and shall not retain any copies, extracts or other reproductions (including Evaluation\nMaterial stored in any computer or other electronic storage device) in whole or in part of such material; and\n(b) Receiving Party and its Representatives shall destroy all Evaluation Material prepared by Receiving Party or its Representatives and\nshall not retain any copies, extracts or other reproductions (including Evaluation Material stored in any computer or other electronic storage device)\nin whole or in part of such material, and such destruction shall be certified in writing to Disclosing Party by an authorized officer of Receiving Party\nupon the request of Disclosing Party.\nNotwithstanding the foregoing, one copy of written or other tangible Evaluation Material may be kept by the Receiving Party in a secure\nlocation solely to the extent required to comply with applicable laws, provided that such copy is retained in a segregated area under the exclusive\ncontrol of (i) if MapInfo is the Receiving Party, its general counsel, and (ii) if PBI is the Receiving Party, its Vice President of Corporate\nDevelopment.\nNotwithstanding the return or destruction of Evaluation Material, Receiving Party and its Representatives shall continue to be bound by their\nobligations hereunder.\n4\n5. Term.\nThis Agreement shall apply to all Evaluation Material disclosed prior to the date that is twenty-four (24) months after the Effective Date.\nUnless otherwise expressly stated herein, the obligations set forth in this Agreement shall continue until the third (3rd) anniversary of the date of\ninitial disclosure of such Evaluation Material; provided, however, that if Disclosing Party notifies Receiving Party that any specific Evaluation\nMaterial is subject to a confidentiality obligation owed to a third party on the part of Disclosing Party that extends beyond such third\n(3rd) anniversary, Receiving Party shall abide by the obligations set forth in this Agreement with respect to such Evaluation Material for the term of\nDisclosing Party’s confidentiality obligation applicable to such Evaluation Material.\n6. Nonsolicitation.\nFor a period of eighteen (18) months from the Effective Date, PBI shall not solicit to employ any person who (i) is an officer of MapInfo or\nany of its subsidiaries whose name includes the word MapInfo, or (ii) is employed in any capacity by MapInfo or any of its subsidiaries whose name\nincludes the word MapInfo and with whom Representatives of PBI first came in contact or first identified during the process of considering a\nTransaction; provided, however, that this section shall not prevent PBI or its affiliates from soliciting or hiring a person identified in clause (i) or\n(ii) (a “Covered Person”) if: (1) such Covered Person contacts PBI or its affiliates or Representatives on the Covered Person’s own initiative without\nany direct or indirect solicitation by or encouragement from PBI or its Representatives; (2) the personnel of PBI or its affiliates who solicited or\nhired the Covered Person have no knowledge of any Evaluation Material and none of the personnel of PBI who have knowledge of any Evaluation\nMaterial have actual advance knowledge of such solicitation; (3) such Covered Person responds to a general solicitation of employment not\nspecifically directed toward MapInfo or any of its subsidiaries whose name includes the word MapInfo or particular employees of MapInfo or any of\nits subsidiaries whose name includes the word MapInfo; (4) such Covered Person is brought to PBI’s or one of its affiliate’s attention by an agency,\nsearch firm or other independent third party without direction by PBI or its affiliate to do so; or (5) PBI or one of its affiliates was discussing\nemployment with such Covered Person prior to the Effective Date.\n7. Standstill.\nPBI agrees that, for a period of eighteen (18) months from the Effective Date, unless PBI shall have been specifically invited in writing by\nMapInfo, neither PBI nor any of its affiliates shall in any manner, directly or indirectly:\n(a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way advise, assist or\nencourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, (i) any acquisition\nof any securities (or beneficial ownership thereof) or assets of MapInfo, (ii) any tender or exchange offer, merger or other business combination\ninvolving MapInfo, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to MapInfo, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any\nvoting securities of MapInfo;\n5\n(b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to any securities of MapInfo;\n(c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of\nMapInfo;\n(d) take any action which might force MapInfo to make a public announcement regarding any of the types of matters set forth in\nsubsection (a) above;\n(e) enter into any discussions or arrangements with any person with respect to any of the foregoing; or\n(f) communicate with MapInfo’s stockholders with respect to any of the foregoing.\n8. Trading in Securities.\nPBI and MapInfo each acknowledges that it is aware (and that its Representatives who are apprised of a possible Transaction have been or will\nbe so advised) that applicable securities laws prohibit any person who is aware of material, non-public information about a company obtained\ndirectly or indirectly from that company from purchasing or selling securities of such company or from communicating such information to any\nother person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n9. No Representations and Warranties; Relationship to Definitive Agreement.\n(a) PBI and MapInfo each understands and acknowledges that: (i) neither the other party nor its affiliates, nor any of the other party’s\nRepresentatives (including, in the case of MapInfo, Jefferies Broadview and its affiliates), nor any of the other party’s or its affiliates’ or its\nRepresentatives’ respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Exchange Act, has\nmade or is making any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material; and (ii) none of\nsuch persons or entities shall have any liability to the other party or any of its Representatives or any other person relating to or resulting from the\nuse of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a definitive\nagreement between the parties, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any\nlegal effect. For purposes of this Agreement, the term “definitive agreement” does not include any executed letter of intent or any other preliminary\nwritten agreement, nor does it include any written or verbal acceptance of any offer or bid made by one party.\n(b) PBI and MapInfo each understands and agrees that no contract or agreement providing for any transaction involving the parties shall\nbe deemed to exist unless and until a definitive agreement has been executed and delivered, and PBI and MapInfo each hereby\n6\nwaives in advance any claims, including without limitation claims for breach of contract, in connection with any transaction between the parties\nunless and until the parties shall have entered into a definitive agreement. PBI and MapInfo each also agrees that unless and until a definitive\nagreement regarding a transaction between the parties has been executed and delivered, the other party will not be under any legal obligation of any\nkind whatsoever with respect to such a transaction by virtue of this Agreement or any other written or oral communication with respect to such\ntransaction, except for the matters specifically agreed to herein.\n(c) PBI and MapInfo each reserves the right, in its sole discretion, to reject any and all proposals made by the other party with regard to a\ntransaction between the parties and to terminate discussions and negotiations with the other party at any time and for any reason or no reason. PBI\nunderstands that MapInfo and its Representatives shall be free to conduct any process for any transaction in such manner as they, in their sole\ndiscretion, shall determine (including without limitation negotiating with other parties and entering into a preliminary or definitive agreement\nwithout prior notice to PBI or any other person), and that any procedures relating to such process or transaction may be changed at any time without\nnotice to PBI or any other person.\n10. Contacts and Communications.\nFor a period of eighteen (18) months from the Effective Date: (a) PBI agrees that all contacts or communications by it or its Representatives\nwith MapInfo regarding a possible Transaction or the Evaluation Material, all requests for additional information, facility tours or management\nmeetings, and all discussions or questions regarding procedures with respect to a possible Transaction, will be submitted or directed only (i) to\nJefferies Broadview or (ii) as MapInfo shall otherwise instruct in writing, and (b) without the express prior consent of MapInfo, PBI agrees that it\nwill not, directly or indirectly, contact or communicate with any officer, employee, director, stockholder, agent, customer or business partner of\nDisclosing Party regarding Evaluation Material or a possible Transaction.\n11. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to\nthe conflicts of law principles thereof.\n(b) PBI and MapInfo each recognizes and acknowledges the competitive value and confidential nature of the Evaluation Material and\nthat irreparable damage may result to the other party if information contained therein or derived therefrom is disclosed to any person except as herein\nprovided or is used for any purpose other than the evaluation, negotiation and implementation of a possible Transaction. PBI and MapInfo each\nfurther understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by it or any of its\nRepresentatives, and that the other party may be entitled to equitable relief, including without limitation injunctive relief and specific performance,\nas a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement,\n7\nbut shall be in addition to all of a party’s other remedies available at law or in equity. In the event of litigation relating to this Agreement, if a court of\ncompetent jurisdiction determines in a final, nonappealable order that Receiving Party has breached this Agreement, then Receiving Party shall be\nliable for and pay to Disclosing Party the reasonable legal fees and disbursements that Disclosing Party has incurred in connection with such\nlitigation, including without limitation any appeal therefrom.\n(c) This Agreement may not be assigned in whole or in part by either party without the prior written consent of the other party; provided,\nhowever, that no such consent shall be required, and this Agreement may be assigned by a party, in the case of a sale by such party of all or\nsubstantially all of its business or assets, whether by merger, sale of assets or otherwise. Subject to the foregoing, this Agreement shall be binding\nupon and inure to the benefit of the parties and their respective successors and assigns.\n(d) This Agreement contains the entire agreement between the parties concerning the subject matter hereof. No provision of this\nAgreement may be waived or amended except by the express written consent of the parties. No failure or delay in exercising any right, power or\nprivilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or\nthe exercise of any other right, power or privilege hereunder.\n(e) All notices and other communications hereunder shall be in writing. Any notice or other communication hereunder shall be deemed\nduly delivered one (1) business day after it is sent for next-business-day delivery via a reputable nationwide overnight courier service, in each case to\nthe intended recipient as set forth below:\nIf to MapInfo:\nMapInfo Corporation\nOne Global View\nTroy, NY 12866\nAttention: General Counsel\nWith a copy to:\nWilmer Cutler Pickering Hale and Dorr LLP\n60 State Street\nBoston, MA -02109\nAttention: David A. Westenberg, Esq.\nIf to Receiving Party:\nPitney Bowes Inc.\n1 Elmcroft Road\nStamford, Connecticut 06926\nAttention: David Kleinman, Vice President, Corporate Development\n8\nWith a copy to:\nPitney Bowes Inc.\n1 Elmcroft Road\nStamford, Connecticut 06926\nAttention: Vice President, Law – Mergers and Acquisitions\nEither party may give any notice or other communication hereunder using any other means (including personal delivery, expedited courier,\nmessenger service, telecopy, ordinary mail or electronic mail), but no such notice or other communication shall be deemed duly given unless and\nuntil the party for whom it is intended actually receives it. Any party may change the address to which notices and other communications hereunder\nare to be delivered by giving the other party notice in the manner herein set forth.\n(f) For the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed\nto be an original, and both of which taken together, shall constitute one agreement binding on both parties.\n(g) The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or\ninterpretation of this Agreement.\n(h) Each Disclosing Party acknowledges that it is not acting as an advisor to the Receiving Party and will not receive any amount that\ncould be construed as a “minimum fee” within the meaning of United States Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the\nevent one party claims that the Transaction is a proprietary or exclusive transaction, then that party will confirm in writing to the other party that\nthere is no limitation on disclosure of the United States federal tax treatment or tax structure of the Transaction.\n[Remainder of page intentionally left blank]\n9\nExecuted as of the date first above written.\nMAPINFO CORPORATION\nBy: /s/ Jason W. Joseph\nTitle: General Counsel and Secretary\nPITNEY BOWES INC.\nBy: /s/ David Kleinman\nTitle: Vice President, Corporate Development\n[Signature page to Confidentiality Agreement]\n10	EX-99.(D)(6) 16 dex99d6.htm CONFIDENTIALITY AGREEMENT, DATED AS OF DECEMBER 19, 2006,\nBETWEEN PITNEY BOWES\nExhibit (d)(6)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is dated and effective as of December 19, 2006 (the “Effective Date”), between MapInfo\nCorporation, a Delaware corporation with its principal office at One Global View, Troy, NY 12866 (“MapInfo”), and Pitney Bowes Inc., a Delaware\ncorporation with its principal office at 1 Elmcroft Road, Stamford, Connecticut 06926 (“PBI”).\nBackground\nA. PBI has requested MapInfo to provide certain information, which is either confidential or proprietary in nature, in connection with PBI’s\nconsideration of a possible negotiated transaction between MapInfo and PBI (the “Transaction”); and in connection with such Transaction, PBI may\nprovide Maplnfo with certain information which is either confidential or proprietary in nature.\nB. MapInfo and PBI each desires to protect the confidentiality of the information that it provides and to have the other party take or abstain\nfrom taking certain actions in accordance with the provisions of this Agreement.\nNow, therefore, in consideration of the mutual covenants and promises contained in this Agreement and other good and valuable consideration,\nthe receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\n1. Definitions.\n(a) Each of MaplInfo and PBI is a “Disclosing Party” as to Evaluation Material concerning it that is furnished to the other party and is a\n“Receiving Party” as to Evaluation Material of the other party that is furnished to it.\n(b) “Evaluation Material” means any information concerning Disclosing Party (whether prepared by Disclosing Party, its Representatives\n(as defined herein) or otherwise, and regardless of the form of communication) that is furnished to Receiving Party or any of its Representatives by\nor on behalf of Disclosing Party on or after the date hereof, and any portions of notes, analyses, compilations, studies, interpretations, memoranda,\nreports or other documents (regardless of the form thereof) prepared by Receiving Party or its Representatives which contain, reflect or are based\nupon, in whole or in part, any information that is furnished to Receiving Party or its Representatives pursuant to this Agreement; provided, however,\nthat “Evaluation Material” does not include information concerning Disclosing Party which:\n(i) is or becomes generally available to the public other than as a result of a breach of this Agreement by Receiving Party or its\nRepresentatives;\n(ii) was within Receiving Party’s or any of its Representative’s possession prior to it being furnished to Receiving Party or its\nRepresentatives by or on behalf of\nDisclosing Party pursuant to this Agreement, provided that such information is not subject to another confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, Disclosing Party with respect to such information;\n(iii) becomes available to Receiving Party or any of its Representatives from a source other than Disclosing Party or any of its\nRepresentatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, Disclosing Party with respect to such information; or\n(iv) is independently developed by Receiving Party or others on its behalf without reference to or reliance upon any confidential\nor proprietary information furnished to Receiving Party or any of its Representatives by or on behalf of Disclosing Party.\n(c) “Representatives” means, with respect to a party, its parents and subsidiaries, and its and their respective directors, officers, affiliates,\nemployees, partners, agents or advisors (including without limitation attorneys, accountants, consultants and investment bankers).\n(d) The term “person” shall be broadly interpreted to include the media and any corporation, company, partnership, joint venture, group,\nlimited liability company, other entity or individual, and the term “affiliate” has the meaning set forth in Rule 12b-2 under the Securities Exchange\nAct of 1934, as amended (such Act, as amended, being referred to herein as the “Exchange Act”).\n2. Use and Disclosure of Evaluation Material.\n(a) Except as otherwise provided in this Agreement, Receiving Party hereby agrees that it and its Representatives shall:\n(i) use the other party’s Evaluation Material solely for the purpose of evaluating, negotiating and implementing a possible\nTransaction;\n(ii) keep the other party’s Evaluation Material confidential in accordance with the provisions of this Agreement; and\n(iii) not disclose any of the other party’s Evaluation Material except in accordance with the provisions of this Agreement;\nprovided, however, that Receiving Party may disclose any Evaluation Material to Receiving Party’s Representatives who need to know such\ninformation for the sole purpose of evaluating, negotiating and implementing a possible Transaction, provided that Receiving Party’s Representatives\nare informed of the confidential nature of such Evaluation Material and agree to use such information solely for the purpose of evaluating,\nnegotiating and implementing a possible Transaction and likewise agree to maintain the confidentiality of such Evaluation Material.\n2\n(b) Except as otherwise provided in this Agreement, neither MapInfo nor PBI nor any of their respective Representatives shall disclose\nto any other person (i) the existence of this Agreement, (ii) the fact that Evaluation Material has been made available by it to the other party or by the\nother party to it, (iii) that discussions are taking place concerning a possible Transaction between the parties, (iv) any of the terms, conditions or\nother facts with respect thereto, or (v) the status of such discussions (collectively, the “Transaction Information”). Without limiting the foregoing,\nReceiving Party agrees that, for a period of eighteen (18) months from the Effective Date, neither it nor its Representatives will enter into any\ndiscussions or any agreement, understanding or arrangement with any person regarding participation by such person or others in a negotiated\ntransaction with Disclosing Party, except that Receiving Party may, with Disclosing Party’s prior written consent, have discussions with other\npersons relating to obtaining debt (but not equity) financing for a negotiated transaction with Disclosing Party from commercial banks or other\ninstitutional sources if the persons with whom Receiving Party has such discussions agree to be bound by the terms of this Agreement.\n(c) Receiving Party shall be liable to Disclosing Party for any use or disclosure by any of Receiving Party’s Representatives of (i) the\nDisclosing Party’s Evaluation Material or (ii) Transaction Information which, if done by Receiving Party itself, would be a breach of this Agreement.\nReceiving Party agrees, at its sole expense, to take reasonable measures to restrain its Representatives from making or allowing to be made\nprohibited or unauthorized uses or disclosures of the Disclosing Party’s Evaluation Material and Transaction Information.\n(d) To the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree\nthat they have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of\nsuch material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to such protection under these privileges or\ndoctrines, under this Agreement and under the joint defense doctrine.\n3. Legally Required Disclosure.\nIf Receiving Party or any of its Representatives is requested or required (by oral questions, interrogatories, requests for information or\ndocuments in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Disclosing Party’s Evaluation\nMaterial or Transaction Information, Receiving Party shall, except as prohibited by law, provide Disclosing Party with prompt written notice of any\nsuch request or requirement so that Disclosing Party may seek, at Disclosing Party’s expense, a protective order or other remedy and/or waive\ncompliance with the provisions of this Agreement. If Disclosing Party seeks a protective order or other remedy, Receiving Party shall provide such\ncooperation, at Disclosing Party’s expense, as Disclosing Party shall reasonably request. If, in the absence of a protective\n3\norder or other remedy or the receipt by Receiving Party of a waiver from Disclosing Party, Receiving Party or any of its Representatives is\nnonetheless, in the opinion of its legal counsel, legally compelled to disclose Evaluation Material or Transaction Information to any tribunal or other\nentity or else stand liable for contempt or suffer other censure or penalty, Receiving Party or such Representatives may, without liability hereunder,\ndisclose to such tribunal or other entity only that portion of the Disclosing Party’s Evaluation Material or Transaction Information which such\ncounsel advises Receiving Party or such Representatives in writing is legally required to be disclosed, provided that Receiving Party and such\nRepresentatives shall exercise reasonable best efforts, at Disclosing Party’s expense, to minimize the disclosure of the Disclosing Party’s Evaluation\nMaterial or Transaction Information and to preserve the confidentiality thereof. Notwithstanding the foregoing, if Receiving Party is required to\ndisclose Evaluation Material or Transaction Information by law or the rules or regulations of any regulatory authority having jurisdiction over\nReceiving Party or a stock exchange or interdealer quotation system on which Receiving Party’s securities are traded or quoted, Receiving Party may\nmake such disclosure to the extent required (in which case Receiving Party shall use reasonable efforts to give Disclosing Party the opportunity to\ncomment on the planned disclosure).\n4, Return of Evaluation Material.\nAt any time upon the written request of Disclosing Party for any reason or upon the Receiving Party’s determination not to proceed with a\ntransaction with Disclosing Party:\n(a) Receiving Party shall promptly (and in no event later than five (5) business days after such request) return to Disclosing Party or\ndestroy (and certify in writing to Disclosing Party that it has destroyed) all Evaluation Material (and all copies thereof) furnished to Receiving Party\nor its Representatives by or on behalf of Disclosing Party, and shall not retain any copies, extracts or other reproductions (including Evaluation\nMaterial stored in any computer or other electronic storage device) in whole or in part of such material; and\n(b) Receiving Party and its Representatives shall destroy all Evaluation Material prepared by Receiving Party or its Representatives and\nshall not retain any copies, extracts or other reproductions (including Evaluation Material stored in any computer or other electronic storage device)\nin whole or in part of such material, and such destruction shall be certified in writing to Disclosing Party by an authorized officer of Receiving Party\nupon the request of Disclosing Party.\nNotwithstanding the foregoing, one copy of written or other tangible Evaluation Material may be kept by the Receiving Party in a secure\nlocation solely to the extent required to comply with applicable laws, provided that such copy is retained in a segregated area under the exclusive\ncontrol of (i) if MapInfo is the Receiving Party, its general counsel, and (ii) if PBI is the Receiving Party, its Vice President of Corporate\nDevelopment.\nNotwithstanding the return or destruction of Evaluation Material, Receiving Party and its Representatives shall continue to be bound by their\nobligations hereunder.\n5. Term.\nThis Agreement shall apply to all Evaluation Material disclosed prior to the date that is twenty-four (24) months after the Effective Date.\nUnless otherwise expressly stated herein, the obligations set forth in this Agreement shall continue until the third (3rd) anniversary of the date of\ninitial disclosure of such Evaluation Material; provided, however, that if Disclosing Party notifies Receiving Party that any specific Evaluation\nMaterial is subject to a confidentiality obligation owed to a third party on the part of Disclosing Party that extends beyond such third\n(3rd) anniversary, Receiving Party shall abide by the obligations set forth in this Agreement with respect to such Evaluation Material for the term of\nDisclosing Party’s confidentiality obligation applicable to such Evaluation Material.\n6. Nonsolicitation.\nFor a period of eighteen (18) months from the Effective Date, PBI shall not solicit to employ any person who (i) is an officer of MapInfo or\nany of its subsidiaries whose name includes the word MaplInfo, or (ii) is employed in any capacity by MapInfo or any of its subsidiaries whose name\nincludes the word MapInfo and with whom Representatives of PBI first came in contact or first identified during the process of considering a\nTransaction; provided, however, that this section shall not prevent PBI or its affiliates from soliciting or hiring a person identified in clause (i) or\n(ii) (a “Covered Person”) if: (1) such Covered Person contacts PBI or its affiliates or Representatives on the Covered Person’s own initiative without\nany direct or indirect solicitation by or encouragement from PBI or its Representatives; (2) the personnel of PBI or its affiliates who solicited or\nhired the Covered Person have no knowledge of any Evaluation Material and none of the personnel of PBI who have knowledge of any Evaluation\nMaterial have actual advance knowledge of such solicitation; (3) such Covered Person responds to a general solicitation of employment not\nspecifically directed toward MapInfo or any of its subsidiaries whose name includes the word MapInfo or particular employees of MapInfo or any of\nits subsidiaries whose name includes the word Maplnfo; (4) such Covered Person is brought to PBI’s or one of its affiliate’s attention by an agency,\nsearch firm or other independent third party without direction by PBI or its affiliate to do so; or (5) PBI or one of its affiliates was discussing\nemployment with such Covered Person prior to the Effective Date.\n7. Standstill.\nPBI agrees that, for a period of eighteen (18) months from the Effective Date, unless PBI shall have been specifically invited in writing by\nMaplnfo, neither PBI nor any of its affiliates shall in any manner, directly or indirectly:\n(a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way advise, assist or\nencourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, (i) any acquisition\nof any securities (or beneficial ownership thereof) or assets of MapInfo, (ii) any tender or exchange offer, merger or other business combination\ninvolving Maplnfo, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to MaplInfo, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any\nvoting securities of MapInfo;\n(b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to any securities of MapInfo;\n(c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of\nMaplnfo;\n(d) take any action which might force MapInfo to make a public announcement regarding any of the types of matters set forth in\nsubsection (a) above;\n(e) enter into any discussions or arrangements with any person with respect to any of the foregoing; or\n(f) communicate with MapInfo’s stockholders with respect to any of the foregoing.\n8. Trading in Securities.\nPBI and MaplInfo each acknowledges that it is aware (and that its Representatives who are apprised of a possible Transaction have been or will\nbe so advised) that applicable securities laws prohibit any person who is aware of material, non-public information about a company obtained\ndirectly or indirectly from that company from purchasing or selling securities of such company or from communicating such information to any\nother person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n(a) PBI and MaplInfo each understands and acknowledges that: (i) neither the other party nor its affiliates, nor any of the other party’s\nRepresentatives (including, in the case of MaplInfo, Jefferies Broadview and its affiliates), nor any of the other party’s or its affiliates” or its\nRepresentatives’ respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Exchange Act, has\nmade or is making any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material; and (ii) none of\nsuch persons or entities shall have any liability to the other party or any of its Representatives or any other person relating to or resulting from the\nuse of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a definitive\nagreement between the parties, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any\nlegal effect. For purposes of this Agreement, the term “definitive agreement” does not include any executed letter of intent or any other preliminary\nwritten agreement, nor does it include any written or verbal acceptance of any offer or bid made by one party.\n(b) PBI and MapInfo each understands and agrees that no contract or agreement providing for any transaction involving the parties shall\nbe deemed to exist unless and until a definitive agreement has been executed and delivered, and PBI and MapInfo each hereby\n6\nwaives in advance any claims, including without limitation claims for breach of contract, in connection with any transaction between the parties\nunless and until the parties shall have entered into a definitive agreement. PBI and MapInfo each also agrees that unless and until a definitive\nagreement regarding a transaction between the parties has been executed and delivered, the other party will not be under any legal obligation of any\nkind whatsoever with respect to such a transaction by virtue of this Agreement or any other written or oral communication with respect to such\ntransaction, except for the matters specifically agreed to herein.\n(c) PBI and Maplnfo each reserves the right, in its sole discretion, to reject any and all proposals made by the other party with regard to a\ntransaction between the parties and to terminate discussions and negotiations with the other party at any time and for any reason or no reason. PBI\nunderstands that MapInfo and its Representatives shall be free to conduct any process for any transaction in such manner as they, in their sole\ndiscretion, shall determine (including without limitation negotiating with other parties and entering into a preliminary or definitive agreement\nwithout prior notice to PBI or any other person), and that any procedures relating to such process or transaction may be changed at any time without\nnotice to PBI or any other person.\n10. Contacts and Communications.\nFor a period of eighteen (18) months from the Effective Date: (a) PBI agrees that all contacts or communications by it or its Representatives\nwith MaplInfo regarding a possible Transaction or the Evaluation Material, all requests for additional information, facility tours or management\nmeetings, and all discussions or questions regarding procedures with respect to a possible Transaction, will be submitted or directed only (i) to\nJefferies Broadview or (ii) as MapInfo shall otherwise instruct in writing, and (b) without the express prior consent of MapInfo, PBI agrees that it\nwill not, directly or indirectly, contact or communicate with any officer, employee, director, stockholder, agent, customer or business partner of\nDisclosing Party regarding Evaluation Material or a possible Transaction.\n11. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to\nthe conflicts of law principles thereof.\n(b) PBI and Maplnfo each recognizes and acknowledges the competitive value and confidential nature of the Evaluation Material and\nthat irreparable damage may result to the other party if information contained therein or derived therefrom is disclosed to any person except as herein\nprovided or is used for any purpose other than the evaluation, negotiation and implementation of a possible Transaction. PBI and MapInfo each\nfurther understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by it or any of its\nRepresentatives, and that the other party may be entitled to equitable relief, including without limitation injunctive relief and specific performance,\nas a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement,\n7\nbut shall be in addition to all of a party’s other remedies available at law or in equity. In the event of litigation relating to this Agreement, if a court of\ncompetent jurisdiction determines in a final, nonappealable order that Receiving Party has breached this Agreement, then Receiving Party shall be\nliable for and pay to Disclosing Party the reasonable legal fees and disbursements that Disclosing Party has incurred in connection with such\nlitigation, including without limitation any appeal therefrom.\n(c) This Agreement may not be assigned in whole or in part by either party without the prior written consent of the other party; provided,\nhowever, that no such consent shall be required, and this Agreement may be assigned by a party, in the case of a sale by such party of all or\nsubstantially all of its business or assets, whether by merger, sale of assets or otherwise. Subject to the foregoing, this Agreement shall be binding\nupon and inure to the benefit of the parties and their respective successors and assigns.\n(d) This Agreement contains the entire agreement between the parties concerning the subject matter hereof. No provision of this\nAgreement may be waived or amended except by the express written consent of the parties. No failure or delay in exercising any right, power or\nprivilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or\nthe exercise of any other right, power or privilege hereunder.\n(e) All notices and other communications hereunder shall be in writing. Any notice or other communication hereunder shall be deemed\nduly delivered one (1) business day after it is sent for next-business-day delivery via a reputable nationwide overnight courier service, in each case to\nthe intended recipient as set forth below:\nIf to MaplInfo:\nMaplnfo Corporation\nOne Global View\nTroy, NY 12866\nAttention: General Counsel\nWith a copy to:\nWilmer Cutler Pickering Hale and Dorr LLP\n60 State Street\nBoston, MA -02109\nAttention: David A. Westenberg, Esq.\nIf to Receiving Party:\nPitney Bowes Inc.\n1 Elmcroft Road\nStamford, Connecticut 06926\nAttention: David Kleinman, Vice President, Corporate Development\nWith a copy to:\nPitney Bowes Inc.\n1 Elmcroft Road\nStamford, Connecticut 06926\nAttention: Vice President, Law — Mergers and Acquisitions\nEither party may give any notice or other communication hereunder using any other means (including personal delivery, expedited courier,\nmessenger service, telecopy, ordinary mail or electronic mail), but no such notice or other communication shall be deemed duly given unless and\nuntil the party for whom it is intended actually receives it. Any party may change the address to which notices and other communications hereunder\nare to be delivered by giving the other party notice in the manner herein set forth.\n(f) For the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed\nto be an original, and both of which taken together, shall constitute one agreement binding on both parties.\n(g) The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or\ninterpretation of this Agreement.\n(h) Each Disclosing Party acknowledges that it is not acting as an advisor to the Receiving Party and will not receive any amount that\ncould be construed as a “minimum fee” within the meaning of United States Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the\nevent one party claims that the Transaction is a proprietary or exclusive transaction, then that party will confirm in writing to the other party that\nthere is no limitation on disclosure of the United States federal tax treatment or tax structure of the Transaction.\n[Remainder of page intentionally left blank]\n9\nExecuted as of the date first above written.\nMAPINFO CORPORATION\nBy: /s/Jason W. Joseph\nTitle: General Counsel and Secretary\nPITNEY BOWES INC.\nBy: /s/ David Kleinman\nTitle: Vice President, Corporate Development\n[Signature page to Confidentiality Agreement]\n10	EX-99.(D)(6) 16 dex99d6.htm CONFIDENTIALITY AGREEMENT, DATED AS OF DECEMBER 19, 2006,\nBETWEEN PITNEY BOWES\nExhibit (d)(6)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the "Agreement") is dated and effective as of December 19, 2006 (the "Effective Date"), between MapInfo\nCorporation, a Delaware corporation with its principal office at One Global View, Troy, NY 12866 ("MapInfo"), and Pitney Bowes Inc., a Delaware\ncorporation with its principal office at 1 Elmcroft Road, Stamford, Connecticut 06926 ("PBI").\nBackground\nA. PBI has requested MapInfo to provide certain information, which is either confidential or proprietary in nature, in connection with PBI's\nconsideration of a possible negotiated transaction between MapInfo and PBI (the "Transaction"); and in connection with such Transaction, PBI may\nprovide MapInfo with certain information which is either confidential or proprietary in nature.\nB. MapInfo and PBI each desires to protect the confidentiality of the information that it provides and to have the other party take or abstain\nfrom taking certain actions in accordance with the provisions of this Agreement.\nNow, therefore, in consideration of the mutual covenants and promises contained in this Agreement and other good and valuable consideration\nthe receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\n1. Definitions.\n(a) Each of MapInfo and PBI is a "Disclosing Party" as to Evaluation Material concerning it that is furnished to the other party and is\na\n"Receiving Party" as to Evaluation Material of the other party that is furnished to it.\n(b) "Evaluation Material" means any information concerning Disclosing Party (whether prepared by Disclosing Party, its Representatives\n(as defined herein) or otherwise, and regardless of the form of communication) that is furnished to Receiving Party or any of its Representatives by\nor on behalf of Disclosing Party on or after the date hereof, and any portions of notes, analyses, compilations, studies, interpretations, memoranda,\nreports or other documents (regardless of the form thereof) prepared by Receiving Party or its Representatives which contain, reflect or are based\nupon, in whole or in part, any information that is furnished to Receiving Party or its Representatives pursuant to this Agreement; provided, however,\nthat "Evaluation Material" does not include information concerning Disclosing Party which:\n(i) is or becomes generally available to the public other than as a result of a breach of this Agreement by Receiving Party or its\nRepresentatives;\n(ii) was within Receiving Party's or any of its Representative's possession prior to it being furnished to Receiving Party or\nits\nRepresentatives by or on behalf of\n1\nDisclosing Party pursuant to this Agreement, provided that such information is not subject to another confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, Disclosing Party with respect to such information;\n(iii) becomes available to Receiving Party or any of its Representatives from a source other than Disclosing Party or any of its\nRepresentatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, Disclosing Party with respect to such information; or\n(iv) is independently developed by Receiving Party or others on its behalf without reference to or reliance upon any confidential\nor proprietary information furnished to Receiving Party or any of its Representatives by or on behalf of Disclosing Party.\n(c) "Representatives" means, with respect to a party, its parents and subsidiaries, and its and their respective directors, officers, affiliates,\nemployees, partners, agents or advisors (including without limitation attorneys, accountants, consultants and investment bankers).\n(d) The term "person" shall be broadly interpreted to include the media and any corporation, company, partnership, joint venture, group,\nlimited liability company, other entity or individual, and the term "affiliate" has the meaning set forth in Rule 12b-2 under the Securities Exchange\nAct of 1934, as amended (such Act, as amended, being referred to herein as the "Exchange Act").\n2. Use and Disclosure of Evaluation Material.\n(a) Except as otherwise provided in this Agreement, Receiving Party hereby agrees that it and its Representatives shall:\n(i) use the other party's Evaluation Material solely for the purpose of evaluating, negotiating and implementing a possible\nTransaction;\n(ii) keep the other party's Evaluation Material confidential in accordance with the provisions of this Agreement; and\n(iii) not disclose any of the other party's Evaluation Material except in accordance with the provisions of this Agreement;\nprovided, however, that Receiving Party may disclose any Evaluation Material to Receiving Party's Representatives who need to know such\ninformation for the sole purpose of evaluating, negotiating and implementing a possible Transaction, provided that Receiving Party's Representatives\nare informed of the confidential nature of such Evaluation Material and agree to use such information solely for the purpose of evaluating,\nnegotiating and implementing a possible Transaction and likewise agree to maintain the confidentiality of such Evaluation Material.\n2\n(b) Except as otherwise provided in this Agreement, neither MapInfo nor PBI nor any of their respective Representatives shall disclose\nto any other person (i) the existence of this Agreement, (ii) the fact that Evaluation Material has been made available by it to the other party or by the\nother party to it, (iii) that discussions are taking place concerning a possible Transaction between the parties, (iv) any of the terms, conditions or\nother facts with respect thereto, or (v) the status of such discussions (collectively, the "Transaction Information"). Without limiting the foregoing,\nReceiving Party agrees that, for a period of eighteen (18) months from the Effective Date, neither it nor its Representatives will enter into any\ndiscussions or any agreement, understanding or arrangement with any person regarding participation by such person or others in a negotiated\ntransaction with Disclosing Party, except that Receiving Party may, with Disclosing Party's prior written consent, have discussions with other\npersons relating to obtaining debt (but not equity) financing for a negotiated transaction with Disclosing Party from commercial banks or other\ninstitutional sources if the persons with whom Receiving Party has such discussions agree to be bound by the terms of this Agreement.\n(c) Receiving Party shall be liable to Disclosing Party for any use or disclosure by any of Receiving Party's Representatives of (i) the\nDisclosing Party's Evaluation Material or (ii) Transaction Information which, if done by Receiving Party itself, would be a breach of this Agreement\nReceiving Party agrees, at its sole expense, to take reasonable measures to restrain its Representatives from making or allowing to be made\nprohibited or unauthorized uses or disclosures of the Disclosing Party's Evaluation Material and Transaction Information.\n(d) To the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree\nthat they have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of\nsuch material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to such protection under these privileges\nor\ndoctrines, under this Agreement and under the joint defense doctrine.\n3. Legally Required Disclosure.\nIf Receiving Party or any of its Representatives is requested or required (by oral questions, interrogatories, requests for information or\ndocuments in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Disclosing Party's Evaluation\nMaterial or Transaction Information, Receiving Party shall, except as prohibited by law, provide Disclosing Party with prompt written notice of any\nsuch request or requirement so that Disclosing Party may seek, at Disclosing Party's expense, a protective order or other remedy and/or waive\ncompliance with the provisions of this Agreement. If Disclosing Party seeks a protective order or other remedy, Receiving Party shall provide such\ncooperation, at Disclosing Party's expense, as Disclosing Party shall reasonably request. If, in the absence of a protective\n3\norder or other remedy or the receipt by Receiving Party of a waiver from Disclosing Party, Receiving Party or any of its Representatives is\nnonetheless, in the opinion of its legal counsel, legally compelled to disclose Evaluation Material or Transaction Information to any tribunal or other\nentity or else stand liable for contempt or suffer other censure or penalty, Receiving Party or such Representatives may, without liability hereunder,\ndisclose to such tribunal or other entity only that portion of the Disclosing Party's Evaluation Material or Transaction Information which such\ncounsel advises Receiving Party or such Representatives in writing is legally required to be disclosed, provided that Receiving Party and such\nRepresentatives shall exercise reasonable best efforts, at Disclosing Party's expense, to minimize the disclosure of the Disclosing Party's Evaluation\nMaterial or Transaction Information and to preserve the confidentiality thereof. Notwithstanding the foregoing, if Receiving Party is required to\ndisclose Evaluation Material or Transaction Information by law or the rules or regulations of any regulatory authority having jurisdiction over\nReceiving Party or a stock exchange or interdealer quotation system on which Receiving Party's securities are traded or quoted, Receiving Party may\nmake such disclosure to the extent required (in which case Receiving Party shall use reasonable efforts to give Disclosing Party the opportunity to\ncomment on the planned disclosure).\n4. Return of Evaluation Material.\nAt any time upon the written request of Disclosing Party for any reason or upon the Receiving Party's determination not to proceed with a\ntransaction with Disclosing Party:\n(a) Receiving Party shall promptly (and in no event later than five (5) business days after such request) return to Disclosing Party or\ndestroy (and certify in writing to Disclosing Party that it has destroyed) all Evaluation Material (and all copies thereof) furnished to Receiving Party\nor its Representatives by or on behalf of Disclosing Party, and shall not retain any copies, extracts or other reproductions (including Evaluation\nMaterial stored in any computer or other electronic storage device) in whole or in part of such material; and\n(b) Receiving Party and its Representatives shall destroy all Evaluation Material prepared by Receiving Party or its Representatives and\nshall not retain any copies, extracts or other reproductions (including Evaluation Material stored in any computer or other electronic storage device)\nin whole or in part of such material, and such destruction shall be certified in writing to Disclosing Party by an authorized officer of Receiving Party\nupon the request of Disclosing Party.\nNotwithstanding the foregoing, one copy of written or other tangible Evaluation Material may be kept by the Receiving Party in a secure\nlocation solely to the extent required to comply with applicable laws, provided that such copy is retained in a segregated area under the exclusive\ncontrol of (i) if MapInfo is the Receiving Party, its general counsel, and (ii) if PBI is the Receiving Party, its Vice President of Corporate\nDevelopment.\nNotwithstanding the return or destruction of Evaluation Material, Receiving Party and its Representatives shall continue to be bound by their\nobligations hereunder.\n4\n5. Term\nThis Agreement shall apply to all Evaluation Material disclosed prior to the date that is twenty-four (24) months after the Effective Date.\nUnless otherwise expressly stated herein, the obligations set forth in this Agreement shall continue until the third (3rd) anniversary of the date of\ninitial disclosure of such Evaluation Material; provided, however, that if Disclosing Party notifies Receiving Party that any specific Evaluation\nMaterial is subject to a confidentiality obligation owed to a third party on the part of Disclosing Party that extends beyond such third\n(3rd) anniversary, Receiving Party shall abide by the obligations set forth in this Agreement with respect to such Evaluation Material for the term\nof\nDisclosing Party's confidentiality obligation applicable to such Evaluation Material.\n6. Nonsolicitation.\nFor a period of eighteen (18) months from the Effective Date, PBI shall not solicit to employ any person who (i) is an officer of MapInfo or\nany of its subsidiaries whose name includes the word MapInfo, or (ii) is employed in any capacity by MapInfo or any of its subsidiaries whose name\nincludes the word MapInfo and with whom Representatives of PBI first came in contact or first identified during the process of considering a\nTransaction; provided, however, that this section shall not prevent PBI or its affiliates from soliciting or hiring a person identified in clause (i) or\n(ii) (a "Covered Person") if: (1) such Covered Person contacts PBI or its affiliates or Representatives on the Covered Person's own initiative without\nany direct or indirect solicitation by or encouragement from PBI or its Representatives; (2) the personnel of PBI or its affiliates who solicited or\nhired the Covered Person have no knowledge of any Evaluation Material and none of the personnel of PBI who have knowledge of any Evaluation\nMaterial have actual advance knowledge of such solicitation; (3) such Covered Person responds to a general solicitation of employment not\nspecifically directed toward MapInfo or any of its subsidiaries whose name includes the word MapInfo or particular employees of MapInfo or any\nof\nits\nsubsidiaries whose name includes the word MapInfo; (4) such Covered Person is brought to PBI's or one of its affiliate's attention by an agency,\nsearch firm or other independent third party without direction by PBI or its affiliate to do so; or (5) PBI or one of its affiliates was discussing\nemployment with such Covered Person prior to the Effective Date.\n7. Standstill.\nPBI agrees that, for a period of eighteen (18) months from the Effective Date, unless PBI shall have been specifically invited in writing by\nMapInfo, neither PBI nor any of its affiliates shall in any manner, directly or indirectly:\n(a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way advise, assist or\nencourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, (i) any acquisition\nof any securities (or beneficial ownership thereof) or assets of MapInfo, (ii) any tender or exchange offer, merger or other business combination\ninvolving MapInfo, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to MapInfo, or\n(iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any\nvoting securities of MapInfo;\n5\n(b) form, join or in any way participate in a "group" (as defined under the Exchange Act) with respect to any securities of MapInfo;\n(c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of\nMapInfo;\n(d) take any action which might force MapInfo to make a public announcement regarding any of the types of matters set forth in\nsubsection (a) above;\n(e) enter into any discussions or arrangements with any person with respect to any of the foregoing; or\n(f) communicate with MapInfo's stockholders with respect to any of the foregoing.\n8. Trading in Securities.\nPBI and MapInfo each acknowledges that it is aware (and that its Representatives who are apprised of a possible Transaction have been or will\nbe so advised) that applicable securities laws prohibit any person who is aware of material, non-public information about a company obtained\ndirectly or indirectly from that company from purchasing or selling securities of such company or from communicating such information to any\nother person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n9. No Representations and Warranties; Relationship to Definitive Agreement.\n(a) PBI and MapInfo each understands and acknowledges that: (i) neither the other party nor its affiliates, nor any of the other party's\nRepresentatives (including, in the case of MapInfo, Jefferies Broadview and its affiliates), nor any of the other party's or its affiliates' or its\nRepresentatives' respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Exchange Act, has\nmade or is making any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material; and (ii) none of\nsuch persons or entities shall have any liability to the other party or any of its Representatives or any other person relating to or resulting from the\nuse of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a definitive\nagreement between the parties, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any\nlegal effect. For purposes of this Agreement, the term "definitive agreement" does not include any executed letter of intent or any other preliminary\nwritten agreement, nor does it include any written or verbal acceptance of any offer or bid made by one party\n(b) PBI and MapInfo each understands and agrees that no contract or agreement providing for any transaction involving the parties shall\nbe deemed to exist unless and until a definitive agreement has been executed and delivered, and PBI and MapInfo each hereby\n6\nwaives in advance any claims, including without limitation claims for breach of contract, in connection with any transaction between the parties\nunless and until the parties shall have entered into a definitive agreement. PBI and MapInfo each also agrees that unless and until a definitive\nagreement regarding a transaction between the parties has been executed and delivered, the other party will not be under any legal obligation of any\nkind whatsoever with respect to such a transaction by virtue of this Agreement or any other written or oral communication with respect to such\ntransaction, except for the matters specifically agreed to herein.\n(c) PBI and MapInfo each reserves the right, in its sole discretion, to reject any and all proposals made by the other party with regard to a\ntransaction between the parties and to terminate discussions and negotiations with the other party at any time and for any reason or no reason. PBI\nunderstands that MapInfo and its Representatives shall be free to conduct any process for any transaction in such manner as they, in their sole\ndiscretion, shall determine (including without limitation negotiating with other parties and entering into a preliminary or definitive agreement\nwithout prior notice to PBI or any other person), and that any procedures relating to such process or transaction may be changed at any time without\nnotice to PBI or any other person.\n10. Contacts and Communications.\nFor a period of eighteen (18) months from the Effective Date: (a) PBI agrees that all contacts or communications by it or its Representatives\nwith MapInfo regarding a possible Transaction or the Evaluation Material, all requests for additional information, facility tours or management\nmeetings, and all discussions or questions regarding procedures with respect to a possible Transaction, will be submitted or directed only (i) to\nJefferies Broadview or (ii) as MapInfo shall otherwise instruct in writing, and (b) without the express prior consent of MapInfo, PBI agrees that it\nwill not, directly or indirectly, contact or communicate with any officer, employee, director, stockholder, agent, customer or business partner of\nDisclosing Party regarding Evaluation Material or a possible Transaction.\n11. Miscellaneous\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect\nto\nthe conflicts of law principles thereof.\n(b) PBI and MapInfo each recognizes and acknowledges the competitive value and confidential nature of the Evaluation Material and\nthat irreparable damage may result to the other party if information contained therein or derived therefrom is disclosed to any person except as herein\nprovided or is used for any purpose other than the evaluation, negotiation and implementation of a possible Transaction PBI and MapInfo each\nfurther understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by it or any of its\nRepresentatives, and that the other party may be entitled to equitable relief, including without limitation injunctive relief and specific performance,\nas a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement,\n7\nbut shall be in addition to all of a party's other remedies available at law or in equity. In the event of litigation relating to this Agreement, if a court of\ncompetent jurisdiction determines in a final, nonappealable order that Receiving Party has breached this Agreement, then Receiving Party shall be\nliable for and pay to Disclosing Party the reasonable legal fees and disbursements that Disclosing Party has incurred in connection with such\nlitigation, including without limitation any appeal therefrom.\n(c) This Agreement may not be assigned in whole or in part by either party without the prior written consent of the other party; provided,\nhowever, that no such consent shall be required, and this Agreement may be assigned by a party, in the case of a sale by such party of all or\nsubstantially all of its business or assets, whether by merger, sale of assets or otherwise. Subject to the foregoing, this Agreement shall be binding\nupon and inure to the benefit of the parties and their respective successors and assigns.\n(d) This Agreement contains the entire agreement between the parties concerning the subject matter hereof. No provision of this\nAgreement may be waived or amended except by the express written consent of the parties No failure or delay in exercising any right, power or\nprivilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or\nthe exercise of any other right, power or privilege hereunder.\n(e) All notices and other communications hereunder shall be in writing. Any notice or other communication hereunder shall be deemed\nduly delivered one (1) business day after it is sent for next-business-day delivery via a reputable nationwide overnight courier service, in each case\nto\nthe intended recipient as set forth below:\nIf to MapInfo:\nMapInfo Corporation\nOne Global View\nTroy, NY 12866\nAttention: General Counsel\nWith a copy to:\nWilmer Cutler Pickering Hale and Dorr LLP\n60 State Street\nBoston, MA -02109\nAttention: David A. Westenberg, Esq.\nIf to Receiving Party:\nPitney Bowes Inc.\n1 Elmcroft Road\nStamford, Connecticut 06926\nAttention: David Kleinman, Vice President, Corporate Development\n8\nWith a copy to:\nPitney Bowes Inc.\n1 Elmcroft Road\nStamford, Connecticut 06926\nAttention: Vice President, Law - Mergers and Acquisitions\nEither party may give any notice or other communication hereunder using any other means (including personal delivery, expedited courier,\nmessenger service, telecopy, ordinary mail or electronic mail), but no such notice or other communication shall be deemed duly given unless and\nuntil the party for whom it is intended actually receives it. Any party may change the address to which notices and other communications hereunder\nare to be delivered by giving the other party notice in the manner herein set forth.\n(f) For the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed\nto be an original, and both of which taken together, shall constitute one agreement binding on both parties.\n(g) The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or\ninterpretation of this Agreement.\n(h) Each Disclosing Party acknowledges that it is not acting as an advisor to the Receiving Party and will not receive any amount that\ncould be construed as a "minimum fee" within the meaning of United States Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the\nevent one party claims that the Transaction is a proprietary or exclusive transaction, then that party will confirm in writing to the other party that\nthere is no limitation on disclosure of the United States federal tax treatment or tax structure of the Transaction.\n[Remainder of page intentionally left blank]\n9\nExecuted as of the date first above written.\nMAPINFO CORPORATION\nBy: /s/ Jason W. Joseph\nTitle: General Counsel and Secretary\nPITNEY BOWES INC.\nBy: /s/ David Kleinman\nTitle: Vice President, Corporate Development\n[Signature page to Confidentiality Agreement]\n10	EX-99.(D)(6) 16 dex99d6.htm CONFIDENTIALITY AGREEMENT, DATED AS OF DECEMBER 19, 2006,\nBETWEEN PITNEY BOWES\nExhibit (d)(6)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is dated and effective as of December 19, 2006 (the “Effective Date”), between MapInfo\nCorporation, a Delaware corporation with its principal office at One Global View, Troy, NY 12866 (“MapInfo”), and Pitney Bowes Inc., a Delaware\ncorporation with its principal office at 1 Elmcroft Road, Stamford, Connecticut 06926 (“PBI”).\nBackground\nA. PBI has requested MapInfo to provide certain information, which is either confidential or proprietary in nature, in connection with PBI’s\nconsideration of a possible negotiated transaction between MapInfo and PBI (the “Transaction”); and in connection with such Transaction, PBI may\nprovide MapInfo with certain information which is either confidential or proprietary in nature.\nB. MapInfo and PBI each desires to protect the confidentiality of the information that it provides and to have the other party take or abstain\nfrom taking certain actions in accordance with the provisions of this Agreement.\nNow, therefore, in consideration of the mutual covenants and promises contained in this Agreement and other good and valuable consideration,\nthe receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\n1. Definitions.\n(a) Each of MapInfo and PBI is a “Disclosing Party” as to Evaluation Material concerning it that is furnished to the other party and is a\n“Receiving Party” as to Evaluation Material of the other party that is furnished to it.\n(b) “Evaluation Material” means any information concerning Disclosing Party (whether prepared by Disclosing Party, its Representatives\n(as defined herein) or otherwise, and regardless of the form of communication) that is furnished to Receiving Party or any of its Representatives by\nor on behalf of Disclosing Party on or after the date hereof, and any portions of notes, analyses, compilations, studies, interpretations, memoranda,\nreports or other documents (regardless of the form thereof) prepared by Receiving Party or its Representatives which contain, reflect or are based\nupon, in whole or in part, any information that is furnished to Receiving Party or its Representatives pursuant to this Agreement; provided, however,\nthat “Evaluation Material” does not include information concerning Disclosing Party which:\n(i) is or becomes generally available to the public other than as a result of a breach of this Agreement by Receiving Party or its\nRepresentatives;\n(ii) was within Receiving Party’s or any of its Representative’s possession prior to it being furnished to Receiving Party or its\nRepresentatives by or on behalf of\n1\nDisclosing Party pursuant to this Agreement, provided that such information is not subject to another confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, Disclosing Party with respect to such information;\n(iii) becomes available to Receiving Party or any of its Representatives from a source other than Disclosing Party or any of its\nRepresentatives, provided that such source is not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, Disclosing Party with respect to such information; or\n(iv) is independently developed by Receiving Party or others on its behalf without reference to or reliance upon any confidential\nor proprietary information furnished to Receiving Party or any of its Representatives by or on behalf of Disclosing Party.\n(c) “Representatives” means, with respect to a party, its parents and subsidiaries, and its and their respective directors, officers, affiliates,\nemployees, partners, agents or advisors (including without limitation attorneys, accountants, consultants and investment bankers).\n(d) The term “person” shall be broadly interpreted to include the media and any corporation, company, partnership, joint venture, group,\nlimited liability company, other entity or individual, and the term “affiliate” has the meaning set forth in Rule 12b-2 under the Securities Exchange\nAct of 1934, as amended (such Act, as amended, being referred to herein as the “Exchange Act”).\n2. Use and Disclosure of Evaluation Material.\n(a) Except as otherwise provided in this Agreement, Receiving Party hereby agrees that it and its Representatives shall:\n(i) use the other party’s Evaluation Material solely for the purpose of evaluating, negotiating and implementing a possible\nTransaction;\n(ii) keep the other party’s Evaluation Material confidential in accordance with the provisions of this Agreement; and\n(iii) not disclose any of the other party’s Evaluation Material except in accordance with the provisions of this Agreement;\nprovided, however, that Receiving Party may disclose any Evaluation Material to Receiving Party’s Representatives who need to know such\ninformation for the sole purpose of evaluating, negotiating and implementing a possible Transaction, provided that Receiving Party’s Representatives\nare informed of the confidential nature of such Evaluation Material and agree to use such information solely for the purpose of evaluating,\nnegotiating and implementing a possible Transaction and likewise agree to maintain the confidentiality of such Evaluation Material.\n2\n(b) Except as otherwise provided in this Agreement, neither MapInfo nor PBI nor any of their respective Representatives shall disclose\nto any other person (i) the existence of this Agreement, (ii) the fact that Evaluation Material has been made available by it to the other party or by the\nother party to it, (iii) that discussions are taking place concerning a possible Transaction between the parties, (iv) any of the terms, conditions or\nother facts with respect thereto, or (v) the status of such discussions (collectively, the “Transaction Information”). Without limiting the foregoing,\nReceiving Party agrees that, for a period of eighteen (18) months from the Effective Date, neither it nor its Representatives will enter into any\ndiscussions or any agreement, understanding or arrangement with any person regarding participation by such person or others in a negotiated\ntransaction with Disclosing Party, except that Receiving Party may, with Disclosing Party’s prior written consent, have discussions with other\npersons relating to obtaining debt (but not equity) financing for a negotiated transaction with Disclosing Party from commercial banks or other\ninstitutional sources if the persons with whom Receiving Party has such discussions agree to be bound by the terms of this Agreement.\n(c) Receiving Party shall be liable to Disclosing Party for any use or disclosure by any of Receiving Party’s Representatives of (i) the\nDisclosing Party’s Evaluation Material or (ii) Transaction Information which, if done by Receiving Party itself, would be a breach of this Agreement.\nReceiving Party agrees, at its sole expense, to take reasonable measures to restrain its Representatives from making or allowing to be made\nprohibited or unauthorized uses or disclosures of the Disclosing Party’s Evaluation Material and Transaction Information.\n(d) To the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree\nthat they have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of\nsuch material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to such protection under these privileges or\ndoctrines, under this Agreement and under the joint defense doctrine.\n3. Legally Required Disclosure.\nIf Receiving Party or any of its Representatives is requested or required (by oral questions, interrogatories, requests for information or\ndocuments in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Disclosing Party’s Evaluation\nMaterial or Transaction Information, Receiving Party shall, except as prohibited by law, provide Disclosing Party with prompt written notice of any\nsuch request or requirement so that Disclosing Party may seek, at Disclosing Party’s expense, a protective order or other remedy and/or waive\ncompliance with the provisions of this Agreement. If Disclosing Party seeks a protective order or other remedy, Receiving Party shall provide such\ncooperation, at Disclosing Party’s expense, as Disclosing Party shall reasonably request. If, in the absence of a protective\n3\norder or other remedy or the receipt by Receiving Party of a waiver from Disclosing Party, Receiving Party or any of its Representatives is\nnonetheless, in the opinion of its legal counsel, legally compelled to disclose Evaluation Material or Transaction Information to any tribunal or other\nentity or else stand liable for contempt or suffer other censure or penalty, Receiving Party or such Representatives may, without liability hereunder,\ndisclose to such tribunal or other entity only that portion of the Disclosing Party’s Evaluation Material or Transaction Information which such\ncounsel advises Receiving Party or such Representatives in writing is legally required to be disclosed, provided that Receiving Party and such\nRepresentatives shall exercise reasonable best efforts, at Disclosing Party’s expense, to minimize the disclosure of the Disclosing Party’s Evaluation\nMaterial or Transaction Information and to preserve the confidentiality thereof. Notwithstanding the foregoing, if Receiving Party is required to\ndisclose Evaluation Material or Transaction Information by law or the rules or regulations of any regulatory authority having jurisdiction over\nReceiving Party or a stock exchange or interdealer quotation system on which Receiving Party’s securities are traded or quoted, Receiving Party may\nmake such disclosure to the extent required (in which case Receiving Party shall use reasonable efforts to give Disclosing Party the opportunity to\ncomment on the planned disclosure).\n4. Return of Evaluation Material.\nAt any time upon the written request of Disclosing Party for any reason or upon the Receiving Party’s determination not to proceed with a\ntransaction with Disclosing Party:\n(a) Receiving Party shall promptly (and in no event later than five (5) business days after such request) return to Disclosing Party or\ndestroy (and certify in writing to Disclosing Party that it has destroyed) all Evaluation Material (and all copies thereof) furnished to Receiving Party\nor its Representatives by or on behalf of Disclosing Party, and shall not retain any copies, extracts or other reproductions (including Evaluation\nMaterial stored in any computer or other electronic storage device) in whole or in part of such material; and\n(b) Receiving Party and its Representatives shall destroy all Evaluation Material prepared by Receiving Party or its Representatives and\nshall not retain any copies, extracts or other reproductions (including Evaluation Material stored in any computer or other electronic storage device)\nin whole or in part of such material, and such destruction shall be certified in writing to Disclosing Party by an authorized officer of Receiving Party\nupon the request of Disclosing Party.\nNotwithstanding the foregoing, one copy of written or other tangible Evaluation Material may be kept by the Receiving Party in a secure\nlocation solely to the extent required to comply with applicable laws, provided that such copy is retained in a segregated area under the exclusive\ncontrol of (i) if MapInfo is the Receiving Party, its general counsel, and (ii) if PBI is the Receiving Party, its Vice President of Corporate\nDevelopment.\nNotwithstanding the return or destruction of Evaluation Material, Receiving Party and its Representatives shall continue to be bound by their\nobligations hereunder.\n4\n5. Term.\nThis Agreement shall apply to all Evaluation Material disclosed prior to the date that is twenty-four (24) months after the Effective Date.\nUnless otherwise expressly stated herein, the obligations set forth in this Agreement shall continue until the third (3rd) anniversary of the date of\ninitial disclosure of such Evaluation Material; provided, however, that if Disclosing Party notifies Receiving Party that any specific Evaluation\nMaterial is subject to a confidentiality obligation owed to a third party on the part of Disclosing Party that extends beyond such third\n(3rd) anniversary, Receiving Party shall abide by the obligations set forth in this Agreement with respect to such Evaluation Material for the term of\nDisclosing Party’s confidentiality obligation applicable to such Evaluation Material.\n6. Nonsolicitation.\nFor a period of eighteen (18) months from the Effective Date, PBI shall not solicit to employ any person who (i) is an officer of MapInfo or\nany of its subsidiaries whose name includes the word MapInfo, or (ii) is employed in any capacity by MapInfo or any of its subsidiaries whose name\nincludes the word MapInfo and with whom Representatives of PBI first came in contact or first identified during the process of considering a\nTransaction; provided, however, that this section shall not prevent PBI or its affiliates from soliciting or hiring a person identified in clause (i) or\n(ii) (a “Covered Person”) if: (1) such Covered Person contacts PBI or its affiliates or Representatives on the Covered Person’s own initiative without\nany direct or indirect solicitation by or encouragement from PBI or its Representatives; (2) the personnel of PBI or its affiliates who solicited or\nhired the Covered Person have no knowledge of any Evaluation Material and none of the personnel of PBI who have knowledge of any Evaluation\nMaterial have actual advance knowledge of such solicitation; (3) such Covered Person responds to a general solicitation of employment not\nspecifically directed toward MapInfo or any of its subsidiaries whose name includes the word MapInfo or particular employees of MapInfo or any of\nits subsidiaries whose name includes the word MapInfo; (4) such Covered Person is brought to PBI’s or one of its affiliate’s attention by an agency,\nsearch firm or other independent third party without direction by PBI or its affiliate to do so; or (5) PBI or one of its affiliates was discussing\nemployment with such Covered Person prior to the Effective Date.\n7. Standstill.\nPBI agrees that, for a period of eighteen (18) months from the Effective Date, unless PBI shall have been specifically invited in writing by\nMapInfo, neither PBI nor any of its affiliates shall in any manner, directly or indirectly:\n(a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way advise, assist or\nencourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, (i) any acquisition\nof any securities (or beneficial ownership thereof) or assets of MapInfo, (ii) any tender or exchange offer, merger or other business combination\ninvolving MapInfo, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to MapInfo, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any\nvoting securities of MapInfo;\n5\n(b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to any securities of MapInfo;\n(c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of\nMapInfo;\n(d) take any action which might force MapInfo to make a public announcement regarding any of the types of matters set forth in\nsubsection (a) above;\n(e) enter into any discussions or arrangements with any person with respect to any of the foregoing; or\n(f) communicate with MapInfo’s stockholders with respect to any of the foregoing.\n8. Trading in Securities.\nPBI and MapInfo each acknowledges that it is aware (and that its Representatives who are apprised of a possible Transaction have been or will\nbe so advised) that applicable securities laws prohibit any person who is aware of material, non-public information about a company obtained\ndirectly or indirectly from that company from purchasing or selling securities of such company or from communicating such information to any\nother person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n9. No Representations and Warranties; Relationship to Definitive Agreement.\n(a) PBI and MapInfo each understands and acknowledges that: (i) neither the other party nor its affiliates, nor any of the other party’s\nRepresentatives (including, in the case of MapInfo, Jefferies Broadview and its affiliates), nor any of the other party’s or its affiliates’ or its\nRepresentatives’ respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Exchange Act, has\nmade or is making any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material; and (ii) none of\nsuch persons or entities shall have any liability to the other party or any of its Representatives or any other person relating to or resulting from the\nuse of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a definitive\nagreement between the parties, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any\nlegal effect. For purposes of this Agreement, the term “definitive agreement” does not include any executed letter of intent or any other preliminary\nwritten agreement, nor does it include any written or verbal acceptance of any offer or bid made by one party.\n(b) PBI and MapInfo each understands and agrees that no contract or agreement providing for any transaction involving the parties shall\nbe deemed to exist unless and until a definitive agreement has been executed and delivered, and PBI and MapInfo each hereby\n6\nwaives in advance any claims, including without limitation claims for breach of contract, in connection with any transaction between the parties\nunless and until the parties shall have entered into a definitive agreement. PBI and MapInfo each also agrees that unless and until a definitive\nagreement regarding a transaction between the parties has been executed and delivered, the other party will not be under any legal obligation of any\nkind whatsoever with respect to such a transaction by virtue of this Agreement or any other written or oral communication with respect to such\ntransaction, except for the matters specifically agreed to herein.\n(c) PBI and MapInfo each reserves the right, in its sole discretion, to reject any and all proposals made by the other party with regard to a\ntransaction between the parties and to terminate discussions and negotiations with the other party at any time and for any reason or no reason. PBI\nunderstands that MapInfo and its Representatives shall be free to conduct any process for any transaction in such manner as they, in their sole\ndiscretion, shall determine (including without limitation negotiating with other parties and entering into a preliminary or definitive agreement\nwithout prior notice to PBI or any other person), and that any procedures relating to such process or transaction may be changed at any time without\nnotice to PBI or any other person.\n10. Contacts and Communications.\nFor a period of eighteen (18) months from the Effective Date: (a) PBI agrees that all contacts or communications by it or its Representatives\nwith MapInfo regarding a possible Transaction or the Evaluation Material, all requests for additional information, facility tours or management\nmeetings, and all discussions or questions regarding procedures with respect to a possible Transaction, will be submitted or directed only (i) to\nJefferies Broadview or (ii) as MapInfo shall otherwise instruct in writing, and (b) without the express prior consent of MapInfo, PBI agrees that it\nwill not, directly or indirectly, contact or communicate with any officer, employee, director, stockholder, agent, customer or business partner of\nDisclosing Party regarding Evaluation Material or a possible Transaction.\n11. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to\nthe conflicts of law principles thereof.\n(b) PBI and MapInfo each recognizes and acknowledges the competitive value and confidential nature of the Evaluation Material and\nthat irreparable damage may result to the other party if information contained therein or derived therefrom is disclosed to any person except as herein\nprovided or is used for any purpose other than the evaluation, negotiation and implementation of a possible Transaction. PBI and MapInfo each\nfurther understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by it or any of its\nRepresentatives, and that the other party may be entitled to equitable relief, including without limitation injunctive relief and specific performance,\nas a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement,\n7\nbut shall be in addition to all of a party’s other remedies available at law or in equity. In the event of litigation relating to this Agreement, if a court of\ncompetent jurisdiction determines in a final, nonappealable order that Receiving Party has breached this Agreement, then Receiving Party shall be\nliable for and pay to Disclosing Party the reasonable legal fees and disbursements that Disclosing Party has incurred in connection with such\nlitigation, including without limitation any appeal therefrom.\n(c) This Agreement may not be assigned in whole or in part by either party without the prior written consent of the other party; provided,\nhowever, that no such consent shall be required, and this Agreement may be assigned by a party, in the case of a sale by such party of all or\nsubstantially all of its business or assets, whether by merger, sale of assets or otherwise. Subject to the foregoing, this Agreement shall be binding\nupon and inure to the benefit of the parties and their respective successors and assigns.\n(d) This Agreement contains the entire agreement between the parties concerning the subject matter hereof. No provision of this\nAgreement may be waived or amended except by the express written consent of the parties. No failure or delay in exercising any right, power or\nprivilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or\nthe exercise of any other right, power or privilege hereunder.\n(e) All notices and other communications hereunder shall be in writing. Any notice or other communication hereunder shall be deemed\nduly delivered one (1) business day after it is sent for next-business-day delivery via a reputable nationwide overnight courier service, in each case to\nthe intended recipient as set forth below:\nIf to MapInfo:\nMapInfo Corporation\nOne Global View\nTroy, NY 12866\nAttention: General Counsel\nWith a copy to:\nWilmer Cutler Pickering Hale and Dorr LLP\n60 State Street\nBoston, MA -02109\nAttention: David A. Westenberg, Esq.\nIf to Receiving Party:\nPitney Bowes Inc.\n1 Elmcroft Road\nStamford, Connecticut 06926\nAttention: David Kleinman, Vice President, Corporate Development\n8\nWith a copy to:\nPitney Bowes Inc.\n1 Elmcroft Road\nStamford, Connecticut 06926\nAttention: Vice President, Law – Mergers and Acquisitions\nEither party may give any notice or other communication hereunder using any other means (including personal delivery, expedited courier,\nmessenger service, telecopy, ordinary mail or electronic mail), but no such notice or other communication shall be deemed duly given unless and\nuntil the party for whom it is intended actually receives it. Any party may change the address to which notices and other communications hereunder\nare to be delivered by giving the other party notice in the manner herein set forth.\n(f) For the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed\nto be an original, and both of which taken together, shall constitute one agreement binding on both parties.\n(g) The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or\ninterpretation of this Agreement.\n(h) Each Disclosing Party acknowledges that it is not acting as an advisor to the Receiving Party and will not receive any amount that\ncould be construed as a “minimum fee” within the meaning of United States Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the\nevent one party claims that the Transaction is a proprietary or exclusive transaction, then that party will confirm in writing to the other party that\nthere is no limitation on disclosure of the United States federal tax treatment or tax structure of the Transaction.\n[Remainder of page intentionally left blank]\n9\nExecuted as of the date first above written.\nMAPINFO CORPORATION\nBy: /s/ Jason W. Joseph\nTitle: General Counsel and Secretary\nPITNEY BOWES INC.\nBy: /s/ David Kleinman\nTitle: Vice President, Corporate Development\n[Signature page to Confidentiality Agreement]\n10
+d73afdb784cb0d78e49f9eb7f8217a05.pdf	effective_date jurisdiction party term	EX-99.(D)(4) 8 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nEURAND N.V.\nOLYMPIC PLAZA\nFRED. ROESKESTRAAT 123\n1076 EE AMSTERDAM, THE NETHERLANDS\nJuly 13, 2010\nCONFIDENTIAL\nTPG Capital, L.P.\nAttn: Ronald Cami\n301 Commerce Street\nSuite 3300\nFort Worth, TX 76102\nAxcan Pharma Inc.\nAttn: Richard Tarte\n597 Laurier Boulevard\nMont-Saint-Hilaire, Quebec J3H 6C4\nCanada\nLadies and Gentlemen:\nIn connection with TPG Capital, L.P. (“TPG”) and Axcan Pharma Inc. (“Axcan”) (Axcan and TPG collectively, “you” or “your”) considering a\npossible negotiated tender offer/merger or acquisition of, or similar negotiated transaction (a “transaction”) with, Eurand N.V. (the “Company”)\nand/or its affiliates, you have requested, and the Company is prepared to make available to you, certain information concerning its business,\noperations, assets and liabilities. As a condition to such information being furnished to you and your affiliates, and your and their respective\ndirectors, officers, employees, commercial banking institutions of recognized standing as potential sources of debt financing, agents, or advisors\n(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, “Representatives”), you agree to\ntreat any information concerning the Company (whether prepared by the Company, its advisors or otherwise and irrespective of the form of\ncommunication) which has been or is furnished to you or to your Representatives by or on behalf of the Company in relation to the potential\ntransaction (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or\nabstain from taking certain other actions hereinafter set forth.\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 2\nThe term “Evaluation Material” shall be deemed to include any notes, analyses, reports, compilations, studies, interpretations, memoranda or\nother documents (regardless of the form thereof) prepared by you or your Representatives which contain, reflect or are based upon, in whole or in\npart, any information furnished to you or your Representatives pursuant hereto. The term “Evaluation Material” does not include information which\n(i) is or becomes generally available to the public other than as a result of a disclosure directly or indirectly by you or your Representatives in\nviolation of this letter agreement; (ii) was within your possession or the possession of any of your Representatives prior to it being furnished to you\nby or on behalf of the Company pursuant hereto, provided that such information is not known by you to be subject to another confidentiality\nagreement with or other contractual obligation of confidentiality to the Company with respect to such information; (iii) becomes available to you or\nany of your Representatives on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such\nsource is not known by you to be bound by a confidentiality agreement with or other contractual obligation of confidentiality to the Company with\nrespect to such information; or (iv) is independently developed by you or your Representatives without reference to or reliance on any of the\nEvaluation Material, as evidenced by written evidence of the same.\nYou hereby agree that (i) you and your Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible\ntransaction between the Company and you, (ii) the Evaluation Material will be kept confidential and (iii) you and your Representatives will not\ndisclose any of the Evaluation Material in any manner whatsoever; provided, however, that (x) you may make any disclosure of such information to\nwhich the Company gives its prior written consent; and (y) any of such information may be disclosed to your Representatives who need to know\nsuch information for the sole purpose of evaluating a possible transaction with the Company, provided that each such Representative agrees to treat\nsuch information as confidential in accordance with the terms of this letter agreement. For the avoidance of doubt, TPG and Axcan acknowledge that\nAxcan and the Company enjoy a long-standing and valued commercial relationship based on formalized contractual arrangements, and accordingly\nyou further agree that you and your Representatives shall not use the Evaluation Material (a) in connection with the negotiating or re-negotiating of\nany of the commercial terms of any agreement or arrangement between Axcan and the Company, or (b) in connection with any actions, suits,\nproceedings or claims relating to any commercial agreements or arrangements between Axcan and the Company. For the avoidance of doubt,\n“Evaluation Material” shall not include information furnished or to be furnished by or on behalf of the Company in relation to activities covered by\nsuch contractual arrangements, which information shall remain subject to the confidentiality obligations under said contractual arrangements. You\nshall be responsible for any breach by your Representatives of the terms of this letter agreement that are applicable to your Representatives, and you\nagree, at your sole expense, to take commercially reasonable measures to restrain your Representatives from prohibited or unauthorized disclosure or\nuse of the Evaluation Material in breach of this letter agreement. As a further condition to such Evaluation Material being furnished to any\ncommercial banking institution of recognized standing as a potential source of debt financing, such banking institution shall, prior to receiving such\nEvaluation Material, execute a written agreement with TPG and/or Axcan agreeing to be bound by the terms of this letter agreement that are\napplicable to your Representatives.\n-2-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 3\nIn addition, except as otherwise required by applicable law, regulation or legal process the parties agree that, without the prior written consent\nof the other party or as otherwise permitted by this letter agreement, the parties and their Representatives will not disclose to any other person the\nexistence of this letter agreement, the fact that the Evaluation Material has been made available to you, that discussions or negotiations are taking\nplace concerning a possible transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the\nstatus thereof). Without limiting the generality of the foregoing, you further agree that, without the prior written consent of the Company, you will\nnot, directly or indirectly, enter into any agreement, arrangement or understanding (other than with your Representatives in their capacities as such),\nor any discussions which might lead to such agreement, arrangement or understanding (other than with your Representatives in their capacities as\nsuch), with any person regarding a possible transaction involving the Company (except in respect of any possible financing of such transaction). The\nterm “person” as used in this letter agreement shall be broadly interpreted to include the media and any governmental representative or authority,\ncorporation, company, partnership, joint venture, group, limited liability company, other entity or individual. Notwithstanding the foregoing, the\nCompany may disclose the fact that it is pursuing strategic alternatives; provided, however, that, except to the extent required by applicable law,\nregulation or legal process (including the rules of applicable stock exchanges), the Company will not, without your prior written consent, identify\nyou by name or identifiable description as being involved in discussions or negotiations concerning the transaction contemplated herein to any\nperson other than directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and\nfinancial advisors) of the Company who reasonably require access to such information in connection with such transaction.\nIn the event that you or any of your Representatives are requested or required (by any applicable law or regulation or pursuant to legal process\nsuch as oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other\nsimilar process) to disclose any of the Evaluation Material or the existence of this letter agreement, you shall provide the Company with prompt\nwritten notice, to the extent legally permissible, of any such request or requirement and the Company may seek a protective order or other\nappropriate remedy and/or waive compliance with the provisions of this letter agreement. If you or any of your Representatives are on the advice of\ncounsel, legally required to disclose Evaluation Material, you or your Representatives may, without liability hereunder, disclose to such tribunal or\nother entity only that portion of the Evaluation Material which such counsel advises you is legally required to be disclosed, provided that you\nexercise commercially reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably\ncooperating with the Company to request an appropriate protective order or other reliable assurance that confidential treatment will be accorded the\nEvaluation Material.\nIf you decide that you do not wish to proceed with a transaction with the Company, you will promptly inform the Company of that decision. At\nany time upon the written request of the Company for any reason, you will promptly (and in no event later than five business days after such request)\ndeliver to the Company or destroy all written Evaluation Material (and all copies\n-3-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 4\nthereof) furnished to you or your Representatives by or on behalf of the Company pursuant hereto and you and your Representatives shall not retain\nany copies, extracts or other reproductions in whole or in part of such material. In the event of such a request, all Evaluation Material prepared by\nyou or your Representatives shall be destroyed and no copy thereof (including that stored in any computer or similar device) shall be retained.\nNotwithstanding the foregoing, you and your Representatives (i) may each retain one (1) copy of the Evaluation Material to the extent that such\nretention is required to demonstrate compliance with applicable law, rule, regulation or professional standards (as applicable to attorneys and\naccountants), or to comply with a bona fide document retention policy, provided, however, that any such information so retained shall be segregated\nto your or your Representatives’, as the case may be, legal department or internal compliance department and held in compliance with the terms of\nthis Agreement and (ii) shall, to the extent that (i) above is inapplicable to Evaluation Material that is electronically stored, destroy such\nelectronically stored Evaluation Material only to the extent that it is reasonably practical to do so. Upon the Company’s written request, you shall\nconfirm in writing your compliance with the terms of this paragraph. Notwithstanding the return or destruction of the Evaluation Material, you and\nyour Representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder in accordance with the terms\nhereof.\nYou understand and acknowledge that neither the Company nor any of its Representatives (including, without limitation, any investment bank\nthat the Company informs you is acting as its representative in connection with the possible transaction (“IBANK”)), or any of their respective\ndirectors, officers, stockholders, partners, owners, employees, affiliates or agents make any representation or warranty, express or implied, as to the\naccuracy or completeness of the Evaluation Material. You agree that neither the Company nor any of its Representatives (including, without\nlimitation, IBANK), or any of their respective directors, officers, stockholders, partners, owners, employees, affiliates or agents shall have any\nliability to you or to any of your Representatives or any other person relating to or resulting from the use of the Evaluation Material or any errors\ntherein or omissions therefrom. Only those representations or warranties which are made in a written agreement regarding any transactions\ncontemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, you and we understand and agree that we\nand you have a commonality of interest with respect to such matters and it is our and your desire, intention and mutual understanding that the sharing\nof such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under\nthe attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the\nattorney-client privilege, work product doctrine and other applicable privilege shall remain entitled to such protection under these privileges, this\nletter agreement, and under the joint defense doctrine.\nIn addition, you hereby acknowledge that you are aware (and that prior to their receipt of any Evaluation Material your Representatives who\nare apprised of a possible transaction have\n-4-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 5\nbeen or will be advised) that the United States and other applicable securities laws generally prohibit any person who has material, non-public\ninformation about a company obtained directly or indirectly from that company from purchasing or selling securities of such company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor sell such securities.\nYou agree that all communications regarding a possible transaction regarding the Company, all requests for additional information, facility\ntours or management meetings and all discussions or questions regarding procedures with respect to a possible transaction, will be submitted or\ndirected to Gearoid Faherty or such other person or persons as may designated by the Company in writing. Without the express prior consent of the\nCompany, you agree that you will not, directly or indirectly, contact or communicate with any person known by you to be an officer, employee or\nagent of the Company.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of 12 months from the date hereof,\nneither you nor any of your affiliates will solicit to employ, (i) any of the officers of the Company or (ii) any of the other employees of the Company\nwith whom you have come into contact during the course of due diligence, in each case so long as they are employed by the Company, without\nobtaining the prior written consent of the Company; provided that the placement of general advertisements (including, without limitation, any\nrecruitment efforts conducted by any recruitment agency, provided that neither you nor such of your affiliates have directed such recruitment efforts\nat such person) shall not constitute a breach of this provision.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, during the period commencing on the date of this\nletter agreement and ending on the 18 month anniversary of the date of this letter agreement, neither you nor any of your Representatives shall,\nwithout the prior written consent of an authorized officer of the Company or its board of directors:\n(a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any Voting Securities or direct or indirect\nrights to acquire any Voting Securities of the Company or any subsidiary thereof, or any assets of the Company or any subsidiary or division thereof\n(provided, however, that the foregoing shall not be understood to limit your ability to propose or enter into other ordinary course commercial\ntransactions with the Company, including licensing, marketing, production and similar arrangements, that do not involve a sale, transfer or license\n(other than a limited license) of all or any substantial portion of the stock, assets or business of the Company or its subsidiaries);\n(b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of the\nSecurities and Exchange Commission (the “SEC”)), or seek to advise or influence any person or entity with respect to the voting of, any Voting\nSecurities of the Company;\n-5-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 6\n(c) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary\ntransaction involving the Company or any of its securities or assets;\n(d) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in\nconnection with any of the foregoing;\n(e) otherwise act or seek to control or influence the management, board of directors or policies of the Company; or\n(f) take any action that could reasonably be expected to require the Company to make a public announcement regarding the possibility of any\nof the events described in clauses (a) through (e) above.\nFor purposes of this letter agreement, “Voting Securities” shall mean, at any time, shares of any class of capital stock of the Company which\nare then entitled to vote generally in the election of directors; provided, that for purposes of this definition any securities which at such time are\nconvertible or exchangeable into or exercisable for shares of common stock of the Company shall be deemed to have been so converted, exchanged\nor exercised. For the avoidance of doubt, “Voting Securities” does not include any debt securities of the Company or its affiliates, and nothing in this\nletter agreement shall prohibit you or any of your Representatives from purchasing any such debt securities.\nEach party hereto understands and agrees that no contract or agreement providing for any transaction involving the Company shall be deemed\nto exist between you and the Company unless and until a final definitive agreement has been executed and delivered, and each party hereby waives,\nin advance, any claims (including, without limitation, claims for breach of contract) in connection with any transaction involving the Company\nunless and until you and the Company shall have entered into a final definitive agreement. You and the Company also agree that unless and until a\nfinal definitive agreement regarding a transaction between the Company and you has been executed and delivered, neither the Company nor you will\nbe under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement or any other written or oral\nexpression with respect to such transaction, except for the matters specifically agreed to herein or therein. You further acknowledge and agree that\nthe Company reserves the right, in its sole discretion, to reject any and all proposals made by you or any of your Representatives with regard to a\ntransaction between the Company and you, and to terminate discussions and negotiations with you at any time and for any reason or no reason. You\nfurther understand that (i) the Company and its Representatives shall be free to conduct any process for any transaction involving the Company, if\nand as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a\npreliminary or definitive agreement without prior notice to you or any other person); and (ii) any procedures relating to such process or transaction\nmay be changed at any time without notice to you or any other person. Each party hereto further understands that it shall not have any claims\nwhatsoever against the other party, its Representatives or any of their respective directors, officers, stockholders, owners, partners, employees,\naffiliates or agents arising out of or relating to a transaction involving the Company (other than those as against the\n-6-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 7\nparties to a final definitive agreement with you in accordance with the terms thereof) nor, unless a final definitive agreement is entered into with you,\nagainst any third party with whom a transaction is entered into. Neither this paragraph nor any other provision in this letter agreement can be waived\nor amended except by written consent of both parties, which consent shall specifically refer to this paragraph (or such provision) and explicitly make\nsuch waiver or amendment. For the purposes of this paragraph, the term “definitive agreement” shall not include an executed letter of intent or any\nother preliminary written agreement, nor does it include any written or verbal acceptance by the Company of any offer or bid on your part.\nNotwithstanding the foregoing, nothing in this paragraph shall limit the rights or obligations of either party under this letter agreement.\nIt is understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor privilege hereunder.\nYou acknowledge and agree that the Company has not granted you any license, copyright or similar right with respect to any of the Evaluation\nMaterial.\nYou recognize and acknowledge the competitive value and confidential nature of the Evaluation Material and that irreparable damage will\nresult to the Company if information contained therein or derived therefrom is disclosed to any third party except as herein provided or is used for\nany purpose other than the evaluation of a possible negotiated transaction with the Company. It is further understood and agreed that money damages\nwould not be a sufficient remedy for any breach of this letter agreement by you or any of your Representatives and that the Company shall be\nentitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed\nto be the exclusive remedies for a breach by you of this letter agreement but shall be in addition to all other remedies available at law or equity to the\nCompany. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, nonappealable order\nthat a party has breached this letter agreement, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees\nand disbursements incurred by prevailing party in connection with such litigation, including any appeal therefrom.\nThis letter agreement is for the benefit of each party hereto, and shall be governed by and construed in accordance with the laws of the State of\nNew York, without giving effect to the principles of conflicts of law thereof. Each party hereby irrevocably and unconditionally consents to submit\nto the exclusive jurisdiction of the courts of the State of New York and the United States of America located in the State of New York for any\nactions, suits or proceedings arising out of or relating to this letter agreement and the transactions contemplated hereby (and agrees not to commence\nany action, suit or proceeding relating thereto except in such courts), and each party further agrees that service of any process, summons, notice or\ndocument by Federal Express, DHL, UPS, Airborne or any other recognized international courier service to its respective address set forth in this\nletter agreement shall be effective service of process for any action, suit or proceeding brought against such party in any such court. Each party\nhereto hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\n-7-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 8\nproceeding arising out of this letter agreement or the transactions contemplated hereby, in the courts of the State of New York or the United States of\nAmerica located in the State of New York, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such\ncourt that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\nThe rights of the Company under this letter agreement may be assigned in whole or in part to any purchaser of the Company, which purchaser\nshall be entitled to enforce this letter agreement to the same extent and in the same manner as the Company is entitled to enforce this letter\nagreement. You may not assign your rights or obligations under this letter agreement to any person or entity without the prior written consent of the\nCompany. Subject to the foregoing, this letter agreement shall be binding on the respective successors and permitted assigns of the parties hereto.\nThe letter agreement contains the entire agreement between you and the Company concerning the subject matter hereof, and no modification\nof this letter agreement or waiver of the terms and conditions hereof will be binding unless approved in writing by you and the Company.\nThis letter agreement shall expire 24 months from the date hereof.\nFor the convenience of the parties, this letter agreement may be executed by facsimile and in counterparts, each of which shall be deemed to be\nan original, and both of which taken together, shall constitute one agreement binding on both parties.\n[Remainder of Page Intentionally Left Blank; Signature Page to Follow]\n-8-\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nEurand N.V.\nBy: /s/ Gearóid Faherty\nName: Gearóid Faherty\nTitle: Chief Executive Officer\nAccepted and agreed as of the date first written above:\nTPG Capital, L.P.\nBy: TPG Capital Advisors, LLC\nBy: /s/ Ronald Cami\nName: Ronald Cami\nTitle: Vice President\nAxcan Pharma Inc.\nBy: /s/ Richard Tarte\nName: Richard Tarte\nTitle: General Counsel	EX-99.(D)(4) 8 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nEURAND N.V.\nOLYMPIC PLAZA\nFRED. ROESKESTRAAT 123\n1076 EE AMSTERDAM, THE NETHERLANDS\nJuly 13, 2010\nCONFIDENTIAL\nTPG Capital, L.P.\nAttn: Ronald Cami\n301 Commerce Street\nSuite 3300\nFort Worth, TX 76102\nAxcan Pharma Inc.\nAttn: Richard Tarte\n597 Laurier Boulevard\nMont-Saint-Hilaire, Quebec J3H 6C4\nCanada\nLadies and Gentlemen:\nIn connection with TPG Capital, L.P. (“IPG”) and Axcan Pharma Inc. (“Axcan”) (Axcan and TPG collectively, “you” or “your”) considering a\npossible negotiated tender offer/merger or acquisition of, or similar negotiated transaction (a “transaction”) with, Eurand N.V. (the “Company”)\nand/or its affiliates, you have requested, and the Company is prepared to make available to you, certain information concerning its business,\noperations, assets and liabilities. As a condition to such information being furnished to you and your affiliates, and your and their respective\ndirectors, officers, employees, commercial banking institutions of recognized standing as potential sources of debt financing, agents, or advisors\n(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, “Representatives”), you agree to\ntreat any information concerning the Company (whether prepared by the Company, its advisors or otherwise and irrespective of the form of\ncommunication) which has been or is furnished to you or to your Representatives by or on behalf of the Company in relation to the potential\ntransaction (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or\nabstain from taking certain other actions hereinafter set forth.\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 2\nThe term “Evaluation Material” shall be deemed to include any notes, analyses, reports, compilations, studies, interpretations, memoranda or\nother documents (regardless of the form thereof) prepared by you or your Representatives which contain, reflect or are based upon, in whole or in\npart, any information furnished to you or your Representatives pursuant hereto. The term “Evaluation Material” does not include information which\n(i) is or becomes generally available to the public other than as a result of a disclosure directly or indirectly by you or your Representatives in\nviolation of this letter agreement; (i) was within your possession or the possession of any of your Representatives prior to it being furnished to you\nby or on behalf of the Company pursuant hereto, provided that such information is not known by you to be subject to another confidentiality\nagreement with or other contractual obligation of confidentiality to the Company with respect to such information; (iii) becomes available to you or\nany of your Representatives on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such\nsource is not known by you to be bound by a confidentiality agreement with or other contractual obligation of confidentiality to the Company with\nrespect to such information; or (iv) is independently developed by you or your Representatives without reference to or reliance on any of the\nEvaluation Material, as evidenced by written evidence of the same.\nYou hereby agree that (i) you and your Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible\ntransaction between the Company and you, (ii) the Evaluation Material will be kept confidential and (iii) you and your Representatives will not\ndisclose any of the Evaluation Material in any manner whatsoever; provided, however, that (x) you may make any disclosure of such information to\nwhich the Company gives its prior written consent; and (y) any of such information may be disclosed to your Representatives who need to know\nsuch information for the sole purpose of evaluating a possible transaction with the Company, provided that each such Representative agrees to treat\nsuch information as confidential in accordance with the terms of this letter agreement. For the avoidance of doubt, TPG and Axcan acknowledge that\nAxcan and the Company enjoy a long-standing and valued commercial relationship based on formalized contractual arrangements, and accordingly\nyou further agree that you and your Representatives shall not use the Evaluation Material (a) in connection with the negotiating or re-negotiating of\nany of the commercial terms of any agreement or arrangement between Axcan and the Company, or (b) in connection with any actions, suits,\nproceedings or claims relating to any commercial agreements or arrangements between Axcan and the Company. For the avoidance of doubt,\n“Evaluation Material” shall not include information furnished or to be furnished by or on behalf of the Company in relation to activities covered by\nsuch contractual arrangements, which information shall remain subject to the confidentiality obligations under said contractual arrangements. You\nshall be responsible for any breach by your Representatives of the terms of this letter agreement that are applicable to your Representatives, and you\nagree, at your sole expense, to take commercially reasonable measures to restrain your Representatives from prohibited or unauthorized disclosure or\nuse of the Evaluation Material in breach of this letter agreement. As a further condition to such Evaluation Material being furnished to any\ncommercial banking institution of recognized standing as a potential source of debt financing, such banking institution shall, prior to receiving such\nEvaluation Material, execute a written agreement with TPG and/or Axcan agreeing to be bound by the terms of this letter agreement that are\napplicable to your Representatives.\n_2-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 3\nIn addition, except as otherwise required by applicable law, regulation or legal process the parties agree that, without the prior written consent\nof the other party or as otherwise permitted by this letter agreement, the parties and their Representatives will not disclose to any other person the\nexistence of this letter agreement, the fact that the Evaluation Material has been made available to you, that discussions or negotiations are taking\nplace concerning a possible transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the\nstatus thereof). Without limiting the generality of the foregoing, you further agree that, without the prior written consent of the Company, you will\nnot, directly or indirectly, enter into any agreement, arrangement or understanding (other than with your Representatives in their capacities as such),\nor any discussions which might lead to such agreement, arrangement or understanding (other than with your Representatives in their capacities as\nsuch), with any person regarding a possible transaction involving the Company (except in respect of any possible financing of such transaction). The\nterm “person” as used in this letter agreement shall be broadly interpreted to include the media and any governmental representative or authority,\ncorporation, company, partnership, joint venture, group, limited liability company, other entity or individual. Notwithstanding the foregoing, the\nCompany may disclose the fact that it is pursuing strategic alternatives; provided, however, that, except to the extent required by applicable law,\nregulation or legal process (including the rules of applicable stock exchanges), the Company will not, without your prior written consent, identify\nyou by name or identifiable description as being involved in discussions or negotiations concerning the transaction contemplated herein to any\nperson other than directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and\nfinancial advisors) of the Company who reasonably require access to such information in connection with such transaction.\nIn the event that you or any of your Representatives are requested or required (by any applicable law or regulation or pursuant to legal process\nsuch as oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other\nsimilar process) to disclose any of the Evaluation Material or the existence of this letter agreement, you shall provide the Company with prompt\nwritten notice, to the extent legally permissible, of any such request or requirement and the Company may seek a protective order or other\nappropriate remedy and/or waive compliance with the provisions of this letter agreement. If you or any of your Representatives are on the advice of\ncounsel, legally required to disclose Evaluation Material, you or your Representatives may, without liability hereunder, disclose to such tribunal or\nother entity only that portion of the Evaluation Material which such counsel advises you is legally required to be disclosed, provided that you\nexercise commercially reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably\ncooperating with the Company to request an appropriate protective order or other reliable assurance that confidential treatment will be accorded the\nEvaluation Material.\nIf you decide that you do not wish to proceed with a transaction with the Company, you will promptly inform the Company of that decision. At\nany time upon the written request of the Company for any reason, you will promptly (and in no event later than five business days after such request)\ndeliver to the Company or destroy all written Evaluation Material (and all copies\n_3-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 4\nthereof) furnished to you or your Representatives by or on behalf of the Company pursuant hereto and you and your Representatives shall not retain\nany copies, extracts or other reproductions in whole or in part of such material. In the event of such a request, all Evaluation Material prepared by\nyou or your Representatives shall be destroyed and no copy thereof (including that stored in any computer or similar device) shall be retained.\nNotwithstanding the foregoing, you and your Representatives (i) may each retain one (1) copy of the Evaluation Material to the extent that such\nretention is required to demonstrate compliance with applicable law, rule, regulation or professional standards (as applicable to attorneys and\naccountants), or to comply with a bona fide document retention policy, provided, however, that any such information so retained shall be segregated\nto your or your Representatives’, as the case may be, legal department or internal compliance department and held in compliance with the terms of\nthis Agreement and (ii) shall, to the extent that (i) above is inapplicable to Evaluation Material that is electronically stored, destroy such\nelectronically stored Evaluation Material only to the extent that it is reasonably practical to do so. Upon the Company’s written request, you shall\nconfirm in writing your compliance with the terms of this paragraph. Notwithstanding the return or destruction of the Evaluation Material, you and\nyour Representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder in accordance with the terms\nhereof.\nYou understand and acknowledge that neither the Company nor any of its Representatives (including, without limitation, any investment bank\nthat the Company informs you is acting as its representative in connection with the possible transaction (“IBANK?™)), or any of their respective\ndirectors, officers, stockholders, partners, owners, employees, affiliates or agents make any representation or warranty, express or implied, as to the\naccuracy or completeness of the Evaluation Material. You agree that neither the Company nor any of its Representatives (including, without\nlimitation, IBANK), or any of their respective directors, officers, stockholders, partners, owners, employees, affiliates or agents shall have any\nliability to you or to any of your Representatives or any other person relating to or resulting from the use of the Evaluation Material or any errors\ntherein or omissions therefrom. Only those representations or warranties which are made in a written agreement regarding any transactions\ncontemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, you and we understand and agree that we\nand you have a commonality of interest with respect to such matters and it is our and your desire, intention and mutual understanding that the sharing\nof such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under\nthe attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the\nattorney-client privilege, work product doctrine and other applicable privilege shall remain entitled to such protection under these privileges, this\nletter agreement, and under the joint defense doctrine.\nIn addition, you hereby acknowledge that you are aware (and that prior to their receipt of any Evaluation Material your Representatives who\nare apprised of a possible transaction have\n_4-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 5\nbeen or will be advised) that the United States and other applicable securities laws generally prohibit any person who has material, non-public\ninformation about a company obtained directly or indirectly from that company from purchasing or selling securities of such company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor sell such securities.\nYou agree that all communications regarding a possible transaction regarding the Company, all requests for additional information, facility\ntours or management meetings and all discussions or questions regarding procedures with respect to a possible transaction, will be submitted or\ndirected to Gearoid Faherty or such other person or persons as may designated by the Company in writing. Without the express prior consent of the\nCompany, you agree that you will not, directly or indirectly, contact or communicate with any person known by you to be an officer, employee or\nagent of the Company.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of 12 months from the date hereof,\nneither you nor any of your affiliates will solicit to employ, (i) any of the officers of the Company or (ii) any of the other employees of the Company\nwith whom you have come into contact during the course of due diligence, in each case so long as they are employed by the Company, without\nobtaining the prior written consent of the Company; provided that the placement of general advertisements (including, without limitation, any\nrecruitment efforts conducted by any recruitment agency, provided that neither you nor such of your affiliates have directed such recruitment efforts\nat such person) shall not constitute a breach of this provision.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, during the period commencing on the date of this\nletter agreement and ending on the 18 month anniversary of the date of this letter agreement, neither you nor any of your Representatives shall,\nwithout the prior written consent of an authorized officer of the Company or its board of directors:\n(a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any Voting Securities or direct or indirect\nrights to acquire any Voting Securities of the Company or any subsidiary thereof, or any assets of the Company or any subsidiary or division thereof\n(provided, however, that the foregoing shall not be understood to limit your ability to propose or enter into other ordinary course commercial\ntransactions with the Company, including licensing, marketing, production and similar arrangements, that do not involve a sale, transfer or license\n(other than a limited license) of all or any substantial portion of the stock, assets or business of the Company or its subsidiaries);\n(b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of the\nSecurities and Exchange Commission (the “SEC™)), or seek to advise or influence any person or entity with respect to the voting of, any Voting\nSecurities of the Company;\n_5.\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 6\n(c) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary\ntransaction involving the Company or any of its securities or assets;\n(d) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in\nconnection with any of the foregoing;\n(e) otherwise act or seek to control or influence the management, board of directors or policies of the Company; or\n(f) take any action that could reasonably be expected to require the Company to make a public announcement regarding the possibility of any\nof the events described in clauses (a) through (e) above.\nFor purposes of this letter agreement, “Voting Securities” shall mean, at any time, shares of any class of capital stock of the Company which\nare then entitled to vote generally in the election of directors; provided, that for purposes of this definition any securities which at such time are\nconvertible or exchangeable into or exercisable for shares of common stock of the Company shall be deemed to have been so converted, exchanged\nor exercised. For the avoidance of doubt, “Voting Securities” does not include any debt securities of the Company or its affiliates, and nothing in this\nletter agreement shall prohibit you or any of your Representatives from purchasing any such debt securities.\nEach party hereto understands and agrees that no contract or agreement providing for any transaction involving the Company shall be deemed\nto exist between you and the Company unless and until a final definitive agreement has been executed and delivered, and each party hereby waives,\nin advance, any claims (including, without limitation, claims for breach of contract) in connection with any transaction involving the Company\nunless and until you and the Company shall have entered into a final definitive agreement. You and the Company also agree that unless and until a\nfinal definitive agreement regarding a transaction between the Company and you has been executed and delivered, neither the Company nor you will\nbe under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement or any other written or oral\nexpression with respect to such transaction, except for the matters specifically agreed to herein or therein. You further acknowledge and agree that\nthe Company reserves the right, in its sole discretion, to reject any and all proposals made by you or any of your Representatives with regard to a\ntransaction between the Company and you, and to terminate discussions and negotiations with you at any time and for any reason or no reason. You\nfurther understand that (i) the Company and its Representatives shall be free to conduct any process for any transaction involving the Company, if\nand as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a\npreliminary or definitive agreement without prior notice to you or any other person); and (ii) any procedures relating to such process or transaction\nmay be changed at any time without notice to you or any other person. Each party hereto further understands that it shall not have any claims\nwhatsoever against the other party, its Representatives or any of their respective directors, officers, stockholders, owners, partners, employees,\naffiliates or agents arising out of or relating to a transaction involving the Company (other than those as against the\n-6-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 7\nparties to a final definitive agreement with you in accordance with the terms thereof) nor, unless a final definitive agreement is entered into with you,\nagainst any third party with whom a transaction is entered into. Neither this paragraph nor any other provision in this letter agreement can be waived\nor amended except by written consent of both parties, which consent shall specifically refer to this paragraph (or such provision) and explicitly make\nsuch waiver or amendment. For the purposes of this paragraph, the term “definitive agreement” shall not include an executed letter of intent or any\nother preliminary written agreement, nor does it include any written or verbal acceptance by the Company of any offer or bid on your part.\nNotwithstanding the foregoing, nothing in this paragraph shall limit the rights or obligations of either party under this letter agreement.\nIt is understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor privilege hereunder.\nYou acknowledge and agree that the Company has not granted you any license, copyright or similar right with respect to any of the Evaluation\nMaterial.\nYou recognize and acknowledge the competitive value and confidential nature of the Evaluation Material and that irreparable damage will\nresult to the Company if information contained therein or derived therefrom is disclosed to any third party except as herein provided or is used for\nany purpose other than the evaluation of a possible negotiated transaction with the Company. It is further understood and agreed that money damages\nwould not be a sufficient remedy for any breach of this letter agreement by you or any of your Representatives and that the Company shall be\nentitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed\nto be the exclusive remedies for a breach by you of this letter agreement but shall be in addition to all other remedies available at law or equity to the\nCompany. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, nonappealable order\nthat a party has breached this letter agreement, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees\nand disbursements incurred by prevailing party in connection with such litigation, including any appeal therefrom.\nThis letter agreement is for the benefit of each party hereto, and shall be governed by and construed in accordance with the laws of the State of\nNew York, without giving effect to the principles of conflicts of law thereof. Each party hereby irrevocably and unconditionally consents to submit\nto the exclusive jurisdiction of the courts of the State of New York and the United States of America located in the State of New York for any\nactions, suits or proceedings arising out of or relating to this letter agreement and the transactions contemplated hereby (and agrees not to commence\nany action, suit or proceeding relating thereto except in such courts), and each party further agrees that service of any process, summons, notice or\ndocument by Federal Express, DHL, UPS, Airborne or any other recognized international courier service to its respective address set forth in this\nletter agreement shall be effective service of process for any action, suit or proceeding brought against such party in any such court. Each party\nhereto hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\n_7-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 8\nproceeding arising out of this letter agreement or the transactions contemplated hereby, in the courts of the State of New York or the United States of\nAmerica located in the State of New York, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such\ncourt that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\nThe rights of the Company under this letter agreement may be assigned in whole or in part to any purchaser of the Company, which purchaser\nshall be entitled to enforce this letter agreement to the same extent and in the same manner as the Company is entitled to enforce this letter\nagreement. You may not assign your rights or obligations under this letter agreement to any person or entity without the prior written consent of the\nCompany. Subject to the foregoing, this letter agreement shall be binding on the respective successors and permitted assigns of the parties hereto.\nThe letter agreement contains the entire agreement between you and the Company concerning the subject matter hereof, and no modification\nof this letter agreement or waiver of the terms and conditions hereof will be binding unless approved in writing by you and the Company.\nThis letter agreement shall expire 24 months from the date hereof.\nFor the convenience of the parties, this letter agreement may be executed by facsimile and in counterparts, each of which shall be deemed to be\nan original, and both of which taken together, shall constitute one agreement binding on both parties.\n[Remainder of Page Intentionally Left Blank; Signature Page to Follow]\n-8-\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nEurand N. V.\nBy: /s/ Geardid Faherty\nName: Geardid Faherty\nTitle: Chief Executive Officer\nAccepted and agreed as of the date first written above:\nTPG Capital, L.P.\nBy: TPG Capital Advisors, LLC\nBy: /s/ Ronald Cami\nName: Ronald Cami\nTitle:  Vice President\nAxcan Pharma Inc.\nBy: /s/ Richard Tarte\nName: Richard Tarte\nTitle:  General Counsel	EX-99.(D)(4) 8 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nEURAND N.V.\nOLYMPIC PLAZA\nFRED. ROESKESTRAAT 123\n1076 EE AMSTERDAM, THE NETHERLANDS\nJuly 13, 2010\nCONFIDENTIAL\nTPG Capital, L.P.\nAttn: Ronald Cami\n301 Commerce Street\nSuite 3300\nFort Worth, TX 76102\nAxcan Pharma Inc.\nAttn: Richard Tarte\n597 Laurier Boulevard\nMont-Saint-Hilaire, Quebec J3H 6C4\nCanada\nLadies and Gentlemen:\nIn connection with TPG Capital, L.P. ("TPG") and Axcan Pharma Inc. ("Axcan") (Axcan and TPG collectively, "you" or "your") considering a\npossible negotiated tender offer/merger or acquisition of, or similar negotiated transaction (a "transaction") with, Eurand N.V. (the "Company")\nand/or its affiliates, you have requested, and the Company is prepared to make available to you, certain information concerning its business,\noperations, assets and liabilities. As a condition to such information being furnished to you and your affiliates, and your and their respective\ndirectors, officers, employees, commercial banking institutions of recognized standing as potentia sources of debt financing, agents, or advisors\n(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, "Representatives"), you agree\nto\ntreat any information concerning the Company (whether prepared by the Company, its advisors or otherwise and irrespective of the form of\ncommunication) which has been or is furnished to you or to your Representatives by or on behalf of the Company in relation to the potential\ntransaction (herein collectively referred to as the "Evaluation Material") in accordance with the provisions of this letter agreement, and to take or\nabstain from taking certain other actions hereinafter set forth.\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 2\nThe term "Evaluation Material" shall be deemed to include any notes, analyses, reports, compilations, studies, interpretations, memoranda or\nother documents (regardless of the form thereof) prepared by you or your Representatives which contain, reflect or are based upon, in whole or in\npart, any information furnished to you or your Representatives pursuant hereto. The term "Evaluation Material" does not include information which\n(i) is or becomes generally available to the public other than as a result of a disclosure directly or indirectly by you or your Representatives in\nviolation of this letter agreement; (ii) was within your possession or the possession of any of your Representatives prior to it being furnished to you\nby or on behalf of the Company pursuant hereto, provided that such information is not known by you to be subject to another confidentiality\nagreement with or other contractual obligation of confidentiality to the Company with respect to such information; (iii) becomes available to you or\nany of your Representatives on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such\nsource is not known by you to be bound by a confidentiality agreement with or other contractual obligation of confidentiality to the Company with\nrespect to such information; or (iv) is independently developed by you or your Representatives without reference to or reliance on any of the\nEvaluation Material, as evidenced by written evidence of the same.\nYou hereby agree that (i) you and your Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible\ntransaction between the Company and you, (ii) the Evaluation Material will be kept confidential and (iii) you and your Representatives will not\ndisclose any of the Evaluation Material in any manner whatsoever; provided, however, that (x) you may make any disclosure of such information\nto\nwhich the Company gives its prior written consent; and (y) any of such information may be disclosed to your Representatives who need to know\nsuch information for the sole purpose of evaluating a possible transaction with the Company, provided that each such Representative agrees to treat\nsuch information as confidential in accordance with the terms of this letter agreement. For the avoidance of doubt, TPG and Axcan acknowledge that\nAxcan and the Company enjoy a long-standing and valued commercial relationship based on formalized contractual arrangements, and accordingly\nyou further agree that you and your Representatives shall not use the Evaluation Material (a) in connection with the negotiating or re-negotiating\nof\nany of the commercial terms of any agreement or arrangement between Axcan and the Company, or (b) in connection with any actions, suits,\nproceedings or claims relating to any commercial agreements or arrangements between Axcan and the Company. For the avoidance of doubt,\n"Evaluation Material" shall not include information furnished or to be furnished by or on behalf of the Company in relation to activities covered by\nsuch contractual arrangements, which information shall remain subject to the confidentiality obligations under said contractual arrangements. You\nshall be responsible for any breach by your Representatives of the terms of this letter agreement that are applicable to your Representatives, and you\nagree, at your sole expense, to take commercially reasonable measures to restrain your Representatives from prohibited or unauthorized disclosure or\nuse of the Evaluation Material in breach of this letter agreement. As a further condition to such Evaluation Material being furnished to any\ncommercial banking institution of recognized standing as a potential source of debt financing, such banking institution shall, prior to receiving such\nEvaluation Material, execute a written agreement with TPG and/or Axcan agreeing to be bound by the terms of this letter agreement that are\napplicable to your Representatives.\n2\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 3\nIn addition, except as otherwise required by applicable law, regulation or legal process the parties agree that, without the prior written consent\nof\nthe other party or as otherwise permitted by this letter agreement, the parties and their Representatives will not disclose to any other person the\nexistence of this letter agreement, the fact that the Evaluation Material has been made available to you, that discussions or negotiations are taking\nplace concerning a possible transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the\nstatus thereof). Without limiting the generality of the foregoing, you further agree that, without the prior written consent of the Company, you will\nnot, directly or indirectly, enter into any agreement, arrangement or understanding (other than with your Representatives in their capacities as such),\nor\nany discussions which might lead to such agreement, arrangement or understanding (other than with your Representatives in their capacities as\nsuch), with any person regarding a possible transaction involving the Company (except in respect of any possible financing of such transaction). The\nterm "person" as used in this letter agreement shall be broadly interpreted to include the media and any governmental representative or authority,\ncorporation, company, partnership, joint venture, group, limited liability company, other entity or individual. Notwithstanding the foregoing, the\nCompany may disclose the fact that it is pursuing strategic alternatives; provided, however, that, except to the extent required by applicable law,\nregulation or legal process (including the rules of applicable stock exchanges), the Company will not, without your prior written consent, identify\nyou by name or identifiable description as being involved in discussions or negotiations concerning the transaction contemplated herein to any\nperson other than directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and\nfinancial advisors) of the Company who reasonably require access to such information in connection with such transaction.\nIn the event that you or any of your Representatives are requested or required (by any applicable law or regulation or pursuant to legal process\nsuch as oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other\nsimilar process) to disclose any of the Evaluation Material or the existence of this letter agreement, you shall provide the Company with prompt\nwritten notice, to the extent legally permissible, of any such request or requirement and the Company may seek a protective order or other\nappropriate remedy and/or waive compliance with the provisions of this letter agreement. If you or any of your Representatives are on the advice of\ncounsel, legally required to disclose Evaluation Material, you or your Representatives may, without liability hereunder, disclose to such tribunal or\nother entity only that portion of the Evaluation Material which such counsel advises you is legally required to be disclosed, provided that you\nexercise commercially reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably\ncooperating with the Company to request an appropriate protective order or other reliable assurance that confidential treatment will be accorded the\nEvaluation Material.\nIf you decide that you do not wish to proceed with a transaction with the Company, you will promptly inform the Company of that decision. At\nany time upon the written request of the Company for any reason, you will promptly (and in no event later than five business days after such request)\ndeliver to the Company or destroy all written Evaluation Material (and all copies\n3\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 4\nthereof) furnished to you or your Representatives by or on behalf of the Company pursuant hereto and you and your Representatives shall not\nretain\nany copies, extracts or other reproductions in whole or in part of such material. In the event of such a request, all Evaluation Material prepared by\nyou or your Representatives shall be destroyed and no copy thereof (including that stored in any computer or similar device) shall be retained.\nNotwithstanding the foregoing, you and your Representatives (i) may each retain one (1) copy of the Evaluation Material to the extent that such\nretention is required to demonstrate compliance with applicable law, rule, regulation or professional standards (as applicable to attorneys and\nto your or your Representatives', as the case may be, legal department or internal compliance department and held in compliance with the terms\naccountants), or to comply with a bona fide document retention policy, provided, however, that any such information so retained shall be segregated of\nthis Agreement and (ii) shall, to the extent that (i) above is inapplicable to Evaluation Material that is electronically stored, destroy such\nelectronically stored Evaluation Material only to the extent that it is reasonably practical to do so. Upon the Company's written request, you shall\nconfirm in writing your compliance with the terms of this paragraph. Notwithstanding the return or destruction of the Evaluation Material, you and\nyour Representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder in accordance with the terms\nhereof.\nYou understand and acknowledge that neither the Company nor any of its Representatives (including, without limitation, any investment bank\nthat the Company informs you is acting as its representative in connection with the possible transaction ("IBANK")), or any of their respective\ndirectors, officers, stockholders, partners, owners, employees, affiliates or agents make any representation or warranty, express or implied, as to the\naccuracy or completeness of the Evaluation Material. You agree that neither the Company nor any of its Representatives (including, without\nlimitation, IBANK), or any of their respective directors, officers, stockholders, partners, owners, employees, affiliates or agents shall have any\nliability to you or to any of your Representatives or any other person relating to or resulting from the use of the Evaluation Material or any errors\ntherein or omissions therefrom. Only those representations or warranties which are made in a written agreement regarding any transactions\ncontemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, you and we understand and agree that we\nand you have a commonality of interest with respect to such matters and it is our and your desire, intention and mutual understanding that the sharing\nof such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under\nthe attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the\nattorney-client privilege, work product doctrine and other applicable privilege shall remain entitled to such protection under these privileges, this\nletter agreement, and under the joint defense doctrine.\nIn addition, you hereby acknowledge that you are aware (and that prior to their receipt of any Evaluation Material your Representatives who\nare apprised of a possible transaction have\n4\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 5\nbeen or will be advised) that the United States and other applicable securities laws generally prohibit any person who has material, non-public\ninformation about a company obtained directly or indirectly from that company from purchasing or selling securities of such company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor sell such securities.\nYou agree that all communications regarding a possible transaction regarding the Company, all requests for additional information, facility\ntours or management meetings and all discussions or questions regarding procedures with respect to a possible transaction, will be submitted\nor\ndirected to Gearoid Faherty or such other person or persons as may designated by the Company in writing. Without the express prior consent of\nthe\nCompany, you agree that you will not, directly or indirectly, contact or communicate with any person known by you to be an officer, employee or\nagent of the Company.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of 12 months from the date hereof,\nneither you nor any of your affiliates will solicit to employ, (i) any of the officers of the Company or (ii) any of the other employees of the Company\nwith whom you have come into contact during the course of due diligence, in each case so long as they are employed by the Company, without\nobtaining the prior written consent of the Company; provided that the placement of general advertisements (including, without limitation, any\nrecruitment efforts conducted by any recruitment agency, provided that neither you nor such of your affiliates have directed such recruitment efforts\nat such person) shall not constitute a breach of this provision.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, during the period commencing on the date of this\nletter agreement and ending on the 18 month anniversary of the date of this letter agreement, neither you nor any of your Representatives shall,\nwithout the prior written consent of an authorized officer of the Company or its board of directors:\n(a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any Voting Securities or direct or indirect\nrights to acquire any Voting Securities of the Company or any subsidiary thereof, or any assets of the Company or any subsidiary or division thereof\n(provided, however, that the foregoing shall not be understood to limit your ability to propose or enter into other ordinary course commercial\ntransactions with the Company, including licensing, marketing, production and similar arrangements, that do not involve a sale, transfer or license\n(other than a limited license) of all or any substantial portion of the stock, assets or business of the Company or its subsidiaries);\n(b) make, or in any way participate, directly or indirectly, in any "solicitation" of "proxies" to vote (as such terms are used in the rules of the\nSecurities and Exchange Commission (the "SEC")), or seek to advise or influence any person or entity with respect to the voting of, any Voting\nSecurities of the Company;\n5\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 6\n(c) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary\ntransaction involving the Company or any of its securities or assets;\n(d) form, join or in any way participate in a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in\nconnection with any of the foregoing;\n(e) otherwise act or seek to control or influence the management, board of directors or policies of the Company;\nor\n(f) take any action that could reasonably be expected to require the Company to make a public announcement regarding the possibility of any\nof the events described in clauses (a) through (e) above.\nFor purposes of this letter agreement, "Voting Securities" shall mean, at any time, shares of any class of capital stock of the Company which\nare then entitled to vote generally in the election of directors; provided, that for purposes of this definition any securities which at such time are\nconvertible or exchangeable into or exercisable for shares of common stock of the Company shall be deemed to have been so converted, exchanged\nor\nexercised. For the avoidance of doubt, "Voting Securities" does not include any debt securities of the Company or its affiliates, and nothing in this\nletter agreement shall prohibit you or any of your Representatives from purchasing any such debt securities.\nEach party hereto understands and agrees that no contract or agreement providing for any transaction involving the Company shall be deemed\nto exist between you and the Company unless and until a final definitive agreement has been executed and delivered, and each party hereby waives,\nin advance, any claims (including, without limitation, claims for breach of contract) in connection with any transaction involving the Company\nunless and until you and the Company shall have entered into a final definitive agreement. You and the Company also agree that unless and until\na\nfinal definitive agreement regarding a transaction between the Company and you has been executed and delivered, neither the Company nor you will\nbe under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement or any other written or oral\nexpression with respect to such transaction, except for the matters specifically agreed to herein or therein. You further acknowledge and agree that\nthe Company reserves the right, in its sole discretion, to reject any and all proposals made by you or any of your Representatives with regard to a\ntransaction between the Company and you, and to terminate discussions and negotiations with you at any time and for any reason or no reason. You\nfurther understand that (i) the Company and its Representatives shall be free to conduct any process for any transaction involving the Company,\nif\nand as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a\npreliminary\nor\ndefinitive agreement without prior notice to you or any other person); and (ii) any procedures relating to such process or transaction\nmay be changed at any time without notice to you or any other person. Each party hereto further understands that it shall not have any claims\nwhatsoever against the other party, its Representatives or any of their respective directors, officers, stockholders, owners, partners, employees,\naffiliates or agents arising out of or relating to a transaction involving the Company (other than those as against the\n6\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 7\nparties to a final definitive agreement with you in accordance with the terms thereof) nor, unless a final definitive agreement is entered into with you,\nagainst any third party with whom a transaction is entered into. Neither this paragraph nor any other provision in this letter agreement\ncan\nbe\nwaived\nor amended except by written consent of both parties, which consent shall specifically refer to this paragraph (or such provision) and explicitly make\nsuch waiver or amendment. For the purposes of this paragraph, the term "definitive agreement" shall not include an executed letter of intent or any\nother\npreliminary written agreement, nor does it include any written or verbal acceptance by the Company of any offer or bid on your part.\nNotwithstanding the foregoing, nothing in this paragraph shall limit the rights or obligations of either party under this letter agreement.\nIt is understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor privilege hereunder.\nYou acknowledge and agree that the Company has not granted you any license, copyright or similar right with respect to any of the Evaluation\nMaterial.\nYou recognize and acknowledge the competitive value and confidential nature of the Evaluation Material and that irreparable damage will\nresult to the Company if information contained therein or derived therefrom is disclosed to any third party except as herein provided or is used for\nany purpose other than the evaluation of a possible negotiated transaction with the Company. It is further understood and agreed that money damages\nwould not be a sufficient remedy for any breach of this letter agreement by you or any of your Representatives and that the Company shall be\nentitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed\nto\nbe the exclusive remedies for a breach by you of this letter agreement but shall be in addition to all other remedies available at law or equity\nto\nthe\nCompany. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, nonappealable order\nthat a party has breached this letter agreement, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal\nfees\nand disbursements incurred by prevailing party in connection with such litigation, including any appeal therefrom.\nThis letter agreement is for the benefit of each party hereto, and shall be governed by and construed in accordance with the laws of the State of\nNew York, without giving effect to the principles of conflicts of law thereof. Each party hereby irrevocably and unconditionally consents to submit\nto the exclusive jurisdiction of the courts of the State of New York and the United States of America located in the State of New York for any\nactions, suits or proceedings arising out of or relating to this letter agreement and the transactions contemplated hereby (and agrees not to commence\nany action, suit or proceeding relating thereto except in such courts), and each party further agrees that service of any process, summons, notice or\ndocument by Federal Express, DHL, UPS, Airborne or any other recognized international courier service to its respective address set forth in this\nletter agreement shall be effective service of process for any action, suit or proceeding brought against such party in any such court. Each party\nhereto hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\n7\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 8\nproceeding arising out of this letter agreement or the transactions contemplated hereby, in the courts of the State of New York or the United States of\nAmerica located in the State of New York, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such\ncourt that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\nThe rights of the Company under this letter agreement may be assigned in whole or in part to any purchaser of the Company, which purchaser\nshall be entitled to enforce this letter agreement to the same extent and in the same manner as the Company is entitled to enforce this letter\nagreement. You may not assign your rights or obligations under this letter agreement to any person or entity without the prior written consent of the\nCompany. Subject to the foregoing, this letter agreement shall be binding on the respective successors and permitted assigns of the parties hereto.\nThe letter agreement contains the entire agreement between you and the Company concerning the subject matter hereof, and no modification\nof this letter agreement or waiver of the terms and conditions hereof will be binding unless approved in writing by you and the Company.\nThis letter agreement shall expire 24 months from the date hereof.\nFor the convenience of the parties, this letter agreement may be executed by facsimile and in counterparts, each of which shall be deemed to be\nan original, and both of which taken together, shall constitute one agreement binding on both parties.\n[Remainder of Page Intentionally Left Blank; Signature Page to Follow]\n8\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nEurand N.V.\nBy: /s/ Gearoid Faherty\nName: Gearoid Faherty\nTitle: Chief Executive Officer\nAccepted and agreed as of the date first written above:\nTPG Capital, L.P.\nBy: TPG Capital Advisors, LLC\nBy: /s/ Ronald Cami\nName: Ronald Cami\nTitle: Vice President\nAxcan Pharma Inc.\nBy: /s/ Richard Tarte\nName: Richard Tarte\nTitle: General Counsel	EX-99.(D)(4) 8 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nEURAND N.V.\nOLYMPIC PLAZA\nFRED. ROESKESTRAAT 123\n1076 EE AMSTERDAM, THE NETHERLANDS\nJuly 13, 2010\nCONFIDENTIAL\nTPG Capital, L.P.\nAttn: Ronald Cami\n301 Commerce Street\nSuite 3300\nFort Worth, TX 76102\nAxcan Pharma Inc.\nAttn: Richard Tarte\n597 Laurier Boulevard\nMont-Saint-Hilaire, Quebec J3H 6C4\nCanada\nLadies and Gentlemen:\nIn connection with TPG Capital, L.P. (“TPG”) and Axcan Pharma Inc. (“Axcan”) (Axcan and TPG collectively, “you” or “your”) considering a\npossible negotiated tender offer/merger or acquisition of, or similar negotiated transaction (a “transaction”) with, Eurand N.V. (the “Company”)\nand/or its affiliates, you have requested, and the Company is prepared to make available to you, certain information concerning its business,\noperations, assets and liabilities. As a condition to such information being furnished to you and your affiliates, and your and their respective\ndirectors, officers, employees, commercial banking institutions of recognized standing as potential sources of debt financing, agents, or advisors\n(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors) (collectively, “Representatives”), you agree to\ntreat any information concerning the Company (whether prepared by the Company, its advisors or otherwise and irrespective of the form of\ncommunication) which has been or is furnished to you or to your Representatives by or on behalf of the Company in relation to the potential\ntransaction (herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or\nabstain from taking certain other actions hereinafter set forth.\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 2\nThe term “Evaluation Material” shall be deemed to include any notes, analyses, reports, compilations, studies, interpretations, memoranda or\nother documents (regardless of the form thereof) prepared by you or your Representatives which contain, reflect or are based upon, in whole or in\npart, any information furnished to you or your Representatives pursuant hereto. The term “Evaluation Material” does not include information which\n(i) is or becomes generally available to the public other than as a result of a disclosure directly or indirectly by you or your Representatives in\nviolation of this letter agreement; (ii) was within your possession or the possession of any of your Representatives prior to it being furnished to you\nby or on behalf of the Company pursuant hereto, provided that such information is not known by you to be subject to another confidentiality\nagreement with or other contractual obligation of confidentiality to the Company with respect to such information; (iii) becomes available to you or\nany of your Representatives on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such\nsource is not known by you to be bound by a confidentiality agreement with or other contractual obligation of confidentiality to the Company with\nrespect to such information; or (iv) is independently developed by you or your Representatives without reference to or reliance on any of the\nEvaluation Material, as evidenced by written evidence of the same.\nYou hereby agree that (i) you and your Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible\ntransaction between the Company and you, (ii) the Evaluation Material will be kept confidential and (iii) you and your Representatives will not\ndisclose any of the Evaluation Material in any manner whatsoever; provided, however, that (x) you may make any disclosure of such information to\nwhich the Company gives its prior written consent; and (y) any of such information may be disclosed to your Representatives who need to know\nsuch information for the sole purpose of evaluating a possible transaction with the Company, provided that each such Representative agrees to treat\nsuch information as confidential in accordance with the terms of this letter agreement. For the avoidance of doubt, TPG and Axcan acknowledge that\nAxcan and the Company enjoy a long-standing and valued commercial relationship based on formalized contractual arrangements, and accordingly\nyou further agree that you and your Representatives shall not use the Evaluation Material (a) in connection with the negotiating or re-negotiating of\nany of the commercial terms of any agreement or arrangement between Axcan and the Company, or (b) in connection with any actions, suits,\nproceedings or claims relating to any commercial agreements or arrangements between Axcan and the Company. For the avoidance of doubt,\n“Evaluation Material” shall not include information furnished or to be furnished by or on behalf of the Company in relation to activities covered by\nsuch contractual arrangements, which information shall remain subject to the confidentiality obligations under said contractual arrangements. You\nshall be responsible for any breach by your Representatives of the terms of this letter agreement that are applicable to your Representatives, and you\nagree, at your sole expense, to take commercially reasonable measures to restrain your Representatives from prohibited or unauthorized disclosure or\nuse of the Evaluation Material in breach of this letter agreement. As a further condition to such Evaluation Material being furnished to any\ncommercial banking institution of recognized standing as a potential source of debt financing, such banking institution shall, prior to receiving such\nEvaluation Material, execute a written agreement with TPG and/or Axcan agreeing to be bound by the terms of this letter agreement that are\napplicable to your Representatives.\n-2-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 3\nIn addition, except as otherwise required by applicable law, regulation or legal process the parties agree that, without the prior written consent\nof the other party or as otherwise permitted by this letter agreement, the parties and their Representatives will not disclose to any other person the\nexistence of this letter agreement, the fact that the Evaluation Material has been made available to you, that discussions or negotiations are taking\nplace concerning a possible transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the\nstatus thereof). Without limiting the generality of the foregoing, you further agree that, without the prior written consent of the Company, you will\nnot, directly or indirectly, enter into any agreement, arrangement or understanding (other than with your Representatives in their capacities as such),\nor any discussions which might lead to such agreement, arrangement or understanding (other than with your Representatives in their capacities as\nsuch), with any person regarding a possible transaction involving the Company (except in respect of any possible financing of such transaction). The\nterm “person” as used in this letter agreement shall be broadly interpreted to include the media and any governmental representative or authority,\ncorporation, company, partnership, joint venture, group, limited liability company, other entity or individual. Notwithstanding the foregoing, the\nCompany may disclose the fact that it is pursuing strategic alternatives; provided, however, that, except to the extent required by applicable law,\nregulation or legal process (including the rules of applicable stock exchanges), the Company will not, without your prior written consent, identify\nyou by name or identifiable description as being involved in discussions or negotiations concerning the transaction contemplated herein to any\nperson other than directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers and\nfinancial advisors) of the Company who reasonably require access to such information in connection with such transaction.\nIn the event that you or any of your Representatives are requested or required (by any applicable law or regulation or pursuant to legal process\nsuch as oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other\nsimilar process) to disclose any of the Evaluation Material or the existence of this letter agreement, you shall provide the Company with prompt\nwritten notice, to the extent legally permissible, of any such request or requirement and the Company may seek a protective order or other\nappropriate remedy and/or waive compliance with the provisions of this letter agreement. If you or any of your Representatives are on the advice of\ncounsel, legally required to disclose Evaluation Material, you or your Representatives may, without liability hereunder, disclose to such tribunal or\nother entity only that portion of the Evaluation Material which such counsel advises you is legally required to be disclosed, provided that you\nexercise commercially reasonable efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by reasonably\ncooperating with the Company to request an appropriate protective order or other reliable assurance that confidential treatment will be accorded the\nEvaluation Material.\nIf you decide that you do not wish to proceed with a transaction with the Company, you will promptly inform the Company of that decision. At\nany time upon the written request of the Company for any reason, you will promptly (and in no event later than five business days after such request)\ndeliver to the Company or destroy all written Evaluation Material (and all copies\n-3-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 4\nthereof) furnished to you or your Representatives by or on behalf of the Company pursuant hereto and you and your Representatives shall not retain\nany copies, extracts or other reproductions in whole or in part of such material. In the event of such a request, all Evaluation Material prepared by\nyou or your Representatives shall be destroyed and no copy thereof (including that stored in any computer or similar device) shall be retained.\nNotwithstanding the foregoing, you and your Representatives (i) may each retain one (1) copy of the Evaluation Material to the extent that such\nretention is required to demonstrate compliance with applicable law, rule, regulation or professional standards (as applicable to attorneys and\naccountants), or to comply with a bona fide document retention policy, provided, however, that any such information so retained shall be segregated\nto your or your Representatives’, as the case may be, legal department or internal compliance department and held in compliance with the terms of\nthis Agreement and (ii) shall, to the extent that (i) above is inapplicable to Evaluation Material that is electronically stored, destroy such\nelectronically stored Evaluation Material only to the extent that it is reasonably practical to do so. Upon the Company’s written request, you shall\nconfirm in writing your compliance with the terms of this paragraph. Notwithstanding the return or destruction of the Evaluation Material, you and\nyour Representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder in accordance with the terms\nhereof.\nYou understand and acknowledge that neither the Company nor any of its Representatives (including, without limitation, any investment bank\nthat the Company informs you is acting as its representative in connection with the possible transaction (“IBANK”)), or any of their respective\ndirectors, officers, stockholders, partners, owners, employees, affiliates or agents make any representation or warranty, express or implied, as to the\naccuracy or completeness of the Evaluation Material. You agree that neither the Company nor any of its Representatives (including, without\nlimitation, IBANK), or any of their respective directors, officers, stockholders, partners, owners, employees, affiliates or agents shall have any\nliability to you or to any of your Representatives or any other person relating to or resulting from the use of the Evaluation Material or any errors\ntherein or omissions therefrom. Only those representations or warranties which are made in a written agreement regarding any transactions\ncontemplated hereby, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, you and we understand and agree that we\nand you have a commonality of interest with respect to such matters and it is our and your desire, intention and mutual understanding that the sharing\nof such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under\nthe attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the\nattorney-client privilege, work product doctrine and other applicable privilege shall remain entitled to such protection under these privileges, this\nletter agreement, and under the joint defense doctrine.\nIn addition, you hereby acknowledge that you are aware (and that prior to their receipt of any Evaluation Material your Representatives who\nare apprised of a possible transaction have\n-4-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 5\nbeen or will be advised) that the United States and other applicable securities laws generally prohibit any person who has material, non-public\ninformation about a company obtained directly or indirectly from that company from purchasing or selling securities of such company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor sell such securities.\nYou agree that all communications regarding a possible transaction regarding the Company, all requests for additional information, facility\ntours or management meetings and all discussions or questions regarding procedures with respect to a possible transaction, will be submitted or\ndirected to Gearoid Faherty or such other person or persons as may designated by the Company in writing. Without the express prior consent of the\nCompany, you agree that you will not, directly or indirectly, contact or communicate with any person known by you to be an officer, employee or\nagent of the Company.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of 12 months from the date hereof,\nneither you nor any of your affiliates will solicit to employ, (i) any of the officers of the Company or (ii) any of the other employees of the Company\nwith whom you have come into contact during the course of due diligence, in each case so long as they are employed by the Company, without\nobtaining the prior written consent of the Company; provided that the placement of general advertisements (including, without limitation, any\nrecruitment efforts conducted by any recruitment agency, provided that neither you nor such of your affiliates have directed such recruitment efforts\nat such person) shall not constitute a breach of this provision.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, during the period commencing on the date of this\nletter agreement and ending on the 18 month anniversary of the date of this letter agreement, neither you nor any of your Representatives shall,\nwithout the prior written consent of an authorized officer of the Company or its board of directors:\n(a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any Voting Securities or direct or indirect\nrights to acquire any Voting Securities of the Company or any subsidiary thereof, or any assets of the Company or any subsidiary or division thereof\n(provided, however, that the foregoing shall not be understood to limit your ability to propose or enter into other ordinary course commercial\ntransactions with the Company, including licensing, marketing, production and similar arrangements, that do not involve a sale, transfer or license\n(other than a limited license) of all or any substantial portion of the stock, assets or business of the Company or its subsidiaries);\n(b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of the\nSecurities and Exchange Commission (the “SEC”)), or seek to advise or influence any person or entity with respect to the voting of, any Voting\nSecurities of the Company;\n-5-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 6\n(c) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary\ntransaction involving the Company or any of its securities or assets;\n(d) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, in\nconnection with any of the foregoing;\n(e) otherwise act or seek to control or influence the management, board of directors or policies of the Company; or\n(f) take any action that could reasonably be expected to require the Company to make a public announcement regarding the possibility of any\nof the events described in clauses (a) through (e) above.\nFor purposes of this letter agreement, “Voting Securities” shall mean, at any time, shares of any class of capital stock of the Company which\nare then entitled to vote generally in the election of directors; provided, that for purposes of this definition any securities which at such time are\nconvertible or exchangeable into or exercisable for shares of common stock of the Company shall be deemed to have been so converted, exchanged\nor exercised. For the avoidance of doubt, “Voting Securities” does not include any debt securities of the Company or its affiliates, and nothing in this\nletter agreement shall prohibit you or any of your Representatives from purchasing any such debt securities.\nEach party hereto understands and agrees that no contract or agreement providing for any transaction involving the Company shall be deemed\nto exist between you and the Company unless and until a final definitive agreement has been executed and delivered, and each party hereby waives,\nin advance, any claims (including, without limitation, claims for breach of contract) in connection with any transaction involving the Company\nunless and until you and the Company shall have entered into a final definitive agreement. You and the Company also agree that unless and until a\nfinal definitive agreement regarding a transaction between the Company and you has been executed and delivered, neither the Company nor you will\nbe under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement or any other written or oral\nexpression with respect to such transaction, except for the matters specifically agreed to herein or therein. You further acknowledge and agree that\nthe Company reserves the right, in its sole discretion, to reject any and all proposals made by you or any of your Representatives with regard to a\ntransaction between the Company and you, and to terminate discussions and negotiations with you at any time and for any reason or no reason. You\nfurther understand that (i) the Company and its Representatives shall be free to conduct any process for any transaction involving the Company, if\nand as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested parties and entering into a\npreliminary or definitive agreement without prior notice to you or any other person); and (ii) any procedures relating to such process or transaction\nmay be changed at any time without notice to you or any other person. Each party hereto further understands that it shall not have any claims\nwhatsoever against the other party, its Representatives or any of their respective directors, officers, stockholders, owners, partners, employees,\naffiliates or agents arising out of or relating to a transaction involving the Company (other than those as against the\n-6-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 7\nparties to a final definitive agreement with you in accordance with the terms thereof) nor, unless a final definitive agreement is entered into with you,\nagainst any third party with whom a transaction is entered into. Neither this paragraph nor any other provision in this letter agreement can be waived\nor amended except by written consent of both parties, which consent shall specifically refer to this paragraph (or such provision) and explicitly make\nsuch waiver or amendment. For the purposes of this paragraph, the term “definitive agreement” shall not include an executed letter of intent or any\nother preliminary written agreement, nor does it include any written or verbal acceptance by the Company of any offer or bid on your part.\nNotwithstanding the foregoing, nothing in this paragraph shall limit the rights or obligations of either party under this letter agreement.\nIt is understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor privilege hereunder.\nYou acknowledge and agree that the Company has not granted you any license, copyright or similar right with respect to any of the Evaluation\nMaterial.\nYou recognize and acknowledge the competitive value and confidential nature of the Evaluation Material and that irreparable damage will\nresult to the Company if information contained therein or derived therefrom is disclosed to any third party except as herein provided or is used for\nany purpose other than the evaluation of a possible negotiated transaction with the Company. It is further understood and agreed that money damages\nwould not be a sufficient remedy for any breach of this letter agreement by you or any of your Representatives and that the Company shall be\nentitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed\nto be the exclusive remedies for a breach by you of this letter agreement but shall be in addition to all other remedies available at law or equity to the\nCompany. In the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final, nonappealable order\nthat a party has breached this letter agreement, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees\nand disbursements incurred by prevailing party in connection with such litigation, including any appeal therefrom.\nThis letter agreement is for the benefit of each party hereto, and shall be governed by and construed in accordance with the laws of the State of\nNew York, without giving effect to the principles of conflicts of law thereof. Each party hereby irrevocably and unconditionally consents to submit\nto the exclusive jurisdiction of the courts of the State of New York and the United States of America located in the State of New York for any\nactions, suits or proceedings arising out of or relating to this letter agreement and the transactions contemplated hereby (and agrees not to commence\nany action, suit or proceeding relating thereto except in such courts), and each party further agrees that service of any process, summons, notice or\ndocument by Federal Express, DHL, UPS, Airborne or any other recognized international courier service to its respective address set forth in this\nletter agreement shall be effective service of process for any action, suit or proceeding brought against such party in any such court. Each party\nhereto hereby irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\n-7-\nTPG Capital, L.P. Axcan Pharma Inc.\nJuly 13, 2010\nPage 8\nproceeding arising out of this letter agreement or the transactions contemplated hereby, in the courts of the State of New York or the United States of\nAmerica located in the State of New York, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such\ncourt that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\nThe rights of the Company under this letter agreement may be assigned in whole or in part to any purchaser of the Company, which purchaser\nshall be entitled to enforce this letter agreement to the same extent and in the same manner as the Company is entitled to enforce this letter\nagreement. You may not assign your rights or obligations under this letter agreement to any person or entity without the prior written consent of the\nCompany. Subject to the foregoing, this letter agreement shall be binding on the respective successors and permitted assigns of the parties hereto.\nThe letter agreement contains the entire agreement between you and the Company concerning the subject matter hereof, and no modification\nof this letter agreement or waiver of the terms and conditions hereof will be binding unless approved in writing by you and the Company.\nThis letter agreement shall expire 24 months from the date hereof.\nFor the convenience of the parties, this letter agreement may be executed by facsimile and in counterparts, each of which shall be deemed to be\nan original, and both of which taken together, shall constitute one agreement binding on both parties.\n[Remainder of Page Intentionally Left Blank; Signature Page to Follow]\n-8-\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nEurand N.V.\nBy: /s/ Gearóid Faherty\nName: Gearóid Faherty\nTitle: Chief Executive Officer\nAccepted and agreed as of the date first written above:\nTPG Capital, L.P.\nBy: TPG Capital Advisors, LLC\nBy: /s/ Ronald Cami\nName: Ronald Cami\nTitle: Vice President\nAxcan Pharma Inc.\nBy: /s/ Richard Tarte\nName: Richard Tarte\nTitle: General Counsel
+d8b971e17298b4426e0e8ed07bcaf50f.pdf	effective_date jurisdiction party term	EXHIBIT D\nFORM OF NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“AGREEMENT”) is effective as of the day of\n, 2010 by and between Motorola, Inc., a Delaware\ncorporation with offices located at 1303 East Algonquin Road, Schaumburg, Illinois 60196 (hereafter “MOTOROLA”), and Iridium Satellite LLC, A\nDelaware limited liability company with principal offices located at 1750 Tysons Boulevard, Suite 1400, McLean, Virginia 22102 (hereafter\n“IRIDIUM”).\nA. Background. The parties or their affiliates are parties to the following agreements, among others: (i) the Intellectual Property Rights Agreement,\ndated December 11, 2000 (“FIRST GENERATION IPR AGREEMENT”); (ii) the System Intellectual Property Rights Amendment and Agreement,\ndated\n, 2010 (“SYSTEM IPR AGREEMENT”); (iii) the Subscriber Equipment Technology Agreement (Design), dated September 30, 2002\n(“SETA (DESIGN)”); (iv) the Subscriber Equipment Technology Agreement (Manufacturing), dated September 30, 2002 (“SETA (MFG)”); and\n(v) the Supplemental Subscriber Equipment Technology Amendment and Agreement, dated\n, 2010 (“SSETA”), which shall be collectively\nreferred to as the “IP AGREEMENTS.”\nB. Definition. “PROPRIETARY INFORMATION” means information disclosed by either party (“DISCLOSING PARTY”) to or otherwise received\nby the other party (“RECIPIENT”) pursuant to any of the IP AGREEMENTS that the DISCLOSING PARTY at the time of disclosure identifies in\nwriting as confidential and/or proprietary by means of a legend, marking, stamp or other positive written notice identifying the information to be\nconfidential and/or proprietary, or information disclosed orally, visually, or by other non-written manner by the DISCLOSING PARTY to the\nRECIPIENT, where the RECIPIENT was informed that the information is confidential in nature, or any other information disclosed by the\nDISCLOSING PARTY to the RECIPIENT in any manner that the RECIPIENT should reasonably recognize as being of a confidential nature.\nC. Use of Proprietary Information. PROPRIETARY INFORMATION disclosed hereunder may be used only during the term of this\nAGREEMENT and only for purposes set forth in or otherwise permitted by the IP AGREEMENTS. This AGREEMENT is entered into solely to\nprovide for the treatment of PROPRIETARY INFORMATION to the extent disclosed hereunder or under the IP AGREEMENTS. Neither party has\nan obligation to supply PROPRIETARY INFORMATION hereunder.\nD. Protection of Proprietary Information. It is agreed that for a period of ten (10) years following the termination of the IP AGREEMENT\npursuant to which PROPRIETARY INFORMATION was disclosed, the RECIPIENT will use such PROPRIETARY INFORMATION only for the\npurpose(s) provided in Section C above and shall make reasonable efforts to preserve in confidence such PROPRIETARY INFORMATION and\nprevent disclosure thereof to third parties. The RECIPIENT agrees that it will use the same reasonable efforts to protect PROPRIETARY\nINFORMATION as are used to protect its own proprietary information, and such degree of care shall include at least the use of reasonable care.\nDisclosures of such information shall be restricted to those employees, contractors, customers, agents, and permitted sublicensees of the RECIPIENT\nwho are participating in the efforts provided in Paragraph C above, who have a need to know such information, and who have been made aware of\nand consent to abide by restrictions at least as restrictive as those contained herein concerning the use of such PROPRIETARY INFORMATION.\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE\nINFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF\nTHIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\nE. Exceptions. The obligation to protect PROPRIETARY INFORMATION, and the liability for unauthorized disclosure or use of PROPRIETARY\nINFORMATION, shall not apply with respect to such information which is:\n(i) published or otherwise is or becomes available to the public other than by breach of this AGREEMENT; or\n(ii) rightly received by the RECIPIENT hereunder from a third party without confidential limitation; or\n(iii) independently known by or independently developed by the RECIPIENT without the use of PROPRIETARY INFORMATION; or\n(iv) approved in writing by the DISCLOSING PARTY for public release by the RECIPIENT.\nIn addition, in the event that the RECIPIENT is required to disclose PROPRIETARY INFORMATION pursuant to any applicable law, regulation\n(including SEC regulations and rules), stock exchange rule or any other market or reporting system, or by legal process or pursuant to applicable\nprofessional standards, the RECIPIENT may do so provided that the RECIPIENT has, if possible, notified the DISCLOSING PARTY promptly\nupon learning of the possibility that disclosure could be required pursuant to any such law, regulation, or legal order and has, to the extent practicable\nor permitted, given the DISCLOSING PARTY a reasonable opportunity to contest or limit the scope of such required disclosure and has cooperated\nwith the DISCLOSING PARTY toward this end.\nF. Term and Termination. The term of this AGREEMENT shall coincide with the term of the last to expire or terminate of the IP AGREEMENTS.\nTermination of the IP AGREEMENTS shall not, however, affect the rights and obligations contained herein with respect to PROPRIETARY\nINFORMATION disclosed hereunder prior to termination.\nG. No Transfer or License of Intellectual Property. Except as expressly provided herein, neither the execution and delivery of this AGREEMENT,\nnor the furnishing of any PROPRIETARY INFORMATION, shall be construed as granting either expressly or by implication, estoppel or otherwise,\nany ownership rights or rights by license or otherwise under any invention, improvement, discovery or patent, trade secret, know-how, work of\nauthorship, software program, or other intellectual property now or hereafter owned or under the control of a party disclosing PROPRIETARY\nINFORMATION hereunder.\nH. Transfer/Assignment. Except as expressly permitted in any IP AGREEMENT, this AGREEMENT and the rights and obligations hereunder may\nnot be transferred or assigned by one party without the prior written approval of the other party hereto.\nI. U .S. Laws and Regulations. Except as expressly permitted in the IP AGREEMENTS, the RECIPIENT shall not export, directly or indirectly, any\nPROPRIETARY INFORMATION disclosed under this AGREEMENT to any country which the U.S. Government at the time of export requires an\nexport license or other Government approval without first obtaining such license or approval. The RECIPIENT shall first obtain the written consent\nof the DISCLOSING PARTY prior to submitting any request for authority to export any such PROPRIETARY INFORMATION.\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE\nINFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF\nTHIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\nD-2\nJ. Applicable Law. The law of the State of Illinois, U.S .A ., except for its choice of laws rules, shall govern this AGREEMENT.\nK. No Formal Business Relationship. This AGREEMENT shall not be construed as a teaming, joint venture or other such arrangement; rather, the\nparties hereto expressly agree that this AGREEMENT is for the purpose of protecting PROPRIETARY INFORMATION only.\nL. No Obligation to Support; No Representation. PROPRIETARY INFORMATION provided hereunder is provided “AS IS”, without any\nwarranty of any kind, except as expressly provided in the IP AGREEMENTS. Neither party nor their officers, directors, employees, advisors or\nagents make any representation or warranty as to the accuracy or completeness of any PROPRIETARY INFORMATION which may be furnished\nhereunder, and none of such officers, directors, employees, advisors or agents are authorized to make any such representation or warranty. Neither\nparty nor their officers, directors, employees, advisors or agents shall have any liability to the RECIPIENT or any other person resulting from the use\nof the PROPRIETARY INFORMATION, or any inaccuracy or incompleteness of the PROPRIETARY INFORMATION.\nM. Entire Agreement. This AGREEMENT contains the entire understanding between the parties relative to the protection of PROPRIETARY\nINFORMATION and supersedes all prior and collateral communication, reports, and understanding between the parties in respect thereto. No\nchange, modification, alteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives of\nboth parties.\nN. Binding Effect. This AGREEMENT shall be binding upon each party, its affiliates, respective employees, agents, representative, successors, and\nassigns.\nO. Headings. Paragraph headings are included in this AGREEMENT for purposes of information and ease of use only and shall not be used in\ninterpreting its terms.\nAGREED AND ACCEPTED BY:\nMotorola, Inc.\nIridium Satellite LLC\nTyped\nName:\nTyped\nName:\nBy:\nBy:\nTitle:\nTitle:\nDate:\nDate:\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE\nINFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF\nTHIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\nD-3	EXHIBIT D\nFORM OF NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“AGREEMENT?”) is effective as of the __ day of 2010 by and between Motorola, Inc., a Delaware\ncorporation with offices located at 1303 East Algonquin Road, Schaumburg, Illinois 60196 (hereafter “MOTOROLA”), and Iridium Satellite LLC, A\nDelaware limited liability company with principal offices located at 1750 Tysons Boulevard, Suite 1400, McLean, Virginia 22102 (hereafter\n“IRIDIUM”).\n \nA. Background. The parties or their affiliates are parties to the following agreements, among others: (i) the Intellectual Property Rights Agreement,\ndated December 11, 2000 (“FIRST GENERATION IPR AGREEMENT™); (ii) the System Intellectual Property Rights Amendment and Agreement,\ndated , 2010 (“SYSTEM IPR AGREEMENT”); (iii) the Subscriber Equipment Technology Agreement (Design), dated September 30, 2002\n(“SETA (DESIGN)”); (iv) the Subscriber Equipment Technology Agreement (Manufacturing), dated September 30, 2002 (“SETA (MFG)”); and\n(v) the Supplemental Subscriber Equipment Technology Amendment and Agreement, dated , 2010 (“SSETA”), which shall be collectively\nreferred to as the “IP AGREEMENTS.”\nB. Definition. “PROPRIETARY INFORMATION” means information disclosed by either party (“DISCLOSING PARTY”) to or otherwise received\nby the other party (“RECIPIENT”) pursuant to any of the IP AGREEMENTS that the DISCLOSING PARTY at the time of disclosure identifies in\nwriting as confidential and/or proprietary by means of a legend, marking, stamp or other positive written notice identifying the information to be\nconfidential and/or proprietary, or information disclosed orally, visually, or by other non-written manner by the DISCLOSING PARTY to the\nRECIPIENT, where the RECIPIENT was informed that the information is confidential in nature, or any other information disclosed by the\nDISCLOSING PARTY to the RECIPIENT in any manner that the RECIPIENT should reasonably recognize as being of a confidential nature.\nC. Use of Proprietary Information. PROPRIETARY INFORMATION disclosed hereunder may be used only during the term of this\nAGREEMENT and only for purposes set forth in or otherwise permitted by the IP AGREEMENTS. This AGREEMENT is entered into solely to\nprovide for the treatment of PROPRIETARY INFORMATION to the extent disclosed hereunder or under the IP AGREEMENTS. Neither party has\nan obligation to supply PROPRIETARY INFORMATION hereunder.\nD. Protection of Proprietary Information. It is agreed that for a period of ten (10) years following the termination of the IP AGREEMENT\npursuant to which PROPRIETARY INFORMATION was disclosed, the RECIPIENT will use such PROPRIETARY INFORMATION only for the\npurpose(s) provided in Section C above and shall make reasonable efforts to preserve in confidence such PROPRIETARY INFORMATION and\nprevent disclosure thereof to third parties. The RECIPIENT agrees that it will use the same reasonable efforts to protect PROPRIETARY\nINFORMATION as are used to protect its own proprietary information, and such degree of care shall include at least the use of reasonable care.\nDisclosures of such information shall be restricted to those employees, contractors, customers, agents, and permitted sublicensees of the RECIPIENT\nwho are participating in the efforts provided in Paragraph C above, who have a need to know such information, and who have been made aware of\nand consent to abide by restrictions at least as restrictive as those contained herein concerning the use of such PROPRIETARY INFORMATION.\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE\nINFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF\nTHIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\nE. Exceptions. The obligation to protect PROPRIETARY INFORMATION, and the liability for unauthorized disclosure or use of PROPRIETARY\nINFORMATION, shall not apply with respect to such information which is:\n(i) published or otherwise is or becomes available to the public other than by breach of this AGREEMENT; or\n(ii) rightly received by the RECIPIENT hereunder from a third party without confidential limitation; or\n(iii) independently known by or independently developed by the RECIPIENT without the use of PROPRIETARY INFORMATION; or\n(iv) approved in writing by the DISCLOSING PARTY for public release by the RECIPIENT.\nIn addition, in the event that the RECIPIENT is required to disclose PROPRIETARY INFORMATION pursuant to any applicable law, regulation\n(including SEC regulations and rules), stock exchange rule or any other market or reporting system, or by legal process or pursuant to applicable\nprofessional standards, the RECIPIENT may do so provided that the RECIPIENT has, if possible, notified the DISCLOSING PARTY promptly\nupon learning of the possibility that disclosure could be required pursuant to any such law, regulation, or legal order and has, to the extent practicable\nor permitted, given the DISCLOSING PARTY a reasonable opportunity to contest or limit the scope of such required disclosure and has cooperated\nwith the DISCLOSING PARTY toward this end.\nF. Term and Termination. The term of this AGREEMENT shall coincide with the term of the last to expire or terminate of the [P AGREEMENTS.\nTermination of the IP AGREEMENTS shall not, however, affect the rights and obligations contained herein with respect to PROPRIETARY\nINFORMATION disclosed hereunder prior to termination.\nG. No Transfer or License of Intellectual Property. Except as expressly provided herein, neither the execution and delivery of this AGREEMENT,\nnor the furnishing of any PROPRIETARY INFORMATION, shall be construed as granting either expressly or by implication, estoppel or otherwise,\nany ownership rights or rights by license or otherwise under any invention, improvement, discovery or patent, trade secret, know-how, work of\nauthorship, software program, or other intellectual property now or hereafter owned or under the control of a party disclosing PROPRIETARY\nINFORMATION hereunder.\nH. Transfer/Assignment. Except as expressly permitted in any [P AGREEMENT, this AGREEMENT and the rights and obligations hereunder may\nnot be transferred or assigned by one party without the prior written approval of the other party hereto.\nI. U.S. Laws and Regulations. Except as expressly permitted in the IP AGREEMENTS, the RECIPIENT shall not export, directly or indirectly, any\nPROPRIETARY INFORMATION disclosed under this AGREEMENT to any country which the U.S. Government at the time of export requires an\nexport license or other Government approval without first obtaining such license or approval. The RECIPIENT shall first obtain the written consent\nof the DISCLOSING PARTY prior to submitting any request for authority to export any such PROPRIETARY INFORMATION.\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE\nINFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF\nTHIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\nD-2\nJ. Applicable Law. The law of the State of Illinois, U.S.A., except for its choice of laws rules, shall govern this AGREEMENT.\nK. No Formal Business Relationship. This AGREEMENT shall not be construed as a teaming, joint venture or other such arrangement; rather, the\nparties hereto expressly agree that this AGREEMENT is for the purpose of protecting PROPRIETARY INFORMATION only.\nL. No Obligation to Support; No Representation. PROPRIETARY INFORMATION provided hereunder is provided “AS IS”, without any\nwarranty of any kind, except as expressly provided in the IP AGREEMENTS. Neither party nor their officers, directors, employees, advisors or\nagents make any representation or warranty as to the accuracy or completeness of any PROPRIETARY INFORMATION which may be furnished\nhereunder, and none of such officers, directors, employees, advisors or agents are authorized to make any such representation or warranty. Neither\nparty nor their officers, directors, employees, advisors or agents shall have any liability to the RECIPIENT or any other person resulting from the use\nof the PROPRIETARY INFORMATION, or any inaccuracy or incompleteness of the PROPRIETARY INFORMATION.\nM. Entire Agreement. This AGREEMENT contains the entire understanding between the parties relative to the protection of PROPRIETARY\nINFORMATION and supersedes all prior and collateral communication, reports, and understanding between the parties in respect thereto. No\nchange, modification, alteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives of\nboth parties.\nN. Binding Effect. This AGREEMENT shall be binding upon each party, its affiliates, respective employees, agents, representative, successors, and\nassigns.\nO. Headings. Paragraph headings are included in this AGREEMENT for purposes of information and ease of use only and shall not be used in\ninterpreting its terms.\nAGREED AND ACCEPTED BY:\nMotorola, Inc. Iridium Satellite LL.C\nTyped Typed\nName: Name:\nBy: By:\nTitle: Title:\nDate: Date:\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE\nINFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF\nTHIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\nD-3	EXHIBIT D\nFORM OF NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement ("AGREEMENT") is effective as of the day of 2010 by and between Motorola, Inc., a Delaware\ncorporation with offices located at 1303 East Algonquin Road, Schaumburg, Illinois 60196 (hereafter "MOTOROLA"), and Iridium Satellite LLC, A\nDelaware limited liability company with principal offices located at 1750 Tysons Boulevard, Suite 1400, McLean, Virginia 22102 (hereafter\n"IRIDIUM").\nA. Background. The parties or their affiliates are parties to the following agreements, among others: (i) the Intellectual Property Rights Agreement,\ndated December 11, 2000 ("FIRST GENERATION IPR AGREEMENT"); (ii) the System Intellectual Property Rights Amendment and Agreement,\ndated\n2010 ("SYSTEM IPR AGREEMENT"); (iii) the Subscriber Equipment Technology Agreement (Design), dated September 30,\n2002\n("SETA (DESIGN)"); (iv) the Subscriber Equipment Technology Agreement (Manufacturing), dated September 30, 2002 ("SETA (MFG)"); and\n(v) the Supplemental Subscriber Equipment Technology Amendment and Agreement, dated 2010 ("SSETA"), which shall be collectively\nreferred to as the "IP AGREEMENTS."\nB. Definition. "PROPRIETARY INFORMATION" means information disclosed by either party ("DISCLOSING PARTY") to or otherwise received\nby\nthe other party ("RECIPIENT") pursuant to any of the IP AGREEMENTS that the DISCLOSING PARTY at the time of disclosure identifies in\nwriting as confidential and/or proprietary by means of a legend, marking, stamp or other positive written notice identifying the information to be\nconfidential and/or proprietary, or information disclosed orally, visually, or by other non-written manner by the DISCLOSING PARTY to the\nRECIPIENT, where the RECIPIENT was informed that the information is confidential in nature, or any other information disclosed by the\nDISCLOSING PARTY to the RECIPIENT in any manner that the RECIPIENT should reasonably recognize as being of a confidential nature.\nC. Use of Proprietary Information. PROPRIETARY INFORMATION disclosed hereunder may be used only during the term of this\nAGREEMENT and only for purposes set forth in or otherwise permitted by the IP AGREEMENTS. This AGREEMENT is entered into solely to\nprovide for the treatment of PROPRIETARY INFORMATION to the extent disclosed hereunder or under the IP AGREEMENTS. Neither party\nhas\nan obligation to supply PROPRIETARY INFORMATION hereunder.\nD. Protection of Proprietary Information. It is agreed that for a period of ten (10) years following the termination of the IP AGREEMENT\npursuant to which PROPRIETARY INFORMATION was disclosed, the RECIPIENT will use such PROPRIETARY INFORMATION only for the\npurpose(s) provided in Section C above and shall make reasonable efforts to preserve in confidence such PROPRIETARY INFORMATION\nand\nprevent disclosure thereof to third parties. The RECIPIENT agrees that it will use the same reasonable efforts to protect PROPRIETARY\nINFORMATION as are used to protect its own proprietary information, and such degree of care shall include at least the use of reasonable care.\nDisclosures of such information shall be restricted to those employees, contractors, customers, agents, and permitted sublicensees of the RECIPIENT\nwho are participating in the efforts provided in Paragraph C above, who have a need to know such information, and who have been made aware\nof\nand consent to abide by restrictions at least as restrictive as those contained herein concerning the use of such PROPRIETARY INFORMATION.\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE\nINFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [****]. A COMPLETE VERSION OF\nTHIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\nE. Exceptions. The obligation to protect PROPRIETARY INFORMATION, and the liability for unauthorized disclosure or use of PROPRIETARY\nINFORMATION, shall not apply with respect to such information which is:\n(i) published or otherwise is or becomes available to the public other than by breach of this AGREEMENT; or\n(ii) rightly received by the RECIPIENT hereunder from a third party without confidential limitation; or\n(iii) independently known by or independently developed by the RECIPIENT without the use of PROPRIETARY INFORMATION; or\n(iv) approved in writing by the DISCLOSING PARTY for public release by the RECIPIENT.\nIn addition, in the event that the RECIPIENT is required to disclose PROPRIETARY INFORMATION pursuant to any applicable law, regulation\n(including SEC regulations and rules), stock exchange rule or any other market or reporting system, or by legal process or pursuant to applicable\nprofessional standards, the RECIPIENT may do so provided that the RECIPIENT has, if possible, notified the DISCLOSING PARTY promptly\nupon learning of the possibility that disclosure could be required pursuant to any such law, regulation, or legal order and has, to the extent practicable\nor permitted, given the DISCLOSING PARTY a reasonable opportunity to contest or limit the scope of such required disclosure and has cooperated\nwith the DISCLOSING PARTY toward this end.\nF. Term and Termination. The term of this AGREEMENT shall coincide with the term of the last to expire or terminate of the IP AGREEMENTS.\nTermination of the IP AGREEMENTS shall not, however, affect the rights and obligations contained herein with respect to PROPRIETARY\nINFORMATION disclosed hereunder prior to termination.\nG. No Transfer or License of Intellectual Property. Except as expressly provided herein, neither the execution and delivery of this AGREEMENT,\nnor the furnishing of any PROPRIETARY INFORMATION, shall be construed as granting either expressly or by implication, estoppel or otherwise,\nany ownership rights or rights by license or otherwise under any invention, improvement, discovery or patent, trade secret, know-how, work of\nauthorship, software program, or other intellectual property now or hereafter owned or under the control of a party disclosing PROPRIETARY\nINFORMATION hereunder.\nH. Transfer/Assignment. Except as expressly permitted in any IP AGREEMENT, this AGREEMENT and the rights and obligations hereunder may\nnot be transferred or assigned by one party without the prior written approval of the other party hereto.\nI. U.S. Laws and Regulations. Except as expressly permitted in the IP AGREEMENTS, the RECIPIENT shall not export, directly or indirectly, any\nPROPRIETARY INFORMATION disclosed under this AGREEMENT to any country which the U.S. Government at the time of export requires an\nexport license or other Government approval without first obtaining such license or approval. The RECIPIENT shall first obtain the written consent\nof the DISCLOSING PARTY prior to submitting any request for authority to export any such PROPRIETARY INFORMATION.\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE\nINFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION\nOF\nTHIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\nD-2\nJ. Applicable Law. The law of the State of Illinois, U.S.A., except for its choice of laws rules, shall govern this AGREEMENT.\nK. No Formal Business Relationship. This AGREEMENT shall not be construed as a teaming, joint venture or other such arrangement; rather, the\nparties hereto expressly agree that this AGREEMENT is for the purpose of protecting PROPRIETARY INFORMATION only.\nL. No Obligation to Support; No Representation. PROPRIETARY INFORMATION provided hereunder is provided "AS IS", without any\nwarranty of any kind, except as expressly provided in the IP AGREEMENTS. Neither party nor their officers, directors, employees, advisors or\nagents make any representation or warranty as to the accuracy or completeness of any PROPRIETARY INFORMATION which may be furnished\nhereunder, and none of such officers, directors, employees, advisors or agents are authorized to make any such representation or warranty. Neither\nparty nor their officers, directors, employees, advisors or agents shall have any liability to the RECIPIENT or any other person resulting from the use\nof the PROPRIETARY INFORMATION, or any inaccuracy or incompleteness of the PROPRIETARY INFORMATION.\nM. Entire Agreement. This AGREEMENT contains the entire understanding between the parties relative to the protection of PROPRIETARY\nINFORMATION and supersedes all prior and collateral communication, reports, and understanding between the parties in respect thereto. No\nchange, modification, alteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives of\nboth parties.\nN.\nBinding Effect. This AGREEMENT shall be binding upon each party, its affiliates, respective employees, agents, representative, successors, and\nassigns.\nO. Headings. Paragraph headings are included in this AGREEMENT for purposes of information and ease of use only and shall not be used\nin\ninterpreting its terms.\nAGREED AND ACCEPTED BY:\nMotorola, Inc.\nIridium Satellite LLC\nTyped\nTyped\nName:\nName:\nBy:\nBy:\nTitle:\nTitle:\nDate:\nDate:\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE\nINFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [****]. A COMPLETE VERSION OF\nTHIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\nD-3	EXHIBIT D\nFORM OF NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“AGREEMENT”) is effective as of the day of\n, 2010 by and between Motorola, Inc., a Delaware\ncorporation with offices located at 1303 East Algonquin Road, Schaumburg, Illinois 60196 (hereafter “MOTOROLA”), and Iridium Satellite LLC, A\nDelaware limited liability company with principal offices located at 1750 Tysons Boulevard, Suite 1400, McLean, Virginia 22102 (hereafter\n“IRIDIUM”).\nA. Background. The parties or their affiliates are parties to the following agreements, among others: (i) the Intellectual Property Rights Agreement,\ndated December 11, 2000 (“FIRST GENERATION IPR AGREEMENT”); (ii) the System Intellectual Property Rights Amendment and Agreement,\ndated\n, 2010 (“SYSTEM IPR AGREEMENT”); (iii) the Subscriber Equipment Technology Agreement (Design), dated September 30, 2002\n(“SETA (DESIGN)”); (iv) the Subscriber Equipment Technology Agreement (Manufacturing), dated September 30, 2002 (“SETA (MFG)”); and\n(v) the Supplemental Subscriber Equipment Technology Amendment and Agreement, dated\n, 2010 (“SSETA”), which shall be collectively\nreferred to as the “IP AGREEMENTS.”\nB. Definition. “PROPRIETARY INFORMATION” means information disclosed by either party (“DISCLOSING PARTY”) to or otherwise received\nby the other party (“RECIPIENT”) pursuant to any of the IP AGREEMENTS that the DISCLOSING PARTY at the time of disclosure identifies in\nwriting as confidential and/or proprietary by means of a legend, marking, stamp or other positive written notice identifying the information to be\nconfidential and/or proprietary, or information disclosed orally, visually, or by other non-written manner by the DISCLOSING PARTY to the\nRECIPIENT, where the RECIPIENT was informed that the information is confidential in nature, or any other information disclosed by the\nDISCLOSING PARTY to the RECIPIENT in any manner that the RECIPIENT should reasonably recognize as being of a confidential nature.\nC. Use of Proprietary Information. PROPRIETARY INFORMATION disclosed hereunder may be used only during the term of this\nAGREEMENT and only for purposes set forth in or otherwise permitted by the IP AGREEMENTS. This AGREEMENT is entered into solely to\nprovide for the treatment of PROPRIETARY INFORMATION to the extent disclosed hereunder or under the IP AGREEMENTS. Neither party has\nan obligation to supply PROPRIETARY INFORMATION hereunder.\nD. Protection of Proprietary Information. It is agreed that for a period of ten (10) years following the termination of the IP AGREEMENT\npursuant to which PROPRIETARY INFORMATION was disclosed, the RECIPIENT will use such PROPRIETARY INFORMATION only for the\npurpose(s) provided in Section C above and shall make reasonable efforts to preserve in confidence such PROPRIETARY INFORMATION and\nprevent disclosure thereof to third parties. The RECIPIENT agrees that it will use the same reasonable efforts to protect PROPRIETARY\nINFORMATION as are used to protect its own proprietary information, and such degree of care shall include at least the use of reasonable care.\nDisclosures of such information shall be restricted to those employees, contractors, customers, agents, and permitted sublicensees of the RECIPIENT\nwho are participating in the efforts provided in Paragraph C above, who have a need to know such information, and who have been made aware of\nand consent to abide by restrictions at least as restrictive as those contained herein concerning the use of such PROPRIETARY INFORMATION.\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE\nINFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF\nTHIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\nE. Exceptions. The obligation to protect PROPRIETARY INFORMATION, and the liability for unauthorized disclosure or use of PROPRIETARY\nINFORMATION, shall not apply with respect to such information which is:\n(i) published or otherwise is or becomes available to the public other than by breach of this AGREEMENT; or\n(ii) rightly received by the RECIPIENT hereunder from a third party without confidential limitation; or\n(iii) independently known by or independently developed by the RECIPIENT without the use of PROPRIETARY INFORMATION; or\n(iv) approved in writing by the DISCLOSING PARTY for public release by the RECIPIENT.\nIn addition, in the event that the RECIPIENT is required to disclose PROPRIETARY INFORMATION pursuant to any applicable law, regulation\n(including SEC regulations and rules), stock exchange rule or any other market or reporting system, or by legal process or pursuant to applicable\nprofessional standards, the RECIPIENT may do so provided that the RECIPIENT has, if possible, notified the DISCLOSING PARTY promptly\nupon learning of the possibility that disclosure could be required pursuant to any such law, regulation, or legal order and has, to the extent practicable\nor permitted, given the DISCLOSING PARTY a reasonable opportunity to contest or limit the scope of such required disclosure and has cooperated\nwith the DISCLOSING PARTY toward this end.\nF. Term and Termination. The term of this AGREEMENT shall coincide with the term of the last to expire or terminate of the IP AGREEMENTS.\nTermination of the IP AGREEMENTS shall not, however, affect the rights and obligations contained herein with respect to PROPRIETARY\nINFORMATION disclosed hereunder prior to termination.\nG. No Transfer or License of Intellectual Property. Except as expressly provided herein, neither the execution and delivery of this AGREEMENT,\nnor the furnishing of any PROPRIETARY INFORMATION, shall be construed as granting either expressly or by implication, estoppel or otherwise,\nany ownership rights or rights by license or otherwise under any invention, improvement, discovery or patent, trade secret, know-how, work of\nauthorship, software program, or other intellectual property now or hereafter owned or under the control of a party disclosing PROPRIETARY\nINFORMATION hereunder.\nH. Transfer/Assignment. Except as expressly permitted in any IP AGREEMENT, this AGREEMENT and the rights and obligations hereunder may\nnot be transferred or assigned by one party without the prior written approval of the other party hereto.\nI. U .S. Laws and Regulations. Except as expressly permitted in the IP AGREEMENTS, the RECIPIENT shall not export, directly or indirectly, any\nPROPRIETARY INFORMATION disclosed under this AGREEMENT to any country which the U.S. Government at the time of export requires an\nexport license or other Government approval without first obtaining such license or approval. The RECIPIENT shall first obtain the written consent\nof the DISCLOSING PARTY prior to submitting any request for authority to export any such PROPRIETARY INFORMATION.\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE\nINFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF\nTHIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\nD-2\nJ. Applicable Law. The law of the State of Illinois, U.S .A ., except for its choice of laws rules, shall govern this AGREEMENT.\nK. No Formal Business Relationship. This AGREEMENT shall not be construed as a teaming, joint venture or other such arrangement; rather, the\nparties hereto expressly agree that this AGREEMENT is for the purpose of protecting PROPRIETARY INFORMATION only.\nL. No Obligation to Support; No Representation. PROPRIETARY INFORMATION provided hereunder is provided “AS IS”, without any\nwarranty of any kind, except as expressly provided in the IP AGREEMENTS. Neither party nor their officers, directors, employees, advisors or\nagents make any representation or warranty as to the accuracy or completeness of any PROPRIETARY INFORMATION which may be furnished\nhereunder, and none of such officers, directors, employees, advisors or agents are authorized to make any such representation or warranty. Neither\nparty nor their officers, directors, employees, advisors or agents shall have any liability to the RECIPIENT or any other person resulting from the use\nof the PROPRIETARY INFORMATION, or any inaccuracy or incompleteness of the PROPRIETARY INFORMATION.\nM. Entire Agreement. This AGREEMENT contains the entire understanding between the parties relative to the protection of PROPRIETARY\nINFORMATION and supersedes all prior and collateral communication, reports, and understanding between the parties in respect thereto. No\nchange, modification, alteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives of\nboth parties.\nN. Binding Effect. This AGREEMENT shall be binding upon each party, its affiliates, respective employees, agents, representative, successors, and\nassigns.\nO. Headings. Paragraph headings are included in this AGREEMENT for purposes of information and ease of use only and shall not be used in\ninterpreting its terms.\nAGREED AND ACCEPTED BY:\nMotorola, Inc.\nIridium Satellite LLC\nTyped\nName:\nTyped\nName:\nBy:\nBy:\nTitle:\nTitle:\nDate:\nDate:\nCONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS THE\nINFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [***]. A COMPLETE VERSION OF\nTHIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\nD-3
+d908ff8d69096e5f441e6c05144de7c7.pdf	effective_date jurisdiction party term	EX-10.23 6 dex1023.htm EMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT - AVI\nKATZ\nExhibit 10.23\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION\nAGREEMENT\nThis Employment, Confidentiality and Non-competition Agreement (this “Agreement”) is made and entered into as of the 1st day of January\n2008, by and between GigOptix LLC, an Idaho limited liability company (herein referred to as “Company”), and Avi Katz (“Employee”).\nA. Effective April 9, 2007, the Company and Employee entered into an Employment, Confidentiality and Non-competition Agreement (“1\nst\nAgreement”) wherein the Employee provided management services to iTerra Communication LLC (“iTerra Communications”).\nB. Under the direction of Employee, iTerra Communications was reorganized and all of its assets were transferred to Company on July 1,\n2007.\nC. Employee and Company desire to terminate the 1st\nAgreement and establish this new Agreement to accommodate Employee’s transfer from\niTerra Communication to GigOptix on July 1, 2007 Furthermore, execution of this Agreement shall terminate the 1st Agreement effective April 9,\n2007 between Employee and Company.\nTherefore, in consideration of the mutual promises and covenants contained in this Agreement, the receipt and legal sufficiency of which\nconsideration are hereby acknowledged, the parties hereby agree as follows:\n1. Term.\na) Term. Company hereby employs Employee on a full time basis to serve as Chief Executive Officer (CEO) & President of the\nCompany effective Monday, July 1st, 2007, subject to the terms and conditions herein.\nb) Duties and Responsibilities. Employee shall report to the Company’s Chairman of the Board and Management Board. The Employee\nshall have each and all of the duties and responsibilities of the CEO & President position, as set forth in Attachment B, which is incorporated\nin its entirety herein, and such other duties on behalf of the Company as may be reasonably assigned, and mutually agreed by and with\nEmployee, from time to time by Company’s Management Board (it being acknowledged by the Company that Employee may terminate this\nAgreement for Good Reason in accordance with Section 4(c) herein in the event he does not so mutually agree).\n2. Employee Performance. Employee accepts employment with Company on the terms and conditions provided in this Agreement. Employee\nrecognizes Employee owes to Company duties of loyalty, fidelity and obedience in all matters pertaining to such employment. Employee shall\nserve Company diligently and faithfully, shall timely perform all duties to the best of Employee’s ability and in compliance with Company’s\nreasonable standards of performance, and shall devote Employee’s time and best efforts to the conduct of Company’s business. Company\nacknowledges that from time to time persons in the High-Tech\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n1\nindustry, in particular, but not limited to, the semiconductor, eCommerce, software and security, and in the real-estate industry, seek\nEmployee’s advice or consultation. Provided that Employee does not disclose Confidential Information to such persons or intentionally act\nagainst Employer’s interests, the Executive may provide such advice or consultation if it does not materially interfere with Executive’s duties\nhereunder.\nNotwithstanding the foregoing, the parties of this Agreement recognize and agree that the Employee may engage in passive personal\ninvestments and other business activities which do not conflict, directly or indirectly, with the business affairs of the Company or interfere with\nEmployee’s performance of Employee’s duties and responsibilities hereunder. In that regard, Employee may serve on the Board(s) of Directors\nor Management Board(s) of up to three (3) external companies of Employee’s choice, unless larger number is approved by the iTerra Board of\nManagement, so long as service on any of such Boards simultaneously with Employee’s service for the Company does not conflict or interfere\nwith performance of Employee’s duties and responsibilities hereunder.\n3. Compensation. In consideration for the services of Employee rendered to Company pursuant to the terms of this Agreement, and subject to\nthe full material performance of Employee’s obligations hereunder, Employee shall receive compensation and benefits as follows:\na) Base Salary. Employee shall be paid a base salary (“Base Salary”) at the annual rate of $300,000, payable in bi-weekly installments\nconsistent with Company’s payroll practices.\nb) Additional Incentive. Effective July 1st\n, 2007, Employee will receive two option grants, one to purchase three hundred and twenty five\nthousand (325,000) Membership Units of GigOptix, and a second to purchase One Million (1,000,000) Membership Units of GigOptix in\naccordance with the Company’s Equity incentive Plan. The exercise price of both grants is $0.10 per unit. Vesting on the options to purchase\n325,000 Membership Units will be based on performance objectives as established by the GigOptix Management Board for the 2007 period\nand Fund raising performance for the 2008 period. This option grant will also include an extension of the 90 days exercise period after\ntermination as defined by the plan to five (5) years in recognition of participation in the 2007 Management Board without compensation.\nVesting on the option to purchase 1,000,000 Membership Units will be pro-rated based on monthly continuous service over four (4) years and\nthe exercise period after termination will be the standard 90 days, unless Management Board will approve different period.\nc) Payment. Payment of all compensation to Employee hereunder shall be made in accordance with the relevant Company policies in\neffect from time to time, including normal payroll practices, and shall be subject to all applicable employment and withholding taxes.\nd) Business Expenses. Upon submission of itemized expense statements in the manner specified by the Company, Employee shall be\nentitled\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n2\nto direct payment and reimbursements for reasonable travel and other reasonable business expenses duly incurred by Employee in the\nperformance of his duties under this Agreement. Acceptable expenses will include, but are not limited to, charges for meals, Company\nemployee or customer entertainment, bridge tolls, lodging, air and ground transportation, cell phone, telephone, computer and broadband\ninternet services provided such are used for business purposes.\ne) Benefits Plans. Employee shall be eligible to participate in the Company’s benefit plans including, but not limited to, medical and\ndental plans, life and disability insurance plans and retirement plans, pursuant to their terms and conditions. Nothing in this Agreement shall\npreclude the Company from terminating or amending any existing employee benefit plan or program from time to time, provided, however, the\nCompany agrees to provide Employee during the term of this Agreement with health, medical, dental, and disability insurance, equivalent in\ncost and benefits to Employee, to that provided Employee as of the date of this Agreement. The Company further agrees it shall be responsible\nfor any additional incremental costs associated with providing such equivalent insurance benefits and will pay, or reimburse Employee for, all\nsuch incremental additional costs.\nf) Vacation. Employee shall be entitled to participate in the Company’s vacation plan and holiday plan, as long as the scheduling of\nEmployee’s vacation does not interfere with the Company’s normal business operations.\n4. Termination of Employment. Termination of employment will be subject to the following terms and conditions.\na) Termination For Cause. Notwithstanding anything herein to the contrary, the Company may terminate Employee’s employment\nhereunder “For Cause” for any one of the following reasons:\ni. The Employee’s willful harmful actions which do or are likely to result in material damage or embarrassment to Company, the\nCompany’s reputation, or the Company’s legitimate business interests;\nii. The Employee’s continued failure to follow the express direction and approved Resolutions of the Company Management\nBoard, following at least 60 days written notice.\niii. Commission of any act of fraud or falsification of any employment or Company records in any material way;\niv. The Employee’s abuse or illegal use of alcohol or other drugs or controlled substances;\nv. The Employee’s material breach of any of the terms or conditions of this Agreement, which breach is not cured within thirty\n(30) days following written notice from Company of such breach;\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n3\nvi. Employee’s conviction of or entry of a guilty plea or plea of no contest with respect to a felony, including theft, embezzlement\nor misappropriation of funds from the Company; or\nvii. Voluntary resignation of the Employee in the absence of Good Reason as defined in Section 4 (c) of this Agreement.\nUpon termination of Employee’s employment with Company For Cause, the Employee shall not be entitled to the Termination Benefits\nin Section 4(d) of this Agreement. Company shall have no further obligation under this Agreement other than payment of accrued but unpaid\nBase Salary, vacation and bonus. [For Cause and Termination Benefits are defined terms.]\nb) Termination Without Cause. The Company may terminate Employee’s employment hereunder at any time without cause, provided,\nhowever, that Employee shall be entitled to the Termination Benefits set forth in Section 4(d) of this Agreement.\nc) Termination for Good Reason. Employee may terminate his employment with the Company for Good Reason (as herein defined). If\nEmployee terminates his employment with the Company for Good Reason (as herein defined), he shall be entitled to the Termination Benefits\nset forth in Section 4(d). For purposes of this Agreement, “Good Reason” shall mean any of the following: (i) any material breach by the\nCompany of this Agreement, which breach is not cured within thirty (30) days following written notice from Employee of such breach; or\n(ii) any significant change in the Employee’s duties and responsibilities, without mutual agreement between Employee and Company.\nd) Termination Benefits. If the Employee is terminated at any time during his employment under the provisions of 4(b) or 4(c), upon\nmutual execution of valid and comprehensive release of any and all claims between them, including an agreement by Company to indemnify,\nhold harmless and defend Employee against any and all existing claims or claims, other than for his gross negligence, fraud, willful\nmisconduct, that may be filed by third parties, including government agencies, naming Employee as a defendant either as an individual or as\nthe President & CEO of the Company, the Employee shall receive “Termination Benefits” as follows:\n1. 500,000 Membership Unit Options of the 1,000,000 Option Grant identified in Section 3(b) herein from the date of termination of\nemployment shall immediately vest and be granted an exercise period of five (5) years. The 500,000 Membership Unit Options subject to\nthis Section 4(d) (1) shall not apply to any Membership Unit Options that have been forfeited in accordance with the Equity Incentive\nPlan and the respective Membership Unit Option Grant Notice and shall be first allocated from any vested Membership Unit Options\nissued under Section 3(c) of this Agreement, and shall then be allocated to any unvested Membership Unit Options issued under\nSection 3(c) of this Agreement;\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n4\n2. One hundred percent (100%) of the remaining 325,000 Membership Unit Option Grants, excluding any Option that have been\nforfeited in accordance with performance objectives, shall immediately vest and be granted an exercise period of five (5) years; and\n3. One time lump-sum payment, equivalent to twelve (12) months Base Salary pursuant to Section 3(a) herein, paid on the date of\ntermination of Employee. This Section 4(d)(3) shall terminate on January 1, 2013.\ne) Cooperation. After notice of termination, Employee shall cooperate with the Company, as reasonably requested by the Company, to\neffect a transition of Employee’s responsibilities and to ensure that the Company is aware of all matters being handled by the Employee.\nf) Disability of Employee. The Company may terminate this Agreement without liability, if Employee shall be permanently prevented\nfrom properly performing his essential duties hereunder with reasonable accommodation by reason of illness or other physical or mental\nincapacity for a period of more than one hundred twenty (120) consecutive days. Upon Employee hire date the Company will obtain a one (1)\nyear Disability insurance policy effective the determined date of disability as described below. Employee will have the opportunity to review\nand acknowledge the Company proposed insurance policy. Upon mutual agreement between Employee and the Company, the Company will\npurchase the mutually agreed one (1) year Disability policy. A medical doctor selected by written agreement of the Employer and the\nEmployee upon the request of either party by notice to the other will determine the disability of Employee. If the Employer and Employee\ncannot agree on the selection of a medical doctor, each of them will select a medical doctor and the two medical doctors will select a third\ndoctor who will determine whether the Employee has a disability. The determination of the medical doctor selected under this Section 4(f) will\nbe binding on both parties. The Employee must submit to a reasonable number of examinations by the medical doctor making the\ndetermination of disability under this Section 4(f), and Employee hereby authorizes the disclosures and release to the Employer of such\ndetermination and all supporting medical records. If the Employee is not legally competent, the Employee’s legal guardian or duly authorized\nattorney-in-fact will act in the Employee’s stead, under this Section 4(f), for the purposes of submitting the Employee to the examinations, and\nproviding the authorization of disclosure, required under this Section 4(f). Upon such termination, Employee shall be entitled to all accrued but\nunpaid Base Salary, accrued bonus (if any) and accrued vacation.\ng) Death of Employee. In the event of the death of Employee, the Company’s obligations hereunder shall be automatically cease and\nterminate; provided, however, that within 15 days the Company shall pay to Employee’s heirs or personal representatives Employee’s accrued\nbut unpaid Base Salary and accrued vacation accrued to the date of death.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n5\n5. Confidential Information.\na) Definition of Confidential Information. The Company has built up an established and extensive trade and reputation in its’ respective\nindustries. The Company has developed and continues to develop commercially valuable technical and non-technical information\n(“Confidential Information”) that is proprietary and confidential and constitutes the Company’s “trade secrets” within the meaning of the Idaho\nTrade Secrets Act, Idaho Code Sections 48-801 - 48-807. Such Confidential Information, which is vital to the success of the Company’s\nbusiness, includes, but is not necessarily limited to: programs, computer programs, system documentation, data compilations, manuals,\nmethods, techniques, processes, patented and/or unpatented technology, research, know-how, development, designs, devices, inventions, the\nidentities of Company’s customers, Company’s suppliers, contracts with suppliers and customers, sales proposals, pricing policies, cost\ninformation, financial information, business plans, specialized requests of Company’s customers, and other materials and documents\ndeveloped by Company. Confidential Information also includes special hardware, product hardware, related software and related\ndocumentation, either owned by Company or in Company’s possession under an agreement of nondisclosure. Through Employee’s\nemployment, Employee may become acquainted with or contribute to the Company’s Confidential Information through inventions,\ndiscoveries, improvements, software development, and/or in other ways. Confidential Information does not include customer names, programs,\nreports or other improvements to documentation, which were owned by Employee prior to being employed by Company. Further, Confidential\nInformation does not include information (i) that was in the public domain at the time of initial disclosure by or enters the public domain\nthereafter through no fault of Employee; (ii) that was already in the possession of Employee at the time of the initial disclosure and not subject\nto any other nondisclosure obligations; (iii) that is independently developed by Employee, outside the term of his employment with the\nCompany, without access to the subject Confidential Information; (iv) that is received by Employee from a third party with no confidential\nrestrictions; or (v) for which disclosure is compelled by a judicial or other governmental order, provided Employee provides Employer with\nprompt notice of such order before disclosure.\nb) Employee Access to Confidential Information. As President & CEO of Company, Employee will need broad access to Company’s\nConfidential Information. Employee agrees that to the extent reasonably possible he will limit access to said Confidential Information under\nhis control only to Company’s other employees whose job functions reasonably necessitate access to such Confidential Information and to\nthird parties only on a need to know basis.\nc) Nondisclosure of Confidential Information. Employee shall not, at any time, either during or subsequent to employment, directly or\nindirectly, appropriate, disclose or divulge any Confidential Information to any person not then employed by Company or any of DBSI’s\naffiliates, unless authorized or directed to do so by Company. Regarding all other third parties, Employee shall use good practices to ensure\nthat a signed confidentiality agreement for the\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n6\nbenefit of Company is or has been obtained from the third party to whom Confidential Information is being disclosed and that all Confidential\nInformation so disclosed is clearly marked “Confidential.”\nd) Return of Confidential and Other Information. All Confidential Information provided to Employee, and all documents and things\nprepared by Employee in the course of Employee’s employment by Company, including but not necessarily limited to correspondence,\ndrawings, blueprints, manuals, letters, notes, lists, notebooks, reports, flow-charts, computer programs, proposals, Day Timers, planners,\ncalendars, schedules, discs, data tapes, financial plans and information, business plans, and other documents and records, whether in hard copy,\nmagnetic media or otherwise, and any and all copies thereof, are the exclusive property of Company and shall be returned immediately to\nCompany upon termination of employment or upon Company’s request at any time.\ne) Ownership of Confidential Information. Employee hereby grants to Company, and Company hereby accepts, the entire right, title, and\ninterest of Employee in and to any of the Confidential Information created or developed by Employee during the term of his employment\n(whether created or developed within or outside the course and scope of Employee’s employment by Company), including, but not limited to,\nall patents, copyrights, trade secrets, and other proprietary rights in or based on the Confidential Information. If the Confidential Information or\nany portion thereof is copyrightable, it shall be deemed to be a “work made for hire,” as such term is defined in the copyright laws of the\nUnited States. Employee shall cooperate with Company or its designees and execute assignments, oaths, declarations, and other documents\nprepared by Company, to effect the terms of this Section 5(e) or to perfect or enforce any proprietary rights resulting from or related to this\nAgreement. Within reason and in accordance with industry practice, such cooperation and execution shall be at no additional compensation to\nEmployee; provided, however, Company shall reimburse Employee for reasonable out-of-pocket expenses incurred at the specific request of\nCompany,\n6. Non-competition Obligations. During Employee’s employment with Company, and for a period of twelve (12) months immediately\nfollowing termination (the “Non-competition Obligation”) of such employment, Employee will not, directly or indirectly, at any place in the\nworld, engage or become interested (as owner, stockholder, partner, director, officer, member, creditor, consultant, or employee) in any\nbusiness in competition with the business conducted by Company at any time during Employee’s employment with Company. Employee\nacknowledges that Company is doing business throughout the world, that Employee is reasonably expected to have contact with Company’s\ncustomers throughout the world during the term of Employee’s employment with Company, and that the worldwide geographic scope of this\ncovenant is reasonably necessary to protect Company’s legitimate business interests.\n7. Customer Non-Solicitation. Employee will not, during the term of employment with Company and for a period of twelve (12) months\nimmediately following termination of employment, solicit, divert, take away from the\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n7\nCompany, or attempt to solicit, divert or take away, any of Company’s customers with related business or the related business or patronage of\nany such customers, either for himself or on behalf of any other person, partnership, corporation or other entity. This restriction against\nsolicitation shall apply only to solicitations, which directly or indirectly compete with the business of the Company that Company is/was\nengaged in while Employee worked for Company.\n8. Co-Emplovee Non-Solicitation. Employee will not, during the term of employment with Company and for a period of twelve (12) months\nfollowing the termination of such employment for any reason, solicit, recruit and hire any other employee of Company, either for himself or on\nbehalf of any other person, partnership, corporation or other entity.\n9. Enforcement.\na) Reasonableness of Restrictions. Employee and Company acknowledges that compliance with this Agreement is reasonable and\nnecessary to protect both parties’ legitimate business interests, including but not limited to both parties’ goodwill.\nb) Irreparable Harm. Employee and Company acknowledges that a breach of either party’s obligations under this Agreement will result\nin great, irreparable and continuing harm and damage to the other party for which there is no adequate remedy at law.\nc) Injunctive Relief. Employee agrees that in the event Employee breaches this Agreement, Company shall be entitled to seek, from any\ncourt of competent jurisdiction, preliminary and permanent injunctive relief to enforce the terms of this Agreement, in addition to any and all\nmonetary damages allowed by law, against Employee. Further, Company agrees that in the event Company breaches this Agreement,\nEmployee shall be entitled to seek, from any court of competent jurisdiction, preliminary and permanent injunctive relief to enforce the terms\nof this Agreement, in addition to any and all monetary damages allowed by law, against Company.\nd) Extension of Covenants. In the event Employee violates any one or more of the covenants contained in Sections 6 through 8 of this\nAgreement, Employee agrees that the running of the term of each covenant so violated shall be tolled during the period(s) of any such violation\nand the pendency of any litigation arising out of any such violation. Further, in the event Company violates any one or more of the covenants\ncontained in Sections 6 through 8 of this Agreement, Company agrees that the running of the term of each covenant so violated shall be tolled\nduring the period(s) of any such violation and the pendency of any litigation arising out of any such violation.\ne) Judicial Modification. The parties have attempted to limit the Employee’s right to compete only to the extent necessary to protect\nCompany from unfair business practices and/or unfair competition. The parties recognize, however, that reasonable people may differ in\nmaking such a determination.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n8\nConsequently, the parties hereby agree that, if the scope or enforceability of the restrictive covenant is in any way disputed at any time, a court\nor other trier of fact may modify and enforce the covenant to the extent that it believes to be reasonable under the circumstances existing at that\ntime.\nf) Attorney Fees. In the event it becomes necessary for either party to this Agreement to institute a suit at law or in equity for the\npurposes of enforcing any of the provisions of this Agreement, the prevailing party shall be entitled to recover said party’s reasonable\nattorney’s fees, plus court costs and expenses, from the non-prevailing party.\ng) Withholding from Final Paycheck. If not prohibited by federal, state or local laws, Employee expressly authorizes Company to\nwithhold and deduct from Employee’s final wages any amounts owed by Employee to Company at the time of the termination of employment,\nincluding but not limited to the value of unreturned or willfully damaged Company property. Employee further expressly agrees to repay to\nCompany any additional agreed-upon sums owed by Employee to Company (above that which can be withheld) immediately upon termination\nof Employee’s employment.\nh) Alternative Dispute Resolution. In the event a dispute between the parties arises under this Agreement, prior to filing an action of any\nkind each Party agrees to mediation of the dispute or disputes and shall participate in good faith. The mediation shall be conducted by a\nprofessional neutral mediator under the Mediation Rules of the American Arbitration Association but not necessarily in that forum.\n10. Indemnity. Employee warrants and represents that Employee has not knowingly and intentionally violated, is not knowingly and\nintentionally violating, and will not knowingly and intentionally violate any of the terms or conditions of any prior employment agreement,\nrestrictive covenant, or other similar agreement entered into by Employee while in the employment of any other company; that Employee has\nnot knowingly and intentionally given and will not knowingly and intentionally give to the Company at any time any customer list, trade\nsecret, or any other item of confidential information, obtained or received while in the employment of any other company in violation of any\nemployment agreement, restrictive covenant or similar agreement entered into while in the employment of any other company; that, to the best\nof Employee’s knowledge. Employee’s employment with the Company as contemplated and provided for hereby is not materially restricted or\nmaterially limited in any way by any such employment agreement or restrictive covenant or by operation of any state, federal or local\nregulation, statute or other law of any kind, name or nature, including but not limited to trade secret laws and immigration laws; and that\nEmployee is in all respects duly qualified and eligible to work for the Company. In the event of a final legal adjudication (after exhausting any\nright of appeal) of Employee’s material violation of one or more of the warranties or representations set forth above in this section, Employee\nagrees to indemnify the Company for all damages, costs and expenses, including reasonable attorney fees, which the Company may have to\npay in connection with a legal or administrative action against the Company or\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n9\nEmployee arising there from; provided, however, in the event any damages, costs and expenses are incurred by the Company for which\nEmployee is otherwise obligated to indemnify the Company are covered under any insurance policy or policies of the Company, then the\nCompany shall be obligated to exhaust all available insurance as a condition to the exercise of its right of indemnification hereunder (and the\nCompany waives all rights of subrogation in connection therewith) and Employee’s indemnification obligation hereunder shall be reduced in\nproportion to the extent of such insurance. Company warrants and represents it has no knowledge as of the date hereof that Employee is or\nmay become in violation of any of the warranties and representations made by him above.\n11. Miscellaneous.\na) Survival. Employee understands that this Agreement shall be effective as of the date first written above and that the terms of this\nAgreement shall remain in full force and effect not only during the continuation of Employee’s employment, but also after the termination of\nemployment for any reason by Company or Employee.\nb) Waiver. Failure of the Company or Employee to exercise or otherwise act with respect to any of its rights under this Agreement shall\nnot be construed as a waiver of any breach, nor prevent the Company or Employee from thereafter enforcing strict compliance with any and all\nterms of this Agreement.\nc) Severability. If any part of this Agreement shall be adjudicated to be invalid or unenforceable, as to duration, territory or otherwise,\nthen such part shall be deemed deleted from this Agreement or amended, as the case may be, in order to render the remainder of this\nAgreement valid and enforceable.\nd) Agreement Binding. This Agreement shall be binding upon and inure to the benefit of Company, Company’s successors and assigns,\nEmployee and Employee’s heirs, executors, administrators and legal representatives.\ne) Governing Law. This Agreement is made and entered into in the State of California, where Company has its principal place of\nbusiness, and concerns employment situated in said state. This Agreement shall be interpreted and construed in accordance with the laws of the\nState of California.\nf) Titles and Captions. All section and paragraph titles and captions contained in this Agreement are for convenience only and shall not\nbe deemed part of the context nor affect the construction or interpretation of this Agreement.\ng) Entire Agreement. This Agreement, which includes all Attachments incorporated herein and attached hereto, contains all the\nunderstandings and agreements between the parties concerning matters set forth in this Agreement. The terms of this Agreement supersede any\nand all prior statements, representations and agreements by or between Company and Employee, or either of them, concerning the matters set\nforth in this Agreement.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n10\nEmployee acknowledges that no person who is an agent or employee of Company may orally or by conduct modify, delete, vary, or contradict\nthe terms or conditions of this Agreement or this paragraph. This Agreement may be modified only by a written agreement signed by both\nparties.\nh) Separate Counsel. Company’s attorneys have not represented Employee, and Employee has been advised that it is important for him\nto seek legal advice and representation in this matter.\nThe parties acknowledge and agree that they have read and understood the entire contents of this Agreement and Employee\nacknowledges that he has received a copy of this Agreement.\nCompany:\nGigOptix LLC,\na California limited liability company\n/s/ Paul Judge\nBy: Paul Judge\nIts: Compensation Committee Member, and Member of\nthe Management Board\nEmployee:\n/s/ Avi Katz\nAvi Katz\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n11\nATTACHMENT “A”\nMANAGEMENT BY OBJECTIVES (MBO’S)\nUpon execution of this Agreement, Employee and Company shall mutually establish and confirm through a Company Management Board\nResolution the following fair and reasonable goals (MBO’s) which, when met, shall remove restrictions on certain Company Membership Units,\nrelated in Section 3(b) of this Employment, Confidentiality and Non-Competition Agreement:\n•\n250,000 Restricted Membership Unit grants with 2007 MBO and grant restrictions to be mutually determined between the Management\nBoard and Employee.\n•\n75,000 restricted Membership Unit grants with completion of fund raising, with Management Board approval, during 2007 & 2008,\nwhich does not include the 2007 approved Financial Plan or funds approved in association with the acquisition of Helix AG.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n12\nATTACHMENT “B”\nCEO & President Duties and Responsibilities\n1. Employee shall report directly to Company’s Management Board. Employee shall own all responsibilities for leading, planning, driving and\nexecuting all vision and business initiatives of the Company, working under the general directions and guidelines of the Board which will make\nassignments in terms of broadly defined missions.\n2. Employee shall provide leadership, experience and corporate governance required to transform the vision and product offerings of Company into a\ngrowing profitable business with the goal of maximizing’ ROI.\n3. Employee’s key responsibilities include:\na. The initial responsibility of Employee is to immediately commence an assessment of the viability of the Company and the likelihood of\nfuture growth under the current or other strategic plans, based on the quality and differentiation of its technology, and the preparation of a\nrecommendation to the Board to proceed toward fund raising and growth or other potential plans in the best interest of the Company’s Members.\nb. If the Board determines the direction the Company shall take under the MBO’s above, Employee shall develop a new business model\naccordingly, such as to execute the transition from a customer NRE-focus company to a company with a product portfolio focused on profitable\nreoccurring product revenue.\nc. In any decision scenario, Employee shall develop clear and precise business plans with appropriate strategies, objectives, initiatives, and\nindicator measurements. He shall maintain focus and guide the Company’s employees to consistent execution of approved business plans, as\napproved by the Board, reporting to the Board both quarterly and annually.\nd. Employee shall be responsible for building a strong, professional and highly motivated Executive Team, including new executives, with\nBoard involvements and approval, all of whom are capable of contributing to the Company goal of sustained and profitable growth.\ne. Employee shall articulate and implement the Company’s vision to create a business plan, goals, and objectives that will evolve with\ncontinued growth of profitability by balancing technical and business resources.\nf. Employee shall lead Company toward the achievement of aggressive sales growth targets for 2007, 2008 and beyond by rapidly penetrating\ntarget customer accounts and markets while establishing competitive barriers for entry, producing a product roadmap and driving new product and\ntechnology introductions to address expanding market opportunities using strong domestic and international industry relationships as leverage into\nsales, particularly with line card providers and system integrators, as well as with OEM partners.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n13\ng. Employee shall seek adequate funding sufficient to meet Company objectives: to grow the business, as per mutually agreed upon guidelines\nbetween the Employee and the Board. The employee will work with the current investors to lead a broad and successful fund raising process.\nh. Employee shall develop Business Plans with measurable initiatives and strategies that are aligned. These Business Plans will be\nprofessionally presented to the Board, and in some cases involve the Board prior to presentation, for formal Board approval. The Board for\nconsistent execution of approved Business Plans, relative initiatives, and MBO’s will hold Employee and his team accountable. Employee will be\npro-active involving the Board when Business Plans appear not to be achieved and thus developing a new course of execution pro-actively and\nachieve Board approval of revised Business Plans.\ni. Employee shall build a company culture of excellence based on performance, integrity, accountability, customer service, teamwork, candor\nand respect for others (Live, Love, Learn, Leave a Legacy).\nj. Employee shall seek to expand Company’s intellectual property portfolio, and secure all existing IP. He will also work with the investor ’s\nlegal department to secure existing IP under appropriate patents, and to survey the IP market for potential infringements on the company’s IP, as well\nas potential infringements of the company on existing IP.\nk. Help to expand and strengthen the Board by recommending and recruiting, with the Board, new members including representatives of\nindustry and the relevant professions.\nl. Work with the Board to develop valuation strategies, which would achieve a value return to investors and shareholders.\nThis CEO & President Duties and Responsibilities are considered a “working document” that may change from time to time and in such event will\nbe documented and mutually agreed between Employee and Board.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n14\nGIGOPTIX LLC\nEQUITY INCENTIVE PLAN\nOPTION GRANT NOTICE\nGigOptix LLC, (the “Company”) pursuant to its Equity Incentive Plan (the “Plan”), hereby grants to Optionholder an option to purchase the number\nof the Company’s Units set forth below. This option is subject to all of the terms and conditions as set forth herein and in the Unit Option\nAgreement, the Plan, the Notice of Exercise and the Company’s Operating Agreement (the “Operating Agreement”). The Unit Option Agreement,\nthe Plan, the Notice of Exercise and the Operating Agreement are attached hereto and incorporated herein their entirety.\nOptionholder:\nAvi Katz\nDate of Grant:\nAugust 1, 2007\nDate Option Rights are Terminated if Not Exercised*:\nAugust 1, 2017\nNumber of Units Subject to Option:\n1,000,000\nExercise Price (Per Unit):\n$0.10\nTotal Exercise Price:\nOne Hundred Thousand Dollars ($100,000)\nExercise Schedule:\nSame as Vesting Schedule\nVesting Schedule: Options vest at the rate of 1/4 the first year based on the anniversary of the Grant date and at a rate of one thirty-sixth ( 1 /36) of the\nremaining units per month over the remaining three years.\nDate of Vesting\nNumber of Unit Options that can be Exercised\nAugust 1, 2008\n250,000\nFirst of each month thereafter through December 31, 2011\nContact your Plan Administrator for your current vested amount\n* Option may terminate on earlier events, such as termination of Continuous Service, Optionholder’s Disability or Death. See the Unit Option\nAgreement and the Plan for further details.\nPayment: By cash or check\nConfidentiality: The undersigned Optionholder acknowledges and agrees that the information contained in this Option Grant Notice shall remain\nconfidential and Optionholder shall not divulge or reveal, either directly or indirectly, the amount or extent of equity or options granted herein or any\nother material term to any other co-worker, employee or third party (other than a license professional advisor) without the express written consent of\nthe Company. Any breach of this confidentiality agreement may result in complete forfeiture of the option or equity.\nAdditional Terms/Acknowledgments: Options shall not be exercised prior to January 1, 2008. The undersigned Optionholder acknowledges\nreceipt of, and understands and agrees to, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating Agreement.\nOptionholder further acknowledges that as of the Date of Grant, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating\nAgreement set forth the entire understanding between the Optionholder and the Company regarding the purchase of Units in the Company.\nOptionholder also agrees to execute all such further documentation as the Board of Managers may reasonably require.\nGIGOPTIX LLC:\nOPTIONHOLDER:\nBy: /s/ Paul F. Judge\nDate: 3/26/08\n/s/ Avi Katz\nDate: 3/26/08\nPaul F. Judge, Management Board Member\n(Name)\nATTACHMENTS: Unit Option Agreement, Plan, Notice of Exercise, Operating Agreement and Memorandum to Plan Participants.\nGIGOPTIX LLC\nEQUITY INCENTIVE PLAN\nOPTION GRANT NOTICE\nGigOptix LLC, (the “Company”) pursuant to its Equity Incentive Plan (the “Plan”), hereby grants to Optionholder an option to purchase the number\nof the Company’s Units set forth below. This option is subject to all of the terms and conditions as set forth herein and in the Unit Option\nAgreement, the Plan, the Notice of Exercise and the Company’s Operating Agreement (the “Operating Agreement”). The Unit Option Agreement,\nthe Plan, the Notice of Exercise and the Operating Agreement are attached hereto and incorporated herein their entirety.\nOptionholder:\nAvi Katz\nDate of Grant:\nAugust 1, 2007\nDate Option Rights are Terminated if Not Exercised*:\nAugust 1, 2017\nNumber of Units Subject to Option:\n325,000\nExercise Price (Per Unit):\n$0.10\nTotal Exercise Price:\nThirty Two Thousand Five Hundred Dollars ($32,500)\nExercise Schedule:\nSame as Vesting Schedule except that no units can be exercised prior\nto January 1, 2008.\nExercise Term:\nIn the event the Optionholder’s Continuous Service Terminates, the\nOptionholder may exercise his or her vested Options but only within\nsuch period of time ending on the earlier of (i) the date five years\nfollowing termination of the Optionholders Continuous Service, or\n(ii) the expiration of the term of the Option as set forth in this Option\nGrant.\nVesting Schedule: Options vesting is based on performance as governed by the GigOptix Management Board.\nDate of Vesting\nNumber of Unit Options that can be Exercised\nAugust 1, 2007\n250,000**\nTBD (effective on completion date)\nAn additional 75,000 eligible for vesting, based on successfully completing a\nfunding event as governed by GigOptix Management Board.\n*\nOption may terminate on earlier events, such as termination of Continuous Service, Optionholder’s Disability or Death. See the Unit Option\nAgreement and the Plan for further details.\n**\nMay only be exercised after January 1, 2008.\nPayment: By cash or check\nConfidentiality: The undersigned Optionholder acknowledges and agrees that the information contained in this Option Grant Notice shall remain\nconfidential and Optionholder shall not divulge or reveal, either directly or indirectly, the amount or extent of equity or options granted herein or any\nother material term to any other co-worker, employee or third party (other than a license professional advisor) without the express written consent of\nthe Company. Any breach of this confidentiality agreement may result in complete forfeiture of the option or equity.\nAdditional Terms/Acknowledgments: Options shall not be exercised prior to January 1, 2008. The undersigned Optionholder acknowledges\nreceipt of, and understands and agrees to, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating Agreement.\nOptionholder further acknowledges that as of the Date of Grant, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating\nAgreement set forth the entire understanding between the Optionholder and the Company regarding the purchase of Units in the Company.\nOptionholder also agrees to execute all such further documentation as the Board of Managers may reasonably require.\nGIGOPTIX LLC:\nOPTIONHOLDER:\nBy: /s/ Paul F. Judge\nDate: 3/26/08\n/s/ Avi Katz\nDate: 3/26/08\nPaul F. Judge, Management Board Member\n(Name)\nATTACHMENTS: Unit Option Agreement, Plan, Notice of Exercise, Operating Agreement and Memorandum to Plan Participants.	EX-10.23 6 dex1023.htm EMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT - AVI\nKATZ\nExhibit 10.23\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION\nAGREEMENT\nThis Employment, Confidentiality and Non-competition Agreement (this “Agreement”) is made and entered into as of the 1st day of January\n2008, by and between GigOptix LLC, an Idaho limited liability company (herein referred to as “Company”), and Avi Katz (“Employee”).\nA. Effective April 9, 2007, the Company and Employee entered into an Employment, Confidentiality and Non-competition Agreement (“1st\nAgreement”) wherein the Employee provided management services to iTerra Communication LLC (“iTerra Communications”).\nB. Under the direction of Employee, iTerra Communications was reorganized and all of its assets were transferred to Company on July 1,\n2007.\nC. Employee and Company desire to terminate the 1% Agreement and establish this new Agreement to accommodate Employee’s transfer from\niTerra Communication to GigOptix on July 1, 2007 Furthermore, execution of this Agreement shall terminate the 15t Agreement effective April 9,\n2007 between Employee and Company.\nTherefore, in consideration of the mutual promises and covenants contained in this Agreement, the receipt and legal sufficiency of which\nconsideration are hereby acknowledged, the parties hereby agree as follows:\n1. Term.\na) Term. Company hereby employs Employee on a full time basis to serve as Chief Executive Officer (CEO) & President of the\nCompany effective Monday, July 1st, 2007, subject to the terms and conditions herein.\nb) Duties and Responsibilities. Employee shall report to the Company’s Chairman of the Board and Management Board. The Employee\nshall have each and all of the duties and responsibilities of the CEO & President position, as set forth in Attachment B, which is incorporated\nin its entirety herein, and such other duties on behalf of the Company as may be reasonably assigned, and mutually agreed by and with\nEmployee, from time to time by Company’s Management Board (it being acknowledged by the Company that Employee may terminate this\nAgreement for Good Reason in accordance with Section 4(c) herein in the event he does not so mutually agree).\n2. Employee Performance. Employee accepts employment with Company on the terms and conditions provided in this Agreement. Employee\nrecognizes Employee owes to Company duties of loyalty, fidelity and obedience in all matters pertaining to such employment. Employee shall\nserve Company diligently and faithfully, shall timely perform all duties to the best of Employee’s ability and in compliance with Company’s\nreasonable standards of performance, and shall devote Employee’s time and best efforts to the conduct of Company’s business. Company\nacknowledges that from time to time persons in the High-Tech\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 1\nindustry, in particular, but not limited to, the semiconductor, eCommerce, software and security, and in the real-estate industry, seek\nEmployee’s advice or consultation. Provided that Employee does not disclose Confidential Information to such persons or intentionally act\nagainst Employer’s interests, the Executive may provide such advice or consultation if it does not materially interfere with Executive’s duties\nhereunder.\nNotwithstanding the foregoing, the parties of this Agreement recognize and agree that the Employee may engage in passive personal\ninvestments and other business activities which do not conflict, directly or indirectly, with the business affairs of the Company or interfere with\nEmployee’s performance of Employee’s duties and responsibilities hereunder. In that regard, Employee may serve on the Board(s) of Directors\nor Management Board(s) of up to three (3) external companies of Employee’s choice, unless larger number is approved by the iTerra Board of\nManagement, so long as service on any of such Boards simultaneously with Employee’s service for the Company does not conflict or interfere\nwith performance of Employee’s duties and responsibilities hereunder.\n3. Compensation. In consideration for the services of Employee rendered to Company pursuant to the terms of this Agreement, and subject to\nthe full material performance of Employee’s obligations hereunder, Employee shall receive compensation and benefits as follows:\na) Base Salary. Employee shall be paid a base salary (“Base Salary”) at the annual rate of $300,000, payable in bi-weekly installments\nconsistent with Company’s payroll practices.\nb) Additional Incentive. Effective July 1%, 2007, Employee will receive two option grants, one to purchase three hundred and twenty five\nthousand (325,000) Membership Units of GigOptix, and a second to purchase One Million (1,000,000) Membership Units of GigOptix in\naccordance with the Company’s Equity incentive Plan. The exercise price of both grants is $0.10 per unit. Vesting on the options to purchase\n325,000 Membership Units will be based on performance objectives as established by the GigOptix Management Board for the 2007 period\nand Fund raising performance for the 2008 period. This option grant will also include an extension of the 90 days exercise period after\ntermination as defined by the plan to five (5) years in recognition of participation in the 2007 Management Board without compensation.\nVesting on the option to purchase 1,000,000 Membership Units will be pro-rated based on monthly continuous service over four (4) years and\nthe exercise period after termination will be the standard 90 days, unless Management Board will approve different period.\nc) Payment. Payment of all compensation to Employee hereunder shall be made in accordance with the relevant Company policies in\neffect from time to time, including normal payroll practices, and shall be subject to all applicable employment and withholding taxes.\n \nd) Business Expenses. Upon submission of itemized expense statements in the manner specified by the Company, Employee shall be\nentitled\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 2\nto direct payment and reimbursements for reasonable travel and other reasonable business expenses duly incurred by Employee in the\nperformance of his duties under this Agreement. Acceptable expenses will include, but are not limited to, charges for meals, Company\nemployee or customer entertainment, bridge tolls, lodging, air and ground transportation, cell phone, telephone, computer and broadband\ninternet services provided such are used for business purposes.\ne) Benefits Plans. Employee shall be eligible to participate in the Company’s benefit plans including, but not limited to, medical and\ndental plans, life and disability insurance plans and retirement plans, pursuant to their terms and conditions. Nothing in this Agreement shall\npreclude the Company from terminating or amending any existing employee benefit plan or program from time to time, provided, however, the\nCompany agrees to provide Employee during the term of this Agreement with health, medical, dental, and disability insurance, equivalent in\ncost and benefits to Employee, to that provided Employee as of the date of this Agreement. The Company further agrees it shall be responsible\nfor any additional incremental costs associated with providing such equivalent insurance benefits and will pay, or reimburse Employee for, all\nsuch incremental additional costs.\nf) Vacation. Employee shall be entitled to participate in the Company’s vacation plan and holiday plan, as long as the scheduling of\nEmployee’s vacation does not interfere with the Company’s normal business operations.\n4. Termination of Employment. Termination of employment will be subject to the following terms and conditions.\na) Termination For Cause. Notwithstanding anything herein to the contrary, the Company may terminate Employee’s employment\nhereunder “For Cause” for any one of the following reasons:\ni. The Employee’s willful harmful actions which do or are likely to result in material damage or embarrassment to Company, the\nCompany’s reputation, or the Company’s legitimate business interests;\nii. The Employee’s continued failure to follow the express direction and approved Resolutions of the Company Management\nBoard, following at least 60 days written notice.\niii. Commission of any act of fraud or falsification of any employment or Company records in any material way;\niv. The Employee’s abuse or illegal use of alcohol or other drugs or controlled substances;\nv. The Employee’s material breach of any of the terms or conditions of this Agreement, which breach is not cured within thirty\n(30) days following written notice from Company of such breach;\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 3\nvi. Employee’s conviction of or entry of a guilty plea or plea of no contest with respect to a felony, including theft, embezzlement\nor misappropriation of funds from the Company; or\nvii. Voluntary resignation of the Employee in the absence of Good Reason as defined in Section 4 (c) of this Agreement.\nUpon termination of Employee’s employment with Company For Cause, the Employee shall not be entitled to the Termination Benefits\nin Section 4(d) of this Agreement. Company shall have no further obligation under this Agreement other than payment of accrued but unpaid\nBase Salary, vacation and bonus. [For Cause and Termination Benefits are defined terms.]\nb) Termination Without Cause. The Company may terminate Employee’s employment hereunder at any time without cause, provided,\nhowever, that Employee shall be entitled to the Termination Benefits set forth in Section 4(d) of this Agreement.\nc) Termination for Good Reason. Employee may terminate his employment with the Company for Good Reason (as herein defined). If\nEmployee terminates his employment with the Company for Good Reason (as herein defined), he shall be entitled to the Termination Benefits\nset forth in Section 4(d). For purposes of this Agreement, “Good Reason” shall mean any of the following: (i) any material breach by the\nCompany of this Agreement, which breach is not cured within thirty (30) days following written notice from Employee of such breach; or\n(ii) any significant change in the Employee’s duties and responsibilities, without mutual agreement between Employee and Company.\nd) Termination Benefits. If the Employee is terminated at any time during his employment under the provisions of 4(b) or 4(c), upon\nmutual execution of valid and comprehensive release of any and all claims between them, including an agreement by Company to indemnify,\nhold harmless and defend Employee against any and all existing claims or claims, other than for his gross negligence, fraud, willful\nmisconduct, that may be filed by third parties, including government agencies, naming Employee as a defendant either as an individual or as\nthe President & CEO of the Company, the Employee shall receive “Termination Benefits” as follows:\n1. 500,000 Membership Unit Options of the 1,000,000 Option Grant identified in Section 3(b) herein from the date of termination of\nemployment shall immediately vest and be granted an exercise period of five (5) years. The 500,000 Membership Unit Options subject to\nthis Section 4(d) (1) shall not apply to any Membership Unit Options that have been forfeited in accordance with the Equity Incentive\nPlan and the respective Membership Unit Option Grant Notice and shall be first allocated from any vested Membership Unit Options\nissued under Section 3(c) of this Agreement, and shall then be allocated to any unvested Membership Unit Options issued under\nSection 3(c) of this Agreement;\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 4\n2. One hundred percent (100%) of the remaining 325,000 Membership Unit Option Grants, excluding any Option that have been\nforfeited in accordance with performance objectives, shall immediately vest and be granted an exercise period of five (5) years; and\n3. One time lump-sum payment, equivalent to twelve (12) months Base Salary pursuant to Section 3(a) herein, paid on the date of\ntermination of Employee. This Section 4(d)(3) shall terminate on January 1, 2013.\ne) Cooperation. After notice of termination, Employee shall cooperate with the Company, as reasonably requested by the Company, to\neffect a transition of Employee’s responsibilities and to ensure that the Company is aware of all matters being handled by the Employee.\n \nf) Disability of Employee. The Company may terminate this Agreement without liability, if Employee shall be permanently prevented\nfrom properly performing his essential duties hereunder with reasonable accommodation by reason of illness or other physical or mental\nincapacity for a period of more than one hundred twenty (120) consecutive days. Upon Employee hire date the Company will obtain a one (1)\nyear Disability insurance policy effective the determined date of disability as described below. Employee will have the opportunity to review\nand acknowledge the Company proposed insurance policy. Upon mutual agreement between Employee and the Company, the Company will\npurchase the mutually agreed one (1) year Disability policy. A medical doctor selected by written agreement of the Employer and the\nEmployee upon the request of either party by notice to the other will determine the disability of Employee. If the Employer and Employee\ncannot agree on the selection of a medical doctor, each of them will select a medical doctor and the two medical doctors will select a third\ndoctor who will determine whether the Employee has a disability. The determination of the medical doctor selected under this Section 4(f) will\nbe binding on both parties. The Employee must submit to a reasonable number of examinations by the medical doctor making the\ndetermination of disability under this Section 4(f), and Employee hereby authorizes the disclosures and release to the Employer of such\ndetermination and all supporting medical records. If the Employee is not legally competent, the Employee’s legal guardian or duly authorized\nattorney-in-fact will act in the Employee’s stead, under this Section 4(f), for the purposes of submitting the Employee to the examinations, and\nproviding the authorization of disclosure, required under this Section 4(f). Upon such termination, Employee shall be entitled to all accrued but\nunpaid Base Salary, accrued bonus (if any) and accrued vacation.\ng) Death of Employee. In the event of the death of Employee, the Company’s obligations hereunder shall be automatically cease and\nterminate; provided, however, that within 15 days the Company shall pay to Employee’s heirs or personal representatives Employee’s accrued\nbut unpaid Base Salary and accrued vacation accrued to the date of death.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 5\n5. Confidential Information.\na) Definition of Confidential Information. The Company has built up an established and extensive trade and reputation in its’ respective\nindustries. The Company has developed and continues to develop commercially valuable technical and non-technical information\n(“Confidential Information™) that is proprietary and confidential and constitutes the Company’s “trade secrets” within the meaning of the Idaho\nTrade Secrets Act, Idaho Code Sections 48-801 - 48-807. Such Confidential Information, which is vital to the success of the Company’s\nbusiness, includes, but is not necessarily limited to: programs, computer programs, system documentation, data compilations, manuals,\nmethods, techniques, processes, patented and/or unpatented technology, research, know-how, development, designs, devices, inventions, the\nidentities of Company’s customers, Company’s suppliers, contracts with suppliers and customers, sales proposals, pricing policies, cost\ninformation, financial information, business plans, specialized requests of Company’s customers, and other materials and documents\ndeveloped by Company. Confidential Information also includes special hardware, product hardware, related software and related\ndocumentation, either owned by Company or in Company’s possession under an agreement of nondisclosure. Through Employee’s\nemployment, Employee may become acquainted with or contribute to the Company’s Confidential Information through inventions,\ndiscoveries, improvements, software development, and/or in other ways. Confidential Information does not include customer names, programs,\nreports or other improvements to documentation, which were owned by Employee prior to being employed by Company. Further, Confidential\nInformation does not include information (i) that was in the public domain at the time of initial disclosure by or enters the public domain\nthereafter through no fault of Employee; (ii) that was already in the possession of Employee at the time of the initial disclosure and not subject\nto any other nondisclosure obligations; (iii) that is independently developed by Employee, outside the term of his employment with the\nCompany, without access to the subject Confidential Information; (iv) that is received by Employee from a third party with no confidential\nrestrictions; or (v) for which disclosure is compelled by a judicial or other governmental order, provided Employee provides Employer with\nprompt notice of such order before disclosure.\nb) Employee Access to Confidential Information. As President & CEO of Company, Employee will need broad access to Company’s\nConfidential Information. Employee agrees that to the extent reasonably possible he will limit access to said Confidential Information under\nhis control only to Company’s other employees whose job functions reasonably necessitate access to such Confidential Information and to\nthird parties only on a need to know basis.\n) Nondisclosure of Confidential Information. Employee shall not, at any time, either during or subsequent to employment, directly or\nindirectly, appropriate, disclose or divulge any Confidential Information to any person not then employed by Company or any of DBSI’s\naffiliates, unless authorized or directed to do so by Company. Regarding all other third parties, Employee shall use good practices to ensure\nthat a signed confidentiality agreement for the\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 6\nbenefit of Company is or has been obtained from the third party to whom Confidential Information is being disclosed and that all Confidential\nInformation so disclosed is clearly marked “Confidential.”\nd) Return of Confidential and Other Information. All Confidential Information provided to Employee, and all documents and things\nprepared by Employee in the course of Employee’s employment by Company, including but not necessarily limited to correspondence,\ndrawings, blueprints, manuals, letters, notes, lists, notebooks, reports, flow-charts, computer programs, proposals, Day Timers, planners,\ncalendars, schedules, discs, data tapes, financial plans and information, business plans, and other documents and records, whether in hard copy,\nmagnetic media or otherwise, and any and all copies thereof, are the exclusive property of Company and shall be returned immediately to\nCompany upon termination of employment or upon Company’s request at any time.\ne) Ownership of Confidential Information. Employee hereby grants to Company, and Company hereby accepts, the entire right, title, and\ninterest of Employee in and to any of the Confidential Information created or developed by Employee during the term of his employment\n(whether created or developed within or outside the course and scope of Employee’s employment by Company), including, but not limited to,\nall patents, copyrights, trade secrets, and other proprietary rights in or based on the Confidential Information. If the Confidential Information or\nany portion thereof is copyrightable, it shall be deemed to be a “work made for hire,” as such term is defined in the copyright laws of the\nUnited States. Employee shall cooperate with Company or its designees and execute assignments, oaths, declarations, and other documents\nprepared by Company, to effect the terms of this Section 5(e) or to perfect or enforce any proprietary rights resulting from or related to this\nAgreement. Within reason and in accordance with industry practice, such cooperation and execution shall be at no additional compensation to\nEmployee; provided, however, Company shall reimburse Employee for reasonable out-of-pocket expenses incurred at the specific request of\nCompany,\n6. Non-competition Obligations. During Employee’s employment with Company, and for a period of twelve (12) months immediately\nfollowing termination (the “Non-competition Obligation”) of such employment, Employee will not, directly or indirectly, at any place in the\nworld, engage or become interested (as owner, stockholder, partner, director, officer, member, creditor, consultant, or employee) in any\nbusiness in competition with the business conducted by Company at any time during Employee’s employment with Company. Employee\nacknowledges that Company is doing business throughout the world, that Employee is reasonably expected to have contact with Company’s\ncustomers throughout the world during the term of Employee’s employment with Company, and that the worldwide geographic scope of this\ncovenant is reasonably necessary to protect Company’s legitimate business interests.\n \n7. Customer Non-Solicitation. Employee will not, during the term of employment with Company and for a period of twelve (12) months\nimmediately following termination of employment, solicit, divert, take away from the\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 7\nCompany, or attempt to solicit, divert or take away, any of Company’s customers with related business or the related business or patronage of\nany such customers, either for himself or on behalf of any other person, partnership, corporation or other entity. This restriction against\nsolicitation shall apply only to solicitations, which directly or indirectly compete with the business of the Company that Company is/was\nengaged in while Employee worked for Company.\n8. Co-Emplovee Non-Solicitation. Employee will not, during the term of employment with Company and for a period of twelve (12) months\nfollowing the termination of such employment for any reason, solicit, recruit and hire any other employee of Company, either for himself or on\nbehalf of any other person, partnership, corporation or other entity.\n9. Enforcement.\na) Reasonableness of Restrictions. Employee and Company acknowledges that compliance with this Agreement is reasonable and\nnecessary to protect both parties’ legitimate business interests, including but not limited to both parties’ goodwill.\nb) Irreparable Harm. Employee and Company acknowledges that a breach of either party’s obligations under this Agreement will result\nin great, irreparable and continuing harm and damage to the other party for which there is no adequate remedy at law.\nc) Injunctive Relief. Employee agrees that in the event Employee breaches this Agreement, Company shall be entitled to seek, from any\ncourt of competent jurisdiction, preliminary and permanent injunctive relief to enforce the terms of this Agreement, in addition to any and all\nmonetary damages allowed by law, against Employee. Further, Company agrees that in the event Company breaches this Agreement,\nEmployee shall be entitled to seek, from any court of competent jurisdiction, preliminary and permanent injunctive relief to enforce the terms\nof this Agreement, in addition to any and all monetary damages allowed by law, against Company.\nd) Extension of Covenants. In the event Employee violates any one or more of the covenants contained in Sections 6 through 8 of this\nAgreement, Employee agrees that the running of the term of each covenant so violated shall be tolled during the period(s) of any such violation\nand the pendency of any litigation arising out of any such violation. Further, in the event Company violates any one or more of the covenants\ncontained in Sections 6 through 8 of this Agreement, Company agrees that the running of the term of each covenant so violated shall be tolled\nduring the period(s) of any such violation and the pendency of any litigation arising out of any such violation.\ne) Judicial Modification. The parties have attempted to limit the Employee’s right to compete only to the extent necessary to protect\nCompany from unfair business practices and/or unfair competition. The parties recognize, however, that reasonable people may differ in\nmaking such a determination.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 8\nConsequently, the parties hereby agree that, if the scope or enforceability of the restrictive covenant is in any way disputed at any time, a court\nor other trier of fact may modify and enforce the covenant to the extent that it believes to be reasonable under the circumstances existing at that\ntime.\nf) Attorney Fees. In the event it becomes necessary for either party to this Agreement to institute a suit at law or in equity for the\npurposes of enforcing any of the provisions of this Agreement, the prevailing party shall be entitled to recover said party’s reasonable\nattorney’s fees, plus court costs and expenses, from the non-prevailing party.\n \ng) Withholding from Final Paycheck. If not prohibited by federal, state or local laws, Employee expressly authorizes Company to\nwithhold and deduct from Employee’s final wages any amounts owed by Employee to Company at the time of the termination of employment,\nincluding but not limited to the value of unreturned or willfully damaged Company property. Employee further expressly agrees to repay to\nCompany any additional agreed-upon sums owed by Employee to Company (above that which can be withheld) immediately upon termination\nof Employee’s employment.\nh) Alternative Dispute Resolution. In the event a dispute between the parties arises under this Agreement, prior to filing an action of any\nkind each Party agrees to mediation of the dispute or disputes and shall participate in good faith. The mediation shall be conducted by a\nprofessional neutral mediator under the Mediation Rules of the American Arbitration Association but not necessarily in that forum.\n10. Indemnity. Employee warrants and represents that Employee has not knowingly and intentionally violated, is not knowingly and\nintentionally violating, and will not knowingly and intentionally violate any of the terms or conditions of any prior employment agreement,\nrestrictive covenant, or other similar agreement entered into by Employee while in the employment of any other company; that Employee has\nnot knowingly and intentionally given and will not knowingly and intentionally give to the Company at any time any customer list, trade\nsecret, or any other item of confidential information, obtained or received while in the employment of any other company in violation of any\nemployment agreement, restrictive covenant or similar agreement entered into while in the employment of any other company; that, to the best\nof Employee’s knowledge. Employee’s employment with the Company as contemplated and provided for hereby is not materially restricted or\nmaterially limited in any way by any such employment agreement or restrictive covenant or by operation of any state, federal or local\nregulation, statute or other law of any kind, name or nature, including but not limited to trade secret laws and immigration laws; and that\nEmployee is in all respects duly qualified and eligible to work for the Company. In the event of a final legal adjudication (after exhausting any\nright of appeal) of Employee’s material violation of one or more of the warranties or representations set forth above in this section, Employee\nagrees to indemnify the Company for all damages, costs and expenses, including reasonable attorney fees, which the Company may have to\npay in connection with a legal or administrative action against the Company or\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 9\nEmployee arising there from; provided, however, in the event any damages, costs and expenses are incurred by the Company for which\nEmployee is otherwise obligated to indemnify the Company are covered under any insurance policy or policies of the Company, then the\nCompany shall be obligated to exhaust all available insurance as a condition to the exercise of its right of indemnification hereunder (and the\nCompany waives all rights of subrogation in connection therewith) and Employee’s indemnification obligation hereunder shall be reduced in\nproportion to the extent of such insurance. Company warrants and represents it has no knowledge as of the date hereof that Employee is or\nmay become in violation of any of the warranties and representations made by him above.\n11. Miscellaneous.\na) Survival. Employee understands that this Agreement shall be effective as of the date first written above and that the terms of this\nAgreement shall remain in full force and effect not only during the continuation of Employee’s employment, but also after the termination of\nemployment for any reason by Company or Employee.\nb) Waiver. Failure of the Company or Employee to exercise or otherwise act with respect to any of its rights under this Agreement shall\nnot be construed as a waiver of any breach, nor prevent the Company or Employee from thereafter enforcing strict compliance with any and all\nterms of this Agreement.\n \nc) Severability. If any part of this Agreement shall be adjudicated to be invalid or unenforceable, as to duration, territory or otherwise,\nthen such part shall be deemed deleted from this Agreement or amended, as the case may be, in order to render the remainder of this\nAgreement valid and enforceable.\nd) Agreement Binding. This Agreement shall be binding upon and inure to the benefit of Company, Company’s successors and assigns,\nEmployee and Employee’s heirs, executors, administrators and legal representatives.\ne) Governing Law. This Agreement is made and entered into in the State of California, where Company has its principal place of\nbusiness, and concerns employment situated in said state. This Agreement shall be interpreted and construed in accordance with the laws of the\nState of California.\nf) Titles and Captions. All section and paragraph titles and captions contained in this Agreement are for convenience only and shall not\nbe deemed part of the context nor affect the construction or interpretation of this Agreement.\n \ng) Entire Agreement. This Agreement, which includes all Attachments incorporated herein and attached hereto, contains all the\nunderstandings and agreements between the parties concerning matters set forth in this Agreement. The terms of this Agreement supersede any\nand all prior statements, representations and agreements by or between Company and Employee, or either of them, concerning the matters set\nforth in this Agreement.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 10\nEmployee acknowledges that no person who is an agent or employee of Company may orally or by conduct modify, delete, vary, or contradict the terms or conditions of this Agreement or this paragraph. This Agreement may be modified only by a written agreement signed by both parties.\nh) Separate Counsel. Company’s attorneys have not represented Employee, and Employee has been advised that it is important for him to seek legal advice and representation in this matter.\nThe parties acknowledge and agree that they have read and understood the entire contents of this Agreement and Employee acknowledges that he has received a copy of this Agreement.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nCompany:\nGigOptix LLC,\na California limited liability company\n/s/ Paul Judge\nBy: Paul Judge\nIts: Compensation Committee Member, and Member of\nthe Management Board\nEmployee:\n/s/ Avi Katz\nAvi Katz\n11\nATTACHMENT “A”\nMANAGEMENT BY OBJECTIVES (MBO’S)\nUpon execution of this Agreement, Employee and Company shall mutually establish and confirm through a Company Management Board\nResolution the following fair and reasonable goals (MBO’s) which, when met, shall remove restrictions on certain Company Membership Units,\nrelated in Section 3(b) of this Employment, Confidentiality and Non-Competition Agreement:\n* 250,000 Restricted Membership Unit grants with 2007 MBO and grant restrictions to be mutually determined between the Management\nBoard and Employee.\n* 75,000 restricted Membership Unit grants with completion of fund raising, with Management Board approval, during 2007 & 2008,\nwhich does not include the 2007 approved Financial Plan or funds approved in association with the acquisition of Helix AG.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 12\nATTACHMENT “B”\nCEO & President Duties and Responsibilities\n1. Employee shall report directly to Company’s Management Board. Employee shall own all responsibilities for leading, planning, driving and\nexecuting all vision and business initiatives of the Company, working under the general directions and guidelines of the Board which will make\nassignments in terms of broadly defined missions.\n2. Employee shall provide leadership, experience and corporate governance required to transform the vision and product offerings of Company into a\ngrowing profitable business with the goal of maximizing’ ROI.\n3. Employee’s key responsibilities include:\na. The initial responsibility of Employee is to immediately commence an assessment of the viability of the Company and the likelihood of\nfuture growth under the current or other strategic plans, based on the quality and differentiation of its technology, and the preparation of a\nrecommendation to the Board to proceed toward fund raising and growth or other potential plans in the best interest of the Company’s Members.\nb. If the Board determines the direction the Company shall take under the MBO’s above, Employee shall develop a new business model\naccordingly, such as to execute the transition from a customer NRE-focus company to a company with a product portfolio focused on profitable\nreoccurring product revenue.\nc. In any decision scenario, Employee shall develop clear and precise business plans with appropriate strategies, objectives, initiatives, and\nindicator measurements. He shall maintain focus and guide the Company’s employees to consistent execution of approved business plans, as\napproved by the Board, reporting to the Board both quarterly and annually.\nd. Employee shall be responsible for building a strong, professional and highly motivated Executive Team, including new executives, with\nBoard involvements and approval, all of whom are capable of contributing to the Company goal of sustained and profitable growth.\ne. Employee shall articulate and implement the Company’s vision to create a business plan, goals, and objectives that will evolve with\ncontinued growth of profitability by balancing technical and business resources.\nf. Employee shall lead Company toward the achievement of aggressive sales growth targets for 2007, 2008 and beyond by rapidly penetrating\ntarget customer accounts and markets while establishing competitive barriers for entry, producing a product roadmap and driving new product and\ntechnology introductions to address expanding market opportunities using strong domestic and international industry relationships as leverage into\nsales, particularly with line card providers and system integrators, as well as with OEM partners.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 13\ng. Employee shall seek adequate funding sufficient to meet Company objectives: to grow the business, as per mutually agreed upon guidelines\nbetween the Employee and the Board. The employee will work with the current investors to lead a broad and successful fund raising process.\nh. Employee shall develop Business Plans with measurable initiatives and strategies that are aligned. These Business Plans will be\nprofessionally presented to the Board, and in some cases involve the Board prior to presentation, for formal Board approval. The Board for\nconsistent execution of approved Business Plans, relative initiatives, and MBO’s will hold Employee and his team accountable. Employee will be\npro-active involving the Board when Business Plans appear not to be achieved and thus developing a new course of execution pro-actively and\nachieve Board approval of revised Business Plans.\ni. Employee shall build a company culture of excellence based on performance, integrity, accountability, customer service, teamwork, candor\nand respect for others (Live, Love, Learn, Leave a Legacy).\nj. Employee shall seek to expand Company’s intellectual property portfolio, and secure all existing IP. He will also work with the investor’s\nlegal department to secure existing IP under appropriate patents, and to survey the IP market for potential infringements on the company’s IP, as well\nas potential infringements of the company on existing IP.\nk. Help to expand and strengthen the Board by recommending and recruiting, with the Board, new members including representatives of\nindustry and the relevant professions.\n1. Work with the Board to develop valuation strategies, which would achieve a value return to investors and shareholders.\nThis CEO & President Duties and Responsibilities are considered a “working document” that may change from time to time and in such event will\nbe documented and mutually agreed between Employee and Board.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT 14\nGIGOPTIX LL.C\nEQUITY INCENTIVE PLAN\nOPTION GRANT NOTICE\nGigOptix LLC, (the “Company”) pursuant to its Equity Incentive Plan (the “Plan”), hereby grants to Optionholder an option to purchase the number\nof the Company’s Units set forth below. This option is subject to all of the terms and conditions as set forth herein and in the Unit Option\nAgreement, the Plan, the Notice of Exercise and the Company’s Operating Agreement (the “Operating Agreement”). The Unit Option Agreement,\nthe Plan, the Notice of Exercise and the Operating Agreement are attached hereto and incorporated herein their entirety.\nOptionholder: Avi Katz\nDate of Grant: August 1, 2007\nDate Option Rights are Terminated if Not Exercised*: August 1, 2017\nNumber of Units Subject to Option: 1,000,000\nExercise Price (Per Unit): $0.10\nTotal Exercise Price: One Hundred Thousand Dollars ($100,000)\nExercise Schedule: Same as Vesting Schedule\nVesting Schedule: Options vest at the rate of /4 the first year based on the anniversary of the Grant date and at a rate of one thirty-sixth (*/36) of the\nremaining units per month over the remaining three years.\nDate of Vesting Number of Unit Options that can be Exercised\nAugust 1, 2008 250,000\nFirst of each month thereafter through December 31, 2011 Contact your Plan Administrator for your current vested amount\n* Option may terminate on earlier events, such as termination of Continuous Service, Optionholder’s Disability or Death. See the Unit Option\nAgreement and the Plan for further details.\nPayment: By cash or check\nConfidentiality: The undersigned Optionholder acknowledges and agrees that the information contained in this Option Grant Notice shall remain\nconfidential and Optionholder shall not divulge or reveal, either directly or indirectly, the amount or extent of equity or options granted herein or any\nother material term to any other co-worker, employee or third party (other than a license professional advisor) without the express written consent of\nthe Company. Any breach of this confidentiality agreement may result in complete forfeiture of the option or equity.\nAdditional Terms/Acknowledgments: Options shall not be exercised prior to January 1, 2008. The undersigned Optionholder acknowledges\nreceipt of, and understands and agrees to, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating Agreement.\nOptionholder further acknowledges that as of the Date of Grant, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating\nAgreement set forth the entire understanding between the Optionholder and the Company regarding the purchase of Units in the Company.\nOptionholder also agrees to execute all such further documentation as the Board of Managers may reasonably require.\nGIGOPTIX LLC: OPTIONHOLDER:\nBy: /s/ Paul F. Judge Date: 3/26/08 /s/ Avi Katz Date: 3/26/08\nPaul F. Judge, Management Board Member (Name)\nATTACHMENTS: Unit Option Agreement, Plan, Notice of Exercise, Operating Agreement and Memorandum to Plan Participants.\nGIGOPTIX LL.C\nEQUITY INCENTIVE PLAN\nOPTION GRANT NOTICE\nGigOptix LLC, (the “Company”) pursuant to its Equity Incentive Plan (the “Plan”), hereby grants to Optionholder an option to purchase the number\nof the Company’s Units set forth below. This option is subject to all of the terms and conditions as set forth herein and in the Unit Option\nAgreement, the Plan, the Notice of Exercise and the Company’s Operating Agreement (the “Operating Agreement”). The Unit Option Agreement,\nthe Plan, the Notice of Exercise and the Operating Agreement are attached hereto and incorporated herein their entirety.\nOptionholder: Avi Katz\nDate of Grant: August 1, 2007\nDate Option Rights are Terminated if Not Exercised*: August 1, 2017\nNumber of Units Subject to Option: 325,000\nExercise Price (Per Unit): $0.10\nTotal Exercise Price: Thirty Two Thousand Five Hundred Dollars ($32,500)\nExercise Schedule: Same as Vesting Schedule except that no units can be exercised prior\nto January 1, 2008.\nExercise Term: In the event the Optionholder’s Continuous Service Terminates, the\nOptionholder may exercise his or her vested Options but only within\nsuch period of time ending on the earlier of (i) the date five years\nfollowing termination of the Optionholders Continuous Service, or\n(ii) the expiration of the term of the Option as set forth in this Option\nGrant.\nVesting Schedule: Options vesting is based on performance as governed by the GigOptix Management Board.\nDate of Vesting Number of Unit Options that can be Exercised\nAugust 1, 2007 250,000%**\nTBD (effective on completion date) An additional 75,000 eligible for vesting, based on successfully completing a\nfunding event as governed by GigOptix Management Board.\n* Option may terminate on earlier events, such as termination of Continuous Service, Optionholder’s Disability or Death. See the Unit Option\nAgreement and the Plan for further details.\n**  May only be exercised after January 1, 2008.\nPayment: By cash or check\nConfidentiality: The undersigned Optionholder acknowledges and agrees that the information contained in this Option Grant Notice shall remain\nconfidential and Optionholder shall not divulge or reveal, either directly or indirectly, the amount or extent of equity or options granted herein or any\nother material term to any other co-worker, employee or third party (other than a license professional advisor) without the express written consent of\nthe Company. Any breach of this confidentiality agreement may result in complete forfeiture of the option or equity.\nAdditional Terms/Acknowledgments: Options shall not be exercised prior to January 1, 2008. The undersigned Optionholder acknowledges\nreceipt of, and understands and agrees to, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating Agreement.\nOptionholder further acknowledges that as of the Date of Grant, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating\nAgreement set forth the entire understanding between the Optionholder and the Company regarding the purchase of Units in the Company.\nOptionholder also agrees to execute all such further documentation as the Board of Managers may reasonably require.\nGIGOPTIX LLC: OPTIONHOLDER:\nBy: /s/ Paul F. Judge Date: 3/26/08 /s/ Avi Katz Date: 3/26/08\nPaul F. Judge, Management Board Member (Name)\nATTACHMENTS: Unit Option Agreement, Plan, Notice of Exercise, Operating Agreement and Memorandum to Plan Participants.	EX-10.23 6 ex1023.htm EMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT - AVI\nKATZ\nExhibit 10.23\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION\nAGREEMENT\nThis Employment, Confidentiality and Non-competition Agreement (this "Agreement") is made and entered into as of the 1st day of January\n2008, by and between GigOptix LLC, an Idaho limited liability company (herein referred to as "Company"), and Avi Katz ("Employee").\nA. Effective April 9, 2007, the Company and Employee entered into an Employment, Confidentiality and Non-competition Agreement ("1st\nAgreement") wherein the Employee provided management services to iTerra Communication LLC ("iTerra Communications").\nB. Under the direction of Employee, iTerra Communications was reorganized and all of its assets were transferred to Company on July 1,\n2007.\nC. Employee and Company desire to terminate the 1st Agreement and establish this new Agreement to accommodate Employee's transfer from\niTerra Communication to GigOptix on July 1, 2007 Furthermore, execution of this Agreement shall terminate the 1st Agreement effective April 9,\n2007 between Employee and Company.\nTherefore, in consideration of the mutual promises and covenants contained in this Agreement, the receipt and legal sufficiency of which\nconsideration are hereby acknowledged, the parties hereby agree as follows:\n1. Term.\na) Term. Company hereby employs Employee on a full time basis to serve as Chief Executive Officer (CEO) & President of the\nCompany effective Monday, July 1st, 2007, subject to the terms and conditions herein.\nb) Duties and Responsibilities. Employee shall report to the Company's Chairman of the Board and Management Board. The Employee\nshall have each and all of the duties and responsibilities of the CEO & President position, as set forth in Attachment B, which is incorporated\nin its entirety herein, and such other duties on behalf of the Company as may be reasonably assigned, and mutually agreed by and with\nEmployee, from time to time by Company's Management Board (it being acknowledged by the Company that Employee may terminate this\nAgreement for Good Reason in accordance with Section 4(c) herein in the event he does not so mutually agree).\n2. Employee Performance. Employee accepts employment with Company on the terms and conditions provided in this Agreement. Employee\nrecognizes Employee owes to Company duties of loyalty, fidelity and obedience in all matters pertaining to such employment. Employee shall\nserve Company diligently and faithfully, shall timely perform all duties to the best of Employee's ability and in compliance with Company's\nreasonable standards of performance, and shall devote Employee's time and best efforts to the conduct of Company's business. Company\nacknowledges that from time to time persons in the High-Tech\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n1\nindustry, in particular, but not limited to, the semiconductor, eCommerce, software and security, and in the real-estate industry, seek\nEmployee's advice or consultation. Provided that Employee does not disclose Confidential Information to such persons or intentionally act\nagainst Employer's interests, the Executive may provide such advice or consultation if it does not materially interfere with Executive's duties\nhereunder.\nNotwithstanding the foregoing, the parties of this Agreement recognize and agree that the Employee may engage in passive personal\ninvestments and other business activities which do not conflict, directly or indirectly, with the business affairs of the Company or interfere with\nEmployee's performance of Employee's duties and responsibilities hereunder. In that regard, Employee may serve on the Board(s) of Directors\nor\nManagement Board(s) of up to three (3) external companies of Employee's choice, unless larger number is approved by the iTerra Board\nof\nManagement, so long as service on any of such Boards simultaneously with Employee's service for the Company does not conflict or interfere\nwith performance of Employee's duties and responsibilities hereunder.\n3. Compensation. In consideration for the services of Employee rendered to Company pursuant to the terms of this Agreement, and subject\nto\nthe full material performance of Employee's obligations hereunder, Employee shall receive compensation and benefits as follows:\na) Base Salary. Employee shall be paid a base salary ("Base Salary") at the annual rate of $300,000, payable in bi-weekly installments\nconsistent with Company's payroll practices.\nb) Additional Incentive. Effective July 1st, 2007, Employee will receive two option grants, one to purchase three hundred and twenty five\nthousand (325,000) Membership Units of GigOptix, and a second to purchase One Million (1,000,000) Membership Units of GigOptix in\naccordance with the Company's Equity incentive Plan. The exercise price of both grants is $0.10 per unit. Vesting on the options to purchase\n325,000\nMembership Units will be based on performance objectives as established by the GigOptix Management Board for the 2007 period\nand Fund raising performance for the 2008 period. This option grant wil also include an extension of the 90 days exercise period after\ntermination as defined by the plan to five (5) years in recognition of participation in the 2007 Management Board without compensation.\nVesting on the option to purchase 1,000,000 Membership Units will be pro-rated based on monthly continuous service over four (4) years and\nthe exercise period after termination will be the standard 90 days, unless Management Board will approve different period.\nc) Payment Payment of all compensation to Employee hereunder shall be made in accordance with the relevant Company policies in\neffect from time to time, including normal payroll practices, and shall be subject to all applicable employment and withholding taxes.\nd) Business Expenses. Upon submission of itemized expense statements in the manner specified by the Company, Employee shall be\nentitled\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n2\nto direct payment and reimbursements for reasonable travel and other reasonable business expenses duly incurred by Employee in the\nperformance of his duties under this Agreement. Acceptable expenses will include, but are not limited to, charges for meals, Company\nemployee or customer entertainment, bridge tolls, lodging, air and ground transportation, cell phone, telephone, computer and broadband\ninternet services provided such are used for business purposes.\ne) Benefits Plans. Employee shall be eligible to participate in the Company's benefit plans including, but not limited to, medical and\ndental plans, life and disability insurance plans and retirement plans, pursuant to their terms and conditions. Nothing in this Agreement shall\npreclude the Company from terminating or amending any existing employee benefit plan or program from time to time, provided, however, the\nCompany agrees to provide Employee during the term of this Agreement with health, medical, dental, and disability insurance, equivalent in\ncost and benefits to Employee, to that provided Employee as of the date of this Agreement. The Company further agrees it shall be responsible\nfor any additional incremental costs associated with providing such equivalent insurance benefits and will pay, or reimburse Employee for, all\nsuch incremental additional costs.\nf) Vacation. Employee shall be entitled to participate in the Company's vacation plan and holiday plan, as long as the scheduling of\nEmployee's vacation does not interfere with the Company's normal business operations.\n4. Termination of Employment. Termination of employment will be subject to the following terms and conditions.\na) Termination For Cause. Notwithstanding anything herein to the contrary, the Company may terminate Employee's employment\nhereunder "For Cause" for any one of the following reasons:\ni. The Employee's willful harmful actions which do or are likely to result in material damage or embarrassment to Company, the\nCompany's reputation, or the Company's legitimate business interests;\nii. The Employee's continued failure to follow the express direction and approved Resolutions of the Company Management\nBoard, following at least 60 days written notice.\niii. Commission of any act of fraud or falsification of any employment or Company records in any material way;\niv. The Employee's abuse or illegal use of alcohol or other drugs or controlled substances;\nV. The Employee's material breach of any of the terms or conditions of this Agreement, which breach is not cured within thirty\n(30) days following written notice from Company of such breach;\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n3\nvi. Employee's conviction of or entry of a guilty plea or plea of no contest with respect to a felony, including theft, embezzlement\nor misappropriation of funds from the Company; or\nvii. Voluntary resignation of the Employee in the absence of Good Reason as defined in Section 4 (c) of this Agreement.\nUpon termination of Employee's employment with Company For Cause, the Employee shall not be entitled to the Termination Benefits\nin Section 4(d) of this Agreement. Company shall have no further obligation under this Agreement other than payment of accrued but unpaid\nBase Salary, vacation and bonus. [For Cause and Termination Benefits are defined terms.]\nb) Termination Without Cause. The Company may terminate Employee's employment hereunder at any time without cause, provided,\nhowever, that Employee shall be entitled to the Termination Benefits set forth in Section 4(d) of this Agreement.\nc) Termination for Good Reason. Employee may terminate his employment with the Company for Good Reason (as herein defined). If\nEmployee terminates his employment with the Company for Good Reason (as herein defined), he shall be entitled to the Termination Benefits\nset forth in Section 4(d). For purposes of this Agreement, "Good Reason" shall mean any of the following: (i) any material breach by the\nCompany of this Agreement, which breach is not cured within thirty (30) days following written notice from Employee of such breach; or\n(ii) any significant change in the Employee's duties and responsibilities, without mutual agreement between Employee and Company.\nd) Termination Benefits. If the Employee is terminated at any time during his employment under the provisions of 4(b) or 4(c), upon\nmutual execution of valid and comprehensive release of any and all claims between them, including an agreement by Company to indemnify,\nhold harmless and defend Employee against any and all existing claims or claims, other than for his gross negligence, fraud, willful\nmisconduct, that may be filed by third parties, including government agencies, naming Employee as a defendant either as an individual or as\nthe President & CEO of the Company, the Employee shall receive "Termination Benefits" as follows:\n1. 500,000 Membership Unit Options of the 1,000,000 Option Grant identified in Section 3(b) herein from the date of termination of\nemployment shall immediately vest and be granted an exercise period of five (5) years. The 500,000 Membership Unit Options subject to\nthis Section 4(d) (1) shall not apply to any Membership Unit Options that have been forfeited in accordance with the Equity Incentive\nPlan and the respective Membership Unit Option Grant Notice and shall be first allocated from any vested Membership Unit Options\nissued under Section 3(c) of this Agreement, and shall then be allocated to any unvested Membership Unit Options issued under\nSection 3(c) of this Agreement;\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n4\n2. One hundred percent (100%) of the remaining 325,000 Membership Unit Option Grants, excluding any Option that have been\nforfeited in accordance with performance objectives, shall immediately vest and be granted an exercise period of five (5) years; and\n3. One time lump-sum payment, equivalent to twelve (12) months Base Salary pursuant to Section 3(a) herein, paid on the date of\ntermination of Employee. This Section 4(d)(3) shall terminate on January 1, 2013.\ne)\nCooperation. After notice of termination, Employee shall cooperate with the Company, as reasonably requested by the Company,\nto\neffect a transition of Employee's responsibilities and to ensure that the Company is aware of all matters being handled by the Employee.\nf) Disability. of Employee. The Company may terminate this Agreement without liability, if Employee shall be permanently prevented\nfrom properly performing his essential duties hereunder with reasonable accommodation by reason of illness or other physical or mental\nincapacity for a period of more than one hundred twenty (120) consecutive days. Upon Employee hire date the Company will obtain a one (1)\nyear Disability insurance policy effective the determined date of disability as described below. Employee will have the opportunity to review\nand acknowledge the Company proposed insurance policy. Upon mutual agreement between Employee and the Company, the Company will\npurchase the mutually agreed one (1) year Disability policy. A medical doctor selected by written agreement of the Employer and the\nEmployee upon the request of either party by notice to the other will determine the disability of Employee. If the Employer and Employee\ncannot agree on the selection of a medical doctor, each of them will select a medical doctor and the two medical doctors will select a third\ndoctor who will determine whether the Employee has a disability. The determination of the medical doctor selected under this Section 4(f) will\nbe binding on both parties. The Employee must submit to a reasonable number of examinations by the medical doctor making the\ndetermination of disability under this Section 4(f), and Employee hereby authorizes the disclosures and release to the Employer of such\ndetermination and all supporting medical records. If the Employee is not legally competent, the Employee's legal guardian or duly authorized\nattorney-in-fact will act in the Employee's stead, under this Section 4(f), for the purposes of submitting the Employee to the examinations, and\nproviding the authorization of disclosure, required under this Section 4(f). Upon such termination, Employee shall be entitled to all accrued but\nunpaid Base Salary, accrued bonus (if any) and accrued vacation.\ng) Death of Employee. In the event of the death of Employee, the Company's obligations hereunder shall be automatically cease and\nterminate; provided, however, that within 15 days the Company shall pay to Employee's heirs or personal representatives Employee's accrued\nbut unpaid Base Salary and accrued vacation accrued to the date of death.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n5\n5. Confidential Information.\na) Definition of Confidential Information. The Company has built up an established and extensive trade and reputation in its' respective\nindustries. The Company has developed and continues to develop commercially valuable technical and non-technical information\n("Confidential Information") that is proprietary and confidential and constitutes the Company's "trade secrets" within the meaning of the Idaho\nTrade Secrets Act, Idaho Code Sections 48-801 48-807. Such Confidential Information, which is vital to the success of the Company's\nbusiness, includes, but is not necessarily limited to: programs, computer programs, system documentation, data compilations, manuals,\nmethods, techniques, processes, patented and/or unpatented technology, research, know-how, development, designs, devices, inventions, the\nidentities of Company's customers, Company's suppliers, contracts with suppliers and customers, sales proposals, pricing policies, cost\ninformation, financial information, business plans, specialized requests of Company's customers, and other materials and documents\ndeveloped by Company. Confidential Information also includes special hardware, product hardware, related software and related\ndocumentation, either owned by Company or in Company's possession under an agreement of nondisclosure. Through Employee's\nemployment, Employee may become acquainted with or contribute to the Company's Confidential Information through inventions,\ndiscoveries, improvements, software development, and/or in other ways. Confidential Information does not include customer names, programs,\nreports or other improvements to documentation, which were owned by Employee prior to being employed by Company. Further, Confidential\nInformation does not include information (i) that was in the public domain at the time of initial disclosure by or enters the public domain\nthereafter through no fault of Employee; (ii) that was already in the possession of Employee at the time of the initial disclosure and not subject\nto\nany other nondisclosure obligations; (iii) that is independently developed by Employee, outside the term of his employment with the\nCompany, without access to the subject Confidential Information; (iv) that is received by Employee from a third party with no confidential\nrestrictions; or (v) for which disclosure is compelled by a judicial or other governmental order, provided Employee provides Employer with\nprompt notice of such order before disclosure.\nb) Employee Access to Confidential Information. As President & CEO of Company, Employee will need broad access to Company's\nConfidential Information Employee agrees that to the extent reasonably possible he will limit access to said Confidential Information under\nhis control only to Company's other employees whose job functions reasonably necessitate access to such Confidential Information and to\nthird parties only on a need to know basis.\nc) Nondisclosure of Confidential Information. Employee shall not, at any time, either during or subsequent to employment, directly or\nindirectly, appropriate, disclose or divulge any Confidential Information to any person not then employed by Company or any of DBSI's\naffiliates, unless authorized or directed to do so by Company. Regarding all other third parties, Employee shall use good practices to ensure\nthat a signed confidentiality agreement for the\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n6\nbenefit of Company is or has been obtained from the third party to whom Confidential Information is being disclosed and that all Confidential\nInformation so disclosed is clearly marked "Confidential."\nd) Return of Confidential and Other Information. All Confidential Information provided to Employee, and all documents and things\nprepared by Employee in the course of Employee's employmen by Company, including but not necessarily limited to correspondence,\ndrawings, blueprints, manuals, letters, notes, lists, notebooks, reports, flow-charts, computer programs, proposals, Day Timers, planners,\ncalendars, schedules, discs, data tapes, financial plans and information, business plans, and other documents and records, whether in hard copy,\nmagnetic media or otherwise, and any and all copies thereof, are the exclusive property of Company and shall be returned immediately to\nCompany upon termination of employment or upon Company's request at any time.\ne) Ownership of Confidential Information. Employee hereby grants to Company, and Company hereby accepts, the entire right, title, and\ninterest of Employee in and to any of the Confidential Information created or developed by Employee during the term of his employment\n(whether created or developed within or outside the course and scope of Employee's employment by Company), including, but not limited to,\nall patents, copyrights, trade secrets, and other proprietary rights in or based on the Confidential Information. If the Confidential Information or\nany portion thereof is copyrightable, it shall be deemed to be a "work made for hire," as such term is defined in the copyright laws of the\nUnited States. Employee shall cooperate with Company or its designees and execute assignments, oaths, declarations, and other documents\nprepared by Company, to effect the terms of this Section 5(e) or to perfect or enforce any proprietary rights resulting from or related to this\nAgreement. Within reason and in accordance with industry practice, such cooperation and execution shall be at no additional compensation to\nEmployee; provided, however, Company shall reimburse Employee for reasonable out-of-pocket expenses incurred at the specific request of\nCompany,\n6. Non-competition Obligations. During Employee's employment with Company, and for a period of twelve (12) months immediately\nfollowing termination (the "Non-competition Obligation") of such employment, Employee will not, directly or indirectly, at any place in the\nworld, engage or become interested (as owner, stockholder, partner, director, officer, member, creditor, consultant, or employee) in any\nbusiness in competition with the business conducted by Company at any time during Employee's employment with Company. Employee\nacknowledges that Company is doing business throughout the world, that Employee is reasonably expected to have contact with Company's\ncustomers throughout the world during the term of Employee's employment with Company, and that the worldwide geographic scope of this\ncovenant is reasonably necessary to protect Company's legitimate business interests.\n7. Customer Non-Solicitation. Employee will not, during the term of employment with Company and for a period of twelve (12) months\nimmediately following termination of employment, solicit, divert, take away from the\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n7\nCompany, or attempt to solicit, divert or take away, any of Company's customers with related business or the related business or patronage\nof\nany such customers, either for himself or on behalf of any other person, partnership, corporation or other entity. This restriction against\nsolicitation shall apply only to solicitations, which directly or indirectly compete with the business of the Company that Company is/was\nengaged in while Employee worked for Company.\n8. Co-Emplovee Non-Solicitation. Employee will not, during the term of employment with Company and for a period of twelve (12) months\nfollowing the termination of such employment for any reason, solicit, recruit and hire any other employee of Company, either for himself or on\nbehalf of any other person, partnership, corporation or other entity.\n9. Enforcement.\na) Reasonableness of Restrictions. Employee and Company acknowledges that compliance with this Agreement is reasonable and\nnecessary to protect both parties' legitimate business interests, including but not limited to both parties' goodwill.\nb) Irreparable Harm. Employee and Company acknowledges that a breach of either party's obligations under this Agreement will result\nin great, irreparable and continuing harm and damage to the other party for which there is no adequate remedy at law.\nc) Injunctive Relief. Employee agrees that in the event Employee breaches this Agreement, Company shall be entitled to seek, from any\ncourt of competent jurisdiction, preliminary and permanent injunctive relief to enforce the terms of this Agreement, in addition to any and all\nmonetary damages allowed by law, against Employee. Further, Company agrees that in the event Company breaches this Agreement,\nEmployee shall be entitled to seek, from any court of competent jurisdiction, preliminary and permanent injunctive relief to enforce the terms\nof this Agreement, in addition to any and all monetary damages allowed by law, against Company.\nd) Extension of Covenants. In the event Employee violates any one or more of the covenants contained in Sections 6 through 8 of this\nAgreement, Employee agrees that the running of the term of each covenant so violated shall be tolled during the period(s) of any such violation\nand the pendency of any litigation arising out of any such violation. Further, in the event Company violates any one or more of the covenants\ncontained in Sections 6 through 8 of this Agreement, Company agrees that the running of the term of each covenant so violated shall be tolled\nduring the period(s) of any such violation and the pendency of any litigation arising out of any such violation.\ne) Judicial Modification. The parties have attempted to limit the Employee's right to compete only to the extent necessary to protect\nCompany from unfair business practices and/or unfair competition. The parties recognize, however, that reasonable people may differ in\nmaking such a determination.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n8\nConsequently, the parties hereby agree that, if the scope or enforceability of the restrictive covenant is in any way disputed at any time, a court\nor other trier of fact may modify and enforce the covenant to the extent that it believes to be reasonable under the circumstances existing at that\ntime.\nf) Attorney Fees. In the event it becomes necessary for either party to this Agreement to institute a suit at law or in equity for the\npurposes of enforcing any of the provisions of this Agreement, the prevailing party shall be entitled to recover said party's reasonable\nattorney's fees, plus court costs and expenses, from the non-prevailing party.\ng)\nWithholding from Final Paycheck. If not prohibited by federal, state or local laws, Employee expressly authorizes Company to\nwithhold and deduct from Employee's final wages any amounts owed by Employee to Company at the time of the termination of employment,\nincluding but not limited to the value of unreturned or willfully damaged Company property. Employee further expressly agrees to repay to\nCompany any additional agreed-upon sums owed by Employee to Company (above that which can be withheld) immediately upon termination\nof Employee's employment\nh) Alternative Dispute Resolution. In the event a dispute between the parties arises under this Agreement, prior to filing an action of any\nkind each Party agrees to mediation of the dispute or disputes and shall participate in good faith. The mediation shall be conducted by a\nprofessional neutral mediator under the Mediation Rules of the American Arbitration Association but not necessarily in that forum.\n10. Indemnity. Employee warrants and represents that Employee has not knowingly and intentionally violated, is not knowingly and\nintentionally violating, and will not knowingly and intentionally violate any of the terms or conditions of any prior employment agreement,\nrestrictive covenant, or other similar agreement entered into by Employee while in the employment of any other company; that Employee has\nnot knowingly and intentionally given and will not knowingly and intentionally give to the Company at any time any customer list, trade\nsecret, or any other item of confidentia information, obtained or received while in the employment of any other company in violation of any\nemployment agreement, restrictive covenant or similar agreement entered into while in the employment of any other company; that, to the best\nof Employee's knowledge. Employee's employment with the Company as contemplated and provided for hereby is not materially restricted or\nmaterially limited in any way by any such employment agreement or restrictive covenant or by operation of any state, federal or local\nregulation, statute or other law of any kind, name or nature, including but not limited to trade secret laws and immigration laws; and that\nEmployee is in all respects duly qualified and eligible to work for the Company. In the event of a final legal adjudication (after exhausting any\nright of appeal) of Employee's material violation of one or more of the warranties or representations set forth above in this section, Employee\nagrees to indemnify the Company for all damages, costs and expenses, including reasonable attorney fees, which the Company may have to\npay in connection with a legal or administrative action against the Company or\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n9\nEmployee arising there from; provided, however, in the event any damages, costs and expenses are incurred by the Company for which\nEmployee is otherwise obligated to indemnify the Company are covered under any insurance policy or policies of the Company, then the\nCompany shall be obligated to exhaust all available insurance as a condition to the exercise of its right of indemnification hereunder (and the\nCompany waives all rights of subrogation in connection therewith) and Employee's indemnification obligation hereunder shall be reduced in\nproportion to the extent of such insurance. Company warrants and represents it has no knowledge as of the date hereof that Employee is or\nmay become in violation of any of the warranties and representations made by him above.\n11. Miscellaneous.\na) Survival. Employee understands that this Agreement shall be effective as of the date first written above and that the terms of this\nAgreement shall remain in full force and effect not only during the continuation of Employee's employment, but also after the termination of\nemployment for any reason by Company or Employee.\nb) Waiver. Failure of the Company or Employee to exercise or otherwise act with respect to any of its rights under this Agreement shall\nnot be construed as a waiver of any breach, nor prevent the Company or Employee from thereafter enforcing strict compliance with any and all\nterms of this Agreement.\nc) Severability. If any part of this Agreement shall be adjudicated to be invalid or unenforceable, as to duration, territory or otherwise,\nthen such part shall be deemed deleted from this Agreement or amended, as the case may be, in order to render the remainder of this\nAgreement valid and enforceable.\nd) Agreement Binding. This Agreement shall be binding upon and inure to the benefit of Company, Company's successors and assigns,\nEmployee and Employee's heirs, executors, administrators and legal representatives.\ne) Governing Law. This Agreement is made and entered into in the State of California, where Company has its principal place of\nbusiness, and concerns employment situated in said state. This Agreement shall be interpreted and construed in accordance with the laws of the\nState of California.\nf) Titles and Captions. All section and paragraph titles and captions contained in this Agreement are for convenience only and shall not\nbe deemed part of the context nor affect the construction or interpretation of this Agreement.\ng) Entire Agreement. This Agreement, which includes all Attachments incorporated herein and attached hereto, contains all the\nunderstandings and agreements between the parties concerning matters set forth in this Agreement. The terms of this Agreement supersede any\nand all prior statements, representations and agreements by or between Company and Employee, or either of them, concerning the matters set\nforth in this Agreement.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n10\nEmployee acknowledges that no person who is an agent or employee of Company may orally or by conduct modify, delete, vary, or contradict\nthe terms or conditions of this Agreement or this paragraph. This Agreement may be modified only by a written agreement signed by both\nparties.\nh) Separate Counsel. Company's attorneys have not represented Employee, and Employee has been advised that it is important for him\nto seek legal advice and representation in this matter.\nThe parties acknowledge and agree that they have read and understood the entire contents of this Agreement and Employee\nacknowledges that he has received a copy of this Agreement.\nCompany:\nGigOptix LLC,\na California limited liability company\n/s/ Paul Judge\nBy: Paul Judge\nIts: Compensation Committee Member, and Member of\nthe Management Board\nEmployee:\n/s/ Avi Katz\nAvi Katz\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n11\nATTACHMENT "A"\nMANAGEMENT BY OBJECTIVES (MBO'S)\nUpon execution of this Agreement, Employee and Company shall mutually establish and confirm through a Company Management Board\nResolution the following fair and reasonable goals (MBO's) which, when met, shall remove restrictions on certain Company Membership Units,\nrelated in Section 3(b) of this Employment, Confidentiality and Non-Competition Agreement:\n250,000 Restricted Membership Unit grants with 2007 MBO and grant restrictions to be mutually determined between the Management\nBoard and Employee.\n75,000 restricted Membership Unit grants with completion of fund raising, with Management Board approval, during 2007 & 2008,\nwhich does not include the 2007 approved Financial Plan or funds approved in association with the acquisition of Helix AG.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n12\nATTACHMENT "B"\nCEO & President Duties and Responsibilities\n1.\nEmployee shall report directly to Company's Management Board. Employee shall own all responsibilities for leading, planning, driving and\nexecuting all vision and business initiatives of the Company, working under the general directions and guidelines of the Board which will make\nassignments in terms of broadly defined missions.\n2. Employee shall provide leadership, experience and corporate governance required to transform the vision and product offerings of Company into a\ngrowing profitable business with the goal of maximizing' ROI.\n3. Employee's key responsibilities include:\na. The initial responsibility of Employee is to immediately commence an assessment of the viability of the Company and the likelihood of\nfuture growth under the current or other strategic plans, based on the quality and differentiation of its technology, and the preparation of a\nrecommendation to the Board to proceed toward fund raising and growth or other potential plans in the best interest of the Company's Members.\nb. If the Board determines the direction the Company shall take under the MBO's above, Employee shall develop a new business model\naccordingly, such as to execute the transition from a customer NRE-foCUS company to a company with a product portfolio focused on profitable\nreoccurring product revenue.\nC. In any decision scenario, Employee shall develop clear and precise business plans with appropriate strategies, objectives, initiatives, and\nindicator measurements. He shall maintain focus and guide the Company's employees to consistent execution of approved business plans, as\napproved by the Board, reporting to the Board both quarterly and annually.\nd. Employee shall be responsible for building a strong, professional and highly motivated Executive Team, including new executives, with\nBoard involvements and approval, all of whom are capable of contributing to the Company goal of sustained and profitable growth.\ne. Employee shall articulate and implement the Company's vision to create a business plan, goals, and objectives that will evolve with\ncontinued growth of profitability by balancing technical and business resources.\nf. Employee shall lead Company toward the achievement of aggressive sales growth targets for 2007, 2008 and beyond by rapidly penetrating\ntarget customer accounts and markets while establishing competitive barriers for entry, producing a product roadmap and driving new product and\ntechnology introductions to address expanding market opportunities using strong domestic and international industry relationships as leverage into\nsales, particularly with line card providers and system integrators, as well as with OEM partners.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n13\ng. Employee shall seek adequate funding sufficient to meet Company objectives: to grow the business, as per mutually agreed upon guidelines\nbetween the Employee and the Board. The employee will work with the current investors to lead a broad and successful fund raising process.\nh. Employee shall develop Business Plans with measurable initiatives and strategies that are aligned. These Business Plans will be\nprofessionally presented to the Board, and in some cases involve the Board prior to presentation, for formal Board approval. The Board for\nconsistent\nexecution of approved Business Plans, relative initiatives, and MBO's will hold Employee and his team accountable. Employee will\nbe\npro-active involving the Board when Business Plans appear not to be achieved and thus developing a new course of execution pro-actively and\nachieve Board approval of revised Business Plans.\ni. Employee shall build a company culture of excellence based on performance, integrity, accountability, customer service, teamwork, candor\nand respect for others (Live, Love, Learn, Leave a Legacy).\nj. Employee shall seek to expand Company's intellectual property portfolio, and secure all existing IP. He will also work with the investor's\nlegal department to secure existing IP under appropriate patents, and to survey the IP market for potential infringements on the company's IP, as well\nas potential infringements of the company on existing IP.\nk. Help to expand and strengthen the Board by recommending and recruiting, with the Board, new members including representatives of\nindustry and the relevant professions.\n1. Work with the Board to develop valuation strategies, which would achieve a value return to investors and shareholders.\nThis CEO & President Duties and Responsibilities are considered a "working document" that may change from time to time and in such event will\nbe documented and mutually agreed between Employee and Board.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n14\nGIGOPTIX LLC\nEQUITY INCENTIVE PLAN\nOPTION GRANT NOTICE\nGigOptix LLC, (the "Company") pursuant to its Equity Incentive Plan (the "Plan"), hereby grants to Optionholder an option to purchase the number\nof the Company's Units set forth below. This option is subject to all of the terms and conditions as set forth herein and in the Unit Option\nAgreement, the Plan, the Notice of Exercise and the Company's Operating Agreement (the "Operating Agreement"). The Unit Option Agreement,\nthe Plan, the Notice of Exercise and the Operating Agreement are attached hereto and incorporated herein their entirety.\nOptionholder:\nAvi Katz\nDate of Grant:\nAugust 1, 2007\nDate Option Rights are Terminated if Not Exercised*:\nAugust 1, 2017\nNumber of Units Subject to Option:\n1,000,000\nExercise Price (Per Unit):\n$0.10\nTotal Exercise Price:\nOne Hundred Thousand Dollars ($100,000)\nExercise Schedule:\nSame as Vesting Schedule\nVesting Schedule: Options vest at the rate of 1/4 the first year based on the anniversary of the Grant date and at a rate of one thirty-sixth (1/36) of the\nremaining units per month over the remaining three years.\nDate of Vesting\nNumber of Unit Options that can be Exercised\nAugust 1, 2008\n250,000\nFirst of each month thereafter through December 31, 2011\nContact your Plan Administrator for your current vested amount\nOption may terminate on earlier events, such as termination of Continuous Service, Optionholder's Disability or Death. See the Unit Option\nAgreement and the Plan for further details.\nPayment: By cash or check\nConfidentiality: The undersigned Optionholder acknowledges and agrees that the information contained in this Option Grant Notice shall remain\nconfidential and Optionholder shall not divulge or reveal, either directly or indirectly, the amount or extent of equity or options granted herein or any\nother material term to any other co-worker, employee or third party (other than a license professional advisor) without the express written consent of\nthe Company. Any breach of this confidentiality agreement may result in complete forfeiture of the option or equity.\nAdditional Terms/Acknowledgments Options shall not be exercised prior to January 1, 2008. The undersigned Optionholder acknowledges\nreceipt of, and understands and agrees to, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating Agreement.\nOptionholder further acknowledges that as of the Date of Grant, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating\nAgreement set forth the entire understanding between the Optionholder and the Company regarding the purchase of Units in the Company.\nOptionholder also agrees to execute all such further documentation as the Board of Managers may reasonably require.\nGIGOPTIX LLC:\nOPTIONHOLDER:\nBy: /s/ Paul F. Judge\nDate: 3/26/08\n/s/ Avi Katz\nDate: 3/26/08\nPaul F. Judge, Management Board Member\n(Name)\nATTACHMENTS: Unit Option Agreement, Plan, Notice of Exercise, Operating Agreement and Memorandum to Plan Participants.\nGIGOPTIX LLC\nEQUITY INCENTIVE PLAN\nOPTION GRANT NOTICE\nGigOptix LLC, (the "Company") pursuant to its Equity Incentive Plan (the "Plan"), hereby grants to Optionholder an option to purchase the number\nof the Company's Units set forth below. This option is subject to all of the terms and conditions as set forth herein and in the Unit Option\nAgreement, the Plan, the Notice of Exercise and the Company's Operating Agreement (the "Operating Agreement"). The Unit Option Agreement,\nthe Plan, the Notice of Exercise and the Operating Agreement are attached hereto and incorporated herein their entirety.\nOptionholder:\nAvi Katz\nDate of Grant:\nAugust 1, 2007\nDate Option Rights are Terminated if Not Exercised**:\nAugust 1, 2017\nNumber of Units Subject to Option:\n325,000\nExercise Price (Per Unit):\n$0.10\nTotal Exercise Price:\nThirty Two Thousand Five Hundred Dollars ($32,500)\nExercise Schedule:\nSame as Vesting Schedule except that no units can be exercised prior\nto January 1, 2008.\nExercise Term:\nIn the event the Optionholder's Continuous Service Terminates, the\nOptionholder may exercise his or her vested Options but only within\nsuch period of time ending on the earlier of (i) the date five years\nfollowing termination of the Optionholders Continuous Service, or\n(ii) the expiration of the term of the Option as set forth in this Option\nGrant.\nVesting Schedule: Options vesting is based on performance as governed by the GigOptix Management Board.\nDate of Vesting\nNumber of Unit Options that can be Exercised\nAugust 1, 2007\n250,000* **\nTBD (effective on completion date)\nAn additional 75,000 eligible for vesting, based on successfully completing a\nfunding event as governed by GigOptix Management Board.\nOption may terminate on earlier events, such as termination of Continuous Service, Optionholder's Disability or Death. See the Unit Option\nAgreement and the Plan for further details.\nMay only be exercised after January 1, 2008.\nPayment: By cash or check\nConfidentiality: The undersigned Optionholder acknowledges and agrees that the information contained in this Option Grant Notice shall remain\nconfidential and Optionholder shall not divulge or reveal, either directly or indirectly, the amount or extent of equity or options granted herein or any\nother material term to any other co-worker, employee or third party (other than a license professional advisor) without the express written consent of\nthe Company. Any breach of this confidentiality agreement may result in complete forfeiture of the option or equity.\nAdditional Terms/Acknowledgments: Options shall not be exercised prior to January 1, 2008. The undersigned Optionholder acknowledges\nreceipt of, and understands and agrees to, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating Agreement.\nOptionholder further acknowledges that as of the Date of Grant, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating\nAgreement set forth the entire understanding between the Optionholder and the Company regarding the purchase of Units in the Company.\nOptionholder also agrees to execute all such further documentation as the Board of Managers may reasonably require.\nGIGOPTIX LLC:\nOPTIONHOLDER:\nBy: /s/ Paul F. Judge\nDate: 3/26/08\n/s/ Avi Katz\nDate: 3/26/08\nPaul F. Judge, Management Board Member\n(Name)\nATTACHMENTS: Unit Option Agreement, Plan, Notice of Exercise, Operating Agreement and Memorandum to Plan Participants.	EX-10.23 6 dex1023.htm EMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT - AVI\nKATZ\nExhibit 10.23\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION\nAGREEMENT\nThis Employment, Confidentiality and Non-competition Agreement (this “Agreement”) is made and entered into as of the 1st day of January\n2008, by and between GigOptix LLC, an Idaho limited liability company (herein referred to as “Company”), and Avi Katz (“Employee”).\nA. Effective April 9, 2007, the Company and Employee entered into an Employment, Confidentiality and Non-competition Agreement (“1\nst\nAgreement”) wherein the Employee provided management services to iTerra Communication LLC (“iTerra Communications”).\nB. Under the direction of Employee, iTerra Communications was reorganized and all of its assets were transferred to Company on July 1,\n2007.\nC. Employee and Company desire to terminate the 1st\nAgreement and establish this new Agreement to accommodate Employee’s transfer from\niTerra Communication to GigOptix on July 1, 2007 Furthermore, execution of this Agreement shall terminate the 1st Agreement effective April 9,\n2007 between Employee and Company.\nTherefore, in consideration of the mutual promises and covenants contained in this Agreement, the receipt and legal sufficiency of which\nconsideration are hereby acknowledged, the parties hereby agree as follows:\n1. Term.\na) Term. Company hereby employs Employee on a full time basis to serve as Chief Executive Officer (CEO) & President of the\nCompany effective Monday, July 1st, 2007, subject to the terms and conditions herein.\nb) Duties and Responsibilities. Employee shall report to the Company’s Chairman of the Board and Management Board. The Employee\nshall have each and all of the duties and responsibilities of the CEO & President position, as set forth in Attachment B, which is incorporated\nin its entirety herein, and such other duties on behalf of the Company as may be reasonably assigned, and mutually agreed by and with\nEmployee, from time to time by Company’s Management Board (it being acknowledged by the Company that Employee may terminate this\nAgreement for Good Reason in accordance with Section 4(c) herein in the event he does not so mutually agree).\n2. Employee Performance. Employee accepts employment with Company on the terms and conditions provided in this Agreement. Employee\nrecognizes Employee owes to Company duties of loyalty, fidelity and obedience in all matters pertaining to such employment. Employee shall\nserve Company diligently and faithfully, shall timely perform all duties to the best of Employee’s ability and in compliance with Company’s\nreasonable standards of performance, and shall devote Employee’s time and best efforts to the conduct of Company’s business. Company\nacknowledges that from time to time persons in the High-Tech\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n1\nindustry, in particular, but not limited to, the semiconductor, eCommerce, software and security, and in the real-estate industry, seek\nEmployee’s advice or consultation. Provided that Employee does not disclose Confidential Information to such persons or intentionally act\nagainst Employer’s interests, the Executive may provide such advice or consultation if it does not materially interfere with Executive’s duties\nhereunder.\nNotwithstanding the foregoing, the parties of this Agreement recognize and agree that the Employee may engage in passive personal\ninvestments and other business activities which do not conflict, directly or indirectly, with the business affairs of the Company or interfere with\nEmployee’s performance of Employee’s duties and responsibilities hereunder. In that regard, Employee may serve on the Board(s) of Directors\nor Management Board(s) of up to three (3) external companies of Employee’s choice, unless larger number is approved by the iTerra Board of\nManagement, so long as service on any of such Boards simultaneously with Employee’s service for the Company does not conflict or interfere\nwith performance of Employee’s duties and responsibilities hereunder.\n3. Compensation. In consideration for the services of Employee rendered to Company pursuant to the terms of this Agreement, and subject to\nthe full material performance of Employee’s obligations hereunder, Employee shall receive compensation and benefits as follows:\na) Base Salary. Employee shall be paid a base salary (“Base Salary”) at the annual rate of $300,000, payable in bi-weekly installments\nconsistent with Company’s payroll practices.\nb) Additional Incentive. Effective July 1st\n, 2007, Employee will receive two option grants, one to purchase three hundred and twenty five\nthousand (325,000) Membership Units of GigOptix, and a second to purchase One Million (1,000,000) Membership Units of GigOptix in\naccordance with the Company’s Equity incentive Plan. The exercise price of both grants is $0.10 per unit. Vesting on the options to purchase\n325,000 Membership Units will be based on performance objectives as established by the GigOptix Management Board for the 2007 period\nand Fund raising performance for the 2008 period. This option grant will also include an extension of the 90 days exercise period after\ntermination as defined by the plan to five (5) years in recognition of participation in the 2007 Management Board without compensation.\nVesting on the option to purchase 1,000,000 Membership Units will be pro-rated based on monthly continuous service over four (4) years and\nthe exercise period after termination will be the standard 90 days, unless Management Board will approve different period.\nc) Payment. Payment of all compensation to Employee hereunder shall be made in accordance with the relevant Company policies in\neffect from time to time, including normal payroll practices, and shall be subject to all applicable employment and withholding taxes.\nd) Business Expenses. Upon submission of itemized expense statements in the manner specified by the Company, Employee shall be\nentitled\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n2\nto direct payment and reimbursements for reasonable travel and other reasonable business expenses duly incurred by Employee in the\nperformance of his duties under this Agreement. Acceptable expenses will include, but are not limited to, charges for meals, Company\nemployee or customer entertainment, bridge tolls, lodging, air and ground transportation, cell phone, telephone, computer and broadband\ninternet services provided such are used for business purposes.\ne) Benefits Plans. Employee shall be eligible to participate in the Company’s benefit plans including, but not limited to, medical and\ndental plans, life and disability insurance plans and retirement plans, pursuant to their terms and conditions. Nothing in this Agreement shall\npreclude the Company from terminating or amending any existing employee benefit plan or program from time to time, provided, however, the\nCompany agrees to provide Employee during the term of this Agreement with health, medical, dental, and disability insurance, equivalent in\ncost and benefits to Employee, to that provided Employee as of the date of this Agreement. The Company further agrees it shall be responsible\nfor any additional incremental costs associated with providing such equivalent insurance benefits and will pay, or reimburse Employee for, all\nsuch incremental additional costs.\nf) Vacation. Employee shall be entitled to participate in the Company’s vacation plan and holiday plan, as long as the scheduling of\nEmployee’s vacation does not interfere with the Company’s normal business operations.\n4. Termination of Employment. Termination of employment will be subject to the following terms and conditions.\na) Termination For Cause. Notwithstanding anything herein to the contrary, the Company may terminate Employee’s employment\nhereunder “For Cause” for any one of the following reasons:\ni. The Employee’s willful harmful actions which do or are likely to result in material damage or embarrassment to Company, the\nCompany’s reputation, or the Company’s legitimate business interests;\nii. The Employee’s continued failure to follow the express direction and approved Resolutions of the Company Management\nBoard, following at least 60 days written notice.\niii. Commission of any act of fraud or falsification of any employment or Company records in any material way;\niv. The Employee’s abuse or illegal use of alcohol or other drugs or controlled substances;\nv. The Employee’s material breach of any of the terms or conditions of this Agreement, which breach is not cured within thirty\n(30) days following written notice from Company of such breach;\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n3\nvi. Employee’s conviction of or entry of a guilty plea or plea of no contest with respect to a felony, including theft, embezzlement\nor misappropriation of funds from the Company; or\nvii. Voluntary resignation of the Employee in the absence of Good Reason as defined in Section 4 (c) of this Agreement.\nUpon termination of Employee’s employment with Company For Cause, the Employee shall not be entitled to the Termination Benefits\nin Section 4(d) of this Agreement. Company shall have no further obligation under this Agreement other than payment of accrued but unpaid\nBase Salary, vacation and bonus. [For Cause and Termination Benefits are defined terms.]\nb) Termination Without Cause. The Company may terminate Employee’s employment hereunder at any time without cause, provided,\nhowever, that Employee shall be entitled to the Termination Benefits set forth in Section 4(d) of this Agreement.\nc) Termination for Good Reason. Employee may terminate his employment with the Company for Good Reason (as herein defined). If\nEmployee terminates his employment with the Company for Good Reason (as herein defined), he shall be entitled to the Termination Benefits\nset forth in Section 4(d). For purposes of this Agreement, “Good Reason” shall mean any of the following: (i) any material breach by the\nCompany of this Agreement, which breach is not cured within thirty (30) days following written notice from Employee of such breach; or\n(ii) any significant change in the Employee’s duties and responsibilities, without mutual agreement between Employee and Company.\nd) Termination Benefits. If the Employee is terminated at any time during his employment under the provisions of 4(b) or 4(c), upon\nmutual execution of valid and comprehensive release of any and all claims between them, including an agreement by Company to indemnify,\nhold harmless and defend Employee against any and all existing claims or claims, other than for his gross negligence, fraud, willful\nmisconduct, that may be filed by third parties, including government agencies, naming Employee as a defendant either as an individual or as\nthe President & CEO of the Company, the Employee shall receive “Termination Benefits” as follows:\n1. 500,000 Membership Unit Options of the 1,000,000 Option Grant identified in Section 3(b) herein from the date of termination of\nemployment shall immediately vest and be granted an exercise period of five (5) years. The 500,000 Membership Unit Options subject to\nthis Section 4(d) (1) shall not apply to any Membership Unit Options that have been forfeited in accordance with the Equity Incentive\nPlan and the respective Membership Unit Option Grant Notice and shall be first allocated from any vested Membership Unit Options\nissued under Section 3(c) of this Agreement, and shall then be allocated to any unvested Membership Unit Options issued under\nSection 3(c) of this Agreement;\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n4\n2. One hundred percent (100%) of the remaining 325,000 Membership Unit Option Grants, excluding any Option that have been\nforfeited in accordance with performance objectives, shall immediately vest and be granted an exercise period of five (5) years; and\n3. One time lump-sum payment, equivalent to twelve (12) months Base Salary pursuant to Section 3(a) herein, paid on the date of\ntermination of Employee. This Section 4(d)(3) shall terminate on January 1, 2013.\ne) Cooperation. After notice of termination, Employee shall cooperate with the Company, as reasonably requested by the Company, to\neffect a transition of Employee’s responsibilities and to ensure that the Company is aware of all matters being handled by the Employee.\nf) Disability of Employee. The Company may terminate this Agreement without liability, if Employee shall be permanently prevented\nfrom properly performing his essential duties hereunder with reasonable accommodation by reason of illness or other physical or mental\nincapacity for a period of more than one hundred twenty (120) consecutive days. Upon Employee hire date the Company will obtain a one (1)\nyear Disability insurance policy effective the determined date of disability as described below. Employee will have the opportunity to review\nand acknowledge the Company proposed insurance policy. Upon mutual agreement between Employee and the Company, the Company will\npurchase the mutually agreed one (1) year Disability policy. A medical doctor selected by written agreement of the Employer and the\nEmployee upon the request of either party by notice to the other will determine the disability of Employee. If the Employer and Employee\ncannot agree on the selection of a medical doctor, each of them will select a medical doctor and the two medical doctors will select a third\ndoctor who will determine whether the Employee has a disability. The determination of the medical doctor selected under this Section 4(f) will\nbe binding on both parties. The Employee must submit to a reasonable number of examinations by the medical doctor making the\ndetermination of disability under this Section 4(f), and Employee hereby authorizes the disclosures and release to the Employer of such\ndetermination and all supporting medical records. If the Employee is not legally competent, the Employee’s legal guardian or duly authorized\nattorney-in-fact will act in the Employee’s stead, under this Section 4(f), for the purposes of submitting the Employee to the examinations, and\nproviding the authorization of disclosure, required under this Section 4(f). Upon such termination, Employee shall be entitled to all accrued but\nunpaid Base Salary, accrued bonus (if any) and accrued vacation.\ng) Death of Employee. In the event of the death of Employee, the Company’s obligations hereunder shall be automatically cease and\nterminate; provided, however, that within 15 days the Company shall pay to Employee’s heirs or personal representatives Employee’s accrued\nbut unpaid Base Salary and accrued vacation accrued to the date of death.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n5\n5. Confidential Information.\na) Definition of Confidential Information. The Company has built up an established and extensive trade and reputation in its’ respective\nindustries. The Company has developed and continues to develop commercially valuable technical and non-technical information\n(“Confidential Information”) that is proprietary and confidential and constitutes the Company’s “trade secrets” within the meaning of the Idaho\nTrade Secrets Act, Idaho Code Sections 48-801 - 48-807. Such Confidential Information, which is vital to the success of the Company’s\nbusiness, includes, but is not necessarily limited to: programs, computer programs, system documentation, data compilations, manuals,\nmethods, techniques, processes, patented and/or unpatented technology, research, know-how, development, designs, devices, inventions, the\nidentities of Company’s customers, Company’s suppliers, contracts with suppliers and customers, sales proposals, pricing policies, cost\ninformation, financial information, business plans, specialized requests of Company’s customers, and other materials and documents\ndeveloped by Company. Confidential Information also includes special hardware, product hardware, related software and related\ndocumentation, either owned by Company or in Company’s possession under an agreement of nondisclosure. Through Employee’s\nemployment, Employee may become acquainted with or contribute to the Company’s Confidential Information through inventions,\ndiscoveries, improvements, software development, and/or in other ways. Confidential Information does not include customer names, programs,\nreports or other improvements to documentation, which were owned by Employee prior to being employed by Company. Further, Confidential\nInformation does not include information (i) that was in the public domain at the time of initial disclosure by or enters the public domain\nthereafter through no fault of Employee; (ii) that was already in the possession of Employee at the time of the initial disclosure and not subject\nto any other nondisclosure obligations; (iii) that is independently developed by Employee, outside the term of his employment with the\nCompany, without access to the subject Confidential Information; (iv) that is received by Employee from a third party with no confidential\nrestrictions; or (v) for which disclosure is compelled by a judicial or other governmental order, provided Employee provides Employer with\nprompt notice of such order before disclosure.\nb) Employee Access to Confidential Information. As President & CEO of Company, Employee will need broad access to Company’s\nConfidential Information. Employee agrees that to the extent reasonably possible he will limit access to said Confidential Information under\nhis control only to Company’s other employees whose job functions reasonably necessitate access to such Confidential Information and to\nthird parties only on a need to know basis.\nc) Nondisclosure of Confidential Information. Employee shall not, at any time, either during or subsequent to employment, directly or\nindirectly, appropriate, disclose or divulge any Confidential Information to any person not then employed by Company or any of DBSI’s\naffiliates, unless authorized or directed to do so by Company. Regarding all other third parties, Employee shall use good practices to ensure\nthat a signed confidentiality agreement for the\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n6\nbenefit of Company is or has been obtained from the third party to whom Confidential Information is being disclosed and that all Confidential\nInformation so disclosed is clearly marked “Confidential.”\nd) Return of Confidential and Other Information. All Confidential Information provided to Employee, and all documents and things\nprepared by Employee in the course of Employee’s employment by Company, including but not necessarily limited to correspondence,\ndrawings, blueprints, manuals, letters, notes, lists, notebooks, reports, flow-charts, computer programs, proposals, Day Timers, planners,\ncalendars, schedules, discs, data tapes, financial plans and information, business plans, and other documents and records, whether in hard copy,\nmagnetic media or otherwise, and any and all copies thereof, are the exclusive property of Company and shall be returned immediately to\nCompany upon termination of employment or upon Company’s request at any time.\ne) Ownership of Confidential Information. Employee hereby grants to Company, and Company hereby accepts, the entire right, title, and\ninterest of Employee in and to any of the Confidential Information created or developed by Employee during the term of his employment\n(whether created or developed within or outside the course and scope of Employee’s employment by Company), including, but not limited to,\nall patents, copyrights, trade secrets, and other proprietary rights in or based on the Confidential Information. If the Confidential Information or\nany portion thereof is copyrightable, it shall be deemed to be a “work made for hire,” as such term is defined in the copyright laws of the\nUnited States. Employee shall cooperate with Company or its designees and execute assignments, oaths, declarations, and other documents\nprepared by Company, to effect the terms of this Section 5(e) or to perfect or enforce any proprietary rights resulting from or related to this\nAgreement. Within reason and in accordance with industry practice, such cooperation and execution shall be at no additional compensation to\nEmployee; provided, however, Company shall reimburse Employee for reasonable out-of-pocket expenses incurred at the specific request of\nCompany,\n6. Non-competition Obligations. During Employee’s employment with Company, and for a period of twelve (12) months immediately\nfollowing termination (the “Non-competition Obligation”) of such employment, Employee will not, directly or indirectly, at any place in the\nworld, engage or become interested (as owner, stockholder, partner, director, officer, member, creditor, consultant, or employee) in any\nbusiness in competition with the business conducted by Company at any time during Employee’s employment with Company. Employee\nacknowledges that Company is doing business throughout the world, that Employee is reasonably expected to have contact with Company’s\ncustomers throughout the world during the term of Employee’s employment with Company, and that the worldwide geographic scope of this\ncovenant is reasonably necessary to protect Company’s legitimate business interests.\n7. Customer Non-Solicitation. Employee will not, during the term of employment with Company and for a period of twelve (12) months\nimmediately following termination of employment, solicit, divert, take away from the\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n7\nCompany, or attempt to solicit, divert or take away, any of Company’s customers with related business or the related business or patronage of\nany such customers, either for himself or on behalf of any other person, partnership, corporation or other entity. This restriction against\nsolicitation shall apply only to solicitations, which directly or indirectly compete with the business of the Company that Company is/was\nengaged in while Employee worked for Company.\n8. Co-Emplovee Non-Solicitation. Employee will not, during the term of employment with Company and for a period of twelve (12) months\nfollowing the termination of such employment for any reason, solicit, recruit and hire any other employee of Company, either for himself or on\nbehalf of any other person, partnership, corporation or other entity.\n9. Enforcement.\na) Reasonableness of Restrictions. Employee and Company acknowledges that compliance with this Agreement is reasonable and\nnecessary to protect both parties’ legitimate business interests, including but not limited to both parties’ goodwill.\nb) Irreparable Harm. Employee and Company acknowledges that a breach of either party’s obligations under this Agreement will result\nin great, irreparable and continuing harm and damage to the other party for which there is no adequate remedy at law.\nc) Injunctive Relief. Employee agrees that in the event Employee breaches this Agreement, Company shall be entitled to seek, from any\ncourt of competent jurisdiction, preliminary and permanent injunctive relief to enforce the terms of this Agreement, in addition to any and all\nmonetary damages allowed by law, against Employee. Further, Company agrees that in the event Company breaches this Agreement,\nEmployee shall be entitled to seek, from any court of competent jurisdiction, preliminary and permanent injunctive relief to enforce the terms\nof this Agreement, in addition to any and all monetary damages allowed by law, against Company.\nd) Extension of Covenants. In the event Employee violates any one or more of the covenants contained in Sections 6 through 8 of this\nAgreement, Employee agrees that the running of the term of each covenant so violated shall be tolled during the period(s) of any such violation\nand the pendency of any litigation arising out of any such violation. Further, in the event Company violates any one or more of the covenants\ncontained in Sections 6 through 8 of this Agreement, Company agrees that the running of the term of each covenant so violated shall be tolled\nduring the period(s) of any such violation and the pendency of any litigation arising out of any such violation.\ne) Judicial Modification. The parties have attempted to limit the Employee’s right to compete only to the extent necessary to protect\nCompany from unfair business practices and/or unfair competition. The parties recognize, however, that reasonable people may differ in\nmaking such a determination.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n8\nConsequently, the parties hereby agree that, if the scope or enforceability of the restrictive covenant is in any way disputed at any time, a court\nor other trier of fact may modify and enforce the covenant to the extent that it believes to be reasonable under the circumstances existing at that\ntime.\nf) Attorney Fees. In the event it becomes necessary for either party to this Agreement to institute a suit at law or in equity for the\npurposes of enforcing any of the provisions of this Agreement, the prevailing party shall be entitled to recover said party’s reasonable\nattorney’s fees, plus court costs and expenses, from the non-prevailing party.\ng) Withholding from Final Paycheck. If not prohibited by federal, state or local laws, Employee expressly authorizes Company to\nwithhold and deduct from Employee’s final wages any amounts owed by Employee to Company at the time of the termination of employment,\nincluding but not limited to the value of unreturned or willfully damaged Company property. Employee further expressly agrees to repay to\nCompany any additional agreed-upon sums owed by Employee to Company (above that which can be withheld) immediately upon termination\nof Employee’s employment.\nh) Alternative Dispute Resolution. In the event a dispute between the parties arises under this Agreement, prior to filing an action of any\nkind each Party agrees to mediation of the dispute or disputes and shall participate in good faith. The mediation shall be conducted by a\nprofessional neutral mediator under the Mediation Rules of the American Arbitration Association but not necessarily in that forum.\n10. Indemnity. Employee warrants and represents that Employee has not knowingly and intentionally violated, is not knowingly and\nintentionally violating, and will not knowingly and intentionally violate any of the terms or conditions of any prior employment agreement,\nrestrictive covenant, or other similar agreement entered into by Employee while in the employment of any other company; that Employee has\nnot knowingly and intentionally given and will not knowingly and intentionally give to the Company at any time any customer list, trade\nsecret, or any other item of confidential information, obtained or received while in the employment of any other company in violation of any\nemployment agreement, restrictive covenant or similar agreement entered into while in the employment of any other company; that, to the best\nof Employee’s knowledge. Employee’s employment with the Company as contemplated and provided for hereby is not materially restricted or\nmaterially limited in any way by any such employment agreement or restrictive covenant or by operation of any state, federal or local\nregulation, statute or other law of any kind, name or nature, including but not limited to trade secret laws and immigration laws; and that\nEmployee is in all respects duly qualified and eligible to work for the Company. In the event of a final legal adjudication (after exhausting any\nright of appeal) of Employee’s material violation of one or more of the warranties or representations set forth above in this section, Employee\nagrees to indemnify the Company for all damages, costs and expenses, including reasonable attorney fees, which the Company may have to\npay in connection with a legal or administrative action against the Company or\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n9\nEmployee arising there from; provided, however, in the event any damages, costs and expenses are incurred by the Company for which\nEmployee is otherwise obligated to indemnify the Company are covered under any insurance policy or policies of the Company, then the\nCompany shall be obligated to exhaust all available insurance as a condition to the exercise of its right of indemnification hereunder (and the\nCompany waives all rights of subrogation in connection therewith) and Employee’s indemnification obligation hereunder shall be reduced in\nproportion to the extent of such insurance. Company warrants and represents it has no knowledge as of the date hereof that Employee is or\nmay become in violation of any of the warranties and representations made by him above.\n11. Miscellaneous.\na) Survival. Employee understands that this Agreement shall be effective as of the date first written above and that the terms of this\nAgreement shall remain in full force and effect not only during the continuation of Employee’s employment, but also after the termination of\nemployment for any reason by Company or Employee.\nb) Waiver. Failure of the Company or Employee to exercise or otherwise act with respect to any of its rights under this Agreement shall\nnot be construed as a waiver of any breach, nor prevent the Company or Employee from thereafter enforcing strict compliance with any and all\nterms of this Agreement.\nc) Severability. If any part of this Agreement shall be adjudicated to be invalid or unenforceable, as to duration, territory or otherwise,\nthen such part shall be deemed deleted from this Agreement or amended, as the case may be, in order to render the remainder of this\nAgreement valid and enforceable.\nd) Agreement Binding. This Agreement shall be binding upon and inure to the benefit of Company, Company’s successors and assigns,\nEmployee and Employee’s heirs, executors, administrators and legal representatives.\ne) Governing Law. This Agreement is made and entered into in the State of California, where Company has its principal place of\nbusiness, and concerns employment situated in said state. This Agreement shall be interpreted and construed in accordance with the laws of the\nState of California.\nf) Titles and Captions. All section and paragraph titles and captions contained in this Agreement are for convenience only and shall not\nbe deemed part of the context nor affect the construction or interpretation of this Agreement.\ng) Entire Agreement. This Agreement, which includes all Attachments incorporated herein and attached hereto, contains all the\nunderstandings and agreements between the parties concerning matters set forth in this Agreement. The terms of this Agreement supersede any\nand all prior statements, representations and agreements by or between Company and Employee, or either of them, concerning the matters set\nforth in this Agreement.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n10\nEmployee acknowledges that no person who is an agent or employee of Company may orally or by conduct modify, delete, vary, or contradict\nthe terms or conditions of this Agreement or this paragraph. This Agreement may be modified only by a written agreement signed by both\nparties.\nh) Separate Counsel. Company’s attorneys have not represented Employee, and Employee has been advised that it is important for him\nto seek legal advice and representation in this matter.\nThe parties acknowledge and agree that they have read and understood the entire contents of this Agreement and Employee\nacknowledges that he has received a copy of this Agreement.\nCompany:\nGigOptix LLC,\na California limited liability company\n/s/ Paul Judge\nBy: Paul Judge\nIts: Compensation Committee Member, and Member of\nthe Management Board\nEmployee:\n/s/ Avi Katz\nAvi Katz\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n11\nATTACHMENT “A”\nMANAGEMENT BY OBJECTIVES (MBO’S)\nUpon execution of this Agreement, Employee and Company shall mutually establish and confirm through a Company Management Board\nResolution the following fair and reasonable goals (MBO’s) which, when met, shall remove restrictions on certain Company Membership Units,\nrelated in Section 3(b) of this Employment, Confidentiality and Non-Competition Agreement:\n•\n250,000 Restricted Membership Unit grants with 2007 MBO and grant restrictions to be mutually determined between the Management\nBoard and Employee.\n•\n75,000 restricted Membership Unit grants with completion of fund raising, with Management Board approval, during 2007 & 2008,\nwhich does not include the 2007 approved Financial Plan or funds approved in association with the acquisition of Helix AG.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n12\nATTACHMENT “B”\nCEO & President Duties and Responsibilities\n1. Employee shall report directly to Company’s Management Board. Employee shall own all responsibilities for leading, planning, driving and\nexecuting all vision and business initiatives of the Company, working under the general directions and guidelines of the Board which will make\nassignments in terms of broadly defined missions.\n2. Employee shall provide leadership, experience and corporate governance required to transform the vision and product offerings of Company into a\ngrowing profitable business with the goal of maximizing’ ROI.\n3. Employee’s key responsibilities include:\na. The initial responsibility of Employee is to immediately commence an assessment of the viability of the Company and the likelihood of\nfuture growth under the current or other strategic plans, based on the quality and differentiation of its technology, and the preparation of a\nrecommendation to the Board to proceed toward fund raising and growth or other potential plans in the best interest of the Company’s Members.\nb. If the Board determines the direction the Company shall take under the MBO’s above, Employee shall develop a new business model\naccordingly, such as to execute the transition from a customer NRE-focus company to a company with a product portfolio focused on profitable\nreoccurring product revenue.\nc. In any decision scenario, Employee shall develop clear and precise business plans with appropriate strategies, objectives, initiatives, and\nindicator measurements. He shall maintain focus and guide the Company’s employees to consistent execution of approved business plans, as\napproved by the Board, reporting to the Board both quarterly and annually.\nd. Employee shall be responsible for building a strong, professional and highly motivated Executive Team, including new executives, with\nBoard involvements and approval, all of whom are capable of contributing to the Company goal of sustained and profitable growth.\ne. Employee shall articulate and implement the Company’s vision to create a business plan, goals, and objectives that will evolve with\ncontinued growth of profitability by balancing technical and business resources.\nf. Employee shall lead Company toward the achievement of aggressive sales growth targets for 2007, 2008 and beyond by rapidly penetrating\ntarget customer accounts and markets while establishing competitive barriers for entry, producing a product roadmap and driving new product and\ntechnology introductions to address expanding market opportunities using strong domestic and international industry relationships as leverage into\nsales, particularly with line card providers and system integrators, as well as with OEM partners.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n13\ng. Employee shall seek adequate funding sufficient to meet Company objectives: to grow the business, as per mutually agreed upon guidelines\nbetween the Employee and the Board. The employee will work with the current investors to lead a broad and successful fund raising process.\nh. Employee shall develop Business Plans with measurable initiatives and strategies that are aligned. These Business Plans will be\nprofessionally presented to the Board, and in some cases involve the Board prior to presentation, for formal Board approval. The Board for\nconsistent execution of approved Business Plans, relative initiatives, and MBO’s will hold Employee and his team accountable. Employee will be\npro-active involving the Board when Business Plans appear not to be achieved and thus developing a new course of execution pro-actively and\nachieve Board approval of revised Business Plans.\ni. Employee shall build a company culture of excellence based on performance, integrity, accountability, customer service, teamwork, candor\nand respect for others (Live, Love, Learn, Leave a Legacy).\nj. Employee shall seek to expand Company’s intellectual property portfolio, and secure all existing IP. He will also work with the investor ’s\nlegal department to secure existing IP under appropriate patents, and to survey the IP market for potential infringements on the company’s IP, as well\nas potential infringements of the company on existing IP.\nk. Help to expand and strengthen the Board by recommending and recruiting, with the Board, new members including representatives of\nindustry and the relevant professions.\nl. Work with the Board to develop valuation strategies, which would achieve a value return to investors and shareholders.\nThis CEO & President Duties and Responsibilities are considered a “working document” that may change from time to time and in such event will\nbe documented and mutually agreed between Employee and Board.\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\n14\nGIGOPTIX LLC\nEQUITY INCENTIVE PLAN\nOPTION GRANT NOTICE\nGigOptix LLC, (the “Company”) pursuant to its Equity Incentive Plan (the “Plan”), hereby grants to Optionholder an option to purchase the number\nof the Company’s Units set forth below. This option is subject to all of the terms and conditions as set forth herein and in the Unit Option\nAgreement, the Plan, the Notice of Exercise and the Company’s Operating Agreement (the “Operating Agreement”). The Unit Option Agreement,\nthe Plan, the Notice of Exercise and the Operating Agreement are attached hereto and incorporated herein their entirety.\nOptionholder:\nAvi Katz\nDate of Grant:\nAugust 1, 2007\nDate Option Rights are Terminated if Not Exercised*:\nAugust 1, 2017\nNumber of Units Subject to Option:\n1,000,000\nExercise Price (Per Unit):\n$0.10\nTotal Exercise Price:\nOne Hundred Thousand Dollars ($100,000)\nExercise Schedule:\nSame as Vesting Schedule\nVesting Schedule: Options vest at the rate of 1/4 the first year based on the anniversary of the Grant date and at a rate of one thirty-sixth ( 1 /36) of the\nremaining units per month over the remaining three years.\nDate of Vesting\nNumber of Unit Options that can be Exercised\nAugust 1, 2008\n250,000\nFirst of each month thereafter through December 31, 2011\nContact your Plan Administrator for your current vested amount\n* Option may terminate on earlier events, such as termination of Continuous Service, Optionholder’s Disability or Death. See the Unit Option\nAgreement and the Plan for further details.\nPayment: By cash or check\nConfidentiality: The undersigned Optionholder acknowledges and agrees that the information contained in this Option Grant Notice shall remain\nconfidential and Optionholder shall not divulge or reveal, either directly or indirectly, the amount or extent of equity or options granted herein or any\nother material term to any other co-worker, employee or third party (other than a license professional advisor) without the express written consent of\nthe Company. Any breach of this confidentiality agreement may result in complete forfeiture of the option or equity.\nAdditional Terms/Acknowledgments: Options shall not be exercised prior to January 1, 2008. The undersigned Optionholder acknowledges\nreceipt of, and understands and agrees to, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating Agreement.\nOptionholder further acknowledges that as of the Date of Grant, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating\nAgreement set forth the entire understanding between the Optionholder and the Company regarding the purchase of Units in the Company.\nOptionholder also agrees to execute all such further documentation as the Board of Managers may reasonably require.\nGIGOPTIX LLC:\nOPTIONHOLDER:\nBy: /s/ Paul F. Judge\nDate: 3/26/08\n/s/ Avi Katz\nDate: 3/26/08\nPaul F. Judge, Management Board Member\n(Name)\nATTACHMENTS: Unit Option Agreement, Plan, Notice of Exercise, Operating Agreement and Memorandum to Plan Participants.\nGIGOPTIX LLC\nEQUITY INCENTIVE PLAN\nOPTION GRANT NOTICE\nGigOptix LLC, (the “Company”) pursuant to its Equity Incentive Plan (the “Plan”), hereby grants to Optionholder an option to purchase the number\nof the Company’s Units set forth below. This option is subject to all of the terms and conditions as set forth herein and in the Unit Option\nAgreement, the Plan, the Notice of Exercise and the Company’s Operating Agreement (the “Operating Agreement”). The Unit Option Agreement,\nthe Plan, the Notice of Exercise and the Operating Agreement are attached hereto and incorporated herein their entirety.\nOptionholder:\nAvi Katz\nDate of Grant:\nAugust 1, 2007\nDate Option Rights are Terminated if Not Exercised*:\nAugust 1, 2017\nNumber of Units Subject to Option:\n325,000\nExercise Price (Per Unit):\n$0.10\nTotal Exercise Price:\nThirty Two Thousand Five Hundred Dollars ($32,500)\nExercise Schedule:\nSame as Vesting Schedule except that no units can be exercised prior\nto January 1, 2008.\nExercise Term:\nIn the event the Optionholder’s Continuous Service Terminates, the\nOptionholder may exercise his or her vested Options but only within\nsuch period of time ending on the earlier of (i) the date five years\nfollowing termination of the Optionholders Continuous Service, or\n(ii) the expiration of the term of the Option as set forth in this Option\nGrant.\nVesting Schedule: Options vesting is based on performance as governed by the GigOptix Management Board.\nDate of Vesting\nNumber of Unit Options that can be Exercised\nAugust 1, 2007\n250,000**\nTBD (effective on completion date)\nAn additional 75,000 eligible for vesting, based on successfully completing a\nfunding event as governed by GigOptix Management Board.\n*\nOption may terminate on earlier events, such as termination of Continuous Service, Optionholder’s Disability or Death. See the Unit Option\nAgreement and the Plan for further details.\n**\nMay only be exercised after January 1, 2008.\nPayment: By cash or check\nConfidentiality: The undersigned Optionholder acknowledges and agrees that the information contained in this Option Grant Notice shall remain\nconfidential and Optionholder shall not divulge or reveal, either directly or indirectly, the amount or extent of equity or options granted herein or any\nother material term to any other co-worker, employee or third party (other than a license professional advisor) without the express written consent of\nthe Company. Any breach of this confidentiality agreement may result in complete forfeiture of the option or equity.\nAdditional Terms/Acknowledgments: Options shall not be exercised prior to January 1, 2008. The undersigned Optionholder acknowledges\nreceipt of, and understands and agrees to, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating Agreement.\nOptionholder further acknowledges that as of the Date of Grant, this Option Grant Notice, the Unit Option Agreement, the Plan and the Operating\nAgreement set forth the entire understanding between the Optionholder and the Company regarding the purchase of Units in the Company.\nOptionholder also agrees to execute all such further documentation as the Board of Managers may reasonably require.\nGIGOPTIX LLC:\nOPTIONHOLDER:\nBy: /s/ Paul F. Judge\nDate: 3/26/08\n/s/ Avi Katz\nDate: 3/26/08\nPaul F. Judge, Management Board Member\n(Name)\nATTACHMENTS: Unit Option Agreement, Plan, Notice of Exercise, Operating Agreement and Memorandum to Plan Participants.
+db004ff0a64417b9987241241b209c69.pdf	effective_date jurisdiction party term	Exhibit A\nNon-Disclosure Agreement\nOctober 2, 2017\nReference is made to the Settlement Agreement, dated October 2, 2017 (the “Settlement Agreement”), by and among the Potbelly\nCorporation (the “Company”), the Ancora Parties and Joseph Boehm, as representative of the Ancora Parties (the “Director”). Capitalized terms\nused but not defined herein shall have the meanings ascribed to them in the Settlement Agreement, and the rules of interpretation set forth in the\nSettlement Agreement shall apply to this Non-Disclosure Agreement mutatis mutandis.\nThe Director may be provided certain information and data in connection with his serving as a director of the Company that the Company\nwishes to keep confidential, including information (whether furnished in writing or electronic format or orally) regarding the Company’s\ngovernance, board of directors, management, plans, strategies, business, finances or operations and information that the Company has obtained\nfrom third parties and with respect to which the Company is obligated to maintain confidentiality (collectively, “Confidential Information”).\nExcept as provided in this Non-Disclosure Agreement, the Director will not disclose any Confidential Information in any manner whatsoever or\nuse any Confidential Information other than in connection with serving as a director of the Company without, in each instance, securing the prior\nwritten consent of the Company (acting through a resolution of a majority of the Company’s directors).\nExcept as set forth in this paragraph, this Non-Disclosure Agreement shall not prevent the Director from privately disclosing Confidential\nInformation to (i) officers, directors, accountants and counsel for the Company, (ii) the Director’s legal counsel or legal counsel to the Ancora\nParties (each a “Director Representative” and collectively, the “Director Representatives”) who needs to know such information for the sole\npurpose of advising the Director on his actions as a director of the Company or advising Ancora Advisors, LLC (“Ancora Advisors”) and the\nAncora Parties (or the Ancora Affiliates) on its (or their) investment(s) in the Company or (iii) Frederick DiSanto, James Chadwick and Brian\nHopkins, each an associate of Ancora Advisors (each an “Ancora Principal” and, collectively, the “Ancora Principals”). Notwithstanding the\nforegoing, it is understood and agreed that the Director will not disclose any information that the Director learns or obtains in his capacity as a\ndirector of the Company to any Director Representative or any Ancora Principal to the extent such disclosure would be reasonably likely to\nconstitute a waiver of the attorney-client privilege between the Company and its counsel or the Company’s attorney work product privilege. Any\nDirector Representative shall only be provided Confidential Information to the extent that such Director Representative is informed of the\nconfidential nature of the Confidential Information and agrees or is otherwise obligated to keep such information confidential and to restrict the\nuse of such confidential information in accordance with the terms of this Non-Disclosure Agreement. The Ancora Principals agree to keep\nconfidential the Confidential Information and to restrict the use of such Confidential Information in accordance with the terms of this\nNon-Disclosure Agreement, to be bound by this Non-Disclosure Agreement on the same terms as the Director by countersigning this\nA-1\nNon-Disclosure Agreement and not to use any Confidential Information in a manner that may be detrimental to the Company or its subsidiaries.\nThe Director, Ancora Advisors and the Ancora Parties shall be responsible for any breach of this Agreement by the Director, any Director\nRepresentatives, Ancora Advisors, the Ancora Parties or Ancora Principals.\nThe term “Confidential Information” shall not include information that (a) is at the time of disclosure or thereafter becomes generally\navailable to the public other than as a result of a disclosure by the Director, Ancora Advisors, the Ancora Parties, a Director Representative or an\nAncora Principal in violation of the terms of this Non-Disclosure Agreement; (b) was, prior to disclosure by the Company, already in the\npossession of the Director, a Director Representative, Ancora Advisors, the Ancora Parties or an Ancora Principal; provided that the source of\nsuch information was, to such person’s knowledge, not bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Company; (c) becomes available to the Director, a Director Representative, Ancora Advisors, the Ancora\nParties or an Ancora Principal on a non-confidential basis from a source other than the Company, an affiliate of the Company or an agent,\nrepresentative, attorney, advisor, director, officer or employee of the Company (collectively, the “Company Representatives”) that is, to such\nperson’s knowledge, not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the\nCompany, and is not, to such person’s knowledge, under an obligation to the Company not to transmit the information to such person; or (d) was\nindependently developed by the Director, a Director Representative, Ancora Advisors, the Ancora Parties or an Ancora Principal without\nreference to or use of the Confidential Information.\nThe Director is aware, and will advise any Director Representative or an Ancora Principal who is informed of the matters that are the\nsubject of this Non-Disclosure Agreement, that the Confidential Information may constitute material, non-public information and of the\nrestrictions imposed by the United States securities laws on the purchase or sale of securities by any person who is aware of material, non-public\ninformation and on the communication of such information to any other person who may purchase or sell such securities on the basis of such\ninformation. The Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal to whom the Director\ntransmits Confidential Information under this Non-Disclosure Agreement will comply with all applicable federal and state securities laws in\nconnection with the purchase or sale, directly or indirectly, of securities of the Company or any other entity of which the Director is provided\nmaterial non-public information in his capacity as a director of the Company for as long as the Director, Ancora Advisors, the Ancora Parties any\nDirector Representative or any Ancora Principal are in possession of material non-public information about the Company. The Director and the\nCompany acknowledge that none of the provisions hereto shall in any way limit Ancora Advisors’, the Ancora Parties’ or the Ancora Principals’\nactivities in the ordinary course of business if such activities will not violate applicable securities laws or the obligations set forth in this\nNon-Disclosure Agreement.\nEach of the Director, any Ancora Principal and any Director Representative to whom the Director transmits Confidential Information under\nthis Non-Disclosure Agreement acknowledges, or shall be deemed to acknowledge, that none of the Company, any affiliate of the Company or\nany Company Representative makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation. None of the\nA-2\nCompany, any affiliate of the Company or any Company Representative shall have any liability to the Director, Ancora Advisors, the Ancora\nParties, any Director Representative or any Ancora Principal hereunder relating to or resulting from the use of the Confidential Information by\nthe Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal or any errors in or omissions from the\nConfidential Information.\nIn the event that the Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal is requested in any\nproceeding or governmental inquiry to disclose any Confidential Information, the Director will give the Company prompt written notice, to the\nextent not legally prohibited, of such request so that the Company may seek an appropriate protective order (at the Company’s sole expense) or\nwaive compliance with the applicable provisions of this Non-Disclosure Agreement. If the Company seeks a protective order, the Director,\nAncora Advisors, the Ancora Parties, and the Ancora Principals agree to, and shall cause any Director Representative to, provide such\ncooperation as the Company shall reasonably request and in no event will they oppose action by the Company to obtain a protective order or\nother relief to prevent the disclosure of Confidential Information or to obtain reliable assurance that confidential treatment will be afforded to the\nConfidential Information. If in the absence of a protective order, the Director, Ancora Advisors, the Ancora Parties, any Director Representative\nor any Ancora Principal, based upon the advice of counsel, is legally required to disclose Confidential Information, such person or entity may\ndisclose without liability under this Non-Disclosure Agreement such portion of the Confidential Information that counsel advises that the\nDirector, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal is legally required to disclose, so long as the\nrecipient of such Confidential Information is informed of this Non-Disclosure Agreement and the confidential nature of such Confidential\nInformation. For the avoidance of doubt, there shall be no legal requirement applicable to the Director, Ancora Advisors, the Ancora Parties, or\nthe Ancora Principals to disclose any Confidential Information solely by virtue of the fact that, absent such disclosure, such parties would be\nprohibited from purchasing, selling, or engaging in derivative or other transactions with respect to securities of the Company.\nThe parties agree that irreparable damage would occur in the event any of the provisions of this Non-Disclosure Agreement were not\nperformed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly,\nthe parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Non- Disclosure Agreement and to enforce\nspecifically the terms and provisions of this Non-Disclosure Agreement in the Court of Chancery or other federal or state courts of the State of\nDelaware (the “Delaware Courts”), in addition to any other remedies at law or in equity, and each party agrees it will not take any action, directly\nor indirectly, in opposition to the party seeking relief on the grounds that any other remedy or relief is available at law or in equity. Each of the\nparties hereto agrees to waive any bonding requirement under any applicable law, in the case any other party seeks to enforce the terms by way\nof equitable relief. In the event of litigation relating to this Non-Disclosure Agreement, if a court of competent jurisdiction determines that this\nNon-Disclosure Agreement has been breached, the breaching party will reimburse the non-breaching party for its reasonable and documented\nout-of-pocket costs and expenses (including legal fees and expenses) incurred in connection with all such litigation (including any appeal relating\nthereto). Furthermore, each of the parties hereto irrevocably (a)\nA-3\nconsents to submit itself to the personal jurisdiction of the Delaware Courts in the event any dispute arises out of this Non-Disclosure Agreement,\n(b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from the Delaware Courts,\nagrees that it shall not bring any action relating to this Non-Disclosure Agreement in any court other than the Delaware Courts, (d) waives the\nright to trial by jury, and consents to service of process by the United States Postal Service or reputable overnight mail delivery service, in each\ncase, signature requested, to the address set forth in Section 14 of the Settlement Agreement or as otherwise provided by applicable law. THIS\nNON-DISCLOSURE AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITH RESPECT TO VALIDITY,\nINTERPRETATION, EFFECT AND ENFORCEMENT, BY THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO\nTHE CHOICE OF LAW PRINCIPLES THEREOF THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANY\nOTHER JURISDICTION.\nThis Non-Disclosure Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by either party\nin exercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any\nright hereunder.\nThe provisions of this Non-Disclosure Agreement relating to confidentiality shall terminate two (2) years after the Director (or any\nReplacement) ceases to be a director of the Company. The invalidity or unenforceability of any provision of this Non-Disclosure Agreement shall\nnot affect the validity or enforceability of any other provision hereof.\nAll Confidential Information shall remain the property of the Company and none of the Directors, Ancora Advisors, the Ancora Parties,\nany Director Representative or any Ancora Principal shall by virtue of any disclosure of or use of any Confidential Information acquire any\nrights with respect thereto, all of which rights (including all intellectual property rights) shall remain exclusively with the Company. At any time\nafter the date on which the Director (or any Replacement) is no longer a director of the Company, upon the request of the Company for any\nreason, the Director and the Ancora Principals will, and will cause Ancora Advisors, the Ancora Parties, and any Director Representative to,\npromptly return to the Company or destroy all hard copies of the Confidential Information and use reasonable efforts to permanently erase or\ndelete all electronic copies of the Confidential Information in the possession or control of the Director, Ancora Advisors, the Ancora Parties, any\nDirector Representative or any Ancora Principal. Notwithstanding anything to the contrary contained in this paragraph, the Director, the Ancora\nPrincipals, Ancora Advisors, the Ancora Parties and any Director Representative shall be permitted to retain such Confidential Information as is\nnecessary to enable them to comply with any applicable document retention requirements under applicable law or regulation and to retain any\ncomputer records and computer files containing any Confidential Information if required pursuant to their respective current automatic archiving\nand backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as the case may be.\nUnless and until any Replacement executes a joinder to this Non-Disclosure Agreement and agrees to be bound by the terms hereof\napplicable to the Director, the Ancora Principals shall not be permitted to discuss Confidential Information with, or obtain Confidential\nInformation from, such substitute director.\nA-4\nAcceptance of the above terms shall be indicated by having this Non-Disclosure Agreement countersigned by the Director, the Ancora\nPrincipal, Ancora Advisors and the Ancora Parties.\nSincerely,\nIN WITNESS WHEREOF, the Parties hereto have each executed this Agreement on the date set forth below.\nDated: October 2, 2017\nPOTBELLY CORPORATION\nBy:\n/s/ Pete Bassi\nName: Pete Bassi\nTitle:\nChairman of the Board\nANCORA ADVISORS, LLC\nBy:\n/s/ Fred DiSanto\nName: Fred DiSanto\nTitle:\nChairman & CEO\n/s/ Frederick DiSanto\nFrederick DiSanto\n/s/ James Chadwick\nJames Chadwick\n/s/ Brian Hopkins\nBrian Hopkins\n/s/ Joseph Boehm\nJoseph Boehm\nA-5	Exhibit A\nNon-Disclosure Agreement\nOctober 2, 2017\nReference is made to the Settlement Agreement, dated October 2, 2017 (the “Settlement Agreement”), by and among the Potbelly\nCorporation (the “Company”), the Ancora Parties and Joseph Boehm, as representative of the Ancora Parties (the “Director”). Capitalized terms\nused but not defined herein shall have the meanings ascribed to them in the Settlement Agreement, and the rules of interpretation set forth in the\nSettlement Agreement shall apply to this Non-Disclosure Agreement mutatis mutandis.\nThe Director may be provided certain information and data in connection with his serving as a director of the Company that the Company\nwishes to keep confidential, including information (whether furnished in writing or electronic format or orally) regarding the Company’s\ngovernance, board of directors, management, plans, strategies, business, finances or operations and information that the Company has obtained\nfrom third parties and with respect to which the Company is obligated to maintain confidentiality (collectively, “Confidential Information™).\nExcept as provided in this Non-Disclosure Agreement, the Director will not disclose any Confidential Information in any manner whatsoever or\nuse any Confidential Information other than in connection with serving as a director of the Company without, in each instance, securing the prior\nwritten consent of the Company (acting through a resolution of a majority of the Company’s directors).\nExcept as set forth in this paragraph, this Non-Disclosure Agreement shall not prevent the Director from privately disclosing Confidential\nInformation to (i) officers, directors, accountants and counsel for the Company, (ii) the Director’s legal counsel or legal counsel to the Ancora\nParties (each a “Director Representative” and collectively, the “Director Representatives”) who needs to know such information for the sole\npurpose of advising the Director on his actions as a director of the Company or advising Ancora Advisors, LLC (“Ancora Advisors”) and the\nAncora Parties (or the Ancora Affiliates) on its (or their) investment(s) in the Company or (iii) Frederick DiSanto, James Chadwick and Brian\nHopkins, each an associate of Ancora Advisors (each an “Ancora Principal” and, collectively, the “Ancora Principals”). Notwithstanding the\nforegoing, it is understood and agreed that the Director will not disclose any information that the Director learns or obtains in his capacity as a\ndirector of the Company to any Director Representative or any Ancora Principal to the extent such disclosure would be reasonably likely to\nconstitute a waiver of the attorney-client privilege between the Company and its counsel or the Company’s attorney work product privilege. Any\nDirector Representative shall only be provided Confidential Information to the extent that such Director Representative is informed of the\nconfidential nature of the Confidential Information and agrees or is otherwise obligated to keep such information confidential and to restrict the\nuse of such confidential information in accordance with the terms of this Non-Disclosure Agreement. The Ancora Principals agree to keep\nconfidential the Confidential Information and to restrict the use of such Confidential Information in accordance with the terms of this\nNon-Disclosure Agreement, to be bound by this Non-Disclosure Agreement on the same terms as the Director by countersigning this\nA-1\nNon-Disclosure Agreement and not to use any Confidential Information in a manner that may be detrimental to the Company or its subsidiaries.\nThe Director, Ancora Advisors and the Ancora Parties shall be responsible for any breach of this Agreement by the Director, any Director\nRepresentatives, Ancora Advisors, the Ancora Parties or Ancora Principals.\nThe term “Confidential Information” shall not include information that (a) is at the time of disclosure or thereafter becomes generally\navailable to the public other than as a result of a disclosure by the Director, Ancora Advisors, the Ancora Parties, a Director Representative or an\nAncora Principal in violation of the terms of this Non-Disclosure Agreement; (b) was, prior to disclosure by the Company, already in the\npossession of the Director, a Director Representative, Ancora Advisors, the Ancora Parties or an Ancora Principal; provided that the source of\nsuch information was, to such person’s knowledge, not bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Company; (c) becomes available to the Director, a Director Representative, Ancora Advisors, the Ancora\nParties or an Ancora Principal on a non-confidential basis from a source other than the Company, an affiliate of the Company or an agent,\nrepresentative, attorney, advisor, director, officer or employee of the Company (collectively, the “Company Representatives™) that is, to such\nperson’s knowledge, not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the\nCompany, and is not, to such person’s knowledge, under an obligation to the Company not to transmit the information to such person; or (d) was\nindependently developed by the Director, a Director Representative, Ancora Advisors, the Ancora Parties or an Ancora Principal without\nreference to or use of the Confidential Information.\nThe Director is aware, and will advise any Director Representative or an Ancora Principal who is informed of the matters that are the\nsubject of this Non-Disclosure Agreement, that the Confidential Information may constitute material, non-public information and of the\nrestrictions imposed by the United States securities laws on the purchase or sale of securities by any person who is aware of material, non-public\ninformation and on the communication of such information to any other person who may purchase or sell such securities on the basis of such\ninformation. The Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal to whom the Director\ntransmits Confidential Information under this Non-Disclosure Agreement will comply with all applicable federal and state securities laws in\nconnection with the purchase or sale, directly or indirectly, of securities of the Company or any other entity of which the Director is provided\nmaterial non-public information in his capacity as a director of the Company for as long as the Director, Ancora Advisors, the Ancora Parties any\nDirector Representative or any Ancora Principal are in possession of material non-public information about the Company. The Director and the\nCompany acknowledge that none of the provisions hereto shall in any way limit Ancora Advisors’, the Ancora Parties’ or the Ancora Principals’\nactivities in the ordinary course of business if such activities will not violate applicable securities laws or the obligations set forth in this\nNon-Disclosure Agreement.\nEach of the Director, any Ancora Principal and any Director Representative to whom the Director transmits Confidential Information under\nthis Non-Disclosure Agreement acknowledges, or shall be deemed to acknowledge, that none of the Company, any affiliate of the Company or\nany Company Representative makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation. None of the\nA-2\nCompany, any affiliate of the Company or any Company Representative shall have any liability to the Director, Ancora Advisors, the Ancora\nParties, any Director Representative or any Ancora Principal hereunder relating to or resulting from the use of the Confidential Information by\nthe Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal or any errors in or omissions from the\nConfidential Information.\nIn the event that the Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal is requested in any\nproceeding or governmental inquiry to disclose any Confidential Information, the Director will give the Company prompt written notice, to the\nextent not legally prohibited, of such request so that the Company may seek an appropriate protective order (at the Company’s sole expense) or\nwaive compliance with the applicable provisions of this Non-Disclosure Agreement. If the Company seeks a protective order, the Director,\nAncora Advisors, the Ancora Parties, and the Ancora Principals agree to, and shall cause any Director Representative to, provide such\ncooperation as the Company shall reasonably request and in no event will they oppose action by the Company to obtain a protective order or\nother relief to prevent the disclosure of Confidential Information or to obtain reliable assurance that confidential treatment will be afforded to the\nConfidential Information. If in the absence of a protective order, the Director, Ancora Advisors, the Ancora Parties, any Director Representative\nor any Ancora Principal, based upon the advice of counsel, is legally required to disclose Confidential Information, such person or entity may\ndisclose without liability under this Non-Disclosure Agreement such portion of the Confidential Information that counsel advises that the\nDirector, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal is legally required to disclose, so long as the\nrecipient of such Confidential Information is informed of this Non-Disclosure Agreement and the confidential nature of such Confidential\nInformation. For the avoidance of doubt, there shall be no legal requirement applicable to the Director, Ancora Advisors, the Ancora Parties, or\nthe Ancora Principals to disclose any Confidential Information solely by virtue of the fact that, absent such disclosure, such parties would be\nprohibited from purchasing, selling, or engaging in derivative or other transactions with respect to securities of the Company.\nThe parties agree that irreparable damage would occur in the event any of the provisions of this Non-Disclosure Agreement were not\nperformed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly,\nthe parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Non- Disclosure Agreement and to enforce\nspecifically the terms and provisions of this Non-Disclosure Agreement in the Court of Chancery or other federal or state courts of the State of\nDelaware (the “Delaware Courts”), in addition to any other remedies at law or in equity, and each party agrees it will not take any action, directly\nor indirectly, in opposition to the party seeking relief on the grounds that any other remedy or relief is available at law or in equity. Each of the\nparties hereto agrees to waive any bonding requirement under any applicable law, in the case any other party seeks to enforce the terms by way\nof equitable relief. In the event of litigation relating to this Non-Disclosure Agreement, if a court of competent jurisdiction determines that this\nNon-Disclosure Agreement has been breached, the breaching party will reimburse the non-breaching party for its reasonable and documented\nout-of-pocket costs and expenses (including legal fees and expenses) incurred in connection with all such litigation (including any appeal relating\nthereto). Furthermore, each of the parties hereto irrevocably (a)\nA-3\nconsents to submit itself to the personal jurisdiction of the Delaware Courts in the event any dispute arises out of this Non-Disclosure Agreement,\n(b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from the Delaware Courts,\nagrees that it shall not bring any action relating to this Non-Disclosure Agreement in any court other than the Delaware Courts, (d) waives the\nright to trial by jury, and consents to service of process by the United States Postal Service or reputable overnight mail delivery service, in each\ncase, signature requested, to the address set forth in Section 14 of the Settlement Agreement or as otherwise provided by applicable law. THIS\nNON-DISCLOSURE AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITH RESPECT TO VALIDITY,\nINTERPRETATION, EFFECT AND ENFORCEMENT, BY THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO\nTHE CHOICE OF LAW PRINCIPLES THEREOF THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANY\nOTHER JURISDICTION.\nThis Non-Disclosure Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by either party\nin exercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any\nright hereunder.\nThe provisions of this Non-Disclosure Agreement relating to confidentiality shall terminate two (2) years after the Director (or any\nReplacement) ceases to be a director of the Company. The invalidity or unenforceability of any provision of this Non-Disclosure Agreement shall\nnot affect the validity or enforceability of any other provision hereof.\nAll Confidential Information shall remain the property of the Company and none of the Directors, Ancora Advisors, the Ancora Parties,\nany Director Representative or any Ancora Principal shall by virtue of any disclosure of or use of any Confidential Information acquire any\nrights with respect thereto, all of which rights (including all intellectual property rights) shall remain exclusively with the Company. At any time\nafter the date on which the Director (or any Replacement) is no longer a director of the Company, upon the request of the Company for any\nreason, the Director and the Ancora Principals will, and will cause Ancora Advisors, the Ancora Parties, and any Director Representative to,\npromptly return to the Company or destroy all hard copies of the Confidential Information and use reasonable efforts to permanently erase or\ndelete all electronic copies of the Confidential Information in the possession or control of the Director, Ancora Advisors, the Ancora Parties, any\nDirector Representative or any Ancora Principal. Notwithstanding anything to the contrary contained in this paragraph, the Director, the Ancora\nPrincipals, Ancora Advisors, the Ancora Parties and any Director Representative shall be permitted to retain such Confidential Information as is\nnecessary to enable them to comply with any applicable document retention requirements under applicable law or regulation and to retain any\ncomputer records and computer files containing any Confidential Information if required pursuant to their respective current automatic archiving\nand backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as the case may be.\nUnless and until any Replacement executes a joinder to this Non-Disclosure Agreement and agrees to be bound by the terms hereof\napplicable to the Director, the Ancora Principals shall not be permitted to discuss Confidential Information with, or obtain Confidential\nInformation from, such substitute director.\nA-4\nAcceptance of the above terms shall be indicated by having this Non-Disclosure Agreement countersigned by the Director, the Ancora Principal, Ancora Advisors and the Ancora Parties. Sincerely,\nIN WITNESS WHEREOQF, the Parties hereto have each executed this Agreement on the date set forth below. Dated: October 2, 2017\nPOTBELLY CORPORATION\nBy: /s/ Pete Bassi\nName: Pete Bassi\nTitle: Chairman of the Board\nANCORA ADVISORS, LLC\nBy: /s/ Fred DiSanto\nName: Fred DiSanto\nTitle: Chairman & CEO\n/s/ Frederick DiSanto\nFrederick DiSanto\n/s/ James Chadwick\nJames Chadwick\n/s/ Brian Hopkins\nBrian Hopkins\n/s/ Joseph Boehm\nJoseph Boehm	Exhibit A\nNon-Disclosure Agreement\nOctober 2, 2017\nReference is made to the Settlement Agreement, dated October 2, 2017 (the "Settlement Agreement"), by and among the Potbelly\nCorporation (the "Company"), the Ancora Parties and Joseph Boehm, as representative of the Ancora Parties (the "Director"). Capitalized terms\nused but not defined herein shall have the meanings ascribed to them in the Settlement Agreement, and the rules of interpretation set forth in the\nSettlement Agreement shall apply to this Non-Disclosure Agreement mutatis mutandis.\nThe Director may be provided certain information and data in connection with his serving as a director of the Company that the Company\nwishes to keep confidential, including information (whether furnished in writing or electronic format or orally) regarding the Company's\ngovernance, board of directors, management, plans, strategies, business, finances or operations and information that the Company has obtained\nfrom third parties and with respect to which the Company is obligated to maintain confidentiality (collectively, "Confidential Information").\nExcept as provided in this Non-Disclosure Agreement, the Director will not disclose any Confidential Information in any manner whatsoever or\nuse any Confidential Information other than in connection with serving as a director of the Company without, in each instance, securing\nthe\nprior\nwritten consent of the Company (acting through a resolution of a majority of the Company's directors).\nExcept as set forth in this paragraph, this Non-Disclosure Agreement shall not prevent the Director from privately disclosing Confidential\nInformation to (i) officers, directors, accountants and counsel for the Company, (ii) the Director's legal counsel or legal counsel to the Ancora\nParties (each a "Director Representative" and collectively, the "Director Representatives") who needs to know such information for the sole\npurpose of advising the Director on his actions as a director of the Company or advising Ancora Advisors, LLC ("Ancora Advisors") and\nthe\nAncora Parties (or the Ancora Affiliates) on its (or their) investment(s) in the Company or (iii) Frederick DiSanto, James Chadwick and Brian\nHopkins, each an associate of Ancora Advisors (each an "Ancora Principal" and, collectively, the "Ancora Principals"). Notwithstanding\nthe\nforegoing,\nit\nis\nunderstood\nand\nagreed\nthat\nthe\nDirector\nwill\nnot\ndisclose\nany\ninformation\nthat\nthe\nDirector\nlearns\nor\nobtains\nin\nhis\ncapacity\nas\na\ndirector of the Company to any Director Representative or any Ancora Principal to the extent such disclosure would be reasonably likely to\nconstitute a waiver of the attorney-client privilege between the Company and its counsel or the Company's attorney work product privilege. Any\nDirector Representative shall only be provided Confidential Information to the extent that such Director Representative is informed of the\nconfidential nature of the Confidential Information and agrees or is otherwise obligated to keep such information confidential and to restrict the\nuse of such confidential information in accordance with the terms of this Non-Disclosure Agreement. The Ancora Principals agree to keep\nconfidential the Confidential Information and to restrict the use of such Confidential Information in accordance with the terms of this\nNon-Disclosure Agreement, to be bound by this Non-Disclosure Agreement on the same terms as the Director by countersigning this\nA-1\nNon-Disclosure Agreement and not to use any Confidential Information in a manner that may be detrimental to the Company or its subsidiaries.\nThe Director, Ancora Advisors and the Ancora Parties shall be responsible for any breach of this Agreement by the Director, any Director\nRepresentatives, Ancora Advisors, the Ancora Parties or Ancora Principals.\nThe term "Confidential Information" shall not include information that (a) is at the time of disclosure or thereafter becomes generally\navailable to the public other than as a result of a disclosure by the Director, Ancora Advisors, the Ancora Parties, a Director Representative or\nan\nAncora Principal in violation of the terms of this Non-Disclosure Agreement; (b) was, prior to disclosure by the Company, already in the\npossession of the Director, a Director Representative, Ancora Advisors, the Ancora Parties or an Ancora Principal; provided that the source of\nsuch information was, to such person's knowledge, not bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Company; (c) becomes available to the Director, a Director Representative, Ancora Advisors, the Ancora\nParties or an Ancora Principal on a non-confidential basis from a source other than the Company, an affiliate of the Company or an agent,\nrepresentative, attorney, advisor, director, officer or employee of the Company (collectively, the "Company Representatives") that is, to such\nperson's knowledge, not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the\nCompany, and is not, to such person's knowledge, under an obligation to the Company not to transmit the information to such person; or (d)\nwas\nindependently developed by the Director, a Director Representative, Ancora Advisors, the Ancora Parties or an Ancora Principal without\nreference to or use of the Confidential Information.\nThe Director is aware, and will advise any Director Representative or an Ancora Principal who is informed of the matters that are the\nsubject of this Non-Disclosure Agreement, that the Confidential Information may constitute material, non-public information and of the\nrestrictions imposed by the United States securities laws on the purchase or sale of securities by any person who is aware of material, non-public\ninformation and on the communication of such information to any other person who may purchase or sell such securities on the basis of such\ninformation. The Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal to whom the Director\ntransmits Confidential Information under this Non-Disclosure Agreement will comply with all applicable federal and state securities laws in\nconnection with the purchase or sale, directly or indirectly, of securities of the Company or any other entity of which the Director is provided\nmaterial non-public information in his capacity as a director of the Company for as long as the Director, Ancora Advisors, the Ancora Parties\nany\nDirector Representative or any Ancora Principal are in possession of material non-public information about the Company.\nThe\nDirector\nand\nthe\nCompany acknowledge that none of the provisions hereto shall in any way limit Ancora Advisors', the Ancora Parties' or the Ancora Principals'\nactivities in the ordinary course of business if such activities will not violate applicable securities laws or the obligations set forth in this\nNon-Disclosure Agreement.\nEach of the Director, any Ancora Principal and any Director Representative to whom the Director transmits Confidential Information under\nthis Non-Disclosure Agreement acknowledges, or shall be deemed to acknowledge, that none of the Company, any affiliate of the Company or\nany Company Representative makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation. None of the\nA-2\nCompany, any affiliate of the Company or any Company Representative shall have any liability to the Director, Ancora Advisors, the Ancora\nParties, any Director Representative or any Ancora Principal hereunder relating to or resulting from the use of the Confidential Information by\nthe Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal or any errors in or omissions from\nthe\nConfidential Information.\nIn the event that the Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal is requested in any\nproceeding or governmental inquiry to disclose any Confidential Information, the Director will give the Company prompt written notice, to the\nextent not legally prohibited, of such request so that the Company may seek an appropriate protective order (at the Company's sole expense) or\nwaive compliance with the applicable provisions of this Non-Disclosure Agreement. If the Company seeks a protective order, the Director,\nAncora Advisors, the Ancora Parties, and the Ancora Principals agree to, and shall cause any Director Representative to, provide such\ncooperation as the Company shall reasonably request and in no event will they oppose action by the Company to obtain a protective order\nor\nother relief to prevent the disclosure of Confidential Information or to obtain reliable assurance that confidential treatment will be afforded to\nthe\nConfidential Information. If in the absence of a protective order, the Director, Ancora Advisors, the Ancora Parties, any Director Representative\nor any Ancora Principal, based upon the advice of counsel, is legally required to disclose Confidential Information, such person or entity may\ndisclose without liability under this Non-Disclosure Agreement such portion of the Confidential Information that counsel advises that the\nDirector, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal is legally required to disclose, so long as\nthe\nrecipient of such Confidential Information is informed of this Non-Disclosure Agreement and the confidential nature of such Confidential\nInformation. For the avoidance of doubt, there shall be no legal requirement applicable to the Director, Ancora Advisors, the Ancora Parties,\nor\nthe Ancora Principals to disclose any Confidential Information solely by virtue of the fact that, absent such disclosure, such parties would\nbe\nprohibited from purchasing, selling, or engaging in derivative or other transactions with respect to securities of the Company.\nThe parties agree that irreparable damage would occur in the event any of the provisions of this Non-Disclosure Agreement were not\nperformed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly,\nthe parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Non- Disclosure Agreement and to enforce\nspecifically the terms and provisions of this Non-Disclosure Agreement in the Court of Chancery or other federal or state courts of the State of\nDelaware (the "Delaware Courts"), in addition to any other remedies at law or in equity, and each party agrees it will not take\nany\naction,\ndirectly\nor indirectly, in opposition to the party seeking relief on the grounds that any other remedy or relief is available at law or in equity. Each of\nthe\nparties hereto agrees to waive any bonding requirement under any applicable law, in the case any other party seeks to enforce the terms by way\nof equitable relief. In the event of litigation relating to this Non-Disclosure Agreement, if a court of competent jurisdiction determines that this\nNon-Disclosure Agreement has been breached, the breaching party will reimburse the non-breaching party for its reasonable and documented\nout-of-pocket costs and expenses (including legal fees and expenses) incurred in connection with all such litigation (including any appeal relating\nthereto). Furthermore, each of the parties hereto irrevocably (a)\nA-3\nconsents to submit itself to the personal jurisdiction of the Delaware Courts in the event any dispute arises out of this Non-Disclosure Agreement,\n(b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from the Delaware Courts,\nagrees that it shall not bring any action relating to this Non-Disclosure Agreement in any court other than the Delaware Courts, (d) waives the\nright to trial by jury, and consents to service of process by the United States Postal Service or reputable overnight mail delivery service, in each\ncase, signature requested, to the address set forth in Section 14 of the Settlement Agreement or as otherwise provided by applicable law. THIS\nNON-DISCLOSURE AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITH RESPECT TO VALIDITY,\nINTERPRETATION, EFFECT AND ENFORCEMENT, BY THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO\nTHE CHOICE OF LAW PRINCIPLES THEREOF THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANY\nOTHER JURISDICTION.\nThis Non-Disclosure Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by either party\nin\nexercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any\nright hereunder.\nThe provisions of this Non-Disclosure Agreement relating to confidentiality shall terminate two (2) years after the Director (or any\nReplacement) ceases to be a director of the Company. The invalidity or unenforceability of any provision of this Non-Disclosure Agreement shall\nnot affect the validity or enforceability of any other provision hereof.\nAll Confidential Information shall remain the property of the Company and none of the Directors, Ancora Advisors, the Ancora Parties,\nany Director Representative or any Ancora Principal shall by virtue of any disclosure of or use of any Confidential Information acquire any\nrights with respect thereto, all of which rights (including all intellectual property rights) shall remain exclusively with the Company. At any time\nafter the date on which the Director (or any Replacement) is no longer a director of the Company, upon the request of the Company for\nany\nreason, the Director and the Ancora Principals will, and will cause Ancora Advisors, the Ancora Parties, and any Director Representative to,\npromptly return to the Company or destroy all hard copies of the Confidential Information and use reasonable efforts to permanently erase or\ndelete all electronic copies of the Confidential Information in the possession or control of the Director, Ancora Advisors, the Ancora Parties, any\nDirector\nRepresentative or any Ancora Principal. Notwithstanding anything to the contrary contained in this paragraph, the Director, the Ancora\nPrincipals, Ancora Advisors, the Ancora Parties and any Director Representative shall be permitted to retain such Confidential Information as\nis\nnecessary to enable them to comply with any applicable document retention requirements under applicable law or regulation and to retain any\ncomputer records and computer files containing any Confidential Information if required pursuant to their respective current automatic archiving\nand backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as the case may be.\nUnless and until any Replacement executes a joinder to this Non-Disclosure Agreement and agrees to be bound by the terms hereof\napplicable to the Director, the Ancora Principals shall not be permitted to discuss Confidential Information with, or obtain Confidential\nInformation from, such substitute director.\nA-4\nAcceptance of the above terms shall be indicated by having this Non-Disclosure Agreement countersigned by the Director, the Ancora\nPrincipal, Ancora Advisors and the Ancora Parties.\nSincerely,\nIN WITNESS WHEREOF, the Parties hereto have each executed this Agreement on the date set forth below.\nDated: October 2, 2017\nPOTBELLY CORPORATION\nBy:\n/s/ Pete Bassi\nName: Pete Bassi\nTitle:\nChairman of the Board\nANCORA ADVISORS, LLC\nBy:\n/s/ Fred DiSanto\nName: Fred DiSanto\nTitle:\nChairman & CEO\n/s/ Frederick DiSanto\nFrederick DiSanto\n/s/ James Chadwick\nJames Chadwick\n/s/ Brian Hopkins\nBrian Hopkins\n/s/ Joseph Boehm\nJoseph Boehm\nA-5	Exhibit A\nNon-Disclosure Agreement\nOctober 2, 2017\nReference is made to the Settlement Agreement, dated October 2, 2017 (the “Settlement Agreement”), by and among the Potbelly\nCorporation (the “Company”), the Ancora Parties and Joseph Boehm, as representative of the Ancora Parties (the “Director”). Capitalized terms\nused but not defined herein shall have the meanings ascribed to them in the Settlement Agreement, and the rules of interpretation set forth in the\nSettlement Agreement shall apply to this Non-Disclosure Agreement mutatis mutandis.\nThe Director may be provided certain information and data in connection with his serving as a director of the Company that the Company\nwishes to keep confidential, including information (whether furnished in writing or electronic format or orally) regarding the Company’s\ngovernance, board of directors, management, plans, strategies, business, finances or operations and information that the Company has obtained\nfrom third parties and with respect to which the Company is obligated to maintain confidentiality (collectively, “Confidential Information”).\nExcept as provided in this Non-Disclosure Agreement, the Director will not disclose any Confidential Information in any manner whatsoever or\nuse any Confidential Information other than in connection with serving as a director of the Company without, in each instance, securing the prior\nwritten consent of the Company (acting through a resolution of a majority of the Company’s directors).\nExcept as set forth in this paragraph, this Non-Disclosure Agreement shall not prevent the Director from privately disclosing Confidential\nInformation to (i) officers, directors, accountants and counsel for the Company, (ii) the Director’s legal counsel or legal counsel to the Ancora\nParties (each a “Director Representative” and collectively, the “Director Representatives”) who needs to know such information for the sole\npurpose of advising the Director on his actions as a director of the Company or advising Ancora Advisors, LLC (“Ancora Advisors”) and the\nAncora Parties (or the Ancora Affiliates) on its (or their) investment(s) in the Company or (iii) Frederick DiSanto, James Chadwick and Brian\nHopkins, each an associate of Ancora Advisors (each an “Ancora Principal” and, collectively, the “Ancora Principals”). Notwithstanding the\nforegoing, it is understood and agreed that the Director will not disclose any information that the Director learns or obtains in his capacity as a\ndirector of the Company to any Director Representative or any Ancora Principal to the extent such disclosure would be reasonably likely to\nconstitute a waiver of the attorney-client privilege between the Company and its counsel or the Company’s attorney work product privilege. Any\nDirector Representative shall only be provided Confidential Information to the extent that such Director Representative is informed of the\nconfidential nature of the Confidential Information and agrees or is otherwise obligated to keep such information confidential and to restrict the\nuse of such confidential information in accordance with the terms of this Non-Disclosure Agreement. The Ancora Principals agree to keep\nconfidential the Confidential Information and to restrict the use of such Confidential Information in accordance with the terms of this\nNon-Disclosure Agreement, to be bound by this Non-Disclosure Agreement on the same terms as the Director by countersigning this\nA-1\nNon-Disclosure Agreement and not to use any Confidential Information in a manner that may be detrimental to the Company or its subsidiaries.\nThe Director, Ancora Advisors and the Ancora Parties shall be responsible for any breach of this Agreement by the Director, any Director\nRepresentatives, Ancora Advisors, the Ancora Parties or Ancora Principals.\nThe term “Confidential Information” shall not include information that (a) is at the time of disclosure or thereafter becomes generally\navailable to the public other than as a result of a disclosure by the Director, Ancora Advisors, the Ancora Parties, a Director Representative or an\nAncora Principal in violation of the terms of this Non-Disclosure Agreement; (b) was, prior to disclosure by the Company, already in the\npossession of the Director, a Director Representative, Ancora Advisors, the Ancora Parties or an Ancora Principal; provided that the source of\nsuch information was, to such person’s knowledge, not bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Company; (c) becomes available to the Director, a Director Representative, Ancora Advisors, the Ancora\nParties or an Ancora Principal on a non-confidential basis from a source other than the Company, an affiliate of the Company or an agent,\nrepresentative, attorney, advisor, director, officer or employee of the Company (collectively, the “Company Representatives”) that is, to such\nperson’s knowledge, not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the\nCompany, and is not, to such person’s knowledge, under an obligation to the Company not to transmit the information to such person; or (d) was\nindependently developed by the Director, a Director Representative, Ancora Advisors, the Ancora Parties or an Ancora Principal without\nreference to or use of the Confidential Information.\nThe Director is aware, and will advise any Director Representative or an Ancora Principal who is informed of the matters that are the\nsubject of this Non-Disclosure Agreement, that the Confidential Information may constitute material, non-public information and of the\nrestrictions imposed by the United States securities laws on the purchase or sale of securities by any person who is aware of material, non-public\ninformation and on the communication of such information to any other person who may purchase or sell such securities on the basis of such\ninformation. The Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal to whom the Director\ntransmits Confidential Information under this Non-Disclosure Agreement will comply with all applicable federal and state securities laws in\nconnection with the purchase or sale, directly or indirectly, of securities of the Company or any other entity of which the Director is provided\nmaterial non-public information in his capacity as a director of the Company for as long as the Director, Ancora Advisors, the Ancora Parties any\nDirector Representative or any Ancora Principal are in possession of material non-public information about the Company. The Director and the\nCompany acknowledge that none of the provisions hereto shall in any way limit Ancora Advisors’, the Ancora Parties’ or the Ancora Principals’\nactivities in the ordinary course of business if such activities will not violate applicable securities laws or the obligations set forth in this\nNon-Disclosure Agreement.\nEach of the Director, any Ancora Principal and any Director Representative to whom the Director transmits Confidential Information under\nthis Non-Disclosure Agreement acknowledges, or shall be deemed to acknowledge, that none of the Company, any affiliate of the Company or\nany Company Representative makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation. None of the\nA-2\nCompany, any affiliate of the Company or any Company Representative shall have any liability to the Director, Ancora Advisors, the Ancora\nParties, any Director Representative or any Ancora Principal hereunder relating to or resulting from the use of the Confidential Information by\nthe Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal or any errors in or omissions from the\nConfidential Information.\nIn the event that the Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal is requested in any\nproceeding or governmental inquiry to disclose any Confidential Information, the Director will give the Company prompt written notice, to the\nextent not legally prohibited, of such request so that the Company may seek an appropriate protective order (at the Company’s sole expense) or\nwaive compliance with the applicable provisions of this Non-Disclosure Agreement. If the Company seeks a protective order, the Director,\nAncora Advisors, the Ancora Parties, and the Ancora Principals agree to, and shall cause any Director Representative to, provide such\ncooperation as the Company shall reasonably request and in no event will they oppose action by the Company to obtain a protective order or\nother relief to prevent the disclosure of Confidential Information or to obtain reliable assurance that confidential treatment will be afforded to the\nConfidential Information. If in the absence of a protective order, the Director, Ancora Advisors, the Ancora Parties, any Director Representative\nor any Ancora Principal, based upon the advice of counsel, is legally required to disclose Confidential Information, such person or entity may\ndisclose without liability under this Non-Disclosure Agreement such portion of the Confidential Information that counsel advises that the\nDirector, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal is legally required to disclose, so long as the\nrecipient of such Confidential Information is informed of this Non-Disclosure Agreement and the confidential nature of such Confidential\nInformation. For the avoidance of doubt, there shall be no legal requirement applicable to the Director, Ancora Advisors, the Ancora Parties, or\nthe Ancora Principals to disclose any Confidential Information solely by virtue of the fact that, absent such disclosure, such parties would be\nprohibited from purchasing, selling, or engaging in derivative or other transactions with respect to securities of the Company.\nThe parties agree that irreparable damage would occur in the event any of the provisions of this Non-Disclosure Agreement were not\nperformed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly,\nthe parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Non- Disclosure Agreement and to enforce\nspecifically the terms and provisions of this Non-Disclosure Agreement in the Court of Chancery or other federal or state courts of the State of\nDelaware (the “Delaware Courts”), in addition to any other remedies at law or in equity, and each party agrees it will not take any action, directly\nor indirectly, in opposition to the party seeking relief on the grounds that any other remedy or relief is available at law or in equity. Each of the\nparties hereto agrees to waive any bonding requirement under any applicable law, in the case any other party seeks to enforce the terms by way\nof equitable relief. In the event of litigation relating to this Non-Disclosure Agreement, if a court of competent jurisdiction determines that this\nNon-Disclosure Agreement has been breached, the breaching party will reimburse the non-breaching party for its reasonable and documented\nout-of-pocket costs and expenses (including legal fees and expenses) incurred in connection with all such litigation (including any appeal relating\nthereto). Furthermore, each of the parties hereto irrevocably (a)\nA-3\nconsents to submit itself to the personal jurisdiction of the Delaware Courts in the event any dispute arises out of this Non-Disclosure Agreement,\n(b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from the Delaware Courts,\nagrees that it shall not bring any action relating to this Non-Disclosure Agreement in any court other than the Delaware Courts, (d) waives the\nright to trial by jury, and consents to service of process by the United States Postal Service or reputable overnight mail delivery service, in each\ncase, signature requested, to the address set forth in Section 14 of the Settlement Agreement or as otherwise provided by applicable law. THIS\nNON-DISCLOSURE AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITH RESPECT TO VALIDITY,\nINTERPRETATION, EFFECT AND ENFORCEMENT, BY THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO\nTHE CHOICE OF LAW PRINCIPLES THEREOF THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANY\nOTHER JURISDICTION.\nThis Non-Disclosure Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by either party\nin exercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any\nright hereunder.\nThe provisions of this Non-Disclosure Agreement relating to confidentiality shall terminate two (2) years after the Director (or any\nReplacement) ceases to be a director of the Company. The invalidity or unenforceability of any provision of this Non-Disclosure Agreement shall\nnot affect the validity or enforceability of any other provision hereof.\nAll Confidential Information shall remain the property of the Company and none of the Directors, Ancora Advisors, the Ancora Parties,\nany Director Representative or any Ancora Principal shall by virtue of any disclosure of or use of any Confidential Information acquire any\nrights with respect thereto, all of which rights (including all intellectual property rights) shall remain exclusively with the Company. At any time\nafter the date on which the Director (or any Replacement) is no longer a director of the Company, upon the request of the Company for any\nreason, the Director and the Ancora Principals will, and will cause Ancora Advisors, the Ancora Parties, and any Director Representative to,\npromptly return to the Company or destroy all hard copies of the Confidential Information and use reasonable efforts to permanently erase or\ndelete all electronic copies of the Confidential Information in the possession or control of the Director, Ancora Advisors, the Ancora Parties, any\nDirector Representative or any Ancora Principal. Notwithstanding anything to the contrary contained in this paragraph, the Director, the Ancora\nPrincipals, Ancora Advisors, the Ancora Parties and any Director Representative shall be permitted to retain such Confidential Information as is\nnecessary to enable them to comply with any applicable document retention requirements under applicable law or regulation and to retain any\ncomputer records and computer files containing any Confidential Information if required pursuant to their respective current automatic archiving\nand backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as the case may be.\nUnless and until any Replacement executes a joinder to this Non-Disclosure Agreement and agrees to be bound by the terms hereof\napplicable to the Director, the Ancora Principals shall not be permitted to discuss Confidential Information with, or obtain Confidential\nInformation from, such substitute director.\nA-4\nAcceptance of the above terms shall be indicated by having this Non-Disclosure Agreement countersigned by the Director, the Ancora\nPrincipal, Ancora Advisors and the Ancora Parties.\nSincerely,\nIN WITNESS WHEREOF, the Parties hereto have each executed this Agreement on the date set forth below.\nDated: October 2, 2017\nPOTBELLY CORPORATION\nBy:\n/s/ Pete Bassi\nName: Pete Bassi\nTitle:\nChairman of the Board\nANCORA ADVISORS, LLC\nBy:\n/s/ Fred DiSanto\nName: Fred DiSanto\nTitle:\nChairman & CEO\n/s/ Frederick DiSanto\nFrederick DiSanto\n/s/ James Chadwick\nJames Chadwick\n/s/ Brian Hopkins\nBrian Hopkins\n/s/ Joseph Boehm\nJoseph Boehm\nA-5
+ddbf109793cb86d7565126994e6d02cd.pdf	effective_date jurisdiction party term	By: ___________________________________\nName: _________________________________\nEXHIBIT 1\nNON-DISCLOSURE AGREEMENT\nI, __________________, am aware that Ideal Restaurant Group, Inc. (CLIENT) and my employer, The Schooner Group,\nLLC (COMPANY) have entered into a Support Services AGREEMENT (AGREEMENT) and I fully understand that it\nimposes certain obligations on COMPANY, some of which are specifically set forth below. I further understand that as\npart of its obligations under the AGREEMENT, COMPANY is required to obtain this written agreement from certain\nemployees, including myself, to further ensure understanding and compliance with these obligations.\nIn consideration for my future assignment and/or responsibilities in connection with COMPANY’s performance under\nthe AGREEMENT, I hereby acknowledge, represent and confirm to COMPANY and CLIENT as follows:\na) I have read the provisions of the Non-Disclosure Agreement, understand each of them, agree to them, and\nknow of no agreements restrictions or obligations that prevent me from complying with them;\nb) I will receive and maintain all information, perform all services and conduct myself, in all respects during the\nterm of the AGREEMENT and for the requisite period thereafter, in a manner consistent with these obligations;\nc) I agree not to directly or indirectly engage in, or assist others to engage in, any activity or conduct that violates\nthe provisions of this Non-Disclosure Agreement.\nConfidential Information: COMPANY agrees to regard and preserve as confidential all information related to the\nbusiness and activities of CLIENT, their patients, suppliers and other entities with whom CLIENT does business, that\nmay be obtained by COMPANY from any source or may be developed as a result of this AGREEMENT. COMPANY\nagrees to hold such information in trust and confidence for CLIENT and not to disclose such information to any person,\nfirm or enterprise, or use any such information for its own benefit or the benefit of any other party, unless authorized by\nCLIENT in writing.\nI understand that if I threaten to or actually breach or fail to observe any of the obligations set forth in this Non-\nDisclosure Agreement, CLIENT and COMPANY will be subject to irreparable harm, which will not be adequately\nsatisfied by damages. I therefore agree that COMPANY and CLIENT shall be entitled to injunctive relief and/or any\nother remedies permitted, to ensure and enforce my compliance with these obligations in the unlikely event I do not\ncomply with them; provided however, that no specification herein of any particular legal or equitable remedy shall be\nconstrued as a waiver, prohibition or limitation of any legal or equitable remedies.\nDate: ________________________\nTitle: ________________________\nWitness: ____________________________\n5	EXHIBIT 1\nNON-DISCLOSURE AGREEMENT\nL , am aware that Ideal Restaurant Group, Inc. (CLIENT) and my employer, The Schooner Group,\nLLC (COMPANY) have entered into a Support Services AGREEMENT (AGREEMENT) and I fully understand that it\nimposes certain obligations on COMPANY, some of which are specifically set forth below. I further understand that as\npart of its obligations under the AGREEMENT, COMPANY is required to obtain this written agreement from certain\nemployees, including myself, to further ensure understanding and compliance with these obligations.\nIn consideration for my future assignment and/or responsibilities in connection with COMPANY ’s performance under\nthe AGREEMENT, I hereby acknowledge, represent and confirm to COMPANY and CLIENT as follows:\na) I have read the provisions of the Non-Disclosure Agreement, understand each of them, agree to them, and\nknow of no agreements restrictions or obligations that prevent me from complying with them;\nb) I will receive and maintain all information, perform all services and conduct myself, in all respects during the\nterm of the AGREEMENT and for the requisite period thereafter, in a manner consistent with these obligations;\nc) I agree not to directly or indirectly engage in, or assist others to engage in, any activity or conduct that violates\nthe provisions of this Non-Disclosure Agreement.\nConfidential Information: COMPANY agrees to regard and preserve as confidential all information related to the\nbusiness and activities of CLIENT, their patients, suppliers and other entities with whom CLIENT does business, that\nmay be obtained by COMPANY from any source or may be developed as a result of this AGREEMENT. COMPANY\nagrees to hold such information in trust and confidence for CLIENT and not to disclose such information to any person,\nfirm or enterprise, or use any such information for its own benefit or the benefit of any other party, unless authorized by\nCLIENT in writing.\nI understand that if I threaten to or actually breach or fail to observe any of the obligations set forth in this Non-\nDisclosure Agreement, CLIENT and COMPANY will be subject to irreparable harm, which will not be adequately\nsatisfied by damages. I therefore agree that COMPANY and CLIENT shall be entitled to injunctive relief and/or any\nother remedies permitted, to ensure and enforce my compliance with these obligations in the unlikely event I do not\ncomply with them; provided however, that no specification herein of any particular legal or equitable remedy shall be\nconstrued as a waiver, prohibition or limitation of any legal or equitable remedies.\n \n \n \n \nBy: Date:\nName: Title:\nWitness:\n	EXHIBIT 1\nNON-DISCLOSURE AGREEMENT\nI,\nam aware that Ideal Restaurant Group, Inc. (CLIENT) and my employer, The Schooner Group,\nLLC (COMPANY) have entered into a Support Services AGREEMENT (AGREEMENT) and I fully understand that it\nimposes certain obligations on COMPANY, some of which are specifically set forth below. I further understand that as\npart of its obligations under the AGREEMENT, COMPANY is required to obtain this written agreement from certain\nemployees, including myself, to further ensure understanding and compliance with these obligations.\nIn consideration for my future assignment and/or responsibilities in connection with COMPANY'S performance under\nthe AGREEMENT, I hereby acknowledge, represent and confirm to COMPANY and CLIENT as follows:\na) I have read the provisions of the Non-Disclosure Agreement, understand each of them, agree to them, and\nknow of no agreements restrictions or obligations that prevent me from complying with them;\nb) I will receive and maintain all information, perform all services and conduct myself, in all respects during the\nterm of the AGREEMENT and for the requisite period thereafter, in a manner consistent with these obligations;\nc) I agree not to directly or indirectly engage in, or assist others to engage in, any activity or conduct that violates\nthe provisions of this Non-Disclosure Agreement.\nConfidential Information: COMPANY agrees to regard and preserve as confidential all information related to the\nbusiness and activities of CLIENT, their patients, suppliers and other entities with whom CLIENT does business, that\nmay be obtained by COMPANY from any source or may be developed as a result of this AGREEMENT. COMPANY\nagrees to hold such information in trust and confidence for CLIENT and not to disclose such information to any person,\nfirm or enterprise, or use any such information for its own benefit or the benefit of any other party, unless authorized by\nCLIENT in writing.\nI understand that if I threaten to or actually breach or fail to observe any of the obligations set forth in this Non-\nDisclosure Agreement, CLIENT and COMPANY will be subject to irreparable harm, which will not be adequately\nsatisfied by damages. I therefore agree that COMPANY and CLIENT shall be entitled to injunctive relief and/or any\nother remedies permitted, to ensure and enforce my compliance with these obligations in the unlikely event I do not\ncomply with them; provided however, that no specification herein of any particular legal or equitable remedy shall be\nconstrued as a waiver, prohibition or limitation of any legal or equitable remedies.\nBy:\nDate:\nName:\nTitle:\nWitness:\n5	By: ___________________________________\nName: _________________________________\nEXHIBIT 1\nNON-DISCLOSURE AGREEMENT\nI, __________________, am aware that Ideal Restaurant Group, Inc. (CLIENT) and my employer, The Schooner Group,\nLLC (COMPANY) have entered into a Support Services AGREEMENT (AGREEMENT) and I fully understand that it\nimposes certain obligations on COMPANY, some of which are specifically set forth below. I further understand that as\npart of its obligations under the AGREEMENT, COMPANY is required to obtain this written agreement from certain\nemployees, including myself, to further ensure understanding and compliance with these obligations.\nIn consideration for my future assignment and/or responsibilities in connection with COMPANY’s performance under\nthe AGREEMENT, I hereby acknowledge, represent and confirm to COMPANY and CLIENT as follows:\na) I have read the provisions of the Non-Disclosure Agreement, understand each of them, agree to them, and\nknow of no agreements restrictions or obligations that prevent me from complying with them;\nb) I will receive and maintain all information, perform all services and conduct myself, in all respects during the\nterm of the AGREEMENT and for the requisite period thereafter, in a manner consistent with these obligations;\nc) I agree not to directly or indirectly engage in, or assist others to engage in, any activity or conduct that violates\nthe provisions of this Non-Disclosure Agreement.\nConfidential Information: COMPANY agrees to regard and preserve as confidential all information related to the\nbusiness and activities of CLIENT, their patients, suppliers and other entities with whom CLIENT does business, that\nmay be obtained by COMPANY from any source or may be developed as a result of this AGREEMENT. COMPANY\nagrees to hold such information in trust and confidence for CLIENT and not to disclose such information to any person,\nfirm or enterprise, or use any such information for its own benefit or the benefit of any other party, unless authorized by\nCLIENT in writing.\nI understand that if I threaten to or actually breach or fail to observe any of the obligations set forth in this Non-\nDisclosure Agreement, CLIENT and COMPANY will be subject to irreparable harm, which will not be adequately\nsatisfied by damages. I therefore agree that COMPANY and CLIENT shall be entitled to injunctive relief and/or any\nother remedies permitted, to ensure and enforce my compliance with these obligations in the unlikely event I do not\ncomply with them; provided however, that no specification herein of any particular legal or equitable remedy shall be\nconstrued as a waiver, prohibition or limitation of any legal or equitable remedies.\nDate: ________________________\nTitle: ________________________\nWitness: ____________________________\n5
+dffd3c1faf94dbdc6b3853fbb07afdd8.pdf	effective_date jurisdiction party term	NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (“Agreement”) is entered into as of March 29, 2011, by and between the undersigned and Newgistics, Inc. (the\n“Company”), with reference to the following:\nRECITALS\nWHEREAS, I have been elected to serve on the Company’s Board of Directors (the “Board”); and\nWHEREAS, in my capacity as a member of the Board, I will receive the Company’s confidential and Proprietary Information (as defined\nbelow) and, subject to the Board’s discretion and approval, the Company will grant me a present right to purchase shares of the Company’s common\nstock, in each case as further provided in the offer letter by and between me and the Company (the “Board Offer Letter”); and\nWHEREAS, this Agreement is necessary to protect and prevent any unauthorized, improper or unlawful disclosure of the Company’s\nProprietary Information.\nAGREEMENT\nNOW THEREFORE, in exchange for the consideration provided to me in connection with my membership on the Board, including but not\nlimited to the Company’s promise to provide me with immediate access to its Proprietary Information and, subject to the Board of Directors’\ndiscretion and approval, the promise to grant me a present right to purchase shares of the Company’s common stock, and for other valuable\nconsideration, the receipt and sufficiency of which is hereby acknowledged, I agree as follows:\n1. Recognition of Company’s Rights; Nondisclosure.\nAt all times that I am a member of the Board (hereinafter referred to as my “Membership”) and for two years thereafter, I will hold in\nstrictest confidence and will not disclose, use, lecture upon, or publish any of the Company’s confidential or Proprietary Information (defined\nbelow), except as such disclosure, use, or publication may be required in connection with my Membership, or unless the President or the Board\nexpressly authorizes such in writing. I hereby assign to the Company any rights I may have or acquire in such confidential or Proprietary\nInformation and recognize that all confidential and Proprietary Information shall be the sole property of the Company and its assigns and that\nthe Company and its assigns shall be the sole owner of all patent rights, copyrights, trade secret rights, and all other rights throughout the\nworld (collectively, “Proprietary Rights”) in connection therewith. I further recognize that any suggestions, comments or contributions I make\nat any meeting of the Board or in connection with my duties during the term of my Membership is the Company’s confidential and Proprietary\nInformation.\nThe term “Proprietary Information” shall mean trade secrets, confidential knowledge, data, or any other proprietary information of the\nCompany and each of its subsidiaries or affiliated companies. By way of illustration but not limitation, “Proprietary Information” includes\n(a) inventions, trade secrets, ideas, processes, formulas, data, lists, programs, other works of authorship, know-how, improvements,\ndiscoveries, developments, designs, and techniques relating to the business or proposed business of the Company and that were learned or\ndiscovered by me during the term of my Membership with the Company; (b) information regarding plans for research, development, new\nproducts and services, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs,\nsuppliers, customer lists and customers that were learned or discovered by me during my Membership; and (c) information regarding the skills\nand compensation of employees of the Company. Proprietary Information shall not include information (i) already in my possession and not\nsubject to confidentiality requirements at the time of disclosure, (ii) obtained by me from another source without the duty of confidentiality, or\n(iii) readily available or generally known to the general public or to persons in the industry.\n2. Third Party Information.\nI understand, in addition, that the Company may from time to time receive from third parties confidential or proprietary information (“Third\nParty Information”) subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited\npurposes. During the term of my Membership and thereafter, I will hold Third Party Information in the strictest confidence and will not disclose (to\nanyone other than Company personnel who need to know such information in connection with their work for the Company) or use, except in\nconnection with my Membership, Third Party Information unless expressly authorized in writing by an executive officer of the Company or the\nBoard.\n3. No Improper Use of Materials.\nI understand and agree that, in connection with my Membership, I shall not use or disclose the proprietary or confidential information or\ntrade secrets of any employer, former employer, company for which I served on the Board of Directors, company for which I served on the\nadvisory board, or any other person or entity. During my Membership, I will not bring onto the premises of the Company any unpublished\ndocuments or any property belonging to any employer, former employer or any other person or entity to whom I have an obligation of\nconfidentiality unless consented to in writing by that employer, former employer, person, or entity.\n4. No Conflicting Obligation.\nI represent that my performance of all the duties in connection with my Membership does not and will not breach any agreement between\nme and any other company, person or entity. I have not entered into, and I agree I will not enter into, any agreement either written or oral in\nconflict herewith.\n5. Legal and Equitable Remedies.\nBecause my services are personal and unique and because I may have access to and become acquainted with the confidential and\nProprietary Information of the Company, the Company shall have the right to enforce this Agreement and any of its provisions by injunction,\nspecific performance, or other equitable relief, without bond and without prejudice to any other rights and remedies that the Company may\nhave for a breach of this Agreement.\n6. Notices.\nAny notices required or permitted hereunder shall be given to the appropriate party at the party’s last known address. Such notice shall be\ndeemed given upon personal delivery to the last known address or if sent by certified or registered mail, three days after the date of mailing.\n7. General Provisions.\n7.1 Governing Law. This Agreement will be governed by and construed according to the laws of the State of Texas without regard to\nconflicts of law principles.\n7.2 Exclusive Forum. I hereby irrevocably agree that the exclusive forum for any suit, action, or other proceeding arising out of or in any\nway related to this Agreement shall be in the state or federal courts in Texas, and I agree to the exclusive personal jurisdiction and venue of\nany court in Travis County, Texas.\n7.3 Entire Agreement. This Agreement, together with the terms of the Board Offer Letter, set forth the entire agreement and\nunderstanding between the Company and myself relating to the subject matter hereof and supersedes and merges all prior discussions between\nus. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing\nsigned by the party to be charged. Any subsequent change or changes in my duties, or compensation will not affect the validity or scope of this\nAgreement. As used in this Agreement, the period of my Membership includes any time during which I may be retained by the Company as a\nconsultant.\n7.4 Severability. I acknowledge and agree that each agreement and covenant set forth herein constitutes a separate agreement\nindependently supported by good and adequate consideration and that each such agreement shall be severable from the other provisions of this\nAgreement and shall survive this Agreement.\n7.5 Survival. The provisions of this Agreement shall survive the termination of my Membership for any reason and the assignment of this\nAgreement by the Company to any successor in interest or other assignee.\n7.6 Waiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No\nwaiver by the Company of any right under this Agreement shall be construed as a waiver of any other right. The Company shall not be\nrequired to give notice to enforce strict adherence to all terms of this Agreement.\n7.7 Headings. The headings to each section or paragraph of this Agreement are provided for convenience of reference only and shall\nhave no legal effect in the interpretation of the terms hereof.\n7.8 Attorney’s Fees. In the event of litigation between me and the Company, the non-prevailing party (as determined at the time the court\nrenders final non-appealable judgment on the litigation as a whole) shall pay to the prevailing party, in addition to any other amounts awarded,\nall reasonable legal and other related costs and expenses, including for example but not limited to attorneys’ fees, expert witness fees, court\ncosts, costs of appeal, and all other reasonable out-of-pocket expenses incurred by the prevailing party in connection with such litigation.\n[Signature Page Follows]\nThis Agreement shall be effective as of the first day of my Membership on the Company’s Board of Directors.\nI UNDERSTAND THAT THIS AGREEMENT RESTRICTS MY RIGHT TO DISCLOSE OR USE THE COMPANY’S CONFIDENTIAL\nAND PROPRIETARY INFORMATION DURING OR SUBSEQUENT TO MY POSITION ON THE NEWGISTICS, INC. BOARD OF\nDIRECTORS.\n/s/ Stephen M. Mattessich\nStephen M. Mattessich\nACCEPTED AND AGREED TO:\nNEWGISTICS, INC.\nBy: /s/ William J. Razzouk\nWilliam J. Razzouk\nPresident and Chief Executive Officer	NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (“Agreement”) is entered into as of March 29, 2011, by and between the undersigned and Newgistics, Inc. (the\n“Company”), with reference to the following:\nRECITALS\nWHEREAS, I have been elected to serve on the Company’s Board of Directors (the “Board”); and\nWHEREAS, in my capacity as a member of the Board, I will receive the Company’s confidential and Proprietary Information (as defined\nbelow) and, subject to the Board’s discretion and approval, the Company will grant me a present right to purchase shares of the Company’s common\nstock, in each case as further provided in the offer letter by and between me and the Company (the “Board Offer Letter”); and\nWHEREAS, this Agreement is necessary to protect and prevent any unauthorized, improper or unlawful disclosure of the Company’s\nProprietary Information.\nAGREEMENT\nNOW THEREFORE, in exchange for the consideration provided to me in connection with my membership on the Board, including but not\nlimited to the Company’s promise to provide me with immediate access to its Proprietary Information and, subject to the Board of Directors’\ndiscretion and approval, the promise to grant me a present right to purchase shares of the Company’s common stock, and for other valuable\nconsideration, the receipt and sufficiency of which is hereby acknowledged, I agree as follows:\n1. Recognition of Company’s Rights; Nondisclosure.\nAt all times that I am a member of the Board (hereinafter referred to as my “Membership”) and for two years thereafter, I will hold in\nstrictest confidence and will not disclose, use, lecture upon, or publish any of the Company’s confidential or Proprietary Information (defined\nbelow), except as such disclosure, use, or publication may be required in connection with my Membership, or unless the President or the Board\nexpressly authorizes such in writing. I hereby assign to the Company any rights I may have or acquire in such confidential or Proprietary\nInformation and recognize that all confidential and Proprietary Information shall be the sole property of the Company and its assigns and that\nthe Company and its assigns shall be the sole owner of all patent rights, copyrights, trade secret rights, and all other rights throughout the\nworld (collectively, “Proprietary Rights”) in connection therewith. I further recognize that any suggestions, comments or contributions I make\nat any meeting of the Board or in connection with my duties during the term of my Membership is the Company’s confidential and Proprietary\nInformation.\nThe term “Proprietary Information” shall mean trade secrets, confidential knowledge, data, or any other proprietary information of the\nCompany and each of its subsidiaries or affiliated companies. By way of illustration but not limitation, “Proprietary Information” includes\n(a) inventions, trade secrets, ideas, processes, formulas, data, lists, programs, other works of authorship, know-how, improvements,\ndiscoveries, developments, designs, and techniques relating to the business or proposed business of the Company and that were learned or\ndiscovered by me during the term of my Membership with the Company; (b) information regarding plans for research, development, new\nproducts and services, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs,\nsuppliers, customer lists and customers that were learned or discovered by me during my Membership; and (c) information regarding the skills\nand compensation of employees of the Company. Proprietary Information shall not include information (i) already in my possession and not\nsubject to confidentiality requirements at the time of disclosure, (ii) obtained by me from another source without the duty of confidentiality, or\n(iii) readily available or generally known to the general public or to persons in the industry.\n2. Third Party Information.\nI understand, in addition, that the Company may from time to time receive from third parties confidential or proprietary information (“Third\nParty Information”) subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited\npurposes. During the term of my Membership and thereafter, I will hold Third Party Information in the strictest confidence and will not disclose (to\nanyone other than Company personnel who need to know such information in connection with their work for the Company) or use, except in\nconnection with my Membership, Third Party Information unless expressly authorized in writing by an executive officer of the Company or the\nBoard.\n3.  No Improper Use of Materials.\nI understand and agree that, in connection with my Membership, I shall not use or disclose the proprietary or confidential information or\ntrade secrets of any employer, former employer, company for which I served on the Board of Directors, company for which I served on the\nadvisory board, or any other person or entity. During my Membership, I will not bring onto the premises of the Company any unpublished\ndocuments or any property belonging to any employer, former employer or any other person or entity to whom I have an obligation of\nconfidentiality unless consented to in writing by that employer, former employer, person, or entity.\n4. No Conflicting Obligation.\nI represent that my performance of all the duties in connection with my Membership does not and will not breach any agreement between\nme and any other company, person or entity. I have not entered into, and I agree I will not enter into, any agreement either written or oral in\nconflict herewith.\n5. Legal and Equitable Remedies.\nBecause my services are personal and unique and because I may have access to and become acquainted with the confidential and\nProprietary Information of the Company, the Company shall have the right to enforce this Agreement and any of its provisions by injunction,\nspecific performance, or other equitable relief, without bond and without prejudice to any other rights and remedies that the Company may\nhave for a breach of this Agreement.\n6. Notices.\nAny notices required or permitted hereunder shall be given to the appropriate party at the party’s last known address. Such notice shall be\ndeemed given upon personal delivery to the last known address or if sent by certified or registered mail, three days after the date of mailing.\n7. General Provisions.\n7.1 Governing Law. This Agreement will be governed by and construed according to the laws of the State of Texas without regard to\nconflicts of law principles.\n7.2 Exclusive Forum. I hereby irrevocably agree that the exclusive forum for any suit, action, or other proceeding arising out of or in any\nway related to this Agreement shall be in the state or federal courts in Texas, and I agree to the exclusive personal jurisdiction and venue of\nany court in Travis County, Texas.\n7.3 Entire Agreement. This Agreement, together with the terms of the Board Offer Letter, set forth the entire agreement and\nunderstanding between the Company and myself relating to the subject matter hereof and supersedes and merges all prior discussions between\nus. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing\nsigned by the party to be charged. Any subsequent change or changes in my duties, or compensation will not affect the validity or scope of this\nAgreement. As used in this Agreement, the period of my Membership includes any time during which I may be retained by the Company as a\nconsultant.\n \n7.4 Severability. I acknowledge and agree that each agreement and covenant set forth herein constitutes a separate agreement\nindependently supported by good and adequate consideration and that each such agreement shall be severable from the other provisions of this\nAgreement and shall survive this Agreement.\n7.5 Survival. The provisions of this Agreement shall survive the termination of my Membership for any reason and the assignment of this\nAgreement by the Company to any successor in interest or other assignee.\n7.6 Waiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No\nwaiver by the Company of any right under this Agreement shall be construed as a waiver of any other right. The Company shall not be\nrequired to give notice to enforce strict adherence to all terms of this Agreement.\n7.7 Headings. The headings to each section or paragraph of this Agreement are provided for convenience of reference only and shall\nhave no legal effect in the interpretation of the terms hereof.\n7.8 Attorney’s Fees. In the event of litigation between me and the Company, the non-prevailing party (as determined at the time the court\nrenders final non-appealable judgment on the litigation as a whole) shall pay to the prevailing party, in addition to any other amounts awarded,\nall reasonable legal and other related costs and expenses, including for example but not limited to attorneys’ fees, expert witness fees, court\ncosts, costs of appeal, and all other reasonable out-of-pocket expenses incurred by the prevailing party in connection with such litigation.\n \n[Signature Page Follows]\nThis Agreement shall be effective as of the first day of my Membership on the Company’s Board of Directors.\nI UNDERSTAND THAT THIS AGREEMENT RESTRICTS MY RIGHT TO DISCLOSE OR USE THE COMPANY’S CONFIDENTIAL\nAND PROPRIETARY INFORMATION DURING OR SUBSEQUENT TO MY POSITION ON THE NEWGISTICS, INC. BOARD OF\nDIRECTORS.\n/s/ Stephen M. Mattessich\nStephen M. Mattessich\nACCEPTED AND AGREED TO:\nNEWGISTICS, INC.\nBy: /s/ William J. Razzouk\nWilliam J. Razzouk\nPresident and Chief Executive Officer	NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement ("Agreement") is entered into as of March 29, 2011, by and between the undersigned and Newgistics, Inc. (the\n"Company"), with reference to the following:\nRECITALS\nWHEREAS, I have been elected to serve on the Company's Board of Directors (the "Board"); and\nWHEREAS, in my capacity as a member of the Board, I will receive the Company's confidential and Proprietary Information (as defined\nbelow) and, subject to the Board's discretion and approval, the Company will grant me a present right to purchase shares of the Company's common\nstock, in each case as further provided in the offer letter by and between me and the Company (the "Board Offer Letter"); and\nWHEREAS, this Agreement is necessary to protect and prevent any unauthorized, improper or unlawful disclosure of the Company's\nProprietary Information.\nAGREEMENT\nNOW THEREFORE, in exchange for the consideration provided to me in connection with my membership on the Board, including but not\nlimited to the Company's promise to provide me with immediate access to its Proprietary Information and, subject to the Board of Directors'\ndiscretion and approval, the promise to grant me a present right to purchase shares of the Company's common stock, and for other valuable\nconsideration, the receipt and sufficiency of which is hereby acknowledged, I agree as follows:\n1.\nRecognition of Company's Rights; Nondisclosure.\nAt all times that I am a member of the Board (hereinafter referred to as my "Membership") and for two years thereafter, I will hold in\nstrictest confidence and will not disclose, use, lecture upon, or publish any of the Company's confidential or Proprietary Information (defined\nbelow), except as such disclosure, use, or publication may be required in connection with my Membership, or unless the President or the Board\nexpressly authorizes such in writing. I hereby assign to the Company any rights I may have or acquire in such confidential or Proprietary\nInformation and recognize that all confidential and Proprietary Information shall be the sole property of the Company and its assigns and that\nthe Company and its assigns shall be the sole owner of all patent rights, copyrights, trade secret rights, and all other rights throughout the\nworld (collectively, "Proprietary Rights") in connection therewith. I further recognize that any suggestions, comments or contributions I make\nat\nany meeting of the Board or in connection with my duties during the term of my Membership is the Company's confidential and Proprietary\nInformation.\nThe term "Proprietary Information" shall mean trade secrets, confidential knowledge, data, or any other proprietary information of the\nCompany and each of its subsidiaries or affiliated companies. By way of illustration but not limitation, "Proprietary Information" includes\n(a) inventions, trade secrets, ideas, processes, formulas, data, lists, programs, other works of authorship, know-how, improvements,\ndiscoveries, developments, designs, and techniques relating to the business or proposed business of the Company and that were learned or\ndiscovered by me during the term of my Membership with the Company; (b) information regarding plans for research, development, new\nproducts and services, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs,\nsuppliers, customer lists and customers that were learned or discovered by me during my Membership; and (c) information regarding the skills\nand compensation of employees of the Company. Proprietary Information shall not include information (i) already in my possession and not\nsubject to confidentiality requirements at the time of disclosure, (ii) obtained by me from another source without the duty of confidentiality, or\n(iii) readily available or generally known to the general public or to persons in the industry.\n2.\nThird Party Information.\nI understand, in addition, that the Company may from time to time receive from third parties confidential or proprietary information ("Third\nParty Information") subject to a duty on the Company's part to maintain the confidentiality of such information and to use it only for certain limited\npurposes. During the term of my Membership and thereafter, I will hold Third Party Information in the strictest confidence and will not disclose (to\nanyone other than Company personnel who need to know such information in connection with their work for the Company) or use, except in\nconnection with my Membership, Third Party Information unless expressly authorized in writing by an executive officer of the Company or the\nBoard.\n3.\nNo Improper Use of Materials.\nI understand and agree that, in connection with my Membership, I shall not use or disclose the proprietary or confidential information or\ntrade secrets of any employer, former employer, company for which I served on the Board of Directors, company for which I served on the\nadvisory board, or any other person or entity. During my Membership, I will not bring onto the premises of the Company any unpublished\ndocuments or any property belonging to any employer, former employer or any other person or entity to whom I have an obligation of\nconfidentiality unless consented to in writing by that employer, former employer, person, or entity.\n4.\nNo Conflicting Obligation.\nI\nrepresent\nthat\nmy\nperformance\nof\nall\nthe\nduties\nin\nconnection\nwith\nmy\nMembership\ndoes\nnot\nand\nwill\nnot\nbreach\nany\nagreement\nbetween\nme and any other company, person or entity. I have not entered into, and I agree I will not enter into, any agreement either written or oral in\nconflict herewith.\n5.\nLegal and Equitable Remedies.\nBecause my services are personal and unique and because I may have access to and become acquainted with the confidential and\nProprietary Information of the Company, the Company shall have the right to enforce this Agreement and any of its provisions by injunction,\nspecific performance, or other equitable relief, without bond and without prejudice to any other rights and remedies that the Company may\nhave for a breach of this Agreement.\n6. Notices.\nAny notices required or permitted hereunder shall be given to the appropriate party at the party's last known address. Such notice shall be\ndeemed given upon personal delivery to the last known address or if sent by certified or registered mail, three days after the date of mailing.\n7.\nGeneral Provisions.\n7.1 Governing Law. This Agreement will be governed by and construed according to the laws of the State of Texas without regard to\nconflicts of law principles.\n7.2 Exclusive Forum. I hereby irrevocably agree that the exclusive forum for any suit, action, or other proceeding arising out of or in any\nway related to this Agreement shall be in the state or federal courts in Texas, and I agree to the exclusive personal jurisdiction and venue of\nany court in Travis County, Texas.\n7.3 Entire Agreement. This Agreement, together with the terms of the Board Offer Letter, set forth the entire agreement and\nunderstanding between the Company and myself relating to the subject matter hereof and supersedes and merges all prior discussions between\nus. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing\nsigned\nby the party to be charged. Any subsequent change or changes in my duties, or compensation will not affect the validity or scope of\nthis\nAgreement. As used in this Agreement, the period of my Membership includes any time during which I may be retained by the Company as\na\nconsultant.\n7.4 Severability.. I acknowledge and agree that each agreement and covenant set forth herein constitutes a separate agreement\nindependently supported by good and adequate consideration and that each such agreement shall be severable from the other provisions of this\nAgreement and shall survive this Agreement.\n7.5 Survival. The provisions of this Agreement shall survive the termination of my Membership for any reason and the assignment of this\nAgreement by the Company to any successor in interest or other assignee.\n7.6 Waiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No\nwaiver by the Company of any right under this Agreement shall be construed as a waiver of any other right. The Company shall not be\nrequired to give notice to enforce strict adherence to all terms of this Agreement.\n7.7 Headings. The headings to each section or paragraph of this Agreement are provided for convenience of reference only and shall\nhave no legal effect in the interpretation of the terms hereof.\n7.8 Attorney's Fees. In the event of litigation between me and the Company, the non-prevailing party (as determined at the time the court\nrenders final non-appealable judgment on the litigation as a whole) shall pay to the prevailing party, in addition to any other amounts awarded,\nall reasonable legal and other related costs and expenses, including for example but not limited to attorneys' fees, expert witness fees, court\ncosts, costs of appeal, and all other reasonable out-of-pocket expenses incurred by the prevailing party in connection with such litigation.\n[Signature Page Follows]\nThis Agreement shall be effective as of the first day of my Membership on the Company's Board of Directors.\nI UNDERSTAND THAT THIS AGREEMENT RESTRICTS MY RIGHT TO DISCLOSE OR USE THE COMPANY'S CONFIDENTIAL\nAND PROPRIETARY INFORMATION DURING OR SUBSEQUENT TO MY POSITION ON THE NEWGISTICS, INC. BOARD OF\nDIRECTORS.\n/s/ Stephen M. Mattessich\nStephen M. Mattessich\nACCEPTED AND AGREED TO:\nNEWGISTICS, INC.\nBy: /s/ William J. Razzouk\nWilliam J. Razzouk\nPresident and Chief Executive Officer	NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (“Agreement”) is entered into as of March 29, 2011, by and between the undersigned and Newgistics, Inc. (the\n“Company”), with reference to the following:\nRECITALS\nWHEREAS, I have been elected to serve on the Company’s Board of Directors (the “Board”); and\nWHEREAS, in my capacity as a member of the Board, I will receive the Company’s confidential and Proprietary Information (as defined\nbelow) and, subject to the Board’s discretion and approval, the Company will grant me a present right to purchase shares of the Company’s common\nstock, in each case as further provided in the offer letter by and between me and the Company (the “Board Offer Letter”); and\nWHEREAS, this Agreement is necessary to protect and prevent any unauthorized, improper or unlawful disclosure of the Company’s\nProprietary Information.\nAGREEMENT\nNOW THEREFORE, in exchange for the consideration provided to me in connection with my membership on the Board, including but not\nlimited to the Company’s promise to provide me with immediate access to its Proprietary Information and, subject to the Board of Directors’\ndiscretion and approval, the promise to grant me a present right to purchase shares of the Company’s common stock, and for other valuable\nconsideration, the receipt and sufficiency of which is hereby acknowledged, I agree as follows:\n1. Recognition of Company’s Rights; Nondisclosure.\nAt all times that I am a member of the Board (hereinafter referred to as my “Membership”) and for two years thereafter, I will hold in\nstrictest confidence and will not disclose, use, lecture upon, or publish any of the Company’s confidential or Proprietary Information (defined\nbelow), except as such disclosure, use, or publication may be required in connection with my Membership, or unless the President or the Board\nexpressly authorizes such in writing. I hereby assign to the Company any rights I may have or acquire in such confidential or Proprietary\nInformation and recognize that all confidential and Proprietary Information shall be the sole property of the Company and its assigns and that\nthe Company and its assigns shall be the sole owner of all patent rights, copyrights, trade secret rights, and all other rights throughout the\nworld (collectively, “Proprietary Rights”) in connection therewith. I further recognize that any suggestions, comments or contributions I make\nat any meeting of the Board or in connection with my duties during the term of my Membership is the Company’s confidential and Proprietary\nInformation.\nThe term “Proprietary Information” shall mean trade secrets, confidential knowledge, data, or any other proprietary information of the\nCompany and each of its subsidiaries or affiliated companies. By way of illustration but not limitation, “Proprietary Information” includes\n(a) inventions, trade secrets, ideas, processes, formulas, data, lists, programs, other works of authorship, know-how, improvements,\ndiscoveries, developments, designs, and techniques relating to the business or proposed business of the Company and that were learned or\ndiscovered by me during the term of my Membership with the Company; (b) information regarding plans for research, development, new\nproducts and services, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs,\nsuppliers, customer lists and customers that were learned or discovered by me during my Membership; and (c) information regarding the skills\nand compensation of employees of the Company. Proprietary Information shall not include information (i) already in my possession and not\nsubject to confidentiality requirements at the time of disclosure, (ii) obtained by me from another source without the duty of confidentiality, or\n(iii) readily available or generally known to the general public or to persons in the industry.\n2. Third Party Information.\nI understand, in addition, that the Company may from time to time receive from third parties confidential or proprietary information (“Third\nParty Information”) subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited\npurposes. During the term of my Membership and thereafter, I will hold Third Party Information in the strictest confidence and will not disclose (to\nanyone other than Company personnel who need to know such information in connection with their work for the Company) or use, except in\nconnection with my Membership, Third Party Information unless expressly authorized in writing by an executive officer of the Company or the\nBoard.\n3. No Improper Use of Materials.\nI understand and agree that, in connection with my Membership, I shall not use or disclose the proprietary or confidential information or\ntrade secrets of any employer, former employer, company for which I served on the Board of Directors, company for which I served on the\nadvisory board, or any other person or entity. During my Membership, I will not bring onto the premises of the Company any unpublished\ndocuments or any property belonging to any employer, former employer or any other person or entity to whom I have an obligation of\nconfidentiality unless consented to in writing by that employer, former employer, person, or entity.\n4. No Conflicting Obligation.\nI represent that my performance of all the duties in connection with my Membership does not and will not breach any agreement between\nme and any other company, person or entity. I have not entered into, and I agree I will not enter into, any agreement either written or oral in\nconflict herewith.\n5. Legal and Equitable Remedies.\nBecause my services are personal and unique and because I may have access to and become acquainted with the confidential and\nProprietary Information of the Company, the Company shall have the right to enforce this Agreement and any of its provisions by injunction,\nspecific performance, or other equitable relief, without bond and without prejudice to any other rights and remedies that the Company may\nhave for a breach of this Agreement.\n6. Notices.\nAny notices required or permitted hereunder shall be given to the appropriate party at the party’s last known address. Such notice shall be\ndeemed given upon personal delivery to the last known address or if sent by certified or registered mail, three days after the date of mailing.\n7. General Provisions.\n7.1 Governing Law. This Agreement will be governed by and construed according to the laws of the State of Texas without regard to\nconflicts of law principles.\n7.2 Exclusive Forum. I hereby irrevocably agree that the exclusive forum for any suit, action, or other proceeding arising out of or in any\nway related to this Agreement shall be in the state or federal courts in Texas, and I agree to the exclusive personal jurisdiction and venue of\nany court in Travis County, Texas.\n7.3 Entire Agreement. This Agreement, together with the terms of the Board Offer Letter, set forth the entire agreement and\nunderstanding between the Company and myself relating to the subject matter hereof and supersedes and merges all prior discussions between\nus. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing\nsigned by the party to be charged. Any subsequent change or changes in my duties, or compensation will not affect the validity or scope of this\nAgreement. As used in this Agreement, the period of my Membership includes any time during which I may be retained by the Company as a\nconsultant.\n7.4 Severability. I acknowledge and agree that each agreement and covenant set forth herein constitutes a separate agreement\nindependently supported by good and adequate consideration and that each such agreement shall be severable from the other provisions of this\nAgreement and shall survive this Agreement.\n7.5 Survival. The provisions of this Agreement shall survive the termination of my Membership for any reason and the assignment of this\nAgreement by the Company to any successor in interest or other assignee.\n7.6 Waiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No\nwaiver by the Company of any right under this Agreement shall be construed as a waiver of any other right. The Company shall not be\nrequired to give notice to enforce strict adherence to all terms of this Agreement.\n7.7 Headings. The headings to each section or paragraph of this Agreement are provided for convenience of reference only and shall\nhave no legal effect in the interpretation of the terms hereof.\n7.8 Attorney’s Fees. In the event of litigation between me and the Company, the non-prevailing party (as determined at the time the court\nrenders final non-appealable judgment on the litigation as a whole) shall pay to the prevailing party, in addition to any other amounts awarded,\nall reasonable legal and other related costs and expenses, including for example but not limited to attorneys’ fees, expert witness fees, court\ncosts, costs of appeal, and all other reasonable out-of-pocket expenses incurred by the prevailing party in connection with such litigation.\n[Signature Page Follows]\nThis Agreement shall be effective as of the first day of my Membership on the Company’s Board of Directors.\nI UNDERSTAND THAT THIS AGREEMENT RESTRICTS MY RIGHT TO DISCLOSE OR USE THE COMPANY’S CONFIDENTIAL\nAND PROPRIETARY INFORMATION DURING OR SUBSEQUENT TO MY POSITION ON THE NEWGISTICS, INC. BOARD OF\nDIRECTORS.\n/s/ Stephen M. Mattessich\nStephen M. Mattessich\nACCEPTED AND AGREED TO:\nNEWGISTICS, INC.\nBy: /s/ William J. Razzouk\nWilliam J. Razzouk\nPresident and Chief Executive Officer
+e27493a33c9ed1e83afb03814033d23c.pdf	effective_date jurisdiction party term	EX-10.2 4 dex102.htm NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT\nExhibit 10.2\nEXECUTION COPY\nNON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY\nAGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (the “Agreement”), dated as of\nMay 26, 2011, is made by and between Skyworks Solutions, Inc., a Delaware corporation (“Buyer”), and Richard K. Williams, an individual residing\nin the State of California (the “Stockholder”). The Buyer and the Stockholder are each referred to in this Agreement as a “Party” and collectively as\nthe “Parties.”\nRECITALS\nA. The Buyer, PowerCo Acquisition Corp., a Delaware corporation (the “Merger Sub”), and Advanced Analogic Technologies, Inc., a\nDelaware corporation (the “Company”) have entered into an Agreement and Plan of Merger, dated as of May 26, 2011 (the “Merger Agreement”),\npursuant to which the Buyer will acquire the Company through a merger of Merger Sub with and into the Company. After giving effect to the\nMerger, the Company will be a wholly-owned subsidiary of the Buyer (the “Merger”).\nB. The Company is engaged, either directly or through subsidiaries, in the business of developing, designing, manufacturing, licensing,\nmarketing, selling and distributing power management semiconductors and related software (the “Business”). (For the purpose of clarity: The\nCompany does not engage in business, applications or software unrelated to power management semiconductors (such as microprocessors, digital\nmemory, discrete sensors and biotech). It also does not engage in devices and circuits used in motor drive.)\nC. The parties acknowledge that the relevant market for the Business is worldwide in scope and that intense worldwide competition\nexists for the products and services of the Business.\nD. The Stockholder has a substantial equity interest in the Company and will receive significant cash and stock proceeds and other\nvaluable consideration as a result of the Merger. The Stockholder is a member of the Company’s board of directors, an executive officer of the\nCompany and one of the Company’s key employees, and acknowledges that he has detailed knowledge of competitively sensitive and important\nConfidential Information and trade secrets of the Company, including information regarding the Company’s plans and relationships with customers,\nsuppliers and others. The Stockholder recognizes the Buyer’s interest, as a purchaser of the Company, in protecting, among other things, the\nrelationships that the Company and its subsidiaries have with customers and suppliers and the goodwill associated with their ongoing business.\nE. The Parties agree that it is their mutual desire that the entire goodwill of the Company and its business be transferred to the Buyer as\npart of the Merger, and they acknowledge that they explicitly considered the value of the goodwill to be transferred in the Merger, and that such\ngoodwill was valued as a component of the consideration to be paid by the Buyer in and for the Merger. The Parties further agree that the Buyer’s\nfailure to receive the entire goodwill contemplated by the Merger would have affected the Buyer’s willingness to enter into the Merger Agreement or\nreduced the value of the Merger and the Company to the Buyer and the price the Buyer was willing to pay to acquire the Company.\nEXECUTION COPY\nF. The Stockholder acknowledges and agrees that it is his intention to transfer the goodwill reflected in the capital stock of the Company\nthat he owns and that the Stockholder has a material economic interest in the consummation of the Merger. The Stockholder has considered the\neffects of this Agreement, considers them reasonable and, in order to induce the Buyer to enter into the Merger Agreement and consummate the\nMerger, the Stockholder has agreed to enter into and be bound by this Agreement.\nAccordingly, the Parties are executing and delivering this Agreement contemporaneously with the execution and delivery of the Merger\nAgreement, and that the continued effectiveness of this Agreement is a condition to the Buyer’s obligations to consummate the Merger.\nNOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements set forth herein, and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, the Buyer and the Stockholder, for themselves and their\nsuccessors and assigns, and intending to be legally bound, hereby agree as follows:\nAGREEMENTS\n1. Definitions. As used in this Agreement, the following terms shall have the following respective meanings.\n(a) “Affiliate” of a Person means any other Person that directly or indirectly through one or more intermediaries, controls, is\ncontrolled by or is under common control with the first Person. For purposes of this definition, “control” of a Person shall mean the possession,\ndirectly or indirectly, of the power to direct or cause the direction of the management policies of a Person, whether through the ownership of voting\nsecurities, (including, but not limited to, the ownership of ten percent (10%) or more of the voting securities of the Person), by contract, as trustee or\nexecutor or otherwise.\n(b) “Company Customer” means (i) any Person to whom or which the Company or any of its subsidiaries is currently selling\nproducts or providing services or with whom or which the Company or any of its subsidiaries currently has a signed agreement to sell products or\nprovide services, (ii) any Person to whom or which the Company or any of its subsidiaries sold products, provided services or signed an agreement\nto sell products or provide services during the twenty-four (24) month period immediately preceding the Effective Time, (iii) any Person to whom or\nwhich the Company or any of its subsidiaries has contacted, solicited or provided a proposal for services, or any Person who has contacted or\nsolicited the Company or any of its subsidiaries regarding products or services of the Company or any of its subsidiaries, during the twenty-four\n(24) month period immediately preceding the Effective Time, (iv) any Person whom the Stockholder knows or has reason to know the Company or\nany of its subsidiaries currently plans to solicit as a client for its products or services, or future products or services, or (v) any Affiliate of any Person\ndescribed in clauses (i) through (iv) above.\n-2-\nEXECUTION COPY\n(c) “Confidential Information” means any and all confidential and proprietary information pertaining to the Company or any of\nits subsidiaries, such as proposals, plans, inventions, practices, systems, programs, subscriptions, strategies, formulas, processes, methods,\ntechniques, research, records, suppliers, sources, customer lists, billing information, other forms of business information, and trade secrets of every\nkind and character, whether or not they constitute a trade secret under applicable law. The term Confidential Information shall not include any\ninformation in the public domain or information that is rightfully in the possession of a third party and is not subject to a confidentiality obligation,\nprovided that such information has not entered the public domain or come into possession of a third party due to the violation of any contractual,\nfiduciary or other legal obligation of the Stockholder or any other person or entity.\n(d) “Person” means an individual, corporation, limited liability company, partnership, limited partnership, association, estate,\ntrust, unincorporated organization, governmental entity or authority (including, but not limited to, any municipal, county or state entity, board,\nauthority, agency or similar organization), or any other entity or organization.\n(e) “Restricted Period” means the period from and after the date hereof and continuing until the twenty-four (24) month\nanniversary of the Effective Time (as such term is defined in the Merger Agreement) of the Merger.\n2. Non-Competition. As an inducement for the Buyer to enter into the Merger Agreement and to consummate the Merger, and in\nconnection with the sale of the Stockholder’s equity interest in the Company pursuant to the Merger, the Stockholder agrees that during the\nRestricted Period, the Stockholder shall not, anywhere in the world, directly or indirectly engage, without the express prior written consent of the\nBuyer after the date hereof, in any business or activity in competition with the Business, whether as an employee, consultant, partner, principal,\nagent, representative, equity holder or in any other individual, corporate or representative capacity (without limitation by specific enumeration of the\nforegoing), or render any services or provide any advice to any Person in competition (or seeking to compete, directly or indirectly) with the\nBusiness (a “Competing Business”). Nothing in this Section 2 shall prohibit the Stockholder from (i) acquiring up to two percent (2%) of any class\nof outstanding equity security of any competing business whose equity securities are regularly traded on a national securities exchange or The\nNasdaq Market, (ii) making or holding a passive investment in a venture fund, angel fund, or similar investment vehicle that invests in a competing\nbusiness representing less than two percent (2%) of the total investment of such venture fund, angel fund, or similar investment or (iii) making or\nholding a passive investment in a private company engaged in a competing business representing less than two percent (2%) of the total investment\nof such private company; provided, that if the Stockholder is then an employee of the Buyer, the Company or any of their respective subsidiaries,\nsuch investment shall be permitted only if (i) such investment does not interfere with the Stockholder’s duties and obligations to the Buyer, the\nCompany and their respective subsidiaries, as determined in good faith by the Board of Directors of the Company (prior to the Effective Time) or the\nBuyer (following the Effective Time) in its sole discretion and (ii) such shares shall not constitute more than five percent (5%) of the Stockholder’s\nnet worth.\n-3-\nEXECUTION COPY\n3. Non-Solicitation of Employees. During the Restricted Period:\n(a) The Stockholder shall not directly or indirectly solicit (or assist, participate in or promote the solicitation of) any individual\nwho is then employed by the Buyer, the Company or any of their respective direct or indirect subsidiaries to leave such employment. The Parties\nhereto agree that the placing of general advertisements in newspapers, magazines or electronic media, or other communication targeted to a\ngeneralized audience, in either case which are not specifically aimed at the Buyer, the Company, or any of their respective direct or indirect\nsubsidiaries shall not, in itself, constitute a breach of this Section 3.\n(b) The Stockholder shall not disclose any intent that he may form to terminate his employment with the Buyer, the Company or\nany of their respective direct or indirect subsidiaries to any employee of the Buyer, the Company or any of their respective subsidiaries prior to the\nearliest to occur of either the date on which such employment terminates or the date on which the Buyer or the Company provides notice to\nemployees generally of such termination.\n(c) If a former employee of the Company or any of its subsidiaries contacts the Stockholder about (i) any business matter\ninvolving the Buyer, the Company or any of their respective subsidiaries, or (ii) any matter involving the former employee’s new business\n(including, but not limited to, prospective employment with such new business), the Stockholder shall inform the former employee that he cannot\ndiscuss the matter further.\n4. Non-Solicitation of Company Customers. During the Restricted Period:\n(a) The Stockholder shall not directly or indirectly solicit, divert or take away, or assist in or attempt to solicit, divert or take\naway, the business or patronage of any Company Customer.\n(b) If a Company Customer contacts the Stockholder concerning the possibility of a discontinuation or reduction of the Company\nCustomer’s business with the Buyer, the Company or any of their respective subsidiaries, the Stockholder shall inform such Company Customer that\nhe cannot discuss the matter further without informing the Buyer and the Company.\n(c) The Stockholder shall not disclose any intent that he may form to terminate his employment with the Buyer, the Company or\nany of their respective subsidiaries to any Company Customer prior to the termination of such employment or the date, if earlier, on which the Buyer\nor the Company publicly discloses such termination.\n5. Confidentiality.\n(a) The Stockholder acknowledges that Confidential Information has been and will continue to be of central importance to the\nbusiness of the Company and its subsidiaries and that disclosure of it to or its use by others could cause substantial loss to the Company and its\nsubsidiaries and, following the Effective Time, to the Buyer and its subsidiaries. Accordingly, from and after the date of this Agreement, the\nStockholder shall maintain the confidentiality of all Confidential Information and shall not use or disclose any\n-4-\nEXECUTION COPY\nConfidential Information to any Person, for any reason or purpose, except (i) as reasonably required to perform his duties to the Company and its\nsubsidiaries as a director, officer and/or employee thereof (or his duties to the Buyer and its subsidiaries, as the case may be, following the Effective\nTime), and for their sole benefit, or (ii) as required by law as described in Section 5(c) below.\n(b) The obligations contained in Section 5(a) shall not apply to any information which has: (i) become publicly known and made\ngenerally available through no wrongful act of the Stockholder or of others who were under confidentiality obligations as to the item or items\ninvolved, or (ii) been independently acquired or developed by the Stockholder outside the scope of his duties at the Company and its subsidiaries or\nany predecessor of the Company.\n(c) If the Stockholder becomes legally obligated (by deposition, interrogatory, request for documents, subpoena, civil\ninvestigation, demand or similar process) to disclose any Confidential Information, the Stockholder shall provide the Buyer and the Company with\nprompt written notice of such requirement so that the Buyer or the Company, as the case may be, may seek a protective order or other appropriate\nrelief. If a protective order or other remedy is not obtained by the Buyer or the Company, the Stockholder may furnish only that portion of\nConfidential Information which is required pursuant to the legal process, and (at the Buyer’s or the Company’s expense, as the case may be) shall\nexercise reasonable efforts to obtain reliable assurances that confidential treatment will be accorded such Confidential Information. If either during\nor after his employment with the Buyer, the Company or any of their respective subsidiaries, the Stockholder receives a subpoena or other inquiry\nrelated to a regulatory, civil or criminal proceeding concerning any matter which may involve the Buyer, the Company or any of their respective\nsubsidiaries, whether or not such matter could result in the Stockholder having to disclose any Confidential Information, the Stockholder shall give\nprompt notice to the Buyer or the Company, as the case may be, of the subpoena or inquiry and the matter covered thereby and any information\nwhich the Stockholder is required to produce in connection therewith.\n6. Equitable Remedies. The Buyer and the Stockholder confirm that the restrictions contained in this Agreement are, in view of the\nnature of the business of the Company, reasonable and necessary to protect the legitimate interests of the Buyer and that any breach of any material\nprovision in this Agreement will result in irreparable injury to the Buyer. Therefore, the Stockholder hereby agrees that, in the event of any breach or\nthreatened breach of any material term or condition of this Agreement by the Stockholder, the Buyer’s remedies at law will be inadequate and, in any\nsuch event, the Buyer shall be entitled to commence an action for preliminary and permanent injunctive relief and other equitable and monetary\nrelief (including attorneys’ fees) in any court of competent jurisdiction, and that if such relief is granted the Buyer shall not be required to post any\nbond.\n7. Miscellaneous.\n7.1 Governing Law. This Agreement shall be interpreted and enforced pursuant to the laws of the State of California, without\ngiving any effect to the conflict of laws rules or principles of any jurisdiction.\n-5-\nEXECUTION COPY\n7.2 Dispute Resolution; Waiver of Jury Trial.\n(a) All disputes, claims or controversies arising out of or in connection with this Agreement shall be subject to the jurisdiction of\nthe courts of the State of California located in Santa Clara County, California and the United States District Court for the Northern District of\nCalifornia, and each of the Company and the Stockholder hereby waives any objection to the laying of venue in any such court. Notwithstanding the\nprevious sentence and provided both Parties consent, the Parties may, at any time after the inception of a dispute, claim or controversy arising out of\nor in connection with this Agreement, submit such dispute, claim or controversy to binding arbitration under the rules of the American Arbitration\nAssociation in effect at the inception of such dispute, claim or controversy. The Parties shall cooperate fully with each other so that any such dispute,\nclaim or controversy submitted to binding arbitration pursuant to this Section 7.2 may be resolved as expeditiously as possible.\n(b) The prevailing Party in a proceeding commenced with respect to any dispute, claim or controversy arising out of or in\nconnection with this Agreement shall be entitled to recover, in addition to any other relief awarded, its reasonable costs and expenses, including\nattorneys’ and expert witness fees and disbursements, of preparing for and participating in any such proceeding.\n(c) The Buyer and the Stockholder each hereby waives the right to trial by jury in all proceedings commenced with respect to any\ndisputes, claims or controversies arising out of or in connection with this Agreement.\n(d) STOCKHOLDER HAS READ AND UNDERSTANDS THIS SECTION 7.2 WHICH DISCUSSES THE WAIVER OF\nSTOCKHOLDER’S RIGHT TO A JURY TRIAL. STOCKHOLDER UNDERSTANDS THAT BY SIGNING THIS AGREEMENT,\nSTOCKHOLDER IS WAIVING HIS RIGHT TO A JURY TRIAL IN ALL DISPUTES, CLAIMS OR CONTROVERSIES RELATING TO ANY\nASPECT OF THIS AGREEMENT.\n7.3 Amendments. This Agreement may not be changed, amended or modified orally. This Agreement may be changed, amended\nor modified only by an agreement in writing signed by the Party against whom enforcement of any such waiver, change, amendment, modification or\ndischarge may be sought.\n7.4 Assignment. This Agreement shall be binding upon and inure to the benefit of the executors, administrators, heirs, successors,\nand assigns of the Parties; provided, however, that this Agreement shall not be assignable by the Stockholder. The Stockholder agrees that, upon\nrequest therefor, he will, in writing, acknowledge and consent to any such assignment of this Agreement.\n7.5 Waiver. Failure or delay on the part of either Party hereto to enforce any right, power or privilege hereunder shall not be\ndeemed to constitute a waiver thereof. A waiver by one Party of a breach of any promise by the other Party contained herein shall not operate as or\nbe construed to constitute a waiver of any subsequent breach of such promise by such other Party.\n-6-\nEXECUTION COPY\n7.6 Headings. The headings of the sections and paragraphs contained in this Agreement are for reference purposes only and shall\nnot in any way affect the meaning or interpretation of any provision of this Agreement.\n7.7 Construction. The language used in this Agreement shall be deemed to be the language chosen by the Parties hereto to\nexpress their mutual intent, and no rule of strict construction, for or against either Party, shall be applied. Capitalized terms used in this Agreement\nwithout definition shall have the respective meaning ascribed to them in the Merger Agreement.\n7.8 Counterparts. This Agreement may be executed in counterparts, none of which need contain the signature of more than one\nParty hereto, each of which shall be deemed to be an original, and all of which together shall constitute a single agreement.\n7.9 Acknowledgement. The Stockholder represents and warrants that (a) he has carefully read and fully understands the terms of\nthis Agreement; (b) he has signed it voluntarily and with full knowledge of its contents, its legal consequences, and the rights and obligations of the\nParties; and (c) that the Stockholder has been advised to and has had a reasonable opportunity to review this Agreement and consult with the attorney\nor other personal counsel of the Stockholder’s choosing before entering into this Agreement. The Stockholder expressly agrees that he has no\nexpectations or understandings contrary to the Agreement and no usage of trade or regular practice in the industry shall be used to modify this\nAgreement. The Stockholder acknowledges that this Agreement constitutes the entire agreement between the Stockholder and the Company with\nrespect to the subject matter hereof and this Agreement supersedes any and all prior or contemporaneous written or oral agreements, representations,\nor any other documents or understandings; provided, however, that nothing herein supersedes the Stockholder Agreement of even date herewith to\nwhich the Stockholder is a party.\n7.10 Effect. This Agreement shall be effective from and after the date first written above upon execution and delivery by the\nParties; provided, however, that if the Merger is not consummated and the Merger Agreement is terminated, this Agreement shall automatically\nterminate concurrently with the termination of the Merger Agreement and shall be of no further force or effect.\n[signature page follows]\n-7-\nIN WITNESS WHEREOF, the Parties have executed this Non-Competition, Non-Solicitation and Confidentiality Agreement as of the date\nfirst set forth above.\nSKYWORKS SOLUTIONS, INC.\nBy: /s/ David J. Aldrich\nName: David J. Aldrich\nTitle: President and CEO\nSIGNATURE PAGE TO NON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nIN WITNESS WHEREOF, the Parties have executed this Non-Competition, Non-Solicitation and Confidentiality Agreement as of the date\nfirst set forth above.\nSTOCKHOLDER\nBy: /s/ Richard K. Williams\nSIGNATURE PAGE TO NON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT	EX-10.2 4 dex102.htm NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT\nExhibit 10.2\nEXECUTION COPY\nNON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY\nAGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (the “Agreement”), dated as of\nMay 26, 2011, is made by and between Skyworks Solutions, Inc., a Delaware corporation (“Buyer”), and Richard K. Williams, an individual residing\nin the State of California (the “Stockholder”). The Buyer and the Stockholder are each referred to in this Agreement as a “Party” and collectively as\nthe “Parties.”\nRECITALS\nA. The Buyer, PowerCo Acquisition Corp., a Delaware corporation (the “Merger Sub”), and Advanced Analogic Technologies, Inc., a\nDelaware corporation (the “Company”) have entered into an Agreement and Plan of Merger, dated as of May 26, 2011 (the “Merger Agreement”),\npursuant to which the Buyer will acquire the Company through a merger of Merger Sub with and into the Company. After giving effect to the\nMerger, the Company will be a wholly-owned subsidiary of the Buyer (the “Merger”).\nB. The Company is engaged, either directly or through subsidiaries, in the business of developing, designing, manufacturing, licensing,\nmarketing, selling and distributing power management semiconductors and related software (the “Business™). (For the purpose of clarity: The\nCompany does not engage in business, applications or software unrelated to power management semiconductors (such as microprocessors, digital\nmemory, discrete sensors and biotech). It also does not engage in devices and circuits used in motor drive.)\nC. The parties acknowledge that the relevant market for the Business is worldwide in scope and that intense worldwide competition\nexists for the products and services of the Business.\nD. The Stockholder has a substantial equity interest in the Company and will receive significant cash and stock proceeds and other\nvaluable consideration as a result of the Merger. The Stockholder is a member of the Company’s board of directors, an executive officer of the\nCompany and one of the Company’s key employees, and acknowledges that he has detailed knowledge of competitively sensitive and important\nConfidential Information and trade secrets of the Company, including information regarding the Company’s plans and relationships with customers,\nsuppliers and others. The Stockholder recognizes the Buyer’s interest, as a purchaser of the Company, in protecting, among other things, the\nrelationships that the Company and its subsidiaries have with customers and suppliers and the goodwill associated with their ongoing business.\nE. The Parties agree that it is their mutual desire that the entire goodwill of the Company and its business be transferred to the Buyer as\npart of the Merger, and they acknowledge that they explicitly considered the value of the goodwill to be transferred in the Merger, and that such\ngoodwill was valued as a component of the consideration to be paid by the Buyer in and for the Merger. The Parties further agree that the Buyer’s\nfailure to receive the entire goodwill contemplated by the Merger would have affected the Buyer’s willingness to enter into the Merger Agreement or\nreduced the value of the Merger and the Company to the Buyer and the price the Buyer was willing to pay to acquire the Company.\nEXECUTION COPY\nF. The Stockholder acknowledges and agrees that it is his intention to transfer the goodwill reflected in the capital stock of the Company\nthat he owns and that the Stockholder has a material economic interest in the consummation of the Merger. The Stockholder has considered the\neffects of this Agreement, considers them reasonable and, in order to induce the Buyer to enter into the Merger Agreement and consummate the\nMerger, the Stockholder has agreed to enter into and be bound by this Agreement.\nAccordingly, the Parties are executing and delivering this Agreement contemporaneously with the execution and delivery of the Merger\nAgreement, and that the continued effectiveness of this Agreement is a condition to the Buyer’s obligations to consummate the Merger.\nNOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements set forth herein, and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, the Buyer and the Stockholder, for themselves and their\nsuccessors and assigns, and intending to be legally bound, hereby agree as follows:\nAGREEMENTS\n1. Definitions. As used in this Agreement, the following terms shall have the following respective meanings.\n(a) “Affiliate” of a Person means any other Person that directly or indirectly through one or more intermediaries, controls, is\ncontrolled by or is under common control with the first Person. For purposes of this definition, “control” of a Person shall mean the possession,\ndirectly or indirectly, of the power to direct or cause the direction of the management policies of a Person, whether through the ownership of voting\nsecurities, (including, but not limited to, the ownership of ten percent (10%) or more of the voting securities of the Person), by contract, as trustee or\nexecutor or otherwise.\n(b) “Company_ Customer” means (i) any Person to whom or which the Company or any of its subsidiaries is currently selling\nproducts or providing services or with whom or which the Company or any of its subsidiaries currently has a signed agreement to sell products or\nprovide services, (ii) any Person to whom or which the Company or any of its subsidiaries sold products, provided services or signed an agreement\nto sell products or provide services during the twenty-four (24) month period immediately preceding the Effective Time, (iii) any Person to whom or\nwhich the Company or any of its subsidiaries has contacted, solicited or provided a proposal for services, or any Person who has contacted or\nsolicited the Company or any of its subsidiaries regarding products or services of the Company or any of its subsidiaries, during the twenty-four\n(24) month period immediately preceding the Effective Time, (iv) any Person whom the Stockholder knows or has reason to know the Company or\nany of its subsidiaries currently plans to solicit as a client for its products or services, or future products or services, or (v) any Affiliate of any Person\ndescribed in clauses (i) through (iv) above.\n-\nEXECUTION COPY\n(c) “Confidential Information” means any and all confidential and proprietary information pertaining to the Company or any of\nits subsidiaries, such as proposals, plans, inventions, practices, systems, programs, subscriptions, strategies, formulas, processes, methods,\ntechniques, research, records, suppliers, sources, customer lists, billing information, other forms of business information, and trade secrets of every\nkind and character, whether or not they constitute a trade secret under applicable law. The term Confidential Information shall not include any\ninformation in the public domain or information that is rightfully in the possession of a third party and is not subject to a confidentiality obligation,\nprovided that such information has not entered the public domain or come into possession of a third party due to the violation of any contractual,\nfiduciary or other legal obligation of the Stockholder or any other person or entity.\n(d) “Person” means an individual, corporation, limited liability company, partnership, limited partnership, association, estate,\ntrust, unincorporated organization, governmental entity or authority (including, but not limited to, any municipal, county or state entity, board,\nauthority, agency or similar organization), or any other entity or organization.\n(e) “Restricted Period” means the period from and after the date hereof and continuing until the twenty-four (24) month\nanniversary of the Effective Time (as such term is defined in the Merger Agreement) of the Merger.\n2. Non-Competition. As an inducement for the Buyer to enter into the Merger Agreement and to consummate the Merger, and in\nconnection with the sale of the Stockholder’s equity interest in the Company pursuant to the Merger, the Stockholder agrees that during the\nRestricted Period, the Stockholder shall not, anywhere in the world, directly or indirectly engage, without the express prior written consent of the\nBuyer after the date hereof, in any business or activity in competition with the Business, whether as an employee, consultant, partner, principal,\nagent, representative, equity holder or in any other individual, corporate or representative capacity (without limitation by specific enumeration of the\nforegoing), or render any services or provide any advice to any Person in competition (or seeking to compete, directly or indirectly) with the\nBusiness (a “Competing Business”). Nothing in this Section 2 shall prohibit the Stockholder from (i) acquiring up to two percent (2%) of any class\nof outstanding equity security of any competing business whose equity securities are regularly traded on a national securities exchange or The\nNasdaq Market, (ii) making or holding a passive investment in a venture fund, angel fund, or similar investment vehicle that invests in a competing\nbusiness representing less than two percent (2%) of the total investment of such venture fund, angel fund, or similar investment or (iii) making or\nholding a passive investment in a private company engaged in a competing business representing less than two percent (2%) of the total investment\nof such private company; provided, that if the Stockholder is then an employee of the Buyer, the Company or any of their respective subsidiaries,\nsuch investment shall be permitted only if (i) such investment does not interfere with the Stockholder’s duties and obligations to the Buyer, the\nCompany and their respective subsidiaries, as determined in good faith by the Board of Directors of the Company (prior to the Effective Time) or the\nBuyer (following the Effective Time) in its sole discretion and (ii) such shares shall not constitute more than five percent (5%) of the Stockholder’s\nnet worth.\n_3-\nEXECUTION COPY\n3. Non-Solicitation of Employees. During the Restricted Period:\n(a) The Stockholder shall not directly or indirectly solicit (or assist, participate in or promote the solicitation of) any individual\nwho is then employed by the Buyer, the Company or any of their respective direct or indirect subsidiaries to leave such employment. The Parties\nhereto agree that the placing of general advertisements in newspapers, magazines or electronic media, or other communication targeted to a\ngeneralized audience, in either case which are not specifically aimed at the Buyer, the Company, or any of their respective direct or indirect\nsubsidiaries shall not, in itself, constitute a breach of this Section 3.\n(b) The Stockholder shall not disclose any intent that he may form to terminate his employment with the Buyer, the Company or\nany of their respective direct or indirect subsidiaries to any employee of the Buyer, the Company or any of their respective subsidiaries prior to the\nearliest to occur of either the date on which such employment terminates or the date on which the Buyer or the Company provides notice to\nemployees generally of such termination.\n(c) If a former employee of the Company or any of its subsidiaries contacts the Stockholder about (i) any business matter\ninvolving the Buyer, the Company or any of their respective subsidiaries, or (ii) any matter involving the former employee’s new business\n(including, but not limited to, prospective employment with such new business), the Stockholder shall inform the former employee that he cannot\ndiscuss the matter further.\n4. Non-Solicitation of Company Customers. During the Restricted Period:\n(a) The Stockholder shall not directly or indirectly solicit, divert or take away, or assist in or attempt to solicit, divert or take\naway, the business or patronage of any Company Customer.\n(b) If a Company Customer contacts the Stockholder concerning the possibility of a discontinuation or reduction of the Company\nCustomer’s business with the Buyer, the Company or any of their respective subsidiaries, the Stockholder shall inform such Company Customer that\nhe cannot discuss the matter further without informing the Buyer and the Company.\n(c) The Stockholder shall not disclose any intent that he may form to terminate his employment with the Buyer, the Company or\nany of their respective subsidiaries to any Company Customer prior to the termination of such employment or the date, if earlier, on which the Buyer\nor the Company publicly discloses such termination.\n5. Confidentiality.\n(a) The Stockholder acknowledges that Confidential Information has been and will continue to be of central importance to the\nbusiness of the Company and its subsidiaries and that disclosure of it to or its use by others could cause substantial loss to the Company and its\nsubsidiaries and, following the Effective Time, to the Buyer and its subsidiaries. Accordingly, from and after the date of this Agreement, the\nStockholder shall maintain the confidentiality of all Confidential Information and shall not use or disclose any\n4-\nEXECUTION COPY\nConfidential Information to any Person, for any reason or purpose, except (i) as reasonably required to perform his duties to the Company and its\nsubsidiaries as a director, officer and/or employee thereof (or his duties to the Buyer and its subsidiaries, as the case may be, following the Effective\nTime), and for their sole benefit, or (ii) as required by law as described in Section 5(c) below.\n(b) The obligations contained in Section 5(a) shall not apply to any information which has: (i) become publicly known and made\ngenerally available through no wrongful act of the Stockholder or of others who were under confidentiality obligations as to the item or items\ninvolved, or (ii) been independently acquired or developed by the Stockholder outside the scope of his duties at the Company and its subsidiaries or\nany predecessor of the Company.\n(c) If the Stockholder becomes legally obligated (by deposition, interrogatory, request for documents, subpoena, civil\ninvestigation, demand or similar process) to disclose any Confidential Information, the Stockholder shall provide the Buyer and the Company with\nprompt written notice of such requirement so that the Buyer or the Company, as the case may be, may seek a protective order or other appropriate\nrelief. If a protective order or other remedy is not obtained by the Buyer or the Company, the Stockholder may furnish only that portion of\nConfidential Information which is required pursuant to the legal process, and (at the Buyer’s or the Company’s expense, as the case may be) shall\nexercise reasonable efforts to obtain reliable assurances that confidential treatment will be accorded such Confidential Information. If either during\nor after his employment with the Buyer, the Company or any of their respective subsidiaries, the Stockholder receives a subpoena or other inquiry\nrelated to a regulatory, civil or criminal proceeding concerning any matter which may involve the Buyer, the Company or any of their respective\nsubsidiaries, whether or not such matter could result in the Stockholder having to disclose any Confidential Information, the Stockholder shall give\nprompt notice to the Buyer or the Company, as the case may be, of the subpoena or inquiry and the matter covered thereby and any information\nwhich the Stockholder is required to produce in connection therewith.\n6. Equitable Remedies. The Buyer and the Stockholder confirm that the restrictions contained in this Agreement are, in view of the\nnature of the business of the Company, reasonable and necessary to protect the legitimate interests of the Buyer and that any breach of any material\nprovision in this Agreement will result in irreparable injury to the Buyer. Therefore, the Stockholder hereby agrees that, in the event of any breach or\nthreatened breach of any material term or condition of this Agreement by the Stockholder, the Buyer’s remedies at law will be inadequate and, in any\nsuch event, the Buyer shall be entitled to commence an action for preliminary and permanent injunctive relief and other equitable and monetary\nrelief (including attorneys’ fees) in any court of competent jurisdiction, and that if such relief is granted the Buyer shall not be required to post any\nbond.\n7. Miscellaneous.\n7.1 Governing Law. This Agreement shall be interpreted and enforced pursuant to the laws of the State of California, without\ngiving any effect to the conflict of laws rules or principles of any jurisdiction.\n_5-\nEXECUTION COPY\n7.2 Dispute Resolution; Waiver of Jury Trial.\n(a) All disputes, claims or controversies arising out of or in connection with this Agreement shall be subject to the jurisdiction of\nthe courts of the State of California located in Santa Clara County, California and the United States District Court for the Northern District of\nCalifornia, and each of the Company and the Stockholder hereby waives any objection to the laying of venue in any such court. Notwithstanding the\nprevious sentence and provided both Parties consent, the Parties may, at any time after the inception of a dispute, claim or controversy arising out of\nor in connection with this Agreement, submit such dispute, claim or controversy to binding arbitration under the rules of the American Arbitration\nAssociation in effect at the inception of such dispute, claim or controversy. The Parties shall cooperate fully with each other so that any such dispute,\nclaim or controversy submitted to binding arbitration pursuant to this Section 7.2 may be resolved as expeditiously as possible.\n(b) The prevailing Party in a proceeding commenced with respect to any dispute, claim or controversy arising out of or in\nconnection with this Agreement shall be entitled to recover, in addition to any other relief awarded, its reasonable costs and expenses, including\nattorneys’ and expert witness fees and disbursements, of preparing for and participating in any such proceeding.\n(c) The Buyer and the Stockholder each hereby waives the right to trial by jury in all proceedings commenced with respect to any\ndisputes, claims or controversies arising out of or in connection with this Agreement.\n(d) STOCKHOLDER HAS READ AND UNDERSTANDS THIS SECTION 7.2 WHICH DISCUSSES THE WAIVER OF\nSTOCKHOLDER’S RIGHT TO A JURY TRIAL. STOCKHOLDER UNDERSTANDS THAT BY SIGNING THIS AGREEMENT,\nSTOCKHOLDER IS WAIVING HIS RIGHT TO A JURY TRIAL IN ALL DISPUTES, CLAIMS OR CONTROVERSIES RELATING TO ANY\nASPECT OF THIS AGREEMENT.\n7.3 Amendments. This Agreement may not be changed, amended or modified orally. This Agreement may be changed, amended\nor modified only by an agreement in writing signed by the Party against whom enforcement of any such waiver, change, amendment, modification or\ndischarge may be sought.\n7.4 Assignment. This Agreement shall be binding upon and inure to the benefit of the executors, administrators, heirs, successors,\nand assigns of the Parties; provided, however, that this Agreement shall not be assignable by the Stockholder. The Stockholder agrees that, upon\nrequest therefor, he will, in writing, acknowledge and consent to any such assignment of this Agreement.\n \n7.5 Waiver. Failure or delay on the part of either Party hereto to enforce any right, power or privilege hereunder shall not be\ndeemed to constitute a waiver thereof. A waiver by one Party of a breach of any promise by the other Party contained herein shall not operate as or\nbe construed to constitute a waiver of any subsequent breach of such promise by such other Party.\n-6-\nEXECUTION COPY\n7.6 Headings. The headings of the sections and paragraphs contained in this Agreement are for reference purposes only and shall\nnot in any way affect the meaning or interpretation of any provision of this Agreement.\n7.7 Construction. The language used in this Agreement shall be deemed to be the language chosen by the Parties hereto to\nexpress their mutual intent, and no rule of strict construction, for or against either Party, shall be applied. Capitalized terms used in this Agreement\nwithout definition shall have the respective meaning ascribed to them in the Merger Agreement.\n7.8 Counterparts. This Agreement may be executed in counterparts, none of which need contain the signature of more than one\nParty hereto, each of which shall be deemed to be an original, and all of which together shall constitute a single agreement.\n7.9 Acknowledgement. The Stockholder represents and warrants that (a) he has carefully read and fully understands the terms of\nthis Agreement; (b) he has signed it voluntarily and with full knowledge of its contents, its legal consequences, and the rights and obligations of the\nParties; and (c) that the Stockholder has been advised to and has had a reasonable opportunity to review this Agreement and consult with the attorney\nor other personal counsel of the Stockholder’s choosing before entering into this Agreement. The Stockholder expressly agrees that he has no\nexpectations or understandings contrary to the Agreement and no usage of trade or regular practice in the industry shall be used to modify this\nAgreement. The Stockholder acknowledges that this Agreement constitutes the entire agreement between the Stockholder and the Company with\nrespect to the subject matter hereof and this Agreement supersedes any and all prior or contemporaneous written or oral agreements, representations,\nor any other documents or understandings; provided, however, that nothing herein supersedes the Stockholder Agreement of even date herewith to\nwhich the Stockholder is a party.\n \n7.10 Effect. This Agreement shall be effective from and after the date first written above upon execution and delivery by the\nParties; provided, however, that if the Merger is not consummated and the Merger Agreement is terminated, this Agreement shall automatically\nterminate concurrently with the termination of the Merger Agreement and shall be of no further force or effect.\n \n[signature page follows]\n_7-\nIN WITNESS WHEREOF, the Parties have executed this Non-Competition, Non-Solicitation and Confidentiality Agreement as of the date\nfirst set forth above.\nSKYWORKS SOLUTIONS, INC.\nBy:  /s/David J. Aldrich\nName: David J. Aldrich\nTitle: President and CEO\nSIGNATURE PAGE TO NON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nIN WITNESS WHEREOF, the Parties have executed this Non-Competition, Non-Solicitation and Confidentiality Agreement as of the date\nfirst set forth above.\nSTOCKHOLDER\nBy: /s/ Richard K. Williams\nSIGNATURE PAGE TO NON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT	EX-10.2 4 dex102.htm NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT\nExhibit 10.2\nEXECUTION COPY\nNON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY\nAGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (the "Agreement"), dated as of\nMay 26, 2011, is made by and between Skyworks Solutions, Inc., a Delaware corporation ("Buyer"), and Richard K. Williams, an individual residing\nin\nthe State of California (the "Stockholder") The Buyer and the Stockholder are each referred to in this Agreement as a "Party." and collectively as\nthe "Parties."\nRECITALS\nA. The Buyer, PowerCo Acquisition Corp., a Delaware corporation (the "Merger Sub"), and Advanced Analogic Technologies, Inc., a\nDelaware corporation (the "Company.") have entered into an Agreement and Plan of Merger, dated as of May 26, 2011 (the "Merger Agreement"),\npursuant to which the Buyer will acquire the Company through a merger of Merger Sub with and into the Company. After giving effect to the\nMerger, the Company will be a wholly-owned subsidiary of the Buyer (the "Merger").\nB. The Company is engaged, either directly or through subsidiaries, in the business of developing, designing, manufacturing, licensing,\nmarketing, selling and distributing power management semiconductors and related software (the "Business"). (For the purpose of clarity: The\nCompany does not engage in business, applications or software unrelated to power management semiconductors (such as microprocessors, digital\nmemory, discrete sensors and biotech). It also does not engage in devices and circuits used in motor drive.)\nC. The parties acknowledge that the relevant market for the Business is worldwide in scope and that intense worldwide competition\nexists for the products and services of the Business.\nD. The Stockholder has a substantial equity interest in the Company and will receive significant cash and stock proceeds and other\nvaluable consideration as a result of the Merger. The Stockholder is a member of the Company's board of directors, an executive officer of the\nCompany and one of the Company's key employees, and acknowledges that he has detailed knowledge of competitively sensitive and important\nConfidential Information and trade secrets of the Company, including information regarding the Company's plans and relationships with customers,\nsuppliers and others. The Stockholder recognizes the Buyer's interest, as a purchaser of the Company, in protecting, among other things, the\nrelationships that the Company and its subsidiaries have with customers and suppliers and the goodwill associated with their ongoing business.\nE. The Parties agree that it is their mutual desire that the entire goodwill of the Company and its business be transferred to the Buyer\nas\npart of the Merger, and they acknowledge that they explicitly considered the value of the goodwill to be transferred in the Merger, and that such\ngoodwill was valued as a component of the consideration to be paid by the Buyer in and for the Merger. The Parties further agree that the Buyer's\nfailure to receive the entire goodwill contemplated by the Merger would have affected the Buyer's willingness to enter into the Merger Agreement or\nreduced the value of the Merger and the Company to the Buyer and the price the Buyer was willing to pay to acquire the Company.\nEXECUTION COPY\nF. The Stockholder acknowledges and agrees that it is his intention to transfer the goodwill reflected in the capital stock of the Company\nthat he owns and that the Stockholder has a material economic interest in the consummation of the Merger. The Stockholder has considered the\neffects of this Agreement, considers them reasonable and, in order to induce the Buyer to enter into the Merger Agreement and consummate the\nMerger, the Stockholder has agreed to enter into and be bound by this Agreement.\nAccordingly, the Parties are executing and delivering this Agreement contemporaneously with the execution and delivery of the Merger\nAgreement, and that the continued effectiveness of this Agreement is a condition to the Buyer's obligations to consummate the Merger.\nNOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements set forth herein, and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, the Buyer and the Stockholder, for themselves and their\nsuccessors and assigns, and intending to be legally bound, hereby agree as follows:\nAGREEMENTS\n1. Definitions. As used in this Agreement, the following terms shall have the following respective meanings.\n(a) "Affiliate" of a Person means any other Person that directly or indirectly through one or more intermediaries, controls, is\ncontrolled by or is under common control with the first Person. For purposes of this definition, "control" of a Person shall mean the possession,\ndirectly\nor\nindirectly, of the power to direct or cause the direction of the management policies of a Person, whether through the ownership of voting\nsecurities, (including, but not limited to, the ownership of ten percent (10%) or more of the voting securities of the Person), by contract, as trustee or\nexecutor or otherwise.\n(b) "Company Customer" means (i) any Person to whom or which the Company or any of its subsidiaries is currently selling\nproducts or providing services or with whom or which the Company or any of its subsidiaries currently has a signed agreement to sell products or\nprovide\nservices, (ii) any Person to whom or which the Company or any of its subsidiaries sold products, provided services or signed an agreement\nto sell products or provide services during the twenty-four (24) month period immediately preceding the Effective Time, (iii) any Person to whom\nor\nwhich the Company or any of its subsidiaries has contacted, solicited or provided a proposal for services, or any Person who has contacted or\nsolicited the Company or any of its subsidiaries regarding products or services of the Company or any of its subsidiaries, during the twenty-four\n(24) month period immediately preceding the Effective Time, (iv) any Person whom the Stockholder knows or has reason to know the Company\nor\nany of its subsidiaries currently plans to solicit as a client for its products or services, or future products or services, or (v) any Affiliate of any Person\ndescribed in clauses (i) through (iv) above.\n-2-\nEXECUTION COPY\n(c) "Confidential Information" means any and all confidential and proprietary information pertaining to the Company or any of\nits subsidiaries, such as proposals, plans, inventions, practices, systems, programs, subscriptions, strategies, formulas, processes, methods,\ntechniques, research, records, suppliers, sources, customer lists, billing information, other forms of business information, and trade secrets of every\nkind and character, whether or not they constitute a trade secret under applicable law. The term Confidential Information shall not include any\ninformation in the public domain or information that is rightfully in the possession of a third party and is not subject to a confidentiality obligation,\nprovided that such information has not entered the public domain or come into possession of a third party due to the violation of any contractual,\nfiduciary or other legal obligation of the Stockholder or any other person or entity.\n(d) "Person" means an individual, corporation, limited liability company, partnership, limited partnership, association, estate,\ntrust, unincorporated organization, governmental entity or authority (including, but not limited to, any municipal, county or state entity, board,\nauthority, agency or similar organization), or any other entity or organization.\n(e) "Restricted Period" means the period from and after the date hereof and continuing until the twenty-four (24) month\nanniversary of the Effective Time (as such term is defined in the Merger Agreement) of the Merger.\n2. Non-Competition. As an inducement for the Buyer to enter into the Merger Agreement and to consummate the Merger, and in\nconnection with the sale of the Stockholder's equity interest in the Company pursuant to the Merger, the Stockholder agrees that during the\nRestricted Period, the Stockholder shall not, anywhere in the world, directly or indirectly engage, without the express prior written consent of the\nBuyer after the date hereof, in any business or activity in competition with the Business, whether as an employee, consultant, partner, principal,\nagent, representative, equity holder or in any other individual, corporate or representative capacity (without limitation by specific enumeration of the\nforegoing), or render any services or provide any advice to any Person in competition (or seeking to compete, directly or indirectly) with the\nBusiness (a "Competing Business"). Nothing in this Section 2 shall prohibit the Stockholder from (i) acquiring up to two percent (2%) of any class\nof outstanding equity security of any competing business whose equity securities are regularly traded on a national securities exchange or The\nNasdaq Market, (ii) making or holding a passive investment in a venture fund, angel fund, or similar investment vehicle that invests in a competing\nbusiness representing less than two percent (2%) of the total investment of such venture fund, angel fund, or similar investment or (iii) making or\nholding a passive investment in a private company engaged in a competing business representing less than two percent (2%) of the total investment\nof such private company; provided, that if the Stockholder is then an employee of the Buyer, the Company or any of their respective subsidiaries,\nsuch\ninvestment shall be permitted only if (i) such investment does not interfere with the Stockholder's duties and obligations to the Buyer, the\nCompany and their respective subsidiaries, as determined in good faith by the Board of Directors of the Company (prior to the Effective Time) or the\nBuyer (following the Effective Time) in its sole discretion and (ii) such shares shall not constitute more than five percent (5%) of the Stockholder's\nnet worth.\n-3-\nEXECUTION COPY\n3. Non-Solicitation of Employees. During the Restricted Period:\n(a) The Stockholder shall not directly or indirectly solicit (or assist, participate in or promote the solicitation of) any individual\nwho is then employed by the Buyer, the Company or any of their respective direct or indirect subsidiaries to leave such employment. The Parties\nhereto agree that the placing of general advertisements in newspapers, magazines or electronic media, or other communication targeted to a\ngeneralized audience, in either case which are not specifically aimed at the Buyer, the Company, or any of their respective direct or indirect\nsubsidiaries shall not, in itself, constitute a breach of this Section 3.\n(b) The Stockholder shall not disclose any intent that he may form to terminate his employment with the Buyer, the Company or\nany of their respective direct or indirect subsidiaries to any employee of the Buyer, the Company or any of their respective subsidiaries prior to the\nearliest to occur of either the date on which such employment terminates or the date on which the Buyer or the Company provides notice to\nemployees generally of such termination.\n(c) If a former employee of the Company or any of its subsidiaries contacts the Stockholder about (i) any business matter\ninvolving the Buyer, the Company or any of their respective subsidiaries, or (ii) any matter involving the former employee's new business\n(including, but not limited to, prospective employment with such new business), the Stockholder shall inform the former employee that he cannot\ndiscuss the matter further.\n4. Non-Solicitation of Company. Customers. During the Restricted Period:\n(a) The Stockholder shall not directly or indirectly solicit, divert or take away, or assist in or attempt to solicit, divert or take\naway, the business or patronage of any Company Customer.\n(b) If a Company Customer contacts the Stockholder concerning the possibility of a discontinuation or reduction of the Company\nCustomer's business with the Buyer, the Company or any of their respective subsidiaries, the Stockholder shall inform such Company Customer that\nhe cannot discuss the matter further without informing the Buyer and the Company.\n(c) The Stockholder shall not disclose any intent that he may form to terminate his employment with the Buyer, the Company or\nany of their respective subsidiaries to any Company Customer prior to the termination of such employment or the date, if earlier, on which the Buyer\nor the Company publicly discloses such termination.\n5. Confidentiality..\n(a) The Stockholder acknowledges that Confidential Information has been and will continue to be of central importance to the\nbusiness of the Company and its subsidiaries and that disclosure of it to or its use by others could cause substantial loss to the Company and its\nsubsidiaries and, following the Effective Time, to the Buyer and its subsidiaries. Accordingly, from and after the date of this Agreement, the\nStockholder shall maintain the confidentiality of all Confidential Information and shall not use or disclose any\n-4-\nEXECUTION COPY\nConfidential Information to any Person, for any reason or purpose, except (i) as reasonably required to perform his duties to the Company and its\nsubsidiaries as a director, officer and/or employee thereof (or his duties to the Buyer and its subsidiaries, as the case may be, following the Effective\nTime), and for their sole benefit, or (ii) as required by law as described in Section 5(c) below.\n(b) The obligations contained in Section 5(a) shall not apply to any information which has: (i) become publicly known and\nmade\ngenerally available through no wrongful act of the Stockholder or of others who were under confidentiality obligations as to the item or items\ninvolved, or (ii) been independently acquired or developed by the Stockholder outside the scope of his duties at the Company and its subsidiaries or\nany predecessor of the Company.\n(c) If the Stockholder becomes legally obligated (by deposition, interrogatory, request for documents, subpoena, civil\ninvestigation, demand or similar process) to disclose any Confidential Information, the Stockholder shall provide the Buyer and the Company with\nprompt written notice of such requirement so that the Buyer or the Company, as the case may be, may seek a protective order or other appropriate\nrelief. If a protective order or other remedy is not obtained by the Buyer or the Company, the Stockholder may furnish only that portion of\nConfidential Information which is required pursuant to the legal process, and (at the Buyer's or the Company's expense, as the case may be) shall\nexercise reasonable efforts to obtain reliable assurances that confidential treatment will be accorded such Confidential Information. If either during\nor\nafter his employment with the Buyer, the Company or any of their respective subsidiaries, the Stockholder receives a subpoena or other inquiry\nrelated to a regulatory, civil or criminal proceeding concerning any matter which may involve the Buyer, the Company or any of their respective\nsubsidiaries, whether or not such matter could result in the Stockholder having to disclose any Confidential Information, the Stockholder shall give\nprompt notice to the Buyer or the Company, as the case may be, of the subpoena or inquiry and the matter covered thereby and any information\nwhich the Stockholder is required to produce in connection therewith.\n6. Equitable Remedies. The Buyer and the Stockholder confirm that the restrictions contained in this Agreement are, in view of the\nnature of the business of the Company, reasonable and necessary to protect the legitimate interests of the Buyer and that any breach of any material\nprovision in this Agreement will result in irreparable injury to the Buyer. Therefore, the Stockholder hereby agrees that, in the event of any breach or\nthreatened breach of any material term or condition of this Agreement by the Stockholder, the Buyer's remedies at law will be inadequate and, in any\nsuch event, the Buyer shall be entitled to commence an action for preliminary and permanent injunctive relief and other equitable and monetary\nrelief (including attorneys' fees) in any court of competent jurisdiction, and that if such relief is granted the Buyer shall not be required to post any\nbond.\n7. Miscellaneous.\n7.1 Governing Law. This Agreement shall be interpreted and enforced pursuant to the laws of the State of California, without\ngiving any effect to the conflict of laws rules or principles of any jurisdiction\n-5-\nEXECUTION COPY\n7.2 Dispute Resolution; Waiver of Jury Trial.\n(a) All disputes, claims or controversies arising out of or in connection with this Agreement shall be subject to the jurisdiction of\nthe courts of the State of California located in Santa Clara County, California and the United States District Court for the Northern District of\nCalifornia, and each of the Company and the Stockholder hereby waives any objection to the laying of venue in any such court. Notwithstanding the\nprevious sentence and provided both Parties consent, the Parties may, at any time after the inception of a dispute, claim or controversy arising out of\nor in connection with this Agreement, submit such dispute, claim or controversy to binding arbitration under the rules of the American Arbitration\nAssociation in effect at the inception of such dispute, claim or controversy. The Parties shall cooperate fully with each other so that any such dispute,\nclaim or controversy submitted to binding arbitration pursuant to this Section 7.2 may be resolved as expeditiously as possible.\n(b) The prevailing Party in a proceeding commenced with respect to any dispute, claim or controversy arising out of or in\nconnection with this Agreement shall be entitled to recover, in addition to any other relief awarded, its reasonable costs and expenses, including\nattorneys' and expert witness fees and disbursements, of preparing for and participating in any such proceeding.\n(c) The Buyer and the Stockholder each hereby waives the right to trial by jury in all proceedings commenced with respect to any\ndisputes, claims or controversies arising out of or in connection with this Agreement.\n(d) STOCKHOLDER HAS READ AND UNDERSTANDS THIS SECTION 7.2 WHICH DISCUSSES THE WAIVER OF\nSTOCKHOLDER'S RIGHT TO A JURY TRIAL. STOCKHOLDER UNDERSTANDS THAT BY SIGNING THIS AGREEMENT,\nSTOCKHOLDER IS WAIVING HIS RIGHT TO A JURY TRIAL IN ALL DISPUTES, CLAIMS OR CONTROVERSIES RELATING TO ANY\nASPECT OF THIS AGREEMENT.\n7.3 Amendments. This Agreement may not be changed, amended or modified orally. This Agreement may be changed, amended\nor modified only by an agreement in writing signed by the Party against whom enforcement of any such waiver, change, amendment, modification or\ndischarge may be sought.\n7.4 Assignment. This Agreement shall be binding upon and inure to the benefit of the executors, administrators, heirs, successors,\nand assigns of the Parties; provided, however, that this Agreement shall not be assignable by the Stockholder. The Stockholder agrees that, upon\nrequest therefor, he will, in writing, acknowledge and consent to any such assignment of this Agreement.\n7.5 Waiver. Failure or delay on the part of either Party hereto to enforce any right, power or privilege hereunder shall not be\ndeemed to constitute a waiver thereof. A waiver by one Party of a breach of any promise by the other Party contained herein shall not operate as or\nbe construed to constitute a waiver of any subsequent breach of such promise by such other Party.\n-6-\nEXECUTION COPY\n7.6 Headings. The headings of the sections and paragraphs contained in this Agreement are for reference purposes only and shall\nnot in any way affect the meaning or interpretation of any provision of this Agreement.\n7.7 Construction. The language used in this Agreement shall be deemed to be the language chosen by the Parties hereto to\nexpress their mutual intent, and no rule of strict construction, for or against either Party, shall be applied. Capitalized terms used in this Agreement\nwithout definition shall have the respective meaning ascribed to them in the Merger Agreement.\n7.8 Counterparts. This Agreement may be executed in counterparts, none of which need contain the signature of more than\none\nParty hereto, each of which shall be deemed to be an original, and all of which together shall constitute a single agreement.\n7.9 Acknowledgement. The Stockholder represents and warrants that (a) he has carefully read and fully understands the terms of\nthis Agreement; (b) he has signed it voluntarily and with full knowledge of its contents, its legal consequences, and the rights and obligations of the\nParties; and (c) that the Stockholder has been advised to and has had a reasonable opportunity to review this Agreement and consult with the attorney\nor other personal counsel of the Stockholder's choosing before entering into this Agreement. The Stockholder expressly agrees that he has no\nexpectations or understandings contrary to the Agreement and no usage of trade or regular practice in the industry shall be used to modify this\nAgreement. The Stockholder acknowledges that this Agreement constitutes the entire agreement between the Stockholder and the Company with\nrespect to the subject matter hereof and this Agreement supersedes any and all prior or contemporaneous written or oral agreements, representations,\nor any other documents or understandings; provided, however, that nothing herein supersedes the Stockholder Agreement of even date herewith to\nwhich the Stockholder is a party.\n7.10 Effect. This Agreement shall be effective from and after the date first written above upon execution and delivery by the\nParties; provided, however, that if the Merger is not consummated and the Merger Agreement is terminated, this Agreement shall automatically\nterminate concurrently with the termination of the Merger Agreement and shall be of no further force or effect.\n[signature page follows]\n-7-\nIN WITNESS WHEREOF, the Parties have executed this Non-Competition, Non-Solicitation and Confidentiality Agreement as of the date\nfirst set forth above.\nSKYWORKS SOLUTIONS, INC.\nBy: /s/ David J. Aldrich\nName: David J. Aldrich\nTitle: President and CEO\nSIGNATURE PAGE TO NON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nIN WITNESS WHEREOF, the Parties have executed this Non-Competition, Non-Solicitation and Confidentiality Agreement as of the date\nfirst set forth above.\nSTOCKHOLDER\nBy: /s/ Richard K. Williams\nSIGNATURE PAGE TO NON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT	EX-10.2 4 dex102.htm NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT\nExhibit 10.2\nEXECUTION COPY\nNON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY\nAGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (the “Agreement”), dated as of\nMay 26, 2011, is made by and between Skyworks Solutions, Inc., a Delaware corporation (“Buyer”), and Richard K. Williams, an individual residing\nin the State of California (the “Stockholder”). The Buyer and the Stockholder are each referred to in this Agreement as a “Party” and collectively as\nthe “Parties.”\nRECITALS\nA. The Buyer, PowerCo Acquisition Corp., a Delaware corporation (the “Merger Sub”), and Advanced Analogic Technologies, Inc., a\nDelaware corporation (the “Company”) have entered into an Agreement and Plan of Merger, dated as of May 26, 2011 (the “Merger Agreement”),\npursuant to which the Buyer will acquire the Company through a merger of Merger Sub with and into the Company. After giving effect to the\nMerger, the Company will be a wholly-owned subsidiary of the Buyer (the “Merger”).\nB. The Company is engaged, either directly or through subsidiaries, in the business of developing, designing, manufacturing, licensing,\nmarketing, selling and distributing power management semiconductors and related software (the “Business”). (For the purpose of clarity: The\nCompany does not engage in business, applications or software unrelated to power management semiconductors (such as microprocessors, digital\nmemory, discrete sensors and biotech). It also does not engage in devices and circuits used in motor drive.)\nC. The parties acknowledge that the relevant market for the Business is worldwide in scope and that intense worldwide competition\nexists for the products and services of the Business.\nD. The Stockholder has a substantial equity interest in the Company and will receive significant cash and stock proceeds and other\nvaluable consideration as a result of the Merger. The Stockholder is a member of the Company’s board of directors, an executive officer of the\nCompany and one of the Company’s key employees, and acknowledges that he has detailed knowledge of competitively sensitive and important\nConfidential Information and trade secrets of the Company, including information regarding the Company’s plans and relationships with customers,\nsuppliers and others. The Stockholder recognizes the Buyer’s interest, as a purchaser of the Company, in protecting, among other things, the\nrelationships that the Company and its subsidiaries have with customers and suppliers and the goodwill associated with their ongoing business.\nE. The Parties agree that it is their mutual desire that the entire goodwill of the Company and its business be transferred to the Buyer as\npart of the Merger, and they acknowledge that they explicitly considered the value of the goodwill to be transferred in the Merger, and that such\ngoodwill was valued as a component of the consideration to be paid by the Buyer in and for the Merger. The Parties further agree that the Buyer’s\nfailure to receive the entire goodwill contemplated by the Merger would have affected the Buyer’s willingness to enter into the Merger Agreement or\nreduced the value of the Merger and the Company to the Buyer and the price the Buyer was willing to pay to acquire the Company.\nEXECUTION COPY\nF. The Stockholder acknowledges and agrees that it is his intention to transfer the goodwill reflected in the capital stock of the Company\nthat he owns and that the Stockholder has a material economic interest in the consummation of the Merger. The Stockholder has considered the\neffects of this Agreement, considers them reasonable and, in order to induce the Buyer to enter into the Merger Agreement and consummate the\nMerger, the Stockholder has agreed to enter into and be bound by this Agreement.\nAccordingly, the Parties are executing and delivering this Agreement contemporaneously with the execution and delivery of the Merger\nAgreement, and that the continued effectiveness of this Agreement is a condition to the Buyer’s obligations to consummate the Merger.\nNOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements set forth herein, and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, the Buyer and the Stockholder, for themselves and their\nsuccessors and assigns, and intending to be legally bound, hereby agree as follows:\nAGREEMENTS\n1. Definitions. As used in this Agreement, the following terms shall have the following respective meanings.\n(a) “Affiliate” of a Person means any other Person that directly or indirectly through one or more intermediaries, controls, is\ncontrolled by or is under common control with the first Person. For purposes of this definition, “control” of a Person shall mean the possession,\ndirectly or indirectly, of the power to direct or cause the direction of the management policies of a Person, whether through the ownership of voting\nsecurities, (including, but not limited to, the ownership of ten percent (10%) or more of the voting securities of the Person), by contract, as trustee or\nexecutor or otherwise.\n(b) “Company Customer” means (i) any Person to whom or which the Company or any of its subsidiaries is currently selling\nproducts or providing services or with whom or which the Company or any of its subsidiaries currently has a signed agreement to sell products or\nprovide services, (ii) any Person to whom or which the Company or any of its subsidiaries sold products, provided services or signed an agreement\nto sell products or provide services during the twenty-four (24) month period immediately preceding the Effective Time, (iii) any Person to whom or\nwhich the Company or any of its subsidiaries has contacted, solicited or provided a proposal for services, or any Person who has contacted or\nsolicited the Company or any of its subsidiaries regarding products or services of the Company or any of its subsidiaries, during the twenty-four\n(24) month period immediately preceding the Effective Time, (iv) any Person whom the Stockholder knows or has reason to know the Company or\nany of its subsidiaries currently plans to solicit as a client for its products or services, or future products or services, or (v) any Affiliate of any Person\ndescribed in clauses (i) through (iv) above.\n-2-\nEXECUTION COPY\n(c) “Confidential Information” means any and all confidential and proprietary information pertaining to the Company or any of\nits subsidiaries, such as proposals, plans, inventions, practices, systems, programs, subscriptions, strategies, formulas, processes, methods,\ntechniques, research, records, suppliers, sources, customer lists, billing information, other forms of business information, and trade secrets of every\nkind and character, whether or not they constitute a trade secret under applicable law. The term Confidential Information shall not include any\ninformation in the public domain or information that is rightfully in the possession of a third party and is not subject to a confidentiality obligation,\nprovided that such information has not entered the public domain or come into possession of a third party due to the violation of any contractual,\nfiduciary or other legal obligation of the Stockholder or any other person or entity.\n(d) “Person” means an individual, corporation, limited liability company, partnership, limited partnership, association, estate,\ntrust, unincorporated organization, governmental entity or authority (including, but not limited to, any municipal, county or state entity, board,\nauthority, agency or similar organization), or any other entity or organization.\n(e) “Restricted Period” means the period from and after the date hereof and continuing until the twenty-four (24) month\nanniversary of the Effective Time (as such term is defined in the Merger Agreement) of the Merger.\n2. Non-Competition. As an inducement for the Buyer to enter into the Merger Agreement and to consummate the Merger, and in\nconnection with the sale of the Stockholder’s equity interest in the Company pursuant to the Merger, the Stockholder agrees that during the\nRestricted Period, the Stockholder shall not, anywhere in the world, directly or indirectly engage, without the express prior written consent of the\nBuyer after the date hereof, in any business or activity in competition with the Business, whether as an employee, consultant, partner, principal,\nagent, representative, equity holder or in any other individual, corporate or representative capacity (without limitation by specific enumeration of the\nforegoing), or render any services or provide any advice to any Person in competition (or seeking to compete, directly or indirectly) with the\nBusiness (a “Competing Business”). Nothing in this Section 2 shall prohibit the Stockholder from (i) acquiring up to two percent (2%) of any class\nof outstanding equity security of any competing business whose equity securities are regularly traded on a national securities exchange or The\nNasdaq Market, (ii) making or holding a passive investment in a venture fund, angel fund, or similar investment vehicle that invests in a competing\nbusiness representing less than two percent (2%) of the total investment of such venture fund, angel fund, or similar investment or (iii) making or\nholding a passive investment in a private company engaged in a competing business representing less than two percent (2%) of the total investment\nof such private company; provided, that if the Stockholder is then an employee of the Buyer, the Company or any of their respective subsidiaries,\nsuch investment shall be permitted only if (i) such investment does not interfere with the Stockholder’s duties and obligations to the Buyer, the\nCompany and their respective subsidiaries, as determined in good faith by the Board of Directors of the Company (prior to the Effective Time) or the\nBuyer (following the Effective Time) in its sole discretion and (ii) such shares shall not constitute more than five percent (5%) of the Stockholder’s\nnet worth.\n-3-\nEXECUTION COPY\n3. Non-Solicitation of Employees. During the Restricted Period:\n(a) The Stockholder shall not directly or indirectly solicit (or assist, participate in or promote the solicitation of) any individual\nwho is then employed by the Buyer, the Company or any of their respective direct or indirect subsidiaries to leave such employment. The Parties\nhereto agree that the placing of general advertisements in newspapers, magazines or electronic media, or other communication targeted to a\ngeneralized audience, in either case which are not specifically aimed at the Buyer, the Company, or any of their respective direct or indirect\nsubsidiaries shall not, in itself, constitute a breach of this Section 3.\n(b) The Stockholder shall not disclose any intent that he may form to terminate his employment with the Buyer, the Company or\nany of their respective direct or indirect subsidiaries to any employee of the Buyer, the Company or any of their respective subsidiaries prior to the\nearliest to occur of either the date on which such employment terminates or the date on which the Buyer or the Company provides notice to\nemployees generally of such termination.\n(c) If a former employee of the Company or any of its subsidiaries contacts the Stockholder about (i) any business matter\ninvolving the Buyer, the Company or any of their respective subsidiaries, or (ii) any matter involving the former employee’s new business\n(including, but not limited to, prospective employment with such new business), the Stockholder shall inform the former employee that he cannot\ndiscuss the matter further.\n4. Non-Solicitation of Company Customers. During the Restricted Period:\n(a) The Stockholder shall not directly or indirectly solicit, divert or take away, or assist in or attempt to solicit, divert or take\naway, the business or patronage of any Company Customer.\n(b) If a Company Customer contacts the Stockholder concerning the possibility of a discontinuation or reduction of the Company\nCustomer’s business with the Buyer, the Company or any of their respective subsidiaries, the Stockholder shall inform such Company Customer that\nhe cannot discuss the matter further without informing the Buyer and the Company.\n(c) The Stockholder shall not disclose any intent that he may form to terminate his employment with the Buyer, the Company or\nany of their respective subsidiaries to any Company Customer prior to the termination of such employment or the date, if earlier, on which the Buyer\nor the Company publicly discloses such termination.\n5. Confidentiality.\n(a) The Stockholder acknowledges that Confidential Information has been and will continue to be of central importance to the\nbusiness of the Company and its subsidiaries and that disclosure of it to or its use by others could cause substantial loss to the Company and its\nsubsidiaries and, following the Effective Time, to the Buyer and its subsidiaries. Accordingly, from and after the date of this Agreement, the\nStockholder shall maintain the confidentiality of all Confidential Information and shall not use or disclose any\n-4-\nEXECUTION COPY\nConfidential Information to any Person, for any reason or purpose, except (i) as reasonably required to perform his duties to the Company and its\nsubsidiaries as a director, officer and/or employee thereof (or his duties to the Buyer and its subsidiaries, as the case may be, following the Effective\nTime), and for their sole benefit, or (ii) as required by law as described in Section 5(c) below.\n(b) The obligations contained in Section 5(a) shall not apply to any information which has: (i) become publicly known and made\ngenerally available through no wrongful act of the Stockholder or of others who were under confidentiality obligations as to the item or items\ninvolved, or (ii) been independently acquired or developed by the Stockholder outside the scope of his duties at the Company and its subsidiaries or\nany predecessor of the Company.\n(c) If the Stockholder becomes legally obligated (by deposition, interrogatory, request for documents, subpoena, civil\ninvestigation, demand or similar process) to disclose any Confidential Information, the Stockholder shall provide the Buyer and the Company with\nprompt written notice of such requirement so that the Buyer or the Company, as the case may be, may seek a protective order or other appropriate\nrelief. If a protective order or other remedy is not obtained by the Buyer or the Company, the Stockholder may furnish only that portion of\nConfidential Information which is required pursuant to the legal process, and (at the Buyer’s or the Company’s expense, as the case may be) shall\nexercise reasonable efforts to obtain reliable assurances that confidential treatment will be accorded such Confidential Information. If either during\nor after his employment with the Buyer, the Company or any of their respective subsidiaries, the Stockholder receives a subpoena or other inquiry\nrelated to a regulatory, civil or criminal proceeding concerning any matter which may involve the Buyer, the Company or any of their respective\nsubsidiaries, whether or not such matter could result in the Stockholder having to disclose any Confidential Information, the Stockholder shall give\nprompt notice to the Buyer or the Company, as the case may be, of the subpoena or inquiry and the matter covered thereby and any information\nwhich the Stockholder is required to produce in connection therewith.\n6. Equitable Remedies. The Buyer and the Stockholder confirm that the restrictions contained in this Agreement are, in view of the\nnature of the business of the Company, reasonable and necessary to protect the legitimate interests of the Buyer and that any breach of any material\nprovision in this Agreement will result in irreparable injury to the Buyer. Therefore, the Stockholder hereby agrees that, in the event of any breach or\nthreatened breach of any material term or condition of this Agreement by the Stockholder, the Buyer’s remedies at law will be inadequate and, in any\nsuch event, the Buyer shall be entitled to commence an action for preliminary and permanent injunctive relief and other equitable and monetary\nrelief (including attorneys’ fees) in any court of competent jurisdiction, and that if such relief is granted the Buyer shall not be required to post any\nbond.\n7. Miscellaneous.\n7.1 Governing Law. This Agreement shall be interpreted and enforced pursuant to the laws of the State of California, without\ngiving any effect to the conflict of laws rules or principles of any jurisdiction.\n-5-\nEXECUTION COPY\n7.2 Dispute Resolution; Waiver of Jury Trial.\n(a) All disputes, claims or controversies arising out of or in connection with this Agreement shall be subject to the jurisdiction of\nthe courts of the State of California located in Santa Clara County, California and the United States District Court for the Northern District of\nCalifornia, and each of the Company and the Stockholder hereby waives any objection to the laying of venue in any such court. Notwithstanding the\nprevious sentence and provided both Parties consent, the Parties may, at any time after the inception of a dispute, claim or controversy arising out of\nor in connection with this Agreement, submit such dispute, claim or controversy to binding arbitration under the rules of the American Arbitration\nAssociation in effect at the inception of such dispute, claim or controversy. The Parties shall cooperate fully with each other so that any such dispute,\nclaim or controversy submitted to binding arbitration pursuant to this Section 7.2 may be resolved as expeditiously as possible.\n(b) The prevailing Party in a proceeding commenced with respect to any dispute, claim or controversy arising out of or in\nconnection with this Agreement shall be entitled to recover, in addition to any other relief awarded, its reasonable costs and expenses, including\nattorneys’ and expert witness fees and disbursements, of preparing for and participating in any such proceeding.\n(c) The Buyer and the Stockholder each hereby waives the right to trial by jury in all proceedings commenced with respect to any\ndisputes, claims or controversies arising out of or in connection with this Agreement.\n(d) STOCKHOLDER HAS READ AND UNDERSTANDS THIS SECTION 7.2 WHICH DISCUSSES THE WAIVER OF\nSTOCKHOLDER’S RIGHT TO A JURY TRIAL. STOCKHOLDER UNDERSTANDS THAT BY SIGNING THIS AGREEMENT,\nSTOCKHOLDER IS WAIVING HIS RIGHT TO A JURY TRIAL IN ALL DISPUTES, CLAIMS OR CONTROVERSIES RELATING TO ANY\nASPECT OF THIS AGREEMENT.\n7.3 Amendments. This Agreement may not be changed, amended or modified orally. This Agreement may be changed, amended\nor modified only by an agreement in writing signed by the Party against whom enforcement of any such waiver, change, amendment, modification or\ndischarge may be sought.\n7.4 Assignment. This Agreement shall be binding upon and inure to the benefit of the executors, administrators, heirs, successors,\nand assigns of the Parties; provided, however, that this Agreement shall not be assignable by the Stockholder. The Stockholder agrees that, upon\nrequest therefor, he will, in writing, acknowledge and consent to any such assignment of this Agreement.\n7.5 Waiver. Failure or delay on the part of either Party hereto to enforce any right, power or privilege hereunder shall not be\ndeemed to constitute a waiver thereof. A waiver by one Party of a breach of any promise by the other Party contained herein shall not operate as or\nbe construed to constitute a waiver of any subsequent breach of such promise by such other Party.\n-6-\nEXECUTION COPY\n7.6 Headings. The headings of the sections and paragraphs contained in this Agreement are for reference purposes only and shall\nnot in any way affect the meaning or interpretation of any provision of this Agreement.\n7.7 Construction. The language used in this Agreement shall be deemed to be the language chosen by the Parties hereto to\nexpress their mutual intent, and no rule of strict construction, for or against either Party, shall be applied. Capitalized terms used in this Agreement\nwithout definition shall have the respective meaning ascribed to them in the Merger Agreement.\n7.8 Counterparts. This Agreement may be executed in counterparts, none of which need contain the signature of more than one\nParty hereto, each of which shall be deemed to be an original, and all of which together shall constitute a single agreement.\n7.9 Acknowledgement. The Stockholder represents and warrants that (a) he has carefully read and fully understands the terms of\nthis Agreement; (b) he has signed it voluntarily and with full knowledge of its contents, its legal consequences, and the rights and obligations of the\nParties; and (c) that the Stockholder has been advised to and has had a reasonable opportunity to review this Agreement and consult with the attorney\nor other personal counsel of the Stockholder’s choosing before entering into this Agreement. The Stockholder expressly agrees that he has no\nexpectations or understandings contrary to the Agreement and no usage of trade or regular practice in the industry shall be used to modify this\nAgreement. The Stockholder acknowledges that this Agreement constitutes the entire agreement between the Stockholder and the Company with\nrespect to the subject matter hereof and this Agreement supersedes any and all prior or contemporaneous written or oral agreements, representations,\nor any other documents or understandings; provided, however, that nothing herein supersedes the Stockholder Agreement of even date herewith to\nwhich the Stockholder is a party.\n7.10 Effect. This Agreement shall be effective from and after the date first written above upon execution and delivery by the\nParties; provided, however, that if the Merger is not consummated and the Merger Agreement is terminated, this Agreement shall automatically\nterminate concurrently with the termination of the Merger Agreement and shall be of no further force or effect.\n[signature page follows]\n-7-\nIN WITNESS WHEREOF, the Parties have executed this Non-Competition, Non-Solicitation and Confidentiality Agreement as of the date\nfirst set forth above.\nSKYWORKS SOLUTIONS, INC.\nBy: /s/ David J. Aldrich\nName: David J. Aldrich\nTitle: President and CEO\nSIGNATURE PAGE TO NON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nIN WITNESS WHEREOF, the Parties have executed this Non-Competition, Non-Solicitation and Confidentiality Agreement as of the date\nfirst set forth above.\nSTOCKHOLDER\nBy: /s/ Richard K. Williams\nSIGNATURE PAGE TO NON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT
+e31676b3fba3d474985f08fef9bfaf03.pdf	effective_date jurisdiction party term	EXHIBIT B\nTO:\nTHE MICROSOFT OPERATIONS DIGITAL DISTRIBUTION AGREEMENT\nBETWEEN: MICROSOFT CORPORATION AND DIGITAL RIVER, INC.\nDATED:\nSeptember 1, 2006\nNAME\nNon-Disclosure Agreement\nMICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\n(STANDARD RECIPROCAL)\nThis Non-Disclosure Agreement (the “Agreement”) is made and entered into as of the later of the two signature dates below by and between\nMICROSOFT CORPORATION, a Washington corporation (“Microsoft”), and Digital River, Inc., a Delaware corporation (“Company”).\nIN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE MUTUAL\nDISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO AGREE AS FOLLOWS:\n1. Definition of Confidential Information and Exclusions.\n(a) “Confidential Information” means nonpublic information that a party to this Agreement (“Disclosing Party”) designates as being\nconfidential to the party that receives such information (“Receiving Party”) or which, under the circumstances surrounding disclosure ought to be\ntreated as confidential by the Receiving Party. “Confidential Information” includes, without limitation, information in tangible or intangible form\nrelating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing\nParty product, Disclosing Party’s business policies or practices, and information received from others that Disclosing Party is obligated to treat as\nconfidential. Except as otherwise indicated in this Agreement, the term Disclosing Party” also includes all Affiliates of the Disclosing Party and,\nexcept as otherwise indicated, the term “Receiving Party” also includes all Affiliates of the Receiving Party. And “Affiliate” means any person,\npartnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or\nindirectly, control, are controlled by, or are under common control with a party.\n(b) Confidential Information shall not include any information, however designated, that: (1) is or subsequently becomes publicly available\nwithout Receiving Party’s breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s\ndisclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source\nother than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed\nby Receiving Party.\n2. Obligations Regarding Confidential Information\n(a) Receiving Party shall:\n(i) Refrain from disclosing any Confidential Information of the Disclosing Party to third parties for five (5) years following the\ndate that Disclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in\nSections 2(b) and 2(c) of this Agreement,\n(ii) Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but\nno less than reasonable care, to keep confidential the Confidential Information of the Disclosing Party;\n(iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except\nin pursuance of Receiving Party’s business relationship with Disclosing Party, and only as otherwise provided hereunder; and\n(iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre- release hardware devices\ndisclosed by Disclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by\napplicable law.\n*\nConfidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to\nthe confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the\nSecurities and Exchange Commission.\n31\n(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order,\nprovided that Receiving Party either (i) gives the undersigned Disclosing Party reasonable notice prior to such disclosure to allow Disclosing\nParty a reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance from the applicable judicial or\ngovernmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation.\nNotwithstanding the foregoing, the Receiving Party shall not disclose any computer source code that contains Confidential Information of the\nDisclosing Party in accordance with a judicial or other governmental order unless it complies with the requirement set forth in sub-section (1) of\nthis Section 2(b).\n(c) The undersigned Receiving Party may disclose Confidential Information only to Receiving Party’s employees and consultants on a\nneed-to-know basis. The undersigned Receiving Party will have executed or shall execute appropriate written agreements with third parties\nsufficient to enable Receiving Party to enforce all the provisions of this Agreement\n(d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with\nDisclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n(e) Receiving Party shall, at Disclosing Party’s request, return all originals, copies, reproductions and summaries of Confidential\nInformation and all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party’s\noption, certify destruction of the same.\n3. Remedies\nThe parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and\nthat Disclosing Party shall be entitled, without waiving any other tights or remedies, to such injunctive or equitable relief as may be deemed\nproper by a court of competent jurisdiction.\n4. Miscellaneous\n(a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving\nParty, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade\nsecret information except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such\npatents, copyrights, trademarks, or trade secrets except as otherwise provided herein.\n(b) In the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential Information\nunder the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation and\nproviding Feedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and the\nReceiving Party, all such computer software and/or hardware is provided “AS IS” without warranty of any kind, and Receiving Party agrees that\nneither Disclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party’s use or inability\nto use such software and/or hardware.\n(c) The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii) any\nproduct (or any part thereof), process or service that is the direct product of the Confidential Information, including the U.S. Export\nAdministration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional\ninformation on exporting Microsoft products, see http://www.microsoft.com/exporting/.\n(d) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party’s right\nto independently develop or acquire products without use of the other party’s Confidential Information.\n(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified\nexcept by a written agreement dated subsequent to the date of this Agreement and signed by both parties. None of the provisions of this\nAgreement shall be deemed to have been waived by any act or acquiescence on the part of Disclosing Party, the Receiving Party, their agents, or\nemployees, but only by an instrument\n*\nConfidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to\nthe confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the\nSecurities and Exchange Commission.\n32\nin writing signed by an authorized employee of Disclosing Party and the Receiving Party. No waiver of any provision of this Agreement shall\nconstitute a waiver of any other provision(s) or of the same provision on another occasion.\n(f) If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the\nprevailing party shall be entitled to recover reasonable attorneys’ fees and costs. This Agreement shall be construed and controlled by the laws of\nthe State of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County,\nWashington, unless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the\nSuperior Court of King County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non conveniens. Process\nmay be served on either party in the manner authorized by applicable law or court rule.\n(g) This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns; provided,\nhowever, that neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole\nor in part, without the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.\n(h) If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining\nprovisions shall remain in full force and effect.\n(i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All sections\nof this Agreement relating to the rights and obligations of the parties concerning Confidential Information disclosed during the term of the\nAgreement shall survive any such termination.\nIN WITENSS WHEREOF, the parties hereto have executed this Agreement.\n*\nConfidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to\nthe confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the\nSecurities and Exchange Commission.\n33	EXHIBIT B\nTO: THE MICROSOFT OPERATIONS DIGITAL DISTRIBUTION AGREEMENT\nBETWEEN: MICROSOFT CORPORATION AND DIGITAL RIVER, INC.\nDATED: September 1, 2006\nNAME Non-Disclosure Agreement\nMICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\n(STANDARD RECIPROCAL)\nThis Non-Disclosure Agreement (the “Agreement”) is made and entered into as of the later of the two signature dates below by and between\nMICROSOFT CORPORATION, a Washington corporation (“Microsoft”), and Digital River, Inc., a Delaware corporation (“Company”).\nIN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE MUTUAL\nDISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO AGREE AS FOLLOWS:\n1. Definition of Confidential Information and Exclusions.\n(a) “Confidential Information” means nonpublic information that a party to this Agreement (“Disclosing Party”) designates as being\nconfidential to the party that receives such information (“Receiving Party”) or which, under the circumstances surrounding disclosure ought to be\ntreated as confidential by the Receiving Party. “Confidential Information” includes, without limitation, information in tangible or intangible form\nrelating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing\nParty product, Disclosing Party’s business policies or practices, and information received from others that Disclosing Party is obligated to treat as\nconfidential. Except as otherwise indicated in this Agreement, the term Disclosing Party” also includes all Affiliates of the Disclosing Party and,\nexcept as otherwise indicated, the term “Receiving Party” also includes all Affiliates of the Receiving Party. And “Affiliate” means any person,\npartnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or\nindirectly, control, are controlled by, or are under common control with a party.\n(b) Confidential Information shall not include any information, however designated, that: (1) is or subsequently becomes publicly available\nwithout Receiving Party’s breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s\ndisclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source\nother than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed\nby Receiving Party.\n2. Obligations Regarding Confidential Information\n(a) Receiving Party shall:\n(i) Refrain from disclosing any Confidential Information of the Disclosing Party to third parties for five (5) years following the\ndate that Disclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in\nSections 2(b) and 2(c) of this Agreement,\n(ii) Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but\nno less than reasonable care, to keep confidential the Confidential Information of the Disclosing Party;\n(iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except\nin pursuance of Receiving Party’s business relationship with Disclosing Party, and only as otherwise provided hereunder; and\n(iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre- release hardware devices\ndisclosed by Disclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by\napplicable law.\n*  Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to\nthe confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the\nSecurities and Exchange Commission.\n31\n(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order,\nprovided that Receiving Party either (i) gives the undersigned Disclosing Party reasonable notice prior to such disclosure to allow Disclosing\nParty a reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance from the applicable judicial or\ngovernmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation.\nNotwithstanding the foregoing, the Receiving Party shall not disclose any computer source code that contains Confidential Information of the\nDisclosing Party in accordance with a judicial or other governmental order unless it complies with the requirement set forth in sub-section (1) of\nthis Section 2(b).\n(c) The undersigned Receiving Party may disclose Confidential Information only to Receiving Party’s employees and consultants on a\nneed-to-know basis. The undersigned Receiving Party will have executed or shall execute appropriate written agreements with third parties\nsufficient to enable Receiving Party to enforce all the provisions of this Agreement\n(d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with\nDisclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n(e) Receiving Party shall, at Disclosing Party’s request, return all originals, copies, reproductions and summaries of Confidential\nInformation and all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party’s\noption, certify destruction of the same.\n3. Remedies\nThe parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and\nthat Disclosing Party shall be entitled, without waiving any other tights or remedies, to such injunctive or equitable relief as may be deemed\nproper by a court of competent jurisdiction.\n4, Miscellaneous\n(a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving\nParty, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade\nsecret information except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such\npatents, copyrights, trademarks, or trade secrets except as otherwise provided herein.\n(b) In the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential Information\nunder the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation and\nproviding Feedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and the\nReceiving Party, all such computer software and/or hardware is provided “AS IS” without warranty of any kind, and Receiving Party agrees that\nneither Disclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party’s use or inability\nto use such software and/or hardware.\n(c) The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii) any\nproduct (or any part thereof), process or service that is the direct product of the Confidential Information, including the U.S. Export\nAdministration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional\ninformation on exporting Microsoft products, see http://www.microsoft.com/exporting/.\n(d) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party’s right\nto independently develop or acquire products without use of the other party’s Confidential Information.\n(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified\nexcept by a written agreement dated subsequent to the date of this Agreement and signed by both parties. None of the provisions of this\nAgreement shall be deemed to have been waived by any act or acquiescence on the part of Disclosing Party, the Receiving Party, their agents, or\nemployees, but only by an instrument\n*  Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to\nthe confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the\nSecurities and Exchange Commission.\n32\nin writing signed by an authorized employee of Disclosing Party and the Receiving Party. No waiver of any provision of this Agreement shall\nconstitute a waiver of any other provision(s) or of the same provision on another occasion.\n(f) If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the\nprevailing party shall be entitled to recover reasonable attorneys’ fees and costs. This Agreement shall be construed and controlled by the laws of\nthe State of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County,\nWashington, unless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the\nSuperior Court of King County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non conveniens. Process\nmay be served on either party in the manner authorized by applicable law or court rule.\n(g) This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns; provided,\nhowever, that neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole\nor in part, without the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.\n(h) If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining\nprovisions shall remain in full force and effect.\n(i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All sections\nof this Agreement relating to the rights and obligations of the parties concerning Confidential Information disclosed during the term of the\nAgreement shall survive any such termination.\nIN WITENSS WHEREOF, the parties hereto have executed this Agreement.\n*  Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to\nthe confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the\nSecurities and Exchange Commission.\n33	EXHIBIT B\nTO:\nTHE MICROSOFT OPERATIONS DIGITAL DISTRIBUTION AGREEMENT\nBETWEEN:\nMICROSOFT CORPORATION AND DIGITAL RIVER, INC.\nDATED:\nSeptember 1, 2006\nNAME\nNon-Disclosure Agreement\nMICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\n(STANDARD RECIPROCAL)\nThis Non-Disclosure Agreement (the "Agreement") is made and entered into as of the later of the two signature dates below by and between\nMICROSOFT CORPORATION, a Washington corporation ("Microsoft"), and Digital River, Inc., a Delaware corporation ("Company").\nIN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE MUTUAL\nDISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO AGREE AS FOLLOWS:\n1. Definition of Confidential Information and Exclusions.\n(a) "Confidential Information" means nonpublic information that a party to this Agreement ("Disclosing Party") designates as being\nconfidential to the party that receives such information ("Receiving Party") or which, under the circumstances surrounding disclosure ought to be\ntreated\nas\nconfidential\nby\nthe\nReceiving\nParty.\n"Confidential\nInformation"\nincludes,\nwithout\nlimitation,\ninformation\nin\ntangible\nor\nintangible\nform\nrelating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing\nParty product, Disclosing Party's business policies or practices, and information received from others that Disclosing Party is obligated to treat as\nconfidential. Except as otherwise indicated in this Agreement, the term Disclosing Party" also includes all Affiliates of the Disclosing Party and,\nexcept as otherwise indicated, the term "Receiving Party" also includes all Affiliates of the Receiving Party. And "Affiliate" means any person,\npartnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly\nor\nindirectly, control, are controlled by, or are under common control with a party.\n(b) Confidential Information shall not include any information, however designated, that: (1) is or subsequently becomes publicly available\nwithout Receiving Party's breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party's\ndisclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a\nsource\nother than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed\nby Receiving Party.\n2. Obligations Regarding Confidential Information\n(a) Receiving Party shall:\n(i) Refrain from disclosing any Confidential Information of the Disclosing Party to third parties for five (5) years following the\ndate that Disclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in\nSections 2(b) and 2(c) of this Agreement,\n(ii) Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but\nno less than reasonable care, to keep confidential the Confidential Information of the Disclosing Party;\n(iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidentia Information of the Disclosing Party except\nin pursuance of Receiving Party's business relationship with Disclosing Party, and only as otherwise provided hereunder;\nand\n(iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre- release hardware devices\ndisclosed by Disclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by\napplicable law.\nConfidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to\nthe confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the\nSecurities and Exchange Commission.\n31\n(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order,\nprovided that Receiving Party either (i) gives the undersigned Disclosing Party reasonable notice prior to such disclosure to allow Disclosing\nParty a reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance from the applicable judicial or\ngovernmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation.\nNotwithstanding the foregoing, the Receiving Party shall not disclose any computer source code that contains Confidential Information of the\nDisclosing Party in accordance with a judicial or other governmental order unless it complies with the requirement set forth in sub-section (1)\nof\nthis Section 2(b).\n(c) The undersigned Receiving Party may disclose Confidentia Information only to Receiving Party's employees and consultants on\na\nneed-to-know basis. The undersigned Receiving Party will have executed or shall execute appropriate written agreements with third parties\nsufficient to enable Receiving Party to enforce all the provisions of this Agreement\n(d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with\nDisclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n(e) Receiving Party shall, at Disclosing Party's request, return all originals, copies, reproductions and summaries of Confidential\nInformation and all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party's\noption, certify destruction of the same.\n3. Remedies\nThe parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and\nthat Disclosing Party shall be entitled, without waiving any other tights or remedies, to such injunctive or equitable relief as may be deemed\nproper by a court of competent jurisdiction.\n4. Miscellaneous\n(a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving\nParty, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade\nsecret information except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such\npatents, copyrights, trademarks, or trade secrets except as otherwise provided herein.\n(b)\nIn the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential Information\nunder the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation and\nproviding Feedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and the\nReceiving\nParty,\nall\nsuch\ncomputer\nsoftware\nand/or\nhardware\nis\nprovided\n"AS\nIS"\nwithout\nwarranty\nof\nany\nkind,\nand\nReceiving\nParty\nagrees\nthat\nneither Disclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party's use or inability\nto use such software and/or hardware.\n(c) The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii)\nany\nproduct (or any part thereof), process or service that is the direct product of the Confidential Information, including the U.S. Export\nAdministration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional\ninformation on exporting Microsoft products, see http://www.microsoft.com/exporting/.\n(d) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party's right\nto independently develop or acquire products without use of the other party's Confidential Information.\n(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified\nexcept by a written agreement dated subsequent to the date of this Agreement and signed by both parties. None of the provisions of this\nAgreement shall be deemed to have been waived by any act or acquiescence on the part of Disclosing Party, the Receiving Party, their agents, or\nemployees, but only by an instrument\nConfidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to\nthe confidentiality request. Omissions are designated as A complete version of this agreement has been filed separately with the\nSecurities and Exchange Commission.\n32\nin\nwriting signed by an authorized employee of Disclosing Party and the Receiving Party. No waiver of any provision of this Agreement shall\nconstitute a waiver of any other provision(s) or of the same provision on another occasion.\n(f) If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the\nprevailing party shall be entitled to recover reasonable attorneys' fees and costs. This Agreement shall be construed and controlled by the laws of\nthe State of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County,\nWashington, unless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the\nSuperior Court of King County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non conveniens. Process\nmay be served on either party in the manner authorized by applicable law or court rule.\n(g) This Agreement shall be binding upon and inure to the benefit of each party's respective successors and lawful assigns; provided,\nhowever, that neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole\nor in part, without the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.\n(h) If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining\nprovisions shall remain in full force and effect.\n(i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All sections\nof this Agreement relating to the rights and obligations of the parties concerning Confidential Information disclosed during the term of the\nAgreement shall survive any such termination.\nIN WITENSS WHEREOF, the parties hereto have executed this Agreement.\nConfidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to\nthe confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the\nSecurities and Exchange Commission.\n33	EXHIBIT B\nTO:\nTHE MICROSOFT OPERATIONS DIGITAL DISTRIBUTION AGREEMENT\nBETWEEN: MICROSOFT CORPORATION AND DIGITAL RIVER, INC.\nDATED:\nSeptember 1, 2006\nNAME\nNon-Disclosure Agreement\nMICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\n(STANDARD RECIPROCAL)\nThis Non-Disclosure Agreement (the “Agreement”) is made and entered into as of the later of the two signature dates below by and between\nMICROSOFT CORPORATION, a Washington corporation (“Microsoft”), and Digital River, Inc., a Delaware corporation (“Company”).\nIN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE MUTUAL\nDISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO AGREE AS FOLLOWS:\n1. Definition of Confidential Information and Exclusions.\n(a) “Confidential Information” means nonpublic information that a party to this Agreement (“Disclosing Party”) designates as being\nconfidential to the party that receives such information (“Receiving Party”) or which, under the circumstances surrounding disclosure ought to be\ntreated as confidential by the Receiving Party. “Confidential Information” includes, without limitation, information in tangible or intangible form\nrelating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing\nParty product, Disclosing Party’s business policies or practices, and information received from others that Disclosing Party is obligated to treat as\nconfidential. Except as otherwise indicated in this Agreement, the term Disclosing Party” also includes all Affiliates of the Disclosing Party and,\nexcept as otherwise indicated, the term “Receiving Party” also includes all Affiliates of the Receiving Party. And “Affiliate” means any person,\npartnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or\nindirectly, control, are controlled by, or are under common control with a party.\n(b) Confidential Information shall not include any information, however designated, that: (1) is or subsequently becomes publicly available\nwithout Receiving Party’s breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s\ndisclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source\nother than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed\nby Receiving Party.\n2. Obligations Regarding Confidential Information\n(a) Receiving Party shall:\n(i) Refrain from disclosing any Confidential Information of the Disclosing Party to third parties for five (5) years following the\ndate that Disclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in\nSections 2(b) and 2(c) of this Agreement,\n(ii) Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but\nno less than reasonable care, to keep confidential the Confidential Information of the Disclosing Party;\n(iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except\nin pursuance of Receiving Party’s business relationship with Disclosing Party, and only as otherwise provided hereunder; and\n(iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre- release hardware devices\ndisclosed by Disclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by\napplicable law.\n*\nConfidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to\nthe confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the\nSecurities and Exchange Commission.\n31\n(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order,\nprovided that Receiving Party either (i) gives the undersigned Disclosing Party reasonable notice prior to such disclosure to allow Disclosing\nParty a reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance from the applicable judicial or\ngovernmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation.\nNotwithstanding the foregoing, the Receiving Party shall not disclose any computer source code that contains Confidential Information of the\nDisclosing Party in accordance with a judicial or other governmental order unless it complies with the requirement set forth in sub-section (1) of\nthis Section 2(b).\n(c) The undersigned Receiving Party may disclose Confidential Information only to Receiving Party’s employees and consultants on a\nneed-to-know basis. The undersigned Receiving Party will have executed or shall execute appropriate written agreements with third parties\nsufficient to enable Receiving Party to enforce all the provisions of this Agreement\n(d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with\nDisclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n(e) Receiving Party shall, at Disclosing Party’s request, return all originals, copies, reproductions and summaries of Confidential\nInformation and all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party’s\noption, certify destruction of the same.\n3. Remedies\nThe parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and\nthat Disclosing Party shall be entitled, without waiving any other tights or remedies, to such injunctive or equitable relief as may be deemed\nproper by a court of competent jurisdiction.\n4. Miscellaneous\n(a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving\nParty, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade\nsecret information except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such\npatents, copyrights, trademarks, or trade secrets except as otherwise provided herein.\n(b) In the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential Information\nunder the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation and\nproviding Feedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and the\nReceiving Party, all such computer software and/or hardware is provided “AS IS” without warranty of any kind, and Receiving Party agrees that\nneither Disclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party’s use or inability\nto use such software and/or hardware.\n(c) The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii) any\nproduct (or any part thereof), process or service that is the direct product of the Confidential Information, including the U.S. Export\nAdministration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional\ninformation on exporting Microsoft products, see http://www.microsoft.com/exporting/.\n(d) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party’s right\nto independently develop or acquire products without use of the other party’s Confidential Information.\n(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified\nexcept by a written agreement dated subsequent to the date of this Agreement and signed by both parties. None of the provisions of this\nAgreement shall be deemed to have been waived by any act or acquiescence on the part of Disclosing Party, the Receiving Party, their agents, or\nemployees, but only by an instrument\n*\nConfidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to\nthe confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the\nSecurities and Exchange Commission.\n32\nin writing signed by an authorized employee of Disclosing Party and the Receiving Party. No waiver of any provision of this Agreement shall\nconstitute a waiver of any other provision(s) or of the same provision on another occasion.\n(f) If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the\nprevailing party shall be entitled to recover reasonable attorneys’ fees and costs. This Agreement shall be construed and controlled by the laws of\nthe State of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County,\nWashington, unless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the\nSuperior Court of King County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non conveniens. Process\nmay be served on either party in the manner authorized by applicable law or court rule.\n(g) This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns; provided,\nhowever, that neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole\nor in part, without the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.\n(h) If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining\nprovisions shall remain in full force and effect.\n(i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All sections\nof this Agreement relating to the rights and obligations of the parties concerning Confidential Information disclosed during the term of the\nAgreement shall survive any such termination.\nIN WITENSS WHEREOF, the parties hereto have executed this Agreement.\n*\nConfidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to\nthe confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the\nSecurities and Exchange Commission.\n33
+e90afd0c36ad8ce86d62ef0cbe75cde3.pdf	effective_date jurisdiction party term	EX-99.D.3 9 d70867dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nApril 2, 2015\nPERSONAL AND CONFIDENTIAL\nAlan S. Korman\nVice President, General Counsel\n& Secretary\nColumbus McKinnon Corporation\n140 John James Audubon Parkway\nAmherst, New York 14228\nDear Mr. Korman:\nTo allow you to evaluate a possible transaction (the “Potential Transaction”) involving Magnetek, Inc. (the “Company”) and/or its\nsecurities, we are prepared to provide you, upon your execution and delivery to us of this letter agreement, with access to information about the\nproperties and operations of the Company that we consider confidential and proprietary in nature. All information about the Company furnished\nby us or our Representatives (as defined below), or that you or your Representatives learn through access that we grant to our facilities,\nproperties or records, whether such information is furnished or such access is provided before, on or after the date of this letter agreement,\nwhether oral or written and regardless of the manner in which it is furnished or such access is provided, is referred to in this letter agreement as\n“Proprietary Information.” Notwithstanding the foregoing, Proprietary Information does not include information that (a) is or becomes generally\navailable to the public other than as a result of a disclosure by you or your Representatives, (b) was known to you on a nonconfidential basis\nprior to its disclosure by us or our Representatives, provided that the source of such information was not, to your knowledge after reasonable\ninquiry, bound by any confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to us or any of our\nRepresentatives, (c) becomes available to you on a nonconfidential basis from a person other than us or our Representatives who is not, to your\nknowledge after reasonable inquiry, bound by any confidentiality agreement with or other contractual, legal or fiduciary obligation of\nconfidentiality to us or any of our Representatives or (d) is independently developed by you or your Representatives without the use of or\nreference to any Proprietary Information. All Proprietary Information furnished by us or our Representatives pursuant to this letter agreement\nshall be and remain the property of the Company. As used in this letter agreement, (i) the term “person” shall be broadly interpreted to include,\nwithout limitation, any corporation, general or limited partnership, limited liability company, joint venture or other entity and any individual, and\n(ii) the term “Representative” means, as to any person, such person’s affiliates and its and their directors, officers, employees, agents, advisors\n(including, without limitation, financial advisors, counsel and accountants), controlling persons and debt and equity financing sources; provided,\nhowever, that, with respect to your debt and equity financing sources, such persons shall be considered Representatives only from and after the\ndate they agree in writing to be bound by the confidentiality and non-use restrictions of this letter agreement as if a party hereto and only to the\nextent the Company has given its prior written consent for such persons to receive Proprietary Information.\nAs a condition to receiving any Proprietary Information from us, you agree as follows:\n1. You shall (a) keep all Proprietary Information confidential and not disclose or reveal any Proprietary Information to any person other\nthan your Representatives who are actively and directly participating in your evaluation of the Potential Transaction or who otherwise need to\nknow the Proprietary Information for the purpose of evaluating or consummating the Potential Transaction and who agree in writing, prior to any\nProprietary Information being made available to them, to be bound by the confidentiality and non-use restrictions of this letter agreement, (b) use\nthe Proprietary Information only for the purpose of evaluating or consummating the Potential Transaction (and not for any other purpose,\nincluding, without limitation, in furtherance of your business or in any way directly or indirectly detrimental to the Company), (c) not disclose to\nany person any information about the Potential Transaction or the terms or conditions or any other facts relating thereto, including, without\nlimitation, the fact that discussions are taking place with respect thereto or the status thereof or the fact that Proprietary Information has been\nmade available to you or your Representatives, except that you may disclose such information to your Representatives who are actively and\ndirectly participating in your\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 2\nevaluation of the Potential Transaction or who otherwise need to know such information for the purpose of evaluating or consummating the\nPotential Transaction, and (d) cooperate in good faith in any manner that we reasonably request with respect to the implementation of any\nprotective procedures that we deem advisable by reason of the antitrust or competition laws of any jurisdiction.\n2. If you or your Representatives are requested or required (by oral question or request for information or documents in legal proceedings,\ninterrogatories, subpoena, civil investigation demand or similar process or by reason of the express requirements of federal or state securities\nlaws or of any recognized stock exchange on which your securities are traded) to disclose any Proprietary Information or any other information\nrelating to the Company and/or the Potential Transaction, then you shall provide us with prompt written notice of the existence, terms and\ncircumstances surrounding such request or requirement to enable us (a) to seek an appropriate protective order or other remedy, (b) to consult\nwith you with respect to our taking steps to resist or narrow the scope of such request or legal process and/or (c) to waive compliance, in whole\nor in part, with the terms of this letter agreement. If, in the absence of a protective order or a waiver under this letter agreement, you or any of\nyour Representatives is nonetheless, based on the written advice of your counsel, compelled to disclose Proprietary Information to any tribunal or\nelse stand liable for contempt, then you or such Representative may disclose such Proprietary Information to the tribunal, provided that (i) to the\nextent practical in light of the circumstances, we are given the opportunity to approve, and have approved, any written disclosure of the\nProprietary Information (which approval shall not be unreasonably withheld, delayed or conditioned) and (ii) you use your reasonable best efforts\nto obtain an order or other reasonable assurance that confidential treatment will be accorded to such portion of the Proprietary Information\nrequired to be disclosed as we may designate in our sole discretion. Subject to the foregoing, you or such Representative shall not be liable for\nthe disclosure to such tribunal to the extent such disclosure is compelled (it being understood, however, that if such disclosure was caused or\nresulted from a previous disclosure by you or your Representatives not permitted under this letter agreement, then the other terms and provisions\nof this letter agreement shall continue in full force and effect and shall be enforceable by us as to such disclosure or disclosures not permitted\nunder this letter agreement that resulted in the compelled disclosure).\n3. You shall enforce the terms of this letter agreement, including, without limitation, the nondisclosure, nonuse and other obligations\nregarding Proprietary Information, as to your Representatives. You shall take all reasonable action, legal or otherwise, necessary (a) to cause your\nRepresentatives to comply with the terms of this letter agreement and (b) to prevent unauthorized disclosure or use of the Proprietary Information\nby any of your Representatives (including, without limitation, actions that you would take to protect your own trade secrets and confidential\ninformation). Any failure by any of your Representatives to comply with this letter agreement, or any act or omission by any of your\nRepresentatives that, if committed by you, would constitute a breach of this letter agreement, shall be deemed to be a breach of this letter\nagreement by you for which you shall be jointly and severally responsible with your relevant Representatives. At our request, you shall supply to\nus a list of your Representatives to whom you have made Proprietary Information available.\n4. You acknowledge that certain of the Proprietary Information to which you or your Representatives may be given access pursuant to this\nletter agreement is information to which the attorney-client or similar privilege attaches (collectively, the “Privileged Information”). You agree\nthat access to such Privileged Information is being provided solely for the purposes set forth in this letter agreement and that such access is not\nintended and should not be interpreted as a waiver of any attorney-client or similar privilege in respect of the Privileged Information or of any\nright to assert or claim any attorney-client or similar privilege in respect of the Privileged Information. To the extent any attorney-client or\nsimilar privilege is deemed waived notwithstanding the foregoing, such waiver shall be a limited waiver in favor of you, solely for the purposes\nand on the terms set forth in this letter agreement. Upon our request, you shall claim or assert, or cooperate in good faith to claim or assert, any\nattorney-client or similar privilege in respect of the Privileged Information. The provisions of this paragraph shall survive the expiration or\ntermination of this letter agreement.\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 3\n5. If you determine that you do not wish to proceed with the Potential Transaction, then you shall promptly provide us with written notice\nof that decision. In that case, or if the Potential Transaction is not consummated by you or if we, in our sole discretion, at any time so request,\nthen you shall promptly (and in any case within ten (10) days after our request) (a) return or cause to be returned to us all written Proprietary\nInformation (and all copies thereof) that you or any of your Representatives possess or control and delete or cause to be deleted all electronic\nProprietary Information that you or any of your Representatives possess or control, (b) destroy or cause to be destroyed all copies, extracts or\nother reproductions (including computer tapes, discs and other electronic storage means or oral reproductions) in whole or in part of such written\n(or electronic) materials, (c) destroy or cause to be destroyed all copies of any analyses, compilations, studies or other documents prepared by\nyou or your Representatives or for your use containing or reflecting any Proprietary Information and (d) deliver to us a written certificate,\nexecuted on your behalf by an authorized officer supervising the return, deletion and destruction of such materials, certifying, representing and\nwarranting to us that all materials required to be returned, deleted or destroyed pursuant to this letter agreement have been returned, deleted or\ndestroyed in accordance with the terms of this letter agreement, provided that such certificate, to the extent relating to materials prepared by your\nRepresentatives, may be based on a similar certificate obtained from your Representatives. Notwithstanding the foregoing, your outside counsel,\nwhose identity you disclose to us in writing, may retain one (1) copy of the materials described in clause (a) above for archival purposes as\nrequired by applicable law. Where this letter agreement requires or permits materials to be deleted or destroyed, in the case of materials in any\nelectronic format, compliance with such provision means that such materials shall be permanently erased from all computer hard drives, servers\nand similar media; provided, however, that such provision shall not require any action to delete or erase such materials from any disaster\nrecovery tapes or other back-up media of any record retention or computer storage system so long as you take such reasonable actions as are\nreasonably likely to prevent access on a permanent basis to such materials by any person other than information technology and other\nadministrative employees who are responsible for maintaining those disaster recovery tapes and other back-up media. The return, deletion and/or\ndestruction of materials shall not relieve you or any of your Representatives of any confidentiality, nonuse or other obligations regarding\nProprietary Information, whether arising under this letter agreement, applicable law or otherwise.\n6. Without our prior written consent, you shall not, and you shall cause your affiliates not to, for a period of two (2) years from the date of\nthis letter agreement, take any action to solicit, induce or otherwise offer employment to, engage in discussions regarding employment with, or\nactually hire, any person who is now employed by us or any of our affiliates and (a) with whom you have any contact or about whom you obtain\nany Proprietary Information as a result of your evaluation of, or otherwise in connection with, the Potential Transaction or (b) who performs\nemployment services in an executive, management or engineering position. Notwithstanding the foregoing, nothing in this paragraph shall\nprohibit you from soliciting, inducing or otherwise offering employment to any employee of ours or any of our affiliates (i) who responds to a\npublic advertisement of general solicitation placed by you and not targeted at our employees, (ii) whose employment with us and each of our\naffiliates has terminated for a period of at least ninety (90) consecutive days prior to any contact with such employee initiated by you or any of\nyour affiliates or (iii) who is solicited by an employee of an executive search firm acting on your (or any of your affiliates’) behalf where you did\nnot identify to such search firm the name of such employee and you did not direct, instruct or encourage the solicitation of such specific\nemployee.\n7. You agree that neither we nor our Representatives, nor our or our Representatives’ officers, directors, employees, agents or controlling\npersons, shall be deemed to make, or shall be responsible for, any express or implied representation or warranty as to the accuracy or\ncompleteness of any Proprietary Information, and you agree that none of such persons shall have any liability to you or any of your\nRepresentatives relating to or arising from your or their use of any Proprietary Information, for the content thereof, for any errors therein or for\nany omissions therefrom. You also agree that neither we nor any of our Representatives shall have any obligation to update, supplement or\namend the Proprietary Information as a result of subsequent events or developments or otherwise. You further agree that you are not entitled to\nrely on the accuracy or completeness of any Proprietary\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 4\nInformation and that you shall be entitled to rely solely on such representations and warranties regarding Proprietary Information as may be made\nto you in any final definitive agreement relating to the Potential Transaction, subject to the terms and conditions of such agreement. For purposes\nof this letter agreement, the term “final definitive agreement” does not include any executed letter of intent or other preliminary written\nagreement or any written or oral acceptance of an offer or bid.\n8. You acknowledge that no contract or agreement providing for the Potential Transaction or any similar transaction shall be deemed to\nexist between you and us unless and until a final definitive agreement relating to the Potential Transaction has been executed and delivered by\nyou and us. You hereby waive, in advance, any and all claims (including, without limitation, breach of contract claims, but excluding any claims\nunder any other written agreements between you and us expressly intended to be binding) in connection with any such transaction unless and\nuntil you and we have executed and delivered such a final definitive agreement. You further acknowledge that, unless and until such a final\ndefinitive agreement has been executed and delivered, neither we nor our Representatives shall have any legal obligation of any kind whatsoever\nwith respect to any such transaction by virtue of this letter agreement or any other written or oral expression with respect to such transaction\n(except for obligations under any other written agreements between you and us expressly intended to be binding).\n9. You agree that (a) we and our Representatives may conduct the process that may or may not result in the Potential Transaction in such a\nmanner as we, in our sole discretion, may determine, including, without limitation, negotiating and entering into a final definitive agreement with\nany third party without notice to you, (b) we reserve the right to change, in our sole discretion, at any time and without notice to you, the\nprocedures relating to our and your consideration of the Potential Transaction, including, without limitation, terminating all further discussions\nwith you and demanding that you comply with the provisions of Paragraph 5, and (c) unless and until a final definitive agreement concerning the\nPotential Transaction is executed and delivered by you and us, neither the Company nor any of its Representatives shall have any liability to you\narising out of or relating to the Potential Transaction or any similar transaction, whether by virtue of this letter agreement, any other written or\noral expression with respect to the Potential Transaction or otherwise. Without limitation, you agree that we, in our sole discretion, shall have the\nright at any time to terminate your investigation of the Company and to reject any or all proposals relating to the Potential Transaction for any\nreason without explanation and without liability. The investigation of the Company by you and your Representatives is entirely at your own\nexpense and risk.\n10. Except as otherwise expressly set forth in written instructions that we may provide to you and except for ordinary course business\ncommunications unrelated to the Potential Transaction, you shall not, and you shall cause your Representatives not to, initiate or maintain contact\nwith any of our or our affiliates’ directors, officers, employees or agents, other than Simon Kubbies of Goldman Sachs Group, Inc. or his\ndesignees, regarding the Potential Transaction. Without limitation, you agree that, except as otherwise expressly set forth in written instructions\nthat we may provide to you, (a) Simon Kubbies or his designees shall arrange for the appropriate contacts for due diligence relating to the\nPotential Transaction and (b) all communications regarding the Potential Transaction, all requests for additional information and all requests for\naccess to facilities or management meetings, in each case, to the extent related to the Potential Transaction, shall be submitted and directed to\nSimon Kubbies or his designees.\n11. You acknowledge that you are aware, and you shall advise your Representatives who are informed of the matters that are the subject of\nthis letter agreement, that the United States securities laws prohibit any person who is aware of material, nonpublic information concerning a\ncompany from purchasing or selling securities of that company or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such\ninformation.\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 5\n12. You agree that the Proprietary Information is being furnished to you in consideration of your agreement that, for a period of two\n(2) years after the date of this letter agreement, you and your affiliates shall not (and you and your affiliates shall not advise, assist or encourage\nothers to), directly or indirectly, acting alone or in concert with others, unless specifically requested in writing in advance by the Board of\nDirectors of the Company:\n(a) acquire, offer to acquire, or agree to acquire or offer to acquire (or request permission to do so or to make any proposal in such\nregards), directly or indirectly, by purchase or otherwise, beneficial ownership of the Company or any affiliate thereof or any of the assets\nor businesses of the Company or any affiliate thereof or any securities issued by the Company or any affiliate thereof;\n(b) solicit, make, encourage or in any way participate in the solicitation of, directly or indirectly, any proxies or consents, including,\nwithout limitation, proxies or consents as to voting matters, with respect to any securities of the Company, or otherwise seek to advise or\ninfluence any person with respect to the voting of any securities of the Company;\n(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary\ntransaction involving the Company or its affiliates or any securities, assets or businesses of the Company or its affiliates;\n(d) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any\nextraordinary transaction involving the Company or its affiliates or any securities, assets or businesses of the Company or its affiliates;\n(e) seek or propose to influence control or influence in any manner the Company’s management, Board of Directors or policies;\n(f) disclose any intention, plan or arrangement inconsistent with the foregoing;\n(g) request the Company, its Board of Directors or any of its Representatives, directly or indirectly, to amend or waive any provision\nof this Paragraph 12;\n(h) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing,\nincluding, without limitation, forming, joining or in any way participating in any “group” (as defined in Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended) in connection with any of the foregoing; or\n(i) take any action that might require the Company to make a public announcement regarding any of the foregoing, seek or request\npermission to do any of the foregoing, or make or seek permission to make any public announcement with respect to any of the foregoing.\nIf, at any time during such period, you are approached by any third party concerning a proposal involving any of the matters covered by clauses\n(a) through (i) above or your or any third party’s participation in a transaction involving any securities, assets or businesses of the Company or its\naffiliates, then you shall promptly inform us of the nature of such contact and the parties thereto. The term “beneficial ownership” is used as\ndefined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended, except that references to “securities” shall include: (i) securities,\n(ii) rights or options to own or acquire any securities (whether such right or option is exercisable immediately or only after the passage of time or\nupon the satisfaction of one or more conditions (whether or not within the control of such person), compliance with regulatory requirements or\notherwise) and (iii) any other economic exposure to securities, including through any derivative transaction that gives any such person or any of\nsuch person’s affiliates the economic equivalent of ownership of an amount of securities due to the fact that the value of the derivative is\nexplicitly determined by reference to the price or value of securities, or which provides such person or any of such person’s affiliates an\nopportunity, directly or indirectly, to profit, or to share in any profit, derived from any increase in the value of securities, in any case, without\nregard to whether (A) such derivative conveys any voting rights in securities to such person or any of such person’s affiliates,\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 6\n(B) the derivative is required to be, or capable of being, settled through delivery of securities or (C) such person or any of such person’s affiliates\nmay have entered into other transactions that hedge the economic effect of such beneficial ownership of securities.\n13. Without prejudice to the rights and remedies otherwise available to us, you agree that money damages would not be a sufficient remedy\nfor any breach or threatened breach of this letter agreement by you or any of your Representatives and that we shall be entitled to specific\nperformance and to injunctive or other equitable relief as remedies if you or any of your Representatives breach or threaten to breach any of the\nprovisions of this letter agreement (including any act or omission by any of your Representatives that, if committed by you, would constitute a\nbreach of this letter agreement). You hereby waive any requirement for the securing or posting of any bond in connection with any such remedy.\n14. You acknowledge that no failure or delay by us in exercising any right, power or privilege under this letter agreement shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or\nprivilege under this letter agreement.\n15. This letter agreement shall be governed by and construed in accordance with the laws of the State of Delaware, excluding any choice of\nlaw rules that may direct the application of the laws of another jurisdiction. You expressly agree that any action brought pursuant to this letter\nagreement shall be brought, heard and determined exclusively in the United States Federal District Court for the District of Delaware, and you\nconsent to personal and subject matter jurisdiction and venue in such court and waive and relinquish all right to attack the suitability or\nconvenience of such venue or forum. You waive personal service of any and all process in any such action and consent to all such service of\nprocess made by mail or messenger to the address specified on the first page of this letter agreement. You acknowledge that all directions issued\nby the forum court, including, without limitation, all injunctions and other decrees, shall be binding and enforceable in all jurisdictions.\n16. This letter agreement shall bind and impose obligations upon any of your parent, subsidiary, sibling and other affiliates to which the\nProprietary Information is disseminated. Any assignment of this letter agreement by you without our prior written consent shall be void and\nwithout legal effect. This letter agreement supersedes all prior agreements, and constitutes a complete and exclusive statement of the terms of the\nagreement, between the parties with respect to its subject matter. There have been and are no agreements, representations or warranties between\nthe parties with respect to the subject matter of this letter agreement other than those set forth or provided for in this letter agreement. No\nmodification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon you or us, unless in a writing executed\nby each of you and us. This letter agreement may be executed by signatures exchanged via facsimile or other electronic means and in one or\nmore counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.\n17. This letter agreement shall take effect as of the date hereof and, except as otherwise expressly set forth in this letter agreement, shall\nremain in effect for a period of three (3) years, provided that your and your Representatives’ obligations under this letter agreement with respect\nto any Proprietary Information that constitutes a trade secret under applicable law shall continue until such Proprietary Information no longer\nconstitutes a trade secret under applicable law.\n[Signature page follows]\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 7\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed\nherewith.\nMAGNETEK, INC.\nBy:\n/s/ Scott S. Cramer\nName: Scott S. Cramer\nTitle: VP, General Counsel & Secretary\nACCEPTED AND AGREED:\nColumbus McKinnon Corporation\nBy: /s/ Alan S. Korman\nName: Alan S. Korman\nTitle: VP, General Counsel & Secretary	EX-99.D.3 9 d70867dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nApril 2, 2015\nPERSONAL AND CONFIDENTIAL\nAlan S. Korman\nVice President, General Counsel\n& Secretary\nColumbus McKinnon Corporation\n140 John James Audubon Parkway\nAmbherst, New York 14228\nDear Mr. Korman:\nTo allow you to evaluate a possible transaction (the “Potential Transaction”) involving Magnetek, Inc. (the “Company™) and/or its\nsecurities, we are prepared to provide you, upon your execution and delivery to us of this letter agreement, with access to information about the\nproperties and operations of the Company that we consider confidential and proprietary in nature. All information about the Company furnished\nby us or our Representatives (as defined below), or that you or your Representatives learn through access that we grant to our facilities,\nproperties or records, whether such information is furnished or such access is provided before, on or after the date of this letter agreement,\nwhether oral or written and regardless of the manner in which it is furnished or such access is provided, is referred to in this letter agreement as\n“Proprietary Information.” Notwithstanding the foregoing, Proprietary Information does not include information that (a) is or becomes generally\navailable to the public other than as a result of a disclosure by you or your Representatives, (b) was known to you on a nonconfidential basis\nprior to its disclosure by us or our Representatives, provided that the source of such information was not, to your knowledge after reasonable\ninquiry, bound by any confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to us or any of our\nRepresentatives, (c) becomes available to you on a nonconfidential basis from a person other than us or our Representatives who is not, to your\nknowledge after reasonable inquiry, bound by any confidentiality agreement with or other contractual, legal or fiduciary obligation of\nconfidentiality to us or any of our Representatives or (d) is independently developed by you or your Representatives without the use of or\nreference to any Proprietary Information. All Proprietary Information furnished by us or our Representatives pursuant to this letter agreement\nshall be and remain the property of the Company. As used in this letter agreement, (i) the term “person” shall be broadly interpreted to include,\nwithout limitation, any corporation, general or limited partnership, limited liability company, joint venture or other entity and any individual, and\n(ii) the term “Representative” means, as to any person, such person’s affiliates and its and their directors, officers, employees, agents, advisors\n(including, without limitation, financial advisors, counsel and accountants), controlling persons and debt and equity financing sources; provided,\nhowever, that, with respect to your debt and equity financing sources, such persons shall be considered Representatives only from and after the\ndate they agree in writing to be bound by the confidentiality and non-use restrictions of this letter agreement as if a party hereto and only to the\nextent the Company has given its prior written consent for such persons to receive Proprietary Information.\n \nAs a condition to receiving any Proprietary Information from us, you agree as follows:\n1. You shall (a) keep all Proprietary Information confidential and not disclose or reveal any Proprietary Information to any person other\nthan your Representatives who are actively and directly participating in your evaluation of the Potential Transaction or who otherwise need to\nknow the Proprietary Information for the purpose of evaluating or consummating the Potential Transaction and who agree in writing, prior to any\nProprietary Information being made available to them, to be bound by the confidentiality and non-use restrictions of this letter agreement, (b) use\nthe Proprietary Information only for the purpose of evaluating or consummating the Potential Transaction (and not for any other purpose,\nincluding, without limitation, in furtherance of your business or in any way directly or indirectly detrimental to the Company), (c) not disclose to\nany person any information about the Potential Transaction or the terms or conditions or any other facts relating thereto, including, without\nlimitation, the fact that discussions are taking place with respect thereto or the status thereof or the fact that Proprietary Information has been\nmade available to you or your Representatives, except that you may disclose such information to your Representatives who are actively and\ndirectly participating in your\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 2\nevaluation of the Potential Transaction or who otherwise need to know such information for the purpose of evaluating or consummating the\nPotential Transaction, and (d) cooperate in good faith in any manner that we reasonably request with respect to the implementation of any\nprotective procedures that we deem advisable by reason of the antitrust or competition laws of any jurisdiction.\n2. If you or your Representatives are requested or required (by oral question or request for information or documents in legal proceedings,\ninterrogatories, subpoena, civil investigation demand or similar process or by reason of the express requirements of federal or state securities\nlaws or of any recognized stock exchange on which your securities are traded) to disclose any Proprietary Information or any other information\nrelating to the Company and/or the Potential Transaction, then you shall provide us with prompt written notice of the existence, terms and\ncircumstances surrounding such request or requirement to enable us (a) to seek an appropriate protective order or other remedy, (b) to consult\nwith you with respect to our taking steps to resist or narrow the scope of such request or legal process and/or (c) to waive compliance, in whole\nor in part, with the terms of this letter agreement. If, in the absence of a protective order or a waiver under this letter agreement, you or any of\nyour Representatives is nonetheless, based on the written advice of your counsel, compelled to disclose Proprietary Information to any tribunal or\nelse stand liable for contempt, then you or such Representative may disclose such Proprietary Information to the tribunal, provided that (i) to the\nextent practical in light of the circumstances, we are given the opportunity to approve, and have approved, any written disclosure of the\nProprietary Information (which approval shall not be unreasonably withheld, delayed or conditioned) and (ii) you use your reasonable best efforts\nto obtain an order or other reasonable assurance that confidential treatment will be accorded to such portion of the Proprietary Information\nrequired to be disclosed as we may designate in our sole discretion. Subject to the foregoing, you or such Representative shall not be liable for\nthe disclosure to such tribunal to the extent such disclosure is compelled (it being understood, however, that if such disclosure was caused or\nresulted from a previous disclosure by you or your Representatives not permitted under this letter agreement, then the other terms and provisions\nof this letter agreement shall continue in full force and effect and shall be enforceable by us as to such disclosure or disclosures not permitted\nunder this letter agreement that resulted in the compelled disclosure).\n3. You shall enforce the terms of this letter agreement, including, without limitation, the nondisclosure, nonuse and other obligations\nregarding Proprietary Information, as to your Representatives. You shall take all reasonable action, legal or otherwise, necessary (a) to cause your\nRepresentatives to comply with the terms of this letter agreement and (b) to prevent unauthorized disclosure or use of the Proprietary Information\nby any of your Representatives (including, without limitation, actions that you would take to protect your own trade secrets and confidential\ninformation). Any failure by any of your Representatives to comply with this letter agreement, or any act or omission by any of your\nRepresentatives that, if committed by you, would constitute a breach of this letter agreement, shall be deemed to be a breach of this letter\nagreement by you for which you shall be jointly and severally responsible with your relevant Representatives. At our request, you shall supply to\nus a list of your Representatives to whom you have made Proprietary Information available.\n4. You acknowledge that certain of the Proprietary Information to which you or your Representatives may be given access pursuant to this\nletter agreement is information to which the attorney-client or similar privilege attaches (collectively, the “Privileged Information™). You agree\nthat access to such Privileged Information is being provided solely for the purposes set forth in this letter agreement and that such access is not\nintended and should not be interpreted as a waiver of any attorney-client or similar privilege in respect of the Privileged Information or of any\nright to assert or claim any attorney-client or similar privilege in respect of the Privileged Information. To the extent any attorney-client or\nsimilar privilege is deemed waived notwithstanding the foregoing, such waiver shall be a limited waiver in favor of you, solely for the purposes\nand on the terms set forth in this letter agreement. Upon our request, you shall claim or assert, or cooperate in good faith to claim or assert, any\nattorney-client or similar privilege in respect of the Privileged Information. The provisions of this paragraph shall survive the expiration or\ntermination of this letter agreement.\n \nColumbus McKinnon Corporation\nApril 2, 2015\nPage 3\n5. If you determine that you do not wish to proceed with the Potential Transaction, then you shall promptly provide us with written notice\nof that decision. In that case, or if the Potential Transaction is not consummated by you or if we, in our sole discretion, at any time so request,\nthen you shall promptly (and in any case within ten (10) days after our request) (a) return or cause to be returned to us all written Proprietary\nInformation (and all copies thereof) that you or any of your Representatives possess or control and delete or cause to be deleted all electronic\nProprietary Information that you or any of your Representatives possess or control, (b) destroy or cause to be destroyed all copies, extracts or\nother reproductions (including computer tapes, discs and other electronic storage means or oral reproductions) in whole or in part of such written\n(or electronic) materials, (c) destroy or cause to be destroyed all copies of any analyses, compilations, studies or other documents prepared by\nyou or your Representatives or for your use containing or reflecting any Proprietary Information and (d) deliver to us a written certificate,\nexecuted on your behalf by an authorized officer supervising the return, deletion and destruction of such materials, certifying, representing and\nwarranting to us that all materials required to be returned, deleted or destroyed pursuant to this letter agreement have been returned, deleted or\ndestroyed in accordance with the terms of this letter agreement, provided that such certificate, to the extent relating to materials prepared by your\nRepresentatives, may be based on a similar certificate obtained from your Representatives. Notwithstanding the foregoing, your outside counsel,\nwhose identity you disclose to us in writing, may retain one (1) copy of the materials described in clause (a) above for archival purposes as\nrequired by applicable law. Where this letter agreement requires or permits materials to be deleted or destroyed, in the case of materials in any\nelectronic format, compliance with such provision means that such materials shall be permanently erased from all computer hard drives, servers\nand similar media; provided, however, that such provision shall not require any action to delete or erase such materials from any disaster\nrecovery tapes or other back-up media of any record retention or computer storage system so long as you take such reasonable actions as are\nreasonably likely to prevent access on a permanent basis to such materials by any person other than information technology and other\nadministrative employees who are responsible for maintaining those disaster recovery tapes and other back-up media. The return, deletion and/or\ndestruction of materials shall not relieve you or any of your Representatives of any confidentiality, nonuse or other obligations regarding\nProprietary Information, whether arising under this letter agreement, applicable law or otherwise.\n6. Without our prior written consent, you shall not, and you shall cause your affiliates not to, for a period of two (2) years from the date of\nthis letter agreement, take any action to solicit, induce or otherwise offer employment to, engage in discussions regarding employment with, or\nactually hire, any person who is now employed by us or any of our affiliates and (a) with whom you have any contact or about whom you obtain\nany Proprietary Information as a result of your evaluation of, or otherwise in connection with, the Potential Transaction or (b) who performs\nemployment services in an executive, management or engineering position. Notwithstanding the foregoing, nothing in this paragraph shall\nprohibit you from soliciting, inducing or otherwise offering employment to any employee of ours or any of our affiliates (i) who responds to a\npublic advertisement of general solicitation placed by you and not targeted at our employees, (ii) whose employment with us and each of our\naffiliates has terminated for a period of at least ninety (90) consecutive days prior to any contact with such employee initiated by you or any of\nyour affiliates or (iii) who is solicited by an employee of an executive search firm acting on your (or any of your affiliates”) behalf where you did\nnot identify to such search firm the name of such employee and you did not direct, instruct or encourage the solicitation of such specific\nemployee.\n7. You agree that neither we nor our Representatives, nor our or our Representatives’ officers, directors, employees, agents or controlling\npersons, shall be deemed to make, or shall be responsible for, any express or implied representation or warranty as to the accuracy or\ncompleteness of any Proprietary Information, and you agree that none of such persons shall have any liability to you or any of your\nRepresentatives relating to or arising from your or their use of any Proprietary Information, for the content thereof, for any errors therein or for\nany omissions therefrom. You also agree that neither we nor any of our Representatives shall have any obligation to update, supplement or\namend the Proprietary Information as a result of subsequent events or developments or otherwise. You further agree that you are not entitled to\nrely on the accuracy or completeness of any Proprietary\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 4\nInformation and that you shall be entitled to rely solely on such representations and warranties regarding Proprietary Information as may be made\nto you in any final definitive agreement relating to the Potential Transaction, subject to the terms and conditions of such agreement. For purposes\nof this letter agreement, the term “final definitive agreement” does not include any executed letter of intent or other preliminary written\nagreement or any written or oral acceptance of an offer or bid.\n8. You acknowledge that no contract or agreement providing for the Potential Transaction or any similar transaction shall be deemed to\nexist between you and us unless and until a final definitive agreement relating to the Potential Transaction has been executed and delivered by\nyou and us. You hereby waive, in advance, any and all claims (including, without limitation, breach of contract claims, but excluding any claims\nunder any other written agreements between you and us expressly intended to be binding) in connection with any such transaction unless and\nuntil you and we have executed and delivered such a final definitive agreement. You further acknowledge that, unless and until such a final\ndefinitive agreement has been executed and delivered, neither we nor our Representatives shall have any legal obligation of any kind whatsoever\nwith respect to any such transaction by virtue of this letter agreement or any other written or oral expression with respect to such transaction\n(except for obligations under any other written agreements between you and us expressly intended to be binding).\n9. You agree that (a) we and our Representatives may conduct the process that may or may not result in the Potential Transaction in such a\nmanner as we, in our sole discretion, may determine, including, without limitation, negotiating and entering into a final definitive agreement with\nany third party without notice to you, (b) we reserve the right to change, in our sole discretion, at any time and without notice to you, the\nprocedures relating to our and your consideration of the Potential Transaction, including, without limitation, terminating all further discussions\nwith you and demanding that you comply with the provisions of Paragraph 5, and (c) unless and until a final definitive agreement concerning the\nPotential Transaction is executed and delivered by you and us, neither the Company nor any of its Representatives shall have any liability to you\narising out of or relating to the Potential Transaction or any similar transaction, whether by virtue of this letter agreement, any other written or\noral expression with respect to the Potential Transaction or otherwise. Without limitation, you agree that we, in our sole discretion, shall have the\nright at any time to terminate your investigation of the Company and to reject any or all proposals relating to the Potential Transaction for any\nreason without explanation and without liability. The investigation of the Company by you and your Representatives is entirely at your own\nexpense and risk.\n10. Except as otherwise expressly set forth in written instructions that we may provide to you and except for ordinary course business\ncommunications unrelated to the Potential Transaction, you shall not, and you shall cause your Representatives not to, initiate or maintain contact\nwith any of our or our affiliates’ directors, officers, employees or agents, other than Simon Kubbies of Goldman Sachs Group, Inc. or his\ndesignees, regarding the Potential Transaction. Without limitation, you agree that, except as otherwise expressly set forth in written instructions\nthat we may provide to you, (a) Simon Kubbies or his designees shall arrange for the appropriate contacts for due diligence relating to the\nPotential Transaction and (b) all communications regarding the Potential Transaction, all requests for additional information and all requests for\naccess to facilities or management meetings, in each case, to the extent related to the Potential Transaction, shall be submitted and directed to\nSimon Kubbies or his designees.\n11. You acknowledge that you are aware, and you shall advise your Representatives who are informed of the matters that are the subject of\nthis letter agreement, that the United States securities laws prohibit any person who is aware of material, nonpublic information concerning a\ncompany from purchasing or selling securities of that company or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such\ninformation.\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 5\n12. You agree that the Proprietary Information is being furnished to you in consideration of your agreement that, for a period of two\n(2) years after the date of this letter agreement, you and your affiliates shall not (and you and your affiliates shall not advise, assist or encourage\nothers to), directly or indirectly, acting alone or in concert with others, unless specifically requested in writing in advance by the Board of\nDirectors of the Company:\n(a) acquire, offer to acquire, or agree to acquire or offer to acquire (or request permission to do so or to make any proposal in such\nregards), directly or indirectly, by purchase or otherwise, beneficial ownership of the Company or any affiliate thereof or any of the assets\nor businesses of the Company or any affiliate thereof or any securities issued by the Company or any affiliate thereof;\n(b) solicit, make, encourage or in any way participate in the solicitation of, directly or indirectly, any proxies or consents, including,\nwithout limitation, proxies or consents as to voting matters, with respect to any securities of the Company, or otherwise seek to advise or\ninfluence any person with respect to the voting of any securities of the Company;\n(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary\ntransaction involving the Company or its affiliates or any securities, assets or businesses of the Company or its affiliates;\n(d) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any\nextraordinary transaction involving the Company or its affiliates or any securities, assets or businesses of the Company or its affiliates;\n(e) seek or propose to influence control or influence in any manner the Company’s management, Board of Directors or policies;\n(f) disclose any intention, plan or arrangement inconsistent with the foregoing;\n(g) request the Company, its Board of Directors or any of its Representatives, directly or indirectly, to amend or waive any provision\nof this Paragraph 12;\n(h) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing,\nincluding, without limitation, forming, joining or in any way participating in any “group” (as defined in Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended) in connection with any of the foregoing; or\n(i) take any action that might require the Company to make a public announcement regarding any of the foregoing, seek or request\npermission to do any of the foregoing, or make or seek permission to make any public announcement with respect to any of the foregoing.\nIf, at any time during such period, you are approached by any third party concerning a proposal involving any of the matters covered by clauses\n(a) through (i) above or your or any third party’s participation in a transaction involving any securities, assets or businesses of the Company or its\naffiliates, then you shall promptly inform us of the nature of such contact and the parties thereto. The term “beneficial ownership” is used as\ndefined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended, except that references to “securities” shall include: (i) securities,\n(ii) rights or options to own or acquire any securities (whether such right or option is exercisable immediately or only after the passage of time or\nupon the satisfaction of one or more conditions (whether or not within the control of such person), compliance with regulatory requirements or\notherwise) and (iii) any other economic exposure to securities, including through any derivative transaction that gives any such person or any of\nsuch person’s affiliates the economic equivalent of ownership of an amount of securities due to the fact that the value of the derivative is\nexplicitly determined by reference to the price or value of securities, or which provides such person or any of such person’s affiliates an\nopportunity, directly or indirectly, to profit, or to share in any profit, derived from any increase in the value of securities, in any case, without\nregard to whether (A) such derivative conveys any voting rights in securities to such person or any of such person’s affiliates,\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 6\n(B) the derivative is required to be, or capable of being, settled through delivery of securities or (C) such person or any of such person’s affiliates\nmay have entered into other transactions that hedge the economic effect of such beneficial ownership of securities.\n13. Without prejudice to the rights and remedies otherwise available to us, you agree that money damages would not be a sufficient remedy\nfor any breach or threatened breach of this letter agreement by you or any of your Representatives and that we shall be entitled to specific\nperformance and to injunctive or other equitable relief as remedies if you or any of your Representatives breach or threaten to breach any of the\nprovisions of this letter agreement (including any act or omission by any of your Representatives that, if committed by you, would constitute a\nbreach of this letter agreement). You hereby waive any requirement for the securing or posting of any bond in connection with any such remedy.\n14. You acknowledge that no failure or delay by us in exercising any right, power or privilege under this letter agreement shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or\nprivilege under this letter agreement.\n15. This letter agreement shall be governed by and construed in accordance with the laws of the State of Delaware, excluding any choice of\nlaw rules that may direct the application of the laws of another jurisdiction. You expressly agree that any action brought pursuant to this letter\nagreement shall be brought, heard and determined exclusively in the United States Federal District Court for the District of Delaware, and you\nconsent to personal and subject matter jurisdiction and venue in such court and waive and relinquish all right to attack the suitability or\nconvenience of such venue or forum. You waive personal service of any and all process in any such action and consent to all such service of\nprocess made by mail or messenger to the address specified on the first page of this letter agreement. You acknowledge that all directions issued\nby the forum court, including, without limitation, all injunctions and other decrees, shall be binding and enforceable in all jurisdictions.\n16. This letter agreement shall bind and impose obligations upon any of your parent, subsidiary, sibling and other affiliates to which the\nProprietary Information is disseminated. Any assignment of this letter agreement by you without our prior written consent shall be void and\nwithout legal effect. This letter agreement supersedes all prior agreements, and constitutes a complete and exclusive statement of the terms of the\nagreement, between the parties with respect to its subject matter. There have been and are no agreements, representations or warranties between\nthe parties with respect to the subject matter of this letter agreement other than those set forth or provided for in this letter agreement. No\nmodification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon you or us, unless in a writing executed\nby each of you and us. This letter agreement may be executed by signatures exchanged via facsimile or other electronic means and in one or\nmore counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.\n17. This letter agreement shall take effect as of the date hereof and, except as otherwise expressly set forth in this letter agreement, shall\nremain in effect for a period of three (3) years, provided that your and your Representatives’ obligations under this letter agreement with respect\nto any Proprietary Information that constitutes a trade secret under applicable law shall continue until such Proprietary Information no longer\nconstitutes a trade secret under applicable law.\n[Signature page follows]\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 7\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed\nherewith.\nMAGNETEK, INC.\nBy: /s/ Scott S. Cramer\nName: Scott S. Cramer\nTitle: VP, General Counsel & Secretary\nACCEPTED AND AGREED:\nColumbus McKinnon Corporation\nBy: /s/ Alan S. Korman\nName: Alan S. Korman\nTitle: VP, General Counsel & Secretary	EX-99.D.3 9 d70867dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nApril 2, 2015\nPERSONAL AND CONFIDENTIAL\nAlan S. Korman\nVice President, General Counsel\n& Secretary\nColumbus McKinnon Corporation\n140 John James Audubon Parkway\nAmherst, New York 14228\nDear Mr. Korman:\nTo allow you to evaluate a possible transaction (the "Potential Transaction") involving Magnetek, Inc. (the "Company.") and/or its\nsecurities, we are prepared to provide you, upon your execution and delivery to us of this letter agreement, with access to information about the\nproperties and operations of the Company that we consider confidential and proprietary in nature. All information about the Company furnished\nby us or our Representatives (as defined below), or that you or your Representatives learn through access that we grant to our facilities,\nproperties or records, whether such information is furnished or such access is provided before, on or after the date of this letter agreement,\nwhether oral or written and regardless of the manner in which it is furnished or such access is provided, is referred to in this letter agreement as\n"Proprietary Information."' Notwithstanding the foregoing, Proprietary Information does not include information that (a) is or becomes generally\navailable\nto\nthe\npublic\nother\nthan\nas\na\nresult\nof\na\ndisclosure\nby\nyou\nor\nyour\nRepresentatives,\n(b)\nwas\nknown\nto\nyou\non\na\nnonconfidential\nbasis\nprior to its disclosure by us or our Representatives, provided that the source of such information was not, to your knowledge after reasonable\ninquiry, bound by any confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to us or any of our\nRepresentatives, (c) becomes available to you on a nonconfidential basis from a person other than us or our Representatives who is not, to your\nknowledge after reasonable inquiry, bound by any confidentiality agreement with or other contractual, legal or fiduciary obligation of\nconfidentiality to us or any of our Representatives or (d) is independently developed by you or your Representatives without the use of\nor\nreference to any Proprietary Information. All Proprietary Information furnished by us or our Representatives pursuant to this letter agreement\nshall be and remain the property of the Company. As used in this letter agreement, (i) the term "person" shall be broadly interpreted to include,\nwithout limitation, any corporation, general or limited partnership, limited liability company, joint venture or other entity and any individual, and\n(ii) the term "Representative" means, as to any person, such person's affiliates and its and their directors, officers, employees, agents, advisors\n(including, without limitation, financial advisors, counsel and accountants), controlling persons and debt and equity financing sources; provided,\nhowever, that, with respect to your debt and equity financing sources, such persons shall be considered Representatives only from and after the\ndate they agree in writing to be bound by the confidentiality and non-use restrictions of this letter agreement as if a party hereto and only to the\nextent the Company has given its prior written consent for such persons to receive Proprietary Information.\nAs a condition to receiving any Proprietary Information from us, you agree as follows:\n1. You shall (a) keep all Proprietary Information confidential and not disclose or reveal any Proprietary Information to any person other\nthan your Representatives who are actively and directly participating in your evaluation of the Potential Transaction or who otherwise need to\nknow the Proprietary Information for the purpose of evaluating or consummating the Potential Transaction and who agree in writing, prior to any\nProprietary Information being made available to them, to be bound by the confidentiality and non-use restrictions of this letter agreement, (b) use\nthe Proprietary Information only for the purpose of evaluating or consummating the Potential Transaction (and not for any other purpose,\nincluding, without limitation, in furtherance of your business or in any way directly or indirectly detrimental to the Company), (c) not disclose to\nany person any information about the Potential Transaction or the terms or conditions or any other facts relating thereto, including, without\nlimitation,\nthe\nfact\nthat\ndiscussions\nare\ntaking\nplace\nwith\nrespect\nthereto\nor\nthe\nstatus\nthereof\nor\nthe\nfact\nthat\nProprietary\nInformation\nhas\nbeen\nmade available to you or your Representatives, except that you may disclose such information to your Representatives who are actively and\ndirectly participating in your\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 2\nevaluation of the Potential Transaction or who otherwise need to know such information for the purpose of evaluating or consummating the\nPotential Transaction, and (d) cooperate in good faith in any manner that we reasonably request with respect to the implementation of any\nprotective procedures that we deem advisable by reason of the antitrust or competition laws of any jurisdiction.\n2.\nIf\nyou\nor\nyour\nRepresentatives\nare\nrequested\nor\nrequired\n(by\noral\nquestion\nor\nrequest\nfor\ninformation\nor\ndocuments\nin\nlegal\nproceedings,\ninterrogatories, subpoena, civil investigation demand or similar process or by reason of the express requirements of federal or state securities\nlaws or of any recognized stock exchange on which your securities are traded) to disclose any Proprietary Information or any other information\nrelating to the Company and/or the Potential Transaction, then you shall provide us with prompt written notice of the existence, terms and\ncircumstances surrounding such request or requirement to enable us (a) to seek an appropriate protective order or other remedy, (b) to consult\nwith you with respect to our taking steps to resist or narrow the scope of such request or legal process and/or (c) to waive compliance, in whole\nor in part, with the terms of this letter agreement. If, in the absence of a protective order or a waiver under this letter agreement, you or any of\nyour Representatives is nonetheless, based on the written advice of your counsel, compelled to disclose Proprietary Information to any tribunal or\nelse stand liable for contempt, then you or such Representative may disclose such Proprietary Information to the tribunal, provided that (i) to the\nextent practical in light of the circumstances, we are given the opportunity to approve, and have approved, any written disclosure of the\nProprietary Information (which approval shall not be unreasonably withheld, delayed or conditioned) and (ii) you use your reasonable best efforts\nto obtain an order or other reasonable assurance that confidential treatment will be accorded to such portion of the Proprietary Information\nrequired to be disclosed as we may designate in our sole discretion. Subject to the foregoing, you or such Representative shall not be liable for\nthe disclosure to such tribunal to the extent such disclosure is compelled (it being understood, however, that if such disclosure was caused or\nresulted from a previous disclosure by you or your Representatives not permitted under this letter agreement, then the other terms and provisions\nof this letter agreement shall continue in full force and effect and shall be enforceable by us as to such disclosure or disclosures not permitted\nunder this letter agreement that resulted in the compelled disclosure).\n3.\nYou shall enforce the terms of this letter agreement, including, without limitation, the nondisclosure, nonuse and other obligations\nregarding Proprietary Information, as to your Representatives. You shall take all reasonable action, legal or otherwise, necessary (a) to cause your\nRepresentatives to comply with the terms of this letter agreement and (b) to prevent unauthorized disclosure or use of the Proprietary Information\nby any of your Representatives (including, without limitation, actions that you would take to protect your own trade secrets and confidential\ninformation). Any failure by any of your Representatives to comply with this letter agreement, or any act or omission by any of your\nRepresentatives that, if committed by you, would constitute a breach of this letter agreement, shall be deemed to be a breach of this letter\nagreement by you for which you shall be jointly and severally responsible with your relevant Representatives. At our request, you shall supply\nto\nus a list of your Representatives to whom you have made Proprietary Information available.\n4. You acknowledge that certain of the Proprietary Information to which you or your Representatives may be given access pursuant to this\nletter agreement is information to which the attorney-client or similar privilege attaches (collectively, the "Privileged Information"). You agree\nthat access to such Privileged Information is being provided solely for the purposes set forth in this letter agreement and that such access is not\nintended and should not be interpreted as a waiver of any attorney-client or similar privilege in respect of the Privileged Information or of any\nright to assert or claim any attorney-client or similar privilege in respect of the Privileged Information. To the extent any attorney-client or\nsimilar privilege is deemed waived notwithstanding the foregoing, such waiver shall be a limited waiver in favor of you, solely for the purposes\nand on the terms set forth in this letter agreement. Upon our request, you shall claim or assert, or cooperate in good faith to claim or assert, any\nattorney-client or similar privilege in respect of the Privileged Information. The provisions of this paragraph shall survive the expiration or\ntermination of this letter agreement.\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 3\n5. If you determine that you do not wish to proceed with the Potential Transaction, then you shall promptly provide us with written notice\nof\nthat decision. In that case, or if the Potential Transaction is not consummated by you or if we, in our sole discretion, at any time so request,\nthen you shall promptly (and in any case within ten (10) days after our request) (a) return or cause to be returned to us all written Proprietary\nInformation (and all copies thereof) that you or any of your Representatives possess or control and delete or cause to be deleted all electronic\nProprietary\nInformation\nthat\nyou\nor\nany\nof\nyour\nRepresentatives\npossess\nor\ncontrol,\n(b)\ndestroy\nor\ncause\nto\nbe\ndestroyed\nall\ncopies,\nextracts\nor\nother reproductions (including computer tapes, discs and other electronic storage means or oral reproductions) in whole or in part of such written\n(or electronic) materials, (c) destroy or cause to be destroyed all copies of any analyses, compilations, studies or other documents prepared by\nyou or your Representatives or for your use containing or reflecting any Proprietary Information and (d) deliver to us a written certificate,\nexecuted on your behalf by an authorized officer supervising the return, deletion and destruction of such materials, certifying, representing and\nwarranting to us that all materials required to be returned, deleted or destroyed pursuant to this letter agreement have been returned, deleted\nor\ndestroyed in accordance with the terms of this letter agreement, provided that such certificate, to the extent relating to materials prepared by your\nRepresentatives, may be based on a similar certificate obtained from your Representatives. Notwithstanding the foregoing, your outside counsel,\nwhose identity you disclose to us in writing, may retain one (1) copy of the materials described in clause (a) above for archival purposes as\nrequired by applicable law. Where this letter agreement requires or permits materials to be deleted or destroyed, in the case of materials in\nany\nelectronic format, compliance with such provision means that such materials shall be permanently erased from all computer hard drives, servers\nand similar media; provided, however, that such provision shall not require any action to delete or erase such materials from any disaster\nrecovery tapes or other back-up media of any record retention or computer storage system so long as you take such reasonable actions as are\nreasonably likely to prevent access on a permanent basis to such materials by any person other than information technology and other\nadministrative employees who are responsible for maintaining those disaster recovery tapes and other back-up media. The return, deletion and/or\ndestruction of materials shall not relieve you or any of your Representatives of any confidentiality, nonuse or other obligations regarding\nProprietary Information, whether arising under this letter agreement, applicable law or otherwise.\n6. Without our prior written consent, you shall not, and you shall cause your affiliates not to, for a period of two (2) years from the date of\nthis letter agreement, take any action to solicit, induce or otherwise offer employment to, engage in discussions regarding employment with, or\nactually hire, any person who is now employed by us or any of our affiliates and (a) with whom you have any contact or about whom you obtain\nany Proprietary Information as a result of your evaluation of, or otherwise in connection with, the Potential Transaction or (b) who performs\nemployment services in an executive, management or engineering position Notwithstanding the foregoing, nothing in this paragraph shall\nprohibit you from soliciting, inducing or otherwise offering employment to any employee of ours or any of our affiliates (i) who responds to a\npublic advertisement of general solicitation placed by you and not targeted at our employees, (ii) whose employment with us and each of our\naffiliates has terminated for a period of at least ninety (90) consecutive days prior to any contact with such employee initiated by you or any of\nyour\naffiliates\nor\n(iii)\nwho\nis\nsolicited\nby\nan\nemployee\nof\nan\nexecutive\nsearch\nfirm\nacting\non\nyour\n(or\nany\nof\nyour\naffiliates')\nbehalf\nwhere\nyou\ndid\nnot identify to such search firm the name of such employee and you did not direct, instruct or encourage the solicitation of such specific\nemployee.\n7. You agree that neither we nor our Representatives, nor our or our Representatives' officers, directors, employees, agents or controlling\npersons, shall be deemed to make, or shall be responsible for, any express or implied representation or warranty as to the accuracy or\ncompleteness of any Proprietary Information, and you agree that none of such persons shall have any liability to you or any of your\nRepresentatives relating to or arising from your or their use of any Proprietary Information, for the content thereof, for any errors therein or for\nany omissions therefrom. You also agree that neither we nor any of our Representatives shall have any obligation to update, supplement or\namend the Proprietary Information as a result of subsequent events or developments or otherwise. You further agree that you are not entitled\nto\nrely on the accuracy or completeness of any Proprietary\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 4\nInformation and that you shall be entitled to rely solely on such representations and warranties regarding Proprietary Information as may be made\nto\nyou\nin\nany\nfinal\ndefinitive\nagreement\nrelating\nto\nthe\nPotential\nTransaction,\nsubject\nto\nthe\nterms\nand\nconditions\nof\nsuch\nagreement.\nFor\npurposes\nof this letter agreement, the term "final definitive agreement" does not include any executed letter of intent or other preliminary written\nagreement or any written or oral acceptance of an offer or bid.\n8. You acknowledge that no contract or agreement providing for the Potential Transaction or any similar transaction shall be deemed to\nexist between you and us unless and until a final definitive agreement relating to the Potential Transaction has been executed and delivered by\nyou and us. You hereby waive, in advance, any and all claims (including, without limitation, breach of contract claims, but excluding any claims\nunder any other written agreements between you and us expressly intended to be binding) in connection with any such transaction unless and\nuntil you and we have executed and delivered such a final definitive agreement. You further acknowledge that, unless and until such a final\ndefinitive agreement has been executed and delivered, neither we nor our Representatives shall have any legal obligation of any kind whatsoever\nwith respect to any such transaction by virtue of this letter agreement or any other written or oral expression with respect to such transaction\n(except for obligations under any other written agreements between you and us expressly intended to be binding).\n9. You agree that (a) we and our Representatives may conduct the process that may or may not result in the Potential Transaction in such a\nmanner as we, in our sole discretion, may determine, including, without limitation, negotiating and entering into a final definitive agreement with\nany third party without notice to you, (b) we reserve the right to change, in our sole discretion, at any time and without notice to you, the\nprocedures relating to our and your consideration of the Potential Transaction, including, without limitation, terminating all further discussions\nwith you and demanding that you comply with the provisions of Paragraph 5, and (c) unless and until a final definitive agreement concerning the\nPotential Transaction is executed and delivered by you and us, neither the Company nor any of its Representatives shall have any liability to you\narising out of or relating to the Potential Transaction or any similar transaction, whether by virtue of this letter agreement, any other written or\noral\nexpression\nwith\nrespect\nto\nthe\nPotential\nTransaction\nor\notherwise.\nWithout\nlimitation,\nyou\nagree\nthat\nwe,\nin\nour\nsole\ndiscretion,\nshall\nhave\nthe\nright at any time to terminate your investigation of the Company and to reject any or all proposals relating to the Potential Transaction for any\nreason without explanation and without liability. The investigation of the Company by you and your Representatives is entirely at your own\nexpense and risk.\n10. Except as otherwise expressly set forth in written instructions that we may provide to you and except for ordinary course business\ncommunications unrelated to the Potential Transaction, you shall not, and you shall cause your Representatives not to, initiate or maintain contact\nwith any of our or our affiliates' directors, officers, employees or agents, other than Simon Kubbies of Goldman Sachs Group, Inc. or his\ndesignees, regarding the Potential Transaction. Without limitation, you agree that, except as otherwise expressly set forth in written instructions\nthat we may provide to you, (a) Simon Kubbies or his designees shall arrange for the appropriate contacts for due diligence relating to the\nPotential Transaction and (b) all communications regarding the Potential Transaction, all requests for additional information and all requests for\naccess to facilities or management meetings, in each case, to the extent related to the Potential Transaction, shall be submitted and directed\nto\nSimon Kubbies or his designees.\n11. You acknowledge that you are aware, and you shall advise your Representatives who are informed of the matters that are the subject of\nthis letter agreement, that the United States securities laws prohibit any person who is aware of material, nonpublic information concerning\na\ncompany from purchasing or selling securities of that company or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such\ninformation.\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 5\n12. You agree that the Proprietary Information is being furnished to you in consideration of your agreement that, for a period of two\n(2)\nyears\nafter\nthe\ndate\nof\nthis\nletter\nagreement,\nyou\nand\nyour\naffiliates\nshall\nnot\n(and\nyou\nand\nyour\naffiliates\nshall\nnot\nadvise,\nassist\nor\nencourage\nothers to), directly or indirectly, acting alone or in concert with others, unless specifically requested in writing in advance by the Board of\nDirectors of the Company:\n(a) acquire, offer to acquire, or agree to acquire or offer to acquire (or request permission to do so or to make any proposal in such\nregards), directly or indirectly, by purchase or otherwise, beneficial ownership of the Company or any affiliate thereof or any of the assets\nor businesses of the Company or any affiliate thereof or any securities issued by the Company or any affiliate thereof;\n(b) solicit, make, encourage or in any way participate in the solicitation of, directly or indirectly, any proxies or consents, including,\nwithout limitation, proxies or consents as to voting matters, with respect to any securities of the Company, or otherwise seek to advise or\ninfluence any person with respect to the voting of any securities of the Company;\n(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary\ntransaction involving the Company or its affiliates or any securities, assets or businesses of the Company or its affiliates;\n(d) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any\nextraordinary transaction involving the Company or its affiliates or any securities, assets or businesses of the Company or its affiliates;\n(e) seek or propose to influence control or influence in any manner the Company's management, Board of Directors or policies;\n(f) disclose any intention, plan or arrangement inconsistent with the foregoing;\n(g) request the Company, its Board of Directors or any of its Representatives, directly or indirectly, to amend or waive any provision\nof this Paragraph 12;\n(h) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing,\nincluding, without limitation, forming, joining or in any way participating in any "group" (as defined in Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended) in connection with any of the foregoing; or\n(i) take any action that might require the Company to make a public announcement regarding any of the foregoing, seek or request\npermission to do any of the foregoing, or make or seek permission to make any public announcement with respect to any of the foregoing.\nIf, at any time during such period, you are approached by any third party concerning a proposal involving any of the matters covered by clauses\n(a) through (i) above or your or any third party's participation in a transaction involving any securities, assets or businesses of the Company or its\naffiliates, then you shall promptly inform us of the nature of such contact and the parties thereto. The term "beneficial ownership" is used as\ndefined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended, except that references to "securities" shall include: (i) securities,\n(ii) rights or options to own or acquire any securities (whether such right or option is exercisable immediately or only after the passage of time or\nupon the satisfaction of one or more conditions (whether or not within the control of such person), compliance with regulatory requirements or\notherwise) and (iii) any other economic exposure to securities, including through any derivative transaction that gives any such person or any of\nsuch person's affiliates the economic equivalent of ownership of an amount of securities due to the fact that the value of the derivative is\nexplicitly determined by reference to the price or value of securities, or which provides such person or any of such person's affiliates an\nopportunity, directly or indirectly, to profit, or to share in any profit, derived from any increase in the value of securities, in any case, without\nregard to whether (A) such derivative conveys any voting rights in securities to such person or any of such person's affiliates,\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 6\n(B) the derivative is required to be, or capable of being, settled through delivery of securities or (C) such person or any of such person's affiliates\nmay have entered into other transactions that hedge the economic effect of such beneficial ownership of securities.\n13. Without prejudice to the rights and remedies otherwise available to us, you agree that money damages would not be a sufficient remedy\nfor any breach or threatened breach of this letter agreement by you or any of your Representatives and that we shall be entitled to specific\nperformance and to injunctive or other equitable relief as remedies if you or any of your Representatives breach or threaten to breach any of the\nprovisions of this letter agreement (including any act or omission by any of your Representatives that, if committed by you, would constitute a\nbreach of this letter agreement). You hereby waive any requirement for the securing or posting of any bond in connection with any such remedy.\n14. You acknowledge that no failure or delay by us in exercising any right, power or privilege under this letter agreement shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or\nprivilege under this letter agreement.\n15. This letter agreement shall be governed by and construed in accordance with the laws of the State of Delaware, excluding any choice of\nlaw rules that may direct the application of the laws of another jurisdiction You expressly agree that any action brought pursuant to this letter\nagreement shall be brought, heard and determined exclusively in the United States Federal District Court for the District of Delaware, and you\nconsent to personal and subject matter jurisdiction and venue in such court and waive and relinquish all right to attack the suitability\nor\nconvenience of such venue or forum. You waive personal service of any and all process in any such action and consent to all such service of\nprocess made by mail or messenger to the address specified on the first page of this letter agreement. You acknowledge that all directions issued\nby the forum court, including, without limitation, all injunctions and other decrees, shall be binding and enforceable in all jurisdictions.\n16. This letter agreement shall bind and impose obligations upon any of your parent, subsidiary, sibling and other affiliates to which the\nProprietary Information is disseminated. Any assignment of this letter agreement by you without our prior written consent shall be void and\nwithout legal effect. This letter agreement supersedes all prior agreements, and constitutes a complete and exclusive statement of the terms of\nthe\nagreement, between the parties with respect to its subject matter. There have been and are no agreements, representations or warranties between\nthe parties with respect to the subject matter of this letter agreement other than those set forth or provided for in this letter agreement. No\nmodification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon you or us, unless in a writing executed\nby each of you and us. This letter agreement may be executed by signatures exchanged via facsimile or other electronic means and in one or\nmore counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.\n17. This letter agreement shall take effect as of the date hereof and, except as otherwise expressly set forth in this letter agreement, shall\nremain in effect for a period of three (3) years, provided that your and your Representatives' obligations under this letter agreement with respect\nto\nany Proprietary Information that constitutes a trade secret under applicable law shall continue until such Proprietary Information no longer\nconstitutes a trade secret under applicable law.\n[Signature page follows]\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 7\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed\nherewith.\nMAGNETEK, INC.\nBy:\n/s/ Scott S. Cramer\nName: Scott S. Cramer\nTitle: VP, General Counsel & Secretary\nACCEPTED AND AGREED:\nColumbus McKinnon Corporation\nBy:\n/s/ Alan S. Korman\nName: Alan S. Korman\nTitle: VP, General Counsel & Secretary	EX-99.D.3 9 d70867dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nApril 2, 2015\nPERSONAL AND CONFIDENTIAL\nAlan S. Korman\nVice President, General Counsel\n& Secretary\nColumbus McKinnon Corporation\n140 John James Audubon Parkway\nAmherst, New York 14228\nDear Mr. Korman:\nTo allow you to evaluate a possible transaction (the “Potential Transaction”) involving Magnetek, Inc. (the “Company”) and/or its\nsecurities, we are prepared to provide you, upon your execution and delivery to us of this letter agreement, with access to information about the\nproperties and operations of the Company that we consider confidential and proprietary in nature. All information about the Company furnished\nby us or our Representatives (as defined below), or that you or your Representatives learn through access that we grant to our facilities,\nproperties or records, whether such information is furnished or such access is provided before, on or after the date of this letter agreement,\nwhether oral or written and regardless of the manner in which it is furnished or such access is provided, is referred to in this letter agreement as\n“Proprietary Information.” Notwithstanding the foregoing, Proprietary Information does not include information that (a) is or becomes generally\navailable to the public other than as a result of a disclosure by you or your Representatives, (b) was known to you on a nonconfidential basis\nprior to its disclosure by us or our Representatives, provided that the source of such information was not, to your knowledge after reasonable\ninquiry, bound by any confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to us or any of our\nRepresentatives, (c) becomes available to you on a nonconfidential basis from a person other than us or our Representatives who is not, to your\nknowledge after reasonable inquiry, bound by any confidentiality agreement with or other contractual, legal or fiduciary obligation of\nconfidentiality to us or any of our Representatives or (d) is independently developed by you or your Representatives without the use of or\nreference to any Proprietary Information. All Proprietary Information furnished by us or our Representatives pursuant to this letter agreement\nshall be and remain the property of the Company. As used in this letter agreement, (i) the term “person” shall be broadly interpreted to include,\nwithout limitation, any corporation, general or limited partnership, limited liability company, joint venture or other entity and any individual, and\n(ii) the term “Representative” means, as to any person, such person’s affiliates and its and their directors, officers, employees, agents, advisors\n(including, without limitation, financial advisors, counsel and accountants), controlling persons and debt and equity financing sources; provided,\nhowever, that, with respect to your debt and equity financing sources, such persons shall be considered Representatives only from and after the\ndate they agree in writing to be bound by the confidentiality and non-use restrictions of this letter agreement as if a party hereto and only to the\nextent the Company has given its prior written consent for such persons to receive Proprietary Information.\nAs a condition to receiving any Proprietary Information from us, you agree as follows:\n1. You shall (a) keep all Proprietary Information confidential and not disclose or reveal any Proprietary Information to any person other\nthan your Representatives who are actively and directly participating in your evaluation of the Potential Transaction or who otherwise need to\nknow the Proprietary Information for the purpose of evaluating or consummating the Potential Transaction and who agree in writing, prior to any\nProprietary Information being made available to them, to be bound by the confidentiality and non-use restrictions of this letter agreement, (b) use\nthe Proprietary Information only for the purpose of evaluating or consummating the Potential Transaction (and not for any other purpose,\nincluding, without limitation, in furtherance of your business or in any way directly or indirectly detrimental to the Company), (c) not disclose to\nany person any information about the Potential Transaction or the terms or conditions or any other facts relating thereto, including, without\nlimitation, the fact that discussions are taking place with respect thereto or the status thereof or the fact that Proprietary Information has been\nmade available to you or your Representatives, except that you may disclose such information to your Representatives who are actively and\ndirectly participating in your\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 2\nevaluation of the Potential Transaction or who otherwise need to know such information for the purpose of evaluating or consummating the\nPotential Transaction, and (d) cooperate in good faith in any manner that we reasonably request with respect to the implementation of any\nprotective procedures that we deem advisable by reason of the antitrust or competition laws of any jurisdiction.\n2. If you or your Representatives are requested or required (by oral question or request for information or documents in legal proceedings,\ninterrogatories, subpoena, civil investigation demand or similar process or by reason of the express requirements of federal or state securities\nlaws or of any recognized stock exchange on which your securities are traded) to disclose any Proprietary Information or any other information\nrelating to the Company and/or the Potential Transaction, then you shall provide us with prompt written notice of the existence, terms and\ncircumstances surrounding such request or requirement to enable us (a) to seek an appropriate protective order or other remedy, (b) to consult\nwith you with respect to our taking steps to resist or narrow the scope of such request or legal process and/or (c) to waive compliance, in whole\nor in part, with the terms of this letter agreement. If, in the absence of a protective order or a waiver under this letter agreement, you or any of\nyour Representatives is nonetheless, based on the written advice of your counsel, compelled to disclose Proprietary Information to any tribunal or\nelse stand liable for contempt, then you or such Representative may disclose such Proprietary Information to the tribunal, provided that (i) to the\nextent practical in light of the circumstances, we are given the opportunity to approve, and have approved, any written disclosure of the\nProprietary Information (which approval shall not be unreasonably withheld, delayed or conditioned) and (ii) you use your reasonable best efforts\nto obtain an order or other reasonable assurance that confidential treatment will be accorded to such portion of the Proprietary Information\nrequired to be disclosed as we may designate in our sole discretion. Subject to the foregoing, you or such Representative shall not be liable for\nthe disclosure to such tribunal to the extent such disclosure is compelled (it being understood, however, that if such disclosure was caused or\nresulted from a previous disclosure by you or your Representatives not permitted under this letter agreement, then the other terms and provisions\nof this letter agreement shall continue in full force and effect and shall be enforceable by us as to such disclosure or disclosures not permitted\nunder this letter agreement that resulted in the compelled disclosure).\n3. You shall enforce the terms of this letter agreement, including, without limitation, the nondisclosure, nonuse and other obligations\nregarding Proprietary Information, as to your Representatives. You shall take all reasonable action, legal or otherwise, necessary (a) to cause your\nRepresentatives to comply with the terms of this letter agreement and (b) to prevent unauthorized disclosure or use of the Proprietary Information\nby any of your Representatives (including, without limitation, actions that you would take to protect your own trade secrets and confidential\ninformation). Any failure by any of your Representatives to comply with this letter agreement, or any act or omission by any of your\nRepresentatives that, if committed by you, would constitute a breach of this letter agreement, shall be deemed to be a breach of this letter\nagreement by you for which you shall be jointly and severally responsible with your relevant Representatives. At our request, you shall supply to\nus a list of your Representatives to whom you have made Proprietary Information available.\n4. You acknowledge that certain of the Proprietary Information to which you or your Representatives may be given access pursuant to this\nletter agreement is information to which the attorney-client or similar privilege attaches (collectively, the “Privileged Information”). You agree\nthat access to such Privileged Information is being provided solely for the purposes set forth in this letter agreement and that such access is not\nintended and should not be interpreted as a waiver of any attorney-client or similar privilege in respect of the Privileged Information or of any\nright to assert or claim any attorney-client or similar privilege in respect of the Privileged Information. To the extent any attorney-client or\nsimilar privilege is deemed waived notwithstanding the foregoing, such waiver shall be a limited waiver in favor of you, solely for the purposes\nand on the terms set forth in this letter agreement. Upon our request, you shall claim or assert, or cooperate in good faith to claim or assert, any\nattorney-client or similar privilege in respect of the Privileged Information. The provisions of this paragraph shall survive the expiration or\ntermination of this letter agreement.\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 3\n5. If you determine that you do not wish to proceed with the Potential Transaction, then you shall promptly provide us with written notice\nof that decision. In that case, or if the Potential Transaction is not consummated by you or if we, in our sole discretion, at any time so request,\nthen you shall promptly (and in any case within ten (10) days after our request) (a) return or cause to be returned to us all written Proprietary\nInformation (and all copies thereof) that you or any of your Representatives possess or control and delete or cause to be deleted all electronic\nProprietary Information that you or any of your Representatives possess or control, (b) destroy or cause to be destroyed all copies, extracts or\nother reproductions (including computer tapes, discs and other electronic storage means or oral reproductions) in whole or in part of such written\n(or electronic) materials, (c) destroy or cause to be destroyed all copies of any analyses, compilations, studies or other documents prepared by\nyou or your Representatives or for your use containing or reflecting any Proprietary Information and (d) deliver to us a written certificate,\nexecuted on your behalf by an authorized officer supervising the return, deletion and destruction of such materials, certifying, representing and\nwarranting to us that all materials required to be returned, deleted or destroyed pursuant to this letter agreement have been returned, deleted or\ndestroyed in accordance with the terms of this letter agreement, provided that such certificate, to the extent relating to materials prepared by your\nRepresentatives, may be based on a similar certificate obtained from your Representatives. Notwithstanding the foregoing, your outside counsel,\nwhose identity you disclose to us in writing, may retain one (1) copy of the materials described in clause (a) above for archival purposes as\nrequired by applicable law. Where this letter agreement requires or permits materials to be deleted or destroyed, in the case of materials in any\nelectronic format, compliance with such provision means that such materials shall be permanently erased from all computer hard drives, servers\nand similar media; provided, however, that such provision shall not require any action to delete or erase such materials from any disaster\nrecovery tapes or other back-up media of any record retention or computer storage system so long as you take such reasonable actions as are\nreasonably likely to prevent access on a permanent basis to such materials by any person other than information technology and other\nadministrative employees who are responsible for maintaining those disaster recovery tapes and other back-up media. The return, deletion and/or\ndestruction of materials shall not relieve you or any of your Representatives of any confidentiality, nonuse or other obligations regarding\nProprietary Information, whether arising under this letter agreement, applicable law or otherwise.\n6. Without our prior written consent, you shall not, and you shall cause your affiliates not to, for a period of two (2) years from the date of\nthis letter agreement, take any action to solicit, induce or otherwise offer employment to, engage in discussions regarding employment with, or\nactually hire, any person who is now employed by us or any of our affiliates and (a) with whom you have any contact or about whom you obtain\nany Proprietary Information as a result of your evaluation of, or otherwise in connection with, the Potential Transaction or (b) who performs\nemployment services in an executive, management or engineering position. Notwithstanding the foregoing, nothing in this paragraph shall\nprohibit you from soliciting, inducing or otherwise offering employment to any employee of ours or any of our affiliates (i) who responds to a\npublic advertisement of general solicitation placed by you and not targeted at our employees, (ii) whose employment with us and each of our\naffiliates has terminated for a period of at least ninety (90) consecutive days prior to any contact with such employee initiated by you or any of\nyour affiliates or (iii) who is solicited by an employee of an executive search firm acting on your (or any of your affiliates’) behalf where you did\nnot identify to such search firm the name of such employee and you did not direct, instruct or encourage the solicitation of such specific\nemployee.\n7. You agree that neither we nor our Representatives, nor our or our Representatives’ officers, directors, employees, agents or controlling\npersons, shall be deemed to make, or shall be responsible for, any express or implied representation or warranty as to the accuracy or\ncompleteness of any Proprietary Information, and you agree that none of such persons shall have any liability to you or any of your\nRepresentatives relating to or arising from your or their use of any Proprietary Information, for the content thereof, for any errors therein or for\nany omissions therefrom. You also agree that neither we nor any of our Representatives shall have any obligation to update, supplement or\namend the Proprietary Information as a result of subsequent events or developments or otherwise. You further agree that you are not entitled to\nrely on the accuracy or completeness of any Proprietary\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 4\nInformation and that you shall be entitled to rely solely on such representations and warranties regarding Proprietary Information as may be made\nto you in any final definitive agreement relating to the Potential Transaction, subject to the terms and conditions of such agreement. For purposes\nof this letter agreement, the term “final definitive agreement” does not include any executed letter of intent or other preliminary written\nagreement or any written or oral acceptance of an offer or bid.\n8. You acknowledge that no contract or agreement providing for the Potential Transaction or any similar transaction shall be deemed to\nexist between you and us unless and until a final definitive agreement relating to the Potential Transaction has been executed and delivered by\nyou and us. You hereby waive, in advance, any and all claims (including, without limitation, breach of contract claims, but excluding any claims\nunder any other written agreements between you and us expressly intended to be binding) in connection with any such transaction unless and\nuntil you and we have executed and delivered such a final definitive agreement. You further acknowledge that, unless and until such a final\ndefinitive agreement has been executed and delivered, neither we nor our Representatives shall have any legal obligation of any kind whatsoever\nwith respect to any such transaction by virtue of this letter agreement or any other written or oral expression with respect to such transaction\n(except for obligations under any other written agreements between you and us expressly intended to be binding).\n9. You agree that (a) we and our Representatives may conduct the process that may or may not result in the Potential Transaction in such a\nmanner as we, in our sole discretion, may determine, including, without limitation, negotiating and entering into a final definitive agreement with\nany third party without notice to you, (b) we reserve the right to change, in our sole discretion, at any time and without notice to you, the\nprocedures relating to our and your consideration of the Potential Transaction, including, without limitation, terminating all further discussions\nwith you and demanding that you comply with the provisions of Paragraph 5, and (c) unless and until a final definitive agreement concerning the\nPotential Transaction is executed and delivered by you and us, neither the Company nor any of its Representatives shall have any liability to you\narising out of or relating to the Potential Transaction or any similar transaction, whether by virtue of this letter agreement, any other written or\noral expression with respect to the Potential Transaction or otherwise. Without limitation, you agree that we, in our sole discretion, shall have the\nright at any time to terminate your investigation of the Company and to reject any or all proposals relating to the Potential Transaction for any\nreason without explanation and without liability. The investigation of the Company by you and your Representatives is entirely at your own\nexpense and risk.\n10. Except as otherwise expressly set forth in written instructions that we may provide to you and except for ordinary course business\ncommunications unrelated to the Potential Transaction, you shall not, and you shall cause your Representatives not to, initiate or maintain contact\nwith any of our or our affiliates’ directors, officers, employees or agents, other than Simon Kubbies of Goldman Sachs Group, Inc. or his\ndesignees, regarding the Potential Transaction. Without limitation, you agree that, except as otherwise expressly set forth in written instructions\nthat we may provide to you, (a) Simon Kubbies or his designees shall arrange for the appropriate contacts for due diligence relating to the\nPotential Transaction and (b) all communications regarding the Potential Transaction, all requests for additional information and all requests for\naccess to facilities or management meetings, in each case, to the extent related to the Potential Transaction, shall be submitted and directed to\nSimon Kubbies or his designees.\n11. You acknowledge that you are aware, and you shall advise your Representatives who are informed of the matters that are the subject of\nthis letter agreement, that the United States securities laws prohibit any person who is aware of material, nonpublic information concerning a\ncompany from purchasing or selling securities of that company or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such\ninformation.\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 5\n12. You agree that the Proprietary Information is being furnished to you in consideration of your agreement that, for a period of two\n(2) years after the date of this letter agreement, you and your affiliates shall not (and you and your affiliates shall not advise, assist or encourage\nothers to), directly or indirectly, acting alone or in concert with others, unless specifically requested in writing in advance by the Board of\nDirectors of the Company:\n(a) acquire, offer to acquire, or agree to acquire or offer to acquire (or request permission to do so or to make any proposal in such\nregards), directly or indirectly, by purchase or otherwise, beneficial ownership of the Company or any affiliate thereof or any of the assets\nor businesses of the Company or any affiliate thereof or any securities issued by the Company or any affiliate thereof;\n(b) solicit, make, encourage or in any way participate in the solicitation of, directly or indirectly, any proxies or consents, including,\nwithout limitation, proxies or consents as to voting matters, with respect to any securities of the Company, or otherwise seek to advise or\ninfluence any person with respect to the voting of any securities of the Company;\n(c) offer, seek or propose any merger, consolidation, business combination, recapitalization, restructuring or other extraordinary\ntransaction involving the Company or its affiliates or any securities, assets or businesses of the Company or its affiliates;\n(d) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any\nextraordinary transaction involving the Company or its affiliates or any securities, assets or businesses of the Company or its affiliates;\n(e) seek or propose to influence control or influence in any manner the Company’s management, Board of Directors or policies;\n(f) disclose any intention, plan or arrangement inconsistent with the foregoing;\n(g) request the Company, its Board of Directors or any of its Representatives, directly or indirectly, to amend or waive any provision\nof this Paragraph 12;\n(h) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing,\nincluding, without limitation, forming, joining or in any way participating in any “group” (as defined in Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended) in connection with any of the foregoing; or\n(i) take any action that might require the Company to make a public announcement regarding any of the foregoing, seek or request\npermission to do any of the foregoing, or make or seek permission to make any public announcement with respect to any of the foregoing.\nIf, at any time during such period, you are approached by any third party concerning a proposal involving any of the matters covered by clauses\n(a) through (i) above or your or any third party’s participation in a transaction involving any securities, assets or businesses of the Company or its\naffiliates, then you shall promptly inform us of the nature of such contact and the parties thereto. The term “beneficial ownership” is used as\ndefined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended, except that references to “securities” shall include: (i) securities,\n(ii) rights or options to own or acquire any securities (whether such right or option is exercisable immediately or only after the passage of time or\nupon the satisfaction of one or more conditions (whether or not within the control of such person), compliance with regulatory requirements or\notherwise) and (iii) any other economic exposure to securities, including through any derivative transaction that gives any such person or any of\nsuch person’s affiliates the economic equivalent of ownership of an amount of securities due to the fact that the value of the derivative is\nexplicitly determined by reference to the price or value of securities, or which provides such person or any of such person’s affiliates an\nopportunity, directly or indirectly, to profit, or to share in any profit, derived from any increase in the value of securities, in any case, without\nregard to whether (A) such derivative conveys any voting rights in securities to such person or any of such person’s affiliates,\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 6\n(B) the derivative is required to be, or capable of being, settled through delivery of securities or (C) such person or any of such person’s affiliates\nmay have entered into other transactions that hedge the economic effect of such beneficial ownership of securities.\n13. Without prejudice to the rights and remedies otherwise available to us, you agree that money damages would not be a sufficient remedy\nfor any breach or threatened breach of this letter agreement by you or any of your Representatives and that we shall be entitled to specific\nperformance and to injunctive or other equitable relief as remedies if you or any of your Representatives breach or threaten to breach any of the\nprovisions of this letter agreement (including any act or omission by any of your Representatives that, if committed by you, would constitute a\nbreach of this letter agreement). You hereby waive any requirement for the securing or posting of any bond in connection with any such remedy.\n14. You acknowledge that no failure or delay by us in exercising any right, power or privilege under this letter agreement shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or\nprivilege under this letter agreement.\n15. This letter agreement shall be governed by and construed in accordance with the laws of the State of Delaware, excluding any choice of\nlaw rules that may direct the application of the laws of another jurisdiction. You expressly agree that any action brought pursuant to this letter\nagreement shall be brought, heard and determined exclusively in the United States Federal District Court for the District of Delaware, and you\nconsent to personal and subject matter jurisdiction and venue in such court and waive and relinquish all right to attack the suitability or\nconvenience of such venue or forum. You waive personal service of any and all process in any such action and consent to all such service of\nprocess made by mail or messenger to the address specified on the first page of this letter agreement. You acknowledge that all directions issued\nby the forum court, including, without limitation, all injunctions and other decrees, shall be binding and enforceable in all jurisdictions.\n16. This letter agreement shall bind and impose obligations upon any of your parent, subsidiary, sibling and other affiliates to which the\nProprietary Information is disseminated. Any assignment of this letter agreement by you without our prior written consent shall be void and\nwithout legal effect. This letter agreement supersedes all prior agreements, and constitutes a complete and exclusive statement of the terms of the\nagreement, between the parties with respect to its subject matter. There have been and are no agreements, representations or warranties between\nthe parties with respect to the subject matter of this letter agreement other than those set forth or provided for in this letter agreement. No\nmodification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon you or us, unless in a writing executed\nby each of you and us. This letter agreement may be executed by signatures exchanged via facsimile or other electronic means and in one or\nmore counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.\n17. This letter agreement shall take effect as of the date hereof and, except as otherwise expressly set forth in this letter agreement, shall\nremain in effect for a period of three (3) years, provided that your and your Representatives’ obligations under this letter agreement with respect\nto any Proprietary Information that constitutes a trade secret under applicable law shall continue until such Proprietary Information no longer\nconstitutes a trade secret under applicable law.\n[Signature page follows]\nColumbus McKinnon Corporation\nApril 2, 2015\nPage 7\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed\nherewith.\nMAGNETEK, INC.\nBy:\n/s/ Scott S. Cramer\nName: Scott S. Cramer\nTitle: VP, General Counsel & Secretary\nACCEPTED AND AGREED:\nColumbus McKinnon Corporation\nBy: /s/ Alan S. Korman\nName: Alan S. Korman\nTitle: VP, General Counsel & Secretary
+ead4ae70800732aeb59f689dc2e60117.pdf	effective_date jurisdiction party term	Exhibit D\nNon-Disclosure Agreement\nMicrosoft\nNon-Disclosure Agreement\nThis Non-Disclosure Agreement (“agreement”) is between the patties signing below. “We,” “us” and “our” refer to both of the patties signing below and\nour respective affiliates.\nCOMPANY AND ITS AFFILIATES or\nINDIVIDUAL: Adaptive Biotechnologies\nMICROSOFT CORPORATION\nAND ITS AFFILIATES\nAddress: 1551 Eastlake Ave E\nOne Microsoft Way\nRedmond, WA 98052-6399\nSeattle, WA\n98102\nUSA\nUSA\nSign: /s/ Gene DeFelice\n/s/ Lucy Bassli\nPrint Name: GENE DEFELICE\nLucy Bassli (CELA)\nPrint Title: Senior Vice President, General Counsel\nSignature Date:7/21/17\n21-Jul-17\nFor information about this agreement, contact the Microsoft Contact, Vikram Dendi.\n1. The purpose of this agreement. This agreement allows us to disclose confidential information to each other, to our own affiliates and to the other’s\naffiliates, under the following terms. An “affiliate” is any legal entity that one of us owns, that owns one of us or that is under common control with one\nof us. “Control” and “own” mean possessing a 50% or greater interest in an entity or the right to direct the management of the entity.\n2. Confidential information.\na. What is included. “Confidential information” is non-public information, know-how and trade secrets in any form that:\n•\nAre designated as “confidential”; or\n•\nA reasonable person knows or reasonably should understand to be confidential.\nb. What is not included. The following types of information, however marked, are not confidential information. Information that:\n•\nIs, or becomes, publicly available without a breach of this agreement;\n•\nWas lawfully known to the receiver of the information without an obligation to keep it confidential;\n•\nIs received from another source who can disclose it lawfully and without an obligation to keep it confidential;\n•\nIs independently developed; or\n•\nIs a comment or suggestion one of us volunteers about the other’s business, products or services.\nConfidential\n3. Treatment of confidential information.\na.\nIn general. Subject to the other terms of this agreement, each of us agrees:\n•\nWe will not disclose the other’s confidential information to third parties; and\n•\nWe will use and disclose the other’s confidential information only for purposes of our business relationship with each other.\nb. Security precautions. Each of us agrees:\n•\nTo take reasonable steps to protect the other’s confidential information. These steps must be at least as protective as those we take to\nprotect our own confidential information;\n•\nTo notify the other promptly upon discovery of any unauthorized use or disclosure of confidential information; and\n•\nTo cooperate with the other to help regain control of the confidential information and prevent further unauthorized use or disclosure\nof it.\nc.\nSharing confidential information with affiliates and representatives.\n•\nA “representative” is an employee, contractor. advisor or consultant of one of us or one of our respective affiliates.\n•\nEach of us may disclose the other’s confidential information to our representatives (who may then disclose that confidential\ninformation to other of our representatives) orly if those representatives have a need to know about it for purposes of our business\nrelationship with each other. Before doing so, each of us must:\n•\nensure that affiliates and representatives are required to protect the confidential information on terms consistent with this\nagreement; and\n•\naccept responsibility for each representative’s use of confidential information.\n•\nNeither of us is required to restrict work assignments of representatives who have had access to confidential information. Neither of\nus can control the incoming information the other will disclose to us in the course of working together, or what our representatives\nwill remember, even without notes or other aids. We agree that use of information in representatives’ unaided memories in the\ndevelopment or deployment of our respective products or services does not create liability under this agreement or trade secret law,\nand we agree to limit what we disclose to the other accordingly.\nd. Disclosing confidential information if required to by law. Each of us may disclose the other’s confidential information if required to\ncomply with a court order or other government demand that has the force of law. Before doing so, each of us must seek the highest level of\nprotection available and, when possible, give the other enough prior notice to provide a reasonable chance to seek a protective order.\n4. Length of confidential information obligations.\na.\nTermination. This agreement continues in effect until one of us terminates it. Either of us may terminate this agreement for any reason by\nproviding the other with 30 days’ advance written notice. Termination of this agreement will not change any of the rights and duties made\nwhile this agreement is in effect.\nb. No other use or disclosure of confidential information. Except as permitted above, neither of us will use or disclose the other’s\nconfidential information for five years after we receive it. The five-year time period does not apply if applicable law requires a longer\nperiod.\nConfidential\n5. General rights and obligations.\na.\nLaw that applies; jurisdiction and venue. The laws of the State of Washington govern this agreement. If federal jurisdiction exists, we\neach consent to exclusive jurisdiction and venue in the federal courts in King County, Washington. If not, we each consent to exclusive\njurisdiction and venue in the Superior Court of King County, Washington.\nb. Compliance with law. Each of us will comply with all export laws that apply to confidential information.\nc.\nWaiver. Any delay or failure of either of us to exercise a right or remedy will not result in a waiver of that, or any other, right or remedy.\nd. Money damages insufficient. Each of us acknowledges that money damages may not be sufficient compensation for a breach of this\nagreement. Each of us agrees that the other may seek court orders to stop confidential information from becoming public in breach of this\nagreement.\ne.\nAttorneys’ fees. In any dispute relating to this agreement the prevailing party will be entitled to recover reasonable attorneys’ fees and\ncosts.\nf. Transfers of this agreement. If one of us transfers this agreement, we will not disclose the other’s confidential information to the transferee\nwithout the other’s consent.\ng. Enforceability. If any provision of this agreement is unenforceable, the parties (or, if we cannot agree, a court) will revise it so that it can be\nenforced. Even if no revision is possible, the rest of this agreement will remain in place.\nh. Entire agreement. This agreement does not grant any implied intellectual property licenses to confidential information, except as stated\nabove. We may have contracts with each other covering other specific aspects of our relationship (“other contracts”). The other contract may\ninclude commitments about confidential information, either within it or by referencing another non-disclosure agreement. If so, those\nobligations remain in place for purposes of that other contract. With this exception, this is the entire agreement between us regarding\nconfidential information. It replaces all other agreements and understandings regarding confidential information. We can only change this\nagreement with a signed document that states that it is changing this agreement.\nConfidential	Exhibit D\nNon-Disclosure Agreement\nMicrosoft\nNon-Disclosure Agreement\nThis Non-Disclosure Agreement (“agreement”) is between the patties signing below. “We,” “us” and “our” refer to both of the patties signing below and\nour respective affiliates.\nCOMPANY AND ITS AFFILIATES or MICROSOFT CORPORATION\nINDIVIDUAL: Adaptive Biotechnologies AND ITS AFFILIATES\nAddress: 1551 Eastlake Ave E One Microsoft Way\nSeattle, WA Redmond, WA 98052-6399\n98102\nUSA USA\nSign: /s/ Gene DeFelice /s/ Lucy Bassli\nPrint Name: GENE DEFELICE Lucy Bassli (CELA)\nPrint Title: Senior Vice President, General Counsel\nSignature Date:7/21/17 21-Jul-17\nFor information about this agreement, contact the Microsoft Contact, Vikram Dendi.\n \n1. The purpose of this agreement. This agreement allows us to disclose confidential information to each other, to our own affiliates and to the other’s\naffiliates, under the following terms. An “affiliate” is any legal entity that one of us owns, that owns one of us or that is under common control with one\nof us. “Control” and “own” mean possessing a 50% or greater interest in an entity or the right to direct the management of the entity.\n2. Confidential information.\na. What is included. “Confidential information” is non-public information, know-how and trade secrets in any form that:\n. Are designated as “confidential”; or\n. A reasonable person knows or reasonably should understand to be confidential.\nb. What is not included. The following types of information, however marked, are not confidential information. Information that:\n. Is, or becomes, publicly available without a breach of this agreement;\n. Was lawfully known to the receiver of the information without an obligation to keep it confidential;\n. Is received from another source who can disclose it lawfully and without an obligation to keep it confidential;\n. Is independently developed; or\n. Is a comment or suggestion one of us volunteers about the other’s business, products or services.\nConfidential\n3. Treatment of confidential information. a.  Ingeneral. Subject to the other terms of this agreement, each of us agrees: We will not disclose the other’s confidential information to third parties; and\nWe will use and disclose the other’s confidential information only for purposes of our business relationship with each other.\nb.  Security precautions. Each of us agrees: To take reasonable steps to protect the other’s confidential information. These steps must be at least as protective as those we take to\nprotect our own confidential information;\nTo notify the other promptly upon discovery of any unauthorized use or disclosure of confidential information; and\nTo cooperate with the other to help regain control of the confidential information and prevent further unauthorized use or disclosure\nof it.\nc.  Sharing confidential information with affiliates and representatives. A “representative” is an employee, contractor. advisor or consultant of one of us or one of our respective affiliates.\nEach of us may disclose the other’s confidential information to our representatives (who may then disclose that confidential\ninformation to other of our representatives) orly if those representatives have a need to know about it for purposes of our business\nrelationship with each other. Before doing so, each of us must:\n« ensure that affiliates and representatives are required to protect the confidential information on terms consistent with this\nagreement; and\n» accept responsibility for each representative’s use of confidential information.\nNeither of us is required to restrict work assignments of representatives who have had access to confidential information. Neither of\nus can control the incoming information the other will disclose to us in the course of working together, or what our representatives\nwill remember, even without notes or other aids. We agree that use of information in representatives’ unaided memories in the\ndevelopment or deployment of our respective products or services does not create liability under this agreement or trade secret law,\nand we agree to limit what we disclose to the other accordingly.\nd.  Disclosing confidential information if required to by law. Each of us may disclose the other’s confidential information if required to comply with a court order or other government demand that has the force of law. Before doing so, each of us must seek the highest level of protection available and, when possible, give the other enough prior notice to provide a reasonable chance to seek a protective order. 4. Length of confidential information obligations. a.  Termination. This agreement continues in effect until one of us terminates it. Either of us may terminate this agreement for any reason by providing the other with 30 days’ advance written notice. Termination of this agreement will not change any of the rights and duties made while this agreement is in effect. b.  No other use or disclosure of confidential information. Except as permitted above, neither of us will use or disclose the other’s confidential information for five years after we receive it. The five-year time period does not apply if applicable law requires a longer period. Confidential\n5. General rights and obligations.\na.  Law that applies; jurisdiction and venue. The laws of the State of Washington govern this agreement. If federal jurisdiction exists, we\neach consent to exclusive jurisdiction and venue in the federal courts in King County, Washington. If not, we each consent to exclusive\njurisdiction and venue in the Superior Court of King County, Washington.\nb.  Compliance with law. Each of us will comply with all export laws that apply to confidential information.\nc.  Waiver. Any delay or failure of either of us to exercise a right or remedy will not result in a waiver of that, or any other, right or remedy.\nd. Money damages insufficient. Each of us acknowledges that money damages may not be sufficient compensation for a breach of this\nagreement. Each of us agrees that the other may seek court orders to stop confidential information from becoming public in breach of this\nagreement.\ne.  Attorneys’ fees. In any dispute relating to this agreement the prevailing party will be entitled to recover reasonable attorneys’ fees and\ncosts.\nf. Transfers of this agreement. If one of us transfers this agreement, we will not disclose the other’s confidential information to the transferee\nwithout the other’s consent.\ng.  Enforceability. If any provision of this agreement is unenforceable, the parties (or, if we cannot agree, a court) will revise it so that it can be\nenforced. Even if no revision is possible, the rest of this agreement will remain in place.\nh.  Entire agreement. This agreement does not grant any implied intellectual property licenses to confidential information, except as stated\nabove. We may have contracts with each other covering other specific aspects of our relationship (“other contracts”). The other contract may\ninclude commitments about confidential information, either within it or by referencing another non-disclosure agreement. If so, those\nobligations remain in place for purposes of that other contract. With this exception, this is the entire agreement between us regarding\nconfidential information. It replaces all other agreements and understandings regarding confidential information. We can only change this\nagreement with a signed document that states that it is changing this agreement.\nConfidential	Exhibit D\nNon-Disclosure Agreement\nMicrosoft\nNon-Disclosure Agreement\nThis Non-Disclosure Agreement ("agreement") is between the patties signing below. "We," "us" and "our" refer to both of the patties signing below and\nour respective affiliates.\nCOMPANY AND ITS AFFILIATES or\nMICROSOFT CORPORATION\nINDIVIDUAL: Adaptive Biotechnologies\nAND ITS AFFILIATES\nAddress: 1551 Eastlake Ave E\nOne Microsoft Way\nSeattle, WA\nRedmond, WA 98052-6399\n98102\nUSA\nUSA\nSign: /s/ Gene DeFelice\n/s/ Lucy Bassli\nPrint Name: GENE DEFELICE\nLucy Bassli (CELA)\nPrint Title: Senior Vice President, General Counsel\nSignature Date:7/21/17\n21-Jul-17\nFor information about this agreement, contact the Microsoft Contact, Vikram Dendi.\n1. The purpose of this agreement. This agreement allows us to disclose confidential information to each other, to our own affiliates and to the other's\naffiliates, under the following terms. An "affiliate" is any legal entity that one of us owns, that owns one of us or that is under common control with one\nof us. "Control" and "own" mean possessing a 50% or greater interest in an entity or the right to direct the management of the entity.\n2. Confidential information.\na. What is included. "Confidential information" is non-public information, know-how and trade secrets in any form that:\nAre designated as "confidential"; or\nA reasonable person knows or reasonably should understand to be confidential.\nb.\nWhat is not included. The following types of information, however marked, are not confidential information. Information that:\nIs, or becomes, publicly available without a breach of this agreement;\nWas lawfully known to the receiver of the information without an obligation to keep it confidential;\nIs received from another source who can disclose it lawfully and without an obligation to keep it confidential;\nIs independently developed; or\nIs a comment or suggestion one of us volunteers about the other's business, products or services.\nConfidential\n3. Treatment of confidential information.\na.\nIn general. Subject to the other terms of this agreement, each of us agrees:\nWe will not disclose the other's confidential information to third parties; and\nWe will use and disclose the other's confidential information only for purposes of our business relationship with each other.\nb.\nSecurity precautions. Each of us agrees:\nTo take reasonable steps to protect the other's confidential information. These steps must be at least as protective as those we take to\nprotect our own confidential information;\nTo notify the other promptly upon discovery of any unauthorized use or disclosure of confidential information; and\nTo cooperate with the other to help regain control of the confidential information and prevent further unauthorized use or disclosure\nof it.\nC.\nSharing confidential information with affiliates and representatives.\nA "representative" is an employee, contractor. advisor or consultant of one of us or one of our respective affiliates.\nEach of us may disclose the other's confidential information to our representatives (who may then disclose that confidential\ninformation to other of our representatives) orly if those representatives have a need to know about it for purposes of our business\nrelationship with each other. Before doing so, each of us must:\nensure that affiliates and representatives are required to protect the confidential information on terms consistent with this\nagreement; and\naccept responsibility for each representative's use of confidential information.\nNeither of us is required to restrict work assignments of representatives who have had access to confidential information. Neither of\nus can control the incoming information the other will disclose to us in the course of working together, or what our representatives\nwill remember, even without notes or other aids. We agree that use of information in representatives' unaided memories in the\ndevelopment or deployment of our respective products or services does not create liability under this agreement or trade secret law,\nand we agree to limit what we disclose to the other accordingly.\nd.\nDisclosing confidential information if required to by law. Each of us may disclose the other's confidential information if required to\ncomply with a court order or other government demand that has the force of law. Before doing so, each of us must seek the highest level of\nprotection available and, when possible, give the other enough prior notice to provide a reasonable chance to seek a protective order.\n4.\nLength of confidential information obligations.\na.\nTermination. This agreement continues in effect until one of us terminates it. Either of us may terminate this agreement for any reason by\nproviding the other with 30 days' advance written notice. Termination of this agreement will not change any of the rights and duties made\nwhile this agreement is in effect.\nb.\nNo other use or disclosure of confidential information. Except as permitted above, neither of us will use or disclose the other's\nconfidential information for five years after we receive it. The five-year time period does not apply if applicable law requires a longer\nperiod.\nConfidential\n5. General rights and obligations.\na.\nLaw that applies; jurisdiction and venue. The laws of the State of Washington govern this agreement. If federal jurisdiction exists, we\neach consent to exclusive jurisdiction and venue in the federal courts in King County, Washington. If not, we each consent to exclusive\njurisdiction and venue in the Superior Court of King County, Washington.\nb. Compliance with law. Each of us will comply with all export laws that apply to confidential information.\nC.\nWaiver. Any delay or failure of either of us to exercise a right or remedy will not result in a waiver of that, or any other, right or remedy.\nd.\nMoney damages insufficient. Each of us acknowledges that money damages may not be sufficient compensation for a breach of this\nagreement. Each of us agrees that the other may seek court orders to stop confidential information from becoming public in breach of this\nagreement.\ne.\nAttorneys' fees. In any dispute relating to this agreement the prevailing party will be entitled to recover reasonable attorneys' fees and\ncosts.\nf.\nTransfers of this agreement. If one of us transfers this agreement, we will not disclose the other's confidential information to the transferee\nwithout the other's consent.\ng.\nEnforceability. If any provision of this agreement is unenforceable, the parties (or, if we cannot agree, a court) will revise it so that it can be\nenforced. Even if no revision is possible, the rest of this agreement will remain in place.\nh.\nEntire agreement. This agreement does not grant any implied intellectual property licenses to confidential information except as stated\nabove. We may have contracts with each other covering other specific aspects of our relationship ("other contracts"). The other contract may\ninclude commitments about confidential information, either within it or by referencing another non-disclosure agreement. If so, those\nobligations remain in place for purposes of that other contract. With this exception, this is the entire agreement between us regarding\nconfidential information. It replaces all other agreements and understandings regarding confidential information. We can only change this\nagreement with a signed document that states that it is changing this agreement.\nConfidential	Exhibit D\nNon-Disclosure Agreement\nMicrosoft\nNon-Disclosure Agreement\nThis Non-Disclosure Agreement (“agreement”) is between the patties signing below. “We,” “us” and “our” refer to both of the patties signing below and\nour respective affiliates.\nCOMPANY AND ITS AFFILIATES or\nINDIVIDUAL: Adaptive Biotechnologies\nMICROSOFT CORPORATION\nAND ITS AFFILIATES\nAddress: 1551 Eastlake Ave E\nOne Microsoft Way\nRedmond, WA 98052-6399\nSeattle, WA\n98102\nUSA\nUSA\nSign: /s/ Gene DeFelice\n/s/ Lucy Bassli\nPrint Name: GENE DEFELICE\nLucy Bassli (CELA)\nPrint Title: Senior Vice President, General Counsel\nSignature Date:7/21/17\n21-Jul-17\nFor information about this agreement, contact the Microsoft Contact, Vikram Dendi.\n1. The purpose of this agreement. This agreement allows us to disclose confidential information to each other, to our own affiliates and to the other’s\naffiliates, under the following terms. An “affiliate” is any legal entity that one of us owns, that owns one of us or that is under common control with one\nof us. “Control” and “own” mean possessing a 50% or greater interest in an entity or the right to direct the management of the entity.\n2. Confidential information.\na. What is included. “Confidential information” is non-public information, know-how and trade secrets in any form that:\n•\nAre designated as “confidential”; or\n•\nA reasonable person knows or reasonably should understand to be confidential.\nb. What is not included. The following types of information, however marked, are not confidential information. Information that:\n•\nIs, or becomes, publicly available without a breach of this agreement;\n•\nWas lawfully known to the receiver of the information without an obligation to keep it confidential;\n•\nIs received from another source who can disclose it lawfully and without an obligation to keep it confidential;\n•\nIs independently developed; or\n•\nIs a comment or suggestion one of us volunteers about the other’s business, products or services.\nConfidential\n3. Treatment of confidential information.\na.\nIn general. Subject to the other terms of this agreement, each of us agrees:\n•\nWe will not disclose the other’s confidential information to third parties; and\n•\nWe will use and disclose the other’s confidential information only for purposes of our business relationship with each other.\nb. Security precautions. Each of us agrees:\n•\nTo take reasonable steps to protect the other’s confidential information. These steps must be at least as protective as those we take to\nprotect our own confidential information;\n•\nTo notify the other promptly upon discovery of any unauthorized use or disclosure of confidential information; and\n•\nTo cooperate with the other to help regain control of the confidential information and prevent further unauthorized use or disclosure\nof it.\nc.\nSharing confidential information with affiliates and representatives.\n•\nA “representative” is an employee, contractor. advisor or consultant of one of us or one of our respective affiliates.\n•\nEach of us may disclose the other’s confidential information to our representatives (who may then disclose that confidential\ninformation to other of our representatives) orly if those representatives have a need to know about it for purposes of our business\nrelationship with each other. Before doing so, each of us must:\n•\nensure that affiliates and representatives are required to protect the confidential information on terms consistent with this\nagreement; and\n•\naccept responsibility for each representative’s use of confidential information.\n•\nNeither of us is required to restrict work assignments of representatives who have had access to confidential information. Neither of\nus can control the incoming information the other will disclose to us in the course of working together, or what our representatives\nwill remember, even without notes or other aids. We agree that use of information in representatives’ unaided memories in the\ndevelopment or deployment of our respective products or services does not create liability under this agreement or trade secret law,\nand we agree to limit what we disclose to the other accordingly.\nd. Disclosing confidential information if required to by law. Each of us may disclose the other’s confidential information if required to\ncomply with a court order or other government demand that has the force of law. Before doing so, each of us must seek the highest level of\nprotection available and, when possible, give the other enough prior notice to provide a reasonable chance to seek a protective order.\n4. Length of confidential information obligations.\na.\nTermination. This agreement continues in effect until one of us terminates it. Either of us may terminate this agreement for any reason by\nproviding the other with 30 days’ advance written notice. Termination of this agreement will not change any of the rights and duties made\nwhile this agreement is in effect.\nb. No other use or disclosure of confidential information. Except as permitted above, neither of us will use or disclose the other’s\nconfidential information for five years after we receive it. The five-year time period does not apply if applicable law requires a longer\nperiod.\nConfidential\n5. General rights and obligations.\na.\nLaw that applies; jurisdiction and venue. The laws of the State of Washington govern this agreement. If federal jurisdiction exists, we\neach consent to exclusive jurisdiction and venue in the federal courts in King County, Washington. If not, we each consent to exclusive\njurisdiction and venue in the Superior Court of King County, Washington.\nb. Compliance with law. Each of us will comply with all export laws that apply to confidential information.\nc.\nWaiver. Any delay or failure of either of us to exercise a right or remedy will not result in a waiver of that, or any other, right or remedy.\nd. Money damages insufficient. Each of us acknowledges that money damages may not be sufficient compensation for a breach of this\nagreement. Each of us agrees that the other may seek court orders to stop confidential information from becoming public in breach of this\nagreement.\ne.\nAttorneys’ fees. In any dispute relating to this agreement the prevailing party will be entitled to recover reasonable attorneys’ fees and\ncosts.\nf. Transfers of this agreement. If one of us transfers this agreement, we will not disclose the other’s confidential information to the transferee\nwithout the other’s consent.\ng. Enforceability. If any provision of this agreement is unenforceable, the parties (or, if we cannot agree, a court) will revise it so that it can be\nenforced. Even if no revision is possible, the rest of this agreement will remain in place.\nh. Entire agreement. This agreement does not grant any implied intellectual property licenses to confidential information, except as stated\nabove. We may have contracts with each other covering other specific aspects of our relationship (“other contracts”). The other contract may\ninclude commitments about confidential information, either within it or by referencing another non-disclosure agreement. If so, those\nobligations remain in place for purposes of that other contract. With this exception, this is the entire agreement between us regarding\nconfidential information. It replaces all other agreements and understandings regarding confidential information. We can only change this\nagreement with a signed document that states that it is changing this agreement.\nConfidential
+f28c4f3d35a152dd415f9b255122cb38.pdf	effective_date jurisdiction party term	EX-99.(E)(2) 3 dex99e2.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(2)\n[ORTHOVITA LETTERHEAD]\nJanuary 18, 2011\nBryant Zanko\nVice President, Business Development\nStryker Corporation\n2725 Fairfield Road\nKalamazoo, MI 49002\nDear Bryant:\nYou have requested information regarding Orthovita, Inc. (the “Company”, “us” or “we”) in connection with your consideration of a possible\nnegotiated transaction with the Company (a “Possible Transaction”). For purposes of this agreement, the term “Company” includes the Company\nand its subsidiaries taken as a whole or any business or businesses thereof. In consideration of our furnishing you with the Evaluation Materials (as\ndefined below) you agree as follows:\nConfidentiality of Evaluation Materials\nYou will treat confidentially any information (whether written or oral) that either we or our financial advisor, J.P. Morgan Securities LLC (the\n“Financial Advisor”), or our other representatives furnish to you in connection with a Possible Transaction involving the Company, whether\nfurnished before or after the date of this agreement and regardless of the manner in which it is furnished, together with analyses, compilations,\nstudies or other documents prepared by you, or by your representatives (as defined hereinafter) which contain or otherwise reflect such information\nor your review of, or interest in, the Company (collectively, the “Evaluation Materials”).\nThe term “Evaluation Materials” includes information furnished to you orally or in writing (whatever the form or storage medium) or gathered by\ninspection, and regardless of whether such information is specifically identified as “confidential” including, but not limited to, all conversations,\nmeetings, negotiations, discussions, internal memoranda, documents and notes involving the Company and the Possible Transaction. The term\n“Evaluation Materials” does not include information which (i) is or becomes generally available to you or the public other than as a result of a\ndisclosure by you or your representatives, (ii) was or becomes available to you on a non-confidential basis from a source other than the Company or\nits representatives, provided that to your knowledge, after due inquiry, such source is not prohibited from disclosing such information to you by a\ncontractual, legal or fiduciary obligation to the Company or its representatives or (iii) is independently developed by you without violating your\nobligations hereunder.\nUse of Evaluation Materials\nYou will not use any of the Evaluation Materials for any purpose other than the exclusive purpose of evaluating a Possible Transaction. Except as\nrequired by law, you and your representatives will keep the Evaluation Materials confidential; provided, however, that (i) such information may be\ndisclosed to those of your directors, officers, employees, affiliates, agents and representatives (including attorneys, accountants and financial\nadvisors), lenders and other sources of debt financing (collectively, “your representatives”) who need to know such information for the purpose of\nevaluating a Possible Transaction between you and the Company (it being understood that your representatives shall be informed by you of the\nconfidential nature of such information and shall be directed by you to treat such information as confidential in accordance with this agreement and\nshall be under obligations of confidentiality with respect to such information) and (ii) any other disclosure of such information may only be made if\nthe Company consents in writing prior to any such disclosure. Without limiting the generality of the foregoing, in the event that a Possible\nTransaction is not consummated, neither you nor your representatives shall use any of the Evaluation Materials for any purpose. You will be\nresponsible for any breach of this agreement by you or your representatives.\nYou hereby acknowledge that the Company is a publicly traded company. You further hereby acknowledge that you are aware, and that you will\nadvise your representatives who are informed as to the matters which are the subject of this agreement, that the United States securities laws prohibit\nany person who has received from an issuer material, non-public information from purchasing or selling securities of such issuer or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor sell such securities.\nIf you become aware of any unauthorized disclosure or use of any Evaluation Materials, you hereby covenant to promptly notify the Company.\nMoreover, upon the request of the Company, you shall cooperate in assisting the Company in terminating or preventing any third parties from\ndisseminating or using the Evaluation Materials.\nIn the event that you or any of your representatives receive a request or are required (by deposition, interrogatory, request for documents, subpoena,\ncivil investigative demand or similar process) to disclose all or any part of the Evaluation Materials, you or your representatives, as the case may be,\nhereby agree to (i) immediately notify the Company of the existence, terms and circumstances surrounding such request, (ii) unless to the extent\nlegally impracticable, consult with the Company on the advisability of taking legally available steps to resist or narrow such request and (iii) unless\nto the extent legally impracticable, afford the Company with the opportunity to seek a protective order or other appropriate remedy. If your or your\nrepresentatives’ counsel advises that you or your representatives are legally compelled to disclose the Evaluation Materials to any person, (i) you or\nyour representatives, as the case may be, may, without liability hereunder, disclose to such person only that portion of the Evaluation Materials\nwhich your counsel advised you is legally required to be disclosed. You agree to cooperate with the Company, at the Company’s expense, to obtain\nassurance that confidential treatment will be accorded such Evaluation Materials.\n2\nNon-Disclosure\nThe disclosure of your possible interest in a Possible Transaction could have a material adverse effect on the Company and its business if for any\nreason an agreement of purchase and sale is not consummated or a disclosure is made prior to the closing of a Possible Transaction. Accordingly,\nunless required by applicable law or regulatory authority, you agree that prior to the closing of a Possible Transaction, without the prior written\nconsent of the Company, you will not, and you will direct your representatives not to, disclose to any person the fact that the Evaluation Materials\nhave been made available to you, discussions or negotiations have taken or are taking place concerning a Possible Transaction between the Company\nand you or any of the terms, conditions or other facts with respect to any such Possible Transaction, including the status thereof. The term “person”\nas used in this agreement shall be broadly interpreted to include, without limitation, the media, any corporation or limited liability company, the\nCompany, governmental agency or body, stock exchange, partnership, association or individual.\nOwnership and Return of Evaluation Materials\nAll Evaluation Materials disclosed by or on behalf of the Company shall be and shall remain in the property of the Company. Upon the Company’s\nrequest, you shall promptly deliver to the Company or destroy all written Evaluation Materials without retaining, in whole or in part, any copies,\nextracts or other reproductions (whatever the form or storage medium) of such materials, and shall certify the delivery or destruction, as applicable,\nof all such materials in writing to the Company; provided that economic analyses, privileged communication with your counsel and other proprietary\ndocumentation shall not be required to be delivered to the Company but shall be destroyed as set forth in this sentence and provided further that you\nmay retain one copy of the Evaluation Materials in a secure location within your Legal Department. Notwithstanding the return or destruction of the\nEvaluation Materials, you and your representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder.\nNo Unauthorized Contact or Solicitation\nDuring the course of your evaluation, all inquiries and other communications are to be made directly to the Financial Advisor or employees or\nrepresentatives of the Company specified by the Financial Advisor. Accordingly, except as set forth in the preceding sentence, you agree not to\ndirectly or indirectly contact or communicate with any executive or other employee of the Company (in their capacities as officers or employees of\nthe Company) concerning a Possible Transaction, or to seek any information in connection therewith from such person, without the express written\nconsent of the Financial Advisor. You also agree not to discuss with or offer to any third party any equity participation in a Possible Transaction or\nany other form of joint acquisition by you and such third party without the prior written consent of the Company.\nWithout the Company’s prior written consent, you will not for a period of eighteen months after the date of this agreement directly or indirectly\nsolicit for employment any person who is now employed by the Company in an executive-level position, or any person who is now employed by the\nCompany in a management-level position at the Company’s headquarters in Malvern, Pennsylvania, provided that you are not prohibited from\nemploying any such person who contacts you on his or her own initiative and without any direct or indirect solicitation by you\n3\nand the term “solicit for employment” shall not be deemed to include general solicitations of employment not specifically directed toward employees\nof the Company.\nStandstill\nYou agree that until eighteen months after the date of this agreement, you will not without the prior approval of the Board of Directors of the\nCompany (i) acquire or make any proposal to acquire any securities or property of the Company or to acquire any ability to exercise voting or\ndispositive power with respect to any securities of the Company, (ii) propose to enter into any merger or business combination involving the\nCompany or purchase a material portion of the assets of the Company, (iii) make or participate in any solicitation of proxies to vote, or seek to advise\nor influence any person with respect to the voting of any securities of the Company, (iv) form, join or participate in a “group” (within the meaning of\nSection 13(d)(3) of the Securities Exchange Act of 1934, as amended), with respect to any voting securities of the Company, (v) otherwise act or\nseek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement\ninconsistent with the foregoing or (vii) take any action which might require the Company to make a public announcement regarding the possibility of\na business combination or merger. You also agree during such period not to request the Company (or its directors, officers, employees, agents or\nrepresentatives) to amend or waive any provision of this paragraph unless specifically invited to do so by the Board of Directors of the Company.\nNotwithstanding the restrictions in this paragraph, after the Company has announced that it has entered into a definitive written agreement with a\nthird party with respect to a business combination transaction that, if consummated, would result in a transfer of corporate control of the Company,\nyou may make an acquisition proposal to the Company’s Board of Directors.\nNo Representation or Warranty\nYou acknowledge and agree that none of the Company, the Financial Advisor, or any of their respective representatives or agents is making any\nrepresentation or warranty, expressed or implied, as to the accuracy or completeness of the Evaluation Materials, and none of the Company, the\nFinancial Advisor, or any of their respective representatives or agents, nor any of their respective officers, directors, employees, representatives,\nstockholders, owners, affiliates, advisors or agents, will have any liability to you or any other person resulting from the use of Evaluation Materials\nby you or any of your representatives. Furthermore, nothing contained herein shall constitute an obligation on the part of the Company, the Financial\nAdvisor, or any of their respective representatives or agents to provide Evaluation Materials or to update any Evaluation Materials provided\nhereunder. Only those representations or warranties that are made to you in a definitive agreement for the Possible Transaction (“Definitive\nAgreement”) when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement, will\nhave any legal effect. For purposes of this agreement, the term “Definitive Agreement” does not include an executed non-binding letter of intent or\nany other non-binding written agreement, nor does it include any oral acceptance of an offer or bid by you.\nYou also acknowledge and agree that no contract or agreement providing for the sale of the Company or any interest in the Company shall be\ndeemed to exist between you and the Company unless and until a Definitive Agreement has been executed and delivered by you and each of the\n4\nother parties thereto, and you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with the sale of\nthe Company or any interest in the Company unless and until a Definitive Agreement has been executed and delivered by you and each of the other\nparties thereto. You also agree that unless and until a Definitive Agreement between the Company and you with respect to the acquisition of the\nCompany or any interest in the Company has been executed and delivered by you and each of the other parties thereto, there shall not be any legal\nobligation of any kind whatsoever with respect to any such transaction by virtue of this agreement or any other written or oral expression with\nrespect to such transaction except, in the case of this agreement, for the matters specifically agreed to herein.\nYou further understand and agree that (i) the Company and the Financial Advisor shall be free to conduct any process for the sale of the Company or\nany interest in the Company as they in their sole discretion shall determine (including, without limitation, negotiating with any prospective\ncounterparty and entering into a Definitive Agreement without prior notice to you or to any other person), (ii) any procedures relating to such sale\nmay be changed at any time without notice to you or any other person and (iii) you shall not have any claims whatsoever against the Company, the\nFinancial Advisor or any of their respective directors, officers, employees, stockholders, owners, affiliates, agents or representatives arising out of or\nrelating to a Possible Transaction involving the Company. You further understand and agree that the Company reserves the right, in its sole\ndiscretion, to reject any and all proposals made by you or any of your representatives with regard to any Possible Transaction, and to terminate\ndiscussions and negotiations with you at any time. Neither this paragraph nor any other provision in this agreement can be waived or amended\nexcept by written consent of the Company, which consent shall specifically refer to this paragraph (or such provision) and explicitly make such\nwaiver or amendment.\nLegal Remedy\nYou understand and agree that money damages would not be a sufficient remedy for any breach of this agreement by you or your representatives and\nthat the Company will be entitled to specific performance and injunctive relief as remedies for any such breach. Such remedies shall not be deemed\nto be the exclusive remedies for a breach of this agreement by you or your representatives but shall be in addition to all other remedies available at\nlaw or equity. In the event of litigation relating to this agreement, if a court of competent jurisdiction determines that you or your representatives\nhave breached this agreement, then you shall reimburse the Company for its reasonable legal fees and expenses incurred in connection with such\nlitigation, including any appeals therefrom. Similarly, if a court of competent jurisdiction determines that you and/or your representatives did not\nbreach this agreement, then the Company shall reimburse you and/or your representatives for your reasonable legal fees and expenses incurred in\nconnection with such litigation, including any appeals therefrom.\nOther\nThis agreement constitutes the entire agreement between the parties hereto regarding the subject matter hereof. This agreement may be changed only\nby a written agreement signed by the parties hereto or their authorized representatives.\n5\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, you and the Company understand and agree\nthat you and the Company have a commonality of interest with respect to such matters and it is the Company’s and your desire, intention and mutual\nunderstanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or\nits continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided\nthat is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such\nprotection under these privileges, this agreement, and under the joint defense doctrine.\nIf any term or provision of this agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms\nand provisions of this agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.\nThe parties understand and agree that no failure or delay by the other party in exercising any right, power or privilege under this agreement shall\noperate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege\nhereunder.\nThis agreement shall be governed by and construed in accordance with the laws of the State of New York. You also hereby irrevocably and\nunconditionally consent to submit to the exclusive jurisdiction of the courts of the State of New York and the United States of America, in each case\nlocated in the County of New York, for any actions, suits or proceedings arising out of or relating to this agreement and the transactions\ncontemplated hereby (and you agree not to commence any action, suit or proceeding relating thereto except in such courts, and further agree that\nservice of any process, summons, notice or document by U.S . registered mail to your address set forth above shall be effective service of process for\nany action, suit or proceeding brought against you in any such court). You hereby irrevocably and unconditionally waive any objection to the laying\nof venue of any action, suit or proceeding arising out of this agreement or the transactions contemplated hereby, in the courts of the State of New\nYork or the United States of America, in each case located in the County of New York, and hereby further irrevocably and unconditionally waive and\nagree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient\nforum.\nThis agreement shall terminate two years after the date hereof.\n6\nIf you are in agreement with the foregoing, please sign and return one copy of this agreement, it being understood that all counterpart copies will\nconstitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nAntony Koblish,\nPresident and Chief Executive Officer\nAccepted and agreed to as of the date hereof;\nStryker Corporation\nBy: /s/ Bryant Zanko\nBryant Zanko\nVice President, Business Development\n7\n[ORTHOVITA, INC. LETTERHEAD]\nFebruary 25, 2011\nBryant Zanko\nVice President, Business Development\nStryker Corporation\n2725 Fairfield Road\nKalamazoo, MI 49002\nDear Bryant:\nReference is made to that certain letter agreement dated as of January 18, 2011 (the “Agreement”) by and between Orthovita, Inc. (the “Company”)\nand Stryker Corporation (“Stryker”) in connection with Stryker’s consideration of a possible negotiated transaction with the Company. Capitalized\nterms used herein and not otherwise defined herein shall have the meanings given to them in the Agreement.\nIn order for Stryker to receive access to a substantial amount of diligence information regarding the Company as part of the next phase of the process\ncontemplated under the Agreement, the Company requires Stryker to amend the Agreement in order to extend the confidentiality period thereunder\napplicable to trade secrets.\nAccordingly, the sentence on the last page of the Agreement that states, “This agreement shall terminate two years after the date hereof,” is amended\nand restated in its entirety to read as follows:\n“This agreement shall terminate two years after the date hereof, provided that the obligations set forth under Use of Evaluation Materials\ninsofar as they relate to the use and disclosure of a trade secret shall continue for so long as such trade secret continues to be a trade secret as\ndefined under 18 U.S.C . §1839(3)(A), (B) (1996), and only if the Company identified the general subject matter of such trade secret to you in\nwriting prior to disclosure to you and gave you the opportunity to decline receipt of such trade secret. Neither the foregoing nor the restrictions\nin this agreement applicable to trade secrets is intended to preclude you from using residual knowledge retained in intangible form in the\nunaided memories of your directors, employees, contractors and advisors as a result of exposure to the Company’s Evaluation Material. The\nCompany acknowledges that you may have in conception or development technology that may be very similar or even identical to the\nCompany’s trade secrets disclosed as part of the Evaluation Material.”\nExcept as specifically provided herein all other terms and conditions of the Agreement shall remain unchanged and in full force and effect.\nIf you are in agreement with the foregoing, please sign and return one copy of this amendment to the Agreement, it being understood that all\ncounterpart copies will constitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nAntony Koblish,\nPresident and Chief Executive Officer\nAccepted and agreed to as of the date hereof:\nStryker Corporation\nBy: /s/ Bryant Zanko\nBryant Zanko\nVice President, Business Development\n2\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is made as of April 27, 2011 by and among Stryker Corporation, a Michigan\ncorporation (collectively with its subsidiaries and Affiliates, “Stryker”); King & Spalding LLP (“K&S”) and Lerner, David, Littenberg, Krumholz &\nMentlik LLP (“LDLKM”), counsel to Stryker (collectively, “the Stryker Advisors”); and Orthovita, Inc., a Pennsylvania corporation (collectively\nwith its subsidiaries and Affiliates, “Orthovita”) (all heretofore named parties are collectively referred to herein as the “Parties”).\nRECITALS\nWHEREAS, Stryker and Orthovita are exploring a possible business relationship, arrangement or transaction with each other (the “Possible\nTransaction”);\nWHEREAS, Stryker and Orthovita entered into a January 18, 2011 letter agreement relating to confidentiality, as amended February 25, 2011\n(the “Existing Confidentiality Agreement”);\nWHEREAS, Stryker has retained the Stryker Advisors to provide legal assistance in connection with the Possible Transaction (the\n“Evaluation”);\nWHEREAS, the Parties wish to facilitate the provision by Orthovita of information and materials to the Stryker Advisors, but also desire to\nensure that appropriate safeguards and restrictions are followed with respect to the transmittal of any such information and materials to the Stryker\nAdvisors.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein, and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:\n1. In order to permit Stryker to conduct the Evaluation, Orthovita or its employees, officers, or other representatives will provide to the Stryker\nAdvisors, orally, in writing, or by other means, the Trade Secret Information (as defined below). The Stryker Advisors agree that they will use the\nTrade Secret Information only for the purposes of the Evaluation and will not share with Stryker or any other person any Trade Secret Information\nexcept in accordance with the terms of this Agreement or as authorized in advance in writing by Orthovita or its representative.\n2. As used in this agreement, the term “Trade Secret Information” means information or materials that have, are related to or reflecting\n(A) collagen processing techniques pertaining to medical grade collagen, Vitagel, Vitastat and other hemostat products, (B) details of the\ncomposition of, exact formulations of raw materials, quality assurance test release criteria and manufacturing processes for Vitoss, Vitoss BA, Vitoss\nFoam Products, Vitoss Flowable Products, Vitoss Elemental, Vitoss BA Bimodal, Vitoss BA2X, Vitagel, Vitastat and BA PEEK, (C) exact method\nof making combeite (heat-treated bioactive glass), (D) sileanation of bioactive\nglass (currently used in Cortoss), (E) details of the Cortoss formulation and manufacturing process.\nTrade Secret Information shall not include, however, information that (i) is or has been made available to Stryker by Orthovita or its representatives\n(provided that this subsection (i) shall not apply to Trade Secret Information made available to Stryker by the Stryker Advisors), (ii) is or becomes\navailable to the public other than as a result of disclosure in breach of this Agreement, or (iii) is or becomes available to Stryker or the Stryker\nAdvisors from a source other than Orthovita or its representatives, provided that, to the best of Stryker’s or a Stryker Advisor’s knowledge, such\nsource is in lawful possession of such information and is not bound by any agreement with Orthovita to keep such information confidential, or\notherwise prohibited from transmitting such information to Stryker or any Stryker Advisor.\n3. Nothing in this Agreement shall (i) prohibit the Stryker Advisors from conducting investigations based on the Trade Secret Information,\nprovided that no source of information under such investigation is known by Stryker or any Stryker Advisor, to the best of its knowledge, to be\nbound by any agreement with Orthovita to keep such information confidential, and otherwise is not prohibited from transmitting such information to\nStryker or any Stryker Advisor, (ii) prohibit the Stryker Advisors from advising Stryker regarding the Stryker Advisors’ opinions based on their\ninvestigations, and the general reasons for its opinions, about any matters for which the Stryker Advisors are engaged to advise Stryker, or\n(iii) require the Stryker Advisors to obtain prior review or approval from Orthovita before rendering such opinions to Stryker.\n4. The Stryker Advisors shall not disclose Trade Secret Information to any third party, including a third party consultant engaged to assist in\nthe Evaluation (a “Consultant”) unless, prior to any such disclosure, such Consultant agrees in writing to be bound by the terms of this Agreement,\nthe Stryker Advisors notify Orthovita of the identity of such Consultant and Orthovita approves in writing the disclosure of Trade Secret Information\nto such Consultant.\n5. To the extent that Stryker inadvertently receives information, whether oral or written, that it reasonably believes constitutes, contains, or\ndiscloses Trade Secret Information, Stryker shall: (i) promptly report such receipt to Orthovita; and (ii) promptly turn over all originals and copies\n(including all electronic copies in any media) of such Trade Secret Information, to the extent it is written, to Orthovita. If confirmed to be Trade\nSecret Information, Stryker agrees to maintain such Trade Secret Information in confidence so long as it remains a trade secret. If not confirmed to\nbe Trade Secret Information, Orthovita shall return all materials turned over by Stryker to the extent that the Evaluation is ongoing.\n6. Upon the request of Orthovita or its representative, and within two (2) weeks after such request (unless another time frame is agreed to in\nwriting by the Parties), the Stryker Advisors shall return all originals and copies of any Trade Secret Information (including all electronic copies in\nany media) to Orthovita and shall destroy all notes, hard copies and electronic copies, that contain or disclose Trade Secret Information, and shall\ncertify as to such destruction to Orthovita in writing.\n2\n7. Each of Stryker and the Stryker Advisors acknowledges that money damages are an inadequate remedy for breach of this Agreement\nbecause of the difficulty of ascertaining the amount of damage that may be suffered in the event that this Agreement is breached and other factors,\nincluding irreparable injury to Orthovita. Therefore, Orthovita shall be entitled to such equitable relief as may be appropriate, including an injunction\nand specific performance, in the event of any breach of the provisions of this Agreement by any other Party, in addition to all other remedies\navailable to Orthovita at law or in equity.\n8.\n(a) This Agreement and all disputes or controversies arising out of or relating to or seeking to enforce this Agreement shall be governed by,\nand construed in accordance with, the internal laws of the State of Delaware, without regard to the laws of any other jurisdiction that\nmight be applied because of the conflicts of laws principles.\n(b) TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, THE PARTIES HERETO\nHEREBY WAIVE AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR\nOTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT TO ANY CLAIM, CAUSE OF ACTION OR\nSUIT (IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT\nMATTER HEREOF. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 8(b)\nWITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT\nTO TRIAL BY JURY.\n9. Nothing herein shall preclude the Stryker Advisors from disclosing any Trade Secret Information, to the extent required by applicable law or\nvalid subpoena provided that, with respect to each of the foregoing and: (i) the Stryker Advisors shall notify Orthovita of the existence, terms and\ncircumstances surrounding such disclosure as far in advance as is reasonably practicable and consult with Orthovita on the advisability of taking\nsteps available under applicable law to resist or narrow the scope of any such compelled disclosure, (ii) the Stryker Advisors shall reasonably\ncooperate with Orthovita in taking any such steps to resist or narrow the scope of any such disclosure as may be requested by Orthovita, (iii) the\nStryker Advisors shall exercise their reasonable best efforts to provide such information on a confidential basis or obtain an order or other assurance\nthat confidential treatment will be accorded to such information, and (iv) the Stryker Advisors shall exercise their reasonable best efforts to permit\nOrthovita or its counsel, at Orthovita’s expense, to attend all depositions and other proceedings pertaining to such disclosure.\n10. The Parties hereby agree that this Agreement shall not be construed in any manner to be an obligation to proceed with the Proposed\nTransaction.\n11. Orthovita shall not use the disclosure of the Trade Secret Information to the Stryker Advisors to disqualify the Stryker Advisors from\nrepresenting Stryker in any matter.\n3\n12. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which taken\ntogether shall be deemed to constitute one and the same agreement.\n13. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in\nwriting and shall be deemed to have been duly given if (i) delivered personally to the recipient, (ii) sent to the recipient by reputable express courier\nservice (charges prepaid) or mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, or (iii) transmitted by\ntelecopy to the recipient with a confirmation copy to follow the next day to be delivered by overnight carrier. Date of service of such notice shall be\n(A) the date such notice is personally delivered, (B) three days after the date of mailing if sent by certified or registered mail, (C) the next business\nday after the date of delivery to the overnight courier if sent by overnight courier or (D) the next business day after the date of transmittal by\ntelecopy. Such notices, demands and other communications shall be sent to the addresses indicated below or to such other address or to the attention\nof such other person as the recipient Party has specified by prior written notice to the sending Party.\n(a) if to Stryker, to\nStryker Corporation\n325 Corporate Drive\nMahwah, NJ 07430\nAttention: Legal Department, Stryker Orthopaedics\nFacsimile: (201) 831-4704\nwith a copy to:\nKing & Spalding LLP\n1700 Pennsylvania Avenue, NW\nWashington, DC 20006\nAttention: Pamela F. Forrest\nFacsimile: (202) 626-3737\nand to:\nLerner, David, Littenberg, Krumholz & Mentlik LLP\n600 South Avenue West\nWestfield, NJ 07090\nAttention: Keith E. Gilman\nFacsimile: (908) 654-7866\n(b) if to Orthovita, to:\nOrthovita, Inc.\n77 Great Valley Parkway\nMalvern, PA 19355\nAttention: General Counsel\nFacsimile: (610) 640-2603\n4\n14.\n(a) No failure or delay by any Party in exercising any right, power or privilege hereunder will operate as a wavier thereof, nor will any\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder.\n(b) This Agreement and the Existing Confidentiality Agreement (which shall remain in full force and effect) embody the entire agreement\nand understanding of the Parties with respect to the subject matter hereof and supersede all prior discussions, negotiations, agreements\nand understandings among the Parties with respect to the subject matter hereof and thereof.\n(c) This Agreement supplements but does not replace or supersede any prior agreements between the parties relating to the exchange of\nconfidential information in connection with the Possible Transaction, including the Existing Confidentiality Agreement.\n(d) This Agreement may be amended only by a writing signed by all Parties hereto.\n(e) No Party may assign this Agreement or any of its rights hereunder without the written consent of the other Parties, without the prior\nexpress written approval of the other Parties. This Agreement shall be binding and inure to the benefit of the Parties, and their respective\nsuccessors and assigns.\n15. For purposes of this Agreement, “Affiliate(s)” means, as to any person(s) or entity(ies), that directly or indirectly through on or more\nintermediaries, controls, is controlled by, or is under common control with, person(s) or entity(ies). Each Party shall cause each of its controlled\nAffiliates to comply with the terms of this Agreement as if such controlled Affiliate were a Party hereto.\n16. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction,\nthen the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is so declared\nillegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest\nextent permitted by applicable law.\n5\nIN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above.\nSTRYKER CORPORATION\nORTHOVITA, INC.\nBy: /s/ Bryant Zanko\nBy: /s/ Antony Koblish\nName: Bryant Zanko\nName: Antony Koblish\nTitle: VP, Business Development\nTitle: President and CEO\nKING & SPALDING LLP\nLERNER DAVID LITTENBERG\nKRUMHOLZ & MENTLIK LLP\nBy: /s/ Pamela F. Forrest\nBy: /s/ Keith E. Gilman\nName: Pamela F. Forrest\nName: Keith E. Gilman\nTitle: Partner\nTitle: Partner\n6\n[ORTHOVITA, INC. LETTERHEAD]\nMay 8, 2011\nBryant Zanko\nVice President, Business Development\nStryker Corporation\n2725 Fairfield Road\nKalamazoo, MI 49002\nDear Bryant:\nReference is made to that certain letter agreement dated as of January 18, 2011 by and between Orthovita, Inc. (the “Company”) and Stryker\nCorporation (“Stryker”), as amended on February 25, 2011 (the “Agreement”). Capitalized terms used herein and not otherwise defined herein shall\nhave the meanings given to them in the Agreement.\nStryker has requested that Orthovita disclose certain trade secrets to certain of its employees (the “Stryker Trade Secret Recipients” as set forth\nbelow) as part of the evaluation of a possible negotiated transaction between the parties. By execution and delivery of this letter, Stryker agrees that\nthe Stryker Trade Secret Recipients may receive access to the trade secrets described below, which trade secrets are included within the definition of\nEvaluation Materials under the Agreement:\nInformation or materials that have, are related to or reflect processing techniques pertaining to pepsinized, soluable collagen and/or pepsinized,\nsoluable collagen in solution with thrombin.\nThe “Stryker Trade Secret Recipients” are: William Cymbaluk, Vice President of Clinical/Quality/Regulatory Affairs; Anthony Faucette, Sr.\nManager, Sterilization Sciences; Rod Parker, Sr. Clinical Sciences Manager; and Leisel Masson, Sr. Microbiologist.\nStryker further agrees that it shall inform the Stryker Trade Secret Recipients of the confidential nature of the trade secrets described herein and shall\nbe directed by Stryker, and shall have agreed or shall otherwise be bound by an obligation, to treat such information confidential in accordance with\nthe Agreement.\nExcept as specifically provided herein all other terms and conditions of the Agreement shall remain unchanged and in full force and effect.\nIf you are in agreement with the foregoing, please sign and return one copy of this letter.\nVery truly yours,\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nAntony Koblish,\nPresident and Chief Executive Officer\nAccepted and agreed to as of the date hereof:\nStryker Corporation\nBy: /s/ Bryant Zanko\nBryant Zanko\nVice President, Business Development\n2	EX-99.(E)(2) 3 dex99e2.htm CONFIDENTIALITY AGREEMENT\nExhibit ()(2)\n[ORTHOVITA LETTERHEAD]\nJanuary 18, 2011\nBryant Zanko\nVice President, Business Development\nStryker Corporation\n2725 Fairfield Road\nKalamazoo, MI 49002\nDear Bryant:\n3«\nYou have requested information regarding Orthovita, Inc. (the “Company”, “us” or “we”) in connection with your consideration of a possible\nnegotiated transaction with the Company (a “Possible Transaction”). For purposes of this agreement, the term “Company” includes the Company\nand its subsidiaries taken as a whole or any business or businesses thereof. In consideration of our furnishing you with the Evaluation Materials (as\ndefined below) you agree as follows:\nConfidentiality of Evaluation Materials\nYou will treat confidentially any information (whether written or oral) that either we or our financial advisor, J.P. Morgan Securities LLC (the\n“Financial Advisor”), or our other representatives furnish to you in connection with a Possible Transaction involving the Company, whether\nfurnished before or after the date of this agreement and regardless of the manner in which it is furnished, together with analyses, compilations,\nstudies or other documents prepared by you, or by your representatives (as defined hereinafter) which contain or otherwise reflect such information\nor your review of, or interest in, the Company (collectively, the “Evaluation Materials”).\nThe term “Evaluation Materials” includes information furnished to you orally or in writing (whatever the form or storage medium) or gathered by\ninspection, and regardless of whether such information is specifically identified as “confidential” including, but not limited to, all conversations,\nmeetings, negotiations, discussions, internal memoranda, documents and notes involving the Company and the Possible Transaction. The term\n“Evaluation Materials” does not include information which (i) is or becomes generally available to you or the public other than as a result of a\ndisclosure by you or your representatives, (ii) was or becomes available to you on a non-confidential basis from a source other than the Company or\nits representatives, provided that to your knowledge, after due inquiry, such source is not prohibited from disclosing such information to you by a\ncontractual, legal or fiduciary obligation to the Company or its representatives or (iii) is independently developed by you without violating your\nobligations hereunder.\nUse of Evaluation Materials\nYou will not use any of the Evaluation Materials for any purpose other than the exclusive purpose of evaluating a Possible Transaction. Except as\nrequired by law, you and your representatives will keep the Evaluation Materials confidential; provided, however, that (i) such information may be\ndisclosed to those of your directors, officers, employees, affiliates, agents and representatives (including attorneys, accountants and financial\nadvisors), lenders and other sources of debt financing (collectively, “your representatives”) who need to know such information for the purpose of\nevaluating a Possible Transaction between you and the Company (it being understood that your representatives shall be informed by you of the\nconfidential nature of such information and shall be directed by you to treat such information as confidential in accordance with this agreement and\nshall be under obligations of confidentiality with respect to such information) and (ii) any other disclosure of such information may only be made if\nthe Company consents in writing prior to any such disclosure. Without limiting the generality of the foregoing, in the event that a Possible\nTransaction is not consummated, neither you nor your representatives shall use any of the Evaluation Materials for any purpose. You will be\nresponsible for any breach of this agreement by you or your representatives.\nYou hereby acknowledge that the Company is a publicly traded company. You further hereby acknowledge that you are aware, and that you will\nadvise your representatives who are informed as to the matters which are the subject of this agreement, that the United States securities laws prohibit\nany person who has received from an issuer material, non-public information from purchasing or selling securities of such issuer or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor sell such securities.\nIf you become aware of any unauthorized disclosure or use of any Evaluation Materials, you hereby covenant to promptly notify the Company.\nMoreover, upon the request of the Company, you shall cooperate in assisting the Company in terminating or preventing any third parties from\ndisseminating or using the Evaluation Materials.\nIn the event that you or any of your representatives receive a request or are required (by deposition, interrogatory, request for documents, subpoena,\ncivil investigative demand or similar process) to disclose all or any part of the Evaluation Materials, you or your representatives, as the case may be,\nhereby agree to (i) immediately notify the Company of the existence, terms and circumstances surrounding such request, (ii) unless to the extent\nlegally impracticable, consult with the Company on the advisability of taking legally available steps to resist or narrow such request and (iii) unless\nto the extent legally impracticable, afford the Company with the opportunity to seek a protective order or other appropriate remedy. If your or your\nrepresentatives’ counsel advises that you or your representatives are legally compelled to disclose the Evaluation Materials to any person, (i) you or\nyour representatives, as the case may be, may, without liability hereunder, disclose to such person only that portion of the Evaluation Materials\nwhich your counsel advised you is legally required to be disclosed. You agree to cooperate with the Company, at the Company’s expense, to obtain\nassurance that confidential treatment will be accorded such Evaluation Materials.\n2\nNon-Disclosure\nThe disclosure of your possible interest in a Possible Transaction could have a material adverse effect on the Company and its business if for any\nreason an agreement of purchase and sale is not consummated or a disclosure is made prior to the closing of a Possible Transaction. Accordingly,\nunless required by applicable law or regulatory authority, you agree that prior to the closing of a Possible Transaction, without the prior written\nconsent of the Company, you will not, and you will direct your representatives not to, disclose to any person the fact that the Evaluation Materials\nhave been made available to you, discussions or negotiations have taken or are taking place concerning a Possible Transaction between the Company\nand you or any of the terms, conditions or other facts with respect to any such Possible Transaction, including the status thereof. The term “person”\nas used in this agreement shall be broadly interpreted to include, without limitation, the media, any corporation or limited liability company, the\nCompany, governmental agency or body, stock exchange, partnership, association or individual.\nOwnership and Return of Evaluation Materials\nAll Evaluation Materials disclosed by or on behalf of the Company shall be and shall remain in the property of the Company. Upon the Company’s\nrequest, you shall promptly deliver to the Company or destroy all written Evaluation Materials without retaining, in whole or in part, any copies,\nextracts or other reproductions (whatever the form or storage medium) of such materials, and shall certify the delivery or destruction, as applicable,\nof all such materials in writing to the Company; provided that economic analyses, privileged communication with your counsel and other proprietary\ndocumentation shall not be required to be delivered to the Company but shall be destroyed as set forth in this sentence and provided further that you\nmay retain one copy of the Evaluation Materials in a secure location within your Legal Department. Notwithstanding the return or destruction of the\nEvaluation Materials, you and your representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder.\nNo Unauthorized Contact or Solicitation\nDuring the course of your evaluation, all inquiries and other communications are to be made directly to the Financial Advisor or employees or\nrepresentatives of the Company specified by the Financial Advisor. Accordingly, except as set forth in the preceding sentence, you agree not to\ndirectly or indirectly contact or communicate with any executive or other employee of the Company (in their capacities as officers or employees of\nthe Company) concerning a Possible Transaction, or to seek any information in connection therewith from such person, without the express written\nconsent of the Financial Advisor. You also agree not to discuss with or offer to any third party any equity participation in a Possible Transaction or\nany other form of joint acquisition by you and such third party without the prior written consent of the Company.\nWithout the Company’s prior written consent, you will not for a period of eighteen months after the date of this agreement directly or indirectly\nsolicit for employment any person who is now employed by the Company in an executive-level position, or any person who is now employed by the\nCompany in a management-level position at the Company’s headquarters in Malvern, Pennsylvania, provided that you are not prohibited from\nemploying any such person who contacts you on his or her own initiative and without any direct or indirect solicitation by you\n3\nand the term “solicit for employment” shall not be deemed to include general solicitations of employment not specifically directed toward employees\nof the Company.\nStandstill\nYou agree that until eighteen months after the date of this agreement, you will not without the prior approval of the Board of Directors of the\nCompany (i) acquire or make any proposal to acquire any securities or property of the Company or to acquire any ability to exercise voting or\ndispositive power with respect to any securities of the Company, (ii) propose to enter into any merger or business combination involving the\nCompany or purchase a material portion of the assets of the Company, (iii) make or participate in any solicitation of proxies to vote, or seek to advise\nor influence any person with respect to the voting of any securities of the Company, (iv) form, join or participate in a “group” (within the meaning of\nSection 13(d)(3) of the Securities Exchange Act of 1934, as amended), with respect to any voting securities of the Company, (v) otherwise act or\nseek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement\ninconsistent with the foregoing or (vii) take any action which might require the Company to make a public announcement regarding the possibility of\na business combination or merger. You also agree during such period not to request the Company (or its directors, officers, employees, agents or\nrepresentatives) to amend or waive any provision of this paragraph unless specifically invited to do so by the Board of Directors of the Company.\nNotwithstanding the restrictions in this paragraph, after the Company has announced that it has entered into a definitive written agreement with a\nthird party with respect to a business combination transaction that, if consummated, would result in a transfer of corporate control of the Company,\nyou may make an acquisition proposal to the Company’s Board of Directors.\nNo Representation or Warranty\nYou acknowledge and agree that none of the Company, the Financial Advisor, or any of their respective representatives or agents is making any\nrepresentation or warranty, expressed or implied, as to the accuracy or completeness of the Evaluation Materials, and none of the Company, the\nFinancial Advisor, or any of their respective representatives or agents, nor any of their respective officers, directors, employees, representatives,\nstockholders, owners, affiliates, advisors or agents, will have any liability to you or any other person resulting from the use of Evaluation Materials\nby you or any of your representatives. Furthermore, nothing contained herein shall constitute an obligation on the part of the Company, the Financial\nAdvisor, or any of their respective representatives or agents to provide Evaluation Materials or to update any Evaluation Materials provided\nhereunder. Only those representations or warranties that are made to you in a definitive agreement for the Possible Transaction (“Definitive\nAgreement”) when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement, will\nhave any legal effect. For purposes of this agreement, the term “Definitive Agreement” does not include an executed non-binding letter of intent or\nany other non-binding written agreement, nor does it include any oral acceptance of an offer or bid by you.\nYou also acknowledge and agree that no contract or agreement providing for the sale of the Company or any interest in the Company shall be\ndeemed to exist between you and the Company unless and until a Definitive Agreement has been executed and delivered by you and each of the\n4\nother parties thereto, and you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with the sale of\nthe Company or any interest in the Company unless and until a Definitive Agreement has been executed and delivered by you and each of the other\nparties thereto. You also agree that unless and until a Definitive Agreement between the Company and you with respect to the acquisition of the\nCompany or any interest in the Company has been executed and delivered by you and each of the other parties thereto, there shall not be any legal\nobligation of any kind whatsoever with respect to any such transaction by virtue of this agreement or any other written or oral expression with\nrespect to such transaction except, in the case of this agreement, for the matters specifically agreed to herein.\nYou further understand and agree that (i) the Company and the Financial Advisor shall be free to conduct any process for the sale of the Company or\nany interest in the Company as they in their sole discretion shall determine (including, without limitation, negotiating with any prospective\ncounterparty and entering into a Definitive Agreement without prior notice to you or to any other person), (ii) any procedures relating to such sale\nmay be changed at any time without notice to you or any other person and (iii) you shall not have any claims whatsoever against the Company, the\nFinancial Advisor or any of their respective directors, officers, employees, stockholders, owners, affiliates, agents or representatives arising out of or\nrelating to a Possible Transaction involving the Company. You further understand and agree that the Company reserves the right, in its sole\ndiscretion, to reject any and all proposals made by you or any of your representatives with regard to any Possible Transaction, and to terminate\ndiscussions and negotiations with you at any time. Neither this paragraph nor any other provision in this agreement can be waived or amended\nexcept by written consent of the Company, which consent shall specifically refer to this paragraph (or such provision) and explicitly make such\nwaiver or amendment.\nLegal Remedy\nYou understand and agree that money damages would not be a sufficient remedy for any breach of this agreement by you or your representatives and\nthat the Company will be entitled to specific performance and injunctive relief as remedies for any such breach. Such remedies shall not be deemed\nto be the exclusive remedies for a breach of this agreement by you or your representatives but shall be in addition to all other remedies available at\nlaw or equity. In the event of litigation relating to this agreement, if a court of competent jurisdiction determines that you or your representatives\nhave breached this agreement, then you shall reimburse the Company for its reasonable legal fees and expenses incurred in connection with such\nlitigation, including any appeals therefrom. Similarly, if a court of competent jurisdiction determines that you and/or your representatives did not\nbreach this agreement, then the Company shall reimburse you and/or your representatives for your reasonable legal fees and expenses incurred in\nconnection with such litigation, including any appeals therefrom.\nOther\nThis agreement constitutes the entire agreement between the parties hereto regarding the subject matter hereof. This agreement may be changed only\nby a written agreement signed by the parties hereto or their authorized representatives.\n5\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, you and the Company understand and agree\nthat you and the Company have a commonality of interest with respect to such matters and it is the Company’s and your desire, intention and mutual\nunderstanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or\nits continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided\nthat is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such\nprotection under these privileges, this agreement, and under the joint defense doctrine.\nIf any term or provision of this agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms\nand provisions of this agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.\nThe parties understand and agree that no failure or delay by the other party in exercising any right, power or privilege under this agreement shall\noperate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege\nhereunder.\nThis agreement shall be governed by and construed in accordance with the laws of the State of New York. You also hereby irrevocably and\nunconditionally consent to submit to the exclusive jurisdiction of the courts of the State of New York and the United States of America, in each case\nlocated in the County of New York, for any actions, suits or proceedings arising out of or relating to this agreement and the transactions\ncontemplated hereby (and you agree not to commence any action, suit or proceeding relating thereto except in such courts, and further agree that\nservice of any process, summons, notice or document by U.S. registered mail to your address set forth above shall be effective service of process for\nany action, suit or proceeding brought against you in any such court). You hereby irrevocably and unconditionally waive any objection to the laying\nof venue of any action, suit or proceeding arising out of this agreement or the transactions contemplated hereby, in the courts of the State of New\nYork or the United States of America, in each case located in the County of New York, and hereby further irrevocably and unconditionally waive and\nagree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient\nforum.\nThis agreement shall terminate two years after the date hereof.\nIf you are in agreement with the foregoing, please sign and return one copy of this agreement, it being understood that all counterpart copies will\nconstitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nAntony Koblish,\nPresident and Chief Executive Officer\nAccepted and agreed to as of the date hereof;\nStryker Corporation\nBy: /s/ Bryant Zanko\nBryant Zanko\nVice President, Business Development\n[ORTHOVITA, INC. LETTERHEAD]\nFebruary 25, 2011\nBryant Zanko\nVice President, Business Development\nStryker Corporation\n2725 Fairfield Road\nKalamazoo, MI 49002\nDear Bryant:\nReference is made to that certain letter agreement dated as of January 18, 2011 (the “Agreement”) by and between Orthovita, Inc. (the “Company”)\nand Stryker Corporation (“Stryker”) in connection with Stryker’s consideration of a possible negotiated transaction with the Company. Capitalized\nterms used herein and not otherwise defined herein shall have the meanings given to them in the Agreement.\nIn order for Stryker to receive access to a substantial amount of diligence information regarding the Company as part of the next phase of the process\ncontemplated under the Agreement, the Company requires Stryker to amend the Agreement in order to extend the confidentiality period thereunder\napplicable to trade secrets.\nAccordingly, the sentence on the last page of the Agreement that states, “This agreement shall terminate two years after the date hereof,” is amended\nand restated in its entirety to read as follows:\n“This agreement shall terminate two years after the date hereof, provided that the obligations set forth under Use of Evaluation Materials\ninsofar as they relate to the use and disclosure of a trade secret shall continue for so long as such trade secret continues to be a trade secret as\ndefined under 18 U.S.C. §1839(3)(A), (B) (1996), and only if the Company identified the general subject matter of such trade secret to you in\nwriting prior to disclosure to you and gave you the opportunity to decline receipt of such trade secret. Neither the foregoing nor the restrictions\nin this agreement applicable to trade secrets is intended to preclude you from using residual knowledge retained in intangible form in the\nunaided memories of your directors, employees, contractors and advisors as a result of exposure to the Company’s Evaluation Material. The\nCompany acknowledges that you may have in conception or development technology that may be very similar or even identical to the\nCompany’s trade secrets disclosed as part of the Evaluation Material.”\nExcept as specifically provided herein all other terms and conditions of the Agreement shall remain unchanged and in full force and effect.\nIf you are in agreement with the foregoing, please sign and return one copy of this amendment to the Agreement, it being understood that all\ncounterpart copies will constitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nAntony Koblish,\nPresident and Chief Executive Officer\nAccepted and agreed to as of the date hereof:\nStryker Corporation\nBy: /s/ Bryant Zanko\nBryant Zanko\nVice President, Business Development\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is made as of April 27, 2011 by and among Stryker Corporation, a Michigan\ncorporation (collectively with its subsidiaries and Affiliates, “Stryker”); King & Spalding LLP (“K&S”) and Lerner, David, Littenberg, Krumholz &\nMentlik LLP (“LDLKM?”), counsel to Stryker (collectively, “the Stryker Advisors”); and Orthovita, Inc., a Pennsylvania corporation (collectively\nwith its subsidiaries and Affiliates, “Orthovita”) (all heretofore named parties are collectively referred to herein as the “Parties”).\nRECITALS\nWHEREAS, Stryker and Orthovita are exploring a possible business relationship, arrangement or transaction with each other (the “Possible\nTransaction”);\nWHEREAS, Stryker and Orthovita entered into a January 18, 2011 letter agreement relating to confidentiality, as amended February 25, 2011\n(the “Existing Confidentiality Agreement”);\nWHEREAS, Stryker has retained the Stryker Advisors to provide legal assistance in connection with the Possible Transaction (the\n“Evaluation”);\nWHEREAS, the Parties wish to facilitate the provision by Orthovita of information and materials to the Stryker Advisors, but also desire to\nensure that appropriate safeguards and restrictions are followed with respect to the transmittal of any such information and materials to the Stryker\nAdvisors.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein, and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:\n1. In order to permit Stryker to conduct the Evaluation, Orthovita or its employees, officers, or other representatives will provide to the Stryker\nAdvisors, orally, in writing, or by other means, the Trade Secret Information (as defined below). The Stryker Advisors agree that they will use the\nTrade Secret Information only for the purposes of the Evaluation and will not share with Stryker or any other person any Trade Secret Information\nexcept in accordance with the terms of this Agreement or as authorized in advance in writing by Orthovita or its representative.\n2. As used in this agreement, the term “Trade Secret Information” means information or materials that have, are related to or reflecting\n(A) collagen processing techniques pertaining to medical grade collagen, Vitagel, Vitastat and other hemostat products, (B) details of the\ncomposition of, exact formulations of raw materials, quality assurance test release criteria and manufacturing processes for Vitoss, Vitoss BA, Vitoss\nFoam Products, Vitoss Flowable Products, Vitoss Elemental, Vitoss BA Bimodal, Vitoss BA2X, Vitagel, Vitastat and BA PEEK, (C) exact method\nof making combeite (heat-treated bioactive glass), (D) sileanation of bioactive\nglass (currently used in Cortoss), (E) details of the Cortoss formulation and manufacturing process.\nTrade Secret Information shall not include, however, information that (i) is or has been made available to Stryker by Orthovita or its representatives\n(provided that this subsection (i) shall not apply to Trade Secret Information made available to Stryker by the Stryker Advisors), (ii) is or becomes\navailable to the public other than as a result of disclosure in breach of this Agreement, or (iii) is or becomes available to Stryker or the Stryker\nAdvisors from a source other than Orthovita or its representatives, provided that, to the best of Stryker’s or a Stryker Advisor’s knowledge, such\nsource is in lawful possession of such information and is not bound by any agreement with Orthovita to keep such information confidential, or\notherwise prohibited from transmitting such information to Stryker or any Stryker Advisor.\n3. Nothing in this Agreement shall (i) prohibit the Stryker Advisors from conducting investigations based on the Trade Secret Information,\nprovided that no source of information under such investigation is known by Stryker or any Stryker Advisor, to the best of its knowledge, to be\nbound by any agreement with Orthovita to keep such information confidential, and otherwise is not prohibited from transmitting such information to\nStryker or any Stryker Advisor, (ii) prohibit the Stryker Advisors from advising Stryker regarding the Stryker Advisors’ opinions based on their\ninvestigations, and the general reasons for its opinions, about any matters for which the Stryker Advisors are engaged to advise Stryker, or\n(iii) require the Stryker Advisors to obtain prior review or approval from Orthovita before rendering such opinions to Stryker.\n4. The Stryker Advisors shall not disclose Trade Secret Information to any third party, including a third party consultant engaged to assist in\nthe Evaluation (a “Consultant”) unless, prior to any such disclosure, such Consultant agrees in writing to be bound by the terms of this Agreement,\nthe Stryker Advisors notify Orthovita of the identity of such Consultant and Orthovita approves in writing the disclosure of Trade Secret Information\nto such Consultant.\n5. To the extent that Stryker inadvertently receives information, whether oral or written, that it reasonably believes constitutes, contains, or\ndiscloses Trade Secret Information, Stryker shall: (i) promptly report such receipt to Orthovita; and (ii) promptly turn over all originals and copies\n(including all electronic copies in any media) of such Trade Secret Information, to the extent it is written, to Orthovita. If confirmed to be Trade\nSecret Information, Stryker agrees to maintain such Trade Secret Information in confidence so long as it remains a trade secret. If not confirmed to\nbe Trade Secret Information, Orthovita shall return all materials turned over by Stryker to the extent that the Evaluation is ongoing.\n6. Upon the request of Orthovita or its representative, and within two (2) weeks after such request (unless another time frame is agreed to in\nwriting by the Parties), the Stryker Advisors shall return all originals and copies of any Trade Secret Information (including all electronic copies in\nany media) to Orthovita and shall destroy all notes, hard copies and electronic copies, that contain or disclose Trade Secret Information, and shall\ncertify as to such destruction to Orthovita in writing.\n7. Each of Stryker and the Stryker Advisors acknowledges that money damages are an inadequate remedy for breach of this Agreement\nbecause of the difficulty of ascertaining the amount of damage that may be suffered in the event that this Agreement is breached and other factors,\nincluding irreparable injury to Orthovita. Therefore, Orthovita shall be entitled to such equitable relief as may be appropriate, including an injunction\nand specific performance, in the event of any breach of the provisions of this Agreement by any other Party, in addition to all other remedies\navailable to Orthovita at law or in equity.\n8.\n(a) This Agreement and all disputes or controversies arising out of or relating to or seeking to enforce this Agreement shall be governed by,\nand construed in accordance with, the internal laws of the State of Delaware, without regard to the laws of any other jurisdiction that\nmight be applied because of the conflicts of laws principles.\n(b) TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, THE PARTIES HERETO\nHEREBY WAIVE AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR\nOTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT TO ANY CLAIM, CAUSE OF ACTION OR\nSUIT (IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT\nMATTER HEREOF. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 8(b)\nWITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT\nTO TRIAL BY JURY.\n9. Nothing herein shall preclude the Stryker Advisors from disclosing any Trade Secret Information, to the extent required by applicable law or\nvalid subpoena provided that, with respect to each of the foregoing and: (i) the Stryker Advisors shall notify Orthovita of the existence, terms and\ncircumstances surrounding such disclosure as far in advance as is reasonably practicable and consult with Orthovita on the advisability of taking\nsteps available under applicable law to resist or narrow the scope of any such compelled disclosure, (ii) the Stryker Advisors shall reasonably\ncooperate with Orthovita in taking any such steps to resist or narrow the scope of any such disclosure as may be requested by Orthovita, (iii) the\nStryker Advisors shall exercise their reasonable best efforts to provide such information on a confidential basis or obtain an order or other assurance\nthat confidential treatment will be accorded to such information, and (iv) the Stryker Advisors shall exercise their reasonable best efforts to permit\nOrthovita or its counsel, at Orthovita’s expense, to attend all depositions and other proceedings pertaining to such disclosure.\n10. The Parties hereby agree that this Agreement shall not be construed in any manner to be an obligation to proceed with the Proposed\nTransaction.\n11. Orthovita shall not use the disclosure of the Trade Secret Information to the Stryker Advisors to disqualify the Stryker Advisors from\nrepresenting Stryker in any matter.\n12. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which taken\ntogether shall be deemed to constitute one and the same agreement.\n13. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in\nwriting and shall be deemed to have been duly given if (i) delivered personally to the recipient, (ii) sent to the recipient by reputable express courier\nservice (charges prepaid) or mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, or (iii) transmitted by\ntelecopy to the recipient with a confirmation copy to follow the next day to be delivered by overnight carrier. Date of service of such notice shall be\n(A) the date such notice is personally delivered, (B) three days after the date of mailing if sent by certified or registered mail, (C) the next business\nday after the date of delivery to the overnight courier if sent by overnight courier or (D) the next business day after the date of transmittal by\ntelecopy. Such notices, demands and other communications shall be sent to the addresses indicated below or to such other address or to the attention\nof such other person as the recipient Party has specified by prior written notice to the sending Party.\n(a) if to Stryker, to\nStryker Corporation\n325 Corporate Drive\nMahwah, NJ 07430\nAttention: Legal Department, Stryker Orthopaedics\nFacsimile: (201) 831-4704\nwith a copy to:\nKing & Spalding LLP\n1700 Pennsylvania Avenue, NW\nWashington, DC 20006\nAttention: Pamela F. Forrest\nFacsimile: (202) 626-3737\nand to:\nLerner, David, Littenberg, Krumholz & Mentlik LLP\n600 South Avenue West\nWestfield, NJ 07090\nAttention: Keith E. Gilman\nFacsimile: (908) 654-7866\n(b) if to Orthovita, to:\nOrthovita, Inc.\n77 Great Valley Parkway\nMalvern, PA 19355\nAttention: General Counsel\nFacsimile: (610) 640-2603\n14. (a)\n(b)\n()\n(d)\n(e)\nNo failure or delay by any Party in exercising any right, power or privilege hereunder will operate as a wavier thereof, nor will any\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder.\nThis Agreement and the Existing Confidentiality Agreement (which shall remain in full force and effect) embody the entire agreement\nand understanding of the Parties with respect to the subject matter hereof and supersede all prior discussions, negotiations, agreements\nand understandings among the Parties with respect to the subject matter hereof and thereof.\nThis Agreement supplements but does not replace or supersede any prior agreements between the parties relating to the exchange of\nconfidential information in connection with the Possible Transaction, including the Existing Confidentiality Agreement.\nThis Agreement may be amended only by a writing signed by all Parties hereto.\nNo Party may assign this Agreement or any of its rights hereunder without the written consent of the other Parties, without the prior\nexpress written approval of the other Parties. This Agreement shall be binding and inure to the benefit of the Parties, and their respective\nsuccessors and assigns.\n15. For purposes of this Agreement, “Affiliate(s)” means, as to any person(s) or entity(ies), that directly or indirectly through on or more intermediaries, controls, is controlled by, or is under common control with, person(s) or entity(ies). Each Party shall cause each of its controlled Affiliates to comply with the terms of this Agreement as if such controlled Affiliate were a Party hereto. 16. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.\fIN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above. STRYKER CORPORATION By:\n/s/ Bryant Zanko\nName: Bryant Zanko Title:\nVP, Business Development\nKING & SPALDING LLP By:\n/s/ Pamela F. Forrest\nName: Pamela F. Forrest Title:\nPartner\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nName: Antony Koblish\nTitle: President and CEO\nLERNER DAVID LITTENBERG\nKRUMHOLZ & MENTLIK LLP\nBy: /s/ Keith E. Gilman\nName: Keith E. Gilman\nTitle: Partner\n[ORTHOVITA, INC. LETTERHEAD]\nMay 8, 2011\nBryant Zanko\nVice President, Business Development\nStryker Corporation\n2725 Fairfield Road\nKalamazoo, MI 49002\nDear Bryant:\nReference is made to that certain letter agreement dated as of January 18, 2011 by and between Orthovita, Inc. (the “Company”) and Stryker\nCorporation (“Stryker”), as amended on February 25, 2011 (the “Agreement”). Capitalized terms used herein and not otherwise defined herein shall\nhave the meanings given to them in the Agreement.\nStryker has requested that Orthovita disclose certain trade secrets to certain of its employees (the “Stryker Trade Secret Recipients” as set forth\nbelow) as part of the evaluation of a possible negotiated transaction between the parties. By execution and delivery of this letter, Stryker agrees that\nthe Stryker Trade Secret Recipients may receive access to the trade secrets described below, which trade secrets are included within the definition of\nEvaluation Materials under the Agreement:\nInformation or materials that have, are related to or reflect processing techniques pertaining to pepsinized, soluable collagen and/or pepsinized,\nsoluable collagen in solution with thrombin.\nThe “Stryker Trade Secret Recipients” are: William Cymbaluk, Vice President of Clinical/Quality/Regulatory Affairs; Anthony Faucette, Sr.\nManager, Sterilization Sciences; Rod Parker, Sr. Clinical Sciences Manager; and Leisel Masson, Sr. Microbiologist.\nStryker further agrees that it shall inform the Stryker Trade Secret Recipients of the confidential nature of the trade secrets described herein and shall\nbe directed by Stryker, and shall have agreed or shall otherwise be bound by an obligation, to treat such information confidential in accordance with\nthe Agreement.\nExcept as specifically provided herein all other terms and conditions of the Agreement shall remain unchanged and in full force and effect.\nIf you are in agreement with the foregoing, please sign and return one copy of this letter.\nVery truly yours,\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nAntony Koblish,\nPresident and Chief Executive Officer\nAccepted and agreed to as of the date hereof:\nStryker Corporation\nBy: /s/ Bryant Zanko\nBryant Zanko\nVice President, Business Development	X-99.(E)(2) 3 dex99e2.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(2)\n[ORTHOVITA LETTERHEAD]\nJanuary 18, 2011\nBryant Zanko\nVice President, Business Development\nStryker Corporation\n2725 Fairfield Road\nKalamazoo, MI 49002\nDear Bryant:\nYou have requested information regarding Orthovita, Inc. (the "Company", "us" or "we") in connection with your consideration of a possible\nnegotiated transaction with the Company (a "Possible Transaction"). For purposes of this agreement, the term "Company" includes the Company\nand its subsidiaries taken as a whole or any business or businesses thereof. In consideration of our furnishing you with the Evaluation Materials (as\ndefined below) you agree as follows:\nConfidentiality. of Evaluation Materials\nYou will treat confidentially any information (whether written or oral) that either we or our financial advisor, J.P. Morgan Securities LLC (the\n"Financial Advisor"), or our other representatives furnish to you in connection with a Possible Transaction involving the Company, whether\nfurnished before or after the date of this agreement and regardless of the manner in which it is furnished, together with analyses, compilations,\nstudies or other documents prepared by you, or by your representatives (as defined hereinafter) which contain or otherwise reflect such information\nor your review of, or interest in, the Company (collectively, the "Evaluation Materials").\nThe term "Evaluation Materials" includes information furnished to you orally or in writing (whatever the form or storage medium) or gathered by\ninspection, and regardless of whether such information is specifically identified as "confidential" including, but not limited to, all conversations,\nmeetings, negotiations, discussions, internal memoranda, documents and notes involving the Company and the Possible Transaction. The term\ndisclosure by you or your representatives, (ii) was or becomes available to you on a non-confidential basis from a source other than the Company\n"Evaluation Materials" does not include information which (i) is or becomes generally available to you or the public other than as a result of a or\nits representatives, provided that to your knowledge, after due inquiry, such source is not prohibited from disclosing such information to you by a\ncontractual, legal or fiduciary obligation to the Company or its representatives or (iii) is independently developed by you without violating your\nobligations hereunder.\nUse of Evaluation Materials\nYou will not use any of the Evaluation Materials for any purpose other than the exclusive purpose of evaluating a Possible Transaction. Except as\nrequired by law, you and your representatives will keep the Evaluation Materials confidential; provided, however, that (i) such information may be\ndisclosed to those of your directors, officers, employees, affiliates, agents and representatives (including attorneys, accountants and financial\nadvisors), lenders and other sources of debt financing (collectively, "your representatives") who need to know such information for the purpose of\nevaluating a Possible Transaction between you and the Company (it being understood that your representatives shall be informed by you of the\nconfidential nature of such information and shall be directed by you to treat such information as confidentia in accordance with this agreement and\nshall be under obligations of confidentiality with respect to such information) and (ii) any other disclosure of such information may only be made if\nthe Company consents in writing prior to any such disclosure. Without limiting the generality of the foregoing, in the event that a Possible\nTransaction is not consummated, neither you nor your representatives shall use any of the Evaluation Materials for any purpose. You will\nbe\nresponsible for any breach of this agreement by you or your representatives.\nYou hereby acknowledge that the Company is a publicly traded company. You further hereby acknowledge that you are aware, and that you will\nadvise your representatives who are informed as to the matters which are the subject of this agreement, that the United States securities laws prohibit\nany person who has received from an issuer material, non-public information from purchasing or selling securities of such issuer or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor sell such securities.\nIf you become aware of any unauthorized disclosure or use of any Evaluation Materials, you hereby covenant to promptly notify the Company.\nMoreover, upon the request of the Company, you shall cooperate in assisting the Company in terminating or preventing any third parties\nfrom\ndisseminating or using the Evaluation Materials.\nIn the event that you or any of your representatives receive a request or are required (by deposition, interrogatory, request for documents, subpoena,\ncivil investigative demand or similar process) to disclose all or any part of the Evaluation Materials, you or your representatives, as the case may be,\nhereby agree to (i) immediately notify the Company of the existence, terms and circumstances surrounding such request, (ii) unless to the extent\nlegally impracticable, consult with the Company on the advisability of taking legally available steps to resist or narrow such request and (iii) unless\nto the extent legally impracticable, afford the Company with the opportunity to seek a protective order or other appropriate remedy. If your or your\nrepresentatives' counsel advises that you or your representatives are legally compelled to disclose the Evaluation Materials to any person, (i) you or\nyour representatives, as the case may be, may, without liability hereunder, disclose to such person only that portion of the Evaluation Materials\nwhich your counsel advised you is legally required to be disclosed. You agree to cooperate with the Company, at the Company's expense, to obtain\nassurance that confidential treatment will be accorded such Evaluation Materials.\n2\nNon-Disclosure\nThe disclosure of your possible interest in a Possible Transaction could have a material adverse effect on the Company and its business if for any\nreason an agreement of purchase and sale is not consummated or a disclosure is made prior to the closing of a Possible Transaction. Accordingly,\nunless required by applicable law or regulatory authority, you agree that prior to the closing of a Possible Transaction, without the prior written\nconsent\nof\nthe\nCompany,\nyou\nwill\nnot,\nand\nyou\nwill\ndirect\nyour\nrepresentatives\nnot\nto,\ndisclose\nto\nany\nperson\nthe\nfact\nthat\nthe\nEvaluation\nMaterials\nhave been made available to you, discussions or negotiations have taken or are taking place concerning a Possible Transaction between the Company\nand you or any of the terms, conditions or other facts with respect to any such Possible Transaction, including the status thereof. The term "person"\nas used in this agreement shall be broadly interpreted to include, without limitation, the media, any corporation or limited liability company, the\nCompany, governmental agency or body, stock exchange, partnership, association or individual.\nOwnership and Return of Evaluation Materials\nAll Evaluation Materials disclosed by or on behalf of the Company shall be and shall remain in the property of the Company. Upon the Company's\nrequest, you shall promptly deliver to the Company or destroy all written Evaluation Materials without retaining, in whole or in part, any copies,\nextracts or other reproductions (whatever the form or storage medium) of such materials, and shall certify the delivery or destruction, as applicable,\nof all such materials in writing to the Company; provided that economic analyses, privileged communication with your counsel and other proprietary\ndocumentation shall not be required to be delivered to the Company but shall be destroyed as set forth in this sentence and provided further that you\nmay retain one copy of the Evaluation Materials in a secure location within your Legal Department. Notwithstanding the return or destruction of the\nEvaluation Materials, you and your representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder.\nNo Unauthorized Contact or Solicitation\nDuring the course of your evaluation, all inquiries and other communications are to be made directly to the Financial Advisor or employees or\nrepresentatives of the Company specified by the Financial Advisor. Accordingly, except as set forth in the preceding sentence, you agree not to\ndirectly or indirectly contact or communicate with any executive or other employee of the Company (in their capacities as officers or employees of\nthe Company) concerning a Possible Transaction, or to seek any information in connection therewith from such person, without the express written\nconsent of the Financial Advisor. You also agree not to discuss with or offer to any third party any equity participation in a Possible Transaction or\nany other form of joint acquisition by you and such third party without the prior written consent of the Company.\nWithout the Company's prior written consent, you will not for a period of eighteen months after the date of this agreement directly or indirectly\nsolicit for employment any person who is now employed by the Company in an executive-level position, or any person who is now employed by the\nCompany in a management-level position at the Company's headquarters in Malvern, Pennsylvania, provided that you are not prohibited from\nemploying any such person who contacts you on his or her own initiative and without any direct or indirect solicitation by you\n3\nand the term "solicit for employment" shall not be deemed to include general solicitations of employment not specifically directed toward employees\nof the Company.\nStandstill\nYou agree that until eighteen months after the date of this agreement, you will not without the prior approval of the Board of Directors of the\nCompany (i) acquire or make any proposal to acquire any securities or property of the Company or to acquire any ability to exercise voting\nor\ndispositive power with respect to any securities of the Company, (ii) propose to enter into any merger or business combination involving the\nCompany or purchase a material portion of the assets of the Company, (iii) make or participate in any solicitation of proxies to vote, or seek to advise\nor influence any person with respect to the voting of any securities of the Company, (iv) form, join or participate in a "group" (within the meaning of\nSection 13(d)(3) of the Securities Exchange Act of 1934, as amended), with respect to any voting securities of the Company, (v) otherwise act\nor\nseek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement\ninconsistent with the foregoing or (vii) take any action which might require the Company to make a public announcement regarding the possibility of\na business combination or merger. You also agree during such period not to request the Company (or its directors, officers, employees, agents\nor\nrepresentatives) to amend or waive any provision of this paragraph unless specifically invited to do so by the Board of Directors of the Company.\nNotwithstanding the restrictions in this paragraph, after the Company has announced that it has entered into a definitive written agreement with\na\nthird party with respect to a business combination transaction that, if consummated, would result in a transfer of corporate control of the Company,\nyou may make an acquisition proposal to the Company's Board of Directors.\nNo Representation or Warranty.\nYou acknowledge and agree that none of the Company, the Financial Advisor, or any of their respective representatives or agents is making\nany\nrepresentation or warranty, expressed or implied, as to the accuracy or completeness of the Evaluation Materials, and none of the Company,\nthe\nFinancial Advisor, or any of their respective representatives or agents, nor any of their respective officers, directors, employees, representatives,\nstockholders, owners, affiliates, advisors or agents, will have any liability to you or any other person resulting from the use of Evaluation Materials\nby you or any of your representatives. Furthermore, nothing contained herein shall constitute an obligation on the part of the Company, the Financial\nAdvisor,\nor any of their respective representatives or agents to provide Evaluation Materials or to update any Evaluation Materials provided\nhereunder. Only those representations or warranties that are made to you in a definitive agreement for the Possible Transaction ("Definitive\nAgreement") when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement,\nwill\nhave any legal effect. For purposes of this agreement, the term "Definitive Agreement" does not include an executed non-binding letter of intent or\nany other non-binding written agreement, nor does it include any oral acceptance of an offer or bid by you\nYou also acknowledge and agree that no contract or agreement providing for the sale of the Company or any interest in the Company shall be\ndeemed to exist between you and the Company unless and until a Definitive Agreement has been executed and delivered by you and each of the\n4\nother parties thereto, and you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with the sale of\nthe Company or any interest in the Company unless and until a Definitive Agreement has been executed and delivered by you and each of the other\nparties thereto. You also agree that unless and until a Definitive Agreement between the Company and you with respect to the acquisition of the\nCompany or any interest in the Company has been executed and delivered by you and each of the other parties thereto, there shall not be any legal\nobligation of any kind whatsoever with respect to any such transaction by virtue of this agreement or any other written or oral expression with\nrespect to such transaction except, in the case of this agreement, for the matters specifically agreed to herein.\nYou further understand and agree that (i) the Company and the Financial Advisor shall be free to conduct any process for the sale of the Company or\nany interest in the Company as they in their sole discretion shall determine (including, without limitation, negotiating with any prospective\ncounterparty and entering into a Definitive Agreement without prior notice to you or to any other person), (ii) any procedures relating to such sale\nmay be changed at any time without notice to you or any other person and (iii) you shall not have any claims whatsoever against the Company, the\nFinancial Advisor or any of their respective directors, officers, employees, stockholders, owners, affiliates, agents or representatives arising out of\nor\nrelating to a Possible Transaction involving the Company. You further understand and agree that the Company reserves the right, in its sole\ndiscretion, to reject any and all proposals made by you or any of your representatives with regard to any Possible Transaction, and to terminate\ndiscussions and negotiations with you at any time. Neither this paragraph nor any other provision in this agreement can be waived or amended\nexcept by written consent of the Company, which consent shall specifically refer to this paragraph (or such provision) and explicitly make such\nwaiver or amendment.\nLegal Remedy.\nYou understand and agree that money damages would not be a sufficient remedy for any breach of this agreement by you or your representatives and\nthat the Company will be entitled to specific performance and injunctive relief as remedies for any such breach. Such remedies shall not be deemed\nto\nbe the exclusive remedies for a breach of this agreement by you or your representatives but shall be in addition to all other remedies available at\nlaw or equity. In the event of litigation relating to this agreement, if a court of competent jurisdiction determines that you or your representatives\nhave breached this agreement, then you shall reimburse the Company for its reasonable legal fees and expenses incurred in connection with such\nlitigation, including any appeals therefrom. Similarly, if a court of competent jurisdiction determines that you and/or your representatives did not\nbreach this agreement, then the Company shall reimburse you and/or your representatives for your reasonable legal fees and expenses incurred\nin\nconnection with such litigation, including any appeals therefrom.\nOther\nThis agreement constitutes the entire agreement between the parties hereto regarding the subject matter hereof. This agreement may be changed only\nby a written agreement signed by the parties hereto or their authorized representatives.\n5\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, you and the Company understand and agree\nthat you and the Company have a commonality of interest with respect to such matters and it is the Company's and your desire, intention and mutual\nunderstanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or\nits continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided\nthat is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such\nprotection under these privileges, this agreement, and under the joint defense doctrine.\nIf any term or provision of this agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms\nand provisions of this agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.\nThe parties understand and agree that no failure or delay by the other party in exercising any right, power or privilege under this agreement\nshall\noperate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege\nhereunder.\nThis agreement shall be governed by and construed in accordance with the laws of the State of New York. You also hereby irrevocably and\nunconditionally consent to submit to the exclusive jurisdiction of the courts of the State of New York and the United States of America, in each case\nlocated in the County of New York, for any actions, suits or proceedings arising out of or relating to this agreement and the transactions\ncontemplated hereby (and you agree not to commence any action, suit or proceeding relating thereto except in such courts, and further agree that\nservice of any process, summons, notice or document by U.S. registered mail to your address set forth above shall be effective service of process\nfor\nany\naction, suit or proceeding brought against you in any such court). You hereby irrevocably and unconditionally waive any objection to the laying\nof venue of any action, suit or proceeding arising out of this agreement or the transactions contemplated hereby, in the courts of the State of New\nYork or the United States of America, in each case located in the County of New York, and hereby further irrevocably and unconditionally waive\nand\nagree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient\nforum.\nThis agreement shall terminate two years after the date hereof.\n6\nIf you are in agreement with the foregoing, please sign and return one copy of this agreement, it being understood that all counterpart copies will\nconstitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nAntony Koblish,\nPresident and Chief Executive Officer\nAccepted and agreed to as of the date hereof;\nStryker Corporation\nBy: /s/ Bryant Zanko\nBryant Zanko\nVice President, Business Development\n7\n[ORTHOVITA, INC. LETTERHEAD]\nFebruary 25, 2011\nBryant Zanko\nVice President, Business Development\nStryker Corporation\n2725 Fairfield Road\nKalamazoo, MI 49002\nDear Bryant:\nReference is made to that certain letter agreement dated as of January 18, 2011 (the "Agreement") by and between Orthovita, Inc. (the "Company")\nand Stryker Corporation ("Stryker") in connection with Stryker's consideration of a possible negotiated transaction with the Company. Capitalized\nterms used herein and not otherwise defined herein shall have the meanings given to them in the Agreement.\nIn order for Stryker to receive access to a substantial amount of diligence information regarding the Company as part of the next phase of the process\ncontemplated under the Agreement, the Company requires Stryker to amend the Agreement in order to extend the confidentiality period thereunder\napplicable to trade secrets.\nAccordingly, the sentence on the last page of the Agreement that states, "This agreement shall terminate two years after the date hereof," is amended\nand restated in its entirety to read as follows:\n"This agreement shall terminate two years after the date hereof, provided that the obligations set forth under Use of Evaluation Materials\ninsofar as they relate to the use and disclosure of a trade secret shall continue for SO long as such trade secret continues to be a trade secret as\ndefined under 18 U.S.C. $1839(3)(A), (B) (1996), and only if the Company identified the general subject matter of such trade secret to you in\nwriting prior to disclosure to you and gave you the opportunity to decline receipt of such trade secret. Neither the foregoing nor the restrictions\nin this agreement applicable to trade secrets is intended to preclude you from using residual knowledge retained in intangible form in the\nunaided memories of your directors, employees, contractors and advisors as a result of exposure to the Company's Evaluation Material. The\nCompany acknowledges that you may have in conception or development technology that may be very similar or even identical to the\nCompany's trade secrets disclosed as part of the Evaluation Material."\nExcept as specifically provided herein all other terms and conditions of the Agreement shall remain unchanged and in full force and effect.\nIf\nyou are in agreement with the foregoing, please sign and return one copy of this amendment to the Agreement, it being understood that all\ncounterpart copies will constitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nAntony Koblish,\nPresident and Chief Executive Officer\nAccepted and agreed to as of the date hereof:\nStryker Corporation\nBy: /s/ Bryant Zanko\nBryant Zanko\nVice President, Business Development\n2\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT ("Agreement") is made as of April 27, 2011 by and among Stryker Corporation, a Michigan\ncorporation (collectively with its subsidiaries and Affiliates, "Stryker"); King & Spalding LLP ("K&S") and Lerner, David, Littenberg, Krumholz\n&\nMentlik LLP ("LDLKM"), counsel to Stryker (collectively, "the Stryker Advisors"); and Orthovita, Inc., a Pennsylvania corporation (collectively\nwith its subsidiaries and Affiliates, "Orthovita") (all heretofore named parties are collectively referred to herein as the "Parties").\nRECITALS\nWHEREAS, Stryker and Orthovita are exploring a possible business relationship, arrangement or transaction with each other (the "Possible\nTransaction");\nWHEREAS, Stryker and Orthovita entered into a January 18, 2011 letter agreement relating to confidentiality, as amended February 25, 2011\n(the "Existing Confidentiality Agreement");\nWHEREAS, Stryker has retained the Stryker Advisors to provide legal assistance in connection with the Possible Transaction (the\n"Evaluation");\nWHEREAS, the Parties wish to facilitate the provision by Orthovita of information and materials to the Stryker Advisors, but also desire to\nensure that appropriate safeguards and restrictions are followed with respect to the transmittal of any such information and materials to the Stryker\nAdvisors.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein, and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:\n1. In order to permit Stryker to conduct the Evaluation, Orthovita or its employees, officers, or other representatives will provide to the Stryker\nAdvisors, orally, in writing, or by other means, the Trade Secret Information (as defined below). The Stryker Advisors agree that they will use the\nTrade Secret Information only for the purposes of the Evaluation and will not share with Stryker or any other person any Trade Secret Information\nexcept in accordance with the terms of this Agreement or as authorized in advance in writing by Orthovita or its representative.\n2. As used in this agreement, the term "Trade Secret Information" means information or materials that have, are related to or reflecting\n(A)\ncollagen processing techniques pertaining to medical grade collagen, Vitagel, Vitastat and other hemostat products, (B) details of the\ncomposition of, exact formulations of raw materials, quality assurance test release criteria and manufacturing processes for Vitoss, Vitoss BA, Vitoss\nFoam Products, Vitoss Flowable Products, Vitoss Elemental, Vitoss BA Bimodal, Vitoss BA2X, Vitagel, Vitastat and BA PEEK, (C) exact method\nof making combeite (heat-treated bioactive glass), (D) sileanation of bioactive\nglass (currently used in Cortoss), (E) details of the Cortoss formulation and manufacturing process.\nTrade Secret Information shall not include, however, information that (i) is or has been made available to Stryker by Orthovita or its representatives\n(provided that this subsection (i) shall not apply to Trade Secret Information made available to Stryker by the Stryker Advisors), (ii) is or becomes\navailable to the public other than as a result of disclosure in breach of this Agreement, or (iii) is or becomes available to Stryker or the Stryker\nAdvisors\nfrom\na\nsource\nother\nthan\nOrthovita\nor\nits\nrepresentatives,\nprovided\nthat,\nto\nthe\nbest\nof\nStryker's\nor\na\nStryker\nAdvisor's\nknowledge,\nsuch\nsource is in lawful possession of such information and is not bound by any agreement with Orthovita to keep such information confidential,\nor\notherwise prohibited from transmitting such information to Stryker or any Stryker Advisor.\n3. Nothing in this Agreement shall (i) prohibit the Stryker Advisors from conducting investigations based on the Trade Secret Information,\nprovided that no source of information under such investigation is known by Stryker or any Stryker Advisor, to the best of its knowledge, to be\nbound\nby\nany\nagreement with Orthovita to keep such information confidential, and otherwise is not prohibited from transmitting such information\nto\nStryker or any Stryker Advisor, (ii) prohibit the Stryker Advisors from advising Stryker regarding the Stryker Advisors' opinions based on their\ninvestigations, and the general reasons for its opinions, about any matters for which the Stryker Advisors are engaged to advise Stryker, or\n(iii) require the Stryker Advisors to obtain prior review or approval from Orthovita before rendering such opinions to Stryker.\n4. The Stryker Advisors shall not disclose Trade Secret Information to any third party, including a third party consultant engaged to assist in\nthe Evaluation (a "Consultant") unless, prior to any such disclosure, such Consultant agrees in writing to be bound by the terms of this Agreement,\nthe Stryker Advisors notify Orthovita of the identity of such Consultant and Orthovita approves in writing the disclosure of Trade Secret Information\nto such Consultant.\n5. To the extent that Stryker inadvertently receives information, whether oral or written, that it reasonably believes constitutes, contains, or\ndiscloses Trade Secret Information, Stryker shall: (i) promptly report such receipt to Orthovita; and (ii) promptly turn over all originals and copies\n(including all electronic copies in any media) of such Trade Secret Information, to the extent it is written, to Orthovita. If confirmed to be Trade\nSecret Information, Stryker agrees to maintain such Trade Secret Information in confidence so long as it remains a trade secret. If not confirmed to\nbe Trade Secret Information, Orthovita shall return all materials turned over by Stryker to the extent that the Evaluation is ongoing.\n6. Upon the request of Orthovita or its representative, and within two (2) weeks after such request (unless another time frame is agreed to\nin\nwriting by the Parties), the Stryker Advisors shall return all originals and copies of any Trade Secret Information (including all electronic copies in\nany media) to Orthovita and shall destroy all notes, hard copies and electronic copies, that contain or disclose Trade Secret Information, and shall\ncertify as to such destruction to Orthovita in writing.\n2\n7. Each of Stryker and the Stryker Advisors acknowledges that money damages are an inadequate remedy for breach of this Agreement\nbecause of the difficulty of ascertaining the amount of damage that may be suffered in the event that this Agreement is breached and other factors,\nincluding irreparable injury to Orthovita. Therefore, Orthovita shall be entitled to such equitable relief as may be appropriate, including an injunction\nand specific performance, in the event of any breach of the provisions of this Agreement by any other Party, in addition to all other remedies\navailable to Orthovita at law or in equity.\n8.\n(a)\nThis Agreement and all disputes or controversies arising out of or relating to or seeking to enforce this Agreement shall be governed by,\nand construed in accordance with, the internal laws of the State of Delaware, without regard to the laws of any other jurisdiction that\nmight be applied because of the conflicts of laws principles.\n(b)\nTO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, THE PARTIES HERETO\nHEREBY WAIVE AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR\nOTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT TO ANY CLAIM, CAUSE OF ACTION OR\nSUIT (IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT\nMATTER HEREOF. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 8(b)\nWITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT\nTO TRIAL BY JURY.\n9. Nothing herein shall preclude the Stryker Advisors from disclosing any Trade Secret Information, to the extent required by applicable law\nor\nvalid\nsubpoena\nprovided\nthat,\nwith\nrespect\nto\neach\nof\nthe\nforegoing\nand:\n(i)\nthe\nStryker\nAdvisors\nshall\nnotify\nOrthovita\nof\nthe\nexistence,\nterms\nand\ncircumstances surrounding such disclosure as far in advance as is reasonably practicable and consult with Orthovita on the advisability of taking\nsteps available under applicable law to resist or narrow the scope of any such compelled disclosure, (ii) the Stryker Advisors shall reasonably\ncooperate with Orthovita in taking any such steps to resist or narrow the scope of any such disclosure as may be requested by Orthovita, (iii) the\nStryker Advisors shall exercise their reasonable best efforts to provide such information on a confidential basis or obtain an order or other assurance\nthat confidential treatment will be accorded to such information, and (iv) the Stryker Advisors shall exercise their reasonable best efforts to permit\nOrthovita or its counsel, at Orthovita's expense, to attend all depositions and other proceedings pertaining to such disclosure.\n10. The Parties hereby agree that this Agreement shall not be construed in any manner to be an obligation to proceed with the Proposed\nTransaction.\n11. Orthovita shall not use the disclosure of the Trade Secret Information to the Stryker Advisors to disqualify the Stryker Advisors from\nrepresenting Stryker in any matter.\n3\n12. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which taken\ntogether shall be deemed to constitute one and the same agreement.\n13. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in\nwriting and shall be deemed to have been duly given if (i) delivered personally to the recipient, (ii) sent to the recipient by reputable express courier\nservice\n(charges prepaid) or mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, or (iii) transmitted by\ntelecopy to the recipient with a confirmation copy to follow the next day to be delivered by overnight carrier. Date of service of such notice shall be\n(A) the date such notice is personally delivered, (B) three days after the date of mailing if sent by certified or registered mail, (C) the next business\nday after the date of delivery to the overnight courier if sent by overnight courier or (D) the next business day after the date of transmittal by\ntelecopy. Such notices, demands and other communications shall be sent to the addresses indicated below or to such other address or to the attention\nof such other person as the recipient Party has specified by prior written notice to the sending Party.\n(a)\nif to Stryker, to\nStryker Corporation\n325 Corporate Drive\nMahwah, NJ 07430\nAttention: Legal Department, Stryker Orthopaedics\nFacsimile: (201) 831-4704\nwith a copy to:\nKing & Spalding LLP\n1700 Pennsylvania Avenue, NW\nWashington, DC 20006\nAttention: Pamela F. Forrest\nFacsimile: (202) 626-3737\nand to:\nLerner, David, Littenberg, Krumholz & Mentlik LLP\n600 South Avenue West\nWestfield, NJ 07090\nAttention: Keith E. Gilman\nFacsimile: (908) 654-7866\n(b)\nif to Orthovita, to:\nOrthovita, Inc.\n77 Great Valley Parkway\nMalvern, PA 19355\nAttention: General Counsel\nFacsimile: (610) 640-2603\n4\n14.\n(a)\nNo failure or delay by any Party in exercising any right, power or privilege hereunder will operate as a wavier thereof, nor will any\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder.\n(b)\nThis Agreement and the Existing Confidentiality Agreement (which shall remain in full force and effect) embody the entire agreement\nand understanding of the Parties with respect to the subject matter hereof and supersede all prior discussions, negotiations, agreements\nand understandings among the Parties with respect to the subject matter hereof and thereof.\n(c) This Agreement supplements but does not replace or supersede any prior agreements between the parties relating to the exchange of\nconfidential information in connection with the Possible Transaction, including the Existing Confidentiality Agreement.\n(d) This Agreement may be amended only by a writing signed by all Parties hereto.\n(e) No Party may assign this Agreement or any of its rights hereunder without the written consent of the other Parties, without the prior\nexpress written approval of the other Parties. This Agreement shall be binding and inure to the benefit of the Parties, and their respective\nsuccessors and assigns.\n15. For purposes of this Agreement, "Affiliate(s)" means, as to any person(s) or entity(ies), that directly or indirectly through on or more\nintermediaries, controls, is controlled by, or is under common control with, person(s) or entity(ies). Each Party shall cause each of its controlled\nAffiliates to comply with the terms of this Agreement as if such controlled Affiliate were a Party hereto.\n16. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction,\nthen the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is SO declared\nillegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest\nextent permitted by applicable law.\n5\nIN\nWITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above.\nSTRYKER CORPORATION\nORTHOVITA, INC.\nBy:\n/s/ Bryant Zanko\nBy:\n/s/ Antony Koblish\nName: Bryant Zanko\nName: Antony Koblish\nTitle: VP, Business Development\nTitle: President and CEO\nKING & SPALDING LLP\nLERNER DAVID LITTENBERG\nKRUMHOLZ & MENTLIK LLP\nBy:\n/s/ Pamela F. Forrest\nBy:\n/s/ Keith E. Gilman\nName: Pamela F. Forrest\nName: Keith E. Gilman\nTitle: Partner\nTitle: Partner\n6\n[ORTHOVITA, INC. LETTERHEAD]\nMay 8, 2011\nBryant Zanko\nVice President, Business Development\nStryker Corporation\n2725 Fairfield Road\nKalamazoo, MI 49002\nDear Bryant:\nReference is made to that certain letter agreement dated as of January 18, 2011 by and between Orthovita, Inc. (the "Company") and Stryker\nCorporation ("Stryker"), as amended on February 25, 2011 (the "Agreement"). Capitalized terms used herein and not otherwise defined herein shall\nhave the meanings given to them in the Agreement.\nStryker has requested that Orthovita disclose certain trade secrets to certain of its employees (the "Stryker Trade Secret Recipients" as set forth\nbelow) as part of the evaluation of a possible negotiated transaction between the parties. By execution and delivery of this letter, Stryker agrees that\nthe Stryker Trade Secret Recipients may receive access to the trade secrets described below, which trade secrets are included within the definition\nof\nEvaluation Materials under the Agreement:\nInformation or materials that have, are related to or reflect processing techniques pertaining to pepsinized, soluable collagen and/or pepsinized,\nsoluable collagen in solution with thrombin.\nThe "Stryker Trade Secret Recipients" are: William Cymbaluk, Vice President of Clinical/Quality/Regulatory Affairs; Anthony Faucette, Sr.\nManager, Sterilization Sciences; Rod Parker, Sr. Clinical Sciences Manager; and Leisel Masson, Sr. Microbiologist.\nStryker further agrees that it shall inform the Stryker Trade Secret Recipients of the confidential nature of the trade secrets described herein and shall\nbe directed by Stryker, and shall have agreed or shall otherwise be bound by an obligation, to treat such information confidential in accordance with\nthe Agreement.\nExcept as specifically provided herein all other terms and conditions of the Agreement shall remain unchanged and in full force and effect.\nIf you are in agreement with the foregoing, please sign and return one copy of this letter.\nVery truly yours,\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nAntony Koblish,\nPresident and Chief Executive Officer\nAccepted and agreed to as of the date hereof:\nStryker Corporation\nBy: /s/ Bryant Zanko\nBryant Zanko\nVice President, Business Development\n2	EX-99.(E)(2) 3 dex99e2.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(2)\n[ORTHOVITA LETTERHEAD]\nJanuary 18, 2011\nBryant Zanko\nVice President, Business Development\nStryker Corporation\n2725 Fairfield Road\nKalamazoo, MI 49002\nDear Bryant:\nYou have requested information regarding Orthovita, Inc. (the “Company”, “us” or “we”) in connection with your consideration of a possible\nnegotiated transaction with the Company (a “Possible Transaction”). For purposes of this agreement, the term “Company” includes the Company\nand its subsidiaries taken as a whole or any business or businesses thereof. In consideration of our furnishing you with the Evaluation Materials (as\ndefined below) you agree as follows:\nConfidentiality of Evaluation Materials\nYou will treat confidentially any information (whether written or oral) that either we or our financial advisor, J.P. Morgan Securities LLC (the\n“Financial Advisor”), or our other representatives furnish to you in connection with a Possible Transaction involving the Company, whether\nfurnished before or after the date of this agreement and regardless of the manner in which it is furnished, together with analyses, compilations,\nstudies or other documents prepared by you, or by your representatives (as defined hereinafter) which contain or otherwise reflect such information\nor your review of, or interest in, the Company (collectively, the “Evaluation Materials”).\nThe term “Evaluation Materials” includes information furnished to you orally or in writing (whatever the form or storage medium) or gathered by\ninspection, and regardless of whether such information is specifically identified as “confidential” including, but not limited to, all conversations,\nmeetings, negotiations, discussions, internal memoranda, documents and notes involving the Company and the Possible Transaction. The term\n“Evaluation Materials” does not include information which (i) is or becomes generally available to you or the public other than as a result of a\ndisclosure by you or your representatives, (ii) was or becomes available to you on a non-confidential basis from a source other than the Company or\nits representatives, provided that to your knowledge, after due inquiry, such source is not prohibited from disclosing such information to you by a\ncontractual, legal or fiduciary obligation to the Company or its representatives or (iii) is independently developed by you without violating your\nobligations hereunder.\nUse of Evaluation Materials\nYou will not use any of the Evaluation Materials for any purpose other than the exclusive purpose of evaluating a Possible Transaction. Except as\nrequired by law, you and your representatives will keep the Evaluation Materials confidential; provided, however, that (i) such information may be\ndisclosed to those of your directors, officers, employees, affiliates, agents and representatives (including attorneys, accountants and financial\nadvisors), lenders and other sources of debt financing (collectively, “your representatives”) who need to know such information for the purpose of\nevaluating a Possible Transaction between you and the Company (it being understood that your representatives shall be informed by you of the\nconfidential nature of such information and shall be directed by you to treat such information as confidential in accordance with this agreement and\nshall be under obligations of confidentiality with respect to such information) and (ii) any other disclosure of such information may only be made if\nthe Company consents in writing prior to any such disclosure. Without limiting the generality of the foregoing, in the event that a Possible\nTransaction is not consummated, neither you nor your representatives shall use any of the Evaluation Materials for any purpose. You will be\nresponsible for any breach of this agreement by you or your representatives.\nYou hereby acknowledge that the Company is a publicly traded company. You further hereby acknowledge that you are aware, and that you will\nadvise your representatives who are informed as to the matters which are the subject of this agreement, that the United States securities laws prohibit\nany person who has received from an issuer material, non-public information from purchasing or selling securities of such issuer or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor sell such securities.\nIf you become aware of any unauthorized disclosure or use of any Evaluation Materials, you hereby covenant to promptly notify the Company.\nMoreover, upon the request of the Company, you shall cooperate in assisting the Company in terminating or preventing any third parties from\ndisseminating or using the Evaluation Materials.\nIn the event that you or any of your representatives receive a request or are required (by deposition, interrogatory, request for documents, subpoena,\ncivil investigative demand or similar process) to disclose all or any part of the Evaluation Materials, you or your representatives, as the case may be,\nhereby agree to (i) immediately notify the Company of the existence, terms and circumstances surrounding such request, (ii) unless to the extent\nlegally impracticable, consult with the Company on the advisability of taking legally available steps to resist or narrow such request and (iii) unless\nto the extent legally impracticable, afford the Company with the opportunity to seek a protective order or other appropriate remedy. If your or your\nrepresentatives’ counsel advises that you or your representatives are legally compelled to disclose the Evaluation Materials to any person, (i) you or\nyour representatives, as the case may be, may, without liability hereunder, disclose to such person only that portion of the Evaluation Materials\nwhich your counsel advised you is legally required to be disclosed. You agree to cooperate with the Company, at the Company’s expense, to obtain\nassurance that confidential treatment will be accorded such Evaluation Materials.\n2\nNon-Disclosure\nThe disclosure of your possible interest in a Possible Transaction could have a material adverse effect on the Company and its business if for any\nreason an agreement of purchase and sale is not consummated or a disclosure is made prior to the closing of a Possible Transaction. Accordingly,\nunless required by applicable law or regulatory authority, you agree that prior to the closing of a Possible Transaction, without the prior written\nconsent of the Company, you will not, and you will direct your representatives not to, disclose to any person the fact that the Evaluation Materials\nhave been made available to you, discussions or negotiations have taken or are taking place concerning a Possible Transaction between the Company\nand you or any of the terms, conditions or other facts with respect to any such Possible Transaction, including the status thereof. The term “person”\nas used in this agreement shall be broadly interpreted to include, without limitation, the media, any corporation or limited liability company, the\nCompany, governmental agency or body, stock exchange, partnership, association or individual.\nOwnership and Return of Evaluation Materials\nAll Evaluation Materials disclosed by or on behalf of the Company shall be and shall remain in the property of the Company. Upon the Company’s\nrequest, you shall promptly deliver to the Company or destroy all written Evaluation Materials without retaining, in whole or in part, any copies,\nextracts or other reproductions (whatever the form or storage medium) of such materials, and shall certify the delivery or destruction, as applicable,\nof all such materials in writing to the Company; provided that economic analyses, privileged communication with your counsel and other proprietary\ndocumentation shall not be required to be delivered to the Company but shall be destroyed as set forth in this sentence and provided further that you\nmay retain one copy of the Evaluation Materials in a secure location within your Legal Department. Notwithstanding the return or destruction of the\nEvaluation Materials, you and your representatives will continue to be bound by your obligations of confidentiality and other obligations hereunder.\nNo Unauthorized Contact or Solicitation\nDuring the course of your evaluation, all inquiries and other communications are to be made directly to the Financial Advisor or employees or\nrepresentatives of the Company specified by the Financial Advisor. Accordingly, except as set forth in the preceding sentence, you agree not to\ndirectly or indirectly contact or communicate with any executive or other employee of the Company (in their capacities as officers or employees of\nthe Company) concerning a Possible Transaction, or to seek any information in connection therewith from such person, without the express written\nconsent of the Financial Advisor. You also agree not to discuss with or offer to any third party any equity participation in a Possible Transaction or\nany other form of joint acquisition by you and such third party without the prior written consent of the Company.\nWithout the Company’s prior written consent, you will not for a period of eighteen months after the date of this agreement directly or indirectly\nsolicit for employment any person who is now employed by the Company in an executive-level position, or any person who is now employed by the\nCompany in a management-level position at the Company’s headquarters in Malvern, Pennsylvania, provided that you are not prohibited from\nemploying any such person who contacts you on his or her own initiative and without any direct or indirect solicitation by you\n3\nand the term “solicit for employment” shall not be deemed to include general solicitations of employment not specifically directed toward employees\nof the Company.\nStandstill\nYou agree that until eighteen months after the date of this agreement, you will not without the prior approval of the Board of Directors of the\nCompany (i) acquire or make any proposal to acquire any securities or property of the Company or to acquire any ability to exercise voting or\ndispositive power with respect to any securities of the Company, (ii) propose to enter into any merger or business combination involving the\nCompany or purchase a material portion of the assets of the Company, (iii) make or participate in any solicitation of proxies to vote, or seek to advise\nor influence any person with respect to the voting of any securities of the Company, (iv) form, join or participate in a “group” (within the meaning of\nSection 13(d)(3) of the Securities Exchange Act of 1934, as amended), with respect to any voting securities of the Company, (v) otherwise act or\nseek to control or influence the management, Board of Directors or policies of the Company, (vi) disclose any intention, plan or arrangement\ninconsistent with the foregoing or (vii) take any action which might require the Company to make a public announcement regarding the possibility of\na business combination or merger. You also agree during such period not to request the Company (or its directors, officers, employees, agents or\nrepresentatives) to amend or waive any provision of this paragraph unless specifically invited to do so by the Board of Directors of the Company.\nNotwithstanding the restrictions in this paragraph, after the Company has announced that it has entered into a definitive written agreement with a\nthird party with respect to a business combination transaction that, if consummated, would result in a transfer of corporate control of the Company,\nyou may make an acquisition proposal to the Company’s Board of Directors.\nNo Representation or Warranty\nYou acknowledge and agree that none of the Company, the Financial Advisor, or any of their respective representatives or agents is making any\nrepresentation or warranty, expressed or implied, as to the accuracy or completeness of the Evaluation Materials, and none of the Company, the\nFinancial Advisor, or any of their respective representatives or agents, nor any of their respective officers, directors, employees, representatives,\nstockholders, owners, affiliates, advisors or agents, will have any liability to you or any other person resulting from the use of Evaluation Materials\nby you or any of your representatives. Furthermore, nothing contained herein shall constitute an obligation on the part of the Company, the Financial\nAdvisor, or any of their respective representatives or agents to provide Evaluation Materials or to update any Evaluation Materials provided\nhereunder. Only those representations or warranties that are made to you in a definitive agreement for the Possible Transaction (“Definitive\nAgreement”) when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such Definitive Agreement, will\nhave any legal effect. For purposes of this agreement, the term “Definitive Agreement” does not include an executed non-binding letter of intent or\nany other non-binding written agreement, nor does it include any oral acceptance of an offer or bid by you.\nYou also acknowledge and agree that no contract or agreement providing for the sale of the Company or any interest in the Company shall be\ndeemed to exist between you and the Company unless and until a Definitive Agreement has been executed and delivered by you and each of the\n4\nother parties thereto, and you hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection with the sale of\nthe Company or any interest in the Company unless and until a Definitive Agreement has been executed and delivered by you and each of the other\nparties thereto. You also agree that unless and until a Definitive Agreement between the Company and you with respect to the acquisition of the\nCompany or any interest in the Company has been executed and delivered by you and each of the other parties thereto, there shall not be any legal\nobligation of any kind whatsoever with respect to any such transaction by virtue of this agreement or any other written or oral expression with\nrespect to such transaction except, in the case of this agreement, for the matters specifically agreed to herein.\nYou further understand and agree that (i) the Company and the Financial Advisor shall be free to conduct any process for the sale of the Company or\nany interest in the Company as they in their sole discretion shall determine (including, without limitation, negotiating with any prospective\ncounterparty and entering into a Definitive Agreement without prior notice to you or to any other person), (ii) any procedures relating to such sale\nmay be changed at any time without notice to you or any other person and (iii) you shall not have any claims whatsoever against the Company, the\nFinancial Advisor or any of their respective directors, officers, employees, stockholders, owners, affiliates, agents or representatives arising out of or\nrelating to a Possible Transaction involving the Company. You further understand and agree that the Company reserves the right, in its sole\ndiscretion, to reject any and all proposals made by you or any of your representatives with regard to any Possible Transaction, and to terminate\ndiscussions and negotiations with you at any time. Neither this paragraph nor any other provision in this agreement can be waived or amended\nexcept by written consent of the Company, which consent shall specifically refer to this paragraph (or such provision) and explicitly make such\nwaiver or amendment.\nLegal Remedy\nYou understand and agree that money damages would not be a sufficient remedy for any breach of this agreement by you or your representatives and\nthat the Company will be entitled to specific performance and injunctive relief as remedies for any such breach. Such remedies shall not be deemed\nto be the exclusive remedies for a breach of this agreement by you or your representatives but shall be in addition to all other remedies available at\nlaw or equity. In the event of litigation relating to this agreement, if a court of competent jurisdiction determines that you or your representatives\nhave breached this agreement, then you shall reimburse the Company for its reasonable legal fees and expenses incurred in connection with such\nlitigation, including any appeals therefrom. Similarly, if a court of competent jurisdiction determines that you and/or your representatives did not\nbreach this agreement, then the Company shall reimburse you and/or your representatives for your reasonable legal fees and expenses incurred in\nconnection with such litigation, including any appeals therefrom.\nOther\nThis agreement constitutes the entire agreement between the parties hereto regarding the subject matter hereof. This agreement may be changed only\nby a written agreement signed by the parties hereto or their authorized representatives.\n5\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, you and the Company understand and agree\nthat you and the Company have a commonality of interest with respect to such matters and it is the Company’s and your desire, intention and mutual\nunderstanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or\nits continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material provided\nthat is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such\nprotection under these privileges, this agreement, and under the joint defense doctrine.\nIf any term or provision of this agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms\nand provisions of this agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.\nThe parties understand and agree that no failure or delay by the other party in exercising any right, power or privilege under this agreement shall\noperate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege\nhereunder.\nThis agreement shall be governed by and construed in accordance with the laws of the State of New York. You also hereby irrevocably and\nunconditionally consent to submit to the exclusive jurisdiction of the courts of the State of New York and the United States of America, in each case\nlocated in the County of New York, for any actions, suits or proceedings arising out of or relating to this agreement and the transactions\ncontemplated hereby (and you agree not to commence any action, suit or proceeding relating thereto except in such courts, and further agree that\nservice of any process, summons, notice or document by U.S . registered mail to your address set forth above shall be effective service of process for\nany action, suit or proceeding brought against you in any such court). You hereby irrevocably and unconditionally waive any objection to the laying\nof venue of any action, suit or proceeding arising out of this agreement or the transactions contemplated hereby, in the courts of the State of New\nYork or the United States of America, in each case located in the County of New York, and hereby further irrevocably and unconditionally waive and\nagree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient\nforum.\nThis agreement shall terminate two years after the date hereof.\n6\nIf you are in agreement with the foregoing, please sign and return one copy of this agreement, it being understood that all counterpart copies will\nconstitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nAntony Koblish,\nPresident and Chief Executive Officer\nAccepted and agreed to as of the date hereof;\nStryker Corporation\nBy: /s/ Bryant Zanko\nBryant Zanko\nVice President, Business Development\n7\n[ORTHOVITA, INC. LETTERHEAD]\nFebruary 25, 2011\nBryant Zanko\nVice President, Business Development\nStryker Corporation\n2725 Fairfield Road\nKalamazoo, MI 49002\nDear Bryant:\nReference is made to that certain letter agreement dated as of January 18, 2011 (the “Agreement”) by and between Orthovita, Inc. (the “Company”)\nand Stryker Corporation (“Stryker”) in connection with Stryker’s consideration of a possible negotiated transaction with the Company. Capitalized\nterms used herein and not otherwise defined herein shall have the meanings given to them in the Agreement.\nIn order for Stryker to receive access to a substantial amount of diligence information regarding the Company as part of the next phase of the process\ncontemplated under the Agreement, the Company requires Stryker to amend the Agreement in order to extend the confidentiality period thereunder\napplicable to trade secrets.\nAccordingly, the sentence on the last page of the Agreement that states, “This agreement shall terminate two years after the date hereof,” is amended\nand restated in its entirety to read as follows:\n“This agreement shall terminate two years after the date hereof, provided that the obligations set forth under Use of Evaluation Materials\ninsofar as they relate to the use and disclosure of a trade secret shall continue for so long as such trade secret continues to be a trade secret as\ndefined under 18 U.S.C . §1839(3)(A), (B) (1996), and only if the Company identified the general subject matter of such trade secret to you in\nwriting prior to disclosure to you and gave you the opportunity to decline receipt of such trade secret. Neither the foregoing nor the restrictions\nin this agreement applicable to trade secrets is intended to preclude you from using residual knowledge retained in intangible form in the\nunaided memories of your directors, employees, contractors and advisors as a result of exposure to the Company’s Evaluation Material. The\nCompany acknowledges that you may have in conception or development technology that may be very similar or even identical to the\nCompany’s trade secrets disclosed as part of the Evaluation Material.”\nExcept as specifically provided herein all other terms and conditions of the Agreement shall remain unchanged and in full force and effect.\nIf you are in agreement with the foregoing, please sign and return one copy of this amendment to the Agreement, it being understood that all\ncounterpart copies will constitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nAntony Koblish,\nPresident and Chief Executive Officer\nAccepted and agreed to as of the date hereof:\nStryker Corporation\nBy: /s/ Bryant Zanko\nBryant Zanko\nVice President, Business Development\n2\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is made as of April 27, 2011 by and among Stryker Corporation, a Michigan\ncorporation (collectively with its subsidiaries and Affiliates, “Stryker”); King & Spalding LLP (“K&S”) and Lerner, David, Littenberg, Krumholz &\nMentlik LLP (“LDLKM”), counsel to Stryker (collectively, “the Stryker Advisors”); and Orthovita, Inc., a Pennsylvania corporation (collectively\nwith its subsidiaries and Affiliates, “Orthovita”) (all heretofore named parties are collectively referred to herein as the “Parties”).\nRECITALS\nWHEREAS, Stryker and Orthovita are exploring a possible business relationship, arrangement or transaction with each other (the “Possible\nTransaction”);\nWHEREAS, Stryker and Orthovita entered into a January 18, 2011 letter agreement relating to confidentiality, as amended February 25, 2011\n(the “Existing Confidentiality Agreement”);\nWHEREAS, Stryker has retained the Stryker Advisors to provide legal assistance in connection with the Possible Transaction (the\n“Evaluation”);\nWHEREAS, the Parties wish to facilitate the provision by Orthovita of information and materials to the Stryker Advisors, but also desire to\nensure that appropriate safeguards and restrictions are followed with respect to the transmittal of any such information and materials to the Stryker\nAdvisors.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein, and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:\n1. In order to permit Stryker to conduct the Evaluation, Orthovita or its employees, officers, or other representatives will provide to the Stryker\nAdvisors, orally, in writing, or by other means, the Trade Secret Information (as defined below). The Stryker Advisors agree that they will use the\nTrade Secret Information only for the purposes of the Evaluation and will not share with Stryker or any other person any Trade Secret Information\nexcept in accordance with the terms of this Agreement or as authorized in advance in writing by Orthovita or its representative.\n2. As used in this agreement, the term “Trade Secret Information” means information or materials that have, are related to or reflecting\n(A) collagen processing techniques pertaining to medical grade collagen, Vitagel, Vitastat and other hemostat products, (B) details of the\ncomposition of, exact formulations of raw materials, quality assurance test release criteria and manufacturing processes for Vitoss, Vitoss BA, Vitoss\nFoam Products, Vitoss Flowable Products, Vitoss Elemental, Vitoss BA Bimodal, Vitoss BA2X, Vitagel, Vitastat and BA PEEK, (C) exact method\nof making combeite (heat-treated bioactive glass), (D) sileanation of bioactive\nglass (currently used in Cortoss), (E) details of the Cortoss formulation and manufacturing process.\nTrade Secret Information shall not include, however, information that (i) is or has been made available to Stryker by Orthovita or its representatives\n(provided that this subsection (i) shall not apply to Trade Secret Information made available to Stryker by the Stryker Advisors), (ii) is or becomes\navailable to the public other than as a result of disclosure in breach of this Agreement, or (iii) is or becomes available to Stryker or the Stryker\nAdvisors from a source other than Orthovita or its representatives, provided that, to the best of Stryker’s or a Stryker Advisor’s knowledge, such\nsource is in lawful possession of such information and is not bound by any agreement with Orthovita to keep such information confidential, or\notherwise prohibited from transmitting such information to Stryker or any Stryker Advisor.\n3. Nothing in this Agreement shall (i) prohibit the Stryker Advisors from conducting investigations based on the Trade Secret Information,\nprovided that no source of information under such investigation is known by Stryker or any Stryker Advisor, to the best of its knowledge, to be\nbound by any agreement with Orthovita to keep such information confidential, and otherwise is not prohibited from transmitting such information to\nStryker or any Stryker Advisor, (ii) prohibit the Stryker Advisors from advising Stryker regarding the Stryker Advisors’ opinions based on their\ninvestigations, and the general reasons for its opinions, about any matters for which the Stryker Advisors are engaged to advise Stryker, or\n(iii) require the Stryker Advisors to obtain prior review or approval from Orthovita before rendering such opinions to Stryker.\n4. The Stryker Advisors shall not disclose Trade Secret Information to any third party, including a third party consultant engaged to assist in\nthe Evaluation (a “Consultant”) unless, prior to any such disclosure, such Consultant agrees in writing to be bound by the terms of this Agreement,\nthe Stryker Advisors notify Orthovita of the identity of such Consultant and Orthovita approves in writing the disclosure of Trade Secret Information\nto such Consultant.\n5. To the extent that Stryker inadvertently receives information, whether oral or written, that it reasonably believes constitutes, contains, or\ndiscloses Trade Secret Information, Stryker shall: (i) promptly report such receipt to Orthovita; and (ii) promptly turn over all originals and copies\n(including all electronic copies in any media) of such Trade Secret Information, to the extent it is written, to Orthovita. If confirmed to be Trade\nSecret Information, Stryker agrees to maintain such Trade Secret Information in confidence so long as it remains a trade secret. If not confirmed to\nbe Trade Secret Information, Orthovita shall return all materials turned over by Stryker to the extent that the Evaluation is ongoing.\n6. Upon the request of Orthovita or its representative, and within two (2) weeks after such request (unless another time frame is agreed to in\nwriting by the Parties), the Stryker Advisors shall return all originals and copies of any Trade Secret Information (including all electronic copies in\nany media) to Orthovita and shall destroy all notes, hard copies and electronic copies, that contain or disclose Trade Secret Information, and shall\ncertify as to such destruction to Orthovita in writing.\n2\n7. Each of Stryker and the Stryker Advisors acknowledges that money damages are an inadequate remedy for breach of this Agreement\nbecause of the difficulty of ascertaining the amount of damage that may be suffered in the event that this Agreement is breached and other factors,\nincluding irreparable injury to Orthovita. Therefore, Orthovita shall be entitled to such equitable relief as may be appropriate, including an injunction\nand specific performance, in the event of any breach of the provisions of this Agreement by any other Party, in addition to all other remedies\navailable to Orthovita at law or in equity.\n8.\n(a) This Agreement and all disputes or controversies arising out of or relating to or seeking to enforce this Agreement shall be governed by,\nand construed in accordance with, the internal laws of the State of Delaware, without regard to the laws of any other jurisdiction that\nmight be applied because of the conflicts of laws principles.\n(b) TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, THE PARTIES HERETO\nHEREBY WAIVE AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR\nOTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT TO ANY CLAIM, CAUSE OF ACTION OR\nSUIT (IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT\nMATTER HEREOF. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 8(b)\nWITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT\nTO TRIAL BY JURY.\n9. Nothing herein shall preclude the Stryker Advisors from disclosing any Trade Secret Information, to the extent required by applicable law or\nvalid subpoena provided that, with respect to each of the foregoing and: (i) the Stryker Advisors shall notify Orthovita of the existence, terms and\ncircumstances surrounding such disclosure as far in advance as is reasonably practicable and consult with Orthovita on the advisability of taking\nsteps available under applicable law to resist or narrow the scope of any such compelled disclosure, (ii) the Stryker Advisors shall reasonably\ncooperate with Orthovita in taking any such steps to resist or narrow the scope of any such disclosure as may be requested by Orthovita, (iii) the\nStryker Advisors shall exercise their reasonable best efforts to provide such information on a confidential basis or obtain an order or other assurance\nthat confidential treatment will be accorded to such information, and (iv) the Stryker Advisors shall exercise their reasonable best efforts to permit\nOrthovita or its counsel, at Orthovita’s expense, to attend all depositions and other proceedings pertaining to such disclosure.\n10. The Parties hereby agree that this Agreement shall not be construed in any manner to be an obligation to proceed with the Proposed\nTransaction.\n11. Orthovita shall not use the disclosure of the Trade Secret Information to the Stryker Advisors to disqualify the Stryker Advisors from\nrepresenting Stryker in any matter.\n3\n12. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which taken\ntogether shall be deemed to constitute one and the same agreement.\n13. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in\nwriting and shall be deemed to have been duly given if (i) delivered personally to the recipient, (ii) sent to the recipient by reputable express courier\nservice (charges prepaid) or mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, or (iii) transmitted by\ntelecopy to the recipient with a confirmation copy to follow the next day to be delivered by overnight carrier. Date of service of such notice shall be\n(A) the date such notice is personally delivered, (B) three days after the date of mailing if sent by certified or registered mail, (C) the next business\nday after the date of delivery to the overnight courier if sent by overnight courier or (D) the next business day after the date of transmittal by\ntelecopy. Such notices, demands and other communications shall be sent to the addresses indicated below or to such other address or to the attention\nof such other person as the recipient Party has specified by prior written notice to the sending Party.\n(a) if to Stryker, to\nStryker Corporation\n325 Corporate Drive\nMahwah, NJ 07430\nAttention: Legal Department, Stryker Orthopaedics\nFacsimile: (201) 831-4704\nwith a copy to:\nKing & Spalding LLP\n1700 Pennsylvania Avenue, NW\nWashington, DC 20006\nAttention: Pamela F. Forrest\nFacsimile: (202) 626-3737\nand to:\nLerner, David, Littenberg, Krumholz & Mentlik LLP\n600 South Avenue West\nWestfield, NJ 07090\nAttention: Keith E. Gilman\nFacsimile: (908) 654-7866\n(b) if to Orthovita, to:\nOrthovita, Inc.\n77 Great Valley Parkway\nMalvern, PA 19355\nAttention: General Counsel\nFacsimile: (610) 640-2603\n4\n14.\n(a) No failure or delay by any Party in exercising any right, power or privilege hereunder will operate as a wavier thereof, nor will any\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder.\n(b) This Agreement and the Existing Confidentiality Agreement (which shall remain in full force and effect) embody the entire agreement\nand understanding of the Parties with respect to the subject matter hereof and supersede all prior discussions, negotiations, agreements\nand understandings among the Parties with respect to the subject matter hereof and thereof.\n(c) This Agreement supplements but does not replace or supersede any prior agreements between the parties relating to the exchange of\nconfidential information in connection with the Possible Transaction, including the Existing Confidentiality Agreement.\n(d) This Agreement may be amended only by a writing signed by all Parties hereto.\n(e) No Party may assign this Agreement or any of its rights hereunder without the written consent of the other Parties, without the prior\nexpress written approval of the other Parties. This Agreement shall be binding and inure to the benefit of the Parties, and their respective\nsuccessors and assigns.\n15. For purposes of this Agreement, “Affiliate(s)” means, as to any person(s) or entity(ies), that directly or indirectly through on or more\nintermediaries, controls, is controlled by, or is under common control with, person(s) or entity(ies). Each Party shall cause each of its controlled\nAffiliates to comply with the terms of this Agreement as if such controlled Affiliate were a Party hereto.\n16. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction,\nthen the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is so declared\nillegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest\nextent permitted by applicable law.\n5\nIN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above.\nSTRYKER CORPORATION\nORTHOVITA, INC.\nBy: /s/ Bryant Zanko\nBy: /s/ Antony Koblish\nName: Bryant Zanko\nName: Antony Koblish\nTitle: VP, Business Development\nTitle: President and CEO\nKING & SPALDING LLP\nLERNER DAVID LITTENBERG\nKRUMHOLZ & MENTLIK LLP\nBy: /s/ Pamela F. Forrest\nBy: /s/ Keith E. Gilman\nName: Pamela F. Forrest\nName: Keith E. Gilman\nTitle: Partner\nTitle: Partner\n6\n[ORTHOVITA, INC. LETTERHEAD]\nMay 8, 2011\nBryant Zanko\nVice President, Business Development\nStryker Corporation\n2725 Fairfield Road\nKalamazoo, MI 49002\nDear Bryant:\nReference is made to that certain letter agreement dated as of January 18, 2011 by and between Orthovita, Inc. (the “Company”) and Stryker\nCorporation (“Stryker”), as amended on February 25, 2011 (the “Agreement”). Capitalized terms used herein and not otherwise defined herein shall\nhave the meanings given to them in the Agreement.\nStryker has requested that Orthovita disclose certain trade secrets to certain of its employees (the “Stryker Trade Secret Recipients” as set forth\nbelow) as part of the evaluation of a possible negotiated transaction between the parties. By execution and delivery of this letter, Stryker agrees that\nthe Stryker Trade Secret Recipients may receive access to the trade secrets described below, which trade secrets are included within the definition of\nEvaluation Materials under the Agreement:\nInformation or materials that have, are related to or reflect processing techniques pertaining to pepsinized, soluable collagen and/or pepsinized,\nsoluable collagen in solution with thrombin.\nThe “Stryker Trade Secret Recipients” are: William Cymbaluk, Vice President of Clinical/Quality/Regulatory Affairs; Anthony Faucette, Sr.\nManager, Sterilization Sciences; Rod Parker, Sr. Clinical Sciences Manager; and Leisel Masson, Sr. Microbiologist.\nStryker further agrees that it shall inform the Stryker Trade Secret Recipients of the confidential nature of the trade secrets described herein and shall\nbe directed by Stryker, and shall have agreed or shall otherwise be bound by an obligation, to treat such information confidential in accordance with\nthe Agreement.\nExcept as specifically provided herein all other terms and conditions of the Agreement shall remain unchanged and in full force and effect.\nIf you are in agreement with the foregoing, please sign and return one copy of this letter.\nVery truly yours,\nORTHOVITA, INC.\nBy: /s/ Antony Koblish\nAntony Koblish,\nPresident and Chief Executive Officer\nAccepted and agreed to as of the date hereof:\nStryker Corporation\nBy: /s/ Bryant Zanko\nBryant Zanko\nVice President, Business Development\n2
+f4c39490e63ee60b91f354c6b00a413b.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 10 d802321dex99d3.htm EX-99.(D)(3)\nExhibit (d)(3)\nLOGO\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (“Agreement”), effective as of the last date of signature below (the “Effective Date”), is made by and between Alder\nBioPharmaceuticals, Inc., a Delaware corporation (together with its subsidiaries, “Discloser”), and the entity identified below (together with its\nsubsidiaries “Recipient”).\n1. Purpose. Discloser and Recipient wish to explore a possible business opportunity of mutual interest regarding commercial partnership for\neptinezumab (the “Compound”) outside of the United States (the “Relationship”) in connection with which Discloser will disclose its Confidential\nInformation (as defined below) to the Recipient. This Agreement is intended to allow the parties to discuss and evaluate the Relationship while\nprotecting the Discloser’s Confidential Information against unauthorized use or disclosure.\n2. Definition of Confidential Information.\n2.1 Confidential Information. “Confidential Information” means all information that is disclosed by the Discloser to the Recipient in whatever\nform it may take, whether computerized, oral, written, graphic, photographic, recorded or other, which (a) is designated in writing to be confidential or\nproprietary, or (b) if given orally, is confirmed in writing as confidential or proprietary within a reasonable time (not to exceed thirty days) after the oral\ndisclosure, or (c) is treated by the Discloser as confidential or proprietary and which a reasonable person would recognize to be confidential or\nproprietary from its nature or the manner of its disclosure. Confidential information may include patents, patent applications, research, product plans,\nproducts, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software (including source and object code),\nhardware configuration, computer programs, algorithms, regulatory information, medical reports, clinical data and analysis, reagents, cell lines,\nbiological materials, chemical formulas, business plans, agreements with third parties, services, customers, marketing or finances of the Discloser and\ndata and information that a third person has disclosed to the Discloser in confidence, which the Discloser is permitted to disclose to the Recipient under\nthis Agreement.\n2.2 Limitation on Confidential Information Disclosed. The parties agree that the Confidential Information initially disclosed by the Discloser\nunder this Agreement will consist substantially of empirical results and data related to the biological, pharmacological and/or clinical activities of the\nCompound and regulatory and/or commercial strategies related to the Compound. The parties further agree that the Confidential Information will\nspecifically not include; (a) any chemical structures, formula, amino acid or nucleic acid sequence for active pharmaceutical ingredients, other than the\nCompound; (b) information about IP strategies and unpublished patents, other than for the Compound; and (c) speculations regarding functionality or\nsuitability for active pharmaceutical ingredients, except for the treatment of migraine and other pain indications with the Compound. Such information\n((a) – (c) above) shall only be considered Confidential Information and thereby subject to the terms and conditions of this Agreement if the Recipient\nhas in advance specifically accepted and confirmed in writing to the Discloser its interest in receiving such information.\n2.3 Confidentiality of Discussions and Agreement. The fact that the parties have discussions regarding the Relationship and this Agreement,\nincluding its terms and conditions, shall be deemed Confidential Information of each party.\n2.4 Exceptions. For the purposes of this Agreement, “Confidential Information” of the Discloser does not include any information that the\nRecipient can prove: (a) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Recipient; (b) was\nknown to the Recipient, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (c) is disclosed to\nthe Recipient by a third person who is – to the Recipient’s reasonable knowledge - not under any obligation of confidentiality to the Discloser; or (d) is\nindependently developed by or for the Recipient without the benefit of the Confidential Information of the Discloser.\nMCDA\nPage1of5\nCONFIDENTIAL\n3. Recipient Obligations. The Recipient agrees that it shall (a) not use any of the Discloser’s Confidential Information for the Recipient’s own use or\nfor any purpose other than to carry out discussions concerning, and the undertaking of, the Relationship; (b) not disclose or permit disclosure of any of\nthe Discloser’s Confidential Information to third parties or to employees of the Recipient, other than those directors, officers, employees, consultants and\nagents who are required to have the information in order to carry out the discussions regarding the Relationship and who are bound by obligations of\nconfidentiality at least as restrictive as those set forth in this Agreement; and (c) take all reasonable measures to protect the secrecy of and avoid\ndisclosure or use of the Discloser’s Confidential Information in order to prevent it from falling into the public domain or the possession of persons other\nthan those persons authorized under this Agreement to have any such information. Such measures shall include, but not be limited to, the highest degree\nof care that the Recipient utilizes to protect its own Confidential Information of a similar nature, which shall be no less than an ordinary pharmaceutical\ncompany would use to protect its own confidential information. The Recipient further agrees to notify the Discloser in writing of any actual or suspected\nmisuse, misappropriation or unauthorized disclosure of the Discloser’s Confidential Information which may come to the Recipient’s attention.\n4. Legally Required Disclosure. The Recipient may disclose the Discloser’s Confidential Information pursuant to the order or requirement of a court of\ncompetent jurisdiction, administrative agency, or other governmental body; provided, however, that the Recipient without undue delay shall provide\nnotice of such court order or requirement to the Discloser to enable the Discloser to seek a protective order or otherwise prevent or restrict such\ndisclosure. In the event of a limited disclosure of the Discloser’s Confidential Information as set forth in this Section, the Recipient shall continue to\ntreat such information as the Discloser’s Confidential Information for all other purposes and subject to the other terms and conditions of this Agreement.\n5. Destruction of Materials. Any materials or documents that have been furnished by the Discloser to the Recipient in connection with the Relationship\nshall be promptly destroyed by the Recipient, which destruction shall be certified in writing by Recipient, as well as all copies of such documentation,\nwithin ten days after (a) the Relationship has been rejected or concluded or (b) the written request of the Discloser; except the Recipient may keep one\ncopy of any such information for legal record-keeping purposes and shall not be required to erase electronic back-up files made in the ordinary course of\nbusiness provided that such electronic back-up files are not accessed or used for any purpose.\n6. No Rights Granted. All Confidential Information of the Discloser disclosed under this Agreement shall remain the sole property of the Discloser.\nNothing in this Agreement shall be construed as granting the Recipient any rights under any patent, copyright or other intellectual property right of the\nDiscloser, nor shall this Agreement grant the Recipient any rights in or to the Discloser’s Confidential Information other than the limited right to review\nsuch Confidential Information solely for the purpose of determining whether to enter into the Relationship.\n7. Term. This Agreement will be effective for a period of one (1) year after the Effective Date unless earlier terminated by a party upon thirty (30) days’\nprior written notice to the other party. The restrictions on use and disclosure of the Discloser’s Confidential Information by the Recipient shall survive\nany expiration or termination of this Agreement and shall continue in full force and effect for a period of five (5) years thereafter. Each party’s\nobligations under this Agreement shall be binding upon such party’s heirs, successors and assigns.\nMCDA\nPage2of5\nCONFIDENTIAL\n8. Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and\nassigns of the parties, provided that the Discloser’s Confidential Information may not be assigned by the Recipient without the prior written consent of\nthe Discloser. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective\nsuccessors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this\nAgreement.\n9. Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such\nprovision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (a) such\nprovision shall be excluded from this Agreement, (b) the balance of the Agreement shall be interpreted as if such provision were so excluded and (c) the\nbalance of the Agreement shall be enforceable in accordance with its terms.\n10. Independent Contractors. Discloser and Recipient are independent contractors, and nothing contained in this Agreement shall be construed to\nconstitute Discloser and Recipient as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking.\n11. Governing Law; Jurisdiction. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall\nbe governed, construed and interpreted in accordance with the laws of the State of Washington, without giving effect to principles of conflicts of law.\nEach of the parties hereto consents to the exclusive jurisdiction and venue of the courts of King County, Washington. The prevailing party shall be\nentitled to recover the reasonable attorneys’ fees and costs incurred by the prevailing party in any action brought to enforce any right arising under this\nAgreement.\n12. Remedies. Discloser and Recipient each agree that its obligations set forth in this Agreement are necessary and reasonable in order to protect the\nDiscloser and its business. Discloser and Recipient each expressly agree that due to the unique nature of the Discloser’s Confidential Information,\nmonetary damages would be inadequate to compensate the Discloser for any breach by the Recipient of its covenants and agreements set forth in this\nAgreement. Accordingly, Discloser and Recipient each agree and acknowledge that any such violation or threatened violation shall cause irreparable\ninjury to the Discloser and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the Discloser shall be entitled to\nobtain injunctive relief (subject to all ordinary requirements for granting such injunctive relief under applicable law being met) against the threatened\nbreach of this Agreement or the continuation of any such breach by the Recipient.\n13. Standstill Provision. Commencing on the Effective Date and for three (3) years thereafter, (the “Standstill Period”), neither Company nor any of\nCompany’s affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will, directly or\nindirectly (i) acquire, offer to acquire, agree to acquire or make a proposal to acquire, by purchase or otherwise, “beneficial ownership” (as defined in\nSection 13(d) of the Exchange Act) of any equity securities or assets, or rights or options to acquire any such securities or assets (through purchase,\nexchange, conversion or otherwise), of Discloser, including derivative securities representing the right to vote or economic benefits of any such\nsecurities; (ii) make, effect or commence any tender or exchange offer, merger or other business combination involving Discloser; (iii) consummate or\ncommence any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Discloser; (iv) make, or in any\nway participate in, any “solicitation” of proxies to vote or consent, or seek to advise or influence any person with respect to the voting of, any voting\nsecurities of Discloser or be or become a “participant” in any “election contest” with respect to Discloser (all within the meaning of Section 14 of the\nExchange Act); (v) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to, or\notherwise act in concert with any person in respect of, any voting equity securities of Discloser; (vi) otherwise act, alone or in concert with others, to\nseek representation on or to control or\nMCDA\nPage3of5\nCONFIDENTIAL\ninfluence the management, board of directors or policies of Discloser or any subsidiary; (vii) negotiate with or provide any information to any person\n(other than the Recipient’s Representatives in accordance with this Agreement) with respect to, or make any statement or proposal to any person (other\nthan the Recipient’s Representatives in accordance with this Agreement) with respect to, or make any public announcement or proposal or offer\nwhatsoever with respect to, or act as a financing source for or otherwise invest in any other persons in connection with, or otherwise solicit, seek or offer\nto effect any transactions or actions described in the foregoing clauses (i) through (vi), or make any other proposal or statement inconsistent with the\nterms of this Agreement or that otherwise could reasonably be expected to result in a public announcement regarding any such transactions or actions; or\n(viii) advise, assist, induce, or encourage any other persons in connection with any of the foregoing; unless and until, in the case of each of the foregoing\nclauses (i) through (viii), the Recipient has received the prior written invitation or approval of Discloser’s board of directors to do so. The Recipient also\nagrees that during the Standstill Period it will not request that Discloser or any of its Representatives amend or waive any provision of this Section 14\n(including this sentence). The Recipient hereby confirms that, as of the date hereof and except as disclosed to Discloser in writing prior to the date\nhereof, the Recipient does not have, directly or indirectly, beneficial ownership of equity securities, or rights or options to own or acquire any such\nsecurities (through purchase, exchange, conversion or otherwise), of Discloser. The expiration of the Standstill Period will not terminate or otherwise\naffect any of the other provisions of this Agreement. As used in this Section 14, “Representatives” means (x) subsidiaries and other affiliates,\n(y) Recipient’s directors, officers, employees, agents, representatives, accountants, attorneys and advisors, and (z) the directors, officers, employees,\npartners, agents, representatives, accountants, attorneys and advisors of Recipient’s subsidiaries and other affiliates.\n14. Amendment and Waiver. Any term of this Agreement may be amended with the written consent of Discloser and Recipient. Any amendment or\nwaiver effected in accordance with this Section shall be binding upon the parties and their respective successors and assigns. Failure to enforce any\nprovision of this Agreement by a party shall not constitute a waiver of any term hereof by such party.\n15. Entire Agreement. This Agreement is the product of both of the parties hereto, and constitutes the entire agreement between such parties pertaining\nto the subject matter hereof, and merges all prior negotiations and drafts of the parties with regard to the transactions contemplated herein. All other\nwritten or oral agreements existing between the parties hereto regarding such transactions are expressly canceled.\n16. Personal data. The parties may, as part of their contractual relationship and to perform their respective obligations under the Agreement, share\npersonal data about certain employees engaged by the parties, as applicable, who are working to fulfil the Agreement (hereinafter “Employees”).\nWithout otherwise limiting the parties’ rights and obligations related to personal data set out in this Agreement, each party acknowledges and agrees that\nit will, on behalf of the other party, provide its own Employees with information about the other party’s collection and processing of the employees’\npersonal data. Such information must comply with applicable data protection laws, including – to the extent applicable – Article 13 and 14 of Regulation\n(EU) 2016/679 of 27 April 2016 (the General Data Protection Regulation).\n17. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together\nshall constitute one instrument. Any signature page delivered by facsimile or electronic image transmission shall be binding to the same extent as an\noriginal signature page.\n[Signature page follows]\nMCDA\nPage4of5\nCONFIDENTIAL\nThe parties have executed this Agreement by their respective duly authorized representatives as of the dates set forth below.\nAlder BioPharmaceuticals, Inc.\nH. Lundbeck A/S\nBy:\n/s/ James B. Bucher, J.D .\nBy:\n/s/ Thomas B Riisager\nName:\nJames B. Bucher, J.D .\nName:\nThomas B Riisager\nTitle:\nSenior Vice President & General Counsel\nTitle:\nVP Corporate Business Development\nAddress: 11804 North Creek Parkway South\nAddress: Ottiliavej 9\nBothell, WA 98011\n2500 Valby\nU.S.A .\nDenmark\nMCDA\nPage5of5\nCONFIDENTIAL	EX-99.(D)(3) 10 d802321dex99d3.htm EX-99.(D)(3)\nExhibit (d)(3)\nl#.LOGO\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (“Agreement”), effective as of the last date of signature below (the “Effective Date”), is made by and between Alder\nBioPharmaceuticals, Inc., a Delaware corporation (together with its subsidiaries, “Discloser”), and the entity identified below (together with its\nsubsidiaries “Recipient”).\n1. Purpose. Discloser and Recipient wish to explore a possible business opportunity of mutual interest regarding commercial partnership for\neptinezumab (the “Compound”) outside of the United States (the “Relationship™) in connection with which Discloser will disclose its Confidential\nInformation (as defined below) to the Recipient. This Agreement is intended to allow the parties to discuss and evaluate the Relationship while\nprotecting the Discloser’s Confidential Information against unauthorized use or disclosure.\n2. Definition of Confidential Information.\n2.1 Confidential Information. “Confidential Information” means all information that is disclosed by the Discloser to the Recipient in whatever\nform it may take, whether computerized, oral, written, graphic, photographic, recorded or other, which (a) is designated in writing to be confidential or\nproprietary, or (b) if given orally, is confirmed in writing as confidential or proprietary within a reasonable time (not to exceed thirty days) after the oral\ndisclosure, or (c) is treated by the Discloser as confidential or proprietary and which a reasonable person would recognize to be confidential or\nproprietary from its nature or the manner of its disclosure. Confidential information may include patents, patent applications, research, product plans,\nproducts, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software (including source and object code),\nhardware configuration, computer programs, algorithms, regulatory information, medical reports, clinical data and analysis, reagents, cell lines,\nbiological materials, chemical formulas, business plans, agreements with third parties, services, customers, marketing or finances of the Discloser and\ndata and information that a third person has disclosed to the Discloser in confidence, which the Discloser is permitted to disclose to the Recipient under\nthis Agreement.\n2.2 Limitation on Confidential Information Disclosed. The parties agree that the Confidential Information initially disclosed by the Discloser\nunder this Agreement will consist substantially of empirical results and data related to the biological, pharmacological and/or clinical activities of the\nCompound and regulatory and/or commercial strategies related to the Compound. The parties further agree that the Confidential Information will\nspecifically not include; (a) any chemical structures, formula, amino acid or nucleic acid sequence for active pharmaceutical ingredients, other than the\nCompound; (b) information about IP strategies and unpublished patents, other than for the Compound; and (c) speculations regarding functionality or\nsuitability for active pharmaceutical ingredients, except for the treatment of migraine and other pain indications with the Compound. Such information\n((@) — (c) above) shall only be considered Confidential Information and thereby subject to the terms and conditions of this Agreement if the Recipient\nhas in advance specifically accepted and confirmed in writing to the Discloser its interest in receiving such information.\n2.3 Confidentiality of Discussions and Agreement. The fact that the parties have discussions regarding the Relationship and this Agreement,\nincluding its terms and conditions, shall be deemed Confidential Information of each party.\n \n2.4 Exceptions. For the purposes of this Agreement, “Confidential Information” of the Discloser does not include any information that the\nRecipient can prove: (a) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Recipient; (b) was\nknown to the Recipient, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (c) is disclosed to\nthe Recipient by a third person who is — to the Recipient’s reasonable knowledge - not under any obligation of confidentiality to the Discloser; or (d) is\nindependently developed by or for the Recipient without the benefit of the Confidential Information of the Discloser.\nMCDA Page 1 of 5 CONFIDENTIAL\n3. Recipient Obligations. The Recipient agrees that it shall (a) not use any of the Discloser’s Confidential Information for the Recipient’s own use or\nfor any purpose other than to carry out discussions concerning, and the undertaking of, the Relationship; (b) not disclose or permit disclosure of any of\nthe Discloser’s Confidential Information to third parties or to employees of the Recipient, other than those directors, officers, employees, consultants and\nagents who are required to have the information in order to carry out the discussions regarding the Relationship and who are bound by obligations of\nconfidentiality at least as restrictive as those set forth in this Agreement; and (c) take all reasonable measures to protect the secrecy of and avoid\ndisclosure or use of the Discloser’s Confidential Information in order to prevent it from falling into the public domain or the possession of persons other\nthan those persons authorized under this Agreement to have any such information. Such measures shall include, but not be limited to, the highest degree\nof care that the Recipient utilizes to protect its own Confidential Information of a similar nature, which shall be no less than an ordinary pharmaceutical\ncompany would use to protect its own confidential information. The Recipient further agrees to notify the Discloser in writing of any actual or suspected\nmisuse, misappropriation or unauthorized disclosure of the Discloser’s Confidential Information which may come to the Recipient’s attention.\n \n4. Legally Required Disclosure. The Recipient may disclose the Discloser’s Confidential Information pursuant to the order or requirement of a court of\ncompetent jurisdiction, administrative agency, or other governmental body; provided, however, that the Recipient without undue delay shall provide\nnotice of such court order or requirement to the Discloser to enable the Discloser to seek a protective order or otherwise prevent or restrict such\ndisclosure. In the event of a limited disclosure of the Discloser’s Confidential Information as set forth in this Section, the Recipient shall continue to\ntreat such information as the Discloser’s Confidential Information for all other purposes and subject to the other terms and conditions of this Agreement.\n5. Destruction of Materials. Any materials or documents that have been furnished by the Discloser to the Recipient in connection with the Relationship\nshall be promptly destroyed by the Recipient, which destruction shall be certified in writing by Recipient, as well as all copies of such documentation,\nwithin ten days after (a) the Relationship has been rejected or concluded or (b) the written request of the Discloser; except the Recipient may keep one\ncopy of any such information for legal record-keeping purposes and shall not be required to erase electronic back-up files made in the ordinary course of\nbusiness provided that such electronic back-up files are not accessed or used for any purpose.\n6. No Rights Granted. All Confidential Information of the Discloser disclosed under this Agreement shall remain the sole property of the Discloser.\nNothing in this Agreement shall be construed as granting the Recipient any rights under any patent, copyright or other intellectual property right of the\nDiscloser, nor shall this Agreement grant the Recipient any rights in or to the Discloser’s Confidential Information other than the limited right to review\nsuch Confidential Information solely for the purpose of determining whether to enter into the Relationship.\n7. Term. This Agreement will be effective for a period of one (1) year after the Effective Date unless earlier terminated by a party upon thirty (30) days’\nprior written notice to the other party. The restrictions on use and disclosure of the Discloser’s Confidential Information by the Recipient shall survive\nany expiration or termination of this Agreement and shall continue in full force and effect for a period of five (5) years thereafter. Each party’s\nobligations under this Agreement shall be binding upon such party’s heirs, successors and assigns.\nMCDA Page 2 of 5 CONFIDENTIAL\n8. Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and\nassigns of the parties, provided that the Discloser’s Confidential Information may not be assigned by the Recipient without the prior written consent of\nthe Discloser. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective\nsuccessors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this\nAgreement.\n9. Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such\nprovision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (a) such\nprovision shall be excluded from this Agreement, (b) the balance of the Agreement shall be interpreted as if such provision were so excluded and (c) the\nbalance of the Agreement shall be enforceable in accordance with its terms.\n10. Independent Contractors. Discloser and Recipient are independent contractors, and nothing contained in this Agreement shall be construed to\nconstitute Discloser and Recipient as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking.\n11. Governing L.aw; Jurisdiction. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall\nbe governed, construed and interpreted in accordance with the laws of the State of Washington, without giving effect to principles of conflicts of law.\nEach of the parties hereto consents to the exclusive jurisdiction and venue of the courts of King County, Washington. The prevailing party shall be\nentitled to recover the reasonable attorneys’ fees and costs incurred by the prevailing party in any action brought to enforce any right arising under this\nAgreement.\n12. Remedies. Discloser and Recipient each agree that its obligations set forth in this Agreement are necessary and reasonable in order to protect the\nDiscloser and its business. Discloser and Recipient each expressly agree that due to the unique nature of the Discloser’s Confidential Information,\nmonetary damages would be inadequate to compensate the Discloser for any breach by the Recipient of its covenants and agreements set forth in this\nAgreement. Accordingly, Discloser and Recipient each agree and acknowledge that any such violation or threatened violation shall cause irreparable\ninjury to the Discloser and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the Discloser shall be entitled to\nobtain injunctive relief (subject to all ordinary requirements for granting such injunctive relief under applicable law being met) against the threatened\nbreach of this Agreement or the continuation of any such breach by the Recipient.\n13. Standstill Provision. Commencing on the Effective Date and for three (3) years thereafter, (the “Standstill Period”), neither Company nor any of\nCompany’s affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will, directly or\nindirectly (i) acquire, offer to acquire, agree to acquire or make a proposal to acquire, by purchase or otherwise, “beneficial ownership” (as defined in\nSection 13(d) of the Exchange Act) of any equity securities or assets, or rights or options to acquire any such securities or assets (through purchase,\nexchange, conversion or otherwise), of Discloser, including derivative securities representing the right to vote or economic benefits of any such\nsecurities; (ii) make, effect or commence any tender or exchange offer, merger or other business combination involving Discloser; (iii) consummate or\ncommence any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Discloser; (iv) make, or in any\nway participate in, any “solicitation” of proxies to vote or consent, or seek to advise or influence any person with respect to the voting of, any voting\nsecurities of Discloser or be or become a “participant” in any “election contest” with respect to Discloser (all within the meaning of Section 14 of the\nExchange Act); (v) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to, or\notherwise act in concert with any person in respect of, any voting equity securities of Discloser; (vi) otherwise act, alone or in concert with others, to\nseek representation on or to control or\nMCDA Page 3 of 5 CONFIDENTIAL\ninfluence the management, board of directors or policies of Discloser or any subsidiary; (vii) negotiate with or provide any information to any person\n(other than the Recipient’s Representatives in accordance with this Agreement) with respect to, or make any statement or proposal to any person (other\nthan the Recipient’s Representatives in accordance with this Agreement) with respect to, or make any public announcement or proposal or offer\nwhatsoever with respect to, or act as a financing source for or otherwise invest in any other persons in connection with, or otherwise solicit, seek or offer\nto effect any transactions or actions described in the foregoing clauses (i) through (vi), or make any other proposal or statement inconsistent with the\nterms of this Agreement or that otherwise could reasonably be expected to result in a public announcement regarding any such transactions or actions; or\n(viii) advise, assist, induce, or encourage any other persons in connection with any of the foregoing; unless and until, in the case of each of the foregoing\nclauses (i) through (viii), the Recipient has received the prior written invitation or approval of Discloser’s board of directors to do so. The Recipient also\nagrees that during the Standstill Period it will not request that Discloser or any of its Representatives amend or waive any provision of this Section 14\n(including this sentence). The Recipient hereby confirms that, as of the date hereof and except as disclosed to Discloser in writing prior to the date\nhereof, the Recipient does not have, directly or indirectly, beneficial ownership of equity securities, or rights or options to own or acquire any such\nsecurities (through purchase, exchange, conversion or otherwise), of Discloser. The expiration of the Standstill Period will not terminate or otherwise\naffect any of the other provisions of this Agreement. As used in this Section 14, “Representatives” means (x) subsidiaries and other affiliates,\n(v) Recipient’s directors, officers, employees, agents, representatives, accountants, attorneys and advisors, and (z) the directors, officers, employees,\npartners, agents, representatives, accountants, attorneys and advisors of Recipient’s subsidiaries and other affiliates.\n14. Amendment and Waiver. Any term of this Agreement may be amended with the written consent of Discloser and Recipient. Any amendment or\nwaiver effected in accordance with this Section shall be binding upon the parties and their respective successors and assigns. Failure to enforce any\nprovision of this Agreement by a party shall not constitute a waiver of any term hereof by such party.\n15. Entire Agreement. This Agreement is the product of both of the parties hereto, and constitutes the entire agreement between such parties pertaining\nto the subject matter hereof, and merges all prior negotiations and drafts of the parties with regard to the transactions contemplated herein. All other\nwritten or oral agreements existing between the parties hereto regarding such transactions are expressly canceled.\n16. Personal data. The parties may, as part of their contractual relationship and to perform their respective obligations under the Agreement, share\npersonal data about certain employees engaged by the parties, as applicable, who are working to fulfil the Agreement (hereinafter “Employees”).\nWithout otherwise limiting the parties’ rights and obligations related to personal data set out in this Agreement, each party acknowledges and agrees that\nit will, on behalf of the other party, provide its own Employees with information about the other party’s collection and processing of the employees’\npersonal data. Such information must comply with applicable data protection laws, including — to the extent applicable — Article 13 and 14 of Regulation\n(EU) 2016/679 of 27 April 2016 (the General Data Protection Regulation).\n17. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together\nshall constitute one instrument. Any signature page delivered by facsimile or electronic image transmission shall be binding to the same extent as an\noriginal signature page.\n[Signature page follows]\nMCDA Page 4 of 5 CONFIDENTIAL\nThe parties have executed this Agreement by their respective duly authorized representatives as of the dates set forth below. Alder BioPharmaceuticals, Inc.\nBy: /s/ James B. Bucher, J.D.\nName: James B. Bucher, J.D.\nTitle: Senior Vice President & General Counsel\nAddress: 11804 North Creek Parkway South\nBothell, WA 98011\nU.S.A.\nMCDA Page 5 of 5\nH. Lundbeck A/S By:\nName:\nTitle:\nAddress:\n/s/ Thomas B Riisager\nThomas B Riisager\nVP Corporate Business Development\nOttiliavej 9\n2500 Valby\nDenmark\nCONFIDENTIAL	EX-99.(D)(3) 10 d802321dex99d3.htm EX-99.(D)(3)\nExhibit (d)(3)\nPLOGO\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement ("Agreement"), effective as of the last date of signature below (the "Effective Date"), is made by and between Alder\nioPharmaceuticals, Inc., a Delaware corporation (together with its subsidiaries, "Discloser"), and the entity identified below (together with its\nsubsidiaries "Recipient").\n1. Purpose. Discloser and Recipient wish to explore a possible business opportunity of mutual interest regarding commercial partnership for\neptinezumab (the "Compound") outside of the United States (the "Relationship") in connection with which Discloser will disclose its Confidential\nInformation (as defined below) to the Recipient. This Agreement is intended to allow the parties to discuss and evaluate the Relationship while\nprotecting the Discloser's Confidential Information against unauthorized use or disclosure.\n2. Definition of Confidential Information.\n2.1 Confidential Information. "Confidential Information" means all information that is disclosed by the Discloser to the Recipient in whatever\nform it may take, whether computerized, oral, written, graphic, photographic, recorded or other, which (a) is designated in writing to be confidential or\nproprietary, or (b) if given orally, is confirmed in writing as confidential or proprietary within a reasonable time (not to exceed thirty days) after the oral\ndisclosure, or (c) is treated by the Discloser as confidential or proprietary and which a reasonable person would recognize to be confidential or\nproprietary from its nature or the manner of its disclosure. Confidential information may include patents, patent applications, research, product plans,\nproducts, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software (including source and object code),\nhardware configuration, computer programs, algorithms, regulatory information, medical reports, clinical data and analysis, reagents, cell lines,\nbiological materials, chemical formulas, business plans, agreements with third parties, services, customers, marketing or finances of the Discloser and\ndata and information that a third person has disclosed to the Discloser in confidence, which the Discloser is permitted to disclose to the Recipient under\nthis Agreement.\n2.2 Limitation on Confidential Information Disclosed. The parties agree that the Confidential Information initially disclosed by the Discloser\nunder this Agreement will consist substantially of empirical results and data related to the biological, pharmacological and/or clinical activities of the\nCompound and regulatory and/or commercial strategies related to the Compound. The parties further agree that the Confidential Information will\nspecifically not include; (a) any chemical structures, formula, amino acid or nucleic acid sequence for active pharmaceutical ingredients, other than the\nCompound; (b) information about IP strategies and unpublished patents, other than for the Compound; and (c) speculations regarding functionality or\nsuitability for active pharmaceutical ingredients, except for the treatment of migraine and other pain indications with the Compound. Such information\n((a) (c) above) shall only be considered Confidential Information and thereby subject to the terms and conditions of this Agreement if the Recipient\nhas in advance specifically accepted and confirmed in writing to the Discloser its interest in receiving such information.\n2.3 Confidentiality. of Discussions and Agreement. The fact that the parties have discussions regarding the Relationship and this Agreement,\nincluding its terms and conditions, shall be deemed Confidential Information of each party.\n2.4 Exceptions. For the purposes of this Agreement, "Confidential Information" of the Discloser does not include any information that the\nRecipient can prove: (a) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Recipient; (b) was\nknown to the Recipient, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (c) is disclosed to\nthe Recipient by a third person who is to the Recipient's reasonable knowledge not under any obligation of confidentiality to the Discloser; or (d) is\nindependently developed by or for the Recipient without the benefit of the Confidential Information of the Discloser.\nMCDA\nPage 1 of 5\nCONFIDENTIAL\n3. Recipient Obligations. The Recipient agrees that it shall (a) not use any of the Discloser's Confidential Information for the Recipient's own use\nor\nfor any purpose other than to carry out discussions concerning, and the undertaking of, the Relationship; (b) not disclose or permit disclosure of any of\nthe\nDiscloser's\nConfidential\nInformation\nto\nthird\nparties\nor\nto\nemployees\nof\nthe\nRecipient,\nother\nthan\nthose\ndirectors,\nofficers,\nemployees,\nconsultants\nand\nagents who are required to have the information in order to carry out the discussions regarding the Relationship and who are bound by obligations of\nconfidentiality at least as restrictive as those set forth in this Agreement; and (c) take all reasonable measures to protect the secrecy of and avoid\ndisclosure\nor\nuse\nof\nthe\nDiscloser's\nConfidential\nInformation\nin\norder\nto\nprevent\nit\nfrom\nfalling\ninto\nthe\npublic\ndomain\nor\nthe\npossession\nof\npersons\nother\nthan those persons authorized under this Agreement to have any such information. Such measures shall include, but not be limited to, the highest degree\nof care that the Recipient utilizes to protect its own Confidential Information of a similar nature, which shall be no less than an ordinary pharmaceutica\ncompany would use to protect its own confidential information. The Recipient further agrees to notify the Discloser in writing of any actual or suspected\nmisuse, misappropriation or unauthorized disclosure of the Discloser's Confidential Information which may come to the Recipient's attention.\n4. Legally Required Disclosure. The Recipient may disclose the Discloser's Confidential Information pursuant to the order or requirement of a court\nof\ncompetent jurisdiction, administrative agency, or other governmental body; provided, however, that the Recipient without undue delay shall provide\nnotice of such court order or requirement to the Discloser to enable the Discloser to seek a protective order or otherwise prevent or restrict such\ndisclosure. In the event of a limited disclosure of the Discloser's Confidential Information as set forth in this Section, the Recipient shall continue to\ntreat such information as the Discloser's Confidential Information for all other purposes and subject to the other terms and conditions of this Agreement\n5. Destruction of Materials. Any materials or documents that have been furnished by the Discloser to the Recipient in connection with the Relationship\nshall be promptly destroyed by the Recipient, which destruction shall be certified in writing by Recipient, as well as all copies of such documentation,\nwithin ten days after (a) the Relationship has been rejected or concluded or (b) the written request of the Discloser; except the Recipient may keep one\ncopy of any such information for legal record-keeping purposes and shall not be required to erase electronic back-up files made in the ordinary course of\nbusiness provided that such electronic back-up files are not accessed or used for any purpose.\n6.\nNo\nRights Granted. All Confidential Information of the Discloser disclosed under this Agreement shall remain the sole property of the Discloser.\nNothing in this Agreement shall be construed as granting the Recipient any rights under any patent, copyright or other intellectual property right of the\nDiscloser, nor shall this Agreement grant the Recipient any rights in or to the Discloser's Confidential Information other than the limited right to review\nsuch Confidential Information solely for the purpose of determining whether to enter into the Relationship.\n7. Term. This Agreement will be effective for a period of one (1) year after the Effective Date unless earlier terminated by a party upon thirty (30) days'\nprior written notice to the other party. The restrictions on use and disclosure of the Discloser's Confidential Information by the Recipient shall survive\nany expiration or termination of this Agreement and shall continue in full force and effect for a period of five (5) years thereafter. Each party's\nobligations under this Agreement shall be binding upon such party's heirs, successors and assigns.\nMCDA\nPage 2 of 5\nCONFIDENTIAL\n8.\nSuccessors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and\nassigns of the parties, provided that the Discloser's Confidential Information may not be assigned by the Recipient without the prior written consent\nof\nthe\nDiscloser.\nNothing\nin\nthis\nAgreement,\nexpress\nor\nimplied,\nis\nintended\nto\nconfer\nupon\nany\nparty\nother\nthan\nthe\nparties\nhereto\nor\ntheir\nrespective\nsuccessors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this\nAgreement.\n9. Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate\nsuch\nprovision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (a) such\nprovision shall be excluded from this Agreement, (b) the balance of the Agreement shall be interpreted as if such provision were so excluded and (c) the\nbalance of the Agreement shall be enforceable in accordance with its terms.\n10. Independent Contractors. Discloser and Recipient are independent contractors, and nothing contained in this Agreement shall be construed\nto\nconstitute Discloser and Recipient as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking.\n11. Governing Law; Jurisdiction. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall\nbe governed, construed and interpreted in accordance with the laws of the State of Washington, without giving effect to principles of conflicts of law.\nEach of the parties hereto consents to the exclusive jurisdiction and venue of the courts of King County, Washington. The prevailing party shall be\nentitled to recover the reasonable attorneys' fees and costs incurred by the prevailing party in any action brought to enforce any right arising under this\nAgreement.\n12. Remedies. Discloser and Recipient each agree that its obligations set forth in this Agreement are necessary and reasonable in order to protect the\nDiscloser and its business. Discloser and Recipient each expressly agree that due to the unique nature of the Discloser's Confidential Information,\nmonetary\ndamages\nwould\nbe\ninadequate\nto\ncompensate\nthe\nDiscloser\nfor\nany\nbreach\nby\nthe\nRecipient\nof\nits\ncovenants\nand\nagreements\nset\nforth\nin\nthis\nAgreement. Accordingly, Discloser and Recipient each agree and acknowledge that any such violation or threatened violation shall cause irreparable\ninjury to the Discloser and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the Discloser shall be entitled\nto\nobtain injunctive relief (subject to all ordinary requirements for granting such injunctive relief under applicable law being met) against the threatened\nbreach of this Agreement or the continuation of any such breach by the Recipient.\n13. Standstill Provision. Commencing on the Effective Date and for three (3) years thereafter, (the "Standstill Period"), neither Company nor any of\nCompany's affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) will, directly or\nindirectly (i) acquire, offer to acquire, agree to acquire or make a proposal to acquire, by purchase or otherwise, "beneficial ownership" (as defined in\nSection 13(d) of the Exchange Act) of any equity securities or assets, or rights or options to acquire any such securities or assets (through purchase,\nexchange, conversion or otherwise), of Discloser, including derivative securities representing the right to vote or economic benefits of any such\nsecurities; (ii) make, effect or commence any tender or exchange offer, merger or other business combination involving Discloser; (iii) consummate or\ncommence any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Discloser; (iv) make, or in any\nway participate in, any "solicitation" of proxies to vote or consent, or seek to advise or influence any person with respect to the voting of, any voting\nsecurities of Discloser or be or become a "participant" in any "election contest" with respect to Discloser (all within the meaning of Section 14 of\nthe\nExchange Act); (v) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to,\nor\notherwise act in concert with any person in respect of, any voting equity securities of Discloser; (vi) otherwise act, alone or in concert with others, to\nseek representation on or to control or\nMCDA\nPage 3 of 5\nCONFIDENTIAL\ninfluence the management, board of directors or policies of Discloser or any subsidiary; (vii) negotiate with or provide any information to any person\n(other than the Recipient's Representatives in accordance with this Agreement) with respect to, or make any statement or proposal to any person (other\nthan the Recipient's Representatives in accordance with this Agreement) with respect to, or make any public announcement or proposal or offer\nwhatsoever with respect to, or act as a financing source for or otherwise invest in any other persons in connection with, or otherwise solicit, seek or offer\nto effect any transactions or actions described in the foregoing clauses (i) through (vi), or make any other proposal or statement inconsistent with\nthe\nterms of this Agreement or that otherwise could reasonably be expected to result in a public announcement regarding any such transactions or actions;\nor\n(viii) advise, assist, induce, or encourage any other persons in connection with any of the foregoing; unless and until, in the case of each of the foregoing\nclauses (i) through (viii), the Recipient has received the prior written invitation or approval of Discloser's board of directors to do so. The Recipient also\nagrees that during the Standstill Period it will not request that Discloser or any of its Representatives amend or waive any provision of this Section 14\n(including this sentence). The Recipient hereby confirms that, as of the date hereof and except as disclosed to Discloser in writing prior to the date\nhereof, the Recipient does not have, directly or indirectly, beneficial ownership of equity securities, or rights or options to own or acquire any such\nsecurities (through purchase, exchange, conversion or otherwise), of Discloser. The expiration of the Standstill Period will not terminate or otherwise\naffect any of the other provisions of this Agreement. As used in this Section 14, "Representatives" means (x) subsidiaries and other affiliates,\n(y) Recipient's directors, officers, employees, agents, representatives, accountants, attorneys and advisors, and (z) the directors, officers, employees,\npartners, agents, representatives, accountants, attorneys and advisors of Recipient's subsidiaries and other affiliates.\n14. Amendment and Waiver. Any term of this Agreement may be amended with the written consent of Discloser and Recipient. Any amendment or\nwaiver effected in accordance with this Section shall be binding upon the parties and their respective successors and assigns. Failure to enforce any\nprovision of this Agreement by a party shall not constitute a waiver of any term hereof by such party.\n15. Entire Agreement. This Agreement is the product of both of the parties hereto, and constitutes the entire agreement between such parties pertaining\nto the subject matter hereof, and merges all prior negotiations and drafts of the parties with regard to the transactions contemplated herein. All other\nwritten or oral agreements existing between the parties hereto regarding such transactions are expressly canceled.\n16. Personal data. The parties may, as part of their contractual relationship and to perform their respective obligations under the Agreement, share\npersonal data about certain employees engaged by the parties, as applicable, who are working to fulfil the Agreement (hereinafter "Employees").\nWithout otherwise limiting the parties' rights and obligations related to personal data set out in this Agreement, each party acknowledges and agrees that\nit will, on behalf of the other party, provide its own Employees with information about the other party's collection and processing of the employees'\npersonal data. Such information must comply with applicable data protection laws, including - to the extent applicable - Article 13 and 14 of Regulation\n(EU) 2016/679 of 27 April 2016 (the General Data Protection Regulation).\n17. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together\nshall constitute one instrument. Any signature page delivered by facsimile or electronic image transmission shall be binding to the same extent as\nan\noriginal signature page.\n[Signature page follows]\nMCDA\nPage 4 of 5\nCONFIDENTIAL\nThe parties have executed this Agreement by their respective duly authorized representatives as of the dates set forth below.\nAlder BioPharmaceuticals, Inc.\nH. Lundbeck A/S\nBy:\n/s/ James B. Bucher, J.D.\nBy:\n/s/ Thomas B Riisager\nName:\nJames B. Bucher, J.D.\nName:\nThomas B Riisager\nTitle:\nSenior Vice President & General Counsel\nTitle:\nVP Corporate Business Development\nAddress: 11804 North Creek Parkway South\nAddress: Ottiliavej 9\nBothell, WA 98011\n2500 Valby\nU.S.A.\nDenmark\nMCDA\nPage 5 of 5\nCONFIDENTIAL	EX-99.(D)(3) 10 d802321dex99d3.htm EX-99.(D)(3)\nExhibit (d)(3)\nLOGO\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (“Agreement”), effective as of the last date of signature below (the “Effective Date”), is made by and between Alder\nBioPharmaceuticals, Inc., a Delaware corporation (together with its subsidiaries, “Discloser”), and the entity identified below (together with its\nsubsidiaries “Recipient”).\n1. Purpose. Discloser and Recipient wish to explore a possible business opportunity of mutual interest regarding commercial partnership for\neptinezumab (the “Compound”) outside of the United States (the “Relationship”) in connection with which Discloser will disclose its Confidential\nInformation (as defined below) to the Recipient. This Agreement is intended to allow the parties to discuss and evaluate the Relationship while\nprotecting the Discloser’s Confidential Information against unauthorized use or disclosure.\n2. Definition of Confidential Information.\n2.1 Confidential Information. “Confidential Information” means all information that is disclosed by the Discloser to the Recipient in whatever\nform it may take, whether computerized, oral, written, graphic, photographic, recorded or other, which (a) is designated in writing to be confidential or\nproprietary, or (b) if given orally, is confirmed in writing as confidential or proprietary within a reasonable time (not to exceed thirty days) after the oral\ndisclosure, or (c) is treated by the Discloser as confidential or proprietary and which a reasonable person would recognize to be confidential or\nproprietary from its nature or the manner of its disclosure. Confidential information may include patents, patent applications, research, product plans,\nproducts, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software (including source and object code),\nhardware configuration, computer programs, algorithms, regulatory information, medical reports, clinical data and analysis, reagents, cell lines,\nbiological materials, chemical formulas, business plans, agreements with third parties, services, customers, marketing or finances of the Discloser and\ndata and information that a third person has disclosed to the Discloser in confidence, which the Discloser is permitted to disclose to the Recipient under\nthis Agreement.\n2.2 Limitation on Confidential Information Disclosed. The parties agree that the Confidential Information initially disclosed by the Discloser\nunder this Agreement will consist substantially of empirical results and data related to the biological, pharmacological and/or clinical activities of the\nCompound and regulatory and/or commercial strategies related to the Compound. The parties further agree that the Confidential Information will\nspecifically not include; (a) any chemical structures, formula, amino acid or nucleic acid sequence for active pharmaceutical ingredients, other than the\nCompound; (b) information about IP strategies and unpublished patents, other than for the Compound; and (c) speculations regarding functionality or\nsuitability for active pharmaceutical ingredients, except for the treatment of migraine and other pain indications with the Compound. Such information\n((a) – (c) above) shall only be considered Confidential Information and thereby subject to the terms and conditions of this Agreement if the Recipient\nhas in advance specifically accepted and confirmed in writing to the Discloser its interest in receiving such information.\n2.3 Confidentiality of Discussions and Agreement. The fact that the parties have discussions regarding the Relationship and this Agreement,\nincluding its terms and conditions, shall be deemed Confidential Information of each party.\n2.4 Exceptions. For the purposes of this Agreement, “Confidential Information” of the Discloser does not include any information that the\nRecipient can prove: (a) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Recipient; (b) was\nknown to the Recipient, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (c) is disclosed to\nthe Recipient by a third person who is – to the Recipient’s reasonable knowledge - not under any obligation of confidentiality to the Discloser; or (d) is\nindependently developed by or for the Recipient without the benefit of the Confidential Information of the Discloser.\nMCDA\nPage1of5\nCONFIDENTIAL\n3. Recipient Obligations. The Recipient agrees that it shall (a) not use any of the Discloser’s Confidential Information for the Recipient’s own use or\nfor any purpose other than to carry out discussions concerning, and the undertaking of, the Relationship; (b) not disclose or permit disclosure of any of\nthe Discloser’s Confidential Information to third parties or to employees of the Recipient, other than those directors, officers, employees, consultants and\nagents who are required to have the information in order to carry out the discussions regarding the Relationship and who are bound by obligations of\nconfidentiality at least as restrictive as those set forth in this Agreement; and (c) take all reasonable measures to protect the secrecy of and avoid\ndisclosure or use of the Discloser’s Confidential Information in order to prevent it from falling into the public domain or the possession of persons other\nthan those persons authorized under this Agreement to have any such information. Such measures shall include, but not be limited to, the highest degree\nof care that the Recipient utilizes to protect its own Confidential Information of a similar nature, which shall be no less than an ordinary pharmaceutical\ncompany would use to protect its own confidential information. The Recipient further agrees to notify the Discloser in writing of any actual or suspected\nmisuse, misappropriation or unauthorized disclosure of the Discloser’s Confidential Information which may come to the Recipient’s attention.\n4. Legally Required Disclosure. The Recipient may disclose the Discloser’s Confidential Information pursuant to the order or requirement of a court of\ncompetent jurisdiction, administrative agency, or other governmental body; provided, however, that the Recipient without undue delay shall provide\nnotice of such court order or requirement to the Discloser to enable the Discloser to seek a protective order or otherwise prevent or restrict such\ndisclosure. In the event of a limited disclosure of the Discloser’s Confidential Information as set forth in this Section, the Recipient shall continue to\ntreat such information as the Discloser’s Confidential Information for all other purposes and subject to the other terms and conditions of this Agreement.\n5. Destruction of Materials. Any materials or documents that have been furnished by the Discloser to the Recipient in connection with the Relationship\nshall be promptly destroyed by the Recipient, which destruction shall be certified in writing by Recipient, as well as all copies of such documentation,\nwithin ten days after (a) the Relationship has been rejected or concluded or (b) the written request of the Discloser; except the Recipient may keep one\ncopy of any such information for legal record-keeping purposes and shall not be required to erase electronic back-up files made in the ordinary course of\nbusiness provided that such electronic back-up files are not accessed or used for any purpose.\n6. No Rights Granted. All Confidential Information of the Discloser disclosed under this Agreement shall remain the sole property of the Discloser.\nNothing in this Agreement shall be construed as granting the Recipient any rights under any patent, copyright or other intellectual property right of the\nDiscloser, nor shall this Agreement grant the Recipient any rights in or to the Discloser’s Confidential Information other than the limited right to review\nsuch Confidential Information solely for the purpose of determining whether to enter into the Relationship.\n7. Term. This Agreement will be effective for a period of one (1) year after the Effective Date unless earlier terminated by a party upon thirty (30) days’\nprior written notice to the other party. The restrictions on use and disclosure of the Discloser’s Confidential Information by the Recipient shall survive\nany expiration or termination of this Agreement and shall continue in full force and effect for a period of five (5) years thereafter. Each party’s\nobligations under this Agreement shall be binding upon such party’s heirs, successors and assigns.\nMCDA\nPage2of5\nCONFIDENTIAL\n8. Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and\nassigns of the parties, provided that the Discloser’s Confidential Information may not be assigned by the Recipient without the prior written consent of\nthe Discloser. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective\nsuccessors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this\nAgreement.\n9. Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such\nprovision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (a) such\nprovision shall be excluded from this Agreement, (b) the balance of the Agreement shall be interpreted as if such provision were so excluded and (c) the\nbalance of the Agreement shall be enforceable in accordance with its terms.\n10. Independent Contractors. Discloser and Recipient are independent contractors, and nothing contained in this Agreement shall be construed to\nconstitute Discloser and Recipient as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking.\n11. Governing Law; Jurisdiction. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall\nbe governed, construed and interpreted in accordance with the laws of the State of Washington, without giving effect to principles of conflicts of law.\nEach of the parties hereto consents to the exclusive jurisdiction and venue of the courts of King County, Washington. The prevailing party shall be\nentitled to recover the reasonable attorneys’ fees and costs incurred by the prevailing party in any action brought to enforce any right arising under this\nAgreement.\n12. Remedies. Discloser and Recipient each agree that its obligations set forth in this Agreement are necessary and reasonable in order to protect the\nDiscloser and its business. Discloser and Recipient each expressly agree that due to the unique nature of the Discloser’s Confidential Information,\nmonetary damages would be inadequate to compensate the Discloser for any breach by the Recipient of its covenants and agreements set forth in this\nAgreement. Accordingly, Discloser and Recipient each agree and acknowledge that any such violation or threatened violation shall cause irreparable\ninjury to the Discloser and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the Discloser shall be entitled to\nobtain injunctive relief (subject to all ordinary requirements for granting such injunctive relief under applicable law being met) against the threatened\nbreach of this Agreement or the continuation of any such breach by the Recipient.\n13. Standstill Provision. Commencing on the Effective Date and for three (3) years thereafter, (the “Standstill Period”), neither Company nor any of\nCompany’s affiliates (as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) will, directly or\nindirectly (i) acquire, offer to acquire, agree to acquire or make a proposal to acquire, by purchase or otherwise, “beneficial ownership” (as defined in\nSection 13(d) of the Exchange Act) of any equity securities or assets, or rights or options to acquire any such securities or assets (through purchase,\nexchange, conversion or otherwise), of Discloser, including derivative securities representing the right to vote or economic benefits of any such\nsecurities; (ii) make, effect or commence any tender or exchange offer, merger or other business combination involving Discloser; (iii) consummate or\ncommence any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Discloser; (iv) make, or in any\nway participate in, any “solicitation” of proxies to vote or consent, or seek to advise or influence any person with respect to the voting of, any voting\nsecurities of Discloser or be or become a “participant” in any “election contest” with respect to Discloser (all within the meaning of Section 14 of the\nExchange Act); (v) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to, or\notherwise act in concert with any person in respect of, any voting equity securities of Discloser; (vi) otherwise act, alone or in concert with others, to\nseek representation on or to control or\nMCDA\nPage3of5\nCONFIDENTIAL\ninfluence the management, board of directors or policies of Discloser or any subsidiary; (vii) negotiate with or provide any information to any person\n(other than the Recipient’s Representatives in accordance with this Agreement) with respect to, or make any statement or proposal to any person (other\nthan the Recipient’s Representatives in accordance with this Agreement) with respect to, or make any public announcement or proposal or offer\nwhatsoever with respect to, or act as a financing source for or otherwise invest in any other persons in connection with, or otherwise solicit, seek or offer\nto effect any transactions or actions described in the foregoing clauses (i) through (vi), or make any other proposal or statement inconsistent with the\nterms of this Agreement or that otherwise could reasonably be expected to result in a public announcement regarding any such transactions or actions; or\n(viii) advise, assist, induce, or encourage any other persons in connection with any of the foregoing; unless and until, in the case of each of the foregoing\nclauses (i) through (viii), the Recipient has received the prior written invitation or approval of Discloser’s board of directors to do so. The Recipient also\nagrees that during the Standstill Period it will not request that Discloser or any of its Representatives amend or waive any provision of this Section 14\n(including this sentence). The Recipient hereby confirms that, as of the date hereof and except as disclosed to Discloser in writing prior to the date\nhereof, the Recipient does not have, directly or indirectly, beneficial ownership of equity securities, or rights or options to own or acquire any such\nsecurities (through purchase, exchange, conversion or otherwise), of Discloser. The expiration of the Standstill Period will not terminate or otherwise\naffect any of the other provisions of this Agreement. As used in this Section 14, “Representatives” means (x) subsidiaries and other affiliates,\n(y) Recipient’s directors, officers, employees, agents, representatives, accountants, attorneys and advisors, and (z) the directors, officers, employees,\npartners, agents, representatives, accountants, attorneys and advisors of Recipient’s subsidiaries and other affiliates.\n14. Amendment and Waiver. Any term of this Agreement may be amended with the written consent of Discloser and Recipient. Any amendment or\nwaiver effected in accordance with this Section shall be binding upon the parties and their respective successors and assigns. Failure to enforce any\nprovision of this Agreement by a party shall not constitute a waiver of any term hereof by such party.\n15. Entire Agreement. This Agreement is the product of both of the parties hereto, and constitutes the entire agreement between such parties pertaining\nto the subject matter hereof, and merges all prior negotiations and drafts of the parties with regard to the transactions contemplated herein. All other\nwritten or oral agreements existing between the parties hereto regarding such transactions are expressly canceled.\n16. Personal data. The parties may, as part of their contractual relationship and to perform their respective obligations under the Agreement, share\npersonal data about certain employees engaged by the parties, as applicable, who are working to fulfil the Agreement (hereinafter “Employees”).\nWithout otherwise limiting the parties’ rights and obligations related to personal data set out in this Agreement, each party acknowledges and agrees that\nit will, on behalf of the other party, provide its own Employees with information about the other party’s collection and processing of the employees’\npersonal data. Such information must comply with applicable data protection laws, including – to the extent applicable – Article 13 and 14 of Regulation\n(EU) 2016/679 of 27 April 2016 (the General Data Protection Regulation).\n17. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together\nshall constitute one instrument. Any signature page delivered by facsimile or electronic image transmission shall be binding to the same extent as an\noriginal signature page.\n[Signature page follows]\nMCDA\nPage4of5\nCONFIDENTIAL\nThe parties have executed this Agreement by their respective duly authorized representatives as of the dates set forth below.\nAlder BioPharmaceuticals, Inc.\nH. Lundbeck A/S\nBy:\n/s/ James B. Bucher, J.D .\nBy:\n/s/ Thomas B Riisager\nName:\nJames B. Bucher, J.D .\nName:\nThomas B Riisager\nTitle:\nSenior Vice President & General Counsel\nTitle:\nVP Corporate Business Development\nAddress: 11804 North Creek Parkway South\nAddress: Ottiliavej 9\nBothell, WA 98011\n2500 Valby\nU.S.A .\nDenmark\nMCDA\nPage5of5\nCONFIDENTIAL
+f5767a1bcfba57c7f5d07b9404a9ac3a.pdf	effective_date jurisdiction party term	EX-10.58 4 d13265dex1058.htm EX-10.58\nExhibit 10.58\nNon-Solicitation and Non-Disclosure Agreement\nUS Foods, Inc. (the “Company” as defined below) and Employee, for good and valuable consideration, the receipt and sufficiency of which\nhereby are acknowledged, knowingly and voluntarily agree as follows:\n1. Representations and Acknowledgments.\n(a) Consideration. In consideration for Employee’s agreement to enter into this Non-Solicitation and Non-Disclosure Agreement\n(the “Agreement”) and to be bound by its terms, Employee has received: (i) employment or continued employment; (ii) access to Company\nrelationships and Confidential Information described herein; (iii) the ability to participate in the Company’s Points of Focus program, a Company\nstock incentive plan, and/or other similar Company-sponsored programs or plans; and/or (iv) other good and valuable consideration.\n(b) Confidential Information and Goodwill. The Company agrees that upon the commencement of Employee’s employment (if a\nnew Employee) or continuation of employment coinciding with the Employee’s execution of this Agreement (if a current Employee), the\nCompany will make available, give Employee access to, allow Employee to become familiar with, and allow Employee to acquire knowledge of\nthe Company, its Customers, employees, operations, pricing methods, delivery schedules, sources of supply, vendor information, supplier\narrangements, shipping and routing procedures and schedules, order routing and/or freight management software, specialized routine and/or\nfreight management strategy and procedures, financial information, and other Confidential Information of the Company and its Customers that\nwill assist and enhance Employee’s ability to perform Employee’s duties with the Company. Employee recognizes that Employee, on behalf of\nthe Company, will develop close relationships with, gain special knowledge of, and promote and develop the loyalty of said customers and\nvendors. The Company’s Confidential Information, the goodwill of its customers and vendors, and its relationship with its employees have been\nand will continue to be developed through the Company’s investment of substantial time, effort and money. Employee further recognizes that\nEmployee is in a position to unfairly convert the Company’s business, customer accounts, vendor relationships and goodwill of customers,\nvendors and employees for use by Employee and other Persons in competition with the Company, and that this would cause the Company to\nsuffer immediate and irreparable injury.\n(c) No Other Agreement or Understanding. Employee represents and warrants that Employee is not a party to any agreement or\nunderstanding which would impair Employee’s ability to enter into this Agreement or otherwise preclude or restrict Employee’s employment\nwith the Company, and that Employee’s execution of this Agreement and employment with the Company will not violate any other agreement or\nunderstanding to which Employee is bound.\n(d) Survival. If, after executing this Agreement, Employee: (i) is promoted to, assigned to or otherwise assumes one or more\npositions or functions other than or in addition to Employee’s position or functions at the time Employee signed this Agreement, regardless of\ntitle, or (ii) is transferred or assigned to or otherwise works for any affiliate, subsidiary or other\n1\ndivision or business unit of the Company, the terms of this Agreement shall continue to apply with full force and effect. Employee acknowledges\nand understands that unless and until a subsequent written Agreement is signed by all parties to this Agreement that expressly supersedes this\nAgreement, this Agreement will continue in full force and effect.\n(e) PRESERVATION OF AT-WILL EMPLOYMENT RELATIONSHIP. EMPLOYEE AGREES THAT NO PROVISION IN\nTHIS AGREEMENT SHALL BE CONSTRUED TO CREATE AN EXPRESS OR IMPLIED EMPLOYMENT CONTRACT OR A PROMISE\nOF EMPLOYMENT FOR ANY SPECIFIC PERIOD OF TIME. EMPLOYEE FURTHER ACKNOWLEDGES AND AGREES THAT\nEMPLOYEE’S EMPLOYMENT WITH THE COMPANY IS “AT WILL” (UNLESS EMPLOYEE ENTERED INTO A WRITTEN\nEMPLOYMENT CONTRACT EXPRESSLY PROVIDING THAT HIS/HER EMPLOYMENT IS NOT AT WILL AND SIGNED BY AN\nOFFICER OF US FOODS, INC. WHO IS AUTHORIZED TO DO SO) AND CAN BE TERMINATED AT ANY TIME BY THE COMPANY\nOR EMPLOYEE, WITH OR WITHOUT REASON, WITH OR WITHOUT NOTICE, AND WITH OR WITHOUT CAUSE.\n(f) Termination of Employment. Employee understands and agrees that the obligations and restrictions imposed under this\nAgreement shall apply after the termination of employment, regardless of whether such termination is voluntary or involuntary, or is with or\nwithout cause or notice.\n2. Definitions. For the purposes of this Agreement, the following terms shall have the following meanings:\n(a) “Associate” means an employee of the Company.\n(b) “Company” means US Foods, Inc., its subsidiaries, its parent company USF Holding Corp., any entity owned or controlled by\nUSF Holding Corp. or US Foods, Inc. as well as any other businesses that US Foods, Inc., may acquire or establish after the execution of this\nAgreement and any successors and assigns.\n(c) “Business of the Company” is the food and foodservice distribution business, including the acquisition, procurement, production,\nsale and distribution of food and related products, equipment, goods and services to restaurants, schools, hospitals, and other institutions or\nestablishments that serve food.\n(d) “Person(s)” mean all individuals, partnerships, corporations, limited liability companies, firms, businesses, and other entities,\nother than the Company.\n(e) “Confidential Information” means any information (in whatever form and whether or not recorded in any media) relating to the\nBusiness of the Company (whether constituting a trade secret or not) and including, but not limited to, customer and vendor lists or other\ndocuments containing the names and/or job titles of the principal contact(s) of each customer and/or vendor; customer and vendor documents,\nrouting arrangements, files, purchases and account history; vendor information; route lists of sales employees; pricing, margins, sales allowances,\ndiscounts, incentives and pricing strategies and policies; invoices; procurement strategies and pricing; marketing and product information; order\nguides or histories; sales data\n2\nfor any employee, product, customer or territory; sales and delivery schedules; credit terms, policies and information, including invoicing and\npayment records; information on customer or vendor preferences; promotional programs; financial information of the Company or its customers\nor vendors; the terms, conditions and structures of the Company’s contracts and agreements with customers, vendors and suppliers; information\npertaining to the Company’s methods of operation, processes, strategies and techniques, including strategies for identifying and satisfying the\nneeds of specific customers and types of customers; and lists containing personal and personnel information about other employees of the\nCompany, including but not limited to their home and business telephone, mobile and pager numbers, addresses, compensation terms, customers\nserved by and vendors assigned to such employees, and job performance; which (i) is or has been disclosed to Employee (or of which Employee\nbecame aware) as a consequence of or through his or her relationship to the Company, (ii) has value to the Company or would be of value (actual\nor potential) to a competitor of the Company, and (iii) is not generally known, or readily available by lawful means, to the public (including\ncompiled information that is not publicly available in such a consolidated form). Confidential Information shall not include any information that\nhas been voluntarily disclosed to the public by the Company (except where such public disclosure has been made by Employee without\nauthorization) or that has been independently developed and disclosed by others, or that otherwise has entered the public domain through lawful\nmeans.\n(f) “Pre-Termination Period” means the eighteen (18) month period immediately prior to the termination of Employee’s\nemployment with the Company.\n(g) “Inventions.” For purposes of this Agreement, “Inventions” shall mean all software programs, source or object code,\nimprovements, formulas, developments, ideas, processes, techniques, know-how, data, and discoveries, whether patentable or unpatentable,\neither conceived or reduced to practice by Employee while in the Company’s or an Affiliated Company’s employ, either solely or jointly with\nothers, and whether or not during regular working hours, or conceived or reduced to practice by Employee within one year of the termination of\nEmployee’s employment with the Company using Company Confidential Information.\n(h) “Company Inventions.” For purposes of this Agreement, “Company Inventions” shall mean any Invention that either:\n(1) relates, at least in part, at the time of conception or reduction to practice of the Invention, to:\ni.\nthe Company’s Business, projects or products, or to the manufacture or utilization thereof; or\nii. the Company’s and/or an Affiliated Company’s actual or demonstrably anticipated research or development; or\n(2) results, at least in part, from any work performed directly or indirectly by Employee for the Company; or\n(3) results, at least in part, from the use of the Company’s or an Affiliated Company’s equipment, supplies, facilities or trade\nsecret information.\n3\n3. Non-Disclosure of Confidential Information.\n(a) At no time, either during or after the termination of employment, shall Employee directly or indirectly obtain, disclose or use for\nEmployee or any Person, or aid others in obtaining, disclosing or using any Confidential Information of the Company, other than as may be\nrequired in the performance of duties for and as authorized by the Company. All Confidential Information is and shall remain the sole property of\nthe Company. The Company understands that under the current laws of certain states, restrictions on the use or disclosure of confidential\ninformation must be of a finite duration. Accordingly, the parties agree that should the law of such a state be applied to this Agreement, the\nrestrictions on the use or disclosure of Confidential Information that is not a trade secret (the restriction on the use or disclosure of which shall be\nunlimited by time) shall apply only for a period of two (2) years from the termination of Employee’ s employment with the Company, which\nperiod Employee acknowledges to be reasonable under the circumstances at the time of execution of the Agreement.\n(b) Notwithstanding anything to the contrary, this Agreement shall not prevent Employee from revealing evidence of criminal\nwrongdoing to law enforcement or prohibit Employee from divulging Confidential Information by order of court or agency of competent\njurisdiction. However, Employee shall promptly inform the Company of any such situations and shall take such reasonable steps to prevent\ndisclosure of Confidential Information until the Company has been informed of such requested disclosure and the Company has had an\nopportunity to respond to the court or agency.\n4. Return of Company Property and Confidential Information. All records, files, customer order guides, pricelists, photo/videographic\nmaterials, computers and computer related equipment (e.g . hardware, software, disks, electronic storage devices, etc.), cell phones, smart phones,\nBlackberries, personal data assistants, keys, equipment, access cards, passwords, access codes, badges, credit cards or other tangible material,\nand all other documents, including but not limited to Confidential Information, Employee receives, acquires, produces or has access to as a result\nof his or her employment with the Company (regardless of the medium in which any information is stored) (collectively “Property”), are the\nexclusive property of the Company. Upon the termination of Employee’s employment, Employee shall return to the Company all Property of the\nCompany and all copies thereof in Employee’s possession or control.\n5. Non-Solicitation of Restricted Customers.\n(a) For the one (1) year period following the termination of Employee’s employment with the Company, Employee shall not, directly\nor indirectly, (for Employee or any other Person, whether as an employee, owner, consultant, independent contractor, or in any other capacity) for\nthe purpose of providing products or services competitive with those conducted, authorized, offered or provided by the Company, solicit, market,\nservice, contact, sell to or attempt to sell to any Person(s):\n(1) to whom Employee sold products or services on behalf of the Company at any time during the Pre-Termination Period,\nincluding sales performed while Employee was in training or providing vacation or leave coverage for another Associate; or\n4\n(2) to whom the Company sold products or services and with whom Employee had contact on behalf of the Company in\nconnection with such sale at any time during the Pre-Termination Period; or\n(3) to whom the Company sold products or services at any time during the Pre-Termination Period and which sale was made\nthrough any Associate whom Employee directly or indirectly managed or supervised (at any level of management or supervision); or\n(4) with regard to whom, at any time during the Pre-Termination Period, Employee (or any Associate whom Employee directly\nor indirectly managed or supervised, at any level of management or supervision): (i) participated in the preparation of a written sales\nproposal or bid containing Confidential Information to such Person on behalf of the Company; (ii) participated in the setting of\nprices, margins, or credit terms for such Person(s) on behalf of the Company; or (iii) used or received or created or reviewed any\nConfidential Information relating to such Person(s) on behalf of the Company; or\n(5) who is, or functions as, a food broker or contract management company or group purchasing organization or otherwise\nrepresents one or more customers or negotiates on their behalf, and to whom or through whom Employee or any Associate whom\nEmployee directly or indirectly managed or supervised (at any level of management or supervision) sold products or services on\nbehalf of the Company at any time during the Pre-Termination Period.\n(b) A “Restricted Customer” is that and are those Person(s) identified in Section 5(a) and 5(b) herein.\n(c) Examples of indirect solicitation, marketing, servicing, contacting, selling to or attempting to sell to, include but are not limited to,\nproviding Confidential Information to a Person(s) regarding a Restricted Customer; advising or encouraging a Restricted Customer to reduce or\ncease doing business with the Company or to do business with a Person that provides products or services competitive with the Company;\nswitching or swapping sales, solicitation, or service responsibility for a Restricted Customer with an employee of a Person that is competitive\nwith the Company; participating in the supervision or management of any Person or employee of such Person, regardless of other intervening\nlevels of management or supervision, with regard to a Restricted Customer; participating in the setting of prices, credit terms or margins for a\nRestricted Customer; participating in developing and executing marketing and sales strategies and decisions affecting a Restricted Customer; and\nreceiving any personal benefit (present or future) in the event a Restricted Customer should do any business with a Person.\n5\n6. Non-Solicitation of Company Employees. For a period of one (1) year following Employee’s termination of employment with the\nCompany, Employee will not, directly or indirectly, on behalf Employee or for any other Person, entice, induce, encourage or solicit or attempt to\nentice, induce, encourage or solicit any individual then employed by the Company and with whom the Employee had work-related dealings as a\nco-employee of the Company to leave such employment with the Company (this provision is not intended to restrict communications addressed\nto the general public, such as advertising to fill open positions) nor will the Employee hire any such individual for any other Person during the\nsame one-year period following the Employee’s termination.\n7. Ownership of Inventions.\n(a) Employee shall disclose all Inventions promptly and fully to the Company.\n(b) Except as excluded in Section 7(e) below, Employee hereby assigns, and agrees to assign, to the Company all of Employee’s\nright, title and interest in and to all Company Inventions and agrees that all such Company Inventions shall be the Company’s sole and exclusive\nproperty to the maximum extent permitted by law.\n(c) Employee shall at the request of the Company (but without additional compensation from the Company): (i) execute any and all\npapers and perform all lawful acts that the Company deems necessary for the preparation, filing, prosecution, and maintenance of applications for\nUnited States patents or copyrights and foreign patents or copyrights on any Company Inventions, (ii) execute such instruments as are necessary\nto assign to the Company or to the Company’s nominee, all of Employee’s right, title and interest in any Company Inventions so as to establish or\nperfect in the Company or in the Company’s nominee, the entire right, title and interest in such Company Inventions, and (iii) execute any\ninstruments necessary or that the Company may deem desirable in connection with any continuation, renewal or reissue of any patents in any\nCompany Inventions, renewal of any copyright registrations for any Company Inventions, or in the conduct of any proceedings or litigation\nrelating to any Company Inventions. All expenses incurred by the Employee by reason of the performance of any of the obligations set forth in\nthis Section 7(e) shall be borne by the Company.\n(d) Concurrent with Employee’s execution of this Agreement, Employee attaches a list and brief description of all unpatented\ninventions and discoveries, if any, made or conceived by Employee prior to Employee’s employment with the Company and that are to be\nexcluded from this Agreement. If no such list is attached at the time of execution of this Agreement, it shall be conclusively presumed that\nEmployee has waived any right Employee may have to any such invention or discovery which relates to the Company’s Business.\n(e) Provisions (a) through (d) of this Section 7 regarding assignment of right, title and interest do not apply to Inventions for which no\nequipment, supplies, facility or trade secret information of the Company was used and which was developed entirely on Employee’s own time,\nunless (i) the Inventions relate either to the business of the Company, or to the Company’s actual or demonstrably anticipated research or\ndevelopment, or (ii) the Inventions result from any work directly or indirectly performed by the Employee for the Company.\n6\n8. Non-Impairment of Common Law. Nothing in this Agreement shall relieve Employee of any duties or obligations Employee has to the\nCompany under statutory or common law, which include but are not limited to: fiduciary duties, the duty of loyalty, and the duty not to tortiously\ninterfere with business relationships.\n9. Reasonable and Necessary; Severability; Enforceability; Non-Waiver. The terms and provisions of this Agreement are severable and\nif any term or provision is held to be unenforceable, it shall be enforced to the maximum extent allowable under the law and reformed or severed\nto the minimum extent necessary to render it or the Agreement enforceable. Any such alteration shall not affect the validity and enforceability of\nany other term or provision. Employee acknowledges that the obligations contained in this Agreement are not indivisible to any extent but are\nfully divisible and reformable or severable as legally necessary whether through alteration of a word, clause or sentence. The Company’s failure\nto act upon any breach of this Agreement or waiver of any such breach shall not constitute a waiver of any preceding or succeeding breach, or of\nany other right.\n10. Waiver of Jury Trial. Any action, lawsuit, demand, claim or counterclaim over this Agreement or any of its terms shall be resolved by\na judge alone, and both parties hereby expressly waive and forever disclaim the right to a trial before a civil jury.\n11. Notification. If, within the one (1) year after the termination of Employee’s employment, the Employee provides services as an\nemployee, independent contractor or consultant, owner or in any other capacity, whether or not for compensation, to any Person that offers\nproducts or services competitive with those provided by the Company, then Employee shall promptly provide the Company with the following\ninformation about such Person: the name, address and telephone number of the location to which Employee is assigned, and his or her job title.\nEmployee shall promptly provide any such Person with a copy of this Agreement, and employee consents to the Company’s right, at any time, to\nnotify such Person of this Agreement, as well as the details of any alleged violations thereof.\n12. Non-Disparagement. During and after employment with the Company, Employee shall not divulge, disclose or communicate to others,\nin any manner whatsoever, information or statements that disparage or are intended to disparage the Company or its business reputation.\n13. Remedies for Breach. Employee agrees that any breach of this Agreement by Employee will cause the Company to suffer immediate\nand irreparable injury, for which there is no adequate remedy at law. In the event of a breach or threatened breach of any of the terms of this\nAgreement, Employee agrees the Company shall be entitled to seek and obtain enforcement of this Agreement by means of a decree of specific\nperformance, a temporary restraining order, a preliminary or permanent injunction, and any other remedies at law or equity which may be\navailable, including the right to receive monetary damages. Employee shall reimburse the Company for all reasonable attorneys’ fees and costs\nincurred by the Company in enforcing this Agreement.\n14. Other Agreements. In the event Employee executed other written agreements relating to this subject matter with the Company, and/or\nin the event Employee enters into other\n7\nwritten agreements that contain provisions similar to the provisions contained herein, all such provisions shall be interpreted to provide the\nCompany with cumulative rights and remedies and the benefits and protections provided to the Company under each such agreement shall be\ngiven full force and effect. No amendment, waiver or revocation of this Agreement shall be effective unless set forth in writing expressly stating\nthe amendment, waiver or revocation and signed by an authorized officer of the Company.\n15. Successors and Assigns. Employee expressly agrees that this Agreement, including the rights and obligations hereunder, may be\ntransferred and/or assigned by the Company without the further consent of Employee, and that this Agreement is for the benefit of and may be\nenforced by the Company, its present and future successors, assigns, subsidiaries, affiliates, and purchasers, but is not assignable by Employee.\n16. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without\napplying its conflicts of laws principles. The exclusive venue for any litigation between Employee and Company based upon any fact, matter or\nclaim arising out of or relating to this Agreement shall be the state or federal courts located in Chicago, Illinois, and Employee hereby consents\nto any such court’s exercise of personal jurisdiction over him/her for such purpose.\n17. Section Headings. The headings of sections contained in this Agreement are inserted only as a matter of convenience and for reference\nand in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.\nEmployee, intending to be legally bound, hereby acknowledges that he or she: has read this Agreement in its entirety and understands all of its\nterms and conditions; is entering into this Agreement voluntarily, without coercion from any source; and agrees to abide by all of the terms and\nconditions of this Agreement. Employee further represents that any questions regarding this Agreement have been answered by the Company to\nthe satisfaction of the Employee.\nUS FOODS, INC.\nEMPLOYEE\nBy:\n/s/ Juliette Pryor\n/s/ Pietro Satriano\nOfficer Signature\nEmployee Signature\nPrinted Name: Juliette Pryor\nPrinted Name: Pietro Satriano\nTitle:\nExecutive Vice President, General Counsel and\nChief Compliance Officer\nTitle:\nPresident and CEO\nDate:\n7/21/2015\nDate:\n7/21/2015\n8	EX-10.58 4 d13265dex1058.htm EX-10.58\nExhibit 10.58\nNon-Solicitation and Non-Disclosure Agreement\nUS Foods, Inc. (the “Company” as defined below) and Employee, for good and valuable consideration, the receipt and sufficiency of which\nhereby are acknowledged, knowingly and voluntarily agree as follows:\n1. Representations and Acknowledgments.\n(a) Consideration. In consideration for Employee’s agreement to enter into this Non-Solicitation and Non-Disclosure Agreement\n(the “Agreement”) and to be bound by its terms, Employee has received: (i) employment or continued employment; (ii) access to Company\nrelationships and Confidential Information described herein; (iii) the ability to participate in the Company’s Points of Focus program, a Company\nstock incentive plan, and/or other similar Company-sponsored programs or plans; and/or (iv) other good and valuable consideration.\n(b) Confidential Information and Goodwill. The Company agrees that upon the commencement of Employee’s employment (if a\nnew Employee) or continuation of employment coinciding with the Employee’s execution of this Agreement (if a current Employee), the\nCompany will make available, give Employee access to, allow Employee to become familiar with, and allow Employee to acquire knowledge of\nthe Company, its Customers, employees, operations, pricing methods, delivery schedules, sources of supply, vendor information, supplier\narrangements, shipping and routing procedures and schedules, order routing and/or freight management software, specialized routine and/or\nfreight management strategy and procedures, financial information, and other Confidential Information of the Company and its Customers that\nwill assist and enhance Employee’s ability to perform Employee’s duties with the Company. Employee recognizes that Employee, on behalf of\nthe Company, will develop close relationships with, gain special knowledge of, and promote and develop the loyalty of said customers and\nvendors. The Company’s Confidential Information, the goodwill of its customers and vendors, and its relationship with its employees have been\nand will continue to be developed through the Company’s investment of substantial time, effort and money. Employee further recognizes that\nEmployee is in a position to unfairly convert the Company’s business, customer accounts, vendor relationships and goodwill of customers,\nvendors and employees for use by Employee and other Persons in competition with the Company, and that this would cause the Company to\nsuffer immediate and irreparable injury.\n(c) No Other Agreement or Understanding. Employee represents and warrants that Employee is not a party to any agreement or\nunderstanding which would impair Employee’s ability to enter into this Agreement or otherwise preclude or restrict Employee’s employment\nwith the Company, and that Employee’s execution of this Agreement and employment with the Company will not violate any other agreement or\nunderstanding to which Employee is bound.\n(d) Survival. If, after executing this Agreement, Employee: (i) is promoted to, assigned to or otherwise assumes one or more\npositions or functions other than or in addition to Employee’s position or functions at the time Employee signed this Agreement, regardless of\ntitle, or (ii) is transferred or assigned to or otherwise works for any affiliate, subsidiary or other\n1\ndivision or business unit of the Company, the terms of this Agreement shall continue to apply with full force and effect. Employee acknowledges\nand understands that unless and until a subsequent written Agreement is signed by all parties to this Agreement that expressly supersedes this\nAgreement, this Agreement will continue in full force and effect.\n(e) PRESERVATION OF AT-WILL EMPLOYMENT RELATIONSHIP. EMPLOYEE AGREES THAT NO PROVISION IN\nTHIS AGREEMENT SHALL BE CONSTRUED TO CREATE AN EXPRESS OR IMPLIED EMPLOYMENT CONTRACT OR A PROMISE\nOF EMPLOYMENT FOR ANY SPECIFIC PERIOD OF TIME. EMPLOYEE FURTHER ACKNOWLEDGES AND AGREES THAT\nEMPLOYEE’S EMPLOYMENT WITH THE COMPANY IS “AT WILL” (UNLESS EMPLOYEE ENTERED INTO A WRITTEN\nEMPLOYMENT CONTRACT EXPRESSLY PROVIDING THAT HIS/HER EMPLOYMENT IS NOT AT WILL AND SIGNED BY AN\nOFFICER OF US FOODS, INC. WHO IS AUTHORIZED TO DO SO) AND CAN BE TERMINATED AT ANY TIME BY THE COMPANY\nOR EMPLOYEE, WITH OR WITHOUT REASON, WITH OR WITHOUT NOTICE, AND WITH OR WITHOUT CAUSE.\n(f) Termination of Employment. Employee understands and agrees that the obligations and restrictions imposed under this\nAgreement shall apply after the termination of employment, regardless of whether such termination is voluntary or involuntary, or is with or\nwithout cause or notice.\n2. Definitions. For the purposes of this Agreement, the following terms shall have the following meanings:\n(a) “Associate” means an employee of the Company.\n(b) “Company” means US Foods, Inc., its subsidiaries, its parent company USF Holding Corp., any entity owned or controlled by\nUSF Holding Corp. or US Foods, Inc. as well as any other businesses that US Foods, Inc., may acquire or establish after the execution of this\nAgreement and any successors and assigns.\n(c) “Business of the Company” is the food and foodservice distribution business, including the acquisition, procurement, production,\nsale and distribution of food and related products, equipment, goods and services to restaurants, schools, hospitals, and other institutions or\nestablishments that serve food.\n(d) “Person(s)” mean all individuals, partnerships, corporations, limited liability companies, firms, businesses, and other entities,\nother than the Company.\n(e) “Confidential Information” means any information (in whatever form and whether or not recorded in any media) relating to the\nBusiness of the Company (whether constituting a trade secret or not) and including, but not limited to, customer and vendor lists or other\ndocuments containing the names and/or job titles of the principal contact(s) of each customer and/or vendor; customer and vendor documents,\nrouting arrangements, files, purchases and account history; vendor information; route lists of sales employees; pricing, margins, sales allowances,\ndiscounts, incentives and pricing strategies and policies; invoices; procurement strategies and pricing; marketing and product information; order\nguides or histories; sales data\nfor any employee, product, customer or territory; sales and delivery schedules; credit terms, policies and information, including invoicing and\npayment records; information on customer or vendor preferences; promotional programs; financial information of the Company or its customers\nor vendors; the terms, conditions and structures of the Company’s contracts and agreements with customers, vendors and suppliers; information\npertaining to the Company’s methods of operation, processes, strategies and techniques, including strategies for identifying and satisfying the\nneeds of specific customers and types of customers; and lists containing personal and personnel information about other employees of the\nCompany, including but not limited to their home and business telephone, mobile and pager numbers, addresses, compensation terms, customers\nserved by and vendors assigned to such employees, and job performance; which (i) is or has been disclosed to Employee (or of which Employee\nbecame aware) as a consequence of or through his or her relationship to the Company, (ii) has value to the Company or would be of value (actual\nor potential) to a competitor of the Company, and (iii) is not generally known, or readily available by lawful means, to the public (including\ncompiled information that is not publicly available in such a consolidated form). Confidential Information shall not include any information that\nhas been voluntarily disclosed to the public by the Company (except where such public disclosure has been made by Employee without\nauthorization) or that has been independently developed and disclosed by others, or that otherwise has entered the public domain through lawful\nmeans.\n(f) “Pre-Termination Period” means the eighteen (18) month period immediately prior to the termination of Employee’s\nemployment with the Company.\n(g) “Inventions.” For purposes of this Agreement, “Inventions” shall mean all software programs, source or object code,\nimprovements, formulas, developments, ideas, processes, techniques, know-how, data, and discoveries, whether patentable or unpatentable,\neither conceived or reduced to practice by Employee while in the Company’s or an Affiliated Company’s employ, either solely or jointly with\nothers, and whether or not during regular working hours, or conceived or reduced to practice by Employee within one year of the termination of\nEmployee’s employment with the Company using Company Confidential Information.\n(h) “Company Inventions.” For purposes of this Agreement, “Company Inventions” shall mean any Invention that either:\n(1) relates, at least in part, at the time of conception or reduction to practice of the Invention, to:\nI the Company’s Business, projects or products, or to the manufacture or utilization thereof; or\nii.  the Company’s and/or an Affiliated Company’s actual or demonstrably anticipated research or development; or\n(2) results, at least in part, from any work performed directly or indirectly by Employee for the Company; or\n(3) results, at least in part, from the use of the Company’s or an Affiliated Company’s equipment, supplies, facilities or trade\nsecret information.\n3. Non-Disclosure of Confidential Information.\n(a) At no time, either during or after the termination of employment, shall Employee directly or indirectly obtain, disclose or use for\nEmployee or any Person, or aid others in obtaining, disclosing or using any Confidential Information of the Company, other than as may be\nrequired in the performance of duties for and as authorized by the Company. All Confidential Information is and shall remain the sole property of\nthe Company. The Company understands that under the current laws of certain states, restrictions on the use or disclosure of confidential\ninformation must be of a finite duration. Accordingly, the parties agree that should the law of such a state be applied to this Agreement, the\nrestrictions on the use or disclosure of Confidential Information that is not a trade secret (the restriction on the use or disclosure of which shall be\nunlimited by time) shall apply only for a period of two (2) years from the termination of Employee’ s employment with the Company, which\nperiod Employee acknowledges to be reasonable under the circumstances at the time of execution of the Agreement.\n(b) Notwithstanding anything to the contrary, this Agreement shall not prevent Employee from revealing evidence of criminal\nwrongdoing to law enforcement or prohibit Employee from divulging Confidential Information by order of court or agency of competent\njurisdiction. However, Employee shall promptly inform the Company of any such situations and shall take such reasonable steps to prevent\ndisclosure of Confidential Information until the Company has been informed of such requested disclosure and the Company has had an\nopportunity to respond to the court or agency.\n4. Return of Company Property and Confidential Information. All records, files, customer order guides, pricelists, photo/videographic\nmaterials, computers and computer related equipment (e.g. hardware, software, disks, electronic storage devices, etc.), cell phones, smart phones,\nBlackberries, personal data assistants, keys, equipment, access cards, passwords, access codes, badges, credit cards or other tangible material,\nand all other documents, including but not limited to Confidential Information, Employee receives, acquires, produces or has access to as a result\nof his or her employment with the Company (regardless of the medium in which any information is stored) (collectively “Property”), are the\nexclusive property of the Company. Upon the termination of Employee’s employment, Employee shall return to the Company all Property of the\nCompany and all copies thereof in Employee’s possession or control.\n5. Non-Solicitation of Restricted Customers.\n(a) For the one (1) year period following the termination of Employee’s employment with the Company, Employee shall not, directly\nor indirectly, (for Employee or any other Person, whether as an employee, owner, consultant, independent contractor, or in any other capacity) for\nthe purpose of providing products or services competitive with those conducted, authorized, offered or provided by the Company, solicit, market,\nservice, contact, sell to or attempt to sell to any Person(s):\n(1) to whom Employee sold products or services on behalf of the Company at any time during the Pre-Termination Period,\nincluding sales performed while Employee was in training or providing vacation or leave coverage for another Associate; or\n4\n(2) to whom the Company sold products or services and with whom Employee had contact on behalf of the Company in\nconnection with such sale at any time during the Pre-Termination Period; or\n(3) to whom the Company sold products or services at any time during the Pre-Termination Period and which sale was made\nthrough any Associate whom Employee directly or indirectly managed or supervised (at any level of management or supervision); or\n(4) with regard to whom, at any time during the Pre-Termination Period, Employee (or any Associate whom Employee directly\nor indirectly managed or supervised, at any level of management or supervision): (i) participated in the preparation of a written sales\nproposal or bid containing Confidential Information to such Person on behalf of the Company; (ii) participated in the setting of\nprices, margins, or credit terms for such Person(s) on behalf of the Company; or (iii) used or received or created or reviewed any\nConfidential Information relating to such Person(s) on behalf of the Company; or\n(5) who is, or functions as, a food broker or contract management company or group purchasing organization or otherwise\nrepresents one or more customers or negotiates on their behalf, and to whom or through whom Employee or any Associate whom\nEmployee directly or indirectly managed or supervised (at any level of management or supervision) sold products or services on\nbehalf of the Company at any time during the Pre-Termination Period.\n(b) A “Restricted Customer” is that and are those Person(s) identified in Section 5(a) and 5(b) herein.\n(c) Examples of indirect solicitation, marketing, servicing, contacting, selling to or attempting to sell to, include but are not limited to,\nproviding Confidential Information to a Person(s) regarding a Restricted Customer; advising or encouraging a Restricted Customer to reduce or cease doing business with the Company or to do business with a Person that provides products or services competitive with the Company; switching or swapping sales, solicitation, or service responsibility for a Restricted Customer with an employee of a Person that is competitive with the Company; participating in the supervision or management of any Person or employee of such Person, regardless of other intervening levels of management or supervision, with regard to a Restricted Customer; participating in the setting of prices, credit terms or margins for a Restricted Customer; participating in developing and executing marketing and sales strategies and decisions affecting a Restricted Customer; and receiving any personal benefit (present or future) in the event a Restricted Customer should do any business with a Person. 5\nCompany, Employee will not, directly or indirectly, on behalf Employee or for any other Person, entice, induce, encourage or solicit or attempt to\nentice, induce, encourage or solicit any individual then employed by the Company and with whom the Employee had work-related dealings as a\nco-employee of the Company to leave such employment with the Company (this provision is not intended to restrict communications addressed\nto the general public, such as advertising to fill open positions) nor will the Employee hire any such individual for any other Person during the\nsame one-year period following the Employee’s termination.\n7. Ownership of Inventions.\n(a) Employee shall disclose all Inventions promptly and fully to the Company.\n(b) Except as excluded in Section 7(e) below, Employee hereby assigns, and agrees to assign, to the Company all of Employee’s\nright, title and interest in and to all Company Inventions and agrees that all such Company Inventions shall be the Company’s sole and exclusive\nproperty to the maximum extent permitted by law.\n(c) Employee shall at the request of the Company (but without additional compensation from the Company): (i) execute any and all\npapers and perform all lawful acts that the Company deems necessary for the preparation, filing, prosecution, and maintenance of applications for\nUnited States patents or copyrights and foreign patents or copyrights on any Company Inventions, (ii) execute such instruments as are necessary\nto assign to the Company or to the Company’s nominee, all of Employee’s right, title and interest in any Company Inventions so as to establish or\nperfect in the Company or in the Company’s nominee, the entire right, title and interest in such Company Inventions, and (iii) execute any\ninstruments necessary or that the Company may deem desirable in connection with any continuation, renewal or reissue of any patents in any\nCompany Inventions, renewal of any copyright registrations for any Company Inventions, or in the conduct of any proceedings or litigation\nrelating to any Company Inventions. All expenses incurred by the Employee by reason of the performance of any of the obligations set forth in\nthis Section 7(e) shall be borne by the Company.\n(d) Concurrent with Employee’s execution of this Agreement, Employee attaches a list and brief description of all unpatented\ninventions and discoveries, if any, made or conceived by Employee prior to Employee’s employment with the Company and that are to be\nexcluded from this Agreement. If no such list is attached at the time of execution of this Agreement, it shall be conclusively presumed that\nEmployee has waived any right Employee may have to any such invention or discovery which relates to the Company’s Business.\n(e) Provisions (a) through (d) of this Section 7 regarding assignment of right, title and interest do not apply to Inventions for which no\nequipment, supplies, facility or trade secret information of the Company was used and which was developed entirely on Employee’s own time,\nunless (i) the Inventions relate either to the business of the Company, or to the Company’s actual or demonstrably anticipated research or\ndevelopment, or (ii) the Inventions result from any work directly or indirectly performed by the Employee for the Company.\n6\n8. Non-Impairment of Common Law. Nothing in this Agreement shall relieve Employee of any duties or obligations Employee has to the\nCompany under statutory or common law, which include but are not limited to: fiduciary duties, the duty of loyalty, and the duty not to tortiously\ninterfere with business relationships.\nif any term or provision is held to be unenforceable, it shall be enforced to the maximum extent allowable under the law and reformed or severed\nto the minimum extent necessary to render it or the Agreement enforceable. Any such alteration shall not affect the validity and enforceability of\nany other term or provision. Employee acknowledges that the obligations contained in this Agreement are not indivisible to any extent but are\nfully divisible and reformable or severable as legally necessary whether through alteration of a word, clause or sentence. The Company’s failure\nto act upon any breach of this Agreement or waiver of any such breach shall not constitute a waiver of any preceding or succeeding breach, or of\nany other right.\n10. Waiver of Jury Trial. Any action, lawsuit, demand, claim or counterclaim over this Agreement or any of its terms shall be resolved by\na judge alone, and both parties hereby expressly waive and forever disclaim the right to a trial before a civil jury.\n11. Notification. If, within the one (1) year after the termination of Employee’s employment, the Employee provides services as an\nemployee, independent contractor or consultant, owner or in any other capacity, whether or not for compensation, to any Person that offers\nproducts or services competitive with those provided by the Company, then Employee shall promptly provide the Company with the following\ninformation about such Person: the name, address and telephone number of the location to which Employee is assigned, and his or her job title.\nEmployee shall promptly provide any such Person with a copy of this Agreement, and employee consents to the Company’s right, at any time, to\nnotify such Person of this Agreement, as well as the details of any alleged violations thereof.\n12. Non-Disparagement. During and after employment with the Company, Employee shall not divulge, disclose or communicate to others,\nin any manner whatsoever, information or statements that disparage or are intended to disparage the Company or its business reputation.\n13. Remedies for Breach. Employee agrees that any breach of this Agreement by Employee will cause the Company to suffer immediate\nand irreparable injury, for which there is no adequate remedy at law. In the event of a breach or threatened breach of any of the terms of this\nAgreement, Employee agrees the Company shall be entitled to seek and obtain enforcement of this Agreement by means of a decree of specific\nperformance, a temporary restraining order, a preliminary or permanent injunction, and any other remedies at law or equity which may be\navailable, including the right to receive monetary damages. Employee shall reimburse the Company for all reasonable attorneys’ fees and costs\nincurred by the Company in enforcing this Agreement.\n14. Other Agreements. In the event Employee executed other written agreements relating to this subject matter with the Company, and/or\nin the event Employee enters into other\nwritten agreements that contain provisions similar to the provisions contained herein, all such provisions shall be interpreted to provide the\nCompany with cumulative rights and remedies and the benefits and protections provided to the Company under each such agreement shall be\ngiven full force and effect. No amendment, waiver or revocation of this Agreement shall be effective unless set forth in writing expressly stating\nthe amendment, waiver or revocation and signed by an authorized officer of the Company.\n15. Successors and Assigns. Employee expressly agrees that this Agreement, including the rights and obligations hereunder, may be\ntransferred and/or assigned by the Company without the further consent of Employee, and that this Agreement is for the benefit of and may be\nenforced by the Company, its present and future successors, assigns, subsidiaries, affiliates, and purchasers, but is not assignable by Employee.\n16. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without\napplying its conflicts of laws principles. The exclusive venue for any litigation between Employee and Company based upon any fact, matter or\nclaim arising out of or relating to this Agreement shall be the state or federal courts located in Chicago, Illinois, and Employee hereby consents\nto any such court’s exercise of personal jurisdiction over him/her for such purpose.\n17. Section Headings. The headings of sections contained in this Agreement are inserted only as a matter of convenience and for reference\nand in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.\nEmployee, intending to be legally bound, hereby acknowledges that he or she: has read this Agreement in its entirety and understands all of its\nterms and conditions; is entering into this Agreement voluntarily, without coercion from any source; and agrees to abide by all of the terms and\nconditions of this Agreement. Employee further represents that any questions regarding this Agreement have been answered by the Company to\nthe satisfaction of the Employee.\nUS FOODS, INC. EMPLOYEE\nBy: /s/ Juliette Pryor /s/ Pietro Satriano\nOfficer Signature Employee Signature\nPrinted Name: Juliette Pryor Printed Name: Pietro Satriano\nTitle: Executive Vice President, General Counsel and Title: President and CEO\nChief Compliance Officer\nDate: 7/21/2015 Date: 7/21/2015	EX-10.58 4 d13265dex1058.htm EX-10.58\nExhibit 10.58\nNon-Solicitation and Non-Disclosure Agreement\nUS Foods, Inc. (the "Company" as defined below) and Employee, for good and valuable consideration, the receipt and sufficiency of which\nhereby are acknowledged, knowingly and voluntarily agree as follows:\n1. Representations and Acknowledgments.\n(a) Consideration. In consideration for Employee's agreement to enter into this Non-Solicitation and Non-Disclosure Agreement\n(the "Agreement") and to be bound by its terms, Employee has received: (i) employment or continued employment; (ii) access to Company\nrelationships and Confidential Information described herein; (iii) the ability to participate in the Company's Points of Focus program, a Company\nstock incentive plan, and/or other similar Company-sponsored programs or plans; and/or (iv) other good and valuable consideration.\n(b) Confidential Information and Goodwill. The Company agrees that upon the commencement of Employee's employment (if a\nnew Employee) or continuation of employment coinciding with the Employee's execution of this Agreement (if a current Employee), the\nCompany will make available, give Employee access to, allow Employee to become familiar with, and allow Employee to acquire knowledge of\nthe Company, its Customers, employees, operations, pricing methods, delivery schedules, sources of supply, vendor information, supplier\narrangements, shipping and routing procedures and schedules, order routing and/or freight management software, specialized routine and/or\nfreight management strategy and procedures, financial information, and other Confidential Information of the Company and its Customers that\nwill assist and enhance Employee's ability to perform Employee's duties with the Company. Employee recognizes that Employee, on behalf\nof\nthe Company, will develop close relationships with, gain special knowledge of, and promote and develop the loyalty of said customers and\nvendors. The Company's Confidential Information, the goodwill of its customers and vendors, and its relationship with its employees have been\nand will continue to be developed through the Company's investment of substantial time, effort and money. Employee further recognizes that\nEmployee is in a position to unfairly convert the Company's business, customer accounts, vendor relationships and goodwill of customers,\nvendors and employees for use by Employee and other Persons in competition with the Company, and that this would cause the Company\nto\nsuffer immediate and irreparable injury.\n(c) No Other Agreement or Understanding. Employee represents and warrants that Employee is not a party to any agreement or\nunderstanding which would impair Employee's ability to enter into this Agreement or otherwise preclude or restrict Employee's employment\nwith the Company, and that Employee's execution of this Agreement and employment with the Company will not violate any other agreement\nor\nunderstanding to which Employee is bound.\n(d) Survival. If, after executing this Agreement, Employee: (i) is promoted to, assigned to or otherwise assumes one or more\npositions or functions other than or in addition to Employee's position or functions at the time Employee signed this Agreement, regardless of\ntitle, or (ii) is transferred or assigned to or otherwise works for any affiliate, subsidiary or other\n1\ndivision or business unit of the Company, the terms of this Agreement shall continue to apply with full force and effect. Employee acknowledges\nand understands that unless and until a subsequent written Agreement is signed by all parties to this Agreement that expressly supersedes this\nAgreement, this Agreement will continue in ful force and effect.\n(e) PRESERVATION OF AT-WILL EMPLOYMENT RELATIONSHIP. EMPLOYEE AGREES THAT NO PROVISION IN\nTHIS AGREEMENT SHALL BE CONSTRUED TO CREATE AN EXPRESS OR IMPLIED EMPLOYMENT CONTRACT OR A PROMISE\nOF EMPLOYMENT FOR ANY SPECIFIC PERIOD OF TIME. EMPLOYEE FURTHER ACKNOWLEDGES AND AGREES THAT\nEMPLOYEE'S EMPLOYMENT WITH THE COMPANY IS "AT WILL" (UNLESS EMPLOYEE ENTERED INTO A WRITTEN\nEMPLOYMENT CONTRACT EXPRESSLY PROVIDING THAT HIS/HER EMPLOYMENT IS NOT AT WILL AND SIGNED BY AN\nOFFICER OF US FOODS, INC. WHO IS AUTHORIZED TO DO SO) AND CAN BE TERMINATED AT ANY TIME BY THE COMPANY\nOR EMPLOYEE, WITH OR WITHOUT REASON, WITH OR WITHOUT NOTICE, AND WITH OR WITHOUT CAUSE.\n(f) Termination of Employment. Employee understands and agrees that the obligations and restrictions imposed under this\nAgreement shall apply after the termination of employment, regardless of whether such termination is voluntary or involuntary, or is with or\nwithout cause or notice.\n2.\nDefinitions. For the purposes of this Agreement, the following terms shall have the following meanings:\n(a) "Associate" means an employee of the Company.\n(b) "Company" means US Foods, Inc., its subsidiaries, its parent company USF Holding Corp., any entity owned or controlled by\nUSF Holding Corp. or US Foods, Inc. as well as any other businesses that US Foods, Inc., may acquire or establish after the execution of this\nAgreement and any successors and assigns.\n(c) "Business of the Company" is the food and foodservice distribution business, including the acquisition, procurement, production,\nsale and distribution of food and related products, equipment, goods and services to restaurants, schools, hospitals, and other institutions or\nestablishments that serve food.\n(d) "Person(s)" mean all individuals, partnerships, corporations, limited liability companies, firms, businesses, and other entities,\nother than the Company.\n(e) "Confidential Information" means any information (in whatever form and whether or not recorded in any media) relating to the\nBusiness of the Company (whether constituting a trade secret or not) and including, but not limited to, customer and vendor lists or other\ndocuments containing the names and/or job titles of the principal contact(s) of each customer and/or vendor; customer and vendor documents,\nrouting arrangements, files, purchases and account history; vendor information; route lists of sales employees; pricing, margins, sales allowances\ndiscounts, incentives and pricing strategies and policies; invoices; procurement strategies and pricing; marketing and product information; order\nguides or histories; sales data\n2\nfor any employee, product, customer or territory; sales and delivery schedules; credit terms, policies and information, including invoicing and\npayment records; information on customer or vendor preferences; promotional programs; financial information of the Company or its customers\nor vendors; the terms, conditions and structures of the Company's contracts and agreements with customers, vendors and suppliers; information\npertaining to the Company's methods of operation, processes, strategies and techniques, including strategies for identifying and satisfying the\nneeds of specific customers and types of customers; and lists containing personal and personnel information about other employees of the\nCompany, including but not limited to their home and business telephone, mobile and pager numbers, addresses, compensation terms, customers\nserved by and vendors assigned to such employees, and job performance; which (i) is or has been disclosed to Employee (or of which Employee\nbecame aware) as a consequence of or through his or her relationship to the Company, (ii) has value to the Company or would be of value (actual\nor potential) to a competitor of the Company, and (iii) is not generally known, or readily available by lawful means, to the public (including\ncompiled information that is not publicly available in such a consolidated form). Confidential Information shall not include any information that\nhas been voluntarily disclosed to the public by the Company (except where such public disclosure has been made by Employee without\nauthorization) or that has been independently developed and disclosed by others, or that otherwise has entered the public domain through lawful\nmeans.\n(f) "Pre-Termination Period" means the eighteen (18) month period immediately prior to the termination of Employee's\nemployment with the Company.\n(g) "Inventions." For purposes of this Agreement, "Inventions" shall mean all software programs, source or object code,\nimprovements, formulas, developments, ideas, processes, techniques, know-how, data, and discoveries, whether patentable or unpatentable,\neither conceived or reduced to practice by Employee while in the Company's or an Affiliated Company's employ, either solely or jointly with\nothers, and whether or not during regular working hours, or conceived or reduced to practice by Employee within one year of the termination of\nEmployee's employment with the Company using Company Confidential Information.\n(h) "Company Inventions." For purposes of this Agreement, "Company Inventions" shall mean any Invention that either:\n(1) relates, at least in part, at the time of conception or reduction to practice of the Invention,\nto:\ni.\nthe Company's Business, projects or products, or to the manufacture or utilization thereof; or\nii.\nthe Company's and/or an Affiliated Company's actual or demonstrably anticipated research or development; or\n(2) results, at least in part, from any work performed directly or indirectly by Employee for the Company; or\n(3) results, at least in part, from the use of the Company's or an Affiliated Company's equipment, supplies, facilities or trade\nsecret information.\n3\n3. Non-Disclosure of Confidential Information.\n(a) At no time, either during or after the termination of employment, shall Employee directly or indirectly obtain, disclose or use for\nEmployee or any Person, or aid others in obtaining, disclosing or using any Confidential Information of the Company, other than as may be\nrequired in the performance of duties for and as authorized by the Company. All Confidential Information is and shall remain the sole property\nof\nthe Company. The Company understands that under the current laws of certain states, restrictions on the use or disclosure of confidential\ninformation must be of a finite duration. Accordingly, the parties agree that should the law of such a state be applied to this Agreement, the\nrestrictions on the use or disclosure of Confidential Information that is not a trade secret (the restriction on the use or disclosure of which shall\nbe\nunlimited by time) shall apply only for a period of two (2) years from the termination of Employee' S employment with the Company, which\nperiod Employee acknowledges to be reasonable under the circumstances at the time of execution of the Agreement.\n(b) Notwithstanding anything to the contrary, this Agreement shall not prevent Employee from revealing evidence of criminal\nwrongdoing to law enforcement or prohibit Employee from divulging Confidential Information by order of court or agency of competent\njurisdiction. However, Employee shall promptly inform the Company of any such situations and shall take such reasonable steps to prevent\ndisclosure of Confidential Information until the Company has been informed of such requested disclosure and the Company has had an\nopportunity to respond to the court or agency.\n4.\nReturn of Company Property and Confidential Information. All records, files, customer order guides, pricelists, photo/videographic\nmaterials, computers and computer related equipment (e.g. hardware, software, disks, electronic storage devices, etc.), cell phones, smart phones,\nBlackberries, personal data assistants, keys, equipment, access cards, passwords, access codes, badges, credit cards or other tangible material,\nand all other documents, including but not limited to Confidential Information, Employee receives, acquires, produces or has access to as a result\nof his or her employment with the Company (regardless of the medium in which any information is stored) (collectively "Property"), are the\nexclusive property of the Company. Upon the termination of Employee's employment, Employee shall return to the Company all Property of the\nCompany and all copies thereof in Employee's possession or control.\n5. Non-Solicitation of Restricted Customers.\n(a) For the one (1) year period following the termination of Employee's employment with the Company, Employee shall not, directly\nor indirectly, (for Employee or any other Person, whether as an employee, owner, consultant, independent contractor, or in any other capacity) for\nthe purpose of providing products or services competitive with those conducted, authorized, offered or provided by the Company, solicit, market,\nservice, contact, sell to or attempt to sell to any Person(s):\n(1) to whom Employee sold products or services on behalf of the Company at any time during the Pre-Termination Period,\nincluding sales performed while Employee was in training or providing vacation or leave coverage for another Associate; or\n4\n(2) to whom the Company sold products or services and with whom Employee had contact on behalf of the Company\nin\nconnection with such sale at any time during the Pre-Termination Period; or\n(3) to whom the Company sold products or services at any time during the Pre-Termination Period and which sale was made\nthrough any Associate whom Employee directly or indirectly managed or supervised (at any level of management or supervision);\nor\n(4) with regard to whom, at any time during the Pre-Termination Period, Employee (or any Associate whom Employee directly\nor indirectly managed or supervised, at any level of management or supervision): (i) participated in the preparation of a written sales\nproposal or bid containing Confidential Information to such Person on behalf of the Company; (ii) participated in the setting of\nprices, margins, or credit terms for such Person(s) on behalf of the Company; or (iii) used or received or created or reviewed any\nConfidential Information relating to such Person(s) on behalf of the Company; or\n(5) who is, or functions as, a food broker or contract management company or group purchasing organization or otherwise\nrepresents one or more customers or negotiates on their behalf, and to whom or through whom Employee or any Associate whom\nEmployee directly or indirectly managed or supervised (at any level of management or supervision) sold products or services on\nbehalf of the Company at any time during the Pre-Termination Period.\n(b) A "Restricted Customer" is that and are those Person(s) identified in Section 5(a) and 5(b) herein.\n(c) Examples of indirect solicitation, marketing, servicing, contacting, selling to or attempting to sell to, include but are not limited to,\nproviding Confidential Information to a Person(s) regarding a Restricted Customer; advising or encouraging a Restricted Customer to reduce or\ncease doing business with the Company or to do business with a Person that provides products or services competitive with the Company;\nswitching or swapping sales, solicitation, or service responsibility for a Restricted Customer with an employee of a Person that is competitive\nwith the Company; participating in the supervision or management of any Person or employee of such Person, regardless of other intervening\nlevels of management or supervision, with regard to a Restricted Customer; participating in the setting of prices, credit terms or margins for a\nRestricted Customer; participating in developing and executing marketing and sales strategies and decisions affecting a Restricted Customer; and\nreceiving any personal benefit (present or future) in the event a Restricted Customer should do any business with a Person.\n5\n6. Non-Solicitation of Company Employees. For a period of one (1) year following Employee's termination of employment with the\nCompany, Employee will not, directly or indirectly, on behalf Employee or for any other Person, entice, induce, encourage or solicit or attempt to\nentice, induce, encourage or solicit any individual then employed by the Company and with whom the Employee had work-related dealings as\na\nco-employee of the Company to leave such employment with the Company (this provision is not intended to restrict communications addressed\nto the general public, such as advertising to fill open positions) nor will the Employee hire any such individual for any other Person during the\nsame one-year period following the Employee's termination.\n7. Ownership of Inventions.\n(a) Employee shall disclose all Inventions promptly and fully to the Company.\n(b) Except as excluded in Section 7(e) below, Employee hereby assigns, and agrees to assign, to the Company all of Employee's\nright, title and interest in and to all Company Inventions and agrees that all such Company Inventions shall be the Company's sole and exclusive\nproperty to the maximum extent permitted by law.\n(c) Employee shall at the request of the Company (but without additional compensation from the Company): (i) execute any and all\npapers and perform all lawful acts that the Company deems necessary for the preparation, filing, prosecution, and maintenance of applications for\nUnited States patents or copyrights and foreign patents or copyrights on any Company Inventions, (ii) execute such instruments as are necessary\nto assign to the Company or to the Company's nominee, all of Employee's right, title and interest in any Company Inventions so as to establish or\nperfect in the Company or in the Company's nominee, the entire right, title and interest in such Company Inventions, and (iii) execute any\ninstruments necessary or that the Company may deem desirable in connection with any continuation, renewal or reissue of any patents in any\nCompany Inventions, renewal of any copyright registrations for any Company Inventions, or in the conduct of any proceedings or litigation\nrelating to any Company Inventions. All expenses incurred by the Employee by reason of the performance of any of the obligations set forth in\nthis Section 7(e) shall be borne by the Company.\n(d) Concurrent with Employee's execution of this Agreement, Employee attaches a list and brief description of all unpatented\ninventions and discoveries, if any, made or conceived by Employee prior to Employee's employment with the Company and that are to be\nexcluded from this Agreement. If no such list is attached at the time of execution of this Agreement, it shall be conclusively presumed that\nEmployee has waived any right Employee may have to any such invention or discovery which relates to the Company's Business.\n(e) Provisions (a) through (d) of this Section 7 regarding assignment of right, title and interest do not apply to Inventions for which no\nequipment, supplies, facility or trade secret information of the Company was used and which was developed entirely on Employee's own time,\nunless (i) the Inventions relate either to the business of the Company, or to the Company's actual or demonstrably anticipated research or\ndevelopment, or (ii) the Inventions result from any work directly or indirectly performed by the Employee for the Company.\n6\n8. Non-Impairment of Common Law. Nothing in this Agreement shall relieve Employee of any duties or obligations Employee has to the\nCompany under statutory or common law, which include but are not limited to: fiduciary duties, the duty of loyalty, and the duty not to tortiously\ninterfere with business relationships.\n9. Reasonable and Necessary; Severability; Enforceability; Non-Waiver. The terms and provisions of this Agreement are severable and\nif any term or provision is held to be unenforceable, it shall be enforced to the maximum extent allowable under the law and reformed or severed\nto the minimum extent necessary to render it or the Agreement enforceable. Any such alteration shall not affect the validity and enforceability of\nany other term or provision. Employee acknowledges that the obligations contained in this Agreement are not indivisible to any extent but are\nfully divisible and reformable or severable as legally necessary whether through alteration of a word, clause or sentence. The Company's failure\nto act upon any breach of this Agreement or waiver of any such breach shall not constitute a waiver of any preceding or succeeding breach, or\nof\nany other right.\n10. Waiver of Jury Trial. Any action, lawsuit, demand, claim or counterclaim over this Agreement or any of its terms shall be resolved by\na judge alone, and both parties hereby expressly waive and forever disclaim the right to a trial before a civil jury.\n11. Notification. If, within the one (1) year after the termination of Employee's employment, the Employee provides services as an\nemployee, independent contractor or consultant, owner or in any other capacity, whether or not for compensation, to any Person that offers\nproducts or services competitive with those provided by the Company, then Employee shall promptly provide the Company with the following\ninformation about such Person: the name, address and telephone number of the location to which Employee is assigned, and his or her job title.\nEmployee shall promptly provide any such Person with a copy of this Agreement, and employee consents to the Company's right, at any time, to\nnotify such Person of this Agreement, as well as the details of any alleged violations thereof.\n12. Non-Disparagement. During and after employment with the Company, Employee shall not divulge, disclose or communicate to others,\nin any manner whatsoever, information or statements that disparage or are intended to disparage the Company or its business reputation.\n13. Remedies for Breach. Employee agrees that any breach of this Agreement by Employee will cause the Company to suffer immediate\nand irreparable injury, for which there is no adequate remedy at law. In the event of a breach or threatened breach of any of the terms of this\nAgreement, Employee agrees the Company shall be entitled to seek and obtain enforcement of this Agreement by means of a decree of specific\nperformance, a temporary restraining order, a preliminary or permanent injunction, and any other remedies at law or equity which may be\navailable, including the right to receive monetary damages. Employee shall reimburse the Company for all reasonable attorneys' fees and costs\nincurred by the Company in enforcing this Agreement.\n14. Other Agreements. In the event Employee executed other written agreements relating to this subject matter with the Company, and/or\nin the event Employee enters into other\n7\nwritten agreements that contain provisions similar to the provisions contained herein, all such provisions shall be interpreted to provide the\nCompany with cumulative rights and remedies and the benefits and protections provided to the Company under each such agreement shall be\ngiven full force and effect. No amendment, waiver or revocation of this Agreement shall be effective unless set forth in writing expressly stating\nthe amendment, waiver or revocation and signed by an authorized officer of the Company.\n15. Successors and Assigns. Employee expressly agrees that this Agreement, including the rights and obligations hereunder, may be\ntransferred and/or assigned by the Company without the further consent of Employee, and that this Agreement is for the benefit of and may be\nenforced by the Company, its present and future successors, assigns, subsidiaries, affiliates, and purchasers, but is not assignable by Employee.\n16. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without\napplying its conflicts of laws principles. The exclusive venue for any litigation between Employee and Company based upon any fact, matter or\nclaim arising out of or relating to this Agreement shall be the state or federal courts located in Chicago, Illinois, and Employee hereby consents\nto any such court's exercise of personal jurisdiction over him/her for such purpose.\n17.\nSection Headings. The headings of sections contained in this Agreement are inserted only as a matter of convenience and for reference\nand in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.\nEmployee, intending to be legally bound, hereby acknowledges that he or she: has read this Agreement in its entirety and understands all of its\nterms and conditions; is entering into this Agreement voluntarily, without coercion from any source; and agrees to abide by all of the terms and\nconditions of this Agreement. Employee further represents that any questions regarding this Agreement have been answered by the Company to\nthe satisfaction of the Employee.\nUS FOODS, INC.\nEMPLOYEE\nBy:\n/s/ Juliette Pryor\n/s/ Pietro Satriano\nOfficer Signature\nEmployee Signature\nPrinted Name: Juliette Pryor\nPrinted Name: Pietro Satriano\nTitle:\nExecutive Vice President, General Counsel and\nTitle:\nPresident and CEO\nChief Compliance Officer\nDate:\n7/21/2015\nDate:\n7/21/2015\n8	EX-10.58 4 d13265dex1058.htm EX-10.58\nExhibit 10.58\nNon-Solicitation and Non-Disclosure Agreement\nUS Foods, Inc. (the “Company” as defined below) and Employee, for good and valuable consideration, the receipt and sufficiency of which\nhereby are acknowledged, knowingly and voluntarily agree as follows:\n1. Representations and Acknowledgments.\n(a) Consideration. In consideration for Employee’s agreement to enter into this Non-Solicitation and Non-Disclosure Agreement\n(the “Agreement”) and to be bound by its terms, Employee has received: (i) employment or continued employment; (ii) access to Company\nrelationships and Confidential Information described herein; (iii) the ability to participate in the Company’s Points of Focus program, a Company\nstock incentive plan, and/or other similar Company-sponsored programs or plans; and/or (iv) other good and valuable consideration.\n(b) Confidential Information and Goodwill. The Company agrees that upon the commencement of Employee’s employment (if a\nnew Employee) or continuation of employment coinciding with the Employee’s execution of this Agreement (if a current Employee), the\nCompany will make available, give Employee access to, allow Employee to become familiar with, and allow Employee to acquire knowledge of\nthe Company, its Customers, employees, operations, pricing methods, delivery schedules, sources of supply, vendor information, supplier\narrangements, shipping and routing procedures and schedules, order routing and/or freight management software, specialized routine and/or\nfreight management strategy and procedures, financial information, and other Confidential Information of the Company and its Customers that\nwill assist and enhance Employee’s ability to perform Employee’s duties with the Company. Employee recognizes that Employee, on behalf of\nthe Company, will develop close relationships with, gain special knowledge of, and promote and develop the loyalty of said customers and\nvendors. The Company’s Confidential Information, the goodwill of its customers and vendors, and its relationship with its employees have been\nand will continue to be developed through the Company’s investment of substantial time, effort and money. Employee further recognizes that\nEmployee is in a position to unfairly convert the Company’s business, customer accounts, vendor relationships and goodwill of customers,\nvendors and employees for use by Employee and other Persons in competition with the Company, and that this would cause the Company to\nsuffer immediate and irreparable injury.\n(c) No Other Agreement or Understanding. Employee represents and warrants that Employee is not a party to any agreement or\nunderstanding which would impair Employee’s ability to enter into this Agreement or otherwise preclude or restrict Employee’s employment\nwith the Company, and that Employee’s execution of this Agreement and employment with the Company will not violate any other agreement or\nunderstanding to which Employee is bound.\n(d) Survival. If, after executing this Agreement, Employee: (i) is promoted to, assigned to or otherwise assumes one or more\npositions or functions other than or in addition to Employee’s position or functions at the time Employee signed this Agreement, regardless of\ntitle, or (ii) is transferred or assigned to or otherwise works for any affiliate, subsidiary or other\n1\ndivision or business unit of the Company, the terms of this Agreement shall continue to apply with full force and effect. Employee acknowledges\nand understands that unless and until a subsequent written Agreement is signed by all parties to this Agreement that expressly supersedes this\nAgreement, this Agreement will continue in full force and effect.\n(e) PRESERVATION OF AT-WILL EMPLOYMENT RELATIONSHIP. EMPLOYEE AGREES THAT NO PROVISION IN\nTHIS AGREEMENT SHALL BE CONSTRUED TO CREATE AN EXPRESS OR IMPLIED EMPLOYMENT CONTRACT OR A PROMISE\nOF EMPLOYMENT FOR ANY SPECIFIC PERIOD OF TIME. EMPLOYEE FURTHER ACKNOWLEDGES AND AGREES THAT\nEMPLOYEE’S EMPLOYMENT WITH THE COMPANY IS “AT WILL” (UNLESS EMPLOYEE ENTERED INTO A WRITTEN\nEMPLOYMENT CONTRACT EXPRESSLY PROVIDING THAT HIS/HER EMPLOYMENT IS NOT AT WILL AND SIGNED BY AN\nOFFICER OF US FOODS, INC. WHO IS AUTHORIZED TO DO SO) AND CAN BE TERMINATED AT ANY TIME BY THE COMPANY\nOR EMPLOYEE, WITH OR WITHOUT REASON, WITH OR WITHOUT NOTICE, AND WITH OR WITHOUT CAUSE.\n(f) Termination of Employment. Employee understands and agrees that the obligations and restrictions imposed under this\nAgreement shall apply after the termination of employment, regardless of whether such termination is voluntary or involuntary, or is with or\nwithout cause or notice.\n2. Definitions. For the purposes of this Agreement, the following terms shall have the following meanings:\n(a) “Associate” means an employee of the Company.\n(b) “Company” means US Foods, Inc., its subsidiaries, its parent company USF Holding Corp., any entity owned or controlled by\nUSF Holding Corp. or US Foods, Inc. as well as any other businesses that US Foods, Inc., may acquire or establish after the execution of this\nAgreement and any successors and assigns.\n(c) “Business of the Company” is the food and foodservice distribution business, including the acquisition, procurement, production,\nsale and distribution of food and related products, equipment, goods and services to restaurants, schools, hospitals, and other institutions or\nestablishments that serve food.\n(d) “Person(s)” mean all individuals, partnerships, corporations, limited liability companies, firms, businesses, and other entities,\nother than the Company.\n(e) “Confidential Information” means any information (in whatever form and whether or not recorded in any media) relating to the\nBusiness of the Company (whether constituting a trade secret or not) and including, but not limited to, customer and vendor lists or other\ndocuments containing the names and/or job titles of the principal contact(s) of each customer and/or vendor; customer and vendor documents,\nrouting arrangements, files, purchases and account history; vendor information; route lists of sales employees; pricing, margins, sales allowances,\ndiscounts, incentives and pricing strategies and policies; invoices; procurement strategies and pricing; marketing and product information; order\nguides or histories; sales data\n2\nfor any employee, product, customer or territory; sales and delivery schedules; credit terms, policies and information, including invoicing and\npayment records; information on customer or vendor preferences; promotional programs; financial information of the Company or its customers\nor vendors; the terms, conditions and structures of the Company’s contracts and agreements with customers, vendors and suppliers; information\npertaining to the Company’s methods of operation, processes, strategies and techniques, including strategies for identifying and satisfying the\nneeds of specific customers and types of customers; and lists containing personal and personnel information about other employees of the\nCompany, including but not limited to their home and business telephone, mobile and pager numbers, addresses, compensation terms, customers\nserved by and vendors assigned to such employees, and job performance; which (i) is or has been disclosed to Employee (or of which Employee\nbecame aware) as a consequence of or through his or her relationship to the Company, (ii) has value to the Company or would be of value (actual\nor potential) to a competitor of the Company, and (iii) is not generally known, or readily available by lawful means, to the public (including\ncompiled information that is not publicly available in such a consolidated form). Confidential Information shall not include any information that\nhas been voluntarily disclosed to the public by the Company (except where such public disclosure has been made by Employee without\nauthorization) or that has been independently developed and disclosed by others, or that otherwise has entered the public domain through lawful\nmeans.\n(f) “Pre-Termination Period” means the eighteen (18) month period immediately prior to the termination of Employee’s\nemployment with the Company.\n(g) “Inventions.” For purposes of this Agreement, “Inventions” shall mean all software programs, source or object code,\nimprovements, formulas, developments, ideas, processes, techniques, know-how, data, and discoveries, whether patentable or unpatentable,\neither conceived or reduced to practice by Employee while in the Company’s or an Affiliated Company’s employ, either solely or jointly with\nothers, and whether or not during regular working hours, or conceived or reduced to practice by Employee within one year of the termination of\nEmployee’s employment with the Company using Company Confidential Information.\n(h) “Company Inventions.” For purposes of this Agreement, “Company Inventions” shall mean any Invention that either:\n(1) relates, at least in part, at the time of conception or reduction to practice of the Invention, to:\ni.\nthe Company’s Business, projects or products, or to the manufacture or utilization thereof; or\nii. the Company’s and/or an Affiliated Company’s actual or demonstrably anticipated research or development; or\n(2) results, at least in part, from any work performed directly or indirectly by Employee for the Company; or\n(3) results, at least in part, from the use of the Company’s or an Affiliated Company’s equipment, supplies, facilities or trade\nsecret information.\n3\n3. Non-Disclosure of Confidential Information.\n(a) At no time, either during or after the termination of employment, shall Employee directly or indirectly obtain, disclose or use for\nEmployee or any Person, or aid others in obtaining, disclosing or using any Confidential Information of the Company, other than as may be\nrequired in the performance of duties for and as authorized by the Company. All Confidential Information is and shall remain the sole property of\nthe Company. The Company understands that under the current laws of certain states, restrictions on the use or disclosure of confidential\ninformation must be of a finite duration. Accordingly, the parties agree that should the law of such a state be applied to this Agreement, the\nrestrictions on the use or disclosure of Confidential Information that is not a trade secret (the restriction on the use or disclosure of which shall be\nunlimited by time) shall apply only for a period of two (2) years from the termination of Employee’ s employment with the Company, which\nperiod Employee acknowledges to be reasonable under the circumstances at the time of execution of the Agreement.\n(b) Notwithstanding anything to the contrary, this Agreement shall not prevent Employee from revealing evidence of criminal\nwrongdoing to law enforcement or prohibit Employee from divulging Confidential Information by order of court or agency of competent\njurisdiction. However, Employee shall promptly inform the Company of any such situations and shall take such reasonable steps to prevent\ndisclosure of Confidential Information until the Company has been informed of such requested disclosure and the Company has had an\nopportunity to respond to the court or agency.\n4. Return of Company Property and Confidential Information. All records, files, customer order guides, pricelists, photo/videographic\nmaterials, computers and computer related equipment (e.g . hardware, software, disks, electronic storage devices, etc.), cell phones, smart phones,\nBlackberries, personal data assistants, keys, equipment, access cards, passwords, access codes, badges, credit cards or other tangible material,\nand all other documents, including but not limited to Confidential Information, Employee receives, acquires, produces or has access to as a result\nof his or her employment with the Company (regardless of the medium in which any information is stored) (collectively “Property”), are the\nexclusive property of the Company. Upon the termination of Employee’s employment, Employee shall return to the Company all Property of the\nCompany and all copies thereof in Employee’s possession or control.\n5. Non-Solicitation of Restricted Customers.\n(a) For the one (1) year period following the termination of Employee’s employment with the Company, Employee shall not, directly\nor indirectly, (for Employee or any other Person, whether as an employee, owner, consultant, independent contractor, or in any other capacity) for\nthe purpose of providing products or services competitive with those conducted, authorized, offered or provided by the Company, solicit, market,\nservice, contact, sell to or attempt to sell to any Person(s):\n(1) to whom Employee sold products or services on behalf of the Company at any time during the Pre-Termination Period,\nincluding sales performed while Employee was in training or providing vacation or leave coverage for another Associate; or\n4\n(2) to whom the Company sold products or services and with whom Employee had contact on behalf of the Company in\nconnection with such sale at any time during the Pre-Termination Period; or\n(3) to whom the Company sold products or services at any time during the Pre-Termination Period and which sale was made\nthrough any Associate whom Employee directly or indirectly managed or supervised (at any level of management or supervision); or\n(4) with regard to whom, at any time during the Pre-Termination Period, Employee (or any Associate whom Employee directly\nor indirectly managed or supervised, at any level of management or supervision): (i) participated in the preparation of a written sales\nproposal or bid containing Confidential Information to such Person on behalf of the Company; (ii) participated in the setting of\nprices, margins, or credit terms for such Person(s) on behalf of the Company; or (iii) used or received or created or reviewed any\nConfidential Information relating to such Person(s) on behalf of the Company; or\n(5) who is, or functions as, a food broker or contract management company or group purchasing organization or otherwise\nrepresents one or more customers or negotiates on their behalf, and to whom or through whom Employee or any Associate whom\nEmployee directly or indirectly managed or supervised (at any level of management or supervision) sold products or services on\nbehalf of the Company at any time during the Pre-Termination Period.\n(b) A “Restricted Customer” is that and are those Person(s) identified in Section 5(a) and 5(b) herein.\n(c) Examples of indirect solicitation, marketing, servicing, contacting, selling to or attempting to sell to, include but are not limited to,\nproviding Confidential Information to a Person(s) regarding a Restricted Customer; advising or encouraging a Restricted Customer to reduce or\ncease doing business with the Company or to do business with a Person that provides products or services competitive with the Company;\nswitching or swapping sales, solicitation, or service responsibility for a Restricted Customer with an employee of a Person that is competitive\nwith the Company; participating in the supervision or management of any Person or employee of such Person, regardless of other intervening\nlevels of management or supervision, with regard to a Restricted Customer; participating in the setting of prices, credit terms or margins for a\nRestricted Customer; participating in developing and executing marketing and sales strategies and decisions affecting a Restricted Customer; and\nreceiving any personal benefit (present or future) in the event a Restricted Customer should do any business with a Person.\n5\n6. Non-Solicitation of Company Employees. For a period of one (1) year following Employee’s termination of employment with the\nCompany, Employee will not, directly or indirectly, on behalf Employee or for any other Person, entice, induce, encourage or solicit or attempt to\nentice, induce, encourage or solicit any individual then employed by the Company and with whom the Employee had work-related dealings as a\nco-employee of the Company to leave such employment with the Company (this provision is not intended to restrict communications addressed\nto the general public, such as advertising to fill open positions) nor will the Employee hire any such individual for any other Person during the\nsame one-year period following the Employee’s termination.\n7. Ownership of Inventions.\n(a) Employee shall disclose all Inventions promptly and fully to the Company.\n(b) Except as excluded in Section 7(e) below, Employee hereby assigns, and agrees to assign, to the Company all of Employee’s\nright, title and interest in and to all Company Inventions and agrees that all such Company Inventions shall be the Company’s sole and exclusive\nproperty to the maximum extent permitted by law.\n(c) Employee shall at the request of the Company (but without additional compensation from the Company): (i) execute any and all\npapers and perform all lawful acts that the Company deems necessary for the preparation, filing, prosecution, and maintenance of applications for\nUnited States patents or copyrights and foreign patents or copyrights on any Company Inventions, (ii) execute such instruments as are necessary\nto assign to the Company or to the Company’s nominee, all of Employee’s right, title and interest in any Company Inventions so as to establish or\nperfect in the Company or in the Company’s nominee, the entire right, title and interest in such Company Inventions, and (iii) execute any\ninstruments necessary or that the Company may deem desirable in connection with any continuation, renewal or reissue of any patents in any\nCompany Inventions, renewal of any copyright registrations for any Company Inventions, or in the conduct of any proceedings or litigation\nrelating to any Company Inventions. All expenses incurred by the Employee by reason of the performance of any of the obligations set forth in\nthis Section 7(e) shall be borne by the Company.\n(d) Concurrent with Employee’s execution of this Agreement, Employee attaches a list and brief description of all unpatented\ninventions and discoveries, if any, made or conceived by Employee prior to Employee’s employment with the Company and that are to be\nexcluded from this Agreement. If no such list is attached at the time of execution of this Agreement, it shall be conclusively presumed that\nEmployee has waived any right Employee may have to any such invention or discovery which relates to the Company’s Business.\n(e) Provisions (a) through (d) of this Section 7 regarding assignment of right, title and interest do not apply to Inventions for which no\nequipment, supplies, facility or trade secret information of the Company was used and which was developed entirely on Employee’s own time,\nunless (i) the Inventions relate either to the business of the Company, or to the Company’s actual or demonstrably anticipated research or\ndevelopment, or (ii) the Inventions result from any work directly or indirectly performed by the Employee for the Company.\n6\n8. Non-Impairment of Common Law. Nothing in this Agreement shall relieve Employee of any duties or obligations Employee has to the\nCompany under statutory or common law, which include but are not limited to: fiduciary duties, the duty of loyalty, and the duty not to tortiously\ninterfere with business relationships.\n9. Reasonable and Necessary; Severability; Enforceability; Non-Waiver. The terms and provisions of this Agreement are severable and\nif any term or provision is held to be unenforceable, it shall be enforced to the maximum extent allowable under the law and reformed or severed\nto the minimum extent necessary to render it or the Agreement enforceable. Any such alteration shall not affect the validity and enforceability of\nany other term or provision. Employee acknowledges that the obligations contained in this Agreement are not indivisible to any extent but are\nfully divisible and reformable or severable as legally necessary whether through alteration of a word, clause or sentence. The Company’s failure\nto act upon any breach of this Agreement or waiver of any such breach shall not constitute a waiver of any preceding or succeeding breach, or of\nany other right.\n10. Waiver of Jury Trial. Any action, lawsuit, demand, claim or counterclaim over this Agreement or any of its terms shall be resolved by\na judge alone, and both parties hereby expressly waive and forever disclaim the right to a trial before a civil jury.\n11. Notification. If, within the one (1) year after the termination of Employee’s employment, the Employee provides services as an\nemployee, independent contractor or consultant, owner or in any other capacity, whether or not for compensation, to any Person that offers\nproducts or services competitive with those provided by the Company, then Employee shall promptly provide the Company with the following\ninformation about such Person: the name, address and telephone number of the location to which Employee is assigned, and his or her job title.\nEmployee shall promptly provide any such Person with a copy of this Agreement, and employee consents to the Company’s right, at any time, to\nnotify such Person of this Agreement, as well as the details of any alleged violations thereof.\n12. Non-Disparagement. During and after employment with the Company, Employee shall not divulge, disclose or communicate to others,\nin any manner whatsoever, information or statements that disparage or are intended to disparage the Company or its business reputation.\n13. Remedies for Breach. Employee agrees that any breach of this Agreement by Employee will cause the Company to suffer immediate\nand irreparable injury, for which there is no adequate remedy at law. In the event of a breach or threatened breach of any of the terms of this\nAgreement, Employee agrees the Company shall be entitled to seek and obtain enforcement of this Agreement by means of a decree of specific\nperformance, a temporary restraining order, a preliminary or permanent injunction, and any other remedies at law or equity which may be\navailable, including the right to receive monetary damages. Employee shall reimburse the Company for all reasonable attorneys’ fees and costs\nincurred by the Company in enforcing this Agreement.\n14. Other Agreements. In the event Employee executed other written agreements relating to this subject matter with the Company, and/or\nin the event Employee enters into other\n7\nwritten agreements that contain provisions similar to the provisions contained herein, all such provisions shall be interpreted to provide the\nCompany with cumulative rights and remedies and the benefits and protections provided to the Company under each such agreement shall be\ngiven full force and effect. No amendment, waiver or revocation of this Agreement shall be effective unless set forth in writing expressly stating\nthe amendment, waiver or revocation and signed by an authorized officer of the Company.\n15. Successors and Assigns. Employee expressly agrees that this Agreement, including the rights and obligations hereunder, may be\ntransferred and/or assigned by the Company without the further consent of Employee, and that this Agreement is for the benefit of and may be\nenforced by the Company, its present and future successors, assigns, subsidiaries, affiliates, and purchasers, but is not assignable by Employee.\n16. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without\napplying its conflicts of laws principles. The exclusive venue for any litigation between Employee and Company based upon any fact, matter or\nclaim arising out of or relating to this Agreement shall be the state or federal courts located in Chicago, Illinois, and Employee hereby consents\nto any such court’s exercise of personal jurisdiction over him/her for such purpose.\n17. Section Headings. The headings of sections contained in this Agreement are inserted only as a matter of convenience and for reference\nand in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.\nEmployee, intending to be legally bound, hereby acknowledges that he or she: has read this Agreement in its entirety and understands all of its\nterms and conditions; is entering into this Agreement voluntarily, without coercion from any source; and agrees to abide by all of the terms and\nconditions of this Agreement. Employee further represents that any questions regarding this Agreement have been answered by the Company to\nthe satisfaction of the Employee.\nUS FOODS, INC.\nEMPLOYEE\nBy:\n/s/ Juliette Pryor\n/s/ Pietro Satriano\nOfficer Signature\nEmployee Signature\nPrinted Name: Juliette Pryor\nPrinted Name: Pietro Satriano\nTitle:\nExecutive Vice President, General Counsel and\nChief Compliance Officer\nTitle:\nPresident and CEO\nDate:\n7/21/2015\nDate:\n7/21/2015\n8
diff --git a/dev-0/out.tsv b/dev-0/out.tsv
new file mode 100644
index 0000000..2b0a1ed
--- /dev/null
+++ b/dev-0/out.tsv
@@ -0,0 +1,83 @@
+effective_date=2014-05-20 jurisdiction=New_York term=3_years party=Visser_Precision_Cast_Llc party=Gregory_A._Ruegsegger
+effective_date=2008-04-08 jurisdiction=Georgia party=Oglethorpe_Power_Corporation party=Frank_G._Gill
+effective_date=1999-05-03 jurisdiction=Delaware party=New_Mountain_Capital_Llc
+effective_date=2009-02-23 jurisdiction=Massachusetts party=Nitromed_Inc. party=Kenneth_M._Bate
+effective_date=2015-03-01 jurisdiction=Delaware term=12_months party=Teva_Pharmaceutical_Industries_Ltd.
+effective_date=2003-10-10 jurisdiction=Washington party=First_Financial_Northwest_Inc. party=Spencer_L._Schneider
+effective_date=1999-05-03 jurisdiction=Delaware party=California_Micro_Devices_Corporation party=Robert_V._Dickinson
+effective_date=2003-10-02 jurisdiction=New_Jersey term=2_years party=Interpace_Diagnostics_Group_Inc.
+effective_date=2002-10-06 jurisdiction=New_York party=Intercept_Pharmaceuticals_Inc. party=Mark_E._Pruzanski
+effective_date=1999-05-03 party=Anadigics_Inc. party=Walter_R._Bashaw
+effective_date=2001-03-03 jurisdiction=Delaware party=State_Com
+effective_date=1999-05-03 jurisdiction=Delaware term=5_years party=Tesaro_Inc. party=Craig_W._Logan
+effective_date=2012-12-17 jurisdiction=Delaware term=1_year party=Allergan_Inc. party=David_M._Lawrence
+effective_date=2000-05-23 jurisdiction=Delaware party=Com_Inc.
+jurisdiction=Delaware term=2_years party=Virgin_Mobile_Usa_Llc
+effective_date=2012-01-25 jurisdiction=Massachusetts term=2_years party=Business_Com party=Richard_A._Packer
+effective_date=2008-07-31 jurisdiction=Delaware party=Cogent_Inc. party=David_G._Fellner
+jurisdiction=California term=2_years party=Penumbra_Inc. party=Robert_D._Evans
+effective_date=1999-05-03 jurisdiction=New_York term=3_years party=Aol_Inc. party=Christine_C._Pantoya
+effective_date=2017-07-11 jurisdiction=California party=Cubic_Corporation party=John_D._Thomas
+effective_date=2003-10-02 jurisdiction=Iowa term=12_months party=Flexsteel_Industries_Inc. party=Jerald_K._Dittmer
+effective_date=1999-05-03 jurisdiction=Delaware term=12_months party=Integrated_Device_Technology_Inc.
+jurisdiction=Virginia term=3_years party=Maximus_Inc. party=Bruce_L._Caswell
+jurisdiction=North_Carolina party=Inspire_Pharmaceuticals_Inc. party=Christy_L._Shaffer
+jurisdiction=Arizona party=Compuware_Corporation
+jurisdiction=Indiana party=The_Bank
+jurisdiction=New_Jersey
+effective_date=1964-05-03 jurisdiction=California party=The_Company party=Kenneth_I._Juster
+effective_date=1999-05-03 jurisdiction=Delaware party=Focus_Brands_Inc.
+effective_date=2005-03-04 jurisdiction=Georgia party=Citi_Trends_Inc.
+effective_date=2005-07-03 jurisdiction=Delaware term=5_years party=Common_Sense_Ltd. party=Stephen_E._King
+effective_date=2015-06-23 jurisdiction=New_York party=Consac_Llc
+effective_date=2008-01-01 jurisdiction=California party=Biolargo_Inc. party=Joseph_L._Provenzano
+jurisdiction=Minnesota
+jurisdiction=Delaware term=2_years party=Kbs_Capital_Advisors_Llc
+jurisdiction=Kentucky term=1_year party=Cafepress_Inc. party=Ekumene_M._Lysonge
+effective_date=2017-01-13 jurisdiction=Minnesota party=Target_Corporation
+jurisdiction=Ohio
+jurisdiction=Michigan party=Tex_Inc.
+effective_date=1999-05-03 jurisdiction=California party=Gigpeak_Inc.
+effective_date=1999-05-03 jurisdiction=Minnesota party=New_England_Business_Service_Inc. party=Thomas_D._Gleason
+effective_date=2008-11-06 jurisdiction=California party=Unfair_Com
+effective_date=1999-05-03 jurisdiction=Delaware term=12_months party=Opsware_Inc.
+effective_date=2018-05-03 jurisdiction=Illinois term=12_months party=Ahp_Servicing_Llc
+effective_date=1999-05-03 jurisdiction=Minnesota term=2_years party=Flexsteel_Industries_Inc. party=Donald_D._Dreher
+effective_date=2010-06-23 jurisdiction=Texas term=2_years party=Chalmers_Energy_Inc. party=Munawar_H._Hidayatallah
+jurisdiction=New_Jersey party=Algorx_Pharmaceuticals_Inc.
+effective_date=2009-11-06 jurisdiction=Delaware party=Hid_Global_Corporation party=Robert_T._De
+effective_date=2001-05-03 jurisdiction=Washington party=Corus_Pharma_Inc. party=Jonathan_P._Mow
+jurisdiction=Georgia term=1_year party=Omni_National_Bank party=Jeffrey_L._Levine
+effective_date=1999-05-03 jurisdiction=Delaware term=12_month party=Insight_Venture_Partners_Llc
+effective_date=1999-03-16 jurisdiction=Oregon party=Acumed_Inc.
+effective_date=2008-07-02 jurisdiction=California party=Unionbancal_Corporation party=David_R._Andrews
+effective_date=2012-06-11 jurisdiction=Delaware party=Lightwave_Logic_Inc. party=Ronald_A._Bucchi
+effective_date=1999-05-03 jurisdiction=Delaware term=12_months party=Webex_Communications_Inc. party=Mark_T._Gorman
+effective_date=2007-04-30 jurisdiction=Massachusetts term=5_years party=Implant_Sciences_Corporation party=Barry_I._Grossman
+effective_date=1967-05-03 jurisdiction=California party=The_Company party=Attachment_A._As
+effective_date=1999-05-03 jurisdiction=Delaware party=Contran_Corporation party=Roger_A._Cooke
+effective_date=2016-03-15 jurisdiction=Delaware party=The_Company party=Anthony_M._Romano
+effective_date=2005-09-15 jurisdiction=Illinois party=Midland_Company party=Paul_B._Mulhollem
+effective_date=2005-05-04 jurisdiction=Idaho party=The_Company party=Michael_L._Mooney
+effective_date=1999-05-03 jurisdiction=Washington party=Each_Company party=Catherine_M._Kilbane
+effective_date=2003-10-02 jurisdiction=California party=Wizard_World_Inc. party=John_D._Maatta
+effective_date=1999-05-03 jurisdiction=New_York term=12_months party=Omrix_Biopharmaceuticals_Inc. party=Susan_E._Morano
+effective_date=2004-05-03 jurisdiction=California term=12_months party=The_Bank party=Joseph_W._Kiley
+effective_date=1999-05-03 jurisdiction=Utah party=Galil_Medical_Inc. party=Scott_P._Youngstrom
+effective_date=1999-05-03 jurisdiction=Delaware term=3_years party=Wright_Controls_Inc. party=John_J._Delaney
+effective_date=2015-12-08 jurisdiction=Washington term=1_year party=Anchor_Bank party=Varonica_S._Ragan
+effective_date=2005-02-24 jurisdiction=Virginia term=1_year party=The_Company party=Alexander_H._Good
+effective_date=1999-05-03 jurisdiction=Connecticut term=18_months party=Mapinfo_Corporation party=David_A._Westenberg
+effective_date=2010-07-13 jurisdiction=New_York term=12_months party=Axcan_Pharma_Inc.
+effective_date=2010-05-03 jurisdiction=Delaware term=10_years party=Motorola_Inc.
+effective_date=2008-01-01 jurisdiction=Idaho term=5_years party=The_Company party=Paul_F._Judge
+effective_date=2017-10-02 jurisdiction=Delaware term=2_years party=Potbelly_Corporation
+ party=Ideal_Restaurant_Group_Inc.
+effective_date=2011-03-29 jurisdiction=Texas party=Newgistics_Inc. party=Stephen_M._Mattessich
+effective_date=2011-05-26 jurisdiction=California term=24_month party=Skyworks_Solutions_Inc. party=Richard_K._Williams
+effective_date=2006-09-01 jurisdiction=Washington term=5_years party=Exchange_Com
+effective_date=2015-04-02 jurisdiction=Delaware term=2_years party=Columbus_Mckinnon_Corporation party=Alan_S._Korman
+jurisdiction=Washington party=Adaptive_Biotechnologies_Microsoft_Corporation
+effective_date=2011-01-18 jurisdiction=New_York party=Orthovita_Inc. party=Pamela_F._Forrest
+effective_date=1999-05-03 jurisdiction=Washington term=1_year party=Alder_Biopharmaceuticals_Inc. party=James_B._Bucher
+jurisdiction=Illinois term=18_month party=The_Company
diff --git a/run.ipynb b/run.ipynb
new file mode 100644
index 0000000..3f624ad
--- /dev/null
+++ b/run.ipynb
@@ -0,0 +1,216 @@
+{
+ "cells": [
+  {
+   "cell_type": "code",
+   "execution_count": 54,
+   "id": "21af5e82",
+   "metadata": {},
+   "outputs": [],
+   "source": [
+    "import csv\n",
+    "import re\n",
+    "from collections import Counter\n",
+    "from datetime import datetime\n",
+    "import datefinder\n",
+    "import word2number"
+   ]
+  },
+  {
+   "cell_type": "code",
+   "execution_count": 12,
+   "id": "fd7884b0",
+   "metadata": {},
+   "outputs": [],
+   "source": [
+    "def most_frequent(List, howmany=1):\n",
+    "    counter = Counter(List)\n",
+    "    return counter.most_common(1)"
+   ]
+  },
+  {
+   "cell_type": "code",
+   "execution_count": 49,
+   "id": "de539456",
+   "metadata": {},
+   "outputs": [],
+   "source": [
+    "def get_jurisdiction(text):\n",
+    "    us_states= r\"(Alabama|Alaska|Arizona|Arkansas|California|Colorado|Connecticut|Delaware|Florida|Georgia|Hawaii|Idaho|Illinois|Indiana|Iowa|Kansas|Kentucky|Louisiana|Maine|Maryland|Massachusetts|Michigan|Minnesota|Mississippi|Missouri|Montana|Nebraska|Nevada|New\\sHampshire|New\\sJersey|New\\sMexico|New\\sYork|North\\sCarolina|North\\sDakota|Ohio|Oklahoma|Oregon|Pennsylvania|Rhode\\sIsland|South\\sCarolina|South\\sDakota|Tennessee|Texas|Utah|Vermont|Virginia|Washington|West\\sVirginia|Wisconsin|Wyoming)\"\n",
+    "\n",
+    "    matches = re.findall(us_states, text, re.MULTILINE | re.IGNORECASE)\n",
+    "    result = most_frequent(matches)\n",
+    "\n",
+    "    if result:\n",
+    "        return result[0][0].replace(\" \", \"_\")"
+   ]
+  },
+  {
+   "cell_type": "code",
+   "execution_count": 47,
+   "id": "51106ddf",
+   "metadata": {},
+   "outputs": [],
+   "source": [
+    "def get_parties(text):\n",
+    "    company_regex = r\"(([A-Z][A-za-z]+,?\\s)+(Inc\\.|LLC|Ltd\\.|Company|Corporation|INC\\.|LTD\\.|COMPANY|CORPORATION|Bank|Com|Council|Technology|Systems))\"\n",
+    "    regex2 = r\"([A-Z][a-z]+\\s[A-Z]\\.\\s[A-Z][a-z]+)\"\n",
+    "\n",
+    "    matches = re.findall(company_regex, text, re.MULTILINE)\n",
+    "    matches = [m[0] for m in matches]\n",
+    "    \n",
+    "    regex2 = re.findall(regex2, text, re.MULTILINE)\n",
+    "\n",
+    "    companies = []\n",
+    "    for m in matches:\n",
+    "        splitted = [w.capitalize().rstrip(\",\") for w in m.split()]\n",
+    "        companies.append(\" \".join(splitted))\n",
+    "\n",
+    "    result = most_frequent(companies,2)\n",
+    "\n",
+    "    \n",
+    "    if len(result) < 2:\n",
+    "        result.extend(most_frequent(regex2, 2-len(result)))   \n",
+    "\n",
+    "    if result:\n",
+    "        return [x[0].replace(\" \", \"_\") for x in result]\n"
+   ]
+  },
+  {
+   "cell_type": "code",
+   "execution_count": 5,
+   "id": "e15bf4c1",
+   "metadata": {},
+   "outputs": [],
+   "source": [
+    "def get_date(text):\n",
+    "    matches = []\n",
+    "    df_matches = datefinder.find_dates(text)\n",
+    "    \n",
+    "    while True:\n",
+    "        try:\n",
+    "            m = next(df_matches)\n",
+    "        except StopIteration:\n",
+    "            break\n",
+    "        except:\n",
+    "            continue\n",
+    "        matches.append(m)\n",
+    "\n",
+    "    matches = filter(lambda x: 2022 > x.year > 1950, matches)\n",
+    "\n",
+    "    dates = [x.strftime(\"%Y-%m-%d\") for x in matches]\n",
+    "\n",
+    "    result = most_frequent(dates)\n",
+    "\n",
+    "    if len(result) == 0:\n",
+    "        return None\n",
+    "    else:\n",
+    "        return result[0][0]"
+   ]
+  },
+  {
+   "cell_type": "code",
+   "execution_count": 51,
+   "id": "f0279749",
+   "metadata": {},
+   "outputs": [],
+   "source": [
+    "def get_term(text):\n",
+    "    term_regex = r\"\\b([\\w()]*)\\s(months?|years?)\\b\"\n",
+    "\n",
+    "    match = list(re.finditer(term_regex, text, re.MULTILINE))\n",
+    "\n",
+    "    if match:\n",
+    "        number, unit = match[0].groups()\n",
+    "    else:\n",
+    "        return None\n",
+    "\n",
+    "    if m := re.match(r\"\\d+\", number):\n",
+    "        number = m.group()\n",
+    "    else:\n",
+    "        try:\n",
+    "            number = w2n.word_to_num(re.match(r\"\\b\\w+\\b\", number).group())\n",
+    "        except:\n",
+    "            return None\n",
+    "\n",
+    "    return str(number) + \"_\" + unit"
+   ]
+  },
+  {
+   "cell_type": "code",
+   "execution_count": 52,
+   "id": "27dad743",
+   "metadata": {},
+   "outputs": [],
+   "source": [
+    "def run(text, needed_info):\n",
+    "    jurisdiction, date, term, parties = None, None, None, None\n",
+    "    \n",
+    "    if \"jurisdiction\" in needed_info:\n",
+    "        jurisdiction = get_jurisdiction(text)\n",
+    "    if \"effective_date\" in needed_info:\n",
+    "        date = get_date(text)\n",
+    "    if \"term\" in needed_info:\n",
+    "        term = get_term(text)\n",
+    "    if \"party\" in needed_info:\n",
+    "        parties = get_parties(text)\n",
+    "\n",
+    "    result_dict = {}\n",
+    "\n",
+    "    if date:\n",
+    "        result_dict[\"effective_date\"] = date\n",
+    "    if jurisdiction:\n",
+    "        result_dict[\"jurisdiction\"] = jurisdiction\n",
+    "    if term:\n",
+    "        result_dict[\"term\"] = term\n",
+    "\n",
+    "    result_str = \" \".join([f\"{k}={v}\" for k,v in result_dict.items()])\n",
+    "\n",
+    "    if parties:\n",
+    "        for p in parties :\n",
+    "            result_str += f\" party={p}\"\n",
+    "\n",
+    "    return result_str"
+   ]
+  },
+  {
+   "cell_type": "code",
+   "execution_count": 53,
+   "id": "7b0f1f52",
+   "metadata": {},
+   "outputs": [],
+   "source": [
+    "filenames=[('dev-0/in.tsv',\"dev-0/out.tsv\"), ('train/in.tsv', \"train/out.tsv\"), ('test-A/in.tsv', 'test-A/out.tsv')]\n",
+    "for filename in filenames:\n",
+    "    with open(filename[0], 'r', encoding=\"utf-8\") as in_file,\\\n",
+    "                open(filename[1], \"w\") as out_file:\n",
+    "            reader = csv.reader(in_file, delimiter='\\t', quoting=csv.QUOTE_NONE)\n",
+    "            for item in reader:\n",
+    "                needed_info = item[1].strip().split()\n",
+    "                text = item[2].replace(\"\\\\n\", \" \").replace(\"\\\\f\", \" \").replace(\"\\\\t\", \" \").strip()\n",
+    "                extracted = run(text, needed_info).replace(\":\", \"_\")\n",
+    "                out_file.write(extracted + \"\\n\")"
+   ]
+  }
+ ],
+ "metadata": {
+  "kernelspec": {
+   "display_name": "Python 3 (ipykernel)",
+   "language": "python",
+   "name": "python3"
+  },
+  "language_info": {
+   "codemirror_mode": {
+    "name": "ipython",
+    "version": 3
+   },
+   "file_extension": ".py",
+   "mimetype": "text/x-python",
+   "name": "python",
+   "nbconvert_exporter": "python",
+   "pygments_lexer": "ipython3",
+   "version": "3.9.7"
+  }
+ },
+ "nbformat": 4,
+ "nbformat_minor": 5
+}
diff --git a/run.py b/run.py
index e69de29..00d8934 100644
--- a/run.py
+++ b/run.py
@@ -0,0 +1,160 @@
+#!/usr/bin/env python
+# coding: utf-8
+
+# In[54]:
+
+
+import csv
+import re
+from collections import Counter
+from datetime import datetime
+import datefinder
+import word2number
+
+
+# In[12]:
+
+
+def most_frequent(List, howmany=1):
+    counter = Counter(List)
+    return counter.most_common(1)
+
+
+# In[49]:
+
+
+def get_jurisdiction(text):
+    us_states= r"(Alabama|Alaska|Arizona|Arkansas|California|Colorado|Connecticut|Delaware|Florida|Georgia|Hawaii|Idaho|Illinois|Indiana|Iowa|Kansas|Kentucky|Louisiana|Maine|Maryland|Massachusetts|Michigan|Minnesota|Mississippi|Missouri|Montana|Nebraska|Nevada|New\sHampshire|New\sJersey|New\sMexico|New\sYork|North\sCarolina|North\sDakota|Ohio|Oklahoma|Oregon|Pennsylvania|Rhode\sIsland|South\sCarolina|South\sDakota|Tennessee|Texas|Utah|Vermont|Virginia|Washington|West\sVirginia|Wisconsin|Wyoming)"
+
+    matches = re.findall(us_states, text, re.MULTILINE | re.IGNORECASE)
+    result = most_frequent(matches)
+
+    if result:
+        return result[0][0].replace(" ", "_")
+
+
+# In[47]:
+
+
+def get_parties(text):
+    company_regex = r"(([A-Z][A-za-z]+,?\s)+(Inc\.|LLC|Ltd\.|Company|Corporation|INC\.|LTD\.|COMPANY|CORPORATION|Bank|Com|Council|Technology|Systems))"
+    regex2 = r"([A-Z][a-z]+\s[A-Z]\.\s[A-Z][a-z]+)"
+
+    matches = re.findall(company_regex, text, re.MULTILINE)
+    matches = [m[0] for m in matches]
+    
+    regex2 = re.findall(regex2, text, re.MULTILINE)
+
+    companies = []
+    for m in matches:
+        splitted = [w.capitalize().rstrip(",") for w in m.split()]
+        companies.append(" ".join(splitted))
+
+    result = most_frequent(companies,2)
+
+    
+    if len(result) < 2:
+        result.extend(most_frequent(regex2, 2-len(result)))   
+
+    if result:
+        return [x[0].replace(" ", "_") for x in result]
+
+
+# In[5]:
+
+
+def get_date(text):
+    matches = []
+    df_matches = datefinder.find_dates(text)
+    
+    while True:
+        try:
+            m = next(df_matches)
+        except StopIteration:
+            break
+        except:
+            continue
+        matches.append(m)
+
+    matches = filter(lambda x: 2022 > x.year > 1950, matches)
+
+    dates = [x.strftime("%Y-%m-%d") for x in matches]
+
+    result = most_frequent(dates)
+
+    if len(result) == 0:
+        return None
+    else:
+        return result[0][0]
+
+
+# In[51]:
+
+
+def get_term(text):
+    term_regex = r"\b([\w()]*)\s(months?|years?)\b"
+
+    match = list(re.finditer(term_regex, text, re.MULTILINE))
+
+    if match:
+        number, unit = match[0].groups()
+    else:
+        return None
+
+    if m := re.match(r"\d+", number):
+        number = m.group()
+    else:
+        try:
+            number = w2n.word_to_num(re.match(r"\b\w+\b", number).group())
+        except:
+            return None
+
+    return str(number) + "_" + unit
+
+
+# In[52]:
+
+
+def run(text, needed_info):
+    jurisdiction, date, term, parties = None, None, None, None
+    
+    if "jurisdiction" in needed_info:
+        jurisdiction = get_jurisdiction(text)
+    if "effective_date" in needed_info:
+        date = get_date(text)
+    if "term" in needed_info:
+        term = get_term(text)
+    if "party" in needed_info:
+        parties = get_parties(text)
+
+    result_dict = {}
+
+    if date:
+        result_dict["effective_date"] = date
+    if jurisdiction:
+        result_dict["jurisdiction"] = jurisdiction
+    if term:
+        result_dict["term"] = term
+
+    result_str = " ".join([f"{k}={v}" for k,v in result_dict.items()])
+
+    if parties:
+        for p in parties :
+            result_str += f" party={p}"
+
+    return result_str
+
+
+# In[53]:
+
+
+filenames=[('dev-0/in.tsv',"dev-0/out.tsv"), ('train/in.tsv', "train/out.tsv"), ('test-A/in.tsv', 'test-A/out.tsv')]
+for filename in filenames:
+    with open(filename[0], 'r', encoding="utf-8") as in_file,                open(filename[1], "w") as out_file:
+            reader = csv.reader(in_file, delimiter='\t', quoting=csv.QUOTE_NONE)
+            for item in reader:
+                needed_info = item[1].strip().split()
+                text = item[2].replace("\\n", " ").replace("\\f", " ").replace("\\t", " ").strip()
+                extracted = run(text, needed_info).replace(":", "_")
+                out_file.write(extracted + "\n")
+
diff --git a/test-A/in.tsv b/test-A/in.tsv
new file mode 100644
index 0000000..9ec8aa6
--- /dev/null
+++ b/test-A/in.tsv
@@ -0,0 +1,203 @@
+01e707f2d8b8d070d1d8ee90e8b2e7d6.pdf	effective_date jurisdiction party term	EX-10 .2 3 form8k022717_ex10-2 .htm NON-COMPETITION, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT DATED AS\nOF FEBRUARY 24, 2017 BETWEEN LSI INDUSTRIES INC. AND DENNIS W. WELLS.\nEXHIBIT 10.2\nNON-COMPETITION, NON-SOLICITATION\nAND NON-DISCLOSURE AGREEMENT\nThis Non-Competition, Non-Solicitation and Non-Disclosure Agreement (this "Agreement") is made this 24th day of February, 2017,\nby and among LSI Industries Inc., an Ohio corporation ("LSI") and Dennis W. Wells ("Executive").\nWITNESSETH:\nWHEREAS, LSI and its affiliates and subsidiaries are engaged in the business of designing, engineering, manufacturing and marketing\na broad array of lighting and graphics products for commercial/industrial lighting applications and corporate visual image programs (the\n"Business")\nWHEREAS, Executive was initially employed as LSI's Chief Operating Officer and subsequently promoted to Chief Executive Officer\non October 22, 2014 and LSI's President on October 29, 2014;\nWHEREAS, the parties entered into an Employment Agreement as of October 1, 2014, which is being modified by an Amended and\nRestated Employment Agreement (the "Amended Employment Agreement") contemporaneously with this Agreement providing for, among other\nthings, increased compensation and severance benefits, and in return, LSI seeks a renewal and restatement of Executive's commitment to LSI as\ndescribed herein.\nNOW THEREFORE, in consideration of the mutual covenants and agreements set forth below and other good and valuable\nconsideration, the receipt of which is hereby acknowledged, LSI and the Executive hereby agree, as follows:\n1.\nRestrictions on Use and Disclosure of Information.\n(a)\nGeneral Restrictions. Executive hereby acknowledges that, as a result of his relationship with the Company,\nincluding, but not limited to his beneficial interest in LSI and roles in the management and operation of the Business, Executive has acquired\ntrade secrets, proprietary data and confidential information related to the Business. Executive agrees that he will not, without the express written\nconsent of LSI, at any time, directly or indirectly, communicate, disclose or divulge to, any person, nor use for his own benefit or the benefit of\nany person, any of the trade secrets, proprietary data or confidential information related to the Business. Executive agrees that such trade secrets,\nproprietary data and confidential information include, but are not limited to, the following: existing and contemplated projects; joint ventures;\nresearch and development programs; work product, business, accounting and financial information and data (except that Executive may provide\nsuch information and data to his financial and legal advisors in connection with the filing of tax returns); marketing plans; pricing, methods and\nprocesses involved in developing, manufacturing, distributing and selling products and services; lists and/or identities of customers, distributors,\nsuppliers and prospective clients; information relating to inventions, modifications, discoveries, designs, developments, improvements,\nenhancements, processes, formulas, data, techniques, computer programs, frameworks, methodology, analytical approaches, works of authorship,\nknow-how, trade secrets, other intellectual property or licensing arrangements; and the identity of any persons or entities associated with or\nengaged as partners, employees, consultants, advisers and/or agents of LSI (collectively, the "Restricted Information").\n(b)\nDisclosure in Proceedings. Notwithstanding the foregoing, Executive may disclose Restricted Information only to\nthe extent that disclosure thereof is required by a court or other governmental agency of competent jurisdiction, provided that Executive promptly\nnotifies LSI of any such demand, order or threat (and in any event prior to any such disclosure) and reasonably cooperates with LSI in obtaining\nany available protective order or the equivalent prior to the disclosure of such Restricted Information. LSI agrees to indemnify and hold\nExecutive harmless from and against his refusal to submit to a demand to disclose such Restricted Information and all fees, costs, or expenses\nincurred by him (including reasonable attorneys fees and disbursements) in responding to or contesting such demand or cooperating with LSI in\nobtaining such protective order or equivalent, or in refusing to furnish such Restricted Information.\n2.\nNon-Solicitation. During the period of Executive's employment with LSI and for a period of twelve (12) months after\nemployment with LSI ends for any reason, Executive shall not, directly or indirectly: (a) intentionally or knowingly solicit, divert, take away,\naccept or attempt to divert or take away any business in which LSI was engaged immediately prior to the date hereof, from any customer of LSI\nor any active prospective customer of LSI with whom Executive became aware or with whom Executive had contact while employed by or a\nbeneficial owner of the Company; or (b) intentionally recruit, solicit, induce or encourage, or attempt to recruit, solicit, induce or encourage any\nformer, current or future employee of LSI, or any person, independent contractor, agent, consultant or supplier of LSI to terminate such person's\nemployment or other relationship with, or otherwise cease to provide or reduce such person's supply of goods and/or services.\n3.\nNon-Disparagement. Executive shall not disparage or make negative statements (or induce or encourage others to disparage\nor make negative statements) about LSI or any of its present or past equity holders, directors, officers, members, partners, employees or agents.\n4.\nNon-Competition. During the period of Executive's employment with LSI and for a period of six (6) months following\nExecutive's employment if Executive's employment is terminated by LSI for "Cause", Executive shall not, directly or indirectly, whether as\nprincipal, agent, employee, director, consultant, stockholder, partner, member or in any other capacity, run, own, manage, operate, control, be\nemployed by, provide consulting services to, be an officer or director of, participate in, lend his name to, invest or have any financial or other\ninterest in or be connected in any manner with the management, ownership, operation or control of any business, venture or activity anywhere in\nNorth America and any additional geographic territories where LSI operates that is competitive with the Business; provided, however, that this\nprovision shall not prohibit Executive from acquiring, solely as a passive investment, securities of any entity listed on a national securities\nexchange or regularly traded in the over-the-counter market if Executive does not own, collectively, five percent (5%) or more of any class of\nsecurities of such entity.\nFor purposes of this Agreement, the term "Cause" shall mean any of the following: (i) indictment for, conviction of, or plea of guilty or\nno contest by the Executive to a felony, or of any criminal act; (ii) the unreasonable deliberate and material failure or refusal by the Executive to\nperform, consistent with the terms of this Agreement, his employment duties hereunder (other than as a result of PTO, sickness, disability, illness\nor injury), and the failure to rectify the same within thirty (30) days after the Company shall have given notice to the Executive identifying such\nfailure or refusal and demanding that it be rectified; (iii) the Executive's commission of any act of fraud, embezzlement, dishonesty or other\nwillful misconduct that has caused, or would reasonably be expected to cause, material injury or economic harm to the Company; (iv) an act of\ngross negligence on the part of the Executive that has caused, or would reasonably be expected to cause, material injury or economic harm to the\nCompany; (v) a deliberate or material violation of a written material Company policy; or (vi) a material breach of this Agreement (or any\nsuccessor thereto or amendment thereof) which (and only if the same shall be curable) Executive fails to cure within thirty (30) days after the\nCompany shall have given notice to the Executive identifying such breach and demanding that it be cured.\n5.\nRemedies and Enforceability. In addition to any other rights or remedies that may be available, LSI shall be entitled to\nimmediate injunctive relief (including the issuance of a temporary restraining order, preliminary and permanent injunction, if applicable) or other\nappropriate equitable relief in any court of competent jurisdiction, upon the occurrence of a breach by Executive of any of the terms of this\nAgreement. Executive acknowledges and agrees that a violation of the restrictive covenants set forth in this Agreement will cause irreparable\nharm to LSI, that the remedy at law for the same would be inadequate, and that damages would be difficult to determine, and Executive therefore\nconsents to the imposition of equitable remedies, including injunctive relief without the requirement of a bond, if LSI seeks equitable relief as a\nremedy as set forth in this Agreement.\n6.\nEnforceability. If a court of competent jurisdiction determines that any of the provisions or restrictions of this Agreement are\ninvalid or unenforceable by reason of being unreasonably vague or unreasonable as to the scope of coverage, length of time or geographical area,\nor for any other reason, then and in each such case, the remaining restrictions herein contained shall, nevertheless, remain effective, and this\nAgreement, or any portion hereof, shall be considered to be amended so as to be considered reasonable and enforceable by such court, and the\ncourt shall specifically have the right to restrict the time period or the business or geographical scope of such restrictions to any portion of the\ntime period, business or geographic areas described above to the extent the court deems such restriction to be necessary to cause the covenants to\nbe enforceable, and in such event, the covenants shall be enforced to the extent so permitted.\n7.\nSeverability. If any term or provision of this Agreement is declared illegal or unenforceable by any court of competent\njurisdiction and cannot be modified to be enforceable, such term or provision shall immediately become null and void, leaving the remainder of\nthis Agreement in full force and effect.\n8.\nEntire Agreement and Amendments. This Agreement shall constitute the entire agreement between the parties and\nsupersedes all existing agreements between them, whether oral or written, with respect to the subject matter hereof.\n9.\nSuccessors and Assigns. This Agreement shall be binding and shall inure to the benefit of the parties hereto and their\nrespective successors, assigns, heirs and legal representatives.\n10.\nWaiver. No waiver of any party hereto of a breach of any provision of this Agreement by any other party shall operate or be\nconstrued as a waiver of any subsequent breach by such other party. The failure of any party hereto to take any action by reason of such breach\nshall not deprive such party of the right to take action at any time while such breach continues.\n11.\nGoverning Law. This Agreement shall be construed in accordance with, and the rights of the parties shall be governed by,\nthe laws of the State of Ohio.\n12.\nCounterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and\nwhen taken together shall constitute one agreement.\nThe parties have caused this Agreement to be executed by the undersigned duly authorized persons as of the day and year first stated above.\nLSI INDUSTRIES INC.\nBy: /s/ Ronald S. Stowell\nRonald S. Stowell\nVice President, Chief Financial Officer\n/s/ Dennis W. Wells\nDennis W. Wells\nChief Executive Officer	EX-10.2 3 form8k022717_ex10-2.htm NON-COMPETITION, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT DATED AS\nOF FEBRUARY 24, 2017 BETWEEN LSI INDUSTRIES INC. AND DENNIS W. WELLS.\nEXHIBIT 10.2\nNON-COMPETITION, NON-SOLICITATION\nAND NON-DISCLOSURE AGREEMENT\nThis Non-Competition, Non-Solicitation and Non-Disclosure Agreement (this "Agreement") is made this 24th day of February, 2017,\nby and among LSI Industries Inc., an Ohio corporation ("LSI") and Dennis W. Wells ("Executive").\n \nWITNESSETH:\nWHEREAS, LSI and its affiliates and subsidiaries are engaged in the business of designing, engineering, manufacturing and marketing\na broad array of lighting and graphics products for commercial/industrial lighting applications and corporate visual image programs (the\n"Business")\nWHEREAS, Executive was initially employed as LSI's Chief Operating Officer and subsequently promoted to Chief Executive Officer\non October 22, 2014 and LSI's President on October 29, 2014;\nWHEREAS, the parties entered into an Employment Agreement as of October 1, 2014, which is being modified by an Amended and\nRestated Employment Agreement (the "Amended Employment Agreement") contemporaneously with this Agreement providing for, among other\nthings, increased compensation and severance benefits, and in return, LSI seeks a renewal and restatement of Executive's commitment to LSI as\ndescribed herein.\n \nNOW THEREFORE, in consideration of the mutual covenants and agreements set forth below and other good and valuable\nconsideration, the receipt of which is hereby acknowledged, LSI and the Executive hereby agree, as follows:\n1. Restrictions on Use and Disclosure of Information.\n(a) General Restrictions. Executive hereby acknowledges that, as a result of his relationship with the Company,\nincluding, but not limited to his beneficial interest in LSI and roles in the management and operation of the Business, Executive has acquired\ntrade secrets, proprietary data and confidential information related to the Business. Executive agrees that he will not, without the express written\nconsent of LSI, at any time, directly or indirectly, communicate, disclose or divulge to, any person, nor use for his own benefit or the benefit of\nany person, any of the trade secrets, proprietary data or confidential information related to the Business. Executive agrees that such trade secrets,\nproprietary data and confidential information include, but are not limited to, the following: existing and contemplated projects; joint ventures;\nresearch and development programs; work product, business, accounting and financial information and data (except that Executive may provide\nsuch information and data to his financial and legal advisors in connection with the filing of tax returns); marketing plans; pricing, methods and\nprocesses involved in developing, manufacturing, distributing and selling products and services; lists and/or identities of customers, distributors,\nsuppliers and prospective clients; information relating to inventions, modifications, discoveries, designs, developments, improvements,\nenhancements, processes, formulas, data, techniques, computer programs, frameworks, methodology, analytical approaches, works of authorship,\nknow-how, trade secrets, other intellectual property or licensing arrangements; and the identity of any persons or entities associated with or\nengaged as partners, employees, consultants, advisers and/or agents of LSI (collectively, the "Restricted Information").\n(b) Disclosure in Proceedings. Notwithstanding the foregoing, Executive may disclose Restricted Information only to\nthe extent that disclosure thereof is required by a court or other governmental agency of competent jurisdiction, provided that Executive promptly\nnotifies LSI of any such demand, order or threat (and in any event prior to any such disclosure) and reasonably cooperates with LSI in obtaining\nany available protective order or the equivalent prior to the disclosure of such Restricted Information. LSI agrees to indemnify and hold\nExecutive harmless from and against his refusal to submit to a demand to disclose such Restricted Information and all fees, costs, or expenses\nincurred by him (including reasonable attorneys fees and disbursements) in responding to or contesting such demand or cooperating with LSI in\nobtaining such protective order or equivalent, or in refusing to furnish such Restricted Information.\n2. Non-Solicitation. During the period of Executive's employment with LSI and for a period of twelve (12) months after\nemployment with LSI ends for any reason, Executive shall not, directly or indirectly: (a) intentionally or knowingly solicit, divert, take away,\naccept or attempt to divert or take away any business in which LSI was engaged immediately prior to the date hereof, from any customer of LSI\nor any active prospective customer of LSI with whom Executive became aware or with whom Executive had contact while employed by or a\nbeneficial owner of the Company; or (b) intentionally recruit, solicit, induce or encourage, or attempt to recruit, solicit, induce or encourage any\nformer, current or future employee of LSI, or any person, independent contractor, agent, consultant or supplier of LSI to terminate such person's\nemployment or other relationship with, or otherwise cease to provide or reduce such person's supply of goods and/or services.\n3. Non-Disparagement. Executive shall not disparage or make negative statements (or induce or encourage others to disparage\nor make negative statements) about LSI or any of its present or past equity holders, directors, officers, members, partners, employees or agents.\n4. Non-Competition. During the period of Executive's employment with LSI and for a period of six (6) months following\nExecutive's employment if Executive's employment is terminated by LSI for "Cause", Executive shall not, directly or indirectly, whether as\nprincipal, agent, employee, director, consultant, stockholder, partner, member or in any other capacity, run, own, manage, operate, control, be\nemployed by, provide consulting services to, be an officer or director of, participate in, lend his name to, invest or have any financial or other\ninterest in or be connected in any manner with the management, ownership, operation or control of any business, venture or activity anywhere in\nNorth America and any additional geographic territories where LSI operates that is competitive with the Business; provided, however, that this\nprovision shall not prohibit Executive from acquiring, solely as a passive investment, securities of any entity listed on a national securities\n \nexchange or regularly traded in the over-the-counter market if Executive does not own, collectively, five percent (5%) or more of any class of\nsecurities of such entity.\nFor purposes of this Agreement, the term "Cause" shall mean any of the following: (i) indictment for, conviction of, or plea of guilty or\nno contest by the Executive to a felony, or of any criminal act; (ii) the unreasonable deliberate and material failure or refusal by the Executive to\nperform, consistent with the terms of this Agreement, his employment duties hereunder (other than as a result of PTO, sickness, disability, illness\nor injury), and the failure to rectify the same within thirty (30) days after the Company shall have given notice to the Executive identifying such\nfailure or refusal and demanding that it be rectified; (iii) the Executive's commission of any act of fraud, embezzlement, dishonesty or other\nwillful misconduct that has caused, or would reasonably be expected to cause, material injury or economic harm to the Company; (iv) an act of\ngross negligence on the part of the Executive that has caused, or would reasonably be expected to cause, material injury or economic harm to the\nCompany; (v) a deliberate or material violation of a written material Company policy; or (vi) a material breach of this Agreement (or any\nsuccessor thereto or amendment thereof) which (and only if the same shall be curable) Executive fails to cure within thirty (30) days after the\nCompany shall have given notice to the Executive identifying such breach and demanding that it be cured.\n \n5. Remedies and Enforceability. In addition to any other rights or remedies that may be available, LSI shall be entitled to\nimmediate injunctive relief (including the issuance of a temporary restraining order, preliminary and permanent injunction, if applicable) or other\nappropriate equitable relief in any court of competent jurisdiction, upon the occurrence of a breach by Executive of any of the terms of this\nAgreement. Executive acknowledges and agrees that a violation of the restrictive covenants set forth in this Agreement will cause irreparable\nharm to LSI, that the remedy at law for the same would be inadequate, and that damages would be difficult to determine, and Executive therefore\nconsents to the imposition of equitable remedies, including injunctive relief without the requirement of a bond, if LSI seeks equitable relief as a\nremedy as set forth in this Agreement.\n6. Enforceability. If a court of competent jurisdiction determines that any of the provisions or restrictions of this Agreement are\ninvalid or unenforceable by reason of being unreasonably vague or unreasonable as to the scope of coverage, length of time or geographical area,\nor for any other reason, then and in each such case, the remaining restrictions herein contained shall, nevertheless, remain effective, and this\nAgreement, or any portion hereof, shall be considered to be amended so as to be considered reasonable and enforceable by such court, and the\ncourt shall specifically have the right to restrict the time period or the business or geographical scope of such restrictions to any portion of the\ntime period, business or geographic areas described above to the extent the court deems such restriction to be necessary to cause the covenants to\nbe enforceable, and in such event, the covenants shall be enforced to the extent so permitted.\n7. Severability. If any term or provision of this Agreement is declared illegal or unenforceable by any court of competent\njurisdiction and cannot be modified to be enforceable, such term or provision shall immediately become null and void, leaving the remainder of\nthis Agreement in full force and effect.\n8. Entire Agreement and Amendments. This Agreement shall constitute the entire agreement between the parties and\nsupersedes all existing agreements between them, whether oral or written, with respect to the subject matter hereof.\n9. Successors and Assigns. This Agreement shall be binding and shall inure to the benefit of the parties hereto and their\nrespective successors, assigns, heirs and legal representatives.\n10. Waiver. No waiver of any party hereto of a breach of any provision of this Agreement by any other party shall operate or be\nconstrued as a waiver of any subsequent breach by such other party. The failure of any party hereto to take any action by reason of such breach\nshall not deprive such party of the right to take action at any time while such breach continues.\n11. Governing Law. This Agreement shall be construed in accordance with, and the rights of the parties shall be governed by,\nthe laws of the State of Ohio.\n12. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and\nwhen taken together shall constitute one agreement.\nThe parties have caused this Agreement to be executed by the undersigned duly authorized persons as of the day and year first stated above.\nLSI INDUSTRIES INC.\nBy: /s/ Ronald S. Stowell\nRonald S. Stowell\nVice President, Chief Financial Officer\n/s/ Dennis W. Wells\nDennis W. Wells\nChief Executive Officer	EX-10.2 form8k022717_ex10-2.htm NON-COMPETITION, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT DATED AS\nOF FEBRUARY 24, 2017 BETWEEN LSI INDUSTRIES INC. AND DENNIS W. WELLS.\nEXHIBIT 10.2\nNON-COMPETITION, NON-SOLICITATION\nAND NON-DISCLOSURE AGREEMENT\nThis Non-Competition, Non-Solicitation and Non-Disclosure Agreement (this "Agreement") is made this 24th day of February, 2017,\nby and among LSI Industries Inc., an Ohio corporation ("LSI") and Dennis W. Wells ("Executive").\nWITNESSETH:\nWHEREAS, LSI and its affiliates and subsidiaries are engaged in the business of designing, engineering, manufacturing and marketing\na broad array of lighting and graphics products for commercial/industrial lighting applications and corporate visual image programs (the\n"Business")\nWHEREAS, Executive was initially employed as LSI's Chief Operating Officer and subsequently promoted to Chief Executive Officer\non October 22, 2014 and LSI's President on October 29, 2014;\nWHEREAS, the parties entered into an Employment Agreement as of October 1, 2014, which is being modified by an Amended and\nRestated Employment Agreement (the "Amended Employment Agreement") contemporaneously with this Agreement providing for, among other\nthings, increased compensation and severance benefits, and in return, LSI seeks a renewal and restatement of Executive's commitment to LSI as\ndescribed herein.\nNOW THEREFORE, in consideration of the mutual covenants and agreements set forth below and other good and valuable\nconsideration, the receipt of which is hereby acknowledged, LSI and the Executive hereby agree, as follows:\n1.\nRestrictions on Use and Disclosure of Information.\n(a)\nGeneral Restrictions. Executive hereby acknowledges that, as a result of his relationship with the Company,\nincluding, but not limited to his beneficial interest in LSI and roles in the management and operation of the Business, Executive has acquired\ntrade\nsecrets,\nproprietary\ndata\nand\nconfidential\ninformation\nrelated\nto\nthe\nBusiness.\nExecutive\nagrees\nthat\nhe\nwill\nnot,\nwithout\nthe\nexpress\nwritten\nconsent of LSI, at any time, directly or indirectly, communicate, disclose or divulge to, any person, nor use for his own benefit or the benefit of\nany person, any of the trade secrets, proprietary data or confidential information related to the Business. Executive agrees that such trade secrets,\nproprietary data and confidential information include, but are not limited to, the following: existing and contemplated projects; joint ventures;\nresearch and development programs; work product, business, accounting and financial information and data (except that Executive may provide\nsuch information and data to his financial and legal advisors in connection with the filing of tax returns); marketing plans; pricing, methods and\nprocesses involved in developing, manufacturing, distributing and selling products and services; lists and/or identities of customers, distributors,\nsuppliers and prospective clients; information relating to inventions, modifications, discoveries, designs, developments, improvements,\nenhancements, processes, formulas, data, techniques, computer programs, frameworks, methodology, analytical approaches, works of authorship,\nknow-how, trade secrets, other intellectual property or licensing arrangements; and the identity of any persons or entities associated with or\nengaged as partners, employees, consultants, advisers and/or agents of LSI (collectively, the "Restricted Information").\n(b)\nDisclosure in Proceedings. Notwithstanding the foregoing, Executive may disclose Restricted Information only to\nthe\nextent that disclosure thereof is required by a court or other governmental agency of competent jurisdiction, provided that Executive promptly\nnotifies LSI of any such demand, order or threat (and in any event prior to any such disclosure) and reasonably cooperates with LSI in obtaining\nany available protective order or the equivalent prior to the disclosure of such Restricted Information. LSI agrees to indemnify and hold\nExecutive harmless from and against his refusal to submit to a demand to disclose such Restricted Information and all fees, costs, or expenses\nincurred\nby\nhim\n(including\nreasonable\nattorneys\nfees\nand\ndisbursements)\nin\nresponding\nto\nor\ncontesting\nsuch\ndemand\nor\ncooperating\nwith\nLSI\nin\nobtaining such protective order or equivalent, or in refusing to furnish such Restricted Information.\n2.\nNon-Solicitation. During the period of Executive's employment with LSI and for a period of twelve (12) months after\nemployment with LSI ends for any reason, Executive shall not, directly or indirectly: (a) intentionally or knowingly solicit, divert, take away,\naccept or attempt to divert or take away any business in which LSI was engaged immediately prior to the date hereof, from any customer of LSI\nor any active prospective customer of LSI with whom Executive became aware or with whom Executive had contact while employed by or a\nbeneficial owner of the Company; or (b) intentionally recruit, solicit, induce or encourage, or attempt to recruit, solicit, induce or encourage any\nformer, current or future employee of LSI, or any person, independent contractor, agent, consultant or supplier of LSI to terminate such person's\nemployment or other relationship with, or otherwise cease to provide or reduce such person's supply of goods and/or services.\n3.\nNon-Disparagement Executive shall not disparage or make negative statements (or induce or encourage others to disparage\nor make negative statements) about LSI or any of its present or past equity holders, directors, officers, members, partners, employees or agents.\n4.\nNon-Competition. During the period of Executive's employment with LSI and for a period of six (6) months following\nExecutive's employment if Executive's employment is terminated by LSI for "Cause", Executive shall not, directly or indirectly, whether\nas\nprincipal, agent, employee, director, consultant, stockholder, partner, member or in any other capacity, run, own, manage, operate, control, be\nemployed by, provide consulting services to, be an officer or director of, participate in, lend his name to, invest or have any financial or other\ninterest in or be connected in any manner with the management, ownership, operation or control of any business, venture or activity anywhere in\nNorth America and any additional geographic territories where LSI operates that is competitive with the Business; provided, however, that this\nprovision shall not prohibit Executive from acquiring, solely as a passive investment, securities of any entity listed on a national securities\nexchange or regularly traded in the over-the-counter market if Executive does not own, collectively, five percent (5%) or more of any class\nof\nsecurities of such entity.\nFor purposes of this Agreement, the term "Cause" shall mean any of the following: (i) indictment for, conviction of, or plea of guilty or\nno contest by the Executive to a felony, or of any criminal act; (ii) the unreasonable deliberate and material failure or refusal by the Executive to\nperform, consistent with the terms of this Agreement, his employment duties hereunder (other than as a result of PTO, sickness, disability, illness\nor\ninjury),\nand\nthe\nfailure\nto\nrectify\nthe\nsame\nwithin\nthirty\n(30)\ndays\nafter\nthe\nCompany\nshall\nhave\ngiven\nnotice\nto\nthe\nExecutive\nidentifying\nsuch\nfailure or refusal and demanding that it be rectified; (iii) the Executive's commission of any act of fraud, embezzlement, dishonesty or other\nwillful misconduct that has caused, or would reasonably be expected to cause, material injury or economic harm to the Company; (iv) an act of\ngross\nnegligence on the part of the Executive that has caused, or would reasonably be expected to cause, material injury or economic harm to\nthe\nCompany; (v) a deliberate or material violation of a written material Company policy; or (vi) a material breach of this Agreement (or any\nsuccessor thereto or amendment thereof) which (and only if the same shall be curable) Executive fails to cure within thirty (30) days after the\nCompany shall have given notice to the Executive identifying such breach and demanding that it be cured.\n5.\nRemedies and Enforceability.. In addition to any other rights or remedies that may be available, LSI shall be entitled to\nimmediate\ninjunctive\nrelief\n(including\nthe\nissuance\nof\na\ntemporary\nrestraining\norder,\npreliminary\nand\npermanent\ninjunction,\nif\napplicable)\nor\nother\nappropriate equitable relief in any court of competent jurisdiction, upon the occurrence of a breach by Executive of any of the terms of this\nAgreement. Executive acknowledges and agrees that a violation of the restrictive covenants set forth in this Agreement will cause irreparable\nharm to LSI, that the remedy at law for the same would be inadequate, and that damages would be difficult to determine, and Executive therefore\nconsents to the imposition of equitable remedies, including injunctive relief without the requirement of a bond, if LSI seeks equitable relief as a\nremedy as set forth in this Agreement.\n6.\nEnforceability.. If a court of competent jurisdiction determines that any of the provisions or restrictions of this Agreement are\ninvalid or unenforceable by reason of being unreasonably vague or unreasonable as to the scope of coverage, length of time or geographical area,\nor for any other reason, then and in each such case, the remaining restrictions herein contained shall, nevertheless, remain effective, and this\nAgreement, or any portion hereof, shall be considered to be amended so as to be considered reasonable and enforceable by such court, and the\ncourt shall specifically have the right to restrict the time period or the business or geographical scope of such restrictions to any portion of the\ntime period, business or geographic areas described above to the extent the court deems such restriction to be necessary to cause the covenants\nto\nbe enforceable, and in such event, the covenants shall be enforced to the extent so permitted.\n7.\nSeverability. If any term or provision of this Agreement is declared illegal or unenforceable by any court of competent\njurisdiction and cannot be modified to be enforceable, such term or provision shall immediately become null and void, leaving the remainder of\nthis Agreement in full force and effect.\n8.\nEntire Agreement and Amendments. This Agreement shall constitute the entire agreement between the parties and\nsupersedes all existing agreements between them, whether oral or written, with respect to the subject matter hereof.\n9.\nSuccessors and Assigns. This Agreement shall be binding and shall inure to the benefit of the parties hereto and their\nrespective successors, assigns, heirs and legal representatives.\n10.\nWaiver. No waiver of any party hereto of a breach of any provision of this Agreement by any other party shall operate or be\nconstrued as a waiver of any subsequent breach by such other party. The failure of any party hereto to take any action by reason of such breach\nshall not deprive such party of the right to take action at any time while such breach continues.\n11.\nGoverning Law. This Agreement shall be construed in accordance with, and the rights of the parties shall be governed by,\nthe laws of the State of Ohio.\n12.\nCounterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and\nwhen taken together shall constitute one agreement.\nThe parties have caused this Agreement to be executed by the undersigned duly authorized persons as of the day and year first stated above.\nLSI INDUSTRIES INC.\nBy: /s/ Ronald S. Stowell\nRonald S. Stowell\nVice President, Chief Financial Officer\n/s/ Dennis W. Wells\nDennis W. Wells\nChief Executive Officer	EX-10 .2 3 form8k022717_ex10-2 .htm NON-COMPETITION, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT DATED AS\nOF FEBRUARY 24, 2017 BETWEEN LSI INDUSTRIES INC. AND DENNIS W. WELLS.\nEXHIBIT 10.2\nNON-COMPETITION, NON-SOLICITATION\nAND NON-DISCLOSURE AGREEMENT\nThis Non-Competition, Non-Solicitation and Non-Disclosure Agreement (this "Agreement") is made this 24th day of February, 2017,\nby and among LSI Industries Inc., an Ohio corporation ("LSI") and Dennis W. Wells ("Executive").\nWITNESSETH:\nWHEREAS, LSI and its affiliates and subsidiaries are engaged in the business of designing, engineering, manufacturing and marketing\na broad array of lighting and graphics products for commercial/industrial lighting applications and corporate visual image programs (the\n"Business")\nWHEREAS, Executive was initially employed as LSI's Chief Operating Officer and subsequently promoted to Chief Executive Officer\non October 22, 2014 and LSI's President on October 29, 2014;\nWHEREAS, the parties entered into an Employment Agreement as of October 1, 2014, which is being modified by an Amended and\nRestated Employment Agreement (the "Amended Employment Agreement") contemporaneously with this Agreement providing for, among other\nthings, increased compensation and severance benefits, and in return, LSI seeks a renewal and restatement of Executive's commitment to LSI as\ndescribed herein.\nNOW THEREFORE, in consideration of the mutual covenants and agreements set forth below and other good and valuable\nconsideration, the receipt of which is hereby acknowledged, LSI and the Executive hereby agree, as follows:\n1.\nRestrictions on Use and Disclosure of Information.\n(a)\nGeneral Restrictions. Executive hereby acknowledges that, as a result of his relationship with the Company,\nincluding, but not limited to his beneficial interest in LSI and roles in the management and operation of the Business, Executive has acquired\ntrade secrets, proprietary data and confidential information related to the Business. Executive agrees that he will not, without the express written\nconsent of LSI, at any time, directly or indirectly, communicate, disclose or divulge to, any person, nor use for his own benefit or the benefit of\nany person, any of the trade secrets, proprietary data or confidential information related to the Business. Executive agrees that such trade secrets,\nproprietary data and confidential information include, but are not limited to, the following: existing and contemplated projects; joint ventures;\nresearch and development programs; work product, business, accounting and financial information and data (except that Executive may provide\nsuch information and data to his financial and legal advisors in connection with the filing of tax returns); marketing plans; pricing, methods and\nprocesses involved in developing, manufacturing, distributing and selling products and services; lists and/or identities of customers, distributors,\nsuppliers and prospective clients; information relating to inventions, modifications, discoveries, designs, developments, improvements,\nenhancements, processes, formulas, data, techniques, computer programs, frameworks, methodology, analytical approaches, works of authorship,\nknow-how, trade secrets, other intellectual property or licensing arrangements; and the identity of any persons or entities associated with or\nengaged as partners, employees, consultants, advisers and/or agents of LSI (collectively, the "Restricted Information").\n(b)\nDisclosure in Proceedings. Notwithstanding the foregoing, Executive may disclose Restricted Information only to\nthe extent that disclosure thereof is required by a court or other governmental agency of competent jurisdiction, provided that Executive promptly\nnotifies LSI of any such demand, order or threat (and in any event prior to any such disclosure) and reasonably cooperates with LSI in obtaining\nany available protective order or the equivalent prior to the disclosure of such Restricted Information. LSI agrees to indemnify and hold\nExecutive harmless from and against his refusal to submit to a demand to disclose such Restricted Information and all fees, costs, or expenses\nincurred by him (including reasonable attorneys fees and disbursements) in responding to or contesting such demand or cooperating with LSI in\nobtaining such protective order or equivalent, or in refusing to furnish such Restricted Information.\n2.\nNon-Solicitation. During the period of Executive's employment with LSI and for a period of twelve (12) months after\nemployment with LSI ends for any reason, Executive shall not, directly or indirectly: (a) intentionally or knowingly solicit, divert, take away,\naccept or attempt to divert or take away any business in which LSI was engaged immediately prior to the date hereof, from any customer of LSI\nor any active prospective customer of LSI with whom Executive became aware or with whom Executive had contact while employed by or a\nbeneficial owner of the Company; or (b) intentionally recruit, solicit, induce or encourage, or attempt to recruit, solicit, induce or encourage any\nformer, current or future employee of LSI, or any person, independent contractor, agent, consultant or supplier of LSI to terminate such person's\nemployment or other relationship with, or otherwise cease to provide or reduce such person's supply of goods and/or services.\n3.\nNon-Disparagement. Executive shall not disparage or make negative statements (or induce or encourage others to disparage\nor make negative statements) about LSI or any of its present or past equity holders, directors, officers, members, partners, employees or agents.\n4.\nNon-Competition. During the period of Executive's employment with LSI and for a period of six (6) months following\nExecutive's employment if Executive's employment is terminated by LSI for "Cause", Executive shall not, directly or indirectly, whether as\nprincipal, agent, employee, director, consultant, stockholder, partner, member or in any other capacity, run, own, manage, operate, control, be\nemployed by, provide consulting services to, be an officer or director of, participate in, lend his name to, invest or have any financial or other\ninterest in or be connected in any manner with the management, ownership, operation or control of any business, venture or activity anywhere in\nNorth America and any additional geographic territories where LSI operates that is competitive with the Business; provided, however, that this\nprovision shall not prohibit Executive from acquiring, solely as a passive investment, securities of any entity listed on a national securities\nexchange or regularly traded in the over-the-counter market if Executive does not own, collectively, five percent (5%) or more of any class of\nsecurities of such entity.\nFor purposes of this Agreement, the term "Cause" shall mean any of the following: (i) indictment for, conviction of, or plea of guilty or\nno contest by the Executive to a felony, or of any criminal act; (ii) the unreasonable deliberate and material failure or refusal by the Executive to\nperform, consistent with the terms of this Agreement, his employment duties hereunder (other than as a result of PTO, sickness, disability, illness\nor injury), and the failure to rectify the same within thirty (30) days after the Company shall have given notice to the Executive identifying such\nfailure or refusal and demanding that it be rectified; (iii) the Executive's commission of any act of fraud, embezzlement, dishonesty or other\nwillful misconduct that has caused, or would reasonably be expected to cause, material injury or economic harm to the Company; (iv) an act of\ngross negligence on the part of the Executive that has caused, or would reasonably be expected to cause, material injury or economic harm to the\nCompany; (v) a deliberate or material violation of a written material Company policy; or (vi) a material breach of this Agreement (or any\nsuccessor thereto or amendment thereof) which (and only if the same shall be curable) Executive fails to cure within thirty (30) days after the\nCompany shall have given notice to the Executive identifying such breach and demanding that it be cured.\n5.\nRemedies and Enforceability. In addition to any other rights or remedies that may be available, LSI shall be entitled to\nimmediate injunctive relief (including the issuance of a temporary restraining order, preliminary and permanent injunction, if applicable) or other\nappropriate equitable relief in any court of competent jurisdiction, upon the occurrence of a breach by Executive of any of the terms of this\nAgreement. Executive acknowledges and agrees that a violation of the restrictive covenants set forth in this Agreement will cause irreparable\nharm to LSI, that the remedy at law for the same would be inadequate, and that damages would be difficult to determine, and Executive therefore\nconsents to the imposition of equitable remedies, including injunctive relief without the requirement of a bond, if LSI seeks equitable relief as a\nremedy as set forth in this Agreement.\n6.\nEnforceability. If a court of competent jurisdiction determines that any of the provisions or restrictions of this Agreement are\ninvalid or unenforceable by reason of being unreasonably vague or unreasonable as to the scope of coverage, length of time or geographical area,\nor for any other reason, then and in each such case, the remaining restrictions herein contained shall, nevertheless, remain effective, and this\nAgreement, or any portion hereof, shall be considered to be amended so as to be considered reasonable and enforceable by such court, and the\ncourt shall specifically have the right to restrict the time period or the business or geographical scope of such restrictions to any portion of the\ntime period, business or geographic areas described above to the extent the court deems such restriction to be necessary to cause the covenants to\nbe enforceable, and in such event, the covenants shall be enforced to the extent so permitted.\n7.\nSeverability. If any term or provision of this Agreement is declared illegal or unenforceable by any court of competent\njurisdiction and cannot be modified to be enforceable, such term or provision shall immediately become null and void, leaving the remainder of\nthis Agreement in full force and effect.\n8.\nEntire Agreement and Amendments. This Agreement shall constitute the entire agreement between the parties and\nsupersedes all existing agreements between them, whether oral or written, with respect to the subject matter hereof.\n9.\nSuccessors and Assigns. This Agreement shall be binding and shall inure to the benefit of the parties hereto and their\nrespective successors, assigns, heirs and legal representatives.\n10.\nWaiver. No waiver of any party hereto of a breach of any provision of this Agreement by any other party shall operate or be\nconstrued as a waiver of any subsequent breach by such other party. The failure of any party hereto to take any action by reason of such breach\nshall not deprive such party of the right to take action at any time while such breach continues.\n11.\nGoverning Law. This Agreement shall be construed in accordance with, and the rights of the parties shall be governed by,\nthe laws of the State of Ohio.\n12.\nCounterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and\nwhen taken together shall constitute one agreement.\nThe parties have caused this Agreement to be executed by the undersigned duly authorized persons as of the day and year first stated above.\nLSI INDUSTRIES INC.\nBy: /s/ Ronald S. Stowell\nRonald S. Stowell\nVice President, Chief Financial Officer\n/s/ Dennis W. Wells\nDennis W. Wells\nChief Executive Officer
+02663ab1234ba5aec4cf370839a28eff.pdf	effective_date jurisdiction party term	EX-99.(D)(3)(I) 10 d552900dex99d3i.htm EX-99.(D)(3)(I)\nExhibit (d)(3)(i)\nMutual Non-Disclosure Agreement\nIn order to protect certain Confidential Information (as defined below)\nVeramark Technologies, Inc., for itself and its subsidiaries, affiliates\nand representatives (the “Company”), and Clearlake Capital Group,\nL.P., for itself and its subsidiaries, affiliates and representatives\n(“Participant”), individually referred to as a “Party” and collectively\nreferred to as the “Parties”, agree that:\n1. Effective Date: The effective date of this non-disclosure\nagreement (“Agreement”) is May 8, 2013 (“Effective Date”).\n2. All Information: The Agreement shall apply to all Confidential\nInformation disclosed between the Parties.\n3. Definitions: Confidential information (“Confidential\nInformation”) generally shall mean all information that is\nfurnished by or on behalf of a Party to or for the other Party,\nwhether in written, oral, electronic, Web site-based, or other form,\nand any copies, reports, analyses, compilations, or studies which\ncontain, otherwise reflect or are generated from such information;\nprovided, that the information is identified as such pursuant to\nSection 8 of this Agreement. Confidential Information includes,\nbut is not limited to, customer and vendor-related data,\nservices/support information, and information about products,\narchitectures, software, strategies, plans, techniques, drawings,\ndesigns, specifications, technical or know-how data, research and\ndevelopment, ideas, trade secrets, inventions, and patent\ndisclosures that may be disclosed between the Parties.\n4. Disclosure: Without the prior written consent of the other Party,\neach Party agrees not to issue or release any articles, advertising,\npublicity or other communication relating to any Confidential\nInformation of the other Party. Additionally, each Party agrees not\nto disclose that a meeting or discussions are taking or have taken\nplace between the Parties, that Confidential Information has been\nmade available, or that a transaction involving the Parties is under\nconsideration or mentioning or implying the name of the other\nParty or the status of discussions, except as may be required by\nlaw and then only after providing the other Party with an\nopportunity to review and comment thereon. Participant agrees\nthat any communication regarding a possible transaction will be\nsolely with designated officers, employees or representatives of\nthe Company, including America’s Growth Capital, and further\nagrees not to discuss any possible transaction with any employee,\nshareholder, commercial partner, or customer of the Company\nexcept as authorized by an officer of the Company or America’s\nGrowth Capital.\n5. Termination: This Agreement shall remain in effect until it is\nterminated by either Party with thirty (30) days prior written\nnotice. The terms and conditions of this Agreement shall survive\nany such termination with respect to Confidential Information\nthat is disclosed prior to the effective date of termination. The\nParties receiving\nConfidential Information (each, a “Recipient”) from the other\nParties disclosing Confidential Information (each, a “Discloser”)\nwill use the Confidential Information solely for the purpose of\nevaluating or undertaking a possible mutually-agreeable financial\nor other transaction with or regarding the other Party.\n6. Term: Unless the Parties otherwise agree in writing, a Recipient’s\nduty to protect Confidential Information expires two (2) years\nfrom the date of disclosure. A Recipient, upon Discloser’s written\nrequest, will promptly return or destroy, at Recipient’s election\nand with written certification to Company, all Confidential\nInformation received from the Discloser, together with all copies,\nor certify in writing that all such Confidential Information and\ncopies thereof have been destroyed.\n7. Degree of Care: A Recipient will use the same degree of care,\nbut no less than a reasonable degree of care, as the Recipient uses\nwith respect to its own similar information to protect the\nConfidential Information. Recipient shall prevent (a) any use of\nConfidential Information not authorized in this Agreement,\n(b) dissemination of Confidential Information to any employee of\nRecipient without a need to know, (c) communication of\nConfidential Information to any third party or (d) publication of\nConfidential Information.\n8. Identification of Confidential Information: A Recipient will\nhave a duty to protect Confidential Information (a) if it is marked\nor accompanied by documents clearly and conspicuously\ndesignating them as “confidential” or the equivalent; or (b) if it is\nidentified by the Discloser as confidential before, during or\npromptly after the presentation or communication; or (c) if it\nshould reasonably be understood as confidential from the nature\nof the information and/or circumstances under which it is\ndisclosed.\n9. Other Transactions: Notwithstanding any provision of this\nagreement to the contrary, this agreement shall not limit, restrict\nor impair the ability of either Party or its Representatives to\nengage in transactions with respect to securities, instruments and\ninterests of the other party or any other person or entity, so long as\nsuch transactions do not violate applicable United States\nsecurities laws, provided, however, from and after the date of this\nagreement and until four (4) months after the date first written\nabove, you will not in any manner, directly or indirectly, without\nthe prior written consent of the Company’s Board of Directors:\n(i) acquire, offer to acquire or agree to acquire, directly or\nindirectly, by purchase or otherwise, more than 2% of any class of\nsecurities or direct or Indirect rights to acquire more than 2% of\nany class of securities of the Company or any subsidiary, or of\nany successor to the Company, or more than 2% of any assets of\nthe Company, subsidiary or division thereof or of any such\nsuccessor; (ii) make, or in any way participate in, directly or\nindirectly, any “solicitation” of “proxies” or consents to vote (as\nsuch terms are used in the\nrules of the Securities and Exchange Commission), or seek to\nadvise or influence any person with respect to the voting of any\nsecurities of the Company, (iii) make any public announcement\nwith respect to, or submit a proposal for, or offer of (with or\nwithout conditions) any extraordinary transaction involving the\nCompany or any of its securities or assets, including, without\nlimitation, any merger, recapitalization, restructuring, liquidation,\ndissolution, tender offer, exchange offer, reorganization or\nbusiness combination; (iv) form, join or in any way participate in\na “group” (as defined In Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended) with respect to any securities\nof the Company; (v) otherwise act, alone or in concert with\nothers, to seek control or influence the management, Board of\nDirectors or policies of the Company; or (vi) enter into any\ndiscussions, negotiations or arrangements or advise, assist or\nencourage any other persons in connection with any of the\nforegoing, except in consideration of a transaction contemplated\nby this Agreement.\n10. Public Information: This Agreement imposes no obligation\nupon a Recipient with respect to Confidential Information which\n(a) the Recipient can demonstrate was already in its possession\nbefore receipt from the Discloser; (b) is or becomes publicly\navailable through no fault of the Recipient; (c) is rightfully\nreceived by the Recipient from a third party not known to be\nbound by a duty of confidentiality; or (d) is independently\ndeveloped by the Recipient without a breach of this Agreement. If\na Recipient is required by a government body or court of law to\ndisclose Confidential Information, the Recipient agrees to give\nthe Discloser reasonable advance notice, if legally permissible, so\nthat Discloser may contest the disclosure or seek a protective\norder at its sole expense, but Recipient may otherwise disclose\nConfidential Information to the government body or court of law\nwithout liability hereunder; provided it will limit the disclosure to\nonly that information necessary to comply with such requirement\nor law.\n11. Right to Disclose: EACH DISCLOSER WARRANTS THAT\nIT HAS THE RIGHT TO DISCLOSE ITS CONFIDENTIAL\nINFORMATION. NO OTHER WARRANTIES ARE MADE\nAND NO RESPONSIBILITY OR LIABILITY IS OR WILL\nBE ACCEPTED BY EITHER PARTY IN RELATION TO\nOR AS TO THE ACCURACY OR COMPLETENESS OF\nTHE CONFIDENTIAL INFORMATION. ALL\nCONFIDENTIAL INFORMATION IS PROVIDED “AS IS”.\n12. No Obligation: This Agreement imposes no obligation on a Party\nto exchange Confidential Information or to enter into any\ntransaction.\n13. Export Compliance: A Recipient will adhere to all applicable\nlaws and regulations of the U.S. Export Administration and will\nnot export or re-export any technical data or products received\nfrom a Discloser, or the\ndirect product of such technical data, to any proscribed country\nlisted in the U.S . Export Administration regulations, or foreign\nnational thereof, unless properly authorized by the U.S.\nGovernment.\n14. Intellectual Property: No Party acquires any intellectual\nproperty rights under this Agreement except the limited rights\nnecessary to carry out the purposes as set forth in this Agreement.\nSubject to the obligations of this Agreement, no Party will be\nprecluded from independently developing technology or pursuing\nbusiness opportunities similar to those covered by this\nAgreement. Each Party retains sole discretion to assign or\nreassign the job responsibilities of its employees.\n15. Non-Solicitation: For one year from the Effective Date of this\nAgreement, Participant agrees not to, either directly or through\nothers, solicit or attempt to solicit any employee of the Company\nto terminate his, her or its relationship with the Company;\nprovided, that the foregoing will not prohibit Participant from\nhiring a Company employee who (i) applies for a position with\nParticipant or its affiliates without any specific solicitation or as a\nresult of a general solicitation via advertisements for employment\nor searches not specifically directed towards employees of the\nCompany; (ii) is hired by a portfolio company of Participant\nwithout the knowledge of, direction or encouragement of\nParticipant; or (iii) terminated by the Company.\n16. Damages: Each Party acknowledges that damages for breach of\nthis Agreement may be irreparable; therefore, the injured Party\nmay be entitled to seek equitable relief, including injunction and\npreliminary injunction, in addition to all other remedies available\nat law or in equity.\n17. Enforcement: The obligations and duties imposed by this\nAgreement with respect to any Confidential Information may be\nenforced by the Discloser of such Confidential Information\nagainst any and all Recipients of such Confidential Information.\n18. Jurisdiction: This Agreement is made under, and will be\nconstrued according to, the laws of the State of Delaware.\n19. Severability: If any provision of this Agreement is found to be\ninvalid or unenforceable in whole or in part, the Parties agree that\nsuch provision shall be reformed and construed to the maximum\nextent enforceable, and that the remaining provisions shall remain\nvalid and enforceable to the maximum extent compatible with\nlaw.\n20. Consent: This Agreement does not create any agency or\npartnership relationship. This Agreement will not be assignable or\ntransferable without the prior written consent of the other Party.\nAll additions or modifications to this Agreement must be made in\nwriting and must be signed by all Parties. Each Party agrees that\nfacsimile signatures will have the same legal effect as originals\nsignatures and may be used as evidence of execution.\nVeramark Technologies, Inc.\nClearlake Capital Group, L.P.\nBy:\n/s/ Anthony C. Mazzullo\nBy:\n/s/ Behdad Eghbali\nName:\nAnthony C. Mazzullo\nName:\nBehdad Eghbali\nTitle:\nPresident, Chief Executive Officer\nTitle:\nManager\nAddress:\n1565 Jefferson Road Suite 120\nAddress:\n233 Wilshire Boulevard, Suite 800\nCity, State, Zip: Rochester, NY 14623\nCity, State, Zip: Santa Monica, California 90401\nDate:\nMay 8, 2013\nDate:\nMay 8, 2013\n21. Headings: The headings in this Agreement are included for\nconvenience only and shall neither affect the construction or\ninterpretation of any provision of this Agreement nor affect any of\nthe rights or obligations of the parties to this Agreement.\n22. No Obligation. Nothing in this Agreement or otherwise obligates\nthe Company to share any information to the Participant or to\nenter into any discussions or negotiations with respect to any\ntransaction(s). The Company shall not be bound to any\ntransaction with the Participant unless and until a definitive\nagreement is executed and delivered by the parties. For avoidance\nof doubt, Participant also shall be under no obligation to affect an\ninvestment or enter into a transaction with the Company. The\nCompany acknowledges that, as a private equity investor,\nParticipant considers, makes, and has made investments in a\nvariety of markets and that Participant’s participation in the\nevaluation of the Company for an investment may enhance the\nunderstanding of Participant, its affiliates and its and their\nrepresentatives of the markets in\nwhich Participant, its affiliates and its and their representatives\nmay now, or in the future, compete as a principal investor or\noperator and that such further understanding will not, in and of\nitself, be considered a violation of this Agreement, provided that\nParticipant does not breach this Agreement. In addition, Company\nacknowledges that Participant, its affiliates (including its portfolio\ncompanies) and its and their representatives are or may become\ninvolved in businesses that are similar or identical to Company’s\nbusiness, and Company agrees that Participant, its affiliates\n(including its portfolio companies) and its and their\nrepresentatives shall not be restricted or prohibited from operating\ntheir respective businesses in the ordinary course, including those\nbusinesses that compete with Company’s business, or from\nmaking any investments in any such businesses, provided\nParticipant does not breach this Agreement.	EX-99.(D)(3)(I) 10 d552900dex99d3i.htm EX-99.(D)(3)(I) Exhibit (d)(3)(i)\nMutual Non-Disclosure Agreement In order to protect certain Confidential Information (as defined below)\nVeramark Technologies, Inc., for itself and its subsidiaries, affiliates\nand representatives (the “Company”), and Clearlake Capital Group,\nL.P,, for itself and its subsidiaries, affiliates and representatives\n(“Participant”), individually referred to as a “Party” and collectively\nreferred to as the “Parties”, agree that:\n1. Effective Date: The effective date of this non-disclosure\nagreement (“Agreement”) is May 8, 2013 (“Effective Date”).\n2. All Information: The Agreement shall apply to all Confidential\nInformation disclosed between the Parties.\n3. Definitions: Confidential information (“Confidential\nInformation”) generally shall mean all information that is\nfurnished by or on behalf of a Party to or for the other Party,\nwhether in written, oral, electronic, Web site-based, or other form,\nand any copies, reports, analyses, compilations, or studies which\ncontain, otherwise reflect or are generated from such information;\nprovided, that the information is identified as such pursuant to\nSection 8 of this Agreement. Confidential Information includes,\nbut is not limited to, customer and vendor-related data,\nservices/support information, and information about products,\narchitectures, software, strategies, plans, techniques, drawings,\ndesigns, specifications, technical or know-how data, research and\ndevelopment, ideas, trade secrets, inventions, and patent\ndisclosures that may be disclosed between the Parties.\n4. Disclosure: Without the prior written consent of the other Party,\neach Party agrees not to issue or release any articles, advertising,\npublicity or other communication relating to any Confidential\nInformation of the other Party. Additionally, each Party agrees not\nto disclose that a meeting or discussions are taking or have taken\nplace between the Parties, that Confidential Information has been\nmade available, or that a transaction involving the Parties is under\nconsideration or mentioning or implying the name of the other\nParty or the status of discussions, except as may be required by\nlaw and then only after providing the other Party with an\nopportunity to review and comment thereon. Participant agrees\nthat any communication regarding a possible transaction will be\nsolely with designated officers, employees or representatives of\nthe Company, including America’s Growth Capital, and further\nagrees not to discuss any possible transaction with any employee,\nshareholder, commercial partner, or customer of the Company\nexcept as authorized by an officer of the Company or America’s\nGrowth Capital.\n5. Termination: This Agreement shall remain in effect until it is\nterminated by either Party with thirty (30) days prior written\nnotice. The terms and conditions of this Agreement shall survive\nany such termination with respect to Confidential Information\nthat is disclosed prior to the effective date of termination. The\nParties receiving\nConfidential Information (each, a “Recipient”) from the other\nParties disclosing Confidential Information (each, a “Discloser”)\nwill use the Confidential Information solely for the purpose of\nevaluating or undertaking a possible mutually-agreeable financial\nor other transaction with or regarding the other Party.\nTerm: Unless the Parties otherwise agree in writing, a Recipient’s\nduty to protect Confidential Information expires two (2) years\nfrom the date of disclosure. A Recipient, upon Discloser’s written\nrequest, will promptly return or destroy, at Recipient’s election\nand with written certification to Company, all Confidential\nInformation received from the Discloser, together with all copies,\nor certify in writing that all such Confidential Information and\ncopies thereof have been destroyed.\nDegree of Care: A Recipient will use the same degree of care,\nbut no less than a reasonable degree of care, as the Recipient uses\nwith respect to its own similar information to protect the\nConfidential Information. Recipient shall prevent (a) any use of\nConfidential Information not authorized in this Agreement,\n(b) dissemination of Confidential Information to any employee of\nRecipient without a need to know, (c) communication of\nConfidential Information to any third party or (d) publication of\nConfidential Information.\nIdentification of Confidential Information: A Recipient will\nhave a duty to protect Confidential Information (a) if it is marked\nor accompanied by documents clearly and conspicuously\ndesignating them as “confidential” or the equivalent; or (b) if it is\nidentified by the Discloser as confidential before, during or\npromptly after the presentation or communication; or (c) if it\nshould reasonably be understood as confidential from the nature\nof the information and/or circumstances under which it is\ndisclosed.\nOther Transactions: Notwithstanding any provision of this\nagreement to the contrary, this agreement shall not limit, restrict\nor impair the ability of either Party or its Representatives to\nengage in transactions with respect to securities, instruments and\ninterests of the other party or any other person or entity, so long as\nsuch transactions do not violate applicable United States\nsecurities laws, provided, however, from and after the date of this\nagreement and until four (4) months after the date first written\nabove, you will not in any manner, directly or indirectly, without\nthe prior written consent of the Company’s Board of Directors:\n(i) acquire, offer to acquire or agree to acquire, directly or\nindirectly, by purchase or otherwise, more than 2% of any class of\nsecurities or direct or Indirect rights to acquire more than 2% of\nany class of securities of the Company or any subsidiary, or of\nany successor to the Company, or more than 2% of any assets of\nthe Company, subsidiary or division thereof or of any such\nsuccessor; (ii) make, or in any way participate in, directly or\nindirectly, any “solicitation” of “proxies” or consents to vote (as\nsuch terms are used in the\n10. 11. 12. 13. rules of the Securities and Exchange Commission), or seek to\nadvise or influence any person with respect to the voting of any\nsecurities of the Company, (iii) make any public announcement\nwith respect to, or submit a proposal for, or offer of (with or\nwithout conditions) any extraordinary transaction involving the 14 Company or any of its securities or assets, including, without\nlimitation, any merger, recapitalization, restructuring, liquidation,\ndissolution, tender offer, exchange offer, reorganization or\nbusiness combination; (iv) form, join or in any way participate in\na “group” (as defined In Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended) with respect to any securities\nof the Company; (v) otherwise act, alone or in concert with\nothers, to seek control or influence the management, Board of\nDirectors or policies of the Company; or (vi) enter into any 15. discussions, negotiations or arrangements or advise, assist or\nencourage any other persons in connection with any of the\nforegoing, except in consideration of a transaction contemplated\nby this Agreement.\nPublic Information: This Agreement imposes no obligation\nupon a Recipient with respect to Confidential Information which\n(a) the Recipient can demonstrate was already in its possession\nbefore receipt from the Discloser; (b) is or becomes publicly\navailable through no fault of the Recipient; (c) is rightfully\nreceived by the Recipient from a third party not known to be\nbound by a duty of confidentiality; or (d) is independently\ndeveloped by the Recipient without a breach of this Agreement. If 16. a Recipient is required by a government body or court of law to\ndisclose Confidential Information, the Recipient agrees to give\nthe Discloser reasonable advance notice, if legally permissible, so\nthat Discloser may contest the disclosure or seek a protective\norder at its sole expense, but Recipient may otherwise disclose 17. Confidential Information to the government body or court of law\nwithout liability hereunder; provided it will limit the disclosure to\nonly that information necessary to comply with such requirement\nor law.\nRight to Disclose: EACH DISCLOSER WARRANTS THAT\nIT HAS THE RIGHT TO DISCLOSE ITS CONFIDENTIAL\nINFORMATION. NO OTHER WARRANTIES ARE MADE\nAND NO RESPONSIBILITY OR LIABILITY IS OR WILL\nBE ACCEPTED BY EITHER PARTY IN RELATION TO\nOR AS TO THE ACCURACY OR COMPLETENESS OF\nTHE CONFIDENTIAL INFORMATION. ALL\nCONFIDENTIAL INFORMATION IS PROVIDED “AS IS”.\n18. 19. 20. No Obligation: This Agreement imposes no obligation on a Party\nto exchange Confidential Information or to enter into any\ntransaction.\nExport Compliance: A Recipient will adhere to all applicable\nlaws and regulations of the U.S. Export Administration and will\nnot export or re-export any technical data or products received\nfrom a Discloser, or the\ndirect product of such technical data, to any proscribed country\nlisted in the U.S. Export Administration regulations, or foreign\nnational thereof, unless properly authorized by the U.S.\nGovernment.\nIntellectual Property: No Party acquires any intellectual\nproperty rights under this Agreement except the limited rights\nnecessary to carry out the purposes as set forth in this Agreement.\nSubject to the obligations of this Agreement, no Party will be\nprecluded from independently developing technology or pursuing\nbusiness opportunities similar to those covered by this\nAgreement. Each Party retains sole discretion to assign or\nreassign the job responsibilities of its employees.\nNon-Solicitation: For one year from the Effective Date of this\nAgreement, Participant agrees not to, either directly or through\nothers, solicit or attempt to solicit any employee of the Company\nto terminate his, her or its relationship with the Company;\nprovided, that the foregoing will not prohibit Participant from\nhiring a Company employee who (i) applies for a position with\nParticipant or its affiliates without any specific solicitation or as a\nresult of a general solicitation via advertisements for employment\nor searches not specifically directed towards employees of the\nCompany; (ii) is hired by a portfolio company of Participant\nwithout the knowledge of, direction or encouragement of\nParticipant; or (iii) terminated by the Company.\nDamages: Each Party acknowledges that damages for breach of\nthis Agreement may be irreparable; therefore, the injured Party\nmay be entitled to seek equitable relief, including injunction and\npreliminary injunction, in addition to all other remedies available\nat law or in equity.\nEnforcement: The obligations and duties imposed by this\nAgreement with respect to any Confidential Information may be\nenforced by the Discloser of such Confidential Information\nagainst any and all Recipients of such Confidential Information.\nJurisdiction: This Agreement is made under, and will be\nconstrued according to, the laws of the State of Delaware.\nSeverability: If any provision of this Agreement is found to be\ninvalid or unenforceable in whole or in part, the Parties agree that\nsuch provision shall be reformed and construed to the maximum\nextent enforceable, and that the remaining provisions shall remain\nvalid and enforceable to the maximum extent compatible with\nlaw.\nConsent: This Agreement does not create any agency or\npartnership relationship. This Agreement will not be assignable or\ntransferable without the prior written consent of the other Party.\nAll additions or modifications to this Agreement must be made in\nwriting and must be signed by all Parties. Each Party agrees that\nfacsimile signatures will have the same legal effect as originals\nsignatures and may be used as evidence of execution.\n21.\n22.\nHeadings: The headings in this Agreement are included for\nconvenience only and shall neither affect the construction or\ninterpretation of any provision of this Agreement nor affect any of\nthe rights or obligations of the parties to this Agreement.\nNo Obligation. Nothing in this Agreement or otherwise obligates\nthe Company to share any information to the Participant or to\nenter into any discussions or negotiations with respect to any\ntransaction(s). The Company shall not be bound to any\ntransaction with the Participant unless and until a definitive\nagreement is executed and delivered by the parties. For avoidance\nof doubt, Participant also shall be under no obligation to affect an\ninvestment or enter into a transaction with the Company. The\nCompany acknowledges that, as a private equity investor,\nParticipant considers, makes, and has made investments in a\nvariety of markets and that Participant’s participation in the\nevaluation of the Company for an investment may enhance the\nunderstanding of Participant, its affiliates and its and their\nrepresentatives of the markets in\nVeramark Technologies, Inc. By: /s/ Anthony C. Mazzullo\nName: Anthony C. Mazzullo\nTitle: President, Chief Executive Officer\nAddress: 1565 Jefferson Road Suite 120\nCity, State, Zip: Rochester, NY 14623\nDate: May 8, 2013\nwhich Participant, its affiliates and its and their representatives\nmay now, or in the future, compete as a principal investor or\noperator and that such further understanding will not, in and of\nitself, be considered a violation of this Agreement, provided that\nParticipant does not breach this Agreement. In addition, Company\nacknowledges that Participant, its affiliates (including its portfolio\ncompanies) and its and their representatives are or may become\ninvolved in businesses that are similar or identical to Company’s\nbusiness, and Company agrees that Participant, its affiliates\n(including its portfolio companies) and its and their\nrepresentatives shall not be restricted or prohibited from operating\ntheir respective businesses in the ordinary course, including those\nbusinesses that compete with Company’s business, or from\nmaking any investments in any such businesses, provided\nParticipant does not breach this Agreement.\nClearlake Capital Group, L.P.\nBy: /s/ Behdad Eghbali\nName: Behdad Eghbali\nTitle: Manager\nAddress: 233 Wilshire Boulevard, Suite 800\nCity, State, Zip: Santa Monica, California 90401\nDate: May 8, 2013	EX-99.(D)(3)(I) 10 d552900dex99d3i.htm EX-99.(D)(3)(I)\nExhibit (d)(3)(i)\nMutual Non-Disclosure Agreement\nIn order to protect certain Confidential Information (as defined below)\nConfidential Information (each, a "Recipient") from the other\nVeramark Technologies, Inc., for itself and its subsidiaries, affiliates\nParties disclosing Confidential Information (each, a "Discloser")\nand representatives (the "Company"), and Clearlake Capital Group,\nwill use the Confidential Information solely for the purpose of\nL.P., for itself and its subsidiaries, affiliates and representatives\nevaluating or undertaking a possible mutually-agreeable financial\n("Participant"), individually referred to as a "Party" and collectively\nor other transaction with or regarding the other Party.\nreferred to as the "Parties", agree that:\n6.\nTerm: Unless the Parties otherwise agree in writing, a Recipient's\n1.\nEffective Date: The effective date of this non-disclosure\nduty to protect Confidential Information expires two (2) years\nagreement ("Agreement") is May 8, 2013 ("Effective Date").\nfrom the date of disclosure. A Recipient, upon Discloser's written\n2.\nAll Information: The Agreement shall apply to all Confidential\nrequest, will promptly return or destroy, at Recipient's election\nInformation disclosed between the Parties.\nand with written certification to Company, all Confidentia\nInformation received from the Discloser, together with all copies,\n3.\nDefinitions: Confidential information ("Confidential\nor certify in writing that all such Confidential Information and\nInformation") generally shall mean all information that is\ncopies thereof have been destroyed.\nfurnished by or on behalf of a Party to or for the other Party,\nwhether in written, oral, electronic, Web site-based, or other form,\n7.\nDegree of Care: A Recipient will use the same degree of care,\nand any copies, reports, analyses, compilations, or studies which\nbut no less than a reasonable degree of care, as the Recipient uses\ncontain, otherwise reflect or are generated from such information;\nwith respect to its own similar information to protect the\nprovided, that the information is identified as such pursuant to\nConfidential Information. Recipient shall prevent (a) any use of\nSection 8 of this Agreement. Confidential Information includes,\nConfidential Information not authorized in this Agreement,\nbut is not limited to, customer and vendor-related data,\n(b) dissemination of Confidential Information to any employee of\nservices/support information, and information about products,\nRecipient without a need to know, (c) communication of\narchitectures, software, strategies, plans, techniques, drawings,\nConfidential Information to any third party or (d) publication of\ndesigns, specifications, technical or know-how data, research and\nConfidentia Information.\ndevelopment, ideas, trade secrets, inventions, and patent\n8.\nIdentification of Confidential Information: A Recipient will\ndisclosures that may be disclosed between the Parties.\nhave a duty to protect Confidential Information (a) if it is marked\n4.\nDisclosure: Without the prior written consent of the other Party,\nor accompanied by documents clearly and conspicuously\neach Party agrees not to issue or release any articles, advertising,\ndesignating them as "confidential" or the equivalent; or (b) if it is\npublicity or other communication relating to any Confidential\nidentified by the Discloser as confidential before, during or\nInformation of the other Party. Additionally, each Party agrees not\npromptly after the presentation or communication; or (c) if it\nto disclose that a meeting or discussions are taking or have taken\nshould reasonably be understood as confidential from the nature\nplace between the Parties, that Confidential Information has been\nof the information and/or circumstances under which it is\nmade available, or that a transaction involving the Parties is under\ndisclosed.\nconsideration or mentioning or implying the name of the other\n9.\nOther Transactions: Notwithstanding any provision of this\nParty or the status of discussions, except as may be required by\nagreement to the contrary, this agreement shall not limit, restrict\nlaw and then only after providing the other Party with an\nor impair the ability of either Party or its Representatives to\nopportunity to review and comment thereon. Participant agrees\nengage in transactions with respect to securities, instruments and\nthat any communication regarding a possible transaction will be\ninterests of the other party or any other person or entity, so long as\nsolely with designated officers, employees or representatives of\nsuch transactions do not violate applicable United States\nthe Company, including America's Growth Capital, and further\nsecurities laws, provided, however, from and after the date of this\nagrees not to discuss any possible transaction with any employee,\nagreement and until four (4) months after the date first written\nshareholder, commercial partner, or customer of the Company\nabove, you will not in any manner, directly or indirectly, without\nexcept as authorized by an officer of the Company or America's\nthe prior written consent of the Company's Board of Directors:\nGrowth Capital.\n(i) acquire, offer to acquire or agree to acquire, directly or\n5.\nTermination: This Agreement shall remain in effect until it is\nindirectly, by purchase or otherwise, more than 2% of any class of\nterminated by either Party with thirty (30) days prior written\nsecurities or direct or Indirect rights to acquire more than 2% of\nnotice. The terms and conditions of this Agreement shall survive\nany class of securities of the Company or any subsidiary, or of\nany such termination with respect to Confidential Information\nany successor to the Company, or more than 2% of any assets of\nthat is disclosed prior to the effective date of termination. The\nthe Company, subsidiary or division thereof or of any such\nParties receiving\nsuccessor; (ii) make, or in any way participate in, directly or\nindirectly, any "solicitation" of "proxies" or consents to vote (as\nsuch terms are used in the\nrules of the Securities and Exchange Commission), or seek to\ndirect product of such technical data, to any proscribed country\nadvise or influence any person with respect to the voting of any\nlisted in the U.S. Export Administration regulations, or foreign\nsecurities of the Company, (iii) make any public announcement\nnational thereof, unless properly authorized by the U.S.\nwith respect to, or submit a proposal for, or offer of (with or\nGovernment.\nwithout conditions) any extraordinary transaction involving the\n14. Intellectual Property: No Party acquires any intellectual\nCompany or any of its securities or assets, including, without\nproperty rights under this Agreement except the limited rights\nlimitation, any merger, recapitalization, restructuring, liquidation,\ndissolution, tender offer, exchange offer, reorganization or\nnecessary to carry out the purposes as set forth in this Agreement.\nbusiness combination; (iv) form, join or in any way participate in\nSubject to the obligations of this Agreement, no Party will be\na "group" (as defined In Section 13(d)(3) of the Securities\nprecluded from independently developing technology or pursuing\nbusiness opportunities similar to those covered by this\nExchange Act of 1934, as amended) with respect to any securities\nof the Company; (v) otherwise act, alone or in concert with\nAgreement. Each Party retains sole discretion to assign or\nothers, to seek control or influence the management, Board of\nreassign the job responsibilities of its employees.\nDirectors or policies of the Company; or (vi) enter into any\n15. Non-Solicitation: For one year from the Effective Date of this\ndiscussions, negotiations or arrangements or advise, assist or\nAgreement, Participant agrees not to, either directly or through\nencourage any other persons in connection with any of the\nothers, solicit or attempt to solicit any employee of the Company\nforegoing, except in consideration of a transaction contemplated\nto terminate his, her or its relationship with the Company;\nby this Agreement.\nprovided, that the foregoing will not prohibit Participant from\nhiring a Company employee who (i) applies for a position with\n10. Public Information: This Agreement imposes no obligation\nupon a Recipient with respect to Confidential Information which\nParticipant or its affiliates without any specific solicitation or as a\nresult of a general solicitation via advertisements for employment\n(a) the Recipient can demonstrate was already in its possession\nbefore receipt from the Discloser; (b) is or becomes publicly\nor searches not specifically directed towards employees of the\nCompany; (ii) is hired by a portfolio company of Participant\navailable through no fault of the Recipient; (c) is rightfully\nwithout the knowledge of, direction or encouragement of\nreceived by the Recipient from a third party not known to be\nParticipant; or (iii) terminated by the Company.\nbound by a duty of confidentiality; or (d) is independently\ndeveloped by the Recipient without a breach of this Agreement. If\n16. Damages: Each Party acknowledges that damages for breach of\na Recipient is required by a government body or court of law to\nthis Agreement may be irreparable; therefore, the injured Party\ndisclose Confidentia Information, the Recipient agrees to give\nmay be entitled to seek equitable relief, including injunction and\nthe Discloser reasonable advance notice, if legally permissible, so\npreliminary injunction, in addition to all other remedies available\nthat Discloser may contest the disclosure or seek a protective\nat law or in equity.\norder at its sole expense, but Recipient may otherwise disclose\n17. Enforcement: The obligations and duties imposed by this\nConfidential Information to the government body or court of law\nAgreement with respect to any Confidential Information may be\nwithout liability hereunder; provided it will limit the disclosure to\nenforced by the Discloser of such Confidential Information\nonly that information necessary to comply with such requirement\nagainst any and all Recipients of such Confidential Information.\nor law.\n18. Jurisdiction: This Agreement is made under, and will be\n11. Right to Disclose: EACH DISCLOSER WARRANTS THAT\nconstrued according to, the laws of the State of Delaware.\nIT HAS THE RIGHT TO DISCLOSE ITS CONFIDENTIAL\nINFORMATION. NO OTHER WARRANTIES ARE MADE\n19. Severability: If any provision of this Agreement is found to be\nAND NO RESPONSIBILITY OR LIABILITY IS OR WILL\ninvalid or unenforceable in whole or in part, the Parties agree that\nBE ACCEPTED BY EITHER PARTY IN RELATION TO\nsuch provision shall be reformed and construed to the maximum\nOR AS TO THE ACCURACY OR COMPLETENESS OF\nextent enforceable, and that the remaining provisions shall remain\nTHE CONFIDENTIAL INFORMATION. ALL\nvalid and enforceable to the maximum extent compatible with\nCONFIDENTIAL INFORMATION IS PROVIDED "AS IS".\nlaw.\n12. No Obligation: This Agreement imposes no obligation on a Party\n20. Consent: This Agreement does not create any agency or\nto exchange Confidential Information or to enter into any\npartnership relationship. This Agreement will not be assignable or\ntransaction.\ntransferable without the prior written consent of the other Party.\nAll additions or modifications to this Agreement must be made in\n13. Export Compliance: A Recipient will adhere to all applicable\nwriting and must be signed by all Parties. Each Party agrees that\nlaws and regulations of the U.S. Export Administration and will\nfacsimile signatures will have the same legal effect as originals\nnot export or re-export any technical data or products received\nsignatures and may be used as evidence of execution.\nfrom a Discloser, or the\n21. Headings: The headings in this Agreement are included for\nwhich Participant, its affiliates and its and their representatives\nconvenience only and shall neither affect the construction or\nmay now, or in the future, compete as a principal investor or\ninterpretation of any provision of this Agreement nor affect any of\noperator and that such further understanding will not, in and of\nthe rights or obligations of the parties to this Agreement.\nitself, be considered a violation of this Agreement, provided that\n22. No Obligation. Nothing in this Agreement or otherwise obligates\nParticipant does not breach this Agreement. In addition, Company\nthe Company to share any information to the Participant or to\nacknowledges that Participant, its affiliates (including its portfolio\nenter into any discussions or negotiations with respect to any\ncompanies) and its and their representatives are or may become\ntransaction(s) The Company shall not be bound to any\ninvolved in businesses that are similar or identical to Company's\ntransaction with the Participant unless and until a definitive\nbusiness, and Company agrees that Participant, its affiliates\nagreement is executed and delivered by the parties. For avoidance\n(including its portfolio companies) and its and their\nof doubt, Participant also shall be under no obligation to affect an\nrepresentatives shall not be restricted or prohibited from operating\ninvestment or enter into a transaction with the Company. The\ntheir respective businesses in the ordinary course, including those\nCompany acknowledges that, as a private equity investor,\nbusinesses that compete with Company's business, or from\nParticipant considers, makes, and has made investments in a\nmaking any investments in any such businesses, provided\nvariety of markets and that Participant's participation in the\nParticipant does not breach this Agreement.\nevaluation of the Company for an investment may enhance the\nunderstanding of Participant, its affiliates and its and their\nrepresentatives of the markets in\nVeramark Technologies, Inc.\nClearlake Capital Group, L.P.\nBy:\n/s/ Anthony C. Mazzullo\nBy:\n/s/ Behdad Eghbali\nName:\nAnthony C. Mazzullo\nName:\nBehdad Eghbali\nTitle:\nPresident, Chief Executive Officer\nTitle:\nManager\nAddress:\n1565 Jefferson Road Suite 120\nAddress:\n233 Wilshire Boulevard, Suite 800\nCity, State, Zip:\nRochester, NY 14623\nCity, State, Zip: Santa Monica, California 90401\nDate:\nMay 8, 2013\nDate:\nMay 8, 2013	EX-99.(D)(3)(I) 10 d552900dex99d3i.htm EX-99.(D)(3)(I)\nExhibit (d)(3)(i)\nMutual Non-Disclosure Agreement\nIn order to protect certain Confidential Information (as defined below)\nVeramark Technologies, Inc., for itself and its subsidiaries, affiliates\nand representatives (the “Company”), and Clearlake Capital Group,\nL.P., for itself and its subsidiaries, affiliates and representatives\n(“Participant”), individually referred to as a “Party” and collectively\nreferred to as the “Parties”, agree that:\n1. Effective Date: The effective date of this non-disclosure\nagreement (“Agreement”) is May 8, 2013 (“Effective Date”).\n2. All Information: The Agreement shall apply to all Confidential\nInformation disclosed between the Parties.\n3. Definitions: Confidential information (“Confidential\nInformation”) generally shall mean all information that is\nfurnished by or on behalf of a Party to or for the other Party,\nwhether in written, oral, electronic, Web site-based, or other form,\nand any copies, reports, analyses, compilations, or studies which\ncontain, otherwise reflect or are generated from such information;\nprovided, that the information is identified as such pursuant to\nSection 8 of this Agreement. Confidential Information includes,\nbut is not limited to, customer and vendor-related data,\nservices/support information, and information about products,\narchitectures, software, strategies, plans, techniques, drawings,\ndesigns, specifications, technical or know-how data, research and\ndevelopment, ideas, trade secrets, inventions, and patent\ndisclosures that may be disclosed between the Parties.\n4. Disclosure: Without the prior written consent of the other Party,\neach Party agrees not to issue or release any articles, advertising,\npublicity or other communication relating to any Confidential\nInformation of the other Party. Additionally, each Party agrees not\nto disclose that a meeting or discussions are taking or have taken\nplace between the Parties, that Confidential Information has been\nmade available, or that a transaction involving the Parties is under\nconsideration or mentioning or implying the name of the other\nParty or the status of discussions, except as may be required by\nlaw and then only after providing the other Party with an\nopportunity to review and comment thereon. Participant agrees\nthat any communication regarding a possible transaction will be\nsolely with designated officers, employees or representatives of\nthe Company, including America’s Growth Capital, and further\nagrees not to discuss any possible transaction with any employee,\nshareholder, commercial partner, or customer of the Company\nexcept as authorized by an officer of the Company or America’s\nGrowth Capital.\n5. Termination: This Agreement shall remain in effect until it is\nterminated by either Party with thirty (30) days prior written\nnotice. The terms and conditions of this Agreement shall survive\nany such termination with respect to Confidential Information\nthat is disclosed prior to the effective date of termination. The\nParties receiving\nConfidential Information (each, a “Recipient”) from the other\nParties disclosing Confidential Information (each, a “Discloser”)\nwill use the Confidential Information solely for the purpose of\nevaluating or undertaking a possible mutually-agreeable financial\nor other transaction with or regarding the other Party.\n6. Term: Unless the Parties otherwise agree in writing, a Recipient’s\nduty to protect Confidential Information expires two (2) years\nfrom the date of disclosure. A Recipient, upon Discloser’s written\nrequest, will promptly return or destroy, at Recipient’s election\nand with written certification to Company, all Confidential\nInformation received from the Discloser, together with all copies,\nor certify in writing that all such Confidential Information and\ncopies thereof have been destroyed.\n7. Degree of Care: A Recipient will use the same degree of care,\nbut no less than a reasonable degree of care, as the Recipient uses\nwith respect to its own similar information to protect the\nConfidential Information. Recipient shall prevent (a) any use of\nConfidential Information not authorized in this Agreement,\n(b) dissemination of Confidential Information to any employee of\nRecipient without a need to know, (c) communication of\nConfidential Information to any third party or (d) publication of\nConfidential Information.\n8. Identification of Confidential Information: A Recipient will\nhave a duty to protect Confidential Information (a) if it is marked\nor accompanied by documents clearly and conspicuously\ndesignating them as “confidential” or the equivalent; or (b) if it is\nidentified by the Discloser as confidential before, during or\npromptly after the presentation or communication; or (c) if it\nshould reasonably be understood as confidential from the nature\nof the information and/or circumstances under which it is\ndisclosed.\n9. Other Transactions: Notwithstanding any provision of this\nagreement to the contrary, this agreement shall not limit, restrict\nor impair the ability of either Party or its Representatives to\nengage in transactions with respect to securities, instruments and\ninterests of the other party or any other person or entity, so long as\nsuch transactions do not violate applicable United States\nsecurities laws, provided, however, from and after the date of this\nagreement and until four (4) months after the date first written\nabove, you will not in any manner, directly or indirectly, without\nthe prior written consent of the Company’s Board of Directors:\n(i) acquire, offer to acquire or agree to acquire, directly or\nindirectly, by purchase or otherwise, more than 2% of any class of\nsecurities or direct or Indirect rights to acquire more than 2% of\nany class of securities of the Company or any subsidiary, or of\nany successor to the Company, or more than 2% of any assets of\nthe Company, subsidiary or division thereof or of any such\nsuccessor; (ii) make, or in any way participate in, directly or\nindirectly, any “solicitation” of “proxies” or consents to vote (as\nsuch terms are used in the\nrules of the Securities and Exchange Commission), or seek to\nadvise or influence any person with respect to the voting of any\nsecurities of the Company, (iii) make any public announcement\nwith respect to, or submit a proposal for, or offer of (with or\nwithout conditions) any extraordinary transaction involving the\nCompany or any of its securities or assets, including, without\nlimitation, any merger, recapitalization, restructuring, liquidation,\ndissolution, tender offer, exchange offer, reorganization or\nbusiness combination; (iv) form, join or in any way participate in\na “group” (as defined In Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended) with respect to any securities\nof the Company; (v) otherwise act, alone or in concert with\nothers, to seek control or influence the management, Board of\nDirectors or policies of the Company; or (vi) enter into any\ndiscussions, negotiations or arrangements or advise, assist or\nencourage any other persons in connection with any of the\nforegoing, except in consideration of a transaction contemplated\nby this Agreement.\n10. Public Information: This Agreement imposes no obligation\nupon a Recipient with respect to Confidential Information which\n(a) the Recipient can demonstrate was already in its possession\nbefore receipt from the Discloser; (b) is or becomes publicly\navailable through no fault of the Recipient; (c) is rightfully\nreceived by the Recipient from a third party not known to be\nbound by a duty of confidentiality; or (d) is independently\ndeveloped by the Recipient without a breach of this Agreement. If\na Recipient is required by a government body or court of law to\ndisclose Confidential Information, the Recipient agrees to give\nthe Discloser reasonable advance notice, if legally permissible, so\nthat Discloser may contest the disclosure or seek a protective\norder at its sole expense, but Recipient may otherwise disclose\nConfidential Information to the government body or court of law\nwithout liability hereunder; provided it will limit the disclosure to\nonly that information necessary to comply with such requirement\nor law.\n11. Right to Disclose: EACH DISCLOSER WARRANTS THAT\nIT HAS THE RIGHT TO DISCLOSE ITS CONFIDENTIAL\nINFORMATION. NO OTHER WARRANTIES ARE MADE\nAND NO RESPONSIBILITY OR LIABILITY IS OR WILL\nBE ACCEPTED BY EITHER PARTY IN RELATION TO\nOR AS TO THE ACCURACY OR COMPLETENESS OF\nTHE CONFIDENTIAL INFORMATION. ALL\nCONFIDENTIAL INFORMATION IS PROVIDED “AS IS”.\n12. No Obligation: This Agreement imposes no obligation on a Party\nto exchange Confidential Information or to enter into any\ntransaction.\n13. Export Compliance: A Recipient will adhere to all applicable\nlaws and regulations of the U.S. Export Administration and will\nnot export or re-export any technical data or products received\nfrom a Discloser, or the\ndirect product of such technical data, to any proscribed country\nlisted in the U.S . Export Administration regulations, or foreign\nnational thereof, unless properly authorized by the U.S.\nGovernment.\n14. Intellectual Property: No Party acquires any intellectual\nproperty rights under this Agreement except the limited rights\nnecessary to carry out the purposes as set forth in this Agreement.\nSubject to the obligations of this Agreement, no Party will be\nprecluded from independently developing technology or pursuing\nbusiness opportunities similar to those covered by this\nAgreement. Each Party retains sole discretion to assign or\nreassign the job responsibilities of its employees.\n15. Non-Solicitation: For one year from the Effective Date of this\nAgreement, Participant agrees not to, either directly or through\nothers, solicit or attempt to solicit any employee of the Company\nto terminate his, her or its relationship with the Company;\nprovided, that the foregoing will not prohibit Participant from\nhiring a Company employee who (i) applies for a position with\nParticipant or its affiliates without any specific solicitation or as a\nresult of a general solicitation via advertisements for employment\nor searches not specifically directed towards employees of the\nCompany; (ii) is hired by a portfolio company of Participant\nwithout the knowledge of, direction or encouragement of\nParticipant; or (iii) terminated by the Company.\n16. Damages: Each Party acknowledges that damages for breach of\nthis Agreement may be irreparable; therefore, the injured Party\nmay be entitled to seek equitable relief, including injunction and\npreliminary injunction, in addition to all other remedies available\nat law or in equity.\n17. Enforcement: The obligations and duties imposed by this\nAgreement with respect to any Confidential Information may be\nenforced by the Discloser of such Confidential Information\nagainst any and all Recipients of such Confidential Information.\n18. Jurisdiction: This Agreement is made under, and will be\nconstrued according to, the laws of the State of Delaware.\n19. Severability: If any provision of this Agreement is found to be\ninvalid or unenforceable in whole or in part, the Parties agree that\nsuch provision shall be reformed and construed to the maximum\nextent enforceable, and that the remaining provisions shall remain\nvalid and enforceable to the maximum extent compatible with\nlaw.\n20. Consent: This Agreement does not create any agency or\npartnership relationship. This Agreement will not be assignable or\ntransferable without the prior written consent of the other Party.\nAll additions or modifications to this Agreement must be made in\nwriting and must be signed by all Parties. Each Party agrees that\nfacsimile signatures will have the same legal effect as originals\nsignatures and may be used as evidence of execution.\nVeramark Technologies, Inc.\nClearlake Capital Group, L.P.\nBy:\n/s/ Anthony C. Mazzullo\nBy:\n/s/ Behdad Eghbali\nName:\nAnthony C. Mazzullo\nName:\nBehdad Eghbali\nTitle:\nPresident, Chief Executive Officer\nTitle:\nManager\nAddress:\n1565 Jefferson Road Suite 120\nAddress:\n233 Wilshire Boulevard, Suite 800\nCity, State, Zip: Rochester, NY 14623\nCity, State, Zip: Santa Monica, California 90401\nDate:\nMay 8, 2013\nDate:\nMay 8, 2013\n21. Headings: The headings in this Agreement are included for\nconvenience only and shall neither affect the construction or\ninterpretation of any provision of this Agreement nor affect any of\nthe rights or obligations of the parties to this Agreement.\n22. No Obligation. Nothing in this Agreement or otherwise obligates\nthe Company to share any information to the Participant or to\nenter into any discussions or negotiations with respect to any\ntransaction(s). The Company shall not be bound to any\ntransaction with the Participant unless and until a definitive\nagreement is executed and delivered by the parties. For avoidance\nof doubt, Participant also shall be under no obligation to affect an\ninvestment or enter into a transaction with the Company. The\nCompany acknowledges that, as a private equity investor,\nParticipant considers, makes, and has made investments in a\nvariety of markets and that Participant’s participation in the\nevaluation of the Company for an investment may enhance the\nunderstanding of Participant, its affiliates and its and their\nrepresentatives of the markets in\nwhich Participant, its affiliates and its and their representatives\nmay now, or in the future, compete as a principal investor or\noperator and that such further understanding will not, in and of\nitself, be considered a violation of this Agreement, provided that\nParticipant does not breach this Agreement. In addition, Company\nacknowledges that Participant, its affiliates (including its portfolio\ncompanies) and its and their representatives are or may become\ninvolved in businesses that are similar or identical to Company’s\nbusiness, and Company agrees that Participant, its affiliates\n(including its portfolio companies) and its and their\nrepresentatives shall not be restricted or prohibited from operating\ntheir respective businesses in the ordinary course, including those\nbusinesses that compete with Company’s business, or from\nmaking any investments in any such businesses, provided\nParticipant does not breach this Agreement.
+05a8b77e5c3662f95fcf9c2c643b74db.pdf	effective_date jurisdiction party term	EX-10.12 4 zbh-ex1012_349.htm EX-10.12\nExhibit 10.12\nCORPORATE EXECUTIVE CONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nThis Corporate Executive Confidentiality, Non-Competition and Non-Solicitation Agreement (“Agreement”) is made by\nand between Zimmer, Inc., a corporation having its principal headquarters in Warsaw, Indiana, and\n______________________________\n(“Employee”).\nRecitals\nA.\nFor purposes of this Agreement, the term "Company" means Zimmer, Inc., Zimmer US, Inc. and/or\nany or each of their affiliates, parents, or direct or indirect subsidiaries (including but not limited to Biomet, Inc. and its\naffiliates, parents or direct or indirect subsidiaries), as well as any successor-in-interest to Zimmer, Inc., Zimmer US, Inc.\nand/or to any of their direct or indirect subsidiaries, affiliates, or parents.\nB.\nEmployee is employed or is being employed by Company in an executive and/or high-level\nmanagerial capacity in which Employee has or will have extensive access to trade secrets and confidential information of\nCompany, and/or is being offered certain equity incentives.\nC.\nCompany has offered Employee employment and/or other valuable consideration, which may include\nwithout limitation such consideration as a job promotion, an increase in compensation, and/or an equity award,\ncontingent upon Employee's entering into this Agreement.\nAgreement\nNOW, THEREFORE, in consideration of the foregoing recitals, the promises contained herein and other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and Employee\nagree to be legally bound as follows:\n1.\nAcknowledgements. Employee acknowledges that Company is engaged in the highly competitive\nbusiness of the development, manufacture, distribution, and sale of orthopedic- and musculoskeletal-related medical and\nsurgical devices, products, and services, including but not limited to hip, knee, trauma, extremities, craniomaxillofacial,\nthoracic, dental rehabilitation, spine, microfixation, bone healing, bone cement, surgical, sports medicine, orthopedic\ndiagnostic (including unique diagnostic products developed for or by Company) and/or biologics devices, products,\nprocesses and services, and that Employee serves or will serve in an executive and/or high-level managerial capacity for\nCompany and in that capacity Employee has and/or will have access to and has and/or will gain knowledge of substantial\ntrade secrets and confidential information of Company.\n2.\nNon-Disclosure and Ownership of Confidential Information. Employee acknowledges that\nConfidential Information is a valuable, special, and unique asset of Company, and solely the property of Company, and\nagrees to the following; provided, however, that this policy does not, in any manner, prevent employees from filing a\ncomplaint with, providing information to, or participating in an investigation conducted by, the Securities and Exchange\nCommission, the United States Equal Opportunity Commission or any other governmental or law enforcement agency.\n(a)\nConfidential Information Defined. The term “Confidential Information” includes, but is not\nlimited to, any and all of Company’s trade secrets, confidential and proprietary information and all other information and\ndata of Company that is not generally known to the public or other third parties who could derive economic value from\nits use or disclosure. Confidential Information includes, without limitation, technical information such as product\nspecifications, compounds, formulas, improvements, discoveries, developments, designs, inventions, techniques, new\nproducts and surgical training methods, and research and development information; confidential business methods and\nprocesses; business plans and strategies; marketing plans and strategies; non-public financial information including\nbudgets, sales data, sales forecasts, sales quotas, and information regarding profits or losses; office optimization and\nlogistics information; information pertaining to current and prospective customers; information pertaining to distributors\nand sales structures; pricing information; discount schedules; costing information; personnel information; compensation\nstructure, schedules and plans; and information about current and prospective products or services, whether or not\nreduced to writing or other tangible medium of expression, including work product created by Employee in rendering\nservices for Company.\n(b)\nNon-Disclosure of Confidential Information. During Employee's employment with Company\nand thereafter, Employee will not disclose, transfer, or use (or seek to induce others to disclose, transfer, or use) any\nConfidential Information for any purpose other than( i) disclosure to authorized employees and agents of Company who\nare bound to maintain the confidentiality of the Confidential Information; (ii) for authorized purposes during the course\nof Employee’s employment in furtherance of Company’s business; and/or (iii) as specifically allowed or required under\napplicable law. Employee's non-disclosure obligations shall continue as long as the Confidential Information remains\nconfidential and shall not apply to information that becomes generally known to the public through no fault or action of\nEmployee. The Federal Defend Trade Secrets Act provides that individuals may not be held criminally or civilly liable\nunder any federal or state trade secret law for the disclosure of a trade secret that is made (a) in confidence to a federal,\nstate or local government official, either directly or indirectly, or to an attorney if such disclosure is made solely for the\npurpose of reporting or investigating a suspected violation of law or for pursuing an anti-retaliation lawsuit; or (b) in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal and the individual\ndoes not disclose the trade secret except pursuant to a court order.\n(c)\nProtection of Confidential Information. Employee will notify Company in writing of any\ncircumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. Employee\nwill use Employee's best efforts to protect Confidential Information from unauthorized disclosure, transfer, or\nuse. Employee will implement and abide by all procedures adopted by Company to prevent unauthorized disclosure,\ntransfer, or use of Confidential Information. Notwithstanding the above requirements, nothing in this Agreement shall\nrestrict Employee's right to make disclosures specifically allowed or required under applicable law.\n-2-\n3.\nOwnership of Intellectual Property.\n(a)\nInvention Defined. The term “Invention” includes, but is not limited to ideas, programs,\nprocesses, systems, intellectual property, works of authorship, copyrightable materials, discoveries, and/or improvements\nwhich Employee discovers, invents, originates, develops, makes, authors, or conceives alone or in conjunction with\nothers during Employee’s employment with Company and/or within six (6) months after Employee’s employment ends\nwhich relate to Company’s present or future business. An Invention is covered by this Agreement regardless of whether\n(i) Employee conceived of the Invention in the scope of Employee’s employment; (ii) the Invention is patentable; or (iii)\nCompany takes any action to commercialize or develop the Invention.\n(b)\nOwnership of Inventions. Inventions are solely the property of Company. Employee agrees that\nby operation of law and/or the effect of this Agreement Employee does not have any rights, title, or interest in any\nInventions. Notwithstanding, Employee may be recognized as the inventor of an Invention without retaining any other\nrights associated therewith.\n(c)\nDisclosure and Assignment of Inventions. Employee hereby assigns to Company all right, title\nand interest Employee may have in any Inventions that are discovered, invented, originated, developed, made, authored,\nor conceived by Employee (whether alone or with others) during Employee’s employment with Company and/or within\nsix (6) months after Employee’s employment ends which relate to Company’s present or future business. Employee\nagrees to: (i) promptly disclose all such Inventions in writing to Company; (ii) keep complete and accurate records of all\nsuch Inventions, which records shall be Company property and shall be retained on Company premises; and (iii) execute\nsuch documents and do such other acts as may be necessary in the opinion of Company to establish and preserve\nCompany’s property rights in all such Inventions. This section shall not apply to any Invention for which no equipment,\nsupplies, facility or trade secret information of Company was used and which was developed entirely on Employee’s\nown time, and (1) which does not relate (a) directly to the business of Company, or (b) to Company’s actual or\ndemonstrably anticipated research or development, and (2) which does not result from any work performed by Employee\nfor Company.\n(d)\nWorks of Authorship. All written, graphic or recorded material and all other works of\nauthorship fixed in a tangible medium of expression made or created by Employee, solely or jointly with others, during\nEmployee’s employment with Company and relating to Company’s business, actual or contemplated, shall be the\nexclusive property of Company (collectively “Works”). Company will have the exclusive right to copyright such\nWorks. Employee agrees that if any Work created while employed by Company, whether or not created at the direction\nof Company, is copyrightable, such Work will be a “work made for hire,” as that term is defined in the copyright laws of\nthe United States. If, for any reason, any copyrightable Works created by Employee are excluded from that definition,\nEmployee hereby assigns and conveys to Company all right, title and interest (including any copyright and renewals) in\nsuch Works.\n(e)\nAttribution and Use of Works and Inventions; Waiver of Assertion of “Moral” Rights in\nInventions and Works. Employee agrees that Company and its licensees are not\n-3-\nrequired to designate Employee as author, inventor or developer of any Works or Inventions when distributed or\notherwise. Employee hereby waives, and agrees not to assert, any “moral” rights in any Inventions and\nWorks. Employee agrees that Company and its licensees shall have sole discretion with regard to how and for what\npurposes any Inventions or Works are used or distributed.\n(f)\nEmployee Cooperation in Establishment of Company Proprietary Rights. Employee will sign\ndocuments of assignment, declarations and other documents and take all other actions reasonably required by Company,\nat Company’s expense, to perfect and enforce any of its proprietary rights. In the event Company is unable, for any\nreason whatsoever, to secure Employee’s signature to any lawful or necessary documents required to apply for,\nprosecute, perfect, or assign any United States or foreign application for Letters Patent, trademark, copyright registration,\nor other filing to protect any Invention or Work, Employee hereby irrevocably designates and appoints Company and its\nduly authorized officers and agents as Employee’s agent and attorney in fact, to act for and on Employee’s behalf, to\nexecute and file any such application, registration or other filing, and to do all other lawfully permitted acts to further the\nprosecution, issuance or assignment of Letters Patent or other protections on such Inventions, or registrations for\ntrademark or copyright or other protections on such Works, with the same force and effect as if executed by Employee.\n4.\nReturn of Confidential Information and Company Property. Immediately upon termination of\nEmployee’s employment with Company, Employee shall return to Company all of Company’s property relating to\nCompany’s business, including without limitation all of Company’s property which is in the possession, custody, or\ncontrol of Employee such as Confidential Information, documents, hard copy files, copies of documents and electronic\ninformation/files, and equipment (e.g., computers and mobile phones).\n5.\nObligations to Other Entities or Persons. Employee warrants that Employee is not bound by the\nterms of a confidentiality agreement or any other legal obligation which would either preclude or limit Employee from\ndisclosing or using any of Employee’s ideas, inventions, discoveries or other information or otherwise fulfilling\nEmployee’s obligations to Company. While employed by Company, Employee shall not disclose or use any confidential\ninformation belonging to another entity or other person.\n6.\nConflict of Interest and Duty of Loyalty. During Employee’s employment with Company,\nEmployee shall not engage, directly or indirectly, in any activity, employment or business venture, whether or not for\nremuneration, that (i) is competitive with Company’s business; (ii) deprives or potentially could deprive Company of any\nbusiness opportunity; (iii) conflicts or potentially could conflict with Company’s business interests; or (iv) is otherwise\ndetrimental to Company, including but not limited to preparations to engage in any of the foregoing activities.\n-4-\n7.\nRestrictive Covenants. Employee agrees to, and covenants to comply with, each of the following\nseparate and divisible restrictions:\n(a)\nDefinitions.\n(1)\n“Competing Product” is defined as any implant, device, or medical product(s), service(s),\ninstrument(s) or supplies that is or are the same as, related to, or similar to any product, process or service that Company\nis researching, developing, manufacturing, distributing, selling and/or providing at the time of Employee’s separation\nfrom employment with Company (including, but not limited to, any product or service Company’s Hip, Knee, Trauma,\nExtremities, Craniomaxillofacial, Thoracic, Biologics, Surgical, Sports Medicine, Microfixation, Bone Healing, Bone\nCement, Orthopedic Diagnostic, Spine and/or Dental division is researching, developing, manufacturing, distributing,\nselling and/or providing at the time of Employee's separation from employment with Company).\n(2)\n“Competing Organization” is defined as any organization that researches, develops,\nmanufactures, markets, distributes and/or sells one or more Competing Products. A Competing Organization is\ndiversified if it operates multiple, independently operating business divisions, units, lines or segments some of which do\nnot research, develop, manufacture, market, distribute and/or sell any Competing Products.\n(3)\n“Prohibited Capacity” is defined as (a) any same or similar capacity to that held by\nEmployee at any time during Employee's last two (2) years of employment with Company; (b) any executive or\nmanagerial capacity; or (c) any capacity in which Employee’s knowledge of Confidential Information and/or Inventions\nwould render Employee’s assistance to a Competing Organization a competitive advantage.\n(4)\n“Restricted Geographic Area” is defined as all countries, territories, parishes, municipalities\nand states in which Company is doing business or is selling its products at the time of termination of Employee’s\nemployment with Company, including but not limited to every parish and municipality in the state of\nLouisiana. Employee acknowledges that this geographic scope is reasonable given Employee's position with Company,\nthe international scope of Company's business; and the fact that Employee could compete with Company from anywhere\nCompany does business.\n(5)\n“Restricted Period” is defined as the date Employee executes this Agreement, continuing\nthrough the eighteen (18) months after the Employee’s last day of employment with Company unless otherwise extended\nby Employee’s breach of this Agreement. The running time on the Restricted Period shall be suspended during any\nperiod in which Employee is in violation of any of the restrictive covenants set forth herein, and all restrictions shall\nautomatically be extended by the period Employee was in violation of any such restrictions.\n(6)\n“Customer” is defined as any person or entity with respect to whom, as of the date of\nEmployee’s separation from Company employment or at any time during the two years prior to such separation,\nCompany sold or provided any products and/or services.\n(7)\n“Active Prospect” is defined as any person or entity that Company individually and\nspecifically marketed to and/or held discussions with regarding the distribution\n-5-\nand/or sale of any of Company's products, processes or services at any time during the last six (6) months of Employee’s\nemployment with Company.\n(8)\n“Severance Benefit Period” is the period of time represented by the total amount of any\nseverance benefit offered to Employee (whether or not actually paid). By way of illustration, if Employee were offered a\nlump-sum severance benefit equivalent to ten (10) weeks of Employee’s final base pay upon termination of his or her\nemployment with the Company, Employee’s Severance Benefit Period would be 10 weeks, whether or not Employee\nactually fulfilled all requirements of receiving, and did receive, any portion of the severance benefit.\n(b)\nRestrictive Covenants. During the Restricted Period, Employee agrees to be bound by each of\nthe following independent and divisible restrictions:\n(1)\nCovenant Not to Compete.\n(A)\nEmployee will not, within the Restricted Geographic Area, be employed by, work\nfor, consult with, provide services to, or lend assistance to any Competing Organization in a Prohibited Capacity.\n(B)\nEmployee may be employed by, work for, consult with, provide services to, or\nlend assistance to a Competing Organization provided that: (i) the Competing Organization’s business is diversified;\n(ii) the part of the Competing Organization's business with which Employee will be affiliated would not, evaluated on a\nstand-alone basis, be a Competing Organization; (iii) Employee’s affiliation with the Competing Organization does not\ninvolve any Competing Products; (iv) Employee provides Company a written description of Employee’s anticipated\nactivities on behalf of the Competing Organization which includes, without limitation, an assurance satisfactory to\nCompany that Employee’s affiliation with the Competing Organization does not constitute a Prohibited Capacity; and (v)\nEmployee's affiliation with the Competing Organization does not constitute a competitive disadvantage to Company.\n(2)\nCovenant Not to Solicit Customers or Active Prospects. Employee will not, directly or\nindirectly, (i) provide, sell, or market; (ii) assist in the provision, selling or marketing of; or (iii) attempt to provide, sell\nor market any Competing Products to any of Company’s Customers or Active Prospects located in the Restricted\nGeographic Area.\n(3)\nCovenant Not to Interfere With Business Relationships. Employee will not, within the\nRestricted Geographic Area, urge, induce or seek to induce any of Company’s independent contractors, subcontractors,\ndistributors, brokers, consultants, sales representatives, customers, vendors, suppliers or any other person or entity with\nwhom Company has a business relationship at the time of Employee's separation from Company employment to\nterminate its or their relationship with, or representation of, Company or to cancel, withdraw, reduce, limit or in any\nmanner modify any such person’s or entity’s business with, or representation of, Company\n(4)\nCovenant Not to Solicit Company Employees. Employee will not employ, solicit for\nemployment, or advise any other person or entity to employ or solicit for employment, any individual employed by\nCompany at the time of Employee's separation from Company\n-6-\nemployment, or otherwise directly or indirectly induce or entice any such employee to leave his/her employment with\nCompany.\n(5)\nCovenant Not to Disparage Company. Employee will not make or publish any disparaging\nor derogatory statements about Company; about Company's products, processes, or services; or about Company's past,\npresent and future officers, directors, employees, attorneys and agents. Disparaging or derogatory statements include,\nbut are not limited to, negative statements regarding Company’s business or other practices; provided, however, nothing\nherein shall prohibit Employee from providing any information as may be compelled by law or legal process.\n8.\nReasonableness of Terms. Employee acknowledges and agrees that the restrictive covenants\ncontained in this Agreement restrict Employee from engaging in activities for a competitive purpose and are reasonably\nnecessary to protect Company’s legitimate interests in Confidential Information, Inventions, and goodwill. Additionally,\nEmployee acknowledges and agrees that the restrictive covenants are reasonable in all respects, including, but not\nlimited to, temporal duration, scope of prohibited activities and geographic area. Employee further acknowledges and\nagrees that the restrictive covenants set forth in this Agreement will not pose unreasonable hardship on Employee and\nthat Employee will have a reasonable opportunity to earn an equivalent livelihood without violating any provision of this\nAgreement.\n9.\nNon-Competition Period Payments.\n(a)\nEligibility and Amount. In the event of Employee’s involuntary separation from employment\nwith the Company for a reason that renders Employee eligible for benefits under the terms of the Company’s Severance\nPlan, then to the extent Employee is denied, solely because of the restrictive covenant provisions of Section 7 of this\nAgreement, a specific full-time or part-time employment, consulting, or other position that would otherwise be offered to\nEmployee by a Competing Organization, and provided Employee satisfies all conditions stated herein, then upon\nexpiration of Employee’s Severance Benefit Period, Company will make monthly payments to Employee for each month\nEmployee remains unemployed through the end of the Restricted Period. These monthly payments shall equal the lesser\nof Employee’s monthly base pay at the time of Employee's separation from Company employment (exclusive of bonus\nand other extra compensation and any other employee benefits) or the monthly compensation that would have been\noffered to Employee by the Competing Organization. This Section 9 will not apply if Employee leaves employment\nwith the Company voluntarily or if Company terminates Employee’s employment for a reason or reasons that render\nEmployee ineligible for benefits under terms of the Company’s Severance Plan.\n(b)\nVerification of Eligibility for Non-Competition Period Payments. To qualify for payments under\nthis Section 9, Employee must provide Company detailed written documentation supporting eligibility for payment,\nincluding, at a minimum, (i) the name and location of the Competing Organization that would have employed Employee\nbut for the provisions of Section 7 of this Agreement, (ii) the title, nature, and detailed job responsibilities of the\nemployment position with the Competing Organization that Employee was denied, (iii) the date Employee was denied\nthe employment position, and (iv) the name and contact information of a managerial employee at the Competing\nOrganization who has sufficient authority to confirm that Employee\n-7-\nwas denied this specific employment position with the Competing Organization solely because Employee is subject to\nthe provisions of Section 7 of this Agreement (the “eligibility documentation”). Upon receipt of the eligibility\ndocumentation, Company will determine eligibility for payment and, if eligibility is established, payments will\ncommence as of the date of Company’s receipt of the eligibility documentation or the date Employee’s Severance\nBenefit Period ends, whichever is later.\n(c)\nObligation to Pursue Replacement Employment and Verification of Continued Eligibility for\nNon-Competition Period Payments. Employee is obligated to diligently seek and pursue replacement employment that\ndoes not violate Section 7 of this Agreement ("replacement employment") during any period in which Employee seeks\nand/or accepts payment from Company under this Section 9. After eligibility for non-competition period payments is\nestablished, Employee will, on or before the 15th day of each month of eligibility for continued payments, submit to\nCompany a written statement (i) identifying by name and address all prospective employers with whom Employee has\napplied or inquired about employment; (ii) identifying positions sought with each listed employer and specific actions\ntaken in seeking each position; (iii) describing all other efforts made to obtain replacement employment; and\n(iv) describing any offers of employment received, including the name of the employer; the nature, title, and\ncompensation terms of the position offered; the actual or anticipated start date if the offer has been accepted; and the\nreason(s) for declining if the offer was declined.\n(d)\nEffect of Replacement Employment on Non-Competition Period Payments. If Employee is\ndenied a specific employment, consulting or other such position with a Competing Organization solely because of the\nrestrictive covenant provisions of Section 7 of this Agreement but obtains other work for compensation, and the monthly\ncompensation (including base pay, commissions, incentive compensation, bonuses, fees and other compensation) for the\nreplacement work is less than Employee’s monthly base pay at the time of Employee’s separation from employment with\nCompany, Company agrees to pay Employee the difference for each such month through the end of the Restricted\nPeriod, again upon expiration of any severance benefits which Employee was offered and provided Employee satisfies\nall conditions stated herein, with monthly payments not to exceed the amount to which Employee is entitled under\nsubsection (a) of this Section 9. Employee shall submit to Company payroll records and/or any other records reasonably\nrequested by Company showing all compensation received by Employee from the replacement work as a condition of\nCompany's payment of Non-Competition Period Payments covering any period of time when Employee performs work\nfor compensation.\n(e)\nCompany's Right To Provide Release of Obligations in Lieu of Non-Competition Period\nPayments. Notwithstanding any of the foregoing provisions of this Section 9, Company reserves the right to release\nEmployee from Employee’s obligations under Section 7 of this Agreement at any time during the Restricted Period, in\nfull or in sufficient part to allow Employee to accept an opportunity that would otherwise be prohibited under this\nAgreement, at which time Company’s payment obligations under this Section 9 shall cease immediately and Employee\nshall not be entitled to any further such payments or compensation.\n10.\nSeverability, Modification of Restrictions. The covenants and restrictions in this Agreement are\nseparate and divisible, and to the extent any clause, portion or section of this Agreement is determined to be\nunenforceable or invalid for any reason, Company and Employee\n-8-\nacknowledge and agree that such unenforceability or invalidity shall not affect the enforceability or validity of the\nremainder of the Agreement. If any particular covenant, provision or clause of this Agreement is determined to be\nunreasonable or unenforceable for any reason, including, without limitation, temporal duration, scope of prohibited\nactivity, and/or scope of geographic area, Company and Employee acknowledge and agree that such covenant, provision\nor clause shall automatically be deemed reformed to have the closest effect permitted by applicable law to the original\nform and shall be given effect and enforced as so reformed to whatever extent would be reasonable and enforceable\nunder applicable law. The parties agree that any court interpreting the provisions of this Agreement shall have the\nauthority, if necessary, to reform any such provision to make it enforceable under applicable law.\n11.\nRemedies. Employee acknowledges that a breach or threatened breach by Employee of this\nAgreement will give rise to irreparable injury to Company and that money damages will not be adequate relief for such\ninjury. Accordingly, Employee agrees that Company shall be entitled to obtain injunctive relief, including, but not\nlimited to, temporary restraining orders, preliminary injunctions and/or permanent injunctions, without having to post\nany bond or other security, to restrain or prohibit such breach or threatened breach, in addition to any other legal\nremedies which may be available. In addition to all other relief to which it shall be entitled, Company shall be entitled to\ncease all payments to which Employee would otherwise be entitled under Section 9 hereto; continue to enforce this\nAgreement; recover from Employee all payments made under Section 9 to the extent attributable to a time during which\nEmployee was in violation of the covenants for which payment was made; and recover from Employee all litigation\ncosts and attorneys’ fees incurred by Company in any action or proceeding relating to this Agreement in which Company\nprevails in any respect, including, but not limited to, any action or proceeding in which Company seeks enforcement of\nthis Agreement or seeks relief from Employee’s violation of this Agreement.\n12.\nSurvival of Obligations. Employee acknowledges and agrees that Employee’s obligations under\nthis Agreement, including, without limitation, Employee’s non-disclosure and non-competition obligations, shall survive\nthe termination of Employee’s employment with Company, whether such termination is with or without cause and\nwhether it is voluntary or involuntary. Employee acknowledges and agrees that nothing in this Agreement alters the at-\nwill nature of Employee's employment and that either Company or Employee may terminate the employment\nrelationship at any time, with or without cause or notice. Employee further acknowledges and agrees\nthat: (a) Employee’s non-disclosure, non-disparagement, non-solicitation and non-competition covenants set forth in\nSections 2 and 7 of this Agreement shall be construed as independent covenants and that no breach of any contractual or\nlegal duty by Company shall be held sufficient to excuse or terminate Employee’s obligations or to preclude Company\nfrom obtaining injunctive relief or other remedies for Employee’s violation or threatened violation of such covenants,\nand (b) the existence of any claim or cause of action by Employee against Company, whether predicated on this\nAgreement or otherwise, shall not constitute a defense to Company's enforcement of Employee's obligations under\nSections 2 and 7 of this Agreement.\n13.\nGoverning Law and Choice of Forum. This Agreement shall be construed and enforced in\naccordance with the laws of the State of Indiana, notwithstanding any state’s choice-of-law rules to the contrary. The\nparties agree that any legal action relating to this Agreement\n-9-\nshall be commenced and maintained exclusively before the United States District Court for the Northern District of\nIndiana if jurisdiction permits, or otherwise before any appropriate state court located in Kosciusko County,\nIndiana. The parties hereby submit to the jurisdiction of such courts and waive any right to challenge or otherwise object\nto personal jurisdiction or venue, in any action commenced or maintained in such courts. Language translations aside,\nthe English version shall govern.\n14.\nEnforcement. The parties agree that Zimmer, Inc., Zimmer US, Inc. and/or any or each of their\naffiliates, parents, or direct or indirect subsidiaries (including but not limited to Biomet, Inc. and its direct or indirect\nsubsidiaries), as well as any successor-in-interest to Zimmer, Inc., Zimmer US, Inc. and/or to any of their direct or\nindirect subsidiaries, affiliates, or parents are express and intended parties to and beneficiaries to this Agreement, with\nfull rights to enforce this Agreement independently or in conjunction with each other.\n15.\nSuccessors and Assigns. Company shall have the right to assign this Agreement, and, accordingly,\nthis Agreement shall inure to the benefit of, and may be enforced by, any and all successors and assigns of Company,\nincluding without limitation by asset assignment, stock sale, merger, consolidation or other corporate reorganization, and\nshall be binding on Employee. The services to be provided by Employee to Company are personal to Employee, and\nEmployee shall not have the right to assign Employee’s duties under this Agreement.\n16.\nModification. This Agreement may not be amended, supplemented, or modified except by a written\ndocument signed by both Employee and a duly authorized officer of Company.\n17.\nNo Waiver. The failure of Company to insist in any one or more instances upon performance of any\nprovision of this Agreement or to pursue its rights hereunder shall not be construed as a waiver of any such provisions or\nthe relinquishment of any such rights.\n18.\nCounterparts. This Agreement may be executed in counterparts, each of which shall be deemed an\noriginal, but both of which when taken together will constitute one and the same agreement.\n19.\nEntire Agreement. This Agreement, including Recitals, constitutes the entire agreement of the\nparties with respect to the subjects specifically addressed herein, and supersedes any prior agreements, understandings,\nor representations, oral or written, on the subjects addressed herein. Notwithstanding the foregoing, to the extent the\nemployee has an existing non-competition, confidentiality, and/or non-solicitation agreement in favor of Company and\nhas breached or violated the terms thereof, Company may continue to enforce its rights and remedies under and pursuant\nto such existing agreement.\n- 10-\nEmployee’s signature below indicates that Employee has read the entire Agreement, understands what Employee is\nsigning, and is signing the Agreement voluntarily. Employee agrees that Company advised Employee to consult with an\nattorney prior to signing the Agreement.\n“EMPLOYEE”\n(Employee Signature)\nPrinted Name:\nDate:\n“COMPANY”\nBy:_______________________________________\nPrinted Name: _____________________________\nTitle: _____________________________________\nDate: _____________________________________\n- 11-	EX-10.12 4 zbh-ex1012_349.htm EX-10.12\nExhibit 10.12\nCORPORATE EXECUTIVE CONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nThis Corporate Executive Confidentiality, Non-Competition and Non-Solicitation Agreement (“Agreement”) is made by\nand between Zimmer, Inc., a corporation having its principal headquarters in Warsaw, Indiana, and\n(“Employee™).\n \nRecitals\nA. For purposes of this Agreement, the term "Company" means Zimmer, Inc., Zimmer US, Inc. and/or\nany or each of their affiliates, parents, or direct or indirect subsidiaries (including but not limited to Biomet, Inc. and its\naffiliates, parents or direct or indirect subsidiaries), as well as any successor-in-interest to Zimmer, Inc., Zimmer US, Inc.\nand/or to any of their direct or indirect subsidiaries, affiliates, or parents.\nB. Employee is employed or is being employed by Company in an executive and/or high-level\nmanagerial capacity in which Employee has or will have extensive access to trade secrets and confidential information of\nCompany, and/or is being offered certain equity incentives.\nC. Company has offered Employee employment and/or other valuable consideration, which may include\nwithout limitation such consideration as a job promotion, an increase in compensation, and/or an equity award,\ncontingent upon Employee's entering into this Agreement.\nAgreement\nNOW, THEREFORE, in consideration of the foregoing recitals, the promises contained herein and other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and Employee\nagree to be legally bound as follows:\n1. Acknowledgements. Employee acknowledges that Company is engaged in the highly competitive\nbusiness of the development, manufacture, distribution, and sale of orthopedic- and musculoskeletal-related medical and\nsurgical devices, products, and services, including but not limited to hip, knee, trauma, extremities, craniomaxillofacial,\nthoracic, dental rehabilitation, spine, microfixation, bone healing, bone cement, surgical, sports medicine, orthopedic\ndiagnostic (including unique diagnostic products developed for or by Company) and/or biologics devices, products,\nprocesses and services, and that Employee serves or will serve in an executive and/or high-level managerial capacity for\nCompany and in that capacity Employee has and/or will have access to and has and/or will gain knowledge of substantial\ntrade secrets and confidential information of Company.\n2. Non-Disclosure and Ownership of Confidential Information. Employee acknowledges that\nConfidential Information is a valuable, special, and unique asset of Company, and solely the property of Company, and\nagrees to the following; provided, however, that this policy does not, in any manner, prevent employees from filing a\ncomplaint with, providing information to, or participating in an investigation conducted by, the Securities and Exchange\nCommission, the United States Equal Opportunity Commission or any other governmental or law enforcement agency.\n(@) Confidential Information Defined. The term “Confidential Information” includes, but is not\nlimited to, any and all of Company’s trade secrets, confidential and proprietary information and all other information and\ndata of Company that is not generally known to the public or other third parties who could derive economic value from\nits use or disclosure. Confidential Information includes, without limitation, technical information such as product\nspecifications, compounds, formulas, improvements, discoveries, developments, designs, inventions, techniques, new\nproducts and surgical training methods, and research and development information; confidential business methods and\nprocesses; business plans and strategies; marketing plans and strategies; non-public financial information including\nbudgets, sales data, sales forecasts, sales quotas, and information regarding profits or losses; office optimization and\nlogistics information; information pertaining to current and prospective customers; information pertaining to distributors\nand sales structures; pricing information; discount schedules; costing information; personnel information; compensation\nstructure, schedules and plans; and information about current and prospective products or services, whether or not\nreduced to writing or other tangible medium of expression, including work product created by Employee in rendering\nservices for Company.\n(b) Non-Disclosure of Confidential Information. During Employee's employment with Company\nand thereafter, Employee will not disclose, transfer, or use (or seek to induce others to disclose, transfer, or use) any\nConfidential Information for any purpose other than( i) disclosure to authorized employees and agents of Company who\nare bound to maintain the confidentiality of the Confidential Information; (ii) for authorized purposes during the course\nof Employee’s employment in furtherance of Company’s business; and/or (iii) as specifically allowed or required under\napplicable law. Employee's non-disclosure obligations shall continue as long as the Confidential Information remains\nconfidential and shall not apply to information that becomes generally known to the public through no fault or action of\nEmployee. The Federal Defend Trade Secrets Act provides that individuals may not be held criminally or civilly liable\nunder any federal or state trade secret law for the disclosure of a trade secret that is made (a) in confidence to a federal,\nstate or local government official, either directly or indirectly, or to an attorney if such disclosure is made solely for the\npurpose of reporting or investigating a suspected violation of law or for pursuing an anti-retaliation lawsuit; or (b) in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal and the individual\ndoes not disclose the trade secret except pursuant to a court order.\n(0 Protection of Confidential Information. Employee will notify Company in writing of any\ncircumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. Employee\nwill use Employee's best efforts to protect Confidential Information from unauthorized disclosure, transfer, or\nuse. Employee will implement and abide by all procedures adopted by Company to prevent unauthorized disclosure,\ntransfer, or use of Confidential Information. Notwithstanding the above requirements, nothing in this Agreement shall\nrestrict Employee's right to make disclosures specifically allowed or required under applicable law.\n-\n3. Ownership of Intellectual Property.\n@) Invention Defined. The term “Invention” includes, but is not limited to ideas, programs,\nprocesses, systems, intellectual property, works of authorship, copyrightable materials, discoveries, and/or improvements\nwhich Employee discovers, invents, originates, develops, makes, authors, or conceives alone or in conjunction with\nothers during Employee’s employment with Company and/or within six (6) months after Employee’s employment ends\nwhich relate to Company’s present or future business. An Invention is covered by this Agreement regardless of whether\n(i) Employee conceived of the Invention in the scope of Employee’s employment; (ii) the Invention is patentable; or (iii)\nCompany takes any action to commercialize or develop the Invention.\n(b) Ownership of Inventions. Inventions are solely the property of Company. Employee agrees that\nby operation of law and/or the effect of this Agreement Employee does not have any rights, title, or interest in any\nInventions. Notwithstanding, Employee may be recognized as the inventor of an Invention without retaining any other\nrights associated therewith.\n(0 Disclosure and Assignment of Inventions. Employee hereby assigns to Company all right, title\nand interest Employee may have in any Inventions that are discovered, invented, originated, developed, made, authored,\nor conceived by Employee (whether alone or with others) during Employee’s employment with Company and/or within\nsix (6) months after Employee’s employment ends which relate to Company’s present or future business. Employee\nagrees to: (i) promptly disclose all such Inventions in writing to Company; (ii) keep complete and accurate records of all\nsuch Inventions, which records shall be Company property and shall be retained on Company premises; and (iii) execute\nsuch documents and do such other acts as may be necessary in the opinion of Company to establish and preserve\nCompany’s property rights in all such Inventions. This section shall not apply to any Invention for which no equipment,\nsupplies, facility or trade secret information of Company was used and which was developed entirely on Employee’s\nown time, and (1) which does not relate (a) directly to the business of Company, or (b) to Company’s actual or\ndemonstrably anticipated research or development, and (2) which does not result from any work performed by Employee\nfor Company.\n(d) Works of Authorship. All written, graphic or recorded material and all other works of\nauthorship fixed in a tangible medium of expression made or created by Employee, solely or jointly with others, during\nEmployee’s employment with Company and relating to Company’s business, actual or contemplated, shall be the\nexclusive property of Company (collectively “Works”). Company will have the exclusive right to copyright such\nWorks. Employee agrees that if any Work created while employed by Company, whether or not created at the direction\nof Company, is copyrightable, such Work will be a “work made for hire,” as that term is defined in the copyright laws of\nthe United States. If, for any reason, any copyrightable Works created by Employee are excluded from that definition,\nEmployee hereby assigns and conveys to Company all right, title and interest (including any copyright and renewals) in\nsuch Works.\n(e) Attribution and Use of Works and Inventions; Waiver of Assertion of “Moral” Rights in\nInventions and Works. Employee agrees that Company and its licensees are not\n-3-\nrequired to designate Employee as author, inventor or developer of any Works or Inventions when distributed or\notherwise. Employee hereby waives, and agrees not to assert, any “moral” rights in any Inventions and\nWorks. Employee agrees that Company and its licensees shall have sole discretion with regard to how and for what\npurposes any Inventions or Works are used or distributed.\n() Employee Cooperation in Establishment of Company Proprietary Rights. Employee will sign\ndocuments of assignment, declarations and other documents and take all other actions reasonably required by Company,\nat Company’s expense, to perfect and enforce any of its proprietary rights. In the event Company is unable, for any\nreason whatsoever, to secure Employee’s signature to any lawful or necessary documents required to apply for,\nprosecute, perfect, or assign any United States or foreign application for Letters Patent, trademark, copyright registration,\nor other filing to protect any Invention or Work, Employee hereby irrevocably designates and appoints Company and its\nduly authorized officers and agents as Employee’s agent and attorney in fact, to act for and on Employee’s behalf, to\nexecute and file any such application, registration or other filing, and to do all other lawfully permitted acts to further the\nprosecution, issuance or assignment of Letters Patent or other protections on such Inventions, or registrations for\ntrademark or copyright or other protections on such Works, with the same force and effect as if executed by Employee.\n4., Return of Confidential Information and Company Property. Immediately upon termination of\nEmployee’s employment with Company, Employee shall return to Company all of Company’s property relating to\nCompany’s business, including without limitation all of Company’s property which is in the possession, custody, or\ncontrol of Employee such as Confidential Information, documents, hard copy files, copies of documents and electronic\ninformation/files, and equipment (e.g., computers and mobile phones).\n5. Obligations to Other Entities or Persons. Employee warrants that Employee is not bound by the\nterms of a confidentiality agreement or any other legal obligation which would either preclude or limit Employee from\ndisclosing or using any of Employee’s ideas, inventions, discoveries or other information or otherwise fulfilling\nEmployee’s obligations to Company. While employed by Company, Employee shall not disclose or use any confidential\ninformation belonging to another entity or other person.\n6. Conflict of Interest and Duty of Loyalty. During Employee’s employment with Company,\nEmployee shall not engage, directly or indirectly, in any activity, employment or business venture, whether or not for\nremuneration, that (i) is competitive with Company’s business; (ii) deprives or potentially could deprive Company of any\nbusiness opportunity; (iii) conflicts or potentially could conflict with Company’s business interests; or (iv) is otherwise\ndetrimental to Company, including but not limited to preparations to engage in any of the foregoing activities.\n-4-\n7. Restrictive Covenants. Employee agrees to, and covenants to comply with, each of the following\nseparate and divisible restrictions:\n(a) Definitions.\n1D “Competing Product” is defined as any implant, device, or medical product(s), service(s),\ninstrument(s) or supplies that is or are the same as, related to, or similar to any product, process or service that Company\nis researching, developing, manufacturing, distributing, selling and/or providing at the time of Employee’s separation\nfrom employment with Company (including, but not limited to, any product or service Company’s Hip, Knee, Trauma,\nExtremities, Craniomaxillofacial, Thoracic, Biologics, Surgical, Sports Medicine, Microfixation, Bone Healing, Bone\nCement, Orthopedic Diagnostic, Spine and/or Dental division is researching, developing, manufacturing, distributing,\nselling and/or providing at the time of Employee's separation from employment with Company).\n(2) “Competing Organization” is defined as any organization that researches, develops,\nmanufactures, markets, distributes and/or sells one or more Competing Products. A Competing Organization is\ndiversified if it operates multiple, independently operating business divisions, units, lines or segments some of which do\nnot research, develop, manufacture, market, distribute and/or sell any Competing Products.\n3) “Prohibited Capacity” is defined as (a) any same or similar capacity to that held by\nEmployee at any time during Employee's last two (2) years of employment with Company; (b) any executive or\nmanagerial capacity; or (c) any capacity in which Employee’s knowledge of Confidential Information and/or Inventions\nwould render Employee’s assistance to a Competing Organization a competitive advantage.\n4) “Restricted Geographic Area” is defined as all countries, territories, parishes, municipalities\nand states in which Company is doing business or is selling its products at the time of termination of Employee’s\nemployment with Company, including but not limited to every parish and municipality in the state of\nLouisiana. Employee acknowledges that this geographic scope is reasonable given Employee's position with Company,\nthe international scope of Company's business; and the fact that Employee could compete with Company from anywhere\nCompany does business.\n(5) “Restricted Period” is defined as the date Employee executes this Agreement, continuing\nthrough the eighteen (18) months after the Employee’s last day of employment with Company unless otherwise extended\nby Employee’s breach of this Agreement. The running time on the Restricted Period shall be suspended during any\nperiod in which Employee is in violation of any of the restrictive covenants set forth herein, and all restrictions shall\nautomatically be extended by the period Employee was in violation of any such restrictions.\n(6) “Customer” is defined as any person or entity with respect to whom, as of the date of\nEmployee’s separation from Company employment or at any time during the two years prior to such separation,\nCompany sold or provided any products and/or services.\n(7) “Active Prospect” is defined as any person or entity that Company individually and\nspecifically marketed to and/or held discussions with regarding the distribution\n-5-\nand/or sale of any of Company's products, processes or services at any time during the last six (6) months of Employee’s\nemployment with Company.\n(8) “Severance Benefit Period” is the period of time represented by the total amount of any\nseverance benefit offered to Employee (whether or not actually paid). By way of illustration, if Employee were offered a\nlump-sum severance benefit equivalent to ten (10) weeks of Employee’s final base pay upon termination of his or her\nemployment with the Company, Employee’s Severance Benefit Period would be 10 weeks, whether or not Employee\nactually fulfilled all requirements of receiving, and did receive, any portion of the severance benefit.\n(b) Restrictive Covenants. During the Restricted Period, Employee agrees to be bound by each of\nthe following independent and divisible restrictions:\n(D Covenant Not to Compete.\n(A) Employee will not, within the Restricted Geographic Area, be employed by, work\nfor, consult with, provide services to, or lend assistance to any Competing Organization in a Prohibited Capacity.\n(B) Employee may be employed by, work for, consult with, provide services to, or\nlend assistance to a Competing Organization provided that: (i) the Competing Organization’s business is diversified;\n(ii) the part of the Competing Organization's business with which Employee will be affiliated would not, evaluated on a\nstand-alone basis, be a Competing Organization; (iii) Employee’s affiliation with the Competing Organization does not\ninvolve any Competing Products; (iv) Employee provides Company a written description of Employee’s anticipated\nactivities on behalf of the Competing Organization which includes, without limitation, an assurance satisfactory to\nCompany that Employee’s affiliation with the Competing Organization does not constitute a Prohibited Capacity; and (v)\nEmployee's affiliation with the Competing Organization does not constitute a competitive disadvantage to Company.\n(2) Covenant Not to Solicit Customers or Active Prospects. Employee will not, directly or\nindirectly, (i) provide, sell, or market; (ii) assist in the provision, selling or marketing of; or (iii) attempt to provide, sell\nor market any Competing Products to any of Company’s Customers or Active Prospects located in the Restricted\nGeographic Area.\n3) Covenant Not to Interfere With Business Relationships. Employee will not, within the\nRestricted Geographic Area, urge, induce or seek to induce any of Company’s independent contractors, subcontractors,\ndistributors, brokers, consultants, sales representatives, customers, vendors, suppliers or any other person or entity with\nwhom Company has a business relationship at the time of Employee's separation from Company employment to\nterminate its or their relationship with, or representation of, Company or to cancel, withdraw, reduce, limit or in any\nmanner modify any such person’s or entity’s business with, or representation of, Company\n4) Covenant Not to Solicit Company Employees. Employee will not employ, solicit for\nemployment, or advise any other person or entity to employ or solicit for employment, any individual employed by\nCompany at the time of Employee's separation from Company\n-6-\nemployment, or otherwise directly or indirectly induce or entice any such employee to leave his/her employment with\nCompany.\n(5) Covenant Not to Disparage Company. Employee will not make or publish any disparaging\nor derogatory statements about Company; about Company's products, processes, or services; or about Company's past,\npresent and future officers, directors, employees, attorneys and agents. Disparaging or derogatory statements include,\nbut are not limited to, negative statements regarding Company’s business or other practices; provided, however, nothing\nherein shall prohibit Employee from providing any information as may be compelled by law or legal process.\n8. Reasonableness of Terms. Employee acknowledges and agrees that the restrictive covenants\ncontained in this Agreement restrict Employee from engaging in activities for a competitive purpose and are reasonably\nnecessary to protect Company’s legitimate interests in Confidential Information, Inventions, and goodwill. Additionally,\nEmployee acknowledges and agrees that the restrictive covenants are reasonable in all respects, including, but not\nlimited to, temporal duration, scope of prohibited activities and geographic area. Employee further acknowledges and\nagrees that the restrictive covenants set forth in this Agreement will not pose unreasonable hardship on Employee and\nthat Employee will have a reasonable opportunity to earn an equivalent livelihood without violating any provision of this\nAgreement.\n9. Non-Competition Period Payments.\n@) Eligibility and Amount. In the event of Employee’s involuntary separation from employment\nwith the Company for a reason that renders Employee eligible for benefits under the terms of the Company’s Severance\nPlan, then to the extent Employee is denied, solely because of the restrictive covenant provisions of Section 7 of this\nAgreement, a specific full-time or part-time employment, consulting, or other position that would otherwise be offered to\nEmployee by a Competing Organization, and provided Employee satisfies all conditions stated herein, then upon\nexpiration of Employee’s Severance Benefit Period, Company will make monthly payments to Employee for each month\nEmployee remains unemployed through the end of the Restricted Period. These monthly payments shall equal the lesser\nof Employee’s monthly base pay at the time of Employee's separation from Company employment (exclusive of bonus\nand other extra compensation and any other employee benefits) or the monthly compensation that would have been\noffered to Employee by the Competing Organization. This Section 9 will not apply if Employee leaves employment\nwith the Company voluntarily or if Company terminates Employee’s employment for a reason or reasons that render\nEmployee ineligible for benefits under terms of the Company’s Severance Plan.\n(b) Verification of Eligibility for Non-Competition Period Payments. To qualify for payments under\nthis Section 9, Employee must provide Company detailed written documentation supporting eligibility for payment,\nincluding, at a minimum, (i) the name and location of the Competing Organization that would have employed Employee\nbut for the provisions of Section 7 of this Agreement, (ii) the title, nature, and detailed job responsibilities of the\nemployment position with the Competing Organization that Employee was denied, (iii) the date Employee was denied\nthe employment position, and (iv) the name and contact information of a managerial employee at the Competing\nOrganization who has sufficient authority to confirm that Employee\n-7-\nwas denied this specific employment position with the Competing Organization solely because Employee is subject to\nthe provisions of Section 7 of this Agreement (the “eligibility documentation”). Upon receipt of the eligibility\ndocumentation, Company will determine eligibility for payment and, if eligibility is established, payments will\ncommence as of the date of Company’s receipt of the eligibility documentation or the date Employee’s Severance\nBenefit Period ends, whichever is later.\n(0 Obligation to Pursue Replacement Employment and Verification of Continued Eligibility for\nNon-Competition Period Payments. Employee is obligated to diligently seek and pursue replacement employment that\ndoes not violate Section 7 of this Agreement ("replacement employment") during any period in which Employee seeks\nand/or accepts payment from Company under this Section 9. After eligibility for non-competition period payments is\nestablished, Employee will, on or before the 15th day of each month of eligibility for continued payments, submit to\nCompany a written statement (i) identifying by name and address all prospective employers with whom Employee has\napplied or inquired about employment; (ii) identifying positions sought with each listed employer and specific actions\ntaken in seeking each position; (iii) describing all other efforts made to obtain replacement employment; and\n(iv) describing any offers of employment received, including the name of the employer; the nature, title, and\ncompensation terms of the position offered; the actual or anticipated start date if the offer has been accepted; and the\nreason(s) for declining if the offer was declined.\n \n(d) Effect of Replacement Employment on Non-Competition Period Payments. If Employee is\ndenied a specific employment, consulting or other such position with a Competing Organization solely because of the\nrestrictive covenant provisions of Section 7 of this Agreement but obtains other work for compensation, and the monthly\ncompensation (including base pay, commissions, incentive compensation, bonuses, fees and other compensation) for the\nreplacement work is less than Employee’s monthly base pay at the time of Employee’s separation from employment with\nCompany, Company agrees to pay Employee the difference for each such month through the end of the Restricted\nPeriod, again upon expiration of any severance benefits which Employee was offered and provided Employee satisfies\nall conditions stated herein, with monthly payments not to exceed the amount to which Employee is entitled under\nsubsection (a) of this Section 9. Employee shall submit to Company payroll records and/or any other records reasonably\nrequested by Company showing all compensation received by Employee from the replacement work as a condition of\nCompany's payment of Non-Competition Period Payments covering any period of time when Employee performs work\nfor compensation.\n(e) Company's Right To Provide Release of Obligations in Lieu of Non-Competition Period\nPayments. Notwithstanding any of the foregoing provisions of this Section 9, Company reserves the right to release\nEmployee from Employee’s obligations under Section 7 of this Agreement at any time during the Restricted Period, in\nfull or in sufficient part to allow Employee to accept an opportunity that would otherwise be prohibited under this\nAgreement, at which time Company’s payment obligations under this Section 9 shall cease immediately and Employee\nshall not be entitled to any further such payments or compensation.\n10. Severability, Modification of Restrictions. The covenants and restrictions in this Agreement are\nseparate and divisible, and to the extent any clause, portion or section of this Agreement is determined to be\nunenforceable or invalid for any reason, Company and Employee\n-8-\nacknowledge and agree that such unenforceability or invalidity shall not affect the enforceability or validity of the\nremainder of the Agreement. If any particular covenant, provision or clause of this Agreement is determined to be\nunreasonable or unenforceable for any reason, including, without limitation, temporal duration, scope of prohibited\nactivity, and/or scope of geographic area, Company and Employee acknowledge and agree that such covenant, provision\nor clause shall automatically be deemed reformed to have the closest effect permitted by applicable law to the original\nform and shall be given effect and enforced as so reformed to whatever extent would be reasonable and enforceable\nunder applicable law. The parties agree that any court interpreting the provisions of this Agreement shall have the\nauthority, if necessary, to reform any such provision to make it enforceable under applicable law.\n11. Remedies. Employee acknowledges that a breach or threatened breach by Employee of this\nAgreement will give rise to irreparable injury to Company and that money damages will not be adequate relief for such\ninjury. Accordingly, Employee agrees that Company shall be entitled to obtain injunctive relief, including, but not\nlimited to, temporary restraining orders, preliminary injunctions and/or permanent injunctions, without having to post\nany bond or other security, to restrain or prohibit such breach or threatened breach, in addition to any other legal\nremedies which may be available. In addition to all other relief to which it shall be entitled, Company shall be entitled to\ncease all payments to which Employee would otherwise be entitled under Section 9 hereto; continue to enforce this\nAgreement; recover from Employee all payments made under Section 9 to the extent attributable to a time during which\nEmployee was in violation of the covenants for which payment was made; and recover from Employee all litigation\ncosts and attorneys’ fees incurred by Company in any action or proceeding relating to this Agreement in which Company\nprevails in any respect, including, but not limited to, any action or proceeding in which Company seeks enforcement of\nthis Agreement or seeks relief from Employee’s violation of this Agreement.\n12. Survival of Obligations. Employee acknowledges and agrees that Employee’s obligations under\nthis Agreement, including, without limitation, Employee’s non-disclosure and non-competition obligations, shall survive\nthe termination of Employee’s employment with Company, whether such termination is with or without cause and\nwhether it is voluntary or involuntary. Employee acknowledges and agrees that nothing in this Agreement alters the at-\nwill nature of Employee's employment and that either Company or Employee may terminate the employment\nrelationship at any time, with or without cause or notice. Employee further acknowledges and agrees\nthat: (a) Employee’s non-disclosure, non-disparagement, non-solicitation and non-competition covenants set forth in\nSections 2 and 7 of this Agreement shall be construed as independent covenants and that no breach of any contractual or\nlegal duty by Company shall be held sufficient to excuse or terminate Employee’s obligations or to preclude Company\nfrom obtaining injunctive relief or other remedies for Employee’s violation or threatened violation of such covenants,\nand (b) the existence of any claim or cause of action by Employee against Company, whether predicated on this\nAgreement or otherwise, shall not constitute a defense to Company's enforcement of Employee's obligations under\nSections 2 and 7 of this Agreement.\n13. Governing I.aw and Choice of Forum. This Agreement shall be construed and enforced in\naccordance with the laws of the State of Indiana, notwithstanding any state’s choice-of-law rules to the contrary. The\nparties agree that any legal action relating to this Agreement\n-9-\nshall be commenced and maintained exclusively before the United States District Court for the Northern District of\nIndiana if jurisdiction permits, or otherwise before any appropriate state court located in Kosciusko County,\nIndiana. The parties hereby submit to the jurisdiction of such courts and waive any right to challenge or otherwise object\nto personal jurisdiction or venue, in any action commenced or maintained in such courts. Language translations aside,\nthe English version shall govern.\n14. Enforcement. The parties agree that Zimmer, Inc., Zimmer US, Inc. and/or any or each of their\naffiliates, parents, or direct or indirect subsidiaries (including but not limited to Biomet, Inc. and its direct or indirect\nsubsidiaries), as well as any successor-in-interest to Zimmer, Inc., Zimmer US, Inc. and/or to any of their direct or\nindirect subsidiaries, affiliates, or parents are express and intended parties to and beneficiaries to this Agreement, with\nfull rights to enforce this Agreement independently or in conjunction with each other.\n15. Successors and Assigns. Company shall have the right to assign this Agreement, and, accordingly,\nthis Agreement shall inure to the benefit of, and may be enforced by, any and all successors and assigns of Company,\nincluding without limitation by asset assignment, stock sale, merger, consolidation or other corporate reorganization, and\nshall be binding on Employee. The services to be provided by Employee to Company are personal to Employee, and\nEmployee shall not have the right to assign Employee’s duties under this Agreement.\n16. Modification. This Agreement may not be amended, supplemented, or modified except by a written\ndocument signed by both Employee and a duly authorized officer of Company.\n17. No Waiver. The failure of Company to insist in any one or more instances upon performance of any\nprovision of this Agreement or to pursue its rights hereunder shall not be construed as a waiver of any such provisions or\nthe relinquishment of any such rights.\n18. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an\noriginal, but both of which when taken together will constitute one and the same agreement.\n19. Entire Agreement. This Agreement, including Recitals, constitutes the entire agreement of the\nparties with respect to the subjects specifically addressed herein, and supersedes any prior agreements, understandings,\nor representations, oral or written, on the subjects addressed herein. Notwithstanding the foregoing, to the extent the\nemployee has an existing non-competition, confidentiality, and/or non-solicitation agreement in favor of Company and\nhas breached or violated the terms thereof, Company may continue to enforce its rights and remedies under and pursuant\nto such existing agreement.\n-10-\nEmployee’s signature below indicates that Employee has read the entire Agreement, understands what Employee is\nsigning, and is signing the Agreement voluntarily. Employee agrees that Company advised Employee to consult with an\nattorney prior to signing the Agreement.\n“EMPLOYEE”\n(Employee Signature)\nPrinted Name:\nDate:\n“COMPANY”\nBy:\n \nPrinted Name:\n \nTitle:\n \nDate:\n \n-11-	EX-10.12 4 zbh-ex1012_349.htm EX-10.12\nExhibit 10.12\nCORPORATE EXECUTIVE CONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nThis Corporate Executive Confidentiality, Non-Competition and Non-Solicitation Agreement ("Agreement") is made by\nand between Zimmer, Inc., a corporation having its principal headquarters in Warsaw, Indiana, and\n("Employee").\nRecitals\nA.\nFor purposes of this Agreement, the term "Company" means Zimmer, Inc., Zimmer US, Inc. and/or\nany or each of their affiliates, parents, or direct or indirect subsidiaries (including but not limited to Biomet, Inc. and its\naffiliates, parents or direct or indirect subsidiaries), as well as any successor-in-interest to Zimmer, Inc., Zimmer US, Inc.\nand/or to any of their direct or indirect subsidiaries, affiliates, or parents.\nB.\nEmployee is employed or is being employed by Company in an executive and/or high-level\nmanagerial capacity in which Employee has or will have extensive access to trade secrets and confidential information of\nCompany, and/or is being offered certain equity incentives.\nC.\nCompany has offered Employee employment and/or other valuable consideration, which may include\nwithout limitation such consideration as a job promotion, an increase in compensation, and/or an equity award,\ncontingent upon Employee's entering into this Agreement.\nAgreement\nNOW, THEREFORE, in consideration of the foregoing recitals, the promises contained herein and other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and Employee\nagree to be legally bound as follows:\n1.\nAcknowledgements Employee acknowledges that Company is engaged in the highly competitive\nbusiness of the development, manufacture, distribution, and sale of orthopedic- and musculoskeletal-related medical and\nsurgical devices, products, and services, including but not limited to hip, knee, trauma, extremities, craniomaxillofacial,\nthoracic, dental rehabilitation, spine, microfixation, bone healing, bone cement, surgical, sports medicine, orthopedic\ndiagnostic (including unique diagnostic products developed for or by Company) and/or biologics devices, products,\nprocesses and services, and that Employee serves or will serve in an executive and/or high-level managerial capacity for\nCompany and in that capacity Employee has and/or will have access to and has and/or will gain knowledge of substantial\ntrade secrets and confidential information of Company.\n2.\nNon-Disclosure and Ownership of Confidential Information. Employee acknowledges that\nConfidential Information is a valuable, special, and unique asset of Company, and solely the property of Company, and\nagrees to the following; provided, however, that this policy does not, in any manner, prevent employees from filing\na\ncomplaint with, providing information to, or participating in an investigation conducted by, the Securities and Exchange\nCommission, the United States Equal Opportunity Commission or any other governmental or law enforcement agency.\n(a)\nConfidential Information Defined. The term "Confidential Information" includes, but is\nnot\nlimited to, any and all of Company's trade secrets, confidential and proprietary information and all other information and\ndata of Company that is not generally known to the public or other third parties who could derive economic value from\nits use or disclosure. Confidential Information includes, without limitation, technical information such as product\nspecifications, compounds, formulas, improvements, discoveries, developments, designs, inventions, techniques, new\nproducts and surgical training methods, and research and development information; confidential business methods and\nprocesses; business plans and strategies; marketing plans and strategies; non-public financial information including\nbudgets, sales data, sales forecasts, sales quotas, and information regarding profits or losses; office optimization and\nlogistics\ninformation;\ninformation\npertaining\nto\ncurrent\nand\nprospective\ncustomers;\ninformation\npertaining\nto\ndistributors\nand sales structures; pricing information; discount schedules; costing information; personnel information; compensation\nstructure, schedules and plans; and information about current and prospective products or services, whether or not\nreduced to writing or other tangible medium of expression, including work product created by Employee in rendering\nservices for Company.\n(b)\nNon-Disclosure of Confidential Information. During Employee's employment with Company\nand thereafter, Employee will not disclose, transfer, or use (or seek to induce others to disclose, transfer, or use) any\nConfidential Information for any purpose other than( i) disclosure to authorized employees and agents of Company who\nare bound to maintain the confidentiality of the Confidential Information; (ii) for authorized purposes during the course\nof Employee's employment in furtherance of Company's business; and/or (iii) as specifically allowed or required under\napplicable law. Employee's non-disclosure obligations shall continue as long as the Confidential Information remains\nconfidential and shall not apply to information that becomes generally known to the public through no fault or action of\nEmployee.\nThe\nFederal\nDefend\nTrade\nSecrets\nAct\nprovides\nthat\nindividuals\nmay\nnot\nbe\nheld\ncriminally\nor\ncivilly\nliable\nunder any federal or state trade secret law for the disclosure of a trade secret that is made (a) in confidence to a federal,\nstate or local government official, either directly or indirectly, or to an attorney if such disclosure is made solely for the\npurpose of reporting or investigating a suspected violation of law or for pursuing an anti-retaliation lawsuit; or (b) in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal and the individual\ndoes not disclose the trade secret except pursuant to a court order.\n(c)\nProtection of Confidential Information. Employee will notify Company in writing\nof\nany\ncircumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. Employee\nwill use Employee's best efforts to protect Confidential Information from unauthorized disclosure, transfer, or\nuse. Employee will implement and abide by all procedures adopted by Company to prevent unauthorized disclosure,\ntransfer, or use of Confidential Information. Notwithstanding the above requirements, nothing in this Agreement shall\nrestrict Employee's right to make disclosures specifically allowed or required under applicable law.\n-2-\n3.\nOwnership of Intellectual Property.\n(a)\nInvention Defined. The term "Invention" includes, but is not limited to ideas, programs,\nprocesses, systems, intellectual property, works of authorship, copyrightable materials, discoveries, and/or improvements\nwhich Employee discovers, invents, originates, develops, makes, authors, or conceives alone or in conjunction with\nothers during Employee's employment with Company and/or within six (6) months after Employee's employment ends\nwhich relate to Company's present or future business. An Invention is covered by this Agreement regardless of whether\n(i) Employee conceived of the Invention in the scope of Employee's employment; (ii) the Invention is patentable; or (iii)\nCompany takes any action to commercialize or develop the Invention.\n(b)\nOwnership of Inventions. Inventions are solely the property of Company. Employee agrees that\nby operation of law and/or the effect of this Agreement Employee does not have any rights, title, or interest in any\nInventions. Notwithstanding, Employee may be recognized as the inventor of an Invention without retaining any other\nrights associated therewith.\n(c)\nDisclosure and Assignment of Inventions. Employee hereby assigns to Company all right, title\nand interest Employee may have in any Inventions that are discovered, invented, originated, developed, made, authored,\nor conceived by Employee (whether alone or with others) during Employee's employment with Company and/or within\nsix (6) months after Employee's employment ends which relate to Company's present or future business. Employee\nagrees to: (i) promptly disclose all such Inventions in writing to Company; (ii) keep complete and accurate records of all\nsuch Inventions, which records shall be Company property and shall be retained on Company premises; and (iii) execute\nsuch documents and do such other acts as may be necessary in the opinion of Company to establish and preserve\nCompany's property rights in all such Inventions. This section shall not apply to any Invention for which no equipment,\nsupplies, facility or trade secret information of Company was used and which was developed entirely on Employee's\nown time, and (1) which does not relate (a) directly to the business of Company, or (b) to Company's actual or\ndemonstrably anticipated research or development, and (2) which does not result from any work performed by Employee\nfor Company.\n(d)\nWorks of Authorship. All written, graphic or recorded material and all other works of\nauthorship fixed in a tangible medium of expression made or created by Employee, solely or jointly with others, during\nEmployee's employment with Company and relating to Company's business, actual or contemplated, shall be the\nexclusive property of Company (collectively "Works"). Company will have the exclusive right to copyright such\nWorks. Employee agrees that if any Work created while employed by Company, whether or not created at the direction\nof Company, is copyrightable, such Work will be a "work made for hire," as that term is defined in the copyright laws of\nthe United States. If, for any reason, any copyrightable Works created by Employee are excluded from that definition,\nEmployee hereby assigns and conveys to Company all right, title and interest (including any copyright and renewals)\nin\nsuch Works.\n(e)\nAttribution and Use of Works and Inventions; Waiver of Assertion of "Moral" Rights in\nInventions and Works. Employee agrees that Company and its licensees are not\n-3-\nrequired to designate Employee as author, inventor or developer of any Works or Inventions when distributed\nor\notherwise. Employee hereby waives, and agrees not to assert, any "moral" rights in any Inventions and\nWorks. Employee agrees that Company and its licensees shall have sole discretion with regard to how and for what\npurposes any Inventions or Works are used or distributed.\n(f)\nEmployee Cooperation in Establishment of Company ProprietaryR Employee will sign\ndocuments of assignment, declarations and other documents and take all other actions reasonably required by Company,\nat Company's expense, to perfect and enforce any of its proprietary rights. In the event Company is unable, for any\nreason whatsoever, to secure Employee's signature to any lawful or necessary documents required to apply for,\nprosecute, perfect, or assign any United States or foreign application for Letters Patent, trademark, copyright registration,\nor\nother\nfiling\nto\nprotect\nany\nInvention\nor\nWork,\nEmployee\nhereby\nirrevocably\ndesignates\nand\nappoints\nCompany\nand\nits\nduly authorized officers and agents as Employee's agent and attorney in fact, to act for and on Employee's behalf, to\nexecute and file any such application, registration or other filing, and to do all other lawfully permitted acts to further the\nprosecution, issuance or assignment of Letters Patent or other protections on such Inventions, or registrations for\ntrademark or copyright or other protections on such Works, with the same force and effect as if executed by Employee.\n4.\nReturn of Confidential Information and Company Property. Immediately upon termination of\nEmployee's employment with Company, Employee shall return to Company all of Company's property relating to\nCompany's business, including without limitation all of Company's property which is in the possession, custody, or\ncontrol of Employee such as Confidential Information, documents, hard copy files, copies of documents and electronic\ninformation/files, and equipment (e.g., computers and mobile phones).\n5.\nObligations to Other Entities or Persons. Employee warrants that Employee is not bound by the\nterms\nof\na\nconfidentiality agreement or any other legal obligation which would either preclude or limit Employee\nfrom\ndisclosing or using any of Employee's ideas, inventions, discoveries or other information or otherwise fulfilling\nEmployee's obligations to Company. While employed by Company, Employee shall not disclose or use any confidential\ninformation belonging to another entity or other person.\n6.\nConflict of Interest and Duty of Loyalty.. During Employee's employment with Company,\nEmployee shall not engage, directly or indirectly, in any activity, employment or business venture, whether or not for\nremuneration, that (i) is competitive with Company's business; (ii) deprives or potentially could deprive Company of any\nbusiness opportunity; (iii) conflicts or potentially could conflict with Company's business interests; or (iv) is otherwise\ndetrimental to Company, including but not limited to preparations to engage in any of the foregoing activities.\n-4-\n7.\nRestrictive Covenants. Employee agrees to, and covenants to comply with, each of the following\nseparate and divisible restrictions:\n(a)\nDefinitions.\n(1)\n"Competing Product" is defined as any implant, device, or medical product(s), service(s),\ninstrument(s) or supplies that is or are the same as, related to, or similar to any product, process or service that Company\nis researching, developing, manufacturing, distributing, selling and/or providing at the time of Employee's separation\nfrom employment with Company (including, but not limited to, any product or service Company's Hip, Knee, Trauma,\nExtremities, Craniomaxillofacial Thoracic, Biologics, Surgical, Sports Medicine, Microfixation, Bone Healing, Bone\nCement, Orthopedic Diagnostic, Spine and/or Dental division is researching, developing, manufacturing, distributing,\nselling and/or providing at the time of Employee's separation from employment with Company).\n(2)\n"Competing Organization" is defined as any organization that researches, develops,\nmanufactures, markets, distributes and/or sells one or more Competing Products. A Competing Organization is\ndiversified if it operates multiple, independently operating business divisions, units, lines or segments some of which do\nnot research, develop, manufacture, market, distribute and/or sell any Competing Products.\n(3)\n"Prohibited Capacity" is defined as (a) any same or similar capacity to that held by\nEmployee at any time during Employee's last two (2) years of employment with Company; (b) any executive or\nmanagerial capacity; or (c) any capacity in which Employee's knowledge of Confidential Information and/or Inventions\nwould render Employee's assistance to a Competing Organization a competitive advantage.\n(4)\n"Restricted Geographic Area" is defined as all countries, territories, parishes, municipalities\nand states in which Company is doing business or is selling its products at the time of termination of Employee's\nemployment with Company, including but not limited to every parish and municipality in the state of\nLouisiana. Employee acknowledges that this geographic scope is reasonable given Employee's position with Company,\nthe international scope of Company's business; and the fact that Employee could compete with Company from anywhere\nCompany does business.\n(5)\n"Restricted Period" is defined as the date Employee executes this Agreement, continuing\nthrough the eighteen (18) months after the Employee's last day of employment with Company unless otherwise extended\nby Employee's breach of this Agreement. The running time on the Restricted Period shall be suspended during any\nperiod in which Employee is in violation of any of the restrictive covenants set forth herein, and all restrictions shall\nautomatically be extended by the period Employee was in violation of any such restrictions.\n(6)\n"Customer" is defined as any person or entity with respect to whom, as of the date of\nEmployee's separation from Company employment or at any time during the two years prior to such separation,\nCompany sold or provided any products and/or services.\n(7)\n"Active Prospect" is defined as any person or entity that Company individually and\nspecifically marketed to and/or held discussions with regarding the distribution\n-5-\nand/or sale of any of Company's products, processes or services at any time during the last six (6) months of Employee's\nemployment with Company.\n(8)\n"Severance Benefit Period" is the period of time represented by the total amount of any\nseverance benefit offered to Employee (whether or not actually paid). By way of illustration, if Employee were offered\na\nlump-sum severance benefit equivalent to ten (10) weeks of Employee's final base pay upon termination of his or her\nemployment with the Company, Employee's Severance Benefit Period would be 10 weeks, whether or not Employee\nactually fulfilled all requirements of receiving, and did receive, any portion of the severance benefit.\n(b)\nRestrictive Covenants. During the Restricted Period, Employee agrees to be bound by each of\nthe following independent and divisible restrictions:\n(1)\nCovenant Not to Compete.\n(A)\nEmployee will not, within the Restricted Geographic Area, be employed by, work\nfor, consult with, provide services to, or lend assistance to any Competing Organization in a Prohibited Capacity.\n(B) Employee may be employed by, work for, consult with, provide services to, or\nlend assistance to a Competing Organization provided that: (i) the Competing Organization's business is diversified;\n(ii) the part of the Competing Organization's business with which Employee will be affiliated would not, evaluated on\na\nstand-alone basis, be a Competing Organization; (iii) Employee's affiliation with the Competing Organization does not\ninvolve any Competing Products; (iv) Employee provides Company a written description of Employee's anticipated\nactivities on behalf of the Competing Organization which includes, without limitation, an assurance satisfactory to\nCompany that Employee's affiliation with the Competing Organization does not constitute a Prohibited Capacity; and\n(v)\nEmployee's affiliation with the Competing Organization does not constitute a competitive disadvantage to Company.\n(2)\nCovenant Not to Solicit Customers or Active Prospects. Employee will not, directly or\nindirectly, (i) provide, sell, or market; (ii) assist in the provision, selling or marketing of; or (iii) attempt to provide, sell\nor market any Competing Products to any of Company's Customers or Active Prospects located in the Restricted\nGeographic Area.\n(3)\nCovenant Not to Interfere With Business Relationships. Employee will not, within the\nRestricted Geographic Area, urge, induce or seek to induce any of Company's independent contractors, subcontractors,\ndistributors, brokers, consultants, sales representatives, customers, vendors, suppliers or any other person or entity with\nwhom Company has a business relationship at the time of Employee's separation from Company employment to\nterminate its or their relationship with, or representation of, Company or to cancel, withdraw, reduce, limit or in any\nmanner modify any such person's or entity's business with, or representation of, Company\n(4)\nCovenant Not to Solicit Company Employees. Employee will not employ, solicit for\nemployment, or advise any other person or entity to employ or solicit for employment, any individual employed by\nCompany at the time of Employee's separation from Company\n-6-\nemployment, or otherwise directly or indirectly induce or entice any such employee to leave his/her employment with\nCompany.\n(5)\nCovenant Not to Disparage Company.. Employee will not make or publish any disparaging\nor derogatory statements about Company; about Company's products, processes, or services; or about Company's past,\npresent and future officers, directors, employees, attorneys and agents. Disparaging or derogatory statements include,\nbut are not limited to, negative statements regarding Company's business or other practices; provided, however, nothing\nherein shall prohibit Employee from providing any information as may be compelled by law or legal process.\n8.\nReasonableness of Terms. Employee acknowledges and agrees that the restrictive covenants\ncontained in this Agreement restrict Employee from engaging in activities for a competitive purpose and are reasonably\nnecessary to protect Company's legitimate interests in Confidential Information, Inventions, and goodwill. Additionally,\nEmployee acknowledges and agrees that the restrictive covenants are reasonable in all respects, including, but not\nlimited to, temporal duration, scope of prohibited activities and geographic area. Employee further acknowledges\nand\nagrees that the restrictive covenants set forth in this Agreement will not pose unreasonable hardship on Employee and\nthat Employee will have a reasonable opportunity to earn an equivalent livelihood without violating any provision of this\nAgreement.\n9.\nNon-Competition Period Payments.\n(a)\nEligibility and Amount. In the event of Employee's involuntary separation from employment\nwith the Company for a reason that renders Employee eligible for benefits under the terms of the Company's Severance\nPlan, then to the extent Employee is denied, solely because of the restrictive covenant provisions of Section 7 of this\nAgreement, a specific full-time or part-time employment, consulting, or other position that would otherwise be offered to\nEmployee by a Competing Organization, and provided Employee satisfies all conditions stated herein, then upon\nexpiration of Employee's Severance Benefit Period, Company will make monthly payments to Employee for each month\nEmployee remains unemployed through the end of the Restricted Period. These monthly payments shall equal the lesser\nof Employee's monthly base pay at the time of Employee's separation from Company employment (exclusive of bonus\nand other extra compensation and any other employee benefits) or the monthly compensation that would have been\noffered to Employee by the Competing Organization. This Section 9 will not apply if Employee leaves employment\nwith the Company voluntarily or if Company terminates Employee's employment for a reason or reasons that render\nEmployee ineligible for benefits under terms of the Company's Severance Plan.\n(b)\nVerification of Eligibility. for Non-Competition Period Payments. To qualify for payments under\nthis Section 9, Employee must provide Company detailed written documentation supporting eligibility for payment,\nincluding, at a minimum, (i) the name and location of the Competing Organization that would have employed Employee\nbut for the provisions of Section 7 of this Agreement, (ii) the title, nature, and detailed job responsibilities of the\nemployment position with the Competing Organization that Employee was denied, (iii) the date Employee was denied\nthe employment position, and (iv) the name and contact information of a managerial employee at the Competing\nOrganization who has sufficient authority to confirm that Employee\n-7-\nwas denied this specific employment position with the Competing Organization solely because Employee is subject\nto\nthe provisions of Section 7 of this Agreement (the "eligibility documentation") Upon receipt of the eligibility\ndocumentation, Company will determine eligibility for payment and, if eligibility is established, payments\nwill\ncommence as of the date of Company's receipt of the eligibility documentation or the date Employee's Severance\nBenefit Period ends, whichever is later.\n(c)\nObligation to Pursue Replacement Employment and Verification of Continued Eligibility for\nNon-Competition Period Payments. Employee is obligated to diligently seek and pursue replacement employment that\ndoes not violate Section 7 of this Agreement ("replacement employment") during any period in which Employee seeks\nand/or accepts payment from Company under this Section 9. After eligibility for non-competition period payments is\nestablished,\nEmployee will, on or before the 15th day of each month of eligibility for continued payments, submit\nto\nCompany a written statement (i) identifying by name and address all prospective employers with whom Employee has\napplied or inquired about employment; (ii) identifying positions sought with each listed employer and specific actions\ntaken in seeking each position; (iii) describing all other efforts made to obtain replacement employment; and\n(iv) describing any offers of employment received, including the name of the employer; the nature, title, and\ncompensation terms of the position offered; the actual or anticipated start date if the offer has been accepted; and the\nreason(s) for declining if the offer was declined.\n(d)\nEffect of Replacement Employment on Non-Competition Period Payments. If Employee is\ndenied a specific employment, consulting or other such position with a Competing Organization solely because of the\nrestrictive covenant provisions of Section 7 of this Agreement but obtains other work for compensation, and the monthly\ncompensation (including base pay, commissions, incentive compensation, bonuses, fees and other compensation) for the\nreplacement work is less than Employee's monthly base pay at the time of Employee's separation from employment with\nCompany, Company agrees to pay Employee the difference for each such month through the end of the Restricted\nPeriod, again upon expiration of any severance benefits which Employee was offered and provided Employee satisfies\nall conditions stated herein, with monthly payments not to exceed the amount to which Employee is entitled under\nsubsection (a) of this Section 9. Employee shall submit to Company payroll records and/or any other records reasonably\nrequested by Company showing all compensation received by Employee from the replacement work as a condition of\nCompany's payment of Non-Competition Period Payments covering any period of time when Employee performs work\nfor compensation.\n(e)\nCompany's Right To Provide Release of Obligations in Lieu of Non-Competition Period\nPayments. Notwithstanding any of the foregoing provisions of this Section 9, Company reserves the right to release\nEmployee from Employee's obligations under Section 7 of this Agreement at any time during the Restricted Period, in\nfull or in sufficient part to allow Employee to accept an opportunity that would otherwise be prohibited under this\nAgreement, at which time Company's payment obligations under this Section 9 shall cease immediately and Employee\nshall not be entitled to any further such payments or compensation.\n10.\nSeverability, Modification of Restrictions. The covenants and restrictions in this Agreement are\nseparate and divisible, and to the extent any clause, portion or section of this Agreement is determined to be\nunenforceable or invalid for any reason, Company and Employee\n-8-\nacknowledge and agree that such unenforceability or invalidity shall not affect the enforceability or validity of the\nremainder of the Agreement. If any particular covenant, provision or clause of this Agreement is determined to be\nunreasonable or unenforceable for any reason, including, without limitation, temporal duration, scope of prohibited\nactivity, and/or scope of geographic area, Company and Employee acknowledge and agree that such covenant, provision\nor clause shall automatically be deemed reformed to have the closest effect permitted by applicable law to the original\nform and shall be given effect and enforced as so reformed to whatever extent would be reasonable and enforceable\nunder applicable law. The parties agree that any court interpreting the provisions of this Agreement shall have the\nauthority, if necessary, to reform any such provision to make it enforceable under applicable law.\n11.\nRemedies. Employee acknowledges that a breach or threatened breach by Employee of this\nAgreement\nwill\ngive\nrise\nto\nirreparable\ninjury\nto\nCompany\nand\nthat\nmoney\ndamages\nwill\nnot\nbe\nadequate\nrelief\nfor\nsuch\ninjury. Accordingly, Employee agrees that Company shall be entitled to obtain injunctive relief, including, but not\nlimited to, temporary restraining orders, preliminary injunctions and/or permanent injunctions, without having to post\nany bond or other security, to restrain or prohibit such breach or threatened breach, in addition to any other legal\nremedies which may be available. In addition to all other relief to which it shall be entitled, Company shall be entitled to\ncease all payments to which Employee would otherwise be entitled under Section 9 hereto; continue to enforce this\nAgreement; recover from Employee all payments made under Section 9 to the extent attributable to a time during which\nEmployee was in violation of the covenants for which payment was made; and recover from Employee all litigation\ncosts and attorneys' fees incurred by Company in any action or proceeding relating to this Agreement in which Company\nprevails in any respect, including, but not limited to, any action or proceeding in which Company seeks enforcement of\nthis Agreement or seeks relief from Employee's violation of this Agreement.\n12.\nSurvival of Obligations. Employee acknowledges and agrees that Employee's obligations under\nthis\nAgreement,\nincluding,\nwithout\nlimitation,\nEmployee's\nnon-disclosure\nand\nnon-competition\nobligations,\nshall\nsurvive\nthe termination of Employee's employment with Company, whether such termination is with or without cause and\nwhether it is voluntary or involuntary. Employee acknowledges and agrees that nothing in this Agreement alters the at-\nwill nature of Employee's employment and that either Company or Employee may terminate the employment\nrelationship at any time, with or without cause or notice. Employee further acknowledges and agrees\nthat: (a) Employee's non-disclosure, non-disparagement, non-solicitation and non-competition covenants set forth in\nSections 2 and 7 of this Agreement shall be construed as independen covenants and that no breach of any contractual or\nlegal duty by Company shall be held sufficient to excuse or terminate Employee's obligations or to preclude Company\nfrom obtaining injunctive relief or other remedies for Employee's violation or threatened violation of such covenants,\nand (b) the existence of any claim or cause of action by Employee against Company, whether predicated on this\nAgreement or otherwise, shall not constitute a defense to Company's enforcement of Employee's obligations under\nSections 2 and 7 of this Agreement.\n13.\nGoverning Law and Choice of Forum. This Agreement shall be construed and enforced in\naccordance with the laws of the State of Indiana, notwithstanding any state's choice-of-law rules to the contrary. The\nparties agree that any legal action relating to this Agreement\n-9-\nshall be commenced and maintained exclusively before the United States District Court for the Northern District of\nIndiana if jurisdiction permits, or otherwise before any appropriate state court located in Kosciusko County,\nIndiana. The parties hereby submit to the jurisdiction of such courts and waive any right to challenge or otherwise object\nto personal jurisdiction or venue, in any action commenced or maintained in such courts. Language translations aside,\nthe English version shall govern.\n14.\nEnforcement. The parties agree that Zimmer, Inc., Zimmer US, Inc. and/or any or each of their\naffiliates, parents, or direct or indirect subsidiaries (including but not limited to Biomet, Inc. and its direct or indirect\nsubsidiaries), as well as any successor-in-interest to Zimmer, Inc., Zimmer US, Inc. and/or to any of their direct or\nindirect subsidiaries, affiliates, or parents are express and intended parties to and beneficiaries to this Agreement, with\nfull rights to enforce this Agreement independently or in conjunction with each other.\n15.\nSuccessors and Assigns. Company shall have the right to assign this Agreement, and, accordingly,\nthis Agreement shall inure to the benefit of, and may be enforced by, any and all successors and assigns of Company,\nincluding without limitation by asset assignment, stock sale, merger, consolidation or other corporate reorganization, and\nshall be binding on Employee. The services to be provided by Employee to Company are personal to\nEmployee,\nand\nEmployee shall not have the right to assign Employee's duties under this Agreement.\n16.\nModification. This Agreement may not be amended, supplemented, or modified except by a written\ndocument signed by both Employee and a duly authorized officer of Company.\n17.\nNo Waiver. The failure of Company to insist in any one or more instances upon performance of any\nprovision of this Agreement or to pursue its rights hereunder shall not be construed as a waiver of any such provisions or\nthe relinquishment of any such rights.\n18.\nCounterparts. This Agreement may be executed in counterparts, each of which shall be deemed an\noriginal, but both of which when taken together will constitute one and the same agreement.\n19.\nEntire Agreement. This Agreement, including Recitals, constitutes the entire agreement of the\nparties with respect to the subjects specifically addressed herein, and supersedes any prior agreements, understandings,\nor representations, oral or written, on the subjects addressed herein. Notwithstanding the foregoing, to the extent the\nemployee has an existing non-competition, confidentiality, and/or non-solicitation agreement in favor of Company and\nhas breached or violated the terms thereof, Company may continue to enforce its rights and remedies under and pursuant\nto such existing agreement.\n-10-\nEmployee's signature below indicates that Employee has read the entire Agreement, understands what Employee\nis\nsigning, and is signing the Agreement voluntarily. Employee agrees that Company advised Employee to consult with an\nattorney prior to signing the Agreement.\n"EMPLOYEE"\n(Employee Signature)\nPrinted Name:\nDate:\n"COMPANY"\nBy:\nPrinted Name:\nTitle:\nDate:\n-11-	EX-10.12 4 zbh-ex1012_349.htm EX-10.12\nExhibit 10.12\nCORPORATE EXECUTIVE CONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nThis Corporate Executive Confidentiality, Non-Competition and Non-Solicitation Agreement (“Agreement”) is made by\nand between Zimmer, Inc., a corporation having its principal headquarters in Warsaw, Indiana, and\n______________________________\n(“Employee”).\nRecitals\nA.\nFor purposes of this Agreement, the term "Company" means Zimmer, Inc., Zimmer US, Inc. and/or\nany or each of their affiliates, parents, or direct or indirect subsidiaries (including but not limited to Biomet, Inc. and its\naffiliates, parents or direct or indirect subsidiaries), as well as any successor-in-interest to Zimmer, Inc., Zimmer US, Inc.\nand/or to any of their direct or indirect subsidiaries, affiliates, or parents.\nB.\nEmployee is employed or is being employed by Company in an executive and/or high-level\nmanagerial capacity in which Employee has or will have extensive access to trade secrets and confidential information of\nCompany, and/or is being offered certain equity incentives.\nC.\nCompany has offered Employee employment and/or other valuable consideration, which may include\nwithout limitation such consideration as a job promotion, an increase in compensation, and/or an equity award,\ncontingent upon Employee's entering into this Agreement.\nAgreement\nNOW, THEREFORE, in consideration of the foregoing recitals, the promises contained herein and other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and Employee\nagree to be legally bound as follows:\n1.\nAcknowledgements. Employee acknowledges that Company is engaged in the highly competitive\nbusiness of the development, manufacture, distribution, and sale of orthopedic- and musculoskeletal-related medical and\nsurgical devices, products, and services, including but not limited to hip, knee, trauma, extremities, craniomaxillofacial,\nthoracic, dental rehabilitation, spine, microfixation, bone healing, bone cement, surgical, sports medicine, orthopedic\ndiagnostic (including unique diagnostic products developed for or by Company) and/or biologics devices, products,\nprocesses and services, and that Employee serves or will serve in an executive and/or high-level managerial capacity for\nCompany and in that capacity Employee has and/or will have access to and has and/or will gain knowledge of substantial\ntrade secrets and confidential information of Company.\n2.\nNon-Disclosure and Ownership of Confidential Information. Employee acknowledges that\nConfidential Information is a valuable, special, and unique asset of Company, and solely the property of Company, and\nagrees to the following; provided, however, that this policy does not, in any manner, prevent employees from filing a\ncomplaint with, providing information to, or participating in an investigation conducted by, the Securities and Exchange\nCommission, the United States Equal Opportunity Commission or any other governmental or law enforcement agency.\n(a)\nConfidential Information Defined. The term “Confidential Information” includes, but is not\nlimited to, any and all of Company’s trade secrets, confidential and proprietary information and all other information and\ndata of Company that is not generally known to the public or other third parties who could derive economic value from\nits use or disclosure. Confidential Information includes, without limitation, technical information such as product\nspecifications, compounds, formulas, improvements, discoveries, developments, designs, inventions, techniques, new\nproducts and surgical training methods, and research and development information; confidential business methods and\nprocesses; business plans and strategies; marketing plans and strategies; non-public financial information including\nbudgets, sales data, sales forecasts, sales quotas, and information regarding profits or losses; office optimization and\nlogistics information; information pertaining to current and prospective customers; information pertaining to distributors\nand sales structures; pricing information; discount schedules; costing information; personnel information; compensation\nstructure, schedules and plans; and information about current and prospective products or services, whether or not\nreduced to writing or other tangible medium of expression, including work product created by Employee in rendering\nservices for Company.\n(b)\nNon-Disclosure of Confidential Information. During Employee's employment with Company\nand thereafter, Employee will not disclose, transfer, or use (or seek to induce others to disclose, transfer, or use) any\nConfidential Information for any purpose other than( i) disclosure to authorized employees and agents of Company who\nare bound to maintain the confidentiality of the Confidential Information; (ii) for authorized purposes during the course\nof Employee’s employment in furtherance of Company’s business; and/or (iii) as specifically allowed or required under\napplicable law. Employee's non-disclosure obligations shall continue as long as the Confidential Information remains\nconfidential and shall not apply to information that becomes generally known to the public through no fault or action of\nEmployee. The Federal Defend Trade Secrets Act provides that individuals may not be held criminally or civilly liable\nunder any federal or state trade secret law for the disclosure of a trade secret that is made (a) in confidence to a federal,\nstate or local government official, either directly or indirectly, or to an attorney if such disclosure is made solely for the\npurpose of reporting or investigating a suspected violation of law or for pursuing an anti-retaliation lawsuit; or (b) in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal and the individual\ndoes not disclose the trade secret except pursuant to a court order.\n(c)\nProtection of Confidential Information. Employee will notify Company in writing of any\ncircumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. Employee\nwill use Employee's best efforts to protect Confidential Information from unauthorized disclosure, transfer, or\nuse. Employee will implement and abide by all procedures adopted by Company to prevent unauthorized disclosure,\ntransfer, or use of Confidential Information. Notwithstanding the above requirements, nothing in this Agreement shall\nrestrict Employee's right to make disclosures specifically allowed or required under applicable law.\n-2-\n3.\nOwnership of Intellectual Property.\n(a)\nInvention Defined. The term “Invention” includes, but is not limited to ideas, programs,\nprocesses, systems, intellectual property, works of authorship, copyrightable materials, discoveries, and/or improvements\nwhich Employee discovers, invents, originates, develops, makes, authors, or conceives alone or in conjunction with\nothers during Employee’s employment with Company and/or within six (6) months after Employee’s employment ends\nwhich relate to Company’s present or future business. An Invention is covered by this Agreement regardless of whether\n(i) Employee conceived of the Invention in the scope of Employee’s employment; (ii) the Invention is patentable; or (iii)\nCompany takes any action to commercialize or develop the Invention.\n(b)\nOwnership of Inventions. Inventions are solely the property of Company. Employee agrees that\nby operation of law and/or the effect of this Agreement Employee does not have any rights, title, or interest in any\nInventions. Notwithstanding, Employee may be recognized as the inventor of an Invention without retaining any other\nrights associated therewith.\n(c)\nDisclosure and Assignment of Inventions. Employee hereby assigns to Company all right, title\nand interest Employee may have in any Inventions that are discovered, invented, originated, developed, made, authored,\nor conceived by Employee (whether alone or with others) during Employee’s employment with Company and/or within\nsix (6) months after Employee’s employment ends which relate to Company’s present or future business. Employee\nagrees to: (i) promptly disclose all such Inventions in writing to Company; (ii) keep complete and accurate records of all\nsuch Inventions, which records shall be Company property and shall be retained on Company premises; and (iii) execute\nsuch documents and do such other acts as may be necessary in the opinion of Company to establish and preserve\nCompany’s property rights in all such Inventions. This section shall not apply to any Invention for which no equipment,\nsupplies, facility or trade secret information of Company was used and which was developed entirely on Employee’s\nown time, and (1) which does not relate (a) directly to the business of Company, or (b) to Company’s actual or\ndemonstrably anticipated research or development, and (2) which does not result from any work performed by Employee\nfor Company.\n(d)\nWorks of Authorship. All written, graphic or recorded material and all other works of\nauthorship fixed in a tangible medium of expression made or created by Employee, solely or jointly with others, during\nEmployee’s employment with Company and relating to Company’s business, actual or contemplated, shall be the\nexclusive property of Company (collectively “Works”). Company will have the exclusive right to copyright such\nWorks. Employee agrees that if any Work created while employed by Company, whether or not created at the direction\nof Company, is copyrightable, such Work will be a “work made for hire,” as that term is defined in the copyright laws of\nthe United States. If, for any reason, any copyrightable Works created by Employee are excluded from that definition,\nEmployee hereby assigns and conveys to Company all right, title and interest (including any copyright and renewals) in\nsuch Works.\n(e)\nAttribution and Use of Works and Inventions; Waiver of Assertion of “Moral” Rights in\nInventions and Works. Employee agrees that Company and its licensees are not\n-3-\nrequired to designate Employee as author, inventor or developer of any Works or Inventions when distributed or\notherwise. Employee hereby waives, and agrees not to assert, any “moral” rights in any Inventions and\nWorks. Employee agrees that Company and its licensees shall have sole discretion with regard to how and for what\npurposes any Inventions or Works are used or distributed.\n(f)\nEmployee Cooperation in Establishment of Company Proprietary Rights. Employee will sign\ndocuments of assignment, declarations and other documents and take all other actions reasonably required by Company,\nat Company’s expense, to perfect and enforce any of its proprietary rights. In the event Company is unable, for any\nreason whatsoever, to secure Employee’s signature to any lawful or necessary documents required to apply for,\nprosecute, perfect, or assign any United States or foreign application for Letters Patent, trademark, copyright registration,\nor other filing to protect any Invention or Work, Employee hereby irrevocably designates and appoints Company and its\nduly authorized officers and agents as Employee’s agent and attorney in fact, to act for and on Employee’s behalf, to\nexecute and file any such application, registration or other filing, and to do all other lawfully permitted acts to further the\nprosecution, issuance or assignment of Letters Patent or other protections on such Inventions, or registrations for\ntrademark or copyright or other protections on such Works, with the same force and effect as if executed by Employee.\n4.\nReturn of Confidential Information and Company Property. Immediately upon termination of\nEmployee’s employment with Company, Employee shall return to Company all of Company’s property relating to\nCompany’s business, including without limitation all of Company’s property which is in the possession, custody, or\ncontrol of Employee such as Confidential Information, documents, hard copy files, copies of documents and electronic\ninformation/files, and equipment (e.g., computers and mobile phones).\n5.\nObligations to Other Entities or Persons. Employee warrants that Employee is not bound by the\nterms of a confidentiality agreement or any other legal obligation which would either preclude or limit Employee from\ndisclosing or using any of Employee’s ideas, inventions, discoveries or other information or otherwise fulfilling\nEmployee’s obligations to Company. While employed by Company, Employee shall not disclose or use any confidential\ninformation belonging to another entity or other person.\n6.\nConflict of Interest and Duty of Loyalty. During Employee’s employment with Company,\nEmployee shall not engage, directly or indirectly, in any activity, employment or business venture, whether or not for\nremuneration, that (i) is competitive with Company’s business; (ii) deprives or potentially could deprive Company of any\nbusiness opportunity; (iii) conflicts or potentially could conflict with Company’s business interests; or (iv) is otherwise\ndetrimental to Company, including but not limited to preparations to engage in any of the foregoing activities.\n-4-\n7.\nRestrictive Covenants. Employee agrees to, and covenants to comply with, each of the following\nseparate and divisible restrictions:\n(a)\nDefinitions.\n(1)\n“Competing Product” is defined as any implant, device, or medical product(s), service(s),\ninstrument(s) or supplies that is or are the same as, related to, or similar to any product, process or service that Company\nis researching, developing, manufacturing, distributing, selling and/or providing at the time of Employee’s separation\nfrom employment with Company (including, but not limited to, any product or service Company’s Hip, Knee, Trauma,\nExtremities, Craniomaxillofacial, Thoracic, Biologics, Surgical, Sports Medicine, Microfixation, Bone Healing, Bone\nCement, Orthopedic Diagnostic, Spine and/or Dental division is researching, developing, manufacturing, distributing,\nselling and/or providing at the time of Employee's separation from employment with Company).\n(2)\n“Competing Organization” is defined as any organization that researches, develops,\nmanufactures, markets, distributes and/or sells one or more Competing Products. A Competing Organization is\ndiversified if it operates multiple, independently operating business divisions, units, lines or segments some of which do\nnot research, develop, manufacture, market, distribute and/or sell any Competing Products.\n(3)\n“Prohibited Capacity” is defined as (a) any same or similar capacity to that held by\nEmployee at any time during Employee's last two (2) years of employment with Company; (b) any executive or\nmanagerial capacity; or (c) any capacity in which Employee’s knowledge of Confidential Information and/or Inventions\nwould render Employee’s assistance to a Competing Organization a competitive advantage.\n(4)\n“Restricted Geographic Area” is defined as all countries, territories, parishes, municipalities\nand states in which Company is doing business or is selling its products at the time of termination of Employee’s\nemployment with Company, including but not limited to every parish and municipality in the state of\nLouisiana. Employee acknowledges that this geographic scope is reasonable given Employee's position with Company,\nthe international scope of Company's business; and the fact that Employee could compete with Company from anywhere\nCompany does business.\n(5)\n“Restricted Period” is defined as the date Employee executes this Agreement, continuing\nthrough the eighteen (18) months after the Employee’s last day of employment with Company unless otherwise extended\nby Employee’s breach of this Agreement. The running time on the Restricted Period shall be suspended during any\nperiod in which Employee is in violation of any of the restrictive covenants set forth herein, and all restrictions shall\nautomatically be extended by the period Employee was in violation of any such restrictions.\n(6)\n“Customer” is defined as any person or entity with respect to whom, as of the date of\nEmployee’s separation from Company employment or at any time during the two years prior to such separation,\nCompany sold or provided any products and/or services.\n(7)\n“Active Prospect” is defined as any person or entity that Company individually and\nspecifically marketed to and/or held discussions with regarding the distribution\n-5-\nand/or sale of any of Company's products, processes or services at any time during the last six (6) months of Employee’s\nemployment with Company.\n(8)\n“Severance Benefit Period” is the period of time represented by the total amount of any\nseverance benefit offered to Employee (whether or not actually paid). By way of illustration, if Employee were offered a\nlump-sum severance benefit equivalent to ten (10) weeks of Employee’s final base pay upon termination of his or her\nemployment with the Company, Employee’s Severance Benefit Period would be 10 weeks, whether or not Employee\nactually fulfilled all requirements of receiving, and did receive, any portion of the severance benefit.\n(b)\nRestrictive Covenants. During the Restricted Period, Employee agrees to be bound by each of\nthe following independent and divisible restrictions:\n(1)\nCovenant Not to Compete.\n(A)\nEmployee will not, within the Restricted Geographic Area, be employed by, work\nfor, consult with, provide services to, or lend assistance to any Competing Organization in a Prohibited Capacity.\n(B)\nEmployee may be employed by, work for, consult with, provide services to, or\nlend assistance to a Competing Organization provided that: (i) the Competing Organization’s business is diversified;\n(ii) the part of the Competing Organization's business with which Employee will be affiliated would not, evaluated on a\nstand-alone basis, be a Competing Organization; (iii) Employee’s affiliation with the Competing Organization does not\ninvolve any Competing Products; (iv) Employee provides Company a written description of Employee’s anticipated\nactivities on behalf of the Competing Organization which includes, without limitation, an assurance satisfactory to\nCompany that Employee’s affiliation with the Competing Organization does not constitute a Prohibited Capacity; and (v)\nEmployee's affiliation with the Competing Organization does not constitute a competitive disadvantage to Company.\n(2)\nCovenant Not to Solicit Customers or Active Prospects. Employee will not, directly or\nindirectly, (i) provide, sell, or market; (ii) assist in the provision, selling or marketing of; or (iii) attempt to provide, sell\nor market any Competing Products to any of Company’s Customers or Active Prospects located in the Restricted\nGeographic Area.\n(3)\nCovenant Not to Interfere With Business Relationships. Employee will not, within the\nRestricted Geographic Area, urge, induce or seek to induce any of Company’s independent contractors, subcontractors,\ndistributors, brokers, consultants, sales representatives, customers, vendors, suppliers or any other person or entity with\nwhom Company has a business relationship at the time of Employee's separation from Company employment to\nterminate its or their relationship with, or representation of, Company or to cancel, withdraw, reduce, limit or in any\nmanner modify any such person’s or entity’s business with, or representation of, Company\n(4)\nCovenant Not to Solicit Company Employees. Employee will not employ, solicit for\nemployment, or advise any other person or entity to employ or solicit for employment, any individual employed by\nCompany at the time of Employee's separation from Company\n-6-\nemployment, or otherwise directly or indirectly induce or entice any such employee to leave his/her employment with\nCompany.\n(5)\nCovenant Not to Disparage Company. Employee will not make or publish any disparaging\nor derogatory statements about Company; about Company's products, processes, or services; or about Company's past,\npresent and future officers, directors, employees, attorneys and agents. Disparaging or derogatory statements include,\nbut are not limited to, negative statements regarding Company’s business or other practices; provided, however, nothing\nherein shall prohibit Employee from providing any information as may be compelled by law or legal process.\n8.\nReasonableness of Terms. Employee acknowledges and agrees that the restrictive covenants\ncontained in this Agreement restrict Employee from engaging in activities for a competitive purpose and are reasonably\nnecessary to protect Company’s legitimate interests in Confidential Information, Inventions, and goodwill. Additionally,\nEmployee acknowledges and agrees that the restrictive covenants are reasonable in all respects, including, but not\nlimited to, temporal duration, scope of prohibited activities and geographic area. Employee further acknowledges and\nagrees that the restrictive covenants set forth in this Agreement will not pose unreasonable hardship on Employee and\nthat Employee will have a reasonable opportunity to earn an equivalent livelihood without violating any provision of this\nAgreement.\n9.\nNon-Competition Period Payments.\n(a)\nEligibility and Amount. In the event of Employee’s involuntary separation from employment\nwith the Company for a reason that renders Employee eligible for benefits under the terms of the Company’s Severance\nPlan, then to the extent Employee is denied, solely because of the restrictive covenant provisions of Section 7 of this\nAgreement, a specific full-time or part-time employment, consulting, or other position that would otherwise be offered to\nEmployee by a Competing Organization, and provided Employee satisfies all conditions stated herein, then upon\nexpiration of Employee’s Severance Benefit Period, Company will make monthly payments to Employee for each month\nEmployee remains unemployed through the end of the Restricted Period. These monthly payments shall equal the lesser\nof Employee’s monthly base pay at the time of Employee's separation from Company employment (exclusive of bonus\nand other extra compensation and any other employee benefits) or the monthly compensation that would have been\noffered to Employee by the Competing Organization. This Section 9 will not apply if Employee leaves employment\nwith the Company voluntarily or if Company terminates Employee’s employment for a reason or reasons that render\nEmployee ineligible for benefits under terms of the Company’s Severance Plan.\n(b)\nVerification of Eligibility for Non-Competition Period Payments. To qualify for payments under\nthis Section 9, Employee must provide Company detailed written documentation supporting eligibility for payment,\nincluding, at a minimum, (i) the name and location of the Competing Organization that would have employed Employee\nbut for the provisions of Section 7 of this Agreement, (ii) the title, nature, and detailed job responsibilities of the\nemployment position with the Competing Organization that Employee was denied, (iii) the date Employee was denied\nthe employment position, and (iv) the name and contact information of a managerial employee at the Competing\nOrganization who has sufficient authority to confirm that Employee\n-7-\nwas denied this specific employment position with the Competing Organization solely because Employee is subject to\nthe provisions of Section 7 of this Agreement (the “eligibility documentation”). Upon receipt of the eligibility\ndocumentation, Company will determine eligibility for payment and, if eligibility is established, payments will\ncommence as of the date of Company’s receipt of the eligibility documentation or the date Employee’s Severance\nBenefit Period ends, whichever is later.\n(c)\nObligation to Pursue Replacement Employment and Verification of Continued Eligibility for\nNon-Competition Period Payments. Employee is obligated to diligently seek and pursue replacement employment that\ndoes not violate Section 7 of this Agreement ("replacement employment") during any period in which Employee seeks\nand/or accepts payment from Company under this Section 9. After eligibility for non-competition period payments is\nestablished, Employee will, on or before the 15th day of each month of eligibility for continued payments, submit to\nCompany a written statement (i) identifying by name and address all prospective employers with whom Employee has\napplied or inquired about employment; (ii) identifying positions sought with each listed employer and specific actions\ntaken in seeking each position; (iii) describing all other efforts made to obtain replacement employment; and\n(iv) describing any offers of employment received, including the name of the employer; the nature, title, and\ncompensation terms of the position offered; the actual or anticipated start date if the offer has been accepted; and the\nreason(s) for declining if the offer was declined.\n(d)\nEffect of Replacement Employment on Non-Competition Period Payments. If Employee is\ndenied a specific employment, consulting or other such position with a Competing Organization solely because of the\nrestrictive covenant provisions of Section 7 of this Agreement but obtains other work for compensation, and the monthly\ncompensation (including base pay, commissions, incentive compensation, bonuses, fees and other compensation) for the\nreplacement work is less than Employee’s monthly base pay at the time of Employee’s separation from employment with\nCompany, Company agrees to pay Employee the difference for each such month through the end of the Restricted\nPeriod, again upon expiration of any severance benefits which Employee was offered and provided Employee satisfies\nall conditions stated herein, with monthly payments not to exceed the amount to which Employee is entitled under\nsubsection (a) of this Section 9. Employee shall submit to Company payroll records and/or any other records reasonably\nrequested by Company showing all compensation received by Employee from the replacement work as a condition of\nCompany's payment of Non-Competition Period Payments covering any period of time when Employee performs work\nfor compensation.\n(e)\nCompany's Right To Provide Release of Obligations in Lieu of Non-Competition Period\nPayments. Notwithstanding any of the foregoing provisions of this Section 9, Company reserves the right to release\nEmployee from Employee’s obligations under Section 7 of this Agreement at any time during the Restricted Period, in\nfull or in sufficient part to allow Employee to accept an opportunity that would otherwise be prohibited under this\nAgreement, at which time Company’s payment obligations under this Section 9 shall cease immediately and Employee\nshall not be entitled to any further such payments or compensation.\n10.\nSeverability, Modification of Restrictions. The covenants and restrictions in this Agreement are\nseparate and divisible, and to the extent any clause, portion or section of this Agreement is determined to be\nunenforceable or invalid for any reason, Company and Employee\n-8-\nacknowledge and agree that such unenforceability or invalidity shall not affect the enforceability or validity of the\nremainder of the Agreement. If any particular covenant, provision or clause of this Agreement is determined to be\nunreasonable or unenforceable for any reason, including, without limitation, temporal duration, scope of prohibited\nactivity, and/or scope of geographic area, Company and Employee acknowledge and agree that such covenant, provision\nor clause shall automatically be deemed reformed to have the closest effect permitted by applicable law to the original\nform and shall be given effect and enforced as so reformed to whatever extent would be reasonable and enforceable\nunder applicable law. The parties agree that any court interpreting the provisions of this Agreement shall have the\nauthority, if necessary, to reform any such provision to make it enforceable under applicable law.\n11.\nRemedies. Employee acknowledges that a breach or threatened breach by Employee of this\nAgreement will give rise to irreparable injury to Company and that money damages will not be adequate relief for such\ninjury. Accordingly, Employee agrees that Company shall be entitled to obtain injunctive relief, including, but not\nlimited to, temporary restraining orders, preliminary injunctions and/or permanent injunctions, without having to post\nany bond or other security, to restrain or prohibit such breach or threatened breach, in addition to any other legal\nremedies which may be available. In addition to all other relief to which it shall be entitled, Company shall be entitled to\ncease all payments to which Employee would otherwise be entitled under Section 9 hereto; continue to enforce this\nAgreement; recover from Employee all payments made under Section 9 to the extent attributable to a time during which\nEmployee was in violation of the covenants for which payment was made; and recover from Employee all litigation\ncosts and attorneys’ fees incurred by Company in any action or proceeding relating to this Agreement in which Company\nprevails in any respect, including, but not limited to, any action or proceeding in which Company seeks enforcement of\nthis Agreement or seeks relief from Employee’s violation of this Agreement.\n12.\nSurvival of Obligations. Employee acknowledges and agrees that Employee’s obligations under\nthis Agreement, including, without limitation, Employee’s non-disclosure and non-competition obligations, shall survive\nthe termination of Employee’s employment with Company, whether such termination is with or without cause and\nwhether it is voluntary or involuntary. Employee acknowledges and agrees that nothing in this Agreement alters the at-\nwill nature of Employee's employment and that either Company or Employee may terminate the employment\nrelationship at any time, with or without cause or notice. Employee further acknowledges and agrees\nthat: (a) Employee’s non-disclosure, non-disparagement, non-solicitation and non-competition covenants set forth in\nSections 2 and 7 of this Agreement shall be construed as independent covenants and that no breach of any contractual or\nlegal duty by Company shall be held sufficient to excuse or terminate Employee’s obligations or to preclude Company\nfrom obtaining injunctive relief or other remedies for Employee’s violation or threatened violation of such covenants,\nand (b) the existence of any claim or cause of action by Employee against Company, whether predicated on this\nAgreement or otherwise, shall not constitute a defense to Company's enforcement of Employee's obligations under\nSections 2 and 7 of this Agreement.\n13.\nGoverning Law and Choice of Forum. This Agreement shall be construed and enforced in\naccordance with the laws of the State of Indiana, notwithstanding any state’s choice-of-law rules to the contrary. The\nparties agree that any legal action relating to this Agreement\n-9-\nshall be commenced and maintained exclusively before the United States District Court for the Northern District of\nIndiana if jurisdiction permits, or otherwise before any appropriate state court located in Kosciusko County,\nIndiana. The parties hereby submit to the jurisdiction of such courts and waive any right to challenge or otherwise object\nto personal jurisdiction or venue, in any action commenced or maintained in such courts. Language translations aside,\nthe English version shall govern.\n14.\nEnforcement. The parties agree that Zimmer, Inc., Zimmer US, Inc. and/or any or each of their\naffiliates, parents, or direct or indirect subsidiaries (including but not limited to Biomet, Inc. and its direct or indirect\nsubsidiaries), as well as any successor-in-interest to Zimmer, Inc., Zimmer US, Inc. and/or to any of their direct or\nindirect subsidiaries, affiliates, or parents are express and intended parties to and beneficiaries to this Agreement, with\nfull rights to enforce this Agreement independently or in conjunction with each other.\n15.\nSuccessors and Assigns. Company shall have the right to assign this Agreement, and, accordingly,\nthis Agreement shall inure to the benefit of, and may be enforced by, any and all successors and assigns of Company,\nincluding without limitation by asset assignment, stock sale, merger, consolidation or other corporate reorganization, and\nshall be binding on Employee. The services to be provided by Employee to Company are personal to Employee, and\nEmployee shall not have the right to assign Employee’s duties under this Agreement.\n16.\nModification. This Agreement may not be amended, supplemented, or modified except by a written\ndocument signed by both Employee and a duly authorized officer of Company.\n17.\nNo Waiver. The failure of Company to insist in any one or more instances upon performance of any\nprovision of this Agreement or to pursue its rights hereunder shall not be construed as a waiver of any such provisions or\nthe relinquishment of any such rights.\n18.\nCounterparts. This Agreement may be executed in counterparts, each of which shall be deemed an\noriginal, but both of which when taken together will constitute one and the same agreement.\n19.\nEntire Agreement. This Agreement, including Recitals, constitutes the entire agreement of the\nparties with respect to the subjects specifically addressed herein, and supersedes any prior agreements, understandings,\nor representations, oral or written, on the subjects addressed herein. Notwithstanding the foregoing, to the extent the\nemployee has an existing non-competition, confidentiality, and/or non-solicitation agreement in favor of Company and\nhas breached or violated the terms thereof, Company may continue to enforce its rights and remedies under and pursuant\nto such existing agreement.\n- 10-\nEmployee’s signature below indicates that Employee has read the entire Agreement, understands what Employee is\nsigning, and is signing the Agreement voluntarily. Employee agrees that Company advised Employee to consult with an\nattorney prior to signing the Agreement.\n“EMPLOYEE”\n(Employee Signature)\nPrinted Name:\nDate:\n“COMPANY”\nBy:_______________________________________\nPrinted Name: _____________________________\nTitle: _____________________________________\nDate: _____________________________________\n- 11-
+08dca3b236c9f5b6b03b3e546e4daeda.pdf	effective_date jurisdiction party term	EX-99.(E)(4) 4 p75864exv99wxeyx4y.htm EXHIBIT 99.(E)(4)\nExhibit (e)(4)\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (this “Agreement”), dated as of March 28, 2007, is made by and between Motive, Inc., a Delaware corporation, with a\nprincipal place of business at 12515 Research Boulevard, Building 5, Austin, Texas 78759 USA (hereinafter “Motive”) and Alcatel-Lucent, a a Societe Anonyme organized\nunder the laws of the Republic of France, with a principal office at 54 rue La Boetie, 75008 Paris, France (hereinafter “Alcatel Lucent”).\nRECITALS\nWHEREAS, Motive and Alcatel Lucent (jointly, the “Parties” and each individually, a “Party”) desire to enter into discussions related to a possible business\ncombination (the “Possible Transaction”), and these discussions will of necessity involve the disclosure by one Party (the “Disclosing Party”) to the other Party (the\n“ Receiving Party”) of confidential and proprietary information; and\nWHEREAS, the Parties desire to (i) keep their discussions and the nature and scope thereof confidential; and (ii) reach an understanding with respect to the disclosure\nof such information and the confidentiality of the discussions in general;\nNOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the parties hereto agree as follows:\n1. Definitions. The following terms shall have the meanings set forth below:\n1.1. “ Confidential Information” includes all non-public information, whether written or oral (whatever the form or storage medium), or gathered by inspection,\nor acquired, directly or indirectly, by one Party or its Representatives from the other Party or its Representatives in connection with a Possible Transaction, regardless\nof whether such information is specifically identified as “confidential.” The term “Confidential Information” does not include information which (i) was known to the\nReceiving Party or its Representatives or was in its or any of its Representatives’ possession prior to the date of its disclosure pursuant to this Agreement (except for\ninformation which was previously disclosed to the Receiving Party or its Representatives under an obligation of confidentiality to the Disclosing Party or its\nRepresentatives and which continues to remain subject to those confidentiality obligations); (ii) is or becomes generally available to the public other than through an\nunauthorized disclosure by the Receiving Party or its Representatives in violation of this Agreement; (iii) becomes available to the Receiving Party or its\nRepresentatives from a source other than the Disclosing Party or its Representatives, provided that such source is not, to the Receiving Party’s knowledge, prohibited\nfrom transmitting such Confidential Information to the Receiving Party by a contractual, legal or fiduciary obligation to the Disclosing Party or its Representatives; or\n(iv) is independently developed by the Receiving Party or any of its Representatives as demonstrated by the written records of such Party or Representatives which\nhave not had access to the other Party’s Confidential Information.\n1.2. “ Person”shall be broadly interpreted to include, without limitation, any individual, corporation, company, group, partnership, limited liability company or\nother entity.\n1.3. “Representatives” means a Party’s affiliates and its and their respective directors, officers, employees, agents or representatives, including, without\nlimitation, its and their respective attorneys, accountants, consultants and financial advisors.\n1.4. “Residuals” means technological information and all ideas, concepts, and understandings related thereto that would be inadvertently retained in non-\ntangible form in the unaided memory of an ordinary Person unless such Person intentionally memorized such technological information, ideas, concepts and\nunderstandings for the purpose of retaining and subsequently using or disclosing it for purposes other than as authorized by this Agreement.\n2. Confidential Information.\n2.1. Each Party recognizes and acknowledges the value of the Confidential Information and the damage that could result if the Confidential Information were used or\ndisclosed except as authorized by this Agreement. Except as otherwise required by applicable law or regulatory authority, each Party agrees to keep confidential and not\ndisclose, and cause its Representatives to keep confidential and not disclose, to any Person the Confidential Information it or its Representatives receives from the other Party\nor its Representatives without the Disclosing Party’s prior written consent, except as provided below. The Receiving Party or its Representatives shall be entitled to disclose\nthe Confidential Information of the Disclosing Party and provide copies of the same, without the\nDisclosing Party’s prior written consent, to those Representatives of the Receiving Party who need to know such Confidential Information solely for the purpose of evaluating\nthe Possible Transaction. The Receiving Party shall be responsible for any violations of any provision of this Agreement caused by any of the Receiving Party’s\nRepresentatives.\n2.2. The Receiving Party acknowledges that the Evaluation Material is being furnished to the Receiving Party in consideration of the Receiving Party’s agreement that\nit will not propose to the Disclosing Party or any other person any transaction between the Receiving Party and the Disclosing Party and/or its security holders or involving\nany of its securities or security holders unless the Disclosing Party shall have requested in writing that the Receiving Party make such a proposal, and that the Receiving Party\nwill not acquire, or assist, advise or encourage any other persons in acquiring, directly or indirectly, control of the Disclosing Party or any of the Disclosing Party’s securities,\nbusinesses or assets for a period of two (2) years from the date of this Agreement unless the Disclosing Party shall have consented in advance in writing to any such action.\n2.3 The Receiving Party agrees that it will not use the Evaluation Material in any way directly or indirectly detrimental to the Disclosing Party. In particular, the\nReceiving Party agrees that it and its Representatives will not knowingly, as a result of knowledge or information obtained from the Evaluation Material or otherwise in\nconnection with the Possible Transaction, directly or indirectly: (i) solicit, divert or attempt to solicit or divert any business or customer of the Disclosing Party or any of its\naffiliates; nor (ii) solicit, the employment of, employ, divert or attempt any of the foregoing with respect to, any employee of the Disclosing Party or any of its affiliates\n3. Use of Confidential Information for Evaluation; Disclosure. Neither the Receiving Party nor any of its Representatives shall use the Confidential Information for\nany purpose, other than evaluation of the Possible Transaction. Each Party hereby acknowledges that it is aware, and that it will advise its Representatives who are informed\nas to the matters which are the subject of this Agreement, that United States securities laws prohibit any person who has received from an issuer material, non-public\ninformation concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to\nany other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. The restrictions on disclosure and use\nof Confidential Information in this Agreement shall extend until the earlier of (a) the expiration of the period set forth in Section 14 of this Agreement, (b) the Parties’ entry\ninto a separate, subsequent agreement that contains confidentiality and non-disclosure provisions that supersede this Agreement with respect to the Confidential Information,\nand (c) such time, if ever, the Confidential Information becomes publicly available (otherwise than through a breach of this Agreement). Except to the extent the Receiving\nParty’s legal counsel advises the Receiving Party that disclosure is required by applicable law or regulatory authority, without the prior written consent of the Disclosing Party,\nthe Receiving Party will not, and will direct the Receiving Party’s Representatives not to, disclose to any other Person that such Confidential Information has been requested\nor made available, that discussions or negotiations are taking place concerning the Possible Transaction, or any of the terms, conditions or other facts with respect to the\nPossible Transaction, including the status thereof, or the term of this Agreement.\n4. Requested Disclosure of Confidentialdential Information.\n4.1 In the event that a Receiving Party or anyone to whom the Receiving Party transmits such Confidential Information pursuant to this Agreement is legally requested\n(by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand or similar process) or otherwise required to disclose any\nConfidential Information of a Disclosing Party, the Receiving Party will, except as prohibited by law, provide the Disclosing Party with written notice of same, prior to\ndisclosing such Confidential Information, so that the Disclosing Party may seek an appropriate protective order and/or waive compliance with this Agreement. If, in the\nabsence of a protective order or the receipt of a waiver hereunder, the Receiving Party is nonetheless legally compelled to disclose such Confidential Information, it may,\nwithout liability hereunder, furnish only that portion of such Confidential Information that is legally required and will exercise reasonable commercial efforts to obtain\nassurance that confidential treatment will be accorded such Confidential Information.\n4.2 If either Party, in its sole judgment, determines that it is required by applicable securities laws to make disclosures or public statements prohibited by Paragraph 3,\nthe Party may make such disclosures or public statements as may be required by securities laws. The Disclosing Party shall provide the other Party with prior notice to the\nextent practicable.\nPage2of5\n5. No License; Use. Neither the execution of this Agreement, nor the furnishing of any materials or Confidential Information hereunder, shall be construed as granting\nor conferring any rights to the other Party, either expressly or by implication, estoppel or otherwise, any license under any trademark, patent, copyright, technological\ninformation or other information, or other intellectual property; provided, however, that a Person who has used or seen materials or information pursuant to this Agreement\nshall not be precluded from using or disclosing Residuals. Nothing in this Agreement shall be construed to limit the Receiving Party’s right to independently develop\ninformation, materials, technology, or other products or services for itself or for others which may compete with the Disclosing Party so long as no disclosures or use in\nviolation of this Agreement has been made by the Receiving Party. Furthermore, nothing herein shall be construed as a representation or inference by Receiving Party that it\nhas not already developed, or may be in the process of developing, or may have already rightfully received or acquired from third parties, information similar to that\nConfidential Information to be disclosed by Disclosing Party hereunder.\n6. Ownership of Confidential Information. The Confidential information shall remain the property of the Disclosing Party, and the Disclosing Party may demand the\nreturn thereof at any time by written notice to the Receiving Party. Upon receipt of such notice, the Receiving Party shall (a) return to the Disclosing Party all Confidential\nInformation received by the Receiving Party or its Representatives from the Disclosing Party or its Representatives; and (b) destroy and cause each of its Representatives to\ndestroy each and every copy of any documents, drawings, data, memoranda and other written Materials together with any tapes and computer stored information or the parts\nthereof extracted from, embodying, containing or relating to such other party’s Confidential Information; provided, however, that one (1) copy of the Confidential Information\nmay be retained by the Receiving Party’s outside counsel on a confidential basis for purposes of verification. Any destruction pursuant to (b) in the preceding sentence shall be\npromptly confirmed in writing.\n7. No Warranties. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives makes any representation or warranty hereunder as to\nthe accuracy or completeness of any Confidential Information of the Disclosing Party or other information disclosed pursuant to this Agreement, each Party agrees to assume\nfull responsibility for all conclusions it derives from the Confidential Information. The Receiving Party agrees that neither the Disclosing Party nor its Representatives shall\nhave any liability hereunder to the Receiving Party or to any of the Receiving Party’s Representatives on any basis (including, without limitation, in contract, tort, under\nfederal or state securities laws, or otherwise) as a result of the use of such Confidential Information by the Receiving Party and the Receiving Party’s Representatives, it being\nunderstood that only those particular representations and warranties that may be made to the Receiving Party by the Disclosing Party or its affiliates in a definitive transaction\nagreement, when, as and if it is executed, and subject to such limitations and restrictions as may be specified in such definitive agreement, shall have any legal effect. Each\nParty and its respective Representatives hereby expressly disclaim any and all liability that may be based, in whole or in part, on errors or omissions in any Confidential\nInformation furnished hereunder. Unless and until a definitive agreement (the “Definitive Agreement”) with respect to a Possible Transaction has been executed and delivered\nby the Parties hereto, neither Party will be under any legal Obligation of any kind whatsoever to proceed with a Possible Transaction in whole or in part or to continue\ndiscussions relating thereto by virtue of this Agreement or any written or oral expression with respect to such a Possible Transaction by any of its Representatives. Prior to the\nexecution and delivery of the Definitive Agreement, either party may terminate discussions and negotiations regarding a Possible Transaction at any time, wit lout any liability\nwhatsoever, save for the obligations and duties specifically agreed to herein For the purposes hereof, the term “Definitive Agreement” does not include an executed letter of\nintent or any other preliminary written agreement nor does it include any written or verbal acceptance of an offer or bid.\n8. Notices. All notices, requests, consents, and other communications required or permitted hereunder shall be in writing and shall be personally delivered, mailed\nusing first-class, registered, or certified mail, postage prepaid, sent using a nationally recognized overnight courier to the following addresses or to such other address as the\nparties hereto may designate in writing:\nALCATEL LUCENT:\nALCATEL LUCENT\n600 Mountain Avenue\nPage3of5\nMurray Hill, NJ 07974\nAttn: John R. McCord\nwith a copy to:\nALCATEL LUCENT\n600 Mountain Avenue\nMurray Hill, NJ 07974\nAttn: General Counsel\nMOTIVE:\nMOTIVE, INC .\n12515 Research Boulevard\nBuilding 5\nAustin, TX 78759\nUSA\nAttn: General Counsel\nAll such notices, requests, consents and other communications shall be deemed to be properly given (a) if delivered personally to the address as provided in this\nSection, upon delivery, (b) if sent by mail, three (3) business days after the same has been deposited in mail, addressed and postage prepaid as set forth above and (c) if\ndelivered by overnight courier to the address as provided in this Section, on the earlier of the first business day following the date sent by such overnight courier or upon\nreceipt (in each case regardless of whether such notice, request or other communication is received by any other person to whom a copy of such notice is to be delivered\npursuant to this Section). Any Party from time to time may change its address, facsimile number or other information for the purpose of notices to that Party by giving notice\nspecifying such change to the other Party hereto.\n9. Severability. If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms\nand provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.\n10. Entire Agreement: Amendments: Consent to Assignment. This Agreement comprises the full agreement between the Parties concerning the subject matter hereof.\nThis Agreement supersedes any prior understandings or agreements, regardless of form, between the Parties with respect to the subject matter hereof. No amendments,\nchanges or modifications may be made to this Agreement without the express written consent of each of the Parties hereto. This Agreement and the rights and obligations of a\nParty hereunder may not be assigned, directly, indirectly, by operation of law or otherwise, by either Part) without the prior written consent of the other Party.\n11. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts\nmade and to be performed therein, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law.\nThe state and federal courts located in New York shall have non-exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each Party\nconsents to the personal jurisdiction and venue of these courts. Each Party waives any objection that it may now or hereafter have to the laying of venue of any such\nproceeding in any court in the state of New York and any claim that it may now or hereafter have that any such proceeding in any court in the state of New York has been\nbrought in an inconvenient forum.\n12. Remedies; Legal Fees. Each Party acknowledges that the other would be irreparably injured if the Receiving Party breaches any of its obligations under this\nAgreement. The Parties each agree that money damages would not be a sufficient remedy for any breach of this Agreement and that, in the event of a breach by a Party or its\nRepresentatives, the other Party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for such breach. Such remedies shall not be\ndeemed to be the exclusive remedies for a breach of this Agreement by a Party or its Representatives but shall be in addition to all other remedies available at law or equity to\nthe non-breaching Party. Each Party expressly agrees to waive the defense that a remedy in damages will be adequate, and agrees to use its reasonable best efforts to cause its\nRepresentatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. In the event of litigation relating to this Agreement, if\na court of competent jurisdiction determines that a Party or any of its Representatives have breached\nPage4of5\nthis Agreement, then such Party shall be liable and pay to the other Party the reasonable legal fees and expenses incurred by the other Party in connection with such litigation,\nincluding any appeal therefrom.\n13. Waiver. Each Party understands and agrees that no failure or delay by the other Party in exercising any right, power or privilege under this Agreement shall operate\nas a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege hereunder.\n14. Term of Agreement. This Agreement and the obligations of the Parties hereunder shall terminate two years from the date hereof.\n15. Binding Effect. This Agreement shall benefit and be binding upon the Parties and their respective permitted successors and assigns.\n16. Construction. This Agreement has been negotiated by the Parties and their respective attorneys, and the language of this Agreement shall not be construed for or\nagainst either Party.\n17. Counterparts; Facsimile Signatures. This Agreement may be executed in two or more counterparts, each of which shall be binding as of the date first written\nabove. Each such copy shall be deemed an original, and it shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart.\nThis Agreement may be executed and delivered by facsimile and upon such delivery the facsimile signature will be deemed to have the same effect as if the original signature\nhad been delivered to the other party. The original signature copy shall be delivered to the other party by overnight courier. The failure to deliver the original signature copy\nand/or the nonreceipt of the original signature copy shall have no effect upon the binding and enforceable nature of this Agreement.\nIN WITNESS WHEREOF, this Nondisclosure Agreement has been executed by the parties hereto as of the day and year first written above.\nAlcatel-Lucent\nBy: /s/ Scott M. Ashby\nName: Scott M. Ashby\nTitle: DEPUTY CFO\nMotive, Inc.\na Delawara corporation\nBy: /s/ Jack Greenberg\nName: Jack Greenberg\nTitle: GENERAL COUNSEL & SECRETARY\nPage5of5	EX-99.(E)(4) 4 p75864exv99wxeyx4y.htm EXHIBIT 99.(E)(4)\nExhibit (e)(4)\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (this “Agreement”), dated as of March 28, 2007, is made by and between Motive, Inc., a Delaware corporation, with a\nprincipal place of business at 12515 Research Boulevard, Building 5, Austin, Texas 78759 USA (hereinafter “Motive”) and Alcatel-Lucent, a a Societe Anonyme organized\nunder the laws of the Republic of France, with a principal office at 54 rue La Boetie, 75008 Paris, France (hereinafter “Alcatel Lucent”).\nRECITALS\nWHEREAS, Motive and Alcatel Lucent (jointly, the “Parties” and each individually, a “Party”) desire to enter into discussions related to a possible business\ncombination (the “Possible Transaction), and these discussions will of necessity involve the disclosure by one Party (the “Disclosing Party”) to the other Party (the\n“Receiving Party”) of confidential and proprietary information; and\nWHEREAS, the Parties desire to (i) keep their discussions and the nature and scope thereof confidential; and (ii) reach an understanding with respect to the disclosure\nof such information and the confidentiality of the discussions in general;\nNOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the parties hereto agree as follows:\n1. Definitions. The following terms shall have the meanings set forth below:\n \n1.1. “Confidential Information” includes all non-public information, whether written or oral (whatever the form or storage medium), or gathered by inspection,\nor acquired, directly or indirectly, by one Party or its Representatives from the other Party or its Representatives in connection with a Possible Transaction, regardless\nof whether such information is specifically identified as “confidential.” The term “Confidential Information” does not include information which (i) was known to the\nReceiving Party or its Representatives or was in its or any of its Representatives’ possession prior to the date of its disclosure pursuant to this Agreement (except for\ninformation which was previously disclosed to the Receiving Party or its Representatives under an obligation of confidentiality to the Disclosing Party or its\nRepresentatives and which continues to remain subject to those confidentiality obligations); (ii) is or becomes generally available to the public other than through an\nunauthorized disclosure by the Receiving Party or its Representatives in violation of this Agreement; (iii) becomes available to the Receiving Party or its\nRepresentatives from a source other than the Disclosing Party or its Representatives, provided that such source is not, to the Receiving Party’s knowledge, prohibited\nfrom transmitting such Confidential Information to the Receiving Party by a contractual, legal or fiduciary obligation to the Disclosing Party or its Representatives; or\n(iv) is independently developed by the Receiving Party or any of its Representatives as demonstrated by the written records of such Party or Representatives which\nhave not had access to the other Party’s Confidential Information.\n1.2. “Person”shall be broadly interpreted to include, without limitation, any individual, corporation, company, group, partnership, limited liability company or\nother entity.\n1.3. “Representatives” means a Party’s affiliates and its and their respective directors, officers, employees, agents or representatives, including, without\nlimitation, its and their respective attorneys, accountants, consultants and financial advisors.\n1.4. “Residuals” means technological information and all ideas, concepts, and understandings related thereto that would be inadvertently retained in non-\ntangible form in the unaided memory of an ordinary Person unless such Person intentionally memorized such technological information, ideas, concepts and\nunderstandings for the purpose of retaining and subsequently using or disclosing it for purposes other than as authorized by this Agreement.\n2. Confidential Information.\n2.1. Each Party recognizes and acknowledges the value of the Confidential Information and the damage that could result if the Confidential Information were used or\ndisclosed except as authorized by this Agreement. Except as otherwise required by applicable law or regulatory authority, each Party agrees to keep confidential and not\ndisclose, and cause its Representatives to keep confidential and not disclose, to any Person the Confidential Information it or its Representatives receives from the other Party\nor its Representatives without the Disclosing Party’s prior written consent, except as provided below. The Receiving Party or its Representatives shall be entitled to disclose\nthe Confidential Information of the Disclosing Party and provide copies of the same, without the\nDisclosing Party’s prior written consent, to those Representatives of the Receiving Party who need to know such Confidential Information solely for the purpose of evaluating\nthe Possible Transaction. The Receiving Party shall be responsible for any violations of any provision of this Agreement caused by any of the Receiving Party’s\nRepresentatives.\n2.2. The Receiving Party acknowledges that the Evaluation Material is being furnished to the Receiving Party in consideration of the Receiving Party’s agreement that\nit will not propose to the Disclosing Party or any other person any transaction between the Receiving Party and the Disclosing Party and/or its security holders or involving\nany of its securities or security holders unless the Disclosing Party shall have requested in writing that the Receiving Party make such a proposal, and that the Receiving Party\nwill not acquire, or assist, advise or encourage any other persons in acquiring, directly or indirectly, control of the Disclosing Party or any of the Disclosing Party’s securities,\nbusinesses or assets for a period of two (2) years from the date of this Agreement unless the Disclosing Party shall have consented in advance in writing to any such action.\n2.3 The Receiving Party agrees that it will not use the Evaluation Material in any way directly or indirectly detrimental to the Disclosing Party. In particular, the\nReceiving Party agrees that it and its Representatives will not knowingly, as a result of knowledge or information obtained from the Evaluation Material or otherwise in\nconnection with the Possible Transaction, directly or indirectly: (i) solicit, divert or attempt to solicit or divert any business or customer of the Disclosing Party or any of its\naffiliates; nor (ii) solicit, the employment of, employ, divert or attempt any of the foregoing with respect to, any employee of the Disclosing Party or any of its affiliates\n3. Use of Confidential Information for Evaluation; Disclosure. Neither the Receiving Party nor any of its Representatives shall use the Confidential Information for\nany purpose, other than evaluation of the Possible Transaction. Each Party hereby acknowledges that it is aware, and that it will advise its Representatives who are informed\nas to the matters which are the subject of this Agreement, that United States securities laws prohibit any person who has received from an issuer material, non-public\ninformation concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to\nany other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. The restrictions on disclosure and use\nof Confidential Information in this Agreement shall extend until the earlier of (a) the expiration of the period set forth in Section 14 of this Agreement, (b) the Parties’ entry\ninto a separate, subsequent agreement that contains confidentiality and non-disclosure provisions that supersede this Agreement with respect to the Confidential Information,\nand (c) such time, if ever, the Confidential Information becomes publicly available (otherwise than through a breach of this Agreement). Except to the extent the Receiving\nParty’s legal counsel advises the Receiving Party that disclosure is required by applicable law or regulatory authority, without the prior written consent of the Disclosing Party,\nthe Receiving Party will not, and will direct the Receiving Party’s Representatives not to, disclose to any other Person that such Confidential Information has been requested\nor made available, that discussions or negotiations are taking place concerning the Possible Transaction, or any of the terms, conditions or other facts with respect to the\nPossible Transaction, including the status thereof, or the term of this Agreement.\n4.1 In the event that a Receiving Party or anyone to whom the Receiving Party transmits such Confidential Information pursuant to this Agreement is legally requested\n(by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand or similar process) or otherwise required to disclose any\nConfidential Information of a Disclosing Party, the Receiving Party will, except as prohibited by law, provide the Disclosing Party with written notice of same, prior to\ndisclosing such Confidential Information, so that the Disclosing Party may seek an appropriate protective order and/or waive compliance with this Agreement. If, in the\nabsence of a protective order or the receipt of a waiver hereunder, the Receiving Party is nonetheless legally compelled to disclose such Confidential Information, it may,\nwithout liability hereunder, furnish only that portion of such Confidential Information that is legally required and will exercise reasonable commercial efforts to obtain\nassurance that confidential treatment will be accorded such Confidential Information.\n4.2 If either Party, in its sole judgment, determines that it is required by applicable securities laws to make disclosures or public statements prohibited by Paragraph 3,\nthe Party may make such disclosures or public statements as may be required by securities laws. The Disclosing Party shall provide the other Party with prior notice to the\nextent practicable.\nPage 2 of 5\n5. No License; Use. Neither the execution of this Agreement, nor the furnishing of any materials or Confidential Information hereunder, shall be construed as granting\nor conferring any rights to the other Party, either expressly or by implication, estoppel or otherwise, any license under any trademark, patent, copyright, technological\ninformation or other information, or other intellectual property; provided, however, that a Person who has used or seen materials or information pursuant to this Agreement\nshall not be precluded from using or disclosing Residuals. Nothing in this Agreement shall be construed to limit the Receiving Party’s right to independently develop\ninformation, materials, technology, or other products or services for itself or for others which may compete with the Disclosing Party so long as no disclosures or use in\nviolation of this Agreement has been made by the Receiving Party. Furthermore, nothing herein shall be construed as a representation or inference by Receiving Party that it\nhas not already developed, or may be in the process of developing, or may have already rightfully received or acquired from third parties, information similar to that\nConfidential Information to be disclosed by Disclosing Party hereunder.\nreturn thereof at any time by written notice to the Receiving Party. Upon receipt of such notice, the Receiving Party shall (a) return to the Disclosing Party all Confidential\nInformation received by the Receiving Party or its Representatives from the Disclosing Party or its Representatives; and (b) destroy and cause each of its Representatives to\ndestroy each and every copy of any documents, drawings, data, memoranda and other written Materials together with any tapes and computer stored information or the parts\nthereof extracted from, embodying, containing or relating to such other party’s Confidential Information; provided, however, that one (1) copy of the Confidential Information\nmay be retained by the Receiving Party’s outside counsel on a confidential basis for purposes of verification. Any destruction pursuant to (b) in the preceding sentence shall be\npromptly confirmed in writing.\n7. No Warranties. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives makes any representation or warranty hereunder as to\nthe accuracy or completeness of any Confidential Information of the Disclosing Party or other information disclosed pursuant to this Agreement, each Party agrees to assume\nfull responsibility for all conclusions it derives from the Confidential Information. The Receiving Party agrees that neither the Disclosing Party nor its Representatives shall\nhave any liability hereunder to the Receiving Party or to any of the Receiving Party’s Representatives on any basis (including, without limitation, in contract, tort, under\nfederal or state securities laws, or otherwise) as a result of the use of such Confidential Information by the Receiving Party and the Receiving Party’s Representatives, it being\nunderstood that only those particular representations and warranties that may be made to the Receiving Party by the Disclosing Party or its affiliates in a definitive transaction\nagreement, when, as and if it is executed, and subject to such limitations and restrictions as may be specified in such definitive agreement, shall have any legal effect. Each\nParty and its respective Representatives hereby expressly disclaim any and all liability that may be based, in whole or in part, on errors or omissions in any Confidential\nInformation furnished hereunder. Unless and until a definitive agreement (the “Definitive Agreement”) with respect to a Possible Transaction has been executed and delivered\nby the Parties hereto, neither Party will be under any legal Obligation of any kind whatsoever to proceed with a Possible Transaction in whole or in part or to continue\ndiscussions relating thereto by virtue of this Agreement or any written or oral expression with respect to such a Possible Transaction by any of its Representatives. Prior to the\nexecution and delivery of the Definitive Agreement, either party may terminate discussions and negotiations regarding a Possible Transaction at any time, wit lout any liability\nwhatsoever, save for the obligations and duties specifically agreed to herein For the purposes hereof, the term “Definitive Agreement” does not include an executed letter of\nintent or any other preliminary written agreement nor does it include any written or verbal acceptance of an offer or bid.\n8. Notices. All notices, requests, consents, and other communications required or permitted hereunder shall be in writing and shall be personally delivered, mailed\nusing first-class, registered, or certified mail, postage prepaid, sent using a nationally recognized overnight courier to the following addresses or to such other address as the\nparties hereto may designate in writing:\nALCATEL LUCENT:\nALCATEL LUCENT\n600 Mountain Avenue\nPage 3 of 5\nMurray Hill, NJ 07974\nAttn: John R. McCord\nwith a copy to:\nALCATEL LUCENT\n600 Mountain Avenue\nMurray Hill, NJ 07974\nAttn: General Counsel\nMOTIVE:\nMOTIVE, INC.\n12515 Research Boulevard\nBuilding 5\nAustin, TX 78759\nUSA\nAttn: General Counsel\nAll such notices, requests, consents and other communications shall be deemed to be properly given (a) if delivered personally to the address as provided in this\nSection, upon delivery, (b) if sent by mail, three (3) business days after the same has been deposited in mail, addressed and postage prepaid as set forth above and (c) if\ndelivered by overnight courier to the address as provided in this Section, on the earlier of the first business day following the date sent by such overnight courier or upon\nreceipt (in each case regardless of whether such notice, request or other communication is received by any other person to whom a copy of such notice is to be delivered\npursuant to this Section). Any Party from time to time may change its address, facsimile number or other information for the purpose of notices to that Party by giving notice\nspecifying such change to the other Party hereto.\n9. Severability. If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms\nand provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.\n10. Entire Agreement: Amendments: Consent to Assignment. This Agreement comprises the full agreement between the Parties concerning the subject matter hereof.\nThis Agreement supersedes any prior understandings or agreements, regardless of form, between the Parties with respect to the subject matter hereof. No amendments,\nchanges or modifications may be made to this Agreement without the express written consent of each of the Parties hereto. This Agreement and the rights and obligations of a\nParty hereunder may not be assigned, directly, indirectly, by operation of law or otherwise, by either Part) without the prior written consent of the other Party.\n \n11. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts\nmade and to be performed therein, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law.\nThe state and federal courts located in New York shall have non-exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each Party\nconsents to the personal jurisdiction and venue of these courts. Each Party waives any objection that it may now or hereafter have to the laying of venue of any such\nproceeding in any court in the state of New York and any claim that it may now or hereafter have that any such proceeding in any court in the state of New York has been\nbrought in an inconvenient forum.\n12. Remedies; Legal Fees. Each Party acknowledges that the other would be irreparably injured if the Receiving Party breaches any of its obligations under this\nAgreement. The Parties each agree that money damages would not be a sufficient remedy for any breach of this Agreement and that, in the event of a breach by a Party or its\nRepresentatives, the other Party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for such breach. Such remedies shall not be\ndeemed to be the exclusive remedies for a breach of this Agreement by a Party or its Representatives but shall be in addition to all other remedies available at law or equity to\nthe non-breaching Party. Each Party expressly agrees to waive the defense that a remedy in damages will be adequate, and agrees to use its reasonable best efforts to cause its\nRepresentatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. In the event of litigation relating to this Agreement, if\na court of competent jurisdiction determines that a Party or any of its Representatives have breached\nPage 4 of 5\nthis Agreement, then such Party shall be liable and pay to the other Party the reasonable legal fees and expenses incurred by the other Party in connection with such litigation,\nincluding any appeal therefrom.\n13. Waiver. Each Party understands and agrees that no failure or delay by the other Party in exercising any right, power or privilege under this Agreement shall operate\nas a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege hereunder.\n14. Term of Agreement. This Agreement and the obligations of the Parties hereunder shall terminate two years from the date hereof.\n15. Binding Effect. This Agreement shall benefit and be binding upon the Parties and their respective permitted successors and assigns.\n16. Construction. This Agreement has been negotiated by the Parties and their respective attorneys, and the language of this Agreement shall not be construed for or\nagainst either Party.\n17. Counterparts; Facsimile Signatures. This Agreement may be executed in two or more counterparts, each of which shall be binding as of the date first written\nabove. Each such copy shall be deemed an original, and it shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart.\nThis Agreement may be executed and delivered by facsimile and upon such delivery the facsimile signature will be deemed to have the same effect as if the original signature\nhad been delivered to the other party. The original signature copy shall be delivered to the other party by overnight courier. The failure to deliver the original signature copy\nand/or the nonreceipt of the original signature copy shall have no effect upon the binding and enforceable nature of this Agreement.\n \n \nIN WITNESS WHEREOF, this Nondisclosure Agreement has been executed by the parties hereto as of the day and year first written above.\nAlcatel-Lucent\nBy: /s/ Scott M. Ashby\n \nName: Scott M. Ashby\nTitle: DEPUTY CFO\n \nMotive, Inc.\na Delawara corporation\nBy: /s/ Jack Greenberg\nName: Jack Greenberg\n \nTitle: GENERAL COUNSEL & SECRETARY\n \nPage 5 of 5	EX-99.(E)(4) 4 p75864exv99wxeyx4y.htm EXHIBIT 99.(E)(4)\nExhibit (e)(4)\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (this "Agreement"), dated as of March 28, 2007, is made by and between Motive, Inc., a Delaware corporation, with a\nprincipal place of business at 12515 Research Boulevard, Building 5, Austin, Texas 78759 USA (hereinafter "Motive") and Alcatel-Lucent, a a Societe Anonyme organized\nunder the laws of the Republic of France, with a principal office at 54 rue La Boetie, 75008 Paris, France (hereinafter "Alcatel Lucent").\nRECITALS\nWHEREAS, Motive and Alcatel Lucent (jointly, the "Parties" and each individually, a "Party") desire to enter into discussions related to a possible business\ncombination (the "Possible Transaction"), and these discussions will of necessity involve the disclosure by one Party (the "Disclosing Party") to the other Party (the\n"Receiving Party") of confidential and proprietary information; and\nWHEREAS, the Parties desire to (i) keep their discussions and the nature and scope thereof confidential; and (ii) reach an understanding with respect to the disclosure\nof such information and the confidentiality of the discussions in general;\nNOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the parties hereto agree as follows:\n1. Definitions. The following terms shall have the meanings set forth below:\n1.1. "Confidential Information" includes all non-public information, whether written or oral (whatever the form or storage medium), or gathered by inspection,\nor acquired, directly or indirectly, by one Party or its Representatives from the other Party or its Representatives in connection with a Possible Transaction, regardless\nof whether such information is specifically identified as "confidential." The term "Confidential Information" does not include information which (i) was known to the\nReceiving Party or its Representatives or was in its or any of its Representatives possession prior to the date of its disclosure pursuant to this Agreement (except for\ninformation which was previously disclosed to the Receiving Party or its Representatives under an obligation of confidentiality to the Disclosing Party or its\nRepresentatives and which continues to remain subject to those confidentiality obligations); (ii) is or becomes generally available to the public other than through\nan\nunauthorized disclosure by the Receiving Party or its Representatives in violation of this Agreement; (iii) becomes available to the Receiving Party or its\nRepresentatives from a source other than the Disclosing Party or its Representatives, provided that such source is not, to the Receiving Party's knowledge, prohibited\nfrom transmitting such Confidential Information to the Receiving Party by a contractual, legal or fiduciary obligation to the Disclosing Party or its Representatives; or\n(iv) is independently developed by the Receiving Party or any of its Representatives as demonstrated by the written records of such Party or Representatives which\nhave not had access to the other Party's Confidential Information.\n1.2. "Person' "shall be broadly interpreted to include, without limitation, any individual, corporation, company, group, partnership, limited liability company or\nother entity.\n1.3. "Representatives" means a Party's affiliates and its and their respective directors, officers, employees, agents or representatives, including, without\nlimitation, its and their respective attorneys, accountants, consultants and financial advisors.\n1.4. "Residuals" means technological information and all ideas, concepts, and understandings related thereto that would be inadvertently retained in non-\ntangible form in the unaided memory of an ordinary Person unless such Person intentionally memorized such technological information, ideas, concepts and\nunderstandings for the purpose of retaining and subsequently using or disclosing it for purposes other than as authorized by this Agreement.\n2. Confidential Information.\n2.1. Each Party recognizes and acknowledges the value of the Confidential Information and the damage that could result if the Confidential Information were used or\ndisclosed except as authorized by this Agreement. Except as otherwise required by applicable law or regulatory authority, each Party agrees to keep confidential and not\ndisclose, and cause its Representatives to keep confidential and not disclose, to any Person the Confidential Information it or its Representatives receives from the other Party\nor its Representatives without the Disclosing Party's prior written consent, except as provided below. The Receiving Party or its Representatives shall be entitled to disclose\nthe Confidential Information of the Disclosing Party and provide copies of the same, without the\nDisclosing Party's prior written consent, to those Representatives of the Receiving Party who need to know such Confidential Information solely for the purpose of evaluating\nthe Possible Transaction. The Receiving Party shall be responsible for any violations of any provision of this Agreement caused by any of the Receiving Party's\nRepresentatives.\n2.2. The Receiving Party acknowledges that the Evaluation Material is being furnished to the Receiving Party in consideration of the Receiving Party's agreement that\nit will not propose to the Disclosing Party or any other person any transaction between the Receiving Party and the Disclosing Party and/or its security holders or involving\nany\nof its securities or security holders unless the Disclosing Party shall have requested in writing that the Receiving Party make such a proposal, and that the Receiving Party\nwill not acquire, or assist, advise or encourage any other persons in acquiring, directly or indirectly, control of the Disclosing Party or any of the Disclosing Party's securities,\nbusinesses or assets for a period of two (2) years from the date of this Agreement unless the Disclosing Party shall have consented in advance in writing to any such action.\n2.3 The Receiving Party agrees that it will not use the Evaluation Material in any way directly or indirectly detrimental to the Disclosing Party. In particular, the\nReceiving Party agrees that it and its Representatives will not knowingly, as a result of knowledge or information obtained from the Evaluation Material or otherwise in\nconnection with the Possible Transaction, directly or indirectly: (i) solicit, divert or attempt to solicit or divert any business or customer of the Disclosing Party or any of its\naffiliates; nor (ii) solicit, the employment of, employ, divert or attempt any of the foregoing with respect to, any employee of the Disclosing Party or any of its affiliates\n3. Use of Confidential Information for Evaluation; Disclosure. Neither the Receiving Party nor any of its Representatives shall use the Confidential Information for\nany purpose, other than evaluation of the Possible Transaction. Each Party hereby acknowledges that it is aware, and that it will advise its Representatives who are informed\nas\nto the matters which are the subject of this Agreement, that United States securities laws prohibit any person who has received from an issuer material, non-public\nany information of Confidential other person concerning Information under circumstances the matters in this Agreement which in which are the shall it is subject reasonably extend of until this foreseeable Agreement the earlier that of from (a) such the purchasing person expiration is or likely of selling the to period securities purchase set forth or of sell such in such Section issuer securities. or 14 from of this The communicating Agreement, restrictions (b) on such the disclosure information Parties' and entry to use\ninto a separate, subsequent agreement that contains confidentiality and non-disclosure provisions that supersede this Agreement with respect to the Confidential Information,\nand (c) such time, if ever, the Confidential Information becomes publicly available (otherwise than through a breach of this Agreement). Except to the extent the Receiving\nParty's legal counsel advises the Receiving Party that disclosure is required by applicable law or regulatory authority, without the prior written consent of the Disclosing Party,\nthe Receiving Party will not, and will direct the Receiving Party's Representatives not to, disclose to any other Person that such Confidential Information has been requested\nor made available, that discussions or negotiations are taking place concerning the Possible Transaction, or any of the terms, conditions or other facts with respect to the\nPossible Transaction, including the status thereof, or the term of this Agreement.\n4. Requested Disclosure of Confidentialdential Information.\n4.1 In the event that a Receiving Party or anyone to whom the Receiving Party transmits such Confidential Information pursuant to this Agreement is legally requested\n(by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand or similar process) or otherwise required to disclose any\nConfidential Information of a Disclosing Party, the Receiving Party will, except as prohibited by law, provide the Disclosing Party with written notice of same, prior to\ndisclosing such Confidential Information, so that the Disclosing Party may seek an appropriate protective order and/or waive compliance with this Agreement. If, in the\nabsence of a protective order or the receipt of a waiver hereunder, the Receiving Party is nonetheless legally compelled to disclose such Confidential Information, it may,\nwithout liability hereunder, furnish only that portion of such Confidential Information that is legally required and will exercise reasonable commercial efforts to obtain\nassurance that confidential treatment will be accorded such Confidential Information.\n4.2 If either Party, in its sole judgment, determines that it is required by applicable securities laws to make disclosures or public statements prohibited by Paragraph 3,\nthe Party may make such disclosures or public statements as may be required by securities laws. The Disclosing Party shall provide the other Party with prior notice to the\nexten practicable.\nPage 2 of 5\n5. NO License; Use. Neither the execution of this Agreement, nor the furnishing of any materials or Confidential Information hereunder, shall be construed as granting\nor\nconferring any rights to the other Party, either expressly or by implication, estoppel or otherwise, any license under any trademark, patent, copyright, technological\ninformation or other information, or other intellectual property; provided, however, that a Person who has used or seen materials or information pursuant to this Agreement\nshall not be precluded from using or disclosing Residuals. Nothing in this Agreement shall be construed to limit the Receiving Party's right to independently develop\ninformation, materials, technology, or other products or services for itself or for others which may compete with the Disclosing Party so long as no disclosures or use in\nviolation of this Agreement has been made by the Receiving Party. Furthermore, nothing herein shall be construed as a representation or inference by Receiving Party that it\nhas not already developed, or may be in the process of developing, or may have already rightfully received or acquired from third parties, information similar to that\nConfidential Information to be disclosed by Disclosing Party hereunder.\n6. Ownership of Confidential Information. The Confidential information shall remain the property of the Disclosing Party, and the Disclosing Party may demand the\nreturn thereof at any time by written notice to the Receiving Party. Upon receipt of such notice, the Receiving Party shal (a) return to the Disclosing Party all Confidential\nInformation received by the Receiving Party or its Representatives from the Disclosing Party or its Representatives; and (b) destroy and cause each of its Representatives to\ndestroy each and every copy of any documents, drawings, data, memoranda and other written Materials together with any tapes and computer stored information or the parts\nthereof extracted from, embodying, containing or relating to such other party's Confidential Information; provided, however, that one (1) copy of the Confidential Information\nmay be retained by the Receiving Party's outside counsel on a confidential basis for purposes of verification. Any destruction pursuant to (b) in the preceding sentence shall be\npromptly confirmed in writing.\n7. NO Warranties. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives makes any representation or warranty hereunder as to\nthe accuracy or completeness of any Confidential Information of the Disclosing Party or other information disclosed pursuant to this Agreement, each Party agrees to assume\nful responsibility for all conclusions it derives from the Confidential Information. The Receiving Party agrees that neither the Disclosing Party nor its Representatives shall\nhave any liability hereunder to the Receiving Party or to any of the Receiving Party's Representatives on any basis (including, without limitation, in contract, tort, under\nfederal or state securities laws, or otherwise) as a result of the use of such Confidential Information by the Receiving Party and the Receiving Party's Representatives, it being\nunderstood that only those and warranties that be made to the the or its affiliates in a definitive transaction\nparticular\nrepresentations\nmay\nReceiving\nParty\nby\nDisclosing\nParty\nagreement, Party and its when, respective as and Representatives if it is executed, hereby and subject expressly to such disclaim limitations any and and all restrictions liability that as may may be be based, specified in whole in such or definitive in part, on agreement, errors or omissions shall have in any any legal Confidential effect. Each\nInformation furnished hereunder. Unless and until a definitive agreement (the "Definitive Agreement") with respect to a Possible Transaction has been executed and delivered\ndiscussions by the Parties relating hereto, thereto neither by Party virtue will of be this under Agreement any legal or any Obligation written of or any oral kind expression whatsoever with to respect proceed to such with a a Possible Possible Transaction Transaction by in whole any of or its in Representatives. part or to continue Prior to\nthe\nexecution and delivery of the Definitive Agreement, either party may terminate discussions and negotiations regarding a Possible Transaction at any time, wit lout any liability\nwhatsoever, save for the obligations and duties specifically agreed to herein For the purposes hereof, the term "Definitive Agreement" does not include an executed letter of\nintent or any other preliminary written agreement nor does it include any written or verbal acceptance of an offer or bid.\n8. Notices. Al notices, requests, consents, and other communications required or permitted hereunder shall be in writing and shall be personally delivered, mailed\nusing first-class, registered, or certified mail, postage prepaid, sent using a nationally recognized overnight courier to the following addresses or to such other address as the\nparties hereto may designate in writing:\nALCATEL LUCENT:\nALCATEL LUCENT\n600 Mountain Avenue\nPage 3 of 5\nMurray Hill, NJ 07974\nAttn: John R. McCord\nwith a copy to:\nALCATEL LUCENT\n600 Mountain Avenue\nMurray Hill, NJ 07974\nAttn: General Counsel\nMOTIVE:\nMOTIVE, INC.\n12515 Research Boulevard\nBuilding 5\nAustin, TX 78759\nUSA\nAttn: General Counsel\nAll such notices, requests, consents and other communications shall be deemed to be properly given (a) if delivered personally to the address as provided in this\nSection, upon delivery, (b) if sent by mail, three (3) business days after the same has been deposited in mail, addressed and postage prepaid as set forth above and (c)\nif\ndelivered by overnight courier to the address as provided in this Section, on the earlier of the first business day following the date sent by such overnight courier or upon\nreceipt (in each case regardless of whether such notice, request or other communication is received by any other person to whom a copy of such notice is to be delivered\npursuant to this Section). Any Party from time to time may change its address, facsimile number or other information for the purpose of notices to that Party by giving notice\nspecifying such change to the other Party hereto.\n9. Severability. If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms\nand provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.\n10. Entire Agreement: Amendments: Consent to Assignment. This Agreement comprises the full agreement between the Parties concerning the subject matter hereof.\nThis Agreement supersedes any prior understandings or agreements, regardless of form, between the Parties with respect to the subject matter hereof. No amendments,\nchanges or modifications may be made to this Agreement without the express written consent of each of the Parties hereto. This Agreement and the rights and obligations of a\nParty hereunder may not be assigned, directly, indirectly, by operation of law or otherwise, by either Part) without the prior written consent of the other Party.\n11. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts\nmade and to be performed therein, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law.\nThe state and federal courts located in New York shall have non-exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each\nParty\nconsents to the personal jurisdiction and venue of these courts. Each Party waives any objection that it may now or hereafter have to the laying of venue of any such\nproceeding in any court in the state of New York and any claim that it may now or hereafter have that any such proceeding in any court in the state of New York has been\nbrought in an inconvenient forum.\n12. Remedies; Legal Fees. Each Party acknowledges that the other would be irreparably injured if the Receiving Party breaches any of its obligations under this\nAgreement. The Parties each agree that money damages would not be a sufficient remedy for any breach of this Agreement and that, in the event of a breach by a Party or its\nRepresentatives, the other Party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for such breach. Such remedies shall not be\ndeemed to be the exclusive remedies for a breach of this Agreement by a Party or its Representatives but shall be in addition to all other remedies available at law or equity to\nthe non-breaching Party. Each Party expressly agrees to waive the defense that a remedy in damages will be adequate, and agrees to use its reasonable best efforts to cause its\nRepresentatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. In the event of litigation relating to this Agreement, if\na court of competent jurisdiction determines that a Party or any of its Representatives have breached\nPage 4 of 5\nthis Agreement, then such Party shall be liable and pay to the other Party the reasonable legal fees and expenses incurred by the other Party in connection with such litigation,\nincluding any appeal therefrom.\n13. Waiver. Each Party understands and agrees that no failure or delay by the other Party in exercising any right, power or privilege under this Agreement shall operate\nas a waiver thereof nor shal any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege hereunder.\n14. Term of Agreement. This Agreement and the obligations of the Parties hereunder shall terminate two years from the date hereof.\n15. Binding Effect. This Agreement shall benefit and be binding upon the Parties and their respective permitted successors and assigns.\n16. Construction. This Agreement has been negotiated by the Parties and their respective attorneys, and the language of this Agreemen shall not be construed for or\nagainst either Party\n17. Counterparts; Facsimile Signatures. This Agreement may be executed in two or more counterparts, each of which shall be binding as of the date first written\nabove. Each such copy shal be deemed an original, and it shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart.\nThis Agreement may be executed and delivered by facsimile and upon such delivery the facsimile signature will be deemed to have the same effect as if the original signature\nhad been delivered to the other party. The original signature copy shall be delivered to the other party by overnight courier. The failure to deliver the original signature copy\nand/or the nonreceipt of the original signature copy shall have no effect upon the binding and enforceable nature of this Agreement.\nIN\nWITNESS WHEREOF, this Nondisclosure Agreement has been executed by the parties hereto as of the day and year first written above.\nAlcatel-Lucent\nBy: /s/ Scott M. Ashby\nName: Scott M. Ashby\nTitle: DEPUTY CFO\nMotive, Inc.\na Delawara corporation\nBy: /s/ Jack Greenberg\nName: Jack Greenberg\nTitle: GENERAL COUNSEL & SECRETARY\nPage 5 of 5	EX-99.(E)(4) 4 p75864exv99wxeyx4y.htm EXHIBIT 99.(E)(4)\nExhibit (e)(4)\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (this “Agreement”), dated as of March 28, 2007, is made by and between Motive, Inc., a Delaware corporation, with a\nprincipal place of business at 12515 Research Boulevard, Building 5, Austin, Texas 78759 USA (hereinafter “Motive”) and Alcatel-Lucent, a a Societe Anonyme organized\nunder the laws of the Republic of France, with a principal office at 54 rue La Boetie, 75008 Paris, France (hereinafter “Alcatel Lucent”).\nRECITALS\nWHEREAS, Motive and Alcatel Lucent (jointly, the “Parties” and each individually, a “Party”) desire to enter into discussions related to a possible business\ncombination (the “Possible Transaction”), and these discussions will of necessity involve the disclosure by one Party (the “Disclosing Party”) to the other Party (the\n“ Receiving Party”) of confidential and proprietary information; and\nWHEREAS, the Parties desire to (i) keep their discussions and the nature and scope thereof confidential; and (ii) reach an understanding with respect to the disclosure\nof such information and the confidentiality of the discussions in general;\nNOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the parties hereto agree as follows:\n1. Definitions. The following terms shall have the meanings set forth below:\n1.1. “ Confidential Information” includes all non-public information, whether written or oral (whatever the form or storage medium), or gathered by inspection,\nor acquired, directly or indirectly, by one Party or its Representatives from the other Party or its Representatives in connection with a Possible Transaction, regardless\nof whether such information is specifically identified as “confidential.” The term “Confidential Information” does not include information which (i) was known to the\nReceiving Party or its Representatives or was in its or any of its Representatives’ possession prior to the date of its disclosure pursuant to this Agreement (except for\ninformation which was previously disclosed to the Receiving Party or its Representatives under an obligation of confidentiality to the Disclosing Party or its\nRepresentatives and which continues to remain subject to those confidentiality obligations); (ii) is or becomes generally available to the public other than through an\nunauthorized disclosure by the Receiving Party or its Representatives in violation of this Agreement; (iii) becomes available to the Receiving Party or its\nRepresentatives from a source other than the Disclosing Party or its Representatives, provided that such source is not, to the Receiving Party’s knowledge, prohibited\nfrom transmitting such Confidential Information to the Receiving Party by a contractual, legal or fiduciary obligation to the Disclosing Party or its Representatives; or\n(iv) is independently developed by the Receiving Party or any of its Representatives as demonstrated by the written records of such Party or Representatives which\nhave not had access to the other Party’s Confidential Information.\n1.2. “ Person”shall be broadly interpreted to include, without limitation, any individual, corporation, company, group, partnership, limited liability company or\nother entity.\n1.3. “Representatives” means a Party’s affiliates and its and their respective directors, officers, employees, agents or representatives, including, without\nlimitation, its and their respective attorneys, accountants, consultants and financial advisors.\n1.4. “Residuals” means technological information and all ideas, concepts, and understandings related thereto that would be inadvertently retained in non-\ntangible form in the unaided memory of an ordinary Person unless such Person intentionally memorized such technological information, ideas, concepts and\nunderstandings for the purpose of retaining and subsequently using or disclosing it for purposes other than as authorized by this Agreement.\n2. Confidential Information.\n2.1. Each Party recognizes and acknowledges the value of the Confidential Information and the damage that could result if the Confidential Information were used or\ndisclosed except as authorized by this Agreement. Except as otherwise required by applicable law or regulatory authority, each Party agrees to keep confidential and not\ndisclose, and cause its Representatives to keep confidential and not disclose, to any Person the Confidential Information it or its Representatives receives from the other Party\nor its Representatives without the Disclosing Party’s prior written consent, except as provided below. The Receiving Party or its Representatives shall be entitled to disclose\nthe Confidential Information of the Disclosing Party and provide copies of the same, without the\nDisclosing Party’s prior written consent, to those Representatives of the Receiving Party who need to know such Confidential Information solely for the purpose of evaluating\nthe Possible Transaction. The Receiving Party shall be responsible for any violations of any provision of this Agreement caused by any of the Receiving Party’s\nRepresentatives.\n2.2. The Receiving Party acknowledges that the Evaluation Material is being furnished to the Receiving Party in consideration of the Receiving Party’s agreement that\nit will not propose to the Disclosing Party or any other person any transaction between the Receiving Party and the Disclosing Party and/or its security holders or involving\nany of its securities or security holders unless the Disclosing Party shall have requested in writing that the Receiving Party make such a proposal, and that the Receiving Party\nwill not acquire, or assist, advise or encourage any other persons in acquiring, directly or indirectly, control of the Disclosing Party or any of the Disclosing Party’s securities,\nbusinesses or assets for a period of two (2) years from the date of this Agreement unless the Disclosing Party shall have consented in advance in writing to any such action.\n2.3 The Receiving Party agrees that it will not use the Evaluation Material in any way directly or indirectly detrimental to the Disclosing Party. In particular, the\nReceiving Party agrees that it and its Representatives will not knowingly, as a result of knowledge or information obtained from the Evaluation Material or otherwise in\nconnection with the Possible Transaction, directly or indirectly: (i) solicit, divert or attempt to solicit or divert any business or customer of the Disclosing Party or any of its\naffiliates; nor (ii) solicit, the employment of, employ, divert or attempt any of the foregoing with respect to, any employee of the Disclosing Party or any of its affiliates\n3. Use of Confidential Information for Evaluation; Disclosure. Neither the Receiving Party nor any of its Representatives shall use the Confidential Information for\nany purpose, other than evaluation of the Possible Transaction. Each Party hereby acknowledges that it is aware, and that it will advise its Representatives who are informed\nas to the matters which are the subject of this Agreement, that United States securities laws prohibit any person who has received from an issuer material, non-public\ninformation concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer or from communicating such information to\nany other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. The restrictions on disclosure and use\nof Confidential Information in this Agreement shall extend until the earlier of (a) the expiration of the period set forth in Section 14 of this Agreement, (b) the Parties’ entry\ninto a separate, subsequent agreement that contains confidentiality and non-disclosure provisions that supersede this Agreement with respect to the Confidential Information,\nand (c) such time, if ever, the Confidential Information becomes publicly available (otherwise than through a breach of this Agreement). Except to the extent the Receiving\nParty’s legal counsel advises the Receiving Party that disclosure is required by applicable law or regulatory authority, without the prior written consent of the Disclosing Party,\nthe Receiving Party will not, and will direct the Receiving Party’s Representatives not to, disclose to any other Person that such Confidential Information has been requested\nor made available, that discussions or negotiations are taking place concerning the Possible Transaction, or any of the terms, conditions or other facts with respect to the\nPossible Transaction, including the status thereof, or the term of this Agreement.\n4. Requested Disclosure of Confidentialdential Information.\n4.1 In the event that a Receiving Party or anyone to whom the Receiving Party transmits such Confidential Information pursuant to this Agreement is legally requested\n(by oral questions, interrogatories, request for information or documents, subpoena, civil investigative demand or similar process) or otherwise required to disclose any\nConfidential Information of a Disclosing Party, the Receiving Party will, except as prohibited by law, provide the Disclosing Party with written notice of same, prior to\ndisclosing such Confidential Information, so that the Disclosing Party may seek an appropriate protective order and/or waive compliance with this Agreement. If, in the\nabsence of a protective order or the receipt of a waiver hereunder, the Receiving Party is nonetheless legally compelled to disclose such Confidential Information, it may,\nwithout liability hereunder, furnish only that portion of such Confidential Information that is legally required and will exercise reasonable commercial efforts to obtain\nassurance that confidential treatment will be accorded such Confidential Information.\n4.2 If either Party, in its sole judgment, determines that it is required by applicable securities laws to make disclosures or public statements prohibited by Paragraph 3,\nthe Party may make such disclosures or public statements as may be required by securities laws. The Disclosing Party shall provide the other Party with prior notice to the\nextent practicable.\nPage2of5\n5. No License; Use. Neither the execution of this Agreement, nor the furnishing of any materials or Confidential Information hereunder, shall be construed as granting\nor conferring any rights to the other Party, either expressly or by implication, estoppel or otherwise, any license under any trademark, patent, copyright, technological\ninformation or other information, or other intellectual property; provided, however, that a Person who has used or seen materials or information pursuant to this Agreement\nshall not be precluded from using or disclosing Residuals. Nothing in this Agreement shall be construed to limit the Receiving Party’s right to independently develop\ninformation, materials, technology, or other products or services for itself or for others which may compete with the Disclosing Party so long as no disclosures or use in\nviolation of this Agreement has been made by the Receiving Party. Furthermore, nothing herein shall be construed as a representation or inference by Receiving Party that it\nhas not already developed, or may be in the process of developing, or may have already rightfully received or acquired from third parties, information similar to that\nConfidential Information to be disclosed by Disclosing Party hereunder.\n6. Ownership of Confidential Information. The Confidential information shall remain the property of the Disclosing Party, and the Disclosing Party may demand the\nreturn thereof at any time by written notice to the Receiving Party. Upon receipt of such notice, the Receiving Party shall (a) return to the Disclosing Party all Confidential\nInformation received by the Receiving Party or its Representatives from the Disclosing Party or its Representatives; and (b) destroy and cause each of its Representatives to\ndestroy each and every copy of any documents, drawings, data, memoranda and other written Materials together with any tapes and computer stored information or the parts\nthereof extracted from, embodying, containing or relating to such other party’s Confidential Information; provided, however, that one (1) copy of the Confidential Information\nmay be retained by the Receiving Party’s outside counsel on a confidential basis for purposes of verification. Any destruction pursuant to (b) in the preceding sentence shall be\npromptly confirmed in writing.\n7. No Warranties. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives makes any representation or warranty hereunder as to\nthe accuracy or completeness of any Confidential Information of the Disclosing Party or other information disclosed pursuant to this Agreement, each Party agrees to assume\nfull responsibility for all conclusions it derives from the Confidential Information. The Receiving Party agrees that neither the Disclosing Party nor its Representatives shall\nhave any liability hereunder to the Receiving Party or to any of the Receiving Party’s Representatives on any basis (including, without limitation, in contract, tort, under\nfederal or state securities laws, or otherwise) as a result of the use of such Confidential Information by the Receiving Party and the Receiving Party’s Representatives, it being\nunderstood that only those particular representations and warranties that may be made to the Receiving Party by the Disclosing Party or its affiliates in a definitive transaction\nagreement, when, as and if it is executed, and subject to such limitations and restrictions as may be specified in such definitive agreement, shall have any legal effect. Each\nParty and its respective Representatives hereby expressly disclaim any and all liability that may be based, in whole or in part, on errors or omissions in any Confidential\nInformation furnished hereunder. Unless and until a definitive agreement (the “Definitive Agreement”) with respect to a Possible Transaction has been executed and delivered\nby the Parties hereto, neither Party will be under any legal Obligation of any kind whatsoever to proceed with a Possible Transaction in whole or in part or to continue\ndiscussions relating thereto by virtue of this Agreement or any written or oral expression with respect to such a Possible Transaction by any of its Representatives. Prior to the\nexecution and delivery of the Definitive Agreement, either party may terminate discussions and negotiations regarding a Possible Transaction at any time, wit lout any liability\nwhatsoever, save for the obligations and duties specifically agreed to herein For the purposes hereof, the term “Definitive Agreement” does not include an executed letter of\nintent or any other preliminary written agreement nor does it include any written or verbal acceptance of an offer or bid.\n8. Notices. All notices, requests, consents, and other communications required or permitted hereunder shall be in writing and shall be personally delivered, mailed\nusing first-class, registered, or certified mail, postage prepaid, sent using a nationally recognized overnight courier to the following addresses or to such other address as the\nparties hereto may designate in writing:\nALCATEL LUCENT:\nALCATEL LUCENT\n600 Mountain Avenue\nPage3of5\nMurray Hill, NJ 07974\nAttn: John R. McCord\nwith a copy to:\nALCATEL LUCENT\n600 Mountain Avenue\nMurray Hill, NJ 07974\nAttn: General Counsel\nMOTIVE:\nMOTIVE, INC .\n12515 Research Boulevard\nBuilding 5\nAustin, TX 78759\nUSA\nAttn: General Counsel\nAll such notices, requests, consents and other communications shall be deemed to be properly given (a) if delivered personally to the address as provided in this\nSection, upon delivery, (b) if sent by mail, three (3) business days after the same has been deposited in mail, addressed and postage prepaid as set forth above and (c) if\ndelivered by overnight courier to the address as provided in this Section, on the earlier of the first business day following the date sent by such overnight courier or upon\nreceipt (in each case regardless of whether such notice, request or other communication is received by any other person to whom a copy of such notice is to be delivered\npursuant to this Section). Any Party from time to time may change its address, facsimile number or other information for the purpose of notices to that Party by giving notice\nspecifying such change to the other Party hereto.\n9. Severability. If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms\nand provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.\n10. Entire Agreement: Amendments: Consent to Assignment. This Agreement comprises the full agreement between the Parties concerning the subject matter hereof.\nThis Agreement supersedes any prior understandings or agreements, regardless of form, between the Parties with respect to the subject matter hereof. No amendments,\nchanges or modifications may be made to this Agreement without the express written consent of each of the Parties hereto. This Agreement and the rights and obligations of a\nParty hereunder may not be assigned, directly, indirectly, by operation of law or otherwise, by either Part) without the prior written consent of the other Party.\n11. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts\nmade and to be performed therein, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law.\nThe state and federal courts located in New York shall have non-exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each Party\nconsents to the personal jurisdiction and venue of these courts. Each Party waives any objection that it may now or hereafter have to the laying of venue of any such\nproceeding in any court in the state of New York and any claim that it may now or hereafter have that any such proceeding in any court in the state of New York has been\nbrought in an inconvenient forum.\n12. Remedies; Legal Fees. Each Party acknowledges that the other would be irreparably injured if the Receiving Party breaches any of its obligations under this\nAgreement. The Parties each agree that money damages would not be a sufficient remedy for any breach of this Agreement and that, in the event of a breach by a Party or its\nRepresentatives, the other Party shall be entitled to equitable relief, including injunction and specific performance, as a remedy for such breach. Such remedies shall not be\ndeemed to be the exclusive remedies for a breach of this Agreement by a Party or its Representatives but shall be in addition to all other remedies available at law or equity to\nthe non-breaching Party. Each Party expressly agrees to waive the defense that a remedy in damages will be adequate, and agrees to use its reasonable best efforts to cause its\nRepresentatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. In the event of litigation relating to this Agreement, if\na court of competent jurisdiction determines that a Party or any of its Representatives have breached\nPage4of5\nthis Agreement, then such Party shall be liable and pay to the other Party the reasonable legal fees and expenses incurred by the other Party in connection with such litigation,\nincluding any appeal therefrom.\n13. Waiver. Each Party understands and agrees that no failure or delay by the other Party in exercising any right, power or privilege under this Agreement shall operate\nas a waiver thereof nor shall any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege hereunder.\n14. Term of Agreement. This Agreement and the obligations of the Parties hereunder shall terminate two years from the date hereof.\n15. Binding Effect. This Agreement shall benefit and be binding upon the Parties and their respective permitted successors and assigns.\n16. Construction. This Agreement has been negotiated by the Parties and their respective attorneys, and the language of this Agreement shall not be construed for or\nagainst either Party.\n17. Counterparts; Facsimile Signatures. This Agreement may be executed in two or more counterparts, each of which shall be binding as of the date first written\nabove. Each such copy shall be deemed an original, and it shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart.\nThis Agreement may be executed and delivered by facsimile and upon such delivery the facsimile signature will be deemed to have the same effect as if the original signature\nhad been delivered to the other party. The original signature copy shall be delivered to the other party by overnight courier. The failure to deliver the original signature copy\nand/or the nonreceipt of the original signature copy shall have no effect upon the binding and enforceable nature of this Agreement.\nIN WITNESS WHEREOF, this Nondisclosure Agreement has been executed by the parties hereto as of the day and year first written above.\nAlcatel-Lucent\nBy: /s/ Scott M. Ashby\nName: Scott M. Ashby\nTitle: DEPUTY CFO\nMotive, Inc.\na Delawara corporation\nBy: /s/ Jack Greenberg\nName: Jack Greenberg\nTitle: GENERAL COUNSEL & SECRETARY\nPage5of5
+0998fea954e55ef7d03d9702a5565d61.pdf	effective_date jurisdiction party term	EX-10 .1 5 ules_ex101.htm CONSULTING AGREEMENT\nNON-CIRCUMVENT AGREEMENT\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nThis Non-Disclosure/non circumvent and Confidentiality agreement entered into between\nTopSight Corporation, a Nevada Corporation, hereinafter referred to as “TOPSIGHT”, with its corporate address at 4616 W.\nSahara Ave, STE 256, Las Vegas, NV 89102, and\nUnited Lumicon Exhibition Services, Inc. , a(n) Nevada company, hereinafter referred to as “COMPANY”, with its\ncorporate address at 3984 Vanessa Dr, Las Vegas, NV 89103 , Dated May 21 , 2015\nThe Parties agree to respect the integrity and tangible value of this agreement between them.\nThis agreement will remain in effect between said parties for 5 years from the date of the last exchange of information or business\ntransaction.\nFor each entity/corporation/business, a one time non-refundable $1250.00 (One Thousand Two Hundred and Fifty Dollar)\nadministrative fee to be invoiced and payable to TOPSIGHT within 3 (Three) business days of the agreement acceptance.\nCOMPANY shall be responsible for out-of-pocket cost including, but not limited to state incorporation fees/registration fees,\naccounting and bookkeeping cost, full auditing fees, legal fee, EDGAR fee, market maker fee etc.\nShould any agreement be completed with introduction parties on any entity/corporation/business or person,\ncompensation/consulting fee for TOPSIGHT, in the form of equity per entity that is being provided services, will be incorporated\ninto said deal per deal, and shall be due and payable upon execution of this agreement. For TOPSIGHT the\ncompensation/consulting fee will be payable in the form of equity and will consist of an issuance of 4,675,000 shares of client’s\ncommon stock.\nCOMPANY shall be responsible for out-of-pocket cost including, but not limited to state incorporation fees/registration fees,\naccounting and bookkeeping cost, full auditing fees, legal fee, EDGAR fee, Transfer Agent fee, DTC Eligibility fee, Listing fee etc.\nBecause of THIS AGREEMENT, the Parties involved in this transaction may learn from one another, or from principals, the names\nand telephone numbers of vendors, borrowers, lenders, agents, brokers, banks, lending corporations, individuals and/or trusts, or\nbuyers and sellers hereinafter called contacts. The Parties with this acknowledge, accept and agree that the identities of the contacts\nwill be recognized by the other Party as exclusive and valuable contacts of the introducing Party and will remain so for the duration\nof this agreement.\nThe Parties agree to keep confidential the names of any contacts introduced or revealed to the other party, and that their firm,\ncompany, associates, corporations, joint ventures, partnerships, divisions, subsidiaries, employees, agents, heirs, assigns, designees,\nor consultants, friends and referrers will not contact, deal with, negotiate or participate in any transactions with any of the contacts\nwithout first entering a written agreement with the Party who provided such contact unless that Party gives prior written permission.\nSuch confidentiality will include any names, addresses, telephone, telex, facsimile numbers, and/or other pertinent information\ndisclosed or revealed to either Party.\nThe Parties agree not to disclose, reveal or make use of any information during discussion or observation regarding methods,\nconcepts, ideas, product/services, or proposed new products or services, nor to do business with any of the revealed contacts without\nthe written consent of the introducing party or parties.\nInitial /s/ ZC Initial /s/ XZ\nIn case of circumvention, the parties agree and guarantee that they will pay a legal monetary penalty that is equal to the commission\nor fee the circumvented Party should have realized in such transactions, by the person(s) engaged on the circumvention for each\noccurrence. If either party commences legal proceedings to interpret or enforce the terms of THIS AGREEMENT, the prevailing\nParty will be entitled to recover court costs and reasonable attorney fees.\nThis AGREEMENT may only be terminated by the mutual written agreement of ALL Parties during the initial term of this\nAgreement or if any material provision of this Agreement is breached the non-breaching party may terminate this Agreement by\nproviding five (5) days written notice to the breaching party.\nThe parties will construe THIS AGREEMENT in accordance with the laws of the State of Nevada. If any provision of this\nagreement is found to be void by any court of competent jurisdiction, the remaining provisions will remain in force and effect.\nTHIS AGREEMENT contains the entire understanding between the Parties and any waiver, amendment or modification to THIS\nAGREEMENT will be subject to the above conditions and must be attached hereto.\nUpon execution of THIS AGREEMENT by signature below, the Parties agree that any individual, firm company, associates,\ncorporations, joint ventures, partnerships, divisions, subsidiaries, employees, agents, heirs, assigns, designees or consultants of\nwhich the signee is an agent, officer, heir, successor, assign or designee is bound by the terms of THIS AGREEMENT.\nA facsimile copy of this Non-Circumvention, Non-Disclosure and Confidentiality Agreement shall constitute a legal and binding\ninstrument. By setting forth my hand below I warrant that I have complete authority to enter into THIS AGREEMENT.\nFor: TopSight Corporation\n/s/ Zixiao Chen\nPresident\nMay 21, 2015\nZixiao Chen\nTitle\nDate\nFor: United Lumicon Exhibition Services, Inc.\n/s/ Xu Zhang\nPresident\nMay 21, 2015\nXu Zhang\nTitle\nDate	EX-10.1 5 ules_ex101.htm CONSULTING AGREEMENT\nNON-CIRCUMVENT AGREEMENT\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nThis Non-Disclosure/non circumvent and Confidentiality agreement entered into between\nTopSight Corporation, a Nevada Corporation, hereinafter referred to as “TOPSIGHT”, with its corporate address at 4616 W.\nSahara Ave, STE 256, Las Vegas, NV 89102, and\nUnited Lumicon Exhibition Services, Inc. , a(n) _Nevada company, hereinafter referred to as “COMPANY?”, with its\ncorporate address at _3984 Vanessa Dr, L.as Vegas, NV 89103 , Dated _May 21 , 2015\nThe Parties agree to respect the integrity and tangible value of this agreement between them.\nThis agreement will remain in effect between said parties for 5 years from the date of the last exchange of information or business\ntransaction.\nFor each entity/corporation/business, a one time non-refundable $1250.00 (One Thousand Two Hundred and Fifty Dollar)\nadministrative fee to be invoiced and payable to TOPSIGHT within 3 (Three) business days of the agreement acceptance.\nCOMPANY shall be responsible for out-of-pocket cost including, but not limited to state incorporation fees/registration fees,\naccounting and bookkeeping cost, full auditing fees, legal fee, EDGAR fee, market maker fee etc.\nShould any agreement be completed with introduction parties on any entity/corporation/business or person,\ncompensation/consulting fee for TOPSIGHT, in the form of equity per entity that is being provided services, will be incorporated\ninto said deal per deal, and shall be due and payable upon execution of this agreement. For TOPSIGHT the\ncompensation/consulting fee will be payable in the form of equity and will consist of an issuance of 4,675,000 shares of client’s\ncommon stock.\nCOMPANY shall be responsible for out-of-pocket cost including, but not limited to state incorporation fees/registration fees,\naccounting and bookkeeping cost, full auditing fees, legal fee, EDGAR fee, Transfer Agent fee, DTC Eligibility fee, Listing fee etc.\nBecause of THIS AGREEMENT, the Parties involved in this transaction may learn from one another, or from principals, the names\nand telephone numbers of vendors, borrowers, lenders, agents, brokers, banks, lending corporations, individuals and/or trusts, or\nbuyers and sellers hereinafter called contacts. The Parties with this acknowledge, accept and agree that the identities of the contacts\nwill be recognized by the other Party as exclusive and valuable contacts of the introducing Party and will remain so for the duration\nof this agreement.\nThe Parties agree to keep confidential the names of any contacts introduced or revealed to the other party, and that their firm,\ncompany, associates, corporations, joint ventures, partnerships, divisions, subsidiaries, employees, agents, heirs, assigns, designees,\nor consultants, friends and referrers will not contact, deal with, negotiate or participate in any transactions with any of the contacts\nwithout first entering a written agreement with the Party who provided such contact unless that Party gives prior written permission.\nSuch confidentiality will include any names, addresses, telephone, telex, facsimile numbers, and/or other pertinent information\ndisclosed or revealed to either Party.\nThe Parties agree not to disclose, reveal or make use of any information during discussion or observation regarding methods,\nconcepts, ideas, product/services, or proposed new products or services, nor to do business with any of the revealed contacts without\nthe written consent of the introducing party or parties.\nInitial /s/ ZC Initial /s/ XZ\ne\nIn case of circumvention, the parties agree and guarantee that they will pay a legal monetary penalty that is equal to the commission\nor fee the circumvented Party should have realized in such transactions, by the person(s) engaged on the circumvention for each\noccurrence. If either party commences legal proceedings to interpret or enforce the terms of THIS AGREEMENT, the prevailing\nParty will be entitled to recover court costs and reasonable attorney fees.\nThis AGREEMENT may only be terminated by the mutual written agreement of ALL Parties during the initial term of this\nAgreement or if any material provision of this Agreement is breached the non-breaching party may terminate this Agreement by\nproviding five (5) days written notice to the breaching party.\nThe parties will construe THIS AGREEMENT in accordance with the laws of the State of Nevada. If any provision of this\nagreement is found to be void by any court of competent jurisdiction, the remaining provisions will remain in force and effect.\nTHIS AGREEMENT contains the entire understanding between the Parties and any waiver, amendment or modification to THIS\nAGREEMENT will be subject to the above conditions and must be attached hereto.\nUpon execution of THIS AGREEMENT by signature below, the Parties agree that any individual, firm company, associates,\ncorporations, joint ventures, partnerships, divisions, subsidiaries, employees, agents, heirs, assigns, designees or consultants of\nwhich the signee is an agent, officer, heir, successor, assign or designee is bound by the terms of THIS AGREEMENT.\nA facsimile copy of this Non-Circumvention, Non-Disclosure and Confidentiality Agreement shall constitute a legal and binding\ninstrument. By setting forth my hand below I warrant that I have complete authority to enter into THIS AGREEMENT.\nFor: TopSight Corporation President May 21, 2015\nTitle Date\nPresident May 21, 2015\nTitle Date\n	EX-10.1 5 ules_ex101.htm CONSULTING AGREEMENT\nNON-CIRCUMVENT AGREEMENT\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nThis Non-Disclosure/non circumvent and Confidentiality agreement entered into between\nTopSight Corporation, a Nevada Corporation, hereinafter referred to as "TOPSIGHT", with its corporate address at 4616 W.\nSahara Ave, STE 256, Las Vegas, NV 89102, and\nUnited Lumicon Exhibition Services, Inc. a(n) Nevada company, hereinafter referred to as "COMPANY", with its\ncorporate address at 3984 Vanessa Dr, Las Vegas, NV 89103 Dated May 21 2015\nThe Parties agree to respect the integrity and tangible value of this agreement between them.\nThis agreement will remain in effect between said parties for 5 years from the date of the last exchange of information or business\ntransaction.\nFor each entity/corporation/business, a one time non-refundable $1250.00 (One Thousand Two Hundred and Fifty Dollar)\nadministrative fee to be invoiced and payable to TOPSIGHT within 3 (Three) business days of the agreement acceptance.\nCOMPANY shall be responsible for out-of-pocket cost including, but not limited to state incorporation fees/registration fees,\naccounting and bookkeeping cost, full auditing fees, legal fee, EDGAR fee, market maker fee etc.\nShould any agreement be completed with introduction parties on any entity/corporation/busines or person,\ncompensation/consulting fee for TOPSIGHT, in the form of equity per entity that is being provided services, will be incorporated\ninto said deal per deal, and shall be due and payable upon execution of this agreement. For TOPSIGHT the\ncompensation/consulting fee will be payable in the form of equity and will consist of an issuance of 4,675,000 shares of client's\ncommon stock.\nCOMPANY shall be responsible for out-of-pocket cost including, but not limited to state incorporation fees/registration fees,\naccounting and bookkeeping cost, full auditing fees, legal fee, EDGAR fee, Transfer Agent fee, DTC Eligibility fee, Listing fee etc.\nBecause of THIS AGREEMENT, the Parties involved in this transaction may learn from one another, or from principals, the names\nand telephone numbers of vendors, borrowers, lenders, agents, brokers, banks, lending corporations, individuals and/or trusts, or\nbuyers\nand\nsellers\nhereinafter\ncalled\ncontacts.\nThe\nParties\nwith\nthis\nacknowledge,\naccept\nand\nagree\nthat\nthe\nidentities\nof\nthe\ncontacts\nwill be recognized by the other Party as exclusive and valuable contacts of the introducing Party and will remain so for the duration\nof this agreement.\nThe Parties agree to keep confidential the names of any contacts introduced or revealed to the other party, and that their firm,\ncompany, associates, corporations, joint ventures, partnerships, divisions, subsidiaries, employees, agents, heirs, assigns, designees,\nor consultants, friends and referrers will not contact, deal with, negotiate or participate in any transactions with any of the contacts\nwithout first entering a written agreement with the Party who provided such contact unless that Party gives prior written permission\nSuch confidentiality will include any names, addresses, telephone, telex, facsimile numbers, and/or other pertinent information\ndisclosed or revealed to either Party.\nThe Parties agree not to disclose, reveal or make use of any information during discussion or observation regarding methods,\nconcepts, ideas, product/services, or proposed new products or services, nor to do business with any of the revealed contacts without\nthe written consent of the introducing party or parties.\nInitial /s/ ZC Initial /s/ XZ\nIn case of circumvention, the parties agree and guarantee that they will pay a legal monetary penalty that is equal to the commission\nor fee the circumvented Party should have realized in such transactions, by the person(s) engaged on the circumvention for each\noccurrence. If either party commences legal proceedings to interpret or enforce the terms of THIS AGREEMENT, the prevailing\nParty will be entitled to recover court costs and reasonable attorney fees.\nThis AGREEMENT may only be terminated by the mutual written agreement of ALL Parties during the initial term of this\nAgreement or if any material provision of this Agreement is breached the non-breaching party may terminate this Agreement\nby\nproviding five (5) days written notice to the breaching party.\nThe parties will construe THIS AGREEMENT in accordance with the laws of the State of Nevada. If any provision of this\nagreement is found to be void by any court of competent jurisdiction, the remaining provisions will remain in force and effect.\nTHIS AGREEMENT contains the entire understanding between the Parties and any waiver, amendment or modification to THIS\nAGREEMENT will be subject to the above conditions and must be attached hereto.\nUpon execution of THIS AGREEMENT by signature below, the Parties agree that any individual, firm company, associates,\ncorporations, joint ventures, partnerships, divisions, subsidiaries, employees, agents, heirs, assigns, designees or consultants of\nwhich the signee is an agent, officer, heir, successor, assign or designee is bound by the terms of THIS AGREEMENT.\nA facsimile copy of this Non-Circumvention, Non-Disclosure and Confidentiality Agreement shall constitute a legal and binding\ninstrument. By setting forth my hand below I warrant that I have complete authority to enter into THIS AGREEMENT.\nFor: TopSight Corporation\n/s/ Zixiao Chen\nPresident\nMay 21, 2015\nZixiao Chen\nTitle\nDate\nFor: United Lumicon Exhibition Services, Inc.\n/s/ Xu Zhang\nPresident\nMay. 21, 2015\nXu Zhang\nTitle\nDate	EX-10 .1 5 ules_ex101.htm CONSULTING AGREEMENT\nNON-CIRCUMVENT AGREEMENT\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nThis Non-Disclosure/non circumvent and Confidentiality agreement entered into between\nTopSight Corporation, a Nevada Corporation, hereinafter referred to as “TOPSIGHT”, with its corporate address at 4616 W.\nSahara Ave, STE 256, Las Vegas, NV 89102, and\nUnited Lumicon Exhibition Services, Inc. , a(n) Nevada company, hereinafter referred to as “COMPANY”, with its\ncorporate address at 3984 Vanessa Dr, Las Vegas, NV 89103 , Dated May 21 , 2015\nThe Parties agree to respect the integrity and tangible value of this agreement between them.\nThis agreement will remain in effect between said parties for 5 years from the date of the last exchange of information or business\ntransaction.\nFor each entity/corporation/business, a one time non-refundable $1250.00 (One Thousand Two Hundred and Fifty Dollar)\nadministrative fee to be invoiced and payable to TOPSIGHT within 3 (Three) business days of the agreement acceptance.\nCOMPANY shall be responsible for out-of-pocket cost including, but not limited to state incorporation fees/registration fees,\naccounting and bookkeeping cost, full auditing fees, legal fee, EDGAR fee, market maker fee etc.\nShould any agreement be completed with introduction parties on any entity/corporation/business or person,\ncompensation/consulting fee for TOPSIGHT, in the form of equity per entity that is being provided services, will be incorporated\ninto said deal per deal, and shall be due and payable upon execution of this agreement. For TOPSIGHT the\ncompensation/consulting fee will be payable in the form of equity and will consist of an issuance of 4,675,000 shares of client’s\ncommon stock.\nCOMPANY shall be responsible for out-of-pocket cost including, but not limited to state incorporation fees/registration fees,\naccounting and bookkeeping cost, full auditing fees, legal fee, EDGAR fee, Transfer Agent fee, DTC Eligibility fee, Listing fee etc.\nBecause of THIS AGREEMENT, the Parties involved in this transaction may learn from one another, or from principals, the names\nand telephone numbers of vendors, borrowers, lenders, agents, brokers, banks, lending corporations, individuals and/or trusts, or\nbuyers and sellers hereinafter called contacts. The Parties with this acknowledge, accept and agree that the identities of the contacts\nwill be recognized by the other Party as exclusive and valuable contacts of the introducing Party and will remain so for the duration\nof this agreement.\nThe Parties agree to keep confidential the names of any contacts introduced or revealed to the other party, and that their firm,\ncompany, associates, corporations, joint ventures, partnerships, divisions, subsidiaries, employees, agents, heirs, assigns, designees,\nor consultants, friends and referrers will not contact, deal with, negotiate or participate in any transactions with any of the contacts\nwithout first entering a written agreement with the Party who provided such contact unless that Party gives prior written permission.\nSuch confidentiality will include any names, addresses, telephone, telex, facsimile numbers, and/or other pertinent information\ndisclosed or revealed to either Party.\nThe Parties agree not to disclose, reveal or make use of any information during discussion or observation regarding methods,\nconcepts, ideas, product/services, or proposed new products or services, nor to do business with any of the revealed contacts without\nthe written consent of the introducing party or parties.\nInitial /s/ ZC Initial /s/ XZ\nIn case of circumvention, the parties agree and guarantee that they will pay a legal monetary penalty that is equal to the commission\nor fee the circumvented Party should have realized in such transactions, by the person(s) engaged on the circumvention for each\noccurrence. If either party commences legal proceedings to interpret or enforce the terms of THIS AGREEMENT, the prevailing\nParty will be entitled to recover court costs and reasonable attorney fees.\nThis AGREEMENT may only be terminated by the mutual written agreement of ALL Parties during the initial term of this\nAgreement or if any material provision of this Agreement is breached the non-breaching party may terminate this Agreement by\nproviding five (5) days written notice to the breaching party.\nThe parties will construe THIS AGREEMENT in accordance with the laws of the State of Nevada. If any provision of this\nagreement is found to be void by any court of competent jurisdiction, the remaining provisions will remain in force and effect.\nTHIS AGREEMENT contains the entire understanding between the Parties and any waiver, amendment or modification to THIS\nAGREEMENT will be subject to the above conditions and must be attached hereto.\nUpon execution of THIS AGREEMENT by signature below, the Parties agree that any individual, firm company, associates,\ncorporations, joint ventures, partnerships, divisions, subsidiaries, employees, agents, heirs, assigns, designees or consultants of\nwhich the signee is an agent, officer, heir, successor, assign or designee is bound by the terms of THIS AGREEMENT.\nA facsimile copy of this Non-Circumvention, Non-Disclosure and Confidentiality Agreement shall constitute a legal and binding\ninstrument. By setting forth my hand below I warrant that I have complete authority to enter into THIS AGREEMENT.\nFor: TopSight Corporation\n/s/ Zixiao Chen\nPresident\nMay 21, 2015\nZixiao Chen\nTitle\nDate\nFor: United Lumicon Exhibition Services, Inc.\n/s/ Xu Zhang\nPresident\nMay 21, 2015\nXu Zhang\nTitle\nDate
+0a42e159b33ed521c4157d8babfaf3c1.pdf	effective_date jurisdiction party term	EX-10.3 5 a10-14025_1ex10d3.htm EX-10.3\nExhibit 10.3\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (this “ Agreement”), dated as of July 16, 2010, is entered into by and among Financière Elitech\nSAS, a société par actions simplifiée organized under the laws of France (“Elitech”), Wescor, Inc., a Utah corporation (“Wescor”), Elitech UK\nLimited, a private limited company organized under the laws of the United Kingdom (“Elitech UK” and, collectively with Elitech and Wescor,\nthe “Elitech Group”), Corgenix Medical Corporation, a Nevada corporation (“Corgenix”), and Corgenix U.K. Ltd., a private limited company\norganized under the laws of the United Kingdom (“Corgenix U.K.” and, collectively with Corgenix, the “Corgenix Group”).\nPRELIMINARY STATEMENTS\nA.\nThe Elitech Group and the Corgenix Group desire to enter into a commercial relationship with each other, either directly or\nthrough their respective Affiliates (as defined below), specifically: (1) that certain Common Stock Purchase Agreement by and among Corgenix,\nElitech and Wescor (the “SPA”); (2) that certain Master Distribution Agreement by and between Corgenix and Elitech UK (the “MDA”); and\n(3) that certain Joint Product Development Agreement by and between Corgenix and Elitech (the “JPDA” and, collectively with the SPA and the\nMDA, the “Transaction Agreements”).\nB.\nIn order for the Corgenix Group and the Elitech Group to enter into the proposed commercial relationship, it is necessary for\nthe parties to disclose certain valuable proprietary information to each other and ensure that such proprietary information will be treated as\nconfidential.\nC.\nEach of Corgenix, Corgenix U.K., Elitech, Wescor and Elitech UK, on behalf of itself and its respective Affiliates, agrees and\nacknowledges that any Confidential Information (as defined below) that it receives from a disclosing party must be kept confidential in\naccordance with the terms and conditions of this Agreement.\nAGREEMENT\nThe parties, intending to be legally bound, agree as follows:\n1.\nDefinitions. For purposes of this Agreement the following terms shall have the meanings set forth below:\na. The term “documents” means form or medium in which Confidential Information may be produced, including, but not be\nlimited to, writings, spreadsheets, presentations, web pages, emails, voicemails, drawings, graphs, charts, photographs, sound\nrecordings, optical or magnetic discs and data compilations in whatever form recorded or stored from which information can be\nobtained and/or translated, if necessary, into reasonably usable form, and any reproductions thereof.\n1\nb. The term “Confidential Information” means any and all information, tangible or intangible, in whatever form or medium\nprovided or obtained by any receiving party or such party’s representatives, directly or indirectly, including all documents and\ninformation generated by a disclosing party or its representatives that contains, reflects or is derived from such information,\nwhether orally, in writing, in documents, through or by observation or otherwise, in any way relating to the Transaction\nAgreements and the transactions contemplated in such Transaction Agreements, including, but not limited to, information\nabout existing or contemplated products, services, client lists, marketing techniques, pricing policies, financial information,\nresearch and development techniques and processes, manufacturing processes, sales processes, bidding and tender processes,\ncosts, profits, sales, markets and all other data and intellectual property related thereto.\nNotwithstanding the foregoing, information shall not be considered Confidential Information for purposes of this Agreement if:\n(a) a receiving party or its Affiliates already possesses the information without an obligation of confidentiality at the time of\ndisclosure as verified by independent written files or records; (b) the information is or becomes part of the public domain other\nthan as a result of unauthorized disclosure by a receiving party or its Affiliates of such information; (c) the information has\nbeen or is made available to a receiving party or its Affiliates by a third party that, to the receiving party’s or its Affiliates’ best\nknowledge, is not under an obligation of confidentiality to the disclosing party or its Affiliates; or (d) the information is\nindependently developed by a receiving party or its Affiliates prior to such information being disclosed by a disclosing party, as\nverified by independent written files or records.\nc. The term “Affiliate” means with respect to any person, any other person that, directly or indirectly, controls, is controlled by,\nor is under a common control with, such first person. The term “control” including the terms “controlled by” and “under a\ncommon control with” (as used in the preceding sentence) means the possession, directly or indirectly, of the power to direct or\ncause the direction of management and policies of the person, whether through the ownership of securities, by contract or\notherwise.\n2.\nConfidentiality. With respect to the Confidential Information, the Elitech Group and its Affiliates (on the one hand), and the\nCorgenix Group and its Affiliates (on the other hand), shall: (a) restrict disclosure of the Confidential Information solely to those of their\nrespective employees, Affiliates, advisors or representatives with a need to know; (b) advise their respective employees, Affiliates, advisors or\nrepresentatives who receive the Confidential Information of the obligation of confidentiality hereunder; (c) use, and advise their respective\nemployees, Affiliates, advisors or representatives to use, the same degree of care to protect the Confidential Information and to prevent\ndisclosure of the Confidential Information as is used with the party’s own confidential information, which shall be at least the degree of care that\na reasonably prudent person would take to protect and prevent disclosure of confidential\n2\ninformation; and (d) use the Confidential Information only for purposes of carrying out their respective obligations under the Transaction\nAgreements.\n3.\nCompliance with Laws. If any party to this Agreement or its Affiliates, as the case may be, becomes legally compelled\n(including pursuant to any rule or regulation promulgated by any securities regulation authority or any securities exchange) to make any\ndisclosure that is prohibited or otherwise constrained by this Agreement, then such party will give, or will cause its Affiliate to give, the other\nparties immediate written notice of such requirement so that they may seek a protective order or other appropriate relief, or waive compliance\nwith the nondisclosure provisions of this Agreement. Subject to the foregoing, the party that is legally compelled to disclose Confidential\nInformation may make only such disclosure that it is legally compelled or otherwise required to make to avoid standing liable for contempt or\nsuffering other material censure or penalty; provided, however, that such party and its Affiliates must use reasonable efforts to obtain reliable\nassurance that confidential treatment will be accorded any Confidential Information so disclosed.\n4.\nReturn of Documents. Upon the request of Corgenix, on the one hand, or Elitech, on the other hand, the other party shall\nreturn, or shall cause its Affiliates to return, as the case may be, all documents containing the requesting party’s Confidential Information,\nwithout retaining any copies or other reproductions, in whole or in part, except for one copy of such documents or records retained in confidence\nby the other party’s counsel solely for the purpose of any dispute or anticipated dispute arising out of the discussions or use of the Confidential\nInformation.\n5.\nBreach. If the Corgenix Group or its Affiliates, on the one hand, or the Elitech Group or its Affiliates, on the other hand,\nbreaches its obligations under this Agreement, the other party shall have available to it all its rights and remedies at law and in equity, including\nthe right to seek injunctive relief without being required to post a bond or similar form of security, it being acknowledged and agreed by all\nparties that a breach or threatened breach of the terms of this Agreement by one party or its Affiliates may cause irreparable injury to the other\nparty or its Affiliates and that money damages will not provide an adequate remedy to such other party or its Affiliates.\n6.\nAssignment. This Agreement may not be assigned by any party hereto without the prior written consent of the other parties.\nThis Agreement shall bind and accrue to the benefit of the parties hereto and their respective successors and permitted assigns. Notwithstanding\nthe foregoing, this Agreement may be assigned by Elitech or Corgenix to any of their respective Affiliates, provided such Affiliate existed as of\nthe date of this Agreement.\n7.\nNotices. Except as may be otherwise provided herein, all notices, requests, waivers and other communications made pursuant\nto this Agreement will be in writing and will be conclusively deemed to have been duly given (a) when hand delivered to the other parties;\n(b) when received if sent by facsimile or electronic mail to the number or the email address set forth below, provided that the sending party\nreceives a confirmation of delivery; (c) three (3) business days after deposit in the U.S. mail with first class or certified mail receipt requested\n3\npostage prepaid and addressed to the other parties as set forth below; or (d) forty-eight (48) hours after deposit with an internationally recognized\novernight delivery service, postage prepaid, addressed to the parties as set forth below with next-business-day delivery guaranteed, provided that\nthe sending party receives a confirmation of delivery from the delivery service provider. Each person making a communication hereunder by\nfacsimile or electronic mail will promptly confirm by telephone to the person to whom such communication was addressed each communication\nmade by it by facsimile or electronic mail, but the absence of such confirmation will not affect the validity of any such communication. A party\nmay change or supplement the addresses, facsimile numbers and email addresses provided in its signature block below, or designate additional\naddresses, facsimile numbers or email addresses, for purposes of this Section 7 by giving the other parties written notice of the new address,\nfacsimile numbers or email addresses in the manner set forth above.\n8.\nGoverning Law. This Agreement and any controversy arising out of or relating to this Agreement will be governed by and\nconstrued in accordance with the internal laws of the State of Colorado, without regard to conflict of law principles that would result in the\napplication of any law other than the law of the State of Colorado.\n9.\nVenue. Each of the parties consents and submits to the jurisdiction of the federal courts located in the District of Colorado in\nconnection with any suits or other actions arising between the parties under this Agreement, and consents and waives any objections to the venue\nof such action or proceeding in the federal courts located in the District of Colorado.\n10.\nSeverability. If any term, provision, covenant, or condition of this Agreement, or its application to any person or\ncircumstance, will be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement and such\nterm, provision, covenant, or condition as applied to other persons or circumstances will remain in full force and effect.\n11.\nEntire Agreement; Amendments. The Transaction Agreements and this Agreement constitute the full and entire\nunderstanding and agreement among the parties with respect to the subject hereof and thereof. The provisions of this Agreement may be\namended with the prior written consent of Corgenix and Elitech.\n12.\nAuthorization. Each of the undersigned representatives of the parties warrants and represents that he or she is duly authorized\nto execute and deliver this Agreement on behalf of the respective party for which he or she signs, and that the organization on whose behalf he or\nshe signs is currently in good standing in the jurisdiction where organized.\n13.\nHeadings. The headings of the sections of this Agreement are inserted for convenience only and will not be deemed to\nconstitute a part of this Agreement.\n14.\nCounterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but\nall of which together will constitute one and the same instrument.\n4\n15.\nDelays, Omission, and Waivers. No delay or omission to exercise any right, power or remedy accruing to any party as a\nresult of a breach or default of this Agreement will impair any such right, power or remedy of the non-defaulting party, nor will it be construed to\nbe a waiver of any such breach or default or an acquiescence therein, nor will any similar breach or default be deemed a waiver of any other\nbreach or default theretofore or thereafter occurring; nor will any waiver of any single breach or default be deemed a waiver of any other breach\nor default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any\nbreach or default under this Agreement or any waiver on the part of any party of any provisions or conditions of this Agreement must be in\nwriting and will be effective only to the extent specifically set forth in such writing.\n16.\nSurvival. This Agreement shall become effective on the date set forth above and shall continue for as long as any of the\nTransaction Agreements are in effect, and shall survive the termination of any of the Transaction Agreements for a term of twenty (20) years\ncommencing on the date that the last Transaction Agreement expires or is terminated.\n[Remainder of page intentionally left blank. Signature page follows.]\n5\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their duly authorized\nrepresentative as of the date and year set forth above.\nCORGENIX MEDICAL CORPORATION\nFINANCIÈRE ELITECH SAS\nBy: Douglass T. Simpson\nBy: Pierre Debiais\nTitle: President and Chief Executive Officer\nTitle: President\nAddress for notices:\nAddress for notices:\nAttention: President\n11575 Main Street, Suite 400\nBroomfield, Colorado 80020\nFacsimile: (303) 453-8896\nEmail: Dsimpson@corgenix.com\nAttention: Pierre Debiais\n12-12 bis, rue Jean Jaurès\n92800 Puteaux\nFrance\nFacsimile: +33 (1) 41 45 07 19\nEmail: p.debiais@elitechgroup.com\nCORGENIX U.K. LTD.\nWESCOR, INC.\nBy: Douglass T. Simpson\nBy: Janice Wallentine\nTitle: Director\nTitle: Chief Financial Officer\nAddress for notices:\nAddress for notices:\n40 Commerce Road\nLynch Wood\nPeterborough PE2 6LR\nUnited Kingdom\nFax +44 (0) 1733 238412\nEmail: Dsimpson@corgenix.com\nAttention: Michael Saunders\n370 West 1700 South\nLogan, Utah 84321\nFacsimile: (425) 752-4127\nEmail: m.saunders@elitechgroup.com\nSignature Page — Mutual Confidentiality Agreement\n1\nELITECH UK LIMITED\nBy:\nTim Watson\nTitle: Managing Director\nAddress for notices:\nAttention: Tim Watson\nUnit 6, River Park Industrial Estate\nBillet Lane\nBerkhamsted HP4 1HL\nEngland\nFacsimile: +44 144 287 6774\nEmail: tim@elitechuk.com\nSignature Page — Mutual Confidentiality Agreement\n2	EX-10.3 5a10-14025_1ex10d3.htm EX-10.3\nExhibit 10.3\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (this “Agreement”), dated as of July 16, 2010, is entered into by and among Financiére Elitech\nSAS, a société par actions simplifiée organized under the laws of France (“Elitech”), Wescor, Inc., a Utah corporation (“Wescor”), Elitech UK\nLimited, a private limited company organized under the laws of the United Kingdom (“Elitech UK” and, collectively with Elitech and Wescor,\nthe “Elitech Group”), Corgenix Medical Corporation, a Nevada corporation (“Corgenix”), and Corgenix U.K. Ltd., a private limited company\norganized under the laws of the United Kingdom (“Corgenix U.K.” and, collectively with Corgenix, the “Corgenix Group”).\nPRELIMINARY STATEMENTS\nA. The Elitech Group and the Corgenix Group desire to enter into a commercial relationship with each other, either directly or\nthrough their respective Affiliates (as defined below), specifically: (1) that certain Common Stock Purchase Agreement by and among Corgenix,\nElitech and Wescor (the “SPA”); (2) that certain Master Distribution Agreement by and between Corgenix and Elitech UK (the “MDA”); and\n(3) that certain Joint Product Development Agreement by and between Corgenix and Elitech (the “JPDA” and, collectively with the SPA and the\nMDA, the “Transaction Agreements”).\nB. In order for the Corgenix Group and the Elitech Group to enter into the proposed commercial relationship, it is necessary for\nthe parties to disclose certain valuable proprietary information to each other and ensure that such proprietary information will be treated as\nconfidential.\nC. Each of Corgenix, Corgenix U.K., Elitech, Wescor and Elitech UK, on behalf of itself and its respective Affiliates, agrees and\nacknowledges that any Confidential Information (as defined below) that it receives from a disclosing party must be kept confidential in\naccordance with the terms and conditions of this Agreement.\nAGREEMENT\nThe parties, intending to be legally bound, agree as follows:\n1. Definitions. For purposes of this Agreement the following terms shall have the meanings set forth below:\na. The term “documents” means form or medium in which Confidential Information may be produced, including, but not be\nlimited to, writings, spreadsheets, presentations, web pages, emails, voicemails, drawings, graphs, charts, photographs, sound\nrecordings, optical or magnetic discs and data compilations in whatever form recorded or stored from which information can be\nobtained and/or translated, if necessary, into reasonably usable form, and any reproductions thereof.\n1\n \nb. The term “Confidential Information” means any and all information, tangible or intangible, in whatever form or medium\nprovided or obtained by any receiving party or such party’s representatives, directly or indirectly, including all documents and\ninformation generated by a disclosing party or its representatives that contains, reflects or is derived from such information,\nwhether orally, in writing, in documents, through or by observation or otherwise, in any way relating to the Transaction\nAgreements and the transactions contemplated in such Transaction Agreements, including, but not limited to, information\nabout existing or contemplated products, services, client lists, marketing techniques, pricing policies, financial information,\nresearch and development techniques and processes, manufacturing processes, sales processes, bidding and tender processes,\ncosts, profits, sales, markets and all other data and intellectual property related thereto.\nNotwithstanding the foregoing, information shall not be considered Confidential Information for purposes of this Agreement if:\n(a) a receiving party or its Affiliates already possesses the information without an obligation of confidentiality at the time of\ndisclosure as verified by independent written files or records; (b) the information is or becomes part of the public domain other\nthan as a result of unauthorized disclosure by a receiving party or its Affiliates of such information; (c) the information has\nbeen or is made available to a receiving party or its Affiliates by a third party that, to the receiving party’s or its Affiliates’ best\nknowledge, is not under an obligation of confidentiality to the disclosing party or its Affiliates; or (d) the information is\nindependently developed by a receiving party or its Affiliates prior to such information being disclosed by a disclosing party, as\nverified by independent written files or records.\nc. The term “Affiliate” means with respect to any person, any other person that, directly or indirectly, controls, is controlled by,\nor is under a common control with, such first person. The term “control” including the terms “controlled by” and “under a\ncommon control with” (as used in the preceding sentence) means the possession, directly or indirectly, of the power to direct or\ncause the direction of management and policies of the person, whether through the ownership of securities, by contract or\notherwise.\n2. Confidentiality. With respect to the Confidential Information, the Elitech Group and its Affiliates (on the one hand), and the\nCorgenix Group and its Affiliates (on the other hand), shall: (a) restrict disclosure of the Confidential Information solely to those of their\nrespective employees, Affiliates, advisors or representatives with a need to know; (b) advise their respective employees, Affiliates, advisors or\nrepresentatives who receive the Confidential Information of the obligation of confidentiality hereunder; (c) use, and advise their respective\nemployees, Affiliates, advisors or representatives to use, the same degree of care to protect the Confidential Information and to prevent\ndisclosure of the Confidential Information as is used with the party’s own confidential information, which shall be at least the degree of care that\nareasonably prudent person would take to protect and prevent disclosure of confidential\n2\n \ninformation; and (d) use the Confidential Information only for purposes of carrying out their respective obligations under the Transaction\nAgreements.\n3. Compliance with Laws. If any party to this Agreement or its Affiliates, as the case may be, becomes legally compelled\n(including pursuant to any rule or regulation promulgated by any securities regulation authority or any securities exchange) to make any\ndisclosure that is prohibited or otherwise constrained by this Agreement, then such party will give, or will cause its Affiliate to give, the other\nparties immediate written notice of such requirement so that they may seek a protective order or other appropriate relief, or waive compliance\nwith the nondisclosure provisions of this Agreement. Subject to the foregoing, the party that is legally compelled to disclose Confidential\nInformation may make only such disclosure that it is legally compelled or otherwise required to make to avoid standing liable for contempt or\nsuffering other material censure or penalty; provided, however, that such party and its Affiliates must use reasonable efforts to obtain reliable\nassurance that confidential treatment will be accorded any Confidential Information so disclosed.\n4. Return of Documents. Upon the request of Corgenix, on the one hand, or Elitech, on the other hand, the other party shall\nreturn, or shall cause its Affiliates to return, as the case may be, all documents containing the requesting party’s Confidential Information,\nwithout retaining any copies or other reproductions, in whole or in part, except for one copy of such documents or records retained in confidence\nby the other party’s counsel solely for the purpose of any dispute or anticipated dispute arising out of the discussions or use of the Confidential\nInformation.\n5. Breach. If the Corgenix Group or its Affiliates, on the one hand, or the Elitech Group or its Affiliates, on the other hand,\nbreaches its obligations under this Agreement, the other party shall have available to it all its rights and remedies at law and in equity, including\nthe right to seek injunctive relief without being required to post a bond or similar form of security, it being acknowledged and agreed by all\nparties that a breach or threatened breach of the terms of this Agreement by one party or its Affiliates may cause irreparable injury to the other\nparty or its Affiliates and that money damages will not provide an adequate remedy to such other party or its Affiliates.\n6. Assignment. This Agreement may not be assigned by any party hereto without the prior written consent of the other parties.\nThis Agreement shall bind and accrue to the benefit of the parties hereto and their respective successors and permitted assigns. Notwithstanding\nthe foregoing, this Agreement may be assigned by Elitech or Corgenix to any of their respective Affiliates, provided such Affiliate existed as of\nthe date of this Agreement.\n7. Notices. Except as may be otherwise provided herein, all notices, requests, waivers and other communications made pursuant\nto this Agreement will be in writing and will be conclusively deemed to have been duly given (a) when hand delivered to the other parties;\n(b) when received if sent by facsimile or electronic mail to the number or the email address set forth below, provided that the sending party\nreceives a confirmation of delivery; (c) three (3) business days after deposit in the U.S. mail with first class or certified mail receipt requested\n3\n \npostage prepaid and addressed to the other parties as set forth below; or (d) forty-eight (48) hours after deposit with an internationally recognized\novernight delivery service, postage prepaid, addressed to the parties as set forth below with next-business-day delivery guaranteed, provided that\nthe sending party receives a confirmation of delivery from the delivery service provider. Each person making a communication hereunder by\nfacsimile or electronic mail will promptly confirm by telephone to the person to whom such communication was addressed each communication\nmade by it by facsimile or electronic mail, but the absence of such confirmation will not affect the validity of any such communication. A party\nmay change or supplement the addresses, facsimile numbers and email addresses provided in its signature block below, or designate additional\naddresses, facsimile numbers or email addresses, for purposes of this Section 7 by giving the other parties written notice of the new address,\nfacsimile numbers or email addresses in the manner set forth above.\n8. Governing Law. This Agreement and any controversy arising out of or relating to this Agreement will be governed by and\nconstrued in accordance with the internal laws of the State of Colorado, without regard to conflict of law principles that would result in the\napplication of any law other than the law of the State of Colorado.\n9. Venue. Each of the parties consents and submits to the jurisdiction of the federal courts located in the District of Colorado in\nconnection with any suits or other actions arising between the parties under this Agreement, and consents and waives any objections to the venue\nof such action or proceeding in the federal courts located in the District of Colorado.\n10. Severability. If any term, provision, covenant, or condition of this Agreement, or its application to any person or\ncircumstance, will be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement and such\nterm, provision, covenant, or condition as applied to other persons or circumstances will remain in full force and effect.\n11. Entire Agreement; Amendments. The Transaction Agreements and this Agreement constitute the full and entire understanding and agreement among the parties with respect to the subject hereof and thereof. The provisions of this Agreement may be amended with the prior written consent of Corgenix and Elitech. 12. Authorization. Each of the undersigned representatives of the parties warrants and represents that he or she is duly authorized to execute and deliver this Agreement on behalf of the respective party for which he or she signs, and that the organization on whose behalf he or she signs is currently in good standing in the jurisdiction where organized. 13. Headings. The headings of the sections of this Agreement are inserted for convenience only and will not be deemed to constitute a part of this Agreement.\n14. Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.  \n15. Delays, Omission, and Waivers. No delay or omission to exercise any right, power or remedy accruing to any party as a result of a breach or default of this Agreement will impair any such right, power or remedy of the non-defaulting party, nor will it be construed to be a waiver of any such breach or default or an acquiescence therein, nor will any similar breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring; nor will any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement or any waiver on the part of any party of any provisions or conditions of this Agreement must be in writing and will be effective only to the extent specifically set forth in such writing. 16. Survival. This Agreement shall become effective on the date set forth above and shall continue for as long as any of the Transaction Agreements are in effect, and shall survive the termination of any of the Transaction Agreements for a term of twenty (20) years commencing on the date that the last Transaction Agreement expires or is terminated. [Remainder of page intentionally left blank. Signature page follows.]  \nIN WITNESS WHEREQF, the parties hereto have caused this Agreement to be executed and delivered by their duly authorized representative as of the date and year set forth above. CORGENIX MEDICAL CORPORATION\nBy: Douglass T. Simpson\nTitle: President and Chief Executive Officer\nAddress for notices:\nAttention: President\n11575 Main Street, Suite 400\nBroomfield, Colorado 80020\nFacsimile: (303) 453-8896\nEmail: Dsimpson@corgenix.com\nCORGENIX U.K. LTD.\nBy: Douglass T. Simpson\nTitle: Director\nAddress for notices:\n40 Commerce Road\nLynch Wood\nPeterborough PE2 6LR\nUnited Kingdom\nFax +44 (0) 1733 238412\nEmail: Dsimpson@corgenix.com\nFINANCIERE ELITECH SAS\nBy: Pierre Debiais\nTitle: President\nAddress for notices:\nAttention: Pierre Debiais\n12-12 bis, rue Jean Jaures\n92800 Puteaux\nFrance\nFacsimile: +33 (1) 41 45 07 19\nEmail: p.debiais@elitechgroup.com\nWESCOR, INC.\nBy: Janice Wallentine\nTitle: Chief Financial Officer\nAddress for notices:\nAttention: Michael Saunders\n370 West 1700 South\nLogan, Utah 84321\nFacsimile: (425) 752-4127\nEmail: m.saunders@elitechgroup.com\nSignature Page — Mutual Confidentiality Agreement\n1\n \nELITECH UK LIMITED\nBy: Tim Watson\nTitle: ~ Managing Director\nAddress for notices:\nAttention: Tim Watson\nUnit 6, River Park Industrial Estate\nBillet Lane\nBerkhamsted HP4 1HL\nEngland\nFacsimile: +44 144 287 6774\nEmail: tim@elitechuk.com\nSignature Page — Mutual Confidentiality Agreement\n2\n	EX-10.3 a10-14025_1ex10d3.htm EX-10.3\nExhibit 10.3\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (this "Agreement"), dated as of July 16, 2010, is entered into by and among Financiere Elitech\nSAS, a societe par actions simplifiee organized under the laws of France ("Elitech"), Wescor, Inc., a Utah corporation ("Wescor"), Elitech UK\nLimited, a private limited company organized under the laws of the United Kingdom ("Elitech UK" and, collectively with Elitech and Wescor,\nthe "Elitech Group"), Corgenix Medical Corporation, a Nevada corporation ("Corgenix"), and Corgenix U.K. Ltd., a private limited company\norganized under the laws of the United Kingdom ("Corgenix U.K." and, collectively with Corgenix, the "Corgenix Group").\nPRELIMINARY STATEMENTS\nA.\nThe Elitech Group and the Corgenix Group desire to enter into a commercial relationship with each other, either directly or\nthrough their respective Affiliates (as defined below), specifically: (1) that certain Common Stock Purchase Agreement by and among Corgenix,\nElitech and Wescor (the "SPA"); (2) that certain Master Distribution Agreement by and between Corgenix and Elitech UK (the "MDA"); and\n(3) that certain Joint Product Development Agreement by and between Corgenix and Elitech (the "JPDA" and, collectively with the SPA and the\nMDA, the "Transaction Agreements").\nB.\nIn order for the Corgenix Group and the Elitech Group to enter into the proposed commercial relationship, it is necessary for\nthe parties to disclose certain valuable proprietary information to each other and ensure that such proprietary information will be treated as\nconfidential.\nC.\nEach of Corgenix, Corgenix U.K., Elitech, Wescor and Elitech UK, on behalf of itself and its respective Affiliates, agrees and\nacknowledges that any Confidential Information (as defined below) that it receives from a disclosing party must be kept confidential in\naccordance with the terms and conditions of this Agreement.\nAGREEMENT\nThe parties, intending to be legally bound, agree as follows:\n1.\nDefinitions. For purposes of this Agreement the following terms shall have the meanings set forth below:\na. The term "documents" means form or medium in which Confidential Information may be produced, including, but not be\nlimited to, writings, spreadsheets, presentations, web pages, emails, voicemails, drawings, graphs, charts, photographs, sound\nrecordings, optical or magnetic discs and data compilations in whatever form recorded or stored from which information can be\nobtained and/or translated, if necessary, into reasonably usable form, and any reproductions thereof.\n1\nb. The term "Confidential Information" means any and all information, tangible or intangible, in whatever form or medium\nprovided or obtained by any receiving party or such party's representatives, directly or indirectly, including all documents and\ninformation generated by a disclosing party or its representatives that contains, reflects or is derived from such information,\nwhether orally, in writing, in documents, through or by observation or otherwise, in any way relating to the Transaction\nAgreements and the transactions contemplated in such Transaction Agreements, including, but not limited to, information\nabout existing or contemplated products, services, client lists, marketing techniques, pricing policies, financial information,\nresearch and development techniques and processes, manufacturing processes, sales processes, bidding and tender processes,\ncosts, profits, sales, markets and all other data and intellectual property related thereto.\nNotwithstanding the foregoing, information shall not be considered Confidential Information for purposes of this Agreement if:\n(a) a receiving party or its Affiliates already possesses the information without an obligation of confidentiality at the time of\ndisclosure as verified by independent written files or records; (b) the information is or becomes part of the public domain other\nthan as a result of unauthorized disclosure by a receiving party or its Affiliates of such information; (c) the information has\nbeen or is made available to a receiving party or its Affiliates by a third party that, to the receiving party's or its Affiliates' best\nknowledge, is not under an obligation of confidentiality to the disclosing party or its Affiliates; or (d) the information is\nindependently developed by a receiving party or its Affiliates prior to such information being disclosed by a disclosing party,\nas\nverified by independent written files or records.\nC.\nThe term "Affiliate" means with respect to any person, any other person that, directly or indirectly, controls, is controlled by,\nor is under a common control with, such first person. The term "control" including the terms "controlled by" and "under a\ncommon control with" (as used in the preceding sentence) means the possession, directly or indirectly, of the power to direct or\ncause the direction of management and policies of the person, whether through the ownership of securities, by contract or\notherwise.\n2.\nConfidentiality. With respect to the Confidential Information, the Elitech Group and its Affiliates (on the one hand), and the\nCorgenix Group and its Affiliates (on the other hand), shall: (a) restrict disclosure of the Confidential Information solely to those of their\nrespective employees, Affiliates, advisors or representatives with a need to know; (b) advise their respective employees, Affiliates, advisors or\nrepresentatives who receive the Confidential Information of the obligation of confidentiality hereunder; (c) use, and advise their respective\nemployees, Affiliates, advisors or representatives to use, the same degree of care to protect the Confidential Information and to prevent\ndisclosure of the Confidential Information as is used with the party's own confidential information, which shall be at least the degree of care that\na reasonably prudent person would take to protect and prevent disclosure of confidential\n2\ninformation; and (d) use the Confidentia Information only for purposes of carrying out their respective obligations under the Transaction\nAgreements.\n3.\nCompliance with Laws. If any party to this Agreement or its Affiliates, as the case may be, becomes legally compelled\n(including pursuant to any rule or regulation promulgated by any securities regulation authority or any securities exchange) to make any\ndisclosure that is prohibited or otherwise constrained by this Agreement, then such party will give, or will cause its Affiliate to give, the other\nparties immediate written notice of such requirement so that they may seek a protective order or other appropriate relief, or waive compliance\nwith the nondisclosure provisions of this Agreement. Subject to the foregoing, the party that is legally compelled to disclose Confidential\nInformation may make only such disclosure that it is legally compelled or otherwise required to make to avoid standing liable for contempt\nor\nsuffering other material censure or penalty; provided, however, that such party and its Affiliates must use reasonable efforts to obtain reliable\nassurance that confidential treatment will be accorded any Confidential Information so disclosed.\n4.\nReturn of Documents. Upon the request of Corgenix, on the one hand, or Elitech, on the other hand, the other party shall\nreturn, or shall cause its Affiliates to return, as the case may be, all documents containing the requesting party's Confidential Information,\nwithout retaining any copies or other reproductions, in whole or in part, except for one copy of such documents or records retained in confidence\nby the other party's counsel solely for the purpose of any dispute or anticipated dispute arising out of the discussions or use of the Confidential\nInformation.\n5.\nBreach. If the Corgenix Group or its Affiliates, on the one hand, or the Elitech Group or its Affiliates, on the other hand,\nbreaches its obligations under this Agreement, the other party shall have available to it all its rights and remedies at law and in equity, including\nthe right to seek injunctive relief without being required to post a bond or similar form of security, it being acknowledged and agreed by all\nparties that a breach or threatened breach of the terms of this Agreement by one party or its Affiliates may cause irreparable injury to the other\nparty or its Affiliates and that money damages will not provide an adequate remedy to such other party or its Affiliates.\n6.\nAssignment. This Agreement may not be assigned by any party hereto without the prior written consent of the other parties.\nThis\nAgreement\nshall\nbind\nand\naccrue\nto\nthe\nbenefit\nof\nthe\nparties\nhereto\nand\ntheir\nrespective\nsuccessors\nand\npermitted\nassigns.\nNotwithstanding\nthe foregoing, this Agreement may be assigned by Elitech or Corgenix to any of their respective Affiliates, provided such Affiliate existed as of\nthe date of this Agreement.\n7.\nNotices. Except as may be otherwise provided herein, all notices, requests, waivers and other communications made pursuant\nto this Agreement will be in writing and will be conclusively deemed to have been duly given (a) when hand delivered to the other parties;\n(b) when received if sent by facsimile or electronic mail to the number or the email address set forth below, provided that the sending party\nreceives a confirmation of delivery; (c) three (3) business days after deposit in the U.S. mail with first class or certified mail receipt requested\n3\npostage prepaid and addressed to the other parties as set forth below; or (d) forty-eight (48) hours after deposit with an internationally recognized\novernight delivery service, postage prepaid, addressed to the parties as set forth below with next-business-day delivery guaranteed, provided that\nthe sending party receives a confirmation of delivery from the delivery service provider. Each person making a communication hereunder by\nfacsimile or electronic mail will promptly confirm by telephone to the person to whom such communication was addressed each communication\nmade by it by facsimile or electronic mail, but the absence of such confirmation will not affect the validity of any such communication. A\nparty\nmay change or supplement the addresses, facsimile numbers and email addresses provided in its signature block below, or designate additional\naddresses, facsimile numbers or email addresses, for purposes of this Section 7 by giving the other parties written notice of the new address,\nfacsimile numbers or email addresses in the manner set forth above.\n8.\nGoverning Law. This Agreement and any controversy arising out of or relating to this Agreement will be governed by and\nconstrued in accordance with the internal laws of the State of Colorado, without regard to conflict of law principles that would result in the\napplication of any law other than the law of the State of Colorado.\n9.\nVenue. Each of the parties consents and submits to the jurisdiction of the federal courts located in the District of Colorado in\nconnection with any suits or other actions arising between the parties under this Agreement, and consents and waives any objections to the venue\nof such action or proceeding in the federal courts located in the District of Colorado.\n10.\nSeverability. If any term, provision, covenant, or condition of this Agreement, or its application to any person or\ncircumstance, will be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement and such\nterm, provision, covenant, or condition as applied to other persons or circumstances will remain in full force and effect.\n11.\nEntire Agreement; Amendments. The Transaction Agreements and this Agreement constitute the full and entire\nunderstanding and agreement among the parties with respect to the subject hereof and thereof. The provisions of this Agreement may be\namended with the prior written consent of Corgenix and Elitech.\n12.\nAuthorization. Each of the undersigned representatives of the parties warrants and represents that he or she is duly authorized\nto execute and deliver this Agreement on behalf of the respective party for which he or she signs, and that the organization on whose behalf he or\nshe signs is currently in good standing in the jurisdiction where organized.\n13.\nHeadings. The headings of the sections of this Agreement are inserted for convenience only and will not be deemed to\nconstitute a part of this Agreement.\n14.\nCounterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but\nall of which together will constitute one and the same instrument.\n4\n15. Delays, Omission, and Waivers. No delay or omission to exercise any right, power or remedy accruing to any party as a\nresult of a breach or default of this Agreement will impair any such right, power or remedy of the non-defaulting party, nor will it be construed to\nbe a waiver of any such breach or default or an acquiescence therein, nor will any similar breach or default be deemed a waiver of any other\nbreach or default theretofore or thereafter occurring; nor will any waiver of any single breach or default be deemed a waiver of any other breach\nor default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any\nbreach or default under this Agreement or any waiver on the part of any party of any provisions or conditions of this Agreement must be in\nwriting and will be effective only to the extent specifically set forth in such writing.\n16.\nSurvival. This Agreement shall become effective on the date set forth above and shall continue for as long as any of the\nTransaction Agreements are in effect, and shall survive the termination of any of the Transaction Agreements for a term of twenty (20) years\ncommencing on the date that the last Transaction Agreement expires or is terminated.\n[Remainder of page intentionally left blank. Signature page follows.]\n5\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their duly authorized\nrepresentative as of the date and year set forth above.\nCORGENIX MEDICAL CORPORATION\nFINANCIERE ELITECH SAS\nBy:\nDouglass T. Simpson\nBy:\nPierre Debiais\nTitle: President and Chief Executive Officer\nTitle: President\nAddress for notices:\nAddress for notices:\nAttention: President\nAttention: Pierre Debiais\n11575 Main Street, Suite 400\n12-12 bis, rue Jean Jaures\nBroomfield, Colorado 80020\n92800 Puteaux\nFacsimile: (303) 453-8896\nFrance\nEmail: Dsimpson@corgenix.com\nFacsimile: +33 (1) 41 45 07 19\nEmail: p.debiais@elitechgroup.com\nCORGENIX U.K. LTD.\nWESCOR, INC.\nBy:\nDouglass T. Simpson\nBy:\nJanice Wallentine\nTitle: Director\nTitle: Chief Financial Officer\nAddress for notices:\nAddress for notices:\n40 Commerce Road\nAttention: Michael Saunders\nLynch Wood\n370 West 1700 South\nPeterborough PE2 6LR\nLogan, Utah 84321\nUnited Kingdom\nFacsimile: (425) 752-4127\nFax +44 (0) 1733 238412\nEmail: m.saunders@elitechgroup.com\nEmail: Dsimpson@corgenix.com\nSignature Page - Mutual Confidentiality Agreement\n1\nELITECH UK LIMITED\nBy:\nTim Watson\nTitle:\nManaging Director\nAddress for notices:\nAttention: Tim Watson\nUnit 6, River Park Industrial Estate\nBillet Lane\nBerkhamsted HP4 1HL\nEngland\nFacsimile: +44 144 287 6774\nEmail: tim@elitechuk.com\nSignature Page - Mutual Confidentiality Agreement\n2	EX-10.3 5 a10-14025_1ex10d3.htm EX-10.3\nExhibit 10.3\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (this “ Agreement”), dated as of July 16, 2010, is entered into by and among Financière Elitech\nSAS, a société par actions simplifiée organized under the laws of France (“Elitech”), Wescor, Inc., a Utah corporation (“Wescor”), Elitech UK\nLimited, a private limited company organized under the laws of the United Kingdom (“Elitech UK” and, collectively with Elitech and Wescor,\nthe “Elitech Group”), Corgenix Medical Corporation, a Nevada corporation (“Corgenix”), and Corgenix U.K. Ltd., a private limited company\norganized under the laws of the United Kingdom (“Corgenix U.K.” and, collectively with Corgenix, the “Corgenix Group”).\nPRELIMINARY STATEMENTS\nA.\nThe Elitech Group and the Corgenix Group desire to enter into a commercial relationship with each other, either directly or\nthrough their respective Affiliates (as defined below), specifically: (1) that certain Common Stock Purchase Agreement by and among Corgenix,\nElitech and Wescor (the “SPA”); (2) that certain Master Distribution Agreement by and between Corgenix and Elitech UK (the “MDA”); and\n(3) that certain Joint Product Development Agreement by and between Corgenix and Elitech (the “JPDA” and, collectively with the SPA and the\nMDA, the “Transaction Agreements”).\nB.\nIn order for the Corgenix Group and the Elitech Group to enter into the proposed commercial relationship, it is necessary for\nthe parties to disclose certain valuable proprietary information to each other and ensure that such proprietary information will be treated as\nconfidential.\nC.\nEach of Corgenix, Corgenix U.K., Elitech, Wescor and Elitech UK, on behalf of itself and its respective Affiliates, agrees and\nacknowledges that any Confidential Information (as defined below) that it receives from a disclosing party must be kept confidential in\naccordance with the terms and conditions of this Agreement.\nAGREEMENT\nThe parties, intending to be legally bound, agree as follows:\n1.\nDefinitions. For purposes of this Agreement the following terms shall have the meanings set forth below:\na. The term “documents” means form or medium in which Confidential Information may be produced, including, but not be\nlimited to, writings, spreadsheets, presentations, web pages, emails, voicemails, drawings, graphs, charts, photographs, sound\nrecordings, optical or magnetic discs and data compilations in whatever form recorded or stored from which information can be\nobtained and/or translated, if necessary, into reasonably usable form, and any reproductions thereof.\n1\nb. The term “Confidential Information” means any and all information, tangible or intangible, in whatever form or medium\nprovided or obtained by any receiving party or such party’s representatives, directly or indirectly, including all documents and\ninformation generated by a disclosing party or its representatives that contains, reflects or is derived from such information,\nwhether orally, in writing, in documents, through or by observation or otherwise, in any way relating to the Transaction\nAgreements and the transactions contemplated in such Transaction Agreements, including, but not limited to, information\nabout existing or contemplated products, services, client lists, marketing techniques, pricing policies, financial information,\nresearch and development techniques and processes, manufacturing processes, sales processes, bidding and tender processes,\ncosts, profits, sales, markets and all other data and intellectual property related thereto.\nNotwithstanding the foregoing, information shall not be considered Confidential Information for purposes of this Agreement if:\n(a) a receiving party or its Affiliates already possesses the information without an obligation of confidentiality at the time of\ndisclosure as verified by independent written files or records; (b) the information is or becomes part of the public domain other\nthan as a result of unauthorized disclosure by a receiving party or its Affiliates of such information; (c) the information has\nbeen or is made available to a receiving party or its Affiliates by a third party that, to the receiving party’s or its Affiliates’ best\nknowledge, is not under an obligation of confidentiality to the disclosing party or its Affiliates; or (d) the information is\nindependently developed by a receiving party or its Affiliates prior to such information being disclosed by a disclosing party, as\nverified by independent written files or records.\nc. The term “Affiliate” means with respect to any person, any other person that, directly or indirectly, controls, is controlled by,\nor is under a common control with, such first person. The term “control” including the terms “controlled by” and “under a\ncommon control with” (as used in the preceding sentence) means the possession, directly or indirectly, of the power to direct or\ncause the direction of management and policies of the person, whether through the ownership of securities, by contract or\notherwise.\n2.\nConfidentiality. With respect to the Confidential Information, the Elitech Group and its Affiliates (on the one hand), and the\nCorgenix Group and its Affiliates (on the other hand), shall: (a) restrict disclosure of the Confidential Information solely to those of their\nrespective employees, Affiliates, advisors or representatives with a need to know; (b) advise their respective employees, Affiliates, advisors or\nrepresentatives who receive the Confidential Information of the obligation of confidentiality hereunder; (c) use, and advise their respective\nemployees, Affiliates, advisors or representatives to use, the same degree of care to protect the Confidential Information and to prevent\ndisclosure of the Confidential Information as is used with the party’s own confidential information, which shall be at least the degree of care that\na reasonably prudent person would take to protect and prevent disclosure of confidential\n2\ninformation; and (d) use the Confidential Information only for purposes of carrying out their respective obligations under the Transaction\nAgreements.\n3.\nCompliance with Laws. If any party to this Agreement or its Affiliates, as the case may be, becomes legally compelled\n(including pursuant to any rule or regulation promulgated by any securities regulation authority or any securities exchange) to make any\ndisclosure that is prohibited or otherwise constrained by this Agreement, then such party will give, or will cause its Affiliate to give, the other\nparties immediate written notice of such requirement so that they may seek a protective order or other appropriate relief, or waive compliance\nwith the nondisclosure provisions of this Agreement. Subject to the foregoing, the party that is legally compelled to disclose Confidential\nInformation may make only such disclosure that it is legally compelled or otherwise required to make to avoid standing liable for contempt or\nsuffering other material censure or penalty; provided, however, that such party and its Affiliates must use reasonable efforts to obtain reliable\nassurance that confidential treatment will be accorded any Confidential Information so disclosed.\n4.\nReturn of Documents. Upon the request of Corgenix, on the one hand, or Elitech, on the other hand, the other party shall\nreturn, or shall cause its Affiliates to return, as the case may be, all documents containing the requesting party’s Confidential Information,\nwithout retaining any copies or other reproductions, in whole or in part, except for one copy of such documents or records retained in confidence\nby the other party’s counsel solely for the purpose of any dispute or anticipated dispute arising out of the discussions or use of the Confidential\nInformation.\n5.\nBreach. If the Corgenix Group or its Affiliates, on the one hand, or the Elitech Group or its Affiliates, on the other hand,\nbreaches its obligations under this Agreement, the other party shall have available to it all its rights and remedies at law and in equity, including\nthe right to seek injunctive relief without being required to post a bond or similar form of security, it being acknowledged and agreed by all\nparties that a breach or threatened breach of the terms of this Agreement by one party or its Affiliates may cause irreparable injury to the other\nparty or its Affiliates and that money damages will not provide an adequate remedy to such other party or its Affiliates.\n6.\nAssignment. This Agreement may not be assigned by any party hereto without the prior written consent of the other parties.\nThis Agreement shall bind and accrue to the benefit of the parties hereto and their respective successors and permitted assigns. Notwithstanding\nthe foregoing, this Agreement may be assigned by Elitech or Corgenix to any of their respective Affiliates, provided such Affiliate existed as of\nthe date of this Agreement.\n7.\nNotices. Except as may be otherwise provided herein, all notices, requests, waivers and other communications made pursuant\nto this Agreement will be in writing and will be conclusively deemed to have been duly given (a) when hand delivered to the other parties;\n(b) when received if sent by facsimile or electronic mail to the number or the email address set forth below, provided that the sending party\nreceives a confirmation of delivery; (c) three (3) business days after deposit in the U.S. mail with first class or certified mail receipt requested\n3\npostage prepaid and addressed to the other parties as set forth below; or (d) forty-eight (48) hours after deposit with an internationally recognized\novernight delivery service, postage prepaid, addressed to the parties as set forth below with next-business-day delivery guaranteed, provided that\nthe sending party receives a confirmation of delivery from the delivery service provider. Each person making a communication hereunder by\nfacsimile or electronic mail will promptly confirm by telephone to the person to whom such communication was addressed each communication\nmade by it by facsimile or electronic mail, but the absence of such confirmation will not affect the validity of any such communication. A party\nmay change or supplement the addresses, facsimile numbers and email addresses provided in its signature block below, or designate additional\naddresses, facsimile numbers or email addresses, for purposes of this Section 7 by giving the other parties written notice of the new address,\nfacsimile numbers or email addresses in the manner set forth above.\n8.\nGoverning Law. This Agreement and any controversy arising out of or relating to this Agreement will be governed by and\nconstrued in accordance with the internal laws of the State of Colorado, without regard to conflict of law principles that would result in the\napplication of any law other than the law of the State of Colorado.\n9.\nVenue. Each of the parties consents and submits to the jurisdiction of the federal courts located in the District of Colorado in\nconnection with any suits or other actions arising between the parties under this Agreement, and consents and waives any objections to the venue\nof such action or proceeding in the federal courts located in the District of Colorado.\n10.\nSeverability. If any term, provision, covenant, or condition of this Agreement, or its application to any person or\ncircumstance, will be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement and such\nterm, provision, covenant, or condition as applied to other persons or circumstances will remain in full force and effect.\n11.\nEntire Agreement; Amendments. The Transaction Agreements and this Agreement constitute the full and entire\nunderstanding and agreement among the parties with respect to the subject hereof and thereof. The provisions of this Agreement may be\namended with the prior written consent of Corgenix and Elitech.\n12.\nAuthorization. Each of the undersigned representatives of the parties warrants and represents that he or she is duly authorized\nto execute and deliver this Agreement on behalf of the respective party for which he or she signs, and that the organization on whose behalf he or\nshe signs is currently in good standing in the jurisdiction where organized.\n13.\nHeadings. The headings of the sections of this Agreement are inserted for convenience only and will not be deemed to\nconstitute a part of this Agreement.\n14.\nCounterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but\nall of which together will constitute one and the same instrument.\n4\n15.\nDelays, Omission, and Waivers. No delay or omission to exercise any right, power or remedy accruing to any party as a\nresult of a breach or default of this Agreement will impair any such right, power or remedy of the non-defaulting party, nor will it be construed to\nbe a waiver of any such breach or default or an acquiescence therein, nor will any similar breach or default be deemed a waiver of any other\nbreach or default theretofore or thereafter occurring; nor will any waiver of any single breach or default be deemed a waiver of any other breach\nor default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any\nbreach or default under this Agreement or any waiver on the part of any party of any provisions or conditions of this Agreement must be in\nwriting and will be effective only to the extent specifically set forth in such writing.\n16.\nSurvival. This Agreement shall become effective on the date set forth above and shall continue for as long as any of the\nTransaction Agreements are in effect, and shall survive the termination of any of the Transaction Agreements for a term of twenty (20) years\ncommencing on the date that the last Transaction Agreement expires or is terminated.\n[Remainder of page intentionally left blank. Signature page follows.]\n5\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their duly authorized\nrepresentative as of the date and year set forth above.\nCORGENIX MEDICAL CORPORATION\nFINANCIÈRE ELITECH SAS\nBy: Douglass T. Simpson\nBy: Pierre Debiais\nTitle: President and Chief Executive Officer\nTitle: President\nAddress for notices:\nAddress for notices:\nAttention: President\n11575 Main Street, Suite 400\nBroomfield, Colorado 80020\nFacsimile: (303) 453-8896\nEmail: Dsimpson@corgenix.com\nAttention: Pierre Debiais\n12-12 bis, rue Jean Jaurès\n92800 Puteaux\nFrance\nFacsimile: +33 (1) 41 45 07 19\nEmail: p.debiais@elitechgroup.com\nCORGENIX U.K. LTD.\nWESCOR, INC.\nBy: Douglass T. Simpson\nBy: Janice Wallentine\nTitle: Director\nTitle: Chief Financial Officer\nAddress for notices:\nAddress for notices:\n40 Commerce Road\nLynch Wood\nPeterborough PE2 6LR\nUnited Kingdom\nFax +44 (0) 1733 238412\nEmail: Dsimpson@corgenix.com\nAttention: Michael Saunders\n370 West 1700 South\nLogan, Utah 84321\nFacsimile: (425) 752-4127\nEmail: m.saunders@elitechgroup.com\nSignature Page — Mutual Confidentiality Agreement\n1\nELITECH UK LIMITED\nBy:\nTim Watson\nTitle: Managing Director\nAddress for notices:\nAttention: Tim Watson\nUnit 6, River Park Industrial Estate\nBillet Lane\nBerkhamsted HP4 1HL\nEngland\nFacsimile: +44 144 287 6774\nEmail: tim@elitechuk.com\nSignature Page — Mutual Confidentiality Agreement\n2
+0d4e4c8a5a981d0d687abb7f43267c84.pdf	effective_date jurisdiction party term	EX-10 .3 4 a8k91114ex10d3.htm EX-10 .3\nEXHIBIT 10.3\nCONFIDENTIALITY AND INVENTIONS AGREEMENT\nThis Confidentiality and Inventions Agreement (this "Agreement"), by and between Array BioPharma Inc., a Delaware corporation\n(the "Company"), and Victor Sandor, M.D, an individual ("Employee"), is executed to be effective as of the "Effective Date" set forth\nin Section 3(j) below.\nAs a condition to, and in consideration of Employee's employment or continued employment (as the case may be) with the\nCompany, and in consideration of the mutual covenants and agreements contained herein and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\n1. Protection of Trade Secrets and Confidential Information.\n(a) Definition of "Confidential Information." As used in this Agreement, the term "Confidential Information" shall include\nall information concerning or arising from the Company's business, including, without limitation, trade secrets used or developed by\nthe Company in connection with its business; information concerning the manner and details of the Company's operation,\norganization and management; financial information and/or documents and nonpublic policies, procedures and other printed or\nwritten material generated or used in connection with the Company's business; the Company's business plans and strategies; the\nidentities of the Company's customers and the specific individual customer representatives with whom the Company works and\ndetails of the Company's relationship with such customers and customer representatives; the identities of other persons or\ncompanies utilized in the Company's business and details of the Company's relationship with such persons or companies; the\nnature of fees and charges made to the Company's customers; nonpublic forms, contracts and other documents used in the\nCompany's business; the nature and content of computer software used in the Company's business, whether proprietary to the\nCompany or used by the Company under license from a third party; and/or other information concerning know-how, research,\ninventions, copyrights, trademarks, patent applications, patents, processes, designs, technical specifications, methods, concepts,\nprospects, customers, employees, contractors, earnings, products, services, formulas, compositions, machines, equipment,\nsystems, and/or prospective and executed contracts and other business arrangements. As used in this Agreement, "Company"\nincludes any direct or indirect subsidiary or affiliate of the Company.\nConfidential Information under this agreement shall not include information which (i) Employee can demonstrate\nwas in Employee's possession prior to employment with the Company (unless such information is assigned to, or otherwise\nbecomes the property of, the Company or (ii) is now in the public domain, or hereafter enters the public domain through no violation\nby Employee of the obligations hereunder or any other obligation of confidentiality, or (iii) is lawfully obtained from a source (other\nthan the Company, its affiliates or representatives) in accordance with the terms and conditions, if any, imposed upon Employee by\nsuch source respecting the use and disclosure thereof; provided, however, that such source was not at the time bound by a\nconfidentiality agreement with the Company or any of its affiliates or representatives. Confidential Information shall also not include\ngeneric information, knowledge or skill which Employee reasonably would have learned or acquired in the course of similar\nemployment or work elsewhere in the trade.\n(b) Restrictions on Employee's Use of Confidential Information. Except in connection with and in furtherance of\nEmployee's official duties with and on behalf of the Company, Employee shall not at any time or in any manner use, copy, disclose,\ndivulge, transmit, convey, transfer or otherwise communicate any Confidential Information to any person or entity, either directly or\nindirectly, without the Company's prior written consent.\n(c) Acknowledgment. Employee acknowledges that during the term of this Agreement, Employee will have access to\nConfidential Information, all of which shall be made accessible to Employee only in strict confidence; that unauthorized disclosure of\nConfidential Information will damage the Company's business; that Confidential Information would be susceptible to immediate\ncompetitive application by a competitor of the Company; that the Company's business is substantially dependent on access to and\nthe continuing secrecy of Confidential Information; that Confidential Information is unique and proprietary to the Company and\nknown only to Employee, the Company and certain key employees and contractors of the Company; and that title, ownership,\npossession and control of Confidential Information shall at all times remain vested in the Company. Consequently, Employee\nacknowledges that the restrictions contained in this Section 1 are reasonable and necessary for the protection of the Company's\nbusiness.\n(d) Documents and Other Records Containing Confidential Information. All documents or other records containing or\nalluding to Confidential Information that are prepared by or provided to Employee during the term of this Agreement or that come\ninto Employee's possession in connection with Employee's performance of services for the Company are and shall remain the\nCompany's property. Employee shall not copy or use any such documents or Confidential Information for any purpose not relating\ndirectly to Employee's performance of services for the Company, nor shall Employee market or in any way provide or make\navailable to any party other than the Company any of the Confidential Information, except pursuant to prior written authorization\nfrom the Company. Upon the termination of this Agreement for any reason and regardless of the circumstances of such termination\nor the existence of any dispute between Employee and the Company following or concerning the termination of Employee's\nemployment, or upon the request of the Company, its successors or assigns, Employee shall immediately deliver to the Company or\nits designee (and will not keep in Employee's possession or deliver to anyone else, including any copies) any and all devices,\nrecords, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment,\nother documents or property, or reproductions of any aforementioned items belonging to the Company, its successors or assigns.\nNotwithstanding any other provision of this Agreement, this Agreement shall not bar Employee from complying with any subpoena\nor court order, provided that prior to doing so Employee shall give the Company written notice, at the Company's principal place of\nbusiness, of Employee's receipt of any such subpoena or court order as far as possible in advance of the appearance time set forth\nin the subpoena or court order.\n(e) Third-Parties' Confidential Information. Employee acknowledges that the Company has received and in the future\nwill receive from third parties confidential or proprietary information, and that the Company must maintain the confidentiality of such\ninformation and use it only for proper purposes. Employee shall not use or disclose any such information except as permitted by the\nCompany or the third party to whom the information belongs.\n(f) Other Agreements. Employee represents to the Company that, except as identified on Schedule A hereto, Employee\nis not bound by any agreement or any other previous or existing business relationship which conflicts with or prevents the full\nperformance of any of Employee's obligations to the Company. During Employee's employment with the Company, Employee\nagrees not to improperly use or disclose any proprietary information or trade secrets of any former or concurrent employer, or any\nother person or entity with whom Employee has an agreement or to whom Employee owes a duty to keep such information in\nconfidence. Any such persons or entities with whom Employee has such agreements or to whom Employee owes such a duty are\nidentified on Schedule A.\n2. Inventions.\n(a) Disclosure. Employee agrees to disclose promptly to the Company the full details of any and all ideas, processes,\ntrademarks and service marks, technical data, know-how, works, inventions, discoveries, marketing and business ideas, and\nimprovements or enhancements to any of the foregoing, including all information necessary to enable the Company to reproduce\nany of the foregoing, (collectively, "Inventions"), that Employee conceives, develops or creates alone or with the aid of others during\nthe term of Employee's employment with the Company (whether or not conceived, developed or created during regular working\nhours) that: (i) relate to the Company's business; (ii) result from any work performed by Employee for the Company; (iii) involve the\nuse of the Company's equipment, supplies, facilities, or trade secret information; (iv) result from or are suggested by any work done\nat the Company's request or by any Company employee other than Employee, or relate to any problems specifically assigned to\nEmployee; or (v) result from Employee's access to any of the Company's memoranda, notes, records, drawings, sketches, models,\nmaps, customer lists, research results, data, formula, specifications, inventions, processes, equipment, or the like.\nInventions under this Agreement shall not include any invention that i) was developed on Employee's own time; ii)\nwas developed without the use of the Company's equipment, supplies, facilities, or Confidential Information; and iii) does not relate\nto the business of the Company.\n(b) Assignment. Employee shall assign and hereby assigns to the Company, without further consideration, Employee's\nentire right to any Invention which shall be the sole and exclusive property of the Company whether or not patentable. Employee\nacknowledges also that all Inventions which are made by Employee (solely or jointly with others), within the scope of Employee's\nemployment, and which are protectable by copyright, are "works made for hire," as that term is defined in the United States\nCopyright Act (17 U.S . C. § 101). To the extent that any such Inventions, by operation of law, cannot be "works made for hire,"\nEmployee hereby assigns to the Company all right, title, and interest in and to such Inventions and to any related copyrights.\n3. General Provisions.\n(a) Additional Instruments. Employee shall execute, acknowledge and deliver any additional instruments or documents\nthat the Company deems necessary to carry out the intentions of this Agreement, including such instruments as may be required by\nthe laws of any jurisdiction, now in effect or hereinafter enacted, that may affect the Company's property rights relating to the rights\nand obligations created by this Agreement. Employee further agrees, as to all the Inventions, to assist the Company in every way\n(at the Company's expense) to obtain and, from time to time, enforce patents on the Inventions in any and all countries. To that end,\nby way of illustration but not limitation, Employee will testify in any suit or other proceeding involving any of the Inventions, execute\nall documents which the Company reasonably determines to be necessary or convenient for use in applying for and obtaining\npatents thereon and enforcing same, and execute all necessary assignments thereof to the Company or persons designated by it.\nEmployee's obligation to assist the Company in obtaining and enforcing patents for the Inventions in any and all countries shall\ncontinue beyond the termination of Employee's employment, but the Company shall compensate Employee at a reasonable rate\nafter such termination for time actually spent by Employee at the Company's request on such assistance. In the event the Company\nis unable, after reasonable effort, to secure Employee's signature on any document or documents needed to apply for or prosecute\nany patent, copyright or other right or protection relating to any Invention, whether because of Employee's physical or mental\nincapacity or for any other reason whatsoever, Employee hereby irrevocably designates and appoints the Company and its duly\nauthorized officers and agents as Employee's agent and attorney-in-fact, to act for and in Employee's behalf and stead to execute\nand file any such application or applications and to do all other lawfully permitted acts to further the prosecution and issuance of\npatents, copyrights or similar protections thereon with the same legal force and effect as if executed by Employee.\n(b) Remedies. Employee acknowledges that upon a breach of this Agreement the Company will suffer immediate and\nirreparable harm and damage for which money alone cannot fully compensate the Company. Employee therefore agrees that upon\nsuch breach or threat of imminent breach of this Agreement, the Company shall be entitled to a temporary restraining order,\npreliminary injunction, permanent injunction or other injunctive relief, without posting any bond or other security, barring Employee\nfrom violating any provision of this Agreement. At the Company's option, any action to enforce this Agreement shall be brought in or\ntransferred to the state or federal court situated in Boulder, Colorado. Nothing in this Agreement shall be construed as an election of\nany remedy, or as a waiver of any right available to the Company under this Agreement or the law, including the right to seek\ndamages from Employee for a breach of any provision of this Agreement.\n(c) Non-Solicitation of Employees. Employee agrees that during the term of employment and for a period of two years\nafter the termination or cessation of employment for any reason, Employee shall not directly or indirectly recruit, solicit or hire any\nemployee of the Company, or induce or attempt to induce any employee of the Company to discontinue his or her employment\nrelationship with the Company.\n(d) Not an Employment Contract. Employee agrees and understands that nothing in this Agreement shall confer any\nright with respect to continuation of employment by the Company, nor shall it interfere in any way with Employee's right or the\nCompany's right to terminate Employee's employment at any time, with or without cause.\n(e) Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by and construed according to\nthe laws of the State of Colorado. Employee hereby expressly consents to the personal jurisdiction of the state and federal courts\nlocated in Colorado for any lawsuit filed there against Employee by the Company arising from or relating to this Agreement.\n(f) Entire Agreement. This Agreement sets forth the final, complete and exclusive agreement and understanding\nbetween the Company and Employee relating to the subject matter hereof. No modification of or amendment to this Agreement, nor\nany waiver of any rights under this Agreement, will be effective unless in writing signed by the party to be charged. No subsequent\nchange or changes in Employee's duties, salary or compensation will affect the validity or scope of this Agreement.\n(g) Severability. If one or more of the provisions in this Agreement are deemed unenforceable by law, then the remaining\nprovisions will continue in full force and effect.\n(h) Survival. The provisions of this Agreement shall survive the termination of Employee's employment for any reason\nand the assignment of this Agreement by the Company to any successor in interest or other assignee.\n(i) Waiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding or succeeding\nbreach. No waiver by the Company of any right under this Agreement shall be construed as a waiver of any other right.\n(j) Effective Date. This Agreement is effective as of the first day of Employee's employment with the Company. Employee\nunderstands that this Agreement affects Employee's rights to works and inventions Employee develops during Employee's\nemployment with the Company and restricts Employee's ability to disclose or use Confidential Information.\n[signature page follows]\nIN WITNESS WHEREOF, the parties have executed this agreement to be effective as of the Effective Date.\nCOMPANY:\nARRAY BIOPHARMA, INC., a Delaware corporation\nBy: /s/ Ron Squarer\nName: Ron Squarer\nTitle: Chief Executive Officer\nI HAVE READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND I UNDERSTAND, AND AGREE TO, EACH OF\nSUCH PROVISIONS. I UNDERSTAND THAT THIS AGREEMENT MAY AFFECT MY RIGHT TO ACCEPT EMPLOYMENT WITH\nOTHER COMPANIES SUBSEQUENT TO MY EMPLOYMENT WITH THE COMPANY.\nEMPLOYEE:\nBy: /s/ Victor Sandor\nVictor Sandor, M.D	EX-10.3 4 a8k91114ex10d3.htm EX-10.3\nEXHIBIT 10.3\nCONFIDENTIALITY AND INVENTIONS AGREEMENT\nThis Confidentiality and Inventions Agreement (this "Agreement"), by and between Array BioPharma Inc., a Delaware corporation\n(the "Company"), and Victor Sandor, M.D, an individual ("Employee"), is executed to be effective as of the "Effective Date" set forth\nin Section 3(j) below.\nAs a condition to, and in consideration of Employee's employment or continued employment (as the case may be) with the\nCompany, and in consideration of the mutual covenants and agreements contained herein and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\n1. Protection of Trade Secrets and Confidential Information.\n(a) Definition of "Confidential Information." As used in this Agreement, the term "Confidential Information" shall include\nall information concerning or arising from the Company's business, including, without limitation, trade secrets used or developed by\nthe Company in connection with its business; information concerning the manner and details of the Company's operation,\norganization and management; financial information and/or documents and nonpublic policies, procedures and other printed or\nwritten material generated or used in connection with the Company's business; the Company's business plans and strategies; the\nidentities of the Company's customers and the specific individual customer representatives with whom the Company works and\ndetails of the Company's relationship with such customers and customer representatives; the identities of other persons or\ncompanies utilized in the Company's business and details of the Company's relationship with such persons or companies; the\nnature of fees and charges made to the Company's customers; nonpublic forms, contracts and other documents used in the\nCompany's business; the nature and content of computer software used in the Company's business, whether proprietary to the\nCompany or used by the Company under license from a third party; and/or other information concerning know-how, research,\ninventions, copyrights, trademarks, patent applications, patents, processes, designs, technical specifications, methods, concepts,\nprospects, customers, employees, contractors, earnings, products, services, formulas, compositions, machines, equipment,\nsystems, and/or prospective and executed contracts and other business arrangements. As used in this Agreement, "Company"\nincludes any direct or indirect subsidiary or affiliate of the Company.\nConfidential Information under this agreement shall not include information which (i) Employee can demonstrate\nwas in Employee's possession prior to employment with the Company (unless such information is assigned to, or otherwise\nbecomes the property of, the Company or (ii) is now in the public domain, or hereafter enters the public domain through no violation\nby Employee of the obligations hereunder or any other obligation of confidentiality, or (iii) is lawfully obtained from a source (other\nthan the Company, its affiliates or representatives) in accordance with the terms and conditions, if any, imposed upon Employee by\nsuch source respecting the use and disclosure thereof; provided, however, that such source was not at the time bound by a\nconfidentiality agreement with the Company or any of its affiliates or representatives. Confidential Information shall also not include\ngeneric information, knowledge or skill which Employee reasonably would have learned or acquired in the course of similar\nemployment or work elsewhere in the trade.\n(b) Restrictions on Employee's Use of Confidential Information. Except in connection with and in furtherance of\nEmployee's official duties with and on behalf of the Company, Employee shall not at any time or in any manner use, copy, disclose,\ndivulge, transmit, convey, transfer or otherwise communicate any Confidential Information to any person or entity, either directly or\nindirectly, without the Company's prior written consent.\n(c) Acknowledgment. Employee acknowledges that during the term of this Agreement, Employee will have access to\nConfidential Information, all of which shall be made accessible to Employee only in strict confidence; that unauthorized disclosure of\nConfidential Information will damage the Company's business; that Confidential Information would be susceptible to immediate\ncompetitive application by a competitor of the Company; that the Company's business is substantially dependent on access to and\nthe continuing secrecy of Confidential Information; that Confidential Information is unique and proprietary to the Company and\nknown only to Employee, the Company and certain key employees and contractors of the Company; and that title, ownership,\npossession and control of Confidential Information shall at all times remain vested in the Company. Consequently, Employee\nacknowledges that the restrictions contained in this Section 1 are reasonable and necessary for the protection of the Company's\nbusiness.\n(d) Documents and Other Records Containing Confidential Information. All documents or other records containing or\nalluding to Confidential Information that are prepared by or provided to Employee during the term of this Agreement or that come\ninto Employee's possession in connection with Employee's performance of services for the Company are and shall remain the\nCompany's property. Employee shall not copy or use any such documents or Confidential Information for any purpose not relating\ndirectly to Employee's performance of services for the Company, nor shall Employee market or in any way provide or make\navailable to any party other than the Company any of the Confidential Information, except pursuant to prior written authorization\nfrom the Company. Upon the termination of this Agreement for any reason and regardless of the circumstances of such termination\nor the existence of any dispute between Employee and the Company following or concerning the termination of Employee's\nemployment, or upon the request of the Company, its successors or assigns, Employee shall immediately deliver to the Company or\nits designee (and will not keep in Employee's possession or deliver to anyone else, including any copies) any and all devices,\nrecords, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment,\nother documents or property, or reproductions of any aforementioned items belonging to the Company, its successors or assigns.\nNotwithstanding any other provision of this Agreement, this Agreement shall not bar Employee from complying with any subpoena\nor court order, provided that prior to doing so Employee shall give the Company written notice, at the Company's principal place of\nbusiness, of Employee's receipt of any such subpoena or court order as far as possible in advance of the appearance time set forth\nin the subpoena or court order.\n(e) Third-Parties' Confidential Information. Employee acknowledges that the Company has received and in the future\nwill receive from third parties confidential or proprietary information, and that the Company must maintain the confidentiality of such\ninformation and use it only for proper purposes. Employee shall not use or disclose any such information except as permitted by the\nCompany or the third party to whom the information belongs.\n(f) Other Agreements. Employee represents to the Company that, except as identified on Schedule A hereto, Employee\nis not bound by any agreement or any other previous or existing business relationship which conflicts with or prevents the full\nperformance of any of Employee's obligations to the Company. During Employee's employment with the Company, Employee\nagrees not to improperly use or disclose any proprietary information or trade secrets of any former or concurrent employer, or any\nother person or entity with whom Employee has an agreement or to whom Employee owes a duty to keep such information in\nconfidence. Any such persons or entities with whom Employee has such agreements or to whom Employee owes such a duty are\nidentified on Schedule A.\n2. Inventions.\n(a) Disclosure. Employee agrees to disclose promptly to the Company the full details of any and all ideas, processes,\ntrademarks and service marks, technical data, know-how, works, inventions, discoveries, marketing and business ideas, and\nimprovements or enhancements to any of the foregoing, including all information necessary to enable the Company to reproduce\nany of the foregoing, (collectively, "Inventions"), that Employee conceives, develops or creates alone or with the aid of others during\nthe term of Employee's employment with the Company (whether or not conceived, developed or created during regular working\nhours) that: (i) relate to the Company's business; (ii) result from any work performed by Employee for the Company; (iii) involve the\nuse of the Company's equipment, supplies, facilities, or trade secret information; (iv) result from or are suggested by any work done\nat the Company's request or by any Company employee other than Employee, or relate to any problems specifically assigned to\nEmployee; or (v) result from Employee's access to any of the Company's memoranda, notes, records, drawings, sketches, models,\nmaps, customer lists, research results, data, formula, specifications, inventions, processes, equipment, or the like.\nInventions under this Agreement shall not include any invention that i) was developed on Employee's own time; ii)\nwas developed without the use of the Company's equipment, supplies, facilities, or Confidential Information; and iii) does not relate\nto the business of the Company.\n(b) Assignment. Employee shall assign and hereby assigns to the Company, without further consideration, Employee's\nentire right to any Invention which shall be the sole and exclusive property of the Company whether or not patentable. Employee\nacknowledges also that all Inventions which are made by Employee (solely or jointly with others), within the scope of Employee's\nemployment, and which are protectable by copyright, are "works made for hire," as that term is defined in the United States\nCopyright Act (17 U.S. C. § 101). To the extent that any such Inventions, by operation of law, cannot be "works made for hire,"\nEmployee hereby assigns to the Company all right, title, and interest in and to such Inventions and to any related copyrights.\n3. General Provisions.\n(@) Additional Instruments. Employee shall execute, acknowledge and deliver any additional instruments or documents\nthat the Company deems necessary to carry out the intentions of this Agreement, including such instruments as may be required by\nthe laws of any jurisdiction, now in effect or hereinafter enacted, that may affect the Company's property rights relating to the rights\nand obligations created by this Agreement. Employee further agrees, as to all the Inventions, to assist the Company in every way\n(at the Company's expense) to obtain and, from time to time, enforce patents on the Inventions in any and all countries. To that end,\nby way of illustration but not limitation, Employee will testify in any suit or other proceeding involving any of the Inventions, execute\nall documents which the Company reasonably determines to be necessary or convenient for use in applying for and obtaining\npatents thereon and enforcing same, and execute all necessary assignments thereof to the Company or persons designated by it.\nEmployee's obligation to assist the Company in obtaining and enforcing patents for the Inventions in any and all countries shall\ncontinue beyond the termination of Employee's employment, but the Company shall compensate Employee at a reasonable rate\nafter such termination for time actually spent by Employee at the Company's request on such assistance. In the event the Company\nis unable, after reasonable effort, to secure Employee's signature on any document or documents needed to apply for or prosecute\nany patent, copyright or other right or protection relating to any Invention, whether because of Employee's physical or mental\nincapacity or for any other reason whatsoever, Employee hereby irrevocably designates and appoints the Company and its duly\nauthorized officers and agents as Employee's agent and attorney-in-fact, to act for and in Employee's behalf and stead to execute\nand file any such application or applications and to do all other lawfully permitted acts to further the prosecution and issuance of\npatents, copyrights or similar protections thereon with the same legal force and effect as if executed by Employee.\n(b) Remedies. Employee acknowledges that upon a breach of this Agreement the Company will suffer immediate and\nirreparable harm and damage for which money alone cannot fully compensate the Company. Employee therefore agrees that upon\nsuch breach or threat of imminent breach of this Agreement, the Company shall be entitled to a temporary restraining order,\npreliminary injunction, permanent injunction or other injunctive relief, without posting any bond or other security, barring Employee\nfrom violating any provision of this Agreement. At the Company's option, any action to enforce this Agreement shall be brought in or\ntransferred to the state or federal court situated in Boulder, Colorado. Nothing in this Agreement shall be construed as an election of\nany remedy, or as a waiver of any right available to the Company under this Agreement or the law, including the right to seek\ndamages from Employee for a breach of any provision of this Agreement.\n(c) Non-Solicitation of Employees. Employee agrees that during the term of employment and for a period of two years\nafter the termination or cessation of employment for any reason, Employee shall not directly or indirectly recruit, solicit or hire any\nemployee of the Company, or induce or attempt to induce any employee of the Company to discontinue his or her employment\nrelationship with the Company.\n(d) Not an Employment Contract. Employee agrees and understands that nothing in this Agreement shall confer any\nright with respect to continuation of employment by the Company, nor shall it interfere in any way with Employee's right or the\nCompany's right to terminate Employee's employment at any time, with or without cause.\n(e) Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by and construed according to\nthe laws of the State of Colorado. Employee hereby expressly consents to the personal jurisdiction of the state and federal courts\nlocated in Colorado for any lawsuit filed there against Employee by the Company arising from or relating to this Agreement.\n(f) Entire Agreement. This Agreement sets forth the final, complete and exclusive agreement and understanding\nbetween the Company and Employee relating to the subject matter hereof. No modification of or amendment to this Agreement, nor\nany waiver of any rights under this Agreement, will be effective unless in writing signed by the party to be charged. No subsequent\nchange or changes in Employee's duties, salary or compensation will affect the validity or scope of this Agreement.\n(g) Severability. If one or more of the provisions in this Agreement are deemed unenforceable by law, then the remaining\nprovisions will continue in full force and effect.\n(h) Survival. The provisions of this Agreement shall survive the termination of Employee's employment for any reason\nand the assignment of this Agreement by the Company to any successor in interest or other assignee.\n(i) Waiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding or succeeding\nbreach. No waiver by the Company of any right under this Agreement shall be construed as a waiver of any other right.\n(j) Effective Date. This Agreement is effective as of the first day of Employee's employment with the Company. Employee\nunderstands that this Agreement affects Employee's rights to works and inventions Employee develops during Employee's\nemployment with the Company and restricts Employee's ability to disclose or use Confidential Information.\n[signature page follows]\nIN WITNESS WHEREOF, the parties have executed this agreement to be effective as of the Effective Date.\nCOMPANY:\nARRAY BIOPHARMA, INC., a Delaware corporation\nBy: /s/ Ron Squarer\nName: Ron Squarer\nTitle: Chief Executive Officer\n| HAVE READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND | UNDERSTAND, AND AGREE TO, EACH OF\nSUCH PROVISIONS. | UNDERSTAND THAT THIS AGREEMENT MAY AFFECT MY RIGHT TO ACCEPT EMPLOYMENT WITH\nOTHER COMPANIES SUBSEQUENT TO MY EMPLOYMENT WITH THE COMPANY.\nEMPLOYEE:\nBy: /s/ Victor Sandor\nVictor Sandor, M.D	EX-10.3 a8k91114ex10d3.htm EX-10.3\nEXHIBIT 10.3\nCONFIDENTIALITY AND INVENTIONS AGREEMENT\nThis Confidentiality and Inventions Agreement (this "Agreement"), by and between Array BioPharma Inc., a Delaware corporation\n(the "Company"), and Victor Sandor, M.D, an individual ("Employee"), is executed to be effective as of the "Effective Date" set forth\nin Section 3(i) below.\nAs a condition to, and in consideration of Employee's employment or continued employment (as the case may be) with the\nCompany, and in consideration of the mutual covenants and agreements contained herein and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\n1. Protection of Trade Secrets and Confidential Information.\n(a) Definition of "Confidential Information." As used in this Agreement, the term "Confidentia Information" shall include\nall information concerning or arising from the Company's business, including, without limitation, trade secrets used or developed by\nthe Company in connection with its business; information concerning the manner and details of the Company's operation,\norganization\nand\nmanagement;\nfinancial\ninformation\nand/or\ndocuments\nand\nnonpublic\npolicies,\nprocedures\nand\nother\nprinted\nor\nwritten material generated or used in connection with the Company's business; the Company's business plans and strategies; the\nidentities of the Company's customers and the specific individual customer representatives with whom the Company works and\ndetails of the Company's relationship with such customers and customer representatives; the identities of other persons or\ncompanies utilized in the Company's business and details of the Company's relationship with such persons or companies; the\nnature of fees and charges made to the Company's customers; nonpublic forms, contracts and other documents used in the\nCompany's business; the nature and content of computer software used in the Company's business, whether proprietary to the\nCompany or used by the Company under license from a third party; and/or other information concerning know-how, research,\ninventions, copyrights, trademarks, patent applications, patents, processes, designs, technical specifications, methods, concepts,\nprospects, customers, employees, contractors, earnings, products, services, formulas, compositions, machines, equipment,\nsystems, and/or prospective and executed contracts and other business arrangements. As used in this Agreement, "Company"\nincludes any direct or indirect subsidiary or affiliate of the Company.\nConfidential Information under this agreement shall not include information which (i) Employee can demonstrate\nwas in Employee's possession prior to employment with the Company (unless such information is assigned to, or otherwise\nbecomes the property of, the Company or (ii) is now in the public domain, or hereafter enters the public domain through no violation\nby\nEmployee of the obligations hereunder or any other obligation of confidentiality, or (iii) is lawfully obtained from a source (other\nthan\nthe\nCompany,\nits\naffiliates\nor\nrepresentatives)\nin\naccordance\nwith\nthe\nterms\nand\nconditions,\nif\nany,\nimposed\nupon\nEmployee\nby\nsuch source respecting the use and disclosure thereof; provided, however, that such source was not at the time bound by a\nconfidentiality agreement with the Company or any of its affiliates or representatives. Confidential Information shal also not include\ngeneric information, knowledge or skill which Employee reasonably would have learned or acquired in the course of similar\nemployment or work elsewhere in the trade.\n(b) Restrictions on Employee's Use of Confidential Information. Except in connection with and in furtherance of\nEmployee's official duties with and on behalf of the Company, Employee shall not at any time or in any manner use, copy, disclose,\ndivulge, transmit, convey, transfer or otherwise communicate any Confidential Information to any person or entity, either directly or\nindirectly, without the Company's prior written consent.\n(c)\nAcknowledgment. Employee acknowledges that during the term of this Agreement, Employee will have access\nto\nConfidential Information, all of which shall be made accessible to Employee only in strict confidence; that unauthorized disclosure of\nConfidential Information will damage the Company's business; that Confidential Information would be susceptible to immediate\ncompetitive application by a competitor of the Company; that the Company's business is substantially dependent on access to and\nthe continuing secrecy of Confidential Information; that Confidential Information is unique and proprietary to the Company and\nknown only to Employee, the Company and certain key employees and contractors of the Company; and that title, ownership,\npossession and control of Confidential Information shall at all times remain vested in the Company. Consequently, Employee\nacknowledges that the restrictions contained in this Section 1 are reasonable and necessary for the protection of the Company's\nbusiness.\n(d) Documents and Other Records Containing Confidential Information. Al documents or other records containing or\nalluding to Confidential Information that are prepared by or provided to Employee during the term of this Agreement or that come\ninto Employee's possession in connection with Employee's performance of services for the Company are and shall remain the\nCompany's property. Employee shall not copy or use any such documents or Confidential Information for any purpose not\nrelating\ndirectly to Employee's performance of services for the Company, nor shall Employee market or in any way provide or make\navailable to any party other than the Company any of the Confidential Information, except pursuant to prior written authorization\nfrom\nthe\nCompany.\nUpon\nthe\ntermination\nof\nthis\nAgreement\nfor\nany\nreason\nand\nregardless\nof\nthe\ncircumstances\nof\nsuch\ntermination\nor the existence of any dispute between Employee and the Company following or concerning the termination of Employee's\nemployment, or upon the request of the Company, its successors or assigns, Employee shall immediately deliver to the Company or\nits\ndesignee\n(and\nwill\nnot\nkeep\nin\nEmployee's\npossession\nor\ndeliver\nto\nanyone\nelse,\nincluding\nany\ncopies)\nany\nand\nall\ndevices,\nrecords, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment,\nother documents or property, or reproductions of any aforementioned items belonging to the Company, its successors or assigns.\nNotwithstanding any other provision of this Agreement, this Agreement shall not bar Employee from complying with any subpoena\nor court order, provided that prior to doing so Employee shall give the Company written notice, at the Company's principal place of\nbusiness, of Employee's receipt of any such subpoena or court order as far as possible in advance of the appearance time set forth\nin the subpoena or court order.\n(e) Third-Parties' Confidential Information. Employee acknowledges that the Company has received and in the future\nwil receive from third parties confidential or proprietary information, and that the Company must maintain the confidentiality of such\ninformation and use it only for proper purposes. Employee shall not use or disclose any such information except as permitted by the\nCompany or the third party to whom the information belongs.\n(f) Other Agreements. Employee represents to the Company that, except as identified on Schedule A hereto, Employee\nis not bound by any agreement or any other previous or existing business relationship which conflicts with or prevents the full\nperformance of any of Employee's obligations to the Company. During Employee's employment with the Company, Employee\nagrees not to improperly use or disclose any proprietary information or trade secrets of any former or concurrent employer, or any\nother\nperson\nor\nentity\nwith\nwhom\nEmployee\nhas\nan\nagreement\nor\nto\nwhom\nEmployee\nowes\na\nduty\nto\nkeep\nsuch\ninformation\nin\nconfidence. Any such persons or entities with whom Employee has such agreements or to whom Employee owes such a duty are\nidentified on Schedule A.\n2. Inventions.\n(a) Disclosure. Employee agrees to disclose promptly to the Company the full details of any and all ideas, processes,\ntrademarks and service marks, technical data, know-how, works, inventions, discoveries, marketing and business ideas, and\nimprovements or enhancements to any of the foregoing, including all information necessary to enable the Company to reproduce\nany of the foregoing, (collectively, "Inventions"), that Employee conceives, develops or creates alone or with the aid of others during\nthe term of Employee's employment with the Company (whether or not conceived, developed or created during regular working\nhours)\nthat:\n(i)\nrelate\nto\nthe\nCompany's\nbusiness;\n(ii)\nresult\nfrom\nany\nwork\nperformed\nby\nEmployee\nfor\nthe\nCompany;\n(iii)\ninvolve\nthe\nuse of the Company's equipment, supplies, facilities, or trade secret information; (iv) result from or are suggested by any work done\nat the Company's request or by any Company employee other than Employee, or relate to any problems specifically assigned to\nEmployee; or (v) result from Employee's access to any of the Company's memoranda, notes, records, drawings, sketches, models,\nmaps, customer lists, research results, data, formula, specifications, inventions, processes, equipment, or the like.\nInventions under this Agreement shall not include any invention that i) was developed on Employee's own time; ii)\nwas developed without the use of the Company's equipment, supplies, facilities, or Confidential Information; and iii) does not relate\nto the business of the Company.\n(b) Assignment. Employee shall assign and hereby assigns to the Company, without further consideration, Employee's\nentire right to any Invention which shall be the sole and exclusive property of the Company whether or not patentable. Employee\nacknowledges\nalso\nthat\nall\nInventions\nwhich\nare\nmade\nby\nEmployee\n(solely\nor\njointly\nwith\nothers),\nwithin\nthe\nscope\nof\nEmployee's\nemployment, and which are protectable by copyright, are "works made for hire," as that term is defined in the United States\nCopyright Act (17 U.S. C. 8 101). To the extent that any such Inventions, by operation of law, cannot be "works made for hire,"\nEmployee hereby assigns to the Company all right, title, and interest in and to such Inventions and to any related copyrights.\n3. General Provisions.\n(a) Additional Instruments. Employee shall execute, acknowledge and deliver any additional instruments or documents\nthat the Company deems necessary to carry out the intentions of this Agreement, including such instruments as may be required by\nthe laws of any jurisdiction, now in effect or hereinafter enacted, that may affect the Company's property rights relating to the rights\nand obligations created by this Agreement. Employee further agrees, as to all the Inventions, to assist the Company in every way\n(at the Company's expense) to obtain and, from time to time, enforce patents on the Inventions in any and all countries. To that end,\nby way of illustration but not limitation, Employee will testify in any suit or other proceeding involving any of the Inventions, execute\nall documents which the Company reasonably determines to be necessary or convenient for use in applying for and obtaining\npatents thereon and enforcing same, and execute all necessary assignments thereof to the Company or persons designated by it.\nEmployee's obligation to assist the Company in obtaining and enforcing patents for the Inventions in any and all countries shall\ncontinue beyond the termination of Employee's employment, but the Company shall compensate Employee at a reasonable rate\nafter\nsuch\ntermination\nfor\ntime\nactually\nspent\nby\nEmployee\nat\nthe\nCompany's\nrequest\non\nsuch\nassistance.\nIn\nthe\nevent\nthe\nCompany\nis unable, after reasonable effort, to secure Employee's signature on any document or documents needed to apply for or prosecute\nany patent, copyright or other right or protection relating to any Invention, whether because of Employee's physical or menta\nincapacity\nor\nfor\nany\nother\nreason\nwhatsoever,\nEmployee\nhereby\nirrevocably\ndesignates\nand\nappoints\nthe\nCompany\nand\nits\nduly\nauthorized officers and agents as Employee's agent and attorney-in-fact, to act for and in Employee's behalf and stead to execute\nand file any such application or applications and to do all other lawfully permitted acts to further the prosecution and issuance of\npatents, copyrights or similar protections thereon with the same legal force and effect as if executed by Employee.\n(b) Remedies. Employee acknowledges that upon a breach of this Agreement the Company will suffer immediate and\nirreparable harm and damage for which money alone cannot fully compensate the Company. Employee therefore agrees that upon\nsuch breach or threat of imminent breach of this Agreement, the Company shall be entitled to a temporary restraining order,\npreliminary injunction, permanent injunction or other injunctive relief, without posting any bond or other security, barring Employee\nfrom violating any provision of this Agreement. At the Company's option, any action to enforce this Agreement shal be brought in or\ntransferred to the state or federal court situated in Boulder, Colorado. Nothing in this Agreement shall be construed as an election of\nany remedy, or as a waiver of any right available to the Company under this Agreement or the law, including the right to seek\ndamages from Employee for a breach of any provision of this Agreement.\n(c) Non-Solicitation of Employees. Employee agrees that during the term of employment and for a period of two years\nafter the termination or cessation of employment for any reason, Employee shall not directly or indirectly recruit, solicit or\nhire\nany\nemployee of the Company, or induce or attempt to induce any employee of the Company to discontinue his or her employment\nrelationship with the Company.\n(d) Not an Employment Contract Employee agrees and understands that nothing in this Agreement shall confer any\nright with respect to continuation of employment by the Company, nor shall it interfere in any way with Employee's right or the\nCompany's right to terminate Employee's employment at any time, with or without cause.\n(e) Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by and construed according to\nthe laws of the State of Colorado. Employee hereby expressly consents to the personal jurisdiction of the state and federal courts\nlocated in Colorado for any lawsuit filed there against Employee by the Company arising from or relating to this Agreement.\n(f) Entire Agreement. This Agreement sets forth the final, complete and exclusive agreement and understanding\nbetween the Company and Employee relating to the subject matter hereof. No modification of or amendment to this Agreement, nor\nany waiver of any rights under this Agreement, will be effective unless in writing signed by the party to be charged. No subsequent\nchange or changes in Employee's duties, salary or compensation will affect the validity or scope of this Agreement.\n(g) Severability. If one or more of the provisions in this Agreement are deemed unenforceable by law, then the remaining\nprovisions will continue in full force and effect.\n(h) Survival. The provisions of this Agreement shall survive the termination of Employee's employment for any reason\nand the assignment of this Agreement by the Company to any successor in interest or other assignee.\n(i) Waiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding or succeeding\nbreach. No waiver by the Company of any right under this Agreement shall be construed as a waiver of any other right.\n(i) Effective Date. This Agreement is effective as of the first day of Employee's employment with the Company. Employee\nunderstands that this Agreement affects Employee's rights to works and inventions Employee develops during Employee's\nemployment with the Company and restricts Employee's ability to disclose or use Confidential Information.\n[signature page follows]\nIN WITNESS WHEREOF, the parties have executed this agreement to be effective as of the Effective Date.\nCOMPANY:\nARRAY BIOPHARMA, INC., a Delaware corporation\nBy: /s/ Ron Squarer\nName: Ron Squarer\nTitle: Chief Executive Officer\nI HAVE READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND I UNDERSTAND, AND AGREE TO, EACH OF\nSUCH PROVISIONS. I UNDERSTAND THAT THIS AGREEMENT MAY AFFECT MY RIGHT TO ACCEPT EMPLOYMENT WITH\nOTHER COMPANIES SUBSEQUENT TO MY EMPLOYMENT WITH THE COMPANY.\nEMPLOYEE:\nBy: Is/ Victor Sandor\nVictor Sandor, M.D	EX-10 .3 4 a8k91114ex10d3.htm EX-10 .3\nEXHIBIT 10.3\nCONFIDENTIALITY AND INVENTIONS AGREEMENT\nThis Confidentiality and Inventions Agreement (this "Agreement"), by and between Array BioPharma Inc., a Delaware corporation\n(the "Company"), and Victor Sandor, M.D, an individual ("Employee"), is executed to be effective as of the "Effective Date" set forth\nin Section 3(j) below.\nAs a condition to, and in consideration of Employee's employment or continued employment (as the case may be) with the\nCompany, and in consideration of the mutual covenants and agreements contained herein and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\n1. Protection of Trade Secrets and Confidential Information.\n(a) Definition of "Confidential Information." As used in this Agreement, the term "Confidential Information" shall include\nall information concerning or arising from the Company's business, including, without limitation, trade secrets used or developed by\nthe Company in connection with its business; information concerning the manner and details of the Company's operation,\norganization and management; financial information and/or documents and nonpublic policies, procedures and other printed or\nwritten material generated or used in connection with the Company's business; the Company's business plans and strategies; the\nidentities of the Company's customers and the specific individual customer representatives with whom the Company works and\ndetails of the Company's relationship with such customers and customer representatives; the identities of other persons or\ncompanies utilized in the Company's business and details of the Company's relationship with such persons or companies; the\nnature of fees and charges made to the Company's customers; nonpublic forms, contracts and other documents used in the\nCompany's business; the nature and content of computer software used in the Company's business, whether proprietary to the\nCompany or used by the Company under license from a third party; and/or other information concerning know-how, research,\ninventions, copyrights, trademarks, patent applications, patents, processes, designs, technical specifications, methods, concepts,\nprospects, customers, employees, contractors, earnings, products, services, formulas, compositions, machines, equipment,\nsystems, and/or prospective and executed contracts and other business arrangements. As used in this Agreement, "Company"\nincludes any direct or indirect subsidiary or affiliate of the Company.\nConfidential Information under this agreement shall not include information which (i) Employee can demonstrate\nwas in Employee's possession prior to employment with the Company (unless such information is assigned to, or otherwise\nbecomes the property of, the Company or (ii) is now in the public domain, or hereafter enters the public domain through no violation\nby Employee of the obligations hereunder or any other obligation of confidentiality, or (iii) is lawfully obtained from a source (other\nthan the Company, its affiliates or representatives) in accordance with the terms and conditions, if any, imposed upon Employee by\nsuch source respecting the use and disclosure thereof; provided, however, that such source was not at the time bound by a\nconfidentiality agreement with the Company or any of its affiliates or representatives. Confidential Information shall also not include\ngeneric information, knowledge or skill which Employee reasonably would have learned or acquired in the course of similar\nemployment or work elsewhere in the trade.\n(b) Restrictions on Employee's Use of Confidential Information. Except in connection with and in furtherance of\nEmployee's official duties with and on behalf of the Company, Employee shall not at any time or in any manner use, copy, disclose,\ndivulge, transmit, convey, transfer or otherwise communicate any Confidential Information to any person or entity, either directly or\nindirectly, without the Company's prior written consent.\n(c) Acknowledgment. Employee acknowledges that during the term of this Agreement, Employee will have access to\nConfidential Information, all of which shall be made accessible to Employee only in strict confidence; that unauthorized disclosure of\nConfidential Information will damage the Company's business; that Confidential Information would be susceptible to immediate\ncompetitive application by a competitor of the Company; that the Company's business is substantially dependent on access to and\nthe continuing secrecy of Confidential Information; that Confidential Information is unique and proprietary to the Company and\nknown only to Employee, the Company and certain key employees and contractors of the Company; and that title, ownership,\npossession and control of Confidential Information shall at all times remain vested in the Company. Consequently, Employee\nacknowledges that the restrictions contained in this Section 1 are reasonable and necessary for the protection of the Company's\nbusiness.\n(d) Documents and Other Records Containing Confidential Information. All documents or other records containing or\nalluding to Confidential Information that are prepared by or provided to Employee during the term of this Agreement or that come\ninto Employee's possession in connection with Employee's performance of services for the Company are and shall remain the\nCompany's property. Employee shall not copy or use any such documents or Confidential Information for any purpose not relating\ndirectly to Employee's performance of services for the Company, nor shall Employee market or in any way provide or make\navailable to any party other than the Company any of the Confidential Information, except pursuant to prior written authorization\nfrom the Company. Upon the termination of this Agreement for any reason and regardless of the circumstances of such termination\nor the existence of any dispute between Employee and the Company following or concerning the termination of Employee's\nemployment, or upon the request of the Company, its successors or assigns, Employee shall immediately deliver to the Company or\nits designee (and will not keep in Employee's possession or deliver to anyone else, including any copies) any and all devices,\nrecords, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment,\nother documents or property, or reproductions of any aforementioned items belonging to the Company, its successors or assigns.\nNotwithstanding any other provision of this Agreement, this Agreement shall not bar Employee from complying with any subpoena\nor court order, provided that prior to doing so Employee shall give the Company written notice, at the Company's principal place of\nbusiness, of Employee's receipt of any such subpoena or court order as far as possible in advance of the appearance time set forth\nin the subpoena or court order.\n(e) Third-Parties' Confidential Information. Employee acknowledges that the Company has received and in the future\nwill receive from third parties confidential or proprietary information, and that the Company must maintain the confidentiality of such\ninformation and use it only for proper purposes. Employee shall not use or disclose any such information except as permitted by the\nCompany or the third party to whom the information belongs.\n(f) Other Agreements. Employee represents to the Company that, except as identified on Schedule A hereto, Employee\nis not bound by any agreement or any other previous or existing business relationship which conflicts with or prevents the full\nperformance of any of Employee's obligations to the Company. During Employee's employment with the Company, Employee\nagrees not to improperly use or disclose any proprietary information or trade secrets of any former or concurrent employer, or any\nother person or entity with whom Employee has an agreement or to whom Employee owes a duty to keep such information in\nconfidence. Any such persons or entities with whom Employee has such agreements or to whom Employee owes such a duty are\nidentified on Schedule A.\n2. Inventions.\n(a) Disclosure. Employee agrees to disclose promptly to the Company the full details of any and all ideas, processes,\ntrademarks and service marks, technical data, know-how, works, inventions, discoveries, marketing and business ideas, and\nimprovements or enhancements to any of the foregoing, including all information necessary to enable the Company to reproduce\nany of the foregoing, (collectively, "Inventions"), that Employee conceives, develops or creates alone or with the aid of others during\nthe term of Employee's employment with the Company (whether or not conceived, developed or created during regular working\nhours) that: (i) relate to the Company's business; (ii) result from any work performed by Employee for the Company; (iii) involve the\nuse of the Company's equipment, supplies, facilities, or trade secret information; (iv) result from or are suggested by any work done\nat the Company's request or by any Company employee other than Employee, or relate to any problems specifically assigned to\nEmployee; or (v) result from Employee's access to any of the Company's memoranda, notes, records, drawings, sketches, models,\nmaps, customer lists, research results, data, formula, specifications, inventions, processes, equipment, or the like.\nInventions under this Agreement shall not include any invention that i) was developed on Employee's own time; ii)\nwas developed without the use of the Company's equipment, supplies, facilities, or Confidential Information; and iii) does not relate\nto the business of the Company.\n(b) Assignment. Employee shall assign and hereby assigns to the Company, without further consideration, Employee's\nentire right to any Invention which shall be the sole and exclusive property of the Company whether or not patentable. Employee\nacknowledges also that all Inventions which are made by Employee (solely or jointly with others), within the scope of Employee's\nemployment, and which are protectable by copyright, are "works made for hire," as that term is defined in the United States\nCopyright Act (17 U.S . C. § 101). To the extent that any such Inventions, by operation of law, cannot be "works made for hire,"\nEmployee hereby assigns to the Company all right, title, and interest in and to such Inventions and to any related copyrights.\n3. General Provisions.\n(a) Additional Instruments. Employee shall execute, acknowledge and deliver any additional instruments or documents\nthat the Company deems necessary to carry out the intentions of this Agreement, including such instruments as may be required by\nthe laws of any jurisdiction, now in effect or hereinafter enacted, that may affect the Company's property rights relating to the rights\nand obligations created by this Agreement. Employee further agrees, as to all the Inventions, to assist the Company in every way\n(at the Company's expense) to obtain and, from time to time, enforce patents on the Inventions in any and all countries. To that end,\nby way of illustration but not limitation, Employee will testify in any suit or other proceeding involving any of the Inventions, execute\nall documents which the Company reasonably determines to be necessary or convenient for use in applying for and obtaining\npatents thereon and enforcing same, and execute all necessary assignments thereof to the Company or persons designated by it.\nEmployee's obligation to assist the Company in obtaining and enforcing patents for the Inventions in any and all countries shall\ncontinue beyond the termination of Employee's employment, but the Company shall compensate Employee at a reasonable rate\nafter such termination for time actually spent by Employee at the Company's request on such assistance. In the event the Company\nis unable, after reasonable effort, to secure Employee's signature on any document or documents needed to apply for or prosecute\nany patent, copyright or other right or protection relating to any Invention, whether because of Employee's physical or mental\nincapacity or for any other reason whatsoever, Employee hereby irrevocably designates and appoints the Company and its duly\nauthorized officers and agents as Employee's agent and attorney-in-fact, to act for and in Employee's behalf and stead to execute\nand file any such application or applications and to do all other lawfully permitted acts to further the prosecution and issuance of\npatents, copyrights or similar protections thereon with the same legal force and effect as if executed by Employee.\n(b) Remedies. Employee acknowledges that upon a breach of this Agreement the Company will suffer immediate and\nirreparable harm and damage for which money alone cannot fully compensate the Company. Employee therefore agrees that upon\nsuch breach or threat of imminent breach of this Agreement, the Company shall be entitled to a temporary restraining order,\npreliminary injunction, permanent injunction or other injunctive relief, without posting any bond or other security, barring Employee\nfrom violating any provision of this Agreement. At the Company's option, any action to enforce this Agreement shall be brought in or\ntransferred to the state or federal court situated in Boulder, Colorado. Nothing in this Agreement shall be construed as an election of\nany remedy, or as a waiver of any right available to the Company under this Agreement or the law, including the right to seek\ndamages from Employee for a breach of any provision of this Agreement.\n(c) Non-Solicitation of Employees. Employee agrees that during the term of employment and for a period of two years\nafter the termination or cessation of employment for any reason, Employee shall not directly or indirectly recruit, solicit or hire any\nemployee of the Company, or induce or attempt to induce any employee of the Company to discontinue his or her employment\nrelationship with the Company.\n(d) Not an Employment Contract. Employee agrees and understands that nothing in this Agreement shall confer any\nright with respect to continuation of employment by the Company, nor shall it interfere in any way with Employee's right or the\nCompany's right to terminate Employee's employment at any time, with or without cause.\n(e) Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by and construed according to\nthe laws of the State of Colorado. Employee hereby expressly consents to the personal jurisdiction of the state and federal courts\nlocated in Colorado for any lawsuit filed there against Employee by the Company arising from or relating to this Agreement.\n(f) Entire Agreement. This Agreement sets forth the final, complete and exclusive agreement and understanding\nbetween the Company and Employee relating to the subject matter hereof. No modification of or amendment to this Agreement, nor\nany waiver of any rights under this Agreement, will be effective unless in writing signed by the party to be charged. No subsequent\nchange or changes in Employee's duties, salary or compensation will affect the validity or scope of this Agreement.\n(g) Severability. If one or more of the provisions in this Agreement are deemed unenforceable by law, then the remaining\nprovisions will continue in full force and effect.\n(h) Survival. The provisions of this Agreement shall survive the termination of Employee's employment for any reason\nand the assignment of this Agreement by the Company to any successor in interest or other assignee.\n(i) Waiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding or succeeding\nbreach. No waiver by the Company of any right under this Agreement shall be construed as a waiver of any other right.\n(j) Effective Date. This Agreement is effective as of the first day of Employee's employment with the Company. Employee\nunderstands that this Agreement affects Employee's rights to works and inventions Employee develops during Employee's\nemployment with the Company and restricts Employee's ability to disclose or use Confidential Information.\n[signature page follows]\nIN WITNESS WHEREOF, the parties have executed this agreement to be effective as of the Effective Date.\nCOMPANY:\nARRAY BIOPHARMA, INC., a Delaware corporation\nBy: /s/ Ron Squarer\nName: Ron Squarer\nTitle: Chief Executive Officer\nI HAVE READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND I UNDERSTAND, AND AGREE TO, EACH OF\nSUCH PROVISIONS. I UNDERSTAND THAT THIS AGREEMENT MAY AFFECT MY RIGHT TO ACCEPT EMPLOYMENT WITH\nOTHER COMPANIES SUBSEQUENT TO MY EMPLOYMENT WITH THE COMPANY.\nEMPLOYEE:\nBy: /s/ Victor Sandor\nVictor Sandor, M.D
+0d84472301a851e6cd6f0e670a18b516.pdf	effective_date jurisdiction party term	EXHIBIT B\nTO EMPLOYMENT AGREEMENT\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) is made as of this day of\n, 2004 by and among Sunstone Hotel Investors, Inc.,\na Maryland corporation (“Sunstone”), and Sunstone Hotel Partnership, LLC, a Delaware limited liability company (“Operating Partnership”)\n(Sunstone and the Operating Partnership collectively, the “Company”), and Gary A. Stougaard (“Executive”).\nFor good and valuable consideration, Executive and Company hereby agree as follows:\n1. This Agreement will be effective on\n, 2004.\n2. Executive hereby assigns to Company all rights or interests that Executive may presently have or which may be acquired during the term of\nExecutive’s employment with the Company, in Company “Proprietary Information” as defined below in Section 5, and acknowledges that all such\nProprietary Information is the sole property of Company and its assigns.\n3. Subject to the provisions of Section 7 hereof, in the event that, during the term of Executive’s employment with the Company, Executive\ncreates or assists in the creation of any Company “Proprietary Information,” or any other Company intellectual property, and/or Executive prepares,\naccumulates or otherwise comes into possession of any materials or information during the course of performance of Executive’s duties which relate\nin any manner to Company’s business or development of services, Executive agrees that all such “Proprietary Information” and intellectual property\nshall be and remain the property of Company. In the event Executive’s employment with Company is terminated, for any reason, Executive shall\npromptly deliver to Company all such “Proprietary Information” and intellectual property (and any copies thereof), as well as any materials related\nto Company’s trade secrets or confidential information (and any copies thereof), which are within Executive’s custody or control.\n4. Executive agrees to disclose to Company all “Proprietary Information” and intellectual property developed during the term of his\nemployment, whether made solely or jointly with others, which relate to Company’s business, research, or development of products and services.\n5. During the term of Executive’s employment with Company and thereafter, Executive will not offer or disclose by any means, or use in any\nmanner, for Executive’s own benefit or the benefit of any other person or entity (other than Company or its affiliates), any Company “Proprietary\nInformation” or Company intellectual property. As used herein, the terms “Proprietary Information,” “intellectual property” and “trade secrets,” shall\ninclude, but not be limited to: (a) all information of any kind regarding Company’s business, research, marketing, sales, operations and products and\nplans for development of new business products and services; (b) all operational designs and techniques related to business, marketing and financial\ninformation or data of any kind related to Company’s business and business opportunities; (c) all\nEXHIBIT B\n-1-\ninformation of any kind regarding Company’s suppliers, vendors, consultants, agents and customers, including lists or compilations of any such\npersons or entities; (d) all information of any kind regarding Company’s officers, directors and shareholders (other than Executive), including their\nrespective abilities, functions, conduct or pay; (e) all proprietary information of any kind received or developed under agreement or other\narrangement by Company with any third party; and (f) all unpublished materials received or developed, including all works of authorship, which\nrelate to the business of Company, including but not limited to those concerning proprietary, trade secret or Company-private information,\ninvestment strategies, development plans, research and development data, and any other technical reports relating to Company’s business operations\nnow existing or which may be developed during the term of Executive’s employment with Company.\n6. Executive understands and agrees that a breach of the provisions contained herein could cause significant and irreparable harm to Company\nthat could not be satisfactorily compensated in monetary terms. Accordingly, and without in any way limiting Company from taking any other legal\naction to which it may be entitled to under law or in equity, in the event of any such breach or threatened breach, Company will be entitled to\ninjunctive relief including the immediate ex parte issuance, without bond, of a temporary restraining order against any such breach of threatened\nbreach.\n7. This Agreement shall not apply to: (a) any invention developed by Executive which qualifies under the provisions of California Labor Code,\nSection 2870; (b) any information which is or becomes publicly available, unless it becomes such as a result of a breach of this Agreement; (c) any\ninformation which Company subsequently discloses to any other person or entity without restriction; or (d) disclosure required by law or legal\nprocess; provided, that if Executive receives actual notice that the Executive is or may be required by law or legal process to disclose any such\ninformation, Executive shall promptly so notify Company, but in any event no more than five (5) days after the receipt of such notice.\n8. No amendment or modification to this Agreement shall be valid unless in writing signed by Executive and an authorized officer of\nCompany.\n9. The execution of this Agreement shall not be construed in any manner to alter Executive’s employment with Company as provided in his\nEmployment Agreement.\n10. The waiver by any party of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent\nbreach thereof or as a waiver of any other provisions of this Agreement. The remedies set forth herein are nonexclusive and are in addition to any\nother remedies that any party may have at law or in equity.\n11. If any legal action, arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute,\nbreach or default in connection with any of the provisions of this Agreement, the prevailing party shall be entitled to recover attorneys’ fees and\ncosts as set forth in the Employment Agreement.\nEXHIBIT B\n-2-\n12. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered\nor certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive: at the Executive’s most recent address on the records of the Company,\nIf to the Company:\nc/o Sunstone Hotel Investors, Inc.\n903 Calle America, Suite 100\nSan Clemente, CA 92673\nAttn: Corporate Secretary\nwith a copy to:\nAllen Matkins Leck Gamble & Mallory LLP\n515 South Figueroa Street\nSeventh Floor\nLos Angeles, CA 90071-3398\nAttn: Michael F. Sfregola\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n13. This Agreement is entered into and shall be governed and interpreted in accordance with the laws of the State of California, without regard\nto or application of choice of law rules or principles. It shall be binding upon and inure to the benefit of the parties, and to their respective heirs,\npersonal representatives, successors and assigns. In the event that any provision of this Agreement is found by a court, arbitrator or other tribunal to\nillegal, invalid or unenforceable, then the remaining provisions of this Agreement shall not be voided, but shall be enforced to the maximum extent\npermissible by law.\nEXHIBIT B\n-3-\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.\n“EXECUTIVE”\nSUNSTONE HOTEL INVESTORS, INC.,\na Maryland corporation\nBy:\nGary A. Stougaard\nName:\nIts:\nSUNSTONE HOTEL PARTNERSHIP, LLC,\na Delaware limited liability company\nBy: Sunstone Hotel Investors, Inc.\nIts: Managing Member\nBy:\nName:\nIts:\nEXHIBIT B\n-4-	EXHIBIT B\nTO EMPLOYMENT AGREEMENT\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) is made as of this __ day of , 2004 by and among Sunstone Hotel Investors, Inc.,\na Maryland corporation (“Sunstone”), and Sunstone Hotel Partnership, LLC, a Delaware limited liability company (“Operating Partnership™)\n(Sunstone and the Operating Partnership collectively, the “Company”), and Gary A. Stougaard (“Executive”).\nFor good and valuable consideration, Executive and Company hereby agree as follows:\n1. This Agreement will be effective on , 2004.\n2. Executive hereby assigns to Company all rights or interests that Executive may presently have or which may be acquired during the term of\nExecutive’s employment with the Company, in Company “Proprietary Information” as defined below in Section 5, and acknowledges that all such\nProprietary Information is the sole property of Company and its assigns.\n3. Subject to the provisions of Section 7 hereof, in the event that, during the term of Executive’s employment with the Company, Executive\ncreates or assists in the creation of any Company “Proprietary Information,” or any other Company intellectual property, and/or Executive prepares,\naccumulates or otherwise comes into possession of any materials or information during the course of performance of Executive’s duties which relate\nin any manner to Company’s business or development of services, Executive agrees that all such “Proprietary Information” and intellectual property\nshall be and remain the property of Company. In the event Executive’s employment with Company is terminated, for any reason, Executive shall\npromptly deliver to Company all such “Proprietary Information” and intellectual property (and any copies thereof), as well as any materials related\nto Company’s trade secrets or confidential information (and any copies thereof), which are within Executive’s custody or control.\n4. Executive agrees to disclose to Company all “Proprietary Information” and intellectual property developed during the term of his\nemployment, whether made solely or jointly with others, which relate to Company’s business, research, or development of products and services.\n5. During the term of Executive’s employment with Company and thereafter, Executive will not offer or disclose by any means, or use in any\nmanner, for Executive’s own benefit or the benefit of any other person or entity (other than Company or its affiliates), any Company “Proprietary\nInformation” or Company intellectual property. As used herein, the terms “Proprietary Information,” “intellectual property” and “trade secrets,” shall\ninclude, but not be limited to: (a) all information of any kind regarding Company’s business, research, marketing, sales, operations and products and\nplans for development of new business products and services; (b) all operational designs and techniques related to business, marketing and financial\ninformation or data of any kind related to Company’s business and business opportunities; (c) all\nEXHIBIT B\n1-\ninformation of any kind regarding Company’s suppliers, vendors, consultants, agents and customers, including lists or compilations of any such\npersons or entities; (d) all information of any kind regarding Company’s officers, directors and shareholders (other than Executive), including their\nrespective abilities, functions, conduct or pay; (e) all proprietary information of any kind received or developed under agreement or other\narrangement by Company with any third party; and (f) all unpublished materials received or developed, including all works of authorship, which\nrelate to the business of Company, including but not limited to those concerning proprietary, trade secret or Company-private information,\ninvestment strategies, development plans, research and development data, and any other technical reports relating to Company’s business operations\nnow existing or which may be developed during the term of Executive’s employment with Company.\n6. Executive understands and agrees that a breach of the provisions contained herein could cause significant and irreparable harm to Company\nthat could not be satisfactorily compensated in monetary terms. Accordingly, and without in any way limiting Company from taking any other legal\naction to which it may be entitled to under law or in equity, in the event of any such breach or threatened breach, Company will be entitled to\ninjunctive relief including the immediate ex parte issuance, without bond, of a temporary restraining order against any such breach of threatened\nbreach.\n7. This Agreement shall not apply to: (a) any invention developed by Executive which qualifies under the provisions of California Labor Code,\nSection 2870; (b) any information which is or becomes publicly available, unless it becomes such as a result of a breach of this Agreement; (c) any\ninformation which Company subsequently discloses to any other person or entity without restriction; or (d) disclosure required by law or legal\nprocess; provided, that if Executive receives actual notice that the Executive is or may be required by law or legal process to disclose any such\ninformation, Executive shall promptly so notify Company, but in any event no more than five (5) days after the receipt of such notice.\n \n8. No amendment or modification to this Agreement shall be valid unless in writing signed by Executive and an authorized officer of\nCompany.\n9. The execution of this Agreement shall not be construed in any manner to alter Executive’s employment with Company as provided in his\nEmployment Agreement.\n10. The waiver by any party of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent\nbreach thereof or as a waiver of any other provisions of this Agreement. The remedies set forth herein are nonexclusive and are in addition to any\nother remedies that any party may have at law or in equity.\n11. If any legal action, arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute,\nbreach or default in connection with any of the provisions of this Agreement, the prevailing party shall be entitled to recover attorneys’ fees and\ncosts as set forth in the Employment Agreement.\nEXHIBIT B\n-\n12. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered\nor certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive: at the Executive’s most recent address on the records of the Company,\nIf to the Company:\nc/o Sunstone Hotel Investors, Inc.\n903 Calle America, Suite 100\nSan Clemente, CA 92673\nAttn: Corporate Secretary\nwith a copy to:\nAllen Matkins Leck Gamble & Mallory LLP\n515 South Figueroa Street\nSeventh Floor\nLos Angeles, CA 90071-3398\nAttn: Michael F. Sfregola\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n13. This Agreement is entered into and shall be governed and interpreted in accordance with the laws of the State of California, without regard\nto or application of choice of law rules or principles. It shall be binding upon and inure to the benefit of the parties, and to their respective heirs,\npersonal representatives, successors and assigns. In the event that any provision of this Agreement is found by a court, arbitrator or other tribunal to\nillegal, invalid or unenforceable, then the remaining provisions of this Agreement shall not be voided, but shall be enforced to the maximum extent\npermissible by law.\nEXHIBIT B\n_3-\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. “EXECUTIVE”\nGary A. Stougaard\nSUNSTONE HOTEL INVESTORS, INC,,\na Maryland corporation\nBy:\nName:\nIts:\nSUNSTONE HOTEL PARTNERSHIP, LLC,\na Delaware limited liability company\nBy: Sunstone Hotel Investors, Inc.\nIts: Managing Member\nBy:\nName:\nIts:\nEXHIBIT B 4-	EXHIBIT B\nTO EMPLOYMENT AGREEMENT\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement ("Agreement") is made as of this day of 2004 by and among Sunstone Hotel Investors, Inc.,\na Maryland corporation ("Sunstone"), and Sunstone Hotel Partnership, LLC, a Delaware limited liability company ("Operating Partnership")\n(Sunstone and the Operating Partnership collectively, the "Company"), and Gary A. Stougaard ("Executive").\nFor good and valuable consideration, Executive and Company hereby agree as follows:\n1. This Agreement will be effective on\n2004.\n2. Executive hereby assigns to Company all rights or interests that Executive may presently have or which may be acquired during the term of\nExecutive's employment with the Company, in Company "Proprietary Information" as defined below in Section 5, and acknowledges that all such\nProprietary Information is the sole property of Company and its assigns.\n3. Subject to the provisions of Section 7 hereof, in the event that, during the term of Executive's employment with the Company, Executive\ncreates or assists in the creation of any Company "Proprietary Information," or any other Company intellectual property, and/or Executive prepares,\naccumulates or otherwise comes into possession of any materials or information during the course of performance of Executive's duties which relate\nin any manner to Company's business or development of services, Executive agrees that all such "Proprietary Information" and intellectual property\nshall be and remain the property of Company. In the event Executive's employment with Company is terminated, for any reason, Executive shall\npromptly deliver to Company all such "Proprietary Information" and intellectual property (and any copies thereof), as well as any materials related\nto Company's trade secrets or confidential information (and any copies thereof), which are within Executive's custody or control.\n4. Executive agrees to disclose to Company all "Proprietary Information" and intellectual property developed during the term of his\nemployment, whether made solely or jointly with others, which relate to Company's business, research, or development of products and services.\n5. During the term of Executive's employment with Company and thereafter, Executive will not offer or disclose by any means, or use in any\nmanner, for Executive's own benefit or the benefit of any other person or entity (other than Company or its affiliates), any Company "Proprietary\nInformation" or Company intellectual property. As used herein, the terms "Proprietary Information," "intellectual property" and "trade secrets," shall\ninclude, but not be limited to: (a) all information of any kind regarding Company's business, research, marketing, sales, operations and products and\nplans for development of new business products and services; (b) all operational designs and techniques related to business, marketing and financial\ninformation or data of any kind related to Company's business and business opportunities; (c) all\nEXHIBIT B\n-1-\ninformation of any kind regarding Company's suppliers, vendors, consultants, agents and customers, including lists or compilations of any such\npersons or entities; (d) all information of any kind regarding Company's officers, directors and shareholders (other than Executive), including their\nrespective abilities, functions, conduct or pay; (e) all proprietary information of any kind received or developed under agreement or other\narrangement by Company with any third party; and (f) all unpublished materials received or developed, including all works of authorship, which\nrelate to the business of Company, including but not limited to those concerning proprietary, trade secret or Company-private information,\ninvestment strategies, development plans, research and development data, and any other technical reports relating to Company's business operations\nnow existing or which may be developed during the term of Executive's employment with Company.\n6. Executive understands and agrees that a breach of the provisions contained herein could cause significant and irreparable harm to Company\nthat could not be satisfactorily compensated in monetary terms. Accordingly, and without in any way limiting Company from taking any other legal\naction to which it may be entitled to under law or in equity, in the event of any such breach or threatened breach, Company will be entitled to\ninjunctive relief including the immediate ex parte issuance, without bond, of a temporary restraining order against any such breach of threatened\nbreach.\n7. This Agreement shall not apply to: (a) any invention developed by Executive which qualifies under the provisions of California Labor Code,\nSection 2870; (b) any information which is or becomes publicly available, unless it becomes such as a result of a breach of this Agreement; (c) any\ninformation which Company subsequently discloses to any other person or entity without restriction; or (d) disclosure required by law or legal\nprocess; provided, that if Executive receives actual notice that the Executive is or may be required by law or legal process to disclose any such\ninformation, Executive shall promptly so notify Company, but in any event no more than five (5) days after the receipt of such notice.\n8. No amendment or modification to this Agreement shall be valid unless in writing signed by Executive and an authorized officer of\nCompany.\n9. The execution of this Agreement shall not be construed in any manner to alter Executive's employment with Company as provided in his\nEmployment Agreement.\n10. The waiver by any party of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent\nbreach thereof or as a waiver of any other provisions of this Agreement. The remedies set forth herein are nonexclusive and are in addition to any\nother remedies that any party may have at law or in equity.\n11. If any legal action, arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute,\nbreach or default in connection with any of the provisions of this Agreement, the prevailing party shall be entitled to recover attorneys' fees and\ncosts as set forth in the Employment Agreement.\nEXHIBIT B\n-2-\n12. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered\nor certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive: at the Executive's most recent address on the records of the Company,\nIf to the Company:\nc/o Sunstone Hotel Investors, Inc.\n903 Calle America, Suite 100\nSan Clemente, CA 92673\nAttn: Corporate Secretary\nwith a copy to:\nAllen Matkins Leck Gamble & Mallory LLP\n515 South Figueroa Street\nSeventh Floor\nLos Angeles, CA 90071-3398\nAttn: Michael F. Sfregola\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n13. This Agreement is entered into and shall be governed and interpreted in accordance with the laws of the State of California, without regard\nto\nor application of choice of law rules or principles. It shall be binding upon and inure to the benefit of the parties, and to their respective heirs,\npersonal representatives, successors and assigns. In the event that any provision of this Agreement is found by a court, arbitrator or other tribunal to\nillegal, invalid or unenforceable, then the remaining provisions of this Agreement shall not be voided, but shall be enforced to the maximum extent\npermissible by law.\nEXHIBIT B\n-3-\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.\n"EXECUTIVE"\nSUNSTONE HOTEL INVESTORS, INC.,\na Maryland corporation\nBy\nGary A. Stougaard\nName:\nIts:\nSUNSTONE HOTEL PARTNERSHIP, LLC,\na Delaware limited liability company\nBy:\nSunstone Hotel Investors, Inc.\nIts: Managing Member\nBy:\nName:\nIts:\nEXHIBIT B\n-4-	EXHIBIT B\nTO EMPLOYMENT AGREEMENT\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) is made as of this day of\n, 2004 by and among Sunstone Hotel Investors, Inc.,\na Maryland corporation (“Sunstone”), and Sunstone Hotel Partnership, LLC, a Delaware limited liability company (“Operating Partnership”)\n(Sunstone and the Operating Partnership collectively, the “Company”), and Gary A. Stougaard (“Executive”).\nFor good and valuable consideration, Executive and Company hereby agree as follows:\n1. This Agreement will be effective on\n, 2004.\n2. Executive hereby assigns to Company all rights or interests that Executive may presently have or which may be acquired during the term of\nExecutive’s employment with the Company, in Company “Proprietary Information” as defined below in Section 5, and acknowledges that all such\nProprietary Information is the sole property of Company and its assigns.\n3. Subject to the provisions of Section 7 hereof, in the event that, during the term of Executive’s employment with the Company, Executive\ncreates or assists in the creation of any Company “Proprietary Information,” or any other Company intellectual property, and/or Executive prepares,\naccumulates or otherwise comes into possession of any materials or information during the course of performance of Executive’s duties which relate\nin any manner to Company’s business or development of services, Executive agrees that all such “Proprietary Information” and intellectual property\nshall be and remain the property of Company. In the event Executive’s employment with Company is terminated, for any reason, Executive shall\npromptly deliver to Company all such “Proprietary Information” and intellectual property (and any copies thereof), as well as any materials related\nto Company’s trade secrets or confidential information (and any copies thereof), which are within Executive’s custody or control.\n4. Executive agrees to disclose to Company all “Proprietary Information” and intellectual property developed during the term of his\nemployment, whether made solely or jointly with others, which relate to Company’s business, research, or development of products and services.\n5. During the term of Executive’s employment with Company and thereafter, Executive will not offer or disclose by any means, or use in any\nmanner, for Executive’s own benefit or the benefit of any other person or entity (other than Company or its affiliates), any Company “Proprietary\nInformation” or Company intellectual property. As used herein, the terms “Proprietary Information,” “intellectual property” and “trade secrets,” shall\ninclude, but not be limited to: (a) all information of any kind regarding Company’s business, research, marketing, sales, operations and products and\nplans for development of new business products and services; (b) all operational designs and techniques related to business, marketing and financial\ninformation or data of any kind related to Company’s business and business opportunities; (c) all\nEXHIBIT B\n-1-\ninformation of any kind regarding Company’s suppliers, vendors, consultants, agents and customers, including lists or compilations of any such\npersons or entities; (d) all information of any kind regarding Company’s officers, directors and shareholders (other than Executive), including their\nrespective abilities, functions, conduct or pay; (e) all proprietary information of any kind received or developed under agreement or other\narrangement by Company with any third party; and (f) all unpublished materials received or developed, including all works of authorship, which\nrelate to the business of Company, including but not limited to those concerning proprietary, trade secret or Company-private information,\ninvestment strategies, development plans, research and development data, and any other technical reports relating to Company’s business operations\nnow existing or which may be developed during the term of Executive’s employment with Company.\n6. Executive understands and agrees that a breach of the provisions contained herein could cause significant and irreparable harm to Company\nthat could not be satisfactorily compensated in monetary terms. Accordingly, and without in any way limiting Company from taking any other legal\naction to which it may be entitled to under law or in equity, in the event of any such breach or threatened breach, Company will be entitled to\ninjunctive relief including the immediate ex parte issuance, without bond, of a temporary restraining order against any such breach of threatened\nbreach.\n7. This Agreement shall not apply to: (a) any invention developed by Executive which qualifies under the provisions of California Labor Code,\nSection 2870; (b) any information which is or becomes publicly available, unless it becomes such as a result of a breach of this Agreement; (c) any\ninformation which Company subsequently discloses to any other person or entity without restriction; or (d) disclosure required by law or legal\nprocess; provided, that if Executive receives actual notice that the Executive is or may be required by law or legal process to disclose any such\ninformation, Executive shall promptly so notify Company, but in any event no more than five (5) days after the receipt of such notice.\n8. No amendment or modification to this Agreement shall be valid unless in writing signed by Executive and an authorized officer of\nCompany.\n9. The execution of this Agreement shall not be construed in any manner to alter Executive’s employment with Company as provided in his\nEmployment Agreement.\n10. The waiver by any party of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent\nbreach thereof or as a waiver of any other provisions of this Agreement. The remedies set forth herein are nonexclusive and are in addition to any\nother remedies that any party may have at law or in equity.\n11. If any legal action, arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute,\nbreach or default in connection with any of the provisions of this Agreement, the prevailing party shall be entitled to recover attorneys’ fees and\ncosts as set forth in the Employment Agreement.\nEXHIBIT B\n-2-\n12. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered\nor certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive: at the Executive’s most recent address on the records of the Company,\nIf to the Company:\nc/o Sunstone Hotel Investors, Inc.\n903 Calle America, Suite 100\nSan Clemente, CA 92673\nAttn: Corporate Secretary\nwith a copy to:\nAllen Matkins Leck Gamble & Mallory LLP\n515 South Figueroa Street\nSeventh Floor\nLos Angeles, CA 90071-3398\nAttn: Michael F. Sfregola\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n13. This Agreement is entered into and shall be governed and interpreted in accordance with the laws of the State of California, without regard\nto or application of choice of law rules or principles. It shall be binding upon and inure to the benefit of the parties, and to their respective heirs,\npersonal representatives, successors and assigns. In the event that any provision of this Agreement is found by a court, arbitrator or other tribunal to\nillegal, invalid or unenforceable, then the remaining provisions of this Agreement shall not be voided, but shall be enforced to the maximum extent\npermissible by law.\nEXHIBIT B\n-3-\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.\n“EXECUTIVE”\nSUNSTONE HOTEL INVESTORS, INC.,\na Maryland corporation\nBy:\nGary A. Stougaard\nName:\nIts:\nSUNSTONE HOTEL PARTNERSHIP, LLC,\na Delaware limited liability company\nBy: Sunstone Hotel Investors, Inc.\nIts: Managing Member\nBy:\nName:\nIts:\nEXHIBIT B\n-4-
+0d937100a1b508979342c4469c2c6748.pdf	effective_date jurisdiction party term	EX-10.J 11 d276684dex10j.htm NON-COMPETE, NON-DISCLOSURE, NON-DISPARAGEMENT, RELEASE AND\nCONSULTING AGREEMENT\nExhibit 10.j\nNON-COMPETE, NON-DISCLOSURE, NON-DISPARAGEMENT, RELEASE AND\nCONSULTING AGREEMENT\nThis Agreement is dated as of January 1, 2012 and is between Donald J. DeMarie, Jr. (the “Consultant”) and Masco Corporation (a Delaware\ncorporation), with a business address of 21001 Van Born Road, Taylor, MI 48180 (the “Company”).\nWHEREAS, Consultant has been the Executive Vice President and Chief Operating Officer for the Company, and\nWHEREAS, Consultant has established close business relationships with executives and other employees of the Company’s suppliers of\nmaterials and services used in the manufacture or sale of the Company’s products and services; and\nWHEREAS, Consultant has also established close business relationships with executives and other employees of the Company’s customers,\nincluding retailers, builders, wholesalers, distributors, dealers; and\nWHEREAS, Consultant has also established close business relationships with executives and other employees of investors, lenders and\nadvisors of the Company (both actual and prospective); and\nWHEREAS, Consultant has gained detailed knowledge of the Company’s operations, processes, finances, products, services and business and\nlegal strategies; and\nWHEREAS, the Company desires that, effective November 4, 2011 the Consultant be removed from his office as Executive Vice President and\nChief Operating Officer of the Company and all other offices and directorships he holds for any of the Company’s subsidiaries and affiliates, and that\neffective January 1, 2012 he be terminated from his employment with the Company and thereafter provide the Company, its subsidiaries and\naffiliates, with consulting services through December 31, 2013, and from time to time thereafter, all on the terms and conditions provided herein, and\nWHEREAS, the Consultant has been given the opportunity to review this Agreement, and has been advised to consult and has consulted legal\ncounsel to ascertain whether the Consultant has any potential rights or remedies which by the Consultant’s execution of this Agreement are waived\nand released, and\nWHEREAS, the Consultant and the Company, without any admission of liability, desire to settle with finality, compromise, dispose of, and\nrelease any claims and demands of the Consultant which have been or could be asserted, whether arising out of the Consultant’s employment by or\ntermination from the Company or otherwise;\nNOW THEREFORE, the parties agree as follows:\n1. Termination of Employment and Separation Benefits. Effective January 1, 2012 (“Termination Date”), Consultant’s employment\nwith the Company shall be terminated.\n(a) In consideration for the Release given by the Consultant in Paragraph 12 hereof, the Company agrees (i) to pay the Consultant $1,130,010\nin 15 installments of $75,334 each on or about the first of each of the months January, 2012 through March, 2013; to pay Consultant $499,995 in\nnine installments of $55,555 each on or about the first of each of the months April, 2013 through December, 2013; (iii) to pay the Consultant the sum\nof $16,200 as reimbursement for 18 months of COBRA health coverage, in monthly payments of $900 each during the initial 18 months following\nthe Termination Date; and (iv) to provide the Consultant outplacement services through a vendor selected by Consultant and paid by the Company;\nprovided, that the cost of such outplacement services will not exceed $50,000, which services shall be rendered, and payment therefor made, on or\nbefore December 31, 2013.\n(b) the Company agrees to pay the Consultant (i) an amount equal to any FY 2011 bonus he would have received as a continuing employee, at\nor about the same time as such bonuses may be paid to other Company and (ii)an amount equal to the fully vested value of any FY 2011\nperformance restricted stock award he would have received as a continuing employee, at or about the same time such awards may be granted to other\nCompany executives, in each such case on or before December 31, 2012.\n(c) the Consultant recognizes that the consideration to be provided pursuant to Paragraphs 1(a) and 1(b) is in each case stated as a gross\namount before applicable payroll tax withholding, and is in excess of any earned wages or benefits due and owing the Consultant by virtue of his\nemployment with the Company or otherwise.\n(d) Consultant agrees that he shall faithfully and continuously make himself available as an employee to render whatever services may be\nrequired of him by the Company at all times up to and including the Termination Date.\n(e) Consultant shall be paid for his four weeks’ 2012 vacation eligibility in cash promptly following the Termination Date.\n(f) The Consultant will be eligible, based on his being employed as of December 31, 2011, for a contribution (if declared generally by the\nCompany’s Compensation Committee) to the Company’s Future Service Profit Sharing Plan and the Benefits Restoration Plan based on those plans’\nprovisions.\n2. Duties During and After the Consulting Period.\n(a) During the Consulting Period (as hereinafter defined), the Consultant shall perform and discharge well and faithfully consulting services as\nmay be assigned to Consultant from time to time by the Company’s President and Chief Executive Officer, or any other officer or executive of\nMasco Corporation with oversight responsibility for the Company, or such other person as the President and Chief Executive Officer might designate\nin writing. Such services may include, but not be limited to:\n2\n(i) provision of information concerning the Consultant’s past activities or areas of experience or expertise;\n(ii) participation in phone calls or in meetings with representatives or attorneys of the Company or any of its subsidiaries or\nwith customers, vendors, or suppliers to the Company or any of its subsidiaries;\n(iii) the preparation of marketing studies or studies on competitive trends for the products or services sold by the Company or\nany of its subsidiaries;\n(iv) prompt assistance to, and full cooperation with, the Company in any Company investigation, or with respect to any\ndispute, or any administrative, regulatory or legal proceedings; and\n(v) active and completely focused participation in litigation as a trial witness, deponent, declarant or source of information,\nwithout requiring service of subpoena or other legal process, and when desired, in the Company’s sole discretion, by providing\nimmediate response to requests for assistance.\nAll such services shall be provided promptly and completely and shall involve the full cooperation and best efforts of the Consultant in order\nto meet the goals and direction of the Company, as such may be determined in the Company’s sole discretion. Such services are being significantly\ncompensated, and Consultant acknowledges that such efforts may require substantial time on an as-needed basis. In no event will the Consultant’s\nduties require the relocation of the Consultant from the Consultant’s then-current residence.\n(b) During the pendency of any litigation or other proceeding involving the Company, Consultant shall not communicate with anyone (other\nthan Consultant’s and Company’s attorneys) with respect to any facts relating to, or the subject matter of, any pending or potential litigation or\nregulatory or administrative proceeding involving the Company or any of its subsidiaries, except as directed by the Company or as required by\ncompulsory process or court order. Consultant acknowledges that the Company’s litigation strategies, and the Company’s and its subsidiaries’\nbusiness strategies and conduct which may be the subject of litigation, are highly confidential. In the event of such compulsory process or Court\norder, Consultant shall immediate notify the Company thereof and fully cooperate with the Company in any response thereto and related actions.\n(c) It is agreed that the Consultant shall be an independent contractor and shall not be the employee, servant, agent, partner or joint venturer of\nthe Company, or any of its officers, directors or employees. The Consultant has no authority to assume or create any obligation or liability, express or\nimplied, on behalf of the Company, or in the name of the Company or to bind the Company in any manner whatsoever.\n3\n(d) The Consultant shall devote such time, attention and energies to such services for the Company as the Company shall direct. The\nConsultant acknowledges that time is of the essence in the performance of such services, and Consultant’s failure to promptly, fully and completely\nprovide such services within the time desired by the Company shall constitute a material breach of this Agreement. The consulting services provided\nhereunder shall not exceed in any year twenty percent (20%) of the time the Consultant spent during 2011 while an employee of the Company.\n(e) Consultant shall make it clear to any prospective future employer, client, joint venturer or other recipient of his future services that\nConsultant has all of the foregoing obligations under this Agreement, and that any future provision of his services is subject to his fulfillment of such\nobligations.\n(f) Following the Consulting Period, Consultant will make himself available to the Company from time to time for additional consulting; in\nthis regard, both the Company and the Consultant will undertake their best efforts to assure that the Consultant will be able to perform such\nconsultancy as reasonably needed by the Company in a manner consistent with any other employment obligations possessed at that time by the\nConsultant as mutually agreed upon under a separate consulting relationship between the parties in the future. The parties expect that such consulting\nshall be limited in duration and may involve matters arising in the course of litigation either at trial or from appellate decisions.\n3. Term of Consulting Relationship. The consulting relationship under Paragraph 2 of this Agreement shall be for a period (the\n“Consulting Period”) commencing January 1, 2012, and ending December 31, 2013, unless sooner terminated by written notice of termination from\nthe Company in the event that (i) the Consultant has been convicted of or pled guilty or nolo contendere to a crime involving moral turpitude or a\ncrime providing for a term of imprisonment; or (ii) current alcohol or other substance abuse on the part of the Consultant (whether or not constituting\na crime, or the Consultant’s willful misconduct); or (iii) the Consultant’s failure to follow the instructions of the President and Chief Executive\nOfficer of the Company, or other officers or executives of the Company, or the Consultant’s neglect of duties, but in each such case only following\nwritten notice thereof; or (iv) the Consultant has breached any other obligation under this Agreement, the Stock Plans, the Awards, the Letter or the\nPlan (as hereinafter defined). If the Consulting Period is terminated for any of the reasons set forth in the preceding sentence, the rights of the\nConsultant under Paragraphs 1(a) and 1(b) and to the fees set forth in Paragraph 4 hereof shall cease on the date of such termination (and are subject\nto recovery by the Company as provided in paragraph 3(vi) of the Letter), and the Company shall have no further obligation to the Consultant under\nany of the provisions of this Agreement or the other referenced agreements. Termination shall not, however, affect the provisions of Paragraphs 5\nthrough 13 or 17 through 20, each of which shall survive any termination in accordance with their terms. Consultant’s termination of this Agreement\nwithout cause shall\n4\nconstitute a material breach of this Agreement. If the Consulting Period is terminated by reason of the Consultant’s death, to the extent then not paid\nto the Consultant, the payments under Paragraphs 1(a) and 1(b) and the fees set forth in Paragraph 4(a)(i) hereof shall be made to the Consultant’s\nestate. Survivor rights with respect to the fees described in Paragraph 4(a)(ii) shall be as determined under applicable beneficiary and other\nprovisions embodied in the Stock Plans and Awards as modified by the Letter.\n4. Consulting Period Compensation.\n(a) In full satisfaction for any and all services rendered by the Consultant hereunder, (i) during the period beginning January 1, 2012 and\nending December 31, 2013 the Consultant will be paid, on a monthly basis, a consulting fee in the gross amount of $2084.00 in consecutive monthly\ninstallments on or about the 15th of each month with respect to the immediately preceding month and (ii) the Consultant’s rights and obligations\nunder provisions of the Masco Corporation 1991 and 2005 Long Term Stock Incentive Plans (“Stock Plans”) and the Awards of restricted stock\nmade in letters previously issued to the Consultant pursuant to the Stock Plans (collectively, “Awards”) shall continue vesting following the\nTermination Date only in accordance with the provisions of the Stock Plans and Awards and that certain letter agreement between the Consultant and\nthe Company of even date herewith (“Letter”). Following the Consulting Period, for any consulting services rendered to the Company from time to\ntime, the Consultant shall be paid at a rate as agreed by the parties which shall be commensurate with the Consultant’s cash compensation as in effect\nduring 2011 as mutually agreed upon under a separate consulting relationship between the parties in the future.\n(b) The payments and extended stock vesting set forth in Paragraph 4(a)(i) and (ii) are given in consideration of both the Consultant’s services\nand the Consultant’s immediate on-call availability to perform such services when requested. In addition to such fees, the Company agrees to\nreimburse the Consultant for travel and reasonable living expenses away from the Consultant’s residence directly incurred by the Consultant at the\nCompany’s request in performing such services for the Company or as approved by the Company in advance. The Consultant agrees to keep\naccurate expense records in the form requested by the Company and to provide the Company with such records upon request.\n(c) Other than benefits accrued under the Company’s benefit plans through the Termination Date, and pursuant to that certain Supplemental\nExecutive Retirement Plan as described in the letter agreement dated July 1, 2006 as amended (the “Plan”), the Consultant shall not receive any\nother compensation from the Company nor shall he participate in or receive benefits under any of the Company’s employee fringe benefit programs\nor receive any other fringe benefits from the Company on account of services hereunder (including without limitation health, disability, life\ninsurance, retirement, pension and profit sharing benefits).\n5. Disclosure of Information. The Consultant acknowledges that the Company’s and its subsidiaries’ trade secrets, private or secret\nprocesses as they exist from time to time, and information concerning products, developments, manufacturing techniques, new\n5\nproduct plans, equipment, inventions, discoveries, patent applications, ideas, designs, engineering drawings, sketches, renderings, other drawings,\nmanufacturing and test data, computer programs, progress reports, materials, costs, specifications, processes, methods, research, procurement and\nsales activities and procedures, Company business strategies, litigation or legal strategies, promotion or pricing techniques or credit or financial data\nconcerning customers of the Company or its subsidiaries as well as information relating to the management, operation or planning of the Company\nor its subsidiaries which, in each such case, has not been made public (or, if made public, such disclosure must not have been made by the\nConsultant) (the “Proprietary Information”) are valuable, special and unique assets of the Company and its subsidiaries. In light of the highly\ncompetitive nature of the industries in which the Company and its subsidiaries conduct their businesses, the Consultant agrees that all Proprietary\nInformation heretofore or in the future obtained by the Consultant as a result of the Consultant’s relationship with the Company and its subsidiaries\nshall be considered confidential. In recognition of this fact, the Consultant agrees that he will, during and after the Consulting Period, keep the\nProprietary Information strictly confidential, will not disclose any of such Proprietary Information to any person or entity for any reason or purpose\nwhatsoever (except as directed by the Company), and he will not make use of any Proprietary Information for his own purposes or for the benefit of\nany other person or entity (except the Company and its subsidiaries) under any circumstances.\n6. Non-Competition. In order to protect the Company and its subsidiaries from the Consultant’s competitive use of the substantial\nProprietary Information and goodwill gained by the Consultant in his employment and consulting relationships with the Company and its\nsubsidiaries, the Consultant agrees that during the Consulting Period Consultant shall not, directly or indirectly:\n(a) Engage in or assist in the design, development, evaluation, planning, manufacture, sale, or marketing of any products,\ntechnologies, or services that compete with or could displace those designed, sold, manufactured, designed, evaluated, marketed,\nplanned or developed by the Company (whether solely or in conjunction with other subsidiaries of the Company or their\nemployees) at any time during the Consultant’s employment with the Company or any subsidiary or consultation with the\nCompany (the ‘Business Activities’), whether such engagement is as an officer, director, proprietor, employee, partner, investor\n(other than as a holder of less than 1% of the outstanding capital stock of a publicly traded corporation), consultant, advisor, agent\nor otherwise in any geographic areas in which the products, technologies, or services of the Company or any of its subsidiaries,\nare at that time distributed or planned to be distributed. Business Activities, include, but are not limited to, the design,\ndevelopment, evaluation, manufacture, sale, planning and marketing of plumbing products, installation of insulation, windows,\nwindow frames, paint, cabinets, tub and shower enclosures, hardware, other building and home products or services, and all other\nproducts, technologies and services offered or sold by the Company or any of its subsidiaries;\n6\n(b) Be engaged (other than on behalf of the Company) whether as an officer, director, proprietor, employee, partner, investor (other\nthan as a holder of less than 1% of the outstanding capital stock of a publicly traded corporation), consultant, advisor, agent or\notherwise, (i) as a supplier to any customer with whom the Company or any of its subsidiaries has done business during\nConsultant’s employment or consultation with the Company or any of its subsidiaries; or (ii) on behalf of any customer of, or\nsupplier to, the Company or any of its subsidiaries, with whom the Company or any of its subsidiaries has done business during\nConsultant’s employment or consultation with the Company or any of its subsidiaries;\n(c) Assist others in engaging in any of the Business Activities in the manner prohibited to the Consultant; or\n(d) Induce employees of the Company or any of its subsidiaries to engage in any activities that are prohibited to the Consultant.\nIn addition, during the Consulting Period and for a two-year period following the Consulting Period, the Consultant shall not, directly or\nindirectly:\n(e) Knowingly induce employees of the Company or any of its subsidiaries to terminate their employment.\nIt is expressly understood and agreed that although the Consultant and the Company consider the restrictions contained in each of clauses (a) through\n(e) above reasonable for the purpose of preserving for the Company and its subsidiaries their good will, trade secrets, proprietary rights and ongoing\nbusiness value, if a final judicial determination is made by a court having jurisdiction that the time and territory or any other restriction contained in\nthis Paragraph is an unenforceable restriction on the activities of the Consultant, the provisions of this Paragraph shall not be rendered void but shall\nbe deemed amended to apply as to such maximum time, territory and activities as such court may judicially determine or indicate to be reasonable.\n7. Remedies.\n(a) The Consultant acknowledges and agrees that the Company’s remedy at law for a breach or threatened breach of any of the provisions of\nParagraphs 5 or 6 of this Agreement would be inadequate and, in recognition of this fact, in the event of a breach by the Consultant of any of the\nprovisions of Paragraphs 5 or 6 of this Agreement, the Consultant agrees that, in addition to the Company’s other remedies at law, at the Company’s\noption, all rights of the Consultant under this Agreement, the Stock Plans, the Awards, the Letter and the Plan may be terminated, and the Company\nshall be entitled without posting any bond to obtain, and the Consultant agrees not to oppose (except to the extent that Consultant maintains that he\ndid not, in fact, engage in any activity in breach of this Agreement) a request for, equitable relief in the form of specific performance, temporary\nrestraining order, temporary or permanent injunction or any other equitable remedy which may then be available, relating to the conduct prohibited\n7\nunder either paragraphs 5 or 6 hereof. The Consultant acknowledges that the granting of a temporary injunction, temporary restraining order or\npermanent injunction merely prohibiting the use of Proprietary Information would not be an adequate remedy upon breach or threatened breach\nhereof. Nothing herein contained shall be construed as prohibiting the Company from pursuing, in addition, any other remedies available to it for\nsuch (or any other) breach or threatened breach.\n(b) In addition to the remedies set forth herein or available to the Company, if Consultant, in Company’s good faith judgment, reasonably\nexercised, at any time during the Consulting Period (and, with respect to breaches of Paragraph 6(e) at any time during the Consulting Period and\ntwo-year period following the Consulting Period), breaches any obligation under this Agreement, the Stock Plans, the Awards, the Letter or the Plan,\nthe Company may immediately terminate any remaining payments and the provision of any other benefits which might otherwise be required this\nAgreement, the Stock Plans, the Awards, the Letter or the Plan, or otherwise due Consultant. Upon any breach, the Company may also recover from\nthe Consultant any payments made under Paragraphs 1(a) and 1(b) hereof (except for the payments described in 1(a)(iii) and 1(a)(iv)), together with\nany proceeds from exercise of any Options or sale of Restricted Stock for which restrictions have lapsed at any time within two years following the\nTermination Date, in each case (cash and stock) net of any state and federal income taxes paid by Consultant. The Company may also recover all\ncost and expenses incurred in any efforts to enforce its rights under this Agreement. The Company shall have the right to set off any amount owed to\nConsultant against any amount owed by Consultant hereunder.\n8. Notices. Any notice required or permitted to be given under this Agreement shall be deemed properly given if in writing and delivered\nby hand and receipt is acknowledged by the party to whom said notice shall be directed, or if mailed by certified or registered mail, postage prepaid\nwith return receipt requested, or sent by express courier service, charges prepaid by shipper, to the addresses of each party stated above and, in the\ncase of notices to the Company, to the attention of its General Counsel at Masco Corporation, 21001 Van Born Road, Taylor, Michigan 48180 (or to\nsuch other address as a party is directed pursuant to written notice from the other party).\n9. Assignment. This Agreement shall not be assignable by either party except by the Company to any subsidiary or affiliate of the\nCompany or to any successor in interest to the Company’s business, and shall be binding upon the Company in the case of any change in control or\nalternate change in control as defined in the Plan.\n10. Entire Agreement. This instrument and the Stock Plans, the Awards, the Letter and the Plan contain the entire agreements of the\nparties relating to the subject of consulting and termination of Consultant’s employment, supersede and replace in their entirety any existing\nemployment agreement or consulting agreement of the Consultant and may not be waived, changed, modified, extended or discharged orally but\nonly by agreement in writing signed by the party against whom enforcement of any such waiver, change, modification, extension or discharge is\nsought. The waiver by the Company of a breach of any provision of this Agreement by the Consultant shall not operate or be construed as a waiver\nof a breach of any other provision or of any subsequent breach by the Consultant.\n8\n11. No Disparagement. Each of the parties agrees not to criticize, disparage or otherwise demean in any way the other or Company’s\naffiliates or their respective products, services, technologies, officers, directors or employees.\n12. RELEASE .\n(a) In consideration of the payments to be made and the agreements and consideration provided by the Company hereunder and the\ncovenants contained in the Letter, Consultant, on Consultant’s own behalf and on behalf of Consultant’s heirs, executors, agents, successors\nand assigns, releases and forever discharges the Company, its subsidiaries and affiliates and their respective officers, agents, current and\nformer employees, successors, predecessors and assigns and any other person, firm, corporation or legal entity in any way related to the\nCompany or its subsidiaries and affiliates (the “Released Parties”), of and from all claims, demands, actions, causes of action, statutory\nrights, duties, debts, sums of money, suits, reckonings, contracts, agreements, controversies, promises, damages, obligations, responsibilities,\nliabilities and accounts of whatsoever kind, nature or description, direct or indirect, in law or in equity, in contract or in tort or otherwise,\nwhich Consultant ever had or which Consultant now has or hereafter can, shall or may have, against any of the Released Parties, for or by\nreason of any matter, cause, or thing whatsoever up to the present time, whether known or unknown, suspected or unsuspected at the\npresent time, or which may be based upon pre-existing acts, claims or events occurring at any time up to the date hereof which may result in\nfuture damages, including without limitation all direct or indirect claims either for direct or consequential damages of any kind whatsoever\nand rights or claims arising under Title VII, any state civil-rights legislation, claims of handicap discrimination, claims relating to the\ntermination of employment as referred to herein, and claims of age discrimination under the Age Discrimination in Employment Act of\n1967, as amended (ADEA), against any of the Released Parties, other than (a) claims arising under the express provisions of this Agreement,\n(b) the right to receive benefits accrued through the end of the employment period under the Company’s benefit plans and (c) claims arising\nunder any applicable worker’s compensation statute. It is the intention of the parties that this general release by the Consultant will be\nconstrued as broadly as possible.\n(b) Consultant has: (i) the sole right, title, and interest to the claims released under this Agreement, (ii) neither assigned or transferred, nor\npurported to assign or transfer, to any person or entity, any claim released by this Agreement, and (iii) neither assigned or transferred, nor purported\nto assign or transfer, to any person or entity, the right to the monies, in whole or in part, being paid pursuant to this Agreement.\n9\n13. Non-Disclosure. Other than to the extent required to perform consulting services hereunder, or as required by applicable securities\nlaws, until such time as this Agreement becomes publicly disclosed by the Company in its required securities filings or otherwise, Consultant shall\nnot disclose the fact of this Agreement or any of its terms to any third parties other than to Consultant’s ex-spouse, tax and financial advisors, banks,\ncreditors, attorneys, significant other and children, each of whom, in turn shall be bound by this paragraph not to further disclose this Agreement.\nConsultant agrees that any violation of this confidentiality provision will result in substantial and irreparable injury to Company. In the event of such\na violation, in addition to the Company’s right to terminate any further payment or benefits as permitted under Paragraph 7, Consultant will also be\nliable to Company for such economic damages and equitable relief as a Court may deem appropriate.\n14. Execution and Revocation. (a) This Agreement was first communicated to Consultant on November 5, 2011. Consultant is not\nrequired to, but may, accept this Agreement by signing and dating this Agreement on or before December 6, 2011 which is in excess of twenty-one\n(21) days from the date this Agreement was first communicated to Consultant.\n(b) Consultant understands that this Agreement may be revoked by him for a period of seven (7) calendar days following his execution of this\nAgreement. The Agreement is not effective until this revocation period has expired. Consultant understands that any revocation to be effective must\nbe in writing and either postmarked within seven (7) days of the execution of this Agreement and addressed to Chuck Greenwood, Vice President—\nHuman Resources, Masco Corporation, 21001 Van Born Road, Taylor, Michigan 48180 or hand delivered within seven (7) days to Chuck\nGreenwood at the address listed above. If revocation is by mail, certified mail, return receipt requested is required to show proof of mailing.\n15. No Payment. No payments or benefits under this Agreement shall be made to Consultant until the seven (7) day revocation period\nhas expired. If Consultant does not revoke this Agreement within the seven (7) day revocation period, then this Agreement shall become binding on\nthe Company and Consultant as otherwise provided herein, and the payments and benefits provided in Paragraph 1 will commence.\n16. Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid\nunder applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or\nrule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement\nwill be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained in this\nAgreement, while giving maximum effort to the intent of the parties as reflected in this Agreement.\n10\n17. Arbitration. The parties hereto agree that arbitration will be the sole and exclusive remedy for any claims which may arise between\nthe parties (other than requests by the Company for immediate or preliminary injunctive relief) in any way relating to this Agreement or for the\nbreach thereof. All such claims shall be submitted to arbitration in accordance with the applicable arbitration rules of the American Arbitration\nAssociation (“AAA”), except as those rules conflict with applicable Delaware law. The award issued by the arbitrator shall be final and binding on\nthe parties, and judgment on the award may be entered in any court of competent jurisdiction. The fees and costs of the arbitrator and the arbitration\nand administrative fees shall be borne equally by the parties. Each party understands and agrees that this arbitration provision constitutes a waiver of\ntheir respective rights to adjudicate all claims in court and before a jury, and the parties are instead opting to arbitrate any such claims. All arbitration\nproceedings will be conducted in the Detroit metropolitan area. This arbitration provision explicitly replaces and supersedes any prior agreements\nbetween the parties concerning mediation or any other alternate dispute resolution.\n18. Headings and Construction. The headings of the Paragraphs are for convenience only and shall not control or affect the meaning or\nconstruction or limit the scope or intent of any of the provisions of this Agreement. The terms “and” and “or” herein shall each be interpreted to\ninclude the other, i.e. “and/or.”\n19. Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement. A facsimile signature, whether by fax or other electronic form, shall be deemed an original\nand shall bind the signing Party\n20. Governing Law. All questions concerning the construction, validity and interpretation of this Agreement will be governed by and\nconstrued in accordance with the domestic laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or\nrule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State\nof Delaware. It is the intent of the parties that the provisions of this Agreement shall be interpreted to be consistent with provisions of Section 409A\nof the Internal Revenue Code.\n11\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.\nMASCO CORPORATION\nBy: /s/ Timothy Wadhams\nIts: President and CEO\n/s/ Donald J. DeMarie, Jr.\nConsultant\nDated: December 6, 2011.\n12\nLOGO\nJanuary 1, 2012\nMr. Donald J. DeMarie\n21001 Van Born Road\nTaylor, Michigan 48180\nDear Mr. DeMarie:\nUnder a Release and Consulting Agreement of even date herewith (the “Agreement”), you and Masco Corporation (“Company” or “Masco”)\nhave agreed to a termination of your employment with Masco on January 1, 2012 and the commencement of a consulting relationship running from\nJanuary 1, 2012 through December 31, 2013 (the “Consulting Period”). In connection with that change in your employment relationship, this letter\nsets forth a modification to letters from Masco for Awards of restricted stock (“Grants”) made prior to the date hereof for Masco’s common stock\npursuant to Masco’s 1991 and 2005 Long Term Stock Incentive Plans (“Stock Plans”). Terms which are capitalized herein and not otherwise defined,\nhave their meaning as defined in the Agreement.\n1) The letters making Options on and after February 16, 2000 in each case included an Appendix with the following language (for Options\nmade after December, 2008 the following language is included in the computerized text captioned “Terms and Conditions”) (the “Clawback”):\nIf your employment with the Company [i.e., Masco] or any of its subsidiaries is terminated for any reason, other than death,\npermanent and total disability, retirement on or after normal retirement date or the sale or other disposition of the business or subsidiary\nemploying you, and other than termination of employment in connection with a Change in Control, and if any installments of the Option\nor any restoration options granted upon any exercise of the Option became exercisable within the two year period prior to the date of\nsuch termination (such installments and restoration options being referred to as the “Subject Options”), by accepting the Option you\nagree that the following provisions will apply:\n21001 VAN BORN ROAD\nTAYLOR, MICHIGAN 48180\n313-274-7400\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 2\n(1) Upon the demand of the Company you will pay to the Company in cash within 30 days after the date of such termination the\namount of income realized for income tax purposes from the exercise of any Subject Options, net of all federal, state and other\ntaxes payable on the amount of such income, plus all costs and expenses of the Company in any effort to enforce its rights\nhereunder; and\n(2) Any right you would otherwise have, pursuant to the terms of the Stock Plan and this Agreement, to exercise any Subject\nOptions on or after the date of such termination, shall be extinguished as of the date of such termination.\n2) Such letters granting Options and those letters making Grants on and after July 5, 2000 also included the following language in which you\nagreed not to become associated in any Prohibited Capacity in certain Business Activities (the “Non-Compete”) and (in the second of the two\nparagraphs) requiring you to repay certain amounts to the Company if you breach or challenge such obligations (the “Recapture”). (For brevity,\nparagraphs from the Option Appendices (contained in “Terms and Conditions” in post-2008 Options) follow; paragraphs from the Grant Appendices\n(contained in “Terms and Conditions” in post-2008 Grants) are substantially identical except with appropriately changed reference to Grants rather\nthan Options, and are hereby incorporated by reference as if set forth herein):\nIn addition you agree, in consideration for the grant of the Option and regardless of whether the Option becomes exercisable or is\nexercised, while you are employed or retained as a consultant by the Company or any of its subsidiaries and for a period of one year following\nany termination of your employment and, if applicable, any consulting relationship with the Company or any of its subsidiaries other than a\ntermination in connection with a Change in Control, not to engage in, and not to become associated in a “Prohibited Capacity” (as hereinafter\ndefined) with any other entity engaged in, any “Business Activities” (as hereinafter defined) and not to encourage or assist others in\nencouraging any employee of the Company or any of its subsidiaries to terminate employment or to become engaged in any such Prohibited\nCapacity with an entity engaged in any Business Activities. “Business Activities” shall mean the design, development, manufacture, sale,\nmarketing or servicing of any product or providing of services competitive with the products or services of (x) the Company or any subsidiary\nif you are employed by or consulting with the Company at any time the Option is outstanding, or (y) the subsidiary employing or retaining you\nat any time while the Option is outstanding, to the extent such competitive products or services are distributed or provided either (1) in the\nsame geographic area as are such products or services of the Company or any of its subsidiaries, or (2) to any of the same customers as such\nproducts or services of the Company or any of its subsidiaries are distributed or provided. “Prohibited Capacity” shall mean being associated\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 3\nwith an entity as an employee, consultant, investor or another capacity where (1) confidential business information of the Company or any of\nits subsidiaries could be used in fulfilling any of your duties or responsibilities with such other entity, (2) any of your duties or responsibilities\nare similar to or include any of those you had while employed or retained as a consultant by the Company or any of its subsidiaries, or (3) an\ninvestment by you in such other entity represents more than 1% of such other entity’s capital stock, partnership or other ownership interests.\nShould you either breach or challenge in judicial or arbitration proceedings the validity of any of the restrictions contained in the\npreceding paragraph, by accepting the Option you agree, independent of any equitable or legal remedies that the Company may have and\nwithout limiting the Company’s right to any other equitable or legal remedies, to pay to the Company in cash immediately upon the demand of\nthe Company (1) the amount of income realized for income tax purposes from the exercise of any portion of the Option, and any restoration\noptions granted upon any exercise of the Option, net of all federal, state and other taxes payable on the amount of such income (and reduced by\nany amount already paid to the Company under the [paragraph containing the Clawback for Options]) but only to the extent such exercises\noccurred on or after your termination of employment or, if applicable, any consulting relationship with the Company or its subsidiary or within\nthe two year period prior to the date of such termination, plus (2) all costs and expenses of the Company in any effort to enforce its rights\nunder this or the preceding paragraph. The Company shall have the right to set off or withhold any amount owed to you by the Company or\nany of its subsidiaries or affiliates for any amount owed to the Company by you hereunder.\n3) In consideration of the mutual covenants and certain payments and other benefits to be received by you under this letter agreement\n(“Letter”) and under the Agreement, you and Masco hereby agree (i) Masco agrees to waive the Clawbacks, (ii) you agree that the Non-Compete\nparagraph (set forth above as the first paragraph quoted in Section 2) is hereby deleted in its entirety and is replaced by the following paragraphs (the\n“New Non-Compete”):\nIn order to protect the Company and its subsidiaries from your competitive use of the substantial Proprietary Information and goodwill gained\nby you in your employment and consulting relationships with the Company and its subsidiaries, you agree that during the Consulting Period,\nyou shall not, directly or indirectly: (a) engage in or assist in the design, development, evaluation, planning, manufacture, sale, or marketing of\nany products, technologies, or services that compete with or could displace those designed, sold, manufactured, designed, evaluated, marketed,\nplanned or developed by the Company (whether solely or in conjunction with other subsidiaries of the Company or their employees) at any\ntime during your employment with the Company or any subsidiary or consultation with the Company (the ‘Business Activities’), whether such\nengagement is as an officer, director, proprietor, employee, partner, investor (other than as a holder of less than 1% of the outstanding capital\nstock of a publicly traded\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 4\ncorporation), consultant, advisor, agent or otherwise in any geographic areas in which the products, technologies, or services of the Company\nor any of its subsidiaries, are at that time distributed or planned to be distributed. Business Activities, include, but are not limited to the design,\ndevelopment, evaluation, manufacture, sale, planning and marketing of plumbing products, installation of insulation, windows, window\nframes, paint, cabinets, tub and shower enclosures, hardware, other building and home products or services, and all other products,\ntechnologies and services offered or sold by the Company or any of its subsidiaries; (b) be engaged (other than on behalf of the Company)\nwhether as an officer, director, proprietor, employee, partner, investor (other than as a holder of less than 1% of the outstanding capital stock of\na publicly traded corporation), consultant, advisor, agent or otherwise, (i) as a supplier to any customer with whom the Company or any of its\nsubsidiaries has done business during your employment or consultation with the Company or any of its subsidiaries or (ii) on behalf of any\ncustomer of, or supplier to, the Company or any of its subsidiaries, with whom the Company or any of its subsidiaries has done business\nduring your employment or consultation with the Company or any of its subsidiaries; (c) assist others in engaging in any of the Business\nActivities in the manner prohibited to you; or (d) induce employees of the Company or any of its subsidiaries to engage in any activities that\nare prohibited to you. In addition, during the Consulting Period and for a two-year period following the Consulting Period, you shall not,\ndirectly or indirectly: (e) knowingly induce employees of the Company or any of its subsidiaries to terminate their employment.\nIt is expressly understood and agreed that although you and the Company consider the restrictions contained in each of clauses (a) through\n(e) above reasonable for the purpose of preserving for the Company and its subsidiaries their good will, trade secrets, proprietary rights and\nongoing business value, if a final judicial determination is made by a court having jurisdiction that the time and territory or any other\nrestriction contained in the foregoing Paragraph is an unenforceable restriction on your activities, the provisions of the foregoing Paragraph\nshall not be rendered void but shall be deemed amended to apply as to such maximum time, territory and activities as such court may judicially\ndetermine or indicate to be reasonable;\n(iii) Masco agrees to the continued lapsing of restrictions on all of the shares under the Grants following your termination of employment; (iv) you\nacknowledge that the consideration conveyed to you by the continued lapsing of restrictions on Grants is good and sufficient consideration for the\nConsulting Services which are required of you under the Agreement, and that, among other Remedies provided upon breach as described in\nSection 7 of the Agreement, your breach of the Agreement or of the Grants or this Letter shall thereupon cause the termination of any further lapsing\nof restrictions otherwise provided in subsection (iii) hereinabove; (v) you hereby specifically (and without limitation) acknowledge and agree to the\napplicability of subparagraphs (a), (b), (c) and (d) of the New Non-Compete during the Consulting Period and to the applicability of subparagraph\n(e) of the New Non-Compete during the Consulting Period and for a period of two years thereafter and, upon the breach of any such provisions of\nthe New Non-Compete during the respective periods, you agree, in addition to any other equitable or legal remedies that Masco may have and\nwithout limiting Masco’s right to any\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 5\nother equitable or legal remedies, to pay to Masco in cash immediately upon the demand of Masco the amount of income realized for income tax\npurposes from (A) the exercise of any portion of any option granted under the Stock Plans, net of all federal, state and other taxes payable on the\namount of such income, but only to the extent such exercise occurred on or after your termination of employment and (B) income realized from any\ngrant of shares of Restricted Stock under the Stock Plans, net of all federal, state and other taxes payable on the amount of such income, but only to\nthe extent such income is realized from restrictions lapsing on shares (if any) within the two years after your termination of employment, plus in all\ncases all costs and expenses of Masco incurred in any effort to enforce its rights under this paragraph or under the New Non-Competes (or the Non-\nCompetes, with reference to any time prior to the date hereof). Masco shall have the right to set off or withhold any amount owed to you by Masco\nfor any amount owed by you hereunder.\n4) In light of your position with the Company possessing non-public information, including with respect to our 2011 results of operations, and\nyour continuing relationship with the Company as a Consultant under the Agreement, you agree that you will comply with the provisions of the\nMasco Corporation Policy Against Trading on Inside Information so long as you are a Consultant under the Agreement, including that you will not\nengage in transactions in the Company’s securities until the second day following the Company’s release of its 2011 results of operations, expected\nto occur in the first quarter of 2012.\nIf you are in agreement with the foregoing, please evidence your agreement by signing and returning the enclosed duplicate copy of this Letter\nto the undersigned, whereupon (but no sooner than the time the Agreement shall become finally effective pursuant to its Paragraphs 14 and 15) the\nprovisions of this Letter shall become effective.\nVery truly yours,\n/s/ Timothy Wadhams\nTimothy Wadhams\nPresident and Chief Executive Officer\nAgreed:\n/s/ Donald D. Marie, Jr.\n/s/ December 6, 2011\nDonald J. DeMarie, Jr.\nDate	EX-10.J 11 d276684dex10j.htm NON-COMPETE, NON-DISCLOSURE, NON-DISPARAGEMENT, RELEASE AND\nCONSULTING AGREEMENT\nExhibit 10.j\nNON-COMPETE, NON-DISCL.OSURE, NON-DISPARAGEMENT, RELEASE AND\nCONSULTING AGREEMENT\nThis Agreement is dated as of January 1, 2012 and is between Donald J. DeMarie, Jr. (the “Consultant”) and Masco Corporation (a Delaware\ncorporation), with a business address of 21001 Van Born Road, Taylor, MI 48180 (the “Company”).\nWHEREAS, Consultant has been the Executive Vice President and Chief Operating Officer for the Company, and\nWHEREAS, Consultant has established close business relationships with executives and other employees of the Company’s suppliers of\nmaterials and services used in the manufacture or sale of the Company’s products and services; and\nWHEREAS, Consultant has also established close business relationships with executives and other employees of the Company’s customers,\nincluding retailers, builders, wholesalers, distributors, dealers; and\nWHEREAS, Consultant has also established close business relationships with executives and other employees of investors, lenders and\nadvisors of the Company (both actual and prospective); and\nWHEREAS, Consultant has gained detailed knowledge of the Company’s operations, processes, finances, products, services and business and\nlegal strategies; and\nWHEREAS, the Company desires that, effective November 4, 2011 the Consultant be removed from his office as Executive Vice President and\nChief Operating Officer of the Company and all other offices and directorships he holds for any of the Company’s subsidiaries and affiliates, and that\neffective January 1, 2012 he be terminated from his employment with the Company and thereafter provide the Company, its subsidiaries and\naffiliates, with consulting services through December 31, 2013, and from time to time thereafter, all on the terms and conditions provided herein, and\nWHEREAS, the Consultant has been given the opportunity to review this Agreement, and has been advised to consult and has consulted legal\ncounsel to ascertain whether the Consultant has any potential rights or remedies which by the Consultant’s execution of this Agreement are waived\nand released, and\nWHEREAS, the Consultant and the Company, without any admission of liability, desire to settle with finality, compromise, dispose of, and\nrelease any claims and demands of the Consultant which have been or could be asserted, whether arising out of the Consultant’s employment by or\ntermination from the Company or otherwise;\nNOW THEREFORE, the parties agree as follows:\n1. Termination of Employment and Separation Benefits. Effective January 1, 2012 (“Termination Date”), Consultant’s employment\nwith the Company shall be terminated.\n(a) In consideration for the Release given by the Consultant in Paragraph 12 hereof, the Company agrees (i) to pay the Consultant $1,130,010\nin 15 installments of $75,334 each on or about the first of each of the months January, 2012 through March, 2013; to pay Consultant $499,995 in\nnine installments of $55,555 each on or about the first of each of the months April, 2013 through December, 2013; (iii) to pay the Consultant the sum\nof $16,200 as reimbursement for 18 months of COBRA health coverage, in monthly payments of $900 each during the initial 18 months following\nthe Termination Date; and (iv) to provide the Consultant outplacement services through a vendor selected by Consultant and paid by the Company;\nprovided, that the cost of such outplacement services will not exceed $50,000, which services shall be rendered, and payment therefor made, on or\nbefore December 31, 2013.\n(b) the Company agrees to pay the Consultant (i) an amount equal to any FY 2011 bonus he would have received as a continuing employee, at\nor about the same time as such bonuses may be paid to other Company and (ii)an amount equal to the fully vested value of any FY 2011\nperformance restricted stock award he would have received as a continuing employee, at or about the same time such awards may be granted to other\nCompany executives, in each such case on or before December 31, 2012.\n(c) the Consultant recognizes that the consideration to be provided pursuant to Paragraphs 1(a) and 1(b) is in each case stated as a gross\namount before applicable payroll tax withholding, and is in excess of any earned wages or benefits due and owing the Consultant by virtue of his\nemployment with the Company or otherwise.\n(d) Consultant agrees that he shall faithfully and continuously make himself available as an employee to render whatever services may be\nrequired of him by the Company at all times up to and including the Termination Date.\n(e) Consultant shall be paid for his four weeks’ 2012 vacation eligibility in cash promptly following the Termination Date.\n(f) The Consultant will be eligible, based on his being employed as of December 31, 2011, for a contribution (if declared generally by the\nCompany’s Compensation Committee) to the Company’s Future Service Profit Sharing Plan and the Benefits Restoration Plan based on those plans’\nprovisions.\n2. Duties During and After the Consulting Period.\n(a) During the Consulting Period (as hereinafter defined), the Consultant shall perform and discharge well and faithfully consulting services as\nmay be assigned to Consultant from time to time by the Company’s President and Chief Executive Officer, or any other officer or executive of\nMasco Corporation with oversight responsibility for the Company, or such other person as the President and Chief Executive Officer might designate\nin writing. Such services may include, but not be limited to:\n(i) provision of information concerning the Consultant’s past activities or areas of experience or expertise;\n(ii) participation in phone calls or in meetings with representatives or attorneys of the Company or any of its subsidiaries or\nwith customers, vendors, or suppliers to the Company or any of its subsidiaries;\n(iii) the preparation of marketing studies or studies on competitive trends for the products or services sold by the Company or\nany of its subsidiaries;\n(iv) prompt assistance to, and full cooperation with, the Company in any Company investigation, or with respect to any\ndispute, or any administrative, regulatory or legal proceedings; and\n(v) active and completely focused participation in litigation as a trial witness, deponent, declarant or source of information,\nwithout requiring service of subpoena or other legal process, and when desired, in the Company’s sole discretion, by providing\nimmediate response to requests for assistance.\nAll such services shall be provided promptly and completely and shall involve the full cooperation and best efforts of the Consultant in order\nto meet the goals and direction of the Company, as such may be determined in the Company’s sole discretion. Such services are being significantly\ncompensated, and Consultant acknowledges that such efforts may require substantial time on an as-needed basis. In no event will the Consultant’s\nduties require the relocation of the Consultant from the Consultant’s then-current residence.\n(b) During the pendency of any litigation or other proceeding involving the Company, Consultant shall not communicate with anyone (other\nthan Consultant’s and Company’s attorneys) with respect to any facts relating to, or the subject matter of, any pending or potential litigation or\nregulatory or administrative proceeding involving the Company or any of its subsidiaries, except as directed by the Company or as required by\ncompulsory process or court order. Consultant acknowledges that the Company’s litigation strategies, and the Company’s and its subsidiaries’\nbusiness strategies and conduct which may be the subject of litigation, are highly confidential. In the event of such compulsory process or Court\norder, Consultant shall immediate notify the Company thereof and fully cooperate with the Company in any response thereto and related actions.\n(c) It is agreed that the Consultant shall be an independent contractor and shall not be the employee, servant, agent, partner or joint venturer of\nthe Company, or any of its officers, directors or employees. The Consultant has no authority to assume or create any obligation or liability, express or\nimplied, on behalf of the Company, or in the name of the Company or to bind the Company in any manner whatsoever.\n3\n(d) The Consultant shall devote such time, attention and energies to such services for the Company as the Company shall direct. The\nConsultant acknowledges that time is of the essence in the performance of such services, and Consultant’s failure to promptly, fully and completely\nprovide such services within the time desired by the Company shall constitute a material breach of this Agreement. The consulting services provided\nhereunder shall not exceed in any year twenty percent (20%) of the time the Consultant spent during 2011 while an employee of the Company.\n(e) Consultant shall make it clear to any prospective future employer, client, joint venturer or other recipient of his future services that\nConsultant has all of the foregoing obligations under this Agreement, and that any future provision of his services is subject to his fulfillment of such\nobligations.\n(f) Following the Consulting Period, Consultant will make himself available to the Company from time to time for additional consulting; in\nthis regard, both the Company and the Consultant will undertake their best efforts to assure that the Consultant will be able to perform such\nconsultancy as reasonably needed by the Company in a manner consistent with any other employment obligations possessed at that time by the\nConsultant as mutually agreed upon under a separate consulting relationship between the parties in the future. The parties expect that such consulting\nshall be limited in duration and may involve matters arising in the course of litigation either at trial or from appellate decisions.\n3. Term of Consulting Relationship. The consulting relationship under Paragraph 2 of this Agreement shall be for a period (the\n“Consulting Period”) commencing January 1, 2012, and ending December 31, 2013, unless sooner terminated by written notice of termination from\nthe Company in the event that (i) the Consultant has been convicted of or pled guilty or nolo contendere to a crime involving moral turpitude or a\ncrime providing for a term of imprisonment; or (ii) current alcohol or other substance abuse on the part of the Consultant (whether or not constituting\na crime, or the Consultant’s willful misconduct); or (iii) the Consultant’s failure to follow the instructions of the President and Chief Executive\nOfficer of the Company, or other officers or executives of the Company, or the Consultant’s neglect of duties, but in each such case only following\nwritten notice thereof; or (iv) the Consultant has breached any other obligation under this Agreement, the Stock Plans, the Awards, the Letter or the\nPlan (as hereinafter defined). If the Consulting Period is terminated for any of the reasons set forth in the preceding sentence, the rights of the\nConsultant under Paragraphs 1(a) and 1(b) and to the fees set forth in Paragraph 4 hereof shall cease on the date of such termination (and are subject\nto recovery by the Company as provided in paragraph 3(vi) of the Letter), and the Company shall have no further obligation to the Consultant under\nany of the provisions of this Agreement or the other referenced agreements. Termination shall not, however, affect the provisions of Paragraphs 5\nthrough 13 or 17 through 20, each of which shall survive any termination in accordance with their terms. Consultant’s termination of this Agreement\nwithout cause shall\nconstitute a material breach of this Agreement. If the Consulting Period is terminated by reason of the Consultant’s death, to the extent then not paid\nto the Consultant, the payments under Paragraphs 1(a) and 1(b) and the fees set forth in Paragraph 4(a)(i) hereof shall be made to the Consultant’s\nestate. Survivor rights with respect to the fees described in Paragraph 4(a)(ii) shall be as determined under applicable beneficiary and other\nprovisions embodied in the Stock Plans and Awards as modified by the Letter.\n4. Consulting Period Compensation.\n(a) In full satisfaction for any and all services rendered by the Consultant hereunder, (i) during the period beginning January 1, 2012 and\nending December 31, 2013 the Consultant will be paid, on a monthly basis, a consulting fee in the gross amount of $2084.00 in consecutive monthly\ninstallments on or about the 15th of each month with respect to the immediately preceding month and (ii) the Consultant’s rights and obligations\nunder provisions of the Masco Corporation 1991 and 2005 Long Term Stock Incentive Plans (“Stock Plans™) and the Awards of restricted stock\nmade in letters previously issued to the Consultant pursuant to the Stock Plans (collectively, “Awards™) shall continue vesting following the\nTermination Date only in accordance with the provisions of the Stock Plans and Awards and that certain letter agreement between the Consultant and\nthe Company of even date herewith (“Letter”). Following the Consulting Period, for any consulting services rendered to the Company from time to\ntime, the Consultant shall be paid at a rate as agreed by the parties which shall be commensurate with the Consultant’s cash compensation as in effect\nduring 2011 as mutually agreed upon under a separate consulting relationship between the parties in the future.\n(b) The payments and extended stock vesting set forth in Paragraph 4(a)(i) and (ii) are given in consideration of both the Consultant’s services\nand the Consultant’s immediate on-call availability to perform such services when requested. In addition to such fees, the Company agrees to\nreimburse the Consultant for travel and reasonable living expenses away from the Consultant’s residence directly incurred by the Consultant at the\nCompany’s request in performing such services for the Company or as approved by the Company in advance. The Consultant agrees to keep\naccurate expense records in the form requested by the Company and to provide the Company with such records upon request.\n(c) Other than benefits accrued under the Company’s benefit plans through the Termination Date, and pursuant to that certain Supplemental\nExecutive Retirement Plan as described in the letter agreement dated July 1, 2006 as amended (the “Plan”), the Consultant shall not receive any\nother compensation from the Company nor shall he participate in or receive benefits under any of the Company’s employee fringe benefit programs\nor receive any other fringe benefits from the Company on account of services hereunder (including without limitation health, disability, life\ninsurance, retirement, pension and profit sharing benefits).\n5. Disclosure of Information. The Consultant acknowledges that the Company’s and its subsidiaries’ trade secrets, private or secret\nprocesses as they exist from time to time, and information concerning products, developments, manufacturing techniques, new\n5\nproduct plans, equipment, inventions, discoveries, patent applications, ideas, designs, engineering drawings, sketches, renderings, other drawings,\nmanufacturing and test data, computer programs, progress reports, materials, costs, specifications, processes, methods, research, procurement and\nsales activities and procedures, Company business strategies, litigation or legal strategies, promotion or pricing techniques or credit or financial data\nconcerning customers of the Company or its subsidiaries as well as information relating to the management, operation or planning of the Company\nor its subsidiaries which, in each such case, has not been made public (or, if made public, such disclosure must not have been made by the\nConsultant) (the “Proprietary Information”) are valuable, special and unique assets of the Company and its subsidiaries. In light of the highly\ncompetitive nature of the industries in which the Company and its subsidiaries conduct their businesses, the Consultant agrees that all Proprietary\nInformation heretofore or in the future obtained by the Consultant as a result of the Consultant’s relationship with the Company and its subsidiaries\nshall be considered confidential. In recognition of this fact, the Consultant agrees that he will, during and after the Consulting Period, keep the\nProprietary Information strictly confidential, will not disclose any of such Proprietary Information to any person or entity for any reason or purpose\nwhatsoever (except as directed by the Company), and he will not make use of any Proprietary Information for his own purposes or for the benefit of\nany other person or entity (except the Company and its subsidiaries) under any circumstances.\n6. Non-Competition. In order to protect the Company and its subsidiaries from the Consultant’s competitive use of the substantial\nProprietary Information and goodwill gained by the Consultant in his employment and consulting relationships with the Company and its\nsubsidiaries, the Consultant agrees that during the Consulting Period Consultant shall not, directly or indirectly:\n(a) Engage in or assist in the design, development, evaluation, planning, manufacture, sale, or marketing of any products,\ntechnologies, or services that compete with or could displace those designed, sold, manufactured, designed, evaluated, marketed,\nplanned or developed by the Company (whether solely or in conjunction with other subsidiaries of the Company or their\nemployees) at any time during the Consultant’s employment with the Company or any subsidiary or consultation with the\nCompany (the ‘Business Activities’), whether such engagement is as an officer, director, proprietor, employee, partner, investor\n(other than as a holder of less than 1% of the outstanding capital stock of a publicly traded corporation), consultant, advisor, agent\nor otherwise in any geographic areas in which the products, technologies, or services of the Company or any of its subsidiaries,\nare at that time distributed or planned to be distributed. Business Activities, include, but are not limited to, the design,\ndevelopment, evaluation, manufacture, sale, planning and marketing of plumbing products, installation of insulation, windows,\nwindow frames, paint, cabinets, tub and shower enclosures, hardware, other building and home products or services, and all other\nproducts, technologies and services offered or sold by the Company or any of its subsidiaries;\n6\n(b)  Be engaged (other than on behalf of the Company) whether as an officer, director, proprietor, employee, partner, investor (other\nthan as a holder of less than 1% of the outstanding capital stock of a publicly traded corporation), consultant, advisor, agent or\notherwise, (i) as a supplier to any customer with whom the Company or any of its subsidiaries has done business during\nConsultant’s employment or consultation with the Company or any of its subsidiaries; or (ii) on behalf of any customer of, or\nsupplier to, the Company or any of its subsidiaries, with whom the Company or any of its subsidiaries has done business during\nConsultant’s employment or consultation with the Company or any of its subsidiaries;\n(© Assist others in engaging in any of the Business Activities in the manner prohibited to the Consultant; or\n(d)  Induce employees of the Company or any of its subsidiaries to engage in any activities that are prohibited to the Consultant.\nIn addition, during the Consulting Period and for a two-year period following the Consulting Period, the Consultant shall not, directly or\nindirectly:\n(e) Knowingly induce employees of the Company or any of its subsidiaries to terminate their employment.\nIt is expressly understood and agreed that although the Consultant and the Company consider the restrictions contained in each of clauses (a) through\n(e) above reasonable for the purpose of preserving for the Company and its subsidiaries their good will, trade secrets, proprietary rights and ongoing\nbusiness value, if a final judicial determination is made by a court having jurisdiction that the time and territory or any other restriction contained in\nthis Paragraph is an unenforceable restriction on the activities of the Consultant, the provisions of this Paragraph shall not be rendered void but shall\nbe deemed amended to apply as to such maximum time, territory and activities as such court may judicially determine or indicate to be reasonable.\n7. Remedies.\n(a) The Consultant acknowledges and agrees that the Company’s remedy at law for a breach or threatened breach of any of the provisions of\nParagraphs 5 or 6 of this Agreement would be inadequate and, in recognition of this fact, in the event of a breach by the Consultant of any of the\nprovisions of Paragraphs 5 or 6 of this Agreement, the Consultant agrees that, in addition to the Company’s other remedies at law, at the Company’s\noption, all rights of the Consultant under this Agreement, the Stock Plans, the Awards, the Letter and the Plan may be terminated, and the Company\nshall be entitled without posting any bond to obtain, and the Consultant agrees not to oppose (except to the extent that Consultant maintains that he\ndid not, in fact, engage in any activity in breach of this Agreement) a request for, equitable relief in the form of specific performance, temporary\nrestraining order, temporary or permanent injunction or any other equitable remedy which may then be available, relating to the conduct prohibited\n7\nunder either paragraphs 5 or 6 hereof. The Consultant acknowledges that the granting of a temporary injunction, temporary restraining order or\npermanent injunction merely prohibiting the use of Proprietary Information would not be an adequate remedy upon breach or threatened breach\nhereof. Nothing herein contained shall be construed as prohibiting the Company from pursuing, in addition, any other remedies available to it for\nsuch (or any other) breach or threatened breach.\n(b) In addition to the remedies set forth herein or available to the Company, if Consultant, in Company’s good faith judgment, reasonably\nexercised, at any time during the Consulting Period (and, with respect to breaches of Paragraph 6(e) at any time during the Consulting Period and\ntwo-year period following the Consulting Period), breaches any obligation under this Agreement, the Stock Plans, the Awards, the Letter or the Plan,\nthe Company may immediately terminate any remaining payments and the provision of any other benefits which might otherwise be required this\nAgreement, the Stock Plans, the Awards, the Letter or the Plan, or otherwise due Consultant. Upon any breach, the Company may also recover from\nthe Consultant any payments made under Paragraphs 1(a) and 1(b) hereof (except for the payments described in 1(a)(iii) and 1(a)(iv)), together with\nany proceeds from exercise of any Options or sale of Restricted Stock for which restrictions have lapsed at any time within two years following the\nTermination Date, in each case (cash and stock) net of any state and federal income taxes paid by Consultant. The Company may also recover all\ncost and expenses incurred in any efforts to enforce its rights under this Agreement. The Company shall have the right to set off any amount owed to\nConsultant against any amount owed by Consultant hereunder.\n8. Notices. Any notice required or permitted to be given under this Agreement shall be deemed properly given if in writing and delivered\nby hand and receipt is acknowledged by the party to whom said notice shall be directed, or if mailed by certified or registered mail, postage prepaid\nwith return receipt requested, or sent by express courier service, charges prepaid by shipper, to the addresses of each party stated above and, in the\ncase of notices to the Company, to the attention of its General Counsel at Masco Corporation, 21001 Van Born Road, Taylor, Michigan 48180 (or to\nsuch other address as a party is directed pursuant to written notice from the other party).\n9. Assignment. This Agreement shall not be assignable by either party except by the Company to any subsidiary or affiliate of the\nCompany or to any successor in interest to the Company’s business, and shall be binding upon the Company in the case of any change in control or\nalternate change in control as defined in the Plan.\n10. Entire Agreement. This instrument and the Stock Plans, the Awards, the Letter and the Plan contain the entire agreements of the\nparties relating to the subject of consulting and termination of Consultant’s employment, supersede and replace in their entirety any existing\nemployment agreement or consulting agreement of the Consultant and may not be waived, changed, modified, extended or discharged orally but\nonly by agreement in writing signed by the party against whom enforcement of any such waiver, change, modification, extension or discharge is\nsought. The waiver by the Company of a breach of any provision of this Agreement by the Consultant shall not operate or be construed as a waiver\nof a breach of any other provision or of any subsequent breach by the Consultant.\n8\n11. No Disparagement. Each of the parties agrees not to criticize, disparage or otherwise demean in any way the other or Company’s\naffiliates or their respective products, services, technologies, officers, directors or employees.\n12. RELEASE.\n(a) In consideration of the payments to be made and the agreements and consideration provided by the Company hereunder and the\ncovenants contained in the Letter, Consultant, on Consultant’s own behalf and on behalf of Consultant’s heirs, executors, agents, successors\nand assigns, releases and forever discharges the Company, its subsidiaries and affiliates and their respective officers, agents, current and\nformer employees, successors, predecessors and assigns and any other person, firm, corporation or legal entity in any way related to the\nCompany or its subsidiaries and affiliates (the “Released Parties™), of and from all claims, demands, actions, causes of action, statutory\nrights, duties, debts, sums of money, suits, reckonings, contracts, agreements, controversies, promises, damages, obligations, responsibilities,\nliabilities and accounts of whatsoever kind, nature or description, direct or indirect, in law or in equity, in contract or in tort or otherwise,\nwhich Consultant ever had or which Consultant now has or hereafter can, shall or may have, against any of the Released Parties, for or by\nreason of any matter, cause, or thing whatsoever up to the present time, whether known or unknown, suspected or unsuspected at the\npresent time, or which may be based upon pre-existing acts, claims or events occurring at any time up to the date hereof which may result in\nfuture damages, including without limitation all direct or indirect claims either for direct or consequential damages of any kind whatsoever\nand rights or claims arising under Title VII, any state civil-rights legislation, claims of handicap discrimination, claims relating to the\n1967, as amended (ADEA), against any of the Released Parties, other than (a) claims arising under the express provisions of this Agreement,\n(b) the right to receive benefits accrued through the end of the employment period under the Company’s benefit plans and (c) claims arising\nunder any applicable worker’s compensation statute. It is the intention of the parties that this general release by the Consultant will be\nconstrued as broadly as possible.\n(b) Consultant has: (i) the sole right, title, and interest to the claims released under this Agreement, (ii) neither assigned or transferred, nor\npurported to assign or transfer, to any person or entity, any claim released by this Agreement, and (iii) neither assigned or transferred, nor purported\nto assign or transfer, to any person or entity, the right to the monies, in whole or in part, being paid pursuant to this Agreement.\n9\n13. Non-Disclosure. Other than to the extent required to perform consulting services hereunder, or as required by applicable securities\nlaws, until such time as this Agreement becomes publicly disclosed by the Company in its required securities filings or otherwise, Consultant shall\nnot disclose the fact of this Agreement or any of its terms to any third parties other than to Consultant’s ex-spouse, tax and financial advisors, banks,\ncreditors, attorneys, significant other and children, each of whom, in turn shall be bound by this paragraph not to further disclose this Agreement.\nConsultant agrees that any violation of this confidentiality provision will result in substantial and irreparable injury to Company. In the event of such\na violation, in addition to the Company’s right to terminate any further payment or benefits as permitted under Paragraph 7, Consultant will also be\nliable to Company for such economic damages and equitable relief as a Court may deem appropriate.\n14. Execution and Revocation. (a) This Agreement was first communicated to Consultant on November 5, 2011. Consultant is not\nrequired to, but may, accept this Agreement by signing and dating this Agreement on or before December 6, 2011 which is in excess of twenty-one\n(21) days from the date this Agreement was first communicated to Consultant.\n(b) Consultant understands that this Agreement may be revoked by him for a period of seven (7) calendar days following his execution of this\nAgreement. The Agreement is not effective until this revocation period has expired. Consultant understands that any revocation to be effective must\nbe in writing and either postmarked within seven (7) days of the execution of this Agreement and addressed to Chuck Greenwood, Vice President—\nHuman Resources, Masco Corporation, 21001 Van Born Road, Taylor, Michigan 48180 or hand delivered within seven (7) days to Chuck\nGreenwood at the address listed above. If revocation is by mail, certified mail, return receipt requested is required to show proof of mailing.\n15. No Payment. No payments or benefits under this Agreement shall be made to Consultant until the seven (7) day revocation period\nhas expired. If Consultant does not revoke this Agreement within the seven (7) day revocation period, then this Agreement shall become binding on\nthe Company and Consultant as otherwise provided herein, and the payments and benefits provided in Paragraph 1 will commence.\n16. Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid\nunder applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or\nrule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement\nwill be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained in this\nAgreement, while giving maximum effort to the intent of the parties as reflected in this Agreement.\n10\n17. Arbitration. The parties hereto agree that arbitration will be the sole and exclusive remedy for any claims which may arise between\nthe parties (other than requests by the Company for immediate or preliminary injunctive relief) in any way relating to this Agreement or for the\nbreach thereof. All such claims shall be submitted to arbitration in accordance with the applicable arbitration rules of the American Arbitration\nAssociation (“AAA”), except as those rules conflict with applicable Delaware law. The award issued by the arbitrator shall be final and binding on\nthe parties, and judgment on the award may be entered in any court of competent jurisdiction. The fees and costs of the arbitrator and the arbitration\nand administrative fees shall be borne equally by the parties. Each party understands and agrees that this arbitration provision constitutes a waiver of\ntheir respective rights to adjudicate all claims in court and before a jury, and the parties are instead opting to arbitrate any such claims. All arbitration\nproceedings will be conducted in the Detroit metropolitan area. This arbitration provision explicitly replaces and supersedes any prior agreements\nbetween the parties concerning mediation or any other alternate dispute resolution.\n18. Headings and Construction. The headings of the Paragraphs are for convenience only and shall not control or affect the meaning or\nconstruction or limit the scope or intent of any of the provisions of this Agreement. The terms “and” and “or” herein shall each be interpreted to\ninclude the other, i.e. “and/or.”\n19. Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement. A facsimile signature, whether by fax or other electronic form, shall be deemed an original\nand shall bind the signing Party\n20. Governing Law. All questions concerning the construction, validity and interpretation of this Agreement will be governed by and\nconstrued in accordance with the domestic laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or\nrule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State\nof Delaware. It is the intent of the parties that the provisions of this Agreement shall be interpreted to be consistent with provisions of Section 409A\nof the Internal Revenue Code.\n11\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. Dated: December 6, 2011.\nMASCO CORPORATION\nBy: /s/ Timothy Wadhams\nIts: President and CEO\n/s/ Donald J. DeMarie, Jr.\nConsultant\n12\n».LOGO\nJanuary 1, 2012\nMr. Donald J. DeMarie\n21001 Van Born Road\nTaylor, Michigan 48180\nDear Mr. DeMarie:\nUnder a Release and Consulting Agreement of even date herewith (the “Agreement”), you and Masco Corporation (“Company” or “Masco”)\nhave agreed to a termination of your employment with Masco on January 1, 2012 and the commencement of a consulting relationship running from\nJanuary 1, 2012 through December 31, 2013 (the “Consulting Period”). In connection with that change in your employment relationship, this letter\nsets forth a modification to letters from Masco for Awards of restricted stock (“Grants”) made prior to the date hereof for Masco’s common stock\npursuant to Masco’s 1991 and 2005 Long Term Stock Incentive Plans (“Stock Plans”). Terms which are capitalized herein and not otherwise defined,\nhave their meaning as defined in the Agreement.\n1) The letters making Options on and after February 16, 2000 in each case included an Appendix with the following language (for Options\nmade after December, 2008 the following language is included in the computerized text captioned “Terms and Conditions”) (the “Clawback”):\nIf your employment with the Company [i.e., Masco] or any of its subsidiaries is terminated for any reason, other than death,\npermanent and total disability, retirement on or after normal retirement date or the sale or other disposition of the business or subsidiary\nemploying you, and other than termination of employment in connection with a Change in Control, and if any installments of the Option\nor any restoration options granted upon any exercise of the Option became exercisable within the two year period prior to the date of\nsuch termination (such installments and restoration options being referred to as the “Subject Options”), by accepting the Option you\nagree that the following provisions will apply:\n21001 VAN BORN ROAD\nTAYLOR, MICHIGAN 48180\n313-274-7400\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 2\n(1) Upon the demand of the Company you will pay to the Company in cash within 30 days after the date of such termination the\namount of income realized for income tax purposes from the exercise of any Subject Options, net of all federal, state and other\ntaxes payable on the amount of such income, plus all costs and expenses of the Company in any effort to enforce its rights\nhereunder; and\n(2) Any right you would otherwise have, pursuant to the terms of the Stock Plan and this Agreement, to exercise any Subject\nOptions on or after the date of such termination, shall be extinguished as of the date of such termination.\n2) Such letters granting Options and those letters making Grants on and after July 5, 2000 also included the following language in which you\nagreed not to become associated in any Prohibited Capacity in certain Business Activities (the “Non-Compete”) and (in the second of the two\nparagraphs) requiring you to repay certain amounts to the Company if you breach or challenge such obligations (the “Recapture”). (For brevity,\nparagraphs from the Option Appendices (contained in “Terms and Conditions” in post-2008 Options) follow; paragraphs from the Grant Appendices\n(contained in “Terms and Conditions” in post-2008 Grants) are substantially identical except with appropriately changed reference to Grants rather\nthan Options, and are hereby incorporated by reference as if set forth herein):\nIn addition you agree, in consideration for the grant of the Option and regardless of whether the Option becomes exercisable or is\nexercised, while you are employed or retained as a consultant by the Company or any of its subsidiaries and for a period of one year following\nany termination of your employment and, if applicable, any consulting relationship with the Company or any of its subsidiaries other than a\ntermination in connection with a Change in Control, not to engage in, and not to become associated in a “Prohibited Capacity” (as hereinafter\ndefined) with any other entity engaged in, any “Business Activities” (as hereinafter defined) and not to encourage or assist others in\nencouraging any employee of the Company or any of its subsidiaries to terminate employment or to become engaged in any such Prohibited\nCapacity with an entity engaged in any Business Activities. “Business Activities” shall mean the design, development, manufacture, sale,\nmarketing or servicing of any product or providing of services competitive with the products or services of (x) the Company or any subsidiary\nif you are employed by or consulting with the Company at any time the Option is outstanding, or (y) the subsidiary employing or retaining you\nat any time while the Option is outstanding, to the extent such competitive products or services are distributed or provided either (1) in the\nsame geographic area as are such products or services of the Company or any of its subsidiaries, or (2) to any of the same customers as such\nproducts or services of the Company or any of its subsidiaries are distributed or provided. “Prohibited Capacity” shall mean being associated\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 3\nwith an entity as an employee, consultant, investor or another capacity where (1) confidential business information of the Company or any of\nits subsidiaries could be used in fulfilling any of your duties or responsibilities with such other entity, (2) any of your duties or responsibilities\nare similar to or include any of those you had while employed or retained as a consultant by the Company or any of its subsidiaries, or (3) an\ninvestment by you in such other entity represents more than 1% of such other entity’s capital stock, partnership or other ownership interests.\nShould you either breach or challenge in judicial or arbitration proceedings the validity of any of the restrictions contained in the\npreceding paragraph, by accepting the Option you agree, independent of any equitable or legal remedies that the Company may have and\nwithout limiting the Company’s right to any other equitable or legal remedies, to pay to the Company in cash immediately upon the demand of\nthe Company (1) the amount of income realized for income tax purposes from the exercise of any portion of the Option, and any restoration\noptions granted upon any exercise of the Option, net of all federal, state and other taxes payable on the amount of such income (and reduced by\nany amount already paid to the Company under the [paragraph containing the Clawback for Options]) but only to the extent such exercises\noccurred on or after your termination of employment or, if applicable, any consulting relationship with the Company or its subsidiary or within\nthe two year period prior to the date of such termination, plus (2) all costs and expenses of the Company in any effort to enforce its rights\nunder this or the preceding paragraph. The Company shall have the right to set off or withhold any amount owed to you by the Company or\nany of its subsidiaries or affiliates for any amount owed to the Company by you hereunder.\n3) In consideration of the mutual covenants and certain payments and other benefits to be received by you under this letter agreement\n(“Letter”) and under the Agreement, you and Masco hereby agree (i) Masco agrees to waive the Clawbacks, (ii) you agree that the Non-Compete\nparagraph (set forth above as the first paragraph quoted in Section 2) is hereby deleted in its entirety and is replaced by the following paragraphs (the\n“New Non-Compete”):\nIn order to protect the Company and its subsidiaries from your competitive use of the substantial Proprietary Information and goodwill gained\nby you in your employment and consulting relationships with the Company and its subsidiaries, you agree that during the Consulting Period,\nyou shall not, directly or indirectly: (a) engage in or assist in the design, development, evaluation, planning, manufacture, sale, or marketing of\nany products, technologies, or services that compete with or could displace those designed, sold, manufactured, designed, evaluated, marketed,\nplanned or developed by the Company (whether solely or in conjunction with other subsidiaries of the Company or their employees) at any\ntime during your employment with the Company or any subsidiary or consultation with the Company (the ‘Business Activities’), whether such\nengagement is as an officer, director, proprietor, employee, partner, investor (other than as a holder of less than 1% of the outstanding capital\nstock of a publicly traded\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 4\ncorporation), consultant, advisor, agent or otherwise in any geographic areas in which the products, technologies, or services of the Company\nor any of its subsidiaries, are at that time distributed or planned to be distributed. Business Activities, include, but are not limited to the design,\ndevelopment, evaluation, manufacture, sale, planning and marketing of plumbing products, installation of insulation, windows, window\nframes, paint, cabinets, tub and shower enclosures, hardware, other building and home products or services, and all other products,\ntechnologies and services offered or sold by the Company or any of its subsidiaries; (b) be engaged (other than on behalf of the Company)\nwhether as an officer, director, proprietor, employee, partner, investor (other than as a holder of less than 1% of the outstanding capital stock of\na publicly traded corporation), consultant, advisor, agent or otherwise, (i) as a supplier to any customer with whom the Company or any of its\nsubsidiaries has done business during your employment or consultation with the Company or any of its subsidiaries or (ii) on behalf of any\ncustomer of, or supplier to, the Company or any of its subsidiaries, with whom the Company or any of its subsidiaries has done business\nduring your employment or consultation with the Company or any of its subsidiaries; (c) assist others in engaging in any of the Business\nActivities in the manner prohibited to you; or (d) induce employees of the Company or any of its subsidiaries to engage in any activities that\nare prohibited to you. In addition, during the Consulting Period and for a two-year period following the Consulting Period, you shall not,\ndirectly or indirectly: (e) knowingly induce employees of the Company or any of its subsidiaries to terminate their employment.\nIt is expressly understood and agreed that although you and the Company consider the restrictions contained in each of clauses (a) through\n(e) above reasonable for the purpose of preserving for the Company and its subsidiaries their good will, trade secrets, proprietary rights and\nongoing business value, if a final judicial determination is made by a court having jurisdiction that the time and territory or any other\nrestriction contained in the foregoing Paragraph is an unenforceable restriction on your activities, the provisions of the foregoing Paragraph\nshall not be rendered void but shall be deemed amended to apply as to such maximum time, territory and activities as such court may judicially\ndetermine or indicate to be reasonable;\n(iii) Masco agrees to the continued lapsing of restrictions on all of the shares under the Grants following your termination of employment; (iv) you\nacknowledge that the consideration conveyed to you by the continued lapsing of restrictions on Grants is good and sufficient consideration for the\nConsulting Services which are required of you under the Agreement, and that, among other Remedies provided upon breach as described in\nSection 7 of the Agreement, your breach of the Agreement or of the Grants or this Letter shall thereupon cause the termination of any further lapsing\nof restrictions otherwise provided in subsection (iii) hereinabove; (v) you hereby specifically (and without limitation) acknowledge and agree to the\napplicability of subparagraphs (a), (b), (c) and (d) of the New Non-Compete during the Consulting Period and to the applicability of subparagraph\n(e) of the New Non-Compete during the Consulting Period and for a period of two years thereafter and, upon the breach of any such provisions of\nthe New Non-Compete during the respective periods, you agree, in addition to any other equitable or legal remedies that Masco may have and\nwithout limiting Masco’s right to any\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 5\nother equitable or legal remedies, to pay to Masco in cash immediately upon the demand of Masco the amount of income realized for income tax\npurposes from (A) the exercise of any portion of any option granted under the Stock Plans, net of all federal, state and other taxes payable on the\namount of such income, but only to the extent such exercise occurred on or after your termination of employment and (B) income realized from any\ngrant of shares of Restricted Stock under the Stock Plans, net of all federal, state and other taxes payable on the amount of such income, but only to\nthe extent such income is realized from restrictions lapsing on shares (if any) within the two years after your termination of employment, plus in all\ncases all costs and expenses of Masco incurred in any effort to enforce its rights under this paragraph or under the New Non-Competes (or the Non-\nCompetes, with reference to any time prior to the date hereof). Masco shall have the right to set off or withhold any amount owed to you by Masco\nfor any amount owed by you hereunder.\n4) In light of your position with the Company possessing non-public information, including with respect to our 2011 results of operations, and\nyour continuing relationship with the Company as a Consultant under the Agreement, you agree that you will comply with the provisions of the\nMasco Corporation Policy Against Trading on Inside Information so long as you are a Consultant under the Agreement, including that you will not\nengage in transactions in the Company’s securities until the second day following the Company’s release of its 2011 results of operations, expected\nto occur in the first quarter of 2012.\nIf you are in agreement with the foregoing, please evidence your agreement by signing and returning the enclosed duplicate copy of this Letter\nto the undersigned, whereupon (but no sooner than the time the Agreement shall become finally effective pursuant to its Paragraphs 14 and 15) the\nprovisions of this Letter shall become effective.\nVery truly yours,\n/s/ Timothy Wadhams\nTimothy Wadhams\nPresident and Chief Executive Officer\nAgreed:\n/s/ Donald D. Marie, Jr. /s/ December 6, 2011\nDonald J. DeMarie, Jr. Date	EX-10.J 11 d276684dex10j.htn NON-COMPETE, NON-DISCLOSURE, NON-DISPARAGEMENT, RELEASE AND\nCONSULTING AGREEMENT\nExhibit 10.j\nNON-COMPETE, NON-DISCLOSURE, NON-DISPARAGEMENT, RELEASE AND\nCONSULTING AGREEMENT\nThis Agreement is dated as of January 1, 2012 and is between Donald J. DeMarie, Jr. (the "Consultant") and Masco Corporation (a Delaware\ncorporation), with a business address of 21001 Van Born Road, Taylor, MI 48180 (the "Company").\nWHEREAS, Consultant has been the Executive Vice President and Chief Operating Officer for the Company, and\nWHEREAS, Consultant has established close business relationships with executives and other employees of the Company's suppliers of\nmaterials and services used in the manufacture or sale of the Company's products and services; and\nWHEREAS, Consultant has also established close business relationships with executives and other employees of the Company's customers,\nincluding retailers, builders, wholesalers, distributors, dealers; and\nWHEREAS, Consultant has also established close business relationships with executives and other employees of investors, lenders and\nadvisors of the Company (both actual and prospective); and\nWHEREAS, Consultant has gained detailed knowledge of the Company's operations, processes, finances, products, services and business and\nlegal strategies; and\nWHEREAS, the Company desires that, effective November 4, 2011 the Consultant be removed from his office as Executive Vice President and\nChief Operating Officer of the Company and all other offices and directorships he holds for any of the Company's subsidiaries and affiliates, and that\neffective January 1, 2012 he be terminated from his employment with the Company and thereafter provide the Company, its subsidiaries and\naffiliates, with consulting services through December 31, 2013, and from time to time thereafter, all on the terms and conditions provided herein,\nand\nWHEREAS, the Consultant has been given the opportunity to review this Agreement, and has been advised to consult and has consulted legal\ncounsel to ascertain whether the Consultant has any potential rights or remedies which by the Consultant's execution of this Agreement are waived\nand released, and\nWHEREAS, the Consultant and the Company, without any admission of liability, desire to settle with finality, compromise, dispose of, and\nrelease any claims and demands of the Consultant which have been or could be asserted, whether arising out of the Consultant's employment by or\ntermination from the Company or otherwise;\nNOW THEREFORE, the parties agree as follows:\n1. Termination of Employment and Separation Benefits. Effective January 1, 2012 ("Termination Date"), Consultant's employment\nwith the Company shall be terminated.\n(a)\nIn\nconsideration for the Release given by the Consultant in Paragraph 12 hereof, the Company agrees (i) to pay the Consultant $1,130,010\nin 15 installments of $75,334 each on or about the first of each of the months January, 2012 through March, 2013; to pay Consultant $499,995 in\nnine installments of $55,555 each on or about the first of each of the months April, 2013 through December, 2013; (iii) to pay the Consultant the sum\nof $16,200 as reimbursement for 18 months of COBRA health coverage, in monthly payments of $900 each during the initial 18 months following\nthe Termination Date; and (iv) to provide the Consultant outplacement services through a vendor selected by Consultant and paid by the Company;\nprovided, that the cost of such outplacement services will not exceed $50,000, which services shall be rendered, and payment therefor made, on or\nbefore December 31, 2013.\n(b) the Company agrees to pay the Consultant (i) an amount equal to any FY 2011 bonus he would have received as a continuing employee, at\nor about the same time as such bonuses may be paid to other Company and (ii)an amount equal to the fully vested value of any FY 2011\nperformance restricted stock award he would have received as a continuing employee, at or about the same time such awards may be granted to other\nCompany executives, in each such case on or before December 31, 2012.\n(c) the Consultant recognizes that the consideration to be provided pursuant to Paragraphs 1(a) and 1(b) is in each case stated as a gross\namount before applicable payroll tax withholding, and is in excess of any earned wages or benefits due and owing the Consultant by virtue of his\nemployment with the Company or otherwise.\n(d) Consultant agrees that he shall faithfully and continuously make himself available as an employee to render whatever services may be\nrequired of him by the Company at all times up to and including the Termination Date.\n(e) Consultant shall be paid for his four weeks' 2012 vacation eligibility in cash promptly following the Termination Date.\n(f) The Consultant will be eligible, based on his being employed as of December 31, 2011, for a contribution (if declared generally by the\nCompany's Compensation Committee) to the Company's Future Service Profit Sharing Plan and the Benefits Restoration Plan based on those plans'\nprovisions.\n2. Duties During and After the Consulting Period.\n(a) During the Consulting Period (as hereinafter defined), the Consultant shall perform and discharge well and faithfully consulting services as\nmay be assigned to Consultant from time to time by the Company's President and Chief Executive Officer, or any other officer or executive of\nMasco Corporation with oversight responsibility for the Company, or such other person as the President and Chief Executive Officer might designate\nin writing Such services may include, but not be limited to:\n2\n(i) provision of information concerning the Consultant's past activities or areas of experience or expertise;\n(ii) participation in phone calls or in meetings with representatives or attorneys of the Company or any of its subsidiaries\nor\nwith customers, vendors, or suppliers to the Company or any of its subsidiaries;\n(iii) the preparation of marketing studies or studies on competitive trends for the products or services sold by the Company or\nany of its subsidiaries;\n(iv) prompt assistance to, and full cooperation with, the Company in any Company investigation, or with respect to any\ndispute, or any administrative, regulatory or legal proceedings; and\n(v) active and completely focused participation in litigation as a trial witness, deponent, declarant or source of information,\nwithout requiring service of subpoena or other legal process, and when desired, in the Company's sole discretion, by providing\nimmediate response to requests for assistance.\nAll such services shall be provided promptly and completely and shall involve the full cooperation and best efforts of the Consultant in order\nto meet the goals and direction of the Company, as such may be determined in the Company's sole discretion. Such services are being significantly\ncompensated, and Consultant acknowledges that such efforts may require substantial time on an as-needed basis. In no event will the Consultant's\nduties require the relocation of the Consultant from the Consultant's then-current residence.\n(b) During the pendency of any litigation or other proceeding involving the Company, Consultant shall not communicate with anyone (other\nthan Consultant's and Company's attorneys) with respect to any facts relating to, or the subject matter of, any pending or potential litigation or\nregulatory or administrative proceeding involving the Company or any of its subsidiaries, except as directed by the Company or as required by\ncompulsory process or court order. Consultant acknowledges that the Company's litigation strategies, and the Company's and its subsidiaries'\nbusiness strategies and conduct which may be the subject of litigation, are highly confidential. In the event of such compulsory process or Court\norder, Consultant shall immediate notify the Company thereof and fully cooperate with the Company in any response thereto and related actions.\n(c) It is agreed that the Consultant shall be an independent contractor and shall not be the employee, servant, agent, partner or joint venturer of\nthe Company, or any of its officers, directors or employees. The Consultant has no authority to assume or create any obligation or liability, express or\nimplied, on behalf of the Company, or in the name of the Company or to bind the Company in any manner whatsoever.\n3\n(d) The Consultant shall devote such time, attention and energies to such services for the Company as the Company shall direct. The\nConsultant acknowledges that time is of the essence in the performance of such services, and Consultant's failure to promptly, fully and completely\nprovide such services within the time desired by the Company shall constitute a material breach of this Agreement. The consulting services provided\nhereunder shall not exceed in any year twenty percent (20%) of the time the Consultant spent during 2011 while an employee of the Company.\n(e) Consultant shall make it clear to any prospective future employer, client, joint venturer or other recipient of his future services that\nConsultant has all of the foregoing obligations under this Agreement, and that any future provision of his services is subject to his fulfillment of such\nobligations.\n(f) Following the Consulting Period, Consultant will make himself available to the Company from time to time for additional consulting; in\nthis regard, both the Company and the Consultant will undertake their best efforts to assure that the Consultant will be able to perform such\nconsultancy as reasonably needed by the Company in a manner consistent with any other employment obligations possessed at that time by the\nConsultant as mutually agreed upon under a separate consulting relationship between the parties in the future. The parties expect that such consulting\nshall be limited in duration and may involve matters arising in the course of litigation either at trial or from appellate decisions.\n3. Term of Consulting Relationship. The consulting relationship under Paragraph 2 of this Agreement shall be for a period (the\n"Consulting Period") commencing January 1, 2012, and ending December 31, 2013, unless sooner terminated by written notice of termination from\nthe Company in the event that (i) the Consultant has been convicted of or pled guilty or nolo contendere to a crime involving moral turpitude or a\ncrime providing for a term of imprisonment; or (ii) current alcohol or other substance abuse on the part of the Consultant (whether or not constituting\na crime, or the Consultant's willful misconduct); or (iii) the Consultant's failure to follow the instructions of the President and Chief Executive\nOfficer of the Company, or other officers or executives of the Company, or the Consultant's neglect of duties, but in each such case only following\nwritten notice thereof; or (iv) the Consultant has breached any other obligation under this Agreement, the Stock Plans, the Awards, the Letter or the\nPlan (as hereinafter defined). If the Consulting Period is terminated for any of the reasons set forth in the preceding sentence, the rights of the\nConsultant under Paragraphs 1(a) and 1(b) and to the fees set forth in Paragraph 4 hereof shall cease on the date of such termination (and are subject\nto\nrecovery by the Company as provided in paragraph 3(vi) of the Letter), and the Company shall have no further obligation to the Consultant under\nany of the provisions of this Agreement or the other referenced agreements. Termination shall not, however, affect the provisions of Paragraphs 5\nthrough 13 or 17 through 20, each of which shall survive any termination in accordance with their terms. Consultant's termination of this Agreement\nwithout cause shall\n4\nconstitute a material breach of this Agreement. If the Consulting Period is terminated by reason of the Consultant's death, to the extent then not paid\nto the Consultant, the payments under Paragraphs 1(a) and 1(b) and the fees set forth in Paragraph 4(a)(i) hereof shall be made to the Consultant's\nestate. Survivor rights with respect to the fees described in Paragraph 4(a)(ii) shall be as determined under applicable beneficiary and other\nprovisions embodied in the Stock Plans and Awards as modified by the Letter.\n4. Consulting Period Compensation.\n(a) In full satisfaction for any and all services rendered by the Consultant hereunder, (i) during the period beginning January 1, 2012 and\nending December 31, 2013 the Consultant will be paid, on a monthly basis, a consulting fee in the gross amount of $2084.00 in consecutive monthly\ninstallments on or about the 15th of each month with respect to the immediately preceding month and (ii) the Consultant's rights and obligations\nunder provisions of the Masco Corporation 1991 and 2005 Long Term Stock Incentive Plans ("Stock Plans") and the Awards of restricted stock\nmade in letters previously issued to the Consultant pursuant to the Stock Plans (collectively, "Awards") shall continue vesting following the\nTermination Date only in accordance with the provisions of the Stock Plans and Awards and that certain letter agreement between the Consultant and\nthe Company of even date herewith ("Letter"). Following the Consulting Period, for any consulting services rendered to the Company from time to\ntime, the Consultant shall be paid at a rate as agreed by the parties which shall be commensurate with the Consultant's cash compensation as in effect\nduring 2011 as mutually agreed upon under a separate consulting relationship between the parties in the future.\n(b) The payments and extended stock vesting set forth in Paragraph 4(a)(i) and (ii) are given in consideration of both the Consultant's services\nand the Consultant's immediate on-call availability to perform such services when requested. In addition to such fees, the Company agrees to\nreimburse the Consultant for travel and reasonable living expenses away from the Consultant's residence directly incurred by the Consultant at the\nCompany's request in performing such services for the Company or as approved by the Company in advance. The Consultant agrees to keep\naccurate expense records in the form requested by the Company and to provide the Company with such records upon request.\n(c) Other than benefits accrued under the Company's benefit plans through the Termination Date, and pursuant to that certain Supplemental\nExecutive Retirement Plan as described in the letter agreement dated July 1, 2006 as amended (the "Plan"), the Consultant shall not receive any\nother compensation from the Company nor shall he participate in or receive benefits under any of the Company's employee fringe benefit programs\nor receive any other fringe benefits from the Company on account of services hereunder (including without limitation health, disability, life\ninsurance, retirement, pension and profit sharing benefits).\n5. Disclosure of Information. The Consultant acknowledges that the Company's and its subsidiaries' trade secrets, private or secret\nprocesses as they exist from time to time, and information concerning products, developments, manufacturing techniques, new\n5\nproduct plans, equipment, inventions, discoveries, patent applications, ideas, designs, engineering drawings, sketches, renderings, other drawings,\nmanufacturing and test data, computer programs, progress reports, materials, costs, specifications, processes, methods, research, procurement and\nsales activities and procedures, Company business strategies, litigation or legal strategies, promotion or pricing techniques or credit or financial data\nconcerning customers of the Company or its subsidiaries as well as information relating to the management, operation or planning of the Company\nor its subsidiaries which, in each such case, has not been made public (or, if made public, such disclosure must not have been made by the\nConsultant) (the "Proprietary Information") are valuable, special and unique assets of the Company and its subsidiaries. In light of the highly\ncompetitive nature of the industries in which the Company and its subsidiaries conduct their businesses, the Consultant agrees that all Proprietary\nInformation heretofore or in the future obtained by the Consultant as a result of the Consultant's relationship with the Company and its subsidiaries\nshall be considered confidential. In recognition of this fact, the Consultant agrees that he will, during and after the Consulting Period, keep the\nProprietary Information strictly confidential, will not disclose any of such Proprietary Information to any person or entity for any reason or purpose\nwhatsoever (except as directed by the Company), and he will not make use of any Proprietary Information for his own purposes or for the benefit of\nany other person or entity (except the Company and its subsidiaries) under any circumstances.\n6. Non-Competition. In order to protect the Company and its subsidiaries from the Consultant's competitive use of the substantial\nProprietary Information and goodwill gained by the Consultant in his employment and consulting relationships with the Company and its\nsubsidiaries, the Consultant agrees that during the Consulting Period Consultant shall not, directly or indirectly:\n(a)\nEngage in or assist in the design, development, evaluation, planning, manufacture, sale, or marketing of any products,\ntechnologies, or services that compete with or could displace those designed, sold, manufactured, designed, evaluated, marketed,\nplanned or developed by the Company (whether solely or in conjunction with other subsidiaries of the Company or their\nemployees) at any time during the Consultant's employment with the Company or any subsidiary or consultation with the\nCompany (the 'Business Activities'), whether such engagement is as an officer, director, proprietor, employee, partner, investor\n(other than as a holder of less than 1% of the outstanding capital stock of a publicly traded corporation), consultant, advisor, agent\nor otherwise in any geographic areas in which the products, technologies, or services of the Company or any of its subsidiaries,\nare at that time distributed or planned to be distributed. Business Activities, include, but are not limited to, the design,\ndevelopment, evaluation, manufacture, sale, planning and marketing of plumbing products, installation of insulation, windows,\nwindow frames, paint, cabinets, tub and shower enclosures, hardware, other building and home products or services, and all other\nproducts, technologies and services offered or sold by the Company or any of its subsidiaries;\n6\n(b)\nBe engaged (other than on behalf of the Company) whether as an officer, director, proprietor, employee, partner, investor (other\nthan as a holder of less than 1% of the outstanding capital stock of a publicly traded corporation), consultant, advisor, agent or\notherwise, (i) as a supplier to any customer with whom the Company or any of its subsidiaries has done business during\nConsultant's employment or consultation with the Company or any of its subsidiaries; or (ii) on behalf of any customer of, or\nsupplier to, the Company or any of its subsidiaries, with whom the Company or any of its subsidiaries has done business during\nConsultant's employment or consultation with the Company or any of its subsidiaries;\n(c)\nAssist others in engaging in any of the Business Activities in the manner prohibited to the Consultant; or\n(d)\nInduce employees of the Company or any of its subsidiaries to engage in any activities that are prohibited to the Consultant.\nIn addition, during the Consulting Period and for a two-year period following the Consulting Period, the Consultant shall not, directly or\nindirectly:\n(e)\nKnowingly induce employees of the Company or any of its subsidiaries to terminate their employment.\nIt is expressly understood and agreed that although the Consultant and the Company consider the restrictions contained in each of clauses (a) through\n(e) above reasonable for the purpose of preserving for the Company and its subsidiaries their good will, trade secrets, proprietary rights and ongoing\nbusiness value, if a final judicial determination is made by a court having jurisdiction that the time and territory or any other restriction contained in\nthis Paragraph is an unenforceable restriction on the activities of the Consultant, the provisions of this Paragraph shall not be rendered void but shall\nbe deemed amended to apply as to such maximum time, territory and activities as such court may judicially determine or indicate to be reasonable.\n7. Remedies.\n(a) The Consultant acknowledges and agrees that the Company's remedy at law for a breach or threatened breach of any of the provisions\nof\nParagraphs 5 or 6 of this Agreement would be inadequate and, in recognition of this fact, in the event of a breach by the Consultant of any of the\nprovisions of Paragraphs 5 or 6 of this Agreement, the Consultant agrees that, in addition to the Company's other remedies at law, at the Company's\noption, all rights of the Consultant under this Agreement, the Stock Plans, the Awards, the Letter and the Plan may be terminated, and the Company\nshall be entitled without posting any bond to obtain, and the Consultant agrees not to oppose (except to the extent that Consultant maintains that he\ndid not, in fact, engage in any activity in breach of this Agreement) a request for, equitable relief in the form of specific performance, temporary\nrestraining order, temporary or permanent injunction or any other equitable remedy which may then be available, relating to the conduct prohibited\n7\nunder either paragraphs 5 or 6 hereof. The Consultant acknowledges that the granting of a temporary injunction, temporary restraining order or\npermanent injunction merely prohibiting the use of Proprietary Information would not be an adequate remedy upon breach or threatened breach\nhereof. Nothing herein contained shall be construed as prohibiting the Company from pursuing, in addition, any other remedies available to it for\nsuch (or any other) breach or threatened breach.\n(b) In addition to the remedies set forth herein or available to the Company, if Consultant, in Company's good faith judgment, reasonably\nexercised, at any time during the Consulting Period (and, with respect to breaches of Paragraph 6(e) at any time during the Consulting Period and\ntwo-year period following the Consulting Period), breaches any obligation under this Agreement, the Stock Plans, the Awards, the Letter or the Plan,\nthe Company may immediately terminate any remaining payments and the provision of any other benefits which might otherwise be required this\nAgreement, the Stock Plans, the Awards, the Letter or the Plan, or otherwise due Consultant. Upon any breach, the Company may also recover from\nthe Consultant any payments made under Paragraphs 1(a) and 1(b) hereof (except for the payments described in 1(a)(iii) and 1(a)(iv)) together with\nany proceeds from exercise of any Options or sale of Restricted Stock for which restrictions have lapsed at any time within two years following the\nTermination Date, in each case (cash and stock) net of any state and federal income taxes paid by Consultant. The Company may also recover all\ncost and expenses incurred in any efforts to enforce its rights under this Agreement. The Company shall have the right to set off any amount owed\nto\nConsultant against any amount owed by Consultant hereunder.\n8. Notices. Any notice required or permitted to be given under this Agreement shall be deemed properly given if in writing and delivered\nby hand and receipt is acknowledged by the party to whom said notice shall be directed, or if mailed by certified or registered mail, postage prepaid\nwith return receipt requested, or sent by express courier service, charges prepaid by shipper, to the addresses of each party stated above and, in the\ncase of notices to the Company, to the attention of its General Counsel at Masco Corporation, 21001 Van Born Road, Taylor, Michigan 48180 (or to\nsuch other address as a party is directed pursuant to written notice from the other party).\n9. Assignment. This Agreement shall not be assignable by either party except by the Company to any subsidiary or affiliate\nof\nthe\nCompany or to any successor in interest to the Company's business, and shall be binding upon the Company in the case of any change in control or\nalternate change in control as defined in the Plan.\n10. Entire Agreement. This instrument and the Stock Plans, the Awards, the Letter and the Plan contain the entire agreements of\nthe\nparties relating to the subject of consulting and termination of Consultant's employment, supersede and replace in their entirety any existing\nemployment agreement or consulting agreement of the Consultant and may not be waived, changed, modified, extended or discharged orally but\nonly by agreement in writing signed by the party against whom enforcement of any such waiver, change, modification, extension or discharge is\nsought. The waiver by the Company of a breach of any provision of this Agreement by the Consultant shall not operate or be construed as a waiver\nof a breach of any other provision or of any subsequent breach by the Consultant.\n8\n11. No Disparagement. Each of the parties agrees not to criticize, disparage or otherwise demean in any way the other or Company's\naffiliates or their respective products, services, technologies, officers, directors or employees.\n12. RELEASE.\n(a) In consideration of the payments to be made and the agreements and consideration provided by the Company hereunder and the\ncovenants contained in the Letter, Consultant, on Consultant's own behalf and on behalf of Consultant's heirs, executors, agents, successors\nand assigns, releases and forever discharges the Company, its subsidiaries and affiliates and their respective officers, agents, current and\nformer employees, successors, predecessors and assigns and any other person, firm, corporation or legal entity in any way related to the\nCompany or its subsidiaries and affiliates (the "Released Parties"), of and from all claims, demands, actions, causes of action, statutory\nrights, duties, debts, sums of money, suits, reckonings, contracts, agreements, controversies, promises, damages, obligations, responsibilities,\nliabilities and accounts of whatsoever kind, nature or description, direct or indirect, in law or in equity, in contract or in tort or otherwise,\nwhich Consultant ever had or which Consultant now has or hereafter can, shall or may have, against any of the Released Parties, for or by\nreason of any matter, cause, or thing whatsoever up to the present time, whether known or unknown, suspected or unsuspected at the\npresent time, or which may be based upon pre-existing acts, claims or events occurring at any time up to the date hereof which may result in\nfuture damages, including without limitation all direct or indirect claims either for direct or consequential damages of any kind whatsoever\nand rights or claims arising under Title VII, any state civil-rights legislation, claims of handicap discrimination, claims relating to the\ntermination of employment as referred to herein, and claims of age discrimination under the Age Discrimination in Employment Act of\n1967, as amended (ADEA), against any of the Released Parties, other than (a) claims arising under the express provisions of this Agreement,\n(b) the right to receive benefits accrued through the end of the employment period under the Company's benefit plans and (c) claims arising\nunder any applicable worker's compensation statute. It is the intention of the parties that this general release by the Consultant will be\nconstrued as broadly as possible.\n(b) Consultant has: (i) the sole right, title, and interest to the claims released under this Agreement, (ii) neither assigned or transferred, nor\npurported to assign or transfer, to any person or entity, any claim released by this Agreement, and (iii) neither assigned or transferred, nor purported\nto assign or transfer, to any person or entity, the right to the monies, in whole or in part, being paid pursuant to this Agreement.\n9\n13. Non-Disclosure. Other than to the extent required to perform consulting services hereunder, or as required by applicable securities\nlaws, until such time as this Agreement becomes publicly disclosed by the Company in its required securities filings or otherwise, Consultant shall\nnot disclose the fact of this Agreement or any of its terms to any third parties other than to Consultant's ex-spouse, tax and financial advisors, banks,\ncreditors, attorneys, significant other and children, each of whom, in turn shall be bound by this paragraph not to further disclose this Agreement.\nConsultant agrees that any violation of this confidentiality provision will result in substantial and irreparable injury to Company. In the event of such\na\nviolation, in addition to the Company's right to terminate any further payment or benefits as permitted under Paragraph 7, Consultant will also be\nliable to Company for such economic damages and equitable relief as a Court may deem appropriate.\n14. Execution and Revocation. (a) This Agreement was first communicated to Consultant on November 5, 2011. Consultant is not\nrequired to, but may, accept this Agreement by signing and dating this Agreement on or before December 6, 2011 which is in excess of twenty-one\n(21) days from the date this Agreement was first communicated to Consultant.\n(b) Consultant understands that this Agreement may be revoked by him for a period of seven (7) calendar days following his execution of this\nAgreement. The Agreement is not effective until this revocation period has expired. Consultant understands that any revocation to be effective must\nbe in writing and either postmarked within seven (7) days of the execution of this Agreement and addressed to Chuck Greenwood, Vice President-\nHuman Resources, Masco Corporation, 21001 Van Born Road, Taylor, Michigan 48180 or hand delivered within seven (7) days to Chuck\nGreenwood at the address listed above. If revocation is by mail, certified mail, return receipt requested is required to show proof of mailing.\n15. No Payment. No payments or benefits under this Agreement shall be made to Consultant until the seven (7) day revocation period\nhas expired. If Consultant does not revoke this Agreement within the seven (7) day revocation period, then this Agreement shall become binding on\nthe Company and Consultant as otherwise provided herein, and the payments and benefits provided in Paragraph 1 will commence.\n16.\nSeverability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid\nunder applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or\nrule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement\nwill be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained in this\nAgreement, while giving maximum effort to the intent of the parties as reflected in this Agreement.\n10\n17. Arbitration. The parties hereto agree that arbitration will be the sole and exclusive remedy for any claims which may arise between\nthe parties (other than requests by the Company for immediate or preliminary injunctive relief) in any way relating to this Agreement or for the\nbreach thereof. All such claims shall be submitted to arbitration in accordance with the applicable arbitration rules of the American Arbitration\nAssociation ("AAA"), except as those rules conflict with applicable Delaware law. The award issued by the arbitrator shall be final and binding on\nthe parties, and judgment on the award may be entered in any court of competent jurisdiction. The fees and costs of the arbitrator and the arbitration\nand administrative fees shall be borne equally by the parties. Each party understands and agrees that this arbitration provision constitutes a waiver of\ntheir respective rights to adjudicate all claims in court and before a jury, and the parties are instead opting to arbitrate any such claims. All arbitration\nproceedings will be conducted in the Detroit metropolitan area. This arbitration provision explicitly replaces and supersedes any prior agreements\nbetween the parties concerning mediation or any other alternate dispute resolution.\n18. Headings and Construction. The headings of the Paragraphs are for convenience only and shall not control or affect the meaning or\nconstruction or limit the scope or intent of any of the provisions of this Agreement. The terms "and" and "or" herein shall each be interpreted to\ninclude the other, i.e. "and/or."\n19. Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement. A facsimile signature, whether by fax or other electronic form, shall be deemed an original\nand shall bind the signing Party\n20. Governing Law. All questions concerning the construction, validity and interpretation of this Agreement will be governed by and\nconstrued in accordance with the domestic laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or\nrule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State\nof Delaware. It is the intent of the parties that the provisions of this Agreement shall be interpreted to be consistent with provisions of Section 409A\nof the Internal Revenue Code.\n11\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.\nMASCO CORPORATION\nBy: /s/ Timothy Wadhams\nIts: President and CEO\n/s/ Donald J. DeMarie, Jr.\nConsultant\nDated: December 6, 2011.\n12\nLOGO\nJanuary 1, 2012\nMr. Donald J. DeMarie\n21001 Van Born Road\nTaylor, Michigan 48180\nDear Mr. DeMarie:\nUnder a Release and Consulting Agreement of even date herewith (the "Agreement"), you and Masco Corporation ("Company" or "Masco")\nhave agreed to a termination of your employment with Masco on January 1, 2012 and the commencement of a consulting relationship running from\nJanuary 1, 2012 through December 31, 2013 (the "Consulting Period"). In connection with that change in your employment relationship, this letter\nsets forth a modification to letters from Masco for Awards of restricted stock ("Grants") made prior to the date hereof for Masco's common stock\npursuant to Masco's 1991 and 2005 Long Term Stock Incentive Plans ("Stock Plans"). Terms which are capitalized herein and not otherwise defined,\nhave their meaning as defined in the Agreement.\n1) The letters making Options on and after February 16, 2000 in each case included an Appendix with the following language (for Options\nmade after December, 2008 the following language is included in the computerized text captioned "Terms and Conditions") (the "Clawback"):\nIf your employment with the Company [i.e., Masco] or any of its subsidiaries is terminated for any reason, other than death,\npermanent and total disability, retirement on or after normal retirement date or the sale or other disposition of the business or subsidiary\nemploying you, and other than termination of employment in connection with a Change in Control, and if any installments of the Option\nor any restoration options granted upon any exercise of the Option became exercisable within the two year period prior to the date of\nsuch termination (such installments and restoration options being referred to as the "Subject Options"), by accepting the Option you\nagree that the following provisions will apply:\n21001 VAN BORN ROAD\nTAYLOR, MICHIGAN 48180\n313-274-7400\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 2\n(1) Upon the demand of the Company you will pay to the Company in cash within 30 days after the date of such termination the\namount of income realized for income tax purposes from the exercise of any Subject Options, net of all federal, state and other\ntaxes payable on the amount of such income, plus all costs and expenses of the Company in any effort to enforce its rights\nhereunder; and\n(2) Any right you would otherwise have, pursuant to the terms of the Stock Plan and this Agreement, to exercise any Subject\nOptions on or after the date of such termination, shall be extinguished as of the date of such termination.\n2) Such letters granting Options and those letters making Grants on and after July 5, 2000 also included the following language in which you\nagreed not to become associated in any Prohibited Capacity in certain Business Activities (the "Non-Compete") and (in the second of the two\nparagraphs) requiring you to repay certain amounts to the Company if you breach or challenge such obligations (the "Recapture"). (For brevity,\nparagraphs from the Option Appendices (contained in "Terms and Conditions" in post-2008 Options) follow; paragraphs from the Grant Appendices\n(contained in "Terms and Conditions" in post-2008 Grants) are substantially identical except with appropriately changed reference to Grants rather\nthan Options, and are hereby incorporated by reference as if set forth herein):\nIn addition you agree, in consideration for the grant of the Option and regardless of whether the Option becomes exercisable or is\nexercised, while you are employed or retained as a consultant by the Company or any of its subsidiaries and for a period of one year following\nany termination of your employment and, if applicable, any consulting relationship with the Company or any of its subsidiaries other than a\ntermination in connection with a Change in Control, not to engage in, and not to become associated in a "Prohibited Capacity" (as hereinafter\ndefined) with any other entity engaged in, any "Business Activities" (as hereinafter defined) and not to encourage or assist others in\nencouraging any employee of the Company or any of its subsidiaries to terminate employment or to become engaged in any such Prohibited\nCapacity with an entity engaged in any Business Activities. "Business Activities" shall mean the design, development, manufacture, sale,\nmarketing or servicing of any product or providing of services competitive with the products or services of (x) the Company or any subsidiary\nif\nyou are employed by or consulting with the Company at any time the Option is outstanding, or (y) the subsidiary employing or retaining you\nat\nany time while the Option is outstanding, to the extent such competitive products or services are distributed or provided either (1) in the\nsame\ngeographic area as are such products or services of the Company or any of its subsidiaries, or (2) to any of the same customers as such\nproducts or services of the Company or any of its subsidiaries are distributed or provided. "Prohibited Capacity" shall mean being associated\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 3\nwith an entity as an employee, consultant, investor or another capacity where (1) confidential business information of the Company or any of\nits\nsubsidiaries could be used in fulfilling any of your duties or responsibilities with such other entity (2) any of your duties or responsibilities\nare similar to or include any of those you had while employed or retained as a consultant by the Company or any of its subsidiaries, or (3) an\ninvestment by you in such other entity represents more than 1% of such other entity's capital stock, partnership or other ownership interests.\nShould you either breach or challenge in judicial or arbitration proceedings the validity of any of the restrictions contained in the\npreceding paragraph, by accepting the Option you agree, independent of any equitable or legal remedies that the Company may have and\nwithout limiting the Company's right to any other equitable or legal remedies, to pay to the Company in cash immediately upon the demand\nof\nthe Company (1) the amount of income realized for income tax purposes from the exercise of any portion of the Option, and any restoration\noptions granted upon any exercise of the Option, net of all federal, state and other taxes payable on the amount of such income (and reduced by\nany amount already paid to the Company under the [paragraph containing the Clawback for Options]) but only to the extent such exercises\noccurred on or after your termination of employment or, if applicable, any consulting relationship with the Company or its subsidiary or within\nthe two year period prior to the date of such termination, plus (2) all costs and expenses of the Company in any effort to enforce its rights\nunder this or the preceding paragraph. The Company shall have the right to set off or withhold any amount owed to you by the Company or\nany of its subsidiaries or affiliates for any amount owed to the Company by you hereunder.\n3) In consideration of the mutual covenants and certain payments and other benefits to be received by you under this letter agreement\n("Letter") and under the Agreement, you and Masco hereby agree (i) Masco agrees to waive the Clawbacks, (ii) you agree that the Non-Compete\nparagraph (set forth above as the first paragraph quoted in Section 2) is hereby deleted in its entirety and is replaced by the following paragraphs (the\n"New Non-Compete"):\nIn order to protect the Company and its subsidiaries from your competitive use of the substantial Proprietary Information and goodwill gained\nby you in your employment and consulting relationships with the Company and its subsidiaries, you agree that during the Consulting Period,\nyou shall not, directly or indirectly: (a) engage in or assist in the design, development, evaluation, planning, manufacture, sale, or marketing of\nany products, technologies, or services that compete with or could displace those designed, sold, manufactured, designed, evaluated, marketed,\nplanned or developed by the Company (whether solely or in conjunction with other subsidiaries of the Company or their employees) at any\ntime during your employment with the Company or any subsidiary or consultation with the Company (the 'Business Activities'), whether such\nengagement is as an officer, director, proprietor, employee, partner, investor (other than as a holder of less than 1% of the outstanding capital\nstock of a publicly traded\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 4\ncorporation), consultant, advisor, agent or otherwise in any geographic areas in which the products, technologies, or services of the Company\nor any of its subsidiaries, are at that time distributed or planned to be distributed. Business Activities, include, but are not limited to the design,\ndevelopment, evaluation, manufacture, sale, planning and marketing of plumbing products, installation of insulation, windows, window\nframes, paint, cabinets, tub and shower enclosures, hardware, other building and home products or services, and all other products,\ntechnologies and services offered or sold by the Company or any of its subsidiaries; (b) be engaged (other than on behalf of the Company)\nwhether as an officer, director, proprietor, employee, partner, investor (other than as a holder of less than 1% of the outstanding capital stock of\na\npublicly traded corporation), consultant, advisor, agent or otherwise, (i) as a supplier to any customer with whom the Company or any of its\nsubsidiaries has done business during your employment or consultation with the Company or any of its subsidiaries or (ii) on behalf of any\ncustomer of, or supplier to, the Company or any of its subsidiaries, with whom the Company or any of its subsidiaries has done business\nduring your employment or consultation with the Company or any of its subsidiaries; (c) assist others in engaging in any of the Business\nActivities in the manner prohibited to you; or (d) induce employees of the Company or any of its subsidiaries to engage in any activities that\nare prohibited to you. In addition, during the Consulting Period and for a two-year period following the Consulting Period, you shall not,\ndirectly or indirectly: (e) knowingly induce employees of the Company or any of its subsidiaries to terminate their employment.\nIt is expressly understood and agreed that although you and the Company consider the restrictions contained in each of clauses (a) through\n(e) above reasonable for the purpose of preserving for the Company and its subsidiaries their good will, trade secrets, proprietary rights and\nongoing business value, if a final judicial determination is made by a court having jurisdiction that the time and territory or any other\nrestriction contained in the foregoing Paragraph is an unenforceable restriction on your activities, the provisions of the foregoing Paragraph\nshall not be rendered void but shall be deemed amended to apply as to such maximum time, territory and activities as such court may judicially\ndetermine or indicate to be reasonable;\n(iii) Masco agrees to the continued lapsing of restrictions on all of the shares under the Grants following your termination of employment; (iv) you\nacknowledge that the consideration conveyed to you by the continued lapsing of restrictions on Grants is good and sufficient consideration for the\nConsulting Services which are required of you under the Agreement, and that, among other Remedies provided upon breach as described in\nSection 7 of the Agreement, your breach of the Agreement or of the Grants or this Letter shall thereupon cause the termination of any further lapsing\nof\nrestrictions otherwise provided in subsection (iii) hereinabove; (v) you hereby specifically (and without limitation) acknowledge and agree to the\napplicability of subparagraphs (a), (b), (c) and (d) of the New Non-Compete during the Consulting Period and to the applicability of subparagraph\n(e) of the New Non-Compete during the Consulting Period and for a period of two years thereafter and, upon the breach of any such provisions\nof\nthe New Non-Compete during the respective periods, you agree, in addition to any other equitable or legal remedies that Masco may have and\nwithout limiting Masco's right to any\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 5\nother equitable or legal remedies, to pay to Masco in cash immediately upon the demand of Masco the amount of income realized for income\ntax\npurposes from (A) the exercise of any portion of any option granted under the Stock Plans, net of all federal, state and other taxes payable on the\namount of such income, but only to the extent such exercise occurred on or after your termination of employment and (B) income realized from any\ngrant of shares of Restricted Stock under the Stock Plans, net of all federal, state and other taxes payable on the amount of such income, but only\nto\nthe extent such income is realized from restrictions lapsing on shares (if any) within the two years after your termination of employment, plus in all\ncases all costs and expenses of Masco incurred in any effort to enforce its rights under this paragraph or under the New Non-Competes (or the Non-\nCompetes, with reference to any time prior to the date hereof). Masco shall have the right to set off or withhold any amount owed to you by Masco\nfor any amount owed by you hereunder.\n4)\nIn light of your position with the Company possessing non-public information, including with respect to our 2011 results of operations, and\nyour continuing relationship with the Company as a Consultant under the Agreement, you agree that you will comply with the provisions of the\nMasco Corporation Policy Against Trading on Inside Information so long as you are a Consultant under the Agreement, including that you will not\nengage in transactions in the Company's securities until the second day following the Company's release of its 2011 results of operations, expected\nto occur in the first quarter of 2012.\nIf you are in agreement with the foregoing, please evidence your agreement by signing and returning the enclosed duplicate copy of this Letter\nto the undersigned, whereupon (but no sooner than the time the Agreement shall become finally effective pursuant to its Paragraphs 14 and 15) the\nprovisions of this Letter shall become effective.\nVery truly yours,\n/s/ Timothy Wadhams\nTimothy Wadhams\nPresident and Chief Executive Officer\nAgreed:\n/s/ Donald D. Marie, Jr.\n/s/ December 6, 2011\nDonald J. DeMarie, Jr.\nDate	EX-10.J 11 d276684dex10j.htm NON-COMPETE, NON-DISCLOSURE, NON-DISPARAGEMENT, RELEASE AND\nCONSULTING AGREEMENT\nExhibit 10.j\nNON-COMPETE, NON-DISCLOSURE, NON-DISPARAGEMENT, RELEASE AND\nCONSULTING AGREEMENT\nThis Agreement is dated as of January 1, 2012 and is between Donald J. DeMarie, Jr. (the “Consultant”) and Masco Corporation (a Delaware\ncorporation), with a business address of 21001 Van Born Road, Taylor, MI 48180 (the “Company”).\nWHEREAS, Consultant has been the Executive Vice President and Chief Operating Officer for the Company, and\nWHEREAS, Consultant has established close business relationships with executives and other employees of the Company’s suppliers of\nmaterials and services used in the manufacture or sale of the Company’s products and services; and\nWHEREAS, Consultant has also established close business relationships with executives and other employees of the Company’s customers,\nincluding retailers, builders, wholesalers, distributors, dealers; and\nWHEREAS, Consultant has also established close business relationships with executives and other employees of investors, lenders and\nadvisors of the Company (both actual and prospective); and\nWHEREAS, Consultant has gained detailed knowledge of the Company’s operations, processes, finances, products, services and business and\nlegal strategies; and\nWHEREAS, the Company desires that, effective November 4, 2011 the Consultant be removed from his office as Executive Vice President and\nChief Operating Officer of the Company and all other offices and directorships he holds for any of the Company’s subsidiaries and affiliates, and that\neffective January 1, 2012 he be terminated from his employment with the Company and thereafter provide the Company, its subsidiaries and\naffiliates, with consulting services through December 31, 2013, and from time to time thereafter, all on the terms and conditions provided herein, and\nWHEREAS, the Consultant has been given the opportunity to review this Agreement, and has been advised to consult and has consulted legal\ncounsel to ascertain whether the Consultant has any potential rights or remedies which by the Consultant’s execution of this Agreement are waived\nand released, and\nWHEREAS, the Consultant and the Company, without any admission of liability, desire to settle with finality, compromise, dispose of, and\nrelease any claims and demands of the Consultant which have been or could be asserted, whether arising out of the Consultant’s employment by or\ntermination from the Company or otherwise;\nNOW THEREFORE, the parties agree as follows:\n1. Termination of Employment and Separation Benefits. Effective January 1, 2012 (“Termination Date”), Consultant’s employment\nwith the Company shall be terminated.\n(a) In consideration for the Release given by the Consultant in Paragraph 12 hereof, the Company agrees (i) to pay the Consultant $1,130,010\nin 15 installments of $75,334 each on or about the first of each of the months January, 2012 through March, 2013; to pay Consultant $499,995 in\nnine installments of $55,555 each on or about the first of each of the months April, 2013 through December, 2013; (iii) to pay the Consultant the sum\nof $16,200 as reimbursement for 18 months of COBRA health coverage, in monthly payments of $900 each during the initial 18 months following\nthe Termination Date; and (iv) to provide the Consultant outplacement services through a vendor selected by Consultant and paid by the Company;\nprovided, that the cost of such outplacement services will not exceed $50,000, which services shall be rendered, and payment therefor made, on or\nbefore December 31, 2013.\n(b) the Company agrees to pay the Consultant (i) an amount equal to any FY 2011 bonus he would have received as a continuing employee, at\nor about the same time as such bonuses may be paid to other Company and (ii)an amount equal to the fully vested value of any FY 2011\nperformance restricted stock award he would have received as a continuing employee, at or about the same time such awards may be granted to other\nCompany executives, in each such case on or before December 31, 2012.\n(c) the Consultant recognizes that the consideration to be provided pursuant to Paragraphs 1(a) and 1(b) is in each case stated as a gross\namount before applicable payroll tax withholding, and is in excess of any earned wages or benefits due and owing the Consultant by virtue of his\nemployment with the Company or otherwise.\n(d) Consultant agrees that he shall faithfully and continuously make himself available as an employee to render whatever services may be\nrequired of him by the Company at all times up to and including the Termination Date.\n(e) Consultant shall be paid for his four weeks’ 2012 vacation eligibility in cash promptly following the Termination Date.\n(f) The Consultant will be eligible, based on his being employed as of December 31, 2011, for a contribution (if declared generally by the\nCompany’s Compensation Committee) to the Company’s Future Service Profit Sharing Plan and the Benefits Restoration Plan based on those plans’\nprovisions.\n2. Duties During and After the Consulting Period.\n(a) During the Consulting Period (as hereinafter defined), the Consultant shall perform and discharge well and faithfully consulting services as\nmay be assigned to Consultant from time to time by the Company’s President and Chief Executive Officer, or any other officer or executive of\nMasco Corporation with oversight responsibility for the Company, or such other person as the President and Chief Executive Officer might designate\nin writing. Such services may include, but not be limited to:\n2\n(i) provision of information concerning the Consultant’s past activities or areas of experience or expertise;\n(ii) participation in phone calls or in meetings with representatives or attorneys of the Company or any of its subsidiaries or\nwith customers, vendors, or suppliers to the Company or any of its subsidiaries;\n(iii) the preparation of marketing studies or studies on competitive trends for the products or services sold by the Company or\nany of its subsidiaries;\n(iv) prompt assistance to, and full cooperation with, the Company in any Company investigation, or with respect to any\ndispute, or any administrative, regulatory or legal proceedings; and\n(v) active and completely focused participation in litigation as a trial witness, deponent, declarant or source of information,\nwithout requiring service of subpoena or other legal process, and when desired, in the Company’s sole discretion, by providing\nimmediate response to requests for assistance.\nAll such services shall be provided promptly and completely and shall involve the full cooperation and best efforts of the Consultant in order\nto meet the goals and direction of the Company, as such may be determined in the Company’s sole discretion. Such services are being significantly\ncompensated, and Consultant acknowledges that such efforts may require substantial time on an as-needed basis. In no event will the Consultant’s\nduties require the relocation of the Consultant from the Consultant’s then-current residence.\n(b) During the pendency of any litigation or other proceeding involving the Company, Consultant shall not communicate with anyone (other\nthan Consultant’s and Company’s attorneys) with respect to any facts relating to, or the subject matter of, any pending or potential litigation or\nregulatory or administrative proceeding involving the Company or any of its subsidiaries, except as directed by the Company or as required by\ncompulsory process or court order. Consultant acknowledges that the Company’s litigation strategies, and the Company’s and its subsidiaries’\nbusiness strategies and conduct which may be the subject of litigation, are highly confidential. In the event of such compulsory process or Court\norder, Consultant shall immediate notify the Company thereof and fully cooperate with the Company in any response thereto and related actions.\n(c) It is agreed that the Consultant shall be an independent contractor and shall not be the employee, servant, agent, partner or joint venturer of\nthe Company, or any of its officers, directors or employees. The Consultant has no authority to assume or create any obligation or liability, express or\nimplied, on behalf of the Company, or in the name of the Company or to bind the Company in any manner whatsoever.\n3\n(d) The Consultant shall devote such time, attention and energies to such services for the Company as the Company shall direct. The\nConsultant acknowledges that time is of the essence in the performance of such services, and Consultant’s failure to promptly, fully and completely\nprovide such services within the time desired by the Company shall constitute a material breach of this Agreement. The consulting services provided\nhereunder shall not exceed in any year twenty percent (20%) of the time the Consultant spent during 2011 while an employee of the Company.\n(e) Consultant shall make it clear to any prospective future employer, client, joint venturer or other recipient of his future services that\nConsultant has all of the foregoing obligations under this Agreement, and that any future provision of his services is subject to his fulfillment of such\nobligations.\n(f) Following the Consulting Period, Consultant will make himself available to the Company from time to time for additional consulting; in\nthis regard, both the Company and the Consultant will undertake their best efforts to assure that the Consultant will be able to perform such\nconsultancy as reasonably needed by the Company in a manner consistent with any other employment obligations possessed at that time by the\nConsultant as mutually agreed upon under a separate consulting relationship between the parties in the future. The parties expect that such consulting\nshall be limited in duration and may involve matters arising in the course of litigation either at trial or from appellate decisions.\n3. Term of Consulting Relationship. The consulting relationship under Paragraph 2 of this Agreement shall be for a period (the\n“Consulting Period”) commencing January 1, 2012, and ending December 31, 2013, unless sooner terminated by written notice of termination from\nthe Company in the event that (i) the Consultant has been convicted of or pled guilty or nolo contendere to a crime involving moral turpitude or a\ncrime providing for a term of imprisonment; or (ii) current alcohol or other substance abuse on the part of the Consultant (whether or not constituting\na crime, or the Consultant’s willful misconduct); or (iii) the Consultant’s failure to follow the instructions of the President and Chief Executive\nOfficer of the Company, or other officers or executives of the Company, or the Consultant’s neglect of duties, but in each such case only following\nwritten notice thereof; or (iv) the Consultant has breached any other obligation under this Agreement, the Stock Plans, the Awards, the Letter or the\nPlan (as hereinafter defined). If the Consulting Period is terminated for any of the reasons set forth in the preceding sentence, the rights of the\nConsultant under Paragraphs 1(a) and 1(b) and to the fees set forth in Paragraph 4 hereof shall cease on the date of such termination (and are subject\nto recovery by the Company as provided in paragraph 3(vi) of the Letter), and the Company shall have no further obligation to the Consultant under\nany of the provisions of this Agreement or the other referenced agreements. Termination shall not, however, affect the provisions of Paragraphs 5\nthrough 13 or 17 through 20, each of which shall survive any termination in accordance with their terms. Consultant’s termination of this Agreement\nwithout cause shall\n4\nconstitute a material breach of this Agreement. If the Consulting Period is terminated by reason of the Consultant’s death, to the extent then not paid\nto the Consultant, the payments under Paragraphs 1(a) and 1(b) and the fees set forth in Paragraph 4(a)(i) hereof shall be made to the Consultant’s\nestate. Survivor rights with respect to the fees described in Paragraph 4(a)(ii) shall be as determined under applicable beneficiary and other\nprovisions embodied in the Stock Plans and Awards as modified by the Letter.\n4. Consulting Period Compensation.\n(a) In full satisfaction for any and all services rendered by the Consultant hereunder, (i) during the period beginning January 1, 2012 and\nending December 31, 2013 the Consultant will be paid, on a monthly basis, a consulting fee in the gross amount of $2084.00 in consecutive monthly\ninstallments on or about the 15th of each month with respect to the immediately preceding month and (ii) the Consultant’s rights and obligations\nunder provisions of the Masco Corporation 1991 and 2005 Long Term Stock Incentive Plans (“Stock Plans”) and the Awards of restricted stock\nmade in letters previously issued to the Consultant pursuant to the Stock Plans (collectively, “Awards”) shall continue vesting following the\nTermination Date only in accordance with the provisions of the Stock Plans and Awards and that certain letter agreement between the Consultant and\nthe Company of even date herewith (“Letter”). Following the Consulting Period, for any consulting services rendered to the Company from time to\ntime, the Consultant shall be paid at a rate as agreed by the parties which shall be commensurate with the Consultant’s cash compensation as in effect\nduring 2011 as mutually agreed upon under a separate consulting relationship between the parties in the future.\n(b) The payments and extended stock vesting set forth in Paragraph 4(a)(i) and (ii) are given in consideration of both the Consultant’s services\nand the Consultant’s immediate on-call availability to perform such services when requested. In addition to such fees, the Company agrees to\nreimburse the Consultant for travel and reasonable living expenses away from the Consultant’s residence directly incurred by the Consultant at the\nCompany’s request in performing such services for the Company or as approved by the Company in advance. The Consultant agrees to keep\naccurate expense records in the form requested by the Company and to provide the Company with such records upon request.\n(c) Other than benefits accrued under the Company’s benefit plans through the Termination Date, and pursuant to that certain Supplemental\nExecutive Retirement Plan as described in the letter agreement dated July 1, 2006 as amended (the “Plan”), the Consultant shall not receive any\nother compensation from the Company nor shall he participate in or receive benefits under any of the Company’s employee fringe benefit programs\nor receive any other fringe benefits from the Company on account of services hereunder (including without limitation health, disability, life\ninsurance, retirement, pension and profit sharing benefits).\n5. Disclosure of Information. The Consultant acknowledges that the Company’s and its subsidiaries’ trade secrets, private or secret\nprocesses as they exist from time to time, and information concerning products, developments, manufacturing techniques, new\n5\nproduct plans, equipment, inventions, discoveries, patent applications, ideas, designs, engineering drawings, sketches, renderings, other drawings,\nmanufacturing and test data, computer programs, progress reports, materials, costs, specifications, processes, methods, research, procurement and\nsales activities and procedures, Company business strategies, litigation or legal strategies, promotion or pricing techniques or credit or financial data\nconcerning customers of the Company or its subsidiaries as well as information relating to the management, operation or planning of the Company\nor its subsidiaries which, in each such case, has not been made public (or, if made public, such disclosure must not have been made by the\nConsultant) (the “Proprietary Information”) are valuable, special and unique assets of the Company and its subsidiaries. In light of the highly\ncompetitive nature of the industries in which the Company and its subsidiaries conduct their businesses, the Consultant agrees that all Proprietary\nInformation heretofore or in the future obtained by the Consultant as a result of the Consultant’s relationship with the Company and its subsidiaries\nshall be considered confidential. In recognition of this fact, the Consultant agrees that he will, during and after the Consulting Period, keep the\nProprietary Information strictly confidential, will not disclose any of such Proprietary Information to any person or entity for any reason or purpose\nwhatsoever (except as directed by the Company), and he will not make use of any Proprietary Information for his own purposes or for the benefit of\nany other person or entity (except the Company and its subsidiaries) under any circumstances.\n6. Non-Competition. In order to protect the Company and its subsidiaries from the Consultant’s competitive use of the substantial\nProprietary Information and goodwill gained by the Consultant in his employment and consulting relationships with the Company and its\nsubsidiaries, the Consultant agrees that during the Consulting Period Consultant shall not, directly or indirectly:\n(a) Engage in or assist in the design, development, evaluation, planning, manufacture, sale, or marketing of any products,\ntechnologies, or services that compete with or could displace those designed, sold, manufactured, designed, evaluated, marketed,\nplanned or developed by the Company (whether solely or in conjunction with other subsidiaries of the Company or their\nemployees) at any time during the Consultant’s employment with the Company or any subsidiary or consultation with the\nCompany (the ‘Business Activities’), whether such engagement is as an officer, director, proprietor, employee, partner, investor\n(other than as a holder of less than 1% of the outstanding capital stock of a publicly traded corporation), consultant, advisor, agent\nor otherwise in any geographic areas in which the products, technologies, or services of the Company or any of its subsidiaries,\nare at that time distributed or planned to be distributed. Business Activities, include, but are not limited to, the design,\ndevelopment, evaluation, manufacture, sale, planning and marketing of plumbing products, installation of insulation, windows,\nwindow frames, paint, cabinets, tub and shower enclosures, hardware, other building and home products or services, and all other\nproducts, technologies and services offered or sold by the Company or any of its subsidiaries;\n6\n(b) Be engaged (other than on behalf of the Company) whether as an officer, director, proprietor, employee, partner, investor (other\nthan as a holder of less than 1% of the outstanding capital stock of a publicly traded corporation), consultant, advisor, agent or\notherwise, (i) as a supplier to any customer with whom the Company or any of its subsidiaries has done business during\nConsultant’s employment or consultation with the Company or any of its subsidiaries; or (ii) on behalf of any customer of, or\nsupplier to, the Company or any of its subsidiaries, with whom the Company or any of its subsidiaries has done business during\nConsultant’s employment or consultation with the Company or any of its subsidiaries;\n(c) Assist others in engaging in any of the Business Activities in the manner prohibited to the Consultant; or\n(d) Induce employees of the Company or any of its subsidiaries to engage in any activities that are prohibited to the Consultant.\nIn addition, during the Consulting Period and for a two-year period following the Consulting Period, the Consultant shall not, directly or\nindirectly:\n(e) Knowingly induce employees of the Company or any of its subsidiaries to terminate their employment.\nIt is expressly understood and agreed that although the Consultant and the Company consider the restrictions contained in each of clauses (a) through\n(e) above reasonable for the purpose of preserving for the Company and its subsidiaries their good will, trade secrets, proprietary rights and ongoing\nbusiness value, if a final judicial determination is made by a court having jurisdiction that the time and territory or any other restriction contained in\nthis Paragraph is an unenforceable restriction on the activities of the Consultant, the provisions of this Paragraph shall not be rendered void but shall\nbe deemed amended to apply as to such maximum time, territory and activities as such court may judicially determine or indicate to be reasonable.\n7. Remedies.\n(a) The Consultant acknowledges and agrees that the Company’s remedy at law for a breach or threatened breach of any of the provisions of\nParagraphs 5 or 6 of this Agreement would be inadequate and, in recognition of this fact, in the event of a breach by the Consultant of any of the\nprovisions of Paragraphs 5 or 6 of this Agreement, the Consultant agrees that, in addition to the Company’s other remedies at law, at the Company’s\noption, all rights of the Consultant under this Agreement, the Stock Plans, the Awards, the Letter and the Plan may be terminated, and the Company\nshall be entitled without posting any bond to obtain, and the Consultant agrees not to oppose (except to the extent that Consultant maintains that he\ndid not, in fact, engage in any activity in breach of this Agreement) a request for, equitable relief in the form of specific performance, temporary\nrestraining order, temporary or permanent injunction or any other equitable remedy which may then be available, relating to the conduct prohibited\n7\nunder either paragraphs 5 or 6 hereof. The Consultant acknowledges that the granting of a temporary injunction, temporary restraining order or\npermanent injunction merely prohibiting the use of Proprietary Information would not be an adequate remedy upon breach or threatened breach\nhereof. Nothing herein contained shall be construed as prohibiting the Company from pursuing, in addition, any other remedies available to it for\nsuch (or any other) breach or threatened breach.\n(b) In addition to the remedies set forth herein or available to the Company, if Consultant, in Company’s good faith judgment, reasonably\nexercised, at any time during the Consulting Period (and, with respect to breaches of Paragraph 6(e) at any time during the Consulting Period and\ntwo-year period following the Consulting Period), breaches any obligation under this Agreement, the Stock Plans, the Awards, the Letter or the Plan,\nthe Company may immediately terminate any remaining payments and the provision of any other benefits which might otherwise be required this\nAgreement, the Stock Plans, the Awards, the Letter or the Plan, or otherwise due Consultant. Upon any breach, the Company may also recover from\nthe Consultant any payments made under Paragraphs 1(a) and 1(b) hereof (except for the payments described in 1(a)(iii) and 1(a)(iv)), together with\nany proceeds from exercise of any Options or sale of Restricted Stock for which restrictions have lapsed at any time within two years following the\nTermination Date, in each case (cash and stock) net of any state and federal income taxes paid by Consultant. The Company may also recover all\ncost and expenses incurred in any efforts to enforce its rights under this Agreement. The Company shall have the right to set off any amount owed to\nConsultant against any amount owed by Consultant hereunder.\n8. Notices. Any notice required or permitted to be given under this Agreement shall be deemed properly given if in writing and delivered\nby hand and receipt is acknowledged by the party to whom said notice shall be directed, or if mailed by certified or registered mail, postage prepaid\nwith return receipt requested, or sent by express courier service, charges prepaid by shipper, to the addresses of each party stated above and, in the\ncase of notices to the Company, to the attention of its General Counsel at Masco Corporation, 21001 Van Born Road, Taylor, Michigan 48180 (or to\nsuch other address as a party is directed pursuant to written notice from the other party).\n9. Assignment. This Agreement shall not be assignable by either party except by the Company to any subsidiary or affiliate of the\nCompany or to any successor in interest to the Company’s business, and shall be binding upon the Company in the case of any change in control or\nalternate change in control as defined in the Plan.\n10. Entire Agreement. This instrument and the Stock Plans, the Awards, the Letter and the Plan contain the entire agreements of the\nparties relating to the subject of consulting and termination of Consultant’s employment, supersede and replace in their entirety any existing\nemployment agreement or consulting agreement of the Consultant and may not be waived, changed, modified, extended or discharged orally but\nonly by agreement in writing signed by the party against whom enforcement of any such waiver, change, modification, extension or discharge is\nsought. The waiver by the Company of a breach of any provision of this Agreement by the Consultant shall not operate or be construed as a waiver\nof a breach of any other provision or of any subsequent breach by the Consultant.\n8\n11. No Disparagement. Each of the parties agrees not to criticize, disparage or otherwise demean in any way the other or Company’s\naffiliates or their respective products, services, technologies, officers, directors or employees.\n12. RELEASE .\n(a) In consideration of the payments to be made and the agreements and consideration provided by the Company hereunder and the\ncovenants contained in the Letter, Consultant, on Consultant’s own behalf and on behalf of Consultant’s heirs, executors, agents, successors\nand assigns, releases and forever discharges the Company, its subsidiaries and affiliates and their respective officers, agents, current and\nformer employees, successors, predecessors and assigns and any other person, firm, corporation or legal entity in any way related to the\nCompany or its subsidiaries and affiliates (the “Released Parties”), of and from all claims, demands, actions, causes of action, statutory\nrights, duties, debts, sums of money, suits, reckonings, contracts, agreements, controversies, promises, damages, obligations, responsibilities,\nliabilities and accounts of whatsoever kind, nature or description, direct or indirect, in law or in equity, in contract or in tort or otherwise,\nwhich Consultant ever had or which Consultant now has or hereafter can, shall or may have, against any of the Released Parties, for or by\nreason of any matter, cause, or thing whatsoever up to the present time, whether known or unknown, suspected or unsuspected at the\npresent time, or which may be based upon pre-existing acts, claims or events occurring at any time up to the date hereof which may result in\nfuture damages, including without limitation all direct or indirect claims either for direct or consequential damages of any kind whatsoever\nand rights or claims arising under Title VII, any state civil-rights legislation, claims of handicap discrimination, claims relating to the\ntermination of employment as referred to herein, and claims of age discrimination under the Age Discrimination in Employment Act of\n1967, as amended (ADEA), against any of the Released Parties, other than (a) claims arising under the express provisions of this Agreement,\n(b) the right to receive benefits accrued through the end of the employment period under the Company’s benefit plans and (c) claims arising\nunder any applicable worker’s compensation statute. It is the intention of the parties that this general release by the Consultant will be\nconstrued as broadly as possible.\n(b) Consultant has: (i) the sole right, title, and interest to the claims released under this Agreement, (ii) neither assigned or transferred, nor\npurported to assign or transfer, to any person or entity, any claim released by this Agreement, and (iii) neither assigned or transferred, nor purported\nto assign or transfer, to any person or entity, the right to the monies, in whole or in part, being paid pursuant to this Agreement.\n9\n13. Non-Disclosure. Other than to the extent required to perform consulting services hereunder, or as required by applicable securities\nlaws, until such time as this Agreement becomes publicly disclosed by the Company in its required securities filings or otherwise, Consultant shall\nnot disclose the fact of this Agreement or any of its terms to any third parties other than to Consultant’s ex-spouse, tax and financial advisors, banks,\ncreditors, attorneys, significant other and children, each of whom, in turn shall be bound by this paragraph not to further disclose this Agreement.\nConsultant agrees that any violation of this confidentiality provision will result in substantial and irreparable injury to Company. In the event of such\na violation, in addition to the Company’s right to terminate any further payment or benefits as permitted under Paragraph 7, Consultant will also be\nliable to Company for such economic damages and equitable relief as a Court may deem appropriate.\n14. Execution and Revocation. (a) This Agreement was first communicated to Consultant on November 5, 2011. Consultant is not\nrequired to, but may, accept this Agreement by signing and dating this Agreement on or before December 6, 2011 which is in excess of twenty-one\n(21) days from the date this Agreement was first communicated to Consultant.\n(b) Consultant understands that this Agreement may be revoked by him for a period of seven (7) calendar days following his execution of this\nAgreement. The Agreement is not effective until this revocation period has expired. Consultant understands that any revocation to be effective must\nbe in writing and either postmarked within seven (7) days of the execution of this Agreement and addressed to Chuck Greenwood, Vice President—\nHuman Resources, Masco Corporation, 21001 Van Born Road, Taylor, Michigan 48180 or hand delivered within seven (7) days to Chuck\nGreenwood at the address listed above. If revocation is by mail, certified mail, return receipt requested is required to show proof of mailing.\n15. No Payment. No payments or benefits under this Agreement shall be made to Consultant until the seven (7) day revocation period\nhas expired. If Consultant does not revoke this Agreement within the seven (7) day revocation period, then this Agreement shall become binding on\nthe Company and Consultant as otherwise provided herein, and the payments and benefits provided in Paragraph 1 will commence.\n16. Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid\nunder applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or\nrule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement\nwill be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained in this\nAgreement, while giving maximum effort to the intent of the parties as reflected in this Agreement.\n10\n17. Arbitration. The parties hereto agree that arbitration will be the sole and exclusive remedy for any claims which may arise between\nthe parties (other than requests by the Company for immediate or preliminary injunctive relief) in any way relating to this Agreement or for the\nbreach thereof. All such claims shall be submitted to arbitration in accordance with the applicable arbitration rules of the American Arbitration\nAssociation (“AAA”), except as those rules conflict with applicable Delaware law. The award issued by the arbitrator shall be final and binding on\nthe parties, and judgment on the award may be entered in any court of competent jurisdiction. The fees and costs of the arbitrator and the arbitration\nand administrative fees shall be borne equally by the parties. Each party understands and agrees that this arbitration provision constitutes a waiver of\ntheir respective rights to adjudicate all claims in court and before a jury, and the parties are instead opting to arbitrate any such claims. All arbitration\nproceedings will be conducted in the Detroit metropolitan area. This arbitration provision explicitly replaces and supersedes any prior agreements\nbetween the parties concerning mediation or any other alternate dispute resolution.\n18. Headings and Construction. The headings of the Paragraphs are for convenience only and shall not control or affect the meaning or\nconstruction or limit the scope or intent of any of the provisions of this Agreement. The terms “and” and “or” herein shall each be interpreted to\ninclude the other, i.e. “and/or.”\n19. Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement. A facsimile signature, whether by fax or other electronic form, shall be deemed an original\nand shall bind the signing Party\n20. Governing Law. All questions concerning the construction, validity and interpretation of this Agreement will be governed by and\nconstrued in accordance with the domestic laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or\nrule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State\nof Delaware. It is the intent of the parties that the provisions of this Agreement shall be interpreted to be consistent with provisions of Section 409A\nof the Internal Revenue Code.\n11\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.\nMASCO CORPORATION\nBy: /s/ Timothy Wadhams\nIts: President and CEO\n/s/ Donald J. DeMarie, Jr.\nConsultant\nDated: December 6, 2011.\n12\nLOGO\nJanuary 1, 2012\nMr. Donald J. DeMarie\n21001 Van Born Road\nTaylor, Michigan 48180\nDear Mr. DeMarie:\nUnder a Release and Consulting Agreement of even date herewith (the “Agreement”), you and Masco Corporation (“Company” or “Masco”)\nhave agreed to a termination of your employment with Masco on January 1, 2012 and the commencement of a consulting relationship running from\nJanuary 1, 2012 through December 31, 2013 (the “Consulting Period”). In connection with that change in your employment relationship, this letter\nsets forth a modification to letters from Masco for Awards of restricted stock (“Grants”) made prior to the date hereof for Masco’s common stock\npursuant to Masco’s 1991 and 2005 Long Term Stock Incentive Plans (“Stock Plans”). Terms which are capitalized herein and not otherwise defined,\nhave their meaning as defined in the Agreement.\n1) The letters making Options on and after February 16, 2000 in each case included an Appendix with the following language (for Options\nmade after December, 2008 the following language is included in the computerized text captioned “Terms and Conditions”) (the “Clawback”):\nIf your employment with the Company [i.e., Masco] or any of its subsidiaries is terminated for any reason, other than death,\npermanent and total disability, retirement on or after normal retirement date or the sale or other disposition of the business or subsidiary\nemploying you, and other than termination of employment in connection with a Change in Control, and if any installments of the Option\nor any restoration options granted upon any exercise of the Option became exercisable within the two year period prior to the date of\nsuch termination (such installments and restoration options being referred to as the “Subject Options”), by accepting the Option you\nagree that the following provisions will apply:\n21001 VAN BORN ROAD\nTAYLOR, MICHIGAN 48180\n313-274-7400\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 2\n(1) Upon the demand of the Company you will pay to the Company in cash within 30 days after the date of such termination the\namount of income realized for income tax purposes from the exercise of any Subject Options, net of all federal, state and other\ntaxes payable on the amount of such income, plus all costs and expenses of the Company in any effort to enforce its rights\nhereunder; and\n(2) Any right you would otherwise have, pursuant to the terms of the Stock Plan and this Agreement, to exercise any Subject\nOptions on or after the date of such termination, shall be extinguished as of the date of such termination.\n2) Such letters granting Options and those letters making Grants on and after July 5, 2000 also included the following language in which you\nagreed not to become associated in any Prohibited Capacity in certain Business Activities (the “Non-Compete”) and (in the second of the two\nparagraphs) requiring you to repay certain amounts to the Company if you breach or challenge such obligations (the “Recapture”). (For brevity,\nparagraphs from the Option Appendices (contained in “Terms and Conditions” in post-2008 Options) follow; paragraphs from the Grant Appendices\n(contained in “Terms and Conditions” in post-2008 Grants) are substantially identical except with appropriately changed reference to Grants rather\nthan Options, and are hereby incorporated by reference as if set forth herein):\nIn addition you agree, in consideration for the grant of the Option and regardless of whether the Option becomes exercisable or is\nexercised, while you are employed or retained as a consultant by the Company or any of its subsidiaries and for a period of one year following\nany termination of your employment and, if applicable, any consulting relationship with the Company or any of its subsidiaries other than a\ntermination in connection with a Change in Control, not to engage in, and not to become associated in a “Prohibited Capacity” (as hereinafter\ndefined) with any other entity engaged in, any “Business Activities” (as hereinafter defined) and not to encourage or assist others in\nencouraging any employee of the Company or any of its subsidiaries to terminate employment or to become engaged in any such Prohibited\nCapacity with an entity engaged in any Business Activities. “Business Activities” shall mean the design, development, manufacture, sale,\nmarketing or servicing of any product or providing of services competitive with the products or services of (x) the Company or any subsidiary\nif you are employed by or consulting with the Company at any time the Option is outstanding, or (y) the subsidiary employing or retaining you\nat any time while the Option is outstanding, to the extent such competitive products or services are distributed or provided either (1) in the\nsame geographic area as are such products or services of the Company or any of its subsidiaries, or (2) to any of the same customers as such\nproducts or services of the Company or any of its subsidiaries are distributed or provided. “Prohibited Capacity” shall mean being associated\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 3\nwith an entity as an employee, consultant, investor or another capacity where (1) confidential business information of the Company or any of\nits subsidiaries could be used in fulfilling any of your duties or responsibilities with such other entity, (2) any of your duties or responsibilities\nare similar to or include any of those you had while employed or retained as a consultant by the Company or any of its subsidiaries, or (3) an\ninvestment by you in such other entity represents more than 1% of such other entity’s capital stock, partnership or other ownership interests.\nShould you either breach or challenge in judicial or arbitration proceedings the validity of any of the restrictions contained in the\npreceding paragraph, by accepting the Option you agree, independent of any equitable or legal remedies that the Company may have and\nwithout limiting the Company’s right to any other equitable or legal remedies, to pay to the Company in cash immediately upon the demand of\nthe Company (1) the amount of income realized for income tax purposes from the exercise of any portion of the Option, and any restoration\noptions granted upon any exercise of the Option, net of all federal, state and other taxes payable on the amount of such income (and reduced by\nany amount already paid to the Company under the [paragraph containing the Clawback for Options]) but only to the extent such exercises\noccurred on or after your termination of employment or, if applicable, any consulting relationship with the Company or its subsidiary or within\nthe two year period prior to the date of such termination, plus (2) all costs and expenses of the Company in any effort to enforce its rights\nunder this or the preceding paragraph. The Company shall have the right to set off or withhold any amount owed to you by the Company or\nany of its subsidiaries or affiliates for any amount owed to the Company by you hereunder.\n3) In consideration of the mutual covenants and certain payments and other benefits to be received by you under this letter agreement\n(“Letter”) and under the Agreement, you and Masco hereby agree (i) Masco agrees to waive the Clawbacks, (ii) you agree that the Non-Compete\nparagraph (set forth above as the first paragraph quoted in Section 2) is hereby deleted in its entirety and is replaced by the following paragraphs (the\n“New Non-Compete”):\nIn order to protect the Company and its subsidiaries from your competitive use of the substantial Proprietary Information and goodwill gained\nby you in your employment and consulting relationships with the Company and its subsidiaries, you agree that during the Consulting Period,\nyou shall not, directly or indirectly: (a) engage in or assist in the design, development, evaluation, planning, manufacture, sale, or marketing of\nany products, technologies, or services that compete with or could displace those designed, sold, manufactured, designed, evaluated, marketed,\nplanned or developed by the Company (whether solely or in conjunction with other subsidiaries of the Company or their employees) at any\ntime during your employment with the Company or any subsidiary or consultation with the Company (the ‘Business Activities’), whether such\nengagement is as an officer, director, proprietor, employee, partner, investor (other than as a holder of less than 1% of the outstanding capital\nstock of a publicly traded\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 4\ncorporation), consultant, advisor, agent or otherwise in any geographic areas in which the products, technologies, or services of the Company\nor any of its subsidiaries, are at that time distributed or planned to be distributed. Business Activities, include, but are not limited to the design,\ndevelopment, evaluation, manufacture, sale, planning and marketing of plumbing products, installation of insulation, windows, window\nframes, paint, cabinets, tub and shower enclosures, hardware, other building and home products or services, and all other products,\ntechnologies and services offered or sold by the Company or any of its subsidiaries; (b) be engaged (other than on behalf of the Company)\nwhether as an officer, director, proprietor, employee, partner, investor (other than as a holder of less than 1% of the outstanding capital stock of\na publicly traded corporation), consultant, advisor, agent or otherwise, (i) as a supplier to any customer with whom the Company or any of its\nsubsidiaries has done business during your employment or consultation with the Company or any of its subsidiaries or (ii) on behalf of any\ncustomer of, or supplier to, the Company or any of its subsidiaries, with whom the Company or any of its subsidiaries has done business\nduring your employment or consultation with the Company or any of its subsidiaries; (c) assist others in engaging in any of the Business\nActivities in the manner prohibited to you; or (d) induce employees of the Company or any of its subsidiaries to engage in any activities that\nare prohibited to you. In addition, during the Consulting Period and for a two-year period following the Consulting Period, you shall not,\ndirectly or indirectly: (e) knowingly induce employees of the Company or any of its subsidiaries to terminate their employment.\nIt is expressly understood and agreed that although you and the Company consider the restrictions contained in each of clauses (a) through\n(e) above reasonable for the purpose of preserving for the Company and its subsidiaries their good will, trade secrets, proprietary rights and\nongoing business value, if a final judicial determination is made by a court having jurisdiction that the time and territory or any other\nrestriction contained in the foregoing Paragraph is an unenforceable restriction on your activities, the provisions of the foregoing Paragraph\nshall not be rendered void but shall be deemed amended to apply as to such maximum time, territory and activities as such court may judicially\ndetermine or indicate to be reasonable;\n(iii) Masco agrees to the continued lapsing of restrictions on all of the shares under the Grants following your termination of employment; (iv) you\nacknowledge that the consideration conveyed to you by the continued lapsing of restrictions on Grants is good and sufficient consideration for the\nConsulting Services which are required of you under the Agreement, and that, among other Remedies provided upon breach as described in\nSection 7 of the Agreement, your breach of the Agreement or of the Grants or this Letter shall thereupon cause the termination of any further lapsing\nof restrictions otherwise provided in subsection (iii) hereinabove; (v) you hereby specifically (and without limitation) acknowledge and agree to the\napplicability of subparagraphs (a), (b), (c) and (d) of the New Non-Compete during the Consulting Period and to the applicability of subparagraph\n(e) of the New Non-Compete during the Consulting Period and for a period of two years thereafter and, upon the breach of any such provisions of\nthe New Non-Compete during the respective periods, you agree, in addition to any other equitable or legal remedies that Masco may have and\nwithout limiting Masco’s right to any\nMr. Donald J. DeMarie\nJanuary 1, 2012\nPage 5\nother equitable or legal remedies, to pay to Masco in cash immediately upon the demand of Masco the amount of income realized for income tax\npurposes from (A) the exercise of any portion of any option granted under the Stock Plans, net of all federal, state and other taxes payable on the\namount of such income, but only to the extent such exercise occurred on or after your termination of employment and (B) income realized from any\ngrant of shares of Restricted Stock under the Stock Plans, net of all federal, state and other taxes payable on the amount of such income, but only to\nthe extent such income is realized from restrictions lapsing on shares (if any) within the two years after your termination of employment, plus in all\ncases all costs and expenses of Masco incurred in any effort to enforce its rights under this paragraph or under the New Non-Competes (or the Non-\nCompetes, with reference to any time prior to the date hereof). Masco shall have the right to set off or withhold any amount owed to you by Masco\nfor any amount owed by you hereunder.\n4) In light of your position with the Company possessing non-public information, including with respect to our 2011 results of operations, and\nyour continuing relationship with the Company as a Consultant under the Agreement, you agree that you will comply with the provisions of the\nMasco Corporation Policy Against Trading on Inside Information so long as you are a Consultant under the Agreement, including that you will not\nengage in transactions in the Company’s securities until the second day following the Company’s release of its 2011 results of operations, expected\nto occur in the first quarter of 2012.\nIf you are in agreement with the foregoing, please evidence your agreement by signing and returning the enclosed duplicate copy of this Letter\nto the undersigned, whereupon (but no sooner than the time the Agreement shall become finally effective pursuant to its Paragraphs 14 and 15) the\nprovisions of this Letter shall become effective.\nVery truly yours,\n/s/ Timothy Wadhams\nTimothy Wadhams\nPresident and Chief Executive Officer\nAgreed:\n/s/ Donald D. Marie, Jr.\n/s/ December 6, 2011\nDonald J. DeMarie, Jr.\nDate
+10b162a253bd1e2266473c70ddeb7b05.pdf	effective_date jurisdiction party term	EX-99.(D)(2)(B) 19 dex99d2b.htm NONDISCLOSURE AGREEMENT\nExhibit (d)(2)(B)\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement is made and entered into as of June 25, 2008, by and between Superior Essex Inc. (“Superior Essex”) and LS Cable\nLtd. (“LS Cable”).\n1. Purpose. Superior Essex and LS Cable have entered into a non-disclosure agreement dated April 22, 2008 (the “SEI NDA”) and an Agreement\nand Plan of Merger, dated as of June 11, 2008 (the “Merger Agreement”). In connection with its obligations under the Merger Agreement,\nincluding obtaining debt and equity financing and consents, approvals, waivers and amendments of existing debt agreements (the\n“Financing”), and the consummation of the transactions contemplated by the Merger Agreement, including merger integration planning\nactivities (the “Transactions”), LS Cable may disclose to Superior Essex certain confidential information which LS Cable desires Superior\nEssex to treat as confidential (the “Confidential Information”). Capitalized terms used but not defined herein shall have the meanings ascribed\nin the Merger Agreement. Confidential Information does not include any information which: (a) is or becomes generally available to the public\nother than as a result of a disclosure by Superior Essex in violation of this agreement; (b) is already in the possession of Superior Essex on a\nnon-confidential basis; (c) is obtained by Superior Essex from a third party; provided that the third party was not known by Superior Essex to\nbe bound by an obligation of confidentiality to the source of the information; (d) is independently developed by Superior Essex without use of\nthe Confidential Information; or (e) is required by law to be disclosed.\n2. Non-use and Non-disclosure. Superior Essex agrees not to use any Confidential Information for any purpose except in connection with the\nFinancing and the Transactions. Superior Essex agrees to treat the Confidential Information strictly confidential and not disclose it, except to\nthose of its Representatives (as defined in the Confidentiality Agreement) who are required to have the information in connection with the\nFinancing or the Transactions.\n3. Term. This agreement shall become effective as of the date written below and shall continue until the earlier of (i) the Effective Time or (ii) a\nperiod of 2 years from the date hereof, unless earlier terminated by mutual agreement of the parties hereto.\n4. General. This agreement shall be governed and construed in accordance with the laws of the State of New York applicable to agreements made\nand to be performed entirely within New York. This agreement, the Confidentiality Agreement and the Merger Agreement shall constitute the\nentire agreement between us with regard to the subject matter hereof; provided that if there is any conflict between the provisions of this\nagreement and the provisions of the Merger Agreement or the Confidentiality Agreement, the terms of the Merger Agreement and the\nConfidentiality Agreement shall govern. No modification, amendment or waiver shall be binding without the written consent of each of the\nparties hereto. This agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the parties\nhereto. This agreement may be signed by facsimile and in one or more counterparts, each of which shall be deemed an original but all of which\nshall be deemed to constitute a single instrument.\n5. Financing Sources. In connection with the Financing and the Transactions, any Representatives of Superior Essex or LS Cable may disclose\nEvaluation Material (as defined in the Confidentiality Agreement) or Confidential Information to other of its Representatives, or\nRepresentatives of the other party, so long as the receiving Representative is bound by obligations of confidentiality on substantially the same\nterms as provided in the Confidentiality Agreement (with respect to Representatives of LS Cable) or this agreement (with respect to\nRepresentatives of Superior Essex), provided that under the Confidentiality Agreement, the term “Transaction” shall include the Financing.\nIN WITNESS WHEREOF, the parties hereto have duly executed this agreement as of the date written above.\nSUPERIOR ESSEX INC.\nLS CABLE LTD.\nBy:\n/s/ David S. Aldridge\nBy:\n/s/ Choong-hyun Kim\nPrinted Name: David S. Aldridge\nPrinted Name: Choong-hyun Kim\nTitle:\nEVP and CFO\nTitle:\nSenior Vice President	EX-99.(D)(2)(B) 19 dex99d2b.htm NONDISCLOSURE AGREEMENT Exhibit (d)(2)(B)\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement is made and entered into as of June 25, 2008, by and between Superior Essex Inc. (“Superior Essex”) and LS Cable Ltd. (“LS Cable”). 1. Purpose. Superior Essex and LS Cable have entered into a non-disclosure agreement dated April 22, 2008 (the “SEI NDA”) and an Agreement\nand Plan of Merger, dated as of June 11, 2008 (the “Merger Agreement”). In connection with its obligations under the Merger Agreement,\nincluding obtaining debt and equity financing and consents, approvals, waivers and amendments of existing debt agreements (the\n“Financing”), and the consummation of the transactions contemplated by the Merger Agreement, including merger integration planning\nactivities (the “Transactions”), LS Cable may disclose to Superior Essex certain confidential information which LS Cable desires Superior\nEssex to treat as confidential (the “Confidential Information™). Capitalized terms used but not defined herein shall have the meanings ascribed\nin the Merger Agreement. Confidential Information does not include any information which: (a) is or becomes generally available to the public\nother than as a result of a disclosure by Superior Essex in violation of this agreement; (b) is already in the possession of Superior Essex on a\nnon-confidential basis; (c) is obtained by Superior Essex from a third party; provided that the third party was not known by Superior Essex to\nbe bound by an obligation of confidentiality to the source of the information; (d) is independently developed by Superior Essex without use of\nthe Confidential Information; or (e) is required by law to be disclosed.\nNon-use and Non-disclosure. Superior Essex agrees not to use any Confidential Information for any purpose except in connection with the\nFinancing and the Transactions. Superior Essex agrees to treat the Confidential Information strictly confidential and not disclose it, except to\nthose of its Representatives (as defined in the Confidentiality Agreement) who are required to have the information in connection with the\nFinancing or the Transactions.\nTerm. This agreement shall become effective as of the date written below and shall continue until the earlier of (i) the Effective Time or (ii) a\nperiod of 2 years from the date hereof, unless earlier terminated by mutual agreement of the parties hereto.\nGeneral. This agreement shall be governed and construed in accordance with the laws of the State of New York applicable to agreements made\nand to be performed entirely within New York. This agreement, the Confidentiality Agreement and the Merger Agreement shall constitute the\nentire agreement between us with regard to the subject matter hereof; provided that if there is any conflict between the provisions of this\nagreement and the provisions of the Merger Agreement or the Confidentiality Agreement, the terms of the Merger Agreement and the\nConfidentiality Agreement shall govern. No modification, amendment or waiver shall be binding without the written consent of each of the\nparties hereto. This agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the parties\nhereto. This agreement may be signed by facsimile and in one or more counterparts, each of which shall be deemed an original but all of which\nshall be deemed to constitute a single instrument.\nFinancing Sources. In connection with the Financing and the Transactions, any Representatives of Superior Essex or LS Cable may disclose\nEvaluation Material (as defined in the Confidentiality Agreement) or Confidential Information to other of its Representatives, or\nRepresentatives of the other party, so long as the receiving Representative is bound by obligations of confidentiality on substantially the same\nterms as provided in the Confidentiality Agreement (with respect to Representatives of LS Cable) or this agreement (with respect to\nRepresentatives of Superior Essex), provided that under the Confidentiality Agreement, the term “Transaction” shall include the Financing.\n \nIN WITNESS WHEREOF, the parties hereto have duly executed this agreement as of the date written above.\nSUPERIOR ESSEX INC. LS CABLE LTD.\nBy: /s/ David S. Aldridge By: /s/ Choong-hyun Kim\nPrinted Name: David S. Aldridge Printed Name: Choong-hyun Kim\nTitle: EVP and CFO Title: Senior Vice President	EX-99.(D)(2)(B) 19 dex99d2b.htm NONDISCLOSURE AGREEMENT\nExhibit (d)(2)(B)\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement is made and entered into as of June 25, 2008, by and between Superior Essex Inc. ("Superior Essex") and LS Cable\nLtd. ("LS Cable").\n1.\nPurpose. Superior Essex and LS Cable have entered into a non-disclosure agreement dated April 22, 2008 (the "SEI NDA") and an Agreement\nand Plan of Merger, dated as of June 11, 2008 (the "Merger Agreement"). In connection with its obligations under the Merger Agreement,\nincluding obtaining debt and equity financing and consents, approvals, waivers and amendments of existing debt agreements (the\n"Financing"), and the consummation of the transactions contemplated by the Merger Agreement, including merger integration planning\nactivities (the "Transactions"), LS Cable may disclose to Superior Essex certain confidential information which LS Cable desires Superior\nEssex to treat as confidential (the "Confidential Information"). Capitalized terms used but not defined herein shall have the meanings ascribed\nin\nthe Merger Agreement. Confidential Information does not include any information which: (a) is or becomes generally available to the public\nother than as a result of a disclosure by Superior Essex in violation of this agreement; (b) is already in the possession of Superior Essex on\na\nnon-confidential basis; (c) is obtained by Superior Essex from a third party; provided that the third party was not known by Superior Essex to\nbe bound by an obligation of confidentiality to the source of the information; (d) is independently developed by Superior Essex without use of\nthe Confidential Information; or (e) is required by law to be disclosed.\n2.\nNon-use and Non-disclosure. Superior Essex agrees not to use any Confidential Information for any purpose except in connection with the\nFinancing\nand the Transactions. Superior Essex agrees to treat the Confidential Information strictly confidential and not disclose it, except\nto\nthose of its Representatives (as defined in the Confidentiality Agreement) who are required to have the information in connection with the\nFinancing or the Transactions.\n3.\nTerm. This agreement shall become effective as of the date written below and shall continue until the earlier of (i) the Effective Time or (ii) a\nperiod of 2 years from the date hereof, unless earlier terminated by mutual agreement of the parties hereto.\n4.\nGeneral. This agreement shall be governed and construed in accordance with the laws of the State of New York applicable to agreements made\nand to be performed entirely within New York. This agreement, the Confidentiality Agreement and the Merger Agreement shall constitute\nthe\nentire agreement between us with regard to the subject matter hereof; provided that if there is any conflict between the provisions of this\nagreement and the provisions of the Merger Agreement or the Confidentiality Agreement, the terms of the Merger Agreement and the\nConfidentiality Agreement shall govern. No modification, amendment or waiver shall be binding without the written consent of each of the\nparties hereto. This agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the parties\nhereto. This agreement may be signed by facsimile and in one or more counterparts, each of which shall be deemed an original but all of which\nshall be deemed to constitute a single instrument.\n5.\nFinancing Sources. In connection with the Financing and the Transactions, any Representatives of Superior Essex or LS Cable may disclose\nEvaluation Material (as defined in the Confidentiality Agreement) or Confidential Information to other of its Representatives, or\nRepresentatives of the other party, so long as the receiving Representative is bound by obligations of confidentiality on substantially the same\nterms as provided in the Confidentiality Agreement (with respect to Representatives of LS Cable) or this agreement (with respect to\nRepresentatives of Superior Essex), provided that under the Confidentiality Agreement, the term "Transaction" shall include the Financing.\nIN WITNESS WHEREOF, the parties hereto have duly executed this agreement as of the date written above.\nSUPERIOR ESSEX INC.\nLS CABLE LTD.\nBy:\n/s/ David S. Aldridge\nBy:\n/s/ Choong-hyun Kim\nPrinted Name: David S. Aldridge\nPrinted Name: Choong-hyun Kim\nTitle:\nEVP and CFO\nTitle:\nSenior Vice President	EX-99.(D)(2)(B) 19 dex99d2b.htm NONDISCLOSURE AGREEMENT\nExhibit (d)(2)(B)\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement is made and entered into as of June 25, 2008, by and between Superior Essex Inc. (“Superior Essex”) and LS Cable\nLtd. (“LS Cable”).\n1. Purpose. Superior Essex and LS Cable have entered into a non-disclosure agreement dated April 22, 2008 (the “SEI NDA”) and an Agreement\nand Plan of Merger, dated as of June 11, 2008 (the “Merger Agreement”). In connection with its obligations under the Merger Agreement,\nincluding obtaining debt and equity financing and consents, approvals, waivers and amendments of existing debt agreements (the\n“Financing”), and the consummation of the transactions contemplated by the Merger Agreement, including merger integration planning\nactivities (the “Transactions”), LS Cable may disclose to Superior Essex certain confidential information which LS Cable desires Superior\nEssex to treat as confidential (the “Confidential Information”). Capitalized terms used but not defined herein shall have the meanings ascribed\nin the Merger Agreement. Confidential Information does not include any information which: (a) is or becomes generally available to the public\nother than as a result of a disclosure by Superior Essex in violation of this agreement; (b) is already in the possession of Superior Essex on a\nnon-confidential basis; (c) is obtained by Superior Essex from a third party; provided that the third party was not known by Superior Essex to\nbe bound by an obligation of confidentiality to the source of the information; (d) is independently developed by Superior Essex without use of\nthe Confidential Information; or (e) is required by law to be disclosed.\n2. Non-use and Non-disclosure. Superior Essex agrees not to use any Confidential Information for any purpose except in connection with the\nFinancing and the Transactions. Superior Essex agrees to treat the Confidential Information strictly confidential and not disclose it, except to\nthose of its Representatives (as defined in the Confidentiality Agreement) who are required to have the information in connection with the\nFinancing or the Transactions.\n3. Term. This agreement shall become effective as of the date written below and shall continue until the earlier of (i) the Effective Time or (ii) a\nperiod of 2 years from the date hereof, unless earlier terminated by mutual agreement of the parties hereto.\n4. General. This agreement shall be governed and construed in accordance with the laws of the State of New York applicable to agreements made\nand to be performed entirely within New York. This agreement, the Confidentiality Agreement and the Merger Agreement shall constitute the\nentire agreement between us with regard to the subject matter hereof; provided that if there is any conflict between the provisions of this\nagreement and the provisions of the Merger Agreement or the Confidentiality Agreement, the terms of the Merger Agreement and the\nConfidentiality Agreement shall govern. No modification, amendment or waiver shall be binding without the written consent of each of the\nparties hereto. This agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns of the parties\nhereto. This agreement may be signed by facsimile and in one or more counterparts, each of which shall be deemed an original but all of which\nshall be deemed to constitute a single instrument.\n5. Financing Sources. In connection with the Financing and the Transactions, any Representatives of Superior Essex or LS Cable may disclose\nEvaluation Material (as defined in the Confidentiality Agreement) or Confidential Information to other of its Representatives, or\nRepresentatives of the other party, so long as the receiving Representative is bound by obligations of confidentiality on substantially the same\nterms as provided in the Confidentiality Agreement (with respect to Representatives of LS Cable) or this agreement (with respect to\nRepresentatives of Superior Essex), provided that under the Confidentiality Agreement, the term “Transaction” shall include the Financing.\nIN WITNESS WHEREOF, the parties hereto have duly executed this agreement as of the date written above.\nSUPERIOR ESSEX INC.\nLS CABLE LTD.\nBy:\n/s/ David S. Aldridge\nBy:\n/s/ Choong-hyun Kim\nPrinted Name: David S. Aldridge\nPrinted Name: Choong-hyun Kim\nTitle:\nEVP and CFO\nTitle:\nSenior Vice President
+12a10b807377a8be61d204d4624b034f.pdf	effective_date jurisdiction party term	EX-99.(E)(2) 2 d226816dex99e2.htm EX-99.(E)(2)\nExhibit (e)(2)\nQLOGIC CORPORATION\n26650 ALISO VIEJO PARKWAY\nALISO VIEJO, CA 92656\nApril 19, 2016\nCavium, Inc.\n2315 N. First Street\nSan Jose, California 95131\nAttention: Syed Ali, President and Chief Executive Officer\nMUTUAL CONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nIn connection with your possible interest in a merger, acquisition, or other strategic combination (the “Transaction”) involving\nQLogic Corporation (“QLogic”), Cavium, Inc. (“Cavium”) has requested that we or our representatives furnish you or your\nrepresentatives with certain information relating to QLogic or the Transaction, each of which is a “party” or collectively “parties.”\nIn addition, we have requested that you or your representatives furnish us with information relating to Cavium or the Transaction.\nAll such information (whether oral or contained on written or other tangible medium) furnished (after April 19, 2016, the “Effective\nDate” hereof) by any of us, Cavium or our respective directors, officers, employees, affiliates, representatives (including, without\nlimitation, financial advisors, attorneys and accountants) or agents (collectively, “Representatives”) to the other party or their\nrespective Representatives and all analyses, compilations, forecasts, studies or other documents prepared by a party or their\nRepresentatives in connection with a party’s review of, or interest in, the Transaction which contain or reflect any such information\nis hereinafter referred to as the “Information”. The term Information will not, however, include information which (i) is or becomes\npublicly available other than as a result of a disclosure by a receiving party in breach of this letter agreement, (ii) is or becomes\navailable to a party on a non-confidential basis from a source (other than from another party to this letter agreement or their\nRepresentatives) which, to the best of a party’s knowledge, is not prohibited from disclosing such information by a legal,\ncontractual or fiduciary obligation, or (iii) was or is independently developed by a party or their Representatives without reference\nto Information provided by a disclosing party. QLogic acknowledges that Cavium possesses significant amounts of Ethernet\ntechnology and information as a result of the Ethernet NICs that Cavium has developed and is currently selling into the hyperscale\nmarket. Each party and their Representatives, in their capacity as a provider of information, is referred to in this letter agreement as\na “disclosing party”; and each party and their Representatives, in their capacity as a recipient of information, is referred to in this\nletter agreement as a “receiving party.”\n1\nAccordingly, each of us hereby agrees that:\n1. Each party (i) will keep the Information confidential and will not (except as required by applicable law, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the prior written consent of the other party, disclose any\nInformation in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction;\nprovided, however, that each party may reveal the Information to their respective Representatives (a) who need to know the\nInformation for the purpose of evaluating the Transaction, (b) who are informed by you of the confidential nature of the\nInformation and (c) who agree to act in accordance with the confidentiality obligations of this letter agreement. Each party will\nbe responsible for any breach of this letter agreement by any of their Representatives.\n2. Each party and their Representatives will not (except as required by applicable law, regulation or legal process, and only after\ncompliance with paragraph 3 below), without the prior written consent of the other party, disclose to any person the fact that the\nInformation has been exchanged between the parties, that the parties are considering the Transaction, or that discussions or\nnegotiations are taking or have taken place concerning the Transaction or any term, condition or other fact relating to the\nTransaction or such discussions or negotiations, including, without limitation, the status thereof.\n3. In the event that any party or any of their Representatives are requested pursuant to, or required by, applicable law, regulation or\nlegal process to disclose any of the Information, where legally permitted (as determined by your counsel), the disclosing party\nwill notify the other party promptly so that they may seek a protective order or other appropriate remedy or, in their sole\ndiscretion, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy\nis obtained, or if the other party does not waive compliance with the terms of this letter agreement, the disclosing party will\nfurnish only that portion of the Information which it is advised by counsel is legally required and will exercise reasonable\nefforts to obtain reliable assurance that confidential treatment will be accorded the Information.\n4. If either party determines not to proceed with the Transaction, it will promptly inform the other party of that decision and, in\nthat case, and at any time upon the request of a party, the other party will promptly destroy all Information on any tangible\nmedium in the other party’s or its Representatives’ possession and confirm such destruction in writing to the party requesting\nsuch destruction; provided however, that the legal department of each party may maintain a copy of the Information in its\nrestricted files solely for actual or anticipated litigation, regulatory compliance or corporate record keeping purposes, and a\nparty shall not be required to destroy any computer records containing Information that have been created pursuant to automatic\nelectronic archiving and back-up procedures in the ordinary course of business, provided that, in each case, such retained\nInformation will continue to be subject to the terms of this letter agreement.\n5. Each party further agrees that they are not entitled to rely on the accuracy or completeness of the Information and that a party\nwill be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with\nrespect to the Transaction, subject to such limitations and restrictions as may be contained therein.\n6. Each party is aware, and will advise their Representatives who are informed of the matters that are the subject of this letter\nagreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person\nwho has received material, non-public information from the issuer of such securities and on the communication of such\ninformation to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such\nsecurities in reliance upon such information.\n2\n7. You agree that, for a period of two years from the Effective Date of this letter agreement, neither you nor any of your affiliates\nwill, without the prior written consent of QLogic or its Board of Directors: (i) acquire, offer to acquire, or agree to acquire,\ndirectly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities\nof QLogic or any subsidiary thereof, or any assets of QLogic or any subsidiary or division thereof; (ii) make, or in any way\nparticipate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities\nExchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting\nsecurities of QLogic; (iii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without\nconditions) any extraordinary transaction involving QLogic or its securities or assets; (iv) form, join or in any way participate in\na “group” (as defined in Section 13 (d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the\nforegoing; or (v) request QLogic or any of our Representatives, directly or indirectly, to amend or waive any provision of this\nparagraph. The provisions of this Section 7 shall be inoperative and of no force or effect if any other person or “group” publicly\nannounces an agreement or agreement in principle providing for a Combination with QLogic, or QLogic makes a public\nannouncement of its support for a tender offer for securities of QLogic that if consummated would constitute a Combination (or\nif a tender offer or exchange offer that if consummated would constitute a Combination is made for securities of QLogic and the\nQLogic Board accepts (or recommends that the shareholders accept) such offer or fails to recommend within ten days from the\ndate of such commencement of such offer that its shareholders reject such offer). A “Combination” shall mean a transaction in\nwhich (i) a person or “group” acquires, directly or indirectly, securities representing 50% or more of the voting power of the\noutstanding securities of QLogic or properties or assets constituting 50% or more of the consolidated assets of QLogic and its\nsubsidiaries or (ii) in any case not covered by (i), (A) QLogic issues securities representing 50% or more of its voting power,\nincluding in the case of (i) and (ii) by way of merger or other business combination with QLogic or any of its subsidiaries or (B)\nQLogic engages in a merger or other business combination such that the holders of voting securities of QLogic immediately\nprior to the transaction do not own more than 50% of the voting power of the securities of the resulting entity.\n8. Each party agrees that, for a period of two years from the Effective Date of this letter agreement, it will not, directly or\nindirectly, solicit for employment or hire any employee of the other party with whom it had contact or who became known to a\nparty in connection with consideration of the Transaction; provided, however, that the foregoing provision will not prevent a\nparty from employing any such person who contacts a party on his or her own initiative, contacts a party without any direct\nsolicitation by or encouragement from a party or its agents, or whose employment with the other party has ceased. The\nrestrictions of this Section 8 shall not prohibit a party from (i) conducting any general solicitations of employment directly or\nthrough any agent (including placement and recruiting agencies) that is not directed at employees of a party, (ii) allowing\nsolicitation by recruitment agencies provided that they have not received the name of a party or its employees from the other\nparty or their Representatives.\n3\n9. Each party agrees that all (i) communications regarding the Transaction, (ii) requests for additional information, facility tours or\nmanagement meetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be first\nsubmitted or directed to Chris King or Jean Hu for QLogic or a designated person from Cavium. You acknowledge and agree\nthat (a) we and our Representatives are free to conduct the process leading up to a possible Transaction as we and our\nRepresentatives, in our sole discretion, determine (including, without limitation, by negotiating with any prospective buyer and\nentering into a preliminary or definitive agreement without prior notice to you or any other person), (b) we reserve the right, in\nour sole discretion, to change the procedures relating to our consideration of the Transaction at any time without prior notice to\nyou or any other person, to reject any and all proposals made by you or any of your Representatives with regard to the\nTransaction, and to terminate discussions and negotiations with you at any time and for any reason, and (c) unless and until a\nwritten definitive agreement concerning the Transaction has been executed, neither we nor any of our Representatives will have\nany liability to you with respect to the Transaction, any other written or oral expression with respect to the Transaction or\notherwise, except as agreed in this letter agreement. We acknowledge and agree that unless and until a written definitive\nagreement concerning the Transaction has been executed, neither you nor any of your Representatives will have any liability to\nus with respect to the Transaction, any other written or oral expression with respect to the Transaction or otherwise, except as\nagreed in this letter agreement\n10. By making Information available to the receiving party, the disclosing party is not, and shall not be deemed to be, granting\n(expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or\nother proprietary or intellectual property right.\n11. Each party acknowledges that remedies at law may be inadequate to protect a party against any actual or threatened breach of\nthis letter agreement by another party or its Representatives, and, without prejudice to any other rights and remedies otherwise\navailable, each party agrees to the granting of injunctive relief in favor of the other parties without proof of actual damages.\n12. Each party agrees that no failure or delay by the other in exercising any right, power or privilege hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of\nany right, power or privilege hereunder.\n13. This letter agreement will be governed by and construed in accordance with the laws of the State of California applicable to\ncontracts between residents of that State and executed in and to be performed in that State.\n14. This letter agreement contains the entire agreement between you and us concerning the confidentiality of the Information and\nsupersedes any prior agreement between the parties regarding the subject matter hereof, and no modifications of this letter\nagreement or waiver of the terms and conditions hereof will be binding upon you or us, unless approved in writing by you and\nus.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter\nenclosed herewith.\n4\nVery truly yours,\nQLOGIC CORPORATION\nBy:\n/s/ Michael L. Hawkins\nName:\nMichael L. Hawkins\nTitle:\nV.P. and General Counsel\nAccepted and Agreed as of the date first written\nabove:\nCavium, Inc.\nBy:\n/s/ Lisa Sidel\nTitle:\nAssoc. General Counsel\nDate:\nApril 19, 2016\n5	EX-99.(E)(2) 2 d226816dex99e2.htm EX-99.(E)(2)\nExhibit (e)(2)\nQLOGIC CORPORATION\n26650 ALISO VIEJO PARKWAY\nALISO VIEJO, CA 92656\nApril 19, 2016\nCavium, Inc.\n2315 N. First Street\nSan Jose, California 95131\nAttention: Syed Ali, President and Chief Executive Officer\nMUTUAL CONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nIn connection with your possible interest in a merger, acquisition, or other strategic combination (the “Transaction”) involving\nQLogic Corporation (“QLogic”), Cavium, Inc. (“Cavium”) has requested that we or our representatives furnish you or your\nrepresentatives with certain information relating to QLogic or the Transaction, each of which is a “party” or collectively “parties.”\nIn addition, we have requested that you or your representatives furnish us with information relating to Cavium or the Transaction.\nAll such information (whether oral or contained on written or other tangible medium) furnished (after April 19, 2016, the “Effective\nDate” hereof) by any of us, Cavium or our respective directors, officers, employees, affiliates, representatives (including, without\nlimitation, financial advisors, attorneys and accountants) or agents (collectively, “Representatives™) to the other party or their\nrespective Representatives and all analyses, compilations, forecasts, studies or other documents prepared by a party or their\nRepresentatives in connection with a party’s review of, or interest in, the Transaction which contain or reflect any such information\nis hereinafter referred to as the “Information”. The term Information will not, however, include information which (i) is or becomes\npublicly available other than as a result of a disclosure by a receiving party in breach of this letter agreement, (ii) is or becomes\navailable to a party on a non-confidential basis from a source (other than from another party to this letter agreement or their\nRepresentatives) which, to the best of a party’s knowledge, is not prohibited from disclosing such information by a legal,\ncontractual or fiduciary obligation, or (iii) was or is independently developed by a party or their Representatives without reference\nto Information provided by a disclosing party. QLogic acknowledges that Cavium possesses significant amounts of Ethernet\ntechnology and information as a result of the Ethernet NICs that Cavium has developed and is currently selling into the hyperscale\nmarket. Each party and their Representatives, in their capacity as a provider of information, is referred to in this letter agreement as\na “disclosing party”; and each party and their Representatives, in their capacity as a recipient of information, is referred to in this\nletter agreement as a “receiving party.”\nAccordingly, each of us hereby agrees that: 1. Each party (i) will keep the Information confidential and will not (except as required by applicable law, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the prior written consent of the other party, disclose any\nInformation in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction;\nprovided, however, that each party may reveal the Information to their respective Representatives (a) who need to know the\nInformation for the purpose of evaluating the Transaction, (b) who are informed by you of the confidential nature of the\nInformation and (c) who agree to act in accordance with the confidentiality obligations of this letter agreement. Each party will\nbe responsible for any breach of this letter agreement by any of their Representatives.\nEach party and their Representatives will not (except as required by applicable law, regulation or legal process, and only after\ncompliance with paragraph 3 below), without the prior written consent of the other party, disclose to any person the fact that the\nInformation has been exchanged between the parties, that the parties are considering the Transaction, or that discussions or\nnegotiations are taking or have taken place concerning the Transaction or any term, condition or other fact relating to the\nTransaction or such discussions or negotiations, including, without limitation, the status thereof.\nIn the event that any party or any of their Representatives are requested pursuant to, or required by, applicable law, regulation or\nlegal process to disclose any of the Information, where legally permitted (as determined by your counsel), the disclosing party\nwill notify the other party promptly so that they may seek a protective order or other appropriate remedy or, in their sole\ndiscretion, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy\nis obtained, or if the other party does not waive compliance with the terms of this letter agreement, the disclosing party will\nfurnish only that portion of the Information which it is advised by counsel is legally required and will exercise reasonable\nefforts to obtain reliable assurance that confidential treatment will be accorded the Information.\nIf either party determines not to proceed with the Transaction, it will promptly inform the other party of that decision and, in\nthat case, and at any time upon the request of a party, the other party will promptly destroy all Information on any tangible\nmedium in the other party’s or its Representatives’ possession and confirm such destruction in writing to the party requesting\nsuch destruction; provided however, that the legal department of each party may maintain a copy of the Information in its\nrestricted files solely for actual or anticipated litigation, regulatory compliance or corporate record keeping purposes, and a\nparty shall not be required to destroy any computer records containing Information that have been created pursuant to automatic\nelectronic archiving and back-up procedures in the ordinary course of business, provided that, in each case, such retained\nInformation will continue to be subject to the terms of this letter agreement.\nEach party further agrees that they are not entitled to rely on the accuracy or completeness of the Information and that a party\nwill be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with\nrespect to the Transaction, subject to such limitations and restrictions as may be contained therein.\nEach party is aware, and will advise their Representatives who are informed of the matters that are the subject of this letter\nagreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person\nwho has received material, non-public information from the issuer of such securities and on the communication of such\ninformation to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such\nsecurities in reliance upon such information.\n7. You agree that, for a period of two years from the Effective Date of this letter agreement, neither you nor any of your affiliates\nwill, without the prior written consent of QLogic or its Board of Directors: (i) acquire, offer to acquire, or agree to acquire,\ndirectly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities\nof QLogic or any subsidiary thereof, or any assets of QLogic or any subsidiary or division thereof; (ii) make, or in any way\nparticipate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities\nExchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting\nsecurities of QLogic; (iii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without\nconditions) any extraordinary transaction involving QLogic or its securities or assets; (iv) form, join or in any way participate in\na “group” (as defined in Section 13 (d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the\nforegoing; or (v) request QLogic or any of our Representatives, directly or indirectly, to amend or waive any provision of this\nparagraph. The provisions of this Section 7 shall be inoperative and of no force or effect if any other person or “group” publicly\nannounces an agreement or agreement in principle providing for a Combination with QLogic, or QLogic makes a public\nannouncement of its support for a tender offer for securities of QLogic that if consummated would constitute a Combination (or\nif a tender offer or exchange offer that if consummated would constitute a Combination is made for securities of QLogic and the\nQLogic Board accepts (or recommends that the shareholders accept) such offer or fails to recommend within ten days from the\ndate of such commencement of such offer that its shareholders reject such offer). A “Combination” shall mean a transaction in\nwhich (i) a person or “group” acquires, directly or indirectly, securities representing 50% or more of the voting power of the\noutstanding securities of QLogic or properties or assets constituting 50% or more of the consolidated assets of QLogic and its\nsubsidiaries or (ii) in any case not covered by (i), (A) QLogic issues securities representing 50% or more of its voting power,\nincluding in the case of (i) and (ii) by way of merger or other business combination with QLogic or any of its subsidiaries or (B)\nQLogic engages in a merger or other business combination such that the holders of voting securities of QLogic immediately\nprior to the transaction do not own more than 50% of the voting power of the securities of the resulting entity.\n8. Each party agrees that, for a period of two years from the Effective Date of this letter agreement, it will not, directly or\nindirectly, solicit for employment or hire any employee of the other party with whom it had contact or who became known to a\nparty in connection with consideration of the Transaction; provided, however, that the foregoing provision will not prevent a\nparty from employing any such person who contacts a party on his or her own initiative, contacts a party without any direct\nsolicitation by or encouragement from a party or its agents, or whose employment with the other party has ceased. The\nrestrictions of this Section 8 shall not prohibit a party from (i) conducting any general solicitations of employment directly or\nthrough any agent (including placement and recruiting agencies) that is not directed at employees of a party, (ii) allowing\nsolicitation by recruitment agencies provided that they have not received the name of a party or its employees from the other\nparty or their Representatives.\n10. 11. 12. 13. 14. Each party agrees that all (i) communications regarding the Transaction, (ii) requests for additional information, facility tours or\nmanagement meetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be first\nsubmitted or directed to Chris King or Jean Hu for QLogic or a designated person from Cavium. You acknowledge and agree\nthat (a) we and our Representatives are free to conduct the process leading up to a possible Transaction as we and our\nRepresentatives, in our sole discretion, determine (including, without limitation, by negotiating with any prospective buyer and\nentering into a preliminary or definitive agreement without prior notice to you or any other person), (b) we reserve the right, in\nour sole discretion, to change the procedures relating to our consideration of the Transaction at any time without prior notice to\nyou or any other person, to reject any and all proposals made by you or any of your Representatives with regard to the\nTransaction, and to terminate discussions and negotiations with you at any time and for any reason, and (c) unless and until a\nwritten definitive agreement concerning the Transaction has been executed, neither we nor any of our Representatives will have\nany liability to you with respect to the Transaction, any other written or oral expression with respect to the Transaction or\notherwise, except as agreed in this letter agreement. We acknowledge and agree that unless and until a written definitive\nagreement concerning the Transaction has been executed, neither you nor any of your Representatives will have any liability to\nus with respect to the Transaction, any other written or oral expression with respect to the Transaction or otherwise, except as\nagreed in this letter agreement\nBy making Information available to the receiving party, the disclosing party is not, and shall not be deemed to be, granting\n(expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or\nother proprietary or intellectual property right.\nEach party acknowledges that remedies at law may be inadequate to protect a party against any actual or threatened breach of\nthis letter agreement by another party or its Representatives, and, without prejudice to any other rights and remedies otherwise\navailable, each party agrees to the granting of injunctive relief in favor of the other parties without proof of actual damages.\nEach party agrees that no failure or delay by the other in exercising any right, power or privilege hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of\nany right, power or privilege hereunder.\nThis letter agreement will be governed by and construed in accordance with the laws of the State of California applicable to\ncontracts between residents of that State and executed in and to be performed in that State.\nThis letter agreement contains the entire agreement between you and us concerning the confidentiality of the Information and\nsupersedes any prior agreement between the parties regarding the subject matter hereof, and no modifications of this letter\nagreement or waiver of the terms and conditions hereof will be binding upon you or us, unless approved in writing by you and\nus.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed herewith.\fAccepted and Agreed as of the date first written\nabove:\nCavium, Inc.\nBy: /s/ Lisa Sidel Title: Assoc. General Counsel Date: April 19, 2016 Very truly yours,\nQLOGIC CORPORATION\nBy: /s/ Michael L. Hawkins\nName: Michael L. Hawkins\nTitle: V.P. and General Counsel	EX-99.(E)(2) 2 d226816dex99e2.htm EX-99.(E)(2)\nExhibit (e)(2)\nQLOGIC CORPORATION\n26650 ALISO VIEJO PARKWAY\nALISO VIEJO, CA 92656\nApril 19, 2016\nCavium, Inc.\n2315 N. First Street\nSan Jose, California 95131\nAttention: Syed Ali, President and Chief Executive Officer\nMUTUAL CONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nIn connection with your possible interest in a merger, acquisition, or other strategic combination (the "Transaction") involving\nQLogic Corporation ("QLogic"), Cavium, Inc. ("Cavium") has requested that we or our representatives furnish you or your\nrepresentatives with certain information relating to QLogic or the Transaction, each of which is a "party" or collectively "parties."\nIn addition, we have requested that you or your representatives furnish us with information relating to Cavium or the Transaction.\nAll such information (whether oral or contained on written or other tangible medium) furnished (after April 19, 2016, the "Effective\nDate" hereof) by any of us, Cavium or our respective directors, officers, employees, affiliates, representatives (including, without\nlimitation, financial advisors, attorneys and accountants) or agents (collectively, "Representatives") to the other party or their\nrespective Representatives and all analyses, compilations, forecasts, studies or other documents prepared by a party or their\nRepresentatives in connection with a party's review of, or interest in, the Transaction which contain or reflect any such information\nis hereinafter referred to as the "Information". The term Information will not, however, include information which (i) is or becomes\npublicly available other than as a result of a disclosure by a receiving party in breach of this letter agreement, (ii) is or becomes\navailable to a party on a non-confidential basis from a source (other than from another party to this letter agreement or their\nRepresentatives) which, to the best of a party's knowledge, is not prohibited from disclosing such information by a legal,\ncontractual or fiduciary obligation, or (iii) was or is independently developed by a party or their Representatives without reference\nto Information provided by a disclosing party. QLogic acknowledges that Cavium possesses significant amounts of Ethernet\ntechnology and information as a result of the Ethernet NICs that Cavium has developed and is currently selling into the hyperscale\nmarket. Each party and their Representatives, in their capacity as a provider of information, is referred to in this letter agreement as\na "disclosing party"; and each party and their Representatives, in their capacity as a recipient of information, is referred to in this\nletter agreement as a "receiving party."\n1\nAccordingly, each of us hereby agrees that:\n1. Each party (i) will keep the Information confidential and will not (except as required by applicable law, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the prior written consent of the other party, disclose any\nInformation in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction;\nprovided, however, that each party may reveal the Information to their respective Representatives (a) who need to know the\nInformation for the purpose of evaluating the Transaction, (b) who are informed by you of the confidential nature of the\nInformation and (c) who agree to act in accordance with the confidentiality obligations of this letter agreement. Each party will\nbe responsible for any breach of this letter agreement by any of their Representatives.\n2.\nEach\nparty\nand\ntheir\nRepresentatives\nwill\nnot\n(except\nas\nrequired\nby\napplicable\nlaw,\nregulation\nor\nlegal\nprocess,\nand\nonly\nafter\ncompliance with paragraph 3 below), without the prior written consent of the other party, disclose to any person the fact that the\nInformation has been exchanged between the parties, that the parties are considering the Transaction, or that discussions or\nnegotiations are taking or have taken place concerning the Transaction or any term, condition or other fact relating to the\nTransaction or such discussions or negotiations, including, without limitation, the status thereof.\n3.\nIn the event that any party or any of their Representatives are requested pursuant to, or required by, applicable law, regulation or\nlegal process to disclose any of the Information, where legally permitted (as determined by your counsel), the disclosing party\nwill\nnotify\nthe\nother\nparty\npromptly\nso\nthat\nthey\nmay\nseek\na\nprotective\norder\nor\nother\nappropriate\nremedy\nor,\nin\ntheir\nsole\ndiscretion, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy\nis obtained, or if the other party does not waive compliance with the terms of this letter agreement, the disclosing party will\nfurnish only that portion of the Information which it is advised by counsel is legally required and will exercise reasonable\nefforts to obtain reliable assurance that confidential treatment will be accorded the Information.\n4.\nIf either party determines not to proceed with the Transaction, it will promptly inform the other party of that decision and, in\nthat case, and at any time upon the request of a party, the other party will promptly destroy all Information on any tangible\nmedium in the other party's or its Representatives' possession and confirm such destruction in writing to the party requesting\nsuch destruction; provided however, that the legal department of each party may maintain a copy of the Information in its\nrestricted files solely for actual or anticipated litigation, regulatory compliance or corporate record keeping purposes, and a\nparty shall not be required to destroy any computer records containing Information that have been created pursuant to automatic\nelectronic archiving and back-up procedures in the ordinary course of business, provided that, in each case, such retained\nInformation will continue to be subject to the terms of this letter agreement.\n5.\nEach party further agrees that they are not entitled to rely on the accuracy or completeness of the Information and that a party\nwill be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with\nrespect to the Transaction, subject to such limitations and restrictions as may be contained therein.\n6.\nEach party is aware, and will advise their Representatives who are informed of the matters that are the subject of this letter\nagreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person\nwho has received material, non-public information from the issuer of such securities and on the communication of such\ninformation to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such\nsecurities in reliance upon such information.\n2\n7.\nYou agree that, for a period of two years from the Effective Date of this letter agreement, neither you nor any of your affiliates\nwill, without the prior written consent of QLogic or its Board of Directors: (i) acquire, offer to acquire, or agree to acquire,\ndirectly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities\nof QLogic or any subsidiary thereof, or any assets of QLogic or any subsidiary or division thereof; (ii) make, or in any way\nparticipate in, directly or indirectly, any "solicitation" of "proxies" (as such terms are used in the rules of the Securities\nExchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting\nsecurities of QLogic; (iii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without\nconditions)\nany\nextraordinary\ntransaction\ninvolving\nQLogic\nor\nits\nsecurities\nor\nassets;\n(iv)\nform,\njoin\nor\nin\nany\nway\nparticipate\nin\na\n"group" (as defined in Section 13 (d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the\nforegoing; or (v) request QLogic or any of our Representatives, directly or indirectly, to amend or waive any provision of this\nparagraph. The provisions of this Section 7 shall be inoperative and of no force or effect if any other person or "group" publicly\nannounces an agreement or agreement in principle providing for a Combination with QLogic, or QLogic makes a public\nannouncement of its support for a tender offer for securities of QLogic that if consummated would constitute a Combination (or\nif a tender offer or exchange offer that if consummated would constitute a Combination is made for securities of QLogic and\nthe\nQLogic Board accepts (or recommends that the shareholders accept) such offer or fails to recommend within ten days from the\ndate\nof\nsuch\ncommencement\nof\nsuch\noffer\nthat\nits\nshareholders\nreject\nsuch\noffer).\nA\n"Combination"\nshall\nmean\na\ntransaction\nin\nwhich (i) a person or "group" acquires, directly or indirectly, securities representing 50% or more of the voting power of the\noutstanding securities of QLogic or properties or assets constituting 50% or more of the consolidated assets of QLogic and its\nsubsidiaries\nor\n(ii)\nin\nany\ncase\nnot\ncovered\nby\n(i),\n(A)\nQLogic\nissues\nsecurities\nrepresenting\n50%\nor\nmore\nof\nits\nvoting\npower,\nincluding in the case of (i) and (ii) by way of merger or other business combination with QLogic or any of its subsidiaries or (B)\nQLogic engages in a merger or other business combination such that the holders of voting securities of QLogic immediately\nprior to the transaction do not own more than 50% of the voting power of the securities of the resulting entity.\n8. Each party agrees that, for a period of two years from the Effective Date of this letter agreement, it will not, directly or\nindirectly, solicit for employment or hire any employee of the other party with whom it had contact or who became known to a\nparty in connection with consideration of the Transaction; provided, however, that the foregoing provision will not prevent a\nparty\nfrom\nemploying\nany\nsuch\nperson\nwho\ncontacts\na\nparty\non\nhis\nor\nher\nown\ninitiative,\ncontacts\na\nparty\nwithout\nany\ndirect\nsolicitation by or encouragement from a party or its agents, or whose employment with the other party has ceased. The\nrestrictions of this Section 8 shall not prohibit a party from (i) conducting any general solicitations of employment directly or\nthrough\nany\nagent\n(including\nplacement\nand\nrecruiting\nagencies)\nthat\nis\nnot\ndirected\nat\nemployees\nof\na\nparty,\n(ii)\nallowing\nsolicitation by recruitment agencies provided that they have not received the name of a party or its employees from the other\nparty or their Representatives.\n3\n9. Each party agrees that all (i) communications regarding the Transaction, (ii) requests for additional information, facility tours or\nmanagement meetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be first\nsubmitted or directed to Chris King or Jean Hu for QLogic or a designated person from Cavium. You acknowledge and agree\nthat (a) we and our Representatives are free to conduct the process leading up to a possible Transaction as we and our\nRepresentatives, in our sole discretion, determine (including, without limitation, by negotiating with any prospective buyer and\nentering into a preliminary or definitive agreement without prior notice to you or any other person), (b) we reserve the right, in\nour sole discretion, to change the procedures relating to our consideration of the Transaction at any time without prior notice to\nyou\nor\nany\nother\nperson,\nto\nreject\nany\nand\nall\nproposals\nmade\nby\nyou\nor\nany\nof\nyour\nRepresentatives\nwith\nregard\nto\nthe\nTransaction, and to terminate discussions and negotiations with you at any time and for any reason, and (c) unless and until a\nwritten definitive agreement concerning the Transaction has been executed, neither we nor any of our Representatives will have\nany liability to you with respect to the Transaction, any other written or oral expression with respect to the Transaction or\notherwise, except as agreed in this letter agreement. We acknowledge and agree that unless and until a written definitive\nagreement concerning the Transaction has been executed, neither you nor any of your Representatives will have any liability to\nus\nwith respect to the Transaction, any other written or oral expression with respect to the Transaction or otherwise, except as\nagreed in this letter agreement\n10. By making Information available to the receiving party, the disclosing party is not, and shall not be deemed to be, granting\n(expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or\nother proprietary or intellectual property right.\n11. Each party acknowledges that remedies at law may be inadequate to protect a party against any actual or threatened breach of\nthis letter agreement by another party or its Representatives, and, without prejudice to any other rights and remedies otherwise\navailable, each party agrees to the granting of injunctive relief in favor of the other parties without proof of actual damages.\n12. Each party agrees that no failure or delay by the other in exercising any right, power or privilege hereunder will operate as\na\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of\nany right, power or privilege hereunder.\n13. This letter agreement will be governed by and construed in accordance with the laws of the State of California applicable to\ncontracts between residents of that State and executed in and to be performed in that State.\n14. This letter agreement contains the entire agreement between you and us concerning the confidentiality of the Information and\nsupersedes any prior agreement between the parties regarding the subject matter hereof, and no modifications of this letter\nagreement or waiver of the terms and conditions hereof will be binding upon you or us, unless approved in writing by you and\nus.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter\nenclosed herewith.\n4\nVery truly yours,\nQLOGIC CORPORATION\nBy:\n/s/ Michael L. Hawkins\nName:\nMichael L. Hawkins\nTitle:\nV.P. and General Counsel\nAccepted and Agreed as of the date first written\nabove:\nCavium, Inc\nBy:\n/s/ Lisa Sidel\nTitle:\nAssoc. General Counsel\nDate:\nApril 19, 2016\n5	EX-99.(E)(2) 2 d226816dex99e2.htm EX-99.(E)(2)\nExhibit (e)(2)\nQLOGIC CORPORATION\n26650 ALISO VIEJO PARKWAY\nALISO VIEJO, CA 92656\nApril 19, 2016\nCavium, Inc.\n2315 N. First Street\nSan Jose, California 95131\nAttention: Syed Ali, President and Chief Executive Officer\nMUTUAL CONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nIn connection with your possible interest in a merger, acquisition, or other strategic combination (the “Transaction”) involving\nQLogic Corporation (“QLogic”), Cavium, Inc. (“Cavium”) has requested that we or our representatives furnish you or your\nrepresentatives with certain information relating to QLogic or the Transaction, each of which is a “party” or collectively “parties.”\nIn addition, we have requested that you or your representatives furnish us with information relating to Cavium or the Transaction.\nAll such information (whether oral or contained on written or other tangible medium) furnished (after April 19, 2016, the “Effective\nDate” hereof) by any of us, Cavium or our respective directors, officers, employees, affiliates, representatives (including, without\nlimitation, financial advisors, attorneys and accountants) or agents (collectively, “Representatives”) to the other party or their\nrespective Representatives and all analyses, compilations, forecasts, studies or other documents prepared by a party or their\nRepresentatives in connection with a party’s review of, or interest in, the Transaction which contain or reflect any such information\nis hereinafter referred to as the “Information”. The term Information will not, however, include information which (i) is or becomes\npublicly available other than as a result of a disclosure by a receiving party in breach of this letter agreement, (ii) is or becomes\navailable to a party on a non-confidential basis from a source (other than from another party to this letter agreement or their\nRepresentatives) which, to the best of a party’s knowledge, is not prohibited from disclosing such information by a legal,\ncontractual or fiduciary obligation, or (iii) was or is independently developed by a party or their Representatives without reference\nto Information provided by a disclosing party. QLogic acknowledges that Cavium possesses significant amounts of Ethernet\ntechnology and information as a result of the Ethernet NICs that Cavium has developed and is currently selling into the hyperscale\nmarket. Each party and their Representatives, in their capacity as a provider of information, is referred to in this letter agreement as\na “disclosing party”; and each party and their Representatives, in their capacity as a recipient of information, is referred to in this\nletter agreement as a “receiving party.”\n1\nAccordingly, each of us hereby agrees that:\n1. Each party (i) will keep the Information confidential and will not (except as required by applicable law, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the prior written consent of the other party, disclose any\nInformation in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction;\nprovided, however, that each party may reveal the Information to their respective Representatives (a) who need to know the\nInformation for the purpose of evaluating the Transaction, (b) who are informed by you of the confidential nature of the\nInformation and (c) who agree to act in accordance with the confidentiality obligations of this letter agreement. Each party will\nbe responsible for any breach of this letter agreement by any of their Representatives.\n2. Each party and their Representatives will not (except as required by applicable law, regulation or legal process, and only after\ncompliance with paragraph 3 below), without the prior written consent of the other party, disclose to any person the fact that the\nInformation has been exchanged between the parties, that the parties are considering the Transaction, or that discussions or\nnegotiations are taking or have taken place concerning the Transaction or any term, condition or other fact relating to the\nTransaction or such discussions or negotiations, including, without limitation, the status thereof.\n3. In the event that any party or any of their Representatives are requested pursuant to, or required by, applicable law, regulation or\nlegal process to disclose any of the Information, where legally permitted (as determined by your counsel), the disclosing party\nwill notify the other party promptly so that they may seek a protective order or other appropriate remedy or, in their sole\ndiscretion, waive compliance with the terms of this letter agreement. In the event that no such protective order or other remedy\nis obtained, or if the other party does not waive compliance with the terms of this letter agreement, the disclosing party will\nfurnish only that portion of the Information which it is advised by counsel is legally required and will exercise reasonable\nefforts to obtain reliable assurance that confidential treatment will be accorded the Information.\n4. If either party determines not to proceed with the Transaction, it will promptly inform the other party of that decision and, in\nthat case, and at any time upon the request of a party, the other party will promptly destroy all Information on any tangible\nmedium in the other party’s or its Representatives’ possession and confirm such destruction in writing to the party requesting\nsuch destruction; provided however, that the legal department of each party may maintain a copy of the Information in its\nrestricted files solely for actual or anticipated litigation, regulatory compliance or corporate record keeping purposes, and a\nparty shall not be required to destroy any computer records containing Information that have been created pursuant to automatic\nelectronic archiving and back-up procedures in the ordinary course of business, provided that, in each case, such retained\nInformation will continue to be subject to the terms of this letter agreement.\n5. Each party further agrees that they are not entitled to rely on the accuracy or completeness of the Information and that a party\nwill be entitled to rely solely on such representations and warranties as may be included in any definitive agreement with\nrespect to the Transaction, subject to such limitations and restrictions as may be contained therein.\n6. Each party is aware, and will advise their Representatives who are informed of the matters that are the subject of this letter\nagreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person\nwho has received material, non-public information from the issuer of such securities and on the communication of such\ninformation to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such\nsecurities in reliance upon such information.\n2\n7. You agree that, for a period of two years from the Effective Date of this letter agreement, neither you nor any of your affiliates\nwill, without the prior written consent of QLogic or its Board of Directors: (i) acquire, offer to acquire, or agree to acquire,\ndirectly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities\nof QLogic or any subsidiary thereof, or any assets of QLogic or any subsidiary or division thereof; (ii) make, or in any way\nparticipate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities\nExchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting\nsecurities of QLogic; (iii) make any public announcement with respect to, or submit a proposal for, or offer of (with or without\nconditions) any extraordinary transaction involving QLogic or its securities or assets; (iv) form, join or in any way participate in\na “group” (as defined in Section 13 (d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the\nforegoing; or (v) request QLogic or any of our Representatives, directly or indirectly, to amend or waive any provision of this\nparagraph. The provisions of this Section 7 shall be inoperative and of no force or effect if any other person or “group” publicly\nannounces an agreement or agreement in principle providing for a Combination with QLogic, or QLogic makes a public\nannouncement of its support for a tender offer for securities of QLogic that if consummated would constitute a Combination (or\nif a tender offer or exchange offer that if consummated would constitute a Combination is made for securities of QLogic and the\nQLogic Board accepts (or recommends that the shareholders accept) such offer or fails to recommend within ten days from the\ndate of such commencement of such offer that its shareholders reject such offer). A “Combination” shall mean a transaction in\nwhich (i) a person or “group” acquires, directly or indirectly, securities representing 50% or more of the voting power of the\noutstanding securities of QLogic or properties or assets constituting 50% or more of the consolidated assets of QLogic and its\nsubsidiaries or (ii) in any case not covered by (i), (A) QLogic issues securities representing 50% or more of its voting power,\nincluding in the case of (i) and (ii) by way of merger or other business combination with QLogic or any of its subsidiaries or (B)\nQLogic engages in a merger or other business combination such that the holders of voting securities of QLogic immediately\nprior to the transaction do not own more than 50% of the voting power of the securities of the resulting entity.\n8. Each party agrees that, for a period of two years from the Effective Date of this letter agreement, it will not, directly or\nindirectly, solicit for employment or hire any employee of the other party with whom it had contact or who became known to a\nparty in connection with consideration of the Transaction; provided, however, that the foregoing provision will not prevent a\nparty from employing any such person who contacts a party on his or her own initiative, contacts a party without any direct\nsolicitation by or encouragement from a party or its agents, or whose employment with the other party has ceased. The\nrestrictions of this Section 8 shall not prohibit a party from (i) conducting any general solicitations of employment directly or\nthrough any agent (including placement and recruiting agencies) that is not directed at employees of a party, (ii) allowing\nsolicitation by recruitment agencies provided that they have not received the name of a party or its employees from the other\nparty or their Representatives.\n3\n9. Each party agrees that all (i) communications regarding the Transaction, (ii) requests for additional information, facility tours or\nmanagement meetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be first\nsubmitted or directed to Chris King or Jean Hu for QLogic or a designated person from Cavium. You acknowledge and agree\nthat (a) we and our Representatives are free to conduct the process leading up to a possible Transaction as we and our\nRepresentatives, in our sole discretion, determine (including, without limitation, by negotiating with any prospective buyer and\nentering into a preliminary or definitive agreement without prior notice to you or any other person), (b) we reserve the right, in\nour sole discretion, to change the procedures relating to our consideration of the Transaction at any time without prior notice to\nyou or any other person, to reject any and all proposals made by you or any of your Representatives with regard to the\nTransaction, and to terminate discussions and negotiations with you at any time and for any reason, and (c) unless and until a\nwritten definitive agreement concerning the Transaction has been executed, neither we nor any of our Representatives will have\nany liability to you with respect to the Transaction, any other written or oral expression with respect to the Transaction or\notherwise, except as agreed in this letter agreement. We acknowledge and agree that unless and until a written definitive\nagreement concerning the Transaction has been executed, neither you nor any of your Representatives will have any liability to\nus with respect to the Transaction, any other written or oral expression with respect to the Transaction or otherwise, except as\nagreed in this letter agreement\n10. By making Information available to the receiving party, the disclosing party is not, and shall not be deemed to be, granting\n(expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or\nother proprietary or intellectual property right.\n11. Each party acknowledges that remedies at law may be inadequate to protect a party against any actual or threatened breach of\nthis letter agreement by another party or its Representatives, and, without prejudice to any other rights and remedies otherwise\navailable, each party agrees to the granting of injunctive relief in favor of the other parties without proof of actual damages.\n12. Each party agrees that no failure or delay by the other in exercising any right, power or privilege hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of\nany right, power or privilege hereunder.\n13. This letter agreement will be governed by and construed in accordance with the laws of the State of California applicable to\ncontracts between residents of that State and executed in and to be performed in that State.\n14. This letter agreement contains the entire agreement between you and us concerning the confidentiality of the Information and\nsupersedes any prior agreement between the parties regarding the subject matter hereof, and no modifications of this letter\nagreement or waiver of the terms and conditions hereof will be binding upon you or us, unless approved in writing by you and\nus.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter\nenclosed herewith.\n4\nVery truly yours,\nQLOGIC CORPORATION\nBy:\n/s/ Michael L. Hawkins\nName:\nMichael L. Hawkins\nTitle:\nV.P. and General Counsel\nAccepted and Agreed as of the date first written\nabove:\nCavium, Inc.\nBy:\n/s/ Lisa Sidel\nTitle:\nAssoc. General Counsel\nDate:\nApril 19, 2016\n5
+12bfa941d21dca1f147cca6423c4e80a.pdf	effective_date jurisdiction party term	EX-3 4 d380892dex3.htm CONFIDENTIALITY AGREEMENT\nExhibit 3\nLOGO\nWells Fargo Securities, LLC\n301 South College Street\nCharlotte, NC 28288-8905\nFebruary 28, 2011\nABC-Mart, Inc.\nc/o Barclays Capital\n745 Seventh Avenue\nNew York, NY 10019\nAttention:\nAri D. Berger, Managing Director\nRetail & Apparel Investment Banking Group\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nYou have expressed interest in pursuing the acquisition of LaCrosse Footwear, Inc. (the “Company”), which is represented by Wells Fargo\nSecurities LLC (“Wells Fargo”), through the purchase of all the capital stock of the Company (the “Transaction”). You have requested that the\nCompany or its representatives furnish you or your representatives with certain information relating to the Company or the Transaction. All such\ninformation (whether written or oral) furnished (whether before or after the date hereof) by the Company or its directors, officers, employees,\naffiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents (collectively, “the Company\nRepresentatives”) to you or your directors, officers, employees, affiliates, representatives (including, without limitation, financial advisors,\nattorneys and accountants) or agents (collectively, “your Representatives”) and all analyses, compilations, forecasts, studies or other documents\nprepared by you or your Representatives in connection with your or their review of, or your interest in, the Transaction which contain or reflect any\nsuch information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by you or your Representatives in violation of this letter agreement or other\nobligation of confidentiality, (ii) is already known to you at the time of its receipt form the Company or the Company Representatives, (iii) is or\nbecomes available to you on a nonconfidential basis from a source (other than the Company or its Representatives) not known by you to be\nprohibited from disclosing such information to you by a legal, contractual or fiduciary obligation, or (iv) has been independently developed by you\nor any of your Representatives without reference to any of the Information.\nLOGO\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 2\nAccordingly, you hereby agree that:\n1. You and your Representatives (i) will keep the Information confidential and will not (except as required by applicable law, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the Company’s prior written consent, disclose any Information in any\nmanner whatsoever, in whole or in part, (ii) will not use any Information other than in connection with the Transaction; provided, however, that\nyou may reveal the Information or portions thereof to your Representatives (a) who need to know the Information for the purpose of evaluating\nthe Transaction, (b) who are informed by you of the confidential nature of the Information and (c) who are directed by you to treat the\nInformation in a manner consistent with the terms of this letter agreement. You will be responsible for any breach of this letter agreement by\nany of your Representatives. You and the Company shall be permitted to disclose the tax treatment and tax structure of the Transaction\n(including any materials, opinions or analyses relating to such tax treatment or tax structure, but without disclosure of identifying information\nor, except to the extent relating to such tax structure or tax treatment, any nonpublic commercial or financial information) on and after the\nearliest to occur of the date of (i) public announcement of discussions relating to the Transaction, (ii) public announcement of the Transaction\nor (iii) execution of a definitive agreement (with or without conditions) to enter into the Transaction; provided, however, that if the Transaction\nis not consummated for any reason, the provisions of this sentence shall cease to apply.\n2. You and your Representatives will not (except as required by applicable law, regulation or legal process, and only after compliance with\nparagraph 3 below), without the Company’s prior written consent, disclose to any person the fact that the Information exists or has been made\navailable, that you are considering the Transaction involving the Company, or that discussions or negotiations are taking or have taken place\nconcerning the Transaction or involving the Company or any term, condition or other fact relating to the Transaction or such discussions or\nnegotiations, including, without limitation, the status thereof or the subject matter of this letter agreement.\n3. In the event that you or any of your Representatives are requested pursuant to, or required by, applicable law, regulation or legal process to\ndisclose any of the Information, you will notify the Company promptly (unless prohibited by law) so that the Company may seek an\nappropriate protective order or other appropriate remedy or, in the Company’s sole discretion, waive compliance with the terms of this letter\nagreement (and if the Company seeks such an order, you will provide such cooperation as the Company shall reasonably request). In the event\nthat no such protective order or other remedy is obtained or that the Company waives compliance with the terms of this letter agreement and\nthat you or any of your Representatives are nonetheless legally compelled to disclose such Information, you or your Representatives, as the\ncase may be, will furnish only that portion of the Information which you are advised by counsel is legally required and will give the Company\nwritten notice (unless prohibited by law) of the Information to be disclosed as far in advance as practicable and exercise all reasonable efforts\nto obtain reliable assurance that confidential treatment will be accorded the Information.\n4. If you determine not to proceed with the Transaction, you will promptly inform Wells Fargo, of that decision and, in that case, and at any time\nupon the request of the Company or any of the Company Representatives, you will (i) promptly deliver to the Company at your own expense\nor, at the Company’s written request, destroy all copies, whether stored electronically or otherwise, of the written Information in your or your\nRepresentatives’ possession that was delivered to you by the Company or on its behalf and (ii) promptly destroy all analyses, compilations,\nsummaries, studies and other material prepared by you or your Representatives and based in whole or in part on, or otherwise containing or\nreflecting any of, the Information. You will confirm any such destruction to the Company in writing. Any orally disclosed Information will\ncontinue to be subject to the terms of this letter agreement. Notwithstanding the foregoing, and for the avoidance of doubt, neither you nor any\nof your Representatives shall be under any obligation to return or destroy any Information that you or any of your Representatives is required\nto retain pursuant to any laws or regulations, or pursuant to any internal rules required by laws or regulations, and you may retain one copy of\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 3\nthe information in a form acceptable to you at the office of your general counsel solely for the purpose of preserving a record of the\nInformation you or any of your representatives has received and of using such Information to defend yourself or any of your Representatives\nagainst any claims, lawsuit or other administrative or legal action, which may be threatened or instituted in connection with the Information.\n5. You acknowledge that neither the Company, nor Wells Fargo, nor any of the Company’s other Representatives, nor any of their respective\nofficers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the\n“Exchange Act”), make any representation or warranty, express or implied, as to the accuracy or completeness of the Information, and you\nagree that no such person will have any liability relating to the Information or for any errors therein or omissions therefrom. You further agree\nthat you are not entitled to rely on the accuracy or completeness of the Information and that you will be entitled to rely solely on such\nrepresentations and warranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and\nrestrictions as may be contained therein.\n6. You hereby acknowledge that you are aware, and that you will advise your Representatives who are informed of the matters that are the subject\nof this letter agreement, that the United States securities laws prohibit any person who has received from the issuer of such securities material,\nnonpublic information concerning the matters that are the subject of this letter agreement from purchasing or selling securities of such issuer or\nfrom communicating such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell\nsuch securities in reliance upon such information. You hereby represent that, as of the date hereof, you and your affiliates and associates (as\nsuch terms are defined in Rule 12b-2 of the Exchange Act), beneficially own in the aggregate less than 1.00% of the outstanding voting\nsecurities of the Company.\n7. Except as expressly contemplated thereby, your obligations under this letter agreement shall expire (i) upon the execution of a definitive\nagreement between you and the Company with respect to the Transaction or (ii) if such definitive agreement is not executed, three years from\nthe date of this letter agreement, as the case may be.\n8. You agree that, for a period of two years from the date of this letter agreement, neither you nor any of your affiliates (as such term is defined in\nRule 12b-2 of the Exchange Act) will (and neither you nor they will assist or encourage others to), without the prior written consent of the\nCompany or its Board of Directors: (i) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, directly or indirectly, by\npurchase or otherwise, ownership (including, without limitation, beneficial ownership as defined in Rule 13d-3 of the Exchange Act) of any\nvoting securities or direct or indirect rights or options to acquire any voting securities of the Company or any subsidiary thereof, or of any\nsuccessor to or person in control of the Company, any of the assets or businesses of the Company or any subsidiary or division thereof or of\nany such successor or controlling person or any bank debt, claims or other obligations of the Company or any rights or options to acquire\n(other than those currently owned) such ownership (including from a third party); (ii) enter into any contract, arrangement, understanding, plan\nor commitment in respect of any Derivative Securities (iii) seek or propose to influence or control the management or policies of the Company\nor to obtain representation on the Company’s Board of Directors, or solicit, or participate in the solicitation of, any proxies or consents with\nrespect to any securities of the Company, or make any public announcement with respect to any of the foregoing or request permission to do\nany of the foregoing; (iv) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any\nextraordinary transaction involving the Company or its securities or assets; or (v) enter into any discussions, negotiations, arrangements or\nunderstandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way participate in a “group” (as\ndefined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing. You will promptly\nadvise the Company of any inquiry or proposal made to you with respect to any of the foregoing unless you are prohibited from doing so in\nconnection with any existing confidentiality obligations you may have.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 4\nFor the purposes for this letter agreement, “Derivative Securities” means any securities that are the subject of any derivative or other\ntransaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of such securities due to\nthe fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether\n(i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is\ncapable of being or required to be settled by the payment of cash or through the delivery of such securities.\n9. You agree that, for a period of three years from the date of this letter agreement, you will not, without the prior written consent of Company,\ndirectly or indirectly, solicit for employment or hire any person who is now an employee of the Company; provided, however, that the\nforegoing provision will not prevent you from employing any such person who contacts you on his or her own initiative without any direct or\nindirect solicitation by or encouragement from you. You also agree that until the earlier of (a) the consummation of a Transaction between the\nCompany and you or (b) three years from the date of this letter agreement, you will not, without the prior written consent of the Company,\n(i) initiate or maintain contact (except in the ordinary course of business) with any officer, director, employee, supplier, distributor, broker or\ncustomer of the Company for the purposes of obtaining information regarding the Company’s operations, assets, prospects or finances or\n(ii) solicit or contract with any of the Company’s potential or actual suppliers, customers, distributors or brokers to the extent identified in the\nInformation except such that have entered into contracts or transactions with you or have engaged in negotiations with you in respect of\npotential contracts or transactions prior to the time of your receipt of such Information.\n10. You agree that all (i) communications regarding the Transaction, (ii) requests for additional information, facility tours or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be first submitted or directed to Wells\nFargo and not to the Company. You acknowledge and agree that (a) the Company and the Company Representatives are free to conduct the\nprocess relating to a possible Transaction as the Company and the Company Representatives, in their sole discretion, determine (including,\nwithout limitation, conduct of the due diligence process, negotiating with any prospective purchaser and entering into a preliminary or\ndefinitive agreement to effect a Transaction without prior notice to you or any other person), (b) the Company reserves the right, in its sole\ndiscretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to you or any other person,\nto reject any and all proposals made by you or any of your Representatives with respect to the Transaction and to terminate discussions and\nnegotiations with you at any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has\nbeen executed, neither the Company nor any of the Company Representatives will have any liability to you with respect to the Transaction or\nany obligation of any kind whatsoever with respect to a Transaction, whether by virtue of this letter agreement, any other written or oral\nexpression with respect to the Transaction or otherwise.\n11. The provisions of paragraph 8 hereof shall be inoperative and of no force or effect if, from and after the date hereof: (a) any person or group\nshall have acquired or entered into a binding definitive agreement that has been approved by the Board of Directors of the Company (or any\nduly constituted committee thereof composed entirely of independent directors) to acquire more than 50% of the Company or assets of the\nCompany or its subsidiaries representing more than 50% of the consolidated earnings power of the Company and its subsidiaries, taken as a\nwhole, (b) any person commences a tender or exchange offer which, if consummated, would result in such person’s acquisition of beneficial\nownership of more than 50% of the outstanding voting securities of the Company, and in connection therewith, the Company files with the\nSEC a Schedule 14D- 9 with respect to such offer; or (c) the Company’s Board of Directors (or any duly constituted committee thereof\ncomposed entirely of independent directors) shall have determined in good faith, after consultation with outside legal counsel, that the failure\nto waive, limit, amend, or otherwise modify this agreement would be reasonably likely to be inconsistent with the fiduciary duties of the\nCompany’s directors under applicable law; provided, however, that with respect to clauses (a), (b) and (c) of this sentence, you shall not have\nsolicited,\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 5\ninitiated, encouraged, or taken any action to facilitate or assist or participate with any such other person or group in connection with any of the\ntransactions contemplated by clauses (a), (b) and (c) of this sentence.\n12. You acknowledge that remedies at law may be inadequate to protect the Company against any actual or threatened breach of this letter\nagreement by the Company or the Company’s Representatives, and, without prejudice to any other rights and remedies otherwise available to\nthe Company, you agree to the granting of specific performance and injunctive or other equitable relief in the Company’s favor without proof\nof actual damages and you further agree to waive, and to use all reasonable efforts to cause your Representatives to waive, any requirement for\nthe securing or posting of any bond in connection with any such remedy. In the event of litigation relating to this letter agreement, if a court of\ncompetent jurisdiction determines in a final, nonappealable order that this letter agreement has been breached by either party or its\nRepresentatives, then the breaching party will reimburse the other party for its costs and expenses (including, without limitation, reasonable\nlegal fees and expenses) incurred in connection with all such litigation.\n13. You agree that no failure or delay by the Company or any of the Company Representatives in exercising any right hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right\nhereunder.\n14. This letter agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between\nresidents of Delaware and executed in and to be performed entirely within Delaware, without giving effect to any choice or conflict of law\nprovision or rule (whether of Oregon, Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other\nthan those of Delaware. Any legal suit, action or proceeding arising out of, based upon or relating to this Agreement shall be instituted in the\nfederal courts of the United States of America or the courts of the State of Oregon in each case located in the City of Portland and/or the\nCounty of Multnomah, Oregon, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or\nproceeding. Service of process, summons, notice or other document by mail shall be effective service of process for any suit, action or other\nproceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit,\naction or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or\nproceeding brought in any such court has been brought in an inconvenient forum.\n15. This letter agreement constitutes a binding agreement between you and the Company. No person other than you and the Company is intended\nto be a beneficiary of this letter agreement, and no person other than you and the Company shall have any right to enforce any term of this\nletter agreement.\n16. This letter agreement contains the entire agreement between you and the Company concerning the confidentiality of the Information, and no\nprovision of this letter agreement may be waived, amended or modified, in whole or in part, nor any consent given, unless approved in writing\nby a duly authorized representative of the Company, which writing specifically refers to this letter agreement and the provision so amended or\nmodified or for which such waiver or consent is given. In the event that any provision of this letter agreement is deemed invalid, illegal or\nunenforceable, the validity, legality and enforceability of the remaining provisions of this letter agreement will not in any way be affected or\nimpaired thereby.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 6\nPlease confirm your agreement with the foregoing by signing and returning a duplicate copy of this letter agreement, at which time this letter\nagreement shall become a binding agreement between you and the Company.\nVery truly yours,\nWELLS FARGO SECURITIES LLC,\nfor and on behalf of LaCrosse Footwear, Inc.\nBy: /s/ Samuel E. Farnham\nSamuel E. Farnham\nManaging Director\nAccepted and agreed to as of February 28, 2011:\nABC-MART, INC.\nBy:\n/s/ Minoru Noguchi\nName: Minoru Noguchi\nTitle: President	EX-3 4 d380892dex3.htm CONFIDENTIALITY AGREEMENT\nExhibit 3\n».LOGO\nWells Fargo Securities, LL.C\n301 South College Street\nCharlotte, NC 28288-8905\nFebruary 28, 2011\nABC-Mart, Inc.\nc/o Barclays Capital\n745 Seventh Avenue\nNew York, NY 10019\nAttention: Ari D. Berger, Managing Director\nRetail & Apparel Investment Banking Group\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nYou have expressed interest in pursuing the acquisition of LaCrosse Footwear, Inc. (the “Company”), which is represented by Wells Fargo\nSecurities LLC (“Wells Fargo™), through the purchase of all the capital stock of the Company (the “Transaction”). You have requested that the\nCompany or its representatives furnish you or your representatives with certain information relating to the Company or the Transaction. All such\ninformation (whether written or oral) furnished (whether before or after the date hereof) by the Company or its directors, officers, employees,\naffiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents (collectively, “the Company\nRepresentatives™) to you or your directors, officers, employees, affiliates, representatives (including, without limitation, financial advisors,\nattorneys and accountants) or agents (collectively, “your Representatives”) and all analyses, compilations, forecasts, studies or other documents\nprepared by you or your Representatives in connection with your or their review of, or your interest in, the Transaction which contain or reflect any\nsuch information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by you or your Representatives in violation of this letter agreement or other\nobligation of confidentiality, (ii) is already known to you at the time of its receipt form the Company or the Company Representatives, (iii) is or\nbecomes available to you on a nonconfidential basis from a source (other than the Company or its Representatives) not known by you to be\nprohibited from disclosing such information to you by a legal, contractual or fiduciary obligation, or (iv) has been independently developed by you\nor any of your Representatives without reference to any of the Information.\n».LOGO\nWells Fargo Securities, LLC February 28, 2011 Page 2 Accordingly, you hereby agree that: 1. You and your Representatives (i) will keep the Information confidential and will not (except as required by applicable law, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the Company’s prior written consent, disclose any Information in any\nmanner whatsoever, in whole or in part, (ii) will not use any Information other than in connection with the Transaction; provided, however, that\nyou may reveal the Information or portions thereof to your Representatives (a) who need to know the Information for the purpose of evaluating\nthe Transaction, (b) who are informed by you of the confidential nature of the Information and (c) who are directed by you to treat the\nInformation in a manner consistent with the terms of this letter agreement. You will be responsible for any breach of this letter agreement by\nany of your Representatives. You and the Company shall be permitted to disclose the tax treatment and tax structure of the Transaction\n(including any materials, opinions or analyses relating to such tax treatment or tax structure, but without disclosure of identifying information\nor, except to the extent relating to such tax structure or tax treatment, any nonpublic commercial or financial information) on and after the\nearliest to occur of the date of (i) public announcement of discussions relating to the Transaction, (ii) public announcement of the Transaction\nor (iii) execution of a definitive agreement (with or without conditions) to enter into the Transaction; provided, however, that if the Transaction\nis not consummated for any reason, the provisions of this sentence shall cease to apply.\nYou and your Representatives will not (except as required by applicable law, regulation or legal process, and only after compliance with\nparagraph 3 below), without the Company’s prior written consent, disclose to any person the fact that the Information exists or has been made\navailable, that you are considering the Transaction involving the Company, or that discussions or negotiations are taking or have taken place\nconcerning the Transaction or involving the Company or any term, condition or other fact relating to the Transaction or such discussions or\nnegotiations, including, without limitation, the status thereof or the subject matter of this letter agreement.\nIn the event that you or any of your Representatives are requested pursuant to, or required by, applicable law, regulation or legal process to\ndisclose any of the Information, you will notify the Company promptly (unless prohibited by law) so that the Company may seek an\nappropriate protective order or other appropriate remedy or, in the Company’s sole discretion, waive compliance with the terms of this letter\nagreement (and if the Company seeks such an order, you will provide such cooperation as the Company shall reasonably request). In the event\nthat no such protective order or other remedy is obtained or that the Company waives compliance with the terms of this letter agreement and\nthat you or any of your Representatives are nonetheless legally compelled to disclose such Information, you or your Representatives, as the\ncase may be, will furnish only that portion of the Information which you are advised by counsel is legally required and will give the Company\nwritten notice (unless prohibited by law) of the Information to be disclosed as far in advance as practicable and exercise all reasonable efforts\nto obtain reliable assurance that confidential treatment will be accorded the Information.\nIf you determine not to proceed with the Transaction, you will promptly inform Wells Fargo, of that decision and, in that case, and at any time\nupon the request of the Company or any of the Company Representatives, you will (i) promptly deliver to the Company at your own expense\nor, at the Company’s written request, destroy all copies, whether stored electronically or otherwise, of the written Information in your or your\nRepresentatives’ possession that was delivered to you by the Company or on its behalf and (ii) promptly destroy all analyses, compilations,\nsummaries, studies and other material prepared by you or your Representatives and based in whole or in part on, or otherwise containing or\nreflecting any of, the Information. You will confirm any such destruction to the Company in writing. Any orally disclosed Information will\ncontinue to be subject to the terms of this letter agreement. Notwithstanding the foregoing, and for the avoidance of doubt, neither you nor any\nof your Representatives shall be under any obligation to return or destroy any Information that you or any of your Representatives is required\nto retain pursuant to any laws or regulations, or pursuant to any internal rules required by laws or regulations, and you may retain one copy of\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 3\nthe information in a form acceptable to you at the office of your general counsel solely for the purpose of preserving a record of the\nInformation you or any of your representatives has received and of using such Information to defend yourself or any of your Representatives\nagainst any claims, lawsuit or other administrative or legal action, which may be threatened or instituted in connection with the Information.\n5. You acknowledge that neither the Company, nor Wells Fargo, nor any of the Company’s other Representatives, nor any of their respective\nofficers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the\n“Exchange Act”), make any representation or warranty, express or implied, as to the accuracy or completeness of the Information, and you\nagree that no such person will have any liability relating to the Information or for any errors therein or omissions therefrom. You further agree\nthat you are not entitled to rely on the accuracy or completeness of the Information and that you will be entitled to rely solely on such\nrepresentations and warranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and\nrestrictions as may be contained therein.\n6.  You hereby acknowledge that you are aware, and that you will advise your Representatives who are informed of the matters that are the subject\nof this letter agreement, that the United States securities laws prohibit any person who has received from the issuer of such securities material,\nnonpublic information concerning the matters that are the subject of this letter agreement from purchasing or selling securities of such issuer or\nfrom communicating such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell\nsuch securities in reliance upon such information. You hereby represent that, as of the date hereof, you and your affiliates and associates (as\nsuch terms are defined in Rule 12b-2 of the Exchange Act), beneficially own in the aggregate less than 1.00% of the outstanding voting\nsecurities of the Company.\n7.  Except as expressly contemplated thereby, your obligations under this letter agreement shall expire (i) upon the execution of a definitive\nagreement between you and the Company with respect to the Transaction or (ii) if such definitive agreement is not executed, three years from\nthe date of this letter agreement, as the case may be.\n8.  You agree that, for a period of two years from the date of this letter agreement, neither you nor any of your affiliates (as such term is defined in\nRule 12b-2 of the Exchange Act) will (and neither you nor they will assist or encourage others to), without the prior written consent of the\nCompany or its Board of Directors: (i) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, directly or indirectly, by\npurchase or otherwise, ownership (including, without limitation, beneficial ownership as defined in Rule 13d-3 of the Exchange Act) of any\nvoting securities or direct or indirect rights or options to acquire any voting securities of the Company or any subsidiary thereof, or of any\nsuccessor to or person in control of the Company, any of the assets or businesses of the Company or any subsidiary or division thereof or of\nany such successor or controlling person or any bank debt, claims or other obligations of the Company or any rights or options to acquire\n(other than those currently owned) such ownership (including from a third party); (ii) enter into any contract, arrangement, understanding, plan\nor commitment in respect of any Derivative Securities (iii) seek or propose to influence or control the management or policies of the Company\nor to obtain representation on the Company’s Board of Directors, or solicit, or participate in the solicitation of, any proxies or consents with\nrespect to any securities of the Company, or make any public announcement with respect to any of the foregoing or request permission to do\nany of the foregoing; (iv) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any\nextraordinary transaction involving the Company or its securities or assets; or (v) enter into any discussions, negotiations, arrangements or\nunderstandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way participate in a “group” (as\ndefined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing. You will promptly\nadvise the Company of any inquiry or proposal made to you with respect to any of the foregoing unless you are prohibited from doing so in\nconnection with any existing confidentiality obligations you may have.\nWells Fargo Securities, LLC February 28, 2011 Page 4 10. 11. For the purposes for this letter agreement, “Derivative Securities” means any securities that are the subject of any derivative or other\ntransaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of such securities due to\nthe fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether\n(i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is\ncapable of being or required to be settled by the payment of cash or through the delivery of such securities.\nYou agree that, for a period of three years from the date of this letter agreement, you will not, without the prior written consent of Company,\ndirectly or indirectly, solicit for employment or hire any person who is now an employee of the Company; provided, however, that the\nforegoing provision will not prevent you from employing any such person who contacts you on his or her own initiative without any direct or\nindirect solicitation by or encouragement from you. You also agree that until the earlier of (a) the consummation of a Transaction between the\nCompany and you or (b) three years from the date of this letter agreement, you will not, without the prior written consent of the Company,\n(i) initiate or maintain contact (except in the ordinary course of business) with any officer, director, employee, supplier, distributor, broker or\ncustomer of the Company for the purposes of obtaining information regarding the Company’s operations, assets, prospects or finances or\n(ii) solicit or contract with any of the Company’s potential or actual suppliers, customers, distributors or brokers to the extent identified in the\nInformation except such that have entered into contracts or transactions with you or have engaged in negotiations with you in respect of\npotential contracts or transactions prior to the time of your receipt of such Information.\nYou agree that all (i) communications regarding the Transaction, (ii) requests for additional information, facility tours or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be first submitted or directed to Wells\nFargo and not to the Company. You acknowledge and agree that (a) the Company and the Company Representatives are free to conduct the\nprocess relating to a possible Transaction as the Company and the Company Representatives, in their sole discretion, determine (including,\nwithout limitation, conduct of the due diligence process, negotiating with any prospective purchaser and entering into a preliminary or\ndefinitive agreement to effect a Transaction without prior notice to you or any other person), (b) the Company reserves the right, in its sole\ndiscretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to you or any other person,\nto reject any and all proposals made by you or any of your Representatives with respect to the Transaction and to terminate discussions and\nnegotiations with you at any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has\nbeen executed, neither the Company nor any of the Company Representatives will have any liability to you with respect to the Transaction or\nany obligation of any kind whatsoever with respect to a Transaction, whether by virtue of this letter agreement, any other written or oral\nexpression with respect to the Transaction or otherwise.\nThe provisions of paragraph 8 hereof shall be inoperative and of no force or effect if, from and after the date hereof: (a) any person or group\nshall have acquired or entered into a binding definitive agreement that has been approved by the Board of Directors of the Company (or any\nduly constituted committee thereof composed entirely of independent directors) to acquire more than 50% of the Company or assets of the\nCompany or its subsidiaries representing more than 50% of the consolidated earnings power of the Company and its subsidiaries, taken as a\nwhole, (b) any person commences a tender or exchange offer which, if consummated, would result in such person’s acquisition of beneficial\nownership of more than 50% of the outstanding voting securities of the Company, and in connection therewith, the Company files with the\nSEC a Schedule 14D- 9 with respect to such offer; or (c) the Company’s Board of Directors (or any duly constituted committee thereof\ncomposed entirely of independent directors) shall have determined in good faith, after consultation with outside legal counsel, that the failure\nto waive, limit, amend, or otherwise modify this agreement would be reasonably likely to be inconsistent with the fiduciary duties of the\nCompany’s directors under applicable law; provided, however, that with respect to clauses (a), (b) and (c) of this sentence, you shall not have\nsolicited,\nWells Fargo Securities, LLC February 28, 2011 Page 5 12. 13. 14. 15. 16. initiated, encouraged, or taken any action to facilitate or assist or participate with any such other person or group in connection with any of the\ntransactions contemplated by clauses (a), (b) and (c) of this sentence.\nYou acknowledge that remedies at law may be inadequate to protect the Company against any actual or threatened breach of this letter\nagreement by the Company or the Company’s Representatives, and, without prejudice to any other rights and remedies otherwise available to\nthe Company, you agree to the granting of specific performance and injunctive or other equitable relief in the Company’s favor without proof\nof actual damages and you further agree to waive, and to use all reasonable efforts to cause your Representatives to waive, any requirement for\nthe securing or posting of any bond in connection with any such remedy. In the event of litigation relating to this letter agreement, if a court of\ncompetent jurisdiction determines in a final, nonappealable order that this letter agreement has been breached by either party or its\nRepresentatives, then the breaching party will reimburse the other party for its costs and expenses (including, without limitation, reasonable\nlegal fees and expenses) incurred in connection with all such litigation.\nYou agree that no failure or delay by the Company or any of the Company Representatives in exercising any right hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right\nhereunder.\nThis letter agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between\nresidents of Delaware and executed in and to be performed entirely within Delaware, without giving effect to any choice or conflict of law\nprovision or rule (whether of Oregon, Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other\nthan those of Delaware. Any legal suit, action or proceeding arising out of, based upon or relating to this Agreement shall be instituted in the\nfederal courts of the United States of America or the courts of the State of Oregon in each case located in the City of Portland and/or the\nCounty of Multnomah, Oregon, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or\nproceeding. Service of process, summons, notice or other document by mail shall be effective service of process for any suit, action or other\nproceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit,\naction or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or\nproceeding brought in any such court has been brought in an inconvenient forum.\nThis letter agreement constitutes a binding agreement between you and the Company. No person other than you and the Company is intended\nto be a beneficiary of this letter agreement, and no person other than you and the Company shall have any right to enforce any term of this\nletter agreement.\nThis letter agreement contains the entire agreement between you and the Company concerning the confidentiality of the Information, and no\nprovision of this letter agreement may be waived, amended or modified, in whole or in part, nor any consent given, unless approved in writing\nby a duly authorized representative of the Company, which writing specifically refers to this letter agreement and the provision so amended or\nmodified or for which such waiver or consent is given. In the event that any provision of this letter agreement is deemed invalid, illegal or\nunenforceable, the validity, legality and enforceability of the remaining provisions of this letter agreement will not in any way be affected or\nimpaired thereby.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 6\nPlease confirm your agreement with the foregoing by signing and returning a duplicate copy of this letter agreement, at which time this letter\nagreement shall become a binding agreement between you and the Company.\nVery truly yours,\nWELLS FARGO SECURITIES LLC,\nfor and on behalf of LaCrosse Footwear, Inc.\nBy: /s/ Samuel E. Farnham\nSamuel E. Farnham\nManaging Director\nAccepted and agreed to as of February 28, 2011:\nABC-MART, INC.\nBy: /s/  Minoru Noguchi\nName: Minoru Noguchi\nTitle: President	EX-3 4 d380892dex3.htm CONFIDENTIALITY AGREEMENT\nExhibit 3\nLOGO\nWells Fargo Securities, LLC\n301 South College Street\nCharlotte, NC 28288-8905\nFebruary 28, 2011\nABC-Mart, Inc.\nc/o Barclays Capital\n745 Seventh Avenue\nNew York, NY 10019\nAttention:\nAri D. Berger, Managing Director\nRetail & Apparel Investment Banking Group\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nYou have expressed interest in pursuing the acquisition of LaCrosse Footwear, Inc. (the "Company"), which is represented by Wells Fargo\nSecurities LLC ("Wells Fargo"), through the purchase of all the capital stock of the Company (the "Transaction"). You have requested that the\nCompany or its representatives furnish you or your representatives with certain information relating to the Company or the Transaction. All such\ninformation (whether written or oral) furnished (whether before or after the date hereof) by the Company or its directors, officers, employees,\naffiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents (collectively, "the Company\nRepresentatives") to you or your directors, officers, employees, affiliates, representatives (including, without limitation, financial advisors,\nattorneys and accountants) or agents (collectively, "your Representatives") and all analyses, compilations, forecasts, studies or other documents\nprepared by you or your Representatives in connection with your or their review of, or your interest in, the Transaction which contain or reflect any\nsuch information is hereinafter referred to as the "Information." The term Information will not, however, include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by you or your Representatives in violation of this letter agreement or other\nobligation of confidentiality, (ii) is already known to you at the time of its receipt form the Company or the Company Representatives, (iii) is\nor\nbecomes available to you on a nonconfidential basis from a source (other than the Company or its Representatives) not known by you to be\nprohibited from disclosing such information to you by a legal, contractual or fiduciary obligation, or (iv) has been independently developed by you\nor any of your Representatives without reference to any of the Information.\nLOGO\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 2\nAccordingly, you hereby agree that:\n1.\nYou and your Representatives (i) will keep the Information confidential and will not (except as required by applicable law, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the Company's prior written consent, disclose any Information in any\nmanner whatsoever, in whole or in part, (ii) will not use any Information other than in connection with the Transaction; provided, however, that\nyou may reveal the Information or portions thereof to your Representatives (a) who need to know the Information for the purpose of evaluating\nthe Transaction, (b) who are informed by you of the confidential nature of the Information and (c) who are directed by you to treat the\nInformation in a manner consistent with the terms of this letter agreement. You will be responsible for any breach of this letter agreement by\nany\nof your Representatives. You and the Company shall be permitted to disclose the tax treatment and tax structure of the Transaction\n(including any materials, opinions or analyses relating to such tax treatment or tax structure, but without disclosure of identifying information\nor, except to the extent relating to such tax structure or tax treatment, any nonpublic commercial or financial information) on and after the\nearliest to occur of the date of (i) public announcement of discussions relating to the Transaction, (ii) public announcement of the Transaction\nor (iii) execution of a definitive agreement (with or without conditions) to enter into the Transaction; provided, however, that if the Transaction\nis not consummated for any reason, the provisions of this sentence shall cease to apply.\n2.\nYou and your Representatives will not (except as required by applicable law, regulation or legal process, and only after compliance with\nparagraph 3 below), without the Company's prior written consent, disclose to any person the fact that the Information exists or has been made\navailable, that you are considering the Transaction involving the Company, or that discussions or negotiations are taking or have taken place\nconcerning the Transaction or involving the Company or any term, condition or other fact relating to the Transaction or such discussions or\nnegotiations, including, without limitation, the status thereof or the subject matter of this letter agreement.\n3.\nIn the event that you or any of your Representatives are requested pursuant to, or required by, applicable law, regulation or legal process to\ndisclose any of the Information, you will notify the Company promptly (unless prohibited by law) so that the Company may seek an\nappropriate protective order or other appropriate remedy or, in the Company's sole discretion, waive compliance with the terms of this letter\nagreement (and if the Company seeks such an order, you will provide such cooperation as the Company shall reasonably request). In the event\nthat no such protective order or other remedy is obtained or that the Company waives compliance with the terms of this letter agreement and\nthat you or any of your Representatives are nonetheless legally compelled to disclose such Information, you or your Representatives, as the\ncase may be, will furnish only that portion of the Information which you are advised by counsel is legally required and will give the Company\nwritten notice (unless prohibited by law) of the Information to be disclosed as far in advance as practicable and exercise all reasonable efforts\nto obtain reliable assurance that confidential treatment will be accorded the Information.\n4. If you determine not to proceed with the Transaction, you will promptly inform Wells Fargo, of that decision and, in that case, and at any time\nupon the request of the Company or any of the Company Representatives, you will (i) promptly deliver to the Company at your own expense\nor, at the Company's written request, destroy all copies, whether stored electronically or otherwise, of the written Information in your or your\nRepresentatives' possession that was delivered to you by the Company or on its behalf and (ii) promptly destroy all analyses, compilations,\nsummaries, studies and other material prepared by you or your Representatives and based in whole or in part on, or otherwise containing or\nreflecting any of, the Information. You will confirm any such destruction to the Company in writing. Any orally disclosed Information will\ncontinue to be subject to the terms of this letter agreement. Notwithstanding the foregoing, and for the avoidance of doubt, neither you nor any\nof your Representatives shall be under any obligation to return or destroy any Information that you or any of your Representatives is required\nto retain pursuant to any laws or regulations, or pursuant to any internal rules required by laws or regulations, and you may retain one copy of\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 3\nthe information in a form acceptable to you at the office of your general counsel solely for the purpose of preserving a record of the\nInformation you or any of your representatives has received and of using such Information to defend yourself or any of your Representatives\nagainst any claims, lawsuit or other administrative or legal action, which may be threatened or instituted in connection with the Information.\n5.\nYou acknowledge that neither the Company, nor Wells Fargo, nor any of the Company's other Representatives, nor any of their respective\nofficers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the\n"Exchange Act"), make any representation or warranty, express or implied, as to the accuracy or completeness of the Information, and you\nagree that no such person will have any liability relating to the Information or for any errors therein or omissions therefrom. You further agree\nthat you are not entitled to rely on the accuracy or completeness of the Information and that you will be entitled to rely solely on such\nrepresentations and warranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and\nrestrictions as may be contained therein.\n6.\nYou hereby acknowledge that you are aware, and that you will advise your Representatives who are informed of the matters that are the subject\nof this letter agreement, that the United States securities laws prohibit any person who has received from the issuer of such securities material,\nnonpublic information concerning the matters that are the subject of this letter agreement from purchasing or selling securities of such issuer or\nfrom communicating such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell\nsuch securities in reliance upon such information. You hereby represent that, as of the date hereof, you and your affiliates and associates (as\nsuch terms are defined in Rule 12b-2 of the Exchange Act), beneficially own in the aggregate less than 1.00% of the outstanding voting\nsecurities of the Company.\n7.\nExcept as expressly contemplated thereby, your obligations under this letter agreement shall expire (i) upon the execution of a definitive\nagreement between you and the Company with respect to the Transaction or (ii) if such definitive agreement is not executed, three years from\nthe date of this letter agreement, as the case may be.\n8.\nYou agree that, for a period of two years from the date of this letter agreement, neither you nor any of your affiliates (as such term is defined in\nRule 12b-2 of the Exchange Act) will (and neither you nor they will assist or encourage others to), without the prior written consent of the\nCompany or its Board of Directors: (i) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, directly or indirectly, by\npurchase or otherwise, ownership (including, without limitation, beneficial ownership as defined in Rule 13d-3 of the Exchange Act) of any\nvoting securities or direct or indirect rights or options to acquire any voting securities of the Company or any subsidiary thereof, or of any\nsuccessor to or person in control of the Company, any of the assets or businesses of the Company or any subsidiary or division thereof or of\nany such successor or controlling person or any bank debt, claims or other obligations of the Company or any rights or options to acquire\n(other than those currently owned) such ownership (including from a third party); (ii) enter into any contract, arrangement, understanding, plan\nor commitment in respect of any Derivative Securities (iii) seek or propose to influence or control the management or policies of the Company\nor to obtain representation on the Company's Board of Directors, or solicit, or participate in the solicitation of, any proxies or consents with\nrespect to any securities of the Company, or make any public announcement with respect to any of the foregoing or request permission to do\nany of the foregoing; (iv) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions)\nany\nextraordinary transaction involving the Company or its securities or assets; or (v) enter into any discussions, negotiations, arrangements or\nunderstandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way participate in a "group" (as\ndefined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing. You will\npromptly\nadvise the Company of any inquiry or proposal made to you with respect to any of the foregoing unless you are prohibited from doing so in\nconnection with any existing confidentiality obligations you may have.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 4\nFor the purposes for this letter agreement, "Derivative Securities" means any securities that are the subject of any derivative or other\ntransaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of such securities due to\nthe fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether\n(i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is\ncapable of being or required to be settled by the payment of cash or through the delivery of such securities.\n9.\nYou agree that, for a period of three years from the date of this letter agreement, you will not, without the prior written consent of Company,\ndirectly or indirectly, solicit for employment or hire any person who is now an employee of the Company; provided, however, that the\nforegoing provision will not prevent you from employing any such person who contacts you on his or her own initiative without any direct or\nindirect solicitation by or encouragement from you. You also agree that until the earlier of (a) the consummation of a Transaction between the\nCompany and you or (b) three years from the date of this letter agreement, you will not, without the prior written consent of the Company,\n(i) initiate or maintain contact (except in the ordinary course of business) with any officer, director, employee, supplier, distributor, broker or\ncustomer of the Company for the purposes of obtaining information regarding the Company's operations, assets, prospects or finances or\n(ii) solicit or contract with any of the Company's potential or actual suppliers, customers, distributors or brokers to the extent identified in the\nInformation except such that have entered into contracts or transactions with you or have engaged in negotiations with you in respect of\npotential contracts or transactions prior to the time of your receipt of such Information.\n10. You agree that all (i) communications regarding the Transaction, (ii) requests for additional information, facility tours or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be first submitted or directed to Wells\nFargo and not to the Company. You acknowledge and agree that (a) the Company and the Company Representatives are free to conduct the\nprocess relating to a possible Transaction as the Company and the Company Representatives, in their sole discretion, determine (including,\nwithout limitation, conduct of the due diligence process, negotiating with any prospective purchaser and entering into a preliminary or\ndefinitive agreement to effect a Transaction without prior notice to you or any other person), (b) the Company reserves the right, in its sole\ndiscretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to you or any other person,\nto reject any and all proposals made by you or any of your Representatives with respect to the Transaction and to terminate discussions and\nnegotiations with you at any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has\nbeen executed, neither the Company nor any of the Company Representatives will have any liability to you with respect to the Transaction or\nany obligation of any kind whatsoever with respect to a Transaction, whether by virtue of this letter agreement, any other written or oral\nexpression with respect to the Transaction or otherwise.\n11. The provisions of paragraph 8 hereof shall be inoperative and of no force or effect if, from and after the date hereof: (a) any person or group\nshall have acquired or entered into a binding definitive agreement that has been approved by the Board of Directors of the Company (or any\nduly constituted committee thereof composed entirely of independent directors) to acquire more than 50% of the Company or assets of the\nCompany or its subsidiaries representing more than 50% of the consolidated earnings power of the Company and its subsidiaries, taken as a\nwhole, (b) any person commences a tender or exchange offer which, if consummated, would result in such person's acquisition of beneficial\nownership of more than 50% of the outstanding voting securities of the Company, and in connection therewith, the Company files with the\nSEC a Schedule 14D- with respect to such offer; or (c) the Company's Board of Directors (or any duly constituted committee thereof\ncomposed entirely of independent directors) shall have determined in good faith, after consultation with outside legal counsel, that the failure\nto waive, limit, amend, or otherwise modify this agreement would be reasonably likely to be inconsistent with the fiduciary duties of the\nCompany's directors under applicable law; provided, however, that with respect to clauses (a), (b) and (c) of this sentence, you shall not have\nsolicited,\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 5\ninitiated, encouraged, or taken any action to facilitate or assist or participate with any such other person or group in connection with any of the\ntransactions contemplated by clauses (a), (b) and (c) of this sentence.\n12. You acknowledge that remedies at law may be inadequate to protect the Company against any actual or threatened breach of this letter\nagreement by the Company or the Company's Representatives, and, without prejudice to any other rights and remedies otherwise available to\nthe Company, you agree to the granting of specific performance and injunctive or other equitable relief in the Company's favor without proof\nof actual damages and you further agree to waive, and to use all reasonable efforts to cause your Representatives to waive, any requirement for\nthe securing or posting of any bond in connection with any such remedy. In the event of litigation relating to this letter agreement, if a court of\ncompetent jurisdiction determines in a final, nonappealable order that this letter agreement has been breached by either party or its\nRepresentatives, then the breaching party will reimburse the other party for its costs and expenses (including, without limitation, reasonable\nlegal fees and expenses) incurred in connection with all such litigation.\n13. You agree that no failure or delay by the Company or any of the Company Representatives in exercising any right hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right\nhereunder.\n14. This letter agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between\nresidents of Delaware and executed in and to be performed entirely within Delaware, without giving effect to any choice or conflict of law\nprovision or rule (whether of Oregon, Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other\nthan those of Delaware. Any legal suit, action or proceeding arising out of, based upon or relating to this Agreement shall be instituted in the\nfederal courts of the United States of America or the courts of the State of Oregon in each case located in the City of Portland and/or the\nCounty of Multnomah, Oregon, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or\nproceeding. Service of process, summons, notice or other document by mail shall be effective service of process for any suit, action or other\nproceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit,\naction or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or\nproceeding brought in any such court has been brought in an inconvenient forum.\n15. This letter agreement constitutes a binding agreement between you and the Company. No person other than you and the Company is intended\nto be a beneficiary of this letter agreement, and no person other than you and the Company shall have any right to enforce any term of this\nletter agreement.\n16. This letter agreement contains the entire agreement between you and the Company concerning the confidentiality of the Information, and no\nprovision of this letter agreement may be waived, amended or modified, in whole or in part, nor any consent given, unless approved in writing\nby a duly authorized representative of the Company, which writing specifically refers to this letter agreement and the provision so amended or\nmodified or for which such waiver or consent is given. In the event that any provision of this letter agreement is deemed invalid, illegal or\nunenforceable, the validity, legality and enforceability of the remaining provisions of this letter agreement will not in any way be affected\nor\nimpaired thereby.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 6\nPlease confirm your agreement with the foregoing by signing and returning a duplicate copy of this letter agreement, at which time this letter\nagreement shall become a binding agreement between you and the Company.\nVery truly yours,\nWELLS FARGO SECURITIES LLC,\nfor and on behalf of LaCrosse Footwear, Inc.\nBy: /s/ Samuel E. Farnham\nSamuel E. Farnham\nManaging Director\nAccepted and agreed to as of February 28, 2011:\nABC-MART, INC.\nBy:\n/s/ Minoru Noguchi\nName: Minoru Noguchi\nTitle: President	EX-3 4 d380892dex3.htm CONFIDENTIALITY AGREEMENT\nExhibit 3\nLOGO\nWells Fargo Securities, LLC\n301 South College Street\nCharlotte, NC 28288-8905\nFebruary 28, 2011\nABC-Mart, Inc.\nc/o Barclays Capital\n745 Seventh Avenue\nNew York, NY 10019\nAttention:\nAri D. Berger, Managing Director\nRetail & Apparel Investment Banking Group\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nYou have expressed interest in pursuing the acquisition of LaCrosse Footwear, Inc. (the “Company”), which is represented by Wells Fargo\nSecurities LLC (“Wells Fargo”), through the purchase of all the capital stock of the Company (the “Transaction”). You have requested that the\nCompany or its representatives furnish you or your representatives with certain information relating to the Company or the Transaction. All such\ninformation (whether written or oral) furnished (whether before or after the date hereof) by the Company or its directors, officers, employees,\naffiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents (collectively, “the Company\nRepresentatives”) to you or your directors, officers, employees, affiliates, representatives (including, without limitation, financial advisors,\nattorneys and accountants) or agents (collectively, “your Representatives”) and all analyses, compilations, forecasts, studies or other documents\nprepared by you or your Representatives in connection with your or their review of, or your interest in, the Transaction which contain or reflect any\nsuch information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by you or your Representatives in violation of this letter agreement or other\nobligation of confidentiality, (ii) is already known to you at the time of its receipt form the Company or the Company Representatives, (iii) is or\nbecomes available to you on a nonconfidential basis from a source (other than the Company or its Representatives) not known by you to be\nprohibited from disclosing such information to you by a legal, contractual or fiduciary obligation, or (iv) has been independently developed by you\nor any of your Representatives without reference to any of the Information.\nLOGO\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 2\nAccordingly, you hereby agree that:\n1. You and your Representatives (i) will keep the Information confidential and will not (except as required by applicable law, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the Company’s prior written consent, disclose any Information in any\nmanner whatsoever, in whole or in part, (ii) will not use any Information other than in connection with the Transaction; provided, however, that\nyou may reveal the Information or portions thereof to your Representatives (a) who need to know the Information for the purpose of evaluating\nthe Transaction, (b) who are informed by you of the confidential nature of the Information and (c) who are directed by you to treat the\nInformation in a manner consistent with the terms of this letter agreement. You will be responsible for any breach of this letter agreement by\nany of your Representatives. You and the Company shall be permitted to disclose the tax treatment and tax structure of the Transaction\n(including any materials, opinions or analyses relating to such tax treatment or tax structure, but without disclosure of identifying information\nor, except to the extent relating to such tax structure or tax treatment, any nonpublic commercial or financial information) on and after the\nearliest to occur of the date of (i) public announcement of discussions relating to the Transaction, (ii) public announcement of the Transaction\nor (iii) execution of a definitive agreement (with or without conditions) to enter into the Transaction; provided, however, that if the Transaction\nis not consummated for any reason, the provisions of this sentence shall cease to apply.\n2. You and your Representatives will not (except as required by applicable law, regulation or legal process, and only after compliance with\nparagraph 3 below), without the Company’s prior written consent, disclose to any person the fact that the Information exists or has been made\navailable, that you are considering the Transaction involving the Company, or that discussions or negotiations are taking or have taken place\nconcerning the Transaction or involving the Company or any term, condition or other fact relating to the Transaction or such discussions or\nnegotiations, including, without limitation, the status thereof or the subject matter of this letter agreement.\n3. In the event that you or any of your Representatives are requested pursuant to, or required by, applicable law, regulation or legal process to\ndisclose any of the Information, you will notify the Company promptly (unless prohibited by law) so that the Company may seek an\nappropriate protective order or other appropriate remedy or, in the Company’s sole discretion, waive compliance with the terms of this letter\nagreement (and if the Company seeks such an order, you will provide such cooperation as the Company shall reasonably request). In the event\nthat no such protective order or other remedy is obtained or that the Company waives compliance with the terms of this letter agreement and\nthat you or any of your Representatives are nonetheless legally compelled to disclose such Information, you or your Representatives, as the\ncase may be, will furnish only that portion of the Information which you are advised by counsel is legally required and will give the Company\nwritten notice (unless prohibited by law) of the Information to be disclosed as far in advance as practicable and exercise all reasonable efforts\nto obtain reliable assurance that confidential treatment will be accorded the Information.\n4. If you determine not to proceed with the Transaction, you will promptly inform Wells Fargo, of that decision and, in that case, and at any time\nupon the request of the Company or any of the Company Representatives, you will (i) promptly deliver to the Company at your own expense\nor, at the Company’s written request, destroy all copies, whether stored electronically or otherwise, of the written Information in your or your\nRepresentatives’ possession that was delivered to you by the Company or on its behalf and (ii) promptly destroy all analyses, compilations,\nsummaries, studies and other material prepared by you or your Representatives and based in whole or in part on, or otherwise containing or\nreflecting any of, the Information. You will confirm any such destruction to the Company in writing. Any orally disclosed Information will\ncontinue to be subject to the terms of this letter agreement. Notwithstanding the foregoing, and for the avoidance of doubt, neither you nor any\nof your Representatives shall be under any obligation to return or destroy any Information that you or any of your Representatives is required\nto retain pursuant to any laws or regulations, or pursuant to any internal rules required by laws or regulations, and you may retain one copy of\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 3\nthe information in a form acceptable to you at the office of your general counsel solely for the purpose of preserving a record of the\nInformation you or any of your representatives has received and of using such Information to defend yourself or any of your Representatives\nagainst any claims, lawsuit or other administrative or legal action, which may be threatened or instituted in connection with the Information.\n5. You acknowledge that neither the Company, nor Wells Fargo, nor any of the Company’s other Representatives, nor any of their respective\nofficers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the\n“Exchange Act”), make any representation or warranty, express or implied, as to the accuracy or completeness of the Information, and you\nagree that no such person will have any liability relating to the Information or for any errors therein or omissions therefrom. You further agree\nthat you are not entitled to rely on the accuracy or completeness of the Information and that you will be entitled to rely solely on such\nrepresentations and warranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and\nrestrictions as may be contained therein.\n6. You hereby acknowledge that you are aware, and that you will advise your Representatives who are informed of the matters that are the subject\nof this letter agreement, that the United States securities laws prohibit any person who has received from the issuer of such securities material,\nnonpublic information concerning the matters that are the subject of this letter agreement from purchasing or selling securities of such issuer or\nfrom communicating such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell\nsuch securities in reliance upon such information. You hereby represent that, as of the date hereof, you and your affiliates and associates (as\nsuch terms are defined in Rule 12b-2 of the Exchange Act), beneficially own in the aggregate less than 1.00% of the outstanding voting\nsecurities of the Company.\n7. Except as expressly contemplated thereby, your obligations under this letter agreement shall expire (i) upon the execution of a definitive\nagreement between you and the Company with respect to the Transaction or (ii) if such definitive agreement is not executed, three years from\nthe date of this letter agreement, as the case may be.\n8. You agree that, for a period of two years from the date of this letter agreement, neither you nor any of your affiliates (as such term is defined in\nRule 12b-2 of the Exchange Act) will (and neither you nor they will assist or encourage others to), without the prior written consent of the\nCompany or its Board of Directors: (i) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, directly or indirectly, by\npurchase or otherwise, ownership (including, without limitation, beneficial ownership as defined in Rule 13d-3 of the Exchange Act) of any\nvoting securities or direct or indirect rights or options to acquire any voting securities of the Company or any subsidiary thereof, or of any\nsuccessor to or person in control of the Company, any of the assets or businesses of the Company or any subsidiary or division thereof or of\nany such successor or controlling person or any bank debt, claims or other obligations of the Company or any rights or options to acquire\n(other than those currently owned) such ownership (including from a third party); (ii) enter into any contract, arrangement, understanding, plan\nor commitment in respect of any Derivative Securities (iii) seek or propose to influence or control the management or policies of the Company\nor to obtain representation on the Company’s Board of Directors, or solicit, or participate in the solicitation of, any proxies or consents with\nrespect to any securities of the Company, or make any public announcement with respect to any of the foregoing or request permission to do\nany of the foregoing; (iv) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any\nextraordinary transaction involving the Company or its securities or assets; or (v) enter into any discussions, negotiations, arrangements or\nunderstandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way participate in a “group” (as\ndefined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing. You will promptly\nadvise the Company of any inquiry or proposal made to you with respect to any of the foregoing unless you are prohibited from doing so in\nconnection with any existing confidentiality obligations you may have.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 4\nFor the purposes for this letter agreement, “Derivative Securities” means any securities that are the subject of any derivative or other\ntransaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of such securities due to\nthe fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether\n(i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is\ncapable of being or required to be settled by the payment of cash or through the delivery of such securities.\n9. You agree that, for a period of three years from the date of this letter agreement, you will not, without the prior written consent of Company,\ndirectly or indirectly, solicit for employment or hire any person who is now an employee of the Company; provided, however, that the\nforegoing provision will not prevent you from employing any such person who contacts you on his or her own initiative without any direct or\nindirect solicitation by or encouragement from you. You also agree that until the earlier of (a) the consummation of a Transaction between the\nCompany and you or (b) three years from the date of this letter agreement, you will not, without the prior written consent of the Company,\n(i) initiate or maintain contact (except in the ordinary course of business) with any officer, director, employee, supplier, distributor, broker or\ncustomer of the Company for the purposes of obtaining information regarding the Company’s operations, assets, prospects or finances or\n(ii) solicit or contract with any of the Company’s potential or actual suppliers, customers, distributors or brokers to the extent identified in the\nInformation except such that have entered into contracts or transactions with you or have engaged in negotiations with you in respect of\npotential contracts or transactions prior to the time of your receipt of such Information.\n10. You agree that all (i) communications regarding the Transaction, (ii) requests for additional information, facility tours or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be first submitted or directed to Wells\nFargo and not to the Company. You acknowledge and agree that (a) the Company and the Company Representatives are free to conduct the\nprocess relating to a possible Transaction as the Company and the Company Representatives, in their sole discretion, determine (including,\nwithout limitation, conduct of the due diligence process, negotiating with any prospective purchaser and entering into a preliminary or\ndefinitive agreement to effect a Transaction without prior notice to you or any other person), (b) the Company reserves the right, in its sole\ndiscretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to you or any other person,\nto reject any and all proposals made by you or any of your Representatives with respect to the Transaction and to terminate discussions and\nnegotiations with you at any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has\nbeen executed, neither the Company nor any of the Company Representatives will have any liability to you with respect to the Transaction or\nany obligation of any kind whatsoever with respect to a Transaction, whether by virtue of this letter agreement, any other written or oral\nexpression with respect to the Transaction or otherwise.\n11. The provisions of paragraph 8 hereof shall be inoperative and of no force or effect if, from and after the date hereof: (a) any person or group\nshall have acquired or entered into a binding definitive agreement that has been approved by the Board of Directors of the Company (or any\nduly constituted committee thereof composed entirely of independent directors) to acquire more than 50% of the Company or assets of the\nCompany or its subsidiaries representing more than 50% of the consolidated earnings power of the Company and its subsidiaries, taken as a\nwhole, (b) any person commences a tender or exchange offer which, if consummated, would result in such person’s acquisition of beneficial\nownership of more than 50% of the outstanding voting securities of the Company, and in connection therewith, the Company files with the\nSEC a Schedule 14D- 9 with respect to such offer; or (c) the Company’s Board of Directors (or any duly constituted committee thereof\ncomposed entirely of independent directors) shall have determined in good faith, after consultation with outside legal counsel, that the failure\nto waive, limit, amend, or otherwise modify this agreement would be reasonably likely to be inconsistent with the fiduciary duties of the\nCompany’s directors under applicable law; provided, however, that with respect to clauses (a), (b) and (c) of this sentence, you shall not have\nsolicited,\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 5\ninitiated, encouraged, or taken any action to facilitate or assist or participate with any such other person or group in connection with any of the\ntransactions contemplated by clauses (a), (b) and (c) of this sentence.\n12. You acknowledge that remedies at law may be inadequate to protect the Company against any actual or threatened breach of this letter\nagreement by the Company or the Company’s Representatives, and, without prejudice to any other rights and remedies otherwise available to\nthe Company, you agree to the granting of specific performance and injunctive or other equitable relief in the Company’s favor without proof\nof actual damages and you further agree to waive, and to use all reasonable efforts to cause your Representatives to waive, any requirement for\nthe securing or posting of any bond in connection with any such remedy. In the event of litigation relating to this letter agreement, if a court of\ncompetent jurisdiction determines in a final, nonappealable order that this letter agreement has been breached by either party or its\nRepresentatives, then the breaching party will reimburse the other party for its costs and expenses (including, without limitation, reasonable\nlegal fees and expenses) incurred in connection with all such litigation.\n13. You agree that no failure or delay by the Company or any of the Company Representatives in exercising any right hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right\nhereunder.\n14. This letter agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between\nresidents of Delaware and executed in and to be performed entirely within Delaware, without giving effect to any choice or conflict of law\nprovision or rule (whether of Oregon, Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other\nthan those of Delaware. Any legal suit, action or proceeding arising out of, based upon or relating to this Agreement shall be instituted in the\nfederal courts of the United States of America or the courts of the State of Oregon in each case located in the City of Portland and/or the\nCounty of Multnomah, Oregon, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or\nproceeding. Service of process, summons, notice or other document by mail shall be effective service of process for any suit, action or other\nproceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit,\naction or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or\nproceeding brought in any such court has been brought in an inconvenient forum.\n15. This letter agreement constitutes a binding agreement between you and the Company. No person other than you and the Company is intended\nto be a beneficiary of this letter agreement, and no person other than you and the Company shall have any right to enforce any term of this\nletter agreement.\n16. This letter agreement contains the entire agreement between you and the Company concerning the confidentiality of the Information, and no\nprovision of this letter agreement may be waived, amended or modified, in whole or in part, nor any consent given, unless approved in writing\nby a duly authorized representative of the Company, which writing specifically refers to this letter agreement and the provision so amended or\nmodified or for which such waiver or consent is given. In the event that any provision of this letter agreement is deemed invalid, illegal or\nunenforceable, the validity, legality and enforceability of the remaining provisions of this letter agreement will not in any way be affected or\nimpaired thereby.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 6\nPlease confirm your agreement with the foregoing by signing and returning a duplicate copy of this letter agreement, at which time this letter\nagreement shall become a binding agreement between you and the Company.\nVery truly yours,\nWELLS FARGO SECURITIES LLC,\nfor and on behalf of LaCrosse Footwear, Inc.\nBy: /s/ Samuel E. Farnham\nSamuel E. Farnham\nManaging Director\nAccepted and agreed to as of February 28, 2011:\nABC-MART, INC.\nBy:\n/s/ Minoru Noguchi\nName: Minoru Noguchi\nTitle: President
+130c8ecc159401fc5c83d56200848a29.pdf	effective_date jurisdiction party term	EX-99.2 3 d262064dex992.htm NON-DISCLOSURE AGREEMENT DATED AS OF OCTOBER 7, 2011\nExhibit 99.2\nSTRICTLY CONFIDENTIAL\nOctober 7, 2011\nRussian Standard Vodka\nPulkovskoye Shosse, 46/2,\nSaint-Petersburg,\n196140, Russia\nAttention:\nIlya Blinov\nGeneral Manager\nRussian Standard Vodka\nDear Mr. Blinov:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated as of October 7, 2011 by and between Russian Standard Vodka (the\n“Receiving Party”) and Central European Distribution Corporation (together with its subsidiaries, the “Company”).\n1. Confidential Information; Representatives. (a) The Receiving Party has indicated interest in cooperation possibilities, and, in order\nto assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information\nconcerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to\nthe Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents, consultants,\nrelated investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons\nwith whom the Receiving Party plans to work with respect to a potential cooperation (only those who receive the Confidential Information and are\nacting on Recipient’s behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, “Representatives” of\nthe Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement.\n(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its\nbusiness, operations, strategy or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company and\nidentified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or\nstrategic plans, compilations, studies, data, reports, interpretations, projections, forecasts,\n1\nrecords, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary,\ncomputerized form or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy or\nprospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives or that otherwise reflect any conversations\nwith Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed “Confidential\nInformation”, it must be memorialized in writing, identified as confidential and provided to the Receiving Party in written form within five days of\nits disclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic\ninformation with respect to the Company to the Receiving Party prior to the execution and delivery of this Agreement.\n2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes available to the public other\nthan as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party’s or its Representatives’\npossession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the\nReceiving Party or its Representatives to be bound by any duty or obligation of confidentiality on a non-confidential basis to the Company with\nregards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this\nAgreement.\n3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its Representatives\nto, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided,\nhowever, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information to which the Company\ngives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s\nRepresentatives who reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such\ninformation in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach of the terms of this\nAgreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives.\n(b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the\nConfidential Information to (i) divert or attempt to divert any known business or customer of the Company or (ii) solicit for employment, or initiate\ncontact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not\nbased on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the\nhiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed by the Company at the time of such solicitation or\nhiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment.\n2\n4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party or except as may be required by\napplicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company\nRepresentatives (defined below) shall disclose to any person that any discussions or negotiations are taking place between the parties concerning a\npossible Transaction, including the content and status of such discussions or negotiations (the “Discussion Information”). With respect to the\nReceiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation in\nthe context of its discussions with the Company.\n5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if\nany) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential\nInformation at any time for any reason. Neither the Company nor any of its directors, officers. employees, agents, consultants, advisors, attorneys,\naccountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential\nInformation available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential\nInformation previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or\nwarranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company\nRepresentatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use\nof any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. Only those\nrepresentations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated\ntransaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal\neffect.\n6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return or\ndestroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents\nprepared by the Receiving Party or its Representatives that contain or reflect to a substantial degree any Confidential Information. Notwithstanding\nthe return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will\ncontinue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the\nforegoing, any return or destruction is subject to law, regulation and internal document retention policies.\n7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it\ndiscloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under\nthe terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency or as\n3\notherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly\nnotify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking\nsteps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such\nportion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be\ndisclosed and (d) take commercially reasonable efforts to cooperate with the Company (at the Company’s expense) in its efforts to obtain a\nprotective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that\nconfidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to\nbe disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the Confidential Information or\nany portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any\naspect of your or your Representatives’ business of that of its affiliates, provided that they shall advise the governmental or regulatory body of the\nconfidential nature of such information.\n8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to\na possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind\nwhatsoever with respect to such cooperation by virtue of this or any other written or oral expression by either of them or their Representatives\nexcept, in the case of this Agreement, for the matters specifically agreed to herein.\n9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made\nwhole by monetary damages only. Accordingly, each party, in addition to any other remedy to which it may be entitled in law or in equity, shall be\nentitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this\nAgreement.\n10. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the\nReceiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company’s financial and legal advisors, as\ndesignated by the Company in writing and other than contacts made or initiated in the ordinary course of business) any (a) communication\nconcerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation\nbetween the parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any\nofficer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to communication with the Chief Executive\nOfficer of the Company Bill Carey.\n4\n11. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been\nadvised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or\nselling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities. Notwithstanding the foregoing or anything to the contrary in this Agreement,\nthe Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party’s (or its Representatives’) ability to\ntrade in securities or instruments (whether physical or derivative) of the Company or any of its affiliates or subsidiaries.\n12. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with\nrespect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the\nCompany expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties\nand their respective successors and assigns.\n13. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder.\n14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without\nregard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the\njurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to\nthis Agreement: (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this\nAgreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of its Representatives;\n(c) irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this\nAgreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waive the right to plead or claim,\nand irrevocably and unconditionally agree not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is\nbrought in any state or federal court located in the State of New York has been brought in an inconvenient forum.\n15. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction issues a final, non-appealable\njudgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party\nhas incurred in connection with such litigation, including any appeal therefrom.\n5\n16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation\nof any provisions of this Agreement.\n17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of\nwhich shall constitute one and the same Agreement.\n18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n6\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.\nCENTRAL EUROPEAN DISTRIBUTION\nCORPORATION\nBy: /s/ Christopher Biedermann\nName: Christopher Biedermann\nTitle: CFO\nRussian Standard Vodka\nBy: /s/ Ilya Blinov\nName: Ilya Blinov\nTitle: General Manager\n7	EX-99.2 3 d262064dex992.htm NON-DISCLOSURE AGREEMENT DATED AS OF OCTOBER 7, 2011\nExhibit 99.2\nSTRICTLY CONFIDENTIAL\nOctober 7, 2011\nRussian Standard Vodka\nPulkovskoye Shosse, 46/2,\nSaint-Petersburg,\n196140, Russia\nAttention:  Ilya Blinov\nGeneral Manager\nRussian Standard Vodka\nDear Mr. Blinov:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated as of October 7, 2011 by and between Russian Standard Vodka (the\n“Receiving Party”) and Central European Distribution Corporation (together with its subsidiaries, the “Company”).\n1. Confidential Information; Representatives. (a) The Receiving Party has indicated interest in cooperation possibilities, and, in order\nto assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information\nconcerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to\nthe Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents, consultants,\nrelated investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons\nwith whom the Receiving Party plans to work with respect to a potential cooperation (only those who receive the Confidential Information and are\nacting on Recipient’s behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, “Representatives” of\nthe Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement.\n \n(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its\nbusiness, operations, strategy or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company and\nidentified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or\nstrategic plans, compilations, studies, data, reports, interpretations, projections, forecasts,\n1\nrecords, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary,\ncomputerized form or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy or\nprospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives or that otherwise reflect any conversations\nwith Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed “Confidential\nInformation”, it must be memorialized in writing, identified as confidential and provided to the Receiving Party in written form within five days of\nits disclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic\ninformation with respect to the Company to the Receiving Party prior to the execution and delivery of this Agreement.\n2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes available to the public other\nthan as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party’s or its Representatives’\npossession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the\nReceiving Party or its Representatives to be bound by any duty or obligation of confidentiality on a non-confidential basis to the Company with\nregards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this\nAgreement.\n3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its Representatives\nto, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided,\nhowever, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information to which the Company\ngives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s\nRepresentatives who reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such\ninformation in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach of the terms of this\nAgreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives.\n(b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the\nConfidential Information to (i) divert or attempt to divert any known business or customer of the Company or (ii) solicit for employment, or initiate\ncontact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not\nbased on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the\nhiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed by the Company at the time of such solicitation or\nhiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment.\n2\n4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party or except as may be required by\napplicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company\nRepresentatives (defined below) shall disclose to any person that any discussions or negotiations are taking place between the parties concerning a\npossible Transaction, including the content and status of such discussions or negotiations (the “Discussion Information”). With respect to the\nReceiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation in\nthe context of its discussions with the Company.\n5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if\nany) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential\nInformation at any time for any reason. Neither the Company nor any of its directors, officers. employees, agents, consultants, advisors, attorneys,\naccountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential\nInformation available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential\nInformation previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or\nwarranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company\nRepresentatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use\nof any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. Only those\nrepresentations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated\ntransaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal\neffect.\n6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return or\ndestroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents\nprepared by the Receiving Party or its Representatives that contain or reflect to a substantial degree any Confidential Information. Notwithstanding\nthe return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will\ncontinue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the\nforegoing, any return or destruction is subject to law, regulation and internal document retention policies.\n7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it\ndiscloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under\nthe terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency or as\n3\notherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly\nnotify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking\nsteps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such\nportion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be\ndisclosed and (d) take commercially reasonable efforts to cooperate with the Company (at the Company’s expense) in its efforts to obtain a\nprotective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that\nconfidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to\nbe disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the Confidential Information or\nany portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any\naspect of your or your Representatives’ business of that of its affiliates, provided that they shall advise the governmental or regulatory body of the\nconfidential nature of such information.\n8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to\na possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind\nwhatsoever with respect to such cooperation by virtue of this or any other written or oral expression by either of them or their Representatives\nexcept, in the case of this Agreement, for the matters specifically agreed to herein.\n9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made\nwhole by monetary damages only. Accordingly, each party, in addition to any other remedy to which it may be entitled in law or in equity, shall be\nentitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this\nAgreement.\n10. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the\nReceiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company’s financial and legal advisors, as\ndesignated by the Company in writing and other than contacts made or initiated in the ordinary course of business) any (a) communication\nconcerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation\nbetween the parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any\nofficer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to communication with the Chief Executive\nOfficer of the Company Bill Carey.\n11. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been\nadvised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or\nselling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities. Notwithstanding the foregoing or anything to the contrary in this Agreement,\nthe Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party’s (or its Representatives’) ability to\ntrade in securities or instruments (whether physical or derivative) of the Company or any of its affiliates or subsidiaries.\n12. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with\nrespect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the\nCompany expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties\nand their respective successors and assigns.\n13. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder.\n14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without\nregard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the\njurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to\nthis Agreement: (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this\nAgreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of its Representatives;\n(c) irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this\nAgreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waive the right to plead or claim,\nand irrevocably and unconditionally agree not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is\nbrought in any state or federal court located in the State of New York has been brought in an inconvenient forum.\n15. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction issues a final, non-appealable\njudgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party\nhas incurred in connection with such litigation, including any appeal therefrom.\n5\n16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation\nof any provisions of this Agreement.\n17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of\nwhich shall constitute one and the same Agreement.\n18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n6\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.\nCENTRAL EUROPEAN DISTRIBUTION\nCORPORATION\nBy:  /s/ Christopher Biedermann\nName: Christopher Biedermann\nTitle: CFO\nRussian Standard Vodka\nBy:  /s/Ilya Blinov\nName: Ilya Blinov\nTitle: General Manager	EX-99.2 3 d262064dex992.htm NON-DISCLOSURE AGREEMENT DATED AS OF OCTOBER 7, 2011\nExhibit 99.2\nSTRICTLY CONFIDENTIAL\nOctober 7, 2011\nRussian Standard Vodka\nPulkovskoye Shosse, 46/2,\nSaint-Petersburg,\n196140, Russia\nAttention:\nIlya Blinov\nGeneral Manager\nRussian Standard Vodka\nDear Mr. Blinov:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this "Agreement") is dated as of October 7, 2011 by and between Russian Standard Vodka (the\n"Receiving Party") and Central European Distribution Corporation (together with its subsidiaries, the "Company").\n1. Confidential Information; Representatives. (a) The Receiving Party has indicated interest in cooperation possibilities, and, in order\nto assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information\nconcerning the business, operations, strategy and prospects of the Company (all such information, the "Confidential Information"). As a condition to\nthe Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents, consultants,\nrelated investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons\nwith\nwhom the Receiving Party plans to work with respect to a potential cooperation (only those who receive the Confidential Information and are\nacting on Recipient's behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, "Representatives" of\nthe Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement.\n(b) The term "Confidential Information" shall include, without limitation, any and all information concerning the Company and its\nbusiness, operations, strategy or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company and\nidentified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or\nstrategic plans, compilations, studies, data, reports, interpretations, projections, forecasts,\n1\nrecords, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary,\ncomputerized form or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy or\nprospects prepared by or on behalf of the Receiving Party or any of the Receiving Party's Representatives or that otherwise reflect any conversations\nwith Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed "Confidential\nInformation", it must be memorialized in writing, identified as confidential and provided to the Receiving Party in written form within five days of\nits\ndisclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic\ninformation with respect to the Company to the Receiving Party prior to the execution and delivery of this Agreement.\n2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes available to the public other\nthan as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party's or its Representatives'\npossession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the\nReceiving Party or its Representatives to be bound by any duty or obligation of confidentiality on a non-confidential basis to the Company with\nregards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this\nAgreement.\n3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its Representatives\nto, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided,\nhowever, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information to which the Company\ngives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party's\nRepresentatives who reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such\ninformation in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach of the terms of this\nAgreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives.\n(b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the\nConfidential Information to (i) divert or attempt to divert any known business or customer of the Company or (ii) solicit for employment, or initiate\ncontact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not\nbased on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the\nhiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed by the Company at the time of such solicitation or\nhiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment.\n2\n4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party or except as may be required by\napplicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company\nRepresentatives (defined below) shall disclose to any person that any discussions or negotiations are taking place between the parties concerning\na\npossible Transaction, including the content and status of such discussions or negotiations (the "Discussion Information"). With respect to the\nReceiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation\nin\nthe context of its discussions with the Company.\n5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if\nany) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential\nInformation at any time for any reason. Neither the Company nor any of its directors, officers. employees, agents, consultants, advisors, attorneys,\naccountants and affiliates (collectively, the "Company Representatives") will be under any obligation to make any particular Confidential\nInformation available to the Receiving Party or any of the Receiving Party's Representatives or to supplement or update any Confidentia\nInformation previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or\nwarranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company\nRepresentatives will have any liability to the Receiving Party or to any of the Receiving Party's Representatives relating to or resulting from the use\nof any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. Only those\nrepresentations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated\ntransaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal\neffect.\n6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return or\ndestroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents\nprepared by the Receiving Party or its Representatives that contain or reflect to a substantial degree any Confidential Information. Notwithstanding\nthe return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will\ncontinue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the\nforegoing, any return or destruction is subject to law, regulation and internal document retention policies.\n7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it\ndiscloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under\nthe terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency or as\n3\notherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly\nnotify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking\nsteps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such\nportion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be\ndisclosed and (d) take commercially reasonable efforts to cooperate with the Company (at the Company's expense) in its efforts to obtain a\nprotective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that\nconfidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to\nbe disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the Confidential Information or\nany portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any\naspect of your or your Representatives' business of that of its affiliates, provided that they shall advise the governmental or regulatory body of the\nconfidential nature of such information.\n8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to\na possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind\nwhatsoever with respect to such cooperation by virtue of this or any other written or oral expression by either of them or their Representatives\nexcept, in the case of this Agreement, for the matters specifically agreed to herein.\n9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made\nwhole by monetary damages only. Accordingly, each party, in addition to any other remedy to which it may be entitled in law or in equity, shall\nbe\nentitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this\nAgreement.\n10. Communications. Without the Company's prior written consent, which may be withheld by the Company in its sole discretion, the\nReceiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company's financial and legal advisors, as\ndesignated by the Company in writing and other than contacts made or initiated in the ordinary course of business) any (a) communication\nconcerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation\nbetween the parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any\nofficer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to communication with the Chief Executive\nOfficer of the Company Bill Carey.\n4\n11. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been\nadvised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or\nselling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities. Notwithstanding the foregoing or anything to the contrary in this Agreement,\nthe Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party's (or its Representatives') ability to\ntrade in securities or instruments (whether physical or derivative) of the Company or any of its affiliates or subsidiaries.\n12. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with\nrespect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the\nCompany expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties\nand their respective successors and assigns.\n13. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder.\n14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without\nregard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the\njurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating\nto\nthis Agreement: (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this\nAgreement\nshall\nbe\neffective\nservice\nof\nprocess\nfor\nany\naction,\nsuit\nor\nproceeding\nbrought\nagainst\nthe\nReceiving\nParty\nor\nany\nof\nits\nRepresentatives;\n(c) irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this\nAgreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waive the right to plead or claim,\nand irrevocably and unconditionally agree not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is\nbrought in any state or federal court located in the State of New York has been brought in an inconvenient forum.\n15.\nExpenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction issues a final,\nnon-appealable\njudgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party\nhas incurred in connection with such litigation, including any appeal therefrom.\n5\n16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation\nof any provisions of this Agreement.\n17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of\nwhich shall constitute one and the same Agreement.\n18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n6\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.\nCENTRAL EUROPEAN DISTRIBUTION\nCORPORATION\nBy:\n/s/ Christopher Biedermann\nName: Christopher Biedermann\nTitle: CFO\nRussian Standard Vodka\nBy:\n/s/ Ilya Blinov\nName: Ilya Blinov\nTitle: General Manager\n7	EX-99.2 3 d262064dex992.htm NON-DISCLOSURE AGREEMENT DATED AS OF OCTOBER 7, 2011\nExhibit 99.2\nSTRICTLY CONFIDENTIAL\nOctober 7, 2011\nRussian Standard Vodka\nPulkovskoye Shosse, 46/2,\nSaint-Petersburg,\n196140, Russia\nAttention:\nIlya Blinov\nGeneral Manager\nRussian Standard Vodka\nDear Mr. Blinov:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated as of October 7, 2011 by and between Russian Standard Vodka (the\n“Receiving Party”) and Central European Distribution Corporation (together with its subsidiaries, the “Company”).\n1. Confidential Information; Representatives. (a) The Receiving Party has indicated interest in cooperation possibilities, and, in order\nto assist the Receiving Party in evaluating such cooperation, the Company is prepared to make available to the Receiving Party certain information\nconcerning the business, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a condition to\nthe Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents, consultants,\nrelated investment funds, advisors, attorneys, accountants, affiliates, potential sources of capital and financing, financial advisors and other persons\nwith whom the Receiving Party plans to work with respect to a potential cooperation (only those who receive the Confidential Information and are\nacting on Recipient’s behalf or in conjunction with the Recipient with respect to a potential cooperation possibility, collectively, “Representatives” of\nthe Receiving Party), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this Agreement.\n(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its\nbusiness, operations, strategy or prospects that is furnished to the Receiving Party or its Representatives by or on behalf of the Company and\nidentified as confidential, whether furnished on or after the date of this Agreement, including, without limitation, any written analyses, business or\nstrategic plans, compilations, studies, data, reports, interpretations, projections, forecasts,\n1\nrecords, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained or conveyed, whether documentary,\ncomputerized form or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy or\nprospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives or that otherwise reflect any conversations\nwith Company Representatives (as defined below) describing or relating thereto. For any information transmitted orally to be deemed “Confidential\nInformation”, it must be memorialized in writing, identified as confidential and provided to the Receiving Party in written form within five days of\nits disclosure to the Receiving Party. The Company acknowledges and agrees that neither it nor any of its Representatives have provided nonpublic\ninformation with respect to the Company to the Receiving Party prior to the execution and delivery of this Agreement.\n2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes available to the public other\nthan as a result of acts by the Receiving Party in breach of the terms of this Agreement, (b) was in the Receiving Party’s or its Representatives’\npossession nor to disclosure by the Company, (c) is disclosed to the Receiving Party or its Representatives by a third party not known by the\nReceiving Party or its Representatives to be bound by any duty or obligation of confidentiality on a non-confidential basis to the Company with\nregards to the information or (d) is independently developed by you or your Representatives without violating your obligations under this\nAgreement.\n3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall, and shall direct its Representatives\nto, keep the Confidential Information in confidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided,\nhowever, that (i) the Receiving Party may make any disclosure of information contained in the Confidential Information to which the Company\ngives its prior written consent, and (ii) any information contained in the Confidential Information may be disclosed to the Receiving Party’s\nRepresentatives who reasonably require access to such information for the purpose of evaluating a possible cooperation and who agree to keep such\ninformation in confidence to the same extent as described herein. The Receiving Party shall be responsible for any breach of the terms of this\nAgreement by the Receiving Party or the breach of the terms of this Agreement applicable to Representatives by any of its Representatives.\n(b) The Receiving Party agrees that, for a period of one (1) year from the date of this Agreement, the Receiving Party shall not use the\nConfidential Information to (i) divert or attempt to divert any known business or customer of the Company or (ii) solicit for employment, or initiate\ncontact for employment with, any known employee of the Company; provided, however, nothing will prohibit: (i) recruiting efforts that are not\nbased on confidential information or general advertisement or other recruiting efforts not specifically targeting employees of the Company and the\nhiring as a result, (ii) the solicitation and hiring of any individual who is no longer employed by the Company at the time of such solicitation or\nhiring and (iii) the hiring by you of anyone who initiates contact with you regarding such employment.\n2\n4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party or except as may be required by\napplicable law or regulation or other legal process, neither the Receiving Party or its Representatives nor the Company or its Company\nRepresentatives (defined below) shall disclose to any person that any discussions or negotiations are taking place between the parties concerning a\npossible Transaction, including the content and status of such discussions or negotiations (the “Discussion Information”). With respect to the\nReceiving Party, the foregoing shall not apply to persons with which the Receiving Party plans to work for the purpose of a possible cooperation in\nthe context of its discussions with the Company.\n5. No Representations by the Company. The Company will have the exclusive authority to decide what Confidential Information (if\nany) is to be made available to the Receiving Party and its Representatives, provided, that the Receiving Party may decline to receive Confidential\nInformation at any time for any reason. Neither the Company nor any of its directors, officers. employees, agents, consultants, advisors, attorneys,\naccountants and affiliates (collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential\nInformation available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update any Confidential\nInformation previously furnished. Neither the Company nor any of the Company Representatives has made or is making any representation or\nwarranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the Company nor any of the Company\nRepresentatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use\nof any Confidential Information or any inaccuracies or errors therein or omissions therefrom, absent fraud or willful misconduct. Only those\nrepresentations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated\ntransaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal\neffect.\n6. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return or\ndestroy, at its sole option, all copies of the Confidential Information to the Company, and all notes, studies, reports, memoranda and other documents\nprepared by the Receiving Party or its Representatives that contain or reflect to a substantial degree any Confidential Information. Notwithstanding\nthe return to the Company or destruction of Confidential Information pursuant to this Section 6, the Receiving Party and its Representatives will\ncontinue to be bound by their confidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the\nforegoing, any return or destruction is subject to law, regulation and internal document retention policies.\n7. Disclosure Pursuant to Law, Regulation, Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it\ndiscloses the Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion Information under\nthe terms of a subpoena or other order issued by a court of competent jurisdiction or by another governmental agency or as\n3\notherwise required pursuant to law, regulation or other legal process, the Receiving Party shall (if legally practicable or permitted) (a) promptly\nnotify the Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking\nsteps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion Information is required, furnish only such\nportion of the Confidential Information or Discussion Information as the Receiving Party is advised by outside legal counsel is legally required to be\ndisclosed and (d) take commercially reasonable efforts to cooperate with the Company (at the Company’s expense) in its efforts to obtain a\nprotective order or other relief to prevent the disclosure of the Confidential Information or Discussion Information or other reliable assurance that\nconfidential treatment will be accorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to\nbe disclosed. Notwithstanding the foregoing, the Receiving Party or its Representatives will be permitted to disclose the Confidential Information or\nany portion thereof upon the routine request of any government or regulatory body having or claiming to have authority to regulate or oversee any\naspect of your or your Representatives’ business of that of its affiliates, provided that they shall advise the governmental or regulatory body of the\nconfidential nature of such information.\n8. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to\na possible cooperation has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind\nwhatsoever with respect to such cooperation by virtue of this or any other written or oral expression by either of them or their Representatives\nexcept, in the case of this Agreement, for the matters specifically agreed to herein.\n9. Remedies. Each party acknowledges that in the event of any breach of the terms of this Agreement, the other party may not be made\nwhole by monetary damages only. Accordingly, each party, in addition to any other remedy to which it may be entitled in law or in equity, shall be\nentitled to seek, at its sole expense, an injunction (which shall include a temporary restraining order) to prevent breaches of the terms of this\nAgreement.\n10. Communications. Without the Company’s prior written consent, which may be withheld by the Company in its sole discretion, the\nReceiving Party shall not (and shall direct its Representatives not to) initiate (other than through the Company’s financial and legal advisors, as\ndesignated by the Company in writing and other than contacts made or initiated in the ordinary course of business) any (a) communication\nconcerning the Confidential Information, (b) requests for meetings with management of the Company in connection with the possible cooperation\nbetween the parties or (c) communication relating to the business of the Company or its affiliates or the possible cooperation, in each case, with any\nofficer, director or employee of the Company or any of its affiliates. The foregoing shall not apply to communication with the Chief Executive\nOfficer of the Company Bill Carey.\n4\n11. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been\nadvised that the United States securities laws may prohibit any person having non-public material information about a company from purchasing or\nselling securities of that company or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities. Notwithstanding the foregoing or anything to the contrary in this Agreement,\nthe Company acknowledges and agrees that this Agreement is in no way intended to restrict Receiving Party’s (or its Representatives’) ability to\ntrade in securities or instruments (whether physical or derivative) of the Company or any of its affiliates or subsidiaries.\n12. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with\nrespect to the matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the\nCompany expressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties\nand their respective successors and assigns.\n13. No Waiver. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder.\n14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without\nregard to the laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the\njurisdiction of the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to\nthis Agreement: (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this\nAgreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of its Representatives;\n(c) irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this\nAgreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waive the right to plead or claim,\nand irrevocably and unconditionally agree not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is\nbrought in any state or federal court located in the State of New York has been brought in an inconvenient forum.\n15. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction issues a final, non-appealable\njudgment, then the non-prevailing party shall be liable and pay to the prevailing party the reasonable legal fees and expenses such prevailing party\nhas incurred in connection with such litigation, including any appeal therefrom.\n5\n16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation\nof any provisions of this Agreement.\n17. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of\nwhich shall constitute one and the same Agreement.\n18. Termination. This Agreement shall terminate and be of no further force and effect one (1) year from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n6\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.\nCENTRAL EUROPEAN DISTRIBUTION\nCORPORATION\nBy: /s/ Christopher Biedermann\nName: Christopher Biedermann\nTitle: CFO\nRussian Standard Vodka\nBy: /s/ Ilya Blinov\nName: Ilya Blinov\nTitle: General Manager\n7
+14e1555b17437962f38c1ddc372fb4e0.pdf	effective_date jurisdiction party term	Exhibit L-1\nto Amended and Restated Loan Guarantee Agreement\nFORM OF RESTRICTED DATA SITE NONDISCLOSURE AGREEMENT FOR OUTSIDE LEGAL COUNSEL\n[FORM OF] NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated\n, 20 and is between\n(“Recipient”) and Georgia Power\nCompany, a Georgia corporation (“GPC”).\nRecipient is providing advisory and support services to the Department of Energy (“DOE”), Office of the General Counsel, Loan\nPrograms Office, under Matching Order DEM001-09CF01015 (the “Matching Order”).\nIn order to allow the Recipient to review the following documents (the “Confidential Information”):\ni.\nthe Amended and Restated Services Agreement, between GPC, acting for itself and as agent for the other Owners (as\nsuch term is defined therein, the “Owners”), and Westinghouse Electric Company LLC (“Westinghouse”) and WECTEC Global Project\nServices, Inc. (“WECTEC” and, together with Westinghouse, collectively, the “Service Provider”), dated as of July 20, 2017, as it may\nbe amended from time to time, for Units 3 & 4 at the Vogtle Electric Generating Plant in Waynesboro, Georgia (the “Project”; such\nagreement, the “Services Agreement”);\nii.\nan executed copy of the IP License, between GPC, acting for itself and as agent for the other Owners, and the Service\nProvider, dated as of July 20, 2017, as it may be amended from time to time (the “IP License”);\niii.\nan executed copy of the Facility IP License in the Event of Triggering Event, between GPC, acting for itself and as\nagent for the other Owners, and the Service Provider, dated as of July 20, 2017, as it may be amended from time to time (the\n“Triggering Event License” and, together with the IP License, the “Facility Licenses”);\niv.\nthe Contract for AP1000 Fuel Fabrication, Design and Related Services, dated as of April 3, 2009, between Southern\nNuclear Operating Company, Inc. (the “Operator”), acting as the agent of Georgia Power Company, collectively as owner, and\nWestinghouse, as amended by Amendment No. 1 dated as of June 21, 2012, (as it may be further amended from time to time, the “Fuel\nFabrication Agreement”); any other contract entered into after the date hereof by GPC or the Operator for the supply of fuel assemblies\nand/or related required software for the Project, as it may be amended from time to time (each, a “Fuel Supply Agreement”); the\nAmended and Restated License Agreement dated February 9, 2012, between the Operator, for itself and as agent for Alabama Power\nCompany and Georgia Power Company, collectively, as licensee, and Westinghouse (as it may be amended from time to time, the\n“License Agreement”); the agreement (if any), to be entered into after the date of this Agreement by Westinghouse and the Owners or\nGPC (acting for itself and as agent for the other Owners) if the AP1000-compatible version of Best Estimate Analysis for Core\nOperation Nuclear -\nExhibit L-1\n- Page1\nDirect Margin Monitor System and its related deliverables to be used in the operation of the Project (the “BEACON-\nDMM Software”) is not otherwise provided for the Project, pursuant to which the Owners will acquire the BEACON-\nDMM Software including a license for the use thereof (as such agreement may be amended from time to time, the “BEACON\nSoftware Agreement”);\nv.\nany notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to GPC, Oglethorpe Power Corporation, Municipal Electric Authority of Georgia, MEAG\nPower SPVJ, LLC, MEAG Power SPVM, LLC or MEAG Power SPVP, LLC (each a “DOE Borrower”), or the Operator or their\nparticipation in the Project, in each case that has, or could reasonably be expected to have, a Material Adverse Effect (as such term is\ndefined in the Amended and Restated Loan Guarantee Agreements by and between each DOE Borrower and DOE (the “DOE Loan\nGuarantee Agreements”)) or a material adverse effect on the ability of the Project to be completed or operated, only to the extent such\nitems contain Confidential and Proprietary Information as defined in the Services Agreement (“Confidential and Proprietary\nInformation”);\nvi.\nany notice and a copy of any of the following communications received by a DOE Borrower or the Operator from the\nNRC: (1) notice of a potential violation of severity level III or higher (or its equivalent in subsequent versions of the NRC Enforcement\nPolicy); (2) Red, Yellow or White NRC Inspection Finding (or its equivalent in subsequent versions of the Reactor Oversight Policy);\n(3) notice to stop work or shut down or show cause; (4) Demand for Information under 10 CFR § 50.54(f) or 10 CFR § 2.204; or (5) any\nother immediately effective, unilateral, docket-specific, non-routine communication requiring action by any licensee with respect to the\nProject, only to the extent such items contain Confidential and Proprietary Information;\nvii.\nany notice of any complaint, order, directive, claim, citation, designation or notice by any Governmental Authority (as\nsuch term is defined in the DOE Loan Guarantee Agreements) with respect to the Project received by a DOE Borrower or the Operator\nrelating to any actual or potential material non-compliance with its then-existing obligations under Environmental Laws (as such term is\ndefined in the DOE Loan Guarantee Agreements) and any written description of any steps that such DOE Borrower or the Operator is\ntaking and proposes to take with respect to the matters described in such notice, only to the extent such items contain Confidential and\nProprietary Information;\nviii.\nnotice and a copy of any stop work order issued by a DOE Borrower or the Operator with respect to any work on the\nProject, only to the extent such items contain Confidential and Proprietary Information;\nix.\nany notice of any termination, amendment or material waiver or breach of, or material notices and material\ncorrespondence with respect to, the Services Agreement, the Facility Licenses, the Fuel Fabrication Agreement, any other Fuel Supply\nAgreement, the BEACON Software Agreement (if any), or the License Agreement and any copy of any of the foregoing or any\nagreement, instrument or other document giving effect to any\nExhibit L-1\n- Page2\nTM\nTM\nTM\nof the foregoing, only to the extent such items contain Confidential and Proprietary Information;\nx.\nany notice of any event that constitutes an Event of Default, Potential Default, Mandatory Prepayment Event,\nPotential Mandatory Prepayment Event, Alternate Amortization Event or Potential Alternate Amortization Event (as such terms are\ndefined in the DOE Loan Guarantee Agreements) and any written description of any steps any DOE Borrower has taken or proposes to\ntake to remedy matters described in any such notice, only to the extent such items contain Confidential and Proprietary Information;\nxi.\nany notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to any DOE Borrower or the Operator or their participation in the Project, in each case that\nhas resulted in, or any DOE Borrower believes will result in, Public Inquiries (as such term is defined in the DOE Loan Guarantee\nAgreements), only to the extent such items contain Confidential and Proprietary Information;\nxii.\nany lien waivers and releases, with respect to all work reflected in any invoice of the Service Provider and, in the case\nof the invoice for the final payment from the DOE Borrowers under the Services Agreement, the Service Provider’s affidavit, only to the\nextent such items contain Confidential and Proprietary Information; and\nxiii.\nany other notice, document or communication required to be delivered to DOE by the Operator or any DOE Borrower\npursuant to the Loan Guarantee Agreement, only to the extent such items contain Confidential and Proprietary Information.\nthe parties agree as follows.\nFor the purposes of this Agreement, “Confidential Information” includes the entirety of documents identified in i-xii above, but\nexcludes any terms, conditions or information that have been Publicly Disclosed (as defined herein) or which Recipient has been authorized in\nwriting by GPC to publicly disclose (except pursuant to clause (3) of paragraph A below). For purposes of this Agreement, “Publicly Disclosed”\nmeans information which has become generally available to the public other than as a result of disclosure by Recipient in violation of the terms\nof this Agreement.\nA.\nIn connection with Recipient’s participation in providing the advisory and support services to the DOE, Office of the General\nCounsel, Loan Programs Office, under the Matching Order:\n(1)\nRecipient acknowledges that (a) pursuant to the terms of the Services Agreement, the Fuel Fabrication Agreement and the\nLicense Agreement, respectively, GPC may not disclose the Confidential Information until and unless the persons to whom\nsuch Confidential Information is disclosed agrees to keep such Confidential Information confidential and (b) Recipient and\npersons to whom\nExhibit L-1\n- Page3\nsuch Confidential Information is disclosed are not obligated to keep confidential any terms, conditions or information that have\nbeen Publicly Disclosed.\n(2)\nRecipient hereby acknowledges, agrees and understands that the Confidential Information is confidential and proprietary\nbusiness, technical and/or financial information of Westinghouse, WECTEC and/or GPC, and the disclosure of Confidential\nInformation could cause substantial harm to the competitive and commercial interests of Westinghouse, WECTEC and/or GPC.\n(3)\nRecipient hereby agrees and confirms that Recipient will protect the confidentiality of such Confidential Information, including\nany information or analysis derived from it, and not disclose it to any third party, except to the individuals and entities under\nthe circumstances described below in this paragraph. Specifically, Recipient will not disclose nor release any Confidential\nInformation, to anyone either during or after the period of performance of the Matching Order other than:\n(a)\nIndividuals within Recipient’s organization who are directly concerned with the performance of the Matching Order\nand who have executed an agreement in the same form as this Agreement or who are secretarial or word processing\npersonnel who Recipient has provided with the Confidential Information solely for the purpose of Recipient’s\nperformance of the Matching Order;\n(b)\nOther individuals who are employees of the United States’ government in connection with their work in relation to the\nDOE Borrowers’ DOE Loan Guarantees for the Project; and\n(c)\nAs required by law, including without limitation pursuant to any direction or an order from a court or federal office\n(e.g ., the Government Accountability Office) of competent jurisdiction, provided that Recipient shall provide written\nnotice to GPC, by email, fax or overnight courier at the addresses below or such other addresses as GPC may notify to\nRecipient in writing from time to time, in advance of any such disclosure so as to allow GPC the opportunity to seek\nto limit the extent of disclosure of the Confidential Information and/or to seek a protective order or other appropriate\nremedy (and/or waive compliance with the provisions of this Agreement); and if such limitation or protective order or\nother appropriate remedy is not obtained before Recipient is legally required to produce such Confidential Information\n(or compliance with the provisions of this Agreement is waived), Recipient after consultation with GPC shall disclose\nonly the minimum amount of Confidential Information that Recipient in good faith and in its sole discretion believes\nis legally required.\nGeorgia Power Company\nExhibit L-1\n- Page4\n241 Ralph McGill Blvd.\nBIN 10240\nAtlanta, GA 30308\nAttention: Office of the General Counsel\nFax: 404-506-2725\nEmail: mmlackey@southernco.com\nWith copies to:\nBalch & Bingham LLP\n1710 Sixth Avenue North\nBirmingham, AL 35203-2015\nAttention: Stan Blanton, Partner\nFax: (205) 488-5879\nEmail: SBLANTON@balch.com\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Office of the Chief Legal Officer\nFacsimile: 724-940-8508\nEmail: sweenemt@westinghouse.com\nWECTEC Global Project Services, Inc.\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Office of the Chief Legal Officer\nFacsimile: 724-940-8508\nEmail: sweenemt@westinghouse.com\nGPC’s agent, the Operator, will provide access to the Confidential Information on a secure confidential, password-protected\nelectronic data site (i.e ., read-only access) (the “Restricted Data Site”) that will allow Recipient to review the Confidential\nInformation on a need to know and use basis solely for the purpose of monitoring the Project for the DOE Borrowers’ DOE\nLoan Guarantees (and no other guaranteed loans or related projects).\nB.\nGPC acknowledges that Recipient may be required under the terms of the Matching Order to prepare written summaries of the\nConfidential Information (the “Summaries”) for review by DOE and such individuals as set forth in clause (3)(b) of paragraph A above. In\nRecipient’s review of the Confidential Information, Recipient shall be entitled to prepare such written notes and analyses as Recipient shall deem\nappropriate for purposes of preparing the Summaries.\nC.\nIn the event that DOE, pursuant to its rights under the DOE Loan Guarantee Agreements, delivers a written notification to GPC\ndirecting GPC to deliver a copy of a\nExhibit L-1\n- Page5\ndocument constituting Confidential Information to one or more attorneys at [Norton Rose Fulbright US LLP][Hunton Andrews Kurth LLP] (as\noutside counsel for DOE), GPC will, upon reasonable notice, deliver one copy of such Confidential Information (the “NRF {or Hunton} Copy”)\nto Recipient. In the event of such delivery, Recipient agrees to hold the NRF {or Hunton} Copy in the strictest confidence and to maintain the\nsecrecy and/or nonpublic nature of the NRF {or Hunton} Copy. Recipient shall number each additional copy of the NRF {or Hunton} Copy,\nwhich shall be treated in the same manner as the NRF {or Hunton} Copy, and shall allow only those individuals identified in clause (1)(a) of\nparagraph A above to have access to the NRF {or Hunton} Copy or any copy thereof; provided that Recipient shall be permitted to disclose the\nNRF {or Hunton} Copy as required by law, including without limitation pursuant to any direction or an order from a court or federal office (e.g .,\nthe Government Accountability Office) of competent jurisdiction, provided that Recipient shall provide written notice to GPC in advance of any\nsuch disclosure in accordance with, and shall follow the further procedures set out in, clause (3)(c) of paragraph A above. Recipient shall\nprovide notice to GPC of the number of additional copies of the NRF {or Hunton} Copy that have been made.\nD.\nConsistent with subpart (g) of the Nondisclosure Acknowledgement executed at the request of DOE by [Recipient][individuals\nwithin Recipient’s organization who are directly concerned with the performance of the Matching Order] (“Nondisclosure Acknowledgement”),\nRecipient acknowledges that the Confidential Information is Loan Guarantee Information and will be utilized in accordance with the task or\nsubtask assignment only and acknowledges that the disclosure of this Confidential Information is otherwise restricted by Westinghouse,\nWECTEC and/or GPC as submitters.\nE.\nRecipient hereby agrees that the representations and commitments made in subparts (a) and (h) of the Nondisclosure\nAcknowledgement extend to Confidential Information supplied by Westinghouse, WECTEC and/or GPC with respect to the use and review of\nthe Confidential Information.\nF.\nThis Agreement shall be governed in accordance with the laws of the State of New York without giving effect to any choice of\nlaw, provision, or rule (whether of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than\nNew York.\n[The remainder of this page is intentionally blank.]\nExhibit L-1\n- Page6\nACCEPTED AND AGREED\nBy:\nName:\nTitle:\nDate:\nACKNOWLEDGED AND AGREED\nGEORGIA POWER COMPANY\nBy:\nName:\nTitle:\nDate:\nExhibit L-1\n- Page7	ExhibitI.-1\nto Amended and Restated Loan Guarantee Agreement\nFORM OF RESTRICTED DATA SITE NONDISCLOSURE AGREEMENT FOR OUTSIDE LEGAL COUNSEL\n[FORM OF] NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated , 20 and is between (“Recipient”) and Georgia Power\nCompany, a Georgia corporation (“GPC”).\n \nRecipient is providing advisory and support services to the Department of Energy (“DOE”), Office of the General Counsel, Loan\nPrograms Office, under Matching Order DEM001-09CF01015 (the “Matching Order”).\n \nIn order to allow the Recipient to review the following documents (the “Confidential Information™):\nL the Amended and Restated Services Agreement, between GPC, acting for itself and as agent for the other Owners (as\nsuch term is defined therein, the “Owners”), and Westinghouse Electric Company LLC (“Westinghouse”) and WECTEC Global Project\nServices, Inc. (“WECTEC” and, together with Westinghouse, collectively, the “Service Provider”), dated as of July 20, 2017, as it may\nbe amended from time to time, for Units 3 & 4 at the Vogtle Electric Generating Plant in Waynesboro, Georgia (the “Project”; such\nagreement, the “Services Agreement”);\nii. an executed copy of the IP License, between GPC, acting for itself and as agent for the other Owners, and the Service\nProvider, dated as of July 20, 2017, as it may be amended from time to time (the “IP License”);\niil. an executed copy of the Facility IP License in the Event of Triggering Event, between GPC, acting for itself and as\nagent for the other Owners, and the Service Provider, dated as of July 20, 2017, as it may be amended from time to time (the\n“Triggering Event License” and, together with the IP License, the “Facility Licenses™);\n \niv. the Contract for AP1000 Fuel Fabrication, Design and Related Services, dated as of April 3, 2009, between Southern\nNuclear Operating Company, Inc. (the “Operator”), acting as the agent of Georgia Power Company, collectively as owner, and\nWestinghouse, as amended by Amendment No. 1 dated as of June 21, 2012, (as it may be further amended from time to time, the “Fuel\nFabrication Agreement”); any other contract entered into after the date hereof by GPC or the Operator for the supply of fuel assemblies\nand/or related required software for the Project, as it may be amended from time to time (each, a “Fuel Supply Agreement”); the\nAmended and Restated License Agreement dated February 9, 2012, between the Operator, for itself and as agent for Alabama Power\nCompany and Georgia Power Company, collectively, as licensee, and Westinghouse (as it may be amended from time to time, the\n“License Agreement”); the agreement (if any), to be entered into after the date of this Agreement by Westinghouse and the Owners or\nGPC (acting for itself and as agent for the other Owners) if the AP1000-compatible version of Best Estimate Analysis for Core\nOperation Nuclear -\n \n \nExhibit L-1 - Page 1\n \nDirect Margin Monitor™ System and its related deliverables to be used in the operation of the Project (the “BEACON-\nDMM™M Software”) is not otherwise provided for the Project, pursuant to which the Owners will acquire the BEACON-\nDMM™ Software including a license for the use thereof (as such agreement may be amended from time to time, the “BEACON\nSoftware Agreement”);\n \nV. any notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to GPC, Oglethorpe Power Corporation, Municipal Electric Authority of Georgia, MEAG\nPower SPVJ, LLC, MEAG Power SPVM, LLC or MEAG Power SPVP, LLC (each a “DOE Borrower”), or the Operator or their\nparticipation in the Project, in each case that has, or could reasonably be expected to have, a Material Adverse Effect (as such term is\ndefined in the Amended and Restated Loan Guarantee Agreements by and between each DOE Borrower and DOE (the “DOE Loan\nGuarantee Agreements™)) or a material adverse effect on the ability of the Project to be completed or operated, only to the extent such\nitems contain Confidential and Proprietary Information as defined in the Services Agreement (“Confidential and Proprietary\nInformation”);\nVi. any notice and a copy of any of the following communications received by a DOE Borrower or the Operator from the\nNRC: (1) notice of a potential violation of severity level III or higher (or its equivalent in subsequent versions of the NRC Enforcement\nPolicy); (2) Red, Yellow or White NRC Inspection Finding (or its equivalent in subsequent versions of the Reactor Oversight Policy);\n(3) notice to stop work or shut down or show cause; (4) Demand for Information under 10 CFR § 50.54(f) or 10 CFR § 2.204; or (5) any\nother immediately effective, unilateral, docket-specific, non-routine communication requiring action by any licensee with respect to the\nProject, only to the extent such items contain Confidential and Proprietary Information;\nvil. any notice of any complaint, order, directive, claim, citation, designation or notice by any Governmental Authority (as\nsuch term is defined in the DOE Loan Guarantee Agreements) with respect to the Project received by a DOE Borrower or the Operator\nrelating to any actual or potential material non-compliance with its then-existing obligations under Environmental Laws (as such term is\ndefined in the DOE Loan Guarantee Agreements) and any written description of any steps that such DOE Borrower or the Operator is\ntaking and proposes to take with respect to the matters described in such notice, only to the extent such items contain Confidential and\nProprietary Information;\nviil. notice and a copy of any stop work order issued by a DOE Borrower or the Operator with respect to any work on the\nProject, only to the extent such items contain Confidential and Proprietary Information;\nix. any notice of any termination, amendment or material waiver or breach of, or material notices and material\ncorrespondence with respect to, the Services Agreement, the Facility Licenses, the Fuel Fabrication Agreement, any other Fuel Supply\nAgreement, the BEACON Software Agreement (if any), or the License Agreement and any copy of any of the foregoing or any\nagreement, instrument or other document giving effect to any\nExhibit L-1 - Page 2\n \nof the foregoing, only to the extent such items contain Confidential and Proprietary Information;\nX. any notice of any event that constitutes an Event of Default, Potential Default, Mandatory Prepayment Event,\nPotential Mandatory Prepayment Event, Alternate Amortization Event or Potential Alternate Amortization Event (as such terms are\ndefined in the DOE Loan Guarantee Agreements) and any written description of any steps any DOE Borrower has taken or proposes to\ntake to remedy matters described in any such notice, only to the extent such items contain Confidential and Proprietary Information;\nxi. any notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to any DOE Borrower or the Operator or their participation in the Project, in each case that\nhas resulted in, or any DOE Borrower believes will result in, Public Inquiries (as such term is defined in the DOE Loan Guarantee\nAgreements), only to the extent such items contain Confidential and Proprietary Information;\nxil. any lien waivers and releases, with respect to all work reflected in any invoice of the Service Provider and, in the case\nof the invoice for the final payment from the DOE Borrowers under the Services Agreement, the Service Provider’s affidavit, only to the\nextent such items contain Confidential and Proprietary Information; and\nxiii. any other notice, document or communication required to be delivered to DOE by the Operator or any DOE Borrower\npursuant to the Loan Guarantee Agreement, only to the extent such items contain Confidential and Proprietary Information.\nthe parties agree as follows.\nFor the purposes of this Agreement, “Confidential Information” includes the entirety of documents identified in i-xii above, but\nexcludes any terms, conditions or information that have been Publicly Disclosed (as defined herein) or which Recipient has been authorized in\nwriting by GPC to publicly disclose (except pursuant to clause (3) of paragraph A below). For purposes of this Agreement, “Publicly Disclosed”\nmeans information which has become generally available to the public other than as a result of disclosure by Recipient in violation of the terms\nof this Agreement.\nA. In connection with Recipient’s participation in providing the advisory and support services to the DOE, Office of the General\nCounsel, Loan Programs Office, under the Matching Order:\nD Recipient acknowledges that (a) pursuant to the terms of the Services Agreement, the Fuel Fabrication Agreement and the\nLicense Agreement, respectively, GPC may not disclose the Confidential Information until and unless the persons to whom\nsuch Confidential Information is disclosed agrees to keep such Confidential Information confidential and (b) Recipient and\npersons to whom\nExhibit L-1 - Page 3\n \n@)\n®3)\nsuch Confidential Information is disclosed are not obligated to keep confidential any terms, conditions or information that have been Publicly Disclosed. Recipient hereby acknowledges, agrees and understands that the Confidential Information is confidential and proprietary business, technical and/or financial information of Westinghouse, WECTEC and/or GPC, and the disclosure of Confidential Information could cause substantial harm to the competitive and commercial interests of Westinghouse, WECTEC and/or GPC. Recipient hereby agrees and confirms that Recipient will protect the confidentiality of such Confidential Information, including any information or analysis derived from it, and not disclose it to any third party, except to the individuals and entities under the circumstances described below in this paragraph. Specifically, Recipient will not disclose nor release any Confidential Information, to anyone either during or after the period of performance of the Matching Order other than: (a)\n(b)\n(©\nIndividuals within Recipient’s organization who are directly concerned with the performance of the Matching Order\nand who have executed an agreement in the same form as this Agreement or who are secretarial or word processing\npersonnel who Recipient has provided with the Confidential Information solely for the purpose of Recipient’s\nperformance of the Matching Order;\nOther individuals who are employees of the United States’ government in connection with their work in relation to the\nDOE Borrowers’ DOE Loan Guarantees for the Project; and\nAs required by law, including without limitation pursuant to any direction or an order from a court or federal office\n(e.g., the Government Accountability Office) of competent jurisdiction, provided that Recipient shall provide written\nnotice to GPC, by email, fax or overnight courier at the addresses below or such other addresses as GPC may notify to\nRecipient in writing from time to time, in advance of any such disclosure so as to allow GPC the opportunity to seek\nto limit the extent of disclosure of the Confidential Information and/or to seek a protective order or other appropriate\nremedy (and/or waive compliance with the provisions of this Agreement); and if such limitation or protective order or\nother appropriate remedy is not obtained before Recipient is legally required to produce such Confidential Information\n(or compliance with the provisions of this Agreement is waived), Recipient after consultation with GPC shall disclose\nonly the minimum amount of Confidential Information that Recipient in good faith and in its sole discretion believes\nis legally required.\nGeorgia Power Company\nExhibit L-1 - Page 4\n \n241 Ralph McGill Blvd.\nBIN 10240\nAtlanta, GA 30308\nAttention: Office of the General Counsel\nFax: 404-506-2725\nEmail: mmlackey@southernco.com\nWith copies to:\nBalch & Bingham LLP\n1710 Sixth Avenue North\nBirmingham, AL 35203-2015\nAttention: Stan Blanton, Partner\nFax: (205) 488-5879\nEmail: SBLANTON@balch.com\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Office of the Chief Legal Officer\nFacsimile: 724-940-8508\nEmail: sweenemt@westinghouse.com\nWECTEC Global Project Services, Inc.\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Office of the Chief Legal Officer\nFacsimile: 724-940-8508\nEmail: sweenemt@westinghouse.com\nGPC'’s agent, the Operator, will provide access to the Confidential Information on a secure confidential, password-protected\nelectronic data site (i.e., read-only access) (the “Restricted Data Site”) that will allow Recipient to review the Confidential\nInformation on a need to know and use basis solely for the purpose of monitoring the Project for the DOE Borrowers’ DOE\nLoan Guarantees (and no other guaranteed loans or related projects).\nB. GPC acknowledges that Recipient may be required under the terms of the Matching Order to prepare written summaries of the\nConfidential Information (the “Summaries”) for review by DOE and such individuals as set forth in clause (3)(b) of paragraph A above. In\nRecipient’s review of the Confidential Information, Recipient shall be entitled to prepare such written notes and analyses as Recipient shall deem\nappropriate for purposes of preparing the Summaries.\nC. In the event that DOE, pursuant to its rights under the DOE Loan Guarantee Agreements, delivers a written notification to GPC\ndirecting GPC to deliver a copy of a\nExhibit L-1 - Page 5\n \ndocument constituting Confidential Information to one or more attorneys at [Norton Rose Fulbright US LLP][Hunton Andrews Kurth LLP] (as\noutside counsel for DOE), GPC will, upon reasonable notice, deliver one copy of such Confidential Information (the “NRF {or Hunton} Copy”)\nto Recipient. In the event of such delivery, Recipient agrees to hold the NRF {or Hunton} Copy in the strictest confidence and to maintain the\nsecrecy and/or nonpublic nature of the NRF {or Hunton} Copy. Recipient shall number each additional copy of the NRF {or Hunton} Copy,\nwhich shall be treated in the same manner as the NRF {or Hunton} Copy, and shall allow only those individuals identified in clause (1)(a) of\nparagraph A above to have access to the NRF {or Hunton} Copy or any copy thereof; provided that Recipient shall be permitted to disclose the\nNRF {or Hunton} Copy as required by law, including without limitation pursuant to any direction or an order from a court or federal office (e.g.,\nthe Government Accountability Office) of competent jurisdiction, provided that Recipient shall provide written notice to GPC in advance of any\nsuch disclosure in accordance with, and shall follow the further procedures set out in, clause (3)(c) of paragraph A above. Recipient shall\nprovide notice to GPC of the number of additional copies of the NRF {or Hunton} Copy that have been made.\nD. Consistent with subpart (g) of the Nondisclosure Acknowledgement executed at the request of DOE by [Recipient][individuals\nwithin Recipient’s organization who are directly concerned with the performance of the Matching Order] (“Nondisclosure Acknowledgement”),\nRecipient acknowledges that the Confidential Information is Loan Guarantee Information and will be utilized in accordance with the task or\nsubtask assignment only and acknowledges that the disclosure of this Confidential Information is otherwise restricted by Westinghouse,\nWECTEC and/or GPC as submitters.\nE. Recipient hereby agrees that the representations and commitments made in subparts (a) and (h) of the Nondisclosure\nAcknowledgement extend to Confidential Information supplied by Westinghouse, WECTEC and/or GPC with respect to the use and review of\nthe Confidential Information.\nF. This Agreement shall be governed in accordance with the laws of the State of New York without giving effect to any choice of\nlaw, provision, or rule (whether of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than\nNew York.\n[The remainder of this page is intentionally blank.]\nExhibit L-1 - Page 6\n \nACCEPTED AND AGREED\nBy:\nName:\nTitle:\nDate:\nACKNOWLEDGED AND AGREED\nGEORGIA POWER COMPANY\nBy:\nName:\nTitle:\nDate:\nExhibit L-1 - Page 7\n	Exhibit L-1\nto Amended and Restated Loan Guarantee Agreement\nFORM OF RESTRICTED DATA SITE NONDISCLOSURE AGREEMENT FOR OUTSIDE LEGAL COUNSEL\n[FORM OF] NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this "Agreement") is dated\n20 and is between\n("Recipient") and Georgia Power\nCompany, a Georgia corporation ("GPC").\nRecipient is providing advisory and support services to the Department of Energy ("DOE"), Office of the General Counsel, Loan\nPrograms Office, under Matching Order DEM001-09CF01015 (the "Matching. Order").\nIn order to allow the Recipient to review the following documents (the "Confidential Information"):\ni.\nthe Amended and Restated Services Agreement, between GPC, acting for itself and as agent for the other Owners (as\nsuch term is defined therein, the "Owners"), and Westinghouse Electric Company LLC ("Westinghouse") and WECTEC\nGlobal\nProject\nServices, Inc. ("WECTEC" and, together with Westinghouse, collectively, the "Service Provider"), dated as of July 20, 2017, as it may\nbe amended from time to time, for Units 3 & 4 at the Vogtle Electric Generating Plant in Waynesboro, Georgia (the "Project"; such\nagreement, the "Services Agreement");\nii.\nan executed copy of the IP License, between GPC, acting for itself and as agent for the other Owners, and the Service\nProvider, dated as of July 20, 2017, as it may be amended from time to time (the "IP License");\niii.\nan executed copy of the Facility IP License in the Event of Triggering Event, between GPC, acting for itself\nand\nas\nagent for the other Owners, and the Service Provider, dated as of July 20, 2017, as it may be amended from time to time (the\n"Triggering. Event License" and, together with the IP License, the "Facility Licenses");\niv.\nthe Contract for AP1000 Fuel Fabrication, Design and Related Services, dated as of April 3, 2009, between Southern\nNuclear Operating Company, Inc. (the "Operator"), acting as the agent of Georgia Power Company, collectively as owner, and\nWestinghouse, as amended by Amendment No. 1 dated as of June 21, 2012, (as it may be further amended from time to time, the "Fuel\nFabrication Agreement"); any other contract entered into after the date hereof by GPC or the Operator for the supply of fuel assemblies\nand/or related required software for the Project, as it may be amended from time to time (each, a "Fuel Supply Agreement"); the\nAmended and Restated License Agreement dated February 9, 2012, between the Operator, for itself and as agent for Alabama Power\nCompany and Georgia Power Company, collectively, as licensee, and Westinghouse (as it may be amended from time to time, the\n"License Agreement"); the agreement (if any), to be entered into after the date of this Agreement by Westinghouse and the Owners or\nGPC (acting for itself and as agent for the other Owners) if the AP1000-compatible version of Best Estimate Analysis for Core\nOperation Nuclear\nExhibit L-1 - Page 1\nDirect Margin MonitorTN System and its related deliverables to be used in the operation of the Project (the "BEACON-\nDMMIM Software") is not otherwise provided for the Project, pursuant to which the Owners will acquire the BEACON-\nDMMTM Software including a license for the use thereof (as such agreement may be amended from time to time, the "BEACON\nSoftware Agreement");\nV.\nany notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to GPC, Oglethorpe Power Corporation, Municipal Electric Authority of Georgia, MEAG\nPower SPVJ, LLC, MEAG Power SPVM, LLC or MEAG Power SPVP, LLC (each a "DOE Borrower"), or the Operator or their\nparticipation in the Project, in each case that has, or could reasonably be expected to have, a Material Adverse Effect (as such term is\ndefined in the Amended and Restated Loan Guarantee Agreements by and between each DOE Borrower and DOE (the "DOE Loan\nGuarantee Agreements")) or a material adverse effect on the ability of the Project to be completed or operated, only to the extent such\nitems contain Confidential and Proprietary Information as defined in the Services Agreement ("Confidential and Proprietary.\nInformation");\nvi.\nany notice and a copy of any of the following communications received by a DOE Borrower or the Operator from the\nNRC: (1) notice of a potential violation of severity level III or higher (or its equivalent in subsequent versions of the NRC Enforcement\nPolicy); (2) Red, Yellow or White NRC Inspection Finding (or its equivalent in subsequent versions of the Reactor Oversight Policy);\n(3) notice to stop work or shut down or show cause; (4) Demand for Information under 10 CFR 8 50.54(f) or 10 CFR 8 2.204; or (5) any\nother immediately effective, unilateral, docket-specific, non-routine communication requiring action by any licensee with respect to the\nProject, only to the extent such items contain Confidential and Proprietary Information;\nvii.\nany notice of any complaint, order, directive, claim, citation, designation or notice by any Governmental Authority (as\nsuch term is defined in the DOE Loan Guarantee Agreements) with respect to the Project received by a DOE Borrower or the Operator\nrelating to any actual or potential material non-compliance with its then-existing obligations under Environmenta Laws (as such term is\ndefined in the DOE Loan Guarantee Agreements) and any written description of any steps that such DOE Borrower or the Operator is\ntaking and proposes to take with respect to the matters described in such notice, only to the extent such items contain Confidential and\nProprietary Information;\nviii.\nnotice and a copy of any stop work order issued by a DOE Borrower or the Operator with respect to any work on the\nProject, only to the extent such items contain Confidential and Proprietary Information;\nix.\nany notice of any termination, amendment or material waiver or breach of, or material notices and material\ncorrespondence with respect to, the Services Agreement, the Facility Licenses, the Fuel Fabrication Agreement, any other Fuel Supply\nAgreement, the BEACON Software Agreement (if any), or the License Agreement and any copy of any of the foregoing or any\nagreement, instrument or other document giving effect to any\nExhibit L-1 Page 2\nof the foregoing, only to the extent such items contain Confidential and Proprietary Information;\nX.\nany notice of any event that constitutes an Event of Default, Potential Default, Mandatory Prepayment Event,\nPotential Mandatory Prepayment Event, Alternate Amortization Event or Potential Alternate Amortization Event (as such terms are\ndefined in the DOE Loan Guarantee Agreements) and any written description of any steps any DOE Borrower has taken or proposes to\ntake to remedy matters described in any such notice, only to the extent such items contain Confidential and Proprietary Information;\nxi.\nany notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to any DOE Borrower or the Operator or their participation in the Project, in each case that\nhas resulted in, or any DOE Borrower believes will result in, Public Inquiries (as such term is defined in the DOE Loan Guarantee\nAgreements), only to the extent such items contain Confidential and Proprietary Information;\nxii.\nany lien waivers and releases, with respect to all work reflected in any invoice of the Service Provider and, in the case\nof the invoice for the final payment from the DOE Borrowers under the Services Agreement, the Service Provider's affidavit, only to the\nextent such items contain Confidential and Proprietary Information; and\nxiii. any other notice, document or communication required to be delivered to DOE by the Operator or any DOE Borrower\npursuant to the Loan Guarantee Agreement, only to the extent such items contain Confidential and Proprietary Information.\nthe parties agree as follows.\nFor the purposes of this Agreement, "Confidential Information" includes the entirety of documents identified in i-xii above, but\nexcludes any terms, conditions or information that have been Publicly Disclosed (as defined herein) or which Recipient has been authorized in\nwriting by GPC to publicly disclose (except pursuant to clause (3) of paragraph A below). For purposes of this Agreement, "Publicly Disclosed"\nmeans information which has become generally available to the public other than as a result of disclosure by Recipient in violation of the terms\nof this Agreement.\nA.\nIn connection with Recipient's participation in providing the advisory and support services to the DOE, Office of the General\nCounsel, Loan Programs Office, under the Matching Order:\n(1)\nRecipient acknowledges that (a) pursuant to the terms of the Services Agreement, the Fuel Fabrication Agreement and the\nLicense Agreement, respectively, GPC may not disclose the Confidential Information until and unless the persons to whom\nsuch Confidential Information is disclosed agrees to keep such Confidential Information confidential and (b) Recipient and\npersons to whom\nExhibit L-1 - Page 3\nsuch Confidential Information is disclosed are not obligated to keep confidential any terms, conditions or information that have\nbeen Publicly Disclosed.\n(2)\nRecipient hereby acknowledges, agrees and understands that the Confidential Information is confidential and proprietary\nbusiness, technical and/or financial information of Westinghouse, WECTEC and/or GPC, and the disclosure of Confidential\nInformation could cause substantial harm to the competitive and commercial interests of Westinghouse, WECTEC and/or GPC.\n(3)\nRecipient hereby agrees and confirms that Recipient will protect the confidentiality of such Confidential Information, including\nany information or analysis derived from it, and not disclose it to any third party, except to the individuals and entities under\nthe circumstances described below in this paragraph. Specifically, Recipient will not disclose nor release any Confidential\nInformation, to anyone either during or after the period of performance of the Matching Order other than:\n(a)\nIndividuals within Recipient's organization who are directly concerned with the performance of the Matching Order\nand who have executed an agreement in the same form as this Agreement or who are secretarial or word processing\npersonnel who Recipient has provided with the Confidential Information solely for the purpose of Recipient's\nperformance of the Matching Order;\n(b)\nOther individuals who are employees of the United States' government in connection with their work in relation to the\nDOE Borrowers' DOE Loan Guarantees for the Project; and\n(c)\nAs required by law, including without limitation pursuant to any direction or an order from a court or federal office\n(e.g., the Government Accountability Office) of competent jurisdiction, provided that Recipient shall provide written\nnotice to GPC, by email, fax or overnight courier at the addresses below or such other addresses as GPC may notify to\nRecipient in writing from time to time, in advance of any such disclosure SO as to allow GPC the opportunity to seek\nto limit the extent of disclosure of the Confidential Information and/or to seek a protective order or other appropriate\nremedy (and/or waive compliance with the provisions of this Agreement); and if such limitation or protective order or\nother appropriate remedy is not obtained before Recipient is legally required to produce such Confidential Information\n(or compliance with the provisions of this Agreement is waived), Recipient after consultation with GPC shall disclose\nonly the minimum amount of Confidential Information that Recipient in good faith and in its sole discretion believes\nis legally required.\nGeorgia Power Company\nExhibit L-1 - Page 4\n241 Ralph McGill Blvd.\nBIN 10240\nAtlanta, GA 30308\nAttention: Office of the General Counsel\nFax: 404-506-2725\nEmail: mmlackey@southernco.com\nWith copies to:\nBalch & Bingham LLP\n1710 Sixth Avenue North\nBirmingham, AL 35203-2015\nAttention: Stan Blanton, Partner\nFax: (205) 488-5879\nEmail: SBLANTON@balch.com\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Office of the Chief Legal Officer\nFacsimile: 724-940-8508\nEmail: sweenemt@westinghouse.com\nWECTEC Global Project Services, Inc.\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Office of the Chief Legal Officer\nFacsimile: 724-940-8508\nEmail: sweenemt@westinghouse.com\nGPC's agent, the Operator, will provide access to the Confidential Information on a secure confidential, password-protected\nelectronic data site (i.e., read-only access) (the "Restricted Data Site") that will allow Recipient to review the Confidential\nInformation on a need to know and use basis solely for the purpose of monitoring the Project for the DOE Borrowers' DOE\nLoan Guarantees (and no other guaranteed loans or related projects).\nB.\nGPC acknowledges that Recipient may be required under the terms of the Matching Order to prepare written summaries of the\nConfidential Information (the "Summaries") for review by DOE and such individuals as set forth in clause (3)(b) of paragraph A above. In\nRecipient's review of the Confidential Information, Recipient shall be entitled to prepare such written notes and analyses as Recipient shall deem\nappropriate for purposes of preparing the Summaries.\nC.\nIn the event that DOE, pursuant to its rights under the DOE Loan Guarantee Agreements, delivers a written notification to GPC\ndirecting GPC to deliver a copy of a\nExhibit L-1 - Page 5\ndocument constituting Confidential Information to one or more attorneys at [Norton Rose Fulbright US LP][Hunton Andrews Kurth LLP] (as\noutside counsel for DOE), GPC will, upon reasonable notice, deliver one copy of such Confidential Information (the "NRF {or Hunton} Copy")\nto Recipient. In the event of such delivery, Recipient agrees to hold the NRF {or Hunton} Copy in the strictest confidence and to maintain the\nsecrecy and/or nonpublic nature of the NRF {or Hunton} Copy. Recipient shall number each additional copy of the NRF {or Hunton} Copy,\nwhich shall be treated in the same manner as the NRF {or Hunton} Copy, and shall allow only those individuals identified in clause (1)(a) of\nparagraph A above to have access to the NRF {or Hunton} Copy or any copy thereof; provided that Recipient shall be permitted to disclose the\nNRF {or Hunton} Copy as required by law, including without limitation pursuant to any direction or an order from a court or federal office (e.g.,\nthe\nGovernment Accountability Office) of competent jurisdiction, provided that Recipient shall provide written notice to GPC in advance of any\nsuch disclosure in accordance with, and shall follow the further procedures set out in, clause (3)(c) of paragraph A above. Recipient shall\nprovide notice to GPC of the number of additional copies of the NRF {or Hunton} Copy that have been made.\nD.\nConsistent with subpart (g) of the Nondisclosure Acknowledgement executed at the request of DOE by [Recipient][individuals\nwithin Recipient's organization who are directly concerned with the performance of the Matching Order] ("Nondisclosure Acknowledgement"),\nRecipient acknowledges that the Confidential Information is Loan Guarantee Information and will be utilized in accordance with the task or\nsubtask assignment only and acknowledges that the disclosure of this Confidential Information is otherwise restricted by Westinghouse,\nWECTEC and/or GPC as submitters.\nE.\nRecipient hereby agrees that the representations and commitments made in subparts (a) and (h) of the Nondisclosure\nAcknowledgement extend to Confidential Information supplied by Westinghouse, WECTEC and/or GPC with respect to the use and review of\nthe Confidential Information.\nF.\nThis Agreement shall be governed in accordance with the laws of the State of New York without giving effect to any choice\nof\nlaw, provision, or rule (whether of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than\nNew York.\n[The remainder of this page is intentionally blank.]\nExhibit L-1 - Page 6\nACCEPTED AND AGREED\nBy:\nName:\nTitle:\nDate:\nACKNOWLEDGED AND AGREED\nGEORGIA POWER COMPANY\nBy:\nName:\nTitle:\nDate:\nExhibit L-1 - Page 7	Exhibit L-1\nto Amended and Restated Loan Guarantee Agreement\nFORM OF RESTRICTED DATA SITE NONDISCLOSURE AGREEMENT FOR OUTSIDE LEGAL COUNSEL\n[FORM OF] NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated\n, 20 and is between\n(“Recipient”) and Georgia Power\nCompany, a Georgia corporation (“GPC”).\nRecipient is providing advisory and support services to the Department of Energy (“DOE”), Office of the General Counsel, Loan\nPrograms Office, under Matching Order DEM001-09CF01015 (the “Matching Order”).\nIn order to allow the Recipient to review the following documents (the “Confidential Information”):\ni.\nthe Amended and Restated Services Agreement, between GPC, acting for itself and as agent for the other Owners (as\nsuch term is defined therein, the “Owners”), and Westinghouse Electric Company LLC (“Westinghouse”) and WECTEC Global Project\nServices, Inc. (“WECTEC” and, together with Westinghouse, collectively, the “Service Provider”), dated as of July 20, 2017, as it may\nbe amended from time to time, for Units 3 & 4 at the Vogtle Electric Generating Plant in Waynesboro, Georgia (the “Project”; such\nagreement, the “Services Agreement”);\nii.\nan executed copy of the IP License, between GPC, acting for itself and as agent for the other Owners, and the Service\nProvider, dated as of July 20, 2017, as it may be amended from time to time (the “IP License”);\niii.\nan executed copy of the Facility IP License in the Event of Triggering Event, between GPC, acting for itself and as\nagent for the other Owners, and the Service Provider, dated as of July 20, 2017, as it may be amended from time to time (the\n“Triggering Event License” and, together with the IP License, the “Facility Licenses”);\niv.\nthe Contract for AP1000 Fuel Fabrication, Design and Related Services, dated as of April 3, 2009, between Southern\nNuclear Operating Company, Inc. (the “Operator”), acting as the agent of Georgia Power Company, collectively as owner, and\nWestinghouse, as amended by Amendment No. 1 dated as of June 21, 2012, (as it may be further amended from time to time, the “Fuel\nFabrication Agreement”); any other contract entered into after the date hereof by GPC or the Operator for the supply of fuel assemblies\nand/or related required software for the Project, as it may be amended from time to time (each, a “Fuel Supply Agreement”); the\nAmended and Restated License Agreement dated February 9, 2012, between the Operator, for itself and as agent for Alabama Power\nCompany and Georgia Power Company, collectively, as licensee, and Westinghouse (as it may be amended from time to time, the\n“License Agreement”); the agreement (if any), to be entered into after the date of this Agreement by Westinghouse and the Owners or\nGPC (acting for itself and as agent for the other Owners) if the AP1000-compatible version of Best Estimate Analysis for Core\nOperation Nuclear -\nExhibit L-1\n- Page1\nDirect Margin Monitor System and its related deliverables to be used in the operation of the Project (the “BEACON-\nDMM Software”) is not otherwise provided for the Project, pursuant to which the Owners will acquire the BEACON-\nDMM Software including a license for the use thereof (as such agreement may be amended from time to time, the “BEACON\nSoftware Agreement”);\nv.\nany notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to GPC, Oglethorpe Power Corporation, Municipal Electric Authority of Georgia, MEAG\nPower SPVJ, LLC, MEAG Power SPVM, LLC or MEAG Power SPVP, LLC (each a “DOE Borrower”), or the Operator or their\nparticipation in the Project, in each case that has, or could reasonably be expected to have, a Material Adverse Effect (as such term is\ndefined in the Amended and Restated Loan Guarantee Agreements by and between each DOE Borrower and DOE (the “DOE Loan\nGuarantee Agreements”)) or a material adverse effect on the ability of the Project to be completed or operated, only to the extent such\nitems contain Confidential and Proprietary Information as defined in the Services Agreement (“Confidential and Proprietary\nInformation”);\nvi.\nany notice and a copy of any of the following communications received by a DOE Borrower or the Operator from the\nNRC: (1) notice of a potential violation of severity level III or higher (or its equivalent in subsequent versions of the NRC Enforcement\nPolicy); (2) Red, Yellow or White NRC Inspection Finding (or its equivalent in subsequent versions of the Reactor Oversight Policy);\n(3) notice to stop work or shut down or show cause; (4) Demand for Information under 10 CFR § 50.54(f) or 10 CFR § 2.204; or (5) any\nother immediately effective, unilateral, docket-specific, non-routine communication requiring action by any licensee with respect to the\nProject, only to the extent such items contain Confidential and Proprietary Information;\nvii.\nany notice of any complaint, order, directive, claim, citation, designation or notice by any Governmental Authority (as\nsuch term is defined in the DOE Loan Guarantee Agreements) with respect to the Project received by a DOE Borrower or the Operator\nrelating to any actual or potential material non-compliance with its then-existing obligations under Environmental Laws (as such term is\ndefined in the DOE Loan Guarantee Agreements) and any written description of any steps that such DOE Borrower or the Operator is\ntaking and proposes to take with respect to the matters described in such notice, only to the extent such items contain Confidential and\nProprietary Information;\nviii.\nnotice and a copy of any stop work order issued by a DOE Borrower or the Operator with respect to any work on the\nProject, only to the extent such items contain Confidential and Proprietary Information;\nix.\nany notice of any termination, amendment or material waiver or breach of, or material notices and material\ncorrespondence with respect to, the Services Agreement, the Facility Licenses, the Fuel Fabrication Agreement, any other Fuel Supply\nAgreement, the BEACON Software Agreement (if any), or the License Agreement and any copy of any of the foregoing or any\nagreement, instrument or other document giving effect to any\nExhibit L-1\n- Page2\nTM\nTM\nTM\nof the foregoing, only to the extent such items contain Confidential and Proprietary Information;\nx.\nany notice of any event that constitutes an Event of Default, Potential Default, Mandatory Prepayment Event,\nPotential Mandatory Prepayment Event, Alternate Amortization Event or Potential Alternate Amortization Event (as such terms are\ndefined in the DOE Loan Guarantee Agreements) and any written description of any steps any DOE Borrower has taken or proposes to\ntake to remedy matters described in any such notice, only to the extent such items contain Confidential and Proprietary Information;\nxi.\nany notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to any DOE Borrower or the Operator or their participation in the Project, in each case that\nhas resulted in, or any DOE Borrower believes will result in, Public Inquiries (as such term is defined in the DOE Loan Guarantee\nAgreements), only to the extent such items contain Confidential and Proprietary Information;\nxii.\nany lien waivers and releases, with respect to all work reflected in any invoice of the Service Provider and, in the case\nof the invoice for the final payment from the DOE Borrowers under the Services Agreement, the Service Provider’s affidavit, only to the\nextent such items contain Confidential and Proprietary Information; and\nxiii.\nany other notice, document or communication required to be delivered to DOE by the Operator or any DOE Borrower\npursuant to the Loan Guarantee Agreement, only to the extent such items contain Confidential and Proprietary Information.\nthe parties agree as follows.\nFor the purposes of this Agreement, “Confidential Information” includes the entirety of documents identified in i-xii above, but\nexcludes any terms, conditions or information that have been Publicly Disclosed (as defined herein) or which Recipient has been authorized in\nwriting by GPC to publicly disclose (except pursuant to clause (3) of paragraph A below). For purposes of this Agreement, “Publicly Disclosed”\nmeans information which has become generally available to the public other than as a result of disclosure by Recipient in violation of the terms\nof this Agreement.\nA.\nIn connection with Recipient’s participation in providing the advisory and support services to the DOE, Office of the General\nCounsel, Loan Programs Office, under the Matching Order:\n(1)\nRecipient acknowledges that (a) pursuant to the terms of the Services Agreement, the Fuel Fabrication Agreement and the\nLicense Agreement, respectively, GPC may not disclose the Confidential Information until and unless the persons to whom\nsuch Confidential Information is disclosed agrees to keep such Confidential Information confidential and (b) Recipient and\npersons to whom\nExhibit L-1\n- Page3\nsuch Confidential Information is disclosed are not obligated to keep confidential any terms, conditions or information that have\nbeen Publicly Disclosed.\n(2)\nRecipient hereby acknowledges, agrees and understands that the Confidential Information is confidential and proprietary\nbusiness, technical and/or financial information of Westinghouse, WECTEC and/or GPC, and the disclosure of Confidential\nInformation could cause substantial harm to the competitive and commercial interests of Westinghouse, WECTEC and/or GPC.\n(3)\nRecipient hereby agrees and confirms that Recipient will protect the confidentiality of such Confidential Information, including\nany information or analysis derived from it, and not disclose it to any third party, except to the individuals and entities under\nthe circumstances described below in this paragraph. Specifically, Recipient will not disclose nor release any Confidential\nInformation, to anyone either during or after the period of performance of the Matching Order other than:\n(a)\nIndividuals within Recipient’s organization who are directly concerned with the performance of the Matching Order\nand who have executed an agreement in the same form as this Agreement or who are secretarial or word processing\npersonnel who Recipient has provided with the Confidential Information solely for the purpose of Recipient’s\nperformance of the Matching Order;\n(b)\nOther individuals who are employees of the United States’ government in connection with their work in relation to the\nDOE Borrowers’ DOE Loan Guarantees for the Project; and\n(c)\nAs required by law, including without limitation pursuant to any direction or an order from a court or federal office\n(e.g ., the Government Accountability Office) of competent jurisdiction, provided that Recipient shall provide written\nnotice to GPC, by email, fax or overnight courier at the addresses below or such other addresses as GPC may notify to\nRecipient in writing from time to time, in advance of any such disclosure so as to allow GPC the opportunity to seek\nto limit the extent of disclosure of the Confidential Information and/or to seek a protective order or other appropriate\nremedy (and/or waive compliance with the provisions of this Agreement); and if such limitation or protective order or\nother appropriate remedy is not obtained before Recipient is legally required to produce such Confidential Information\n(or compliance with the provisions of this Agreement is waived), Recipient after consultation with GPC shall disclose\nonly the minimum amount of Confidential Information that Recipient in good faith and in its sole discretion believes\nis legally required.\nGeorgia Power Company\nExhibit L-1\n- Page4\n241 Ralph McGill Blvd.\nBIN 10240\nAtlanta, GA 30308\nAttention: Office of the General Counsel\nFax: 404-506-2725\nEmail: mmlackey@southernco.com\nWith copies to:\nBalch & Bingham LLP\n1710 Sixth Avenue North\nBirmingham, AL 35203-2015\nAttention: Stan Blanton, Partner\nFax: (205) 488-5879\nEmail: SBLANTON@balch.com\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Office of the Chief Legal Officer\nFacsimile: 724-940-8508\nEmail: sweenemt@westinghouse.com\nWECTEC Global Project Services, Inc.\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Office of the Chief Legal Officer\nFacsimile: 724-940-8508\nEmail: sweenemt@westinghouse.com\nGPC’s agent, the Operator, will provide access to the Confidential Information on a secure confidential, password-protected\nelectronic data site (i.e ., read-only access) (the “Restricted Data Site”) that will allow Recipient to review the Confidential\nInformation on a need to know and use basis solely for the purpose of monitoring the Project for the DOE Borrowers’ DOE\nLoan Guarantees (and no other guaranteed loans or related projects).\nB.\nGPC acknowledges that Recipient may be required under the terms of the Matching Order to prepare written summaries of the\nConfidential Information (the “Summaries”) for review by DOE and such individuals as set forth in clause (3)(b) of paragraph A above. In\nRecipient’s review of the Confidential Information, Recipient shall be entitled to prepare such written notes and analyses as Recipient shall deem\nappropriate for purposes of preparing the Summaries.\nC.\nIn the event that DOE, pursuant to its rights under the DOE Loan Guarantee Agreements, delivers a written notification to GPC\ndirecting GPC to deliver a copy of a\nExhibit L-1\n- Page5\ndocument constituting Confidential Information to one or more attorneys at [Norton Rose Fulbright US LLP][Hunton Andrews Kurth LLP] (as\noutside counsel for DOE), GPC will, upon reasonable notice, deliver one copy of such Confidential Information (the “NRF {or Hunton} Copy”)\nto Recipient. In the event of such delivery, Recipient agrees to hold the NRF {or Hunton} Copy in the strictest confidence and to maintain the\nsecrecy and/or nonpublic nature of the NRF {or Hunton} Copy. Recipient shall number each additional copy of the NRF {or Hunton} Copy,\nwhich shall be treated in the same manner as the NRF {or Hunton} Copy, and shall allow only those individuals identified in clause (1)(a) of\nparagraph A above to have access to the NRF {or Hunton} Copy or any copy thereof; provided that Recipient shall be permitted to disclose the\nNRF {or Hunton} Copy as required by law, including without limitation pursuant to any direction or an order from a court or federal office (e.g .,\nthe Government Accountability Office) of competent jurisdiction, provided that Recipient shall provide written notice to GPC in advance of any\nsuch disclosure in accordance with, and shall follow the further procedures set out in, clause (3)(c) of paragraph A above. Recipient shall\nprovide notice to GPC of the number of additional copies of the NRF {or Hunton} Copy that have been made.\nD.\nConsistent with subpart (g) of the Nondisclosure Acknowledgement executed at the request of DOE by [Recipient][individuals\nwithin Recipient’s organization who are directly concerned with the performance of the Matching Order] (“Nondisclosure Acknowledgement”),\nRecipient acknowledges that the Confidential Information is Loan Guarantee Information and will be utilized in accordance with the task or\nsubtask assignment only and acknowledges that the disclosure of this Confidential Information is otherwise restricted by Westinghouse,\nWECTEC and/or GPC as submitters.\nE.\nRecipient hereby agrees that the representations and commitments made in subparts (a) and (h) of the Nondisclosure\nAcknowledgement extend to Confidential Information supplied by Westinghouse, WECTEC and/or GPC with respect to the use and review of\nthe Confidential Information.\nF.\nThis Agreement shall be governed in accordance with the laws of the State of New York without giving effect to any choice of\nlaw, provision, or rule (whether of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than\nNew York.\n[The remainder of this page is intentionally blank.]\nExhibit L-1\n- Page6\nACCEPTED AND AGREED\nBy:\nName:\nTitle:\nDate:\nACKNOWLEDGED AND AGREED\nGEORGIA POWER COMPANY\nBy:\nName:\nTitle:\nDate:\nExhibit L-1\n- Page7
+165f135065019f91ba811afed00cbc8e.pdf	effective_date jurisdiction party term	EX-3 3 d93800dex3.htm EX-3\nExhibit 3\nLOGO\nMUTUAL CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT\nThis Agreement is made on August 10, 2015 by and between DAEGIS, INC., having a principal place of business at 600 East Las Colinas\nBlvd., Suite 1500, Irving, Texas 75039 and Open Text Corporation, having a principal place of business at 275 Frank Tompa Drive, Waterloo,\nOntario, Canada (“you” or the “Other Party”).\nYou have requested information regarding Daegis Inc., a Delaware corporation (collectively, with its subsidiaries, the “Company”) with\nrespect to a proposed Transaction as detailed below. Such a Transaction could include a possible purchase of all or a portion of the stock, assets\nor business of the Company, or any related transactions as may be mutually agreed to between you and the Company (each, a “Transaction”). In\nconnection with your consideration of any possible Transaction, the Company is prepared to furnish you with certain “Evaluation Material” (as\ndefined in Appendix A hereto) in accordance with the provisions of this agreement (the “Confidentiality Agreement”).\n1. Use of Evaluation Material.\nYou and each individual or entity you provide access to the Evaluation Material agree: (a) to use the Evaluation Material solely for the\npurpose of determining whether you wish to enter into any possible Transaction and the terms thereof, and (b) subject to the section captioned\n“Legally Required Disclosure” below, to keep the Evaluation Material strictly confidential, and not to disclose or use any of the Evaluation\nMaterial in any manner inconsistent with this Confidentiality Agreement; provided, however, that any of such information may be disclosed to\nyour Affiliates (as defined in Appendix A hereto) and the Representatives (as defined in Appendix A hereto) who need to know such information\nfor the sole purpose of helping you evaluate a possible Transaction. You agree to be responsible for any breach of this Confidentiality Agreement\nby any of your Affiliates and the Representatives.\n2. Non-Disclosure of Discussions.\nSubject to the section captioned “Legally Required Disclosure” below, you agree that you will not, and you will cause your Affiliates and\nthe Representatives not to disclose to any other Person (as defined in Appendix A hereto): (a) that Evaluation Material has been provided to you\nor any Permitted Co-bidder (as defined in Appendix A hereto) or that you or any Permitted Co-bidder have received or inspected any portion of\nthe Evaluation Material, (b) the existence or contents of this Confidentiality Agreement, (c) that discussions or negotiations concerning a possible\nTransaction are taking place or (d) any of the terms, conditions or other facts with respect thereto (including the status thereof), provided,\nhowever, that nothing contained herein shall be deemed to inhibit, impair or restrict you or the Representatives from having discussions or\nnegotiations with other Persons relating to potential financing in connection with the possible Transaction so long as each of such Person agrees\nin writing to be bound by the terms of this Confidentiality Agreement pursuant to a joinder agreement in a form reasonably acceptable to the\nCompany.\nLOGO\n3. Legally Required Disclosure.\nIf you or any of the Representatives are requested or required (in the opinion of your counsel) by order of court, legal proceedings,\nsubpoena, civil investigative demand, a governmental agency, a stock exchange or other similar process to disclose any of the Evaluation\nMaterial or any of the facts, disclosure of which is prohibited under this Confidentiality Agreement, you will provide the Company with prompt\nwritten notice of any such requests or requirements together with copies of the material proposed to be disclosed so that the Company may seek a\nprotective order or other appropriate remedy and/or waive compliance with the provisions of this Confidentiality Agreement. If, in the absence of\na protective order or other remedy or the receipt of a waiver by the Company, you or the Representatives are nonetheless legally compelled to\ndisclose the Evaluation Material or any of the facts, disclosure of which is prohibited under this Confidentiality Agreement, or otherwise be\nliable for contempt or suffer other censure or penalty, you or the Representatives in question may, without liability hereunder, disclose to such\nrequiring Person only that portion of such Evaluation Material or any such facts which you or the Representatives, on the advice of your counsel,\nare legally required to disclose, provided that you or the Representatives shall exercise reasonable efforts to preserve the privileged nature and\nconfidentiality of such Evaluation Material or any of such facts, including, without limitation, by cooperating with the Company to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the\nPerson receiving the material.\n4. Representations and Warranties.\n(a) You hereby represent and warrant that you are not acting as a broker for or representative of any other Person in connection with the\nTransaction, and are considering the Transaction only for your own account. Except with the prior written consent of the Company, you agree\nthat (a) you will not act as a joint bidder or co-bidder with any other Person with respect to the Transaction, other than Permitted Co-bidders, and\n(b) neither you nor any of the Representatives (acting on behalf of you or your Affiliates) will enter into any discussions, negotiations,\nagreements, arrangements or understandings (whether written or oral) with any other Person regarding the Transaction, other than the Company\nand its representatives.\n(b) You hereby represent and warrant that neither you nor any of your Affiliates or the Representatives is party to any agreement,\narrangement or understanding (whether written or oral) that would restrict the ability of any other Person to provide financing (debt, equity or\notherwise) to any other Person for the Transaction or any similar transaction, and you hereby agree that neither you nor any of your Affiliates or\nthe Representatives will directly or indirectly restrict the ability of any other Person to provide any such financing.\n(c) Notwithstanding anything to the contrary contained herein, without the prior written consent of the Company, you agree that neither\nyou, your Affiliates, nor any of your or the Representatives will disclose any Evaluation Material to any actual or potential sources of financing\n(debt, equity or otherwise), other than (a) bona fide third party institutional lenders who are or may be engaged to provide debt financing to you\nor your Affiliates or (b) Permitted Co-bidders.\nLOGO\n5. Return or Destruction of Evaluation Material.\nIf you decide that you do not wish to proceed with a possible Transaction, you will promptly inform the Company of this decision. In that\ncase, or at any time upon the written request of the Company for any reason, you will, and will cause your Affiliates and the Representatives to,\nwithin ten (10) days after the request, destroy or return all Evaluation Material and no copy, extract, or other reproductions thereof (including\nelectronic copies) shall be retained. No such termination will affect your obligations hereunder or those of the Representatives. If requested by\nthe Company, you will, and will cause the Representatives to, provide written certification to the Company that all such material (including\nelectronic copies) has been returned or destroyed in compliance with this Confidentiality Agreement. Notwithstanding the return or destruction\nof the Evaluation Material, you and the Representatives shall continue to be bound by their obligations of confidentiality and other obligations\nhereunder.\n6. No Solicitation.\nFor a period of one (1) year following the date of this Confidentiality Agreement, you will not, directly or indirectly, solicit for employment\nany officer, director, or employee of the Company or any of its subsidiaries or divisions in an executive or management level position or who is\notherwise considered by the Company (in its sole discretion) to be a key employee, in each case, with whom you have had contact or became\nknown to you in connection with your considerations of a Transaction, except that you shall not be deemed to be in violation of this provision as\na result of any such employee who: (i) initiates discussions regarding such employment without any direct or indirect solicitation by you or\n(ii) responds to any public advertisement or search firm communications that are not directed specifically to any of the Persons described herein.\n7. Maintaining Privileges.\nIf any Evaluation Material (including Evaluation Material related to pending or threatened litigation) includes materials or information\nsubject to the attorney-client privilege, work product doctrine or any other applicable privilege, you understand and agree that you and the\nCompany have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of each party to\nthis Confidentiality Agreement that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality\nof such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All\nEvaluation Material provided to you that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under these privileges, this Confidentiality Agreement, and under the joint defense doctrine.\n8. Not a Transaction Agreement.\nYou understand and agree that no contract or agreement providing for a Transaction shall be deemed to exist between you and the\nCompany unless and until you and the Company execute and deliver a final definitive agreement relating to a Transaction (a “Transaction\nAgreement”), and you hereby waive, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a\nTransaction unless and until you and the Company shall have executed and delivered a Transaction\nLOGO\nAgreement. You also agree that, unless and until you and the Company shall have executed and delivered a Transaction Agreement, neither you\nnor the Company will be under any legal obligation of any kind whatsoever with respect to such Transaction by virtue of this Confidentiality\nAgreement except for the matters specifically agreed to herein. You further acknowledge and agree that the Company reserves the right, in its\nsole discretion, to reject any proposals made by you, your Affiliates or any of the Representatives with regard to a Transaction, and to terminate\ndiscussion and negotiations with you at any time and for any reason or no reason. You understand that the Company shall be free to establish and\nchange any process or procedure with respect to any possible Transaction as the Company in its sole discretion shall determine (including,\nwithout limitation, negotiating with any other interested party and entering into a final definitive agreement relating to a Transaction with any\nother party without prior notice to you or any other Person).\n9. No Representations or Warranties; No Obligation to Disclose.\nYou understand and acknowledge that the Company and its Affiliates and representatives have made and make no representation hereunder,\nexpress or implied, as to the accuracy or completeness of the Evaluation Materials, expressly disclaim any and all liability for the information\ncontained in or omitted from the Evaluation Material furnished by or on behalf of the Company and shall have no liability to you, your Affiliates\nor the Representatives or any other Person relating to or resulting from the use of the Evaluation Material or any errors therein or omissions\ntherefrom. The parties agree that the Company will only be liable for any representations or warranties which are made in a Transaction\nAgreement, when, as, and if executed and delivered, and subject to such limitations and restrictions as may be specified therein. Nothing in this\nConfidentiality Agreement shall be construed as obligating the Company to provide, or to continue to provide, any information to any Person. It\nis expected that you will conduct your own independent investigation of the Company and rely upon such investigation in making an investment\ndecision regarding the Company.\n10. Remedies.\nIt is understood and agreed that money damages would not be a sufficient remedy for any breach of this Confidentiality Agreement by you,\nyour Affiliates or the Representatives, and that the Company shall be entitled to equitable relief, including injunction and specific performance,\nas a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach of this\nConfidentiality Agreement and shall be in addition to all other remedies available at law or equity to the Company.\n11. Severability.\nIf any term, provision, covenant or restriction contained in this Confidentiality Agreement is held by any court of competent jurisdiction to\nbe invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Confidentiality Agreement\nshall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be\nunenforceable by reason of its extent, duration, scope or otherwise, then the parties intend and hereby request that the court or other authority\nmaking that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and\nenforce them in their modified form for all purposes of this Confidentiality Agreement.\nLOGO\n12. Term.\nUnless explicitly stated otherwise herein, this Confidentiality Agreement will terminate two (2) years from the date hereof and be governed\nby Texas law.\n13. Modifications and Waiver.\nNo provision of this Confidentiality Agreement can be waived or amended in favor of the parties hereto except by written consent of the\nother party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nparty hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof\npreclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n14. Repositories.\nThe terms of this Confidentiality Agreement shall control over any additional purported confidentiality requirements imposed by any\noffering memorandum, web-based database or similar repository of Evaluation Material to which the you or any of the Representatives is granted\naccess in connection with the evaluation, negotiation or consummation of the Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that its confidentiality obligations with respect to Evaluation Material are exclusively\ngoverned by this Agreement and may not be enlarged except by a written agreement that is hereafter executed by each of the parties hereto.\n15. Entire Agreement.\nThis Confidentiality Agreement contains the entire agreement between the parties hereto regarding the subject matter hereof and\nsupersedes all prior agreements, understandings, arrangements and discussions between the parties hereto regarding such subject matter.\nIf you are in agreement with the foregoing, please sign and return one copy of this Confidentiality Agreement, it being understood that all\ncounterpart copies will constitute but one agreement with respect to the subject matter hereof.\nLOGO\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.\n“Company”\n“Other Party”\nDAEGIS, INC.\nOPEN TEXT CORPORATION\nBy: /s/ Timothy P. Bacci\nBy: /s/ Gordon Davies\nName: Timothy P. Bacci\nName: Gordon Davies\nTitle: President & CEO\nTitle: CLO and Corporate Secretary\nLOGO\nAppendix A\nDefinitions.\n(a) The term “Affiliate” shall have the meaning provided such term in the Securities Exchange Act of 1934 Act, as amended (the “1934 Act”)\nand, for avoidance of doubt, includes your subsidiaries and Affiliates.\n(b) The term “Evaluation Material” means any and all information (whether written, oral or electronic), data, documents, agreements, files\nand other materials, whether disclosed orally or stored in written, electronic or other form or media, which is obtained from or disclosed by the\nCompany, or its Representatives or Affiliates before or after the date hereof regarding the Company, including, without limitation, information\nconcerning the Company’s business, financial condition, operations, prospects, assets and liabilities, and all notes, reports, forecasts, analyses,\ncompilations, studies, interpretations or other documents prepared by you or on your behalf, (collectively, “Notes”) which contains or is based\nupon, in whole or in part, the Evaluation Material.\nThis Confidentiality Agreement shall be inoperative as to particular portions of the Evaluation Material if such information (i) is or\nbecomes generally available to the public other than as a result of a direct or indirect disclosure by you, your Affiliates or the Representatives in\nbreach of this Confidentiality Agreement, (ii) was within your possession, as evidenced by written records, prior to its being furnished to you by\nthe Company or its representatives, provided that the source of such information was not bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information, or (iii) is or becomes available to\nyou on a non-confidential basis from a source other than the Company or its Representatives, provided that such source is not bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such\ninformation.\n(c) The term “Permitted Co-bidder” means any Person (and any Affiliates of such Person) who may invest in the Transaction on a side-by-\nside basis with you, if such Person (or its Affiliate) (i) has executed its own confidentiality agreement with the Company or is one of your\nAffiliates and (ii) is listed on Exhibit A.\n(d) The term “Person” means an individual, corporation, partnership (whether general or limited), company, joint venture, unincorporated\norganization, limited liability company or partnership, sole proprietorship, association, bank, trust company or trust, whether or not legal entities,\nthe media, or any governmental entity or agency or political subdivision thereof.\n(e) The term “Representatives” shall include your and your Affiliates’ officers, directors, employees, managing members, general partners,\nadvisors, agents and consultants (including attorneys, financial advisors and accountants) and lenders.\nLOGO	EX-3 3 d93800dex3.htm EX-3\nExhibit 3\n».LOGO\nMUTUAL CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT\nThis Agreement is made on August 10, 2015 by and between DAEGIS, INC., having a principal place of business at 600 East Las Colinas\nBlvd., Suite 1500, Irving, Texas 75039 and Open Text Corporation, having a principal place of business at 275 Frank Tompa Drive, Waterloo,\nOntario, Canada (“you” or the “Other Party”).\nYou have requested information regarding Daegis Inc., a Delaware corporation (collectively, with its subsidiaries, the “Company”) with\nrespect to a proposed Transaction as detailed below. Such a Transaction could include a possible purchase of all or a portion of the stock, assets\nor business of the Company, or any related transactions as may be mutually agreed to between you and the Company (each, a “Transaction”). In\nconnection with your consideration of any possible Transaction, the Company is prepared to furnish you with certain “Evaluation Material” (as\ndefined in Appendix A hereto) in accordance with the provisions of this agreement (the “Confidentiality Agreement”).\n1. Use of Evaluation Material.\nYou and each individual or entity you provide access to the Evaluation Material agree: (a) to use the Evaluation Material solely for the\npurpose of determining whether you wish to enter into any possible Transaction and the terms thereof, and (b) subject to the section captioned\n“Legally Required Disclosure” below, to keep the Evaluation Material strictly confidential, and not to disclose or use any of the Evaluation\nMaterial in any manner inconsistent with this Confidentiality Agreement; provided, however, that any of such information may be disclosed to\nyour Affiliates (as defined in Appendix A hereto) and the Representatives (as defined in Appendix A hereto) who need to know such information\nfor the sole purpose of helping you evaluate a possible Transaction. You agree to be responsible for any breach of this Confidentiality Agreement\nby any of your Affiliates and the Representatives.\n2. Non-Disclosure of Discussions.\nSubject to the section captioned “Legally Required Disclosure” below, you agree that you will not, and you will cause your Affiliates and\nthe Representatives not to disclose to any other Person (as defined in Appendix A hereto): (a) that Evaluation Material has been provided to you\nor any Permitted Co-bidder (as defined in Appendix A hereto) or that you or any Permitted Co-bidder have received or inspected any portion of\nthe Evaluation Material, (b) the existence or contents of this Confidentiality Agreement, (c) that discussions or negotiations concerning a possible\nTransaction are taking place or (d) any of the terms, conditions or other facts with respect thereto (including the status thereof), provided,\nhowever, that nothing contained herein shall be deemed to inhibit, impair or restrict you or the Representatives from having discussions or\nnegotiations with other Persons relating to potential financing in connection with the possible Transaction so long as each of such Person agrees\nin writing to be bound by the terms of this Confidentiality Agreement pursuant to a joinder agreement in a form reasonably acceptable to the\nCompany.\n».LOGO\n3.  Legally Required Disclosure.\nIf you or any of the Representatives are requested or required (in the opinion of your counsel) by order of court, legal proceedings,\nsubpoena, civil investigative demand, a governmental agency, a stock exchange or other similar process to disclose any of the Evaluation\nMaterial or any of the facts, disclosure of which is prohibited under this Confidentiality Agreement, you will provide the Company with prompt\nwritten notice of any such requests or requirements together with copies of the material proposed to be disclosed so that the Company may seek a\nprotective order or other appropriate remedy and/or waive compliance with the provisions of this Confidentiality Agreement. If, in the absence of\na protective order or other remedy or the receipt of a waiver by the Company, you or the Representatives are nonetheless legally compelled to\ndisclose the Evaluation Material or any of the facts, disclosure of which is prohibited under this Confidentiality Agreement, or otherwise be\nliable for contempt or suffer other censure or penalty, you or the Representatives in question may, without liability hereunder, disclose to such\nrequiring Person only that portion of such Evaluation Material or any such facts which you or the Representatives, on the advice of your counsel,\nare legally required to disclose, provided that you or the Representatives shall exercise reasonable efforts to preserve the privileged nature and\nconfidentiality of such Evaluation Material or any of such facts, including, without limitation, by cooperating with the Company to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the\nPerson receiving the material.\n4. Representations and Warranties.\n(a) You hereby represent and warrant that you are not acting as a broker for or representative of any other Person in connection with the\nTransaction, and are considering the Transaction only for your own account. Except with the prior written consent of the Company, you agree\nthat (a) you will not act as a joint bidder or co-bidder with any other Person with respect to the Transaction, other than Permitted Co-bidders, and\n(b) neither you nor any of the Representatives (acting on behalf of you or your Affiliates) will enter into any discussions, negotiations,\nagreements, arrangements or understandings (whether written or oral) with any other Person regarding the Transaction, other than the Company\nand its representatives.\n(b) You hereby represent and warrant that neither you nor any of your Affiliates or the Representatives is party to any agreement,\narrangement or understanding (whether written or oral) that would restrict the ability of any other Person to provide financing (debt, equity or\notherwise) to any other Person for the Transaction or any similar transaction, and you hereby agree that neither you nor any of your Affiliates or\nthe Representatives will directly or indirectly restrict the ability of any other Person to provide any such financing.\n(c) Notwithstanding anything to the contrary contained herein, without the prior written consent of the Company, you agree that neither\nyou, your Affiliates, nor any of your or the Representatives will disclose any Evaluation Material to any actual or potential sources of financing\n(debt, equity or otherwise), other than (a) bona fide third party institutional lenders who are or may be engaged to provide debt financing to you\nor your Affiliates or (b) Permitted Co-bidders.\n».LOGO\n5. Return or Destruction of Evaluation Material.\nIf you decide that you do not wish to proceed with a possible Transaction, you will promptly inform the Company of this decision. In that\ncase, or at any time upon the written request of the Company for any reason, you will, and will cause your Affiliates and the Representatives to,\nwithin ten (10) days after the request, destroy or return all Evaluation Material and no copy, extract, or other reproductions thereof (including\nelectronic copies) shall be retained. No such termination will affect your obligations hereunder or those of the Representatives. If requested by\nthe Company, you will, and will cause the Representatives to, provide written certification to the Company that all such material (including\nelectronic copies) has been returned or destroyed in compliance with this Confidentiality Agreement. Notwithstanding the return or destruction\nof the Evaluation Material, you and the Representatives shall continue to be bound by their obligations of confidentiality and other obligations\nhereunder.\n6. No Solicitation.\nFor a period of one (1) year following the date of this Confidentiality Agreement, you will not, directly or indirectly, solicit for employment\nany officer, director, or employee of the Company or any of its subsidiaries or divisions in an executive or management level position or who is\notherwise considered by the Company (in its sole discretion) to be a key employee, in each case, with whom you have had contact or became\nknown to you in connection with your considerations of a Transaction, except that you shall not be deemed to be in violation of this provision as\na result of any such employee who: (i) initiates discussions regarding such employment without any direct or indirect solicitation by you or\n(ii) responds to any public advertisement or search firm communications that are not directed specifically to any of the Persons described herein.\n7.  Maintaining Privileges.\nIf any Evaluation Material (including Evaluation Material related to pending or threatened litigation) includes materials or information\nsubject to the attorney-client privilege, work product doctrine or any other applicable privilege, you understand and agree that you and the\nCompany have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of each party to\nthis Confidentiality Agreement that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality\nof such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All\nEvaluation Material provided to you that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under these privileges, this Confidentiality Agreement, and under the joint defense doctrine.\n8. Not a Transaction Agreement.\nYou understand and agree that no contract or agreement providing for a Transaction shall be deemed to exist between you and the\nCompany unless and until you and the Company execute and deliver a final definitive agreement relating to a Transaction (a “Transaction\nAgreement”), and you hereby waive, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a\nTransaction unless and until you and the Company shall have executed and delivered a Transaction\n».LOGO\nAgreement. You also agree that, unless and until you and the Company shall have executed and delivered a Transaction Agreement, neither you\nnor the Company will be under any legal obligation of any kind whatsoever with respect to such Transaction by virtue of this Confidentiality\nAgreement except for the matters specifically agreed to herein. You further acknowledge and agree that the Company reserves the right, in its\nsole discretion, to reject any proposals made by you, your Affiliates or any of the Representatives with regard to a Transaction, and to terminate\ndiscussion and negotiations with you at any time and for any reason or no reason. You understand that the Company shall be free to establish and\nchange any process or procedure with respect to any possible Transaction as the Company in its sole discretion shall determine (including,\nwithout limitation, negotiating with any other interested party and entering into a final definitive agreement relating to a Transaction with any\nother party without prior notice to you or any other Person).\n9. No Representations or Warranties; No Obligation to Disclose.\nYou understand and acknowledge that the Company and its Affiliates and representatives have made and make no representation hereunder,\nexpress or implied, as to the accuracy or completeness of the Evaluation Materials, expressly disclaim any and all liability for the information\ncontained in or omitted from the Evaluation Material furnished by or on behalf of the Company and shall have no liability to you, your Affiliates\nor the Representatives or any other Person relating to or resulting from the use of the Evaluation Material or any errors therein or omissions\ntherefrom. The parties agree that the Company will only be liable for any representations or warranties which are made in a Transaction\nAgreement, when, as, and if executed and delivered, and subject to such limitations and restrictions as may be specified therein. Nothing in this\nConfidentiality Agreement shall be construed as obligating the Company to provide, or to continue to provide, any information to any Person. It\nis expected that you will conduct your own independent investigation of the Company and rely upon such investigation in making an investment\ndecision regarding the Company.\n10. Remedies.\nIt is understood and agreed that money damages would not be a sufficient remedy for any breach of this Confidentiality Agreement by you,\nyour Affiliates or the Representatives, and that the Company shall be entitled to equitable relief, including injunction and specific performance,\nas a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach of this\nConfidentiality Agreement and shall be in addition to all other remedies available at law or equity to the Company.\n11. Severability.\nIf any term, provision, covenant or restriction contained in this Confidentiality Agreement is held by any court of competent jurisdiction to\nbe invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Confidentiality Agreement\nshall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be\nunenforceable by reason of its extent, duration, scope or otherwise, then the parties intend and hereby request that the court or other authority\nmaking that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and\nenforce them in their modified form for all purposes of this Confidentiality Agreement.\n».LOGO\n12. Term.\nUnless explicitly stated otherwise herein, this Confidentiality Agreement will terminate two (2) years from the date hereof and be governed\nby Texas law.\n13. Modifications and Waiver.\nNo provision of this Confidentiality Agreement can be waived or amended in favor of the parties hereto except by written consent of the\nother party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nparty hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof\npreclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n14. Repositories.\nThe terms of this Confidentiality Agreement shall control over any additional purported confidentiality requirements imposed by any\noffering memorandum, web-based database or similar repository of Evaluation Material to which the you or any of the Representatives is granted\naccess in connection with the evaluation, negotiation or consummation of the Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that its confidentiality obligations with respect to Evaluation Material are exclusively\ngoverned by this Agreement and may not be enlarged except by a written agreement that is hereafter executed by each of the parties hereto.\n15. Entire Agreement.\nThis Confidentiality Agreement contains the entire agreement between the parties hereto regarding the subject matter hereof and\nsupersedes all prior agreements, understandings, arrangements and discussions between the parties hereto regarding such subject matter.\nIf you are in agreement with the foregoing, please sign and return one copy of this Confidentiality Agreement, it being understood that all\ncounterpart copies will constitute but one agreement with respect to the subject matter hereof.\n».LOGO\nIN WITNESS WHEREOQF, the parties have executed this Agreement as of the date first written above.\n“Company” “Other Party”\nDAEGIS, INC. OPEN TEXT CORPORATION\nBy:  /s/ Timothy P. Bacci By: /s/ Gordon Davies\nName: Timothy P. Bacci Name: Gordon Davies\nTitle: President & CEO Title: CLO and Corporate Secretary\n».LOGO\nAppendix A\nDefinitions.\n(@) The term “Affiliate” shall have the meaning provided such term in the Securities Exchange Act of 1934 Act, as amended (the “1934 Act”)\nand, for avoidance of doubt, includes your subsidiaries and Affiliates.\n(b) The term “Evaluation Material” means any and all information (whether written, oral or electronic), data, documents, agreements, files\nand other materials, whether disclosed orally or stored in written, electronic or other form or media, which is obtained from or disclosed by the\nCompany, or its Representatives or Affiliates before or after the date hereof regarding the Company, including, without limitation, information\nconcerning the Company’s business, financial condition, operations, prospects, assets and liabilities, and all notes, reports, forecasts, analyses,\ncompilations, studies, interpretations or other documents prepared by you or on your behalf, (collectively, “Notes”) which contains or is based\nupon, in whole or in part, the Evaluation Material.\nThis Confidentiality Agreement shall be inoperative as to particular portions of the Evaluation Material if such information (i) is or\nbecomes generally available to the public other than as a result of a direct or indirect disclosure by you, your Affiliates or the Representatives in\nbreach of this Confidentiality Agreement, (ii) was within your possession, as evidenced by written records, prior to its being furnished to you by\nthe Company or its representatives, provided that the source of such information was not bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information, or (iii) is or becomes available to\nyou on a non-confidential basis from a source other than the Company or its Representatives, provided that such source is not bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such\ninformation.\n(c) The term “Permitted Co-bidder” means any Person (and any Affiliates of such Person) who may invest in the Transaction on a side-by-\nside basis with you, if such Person (or its Affiliate) (i) has executed its own confidentiality agreement with the Company or is one of your\nAffiliates and (ii) is listed on Exhibit A.\n(d) The term “Person” means an individual, corporation, partnership (whether general or limited), company, joint venture, unincorporated\norganization, limited liability company or partnership, sole proprietorship, association, bank, trust company or trust, whether or not legal entities,\nthe media, or any governmental entity or agency or political subdivision thereof.\n(e) The term “Representatives” shall include your and your Affiliates’ officers, directors, employees, managing members, general partners,\nadvisors, agents and consultants (including attorneys, financial advisors and accountants) and lenders.\n».LOGO	EX-3 3 d93800dex3.htm EX-3\nExhibit 3\nLOGO\nMUTUAL CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT\nThis Agreement is made on August 10, 2015 by and between DAEGIS, INC., having a principal place of business at 600 East Las Colinas\nBlvd., Suite 1500, Irving, Texas 75039 and Open Text Corporation, having a principal place of business at 275 Frank Tompa Drive, Waterloo,\nOntario, Canada ("you" or the "Other Party").\nYou have requested information regarding Daegis Inc., a Delaware corporation (collectively, with its subsidiaries, the "Company") with\nrespect\nto a proposed Transaction as detailed below. Such a Transaction could include a possible purchase of all or a portion of the stock, assets\nor business of the Company, or any related transactions as may be mutually agreed to between you and the Company (each, a "Transaction").\nIn\nconnection with your consideration of any possible Transaction, the Company is prepared to furnish you with certain "Evaluation Material" (as\ndefined in Appendix A hereto) in accordance with the provisions of this agreement (the "Confidentiality Agreement").\n1.\nUse of Evaluation Material.\nYou and each individual or entity you provide access to the Evaluation Material agree: (a) to use the Evaluation Material solely for the\npurpose of determining whether you wish to enter into any possible Transaction and the terms thereof, and (b) subject to the section captioned\n"Legally Required Disclosure" below, to keep the Evaluation Material strictly confidential, and not to disclose or use any of the Evaluation\nMaterial in any manner inconsistent with this Confidentiality Agreement; provided, however, that any of such information may be disclosed to\nyour Affiliates (as defined in Appendix A hereto) and the Representatives (as defined in Appendix A hereto) who need to know such information\nfor the sole purpose of helping you evaluate a possible Transaction You agree to be responsible for any breach of this Confidentiality Agreement\nby any of your Affiliates and the Representatives.\n2.\nNon-Disclosure of Discussions.\nSubject to the section captioned "Legally Required Disclosure" below, you agree that you will not, and you will cause your Affiliates and\nthe Representatives not to disclose to any other Person (as defined in Appendix A hereto): (a) that Evaluation Material has been provided to you\nor any Permitted Co-bidder (as defined in Appendix A hereto) or that you or any Permitted Co-bidder have received or inspected any portion of\nthe Evaluation Material, (b) the existence or contents of this Confidentiality Agreement, (c) that discussions or negotiations concerning a possible\nTransaction are taking place or (d) any of the terms, conditions or other facts with respect thereto (including the status thereof), provided,\nhowever, that nothing contained herein shall be deemed to inhibit, impair or restrict you or the Representatives from having discussions or\nnegotiations with other Persons relating to potential financing in connection with the possible Transaction so long as each of such Person agrees\nin writing to be bound by the terms of this Confidentiality Agreement pursuant to a joinder agreement in a form reasonably acceptable to the\nCompany.\nLOGO\n3.\nLegally Required Disclosure.\nIf you or any of the Representatives are requested or required (in the opinion of your counsel) by order of court, legal proceedings,\nsubpoena, civil investigative demand, a governmental agency, a stock exchange or other similar process to disclose any of the Evaluation\nMaterial or any of the facts, disclosure of which is prohibited under this Confidentiality Agreement, you will provide the Company with prompt\nwritten notice of any such requests or requirements together with copies of the material proposed to be disclosed so that the Company may seek a\nprotective order or other appropriate remedy and/or waive compliance with the provisions of this Confidentiality Agreement. If, in the absence of\na protective order or other remedy or the receipt of a waiver by the Company, you or the Representatives are nonetheless legally compelled to\ndisclose the Evaluation Material or any of the facts, disclosure of which is prohibited under this Confidentiality Agreement, or otherwise be\nliable for contempt or suffer other censure or penalty, you or the Representatives in question may, without liability hereunder, disclose to such\nrequiring Person only that portion of such Evaluation Material or any such facts which you or the Representatives, on the advice of your counsel,\nare legally required to disclose, provided that you or the Representatives shall exercise reasonable efforts to preserve the privileged nature and\nconfidentiality of such Evaluation Material or any of such facts, including, without limitation, by cooperating with the Company to obtain an\nappropriate protective order or other reliable assurance that confidentia treatment will be accorded such Evaluation Material or such facts by the\nPerson receiving the material.\n4.\nRepresentations and Warranties.\n(a) You hereby represent and warrant that you are not acting as a broker for or representative of any other Person in connection with the\nTransaction, and are considering the Transaction only for your own account. Except with the prior written consent of the Company, you agree\nthat (a) you will not act as a joint bidder or co-bidder with any other Person with respect to the Transaction, other than Permitted Co-bidders, and\n(b) neither you nor any of the Representatives (acting on behalf of you or your Affiliates) will enter into any discussions, negotiations,\nagreements, arrangements or understandings (whether written or oral) with any other Person regarding the Transaction, other than the Company\nand its representatives.\n(b) You hereby represent and warrant that neither you nor any of your Affiliates or the Representatives is party to any agreement,\narrangement or understanding (whether written or oral) that would restrict the ability of any other Person to provide financing (debt, equity or\notherwise) to any other Person for the Transaction or any similar transaction, and you hereby agree that neither you nor any of your Affiliates or\nthe Representatives will directly or indirectly restrict the ability of any other Person to provide any such financing.\n(c) Notwithstanding anything to the contrary contained herein, without the prior written consent of the Company, you agree that neither\nyou, your Affiliates, nor any of your or the Representatives will disclose any Evaluation Material to any actual or potential sources of financing\n(debt, equity or otherwise), other than (a) bona fide third party institutional lenders who are or may be engaged to provide debt financing to you\nor your Affiliates or (b) Permitted Co-bidders.\nLOGO\n5.\nReturn or Destruction of Evaluation Material.\nIf you decide that you do not wish to proceed with a possible Transaction, you will promptly inform the Company of this decision. In that\ncase, or at any time upon the written request of the Company for any reason, you will, and will cause your Affiliates and the Representatives to,\nwithin ten (10) days after the request, destroy or return all Evaluation Material and no copy, extract, or other reproductions thereof (including\nelectronic copies) shall be retained. No such termination will affect your obligations hereunder or those of the Representatives. If requested\nby\nthe Company, you will, and will cause the Representatives to, provide written certification to the Company that all such material (including\nelectronic copies) has been returned or destroyed in compliance with this Confidentiality Agreement. Notwithstanding the return or destruction\nof the Evaluation Material, you and the Representatives shall continue to be bound by their obligations of confidentiality and other obligations\nhereunder.\n6.\nNo Solicitation.\nFor a period of one (1) year following the date of this Confidentiality Agreement, you will not, directly or indirectly, solicit for employment\nany officer, director, or employee of the Company or any of its subsidiaries or divisions in an executive or management level position or who is\notherwise considered by the Company (in its sole discretion) to be a key employee, in each case, with whom you have had contact or became\nknown to you in connection with your considerations of a Transaction, except that you shall not be deemed to be in violation of this provision as\na result of any such employee who: (i) initiates discussions regarding such employment without any direct or indirect solicitation by you\nor\n(ii) responds to any public advertisement or search firm communications that are not directed specifically to any of the Persons described herein.\n7.\nMaintaining Privileges.\nIf any Evaluation Material (including Evaluation Material related to pending or threatened litigation) includes materials or information\nsubject to the attorney-client privilege, work product doctrine or any other applicable privilege, you understand and agree that you and the\nCompany have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of each party to\nthis Confidentiality Agreement that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality\nof such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All\nEvaluation Material provided to you that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under these privileges, this Confidentiality Agreement, and under the joint defense doctrine.\n8.\nNot a Transaction Agreement.\nYou understand and agree that no contract or agreement providing for a Transaction shall be deemed to exist between you and the\nCompany unless and until you and the Company execute and deliver a final definitive agreement relating to a Transaction (a "Transaction\nAgreement"), and you hereby waive, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a\nTransaction unless and until you and the Company shall have executed and delivered a Transaction\nLoGo\nAgreement. You also agree that, unless and until you and the Company shall have executed and delivered a Transaction Agreement, neither you\nnor the Company will be under any legal obligation of any kind whatsoever with respect to such Transaction by virtue of this Confidentiality\nAgreement except for the matters specifically agreed to herein. You further acknowledge and agree that the Company reserves the right, in its\nsole discretion, to reject any proposals made by you, your Affiliates or any of the Representatives with regard to a Transaction, and to terminate\ndiscussion and negotiations with you at any time and for any reason or no reason. You understand that the Company shall be free to establish and\nchange any process or procedure with respect to any possible Transaction as the Company in its sole discretion shall determine (including,\nwithout limitation, negotiating with any other interested party and entering into a final definitive agreement relating to a Transaction with any\nother party without prior notice to you or any other Person).\n9.\nNo Representations or Warranties; No Obligation to Disclose.\nYou understand and acknowledge that the Company and its Affiliates and representatives have made and make no representation hereunder,\nexpress or implied, as to the accuracy or completeness of the Evaluation Materials, expressly disclaim any and all liability for the information\ncontained in or omitted from the Evaluation Material furnished by or on behalf of the Company and shall have no liability to you, your Affiliates\nor the Representatives or any other Person relating to or resulting from the use of the Evaluation Material or any errors therein or omissions\ntherefrom. The parties agree that the Company will only be liable for any representations or warranties which are made in a Transaction\nAgreement, when, as, and if executed and delivered, and subject to such limitations and restrictions as may be specified therein. Nothing in this\nConfidentiality Agreement shall be construed as obligating the Company to provide, or to continue to provide, any information to any Person. It\nis expected that you will conduct your own independent investigation of the Company and rely upon such investigation in making an investment\ndecision regarding the Company.\n10. Remedies.\nIt is understood and agreed that money damages would not be a sufficient remedy for any breach of this Confidentiality Agreement by you,\nyour Affiliates or the Representatives, and that the Company shall be entitled to equitable relief, including injunction and specific performance,\nas a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach of this\nConfidentiality Agreement and shall be in addition to all other remedies available at law or equity to the Company.\n11. Severability.\nIf any term, provision, covenant or restriction contained in this Confidentiality Agreement is held by any court of competent jurisdiction to\nbe invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Confidentiality Agreement\nshall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be\nunenforceable by reason of its extent, duration, scope or otherwise, then the parties intend and hereby request that the court or other\nauthority\nmaking that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and\nenforce them in their modified form for all purposes of this Confidentiality Agreement.\nLoGo\n12. Term.\nUnless explicitly stated otherwise herein, this Confidentiality Agreement will terminate two (2) years from the date hereof and be governed\nby Texas law.\n13. Modifications and Waiver.\nNo provision of this Confidentiality Agreement can be waived or amended in favor of the parties hereto except by written consent of the\nother party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nparty hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof\npreclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n14. Repositories.\nThe terms of this Confidentiality Agreement shall control over any additional purported confidentiality requirements imposed by any\noffering memorandum, web-based database or similar repository of Evaluation Material to which the you or any of the Representatives is granted\naccess\nin connection with the evaluation, negotiation or consummation of the Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, "clicking" on an "I Agree" icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that its confidentiality obligations with respect to Evaluation Material are exclusively\ngoverned by this Agreement and may not be enlarged except by a written agreement that is hereafter executed by each of the parties hereto.\n15. Entire Agreement.\nThis Confidentiality Agreement contains the entire agreement between the parties hereto regarding the subject matter hereof and\nsupersedes all prior agreements, understandings, arrangements and discussions between the parties hereto regarding such subject matter.\nIf you are in agreement with the foregoing, please sign and return one copy of this Confidentiality Agreement, it being understood that all\ncounterpart copies will constitute but one agreement with respect to the subject matter hereof.\nLoGo\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.\n"Company"\n"Other Party"\nDAEGIS, INC.\nOPEN TEXT CORPORATION\nBy:\n/s/ Timothy P. Bacci\nBy:\n/s/ Gordon Davies\nName: Timothy P. Bacci\nName: Gordon Davies\nTitle: President & CEO\nTitle: CLO and Corporate Secretary\nLOGO\nAppendix A\nDefinitions.\n(a) The term "Affiliate" shall have the meaning provided such term in the Securities Exchange Act of 1934 Act, as amended (the "1934 Act")\nand, for avoidance of doubt, includes your subsidiaries and Affiliates.\n(b) The term "Evaluation Material" means any and all information (whether written, oral or electronic), data, documents, agreements, files\nand other materials, whether disclosed orally or stored in written, electronic or other form or media, which is obtained from or disclosed by the\nCompany, or its Representatives or Affiliates before or after the date hereof regarding the Company, including, without limitation, information\nconcerning the Company's business, financial condition, operations, prospects, assets and liabilities, and all notes, reports, forecasts, analyses,\ncompilations, studies, interpretations or other documents prepared by you or on your behalf, (collectively, "Notes") which contains or is based\nupon, in whole or in part, the Evaluation Material.\nThis Confidentiality Agreement shall be inoperative as to particular portions of the Evaluation Material if such information (i) is or\nbecomes generally available to the public other than as a result of a direct or indirect disclosure by you, your Affiliates or the Representatives in\nbreach of this Confidentiality Agreement, (ii) was within your possession, as evidenced by written records, prior to its being furnished to you by\nthe Company or its representatives, provided that the source of such information was not bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information, or (iii) is or becomes available to\nyou on a non-confidential basis from a source other than the Company or its Representatives, provided that such source is not bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such\ninformation.\n(c) The term "Permitted Co-bidder" means any Person (and any Affiliates of such Person) who may invest in the Transaction on a side-by-\nside basis with you, if such Person (or its Affiliate) (i) has executed its own confidentiality agreement with the Company or is one of your\nAffiliates and (ii) is listed on Exhibit A.\n(d) The term "Person" means an individual, corporation, partnership (whether general or limited), company, joint venture, unincorporated\norganization, limited liability company or partnership, sole proprietorship, association, bank, trust company or trust, whether or not legal entities,\nthe media, or any governmental entity or agency or political subdivision thereof.\n(e)\nThe term "Representatives" shall include your and your Affiliates' officers, directors, employees, managing members, general partners,\nadvisors, agents and consultants (including attorneys, financial advisors and accountants) and lenders.\nLOGO	EX-3 3 d93800dex3.htm EX-3\nExhibit 3\nLOGO\nMUTUAL CONFIDENTIALITY/NON-DISCLOSURE AGREEMENT\nThis Agreement is made on August 10, 2015 by and between DAEGIS, INC., having a principal place of business at 600 East Las Colinas\nBlvd., Suite 1500, Irving, Texas 75039 and Open Text Corporation, having a principal place of business at 275 Frank Tompa Drive, Waterloo,\nOntario, Canada (“you” or the “Other Party”).\nYou have requested information regarding Daegis Inc., a Delaware corporation (collectively, with its subsidiaries, the “Company”) with\nrespect to a proposed Transaction as detailed below. Such a Transaction could include a possible purchase of all or a portion of the stock, assets\nor business of the Company, or any related transactions as may be mutually agreed to between you and the Company (each, a “Transaction”). In\nconnection with your consideration of any possible Transaction, the Company is prepared to furnish you with certain “Evaluation Material” (as\ndefined in Appendix A hereto) in accordance with the provisions of this agreement (the “Confidentiality Agreement”).\n1. Use of Evaluation Material.\nYou and each individual or entity you provide access to the Evaluation Material agree: (a) to use the Evaluation Material solely for the\npurpose of determining whether you wish to enter into any possible Transaction and the terms thereof, and (b) subject to the section captioned\n“Legally Required Disclosure” below, to keep the Evaluation Material strictly confidential, and not to disclose or use any of the Evaluation\nMaterial in any manner inconsistent with this Confidentiality Agreement; provided, however, that any of such information may be disclosed to\nyour Affiliates (as defined in Appendix A hereto) and the Representatives (as defined in Appendix A hereto) who need to know such information\nfor the sole purpose of helping you evaluate a possible Transaction. You agree to be responsible for any breach of this Confidentiality Agreement\nby any of your Affiliates and the Representatives.\n2. Non-Disclosure of Discussions.\nSubject to the section captioned “Legally Required Disclosure” below, you agree that you will not, and you will cause your Affiliates and\nthe Representatives not to disclose to any other Person (as defined in Appendix A hereto): (a) that Evaluation Material has been provided to you\nor any Permitted Co-bidder (as defined in Appendix A hereto) or that you or any Permitted Co-bidder have received or inspected any portion of\nthe Evaluation Material, (b) the existence or contents of this Confidentiality Agreement, (c) that discussions or negotiations concerning a possible\nTransaction are taking place or (d) any of the terms, conditions or other facts with respect thereto (including the status thereof), provided,\nhowever, that nothing contained herein shall be deemed to inhibit, impair or restrict you or the Representatives from having discussions or\nnegotiations with other Persons relating to potential financing in connection with the possible Transaction so long as each of such Person agrees\nin writing to be bound by the terms of this Confidentiality Agreement pursuant to a joinder agreement in a form reasonably acceptable to the\nCompany.\nLOGO\n3. Legally Required Disclosure.\nIf you or any of the Representatives are requested or required (in the opinion of your counsel) by order of court, legal proceedings,\nsubpoena, civil investigative demand, a governmental agency, a stock exchange or other similar process to disclose any of the Evaluation\nMaterial or any of the facts, disclosure of which is prohibited under this Confidentiality Agreement, you will provide the Company with prompt\nwritten notice of any such requests or requirements together with copies of the material proposed to be disclosed so that the Company may seek a\nprotective order or other appropriate remedy and/or waive compliance with the provisions of this Confidentiality Agreement. If, in the absence of\na protective order or other remedy or the receipt of a waiver by the Company, you or the Representatives are nonetheless legally compelled to\ndisclose the Evaluation Material or any of the facts, disclosure of which is prohibited under this Confidentiality Agreement, or otherwise be\nliable for contempt or suffer other censure or penalty, you or the Representatives in question may, without liability hereunder, disclose to such\nrequiring Person only that portion of such Evaluation Material or any such facts which you or the Representatives, on the advice of your counsel,\nare legally required to disclose, provided that you or the Representatives shall exercise reasonable efforts to preserve the privileged nature and\nconfidentiality of such Evaluation Material or any of such facts, including, without limitation, by cooperating with the Company to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the\nPerson receiving the material.\n4. Representations and Warranties.\n(a) You hereby represent and warrant that you are not acting as a broker for or representative of any other Person in connection with the\nTransaction, and are considering the Transaction only for your own account. Except with the prior written consent of the Company, you agree\nthat (a) you will not act as a joint bidder or co-bidder with any other Person with respect to the Transaction, other than Permitted Co-bidders, and\n(b) neither you nor any of the Representatives (acting on behalf of you or your Affiliates) will enter into any discussions, negotiations,\nagreements, arrangements or understandings (whether written or oral) with any other Person regarding the Transaction, other than the Company\nand its representatives.\n(b) You hereby represent and warrant that neither you nor any of your Affiliates or the Representatives is party to any agreement,\narrangement or understanding (whether written or oral) that would restrict the ability of any other Person to provide financing (debt, equity or\notherwise) to any other Person for the Transaction or any similar transaction, and you hereby agree that neither you nor any of your Affiliates or\nthe Representatives will directly or indirectly restrict the ability of any other Person to provide any such financing.\n(c) Notwithstanding anything to the contrary contained herein, without the prior written consent of the Company, you agree that neither\nyou, your Affiliates, nor any of your or the Representatives will disclose any Evaluation Material to any actual or potential sources of financing\n(debt, equity or otherwise), other than (a) bona fide third party institutional lenders who are or may be engaged to provide debt financing to you\nor your Affiliates or (b) Permitted Co-bidders.\nLOGO\n5. Return or Destruction of Evaluation Material.\nIf you decide that you do not wish to proceed with a possible Transaction, you will promptly inform the Company of this decision. In that\ncase, or at any time upon the written request of the Company for any reason, you will, and will cause your Affiliates and the Representatives to,\nwithin ten (10) days after the request, destroy or return all Evaluation Material and no copy, extract, or other reproductions thereof (including\nelectronic copies) shall be retained. No such termination will affect your obligations hereunder or those of the Representatives. If requested by\nthe Company, you will, and will cause the Representatives to, provide written certification to the Company that all such material (including\nelectronic copies) has been returned or destroyed in compliance with this Confidentiality Agreement. Notwithstanding the return or destruction\nof the Evaluation Material, you and the Representatives shall continue to be bound by their obligations of confidentiality and other obligations\nhereunder.\n6. No Solicitation.\nFor a period of one (1) year following the date of this Confidentiality Agreement, you will not, directly or indirectly, solicit for employment\nany officer, director, or employee of the Company or any of its subsidiaries or divisions in an executive or management level position or who is\notherwise considered by the Company (in its sole discretion) to be a key employee, in each case, with whom you have had contact or became\nknown to you in connection with your considerations of a Transaction, except that you shall not be deemed to be in violation of this provision as\na result of any such employee who: (i) initiates discussions regarding such employment without any direct or indirect solicitation by you or\n(ii) responds to any public advertisement or search firm communications that are not directed specifically to any of the Persons described herein.\n7. Maintaining Privileges.\nIf any Evaluation Material (including Evaluation Material related to pending or threatened litigation) includes materials or information\nsubject to the attorney-client privilege, work product doctrine or any other applicable privilege, you understand and agree that you and the\nCompany have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of each party to\nthis Confidentiality Agreement that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality\nof such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All\nEvaluation Material provided to you that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under these privileges, this Confidentiality Agreement, and under the joint defense doctrine.\n8. Not a Transaction Agreement.\nYou understand and agree that no contract or agreement providing for a Transaction shall be deemed to exist between you and the\nCompany unless and until you and the Company execute and deliver a final definitive agreement relating to a Transaction (a “Transaction\nAgreement”), and you hereby waive, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a\nTransaction unless and until you and the Company shall have executed and delivered a Transaction\nLOGO\nAgreement. You also agree that, unless and until you and the Company shall have executed and delivered a Transaction Agreement, neither you\nnor the Company will be under any legal obligation of any kind whatsoever with respect to such Transaction by virtue of this Confidentiality\nAgreement except for the matters specifically agreed to herein. You further acknowledge and agree that the Company reserves the right, in its\nsole discretion, to reject any proposals made by you, your Affiliates or any of the Representatives with regard to a Transaction, and to terminate\ndiscussion and negotiations with you at any time and for any reason or no reason. You understand that the Company shall be free to establish and\nchange any process or procedure with respect to any possible Transaction as the Company in its sole discretion shall determine (including,\nwithout limitation, negotiating with any other interested party and entering into a final definitive agreement relating to a Transaction with any\nother party without prior notice to you or any other Person).\n9. No Representations or Warranties; No Obligation to Disclose.\nYou understand and acknowledge that the Company and its Affiliates and representatives have made and make no representation hereunder,\nexpress or implied, as to the accuracy or completeness of the Evaluation Materials, expressly disclaim any and all liability for the information\ncontained in or omitted from the Evaluation Material furnished by or on behalf of the Company and shall have no liability to you, your Affiliates\nor the Representatives or any other Person relating to or resulting from the use of the Evaluation Material or any errors therein or omissions\ntherefrom. The parties agree that the Company will only be liable for any representations or warranties which are made in a Transaction\nAgreement, when, as, and if executed and delivered, and subject to such limitations and restrictions as may be specified therein. Nothing in this\nConfidentiality Agreement shall be construed as obligating the Company to provide, or to continue to provide, any information to any Person. It\nis expected that you will conduct your own independent investigation of the Company and rely upon such investigation in making an investment\ndecision regarding the Company.\n10. Remedies.\nIt is understood and agreed that money damages would not be a sufficient remedy for any breach of this Confidentiality Agreement by you,\nyour Affiliates or the Representatives, and that the Company shall be entitled to equitable relief, including injunction and specific performance,\nas a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for a breach of this\nConfidentiality Agreement and shall be in addition to all other remedies available at law or equity to the Company.\n11. Severability.\nIf any term, provision, covenant or restriction contained in this Confidentiality Agreement is held by any court of competent jurisdiction to\nbe invalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Confidentiality Agreement\nshall remain in full force and effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be\nunenforceable by reason of its extent, duration, scope or otherwise, then the parties intend and hereby request that the court or other authority\nmaking that determination shall only modify such extent, duration, scope or other provision to the extent necessary to make it enforceable and\nenforce them in their modified form for all purposes of this Confidentiality Agreement.\nLOGO\n12. Term.\nUnless explicitly stated otherwise herein, this Confidentiality Agreement will terminate two (2) years from the date hereof and be governed\nby Texas law.\n13. Modifications and Waiver.\nNo provision of this Confidentiality Agreement can be waived or amended in favor of the parties hereto except by written consent of the\nother party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nparty hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof\npreclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n14. Repositories.\nThe terms of this Confidentiality Agreement shall control over any additional purported confidentiality requirements imposed by any\noffering memorandum, web-based database or similar repository of Evaluation Material to which the you or any of the Representatives is granted\naccess in connection with the evaluation, negotiation or consummation of the Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that its confidentiality obligations with respect to Evaluation Material are exclusively\ngoverned by this Agreement and may not be enlarged except by a written agreement that is hereafter executed by each of the parties hereto.\n15. Entire Agreement.\nThis Confidentiality Agreement contains the entire agreement between the parties hereto regarding the subject matter hereof and\nsupersedes all prior agreements, understandings, arrangements and discussions between the parties hereto regarding such subject matter.\nIf you are in agreement with the foregoing, please sign and return one copy of this Confidentiality Agreement, it being understood that all\ncounterpart copies will constitute but one agreement with respect to the subject matter hereof.\nLOGO\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.\n“Company”\n“Other Party”\nDAEGIS, INC.\nOPEN TEXT CORPORATION\nBy: /s/ Timothy P. Bacci\nBy: /s/ Gordon Davies\nName: Timothy P. Bacci\nName: Gordon Davies\nTitle: President & CEO\nTitle: CLO and Corporate Secretary\nLOGO\nAppendix A\nDefinitions.\n(a) The term “Affiliate” shall have the meaning provided such term in the Securities Exchange Act of 1934 Act, as amended (the “1934 Act”)\nand, for avoidance of doubt, includes your subsidiaries and Affiliates.\n(b) The term “Evaluation Material” means any and all information (whether written, oral or electronic), data, documents, agreements, files\nand other materials, whether disclosed orally or stored in written, electronic or other form or media, which is obtained from or disclosed by the\nCompany, or its Representatives or Affiliates before or after the date hereof regarding the Company, including, without limitation, information\nconcerning the Company’s business, financial condition, operations, prospects, assets and liabilities, and all notes, reports, forecasts, analyses,\ncompilations, studies, interpretations or other documents prepared by you or on your behalf, (collectively, “Notes”) which contains or is based\nupon, in whole or in part, the Evaluation Material.\nThis Confidentiality Agreement shall be inoperative as to particular portions of the Evaluation Material if such information (i) is or\nbecomes generally available to the public other than as a result of a direct or indirect disclosure by you, your Affiliates or the Representatives in\nbreach of this Confidentiality Agreement, (ii) was within your possession, as evidenced by written records, prior to its being furnished to you by\nthe Company or its representatives, provided that the source of such information was not bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information, or (iii) is or becomes available to\nyou on a non-confidential basis from a source other than the Company or its Representatives, provided that such source is not bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such\ninformation.\n(c) The term “Permitted Co-bidder” means any Person (and any Affiliates of such Person) who may invest in the Transaction on a side-by-\nside basis with you, if such Person (or its Affiliate) (i) has executed its own confidentiality agreement with the Company or is one of your\nAffiliates and (ii) is listed on Exhibit A.\n(d) The term “Person” means an individual, corporation, partnership (whether general or limited), company, joint venture, unincorporated\norganization, limited liability company or partnership, sole proprietorship, association, bank, trust company or trust, whether or not legal entities,\nthe media, or any governmental entity or agency or political subdivision thereof.\n(e) The term “Representatives” shall include your and your Affiliates’ officers, directors, employees, managing members, general partners,\nadvisors, agents and consultants (including attorneys, financial advisors and accountants) and lenders.\nLOGO
+20be51bbbc6072ecd2f090fcf2d67a6c.pdf	effective_date jurisdiction party term	EX-10.03 4 dex1003.htm CONSULTING AGREEMENT\nExhibit 10.03\nCONSULTING AGREEMENT\nThis consulting agreement (the “Agreement”), is entered into as of March 17, 2008 (the “Effective Date”) by and among Intersil Corporation, on\nbehalf of itself and its subsidiaries (hereinafter “the Company”), with a place of business at 1001 Murphy Ranch Road, Milpitas, California 95035,\nand Richard M. Beyer, whose address is 13503 Fremont Road, Los Altos, CA 94022 (hereinafter “Mr. Beyer”).\nWHEREAS, Mr. Beyer resigned his positions as Director and Chief Executive Officer of the Company, effective February 13, 2008;\nWHEREAS, since his resignation as Director and Chief Executive Officer of the Company as of February 13, 2008, Mr. Beyer has continued his\nemployment with the Company in the capacity of a non-officer special advisor to the Chief Executive Officer and Board of Directors (the “Board”);\nWHEREAS, Mr. Beyer has informed the Board of his intent to terminate his employment with the Company, effective March 16, 2008; and\nWHEREAS, the Board has determined that it is in the best interests of the Company that Mr. Beyer continue to be available to provide advisory\nservices to the new Chief Executive Officer and Board after his termination of his employment through a transition period ending on April 16, 2008.\nAGREEMENT\nNOW, THEREFORE, in consideration of the premises and mutual promises herein contained, the parties do hereby agree as follows:\n1. CONSULTING SERVICES. During the term of this Agreement, Mr. Beyer will make himself available for and provide (upon reasonable request\nfrom the Chief Executive Officer or Board which will not significantly interfere with obligations Mr. Beyer may have to his new employer) up to ten\n(10) hours per week of advice to the Company’s Chief Executive Officer and/or the Board concerning business matters, financial matters, customer\nrelationship issues and such other Company matters with which he has familiarity (the “Consulting Services”). Mr. Beyer will comply with and be\nbound by the Company’s operating policies and procedures (as applicable to consulting arrangements) that are in effect during the term of this\nAgreement. This Agreement does not supersede any prior employment agreement Mr. Beyer has or had with the Company.\n2. TERM. The term of this Agreement will commence on the Effective Date and will end on April 16, 2008 (the “Consulting Term”).\n3. CONSIDERATION. Mr. Beyer will be compensated as follows:\n(a) Stock Options. During the Consulting Term, those employee stock options previously issued to Mr. Beyer by the Company during Mr. Beyer’s\nemployment with the Company that are scheduled to become vested on or before April 16, 2008 will continue to vest through the Consulting Term\nand will be exercisable in accordance with the terms of such grants, and subject to the terms of the Company’s 1999 Equity Compensation Plan (the\n“1999 Equity Plan”). Those employee stock options previously granted to Mr. Beyer that would become vested after April 16, 2008 will become\nunexercisable and expire on March 16, 2008.\n44\n(b) Deferred Stock Units. During the Consulting Term, those deferred stock units (“DSUs) previously issued to Mr. Beyer during Mr. Beyer’s\nemployment with the Company that are scheduled to become vested on or before April 16, 2008 will continue to vest through the Consulting Term.\nThose DSUs previously granted to Mr. Beyer that would become vested after April 16, 2008 will terminate and expire on March 16, 2008.\nDistribution of any vested DSUs will be in accordance with the terms of the respective DSU award and the terms of the 1999 Equity Plan.\n4. INDEPENDENT CONTRACTOR. During the Consulting Term, Mr. Beyer will be an independent contractor, and not an employee or agent of the\nCompany for any purpose, and Mr. Beyer will have no authority to represent or bind the Company in any capacity with any party.\n5. ASSIGNMENT . This Agreement is a personal services agreement and may not be transferred or assigned by Mr. Beyer, and any such assignment\nwill be void.\n6. CONFIDENTIALITY AND NON-DISCLOSURE. It is recognized that Mr. Beyer has acquired and may acquire confidential information,\nincluding trade secrets, computer software, and proprietary data, regarding the above matters and other affairs, products, technologies and business\nof the Company during the course of this Agreement (“Confidential Information”). Mr. Beyer hereby agrees and covenants to hold in trust and\nconfidence all such Confidential Information during and following Mr. Beyer’s retention in accordance with the terms and conditions of the\nCompany’s Non-Disclosure Agreement, Attachment A (attached hereto and incorporated herein by reference). At no time will Mr. Beyer divulge\nConfidential Information of the Company for any purposes other than for the benefit of the Company. Any information created by Mr. Beyer while\nengaged in any work for the Company or while using the Company materials will be deemed to be the Company Confidential Information, subject to\nthe exceptions in Attachment A, and will be so marked and treated upon creation by Mr. Beyer.\n7. OWNERSHIP OF WORK PRODUCT. Mr. Beyer agrees that with respect to any work performed for the Company hereunder which results in\nMr. Beyer’s preparation of written or verbal reports, studies, analyses, research data, proposals, strategies or similar work product, the Company will\nretain exclusive right and title in and to said work product and that Mr. Beyer may not otherwise use or disclose same to third parties without the\nCompany’s prior written approval.\n8. COMPLIANCE WITH COMPANY STANDARDS OF CONDUCT AND COMPLIANCE WITH LAW. The Company conducts its business in\nstrict compliance with applicable laws, rules, and regulations and with honesty, integrity, and a strong commitment to the highest standards of\nbusiness ethics. Mr. Beyer agrees at all times to adhere to the Company policies in this regard, as well as any other customary standards of business\nconduct including conduct prescribed by law or regulation. Mr. Beyer further agrees that he will at all times comply with all federal, state, and local\nlaws, regulations, and orders in the performance of this Agreement.\n9. NOTICES . All notices and other communications hereunder will be in writing and will be deemed given if delivered personally, telecopied (which\nis confirmed) or dispatched by a nationally recognized overnight courier service to the parties at the following addresses (or at such other address for\na party as will be specified by like notice):\na.\nif to the Company:\nIntersil Corporation\n1001 Murphy Ranch Road\nMilpitas, CA 95035\nAttn: Office of the General Counsel\nFax: 408/321-9594\nEmail: ttokos@Intersil.com\nb. if to Mr. Beyer:\nRichard Beyer\nHome Address\n45\n10. GOVERNING LAW. This Agreement will be governed by, subject to, and construed in accordance with the laws of the State of California.\nVenue will lie in the State of California for all causes of action under this Agreement, and both the Company and Mr. Beyer agree to be subject to the\nstate and Federal courts of California.\n11. CONSTRUCTION. This Agreement has been negotiated by the parties and will be interpreted fairly in accordance with its terms and without any\nconstruction in favor of or against either party.\n12. CAPTIONS AND HEADINGS. The captions and section and headings used in this Agreement are inserted for convenience only and will not\naffect the meaning or interpretation of this Agreement.\n13. WAIVER. The waiver by either party of a breach of or a default under any provision of this Agreement will not be effective unless in writing and\nwill not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor will any delay\nor omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any\nright or remedy.\n14. SEVERABILITY. If the application of any provision of this Agreement to any particular facts or circumstances will for any reason be held to be\ninvalid, illegal or unenforceable by a court, arbitration panel or other tribunal of competent jurisdiction, then (a) the validity, legality and\nenforceability of such provision as applied to any other particular facts or circumstances, and the other provisions of this Agreement, will not in any\nway be affected or impaired thereby and (b) such provision will be enforced to the maximum extent possible so as to effect the intent of the parties.\nIf, moreover, any provision contained in this Agreement will for any reason be held to be excessively broad as to duration, geographical scope,\nactivity or subject, it will be construed by limiting and reducing it, so as to be enforceable to the extent compatible with applicable law.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.\nINTERSIL CORPORATION\nRichard M. Beyer\nBy: /S/ Thomas C. Tokos\n/s/ Richard Beyer\nVice President, General Counsel & Secretary\nName: Richard Beyer\n46\nAttachment A\nNon-Disclosure Agreement (NDA)\nThis non-disclosure agreement (“NDA”) is made by and between the Parties to the Agreement with an effective date the same as that of the\nAgreement. Either Party may receive or disclose Confidential Information under this NDA. The Party disclosing Confidential Information shall be\nconsidered the “Discloser.” The Party receiving Confidential Information shall be considered the “Recipient.” In consideration of the mutual\npromises and covenants contained in this NDA, and to assure the protection and preservation of the proprietary and/or confidential nature of the\ninformation to be disclosed or made available to each other, the Parties hereto agree as follows:\n1. Definition. “Confidential Information” means any non-public information, whether disclosed orally or in tangible, machine readable, or electronic\nform, by either of the Parties to the other, which the Discloser identifies at the time of disclosure as confidential, proprietary, secret, private, or the\nlike, or which under the circumstances surrounding disclosure gives indication that the information should be treated as confidential. Confidential\nInformation includes, without limitation, any specification, layout, design, drawing, formula, technique, algorithm, know-how, sample product, test\ndata, information related to engineering, manufacturing, sales, marketing, management or quality control, financial information or other information\nrelated to the business operations of the Discloser.\n2. Use of Confidential Information. Confidential Information disclosed hereunder may only be used for in support of and to provide the advisory\nservice described in the Agreement (hereinafter “Authorized Purpose”), and shall be used by Recipient solely in a manner that actually or potentially\nbenefits the Discloser, or shall not be used in a manner detrimental to Discloser. Each Discloser represents that it has the right to disclose\nConfidential Information to the Recipient for the Authorized Purpose(s) stated above.\n3. Protection of Confidential Information. Confidential Information may be exchanged between the Parties under this NDA to the extent necessary to\nfulfill the Authorized Purpose, and shall not be used for any other purpose. Recipient acknowledges that the Discloser’s Confidential Information is\na special, valuable and a unique asset, and agrees that it shall: (a) not disclose the Confidential Information to any third party without written consent\nof Discloser, (b) restrict dissemination of Confidential Information to only its employees, contractors, or agents who are directly participating in the\nAuthorized Purpose, who have a need to know the Confidential Information, and who are bound by a duty of confidentiality under terms no less\nrestrictive than contained herein concerning the use of Confidential Information, and (c) use the same degree of care as for its own information of\nlike importance, but at least reasonable care, in preventing disclosure of Confidential Information. Recipient further agrees not to reverse engineer,\ndecompile, disassemble any prototypes, software, hardware or other tangible objects or products provided hereunder which embody the Confidential\nInformation of the Discloser.\n4. Exceptions. This NDA imposes no obligation upon Recipient with respect to Confidential Information which is:\n(a) public or becomes publicly available through no act or failure on part of Recipient, or\n(b) approved in writing by the Discloser for public release or disclosure by the Recipient; or\n(c) disclosed to a third party by Discloser without a duty of confidentiality or is lawfully obtained by Recipient from a third party without a duty of\nconfidentiality or restriction on disclosure, or\n(d) independently known by or independently developed by the Recipient without the use of Confidential Information disclosed by the Discloser; or\n(e) required to be disclosed pursuant to the order of a court of competent jurisdiction; or otherwise required to be disclosed by law through no act of\nthe Recipient, provided, however, that the Recipient has notified the Discloser upon learning of the possibility that disclosure could be required\npursuant to any such law or legal order and has given the Discloser a reasonable opportunity to contest or limit the scope of such required disclosure\nand has cooperated with the Discloser toward this end.\n5. Term and Termination. This NDA shall be co-terminus with the Term of the Agreement. Termination shall not, however, affect the rights and\nobligations included herein with respect to Confidential Information disclosed hereunder prior to termination. Upon termination of this NDA, each\nParty will, and\n47\nwithin a reasonable period of time thereafter, return all Confidential Information received from the Recipient and copies made thereof by the\nRecipient, or, if acceptable to the Discloser, certify by written memorandum that all such Confidential Information has been destroyed. Each Party\nmay retain one archival copy in its Legal Department to be used only in resolving a dispute concerning this NDA. The obligations of the Recipient\nwith respect to non-disclosure and use shall survive the expiration of this NDA indefinitely.\n6. Rights and Remedies. Each Party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore,\nthe injured Party is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies.\n7. No Formal Business Relationship. This NDA is for the purpose of protecting Confidential Information only and shall not be construed to create\nany agency, partnership, joint venture or other such relationship between the Parties except as defined in the Agreement, nor shall the exchange of\nConfidential Information represent any commitment by the Parties to enter into any business relationship. If the Parties desire to pursue business\nopportunities, the Parties shall execute a separate written NDA to govern such business relationship.\n8. No Obligation to Disclose or Warranty. Neither Party has an obligation to supply Confidential Information hereunder. Confidential Information\ndisclosed hereunder is provided on an “AS IS” basis, without any warranty, whether express, implied or otherwise, regarding its accuracy, usefulness\nor performance.\n9. No Transfer or License of Intellectual Property. Recipient agrees that all Confidential Information received is and will remain the sole property of\nDiscloser. Neither the execution of this NDA, nor the furnishing of any Confidential Information hereunder shall be construed as a grant by\nimplication, estoppel or otherwise, of a license by either Party to the other to make, have made, use or sell any product using Confidential\nInformation or as a license under any patent, patent application, utility model, copyright, maskwork right, or any other intellectual property right.\n10. Assignment. This NDA and the rights and obligations hereunder may not be transferred or assigned by one party without the prior written\napproval of the other party hereto. Notwithstanding the foregoing, either party hereto may assign this NDA and corresponding rights hereunder to a\nsuccessor-in-interest (a) to all or part of the business unit to which this NDA relates, and (b) that agrees to abide by all obligations herein.\n11. Export Control Laws and Regulations. Recipient agrees it will not, in any form, export, re-export, resell, ship or divert or cause to be exported,\nre-exported, re-sold, shipped or diverted, directly or indirectly, any product or technical data furnished hereunder, or the direct product of such\ntechnical data, to any country for which the United States Government requires an export license, or other approval, without first obtaining such\nlicense or approval.\n12. Applicable Law. The law of the state of Delaware, U.S .A. except for its choice of laws rules shall be used to construe and govern this NDA. The\nprevailing party in any action to enforce this NDA shall be entitled to recover reasonable attorneys fees and costs.\n13. Binding Effect. This NDA shall be binding upon each Party, its affiliates, respective employees, agents, representatives, successors, and assigns.\nNo change, modification, alteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives of\nboth Parties.\n14. Entire NDA. This NDA contains the entire understanding between the Parties relative to the protection of Confidential Information and\nsupersedes all prior and collateral communications, reports, and understandings between the Parties in respect thereto.\n48	EX-10.03 4 dex1003.htm CONSULTING AGREEMENT\nExhibit 10.03\nCONSULTING AGREEMENT\nThis consulting agreement (the “Agreement”), is entered into as of March 17, 2008 (the “Effective Date”) by and among Intersil Corporation, on\nbehalf of itself and its subsidiaries (hereinafter “the Company”), with a place of business at 1001 Murphy Ranch Road, Milpitas, California 95035,\nand Richard M. Beyer, whose address is 13503 Fremont Road, Los Altos, CA 94022 (hereinafter “Mr. Beyer”).\nWHEREAS, Mr. Beyer resigned his positions as Director and Chief Executive Officer of the Company, effective February 13, 2008;\nWHEREAS, since his resignation as Director and Chief Executive Officer of the Company as of February 13, 2008, Mr. Beyer has continued his\nemployment with the Company in the capacity of a non-officer special advisor to the Chief Executive Officer and Board of Directors (the “Board”);\nWHEREAS, Mr. Beyer has informed the Board of his intent to terminate his employment with the Company, effective March 16, 2008; and\nWHEREAS, the Board has determined that it is in the best interests of the Company that Mr. Beyer continue to be available to provide advisory\nservices to the new Chief Executive Officer and Board after his termination of his employment through a transition period ending on April 16, 2008.\nAGREEMENT\nNOW, THEREFORE, in consideration of the premises and mutual promises herein contained, the parties do hereby agree as follows:\n1. CONSULTING SERVICES. During the term of this Agreement, Mr. Beyer will make himself available for and provide (upon reasonable request\nfrom the Chief Executive Officer or Board which will not significantly interfere with obligations Mr. Beyer may have to his new employer) up to ten\n(10) hours per week of advice to the Company’s Chief Executive Officer and/or the Board concerning business matters, financial matters, customer\nrelationship issues and such other Company matters with which he has familiarity (the “Consulting Services”). Mr. Beyer will comply with and be\nbound by the Company’s operating policies and procedures (as applicable to consulting arrangements) that are in effect during the term of this\nAgreement. This Agreement does not supersede any prior employment agreement Mr. Beyer has or had with the Company.\n2. TERM. The term of this Agreement will commence on the Effective Date and will end on April 16, 2008 (the “Consulting Term”).\n3. CONSIDERATION. Mr. Beyer will be compensated as follows:\n(a) Stock Options. During the Consulting Term, those employee stock options previously issued to Mr. Beyer by the Company during Mr. Beyer’s\nemployment with the Company that are scheduled to become vested on or before April 16, 2008 will continue to vest through the Consulting Term\nand will be exercisable in accordance with the terms of such grants, and subject to the terms of the Company’s 1999 Equity Compensation Plan (the\n“1999 Equity Plan”). Those employee stock options previously granted to Mr. Beyer that would become vested after April 16, 2008 will become\nunexercisable and expire on March 16, 2008.\n \n44\n(b) Deferred Stock Units. During the Consulting Term, those deferred stock units (“DSUs) previously issued to Mr. Beyer during Mr. Beyer’s\nemployment with the Company that are scheduled to become vested on or before April 16, 2008 will continue to vest through the Consulting Term.\nThose DSUs previously granted to Mr. Beyer that would become vested after April 16, 2008 will terminate and expire on March 16, 2008.\nDistribution of any vested DSUs will be in accordance with the terms of the respective DSU award and the terms of the 1999 Equity Plan.\n4. INDEPENDENT CONTRACTOR. During the Consulting Term, Mr. Beyer will be an independent contractor, and not an employee or agent of the\nCompany for any purpose, and Mr. Beyer will have no authority to represent or bind the Company in any capacity with any party.\n5. ASSIGNMENT. This Agreement is a personal services agreement and may not be transferred or assigned by Mr. Beyer, and any such assignment\nwill be void.\n6. CONFIDENTIALITY AND NON-DISCLOSURE. It is recognized that Mr. Beyer has acquired and may acquire confidential information,\nincluding trade secrets, computer software, and proprietary data, regarding the above matters and other affairs, products, technologies and business\nof the Company during the course of this Agreement (“Confidential Information”). Mr. Beyer hereby agrees and covenants to hold in trust and\nconfidence all such Confidential Information during and following Mr. Beyer’s retention in accordance with the terms and conditions of the\nCompany’s Non-Disclosure Agreement, Attachment A (attached hereto and incorporated herein by reference). At no time will Mr. Beyer divulge\nConfidential Information of the Company for any purposes other than for the benefit of the Company. Any information created by Mr. Beyer while\nengaged in any work for the Company or while using the Company materials will be deemed to be the Company Confidential Information, subject to\nthe exceptions in Attachment A, and will be so marked and treated upon creation by Mr. Beyer.\n7. OWNERSHIP OF WORK PRODUCT. Mr. Beyer agrees that with respect to any work performed for the Company hereunder which results in\nMr. Beyer’s preparation of written or verbal reports, studies, analyses, research data, proposals, strategies or similar work product, the Company will\nretain exclusive right and title in and to said work product and that Mr. Beyer may not otherwise use or disclose same to third parties without the\nCompany’s prior written approval.\n8. COMPLIANCE WITH COMPANY STANDARDS OF CONDUCT AND COMPLIANCE WITH LAW. The Company conducts its business in\nstrict compliance with applicable laws, rules, and regulations and with honesty, integrity, and a strong commitment to the highest standards of\nbusiness ethics. Mr. Beyer agrees at all times to adhere to the Company policies in this regard, as well as any other customary standards of business\nconduct including conduct prescribed by law or regulation. Mr. Beyer further agrees that he will at all times comply with all federal, state, and local\nlaws, regulations, and orders in the performance of this Agreement.\n9. NOTICES. All notices and other communications hereunder will be in writing and will be deemed given if delivered personally, telecopied (which\nis confirmed) or dispatched by a nationally recognized overnight courier service to the parties at the following addresses (or at such other address for\na party as will be specified by like notice):\na.  if to the Company:\nIntersil Corporation\n1001 Murphy Ranch Road\nMilpitas, CA 95035\nAttn: Office of the General Counsel\nFax: 408/321-9594\nEmail: ttokos@]Intersil.com\nb. if to Mr. Beyer:\nRichard Beyer\nHome Address\n45\n10. GOVERNING LAW. This Agreement will be governed by, subject to, and construed in accordance with the laws of the State of California.\nVenue will lie in the State of California for all causes of action under this Agreement, and both the Company and Mr. Beyer agree to be subject to the\nstate and Federal courts of California.\n11. CONSTRUCTION. This Agreement has been negotiated by the parties and will be interpreted fairly in accordance with its terms and without any\nconstruction in favor of or against either party.\n12. CAPTIONS AND HEADINGS. The captions and section and headings used in this Agreement are inserted for convenience only and will not\naffect the meaning or interpretation of this Agreement.\n13. WAIVER. The waiver by either party of a breach of or a default under any provision of this Agreement will not be effective unless in writing and\nwill not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor will any delay\nor omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any\nright or remedy.\n14. SEVERABILITY. If the application of any provision of this Agreement to any particular facts or circumstances will for any reason be held to be\ninvalid, illegal or unenforceable by a court, arbitration panel or other tribunal of competent jurisdiction, then (a) the validity, legality and\nenforceability of such provision as applied to any other particular facts or circumstances, and the other provisions of this Agreement, will not in any\nway be affected or impaired thereby and (b) such provision will be enforced to the maximum extent possible so as to effect the intent of the parties.\nIf, moreover, any provision contained in this Agreement will for any reason be held to be excessively broad as to duration, geographical scope,\nactivity or subject, it will be construed by limiting and reducing it, so as to be enforceable to the extent compatible with applicable law.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.\nINTERSIL CORPORATION Richard M. Beyer\nBy: /S/ Thomas C. Tokos /s/ Richard Beyer\nVice President, General Counsel & Secretary Name: Richard Beyer\n46\nAttachment A\nNon-Disclosure Agreement (NDA)\nThis non-disclosure agreement (“NDA”) is made by and between the Parties to the Agreement with an effective date the same as that of the\nAgreement. Either Party may receive or disclose Confidential Information under this NDA. The Party disclosing Confidential Information shall be\nconsidered the “Discloser.” The Party receiving Confidential Information shall be considered the “Recipient.” In consideration of the mutual\npromises and covenants contained in this NDA, and to assure the protection and preservation of the proprietary and/or confidential nature of the\ninformation to be disclosed or made available to each other, the Parties hereto agree as follows:\n1. Definition. “Confidential Information” means any non-public information, whether disclosed orally or in tangible, machine readable, or electronic\nform, by either of the Parties to the other, which the Discloser identifies at the time of disclosure as confidential, proprietary, secret, private, or the\nlike, or which under the circumstances surrounding disclosure gives indication that the information should be treated as confidential. Confidential\nInformation includes, without limitation, any specification, layout, design, drawing, formula, technique, algorithm, know-how, sample product, test\ndata, information related to engineering, manufacturing, sales, marketing, management or quality control, financial information or other information\nrelated to the business operations of the Discloser.\n2. Use of Confidential Information. Confidential Information disclosed hereunder may only be used for in support of and to provide the advisory\nservice described in the Agreement (hereinafter “Authorized Purpose”), and shall be used by Recipient solely in a manner that actually or potentially\nbenefits the Discloser, or shall not be used in a manner detrimental to Discloser. Each Discloser represents that it has the right to disclose\nConfidential Information to the Recipient for the Authorized Purpose(s) stated above.\n3. Protection of Confidential Information. Confidential Information may be exchanged between the Parties under this NDA to the extent necessary to\nfulfill the Authorized Purpose, and shall not be used for any other purpose. Recipient acknowledges that the Discloser’s Confidential Information is\na special, valuable and a unique asset, and agrees that it shall: (a) not disclose the Confidential Information to any third party without written consent\nof Discloser, (b) restrict dissemination of Confidential Information to only its employees, contractors, or agents who are directly participating in the\nAuthorized Purpose, who have a need to know the Confidential Information, and who are bound by a duty of confidentiality under terms no less\nrestrictive than contained herein concerning the use of Confidential Information, and (c) use the same degree of care as for its own information of\nlike importance, but at least reasonable care, in preventing disclosure of Confidential Information. Recipient further agrees not to reverse engineer,\ndecompile, disassemble any prototypes, software, hardware or other tangible objects or products provided hereunder which embody the Confidential\nInformation of the Discloser.\n4. Exceptions. This NDA imposes no obligation upon Recipient with respect to Confidential Information which is:\n(a) public or becomes publicly available through no act or failure on part of Recipient, or\n(b) approved in writing by the Discloser for public release or disclosure by the Recipient; or\n(c) disclosed to a third party by Discloser without a duty of confidentiality or is lawfully obtained by Recipient from a third party without a duty of\nconfidentiality or restriction on disclosure, or\n(d) independently known by or independently developed by the Recipient without the use of Confidential Information disclosed by the Discloser; or\n(e) required to be disclosed pursuant to the order of a court of competent jurisdiction; or otherwise required to be disclosed by law through no act of\nthe Recipient, provided, however, that the Recipient has notified the Discloser upon learning of the possibility that disclosure could be required\npursuant to any such law or legal order and has given the Discloser a reasonable opportunity to contest or limit the scope of such required disclosure\nand has cooperated with the Discloser toward this end.\n5. Term and Termination. This NDA shall be co-terminus with the Term of the Agreement. Termination shall not, however, affect the rights and\nobligations included herein with respect to Confidential Information disclosed hereunder prior to termination. Upon termination of this NDA, each\nParty will, and\n47\nwithin a reasonable period of time thereafter, return all Confidential Information received from the Recipient and copies made thereof by the\nRecipient, or, if acceptable to the Discloser, certify by written memorandum that all such Confidential Information has been destroyed. Each Party\nmay retain one archival copy in its Legal Department to be used only in resolving a dispute concerning this NDA. The obligations of the Recipient\nwith respect to non-disclosure and use shall survive the expiration of this NDA indefinitely.\n6. Rights and Remedies. Each Party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore,\nthe injured Party is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies.\n7. No Formal Business Relationship. This NDA is for the purpose of protecting Confidential Information only and shall not be construed to create\nany agency, partnership, joint venture or other such relationship between the Parties except as defined in the Agreement, nor shall the exchange of\nConfidential Information represent any commitment by the Parties to enter into any business relationship. If the Parties desire to pursue business\nopportunities, the Parties shall execute a separate written NDA to govern such business relationship.\n8. No Obligation to Disclose or Warranty. Neither Party has an obligation to supply Confidential Information hereunder. Confidential Information\ndisclosed hereunder is provided on an “AS IS” basis, without any warranty, whether express, implied or otherwise, regarding its accuracy, usefulness\nor performance.\n9. No Transfer or License of Intellectual Property. Recipient agrees that all Confidential Information received is and will remain the sole property of\nDiscloser. Neither the execution of this NDA, nor the furnishing of any Confidential Information hereunder shall be construed as a grant by\nimplication, estoppel or otherwise, of a license by either Party to the other to make, have made, use or sell any product using Confidential\nInformation or as a license under any patent, patent application, utility model, copyright, maskwork right, or any other intellectual property right.\n10. Assignment. This NDA and the rights and obligations hereunder may not be transferred or assigned by one party without the prior written\napproval of the other party hereto. Notwithstanding the foregoing, either party hereto may assign this NDA and corresponding rights hereunder to a\nsuccessor-in-interest (a) to all or part of the business unit to which this NDA relates, and (b) that agrees to abide by all obligations herein.\n11. Export Control Laws and Regulations. Recipient agrees it will not, in any form, export, re-export, resell, ship or divert or cause to be exported,\nre-exported, re-sold, shipped or diverted, directly or indirectly, any product or technical data furnished hereunder, or the direct product of such\ntechnical data, to any country for which the United States Government requires an export license, or other approval, without first obtaining such\nlicense or approval.\n12. Applicable Law. The law of the state of Delaware, U.S.A. except for its choice of laws rules shall be used to construe and govern this NDA. The\nprevailing party in any action to enforce this NDA shall be entitled to recover reasonable attorneys fees and costs.\n13. Binding Effect. This NDA shall be binding upon each Party, its affiliates, respective employees, agents, representatives, successors, and assigns.\nNo change, modification, alteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives of\nboth Parties.\n14. Entire NDA. This NDA contains the entire understanding between the Parties relative to the protection of Confidential Information and\nsupersedes all prior and collateral communications, reports, and understandings between the Parties in respect thereto.\n48	EX-10.03 4 ex1003.htm CONSULTING AGREEMENT\nExhibit 10.03\nCONSULTING AGREEMENT\nThis consulting agreement (the "Agreement"), is entered into as of March 17, 2008 (the "Effective Date") by and among Intersil Corporation, on\nbehalf of itself and its subsidiaries (hereinafter "the Company"), with a place of business at 1001 Murphy Ranch Road, Milpitas, California 95035,\nand Richard M. Beyer, whose address is 13503 Fremont Road, Los Altos, CA 94022 (hereinafter "Mr. Beyer").\nWHEREAS, Mr. Beyer resigned his positions as Director and Chief Executive Officer of the Company, effective February 13, 2008;\nWHEREAS, since his resignation as Director and Chief Executive Officer of the Company as of February 13, 2008, Mr. Beyer has continued\nhis\nemployment with the Company in the capacity of a non-officer special advisor to the Chief Executive Officer and Board of Directors (the "Board");\nWHEREAS, Mr. Beyer has informed the Board of his intent to terminate his employment with the Company, effective March 16, 2008; and\nWHEREAS, the Board has determined that it is in the best interests of the Company that Mr. Beyer continue to be available to provide advisory\nservices to the new Chief Executive Officer and Board after his termination of his employment through a transition period ending on April 16, 2008.\nAGREEMENT\nNOW, THEREFORE, in consideration of the premises and mutual promises herein contained, the parties do hereby agree as follows:\n1.\nCONSULTING SERVICES. During the term of this Agreement, Mr. Beyer will make himself available for and provide (upon reasonable request\nfrom\nthe\nChief Executive Officer or Board which will not significantly interfere with obligations Mr. Beyer may have to his new employer) up to\nten\n(10) hours per week of advice to the Company's Chief Executive Officer and/or the Board concerning business matters, financial matters, customer\nrelationship issues and such other Company matters with which he has familiarity (the "Consulting Services"). Mr. Beyer will comply with and be\nbound by the Company's operating policies and procedures (as applicable to consulting arrangements) that are in effect during the term of this\nAgreement. This Agreement does not supersede any prior employment agreement Mr. Beyer has or had with the Company.\n2. TERM. The term of this Agreement will commence on the Effective Date and will end on April 16, 2008 (the "Consulting Term").\n3. CONSIDERATION. Mr. Beyer will be compensated as follows:\n(a) Stock Options. During the Consulting Term, those employee stock options previously issued to Mr. Beyer by the Company during Mr. Beyer's\nemployment with the Company that are scheduled to become vested on or before April 16, 2008 will continue to vest through the Consulting Term\nand\nwill\nbe exercisable in accordance with the terms of such grants, and subject to the terms of the Company's 1999 Equity Compensation Plan\n(the\n"1999 Equity Plan"). Those employee stock options previously granted to Mr. Beyer that would become vested after April 16, 2008 will become\nunexercisable and expire on March 16, 2008.\n44\n(b) Deferred Stock Units. During the Consulting Term, those deferred stock units ("DSUs) previously issued to Mr. Beyer during Mr. Beyer's\nemployment with the Company that are scheduled to become vested on or before April 16, 2008 will continue to vest through the Consulting Term.\nThose DSUs previously granted to Mr. Beyer that would become vested after April 16, 2008 will terminate and expire on March 16, 2008.\nDistribution of any vested DSUs will be in accordance with the terms of the respective DSU award and the terms of the 1999 Equity Plan.\n4.\nINDEPENDENT CONTRACTOR. During the Consulting Term, Mr. Beyer will be an independent contractor, and not an employee or agent of the\nCompany for any purpose, and Mr. Beyer will have no authority to represent or bind the Company in any capacity with any party.\n5. ASSIGNMENT. This Agreement is a personal services agreement and may not be transferred or assigned by Mr. Beyer, and any such assignment\nwill be void.\n6. CONFIDENTIALITY AND NON-DISCLOSURE. It is recognized that Mr. Beyer has acquired and may acquire confidential information,\nincluding trade secrets, computer software, and proprietary data, regarding the above matters and other affairs, products, technologies and business\nof the Company during the course of this Agreement ("Confidential Information"). Mr. Beyer hereby agrees and covenants to hold in trust and\nconfidence all such Confidential Information during and following Mr. Beyer's retention in accordance with the terms and conditions of the\nCompany's Non-Disclosure Agreement, Attachment A (attached hereto and incorporated herein by reference). At no time will Mr. Beyer divulge\nConfidential Information of the Company for any purposes other than for the benefit of the Company. Any information created by Mr. Beyer while\nengaged in any work for the Company or while using the Company materials will be deemed to be the Company Confidential Information, subject to\nthe exceptions in Attachment A, and will be so marked and treated upon creation by Mr. Beyer.\n7.\nOWNERSHIP OF WORK PRODUCT. Mr. Beyer agrees that with respect to any work performed for the Company hereunder which results in\nMr. Beyer's preparation of written or verbal reports, studies, analyses, research data, proposals, strategies or similar work product, the Company will\nretain exclusive right and title in and to said work product and that Mr. Beyer may not otherwise use or disclose same to third parties without the\nCompany's prior written approval.\n8. COMPLIANCE WITH COMPANY STANDARDS OF CONDUCT AND COMPLIANCE WITH LAW. The Company conducts its business\nin\nstrict compliance with applicable laws, rules, and regulations and with honesty, integrity, and a strong commitment to the highest standards of\nbusiness ethics. Mr. Beyer agrees at all times to adhere to the Company policies in this regard, as well as any other customary standards of business\nconduct including conduct prescribed by law or regulation. Mr. Beyer further agrees that he will at all times comply with all federal, state, and\nlocal\nlaws, regulations, and orders in the performance of this Agreement.\n9. NOTICES. All notices and other communications hereunder will be in writing and will be deemed given if delivered personally, telecopied (which\nis confirmed) or dispatched by a nationally recognized overnight courier service to the parties at the following addresses (or at such other address for\na party as will be specified by like notice):\na.\nif to the Company.:\nIntersil Corporation\n1001 Murphy Ranch Road\nMilpitas, CA 95035\nAttn: Office of the General Counsel\nFax: 408/321-9594\nEmail: ttokos@Intersil.com\nb.\nif to Mr. Beyer:\nRichard Beyer\nHome Address\n45\n10. GOVERNING LAW. This Agreement will be governed by, subject to, and construed in accordance with the laws of the State of California.\nVenue will lie in the State of California for all causes of action under this Agreement, and both the Company and Mr. Beyer agree to be subject to the\nstate and Federal courts of California.\n11. CONSTRUCTION. This Agreement has been negotiated by the parties and will be interpreted fairly in accordance with its terms and without any\nconstruction in favor of or against either party.\n12. CAPTIONS AND HEADINGS. The captions and section and headings used in this Agreement are inserted for convenience only and will not\naffect the meaning or interpretation of this Agreement.\n13. WAIVER. The waiver by either party of a breach of or a default under any provision of this Agreement will not be effective unless in writing and\nwill\nnot be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor will any delay\nor omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any\nright or remedy.\n14. SEVERABILITY. If the application of any provision of this Agreement to any particular facts or circumstances will for any reason be held to be\ninvalid, illegal or unenforceable by a court, arbitration panel or other tribunal of competent jurisdiction, then (a) the validity, legality and\nenforceability of such provision as applied to any other particular facts or circumstances, and the other provisions of this Agreement, will not in any\nway be affected or impaired thereby and (b) such provision will be enforced to the maximum extent possible so as to effect the intent of the parties.\nIf, moreover, any provision contained in this Agreement will for any reason be held to be excessively broad as to duration, geographical scope,\nactivity or subject, it will be construed by limiting and reducing it, so as to be enforceable to the extent compatible with applicable law.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.\nINTERSIL CORPORATION\nRichard M. Beyer\nBy: /S/ Thomas C. Tokos\n/s/ Richard Beyer\nVice President, General Counsel & Secretary\nName: Richard Beyer\n46\nAttachment A\nNon-Disclosure Agreement (NDA)\nThis non-disclosure agreement ("NDA") is made by and between the Parties to the Agreement with an effective date the same as that of the\nAgreement. Either Party may receive or disclose Confidential Information under this NDA. The Party disclosing Confidential Information shall be\nconsidered the "Discloser." The Party receiving Confidential Information shall be considered the "Recipient." In consideration of the mutual\npromises and covenants contained in this NDA, and to assure the protection and preservation of the proprietary and/or confidential nature of the\ninformation to be disclosed or made available to each other, the Parties hereto agree as follows:\n1.\nDefinition. "Confidential Information" means any non-public information, whether disclosed orally or in tangible, machine readable, or electronic\nform, by either of the Parties to the other, which the Discloser identifies at the time of disclosure as confidential, proprietary, secret, private,\nor\nthe\nlike, or which under the circumstances surrounding disclosure gives indication that the information should be treated as confidential. Confidential\nInformation includes, without limitation, any specification, layout, design, drawing, formula, technique, algorithm, know-how, sample product, test\ndata, information related to engineering, manufacturing, sales, marketing, management or quality control, financial information or other information\nrelated to the business operations of the Discloser.\n2. Use of Confidential Information. Confidential Information disclosed hereunder may only be used for in support of and to provide the advisory\nservice described in the Agreement (hereinafter "Authorized Purpose"), and shall be used by Recipient solely in a manner that actually or potentially\nbenefits the Discloser, or shall not be used in a manner detrimental to Discloser. Each Discloser represents that it has the right to disclose\nConfidential Information to the Recipient for the Authorized Purpose(s) stated above.\n3. Protection of Confidential Information. Confidential Information may be exchanged between the Parties under this NDA to the extent necessary to\nfulfill\nthe Authorized Purpose, and shall not be used for any other purpose. Recipient acknowledges that the Discloser's Confidential Information is\na special, valuable and a unique asset, and agrees that it shall: (a) not disclose the Confidential Information to any third party without written consent\nof Discloser, (b) restrict dissemination of Confidential Information to only its employees, contractors, or agents who are directly participating in the\nAuthorized Purpose, who have a need to know the Confidential Information, and who are bound by a duty of confidentiality under terms no less\nrestrictive than contained herein concerning the use of Confidential Information, and (c) use the same degree of care as for its own information\nof\nlike importance, but at least reasonable care, in preventing disclosure of Confidential Information. Recipient further agrees not to reverse engineer,\ndecompile, disassemble any prototypes, software, hardware or other tangible objects or products provided hereunder which embody the Confidential\nInformation of the Discloser.\n4. Exceptions. This NDA imposes no obligation upon Recipient with respect to Confidential Information which is:\n(a) public or becomes publicly available through no act or failure on part of Recipient, or\n(b) approved in writing by the Discloser for public release or disclosure by the Recipient; or\n(c) disclosed to a third party by Discloser without a duty of confidentiality or is lawfully obtained by Recipient from a third party without a duty of\nconfidentiality or restriction on disclosure, or\n(d) independently known by or independently developed by the Recipient without the use of Confidential Information disclosed by the Discloser; or\n(e) required to be disclosed pursuant to the order of a court of competent jurisdiction; or otherwise required to be disclosed by law through no act\nof\nthe Recipient, provided, however, that the Recipient has notified the Discloser upon learning of the possibility that disclosure could be required\npursuant to any such law or legal order and has given the Discloser a reasonable opportunity to contest or limit the scope of such required disclosure\nand has cooperated with the Discloser toward this end.\n5. Term and Termination. This NDA shall be co-terminus with the Term of the Agreement. Termination shall not, however, affect the rights and\nobligations included herein with respect to Confidential Information disclosed hereunder prior to termination. Upon termination of this NDA, each\nParty will, and\n47\nwithin a reasonable period of time thereafter, return all Confidential Information received from the Recipient and copies made thereof by the\nRecipient, or, if acceptable to the Discloser, certify by written memorandum that all such Confidential Information has been destroyed. Each\nParty\nmay retain one archival copy in its Legal Department to be used only in resolving a dispute concerning this NDA. The obligations of the Recipient\nwith respect to non-disclosure and use shall survive the expiration of this NDA indefinitely.\n6. Rights and Remedies. Each Party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore,\nthe injured Party is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies.\n7.\nNo Formal Business Relationship. This NDA is for the purpose of protecting Confidential Information only and shall not be construed to create\nany agency, partnership, joint venture or other such relationship between the Parties except as defined in the Agreement, nor shall the exchange of\nConfidential Information represent any commitment by the Parties to enter into any business relationship. If the Parties desire to pursue business\nopportunities, the Parties shall execute a separate written NDA to govern such business relationship.\n8. No Obligation to Disclose or Warranty. Neither Party has an obligation to supply Confidential Information hereunder. Confidential Information\ndisclosed hereunder is provided on an "AS IS" basis, without any warranty, whether express, implied or otherwise, regarding its accuracy, usefulness\nor performance.\n9. No Transfer or License of Intellectual Property. Recipient agrees that all Confidential Information received is and will remain the sole property\nof\nDiscloser. Neither the execution of this NDA, nor the furnishing of any Confidential Information hereunder shall be construed as a grant by\nimplication, estoppel or otherwise, of a license by either Party to the other to make, have made, use or sell any product using Confidentia\nInformation or as a license under any patent, patent application, utility model, copyright, maskwork right, or any other intellectual property right.\n10.\nAssignment. This NDA and the rights and obligations hereunder may not be transferred or assigned by one party without the prior written\napproval\nof\nthe other party hereto. Notwithstanding the foregoing, either party hereto may assign this NDA and corresponding rights hereunder\nto\na\nsuccessor-in-interest (a) to all or part of the business unit to which this NDA relates, and (b) that agrees to abide by all obligations herein.\n11. Export Control Laws and Regulations. Recipient agrees it will not, in any form, export, re-export, resell, ship or divert or cause to be exported,\nre-exported, re-sold, shipped or diverted, directly or indirectly, any product or technical data furnished hereunder, or the direct product of such\ntechnical data, to any country for which the United States Government requires an export license, or other approval, without first obtaining such\nlicense or approval.\n12. Applicable Law. The law of the state of Delaware, U.S.A. except for its choice of laws rules shall be used to construe and govern this NDA. The\nprevailing party in any action to enforce this NDA shall be entitled to recover reasonable attorneys fees and costs.\n13. Binding Effect. This NDA shall be binding upon each Party, its affiliates, respective employees, agents, representatives, successors, and assigns.\nNo change, modification, alteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives of\nboth Parties.\n14. Entire NDA. This NDA contains the entire understanding between the Parties relative to the protection of Confidential Information and\nsupersedes all prior and collateral communications, reports, and understandings between the Parties in respect thereto.\n48	EX-10.03 4 dex1003.htm CONSULTING AGREEMENT\nExhibit 10.03\nCONSULTING AGREEMENT\nThis consulting agreement (the “Agreement”), is entered into as of March 17, 2008 (the “Effective Date”) by and among Intersil Corporation, on\nbehalf of itself and its subsidiaries (hereinafter “the Company”), with a place of business at 1001 Murphy Ranch Road, Milpitas, California 95035,\nand Richard M. Beyer, whose address is 13503 Fremont Road, Los Altos, CA 94022 (hereinafter “Mr. Beyer”).\nWHEREAS, Mr. Beyer resigned his positions as Director and Chief Executive Officer of the Company, effective February 13, 2008;\nWHEREAS, since his resignation as Director and Chief Executive Officer of the Company as of February 13, 2008, Mr. Beyer has continued his\nemployment with the Company in the capacity of a non-officer special advisor to the Chief Executive Officer and Board of Directors (the “Board”);\nWHEREAS, Mr. Beyer has informed the Board of his intent to terminate his employment with the Company, effective March 16, 2008; and\nWHEREAS, the Board has determined that it is in the best interests of the Company that Mr. Beyer continue to be available to provide advisory\nservices to the new Chief Executive Officer and Board after his termination of his employment through a transition period ending on April 16, 2008.\nAGREEMENT\nNOW, THEREFORE, in consideration of the premises and mutual promises herein contained, the parties do hereby agree as follows:\n1. CONSULTING SERVICES. During the term of this Agreement, Mr. Beyer will make himself available for and provide (upon reasonable request\nfrom the Chief Executive Officer or Board which will not significantly interfere with obligations Mr. Beyer may have to his new employer) up to ten\n(10) hours per week of advice to the Company’s Chief Executive Officer and/or the Board concerning business matters, financial matters, customer\nrelationship issues and such other Company matters with which he has familiarity (the “Consulting Services”). Mr. Beyer will comply with and be\nbound by the Company’s operating policies and procedures (as applicable to consulting arrangements) that are in effect during the term of this\nAgreement. This Agreement does not supersede any prior employment agreement Mr. Beyer has or had with the Company.\n2. TERM. The term of this Agreement will commence on the Effective Date and will end on April 16, 2008 (the “Consulting Term”).\n3. CONSIDERATION. Mr. Beyer will be compensated as follows:\n(a) Stock Options. During the Consulting Term, those employee stock options previously issued to Mr. Beyer by the Company during Mr. Beyer’s\nemployment with the Company that are scheduled to become vested on or before April 16, 2008 will continue to vest through the Consulting Term\nand will be exercisable in accordance with the terms of such grants, and subject to the terms of the Company’s 1999 Equity Compensation Plan (the\n“1999 Equity Plan”). Those employee stock options previously granted to Mr. Beyer that would become vested after April 16, 2008 will become\nunexercisable and expire on March 16, 2008.\n44\n(b) Deferred Stock Units. During the Consulting Term, those deferred stock units (“DSUs) previously issued to Mr. Beyer during Mr. Beyer’s\nemployment with the Company that are scheduled to become vested on or before April 16, 2008 will continue to vest through the Consulting Term.\nThose DSUs previously granted to Mr. Beyer that would become vested after April 16, 2008 will terminate and expire on March 16, 2008.\nDistribution of any vested DSUs will be in accordance with the terms of the respective DSU award and the terms of the 1999 Equity Plan.\n4. INDEPENDENT CONTRACTOR. During the Consulting Term, Mr. Beyer will be an independent contractor, and not an employee or agent of the\nCompany for any purpose, and Mr. Beyer will have no authority to represent or bind the Company in any capacity with any party.\n5. ASSIGNMENT . This Agreement is a personal services agreement and may not be transferred or assigned by Mr. Beyer, and any such assignment\nwill be void.\n6. CONFIDENTIALITY AND NON-DISCLOSURE. It is recognized that Mr. Beyer has acquired and may acquire confidential information,\nincluding trade secrets, computer software, and proprietary data, regarding the above matters and other affairs, products, technologies and business\nof the Company during the course of this Agreement (“Confidential Information”). Mr. Beyer hereby agrees and covenants to hold in trust and\nconfidence all such Confidential Information during and following Mr. Beyer’s retention in accordance with the terms and conditions of the\nCompany’s Non-Disclosure Agreement, Attachment A (attached hereto and incorporated herein by reference). At no time will Mr. Beyer divulge\nConfidential Information of the Company for any purposes other than for the benefit of the Company. Any information created by Mr. Beyer while\nengaged in any work for the Company or while using the Company materials will be deemed to be the Company Confidential Information, subject to\nthe exceptions in Attachment A, and will be so marked and treated upon creation by Mr. Beyer.\n7. OWNERSHIP OF WORK PRODUCT. Mr. Beyer agrees that with respect to any work performed for the Company hereunder which results in\nMr. Beyer’s preparation of written or verbal reports, studies, analyses, research data, proposals, strategies or similar work product, the Company will\nretain exclusive right and title in and to said work product and that Mr. Beyer may not otherwise use or disclose same to third parties without the\nCompany’s prior written approval.\n8. COMPLIANCE WITH COMPANY STANDARDS OF CONDUCT AND COMPLIANCE WITH LAW. The Company conducts its business in\nstrict compliance with applicable laws, rules, and regulations and with honesty, integrity, and a strong commitment to the highest standards of\nbusiness ethics. Mr. Beyer agrees at all times to adhere to the Company policies in this regard, as well as any other customary standards of business\nconduct including conduct prescribed by law or regulation. Mr. Beyer further agrees that he will at all times comply with all federal, state, and local\nlaws, regulations, and orders in the performance of this Agreement.\n9. NOTICES . All notices and other communications hereunder will be in writing and will be deemed given if delivered personally, telecopied (which\nis confirmed) or dispatched by a nationally recognized overnight courier service to the parties at the following addresses (or at such other address for\na party as will be specified by like notice):\na.\nif to the Company:\nIntersil Corporation\n1001 Murphy Ranch Road\nMilpitas, CA 95035\nAttn: Office of the General Counsel\nFax: 408/321-9594\nEmail: ttokos@Intersil.com\nb. if to Mr. Beyer:\nRichard Beyer\nHome Address\n45\n10. GOVERNING LAW. This Agreement will be governed by, subject to, and construed in accordance with the laws of the State of California.\nVenue will lie in the State of California for all causes of action under this Agreement, and both the Company and Mr. Beyer agree to be subject to the\nstate and Federal courts of California.\n11. CONSTRUCTION. This Agreement has been negotiated by the parties and will be interpreted fairly in accordance with its terms and without any\nconstruction in favor of or against either party.\n12. CAPTIONS AND HEADINGS. The captions and section and headings used in this Agreement are inserted for convenience only and will not\naffect the meaning or interpretation of this Agreement.\n13. WAIVER. The waiver by either party of a breach of or a default under any provision of this Agreement will not be effective unless in writing and\nwill not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor will any delay\nor omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any\nright or remedy.\n14. SEVERABILITY. If the application of any provision of this Agreement to any particular facts or circumstances will for any reason be held to be\ninvalid, illegal or unenforceable by a court, arbitration panel or other tribunal of competent jurisdiction, then (a) the validity, legality and\nenforceability of such provision as applied to any other particular facts or circumstances, and the other provisions of this Agreement, will not in any\nway be affected or impaired thereby and (b) such provision will be enforced to the maximum extent possible so as to effect the intent of the parties.\nIf, moreover, any provision contained in this Agreement will for any reason be held to be excessively broad as to duration, geographical scope,\nactivity or subject, it will be construed by limiting and reducing it, so as to be enforceable to the extent compatible with applicable law.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.\nINTERSIL CORPORATION\nRichard M. Beyer\nBy: /S/ Thomas C. Tokos\n/s/ Richard Beyer\nVice President, General Counsel & Secretary\nName: Richard Beyer\n46\nAttachment A\nNon-Disclosure Agreement (NDA)\nThis non-disclosure agreement (“NDA”) is made by and between the Parties to the Agreement with an effective date the same as that of the\nAgreement. Either Party may receive or disclose Confidential Information under this NDA. The Party disclosing Confidential Information shall be\nconsidered the “Discloser.” The Party receiving Confidential Information shall be considered the “Recipient.” In consideration of the mutual\npromises and covenants contained in this NDA, and to assure the protection and preservation of the proprietary and/or confidential nature of the\ninformation to be disclosed or made available to each other, the Parties hereto agree as follows:\n1. Definition. “Confidential Information” means any non-public information, whether disclosed orally or in tangible, machine readable, or electronic\nform, by either of the Parties to the other, which the Discloser identifies at the time of disclosure as confidential, proprietary, secret, private, or the\nlike, or which under the circumstances surrounding disclosure gives indication that the information should be treated as confidential. Confidential\nInformation includes, without limitation, any specification, layout, design, drawing, formula, technique, algorithm, know-how, sample product, test\ndata, information related to engineering, manufacturing, sales, marketing, management or quality control, financial information or other information\nrelated to the business operations of the Discloser.\n2. Use of Confidential Information. Confidential Information disclosed hereunder may only be used for in support of and to provide the advisory\nservice described in the Agreement (hereinafter “Authorized Purpose”), and shall be used by Recipient solely in a manner that actually or potentially\nbenefits the Discloser, or shall not be used in a manner detrimental to Discloser. Each Discloser represents that it has the right to disclose\nConfidential Information to the Recipient for the Authorized Purpose(s) stated above.\n3. Protection of Confidential Information. Confidential Information may be exchanged between the Parties under this NDA to the extent necessary to\nfulfill the Authorized Purpose, and shall not be used for any other purpose. Recipient acknowledges that the Discloser’s Confidential Information is\na special, valuable and a unique asset, and agrees that it shall: (a) not disclose the Confidential Information to any third party without written consent\nof Discloser, (b) restrict dissemination of Confidential Information to only its employees, contractors, or agents who are directly participating in the\nAuthorized Purpose, who have a need to know the Confidential Information, and who are bound by a duty of confidentiality under terms no less\nrestrictive than contained herein concerning the use of Confidential Information, and (c) use the same degree of care as for its own information of\nlike importance, but at least reasonable care, in preventing disclosure of Confidential Information. Recipient further agrees not to reverse engineer,\ndecompile, disassemble any prototypes, software, hardware or other tangible objects or products provided hereunder which embody the Confidential\nInformation of the Discloser.\n4. Exceptions. This NDA imposes no obligation upon Recipient with respect to Confidential Information which is:\n(a) public or becomes publicly available through no act or failure on part of Recipient, or\n(b) approved in writing by the Discloser for public release or disclosure by the Recipient; or\n(c) disclosed to a third party by Discloser without a duty of confidentiality or is lawfully obtained by Recipient from a third party without a duty of\nconfidentiality or restriction on disclosure, or\n(d) independently known by or independently developed by the Recipient without the use of Confidential Information disclosed by the Discloser; or\n(e) required to be disclosed pursuant to the order of a court of competent jurisdiction; or otherwise required to be disclosed by law through no act of\nthe Recipient, provided, however, that the Recipient has notified the Discloser upon learning of the possibility that disclosure could be required\npursuant to any such law or legal order and has given the Discloser a reasonable opportunity to contest or limit the scope of such required disclosure\nand has cooperated with the Discloser toward this end.\n5. Term and Termination. This NDA shall be co-terminus with the Term of the Agreement. Termination shall not, however, affect the rights and\nobligations included herein with respect to Confidential Information disclosed hereunder prior to termination. Upon termination of this NDA, each\nParty will, and\n47\nwithin a reasonable period of time thereafter, return all Confidential Information received from the Recipient and copies made thereof by the\nRecipient, or, if acceptable to the Discloser, certify by written memorandum that all such Confidential Information has been destroyed. Each Party\nmay retain one archival copy in its Legal Department to be used only in resolving a dispute concerning this NDA. The obligations of the Recipient\nwith respect to non-disclosure and use shall survive the expiration of this NDA indefinitely.\n6. Rights and Remedies. Each Party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore,\nthe injured Party is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies.\n7. No Formal Business Relationship. This NDA is for the purpose of protecting Confidential Information only and shall not be construed to create\nany agency, partnership, joint venture or other such relationship between the Parties except as defined in the Agreement, nor shall the exchange of\nConfidential Information represent any commitment by the Parties to enter into any business relationship. If the Parties desire to pursue business\nopportunities, the Parties shall execute a separate written NDA to govern such business relationship.\n8. No Obligation to Disclose or Warranty. Neither Party has an obligation to supply Confidential Information hereunder. Confidential Information\ndisclosed hereunder is provided on an “AS IS” basis, without any warranty, whether express, implied or otherwise, regarding its accuracy, usefulness\nor performance.\n9. No Transfer or License of Intellectual Property. Recipient agrees that all Confidential Information received is and will remain the sole property of\nDiscloser. Neither the execution of this NDA, nor the furnishing of any Confidential Information hereunder shall be construed as a grant by\nimplication, estoppel or otherwise, of a license by either Party to the other to make, have made, use or sell any product using Confidential\nInformation or as a license under any patent, patent application, utility model, copyright, maskwork right, or any other intellectual property right.\n10. Assignment. This NDA and the rights and obligations hereunder may not be transferred or assigned by one party without the prior written\napproval of the other party hereto. Notwithstanding the foregoing, either party hereto may assign this NDA and corresponding rights hereunder to a\nsuccessor-in-interest (a) to all or part of the business unit to which this NDA relates, and (b) that agrees to abide by all obligations herein.\n11. Export Control Laws and Regulations. Recipient agrees it will not, in any form, export, re-export, resell, ship or divert or cause to be exported,\nre-exported, re-sold, shipped or diverted, directly or indirectly, any product or technical data furnished hereunder, or the direct product of such\ntechnical data, to any country for which the United States Government requires an export license, or other approval, without first obtaining such\nlicense or approval.\n12. Applicable Law. The law of the state of Delaware, U.S .A. except for its choice of laws rules shall be used to construe and govern this NDA. The\nprevailing party in any action to enforce this NDA shall be entitled to recover reasonable attorneys fees and costs.\n13. Binding Effect. This NDA shall be binding upon each Party, its affiliates, respective employees, agents, representatives, successors, and assigns.\nNo change, modification, alteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives of\nboth Parties.\n14. Entire NDA. This NDA contains the entire understanding between the Parties relative to the protection of Confidential Information and\nsupersedes all prior and collateral communications, reports, and understandings between the Parties in respect thereto.\n48
+2268c5d1120f1abd57170d689f496418.pdf	effective_date jurisdiction party term	Exhibit A\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this "Agreement"), is made and entered into as of the date on which it is fully\nexecuted, as indicated by signatures below, by and among First Financial Northwest, Inc. (the "Company"), the Stilwell Group (composed of\nStilwell Associates, L.P., Stilwell Partners, L.P., Stilwell Value Partners II, L.P., Stilwell Value Partners V, L.P., Stilwell Value Partners VI, L.P.,\nStilwell Value Partners VII, L.P., Stilwell Value LLC, Stilwell Associates Insurance Fund of The S.A.L .I . Multi-Series Fund L.P., Stilwell Advisers\nLLC, and Joseph Stilwell, an individual, and their employees and representatives), and Spencer L. Schneider, a director nominee of the Stilwell\nGroup ("Schneider").\nWHEREAS, the Company has agreed to place Schneider on its board of directors, subject to approval by interested state and\nfederal regulatory agencies;\nWHEREAS, the Company, the Stilwell Group and Schneider have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, the parties hereto mutually agree as follows:\n1.\nIn connection with Schneider serving on the Company's board, Schneider and other Company employees, directors, and\nagents may divulge nonpublic information concerning the Company and its subsidiaries to the Stilwell Group and such information may be shared\namong the Stilwell Group's employees and agents who have a need to know such information. The Stilwell Group expressly agrees to maintain all\nnonpublic information concerning the Company and its subsidiaries in confidence. The Stilwell Group expressly acknowledges that federal and\nstate securities laws may prohibit a person from purchasing or selling securities of a company, or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such other person is likely to purchase or sell such securities, while the first-\nmentioned person is in possession of material nonpublic information about such company. The Stilwell Group agrees to comply with the Company's\ninsider trading and disclosure policies, as in effect from time to time, to the same extent as if it were a director of the Company. To the extent the\nnonpublic information concerning the Company and its subsidiaries received by the Stilwell Group is material, this Agreement is intended to satisfy\nthe confidentiality agreement exclusion of Regulation FD of the Securities and Exchange Commission (the "SEC") set forth in Section 243.100(b)\n(2)(ii) of Regulation FD.\n2.\nEach of the Stilwell Group and Schneider represents and warrants to the Company that this Agreement has been duly and\nvalidly authorized (in the case of the entity members of the Stilwell Group), executed and delivered by them, and is a valid and binding agreement\nenforceable against them in accordance with its terms.\n3.\nSchneider hereby further represents and warrants to the Company that: (a) he satisfies all of the qualifications to be a\ndirector of the Company as set forth in Article III, Section 4 of the Company's bylaws and any additional applicable qualifications under the laws of\nthe State of Washington or under the regulations of any bank regulatory authority, and that he is not in any way precluded from serving as a director\nby order or other action of any court, regulatory or other governmental authority; and (b) no event has occurred with respect to Schneider that would\nrequire disclosure in a document filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange\nAct of 1934, as amended, under Item 401(f) of SEC Regulation S-K.\n4.\nThe Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic\ninformation of the Company and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this\nAgreement and that, in addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable\nrelief as a remedy for such breach, and in conjunction therewith the Company shall not be required to post any bond.\n5.\nThis Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and\nsupersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not\nreferred to herein.\n6.\nThis Agreement shall be governed by, and construed in accordance with, the laws of the State of Washington, without\nregard to choice of law principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby\nirrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in the State of Washington to resolve any dispute arising from\nthis Agreement and waives any defense of inconvenient or improper forum.\n7.\nThe terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or\nportion thereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8.\nAll representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this\nAgreement.\n9.\nThis Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a\nwritten agreement executed by all of the parties hereto.\n10.\nThis Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall\nconstitute one and the same agreement.\n16\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as\nof the day and year first above written.\nTHE STILWELL GROUP\nFIRST FINANCIAL NORTHWEST, INC.\n/s/Joseph Stilwell\n/s/Victor Karpiak\nBy:\nDate\nJoseph Stilwell\n12-20, 2012\nBy:\nDate\nVictor Karpiak, President, Chief Executive Officer\nand Chairman of the Board\nDecember 19, 2012\nSPENCER L. SCHNEIDER\n/s/Spencer L. Schneider\nDate: 12/20, 2012\n17	Exhibit A\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this "Agreement"), is made and entered into as of the date on which it is fully\nexecuted, as indicated by signatures below, by and among First Financial Northwest, Inc. (the "Company"), the Stilwell Group (composed of\nStilwell Associates, L.P., Stilwell Partners, L.P., Stilwell Value Partners II, L.P., Stilwell Value Partners V, L.P., Stilwell Value Partners VI, L.P,,\nStilwell Value Partners VII, L.P., Stilwell Value LLC, Stilwell Associates Insurance Fund of The S.A.L.I. Multi-Series Fund L.P., Stilwell Advisers\nLLC, and Joseph Stilwell, an individual, and their employees and representatives), and Spencer L. Schneider, a director nominee of the Stilwell\nGroup ("Schneider").\nWHEREAS, the Company has agreed to place Schneider on its board of directors, subject to approval by interested state and\nfederal regulatory agencies;\nWHEREAS, the Company, the Stilwell Group and Schneider have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, the parties hereto mutually agree as follows:\n1. In connection with Schneider serving on the Company's board, Schneider and other Company employees, directors, and\nagents may divulge nonpublic information concerning the Company and its subsidiaries to the Stilwell Group and such information may be shared\namong the Stilwell Group's employees and agents who have a need to know such information. The Stilwell Group expressly agrees to maintain all\nnonpublic information concerning the Company and its subsidiaries in confidence. The Stilwell Group expressly acknowledges that federal and\nstate securities laws may prohibit a person from purchasing or selling securities of a company, or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such other person is likely to purchase or sell such securities, while the first-\nmentioned person is in possession of material nonpublic information about such company. The Stilwell Group agrees to comply with the Company's\ninsider trading and disclosure policies, as in effect from time to time, to the same extent as if it were a director of the Company. To the extent the\nnonpublic information concerning the Company and its subsidiaries received by the Stilwell Group is material, this Agreement is intended to satisfy\nthe confidentiality agreement exclusion of Regulation FD of the Securities and Exchange Commission (the "SEC") set forth in Section 243.100(b)\n(2)(ii) of Regulation FD.\n2. Each of the Stilwell Group and Schneider represents and warrants to the Company that this Agreement has been duly and\nvalidly authorized (in the case of the entity members of the Stilwell Group), executed and delivered by them, and is a valid and binding agreement\nenforceable against them in accordance with its terms.\n3. Schneider hereby further represents and warrants to the Company that: (a) he satisfies all of the qualifications to be a\ndirector of the Company as set forth in Article III, Section 4 of the Company's bylaws and any additional applicable qualifications under the laws of\nthe State of Washington or under the regulations of any bank regulatory authority, and that he is not in any way precluded from serving as a director\nby order or other action of any court, regulatory or other governmental authority; and (b) no event has occurred with respect to Schneider that would\nrequire disclosure in a document filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange\nAct of 1934, as amended, under Item 401(f) of SEC Regulation S-K.\n4. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic\ninformation of the Company and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this\nAgreement and that, in addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable\nrelief as a remedy for such breach, and in conjunction therewith the Company shall not be required to post any bond.\n5. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and\nsupersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not\nreferred to herein.\n6. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Washington, without\nregard to choice of law principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby\nirrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in the State of Washington to resolve any dispute arising from\nthis Agreement and waives any defense of inconvenient or improper forum.\n7. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or\nportion thereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8. All representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this\nAgreement.\n9. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a\nwritten agreement executed by all of the parties hereto.\n10. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall\nconstitute one and the same agreement.\n16\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as\nof the day and year first above written.\nTHE STILWELL GROUP FIRST FINANCIAL NORTHWEST, INC.\n/s/Joseph Stilwell /s/Victor Karpiak\nBy: Joseph Stilwell By: Victor Karpiak, President, Chief Executive Officer\nand Chairman of the Board\nDate 12-20, 2012\nDate December 19, 2012\nSPENCER L. SCHNEIDER\n/s/Spencer L. Schneider\nDate: 12/20, 2012\n17	Exhibit A\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this "Agreement"), is made and entered into as of the date on which it is fully\nexecuted, as indicated by signatures below, by and among First Financial Northwest, Inc. (the "Company"), the Stilwell Group (composed of\nStilwell Associates, L.P., Stilwell Partners, L.P., Stilwell Value Partners II, L.P., Stilwell Value Partners V, L.P., Stilwell Value Partners VI, L.P.,\nStilwell Value Partners VII, L.P., Stilwell Value LLC, Stilwell Associates Insurance Fund of The S.A.L.I. Multi-Series Fund L.P., Stilwell Advisers\nLLC, and Joseph Stilwell, an individual, and their employees and representatives), and Spencer L. Schneider, a director nominee of the Stilwell\nGroup ("Schneider").\nWHEREAS, the Company has agreed to place Schneider on its board of directors, subject to approval by interested state and\nfedera regulatory agencies;\nWHEREAS, the Company, the Stilwell Group and Schneider have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, the parties hereto mutually agree as follows:\n1.\nIn connection with Schneider serving on the Company's board, Schneider and other Company employees, directors, and\nagents may divulge nonpublic information concerning the Company and its subsidiaries to the Stilwell Group and such information may be shared\namong the Stilwell Group's employees and agents who have a need to know such information. The Stilwell Group expressly agrees to\nmaintain\nall\nnonpublic information concerning the Company and its subsidiaries in confidence. The Stilwell Group expressly acknowledges that federal and\nstate securities laws may prohibit a person from purchasing or selling securities of a company, or from communicating such information to any other\nperson\nunder circumstances in which it is reasonably foreseeable that such other person is likely to purchase or sell such securities, while the first-\nmentioned person is in possession of material nonpublic information about such company. The Stilwell Group agrees to comply with the Company's\ninsider trading and disclosure policies, as in effect from time to time, to the same extent as if it were a director of the Company. To the extent the\nnonpublic information concerning the Company and its subsidiaries received by the Stilwell Group is material, this Agreement is intended to satisfy\nthe confidentiality agreement exclusion of Regulation FD of the Securities and Exchange Commission (the "SEC") set forth in Section 243.100(b)\n(2)(ii) of Regulation FD.\n2.\nEach of the Stilwell Group and Schneider represents and warrants to the Company that this Agreement has been duly and\nvalidly authorized (in the case of the entity members of the Stilwell Group), executed and delivered by them, and is a valid and binding agreement\nenforceable against them in accordance with its terms.\n3.\nSchneider hereby further represents and warrants to the Company that: (a) he satisfies all of the qualifications to be a\ndirector of the Company as set forth in Article III, Section 4 of the Company's bylaws and any additional applicable qualifications under the laws of\nthe\nState\nof\nWashington or under the regulations of any bank regulatory authority, and that he is not in any way precluded from serving as a director\nby order or other action of any court, regulatory or other governmental authority; and (b) no event has occurred with respect to Schneider that would\nrequire disclosure in a document filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange\nAct of 1934, as amended, under Item 401(f) of SEC Regulation S-K.\n4.\nThe Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic\ninformation of the Company and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this\nAgreement and that, in addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable\nrelief as a remedy for such breach, and in conjunction therewith the Company shall not be required to post any bond.\n5.\nThis Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and\nsupersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not\nreferred to herein.\n6.\nThis Agreement shall be governed by, and construed in accordance with, the laws of the State of Washington, without\nregard to choice of law principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby\nirrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in the State of Washington to resolve any dispute arising from\nthis Agreement and waives any defense of inconvenient or improper forum.\n7.\nThe terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or\nportion thereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8.\nAll representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this\nAgreement.\n9.\nThis Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery\nof\na\nwritten agreement executed by all of the parties hereto.\n10.\nThis Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall\nconstitute one and the same agreement.\n16\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as\nof the day and year first above written.\nTHE STILWELL GROUP\nFIRST FINANCIAL NORTHWEST, INC.\n/s/Joseph Stilwell\n/s/Victor Karpiak\nBy: Joseph Stilwell\nBy:\nVictor Karpiak, President, Chief Executive Officer\nand Chairman of the Board\nDate 12-20, 2012\nDate December 19, 2012\nSPENCER L. SCHNEIDER\n/s/Spencer L. Schneider\nDate: 12/20, 2012\n17	Exhibit A\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this "Agreement"), is made and entered into as of the date on which it is fully\nexecuted, as indicated by signatures below, by and among First Financial Northwest, Inc. (the "Company"), the Stilwell Group (composed of\nStilwell Associates, L.P., Stilwell Partners, L.P., Stilwell Value Partners II, L.P., Stilwell Value Partners V, L.P., Stilwell Value Partners VI, L.P.,\nStilwell Value Partners VII, L.P., Stilwell Value LLC, Stilwell Associates Insurance Fund of The S.A.L .I . Multi-Series Fund L.P., Stilwell Advisers\nLLC, and Joseph Stilwell, an individual, and their employees and representatives), and Spencer L. Schneider, a director nominee of the Stilwell\nGroup ("Schneider").\nWHEREAS, the Company has agreed to place Schneider on its board of directors, subject to approval by interested state and\nfederal regulatory agencies;\nWHEREAS, the Company, the Stilwell Group and Schneider have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, the parties hereto mutually agree as follows:\n1.\nIn connection with Schneider serving on the Company's board, Schneider and other Company employees, directors, and\nagents may divulge nonpublic information concerning the Company and its subsidiaries to the Stilwell Group and such information may be shared\namong the Stilwell Group's employees and agents who have a need to know such information. The Stilwell Group expressly agrees to maintain all\nnonpublic information concerning the Company and its subsidiaries in confidence. The Stilwell Group expressly acknowledges that federal and\nstate securities laws may prohibit a person from purchasing or selling securities of a company, or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such other person is likely to purchase or sell such securities, while the first-\nmentioned person is in possession of material nonpublic information about such company. The Stilwell Group agrees to comply with the Company's\ninsider trading and disclosure policies, as in effect from time to time, to the same extent as if it were a director of the Company. To the extent the\nnonpublic information concerning the Company and its subsidiaries received by the Stilwell Group is material, this Agreement is intended to satisfy\nthe confidentiality agreement exclusion of Regulation FD of the Securities and Exchange Commission (the "SEC") set forth in Section 243.100(b)\n(2)(ii) of Regulation FD.\n2.\nEach of the Stilwell Group and Schneider represents and warrants to the Company that this Agreement has been duly and\nvalidly authorized (in the case of the entity members of the Stilwell Group), executed and delivered by them, and is a valid and binding agreement\nenforceable against them in accordance with its terms.\n3.\nSchneider hereby further represents and warrants to the Company that: (a) he satisfies all of the qualifications to be a\ndirector of the Company as set forth in Article III, Section 4 of the Company's bylaws and any additional applicable qualifications under the laws of\nthe State of Washington or under the regulations of any bank regulatory authority, and that he is not in any way precluded from serving as a director\nby order or other action of any court, regulatory or other governmental authority; and (b) no event has occurred with respect to Schneider that would\nrequire disclosure in a document filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange\nAct of 1934, as amended, under Item 401(f) of SEC Regulation S-K.\n4.\nThe Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic\ninformation of the Company and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this\nAgreement and that, in addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable\nrelief as a remedy for such breach, and in conjunction therewith the Company shall not be required to post any bond.\n5.\nThis Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and\nsupersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not\nreferred to herein.\n6.\nThis Agreement shall be governed by, and construed in accordance with, the laws of the State of Washington, without\nregard to choice of law principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby\nirrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in the State of Washington to resolve any dispute arising from\nthis Agreement and waives any defense of inconvenient or improper forum.\n7.\nThe terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or\nportion thereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8.\nAll representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this\nAgreement.\n9.\nThis Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a\nwritten agreement executed by all of the parties hereto.\n10.\nThis Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall\nconstitute one and the same agreement.\n16\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as\nof the day and year first above written.\nTHE STILWELL GROUP\nFIRST FINANCIAL NORTHWEST, INC.\n/s/Joseph Stilwell\n/s/Victor Karpiak\nBy:\nDate\nJoseph Stilwell\n12-20, 2012\nBy:\nDate\nVictor Karpiak, President, Chief Executive Officer\nand Chairman of the Board\nDecember 19, 2012\nSPENCER L. SCHNEIDER\n/s/Spencer L. Schneider\nDate: 12/20, 2012\n17
+2523f0aba286a96452c8470227e10164.pdf	effective_date jurisdiction party term	EX-4.K 4 y98596exv4wk.htm CONFIDENTIALITY AGREEMENT\nExhibit 4(k)\nCONFIDENTIALITY AGREEMENT\nBETWEEN:\nLIHIR MANAGEMENT COMPANY LIMITED, ARBN 059 005 766, as manager of LIHIR GOLD LIMITED ARBN\n069 803 998, and LIHIR GOLD LIMITED in its own right, both of 7th Floor, Pacific Place, Cnr, Champion Parade &\nMusgrave Street, Port Moresby, Papua New Guinea (“Lihir”)\nAND:\nTECHNOLOGICAL SERVICES PTY LIMITED, A.B .N. 12 002 183557 known as Rio Tinto technical Services of 55\nCollins Street, Melbourne, VIC 3001, Australia (“RTTS”)\nLihir and RTTS have entered into and will continue discussions concerning, and have undertaken and will continue to undertake activities in\nfurtherance of, the Express Purpose. In the course of these discussions and activities, Lihir has and will continue to make Confidential\nInformation available to RTTS and further Confidential Information will be generated by both parties. As a condition to these discussions and in\nconsideration for Lihir disclosing the Confidential Information to and paying the relevant projects fees, RTTS is required to enter into this\nAgreement on the following terms:\n1. “CONFIDENTIAL INFORMATION” all confidential and proprietary information concerning existing and future technology and technical\ninformation, intellectual property, ideas, know how, trade secrets, mining, processing and commercial strategies, financial and contractual\ninformation, employees, consultants, training and other programs, concepts, concepts plans and business of Lihir which is or has been\ndisclosed to RTTS in connection with the Express Purpose, or is generated by both parties or either of them in association with or furtherance\nof this Express Purpose. It includes the existence of any project referred to in the Express Purpose and the engagement of RTTS for it. It does\nnot include information, which RTTS can provide:\n1.1 either is or becomes available to the public other than as a result of disclosure by RTTS; or\n1.2 is lawfully available to RTTS on a non-confidential basis from a third party entitled to make disclosure.\n2. “EXPRESS PURPOSE” means any project for which RTTS is engaged by Lihir from time to time, including in particular but without\nlimitation the project to develop an order-of- magnitude study defining the viability of identified processing methods for the sub- economic\nresource.\n3. “INTELLECTUAL PROPERTY RIGHTS” means the rights comprised in any patent, copyright, design or trademark whether at common law\nor by statute, rights to apply for registration under a statute in respect of those or like rights and rights to protect trade secrets, know- how,\ngoodwill or confidential information.\n4. “REPRESENTATIVES” means any director, officer, employee, contractor, or adviser of RTTS to whom the Confidential Information is or has\nbeen disclosed.\n5. INTERPRETATION. A reference to:\n5.1 Confidential Information includes but is not limited to any verbal communication, documents, data, records, drawings, graphs, formulae,\nsamples, electronic data and any other means by which the Confidential Information may be conveyed, stored or reproduced; and\n5.2 any thing (including but not limited to any right) includes a part of that thing.\n6. CONFIDENTIALITY OBLIGATIONS. RTTS agrees that unless specifically and previously authorised by Lihir in writing it shall and it shall\nensure that its Representatives (who shall be limited to only those who must strictly have access to the Confidential Information for the\npurpose of the Express Purpose) shall:\n13\n6.1 not disclose, or allow anyone else to disclose, any Confidential Information to any other person;\n6.2 not make use of any Confidential Information for any purpose other than for the Express Purpose; and\n6.3 not apply for, or directly or indirectly assist any other person to apply for any Intellectual Property Rights or any other proprietary right\nin respect of any invention, process or design that is based on or utilises the Confidential Information;\n6.4 keep the Confidential Information secure and protect it from unauthorized use, reproduction, access and damage or destruction; and\n6.5 not copy or reproduce the Confidential Information other than as strictly necessary in furtherance of the Express Purpose.\n7. RETURN OF CONFIDENTIAL INFORMATION. Unless otherwise agreed in writing, on the termination of this Agreement or upon written\nnotice by Lihir, all Confidential Information whether in hard copy or electronic form will be returned to Lihir within thirty (30) days of the\ndate of such termination or notice.\n8. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS. Nothing in this Agreement nor any disclosure of information by Lihir before or\nafter its execution shall operate to confer any Intellectual Property Rights on RTTS.\n9. OTHER TERMS. RTTS acknowledge and agrees:\n9.1 that any provision in this Agreement found to be invalid or unenforceable shall not affect any other provision in this Agreement;\n9.2 that Lihir’s failure to insist on strict performance of any provision of this Agreement shall not be deemed a waiver of any subsequent\nbreach of such provision;\n9.3 that this Agreement shall not be construed to exclude the operation of any principle of law or equity intended to protect and preserve the\nconfidentiality of the Confidential Information; and\n9.4 that this Agreement shall be binding on each party’s successors and permitted assigns.\n10. GOVERNING LAW. This Agreement and the parties’ rights and obligations under it shall be governed by and interpreted in accordance\nwith the laws of the State of Victoria.\n11. AGREEMENT TERM. This Agreement shall continue in force for a term of ten (10) years from its date.\nSIGNED as an Agreement.\nSIGNED for and on behalf of\n)\nLIHIR MANAGEMENT COMPANY\n)\nLIMITED\n)\nby and duly authorised officer in\n)\nthe presence of:\n)\n/s/ N. Swan, M.D.\nSignature\n/s/\nN. Swan, M.D.\nWitness\nName & Title\n31/5/04\nDate\n14\nSIGNED for and on behalf of\n)\nLIHIR GOLD LIMITED\n)\nby and duly authorised\n)\nofficer in the presence of:\n)\n/s/ N. Swan, MD.\nSignature\n/s/\nN. Swan, MD.\nWitness\nName & Title\n31/5/04\nDate\nSIGNED for and on behalf of\n)\nTECHNOLOGICAL SERVICES PTY LTD\n)\nby and duly authorised\n)\nofficer in the presence of:\n)\n/s/\nSignature\n/s/\nGeneral Manager\nWitness\nName & Title\n26 May 2004\nDate\n15	EX-4.K 4 y98596exv4wk.htm CONFIDENTIALITY AGREEMENT\nExhibit 4(k)\nCONFIDENTIALITY AGREEMENT\nBETWEEN: LIHIR MANAGEMENT COMPANY LIMITED, ARBN 059 005 766, as manager of LIHIR GOLD LIMITED ARBN 069 803 998, and LIHIR GOLD LIMITED in its own right, both of 7th Floor, Pacific Place, Cnr, Champion Parade &\nMusgrave Street, Port Moresby, Papua New Guinea (“Lihir”)\nAND: TECHNOLOGICAL SERVICES PTY LIMITED, A.B.N. 12 002 183557 known as Rio Tinto technical Services of 55 Collins Street, Melbourne, VIC 3001, Australia (“RTTS”)\nLihir and RTTS have entered into and will continue discussions concerning, and have undertaken and will continue to undertake activities in furtherance of, the Express Purpose. In the course of these discussions and activities, Lihir has and will continue to make Confidential Information available to RTTS and further Confidential Information will be generated by both parties. As a condition to these discussions and in consideration for Lihir disclosing the Confidential Information to and paying the relevant projects fees, RTTS is required to enter into this Agreement on the following terms: 1. “CONFIDENTIAL INFORMATION?” all confidential and proprietary information concerning existing and future technology and technical\ninformation, intellectual property, ideas, know how, trade secrets, mining, processing and commercial strategies, financial and contractual\ninformation, employees, consultants, training and other programs, concepts, concepts plans and business of Lihir which is or has been\ndisclosed to RTTS in connection with the Express Purpose, or is generated by both parties or either of them in association with or furtherance\nof this Express Purpose. It includes the existence of any project referred to in the Express Purpose and the engagement of RTTS for it. It does\nnot include information, which RTTS can provide:\n1.1 either is or becomes available to the public other than as a result of disclosure by RTTS; or\n1.2 is lawfully available to RTTS on a non-confidential basis from a third party entitled to make disclosure.\n“EXPRESS PURPOSE” means any project for which RTTS is engaged by Lihir from time to time, including in particular but without\nlimitation the project to develop an order-of- magnitude study defining the viability of identified processing methods for the sub- economic\nresource.\n“INTELLECTUAL PROPERTY RIGHTS” means the rights comprised in any patent, copyright, design or trademark whether at common law\nor by statute, rights to apply for registration under a statute in respect of those or like rights and rights to protect trade secrets, know- how,\ngoodwill or confidential information.\n“REPRESENTATIVES” means any director, officer, employee, contractor, or adviser of RTTS to whom the Confidential Information is or has\nbeen disclosed.\nINTERPRETATION. A reference to:\n5.1 Confidential Information includes but is not limited to any verbal communication, documents, data, records, drawings, graphs, formulae,\nsamples, electronic data and any other means by which the Confidential Information may be conveyed, stored or reproduced; and\n5.2 any thing (including but not limited to any right) includes a part of that thing.\nCONFIDENTIALITY OBLIGATIONS. RTTS agrees that unless specifically and previously authorised by Lihir in writing it shall and it shall\nensure that its Representatives (who shall be limited to only those who must strictly have access to the Confidential Information for the\npurpose of the Express Purpose) shall:\n13\n6.1 not disclose, or allow anyone else to disclose, any Confidential Information to any other person;\n6.2 not make use of any Confidential Information for any purpose other than for the Express Purpose; and\n6.3 not apply for, or directly or indirectly assist any other person to apply for any Intellectual Property Rights or any other proprietary right\nin respect of any invention, process or design that is based on or utilises the Confidential Information;\n6.4 keep the Confidential Information secure and protect it from unauthorized use, reproduction, access and damage or destruction; and\n6.5 not copy or reproduce the Confidential Information other than as strictly necessary in furtherance of the Express Purpose.\n7. RETURN OF CONFIDENTIAL INFORMATION. Unless otherwise agreed in writing, on the termination of this Agreement or upon written\nnotice by Lihir, all Confidential Information whether in hard copy or electronic form will be returned to Lihir within thirty (30) days of the\ndate of such termination or notice.\n8. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS. Nothing in this Agreement nor any disclosure of information by Lihir before or\nafter its execution shall operate to confer any Intellectual Property Rights on RTTS.\n9. OTHER TERMS. RTTS acknowledge and agrees:\n9.1 that any provision in this Agreement found to be invalid or unenforceable shall not affect any other provision in this Agreement;\n9.2 that Lihir’s failure to insist on strict performance of any provision of this Agreement shall not be deemed a waiver of any subsequent\nbreach of such provision;\n9.3 that this Agreement shall not be construed to exclude the operation of any principle of law or equity intended to protect and preserve the\nconfidentiality of the Confidential Information; and\n9.4 that this Agreement shall be binding on each party’s successors and permitted assigns.\n10. GOVERNING LAW. This Agreement and the parties’ rights and obligations under it shall be governed by and interpreted in accordance\nwith the laws of the State of Victoria.\n11. AGREEMENT TERM. This Agreement shall continue in force for a term of ten (10) years from its date.\nSIGNED as an Agreement.\nSIGNED for and on behalf of )\nLIHIR MANAGEMENT COMPANY )\nLIMITED )\nby and duly authorised officer in )\nthe presence of: )\n/s/ N. Swan, M.D.\nSignature\n/s/ N. Swan, M.D.\nWitness Name & Title\n31/5/04\nDate\n14\nSIGNED for and on behalf of\nLIHIR GOLD LIMITED\nby and duly authorised\nofficer in the presence of:\nN N N\n/s/\nWitness\nSIGNED for and on behalf of\nTECHNOLOGICAL SERVICES PTY LTD\nby and duly authorised\nofficer in the presence of:\n/s/\nWitness\nN N N\n/s/ N. Swan, MD.\nSignature\nN. Swan, MD.\nName & Title\n31/5/04\nDate\n/s/\nSignature\nGeneral Manager\nName & Title\n26 May 2004\nDate\n15	EX-4.K 4 y98596exv4wk.htm CONFIDENTIALITY AGREEMENT\nExhibit 4(k)\nCONFIDENTIALITY AGREEMENT\nBETWEEN:\nLIHIR MANAGEMENT COMPANY LIMITED, ARBN 059 005 766, as manager of LIHIR GOLD LIMITED ARBN\n069 803 998, and LIHIR GOLD LIMITED in its own right, both of 7th Floor, Pacific Place, Cnr, Champion Parade &\nMusgrave Street, Port Moresby, Papua New Guinea ("Lihir")\nAND:\nTECHNOLOGICAL SERVICES PTY LIMITED, A.B.N. 12 002 183557 known as Rio Tinto technical Services of 55\nCollins Street, Melbourne, VIC 3001, Australia ("RTTS")\nLihir and RTTS have entered into and will continue discussions concerning, and have undertaken and will continue to undertake activities in\nfurtherance of, the Express Purpose. In the course of these discussions and activities, Lihir has and will continue to make Confidential\nInformation available to RTTS and further Confidential Information will be generated by both parties. As a condition to these discussions and in\nconsideration for Lihir disclosing the Confidentia Information to and paying the relevant projects fees, RTTS is required to enter into this\nAgreement on the following terms:\n1. "CONFIDENTIAL INFORMATION" all confidential and proprietary information concerning existing and future technology and technical\ninformation, intellectual property, ideas, know how, trade secrets, mining, processing and commercial strategies, financial and contractual\ninformation, employees, consultants, training and other programs, concepts, concepts plans and business of Lihir which is or has been\ndisclosed to RTTS in connection with the Express Purpose, or is generated by both parties or either of them in association with or furtherance\nof this Express Purpose. It includes the existence of any project referred to in the Express Purpose and the engagement of RTTS for it. It does\nnot include information, which RTTS can provide:\n1.1 either is or becomes available to the public other than as a result of disclosure by RTTS; or\n1.2 is lawfully available to RTTS on a non-confidential basis from a third party entitled to make disclosure.\n2. "EXPRESS PURPOSE" means any project for which RTTS is engaged by Lihir from time to time, including in particular but without\nlimitation the project to develop an order-of- -of- magnitud study defining the viability of identified processing methods for the sub- economic\nresource.\n3. "INTELLECTUAL PROPERTY RIGHTS" means the rights comprised in any patent, copyright, design or trademark whether at common law\nor by statute, rights to apply for registration under a statute in respect of those or like rights and rights to protect trade secrets, know- how,\ngoodwill or confidential information.\n4. "REPRESENTATIVES" means any director, officer, employee, contractor, or adviser of RTTS to whom the Confidentia Information is or has\nbeen disclosed.\n5. INTERPRETATION. A reference to:\n5.1 Confidential Information includes but is not limited to any verbal communication, documents, data, records, drawings, graphs, formulae,\nsamples, electronic data and any other means by which the Confidential Information may be conveyed, stored or reproduced; and\n5.2 any thing (including but not limited to any right) includes a part of that thing.\n6. CONFIDENTIALITY OBLIGATIONS. RTTS agrees that unless specifically and previously authorised by Lihir in writing it shall and it shall\nensure that its Representatives (who shall be limited to only those who must strictly have access to the Confidential Information for the\npurpose of the Express Purpose) shall:\n13\n6.1 not disclose, or allow anyone else to disclose, any Confidential Information to any other person;\n6.2 not make use of any Confidential Information for any purpose other than for the Express Purpose; and\n6.3\nnot apply for, or directly or indirectly assist any other person to apply for any Intellectual Property Rights or any other proprietary right\nin respect of any invention, process or design that is based on or utilises the Confidential Information;\n6.4 keep the Confidential Information secure and protect it from unauthorized use, reproduction, access and damage or destruction; and\n6.5 not copy or reproduce the Confidential Information other than as strictly necessary in furtherance of the Express Purpose.\n7. RETURN OF CONFIDENTIAL INFORMATION. Unless otherwise agreed in writing, on the termination of this Agreement or upon written\nnotice by Lihir, all Confidential Information whether in hard copy or electronic form will be returned to Lihir within thirty (30) days of the\ndate of such termination or notice.\n8. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS. Nothing in this Agreement nor any disclosure of information by Lihir before or\nafter its execution shall operate to confer any Intellectual Property Rights on RTTS.\n9. OTHER TERMS. RTTS acknowledge and agrees:\n9.1 that any provision in this Agreement found to be invalid or unenforceable shall not affect any other provision in this Agreement;\n9.2 that Lihir's failure to insist on strict performance of any provision of this Agreement shall not be deemed a waiver of any subsequent\nbreach of such provision;\n9.3 that this Agreement shall not be construed to exclude the operation of any principle of law or equity intended to protect and preserve the\nconfidentiality of the Confidential Information; and\n9.4 that this Agreement shall be binding on each party's successors and permitted assigns.\n10. GOVERNING LAW. This Agreement and the parties' rights and obligations under it shall be governed by and interpreted in accordance\nwith the laws of the State of Victoria.\n11. AGREEMENT TERM. This Agreement shall continue in force for a term of ten (10) years from its date.\nSIGNED as an Agreement.\nSIGNED for and on behalf of\n)\nLIHIR MANAGEMENT COMPANY\nLIMITED\nby and duly authorised officer in\n)\nthe presence of:\n)\n/s/ N. Swan, M.D.\nSignature\n/s/\nN. Swan, M.D.\nWitness\nName & Title\n31/5/04\nDate\n14\nSIGNED for and on behalf of\n)\nLIHIR GOLD LIMITED\n)\nby and duly authorised\n)\nofficer in the presence of:\n)\n/S/N. Swan, MD.\nSignature\n/s/\nN. Swan, MD.\nWitness\nName & Title\n31/5/04\nDate\nSIGNED for and on behalf of\n)\nTECHNOLOGICAL SERVICES PTY LTD\nby and duly authorised\n)\nofficer in the presence of:\n)\n/s/\nSignature\n/s/\nGeneral Manager\nWitness\nName & Title\n26 May 2004\nDate\n15	EX-4.K 4 y98596exv4wk.htm CONFIDENTIALITY AGREEMENT\nExhibit 4(k)\nCONFIDENTIALITY AGREEMENT\nBETWEEN:\nLIHIR MANAGEMENT COMPANY LIMITED, ARBN 059 005 766, as manager of LIHIR GOLD LIMITED ARBN\n069 803 998, and LIHIR GOLD LIMITED in its own right, both of 7th Floor, Pacific Place, Cnr, Champion Parade &\nMusgrave Street, Port Moresby, Papua New Guinea (“Lihir”)\nAND:\nTECHNOLOGICAL SERVICES PTY LIMITED, A.B .N. 12 002 183557 known as Rio Tinto technical Services of 55\nCollins Street, Melbourne, VIC 3001, Australia (“RTTS”)\nLihir and RTTS have entered into and will continue discussions concerning, and have undertaken and will continue to undertake activities in\nfurtherance of, the Express Purpose. In the course of these discussions and activities, Lihir has and will continue to make Confidential\nInformation available to RTTS and further Confidential Information will be generated by both parties. As a condition to these discussions and in\nconsideration for Lihir disclosing the Confidential Information to and paying the relevant projects fees, RTTS is required to enter into this\nAgreement on the following terms:\n1. “CONFIDENTIAL INFORMATION” all confidential and proprietary information concerning existing and future technology and technical\ninformation, intellectual property, ideas, know how, trade secrets, mining, processing and commercial strategies, financial and contractual\ninformation, employees, consultants, training and other programs, concepts, concepts plans and business of Lihir which is or has been\ndisclosed to RTTS in connection with the Express Purpose, or is generated by both parties or either of them in association with or furtherance\nof this Express Purpose. It includes the existence of any project referred to in the Express Purpose and the engagement of RTTS for it. It does\nnot include information, which RTTS can provide:\n1.1 either is or becomes available to the public other than as a result of disclosure by RTTS; or\n1.2 is lawfully available to RTTS on a non-confidential basis from a third party entitled to make disclosure.\n2. “EXPRESS PURPOSE” means any project for which RTTS is engaged by Lihir from time to time, including in particular but without\nlimitation the project to develop an order-of- magnitude study defining the viability of identified processing methods for the sub- economic\nresource.\n3. “INTELLECTUAL PROPERTY RIGHTS” means the rights comprised in any patent, copyright, design or trademark whether at common law\nor by statute, rights to apply for registration under a statute in respect of those or like rights and rights to protect trade secrets, know- how,\ngoodwill or confidential information.\n4. “REPRESENTATIVES” means any director, officer, employee, contractor, or adviser of RTTS to whom the Confidential Information is or has\nbeen disclosed.\n5. INTERPRETATION. A reference to:\n5.1 Confidential Information includes but is not limited to any verbal communication, documents, data, records, drawings, graphs, formulae,\nsamples, electronic data and any other means by which the Confidential Information may be conveyed, stored or reproduced; and\n5.2 any thing (including but not limited to any right) includes a part of that thing.\n6. CONFIDENTIALITY OBLIGATIONS. RTTS agrees that unless specifically and previously authorised by Lihir in writing it shall and it shall\nensure that its Representatives (who shall be limited to only those who must strictly have access to the Confidential Information for the\npurpose of the Express Purpose) shall:\n13\n6.1 not disclose, or allow anyone else to disclose, any Confidential Information to any other person;\n6.2 not make use of any Confidential Information for any purpose other than for the Express Purpose; and\n6.3 not apply for, or directly or indirectly assist any other person to apply for any Intellectual Property Rights or any other proprietary right\nin respect of any invention, process or design that is based on or utilises the Confidential Information;\n6.4 keep the Confidential Information secure and protect it from unauthorized use, reproduction, access and damage or destruction; and\n6.5 not copy or reproduce the Confidential Information other than as strictly necessary in furtherance of the Express Purpose.\n7. RETURN OF CONFIDENTIAL INFORMATION. Unless otherwise agreed in writing, on the termination of this Agreement or upon written\nnotice by Lihir, all Confidential Information whether in hard copy or electronic form will be returned to Lihir within thirty (30) days of the\ndate of such termination or notice.\n8. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS. Nothing in this Agreement nor any disclosure of information by Lihir before or\nafter its execution shall operate to confer any Intellectual Property Rights on RTTS.\n9. OTHER TERMS. RTTS acknowledge and agrees:\n9.1 that any provision in this Agreement found to be invalid or unenforceable shall not affect any other provision in this Agreement;\n9.2 that Lihir’s failure to insist on strict performance of any provision of this Agreement shall not be deemed a waiver of any subsequent\nbreach of such provision;\n9.3 that this Agreement shall not be construed to exclude the operation of any principle of law or equity intended to protect and preserve the\nconfidentiality of the Confidential Information; and\n9.4 that this Agreement shall be binding on each party’s successors and permitted assigns.\n10. GOVERNING LAW. This Agreement and the parties’ rights and obligations under it shall be governed by and interpreted in accordance\nwith the laws of the State of Victoria.\n11. AGREEMENT TERM. This Agreement shall continue in force for a term of ten (10) years from its date.\nSIGNED as an Agreement.\nSIGNED for and on behalf of\n)\nLIHIR MANAGEMENT COMPANY\n)\nLIMITED\n)\nby and duly authorised officer in\n)\nthe presence of:\n)\n/s/ N. Swan, M.D.\nSignature\n/s/\nN. Swan, M.D.\nWitness\nName & Title\n31/5/04\nDate\n14\nSIGNED for and on behalf of\n)\nLIHIR GOLD LIMITED\n)\nby and duly authorised\n)\nofficer in the presence of:\n)\n/s/ N. Swan, MD.\nSignature\n/s/\nN. Swan, MD.\nWitness\nName & Title\n31/5/04\nDate\nSIGNED for and on behalf of\n)\nTECHNOLOGICAL SERVICES PTY LTD\n)\nby and duly authorised\n)\nofficer in the presence of:\n)\n/s/\nSignature\n/s/\nGeneral Manager\nWitness\nName & Title\n26 May 2004\nDate\n15
+252b9361b33e260436d147681f7b7102.pdf	effective_date jurisdiction party term	EX-10.4 5 dex104.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nExhibit 10.4\nLOGO\nNon-Competition and Confidentiality Agreement\nThis Agreement is made and entered into on or about March 30, 2009 (exact date to be determined), between SRI Surgical (referred to as “SRI”) and\nWilliam Braun (referred to as “Employee”).\nSRI and Employee enter into this Agreement with the following understandings:\nA. SRI is engaged in the business of supplying hospitals and surgery centers with reusable surgical apparel, linens, stainless steel basins, surgical\ninstruments, disposable packs as well as providing on-site customer processing services and consultation.\nB. SRI maintains confidential and trade secret information which is critical to the operation and competitiveness of its business. This information\nincludes, but is not limited to, information about SRI’s customers and customer lists, files containing accounting data, engineering data,\ninventions, processes, formulas, drawings, blueprints, costs, research, marketing information, production information, sales, sales plans and\nmethods, supply sources, pricing, quotations, employee compensation and other confidential information, data banks and files, and computer\naided design and drafting programs. This trade secret and confidential information is referred to in this Agreement as “Confidential\nInformation.” SRI’s customers include persons, firms, corporation and other entities that lease/purchase the goods and services sold or\nprovided by SRI, have leased/purchased such goods and services in the past, or are potential lessors/purchasers of such goods and services in\nthe future.\nC. SRI will invest substantial time and resources in the development, training and support of the Employee.\nD. SRI will necessarily, in the course of the Employee’s employment, provide the employee with access to SRI’s Confidential Information to\nenable the Employee to perform the duties of his or her employment.\nE. The Employee understands and agrees that SRI has a reasonable expectation that the Employee will not compete against SRI or work for any\nbusiness competing against SRI during Employee’s employment with SRI for a reasonable period of time after the termination of Employee’s\nemployment with SRI, and Employee will not disclose or make use of any of SRI’s confidential information (except as authorized by SRI) at\nany time, because Employee would gain a competitive advantage through both Employee’s employment with SRI and through Employee’s\naccess to SRI’s Confidential Information.\nF. SRI and the Employee agree that substantial and irreparable loss and damage will be suffered by SRI in the event that the Employee breaches\nthis Agreement.\nSRI and Employee agree as follows:\n1. Employment: SRI employs the Employee, and the Employee accepts employment with SRI under the terms and at the compensation\nmutually agreed upon by the parties. These terms may be changed by the parties from time to time. The Employee shall devote Employee’s entire\nworking time and complete efforts to SRI’s business. SRI may terminate the Employee’s employment at will or in accordance with applicable state\nlaw and Employee may resign at will.\nLOGO\nNon-Competition and Confidentiality Agreement (cont’d)\n2. Covenants:\n(a) Non-Competition: Employee shall not during employment with SRI and for eighteen (18) months after Employee’s termination of\nemployment or resignation compete with SRI. To “compete” means (i) to directly or indirectly establish or aid in establishing, or have effective\ncontrol over any business competitive with SRI’s business; or (ii) to become associated with or render services as an employee, independent\ncontractor, consultant or otherwise, to any person, firm, corporation or other entity engaged in any business competitive with SRI’s business. Mere\nownership of less than one percent (1%) of the outstanding common stock of a corporation competitive with SRI’s business whose stock is traded on\nany major United States stock exchange or on the over-the-counter market shall not be considered as a violation of this Agreement. For purpose of\nthis section 2(a), “any business competitive with SRI’s business” shall mean a business or hospital sterile processing center which competes with the\nfacility or office of SRI by which the Employee was employed.\n(b) Non-Solicitation: At all times during Employee’s employment and after Employee’s termination of employment or resignation,\nEmployee shall keep all information about SRI’s customers confidential and secret and shall not disclose or use that information in any manner,\neither directly or indirectly, orally or in writing or otherwise, to any person, firm, corporation, or other entity. Furthermore, during Employee’s\nemployment and for eighteen (18) months after the termination of Employee’s employment or Employee’s resignation, the Employee shall not solicit\nthe trade of any of the persons, firms, corporations or other entities who are SRI’s customers, for or on behalf of Employee (if Employee is\ncompeting with SRI) or any person, firm, corporation or other entity that is in competition for SRI’s business. For purpose of this section 2(b), “any\nbusiness competitive with SRI’s business” shall mean a business or hospital sterile processing center which competes with the facility or office of\nSRI by which the Employee was employed.\n(c) Non-Inducement: During Employee’s employment and for eighteen (18) months after the termination of Employee’s employment or\nEmployee’s resignation, the Employee shall not, directly or indirectly, induce or attempt to induce any present or former employee of SRI to gain or\nseek employment with any person or business in competition with SRI.\n(d) Non-Disclosure: At all times during Employee’s employment and after the termination of Employee’s employment or Employee’s\nresignation, Employee shall protect and guard SRI’s Confidential Information. Employee shall not at any time, directly or indirectly, disclose to any\nperson, firm, corporation or other entity, or use for Employee’s own purposes any Confidential Information, regardless of how it is acquired, except\nas Employee’s use of the Confidential Information may be authorized by SRI.\n(e) Reporting to the Company: Employee agrees to render to SRI such reports of Employee’s business activities for SRI during\nEmployee’s employment as SRI may request. Employee shall promptly communicate and disclose to SRI all information, observations and data\nobtained by Employee in the course of Employee’s employment. Upon termination of employment, Employee shall promptly deliver to SRI, without\nretaining any copies, all memoranda, diaries, notes, records, sketches, plans, specifications, or other documents or things containing Confidential\nInformation developed or obtained by Employee.\n(f) Inventions and Discoveries: Any and all inventions and discoveries, whether or not patentable, which Employee may conceive or\nmake, either alone or in conjunction with others, during Employee’s employment and relating to SRI’s business shall be the exclusive property of\nSRI. Furthermore, Employee shall, upon the request of SRI and without further compensation or consideration, but at the expense of SRI, promptly\nexecute and assign any and all applications, assignments and other instruments which SRI shall deem necessary in order to apply for and obtain\nletters patent of the United States and foreign countries for those inventions and discoveries, and in order to assign and convey to SRI or its nominee\nthe sole and exclusive right, title and interest in and to those inventions, discoveries or any applications or patents upon them.\nLOGO\nNon-Competition and Confidentiality Agreement (cont’d)\n3. Non-Disparagement: Employee agrees not to make any disparaging statements about SRI or its officers, agents or employees during\nEmployee’s employment and after the termination of Employee’s employment or Employee’s resignation.\n4. Minimum Restrictions Necessary; Severability: If a court of competent jurisdiction determines that any of the provisions of this Agreement\nare unenforceable for any reason, each such provision shall be deemed to be modified in a manner to render it enforceable and each provision, as\nmodified, shall then be fully enforceable as though set forth in this Agreement. Any such modification shall not affect the other provisions or clauses\nof this Agreement in any respect. The invalidity or unenforceability of any provision or clause of this Agreement shall not affect the continued\nvalidity or enforceability of any other provision or clause in this Agreement, and this Agreement shall be construed in all respects as if any invalid or\nunenforceable provision or clause was omitted.\n5. Company’s Remedies: SRI and Employee agree that the services to be rendered by Employee are special, unique and of an extraordinary\ncharacter. Employee hereby acknowledges that: (i) the restrictions contained herein are reasonable and necessary in order to protect SRI’s legitimate\nbusiness interests; (ii) any breach or violation thereof would result in irreparable injury to SRI; and (iii) the enforcement of a remedy by way of\ninjunction would not prevent Employee from earning a living. Employee, therefore, acknowledges and agrees that, in the event that\nEmployee violates or breaches this Agreement, SRI is authorized and entitled to obtain, from any court of competent jurisdiction: (i) preliminary and\npermanent injunctive relief; (ii) an equitable accounting of all profits or benefits arising out of the violation or breach; (iii) direct, incidental and\nconsequential damages to SRI arising from the violation or breach; and (iv) SRI’s attorneys’ fees and costs, all of which rights and remedies shall be\ncumulative and in addition to any other rights and remedies to which SRI may be entitled.\n6. Representation and Warranty: Employee represents and warrants to SRI that Employee has not assumed any obligations or entered into any\narrangements or contracts inconsistent or in conflict with those set out in this Agreement.\n7. Modification and Waiver: No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless\ncontained in writing specifically referring to this Agreement. The failure by SRI at any time to enforce any of the provisions of this Agreement, or to\nrequire performance by Employee of any of the provisions of this Agreement, shall in no way be construed to be a waiver of those provisions and\nshall not affect either the validity of any part of this Agreement or the right of SRI to enforce each and every provision of this Agreement.\n8. Binding Effect: This Agreement shall be binding upon the inure to the benefit of SRI and any successor or assignee of SRI, including any\ncorporation or other entity which may acquire all or substantially all of the assets of SRI, or into which SRI may be merged or consolidated. Any\nsuch successor shall be deemed substituted for SRI under the provisions of this Agreement. This Agreement shall be binding upon and inure to the\nbenefit of Employee and Employee’s heirs, legal representatives and assigns, except that the Employee’s obligations to perform future services or\nemployee’s rights to receive payment for those services are hereby expressly declared to be non-assignable and nontransferable.\n9. Construction: Section headings are included in this Agreement solely for the convenience of reference and shall not be construed as a part of\nany section or modifying its contents.\nLOGO\nNon-Competition and Confidentiality Agreement (cont’d)\n10. Governing Law and Jurisdiction: This Agreement shall be governed by and construed under the laws of the State of Florida. SRI and\nEmployee agree that this Agreement may be enforced in any court of competent jurisdiction in the State of Florida, which is SRI’s principal place of\nbusiness, or in the state where Employee is employed or can be found, at the sole election of SRI.\nEMPLOYEE\nSRI Surgical\nWilliam J. Braun\n/s/ Ray Reilly\nPrint Name\nRay Reilly\nVice President, Human Resources & Client Relations\n/s/ William J. Braun\nSignature	EX-10.4 5 dex104.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT Exhibit 10.4\n».LOGO Non-Competition and Confidentiality Agreement\nThis Agreement is made and entered into on or about March 30, 2009 (exact date to be determined), between SRI Surgical (referred to as “SRI”) and William Braun (referred to as “Employee”). SRI and Employee enter into this Agreement with the following understandings: A. B. SRI is engaged in the business of supplying hospitals and surgery centers with reusable surgical apparel, linens, stainless steel basins, surgical\ninstruments, disposable packs as well as providing on-site customer processing services and consultation.\nSRI maintains confidential and trade secret information which is critical to the operation and competitiveness of its business. This information\nincludes, but is not limited to, information about SRI’s customers and customer lists, files containing accounting data, engineering data,\ninventions, processes, formulas, drawings, blueprints, costs, research, marketing information, production information, sales, sales plans and\nmethods, supply sources, pricing, quotations, employee compensation and other confidential information, data banks and files, and computer\naided design and drafting programs. This trade secret and confidential information is referred to in this Agreement as “Confidential\nInformation.” SRI’s customers include persons, firms, corporation and other entities that lease/purchase the goods and services sold or\nprovided by SRI, have leased/purchased such goods and services in the past, or are potential lessors/purchasers of such goods and services in\nthe future.\nSRI will invest substantial time and resources in the development, training and support of the Employee.\nSRI will necessarily, in the course of the Employee’s employment, provide the employee with access to SRI’s Confidential Information to\nenable the Employee to perform the duties of his or her employment.\nThe Employee understands and agrees that SRI has a reasonable expectation that the Employee will not compete against SRI or work for any\nbusiness competing against SRI during Employee’s employment with SRI for a reasonable period of time after the termination of Employee’s\nemployment with SRI, and Employee will not disclose or make use of any of SRI’s confidential information (except as authorized by SRI) at\nany time, because Employee would gain a competitive advantage through both Employee’s employment with SRI and through Employee’s\naccess to SRI’s Confidential Information.\nSRI and the Employee agree that substantial and irreparable loss and damage will be suffered by SRI in the event that the Employee breaches\nthis Agreement.\nSRI and Employee agree as follows: 1. Employment: SRI employs the Employee, and the Employee accepts employment with SRI under the terms and at the compensation\nmutually agreed upon by the parties. These terms may be changed by the parties from time to time. The Employee shall devote Employee’s entire working time and complete efforts to SRI’s business. SRI may terminate the Employee’s employment at will or in accordance with applicable state law and Employee may resign at will.\f».LOGO\nNon-Competition and Confidentiality Agreement (cont’d)\n2. Covenants:\n(a) Non-Competition: Employee shall not during employment with SRI and for eighteen (18) months after Employee’s termination of\nemployment or resignation compete with SRI. To “compete” means (i) to directly or indirectly establish or aid in establishing, or have effective\ncontrol over any business competitive with SRI’s business; or (ii) to become associated with or render services as an employee, independent\ncontractor, consultant or otherwise, to any person, firm, corporation or other entity engaged in any business competitive with SRI’s business. Mere\nownership of less than one percent (1%) of the outstanding common stock of a corporation competitive with SRI’s business whose stock is traded on\nany major United States stock exchange or on the over-the-counter market shall not be considered as a violation of this Agreement. For purpose of\nthis section 2(a), “any business competitive with SRI’s business” shall mean a business or hospital sterile processing center which competes with the\nfacility or office of SRI by which the Employee was employed.\n \n(b) Non-Solicitation: At all times during Employee’s employment and after Employee’s termination of employment or resignation,\nEmployee shall keep all information about SRI’s customers confidential and secret and shall not disclose or use that information in any manner,\neither directly or indirectly, orally or in writing or otherwise, to any person, firm, corporation, or other entity. Furthermore, during Employee’s\nemployment and for eighteen (18) months after the termination of Employee’s employment or Employee’s resignation, the Employee shall not solicit\nthe trade of any of the persons, firms, corporations or other entities who are SRI’s customers, for or on behalf of Employee (if Employee is\ncompeting with SRI) or any person, firm, corporation or other entity that is in competition for SRI’s business. For purpose of this section 2(b), “any\nbusiness competitive with SRI’s business” shall mean a business or hospital sterile processing center which competes with the facility or office of\nSRI by which the Employee was employed.\n(c) Non-Inducement: During Employee’s employment and for eighteen (18) months after the termination of Employee’s employment or\nEmployee’s resignation, the Employee shall not, directly or indirectly, induce or attempt to induce any present or former employee of SRI to gain or\nseek employment with any person or business in competition with SRI.\n(d) Non-Disclosure: At all times during Employee’s employment and after the termination of Employee’s employment or Employee’s\nresignation, Employee shall protect and guard SRI’s Confidential Information. Employee shall not at any time, directly or indirectly, disclose to any\nperson, firm, corporation or other entity, or use for Employee’s own purposes any Confidential Information, regardless of how it is acquired, except\nas Employee’s use of the Confidential Information may be authorized by SRI.\n(e) Reporting to the Company: Employee agrees to render to SRI such reports of Employee’s business activities for SRI during\nEmployee’s employment as SRI may request. Employee shall promptly communicate and disclose to SRI all information, observations and data\nobtained by Employee in the course of Employee’s employment. Upon termination of employment, Employee shall promptly deliver to SRI, without\nretaining any copies, all memoranda, diaries, notes, records, sketches, plans, specifications, or other documents or things containing Confidential\nInformation developed or obtained by Employee.\n(f) Inventions and Discoveries: Any and all inventions and discoveries, whether or not patentable, which Employee may conceive or\nmake, either alone or in conjunction with others, during Employee’s employment and relating to SRI’s business shall be the exclusive property of\nSRI. Furthermore, Employee shall, upon the request of SRI and without further compensation or consideration, but at the expense of SRI, promptly\nexecute and assign any and all applications, assignments and other instruments which SRI shall deem necessary in order to apply for and obtain\nletters patent of the United States and foreign countries for those inventions and discoveries, and in order to assign and convey to SRI or its nominee\nthe sole and exclusive right, title and interest in and to those inventions, discoveries or any applications or patents upon them.\n».LOGO\nNon-Competition and Confidentiality Agreement (cont’d)\n3. Non-Disparagement: Employee agrees not to make any disparaging statements about SRI or its officers, agents or employees during\nEmployee’s employment and after the termination of Employee’s employment or Employee’s resignation.\n4. Minimum Restrictions Necessary;_Severability: If a court of competent jurisdiction determines that any of the provisions of this Agreement\nare unenforceable for any reason, each such provision shall be deemed to be modified in a manner to render it enforceable and each provision, as\nmodified, shall then be fully enforceable as though set forth in this Agreement. Any such modification shall not affect the other provisions or clauses\nof this Agreement in any respect. The invalidity or unenforceability of any provision or clause of this Agreement shall not affect the continued\nvalidity or enforceability of any other provision or clause in this Agreement, and this Agreement shall be construed in all respects as if any invalid or\nunenforceable provision or clause was omitted.\n5. Company’s Remedies: SRI and Employee agree that the services to be rendered by Employee are special, unique and of an extraordinary\ncharacter. Employee hereby acknowledges that: (i) the restrictions contained herein are reasonable and necessary in order to protect SRI’s legitimate\nbusiness interests; (ii) any breach or violation thereof would result in irreparable injury to SRI; and (iii) the enforcement of a remedy by way of\ninjunction would not prevent Employee from earning a living. Employee, therefore, acknowledges and agrees that, in the event that\nEmployee violates or breaches this Agreement, SRI is authorized and entitled to obtain, from any court of competent jurisdiction: (i) preliminary and\npermanent injunctive relief; (ii) an equitable accounting of all profits or benefits arising out of the violation or breach; (iii) direct, incidental and\nconsequential damages to SRI arising from the violation or breach; and (iv) SRI’s attorneys’ fees and costs, all of which rights and remedies shall be\ncumulative and in addition to any other rights and remedies to which SRI may be entitled.\n6. Representation and Warranty: Employee represents and warrants to SRI that Employee has not assumed any obligations or entered into any\narrangements or contracts inconsistent or in conflict with those set out in this Agreement.\n7. Modification and Waiver: No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless\ncontained in writing specifically referring to this Agreement. The failure by SRI at any time to enforce any of the provisions of this Agreement, or to\nrequire performance by Employee of any of the provisions of this Agreement, shall in no way be construed to be a waiver of those provisions and\nshall not affect either the validity of any part of this Agreement or the right of SRI to enforce each and every provision of this Agreement.\n8. Binding Effect: This Agreement shall be binding upon the inure to the benefit of SRI and any successor or assignee of SRI, including any\ncorporation or other entity which may acquire all or substantially all of the assets of SRI, or into which SRI may be merged or consolidated. Any\nsuch successor shall be deemed substituted for SRI under the provisions of this Agreement. This Agreement shall be binding upon and inure to the\nbenefit of Employee and Employee’s heirs, legal representatives and assigns, except that the Employee’s obligations to perform future services or\nemployee’s rights to receive payment for those services are hereby expressly declared to be non-assignable and nontransferable.\n9. Construction: Section headings are included in this Agreement solely for the convenience of reference and shall not be construed as a part of\nany section or modifying its contents.\n».LOGO\nNon-Competition and Confidentiality Agreement (cont’d)\n10. Governing Law and Jurisdiction: This Agreement shall be governed by and construed under the laws of the State of Florida. SRI and\nEmployee agree that this Agreement may be enforced in any court of competent jurisdiction in the State of Florida, which is SRI’s principal place of\nbusiness, or in the state where Employee is employed or can be found, at the sole election of SRI.\nEMPLOYEE SRI Surgical\nWilliam J. Braun /s/ Ray Reilly\nPrint Name Ray Reilly\nVice President, Human Resources & Client Relations\n/s/ William J. Braun\nSignature	EX-10.4 5 dex104.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nExhibit 10.4\nLOGO\nNon-Competition and Confidentiality Agreement\nThis Agreement is made and entered into on or about March 30, 2009 (exact date to be determined), between SRI Surgical (referred to as "SRI") and\nWilliam Braun (referred to as "Employee").\nSRI and Employee enter into this Agreement with the following understandings:\nA.\nSRI is engaged in the business of supplying hospitals and surgery centers with reusable surgical apparel, linens, stainless steel basins, surgical\ninstruments, disposable packs as well as providing on-site customer processing services and consultation.\nB.\nSRI maintains confidential and trade secret information which is critical to the operation and competitiveness of its business. This information\nincludes, but is not limited to, information about SRI's customers and customer lists, files containing accounting data, engineering data,\ninventions, processes, formulas, drawings, blueprints, costs, research, marketing information, production information sales, sales plans and\nmethods, supply sources, pricing, quotations, employee compensation and other confidential information, data banks and files, and computer\naided design and drafting programs. This trade secret and confidential information is referred to in this Agreement as "Confidential\nInformation." SRI's customers include persons, firms, corporation and other entities that lease/purchase the goods and services sold or\nprovided by SRI, have leased/purchased such goods and services in the past, or are potential lessors/purchasers of such goods and services in\nthe future.\nC.\nSRI will invest substantial time and resources in the development, training and support of the Employee.\nD. SRI will necessarily, in the course of the Employee's employment, provide the employee with access to SRI's Confidential Information to\nenable the Employee to perform the duties of his or her employment.\nE.\nThe Employee understands and agrees that SRI has a reasonable expectation that the Employee will not compete against SRI or work for any\nbusiness competing against SRI during Employee's employment with SRI for a reasonable period of time after the termination of Employee's\nemployment with SRI, and Employee will not disclose or make use of any of SRI's confidential information (except as authorized by SRI) at\nany time, because Employee would gain a competitive advantage through both Employee's employment with SRI and through Employee's\naccess to SRI'S Confidential Information.\nF.\nSRI and the Employee agree that substantial and irreparable loss and damage will be suffered by SRI in the event that the Employee breaches\nthis Agreement.\nSRI and Employee agree as follows:\n1. Employment: SRI employs the Employee, and the Employee accepts employment with SRI under the terms and at the compensation\nmutually agreed upon by the parties. These terms may be changed by the parties from time to time. The Employee shall devote Employee's entire\nworking time and complete efforts to SRI's business. SRI may terminate the Employee's employment at will or in accordance with applicable state\nlaw and Employee may resign at will.\nLOGO\nNon-Competition and Confidentiality Agreement (cont'd)\n2. Covenants:\n(a) Non-Competition: Employee shall not during employment with SRI and for eighteen (18) months after Employee's termination of\nemployment or resignation compete with SRI. To "compete" means (i) to directly or indirectly establish or aid in establishing, or have effective\ncontrol over any business competitive with SRI's business; or (ii) to become associated with or render services as an employee, independent\ncontractor, consultant or otherwise, to any person, firm, corporation or other entity engaged in any business competitive with SRI's business. Mere\nownership of less than one percent (1%) of the outstanding common stock of a corporation competitive with SRI's business whose stock is traded on\nany major United States stock exchange or on the over-the-counter market shall not be considered as a violation of this Agreement. For purpose of\nthis section 2(a), "any business competitive with SRI's business" shall mean a business or hospital sterile processing center which competes with\nthe\nfacility or office of SRI by which the Employee was employed.\n(b) Non-Solicitation: At all times during Employee's employment and after Employee's termination of employment or resignation,\nEmployee shall keep all information about SRI's customers confidential and secret and shall not disclose or use that information in any manner,\neither directly or indirectly, orally or in writing or otherwise, to any person, firm, corporation, or other entity. Furthermore, during Employee's\nemployment and for eighteen (18) months after the termination of Employee's employment or Employee's resignation, the Employee shall not solicit\nthe trade of any of the persons, firms, corporations or other entities who are SRI's customers, for or on behalf of Employee (if Employee is\ncompeting with SRI) or any person, firm, corporation or other entity that is in competition for SRI's business. For purpose of this section 2(b), "any\nbusiness competitive with SRI's business" shall mean a business or hospital sterile processing center which competes with the facility or office of\nSRI by which the Employee was employed.\n(c) Non-Inducement: During Employee's employment and for eighteen (18) months after the termination of Employee's employment or\nEmployee's resignation, the Employee shall not, directly or indirectly, induce or attempt to induce any present or former employee of SRI to gain or\nseek employment with any person or business in competition with SRI.\n(d) Non-Disclosure: At all times during Employee's employment and after the termination of Employee's employment or Employee's\nresignation, Employee shall protect and guard SRI's Confidential Information. Employee shall not at any time, directly or indirectly, disclose to any\nperson, firm, corporation or other entity, or use for Employee's own purposes any Confidential Information, regardless of how it is acquired, except\nas Employee's use of the Confidential Information may be authorized by SRI.\n(e) Reporting to the Company: Employee agrees to render to SRI such reports of Employee's business activities for SRI during\nEmployee's employment as SRI may request. Employee shall promptly communicate and disclose to SRI all information, observations and data\nobtained by Employee in the course of Employee's employment. Upon termination of employment, Employee shall promptly deliver to SRI, without\nretaining any copies, all memoranda, diaries, notes, records, sketches, plans, specifications, or other documents or things containing Confidential\nInformation developed or obtained by Employee.\n(f) Inventions and Discoveries: Any and all inventions and discoveries, whether or not patentable, which Employee may conceive or\nmake, either alone or in conjunction with others, during Employee's employment and relating to SRI's business shall be the exclusive property of\nSRI. Furthermore, Employee shall, upon the request of SRI and without further compensation or consideration, but at the expense of SRI, promptly\nexecute and assign any and all applications, assignments and other instruments which SRI shall deem necessary in order to apply for and obtain\nletters patent of the United States and foreign countries for those inventions and discoveries, and in order to assign and convey to SRI or its nominee\nthe sole and exclusive right, title and interest in and to those inventions, discoveries or any applications or patents upon them.\nLOGO\nNon-Competition and Confidentiality Agreement (cont'd)\n3. Non-Disparagement: Employee agrees not to make any disparaging statements about SRI or its officers, agents or employees during\nEmployee's employment and after the termination of Employee's employment or Employee's resignation.\n4.\nMinimum Restrictions Necessary; Severability: If a court of competent jurisdiction determines that any of the provisions of this Agreement\nare unenforceable for any reason, each such provision shall be deemed to be modified in a manner to render it enforceable and each provision, as\nmodified, shall then be fully enforceable as though set forth in this Agreement. Any such modification shall not affect the other provisions or clauses\nof this Agreement in any respect. The invalidity or unenforceability of any provision or clause of this Agreement shall not affect the continued\nvalidity or enforceability of any other provision or clause in this Agreement, and this Agreement shall be construed in all respects as if any invalid or\nunenforceable provision or clause was omitted.\n5. Company's Remedies: SRI and Employee agree that the services to be rendered by Employee are special, unique and of an extraordinary\ncharacter. Employee hereby acknowledges that: (i) the restrictions contained herein are reasonable and necessary in order to protect SRI's legitimate\nbusiness interests; (ii) any breach or violation thereof would result in irreparable injury to SRI; and (iii) the enforcement of a remedy by way of\ninjunction would not prevent Employee from earning a living. Employee, therefore, acknowledges and agrees that, in the event that\nEmployee violates or breaches this Agreement, SRI is authorized and entitled to obtain, from any court of competent jurisdiction: (i) preliminary and\npermanent injunctive relief; (ii) an equitable accounting of all profits or benefits arising out of the violation or breach; (iii) direct, incidental and\nconsequential damages to SRI arising from the violation or breach; and (iv) SRI's attorneys' fees and costs, all of which rights and remedies shall\nbe\ncumulative and in addition to any other rights and remedies to which SRI may be entitled.\n6. Representation and Warranty.: Employee represents and warrants to SRI that Employee has not assumed any obligations or entered into any\narrangements or contracts inconsistent or in conflict with those set out in this Agreement.\n7. Modification and Waiver: No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless\ncontained in writing specifically referring to this Agreement. The failure by SRI at any time to enforce any of the provisions of this Agreement, or to\nrequire performance by Employee of any of the provisions of this Agreement, shall in no way be construed to be a waiver of those provisions and\nshall not affect either the validity of any part of this Agreement or the right of SRI to enforce each and every provision of this Agreement.\n8. Binding Effect: This Agreement shall be binding upon the inure to the benefit of SRI and any successor or assignee of SRI, including any\ncorporation or other entity which may acquire all or substantially all of the assets of SRI, or into which SRI may be merged or consolidated. Any\nsuch successor shall be deemed substituted for SRI under the provisions of this Agreement. This Agreement shall be binding upon and inure to the\nbenefit of Employee and Employee's heirs, legal representatives and assigns, except that the Employee's obligations to perform future services\nor\nemployee's rights to receive payment for those services are hereby expressly declared to be non-assignable and nontransferable.\n9.\nConstruction: Section headings are included in this Agreement solely for the convenience of reference and shall not be construed as a part of\nany section or modifying its contents.\nLOGO\nNon-Competition and Confidentiality Agreement (cont'd)\n10. Governing Law and Jurisdiction: This Agreement shall be governed by and construed under the laws of the State of Florida. SRI and\nEmployee agree that this Agreement may be enforced in any court of competent jurisdiction in the State of Florida, which is SRI's principal place of\nbusiness, or in the state where Employee is employed or can be found, at the sole election of SRI.\nEMPLOYEE\nSRI Surgical\nWilliam J. Braun\n/s/ Ray Reilly\nPrint Name\nRay Reilly\nVice President, Human Resources & Client Relations\n/s/ William J. Braun\nSignature	EX-10.4 5 dex104.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nExhibit 10.4\nLOGO\nNon-Competition and Confidentiality Agreement\nThis Agreement is made and entered into on or about March 30, 2009 (exact date to be determined), between SRI Surgical (referred to as “SRI”) and\nWilliam Braun (referred to as “Employee”).\nSRI and Employee enter into this Agreement with the following understandings:\nA. SRI is engaged in the business of supplying hospitals and surgery centers with reusable surgical apparel, linens, stainless steel basins, surgical\ninstruments, disposable packs as well as providing on-site customer processing services and consultation.\nB. SRI maintains confidential and trade secret information which is critical to the operation and competitiveness of its business. This information\nincludes, but is not limited to, information about SRI’s customers and customer lists, files containing accounting data, engineering data,\ninventions, processes, formulas, drawings, blueprints, costs, research, marketing information, production information, sales, sales plans and\nmethods, supply sources, pricing, quotations, employee compensation and other confidential information, data banks and files, and computer\naided design and drafting programs. This trade secret and confidential information is referred to in this Agreement as “Confidential\nInformation.” SRI’s customers include persons, firms, corporation and other entities that lease/purchase the goods and services sold or\nprovided by SRI, have leased/purchased such goods and services in the past, or are potential lessors/purchasers of such goods and services in\nthe future.\nC. SRI will invest substantial time and resources in the development, training and support of the Employee.\nD. SRI will necessarily, in the course of the Employee’s employment, provide the employee with access to SRI’s Confidential Information to\nenable the Employee to perform the duties of his or her employment.\nE. The Employee understands and agrees that SRI has a reasonable expectation that the Employee will not compete against SRI or work for any\nbusiness competing against SRI during Employee’s employment with SRI for a reasonable period of time after the termination of Employee’s\nemployment with SRI, and Employee will not disclose or make use of any of SRI’s confidential information (except as authorized by SRI) at\nany time, because Employee would gain a competitive advantage through both Employee’s employment with SRI and through Employee’s\naccess to SRI’s Confidential Information.\nF. SRI and the Employee agree that substantial and irreparable loss and damage will be suffered by SRI in the event that the Employee breaches\nthis Agreement.\nSRI and Employee agree as follows:\n1. Employment: SRI employs the Employee, and the Employee accepts employment with SRI under the terms and at the compensation\nmutually agreed upon by the parties. These terms may be changed by the parties from time to time. The Employee shall devote Employee’s entire\nworking time and complete efforts to SRI’s business. SRI may terminate the Employee’s employment at will or in accordance with applicable state\nlaw and Employee may resign at will.\nLOGO\nNon-Competition and Confidentiality Agreement (cont’d)\n2. Covenants:\n(a) Non-Competition: Employee shall not during employment with SRI and for eighteen (18) months after Employee’s termination of\nemployment or resignation compete with SRI. To “compete” means (i) to directly or indirectly establish or aid in establishing, or have effective\ncontrol over any business competitive with SRI’s business; or (ii) to become associated with or render services as an employee, independent\ncontractor, consultant or otherwise, to any person, firm, corporation or other entity engaged in any business competitive with SRI’s business. Mere\nownership of less than one percent (1%) of the outstanding common stock of a corporation competitive with SRI’s business whose stock is traded on\nany major United States stock exchange or on the over-the-counter market shall not be considered as a violation of this Agreement. For purpose of\nthis section 2(a), “any business competitive with SRI’s business” shall mean a business or hospital sterile processing center which competes with the\nfacility or office of SRI by which the Employee was employed.\n(b) Non-Solicitation: At all times during Employee’s employment and after Employee’s termination of employment or resignation,\nEmployee shall keep all information about SRI’s customers confidential and secret and shall not disclose or use that information in any manner,\neither directly or indirectly, orally or in writing or otherwise, to any person, firm, corporation, or other entity. Furthermore, during Employee’s\nemployment and for eighteen (18) months after the termination of Employee’s employment or Employee’s resignation, the Employee shall not solicit\nthe trade of any of the persons, firms, corporations or other entities who are SRI’s customers, for or on behalf of Employee (if Employee is\ncompeting with SRI) or any person, firm, corporation or other entity that is in competition for SRI’s business. For purpose of this section 2(b), “any\nbusiness competitive with SRI’s business” shall mean a business or hospital sterile processing center which competes with the facility or office of\nSRI by which the Employee was employed.\n(c) Non-Inducement: During Employee’s employment and for eighteen (18) months after the termination of Employee’s employment or\nEmployee’s resignation, the Employee shall not, directly or indirectly, induce or attempt to induce any present or former employee of SRI to gain or\nseek employment with any person or business in competition with SRI.\n(d) Non-Disclosure: At all times during Employee’s employment and after the termination of Employee’s employment or Employee’s\nresignation, Employee shall protect and guard SRI’s Confidential Information. Employee shall not at any time, directly or indirectly, disclose to any\nperson, firm, corporation or other entity, or use for Employee’s own purposes any Confidential Information, regardless of how it is acquired, except\nas Employee’s use of the Confidential Information may be authorized by SRI.\n(e) Reporting to the Company: Employee agrees to render to SRI such reports of Employee’s business activities for SRI during\nEmployee’s employment as SRI may request. Employee shall promptly communicate and disclose to SRI all information, observations and data\nobtained by Employee in the course of Employee’s employment. Upon termination of employment, Employee shall promptly deliver to SRI, without\nretaining any copies, all memoranda, diaries, notes, records, sketches, plans, specifications, or other documents or things containing Confidential\nInformation developed or obtained by Employee.\n(f) Inventions and Discoveries: Any and all inventions and discoveries, whether or not patentable, which Employee may conceive or\nmake, either alone or in conjunction with others, during Employee’s employment and relating to SRI’s business shall be the exclusive property of\nSRI. Furthermore, Employee shall, upon the request of SRI and without further compensation or consideration, but at the expense of SRI, promptly\nexecute and assign any and all applications, assignments and other instruments which SRI shall deem necessary in order to apply for and obtain\nletters patent of the United States and foreign countries for those inventions and discoveries, and in order to assign and convey to SRI or its nominee\nthe sole and exclusive right, title and interest in and to those inventions, discoveries or any applications or patents upon them.\nLOGO\nNon-Competition and Confidentiality Agreement (cont’d)\n3. Non-Disparagement: Employee agrees not to make any disparaging statements about SRI or its officers, agents or employees during\nEmployee’s employment and after the termination of Employee’s employment or Employee’s resignation.\n4. Minimum Restrictions Necessary; Severability: If a court of competent jurisdiction determines that any of the provisions of this Agreement\nare unenforceable for any reason, each such provision shall be deemed to be modified in a manner to render it enforceable and each provision, as\nmodified, shall then be fully enforceable as though set forth in this Agreement. Any such modification shall not affect the other provisions or clauses\nof this Agreement in any respect. The invalidity or unenforceability of any provision or clause of this Agreement shall not affect the continued\nvalidity or enforceability of any other provision or clause in this Agreement, and this Agreement shall be construed in all respects as if any invalid or\nunenforceable provision or clause was omitted.\n5. Company’s Remedies: SRI and Employee agree that the services to be rendered by Employee are special, unique and of an extraordinary\ncharacter. Employee hereby acknowledges that: (i) the restrictions contained herein are reasonable and necessary in order to protect SRI’s legitimate\nbusiness interests; (ii) any breach or violation thereof would result in irreparable injury to SRI; and (iii) the enforcement of a remedy by way of\ninjunction would not prevent Employee from earning a living. Employee, therefore, acknowledges and agrees that, in the event that\nEmployee violates or breaches this Agreement, SRI is authorized and entitled to obtain, from any court of competent jurisdiction: (i) preliminary and\npermanent injunctive relief; (ii) an equitable accounting of all profits or benefits arising out of the violation or breach; (iii) direct, incidental and\nconsequential damages to SRI arising from the violation or breach; and (iv) SRI’s attorneys’ fees and costs, all of which rights and remedies shall be\ncumulative and in addition to any other rights and remedies to which SRI may be entitled.\n6. Representation and Warranty: Employee represents and warrants to SRI that Employee has not assumed any obligations or entered into any\narrangements or contracts inconsistent or in conflict with those set out in this Agreement.\n7. Modification and Waiver: No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless\ncontained in writing specifically referring to this Agreement. The failure by SRI at any time to enforce any of the provisions of this Agreement, or to\nrequire performance by Employee of any of the provisions of this Agreement, shall in no way be construed to be a waiver of those provisions and\nshall not affect either the validity of any part of this Agreement or the right of SRI to enforce each and every provision of this Agreement.\n8. Binding Effect: This Agreement shall be binding upon the inure to the benefit of SRI and any successor or assignee of SRI, including any\ncorporation or other entity which may acquire all or substantially all of the assets of SRI, or into which SRI may be merged or consolidated. Any\nsuch successor shall be deemed substituted for SRI under the provisions of this Agreement. This Agreement shall be binding upon and inure to the\nbenefit of Employee and Employee’s heirs, legal representatives and assigns, except that the Employee’s obligations to perform future services or\nemployee’s rights to receive payment for those services are hereby expressly declared to be non-assignable and nontransferable.\n9. Construction: Section headings are included in this Agreement solely for the convenience of reference and shall not be construed as a part of\nany section or modifying its contents.\nLOGO\nNon-Competition and Confidentiality Agreement (cont’d)\n10. Governing Law and Jurisdiction: This Agreement shall be governed by and construed under the laws of the State of Florida. SRI and\nEmployee agree that this Agreement may be enforced in any court of competent jurisdiction in the State of Florida, which is SRI’s principal place of\nbusiness, or in the state where Employee is employed or can be found, at the sole election of SRI.\nEMPLOYEE\nSRI Surgical\nWilliam J. Braun\n/s/ Ray Reilly\nPrint Name\nRay Reilly\nVice President, Human Resources & Client Relations\n/s/ William J. Braun\nSignature
+25572e291f5db140343e873745a39561.pdf	effective_date jurisdiction party term	EX-99.(D)(4) 12 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nLOGO\nLOGO\nCONFIDENTIALITY AGREEMENT\nWachovia Capital Markets, LLC (“Wachovia”) has been retained by American Land Lease, Inc. (together with any affiliates and subsidiaries, the\n“Company”) to serve as the Company’s exclusive financial advisor in connection with a possible transaction involving the Company, its businesses\nor assets (a “Possible Transaction”). The undersigned (“Participant” or “you”) desires to receive certain information relating to the Company so that\nit may consider and evaluate a Possible Transaction. As a condition to receiving such information, Participant agrees to the following conditions for\nthe benefit of Wachovia and the Company:\n1. Confidential Information\nFor purposes of this Confidentiality Agreement (this “Agreement”), the term “Confidential Information” shall mean any and all information\nmade available to Participant or Participant’s Representatives (as defined below) by the Company, Wachovia or the Company’s other\nRepresentatives relating in any way to the Company or a Possible Transaction (including, but not limited to, any information or offering\nmaterials prepared by Wachovia or the Company) and all Work Papers. However, Confidential Information shall not include information\nwhich (i) is or becomes generally available to the public other than as a result of breach of this Agreement by Participant or by Participant’s\nRepresentatives, (ii) was lawfully in Participant’s or Participant’s Representatives’ possession prior to any disclosure by the Company,\nWachovia or the Company’s other Representatives, or (iii) was provided to Participant or Participant’s Representatives by a third party that was\nnot, to the knowledge of Participant or Participant’s Representatives, bound by any obligation of confidentiality to the Company, Wachovia or\nthe Company’s other Representatives.\nAs used herein, the term “Work Papers” means all notes, analyses, compilations, data, studies, interpretations and other information, whether\nin visual, electronic, written or other form, prepared by you or on your behalf or for your benefit that contain, reflect, summarize, analyze,\ndiscuss or contain any Confidential Information.\nAs used herein, the term “Representatives” means, as to any person, such person’s affiliates and its and their directors, officers, employees,\nshareholders, members, managers, partners, trustees, agents, investors, lenders, representatives and advisors (including, without limit,\nappraisers, environmental consultants, engineers, financial advisors, legal counsel and accountants).\n2. Use of Confidential Information\nParticipant agrees to hold as strictly confidential, and shall require its respective Representatives to hold as strictly confidential, all\nConfidential Information. Participant agrees not to use the Confidential Information, and require its respective Representatives not to use the\nConfidential Information, for any purpose other than evaluating, negotiating and consummating a Possible Transaction. Participant shall not\ndisclose any Confidential Information or the fact that the Confidential Information exists or has been made available, the fact that the\nCompany is considering the Potential Transaction or that discussions are taking place among the Company, Wachovia and the Participant or\nothers regarding a Possible Transaction to third parties except (i) to its Representatives who are assisting Participant in the evaluation of a\nPossible Transaction (“Permitted Parties”),\n- 1of6-\nLOGO\nLOGO\nprovided that each of such Permitted Parties are advised of this Agreement and agree to maintain confidentiality as set forth herein and (ii) to\nthe extent Participant is required by statute, rule, regulation or judicial process; provided that if Participant is required by statute, rule,\nregulation or judicial process to disclose Confidential Information it shall first notify the Company (if legally permitted) so that the Company,\nat the Company’s sole expense, may seek a protective order or other appropriate protections. In the absence of such an order, the Participant\nmay comply with such legal requirements. Participant shall be liable for any breach of this agreement by its respective Representatives. The\nrestrictions on disclosure set forth above (other than the restrictions on disclosure of the Confidential Information itself) shall terminate upon\nthe public disclosure of any transaction involving the Company including a merger, sale of all or substantially all of the Company’s assets or a\nchange in control.\n3. Return of Confidential Information\nParticipant agrees to, and to require its Representatives to, return any Confidential Information (other than Work Papers) and destroy all Work\nPapers within five business days of the Company’s request, unless otherwise required by law; provided, however, that Participant may destroy\nthe Confidential Information and Work Papers in lieu of returning them if the Participant certifies such destruction in writing. Notwithstanding\nthe foregoing, it is agreed that any portion of the Confidential Information that may be found in Work Papers and any other Confidential\nInformation not requested to be returned to the Company, in lieu of being destroyed, may be held by you or your Representatives and kept\nsubject to the terms of this Agreement.\n4. Disclaimer\nParticipant acknowledges that (i) no representation or warranty, express or implied, is made by Wachovia, the Company or any of their\nrespective Representatives as to the accuracy or completeness of any of the Confidential Information, (ii) the Confidential Information does\nnot purport to be all-inclusive or to contain all the information a Participant may desire, and (iii) the Company expressly reserves the right at\nits sole discretion to reject any or all proposals for a Possible Transaction and to terminate discussions with any party at any time. The\nParticipant agrees that this Agreement does not obligate the Company, Wachovia or the Company’s other Representative’s to disclose any\ninformation, including any Confidential Information, negotiate or enter into any agreement or relationship with the Participant. The Participant\nfurther agrees that Wachovia and the Company shall be free to conduct any process for any transaction involving the Company or a Possible\nTransaction, if and as they in their sole discretion shall determine.\n5. No Solicitation\nThe Participant and any of its respective Representatives shall not, for a period of one year from the date hereof, without the prior written\nconsent of the Company, directly or indirectly, solicit to employ or actually employ any of the following officers or employees of the Company\n(such individuals, the “Senior Management Officers”): the Chairman of the Board, the President and Chief Operating Officer and the Chief\nFinancial Officer, except for any Senior Management Officers who are solicited and hired as a result of a general, non-targeted solicitation\n(including a search firm or similar entity) for persons made in the ordinary course of business, or any Senior Management Officers that\ncontacts you on their own initiative without any solicitation or encouragement from you (other than the general, non-targeted solicitations\ndescribed above).\n- 2of6-\nLOGO\nLOGO\n6. Material Non-Public Information\nParticipant acknowledges that Wachovia has informed Participant that the Confidential Information that may be disclosed hereunder by the\nCompany, Wachovia or the Company’s other Representatives will likely contain material, non-public information. Each Party acknowledges\nand understands that federal securities law restricts any Person who has material, non-public information from purchasing or selling securities\nof another Person while in possession of material non-public information.\n7. Standstill\nNeither the Participant nor any of its Representatives that has been provided with Confidential Information, for a period of one year from the\ndate of this Agreement, shall in any manner, directly or indirectly, without the prior written consent of the Company’s Board of Directors or in\nresponse to a written request from or on behalf of the Company: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or\nannounce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer\nor propose (whether publicly or otherwise) to effect or participate in (i) any acquisition of any voting securities (or beneficial ownership\nthereof), or rights or options to acquire any voting securities (or beneficial ownership thereof), or any assets or businesses of the Company or\nany of its subsidiaries or affiliates, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its\nsubsidiaries or affiliates or the assets of the Company or its subsidiaries or affiliates constituting a significant portion of the consolidated assets\nof the Company and its subsidiaries or affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary\ntransaction with respect to the Company or any of its subsidiaries or affiliates, or (iv) any “solicitation” of “proxies” (as these terms are used in\nthe rules and regulations of the Securities and Exchange Commission) or consents to vote any voting securities of the Company or any of its\naffiliates; (b) form, join or in any way participate in a “group” (as defined under the rules and regulations of the Securities and Exchange\nCommission) with respect to the Company or otherwise act in concert with any Person in respect of the Company’s securities, without the\nprior written consent of the Chief Executive Officer (or similar senior officer) of the Company; (c) otherwise act, alone or in concert with\nanother Person, to seek representation on or to control or influence the management, board of directors or policies of the Company; (d) take\nany action which would or would reasonably be expected to force the other party to make a public announcement regarding any of the matters\nset forth in (a) above; or (e) enter into any discussions or arrangements with any Person with respect to any of the foregoing. The provisions of\nthe immediately preceding sentence notwithstanding, you may, prior to the expiration of such one year period and subject to applicable laws\n(including applicable rules and regulations of the Securities and Exchange Commission) participate in any of the actions listed in clauses\n(a) through (e) of the immediately preceding sentence if a third party takes any of such actions. The Company shall provide or make available\nto the Participant any information that the Company provides to third parties that are considering a Possible Transaction.\n8. Brokers\nWachovia has been retained by the Company to serve as its exclusive financial advisor with respect to a Possible Transaction and shall be\ncompensated by the Company in connection with any Possible Transaction. Therefore, Participant agrees that neither the Company nor\nWachovia shall be obligated to pay any fees on their behalf to any brokers, finders, or other parties claiming to represent Participant in\nconnection with a Possible Transaction. Additionally, Participant is strictly prohibited\n- 3of6-\nLOGO\nLOGO\nby this agreement from acting as a broker or an agent using any of the Confidential Information provided. Participant shall indemnify and hold\nCompany and Wachovia harmless from and against any claims, causes of action or liabilities, including without limitation, reasonable\nattorneys’ fees and court costs which may be incurred with respect to any claims for other real estate commissions, broker’s fees or finder’s\nfees in relation to or in connection with the Properties to the extent claimed by, through or under Participant.\n9. Contact with Personnel, Properties or Tenants\nDuring the course of Participant’s evaluation of a Possible Transaction, all inquiries and other communications are to be made directly to\nWachovia or an officer of the Company authorized by Wachovia or the Company. Accordingly, Participant will not, and will require its\nRepresentatives not to, contact or attempt to contact any other Representatives, creditors, customers, vendors, suppliers or business partners of\nthe Company concerning or in connection with a Possible Transaction, without the prior, express consent of the Company or Wachovia.\nParticipant agrees that it will not directly or through a third party contact any municipality, governmental agency or quasi-governing body\nregarding the properties involved in a Possible Transaction (the “Properties”). This restriction is not intended to prohibit general inquiries, such\nas non Property-specific inquiries regarding zoning, parking and redevelopment procedures and guidelines for the applicable market area, or\nreview of publicly-available information. In furtherance of the foregoing, Participant agrees that it will not, and will cause its Representatives\nnot to, contact the tenants or Properties’ staff without Company’s prior written consent. Any and all questions related to the evaluation of the\nProperties must be directed to the Company, Wachovia or the Company’s other Representatives. Participant agrees that it will not go to the\nProperties without the prior written consent of Company.\n10. General Terms\nThis Agreement sets forth the parties’ entire agreement regarding the subject matter hereof, and supersedes all other representations,\nnegotiations, understandings and agreements, written or oral, between the parties concerning the subject matter hereof. If any provision of this\nAgreement is declared void or unenforceable, such provisions shall be severed from this Agreement, which shall otherwise remain in full force\nand effect. In the event any suit or other action is commenced to enforce any provision of this Agreement, the prevailing party shall be entitled\nto reimbursement for reasonable attorneys’ fees and costs if deemed to be appropriate by the adjudicating body. Except as provided in\nParagraphs 2, 5 and 7 hereof, this Agreement shall survive for a period of one (1) year after the date hereof. Participant recognizes that any\nactual or threatened disclosure of Confidential Information in violation of this Agreement will cause the Company irreparable injury and that\nthe Company therefore shall be entitled to injunctive relief, a decree of specific performance or other equitable relief, upon a proper showing\nof such a violation, without the necessity of demonstrating actual monetary damage. The Agreement shall be governed by the laws of the State\nof Delaware. This agreement is binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. Neither the\nfailure nor delay by any party in exercising any right hereunder will operate as a waiver of such right, and no single or partial exercise of a\nright will preclude any other or further exercise of such right. This Agreement may be executed in any number of counterpart signature pages,\nsuch signatures may be delivered by facsimile, portable document format (“.pdf”) or similar electronic means, and signatures so executed and\ndelivered shall be binding and effective on all parties. If any provision of this Agreement is determined to be illegal, invalid or unenforceable,\nthen it shall be reformed so as to provide the maximum protection available to the Company and its\n- 4of6-\nLOGO\nLOGO\nRepresentatives or, if such reformation is not possible, then such provision shall be severed from this Agreement and the remaining provisions\nshall remain in full force and effect. The term “person” means any individual, corporation, partnership, limited liability company, joint venture,\nestate, trust, association, organization, or other entity or governmental body.\n(Signature Pages Follow)\n- 5of6-\nLOGO\nLOGO\nThis Agreement has been executed by the undersigned as of July 16, 2008.\nCOMPANY:\nAMERICAN LAND LEASE, INC.\nBy: /s/ Shannon E. Smith\nName:\nTitle:\nShannon E. Smith\nChief Financial Officer\nPARTICIPANT:\nGREEN COURTE PARTNERS, LLC\nBy: /s/ James R. Goldman\nName:\nTitle:\nJames R. Goldman\nManaging Director\nRETURN EXECUTED AGREEMENT TO THE FOLLOWING:\nWachovia Securities\n- 6of6-	EX-99.(D)(4) 12 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nLOGO ».LOGO\nCONFIDENTIALITY AGREEMENT\nWachovia Capital Markets, LLC (“Wachovia”) has been retained by American Land Lease, Inc. (together with any affiliates and subsidiaries, the\n“Company”) to serve as the Company’s exclusive financial advisor in connection with a possible transaction involving the Company, its businesses\nor assets (a “Possible Transaction”). The undersigned (“Participant” or “you”) desires to receive certain information relating to the Company so that\nit may consider and evaluate a Possible Transaction. As a condition to receiving such information, Participant agrees to the following conditions for\nthe benefit of Wachovia and the Company:\n1. Confidential Information\nFor purposes of this Confidentiality Agreement (this “Agreement”), the term “Confidential Information” shall mean any and all information\nmade available to Participant or Participant’s Representatives (as defined below) by the Company, Wachovia or the Company’s other\nRepresentatives relating in any way to the Company or a Possible Transaction (including, but not limited to, any information or offering\nmaterials prepared by Wachovia or the Company) and all Work Papers. However, Confidential Information shall not include information\nwhich (i) is or becomes generally available to the public other than as a result of breach of this Agreement by Participant or by Participant’s\nRepresentatives, (ii) was lawfully in Participant’s or Participant’s Representatives’ possession prior to any disclosure by the Company,\nWachovia or the Company’s other Representatives, or (iii) was provided to Participant or Participant’s Representatives by a third party that was\nnot, to the knowledge of Participant or Participant’s Representatives, bound by any obligation of confidentiality to the Company, Wachovia or\nthe Company’s other Representatives.\nAs used herein, the term “Work Papers” means all notes, analyses, compilations, data, studies, interpretations and other information, whether\nin visual, electronic, written or other form, prepared by you or on your behalf or for your benefit that contain, reflect, summarize, analyze,\ndiscuss or contain any Confidential Information.\nAs used herein, the term “Representatives” means, as to any person, such person’s affiliates and its and their directors, officers, employees,\nshareholders, members, managers, partners, trustees, agents, investors, lenders, representatives and advisors (including, without limit,\nappraisers, environmental consultants, engineers, financial advisors, legal counsel and accountants).\n2. Use of Confidential Information\nParticipant agrees to hold as strictly confidential, and shall require its respective Representatives to hold as strictly confidential, all\nConfidential Information. Participant agrees not to use the Confidential Information, and require its respective Representatives not to use the\nConfidential Information, for any purpose other than evaluating, negotiating and consummating a Possible Transaction. Participant shall not\ndisclose any Confidential Information or the fact that the Confidential Information exists or has been made available, the fact that the\nCompany is considering the Potential Transaction or that discussions are taking place among the Company, Wachovia and the Participant or\nothers regarding a Possible Transaction to third parties except (i) to its Representatives who are assisting Participant in the evaluation of a\nPossible Transaction (“Permitted Parties”),\n-1of6-\nLOGO ».LOGO\nprovided that each of such Permitted Parties are advised of this Agreement and agree to maintain confidentiality as set forth herein and (ii) to\nthe extent Participant is required by statute, rule, regulation or judicial process; provided that if Participant is required by statute, rule,\nregulation or judicial process to disclose Confidential Information it shall first notify the Company (if legally permitted) so that the Company,\nat the Company’s sole expense, may seek a protective order or other appropriate protections. In the absence of such an order, the Participant\nmay comply with such legal requirements. Participant shall be liable for any breach of this agreement by its respective Representatives. The\nrestrictions on disclosure set forth above (other than the restrictions on disclosure of the Confidential Information itself) shall terminate upon\nthe public disclosure of any transaction involving the Company including a merger, sale of all or substantially all of the Company’s assets or a\nchange in control.\n3. Return of Confidential Information\nParticipant agrees to, and to require its Representatives to, return any Confidential Information (other than Work Papers) and destroy all Work\nPapers within five business days of the Company’s request, unless otherwise required by law; provided, however, that Participant may destroy\nthe Confidential Information and Work Papers in lieu of returning them if the Participant certifies such destruction in writing. Notwithstanding\nthe foregoing, it is agreed that any portion of the Confidential Information that may be found in Work Papers and any other Confidential\nInformation not requested to be returned to the Company, in lieu of being destroyed, may be held by you or your Representatives and kept\nsubject to the terms of this Agreement.\n4, Disclaimer\nParticipant acknowledges that (i) no representation or warranty, express or implied, is made by Wachovia, the Company or any of their\nrespective Representatives as to the accuracy or completeness of any of the Confidential Information, (ii) the Confidential Information does\nnot purport to be all-inclusive or to contain all the information a Participant may desire, and (iii) the Company expressly reserves the right at\nits sole discretion to reject any or all proposals for a Possible Transaction and to terminate discussions with any party at any time. The\nParticipant agrees that this Agreement does not obligate the Company, Wachovia or the Company’s other Representative’s to disclose any\ninformation, including any Confidential Information, negotiate or enter into any agreement or relationship with the Participant. The Participant\nfurther agrees that Wachovia and the Company shall be free to conduct any process for any transaction involving the Company or a Possible\nTransaction, if and as they in their sole discretion shall determine.\n5. No Solicitation\nThe Participant and any of its respective Representatives shall not, for a period of one year from the date hereof, without the prior written\nconsent of the Company, directly or indirectly, solicit to employ or actually employ any of the following officers or employees of the Company\n(such individuals, the “Senior Management Officers”): the Chairman of the Board, the President and Chief Operating Officer and the Chief\nFinancial Officer, except for any Senior Management Officers who are solicited and hired as a result of a general, non-targeted solicitation\n(including a search firm or similar entity) for persons made in the ordinary course of business, or any Senior Management Officers that\ncontacts you on their own initiative without any solicitation or encouragement from you (other than the general, non-targeted solicitations\ndescribed above).\n-20f6-\n6. Material Non-Public Information\nParticipant acknowledges that Wachovia has informed Participant that the Confidential Information that may be disclosed hereunder by the\nCompany, Wachovia or the Company’s other Representatives will likely contain material, non-public information. Each Party acknowledges\nand understands that federal securities law restricts any Person who has material, non-public information from purchasing or selling securities\nof another Person while in possession of material non-public information.\n7. Standstill\nNeither the Participant nor any of its Representatives that has been provided with Confidential Information, for a period of one year from the\ndate of this Agreement, shall in any manner, directly or indirectly, without the prior written consent of the Company’s Board of Directors or in\nresponse to a written request from or on behalf of the Company: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or\nannounce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer\nor propose (whether publicly or otherwise) to effect or participate in (i) any acquisition of any voting securities (or beneficial ownership\nthereof), or rights or options to acquire any voting securities (or beneficial ownership thereof), or any assets or businesses of the Company or\nany of its subsidiaries or affiliates, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its\nsubsidiaries or affiliates or the assets of the Company or its subsidiaries or affiliates constituting a significant portion of the consolidated assets\nof the Company and its subsidiaries or affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary\ntransaction with respect to the Company or any of its subsidiaries or affiliates, or (iv) any “solicitation” of “proxies” (as these terms are used in\nthe rules and regulations of the Securities and Exchange Commission) or consents to vote any voting securities of the Company or any of its\naffiliates; (b) form, join or in any way participate in a “group” (as defined under the rules and regulations of the Securities and Exchange\nCommission) with respect to the Company or otherwise act in concert with any Person in respect of the Company’s securities, without the\nprior written consent of the Chief Executive Officer (or similar senior officer) of the Company; (c) otherwise act, alone or in concert with\nanother Person, to seek representation on or to control or influence the management, board of directors or policies of the Company; (d) take\nany action which would or would reasonably be expected to force the other party to make a public announcement regarding any of the matters\nset forth in (a) above; or (e) enter into any discussions or arrangements with any Person with respect to any of the foregoing. The provisions of\nthe immediately preceding sentence notwithstanding, you may, prior to the expiration of such one year period and subject to applicable laws\n(including applicable rules and regulations of the Securities and Exchange Commission) participate in any of the actions listed in clauses\n(a) through (e) of the immediately preceding sentence if a third party takes any of such actions. The Company shall provide or make available\nto the Participant any information that the Company provides to third parties that are considering a Possible Transaction.\n8. Brokers\nWachovia has been retained by the Company to serve as its exclusive financial advisor with respect to a Possible Transaction and shall be\ncompensated by the Company in connection with any Possible Transaction. Therefore, Participant agrees that neither the Company nor\nWachovia shall be obligated to pay any fees on their behalf to any brokers, finders, or other parties claiming to represent Participant in\nconnection with a Possible Transaction. Additionally, Participant is strictly prohibited\n-30f6-\n10. by this agreement from acting as a broker or an agent using any of the Confidential Information provided. Participant shall indemnify and hold\nCompany and Wachovia harmless from and against any claims, causes of action or liabilities, including without limitation, reasonable\nattorneys’ fees and court costs which may be incurred with respect to any claims for other real estate commissions, broker’s fees or finder’s\nfees in relation to or in connection with the Properties to the extent claimed by, through or under Participant.\nContact with Personnel, Properties or Tenants\nDuring the course of Participant’s evaluation of a Possible Transaction, all inquiries and other communications are to be made directly to\nWachovia or an officer of the Company authorized by Wachovia or the Company. Accordingly, Participant will not, and will require its\nRepresentatives not to, contact or attempt to contact any other Representatives, creditors, customers, vendors, suppliers or business partners of\nthe Company concerning or in connection with a Possible Transaction, without the prior, express consent of the Company or Wachovia.\nParticipant agrees that it will not directly or through a third party contact any municipality, governmental agency or quasi-governing body\nregarding the properties involved in a Possible Transaction (the “Properties”). This restriction is not intended to prohibit general inquiries, such\nas non Property-specific inquiries regarding zoning, parking and redevelopment procedures and guidelines for the applicable market area, or\nreview of publicly-available information. In furtherance of the foregoing, Participant agrees that it will not, and will cause its Representatives\nnot to, contact the tenants or Properties’ staff without Company’s prior written consent. Any and all questions related to the evaluation of the\nProperties must be directed to the Company, Wachovia or the Company’s other Representatives. Participant agrees that it will not go to the\nProperties without the prior written consent of Company.\nGeneral Terms\nThis Agreement sets forth the parties’ entire agreement regarding the subject matter hereof, and supersedes all other representations,\nnegotiations, understandings and agreements, written or oral, between the parties concerning the subject matter hereof. If any provision of this\nAgreement is declared void or unenforceable, such provisions shall be severed from this Agreement, which shall otherwise remain in full force\nand effect. In the event any suit or other action is commenced to enforce any provision of this Agreement, the prevailing party shall be entitled\nto reimbursement for reasonable attorneys’ fees and costs if deemed to be appropriate by the adjudicating body. Except as provided in\nParagraphs 2, 5 and 7 hereof, this Agreement shall survive for a period of one (1) year after the date hereof. Participant recognizes that any\nactual or threatened disclosure of Confidential Information in violation of this Agreement will cause the Company irreparable injury and that\nthe Company therefore shall be entitled to injunctive relief, a decree of specific performance or other equitable relief, upon a proper showing\nof such a violation, without the necessity of demonstrating actual monetary damage. The Agreement shall be governed by the laws of the State\nof Delaware. This agreement is binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. Neither the\nfailure nor delay by any party in exercising any right hereunder will operate as a waiver of such right, and no single or partial exercise of a\nright will preclude any other or further exercise of such right. This Agreement may be executed in any number of counterpart signature pages,\nsuch signatures may be delivered by facsimile, portable document format (“.pdf”) or similar electronic means, and signatures so executed and\ndelivered shall be binding and effective on all parties. If any provision of this Agreement is determined to be illegal, invalid or unenforceable,\nthen it shall be reformed so as to provide the maximum protection available to the Company and its\n-40f6-\fLOGO ».LOGO\nRepresentatives or, if such reformation is not possible, then such provision shall be severed from this Agreement and the remaining provisions\nshall remain in full force and effect. The term “person” means any individual, corporation, partnership, limited liability company, joint venture,\nestate, trust, association, organization, or other entity or governmental body.\n(Signature Pages Follow)\n-50f6-\nLOGO\nThis Agreement has been executed by the undersigned as of July 16, 2008. RETURN EXECUTED AGREEMENT TO THE FOLLOWING:\nWachovia Securities\n-60f6-\n».LOGO\nCOMPANY:\nAMERICAN LAND LEASE, INC.\nBy:  /s/ Shannon E. Smith\nName: Shannon E. Smith\nTitle: Chief Financial Officer\nPARTICIPANT:\nGREEN COURTE PARTNERS, LLC\nBy:  /s/James R. Goldman\nName: James R. Goldman\nTitle: Managing Director	EX-99.(D)(4) 12 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nLOGO\nLOGO\nCONFIDENTIALITY AGREEMENT\nWachovia Capital Markets, LLC ("Wachovia") has been retained by American Land Lease, Inc. (together with any affiliates and subsidiaries, the\n"Company") to serve as the Company's exclusive financial advisor in connection with a possible transaction involving the Company, its businesses\nor assets (a "Possible Transaction"). The undersigned ("Participant" or "you") desires to receive certain information relating to the Company so that\nit may consider and evaluate a Possible Transaction. As a condition to receiving such information, Participant agrees to the following conditions for\nthe benefit of Wachovia and the Company:\n1.\nConfidential Information\nFor purposes of this Confidentiality Agreement (this "Agreement"), the term "Confidential Information" shall mean any and all information\nmade available to Participant or Participant's Representatives (as defined below) by the Company, Wachovia or the Company's other\nRepresentatives relating in any way to the Company or a Possible Transaction (including, but not limited to, any information or offering\nmaterials prepared by Wachovia or the Company) and all Work Papers. However, Confidential Information shall not include information\nwhich\n(i)\nis\nor\nbecomes\ngenerally\navailable\nto\nthe\npublic\nother\nthan\nas\na\nresult\nof\nbreach\nof\nthis\nAgreement\nby\nParticipant\nor\nby\nParticipant's\nRepresentatives, (ii) was lawfully in Participant's or Participant's Representatives' possession prior to any disclosure by the Company,\nWachovia or the Company's other Representatives, or (iii) was provided to Participant or Participant's Representatives by a third party that was\nnot, to the knowledge of Participant or Participant's Representatives, bound by any obligation of confidentiality to the Company, Wachovia or\nthe Company's other Representatives.\nAs used herein, the term "Work Papers" means all notes, analyses, compilations, data, studies, interpretations and other information, whether\nin visual, electronic, written or other form, prepared by you or on your behalf or for your benefit that contain, reflect, summarize, analyze,\ndiscuss or contain any Confidential Information.\nAs used herein, the term "Representatives" means, as to any person, such person's affiliates and its and their directors, officers, employees,\nshareholders, members, managers, partners, trustees, agents, investors, lenders, representatives and advisors (including, without limit,\nappraisers, environmental consultants, engineers, financial advisors, legal counsel and accountants).\n2.\nUse of Confidential Information\nParticipant agrees to hold as strictly confidential, and shall require its respective Representatives to hold as strictly confidential, all\nConfidential Information. Participant agrees not to use the Confidential Information, and require its respective Representatives not to use the\nConfidential Information, for any purpose other than evaluating, negotiating and consummating a Possible Transaction. Participant shall not\ndisclose any Confidential Information or the fact that the Confidential Information exists or has been made available, the fact that the\nCompany is considering the Potential Transaction or that discussions are taking place among the Company, Wachovia and the Participant or\nothers regarding a Possible Transaction to third parties except (i) to its Representatives who are assisting Participant in the evaluation of a\nPossible Transaction ("Permitted Parties"),\n1 of 6\nLOGO\nLOGO\nprovided that each of such Permitted Parties are advised of this Agreement and agree to maintain confidentiality as set forth herein and (ii) to\nthe extent Participant is required by statute, rule, regulation or judicial process; provided that if Participant is required by statute, rule,\nregulation or judicial process to disclose Confidential Information it shall first notify the Company (if legally permitted) so that the Company,\nat the Company's sole expense, may seek a protective order or other appropriate protections. In the absence of such an order, the Participant\nmay comply with such legal requirements Participant shall be liable for any breach of this agreement by its respective Representatives. The\nrestrictions on disclosure set forth above (other than the restrictions on disclosure of the Confidential Information itself) shall terminate upon\nthe public disclosure of any transaction involving the Company including a merger, sale of all or substantially all of the Company's assets or\na\nchange in control.\n3.\nReturn of Confidential Information\nParticipant agrees to, and to require its Representatives to, return any Confidentia Information (other than Work Papers) and destroy all Work\nPapers within five business days of the Company's request, unless otherwise required by law; provided, however, that Participant may destroy\nthe Confidential Information and Work Papers in lieu of returning them if the Participant certifies such destruction in writing. Notwithstanding\nthe foregoing, it is agreed that any portion of the Confidential Information that may be found in Work Papers and any other Confidential\nInformation not requested to be returned to the Company, in lieu of being destroyed, may be held by you or your Representatives and kept\nsubject to the terms of this Agreement\n4. Disclaimer\nParticipant acknowledges that (i) no representation or warranty, express or implied, is made by Wachovia, the Company or any of their\nrespective Representatives as to the accuracy or completeness of any of the Confidential Information, (ii) the Confidential Information does\nnot purport to be all-inclusive or to contain all the information a Participant may desire, and (iii) the Company expressly reserves the right at\nits sole discretion to reject any or all proposals for a Possible Transaction and to terminate discussions with any party at any time. The\nParticipant agrees that this Agreement does not obligate the Company, Wachovia or the Company's other Representative's to disclose any\ninformation, including any Confidential Information, negotiate or enter into any agreement or relationship with the Participant. The Participant\nfurther agrees that Wachovia and the Company shall be free to conduct any process for any transaction involving the Company or a Possible\nTransaction, if and as they in their sole discretion shall determine.\n5.\nNo Solicitation\nThe Participant and any of its respective Representatives shall not, for a period of one year from the date hereof, without the prior written\nconsent of the Company, directly or indirectly, solicit to employ or actually employ any of the following officers or employees of the Company\n(such individuals, the "Senior Management Officers"): the Chairman of the Board, the President and Chief Operating Officer and the Chief\nFinancial Officer, except for any Senior Management Officers who are solicited and hired as a result of a general, non-targeted solicitation\n(including a search firm or similar entity) for persons made in the ordinary course of business, or any Senior Management Officers that\ncontacts you on their own initiative without any solicitation or encouragement from you (other than the general, non-targeted solicitations\ndescribed above).\n2 of 6\nLOGO\nLOGO\n6.\nMaterial Non-Public Information\nParticipant acknowledges that Wachovia has informed Participant that the Confidential Information that may be disclosed hereunder by the\nCompany, Wachovia or the Company's other Representatives will likely contain material, non-public information. Each Party acknowledges\nand understands that federal securities law restricts any Person who has material, non-public information from purchasing or selling securities\nof another Person while in possession of material non-public information.\n7. Standstill\nNeither the Participant nor any of its Representatives that has been provided with Confidential Information, for a period of one year from the\ndate of this Agreement, shall in any manner, directly or indirectly, without the prior written consent of the Company's Board of Directors or in\nresponse to a written request from or on behalf of the Company: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or\nannounce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer\nor propose (whether publicly or otherwise) to effect or participate in (i) any acquisition of any voting securities (or beneficial ownership\nthereof), or rights or options to acquire any voting securities (or beneficial ownership thereof), or any assets or businesses of the Company or\nany of its subsidiaries or affiliates, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its\nsubsidiaries or affiliates or the assets of the Company or its subsidiaries or affiliates constituting a significant portion of the consolidated assets\nof\nthe Company and its subsidiaries or affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary\ntransaction with respect to the Company or any of its subsidiaries or affiliates, or (iv) any "solicitation" of "proxies" (as these terms are used\nin\nthe rules and regulations of the Securities and Exchange Commission) or consents to vote any voting securities of the Company or any of its\naffiliates; (b) form, join or in any way participate in a "group" (as defined under the rules and regulations of the Securities and Exchange\nCommission) with respect to the Company or otherwise act in concert with any Person in respect of the Company's securities, without the\nprior written consent of the Chief Executive Officer (or similar senior officer) of the Company; (c) otherwise act, alone or in concert with\nanother Person, to seek representation on or to control or influence the management, board of directors or policies of the Company; (d) take\nany action which would or would reasonably be expected to force the other party to make a public announcement regarding any of the matters\nset forth in (a) above; or (e) enter into any discussions or arrangements with any Person with respect to any of the foregoing. The provisions of\nthe immediately preceding sentence notwithstanding, you may, prior to the expiration of such one year period and subject to applicable laws\n(including applicable rules and regulations of the Securities and Exchange Commission) participate in any of the actions listed in clauses\n(a) through (e) of the immediately preceding sentence if a third party takes any of such actions. The Company shall provide or make available\nto the Participant any information that the Company provides to third parties that are considering a Possible Transaction.\n8. Brokers\nWachovia has been retained by the Company to serve as its exclusive financial advisor with respect to a Possible Transaction and shall be\ncompensated by the Company in connection with any Possible Transaction. Therefore, Participant agrees that neither the Company nor\nWachovia shall be obligated to pay any fees on their behalf to any brokers, finders, or other parties claiming to represent Participant in\nconnection with a Possible Transaction. Additionally, Participant is strictly prohibited\n3 of 6\nLOGO\nLOGO\nby this agreement from acting as a broker or an agent using any of the Confidentia Information provided. Participant shall indemnify and hold\nCompany and Wachovia harmless from and against any claims, causes of action or liabilities, including without limitation, reasonable\nattorneys' fees and court costs which may be incurred with respect to any claims for other real estate commissions, broker's fees or finder's\nfees in relation to or in connection with the Properties to the extent claimed by, through or under Participant.\n9.\nContact with Personnel, Properties or Tenants\nDuring the course of Participant's evaluation of a Possible Transaction, all inquiries and other communications are to be made directly to\nWachovia or an officer of the Company authorized by Wachovia or the Company. Accordingly, Participant will not, and will require its\nRepresentatives not to, contact or attempt to contact any other Representatives, creditors, customers, vendors, suppliers or business partners of\nthe Company concerning or in connection with a Possible Transaction, without the prior, express consent of the Company or Wachovia.\nParticipant agrees that it will not directly or through a third party contact any municipality, governmental agency or quasi-governing body\nregarding the properties involved in a Possible Transaction (the "Properties"). This restriction is not intended to prohibit general inquiries, such\nas non Property-specific inquiries regarding zoning, parking and redevelopment procedures and guidelines for the applicable market area, or\nreview of publicly-available information. In furtherance of the foregoing, Participant agrees that it will not, and will cause its Representatives\nnot to, contact the tenants or Properties' staff without Company's prior written consent. Any and all questions related to the evaluation of the\nProperties must be directed to the Company, Wachovia or the Company's other Representatives. Participant agrees that it will not go to the\nProperties without the prior written consent of Company.\n10. General Terms\nThis Agreement sets forth the parties' entire agreement regarding the subject matter hereof, and supersedes all other representations,\nnegotiations, understandings and agreements, written or oral, between the parties concerning the subject matter hereof. If any provision of this\nAgreement is declared void or unenforceable, such provisions shall be severed from this Agreement, which shall otherwise remain in full force\nand effect. In the event any suit or other action is commenced to enforce any provision of this Agreement, the prevailing party shall be entitled\nto reimbursement for reasonable attorneys' fees and costs if deemed to be appropriate by the adjudicating body. Except as provided in\nParagraphs 2, 5 and 7 hereof, this Agreement shall survive for a period of one (1) year after the date hereof. Participant recognizes that any\nactual or threatened disclosure of Confidential Information in violation of this Agreement will cause the Company irreparable injury and that\nthe\nCompany therefore shall be entitled to injunctive relief, a decree of specific performance or other equitable relief, upon a proper showing\nof such a violation, without the necessity of demonstrating actual monetary damage. The Agreement shall be governed by the laws of the State\nof Delaware. This agreement is binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. Neither the\nfailure nor delay by any party in exercising any right hereunder will operate as a waiver of such right, and no single or partial exercise of a\nright will preclude any other or further exercise of such right. This Agreement may be executed in any number of counterpart signature pages,\nsuch signatures may be delivered by facsimile, portable document format (".pdf") or similar electronic means, and signatures so executed and\ndelivered shall be binding and effective on all parties. If any provision of this Agreement is determined to be illegal, invalid or unenforceable,\nthen it shall be reformed so as to provide the maximum protection available to the Company and its\n4 of 6\nLOGO\nLOGO\nRepresentatives or, if such reformation is not possible, then such provision shall be severed from this Agreement and the remaining provisions\nshall remain in full force and effect. The term "person" means any individual, corporation, partnership, limited liability company, joint venture,\nestate, trust, association, organization, or other entity or governmental body.\n(Signature Pages Follow)\n- 5 of 6 -\nLOGO\nLOGO\nThis Agreement has been executed by the undersigned as of July 16, 2008.\nCOMPANY:\nAMERICAN LAND LEASE, INC.\nBy: /s/ Shannon E. Smith\nName: Shannon E. Smith\nTitle: Chief Financial Officer\nPARTICIPANT:\nGREEN COURTE PARTNERS, LLC\nBy: /s/ James R. Goldman\nName: James R. Goldman\nTitle: Managing Director\nRETURN EXECUTED AGREEMENT TO THE FOLLOWING:\nWachovia Securities\n- 6 of 6 -	EX-99.(D)(4) 12 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nLOGO\nLOGO\nCONFIDENTIALITY AGREEMENT\nWachovia Capital Markets, LLC (“Wachovia”) has been retained by American Land Lease, Inc. (together with any affiliates and subsidiaries, the\n“Company”) to serve as the Company’s exclusive financial advisor in connection with a possible transaction involving the Company, its businesses\nor assets (a “Possible Transaction”). The undersigned (“Participant” or “you”) desires to receive certain information relating to the Company so that\nit may consider and evaluate a Possible Transaction. As a condition to receiving such information, Participant agrees to the following conditions for\nthe benefit of Wachovia and the Company:\n1. Confidential Information\nFor purposes of this Confidentiality Agreement (this “Agreement”), the term “Confidential Information” shall mean any and all information\nmade available to Participant or Participant’s Representatives (as defined below) by the Company, Wachovia or the Company’s other\nRepresentatives relating in any way to the Company or a Possible Transaction (including, but not limited to, any information or offering\nmaterials prepared by Wachovia or the Company) and all Work Papers. However, Confidential Information shall not include information\nwhich (i) is or becomes generally available to the public other than as a result of breach of this Agreement by Participant or by Participant’s\nRepresentatives, (ii) was lawfully in Participant’s or Participant’s Representatives’ possession prior to any disclosure by the Company,\nWachovia or the Company’s other Representatives, or (iii) was provided to Participant or Participant’s Representatives by a third party that was\nnot, to the knowledge of Participant or Participant’s Representatives, bound by any obligation of confidentiality to the Company, Wachovia or\nthe Company’s other Representatives.\nAs used herein, the term “Work Papers” means all notes, analyses, compilations, data, studies, interpretations and other information, whether\nin visual, electronic, written or other form, prepared by you or on your behalf or for your benefit that contain, reflect, summarize, analyze,\ndiscuss or contain any Confidential Information.\nAs used herein, the term “Representatives” means, as to any person, such person’s affiliates and its and their directors, officers, employees,\nshareholders, members, managers, partners, trustees, agents, investors, lenders, representatives and advisors (including, without limit,\nappraisers, environmental consultants, engineers, financial advisors, legal counsel and accountants).\n2. Use of Confidential Information\nParticipant agrees to hold as strictly confidential, and shall require its respective Representatives to hold as strictly confidential, all\nConfidential Information. Participant agrees not to use the Confidential Information, and require its respective Representatives not to use the\nConfidential Information, for any purpose other than evaluating, negotiating and consummating a Possible Transaction. Participant shall not\ndisclose any Confidential Information or the fact that the Confidential Information exists or has been made available, the fact that the\nCompany is considering the Potential Transaction or that discussions are taking place among the Company, Wachovia and the Participant or\nothers regarding a Possible Transaction to third parties except (i) to its Representatives who are assisting Participant in the evaluation of a\nPossible Transaction (“Permitted Parties”),\n- 1of6-\nLOGO\nLOGO\nprovided that each of such Permitted Parties are advised of this Agreement and agree to maintain confidentiality as set forth herein and (ii) to\nthe extent Participant is required by statute, rule, regulation or judicial process; provided that if Participant is required by statute, rule,\nregulation or judicial process to disclose Confidential Information it shall first notify the Company (if legally permitted) so that the Company,\nat the Company’s sole expense, may seek a protective order or other appropriate protections. In the absence of such an order, the Participant\nmay comply with such legal requirements. Participant shall be liable for any breach of this agreement by its respective Representatives. The\nrestrictions on disclosure set forth above (other than the restrictions on disclosure of the Confidential Information itself) shall terminate upon\nthe public disclosure of any transaction involving the Company including a merger, sale of all or substantially all of the Company’s assets or a\nchange in control.\n3. Return of Confidential Information\nParticipant agrees to, and to require its Representatives to, return any Confidential Information (other than Work Papers) and destroy all Work\nPapers within five business days of the Company’s request, unless otherwise required by law; provided, however, that Participant may destroy\nthe Confidential Information and Work Papers in lieu of returning them if the Participant certifies such destruction in writing. Notwithstanding\nthe foregoing, it is agreed that any portion of the Confidential Information that may be found in Work Papers and any other Confidential\nInformation not requested to be returned to the Company, in lieu of being destroyed, may be held by you or your Representatives and kept\nsubject to the terms of this Agreement.\n4. Disclaimer\nParticipant acknowledges that (i) no representation or warranty, express or implied, is made by Wachovia, the Company or any of their\nrespective Representatives as to the accuracy or completeness of any of the Confidential Information, (ii) the Confidential Information does\nnot purport to be all-inclusive or to contain all the information a Participant may desire, and (iii) the Company expressly reserves the right at\nits sole discretion to reject any or all proposals for a Possible Transaction and to terminate discussions with any party at any time. The\nParticipant agrees that this Agreement does not obligate the Company, Wachovia or the Company’s other Representative’s to disclose any\ninformation, including any Confidential Information, negotiate or enter into any agreement or relationship with the Participant. The Participant\nfurther agrees that Wachovia and the Company shall be free to conduct any process for any transaction involving the Company or a Possible\nTransaction, if and as they in their sole discretion shall determine.\n5. No Solicitation\nThe Participant and any of its respective Representatives shall not, for a period of one year from the date hereof, without the prior written\nconsent of the Company, directly or indirectly, solicit to employ or actually employ any of the following officers or employees of the Company\n(such individuals, the “Senior Management Officers”): the Chairman of the Board, the President and Chief Operating Officer and the Chief\nFinancial Officer, except for any Senior Management Officers who are solicited and hired as a result of a general, non-targeted solicitation\n(including a search firm or similar entity) for persons made in the ordinary course of business, or any Senior Management Officers that\ncontacts you on their own initiative without any solicitation or encouragement from you (other than the general, non-targeted solicitations\ndescribed above).\n- 2of6-\nLOGO\nLOGO\n6. Material Non-Public Information\nParticipant acknowledges that Wachovia has informed Participant that the Confidential Information that may be disclosed hereunder by the\nCompany, Wachovia or the Company’s other Representatives will likely contain material, non-public information. Each Party acknowledges\nand understands that federal securities law restricts any Person who has material, non-public information from purchasing or selling securities\nof another Person while in possession of material non-public information.\n7. Standstill\nNeither the Participant nor any of its Representatives that has been provided with Confidential Information, for a period of one year from the\ndate of this Agreement, shall in any manner, directly or indirectly, without the prior written consent of the Company’s Board of Directors or in\nresponse to a written request from or on behalf of the Company: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or\nannounce any intention to effect or cause or participate in or in any way assist, facilitate or encourage any other Person to effect or seek, offer\nor propose (whether publicly or otherwise) to effect or participate in (i) any acquisition of any voting securities (or beneficial ownership\nthereof), or rights or options to acquire any voting securities (or beneficial ownership thereof), or any assets or businesses of the Company or\nany of its subsidiaries or affiliates, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its\nsubsidiaries or affiliates or the assets of the Company or its subsidiaries or affiliates constituting a significant portion of the consolidated assets\nof the Company and its subsidiaries or affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary\ntransaction with respect to the Company or any of its subsidiaries or affiliates, or (iv) any “solicitation” of “proxies” (as these terms are used in\nthe rules and regulations of the Securities and Exchange Commission) or consents to vote any voting securities of the Company or any of its\naffiliates; (b) form, join or in any way participate in a “group” (as defined under the rules and regulations of the Securities and Exchange\nCommission) with respect to the Company or otherwise act in concert with any Person in respect of the Company’s securities, without the\nprior written consent of the Chief Executive Officer (or similar senior officer) of the Company; (c) otherwise act, alone or in concert with\nanother Person, to seek representation on or to control or influence the management, board of directors or policies of the Company; (d) take\nany action which would or would reasonably be expected to force the other party to make a public announcement regarding any of the matters\nset forth in (a) above; or (e) enter into any discussions or arrangements with any Person with respect to any of the foregoing. The provisions of\nthe immediately preceding sentence notwithstanding, you may, prior to the expiration of such one year period and subject to applicable laws\n(including applicable rules and regulations of the Securities and Exchange Commission) participate in any of the actions listed in clauses\n(a) through (e) of the immediately preceding sentence if a third party takes any of such actions. The Company shall provide or make available\nto the Participant any information that the Company provides to third parties that are considering a Possible Transaction.\n8. Brokers\nWachovia has been retained by the Company to serve as its exclusive financial advisor with respect to a Possible Transaction and shall be\ncompensated by the Company in connection with any Possible Transaction. Therefore, Participant agrees that neither the Company nor\nWachovia shall be obligated to pay any fees on their behalf to any brokers, finders, or other parties claiming to represent Participant in\nconnection with a Possible Transaction. Additionally, Participant is strictly prohibited\n- 3of6-\nLOGO\nLOGO\nby this agreement from acting as a broker or an agent using any of the Confidential Information provided. Participant shall indemnify and hold\nCompany and Wachovia harmless from and against any claims, causes of action or liabilities, including without limitation, reasonable\nattorneys’ fees and court costs which may be incurred with respect to any claims for other real estate commissions, broker’s fees or finder’s\nfees in relation to or in connection with the Properties to the extent claimed by, through or under Participant.\n9. Contact with Personnel, Properties or Tenants\nDuring the course of Participant’s evaluation of a Possible Transaction, all inquiries and other communications are to be made directly to\nWachovia or an officer of the Company authorized by Wachovia or the Company. Accordingly, Participant will not, and will require its\nRepresentatives not to, contact or attempt to contact any other Representatives, creditors, customers, vendors, suppliers or business partners of\nthe Company concerning or in connection with a Possible Transaction, without the prior, express consent of the Company or Wachovia.\nParticipant agrees that it will not directly or through a third party contact any municipality, governmental agency or quasi-governing body\nregarding the properties involved in a Possible Transaction (the “Properties”). This restriction is not intended to prohibit general inquiries, such\nas non Property-specific inquiries regarding zoning, parking and redevelopment procedures and guidelines for the applicable market area, or\nreview of publicly-available information. In furtherance of the foregoing, Participant agrees that it will not, and will cause its Representatives\nnot to, contact the tenants or Properties’ staff without Company’s prior written consent. Any and all questions related to the evaluation of the\nProperties must be directed to the Company, Wachovia or the Company’s other Representatives. Participant agrees that it will not go to the\nProperties without the prior written consent of Company.\n10. General Terms\nThis Agreement sets forth the parties’ entire agreement regarding the subject matter hereof, and supersedes all other representations,\nnegotiations, understandings and agreements, written or oral, between the parties concerning the subject matter hereof. If any provision of this\nAgreement is declared void or unenforceable, such provisions shall be severed from this Agreement, which shall otherwise remain in full force\nand effect. In the event any suit or other action is commenced to enforce any provision of this Agreement, the prevailing party shall be entitled\nto reimbursement for reasonable attorneys’ fees and costs if deemed to be appropriate by the adjudicating body. Except as provided in\nParagraphs 2, 5 and 7 hereof, this Agreement shall survive for a period of one (1) year after the date hereof. Participant recognizes that any\nactual or threatened disclosure of Confidential Information in violation of this Agreement will cause the Company irreparable injury and that\nthe Company therefore shall be entitled to injunctive relief, a decree of specific performance or other equitable relief, upon a proper showing\nof such a violation, without the necessity of demonstrating actual monetary damage. The Agreement shall be governed by the laws of the State\nof Delaware. This agreement is binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. Neither the\nfailure nor delay by any party in exercising any right hereunder will operate as a waiver of such right, and no single or partial exercise of a\nright will preclude any other or further exercise of such right. This Agreement may be executed in any number of counterpart signature pages,\nsuch signatures may be delivered by facsimile, portable document format (“.pdf”) or similar electronic means, and signatures so executed and\ndelivered shall be binding and effective on all parties. If any provision of this Agreement is determined to be illegal, invalid or unenforceable,\nthen it shall be reformed so as to provide the maximum protection available to the Company and its\n- 4of6-\nLOGO\nLOGO\nRepresentatives or, if such reformation is not possible, then such provision shall be severed from this Agreement and the remaining provisions\nshall remain in full force and effect. The term “person” means any individual, corporation, partnership, limited liability company, joint venture,\nestate, trust, association, organization, or other entity or governmental body.\n(Signature Pages Follow)\n- 5of6-\nLOGO\nLOGO\nThis Agreement has been executed by the undersigned as of July 16, 2008.\nCOMPANY:\nAMERICAN LAND LEASE, INC.\nBy: /s/ Shannon E. Smith\nName:\nTitle:\nShannon E. Smith\nChief Financial Officer\nPARTICIPANT:\nGREEN COURTE PARTNERS, LLC\nBy: /s/ James R. Goldman\nName:\nTitle:\nJames R. Goldman\nManaging Director\nRETURN EXECUTED AGREEMENT TO THE FOLLOWING:\nWachovia Securities\n- 6of6-
+266929af5f5b1ddb4018f2633cb96e24.pdf	effective_date jurisdiction party term	EX-10.13 3 y31303a1exv10w13.htm EX-10.13: NON-CIRCUMVENTION/NON-DISCLOSURE AGREEMENT\nExhibit 10.13\nNon-Circumvention/Non-Disclosure Agreement\nThis Non-Circumvention/Non-Disclosure Agreement is made as of this 1st day of January 2004, by and between Flow Capital Advisors, Inc.,\nhaving is principal place of business at 3727 Pine Lake Drive, Weston, FL 33332 (hereinafter “Finder”), and JAG Media Holdings, Inc., having\nits principal place of business at 6865 SW 18th Street, Suite B-13 Boca Raton, Florida 33433 (“hereinafter “Jag”).\n1. Pursuant to discussions between Flow and Jag, Flow has disclosed to Jag that certain parties, some of whom who have been identified to\nJag and others who have yet to be identified by Flow to Jag (the “Introduced Parties”), may be interested in entering into certain transactions with\nJag.\n2. Jag agrees that once Flow has disclosed the Identity of any Introduced Party to Jag, Jag, its officers, directors, shareholders, employees and\nagents shall not have any contacts with the Introduced Party other than through Flow, unless Flow grants permission in writing for such contacts.\nSpecifically, Jag agrees not to circumvent, avoid or bypass Flow, either directly or indirectly, in order to avoid payment of fees or commissions;\nor otherwise benefit, either financially or otherwise, from any information supplied to it in the context of any transaction with an Introduced\nParty.\n3. This Agreement shall be governed by and construed and enforced in accordance local laws of the State of Florida applicable to agreements\nmade and to be performed within the State, without regard to conflict of laws principles thereof.\n4. This Agreement shall inure to the benefit of, and is binding upon, the parties hereto and their respective principals, shareholders, heirs,\nofficers, representatives, successors and assigns.\n5. No waiver of any provisions hereof shall be valid unless it is in writing signed by the person against whom it is charged. No waiver of any\nprovision herein shall constitute a waiver of any other provision hereof, or of the provision at any other time.\n6. This is an agreement between separate legal entities and neither is the agent or employee of the other for any purpose whatsoever. The\nparties do not intend to create a partnership or joint venture between themselves. Neither party shall have the right to bind the other to any\nagreement with a third party or to inure any obligation or liabilities on behalf of the other party.\n7. This Agreement contains the whole agreement between the parties concerning the subject matter hereof and there are no collateral or\nprecedent representation, agreements or conditions not specifically set forth herein.\n8. Any modification or amendment of any provisions of this Agreement must be in writing, signed by the parties hereof and dated subsequent\nto the date hereof.\n9. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever;\n1\n(i) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of\nany Section of this Agreement containing any such provisions held to be invalid, illegal or unenforceable) shall not in any way be\neffected or impaired thereby; and\n(ii) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this\nAgreement containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the\nintent manifested by the provision held, invalid illegal or unenforceable.\nIN WITNESS WHEREOF, the partied hereto have executed this Non-Circumvention/Non-Disclosure agreement on the day, month and year\nfirst written above.\nFlow Capital Advisor, Inc.\nJAG Media Holding, Inc.\nBy: /s/ Albert Auer\nBy: /s/ Thomas J. Mazzarisi\nName: Albert Auer\nName: Thomas J. Mazzarisi\nTitle: President\nTitle: Chairman & CEO\n2	EX-10.13 3 y31303alexv10w13.htm EX-10.13: NON-CIRCUMVENTION/NON-DISCLOSURE AGREEMENT\nExhibit 10.13\nNon-Circumvention/Non-Disclosure Agreement\nThis Non-Circumvention/Non-Disclosure Agreement is made as of this 1st day of January 2004, by and between Flow Capital Advisors, Inc.,\nhaving is principal place of business at 3727 Pine Lake Drive, Weston, FL 33332 (hereinafter “Finder”), and JAG Media Holdings, Inc., having\nits principal place of business at 6865 SW 18th Street, Suite B-13 Boca Raton, Florida 33433 (“hereinafter “Jag”).\n1. Pursuant to discussions between Flow and Jag, Flow has disclosed to Jag that certain parties, some of whom who have been identified to\nJag and others who have yet to be identified by Flow to Jag (the “Introduced Parties”), may be interested in entering into certain transactions with\nJag.\n2. Jag agrees that once Flow has disclosed the Identity of any Introduced Party to Jag, Jag, its officers, directors, shareholders, employees and\nagents shall not have any contacts with the Introduced Party other than through Flow, unless Flow grants permission in writing for such contacts.\nSpecifically, Jag agrees not to circumvent, avoid or bypass Flow, either directly or indirectly, in order to avoid payment of fees or commissions;\nor otherwise benefit, either financially or otherwise, from any information supplied to it in the context of any transaction with an Introduced\nParty.\n3. This Agreement shall be governed by and construed and enforced in accordance local laws of the State of Florida applicable to agreements\nmade and to be performed within the State, without regard to conflict of laws principles thereof.\n4. This Agreement shall inure to the benefit of, and is binding upon, the parties hereto and their respective principals, shareholders, heirs,\nofficers, representatives, successors and assigns.\n5. No waiver of any provisions hereof shall be valid unless it is in writing signed by the person against whom it is charged. No waiver of any\nprovision herein shall constitute a waiver of any other provision hereof, or of the provision at any other time.\n6. This is an agreement between separate legal entities and neither is the agent or employee of the other for any purpose whatsoever. The\nparties do not intend to create a partnership or joint venture between themselves. Neither party shall have the right to bind the other to any\nagreement with a third party or to inure any obligation or liabilities on behalf of the other party.\n7. This Agreement contains the whole agreement between the parties concerning the subject matter hereof and there are no collateral or\nprecedent representation, agreements or conditions not specifically set forth herein.\n8. Any modification or amendment of any provisions of this Agreement must be in writing, signed by the parties hereof and dated subsequent\nto the date hereof.\n9. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever;\n1\n(i) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of\nany Section of this Agreement containing any such provisions held to be invalid, illegal or unenforceable) shall not in any way be\neffected or impaired thereby; and\n(ii) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this\nAgreement containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the\nintent manifested by the provision held, invalid illegal or unenforceable.\nIN WITNESS WHEREQF, the partied hereto have executed this Non-Circumvention/Non-Disclosure agreement on the day, month and year\nfirst written above.\nFlow Capital Advisor, Inc. JAG Media Holding, Inc.\nBy: /s/ Albert Auer By: /s/ Thomas J. Mazzarisi\nName: Albert Auer Name: Thomas J. Mazzarisi\nTitle: President Title: Chairman & CEO	EX-10.13 3 y31303a1exv10w13.htm EX-10.13: NON-CIRCUMVENTIONNON-DISCLOSURE AGREEMENT\nExhibit 10.13\nNon-Circumvention/Non-Disclosure Agreement\nThis Non-Circumvention/Non-Disclosure Agreement is made as of this 1st day of January 2004, by and between Flow Capital Advisors, Inc.,\nhaving is principal place of business at 3727 Pine Lake Drive, Weston, FL 33332 (hereinafter "Finder"), and JAG Media Holdings, Inc., having\nits principal place of business at 6865 SW 18th Street, Suite B-13 Boca Raton, Florida 33433 ("hereinafter "Jag").\n1. Pursuant to discussions between Flow and Jag, Flow has disclosed to Jag that certain parties, some of whom who have been identified to\nJag and others who have yet to be identified by Flow to Jag (the "Introduced Parties"), may be interested in entering into certain transactions with\nJag.\n2. Jag agrees that once Flow has disclosed the Identity of any Introduced Party to Jag, Jag, its officers, directors, shareholders, employees and\nagents shall not have any contacts with the Introduced Party other than through Flow, unless Flow grants permission in writing for such contacts.\nSpecifically, Jag agrees not to circumvent, avoid or bypass Flow, either directly or indirectly, in order to avoid payment of fees or commissions;\nor otherwise benefit, either financially or otherwise, from any information supplied to it in the context of any transaction with an Introduced\nParty.\n3. This Agreement shall be governed by and construed and enforced in accordance local laws of the State of Florida applicable to agreements\nmade and to be performed within the State, without regard to conflict of laws principles thereof.\n4. This Agreement shall inure to the benefit of, and is binding upon, the parties hereto and their respective principals, shareholders, heirs,\nofficers, representatives, successors and assigns.\n5. No waiver of any provisions hereof shall be valid unless it is in writing signed by the person against whom it is charged. No waiver of any\nprovision herein shall constitute a waiver of any other provision hereof, or of the provision at any other time.\n6. This is an agreement between separate legal entities and neither is the agent or employee of the other for any purpose whatsoever. The\nparties do not intend to create a partnership or joint venture between themselves. Neither party shall have the right to bind the other to any\nagreement with a third party or to inure any obligation or liabilities on behalf of the other party.\n7. This Agreement contains the whole agreement between the parties concerning the subject matter hereof and there are no collateral or\nprecedent representation, agreements or conditions not specifically set forth herein.\n8. Any modification or amendment of any provisions of this Agreement must be in writing, signed by the parties hereof and dated subsequent\nto the date hereof.\n9. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever;\n1\n(i)\nthe validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of\nany Section of this Agreement containing any such provisions held to be invalid illegal or unenforceable) shall not in any way be\neffected or impaired thereby; and\n(ii)\nto the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this\nAgreement containing any such provision held to be invalid, illegal or unenforceable) shall be construed SO as to give effect to the\nintent manifested by the provision held, invalid illegal or unenforceable.\nIN WITNESS WHEREOF, the partied hereto have executed this Non-Circumvention/Non-Disclosure agreement on the day, month and year\nfirst written above.\nFlow Capital Advisor, Inc.\nJAG Media Holding, Inc.\nBy: /s/ Albert Auer\nBy: /s/ Thomas J. Mazzarisi\nName: Albert Auer\nName: Thomas J. Mazzarisi\nTitle: President\nTitle: Chairman & CEO\n2	EX-10.13 3 y31303a1exv10w13.htm EX-10.13: NON-CIRCUMVENTION/NON-DISCLOSURE AGREEMENT\nExhibit 10.13\nNon-Circumvention/Non-Disclosure Agreement\nThis Non-Circumvention/Non-Disclosure Agreement is made as of this 1st day of January 2004, by and between Flow Capital Advisors, Inc.,\nhaving is principal place of business at 3727 Pine Lake Drive, Weston, FL 33332 (hereinafter “Finder”), and JAG Media Holdings, Inc., having\nits principal place of business at 6865 SW 18th Street, Suite B-13 Boca Raton, Florida 33433 (“hereinafter “Jag”).\n1. Pursuant to discussions between Flow and Jag, Flow has disclosed to Jag that certain parties, some of whom who have been identified to\nJag and others who have yet to be identified by Flow to Jag (the “Introduced Parties”), may be interested in entering into certain transactions with\nJag.\n2. Jag agrees that once Flow has disclosed the Identity of any Introduced Party to Jag, Jag, its officers, directors, shareholders, employees and\nagents shall not have any contacts with the Introduced Party other than through Flow, unless Flow grants permission in writing for such contacts.\nSpecifically, Jag agrees not to circumvent, avoid or bypass Flow, either directly or indirectly, in order to avoid payment of fees or commissions;\nor otherwise benefit, either financially or otherwise, from any information supplied to it in the context of any transaction with an Introduced\nParty.\n3. This Agreement shall be governed by and construed and enforced in accordance local laws of the State of Florida applicable to agreements\nmade and to be performed within the State, without regard to conflict of laws principles thereof.\n4. This Agreement shall inure to the benefit of, and is binding upon, the parties hereto and their respective principals, shareholders, heirs,\nofficers, representatives, successors and assigns.\n5. No waiver of any provisions hereof shall be valid unless it is in writing signed by the person against whom it is charged. No waiver of any\nprovision herein shall constitute a waiver of any other provision hereof, or of the provision at any other time.\n6. This is an agreement between separate legal entities and neither is the agent or employee of the other for any purpose whatsoever. The\nparties do not intend to create a partnership or joint venture between themselves. Neither party shall have the right to bind the other to any\nagreement with a third party or to inure any obligation or liabilities on behalf of the other party.\n7. This Agreement contains the whole agreement between the parties concerning the subject matter hereof and there are no collateral or\nprecedent representation, agreements or conditions not specifically set forth herein.\n8. Any modification or amendment of any provisions of this Agreement must be in writing, signed by the parties hereof and dated subsequent\nto the date hereof.\n9. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever;\n1\n(i) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of\nany Section of this Agreement containing any such provisions held to be invalid, illegal or unenforceable) shall not in any way be\neffected or impaired thereby; and\n(ii) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this\nAgreement containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the\nintent manifested by the provision held, invalid illegal or unenforceable.\nIN WITNESS WHEREOF, the partied hereto have executed this Non-Circumvention/Non-Disclosure agreement on the day, month and year\nfirst written above.\nFlow Capital Advisor, Inc.\nJAG Media Holding, Inc.\nBy: /s/ Albert Auer\nBy: /s/ Thomas J. Mazzarisi\nName: Albert Auer\nName: Thomas J. Mazzarisi\nTitle: President\nTitle: Chairman & CEO\n2
+27b955a478a15230f33f70498cc8414c.pdf	effective_date jurisdiction party term	EX-10 .4 .3 18 v321826_ex10-4x3.htm EXHIBIT 10.4 .3\nINVENTION, NON-DISCLOSURE, AND NON-SOLICITATION AGREEMENT\nThis Invention, Non-Disclosure, and Non-Solicitation Agreement is made by and between Intercept Pharmaceuticals, Inc. (the "Company") and\nMark Pruzanski (the "Employee"). The agreement is retro-active with the effective date being the employee's date of hire, September 4, 2002.\nIN CONSIDERATION of the Employee's employment by the Company, and for other good and valuable consideration, the sufficiency of which\nis hereby acknowledged, the Employee agrees as follows:\n1. Condition of Employment.\nThe Employee acknowledges that her employment with the Company is contingent upon her agreement to sign and adhere to the provisions of\nthis Invention, Non-Disclosure, and Non-Solicitation Agreement (the "Agreement").\n2. Proprietary and Confidential Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the Company's\nbusiness, business relationships or financial affairs (collectively, "Proprietary Information") is and shall be the exclusive property of the\nCompany. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods, techniques,\nformulas, compositions, compounds, projects, developments, plans (including business and marketing plans), research data, clinical data,\nfinancial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used pursuant to a license\nagreement), customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will\nnot disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other\nthan in the performance of his/her duties as an employee of the Company) without written approval by an officer of the Company, either during\nor after her employment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the\nEmployee.\n(b) The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models, laboratory notebooks,\nprogram listings, computer equipment or devices, computer programs or other written, photographic, or other tangible material containing\nProprietary Information, whether created by the Employee or others, which shall come into his/her custody or possession, shall be and are the\nexclusive property of the Company to be used by the Employee only in the performance of his/her duties for the Company and shall not be\ncopied or removed from the Company premises except in the pursuit of the business of the Company. All such materials or copies thereof and all\ntangible property of the Company in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (i) a\nrequest by the Company or (ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or\ncopies thereof or any such tangible property.\n(c) The Employee agrees that her obligation not to disclose or to use information and materials of the types set forth in paragraphs (a) and (b)\nabove, and her obligation to return materials and tangible property set forth in paragraph (b) above also extends to such types of information,\nmaterials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have disclosed or\nentrusted the same to the Company or to the Employee.\n3. Inventions.\n(a) The Employee will make full and prompt disclosure to the Company of all inventions, creations, improvements, discoveries, trade secrets,\nsecret processes, technology, know-how, methods, developments, software, and works of authorship or other creative works, whether patentable\nor not, which are created, made, conceived or reduced to practice by the Employee or under the Employee's direction or jointly with others\nduring her employment by the Company, whether or not during normal working hours or on the premises of the Company (all of which are\ncollectively referred to in this Agreement as "Inventions").\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all her right,\ntitle and interest in and to all Inventions and all related patents, patent applications, copyrights and copyright applications to the maximum extent\npermitted by the laws of the State of New York or any like statute of any other state. The Employee hereby also waives all claims to moral rights\nin any Inventions. The Employee understands that the provisions of this Agreement requiring assignment of Inventions to the Company do not\napply to any invention which qualifies fully under the provisions of the laws of the State of New York. The Employee agrees to advise the\nCompany promptly in writing of any inventions that she believes meets the criteria in the laws of the State of New York.\n(c) The Employee agrees to cooperate fully with the Company and to take such further actions as may be necessary or desirable, both during and\nafter her employment with the Company, with respect to the procurement, maintenance and enforcement of copyrights, patents and other\nintellectual property rights (both in the United States and foreign countries) relating to Inventions. The Employee shall sign all papers, including,\nwithout limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignments of priority rights, and powers\nof attorney, which the Company may deem necessary or desirable in order to protect its rights and interests in any Invention. The Employee\nfurther agrees that if the Company is unable, after reasonable effort, to secure the signature of the Employee on any such papers, any executive\nofficer of the Company shall be entitled to execute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee\nhereby irrevocably designates and appoints each executive officer of the Company as her agent and attorney-infact to execute any such papers on\nher behalf, and to take any and all actions as the Company may deem necessary or desirable in order to protect its rights and interests in any\nInvention, under the conditions described in this sentence.\n4. Non-Solicitation.\n(a) While employed by the Company and for a period of one (1) year after the termination or cessation of Employee’s employment for any\nreason, the Employee will not, directly or indirectly, either alone or in association with others, recruit or solicit any person who was employed by\nthe Company or engaged as an independent contractor at any time during the period of the Employee's employment with the Company, except\nfor an individual whose employment with or service for the Company has been terminated for a period of six months or longer.\n(b) If any restriction set forth in this Section 4 is found by any court of competent jurisdiction to be unenforceable because it extends for too long\na period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum\nperiod of time, range of activities or geographic area as to which it may be enforceable.\n(c) The geographic scope of this Section shall extend to anywhere the Company or any of its subsidiaries is doing business, has done business or\nhas plans to do business.\n(d) If the Employee violates the provisions of this Section, the Employee shall continue to be held by the restrictions set forth in this Section,\nuntil a period equal to the period of restriction has expired without any violation.\n5. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the terms\nof any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the business of such\nprevious employer or any other party, or to refrain from soliciting employees, customers or suppliers of such previous employer or other party.\nThe Employee further represents that his/her performance of all the terms of this Agreement and the performance of her duties as an employee of\nthe Company do not and will not breach any agreement with any prior employer or other party to which the Employee is a party (including\nwithout limitation any non-disclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the\nCompany to use any confidential or proprietary information or material belonging to any previous employer or others.\n6. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions that are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n7. Not An Employment Contract.\nThe Employee acknowledges that this Agreement does not constitute a contract of employment, either express or implied, and does not imply\nthat the Company will continue the Employee’s employment for any period of time.\n8. General Provisions.\n(a) No Conflict. The Employee represents that the execution and performance by him/her of this Agreement does not and will not conflict with or\nbreach the terms of any other agreement by which the Employee is bound.\n(b) Entire Agreement. This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation\nafter the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect or impair the validity or enforceability of\nany other provision of this Agreement.\n(d) Waiver. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) Employee Acknowledgment and Equitable Remedies. The Employee acknowledges that the restrictions contained in this Agreement are\nnecessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose.\nThe Employee agrees that any breach of this Agreement is likely to cause the Company substantial and irrevocable damage and therefore, in the\nevent of any breach or threatened breach of this Agreement, the Employee agrees that the Company, in addition to such other remedies that may\nbe available, shall be entitled to specific performance and other injunctive relief without posting a bond, and the Employee hereby waives the\nadequacy of a remedy at law as a defense to such relief.\n(f) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and\nassigns, including any corporation or entity with which or into which the Company may be merged or which may succeed to all or substantially\nall of its assets or business, provided however that the obligations of the Employee are personal and shall not be assigned by the Employee.\n(g) Subsidiaries and Affiliates. The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company\nor any subsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at\nthe time of such transfer.\n(h) Governing Law, Forum and Jurisdiction. This Agreement shall be governed by and construed as a sealed instrument under and in accordance\nwith the laws of the State of New York without regard to conflict of laws provisions. Any action, suit, or other legal proceeding which is\ncommenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the State of\nNew York (or, if appropriate, a federal court located within New York), and the Company and the Employee each consents to the jurisdiction of\nsuch a court.\n(i) Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope\nor substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nWITNESS our hands and seals:\nINTERCEPT PHARMACEUTICALS, INC.\n/s/ Barbara Duncan\n12/31/09\nBy: Barbara Duncan, CFO\nDate\n/s/ Mark Pruzanski\nDec. 31, 2009\nBy: Mark Pruzanski\nDate	EX-10.4.3 18 v321826_ex10-4x3.htm EXHIBIT 10.4.3\nINVENTION, NON-DISCLOSURE, AND NON-SOLICITATION AGREEMENT\nThis Invention, Non-Disclosure, and Non-Solicitation Agreement is made by and between Intercept Pharmaceuticals, Inc. (the "Company") and\nMark Pruzanski (the "Employee"). The agreement is retro-active with the effective date being the employee's date of hire, September 4, 2002.\nIN CONSIDERATION of the Employee's employment by the Company, and for other good and valuable consideration, the sufficiency of which\nis hereby acknowledged, the Employee agrees as follows:\n1. Condition of Employment.\nThe Employee acknowledges that her employment with the Company is contingent upon her agreement to sign and adhere to the provisions of\nthis Invention, Non-Disclosure, and Non-Solicitation Agreement (the "Agreement").\n2. Proprietary and Confidential Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the Company's\nbusiness, business relationships or financial affairs (collectively, "Proprietary Information") is and shall be the exclusive property of the\nCompany. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods, techniques,\nformulas, compositions, compounds, projects, developments, plans (including business and marketing plans), research data, clinical data,\nfinancial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used pursuant to a license\nagreement), customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will\nnot disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other\nthan in the performance of his/her duties as an employee of the Company) without written approval by an officer of the Company, either during\nor after her employment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the\nEmployee.\n(b) The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models, laboratory notebooks,\nprogram listings, computer equipment or devices, computer programs or other written, photographic, or other tangible material containing\nProprietary Information, whether created by the Employee or others, which shall come into his/her custody or possession, shall be and are the\nexclusive property of the Company to be used by the Employee only in the performance of his/her duties for the Company and shall not be\ncopied or removed from the Company premises except in the pursuit of the business of the Company. All such materials or copies thereof and all\ntangible property of the Company in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (i) a\nrequest by the Company or (ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or\ncopies thereof or any such tangible property.\n(c) The Employee agrees that her obligation not to disclose or to use information and materials of the types set forth in paragraphs (a) and (b)\nabove, and her obligation to return materials and tangible property set forth in paragraph (b) above also extends to such types of information,\nmaterials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have disclosed or\nentrusted the same to the Company or to the Employee.\n3. Inventions.\n(a) The Employee will make full and prompt disclosure to the Company of all inventions, creations, improvements, discoveries, trade secrets,\nsecret processes, technology, know-how, methods, developments, software, and works of authorship or other creative works, whether patentable\nor not, which are created, made, conceived or reduced to practice by the Employee or under the Employee's direction or jointly with others\nduring her employment by the Company, whether or not during normal working hours or on the premises of the Company (all of which are\ncollectively referred to in this Agreement as "Inventions").\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all her right,\ntitle and interest in and to all Inventions and all related patents, patent applications, copyrights and copyright applications to the maximum extent\npermitted by the laws of the State of New York or any like statute of any other state. The Employee hereby also waives all claims to moral rights\nin any Inventions. The Employee understands that the provisions of this Agreement requiring assignment of Inventions to the Company do not\napply to any invention which qualifies fully under the provisions of the laws of the State of New York. The Employee agrees to advise the\nCompany promptly in writing of any inventions that she believes meets the criteria in the laws of the State of New York.\n(c) The Employee agrees to cooperate fully with the Company and to take such further actions as may be necessary or desirable, both during and\nafter her employment with the Company, with respect to the procurement, maintenance and enforcement of copyrights, patents and other\nintellectual property rights (both in the United States and foreign countries) relating to Inventions. The Employee shall sign all papers, including,\nwithout limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignments of priority rights, and powers\nof attorney, which the Company may deem necessary or desirable in order to protect its rights and interests in any Invention. The Employee\nfurther agrees that if the Company is unable, after reasonable effort, to secure the signature of the Employee on any such papers, any executive\nofficer of the Company shall be entitled to execute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee\nhereby irrevocably designates and appoints each executive officer of the Company as her agent and attorney-infact to execute any such papers on\nher behalf, and to take any and all actions as the Company may deem necessary or desirable in order to protect its rights and interests in any\nInvention, under the conditions described in this sentence.\n4. Non-Solicitation.\n(a) While employed by the Company and for a period of one (1) year after the termination or cessation of Employee’s employment for any\nreason, the Employee will not, directly or indirectly, either alone or in association with others, recruit or solicit any person who was employed by\nthe Company or engaged as an independent contractor at any time during the period of the Employee's employment with the Company, except\nfor an individual whose employment with or service for the Company has been terminated for a period of six months or longer.\n(b) If any restriction set forth in this Section 4 is found by any court of competent jurisdiction to be unenforceable because it extends for too long\na period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum\nperiod of time, range of activities or geographic area as to which it may be enforceable.\n(c) The geographic scope of this Section shall extend to anywhere the Company or any of its subsidiaries is doing business, has done business or\nhas plans to do business.\n(d) If the Employee violates the provisions of this Section, the Employee shall continue to be held by the restrictions set forth in this Section,\nuntil a period equal to the period of restriction has expired without any violation.\n5. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the terms\nof any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the business of such\nprevious employer or any other party, or to refrain from soliciting employees, customers or suppliers of such previous employer or other party.\nThe Employee further represents that his/her performance of all the terms of this Agreement and the performance of her duties as an employee of\nthe Company do not and will not breach any agreement with any prior employer or other party to which the Employee is a party (including\nwithout limitation any non-disclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the\nCompany to use any confidential or proprietary information or material belonging to any previous employer or others.\n6. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions that are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n7. Not An Employment Contract.\nThe Employee acknowledges that this Agreement does not constitute a contract of employment, either express or implied, and does not imply\nthat the Company will continue the Employee’s employment for any period of time.\n8. General Provisions.\n(a) No Conflict. The Employee represents that the execution and performance by him/her of this Agreement does not and will not conflict with or\nbreach the terms of any other agreement by which the Employee is bound.\n(b) Entire Agreement. This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation\nafter the signing of this Agreement shall not affect the validity or scope of this Agreement.\n \n(c) Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect or impair the validity or enforceability of\nany other provision of this Agreement.\n(d) Waiver. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\nnecessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose.\nThe Employee agrees that any breach of this Agreement is likely to cause the Company substantial and irrevocable damage and therefore, in the\nevent of any breach or threatened breach of this Agreement, the Employee agrees that the Company, in addition to such other remedies that may\nbe available, shall be entitled to specific performance and other injunctive relief without posting a bond, and the Employee hereby waives the\nadequacy of a remedy at law as a defense to such relief.\n(f) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and\nassigns, including any corporation or entity with which or into which the Company may be merged or which may succeed to all or substantially\nall of its assets or business, provided however that the obligations of the Employee are personal and shall not be assigned by the Employee.\n(g) Subsidiaries and Affiliates. The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company\nor any subsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at\nthe time of such transfer.\n(h) Governing Law, Forum and Jurisdiction. This Agreement shall be governed by and construed as a sealed instrument under and in accordance\nwith the laws of the State of New York without regard to conflict of laws provisions. Any action, suit, or other legal proceeding which is\ncommenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the State of\nNew York (or, if appropriate, a federal court located within New York), and the Company and the Employee each consents to the jurisdiction of\nsuch a court.\n(i) Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope\nor substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nWITNESS our hands and seals:\nINTERCEPT PHARMACEUTICALS, INC.\n/s/ Barbara Duncan 12/31/09\nBy: Barbara Duncan, CFO Date\n/s/ Mark Pruzanski Dec. 31, 2009\nBy: Mark Pruzanski Date	EX-10.4.3 18 v321826_ex10-4x3.htm EXHIBIT 10.4.3\nINVENTION, NON-DISCLOSURE, AND NON-SOLICITATION AGREEMENT\nThis Invention, Non-Disclosure, and Non-Solicitation Agreement is made by and between Intercept Pharmaceuticals, Inc. (the "Company") and\nMark Pruzanski (the "Employee"). The agreement is retro-active with the effective date being the employee's date of hire, September 4, 2002.\nIN CONSIDERATION of the Employee's employment by the Company, and for other good and valuable consideration, the sufficiency of which\nis hereby acknowledged, the Employee agrees as follows:\n1. Condition of Employment.\nThe Employee acknowledges that her employment with the Company is contingent upon her agreement to sign and adhere to the provisions of\nthis Invention, Non-Disclosure, and Non-Solicitation Agreement (the "Agreement").\n2. Proprietary and Confidential Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the Company's\nbusiness, business relationships or financial affairs (collectively, "Proprietary Information") is and shall be the exclusive property of the\nCompany. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods, techniques,\nformulas, compositions, compounds, projects, developments, plans (including business and marketing plans), research data, clinical data,\nfinancial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used pursuant to a license\nagreement), customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee\nwill\nnot disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other\nthan in the performance of his/her duties as an employee of the Company) without written approval by an officer of the Company, either during\nor after her employment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the\nEmployee.\n(b) The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models, laboratory notebooks,\nprogram listings, computer equipment or devices, computer programs or other written, photographic, or other tangible material containing\nProprietary Information, whether created by the Employee or others, which shall come into his/her custody or possession, shall be and are the\nexclusive property of the Company to be used by the Employee only in the performance of his/her duties for the Company and shall not be\ncopied or removed from the Company premises except in the pursuit of the business of the Company. All such materials or copies thereof and\nall\ntangible property of the Company in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (i) a\nrequest by the Company or (ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or\ncopies thereof or any such tangible property.\n(c) The Employee agrees that her obligation not to disclose or to use information and materials of the types set forth in paragraphs (a) and (b)\nabove, and her obligation to return materials and tangible property set forth in paragraph (b) above also extends to such types of information,\nmaterials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have disclosed or\nentrusted the same to the Company or to the Employee.\n3. Inventions.\n(a) The Employee will make full and prompt disclosure to the Company of all inventions, creations, improvements, discoveries, trade secrets,\nsecret processes, technology, know-how, methods, developments, software, and works of authorship or other creative works, whether patentable\nor not, which are created, made, conceived or reduced to practice by the Employee or under the Employee's direction or jointly with others\nduring her employment by the Company, whether or not during normal working hours or on the premises of the Company (all of which are\ncollectively referred to in this Agreement as "Inventions").\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all her right,\ntitle and interest in and to all Inventions and all related patents, patent applications, copyrights and copyright applications to the maximum extent\npermitted by the laws of the State of New York or any like statute of any other state. The Employee hereby also waives all claims to moral rights\nin any Inventions. The Employee understands that the provisions of this Agreement requiring assignment of Inventions to the Company do not\napply to any invention which qualifies fully under the provisions of the laws of the State of New York. The Employee agrees to advise the\nCompany promptly in writing of any inventions that she believes meets the criteria in the laws of the State of New York.\n(c) The Employee agrees to cooperate fully with the Company and to take such further actions as may be necessary or desirable, both during and\nafter her employment with the Company, with respect to the procurement, maintenance and enforcement of copyrights, patents and other\nintellectual property rights (both in the United States and foreign countries) relating to Inventions. The Employee shall sign all papers, including,\nwithout limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignments of priority rights, and powers\nof attorney, which the Company may deem necessary or desirable in order to protect its rights and interests in any Invention. The Employee\nfurther\nagrees that if the Company is unable, after reasonable effort, to secure the signature of the Employee on any such papers, any executive\nofficer of the Company shall be entitled to execute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee\nhereby irrevocably designates and appoints each executive officer of the Company as her agent and attorney-infact to execute any such papers\non\nher behalf, and to take any and all actions as the Company may deem necessary or desirable in order to protect its rights and interests in any\nInvention, under the conditions described in this sentence.\n4. Non-Solicitation.\n(a) While employed by the Company and for a period of one (1) year after the termination or cessation of Employee's employment for any\nreason, the Employee will not, directly or indirectly, either alone or in association with others, recruit or solicit any person who was employed by\nthe Company or engaged as an independent contractor at any time during the period of the Employee's employment with the Company, except\nfor an individual whose employment with or service for the Company has been terminated for a period of six months or longer.\n(b)\nIf any restriction set forth in this Section 4 is found by any court of competent jurisdiction to be unenforceable because it extends for too long\na period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum\nperiod of time, range of activities or geographic area as to which it may be enforceable.\n(c) The geographic scope of this Section shall extend to anywhere the Company or any of its subsidiaries is doing business, has done business\nor\nhas plans to do business.\n(d) If the Employee violates the provisions of this Section, the Employee shall continue to be held by the restrictions set forth in this Section,\nuntil a period equal to the period of restriction has expired without any violation.\n5. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the terms\nof any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the business of such\nprevious employer or any other party, or to refrain from soliciting employees, customers or suppliers of such previous employer or other party.\nThe Employee further represents that his/her performance of all the terms of this Agreement and the performance of her duties as an employee\nof\nthe Company do not and will not breach any agreement with any prior employer or other party to which the Employee is a party (including\nwithout limitation any non-disclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the\nCompany to use any confidential or proprietary information or material belonging to any previous employer or others.\n6. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions that are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n7. Not An Employment Contract.\nThe Employee acknowledges that this Agreement does not constitute a contract of employment, either express or implied, and does not imply\nthat the Company will continue the Employee's employment for any period of time.\n8. General Provisions.\n(a) No Conflict. The Employee represents that the execution and performance by him/her of this Agreement does not and will not conflict with\nor\nbreach the terms of any other agreement by which the Employee is bound.\n(b) Entire Agreement. This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation\nafter the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) Severability.. The invalidity or unenforceability of any provision of this Agreement shall not affect or impair the validity or enforceability of\nany other provision of this Agreement.\n(d) Waiver. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) Employee Acknowledgment and Equitable Remedies. The Employee acknowledges that the restrictions contained in this Agreement are\nnecessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose.\nThe Employee agrees that any breach of this Agreement is likely to cause the Company substantial and irrevocable damage and therefore, in the\nevent\nof\nany\nbreach\nor\nthreatened\nbreach\nof\nthis\nAgreement,\nthe\nEmployee\nagrees\nthat\nthe\nCompany,\nin\naddition\nto\nsuch\nother\nremedies\nthat\nmay\nbe available, shall be entitled to specific performance and other injunctive relief without posting a bond, and the Employee hereby waives the\nadequacy of a remedy at law as a defense to such relief.\n(f) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and\nassigns, including any corporation or entity with which or into which the Company may be merged or which may succeed to all or substantially\nall of its assets or business, provided however that the obligations of the Employee are personal and shall not be assigned by the Employee.\n(g) Subsidiaries and Affiliates. The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company\nor any subsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed\nat\nthe time of such transfer.\n(h) Governing Law, Forum and Jurisdiction. This Agreement shall be governed by and construed as a sealed instrument under and in accordance\nwith the laws of the State of New York without regard to conflict of laws provisions. Any action, suit, or other legal proceeding which is\ncommenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the State\nof\nNew York (or, if appropriate, a federal court located within New York), and the Company and the Employee each consents to the jurisdiction of\nsuch a court.\n(i) Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope\nor substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nWITNESS our hands and seals:\nINTERCEPT PHARMACEUTICALS, INC.\n/s/ Barbara Duncan\n12/31/09\nBy: Barbara Duncan, CFO\nDate\n/s/ Mark Pruzanski\nDec. 31, 2009\nBy: Mark Pruzanski\nDate	EX-10 .4 .3 18 v321826_ex10-4x3.htm EXHIBIT 10.4 .3\nINVENTION, NON-DISCLOSURE, AND NON-SOLICITATION AGREEMENT\nThis Invention, Non-Disclosure, and Non-Solicitation Agreement is made by and between Intercept Pharmaceuticals, Inc. (the "Company") and\nMark Pruzanski (the "Employee"). The agreement is retro-active with the effective date being the employee's date of hire, September 4, 2002.\nIN CONSIDERATION of the Employee's employment by the Company, and for other good and valuable consideration, the sufficiency of which\nis hereby acknowledged, the Employee agrees as follows:\n1. Condition of Employment.\nThe Employee acknowledges that her employment with the Company is contingent upon her agreement to sign and adhere to the provisions of\nthis Invention, Non-Disclosure, and Non-Solicitation Agreement (the "Agreement").\n2. Proprietary and Confidential Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the Company's\nbusiness, business relationships or financial affairs (collectively, "Proprietary Information") is and shall be the exclusive property of the\nCompany. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods, techniques,\nformulas, compositions, compounds, projects, developments, plans (including business and marketing plans), research data, clinical data,\nfinancial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used pursuant to a license\nagreement), customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will\nnot disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other\nthan in the performance of his/her duties as an employee of the Company) without written approval by an officer of the Company, either during\nor after her employment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the\nEmployee.\n(b) The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models, laboratory notebooks,\nprogram listings, computer equipment or devices, computer programs or other written, photographic, or other tangible material containing\nProprietary Information, whether created by the Employee or others, which shall come into his/her custody or possession, shall be and are the\nexclusive property of the Company to be used by the Employee only in the performance of his/her duties for the Company and shall not be\ncopied or removed from the Company premises except in the pursuit of the business of the Company. All such materials or copies thereof and all\ntangible property of the Company in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (i) a\nrequest by the Company or (ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or\ncopies thereof or any such tangible property.\n(c) The Employee agrees that her obligation not to disclose or to use information and materials of the types set forth in paragraphs (a) and (b)\nabove, and her obligation to return materials and tangible property set forth in paragraph (b) above also extends to such types of information,\nmaterials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have disclosed or\nentrusted the same to the Company or to the Employee.\n3. Inventions.\n(a) The Employee will make full and prompt disclosure to the Company of all inventions, creations, improvements, discoveries, trade secrets,\nsecret processes, technology, know-how, methods, developments, software, and works of authorship or other creative works, whether patentable\nor not, which are created, made, conceived or reduced to practice by the Employee or under the Employee's direction or jointly with others\nduring her employment by the Company, whether or not during normal working hours or on the premises of the Company (all of which are\ncollectively referred to in this Agreement as "Inventions").\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all her right,\ntitle and interest in and to all Inventions and all related patents, patent applications, copyrights and copyright applications to the maximum extent\npermitted by the laws of the State of New York or any like statute of any other state. The Employee hereby also waives all claims to moral rights\nin any Inventions. The Employee understands that the provisions of this Agreement requiring assignment of Inventions to the Company do not\napply to any invention which qualifies fully under the provisions of the laws of the State of New York. The Employee agrees to advise the\nCompany promptly in writing of any inventions that she believes meets the criteria in the laws of the State of New York.\n(c) The Employee agrees to cooperate fully with the Company and to take such further actions as may be necessary or desirable, both during and\nafter her employment with the Company, with respect to the procurement, maintenance and enforcement of copyrights, patents and other\nintellectual property rights (both in the United States and foreign countries) relating to Inventions. The Employee shall sign all papers, including,\nwithout limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignments of priority rights, and powers\nof attorney, which the Company may deem necessary or desirable in order to protect its rights and interests in any Invention. The Employee\nfurther agrees that if the Company is unable, after reasonable effort, to secure the signature of the Employee on any such papers, any executive\nofficer of the Company shall be entitled to execute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee\nhereby irrevocably designates and appoints each executive officer of the Company as her agent and attorney-infact to execute any such papers on\nher behalf, and to take any and all actions as the Company may deem necessary or desirable in order to protect its rights and interests in any\nInvention, under the conditions described in this sentence.\n4. Non-Solicitation.\n(a) While employed by the Company and for a period of one (1) year after the termination or cessation of Employee’s employment for any\nreason, the Employee will not, directly or indirectly, either alone or in association with others, recruit or solicit any person who was employed by\nthe Company or engaged as an independent contractor at any time during the period of the Employee's employment with the Company, except\nfor an individual whose employment with or service for the Company has been terminated for a period of six months or longer.\n(b) If any restriction set forth in this Section 4 is found by any court of competent jurisdiction to be unenforceable because it extends for too long\na period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum\nperiod of time, range of activities or geographic area as to which it may be enforceable.\n(c) The geographic scope of this Section shall extend to anywhere the Company or any of its subsidiaries is doing business, has done business or\nhas plans to do business.\n(d) If the Employee violates the provisions of this Section, the Employee shall continue to be held by the restrictions set forth in this Section,\nuntil a period equal to the period of restriction has expired without any violation.\n5. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the terms\nof any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the business of such\nprevious employer or any other party, or to refrain from soliciting employees, customers or suppliers of such previous employer or other party.\nThe Employee further represents that his/her performance of all the terms of this Agreement and the performance of her duties as an employee of\nthe Company do not and will not breach any agreement with any prior employer or other party to which the Employee is a party (including\nwithout limitation any non-disclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the\nCompany to use any confidential or proprietary information or material belonging to any previous employer or others.\n6. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions that are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n7. Not An Employment Contract.\nThe Employee acknowledges that this Agreement does not constitute a contract of employment, either express or implied, and does not imply\nthat the Company will continue the Employee’s employment for any period of time.\n8. General Provisions.\n(a) No Conflict. The Employee represents that the execution and performance by him/her of this Agreement does not and will not conflict with or\nbreach the terms of any other agreement by which the Employee is bound.\n(b) Entire Agreement. This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation\nafter the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect or impair the validity or enforceability of\nany other provision of this Agreement.\n(d) Waiver. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) Employee Acknowledgment and Equitable Remedies. The Employee acknowledges that the restrictions contained in this Agreement are\nnecessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose.\nThe Employee agrees that any breach of this Agreement is likely to cause the Company substantial and irrevocable damage and therefore, in the\nevent of any breach or threatened breach of this Agreement, the Employee agrees that the Company, in addition to such other remedies that may\nbe available, shall be entitled to specific performance and other injunctive relief without posting a bond, and the Employee hereby waives the\nadequacy of a remedy at law as a defense to such relief.\n(f) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and\nassigns, including any corporation or entity with which or into which the Company may be merged or which may succeed to all or substantially\nall of its assets or business, provided however that the obligations of the Employee are personal and shall not be assigned by the Employee.\n(g) Subsidiaries and Affiliates. The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company\nor any subsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at\nthe time of such transfer.\n(h) Governing Law, Forum and Jurisdiction. This Agreement shall be governed by and construed as a sealed instrument under and in accordance\nwith the laws of the State of New York without regard to conflict of laws provisions. Any action, suit, or other legal proceeding which is\ncommenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the State of\nNew York (or, if appropriate, a federal court located within New York), and the Company and the Employee each consents to the jurisdiction of\nsuch a court.\n(i) Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope\nor substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nWITNESS our hands and seals:\nINTERCEPT PHARMACEUTICALS, INC.\n/s/ Barbara Duncan\n12/31/09\nBy: Barbara Duncan, CFO\nDate\n/s/ Mark Pruzanski\nDec. 31, 2009\nBy: Mark Pruzanski\nDate
+2880b467de68b29fae439ce40c07a82a.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 9 d72355dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nLOGO\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (“Agreement”) between Aerohive Networks, Inc., on behalf of itself and its subsidiary and affiliated entities\n(“Aerohive Networks”), and the other party identified below, on behalf of itself and its subsidiaries and affiliated entities (“Participant”), is effective\nas of April 1, 2019 (“Effective Date”).\n1. Confidential Information: “Confidential Information” means (a) the description, existence or content of a business, product or technology\ndevelopment opportunity and the relationship between the parties to which this Agreement relates, and (b) any and all current and future product\ninformation, roadmap, technical or financial information, forecasts, customer names, addresses, and related data, contracts, practices, services and\nsupport, procedures, and other business information including, but not limited to, software, reports, methods, strategies, plans, documents, drawings,\ndesigns, tools, models, inventions, patents, patent applications, trade secrets and any other intellectual property and proprietary information of the\nparties, or of any third parties that may be subject to a similar agreement, that may be disclosed between the parties under this Agreement and during its\nterm whether in written, oral, electronic, website- based, or other form, including information acquired during facility tours, and regardless of whether it\nis identified as “confidential”.\n2. Purpose of Disclosure: Subject to the terms, conditions and limitations of this Agreement, the recipient may use the Confidential Information solely\nfor the purpose(s) of exploring, implementing, conducting and/or maintaining a business, product, technology development or other opportunity of\nmutual interest and any ongoing relationship related thereto (the “Use”).\nAerohive – NDA\n–\nMutual – (10-2017)\nPage1of2\nConfidential\n3. Obligations and Duty of Care: The recipient of Confidential\nInformation agrees (i) not to disclose, communicate, or convey\nConfidential Information received hereunder, whether wholly or\npartially, to any third party, except as permitted herein;\n(ii) to use the same degree of care, but no less than a reasonable degree\nof care, to prevent any unauthorized use or disclosure of Confidential\nInformation, as the recipient uses to protect its own information that it\ndeems confidential or does not desire to disclose, publish or otherwise\nmake public; (iii) not to disclose Confidential Information to any person,\nexcept to its directors, employees, contractors, agents, affiliates,\nattorneys and consultants whom the recipient has a reasonable basis to\nbelieve have a demonstrable need to know in connection with, or who\nare directly involved in, the above-mentioned Use, who have been\ninformed of its confidential nature, and who, prior to receipt, have agreed\nto be or are, pursuant to their terms of employment or consultancy,,\nbound to protect the discloser’s rights hereunder; (iv) to be liable for any\nmisuse of Confidential Information by such persons; (v) not to use\nConfidential Information for any purpose other than reasonably related\nto the Use; and (vi) not to copy, alter, modify, disassemble, reverse\nengineer, reconstruct or decompile any of the Confidential Information\nor any portion thereof, in whole or in part, unless permitted in writing by,\nand signed by an authorized representative of, the discloser.\n4. Exceptions to Duty of Care: The obligations imposed upon the\nparties do not apply to information which : (i) is already rightfully in the\npossession of or known without a duty of confidentiality, or restriction\non disclosure or use; (ii) is or becomes publicly known at any time\nthrough no violation of this Agreement; (iii) is rightfully received by the\nrecipient from any third party without a duty of confidentiality, or\nrestriction on disclosure or use; (iv) is rightfully and independently\ndeveloped by the recipient without violating this Agreement or reliance\nupon any of the discloser’s Confidential Information; (v) is expressly\napproved in writing, by the discloser’s authorized representative, for\nrelease or other use by the recipient;\nor (vi) to the extent required to be disclosed by court or administrative\norder, subpoena or other legal process or regulatory compliance\nobligation; provided that the recipient will provide the discloser with\nprompt notice prior to such disclosure and cooperate with the discloser, to\nthe extent reasonable, to respond to the required disclosure. Nothing\nherein restricts either party, absent breach of this Agreement, from\nmarketing or providing products or services that compete with products or\nservices of the other party, or to engage in independent development of\nproducts or services similar to those developed by the other party and/or\nwhich are related to the above-mentioned Use.\n5. Title: All Confidential Information is and shall remain the discloser’s\nproperty and no right, title, interest or license thereto, other than\nspecifically limited to the Use, is or may be assumed to be conveyed by\nthe discloser.\n6. Term, Termination, and Duty to Return: This Agreement expires two\n(2) years from the Effective Date. Either party may earlier terminate this\nAgreement upon thirty (30) days prior written notice at any time, with or\nwithout cause. Upon written request at any time by the discloser, whether\nprior to or following expiration or earlier termination of this Agreement,\nthe recipient shall promptly return all Confidential Information and all\ncopies thereof, in whatever form, or destroy them with written certification\nto the discloser of such destruction, except to the specific extent retention\nof such Confidential Information is required by law or regulation. The\nrecipient agrees not to disclose Confidential Information for two (2) years\nfrom the date of expiration or earlier termination of this Agreement,\nexcept for source code, which will be protected in perpetuity.\n7. Notice: The recipient agrees to notify the discloser in writing\nimmediately of any unauthorized release or misuse of Confidential\nInformation or a material breach of this Agreement of which it becomes\naware.\n8. Injunctive Relief: Each party acknowledges and agrees that\nConfidential Information disclosed by the other\nMUTUAL NON-DISCLOSURE AGREEMENT\n“Participant”\nAEROHIVE NETWORKS, INC.\nEXTREME NETWORKS, INC.\nAddress:\n6480 Via Del Oro\n1011 McCarthy Blvd.\nSan Jose, California 95119\nMilpitas, California 95053\n/s/ Katy Motiey\n/s/ Steve Debenham\nSignature\nSignature\nName: Katy Motiey\nName: Steve Debenham\nTitle: Chief Administrative Officer\nTitle: Vice President, General Counsel\nDate: 4/8/19\nDate: 4/8/19\nLOGO\nReturn for counter-signature to:\n[nondisclosure@aerohive.com]\nLOCATION OF JURISDICTION AND VENUE:\nN/A\nAerohive – NDA\n–\nMutual – (10-2017)\nPage2of2\nConfidential\nparty may constitute valuable property of such other party the\nunauthorized release or use of which may irreparably harm the discloser,\nfor which monetary compensation or other remedies at law may not be\nadequate. Accordingly, each party agrees that the discloser shall be\nentitled to seek injunctive relief to prevent or curtail any such\nunauthorized release or use, threatened or actual. Such injunctive relief\nshall be in addition to any other rights provided the discloser hereunder,\nor at law or in equity.\n9. General Provisions: (i) This Agreement shall neither create a joint\nventure, partnership, agency, or other form of association, nor create an\nexpress or implied license grant by either party to the other under any\npatent, trademark, copyright, trade secret or other intellectual property\nright, except for the limited use rights as necessary to carry out the\nexpress Use; (ii); Only those representations or warranties that are made\nin a final definitive agreement, when, as and if executed, will have any\nlegal effect; INFORMATION EXCHANGED UNDER THIS\nAGREEMENT IS PROVIDED ON AN “AS IS” BASIS; Neither party\nassumes any responsibility whatsoever with respect to the accuracy or\nsufficiency of such information, and the recipient understands and agrees\nthat the discloser will have no liability whatsoever to the recipient arising\nfrom the recipient’s actual use, intended or otherwise of the Confidential\nInformation except as may be otherwise agreed; (iii) The parties shall\ncomply with all applicable export laws and regulations including, but not\nlimited to, the United States Export Administration Regulations; (iv)\nThis Agreement shall not be assignable or transferable, in whole or in\npart, by either party without the prior written consent of the other party,\nexcept by act of corporate succession in the event of merger or similar\ntransaction; (v) This Agreement shall be governed, construed and\nenforced in accordance with the applicable laws of the\nState of California, without regard to conflict of laws provisions. The\nparties agree to submit to non-exclusive jurisdiction and venue in the\nCalifornia Superior Court or United States District Court, as the case may\nbe, located within the boundaries of Santa Clara County, California, USA\n(unless and to the extent such jurisdiction and venue is otherwise\nexpressly indicated below, in which case such indicated jurisdiction and\nvenue shall be the exclusive jurisdiction and venue hereunder).\nNotwithstanding the foregoing, either party may take action in any\njurisdiction to prevent disclosure of Confidential Information, or to\nenforce a judgment or other decision; (vi) Neither party has any obligation\nby virtue of this Agreement to proceed with any transaction between them,\nand any proposal, design or similar item presented to either party by the\nother shall be without obligation or restriction on the party (except as\nprovided herein); (vii) Any modifications of or amendments to this\nAgreement will not be effective, and may not be relied upon by either\nparty, unless and until reduced to writing and signed by both parties; (viii)\nThe invalidity of any provision hereof shall not affect any remaining\nprovisions; (ix) Headings set forth herein are for reference only and shall\nnot affect the meaning or construction of this Agreement; and (x) The\nparties agree, to the fullest extent permitted under law, to waive any right\nto trial or adjudication by jury of any claim, cause or action arising or\nrelating to any use or disclosure of information exchanged or made\navailable hereunder.\n10. Entire Agreement: This Agreement constitutes the entire agreement\nbetween the parties with respect to Confidential Information, and\nsupersedes all prior or contemporaneous oral or written agreements\nconcerning Confidential Information. Each person signing this Agreement\nrepresents and warrants that such person is fully authorized to execute and\nenter into this Agreement on behalf of the company named above his or\nher signature.	EX-99.(D)(2) 9 d72355dex99d2.htm EX-99.(D)(2)\nl#.LOGO\nExhibit (d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT This Mutual Non-Disclosure Agreement (“Agreement”) between Aerohive Networks, Inc., on behalf of itself and its subsidiary and affiliated entities (“Aerohive Networks”), and the other party identified below, on behalf of itself and its subsidiaries and affiliated entities (“Participant”), is effective as of April 1, 2019 (“Effective Date™).\n1. Confidential Information: “Confidential Information” means (a) the description, existence or content of a business, product or technology development opportunity and the relationship between the parties to which this Agreement relates, and (b) any and all current and future product information, roadmap, technical or financial information, forecasts, customer names, addresses, and related data, contracts, practices, services and support, procedures, and other business information including, but not limited to, software, reports, methods, strategies, plans, documents, drawings, designs, tools, models, inventions, patents, patent applications, trade secrets and any other intellectual property and proprietary information of the parties, or of any third parties that may be subject to a similar agreement, that may be disclosed between the parties under this Agreement and during its term whether in written, oral, electronic, website- based, or other form, including information acquired during facility tours, and regardless of whether it is identified as “confidential”.\n2. Purpose of Disclosure: Subject to the terms, conditions and limitations of this Agreement, the recipient may use the Confidential Information solely for the purpose(s) of exploring, implementing, conducting and/or maintaining a business, product, technology development or other opportunity of mutual interest and any ongoing relationship related thereto (the “Use”).\n3. Obligations and Duty of Care: The recipient of Confidential\nInformation agrees (i) not to disclose, communicate, or convey\nConfidential Information received hereunder, whether wholly or\npartially, to any third party, except as permitted herein;\n(ii) to use the same degree of care, but no less than a reasonable degree\nof care, to prevent any unauthorized use or disclosure of Confidential\nInformation, as the recipient uses to protect its own information that it\ndeems confidential or does not desire to disclose, publish or otherwise\nmake public; (iii) not to disclose Confidential Information to any person,\nexcept to its directors, employees, contractors, agents, affiliates,\nattorneys and consultants whom the recipient has a reasonable basis to\nbelieve have a demonstrable need to know in connection with, or who\nare directly involved in, the above-mentioned Use, who have been\ninformed of its confidential nature, and who, prior to receipt, have agreed\nto be or are, pursuant to their terms of employment or consultancy,,\nbound to protect the discloser’s rights hereunder; (iv) to be liable for any\nmisuse of Confidential Information by such persons; (v) not to use\nConfidential Information for any purpose other than reasonably related\nto the Use; and (vi) not to copy, alter, modify, disassemble, reverse\nengineer, reconstruct or decompile any of the Confidential Information\nor any portion thereof, in whole or in part, unless permitted in writing by,\nand signed by an authorized representative of, the discloser.\n4. Exceptions to Duty of Care: The obligations imposed upon the\nparties do not apply to information which : (i) is already rightfully in the\npossession of or known without a duty of confidentiality, or restriction\non disclosure or use; (ii) is or becomes publicly known at any time\nthrough no violation of this Agreement; (iii) is rightfully received by the\nrecipient from any third party without a duty of confidentiality, or\nrestriction on disclosure or use; (iv) is rightfully and independently\ndeveloped by the recipient without violating this Agreement or reliance\nupon any of the discloser’s Confidential Information; (v) is expressly\napproved in writing, by the discloser’s authorized representative, for\nrelease or other use by the recipient;\nAerohive — NDA — Mutual — (10-2017)\nPage 1 of 2 or (vi) to the extent required to be disclosed by court or administrative\norder, subpoena or other legal process or regulatory compliance\nobligation; provided that the recipient will provide the discloser with\nprompt notice prior to such disclosure and cooperate with the discloser, to\nthe extent reasonable, to respond to the required disclosure. Nothing\nherein restricts either party, absent breach of this Agreement, from\nmarketing or providing products or services that compete with products or\nservices of the other party, or to engage in independent development of\nproducts or services similar to those developed by the other party and/or\nwhich are related to the above-mentioned Use.\n5. Title: All Confidential Information is and shall remain the discloser’s\nproperty and no right, title, interest or license thereto, other than\nspecifically limited to the Use, is or may be assumed to be conveyed by\nthe discloser.\n6. Term, Termination, and Duty to Return: This Agreement expires two\n(2) years from the Effective Date. Either party may earlier terminate this\nAgreement upon thirty (30) days prior written notice at any time, with or\nwithout cause. Upon written request at any time by the discloser, whether\nprior to or following expiration or earlier termination of this Agreement,\nthe recipient shall promptly return all Confidential Information and all\ncopies thereof, in whatever form, or destroy them with written certification\nto the discloser of such destruction, except to the specific extent retention\nof such Confidential Information is required by law or regulation. The\nrecipient agrees not to disclose Confidential Information for two (2) years\nfrom the date of expiration or earlier termination of this Agreement,\nexcept for source code, which will be protected in perpetuity.\n7. Notice: The recipient agrees to notify the discloser in writing\nimmediately of any unauthorized release or misuse of Confidential\nInformation or a material breach of this Agreement of which it becomes\naware.\n8. Injunctive Relief: Each party acknowledges and agrees that\nConfidential Information disclosed by the other\nConfidential\nMUTUAL NON-DISCLOSURE AGREEMENT party may constitute valuable property of such other party the\nunauthorized release or use of which may irreparably harm the discloser,\nfor which monetary compensation or other remedies at law may not be\nadequate. Accordingly, each party agrees that the discloser shall be\nentitled to seek injunctive relief to prevent or curtail any such\nunauthorized release or use, threatened or actual. Such injunctive relief\nshall be in addition to any other rights provided the discloser hereunder,\nor at law or in equity.\n9. General Provisions: (i) This Agreement shall neither create a joint\nventure, partnership, agency, or other form of association, nor create an\nexpress or implied license grant by either party to the other under any\npatent, trademark, copyright, trade secret or other intellectual property\nright, except for the limited use rights as necessary to carry out the\nexpress Use; (ii); Only those representations or warranties that are made\nin a final definitive agreement, when, as and if executed, will have any\nlegal effect; INFORMATION EXCHANGED UNDER THIS\nAGREEMENT IS PROVIDED ON AN “AS IS” BASIS; Neither party\nassumes any responsibility whatsoever with respect to the accuracy or\nsufficiency of such information, and the recipient understands and agrees\nthat the discloser will have no liability whatsoever to the recipient arising\nfrom the recipient’s actual use, intended or otherwise of the Confidential\nInformation except as may be otherwise agreed; (iii) The parties shall\ncomply with all applicable export laws and regulations including, but not\nlimited to, the United States Export Administration Regulations; (iv)\nThis Agreement shall not be assignable or transferable, in whole or in\npart, by either party without the prior written consent of the other party,\nexcept by act of corporate succession in the event of merger or similar\ntransaction; (v) This Agreement shall be governed, construed and\nenforced in accordance with the applicable laws of the\n“Participant”\nEXTREME NETWORKS, INC.\nAddress:\n6480 Via Del Oro\nSan Jose, California 95119\n/s/ Katy Motiey\nSignature\nName: Katy Motiey\nTitle: Chief Administrative Officer\nDate: 4/8/19\n7 Return for counter-signature to:\nLOGO [nondisclosure@aerohive.com]\nAerohive — NDA — Mutual — (10-2017)\nPage 2 of 2 State of California, without regard to conflict of laws provisions. The\nparties agree to submit to non-exclusive jurisdiction and venue in the\nCalifornia Superior Court or United States District Court, as the case may\nbe, located within the boundaries of Santa Clara County, California, USA\n(unless and to the extent such jurisdiction and venue is otherwise\nexpressly indicated below, in which case such indicated jurisdiction and\nvenue shall be the exclusive jurisdiction and venue hereunder).\nNotwithstanding the foregoing, either party may take action in any\njurisdiction to prevent disclosure of Confidential Information, or to\nenforce a judgment or other decision; (vi) Neither party has any obligation\nby virtue of this Agreement to proceed with any transaction between them,\nand any proposal, design or similar item presented to either party by the\nother shall be without obligation or restriction on the party (except as\nprovided herein); (vii) Any modifications of or amendments to this\nAgreement will not be effective, and may not be relied upon by either\nparty, unless and until reduced to writing and signed by both parties; (viii)\nThe invalidity of any provision hereof shall not affect any remaining\nprovisions; (ix) Headings set forth herein are for reference only and shall\nnot affect the meaning or construction of this Agreement; and (x) The\nparties agree, to the fullest extent permitted under law, to waive any right\nto trial or adjudication by jury of any claim, cause or action arising or\nrelating to any use or disclosure of information exchanged or made\navailable hereunder.\n10. Entire Agreement: This Agreement constitutes the entire agreement\nbetween the parties with respect to Confidential Information, and\nsupersedes all prior or contemporaneous oral or written agreements\nconcerning Confidential Information. Each person signing this Agreement\nrepresents and warrants that such person is fully authorized to execute and\nenter into this Agreement on behalf of the company named above his or\nher signature.\nAEROHIVE NETWORKS, INC.\n1011 McCarthy Blvd.\nMilpitas, California 95053\n/s/ Steve Debenham\nSignature\nName: Steve Debenham\nTitle: Vice President, General Counsel\nDate: 4/8/19\nLOCATION OF JURISDICTION AND VENUE:\nN/A\nConfidential	EX-99.(D)(2) 9 d72355dex99d2.htn EX-99.(D)(2)\nExhibit (d)(2)\nALOGO\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement ("Agreement") between Aerohive Networks, Inc., on behalf of itself and its subsidiary and affiliated entities\n("Aerohive Networks"), and the other party identified below, on behalf of itself and its subsidiaries and affiliated entities ("Participant"), is effective\nas of April 1, 2019 ("Effective Date").\n1.\nConfidential Information: "Confidential Information" means (a) the description, existence or content of a business, product or technology\ndevelopment opportunity and the relationship between the parties to which this Agreement relates, and (b) any and all current\nand\nfuture\nproduct\ninformation, roadmap, technical or financial information, forecasts, customer names, addresses, and related data, contracts, practices, services and\nsupport, procedures, and other business information including, but not limited to, software, reports, methods, strategies, plans, documents, drawings,\ndesigns,\ntools,\nmodels, inventions, patents, patent applications, trade secrets and any other intellectual property and proprietary information of the\nparties, or of any third parties that may be subject to a similar agreement, that may be disclosed between the parties under this Agreement and during its\nterm\nwhether in written, oral, electronic, website- based, or other form, including information acquired during facility tours, and regardless of whether it\nis identified as "confidential"\n2. Purpose of Disclosure: Subject to the terms, conditions and limitations of this Agreement, the recipient may use the Confidential Information solely\nfor the purpose(s) of exploring, implementing, conducting and/or maintaining a business, product, technology development or other opportunity of\nmutual interest and any ongoing relationship related thereto (the "Use").\n3. Obligations and Duty of Care: The recipient of Confidential\nor (vi) to the extent required to be disclosed by court or administrative\nInformation agrees (i) not to disclose, communicate, or convey\norder, subpoena or other legal process or regulatory compliance\nConfidential Information received hereunder, whether wholly or\nobligation; provided that the recipient will provide the discloser with\npartially, to any third party, except as permitted herein;\nprompt notice prior to such disclosure and cooperate with the discloser, to\n(ii) to use the same degree of care, but no less than a reasonable degree\nthe extent reasonable, to respond to the required disclosure. Nothing\nof care, to prevent any unauthorized use or disclosure of Confidentia\nherein restricts either party, absent breach of this Agreement, from\nInformation, as the recipient uses to protect its own information that it\nmarketing or providing products or services that compete with products or\ndeems confidential or does not desire to disclose, publish or otherwise\nservices of the other party, or to engage in independent development of\nmake public; (iii) not to disclose Confidential Information to any person,\nproducts or services similar to those developed by the other party and/or\nexcept to its directors, employees, contractors, agents, affiliates,\nwhich are related to the above-mentioned Use.\nattorneys and consultants whom the recipient has a reasonable basis to\nbelieve have a demonstrable need to know in connection with, or who\n5. Title: All Confidential Information is and shall remain the discloser's\nare directly involved in, the above-mentioned Use, who have been\nproperty and no right, title, interest or license thereto, other than\ninformed of its confidential nature, and who, prior to receipt, have agreed\nspecifically limited to the Use, is or may be assumed to be conveyed by\nto be or are, pursuant to their terms of employment or consultancy,,\nthe discloser.\nbound to protect the discloser's rights hereunder; (iv) to be liable for any\nmisuse of Confidential Information by such persons; (v) not to use\n6. Term, Termination, and Duty. to Return: This Agreement expires two\nConfidential Information for any purpose other than reasonably related\n(2) years from the Effective Date. Either party may earlier terminate this\nto the Use; and (vi) not to copy, alter, modify, disassemble, reverse\nAgreement upon thirty (30) days prior written notice at any time, with or\nengineer, reconstruct or decompile any of the Confidential Information\nwithout cause. Upon written request at any time by the discloser, whether\nor any portion thereof in whole or in part, unless permitted in writing by,\nprior to or following expiration or earlier termination of this Agreement,\nand signed by an authorized representative of, the discloser.\nthe recipient shall promptly return all Confidential Information and all\ncopies thereof, in whatever form, or destroy them with written certification\n4. Exceptions to Duty. of Care: The obligations imposed upon the\nto the discloser of such destruction, except to the specific extent retention\nparties do not apply to information which (i) is already rightfully in the\nof such Confidential Information is required by law or regulation. The\npossession of or known without a duty of confidentiality, or restriction\nrecipient agrees not to disclose Confidential Information for two (2) years\non disclosure or use; (ii) is or becomes publicly known at any time\nfrom the date of expiration or earlier termination of this Agreement,\nthrough no violation of this Agreement; (iii) is rightfully received by the\nexcept for source code, which will be protected in perpetuity.\nrecipient from any third party without a duty of confidentiality, or\nrestriction on disclosure or use; (iv) is rightfully and independently\n7. Notice: The recipient agrees to notify the discloser in writing\ndeveloped by the recipient without violating this Agreement or reliance\nimmediately of any unauthorized release or misuse of Confidential\nupon any of the discloser's Confidential Information; (v) is expressly\nInformation or a material breach of this Agreement of which it becomes\napproved in writing, by the discloser's authorized representative, for\naware.\nrelease or other use by the recipient;\n8. Injunctive Relief: Each party acknowledges and agrees that\nConfidential Information disclosed by the other\nAerohive NDA Mutual (10-2017)\nPage 1 of 2\nConfidential\nMUTUAL NON-DISCLOSURE AGREEMENT\nparty may constitute valuable property of such other party the\nState of California, without regard to conflict of laws provisions. The\nunauthorized release or use of which may irreparably harm the discloser,\nparties agree to submit to non-exclusive jurisdiction and venue in the\nfor which monetary compensation or other remedies at law may not be\nCalifornia Superior Court or United States District Court, as the case may\nadequate. Accordingly, each party agrees that the discloser shall be\nbe, located within the boundaries of Santa Clara County, California, USA\nentitled to seek injunctive relief to prevent or curtail any such\n(unless and to the extent such jurisdiction and venue is otherwise\nunauthorized release or use, threatened or actual. Such injunctive relief\nexpressly indicated below, in which case such indicated jurisdiction and\nshall be in addition to any other rights provided the discloser hereunder,\nvenue shall be the exclusive jurisdiction and venue hereunder).\nor at law or in equity.\nNotwithstanding the foregoing, either party may take action in any\njurisdiction to prevent disclosure of Confidential Information, or to\n9. General Provisions: (i) This Agreement shall neither create a joint\nenforce a judgment or other decision; (vi) Neither party has any obligation\nventure, partnership, agency, or other form of association, nor create an\nby virtue of this Agreement to proceed with any transaction between them,\nexpress or implied license grant by either party to the other under any\nand any proposal, design or similar item presented to either party by the\npatent, trademark, copyright, trade secret or other intellectual property\nother shall be without obligation or restriction on the party (except as\nright, except for the limited use rights as necessary to carry out the\nprovided herein); (vii) Any modifications of or amendments to this\nexpress Use; (ii); Only those representations or warranties that are made\nAgreement will not be effective, and may not be relied upon by either\nin a final definitive agreement, when, as and if executed, will have any\nparty, unless and until reduced to writing and signed by both parties; (viii)\nlegal effect; INFORMATION EXCHANGED UNDER THIS\nThe invalidity of any provision hereof shall not affect any remaining\nAGREEMENT IS PROVIDED ON AN "AS IS" BASIS; Neither party\nprovisions; (ix) Headings set forth herein are for reference only and shall\nassumes any responsibility whatsoever with respect to the accuracy or\nnot affect the meaning or construction of this Agreement; and (x) The\nsufficiency of such information, and the recipient understands and agrees\nparties agree, to the fullest extent permitted under law, to waive any right\nthat the discloser will have no liability whatsoever to the recipient arising\nto trial or adjudication by jury of any claim, cause or action arising or\nfrom the recipient's actual use, intended or otherwise of the Confidential\nrelating to any use or disclosure of information exchanged or made\nInformation except as may be otherwise agreed; (iii) The parties shall\navailable hereunder.\ncomply with all applicable export laws and regulations including, but not\nlimited to, the United States Export Administration Regulations; (iv)\n10. Entire Agreement: This Agreement constitutes the entire agreement\nThis Agreement shall not be assignable or transferable, in whole or in\nbetween the parties with respect to Confidential Information, and\npart, by either party without the prior written consent of the other party,\nsupersedes all prior or contemporaneous oral or written agreements\nexcept by act of corporate succession in the event of merger or similar\nconcerning Confidential Information. Each person signing this Agreement\ntransaction; (v) This Agreement shall be governed, construed and\nrepresents and warrants that such person is fully authorized to execute and\nenforced in accordance with the applicable laws of the\nenter into this Agreement on behalf of the company named above his or\nher signature.\n"Participant"\nAEROHIVE NETWORKS, INC.\nEXTREME NETWORKS, INC.\nAddress:\n6480 Via Del Oro\n1011 McCarthy Blvd.\nSan Jose, California 95119\nMilpitas, California 95053\n/s/ Katy Motiey\n/s/ Steve Debenham\nSignature\nSignature\nName: Katy Motiey\nName: Steve Debenham\nTitle: Chief Administrative Officer\nTitle: Vice President, General Counsel\nDate: 4/8/19\nDate: 4/8/19\nReturn for counter-signature to:\nLOGO [nondisclosure@aerohive.com]\nLOCATION OF JURISDICTION AND VENUE:\nN/A\nAerohive NDA Mutual (10-2017)\nPage 2 of 2\nConfidential	EX-99.(D)(2) 9 d72355dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nLOGO\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (“Agreement”) between Aerohive Networks, Inc., on behalf of itself and its subsidiary and affiliated entities\n(“Aerohive Networks”), and the other party identified below, on behalf of itself and its subsidiaries and affiliated entities (“Participant”), is effective\nas of April 1, 2019 (“Effective Date”).\n1. Confidential Information: “Confidential Information” means (a) the description, existence or content of a business, product or technology\ndevelopment opportunity and the relationship between the parties to which this Agreement relates, and (b) any and all current and future product\ninformation, roadmap, technical or financial information, forecasts, customer names, addresses, and related data, contracts, practices, services and\nsupport, procedures, and other business information including, but not limited to, software, reports, methods, strategies, plans, documents, drawings,\ndesigns, tools, models, inventions, patents, patent applications, trade secrets and any other intellectual property and proprietary information of the\nparties, or of any third parties that may be subject to a similar agreement, that may be disclosed between the parties under this Agreement and during its\nterm whether in written, oral, electronic, website- based, or other form, including information acquired during facility tours, and regardless of whether it\nis identified as “confidential”.\n2. Purpose of Disclosure: Subject to the terms, conditions and limitations of this Agreement, the recipient may use the Confidential Information solely\nfor the purpose(s) of exploring, implementing, conducting and/or maintaining a business, product, technology development or other opportunity of\nmutual interest and any ongoing relationship related thereto (the “Use”).\nAerohive – NDA\n–\nMutual – (10-2017)\nPage1of2\nConfidential\n3. Obligations and Duty of Care: The recipient of Confidential\nInformation agrees (i) not to disclose, communicate, or convey\nConfidential Information received hereunder, whether wholly or\npartially, to any third party, except as permitted herein;\n(ii) to use the same degree of care, but no less than a reasonable degree\nof care, to prevent any unauthorized use or disclosure of Confidential\nInformation, as the recipient uses to protect its own information that it\ndeems confidential or does not desire to disclose, publish or otherwise\nmake public; (iii) not to disclose Confidential Information to any person,\nexcept to its directors, employees, contractors, agents, affiliates,\nattorneys and consultants whom the recipient has a reasonable basis to\nbelieve have a demonstrable need to know in connection with, or who\nare directly involved in, the above-mentioned Use, who have been\ninformed of its confidential nature, and who, prior to receipt, have agreed\nto be or are, pursuant to their terms of employment or consultancy,,\nbound to protect the discloser’s rights hereunder; (iv) to be liable for any\nmisuse of Confidential Information by such persons; (v) not to use\nConfidential Information for any purpose other than reasonably related\nto the Use; and (vi) not to copy, alter, modify, disassemble, reverse\nengineer, reconstruct or decompile any of the Confidential Information\nor any portion thereof, in whole or in part, unless permitted in writing by,\nand signed by an authorized representative of, the discloser.\n4. Exceptions to Duty of Care: The obligations imposed upon the\nparties do not apply to information which : (i) is already rightfully in the\npossession of or known without a duty of confidentiality, or restriction\non disclosure or use; (ii) is or becomes publicly known at any time\nthrough no violation of this Agreement; (iii) is rightfully received by the\nrecipient from any third party without a duty of confidentiality, or\nrestriction on disclosure or use; (iv) is rightfully and independently\ndeveloped by the recipient without violating this Agreement or reliance\nupon any of the discloser’s Confidential Information; (v) is expressly\napproved in writing, by the discloser’s authorized representative, for\nrelease or other use by the recipient;\nor (vi) to the extent required to be disclosed by court or administrative\norder, subpoena or other legal process or regulatory compliance\nobligation; provided that the recipient will provide the discloser with\nprompt notice prior to such disclosure and cooperate with the discloser, to\nthe extent reasonable, to respond to the required disclosure. Nothing\nherein restricts either party, absent breach of this Agreement, from\nmarketing or providing products or services that compete with products or\nservices of the other party, or to engage in independent development of\nproducts or services similar to those developed by the other party and/or\nwhich are related to the above-mentioned Use.\n5. Title: All Confidential Information is and shall remain the discloser’s\nproperty and no right, title, interest or license thereto, other than\nspecifically limited to the Use, is or may be assumed to be conveyed by\nthe discloser.\n6. Term, Termination, and Duty to Return: This Agreement expires two\n(2) years from the Effective Date. Either party may earlier terminate this\nAgreement upon thirty (30) days prior written notice at any time, with or\nwithout cause. Upon written request at any time by the discloser, whether\nprior to or following expiration or earlier termination of this Agreement,\nthe recipient shall promptly return all Confidential Information and all\ncopies thereof, in whatever form, or destroy them with written certification\nto the discloser of such destruction, except to the specific extent retention\nof such Confidential Information is required by law or regulation. The\nrecipient agrees not to disclose Confidential Information for two (2) years\nfrom the date of expiration or earlier termination of this Agreement,\nexcept for source code, which will be protected in perpetuity.\n7. Notice: The recipient agrees to notify the discloser in writing\nimmediately of any unauthorized release or misuse of Confidential\nInformation or a material breach of this Agreement of which it becomes\naware.\n8. Injunctive Relief: Each party acknowledges and agrees that\nConfidential Information disclosed by the other\nMUTUAL NON-DISCLOSURE AGREEMENT\n“Participant”\nAEROHIVE NETWORKS, INC.\nEXTREME NETWORKS, INC.\nAddress:\n6480 Via Del Oro\n1011 McCarthy Blvd.\nSan Jose, California 95119\nMilpitas, California 95053\n/s/ Katy Motiey\n/s/ Steve Debenham\nSignature\nSignature\nName: Katy Motiey\nName: Steve Debenham\nTitle: Chief Administrative Officer\nTitle: Vice President, General Counsel\nDate: 4/8/19\nDate: 4/8/19\nLOGO\nReturn for counter-signature to:\n[nondisclosure@aerohive.com]\nLOCATION OF JURISDICTION AND VENUE:\nN/A\nAerohive – NDA\n–\nMutual – (10-2017)\nPage2of2\nConfidential\nparty may constitute valuable property of such other party the\nunauthorized release or use of which may irreparably harm the discloser,\nfor which monetary compensation or other remedies at law may not be\nadequate. Accordingly, each party agrees that the discloser shall be\nentitled to seek injunctive relief to prevent or curtail any such\nunauthorized release or use, threatened or actual. Such injunctive relief\nshall be in addition to any other rights provided the discloser hereunder,\nor at law or in equity.\n9. General Provisions: (i) This Agreement shall neither create a joint\nventure, partnership, agency, or other form of association, nor create an\nexpress or implied license grant by either party to the other under any\npatent, trademark, copyright, trade secret or other intellectual property\nright, except for the limited use rights as necessary to carry out the\nexpress Use; (ii); Only those representations or warranties that are made\nin a final definitive agreement, when, as and if executed, will have any\nlegal effect; INFORMATION EXCHANGED UNDER THIS\nAGREEMENT IS PROVIDED ON AN “AS IS” BASIS; Neither party\nassumes any responsibility whatsoever with respect to the accuracy or\nsufficiency of such information, and the recipient understands and agrees\nthat the discloser will have no liability whatsoever to the recipient arising\nfrom the recipient’s actual use, intended or otherwise of the Confidential\nInformation except as may be otherwise agreed; (iii) The parties shall\ncomply with all applicable export laws and regulations including, but not\nlimited to, the United States Export Administration Regulations; (iv)\nThis Agreement shall not be assignable or transferable, in whole or in\npart, by either party without the prior written consent of the other party,\nexcept by act of corporate succession in the event of merger or similar\ntransaction; (v) This Agreement shall be governed, construed and\nenforced in accordance with the applicable laws of the\nState of California, without regard to conflict of laws provisions. The\nparties agree to submit to non-exclusive jurisdiction and venue in the\nCalifornia Superior Court or United States District Court, as the case may\nbe, located within the boundaries of Santa Clara County, California, USA\n(unless and to the extent such jurisdiction and venue is otherwise\nexpressly indicated below, in which case such indicated jurisdiction and\nvenue shall be the exclusive jurisdiction and venue hereunder).\nNotwithstanding the foregoing, either party may take action in any\njurisdiction to prevent disclosure of Confidential Information, or to\nenforce a judgment or other decision; (vi) Neither party has any obligation\nby virtue of this Agreement to proceed with any transaction between them,\nand any proposal, design or similar item presented to either party by the\nother shall be without obligation or restriction on the party (except as\nprovided herein); (vii) Any modifications of or amendments to this\nAgreement will not be effective, and may not be relied upon by either\nparty, unless and until reduced to writing and signed by both parties; (viii)\nThe invalidity of any provision hereof shall not affect any remaining\nprovisions; (ix) Headings set forth herein are for reference only and shall\nnot affect the meaning or construction of this Agreement; and (x) The\nparties agree, to the fullest extent permitted under law, to waive any right\nto trial or adjudication by jury of any claim, cause or action arising or\nrelating to any use or disclosure of information exchanged or made\navailable hereunder.\n10. Entire Agreement: This Agreement constitutes the entire agreement\nbetween the parties with respect to Confidential Information, and\nsupersedes all prior or contemporaneous oral or written agreements\nconcerning Confidential Information. Each person signing this Agreement\nrepresents and warrants that such person is fully authorized to execute and\nenter into this Agreement on behalf of the company named above his or\nher signature.
+29296372f4a9b095ae40f70fd5de3728.pdf	effective_date jurisdiction party term	EXHIBIT A\nMUTUAL NON-DISCLOSURE AGREEMENT\nOCTOBER 11, 2007\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) is made this 11th day of October, 2007, by SunCoast Holdings, Inc., and all of\nits subsidiaries, affiliates and associations, with its principal place of business at 401 East Las Olas Blvd, Ft. Lauderdale, Florida, referred to\nhereafter as “Company,” and SunTrust Banks, Inc., and all of its subsidiaries, affiliates and associations, with its principal place of business at\n303 Peachtree Street, Suite 700 in Atlanta, GA, referred to hereafter as “SunTrust.”\nWHEREAS, Company wishes to evaluate a potential business opportunity with SunTrust involving SunTrust’s subsidiary Madison\nInsurance Company (hereinafter, the “Opportunity”) and, in connection therewith, the parties will be exchanging Confidential Information (as\nhereafter defined); and\nWHEREAS, the parties have agreed to provide certain Confidential Information to each other and desire to protect that Confidential\nInformation and preserve the confidential and proprietary nature of the Confidential Information and the prospective Opportunity. The providing\nparty is referred to in this Agreement as the “Disclosing Party,” while the receiving party is referred to as the “Recipient.”\nNOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants, promises and agreements contained herein,\nincluding the agreement to provide Confidential Information to each other and to discuss a prospective Opportunity and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Recipient\nhereby agrees as follows:\nI.\n“Confidential Information” as used in this Agreement shall mean any and all materials, documents and information, whether oral or in\nwritten or other tangible medium or form, regarding the Disclosing Party’s business or prospective business opportunities and plans, assets,\noperations, finances, employees, products and prospective products, and technology including, without limitation, any and all technical and\nnon-technical information, including patent, copyright, trade secret and proprietary information, techniques, sketches, ideas, schematics,\nconcepts, work in process, technology, models, inventions, material data, business methods, business policies, research and/or development,\ndrawings, know-how, processes, apparatus, equipment, algorithms, software programs, source code, object code, software source\ndocuments, and formulae related to the current, future and proposed products and services of the party. “Confidential Information” also\nincludes, without limitation, the Disclosing Party’s information concerning research, experimental work, development, design details and\nspecifications, engineering, financial information, procurement requirements, customer and supplier lists, user information, personnel\nmatters, pricing information, business\nMUTUAL NON-DISCLOSURE AGREEMENT — PAGE 1\nforecasts, sales and merchandising and marketing plans and information related to the current, future and proposed products and services of\nthe Disclosing Party.\nII. (a) The Recipient acknowledges the competitive value and confidential and proprietary nature of the Disclosing Party’s Confidential\nInformation and the damage that could result to the Disclosing Party if any part of the Confidential Information or the fact that the\nDisclosing Party and Recipient are talking about a prospective Opportunity and nature of such Opportunity were disclosed to any third\nparty or if the Recipient uses the Disclosing Party’s Confidential Information to directly or indirectly compete with the Disclosing Party or\nfor any other reason. Therefore, the Recipient agrees that neither it nor its Representatives (as hereinafter defined) will, directly or\nindirectly, (i) use the Disclosing Party’s Confidential Information in any way other than for the purpose of evaluating and proposing a\npossible business Opportunity with the Disclosing Party and/or (ii) disclose to any person, business or entity all or any part of the\nDisclosing Party’s Confidential Information, except as herein provided, and/or (iii) disclose to any person, business or entity either the fact\nthat the Disclosing Party’s Confidential Information has been made available or the fact that discussions or negotiations are taking place\nconcerning a possible business Opportunity between the parties or any of the terms, conditions or other facts with respect to any possible\nOpportunities, including the status thereof; except that each party may make such disclosure if, upon the advice of counsel, such disclosure\nmust be made in order to comply with applicable law, regulation or judicial process.\n(b) The Recipient shall be entitled to disclose the Disclosing Party’s Confidential Information to only those employees, officers, agents and\nadvisers of the Recipient (collectively, “Representatives”) necessary for evaluating the Opportunity, provided that the Recipient advises\neach such Representative of the obligations contained herein and that by receiving such information the Representatives are agreeing to be\nbound by this Agreement. The Recipient shall be responsible for any breach of this Agreement by it and/or any Representative and shall\nindemnify and hold the Disclosing Party harmless from any such breach.\nIII. The Recipient understands and agrees for itself and its Representatives that neither the Disclosing Party nor any of its affiliates, agents,\nadvisors or representatives (a) have made or make any representation or warranty, expressed or implied, as to the accuracy or completeness\nof the Confidential Information or (b) shall have any liability whatsoever to the Recipient or its Representatives relating to or resulting from\nthe use of the Disclosing Party’s Confidential Information or any errors therein or omissions therefrom. The only information that will have\nany legal effect will be specifically represented in a definitive written agreement and in no event will such definitive written agreement\ncontain any representation as to any projections.\nMUTUAL NON-DISCLOSURE AGREEMENT — PAGE 2\nIV. No right or license to use the Disclosing Party’s Confidential Information or other interest therein is hereby granted to the Recipient other\nthan for the purpose of evaluating the Opportunity.\nV. The obligations of secrecy and non-disclosure set forth herein shall not apply to: (a) information which at the time of disclosure to the\nRecipient is in the public domain; (b) information which after disclosure to the Recipient becomes generally available to the public by\npublication or otherwise through no fault of the Recipient or any of its Representatives; (c) information which the Recipient or any of its\nRepresentative can demonstrate was already in the possession of the Recipient or any such Representative and which was not acquired by\nthe Recipient or any such Representative, as the case may be, directly or indirectly from the Disclosing Party; (d) subject to Paragraph 6\nbelow, information the Recipient is required by court order, injunction, writ, law, rule or regulation to disclose; or (e) information which\nthe Recipient can demonstrate through competent written evidence was independently developed by or for the Recipient without use of or\nreliance on the Disclosing Party’s Confidential Information.\nVI. In the event that the Recipient and/or its Representatives are requested or required to disclose any of the Disclosing Party’s Confidential\nInformation in an investigatory, legal, regulatory or administrative proceeding, the Recipient shall, unless legally prohibited therefrom,\nprovide the Disclosing Party with prompt written notice thereof so that the Disclosing Party may, in its discretion, seek a protective order\nor other appropriate remedy. The Recipient agrees to consult and cooperate with the Disclosing Party in seeking a protective order or other\nappropriate remedy. The Recipient may disclose only that portion of the Confidential Information that it is legally required to disclose.\nVII. The Recipient further agrees that, without the prior written approval of the Disclosing Party, its Representatives who have been provided\nConfidential Information will not, directly or indirectly for a period of twelve (12) months from the date hereof, solicit for employment\nany employees of the Disclosing Party with whom they have contact or about whom they learn in connection with their review of the\nOpportunity. Notwithstanding the foregoing, Recipient’s Representatives may solicit or hire any person: (a) who responds to a public\nadvertisement or otherwise contacts Recipient on his or her own initiative, without any direct or indirect solicitation by Recipient, (b) who\nhas been brought to Recipient’s attention by an agency, search firm or other independent third party, or (c) with whom Recipient initiates\ndiscussions regarding employment after such person is no longer an employee of the Disclosing Party.\nVIII. The Recipient shall return to the Disclosing Party upon demand any and all Confidential Information entrusted to it by the Disclosing Party\npursuant to this Agreement (including any and all copies, abstracts, compilations or analyses thereof and memoranda related thereto) or\nshall destroy all such Confidential Information and provide a certificate of destruction to the Disclosing Party signed\nMUTUAL NON-DISCLOSURE AGREEMENT — PAGE 3\nby the Recipient. The Recipient further agrees that neither it nor any Representative will copy in whole or in part any such Confidential\nInformation without the written consent of the Disclosing Party, except for the sole use of its Representatives in carrying out their\nevaluation of a possible business Opportunity with the Disclosing Party.\nIX. The obligation of secrecy and non-disclosure set forth in this Agreement shall remain in effect for a period of one year from the date\nhereof.\nX. This Agreement and the respective rights and obligations of the parties hereto shall be governed by and determined in accordance with the\nlaws of the State of Florida, without giving effect to its conflict of laws, principles or rules.\nXI. The Recipient agrees that money damages would not be a sufficient remedy for any breach of this Agreement by the Recipient or its\nRepresentatives and that in addition to all other remedies which may be available, the Disclosing Party may be entitled to specific\nperformance and injunctive or other equitable relief as a remedy for such breach and the Recipient further agrees to waive and to use its\nbest efforts to cause its Representatives to waive any requirement for securing or posting of any bond in connection with such remedy.\nXII. This Agreement, which includes all attached exhibits referenced herein, constitutes the entire agreement between Company and SunTrust\nwith respect to the subject matter hereof, and supersedes all proposals, oral or written, and all other communications between the parties\nwith respect to such subject matter.\nXIII. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the\nextent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement, and any such prohibition or\nunenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction. To the extent\npermitted by law, the parties waive any provision of law which renders any such provision prohibited or unenforceable in any respect.\nIN WITNESS WHEREOF, this Agreement has been executed by the duly authorized officers of the parties as of the day and year written\nbelow.\nSUNCOAST HOLDINGS, INC.\nSUNTRUST BANKS, INC.\nBy: /s/ Steven M. Mariano\nBy: /s/ Daniel Baltz\nName: Steven M. Mariano\nName: Daniel Baltz\nTitle: Chief Executive Officer\nTitle: Group V.P., Insurance Risk Management\nDate: 10-11-07\nDate: 10-15-07\nMUTUAL NON-DISCLOSURE AGREEMENT — PAGE 4	EXHIBIT A\nMUTUAL NON-DISCLOSURE AGREEMENT\nOCTOBER 11, 2007\nMUTUAL NON-DISCL.OSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) is made this 11th day of October, 2007, by SunCoast Holdings, Inc., and all of\nits subsidiaries, affiliates and associations, with its principal place of business at 401 East Las Olas Blvd, Ft. Lauderdale, Florida, referred to\nhereafter as “Company,” and SunTrust Banks, Inc., and all of its subsidiaries, affiliates and associations, with its principal place of business at\n303 Peachtree Street, Suite 700 in Atlanta, GA, referred to hereafter as “SunTrust.”\nWHEREAS, Company wishes to evaluate a potential business opportunity with SunTrust involving SunTrust’s subsidiary Madison\nInsurance Company (hereinafter, the “Opportunity”) and, in connection therewith, the parties will be exchanging Confidential Information (as\nhereafter defined); and\nWHEREAS, the parties have agreed to provide certain Confidential Information to each other and desire to protect that Confidential\nInformation and preserve the confidential and proprietary nature of the Confidential Information and the prospective Opportunity. The providing\nparty is referred to in this Agreement as the “Disclosing Party,” while the receiving party is referred to as the “Recipient.”\nNOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants, promises and agreements contained herein,\nincluding the agreement to provide Confidential Information to each other and to discuss a prospective Opportunity and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Recipient\nhereby agrees as follows:\nI.  “Confidential Information” as used in this Agreement shall mean any and all materials, documents and information, whether oral or in\nwritten or other tangible medium or form, regarding the Disclosing Party’s business or prospective business opportunities and plans, assets,\noperations, finances, employees, products and prospective products, and technology including, without limitation, any and all technical and\nnon-technical information, including patent, copyright, trade secret and proprietary information, techniques, sketches, ideas, schematics,\nconcepts, work in process, technology, models, inventions, material data, business methods, business policies, research and/or development,\ndrawings, know-how, processes, apparatus, equipment, algorithms, software programs, source code, object code, software source\ndocuments, and formulae related to the current, future and proposed products and services of the party. “Confidential Information” also\nincludes, without limitation, the Disclosing Party’s information concerning research, experimental work, development, design details and\nspecifications, engineering, financial information, procurement requirements, customer and supplier lists, user information, personnel\nmatters, pricing information, business\nMUTUAL NON-DISCLOSURE AGREEMENT — PAGE 1\nII.\nIII. forecasts, sales and merchandising and marketing plans and information related to the current, future and proposed products and services of\nthe Disclosing Party.\n(a) The Recipient acknowledges the competitive value and confidential and proprietary nature of the Disclosing Party’s Confidential\nInformation and the damage that could result to the Disclosing Party if any part of the Confidential Information or the fact that the\nDisclosing Party and Recipient are talking about a prospective Opportunity and nature of such Opportunity were disclosed to any third\nparty or if the Recipient uses the Disclosing Party’s Confidential Information to directly or indirectly compete with the Disclosing Party or\nfor any other reason. Therefore, the Recipient agrees that neither it nor its Representatives (as hereinafter defined) will, directly or\nindirectly, (i) use the Disclosing Party’s Confidential Information in any way other than for the purpose of evaluating and proposing a\npossible business Opportunity with the Disclosing Party and/or (ii) disclose to any person, business or entity all or any part of the\nDisclosing Party’s Confidential Information, except as herein provided, and/or (iii) disclose to any person, business or entity either the fact\nthat the Disclosing Party’s Confidential Information has been made available or the fact that discussions or negotiations are taking place\nconcerning a possible business Opportunity between the parties or any of the terms, conditions or other facts with respect to any possible\nOpportunities, including the status thereof; except that each party may make such disclosure if, upon the advice of counsel, such disclosure\nmust be made in order to comply with applicable law, regulation or judicial process.\n(b) The Recipient shall be entitled to disclose the Disclosing Party’s Confidential Information to only those employees, officers, agents and\nadvisers of the Recipient (collectively, “Representatives”) necessary for evaluating the Opportunity, provided that the Recipient advises\neach such Representative of the obligations contained herein and that by receiving such information the Representatives are agreeing to be\nbound by this Agreement. The Recipient shall be responsible for any breach of this Agreement by it and/or any Representative and shall\nindemnify and hold the Disclosing Party harmless from any such breach.\nThe Recipient understands and agrees for itself and its Representatives that neither the Disclosing Party nor any of its affiliates, agents,\nadvisors or representatives (a) have made or make any representation or warranty, expressed or implied, as to the accuracy or completeness\nof the Confidential Information or (b) shall have any liability whatsoever to the Recipient or its Representatives relating to or resulting from\nthe use of the Disclosing Party’s Confidential Information or any errors therein or omissions therefrom. The only information that will have\nany legal effect will be specifically represented in a definitive written agreement and in no event will such definitive written agreement\ncontain any representation as to any projections.\nMUTUAL NON-DISCLOSURE AGREEMENT — PAGE 2\nIv.\nVL\nVIL\nVIIL.\nNo right or license to use the Disclosing Party’s Confidential Information or other interest therein is hereby granted to the Recipient other\nthan for the purpose of evaluating the Opportunity.\nThe obligations of secrecy and non-disclosure set forth herein shall not apply to: (a) information which at the time of disclosure to the\nRecipient is in the public domain; (b) information which after disclosure to the Recipient becomes generally available to the public by\npublication or otherwise through no fault of the Recipient or any of its Representatives; (c) information which the Recipient or any of its\nRepresentative can demonstrate was already in the possession of the Recipient or any such Representative and which was not acquired by\nthe Recipient or any such Representative, as the case may be, directly or indirectly from the Disclosing Party; (d) subject to Paragraph 6\nbelow, information the Recipient is required by court order, injunction, writ, law, rule or regulation to disclose; or (e) information which\nthe Recipient can demonstrate through competent written evidence was independently developed by or for the Recipient without use of or\nreliance on the Disclosing Party’s Confidential Information.\nIn the event that the Recipient and/or its Representatives are requested or required to disclose any of the Disclosing Party’s Confidential\nInformation in an investigatory, legal, regulatory or administrative proceeding, the Recipient shall, unless legally prohibited therefrom,\nprovide the Disclosing Party with prompt written notice thereof so that the Disclosing Party may, in its discretion, seek a protective order\nor other appropriate remedy. The Recipient agrees to consult and cooperate with the Disclosing Party in seeking a protective order or other\nappropriate remedy. The Recipient may disclose only that portion of the Confidential Information that it is legally required to disclose.\nThe Recipient further agrees that, without the prior written approval of the Disclosing Party, its Representatives who have been provided\nConfidential Information will not, directly or indirectly for a period of twelve (12) months from the date hereof, solicit for employment\nany employees of the Disclosing Party with whom they have contact or about whom they learn in connection with their review of the\nOpportunity. Notwithstanding the foregoing, Recipient’s Representatives may solicit or hire any person: (a) who responds to a public\nadvertisement or otherwise contacts Recipient on his or her own initiative, without any direct or indirect solicitation by Recipient, (b) who\nhas been brought to Recipient’s attention by an agency, search firm or other independent third party, or (c) with whom Recipient initiates\ndiscussions regarding employment after such person is no longer an employee of the Disclosing Party.\nThe Recipient shall return to the Disclosing Party upon demand any and all Confidential Information entrusted to it by the Disclosing Party\npursuant to this Agreement (including any and all copies, abstracts, compilations or analyses thereof and memoranda related thereto) or\nshall destroy all such Confidential Information and provide a certificate of destruction to the Disclosing Party signed\nMUTUAL NON-DISCLOSURE AGREEMENT — PAGE 3\nby the Recipient. The Recipient further agrees that neither it nor any Representative will copy in whole or in part any such Confidential\nInformation without the written consent of the Disclosing Party, except for the sole use of its Representatives in carrying out their\nevaluation of a possible business Opportunity with the Disclosing Party.\nIX. The obligation of secrecy and non-disclosure set forth in this Agreement shall remain in effect for a period of one year from the date\nhereof.\nX.  This Agreement and the respective rights and obligations of the parties hereto shall be governed by and determined in accordance with the\nlaws of the State of Florida, without giving effect to its conflict of laws, principles or rules.\nXI.  The Recipient agrees that money damages would not be a sufficient remedy for any breach of this Agreement by the Recipient or its\nRepresentatives and that in addition to all other remedies which may be available, the Disclosing Party may be entitled to specific\nperformance and injunctive or other equitable relief as a remedy for such breach and the Recipient further agrees to waive and to use its\nbest efforts to cause its Representatives to waive any requirement for securing or posting of any bond in connection with such remedy.\nXII. This Agreement, which includes all attached exhibits referenced herein, constitutes the entire agreement between Company and SunTrust\nwith respect to the subject matter hereof, and supersedes all proposals, oral or written, and all other communications between the parties\nwith respect to such subject matter.\nXIII. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the\nextent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement, and any such prohibition or\nunenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction. To the extent\npermitted by law, the parties waive any provision of law which renders any such provision prohibited or unenforceable in any respect.\nIN WITNESS WHEREQF, this Agreement has been executed by the duly authorized officers of the parties as of the day and year written\nbelow.\nSUNCOAST HOLDINGS, INC. SUNTRUST BANKS, INC.\nBy:  /s/ Steven M. Mariano By: /s/ Daniel Baltz\nName: Steven M. Mariano Name: Daniel Baltz\nTitle: Chief Executive Officer Title:  Group V.P,, Insurance Risk Management\nDate: 10-11-07 Date: 10-15-07\nMUTUAL NON-DISCLOSURE AGREEMENT — PAGE 4	EXHIBIT A\nMUTUAL NON-DISCLOSURE AGREEMENT\nOCTOBER 11, 2007\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT ("Agreement") is made this 11th day of October, 2007, by SunCoast Holdings, Inc., and all of\nits subsidiaries, affiliates and associations, with its principal place of business at 401 East Las Olas Blvd, Ft. Lauderdale, Florida, referred to\nhereafter as "Company," and SunTrust Banks, Inc., and all of its subsidiaries, affiliates and associations, with its principal place of business at\n303 Peachtree Street, Suite 700 in Atlanta, GA, referred to hereafter as "SunTrust."\nWHEREAS, Company wishes to evaluate a potential business opportunity with SunTrust involving SunTrust's subsidiary Madison\nInsurance\nCompany (hereinafter, the "Opportunity") and, in connection therewith, the parties will be exchanging Confidential Information\n(as\nhereafter defined); and\nWHEREAS, the parties have agreed to provide certain Confidential Information to each other and desire to protect that Confidential\nInformation and preserve the confidential and proprietary nature of the Confidential Information and the prospective Opportunity. The providing\nparty is referred to in this Agreement as the "Disclosing Party," while the receiving party is referred to as the "Recipient."\nNOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants, promises and agreements contained herein,\nincluding the agreement to provide Confidential Information to each other and to discuss a prospective Opportunity and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Recipient\nhereby agrees as follows:\nI.\n"Confidential Information" as used in this Agreement shall mean any and all materials, documents and information, whether oral or in\nwritten or other tangible medium or form, regarding the Disclosing Party's business or prospective business opportunities and plans, assets,\noperations, finances, employees, products and prospective products, and technology including, without limitation, any and all technical and\nnon-technical information, including patent, copyright, trade secret and proprietary information, techniques, sketches, ideas, schematics,\nconcepts, work in process, technology, models, inventions, material data, business methods, business policies, research and/or development,\ndrawings, know-how, processes, apparatus, equipment, algorithms, software programs, source code, object code, software source\ndocuments, and formulae related to the current, future and proposed products and services of the party. "Confidential Information" also\nincludes, without limitation, the Disclosing Party's information concerning research, experimental work, development, design details and\nspecifications, engineering, financial information, procurement requirements, customer and supplier lists, user information, personnel\nmatters, pricing information, business\nMUTUAL NON-DISCLOSURE AGREEMENT - PAGE 1\nforecasts, sales and merchandising and marketing plans and information related to the current, future and proposed products and services of\nthe Disclosing Party.\nII.\n(a) The Recipient acknowledges the competitive value and confidential and proprietary nature of the Disclosing Party's Confidential\nInformation and the damage that could result to the Disclosing Party if any part of the Confidential Information or the fact that the\nDisclosing Party and Recipient are talking about a prospective Opportunity and nature of such Opportunity were disclosed to any third\nparty or if the Recipient uses the Disclosing Party's Confidential Information to directly or indirectly compete with the Disclosing Party or\nfor any other reason. Therefore, the Recipient agrees that neither it nor its Representatives (as hereinafter defined) will, directly or\nindirectly, (i) use the Disclosing Party's Confidential Information in any way other than for the purpose of evaluating and proposing a\npossible business Opportunity with the Disclosing Party and/or (ii) disclose to any person, business or entity all or any part of the\nDisclosing Party's Confidential Information, except as herein provided, and/or (iii) disclose to any person, business or entity either the fact\nthat the Disclosing Party's Confidential Information has been made available or the fact that discussions or negotiations are taking place\nconcerning a possible business Opportunity between the parties or any of the terms, conditions or other facts with respect to any possible\nOpportunities, including the status thereof; except that each party may make such disclosure if, upon the advice of counsel, such disclosure\nmust be made in order to comply with applicable law, regulation or judicial process.\n(b) The Recipient shall be entitled to disclose the Disclosing Party's Confidential Information to only those employees, officers, agents and\nadvisers of the Recipient (collectively, "Representatives") necessary for evaluating the Opportunity, provided that the Recipient advises\neach such Representative of the obligations contained herein and that by receiving such information the Representatives are agreeing to\nbe\nbound by this Agreement. The Recipient shall be responsible for any breach of this Agreement by it and/or any Representative and shall\nindemnify and hold the Disclosing Party harmless from any such breach.\nIII.\nThe Recipient understands and agrees for itself and its Representatives that neither the Disclosing Party nor any of its affiliates, agents,\nadvisors or representatives (a) have made or make any representation or warranty, expressed or implied, as to the accuracy or completeness\nof the Confidential Information or (b) shall have any liability whatsoever to the Recipient or its Representatives relating to or resulting from\nthe use of the Disclosing Party's Confidential Information or any errors therein or omissions therefrom. The only information that will have\nany legal effect will be specifically represented in a definitive written agreement and in no event will such definitive written agreement\ncontain any representation as to any projections.\nMUTUAL NON-DISCLOSURE AGREEMENT PAGE 2\nIV. No right or license to use the Disclosing Party's Confidential Information or other interest therein is hereby granted to the Recipient other\nthan for the purpose of evaluating the Opportunity.\nV.\nThe obligations of secrecy and non-disclosure set forth herein shall not apply to: (a) information which at the time of disclosure to the\nRecipient is in the public domain; (b) information which after disclosure to the Recipient becomes generally available to the public by\npublication or otherwise through no fault of the Recipient or any of its Representatives; (c) information which the Recipient or\nany\nof\nits\nRepresentative can demonstrate was already in the possession of the Recipient or any such Representative and which was not acquired by\nthe Recipient or any such Representative, as the case may be, directly or indirectly from the Disclosing Party; (d) subject to Paragraph\n6\nbelow, information the Recipient is required by court order, injunction, writ, law, rule or regulation to disclose; or (e) information which\nthe Recipient can demonstrate through competent written evidence was independently developed by or for the Recipient without use of or\nreliance on the Disclosing Party's Confidential Information.\nVI.\nIn the event that the Recipient and/or its Representatives are requested or required to disclose any of the Disclosing Party's Confidentia\nInformation in an investigatory, legal, regulatory or administrative proceeding the Recipient shall, unless legally prohibited therefrom,\nprovide the Disclosing Party with prompt written notice thereof so that the Disclosing Party may, in its discretion, seek a protective order\nor other appropriate remedy. The Recipient agrees to consult and cooperate with the Disclosing Party in seeking a protective order or other\nappropriate remedy. The Recipient may disclose only that portion of the Confidential Information that it is legally required to disclose.\nVII.\nThe Recipient further agrees that, without the prior written approval of the Disclosing Party, its Representatives who have been provided\nConfidential Information will not, directly or indirectly for a period of twelve (12) months from the date hereof, solicit for employment\nany\nemployees of the Disclosing Party with whom they have contact or about whom they learn in connection with their review of the\nOpportunity. Notwithstanding the foregoing, Recipient's Representatives may solicit or hire any person: (a) who responds to a public\nadvertisement or otherwise contacts Recipient on his or her own initiative, without any direct or indirect solicitation by Recipient, (b) who\nhas been brought to Recipient's attention by an agency, search firm or other independent third party, or (c) with whom Recipient initiates\ndiscussions regarding employment after such person is no longer an employee of the Disclosing Party.\nVIII. The Recipient shall return to the Disclosing Party upon demand any and all Confidential Information entrusted to it by the Disclosing Party\npursuant to this Agreement (including any and all copies, abstracts, compilations or analyses thereof and memoranda related thereto) or\nshall destroy all such Confidential Information and provide a certificate of destruction to the Disclosing Party signed\nMUTUAL NON-DISCLOSURE AGREEMENT - PAGE 3\nby the Recipient. The Recipient further agrees that neither it nor any Representative will copy in whole or in part any such Confidential\nInformation without the written consent of the Disclosing Party, except for the sole use of its Representatives in carrying out their\nevaluation of a possible business Opportunity with the Disclosing Party.\nIX.\nThe obligation of secrecy and non-disclosure set forth in this Agreement shall remain in effect for a period of one year from the date\nhereof.\nX.\nThis Agreement and the respective rights and obligations of the parties hereto shall be governed by and determined in accordance with the\nlaws of the State of Florida, without giving effect to its conflict of laws, principles or rules.\nXI. The Recipient agrees that money damages would not be a sufficient remedy for any breach of this Agreement by the Recipient or its\nRepresentatives and that in addition to all other remedies which may be available, the Disclosing Party may be entitled to specific\nperformance and injunctive or other equitable relief as a remedy for such breach and the Recipient further agrees to waive and to use its\nbest efforts to cause its Representatives to waive any requirement for securing or posting of any bond in connection with such remedy.\nXII.\nThis Agreement, which includes all attached exhibits referenced herein, constitutes the entire agreement between Company and SunTrust\nwith respect to the subject matter hereof, and supersedes all proposals, oral or written, and all other communications between the parties\nwith respect to such subject matter.\nXIII. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to\nthe\nextent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement, and any such prohibition or\nunenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction. To the extent\npermitted by law, the parties waive any provision of law which renders any such provision prohibited or unenforceable in any respect.\nIN WITNESS WHEREOF, this Agreement has been executed by the duly authorized officers of the parties as of the day and year written\nbelow.\nSUNCOAST HOLDINGS, INC.\nSUNTRUST BANKS, INC.\nBy:\n/s/ Steven M. Mariano\nBy:\n/s/ Daniel Baltz\nName: Steven M. Mariano\nName: Daniel Baltz\nTitle: Chief Executive Officer\nTitle: Group V.P., Insurance Risk Management\nDate: 10-11-07\nDate: 10-15-07\nMUTUAL NON-DISCLOSURE AGREEMENT - PAGE 4	EXHIBIT A\nMUTUAL NON-DISCLOSURE AGREEMENT\nOCTOBER 11, 2007\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) is made this 11th day of October, 2007, by SunCoast Holdings, Inc., and all of\nits subsidiaries, affiliates and associations, with its principal place of business at 401 East Las Olas Blvd, Ft. Lauderdale, Florida, referred to\nhereafter as “Company,” and SunTrust Banks, Inc., and all of its subsidiaries, affiliates and associations, with its principal place of business at\n303 Peachtree Street, Suite 700 in Atlanta, GA, referred to hereafter as “SunTrust.”\nWHEREAS, Company wishes to evaluate a potential business opportunity with SunTrust involving SunTrust’s subsidiary Madison\nInsurance Company (hereinafter, the “Opportunity”) and, in connection therewith, the parties will be exchanging Confidential Information (as\nhereafter defined); and\nWHEREAS, the parties have agreed to provide certain Confidential Information to each other and desire to protect that Confidential\nInformation and preserve the confidential and proprietary nature of the Confidential Information and the prospective Opportunity. The providing\nparty is referred to in this Agreement as the “Disclosing Party,” while the receiving party is referred to as the “Recipient.”\nNOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants, promises and agreements contained herein,\nincluding the agreement to provide Confidential Information to each other and to discuss a prospective Opportunity and for other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Recipient\nhereby agrees as follows:\nI.\n“Confidential Information” as used in this Agreement shall mean any and all materials, documents and information, whether oral or in\nwritten or other tangible medium or form, regarding the Disclosing Party’s business or prospective business opportunities and plans, assets,\noperations, finances, employees, products and prospective products, and technology including, without limitation, any and all technical and\nnon-technical information, including patent, copyright, trade secret and proprietary information, techniques, sketches, ideas, schematics,\nconcepts, work in process, technology, models, inventions, material data, business methods, business policies, research and/or development,\ndrawings, know-how, processes, apparatus, equipment, algorithms, software programs, source code, object code, software source\ndocuments, and formulae related to the current, future and proposed products and services of the party. “Confidential Information” also\nincludes, without limitation, the Disclosing Party’s information concerning research, experimental work, development, design details and\nspecifications, engineering, financial information, procurement requirements, customer and supplier lists, user information, personnel\nmatters, pricing information, business\nMUTUAL NON-DISCLOSURE AGREEMENT — PAGE 1\nforecasts, sales and merchandising and marketing plans and information related to the current, future and proposed products and services of\nthe Disclosing Party.\nII. (a) The Recipient acknowledges the competitive value and confidential and proprietary nature of the Disclosing Party’s Confidential\nInformation and the damage that could result to the Disclosing Party if any part of the Confidential Information or the fact that the\nDisclosing Party and Recipient are talking about a prospective Opportunity and nature of such Opportunity were disclosed to any third\nparty or if the Recipient uses the Disclosing Party’s Confidential Information to directly or indirectly compete with the Disclosing Party or\nfor any other reason. Therefore, the Recipient agrees that neither it nor its Representatives (as hereinafter defined) will, directly or\nindirectly, (i) use the Disclosing Party’s Confidential Information in any way other than for the purpose of evaluating and proposing a\npossible business Opportunity with the Disclosing Party and/or (ii) disclose to any person, business or entity all or any part of the\nDisclosing Party’s Confidential Information, except as herein provided, and/or (iii) disclose to any person, business or entity either the fact\nthat the Disclosing Party’s Confidential Information has been made available or the fact that discussions or negotiations are taking place\nconcerning a possible business Opportunity between the parties or any of the terms, conditions or other facts with respect to any possible\nOpportunities, including the status thereof; except that each party may make such disclosure if, upon the advice of counsel, such disclosure\nmust be made in order to comply with applicable law, regulation or judicial process.\n(b) The Recipient shall be entitled to disclose the Disclosing Party’s Confidential Information to only those employees, officers, agents and\nadvisers of the Recipient (collectively, “Representatives”) necessary for evaluating the Opportunity, provided that the Recipient advises\neach such Representative of the obligations contained herein and that by receiving such information the Representatives are agreeing to be\nbound by this Agreement. The Recipient shall be responsible for any breach of this Agreement by it and/or any Representative and shall\nindemnify and hold the Disclosing Party harmless from any such breach.\nIII. The Recipient understands and agrees for itself and its Representatives that neither the Disclosing Party nor any of its affiliates, agents,\nadvisors or representatives (a) have made or make any representation or warranty, expressed or implied, as to the accuracy or completeness\nof the Confidential Information or (b) shall have any liability whatsoever to the Recipient or its Representatives relating to or resulting from\nthe use of the Disclosing Party’s Confidential Information or any errors therein or omissions therefrom. The only information that will have\nany legal effect will be specifically represented in a definitive written agreement and in no event will such definitive written agreement\ncontain any representation as to any projections.\nMUTUAL NON-DISCLOSURE AGREEMENT — PAGE 2\nIV. No right or license to use the Disclosing Party’s Confidential Information or other interest therein is hereby granted to the Recipient other\nthan for the purpose of evaluating the Opportunity.\nV. The obligations of secrecy and non-disclosure set forth herein shall not apply to: (a) information which at the time of disclosure to the\nRecipient is in the public domain; (b) information which after disclosure to the Recipient becomes generally available to the public by\npublication or otherwise through no fault of the Recipient or any of its Representatives; (c) information which the Recipient or any of its\nRepresentative can demonstrate was already in the possession of the Recipient or any such Representative and which was not acquired by\nthe Recipient or any such Representative, as the case may be, directly or indirectly from the Disclosing Party; (d) subject to Paragraph 6\nbelow, information the Recipient is required by court order, injunction, writ, law, rule or regulation to disclose; or (e) information which\nthe Recipient can demonstrate through competent written evidence was independently developed by or for the Recipient without use of or\nreliance on the Disclosing Party’s Confidential Information.\nVI. In the event that the Recipient and/or its Representatives are requested or required to disclose any of the Disclosing Party’s Confidential\nInformation in an investigatory, legal, regulatory or administrative proceeding, the Recipient shall, unless legally prohibited therefrom,\nprovide the Disclosing Party with prompt written notice thereof so that the Disclosing Party may, in its discretion, seek a protective order\nor other appropriate remedy. The Recipient agrees to consult and cooperate with the Disclosing Party in seeking a protective order or other\nappropriate remedy. The Recipient may disclose only that portion of the Confidential Information that it is legally required to disclose.\nVII. The Recipient further agrees that, without the prior written approval of the Disclosing Party, its Representatives who have been provided\nConfidential Information will not, directly or indirectly for a period of twelve (12) months from the date hereof, solicit for employment\nany employees of the Disclosing Party with whom they have contact or about whom they learn in connection with their review of the\nOpportunity. Notwithstanding the foregoing, Recipient’s Representatives may solicit or hire any person: (a) who responds to a public\nadvertisement or otherwise contacts Recipient on his or her own initiative, without any direct or indirect solicitation by Recipient, (b) who\nhas been brought to Recipient’s attention by an agency, search firm or other independent third party, or (c) with whom Recipient initiates\ndiscussions regarding employment after such person is no longer an employee of the Disclosing Party.\nVIII. The Recipient shall return to the Disclosing Party upon demand any and all Confidential Information entrusted to it by the Disclosing Party\npursuant to this Agreement (including any and all copies, abstracts, compilations or analyses thereof and memoranda related thereto) or\nshall destroy all such Confidential Information and provide a certificate of destruction to the Disclosing Party signed\nMUTUAL NON-DISCLOSURE AGREEMENT — PAGE 3\nby the Recipient. The Recipient further agrees that neither it nor any Representative will copy in whole or in part any such Confidential\nInformation without the written consent of the Disclosing Party, except for the sole use of its Representatives in carrying out their\nevaluation of a possible business Opportunity with the Disclosing Party.\nIX. The obligation of secrecy and non-disclosure set forth in this Agreement shall remain in effect for a period of one year from the date\nhereof.\nX. This Agreement and the respective rights and obligations of the parties hereto shall be governed by and determined in accordance with the\nlaws of the State of Florida, without giving effect to its conflict of laws, principles or rules.\nXI. The Recipient agrees that money damages would not be a sufficient remedy for any breach of this Agreement by the Recipient or its\nRepresentatives and that in addition to all other remedies which may be available, the Disclosing Party may be entitled to specific\nperformance and injunctive or other equitable relief as a remedy for such breach and the Recipient further agrees to waive and to use its\nbest efforts to cause its Representatives to waive any requirement for securing or posting of any bond in connection with such remedy.\nXII. This Agreement, which includes all attached exhibits referenced herein, constitutes the entire agreement between Company and SunTrust\nwith respect to the subject matter hereof, and supersedes all proposals, oral or written, and all other communications between the parties\nwith respect to such subject matter.\nXIII. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the\nextent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement, and any such prohibition or\nunenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction. To the extent\npermitted by law, the parties waive any provision of law which renders any such provision prohibited or unenforceable in any respect.\nIN WITNESS WHEREOF, this Agreement has been executed by the duly authorized officers of the parties as of the day and year written\nbelow.\nSUNCOAST HOLDINGS, INC.\nSUNTRUST BANKS, INC.\nBy: /s/ Steven M. Mariano\nBy: /s/ Daniel Baltz\nName: Steven M. Mariano\nName: Daniel Baltz\nTitle: Chief Executive Officer\nTitle: Group V.P., Insurance Risk Management\nDate: 10-11-07\nDate: 10-15-07\nMUTUAL NON-DISCLOSURE AGREEMENT — PAGE 4
+2a5570f9e3da19693485209ccba614e7.pdf	effective_date jurisdiction party term	EX-10.2 7 dex102.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.2\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nIn connection with a possible business transaction (the “Transaction”) involving Manpower Inc. (“COMPANY”) and Comsys IT Partners, Inc.\n(“COMSYS”), collectively the “Parties,” certain information may be requested by both COMPANY and COMSYS relating to the other party or the\nTransaction and the Parties have agreed to enter into this Agreement. All such information (whether written or oral) furnished (whether before, on or\nafter the date hereof) by either company, or its directors, officers, employees, representatives (including, without limitation, financial advisors,\nfinancing sources, attorneys, consultants and accountants) or agents (collectively, “Representatives”) to the other party and all analyses,\ncompilations, forecasts, studies or other documents prepared by the Parties or their Representatives in connection with their review of, or their\ninterest in, the Transaction which contain, reflect, are generated from or are based upon, in whole or in part, any such information is hereinafter\nreferred to as the “Information.” The term Information will not, however, include information which (i) is or becomes generally available to the\npublic other than as a result of a disclosure by the receiving Party or its Representatives that is prohibited by this Agreement; (ii) is or becomes\navailable to the receiving Party on a nonconfidential basis from a source which, to the best of its knowledge, is not known to be prohibited from\ndisclosing such information to the receiving Party by a legal, contractual or fiduciary obligation to either Party; (iii) was in possession of the\nreceiving Party prior to the disclosure of the information pursuant to this Agreement, provided that the source of such information was not known by\nthe receiving Party, after due inquiry, to be subject to an obligation not to disclose such information; or (iv) is independently developed without\nreference to or use of the Information.\nAccordingly, the Parties hereby agree that:\n1. The Parties and their Representatives (i) will keep the Information strictly confidential and will not (except as required by applicable law,\nregulation or legal process, and only after compliance with paragraph 2 below), without the prior written consent of the other party, disclose\nany Information in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided,\nhowever, that the Parties may reveal the Information to their Representatives (a) who need to know the Information for the purpose of\nevaluating the Transaction, (b) who are informed by the Parties of the confidential nature of the Information and are provided with a copy of\nthis Agreement, (c) who agree not to disclose any of the Information to any other party and (d) who agree to act in accordance with the terms\nof this letter agreement to the same extent as if they were parties hereto. The Parties will cause their Representatives to observe the terms of\nthis letter agreement, and they will be responsible for any breach of this agreement by any of their Representatives.\n2. In the event that the Parties or any of their Representatives are requested pursuant to, or required by, applicable law, regulation, rules of any\nnational stock exchange, or legal process to disclose any of the Information, the Parties must notify each other promptly so that they may seek\na protective order or other appropriate remedy or, in the sole discretion of the party that initially furnished such Information, waive compliance\nwith the terms of this letter agreement. In the event that no such protective order or other remedy is\nobtained, or that the Parties waive compliance with the terms of this letter agreement, the Parties will furnish only that portion of the\nInformation which they are advised by counsel is legally required and will exercise all commercially reasonable efforts to obtain reliable\nassurance that confidential treatment will be accorded the Information.\n3. If COMPANY or COMSYS determines not to proceed with the Transaction, they will promptly inform the other Party of that decision and, in\nthat case, and at any time upon request of COMPANY or COMSYS or any of their Representatives, the other party will either (i) promptly\ndestroy all copies of the written Information in its or its Representatives’ possession and confirm such destruction to the initiating company in\nwriting or (ii) promptly deliver to the initiator of such action all copies of the written Information in its or its Representatives’ possession. Any\noral Information will continue to be subject to the terms of this letter agreement. Notwithstanding anything contained in the foregoing to the\ncontrary, either Party may retain in the files of its legal counsel such documents and records as are required to be maintained in order to satisfy\nany law, rule, or regulation to which the Party is subject or for the purpose of determining its continuing obligations under this Agreement,\nincluding any rule of any national stock exchange. Furthermore, if a legal proceeding has been instituted to seek disclosure of the Information,\nsuch material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.\n4. Neither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this\nAgreement or the discussions or negotiations covered by this Agreement, including the fact that any such discussions have taken or are taking\nplace, or any proposal relating thereto, including the terms and conditions thereof, without the prior written consent of the other Party.\nNotwithstanding any term or implication herein to the contrary, either Party may disclose Information and any of the information described in\nthe preceding paragraph to the extent such Party determines in good faith upon advice of counsel that such disclosure is required in connection\nwith such Party’s disclosure responsibilities under the securities laws (including regulations, rules and interpretations promulgated or issued by\na regulatory body), so long as such Party gives the other party such prior notice of such disclosure, and such opportunity to review, comment\non, and lawfully limit the proposed disclosure, as is reasonably available under the circumstances.\n5. The Parties hereby acknowledge that, unless and until a definitive agreement between COMPANY and COMSYS with respect to any\nTransaction has been executed and delivered, neither the COMPANY nor COMSYS will be under any legal obligation of any kind whatsoever\nwith respect to such Transaction and hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection\nwith any Transaction. In addition, neither Party will be under any obligation to negotiate a definitive agreement, by virtue of this or any written\nor oral expression, discussion or negotiation with respect to such Transaction by any or either of the Representatives of the Parties except, in\nthe case of this Agreement, for the matters specifically agreed to herein.\n2\n6. The Parties hereby agree that money damages may not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of\nany breach of the provisions of this Agreement, the breaching party agrees that the non-breaching party may be entitled to equitable relief,\nincluding injunction and specific performance. Such remedy may not be deemed to be the exclusive remedy for the breach of this Agreement\nbut may be in addition to all other remedies available at law or equity to the non-breaching party. In the event that the non-breaching party\nsuccessfully enforces the obligations of the breaching party hereunder, the breaching party shall reimburse the non-breaching party for all\nreasonable costs and expenses, including legal counsel, incurred by the non-breaching party in this regard.\n7. Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and receiving Party agrees that\ndisclosing Party and its employees and agents shall have no liability to receiving Party resulting from any use of the Information.\n8. COMPANY agrees that, for a period of eighteen (18) months from the date of this Agreement, unless COMPANY shall have been specifically\ninvited in writing by COMSYS, neither COMPANY nor its Representatives as advisor to COMPANY as principal will in any manner, directly\nor indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any\nother person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities\n(or beneficial ownership thereof) or assets of COMSYS or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business\ncombination involving COMSYS or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other\nextraordinary transaction with respect to COMSYS or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in\nthe proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in\nany way participate in a “group” (as defined in the Securities Act of 1934) with respect to the securities of COMSYS; (c) otherwise act, alone\nor in concert with others, to seek to control or influence management or the board of directors or policies of COMSYS; (d) take any action\nwhich might force COMSYS to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any\ndiscussions or arrangements with any third party with respect to any of the foregoing; provided, however, that if COMSYS makes a public\nannouncement that it has entered into a definitive agreement that contemplates a business combination transaction between COMSYS and a\nthird party that would result in a change of control of COMSYS, or in the event any third party has made a tender offer for a majority of the\nthen outstanding securities of COMSYS entitled to be voted generally in the election of directors, then COMPANY may make a proposal to\nthe board of directors of COMSYS with respect to a business combination transaction involving COMPANY and COMSYS.\n9. The Parties hereby acknowledge that in the event that any provision or portion of this letter agreement is determined to be invalid, illegal or\nunenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in\nfull force and effect to the fullest extent permitted by applicable law.\n3\nThe Parties further acknowledge that such invalid, illegal or unenforceable provision shall be substituted with a provision as similar in intent\nand economic effect to such provision as may be possible and yet be valid, legal and enforceable.\n10. The Parties hereby acknowledge that neither the failure nor delay by any party in exercising any right, power or privilege existing in\nconnection with this Agreement shall operate or be construed to be a waiver of such right, power or privilege. No single or partial exercise\nthereof will preclude any other or further exercise thereof or the exercise of any other right hereunder or otherwise legally available. No waiver\nhereunder shall be considered valid or enforceable, except by a written agreement signed by the Parties and no such waiver shall be deemed a\nwaiver of any subsequent instance or circumstance of the same or similar nature.\n11. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any and all other agreements, if\nany, between the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with\nrespect thereto. This Agreement contains the entire understanding between the Parties and supersedes all prior collateral communications, if\nany, regarding the subject matter hereof. This Agreement shall govern all communications between the Parties that are made during the period\nfrom the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent\ncommunications shall not be so governed. No modification or amendment of this Agreement and no waiver of the terms and conditions hereof,\nin whole or in part, shall be binding, except by a written agreement signed by the Parties.\n12. This Agreement shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and will be\nbinding upon the Parties and their respective Representatives, successors and permitted assigns.\n13. The validity, interpretation, performance and enforcement of this Agreement, its construction and the rights, remedies and obligations arising\nby, under, through or on account of it, shall be governed and construed in accordance with the laws of the State of New York, regardless of the\nlaws that might otherwise govern under applicable principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally\nconsent to the sole and exclusive venue and jurisdiction of the courts of the State of New York for any action, suit or proceeding arising out of\nor relating to this Agreement and hereby agree not to commence any action, suit or proceeding related thereto except in such courts.\n14. Except as otherwise provided in paragraph 8 above, this Agreement and all obligations of the parties hereunder, notwithstanding anything to\nthe contrary that may be contained herein, shall terminate one (1) year from the date of this Agreement.\n4\nManpower Inc.,\na Wisconsin corporation\nComsys IT Partners, Inc.,\na Delaware corporation\nBy: /s/ Michael J. Lynch\nBy: /s/ David L. Kerr\nName: Michael J. Lynch\nName: David L. Kerr\nVice President, General Counsel International\nSenior Vice President\nTitle\nTitle\nNovember 19, 2009\n11/19/09\nDate\nDate\n5	EX-10.2 7 dex102.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.2\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nIn connection with a possible business transaction (the “Transaction”) involving Manpower Inc. (“COMPANY”) and Comsys IT Partners, Inc.\n(“COMSYS”), collectively the “Parties,” certain information may be requested by both COMPANY and COMSYS relating to the other party or the\nTransaction and the Parties have agreed to enter into this Agreement. All such information (whether written or oral) furnished (whether before, on or\nafter the date hereof) by either company, or its directors, officers, employees, representatives (including, without limitation, financial advisors,\nfinancing sources, attorneys, consultants and accountants) or agents (collectively, “Representatives™) to the other party and all analyses,\ncompilations, forecasts, studies or other documents prepared by the Parties or their Representatives in connection with their review of, or their\ninterest in, the Transaction which contain, reflect, are generated from or are based upon, in whole or in part, any such information is hereinafter\nreferred to as the “Information.” The term Information will not, however, include information which (i) is or becomes generally available to the\npublic other than as a result of a disclosure by the receiving Party or its Representatives that is prohibited by this Agreement; (ii) is or becomes\navailable to the receiving Party on a nonconfidential basis from a source which, to the best of its knowledge, is not known to be prohibited from\ndisclosing such information to the receiving Party by a legal, contractual or fiduciary obligation to either Party; (iii) was in possession of the\nreceiving Party prior to the disclosure of the information pursuant to this Agreement, provided that the source of such information was not known by\nthe receiving Party, after due inquiry, to be subject to an obligation not to disclose such information; or (iv) is independently developed without\nreference to or use of the Information.\nAccordingly, the Parties hereby agree that:\n1. The Parties and their Representatives (i) will keep the Information strictly confidential and will not (except as required by applicable law,\nregulation or legal process, and only after compliance with paragraph 2 below), without the prior written consent of the other party, disclose\nany Information in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided,\nhowever, that the Parties may reveal the Information to their Representatives (a) who need to know the Information for the purpose of\nevaluating the Transaction, (b) who are informed by the Parties of the confidential nature of the Information and are provided with a copy of\nthis Agreement, (c) who agree not to disclose any of the Information to any other party and (d) who agree to act in accordance with the terms\nof this letter agreement to the same extent as if they were parties hereto. The Parties will cause their Representatives to observe the terms of\nthis letter agreement, and they will be responsible for any breach of this agreement by any of their Representatives.\n2. Inthe event that the Parties or any of their Representatives are requested pursuant to, or required by, applicable law, regulation, rules of any\nnational stock exchange, or legal process to disclose any of the Information, the Parties must notify each other promptly so that they may seek\na protective order or other appropriate remedy or, in the sole discretion of the party that initially furnished such Information, waive compliance\nwith the terms of this letter agreement. In the event that no such protective order or other remedy is\nobtained, or that the Parties waive compliance with the terms of this letter agreement, the Parties will furnish only that portion of the\nInformation which they are advised by counsel is legally required and will exercise all commercially reasonable efforts to obtain reliable\nassurance that confidential treatment will be accorded the Information.\nIf COMPANY or COMSYS determines not to proceed with the Transaction, they will promptly inform the other Party of that decision and, in\nthat case, and at any time upon request of COMPANY or COMSY S or any of their Representatives, the other party will either (i) promptly\ndestroy all copies of the written Information in its or its Representatives’ possession and confirm such destruction to the initiating company in\nwriting or (ii) promptly deliver to the initiator of such action all copies of the written Information in its or its Representatives’ possession. Any\noral Information will continue to be subject to the terms of this letter agreement. Notwithstanding anything contained in the foregoing to the\ncontrary, either Party may retain in the files of its legal counsel such documents and records as are required to be maintained in order to satisfy\nany law, rule, or regulation to which the Party is subject or for the purpose of determining its continuing obligations under this Agreement,\nincluding any rule of any national stock exchange. Furthermore, if a legal proceeding has been instituted to seek disclosure of the Information,\nsuch material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.\nNeither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this\nAgreement or the discussions or negotiations covered by this Agreement, including the fact that any such discussions have taken or are taking\nplace, or any proposal relating thereto, including the terms and conditions thereof, without the prior written consent of the other Party.\nNotwithstanding any term or implication herein to the contrary, either Party may disclose Information and any of the information described in\nthe preceding paragraph to the extent such Party determines in good faith upon advice of counsel that such disclosure is required in connection\nwith such Party’s disclosure responsibilities under the securities laws (including regulations, rules and interpretations promulgated or issued by\na regulatory body), so long as such Party gives the other party such prior notice of such disclosure, and such opportunity to review, comment\non, and lawfully limit the proposed disclosure, as is reasonably available under the circumstances.\nThe Parties hereby acknowledge that, unless and until a definitive agreement between COMPANY and COMSY'S with respect to any\nTransaction has been executed and delivered, neither the COMPANY nor COMSY S will be under any legal obligation of any kind whatsoever\nwith respect to such Transaction and hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection\nwith any Transaction. In addition, neither Party will be under any obligation to negotiate a definitive agreement, by virtue of this or any written\nor oral expression, discussion or negotiation with respect to such Transaction by any or either of the Representatives of the Parties except, in\nthe case of this Agreement, for the matters specifically agreed to herein.\n2\nThe Parties hereby agree that money damages may not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of\nany breach of the provisions of this Agreement, the breaching party agrees that the non-breaching party may be entitled to equitable relief,\nincluding injunction and specific performance. Such remedy may not be deemed to be the exclusive remedy for the breach of this Agreement\nbut may be in addition to all other remedies available at law or equity to the non-breaching party. In the event that the non-breaching party\nsuccessfully enforces the obligations of the breaching party hereunder, the breaching party shall reimburse the non-breaching party for all\nreasonable costs and expenses, including legal counsel, incurred by the non-breaching party in this regard.\nDisclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and receiving Party agrees that\ndisclosing Party and its employees and agents shall have no liability to receiving Party resulting from any use of the Information.\nCOMPANY agrees that, for a period of eighteen (18) months from the date of this Agreement, unless COMPANY shall have been specifically\ninvited in writing by COMSY'S, neither COMPANY nor its Representatives as advisor to COMPANY as principal will in any manner, directly\nor indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any\nother person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities\n(or beneficial ownership thereof) or assets of COMSYS or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business\ncombination involving COMSYS or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other\nextraordinary transaction with respect to COMSYS or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in\nthe proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in\nany way participate in a “group” (as defined in the Securities Act of 1934) with respect to the securities of COMSYS; (c) otherwise act, alone\nor in concert with others, to seek to control or influence management or the board of directors or policies of COMSYS; (d) take any action\nwhich might force COMSYS to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any\ndiscussions or arrangements with any third party with respect to any of the foregoing; provided, however, that if COMSYS makes a public\nannouncement that it has entered into a definitive agreement that contemplates a business combination transaction between COMSYS and a\nthird party that would result in a change of control of COMSYS, or in the event any third party has made a tender offer for a majority of the\nthen outstanding securities of COMSY S entitled to be voted generally in the election of directors, then COMPANY may make a proposal to\nthe board of directors of COMSYS with respect to a business combination transaction involving COMPANY and COMSYS.\nThe Parties hereby acknowledge that in the event that any provision or portion of this letter agreement is determined to be invalid, illegal or\nunenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in\nfull force and effect to the fullest extent permitted by applicable law.\n3\n10. 11. 12. 13. 14. The Parties further acknowledge that such invalid, illegal or unenforceable provision shall be substituted with a provision as similar in intent\nand economic effect to such provision as may be possible and yet be valid, legal and enforceable.\nThe Parties hereby acknowledge that neither the failure nor delay by any party in exercising any right, power or privilege existing in\nconnection with this Agreement shall operate or be construed to be a waiver of such right, power or privilege. No single or partial exercise\nthereof will preclude any other or further exercise thereof or the exercise of any other right hereunder or otherwise legally available. No waiver\nhereunder shall be considered valid or enforceable, except by a written agreement signed by the Parties and no such waiver shall be deemed a\nwaiver of any subsequent instance or circumstance of the same or similar nature.\nThis Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any and all other agreements, if\nany, between the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with\nrespect thereto. This Agreement contains the entire understanding between the Parties and supersedes all prior collateral communications, if\nany, regarding the subject matter hereof. This Agreement shall govern all communications between the Parties that are made during the period\nfrom the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent\ncommunications shall not be so governed. No modification or amendment of this Agreement and no waiver of the terms and conditions hereof,\nin whole or in part, shall be binding, except by a written agreement signed by the Parties.\nThis Agreement shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and will be\nbinding upon the Parties and their respective Representatives, successors and permitted assigns.\nThe validity, interpretation, performance and enforcement of this Agreement, its construction and the rights, remedies and obligations arising\nby, under, through or on account of it, shall be governed and construed in accordance with the laws of the State of New York, regardless of the\nlaws that might otherwise govern under applicable principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally\nconsent to the sole and exclusive venue and jurisdiction of the courts of the State of New York for any action, suit or proceeding arising out of\nor relating to this Agreement and hereby agree not to commence any action, suit or proceeding related thereto except in such courts.\nExcept as otherwise provided in paragraph 8 above, this Agreement and all obligations of the parties hereunder, notwithstanding anything to\nthe contrary that may be contained herein, shall terminate one (1) year from the date of this Agreement.\n4\nManpower Inc.,\na Wisconsin corporation\nBy: /s/ Michael J. Lynch\nName: Michael J. Lynch\nVice President, General Counsel International\nTitle\nNovember 19, 2009\nDate\nComsys IT Partners, Inc.,\na Delaware corporation\nBy: /s/ David L. Kerr\nName: David L. Kerr\nSenior Vice President\nTitle\n11/19/09\nDate	EX-10.2 7 dex102.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.2\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nIn connection with a possible business transaction (the "Transaction") involving Manpower Inc. ("COMPANY") and Comsys IT Partners,\nInc.\n("COMSYS"), collectively the "Parties," certain information may be requested by both COMPANY and COMSYS relating to the other party or the\nTransaction and the Parties have agreed to enter into this Agreement. All such information (whether written or oral) furnished (whether before, on or\nafter the date hereof) by either company, or its directors, officers, employees, representatives (including, without limitation, financial advisors,\nfinancing sources, attorneys, consultants and accountants) or agents (collectively, "Representatives") to the other party and all analyses,\ncompilations, forecasts, studies or other documents prepared by the Parties or their Representatives in connection with their review of, or their\ninterest in, the Transaction which contain, reflect, are generated from or are based upon, in whole or in part, any such information is hereinafter\nreferred to as the "Information." The term Information will not, however, include information which (i) is or becomes generally available to the\npublic other than as a result of a disclosure by the receiving Party or its Representatives that is prohibited by this Agreement; (ii) is or becomes\navailable\nto\nthe\nreceiving\nParty\non\na\nnonconfidential\nbasis\nfrom\na\nsource\nwhich,\nto\nthe\nbest\nof\nits\nknowledge,\nis\nnot\nknown\nto\nbe\nprohibited\nfrom\ndisclosing such information to the receiving Party by a legal, contractual or fiduciary obligation to either Party; (iii) was in possession of the\nreceiving Party prior to the disclosure of the information pursuant to this Agreement, provided that the source of such information was not known\nby\nthe receiving Party, after due inquiry, to be subject to an obligation not to disclose such information; or (iv) is independently developed without\nreference to or use of the Information.\nAccordingly, the Parties hereby agree that:\n1.\nThe Parties and their Representatives (i) will keep the Information strictly confidential and will not (except as required by applicable law,\nregulation or legal process, and only after compliance with paragraph 2 below), without the prior written consent of the other party, disclose\nany Information in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided,\nhowever, that the Parties may reveal the Information to their Representatives (a) who need to know the Information for the purpose of\nevaluating the Transaction, (b) who are informed by the Parties of the confidential nature of the Information and are provided with a copy of\nthis Agreement, (c) who agree not to disclose any of the Information to any other party and (d) who agree to act in accordance with the terms\nof\nthis letter agreement to the same extent as if they were parties hereto. The Parties will cause their Representatives to observe the terms of\nthis letter agreement, and they will be responsible for any breach of this agreement by any of their Representatives.\n2. In the event that the Parties or any of their Representatives are requested pursuant to, or required by, applicable law, regulation, rules of any\nnational stock exchange, or legal process to disclose any of the Information, the Parties must notify each other promptly so that they may seek\na protective order or other appropriate remedy or, in the sole discretion of the party that initially furnished such Information, waive compliance\nwith the terms of this letter agreement. In the event that no such protective order or other remedy is\nobtained, or that the Parties waive compliance with the terms of this letter agreement, the Parties will furnish only that portion\nof\nthe\nInformation which they are advised by counsel is legally required and will exercise all commercially reasonable efforts to obtain reliable\nassurance that confidential treatment will be accorded the Information.\n3.\nIf COMPANY or COMSYS determines not to proceed with the Transaction, they will promptly inform the other Party of that decision and, in\nthat case, and at any time upon request of COMPANY or COMSYS or any of their Representatives, the other party will either (i) promptly\ndestroy all copies of the written Information in its or its Representatives' possession and confirm such destruction to the initiating company in\nwriting or (ii) promptly deliver to the initiator of such action all copies of the written Information in its or its Representatives' possession. Any\noral Information will continue to be subject to the terms of this letter agreement. Notwithstanding anything contained in the foregoing to the\ncontrary, either Party may retain in the files of its legal counsel such documents and records as are required to be maintained in order to satisfy\nany law, rule, or regulation to which the Party is subject or for the purpose of determining its continuing obligations under this Agreement,\nincluding any rule of any national stock exchange. Furthermore, if a legal proceeding has been instituted to seek disclosure of the Information,\nsuch material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.\n4.\nNeither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this\nAgreement or the discussions or negotiations covered by this Agreement, including the fact that any such discussions have taken or are taking\nplace, or any proposal relating thereto, including the terms and conditions thereof, without the prior written consent of the other Party.\nNotwithstanding any term or implication herein to the contrary, either Party may disclose Information and any of the information described in\nthe preceding paragraph to the extent such Party determines in good faith upon advice of counsel that such disclosure is required in connection\nwith such Party's disclosure responsibilities under the securities laws (including regulations, rules and interpretations promulgated or issued by\na\nregulatory body), SO long as such Party gives the other party such prior notice of such disclosure, and such opportunity to review, comment\non, and lawfully limit the proposed disclosure, as is reasonably available under the circumstances.\n5.\nThe Parties hereby acknowledge that, unless and until a definitive agreement between COMPANY and COMSYS with respect to any\nTransaction has been executed and delivered, neither the COMPANY nor COMSYS will be under any legal obligation of any kind whatsoever\nwith respect to such Transaction and hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection\nwith any Transaction. In addition, neither Party will be under any obligation to negotiate a definitive agreement, by virtue of this or any written\nor oral expression, discussion or negotiation with respect to such Transaction by any or either of the Representatives of the Parties except, in\nthe case of this Agreement, for the matters specifically agreed to herein.\n2\n6.\nThe Parties hereby agree that money damages may not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of\nany breach of the provisions of this Agreement, the breaching party agrees that the non-breaching party may be entitled to equitable relief,\nincluding injunction and specific performance. Such remedy may not be deemed to be the exclusive remedy for the breach of this Agreement\nbut may be in addition to all other remedies available at law or equity to the non-breaching party. In the event that the non-breaching party\nsuccessfully enforces the obligations of the breaching party hereunder, the breaching party shall reimburse the non-breaching party for all\nreasonable costs and expenses, including legal counsel, incurred by the non-breaching party in this regard.\n7.\nDisclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and receiving Party agrees that\ndisclosing Party and its employees and agents shall have no liability to receiving Party resulting from any use of the Information.\n8.\nCOMPANY agrees that, for a period of eighteen (18) months from the date of this Agreement, unless COMPANY shall have been specifically\ninvited in writing by COMSYS, neither COMPANY nor its Representatives as advisor to COMPANY as principal will in any manner, directly\nor indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any\nother person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities\n(or beneficial ownership thereof) or assets of COMSYS or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business\ncombination involving COMSYS or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other\nextraordinary transaction with respect to COMSYS or any of its subsidiaries, or (iv) any "solicitation" of "proxies" (as such terms are used in\nthe proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in\nany way participate in a "group" (as defined in the Securities Act of 1934) with respect to the securities of COMSYS; (c) otherwise act, alone\nor in concert with others, to seek to control or influence management or the board of directors or policies of COMSYS; (d) take any action\nwhich might force COMSYS to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any\ndiscussions or arrangements with any third party with respect to any of the foregoing; provided, however, that if COMSYS makes a public\nannouncement that it has entered into a definitive agreement that contemplates a business combination transaction between COMSYS and a\nthird\nparty\nthat would result in a change of control of COMSYS, or in the event any third party has made a tender offer for a majority of\nthe\nthen outstanding securities of COMSYS entitled to be voted generally in the election of directors, then COMPANY may make a proposal\nto\nthe board of directors of COMSYS with respect to a business combination transaction involving COMPANY and COMSYS.\n9.\nThe Parties hereby acknowledge that in the event that any provision or portion of this letter agreement is determined to be invalid, illegal or\nunenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain\nin\nfull force and effect to the fullest extent permitted by applicable law.\n3\nThe Parties further acknowledge that such invalid, illegal or unenforceable provision shall be substituted with a provision as similar in intent\nand economic effect to such provision as may be possible and yet be valid, legal and enforceable.\n10. The Parties hereby acknowledge that neither the failure nor delay by any party in exercising any right, power or privilege existing in\nconnection with this Agreement shall operate or be construed to be a waiver of such right, power or privilege. No single or partial exercise\nthereof will preclude any other or further exercise thereof or the exercise of any other right hereunder or otherwise legally available.\nNo\nwaiver\nhereunder shall be considered valid or enforceable, except by a written agreement signed by the Parties and no such waiver shall be deemed\na\nwaiver of any subsequent instance or circumstance of the same or similar nature.\n11. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any and all other agreements, if\nany, between the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with\nrespect thereto. This Agreement contains the entire understanding between the Parties and supersedes all prior collateral communications, if\nany, regarding the subject matter hereof. This Agreement shall govern all communications between the Parties that are made during the period\nfrom the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent\ncommunications shall not be so governed. No modification or amendment of this Agreement and no waiver of the terms and conditions hereof,\nin whole or in part, shall be binding, except by a written agreement signed by the Parties.\n12.\nThis Agreement shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and will be\nbinding upon the Parties and their respective Representatives, successors and permitted assigns.\n13.\nThe validity, interpretation, performance and enforcement of this Agreement, its construction and the rights, remedies and obligations arising\nby, under, through or on account of it, shall be governed and construed in accordance with the laws of the State of New York, regardless of the\nlaws that might otherwise govern under applicable principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally\nconsent to the sole and exclusive venue and jurisdiction of the courts of the State of New York for any action, suit or proceeding arising out of\nor relating to this Agreement and hereby agree not to commence any action, suit or proceeding related thereto except in such courts.\n14.\nExcept as otherwise provided in paragraph 8 above, this Agreement and all obligations of the parties hereunder, notwithstanding anything to\nthe contrary that may be contained herein, shall terminate one (1) year from the date of this Agreement.\n4\nManpower Inc.,\nComsys IT Partners, Inc.,\na Wisconsin corporation\na Delaware corporation\nBy: /s/ Michael J. Lynch\nBy: /s/ David L. Kerr\nName: Michael J. Lynch\nName: David L. Kerr\nVice President, General Counsel International\nSenior Vice President\nTitle\nTitle\nNovember 19, 2009\n11/19/09\nDate\nDate\n5	EX-10.2 7 dex102.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.2\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nIn connection with a possible business transaction (the “Transaction”) involving Manpower Inc. (“COMPANY”) and Comsys IT Partners, Inc.\n(“COMSYS”), collectively the “Parties,” certain information may be requested by both COMPANY and COMSYS relating to the other party or the\nTransaction and the Parties have agreed to enter into this Agreement. All such information (whether written or oral) furnished (whether before, on or\nafter the date hereof) by either company, or its directors, officers, employees, representatives (including, without limitation, financial advisors,\nfinancing sources, attorneys, consultants and accountants) or agents (collectively, “Representatives”) to the other party and all analyses,\ncompilations, forecasts, studies or other documents prepared by the Parties or their Representatives in connection with their review of, or their\ninterest in, the Transaction which contain, reflect, are generated from or are based upon, in whole or in part, any such information is hereinafter\nreferred to as the “Information.” The term Information will not, however, include information which (i) is or becomes generally available to the\npublic other than as a result of a disclosure by the receiving Party or its Representatives that is prohibited by this Agreement; (ii) is or becomes\navailable to the receiving Party on a nonconfidential basis from a source which, to the best of its knowledge, is not known to be prohibited from\ndisclosing such information to the receiving Party by a legal, contractual or fiduciary obligation to either Party; (iii) was in possession of the\nreceiving Party prior to the disclosure of the information pursuant to this Agreement, provided that the source of such information was not known by\nthe receiving Party, after due inquiry, to be subject to an obligation not to disclose such information; or (iv) is independently developed without\nreference to or use of the Information.\nAccordingly, the Parties hereby agree that:\n1. The Parties and their Representatives (i) will keep the Information strictly confidential and will not (except as required by applicable law,\nregulation or legal process, and only after compliance with paragraph 2 below), without the prior written consent of the other party, disclose\nany Information in any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided,\nhowever, that the Parties may reveal the Information to their Representatives (a) who need to know the Information for the purpose of\nevaluating the Transaction, (b) who are informed by the Parties of the confidential nature of the Information and are provided with a copy of\nthis Agreement, (c) who agree not to disclose any of the Information to any other party and (d) who agree to act in accordance with the terms\nof this letter agreement to the same extent as if they were parties hereto. The Parties will cause their Representatives to observe the terms of\nthis letter agreement, and they will be responsible for any breach of this agreement by any of their Representatives.\n2. In the event that the Parties or any of their Representatives are requested pursuant to, or required by, applicable law, regulation, rules of any\nnational stock exchange, or legal process to disclose any of the Information, the Parties must notify each other promptly so that they may seek\na protective order or other appropriate remedy or, in the sole discretion of the party that initially furnished such Information, waive compliance\nwith the terms of this letter agreement. In the event that no such protective order or other remedy is\nobtained, or that the Parties waive compliance with the terms of this letter agreement, the Parties will furnish only that portion of the\nInformation which they are advised by counsel is legally required and will exercise all commercially reasonable efforts to obtain reliable\nassurance that confidential treatment will be accorded the Information.\n3. If COMPANY or COMSYS determines not to proceed with the Transaction, they will promptly inform the other Party of that decision and, in\nthat case, and at any time upon request of COMPANY or COMSYS or any of their Representatives, the other party will either (i) promptly\ndestroy all copies of the written Information in its or its Representatives’ possession and confirm such destruction to the initiating company in\nwriting or (ii) promptly deliver to the initiator of such action all copies of the written Information in its or its Representatives’ possession. Any\noral Information will continue to be subject to the terms of this letter agreement. Notwithstanding anything contained in the foregoing to the\ncontrary, either Party may retain in the files of its legal counsel such documents and records as are required to be maintained in order to satisfy\nany law, rule, or regulation to which the Party is subject or for the purpose of determining its continuing obligations under this Agreement,\nincluding any rule of any national stock exchange. Furthermore, if a legal proceeding has been instituted to seek disclosure of the Information,\nsuch material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered.\n4. Neither Party hereto shall in any way or in any form disclose, publicize or advertise in any manner the discussions that give rise to this\nAgreement or the discussions or negotiations covered by this Agreement, including the fact that any such discussions have taken or are taking\nplace, or any proposal relating thereto, including the terms and conditions thereof, without the prior written consent of the other Party.\nNotwithstanding any term or implication herein to the contrary, either Party may disclose Information and any of the information described in\nthe preceding paragraph to the extent such Party determines in good faith upon advice of counsel that such disclosure is required in connection\nwith such Party’s disclosure responsibilities under the securities laws (including regulations, rules and interpretations promulgated or issued by\na regulatory body), so long as such Party gives the other party such prior notice of such disclosure, and such opportunity to review, comment\non, and lawfully limit the proposed disclosure, as is reasonably available under the circumstances.\n5. The Parties hereby acknowledge that, unless and until a definitive agreement between COMPANY and COMSYS with respect to any\nTransaction has been executed and delivered, neither the COMPANY nor COMSYS will be under any legal obligation of any kind whatsoever\nwith respect to such Transaction and hereby waive, in advance, any claims (including, without limitation, breach of contract) in connection\nwith any Transaction. In addition, neither Party will be under any obligation to negotiate a definitive agreement, by virtue of this or any written\nor oral expression, discussion or negotiation with respect to such Transaction by any or either of the Representatives of the Parties except, in\nthe case of this Agreement, for the matters specifically agreed to herein.\n2\n6. The Parties hereby agree that money damages may not be a sufficient remedy for any breach of this Agreement. Accordingly, in the event of\nany breach of the provisions of this Agreement, the breaching party agrees that the non-breaching party may be entitled to equitable relief,\nincluding injunction and specific performance. Such remedy may not be deemed to be the exclusive remedy for the breach of this Agreement\nbut may be in addition to all other remedies available at law or equity to the non-breaching party. In the event that the non-breaching party\nsuccessfully enforces the obligations of the breaching party hereunder, the breaching party shall reimburse the non-breaching party for all\nreasonable costs and expenses, including legal counsel, incurred by the non-breaching party in this regard.\n7. Disclosing Party makes no representation or warranty as to the accuracy or completeness of the Information and receiving Party agrees that\ndisclosing Party and its employees and agents shall have no liability to receiving Party resulting from any use of the Information.\n8. COMPANY agrees that, for a period of eighteen (18) months from the date of this Agreement, unless COMPANY shall have been specifically\ninvited in writing by COMSYS, neither COMPANY nor its Representatives as advisor to COMPANY as principal will in any manner, directly\nor indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any\nother person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities\n(or beneficial ownership thereof) or assets of COMSYS or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business\ncombination involving COMSYS or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other\nextraordinary transaction with respect to COMSYS or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in\nthe proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the other Party; (b) form, join or in\nany way participate in a “group” (as defined in the Securities Act of 1934) with respect to the securities of COMSYS; (c) otherwise act, alone\nor in concert with others, to seek to control or influence management or the board of directors or policies of COMSYS; (d) take any action\nwhich might force COMSYS to make a public announcement regarding any of the types of matters set forth in (a) above; or (e) enter into any\ndiscussions or arrangements with any third party with respect to any of the foregoing; provided, however, that if COMSYS makes a public\nannouncement that it has entered into a definitive agreement that contemplates a business combination transaction between COMSYS and a\nthird party that would result in a change of control of COMSYS, or in the event any third party has made a tender offer for a majority of the\nthen outstanding securities of COMSYS entitled to be voted generally in the election of directors, then COMPANY may make a proposal to\nthe board of directors of COMSYS with respect to a business combination transaction involving COMPANY and COMSYS.\n9. The Parties hereby acknowledge that in the event that any provision or portion of this letter agreement is determined to be invalid, illegal or\nunenforceable for any reason, in whole or in part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in\nfull force and effect to the fullest extent permitted by applicable law.\n3\nThe Parties further acknowledge that such invalid, illegal or unenforceable provision shall be substituted with a provision as similar in intent\nand economic effect to such provision as may be possible and yet be valid, legal and enforceable.\n10. The Parties hereby acknowledge that neither the failure nor delay by any party in exercising any right, power or privilege existing in\nconnection with this Agreement shall operate or be construed to be a waiver of such right, power or privilege. No single or partial exercise\nthereof will preclude any other or further exercise thereof or the exercise of any other right hereunder or otherwise legally available. No waiver\nhereunder shall be considered valid or enforceable, except by a written agreement signed by the Parties and no such waiver shall be deemed a\nwaiver of any subsequent instance or circumstance of the same or similar nature.\n11. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any and all other agreements, if\nany, between the Parties with respect to the subject matter hereof and contains all of the covenants and agreements between the Parties with\nrespect thereto. This Agreement contains the entire understanding between the Parties and supersedes all prior collateral communications, if\nany, regarding the subject matter hereof. This Agreement shall govern all communications between the Parties that are made during the period\nfrom the effective date of this Agreement to the date on which either party receives from the other written notice that subsequent\ncommunications shall not be so governed. No modification or amendment of this Agreement and no waiver of the terms and conditions hereof,\nin whole or in part, shall be binding, except by a written agreement signed by the Parties.\n12. This Agreement shall inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns and will be\nbinding upon the Parties and their respective Representatives, successors and permitted assigns.\n13. The validity, interpretation, performance and enforcement of this Agreement, its construction and the rights, remedies and obligations arising\nby, under, through or on account of it, shall be governed and construed in accordance with the laws of the State of New York, regardless of the\nlaws that might otherwise govern under applicable principles of conflicts of law thereof. The Parties hereby irrevocably and unconditionally\nconsent to the sole and exclusive venue and jurisdiction of the courts of the State of New York for any action, suit or proceeding arising out of\nor relating to this Agreement and hereby agree not to commence any action, suit or proceeding related thereto except in such courts.\n14. Except as otherwise provided in paragraph 8 above, this Agreement and all obligations of the parties hereunder, notwithstanding anything to\nthe contrary that may be contained herein, shall terminate one (1) year from the date of this Agreement.\n4\nManpower Inc.,\na Wisconsin corporation\nComsys IT Partners, Inc.,\na Delaware corporation\nBy: /s/ Michael J. Lynch\nBy: /s/ David L. Kerr\nName: Michael J. Lynch\nName: David L. Kerr\nVice President, General Counsel International\nSenior Vice President\nTitle\nTitle\nNovember 19, 2009\n11/19/09\nDate\nDate\n5
+2bf3498214fb0e9a3e83622600210881.pdf	effective_date jurisdiction party term	EXHIBIT 5\nNON-DISCLOSURE FORM\nMICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (the “Agreement”) is made and entered into as of the later of the two signature dates below.\nCOMPANY: ELECTRONIC ARTS\nMICROSOFT CORPORATION\nAddress: 1900-250 Howe Street\nVancouver,\nV6C 3R8\nOne Microsoft Way\nRedmond, WA 98052-6399\nSign: /s/ Paul Roberts\nSign: /s/ Sue Grinius-Hill\nPrint Name: Paul Roberts\nPrint Name: Sue Grinius-Hill\nPrint Title: Director, World Wide Studios\nPrint Title: Senior Program Manger\nSignature Date: June 17, 2005\nSignature Date: 7/15/05\n1\nDefinition of Confidential Information and Exclusions\n(a)\n“Confidential Information” means nonpublic information that a party to this Agreement (“Disclosing Party”) designates as being\nconfidential to the party that receives such information (“Receiving Party”) or which, under the circumstances surrounding disclosure ought to be\ntreated as confidential by the Receiving Party. “Confidential Information” includes, without limitation, information in tangible or intangible form\nrelating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing\nParty product, Disclosing Party’s business policies or practices, and information received from others that Disclosing Party is obligated to treat as\nconfidential. Except as otherwise indicated in this Agreement, the term “Disclosing Party” also includes all Affiliates of the Disclosing Party and,\nexcept as otherwise indicated, the term “Receiving Party” also includes all Affiliates of the Receiving Party. An “Affiliate” means any person,\npartnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or\nindirectly, control, are controlled by, or are under common control with a party. Prior to the time that any Confidential Information is shared with an\nAffiliate who has not signed this Agreement, the Receiving Party that executed this Agreement below (the “Signatory Receiving Party”) shall have\nentered into an appropriate written agreement with that Affiliate sufficient to enable the Disclosing Party and/or the Signatory Receiving Party to\nenforce all of the provisions of this Agreement against such Affiliate.\n(b) Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available\nwithout Receiving Party’s breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s\ndisclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source\nother than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed by\nReceiving Party; or (v) constitutes Feedback (as defined in Section 5 of this Agreement).\n32\nMICROSOFT CONFIDENTIAL\n2.\nObligations Regarding Confidential Information\n(a) Receiving Party shall:\n(i) Refrain from disclosing any Confidential Information of the Disclosing Party to third parties for five (5) years following the\ndate that Disclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in\nSections 2(b) and 2(c) of this Agreement;\n(ii) Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information,\nbut no less than reasonable care, to keep confidential the Confidential Information of the Disclosing Party;\n(iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except\nin pursuance of Receiving Party’s business relationship with Disclosing Party, and only as otherwise provided hereunder;\nand\n(iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices\ndisclosed by Disclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by\napplicable law.\n(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order,\nprovided that Receiving Party either (i) gives the undersigned Disclosing Party reasonable noticeprior to such disclosure to allow Disclosing Party\na reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance from the applicable judicial or governmental\nentity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation. Notwithstanding the\nforegoing, the Receiving Party shall not disclose any computer source code that contains Confidential Information of the Disclosing Party in\naccordance with a judicial or other governmental order unless it complies with the requirement set forth in sub-section (i) of this Section 2(b).\n(c) The Signatory Receiving Party may disclose Confidential Information only to Receiving Party’s employees and consultants on a need-to-\nknow basis. The Receiving Party will have executed or shall execute appropriate written agreements with its employees and consultants sufficient\nto enable Receiving Party to enforce all the provisions of this Agreement.\n(d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with\nDisclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n(e) Receiving Party shall, at Disclosing Party’s request, return all originals, copies, reproductions and summaries of Confidential Information\nand all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party’s option, certify\ndestruction of the same.\n3. Remedies. The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential\nInformation and that Disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be\ndeemed proper by a court of competent jurisdiction.\n4. Miscellaneous\n(a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving\nParty, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade\nsecret information except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such\npatents, copyrights, trademarks, or trade secrets except as otherwise provided herein.\n(b) In the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential\nInformation under the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation\nand providing Feedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and\nthe Receiving Party, all such computer software and/or hardware is provided “AS IS” without warranty of any kind, and Receiving Party agrees that\nneither Disclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party’s use of or inability\nto use such software and/or hardware.\n(c) The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii) any\nproduct (or any part thereof), process or service that is the direct product of the Confidential Information, including the\n33\nMICROSOFT CONFIDENTIAL\nU.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For\nadditional information on exporting Microsoft products, see http://www.microsoft.com/exporting/.\n(d) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party’s\nright to independently develop or acquire products without use of the other party’s Confidential Information. Further, the Receiving Party shall be\nfree to use for any purpose the residuals resulting from access to or work with the Confidential Information of the Disclosing Party, provided that\nthe Receiving Party shall not disclose the Confidential Information except as expressly permitted pursuant to the terms of this Agreement. The\nterm “residuals” means information in intangible form, which is retained in memory by persons who have had access to the Confidential\nInformation, including ideas, concepts, know-how or techniques contained therein. The Receiving Party shall not have any obligation to limit or\nrestrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals. However, this sub-paragraph shall not\nbe deemed to grant to the Receiving Party a license under the Disclosing Party’s copyrights or patents.\n(e) None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of Disclosing\nParty, the Receiving Party, their agents, or employees, but only by an instrument in writing signed by an authorized employee of Disclosing Party\nand the Receiving Party. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision\non another occasion.\n(f) If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the\nprevailing party shall be entitled to recover reasonable attorneys’ fees and costs. This Agreement shall be construed and controlled by the laws of\nthe State of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County,\nWashington, unless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the\nSuperior Court of King County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may\nbe served on either party in the manner authorized by applicable law or court rule.\n(g) This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns; provided,\nhowever, that neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole or\nin part, without the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.\n(h)\nIf any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the\nremaining provisions shall remain in full force and effect.\n(i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party sent to the\naddress listed above (and if to Microsoft, with a cc to “Law & Corporate Affairs, attn.. NDA, LCA Records. All sections of this Agreement shall\nsurvive any such termination.\n(k) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified\nexcept by written agreement dated subsequent to the date of this Agreement and signed on behalf of the parties by their respective duly\nauthorized representatives.\n5. Suggestions and Feedback. The Receiving Party may from time to time provide suggestions, comments or other feedback (“Feedback”) to\nthe Disclosing Party with respect to Confidential Information provided originally by the Disclosing Party. Both parties agree that all Feedback is and\nshall be given entirely voluntarily. Feedback, even if designated as confidential by the party offering the Feedback, shall not, absent a separate\nwritten agreement, create any confidentiality obligation for the receiver of the Feedback. Receiving Party will not give Feedback that is subject to\nlicense terms that seek to require any Disclosing Party product, technology, service or documentation incorporating or derived from such\nFeedback, or any Disclosing Party intellectual property, to be licensed or otherwise shared with any third party. Furthermore, except as otherwise\nprovided herein or in a separate subsequent written agreement between the parties, the receiver of the Feedback shall be free to use, disclose,\nreproduce, license or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind\non account of intellectual property rights or otherwise.\n34\nMICROSOFT CONFIDENTIAL	EXHIBIT 5\nNON-DISCLOSURE FORM\nMICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (the “Agreement”) is made and entered into as of the later of the two signature dates below.\nCOMPANY: ELECTRONIC ARTS MICROSOFT CORPORATION\nAddress: 1900-250 Howe Street One Microsoft Way\nVancouver, Redmond, WA 98052-6399\nV6C 3R8\nSign: /s/ Paul Roberts Sign: /s/ Sue Grinius-Hill\nPrint Name: Paul Roberts Print Name: Sue Grinius-Hill\nPrint Title: Director, World Wide Studios Print Title: Senior Program Manger\n \nSignature Date: June 17, 2005 Signature Date: 7/15/05\n1 Definition of Confidential Information and Exclusions\n(@ “Confidential Information” means nonpublic information that a party to this Agreement (“Disclosing Party”) designates as being\nconfidential to the party that receives such information (“Receiving Party”) or which, under the circumstances surrounding disclosure ought to be\ntreated as confidential by the Receiving Party. “Confidential Information” includes, without limitation, information in tangible or intangible form\nrelating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing\nParty product, Disclosing Party’s business policies or practices, and information received from others that Disclosing Party is obligated to treat as\nconfidential. Except as otherwise indicated in this Agreement, the term “Disclosing Party” also includes all Affiliates of the Disclosing Party and,\nexcept as otherwise indicated, the term “Receiving Party” also includes all Affiliates of the Receiving Party. An “Affiliate” means any person,\npartnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or\nindirectly, control, are controlled by, or are under common control with a party. Prior to the time that any Confidential Information is shared with an\nAffiliate who has not signed this Agreement, the Receiving Party that executed this Agreement below (the “Signhatory Receiving Party”) shall have\nentered into an appropriate written agreement with that Affiliate sufficient to enable the Disclosing Party and/or the Signatory Receiving Party to\nenforce all of the provisions of this Agreement against such Affiliate.\n(b) Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available\nwithout Receiving Party’s breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s\ndisclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source\nother than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed by\nReceiving Party; or (v) constitutes Feedback (as defined in Section 5 of this Agreement).\n32 MICROSOFT CONFIDENTIAL\n2. Obligations Regarding_Confidential Information\n(a) Receiving Party shall:\n() Refrain from disclosing any Confidential Information of the Disclosing Party to third parties for five (5) years following the\ndate that Disclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in\nSections 2(b) and 2(c) of this Agreement;\n(i) Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information,\nbut no less than reasonable care, to keep confidential the Confidential Information of the Disclosing Party;\n(i) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except\nin pursuance of Receiving Party’s business relationship with Disclosing Party, and only as otherwise provided hereunder;\nand\n(iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices\ndisclosed by Disclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by\napplicable law.\n(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order,\nprovided that Receiving Party either (i) gives the undersigned Disclosing Party reasonable noticeprior to such disclosure to allow Disclosing Party\na reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance from the applicable judicial or governmental\nentity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation. Notwithstanding the\nforegoing, the Receiving Party shall not disclose any computer source code that contains Confidential Information of the Disclosing Party in\naccordance with a judicial or other governmental order unless it complies with the requirement set forth in sub-section (i) of this Section 2(b).\n(c) The Signatory Receiving Party may disclose Confidential Information only to Receiving Party’s employees and consultants on a need-to-\nknow basis. The Receiving Party will have executed or shall execute appropriate written agreements with its employees and consultants sufficient\nto enable Receiving Party to enforce all the provisions of this Agreement.\n(d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with\nDisclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n(e) Receiving Party shall, at Disclosing Party’s request, return all originals, copies, reproductions and summaries of Confidential Information\nand all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party’s option, certify\ndestruction of the same.\n3. Remedies. The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential\nInformation and that Disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be\ndeemed proper by a court of competent jurisdiction.\n4. Miscellaneous\n(@)  All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving\nParty, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade\nsecret information except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such\npatents, copyrights, trademarks, or trade secrets except as otherwise provided herein.\n(b) In the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential\nInformation under the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation\nand providing Feedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and\nthe Receiving Party, all such computer software and/or hardware is provided “AS IS” without warranty of any kind, and Receiving Party agrees that\nneither Disclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party’s use of or inability\nto use such software and/or hardware.\n(c) The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii) any\nproduct (or any part thereof), process or service that is the direct product of the Confidential Information, including the\n33 MICROSOFT CONFIDENTIAL\nU.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For\nadditional information on exporting Microsoft products, see http://www.microsoft.com/exporting/.\n(d)  The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party’s\nright to independently develop or acquire products without use of the other party’s Confidential Information. Further, the Receiving Party shall be\nfree to use for any purpose the residuals resulting from access to or work with the Confidential Information of the Disclosing Party, provided that\nthe Receiving Party shall not disclose the Confidential Information except as expressly permitted pursuant to the terms of this Agreement. The\nterm “residuals” means information in intangible form, which is retained in memory by persons who have had access to the Confidential\nInformation, including ideas, concepts, know-how or techniques contained therein. The Receiving Party shall not have any obligation to limit or\nrestrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals. However, this sub-paragraph shall not\nbe deemed to grant to the Receiving Party a license under the Disclosing Party’s copyrights or patents.\n(e) None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of Disclosing\nParty, the Receiving Party, their agents, or employees, but only by an instrument in writing signed by an authorized employee of Disclosing Party\nand the Receiving Party. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision\non another occasion.\n(f)  If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the\nprevailing party shall be entitled to recover reasonable attorneys’ fees and costs. This Agreement shall be construed and controlled by the laws of\nthe State of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County,\nWashington, unless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the\nSuperior Court of King County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may\nbe served on either party in the manner authorized by applicable law or court rule.\n(9) This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns; provided,\nhowever, that neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole or\nin part, without the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.\n(h) If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the\nremaining provisions shall remain in full force and effect.\n(i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party sent to the\naddress listed above (and if to Microsoft, with a cc to “Law & Corporate Affairs, attn.. NDA, LCA Records. All sections of this Agreement shall\nsurvive any such termination.\n(k) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified\nexcept by written agreement dated subsequent to the date of this Agreement and signed on behalf of the parties by their respective duly\nauthorized representatives.\n5. Suggestions and Feedback. The Receiving Party may from time to time provide suggestions, comments or other feedback (“Feedback”) to\nthe Disclosing Party with respect to Confidential Information provided originally by the Disclosing Party. Both parties agree that all Feedback is and\nshall be given entirely voluntarily. Feedback, even if designated as confidential by the party offering the Feedback, shall not, absent a separate\nwritten agreement, create any confidentiality obligation for the receiver of the Feedback. Receiving Party will not give Feedback that is subject to\nlicense terms that seek to require any Disclosing Party product, technology, service or documentation incorporating or derived from such\nFeedback, or any Disclosing Party intellectual property, to be licensed or otherwise shared with any third party. Furthermore, except as otherwise\nprovided herein or in a separate subsequent written agreement between the parties, the receiver of the Feedback shall be free to use, disclose,\nreproduce, license or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind\non account of intellectual property rights or otherwise.\n34 MICROSOFT CONFIDENTIAL	EXHIBIT 5\nNON-DISCLOSURE FORM\nMICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (the "Agreement") is made and entered into as of the later of the two signature dates below.\nCOMPANY: ELECTRONIC ARTS\nMICROSOFT CORPORATION\nAddress: 1900-250 Howe Street\nOne Microsoft Way\nVancouver,\nRedmond, WA 98052-6399\nV6C 3R8\nSign: /s/ Paul Roberts\nSign: Is/ Sue Grinius-Hill\nPrint Name: Paul Roberts\nPrint Name: Sue Grinius-Hill\nPrint Title: Director, World Wide Studios\nPrint Title: Senior Program Manger\nSignature Date: June 17, 2005\nSignature Date: 7/15/05\n1\nDefinition of Confidential Information and Exclusions\n(a)\n"Confidential Information" means nonpublic information that a party to this Agreement ("Disclosing Party") designates as being\nconfidential to the party that receives such information ("Receiving Party") or which, under the circumstances surrounding disclosure ought to be\ntreated as confidential by the Receiving Party. "Confidential Information" includes, without limitation, information in tangible or intangible form\nrelating\nto\nand/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing\nParty product, Disclosing Party's business policies or practices, and information received from others that Disclosing Party is obligated to treat as\nconfidential. Except as otherwise indicated in this Agreement, the term "Disclosing Party" also includes all Affiliates of the Disclosing Party and,\nexcept as otherwise indicated, the term "Receiving Party" also includes all Affiliates of the Receiving Party. An "Affiliate" means any person\npartnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or\nindirectly, control, are controlled by, or are under common control with a party. Prior to the time that any Confidential Information is shared with an\nAffiliate who has not signed this Agreement, the Receiving Party that executed this Agreement below (the "Signatory Receiving Party") shall have\nentered into an appropriate written agreement with that Affiliate sufficient to enable the Disclosing Party and/or the Signatory Receiving Party\nto\nenforce all of the provisions of this Agreement against such Affiliate.\n(b) Confidential Information shal not include any information, however designated, that: (i) is or subsequently becomes publicly available\nwithout Receiving Party's breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party's\ndisclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source\nother than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed\nby\nReceiving Party; or (v) constitutes Feedback (as defined in Section 5 of this Agreement).\n32\nMICROSOFT CONFIDENTIAL\n2.\nObligations Regarding. rding. Confidentia Information\n(a) Receiving Party shall:\n(i)\nRefrain from disclosing any Confidentia Information of the Disclosing Party to third parties for five (5) years following the\ndate that Disclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in\nSections 2(b) and 2(c) of this Agreement;\n(ii)\nTake reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information,\nbut no less than reasonable care, to keep confidentia the Confidential Information of the Disclosing Party;\n(iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except\nin pursuance of Receiving Party's business relationship with Disclosing Party, and only as otherwise provided hereunder;\nand\n(iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices\ndisclosed by Disclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by\napplicable law.\n(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order,\nprovided\nthat\nReceiving\nParty\neither\n(i)\ngives\nthe\nundersigned\nDisclosing\nParty\nreasonable\nnoticeprior\nto\nsuch\ndisclosure\nto\nallow\nDisclosing\nParty\na reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance from the applicable judicia or governmental\nentity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation. Notwithstanding the\nforegoing, the Receiving Party shal not disclose any computer source code that contains Confidential Information of the Disclosing Party in\naccordance with a judicial or other governmental order unless it complies with the requirement set forth in sub-section (i) of this Section 2(b).\n(c) The Signatory Receiving Party may disclose Confidential Information only to Receiving Party's employees and consultants on a need-to-\nknow basis. The Receiving Party will have executed or shall execute appropriate written agreements with its employees and consultants sufficient\nto enable Receiving Party to enforce all the provisions of this Agreement.\n(d)\nReceiving\nParty\nshall\nnotify\nthe\nundersigned\nDisclosing\nParty\nimmediately\nupon\ndiscovery\nof\nany\nunauthorized\nuse\nor\ndisclosure\nof\nConfidential Information or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with\nDisclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n(e) Receiving Party shall, at Disclosing Party's request, return all originals, copies, reproductions and summaries of Confidential Information\nand\nall other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party's option, certify\ndestruction of the same.\n3. Remedies. The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential\nInformation and that Disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be\ndeemed proper by a court of competent jurisdiction.\n4. Miscellaneous\n(a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving\nParty,\nDisclosing\nParty\ndoes\nnot\ngrant\nany\nexpress\nor\nimplied\nright\nto\nReceiving\nParty\nto\nor\nunder\nany\npatents,\ncopyrights,\ntrademarks\nor\ntrade\nsecret information except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such\npatents, copyrights, trademarks, or trade secrets except as otherwise provided herein.\n(b) In the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential\nInformation under the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation\nand providing Feedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and\nthe\nReceiving Party, all such computer software and/or hardware is provided "AS IS" without warranty of any kind, and Receiving Party agrees that\nneither Disclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party's use of or inability\nto use such software and/or hardware.\n(c)\nThe parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii) any\nproduct (or any part thereof), process or service that is the direct product of the Confidential Information, including the\n33\nMICROSOFT CONFIDENTIAL\nU.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For\nadditional information on exporting Microsoft products, see http:l/www.microsoft.com/exportingl\n(d) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party's\nright to independently develop or acquire products without use of the other party's Confidential Information. Further, the Receiving Party shall be\nfree to use for any purpose the residuals resulting from access to or work with the Confidential Information of the Disclosing Party, provided that\nthe\nReceiving Party shall not disclose the Confidential Information except as expressly permitted pursuant to the terms of this Agreement. The\nterm "residuals" means information in intangible form, which is retained in memory by persons who have had access to the Confidential\nInformation, including ideas, concepts, know-how or techniques contained therein. The Receiving Party shall not have any obligation to limit or\nrestrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals. However, this sub-paragraph shall not\nbe deemed to grant to the Receiving Party a license under the Disclosing Party's copyrights or patents.\n(e) None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of Disclosing\nParty, the Receiving Party, their agents, or employees, but only by an instrument in writing signed by an authorized employee of Disclosing Party\nand the Receiving Party. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision\non another occasion.\n(f) If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the\nprevailing party shall be entitled to recover reasonable attorneys' fees and costs. This Agreement shall be construed and controlled by the laws of\nthe State of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County,\nWashington,\nunless\nno\nfederal\nsubject\nmatter\njurisdiction\nexists,\nin\nwhich\ncase\nthe\nparties\nconsent\nto\nthe\nexclusive\njurisdiction\nand\nvenue\nin\nthe\nSuperior Court of King County, Washington. Company waives all defenses of lack of persona jurisdiction and forum non conveniens. Process may\nbe served on either party in the manner authorized by applicable law or court rule.\n(g) This Agreement shall be binding upon and inure to the benefit of each party's respective successors and lawful assigns; provided,\nhowever, that neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole or\nin part, without the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.\n(h)\nIf any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the\nremaining provisions shall remain in full force and effect.\n(i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party sent to the\naddress listed above (and if to Microsoft, with a cc to "Law & Corporate Affairs, attn.. NDA, LCA Records. All sections of this Agreement shall\nsurvive any such termination.\n(k)\nThis Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified\nexcept by written agreement dated subsequent to the date of this Agreement and signed on behalf of the parties by their respective duly\nauthorized representatives.\n5.\nSuggestions and Feedback. The Receiving Party may from time to time provide suggestions, comments or other feedback ("Feedback") to\nthe Disclosing Party with respect to Confidential Information provided originally by the Disclosing Party. Both parties agree that all Feedback is and\nshall be given entirely voluntarily. Feedback, even if designated as confidential by the party offering the Feedback, shall not, absent a separate\nwritten agreement, create any confidentiality obligation for the receiver of the Feedback. Receiving Party will not give Feedback that is subject to\nlicense terms that seek to require any Disclosing Party product, technology, service or documentation incorporating or derived from such\nFeedback, or any Disclosing Party intellectual property, to be licensed or otherwise shared with any third party. Furthermore, except as otherwise\nprovided herein or in a separate subsequent written agreement between the parties, the receiver of the Feedback shall be free to use, disclose,\nreproduce, license or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any\nkind\non account of intellectual property rights or otherwise.\n34\nMICROSOFT CONFIDENTIAL	EXHIBIT 5\nNON-DISCLOSURE FORM\nMICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (the “Agreement”) is made and entered into as of the later of the two signature dates below.\nCOMPANY: ELECTRONIC ARTS\nMICROSOFT CORPORATION\nAddress: 1900-250 Howe Street\nVancouver,\nV6C 3R8\nOne Microsoft Way\nRedmond, WA 98052-6399\nSign: /s/ Paul Roberts\nSign: /s/ Sue Grinius-Hill\nPrint Name: Paul Roberts\nPrint Name: Sue Grinius-Hill\nPrint Title: Director, World Wide Studios\nPrint Title: Senior Program Manger\nSignature Date: June 17, 2005\nSignature Date: 7/15/05\n1\nDefinition of Confidential Information and Exclusions\n(a)\n“Confidential Information” means nonpublic information that a party to this Agreement (“Disclosing Party”) designates as being\nconfidential to the party that receives such information (“Receiving Party”) or which, under the circumstances surrounding disclosure ought to be\ntreated as confidential by the Receiving Party. “Confidential Information” includes, without limitation, information in tangible or intangible form\nrelating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing\nParty product, Disclosing Party’s business policies or practices, and information received from others that Disclosing Party is obligated to treat as\nconfidential. Except as otherwise indicated in this Agreement, the term “Disclosing Party” also includes all Affiliates of the Disclosing Party and,\nexcept as otherwise indicated, the term “Receiving Party” also includes all Affiliates of the Receiving Party. An “Affiliate” means any person,\npartnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or\nindirectly, control, are controlled by, or are under common control with a party. Prior to the time that any Confidential Information is shared with an\nAffiliate who has not signed this Agreement, the Receiving Party that executed this Agreement below (the “Signatory Receiving Party”) shall have\nentered into an appropriate written agreement with that Affiliate sufficient to enable the Disclosing Party and/or the Signatory Receiving Party to\nenforce all of the provisions of this Agreement against such Affiliate.\n(b) Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available\nwithout Receiving Party’s breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s\ndisclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source\nother than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed by\nReceiving Party; or (v) constitutes Feedback (as defined in Section 5 of this Agreement).\n32\nMICROSOFT CONFIDENTIAL\n2.\nObligations Regarding Confidential Information\n(a) Receiving Party shall:\n(i) Refrain from disclosing any Confidential Information of the Disclosing Party to third parties for five (5) years following the\ndate that Disclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in\nSections 2(b) and 2(c) of this Agreement;\n(ii) Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information,\nbut no less than reasonable care, to keep confidential the Confidential Information of the Disclosing Party;\n(iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except\nin pursuance of Receiving Party’s business relationship with Disclosing Party, and only as otherwise provided hereunder;\nand\n(iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices\ndisclosed by Disclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by\napplicable law.\n(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order,\nprovided that Receiving Party either (i) gives the undersigned Disclosing Party reasonable noticeprior to such disclosure to allow Disclosing Party\na reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance from the applicable judicial or governmental\nentity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation. Notwithstanding the\nforegoing, the Receiving Party shall not disclose any computer source code that contains Confidential Information of the Disclosing Party in\naccordance with a judicial or other governmental order unless it complies with the requirement set forth in sub-section (i) of this Section 2(b).\n(c) The Signatory Receiving Party may disclose Confidential Information only to Receiving Party’s employees and consultants on a need-to-\nknow basis. The Receiving Party will have executed or shall execute appropriate written agreements with its employees and consultants sufficient\nto enable Receiving Party to enforce all the provisions of this Agreement.\n(d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with\nDisclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n(e) Receiving Party shall, at Disclosing Party’s request, return all originals, copies, reproductions and summaries of Confidential Information\nand all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party’s option, certify\ndestruction of the same.\n3. Remedies. The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential\nInformation and that Disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be\ndeemed proper by a court of competent jurisdiction.\n4. Miscellaneous\n(a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving\nParty, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade\nsecret information except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such\npatents, copyrights, trademarks, or trade secrets except as otherwise provided herein.\n(b) In the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential\nInformation under the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation\nand providing Feedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and\nthe Receiving Party, all such computer software and/or hardware is provided “AS IS” without warranty of any kind, and Receiving Party agrees that\nneither Disclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party’s use of or inability\nto use such software and/or hardware.\n(c) The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii) any\nproduct (or any part thereof), process or service that is the direct product of the Confidential Information, including the\n33\nMICROSOFT CONFIDENTIAL\nU.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For\nadditional information on exporting Microsoft products, see http://www.microsoft.com/exporting/.\n(d) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party’s\nright to independently develop or acquire products without use of the other party’s Confidential Information. Further, the Receiving Party shall be\nfree to use for any purpose the residuals resulting from access to or work with the Confidential Information of the Disclosing Party, provided that\nthe Receiving Party shall not disclose the Confidential Information except as expressly permitted pursuant to the terms of this Agreement. The\nterm “residuals” means information in intangible form, which is retained in memory by persons who have had access to the Confidential\nInformation, including ideas, concepts, know-how or techniques contained therein. The Receiving Party shall not have any obligation to limit or\nrestrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals. However, this sub-paragraph shall not\nbe deemed to grant to the Receiving Party a license under the Disclosing Party’s copyrights or patents.\n(e) None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of Disclosing\nParty, the Receiving Party, their agents, or employees, but only by an instrument in writing signed by an authorized employee of Disclosing Party\nand the Receiving Party. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision\non another occasion.\n(f) If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the\nprevailing party shall be entitled to recover reasonable attorneys’ fees and costs. This Agreement shall be construed and controlled by the laws of\nthe State of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County,\nWashington, unless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the\nSuperior Court of King County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may\nbe served on either party in the manner authorized by applicable law or court rule.\n(g) This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns; provided,\nhowever, that neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole or\nin part, without the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.\n(h)\nIf any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the\nremaining provisions shall remain in full force and effect.\n(i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party sent to the\naddress listed above (and if to Microsoft, with a cc to “Law & Corporate Affairs, attn.. NDA, LCA Records. All sections of this Agreement shall\nsurvive any such termination.\n(k) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified\nexcept by written agreement dated subsequent to the date of this Agreement and signed on behalf of the parties by their respective duly\nauthorized representatives.\n5. Suggestions and Feedback. The Receiving Party may from time to time provide suggestions, comments or other feedback (“Feedback”) to\nthe Disclosing Party with respect to Confidential Information provided originally by the Disclosing Party. Both parties agree that all Feedback is and\nshall be given entirely voluntarily. Feedback, even if designated as confidential by the party offering the Feedback, shall not, absent a separate\nwritten agreement, create any confidentiality obligation for the receiver of the Feedback. Receiving Party will not give Feedback that is subject to\nlicense terms that seek to require any Disclosing Party product, technology, service or documentation incorporating or derived from such\nFeedback, or any Disclosing Party intellectual property, to be licensed or otherwise shared with any third party. Furthermore, except as otherwise\nprovided herein or in a separate subsequent written agreement between the parties, the receiver of the Feedback shall be free to use, disclose,\nreproduce, license or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind\non account of intellectual property rights or otherwise.\n34\nMICROSOFT CONFIDENTIAL
+3042966debef200a0d2be55ce16ee07e.pdf	effective_date jurisdiction party term	NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “Agreement”) is entered into and made effective as of the date of the last signature\nbelow (the “Effective Date”), by and between Santander Consumer USA Inc. (“SC”) on behalf of the corporation, its operating\ndivisions, parent company, and its majority-owned subsidiaries, and (insert candidate name) (the “Associate”).\nRECITALS\nA.\nIn the course of Associate’s employment with SC, Associate may have access to certain non-public proprietary\ninformation regarding, among others, SC, its Affiliates, their respective businesses, operations, personnel, finances or customers\n(collectively, “Confidential Information”, as further defined below), that Associate shall protect, such Confidential Information, as\nset forth in this Agreement.\nB.\nSC will share such Confidential Information with Associate solely to enable such Associate to perform its\nobligations under its employment with SC (the “Purpose”).\nNOW, THEREFORE, in consideration of the Associate’s employment by SC, and for other good and valuable\nconsideration, the receipt and adequacy of which the Associate acknowledges to be good and valuable consideration for [his/her]\nobligations hereunder, the parties hereto, intending to be legally bound, hereby agree as follows:\n1.\nDefinitions. The following terms shall have the definitions so provided when used in this Agreement:\n“Confidential Information” shall mean all information of any kind whatsoever, whether communicated orally or\nembodied in any medium or electronic format, concerning SC and/or any SC Affiliate, their respective businesses and\nConsumers (as defined herein), which is created, collected, obtained, used, maintained, stored or accessed by, or\ndisclosed to, Associate by or on behalf of SC and/or any SC Affiliate in connection with the Purpose, and shall include,\nwithout limitation, Customer Information (as defined herein), Nonpublic Personal Information (as defined herein), and\nThird Party Vendor Confidential Information (as defined herein), together with any documents, reports, analyses, or\nmaterials reflecting based on or containing any of the foregoing. Notwithstanding the foregoing, Confidential\nInformation shall not include: publicly available information, except to the extent such information is included on a list,\ndescription or other grouping of SC Consumers (and publicly available information pertaining to them) that is derived\nusing any individually identifiable information that is not publicly available.\n“Consumer” shall mean any individual or entity that seeks to obtain, obtains or has obtained a financial product or\nservice from SC and/or any SC Affiliate including, without limitation, any individual, trust or business customer.\n“Customer Information” shall have the meaning assigned to such term in 16 C.F.R. Part 314, as amended from time to\ntime.\n“Nonpublic Personal Information” shall have the meaning assigned to such term in 16 C.F.R. § 313.3, as amended\nfrom time to time.\n“Privacy Laws” shall mean the Gramm-Leach-Bliley Act (15 U.S .C. §§ 6801 et seq.), as it may be in effect and as\namended from time to time, and the regulations promulgated thereunder (including, without limitation, the provisions of\n16 C.F.R. Part 313 and 16 C.F.R. Part 314) (collectively, “GLBA”), and all other state and federal laws and regulations\npertaining to the privacy, confidentiality or security of information created, collected, obtained, used, maintained,\nstored, accessed, disclosed or transferred by a financial institution, and all administrative and court decisions, policies,\nguidelines and procedures relating thereto, as may be in effect and as amended from time to time.\n“SC Affiliates” shall mean any person or entity which directly, or indirectly through one or more intermediaries, owns or\ncontrols, is owned or controlled by, or is under common control or ownership with SC or its ultimate parent, where\n“control” means the possession, directly or indirectly, or the power to direct or cause the direction of the management\npolicies of a person, whether through the ownership of voting securities, by contract or otherwise.\n“Third Party Vendor” shall mean any vendor that performs services or functions for, or provides products or software\nto, SC and/or any SC Affiliate.\n“Third Party Vendor Confidential Information” shall mean all information pertaining to a Third Party Vendor and its\nservices, functions, products or software, which has been disclosed by or on behalf of such Third Party Vendor to SC\nand/or any SC Affiliate.\n2.\nIncorporation of Recitals. The Recitals are incorporated herein and made a part of this agreement.\n3.\nOwnership. All SC’s Confidential Information is and shall remain SC's property, and no rights to it are granted to\nAssociate under this Agreement.\n4.\nUse of Confidential Information.\na) Associate agrees to use Confidential Information solely for the Purpose, for the exclusive use and benefit of SC\nand for no other purpose at any time whatsoever;\nb) Without limitation of the restrictions on use set forth in Section 4(a) above, or the other restrictions of this\nAgreement, Associate shall in all events refrain from, and shall cause any third party to whom Associate discloses\nSC’s Confidential Information to refrain from, directly or indirectly, (i) utilizing Confidential Information in its or their own\nbusiness, (ii) using any Confidential Information in connection with the solicitation of any Consumer for any financial\nrelated product or service or in connection with the recommendation, sale or provision to any Consumer of any\nfinancial related product or service; and\nc) Associate shall use at least a reasonable degree of care to protect the Confidential Information from unauthorized\ndisclosure.\n5.\nDisclosure of Confidential Information. Associate agrees not to disclose any Confidential Information to any\nperson or entity at any time, now or hereafter, except that Associate may disclose Confidential Information to those directors,\nofficers, agents, employees and/or other representatives, including accountants, consultants and financial advisors (collectively\n“Representatives”) who need to know such information for the sole purpose of enabling Associate to carry out the uses specified\nin Section 4, above, and for no other purpose at any time, and who are bound by confidentiality obligations at least as stringent as\nthose set forth in this Agreement. In all events, Associate shall be liable to SC and the SC Affiliates for any misuse or wrongful\ndisclosure of, or other wrongful dealings with Confidential Information and any other breach of this Agreement by Associate, its\nRepresentatives and any third party to whom Associate discloses SC’s Confidential Information. Furthermore, any Confidential\nInformation disclosed to or accessed by any Representative, as a result of Associate acting outside the scope of the limitations\nset forth in section 4 above, shall be deemed to have been disclosed to or accessed by Associate.\n6.\nInformation Security Program. Associate shall use commercially reasonable measures to protect SC’s\nConfidential Information, and comply with SC’s controls to ensure the confidentiality of Confidential Information and that\nConfidential Information is not disclosed contrary to the provisions of this Agreement, GLBA or any other applicable Privacy Laws.\nWithout limiting the foregoing, Associate shall comply with SC’s information security program that includes appropriate\nadministrative, technical and physical safeguards and other security measures that are designed to:\n(i) ensure the security and confidentiality of Confidential Information;\n(ii) protect against any anticipated threats or hazards to the security and integrity of Confidential Information; and\n(iii)\nprotect against unauthorized access to or use of Confidential Information that could result in substantial\nharm or inconvenience to any SC Consumer.\n7.\nNotification of Breach. Associate shall immediately notify SC in writing of any breach of this Agreement or any\nunauthorized use or disclosure of, or access to, Confidential Information of which Associate becomes aware. Such notice shall\nsummarize in reasonable detail the effect on SC of the breach or unauthorized use or disclosure of, or access to, Confidential\nInformation and Associate shall take any corrective action or measure directed by SC.\n8.\nPublicity. Associate hereby consents to any and all uses and displays, by SC and SC Affiliates, of the Associate’s\nname, voice, likeness, image, appearance, and biographical information in, on or in connection with any pictures, photographs,\naudio, and video recordings, digital images, websites, television programs, and advertising, other advertising, sales, and\nmarketing brochures, books, magazines, other publications, CDs, DVDs, tapes, and all other printed and electronic forms and\nmedia throughout the world, at any time during or after the period of [his/her] employment by SC, for all legitimate business\npurposes of SC and SC Affiliates ("Permitted Uses"). Employee hereby forever releases SC and its directors, officers,\nemployees, and Affiliates from any and all claims, actions, damages, losses, costs, expenses, and liability of any kind, arising\nunder any legal or equitable theory whatsoever at any time during or after the period of [his/her] employment by the Employer, in\nconnection with any Permitted Use.\n9.\nConfidential Information of Third Party Vendors. During the course of Associate’s employment with SC,\nAssociate may have access to Third Party Vendor Confidential Information. If a Third Party Vendor imposes restrictions or\nlimitations with respect to such information that are more stringent than those set forth in this Agreement, including, without\nlimitation, additional restrictions applicable to software code, promptly following a written request from SC (which request shall\ninclude a reasonably detailed description of such restrictions or limitations), Associate shall execute and deliver to SC a written\ninstrument, in favor of SC and the applicable Third Party Vendor, in the form provided by SC, to evidence and confirm Associate’s\nagreement to comply with such restrictions or limitations.\n10.\nDisposition of Confidential Information; Survival. At employment termination or earlier at any time upon SC’s\nrequest, Associate shall, as SC may direct, either immediately return to SC or destroy, all originals and copies in all media of all\nConfidential Information which at any time was disclosed to and/or obtained by Associate.\n11.\nInjunctive Relief. Associate agrees that any use or disclosure of Confidential Information in violation of this\nAgreement or any applicable Privacy Law may cause immediate and irreparable harm to SC or the SC Affiliates, for which money\ndamages may not constitute an adequate remedy. Therefore, Associate agrees that SC and the SC Affiliates may obtain\ninjunctive and other equitable relief in addition to its remedies at law without posting a bond or proof of actual damages. Such\nremedy shall not be deemed to be the exclusive remedy for breach of this Agreement but shall be in addition to all other remedies\navailable at law or equity. Associate agrees to reimburse SC costs and expenses (including, without limitation, attorneys' fees)\nincurred by SC in connection with the enforcement of this Agreement.\n12.\nIndemnification. Associate agrees to indemnify, defend and hold harmless SC and the SC Affiliates, and their\nrespective officers, directors, employees, agents, successors and assigns, from and against any and all losses, liabilities,\ndamages, and claims and all related costs and expenses, including reasonable attorneys’ fees, incurred by SC or the SC Affiliates\narising from or in connection with any breach by Associate, its Representatives or any third party to whom Associate discloses\nany SC Confidential information pursuant to section 5, of any provision of this Agreement or violation of any Privacy Law.\n13.\nLegally Required Disclosures. Associate shall immediately notify SC in writing of any subpoena or other court\nor administrative order or proceeding seeking access to or disclosure of\nConfidential Information, provided that the giving of such notice is permitted by law, so that SC may seek an appropriate\nprotective order. If in the absence of a protective order, Associate is nonetheless required by law or compelled to disclose\nConfidential Information or other information concerning SC, disclosure may be made only as to that portion of the Confidential\nInformation or such other information which Associate is legally required or compelled to be disclosed. Associate agrees to\nexercise best efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.\n14.\nConfidentiality of this Agreement. Associate acknowledges that the terms of this Agreement are and shall\nremain confidential. The foregoing shall not prohibit disclosure by Associate of the terms of this Agreement to Associate’s\nindependent public accountants, counsel and/or other professional advisers on a "need to know" basis; provided, however, that\nsuch persons have been advised of this Agreement and agree to comply in writing herewith to the full extent permitted by law.\n15.\nInsider Trading. Associate hereby acknowledges that Associate is aware that the US securities laws prohibit\nany person who has received from an issuer material, non-public information concerning the matters that are the subject of this\nAgreement, from purchasing or selling securities of such issuer or from communicating such information to any other person\nunder circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nTherefore, Associate agrees that Associate will not trade in the securities of SC until such time and under such circumstances as\nit may do so under the applicable securities laws.\n16.\nSuccessors and Assigns. This Agreement shall be binding upon the parties hereto and their respective\nsuccessors and assigns and shall inure to the benefit of the parties hereto and their respective successors and assigns.\n17.\nEffect of Waiver. No failure or delay in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any\nother right, power or privilege hereunder.\n18.\nEntire Agreement. Unless specifically provided herein, this Agreement contains all the understandings and\nrepresentations between the Associate and SC pertaining to the subject matter hereof and supersedes all prior and\ncontemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such\nsubject matter.\n19.\nAmendment. No provision of this Agreement may be amended or modified unless such amendment or\nmodification is agreed to in writing and signed by the Associate and by a duly authorized officer of SC.\n20.\nSeverability. If any provision of this Agreement is not enforceable in whole or in part, the remaining provisions of\nthis Letter Agreement shall not be affected thereby.\n21.\nApplicability of Agreement. This Agreement shall apply to Confidential Information whether disclosed to or\naccessed by Associate prior to, on and/or after the Effective Date of this Agreement.\n22.\nCounterparts. This Agreement may be executed in multiple counterparts, each of which will be deemed an\noriginal, but all of which together shall constitute one and the same instrument. Delivery by facsimile of an executed counterpart\nof a signature page to this Agreement shall be as effective as delivery by traditional methods.\n23.\nAcknowledgment. Nothing in this Agreement shall be construed to in any way terminate, supersede,\nundermine, or otherwise modify the at-will status of the employment relationship between SC and the Associate, pursuant to\nwhich either SC or the Associate may terminate the employment relationship at any time, with or without cause, with or without\nnotice.\n24.\nGoverning Law and Venue. This Agreement shall be governed by, construed and enforced under the laws of\nthe State of Texas as it is applied to agreements entered into and to be performed entirely within such State. The parties hereby\nagree that any action arising out of this Agreement shall be brought in the state or federal courts located in Dallas County, Texas,\nfurther\nirrevocably submit to the exclusive jurisdiction of any such court and waive any objection that such party may now or hereafter\nhave to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an\ninconvenient court, and further agree not to plead or claim the same.\nIN WITNESS WHEREOF, each party has caused this Non-Disclosure Agreement to be executed by one of its duly\nauthorized representatives under seal as of the Effective Date.\nSantander Consumer USA Inc.\nBy: /s/ Mikenzie Sari\nName: Mikenzie Sari\nTitle: Chief Human Resources Officer\nDate: __7/23/2019______________\nAssociate\nBy: /s/ Fahmi Karam\nName: Fahmi Karam\nDate:___7/23/2019______________	NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “Agreement”) is entered into and made effective as of the date of the last signature\nbelow (the “Effective Date”), by and between Santander Consumer USA Inc. (“SC”) on behalf of the corporation, its operating\ndivisions, parent company, and its majority-owned subsidiaries, and (insert candidate name) (the “Associate”).\nRECITALS\nA. In the course of Associate’'s employment with SC, Associate may have access to certain non-public proprietary\ninformation regarding, among others, SC, its Affiliates, their respective businesses, operations, personnel, finances or customers\n(collectively, “Confidential Information”, as further defined below), that Associate shall protect, such Confidential Information, as\nset forth in this Agreement.\nB. SC will share such Confidential Information with Associate solely to enable such Associate to perform its\nobligations under its employment with SC (the “Purpose”).\nNOW, THEREFORE, in consideration of the Associate’s employment by SC, and for other good and valuable\nconsideration, the receipt and adequacy of which the Associate acknowledges to be good and valuable consideration for [his/her]\nobligations hereunder, the parties hereto, intending to be legally bound, hereby agree as follows:\n1. Definitions. The following terms shall have the definitions so provided when used in this Agreement:\n“Confidential Information” shall mean all information of any kind whatsoever, whether communicated orally or\nembodied in any medium or electronic format, concerning SC and/or any SC Affiliate, their respective businesses and\nConsumers (as defined herein), which is created, collected, obtained, used, maintained, stored or accessed by, or\ndisclosed to, Associate by or on behalf of SC and/or any SC Affiliate in connection with the Purpose, and shall include,\nwithout limitation, Customer Information (as defined herein), Nonpublic Personal Information (as defined herein), and\nThird Party Vendor Confidential Information (as defined herein), together with any documents, reports, analyses, or\nmaterials reflecting based on or containing any of the foregoing. Notwithstanding the foregoing, Confidential\nInformation shall not include: publicly available information, except to the extent such information is included on a list,\ndescription or other grouping of SC Consumers (and publicly available information pertaining to them) that is derived\nusing any individually identifiable information that is not publicly available.\n“Consumer” shall mean any individual or entity that seeks to obtain, obtains or has obtained a financial product or\nservice from SC and/or any SC Affiliate including, without limitation, any individual, trust or business customer.\n“Customer Information” shall have the meaning assigned to such term in 16 C.F.R. Part 314, as amended from time to\ntime.\n“Nonpublic Personal Information” shall have the meaning assigned to such term in 16 C.FR. § 313.3, as amended\nfrom time to time.\n“Privacy Laws” shall mean the Gramm-Leach-Bliley Act (15 U.S.C. 88 6801 et seq.), as it may be in effect and as\namended from time to time, and the regulations promulgated thereunder (including, without limitation, the provisions of\n16 C.F.R. Part 313 and 16 C.F.R. Part 314) (collectively, “GLBA"), and all other state and federal laws and regulations\npertaining to the privacy, confidentiality or security of information created, collected, obtained, used, maintained,\nstored, accessed, disclosed or transferred by a financial institution, and all administrative and court decisions, policies,\nguidelines and procedures relating thereto, as may be in effect and as amended from time to time.\n“SC Affiliates” shall mean any person or entity which directly, or indirectly through one or more intermediaries, owns or\ncontrols, is owned or controlled by, or is under common control or ownership with SC or its ultimate parent, where\n“control” means the possession, directly or indirectly, or the power to direct or cause the direction of the management\npolicies of a person, whether through the ownership of voting securities, by contract or otherwise.\n“Third Party Vendor” shall mean any vendor that performs services or functions for, or provides products or software\nto, SC and/or any SC Affiliate.\n“Third Party Vendor Confidential Information” shall mean all information pertaining to a Third Party Vendor and its\nservices, functions, products or software, which has been disclosed by or on behalf of such Third Party Vendor to SC\nand/or any SC Affiliate.\n2. Incorporation of Recitals. The Recitals are incorporated herein and made a part of this agreement.\n3. Ownership. All SC’s Confidential Information is and shall remain SC's property, and no rights to it are granted to\nAssociate under this Agreement.\n4, Use of Confidential Information.\na) Associate agrees to use Confidential Information solely for the Purpose, for the exclusive use and benefit of SC\nand for no other purpose at any time whatsoever;\nb) Without limitation of the restrictions on use set forth in Section 4(a) above, or the other restrictions of this\nAgreement, Associate shall in all events refrain from, and shall cause any third party to whom Associate discloses\nSC'’s Confidential Information to refrain from, directly or indirectly, (i) utilizing Confidential Information in its or their own\nbusiness, (ii) using any Confidential Information in connection with the solicitation of any Consumer for any financial\nrelated product or service or in connection with the recommendation, sale or provision to any Consumer of any\nfinancial related product or service; and\nc) Associate shall use at least a reasonable degree of care to protect the Confidential Information from unauthorized\ndisclosure.\n5. Disclosure of Confidential Information. Associate agrees not to disclose any Confidential Information to any\nperson or entity at any time, now or hereafter, except that Associate may disclose Confidential Information to those directors,\nofficers, agents, employees and/or other representatives, including accountants, consultants and financial advisors (collectively\n“Representatives”) who need to know such information for the sole purpose of enabling Associate to carry out the uses specified\nin Section 4, above, and for no other purpose at any time, and who are bound by confidentiality obligations at least as stringent as\nthose set forth in this Agreement. In all events, Associate shall be liable to SC and the SC Affiliates for any misuse or wrongful\ndisclosure of, or other wrongful dealings with Confidential Information and any other breach of this Agreement by Associate, its\nRepresentatives and any third party to whom Associate discloses SC’s Confidential Information. Furthermore, any Confidential\nInformation disclosed to or accessed by any Representative, as a result of Associate acting outside the scope of the limitations\nset forth in section 4 above, shall be deemed to have been disclosed to or accessed by Associate.\n6. Information Security Program. Associate shall use commercially reasonable measures to protect SC's\nConfidential Information, and comply with SC’s controls to ensure the confidentiality of Confidential Information and that\nConfidential Information is not disclosed contrary to the provisions of this Agreement, GLBA or any other applicable Privacy Laws.\nWithout limiting the foregoing, Associate shall comply with SC’s information security program that includes appropriate\nadministrative, technical and physical safeguards and other security measures that are designed to:\n(i) ensure the security and confidentiality of Confidential Information;\n(ii) protect against any anticipated threats or hazards to the security and integrity of Confidential Information; and\n(iii) protect against unauthorized access to or use of Confidential Information that could result in substantial\nharm or inconvenience to any SC Consumer.\n7. Notification of Breach. Associate shall immediately notify SC in writing of any breach of this Agreement or any\nunauthorized use or disclosure of, or access to, Confidential Information of which Associate becomes aware. Such notice shall\nsummarize in reasonable detail the effect on SC of the breach or unauthorized use or disclosure of, or access to, Confidential\nInformation and Associate shall take any corrective action or measure directed by SC.\n8. Publicity. Associate hereby consents to any and all uses and displays, by SC and SC Affiliates, of the Associate’s\nname, voice, likeness, image, appearance, and biographical information in, on or in connection with any pictures, photographs,\naudio, and video recordings, digital images, websites, television programs, and advertising, other advertising, sales, and\nmarketing brochures, books, magazines, other publications, CDs, DVDs, tapes, and all other printed and electronic forms and\nmedia throughout the world, at any time during or after the period of [his/her] employment by SC, for all legitimate business\npurposes of SC and SC Affiliates ("Permitted Uses"). Employee hereby forever releases SC and its directors, officers,\nemployees, and Affiliates from any and all claims, actions, damages, losses, costs, expenses, and liability of any kind, arising\nunder any legal or equitable theory whatsoever at any time during or after the period of [his/her] employment by the Employer, in\nconnection with any Permitted Use.\n9. Confidential Information of Third Party Vendors. During the course of Associate’s employment with SC,\nAssociate may have access to Third Party Vendor Confidential Information. If a Third Party Vendor imposes restrictions or\nlimitations with respect to such information that are more stringent than those set forth in this Agreement, including, without\nlimitation, additional restrictions applicable to software code, promptly following a written request from SC (which request shall\ninclude a reasonably detailed description of such restrictions or limitations), Associate shall execute and deliver to SC a written\ninstrument, in favor of SC and the applicable Third Party Vendor, in the form provided by SC, to evidence and confirm Associate’s\nagreement to comply with such restrictions or limitations.\n10. Disposition of Confidential Information; Survival. At employment termination or earlier at any time upon SC’s\nrequest, Associate shall, as SC may direct, either immediately return to SC or destroy, all originals and copies in all media of all\nConfidential Information which at any time was disclosed to and/or obtained by Associate.\n11. Injunctive Relief. Associate agrees that any use or disclosure of Confidential Information in violation of this\nAgreement or any applicable Privacy Law may cause immediate and irreparable harm to SC or the SC Affiliates, for which money\ndamages may not constitute an adequate remedy. Therefore, Associate agrees that SC and the SC Affiliates may obtain\ninjunctive and other equitable relief in addition to its remedies at law without posting a bond or proof of actual damages. Such\nremedy shall not be deemed to be the exclusive remedy for breach of this Agreement but shall be in addition to all other remedies\navailable at law or equity. Associate agrees to reimburse SC costs and expenses (including, without limitation, attorneys' fees)\nincurred by SC in connection with the enforcement of this Agreement.\n12. Indemnification. Associate agrees to indemnify, defend and hold harmless SC and the SC Affiliates, and their\nrespective officers, directors, employees, agents, successors and assigns, from and against any and all losses, liabilities,\ndamages, and claims and all related costs and expenses, including reasonable attorneys’ fees, incurred by SC or the SC Affiliates\narising from or in connection with any breach by Associate, its Representatives or any third party to whom Associate discloses\nany SC Confidential information pursuant to section 5, of any provision of this Agreement or violation of any Privacy Law.\n13. Legally Required Disclosures. Associate shall immediately notify SC in writing of any subpoena or other court\nor administrative order or proceeding seeking access to or disclosure of\nConfidential Information, provided that the giving of such notice is permitted by law, so that SC may seek an appropriate\nprotective order. If in the absence of a protective order, Associate is nonetheless required by law or compelled to disclose\nConfidential Information or other information concerning SC, disclosure may be made only as to that portion of the Confidential\nInformation or such other information which Associate is legally required or compelled to be disclosed. Associate agrees to\nexercise best efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.\n14. Confidentiality of this Agreement. Associate acknowledges that the terms of this Agreement are and shall\nremain confidential. The foregoing shall not prohibit disclosure by Associate of the terms of this Agreement to Associate’s\nindependent public accountants, counsel and/or other professional advisers on a "need to know" basis; provided, however, that\nsuch persons have been advised of this Agreement and agree to comply in writing herewith to the full extent permitted by law.\n15. Insider Trading. Associate hereby acknowledges that Associate is aware that the US securities laws prohibit\nany person who has received from an issuer material, non-public information concerning the matters that are the subject of this\nAgreement, from purchasing or selling securities of such issuer or from communicating such information to any other person\nunder circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nTherefore, Associate agrees that Associate will not trade in the securities of SC until such time and under such circumstances as\nit may do so under the applicable securities laws.\n16. Successors and Assigns. This Agreement shall be binding upon the parties hereto and their respective\nsuccessors and assigns and shall inure to the benefit of the parties hereto and their respective successors and assigns.\n17. Effect of Waiver. No failure or delay in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any\nother right, power or privilege hereunder.\n18. Entire Agreement. Unless specifically provided herein, this Agreement contains all the understandings and\nrepresentations between the Associate and SC pertaining to the subject matter hereof and supersedes all prior and\ncontemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such\nsubject matter.\n19. Amendment. No provision of this Agreement may be amended or modified unless such amendment or\nmodification is agreed to in writing and signed by the Associate and by a duly authorized officer of SC.\n20. Severability. If any provision of this Agreement is not enforceable in whole or in part, the remaining provisions of\nthis Letter Agreement shall not be affected thereby.\n21. Applicability of Agreement. This Agreement shall apply to Confidential Information whether disclosed to or\naccessed by Associate prior to, on and/or after the Effective Date of this Agreement.\n22. Counterparts. This Agreement may be executed in multiple counterparts, each of which will be deemed an\noriginal, but all of which together shall constitute one and the same instrument. Delivery by facsimile of an executed counterpart\nof a signature page to this Agreement shall be as effective as delivery by traditional methods.\n23. Acknowledgment. Nothing in this Agreement shall be construed to in any way terminate, supersede,\nundermine, or otherwise modify the at-will status of the employment relationship between SC and the Associate, pursuant to\nwhich either SC or the Associate may terminate the employment relationship at any time, with or without cause, with or without\nnotice.\n24. Governing Law and Venue. This Agreement shall be governed by, construed and enforced under the laws of\nthe State of Texas as it is applied to agreements entered into and to be performed entirely within such State. The parties hereby\nagree that any action arising out of this Agreement shall be brought in the state or federal courts located in Dallas County, Texas,\nfurther\nirrevocably submit to the exclusive jurisdiction of any such court and waive any objection that such party may now or hereafter\nhave to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an\ninconvenient court, and further agree not to plead or claim the same.\nIN WITNESS WHEREOF, each party has caused this Non-Disclosure Agreement to be executed by one of its duly\nauthorized representatives under seal as of the Effective Date.\nSantander Consumer USA Inc.\nBy: /s/ Mikenzie Sari\nName: Mikenzie Sari\nTitle: Chief Human Resources Officer\nDate: __ 7/23/2019\nAssociate\nBy: /s/ Fahmi Karam\nName: Fahmi Karam\nDate: 7/23/2019	NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this "Agreement") is entered into and made effective as of the date of the last signature\nbelow (the "Effective Date"), by and between Santander Consumer USA Inc. ("SC") on behalf of the corporation, its operating\ndivisions, parent company, and its majority-owned subsidiaries, and (insert candidate name) (the "Associate").\nRECITALS\nA.\nIn the course of Associate's employment with SC, Associate may have access to certain non-public proprietary\ninformation regarding, among others, SC, its Affiliates, their respective businesses, operations, personnel, finances or customers\n(collectively, "Confidential Information", as further defined below), that Associate shal protect, such Confidential Information, as\nset forth in this Agreement.\nB.\nSC will share such Confidential Information with Associate solely to enable such Associate to perform its\nobligations under its employment with SC (the "Purpose").\nNOW, THEREFORE, in consideration of the Associate's employment by SC, and for other good and valuable\nconsideration, the receipt and adequacy of which the Associate acknowledges to be good and valuable consideration for [his/her]\nobligations hereunder, the parties hereto, intending to be legally bound, hereby agree as follows:\n1.\nDefinitions. The following terms shall have the definitions so provided when used in this Agreement:\n"Confidential Information" shall mean all information of any kind whatsoever, whether communicated orally or\nembodied in any medium or electronic format, concerning SC and/or any SC Affiliate, their respective businesses and\nConsumers (as defined herein), which is created, collected, obtained, used, maintained, stored or accessed by, or\ndisclosed to, Associate by or on behalf of SC and/or any SC Affiliate in connection with the Purpose, and shall include,\nwithout limitation, Customer Information (as defined herein), Nonpublic Personal Information (as defined herein), and\nThird Party Vendor Confidential Information (as defined herein), together with any documents, reports, analyses, or\nmaterials reflecting based on or containing any of the foregoing. Notwithstanding the foregoing, Confidentia\nInformation shall not include: publicly available information, except to the extent such information is included on a list,\ndescription or other grouping of SC Consumers (and publicly available information pertaining to them) that is derived\nusing any individually identifiable information that is not publicly available.\n"Consumer" shall mean any individual or entity that seeks to obtain, obtains or has obtained a financial product or\nservice from SC and/or any SC Affiliate including, without limitation, any individual, trust or business customer.\n"Customer Information" shall have the meaning assigned to such term in 16 C.F.R. Part 314, as amended from time to\ntime.\n"Nonpublic Personal Information" shall have the meaning assigned to such term in 16 C.F.R. 8 313.3, as amended\nfrom time to time.\n"Privacy Laws" shall mean the Gramm-Leach-Bliley Act (15 U.S.C. 88 6801 et seq.), as it may be in effect and as\namended\nfrom\ntime\nto\ntime,\nand\nthe\nregulations\npromulgated\nthereunder\n(including,\nwithout\nlimitation,\nthe\nprovisions\nof\n16 C.F.R. Part 313 and 16 C.F.R. Part 314) (collectively, "GLBA"), and all other state and federal laws and regulations\npertaining to the privacy, confidentiality or security of information created, collected, obtained, used, maintained,\nstored, accessed, disclosed or transferred by a financial institution, and all administrative and court decisions, policies,\nguidelines and procedures relating thereto, as may be in effect and as amended from time to time.\n"SC Affiliates" shal mean any person or entity which directly, or indirectly through one or more intermediaries, owns or\ncontrols, is owned or controlled by, or is under common control or ownership with SC or its ultimate parent, where\n"control" means the possession, directly or indirectly, or the power to direct or cause the direction of the management\npolicies of a person, whether through the ownership of voting securities, by contract or otherwise.\n"Third Party. yVendor" shall mean any vendor that performs services or functions for, or provides products or software\nto, SC and/or any SC Affiliate.\n"Third Party Vendor Confidential Information" shall mean all information pertaining to a Third Party Vendor and its\nservices, functions, products or software, which has been disclosed by or on behalf of such Third Party Vendor to SC\nand/or any SC Affiliate.\n2.\nIncorporation of Recitals. The Recitals are incorporated herein and made a part of this agreement.\n3.\nOwnership. All SC's Confidential Information is and shall remain SC's property, and no rights to it are granted to\nAssociate under this Agreement.\n4.\nUse of Confidential Information.\na)\nAssociate agrees to use Confidential Information solely for the Purpose, for the exclusive use and benefit of SC\nand for no other purpose at any time whatsoever;\nb) Without limitation of the restrictions on use set forth in Section 4(a) above, or the other restrictions of this\nAgreement, Associate shall in all events refrain from, and shall cause any third party to whom Associate discloses\nSC's Confidential Information to refrain from, directly or indirectly, (i) utilizing Confidential Information in its or their own\nbusiness, (ii) using any Confidential Information in connection with the solicitation of any Consumer for any financial\nrelated product or service or in connection with the recommendation, sale or provision to any Consumer of any\nfinancial related product or service; and\nc)\nAssociate shall use at least a reasonable degree of care to protect the Confidentia Information from unauthorized\ndisclosure.\n5.\nDisclosure of Confidential Information. Associate agrees not to disclose any Confidential Information to any\nperson or entity at any time, now or hereafter, except that Associate may disclose Confidential Information to those directors,\nofficers, agents, employees and/or other representatives, including accountants, consultants and financial advisors (collectively\n"Representatives") who need to know such information for the sole purpose of enabling Associate to carry out the uses specified\nin Section 4, above, and for no other purpose at any time, and who are bound by confidentiality obligations at least as stringent\nas\nthose set forth in this Agreement. In all events, Associate shall be liable to SC and the SC Affiliates for any misuse or wrongful\ndisclosure of, or other wrongful dealings with Confidentia Information and any other breach of this Agreement by Associate, its\nRepresentatives\nand\nany\nthird\nparty\nto\nwhom\nAssociate\ndiscloses\nSC's\nConfidential\nInformation.\nFurthermore,\nany\nConfidential\nInformation disclosed to or accessed by any Representative, as a result of Associate acting outside the scope of the limitations\nset forth in section 4 above, shall be deemed to have been disclosed to or accessed by Associate.\n6.\nInformation Security Program. Associate shall use commercially reasonable measures to protect SC's\nConfidential Information, and comply with SC's controls to ensure the confidentiality of Confidential Information and that\nConfidential Information is not disclosed contrary to the provisions of this Agreement, GLBA or any other applicable Privacy Laws.\nWithout limiting the foregoing, Associate shal comply with SC's information security program that includes appropriate\nadministrative, technical and physical safeguards and other security measures that are designed to:\n(i) ensure the security and confidentiality of Confidentia Information;\n(ii)\nprotect against any anticipated threats or hazards to the security and integrity of Confidentia Information; and\n(iii)\nprotect against unauthorized access to or use of Confidential Information that could result in substantia\nharm or inconvenience to any SC Consumer.\n7.\nNotification of Breach. Associate shall immediately notify SC in writing of any breach of this Agreement or any\nunauthorized use or disclosure of, or access to, Confidential Information of which Associate becomes aware. Such notice shall\nsummarize in reasonable detail the effect on SC of the breach or unauthorized use or disclosure of, or access to, Confidential\nInformation and Associate shall take any corrective action or measure directed by SC.\n8.\nPublicity. Associate hereby consents to any and all uses and displays, by SC and SC Affiliates, of the Associate's\nname, voice, likeness, image, appearance, and biographical information in, on or in connection with any pictures, photographs,\naudio, and video recordings, digita images, websites, television programs, and advertising, other advertising, sales, and\nmarketing brochures, books, magazines, other publications, CDs, DVDs, tapes, and all other printed and electronic forms and\nmedia\nthroughout\nthe\nworld,\nat\nany\ntime\nduring\nor\nafter\nthe\nperiod\nof\n[his/her]\nemployment\nby\nSC,\nfor\nall\nlegitimate\nbusiness\npurposes of SC and SC Affiliates ("Permitted Uses"). Employee hereby forever releases SC and its directors, officers,\nemployees, and Affiliates from any and all claims, actions, damages, losses, costs, expenses, and liability of any kind, arising\nunder any legal or equitable theory whatsoever at any time during or after the period of [his/her] employment by the Employer, in\nconnection with any Permitted Use.\n9.\nConfidential Information of Third Party Vendors. During the course of Associate's employment with SC,\nAssociate may have access to Third Party Vendor Confidential Information. If a Third Party Vendor imposes restrictions or\nlimitations with respect to such information that are more stringent than those set forth in this Agreement, including, without\nlimitation, additional restrictions applicable to software code, promptly following a written request from SC (which request shall\ninclude a reasonably detailed description of such restrictions or limitations), Associate shall execute and deliver to SC a written\ninstrument, in favor of SC and the applicable Third Party Vendor, in the form provided by SC, to evidence and confirm Associate's\nagreement to comply with such restrictions or limitations.\n10.\nDisposition of Confidential Information; Survival. At employment termination or earlier at any time upon SC's\nrequest, Associate shall, as SC may direct, either immediately return to SC or destroy, all originals and copies in all media of all\nConfidential Information which at any time was disclosed to and/or obtained by Associate.\n11.\nInjunctive Relief. Associate agrees that any use or disclosure of Confidentia Information in violation of this\nAgreement or any applicable Privacy Law may cause immediate and irreparable harm to SC or the SC Affiliates, for which money\ndamages\nmay\nnot\nconstitute\nan\nadequate\nremedy.\nTherefore,\nAssociate\nagrees\nthat\nSC\nand\nthe\nSC\nAffiliates\nmay\nobtain\ninjunctive and other equitable relief in addition to its remedies at law without posting a bond or proof of actual damages. Such\nremedy shall not be deemed to be the exclusive remedy for breach of this Agreement but shall be in addition to all other remedies\navailable at law or equity. Associate agrees to reimburse SC costs and expenses (including, without limitation, attorneys' fees)\nincurred by SC in connection with the enforcement of this Agreement.\n12.\nIndemnification. Associate agrees to indemnify, defend and hold harmless SC and the SC Affiliates, and their\nrespective officers, directors, employees, agents, successors and assigns, from and against any and all losses, liabilities,\ndamages, and claims and all related costs and expenses, including reasonable attorneys' fees, incurred by SC or the SC Affiliates\narising from or in connection with any breach by Associate, its Representatives or any third party to whom Associate discloses\nany SC Confidentia information pursuant to section 5, of any provision of this Agreement or violation of any Privacy Law.\n13.\nLegally Required Disclosures. Associate shall immediately notify SC in writing of any subpoena or other court\nor administrative order or proceeding seeking access to or disclosure of\nConfidential Information, provided that the giving of such notice is permitted by law, so that SC may seek an appropriate\nprotective order. If in the absence of a protective order, Associate is nonetheless required by law or compelled to disclose\nConfidential Information or other information concerning SC, disclosure may be made only as to that portion of the Confidential\nInformation or such other information which Associate is legally required or compelled to be disclosed. Associate agrees to\nexercise best efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.\n14.\nConfidentiality of this Agreement. Associate acknowledges that the terms of this Agreement are and shall\nremain confidential. The foregoing shall not prohibit disclosure by Associate of the terms of this Agreement to Associate's\nindependent public accountants, counsel and/or other professional advisers on a "need to know" basis; provided, however, that\nsuch persons have been advised of this Agreement and agree to comply in writing herewith to the full extent permitted by law.\n15.\nInsider Trading. Associate hereby acknowledges that Associate is aware that the US securities laws prohibit\nany person who has received from an issuer material, non-public information concerning the matters that are the subject of this\nAgreement, from purchasing or selling securities of such issuer or from communicating such information to any other person\nunder circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nTherefore, Associate agrees that Associate will not trade in the securities of SC until such time and under such circumstances as\nit may do so under the applicable securities laws.\n16.\nSuccessors and Assigns. This Agreement shall be binding upon the parties hereto and their respective\nsuccessors and assigns and shall inure to the benefit of the parties hereto and their respective successors and assigns.\n17.\nEffect of Waiver. No failure or delay in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any\nother right, power or privilege hereunder.\n18.\nEntire Agreement. Unless specifically provided herein, this Agreement contains all the understandings and\nrepresentations between the Associate and SC pertaining to the subject matter hereof and supersedes all prior and\ncontemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such\nsubject matter.\n19.\nAmendment. No provision of this Agreement may be amended or modified unless such amendment or\nmodification is agreed to in writing and signed by the Associate and by a duly authorized officer of SC.\n20.\nSeverability. If any provision of this Agreement is not enforceable in whole or in part, the remaining provisions of\nthis Letter Agreement shall not be affected thereby.\n21.\nApplicability of Agreement. This Agreement shall apply to Confidential Information whether disclosed to or\naccessed by Associate prior to, on and/or after the Effective Date of this Agreement.\n22.\nCounterparts. This Agreement may be executed in multiple counterparts, each of which will be deemed an\noriginal, but all of which together shall constitute one and the same instrument. Delivery by facsimile of an executed counterpart\nof a signature page to this Agreement shall be as effective as delivery by traditional methods.\n23.\nAcknowledgment. Nothing in this Agreement shall be construed to in any way terminate, supersede,\nundermine,\nor\notherwise\nmodify\nthe\nat-will\nstatus\nof\nthe\nemployment\nrelationship\nbetween\nSC\nand\nthe\nAssociate,\npursuant\nto\nwhich either SC or the Associate may terminate the employment relationship at any time, with or without cause, with or without\nnotice.\n24.\nGoverning Law and Venue. This Agreement shall be governed by, construed and enforced under the laws of\nthe State of Texas as it is applied to agreements entered into and to be performed entirely within such State. The parties hereby\nagree that any action arising out of this Agreement shall be brought in the state or federal courts located in Dallas County, Texas,\nfurther\nirrevocably submit to the exclusive jurisdiction of any such court and waive any objection that such party may now or hereafter\nhave to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an\ninconvenient court, and further agree not to plead or claim the same.\nIN WITNESS WHEREOF, each party has caused this Non-Disclosure Agreement to be executed by one of its duly\nauthorized representatives under seal as of the Effective Date.\nSantander Consumer USA Inc.\nBy: Is/ Mikenzie Sari\nName: Mikenzie Sari\nTitle: Chief Human Resources Officer\nDate: 7/23/2019\nAssociate\nBy: /s/ Fahmi Karam\nName: Fahmi Karam\nDate: 7/23/2019	NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “Agreement”) is entered into and made effective as of the date of the last signature\nbelow (the “Effective Date”), by and between Santander Consumer USA Inc. (“SC”) on behalf of the corporation, its operating\ndivisions, parent company, and its majority-owned subsidiaries, and (insert candidate name) (the “Associate”).\nRECITALS\nA.\nIn the course of Associate’s employment with SC, Associate may have access to certain non-public proprietary\ninformation regarding, among others, SC, its Affiliates, their respective businesses, operations, personnel, finances or customers\n(collectively, “Confidential Information”, as further defined below), that Associate shall protect, such Confidential Information, as\nset forth in this Agreement.\nB.\nSC will share such Confidential Information with Associate solely to enable such Associate to perform its\nobligations under its employment with SC (the “Purpose”).\nNOW, THEREFORE, in consideration of the Associate’s employment by SC, and for other good and valuable\nconsideration, the receipt and adequacy of which the Associate acknowledges to be good and valuable consideration for [his/her]\nobligations hereunder, the parties hereto, intending to be legally bound, hereby agree as follows:\n1.\nDefinitions. The following terms shall have the definitions so provided when used in this Agreement:\n“Confidential Information” shall mean all information of any kind whatsoever, whether communicated orally or\nembodied in any medium or electronic format, concerning SC and/or any SC Affiliate, their respective businesses and\nConsumers (as defined herein), which is created, collected, obtained, used, maintained, stored or accessed by, or\ndisclosed to, Associate by or on behalf of SC and/or any SC Affiliate in connection with the Purpose, and shall include,\nwithout limitation, Customer Information (as defined herein), Nonpublic Personal Information (as defined herein), and\nThird Party Vendor Confidential Information (as defined herein), together with any documents, reports, analyses, or\nmaterials reflecting based on or containing any of the foregoing. Notwithstanding the foregoing, Confidential\nInformation shall not include: publicly available information, except to the extent such information is included on a list,\ndescription or other grouping of SC Consumers (and publicly available information pertaining to them) that is derived\nusing any individually identifiable information that is not publicly available.\n“Consumer” shall mean any individual or entity that seeks to obtain, obtains or has obtained a financial product or\nservice from SC and/or any SC Affiliate including, without limitation, any individual, trust or business customer.\n“Customer Information” shall have the meaning assigned to such term in 16 C.F.R. Part 314, as amended from time to\ntime.\n“Nonpublic Personal Information” shall have the meaning assigned to such term in 16 C.F.R. § 313.3, as amended\nfrom time to time.\n“Privacy Laws” shall mean the Gramm-Leach-Bliley Act (15 U.S .C. §§ 6801 et seq.), as it may be in effect and as\namended from time to time, and the regulations promulgated thereunder (including, without limitation, the provisions of\n16 C.F.R. Part 313 and 16 C.F.R. Part 314) (collectively, “GLBA”), and all other state and federal laws and regulations\npertaining to the privacy, confidentiality or security of information created, collected, obtained, used, maintained,\nstored, accessed, disclosed or transferred by a financial institution, and all administrative and court decisions, policies,\nguidelines and procedures relating thereto, as may be in effect and as amended from time to time.\n“SC Affiliates” shall mean any person or entity which directly, or indirectly through one or more intermediaries, owns or\ncontrols, is owned or controlled by, or is under common control or ownership with SC or its ultimate parent, where\n“control” means the possession, directly or indirectly, or the power to direct or cause the direction of the management\npolicies of a person, whether through the ownership of voting securities, by contract or otherwise.\n“Third Party Vendor” shall mean any vendor that performs services or functions for, or provides products or software\nto, SC and/or any SC Affiliate.\n“Third Party Vendor Confidential Information” shall mean all information pertaining to a Third Party Vendor and its\nservices, functions, products or software, which has been disclosed by or on behalf of such Third Party Vendor to SC\nand/or any SC Affiliate.\n2.\nIncorporation of Recitals. The Recitals are incorporated herein and made a part of this agreement.\n3.\nOwnership. All SC’s Confidential Information is and shall remain SC's property, and no rights to it are granted to\nAssociate under this Agreement.\n4.\nUse of Confidential Information.\na) Associate agrees to use Confidential Information solely for the Purpose, for the exclusive use and benefit of SC\nand for no other purpose at any time whatsoever;\nb) Without limitation of the restrictions on use set forth in Section 4(a) above, or the other restrictions of this\nAgreement, Associate shall in all events refrain from, and shall cause any third party to whom Associate discloses\nSC’s Confidential Information to refrain from, directly or indirectly, (i) utilizing Confidential Information in its or their own\nbusiness, (ii) using any Confidential Information in connection with the solicitation of any Consumer for any financial\nrelated product or service or in connection with the recommendation, sale or provision to any Consumer of any\nfinancial related product or service; and\nc) Associate shall use at least a reasonable degree of care to protect the Confidential Information from unauthorized\ndisclosure.\n5.\nDisclosure of Confidential Information. Associate agrees not to disclose any Confidential Information to any\nperson or entity at any time, now or hereafter, except that Associate may disclose Confidential Information to those directors,\nofficers, agents, employees and/or other representatives, including accountants, consultants and financial advisors (collectively\n“Representatives”) who need to know such information for the sole purpose of enabling Associate to carry out the uses specified\nin Section 4, above, and for no other purpose at any time, and who are bound by confidentiality obligations at least as stringent as\nthose set forth in this Agreement. In all events, Associate shall be liable to SC and the SC Affiliates for any misuse or wrongful\ndisclosure of, or other wrongful dealings with Confidential Information and any other breach of this Agreement by Associate, its\nRepresentatives and any third party to whom Associate discloses SC’s Confidential Information. Furthermore, any Confidential\nInformation disclosed to or accessed by any Representative, as a result of Associate acting outside the scope of the limitations\nset forth in section 4 above, shall be deemed to have been disclosed to or accessed by Associate.\n6.\nInformation Security Program. Associate shall use commercially reasonable measures to protect SC’s\nConfidential Information, and comply with SC’s controls to ensure the confidentiality of Confidential Information and that\nConfidential Information is not disclosed contrary to the provisions of this Agreement, GLBA or any other applicable Privacy Laws.\nWithout limiting the foregoing, Associate shall comply with SC’s information security program that includes appropriate\nadministrative, technical and physical safeguards and other security measures that are designed to:\n(i) ensure the security and confidentiality of Confidential Information;\n(ii) protect against any anticipated threats or hazards to the security and integrity of Confidential Information; and\n(iii)\nprotect against unauthorized access to or use of Confidential Information that could result in substantial\nharm or inconvenience to any SC Consumer.\n7.\nNotification of Breach. Associate shall immediately notify SC in writing of any breach of this Agreement or any\nunauthorized use or disclosure of, or access to, Confidential Information of which Associate becomes aware. Such notice shall\nsummarize in reasonable detail the effect on SC of the breach or unauthorized use or disclosure of, or access to, Confidential\nInformation and Associate shall take any corrective action or measure directed by SC.\n8.\nPublicity. Associate hereby consents to any and all uses and displays, by SC and SC Affiliates, of the Associate’s\nname, voice, likeness, image, appearance, and biographical information in, on or in connection with any pictures, photographs,\naudio, and video recordings, digital images, websites, television programs, and advertising, other advertising, sales, and\nmarketing brochures, books, magazines, other publications, CDs, DVDs, tapes, and all other printed and electronic forms and\nmedia throughout the world, at any time during or after the period of [his/her] employment by SC, for all legitimate business\npurposes of SC and SC Affiliates ("Permitted Uses"). Employee hereby forever releases SC and its directors, officers,\nemployees, and Affiliates from any and all claims, actions, damages, losses, costs, expenses, and liability of any kind, arising\nunder any legal or equitable theory whatsoever at any time during or after the period of [his/her] employment by the Employer, in\nconnection with any Permitted Use.\n9.\nConfidential Information of Third Party Vendors. During the course of Associate’s employment with SC,\nAssociate may have access to Third Party Vendor Confidential Information. If a Third Party Vendor imposes restrictions or\nlimitations with respect to such information that are more stringent than those set forth in this Agreement, including, without\nlimitation, additional restrictions applicable to software code, promptly following a written request from SC (which request shall\ninclude a reasonably detailed description of such restrictions or limitations), Associate shall execute and deliver to SC a written\ninstrument, in favor of SC and the applicable Third Party Vendor, in the form provided by SC, to evidence and confirm Associate’s\nagreement to comply with such restrictions or limitations.\n10.\nDisposition of Confidential Information; Survival. At employment termination or earlier at any time upon SC’s\nrequest, Associate shall, as SC may direct, either immediately return to SC or destroy, all originals and copies in all media of all\nConfidential Information which at any time was disclosed to and/or obtained by Associate.\n11.\nInjunctive Relief. Associate agrees that any use or disclosure of Confidential Information in violation of this\nAgreement or any applicable Privacy Law may cause immediate and irreparable harm to SC or the SC Affiliates, for which money\ndamages may not constitute an adequate remedy. Therefore, Associate agrees that SC and the SC Affiliates may obtain\ninjunctive and other equitable relief in addition to its remedies at law without posting a bond or proof of actual damages. Such\nremedy shall not be deemed to be the exclusive remedy for breach of this Agreement but shall be in addition to all other remedies\navailable at law or equity. Associate agrees to reimburse SC costs and expenses (including, without limitation, attorneys' fees)\nincurred by SC in connection with the enforcement of this Agreement.\n12.\nIndemnification. Associate agrees to indemnify, defend and hold harmless SC and the SC Affiliates, and their\nrespective officers, directors, employees, agents, successors and assigns, from and against any and all losses, liabilities,\ndamages, and claims and all related costs and expenses, including reasonable attorneys’ fees, incurred by SC or the SC Affiliates\narising from or in connection with any breach by Associate, its Representatives or any third party to whom Associate discloses\nany SC Confidential information pursuant to section 5, of any provision of this Agreement or violation of any Privacy Law.\n13.\nLegally Required Disclosures. Associate shall immediately notify SC in writing of any subpoena or other court\nor administrative order or proceeding seeking access to or disclosure of\nConfidential Information, provided that the giving of such notice is permitted by law, so that SC may seek an appropriate\nprotective order. If in the absence of a protective order, Associate is nonetheless required by law or compelled to disclose\nConfidential Information or other information concerning SC, disclosure may be made only as to that portion of the Confidential\nInformation or such other information which Associate is legally required or compelled to be disclosed. Associate agrees to\nexercise best efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.\n14.\nConfidentiality of this Agreement. Associate acknowledges that the terms of this Agreement are and shall\nremain confidential. The foregoing shall not prohibit disclosure by Associate of the terms of this Agreement to Associate’s\nindependent public accountants, counsel and/or other professional advisers on a "need to know" basis; provided, however, that\nsuch persons have been advised of this Agreement and agree to comply in writing herewith to the full extent permitted by law.\n15.\nInsider Trading. Associate hereby acknowledges that Associate is aware that the US securities laws prohibit\nany person who has received from an issuer material, non-public information concerning the matters that are the subject of this\nAgreement, from purchasing or selling securities of such issuer or from communicating such information to any other person\nunder circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nTherefore, Associate agrees that Associate will not trade in the securities of SC until such time and under such circumstances as\nit may do so under the applicable securities laws.\n16.\nSuccessors and Assigns. This Agreement shall be binding upon the parties hereto and their respective\nsuccessors and assigns and shall inure to the benefit of the parties hereto and their respective successors and assigns.\n17.\nEffect of Waiver. No failure or delay in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any\nother right, power or privilege hereunder.\n18.\nEntire Agreement. Unless specifically provided herein, this Agreement contains all the understandings and\nrepresentations between the Associate and SC pertaining to the subject matter hereof and supersedes all prior and\ncontemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such\nsubject matter.\n19.\nAmendment. No provision of this Agreement may be amended or modified unless such amendment or\nmodification is agreed to in writing and signed by the Associate and by a duly authorized officer of SC.\n20.\nSeverability. If any provision of this Agreement is not enforceable in whole or in part, the remaining provisions of\nthis Letter Agreement shall not be affected thereby.\n21.\nApplicability of Agreement. This Agreement shall apply to Confidential Information whether disclosed to or\naccessed by Associate prior to, on and/or after the Effective Date of this Agreement.\n22.\nCounterparts. This Agreement may be executed in multiple counterparts, each of which will be deemed an\noriginal, but all of which together shall constitute one and the same instrument. Delivery by facsimile of an executed counterpart\nof a signature page to this Agreement shall be as effective as delivery by traditional methods.\n23.\nAcknowledgment. Nothing in this Agreement shall be construed to in any way terminate, supersede,\nundermine, or otherwise modify the at-will status of the employment relationship between SC and the Associate, pursuant to\nwhich either SC or the Associate may terminate the employment relationship at any time, with or without cause, with or without\nnotice.\n24.\nGoverning Law and Venue. This Agreement shall be governed by, construed and enforced under the laws of\nthe State of Texas as it is applied to agreements entered into and to be performed entirely within such State. The parties hereby\nagree that any action arising out of this Agreement shall be brought in the state or federal courts located in Dallas County, Texas,\nfurther\nirrevocably submit to the exclusive jurisdiction of any such court and waive any objection that such party may now or hereafter\nhave to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an\ninconvenient court, and further agree not to plead or claim the same.\nIN WITNESS WHEREOF, each party has caused this Non-Disclosure Agreement to be executed by one of its duly\nauthorized representatives under seal as of the Effective Date.\nSantander Consumer USA Inc.\nBy: /s/ Mikenzie Sari\nName: Mikenzie Sari\nTitle: Chief Human Resources Officer\nDate: __7/23/2019______________\nAssociate\nBy: /s/ Fahmi Karam\nName: Fahmi Karam\nDate:___7/23/2019______________
+321c6f84e52d80795042afb653178a94.pdf	effective_date jurisdiction party term	EX-99.4 3 d441639dex994.htm CONFIDENTIALITY AGREEMENT\nExhibit 4\nCONFIDENTIALITY AGREEMENT\nOctober 18, 2012\nPrecision Castparts Corp.\n4650 SW Macadam Ave, Suite 300\nPortland, OR 97239\nAttn: Roger C. Cooke\nSenior Vice President and General Counsel\nLadies and Gentlemen:\nIn connection with Precision Castparts Corp.’s (“PCP”) evaluation of a possible transaction involving the stock (the “Transaction”) of\nTitanium Metals Corporation (the “Company”), each Party (as defined below) has requested information from the other Party. As a condition to each\nParty’s receipt of Confidential Information (as hereinafter defined), each Party agrees to treat the Confidential Information which is furnished to it or\nits Representatives (as defined below) by the other Party or any of its Representatives in accordance with the provisions of this Confidentiality\nAgreement (this “Agreement”) and to take or refrain from taking certain other actions herein set forth. PCP and the Company shall each be referred\nto herein as a “Party” and collectively as the “Parties”.\n1. Each Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage\nthat would result to such Party and its Affiliates (as defined below) if any of the Confidential Information is disclosed to any third party.\nEach Party hereby agrees that the Confidential Information will be used solely for the purpose of evaluating, negotiating and/or financing\nthe Transaction and that all of the Confidential Information will be kept confidential in accordance with the terms of this Agreement;\nprovided that any such information may be disclosed to each Party’s respective Representatives who are actually engaged in and need to\nknow the Confidential Information for the purpose of evaluating, negotiating and/or financing the Transaction, who have been informed\nof the confidential nature of the Confidential Information, and who have been advised by such Party that such information is to be kept\nconfidential and shall not be used for any purpose other than the evaluation, negotiation and/or financing of the Transaction. Each Party\nagrees that it shall be responsible for any breach of this Agreement by any of its respective Representatives. Notwithstanding the\nforegoing, the Company acknowledges and agrees that all Confidential Information that has been provided to PCP or any of its\nRepresentatives prior to the date hereof in connection with or in preparation for any notices or filings with any European governmental\nagencies has been provided by the Company or its Representatives pursuant to this Agreement and, subject to the following sentence,\nshall be deemed Confidential Information for purposes of this Agreement. The Company further acknowledges and agrees that certain\nConfidential Information, as described on Schedule A to this Agreement, has been provided on a confidential basis by PCP or its\nRepresentatives to certain European governmental agencies, and, notwithstanding anything to the contrary in this Agreement, the\nprovision of such Confidential Information is expressly permitted hereby, shall not be deemed to be a breach of this Agreement and none\nof PCP, any of its Affiliates or any of its or their respective Representatives shall have any liability to the Company, any of its Affiliates\nor any of its or their respective Representatives in connection therewith.\n2. The term “Representatives” includes, as it applies to any party, such party’s directors, officers, employees, agents and Advisors (the term\n“Advisors” shall be defined herein to include, without limitation, advisors, financial advisors, investment bankers, in-house and outside\nattorneys, accountants, consultants, analysts, lenders and other potential sources of debt financing), if and only to the extent that such\npersons have actually been provided Confidential Information. The term “Confidential Information” means (i) all information furnished\nby the disclosing Party or any of its Representatives, whether furnished before or after the date hereof, whether oral or written, and\nregardless of the manner in which it is furnished, (ii) all analyses, compilations, forecasts, studies, interpretations or other documents\nprepared by receiving Party or its Representatives in connection with receiving Party’s evaluation of the Transaction (including, without\nlimitation, such that reflects or is based upon, in whole or part, the information furnished to receiving Party or its Representatives\npursuant hereto), and (iii) the fact that discussions or negotiations are taking place concerning a possible Transaction, and any of the\nterms, conditions or other facts with respect to any such possible Transaction, including the status thereof. The term “Confidential\nInformation” does not include any information which at the time of disclosure or thereafter is generally available to and known by the\npublic (other than as a result of its disclosure by receiving Party or its Representatives in breach of this Agreement). The Confidential\nInformation shall remain the property of the disclosing Party. No rights to use, license, or otherwise exploit the Confidential Information\nare granted to receiving Party, by implication or otherwise. Receiving Party will not by virtue of disclosing Party’s disclosure of the\nConfidential Information and/or receiving Party’s use of the Confidential Information acquire any rights with respect thereto, all of\nwhich rights shall remain exclusively with the disclosing Party.\n3. Given the nature of the Confidential Information and the Parties’ current discussions, each Party would be irreparably damaged by any\nunauthorized disclosure or use of any Confidential Information or of the Parties’ discussions or by any breach of this Agreement by the\nother Party. Without prejudice to the rights and remedies otherwise available to each Party, both Parties therefore, agree that each Party\nshall be entitled, without the requirement of posting a bond or other security, to equitable relief, including an injunction or specific\nperformance, in the event of any breach or threatened breach of the provisions of this Agreement by the other Party. Such remedies shall\nnot be deemed to be exclusive remedies but shall be in addition to all other remedies available at law or equity. If a court of competent\njurisdiction determines that any Party has breached this Agreement, then the breaching Party shall be liable and pay to the non-breaching\nParty the reasonable costs and expenses (including attorney’s fees) incurred by the non-breaching Party in connection with such\nlitigation, including any appeal therefrom.\n4. In the event either Party or any of its Representatives become legally compelled (by deposition, interrogatory, request for documents,\nsubpoena, civil investigation, demand, order or other legal process) to disclose any of the contents of the Confidential Information, or\neither the fact that discussions or negotiations are taking place concerning a possible Transaction, or any of the terms, conditions or other\nfacts with respect to any such possible Transaction, including the status thereof, each Party agrees that the other\n2\nParty and its Representatives may do so without liability, provided such Party (i) promptly notifies the other Party prior to any such\ndisclosure to the extent legally permissible and practicable, (ii) cooperates with the other Party in any attempts it may make to obtain a\nprotective order or other appropriate assurance that confidential treatment will be afforded the Confidential Information, and (iii) if no\nprotective order is obtained and disclosure is required, (a) furnishes only that portion of the Confidential Information that, based on the\nadvice of legal counsel, such Party is legally compelled to disclose, and (b) takes all reasonable measures to obtain reliable assurance\nthat confidential treatment will be accorded the Confidential Information.\n5. The Company may elect at any time to terminate further access by PCP to the Confidential Information. At any time either Party\ndetermines not to proceed with the possible Transaction, such Party will promptly notify the other Party. Following any request by either\nParty or any of its Representatives, the other Party agrees (i) to promptly redeliver all written Confidential Information and any other\nwritten material containing or reflecting any of the Confidential Information in such Party’s possession or its Representatives’\npossession, whether in hard-copy or machine readable form and including any copies thereof and (ii) all computer records, documents,\nmemoranda, notes and other writings whatsoever prepared by such Party or its Representatives based on the Confidential Information\nwill be destroyed; provided, however, that such Party and its Representatives shall be entitled to retain copies of any computer records\nand files containing any Confidential Information that have been created pursuant to automatic electronic archiving and/or back-up\nprocedures until such computer records and files have been deleted in the ordinary course, so long as such copies of Confidential\nInformation are not accessed (except to the extent required by law) and such Confidential Information shall continue to be bound by the\nobligations of confidentiality and other obligations as provided herein. Notwithstanding the foregoing, each Party may maintain an\narchival copy of such Confidential Information under the direct control of the office of its or their General Counsel or compliance officer\nfor legal compliance purposes, which copy shall remain bound by the obligations of confidentiality herein and shall not be subject to use\nor access by a person not employed by such General Counsel’s office or compliance office, as applicable, and which copy may be\nutilized solely to the extent necessary to permit such Party or its Representatives, as applicable, to comply, subject to the terms and\nconditions of this Agreement, with its required obligations. In addition, neither Party nor its Representatives shall be obligated to comply\nwith a request to return and/or destroy Confidential Information that is incorporated into any of their respective board of director or\ncommittee minutes or that is required to be retained by any of them pursuant to applicable law, including but not limited to the Sarbanes-\nOxley Act or a professional regulatory body or industry regulation, provided that any such retained Confidential Information shall be\ntreated by such Party and/or its applicable Representatives in a confidential manner using at least the same degree of care as it provides\nto protect its own similar confidential information (and in any event not less than reasonable care consistent with industry best practices),\nwhich copies shall remain bound by the obligations of confidentiality hereof.\n6. Each Party understands and acknowledges that neither the other Party nor any of its Representatives makes any representation or\nwarranty, express or implied, as to the accuracy or completeness of the Confidential Information. Each Party agrees that neither the other\nParty nor any of its Representatives shall have any liability to such Party or any\n3\nof its Representatives relating to or resulting from such Party’s or its Representatives’ use of the Confidential Information or any errors\ntherein or omissions therefrom. PCP further understands and agrees that (i) the Company (a) shall be free to conduct the process for a\nTransaction as it in its sole discretion shall determine (including changing or terminating such process, providing any information to any\nother Person, negotiating with any other Person or entering into a definitive agreement with any other Person with respect to any\ntransaction, in each case, at any time and without notice to PCP or any other Person) and (b) shall be free at its sole discretion to at any\ntime to accept or reject any proposal relating to the Company for any reason without notice to PCP or any other Person, and (ii) PCP\nshall have no claim against the Company or any of its representatives in connection with any of the foregoing.\n7. For a period of one (1) year after the date hereof, each Party agrees not to solicit for employment any of the current employees of the\nother Party to whom the first Party had been directly or indirectly introduced or otherwise had initial contact with as a result of its\nconsideration of a Transaction, so long as they are employed by the other Party; provided that this Agreement shall not prohibit either\nParty or any of its Representatives from (x) hiring any such employee who responds to any general solicitation performed by the such\nParty or any of its Representatives that is not specifically targeted at such persons, (y) soliciting any employee of the other Party\nfollowing the consummation of a Transaction or any other potential similar transaction or (z) responding to any person who initiates\ncontact with such Party regarding potential employment.\n8. Each Party hereby represents and warrants that such Party is not bound by the terms of a confidentiality agreement or other agreement\nwith a third party that would conflict with any of its obligations under this Agreement.\n9. In accepting and reviewing the Confidential Information, PCP represents and warrants that it is acting solely for itself. Subject to\nSection 13 of this Agreement, PCP further represents and warrants that PCP has not discussed and hereby covenants that unless PCP has\nfirst received the written consent of the Company, PCP will not discuss or share with any third party other than any of PCP’s\nRepresentatives any aspect of the Confidential Information or the fact that the Company is interested in a proposed Transaction, either on\nits own or in conjunction with any other interested Person in violation of this Agreement. PCP acknowledges that the effect of this\ncovenant is that without the full disclosure to and the written consent of the Company, PCP cannot act as agent, partner, co-participant or\nco-venturer for any third party or third parties with respect to a proposed Transaction. In order to obtain the consent of the Company,\nwhich the Company is entitled to withhold in its sole discretion, PCP shall notify the Company of the identity of each Person for whom\nor with whom PCP had considered pursuing a possible Transaction, and the nature and interest PCP and each such Person would have in\nrespect of such possible Transaction.\n10. Each Party agrees that, unless and until a binding agreement is entered into between the Company and PCP with respect to the\nTransaction, (a) no contract or agreement providing for any Transaction shall be deemed to exist, (b) no obligation, commitment or\nundertaking of any kind whatsoever with respect to any Transaction shall be implied and (c) neither the Company nor PCP will be under\nany legal obligation of any kind whatsoever with respect to the Transaction by virtue of this Agreement or any other\n4\nwritten or oral expression, except, in the case of this Agreement, with respect to the matters specifically agreed to herein. Except as\nprovided in Paragraphs 8, 9, and 12 herein, nothing contained in any discussions between PCP and the Company or in any Confidential\nInformation shall be deemed to constitute a representation or warranty. Except for the matters set forth in this Agreement or in any such\nbinding agreement, neither Party shall be entitled to rely on any statement, promise, agreement or understanding, whether oral or written,\nany custom, usage of trade, course of dealing or conduct.\n11. Except as provided in Section 13 of this Agreement, PCP agrees that all (i) communications regarding the Transaction, (ii) requests for\nadditional Confidential Information, (iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding\nprocedures, will be submitted or directed only to Andy Nace at anace@valhi.net or any other representative of the Company’s general\ncounsel office designated from time to time by the Company in writing. Except as provided in Section 13, without the other Party’s prior\nwritten consent, neither Party shall, and each Party shall direct its Representatives not to, make any contact of any nature regarding a\nproposed Transaction (including inquiries or requests concerning Confidential Information) with any supplier, customer, labor union,\nlandlord, lessor, bank or other lender of or to the other Party or any of their Affiliates.\n12. Except as provided in Section 13 of this Agreement, in consideration for the Confidential Information of the Company being furnished to\nPCP under this Agreement, PCP agrees that, for a period of twelve (12) months after the date hereof (the “Standstill Period”), PCP shall\nnot and shall cause its Affiliates not to, and neither PCP nor such affiliate shall assist or encourage others to directly or indirectly, acting\nalone or in concert with others, in each case unless specifically requested in writing in advance by the Company:\n(a)\nacquire or agree, offer, seek or propose to acquire ownership (including, but not limited to, beneficial ownership as defined in\nRule 13d-3 under the Securities Exchange Act of 1934, as amended) of any shares or any class of voting securities issued by the\nCompany, or any rights or options to acquire such ownership (including from a third party);\n(b) offer, seek or propose a merger, consolidation or similar transaction involving the Company;\n(c)\noffer, seek or propose to purchase, lease or otherwise acquire all or a substantial portion of the assets of the Company;\n(d) seek or propose to influence or control the management or policies of the Company or obtain representation on the Company’s\nBoard of Directors, or solicit or participate in the solicitation of any proxies or consents with respect to the securities of the\nCompany or request a list of the Company’s stockholders; or\n(e) publicly seek or request permission to do any of the foregoing or seek any permission to make any public announcement with\nrespect to any of the foregoing.\n5\nPCP also agrees during the term of this Agreement not to publicly request the Company or any of its Representatives, directly or\nindirectly, to amend or waive any provision of this paragraph (including this sentence). Nothing herein shall preclude PCP’s ability to\nadvise the Company, its Board of Directors, or its legal and financial advisors on a confidential, nonpublic basis, of the terms and\nconditions of any proposed Transaction PCP is currently considering. The obligations set forth in this Paragraph 12 shall terminate in the\nevent that, in absence of any breach by PCP of its obligations under this Agreement, (i) a Person, entity or group unaffiliated with PCP\nhas commenced a bona fide tender or exchange offer for at least a majority of the Company’s outstanding shares, or (ii) the Company\nenters into a definitive agreement with a third party for the acquisition of a majority of the Company’s shares or the sale of all or\nsubstantially all of the Company’s assets.\nNotwithstanding anything in this Agreement to the contrary, following the expiration of the Standstill Period, PCP and its affiliates shall\nnot be prohibited by this Agreement from (i) taking any of the actions prohibited under this Section 12 during the Standstill Period,\nincluding without limitation, acquiring or offering to acquire any class of voting securities issued by the Company through a tender offer\nor otherwise, (ii) using the Confidential Information obtained pursuant to this Agreement specifically for the purpose of taking any such\naction contemplated pursuant to this Section and (iii) disclosing, to the extent required by applicable law as determined in good faith by\nPCP upon the advice of counsel, in any tender offer documents filed or furnished with the Securities and Exchange Commission, any\nConfidential Information received pursuant to this Agreement.\n13. Notwithstanding anything to the contrary in this Agreement, the Company acknowledges that PCP and certain of its Representatives\nhave had discussions and negotiations with Contran Corporation and certain of its affiliates and Representatives (collectively, “Contran”)\nregarding a potential Transaction.\n14. Notwithstanding anything to the contrary in this Agreement, this Agreement shall not prohibit any disclosure by either Party of the fact\nthat discussions or negotiations are taking place concerning a possible Transaction or of information with respect to terms, conditions or\nother facts with respect to a possible Transaction to the extent required by securities laws or stock exchange rules as determined in good\nfaith by such Party upon the advice of counsel. In addition, the Company may disclose the fact that discussions or negotiations are taking\nplace concerning a possible Transaction, or information with respect to terms, conditions or other facts with respect to a possible\nTransaction, in the context of any “market check” performed by the Company, provided that PCP’s identity (and any description of PCP\nor its business which could allow a Person to reasonably determine PCP’s identity), and any proposed price in any possible Transaction,\nshall remain strictly confidential.\n15. Each Party hereby acknowledges that it is aware, and will advise each of their respective Representatives who are informed as to the\nmatters that are the subject of this Agreement, that the United States securities laws restrict any Person who or that has received from an\nissuer material, non-public information from purchasing or selling securities of such issuer or from communicating such information to\nany other Person under circumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities.\n6\n16. Notwithstanding anything contained herein to the contrary in this Agreement, nothing contained herein shall be defined, construed, or\notherwise interpreted to limit or restrict any Party’s or any of its respective Representatives’, or any of its or their respective affiliates’,\nrights to engage in their respective businesses in the ordinary course, including ordinary course communications and commercial\ntransactions between the Parties and their respective Representatives.\n17. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware without regard to conflict of laws\nprinciples. Each Party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of\nDelaware and of the United States of America located in the State of Delaware for any action, suit or proceeding arising out of or\nrelating to this Agreement and the transactions contemplated hereby, and each Party agrees not to commence any action, suit, or\nproceeding relating thereto except in such courts, and further agrees that any service of any process, summons, notice or document by\nUS registered mail or internationally recognized carrier to such Party’s address set forth above shall be effective service of process in any\naction, suit or proceeding brought against such Party in any such court. Each Party irrevocably and unconditionally waives any objection\nto the laying of venue of any action, suit or proceeding arising out of this Agreement or transactions contemplated hereby in the courts of\nthe State of Delaware or the United States of America located in the State of Delaware and hereby further irrevocably and\nunconditionally waives and agrees not to plead or claim that any such action, suit or proceeding brought in any such court has been\nbrought in an inconvenient forum.\n18. The provisions of this Agreement shall be binding solely upon and inure to the benefit of the Parties hereto and their respective\nsuccessors and permitted assigns, expressly including any successor to or acquirer of the Company. Neither this Agreement nor any of\nthe rights and/or obligations hereunder may be assigned by either Party without the prior written consent of the other Party, and any\nattempted assignment or transfer by either Party not in accordance herewith shall be null and void ab initio.\n19. This Agreement represents the entire understanding and agreement of the Parties and may be modified only by a separate written\nagreement executed by each Party expressly modifying this Agreement. This Agreement supersedes and cancels any and all prior\nagreements between the Parties, express or implied, relating to the Transaction.\n20. In the event that any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in\npart, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent\npermitted by law, and such invalid or unenforceable term or provision shall be deemed replaced by a term or provision that is valid and\nenforceable and that comes closest to expressing the Parties’ intention with respect to such invalid or unenforceable term or provision.\n21. The failure or refusal of either Party to insist upon strict performance of any provision of this Agreement or to exercise any right in any\none or more instances or circumstances shall not be construed as a waiver or relinquishment of such provision or right, nor shall such\nfailures or refusals be deemed a custom or practice contrary to such provision or right.\n7\n22. For purposes of this Agreement, except as otherwise defined herein: (a) “Affiliate” shall mean, as to any Person, any other Person which,\ndirectly or indirectly, controls, or is controlled by, or is under common control with, such Person (for this purpose, “control” (including,\nwith its correlative meanings, “controlled by” and “under common control with”) shall mean the possession, directly or indirectly, of\nthe power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or\npartnership or other ownership interests, by contract or otherwise); and (b) “Person” shall be broadly interpreted to include any\nindividual, corporation, company, partnership, limited liability company, trust or other group or entity (including any court, government\nor agency, commission, board or authority thereof, federal, state or local, domestic, foreign or multinational).\n23. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed an original, but such\ncounterparts shall together constitute one and the same Agreement.\n24. This Agreement shall terminate upon the earlier to occur of (i) the closing of the Transaction contemplated by this Agreement, and\n(ii) twenty-four (24) months after the date hereof, after which time this Agreement and the obligations of the Parties hereunder shall have\nno further force or effect; provided, however, that with respect to Confidential Information that is stamped or specifically identified on\nthe master index at the time of delivery as “Specified Sensitive Information”, the receiving Party’s obligations of confidentiality pursuant\nto this Agreement shall survive indefinitely, so long as neither the Company nor any of its Representatives provides to PCP or any of its\nRepresentatives any such “Specified Sensitive Information” without PCP’s prior written consent.\n8\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned a duplicate copy of this Agreement.\nSincerely,\nTITANIUM METALS CORPORATION\nBy: /s/ James W. Brown\nName: James W. Brown\nTitle: Vice President and Chief Financial Officer\nACCEPTED AS OF THE DATE FIRST\nWRITTEN ABOVE:\nPRECISION CASTPARTS CORP.\nBy: /s/ Roger A. Cooke\nName: Roger A. Cooke\nTitle: Senior Vice President and General Counsel\nSchedule A to Confidentiality Agreement\nCompanies\nCountry\nRole\nTurnover (million EUR)\nYear of\nTurnover\nWorld\nCommunity\nTitanium Metals Corporation\nUSA\nT\n751\n261\n2011\nThe Transaction\nThe transaction concerns the proposed acquisition of control of Titanium Metals Corporation by Precision Castparts through a public tender offer,\nwhich is to be filed with the US Stock Exchange Authority. The proposed transaction meets the turnover thresholds set out in Article 1(2) of the EC\nMerger Regulation and therefore constitutes a concentration which has a Community dimension.\nT = Target\n1\n1	EX-99.4 3 d441639dex994.htm CONFIDENTIALITY AGREEMENT\nExhibit 4\nCONFIDENTIALITY AGREEMENT\nOctober 18, 2012\nPrecision Castparts Corp.\n4650 SW Macadam Ave, Suite 300\nPortland, OR 97239\nAttn: Roger C. Cooke\nSenior Vice President and General Counsel\nLadies and Gentlemen:\nIn connection with Precision Castparts Corp.’s (“PCP”) evaluation of a possible transaction involving the stock (the “Transaction”) of\nTitanium Metals Corporation (the “Company”), each Party (as defined below) has requested information from the other Party. As a condition to each\nParty’s receipt of Confidential Information (as hereinafter defined), each Party agrees to treat the Confidential Information which is furnished to it or\nits Representatives (as defined below) by the other Party or any of its Representatives in accordance with the provisions of this Confidentiality\nAgreement (this “Agreement”) and to take or refrain from taking certain other actions herein set forth. PCP and the Company shall each be referred\nto herein as a “Party” and collectively as the “Parties”.\n \n1. Each Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage\nthat would result to such Party and its Affiliates (as defined below) if any of the Confidential Information is disclosed to any third party.\nEach Party hereby agrees that the Confidential Information will be used solely for the purpose of evaluating, negotiating and/or financing\nthe Transaction and that all of the Confidential Information will be kept confidential in accordance with the terms of this Agreement;\nprovided that any such information may be disclosed to each Party’s respective Representatives who are actually engaged in and need to\nknow the Confidential Information for the purpose of evaluating, negotiating and/or financing the Transaction, who have been informed\nof the confidential nature of the Confidential Information, and who have been advised by such Party that such information is to be kept\nconfidential and shall not be used for any purpose other than the evaluation, negotiation and/or financing of the Transaction. Each Party\nagrees that it shall be responsible for any breach of this Agreement by any of its respective Representatives. Notwithstanding the\nforegoing, the Company acknowledges and agrees that all Confidential Information that has been provided to PCP or any of its\nRepresentatives prior to the date hereof in connection with or in preparation for any notices or filings with any European governmental\nagencies has been provided by the Company or its Representatives pursuant to this Agreement and, subject to the following sentence,\nshall be deemed Confidential Information for purposes of this Agreement. The Company further acknowledges and agrees that certain\nConfidential Information, as described on Schedule A to this Agreement, has been provided on a confidential basis by PCP or its\nRepresentatives to certain European governmental agencies, and, notwithstanding anything to the contrary in this Agreement, the\nprovision of such Confidential Information is expressly permitted hereby, shall not be deemed to be a breach of this Agreement and none\nof PCP, any of its Affiliates or any of its or their respective Representatives shall have any liability to the Company, any of its Affiliates\nor any of its or their respective Representatives in connection therewith.\nThe term “Representatives” includes, as it applies to any party, such party’s directors, officers, employees, agents and Advisors (the term\n“Advisors” shall be defined herein to include, without limitation, advisors, financial advisors, investment bankers, in-house and outside\nattorneys, accountants, consultants, analysts, lenders and other potential sources of debt financing), if and only to the extent that such\npersons have actually been provided Confidential Information. The term “Confidential Information” means (i) all information furnished\nby the disclosing Party or any of its Representatives, whether furnished before or after the date hereof, whether oral or written, and\nregardless of the manner in which it is furnished, (ii) all analyses, compilations, forecasts, studies, interpretations or other documents\nprepared by receiving Party or its Representatives in connection with receiving Party’s evaluation of the Transaction (including, without\nlimitation, such that reflects or is based upon, in whole or part, the information furnished to receiving Party or its Representatives\npursuant hereto), and (iii) the fact that discussions or negotiations are taking place concerning a possible Transaction, and any of the\nterms, conditions or other facts with respect to any such possible Transaction, including the status thereof. The term “Confidential\nInformation” does not include any information which at the time of disclosure or thereafter is generally available to and known by the\npublic (other than as a result of its disclosure by receiving Party or its Representatives in breach of this Agreement). The Confidential\nInformation shall remain the property of the disclosing Party. No rights to use, license, or otherwise exploit the Confidential Information\nare granted to receiving Party, by implication or otherwise. Receiving Party will not by virtue of disclosing Party’s disclosure of the\nConfidential Information and/or receiving Party’s use of the Confidential Information acquire any rights with respect thereto, all of\nwhich rights shall remain exclusively with the disclosing Party.\nGiven the nature of the Confidential Information and the Parties’ current discussions, each Party would be irreparably damaged by any\nunauthorized disclosure or use of any Confidential Information or of the Parties’ discussions or by any breach of this Agreement by the\nother Party. Without prejudice to the rights and remedies otherwise available to each Party, both Parties therefore, agree that each Party\nshall be entitled, without the requirement of posting a bond or other security, to equitable relief, including an injunction or specific\nperformance, in the event of any breach or threatened breach of the provisions of this Agreement by the other Party. Such remedies shall\nnot be deemed to be exclusive remedies but shall be in addition to all other remedies available at law or equity. If a court of competent\njurisdiction determines that any Party has breached this Agreement, then the breaching Party shall be liable and pay to the non-breaching\nParty the reasonable costs and expenses (including attorney’s fees) incurred by the non-breaching Party in connection with such\nlitigation, including any appeal therefrom.\nIn the event either Party or any of its Representatives become legally compelled (by deposition, interrogatory, request for documents,\nsubpoena, civil investigation, demand, order or other legal process) to disclose any of the contents of the Confidential Information, or\neither the fact that discussions or negotiations are taking place concerning a possible Transaction, or any of the terms, conditions or other\nfacts with respect to any such possible Transaction, including the status thereof, each Party agrees that the other\n2\nParty and its Representatives may do so without liability, provided such Party (i) promptly notifies the other Party prior to any such\ndisclosure to the extent legally permissible and practicable, (ii) cooperates with the other Party in any attempts it may make to obtain a\nprotective order or other appropriate assurance that confidential treatment will be afforded the Confidential Information, and (iii) if no\nprotective order is obtained and disclosure is required, (a) furnishes only that portion of the Confidential Information that, based on the\nadvice of legal counsel, such Party is legally compelled to disclose, and (b) takes all reasonable measures to obtain reliable assurance\nthat confidential treatment will be accorded the Confidential Information.\nThe Company may elect at any time to terminate further access by PCP to the Confidential Information. At any time either Party\ndetermines not to proceed with the possible Transaction, such Party will promptly notify the other Party. Following any request by either\nParty or any of its Representatives, the other Party agrees (i) to promptly redeliver all written Confidential Information and any other\nwritten material containing or reflecting any of the Confidential Information in such Party’s possession or its Representatives’\npossession, whether in hard-copy or machine readable form and including any copies thereof and (ii) all computer records, documents,\nmemoranda, notes and other writings whatsoever prepared by such Party or its Representatives based on the Confidential Information\nwill be destroyed; provided, however, that such Party and its Representatives shall be entitled to retain copies of any computer records\nand files containing any Confidential Information that have been created pursuant to automatic electronic archiving and/or back-up\nprocedures until such computer records and files have been deleted in the ordinary course, so long as such copies of Confidential\nInformation are not accessed (except to the extent required by law) and such Confidential Information shall continue to be bound by the\nobligations of confidentiality and other obligations as provided herein. Notwithstanding the foregoing, each Party may maintain an\narchival copy of such Confidential Information under the direct control of the office of its or their General Counsel or compliance officer\nfor legal compliance purposes, which copy shall remain bound by the obligations of confidentiality herein and shall not be subject to use\nor access by a person not employed by such General Counsel’s office or compliance office, as applicable, and which copy may be\nutilized solely to the extent necessary to permit such Party or its Representatives, as applicable, to comply, subject to the terms and\nconditions of this Agreement, with its required obligations. In addition, neither Party nor its Representatives shall be obligated to comply\nwith a request to return and/or destroy Confidential Information that is incorporated into any of their respective board of director or\ncommittee minutes or that is required to be retained by any of them pursuant to applicable law, including but not limited to the Sarbanes-\nOxley Act or a professional regulatory body or industry regulation, provided that any such retained Confidential Information shall be\ntreated by such Party and/or its applicable Representatives in a confidential manner using at least the same degree of care as it provides\nto protect its own similar confidential information (and in any event not less than reasonable care consistent with industry best practices),\nwhich copies shall remain bound by the obligations of confidentiality hereof.\nEach Party understands and acknowledges that neither the other Party nor any of its Representatives makes any representation or\nwarranty, express or implied, as to the accuracy or completeness of the Confidential Information. Each Party agrees that neither the other\nParty nor any of its Representatives shall have any liability to such Party or any\n3\n10. of its Representatives relating to or resulting from such Party’s or its Representatives’ use of the Confidential Information or any errors\ntherein or omissions therefrom. PCP further understands and agrees that (i) the Company (a) shall be free to conduct the process for a\nTransaction as it in its sole discretion shall determine (including changing or terminating such process, providing any information to any\nother Person, negotiating with any other Person or entering into a definitive agreement with any other Person with respect to any\ntransaction, in each case, at any time and without notice to PCP or any other Person) and (b) shall be free at its sole discretion to at any\ntime to accept or reject any proposal relating to the Company for any reason without notice to PCP or any other Person, and (ii) PCP\nshall have no claim against the Company or any of its representatives in connection with any of the foregoing.\nFor a period of one (1) year after the date hereof, each Party agrees not to solicit for employment any of the current employees of the\nother Party to whom the first Party had been directly or indirectly introduced or otherwise had initial contact with as a result of its\nconsideration of a Transaction, so long as they are employed by the other Party; provided that this Agreement shall not prohibit either\nParty or any of its Representatives from (x) hiring any such employee who responds to any general solicitation performed by the such\nParty or any of its Representatives that is not specifically targeted at such persons, (y) soliciting any employee of the other Party\nfollowing the consummation of a Transaction or any other potential similar transaction or (z) responding to any person who initiates\ncontact with such Party regarding potential employment.\nEach Party hereby represents and warrants that such Party is not bound by the terms of a confidentiality agreement or other agreement\nwith a third party that would conflict with any of its obligations under this Agreement.\nIn accepting and reviewing the Confidential Information, PCP represents and warrants that it is acting solely for itself. Subject to\nSection 13 of this Agreement, PCP further represents and warrants that PCP has not discussed and hereby covenants that unless PCP has\nfirst received the written consent of the Company, PCP will not discuss or share with any third party other than any of PCP’s\nRepresentatives any aspect of the Confidential Information or the fact that the Company is interested in a proposed Transaction, either on\nits own or in conjunction with any other interested Person in violation of this Agreement. PCP acknowledges that the effect of this\ncovenant is that without the full disclosure to and the written consent of the Company, PCP cannot act as agent, partner, co-participant or\nco-venturer for any third party or third parties with respect to a proposed Transaction. In order to obtain the consent of the Company,\nwhich the Company is entitled to withhold in its sole discretion, PCP shall notify the Company of the identity of each Person for whom\nor with whom PCP had considered pursuing a possible Transaction, and the nature and interest PCP and each such Person would have in\nrespect of such possible Transaction.\nEach Party agrees that, unless and until a binding agreement is entered into between the Company and PCP with respect to the\nTransaction, (a) no contract or agreement providing for any Transaction shall be deemed to exist, (b) no obligation, commitment or\nundertaking of any kind whatsoever with respect to any Transaction shall be implied and (c) neither the Company nor PCP will be under\nany legal obligation of any kind whatsoever with respect to the Transaction by virtue of this Agreement or any other\n4\n11. 12. written or oral expression, except, in the case of this Agreement, with respect to the matters specifically agreed to herein. Except as\nprovided in Paragraphs 8, 9, and 12 herein, nothing contained in any discussions between PCP and the Company or in any Confidential\nInformation shall be deemed to constitute a representation or warranty. Except for the matters set forth in this Agreement or in any such\nbinding agreement, neither Party shall be entitled to rely on any statement, promise, agreement or understanding, whether oral or written,\nany custom, usage of trade, course of dealing or conduct.\nExcept as provided in Section 13 of this Agreement, PCP agrees that all (i) communications regarding the Transaction, (ii) requests for\nadditional Confidential Information, (iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding\nprocedures, will be submitted or directed only to Andy Nace at anace@valhi.net or any other representative of the Company’s general\ncounsel office designated from time to time by the Company in writing. Except as provided in Section 13, without the other Party’s prior\nwritten consent, neither Party shall, and each Party shall direct its Representatives not to, make any contact of any nature regarding a\nproposed Transaction (including inquiries or requests concerning Confidential Information) with any supplier, customer, labor union,\nlandlord, lessor, bank or other lender of or to the other Party or any of their Affiliates.\nExcept as provided in Section 13 of this Agreement, in consideration for the Confidential Information of the Company being furnished to\nPCP under this Agreement, PCP agrees that, for a period of twelve (12) months after the date hereof (the “Standstill Period”), PCP shall\nnot and shall cause its Affiliates not to, and neither PCP nor such affiliate shall assist or encourage others to directly or indirectly, acting\nalone or in concert with others, in each case unless specifically requested in writing in advance by the Company:\n(a) acquire or agree, offer, seek or propose to acquire ownership (including, but not limited to, beneficial ownership as defined in\nRule 13d-3 under the Securities Exchange Act of 1934, as amended) of any shares or any class of voting securities issued by the\nCompany, or any rights or options to acquire such ownership (including from a third party);\n(b) offer, seek or propose a merger, consolidation or similar transaction involving the Company;\n(© offer, seek or propose to purchase, lease or otherwise acquire all or a substantial portion of the assets of the Company;\n(d) seek or propose to influence or control the management or policies of the Company or obtain representation on the Company’s\nBoard of Directors, or solicit or participate in the solicitation of any proxies or consents with respect to the securities of the\nCompany or request a list of the Company’s stockholders; or\n(e) publicly seek or request permission to do any of the foregoing or seek any permission to make any public announcement with\nrespect to any of the foregoing.\n13. 14. 15. PCP also agrees during the term of this Agreement not to publicly request the Company or any of its Representatives, directly or\nindirectly, to amend or waive any provision of this paragraph (including this sentence). Nothing herein shall preclude PCP’s ability to\nadvise the Company, its Board of Directors, or its legal and financial advisors on a confidential, nonpublic basis, of the terms and\nconditions of any proposed Transaction PCP is currently considering. The obligations set forth in this Paragraph 12 shall terminate in the\nevent that, in absence of any breach by PCP of its obligations under this Agreement, (i) a Person, entity or group unaffiliated with PCP\nhas commenced a bona fide tender or exchange offer for at least a majority of the Company’s outstanding shares, or (ii) the Company\nenters into a definitive agreement with a third party for the acquisition of a majority of the Company’s shares or the sale of all or\nsubstantially all of the Company’s assets.\nNotwithstanding anything in this Agreement to the contrary, following the expiration of the Standstill Period, PCP and its affiliates shall\nnot be prohibited by this Agreement from (i) taking any of the actions prohibited under this Section 12 during the Standstill Period,\nincluding without limitation, acquiring or offering to acquire any class of voting securities issued by the Company through a tender offer\nor otherwise, (ii) using the Confidential Information obtained pursuant to this Agreement specifically for the purpose of taking any such\naction contemplated pursuant to this Section and (iii) disclosing, to the extent required by applicable law as determined in good faith by\nPCP upon the advice of counsel, in any tender offer documents filed or furnished with the Securities and Exchange Commission, any\nConfidential Information received pursuant to this Agreement.\nNotwithstanding anything to the contrary in this Agreement, the Company acknowledges that PCP and certain of its Representatives\nhave had discussions and negotiations with Contran Corporation and certain of its affiliates and Representatives (collectively, “Contran”)\nregarding a potential Transaction.\nNotwithstanding anything to the contrary in this Agreement, this Agreement shall not prohibit any disclosure by either Party of the fact\nthat discussions or negotiations are taking place concerning a possible Transaction or of information with respect to terms, conditions or\nother facts with respect to a possible Transaction to the extent required by securities laws or stock exchange rules as determined in good\nfaith by such Party upon the advice of counsel. In addition, the Company may disclose the fact that discussions or negotiations are taking\nplace concerning a possible Transaction, or information with respect to terms, conditions or other facts with respect to a possible\nTransaction, in the context of any “market check” performed by the Company, provided that PCP’s identity (and any description of PCP\nor its business which could allow a Person to reasonably determine PCP’s identity), and any proposed price in any possible Transaction,\nshall remain strictly confidential.\nEach Party hereby acknowledges that it is aware, and will advise each of their respective Representatives who are informed as to the\nmatters that are the subject of this Agreement, that the United States securities laws restrict any Person who or that has received from an\nissuer material, non-public information from purchasing or selling securities of such issuer or from communicating such information to\nany other Person under circumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities.\n6\n16. 17. 18. 19. 20. 21. Notwithstanding anything contained herein to the contrary in this Agreement, nothing contained herein shall be defined, construed, or\notherwise interpreted to limit or restrict any Party’s or any of its respective Representatives’, or any of its or their respective affiliates’,\nrights to engage in their respective businesses in the ordinary course, including ordinary course communications and commercial\ntransactions between the Parties and their respective Representatives.\nThis Agreement shall be governed and construed in accordance with the laws of the State of Delaware without regard to conflict of laws\nprinciples. Each Party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of\nDelaware and of the United States of America located in the State of Delaware for any action, suit or proceeding arising out of or\nrelating to this Agreement and the transactions contemplated hereby, and each Party agrees not to commence any action, suit, or\nproceeding relating thereto except in such courts, and further agrees that any service of any process, summons, notice or document by\nUS registered mail or internationally recognized carrier to such Party’s address set forth above shall be effective service of process in any\naction, suit or proceeding brought against such Party in any such court. Each Party irrevocably and unconditionally waives any objection\nto the laying of venue of any action, suit or proceeding arising out of this Agreement or transactions contemplated hereby in the courts of\nthe State of Delaware or the United States of America located in the State of Delaware and hereby further irrevocably and\nunconditionally waives and agrees not to plead or claim that any such action, suit or proceeding brought in any such court has been\nbrought in an inconvenient forum.\nThe provisions of this Agreement shall be binding solely upon and inure to the benefit of the Parties hereto and their respective\nsuccessors and permitted assigns, expressly including any successor to or acquirer of the Company. Neither this Agreement nor any of\nthe rights and/or obligations hereunder may be assigned by either Party without the prior written consent of the other Party, and any\nattempted assignment or transfer by either Party not in accordance herewith shall be null and void ab initio.\nThis Agreement represents the entire understanding and agreement of the Parties and may be modified only by a separate written\nagreement executed by each Party expressly modifying this Agreement. This Agreement supersedes and cancels any and all prior\nagreements between the Parties, express or implied, relating to the Transaction.\nIn the event that any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in\npart, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent\npermitted by law, and such invalid or unenforceable term or provision shall be deemed replaced by a term or provision that is valid and\nenforceable and that comes closest to expressing the Parties’ intention with respect to such invalid or unenforceable term or provision.\nThe failure or refusal of either Party to insist upon strict performance of any provision of this Agreement or to exercise any right in any\none or more instances or circumstances shall not be construed as a waiver or relinquishment of such provision or right, nor shall such\nfailures or refusals be deemed a custom or practice contrary to such provision or right.\n7\n22. 23. 24. For purposes of this Agreement, except as otherwise defined herein: (a) “Affiliate” shall mean, as to any Person, any other Person which,\ndirectly or indirectly, controls, or is controlled by, or is under common control with, such Person (for this purpose, “control” (including,\nwith its correlative meanings, “controlled by” and “under common control with”) shall mean the possession, directly or indirectly, of\nthe power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or\npartnership or other ownership interests, by contract or otherwise); and (b) “Person” shall be broadly interpreted to include any\nindividual, corporation, company, partnership, limited liability company, trust or other group or entity (including any court, government\nor agency, commission, board or authority thereof, federal, state or local, domestic, foreign or multinational).\nThis Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed an original, but such\ncounterparts shall together constitute one and the same Agreement.\nThis Agreement shall terminate upon the earlier to occur of (i) the closing of the Transaction contemplated by this Agreement, and\n(ii) twenty-four (24) months after the date hereof, after which time this Agreement and the obligations of the Parties hereunder shall have\nno further force or effect; provided, however, that with respect to Confidential Information that is stamped or specifically identified on\nthe master index at the time of delivery as “Specified Sensitive Information”, the receiving Party’s obligations of confidentiality pursuant\nto this Agreement shall survive indefinitely, so long as neither the Company nor any of its Representatives provides to PCP or any of its\nRepresentatives any such “Specified Sensitive Information” without PCP’s prior written consent.\n8\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned a duplicate copy of this Agreement. ACCEPTED AS OF THE DATE FIRST WRITTEN ABOVE: PRECISION CASTPARTS CORP. By:\n/s/ Roger A. Cooke\nName: Roger A. Cooke Title:\nSenior Vice President and General Counsel\nSincerely,\nTITANIUM METALS CORPORATION\nBy: /s/ James W. Brown\nName: James W. Brown\nTitle:  Vice President and Chief Financial Officer\nSchedule A to Confidentiality Agreement\nTurnover (million EUR) Year of\nCompanies Country Role World Community Turnover\nTitanium Metals Corporation USA T 751 261 2011\nThe Transaction\nThe transaction concerns the proposed acquisition of control of Titanium Metals Corporation by Precision Castparts through a public tender offer,\nwhich is to be filed with the US Stock Exchange Authority. The proposed transaction meets the turnover thresholds set out in Article 1(2) of the EC\nMerger Regulation and therefore constitutes a concentration which has a Community dimension.\n! T = Target	EX-99.4 3 d441639dex994.htm CONFIDENTIALITY AGREEMENT\nExhibit 4\nCONFIDENTIALITY AGREEMENT\nOctober 18, 2012\nPrecision Castparts Corp.\n4650 SW Macadam Ave, Suite 300\nPortland, OR 97239\nAttn: Roger C. Cooke\nSenior Vice President and General Counsel\nLadies and Gentlemen:\nIn connection with Precision Castparts Corp.'s ("PCP") evaluation of a possible transaction involving the stock (the "Transaction") of\nTitanium Metals Corporation (the "Company."), each Party (as defined below) has requested information from the other Party. As a condition to each\nParty's receipt of Confidential Information (as hereinafter defined), each Party agrees to treat the Confidential Information which is furnished to it or\nits Representatives (as defined below) by the other Party or any of its Representatives in accordance with the provisions of this Confidentiality\nAgreement (this "Agreement") and to take or refrain from taking certain other actions herein set forth. PCP and the Company shall each be referred\nto herein as a "Party." and collectively as the "Parties".\n1.\nEach Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage\nthat would result to such Party and its Affiliates (as defined below) if any of the Confidential Information is disclosed to any third party.\nEach Party hereby agrees that the Confidential Information will be used solely for the purpose of evaluating, negotiating and/or financing\nthe Transaction and that all of the Confidential Information will be kept confidential in accordance with the terms of this Agreement;\nprovided that any such information may be disclosed to each Party's respective Representatives who are actually engaged in and need\nto\nknow the Confidential Information for the purpose of evaluating, negotiating and/or financing the Transaction, who have been informed\nof the confidential nature of the Confidential Information, and who have been advised by such Party that such information is to be kept\nconfidential and shall not be used for any purpose other than the evaluation, negotiation and/or financing of the Transaction. Each Party\nagrees that it shall be responsible for any breach of this Agreement by any of its respective Representatives. Notwithstanding the\nforegoing, the Company acknowledges and agrees that all Confidential Information that has been provided to PCP or any of its\nRepresentatives prior to the date hereof in connection with or in preparation for any notices or filings with any European governmental\nagencies has been provided by the Company or its Representatives pursuant to this Agreement and, subject to the following sentence,\nshall be deemed Confidential Information for purposes of this Agreement. The Company further acknowledges and agrees that certain\nConfidential Information, as described on Schedule A to this Agreement, has been provided on a confidentia basis by PCP or its\nRepresentatives to certain European governmental agencies, and, notwithstanding anything to the contrary in this Agreement, the\nprovision of such Confidential Information is expressly permitted hereby, shall not be deemed to be a breach of this Agreement and none\nof PCP, any of its Affiliates or any of its or their respective Representatives shall have any liability to the Company, any of its Affiliates\nor any of its or their respective Representatives in connection therewith.\n2.\nThe term "Representatives" includes, as it applies to any party, such party's directors, officers, employees, agents and Advisors (the term\n"Advisors" shall be defined herein to include, without limitation, advisors, financial advisors, investment bankers, in-house and outside\nattorneys, accountants, consultants, analysts, lenders and other potential sources of debt financing), if and only to the extent that such\npersons have actually been provided Confidential Information. The term "Confidential Information" means (i) all information furnished\nby\nthe disclosing Party or any of its Representatives, whether furnished before or after the date hereof, whether oral or written, and\nregardless of the manner in which it is furnished, (ii) all analyses, compilations, forecasts, studies, interpretations or other documents\nprepared by receiving Party or its Representatives in connection with receiving Party's evaluation of the Transaction (including, without\nlimitation, such that reflects or is based upon, in whole or part, the information furnished to receiving Party or its Representatives\npursuant hereto), and (iii) the fact that discussions or negotiations are taking place concerning a possible Transaction, and any of the\nterms, conditions or other facts with respect to any such possible Transaction, including the status thereof. The term "Confidential\nInformation" does not include any information which at the time of disclosure or thereafter is generally available to and known by the\npublic (other than as a result of its disclosure by receiving Party or its Representatives in breach of this Agreement). The Confidential\nInformation shall remain the property of the disclosing Party. No rights to use, license, or otherwise exploit the Confidential Information\nare granted to receiving Party, by implication or otherwise. Receiving Party will not by virtue of disclosing Party's disclosure of the\nConfidential Information and/or receiving Party's use of the Confidential Information acquire any rights with respect thereto, all of\nwhich rights shall remain exclusively with the disclosing Party.\n3.\nGiven the nature of the Confidential Information and the Parties' current discussions, each Party would be irreparably damaged by any\nunauthorized disclosure or use of any Confidential Information or of the Parties' discussions or by any breach of this Agreement by the\nother Party. Without prejudice to the rights and remedies otherwise available to each Party, both Parties therefore, agree that each Party\nshall be entitled, without the requirement of posting a bond or other security, to equitable relief, including an injunction or specific\nperformance, in the event of any breach or threatened breach of the provisions of this Agreement by the other Party. Such remedies shall\nnot be deemed to be exclusive remedies but shall be in addition to all other remedies available at law or equity. If a court of competent\njurisdiction determines that any Party has breached this Agreement, then the breaching Party shal be liable and pay to the non-breaching\nParty the reasonable costs and expenses (including attorney's fees) incurred by the non-breaching Party in connection with such\nlitigation, including any appeal therefrom.\n4.\nIn the event either Party or any of its Representatives become legally compelled (by deposition, interrogatory, request for documents,\nsubpoena, civil investigation, demand, order or other legal process) to disclose any of the contents of the Confidential Information, or\neither the fact that discussions or negotiations are taking place concerning a possible Transaction, or any of the terms, conditions or other\nfacts with respect to any such possible Transaction, including the status thereof, each Party agrees that the other\n2\nParty and its Representatives may do so without liability, provided such Party (i) promptly notifies the other Party prior to any such\ndisclosure to the extent legally permissible and practicable, (ii) cooperates with the other Party in any attempts it may make to obtain a\nprotective order or other appropriate assurance that confidential treatment will be afforded the Confidential Information, and (iii) if no\nprotective order is obtained and disclosure is required, (a) furnishes only that portion of the Confidential Information that, based on the\nadvice of legal counsel, such Party is legally compelled to disclose, and (b) takes all reasonable measures to obtain reliable assurance\nthat confidential treatment will be accorded the Confidential Information.\n5.\nThe Company may elect at any time to terminate further access by PCP to the Confidential Information. At any time either Party\ndetermines not to proceed with the possible Transaction, such Party will promptly notify the other Party. Following any request by either\nParty or any of its Representatives, the other Party agrees (i) to promptly redeliver all written Confidential Information and any other\nwritten material containing or reflecting any of the Confidential Information in such Party's possession or its Representatives'\npossession, whether in hard-copy or machine readable form and including any copies thereof and (ii) all computer records, documents,\nmemoranda, notes and other writings whatsoever prepared by such Party or its Representatives based on the Confidential Information\nwill be destroyed; provided, however, that such Party and its Representatives shall be entitled to retain copies of any computer records\nand files containing any Confidential Information that have been created pursuant to automatic electronic archiving and/or back-up\nprocedures until such computer records and files have been deleted in the ordinary course, so long as such copies of Confidentia\nInformation are not accessed (except to the extent required by law) and such Confidential Information shall continue to be bound by the\nobligations of confidentiality and other obligations as provided herein. Notwithstanding the foregoing, each Party may maintain an\narchival copy of such Confidential Information under the direct control of the office of its or their General Counsel or compliance officer\nfor legal compliance purposes, which copy shall remain bound by the obligations of confidentiality herein and shall not be subject to use\nor access by a person not employed by such General Counsel's office or compliance office, as applicable, and which copy may be\nutilized solely to the extent necessary to permit such Party or its Representatives, as applicable, to comply, subject to the terms and\nconditions of this Agreement, with its required obligations. In addition, neither Party nor its Representatives shall be obligated to comply\nwith a request to return and/or destroy Confidential Information that is incorporated into any of their respective board of director or\ncommittee minutes or that is required to be retained by any of them pursuant to applicable law, including but not limited to the Sarbanes-\nOxley Act or a professional regulatory body or industry regulation, provided that any such retained Confidential Information shall be\ntreated by such Party and/or its applicable Representatives in a confidential manner using at least the same degree of care as it provides\nto\nprotect its own similar confidential information (and in any event not less than reasonable care consistent with industry best practices),\nwhich copies shall remain bound by the obligations of confidentiality hereof.\n6.\nEach Party understands and acknowledges that neither the other Party nor any of its Representatives makes any representation or\nwarranty, express or implied, as to the accuracy or completeness of the Confidentia Information. Each Party agrees that neither the other\nParty nor any of its Representatives shall have any liability to such Party or any\n3\nof its Representatives relating to or resulting from such Party's or its Representatives' use of the Confidential Information or any errors\ntherein or omissions therefrom. PCP further understands and agrees that (i) the Company (a) shall be free to conduct the process for a\nTransaction as it in its sole discretion shall determine (including changing or terminating such process, providing any information to any\nother Person, negotiating with any other Person or entering into a definitive agreement with any other Person with respect to any\ntransaction, in each case, at any time and without notice to PCP or any other Person) and (b) shall be free at its sole discretion to at any\ntime to accept or reject any proposal relating to the Company for any reason without notice to PCP or any other Person, and (ii) PCP\nshall have no claim against the Company or any of its representatives in connection with any of the foregoing.\n7.\nFor a period of one (1) year after the date hereof, each Party agrees not to solicit for employment any of the current employees of the\nother Party to whom the first Party had been directly or indirectly introduced or otherwise had initial contact with as a result of its\nconsideration of a Transaction, so long as they are employed by the other Party; provided that this Agreement shall not prohibit either\nParty or any of its Representatives from (x) hiring any such employee who responds to any genera solicitation performed by the such\nParty or any of its Representatives that is not specifically targeted at such persons, (y) soliciting any employee of the other Party\nfollowing the consummation of a Transaction or any other potential similar transaction or (z) responding to any person who initiates\ncontact with such Party regarding potential employment.\n8. Each Party hereby represents and warrants that such Party is not bound by the terms of a confidentiality agreement or other agreement\nwith a third party that would conflict with any of its obligations under this Agreement.\n9.\nIn accepting and reviewing the Confidential Information, PCP represents and warrants that it is acting solely for itself. Subject to\nSection 13 of this Agreement, PCP further represents and warrants that PCP has not discussed and hereby covenants that unless PCP\nhas\nfirst received the written consent of the Company, PCP will not discuss or share with any third party other than any of PCP's\nRepresentatives any aspect of the Confidential Information or the fact that the Company is interested in a proposed Transaction, either on\nits own or in conjunction with any other interested Person in violation of this Agreement. PCP acknowledges that the effect of this\ncovenant is that without the full disclosure to and the written consent of the Company, PCP cannot act as agent, partner, co-participant\nor\nco-venturer for any third party or third parties with respect to a proposed Transaction. In order to obtain the consent of the Company,\nwhich the Company is entitled to withhold in its sole discretion, PCP shall notify the Company of the identity of each Person for whom\nor with whom PCP had considered pursuing a possible Transaction, and the nature and interest PCP and each such Person would have in\nrespect of such possible Transaction.\n10.\nEach Party agrees that, unless and until a binding agreement is entered into between the Company and PCP with respect to the\nTransaction, (a) no contract or agreement providing for any Transaction shall be deemed to exist, (b) no obligation, commitment or\nundertaking of any kind whatsoever with respect to any Transaction shall be implied and (c) neither the Company nor PCP will be under\nany legal obligation of any kind whatsoever with respect to the Transaction by virtue of this Agreement or any other\n4\nwritten or oral expression, except, in the case of this Agreement, with respect to the matters specifically agreed to herein. Except as\nprovided in Paragraphs 8, 9, and 12 herein, nothing contained in any discussions between PCP and the Company or in any Confidential\nInformation shall be deemed to constitute a representation or warranty. Except for the matters set forth in this Agreement or in any such\nbinding agreement, neither Party shall be entitled to rely on any statement, promise, agreement or understanding, whether oral or written,\nany custom, usage of trade, course of dealing or conduct.\n11. Except as provided in Section 13 of this Agreement, PCP agrees that all (i) communications regarding the Transaction, (ii) requests for\nadditional Confidential Information, (iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding\nprocedures, will be submitted or directed only to Andy Nace at anace@valhi.net or any other representative of the Company's general\ncounsel office designated from time to time by the Company in writing. Except as provided in Section 13, without the other Party's prior\nwritten consent, neither Party shall, and each Party shall direct its Representatives not to, make any contact of any nature regarding a\nproposed Transaction (including inquiries or requests concerning Confidential Information) with any supplier, customer, labor union,\nlandlord, lessor, bank or other lender of or to the other Party or any of their Affiliates.\n12.\nExcept as provided in Section 13 of this Agreement, in consideration for the Confidential Information of the Company being furnished to\nPCP under this Agreement, PCP agrees that, for a period of twelve (12) months after the date hereof (the "Standstill Period"), PCP shall\nnot and shall cause its Affiliates not to, and neither PCP nor such affiliate shall assist or encourage others to directly or indirectly, acting\nalone or in concert with others, in each case unless specifically requested in writing in advance by the Company:\n(a)\nacquire or agree, offer, seek or propose to acquire ownership (including, but not limited to, beneficial ownership as defined in\nRule 13d-3 under the Securities Exchange Act of 1934, as amended) of any shares or any class of voting securities issued by the\nCompany, or any rights or options to acquire such ownership (including from a third party);\n(b)\noffer, seek or propose a merger, consolidation or similar transaction involving the Company;\n(c)\noffer, seek or propose to purchase, lease or otherwise acquire all or a substantial portion of the assets of the Company;\n(d)\nseek or propose to influence or control the management or policies of the Company or obtain representation on the Company's\nBoard of Directors, or solicit or participate in the solicitation of any proxies or consents with respect to the securities of the\nCompany or request a list of the Company's stockholders; or\n(e)\npublicly seek or request permission to do any of the foregoing or seek any permission to make any public announcement with\nrespect to any of the foregoing.\n5\nPCP also agrees during the term of this Agreement not to publicly request the Company or any of its Representatives, directly or\nindirectly, to amend or waive any provision of this paragraph (including this sentence). Nothing herein shall preclude PCP's ability to\nadvise the Company, its Board of Directors, or its legal and financial advisors on a confidential, nonpublic basis, of the terms and\nconditions of any proposed Transaction PCP is currently considering. The obligations set forth in this Paragraph 12 shall terminate in the\nevent that, in absence of any breach by PCP of its obligations under this Agreement, (i) a Person, entity or group unaffiliated with PCP\nhas commenced a bona fide tender or exchange offer for at least a majority of the Company's outstanding shares, or (ii) the Company\nenters into a definitive agreement with a third party for the acquisition of a majority of the Company's shares or the sale of all or\nsubstantially all of the Company's assets.\nNotwithstanding anything in this Agreement to the contrary, following the expiration of the Standstill Period, PCP and its affiliates shall\nnot be prohibited by this Agreement from (i) taking any of the actions prohibited under this Section 12 during the Standstill Period,\nincluding without limitation, acquiring or offering to acquire any class of voting securities issued by the Company through a tender offer\nor otherwise, (ii) using the Confidential Information obtained pursuant to this Agreement specifically for the purpose of taking any such\naction contemplated pursuant to this Section and (iii) disclosing, to the extent required by applicable law as determined in good faith by\nPCP upon the advice of counsel, in any tender offer documents filed or furnished with the Securities and Exchange Commission, any\nConfidential Information received pursuant to this Agreement.\n13. Notwithstanding anything to the contrary in this Agreement, the Company acknowledges that PCP and certain of its Representatives\nhave had discussions and negotiations with Contran Corporation and certain of its affiliates and Representatives (collectively, "Contran")\nregarding a potential Transaction.\n14.\nNotwithstanding anything to the contrary in this Agreement, this Agreement shall not prohibit any disclosure by either Party of the fact\nthat discussions or negotiations are taking place concerning a possible Transaction or of information with respect to terms, conditions or\nother facts with respect to a possible Transaction to the extent required by securities laws or stock exchange rules as determined in good\nfaith by such Party upon the advice of counsel. In addition, the Company may disclose the fact that discussions or negotiations are taking\nplace concerning a possible Transaction, or information with respect to terms, conditions or other facts with respect to a possible\nTransaction, in the context of any "market check" performed by the Company, provided that PCP's identity (and any description of PCP\nor its business which could allow a Person to reasonably determine PCP's identity), and any proposed price in any possible Transaction,\nshall remain strictly confidential.\n15.\nEach Party hereby acknowledges that it is aware, and will advise each of their respective Representatives who are informed as to the\nmatters that are the subject of this Agreement, that the United States securities laws restrict any Person who or that has received from an\nissuer material, non-public information from purchasing or selling securities of such issuer or from communicating such information to\nany other Person under circumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities.\n6\n16. Notwithstanding anything contained herein to the contrary in this Agreement, nothing contained herein shall be defined, construed, or\notherwise interpreted to limit or restrict any Party's or any of its respective Representatives', or any of its or their respective affiliates',\nrights to engage in their respective businesses in the ordinary course, including ordinary course communications and commercial\ntransactions between the Parties and their respective Representatives.\n17. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware without regard to conflict of laws\nprinciples. Each Party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of\nDelaware and of the United States of America located in the State of Delaware for any action, suit or proceeding arising out of or\nrelating to this Agreement and the transactions contemplated hereby, and each Party agrees not to commence any action, suit, or\nproceeding relating thereto except in such courts, and further agrees that any service of any process, summons, notice or document by\nUS registered mail or internationally recognized carrier to such Party's address set forth above shall be effective service of process in any\naction, suit or proceeding brought against such Party in any such court. Each Party irrevocably and unconditionally waives any objection\nto the laying of venue of any action, suit or proceeding arising out of this Agreement or transactions contemplated hereby in the courts of\nthe State of Delaware or the United States of America located in the State of Delaware and hereby further irrevocably and\nunconditionally waives and agrees not to plead or claim that any such action, suit or proceeding brought in any such court has been\nbrought in an inconvenient forum.\n18. The provisions of this Agreement shall be binding solely upon and inure to the benefit of the Parties hereto and their respective\nsuccessors and permitted assigns, expressly including any successor to or acquirer of the Company. Neither this Agreement nor any of\nthe rights and/or obligations hereunder may be assigned by either Party without the prior written consent of the other Party, and any\nattempted assignment or transfer by either Party not in accordance herewith shall be null and void ab initio.\n19.\nThis Agreement represents the entire understanding and agreement of the Parties and may be modified only by a separate written\nagreement executed by each Party expressly modifying this Agreement. This Agreement supersedes and cancels any and all prior\nagreements between the Parties, express or implied, relating to the Transaction.\n20.\nIn the event that any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in\npart, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent\npermitted by law, and such invalid or unenforceable term or provision shall be deemed replaced by a term or provision that is valid and\nenforceable and that comes closest to expressing the Parties' intention with respect to such invalid or unenforceable term or provision.\n21.\nThe failure or refusal of either Party to insist upon strict performance of any provision of this Agreement or to exercise any right in any\none or more instances or circumstances shall not be construed as a waiver or relinquishment of such provision or right, nor shall\nsuch\nfailures or refusals be deemed a custom or practice contrary to such provision or right.\n7\n22. For purposes of this Agreement, except as otherwise defined herein: (a) "Affiliate" shall mean, as to any Person, any other Person which,\ndirectly or indirectly, controls, or is controlled by, or is under common control with, such Person (for this purpose, "control" (including,\nwith its correlative meanings, "controlled by" and "under common control with") shall mean the possession, directly or indirectly, of\nthe power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or\npartnership or other ownership interests, by contract or otherwise) and (b) "Person" shall be broadly interpreted to include any\nindividual, corporation, company, partnership, limited liability company, trust or other group or entity (including any court, government\nor agency, commission, board or authority thereof, federal, state or local, domestic, foreign or multinational).\n23. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed an original, but such\ncounterparts shall together constitute one and the same Agreement.\n24.\nThis Agreement shall terminate upon the earlier to occur of (i) the closing of the Transaction contemplated by this Agreement, and\n(ii) twenty-four (24) months after the date hereof, after which time this Agreement and the obligations of the Parties hereunder shall have\nno further force or effect; provided, however, that with respect to Confidential Information that is stamped or specifically identified on\nthe master index at the time of delivery as "Specified Sensitive Information", the receiving Party's obligations of confidentiality pursuant\nto this Agreement shall survive indefinitely, so long as neither the Company nor any of its Representatives provides to PCP or any of\nits\nRepresentatives any such "Specified Sensitive Information" without PCP's prior written consent.\n8\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned a duplicate copy of this Agreement.\nSincerely,\nTITANIUM METALS CORPORATION\nBy:\n/s/ James W. Brown\nName: James W. Brown\nTitle: Vice President and Chief Financial Officer\nACCEPTED AS OF THE DATE FIRST\nWRITTEN ABOVE:\nPRECISION CASTPARTS CORP.\nBy:\n/s/ Roger A. Cooke\nName: Roger A. Cooke\nTitle:\nSenior Vice President and General Counsel\nSchedule A to Confidentiality Agreement\nTurnover (million EUR)\nYear of\nCompanies\nCountry\nRole\nWorld\nCommunity\nTurnover\nTitanium Metals Corporation\nUSA\nT1\n751\n261\n2011\nThe Transaction\nThe transaction concerns the proposed acquisition of control of Titanium Metals Corporation by Precision Castparts through a public tender offer,\nwhich is to be filed with the US Stock Exchange Authority. The proposed transaction meets the turnover thresholds set out in Article 1(2) of the EC\nMerger Regulation and therefore constitutes a concentration which has a Community dimension.\n1\nT - Target	EX-99.4 3 d441639dex994.htm CONFIDENTIALITY AGREEMENT\nExhibit 4\nCONFIDENTIALITY AGREEMENT\nOctober 18, 2012\nPrecision Castparts Corp.\n4650 SW Macadam Ave, Suite 300\nPortland, OR 97239\nAttn: Roger C. Cooke\nSenior Vice President and General Counsel\nLadies and Gentlemen:\nIn connection with Precision Castparts Corp.’s (“PCP”) evaluation of a possible transaction involving the stock (the “Transaction”) of\nTitanium Metals Corporation (the “Company”), each Party (as defined below) has requested information from the other Party. As a condition to each\nParty’s receipt of Confidential Information (as hereinafter defined), each Party agrees to treat the Confidential Information which is furnished to it or\nits Representatives (as defined below) by the other Party or any of its Representatives in accordance with the provisions of this Confidentiality\nAgreement (this “Agreement”) and to take or refrain from taking certain other actions herein set forth. PCP and the Company shall each be referred\nto herein as a “Party” and collectively as the “Parties”.\n1. Each Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and the damage\nthat would result to such Party and its Affiliates (as defined below) if any of the Confidential Information is disclosed to any third party.\nEach Party hereby agrees that the Confidential Information will be used solely for the purpose of evaluating, negotiating and/or financing\nthe Transaction and that all of the Confidential Information will be kept confidential in accordance with the terms of this Agreement;\nprovided that any such information may be disclosed to each Party’s respective Representatives who are actually engaged in and need to\nknow the Confidential Information for the purpose of evaluating, negotiating and/or financing the Transaction, who have been informed\nof the confidential nature of the Confidential Information, and who have been advised by such Party that such information is to be kept\nconfidential and shall not be used for any purpose other than the evaluation, negotiation and/or financing of the Transaction. Each Party\nagrees that it shall be responsible for any breach of this Agreement by any of its respective Representatives. Notwithstanding the\nforegoing, the Company acknowledges and agrees that all Confidential Information that has been provided to PCP or any of its\nRepresentatives prior to the date hereof in connection with or in preparation for any notices or filings with any European governmental\nagencies has been provided by the Company or its Representatives pursuant to this Agreement and, subject to the following sentence,\nshall be deemed Confidential Information for purposes of this Agreement. The Company further acknowledges and agrees that certain\nConfidential Information, as described on Schedule A to this Agreement, has been provided on a confidential basis by PCP or its\nRepresentatives to certain European governmental agencies, and, notwithstanding anything to the contrary in this Agreement, the\nprovision of such Confidential Information is expressly permitted hereby, shall not be deemed to be a breach of this Agreement and none\nof PCP, any of its Affiliates or any of its or their respective Representatives shall have any liability to the Company, any of its Affiliates\nor any of its or their respective Representatives in connection therewith.\n2. The term “Representatives” includes, as it applies to any party, such party’s directors, officers, employees, agents and Advisors (the term\n“Advisors” shall be defined herein to include, without limitation, advisors, financial advisors, investment bankers, in-house and outside\nattorneys, accountants, consultants, analysts, lenders and other potential sources of debt financing), if and only to the extent that such\npersons have actually been provided Confidential Information. The term “Confidential Information” means (i) all information furnished\nby the disclosing Party or any of its Representatives, whether furnished before or after the date hereof, whether oral or written, and\nregardless of the manner in which it is furnished, (ii) all analyses, compilations, forecasts, studies, interpretations or other documents\nprepared by receiving Party or its Representatives in connection with receiving Party’s evaluation of the Transaction (including, without\nlimitation, such that reflects or is based upon, in whole or part, the information furnished to receiving Party or its Representatives\npursuant hereto), and (iii) the fact that discussions or negotiations are taking place concerning a possible Transaction, and any of the\nterms, conditions or other facts with respect to any such possible Transaction, including the status thereof. The term “Confidential\nInformation” does not include any information which at the time of disclosure or thereafter is generally available to and known by the\npublic (other than as a result of its disclosure by receiving Party or its Representatives in breach of this Agreement). The Confidential\nInformation shall remain the property of the disclosing Party. No rights to use, license, or otherwise exploit the Confidential Information\nare granted to receiving Party, by implication or otherwise. Receiving Party will not by virtue of disclosing Party’s disclosure of the\nConfidential Information and/or receiving Party’s use of the Confidential Information acquire any rights with respect thereto, all of\nwhich rights shall remain exclusively with the disclosing Party.\n3. Given the nature of the Confidential Information and the Parties’ current discussions, each Party would be irreparably damaged by any\nunauthorized disclosure or use of any Confidential Information or of the Parties’ discussions or by any breach of this Agreement by the\nother Party. Without prejudice to the rights and remedies otherwise available to each Party, both Parties therefore, agree that each Party\nshall be entitled, without the requirement of posting a bond or other security, to equitable relief, including an injunction or specific\nperformance, in the event of any breach or threatened breach of the provisions of this Agreement by the other Party. Such remedies shall\nnot be deemed to be exclusive remedies but shall be in addition to all other remedies available at law or equity. If a court of competent\njurisdiction determines that any Party has breached this Agreement, then the breaching Party shall be liable and pay to the non-breaching\nParty the reasonable costs and expenses (including attorney’s fees) incurred by the non-breaching Party in connection with such\nlitigation, including any appeal therefrom.\n4. In the event either Party or any of its Representatives become legally compelled (by deposition, interrogatory, request for documents,\nsubpoena, civil investigation, demand, order or other legal process) to disclose any of the contents of the Confidential Information, or\neither the fact that discussions or negotiations are taking place concerning a possible Transaction, or any of the terms, conditions or other\nfacts with respect to any such possible Transaction, including the status thereof, each Party agrees that the other\n2\nParty and its Representatives may do so without liability, provided such Party (i) promptly notifies the other Party prior to any such\ndisclosure to the extent legally permissible and practicable, (ii) cooperates with the other Party in any attempts it may make to obtain a\nprotective order or other appropriate assurance that confidential treatment will be afforded the Confidential Information, and (iii) if no\nprotective order is obtained and disclosure is required, (a) furnishes only that portion of the Confidential Information that, based on the\nadvice of legal counsel, such Party is legally compelled to disclose, and (b) takes all reasonable measures to obtain reliable assurance\nthat confidential treatment will be accorded the Confidential Information.\n5. The Company may elect at any time to terminate further access by PCP to the Confidential Information. At any time either Party\ndetermines not to proceed with the possible Transaction, such Party will promptly notify the other Party. Following any request by either\nParty or any of its Representatives, the other Party agrees (i) to promptly redeliver all written Confidential Information and any other\nwritten material containing or reflecting any of the Confidential Information in such Party’s possession or its Representatives’\npossession, whether in hard-copy or machine readable form and including any copies thereof and (ii) all computer records, documents,\nmemoranda, notes and other writings whatsoever prepared by such Party or its Representatives based on the Confidential Information\nwill be destroyed; provided, however, that such Party and its Representatives shall be entitled to retain copies of any computer records\nand files containing any Confidential Information that have been created pursuant to automatic electronic archiving and/or back-up\nprocedures until such computer records and files have been deleted in the ordinary course, so long as such copies of Confidential\nInformation are not accessed (except to the extent required by law) and such Confidential Information shall continue to be bound by the\nobligations of confidentiality and other obligations as provided herein. Notwithstanding the foregoing, each Party may maintain an\narchival copy of such Confidential Information under the direct control of the office of its or their General Counsel or compliance officer\nfor legal compliance purposes, which copy shall remain bound by the obligations of confidentiality herein and shall not be subject to use\nor access by a person not employed by such General Counsel’s office or compliance office, as applicable, and which copy may be\nutilized solely to the extent necessary to permit such Party or its Representatives, as applicable, to comply, subject to the terms and\nconditions of this Agreement, with its required obligations. In addition, neither Party nor its Representatives shall be obligated to comply\nwith a request to return and/or destroy Confidential Information that is incorporated into any of their respective board of director or\ncommittee minutes or that is required to be retained by any of them pursuant to applicable law, including but not limited to the Sarbanes-\nOxley Act or a professional regulatory body or industry regulation, provided that any such retained Confidential Information shall be\ntreated by such Party and/or its applicable Representatives in a confidential manner using at least the same degree of care as it provides\nto protect its own similar confidential information (and in any event not less than reasonable care consistent with industry best practices),\nwhich copies shall remain bound by the obligations of confidentiality hereof.\n6. Each Party understands and acknowledges that neither the other Party nor any of its Representatives makes any representation or\nwarranty, express or implied, as to the accuracy or completeness of the Confidential Information. Each Party agrees that neither the other\nParty nor any of its Representatives shall have any liability to such Party or any\n3\nof its Representatives relating to or resulting from such Party’s or its Representatives’ use of the Confidential Information or any errors\ntherein or omissions therefrom. PCP further understands and agrees that (i) the Company (a) shall be free to conduct the process for a\nTransaction as it in its sole discretion shall determine (including changing or terminating such process, providing any information to any\nother Person, negotiating with any other Person or entering into a definitive agreement with any other Person with respect to any\ntransaction, in each case, at any time and without notice to PCP or any other Person) and (b) shall be free at its sole discretion to at any\ntime to accept or reject any proposal relating to the Company for any reason without notice to PCP or any other Person, and (ii) PCP\nshall have no claim against the Company or any of its representatives in connection with any of the foregoing.\n7. For a period of one (1) year after the date hereof, each Party agrees not to solicit for employment any of the current employees of the\nother Party to whom the first Party had been directly or indirectly introduced or otherwise had initial contact with as a result of its\nconsideration of a Transaction, so long as they are employed by the other Party; provided that this Agreement shall not prohibit either\nParty or any of its Representatives from (x) hiring any such employee who responds to any general solicitation performed by the such\nParty or any of its Representatives that is not specifically targeted at such persons, (y) soliciting any employee of the other Party\nfollowing the consummation of a Transaction or any other potential similar transaction or (z) responding to any person who initiates\ncontact with such Party regarding potential employment.\n8. Each Party hereby represents and warrants that such Party is not bound by the terms of a confidentiality agreement or other agreement\nwith a third party that would conflict with any of its obligations under this Agreement.\n9. In accepting and reviewing the Confidential Information, PCP represents and warrants that it is acting solely for itself. Subject to\nSection 13 of this Agreement, PCP further represents and warrants that PCP has not discussed and hereby covenants that unless PCP has\nfirst received the written consent of the Company, PCP will not discuss or share with any third party other than any of PCP’s\nRepresentatives any aspect of the Confidential Information or the fact that the Company is interested in a proposed Transaction, either on\nits own or in conjunction with any other interested Person in violation of this Agreement. PCP acknowledges that the effect of this\ncovenant is that without the full disclosure to and the written consent of the Company, PCP cannot act as agent, partner, co-participant or\nco-venturer for any third party or third parties with respect to a proposed Transaction. In order to obtain the consent of the Company,\nwhich the Company is entitled to withhold in its sole discretion, PCP shall notify the Company of the identity of each Person for whom\nor with whom PCP had considered pursuing a possible Transaction, and the nature and interest PCP and each such Person would have in\nrespect of such possible Transaction.\n10. Each Party agrees that, unless and until a binding agreement is entered into between the Company and PCP with respect to the\nTransaction, (a) no contract or agreement providing for any Transaction shall be deemed to exist, (b) no obligation, commitment or\nundertaking of any kind whatsoever with respect to any Transaction shall be implied and (c) neither the Company nor PCP will be under\nany legal obligation of any kind whatsoever with respect to the Transaction by virtue of this Agreement or any other\n4\nwritten or oral expression, except, in the case of this Agreement, with respect to the matters specifically agreed to herein. Except as\nprovided in Paragraphs 8, 9, and 12 herein, nothing contained in any discussions between PCP and the Company or in any Confidential\nInformation shall be deemed to constitute a representation or warranty. Except for the matters set forth in this Agreement or in any such\nbinding agreement, neither Party shall be entitled to rely on any statement, promise, agreement or understanding, whether oral or written,\nany custom, usage of trade, course of dealing or conduct.\n11. Except as provided in Section 13 of this Agreement, PCP agrees that all (i) communications regarding the Transaction, (ii) requests for\nadditional Confidential Information, (iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding\nprocedures, will be submitted or directed only to Andy Nace at anace@valhi.net or any other representative of the Company’s general\ncounsel office designated from time to time by the Company in writing. Except as provided in Section 13, without the other Party’s prior\nwritten consent, neither Party shall, and each Party shall direct its Representatives not to, make any contact of any nature regarding a\nproposed Transaction (including inquiries or requests concerning Confidential Information) with any supplier, customer, labor union,\nlandlord, lessor, bank or other lender of or to the other Party or any of their Affiliates.\n12. Except as provided in Section 13 of this Agreement, in consideration for the Confidential Information of the Company being furnished to\nPCP under this Agreement, PCP agrees that, for a period of twelve (12) months after the date hereof (the “Standstill Period”), PCP shall\nnot and shall cause its Affiliates not to, and neither PCP nor such affiliate shall assist or encourage others to directly or indirectly, acting\nalone or in concert with others, in each case unless specifically requested in writing in advance by the Company:\n(a)\nacquire or agree, offer, seek or propose to acquire ownership (including, but not limited to, beneficial ownership as defined in\nRule 13d-3 under the Securities Exchange Act of 1934, as amended) of any shares or any class of voting securities issued by the\nCompany, or any rights or options to acquire such ownership (including from a third party);\n(b) offer, seek or propose a merger, consolidation or similar transaction involving the Company;\n(c)\noffer, seek or propose to purchase, lease or otherwise acquire all or a substantial portion of the assets of the Company;\n(d) seek or propose to influence or control the management or policies of the Company or obtain representation on the Company’s\nBoard of Directors, or solicit or participate in the solicitation of any proxies or consents with respect to the securities of the\nCompany or request a list of the Company’s stockholders; or\n(e) publicly seek or request permission to do any of the foregoing or seek any permission to make any public announcement with\nrespect to any of the foregoing.\n5\nPCP also agrees during the term of this Agreement not to publicly request the Company or any of its Representatives, directly or\nindirectly, to amend or waive any provision of this paragraph (including this sentence). Nothing herein shall preclude PCP’s ability to\nadvise the Company, its Board of Directors, or its legal and financial advisors on a confidential, nonpublic basis, of the terms and\nconditions of any proposed Transaction PCP is currently considering. The obligations set forth in this Paragraph 12 shall terminate in the\nevent that, in absence of any breach by PCP of its obligations under this Agreement, (i) a Person, entity or group unaffiliated with PCP\nhas commenced a bona fide tender or exchange offer for at least a majority of the Company’s outstanding shares, or (ii) the Company\nenters into a definitive agreement with a third party for the acquisition of a majority of the Company’s shares or the sale of all or\nsubstantially all of the Company’s assets.\nNotwithstanding anything in this Agreement to the contrary, following the expiration of the Standstill Period, PCP and its affiliates shall\nnot be prohibited by this Agreement from (i) taking any of the actions prohibited under this Section 12 during the Standstill Period,\nincluding without limitation, acquiring or offering to acquire any class of voting securities issued by the Company through a tender offer\nor otherwise, (ii) using the Confidential Information obtained pursuant to this Agreement specifically for the purpose of taking any such\naction contemplated pursuant to this Section and (iii) disclosing, to the extent required by applicable law as determined in good faith by\nPCP upon the advice of counsel, in any tender offer documents filed or furnished with the Securities and Exchange Commission, any\nConfidential Information received pursuant to this Agreement.\n13. Notwithstanding anything to the contrary in this Agreement, the Company acknowledges that PCP and certain of its Representatives\nhave had discussions and negotiations with Contran Corporation and certain of its affiliates and Representatives (collectively, “Contran”)\nregarding a potential Transaction.\n14. Notwithstanding anything to the contrary in this Agreement, this Agreement shall not prohibit any disclosure by either Party of the fact\nthat discussions or negotiations are taking place concerning a possible Transaction or of information with respect to terms, conditions or\nother facts with respect to a possible Transaction to the extent required by securities laws or stock exchange rules as determined in good\nfaith by such Party upon the advice of counsel. In addition, the Company may disclose the fact that discussions or negotiations are taking\nplace concerning a possible Transaction, or information with respect to terms, conditions or other facts with respect to a possible\nTransaction, in the context of any “market check” performed by the Company, provided that PCP’s identity (and any description of PCP\nor its business which could allow a Person to reasonably determine PCP’s identity), and any proposed price in any possible Transaction,\nshall remain strictly confidential.\n15. Each Party hereby acknowledges that it is aware, and will advise each of their respective Representatives who are informed as to the\nmatters that are the subject of this Agreement, that the United States securities laws restrict any Person who or that has received from an\nissuer material, non-public information from purchasing or selling securities of such issuer or from communicating such information to\nany other Person under circumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities.\n6\n16. Notwithstanding anything contained herein to the contrary in this Agreement, nothing contained herein shall be defined, construed, or\notherwise interpreted to limit or restrict any Party’s or any of its respective Representatives’, or any of its or their respective affiliates’,\nrights to engage in their respective businesses in the ordinary course, including ordinary course communications and commercial\ntransactions between the Parties and their respective Representatives.\n17. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware without regard to conflict of laws\nprinciples. Each Party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of\nDelaware and of the United States of America located in the State of Delaware for any action, suit or proceeding arising out of or\nrelating to this Agreement and the transactions contemplated hereby, and each Party agrees not to commence any action, suit, or\nproceeding relating thereto except in such courts, and further agrees that any service of any process, summons, notice or document by\nUS registered mail or internationally recognized carrier to such Party’s address set forth above shall be effective service of process in any\naction, suit or proceeding brought against such Party in any such court. Each Party irrevocably and unconditionally waives any objection\nto the laying of venue of any action, suit or proceeding arising out of this Agreement or transactions contemplated hereby in the courts of\nthe State of Delaware or the United States of America located in the State of Delaware and hereby further irrevocably and\nunconditionally waives and agrees not to plead or claim that any such action, suit or proceeding brought in any such court has been\nbrought in an inconvenient forum.\n18. The provisions of this Agreement shall be binding solely upon and inure to the benefit of the Parties hereto and their respective\nsuccessors and permitted assigns, expressly including any successor to or acquirer of the Company. Neither this Agreement nor any of\nthe rights and/or obligations hereunder may be assigned by either Party without the prior written consent of the other Party, and any\nattempted assignment or transfer by either Party not in accordance herewith shall be null and void ab initio.\n19. This Agreement represents the entire understanding and agreement of the Parties and may be modified only by a separate written\nagreement executed by each Party expressly modifying this Agreement. This Agreement supersedes and cancels any and all prior\nagreements between the Parties, express or implied, relating to the Transaction.\n20. In the event that any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or in\npart, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent\npermitted by law, and such invalid or unenforceable term or provision shall be deemed replaced by a term or provision that is valid and\nenforceable and that comes closest to expressing the Parties’ intention with respect to such invalid or unenforceable term or provision.\n21. The failure or refusal of either Party to insist upon strict performance of any provision of this Agreement or to exercise any right in any\none or more instances or circumstances shall not be construed as a waiver or relinquishment of such provision or right, nor shall such\nfailures or refusals be deemed a custom or practice contrary to such provision or right.\n7\n22. For purposes of this Agreement, except as otherwise defined herein: (a) “Affiliate” shall mean, as to any Person, any other Person which,\ndirectly or indirectly, controls, or is controlled by, or is under common control with, such Person (for this purpose, “control” (including,\nwith its correlative meanings, “controlled by” and “under common control with”) shall mean the possession, directly or indirectly, of\nthe power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or\npartnership or other ownership interests, by contract or otherwise); and (b) “Person” shall be broadly interpreted to include any\nindividual, corporation, company, partnership, limited liability company, trust or other group or entity (including any court, government\nor agency, commission, board or authority thereof, federal, state or local, domestic, foreign or multinational).\n23. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed an original, but such\ncounterparts shall together constitute one and the same Agreement.\n24. This Agreement shall terminate upon the earlier to occur of (i) the closing of the Transaction contemplated by this Agreement, and\n(ii) twenty-four (24) months after the date hereof, after which time this Agreement and the obligations of the Parties hereunder shall have\nno further force or effect; provided, however, that with respect to Confidential Information that is stamped or specifically identified on\nthe master index at the time of delivery as “Specified Sensitive Information”, the receiving Party’s obligations of confidentiality pursuant\nto this Agreement shall survive indefinitely, so long as neither the Company nor any of its Representatives provides to PCP or any of its\nRepresentatives any such “Specified Sensitive Information” without PCP’s prior written consent.\n8\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned a duplicate copy of this Agreement.\nSincerely,\nTITANIUM METALS CORPORATION\nBy: /s/ James W. Brown\nName: James W. Brown\nTitle: Vice President and Chief Financial Officer\nACCEPTED AS OF THE DATE FIRST\nWRITTEN ABOVE:\nPRECISION CASTPARTS CORP.\nBy: /s/ Roger A. Cooke\nName: Roger A. Cooke\nTitle: Senior Vice President and General Counsel\nSchedule A to Confidentiality Agreement\nCompanies\nCountry\nRole\nTurnover (million EUR)\nYear of\nTurnover\nWorld\nCommunity\nTitanium Metals Corporation\nUSA\nT\n751\n261\n2011\nThe Transaction\nThe transaction concerns the proposed acquisition of control of Titanium Metals Corporation by Precision Castparts through a public tender offer,\nwhich is to be filed with the US Stock Exchange Authority. The proposed transaction meets the turnover thresholds set out in Article 1(2) of the EC\nMerger Regulation and therefore constitutes a concentration which has a Community dimension.\nT = Target\n1\n1
+32a2f7e052178d6f307b7faf29429b7d.pdf	effective_date jurisdiction party term	EX-10.10 2 dex1010.htm NONCOMPETITION AND CONFIDENTIALITY AGREEMENT, WILLIAM H. HESS\nExhibit 10.10\nNONCOMPETITION AND CONFIDENTIALITY AGREEMENT\nThis Agreement (this “Agreement”) made as of January 1, 2004, by and between American Tower Corporation, a Delaware corporation\n(“ATC”), and William H. Hess (“Optionee”), an individual residing at\n.\nWHEREAS, ATC, American Tower International, Inc., a Delaware corporation (“ATC International”), and ATC South America Holding Corp,\na Delaware corporation (“Holding”), are parties to a Stockholder/Optionee Agreement, dated as of January 1, 2004, and of which Optionee executed\na counterpart on January 1, 2004 (collectively, the “Stockholder Agreement”), pursuant to which Holding will issue to Optionee options to purchase\nshares of its Common Stock, par value $.01 per share; and\nWHEREAS, Optionee is an employee of ATC or one of its subsidiaries and will perform services for Holding;\nNOW, THEREFORE, in consideration of the consummation of the transactions contemplated by the Stockholder Agreement, the sum of One\nDollar ($1.00), the material covenants and agreements contained herein, and other good and valuable consideration, the receipt, adequacy and\nsufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do covenant and agree as follows:\nSection 1. Definitions. Terms used in this Agreement which are not defined herein but which are defined in the Stockholder Agreement shall\nhave the respective meanings so defined.\nConfidential Information shall mean any and all information (excluding information in the public domain other than as a direct or indirect\nresult of any breach by Optionee of the provisions of this Agreement) related to the business, operations, management, assets, property, plans or\nprospects, condition, financial or other, or results of operation of ATC, any Affiliate of ATC or any of their respective successors or assigns,\nincluding without limitation:\n(a)\nthe whole or any portion or phase of any business plans, financial information, purchasing data, supplier or customer data,\naccounting data, or computer programs (including source and object codes), tapes, discs, data, software or other information;\n(b) the whole or any portion or phase of any marketing or sales information or technique, sales records, customer lists, supplier lists,\nprices, sales projections or other listings of names, addresses, or telephone numbers, or other sales information;\n(c)\nthe whole or any portion or phase of any employee payroll, fringe benefit, salary, bonus, commission or other form of\ncompensation information and all employee personnel information, including information relating to performance evaluations,\ndiscipline, employee conduct, complaints and other matters relating to employment of any Person; and\n(d) Intellectual Property;\nwhether or not any of the foregoing has been made, developed and/or conceived by Optionee or by others in the employ of any such Person.\nNotwithstanding the foregoing, the term “Confidential Information”\nshall not include and information reasonably necessary for the conducting of any activity expressly excluded from the definition of “Proscribed\nActivity” hereunder.\nCovered Territory shall mean (a) while Optionee is employed by ATC or any of its Affiliates, North, South and Latin America, Europe and all\nother areas in which ATC or any of its Affiliates has invested or proposes to invest; and (b) thereafter, North America and any other markets where\nOptionee has been or is involved or is negotiating a proposed investment, acquisition or other transaction on behalf of ATC or any of its Affiliates.\nGood Reason shall mean:\n(a) the assignment to Optionee of any duties inconsistent in any material respect with his current position, authority, duties or\nresponsibilities or any other action by ATC or Holding or any of their Affiliates that results in a diminution, in any material respect, in\nsuch position, authority, duties or responsibilities; or\n(b) a material reduction in Optionee’s compensation or other benefits (taking into account the compensation and other benefits from ATC or\nHolding and their Affiliates from whom he may, from time to time, receive compensation), the result of which is to place Optionee in a\nmaterially less favorable position as to such compensation and benefits compared to other employees of ATC or Holding and their\nAffiliates of similar stature and position; or\n(c) any other failure by ATC or Holding or any of their Affiliates to comply in any material respect with any material provision of the\nStockholder Agreement;\nthat (i) is incapable of cure, or (ii) has not been cured or remedied promptly (and in any event within thirty (30) days) after written notice to the\nboard of directors of ATC from Optionee specifying in reasonable detail the nature of such assignment, action, reduction or failure.\nImmediate Family shall mean spouses, children and parents, whether related by blood, adoption or marriage.\nIntellectual Property shall mean, with respect to Optionee, any and all research, information, inventions, designs, procedures, developments,\ndiscoveries, improvements, patents and applications therefor, trademarks and applications therefor, service marks, trade names, copyrights and\napplications therefor, trade secrets, drawing, plans, systems, methods, specifications, computer software programs, tapes, discs and related data\nprocessing software (including object and source codes) owned by Optionee or in which he has an interest and all other manufacturing, engineering,\ntechnical, research and development data and know-how made, conceived, developed and/or acquired by Optionee solely or jointly with others\nduring the period of his employment with ATC or any of its Affiliates or within one year thereafter, which relate to the manufacture, production or\nprocessing of any products developed or sold by ATC or any of its Affiliates during the term of this Agreement or which are within the scope of or\nusable in connection with ATC’s or any of its Affiliates’ business as it may, from time to time, hereafter be conducted or proposed to be conducted.\nOptionee Forfeiture Event shall mean any of the following acts (other than as a result of the death or Disability of Optionee) committed by\nOptionee:\n(a) any willful or gross failure or refusal to perform, or any willful or gross misconduct in the performance of, any significant portion of\nhis obligations, duties and responsibilities as an\n2\nemployee of Holding, the effect of which has been or reasonably could be expected to materially and adversely affect the business of ATC or\nany of its Affiliates, as determined in good faith by the ATC Board of Directors, and that (i) is incapable of cure, or (ii) has not been cured or\nremedied as promptly as is reasonably possible (and in any event within thirty (30) days) after written notice from the Holding Board to\nOptionee specifying in reasonable detail the nature of such failure, refusal or misconduct, or\n(b) material breach of the provisions of Section 2, 3 or 4 of this Agreement which (i) is incapable of cure, or (ii) has not been cured or\nremedied promptly (and in any event within thirty (30) days) after written notice from the Holding Board to Optionee specifying in reasonable\ndetail the nature of such breach, or\n(c) Optionee is convicted of, pleads guilty or nolo contendero to any act of fraud, embezzlement or misappropriation or other crime\ninvolving moral turpitude in connection with his employment by Holding or any of its Affiliates intended by Optionee to result in substantial\npersonal enrichment and which adversely affects the business of ATC or any of its Affiliates, all as determined in good faith by the ATC Board\nof Directors.\nProscribed Activity shall mean any and all activities related to (a) the construction, ownership, operation, leasing or management of\ntelecommunications or broadcast towers, (b) providing network development services or components for wireless service providers or broadcasters,\n(c) providing high speed Internet access and related services via satellite to foreign-based Internet service providers, telephone or other\ntelecommunciations companies, and other businesses, or (d) providing other satellite and Internet protocol network transmission services.\nRestricted Period shall mean a period commencing with the date hereof and terminating the latest of (a) one year after exercise of the put (or\ncall) provided for in Section 6 of the Stockholder Agreement, (b) two years after the sooner to occur of (i) an Optionee Forfeiture Event, or (ii) the\nresignation by Optionee from all positions with ATC and each of its subsidiaries other than for Good Reason, or (c) one year after the resignation by\nOptionee from all positions with ATC and each of its subsidiaries for the reason set forth in paragraph (d) of the definition of Good Reason.\nSection 2. Confidentiality. Optionee shall not, either during the Restricted Period or thereafter, reveal or disclose to any person outside ATC\nand its subsidiaries or use for his own benefit, without ATC’s specific prior written authorization, whether by private communication or by public\naddress or publication or otherwise, any Confidential Information. All originals and copies of any Confidential Information, relating to the business\nof ATC or any of its subsidiaries, however and whenever produced, shall be the sole property of ATC and its subsidiaries, not to be removed from\nthe premises or custody of ATC or its subsidiaries without in each instance first obtaining prior written consent or authorization of ATC.\nSection 3. Disclosure and Assignment of Intellectual Property. Optionee shall promptly disclose to ATC and any successor or assign, and grant\nto ATC, and its successors and assigns (without any separate remuneration or compensation other than that received by him from time to time in the\ncourse of his employment) his entire right, title and interest throughout the world in and to all Intellectual Property. It is understood and agreed that\nOptionee has heretofore disclosed to ATC, and assigned to it, all Intellectual Property now known to him over which he has any control. Optionee\nagrees to execute all appropriate patent applications securing all United States and foreign patents on all Intellectual Property, and to do, execute and\ndeliver any and all acts and instruments that may be necessary or proper to vest all Intellectual Property in ATC or its nominee or designee and to\nenable ATC, or its nominee or designee, to obtain all such patents; and Optionee agrees to render to ATC, or its nominee or designee, all such\n3\nreasonable assistance as it may require in the prosecution of all such patent applications and applications for the reissue of such patents, and in the\nprosecution or defense of all interferences which may be declared involving any of said patent applications or patents, but the expense of all such\nassignments and patent applications, or all other proceedings referred to herein above, shall be borne by ATC. Optionee shall be entitled to fair and\nreasonable compensation for any such assistance requested by ATC or its nominee or designee and furnished by him after the termination of his\nemployment.\nSection 4. Restriction. ATC through its subsidiaries intends to continue and expand the business heretofore conducted by it and them and it and\nin connection therewith ATC and its subsidiaries have invested and may in the future be required to invest substantial sums of money, directly or\nindirectly, and as Optionee recognizes that ATC would be substantially injured by Optionee disclosing to others, or by Optionee using for his own\nbenefit, any Intellectual Property or any other Confidential Information he has obtained or shall obtain from ATC or any of its subsidiaries, or which\nhe may now possess and which he has made available to ATC or any of its subsidiaries, Optionee agrees that during the Restricted Period:\n(a) Neither he nor any member of his Immediate Family will be interested, directly or indirectly, as an investor in any other Entity, business\nor enterprise within the Covered Territory, which is engaged in any Proscribed Activity (except as an investor in securities (i) issued by\nATC or any of its subsidiaries or (ii) listed on a national securities exchange or actively traded over the counter so long as such\ninvestments are in amounts not significant as compared to his total investments and do not exceed one percent (1%) of the outstanding\nsecurities of the issuer of the same class or issue); and\n(b) Other than in connection with his serving as an employee of ATC and its subsidiaries, he will not, directly or indirectly, for his own\naccount or as employee, officer, director, partner, trustee, principal, member, joint venturer, agent, adviser, consultant or otherwise,\nengage within the Covered Territory, in any phase of any Proscribed Activity.\nOptionee further agrees that during the Restricted Period, he will not, directly or indirectly, solicit business for a Proscribed Activity from any\nPerson, business or enterprise which is, or proposes to be, a customer of ATC or any of its subsidiaries or any of their respective successors or\nassigns, or from any Person, business or enterprise with which ATC or any of its subsidiaries or any of their respective successors or assigns is\nnegotiating or holding discussion or to which it has made a proposal at the time of such termination, induce any such Person, business or enterprise\nnot to undertake, or to curtail or cancel business with ATC or any of its subsidiaries or any of their respective successors or assigns, induce or\nattempt to induce any employee of ATC or any of its subsidiaries or any of their respective successors or assigns to terminate his employment\ntherewith, or intentionally divulge or utilize for the direct or indirect benefit (financial or other) of himself or any other Person, business or\nenterprise, any Intellectual Property or any Confidential Information he has obtained as an employee and/or stockholder of ATC or any of its\nsubsidiaries.\nThis Agreement shall be deemed to consist of a series of separate covenants, one for each line of business carried on by ATC and its\nsubsidiaries and each region included within the geographic areas referred to in this Section. Optionee and ATC are of the belief that the Restricted\nPeriod, the Proscribed Activity and the Covered Territory herein specified are reasonable, in light of the circumstances as they exist on the date upon\nwhich this Agreement has been executed, including without limitation the nature of the business in which ATC and its subsidiaries are engaged and\nproposes to engage, the state of their product development and Optionee’s knowledge of such business and his prior affiliations with and interest in\nATC. However, if such period, activity or area should be adjudged unreasonable in any Legal Action, whether at law or in equity, then the Restricted\nPeriod shall be reduced by such period of time, the\n4\nProscribed Activity shall be reduced by such activities, or the Covered Territory shall be reduced by such area, or any combination thereof, as are\ndeemed unreasonable, so that this covenant may be enforced in such area, with respect to such activities and during such period of time as is\nadjudged to be reasonable.\nSection 5. Security for Optionee Obligations. Optionee’s obligations under this Agreement shall be secured by twenty percent (20%) of the\ngross sale proceeds (before deduction of commissions, discounts, brokerage fees or other fees and expenses) of (a) all shares of capital stock and\nother securities issued by Holding to Optionee, and (b) all shares of capital stock and other securities issued by Holding received by Optionee\npursuant to any distribution to him or otherwise acquired by him. Optionee and ATC agree that all such proceeds shall be held by an escrow agent or\nagents reasonably acceptable to Optionee and ATC and subject to the terms and conditions of an escrow agreement to be executed by ATC and\nOptionee and reasonably satisfactory to ATC and Optionee.\nSection 6. Miscellaneous Provisions.\n(a) Assignment; Successors and Assigns. In the event that ATC shall be merged with, or consolidated into, any other Entity, or in the event that\nit shall sell and transfer substantially all of its assets to another Entity, the terms of this Agreement shall inure to the benefit of, and be assumed by,\nthe Entity resulting from such merger or consolidation, or to which ATC’s assets shall be sold and transferred. This Agreement shall not be\nassignable by Optionee, but it shall be binding upon his heirs, executors, administrators and legal representatives to the extent they constitute\nmembers of his Immediate Family. Nothing in this Agreement expressed or implied is intended to and shall not be construed to confer upon or create\nin any person (other than the parties hereto and their permitted successors and assigns) any rights or remedies under or by reason of this Agreement.\n(b) Specific Performance; Other Rights and Remedies. Optionee recognizes and agrees that ATC’s remedy at law for any breach of the\nprovisions of this Agreement, including without limitation Sections 2, 3, or 4, would be inadequate, and he agrees that for breach of such provisions,\nATC shall, in addition to such other remedies as may be available to it at law or in equity or as provided in this Agreement, be entitled to injunctive\nrelief and to enforce its rights by an action for specific performance to the extent permitted by applicable law. Without limiting the generality of the\nforegoing, in the event of a breach or threatened breach by Optionee of the provisions of this Agreement, ATC shall be entitled to an injunction\nrestraining Optionee from soliciting employees, customers or suppliers, or from disclosing, in whole or in part, any Confidential Information, or\nfrom rendering any services to any Person to whom such information has been disclosed, or is threatened to be disclosed, from engaging,\nparticipating or otherwise being connected with any business described in Section 4 or from otherwise violating the terms of this Agreement.\nNothing herein contained shall be construed as prohibiting each party from pursuing any other remedies available to it pursuant to the provisions of,\nand subject to the limitations contained in, this Agreement for such breach or threatened breach; provided, however, that none of the parties shall\npursue, and each party hereby waives, any punitive, indirect, special, incidental, exemplary, consequential or similar damages arising out of this\nAgreement (including without limitation damages for diminution in value and loss of anticipated profits) and the multiplied portion of damages.\n(c) Entire Agreement. This Agreement constitutes the entire agreement between ATC and Optionee with respect to the subject matter hereof,\nand supersedes all prior agreements, arrangements, covenants, promises, conditions, understandings, inducements, representations and negotiations,\nexpressed or implied, oral or written, among them as to such subject matter.\n(d) Waivers; Amendments. Any provision of this Agreement to the contrary notwithstanding, changes in or additions to this Agreement may be\nmade, or compliance with any term, covenant, agreement, condition or provision set forth herein may be omitted or waived (either generally or in a\n5\nparticular instance and either retroactively or prospectively) with, but only with, the consent in writing of the parties hereto. Any consent may be\ngiven subject to satisfaction of conditions stated therein. The failure to insist upon the strict provisions of any covenant, term, condition or other\nprovision of this Agreement or to exercise any right or remedy thereunder shall not constitute a waiver of any such covenant, term, condition or other\nprovision thereof or default in connection therewith. The waiver of any covenant, term, condition or other provision thereof or default thereunder\nshall not affect or alter this Agreement in any other respect, and each and every covenant, term, condition or other provision of this Agreement shall,\nin such event, continue in full force and effect, except as so waived, and shall be operative with respect to any other then existing or subsequent\ndefault in connection therewith.\n(e) Notices. All notices and other communications which by any provision of this Agreement are required or permitted to be given shall be\ngiven in writing and shall be effective (i) five (5) days after being mailed by first-class, express mail, postage prepaid, (ii) the next day when sent by\novernight by recognized mail courier service, (iii) upon confirmation when sent by telex, telegram, telecopy or other similar form of rapid\ntransmission, confirmed by mailing (by first class or express mail, postage prepaid, or recognized overnight mail courier service) written\nconfirmation at substantially the same time as such rapid transmission, (iv) upon delivery personally delivered to an officer of the receiving party, or\n(v) upon delivery personally delivered to the Optionee. All such communications shall be mailed, set or delivered as set forth below or at such other\naddresses as the party entitled thereto shall have designated by notice as herein provided.\n(i) if to Holding or ATC, at 116 Huntington Avenue, Boston, Massachusetts 02116 Attention: Chief Executive Officer and Chief\nFinancial Officer, Telecopier No.: (617) 375-7575 with a copy (which shall not constitute notice to ATC or Holding) to Sullivan & Worcester\nLLP, One Post Office Square, Boston, Massachusetts 02109, Attention: William J. Curry, Esq., Telecopier No.: (617) 338-2880) and\n(ii) if to Optionee, at\n, Telecopier No.\n.\n(f) Severability. If any provision of this Agreement shall be held or deemed to be, or shall in fact be, invalid, inoperative, illegal or\nunenforceable as applied to any particular case in any jurisdiction or jurisdictions, or in all jurisdictions or in all cases, because of the conflicting of\nany provision with any constitution or statute or rule of public policy or for any other reason, such circumstance shall not have the effect of rendering\nthe provision or provisions in question invalid, inoperative, illegal or unenforceable in any other jurisdiction or in any other case or circumstance or\nof rendering any other provision or provisions herein contained invalid, inoperative, illegal or unenforceable to the extent that such other provisions\nare not themselves actually in conflict with such constitution, statute or rule of public policy, but this Agreement shall be reformed and construed in\nany such jurisdiction or case as if such invalid, inoperative, illegal or unenforceable provision had never been contained herein and such provision\nreformed so that it would be valid, operative and enforceable to the maximum extent permitted in such jurisdiction or in such case, except when such\nreformation and construction could operate as an undue hardship on either party, or constitute a substantial deviation from the general intent and\npurpose of such party as reflected in this Agreement. The parties shall endeavor in good faith negotiations to replace the invalid, inoperative, illegal\nor unenforceable provisions with valid, operative, legal and enforceable provisions the economic effect of which comes as close as possible to that of\nthe invalid, inoperative, illegal or unenforceable provisions.\n(g) Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same instrument,\n6\nbinding upon all the parties hereto. In pleading or proving any provision of this Agreement, it shall not be necessary to produce more than one of\nsuch counterparts.\n(h) Section Headings. The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or\ninterpretation of this Agreement.\n(i) Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the applicable laws of\nthe United States of America and the domestic substantive laws of the State of Georgia without giving effect to any choice or conflict of laws\nprovision or rule that would cause the application of domestic substantive laws of any other jurisdiction. Anything in this Agreement to the contrary\nnotwithstanding, in the event of any dispute between the parties which results in a Legal Action, the prevailing party shall be entitled to receive from\nthe non-prevailing party reimbursement for reasonable legal fees and expenses incurred by such prevailing party in such Legal Action.\n(j) Further Acts. Each party agrees that at any time, and from time to time, before and after the consummation of the transactions contemplated\nby this Agreement, it will do all such things and execute and deliver all such agreements, assignments, instruments, other documents and assurances,\nas any other party or its counsel reasonably deems necessary or desirable in order to carry out the terms and conditions of this Agreement and the\ntransactions contemplated hereby or to facilitate the enjoyment of any of the rights created hereby or to be created hereunder.\n(k) Gender. Whenever used herein the singular number shall include the plural, the plural shall include the singular, and the use of any gender\nshall include all genders.\n(l) Consultation with Counsel; No Representations. Optionee agrees and acknowledges that he has had a full and complete opportunity to\nconsult with counsel of his own choosing concerning the terms, enforceability and implications of this Agreement, and that ATC has made no\nrepresentations or warranties to him concerning the terms, enforceability or implications of this Agreement other than as are reflected in this\nAgreement.\nIN WITNESS WHEREOF, the parties hereto have executed this Noncompetition and Confidentiality Agreement, all pursuant to authority\nheretofore granted, as of the date and year first above written.\nAmerican Tower Corporation\nBy: /s/ James D. Taiclet\nName: James D. Taiclet\nTitle: President and CEO\n/s/ William H. Hess\nOptionee\nWilliam H. Hess\n7	EX-10.10 2 dex1010.htm NONCOMPETITION AND CONFIDENTIALITY AGREEMENT, WILLIAM H. HESS\nExhibit 10.10\nNONCOMPETITION AND CONFIDENTIALITY AGREEMENT\nThis Agreement (this “Agreement”) made as of January 1, 2004, by and between American Tower Corporation, a Delaware corporation\n(“ATC”), and William H. Hess (“Optionee”), an individual residing at\nWHEREAS, ATC, American Tower International, Inc., a Delaware corporation (“ATC International”), and ATC South America Holding Corp,\na Delaware corporation (“Holding”), are parties to a Stockholder/Optionee Agreement, dated as of January 1, 2004, and of which Optionee executed\na counterpart on January 1, 2004 (collectively, the “Stockholder Agreement”), pursuant to which Holding will issue to Optionee options to purchase\nshares of its Common Stock, par value $.01 per share; and\nWHEREAS, Optionee is an employee of ATC or one of its subsidiaries and will perform services for Holding;\nNOW, THEREFORE, in consideration of the consummation of the transactions contemplated by the Stockholder Agreement, the sum of One\nDollar ($1.00), the material covenants and agreements contained herein, and other good and valuable consideration, the receipt, adequacy and\nsufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do covenant and agree as follows:\nSection 1. Definitions. Terms used in this Agreement which are not defined herein but which are defined in the Stockholder Agreement shall\nhave the respective meanings so defined.\nConfidential Information shall mean any and all information (excluding information in the public domain other than as a direct or indirect\nresult of any breach by Optionee of the provisions of this Agreement) related to the business, operations, management, assets, property, plans or\nprospects, condition, financial or other, or results of operation of ATC, any Affiliate of ATC or any of their respective successors or assigns,\nincluding without limitation:\n(a) the whole or any portion or phase of any business plans, financial information, purchasing data, supplier or customer data,\naccounting data, or computer programs (including source and object codes), tapes, discs, data, software or other information;\n(b)  the whole or any portion or phase of any marketing or sales information or technique, sales records, customer lists, supplier lists,\nprices, sales projections or other listings of names, addresses, or telephone numbers, or other sales information;\n(© the whole or any portion or phase of any employee payroll, fringe benefit, salary, bonus, commission or other form of\ncompensation information and all employee personnel information, including information relating to performance evaluations,\ndiscipline, employee conduct, complaints and other matters relating to employment of any Person; and\n(d)  Intellectual Property;\nwhether or not any of the foregoing has been made, developed and/or conceived by Optionee or by others in the employ of any such Person.\nNotwithstanding the foregoing, the term “Confidential Information”\nshall not include and information reasonably necessary for the conducting of any activity expressly excluded from the definition of “Proscribed\nActivity” hereunder.\nCovered Territory shall mean (a) while Optionee is employed by ATC or any of its Affiliates, North, South and Latin America, Europe and all\nother areas in which ATC or any of its Affiliates has invested or proposes to invest; and (b) thereafter, North America and any other markets where\nOptionee has been or is involved or is negotiating a proposed investment, acquisition or other transaction on behalf of ATC or any of its Affiliates.\nGood Reason shall mean:\n(a) the assignment to Optionee of any duties inconsistent in any material respect with his current position, authority, duties or\nresponsibilities or any other action by ATC or Holding or any of their Affiliates that results in a diminution, in any material respect, in\nsuch position, authority, duties or responsibilities; or\n(b) a material reduction in Optionee’s compensation or other benefits (taking into account the compensation and other benefits from ATC or\nHolding and their Affiliates from whom he may, from time to time, receive compensation), the result of which is to place Optionee in a\nmaterially less favorable position as to such compensation and benefits compared to other employees of ATC or Holding and their\nAffiliates of similar stature and position; or\n(c) any other failure by ATC or Holding or any of their Affiliates to comply in any material respect with any material provision of the\nStockholder Agreement;\nthat (i) is incapable of cure, or (ii) has not been cured or remedied promptly (and in any event within thirty (30) days) after written notice to the\nboard of directors of ATC from Optionee specifying in reasonable detail the nature of such assignment, action, reduction or failure.\nImmediate Family shall mean spouses, children and parents, whether related by blood, adoption or marriage.\nIntellectual Property shall mean, with respect to Optionee, any and all research, information, inventions, designs, procedures, developments,\ndiscoveries, improvements, patents and applications therefor, trademarks and applications therefor, service marks, trade names, copyrights and\napplications therefor, trade secrets, drawing, plans, systems, methods, specifications, computer software programs, tapes, discs and related data\nprocessing software (including object and source codes) owned by Optionee or in which he has an interest and all other manufacturing, engineering,\ntechnical, research and development data and know-how made, conceived, developed and/or acquired by Optionee solely or jointly with others\nduring the period of his employment with ATC or any of its Affiliates or within one year thereafter, which relate to the manufacture, production or\nprocessing of any products developed or sold by ATC or any of its Affiliates during the term of this Agreement or which are within the scope of or\nusable in connection with ATC’s or any of its Affiliates’ business as it may, from time to time, hereafter be conducted or proposed to be conducted.\nOptionee Forfeiture Event shall mean any of the following acts (other than as a result of the death or Disability of Optionee) committed by\nOptionee:\n(a) any willful or gross failure or refusal to perform, or any willful or gross misconduct in the performance of, any significant portion of\nhis obligations, duties and responsibilities as an\nemployee of Holding, the effect of which has been or reasonably could be expected to materially and adversely affect the business of ATC or\nany of its Affiliates, as determined in good faith by the ATC Board of Directors, and that (i) is incapable of cure, or (ii) has not been cured or\nremedied as promptly as is reasonably possible (and in any event within thirty (30) days) after written notice from the Holding Board to\nOptionee specifying in reasonable detail the nature of such failure, refusal or misconduct, or\n(b) material breach of the provisions of Section 2, 3 or 4 of this Agreement which (i) is incapable of cure, or (ii) has not been cured or\nremedied promptly (and in any event within thirty (30) days) after written notice from the Holding Board to Optionee specifying in reasonable\ndetail the nature of such breach, or\n(c) Optionee is convicted of, pleads guilty or nolo contendero to any act of fraud, embezzlement or misappropriation or other crime\ninvolving moral turpitude in connection with his employment by Holding or any of its Affiliates intended by Optionee to result in substantial\npersonal enrichment and which adversely affects the business of ATC or any of its Affiliates, all as determined in good faith by the ATC Board\nof Directors.\nProscribed Activity shall mean any and all activities related to (a) the construction, ownership, operation, leasing or management of\ntelecommunications or broadcast towers, (b) providing network development services or components for wireless service providers or broadcasters,\n(c) providing high speed Internet access and related services via satellite to foreign-based Internet service providers, telephone or other\ntelecommunciations companies, and other businesses, or (d) providing other satellite and Internet protocol network transmission services.\nRestricted Period shall mean a period commencing with the date hereof and terminating the latest of (a) one year after exercise of the put (or\ncall) provided for in Section 6 of the Stockholder Agreement, (b) two years after the sooner to occur of (i) an Optionee Forfeiture Event, or (ii) the\nresignation by Optionee from all positions with ATC and each of its subsidiaries other than for Good Reason, or (c) one year after the resignation by\nOptionee from all positions with ATC and each of its subsidiaries for the reason set forth in paragraph (d) of the definition of Good Reason.\nSection 2. Confidentiality. Optionee shall not, either during the Restricted Period or thereafter, reveal or disclose to any person outside ATC\nand its subsidiaries or use for his own benefit, without ATC’s specific prior written authorization, whether by private communication or by public\naddress or publication or otherwise, any Confidential Information. All originals and copies of any Confidential Information, relating to the business\nof ATC or any of its subsidiaries, however and whenever produced, shall be the sole property of ATC and its subsidiaries, not to be removed from\nthe premises or custody of ATC or its subsidiaries without in each instance first obtaining prior written consent or authorization of ATC.\nSection 3. Disclosure and Assignment of Intellectual Property. Optionee shall promptly disclose to ATC and any successor or assign, and grant\nto ATC, and its successors and assigns (without any separate remuneration or compensation other than that received by him from time to time in the\ncourse of his employment) his entire right, title and interest throughout the world in and to all Intellectual Property. It is understood and agreed that\nOptionee has heretofore disclosed to ATC, and assigned to it, all Intellectual Property now known to him over which he has any control. Optionee\nagrees to execute all appropriate patent applications securing all United States and foreign patents on all Intellectual Property, and to do, execute and\ndeliver any and all acts and instruments that may be necessary or proper to vest all Intellectual Property in ATC or its nominee or designee and to\nenable ATC, or its nominee or designee, to obtain all such patents; and Optionee agrees to render to ATC, or its nominee or designee, all such\n3\nreasonable assistance as it may require in the prosecution of all such patent applications and applications for the reissue of such patents, and in the\nprosecution or defense of all interferences which may be declared involving any of said patent applications or patents, but the expense of all such\nassignments and patent applications, or all other proceedings referred to herein above, shall be borne by ATC. Optionee shall be entitled to fair and\nreasonable compensation for any such assistance requested by ATC or its nominee or designee and furnished by him after the termination of his\nemployment.\nSection 4. Restriction. ATC through its subsidiaries intends to continue and expand the business heretofore conducted by it and them and it and\nin connection therewith ATC and its subsidiaries have invested and may in the future be required to invest substantial sums of money, directly or\nindirectly, and as Optionee recognizes that ATC would be substantially injured by Optionee disclosing to others, or by Optionee using for his own\nbenefit, any Intellectual Property or any other Confidential Information he has obtained or shall obtain from ATC or any of its subsidiaries, or which\nhe may now possess and which he has made available to ATC or any of its subsidiaries, Optionee agrees that during the Restricted Period:\n(a) Neither he nor any member of his Immediate Family will be interested, directly or indirectly, as an investor in any other Entity, business\nor enterprise within the Covered Territory, which is engaged in any Proscribed Activity (except as an investor in securities (i) issued by\nATC or any of its subsidiaries or (ii) listed on a national securities exchange or actively traded over the counter so long as such\ninvestments are in amounts not significant as compared to his total investments and do not exceed one percent (1%) of the outstanding\nsecurities of the issuer of the same class or issue); and\n(b) Other than in connection with his serving as an employee of ATC and its subsidiaries, he will not, directly or indirectly, for his own\naccount or as employee, officer, director, partner, trustee, principal, member, joint venturer, agent, adviser, consultant or otherwise,\nengage within the Covered Territory, in any phase of any Proscribed Activity.\nOptionee further agrees that during the Restricted Period, he will not, directly or indirectly, solicit business for a Proscribed Activity from any\nPerson, business or enterprise which is, or proposes to be, a customer of ATC or any of its subsidiaries or any of their respective successors or\nassigns, or from any Person, business or enterprise with which ATC or any of its subsidiaries or any of their respective successors or assigns is\nnegotiating or holding discussion or to which it has made a proposal at the time of such termination, induce any such Person, business or enterprise\nnot to undertake, or to curtail or cancel business with ATC or any of its subsidiaries or any of their respective successors or assigns, induce or\nattempt to induce any employee of ATC or any of its subsidiaries or any of their respective successors or assigns to terminate his employment\ntherewith, or intentionally divulge or utilize for the direct or indirect benefit (financial or other) of himself or any other Person, business or\nenterprise, any Intellectual Property or any Confidential Information he has obtained as an employee and/or stockholder of ATC or any of its\nsubsidiaries.\nThis Agreement shall be deemed to consist of a series of separate covenants, one for each line of business carried on by ATC and its\nsubsidiaries and each region included within the geographic areas referred to in this Section. Optionee and ATC are of the belief that the Restricted\nPeriod, the Proscribed Activity and the Covered Territory herein specified are reasonable, in light of the circumstances as they exist on the date upon\nwhich this Agreement has been executed, including without limitation the nature of the business in which ATC and its subsidiaries are engaged and\nproposes to engage, the state of their product development and Optionee’s knowledge of such business and his prior affiliations with and interest in\nATC. However, if such period, activity or area should be adjudged unreasonable in any Legal Action, whether at law or in equity, then the Restricted\nPeriod shall be reduced by such period of time, the\nProscribed Activity shall be reduced by such activities, or the Covered Territory shall be reduced by such area, or any combination thereof, as are\ndeemed unreasonable, so that this covenant may be enforced in such area, with respect to such activities and during such period of time as is\nadjudged to be reasonable.\nSection 5. Security for Optionee Obligations. Optionee’s obligations under this Agreement shall be secured by twenty percent (20%) of the\ngross sale proceeds (before deduction of commissions, discounts, brokerage fees or other fees and expenses) of (a) all shares of capital stock and\nother securities issued by Holding to Optionee, and (b) all shares of capital stock and other securities issued by Holding received by Optionee\npursuant to any distribution to him or otherwise acquired by him. Optionee and ATC agree that all such proceeds shall be held by an escrow agent or\nagents reasonably acceptable to Optionee and ATC and subject to the terms and conditions of an escrow agreement to be executed by ATC and\nOptionee and reasonably satisfactory to ATC and Optionee.\nSection 6. Miscellaneous Provisions.\n(a) Assignment; Successors and Assigns. In the event that ATC shall be merged with, or consolidated into, any other Entity, or in the event that\nit shall sell and transfer substantially all of its assets to another Entity, the terms of this Agreement shall inure to the benefit of, and be assumed by,\nthe Entity resulting from such merger or consolidation, or to which ATC’s assets shall be sold and transferred. This Agreement shall not be\nassignable by Optionee, but it shall be binding upon his heirs, executors, administrators and legal representatives to the extent they constitute\nmembers of his Immediate Family. Nothing in this Agreement expressed or implied is intended to and shall not be construed to confer upon or create\nin any person (other than the parties hereto and their permitted successors and assigns) any rights or remedies under or by reason of this Agreement.\n(b) Specific Performance; Other Rights and Remedies. Optionee recognizes and agrees that ATC’s remedy at law for any breach of the\nprovisions of this Agreement, including without limitation Sections 2, 3, or 4, would be inadequate, and he agrees that for breach of such provisions,\nATC shall, in addition to such other remedies as may be available to it at law or in equity or as provided in this Agreement, be entitled to injunctive\nrelief and to enforce its rights by an action for specific performance to the extent permitted by applicable law. Without limiting the generality of the\nforegoing, in the event of a breach or threatened breach by Optionee of the provisions of this Agreement, ATC shall be entitled to an injunction\nrestraining Optionee from soliciting employees, customers or suppliers, or from disclosing, in whole or in part, any Confidential Information, or\nfrom rendering any services to any Person to whom such information has been disclosed, or is threatened to be disclosed, from engaging,\nparticipating or otherwise being connected with any business described in Section 4 or from otherwise violating the terms of this Agreement.\nNothing herein contained shall be construed as prohibiting each party from pursuing any other remedies available to it pursuant to the provisions of,\nand subject to the limitations contained in, this Agreement for such breach or threatened breach; provided, however, that none of the parties shall\npursue, and each party hereby waives, any punitive, indirect, special, incidental, exemplary, consequential or similar damages arising out of this\nAgreement (including without limitation damages for diminution in value and loss of anticipated profits) and the multiplied portion of damages.\n(c) Entire Agreement. This Agreement constitutes the entire agreement between ATC and Optionee with respect to the subject matter hereof,\nand supersedes all prior agreements, arrangements, covenants, promises, conditions, understandings, inducements, representations and negotiations,\nexpressed or implied, oral or written, among them as to such subject matter.\n(d) Waivers; Amendments. Any provision of this Agreement to the contrary notwithstanding, changes in or additions to this Agreement may be\nmade, or compliance with any term, covenant, agreement, condition or provision set forth herein may be omitted or waived (either generally or in a\n5\nparticular instance and either retroactively or prospectively) with, but only with, the consent in writing of the parties hereto. Any consent may be\ngiven subject to satisfaction of conditions stated therein. The failure to insist upon the strict provisions of any covenant, term, condition or other\nprovision of this Agreement or to exercise any right or remedy thereunder shall not constitute a waiver of any such covenant, term, condition or other\nprovision thereof or default in connection therewith. The waiver of any covenant, term, condition or other provision thereof or default thereunder\nshall not affect or alter this Agreement in any other respect, and each and every covenant, term, condition or other provision of this Agreement shall,\nin such event, continue in full force and effect, except as so waived, and shall be operative with respect to any other then existing or subsequent\ndefault in connection therewith.\n(e) Notices. All notices and other communications which by any provision of this Agreement are required or permitted to be given shall be\ngiven in writing and shall be effective (i) five (5) days after being mailed by first-class, express mail, postage prepaid, (ii) the next day when sent by\novernight by recognized mail courier service, (iii) upon confirmation when sent by telex, telegram, telecopy or other similar form of rapid\ntransmission, confirmed by mailing (by first class or express mail, postage prepaid, or recognized overnight mail courier service) written\nconfirmation at substantially the same time as such rapid transmission, (iv) upon delivery personally delivered to an officer of the receiving party, or\n(v) upon delivery personally delivered to the Optionee. All such communications shall be mailed, set or delivered as set forth below or at such other\naddresses as the party entitled thereto shall have designated by notice as herein provided.\n(i) if to Holding or ATC, at 116 Huntington Avenue, Boston, Massachusetts 02116 Attention: Chief Executive Officer and Chief\nFinancial Officer, Telecopier No.: (617) 375-7575 with a copy (which shall not constitute notice to ATC or Holding) to Sullivan & Worcester\nLLP, One Post Office Square, Boston, Massachusetts 02109, Attention: William J. Curry, Esq., Telecopier No.: (617) 338-2880) and\n(ii) if to Optionee, at , Telecopier No.\n(f) Severability. If any provision of this Agreement shall be held or deemed to be, or shall in fact be, invalid, inoperative, illegal or\nunenforceable as applied to any particular case in any jurisdiction or jurisdictions, or in all jurisdictions or in all cases, because of the conflicting of\nany provision with any constitution or statute or rule of public policy or for any other reason, such circumstance shall not have the effect of rendering\nthe provision or provisions in question invalid, inoperative, illegal or unenforceable in any other jurisdiction or in any other case or circumstance or\nof rendering any other provision or provisions herein contained invalid, inoperative, illegal or unenforceable to the extent that such other provisions\nare not themselves actually in conflict with such constitution, statute or rule of public policy, but this Agreement shall be reformed and construed in\nany such jurisdiction or case as if such invalid, inoperative, illegal or unenforceable provision had never been contained herein and such provision\nreformed so that it would be valid, operative and enforceable to the maximum extent permitted in such jurisdiction or in such case, except when such\nreformation and construction could operate as an undue hardship on either party, or constitute a substantial deviation from the general intent and\npurpose of such party as reflected in this Agreement. The parties shall endeavor in good faith negotiations to replace the invalid, inoperative, illegal\nor unenforceable provisions with valid, operative, legal and enforceable provisions the economic effect of which comes as close as possible to that of\nthe invalid, inoperative, illegal or unenforceable provisions.\n(g) Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same instrument,\nbinding upon all the parties hereto. In pleading or proving any provision of this Agreement, it shall not be necessary to produce more than one of\nsuch counterparts.\n(h) Section Headings. The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or\ninterpretation of this Agreement.\n(i) Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the applicable laws of\nthe United States of America and the domestic substantive laws of the State of Georgia without giving effect to any choice or conflict of laws\nprovision or rule that would cause the application of domestic substantive laws of any other jurisdiction. Anything in this Agreement to the contrary\nnotwithstanding, in the event of any dispute between the parties which results in a Legal Action, the prevailing party shall be entitled to receive from\nthe non-prevailing party reimbursement for reasonable legal fees and expenses incurred by such prevailing party in such Legal Action.\n(j) Further Acts. Each party agrees that at any time, and from time to time, before and after the consummation of the transactions contemplated\nby this Agreement, it will do all such things and execute and deliver all such agreements, assignments, instruments, other documents and assurances,\nas any other party or its counsel reasonably deems necessary or desirable in order to carry out the terms and conditions of this Agreement and the\ntransactions contemplated hereby or to facilitate the enjoyment of any of the rights created hereby or to be created hereunder.\n(k) Gender. Whenever used herein the singular number shall include the plural, the plural shall include the singular, and the use of any gender\nshall include all genders.\n \n(1) Consultation with Counsel; No Representations. Optionee agrees and acknowledges that he has had a full and complete opportunity to\nconsult with counsel of his own choosing concerning the terms, enforceability and implications of this Agreement, and that ATC has made no\nrepresentations or warranties to him concerning the terms, enforceability or implications of this Agreement other than as are reflected in this\nAgreement.\nIN WITNESS WHEREOF, the parties hereto have executed this Noncompetition and Confidentiality Agreement, all pursuant to authority\nheretofore granted, as of the date and year first above written.\nAmerican Tower Corporation\nBy: /s/ _James D. Taiclet\nName: James D. Taiclet\nTitle: President and CEO\n/s/_William H. Hess\nOptionee\nWilliam H. Hess	EX-10.10 2 lex1010.htm NONCOMPETITION AND CONFIDENTIALITY AGREEMENT, WILLIAM H. HESS\nExhibit 10.10\nNONCOMPETITION AND CONFIDENTIALITY AGREEMENT\nThis Agreement (this "Agreement") made as of January 1, 2004, by and between American Tower Corporation, a Delaware corporation\n("ATC"), and William H. Hess ("Optionee"), an individual residing at\nWHEREAS, ATC, American Tower International, Inc., a Delaware corporation ("ATC International"), and ATC South America Holding Corp,\na Delaware corporation ("Holding"), are parties to a Stockholder/Optionee Agreement, dated as of January 1, 2004, and of which Optionee executed\na counterpart on January 1, 2004 (collectively, the "Stockholder Agreement"), pursuant to which Holding will issue to Optionee options to purchase\nshares of its Common Stock, par value $.01 per share; and\nWHEREAS, Optionee is an employee of ATC or one of its subsidiaries and will perform services for Holding;\nNOW, THEREFORE, in consideration of the consummation of the transactions contemplated by the Stockholder Agreement, the sum of One\nDollar ($1.00), the material covenants and agreements contained herein, and other good and valuable consideration, the receipt, adequacy and\nsufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do covenant and agree as follows:\nSection 1. Definitions. Terms used in this Agreement which are not defined herein but which are defined in the Stockholder Agreement shall\nhave the respective meanings so defined.\nConfidential Information shall mean any and all information (excluding information in the public domain other than as a direct or indirect\nresult of any breach by Optionee of the provisions of this Agreement) related to the business, operations, management, assets, property, plans or\nprospects, condition, financial or other, or results of operation of ATC, any Affiliate of ATC or any of their respective successors or assigns,\nincluding without limitation:\n(a)\nthe whole or any portion or phase of any business plans, financial information, purchasing data, supplier or customer data,\naccounting data, or computer programs (including source and object codes), tapes, discs, data, software or other information;\n(b)\nthe whole or any portion or phase of any marketing or sales information or technique, sales records, customer lists, supplier lists,\nprices, sales projections or other listings of names, addresses, or telephone numbers, or other sales information;\n(c)\nthe whole or any portion or phase of any employee payroll, fringe benefit, salary, bonus, commission or other form of\ncompensation information and all employee personnel information, including information relating to performance evaluations,\ndiscipline, employee conduct, complaints and other matters relating to employment of any Person; and\n(d)\nIntellectual Property;\nwhether or not any of the foregoing has been made, developed and/or conceived by Optionee or by others in the employ of any such Person.\nNotwithstanding the foregoing, the term "Confidential Information"\nshall not include and information reasonably necessary for the conducting of any activity expressly excluded from the definition of "Proscribed\nActivity" hereunder.\nCovered Territory. shall mean (a) while Optionee is employed by ATC or any of its Affiliates, North, South and Latin America, Europe and all\nother areas in which ATC or any of its Affiliates has invested or proposes to invest; and (b) thereafter, North America and any other markets where\nOptionee has been or is involved or is negotiating a proposed investment, acquisition or other transaction on behalf of ATC or any of its Affiliates.\nGood Reason shall mean:\n(a) the assignment to Optionee of any duties inconsistent in any material respect with his current position, authority, duties or\nresponsibilities or any other action by ATC or Holding or any of their Affiliates that results in a diminution, in any material respect, in\nsuch position, authority, duties or responsibilities; or\n(b) a material reduction in Optionee's compensation or other benefits (taking into account the compensation and other benefits from ATC or\nHolding and their Affiliates from whom he may, from time to time, receive compensation), the result of which is to place Optionee in\na\nmaterially less favorable position as to such compensation and benefits compared to other employees of ATC or Holding and their\nAffiliates of similar stature and position; or\n(c)\nany other failure by ATC or Holding or any of their Affiliates to comply in any material respect with any material provision of the\nStockholder Agreement;\nthat (i) is incapable of cure, or (ii) has not been cured or remedied promptly (and in any event within thirty (30) days) after written notice to the\nboard of directors of ATC from Optionee specifying in reasonable detail the nature of such assignment, action, reduction or failure.\nImmediate Family. shall mean spouses, children and parents, whether related by blood, adoption or marriage.\nIntellectual Property. shall mean, with respect to Optionee, any and all research, information, inventions, designs, procedures, developments,\ndiscoveries, improvements, patents and applications therefor, trademarks and applications therefor, service marks, trade names, copyrights and\napplications therefor, trade secrets, drawing, plans, systems, methods, specifications, computer software programs, tapes, discs and related data\nprocessing software (including object and source codes) owned by Optionee or in which he has an interest and all other manufacturing, engineering,\ntechnical, research and development data and know-how made, conceived, developed and/or acquired by Optionee solely or jointly with others\nduring the period of his employment with ATC or any of its Affiliates or within one year thereafter, which relate to the manufacture, production\nor\nprocessing of any products developed or sold by ATC or any of its Affiliates during the term of this Agreement or which are within the scope of or\nusable in connection with ATC's or any of its Affiliates' business as it may, from time to time, hereafter be conducted or proposed to be conducted.\nOptionee Forfeiture Event shall mean any of the following acts (other than as a result of the death or Disability of Optionee) committed\nby\nOptionee:\n(a) any willful or gross failure or refusal to perform, or any willful or gross misconduct in the performance of, any significant portion of\nhis obligations, duties and responsibilities as an\n2\nemployee of Holding, the effect of which has been or reasonably could be expected to materially and adversely affect the business of ATC or\nany of its Affiliates, as determined in good faith by the ATC Board of Directors, and that (i) is incapable of cure, or (ii) has not been cured or\nremedied as promptly as is reasonably possible (and in any event within thirty (30) days) after written notice from the Holding Board to\nOptionee specifying in reasonable detail the nature of such failure, refusal or misconduct, or\n(b) material breach of the provisions of Section 2, 3 or 4 of this Agreement which (i) is incapable of cure, or (ii) has not been cured\nor\nremedied promptly (and in any event within thirty (30) days) after written notice from the Holding Board to Optionee specifying in reasonable\ndetail the nature of such breach, or\n(c) Optionee is convicted of, pleads guilty or nolo contendero to any act of fraud, embezzlement or misappropriation or other crime\ninvolving moral turpitude in connection with his employment by Holding or any of its Affiliates intended by Optionee to result in substantial\npersonal enrichment and which adversely affects the business of ATC or any of its Affiliates, all as determined in good faith by the ATC Board\nof Directors.\nProscribed Activity. shall mean any and all activities related to (a) the construction, ownership, operation, leasing or management of\ntelecommunications or broadcast towers, (b) providing network development services or components for wireless service providers or broadcasters,\n(c) providing high speed Internet access and related services via satellite to foreign-based Internet service providers, telephone or other\ntelecommunciations companies, and other businesses, or (d) providing other satellite and Internet protocol network transmission services.\nRestricted Period shall mean a period commencing with the date hereof and terminating the latest of (a) one year after exercise of the put (or\ncall) provided for in Section 6 of the Stockholder Agreement, (b) two years after the sooner to occur of (i) an Optionee Forfeiture Event, or (ii) the\nresignation by Optionee from all positions with ATC and each of its subsidiaries other than for Good Reason, or (c) one year after the resignation\nby\nOptionee from all positions with ATC and each of its subsidiaries for the reason set forth in paragraph (d) of the definition of Good Reason.\nSection 2. Confidentiality.. Optionee shall not, either during the Restricted Period or thereafter, reveal or disclose to any person outside ATC\nand its subsidiaries or use for his own benefit, without ATC's specific prior written authorization, whether by private communication or by public\naddress or publication or otherwise, any Confidential Information. All originals and copies of any Confidential Information relating to the business\nof ATC or any of its subsidiaries, however and whenever produced, shall be the sole property of ATC and its subsidiaries, not to be removed from\nthe premises or custody of ATC or its subsidiaries without in each instance first obtaining prior written consent or authorization of ATC.\nSection 3. Disclosure and Assignment of Intellectual Property. Optionee shall promptly disclose to ATC and any successor or assign, and grant\nto ATC, and its successors and assigns (without any separate remuneration or compensation other than that received by him from time to time in the\ncourse of his employment) his entire right, title and interest throughout the world in and to all Intellectual Property. It is understood and agreed that\nOptionee has heretofore disclosed to ATC, and assigned to it, all Intellectual Property now known to him over which he has any control. Optionee\nagrees to execute all appropriate patent applications securing all United States and foreign patents on all Intellectual Property, and to do, execute and\ndeliver any and all acts and instruments that may be necessary or proper to vest all Intellectual Property in ATC or its nominee or designee and\nto\nenable ATC, or its nominee or designee, to obtain all such patents; and Optionee agrees to render to ATC, or its nominee or designee, all such\n3\nreasonable assistance as it may require in the prosecution of all such patent applications and applications for the reissue of such patents, and in the\nprosecution or defense of all interferences which may be declared involving any of said patent applications or patents, but the expense of all such\nassignments and patent applications, or all other proceedings referred to herein above, shall be borne by ATC. Optionee shall be entitled to fair and\nreasonable compensation for any such assistance requested by ATC or its nominee or designee and furnished by him after the termination of his\nemployment.\nSection 4. Restriction. ATC through its subsidiaries intends to continue and expand the business heretofore conducted by it and them and it and\nin connection therewith ATC and its subsidiaries have invested and may in the future be required to invest substantial sums of money, directly\nor\nindirectly, and as Optionee recognizes that ATC would be substantially injured by Optionee disclosing to others, or by Optionee using for his own\nbenefit, any Intellectual Property or any other Confidential Information he has obtained or shall obtain from ATC or any of its subsidiaries, or which\nhe may now possess and which he has made available to ATC or any of its subsidiaries, Optionee agrees that during the Restricted Period:\n(a)\nNeither he nor any member of his Immediate Family will be interested, directly or indirectly, as an investor in any other Entity, business\nor enterprise within the Covered Territory, which is engaged in any Proscribed Activity (except as an investor in securities (i) issued by\nATC or any of its subsidiaries or (ii) listed on a national securities exchange or actively traded over the counter so long as such\ninvestments are in amounts not significant as compared to his total investments and do not exceed one percent (1%) of the outstanding\nsecurities of the issuer of the same class or issue); and\n(b)\nOther than in connection with his serving as an employee of ATC and its subsidiaries, he will not, directly or indirectly, for his own\naccount or as employee, officer, director, partner, trustee, principal, member, joint venturer, agent, adviser, consultant or otherwise,\nengage within the Covered Territory, in any phase of any Proscribed Activity.\nOptionee further agrees that during the Restricted Period, he will not, directly or indirectly, solicit business for a Proscribed Activity from any\nPerson, business or enterprise which is, or proposes to be, a customer of ATC or any of its subsidiaries or any of their respective successors or\nassigns, or from any Person, business or enterprise with which ATC or any of its subsidiaries or any of their respective successors or assigns is\nnegotiating or holding discussion or to which it has made a proposal at the time of such termination, induce any such Person, business or enterprise\nnot to undertake, or to curtail or cancel business with ATC or any of its subsidiaries or any of their respective successors or assigns, induce or\nattempt to induce any employee of ATC or any of its subsidiaries or any of their respective successors or assigns to terminate his employment\ntherewith, or intentionally divulge or utilize for the direct or indirect benefit (financial or other) of himself or any other Person, business or\nenterprise, any Intellectual Property or any Confidential Information he has obtained as an employee and/or stockholder of ATC or any of its\nsubsidiaries.\nThis Agreement shall be deemed to consist of a series of separate covenants, one for each line of business carried on by ATC and its\nsubsidiaries and each region included within the geographic areas referred to in this Section. Optionee and ATC are of the belief that the Restricted\nPeriod, the Proscribed Activity and the Covered Territory herein specified are reasonable, in light of the circumstances as they exist on the date upon\nwhich this Agreement has been executed, including without limitation the nature of the business in which ATC and its subsidiaries are engaged and\nproposes to engage, the state of their product development and Optionee's knowledge of such business and his prior affiliations with and interest\nin\nATC. However, if such period, activity or area should be adjudged unreasonable in any Legal Action, whether at law or in equity, then the Restricted\nPeriod shall be reduced by such period of time, the\n4\nProscribed Activity shall be reduced by such activities, or the Covered Territory shall be reduced by such area, or any combination thereof, as are\ndeemed unreasonable, so that this covenant may be enforced in such area, with respect to such activities and during such period of time as is\nadjudged to be reasonable.\nSection 5. Security. for Optionee Obligations. Optionee's obligations under this Agreement shall be secured by twenty percent (20%) of the\ngross sale proceeds (before deduction of commissions, discounts, brokerage fees or other fees and expenses) of (a) all shares of capital stock and\nother securities issued by Holding to Optionee, and (b) all shares of capital stock and other securities issued by Holding received by Optionee\npursuant to any distribution to him or otherwise acquired by him. Optionee and ATC agree that all such proceeds shall be held by an escrow agent or\nagents reasonably acceptable to Optionee and ATC and subject to the terms and conditions of an escrow agreement to be executed by ATC and\nOptionee and reasonably satisfactory to ATC and Optionee.\nSection 6. Miscellaneous Provisions.\n(a) Assignment; Successors and Assigns. In the event that ATC shall be merged with, or consolidated into, any other Entity, or in the event that\nit shall sell and transfer substantially all of its assets to another Entity, the terms of this Agreement shall inure to the benefit of, and be assumed by,\nthe Entity resulting from such merger or consolidation, or to which ATC's assets shall be sold and transferred. This Agreement shall not be\nassignable by Optionee, but it shall be binding upon his heirs, executors, administrators and legal representatives to the extent they constitute\nmembers of his Immediate Family. Nothing in this Agreement expressed or implied is intended to and shall not be construed to confer upon or create\nin any person (other than the parties hereto and their permitted successors and assigns) any rights or remedies under or by reason of this Agreement.\n(b) Specific Performance; Other Rights and Remedies. Optionee recognizes and agrees that ATC's remedy at law for any breach of the\nprovisions of this Agreement, including without limitation Sections 2, 3, or 4, would be inadequate, and he agrees that for breach of such provisions,\nATC shall, in addition to such other remedies as may be available to it at law or in equity or as provided in this Agreement, be entitled to injunctive\nrelief\nand\nto\nenforce\nits\nrights\nby\nan\naction\nfor\nspecific\nperformance\nto\nthe\nextent\npermitted\nby\napplicable\nlaw.\nWithout\nlimiting\nthe\ngenerality\nof\nthe\nforegoing, in the event of a breach or threatened breach by Optionee of the provisions of this Agreement, ATC shall be entitled to an injunction\nrestraining Optionee from soliciting employees, customers or suppliers, or from disclosing, in whole or in part, any Confidential Information,\nor\nfrom rendering any services to any Person to whom such information has been disclosed, or is threatened to be disclosed, from engaging,\nparticipating or otherwise being connected with any business described in Section 4 or from otherwise violating the terms of this Agreement.\nNothing herein contained shall be construed as prohibiting each party from pursuing any other remedies available to it pursuant to the provisions of,\nand subject to the limitations contained in, this Agreement for such breach or threatened breach; provided, however, that none of the parties shall\npursue, and each party hereby waives, any punitive, indirect, special, incidental, exemplary, consequential or similar damages arising out of this\nAgreement (including without limitation damages for diminution in value and loss of anticipated profits) and the multiplied portion of damages.\n(c) Entire Agreement. This Agreement constitutes the entire agreement between ATC and Optionee with respect to the subject matter hereof,\nand supersedes all prior agreements, arrangements, covenants, promises, conditions, understandings, inducements, representations and negotiations,\nexpressed or implied, oral or written, among them as to such subject matter.\n(d) Waivers; Amendments. Any provision of this Agreement to the contrary notwithstanding, changes in or additions to this Agreement may be\nmade, or compliance with any term, covenant, agreement, condition or provision set forth herein may be omitted or waived (either generally or in a\n5\nparticular instance and either retroactively or prospectively) with, but only with, the consent in writing of the parties hereto. Any consent may be\ngiven subject to satisfaction of conditions stated therein. The failure to insist upon the strict provisions of any covenant, term, condition or other\nprovision of this Agreement or to exercise any right or remedy thereunder shall not constitute a waiver of any such covenant, term, condition or other\nprovision thereof or default in connection therewith. The waiver of any covenant, term, condition or other provision thereof or default thereunder\nshall not affect or alter this Agreement in any other respect, and each and every covenant, term, condition or other provision of this Agreement shall,\nin such event, continue in full force and effect, except as so waived, and shall be operative with respect to any other then existing or subsequent\ndefault in connection therewith.\n(e) Notices. All notices and other communications which by any provision of this Agreement are required or permitted to be given shall be\ngiven in writing and shall be effective (i) five (5) days after being mailed by first-class, express mail, postage prepaid, (ii) the next day when sent by\novernight by recognized mail courier service, (iii) upon confirmation when sent by telex, telegram, telecopy or other similar form of rapid\ntransmission, confirmed by mailing (by first class or express mail, postage prepaid, or recognized overnight mail courier service) written\nconfirmation at substantially the same time as such rapid transmission, (iv) upon delivery personally delivered to an officer of the receiving party, or\n(v) upon delivery personally delivered to the Optionee. All such communications shall be mailed, set or delivered as set forth below or at such other\naddresses as the party entitled thereto shall have designated by notice as herein provided.\n(i) if to Holding or ATC, at 116 Huntington Avenue, Boston, Massachusetts 02116 Attention: Chief Executive Officer and Chief\nFinancial Officer, Telecopier No.: (617) 375-7575 with a copy (which shall not constitute notice to ATC or Holding) to Sullivan & Worcester\nLLP, One Post Office Square, Boston, Massachusetts 02109, Attention: William J. Curry, Esq., Telecopier No.: (617) 338-2880) and\n(ii) if to Optionee, at\nTelecopier No.\n(f) Severability.. If any provision of this Agreement shall be held or deemed to be, or shall in fact be, invalid, inoperative, illegal or\nunenforceable as applied to any particular case in any jurisdiction or jurisdictions, or in all jurisdictions or in all cases, because of the conflicting of\nany provision with any constitution or statute or rule of public policy or for any other reason, such circumstance shall not have the effect of rendering\nthe provision or provisions in question invalid, inoperative, illegal or unenforceable in any other jurisdiction or in any other case or circumstance or\nof\nrendering any other provision or provisions herein contained invalid, inoperative, illegal or unenforceable to the extent that such other provisions\nare not themselves actually in conflict with such constitution, statute or rule of public policy, but this Agreement shall be reformed and construed in\nany such jurisdiction or case as if such invalid, inoperative, illegal or unenforceable provision had never been contained herein and such provision\nreformed so that it would be valid, operative and enforceable to the maximum extent permitted in such jurisdiction or in such case, except when such\nreformation and construction could operate as an undue hardship on either party, or constitute a substantial deviation from the general intent and\npurpose of such party as reflected in this Agreement. The parties shall endeavor in good faith negotiations to replace the invalid, inoperative, illegal\nor unenforceable provisions with valid, operative, legal and enforceable provisions the economic effect of which comes as close as possible to that of\nthe invalid, inoperative, illegal or unenforceable provisions.\n(g) Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same instrument,\n6\nbinding upon all the parties hereto. In pleading or proving any provision of this Agreement, it shall not be necessary to produce more than one of\nsuch counterparts.\n(h) Section Headings. The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or\ninterpretation of this Agreement.\n(i) Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the applicable laws of\nthe United States of America and the domestic substantive laws of the State of Georgia without giving effect to any choice or conflict of laws\nprovision or rule that would cause the application of domestic substantive laws of any other jurisdiction. Anything in this Agreement to the contrary\nnotwithstanding, in the event of any dispute between the parties which results in a Legal Action, the prevailing party shall be entitled to receive from\nthe non-prevailing party reimbursement for reasonable legal fees and expenses incurred by such prevailing party in such Legal Action.\n(j) Further Acts. Each party agrees that at any time, and from time to time, before and after the consummation of the transactions contemplated\nby this Agreement, it will do all such things and execute and deliver all such agreements, assignments, instruments, other documents and assurances,\nas any other party or its counsel reasonably deems necessary or desirable in order to carry out the terms and conditions of this Agreement and the\ntransactions contemplated hereby or to facilitate the enjoyment of any of the rights created hereby or to be created hereunder.\n(k) Gender. Whenever used herein the singular number shall include the plural, the plural shall include the singular, and the use of any gender\nshall include all genders.\n(1)\nConsultation with Counsel; No Representations. Optionee agrees and acknowledges that he has had a full and complete opportunity to\nconsult with counsel of his own choosing concerning the terms, enforceability and implications of this Agreement, and that ATC has made no\nrepresentations or warranties to him concerning the terms, enforceability or implications of this Agreement other than as are reflected in this\nAgreement.\nIN WITNESS WHEREOF, the parties hereto have executed this Noncompetition and Confidentiality Agreement, all pursuant to authority\nheretofore granted, as of the date and year first above written.\nAmerican Tower Corporation\nBy: /s/ James D. Taiclet\nName: James D. Taiclet\nTitle: President and CEO\n/s/ William H. Hess\nOptionee\nWilliam H. Hess\n7	EX-10.10 2 dex1010.htm NONCOMPETITION AND CONFIDENTIALITY AGREEMENT, WILLIAM H. HESS\nExhibit 10.10\nNONCOMPETITION AND CONFIDENTIALITY AGREEMENT\nThis Agreement (this “Agreement”) made as of January 1, 2004, by and between American Tower Corporation, a Delaware corporation\n(“ATC”), and William H. Hess (“Optionee”), an individual residing at\n.\nWHEREAS, ATC, American Tower International, Inc., a Delaware corporation (“ATC International”), and ATC South America Holding Corp,\na Delaware corporation (“Holding”), are parties to a Stockholder/Optionee Agreement, dated as of January 1, 2004, and of which Optionee executed\na counterpart on January 1, 2004 (collectively, the “Stockholder Agreement”), pursuant to which Holding will issue to Optionee options to purchase\nshares of its Common Stock, par value $.01 per share; and\nWHEREAS, Optionee is an employee of ATC or one of its subsidiaries and will perform services for Holding;\nNOW, THEREFORE, in consideration of the consummation of the transactions contemplated by the Stockholder Agreement, the sum of One\nDollar ($1.00), the material covenants and agreements contained herein, and other good and valuable consideration, the receipt, adequacy and\nsufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do covenant and agree as follows:\nSection 1. Definitions. Terms used in this Agreement which are not defined herein but which are defined in the Stockholder Agreement shall\nhave the respective meanings so defined.\nConfidential Information shall mean any and all information (excluding information in the public domain other than as a direct or indirect\nresult of any breach by Optionee of the provisions of this Agreement) related to the business, operations, management, assets, property, plans or\nprospects, condition, financial or other, or results of operation of ATC, any Affiliate of ATC or any of their respective successors or assigns,\nincluding without limitation:\n(a)\nthe whole or any portion or phase of any business plans, financial information, purchasing data, supplier or customer data,\naccounting data, or computer programs (including source and object codes), tapes, discs, data, software or other information;\n(b) the whole or any portion or phase of any marketing or sales information or technique, sales records, customer lists, supplier lists,\nprices, sales projections or other listings of names, addresses, or telephone numbers, or other sales information;\n(c)\nthe whole or any portion or phase of any employee payroll, fringe benefit, salary, bonus, commission or other form of\ncompensation information and all employee personnel information, including information relating to performance evaluations,\ndiscipline, employee conduct, complaints and other matters relating to employment of any Person; and\n(d) Intellectual Property;\nwhether or not any of the foregoing has been made, developed and/or conceived by Optionee or by others in the employ of any such Person.\nNotwithstanding the foregoing, the term “Confidential Information”\nshall not include and information reasonably necessary for the conducting of any activity expressly excluded from the definition of “Proscribed\nActivity” hereunder.\nCovered Territory shall mean (a) while Optionee is employed by ATC or any of its Affiliates, North, South and Latin America, Europe and all\nother areas in which ATC or any of its Affiliates has invested or proposes to invest; and (b) thereafter, North America and any other markets where\nOptionee has been or is involved or is negotiating a proposed investment, acquisition or other transaction on behalf of ATC or any of its Affiliates.\nGood Reason shall mean:\n(a) the assignment to Optionee of any duties inconsistent in any material respect with his current position, authority, duties or\nresponsibilities or any other action by ATC or Holding or any of their Affiliates that results in a diminution, in any material respect, in\nsuch position, authority, duties or responsibilities; or\n(b) a material reduction in Optionee’s compensation or other benefits (taking into account the compensation and other benefits from ATC or\nHolding and their Affiliates from whom he may, from time to time, receive compensation), the result of which is to place Optionee in a\nmaterially less favorable position as to such compensation and benefits compared to other employees of ATC or Holding and their\nAffiliates of similar stature and position; or\n(c) any other failure by ATC or Holding or any of their Affiliates to comply in any material respect with any material provision of the\nStockholder Agreement;\nthat (i) is incapable of cure, or (ii) has not been cured or remedied promptly (and in any event within thirty (30) days) after written notice to the\nboard of directors of ATC from Optionee specifying in reasonable detail the nature of such assignment, action, reduction or failure.\nImmediate Family shall mean spouses, children and parents, whether related by blood, adoption or marriage.\nIntellectual Property shall mean, with respect to Optionee, any and all research, information, inventions, designs, procedures, developments,\ndiscoveries, improvements, patents and applications therefor, trademarks and applications therefor, service marks, trade names, copyrights and\napplications therefor, trade secrets, drawing, plans, systems, methods, specifications, computer software programs, tapes, discs and related data\nprocessing software (including object and source codes) owned by Optionee or in which he has an interest and all other manufacturing, engineering,\ntechnical, research and development data and know-how made, conceived, developed and/or acquired by Optionee solely or jointly with others\nduring the period of his employment with ATC or any of its Affiliates or within one year thereafter, which relate to the manufacture, production or\nprocessing of any products developed or sold by ATC or any of its Affiliates during the term of this Agreement or which are within the scope of or\nusable in connection with ATC’s or any of its Affiliates’ business as it may, from time to time, hereafter be conducted or proposed to be conducted.\nOptionee Forfeiture Event shall mean any of the following acts (other than as a result of the death or Disability of Optionee) committed by\nOptionee:\n(a) any willful or gross failure or refusal to perform, or any willful or gross misconduct in the performance of, any significant portion of\nhis obligations, duties and responsibilities as an\n2\nemployee of Holding, the effect of which has been or reasonably could be expected to materially and adversely affect the business of ATC or\nany of its Affiliates, as determined in good faith by the ATC Board of Directors, and that (i) is incapable of cure, or (ii) has not been cured or\nremedied as promptly as is reasonably possible (and in any event within thirty (30) days) after written notice from the Holding Board to\nOptionee specifying in reasonable detail the nature of such failure, refusal or misconduct, or\n(b) material breach of the provisions of Section 2, 3 or 4 of this Agreement which (i) is incapable of cure, or (ii) has not been cured or\nremedied promptly (and in any event within thirty (30) days) after written notice from the Holding Board to Optionee specifying in reasonable\ndetail the nature of such breach, or\n(c) Optionee is convicted of, pleads guilty or nolo contendero to any act of fraud, embezzlement or misappropriation or other crime\ninvolving moral turpitude in connection with his employment by Holding or any of its Affiliates intended by Optionee to result in substantial\npersonal enrichment and which adversely affects the business of ATC or any of its Affiliates, all as determined in good faith by the ATC Board\nof Directors.\nProscribed Activity shall mean any and all activities related to (a) the construction, ownership, operation, leasing or management of\ntelecommunications or broadcast towers, (b) providing network development services or components for wireless service providers or broadcasters,\n(c) providing high speed Internet access and related services via satellite to foreign-based Internet service providers, telephone or other\ntelecommunciations companies, and other businesses, or (d) providing other satellite and Internet protocol network transmission services.\nRestricted Period shall mean a period commencing with the date hereof and terminating the latest of (a) one year after exercise of the put (or\ncall) provided for in Section 6 of the Stockholder Agreement, (b) two years after the sooner to occur of (i) an Optionee Forfeiture Event, or (ii) the\nresignation by Optionee from all positions with ATC and each of its subsidiaries other than for Good Reason, or (c) one year after the resignation by\nOptionee from all positions with ATC and each of its subsidiaries for the reason set forth in paragraph (d) of the definition of Good Reason.\nSection 2. Confidentiality. Optionee shall not, either during the Restricted Period or thereafter, reveal or disclose to any person outside ATC\nand its subsidiaries or use for his own benefit, without ATC’s specific prior written authorization, whether by private communication or by public\naddress or publication or otherwise, any Confidential Information. All originals and copies of any Confidential Information, relating to the business\nof ATC or any of its subsidiaries, however and whenever produced, shall be the sole property of ATC and its subsidiaries, not to be removed from\nthe premises or custody of ATC or its subsidiaries without in each instance first obtaining prior written consent or authorization of ATC.\nSection 3. Disclosure and Assignment of Intellectual Property. Optionee shall promptly disclose to ATC and any successor or assign, and grant\nto ATC, and its successors and assigns (without any separate remuneration or compensation other than that received by him from time to time in the\ncourse of his employment) his entire right, title and interest throughout the world in and to all Intellectual Property. It is understood and agreed that\nOptionee has heretofore disclosed to ATC, and assigned to it, all Intellectual Property now known to him over which he has any control. Optionee\nagrees to execute all appropriate patent applications securing all United States and foreign patents on all Intellectual Property, and to do, execute and\ndeliver any and all acts and instruments that may be necessary or proper to vest all Intellectual Property in ATC or its nominee or designee and to\nenable ATC, or its nominee or designee, to obtain all such patents; and Optionee agrees to render to ATC, or its nominee or designee, all such\n3\nreasonable assistance as it may require in the prosecution of all such patent applications and applications for the reissue of such patents, and in the\nprosecution or defense of all interferences which may be declared involving any of said patent applications or patents, but the expense of all such\nassignments and patent applications, or all other proceedings referred to herein above, shall be borne by ATC. Optionee shall be entitled to fair and\nreasonable compensation for any such assistance requested by ATC or its nominee or designee and furnished by him after the termination of his\nemployment.\nSection 4. Restriction. ATC through its subsidiaries intends to continue and expand the business heretofore conducted by it and them and it and\nin connection therewith ATC and its subsidiaries have invested and may in the future be required to invest substantial sums of money, directly or\nindirectly, and as Optionee recognizes that ATC would be substantially injured by Optionee disclosing to others, or by Optionee using for his own\nbenefit, any Intellectual Property or any other Confidential Information he has obtained or shall obtain from ATC or any of its subsidiaries, or which\nhe may now possess and which he has made available to ATC or any of its subsidiaries, Optionee agrees that during the Restricted Period:\n(a) Neither he nor any member of his Immediate Family will be interested, directly or indirectly, as an investor in any other Entity, business\nor enterprise within the Covered Territory, which is engaged in any Proscribed Activity (except as an investor in securities (i) issued by\nATC or any of its subsidiaries or (ii) listed on a national securities exchange or actively traded over the counter so long as such\ninvestments are in amounts not significant as compared to his total investments and do not exceed one percent (1%) of the outstanding\nsecurities of the issuer of the same class or issue); and\n(b) Other than in connection with his serving as an employee of ATC and its subsidiaries, he will not, directly or indirectly, for his own\naccount or as employee, officer, director, partner, trustee, principal, member, joint venturer, agent, adviser, consultant or otherwise,\nengage within the Covered Territory, in any phase of any Proscribed Activity.\nOptionee further agrees that during the Restricted Period, he will not, directly or indirectly, solicit business for a Proscribed Activity from any\nPerson, business or enterprise which is, or proposes to be, a customer of ATC or any of its subsidiaries or any of their respective successors or\nassigns, or from any Person, business or enterprise with which ATC or any of its subsidiaries or any of their respective successors or assigns is\nnegotiating or holding discussion or to which it has made a proposal at the time of such termination, induce any such Person, business or enterprise\nnot to undertake, or to curtail or cancel business with ATC or any of its subsidiaries or any of their respective successors or assigns, induce or\nattempt to induce any employee of ATC or any of its subsidiaries or any of their respective successors or assigns to terminate his employment\ntherewith, or intentionally divulge or utilize for the direct or indirect benefit (financial or other) of himself or any other Person, business or\nenterprise, any Intellectual Property or any Confidential Information he has obtained as an employee and/or stockholder of ATC or any of its\nsubsidiaries.\nThis Agreement shall be deemed to consist of a series of separate covenants, one for each line of business carried on by ATC and its\nsubsidiaries and each region included within the geographic areas referred to in this Section. Optionee and ATC are of the belief that the Restricted\nPeriod, the Proscribed Activity and the Covered Territory herein specified are reasonable, in light of the circumstances as they exist on the date upon\nwhich this Agreement has been executed, including without limitation the nature of the business in which ATC and its subsidiaries are engaged and\nproposes to engage, the state of their product development and Optionee’s knowledge of such business and his prior affiliations with and interest in\nATC. However, if such period, activity or area should be adjudged unreasonable in any Legal Action, whether at law or in equity, then the Restricted\nPeriod shall be reduced by such period of time, the\n4\nProscribed Activity shall be reduced by such activities, or the Covered Territory shall be reduced by such area, or any combination thereof, as are\ndeemed unreasonable, so that this covenant may be enforced in such area, with respect to such activities and during such period of time as is\nadjudged to be reasonable.\nSection 5. Security for Optionee Obligations. Optionee’s obligations under this Agreement shall be secured by twenty percent (20%) of the\ngross sale proceeds (before deduction of commissions, discounts, brokerage fees or other fees and expenses) of (a) all shares of capital stock and\nother securities issued by Holding to Optionee, and (b) all shares of capital stock and other securities issued by Holding received by Optionee\npursuant to any distribution to him or otherwise acquired by him. Optionee and ATC agree that all such proceeds shall be held by an escrow agent or\nagents reasonably acceptable to Optionee and ATC and subject to the terms and conditions of an escrow agreement to be executed by ATC and\nOptionee and reasonably satisfactory to ATC and Optionee.\nSection 6. Miscellaneous Provisions.\n(a) Assignment; Successors and Assigns. In the event that ATC shall be merged with, or consolidated into, any other Entity, or in the event that\nit shall sell and transfer substantially all of its assets to another Entity, the terms of this Agreement shall inure to the benefit of, and be assumed by,\nthe Entity resulting from such merger or consolidation, or to which ATC’s assets shall be sold and transferred. This Agreement shall not be\nassignable by Optionee, but it shall be binding upon his heirs, executors, administrators and legal representatives to the extent they constitute\nmembers of his Immediate Family. Nothing in this Agreement expressed or implied is intended to and shall not be construed to confer upon or create\nin any person (other than the parties hereto and their permitted successors and assigns) any rights or remedies under or by reason of this Agreement.\n(b) Specific Performance; Other Rights and Remedies. Optionee recognizes and agrees that ATC’s remedy at law for any breach of the\nprovisions of this Agreement, including without limitation Sections 2, 3, or 4, would be inadequate, and he agrees that for breach of such provisions,\nATC shall, in addition to such other remedies as may be available to it at law or in equity or as provided in this Agreement, be entitled to injunctive\nrelief and to enforce its rights by an action for specific performance to the extent permitted by applicable law. Without limiting the generality of the\nforegoing, in the event of a breach or threatened breach by Optionee of the provisions of this Agreement, ATC shall be entitled to an injunction\nrestraining Optionee from soliciting employees, customers or suppliers, or from disclosing, in whole or in part, any Confidential Information, or\nfrom rendering any services to any Person to whom such information has been disclosed, or is threatened to be disclosed, from engaging,\nparticipating or otherwise being connected with any business described in Section 4 or from otherwise violating the terms of this Agreement.\nNothing herein contained shall be construed as prohibiting each party from pursuing any other remedies available to it pursuant to the provisions of,\nand subject to the limitations contained in, this Agreement for such breach or threatened breach; provided, however, that none of the parties shall\npursue, and each party hereby waives, any punitive, indirect, special, incidental, exemplary, consequential or similar damages arising out of this\nAgreement (including without limitation damages for diminution in value and loss of anticipated profits) and the multiplied portion of damages.\n(c) Entire Agreement. This Agreement constitutes the entire agreement between ATC and Optionee with respect to the subject matter hereof,\nand supersedes all prior agreements, arrangements, covenants, promises, conditions, understandings, inducements, representations and negotiations,\nexpressed or implied, oral or written, among them as to such subject matter.\n(d) Waivers; Amendments. Any provision of this Agreement to the contrary notwithstanding, changes in or additions to this Agreement may be\nmade, or compliance with any term, covenant, agreement, condition or provision set forth herein may be omitted or waived (either generally or in a\n5\nparticular instance and either retroactively or prospectively) with, but only with, the consent in writing of the parties hereto. Any consent may be\ngiven subject to satisfaction of conditions stated therein. The failure to insist upon the strict provisions of any covenant, term, condition or other\nprovision of this Agreement or to exercise any right or remedy thereunder shall not constitute a waiver of any such covenant, term, condition or other\nprovision thereof or default in connection therewith. The waiver of any covenant, term, condition or other provision thereof or default thereunder\nshall not affect or alter this Agreement in any other respect, and each and every covenant, term, condition or other provision of this Agreement shall,\nin such event, continue in full force and effect, except as so waived, and shall be operative with respect to any other then existing or subsequent\ndefault in connection therewith.\n(e) Notices. All notices and other communications which by any provision of this Agreement are required or permitted to be given shall be\ngiven in writing and shall be effective (i) five (5) days after being mailed by first-class, express mail, postage prepaid, (ii) the next day when sent by\novernight by recognized mail courier service, (iii) upon confirmation when sent by telex, telegram, telecopy or other similar form of rapid\ntransmission, confirmed by mailing (by first class or express mail, postage prepaid, or recognized overnight mail courier service) written\nconfirmation at substantially the same time as such rapid transmission, (iv) upon delivery personally delivered to an officer of the receiving party, or\n(v) upon delivery personally delivered to the Optionee. All such communications shall be mailed, set or delivered as set forth below or at such other\naddresses as the party entitled thereto shall have designated by notice as herein provided.\n(i) if to Holding or ATC, at 116 Huntington Avenue, Boston, Massachusetts 02116 Attention: Chief Executive Officer and Chief\nFinancial Officer, Telecopier No.: (617) 375-7575 with a copy (which shall not constitute notice to ATC or Holding) to Sullivan & Worcester\nLLP, One Post Office Square, Boston, Massachusetts 02109, Attention: William J. Curry, Esq., Telecopier No.: (617) 338-2880) and\n(ii) if to Optionee, at\n, Telecopier No.\n.\n(f) Severability. If any provision of this Agreement shall be held or deemed to be, or shall in fact be, invalid, inoperative, illegal or\nunenforceable as applied to any particular case in any jurisdiction or jurisdictions, or in all jurisdictions or in all cases, because of the conflicting of\nany provision with any constitution or statute or rule of public policy or for any other reason, such circumstance shall not have the effect of rendering\nthe provision or provisions in question invalid, inoperative, illegal or unenforceable in any other jurisdiction or in any other case or circumstance or\nof rendering any other provision or provisions herein contained invalid, inoperative, illegal or unenforceable to the extent that such other provisions\nare not themselves actually in conflict with such constitution, statute or rule of public policy, but this Agreement shall be reformed and construed in\nany such jurisdiction or case as if such invalid, inoperative, illegal or unenforceable provision had never been contained herein and such provision\nreformed so that it would be valid, operative and enforceable to the maximum extent permitted in such jurisdiction or in such case, except when such\nreformation and construction could operate as an undue hardship on either party, or constitute a substantial deviation from the general intent and\npurpose of such party as reflected in this Agreement. The parties shall endeavor in good faith negotiations to replace the invalid, inoperative, illegal\nor unenforceable provisions with valid, operative, legal and enforceable provisions the economic effect of which comes as close as possible to that of\nthe invalid, inoperative, illegal or unenforceable provisions.\n(g) Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same instrument,\n6\nbinding upon all the parties hereto. In pleading or proving any provision of this Agreement, it shall not be necessary to produce more than one of\nsuch counterparts.\n(h) Section Headings. The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or\ninterpretation of this Agreement.\n(i) Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the applicable laws of\nthe United States of America and the domestic substantive laws of the State of Georgia without giving effect to any choice or conflict of laws\nprovision or rule that would cause the application of domestic substantive laws of any other jurisdiction. Anything in this Agreement to the contrary\nnotwithstanding, in the event of any dispute between the parties which results in a Legal Action, the prevailing party shall be entitled to receive from\nthe non-prevailing party reimbursement for reasonable legal fees and expenses incurred by such prevailing party in such Legal Action.\n(j) Further Acts. Each party agrees that at any time, and from time to time, before and after the consummation of the transactions contemplated\nby this Agreement, it will do all such things and execute and deliver all such agreements, assignments, instruments, other documents and assurances,\nas any other party or its counsel reasonably deems necessary or desirable in order to carry out the terms and conditions of this Agreement and the\ntransactions contemplated hereby or to facilitate the enjoyment of any of the rights created hereby or to be created hereunder.\n(k) Gender. Whenever used herein the singular number shall include the plural, the plural shall include the singular, and the use of any gender\nshall include all genders.\n(l) Consultation with Counsel; No Representations. Optionee agrees and acknowledges that he has had a full and complete opportunity to\nconsult with counsel of his own choosing concerning the terms, enforceability and implications of this Agreement, and that ATC has made no\nrepresentations or warranties to him concerning the terms, enforceability or implications of this Agreement other than as are reflected in this\nAgreement.\nIN WITNESS WHEREOF, the parties hereto have executed this Noncompetition and Confidentiality Agreement, all pursuant to authority\nheretofore granted, as of the date and year first above written.\nAmerican Tower Corporation\nBy: /s/ James D. Taiclet\nName: James D. Taiclet\nTitle: President and CEO\n/s/ William H. Hess\nOptionee\nWilliam H. Hess\n7
+33223e925bb4c8b95a2e9d71bd406c2d.pdf	effective_date jurisdiction party term	EXHIBIT B: MICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\nLOGO\nNon-Disclosure Agreement\nThis Non-Disclosure Agreement (“agreement”) is between the parties signing below. “We,” “us” and “our” refer to both of the parties signing below\nand our respective affiliates.\nCOMPANY AND ITS AFFILIATES or\nINDIVIDUAL: Rainmaker Systems\nMICROSOFT CORPORATION\nAND ITS AFFILIATES\nAddress: 8701 N Mopac\nOne Microsoft Way\nAustin\nTX 78759\nRedmond, WA 98052-6399\nUSA\nUSA\nSign:\nLOGO\nLOGO\nPrint Name: Rick Cassizzi\nMary E. Snapp\nPrint Title: Controller\nCorporate Vice President, Deputy General Counsel\nSignature Date: 5.19.08\n05/19/2008\n1. The purpose of this agreement. This agreement allows us to disclose confidential information to each other, to our own affiliates and to the\nother ’s affiliates, under the following terms. An “affiliate” is any legal entity that one of us owns, that owns one of us or that is under common\ncontrol with one of us. “Control” and “own” mean possessing a 50% or greater interest in entity or the right to direct the management of the entity.\n2. Confidential Information.\na.\nWhat is included. “Confidential Information” is non-public information, know-how and trade secrets in any form that:\n•\nAre designated as “confidential”; or\n•\nA reasonable person knows or reasonably should understand to be confidential.\nb. What is not included. The following types of information, however marked, are not confidential information. Information that:\n•\nIs, or becomes, publicly available without a breach of this agreement;\n•\nWas lawfully known to the receiver of the information without an obligation to keep it confidential;\nMicrosoft filing instruction: after both parties sign and date this Agreement, Your customer should retain one original for their files and return the\nother to you. Then, address the second original to:\nNDA, CRM 124/Records\nMicrosoft Corporation\n1 Microsoft Way\nRedmond, WA 98052-6399\nLOGO\nJEAID: 133205\nExhibit Page 2\n**** = Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been\nrequested with respect to the omitted portions.\n•\nIs received from another source who can disclose it lawfully and without an obligation to keep it confidential;\n•\nIs independently developed; or\n•\nIs a comment or suggestion one of us volunteers about the other’s business, products or services.\n3. Treatment of confidential information.\na.\nIn general. Subject to the other terms of this agreement, each of us agrees:\n•\nWe will not disclose the other’s confidential information to third parties; and\n•\nWe will use and disclose the other’s confidential information only for purposes of our business relationship with each other.\nb. Security precautions. Each of us agrees:\n•\nTo take reasonable steps to protect the other’s confidential information. These steps must be at least as protective as those we take\nto protect our own confidential information;\n•\nTo notify the other promptly upon discovery of any unauthorized use or disclosure of confidential information; and\n•\nTo cooperate with the other to help regain control of the confidential information and prevent further unauthorized use or\ndisclosure of it.\nc.\nSharing confidential information with affiliates and representatives.\n•\nA “representative” is an employee, contractor, advisor or consultant of one of us or one of our respective affiliates.\n•\nEach of us may disclose the other’s confidential information to our representatives (who may then disclose that confidential\ninformation to other of our representatives) only if those representatives have a need to know about it for purposes of our business\nrelationship with each other. Before doing so, each of us must:\n•\nensure that affiliates and representatives are required to protect the confidential information on terms consistent with this\nagreement; and\n•\naccept responsibility for each representative’s use of confidential information.\n•\nNeither of us is required to restrict work assignments of representatives who have had access to confidential information. Neither\nof us can control the incoming information the other will disclose to us in the course of working together, or what our\nrepresentatives will remember, even without notes or other aids. We agree that use of information in representatives’ unaided\nmemories in the development or deployment of our respective products or services does not create liability under this agreement\nor trade secret law, and we agree to limit what we disclose to the other accordingly.\nd. Disclosing confidential information if required to by law. Each of us may disclose the other’s confidential information if required to\ncomply with a court order or other government demand that has the force of law. Before doing so, each of us must seek the highest level\nof protection available and, when possible, give the other enough prior notice to provide a reasonable chance to seek a protective order.\nLOGO\nExhibit Page 3\n**** = Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been\nrequested with respect to the omitted portions.\n4. Length of confidential information obligations.\na.\nTermination. This agreement continues in effect until one of us terminates it. Either of us may terminate this agreement for any reason\nby providing the other with 30 days’ advance written notice. Termination of this agreement will not change any of the rights and duties\nmade while this agreement is in effect.\nb. No other use or disclosure of confidential information. Except as permitted above, neither of us will use or disclose the other’s\nconfidential information for five years after we receive it. The five-year time period does not apply if applicable law requires a longer\nperiod.\n5. General rights and obligations.\na.\nLaw that applies; jurisdiction and venue. The laws of the State of Washington govern this agreement. If federal jurisdiction exists, we\neach consent to exclusive jurisdiction and venue in the federal courts in King County, Washington. If not, we each consent to exclusive\njurisdiction and venue in the superior court of King county, Washington.\nb. Compliance with law. Each of us will comply with all export laws that apply to confidential information.\nc.\nWaiver. Any delay or failure of either of us to exercise a right or remedy will not result in a waiver of that, or any other, right or remedy.\nd. Money damages insufficient. Each of us acknowledges that money damages may not be sufficient compensation for a breach of this\nagreement. Each of us agrees that the other may seek court orders to stop confidential information from becoming public in breach of\nthis agreement.\ne.\nAttorneys’ fees. In any dispute relating to this agreement the prevailing party will be entitled to recover reasonable attorneys’ fees and\ncosts.\nf. Transfers of this agreement. If one of us transfers this agreement, we will not disclose the other’s confidential information to the\ntransferee without the other’s consent.\ng. Enforceability. If any provision of this agreement is unenforceable, the parties (or, if we cannot agree, a court) will revise it so that it can\nbe enforced. Even if no revision is possible, the rest of this agreement will remain in place.\nh. Entire agreement. This agreement does not grant any implied intellectual property licenses to confidential information, except as stated\nabove. We may have contracts with each other covering other specific aspects of our relationship (“other contracts”). The other contract\nmay include commitments about confidential information, either within it or by referencing another non-disclosure agreement. If so,\nthose obligations remain in place for purposes of that other contract. With this exception, this is the entire agreement between us\nregarding confidential information. It replaces all other agreements and understanding regarding confidential information. We can only\nchange this agreement with a signed document that states that is changing this agreement.\nLOGO\nExhibit Page 4\n**** = Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been\nrequested with respect to the omitted portions.	EXHIBIT B: MICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\n».LOGO\nNon-Disclosure Agreement\nThis Non-Disclosure Agreement (“agreement”) is between the parties signing below. “We,” “us” and “our” refer to both of the parties signing below\nand our respective affiliates.\nCOMPANY AND ITS AFFILIATES or MICROSOFT CORPORATION\nINDIVIDUAL: Rainmaker Systems AND ITS AFFILIATES\nAddress: 8701 N Mopac One Microsoft Way\nAustin Redmond, WA 98052-6399\nTX 78759\nUsa\nSign: LOGO LOGO Print Name: Rick Cassizzi Mary E. Snapp Print Title: Controller Corporate Vice President, Deputy General Counsel Signature Date: 5.19.08 05/19/2008  \n1. The purpose of this agreement. This agreement allows us to disclose confidential information to each other, to our own affiliates and to the\nother’s affiliates, under the following terms. An “affiliate” is any legal entity that one of us owns, that owns one of us or that is under common\ncontrol with one of us. “Control” and “own” mean possessing a 50% or greater interest in entity or the right to direct the management of the entity.\n2.  Confidential Information.\na.  What is included. “Confidential Information” is non-public information, know-how and trade secrets in any form that:\n. Are designated as “confidential”; or\n. A reasonable person knows or reasonably should understand to be confidential.\nb.  What is not included. The following types of information, however marked, are not confidential information. Information that:\n. Is, or becomes, publicly available without a breach of this agreement;\n. Was lawfully known to the receiver of the information without an obligation to keep it confidential;\nMicrosoft filing instruction: after both parties sign and date this Agreement, Your customer should retain one original for their files and return the\nother to you. Then, address the second original to:\nNDA, CRM 124/Records\nMicrosoft Corporation\n1 Microsoft Way\nRedmond, WA 98052-6399\n».LOGO JEAID: 133205\nExhibit Page 2\n##%% = Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been\nrequested with respect to the omitted portions.\n. Is received from another source who can disclose it lawfully and without an obligation to keep it confidential;\n. Is independently developed; or\n. Is a comment or suggestion one of us volunteers about the other’s business, products or services.\n3.  Treatment of confidential information.\na.  In general. Subject to the other terms of this agreement, each of us agrees:\n. We will not disclose the other’s confidential information to third parties; and\n. We will use and disclose the other’s confidential information only for purposes of our business relationship with each other.\nb.  Security precautions. Each of us agrees:\n. To take reasonable steps to protect the other’s confidential information. These steps must be at least as protective as those we take\nto protect our own confidential information;\n. To notify the other promptly upon discovery of any unauthorized use or disclosure of confidential information; and\n. To cooperate with the other to help regain control of the confidential information and prevent further unauthorized use or\ndisclosure of it.\nc.  Sharing confidential information with affiliates and representatives.\n. A “representative” is an employee, contractor, advisor or consultant of one of us or one of our respective affiliates.\n. Each of us may disclose the other’s confidential information to our representatives (who may then disclose that confidential\ninformation to other of our representatives) only if those representatives have a need to know about it for purposes of our business\nrelationship with each other. Before doing so, each of us must:\n» ensure that affiliates and representatives are required to protect the confidential information on terms consistent with this\nagreement; and\n» accept responsibility for each representative’s use of confidential information.\n. Neither of us is required to restrict work assignments of representatives who have had access to confidential information. Neither\nof us can control the incoming information the other will disclose to us in the course of working together, or what our\nrepresentatives will remember, even without notes or other aids. We agree that use of information in representatives’ unaided\nmemories in the development or deployment of our respective products or services does not create liability under this agreement\nor trade secret law, and we agree to limit what we disclose to the other accordingly.\nd. Disclosing confidential information if required to by law. Each of us may disclose the other’s confidential information if required to\ncomply with a court order or other government demand that has the force of law. Before doing so, each of us must seek the highest level\nof protection available and, when possible, give the other enough prior notice to provide a reasonable chance to seek a protective order.\n».LOGO\nExhibit Page 3\n##%% = Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been\nrequested with respect to the omitted portions.\n4.  Length of confidential information obligations. d.\nTermination. This agreement continues in effect until one of us terminates it. Either of us may terminate this agreement for any reason\nby providing the other with 30 days’ advance written notice. Termination of this agreement will not change any of the rights and duties\nmade while this agreement is in effect.\nNo other use or disclosure of confidential information. Except as permitted above, neither of us will use or disclose the other’s\nconfidential information for five years after we receive it. The five-year time period does not apply if applicable law requires a longer\nperiod.\n5.  General rights and obligations. d.\n».LOGO Law that applies; jurisdiction and venue. The laws of the State of Washington govern this agreement. If federal jurisdiction exists, we\neach consent to exclusive jurisdiction and venue in the federal courts in King County, Washington. If not, we each consent to exclusive\njurisdiction and venue in the superior court of King county, Washington.\nCompliance with law. Each of us will comply with all export laws that apply to confidential information.\nWaiver. Any delay or failure of either of us to exercise a right or remedy will not result in a waiver of that, or any other, right or remedy.\nMoney damages insufficient. Each of us acknowledges that money damages may not be sufficient compensation for a breach of this\nagreement. Each of us agrees that the other may seek court orders to stop confidential information from becoming public in breach of\nthis agreement.\nAttorneys’ fees. In any dispute relating to this agreement the prevailing party will be entitled to recover reasonable attorneys’ fees and\ncosts.\nTransfers of this agreement. If one of us transfers this agreement, we will not disclose the other’s confidential information to the\ntransferee without the other’s consent.\nEnforceability. If any provision of this agreement is unenforceable, the parties (or, if we cannot agree, a court) will revise it so that it can\nbe enforced. Even if no revision is possible, the rest of this agreement will remain in place.\nEntire agreement. This agreement does not grant any implied intellectual property licenses to confidential information, except as stated\nabove. We may have contracts with each other covering other specific aspects of our relationship (“other contracts”). The other contract\nmay include commitments about confidential information, either within it or by referencing another non-disclosure agreement. If so,\nthose obligations remain in place for purposes of that other contract. With this exception, this is the entire agreement between us\nregarding confidential information. It replaces all other agreements and understanding regarding confidential information. We can only\nchange this agreement with a signed document that states that is changing this agreement.\nExhibit Page 4\n##%% = Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.	EXHIBIT B: MICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\nLOGO\nNon-Disclosure Agreement\nThis Non-Disclosure Agreement ("agreement") is between the parties signing below. "We," "us" and "our" refer to both of the parties signing below\nand our respective affiliates.\nCOMPANY AND ITS AFFILIATES or\nMICROSOFT CORPORATION\nINDIVIDUAL: Rainmaker Systems\nAND ITS AFFILIATES\nAddress: 8701 N Mopac\nOne Microsoft Way\nAustin\nRedmond, WA 98052-6399\nTX 78759\nUSA\nUSA\nSign:\nLOGO\nLOGO\nPrint Name: Rick Cassizzi\nMary E. Snapp\nPrint Title: Controller\nCorporate Vice President, Deputy General Counsel\nSignature Date: 5.19.08\n05/19/2008\n1. The purpose of this agreement. This agreement allows us to disclose confidential information to each other, to our own affiliates and to the\nother's affiliates, under the following terms. An "affiliate" is any legal entity that one of us owns, that owns one of us or that is under common\ncontrol with one of us. "Control" and "own" mean possessing a 50% or greater interest in entity or the right to direct the management of the entity.\n2.\nConfidential Information.\na.\nWhat is included. "Confidential Information" is non-public information, know-how and trade secrets in any form that:\nAre designated as "confidential"; or\nA reasonable person knows or reasonably should understand to be confidential.\nb.\nWhat is not included. The following types of information, however marked, are not confidential information. Information that:\nIs, or becomes, publicly available without a breach of this agreement;\nWas lawfully known to the receiver of the information without an obligation to keep it confidential;\nMicrosoft filing instruction: after both parties sign and date this Agreement, Your customer should retain one original for their files and return the\nother to you. Then, address the second original to:\nNDA, CRM 124/Records\nMicrosoft Corporation\n1 Microsoft Way\nRedmond, WA 98052-6399\nLOGO\nJEAID: 133205\nExhibit Page 2\n* = Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been\nrequested with respect to the omitted portions.\nIs received from another source who can disclose it lawfully and without an obligation to keep it confidential;\nIs independently developed; or\nIs a comment or suggestion one of us volunteers about the other's business, products or services.\n3.\nTreatment of confidential information.\na.\nIn general. Subject to the other terms of this agreement, each of us agrees:\nWe will not disclose the other's confidential information to third parties; and\nWe will use and disclose the other's confidential information only for purposes of our business relationship with each other.\nb.\nSecurity precautions. Each of us agrees:\nTo take reasonable steps to protect the other's confidential information. These steps must be at least as protective as those we take\nto protect our own confidential information;\nTo notify the other promptly upon discovery of any unauthorized use or disclosure of confidential information; and\nTo cooperate with the other to help regain control of the confidential information and prevent further unauthorized use or\ndisclosure of it.\nC.\nSharing confidential information with affiliates and representatives.\nA "representative" is an employee, contractor, advisor or consultant of one of us or one of our respective affiliates.\nEach of us may disclose the other's confidential information to our representatives (who may then disclose that confidential\ninformation to other of our representatives) only if those representatives have a need to know about it for purposes of our business\nrelationship with each other. Before doing so, each of us must:\nensure that affiliates and representatives are required to protect the confidential information on terms consistent with this\nagreement; and\naccept responsibility for each representative's use of confidential information.\nNeither of us is required to restrict work assignments of representatives who have had access to confidential information. Neither\nof us can control the incoming information the other will disclose to us in the course of working together, or what our\nrepresentatives will remember, even without notes or other aids. We agree that use of information in representatives' unaided\nmemories in the development or deployment of our respective products or services does not create liability under this agreement\nor trade secret law, and we agree to limit what we disclose to the other accordingly.\nd.\nDisclosing confidential information if required to by law. Each of us may disclose the other's confidential information if required to\ncomply with a court order or other government demand that has the force of law. Before doing SO, each of us must seek the highest level\nof protection available and, when possible, give the other enough prior notice to provide a reasonable chance to seek a protective order.\nALOGO\nExhibit Page 3\n* E Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been\nrequested with respect to the omitted portions.\n4.\nLength of confidential information obligations.\na.\nTermination. This agreement continues in effect until one of us terminates it. Either of us may terminate this agreement for any reason\nby providing the other with 30 days' advance written notice. Termination of this agreement will not change any of the rights and duties\nmade while this agreement is in effect.\nb.\nNo other use or disclosure of confidential information. Except as permitted above, neither of us will use or disclose the other's\nconfidential information for five years after we receive it. The five-year time period does not apply if applicable law requires a longer\nperiod.\n5.\nGeneral rights and obligations.\na.\nLaw that applies; jurisdiction and venue. The laws of the State of Washington govern this agreement. If federal jurisdiction exists, we\neach consent to exclusive jurisdiction and venue in the federal courts in King County, Washington. If not, we each consent to exclusive\njurisdiction and venue in the superior court of King county, Washington.\nb.\nCompliance with law. Each of us will comply with all export laws that apply to confidential information\nC.\nWaiver. Any delay or failure of either of us to exercise a right or remedy will not result in a waiver of that, or any other, right or remedy.\nd. Money damages insufficient. Each of us acknowledges that money damages may not be sufficient compensation for a breach of this\nagreement. Each of us agrees that the other may seek court orders to stop confidential information from becoming public in breach of\nthis agreement.\ne.\nAttorneys' fees. In any dispute relating to this agreement the prevailing party will be entitled to recover reasonable attorneys' fees and\ncosts.\nf.\nTransfers of this agreement. If one of us transfers this agreement, we will not disclose the other's confidential information to the\ntransferee without the other's consent.\ng.\nEnforceability. If any provision of this agreement is unenforceable, the parties (or, if we cannot agree, a court) will revise it so that it can\nbe enforced. Even if no revision is possible, the rest of this agreement will remain in place.\nh.\nEntire agreement. This agreement does not grant any implied intellectual property licenses to confidential information, except as stated\nabove. We may have contracts with each other covering other specific aspects of our relationship ("other contracts"). The other contract\nmay include commitments about confidential information, either within it or by referencing another non-disclosure agreement. If so,\nthose obligations remain in place for purposes of that other contract. With this exception, this is the entire agreement between us\nregarding confidential information. It replaces all other agreements and understanding regarding confidential information. We can only\nchange this agreement with a signed document that states that is changing this agreement.\nLOGO\nExhibit Page 4\nE Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been\nrequested with respect to the omitted portions.	EXHIBIT B: MICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\nLOGO\nNon-Disclosure Agreement\nThis Non-Disclosure Agreement (“agreement”) is between the parties signing below. “We,” “us” and “our” refer to both of the parties signing below\nand our respective affiliates.\nCOMPANY AND ITS AFFILIATES or\nINDIVIDUAL: Rainmaker Systems\nMICROSOFT CORPORATION\nAND ITS AFFILIATES\nAddress: 8701 N Mopac\nOne Microsoft Way\nAustin\nTX 78759\nRedmond, WA 98052-6399\nUSA\nUSA\nSign:\nLOGO\nLOGO\nPrint Name: Rick Cassizzi\nMary E. Snapp\nPrint Title: Controller\nCorporate Vice President, Deputy General Counsel\nSignature Date: 5.19.08\n05/19/2008\n1. The purpose of this agreement. This agreement allows us to disclose confidential information to each other, to our own affiliates and to the\nother ’s affiliates, under the following terms. An “affiliate” is any legal entity that one of us owns, that owns one of us or that is under common\ncontrol with one of us. “Control” and “own” mean possessing a 50% or greater interest in entity or the right to direct the management of the entity.\n2. Confidential Information.\na.\nWhat is included. “Confidential Information” is non-public information, know-how and trade secrets in any form that:\n•\nAre designated as “confidential”; or\n•\nA reasonable person knows or reasonably should understand to be confidential.\nb. What is not included. The following types of information, however marked, are not confidential information. Information that:\n•\nIs, or becomes, publicly available without a breach of this agreement;\n•\nWas lawfully known to the receiver of the information without an obligation to keep it confidential;\nMicrosoft filing instruction: after both parties sign and date this Agreement, Your customer should retain one original for their files and return the\nother to you. Then, address the second original to:\nNDA, CRM 124/Records\nMicrosoft Corporation\n1 Microsoft Way\nRedmond, WA 98052-6399\nLOGO\nJEAID: 133205\nExhibit Page 2\n**** = Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been\nrequested with respect to the omitted portions.\n•\nIs received from another source who can disclose it lawfully and without an obligation to keep it confidential;\n•\nIs independently developed; or\n•\nIs a comment or suggestion one of us volunteers about the other’s business, products or services.\n3. Treatment of confidential information.\na.\nIn general. Subject to the other terms of this agreement, each of us agrees:\n•\nWe will not disclose the other’s confidential information to third parties; and\n•\nWe will use and disclose the other’s confidential information only for purposes of our business relationship with each other.\nb. Security precautions. Each of us agrees:\n•\nTo take reasonable steps to protect the other’s confidential information. These steps must be at least as protective as those we take\nto protect our own confidential information;\n•\nTo notify the other promptly upon discovery of any unauthorized use or disclosure of confidential information; and\n•\nTo cooperate with the other to help regain control of the confidential information and prevent further unauthorized use or\ndisclosure of it.\nc.\nSharing confidential information with affiliates and representatives.\n•\nA “representative” is an employee, contractor, advisor or consultant of one of us or one of our respective affiliates.\n•\nEach of us may disclose the other’s confidential information to our representatives (who may then disclose that confidential\ninformation to other of our representatives) only if those representatives have a need to know about it for purposes of our business\nrelationship with each other. Before doing so, each of us must:\n•\nensure that affiliates and representatives are required to protect the confidential information on terms consistent with this\nagreement; and\n•\naccept responsibility for each representative’s use of confidential information.\n•\nNeither of us is required to restrict work assignments of representatives who have had access to confidential information. Neither\nof us can control the incoming information the other will disclose to us in the course of working together, or what our\nrepresentatives will remember, even without notes or other aids. We agree that use of information in representatives’ unaided\nmemories in the development or deployment of our respective products or services does not create liability under this agreement\nor trade secret law, and we agree to limit what we disclose to the other accordingly.\nd. Disclosing confidential information if required to by law. Each of us may disclose the other’s confidential information if required to\ncomply with a court order or other government demand that has the force of law. Before doing so, each of us must seek the highest level\nof protection available and, when possible, give the other enough prior notice to provide a reasonable chance to seek a protective order.\nLOGO\nExhibit Page 3\n**** = Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been\nrequested with respect to the omitted portions.\n4. Length of confidential information obligations.\na.\nTermination. This agreement continues in effect until one of us terminates it. Either of us may terminate this agreement for any reason\nby providing the other with 30 days’ advance written notice. Termination of this agreement will not change any of the rights and duties\nmade while this agreement is in effect.\nb. No other use or disclosure of confidential information. Except as permitted above, neither of us will use or disclose the other’s\nconfidential information for five years after we receive it. The five-year time period does not apply if applicable law requires a longer\nperiod.\n5. General rights and obligations.\na.\nLaw that applies; jurisdiction and venue. The laws of the State of Washington govern this agreement. If federal jurisdiction exists, we\neach consent to exclusive jurisdiction and venue in the federal courts in King County, Washington. If not, we each consent to exclusive\njurisdiction and venue in the superior court of King county, Washington.\nb. Compliance with law. Each of us will comply with all export laws that apply to confidential information.\nc.\nWaiver. Any delay or failure of either of us to exercise a right or remedy will not result in a waiver of that, or any other, right or remedy.\nd. Money damages insufficient. Each of us acknowledges that money damages may not be sufficient compensation for a breach of this\nagreement. Each of us agrees that the other may seek court orders to stop confidential information from becoming public in breach of\nthis agreement.\ne.\nAttorneys’ fees. In any dispute relating to this agreement the prevailing party will be entitled to recover reasonable attorneys’ fees and\ncosts.\nf. Transfers of this agreement. If one of us transfers this agreement, we will not disclose the other’s confidential information to the\ntransferee without the other’s consent.\ng. Enforceability. If any provision of this agreement is unenforceable, the parties (or, if we cannot agree, a court) will revise it so that it can\nbe enforced. Even if no revision is possible, the rest of this agreement will remain in place.\nh. Entire agreement. This agreement does not grant any implied intellectual property licenses to confidential information, except as stated\nabove. We may have contracts with each other covering other specific aspects of our relationship (“other contracts”). The other contract\nmay include commitments about confidential information, either within it or by referencing another non-disclosure agreement. If so,\nthose obligations remain in place for purposes of that other contract. With this exception, this is the entire agreement between us\nregarding confidential information. It replaces all other agreements and understanding regarding confidential information. We can only\nchange this agreement with a signed document that states that is changing this agreement.\nLOGO\nExhibit Page 4\n**** = Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been\nrequested with respect to the omitted portions.
+332c82a5815a7f2fcabac7c5c1a92485.pdf	effective_date jurisdiction party term	EX-99.9 11 d429384dex999.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT 99.9\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of January 11, 2012, between OPNET Technologies, Inc., a\nDelaware corporation (“OPNET”), and Riverbed Technology, Inc. (“RIVERBED”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving OPNET and RIVERBED (referred to\ncollectively as the “Parties” and individually as a “Party”), each Party has either requested or may request access to certain non-public information\nregarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement\nas the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient.”) This Agreement\nsets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 4 below, neither the Recipient nor any of the\nRecipient’s Representatives (as defined in Section 14 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 14 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions reasonably necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential\nInformation.\n2. Contact Persons. Any request by RIVERBED or any of its Representatives to review any of OPNET’s Confidential Information must be\ndirected to OPNET’s representatives from Lazard, Marc A. Cohen, Alain J. Cohen, Mel Wesley, or Dennis McCoy, or as otherwise authorized by the\nOPNET. Neither RIVERBED nor any of its Representatives will contact or otherwise communicate with any other Representative of OPNET in\nconnection with a possible negotiated transaction without the prior written authorization of OPNET.\n3. No Representations by Provider. The Provider will have the exclusive authority to decide what Confidential Information (if any) of the\nProvider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of its Representatives has made or is making\nany representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither\nthe Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s\nRepresentatives on any basis (including, without limitation, in contract, tort or under United States federal or state\nsecurities laws or otherwise) relating to or resulting from the use of any of the Provider ’s Confidential Information or\nany inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are\nincluded in any final definitive written agreement that provides for the consummation of a negotiated transaction\nbetween the Parties and is validly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient\nevaluate or negotiate a possible negotiated transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed\nto abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this\nAgreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If prior to disclosing certain specific Confidential Information, the Provider delivers to the Recipient a written notice stating that the\ncertain Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient, then, notwithstanding anything\nto the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential\nInformation to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid\nlegal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with\nwritten notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The\nRecipient and its Representatives will reasonably cooperate with the Provider and the Provider’s Representatives in any attempt by the Provider to\nobtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other\nremedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose\nsuch Confidential Information to the extent legally required; provided, however, that the Recipient and its Representatives will use their reasonable\nbest efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and its Representatives will promptly deliver to the\nProvider, or at the Recipient’s election, destroy any of Provider’s Confidential Information (and all copies thereof) obtained or possessed by the\nRecipient or any of its Representatives; provided, however, that, in the event Recipient and its Representatives elect to destroy such Confidential\nInformation, the Recipient shall deliver to Provider a certificate confirming such destruction. Notwithstanding the foregoing, the Recipient and its\nRepresentatives may retain copies of the Confidential Information to the extent that such retention is required to demonstrate compliance with\napplicable law or governmental rule or regulation, to the extent included in any board or executive documents relating to the proposed business\nrelationship, and in its archives for backup purposes subject to the confidentiality provisions of this Agreement. Notwithstanding the delivery to the\nProvider (or the destruction or retention by the Recipient or its Representatives) of Confidential Information of the Provider pursuant to this\nSection 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other respective obligations under\nthis Agreement and shall not access such information for any purpose other than to destroy or delete it or as may be required by applicable law or\ngovernmental rule or regulation.\n6. Authority to Disclose Confidential Information; Warranty Disclaimer. Each Party represents that it has the legal right to possess and\ndisclose any Confidential Information disclosed hereunder. The Parties make no express or implied representation or warranty as to the accuracy or\ncompleteness of any of the information furnished to each other or their respective Representatives pursuant hereto. Neither Party nor any of their\nRepresentatives shall have any liability to the other Party or its Representatives relating to or arising from reliance upon the accuracy of any\ninformation or any errors or omissions therein. For purposes of this Section 6, “information” is deemed to include all information furnished by a\nParty or its Representatives to the other Party or its Representatives, regardless of whether such information constitutes “Confidential Information”\nas defined in Section 12. Further, nothing in this Agreement shall be construed as prohibiting or restricting either party from independently\ndeveloping, acquiring, and marketing products, services, and other materials, which are similar to or competitive in any geographic area and in any\nform with the other party’s product(s) or service(s) so long as such party is not in breach of its confidentiality obligations and restrictions of use of\nConfidential Information as set forth in this Agreement.\n7. No Prohibition on Independent Development; Use of Residuals. The terms of this Agreement shall not be construed to limit either\nParty’s right to independently develop or acquire products without use of the other Party’s Confidential Information. Further, the recipient Party shall\nbe free to use for any purpose the residuals resulting from access to or work with the Confidential Information of the disclosing Party, provided that\nthe recipient Party shall not disclose the Confidential Information except as expressly permitted under the terms of this Agreement. The term\n“residuals” means information in intangible form, which is retained in the unaided memory of persons who have had access to the Confidential\nInformation, including ideas, concepts, know-how or techniques contained therein. The recipient Party shall not have any obligation to limit or\nrestrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals, however, this Section shall not be deemed\nto grant to the recipient Party a license under the disclosing Party’s copyrights or patents.\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process\nwithout giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s\nRepresentatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time.\nEach Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the date of\nthis Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any\nother interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising\nout of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended\nexcept by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision\nor provisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly,\neach Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of\nthis Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not be deemed to be the\nexclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In\nthe event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives has\nbreached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the reasonable legal fees\nincurred by the other Party and the other Party’s Representatives in connection with such litigation (including any appeal relating thereto).\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or\nproceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\nproceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and\nunconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or\nproceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought\nin an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has at any time been made available to\nthe Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly\nupon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or\non behalf of the Provider or any of the Provider ’s Representatives, provided that the source of such information was not\nand is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or\nto any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential\nInformation and without reference to or use of Confidential Information.\n13. Trading in Securities. The Recipient acknowledges and agrees that it is aware (and that the Recipient’s Representatives are aware or will\nbe advised by the Recipient) that Confidential Information being furnished by the Provider contains material, non-public information regarding the\nProvider and that the United States securities laws prohibit any Person who has such material, non-public information from purchasing or selling\nsecurities of the Provider on the basis of such information or from communicating such information to any Person under circumstances in which it is\nreasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.\n14. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary\nof such Party or (ii) an officer, director, employee, partner, attorney, advisor, accountant, or agent of such Party or of any of such Party’s subsidiaries\n(excluding if Recipient is a private equity fund or similar fund, any portfolio company). A Party’s Representatives will not include any potential\nfinancing sources, unless OPNET consents in writing to a specific financing source becoming a Representative and the specific financing source\nenters into a separate confidentiality agreement with OPNET.\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any\npatent application containing any claim to any subject matter derived from the Confidential Information of the Provider.\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of\ninterest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual\ndesire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality\nof any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection\nthereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the\nfullest extent possible, the applicability of all such privileges or doctrines.\n(g) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(h) This Agreement shall continue in full force and effect for a period of three years from the effective date of this Agreement. This\nAgreement may be terminated by either party at any time upon ten (10) days written notice to the other party. The termination of this Agreement\nshall not relieve the Recipient of the obligations imposed by Sections 1, 4 5, 9 through 14 inclusive of this Agreement which shall survive any such\ntermination and continue for a period of three (3) years from the date of execution of this Agreement.. Nothing herein is intended to limit or abridge\nthe protection of trade secrets under applicable trade secrets law, and the protection of trade secrets by the Recipient shall be maintained as such until\nthey fall into the public domain.\n(i) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products\nutilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.\n(j) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related\nhereto, including legal notices, shall be in the English language only.\n(k) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by\nfacsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\nThe parties have caused this Agreement to be executed as of January 11, 2012.\nOPNET TECHNOLOGIES, INC.\nRIVERBED TECHNOLOGY, INC.\nBy:\n/s/ Dennis R. McCoy\nBy:\n/s/ Ryan Damon\nTitle:\nChief Legal Officer\nTitle:\nRyan Damon\nVice President\nAddress: 7255 Woodmont Avenue\nBethesda, MD 20814\nAssociate General Counsel\nAddress: 199 Fremont St.\nSan Francisco, CA 94105\nADDENDUM TO CONFIDENTIALITY AGREEMENT\nThis Addendum (“Addendum”) to the Confidentiality Agreement, dated as of November 13, 2012 (“Addendum Effective Date”), is made part of and\nincorporated by reference into the Confidentiality Agreement, dated as of January 11, 2012 (the “NDA”), between OPNET Technologies, Inc.\n(“OPNET”) and Riverbed Technology, Inc. (“Riverbed”). All capitalized terms used in this Addendum that are not defined herein shall have the\nmeaning given to them in the NDA.\n1. As of the Addendum Effective Date, neither Riverbed nor any of Riverbed’s Representatives shall disclose to any Person, including any\nRepresentative of Riverbed, any Confidential Information disclosed by OPNET, other than to the designated Representatives of Riverbed set forth\nfrom time to time on Exhibit A hereto (collectively, the “Riverbed Integration Team”); provided, members of the Riverbed Integration Team may\nshare an aggregated summary of relevant information (“Summary Information”) with Representatives of Riverbed who are not members of the\nRiverbed Integration Team, only after such Summary Information is reviewed and agreed to by OPNET’s outside antitrust counsel on behalf of\nOPNET. Notwithstanding anything to the contrary contained herein, at any time, or from time to time, Riverbed may designate additional\nRepresentatives of Riverbed as members of the Riverbed Integration Team by delivery of a revised Exhibit A to OPNET.\n2. As of the Addendum Effective Date, neither OPNET nor any of OPNET’s Representatives shall disclose to any Person, including any\nRepresentative of OPNET, any Confidential Information disclosed by Riverbed, other than to the designated Representatives of OPNET set forth\nfrom time to time on Exhibit B hereto (the “OPNET Integration Team”); provided, members of the OPNET Integration Team may share Summary\nInformation with Representatives of OPNET who are not members of the OPNET Integration Team, only after such Summary Information is\nreviewed and agreed to by Riverbed’s outside antitrust counsel on behalf of Riverbed. Notwithstanding anything to the contrary contained herein, at\nany time, or from time to time, OPNET may designate additional Representatives of OPNET as members of the OPNET Integration Team by\ndelivery of a revised Exhibit B to Riverbed.\n3. Each of OPNET and Riverbed hereby agree that any Confidential Information furnished to it will be used on and after the Addendum\nEffective Date only for the sole and limited purpose of integration planning and for no other purpose, other than in compliance with Section 2 or\nSection 3, as applicable, of this Addendum.\n4. This Addendum to the NDA shall be binding upon all signatories until the earlier to occur of: (a) the period of and as specified in the NDA;\nor (b) the effective time of the merger of Acquisition Sub with and into OPNET pursuant to the Merger Agreement.\n[Remainder of page left intentionally blank]\nThe parties have caused this Addendum to Confidentially Agreement to be executed as of the date first written above.\nRIVERBED TECHNOLOGY, INC.\nBy:\n/s/ Jerry M. Kennelly\nName: Jerry M. Kennelly\nTitle: Chairman and Chief Executive Officer\nACKNOWLEDGED AND AGREED:\nOPNET TECHNOLOGIES, INC.\nBy:\n/s/ Marc A. Cohen\nName: Marc A. Cohen\nTitle: Chairman and Chief Executive Officer	EX-99.9 11 d429384dex999.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT 99.9\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of January 11, 2012, between OPNET Technologies, Inc., a\nDelaware corporation (“OPNET?”), and Riverbed Technology, Inc. (“RIVERBED”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving OPNET and RIVERBED (referred to\ncollectively as the “Parties” and individually as a “Party”), each Party has either requested or may request access to certain non-public information\nregarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement\nas the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient.”) This Agreement\nsets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 4 below, neither the Recipient nor any of the\nRecipient’s Representatives (as defined in Section 14 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 14 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions reasonably necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential\nInformation.\n2. Contact Persons. Any request by RIVERBED or any of its Representatives to review any of OPNET’s Confidential Information must be\ndirected to OPNET’s representatives from Lazard, Marc A. Cohen, Alain J. Cohen, Mel Wesley, or Dennis McCoy, or as otherwise authorized by the\nOPNET. Neither RIVERBED nor any of its Representatives will contact or otherwise communicate with any other Representative of OPNET in\nconnection with a possible negotiated transaction without the prior written authorization of OPNET.\n3. No Representations by Provider. The Provider will have the exclusive authority to decide what Confidential Information (if any) of the\nProvider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of its Representatives has made or is making\nany representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither\nthe Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s\nRepresentatives on any basis (including, without limitation, in contract, tort or under United States federal or state\nsecurities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or\nany inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are\nincluded in any final definitive written agreement that provides for the consummation of a negotiated transaction\nbetween the Parties and is validly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient\nevaluate or negotiate a possible negotiated transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed\nto abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this\nAgreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If prior to disclosing certain specific Confidential Information, the Provider delivers to the Recipient a written notice stating that the\ncertain Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient, then, notwithstanding anything\nto the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential\nInformation to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid\nlegal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with\nwritten notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The\nRecipient and its Representatives will reasonably cooperate with the Provider and the Provider’s Representatives in any attempt by the Provider to\nobtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other\nremedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose\nsuch Confidential Information to the extent legally required; provided, however, that the Recipient and its Representatives will use their reasonable\nbest efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and its Representatives will promptly deliver to the\nProvider, or at the Recipient’s election, destroy any of Provider’s Confidential Information (and all copies thereof) obtained or possessed by the\nRecipient or any of its Representatives; provided, however, that, in the event Recipient and its Representatives elect to destroy such Confidential\nInformation, the Recipient shall deliver to Provider a certificate confirming such destruction. Notwithstanding the foregoing, the Recipient and its\nRepresentatives may retain copies of the Confidential Information to the extent that such retention is required to demonstrate compliance with\napplicable law or governmental rule or regulation, to the extent included in any board or executive documents relating to the proposed business\nrelationship, and in its archives for backup purposes subject to the confidentiality provisions of this Agreement. Notwithstanding the delivery to the\nProvider (or the destruction or retention by the Recipient or its Representatives) of Confidential Information of the Provider pursuant to this\nSection 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other respective obligations under\nthis Agreement and shall not access such information for any purpose other than to destroy or delete it or as may be required by applicable law or\ngovernmental rule or regulation.\n6. Authority to Disclose Confidential Information; Warranty Disclaimer. Each Party represents that it has the legal right to possess and\ndisclose any Confidential Information disclosed hereunder. The Parties make no express or implied representation or warranty as to the accuracy or\ncompleteness of any of the information furnished to each other or their respective Representatives pursuant hereto. Neither Party nor any of their\nRepresentatives shall have any liability to the other Party or its Representatives relating to or arising from reliance upon the accuracy of any\ninformation or any errors or omissions therein. For purposes of this Section 6, “information” is deemed to include all information furnished by a\nParty or its Representatives to the other Party or its Representatives, regardless of whether such information constitutes “Confidential Information”\nas defined in Section 12. Further, nothing in this Agreement shall be construed as prohibiting or restricting either party from independently\ndeveloping, acquiring, and marketing products, services, and other materials, which are similar to or competitive in any geographic area and in any\nform with the other party’s product(s) or service(s) so long as such party is not in breach of its confidentiality obligations and restrictions of use of\nConfidential Information as set forth in this Agreement.\n7. No Prohibition on Independent Development; Use of Residuals. The terms of this Agreement shall not be construed to limit either\nParty’s right to independently develop or acquire products without use of the other Party’s Confidential Information. Further, the recipient Party shall\nbe free to use for any purpose the residuals resulting from access to or work with the Confidential Information of the disclosing Party, provided that\nthe recipient Party shall not disclose the Confidential Information except as expressly permitted under the terms of this Agreement. The term\n“residuals” means information in intangible form, which is retained in the unaided memory of persons who have had access to the Confidential\nInformation, including ideas, concepts, know-how or techniques contained therein. The recipient Party shall not have any obligation to limit or\nrestrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals, however, this Section shall not be deemed\nto grant to the recipient Party a license under the disclosing Party’s copyrights or patents.\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process\nwithout giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s\nRepresentatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time.\nEach Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the date of\nthis Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any\nother interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising\nout of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended\nexcept by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision\nor provisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly,\neach Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of\nthis Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not be deemed to be the\nexclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In\nthe event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives has\nbreached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the reasonable legal fees\nincurred by the other Party and the other Party’s Representatives in connection with such litigation (including any appeal relating thereto).\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or\nproceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\nproceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and\nunconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or\nproceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought\nin an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has at any time been made available to\nthe Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly\nupon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or\non behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was not\nand is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or\nto any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential\nInformation and without reference to or use of Confidential Information.\n13. Trading in Securities. The Recipient acknowledges and agrees that it is aware (and that the Recipient’s Representatives are aware or will\nbe advised by the Recipient) that Confidential Information being furnished by the Provider contains material, non-public information regarding the\nProvider and that the United States securities laws prohibit any Person who has such material, non-public information from purchasing or selling\nsecurities of the Provider on the basis of such information or from communicating such information to any Person under circumstances in which it is\nreasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.\n14. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary\nof such Party or (ii) an officer, director, employee, partner, attorney, advisor, accountant, or agent of such Party or of any of such Party’s subsidiaries\n(excluding if Recipient is a private equity fund or similar fund, any portfolio company). A Party’s Representatives will not include any potential\nfinancing sources, unless OPNET consents in writing to a specific financing source becoming a Representative and the specific financing source\nenters into a separate confidentiality agreement with OPNET.\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any\npatent application containing any claim to any subject matter derived from the Confidential Information of the Provider.\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of\ninterest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties” mutual\ndesire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality\nof any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection\nthereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the\nfullest extent possible, the applicability of all such privileges or doctrines.\n(g) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(h) This Agreement shall continue in full force and effect for a period of three years from the effective date of this Agreement. This\nAgreement may be terminated by either party at any time upon ten (10) days written notice to the other party. The termination of this Agreement\nshall not relieve the Recipient of the obligations imposed by Sections 1, 4 5, 9 through 14 inclusive of this Agreement which shall survive any such\ntermination and continue for a period of three (3) years from the date of execution of this Agreement.. Nothing herein is intended to limit or abridge\nthe protection of trade secrets under applicable trade secrets law, and the protection of trade secrets by the Recipient shall be maintained as such until\nthey fall into the public domain.\n(i) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products\nutilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.\n(j) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related\nhereto, including legal notices, shall be in the English language only.\n(k) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by\nfacsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\nThe parties have caused this Agreement to be executed as of January 11, 2012.\nOPNET TECHNOLOGIES, INC. RIVERBED TECHNOLOGY, INC.\nBy: /s/ Dennis R. McCoy By: /s/ Ryan Damon\nTitle: Chief Legal Officer Title: Ryan Damon\nVice President\nAddress: 7255 Woodmont Avenue Associate General Counsel\nBethesda, MD 20814\nAddress: 199 Fremont St.\nSan Francisco, CA 94105\nADDENDUM TO CONFIDENTIALITY AGREEMENT\nThis Addendum (“Addendum”) to the Confidentiality Agreement, dated as of November 13, 2012 (“Addendum Effective Date”), is made part of and\nincorporated by reference into the Confidentiality Agreement, dated as of January 11, 2012 (the “NDA”), between OPNET Technologies, Inc.\n(“OPNET?”) and Riverbed Technology, Inc. (“Riverbed”). All capitalized terms used in this Addendum that are not defined herein shall have the\nmeaning given to them in the NDA.\n1. As of the Addendum Effective Date, neither Riverbed nor any of Riverbed’s Representatives shall disclose to any Person, including any\nRepresentative of Riverbed, any Confidential Information disclosed by OPNET, other than to the designated Representatives of Riverbed set forth\nfrom time to time on Exhibit A hereto (collectively, the “Riverbed Integration Team”); provided, members of the Riverbed Integration Team may\nshare an aggregated summary of relevant information (“Summary Information”) with Representatives of Riverbed who are not members of the\nRiverbed Integration Team, only after such Summary Information is reviewed and agreed to by OPNET’s outside antitrust counsel on behalf of\nOPNET. Notwithstanding anything to the contrary contained herein, at any time, or from time to time, Riverbed may designate additional\nRepresentatives of Riverbed as members of the Riverbed Integration Team by delivery of a revised Exhibit A to OPNET.\n \n2. As of the Addendum Effective Date, neither OPNET nor any of OPNET’s Representatives shall disclose to any Person, including any\nRepresentative of OPNET, any Confidential Information disclosed by Riverbed, other than to the designated Representatives of OPNET set forth\nfrom time to time on Exhibit B hereto (the “OPNET Integration Team”); provided, members of the OPNET Integration Team may share Summary\nInformation with Representatives of OPNET who are not members of the OPNET Integration Team, only after such Summary Information is\nreviewed and agreed to by Riverbed’s outside antitrust counsel on behalf of Riverbed. Notwithstanding anything to the contrary contained herein, at\nany time, or from time to time, OPNET may designate additional Representatives of OPNET as members of the OPNET Integration Team by\ndelivery of a revised Exhibit B to Riverbed.\n3. Each of OPNET and Riverbed hereby agree that any Confidential Information furnished to it will be used on and after the Addendum\nEffective Date only for the sole and limited purpose of integration planning and for no other purpose, other than in compliance with Section 2 or\nSection 3, as applicable, of this Addendum.\n4. This Addendum to the NDA shall be binding upon all signatories until the earlier to occur of: (a) the period of and as specified in the NDA;\nor (b) the effective time of the merger of Acquisition Sub with and into OPNET pursuant to the Merger Agreement.\n[Remainder of page left intentionally blank]\nThe parties have caused this Addendum to Confidentially Agreement to be executed as of the date first written above.\nRIVERBED TECHNOLOGY, INC.\nBy: /s/ Jerry M. Kennelly\nName: Jerry M. Kennelly\nTitle:  Chairman and Chief Executive Officer\nACKNOWLEDGED AND AGREED:\nOPNET TECHNOLOGIES, INC.\nBy: /s/ Marc A. Cohen\nName: Marc A. Cohen\nTitle:  Chairman and Chief Executive Officer	EX-99.9 11 d429384dex999.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT 99.9\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT ("Agreement") is being entered into as of January 11, 2012, between OPNET Technologies, Inc., a\nDelaware corporation ("OPNET"), and Riverbed Technology, Inc. ("RIVERBED").\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving OPNET and RIVERBED (referred to\ncollectively as the "Parties" and individually as a "Party"), each Party has either requested or may request access to certain non-public information\nregarding the other Party and the other Party's subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement\nas\nthe\n"Provider"; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the "Recipient.") This Agreement\nsets forth the Parties' obligations regarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 4 below, neither the Recipient nor any of the\nRecipient's Representatives (as defined in Section 14 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider's Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider's Confidential Information to any other Person (as defined in Section 14 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions reasonably necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider's Confidential\nInformation.\n2. Contact Persons. Any request by RIVERBED or any of its Representatives to review any of OPNET'S Confidential Information must be\ndirected to OPNET'S representatives from Lazard, Marc A. Cohen, Alain J. Cohen, Mel Wesley, or Dennis McCoy, or as otherwise authorized by the\nOPNET. Neither RIVERBED nor any of its Representatives will contact or otherwise communicate with any other Representative of OPNET in\nconnection with a possible negotiated transaction without the prior written authorization of OPNET.\n3. No Representations by Provider. The Provider will have the exclusive authority to decide what Confidential Information (if any) of the\nProvider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of its Representatives has made or is making\nany representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider's Confidential Information,\nand\nneither\nthe Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient's\nRepresentatives on any basis (including, without limitation, in contract, tort or under United States federal or state\nsecurities laws or otherwise) relating to or resulting from the use of any of the Provider's Confidential Information or\nany inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are\nincluded in any final definitive written agreement that provides for the consummation of a negotiated transaction\nbetween the Parties and is validly executed on behalf of the Parties (a "Definitive Agreement") will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient's disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidentia Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient\nevaluate or negotiate a possible negotiated transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed\nto abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in\nthis\nAgreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmenta regulation or by valid legal process.\n(b) If prior to disclosing certain specific Confidential Information, the Provider delivers to the Recipient a written notice stating that the\ncertain\nConfidential Information of the Provider may be disclosed only to specified Representatives of the Recipient, then, notwithstanding anything\nto the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential\nInformation to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient's Representatives is required by law or governmental regulation or by subpoena or other valid\nlegal\nprocess to disclose any of the Provider's Confidential Information to any Person, then the Recipient will promptly provide the Provider with\nwritten notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The\nRecipient and its Representatives will reasonably cooperate with the Provider and the Provider's Representatives in any attempt by the Provider\nto\nobtain\nany\nsuch\nprotective\norder\nor\nother\nremedy.\nIf\nthe\nProvider\nelects\nnot\nto\nseek,\nor\nis\nunsuccessful\nin\nobtaining,\nany\nsuch\nprotective\norder\nor\nother\nremedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose\nsuch Confidential Information to the extent legally required; provided, however, that the Recipient and its Representatives will use their reasonable\nbest efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider's request, the Recipient and its Representatives will promptly deliver to the\nProvider, or at the Recipient's election, destroy any of Provider's Confidential Information (and all copies thereof) obtained or possessed by the\nRecipient or any of its Representatives; provided, however, that, in the event Recipient and its Representatives elect to destroy such Confidential\nInformation, the Recipient shall deliver to Provider a certificate confirming such destruction. Notwithstanding the foregoing, the Recipient and\nits\nRepresentatives may retain copies of the Confidential Information to the extent that such retention is required to demonstrate compliance with\napplicable law or governmental rule or regulation, to the extent included in any board or executive documents relating to the proposed business\nrelationship, and in its archives for backup purposes subject to the confidentiality provisions of this Agreement. Notwithstanding the delivery to\nthe\nProvider (or the destruction or retention by the Recipient or its Representatives) of Confidential Information of the Provider pursuant to this\nSection 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other respective obligations under\nthis Agreement and shall not access such information for any purpose other than to destroy or delete it or as may be required by applicable law or\ngovernmental rule or regulation.\n6. Authority to Disclose Confidential Information; Warranty Disclaimer. Each Party represents that it has the legal right to possess and\ndisclose any Confidential Information disclosed hereunder. The Parties make no express or implied representation or warranty as to the accuracy or\ncompleteness of any of the information furnished to each other or their respective Representatives pursuant hereto. Neither Party nor any of their\nRepresentatives shall have any liability to the other Party or its Representatives relating to or arising from reliance upon the accuracy of any\ninformation or any errors or omissions therein. For purposes of this Section 6, "information" is deemed to include all information furnished by\na\nParty or its Representatives to the other Party or its Representatives, regardless of whether such information constitutes "Confidentia Information"\nas defined in Section 12. Further, nothing in this Agreement shall be construed as prohibiting or restricting either party from independently\ndeveloping, acquiring, and marketing products, services, and other materials, which are similar to or competitive in any geographic area and in any\nform with the other party's product(s) or service(s) so long as such party is not in breach of its confidentiality obligations and restrictions\nof\nuse\nof\nConfidential Information as set forth in this Agreement.\n7. No Prohibition on Independent Development; Use of Residuals. The terms of this Agreement shall not be construed to limit either\nParty's right to independently develop or acquire products without use of the other Party's Confidential Information. Further, the recipient Party shall\nbe free to use for any purpose the residuals resulting from access to or work with the Confidential Information of the disclosing Party, provided\nthat\nthe recipient Party shall not disclose the Confidential Information except as expressly permitted under the terms of this Agreement. The term\n"residuals" means information in intangible form, which is retained in the unaided memory of persons who have had access to the Confidential\nInformation, including ideas, concepts, know-how or techniques contained therein. The recipient Party shall not have any obligation to limit or\nrestrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals, however, this Section shall not be\ndeemed\nto grant to the recipient Party a license under the disclosing Party's copyrights or patents.\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process\nwithout giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party's\nRepresentatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time.\nEach\nParty recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the date\nof\nthis Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any\nother interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party's Representatives arising\nout of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended\nexcept by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision\nor provisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party's Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly,\neach Party wil also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of\nthis Agreement by the other Party or any of the other Party's Representatives. The equitable remedies referred to above will not be deemed to be the\nexclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties.\nIn\nthe event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives\nhas\nbreached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party's Representatives, the reasonable legal\nfees\nincurred by the other Party and the other Party's Representatives in connection with such litigation (including any appeal relating thereto).\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit\nor\nproceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit\nor\nproceeding\narising\nout\nof\nor\nrelating\nto\nthis\nAgreement\nin\nany\nstate\nor\nfederal\ncourt\nlocated\nin\nthe\nState\nof\nDelaware;\nand\n(d)\nirrevocably\nand\nunconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or\nproceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought\nin an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement the Provider's "Confidential Information" will be deemed to include only the\nfollowing:\n(a)\nany\ninformation\n(including\nany\ntechnology,\nknow-how,\npatent\napplication,\ntest\nresult,\nresearch\nstudy,\nbusiness\nplan,\nbudget,\nforecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has at any time been made available to\nthe Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly\nupon any information of the type referred to in clause "(a)" of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause "(a)" of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\nHowever, the Provider's "Confidential Information" will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient's Representatives;\n(ii) any information that was in the Recipient's possession prior to the time it was first made available to the Recipient or any of\nthe Recipient's Representatives by or\non behalf of the Provider or any of the Provider's Representatives, provided that the source of such information was not\nand is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or\nto any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany\nof the Provider's Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential\nInformation and without reference to or use of Confidential Information.\n13. Trading in Securities. The Recipient acknowledges and agrees that it is aware (and that the Recipient's Representatives are aware or will\nbe advised by the Recipient) that Confidential Information being furnished by the Provider contains material, non-public information regarding the\nProvider and that the United States securities laws prohibit any Person who has such material, non-public information from purchasing or selling\nsecurities\nof\nthe\nProvider\non\nthe\nbasis\nof\nsuch\ninformation\nor\nfrom\ncommunicating\nsuch\ninformation\nto\nany\nPerson\nunder\ncircumstances\nin\nwhich\nit\nis\nreasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.\n14. Miscellaneous.\n(a) For purposes of this Agreement, a Party's "Representatives" will be deemed to include each Person that is or becomes (i) a subsidiary\nof such Party or (ii) an officer, director, employee, partner, attorney, advisor, accountant, or agent of such Party or of any of such Party's subsidiaries\n(excluding if Recipient is a private equity fund or similar fund, any portfolio company). A Party's Representatives will not include any potential\nfinancing sources, unless OPNET consents in writing to a specific financing source becoming a Representative and the specific financing source\nenters into a separate confidentiality agreement with OPNET.\n(b) The term "Person," as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient's Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient's Representatives shall file any\npatent application containing any claim to any subject matter derived from the Confidential Information of the Provider.\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of\ninterest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties' mutual\ndesire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality\nof any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled\nto\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection\nthereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the\nfullest extent possible, the applicability of all such privileges or doctrines.\n(g) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(h) This Agreement shall continue in full force and effect for a period of three years from the effective date of this Agreement. This\nAgreement may be terminated by either party at any time upon ten (10) days written notice to the other party. The termination of this Agreement\nshall not relieve the Recipient of the obligations imposed by Sections 1, 4 5, 9 through 14 inclusive of this Agreement which shall survive any such\ntermination and continue for a period of three (3) years from the date of execution of this Agreement.. Nothing herein is intended to limit or abridge\nthe protection of trade secrets under applicable trade secrets law, and the protection of trade secrets by the Recipient shall be maintained as such until\nthey fal into the public domain.\n(i) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products\nutilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.\n(j) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related\nhereto, including legal notices, shall be in the English language only.\n(k) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by\nfacsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\nThe parties have caused this Agreement to be executed as of January 11, 2012.\nOPNET TECHNOLOGIES, INC.\nRIVERBED TECHNOLOGY, INC.\nBy:\n/s/ Dennis R. McCoy\nBy:\n/s/ Ryan Damon\nTitle:\nChief Legal Officer\nTitle:\nRyan Damon\nVice President\nAddress: 7255 Woodmont Avenue\nAssociate General Counsel\nBethesda, MD 20814\nAddress: 199 Fremont St.\nSan Francisco, CA 94105\nADDENDUM TO CONFIDENTIALITY AGREEMENT\nThis Addendum ("Addendum") to the Confidentiality Agreement, dated as of November 13, 2012 ("Addendum Effective Date"), is made part of and\nincorporated by reference into the Confidentiality Agreement, dated as of January 11, 2012 (the "NDA"), between OPNET Technologies, Inc.\n("OPNET") and Riverbed Technology, Inc. ("Riverbed"). All capitalized terms used in this Addendum that are not defined herein shall have the\nmeaning given to them in the NDA.\n1. As of the Addendum Effective Date, neither Riverbed nor any of Riverbed's Representatives shall disclose to any Person, including any\nRepresentative of Riverbed, any Confidential Information disclosed by OPNET, other than to the designated Representatives of Riverbed set forth\nfrom time to time on Exhibit A hereto (collectively, the "Riverbed Integration Team"); provided, members of the Riverbed Integration Team may\nshare an aggregated summary of relevant information ("Summary Information") with Representatives of Riverbed who are not members of the\nRiverbed Integration Team, only after such Summary Information is reviewed and agreed to by OPNET's outside antitrust counsel on behalf of\nOPNET. Notwithstanding anything to the contrary contained herein, at any time, or from time to time, Riverbed may designate additional\nRepresentatives of Riverbed as members of the Riverbed Integration Team by delivery of a revised Exhibit A to OPNET.\n2. As of the Addendum Effective Date, neither OPNET nor any of OPNET'S Representatives shall disclose to any Person, including any\nRepresentative of OPNET, any Confidential Information disclosed by Riverbed, other than to the designated Representatives of OPNET set forth\nfrom time to time on Exhibit B hereto (the "OPNET Integration Team"); provided, members of the OPNET Integration Team may share Summary\nInformation with Representatives of OPNET who are not members of the OPNET Integration Team, only. after such Summary Information\nis\nreviewed and agreed to by Riverbed's outside antitrust counsel on behalf of Riverbed. Notwithstanding anything to the contrary contained herein, at\nany time, or from time to time, OPNET may designate additional Representatives of OPNET as members of the OPNET Integration Team by\ndelivery of a revised Exhibit B to Riverbed.\n3. Each of OPNET and Riverbed hereby agree that any Confidential Information furnished to it will be used on and after the Addendum\nEffective Date only for the sole and limited purpose of integration planning and for no other purpose, other than in compliance with Section 2 or\nSection 3, as applicable, of this Addendum.\n4. This Addendum to the NDA shall be binding upon all signatories until the earlier to occur of: (a) the period of and as specified in the NDA;\nor (b) the effective time of the merger of Acquisition Sub with and into OPNET pursuant to the Merger Agreement.\n[Remainder of page left intentionally blank]\nThe parties have caused this Addendum to Confidentially Agreement to be executed as of the date first written above.\nRIVERBED TECHNOLOGY, INC.\nBy:\n/s/ Jerry M. Kennelly\nName: Jerry M. Kennelly\nTitle:\nChairman and Chief Executive Officer\nACKNOWLEDGED AND AGREED:\nOPNET TECHNOLOGIES, INC.\nBy:\n/s/ Marc A. Cohen\nName: Marc A. Cohen\nTitle:\nChairman and Chief Executive Officer	EX-99.9 11 d429384dex999.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT 99.9\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of January 11, 2012, between OPNET Technologies, Inc., a\nDelaware corporation (“OPNET”), and Riverbed Technology, Inc. (“RIVERBED”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving OPNET and RIVERBED (referred to\ncollectively as the “Parties” and individually as a “Party”), each Party has either requested or may request access to certain non-public information\nregarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement\nas the “Provider”; and each Party, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient.”) This Agreement\nsets forth the Parties’ obligations regarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to Section 4 below, neither the Recipient nor any of the\nRecipient’s Representatives (as defined in Section 14 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 14 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions reasonably necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential\nInformation.\n2. Contact Persons. Any request by RIVERBED or any of its Representatives to review any of OPNET’s Confidential Information must be\ndirected to OPNET’s representatives from Lazard, Marc A. Cohen, Alain J. Cohen, Mel Wesley, or Dennis McCoy, or as otherwise authorized by the\nOPNET. Neither RIVERBED nor any of its Representatives will contact or otherwise communicate with any other Representative of OPNET in\nconnection with a possible negotiated transaction without the prior written authorization of OPNET.\n3. No Representations by Provider. The Provider will have the exclusive authority to decide what Confidential Information (if any) of the\nProvider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of its Representatives has made or is making\nany representation or warranty, express or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither\nthe Provider nor any of its Representatives will have any liability to the Recipient or to any of the Recipient’s\nRepresentatives on any basis (including, without limitation, in contract, tort or under United States federal or state\nsecurities laws or otherwise) relating to or resulting from the use of any of the Provider ’s Confidential Information or\nany inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are\nincluded in any final definitive written agreement that provides for the consummation of a negotiated transaction\nbetween the Parties and is validly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient\nevaluate or negotiate a possible negotiated transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed\nto abide and be bound by the provisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this\nAgreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If prior to disclosing certain specific Confidential Information, the Provider delivers to the Recipient a written notice stating that the\ncertain Confidential Information of the Provider may be disclosed only to specified Representatives of the Recipient, then, notwithstanding anything\nto the contrary contained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential\nInformation to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid\nlegal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with\nwritten notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The\nRecipient and its Representatives will reasonably cooperate with the Provider and the Provider’s Representatives in any attempt by the Provider to\nobtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other\nremedy in connection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose\nsuch Confidential Information to the extent legally required; provided, however, that the Recipient and its Representatives will use their reasonable\nbest efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and its Representatives will promptly deliver to the\nProvider, or at the Recipient’s election, destroy any of Provider’s Confidential Information (and all copies thereof) obtained or possessed by the\nRecipient or any of its Representatives; provided, however, that, in the event Recipient and its Representatives elect to destroy such Confidential\nInformation, the Recipient shall deliver to Provider a certificate confirming such destruction. Notwithstanding the foregoing, the Recipient and its\nRepresentatives may retain copies of the Confidential Information to the extent that such retention is required to demonstrate compliance with\napplicable law or governmental rule or regulation, to the extent included in any board or executive documents relating to the proposed business\nrelationship, and in its archives for backup purposes subject to the confidentiality provisions of this Agreement. Notwithstanding the delivery to the\nProvider (or the destruction or retention by the Recipient or its Representatives) of Confidential Information of the Provider pursuant to this\nSection 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other respective obligations under\nthis Agreement and shall not access such information for any purpose other than to destroy or delete it or as may be required by applicable law or\ngovernmental rule or regulation.\n6. Authority to Disclose Confidential Information; Warranty Disclaimer. Each Party represents that it has the legal right to possess and\ndisclose any Confidential Information disclosed hereunder. The Parties make no express or implied representation or warranty as to the accuracy or\ncompleteness of any of the information furnished to each other or their respective Representatives pursuant hereto. Neither Party nor any of their\nRepresentatives shall have any liability to the other Party or its Representatives relating to or arising from reliance upon the accuracy of any\ninformation or any errors or omissions therein. For purposes of this Section 6, “information” is deemed to include all information furnished by a\nParty or its Representatives to the other Party or its Representatives, regardless of whether such information constitutes “Confidential Information”\nas defined in Section 12. Further, nothing in this Agreement shall be construed as prohibiting or restricting either party from independently\ndeveloping, acquiring, and marketing products, services, and other materials, which are similar to or competitive in any geographic area and in any\nform with the other party’s product(s) or service(s) so long as such party is not in breach of its confidentiality obligations and restrictions of use of\nConfidential Information as set forth in this Agreement.\n7. No Prohibition on Independent Development; Use of Residuals. The terms of this Agreement shall not be construed to limit either\nParty’s right to independently develop or acquire products without use of the other Party’s Confidential Information. Further, the recipient Party shall\nbe free to use for any purpose the residuals resulting from access to or work with the Confidential Information of the disclosing Party, provided that\nthe recipient Party shall not disclose the Confidential Information except as expressly permitted under the terms of this Agreement. The term\n“residuals” means information in intangible form, which is retained in the unaided memory of persons who have had access to the Confidential\nInformation, including ideas, concepts, know-how or techniques contained therein. The recipient Party shall not have any obligation to limit or\nrestrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals, however, this Section shall not be deemed\nto grant to the recipient Party a license under the disclosing Party’s copyrights or patents.\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process\nwithout giving notice to the other Party or any other Person; (b) to reject any proposal made by the other Party or any of the other Party’s\nRepresentatives with respect to a transaction involving such Party; and (c) to terminate discussions and negotiations with the other Party at any time.\nEach Party recognizes that, except as expressly provided in any binding written agreement between the Parties that is executed on or after the date of\nthis Agreement: (i) the other Party and its Representatives will be free to negotiate with, and to enter into any agreement or transaction with, any\nother interested party; and (ii) such Party will not have any rights or claims against the other Party or any of the other Party’s Representatives arising\nout of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended\nexcept by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision\nor provisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly,\neach Party will also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of\nthis Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not be deemed to be the\nexclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In\nthe event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives has\nbreached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the reasonable legal fees\nincurred by the other Party and the other Party’s Representatives in connection with such litigation (including any appeal relating thereto).\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or\nproceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\nproceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and\nunconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or\nproceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought\nin an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has at any time been made available to\nthe Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly\nupon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or\non behalf of the Provider or any of the Provider ’s Representatives, provided that the source of such information was not\nand is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or\nto any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential\nInformation and without reference to or use of Confidential Information.\n13. Trading in Securities. The Recipient acknowledges and agrees that it is aware (and that the Recipient’s Representatives are aware or will\nbe advised by the Recipient) that Confidential Information being furnished by the Provider contains material, non-public information regarding the\nProvider and that the United States securities laws prohibit any Person who has such material, non-public information from purchasing or selling\nsecurities of the Provider on the basis of such information or from communicating such information to any Person under circumstances in which it is\nreasonably foreseeable that such Person is likely to purchase or sell such securities on the basis of such information.\n14. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary\nof such Party or (ii) an officer, director, employee, partner, attorney, advisor, accountant, or agent of such Party or of any of such Party’s subsidiaries\n(excluding if Recipient is a private equity fund or similar fund, any portfolio company). A Party’s Representatives will not include any potential\nfinancing sources, unless OPNET consents in writing to a specific financing source becoming a Representative and the specific financing source\nenters into a separate confidentiality agreement with OPNET.\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any\npatent application containing any claim to any subject matter derived from the Confidential Information of the Provider.\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of\ninterest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual\ndesire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality\nof any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection\nthereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the\nfullest extent possible, the applicability of all such privileges or doctrines.\n(g) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(h) This Agreement shall continue in full force and effect for a period of three years from the effective date of this Agreement. This\nAgreement may be terminated by either party at any time upon ten (10) days written notice to the other party. The termination of this Agreement\nshall not relieve the Recipient of the obligations imposed by Sections 1, 4 5, 9 through 14 inclusive of this Agreement which shall survive any such\ntermination and continue for a period of three (3) years from the date of execution of this Agreement.. Nothing herein is intended to limit or abridge\nthe protection of trade secrets under applicable trade secrets law, and the protection of trade secrets by the Recipient shall be maintained as such until\nthey fall into the public domain.\n(i) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products\nutilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.\n(j) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related\nhereto, including legal notices, shall be in the English language only.\n(k) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by\nfacsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\nThe parties have caused this Agreement to be executed as of January 11, 2012.\nOPNET TECHNOLOGIES, INC.\nRIVERBED TECHNOLOGY, INC.\nBy:\n/s/ Dennis R. McCoy\nBy:\n/s/ Ryan Damon\nTitle:\nChief Legal Officer\nTitle:\nRyan Damon\nVice President\nAddress: 7255 Woodmont Avenue\nBethesda, MD 20814\nAssociate General Counsel\nAddress: 199 Fremont St.\nSan Francisco, CA 94105\nADDENDUM TO CONFIDENTIALITY AGREEMENT\nThis Addendum (“Addendum”) to the Confidentiality Agreement, dated as of November 13, 2012 (“Addendum Effective Date”), is made part of and\nincorporated by reference into the Confidentiality Agreement, dated as of January 11, 2012 (the “NDA”), between OPNET Technologies, Inc.\n(“OPNET”) and Riverbed Technology, Inc. (“Riverbed”). All capitalized terms used in this Addendum that are not defined herein shall have the\nmeaning given to them in the NDA.\n1. As of the Addendum Effective Date, neither Riverbed nor any of Riverbed’s Representatives shall disclose to any Person, including any\nRepresentative of Riverbed, any Confidential Information disclosed by OPNET, other than to the designated Representatives of Riverbed set forth\nfrom time to time on Exhibit A hereto (collectively, the “Riverbed Integration Team”); provided, members of the Riverbed Integration Team may\nshare an aggregated summary of relevant information (“Summary Information”) with Representatives of Riverbed who are not members of the\nRiverbed Integration Team, only after such Summary Information is reviewed and agreed to by OPNET’s outside antitrust counsel on behalf of\nOPNET. Notwithstanding anything to the contrary contained herein, at any time, or from time to time, Riverbed may designate additional\nRepresentatives of Riverbed as members of the Riverbed Integration Team by delivery of a revised Exhibit A to OPNET.\n2. As of the Addendum Effective Date, neither OPNET nor any of OPNET’s Representatives shall disclose to any Person, including any\nRepresentative of OPNET, any Confidential Information disclosed by Riverbed, other than to the designated Representatives of OPNET set forth\nfrom time to time on Exhibit B hereto (the “OPNET Integration Team”); provided, members of the OPNET Integration Team may share Summary\nInformation with Representatives of OPNET who are not members of the OPNET Integration Team, only after such Summary Information is\nreviewed and agreed to by Riverbed’s outside antitrust counsel on behalf of Riverbed. Notwithstanding anything to the contrary contained herein, at\nany time, or from time to time, OPNET may designate additional Representatives of OPNET as members of the OPNET Integration Team by\ndelivery of a revised Exhibit B to Riverbed.\n3. Each of OPNET and Riverbed hereby agree that any Confidential Information furnished to it will be used on and after the Addendum\nEffective Date only for the sole and limited purpose of integration planning and for no other purpose, other than in compliance with Section 2 or\nSection 3, as applicable, of this Addendum.\n4. This Addendum to the NDA shall be binding upon all signatories until the earlier to occur of: (a) the period of and as specified in the NDA;\nor (b) the effective time of the merger of Acquisition Sub with and into OPNET pursuant to the Merger Agreement.\n[Remainder of page left intentionally blank]\nThe parties have caused this Addendum to Confidentially Agreement to be executed as of the date first written above.\nRIVERBED TECHNOLOGY, INC.\nBy:\n/s/ Jerry M. Kennelly\nName: Jerry M. Kennelly\nTitle: Chairman and Chief Executive Officer\nACKNOWLEDGED AND AGREED:\nOPNET TECHNOLOGIES, INC.\nBy:\n/s/ Marc A. Cohen\nName: Marc A. Cohen\nTitle: Chairman and Chief Executive Officer
+3855a47679b01009b03afd3c25fda685.pdf	effective_date jurisdiction party term	EX-10 2 kksconsultingagreementclean1.htm CONSULTING AND CONFIDENTIALITY AGREEMENT WITH KKS VENTURE\nMANAGEMENT, INC.\nCONSULTING AND CONFIDENTIALITY AGREEMENT\nTHIS CONSULTING AGREEMENT (hereinafter the “Agreement”), made and entered\ninto this 25th day of October, 2007, by and between KKS Venture Management Inc. and\nAlfonso Knoll (hereinafter “Consultants”), an independent contractor with a business\naddress of 240 Main Street, Denver PA 17517, and Sanguine Corporation a Nevada\ncorporation (hereinafter “the Company”), (hereinafter together referred to as “the\nParties”).\nThis will confirm the agreement between the Company and the Consultants this 25th day\nof October 2007 as follows:\nWhereas, The Company agrees to engage the Consultants and Consultants agree to\nprovide consulting services to the company for a period of one (1) year; and\nNOW, THEREFORE, in consideration of the mutual covenants set forth in this\nagreement, the Parties agree as follows:\n1. Consulting Services:\nFor a period of twelve (12) months from the date first signed above, Consultants\nwill hold themselves available to provide investor relations services to Company\nas may be requested by it, provided Consultants shall determine in their sole\ndiscretion the time and manner of providing such services. Consultant agrees to\nexercise its best efforts to provide the following services to Company:\n· Help Company in gaining market awareness and explore the possibilities of\na European listing; and\n· Help Company by recommending a capitalization restructure to facilitate an\noffering of $(5,000,000); and\n·\nHelp when appropriate, approaching a larger underwriter to structure a\nsecondary offering for the build out of the Company brand and increase\nthe marking budget.\n·\nForemost, provide such managerial help and consultation as to foster the\ngrowth and performance of the Company.\nConsultants will remain available to provide such services during the term of this\nagreement and Company will continue to compensate Consultants hereunder\nwhether or not it is a subsidiary of, or stockholder of, Company under separate\narrangement. The Consultants shall at all times be independent contractors to the\nCompany and shall not represent or be represented as an employee, partner,\nofficer, director or affiliate of the Company. This Agreement shall automatically\nrenew on a yearly basis on the last day of the twelfth month following execution\n1\nCompany Initials /s/TCD\nConsultant Initials /s/ACK\nof this Agreement each year on the same terms until either party gives written\nnotice of its intent not to renew. Said Notice shall be given at least 1 month\nbefore the renewal date.\nSubject to the terms and conditions of this Agreement, the Consultants accept this\nappointment as an independent contractor to the Company. In no event shall the\nConsultant be obligated to participate in and/or purchase Private Equity and/or\nCredit and Debt Facilities for its own account or for the accounts of any other\nentities or individuals.\n2. Compensation:\nIn consideration of the consulting services of this agreement, Company agrees to\npay Consultant the following:\n· Upon signing this agreement Company will pay to Consultant, three million\n(3,000,000) common shares, in Company with “piggy-back” registration\nrights; and\n·\n675,000 free trading SGNC common shares through a grant from the\nCompany’s Stock Option Plan to Alfonso Knoll personally under a\nseparate Letter Agreement of even date; and\n· After successful completion of a minimum of first $500,000 financing has\nbeen realized by the Company, the Company will pay Consultant Twenty\nThousand $20,000 per month so long as the company can afford to pay it.\nConsultants hereby agree that all payments will be made directly to KKS Venture\nManagement Inc.. The recipient here, KKS Venture Management Inc., LLC is an\nentity in which all three of the equity owners are accredited investors, as that\nphrase is defined in the Act.\n3. Termination; Accelerated Payment:\nIn the event of Consultant’s failure to perform or Company’s failure to pay\nConsultant the non-breaching party may terminate this agreement and any\noutstanding claims shall refer to a panel of Arbitrators.\n4. Confidentiality:\nDuring the course of this agreement, it is likely that each party will come into\ncontact with confidential information crucial to the operation of each parties\nbusiness. Such confidential information may include, without limitation: (i)\nbusiness and financial information, (ii) business methods and practices, (iii)\ntechnology and technological strategies, (iv) marketing strategies and (v) other\nsuch information each Party deems as “Confidential Information”. By their\nsignature below, each party agrees to keep in strict confidence all non-public\ninformation so long as it remains non-public, except to the extent disclosure is\nrequired by law,\n2\nCompany Initials /s/TCD\nConsultant Initials /s/ACK\nrequested by any governmental or regulatory agency or body or to the extent that\nConsultants must disclose information to lenders and equity partners to obtain\nfinancing. Both parties agree not to use the confidential information disclosed to\nthem for their own benefit, or for the benefit of any party with which the\nConsultant or the Company is affiliated. If this agreement is terminated, each\nparty upon request will promptly return to the other party all documents,\ncontracts, records, or other information received by it that disclose or embody\nconfidential information of the other party.\n5. Covenant Not To Circumvent:\nIt is understood that the Consultants will be introducing the Company to equity,\ndebt and other financing parties along with potential purchasers of Company’s\nproduct or suite of products. The Company agrees that its employees, officers,\ndirectors or other consultants will not circumvent this agreement in an endeavor to\nemploy, tempt or cause any investment from Consultants contacts. The Company\nunderstands that such action would constitute a breach of this agreement and\nwould be harmful or damaging to the Consultants business; as a\nresult the\nConsultants would be owed treble damages payable forthwith in cash or kind in\nthe amount of ($100,000).\n6. Consents and Approvals\nBy their signature below, each party agrees they have been duly authorized to\nenter into and execute this agreement and have obtained the approval and consent\nof their respective Boards of Directors, and any other parties, which are\nappropriate or necessary for this agreement.\n7. Jurisdiction:\nThe agreements associated with this transaction will all be subject to\nPennsylvania law. Disputes will be resolved through the use of a nationally\nrecognized arbitration group. The location of any arbitration or legal proceeding\nwill be in the Berks County, Pennsylvania.\n8. Transfer:\nThis Agreement shall not be assigned by either party without the prior written\nconsent of the other party.\n9. Indemnity.\nCompany shall indemnify, defend and hold harmless Consultant from and against\nany and all losses incurred by Consultant which arise out of or result from\nmisrepresentation, breach of warranty or breach or non- fulfillment of any\ncovenant contained herein or Schedules annexed hereto or in any other documents\n3\nCompany Initials /s/TCD\nConsultant Initials /s/ACK\nor instruments furnished by Company pursuant hereto or in connection with this\nAgreement.\n10. Modifications:\nA modification or waiver of any of the provisions of this Agreement shall be\neffective only if made in writing and executed with the same formality as this\nAgreement.\n11. Waiver:\nThe failure of either Party to insist on compliance with any of the terms, covenants,\nor conditions of this Agreement by the other Party shall not be deemed a waiver of\nthat term, covenant, or condition, not shall any waiver or relinquishment of any right\nor power at any time be deemed a waiver or relinquishment of that right or power for\nall or any other times.\n12. Partial Invalidity:\nIf any provision in this Agreement is held by a court of competent jurisdiction be\nfound to be invalid, void, or unenforceable, the remaining provisions shall\nnevertheless continue in full force without being impaired or invalidated in any way.\n13. Attorney's Fees:\nIf any legal action is commenced or necessary to enforce or interrupt the terms of this\nAgreement, the prevailing Party shall be entitled to reasonable attorney's fees, costs,\nand necessary disbursements in addition to any other relief to which that party may be\nentitled.\nIntentionally Blank\n4\nCompany Initials /s/TCD\nConsultant Initials /s/ACK\n14. Entire Agreement:\nThis Agreement supersedes any and all other agreements, either oral or in writing,\nbetween the parties hereto with respect to the engagement of Consultant by Company,\nand contains all of the covenants and agreements between Parties with respect to that\nengagement in any manner whatsoever. Each Party acknowledges that no\nrepresentations, inducements, promises, or agreements, orally or otherwise, have been\nmade by any Party, or anyone acting on behalf of any Party, which are not embodied\nherein, and that no agreement, statement, or promise not contained in this Agreement\nshall be valid or binding on either Party, except that any other written agreement\ndated and signed concurrent with or after this Agreement shall be valid as between\nthe signing Parties thereto.\nAND NOW, intending to be legally bound thereby, the parties had set their hands this 21st\nday; of November, 2007.\nSanguine Corp.\n/s/T. C Drees\nTom Drees, President\nConsultant\n/s/Alfonso Knoll\nSignee\n5\nCompany Initials /s/TCD\nConsultant Initials /s/ACK	EX-10 2 kksconsultingagreementclean1.htm CONSULTING AND CONFIDENTIALITY AGREEMENT WITH KKS VENTURE\nMANAGEMENT, INC.\nCONSULTING AND CONFIDENTIALITY AGREEMENT\nTHIS CONSULTING AGREEMENT (hereinafter the “Agreement”), made and entered\ninto this 25th day of October, 2007, by and between KKS Venture Management Inc. and\nAlfonso Knoll (hereinafter “Consultants”), an independent contractor with a business\naddress of 240 Main Street, Denver PA 17517, and Sanguine Corporation a Nevada\ncorporation (hereinafter “the Company”), (hereinafter together referred to as “the\nParties”).\nThis will confirm the agreement between the Company and the Consultants this 25th day\nof October 2007 as follows:\nWhereas, The Company agrees to engage the Consultants and Consultants agree to\nprovide consulting services to the company for a period of one (1) year; and\nNOW, THEREFORE, in consideration of the mutual covenants set forth in this\nagreement, the Parties agree as follows:\n1. Consulting Services:\nFor a period of twelve (12) months from the date first signed above, Consultants\nwill hold themselves available to provide investor relations services to Company\nas may be requested by it, provided Consultants shall determine in their sole\ndiscretion the time and manner of providing such services. Consultant agrees to\nexercise its best efforts to provide the following services to Company:\n- Help Company in gaining market awareness and explore the possibilities of\na European listing; and\n- Help Company by recommending a capitalization restructure to facilitate an\noffering of $(5,000,000); and\n- Help when appropriate, approaching a larger underwriter to structure a\nsecondary offering for the build out of the Company brand and increase\nthe marking budget.\n- Foremost, provide such managerial help and consultation as to foster the\ngrowth and performance of the Company.\nConsultants will remain available to provide such services during the term of this\nagreement and Company will continue to compensate Consultants hereunder\nwhether or not it is a subsidiary of, or stockholder of, Company under separate\narrangement. The Consultants shall at all times be independent contractors to the\nCompany and shall not represent or be represented as an employee, partner,\nofficer, director or affiliate of the Company. This Agreement shall automatically\nrenew on a yearly basis on the last day of the twelfth month following execution\n1\nCompany Initials /s/TCD Consultant Initials /s/ACK\nof this Agreement each year on the same terms until either party gives written\nnotice of its intent not to renew. Said Notice shall be given at least 1 month\nbefore the renewal date.\nSubject to the terms and conditions of this Agreement, the Consultants accept this\nappointment as an independent contractor to the Company. In no event shall the\nConsultant be obligated to participate in and/or purchase Private Equity and/or\nCredit and Debt Facilities for its own account or for the accounts of any other\nentities or individuals.\n2. Compensation: In consideration of the consulting services of this agreement, Company agrees to\npay Consultant the following:\n- Upon signing this agreement Company will pay to Consultant, three million\n(3,000,000) common shares, in Company with “piggy-back” registration\nrights; and\n- 675,000 free trading SGNC common shares through a grant from the\nCompany’s Stock Option Plan to Alfonso Knoll personally under a\nseparate Letter Agreement of even date; and\n- After successful completion of a minimum of first $500,000 financing has\nbeen realized by the Company, the Company will pay Consultant Twenty\nThousand $20,000 per month so long as the company can afford to pay it.\nConsultants hereby agree that all payments will be made directly to KKS Venture\nManagement Inc.. The recipient here, KKS Venture Management Inc., LLC is an\nentity in which all three of the equity owners are accredited investors, as that\nphrase is defined in the Act.\n3. Termination; Accelerated Payment: In the event of Consultant’s failure to perform or Company’s failure to pay\nConsultant the non-breaching party may terminate this agreement and any\noutstanding claims shall refer to a panel of Arbitrators.\n4. Confidentiality: 2\nDuring the course of this agreement, it is likely that each party will come into\ncontact with confidential information crucial to the operation of each parties\nbusiness. Such confidential information may include, without limitation: (i)\nbusiness and financial information, (ii) business methods and practices, (iii)\ntechnology and technological strategies, (iv) marketing strategies and (v) other\nsuch information each Party deems as “Confidential Information”. By their\nsignature below, each party agrees to keep in strict confidence all non-public\ninformation so long as it remains non-public, except to the extent disclosure is\nrequired by law,\nCompany Initials /s/TCD Consultant Initials /s/ACK\frequested by any governmental or regulatory agency or body or to the extent that\nConsultants must disclose information to lenders and equity partners to obtain\nfinancing. Both parties agree not to use the confidential information disclosed to\nthem for their own benefit, or for the benefit of any party with which the\nConsultant or the Company is affiliated. If this agreement is terminated, each\nparty upon request will promptly return to the other party all documents,\ncontracts, records, or other information received by it that disclose or embody\nconfidential information of the other party.\n5. Covenant Not To Circumvent:\nIt is understood that the Consultants will be introducing the Company to equity,\ndebt and other financing parties along with potential purchasers of Company’s\nproduct or suite of products. The Company agrees that its employees, officers,\ndirectors or other consultants will not circumvent this agreement in an endeavor to\nemploy, tempt or cause any investment from Consultants contacts. The Company\nunderstands that such action would constitute a breach of this agreement and\nwould be harmful or damaging to the Consultants business; as a  result the\nConsultants would be owed treble damages payable forthwith in cash or kind in\nthe amount of ($100,000).\n6. Consents and Approvals\nBy their signature below, each party agrees they have been duly authorized to\nenter into and execute this agreement and have obtained the approval and consent\nof their respective Boards of Directors, and any other parties, which are\nappropriate or necessary for this agreement.\n7. Jurisdiction:\nThe agreements associated with this transaction will all be subject to\nPennsylvania law. Disputes will be resolved through the use of a nationally\nrecognized arbitration group. The location of any arbitration or legal proceeding\nwill be in the Berks County, Pennsylvania.\n8. Transfer:\nThis Agreement shall not be assigned by either party without the prior written\nconsent of the other party.\n9. Indemnity.\nCompany shall indemnify, defend and hold harmless Consultant from and against\nany and all losses incurred by Consultant which arise out of or result from\nmisrepresentation, breach of warranty or breach or non- fulfillment of any\ncovenant contained herein or Schedules annexed hereto or in any other documents\n3\nCompany Initials /s/TCD Consultant Initials /s/ACK\nor instruments furnished by Company pursuant hereto or in connection with this\nAgreement.\n10. Modifications:\nA modification or waiver of any of the provisions of this Agreement shall be\neffective only if made in writing and executed with the same formality as this\nAgreement.\n11. Waiver:\nThe failure of either Party to insist on compliance with any of the terms, covenants,\nor conditions of this Agreement by the other Party shall not be deemed a waiver of\nthat term, covenant, or condition, not shall any waiver or relinquishment of any right\nor power at any time be deemed a waiver or relinquishment of that right or power for\nall or any other times.\n12. Partial Invalidity:\nIf any provision in this Agreement is held by a court of competent jurisdiction be\nfound to be invalid, void, or unenforceable, the remaining provisions shall\nnevertheless continue in full force without being impaired or invalidated in any way.\n13. Attorney's Fees:\nIf any legal action is commenced or necessary to enforce or interrupt the terms of this\nAgreement, the prevailing Party shall be entitled to reasonable attorney's fees, costs,\nand necessary disbursements in addition to any other relief to which that party may be\nentitled.\nIntentionally Blank\n4\nCompany Initials /s/TCD Consultant Initials /s/ACK\n14. Entire Agreement:\nThis Agreement supersedes any and all other agreements, either oral or in writing,\nbetween the parties hereto with respect to the engagement of Consultant by Company,\nand contains all of the covenants and agreements between Parties with respect to that\nengagement in any manner whatsoever. Each Party acknowledges that no\nrepresentations, inducements, promises, or agreements, orally or otherwise, have been\nmade by any Party, or anyone acting on behalf of any Party, which are not embodied\nherein, and that no agreement, statement, or promise not contained in this Agreement\nshall be valid or binding on either Party, except that any other written agreement\ndated and signed concurrent with or after this Agreement shall be valid as between\nthe signing Parties thereto.\nAND NOW, intending to be legally bound thereby, the parties had set their hands this 215\nday; of November, 2007.\nSanguine Corp.\n/s/T. C Drees\nTom Drees, President\nConsultant\n/s/Alfonso Knoll\nSignee\n5\nCompany Initials /s/TCD Consultant Initials /s/ACK	EX-10 2 kksconsultingagreementcleanl.htm CONSULTING AND CONFIDENTIALITY AGREEMENT WITH KKS VENTURE\nMANAGEMENT, INC.\nCONSULTING AND CONFIDENTIALITY AGREEMENT\nTHIS CONSULTING AGREEMENT (hereinafter the "Agreement"), made and entered\ninto this 25th day of October, 2007, by and between KKS Venture Management Inc. and\nAlfonso Knoll (hereinafter "Consultants"), an independent contractor with a business\naddress of 240 Main Street, Denver PA 17517, and Sanguine Corporation a Nevada\ncorporation (hereinafter "the Company"), (hereinafter together referred to as "the\nParties").\nThis will confirm the agreement between the Company and the Consultants this 25th day\nof October 2007 as follows:\nWhereas, The Company agrees to engage the Consultants and Consultants agree to\nprovide consulting services to the company for a period of one (1) year; and\nNOW, THEREFORE, in consideration of the mutual covenants set forth in this\nagreement, the Parties agree as follows:\n1. Consulting Services:\nFor a period of twelve (12) months from the date first signed above, Consultants\nwill hold themselves available to provide investor relations services to Company\nas may be requested by it, provided Consultants shall determine in their sole\ndiscretion the time and manner of providing such services. Consultant agrees to\nexercise its best efforts to provide the following services to Company:\nHelp Company in gaining market awareness and explore the possibilities of\na European listing; and\nHelp Company by recommending a capitalization restructure to facilitate an\noffering of $(5,000,000); and\nHelp when appropriate, approaching a larger underwriter to structure a\nsecondary offering for the build out of the Company brand and increase\nthe marking budget.\nForemost, provide such managerial help and consultation as to foster the\ngrowth and performance of the Company.\nConsultants will remain available to provide such services during the term of this\nagreement and Company will continue to compensate Consultants hereunder\nwhether or not it is a subsidiary of, or stockholder of, Company under separate\narrangement. The Consultants shall at all times be independent contractors to the\nCompany and shall not represent or be represented as an employee, partner,\nofficer, director or affiliate of the Company. This Agreement shall automatically\nrenew on a yearly basis on the last day of the twelfth month following execution\n1\nCompany Initials /S/TCD\nConsultant Initials /S/ACK\nof this Agreement each year on the same terms until either party gives written\nnotice of its intent not to renew. Said Notice shall be given at least 1 month\nbefore the renewal date.\nSubject to the terms and conditions of this Agreement, the Consultants accept this\nappointment as an independent contractor to the Company. In no event shall the\nConsultant be obligated to participate in and/or purchase Private Equity and/or\nCredit and Debt Facilities for its own account or for the accounts of any other\nentities or individuals.\n2. Compensation:\nIn consideration of the consulting services of this agreement, Company agrees to\npay Consultant the following:\nUpon signing this agreement Company will pay to Consultant, three million\n(3,000,000) common shares, in Company with "piggy-back" registration\nrights; and\n675,000 free trading SGNC common shares through a grant from the\nCompany's Stock Option Plan to Alfonso Knoll personally under a\nseparate Letter Agreement of even date; and\nAfter successful completion of a minimum of first $500,000 financing has\nbeen realized by the Company, the Company will pay Consultant Twenty\nThousand $20,000 per month so long as the company can afford to pay it.\nConsultants hereby agree that all payments will be made directly to KKS Venture\nManagement Inc.. The recipient here, KKS Venture Management Inc., LLC is an\nentity in which all three of the equity owners are accredited investors, as that\nphrase is defined in the Act.\n3. Termination; Accelerated Payment:\nIn the event of Consultant's failure to perform or Company's failure to pay\nConsultant the non-breaching party may terminate this agreement and any\noutstanding claims shall refer to a panel of Arbitrators.\n4. Confidentiality:\nDuring the course of this agreement, it is likely that each party will come into\ncontact with confidential information crucial to the operation of each parties\nbusiness. Such confidential information may include, without limitation: (i)\nbusiness and financial information, (ii) business methods and practices, (iii)\ntechnology and technological strategies, (iv) marketing strategies and (v) other\nsuch information each Party deems as "Confidential Information". By their\nsignature below, each party agrees to keep in strict confidence all non-public\ninformation so long as it remains non-public, except to the extent disclosure is\nrequired by law,\n2\nCompany Initials /S/TCD\nConsultant Initials /S/ACK\nrequested by any governmental or regulatory agency or body or to the extent that\nConsultants must disclose information to lenders and equity partners to obtain\nfinancing. Both parties agree not to use the confidential information disclosed to\nthem for their own benefit, or for the benefit of any party with which the\nConsultant or the Company is affiliated. If this agreement is terminated, each\nparty upon request will promptly return to the other party all documents,\ncontracts, records, or other information received by it that disclose or embody\nconfidential information of the other party.\n5. Covenant Not To Circumvent:\nIt is understood that the Consultants will be introducing the Company to equity,\ndebt and other financing parties along with potential purchasers of Company's\nproduct or suite of products. The Company agrees that its employees, officers,\ndirectors or other consultants will not circumvent this agreement in an endeavor to\nemploy, tempt or cause any investment from Consultants contacts. The Company\nunderstands that such action would constitute a breach of this agreement and\nwould be harmful or damaging to the Consultants business; as a result the\nConsultants would be owed treble damages payable forthwith in cash or kind in\nthe amount of ($100,000).\n6. Consents and Approvals\nBy their signature below, each party agrees they have been duly authorized to\nenter into and execute this agreement and have obtained the approval and consent\nof their respective Boards of Directors, and any other parties, which are\nappropriate or necessary for this agreement.\n7. Jurisdiction:\nThe agreements associated with this transaction will all be subject to\nPennsylvania law. Disputes will be resolved through the use of a nationally\nrecognized arbitration group. The location of any arbitration or legal proceeding\nwill be in the Berks County, Pennsylvania.\n8. Transfer:\nThis Agreement shall not be assigned by either party without the prior written\nconsent of the other party.\n9. Indemnity.\nCompany shall indemnify, defend and hold harmless Consultant from and against\nany and all losses incurred by Consultant which arise out of or result from\nmisrepresentation, breach of warranty or breach or non- fulfillment of any\ncovenant contained herein or Schedules annexed hereto or in any other documents\n3\nCompany Initials /S/TCD\nConsultant Initials /S/ACK\nor instruments furnished by Company pursuant hereto or in connection with this\nAgreement.\n10. Modifications:\nA modification or waiver of any of the provisions of this Agreement shall be\neffective only if made in writing and executed with the same formality as this\nAgreement.\n11. Waiver:\nThe failure of either Party to insist on compliance with any of the terms, covenants,\nor conditions of this Agreement by the other Party shall not be deemed a waiver of\nthat term, covenant, or condition, not shall any waiver or relinquishment of any right\nor power at any time be deemed a waiver or relinquishment of that right or power for\nall or any other times.\n12. Partial Invalidity:\nIf any provision in this Agreement is held by a court of competent jurisdiction be\nfound to be invalid, void, or unenforceable, the remaining provisions shall\nnevertheless continue in full force without being impaired or invalidated in any way.\n13. Attorney's Fees:\nIf any legal action is commenced or necessary to enforce or interrupt the terms of this\nAgreement, the prevailing Party shall be entitled to reasonable attorney's fees, costs,\nand necessary disbursements in addition to any other relief to which that party may be\nentitled.\nIntentionally Blank\n4\nCompany Initials /S/TCD\nConsultant Initials /S/ACK\n14. Entire Agreement:\nThis Agreement supersedes any and all other agreements, either oral or in writing,\nbetween the parties hereto with respect to the engagement of Consultant by Company,\nand contains all of the covenants and agreements between Parties with respect to that\nengagement in any manner whatsoever. Each Party acknowledges that no\nrepresentations, inducements, promises, or agreements, orally or otherwise, have been\nmade by any Party, or anyone acting on behalf of any Party, which are not embodied\nherein, and that no agreement, statement, or promise not contained in this Agreement\nshall be valid or binding on either Party, except that any other written agreement\ndated and signed concurrent with or after this Agreement shall be valid as between\nthe signing Parties thereto.\nAND NOW, intending to be legally bound thereby, the parties had set their hands this 21st\nday; of November, 2007.\nSanguine Corp.\n/s/T. C Drees\nTom Drees, President\nConsultant\n/s/Alfonso Knoll\nSignee\n5\nCompany Initials /S/TCD\nConsultant Initials /S/ACK	EX-10 2 kksconsultingagreementclean1.htm CONSULTING AND CONFIDENTIALITY AGREEMENT WITH KKS VENTURE\nMANAGEMENT, INC.\nCONSULTING AND CONFIDENTIALITY AGREEMENT\nTHIS CONSULTING AGREEMENT (hereinafter the “Agreement”), made and entered\ninto this 25th day of October, 2007, by and between KKS Venture Management Inc. and\nAlfonso Knoll (hereinafter “Consultants”), an independent contractor with a business\naddress of 240 Main Street, Denver PA 17517, and Sanguine Corporation a Nevada\ncorporation (hereinafter “the Company”), (hereinafter together referred to as “the\nParties”).\nThis will confirm the agreement between the Company and the Consultants this 25th day\nof October 2007 as follows:\nWhereas, The Company agrees to engage the Consultants and Consultants agree to\nprovide consulting services to the company for a period of one (1) year; and\nNOW, THEREFORE, in consideration of the mutual covenants set forth in this\nagreement, the Parties agree as follows:\n1. Consulting Services:\nFor a period of twelve (12) months from the date first signed above, Consultants\nwill hold themselves available to provide investor relations services to Company\nas may be requested by it, provided Consultants shall determine in their sole\ndiscretion the time and manner of providing such services. Consultant agrees to\nexercise its best efforts to provide the following services to Company:\n· Help Company in gaining market awareness and explore the possibilities of\na European listing; and\n· Help Company by recommending a capitalization restructure to facilitate an\noffering of $(5,000,000); and\n·\nHelp when appropriate, approaching a larger underwriter to structure a\nsecondary offering for the build out of the Company brand and increase\nthe marking budget.\n·\nForemost, provide such managerial help and consultation as to foster the\ngrowth and performance of the Company.\nConsultants will remain available to provide such services during the term of this\nagreement and Company will continue to compensate Consultants hereunder\nwhether or not it is a subsidiary of, or stockholder of, Company under separate\narrangement. The Consultants shall at all times be independent contractors to the\nCompany and shall not represent or be represented as an employee, partner,\nofficer, director or affiliate of the Company. This Agreement shall automatically\nrenew on a yearly basis on the last day of the twelfth month following execution\n1\nCompany Initials /s/TCD\nConsultant Initials /s/ACK\nof this Agreement each year on the same terms until either party gives written\nnotice of its intent not to renew. Said Notice shall be given at least 1 month\nbefore the renewal date.\nSubject to the terms and conditions of this Agreement, the Consultants accept this\nappointment as an independent contractor to the Company. In no event shall the\nConsultant be obligated to participate in and/or purchase Private Equity and/or\nCredit and Debt Facilities for its own account or for the accounts of any other\nentities or individuals.\n2. Compensation:\nIn consideration of the consulting services of this agreement, Company agrees to\npay Consultant the following:\n· Upon signing this agreement Company will pay to Consultant, three million\n(3,000,000) common shares, in Company with “piggy-back” registration\nrights; and\n·\n675,000 free trading SGNC common shares through a grant from the\nCompany’s Stock Option Plan to Alfonso Knoll personally under a\nseparate Letter Agreement of even date; and\n· After successful completion of a minimum of first $500,000 financing has\nbeen realized by the Company, the Company will pay Consultant Twenty\nThousand $20,000 per month so long as the company can afford to pay it.\nConsultants hereby agree that all payments will be made directly to KKS Venture\nManagement Inc.. The recipient here, KKS Venture Management Inc., LLC is an\nentity in which all three of the equity owners are accredited investors, as that\nphrase is defined in the Act.\n3. Termination; Accelerated Payment:\nIn the event of Consultant’s failure to perform or Company’s failure to pay\nConsultant the non-breaching party may terminate this agreement and any\noutstanding claims shall refer to a panel of Arbitrators.\n4. Confidentiality:\nDuring the course of this agreement, it is likely that each party will come into\ncontact with confidential information crucial to the operation of each parties\nbusiness. Such confidential information may include, without limitation: (i)\nbusiness and financial information, (ii) business methods and practices, (iii)\ntechnology and technological strategies, (iv) marketing strategies and (v) other\nsuch information each Party deems as “Confidential Information”. By their\nsignature below, each party agrees to keep in strict confidence all non-public\ninformation so long as it remains non-public, except to the extent disclosure is\nrequired by law,\n2\nCompany Initials /s/TCD\nConsultant Initials /s/ACK\nrequested by any governmental or regulatory agency or body or to the extent that\nConsultants must disclose information to lenders and equity partners to obtain\nfinancing. Both parties agree not to use the confidential information disclosed to\nthem for their own benefit, or for the benefit of any party with which the\nConsultant or the Company is affiliated. If this agreement is terminated, each\nparty upon request will promptly return to the other party all documents,\ncontracts, records, or other information received by it that disclose or embody\nconfidential information of the other party.\n5. Covenant Not To Circumvent:\nIt is understood that the Consultants will be introducing the Company to equity,\ndebt and other financing parties along with potential purchasers of Company’s\nproduct or suite of products. The Company agrees that its employees, officers,\ndirectors or other consultants will not circumvent this agreement in an endeavor to\nemploy, tempt or cause any investment from Consultants contacts. The Company\nunderstands that such action would constitute a breach of this agreement and\nwould be harmful or damaging to the Consultants business; as a\nresult the\nConsultants would be owed treble damages payable forthwith in cash or kind in\nthe amount of ($100,000).\n6. Consents and Approvals\nBy their signature below, each party agrees they have been duly authorized to\nenter into and execute this agreement and have obtained the approval and consent\nof their respective Boards of Directors, and any other parties, which are\nappropriate or necessary for this agreement.\n7. Jurisdiction:\nThe agreements associated with this transaction will all be subject to\nPennsylvania law. Disputes will be resolved through the use of a nationally\nrecognized arbitration group. The location of any arbitration or legal proceeding\nwill be in the Berks County, Pennsylvania.\n8. Transfer:\nThis Agreement shall not be assigned by either party without the prior written\nconsent of the other party.\n9. Indemnity.\nCompany shall indemnify, defend and hold harmless Consultant from and against\nany and all losses incurred by Consultant which arise out of or result from\nmisrepresentation, breach of warranty or breach or non- fulfillment of any\ncovenant contained herein or Schedules annexed hereto or in any other documents\n3\nCompany Initials /s/TCD\nConsultant Initials /s/ACK\nor instruments furnished by Company pursuant hereto or in connection with this\nAgreement.\n10. Modifications:\nA modification or waiver of any of the provisions of this Agreement shall be\neffective only if made in writing and executed with the same formality as this\nAgreement.\n11. Waiver:\nThe failure of either Party to insist on compliance with any of the terms, covenants,\nor conditions of this Agreement by the other Party shall not be deemed a waiver of\nthat term, covenant, or condition, not shall any waiver or relinquishment of any right\nor power at any time be deemed a waiver or relinquishment of that right or power for\nall or any other times.\n12. Partial Invalidity:\nIf any provision in this Agreement is held by a court of competent jurisdiction be\nfound to be invalid, void, or unenforceable, the remaining provisions shall\nnevertheless continue in full force without being impaired or invalidated in any way.\n13. Attorney's Fees:\nIf any legal action is commenced or necessary to enforce or interrupt the terms of this\nAgreement, the prevailing Party shall be entitled to reasonable attorney's fees, costs,\nand necessary disbursements in addition to any other relief to which that party may be\nentitled.\nIntentionally Blank\n4\nCompany Initials /s/TCD\nConsultant Initials /s/ACK\n14. Entire Agreement:\nThis Agreement supersedes any and all other agreements, either oral or in writing,\nbetween the parties hereto with respect to the engagement of Consultant by Company,\nand contains all of the covenants and agreements between Parties with respect to that\nengagement in any manner whatsoever. Each Party acknowledges that no\nrepresentations, inducements, promises, or agreements, orally or otherwise, have been\nmade by any Party, or anyone acting on behalf of any Party, which are not embodied\nherein, and that no agreement, statement, or promise not contained in this Agreement\nshall be valid or binding on either Party, except that any other written agreement\ndated and signed concurrent with or after this Agreement shall be valid as between\nthe signing Parties thereto.\nAND NOW, intending to be legally bound thereby, the parties had set their hands this 21st\nday; of November, 2007.\nSanguine Corp.\n/s/T. C Drees\nTom Drees, President\nConsultant\n/s/Alfonso Knoll\nSignee\n5\nCompany Initials /s/TCD\nConsultant Initials /s/ACK
+38d3865e2a3e2eeaf3fa8bddc17b1687.pdf	effective_date jurisdiction party term	EX-99.(E)(3) 2 dex99e3.htm NONDISCLOSURE AGREEMENT\nExhibit (e)(3)\nLOGO\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated November 2, 2010, by and between Rovi Corporation, a Delaware corporation\n(“Rovi”) and Sonic Solutions, a California corporation (“Sonic”). For purposes hereof, the party disclosing Confidential Information (as defined in\nSection 1) may be referred to as “Discloser” and the party receiving Confidential Information may be referred to as “Recipient.” The term “Person”\nwill be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority, and a party’s\n“Representatives” will be deemed to include each Person that is or becomes an officer, director, employee, partner, attorney, advisor, accountant,\nagent or representative of such party or of any of such party’s subsidiaries or other affiliates. The parties hereby agree as follows:\n1. Confidential Information. “Confidential Information” includes: (a) any information (including, without limitation, any technology, know-how,\nstudies, patent applications, test results, business plans, budgets, forecasts and projections) relating directly or indirectly to the business of Discloser,\nwhether prepared by Discloser or by any other Person and whether or not in written form, that is made available after the date hereof to Recipient or\nany of its Representatives for the purpose of considering a Transaction; (b) any memorandum, analysis, compilation, summary, interpretation, study,\nreport or other document or material that is or has been prepared by or for Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause (a) of this sentence; (c) the existence and terms of this Agreement; and (d) the fact\nthat discussions or negotiations are or may be taking place with respect to a possible Transaction (as defined in Section 2); and (e) the proposed\nterms of any such Transaction. If disclosed in written, recorded, graphical or other tangible form, Confidential Information shall be marked\n“Proprietary”, “Confidential” or similar designation. If disclosed in oral form, Confidential Information shall be identified by the Discloser as\n“Proprietary”, “Confidential” or similar designation at the time of oral disclosure, with subsequent confirmation in writing within thirty (30) days of\nsuch disclosure. Notwithstanding the preceding two sentences, Confidential Information shall include information which should be reasonably\nconstrued by the Recipient to be confidential. Notwithstanding the foregoing “Confidential Information” will not include any information that (i) is\nor becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by Recipient or any\nof its Representatives, (ii) was in Recipient’s possession prior to the time it was first made available to Recipient or any of its Representatives by or\non behalf of Discloser, provided that such information was not acquired improperly by the Recipient in breach of any contractual or other obligation\nof confidentiality to Discloser or any other Person with respect to any of such information, (iii) becomes available to Recipient on a non-confidential\nbasis from a source other than Discloser or any of its Representatives, provided that such information was not acquired improperly by the Recipient\nin breach of any contractual or other obligation of confidentiality to Discloser or any other Person with respect to any of such information, or\n(iv) was independently developed by Recipient.\n2. Limitations. Subject to Section 3, neither Recipient nor any of its Representatives will directly or indirectly: (a) make use of any Confidential\nInformation, except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Sonic and Rovi\n(a “Transaction”); or (b) disclose any Confidential Information to any other Person. Recipient will be liable and responsible for any breach of this\nAgreement by its Representatives and will, at its own expense, take actions necessary to restrain its Representatives from making any unauthorized\nuse or disclosure of any Confidential Information.\n3. Permitted Disclosures. Notwithstanding the limitations set forth in Section 2, Recipient may disclose Confidential Information to its\nRepresentatives, but only to the extent a Representative needs to know such Confidential Information for the purpose of helping Recipient in\nconnection with a possible Transaction, and has agreed to be bound by the provisions hereof. If Discloser notifies Recipient in writing prior to the\ndisclosure of certain Confidential Information that such Confidential Information may be disclosed only to specified Representatives of Recipient,\nthen Recipient shall not disclose such Confidential Information to any of its other Representatives. If Recipient or any of its Representatives is\nrequired by law or governmental regulation or by subpoena or other valid legal process to disclose any Confidential Information to any Person, then\nRecipient will immediately provide Discloser with written notice of the applicable law, regulation or process so that Discloser may seek a protective\norder or other appropriate remedy. Recipient and its Representatives will cooperate fully with Discloser in any attempt by Discloser to obtain any\nsuch protective order or other remedy. If Discloser elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy, then\nRecipient may disclose such Confidential Information to the extent, but only to the extent, legally required; provided that Recipient and its\nRepresentatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is\ndisclosed.\n4. No Representations or Licenses. Neither party nor any of its Representatives will be under any obligation to make any particular Confidential\nInformation available to Recipient or any of Recipient’s Representatives or to supplement or update any Confidential Information previously\nfurnished. Neither party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy\nor completeness of any Confidential Information, and neither party nor any of its Representatives will have any liability to Recipient or to any of\nRecipient’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions\ntherefrom. Only those representations and warranties, if any, that are included in any final definitive written agreement (a “Definitive Agreement”)\nthat provides for the consummation of the Transaction will have legal effect. Unless the parties enter into a Definitive Agreement, no agreement\nproviding for a Transaction will be deemed to exist between the parties, and neither party will be under any obligation to negotiate or enter into any\nsuch Transaction.\nNondisclosure Agreement\n1\nBy making Confidential Information or other information available hereunder, Discloser does not grant any license or other right under or with\nrespect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right.\n5. Term and Termination. This Agreement will continue for a period of one (1) year from the date hereof unless earlier terminated. Either party\nmay terminate this Agreement, with or without cause, upon ten (10) days’ prior written notice to the other. The confidentiality and other obligations\nregarding Confidential Information disclosed prior to such termination will survive for a period of three years after such disclosure. Upon\ntermination or at the request of Discloser at any time, Recipient and its Representatives will promptly deliver to Discloser any Confidential\nInformation obtained or possessed by Recipient or any of its Representatives; provided, however, that, in lieu of delivering to Discloser any written\nmaterials containing Confidential Information, Recipient may destroy such written materials and deliver to Discloser a certificate confirming their\ndestruction. Notwithstanding the delivery to Discloser (or the destruction by Recipient) of Confidential Information pursuant to this Section 5,\nRecipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement.\n6. Remedies. Each party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement, and that the non-\nbreaching party could suffer irreparable harm as a result of such breach. Accordingly, the non-breaching party will also be entitled to equitable relief,\nincluding injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement.\n7. Miscellaneous.\n(a) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, investigation,\narbitration or dispute, it is acknowledged and agreed that Recipient and Discloser have a commonality of interest with respect to such action, suit,\ninvestigation, arbitration or dispute and that it is their mutual intention and understanding that the sharing of such materials and other information is\nnot intended to, and shall not waive or diminish the continued protection of any of such materials or other information under any applicable privilege\nor doctrine. Accordingly, all Confidential Information that is entitled to protection under any applicable privilege or doctrine shall remain entitled to\nprotection thereunder and shall be entitled to protection under the joint defense doctrine, and Recipient agrees to take measures necessary to\npreserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(b) This Agreement and the transactions hereunder shall be governed by and construed and enforced in accordance with the laws of the State\nof California, excluding conflict of law rules and principles. In the event of any litigation between the parties, the prevailing party will be entitled to\nreasonable attorneys’ fees and all costs incurred in enforcing this Agreement.\n(c) This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all\nother oral or written representations and understandings. The failure to enforce any right will not be deemed a waiver of such or any other rights,\nincluding the right to enforce a subsequent breach of the same obligation. If for any reason a court of competent jurisdiction finds any provision of\nthis Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to\neffect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement may be amended or\nmodified only by a writing signed by the parties. This Agreement will be binding upon the successors and assigns of both parties.\n(d) This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but which collectively will\nconstitute one and the same instrument. For purposes hereof, a facsimile or electronic copy of this Agreement, including the signature page hereto,\nwill be deemed to be an original.\n(e) Each party agrees to comply with all export laws and regulations of the United States of America applicable to any information disclosed\nhereunder.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first\nset forth above.\nRovi Corporation\nSonic Solutions\nBy:\n/s/ Pamela Sergeeff\nBy:\n/s/ Paul F. Norris\nName: Pamela Sergeeff\nName: Paul F. Norris\nTitle:\nAuthorized Signatory\nTitle:\nEVP, CFO and General Counsel\nDate:\nNovember 2, 2010\nDate:\nNovember 2, 2010\nNotice Address:\nNotice Address:\nNondisclosure Agreement\n2\nRovi Corporation\nSonic Solutions\nAttn: General Counsel\nAttn: General Counsel\n2830 De La Cruz Boulevard\n7250 Redwood Boulevard, Suite 300\nSanta Clara, CA 95050\nNovato, CA 94945 USA\nFax: 408-567-1807\nFax: 415-893 -7011\nNondisclosure Agreement\n3	EX-99.(E)(3) 2 dex99e3.htm NONDISCLOSURE AGREEMENT\nExhibit (e)(3)\n».LOGO\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated November 2, 2010, by and between Rovi Corporation, a Delaware corporation\n(“Rovi”) and Sonic Solutions, a California corporation (“Sonic”). For purposes hereof, the party disclosing Confidential Information (as defined in\nSection 1) may be referred to as “Discloser” and the party receiving Confidential Information may be referred to as “Recipient.” The term “Person”\nwill be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority, and a party’s\n“Representatives” will be deemed to include each Person that is or becomes an officer, director, employee, partner, attorney, advisor, accountant,\nagent or representative of such party or of any of such party’s subsidiaries or other affiliates. The parties hereby agree as follows:\n1. Confidential Information. “Confidential Information” includes: (a) any information (including, without limitation, any technology, know-how,\nstudies, patent applications, test results, business plans, budgets, forecasts and projections) relating directly or indirectly to the business of Discloser,\nwhether prepared by Discloser or by any other Person and whether or not in written form, that is made available after the date hereof to Recipient or\nany of its Representatives for the purpose of considering a Transaction; (b) any memorandum, analysis, compilation, summary, interpretation, study,\nreport or other document or material that is or has been prepared by or for Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause (a) of this sentence; (c) the existence and terms of this Agreement; and (d) the fact\nthat discussions or negotiations are or may be taking place with respect to a possible Transaction (as defined in Section 2); and (e) the proposed\nterms of any such Transaction. If disclosed in written, recorded, graphical or other tangible form, Confidential Information shall be marked\n“Proprietary”, “Confidential” or similar designation. If disclosed in oral form, Confidential Information shall be identified by the Discloser as\n“Proprietary”, “Confidential” or similar designation at the time of oral disclosure, with subsequent confirmation in writing within thirty (30) days of\nsuch disclosure. Notwithstanding the preceding two sentences, Confidential Information shall include information which should be reasonably\nconstrued by the Recipient to be confidential. Notwithstanding the foregoing “Confidential Information” will not include any information that (i) is\nor becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by Recipient or any\nof its Representatives, (ii) was in Recipient’s possession prior to the time it was first made available to Recipient or any of its Representatives by or\non behalf of Discloser, provided that such information was not acquired improperly by the Recipient in breach of any contractual or other obligation\nof confidentiality to Discloser or any other Person with respect to any of such information, (iii) becomes available to Recipient on a non-confidential\nbasis from a source other than Discloser or any of its Representatives, provided that such information was not acquired improperly by the Recipient\nin breach of any contractual or other obligation of confidentiality to Discloser or any other Person with respect to any of such information, or\n(iv) was independently developed by Recipient.\n2. Limitations. Subject to Section 3, neither Recipient nor any of its Representatives will directly or indirectly: (a) make use of any Confidential\nInformation, except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Sonic and Rovi\n(a “Transaction”); or (b) disclose any Confidential Information to any other Person. Recipient will be liable and responsible for any breach of this\nAgreement by its Representatives and will, at its own expense, take actions necessary to restrain its Representatives from making any unauthorized\nuse or disclosure of any Confidential Information.\n3. Permitted Disclosures. Notwithstanding the limitations set forth in Section 2, Recipient may disclose Confidential Information to its\nRepresentatives, but only to the extent a Representative needs to know such Confidential Information for the purpose of helping Recipient in\nconnection with a possible Transaction, and has agreed to be bound by the provisions hereof. If Discloser notifies Recipient in writing prior to the\ndisclosure of certain Confidential Information that such Confidential Information may be disclosed only to specified Representatives of Recipient,\nthen Recipient shall not disclose such Confidential Information to any of its other Representatives. If Recipient or any of its Representatives is\nrequired by law or governmental regulation or by subpoena or other valid legal process to disclose any Confidential Information to any Person, then\nRecipient will immediately provide Discloser with written notice of the applicable law, regulation or process so that Discloser may seek a protective\norder or other appropriate remedy. Recipient and its Representatives will cooperate fully with Discloser in any attempt by Discloser to obtain any\nsuch protective order or other remedy. If Discloser elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy, then\nRecipient may disclose such Confidential Information to the extent, but only to the extent, legally required; provided that Recipient and its\nRepresentatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is\ndisclosed.\n4. No Representations or Licenses. Neither party nor any of its Representatives will be under any obligation to make any particular Confidential\nInformation available to Recipient or any of Recipient’s Representatives or to supplement or update any Confidential Information previously\nfurnished. Neither party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy\nor completeness of any Confidential Information, and neither party nor any of its Representatives will have any liability to Recipient or to any of\nRecipient’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions\ntherefrom. Only those representations and warranties, if any, that are included in any final definitive written agreement (a “Definitive Agreement”)\nthat provides for the consummation of the Transaction will have legal effect. Unless the parties enter into a Definitive Agreement, no agreement\nproviding for a Transaction will be deemed to exist between the parties, and neither party will be under any obligation to negotiate or enter into any\nsuch Transaction.\nNondisclosure Agreement 1\nBy making Confidential Information or other information available hereunder, Discloser does not grant any license or other right under or with\nrespect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right.\n5. Term and Termination. This Agreement will continue for a period of one (1) year from the date hereof unless earlier terminated. Either party\nmay terminate this Agreement, with or without cause, upon ten (10) days’ prior written notice to the other. The confidentiality and other obligations\nregarding Confidential Information disclosed prior to such termination will survive for a period of three years after such disclosure. Upon\ntermination or at the request of Discloser at any time, Recipient and its Representatives will promptly deliver to Discloser any Confidential\nInformation obtained or possessed by Recipient or any of its Representatives; provided, however, that, in lieu of delivering to Discloser any written\nmaterials containing Confidential Information, Recipient may destroy such written materials and deliver to Discloser a certificate confirming their\ndestruction. Notwithstanding the delivery to Discloser (or the destruction by Recipient) of Confidential Information pursuant to this Section 5,\nRecipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement.\n6. Remedies. Each party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement, and that the non-\nbreaching party could suffer irreparable harm as a result of such breach. Accordingly, the non-breaching party will also be entitled to equitable relief,\nincluding injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement.\n7. Miscellaneous.\n(a) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, investigation,\narbitration or dispute, it is acknowledged and agreed that Recipient and Discloser have a commonality of interest with respect to such action, suit,\ninvestigation, arbitration or dispute and that it is their mutual intention and understanding that the sharing of such materials and other information is\nnot intended to, and shall not waive or diminish the continued protection of any of such materials or other information under any applicable privilege\nor doctrine. Accordingly, all Confidential Information that is entitled to protection under any applicable privilege or doctrine shall remain entitled to\nprotection thereunder and shall be entitled to protection under the joint defense doctrine, and Recipient agrees to take measures necessary to\npreserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(b) This Agreement and the transactions hereunder shall be governed by and construed and enforced in accordance with the laws of the State\nof California, excluding conflict of law rules and principles. In the event of any litigation between the parties, the prevailing party will be entitled to\nreasonable attorneys’ fees and all costs incurred in enforcing this Agreement.\n(c) This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all\nother oral or written representations and understandings. The failure to enforce any right will not be deemed a waiver of such or any other rights,\nincluding the right to enforce a subsequent breach of the same obligation. If for any reason a court of competent jurisdiction finds any provision of\nthis Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to\neffect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement may be amended or\nmodified only by a writing signed by the parties. This Agreement will be binding upon the successors and assigns of both parties.\n(d) This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but which collectively will\nconstitute one and the same instrument. For purposes hereof, a facsimile or electronic copy of this Agreement, including the signature page hereto,\nwill be deemed to be an original.\n(e) Each party agrees to comply with all export laws and regulations of the United States of America applicable to any information disclosed\nhereunder.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first\nset forth above.\nRovi Corporation Sonic Solutions\nBy: /s/ Pamela Sergeeff By: /s/ Paul F. Norris\nName: Pamela Sergeeff Name: Paul F. Norris\nTitle: Authorized Signatory Title: EVP, CFO and General Counsel\nDate: November 2, 2010 Date: November 2, 2010\nNotice Address: Notice Address:\nNondisclosure Agreement 2\nRovi Corporation\nAttn: General Counsel\n2830 De La Cruz Boulevard\nSanta Clara, CA 95050\nFax: 408-567-1807\nNondisclosure Agreement\nSonic Solutions\nAttn: General Counsel\n7250 Redwood Boulevard, Suite 300\nNovato, CA 94945 USA\nFax: 415-893-7011	EX-99.(E)(3) 2 dex99e3.htm NONDISCLOSURE AGREEMENT\nExhibit (e)(3)\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this "Agreement") is dated November 2, 2010, by and between Rovi Corporation, a Delaware corporation\n("Rovi") and Sonic Solutions, a California corporation ("Sonic"). For purposes hereof, the party disclosing Confidential Information (as defined\nin\nSection 1) may be referred to as "Discloser" and the party receiving Confidential Information may be referred to as "Recipient." The term "Person"\nwill be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority, and a party's\n"Representatives" will be deemed to include each Person that is or becomes an officer, director, employee, partner, attorney, advisor, accountant,\nagent or representative of such party or of any of such party's subsidiaries or other affiliates. The parties hereby agree as follows:\n1. Confidential Information. "Confidential Information" includes: (a) any information (including, without limitation, any technology, know-how,\nstudies, patent applications, test results, business plans, budgets, forecasts and projections) relating directly or indirectly to the business of Discloser,\nwhether prepared by Discloser or by any other Person and whether or not in written form, that is made available after the date hereof to Recipient or\nany\nof\nits\nRepresentatives\nfor\nthe\npurpose\nof\nconsidering\na\nTransaction;\n(b)\nany\nmemorandum,\nanalysis,\ncompilation,\nsummary,\ninterpretation,\nstudy,\nreport or other document or material that is or has been prepared by or for Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause (a) of this sentence; (c) the existence and terms of this Agreement; and (d) the fact\nthat discussions or negotiations are or may be taking place with respect to a possible Transaction (as defined in Section 2); and (e) the proposed\nterms of any such Transaction. If disclosed in written, recorded, graphical or other tangible form, Confidential Information shall be marked\n"Proprietary", "Confidential" or similar designation. If disclosed in oral form, Confidential Information shall be identified by the Discloser\nas\n"Proprietary", "Confidential" or similar designation at the time of oral disclosure, with subsequent confirmation in writing within thirty (30) days of\nsuch disclosure. Notwithstanding the preceding two sentences, Confidential Information shall include information which should be reasonably\nconstrued by the Recipient to be confidential. Notwithstanding the foregoing "Confidential Information" will not include any information that (i)\nis\nor\nbecomes\ngenerally\navailable\nto\nthe\npublic\nother\nthan\nas\na\ndirect\nor\nindirect\nresult\nof\nthe\ndisclosure\nof\nany\nof\nsuch\ninformation\nby\nRecipient\nor\nany\nof its Representatives, (ii) was in Recipient's possession prior to the time it was first made available to Recipient or any of its Representatives by or\non behalf of Discloser, provided that such information was not acquired improperly by the Recipient in breach of any contractual or other obligation\nof confidentiality to Discloser or any other Person with respect to any of such information, (iii) becomes available to Recipient on a non-confidential\nbasis from a source other than Discloser or any of its Representatives, provided that such information was not acquired improperly by the Recipient\nin breach of any contractual or other obligation of confidentiality to Discloser or any other Person with respect to any of such information, or\n(iv) was independently developed by Recipient.\n2. Limitations. Subject to Section 3, neither Recipient nor any of its Representatives will directly or indirectly (a) make use of any Confidential\nInformation, except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Sonic and Rovi\n(a "Transaction"); or (b) disclose any Confidential Information to any other Person. Recipient will be liable and responsible for any breach of this\nAgreement by its Representatives and will, at its own expense, take actions necessary to restrain its Representatives from making any unauthorized\nuse or disclosure of any Confidential Information.\n3. Permitted Disclosures. Notwithstanding the limitations set forth in Section 2, Recipient may disclose Confidential Information to its\nRepresentatives, but only to the extent a Representative needs to know such Confidential Information for the purpose of helping Recipient in\nconnection with a possible Transaction, and has agreed to be bound by the provisions hereof. If Discloser notifies Recipient in writing prior to the\ndisclosure of certain Confidential Information that such Confidential Information may be disclosed only to specified Representatives of Recipient,\nthen Recipient shall not disclose such Confidential Information to any of its other Representatives. If Recipient or any of its Representatives is\nrequired by law or governmental regulation or by subpoena or other valid legal process to disclose any Confidential Information to any Person, then\nRecipient will immediately provide Discloser with written notice of the applicable law, regulation or process so that Discloser may seek a protective\norder or other appropriate remedy. Recipient and its Representatives will cooperate fully with Discloser in any attempt by Discloser to obtain any\nsuch protective order or other remedy. If Discloser elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy, then\nRecipient may disclose such Confidential Information to the extent, but only to the extent, legally required; provided that Recipient and its\nRepresentatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is\ndisclosed.\n4. No Representations or Licenses. Neither party nor any of its Representatives will be under any obligation to make any particular Confidential\nInformation available to Recipient or any of Recipient's Representatives or to supplement or update any Confidential Information previously\nfurnished. Neither party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy\nor completeness of any Confidential Information, and neither party nor any of its Representatives will have any liability to Recipient or to any of\nRecipient's Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions\ntherefrom. Only those representations and warranties, if any, that are included in any final definitive written agreement (a "Definitive Agreement")\nthat provides for the consummation of the Transaction will have legal effect. Unless the parties enter into a Definitive Agreement, no agreement\nproviding for a Transaction will be deemed to exist between the parties, and neither party will be under any obligation to negotiate or enter into any\nsuch Transaction.\nNondisclosure Agreement\n1\nBy making Confidential Information or other information available hereunder, Discloser does not grant any license or other right under or with\nrespect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right.\n5. Term and Termination. This Agreement will continue for a period of one (1) year from the date hereof unless earlier terminated. Either party\nmay terminate this Agreement, with or without cause, upon ten (10) days' prior written notice to the other. The confidentiality and other obligations\nregarding Confidential Information disclosed prior to such termination will survive for a period of three years after such disclosure. Upon\ntermination or at the request of Discloser at any time, Recipient and its Representatives will promptly deliver to Discloser any Confidential\nInformation obtained or possessed by Recipient or any of its Representatives; provided, however, that, in lieu of delivering to Discloser any written\nmaterials containing Confidential Information, Recipient may destroy such written materials and deliver to Discloser a certificate confirming their\ndestruction.\nNotwithstanding the delivery to Discloser (or the destruction by Recipient) of Confidential Information pursuant to this Section\n5,\nRecipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement.\n6. Remedies. Each party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement, and that the non-\nbreaching party could suffer irreparable harm as a result of such breach. Accordingly, the non-breaching party will also be entitled to equitable relief,\nincluding injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement.\n7. Miscellaneous.\n(a) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, investigation,\narbitration or dispute, it is acknowledged and agreed that Recipient and Discloser have a commonality of interest with respect to such action, suit,\ninvestigation, arbitration or dispute and that it is their mutual intention and understanding that the sharing of such materials and other information is\nnot intended to, and shall not waive or diminish the continued protection of any of such materials or other information under any applicable privilege\nor doctrine. Accordingly, all Confidential Information that is entitled to protection under any applicable privilege or doctrine shall remain entitled\nto\nprotection thereunder and shall be entitled to protection under the joint defense doctrine, and Recipient agrees to take measures necessary to\npreserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(b) This Agreement and the transactions hereunder shall be governed by and construed and enforced in accordance with the laws of the State\nof California, excluding conflict of law rules and principles. In the event of any litigation between the parties, the prevailing party will be entitled to\nreasonable attorneys' fees and all costs incurred in enforcing this Agreement.\n(c) This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all\nother oral or written representations and understandings. The failure to enforce any right will not be deemed a waiver of such or any other rights,\nincluding the right to enforce a subsequent breach of the same obligation. If for any reason a court of competent jurisdiction finds any provision of\nthis Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to\neffect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement may be amended or\nmodified only by a writing signed by the parties. This Agreement will be binding upon the successors and assigns of both parties.\n(d) This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but which collectively will\nconstitute one and the same instrument. For purposes hereof, a facsimile or electronic copy of this Agreement, including the signature page hereto,\nwill be deemed to be an original.\n(e) Each party agrees to comply with all export laws and regulations of the United States of America applicable to any information disclosed\nhereunder.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first\nset forth above.\nRovi Corporation\nSonic Solutions\nBy:\n/s/ Pamela Sergeeff\nBy:\n/s/ Paul F. Norris\nName: Pamela Sergeeff\nName:\nPaul F. Norris\nTitle:\nAuthorized Signatory\nTitle:\nEVP, CFO and General Counsel\nDate:\nNovember 2, 2010\nDate:\nNovember 2, 2010\nNotice Address:\nNotice Address:\nNondisclosure Agreement\n2\nRovi Corporation\nSonic Solutions\nAttn: General Counsel\nAttn: General Counsel\n2830 De La Cruz Boulevard\n7250 Redwood Boulevard, Suite 300\nSanta Clara, CA 95050\nNovato, CA 94945 USA\nFax: 408-567-1807\nFax: 415-893-7011\nNondisclosure Agreement\n3	EX-99.(E)(3) 2 dex99e3.htm NONDISCLOSURE AGREEMENT\nExhibit (e)(3)\nLOGO\nNONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated November 2, 2010, by and between Rovi Corporation, a Delaware corporation\n(“Rovi”) and Sonic Solutions, a California corporation (“Sonic”). For purposes hereof, the party disclosing Confidential Information (as defined in\nSection 1) may be referred to as “Discloser” and the party receiving Confidential Information may be referred to as “Recipient.” The term “Person”\nwill be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority, and a party’s\n“Representatives” will be deemed to include each Person that is or becomes an officer, director, employee, partner, attorney, advisor, accountant,\nagent or representative of such party or of any of such party’s subsidiaries or other affiliates. The parties hereby agree as follows:\n1. Confidential Information. “Confidential Information” includes: (a) any information (including, without limitation, any technology, know-how,\nstudies, patent applications, test results, business plans, budgets, forecasts and projections) relating directly or indirectly to the business of Discloser,\nwhether prepared by Discloser or by any other Person and whether or not in written form, that is made available after the date hereof to Recipient or\nany of its Representatives for the purpose of considering a Transaction; (b) any memorandum, analysis, compilation, summary, interpretation, study,\nreport or other document or material that is or has been prepared by or for Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause (a) of this sentence; (c) the existence and terms of this Agreement; and (d) the fact\nthat discussions or negotiations are or may be taking place with respect to a possible Transaction (as defined in Section 2); and (e) the proposed\nterms of any such Transaction. If disclosed in written, recorded, graphical or other tangible form, Confidential Information shall be marked\n“Proprietary”, “Confidential” or similar designation. If disclosed in oral form, Confidential Information shall be identified by the Discloser as\n“Proprietary”, “Confidential” or similar designation at the time of oral disclosure, with subsequent confirmation in writing within thirty (30) days of\nsuch disclosure. Notwithstanding the preceding two sentences, Confidential Information shall include information which should be reasonably\nconstrued by the Recipient to be confidential. Notwithstanding the foregoing “Confidential Information” will not include any information that (i) is\nor becomes generally available to the public other than as a direct or indirect result of the disclosure of any of such information by Recipient or any\nof its Representatives, (ii) was in Recipient’s possession prior to the time it was first made available to Recipient or any of its Representatives by or\non behalf of Discloser, provided that such information was not acquired improperly by the Recipient in breach of any contractual or other obligation\nof confidentiality to Discloser or any other Person with respect to any of such information, (iii) becomes available to Recipient on a non-confidential\nbasis from a source other than Discloser or any of its Representatives, provided that such information was not acquired improperly by the Recipient\nin breach of any contractual or other obligation of confidentiality to Discloser or any other Person with respect to any of such information, or\n(iv) was independently developed by Recipient.\n2. Limitations. Subject to Section 3, neither Recipient nor any of its Representatives will directly or indirectly: (a) make use of any Confidential\nInformation, except for the specific purpose of considering, evaluating and negotiating a possible negotiated transaction between the Sonic and Rovi\n(a “Transaction”); or (b) disclose any Confidential Information to any other Person. Recipient will be liable and responsible for any breach of this\nAgreement by its Representatives and will, at its own expense, take actions necessary to restrain its Representatives from making any unauthorized\nuse or disclosure of any Confidential Information.\n3. Permitted Disclosures. Notwithstanding the limitations set forth in Section 2, Recipient may disclose Confidential Information to its\nRepresentatives, but only to the extent a Representative needs to know such Confidential Information for the purpose of helping Recipient in\nconnection with a possible Transaction, and has agreed to be bound by the provisions hereof. If Discloser notifies Recipient in writing prior to the\ndisclosure of certain Confidential Information that such Confidential Information may be disclosed only to specified Representatives of Recipient,\nthen Recipient shall not disclose such Confidential Information to any of its other Representatives. If Recipient or any of its Representatives is\nrequired by law or governmental regulation or by subpoena or other valid legal process to disclose any Confidential Information to any Person, then\nRecipient will immediately provide Discloser with written notice of the applicable law, regulation or process so that Discloser may seek a protective\norder or other appropriate remedy. Recipient and its Representatives will cooperate fully with Discloser in any attempt by Discloser to obtain any\nsuch protective order or other remedy. If Discloser elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy, then\nRecipient may disclose such Confidential Information to the extent, but only to the extent, legally required; provided that Recipient and its\nRepresentatives will use their reasonable efforts to ensure that such Confidential Information is treated confidentially by each Person to whom it is\ndisclosed.\n4. No Representations or Licenses. Neither party nor any of its Representatives will be under any obligation to make any particular Confidential\nInformation available to Recipient or any of Recipient’s Representatives or to supplement or update any Confidential Information previously\nfurnished. Neither party nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy\nor completeness of any Confidential Information, and neither party nor any of its Representatives will have any liability to Recipient or to any of\nRecipient’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions\ntherefrom. Only those representations and warranties, if any, that are included in any final definitive written agreement (a “Definitive Agreement”)\nthat provides for the consummation of the Transaction will have legal effect. Unless the parties enter into a Definitive Agreement, no agreement\nproviding for a Transaction will be deemed to exist between the parties, and neither party will be under any obligation to negotiate or enter into any\nsuch Transaction.\nNondisclosure Agreement\n1\nBy making Confidential Information or other information available hereunder, Discloser does not grant any license or other right under or with\nrespect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right.\n5. Term and Termination. This Agreement will continue for a period of one (1) year from the date hereof unless earlier terminated. Either party\nmay terminate this Agreement, with or without cause, upon ten (10) days’ prior written notice to the other. The confidentiality and other obligations\nregarding Confidential Information disclosed prior to such termination will survive for a period of three years after such disclosure. Upon\ntermination or at the request of Discloser at any time, Recipient and its Representatives will promptly deliver to Discloser any Confidential\nInformation obtained or possessed by Recipient or any of its Representatives; provided, however, that, in lieu of delivering to Discloser any written\nmaterials containing Confidential Information, Recipient may destroy such written materials and deliver to Discloser a certificate confirming their\ndestruction. Notwithstanding the delivery to Discloser (or the destruction by Recipient) of Confidential Information pursuant to this Section 5,\nRecipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement.\n6. Remedies. Each party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement, and that the non-\nbreaching party could suffer irreparable harm as a result of such breach. Accordingly, the non-breaching party will also be entitled to equitable relief,\nincluding injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement.\n7. Miscellaneous.\n(a) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, investigation,\narbitration or dispute, it is acknowledged and agreed that Recipient and Discloser have a commonality of interest with respect to such action, suit,\ninvestigation, arbitration or dispute and that it is their mutual intention and understanding that the sharing of such materials and other information is\nnot intended to, and shall not waive or diminish the continued protection of any of such materials or other information under any applicable privilege\nor doctrine. Accordingly, all Confidential Information that is entitled to protection under any applicable privilege or doctrine shall remain entitled to\nprotection thereunder and shall be entitled to protection under the joint defense doctrine, and Recipient agrees to take measures necessary to\npreserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(b) This Agreement and the transactions hereunder shall be governed by and construed and enforced in accordance with the laws of the State\nof California, excluding conflict of law rules and principles. In the event of any litigation between the parties, the prevailing party will be entitled to\nreasonable attorneys’ fees and all costs incurred in enforcing this Agreement.\n(c) This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all\nother oral or written representations and understandings. The failure to enforce any right will not be deemed a waiver of such or any other rights,\nincluding the right to enforce a subsequent breach of the same obligation. If for any reason a court of competent jurisdiction finds any provision of\nthis Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to\neffect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement may be amended or\nmodified only by a writing signed by the parties. This Agreement will be binding upon the successors and assigns of both parties.\n(d) This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but which collectively will\nconstitute one and the same instrument. For purposes hereof, a facsimile or electronic copy of this Agreement, including the signature page hereto,\nwill be deemed to be an original.\n(e) Each party agrees to comply with all export laws and regulations of the United States of America applicable to any information disclosed\nhereunder.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first\nset forth above.\nRovi Corporation\nSonic Solutions\nBy:\n/s/ Pamela Sergeeff\nBy:\n/s/ Paul F. Norris\nName: Pamela Sergeeff\nName: Paul F. Norris\nTitle:\nAuthorized Signatory\nTitle:\nEVP, CFO and General Counsel\nDate:\nNovember 2, 2010\nDate:\nNovember 2, 2010\nNotice Address:\nNotice Address:\nNondisclosure Agreement\n2\nRovi Corporation\nSonic Solutions\nAttn: General Counsel\nAttn: General Counsel\n2830 De La Cruz Boulevard\n7250 Redwood Boulevard, Suite 300\nSanta Clara, CA 95050\nNovato, CA 94945 USA\nFax: 408-567-1807\nFax: 415-893 -7011\nNondisclosure Agreement\n3
+391495c97ad748997f9edf3e218541fb.pdf	effective_date jurisdiction party term	NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (“Agreement”) is made as of the later of the dates signed below (“Effective Date”) by and between\nMollyguard Corporation, a California corporation having a place of business at 208 Utah Street, San Francisco, Ca 94103 (“Discloser”), and\nJulia Steen (the “Recipient”).\nWHEREAS, this Agreement relates to disclosure of certain confidential and proprietary information by Discloser to Recipient for the\npurpose of furthering a potential relationship between the two parties; and whereas, both parties understand that Confidential Information\nreceived by Recipient is regarded by Discloser as valuable and shall only be used as set forth herein. NOW THEREFORE, the parties agree as\nfollows:\n1. Definition of Confidential Information. The term “Confidential Information” shall mean any and all information which is disclosed by\nDiscloser to Recipient, whether verbally, electronically, visually, or in a written or other tangible form that is not generally disclosed to the public\nby Discloser, including but not limited to, trade secrets, computer programs, software, software manuals and documentation, technology,\nsystems, source code, databases, applications, engine protocols, routines, models, displays and manuals, including, without limitation, the\nselection, coordination and arrangement of the contents thereof, formulas, data, inventions, methodologies, algorithms, techniques, processes,\nresearch activities and plans, marketing and sale plans, strategic plans, forecasts, training materials, pricing and pricing strategies, methods of\noperation, internal controls, security procedures, third party confidential information, customer lists and financial information.\n2. Duties Regarding Non-Disclosure. Recipient warrants and agrees to keep Confidential Information in strict confidence and shall not\ndisclose it to any third party. Recipient shall use Confidential Information in a legal and proper manner consistent with the terms of this\nAgreement and only in furtherance of the relationship between the parties. Recipient’s internal disclosure of Confidential Information shall be\nonly to those employees, contractors or agents having a need to know such information in connection with this Agreement and only insofar as\nsuch persons are bound by a nondisclosure agreement consistent with this Agreement. Recipient shall promptly notify Discloser of any\nunauthorized disclosure of use of Confidential Information by any person and/or entity.\n3. Limitations on Duties of Non-Disclosure. This Agreement imposes no obligation upon Recipient with respect to Confidential\nInformation which Recipient can establish by legally sufficient evidence that such information: (a) was, prior to receipt from Discloser, in the\npossession of, or was rightfully known by Recipient, without an obligation to maintain its confidentiality; (b) is or becomes generally known to\nthe public without violation of this Agreement or without a violation of an obligation of confidentiality owed to Discloser or a third party; (c) is\nobtained by Recipient in good faith from a third party having the right to disclose it without the use of or reference to Discloser’s Confidential\nInformation. Recipient may disclose Confidential Information in accordance with valid judicial or other governmental order, provided that\nRecipient shall have given Discloser reasonable notice and opportunity to object prior to such disclosure. Recipient will seek confidential\ntreatment of such information disclosed, and shall comply with any applicable protective order or equivalent.\n4. Ownership Interest in Confidential Information. Confidential Information is provided “as-is” and Discloser makes no representation or\nwarranty of any kind express or implied, with respect to the suitability, accuracy or non-infringement of third party rights. Discloser shall at all\ntimes retain sole and exclusive title to, ownership of, all right in and control over the use of all its Confidential Information. Both parties agree\nthat nothing in this Agreement is intended to grant any rights or license under any intellectual property rights of Discloser, nor shall this\nAgreement grant Recipient any rights in or to Discloser ’s Confidential Information, except the limited right to use such information in\naccordance with this Agreement.\n5. Miscellaneous. This agreement is the entire agreement between the parties and supersedes all prior understandings and agreements\nconcerning this subject matter. All additions or modifications to this Agreement must be in writing and signed by the authorized representatives\nof both parties. This Agreement shall be governed by the laws of the State of California, excluding choice of law principles. The Recipient will\ncomply strictly with all applicable law and regulations applicable to Discloser’s Confidential Information. Recipient acknowledges that monetary\ndamages may not be sufficient remedy for unauthorized use or disclosure of Confidential Information, or for breach of this Agreement, and\nDiscloser shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a\ncourt of competent jurisdiction.\nIN WITNESS WHEREOF, and intending to be legally bound hereby, and further intending to bind its employees, contractors and agents, the\nparties have executed this Agreement as of the Effective Date.\nACCEPTED BY:\nMOLLYGUARD CORPORATION\n30 Nov 2005\nDate\n/s/ Kevin Hartz\nSignature\nKevin Hartz, CEO\nPrinted Name and Title\nAddress:\n208 Utah Street\nSuite 404\nSan Francisco, CA 94103\nACCEPTED BY:\nJULIA STEEN\n30 Nov 2005\nDate\n/s/ Julia Steen\nSignature\nJulia Steen\nPrinted Name	NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (“Agreement”) is made as of the later of the dates signed below (“Effective Date”) by and between\nMollyguard Corporation, a California corporation having a place of business at 208 Utah Street, San Francisco, Ca 94103 (“Discloser”), and\nJulia Steen (the “Recipient”).\nWHEREAS, this Agreement relates to disclosure of certain confidential and proprietary information by Discloser to Recipient for the\npurpose of furthering a potential relationship between the two parties; and whereas, both parties understand that Confidential Information\nreceived by Recipient is regarded by Discloser as valuable and shall only be used as set forth herein. NOW THEREFORE, the parties agree as\nfollows:\n1. Definition of Confidential Information. The term “Confidential Information” shall mean any and all information which is disclosed by\nDiscloser to Recipient, whether verbally, electronically, visually, or in a written or other tangible form that is not generally disclosed to the public\nby Discloser, including but not limited to, trade secrets, computer programs, software, software manuals and documentation, technology,\nsystems, source code, databases, applications, engine protocols, routines, models, displays and manuals, including, without limitation, the\nselection, coordination and arrangement of the contents thereof, formulas, data, inventions, methodologies, algorithms, techniques, processes,\nresearch activities and plans, marketing and sale plans, strategic plans, forecasts, training materials, pricing and pricing strategies, methods of\noperation, internal controls, security procedures, third party confidential information, customer lists and financial information.\n2. Duties Regarding Non-Disclosure. Recipient warrants and agrees to keep Confidential Information in strict confidence and shall not\ndisclose it to any third party. Recipient shall use Confidential Information in a legal and proper manner consistent with the terms of this\nAgreement and only in furtherance of the relationship between the parties. Recipient’s internal disclosure of Confidential Information shall be\nonly to those employees, contractors or agents having a need to know such information in connection with this Agreement and only insofar as\nsuch persons are bound by a nondisclosure agreement consistent with this Agreement. Recipient shall promptly notify Discloser of any\nunauthorized disclosure of use of Confidential Information by any person and/or entity.\n3. Limitations on Duties of Non-Disclosure. This Agreement imposes no obligation upon Recipient with respect to Confidential\nInformation which Recipient can establish by legally sufficient evidence that such information: (a) was, prior to receipt from Discloser, in the\npossession of, or was rightfully known by Recipient, without an obligation to maintain its confidentiality; (b) is or becomes generally known to\nthe public without violation of this Agreement or without a violation of an obligation of confidentiality owed to Discloser or a third party; (c) is\nobtained by Recipient in good faith from a third party having the right to disclose it without the use of or reference to Discloser’s Confidential\nInformation. Recipient may disclose Confidential Information in accordance with valid judicial or other governmental order, provided that\nRecipient shall have given Discloser reasonable notice and opportunity to object prior to such disclosure. Recipient will seek confidential\ntreatment of such information disclosed, and shall comply with any applicable protective order or equivalent.\n4. Ownership Interest in Confidential Information. Confidential Information is provided “as-is” and Discloser makes no representation or\nwarranty of any kind express or implied, with respect to the suitability, accuracy or non-infringement of third party rights. Discloser shall at all\ntimes retain sole and exclusive title to, ownership of, all right in and control over the use of all its Confidential Information. Both parties agree\nthat nothing in this Agreement is intended to grant any rights or license under any intellectual property rights of Discloser, nor shall this\nAgreement grant Recipient any rights in or to Discloser’s Confidential Information, except the limited right to use such information in\naccordance with this Agreement.\n5. Miscellaneous. This agreement is the entire agreement between the parties and supersedes all prior understandings and agreements\nconcerning this subject matter. All additions or modifications to this Agreement must be in writing and signed by the authorized representatives\nof both parties. This Agreement shall be governed by the laws of the State of California, excluding choice of law principles. The Recipient will\ncomply strictly with all applicable law and regulations applicable to Discloser’s Confidential Information. Recipient acknowledges that monetary\ndamages may not be sufficient remedy for unauthorized use or disclosure of Confidential Information, or for breach of this Agreement, and\nDiscloser shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a\ncourt of competent jurisdiction.\nIN WITNESS WHEREQOF, and intending to be legally bound hereby, and further intending to bind its employees, contractors and agents, the\nparties have executed this Agreement as of the Effective Date.\nACCEPTED BY: ACCEPTED BY:\nMOLLYGUARD CORPORATION JULIA STEEN\n30 Nov 2005 30 Nov 2005\nDate Date\n/s/ Kevin Hartz /s/ Julia Steen\nSignature Signature\nKevin Hartz, CEO Julia Steen\nPrinted Name and Title Printed Name\nAddress:\n208 Utah Street\nSuite 404\nSan Francisco, CA 94103	NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement ("Agreement") is made as of the later of the dates signed below ("Effective Date") by and between\nMollyguard Corporation, a California corporation having a place of business at 208 Utah Street, San Francisco, Ca 94103 ("Discloser"), and\nJulia Steen (the "Recipient").\nWHEREAS, this Agreement relates to disclosure of certain confidential and proprietary information by Discloser to Recipient for the\npurpose of furthering a potential relationship between the two parties; and whereas, both parties understand that Confidential Information\nreceived by Recipient is regarded by Discloser as valuable and shall only be used as set forth herein. NOW THEREFORE, the parties agree as\nfollows:\n1. Definition of Confidential Information. The term "Confidential Information" shall mean any and all information which is disclosed by\nDiscloser to Recipient, whether verbally, electronically, visually, or in a written or other tangible form that is not generally disclosed to the public\nby Discloser, including but not limited to, trade secrets, computer programs, software, software manuals and documentation, technology,\nsystems, source code, databases, applications, engine protocols, routines, models, displays and manuals, including, without limitation,\nthe\nselection, coordination and arrangement of the contents thereof, formulas, data, inventions, methodologies, algorithms, techniques, processes,\nresearch activities and plans, marketing and sale plans, strategic plans, forecasts, training materials, pricing and pricing strategies, methods of\noperation, internal controls, security procedures, third party confidential information, customer lists and financial information.\n2. Duties Regarding Non-Disclosure. Recipient warrants and agrees to keep Confidential Information in strict confidence and shall not\ndisclose it to any third party. Recipient shall use Confidential Information in a legal and proper manner consistent with the terms of this\nAgreement and only in furtherance of the relationship between the parties. Recipient's internal disclosure of Confidential Information shall\nbe\nonly\nto those employees, contractors or agents having a need to know such information in connection with this Agreement and only insofar as\nsuch persons are bound by a nondisclosure agreement consistent with this Agreement. Recipient shall promptly notify Discloser of any\nunauthorized disclosure of use of Confidential Information by any person and/or entity.\n3. Limitations on Duties of Non-Disclosure. This Agreement imposes no obligation upon Recipient with respect to Confidential\nInformation which Recipient can establish by legally sufficient evidence that such information: (a) was, prior to receipt from Discloser, in the\npossession of, or was rightfully known by Recipient, without an obligation to maintain its confidentiality; (b) is or becomes generally known to\nthe public without violation of this Agreement or without a violation of an obligation of confidentiality owed to Discloser or a third party; (c) is\nobtained by Recipient in good faith from a third party having the right to disclose it without the use of or reference to Discloser's Confidential\nInformation. Recipient may disclose Confidential Information in accordance with valid judicial or other governmental order, provided that\nRecipient shall have given Discloser reasonable notice and opportunity to object prior to such disclosure. Recipient will seek confidential\ntreatment of such information disclosed, and shall comply with any applicable protective order or equivalent.\n4. Ownership Interest in Confidential Information Confidential Information is provided "as-is" and Discloser makes no representation or\nwarranty of any kind express or implied, with respect to the suitability, accuracy or non-infringement of third party rights. Discloser shall at all\ntimes retain sole and exclusive title to, ownership of, all right in and control over the use of all its Confidential Information. Both parties agree\nthat nothing in this Agreement is intended to grant any rights or license under any intellectual property rights of Discloser, nor shall this\nAgreement grant Recipient any rights in or to Discloser's Confidential Information, except the limited right to use such information in\naccordance with this Agreement.\n5. Miscellaneous. This agreement is the entire agreement between the parties and supersedes all prior understandings and agreements\nconcerning this subject matter. All additions or modifications to this Agreement must be in writing and signed by the authorized representatives\nof both parties. This Agreement shall be governed by the laws of the State of California, excluding choice of law principles. The Recipient will\ncomply strictly with all applicable law and regulations applicable to Discloser's Confidential Information. Recipient acknowledges that monetary\ndamages may not be sufficient remedy for unauthorized use or disclosure of Confidential Information, or for breach of this Agreement, and\nDiscloser shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a\ncourt of competent jurisdiction.\nIN WITNESS WHEREOF, and intending to be legally bound hereby, and further intending to bind its employees, contractors and agents, the\nparties have executed this Agreement as of the Effective Date.\nACCEPTED BY:\nACCEPTED BY:\nMOLLYGUARD CORPORATION\nJULIA STEEN\n30 Nov 2005\n30 Nov 2005\nDate\nDate\n/s/ Kevin Hartz\n/s/ Julia Steen\nSignature\nSignature\nKevin Hartz, CEO\nJulia Steen\nPrinted Name and Title\nPrinted Name\nAddress:\n208 Utah Street\nSuite 404\nSan Francisco, CA 94103	NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (“Agreement”) is made as of the later of the dates signed below (“Effective Date”) by and between\nMollyguard Corporation, a California corporation having a place of business at 208 Utah Street, San Francisco, Ca 94103 (“Discloser”), and\nJulia Steen (the “Recipient”).\nWHEREAS, this Agreement relates to disclosure of certain confidential and proprietary information by Discloser to Recipient for the\npurpose of furthering a potential relationship between the two parties; and whereas, both parties understand that Confidential Information\nreceived by Recipient is regarded by Discloser as valuable and shall only be used as set forth herein. NOW THEREFORE, the parties agree as\nfollows:\n1. Definition of Confidential Information. The term “Confidential Information” shall mean any and all information which is disclosed by\nDiscloser to Recipient, whether verbally, electronically, visually, or in a written or other tangible form that is not generally disclosed to the public\nby Discloser, including but not limited to, trade secrets, computer programs, software, software manuals and documentation, technology,\nsystems, source code, databases, applications, engine protocols, routines, models, displays and manuals, including, without limitation, the\nselection, coordination and arrangement of the contents thereof, formulas, data, inventions, methodologies, algorithms, techniques, processes,\nresearch activities and plans, marketing and sale plans, strategic plans, forecasts, training materials, pricing and pricing strategies, methods of\noperation, internal controls, security procedures, third party confidential information, customer lists and financial information.\n2. Duties Regarding Non-Disclosure. Recipient warrants and agrees to keep Confidential Information in strict confidence and shall not\ndisclose it to any third party. Recipient shall use Confidential Information in a legal and proper manner consistent with the terms of this\nAgreement and only in furtherance of the relationship between the parties. Recipient’s internal disclosure of Confidential Information shall be\nonly to those employees, contractors or agents having a need to know such information in connection with this Agreement and only insofar as\nsuch persons are bound by a nondisclosure agreement consistent with this Agreement. Recipient shall promptly notify Discloser of any\nunauthorized disclosure of use of Confidential Information by any person and/or entity.\n3. Limitations on Duties of Non-Disclosure. This Agreement imposes no obligation upon Recipient with respect to Confidential\nInformation which Recipient can establish by legally sufficient evidence that such information: (a) was, prior to receipt from Discloser, in the\npossession of, or was rightfully known by Recipient, without an obligation to maintain its confidentiality; (b) is or becomes generally known to\nthe public without violation of this Agreement or without a violation of an obligation of confidentiality owed to Discloser or a third party; (c) is\nobtained by Recipient in good faith from a third party having the right to disclose it without the use of or reference to Discloser’s Confidential\nInformation. Recipient may disclose Confidential Information in accordance with valid judicial or other governmental order, provided that\nRecipient shall have given Discloser reasonable notice and opportunity to object prior to such disclosure. Recipient will seek confidential\ntreatment of such information disclosed, and shall comply with any applicable protective order or equivalent.\n4. Ownership Interest in Confidential Information. Confidential Information is provided “as-is” and Discloser makes no representation or\nwarranty of any kind express or implied, with respect to the suitability, accuracy or non-infringement of third party rights. Discloser shall at all\ntimes retain sole and exclusive title to, ownership of, all right in and control over the use of all its Confidential Information. Both parties agree\nthat nothing in this Agreement is intended to grant any rights or license under any intellectual property rights of Discloser, nor shall this\nAgreement grant Recipient any rights in or to Discloser ’s Confidential Information, except the limited right to use such information in\naccordance with this Agreement.\n5. Miscellaneous. This agreement is the entire agreement between the parties and supersedes all prior understandings and agreements\nconcerning this subject matter. All additions or modifications to this Agreement must be in writing and signed by the authorized representatives\nof both parties. This Agreement shall be governed by the laws of the State of California, excluding choice of law principles. The Recipient will\ncomply strictly with all applicable law and regulations applicable to Discloser’s Confidential Information. Recipient acknowledges that monetary\ndamages may not be sufficient remedy for unauthorized use or disclosure of Confidential Information, or for breach of this Agreement, and\nDiscloser shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a\ncourt of competent jurisdiction.\nIN WITNESS WHEREOF, and intending to be legally bound hereby, and further intending to bind its employees, contractors and agents, the\nparties have executed this Agreement as of the Effective Date.\nACCEPTED BY:\nMOLLYGUARD CORPORATION\n30 Nov 2005\nDate\n/s/ Kevin Hartz\nSignature\nKevin Hartz, CEO\nPrinted Name and Title\nAddress:\n208 Utah Street\nSuite 404\nSan Francisco, CA 94103\nACCEPTED BY:\nJULIA STEEN\n30 Nov 2005\nDate\n/s/ Julia Steen\nSignature\nJulia Steen\nPrinted Name
+394582f193249a17114927a2831c303c.pdf	effective_date jurisdiction party term	Mutual Non Disclosure Agreement\nThis Mutual Non Disclosure Agreement (this “Agreement”) is entered by and between Oramed Pharmaceuticals Inc., a Delaware Company,\nwith an office at 142 W. 57th St., New York, NY, USA, and its Israeli subsidiary, Oramed Ltd (together - the “Company”) and Joshua Hexter,\nan individual residing at 7550 Amherst Avenue, University City, MO, 63130 (the “Recipient”). The parties wish to discuss a possible business\nrelationship with each other, and in connection with the same each of the parties has been, and/or will be, provided with, and/or has access to\ncertain confidential information of the other party. With respect to any and all information disclosed by either party (“Disclosing Party”) to the\nother party (“Receiving Party”), the parties wish to ensure due protection of such information.\nTherefore, the parties hereby agree as follows:\n1. Receiving Party acknowledges that it may receive information regarding the activities and business of Disclosing Party, its parent companies,\nsubsidiaries and/or affiliates, all whether in oral, written, graphic, or machine-readable form, or in any other form, including, without limitation,\nconcepts, techniques, processes, methods, systems, designs, drawings, photographs, models, prototypes, computer programs, research materials,\nformulas, development or experimental work, work in progress, mask work, inventions, cost data, marketing plans, product plans, business\nstrategies, financial information, forecasts, personnel information and customer or supplier lists (collectively, “Confidential Information”). For\nthe avoidance of doubt, nothing herein shall be deemed to impose on Disclosing Party any duty or obligation to disclose any such information to\nReceiving Party, and such disclosure shall be at all times at Disclosing Party’s sole and absolute discretion. Furthermore, nothing herein shall be\ndeemed to create any representation that the Confidential Information, or any part of it, is whole, accurate or correct.\n2. Notwithstanding the aforesaid, information shall not be deemed as Confidential Information, for purposes of this Agreement, if Receiving\nParty can show documentary evidence that: (a) such information is in the public domain at the time of disclosure, or subsequently becomes part\nof the public domain, through no breach of Receiving Party of its obligations hereunder; or (b) such information is received by Receiving Party\nfrom a third party exempt from confidentiality undertakings; or (c) such information was in its possession at the time of disclosure, and\nReceiving Party so advised Disclosing Party in writing immediately upon disclosure; or (d) Receiving Party is compelled by court or government\naction pursuant to applicable law to disclose such information, provided, however, that Receiving Party gives Disclosing Party prompt notice\nthereof so that Disclosing Party may seek a protective order or other appropriate remedy, and further provided that in the event that such\nprotective order or other remedy is not obtained, Receiving Party shall furnish only that portion of the Confidential Information which is legally\nrequired, and shall exercise all efforts required to obtain confidential treatment for such information.\n3. The Confidential Information shall be used by Receiving Party for the sole purpose of evaluating its interest in future cooperation with\nDisclosing Party as set forth hereinabove, and, if the parties shall engage in any relationship - solely for the limited purposes of such engagement.\n6\n4. Receiving Party hereby acknowledges that the Confidential Information is highly confidential, and undertakes that, at all times, it: (i) shall\ntreat and maintain the Confidential Information as confidential, and hold all such Confidential Information in trust and in strict confidence,\nutilizing the same degree of care it uses to protect its own confidential information, but in no event less than a reasonable degree of care; (ii) shall\nnot disclose the Confidential Information to any third party, whether or not for consideration; (iii) shall not use the Confidential Information for\nany purpose other than the limited purpose mentioned in Section 3 above, or exploit the Confidential Information for its own benefit or for the\nbenefit of anyone else, without the prior written consent of Disclosing Party; and (iv) shall not make any copies of the Confidential Information\nwithout the prior written consent of Disclosing Party.\n5. Receiving Party undertakes to hold all Confidential Information locked and to disclose the Confidential Information only to those of its\nemployees and consultants (provided, with respect to such consultants, that disclosure to any consultant shall be made only after receipt of\nwritten consent of the Disclosing Party) who have to be so informed in order to ensure its proper evaluation (each, a “Representative”), and\nprovided that such Representatives are bound by written confidentiality and non-use undertakings towards Receiving Party which also apply to\nthe Confidential Information disclosed to Receiving Party under this Agreement. Receiving Party will be responsible for ensuring that the\nobligations of confidentiality and non-use contained herein are observed by all Representatives, and it represents that it has instituted policies and\nprocedures which provide such adequate protection for the Confidential Information. Without derogating from the aforesaid, Receiving Party\nshall bear full responsibility for any harm caused to Disclosing Party by disclosure to Representatives.\n6. To the extent that any portion of the Confidential Information contains proprietary and confidential notices or legends, Receiving Party shall\nnot remove such notices or legends, and shall produce the same on each and every copy of the Confidential Information produced by it.\n7. Upon Disclosing Party’s first demand, Receiving Party shall return to Disclosing Party all Confidential Information, including all records,\nproducts and samples received, and any copies thereof, as well as any notes, memoranda or other writings or documentation which contain or\npertain to the Confidential Information or any portion thereof, whether in its possession or under its control, and shall erase all electronic records\nthereof, and shall so confirm to Disclosing Party in writing.\n8. The Confidential Information and all right, title and interest therein will remain at all times the exclusive property of Disclosing Party its\nparent companies, subsidiaries and/or affiliates. Nothing hereunder may be construed as granting to Receiving Party any right, warranty or\nlicense by implication or otherwise under any patent, copyright, know-how or design rights, or other form of protection of industrial or\nintellectual property, or as creating any obligation on the part of Disclosing Party to enter into any business relationship whatsoever or to offer for\nsale any service or product.\n7\n9. Receiving Party recognizes, acknowledges and agrees that Disclosing Party may be irreparably harmed if Receiving Party’s obligations and\nundertakings herein are not specifically enforced, and that Disclosing Party would not have an adequate remedy at law in the event of actual or\nthreatened violation by Receiving Party of such obligations and undertakings. Therefore, Receiving Party agrees that Disclosing Party shall be\nentitled to seek and obtain an injunction, without bond, or to an appropriate decree of specific performance or any other appropriate equitable\nrelief.\n10. All of Disclosing Party’s rights hereunder and all of Receiving Party’s obligations and undertakings hereunder shall be in full effect for the\nentire term of this Agreement, and for an unlimited period of time after its termination, cancellation or expiration for any reason whatsoever, so\nlong as any information disclosed by Disclosing Party to Receiving Party under this Agreement remains Confidential Information of Disclosing\nParty. Without derogating from the aforesaid, should the parties engage in any relationship, all of Disclosing Party’s rights hereunder and all of\nReceiving Party’s obligations and undertakings hereunder shall be in full effect for as long as the parties shall engage in such relationship.\n11. The Recipient acknowledges that the Company is a publicly traded company. As such, the Recipient agrees not to use any Confidential\nInformation or any other non-public information in connection with the purchase or sale of the securities of the Company in violation of United\nStates securities laws.\n12. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, and\nsupersedes all prior written or oral agreements with respect thereto. This Agreement may not be modified except by written instrument signed by\na duly authorized representative of each party hereto. No failure, delay of forbearance of either party in exercising any power or right hereunder\nshall in any way restrict or diminish such party’s rights and powers under this Agreement, or operate as a waiver of any breach or\nnonperformance by either party of any terms of conditions hereof. In the event that it shall be determined under any applicable law that a certain\nprovision set forth in this Agreement is invalid or unenforceable, such determination shall not affect the remaining provisions of this Agreement\nunless the purpose of this Agreement is substantially frustrated thereby. This Agreement shall be governed by the laws of the State of New York\nand any dispute arising out of or in connection with this Agreement is hereby submitted to the sole and exclusive jurisdiction of the competent\ncourts in New York.\n/s/ Nadav Kidron\n/s/ Joshua Hexter\nOramed Pharmaceuticals Inc.\nJoshua Hexter\nDate: November 8, 2018\nBy:\nTitle:\nDate:\n8	Mutual Non Disclosure Agreement\nThis Mutual Non Disclosure Agreement (this “Agreement”) is entered by and between Oramed Pharmaceuticals Inc., a Delaware Company,\nwith an office at 142 W. 57th St., New York, NY, USA, and its Israeli subsidiary, Oramed Ltd (together - the “Company”) and Joshua Hexter,\nan individual residing at 7550 Amherst Avenue, University City, MO, 63130 (the “Recipient”). The parties wish to discuss a possible business\nrelationship with each other, and in connection with the same each of the parties has been, and/or will be, provided with, and/or has access to\ncertain confidential information of the other party. With respect to any and all information disclosed by either party (“Disclosing Party”) to the\nother party (“Receiving Party”), the parties wish to ensure due protection of such information.\nTherefore, the parties hereby agree as follows:\n1. Receiving Party acknowledges that it may receive information regarding the activities and business of Disclosing Party, its parent companies,\nsubsidiaries and/or affiliates, all whether in oral, written, graphic, or machine-readable form, or in any other form, including, without limitation,\nconcepts, techniques, processes, methods, systems, designs, drawings, photographs, models, prototypes, computer programs, research materials,\nformulas, development or experimental work, work in progress, mask work, inventions, cost data, marketing plans, product plans, business\nstrategies, financial information, forecasts, personnel information and customer or supplier lists (collectively, “Confidential Information”). For\nthe avoidance of doubt, nothing herein shall be deemed to impose on Disclosing Party any duty or obligation to disclose any such information to\nReceiving Party, and such disclosure shall be at all times at Disclosing Party’s sole and absolute discretion. Furthermore, nothing herein shall be\ndeemed to create any representation that the Confidential Information, or any part of it, is whole, accurate or correct.\n2. Notwithstanding the aforesaid, information shall not be deemed as Confidential Information, for purposes of this Agreement, if Receiving\nParty can show documentary evidence that: (a) such information is in the public domain at the time of disclosure, or subsequently becomes part\nof the public domain, through no breach of Receiving Party of its obligations hereunder; or (b) such information is received by Receiving Party\nfrom a third party exempt from confidentiality undertakings; or (c) such information was in its possession at the time of disclosure, and\nReceiving Party so advised Disclosing Party in writing immediately upon disclosure; or (d) Receiving Party is compelled by court or government\naction pursuant to applicable law to disclose such information, provided, however, that Receiving Party gives Disclosing Party prompt notice\nthereof so that Disclosing Party may seek a protective order or other appropriate remedy, and further provided that in the event that such\nprotective order or other remedy is not obtained, Receiving Party shall furnish only that portion of the Confidential Information which is legally\nrequired, and shall exercise all efforts required to obtain confidential treatment for such information.\n3. The Confidential Information shall be used by Receiving Party for the sole purpose of evaluating its interest in future cooperation with\nDisclosing Party as set forth hereinabove, and, if the parties shall engage in any relationship - solely for the limited purposes of such engagement.\n4. Receiving Party hereby acknowledges that the Confidential Information is highly confidential, and undertakes that, at all times, it: (i) shall\ntreat and maintain the Confidential Information as confidential, and hold all such Confidential Information in trust and in strict confidence,\nutilizing the same degree of care it uses to protect its own confidential information, but in no event less than a reasonable degree of care; (ii) shall\nnot disclose the Confidential Information to any third party, whether or not for consideration; (iii) shall not use the Confidential Information for\nany purpose other than the limited purpose mentioned in Section 3 above, or exploit the Confidential Information for its own benefit or for the\nbenefit of anyone else, without the prior written consent of Disclosing Party; and (iv) shall not make any copies of the Confidential Information\nwithout the prior written consent of Disclosing Party.\n5. Receiving Party undertakes to hold all Confidential Information locked and to disclose the Confidential Information only to those of its\nemployees and consultants (provided, with respect to such consultants, that disclosure to any consultant shall be made only after receipt of\nwritten consent of the Disclosing Party) who have to be so informed in order to ensure its proper evaluation (each, a “Representative”), and\nprovided that such Representatives are bound by written confidentiality and non-use undertakings towards Receiving Party which also apply to\nthe Confidential Information disclosed to Receiving Party under this Agreement. Receiving Party will be responsible for ensuring that the\nobligations of confidentiality and non-use contained herein are observed by all Representatives, and it represents that it has instituted policies and\nprocedures which provide such adequate protection for the Confidential Information. Without derogating from the aforesaid, Receiving Party\nshall bear full responsibility for any harm caused to Disclosing Party by disclosure to Representatives.\n6. To the extent that any portion of the Confidential Information contains proprietary and confidential notices or legends, Receiving Party shall\nnot remove such notices or legends, and shall produce the same on each and every copy of the Confidential Information produced by it.\n7. Upon Disclosing Party’s first demand, Receiving Party shall return to Disclosing Party all Confidential Information, including all records,\nproducts and samples received, and any copies thereof, as well as any notes, memoranda or other writings or documentation which contain or\npertain to the Confidential Information or any portion thereof, whether in its possession or under its control, and shall erase all electronic records\nthereof, and shall so confirm to Disclosing Party in writing.\n8. The Confidential Information and all right, title and interest therein will remain at all times the exclusive property of Disclosing Party its\nparent companies, subsidiaries and/or affiliates. Nothing hereunder may be construed as granting to Receiving Party any right, warranty or\nlicense by implication or otherwise under any patent, copyright, know-how or design rights, or other form of protection of industrial or\nintellectual property, or as creating any obligation on the part of Disclosing Party to enter into any business relationship whatsoever or to offer for\nsale any service or product.\n9. Receiving Party recognizes, acknowledges and agrees that Disclosing Party may be irreparably harmed if Receiving Party’s obligations and\nundertakings herein are not specifically enforced, and that Disclosing Party would not have an adequate remedy at law in the event of actual or\nthreatened violation by Receiving Party of such obligations and undertakings. Therefore, Receiving Party agrees that Disclosing Party shall be\nentitled to seek and obtain an injunction, without bond, or to an appropriate decree of specific performance or any other appropriate equitable\nrelief.\n10. All of Disclosing Party’s rights hereunder and all of Receiving Party’s obligations and undertakings hereunder shall be in full effect for the\nentire term of this Agreement, and for an unlimited period of time after its termination, cancellation or expiration for any reason whatsoever, so\nlong as any information disclosed by Disclosing Party to Receiving Party under this Agreement remains Confidential Information of Disclosing\nParty. Without derogating from the aforesaid, should the parties engage in any relationship, all of Disclosing Party’s rights hereunder and all of\nReceiving Party’s obligations and undertakings hereunder shall be in full effect for as long as the parties shall engage in such relationship.\n11. The Recipient acknowledges that the Company is a publicly traded company. As such, the Recipient agrees not to use any Confidential\nInformation or any other non-public information in connection with the purchase or sale of the securities of the Company in violation of United\nStates securities laws.\n12. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, and\nsupersedes all prior written or oral agreements with respect thereto. This Agreement may not be modified except by written instrument signed by\na duly authorized representative of each party hereto. No failure, delay of forbearance of either party in exercising any power or right hereunder\nshall in any way restrict or diminish such party’s rights and powers under this Agreement, or operate as a waiver of any breach or\nnonperformance by either party of any terms of conditions hereof. In the event that it shall be determined under any applicable law that a certain\nprovision set forth in this Agreement is invalid or unenforceable, such determination shall not affect the remaining provisions of this Agreement\nunless the purpose of this Agreement is substantially frustrated thereby. This Agreement shall be governed by the laws of the State of New York\nand any dispute arising out of or in connection with this Agreement is hereby submitted to the sole and exclusive jurisdiction of the competent\ncourts in New York.\n/s/ Nadav Kidron /s/ Joshua Hexter\nOramed Pharmaceuticals Inc. Joshua Hexter\nDate: November 8, 2018\nBy:\nTitle:\nDate:	Mutual Non Disclosure Agreement\nThis Mutual Non Disclosure Agreement (this "Agreement") is entered by and between Oramed Pharmaceuticals Inc., a Delaware Company,\nwith an office at 142 W. 57th St., New York, NY, USA, and its Israeli subsidiary, Oramed Ltd (together the "Company") and Joshua Hexter,\nan individual residing at 7550 Amherst Avenue, University City, MO, 63130 (the "Recipient"). The parties wish to discuss a possible business\nrelationship with each other, and in connection with the same each of the parties has been, and/or will be, provided with, and/or has access to\ncertain confidential information of the other party. With respect to any and all information disclosed by either party ("Disclosing Party") to the\nother party ("Receiving Party"), the parties wish to ensure due protection of such information.\nTherefore, the parties hereby agree as follows:\n1. Receiving Party acknowledges that it may receive information regarding the activities and business of Disclosing Party, its parent companies,\nsubsidiaries and/or affiliates, all whether in oral, written, graphic, or machine-readable form, or in any other form, including, without limitation,\nconcepts, techniques, processes, methods, systems, designs, drawings, photographs, models, prototypes, computer programs, research materials,\nformulas, development or experimental work, work in progress, mask work, inventions, cost data, marketing plans, product plans, business\nstrategies, financial information, forecasts, personnel information and customer or supplier lists (collectively, "Confidential Information"). For\nthe avoidance of doubt, nothing herein shall be deemed to impose on Disclosing Party any duty or obligation to disclose any such information\nto\nReceiving Party, and such disclosure shall be at all times at Disclosing Party's sole and absolute discretion. Furthermore, nothing herein shall be\ndeemed to create any representation that the Confidential Information, or any part of it, is whole, accurate or correct.\n2. Notwithstanding the aforesaid, information shall not be deemed as Confidential Information, for purposes of this Agreement, if Receiving\nParty can show documentary evidence that: (a) such information is in the public domain at the time of disclosure, or subsequently becomes part\nof the public domain, through no breach of Receiving Party of its obligations hereunder; or (b) such information is received by Receiving Party\nfrom a third party exempt from confidentiality undertakings; or (c) such information was in its possession at the time of disclosure, and\nReceiving Party so advised Disclosing Party in writing immediately upon disclosure; or (d) Receiving Party is compelled by court or government\naction pursuant to applicable law to disclose such information, provided, however, that Receiving Party gives Disclosing Party prompt notice\nthereof so that Disclosing Party may seek a protective order or other appropriate remedy, and further provided that in the event that such\nprotective order or other remedy is not obtained, Receiving Party shall furnish only that portion of the Confidential Information which is legally\nrequired, and shall exercise all efforts required to obtain confidential treatment for such information.\n3. The Confidential Information shall be used by Receiving Party for the sole purpose of evaluating its interest in future cooperation with\nDisclosing Party as set forth hereinabove, and, if the parties shall engage in any relationship solely for the limited purposes of such engagement.\n6\n4. Receiving Party hereby acknowledges that the Confidentia Information is highly confidential, and undertakes that, at all times, it: (i) shall\ntreat and maintain the Confidential Information as confidential, and hold all such Confidential Information in trust and in strict confidence,\nutilizing the same degree of care it uses to protect its own confidential information, but in no event less than a reasonable degree of care; (ii) shall\nnot disclose the Confidential Information to any third party, whether or not for consideration; (iii) shall not use the Confidential Information for\nany purpose other than the limited purpose mentioned in Section 3 above, or exploit the Confidential Information for its own benefit or for the\nbenefit of anyone else, without the prior written consent of Disclosing Party; and (iv) shall not make any copies of the Confidential Information\nwithout the prior written consent of Disclosing Party.\n5. Receiving Party undertakes to hold all Confidentia Information locked and to disclose the Confidentia Information only to those of its\nemployees and consultants (provided, with respect to such consultants, that disclosure to any consultant shall be made only after receipt of\nwritten consent of the Disclosing Party) who have to be so informed in order to ensure its proper evaluation (each, a "Representative"), and\nprovided that such Representatives are bound by written confidentiality and non-use undertakings towards Receiving Party which also apply\nto\nthe Confidential Information disclosed to Receiving Party under this Agreement. Receiving Party will be responsible for ensuring that the\nobligations of confidentiality and non-use contained herein are observed by all Representatives, and it represents that it has instituted policies and\nprocedures which provide such adequate protection for the Confidential Information. Without derogating from the aforesaid, Receiving Party\nshall bear full responsibility for any harm caused to Disclosing Party by disclosure to Representatives.\n6. To the extent that any portion of the Confidential Information contains proprietary and confidential notices or legends, Receiving Party shall\nnot remove such notices or legends, and shall produce the same on each and every copy of the Confidential Information produced by it.\n7. Upon Disclosing Party's first demand, Receiving Party shall return to Disclosing Party all Confidential Information, including all records,\nproducts and samples received, and any copies thereof, as well as any notes, memoranda or other writings or documentation which contain or\npertain to the Confidential Information or any portion thereof, whether in its possession or under its control, and shall erase all electronic records\nthereof, and shall so confirm to Disclosing Party in writing.\n8. The Confidential Information and all right, title and interest therein will remain at all times the exclusive property of Disclosing Party its\nparent companies, subsidiaries and/or affiliates. Nothing hereunder may be construed as granting to Receiving Party any right, warranty\nor\nlicense by implication or otherwise under any patent, copyright, know-how or design rights, or other form of protection of industrial or\nintellectual property, or as creating any obligation on the part of Disclosing Party to enter into any business relationship whatsoever or to offer\nfor\nsale any service or product.\n7\n9. Receiving Party recognizes, acknowledges and agrees that Disclosing Party may be irreparably harmed if Receiving Party's obligations and\nundertakings herein are not specifically enforced, and that Disclosing Party would not have an adequate remedy at law in the event of actual\nor\nthreatened violation by Receiving Party of such obligations and undertakings. Therefore, Receiving Party agrees that Disclosing Party shall\nbe\nentitled to seek and obtain an injunction, without bond, or to an appropriate decree of specific performance or any other appropriate equitable\nrelief.\n10. All of Disclosing Party's rights hereunder and all of Receiving Party's obligations and undertakings hereunder shall be in full effect for the\nentire term of this Agreement, and for an unlimited period of time after its termination, cancellation or expiration for any reason whatsoever, so\nlong as any information disclosed by Disclosing Party to Receiving Party under this Agreement remains Confidential Information of Disclosing\nParty. Without derogating from the aforesaid, should the parties engage in any relationship, all of Disclosing Party's rights hereunder and all of\nReceiving Party's obligations and undertakings hereunder shall be in full effect for as long as the parties shall engage in such relationship.\n11. The Recipient acknowledges that the Company is a publicly traded company. As such, the Recipient agrees not to use any Confidential\nInformation or any other non-public information in connection with the purchase or sale of the securities of the Company in violation of United\nStates securities laws.\n12. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, and\nsupersedes all prior written or oral agreements with respect thereto. This Agreement may not be modified except by written instrument signed by\na duly authorized representative of each party hereto. No failure, delay of forbearance of either party in exercising any power or right hereunder\nshall in any way restrict or diminish such party's rights and powers under this Agreement, or operate as a waiver of any breach or\nnonperformance by either party of any terms of conditions hereof. In the event that it shall be determined under any applicable law that a certain\nprovision set forth in this Agreement is invalid or unenforceable, such determination shall not affect the remaining provisions of this Agreement\nunless the purpose of this Agreement is substantially frustrated thereby. This Agreement shall be governed by the laws of the State of New York\nand any dispute arising out of or in connection with this Agreement is hereby submitted to the sole and exclusive jurisdiction of the competent\ncourts in New York.\n/s/ Nadav Kidron\n/s/ Joshua Hexter\nOramed Pharmaceuticals Inc.\nJoshua Hexter\nDate: November 8, 2018\nBy:\nTitle:\nDate:\n8	Mutual Non Disclosure Agreement\nThis Mutual Non Disclosure Agreement (this “Agreement”) is entered by and between Oramed Pharmaceuticals Inc., a Delaware Company,\nwith an office at 142 W. 57th St., New York, NY, USA, and its Israeli subsidiary, Oramed Ltd (together - the “Company”) and Joshua Hexter,\nan individual residing at 7550 Amherst Avenue, University City, MO, 63130 (the “Recipient”). The parties wish to discuss a possible business\nrelationship with each other, and in connection with the same each of the parties has been, and/or will be, provided with, and/or has access to\ncertain confidential information of the other party. With respect to any and all information disclosed by either party (“Disclosing Party”) to the\nother party (“Receiving Party”), the parties wish to ensure due protection of such information.\nTherefore, the parties hereby agree as follows:\n1. Receiving Party acknowledges that it may receive information regarding the activities and business of Disclosing Party, its parent companies,\nsubsidiaries and/or affiliates, all whether in oral, written, graphic, or machine-readable form, or in any other form, including, without limitation,\nconcepts, techniques, processes, methods, systems, designs, drawings, photographs, models, prototypes, computer programs, research materials,\nformulas, development or experimental work, work in progress, mask work, inventions, cost data, marketing plans, product plans, business\nstrategies, financial information, forecasts, personnel information and customer or supplier lists (collectively, “Confidential Information”). For\nthe avoidance of doubt, nothing herein shall be deemed to impose on Disclosing Party any duty or obligation to disclose any such information to\nReceiving Party, and such disclosure shall be at all times at Disclosing Party’s sole and absolute discretion. Furthermore, nothing herein shall be\ndeemed to create any representation that the Confidential Information, or any part of it, is whole, accurate or correct.\n2. Notwithstanding the aforesaid, information shall not be deemed as Confidential Information, for purposes of this Agreement, if Receiving\nParty can show documentary evidence that: (a) such information is in the public domain at the time of disclosure, or subsequently becomes part\nof the public domain, through no breach of Receiving Party of its obligations hereunder; or (b) such information is received by Receiving Party\nfrom a third party exempt from confidentiality undertakings; or (c) such information was in its possession at the time of disclosure, and\nReceiving Party so advised Disclosing Party in writing immediately upon disclosure; or (d) Receiving Party is compelled by court or government\naction pursuant to applicable law to disclose such information, provided, however, that Receiving Party gives Disclosing Party prompt notice\nthereof so that Disclosing Party may seek a protective order or other appropriate remedy, and further provided that in the event that such\nprotective order or other remedy is not obtained, Receiving Party shall furnish only that portion of the Confidential Information which is legally\nrequired, and shall exercise all efforts required to obtain confidential treatment for such information.\n3. The Confidential Information shall be used by Receiving Party for the sole purpose of evaluating its interest in future cooperation with\nDisclosing Party as set forth hereinabove, and, if the parties shall engage in any relationship - solely for the limited purposes of such engagement.\n6\n4. Receiving Party hereby acknowledges that the Confidential Information is highly confidential, and undertakes that, at all times, it: (i) shall\ntreat and maintain the Confidential Information as confidential, and hold all such Confidential Information in trust and in strict confidence,\nutilizing the same degree of care it uses to protect its own confidential information, but in no event less than a reasonable degree of care; (ii) shall\nnot disclose the Confidential Information to any third party, whether or not for consideration; (iii) shall not use the Confidential Information for\nany purpose other than the limited purpose mentioned in Section 3 above, or exploit the Confidential Information for its own benefit or for the\nbenefit of anyone else, without the prior written consent of Disclosing Party; and (iv) shall not make any copies of the Confidential Information\nwithout the prior written consent of Disclosing Party.\n5. Receiving Party undertakes to hold all Confidential Information locked and to disclose the Confidential Information only to those of its\nemployees and consultants (provided, with respect to such consultants, that disclosure to any consultant shall be made only after receipt of\nwritten consent of the Disclosing Party) who have to be so informed in order to ensure its proper evaluation (each, a “Representative”), and\nprovided that such Representatives are bound by written confidentiality and non-use undertakings towards Receiving Party which also apply to\nthe Confidential Information disclosed to Receiving Party under this Agreement. Receiving Party will be responsible for ensuring that the\nobligations of confidentiality and non-use contained herein are observed by all Representatives, and it represents that it has instituted policies and\nprocedures which provide such adequate protection for the Confidential Information. Without derogating from the aforesaid, Receiving Party\nshall bear full responsibility for any harm caused to Disclosing Party by disclosure to Representatives.\n6. To the extent that any portion of the Confidential Information contains proprietary and confidential notices or legends, Receiving Party shall\nnot remove such notices or legends, and shall produce the same on each and every copy of the Confidential Information produced by it.\n7. Upon Disclosing Party’s first demand, Receiving Party shall return to Disclosing Party all Confidential Information, including all records,\nproducts and samples received, and any copies thereof, as well as any notes, memoranda or other writings or documentation which contain or\npertain to the Confidential Information or any portion thereof, whether in its possession or under its control, and shall erase all electronic records\nthereof, and shall so confirm to Disclosing Party in writing.\n8. The Confidential Information and all right, title and interest therein will remain at all times the exclusive property of Disclosing Party its\nparent companies, subsidiaries and/or affiliates. Nothing hereunder may be construed as granting to Receiving Party any right, warranty or\nlicense by implication or otherwise under any patent, copyright, know-how or design rights, or other form of protection of industrial or\nintellectual property, or as creating any obligation on the part of Disclosing Party to enter into any business relationship whatsoever or to offer for\nsale any service or product.\n7\n9. Receiving Party recognizes, acknowledges and agrees that Disclosing Party may be irreparably harmed if Receiving Party’s obligations and\nundertakings herein are not specifically enforced, and that Disclosing Party would not have an adequate remedy at law in the event of actual or\nthreatened violation by Receiving Party of such obligations and undertakings. Therefore, Receiving Party agrees that Disclosing Party shall be\nentitled to seek and obtain an injunction, without bond, or to an appropriate decree of specific performance or any other appropriate equitable\nrelief.\n10. All of Disclosing Party’s rights hereunder and all of Receiving Party’s obligations and undertakings hereunder shall be in full effect for the\nentire term of this Agreement, and for an unlimited period of time after its termination, cancellation or expiration for any reason whatsoever, so\nlong as any information disclosed by Disclosing Party to Receiving Party under this Agreement remains Confidential Information of Disclosing\nParty. Without derogating from the aforesaid, should the parties engage in any relationship, all of Disclosing Party’s rights hereunder and all of\nReceiving Party’s obligations and undertakings hereunder shall be in full effect for as long as the parties shall engage in such relationship.\n11. The Recipient acknowledges that the Company is a publicly traded company. As such, the Recipient agrees not to use any Confidential\nInformation or any other non-public information in connection with the purchase or sale of the securities of the Company in violation of United\nStates securities laws.\n12. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, and\nsupersedes all prior written or oral agreements with respect thereto. This Agreement may not be modified except by written instrument signed by\na duly authorized representative of each party hereto. No failure, delay of forbearance of either party in exercising any power or right hereunder\nshall in any way restrict or diminish such party’s rights and powers under this Agreement, or operate as a waiver of any breach or\nnonperformance by either party of any terms of conditions hereof. In the event that it shall be determined under any applicable law that a certain\nprovision set forth in this Agreement is invalid or unenforceable, such determination shall not affect the remaining provisions of this Agreement\nunless the purpose of this Agreement is substantially frustrated thereby. This Agreement shall be governed by the laws of the State of New York\nand any dispute arising out of or in connection with this Agreement is hereby submitted to the sole and exclusive jurisdiction of the competent\ncourts in New York.\n/s/ Nadav Kidron\n/s/ Joshua Hexter\nOramed Pharmaceuticals Inc.\nJoshua Hexter\nDate: November 8, 2018\nBy:\nTitle:\nDate:\n8
+3b0882c838d53a60484626c17837bc66.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 11 dex99d2.htm NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nCVS Caremark Corporation\nJuly 8, 2008\nLongs Drug Stores Corporation\n141 North Civic Drive\nWalnut Creek, California 94596\nAttention: William F. Rainey, Esq.\nLadies and Gentlemen:\nIn connection with our mutual consideration of a possible transaction (the “Transaction”) between CVS Caremark Corporation (“we”, “us” or\n“CVS”) and Longs Drug Stores Corporation (the “Company”), it is expected that the Company or its Representatives (as defined below) will furnish\nCVS and its Representatives with certain information about the business, operations and affairs of the Company and its subsidiaries. Such\ninformation (whether oral, written, electronic or otherwise), regardless of the form in which it is provided, together with any notes, analyses,\ncompilations, studies, interpretations or other documents prepared by CVS or its Representatives which contain or otherwise reflect such\ninformation, is hereinafter referred to as “Confidential Information,” except that “Confidential Information” does not include any information that\n(i) was publicly available prior to the date of this agreement or hereafter becomes publicly available without any violation of this agreement on the\npart of CVS or any of its Representatives (ii) was available to CVS or its Representatives on a non-confidential basis prior to its disclosure to CVS or\nits Representatives by the Company or its Representatives or (iii) becomes available to CVS and its Representatives from a person other than the\nCompany and its Representatives who is not, to the best of our knowledge, subject to any legally binding obligation to keep such information\nconfidential. As used in this agreement, “person” means an individual or entity and the “Representatives” of any person means the affiliates,\nofficers, directors, employees, attorneys, accountants, financial advisors and other agents or representatives of such person.\nWe agree that all Confidential Information will be kept confidential and will not be disclosed, in whole or in part, by CVS or any of its\nRepresentatives to any person other than those of our Representatives who need to know such Confidential Information for the purpose of evaluating\na possible Transaction. CVS will be responsible for any breach of this agreement by us or any of your Representatives.\nWithout the prior written consent of the other party, each party agrees that neither such party nor any of its Representatives will disclose to any\nperson (other than to its Representatives that have a need to know such information) the fact that any Confidential Information has been made\navailable hereunder, that discussions or negotiations are taking place concerning a possible Transaction, or any of the terms, conditions or other facts\nwith respect to any possible Transaction or other transaction with the Company, including the status thereof, except as otherwise required by law or\nthe applicable rules of any national securities exchange.\nCVS agrees that it will not use or allow the use of any Confidential Information for any purpose except to evaluate the possible Transaction.\nCVS will inform the Company promptly of any determination by CVS not to proceed with its consideration of the possible Transaction. If\nCVS determines not to proceed with consideration of the possible Transaction, or promptly following CVS’ receipt of a request from the Company,\nCVS shall elect either to destroy or to return to the Company all Confidential Information provided to CVS or its Representatives, except for that\nportion of the Confidential Information that consists of analyses, compilations, studies or other documents prepared by CVS or its Representatives.\nThat portion of the Confidential Information that consists of analyses, compilations, studies or other documents prepared by CVS or its\nRepresentatives will, to the extent legally permitted, be destroyed immediately upon the Company’s request. Upon the request of the Company, CVS\nwill provide the Company with prompt written confirmation of CVS’ compliance with the first two sentences of this paragraph. Notwithstanding the\nforegoing, CVS’ legal department may maintain a copy of the Confidential Information in its restricted access files for actual or anticipated\nlitigation, regulatory compliance or corporate record keeping purposes.\nIf CVS or anyone to whom CVS transmits Confidential Information is requested or required (by oral questions, interrogatories, requests for\ninformation or documents, subpoenas, civil investigative demand or similar process) to disclose any of the Confidential Information, CVS will\nprovide the Company with prompt notice so that the Company may seek a protective order or other appropriate remedy and/or waive CVS’\ncompliance with the provisions of this agreement. If such protective order or other remedy is not obtained, or the Company waives CVS’ compliance\nwith the provisions of this agreement, CVS will furnish only that portion of the Confidential Information that is legally required to be furnished, in\nthe opinion of its counsel, and will exercise its commercially reasonable efforts to obtain a protective order or other reliable assurance that\nconfidential treatment will be accorded the Confidential Information.\nEach party agrees that for a period beginning on the date of this agreement and ending eighteen months after the date hereof, neither such party\nnor any of its affiliates (nor any person acting on behalf of or in concert with such party or any of its affiliates) will, without the prior written consent\nof the other party, solicit for employment any management level employee (excluding, for avoidance of doubt, any pharmacist or other store level\nemployee) employed by the other party or its subsidiaries, provided that the foregoing provision will not restrict (i) general advertisements for\nemployment conducted\nby such party or any agent (including placement and recruitment agencies) not specifically targeted at such persons or hiring any such person in\nresponse to any such general advertisement, (ii) hiring a person who contacts a party on his or her own initiative without any direct or indirect\nencouragement by a party or (iii) soliciting or hiring a person whose employment was terminated by the other party.\nNo failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver thereof or preclude any other or\nfurther exercise thereof or the exercise of any other right, power or privilege hereunder.\nEach party agrees that a party would be irreparably injured by a breach of this agreement by the other party or its Representatives and that, in\nsuch event, the non-breaching party shall be entitled, in addition to any and all other remedies, to injunctive relief and specific performance.\nThe Company and its Representatives make no representations or warranties, express or implied, with respect to the Confidential Information,\nexcept for any representations and warranties that may be expressly made to a purchaser in a definitive purchase agreement when, as, and if finally\nexecuted, and subject to such limitations and restrictions as may be specified in such agreement. CVS agrees that neither the Company nor any of its\nRepresentatives shall have any liability to CVS or any of its Representatives resulting from the selection or use of the Confidential Information by\nCVS or its Representatives or any errors therein or omission therefrom. CVS understands and agrees that, unless and until a definitive agreement\nbetween the Company and CVS with respect to the proposed Transaction has been executed and delivered, neither the Company nor CVS will be\nunder any legal obligation of any kind whatsoever with respect to any transaction (except for the express obligations set forth in this agreement).\nAll proprietary and intellectual property rights in and to the Confidential Information shall remain the sole property of the Company, and\nnothing in this agreement shall be construed in any way to grant to CVS or its Representatives any express or implied option, license or other right,\ntitle or interest in or to any Confidential Information, or to any intellectual property rights embodied in such Confidential Information.\nIf any term or provision of this agreement or any application hereof shall be invalid and unenforceable, the remainder of this agreement and\nany other application of such term or provision shall not be affected thereby.\nThis agreement may be modified or waived only by an instrument signed by the parties hereto. This agreement may not be assigned by any\nparty hereto without the express prior written consent of the other party hereto.\nThis agreement shall be governed by, and construed in accordance with, the laws of the State of New York.\nThis agreement will terminate on the third anniversary of the date hereof. This agreement may be executed and delivered by facsimile. Any\nfacsimile signatures shall have the same legal effect as manual signatures.\nPlease confirm your agreement with the foregoing by signing in the space indicated below, and return a signed copy of this agreement to us.\nVery truly yours,\nCVS Caremark Corporation\nBy: /s/ Douglas A. Sgarro\nName: Douglas A. Sgarro\nTitle: Executive Vice President and Chief\nLegal Officer\nAccepted and agreed:\nLongs Drug Stores Corporation\nBy: /s/ William F. Rainey\nName: William F. Rainey\nTitle: Senior Vice President, Secretary and\nGeneral Counsel	EX-99.(D)(2) 11 dex99d2.htm NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nCVS Caremark Corporation\nJuly 8, 2008\nLongs Drug Stores Corporation\n141 North Civic Drive\nWalnut Creek, California 94596\nAttention: William F. Rainey, Esq.\nLadies and Gentlemen:\n»\nIn connection with our mutual consideration of a possible transaction (the “Transaction”) between CVS Caremark Corporation (“we”, “us” or\n“CVS”) and Longs Drug Stores Corporation (the “Company”), it is expected that the Company or its Representatives (as defined below) will furnish\nCVS and its Representatives with certain information about the business, operations and affairs of the Company and its subsidiaries. Such\ninformation (whether oral, written, electronic or otherwise), regardless of the form in which it is provided, together with any notes, analyses,\ncompilations, studies, interpretations or other documents prepared by CVS or its Representatives which contain or otherwise reflect such\ninformation, is hereinafter referred to as “Confidential Information,” except that “Confidential Information” does not include any information that\n(i) was publicly available prior to the date of this agreement or hereafter becomes publicly available without any violation of this agreement on the\npart of CVS or any of its Representatives (ii) was available to CVS or its Representatives on a non-confidential basis prior to its disclosure to CVS or\nits Representatives by the Company or its Representatives or (iii) becomes available to CVS and its Representatives from a person other than the\nCompany and its Representatives who is not, to the best of our knowledge, subject to any legally binding obligation to keep such information\nconfidential. As used in this agreement, “person” means an individual or entity and the “Representatives” of any person means the affiliates,\nofficers, directors, employees, attorneys, accountants, financial advisors and other agents or representatives of such person.\nWe agree that all Confidential Information will be kept confidential and will not be disclosed, in whole or in part, by CVS or any of its\nRepresentatives to any person other than those of our Representatives who need to know such Confidential Information for the purpose of evaluating\na possible Transaction. CVS will be responsible for any breach of this agreement by us or any of your Representatives.\nWithout the prior written consent of the other party, each party agrees that neither such party nor any of its Representatives will disclose to any\nperson (other than to its Representatives that have a need to know such information) the fact that any Confidential Information has been made\navailable hereunder, that discussions or negotiations are taking place concerning a possible Transaction, or any of the terms, conditions or other facts\nwith respect to any possible Transaction or other transaction with the Company, including the status thereof, except as otherwise required by law or\nthe applicable rules of any national securities exchange.\nCVS agrees that it will not use or allow the use of any Confidential Information for any purpose except to evaluate the possible Transaction.\nCVS will inform the Company promptly of any determination by CVS not to proceed with its consideration of the possible Transaction. If\nCVS determines not to proceed with consideration of the possible Transaction, or promptly following CVS’ receipt of a request from the Company,\nCVS shall elect either to destroy or to return to the Company all Confidential Information provided to CVS or its Representatives, except for that\nportion of the Confidential Information that consists of analyses, compilations, studies or other documents prepared by CVS or its Representatives.\nThat portion of the Confidential Information that consists of analyses, compilations, studies or other documents prepared by CVS or its\nRepresentatives will, to the extent legally permitted, be destroyed immediately upon the Company’s request. Upon the request of the Company, CVS\nwill provide the Company with prompt written confirmation of CVS’ compliance with the first two sentences of this paragraph. Notwithstanding the\nforegoing, CVS’ legal department may maintain a copy of the Confidential Information in its restricted access files for actual or anticipated\nlitigation, regulatory compliance or corporate record keeping purposes.\nIf CVS or anyone to whom CVS transmits Confidential Information is requested or required (by oral questions, interrogatories, requests for\ninformation or documents, subpoenas, civil investigative demand or similar process) to disclose any of the Confidential Information, CVS will\nprovide the Company with prompt notice so that the Company may seek a protective order or other appropriate remedy and/or waive CVS’\ncompliance with the provisions of this agreement. If such protective order or other remedy is not obtained, or the Company waives CVS’ compliance\nwith the provisions of this agreement, CVS will furnish only that portion of the Confidential Information that is legally required to be furnished, in\nthe opinion of its counsel, and will exercise its commercially reasonable efforts to obtain a protective order or other reliable assurance that\nconfidential treatment will be accorded the Confidential Information.\nEach party agrees that for a period beginning on the date of this agreement and ending eighteen months after the date hereof, neither such party\nnor any of its affiliates (nor any person acting on behalf of or in concert with such party or any of its affiliates) will, without the prior written consent\nof the other party, solicit for employment any management level employee (excluding, for avoidance of doubt, any pharmacist or other store level\nemployee) employed by the other party or its subsidiaries, provided that the foregoing provision will not restrict (i) general advertisements for\nemployment conducted\nby such party or any agent (including placement and recruitment agencies) not specifically targeted at such persons or hiring any such person in\nresponse to any such general advertisement, (ii) hiring a person who contacts a party on his or her own initiative without any direct or indirect\nencouragement by a party or (iii) soliciting or hiring a person whose employment was terminated by the other party.\nNo failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver thereof or preclude any other or\nfurther exercise thereof or the exercise of any other right, power or privilege hereunder.\nEach party agrees that a party would be irreparably injured by a breach of this agreement by the other party or its Representatives and that, in\nsuch event, the non-breaching party shall be entitled, in addition to any and all other remedies, to injunctive relief and specific performance.\nThe Company and its Representatives make no representations or warranties, express or implied, with respect to the Confidential Information,\nexcept for any representations and warranties that may be expressly made to a purchaser in a definitive purchase agreement when, as, and if finally\nexecuted, and subject to such limitations and restrictions as may be specified in such agreement. CVS agrees that neither the Company nor any of its\nRepresentatives shall have any liability to CVS or any of its Representatives resulting from the selection or use of the Confidential Information by\nCVS or its Representatives or any errors therein or omission therefrom. CVS understands and agrees that, unless and until a definitive agreement\nbetween the Company and CVS with respect to the proposed Transaction has been executed and delivered, neither the Company nor CVS will be\nunder any legal obligation of any kind whatsoever with respect to any transaction (except for the express obligations set forth in this agreement).\nAll proprietary and intellectual property rights in and to the Confidential Information shall remain the sole property of the Company, and\nnothing in this agreement shall be construed in any way to grant to CV'S or its Representatives any express or implied option, license or other right,\ntitle or interest in or to any Confidential Information, or to any intellectual property rights embodied in such Confidential Information.\nIf any term or provision of this agreement or any application hereof shall be invalid and unenforceable, the remainder of this agreement and\nany other application of such term or provision shall not be affected thereby.\nThis agreement may be modified or waived only by an instrument signed by the parties hereto. This agreement may not be assigned by any\nparty hereto without the express prior written consent of the other party hereto.\nThis agreement shall be governed by, and construed in accordance with, the laws of the State of New York.\nThis agreement will terminate on the third anniversary of the date hereof. This agreement may be executed and delivered by facsimile. Any\nfacsimile signatures shall have the same legal effect as manual signatures.\nPlease confirm your agreement with the foregoing by signing in the space indicated below, and return a signed copy of this agreement to us.\nVery truly yours,\nCVS Caremark Corporation\nBy: /s/ Douglas A. Sgarro\nName: Douglas A. Sgarro\nTitle:  Executive Vice President and Chief\nLegal Officer\nAccepted and agreed:\nLongs Drug Stores Corporation\nBy:  /s/ William F. Rainey\nName: William F. Rainey\nTitle:  Senior Vice President, Secretary and\nGeneral Counsel	EX-99.(D)(2) 11 dex99d2.htm NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nCVS Caremark Corporation\nJuly 8, 2008\nLongs Drug Stores Corporation\n141 North Civic Drive\nWalnut Creek, California 94596\nAttention: William F. Rainey, Esq\nLadies and Gentlemen:\nIn connection with our mutual consideration of a possible transaction (the "Transaction") between CVS Caremark Corporation ("we", "us" or\n"CVS") and Longs Drug Stores Corporation (the "Company"), it is expected that the Company or its Representatives (as defined below) will furnish\nCVS and its Representatives with certain information about the business, operations and affairs of the Company and its subsidiaries. Such\ninformation (whether oral, written, electronic or otherwise), regardless of the form in which it is provided, together with any notes, analyses,\ncompilations, studies, interpretations or other documents prepared by CVS or its Representatives which contain or otherwise reflect such\ninformation is hereinafter referred to as "Confidential Information," except that "Confidential Information" does not include any information that\n(i) was publicly available prior to the date of this agreement or hereafter becomes publicly available without any violation of this agreement on the\npart of CVS or any of its Representatives (ii) was available to CVS or its Representatives on a non-confidential basis prior to its disclosure to CVS or\nits Representatives by the Company or its Representatives or (iii) becomes available to CVS and its Representatives from a person other than the\nCompany and its Representatives who is not, to the best of our knowledge, subject to any legally binding obligation to keep such information\nconfidential. As used in this agreement, "person" means an individual or entity and the "Representatives" of any person means the affiliates,\nofficers, directors, employees, attorneys, accountants, financial advisors and other agents or representatives of such person.\nWe agree that all Confidential Information will be kept confidential and will not be disclosed, in whole or in part, by CVS or any of its\nRepresentatives to any person other than those of our Representatives who need to know such Confidential Information for the purpose of evaluating\na possible Transaction. CVS will be responsible for any breach of this agreement by us or any of your Representatives.\nWithout the prior written consent of the other party, each party agrees that neither such party nor any of its Representatives will disclose to any\nperson (other than to its Representatives that have a need to know such information) the fact that any Confidential Information has been made\navailable hereunder, that discussions or negotiations are taking place concerning a possible Transaction, or any of the terms, conditions or other facts\nwith respect to any possible Transaction or other transaction with the Company, including the status thereof, except as otherwise required by law or\nthe applicable rules of any national securities exchange.\nCVS agrees that it will not use or allow the use of any Confidential Information for any purpose except to evaluate the possible Transaction.\nCVS will inform the Company promptly of any determination by CVS not to proceed with its consideration of the possible Transaction. If\nCVS determines not to proceed with consideration of the possible Transaction, or promptly following CVS' receipt of a request from the Company,\nCVS shall elect either to destroy or to return to the Company all Confidential Information provided to CVS or its Representatives, except for that\nportion of the Confidential Information that consists of analyses, compilations, studies or other documents prepared by CVS or its Representatives.\nThat portion of the Confidential Information that consists of analyses, compilations, studies or other documents prepared by CVS or its\nRepresentatives will, to the extent legally permitted, be destroyed immediately upon the Company's request. Upon the request of the Company, CVS\nwill provide the Company with prompt written confirmation of CVS' compliance with the first two sentences of this paragraph. Notwithstanding the\nforegoing, CVS' legal department may maintain a copy of the Confidential Information in its restricted access files for actual or anticipated\nlitigation, regulatory compliance or corporate record keeping purposes.\nIf CVS or anyone to whom CVS transmits Confidential Information is requested or required (by oral questions, interrogatories, requests for\ninformation or documents, subpoenas, civil investigative demand or similar process) to disclose any of the Confidential Information, CVS will\nprovide the Company with prompt notice so that the Company may seek a protective order or other appropriate remedy and/or waive CVS'\ncompliance with the provisions of this agreement. If such protective order or other remedy is not obtained, or the Company waives CVS' compliance\nwith the provisions of this agreement, CVS will furnish only that portion of the Confidential Information that is legally required to be furnished, in\nthe opinion of its counsel, and will exercise its commercially reasonable efforts to obtain a protective order or other reliable assurance that\nconfidential treatment will be accorded the Confidential Information.\nEach party agrees that for a period beginning on the date of this agreement and ending eighteen months after the date hereof, neither such party\nnor any of its affiliates (nor any person acting on behalf of or in concert with such party or any of its affiliates) will, without the prior written consent\nof the other party, solicit for employment any management level employee (excluding, for avoidance of doubt, any pharmacist or other store level\nemployee) employed by the other party or its subsidiaries, provided that the foregoing provision will not restrict (i) general advertisements for\nemployment conducted\nby such party or any agent (including placement and recruitment agencies) not specifically targeted at such persons or hiring any such person in\nresponse to any such general advertisement, (ii) hiring a person who contacts a party on his or her own initiative without any direct or indirect\nencouragement by a party or (iii) soliciting or hiring a person whose employment was terminated by the other party.\nNo failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver thereof or preclude any other\nor\nfurther exercise thereof or the exercise of any other right, power or privilege hereunder.\nEach party agrees that a party would be irreparably injured by a breach of this agreement by the other party or its Representatives and that, in\nsuch event, the non-breaching party shall be entitled, in addition to any and all other remedies, to injunctive relief and specific performance.\nThe Company and its Representatives make no representations or warranties, express or implied, with respect to the Confidential Information,\nexcept for any representations and warranties that may be expressly made to a purchaser in a definitive purchase agreement when, as, and if finally\nexecuted, and subject to such limitations and restrictions as may be specified in such agreement. CVS agrees that neither the Company nor any of\nits\nRepresentatives shall have any liability to CVS or any of its Representatives resulting from the selection or use of the Confidential Information by\nCVS\nor its Representatives or any errors therein or omission therefrom. CVS understands and agrees that, unless and until a definitive agreement\nbetween the Company and CVS with respect to the proposed Transaction has been executed and delivered, neither the Company nor CVS will\nbe\nunder any legal obligation of any kind whatsoever with respect to any transaction (except for the express obligations set forth in this agreement).\nAll proprietary and intellectual property rights in and to the Confidential Information shall remain the sole property of the Company, and\nnothing in this agreement shall be construed in any way to grant to CVS or its Representatives any express or implied option, license or other right,\ntitle or interest in or to any Confidential Information, or to any intellectual property rights embodied in such Confidential Information.\nIf any term or provision of this agreement or any application hereof shall be invalid and unenforceable, the remainder of this agreement and\nany other application of such term or provision shall not be affected thereby.\nThis agreement may be modified or waived only by an instrument signed by the parties hereto. This agreement may not be assigned by any\nparty hereto without the express prior written consent of the other party hereto.\nThis agreement shall be governed by, and construed in accordance with, the laws of the State of New York.\nThis agreement will terminate on the third anniversary of the date hereof. This agreement may be executed and delivered by facsimile. Any\nfacsimile signatures shall have the same legal effect as manual signatures.\nPlease confirm your agreement with the foregoing by signing in the space indicated below, and return a signed copy of this agreement to\nus.\nVery truly yours,\nCVS Caremark Corporation\nBy:\n/s/ Douglas A. Sgarro\nName: Douglas A. Sgarro\nTitle:\nExecutive Vice President and Chief\nLegal Officer\nAccepted and agreed:\nLongs Drug Stores Corporation\nBy:\n/s/ William F. Rainey\nName: William F. Rainey\nTitle:\nSenior Vice President, Secretary and\nGeneral Counsel	EX-99.(D)(2) 11 dex99d2.htm NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nCVS Caremark Corporation\nJuly 8, 2008\nLongs Drug Stores Corporation\n141 North Civic Drive\nWalnut Creek, California 94596\nAttention: William F. Rainey, Esq.\nLadies and Gentlemen:\nIn connection with our mutual consideration of a possible transaction (the “Transaction”) between CVS Caremark Corporation (“we”, “us” or\n“CVS”) and Longs Drug Stores Corporation (the “Company”), it is expected that the Company or its Representatives (as defined below) will furnish\nCVS and its Representatives with certain information about the business, operations and affairs of the Company and its subsidiaries. Such\ninformation (whether oral, written, electronic or otherwise), regardless of the form in which it is provided, together with any notes, analyses,\ncompilations, studies, interpretations or other documents prepared by CVS or its Representatives which contain or otherwise reflect such\ninformation, is hereinafter referred to as “Confidential Information,” except that “Confidential Information” does not include any information that\n(i) was publicly available prior to the date of this agreement or hereafter becomes publicly available without any violation of this agreement on the\npart of CVS or any of its Representatives (ii) was available to CVS or its Representatives on a non-confidential basis prior to its disclosure to CVS or\nits Representatives by the Company or its Representatives or (iii) becomes available to CVS and its Representatives from a person other than the\nCompany and its Representatives who is not, to the best of our knowledge, subject to any legally binding obligation to keep such information\nconfidential. As used in this agreement, “person” means an individual or entity and the “Representatives” of any person means the affiliates,\nofficers, directors, employees, attorneys, accountants, financial advisors and other agents or representatives of such person.\nWe agree that all Confidential Information will be kept confidential and will not be disclosed, in whole or in part, by CVS or any of its\nRepresentatives to any person other than those of our Representatives who need to know such Confidential Information for the purpose of evaluating\na possible Transaction. CVS will be responsible for any breach of this agreement by us or any of your Representatives.\nWithout the prior written consent of the other party, each party agrees that neither such party nor any of its Representatives will disclose to any\nperson (other than to its Representatives that have a need to know such information) the fact that any Confidential Information has been made\navailable hereunder, that discussions or negotiations are taking place concerning a possible Transaction, or any of the terms, conditions or other facts\nwith respect to any possible Transaction or other transaction with the Company, including the status thereof, except as otherwise required by law or\nthe applicable rules of any national securities exchange.\nCVS agrees that it will not use or allow the use of any Confidential Information for any purpose except to evaluate the possible Transaction.\nCVS will inform the Company promptly of any determination by CVS not to proceed with its consideration of the possible Transaction. If\nCVS determines not to proceed with consideration of the possible Transaction, or promptly following CVS’ receipt of a request from the Company,\nCVS shall elect either to destroy or to return to the Company all Confidential Information provided to CVS or its Representatives, except for that\nportion of the Confidential Information that consists of analyses, compilations, studies or other documents prepared by CVS or its Representatives.\nThat portion of the Confidential Information that consists of analyses, compilations, studies or other documents prepared by CVS or its\nRepresentatives will, to the extent legally permitted, be destroyed immediately upon the Company’s request. Upon the request of the Company, CVS\nwill provide the Company with prompt written confirmation of CVS’ compliance with the first two sentences of this paragraph. Notwithstanding the\nforegoing, CVS’ legal department may maintain a copy of the Confidential Information in its restricted access files for actual or anticipated\nlitigation, regulatory compliance or corporate record keeping purposes.\nIf CVS or anyone to whom CVS transmits Confidential Information is requested or required (by oral questions, interrogatories, requests for\ninformation or documents, subpoenas, civil investigative demand or similar process) to disclose any of the Confidential Information, CVS will\nprovide the Company with prompt notice so that the Company may seek a protective order or other appropriate remedy and/or waive CVS’\ncompliance with the provisions of this agreement. If such protective order or other remedy is not obtained, or the Company waives CVS’ compliance\nwith the provisions of this agreement, CVS will furnish only that portion of the Confidential Information that is legally required to be furnished, in\nthe opinion of its counsel, and will exercise its commercially reasonable efforts to obtain a protective order or other reliable assurance that\nconfidential treatment will be accorded the Confidential Information.\nEach party agrees that for a period beginning on the date of this agreement and ending eighteen months after the date hereof, neither such party\nnor any of its affiliates (nor any person acting on behalf of or in concert with such party or any of its affiliates) will, without the prior written consent\nof the other party, solicit for employment any management level employee (excluding, for avoidance of doubt, any pharmacist or other store level\nemployee) employed by the other party or its subsidiaries, provided that the foregoing provision will not restrict (i) general advertisements for\nemployment conducted\nby such party or any agent (including placement and recruitment agencies) not specifically targeted at such persons or hiring any such person in\nresponse to any such general advertisement, (ii) hiring a person who contacts a party on his or her own initiative without any direct or indirect\nencouragement by a party or (iii) soliciting or hiring a person whose employment was terminated by the other party.\nNo failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver thereof or preclude any other or\nfurther exercise thereof or the exercise of any other right, power or privilege hereunder.\nEach party agrees that a party would be irreparably injured by a breach of this agreement by the other party or its Representatives and that, in\nsuch event, the non-breaching party shall be entitled, in addition to any and all other remedies, to injunctive relief and specific performance.\nThe Company and its Representatives make no representations or warranties, express or implied, with respect to the Confidential Information,\nexcept for any representations and warranties that may be expressly made to a purchaser in a definitive purchase agreement when, as, and if finally\nexecuted, and subject to such limitations and restrictions as may be specified in such agreement. CVS agrees that neither the Company nor any of its\nRepresentatives shall have any liability to CVS or any of its Representatives resulting from the selection or use of the Confidential Information by\nCVS or its Representatives or any errors therein or omission therefrom. CVS understands and agrees that, unless and until a definitive agreement\nbetween the Company and CVS with respect to the proposed Transaction has been executed and delivered, neither the Company nor CVS will be\nunder any legal obligation of any kind whatsoever with respect to any transaction (except for the express obligations set forth in this agreement).\nAll proprietary and intellectual property rights in and to the Confidential Information shall remain the sole property of the Company, and\nnothing in this agreement shall be construed in any way to grant to CVS or its Representatives any express or implied option, license or other right,\ntitle or interest in or to any Confidential Information, or to any intellectual property rights embodied in such Confidential Information.\nIf any term or provision of this agreement or any application hereof shall be invalid and unenforceable, the remainder of this agreement and\nany other application of such term or provision shall not be affected thereby.\nThis agreement may be modified or waived only by an instrument signed by the parties hereto. This agreement may not be assigned by any\nparty hereto without the express prior written consent of the other party hereto.\nThis agreement shall be governed by, and construed in accordance with, the laws of the State of New York.\nThis agreement will terminate on the third anniversary of the date hereof. This agreement may be executed and delivered by facsimile. Any\nfacsimile signatures shall have the same legal effect as manual signatures.\nPlease confirm your agreement with the foregoing by signing in the space indicated below, and return a signed copy of this agreement to us.\nVery truly yours,\nCVS Caremark Corporation\nBy: /s/ Douglas A. Sgarro\nName: Douglas A. Sgarro\nTitle: Executive Vice President and Chief\nLegal Officer\nAccepted and agreed:\nLongs Drug Stores Corporation\nBy: /s/ William F. Rainey\nName: William F. Rainey\nTitle: Senior Vice President, Secretary and\nGeneral Counsel
+3d8896809d808aaf152cf2f982851908.pdf	effective_date jurisdiction party term	Nondisclosure Agreement\nThis Agreement is entered into by and between Information Spectrum, Inc. (hereinafter “ISI”), a corporation with offices at 7611 Little River\nTurnpike, Annandale, Virginia 22003, and SmartMetric, Inc., a corporation with offices at 67 Wall Street, Level 22, New York, New York 10005\n(hereinafter “SmartMetric”).\n1.\n“Proprietary Information” is defined as information that the disclosing party at the time of disclosure identified in writing as Proprietary\nInformation by means of a proprietary or confidential legend, marking, stamp, or other positive written notice identifying the information to be\nproprietary or confidential. In order for information disclosed orally or visually by a party to this Agreement to be considered Proprietary\nInformation protected hereunder, the disclosing party shall identify the information as proprietary at the time of the disclosure and, within ten\n(10) days after such oral or visual disclosure, reduce the subject matter of disclosure to writing, properly stamped with a proprietary legend,\nmarking, stamp or other positive written notice, and submit it to the receiving party.\n2.\nProprietary Information disclosed hereunder may be used only for mutual benefit of SmartMetric and ISI in conducting discussions and\nexchanging information relating to fingerprint biometric, biometric smartcard with fingerprint storage, high-capacity memory cards, contact and\ncontactless identification cards, and the processing of information on these identification cards, and then only in strict accordance with the terms\nof this Agreement.\n3.\nIt is agreed that for a period of five (5) years following the receipt of Proprietary Information, each party will use such information only\nfor the purpose(s) set out in Paragraph 2 above and shall take reasonable efforts to preserve the confidentiality of such Proprietary Information,\nand prevent disclosure thereof to third parties. Each party agrees that it will use the same reasonable efforts to protect the other’s Proprietary\nInformation as are used to protect its own, but, in any event, not less than reasonable care.\n4.\nThe obligation to protect Proprietary Information, and the liability for unauthorized disclosure or use of Proprietary Information, shall not\napply with respect to: such information that is now available or becomes available to the public without breach of this Agreement; information\nlawfully received without restrictions from other sources, including the U.S . Government; information published or disclosed by the disclosing\nparty to others, including the U.S. Government, without restriction; information developed by the receiving party independent of and without use\nof the information disclosed by the disclosing party; or information that is required to be disclosed pursuant to any law or judicial or\ngovernmental demand, requirement or order, provided that the receiving party shall give reasonable notice to the disclosing party of such order to\nenable the disclosing party to seek legal protection of the Proprietary Information.\n5.\nThe parties agree that disclosures of Proprietary Information shall be restricted to those individuals directly participating in the effort set\nout in Paragraph 2 who have a need to know been made aware of and consent to abide by the restrictions contained herein concerning the\ndisclosure and use of such information. The receiving party agrees to provide the disclosing party a list of those individuals to whom such\ndisclosures have been made upon request of the disclosing party.\n6.\nThis Agreement shall expire two (2) years after the effective date of this Agreement, but may be terminated earlier by either party giving\nthirty (30) days notice in writing to the other party of its intention to terminate. Termination shall not, however, affect the rights and obligations\ncontained herein with respect to Proprietary Information disclosed hereunder prior to termination.\n7.\nUpon termination or expiration of this Agreement or upon the written request of either party at any time, each party will, within a\nreasonable period of time thereafter, not to exceed thirty (30) days, return all Proprietary Information received from the other party and copies\nmade thereof by the receiving party under this Agreement, or certify by written memorandum that all such Proprietary Information has been\ndestroyed.\n8.\nExcept as expressly provided herein, neither the execution and delivery of this Agreement nor the furnishing of any Proprietary\nInformation shall be construed as granting either expressly or by implication, estoppel or otherwise, any license under any copyright, invention,\nimprovement, discovery or patent, or trademark now or hereafter owned or controlled by a party disclosing Proprietary Information hereunder.\n9.\nThis Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written\napproval of the other party hereto.\n10.\nEach party warrants that it has the right to disclose the Proprietary Information disclosed to the other party hereunder for the purpose set\nout in Paragraph 2 above.\n11.\nNeither party shall export, transmit or otherwise convey any Proprietary Information disclose under this Agreement in contravention of\nany laws, ordinances or regulations of the U.S. Government.\n12.\nThe laws of the Commonwealth of Virginia shall govern this Agreement, without regard to its conflict of law rules.\n13.\nThis Agreement shall not be construed as a teaming, joint venture, or other such arrangement; rather, the parties hereto expressly agree\nthat this Agreement is for the purpose of protection of Proprietary Information only.\n14.\nNeither party has an obligation to supply Proprietary Information hereunder.\n15.\nThe parties agree that the terms and conditions of this Agreement are reasonable and necessary for the protection of Proprietary\nInformation and to prevent damage or loss to ISI and SmartMetric. Each party agrees that any breach or threatened breach by it, of the foregoing\nterms and conditions, will cause irreparable injury to the other party for which there is no adequate remedy at law. Therefore, each party\nexpressly agrees that the party that may be harmed shall be entitled, in addition to any other remedies available, to injunctive or other equitable\nrelief to require specific performance or to prevent a breach of this Agreement.\n16.\nThis Agreement contains the entire understanding between the parties relative to the protection of Proprietary Information and\nsupersedes all prior and collateral communications, reports, and understandings between the parties in respect thereto. No change, modification,\nalteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives of both parties.\n17.\nAll notices shall be in writing, shall bear the addresses of the parties to this Agreement and shall be dispatched by certified or registered\nmail, return receipt requested. A notice sent by facsimile shall be effective when received, provided that it is promptly confirmed by certified or\nregistered mail, return receipt requested.\nIN WITNESS WHEREOF, the parties hereto have caused this Nondisclosure Agreement to be executed as of the date and year indicated below.\nINFORMATION SPECTRUM, INC.\nSMARTMETRIC, INC.\nBy: /s/ William T. Alsbrooks\nBy: /s/ Colin Hendrick\nName: William T. Alsbrooks\nName: Colin Hendrick\nTitle: Executive Vice President\nTitle: President and CEO\nDate: August 5, 2003\nDate: August 5, 2003	Nondisclosure Agreement\nThis Agreement is entered into by and between Information Spectrum, Inc. (hereinafter “ISI”), a corporation with offices at 7611 Little River\nTurnpike, Annandale, Virginia 22003, and SmartMetric, Inc., a corporation with offices at 67 Wall Street, Level 22, New York, New York 10005\n(hereinafter “SmartMetric”).\n1. “Proprietary Information” is defined as information that the disclosing party at the time of disclosure identified in writing as Proprietary\nInformation by means of a proprietary or confidential legend, marking, stamp, or other positive written notice identifying the information to be\nproprietary or confidential. In order for information disclosed orally or visually by a party to this Agreement to be considered Proprietary\nInformation protected hereunder, the disclosing party shall identify the information as proprietary at the time of the disclosure and, within ten\n(10) days after such oral or visual disclosure, reduce the subject matter of disclosure to writing, properly stamped with a proprietary legend,\nmarking, stamp or other positive written notice, and submit it to the receiving party.\n2. Proprietary Information disclosed hereunder may be used only for mutual benefit of SmartMetric and ISI in conducting discussions and\nexchanging information relating to fingerprint biometric, biometric smartcard with fingerprint storage, high-capacity memory cards, contact and\ncontactless identification cards, and the processing of information on these identification cards, and then only in strict accordance with the terms\nof this Agreement.\n3. It is agreed that for a period of five (5) years following the receipt of Proprietary Information, each party will use such information only\nfor the purpose(s) set out in Paragraph 2 above and shall take reasonable efforts to preserve the confidentiality of such Proprietary Information,\nand prevent disclosure thereof to third parties. Each party agrees that it will use the same reasonable efforts to protect the other’s Proprietary\nInformation as are used to protect its own, but, in any event, not less than reasonable care.\n4. The obligation to protect Proprietary Information, and the liability for unauthorized disclosure or use of Proprietary Information, shall not\napply with respect to: such information that is now available or becomes available to the public without breach of this Agreement; information\nlawfully received without restrictions from other sources, including the U.S. Government; information published or disclosed by the disclosing\nparty to others, including the U.S. Government, without restriction; information developed by the receiving party independent of and without use\nof the information disclosed by the disclosing party; or information that is required to be disclosed pursuant to any law or judicial or\ngovernmental demand, requirement or order, provided that the receiving party shall give reasonable notice to the disclosing party of such order to\nenable the disclosing party to seek legal protection of the Proprietary Information.\n5. The parties agree that disclosures of Proprietary Information shall be restricted to those individuals directly participating in the effort set\nout in Paragraph 2 who have a need to know been made aware of and consent to abide by the restrictions contained herein concerning the\ndisclosure and use of such information. The receiving party agrees to provide the disclosing party a list of those individuals to whom such\ndisclosures have been made upon request of the disclosing party.\n6. This Agreement shall expire two (2) years after the effective date of this Agreement, but may be terminated earlier by either party giving\nthirty (30) days notice in writing to the other party of its intention to terminate. Termination shall not, however, affect the rights and obligations\ncontained herein with respect to Proprietary Information disclosed hereunder prior to termination.\n7. Upon termination or expiration of this Agreement or upon the written request of either party at any time, each party will, within a\nreasonable period of time thereafter, not to exceed thirty (30) days, return all Proprietary Information received from the other party and copies\nmade thereof by the receiving party under this Agreement, or certify by written memorandum that all such Proprietary Information has been\ndestroyed.\n8. Except as expressly provided herein, neither the execution and delivery of this Agreement nor the furnishing of any Proprietary\nInformation shall be construed as granting either expressly or by implication, estoppel or otherwise, any license under any copyright, invention,\nimprovement, discovery or patent, or trademark now or hereafter owned or controlled by a party disclosing Proprietary Information hereunder.\n9. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written\napproval of the other party hereto.\n10. Each party warrants that it has the right to disclose the Proprietary Information disclosed to the other party hereunder for the purpose set\nout in Paragraph 2 above.\n11. Neither party shall export, transmit or otherwise convey any Proprietary Information disclose under this Agreement in contravention of\nany laws, ordinances or regulations of the U.S. Government.\n12. The laws of the Commonwealth of Virginia shall govern this Agreement, without regard to its conflict of law rules.\n13. This Agreement shall not be construed as a teaming, joint venture, or other such arrangement; rather, the parties hereto expressly agree\nthat this Agreement is for the purpose of protection of Proprietary Information only.\n14. Neither party has an obligation to supply Proprietary Information hereunder.\n15. The parties agree that the terms and conditions of this Agreement are reasonable and necessary for the protection of Proprietary\nInformation and to prevent damage or loss to ISI and SmartMetric. Each party agrees that any breach or threatened breach by it, of the foregoing\nterms and conditions, will cause irreparable injury to the other party for which there is no adequate remedy at law. Therefore, each party\nexpressly agrees that the party that may be harmed shall be entitled, in addition to any other remedies available, to injunctive or other equitable\nrelief to require specific performance or to prevent a breach of this Agreement.\n16. This Agreement contains the entire understanding between the parties relative to the protection of Proprietary Information and\nsupersedes all prior and collateral communications, reports, and understandings between the parties in respect thereto. No change, modification,\nalteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives of both parties.\n17. All notices shall be in writing, shall bear the addresses of the parties to this Agreement and shall be dispatched by certified or registered\nmail, return receipt requested. A notice sent by facsimile shall be effective when received, provided that it is promptly confirmed by certified or\nregistered mail, return receipt requested.\nIN WITNESS WHEREOF, the parties hereto have caused this Nondisclosure Agreement to be executed as of the date and year indicated below.\nINFORMATION SPECTRUM, INC. SMARTMETRIC, INC.\nBy: /s/ William T. Alsbrooks By:_/s/ Colin Hendrick\nName: William T. Alsbrooks Name: Colin Hendrick\nTitle: Executive Vice President Title: President and CEO\nDate: August 5, 2003 Date: August 5, 2003	Nondisclosure Agreement\nThis Agreement is entered into by and between Information Spectrum, Inc. (hereinafter "ISI"), a corporation with offices at 7611 Little River\nTurnpike, Annandale, Virginia 22003, and SmartMetric, Inc., a corporation with offices at 67 Wall Street, Level 22, New York, New York 10005\n(hereinafter "SmartMetric").\n1.\n"Proprietary Information" is defined as information that the disclosing party at the time of disclosure identified in writing as Proprietary\nInformation by means of a proprietary or confidential legend, marking, stamp, or other positive written notice identifying the information to be\nproprietary or confidential. In order for information disclosed orally or visually by a party to this Agreement to be considered Proprietary\nInformation\nprotected\nhereunder,\nthe\ndisclosing\nparty\nshall\nidentify\nthe\ninformation\nas\nproprietary\nat\nthe\ntime\nof\nthe\ndisclosure\nand,\nwithin\nten\n(10) days after such oral or visual disclosure, reduce the subject matter of disclosure to writing, properly stamped with a proprietary legend,\nmarking, stamp or other positive written notice, and submit it to the receiving party.\n2.\nProprietary Information disclosed hereunder may be used only for mutual benefit of SmartMetric and ISI in conducting discussions and\nexchanging information relating to fingerprint biometric, biometric smartcard with fingerprint storage, high-capacity memory cards, contact and\ncontactless identification cards, and the processing of information on these identification cards, and then only in strict accordance with the terms\nof this Agreement.\n3.\nIt is agreed that for a period of five (5) years following the receipt of Proprietary Information, each party will use such information only\nfor the purpose(s) set out in Paragraph 2 above and shall take reasonable efforts to preserve the confidentiality of such Proprietary Information,\nand prevent disclosure thereof to third parties. Each party agrees that it will use the same reasonable efforts to protect the other's Proprietary\nInformation as are used to protect its own, but, in any event, not less than reasonable care.\n4.\nThe obligation to protect Proprietary Information, and the liability for unauthorized disclosure or use of Proprietary Information shall not\napply with respect to: such information that is now available or becomes available to the public without breach of this Agreement; information\nlawfully\nreceived\nwithout\nrestrictions\nfrom\nother\nsources,\nincluding\nthe\nU.S.\nGovernment;\ninformation\npublished\nor\ndisclosed\nby\nthe\ndisclosing\nparty to others, including the U.S. Government, without restriction; information developed by the receiving party independent of and without use\nof the information disclosed by the disclosing party; or information that is required to be disclosed pursuant to any law or judicia or\ngovernmental demand, requirement or order, provided that the receiving party shall give reasonable notice to the disclosing party of such order\nto\nenable the disclosing party to seek legal protection of the Proprietary Information.\n5.\nThe parties agree that disclosures of Proprietary Information shall be restricted to those individuals directly participating in the effort set\nout in Paragraph 2 who have a need to know been made aware of and consent to abide by the restrictions contained herein concerning the\ndisclosure and use of such information. The receiving party agrees to provide the disclosing party a list of those individuals to whom such\ndisclosures have been made upon request of the disclosing party.\n6.\nThis Agreement shall expire two (2) years after the effective date of this Agreement, but may be terminated earlier by either party giving\nthirty (30) days notice in writing to the other party of its intention to terminate. Termination shall not, however, affect the rights and obligations\ncontained herein with respect to Proprietary Information disclosed hereunder prior to termination.\n7.\nUpon termination or expiration of this Agreement or upon the written request of either party at any time, each party will, within\na\nreasonable period of time thereafter, not to exceed thirty (30) days, return all Proprietary Information received from the other party and copies\nmade thereof by the receiving party under this Agreement, or certify by written memorandum that all such Proprietary Information has been\ndestroyed.\n8.\nExcept as expressly provided herein, neither the execution and delivery of this Agreement nor the furnishing of any Proprietary\nInformation shall be construed as granting either expressly or by implication, estoppel or otherwise, any license under any copyright, invention,\nimprovement, discovery or patent, or trademark now or hereafter owned or controlled by a party disclosing Proprietary Information hereunder.\n9.\nThis Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written\napproval of the other party hereto.\n10.\nEach party warrants that it has the right to disclose the Proprietary Information disclosed to the other party hereunder for the purpose set\nout in Paragraph 2 above.\n11.\nNeither party shall export, transmit or otherwise convey any Proprietary Information disclose under this Agreement in contravention of\nany laws, ordinances or regulations of the U.S. Government.\n12\nThe laws of the Commonwealth of Virginia shall govern this Agreement, without regard to its conflict of law rules.\n13.\nThis Agreement shall not be construed as a teaming, joint venture, or other such arrangement; rather, the parties hereto expressly agree\nthat this Agreement is for the purpose of protection of Proprietary Information only.\n14.\nNeither party has an obligation to supply Proprietary Information hereunder.\n15.\nThe parties agree that the terms and conditions of this Agreement are reasonable and necessary for the protection of Proprietary\nInformation and to prevent damage or loss to ISI and SmartMetric. Each party agrees that any breach or threatened breach by it, of the foregoing\nterms and conditions, will cause irreparable injury to the other party for which there is no adequate remedy at law. Therefore, each party\nexpressly agrees that the party that may be harmed shall be entitled, in addition to any other remedies available, to injunctive or other equitable\nrelief to require specific performance or to prevent a breach of this Agreement.\n16.\nThis Agreement contains the entire understanding between the parties relative to the protection of Proprietary Information and\nsupersedes all prior and collateral communications, reports, and understandings between the parties in respect thereto. No change, modification,\nalteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives of both parties.\n17.\nAll notices shall be in writing, shall bear the addresses of the parties to this Agreement and shall be dispatched by certified or registered\nmail, return receipt requested. A notice sent by facsimile shall be effective when received, provided that it is promptly confirmed by certified or\nregistered mail, return receipt requested.\nIN WITNESS WHEREOF, the parties hereto have caused this Nondisclosure Agreement to be executed as of the date and year indicated below.\nINFORMATION SPECTRUM, INC.\nSMARTMETRIC, INC.\nBy: /s/ William T. Alsbrooks\nBy: /s/ Colin Hendrick\nName: William T. Alsbrooks\nName: Colin Hendrick\nTitle: Executive Vice President\nTitle: President and CEO\nDate: August 5, 2003\nDate: August 5, 2003	Nondisclosure Agreement\nThis Agreement is entered into by and between Information Spectrum, Inc. (hereinafter “ISI”), a corporation with offices at 7611 Little River\nTurnpike, Annandale, Virginia 22003, and SmartMetric, Inc., a corporation with offices at 67 Wall Street, Level 22, New York, New York 10005\n(hereinafter “SmartMetric”).\n1.\n“Proprietary Information” is defined as information that the disclosing party at the time of disclosure identified in writing as Proprietary\nInformation by means of a proprietary or confidential legend, marking, stamp, or other positive written notice identifying the information to be\nproprietary or confidential. In order for information disclosed orally or visually by a party to this Agreement to be considered Proprietary\nInformation protected hereunder, the disclosing party shall identify the information as proprietary at the time of the disclosure and, within ten\n(10) days after such oral or visual disclosure, reduce the subject matter of disclosure to writing, properly stamped with a proprietary legend,\nmarking, stamp or other positive written notice, and submit it to the receiving party.\n2.\nProprietary Information disclosed hereunder may be used only for mutual benefit of SmartMetric and ISI in conducting discussions and\nexchanging information relating to fingerprint biometric, biometric smartcard with fingerprint storage, high-capacity memory cards, contact and\ncontactless identification cards, and the processing of information on these identification cards, and then only in strict accordance with the terms\nof this Agreement.\n3.\nIt is agreed that for a period of five (5) years following the receipt of Proprietary Information, each party will use such information only\nfor the purpose(s) set out in Paragraph 2 above and shall take reasonable efforts to preserve the confidentiality of such Proprietary Information,\nand prevent disclosure thereof to third parties. Each party agrees that it will use the same reasonable efforts to protect the other’s Proprietary\nInformation as are used to protect its own, but, in any event, not less than reasonable care.\n4.\nThe obligation to protect Proprietary Information, and the liability for unauthorized disclosure or use of Proprietary Information, shall not\napply with respect to: such information that is now available or becomes available to the public without breach of this Agreement; information\nlawfully received without restrictions from other sources, including the U.S . Government; information published or disclosed by the disclosing\nparty to others, including the U.S. Government, without restriction; information developed by the receiving party independent of and without use\nof the information disclosed by the disclosing party; or information that is required to be disclosed pursuant to any law or judicial or\ngovernmental demand, requirement or order, provided that the receiving party shall give reasonable notice to the disclosing party of such order to\nenable the disclosing party to seek legal protection of the Proprietary Information.\n5.\nThe parties agree that disclosures of Proprietary Information shall be restricted to those individuals directly participating in the effort set\nout in Paragraph 2 who have a need to know been made aware of and consent to abide by the restrictions contained herein concerning the\ndisclosure and use of such information. The receiving party agrees to provide the disclosing party a list of those individuals to whom such\ndisclosures have been made upon request of the disclosing party.\n6.\nThis Agreement shall expire two (2) years after the effective date of this Agreement, but may be terminated earlier by either party giving\nthirty (30) days notice in writing to the other party of its intention to terminate. Termination shall not, however, affect the rights and obligations\ncontained herein with respect to Proprietary Information disclosed hereunder prior to termination.\n7.\nUpon termination or expiration of this Agreement or upon the written request of either party at any time, each party will, within a\nreasonable period of time thereafter, not to exceed thirty (30) days, return all Proprietary Information received from the other party and copies\nmade thereof by the receiving party under this Agreement, or certify by written memorandum that all such Proprietary Information has been\ndestroyed.\n8.\nExcept as expressly provided herein, neither the execution and delivery of this Agreement nor the furnishing of any Proprietary\nInformation shall be construed as granting either expressly or by implication, estoppel or otherwise, any license under any copyright, invention,\nimprovement, discovery or patent, or trademark now or hereafter owned or controlled by a party disclosing Proprietary Information hereunder.\n9.\nThis Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one party without the prior written\napproval of the other party hereto.\n10.\nEach party warrants that it has the right to disclose the Proprietary Information disclosed to the other party hereunder for the purpose set\nout in Paragraph 2 above.\n11.\nNeither party shall export, transmit or otherwise convey any Proprietary Information disclose under this Agreement in contravention of\nany laws, ordinances or regulations of the U.S. Government.\n12.\nThe laws of the Commonwealth of Virginia shall govern this Agreement, without regard to its conflict of law rules.\n13.\nThis Agreement shall not be construed as a teaming, joint venture, or other such arrangement; rather, the parties hereto expressly agree\nthat this Agreement is for the purpose of protection of Proprietary Information only.\n14.\nNeither party has an obligation to supply Proprietary Information hereunder.\n15.\nThe parties agree that the terms and conditions of this Agreement are reasonable and necessary for the protection of Proprietary\nInformation and to prevent damage or loss to ISI and SmartMetric. Each party agrees that any breach or threatened breach by it, of the foregoing\nterms and conditions, will cause irreparable injury to the other party for which there is no adequate remedy at law. Therefore, each party\nexpressly agrees that the party that may be harmed shall be entitled, in addition to any other remedies available, to injunctive or other equitable\nrelief to require specific performance or to prevent a breach of this Agreement.\n16.\nThis Agreement contains the entire understanding between the parties relative to the protection of Proprietary Information and\nsupersedes all prior and collateral communications, reports, and understandings between the parties in respect thereto. No change, modification,\nalteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives of both parties.\n17.\nAll notices shall be in writing, shall bear the addresses of the parties to this Agreement and shall be dispatched by certified or registered\nmail, return receipt requested. A notice sent by facsimile shall be effective when received, provided that it is promptly confirmed by certified or\nregistered mail, return receipt requested.\nIN WITNESS WHEREOF, the parties hereto have caused this Nondisclosure Agreement to be executed as of the date and year indicated below.\nINFORMATION SPECTRUM, INC.\nSMARTMETRIC, INC.\nBy: /s/ William T. Alsbrooks\nBy: /s/ Colin Hendrick\nName: William T. Alsbrooks\nName: Colin Hendrick\nTitle: Executive Vice President\nTitle: President and CEO\nDate: August 5, 2003\nDate: August 5, 2003
+40c1ec6e488ea94fff548ce0a5d983be.pdf	effective_date jurisdiction party term	EX-10.24 16 d567323dex1024.htm EX-10.24\nExhibit 10.24\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis agreement, made as of January 28, 2014 (the “Effective date”), between Vapotherm, Inc. (“Vapotherm”), a corporation located at 22\nIndustrial Drive, Exeter, NH 03833 and organized under the laws of Delaware, and John Coolidge, located at xxx (the “Receiving Party”).\nWHEREAS Vapotherm is in the business of developing medical device technology (the “Technology”), and Vapotherm wishes to preserve the\nsecrecy of that Technology.\nWHEREAS Vapotherm desires to provide Confidential Information to Receiving Party for the specific purposes identified herein, and Receiving\nParty desires to obtain and evaluate such Confidential Information from Vapotherm for the specific purposes identified herein.\nNOW THEREFORE, in consideration of mutual covenants and mutual promises set forth herein, the parties hereto agree as follows:\n1. Definition. “Confidential Information” shall, mean all intellectual property, business plans, financial records and strategies, marketing plans,\ncontacts, trade secrets, information, materials, documentation and software, as well as copies of all such materials made thereof as authorized by\nthis Agreement, including written, oral, or verbal disclosures. “Confidential Information” shall not include:\na.\nInformation that was in the public domain, in its entirety in a unified form, at the time of disclosure to Receiving Party by Vapotherm;\nb. Information known to Receiving Party prior to its disclosure by Vapotherm, such prior knowledge to be demonstrated by Receiving Party’s\nrecords prepared before the date the Confidential Information is disclosed by Vapotherm;\nc.\nInformation that becomes part of the public domain after the date of disclosure by Vapotherm through no fault of Receiving Party;\nd. Information that is disclosed by a third party to Receiving Party after the date of disclosure by Vapotherm, where the third party did not\nrequire Receiving Party to hold such information in confidence and did not acquire such information directly or indirectly from Vapotherm.\n2. Purpose. Vapotherm agrees to disclose the Confidential Information only for the following specific purpose (‘Permitted Purpose”):\n________________ ____________________ ____________________ ____________________ ____________________\n________________ ____________________ ____________________ ____________________ ____________________\n3. Nondisclosure. The Receiving Party agrees that, in consideration of access to the Confidential Information, it shall hold such Confidential\nInformation in strict confidence and shall take all measures necessary to prevent the Confidential Information from falling into the public domain\nor into the possession of the persons not bound to this Agreement. The Receiving Party further agrees:\na.\nTo use Confidential Information for the Permitted Purpose;\nb. Not to disclose Confidential Information to any other entity, except as expressly authorized in writing by Vapotherm;\nc.\nNot to use Confidential Information in such a way as to hinder, interfere with, or in any way circumvent Vapotherm’s interest in the\nTechnology, or consulting or business relations between and among Vapotherm and third parties;\nd. Not to copy Confidential Information in whole or in part, without the express written permission of Vapotherm;\ne.\nTo return Confidential Information, including all copies and records thereof, to Vapotherm, at the Receiving Party’s expense, within five\n(5) business days after: (i) receipt of a written request from Vapotherm; (ii) a decision by Receiving Party not to enter into any consulting\nrelationship with Vapotherm; or, (iii) within thirty (30) days following the termination of this Agreement.\n4. Receiving Party’s Procedures. Receiving Party shall disclose Confidential Information only to those of its employees, agents and independent\ncontractors who have a need to know such information for the Permitted Purpose. Receiving Party shall require all employees, agents and\nindependent contractors who have access to Confidential Information to execute a confidentiality agreement limiting their use of such information\nto the Permitted Purpose and prohibiting them from disclosing such information to third parties.\n5. Injunctive Relief. Because of the unique nature of the Confidential information, the Receiving Party understands and agrees that Vapotherm will\nsuffer irreparable harm in the event that any party hereto fails to comply with any of the terms of the Agreement, and monetary damages may be\ninadequate to compensate such breach. Accordingly, the Receiving Party agrees that Vapotherm will, in addition to any other remedies available to\nit at law or in equity, be entitled to injunctive relief to enforce the terms of this Agreement.\n6. Misuse of Confidential Information. The Receiving Party shall promptly advise Vapotherm, in writing, of any misappropriation or misuse of the\nConfidential Information, by any entity, which may come to its attention.\n7. Inventions. Inventions means all discoveries, improvements, modifications and enhancements relating to the Technology that are conceived,\ndeveloped or reduced to practice by Receiving Party during die Term, either solely or jointly with others: (i) during the course of or as a result of\nperforming the Permitted Purpose, or (ii) that are\n-2-\nrelated to or attributable to Vapotherm’s products, or later modifications thereof, whether patentable or not, and all Intellectual Property rights\ntherein. All Inventions will be immediately reported to Vapotherm and shall be the exclusive property of Vapotherm. The Receiving Party will\nperform, at Vapotherm’s request and expense, any act which it can reasonably perform that Vapotherm deems necessary to vest title to such\ninventions and ideas in Vapotherm and to execute any and all patent applications in connection therewith.\n8. Government Order. In the event that the Receiving Party is ordered to disclose the Confidential Information pursuant to a judicial or\ngovernmental request, requirement or order, Receiving Party shall immediately notify Vapotherm and take reasonable steps to assist Vapotherm in\ncontesting such request, requirement or order or otherwise protecting Vapotherm’s rights.\n9. Compliance With Export Restrictions. The Receiving Party will not export, directly or indirectly, any technical data acquired from Vapotherm\nunder this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of\nexport requires an export license or other governmental approval without first obtaining such license or approval.\n10. No Warranties. The Receiving Party acknowledges that Confidential Information may still be under development, or may be incomplete, and that\nsuch information may relate to products that are under development or are planned for development. VAPOTHERM MAKES NO WARRANTIES\nREGARDING THE ACCURACY OF THIS CONFIDENTIAL INFORMATION. Vapotherm accepts no responsibility for any expenses, losses or\naction incurred or undertaken by Receiving Party as a result of Receiving Party’s receipt or use of Confidential Information. VAPOTHERM\nMAKES NO WARRANTIES OR REPRESENTATIONS THAT IT WILL INTRODUCE ANY PRODUCT RELATING TO CONFIDENTIAL\nINFORMATION.\n11. Survival. The restrictions and obligations of this Agreement shall continue and shall survive the termination of the Purpose of the disclosure for a\nperiod of five (5) years.\n12. Interpretation; Venue. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware, without reference\nto its choice of law provisions. The parties agree that any legal action or proceedings brought by or against them with respect to this Agreement\nshall be brought in the state or federal courts located in Delaware, USA and, by execution and delivery hereof, the parties hereby irrevocably\nsubmit to each such jurisdiction and hereby irrevocably waive any and all objections which they may have with respect to venue in any of the\nabove courts.\n13. Division/Separation. This Agreement is divisible and separable so that if any provision(s) hereof shall be held to be invalid, such holdings shall\nnot impair enforcement or validity of the remaining provisions hereof. If any provision is held to be too broad to be enforced, such provision shall\nbe construed to create an obligation to the full extent allowable by law.\n-3-\n14. Entire Understanding. This Agreement constitutes the entire understanding of the parties with respect to the specific subject matter of this\nAgreement and supersedes and replaces any and all prior understandings, arrangements and/or agreements, whether written or oral, relating to the\nTechnology.\n15. Waiver. Waiver of any breach of this Agreement shall not be construed as a waiver of the underlying obligations of this Agreement.\n16. Right in Confidential Information. No license or other right is created or granted hereby, except the specific right to receive the Confidential\nInformation and evaluate it as set forth herein, nor shall any license or any other right with respect to the subject matter hereof be created or\ngranted except by written agreement signed by the duly authorized representative of each of the parties hereto.\n17. Modification. No addition to, deletion from, or modification of the provisions of this Agreement shall be permitted or shall be binding upon a\nparty hereto unless made in writing and signed by each party.\n18. Assignment. The rights and obligations herein shall bind the parties, their legal representatives, successors, heirs, and assigns.\nIN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement on the date first above written.\nRECEIVING PARTY:\nVAPOTHERM, INC.:\nSigned:\n/s/ John Coolidge\nSigned:\n/s/ John Landry\nName: John Coolidge\nName: John Landry\nTitle: Consultant\nTitle: VP + CFO\nEmail xxx@xxx.com\nEmail: jlandry@vtherm.com\nAddress:\nxxx\nAddress:\n22 Industrial Drive\nxxx\nExeter, NH 03833\nxxx\n603.658.0411\nPhone:\nxxx-xxx-xxxx\nDate:\nJan 28th 2014\nDate: 1/28/14\n-4-	EX-10.24 16 d567323dex1024.htm EX-10.24 Exhibit 10.24\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis agreement, made as of January 28, 2014 (the “Effective date”), between Vapotherm, Inc. (“Vapotherm™), a corporation located at 22 Industrial Drive, Exeter, NH 03833 and organized under the laws of Delaware, and John Coolidge, located at xxx (the “Receiving Party™). WHEREAS Vapotherm is in the business of developing medical device technology (the “Technology”), and Vapotherm wishes to preserve the secrecy of that Technology. WHEREAS Vapotherm desires to provide Confidential Information to Receiving Party for the specific purposes identified herein, and Receiving Party desires to obtain and evaluate such Confidential Information from Vapotherm for the specific purposes identified herein. NOW THEREFORE, in consideration of mutual covenants and mutual promises set forth herein, the parties hereto agree as follows: 1.  Definition. “Confidential Information” shall, mean all intellectual property, business plans, financial records and strategies, marketing plans, contacts, trade secrets, information, materials, documentation and software, as well as copies of all such materials made thereof as authorized by this Agreement, including written, oral, or verbal disclosures. “Confidential Information” shall not include: d. b. Information that was in the public domain, in its entirety in a unified form, at the time of disclosure to Receiving Party by Vapotherm;\nInformation known to Receiving Party prior to its disclosure by Vapotherm, such prior knowledge to be demonstrated by Receiving Party’s\nrecords prepared before the date the Confidential Information is disclosed by Vapotherm;\nInformation that becomes part of the public domain after the date of disclosure by Vapotherm through no fault of Receiving Party;\nInformation that is disclosed by a third party to Receiving Party after the date of disclosure by Vapotherm, where the third party did not\nrequire Receiving Party to hold such information in confidence and did not acquire such information directly or indirectly from Vapotherm.\n2. Purpose. Vapotherm agrees to disclose the Confidential Information only for the following specific purpose (‘Permitted Purpose”):  \n \nNondisclosure. The Receiving Party agrees that, in consideration of access to the Confidential Information, it shall hold such Confidential\nInformation in strict confidence and shall take all measures necessary to prevent the Confidential Information from falling into the public domain\nor into the possession of the persons not bound to this Agreement. The Receiving Party further agrees:\na.  To use Confidential Information for the Permitted Purpose;\nb.  Not to disclose Confidential Information to any other entity, except as expressly authorized in writing by Vapotherm;\nc.  Not to use Confidential Information in such a way as to hinder, interfere with, or in any way circumvent Vapotherm’s interest in the\nTechnology, or consulting or business relations between and among Vapotherm and third parties;\nd.  Not to copy Confidential Information in whole or in part, without the express written permission of Vapotherm;\ne.  Toreturn Confidential Information, including all copies and records thereof, to Vapotherm, at the Receiving Party’s expense, within five\n(5) business days after: (i) receipt of a written request from Vapotherm; (ii) a decision by Receiving Party not to enter into any consulting\nrelationship with Vapotherm; or, (iii) within thirty (30) days following the termination of this Agreement.\nReceiving Party’s Procedures. Receiving Party shall disclose Confidential Information only to those of its employees, agents and independent\ncontractors who have a need to know such information for the Permitted Purpose. Receiving Party shall require all employees, agents and\nindependent contractors who have access to Confidential Information to execute a confidentiality agreement limiting their use of such information\nto the Permitted Purpose and prohibiting them from disclosing such information to third parties.\nInjunctive Relief. Because of the unique nature of the Confidential information, the Receiving Party understands and agrees that Vapotherm will\nsuffer irreparable harm in the event that any party hereto fails to comply with any of the terms of the Agreement, and monetary damages may be\ninadequate to compensate such breach. Accordingly, the Receiving Party agrees that Vapotherm will, in addition to any other remedies available to\nit at law or in equity, be entitled to injunctive relief to enforce the terms of this Agreement.\nMisuse of Confidential Information. The Receiving Party shall promptly advise Vapotherm, in writing, of any misappropriation or misuse of the\nConfidential Information, by any entity, which may come to its attention.\nInventions. Inventions means all discoveries, improvements, modifications and enhancements relating to the Technology that are conceived,\ndeveloped or reduced to practice by Receiving Party during die Term, either solely or jointly with others: (i) during the course of or as a result of\nperforming the Permitted Purpose, or (ii) that are\n-\n10. 11. 12. 13. related to or attributable to Vapotherm’s products, or later modifications thereof, whether patentable or not, and all Intellectual Property rights\ntherein. All Inventions will be immediately reported to Vapotherm and shall be the exclusive property of Vapotherm. The Receiving Party will\nperform, at Vapotherm’s request and expense, any act which it can reasonably perform that Vapotherm deems necessary to vest title to such\ninventions and ideas in Vapotherm and to execute any and all patent applications in connection therewith.\nGovernment Order. In the event that the Receiving Party is ordered to disclose the Confidential Information pursuant to a judicial or\ngovernmental request, requirement or order, Receiving Party shall immediately notify Vapotherm and take reasonable steps to assist Vapotherm in\ncontesting such request, requirement or order or otherwise protecting Vapotherm’s rights.\nCompliance With Export Restrictions. The Receiving Party will not export, directly or indirectly, any technical data acquired from Vapotherm\nunder this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of\nexport requires an export license or other governmental approval without first obtaining such license or approval.\nNo Warranties. The Receiving Party acknowledges that Confidential Information may still be under development, or may be incomplete, and that\nsuch information may relate to products that are under development or are planned for development. VAPOTHERM MAKES NO WARRANTIES\nREGARDING THE ACCURACY OF THIS CONFIDENTIAL INFORMATION. Vapotherm accepts no responsibility for any expenses, losses or\naction incurred or undertaken by Receiving Party as a result of Receiving Party’s receipt or use of Confidential Information. VAPOTHERM\nMAKES NO WARRANTIES OR REPRESENTATIONS THAT IT WILL INTRODUCE ANY PRODUCT RELATING TO CONFIDENTIAL\nINFORMATION.\nSurvival. The restrictions and obligations of this Agreement shall continue and shall survive the termination of the Purpose of the disclosure for a\nperiod of five (5) years.\nInterpretation; Venue. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware, without reference\nto its choice of law provisions. The parties agree that any legal action or proceedings brought by or against them with respect to this Agreement\nshall be brought in the state or federal courts located in Delaware, USA and, by execution and delivery hereof, the parties hereby irrevocably\nsubmit to each such jurisdiction and hereby irrevocably waive any and all objections which they may have with respect to venue in any of the\nabove courts.\nDivision/Separation. This Agreement is divisible and separable so that if any provision(s) hereof shall be held to be invalid, such holdings shall\nnot impair enforcement or validity of the remaining provisions hereof. If any provision is held to be too broad to be enforced, such provision shall\nbe construed to create an obligation to the full extent allowable by law.\n3-\n14. Entire Understanding. This Agreement constitutes the entire understanding of the parties with respect to the specific subject matter of this\nAgreement and supersedes and replaces any and all prior understandings, arrangements and/or agreements, whether written or oral, relating to the\nTechnology.\n15. Waiver. Waiver of any breach of this Agreement shall not be construed as a waiver of the underlying obligations of this Agreement.\n16. Right in Confidential Information. No license or other right is created or granted hereby, except the specific right to receive the Confidential\nInformation and evaluate it as set forth herein, nor shall any license or any other right with respect to the subject matter hereof be created or\ngranted except by written agreement signed by the duly authorized representative of each of the parties hereto.\n17. Modification. No addition to, deletion from, or modification of the provisions of this Agreement shall be permitted or shall be binding upon a\nparty hereto unless made in writing and signed by each party.\n18. Assignment. The rights and obligations herein shall bind the parties, their legal representatives, successors, heirs, and assigns.\nIN WITNESS WHEREQOF, the parties have duly executed and delivered this Agreement on the date first above written.\nRECEIVING PARTY: VAPOTHERM, INC.:\nSigned: /s/ John Coolidge Signed: /s/ John Landry\nName: John Coolidge Name: John Landry\nTitle: Consultant Title: VP + CFO\nEmail xxx@xxx.com Email: jlandry@vtherm.com\nAddress: XXX Address: 22 Industrial Drive\nXXX Exeter, NH 03833\nXXX 603.658.0411\nPhone: XXX-XXX-XXXX\nDate: Jan 28th 2014 Date: 1/28/14	EX-10.24 16 d567323dex1024.htm EX-10.24\nExhibit 10.24\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis agreement, made as of January 28, 2014 (the "Effective date"), between Vapotherm, Inc. ("Vapotherm"), a corporation located at 22\nIndustrial Drive, Exeter, NH 03833 and organized under the laws of Delaware, and John Coolidge, located at XXX (the "Receiving Party").\nWHEREAS Vapotherm is in the business of developing medical device technology (the "Technology"), and Vapotherm wishes to preserve the\nsecrecy of that Technology.\nWHEREAS Vapotherm desires to provide Confidential Information to Receiving Party for the specific purposes identified herein, and Receiving\nParty desires to obtain and evaluate such Confidential Information from Vapotherm for the specific purposes identified herein.\nNOW THEREFORE, in consideration of mutual covenants and mutual promises set forth herein, the parties hereto agree as follows:\n1.\nDefinition. "Confidential Information" shall, mean all intellectual property, business plans, financial records and strategies, marketing plans,\ncontacts, trade secrets, information, materials, documentation and software, as well as copies of all such materials made thereof as authorized by\nthis Agreement, including written, oral, or verbal disclosures. "Confidential Information" shall not include:\na.\nInformation that was in the public domain, in its entirety in a unified form, at the time of disclosure to Receiving Party by Vapotherm;\nb.\nInformation known to Receiving Party prior to its disclosure by Vapotherm, such prior knowledge to be demonstrated by Receiving Party's\nrecords prepared before the date the Confidential Information is disclosed by Vapotherm;\nC.\nInformation that becomes part of the public domain after the date of disclosure by Vapotherm through no fault of Receiving Party;\nd.\nInformation that is disclosed by a third party to Receiving Party after the date of disclosure by Vapotherm, where the third party did not\nrequire Receiving Party to hold such information in confidence and did not acquire such information directly or indirectly from Vapotherm.\n2.\nPurpose. Vapotherm agrees to disclose the Confidential Information only for the following specific purpose ('Permitted Purpose"):\n3.\nNondisclosure. The Receiving Party agrees that, in consideration of access to the Confidential Information, it shall hold such Confidential\nInformation in strict confidence and shall take all measures necessary to prevent the Confidential Information from falling into the public domain\nor into the possession of the persons not bound to this Agreement. The Receiving Party further agrees:\na.\nTo use Confidential Information for the Permitted Purpose;\nb.\nNot to disclose Confidential Information to any other entity, except as expressly authorized in writing by Vapotherm;\nC.\nNot to use Confidential Information in such a way as to hinder, interfere with, or in any way circumvent Vapotherm's interest in the\nTechnology, or consulting or business relations between and among Vapotherm and third parties;\nd.\nNot to copy Confidential Information in whole or in part, without the express written permission of Vapotherm;\ne.\nTo return Confidential Information, including all copies and records thereof, to Vapotherm, at the Receiving Party's expense, within five\n(5) business days after: (i) receipt of a written request from Vapotherm; (ii) a decision by Receiving Party not to enter into any consulting\nrelationship with Vapotherm; or, (iii) within thirty (30) days following the termination of this Agreement.\n4.\nReceiving Party's Procedures. Receiving Party shall disclose Confidential Information only to those of its employees, agents and independent\ncontractors who have a need to know such information for the Permitted Purpose. Receiving Party shall require all employees, agents and\nindependent contractors who have access to Confidential Information to execute a confidentiality agreement limiting their use of such information\nto the Permitted Purpose and prohibiting them from disclosing such information to third parties.\n5.\nInjunctive Relief. Because of the unique nature of the Confidential information, the Receiving Party understands and agrees that Vapotherm will\nsuffer irreparable harm in the event that any party hereto fails to comply with any of the terms of the Agreement, and monetary damages may be\ninadequate to compensate such breach. Accordingly, the Receiving Party agrees that Vapotherm will, in addition to any other remedies available to\nit at law or in equity, be entitled to injunctive relief to enforce the terms of this Agreement.\n6.\nMisuse of Confidential Information. The Receiving Party shall promptly advise Vapotherm, in writing, of any misappropriation or misuse of the\nConfidential Information, by any entity, which may come to its attention.\n7.\nInventions. Inventions means all discoveries, improvements, modifications and enhancements relating to the Technology that are conceived,\ndeveloped or reduced to practice by Receiving Party during die Term, either solely or jointly with others: (i) during the course of or as a result\nof\nperforming the Permitted Purpose, or (ii) that are\n-2-\nrelated to or attributable to Vapotherm's products, or later modifications thereof, whether patentable or not, and all Intellectual Property rights\ntherein. All Inventions will be immediately reported to Vapotherm and shall be the exclusive property of Vapotherm. The Receiving Party\nwill\nperform, at Vapotherm's request and expense, any act which it can reasonably perform that Vapotherm deems necessary to vest title to such\ninventions and ideas in Vapotherm and to execute any and all patent applications in connection therewith.\n8.\nGovernment Order. In the event that the Receiving Party is ordered to disclose the Confidential Information pursuant to a judicial or\ngovernmenta request, requirement or order, Receiving Party shall immediately notify Vapotherm and take reasonable steps to assist Vapotherm in\ncontesting such request, requirement or order or otherwise protecting Vapotherm's rights.\n9.\nCompliance With Export Restrictions. The Receiving Party will not export, directly or indirectly, any technical data acquired from Vapotherm\nunder this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of\nexport requires an export license or other governmental approval without first obtaining such license or approval.\n10.\nNo Warranties. The Receiving Party acknowledges that Confidential Information may still be under development, or may be incomplete, and that\nsuch information may relate to products that are under development or are planned for development. VAPOTHERM MAKES NO WARRANTIES\nREGARDING THE ACCURACY OF THIS CONFIDENTIAL INFORMATION. Vapotherm accepts no responsibility for any expenses, losses or\naction incurred or undertaken by Receiving Party as a result of Receiving Party's receipt or use of Confidential Information. VAPOTHERM\nMAKES NO WARRANTIES OR REPRESENTATIONS THAT IT WILL INTRODUCE ANY PRODUCT RELATING TO CONFIDENTIAL\nINFORMATION.\n11.\nSurvival. The restrictions and obligations of this Agreement shall continue and shall survive the termination of the Purpose of the disclosure for a\nperiod of five (5) years.\n12. Interpretation; Venue. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware, without reference\nto its choice of law provisions. The parties agree that any legal action or proceedings brought by or against them with respect to this Agreement\nshall be brought in the state or federal courts located in Delaware, USA and, by execution and delivery hereof, the parties hereby irrevocably\nsubmit to each such jurisdiction and hereby irrevocably waive any and all objections which they may have with respect to venue in any of the\nabove courts.\n13.\nDivision/Separation. This Agreement is divisible and separable so that if any provision(s) hereof shall be held to be invalid, such holdings shall\nnot impair enforcement or validity of the remaining provisions hereof. If any provision is held to be too broad to be enforced, such provision shall\nbe construed to create an obligation to the full extent allowable by law.\n-3-\n14. Entire Understanding. This Agreement constitutes the entire understanding of the parties with respect to the specific subject matter of this\nAgreement and supersedes and replaces any and all prior understandings, arrangements and/or agreements, whether written or oral, relating to the\nTechnology.\n15.\nWaiver. Waiver of any breach of this Agreement shall not be construed as a waiver of the underlying obligations of this Agreement.\n16.\nRight in Confidential Information. No license or other right is created or granted hereby, except the specific right to receive the Confidential\nInformation and evaluate it as set forth herein, nor shall any license or any other right with respect to the subject matter hereof be created or\ngranted except by written agreement signed by the duly authorized representative of each of the parties hereto.\n17.\nModification. No addition to, deletion from, or modification of the provisions of this Agreement shall be permitted or shall be binding upon\na\nparty hereto unless made in writing and signed by each party.\n18.\nAssignment. The rights and obligations herein shall bind the parties, their legal representatives, successors, heirs, and assigns.\nIN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement on the date first above written.\nRECEIVING PARTY:\nVAPOTHERM, INC.:\nSigned:\n/s/ John Coolidge\nSigned:\n/s/ John Landry\nName: John Coolidge\nName: John Landry\nTitle: Consultant\nTitle: VP + CFO\nEmail xxX@xxx.com\nEmail: jlandry@vtherm.com\nAddress:\nXXX\nAddress:\n22 Industrial Drive\nXXX\nExeter, NH 03833\nXXX\n603.658.0411\nPhone:\nXXX-XXX-XXXX\nDate:\nJan 28th 2014\nDate: 1/28/14\n-4-	EX-10.24 16 d567323dex1024.htm EX-10.24\nExhibit 10.24\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis agreement, made as of January 28, 2014 (the “Effective date”), between Vapotherm, Inc. (“Vapotherm”), a corporation located at 22\nIndustrial Drive, Exeter, NH 03833 and organized under the laws of Delaware, and John Coolidge, located at xxx (the “Receiving Party”).\nWHEREAS Vapotherm is in the business of developing medical device technology (the “Technology”), and Vapotherm wishes to preserve the\nsecrecy of that Technology.\nWHEREAS Vapotherm desires to provide Confidential Information to Receiving Party for the specific purposes identified herein, and Receiving\nParty desires to obtain and evaluate such Confidential Information from Vapotherm for the specific purposes identified herein.\nNOW THEREFORE, in consideration of mutual covenants and mutual promises set forth herein, the parties hereto agree as follows:\n1. Definition. “Confidential Information” shall, mean all intellectual property, business plans, financial records and strategies, marketing plans,\ncontacts, trade secrets, information, materials, documentation and software, as well as copies of all such materials made thereof as authorized by\nthis Agreement, including written, oral, or verbal disclosures. “Confidential Information” shall not include:\na.\nInformation that was in the public domain, in its entirety in a unified form, at the time of disclosure to Receiving Party by Vapotherm;\nb. Information known to Receiving Party prior to its disclosure by Vapotherm, such prior knowledge to be demonstrated by Receiving Party’s\nrecords prepared before the date the Confidential Information is disclosed by Vapotherm;\nc.\nInformation that becomes part of the public domain after the date of disclosure by Vapotherm through no fault of Receiving Party;\nd. Information that is disclosed by a third party to Receiving Party after the date of disclosure by Vapotherm, where the third party did not\nrequire Receiving Party to hold such information in confidence and did not acquire such information directly or indirectly from Vapotherm.\n2. Purpose. Vapotherm agrees to disclose the Confidential Information only for the following specific purpose (‘Permitted Purpose”):\n________________ ____________________ ____________________ ____________________ ____________________\n________________ ____________________ ____________________ ____________________ ____________________\n3. Nondisclosure. The Receiving Party agrees that, in consideration of access to the Confidential Information, it shall hold such Confidential\nInformation in strict confidence and shall take all measures necessary to prevent the Confidential Information from falling into the public domain\nor into the possession of the persons not bound to this Agreement. The Receiving Party further agrees:\na.\nTo use Confidential Information for the Permitted Purpose;\nb. Not to disclose Confidential Information to any other entity, except as expressly authorized in writing by Vapotherm;\nc.\nNot to use Confidential Information in such a way as to hinder, interfere with, or in any way circumvent Vapotherm’s interest in the\nTechnology, or consulting or business relations between and among Vapotherm and third parties;\nd. Not to copy Confidential Information in whole or in part, without the express written permission of Vapotherm;\ne.\nTo return Confidential Information, including all copies and records thereof, to Vapotherm, at the Receiving Party’s expense, within five\n(5) business days after: (i) receipt of a written request from Vapotherm; (ii) a decision by Receiving Party not to enter into any consulting\nrelationship with Vapotherm; or, (iii) within thirty (30) days following the termination of this Agreement.\n4. Receiving Party’s Procedures. Receiving Party shall disclose Confidential Information only to those of its employees, agents and independent\ncontractors who have a need to know such information for the Permitted Purpose. Receiving Party shall require all employees, agents and\nindependent contractors who have access to Confidential Information to execute a confidentiality agreement limiting their use of such information\nto the Permitted Purpose and prohibiting them from disclosing such information to third parties.\n5. Injunctive Relief. Because of the unique nature of the Confidential information, the Receiving Party understands and agrees that Vapotherm will\nsuffer irreparable harm in the event that any party hereto fails to comply with any of the terms of the Agreement, and monetary damages may be\ninadequate to compensate such breach. Accordingly, the Receiving Party agrees that Vapotherm will, in addition to any other remedies available to\nit at law or in equity, be entitled to injunctive relief to enforce the terms of this Agreement.\n6. Misuse of Confidential Information. The Receiving Party shall promptly advise Vapotherm, in writing, of any misappropriation or misuse of the\nConfidential Information, by any entity, which may come to its attention.\n7. Inventions. Inventions means all discoveries, improvements, modifications and enhancements relating to the Technology that are conceived,\ndeveloped or reduced to practice by Receiving Party during die Term, either solely or jointly with others: (i) during the course of or as a result of\nperforming the Permitted Purpose, or (ii) that are\n-2-\nrelated to or attributable to Vapotherm’s products, or later modifications thereof, whether patentable or not, and all Intellectual Property rights\ntherein. All Inventions will be immediately reported to Vapotherm and shall be the exclusive property of Vapotherm. The Receiving Party will\nperform, at Vapotherm’s request and expense, any act which it can reasonably perform that Vapotherm deems necessary to vest title to such\ninventions and ideas in Vapotherm and to execute any and all patent applications in connection therewith.\n8. Government Order. In the event that the Receiving Party is ordered to disclose the Confidential Information pursuant to a judicial or\ngovernmental request, requirement or order, Receiving Party shall immediately notify Vapotherm and take reasonable steps to assist Vapotherm in\ncontesting such request, requirement or order or otherwise protecting Vapotherm’s rights.\n9. Compliance With Export Restrictions. The Receiving Party will not export, directly or indirectly, any technical data acquired from Vapotherm\nunder this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of\nexport requires an export license or other governmental approval without first obtaining such license or approval.\n10. No Warranties. The Receiving Party acknowledges that Confidential Information may still be under development, or may be incomplete, and that\nsuch information may relate to products that are under development or are planned for development. VAPOTHERM MAKES NO WARRANTIES\nREGARDING THE ACCURACY OF THIS CONFIDENTIAL INFORMATION. Vapotherm accepts no responsibility for any expenses, losses or\naction incurred or undertaken by Receiving Party as a result of Receiving Party’s receipt or use of Confidential Information. VAPOTHERM\nMAKES NO WARRANTIES OR REPRESENTATIONS THAT IT WILL INTRODUCE ANY PRODUCT RELATING TO CONFIDENTIAL\nINFORMATION.\n11. Survival. The restrictions and obligations of this Agreement shall continue and shall survive the termination of the Purpose of the disclosure for a\nperiod of five (5) years.\n12. Interpretation; Venue. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware, without reference\nto its choice of law provisions. The parties agree that any legal action or proceedings brought by or against them with respect to this Agreement\nshall be brought in the state or federal courts located in Delaware, USA and, by execution and delivery hereof, the parties hereby irrevocably\nsubmit to each such jurisdiction and hereby irrevocably waive any and all objections which they may have with respect to venue in any of the\nabove courts.\n13. Division/Separation. This Agreement is divisible and separable so that if any provision(s) hereof shall be held to be invalid, such holdings shall\nnot impair enforcement or validity of the remaining provisions hereof. If any provision is held to be too broad to be enforced, such provision shall\nbe construed to create an obligation to the full extent allowable by law.\n-3-\n14. Entire Understanding. This Agreement constitutes the entire understanding of the parties with respect to the specific subject matter of this\nAgreement and supersedes and replaces any and all prior understandings, arrangements and/or agreements, whether written or oral, relating to the\nTechnology.\n15. Waiver. Waiver of any breach of this Agreement shall not be construed as a waiver of the underlying obligations of this Agreement.\n16. Right in Confidential Information. No license or other right is created or granted hereby, except the specific right to receive the Confidential\nInformation and evaluate it as set forth herein, nor shall any license or any other right with respect to the subject matter hereof be created or\ngranted except by written agreement signed by the duly authorized representative of each of the parties hereto.\n17. Modification. No addition to, deletion from, or modification of the provisions of this Agreement shall be permitted or shall be binding upon a\nparty hereto unless made in writing and signed by each party.\n18. Assignment. The rights and obligations herein shall bind the parties, their legal representatives, successors, heirs, and assigns.\nIN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement on the date first above written.\nRECEIVING PARTY:\nVAPOTHERM, INC.:\nSigned:\n/s/ John Coolidge\nSigned:\n/s/ John Landry\nName: John Coolidge\nName: John Landry\nTitle: Consultant\nTitle: VP + CFO\nEmail xxx@xxx.com\nEmail: jlandry@vtherm.com\nAddress:\nxxx\nAddress:\n22 Industrial Drive\nxxx\nExeter, NH 03833\nxxx\n603.658.0411\nPhone:\nxxx-xxx-xxxx\nDate:\nJan 28th 2014\nDate: 1/28/14\n-4-
+4198153d6cdd45b94f6bd4fbdb7b4d0f.pdf	effective_date jurisdiction party term	NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into this 10th day of July, 2006 by and between Sun Energy Solar, Inc., a\nDelaware company having an address at 6408 Parkland Drive, Suite 104, Sarasota, Florida 34243, United States of America (“Company”), and Carl\nL. Smith, an individual residing in the state of Florida, and having an address at 847 Macewen Dr, Osprey, FL 34229(“Recipient”).\nRECITALS\nA. Company and Recipient have initiated or intend to initiate discussions concerning the possibility of entering into a mutually advantageous\nbusiness relationship whereby Recipient shall perform certain services on behalf of and for the benefit of Company (the “Limited Purpose”).\nB. To facilitate the disclosure of certain Confidential Information (as defined below) by Company to Recipient, the parties desire to enter into\nthis Agreement.\nAGREEMENT\nNow therefore, in consideration of the foregoing recitals, which are hereby incorporated into this Agreement by reference, and the mutual\ncovenants and agreements contained herein, and other good and valuable consideration, the adequacy and receipt of which is hereby acknowledged,\nthe parties agree as follows:\n1. Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meanings:\n(a) “Confidential Information” mean any information, whether written, oral, magnetic, photographic, optical, or other form, tangible or\nintangible, which has been, or after the date hereof will be, furnished or disclosed by Company, or its employees, consultants, representatives\nor agents, or which Recipient may have access to in connection with the Limited Purpose, which has been designated as being confidential, or\nwhich under the circumstances of disclosure reasonably ought to be treated as confidential, including but not limited to any information\npertaining to or regarding the business, financial condition, pricing, sales, strategies, plans, customers, suppliers, properties and operations of\nCompany (including such information visually available to Recipient at Company’s premises or Company presentations), and including\nwithout limitation all technical information of any nature whatsoever and all business plans, inventions, trade secrets, know-how,\nmethodologies, concepts, techniques, discoveries, computer programs (including functionality and source code), processes, drawings, designs,\nresearch, plans or specifications relating thereto.\n(b) “Related Party” or “Related Parties” shall mean the directors, officers, employees, legal, tax and other professional advisors or\nconsultants of Recipient, to the extent such entities or persons receive Confidential Information.\n2. Non-Disclosure and Restricted Use of Confidential Information.\n(a) Recipient shall keep in strictest confidence and trust all Confidential Information and, except upon the express prior written consent\nof Company, Recipient shall (i) not disclose any Confidential Information to any other entity or person, and (ii) use the Confidential\nInformation solely as necessary to implement the Limited Purpose and not for Recipient’s own benefit or for the benefit of any other entity or\nperson. Recipient shall take all reasonable safeguards to prevent the disclosure or misuse of the Confidential Information, including without\nlimitation such measures as the Recipient takes to safeguard its own confidential information, and shall not photocopy, transcribe or otherwise\nreproduce or modify any of the Confidential Information except as necessary to implement the Limited Purpose or otherwise upon the express\nwritten consent of the Company.\n10\n(b) Recipient may disclose the Confidential Information to Related Parties on a “need to know” basis only. Recipient shall inform all\nRelated Parties who have access to the Confidential Information that such Confidential Information is confidential and proprietary to Company\nand shall require each such Related Party to agree to restrictions and obligations at least as strict as those set forth herein prior to disclosure of\nany Confidential Information. Recipient shall diligently enforce any and all confidentiality agreements with Related Parties and shall be\nresponsible and liable for any breach of the confidentiality obligations and restrictions on use set forth herein by any Related Party.\n(c) The obligations of Recipient stated in the preceding paragraphs of this Section 2 shall not apply to information that (i) is or becomes\ngenerally known or available to the public through no wrongful act of the Recipient; (ii) was in the Recipient's possession at the time of\ndisclosure or receipt, as evidenced and verified by prior tangible evidence, and was not acquired under an obligation of confidence;\n(iii) Recipient demonstrates was rightfully received by it from a third party after the time it was disclosed or obtained hereunder, provided that\nsuch third party was not under an obligation of confidence with the Company at the time of the third party’s disclosure to Recipient; (iv) is\nindependently developed by Recipient without use of or reference to the Confidential Information and without breach of this Agreement, as\nevidenced and verified by prior tangible evidence; or (v) is required to be disclosed in a judicial or administrative proceeding, or as otherwise\nrequired to be disclosed by law, in any such case after all reasonable legal remedies for maintaining such information in confidence have been\nexhausted, including, but not limited to, giving Company as much advance notice of the possibility of such disclosure as practical so Company\nmay attempt to stop such disclosure or obtain a protective order concerning such disclosure. Recipient shall provide Company with written\nnotice no less than five (5) days prior to the disclosure or use of any information of Company pursuant to this Section 2(c), subsections\n(i) through (v).\n(d) Recipient shall (i) notify Company immediately of any unauthorized possession, use or knowledge of the Confidential Information,\n(ii) promptly furnish Company full details of such possession, use or knowledge, and (iii) cooperate with Company against third parties as may\nbe deemed necessary by Company to protect its proprietary rights in the Confidential Information.\n3. Term of Agreement. This Agreement shall be effective as of the date of first disclosure of Confidential Information and may be terminated,\nwithout cause, with respect to future disclosures upon thirty (30) days prior written notice to the other party; provided however, that all rights and\nobligations accrued prior to such termination shall survive the termination of this Agreement. Notwithstanding anything herein to the contrary, the\nnondisclosure obligations and restrictions on use with respect to any Confidential Information shall continue and bind Recipient for a period of five\n(5) years after the date of the last disclosure of Confidential Information hereunder, except that the nondisclosure obligations and restrictions on use\nwith respect to any Confidential Information that constitutes a trade secret shall continue in effect for so long as the Confidential Information\nremains a trade secret under applicable law. Any termination or expiration of this Agreement shall be without prejudice to the rights of Company\nagainst Recipient in respect of any claim or breach of any of the provisions of this Agreement.\n4. Return of Confidential Information. Recipient shall return to Company, or at Company’s request, destroy, and shall cause its Related Parties\nto return or destroy, the Confidential Information and all copies, transcriptions or other reproductions of, and any notes relating to, the Confidential\nInformation, including without limitation, any memoranda, photocopies, computer files and libraries, computer-generated data or other similar\nrepositories or archives, upon (i) the accomplishment of the purpose for which the Confidential Information was provided, or (ii) receipt of a written\nnotice from Company requesting return or destruction of the Confidential Information, and upon request, shall provide to Company written\ncertification signed by an officer of Recipient that it has complied with the foregoing.\n5. Ownership.\n(a) All Confidential Information is and shall remain the property of Company. By disclosing Confidential Information to Recipient,\nCompany does not grant any express or implied right to Recipient to or under any patents, copyrights, trademarks, or trade secret information\nexcept as\n11\nrequired to implement the Limited Purpose. Company reserves without prejudice the ability to protect its rights under any such patents,\ncopyrights, trademarks, or trade secrets. Recipient shall not remove any proprietary, copyright, trade secret or other legend from any form of\nthe Confidential Information. Recipient shall, at the reasonable written request of Company and at Company’s expense, add to the Confidential\nInformation any proprietary, copyright, trade secret or other legend or modify the same, which Company deems necessary to protect its\nintellectual property rights. Without limiting the foregoing, Company shall retain all right, title, and interest in and to all forms of Confidential\nInformation delivered or disclosed hereunder, including, without limitation, any patents, copyrights, trademarks, service marks, trade dress,\nlogos, technical information, know-how, trade secrets, and any modifications or enhancements thereto (whether developed by Company,\nRecipient, any Related Party, or on either party’s behalf) or other intellectual property rights throughout the world, whether currently existing\nor hereafter developed or acquired, and all applications, disclosures and registrations with respect thereto (collectively, “IP Rights”). If\nRecipient or any third party engaged by Recipient is deemed to have any ownership interest or rights in any IP Rights in the Confidential\nInformation, then Recipient, for no additional consideration, shall assign and/or cause such third party to assign, and Recipient does hereby\nassign, all of such ownership interest and rights exclusively and irrevocably to Company. Recipient shall cooperate with Company and shall\ncause to be executed all such instruments and documents as Company reasonably may request in connection with such assignments and shall\ndo all other lawfully permitted acts reasonably required to further the intent of this Section 5; provided, however, this Agreement shall be\neffective regardless of whether any such additional documents are executed. Recipient shall not dispute or contest, directly or indirectly,\nCompany’s right, title and interest in or to, or the validity and enforceability of, any IP Rights in the Confidential Information (including the\nattempt to register or record the same in any jurisdiction). Notwithstanding anything herein to the contrary, this Section 5 shall survive any\ntermination or expiration of this Agreement.\n(b) Recipient may from time to time provide suggestions, comments or other feedback (“Feedback”) to Company with respect to the\nConfidential Information. Both parties agree that all Feedback is and shall be given entirely voluntarily. Recipient shall not give Feedback that\nis subject to license terms that seek to require any Company product, technology, service or documentation incorporating or derived from such\nFeedback, or any Company intellectual property, to be licensed or otherwise shared with any third party. Recipient hereby acknowledges and\nagrees that all Feedback shall be deemed Confidential Information of Company, subject to the obligations of confidentiality and restricted use\nprovided under this Agreement. Furthermore, Recipient hereby acknowledges and agrees that Company shall have the exclusive right to use,\ndisclose, reproduce, license or otherwise distribute, and exploit the Feedback as Company sees fit, entirely without obligation or restriction of\nany kind on account of intellectual property rights or otherwise.\n6. Accuracy and Completeness of Confidential Information. The disclosure of any Confidential Information to Recipient shall be solely in\nCompany’s discretion. This Agreement shall not require Company to disclose any information or to require the consummation of any transaction in\nconnection with which the Confidential Information is disclosed. Notwithstanding anything to the contrary, Company shall not be deemed to have\nmade any representation or warranty to Recipient concerning the accuracy or completeness of any Confidential Information, except to the extent that\nsuch representation or warranty may be expressly set forth in a definitive written agreement concerning any subsequent business relationship.\n7. Independent Contractors. Neither this Agreement, nor any terms and conditions contained herein, will be construed as creating a partnership,\njoint venture, or agency relationship or as granting a franchise. The parties are independent contractors each acting for its own account, and neither is\nauthorized to make any commitment or representation, express or implied, on the other’s behalf.\n8. Remedies. Recipient acknowledges and agrees that Company would be irreparably harmed if any of the Confidential Information were to be\ndisclosed to third parties, or if any use were to be made of the Confidential Information other than that specified in this Agreement, and further\nagrees that Company shall have the right to seek and obtain injunctive relief upon any violation or threatened violation of the terms of this\nAgreement\n12\nwithout the necessity of posting bond or other security, in addition to all other rights and remedies available to Company at law or in equity. Any\ntrade secrets of the Company will be entitled to all of the protections and benefits under the applicable Uniform Trade Secrets Act and any other\napplicable law. If any information that Company deems to be a trade secret is found by a court of competent jurisdiction not to be a trade secret for\npurposes of this Agreement, such information nevertheless will be considered Confidential Information for purposes of this Agreement. Recipient\nhereby waives any requirement that the Company submit proof of the economic value of any trade secret.\n9. Indemnity. Recipient shall indemnify Company for and against all damages, losses, claims, costs (including reasonable attorneys’ fees),\nexpenses and liabilities, suffered or incurred as a direct or indirect result of Recipient failing (whether intentionally or not) to fully comply with its\ncovenants and obligations under this Agreement, including by virtue of any act of any Related Party.\n10. Entire Agreement. This Agreement sets forth the complete and exclusive understanding of the parties regarding the subject matter of this\nAgreement and supersedes all prior agreements, understandings, and communications, oral or written, between the parties regarding the subject\nmatter of this Agreement. This Agreement is not, however, intended to limit any rights that Company may have under trade secret, copyright, patent,\ntrademark or other laws that may apply to the subject matter of this Agreement both during and after the term of this Agreement.\n11. Amendments. No amendment or waiver of any term of this Agreement shall be effective unless such amendment or waiver is in writing\nand is signed by each of the parties hereto.\n12. Assignment. Recipient shall not assign or transfer, in whole or in part and whether by contract or operation of law, this Agreement, or any\nrights or obligations hereunder, without the prior written consent of Company. Subject to the foregoing, this Agreement shall be binding upon, and\nshall inure to the benefit of, the parties and their respective representatives, successors and assigns.\n13. Attorneys’ Fees. If any party shall commence any action or proceeding against the other in order to enforce the provisions of this\nAgreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing party therein shall be\nentitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the party who has breached this\nAgreement, as the case may be, including reasonable attorneys’ fees.\n14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, other than such\nlaws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Florida. Any suit to\nenforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in the United States District\nCourt for the District of Florida or the District Court in and for the city of Sarasota and the County of Sarasota, State of Florida. Each party hereby\nagrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party hereby submits to the in personam\njurisdiction and venue of such courts.\n15. Severability. If any provision of the Agreement shall be held by a court competent jurisdiction to be illegal, invalid or unenforceable, the\nparties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties’ intentions and the remaining\nprovisions shall remain in full force and effect.\n[SIGNATURE PAGE FOLLOWS]\n13\nThis Agreement has been executed as of the date first set forth above.\nSun Energy Solar, Inc.\nBy: /s/ R. Craig Hall\nTitle: President\nDate: June 29, 2006\nRecipient\nSignature: /s/ Carl L. Smith\nPrinted: Carl L. Smith\nDate:\nJune 29, 2006\n14	NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into this 10th day of July, 2006 by and between Sun Energy Solar, Inc., a\nDelaware company having an address at 6408 Parkland Drive, Suite 104, Sarasota, Florida 34243, United States of America (“Company”), and Carl\nL. Smith, an individual residing in the state of Florida, and having an address at 847 Macewen Dr, Osprey, FL. 34229(“Recipient”).\nRECITALS\nA. Company and Recipient have initiated or intend to initiate discussions concerning the possibility of entering into a mutually advantageous\nbusiness relationship whereby Recipient shall perform certain services on behalf of and for the benefit of Company (the “Limited Purpose”).\nB. To facilitate the disclosure of certain Confidential Information (as defined below) by Company to Recipient, the parties desire to enter into\nthis Agreement.\nAGREEMENT\nNow therefore, in consideration of the foregoing recitals, which are hereby incorporated into this Agreement by reference, and the mutual\ncovenants and agreements contained herein, and other good and valuable consideration, the adequacy and receipt of which is hereby acknowledged,\nthe parties agree as follows:\n1. Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meanings:\n(a) “Confidential Information” mean any information, whether written, oral, magnetic, photographic, optical, or other form, tangible or\nintangible, which has been, or after the date hereof will be, furnished or disclosed by Company, or its employees, consultants, representatives\nor agents, or which Recipient may have access to in connection with the Limited Purpose, which has been designated as being confidential, or\nwhich under the circumstances of disclosure reasonably ought to be treated as confidential, including but not limited to any information\npertaining to or regarding the business, financial condition, pricing, sales, strategies, plans, customers, suppliers, properties and operations of\nCompany (including such information visually available to Recipient at Company’s premises or Company presentations), and including\nwithout limitation all technical information of any nature whatsoever and all business plans, inventions, trade secrets, know-how,\nmethodologies, concepts, techniques, discoveries, computer programs (including functionality and source code), processes, drawings, designs,\nresearch, plans or specifications relating thereto.\n(b) “Related Party” or “Related Parties” shall mean the directors, officers, employees, legal, tax and other professional advisors or\nconsultants of Recipient, to the extent such entities or persons receive Confidential Information.\n2. Non-Disclosure and Restricted Use of Confidential Information.\n(a) Recipient shall keep in strictest confidence and trust all Confidential Information and, except upon the express prior written consent\nof Company, Recipient shall (i) not disclose any Confidential Information to any other entity or person, and (ii) use the Confidential\nInformation solely as necessary to implement the Limited Purpose and not for Recipient’s own benefit or for the benefit of any other entity or\nperson. Recipient shall take all reasonable safeguards to prevent the disclosure or misuse of the Confidential Information, including without\nlimitation such measures as the Recipient takes to safeguard its own confidential information, and shall not photocopy, transcribe or otherwise\nreproduce or modify any of the Confidential Information except as necessary to implement the Limited Purpose or otherwise upon the express\nwritten consent of the Company.\n10\n(b) Recipient may disclose the Confidential Information to Related Parties on a “need to know” basis only. Recipient shall inform all\nRelated Parties who have access to the Confidential Information that such Confidential Information is confidential and proprietary to Company\nand shall require each such Related Party to agree to restrictions and obligations at least as strict as those set forth herein prior to disclosure of\nany Confidential Information. Recipient shall diligently enforce any and all confidentiality agreements with Related Parties and shall be\nresponsible and liable for any breach of the confidentiality obligations and restrictions on use set forth herein by any Related Party.\n(c) The obligations of Recipient stated in the preceding paragraphs of this Section 2 shall not apply to information that (i) is or becomes\ngenerally known or available to the public through no wrongful act of the Recipient; (ii) was in the Recipient's possession at the time of\ndisclosure or receipt, as evidenced and verified by prior tangible evidence, and was not acquired under an obligation of confidence;\n(iii) Recipient demonstrates was rightfully received by it from a third party after the time it was disclosed or obtained hereunder, provided that\nsuch third party was not under an obligation of confidence with the Company at the time of the third party’s disclosure to Recipient; (iv) is\nindependently developed by Recipient without use of or reference to the Confidential Information and without breach of this Agreement, as\nevidenced and verified by prior tangible evidence; or (v) is required to be disclosed in a judicial or administrative proceeding, or as otherwise\nrequired to be disclosed by law, in any such case after all reasonable legal remedies for maintaining such information in confidence have been\nexhausted, including, but not limited to, giving Company as much advance notice of the possibility of such disclosure as practical so Company\nmay attempt to stop such disclosure or obtain a protective order concerning such disclosure. Recipient shall provide Company with written\nnotice no less than five (5) days prior to the disclosure or use of any information of Company pursuant to this Section 2(c), subsections\n(i) through (v).\n(d) Recipient shall (i) notify Company immediately of any unauthorized possession, use or knowledge of the Confidential Information,\n(ii) promptly furnish Company full details of such possession, use or knowledge, and (iii) cooperate with Company against third parties as may\nbe deemed necessary by Company to protect its proprietary rights in the Confidential Information.\n3. Term of Agreement. This Agreement shall be effective as of the date of first disclosure of Confidential Information and may be terminated,\nwithout cause, with respect to future disclosures upon thirty (30) days prior written notice to the other party; provided however, that all rights and\nobligations accrued prior to such termination shall survive the termination of this Agreement. Notwithstanding anything herein to the contrary, the\nnondisclosure obligations and restrictions on use with respect to any Confidential Information shall continue and bind Recipient for a period of five\n(5) years after the date of the last disclosure of Confidential Information hereunder, except that the nondisclosure obligations and restrictions on use\nwith respect to any Confidential Information that constitutes a trade secret shall continue in effect for so long as the Confidential Information\nremains a trade secret under applicable law. Any termination or expiration of this Agreement shall be without prejudice to the rights of Company\nagainst Recipient in respect of any claim or breach of any of the provisions of this Agreement.\n4. Return of Confidential Information. Recipient shall return to Company, or at Company’s request, destroy, and shall cause its Related Parties\nto return or destroy, the Confidential Information and all copies, transcriptions or other reproductions of, and any notes relating to, the Confidential\nInformation, including without limitation, any memoranda, photocopies, computer files and libraries, computer-generated data or other similar\nrepositories or archives, upon (i) the accomplishment of the purpose for which the Confidential Information was provided, or (ii) receipt of a written\nnotice from Company requesting return or destruction of the Confidential Information, and upon request, shall provide to Company written\ncertification signed by an officer of Recipient that it has complied with the foregoing.\n5. Ownership.\n(a) All Confidential Information is and shall remain the property of Company. By disclosing Confidential Information to Recipient,\nCompany does not grant any express or implied right to Recipient to or under any patents, copyrights, trademarks, or trade secret information\nexcept as\n11\nrequired to implement the Limited Purpose. Company reserves without prejudice the ability to protect its rights under any such patents,\ncopyrights, trademarks, or trade secrets. Recipient shall not remove any proprietary, copyright, trade secret or other legend from any form of\nthe Confidential Information. Recipient shall, at the reasonable written request of Company and at Company’s expense, add to the Confidential\nInformation any proprietary, copyright, trade secret or other legend or modify the same, which Company deems necessary to protect its\nintellectual property rights. Without limiting the foregoing, Company shall retain all right, title, and interest in and to all forms of Confidential\nInformation delivered or disclosed hereunder, including, without limitation, any patents, copyrights, trademarks, service marks, trade dress,\nlogos, technical information, know-how, trade secrets, and any modifications or enhancements thereto (whether developed by Company,\nRecipient, any Related Party, or on either party’s behalf) or other intellectual property rights throughout the world, whether currently existing\nor hereafter developed or acquired, and all applications, disclosures and registrations with respect thereto (collectively, “IP Rights”). If\nRecipient or any third party engaged by Recipient is deemed to have any ownership interest or rights in any IP Rights in the Confidential\nInformation, then Recipient, for no additional consideration, shall assign and/or cause such third party to assign, and Recipient does hereby\nassign, all of such ownership interest and rights exclusively and irrevocably to Company. Recipient shall cooperate with Company and shall\ncause to be executed all such instruments and documents as Company reasonably may request in connection with such assignments and shall\ndo all other lawfully permitted acts reasonably required to further the intent of this Section 5; provided, however, this Agreement shall be\neffective regardless of whether any such additional documents are executed. Recipient shall not dispute or contest, directly or indirectly,\nCompany’s right, title and interest in or to, or the validity and enforceability of, any IP Rights in the Confidential Information (including the\nattempt to register or record the same in any jurisdiction). Notwithstanding anything herein to the contrary, this Section 5 shall survive any\ntermination or expiration of this Agreement.\n(b) Recipient may from time to time provide suggestions, comments or other feedback (“Feedback”) to Company with respect to the\nConfidential Information. Both parties agree that all Feedback is and shall be given entirely voluntarily. Recipient shall not give Feedback that\nis subject to license terms that seek to require any Company product, technology, service or documentation incorporating or derived from such\nFeedback, or any Company intellectual property, to be licensed or otherwise shared with any third party. Recipient hereby acknowledges and\nagrees that all Feedback shall be deemed Confidential Information of Company, subject to the obligations of confidentiality and restricted use\nprovided under this Agreement. Furthermore, Recipient hereby acknowledges and agrees that Company shall have the exclusive right to use,\ndisclose, reproduce, license or otherwise distribute, and exploit the Feedback as Company sees fit, entirely without obligation or restriction of\nany kind on account of intellectual property rights or otherwise.\n6. Accuracy and Completeness of Confidential Information. The disclosure of any Confidential Information to Recipient shall be solely in\nCompany’s discretion. This Agreement shall not require Company to disclose any information or to require the consummation of any transaction in connection with which the Confidential Information is disclosed. Notwithstanding anything to the contrary, Company shall not be deemed to have made any representation or warranty to Recipient concerning the accuracy or completeness of any Confidential Information, except to the extent that such representation or warranty may be expressly set forth in a definitive written agreement concerning any subsequent business relationship. 7. Independent Contractors. Neither this Agreement, nor any terms and conditions contained herein, will be construed as creating a partnership,\njoint venture, or agency relationship or as granting a franchise. The parties are independent contractors each acting for its own account, and neither is authorized to make any commitment or representation, express or implied, on the other’s behalf. 8. Remedies. Recipient acknowledges and agrees that Company would be irreparably harmed if any of the Confidential Information were to be\ndisclosed to third parties, or if any use were to be made of the Confidential Information other than that specified in this Agreement, and further agrees that Company shall have the right to seek and obtain injunctive relief upon any violation or threatened violation of the terms of this Agreement 12\nwithout the necessity of posting bond or other security, in addition to all other rights and remedies available to Company at law or in equity. Any\ntrade secrets of the Company will be entitled to all of the protections and benefits under the applicable Uniform Trade Secrets Act and any other\napplicable law. If any information that Company deems to be a trade secret is found by a court of competent jurisdiction not to be a trade secret for\npurposes of this Agreement, such information nevertheless will be considered Confidential Information for purposes of this Agreement. Recipient\nhereby waives any requirement that the Company submit proof of the economic value of any trade secret.\n9. Indemnity. Recipient shall indemnify Company for and against all damages, losses, claims, costs (including reasonable attorneys’ fees),\nexpenses and liabilities, suffered or incurred as a direct or indirect result of Recipient failing (whether intentionally or not) to fully comply with its\ncovenants and obligations under this Agreement, including by virtue of any act of any Related Party.\n10. Entire Agreement. This Agreement sets forth the complete and exclusive understanding of the parties regarding the subject matter of this\nAgreement and supersedes all prior agreements, understandings, and communications, oral or written, between the parties regarding the subject\nmatter of this Agreement. This Agreement is not, however, intended to limit any rights that Company may have under trade secret, copyright, patent,\ntrademark or other laws that may apply to the subject matter of this Agreement both during and after the term of this Agreement.\n11. Amendments. No amendment or waiver of any term of this Agreement shall be effective unless such amendment or waiver is in writing\nand is signed by each of the parties hereto.\n12. Assignment. Recipient shall not assign or transfer, in whole or in part and whether by contract or operation of law, this Agreement, or any\nrights or obligations hereunder, without the prior written consent of Company. Subject to the foregoing, this Agreement shall be binding upon, and\nshall inure to the benefit of, the parties and their respective representatives, successors and assigns.\n13. Attorneys’ Fees. If any party shall commence any action or proceeding against the other in order to enforce the provisions of this\nAgreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing party therein shall be\nentitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the party who has breached this\nAgreement, as the case may be, including reasonable attorneys’ fees.\n14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, other than such\nlaws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Florida. Any suit to\nenforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in the United States District\nCourt for the District of Florida or the District Court in and for the city of Sarasota and the County of Sarasota, State of Florida. Each party hereby\nagrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party hereby submits to the in personam\njurisdiction and venue of such courts.\n15. Severability. If any provision of the Agreement shall be held by a court competent jurisdiction to be illegal, invalid or unenforceable, the\nparties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties’ intentions and the remaining\nprovisions shall remain in full force and effect.\n[SIGNATURE PAGE FOLLOWS]\n13\nThis Agreement has been executed as of the date first set forth above.\n14\nSun Energy Solar, Inc.\nBy: /s/R. Craig Hall\nTitle: President\nDate: June 29, 2006\nRecipient\nSignature: /s/ Carl L. Smith\nPrinted: Carl L. Smith\nDate: June 29, 2006	NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT ("Agreement") is entered into this 10th day of July, 2006 by and between Sun Energy Solar, Inc., a\nDelaware company having an address at 6408 Parkland Drive, Suite 104, Sarasota, Florida 34243, United States of America ("Company"), and Carl\nL. Smith, an individual residing in the state of Florida, and having an address at 847 Macewen Dr, Osprey, FL 4229("Recipient").\nRECITALS\nA. Company and Recipient have initiated or intend to initiate discussions concerning the possibility of entering into a mutually advantageous\nbusiness relationship whereby Recipient shall perform certain services on behalf of and for the benefit of Company (the "Limited Purpose").\nB. To facilitate the disclosure of certain Confidential Information (as defined below) by Company to Recipient, the parties desire to enter into\nthis Agreement.\nAGREEMENT\nNow therefore, in consideration of the foregoing recitals, which are hereby incorporated into this Agreement by reference, and the mutual\ncovenants and agreements contained herein, and other good and valuable consideration, the adequacy and receipt of which is hereby acknowledged,\nthe parties agree as follows:\n1. Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meanings:\n(a) "Confidential Information" mean any information, whether written, oral, magnetic, photographic, optical, or other form, tangible or\nintangible, which has been, or after the date hereof will be, furnished or disclosed by Company, or its employees, consultants, representatives\nor agents, or which Recipient may have access to in connection with the Limited Purpose, which has been designated as being confidential, or\nwhich under the circumstances of disclosure reasonably ought to be treated as confidential, including but not limited to any information\npertaining to or regarding the business, financial condition, pricing, sales, strategies, plans, customers, suppliers, properties and operations of\nCompany (including such information visually available to Recipient at Company's premises or Company presentations), and including\nwithout limitation all technical information of any nature whatsoever and all business plans, inventions, trade secrets, know-how,\nmethodologies, concepts, techniques, discoveries, computer programs (including functionality and source code), processes, drawings, designs,\nresearch, plans or specifications relating thereto.\n(b) "Related Party" or "Related Parties" shall mean the directors, officers, employees, legal, tax and other professional advisors or\nconsultants of Recipient, to the extent such entities or persons receive Confidential Information.\n2. Non-Disclosure and Restricted Use of Confidential Information.\n(a) Recipient shall keep in strictest confidence and trust all Confidential Information and, except upon the express prior written consent\nof Company, Recipient shall (i) not disclose any Confidential Information to any other entity or person, and (ii) use the Confidential\nInformation solely as necessary to implement the Limited Purpose and not for Recipient's own benefit or for the benefit of any other entity or\nperson. Recipient shall take all reasonable safeguards to prevent the disclosure or misuse of the Confidential Information, including without\nlimitation such measures as the Recipient takes to safeguard its own confidential information, and shall not photocopy, transcribe or otherwise\nreproduce or modify any of the Confidential Information except as necessary to implement the Limited Purpose or otherwise upon the express\nwritten consent of the Company.\n10\n(b) Recipient may disclose the Confidential Information to Related Parties on a "need to know" basis only. Recipient shall inform all\nRelated Parties who have access to the Confidential Information that such Confidential Information is confidential and proprietary to Company\nand shall require each such Related Party to agree to restrictions and obligations at least as strict as those set forth herein prior to disclosure of\nany Confidential Information. Recipient shall diligently enforce any and all confidentiality agreements with Related Parties and shall be\nresponsible and liable for any breach of the confidentiality obligations and restrictions on use set forth herein by any Related Party.\n(c) The obligations of Recipient stated in the preceding paragraphs of this Section 2 shall not apply to information that (i) is or becomes\ngenerally known or available to the public through no wrongful act of the Recipient; (ii) was in the Recipient's possession at the time of\ndisclosure or receipt, as evidenced and verified by prior tangible evidence, and was not acquired under an obligation of confidence;\n(iii) Recipient demonstrates was rightfully received by it from a third party after the time it was disclosed or obtained hereunder, provided that\nsuch third party was not under an obligation of confidence with the Company at the time of the third party's disclosure to Recipient; (iv) is\nindependently developed by Recipient without use of or reference to the Confidential Information and without breach of this Agreement, as\nevidenced and verified by prior tangible evidence; or (v) is required to be disclosed in a judicial or administrative proceeding, or as otherwise\nrequired to be disclosed by law, in any such case after all reasonable legal remedies for maintaining such information in confidence have been\nexhausted, including, but not limited to, giving Company as much advance notice of the possibility of such disclosure as practical so Company\nmay attempt to stop such disclosure or obtain a protective order concerning such disclosure. Recipient shall provide Company with written\nnotice no less than five (5) days prior to the disclosure or use of any information of Company pursuant to this Section 2(c), subsections\n(i) through (v).\n(d) Recipient shall (i) notify Company immediately of any unauthorized possession, use or knowledge of the Confidential Information,\n(ii) promptly furnish Company full details of such possession, use or knowledge, and (iii) cooperate with Company against third parties as may\nbe deemed necessary by Company to protect its proprietary rights in the Confidential Information.\n3. Term of Agreement. This Agreement shall be effective as of the date of first disclosure of Confidential Information and may be terminated,\nwithout cause, with respect to future disclosures upon thirty (30) days prior written notice to the other party; provided however, that all rights and\nobligations accrued prior to such termination shall survive the termination of this Agreement. Notwithstanding anything herein to the contrary, the\nnondisclosure obligations and restrictions on use with respect to any Confidential Information shall continue and bind Recipient for a period of five\n(5) years after the date of the last disclosure of Confidential Information hereunder, except that the nondisclosure obligations and restrictions on use\nwith respect to any Confidential Information that constitutes a trade secret shall continue in effect for so long as the Confidential Information\nremains a trade secret under applicable law. Any termination or expiration of this Agreement shall be without prejudice to the rights of Company\nagainst Recipient in respect of any claim or breach of any of the provisions of this Agreement.\n4. Return of Confidential Information Recipient shall return to Company, or at Company's request, destroy, and shall cause its Related Parties\nto return or destroy, the Confidential Information and all copies, transcriptions or other reproductions of, and any notes relating to, the Confidential\nInformation, including without limitation, any memoranda, photocopies, computer files and libraries, computer-generated data or other similar\nrepositories or archives, upon (i) the accomplishment of the purpose for which the Confidential Information was provided, or (ii) receipt of a written\nnotice from Company requesting return or destruction of the Confidential Information, and upon request, shall provide to Company written\ncertification signed by an officer of Recipient that it has complied with the foregoing.\n5. Ownership.\n(a) All Confidential Information is and shall remain the property of Company. By disclosing Confidential Information to Recipient,\nCompany does not grant any express or implied right to Recipient to or under any patents, copyrights, trademarks, or trade secret information\nexcept as\n11\nrequired to implement the Limited Purpose. Company reserves without prejudice the ability to protect its rights under any such patents,\ncopyrights, trademarks, or trade secrets. Recipient shall not remove any proprietary, copyright, trade secret or other legend from any form of\nthe Confidential Information. Recipient shall, at the reasonable written request of Company and at Company's expense, add to the Confidential\nInformation any proprietary, copyright, trade secret or other legend or modify the same, which Company deems necessary to protect its\nintellectual property rights. Without limiting the foregoing, Company shall retain all right, title, and interest in and to all forms of Confidential\nInformation delivered or disclosed hereunder, including, without limitation, any patents, copyrights, trademarks, service marks, trade dress,\nlogos, technical information, know-how, trade secrets, and any modifications or enhancements thereto (whether developed by Company,\nRecipient, any Related Party, or on either party's behalf) or other intellectual property rights throughout the world, whether currently existing\nor hereafter developed or acquired, and all applications, disclosures and registrations with respect thereto (collectively, "IP Rights"). If\nRecipient or any third party engaged by Recipient is deemed to have any ownership interest or rights in any IP Rights in the Confidential\nInformation, then Recipient, for no additional consideration, shall assign and/or cause such third party to assign, and Recipient does hereby\nassign, all of such ownership interest and rights exclusively and irrevocably to Company. Recipient shall cooperate with Company and shall\ncause to be executed all such instruments and documents as Company reasonably may request in connection with such assignments and shall\ndo all other lawfully permitted acts reasonably required to further the intent of this Section 5; provided, however, this Agreement shall be\neffective regardless of whether any such additiona documents are executed. Recipient shall not dispute or contest, directly or indirectly,\nCompany's right, title and interest in or to, or the validity and enforceability of, any IP Rights in the Confidential Information (including the\nattempt to register or record the same in any jurisdiction). Notwithstanding anything herein to the contrary, this Section 5 shall survive any\ntermination or expiration of this Agreement.\n(b) Recipient may from time to time provide suggestions, comments or other feedback ("Feedback") to Company with respect to the\nConfidential Information. Both parties agree that all Feedback is and shall be given entirely voluntarily. Recipient shall not give Feedback that\nis subject to license terms that seek to require any Company product, technology, service or documentation incorporating or derived from such\nFeedback, or any Company intellectual property, to be licensed or otherwise shared with any third party. Recipient hereby acknowledges and\nagrees that all Feedback shall be deemed Confidential Information of Company, subject to the obligations of confidentiality and restricted use\nprovided under this Agreement. Furthermore, Recipient hereby acknowledges and agrees that Company shall have the exclusive right to use,\ndisclose, reproduce, license or otherwise distribute, and exploit the Feedback as Company sees fit, entirely without obligation or restriction of\nany kind on account of intellectual property rights or otherwise.\n6. Accuracy and Completeness of Confidential Information. The disclosure of any Confidential Information to Recipient shall be solely in\nCompany's discretion. This Agreement shall not require Company to disclose any information or to require the consummation of any transaction\nin\nconnection with which the Confidential Information is disclosed. Notwithstanding anything to the contrary, Company shall not be deemed to have\nmade any representation or warranty to Recipient concerning the accuracy or completeness of any Confidential Information, except to the extent that\nsuch representation or warranty may be expressly set forth in a definitive written agreement concerning any subsequent business relationship.\n7. Independent Contractors. Neither this Agreement, nor any terms and conditions contained herein, will be construed as creating a partnership,\njoint venture, or agency relationship or as granting a franchise. The parties are independent contractors each acting for its own account, and neither\nis\nauthorized to make any commitment or representation, express or implied, on the other's behalf.\n8.\nRemedies.\nRecipient\nacknowledges\nand\nagrees\nthat\nCompany\nwould\nbe\nirreparably\nharmed\nif\nany\nof\nthe\nConfidential\nInformation\nwere\nto\nbe\ndisclosed to third parties, or if any use were to be made of the Confidential Information other than that specified in this Agreement, and further\nagrees that Company shall have the right to seek and obtain injunctive relief upon any violation or threatened violation of the terms of this\nAgreement\n12\nwithout the necessity of posting bond or other security, in addition to all other rights and remedies available to Company at law or in equity. Any\ntrade secrets of the Company will be entitled to all of the protections and benefits under the applicable Uniform Trade Secrets Act and any other\napplicable law. If any information that Company deems to be a trade secret is found by a court of competent jurisdiction not to be a trade secret for\npurposes of this Agreement, such information nevertheless will be considered Confidential Information for purposes of this Agreement. Recipient\nhereby waives any requirement that the Company submit proof of the economic value of any trade secret.\n9. Indemnity.. Recipient shall indemnify Company for and against all damages, losses, claims, costs (including reasonable attorneys' fees),\nexpenses and liabilities, suffered or incurred as a direct or indirect result of Recipient failing (whether intentionally or not) to fully comply with its\ncovenants and obligations under this Agreement, including by virtue of any act of any Related Party.\n10. Entire Agreement. This Agreement sets forth the complete and exclusive understanding of the parties regarding the subject matter of this\nAgreement and supersedes all prior agreements, understandings, and communications, oral or written, between the parties regarding the subject\nmatter of this Agreement. This Agreement is not, however, intended to limit any rights that Company may have under trade secret, copyright, patent,\ntrademark or other laws that may apply to the subject matter of this Agreement both during and after the term of this Agreement.\n11. Amendments. No amendment or waiver of any term of this Agreement shall be effective unless such amendment or waiver is in writing\nand is signed by each of the parties hereto.\n12. Assignment. Recipient shall not assign or transfer, in whole or in part and whether by contract or operation of law, this Agreement, or any\nrights or obligations hereunder, without the prior written consent of Company. Subject to the foregoing, this Agreement shall be binding upon, and\nshall inure to the benefit of, the parties and their respective representatives, successors and assigns.\n13.\nAttorneys' Fees. If any party shall commence any action or proceeding against the other in order to enforce the provisions of this\nAgreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing party therein shall be\nentitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the party who has breached this\nAgreement, as the case may be, including reasonable attorneys' fees.\n14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, other than such\nlaws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Florida. Any suit to\nenforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in the United States District\nCourt for the District of Florida or the District Court in and for the city of Sarasota and the County of Sarasota, State of Florida. Each party hereby\nagrees that such courts shall have inpersonam jurisdiction and venue with respect to such party, and each party hereby submits to the in personam\njurisdiction and venue of such courts.\n15. Severability.. If any provision of the Agreement shall be held by a court competent jurisdiction to be illegal, invalid or unenforceable, the\nparties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties' intentions and the remaining\nprovisions shall remain in full force and effect.\n[SIGNATURE PAGE FOLLOWS]\n13\nThis Agreement has been executed as of the date first set forth above.\nSun Energy Solar, Inc.\nBy: /s/ R. Craig Hall\nTitle: President\nDate: June 29, 2006\nRecipient\nSignature: /s/ Carl L. Smith\nPrinted:\nCarl L. Smith\nDate:\nJune 29, 2006\n14	NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into this 10th day of July, 2006 by and between Sun Energy Solar, Inc., a\nDelaware company having an address at 6408 Parkland Drive, Suite 104, Sarasota, Florida 34243, United States of America (“Company”), and Carl\nL. Smith, an individual residing in the state of Florida, and having an address at 847 Macewen Dr, Osprey, FL 34229(“Recipient”).\nRECITALS\nA. Company and Recipient have initiated or intend to initiate discussions concerning the possibility of entering into a mutually advantageous\nbusiness relationship whereby Recipient shall perform certain services on behalf of and for the benefit of Company (the “Limited Purpose”).\nB. To facilitate the disclosure of certain Confidential Information (as defined below) by Company to Recipient, the parties desire to enter into\nthis Agreement.\nAGREEMENT\nNow therefore, in consideration of the foregoing recitals, which are hereby incorporated into this Agreement by reference, and the mutual\ncovenants and agreements contained herein, and other good and valuable consideration, the adequacy and receipt of which is hereby acknowledged,\nthe parties agree as follows:\n1. Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meanings:\n(a) “Confidential Information” mean any information, whether written, oral, magnetic, photographic, optical, or other form, tangible or\nintangible, which has been, or after the date hereof will be, furnished or disclosed by Company, or its employees, consultants, representatives\nor agents, or which Recipient may have access to in connection with the Limited Purpose, which has been designated as being confidential, or\nwhich under the circumstances of disclosure reasonably ought to be treated as confidential, including but not limited to any information\npertaining to or regarding the business, financial condition, pricing, sales, strategies, plans, customers, suppliers, properties and operations of\nCompany (including such information visually available to Recipient at Company’s premises or Company presentations), and including\nwithout limitation all technical information of any nature whatsoever and all business plans, inventions, trade secrets, know-how,\nmethodologies, concepts, techniques, discoveries, computer programs (including functionality and source code), processes, drawings, designs,\nresearch, plans or specifications relating thereto.\n(b) “Related Party” or “Related Parties” shall mean the directors, officers, employees, legal, tax and other professional advisors or\nconsultants of Recipient, to the extent such entities or persons receive Confidential Information.\n2. Non-Disclosure and Restricted Use of Confidential Information.\n(a) Recipient shall keep in strictest confidence and trust all Confidential Information and, except upon the express prior written consent\nof Company, Recipient shall (i) not disclose any Confidential Information to any other entity or person, and (ii) use the Confidential\nInformation solely as necessary to implement the Limited Purpose and not for Recipient’s own benefit or for the benefit of any other entity or\nperson. Recipient shall take all reasonable safeguards to prevent the disclosure or misuse of the Confidential Information, including without\nlimitation such measures as the Recipient takes to safeguard its own confidential information, and shall not photocopy, transcribe or otherwise\nreproduce or modify any of the Confidential Information except as necessary to implement the Limited Purpose or otherwise upon the express\nwritten consent of the Company.\n10\n(b) Recipient may disclose the Confidential Information to Related Parties on a “need to know” basis only. Recipient shall inform all\nRelated Parties who have access to the Confidential Information that such Confidential Information is confidential and proprietary to Company\nand shall require each such Related Party to agree to restrictions and obligations at least as strict as those set forth herein prior to disclosure of\nany Confidential Information. Recipient shall diligently enforce any and all confidentiality agreements with Related Parties and shall be\nresponsible and liable for any breach of the confidentiality obligations and restrictions on use set forth herein by any Related Party.\n(c) The obligations of Recipient stated in the preceding paragraphs of this Section 2 shall not apply to information that (i) is or becomes\ngenerally known or available to the public through no wrongful act of the Recipient; (ii) was in the Recipient's possession at the time of\ndisclosure or receipt, as evidenced and verified by prior tangible evidence, and was not acquired under an obligation of confidence;\n(iii) Recipient demonstrates was rightfully received by it from a third party after the time it was disclosed or obtained hereunder, provided that\nsuch third party was not under an obligation of confidence with the Company at the time of the third party’s disclosure to Recipient; (iv) is\nindependently developed by Recipient without use of or reference to the Confidential Information and without breach of this Agreement, as\nevidenced and verified by prior tangible evidence; or (v) is required to be disclosed in a judicial or administrative proceeding, or as otherwise\nrequired to be disclosed by law, in any such case after all reasonable legal remedies for maintaining such information in confidence have been\nexhausted, including, but not limited to, giving Company as much advance notice of the possibility of such disclosure as practical so Company\nmay attempt to stop such disclosure or obtain a protective order concerning such disclosure. Recipient shall provide Company with written\nnotice no less than five (5) days prior to the disclosure or use of any information of Company pursuant to this Section 2(c), subsections\n(i) through (v).\n(d) Recipient shall (i) notify Company immediately of any unauthorized possession, use or knowledge of the Confidential Information,\n(ii) promptly furnish Company full details of such possession, use or knowledge, and (iii) cooperate with Company against third parties as may\nbe deemed necessary by Company to protect its proprietary rights in the Confidential Information.\n3. Term of Agreement. This Agreement shall be effective as of the date of first disclosure of Confidential Information and may be terminated,\nwithout cause, with respect to future disclosures upon thirty (30) days prior written notice to the other party; provided however, that all rights and\nobligations accrued prior to such termination shall survive the termination of this Agreement. Notwithstanding anything herein to the contrary, the\nnondisclosure obligations and restrictions on use with respect to any Confidential Information shall continue and bind Recipient for a period of five\n(5) years after the date of the last disclosure of Confidential Information hereunder, except that the nondisclosure obligations and restrictions on use\nwith respect to any Confidential Information that constitutes a trade secret shall continue in effect for so long as the Confidential Information\nremains a trade secret under applicable law. Any termination or expiration of this Agreement shall be without prejudice to the rights of Company\nagainst Recipient in respect of any claim or breach of any of the provisions of this Agreement.\n4. Return of Confidential Information. Recipient shall return to Company, or at Company’s request, destroy, and shall cause its Related Parties\nto return or destroy, the Confidential Information and all copies, transcriptions or other reproductions of, and any notes relating to, the Confidential\nInformation, including without limitation, any memoranda, photocopies, computer files and libraries, computer-generated data or other similar\nrepositories or archives, upon (i) the accomplishment of the purpose for which the Confidential Information was provided, or (ii) receipt of a written\nnotice from Company requesting return or destruction of the Confidential Information, and upon request, shall provide to Company written\ncertification signed by an officer of Recipient that it has complied with the foregoing.\n5. Ownership.\n(a) All Confidential Information is and shall remain the property of Company. By disclosing Confidential Information to Recipient,\nCompany does not grant any express or implied right to Recipient to or under any patents, copyrights, trademarks, or trade secret information\nexcept as\n11\nrequired to implement the Limited Purpose. Company reserves without prejudice the ability to protect its rights under any such patents,\ncopyrights, trademarks, or trade secrets. Recipient shall not remove any proprietary, copyright, trade secret or other legend from any form of\nthe Confidential Information. Recipient shall, at the reasonable written request of Company and at Company’s expense, add to the Confidential\nInformation any proprietary, copyright, trade secret or other legend or modify the same, which Company deems necessary to protect its\nintellectual property rights. Without limiting the foregoing, Company shall retain all right, title, and interest in and to all forms of Confidential\nInformation delivered or disclosed hereunder, including, without limitation, any patents, copyrights, trademarks, service marks, trade dress,\nlogos, technical information, know-how, trade secrets, and any modifications or enhancements thereto (whether developed by Company,\nRecipient, any Related Party, or on either party’s behalf) or other intellectual property rights throughout the world, whether currently existing\nor hereafter developed or acquired, and all applications, disclosures and registrations with respect thereto (collectively, “IP Rights”). If\nRecipient or any third party engaged by Recipient is deemed to have any ownership interest or rights in any IP Rights in the Confidential\nInformation, then Recipient, for no additional consideration, shall assign and/or cause such third party to assign, and Recipient does hereby\nassign, all of such ownership interest and rights exclusively and irrevocably to Company. Recipient shall cooperate with Company and shall\ncause to be executed all such instruments and documents as Company reasonably may request in connection with such assignments and shall\ndo all other lawfully permitted acts reasonably required to further the intent of this Section 5; provided, however, this Agreement shall be\neffective regardless of whether any such additional documents are executed. Recipient shall not dispute or contest, directly or indirectly,\nCompany’s right, title and interest in or to, or the validity and enforceability of, any IP Rights in the Confidential Information (including the\nattempt to register or record the same in any jurisdiction). Notwithstanding anything herein to the contrary, this Section 5 shall survive any\ntermination or expiration of this Agreement.\n(b) Recipient may from time to time provide suggestions, comments or other feedback (“Feedback”) to Company with respect to the\nConfidential Information. Both parties agree that all Feedback is and shall be given entirely voluntarily. Recipient shall not give Feedback that\nis subject to license terms that seek to require any Company product, technology, service or documentation incorporating or derived from such\nFeedback, or any Company intellectual property, to be licensed or otherwise shared with any third party. Recipient hereby acknowledges and\nagrees that all Feedback shall be deemed Confidential Information of Company, subject to the obligations of confidentiality and restricted use\nprovided under this Agreement. Furthermore, Recipient hereby acknowledges and agrees that Company shall have the exclusive right to use,\ndisclose, reproduce, license or otherwise distribute, and exploit the Feedback as Company sees fit, entirely without obligation or restriction of\nany kind on account of intellectual property rights or otherwise.\n6. Accuracy and Completeness of Confidential Information. The disclosure of any Confidential Information to Recipient shall be solely in\nCompany’s discretion. This Agreement shall not require Company to disclose any information or to require the consummation of any transaction in\nconnection with which the Confidential Information is disclosed. Notwithstanding anything to the contrary, Company shall not be deemed to have\nmade any representation or warranty to Recipient concerning the accuracy or completeness of any Confidential Information, except to the extent that\nsuch representation or warranty may be expressly set forth in a definitive written agreement concerning any subsequent business relationship.\n7. Independent Contractors. Neither this Agreement, nor any terms and conditions contained herein, will be construed as creating a partnership,\njoint venture, or agency relationship or as granting a franchise. The parties are independent contractors each acting for its own account, and neither is\nauthorized to make any commitment or representation, express or implied, on the other’s behalf.\n8. Remedies. Recipient acknowledges and agrees that Company would be irreparably harmed if any of the Confidential Information were to be\ndisclosed to third parties, or if any use were to be made of the Confidential Information other than that specified in this Agreement, and further\nagrees that Company shall have the right to seek and obtain injunctive relief upon any violation or threatened violation of the terms of this\nAgreement\n12\nwithout the necessity of posting bond or other security, in addition to all other rights and remedies available to Company at law or in equity. Any\ntrade secrets of the Company will be entitled to all of the protections and benefits under the applicable Uniform Trade Secrets Act and any other\napplicable law. If any information that Company deems to be a trade secret is found by a court of competent jurisdiction not to be a trade secret for\npurposes of this Agreement, such information nevertheless will be considered Confidential Information for purposes of this Agreement. Recipient\nhereby waives any requirement that the Company submit proof of the economic value of any trade secret.\n9. Indemnity. Recipient shall indemnify Company for and against all damages, losses, claims, costs (including reasonable attorneys’ fees),\nexpenses and liabilities, suffered or incurred as a direct or indirect result of Recipient failing (whether intentionally or not) to fully comply with its\ncovenants and obligations under this Agreement, including by virtue of any act of any Related Party.\n10. Entire Agreement. This Agreement sets forth the complete and exclusive understanding of the parties regarding the subject matter of this\nAgreement and supersedes all prior agreements, understandings, and communications, oral or written, between the parties regarding the subject\nmatter of this Agreement. This Agreement is not, however, intended to limit any rights that Company may have under trade secret, copyright, patent,\ntrademark or other laws that may apply to the subject matter of this Agreement both during and after the term of this Agreement.\n11. Amendments. No amendment or waiver of any term of this Agreement shall be effective unless such amendment or waiver is in writing\nand is signed by each of the parties hereto.\n12. Assignment. Recipient shall not assign or transfer, in whole or in part and whether by contract or operation of law, this Agreement, or any\nrights or obligations hereunder, without the prior written consent of Company. Subject to the foregoing, this Agreement shall be binding upon, and\nshall inure to the benefit of, the parties and their respective representatives, successors and assigns.\n13. Attorneys’ Fees. If any party shall commence any action or proceeding against the other in order to enforce the provisions of this\nAgreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing party therein shall be\nentitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the party who has breached this\nAgreement, as the case may be, including reasonable attorneys’ fees.\n14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, other than such\nlaws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Florida. Any suit to\nenforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in the United States District\nCourt for the District of Florida or the District Court in and for the city of Sarasota and the County of Sarasota, State of Florida. Each party hereby\nagrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party hereby submits to the in personam\njurisdiction and venue of such courts.\n15. Severability. If any provision of the Agreement shall be held by a court competent jurisdiction to be illegal, invalid or unenforceable, the\nparties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties’ intentions and the remaining\nprovisions shall remain in full force and effect.\n[SIGNATURE PAGE FOLLOWS]\n13\nThis Agreement has been executed as of the date first set forth above.\nSun Energy Solar, Inc.\nBy: /s/ R. Craig Hall\nTitle: President\nDate: June 29, 2006\nRecipient\nSignature: /s/ Carl L. Smith\nPrinted: Carl L. Smith\nDate:\nJune 29, 2006\n14
+41be0f16bf272881f9d0d687aa626ac6.pdf	effective_date jurisdiction party term	Exhibit 10.14\nEXHIBIT E\nNON-DISCLOSURE AGREEMENT\nEXHIBIT E TO LEASE\nThis NON-DISCLOSURE AGREEMENT (the “Agreement” is\nby and between LinkedIn; hereinafter “Company’), and the\nundersigned (hereinafter “Recipient”).\nWHEREAS, Recipient has requested information from Company\nin connection with consideration of a possible transaction or\nrelationship between Recipient and Company.\nWHEREAS, in the course of consideration of the possible\ntransaction or relationship, the Company may disclose to Recipient\nconfidential, important, and/or proprietary trade secret information\nconcerning the Company and its activities.\nTHEREFORE, the parties agree to enter into a confidential\nrelationship with respect to the disclosure by Company to Recipient of\ncertain information.\n1. Definitions. For purposes of this Agreement, “Confidential\nInformation” stall include all information or materiel that have or\ncould have commercial value or other utility in the business or\nprospective-business of Company or its subsidiaries or affiliates.\nConfidential Information also includes all information of which\nunauthorized disclosure could be detrimental to the Interests of\nCompany or its subsidiaries or affiliates whether or not such\ninformation is identified as Confidential Information by Company. By\nexample and without limitation, Confidential Information includes, but\nis not limited to, any and all information of the following or similar\nnature, whether or not reduced to writing: Customer lists, customer and\nsupplier identities and characteristics, agreements, marketing\nknowledge and information, sales figures, pricing information,\nmarketing plans and business plans, strategies, forecasts, financial\ninformation, budgets, software, research papers, projections,\nprocedures, routines, quality control and manufacturing procedures,\npatents, patent applications, processes, formulae, trade secrets,\ninnovations, inventions, discoveries, improvements, research or\ndevelopment and test results, specifications, data, know-how, formats,\nplans, sketches, specifications, drawings, models, and any other\ninformation or procedures that arc treated as or designated secret or\nconfidential by Company or its customers or potential customers. For\npurposes of thug Agreement, the term “Recipient” shall include\nRecipient, the company he or she represents, and alt affiliates,\nsubsidiaries, and related companies of Recipient. For purposes of this\nAgreement, the term “Representative” shall include Recipient’s\ndirectors, officers, employees, agents, and financial, legal, and other\nadvisers.\n2. Exclusions. Confidential Information does not include\ninformation that Recipient can demonstrate: (a) was in Recipient’s\npossession prior to its being furnished to Recipient\nunder the terms of this Agreement, provided the source of that\ninformation was not known by Recipient to be bound by a\nconfidentiality agreement with or other continual. legal or fiduciary\nobligation of confidentiality to Company; (b) is now, or hereafter\nbecomes, through no act or failure to act on the part of Recipient,\ngenerally known to the public; (c) is rightfully obtained by Recipient\nfrom a third party, without breach of any obligation to Company; or\n(d) is independently developed by Recipient Without use of or\nreference to the Confidential Information.\n3. Confidentiality. Recipient and its Representatives shall not\ndisclose any of the Confidential Information in any manner\nwhatsoever, except as provided in paragraphs 4 and 5 of this\nAgreement, and shall hold and maintain the Confidential Information\nin strictest confidence. Recipient hereby agrees to indemnify Company\nagainst any and all losses, damages, claims, expenses, and attorneys’\nfees incurred or suffered by Company as a result of a breach of this\nAgreement by Recipient or its Representatives.\n4. Permitted Disclosures. Recipient may disclose Company’s\nConfidential Information to Recipient’s responsible Representatives\nwith a bona fide need to know such Confidential Information, but only\nto the extent necessary to evaluate or carry out a proposed transaction\nor relationship with Company and only if such employees are advised\nof the confidential nature of such Confidential Information and the\nterms of this Agreement and are bound by a written agreement or by a\nlegally enforceable code of professional responsibility to protect the\nconfidentiality of such Confidential Information.\n5. Required Disclosures. Recipient may disclose Company’s\nConfidential Information if and to the extent that such disclosure is\nrequired by court order, provided that Recipient provides Company a\nreasonable opportunity to review the disclosure before it is made and to\ninterpose its own objection to the disclosure.\n6. Use. Recipient and its Representatives shall use the\nConfidential Information solely for the purpose of evaluating a possible\ntransaction or relationship with Company and shall not in any way use\nthe Confidential Information to the detriment of Company. Nothing in\nthis Agreement shall be construed as granting any rights to Recipient,\nby license or otherwise, to any of Company’s Confidential Information.\n7. Acquisition of Information. Recipient shall not initiate or\nmaintain contact, except for the contacts made in the ordinary courts of\nbusiness, with any director, officer, employee or agent of Company\nregarding its business,\nE-2\noperations, prospects, or finances, except with the written approval of\nCompany.\n8. Non-Solicitation of Company Employees. Recipient shall not,\nwithout the prior written approval of Company, hire or enter into a\ncontract with any employee, agent or representative of Company to\nprovide services to Recipient or, directly or indirectly, induce or\nattempt to induce or otherwise counsel, discuss, advise or encourage\nany employee, agent or representative of Company to leave or\notherwise terminate such Person’s relationship with Company for a\nperiod of twelve months following the date hereof.\n9. Confidentiality of Negotiations. Recipient and its\nRepresentatives shall not make any statement, public announcement,\nrelease to any trade publication or the press, or in form any third party\nof the discussions or negotiations m connection with the possible\nnegotiated transaction or the exchange of Confidential Information\nrelated to a possible transaction or relationship with Company.\nRecipient may make such a disclosure if it has received the written\nopinion of outside counsel that such disclosure must be made in order\nto avoid a violation of law and a copy of such opinion has been\nprovided to Company.\n10. Return of Documents. If Recipient does not proceed with the\npossible transaction with Company, Recipient shall notify Company of\nthat decision and shall, at that time or at any time upon the request of\nCompany for any reason, return to Company any and all records, notes,\nand other written, printed or other tangible materials in its possession\npertaining to the Confidential Information immediately on the written\nrequest of Company. The returning of materials shall not relieve\nRecipient from compliance with other terms and conditions of this\nAgreement.\n11. No Additional Agreements. Neither the holding of discussions\nnor the exchange of material or Information shell be construed as an\nobligation of Company to enter into any other agreement with\nRecipient or prohibit Company from providing the same or similar\nInformation to other parties and entering into agreements with other\nparties. Company reserves the right, in its sole discretion, to reject any\nand all proposals made by Recipient or its Representatives with regard\nto a transaction between Recipient and Company and to terminate\ndiscussions and negotiations with Recipient at any time. Additional\nagreements of the parties, if any, shall be in writing signed by\nCompany and Recipient.\n12. Irreparable Harm. Recipient understands and acknowledges\nthat any disclosure or misappropriation of any of the Confidential\nInformation in violation of this Agreement may cause Company\nirreparable harm, the amount of which may be difficult to ascertain,\nand therefore agrees that Company shall have the right to apply to a\ncourt of competent jurisdiction for specific performance and/or an\norder restraining and enjoining any such further disclosure or breach\nand for such other relief as Company shall deem appropriate. Such\nright of Company is to be in addition to the remedies\notherwise available to Company at law or in equity. Recipient\nexpressly waives the defense that a remedy in damages will be\nadequate and any requirement in an action for specific performance or\ninjunction for the posting of a bond by Company.\n13. Survival. This Agreement shall continue in full force and\neffect at all times.\n14. Successors and Assigns. This Agreement and each party’s\nobligations hereunder shall be binding on the representatives, assigns,\nand successors of such party and shell inure to the benefit of the\nassigns and successors of such party; provided, however, that the rights\nand obligations of Recipient hereunder are not assignable\n15. Governing Law. This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of California. The\nparties hereby irrevocably consent to the jurisdiction of the state and\nfederal courts located in Los Angeles, California, in any action arising\nout of or relating to this Agreement, and waive any other venue to\nwhich either party might be entitled by domicile or otherwise.\n16. Attorney’s Fees. It any action at law or in equity is brought to\nenforce or interpret the provisions of this Agreement, the prevailing\nparty in such action shall be awarded its attorneys’ fees and costs\nincurred.\n17. Counterparts and Right. This Agreement may be signed in\ncounterparts, which together shall constitute one agreement. The\nperson signing on behalf of Recipient represents that he or she has the\nright and power to execute this Agreement.\n18. Entire Agreement. This Agreement expresses the full and\ncomplete understanding of the parties with respect to the subject matter\nhereof and supersedes all prior or contemporaneous proposals,\nagreements, representations and understandings, ‘whether written or\noral, with respect to the subject matter. This Agreement is not,\nhowever, to limit any rights that Company may have under trade secret,\ncopyright, patent or other laws that may be available to Company. This\nAgreement may not be amended or modified except in writing signed\nby each of the parties to the Agreement. This Agreement shall be\nconstrued as to its fair meaning and not strictly for or against either\nparty. The headings hereof are descriptive only and not to be construed\nin interpreting the provisions hereof.\nDate: 1/25/07\nLinkedIn (“Company”)\nBy:\nTitle:\nSlough Estates USA Inc. (“Recipient”)\nBy:\nTitle: Jonathan Bergschneider\nSenior Vice President	Exhibit 10.14\nEXHIBIT E NON-DISCLOSURE AGREEMENT This NON-DISCLOSURE AGREEMENT (the “Agreement” is\nby and between LinkedIn; hereinafter “Company’), and the\nundersigned (hereinafter “Recipient”).\nWHEREAS, Recipient has requested information from Company\nin connection with consideration of a possible transaction or\nrelationship between Recipient and Company.\nWHEREAS, in the course of consideration of the possible\ntransaction or relationship, the Company may disclose to Recipient\nconfidential, important, and/or proprietary trade secret information\nconcerning the Company and its activities.\nTHEREFORE, the parties agree to enter into a confidential\nrelationship with respect to the disclosure by Company to Recipient of\ncertain information.\n1. Definitions. For purposes of this Agreement, “Confidential\nInformation” stall include all information or materiel that have or\ncould have commercial value or other utility in the business or\nprospective-business of Company or its subsidiaries or affiliates.\nConfidential Information also includes all information of which\nunauthorized disclosure could be detrimental to the Interests of\nCompany or its subsidiaries or affiliates whether or not such\ninformation is identified as Confidential Information by Company. By\nexample and without limitation, Confidential Information includes, but\nis not limited to, any and all information of the following or similar\nnature, whether or not reduced to writing: Customer lists, customer and\nsupplier identities and characteristics, agreements, marketing\nknowledge and information, sales figures, pricing information,\nmarketing plans and business plans, strategies, forecasts, financial\ninformation, budgets, software, research papers, projections,\nprocedures, routines, quality control and manufacturing procedures,\npatents, patent applications, processes, formulae, trade secrets,\ninnovations, inventions, discoveries, improvements, research or\ndevelopment and test results, specifications, data, know-how, formats,\nplans, sketches, specifications, drawings, models, and any other\ninformation or procedures that arc treated as or designated secret or\nconfidential by Company or its customers or potential customers. For\npurposes of thug Agreement, the term “Recipient” shall include\nRecipient, the company he or she represents, and alt affiliates,\nsubsidiaries, and related companies of Recipient. For purposes of this\nAgreement, the term “Representative” shall include Recipient’s\ndirectors, officers, employees, agents, and financial, legal, and other\nadvisers.\n2. Exclusions. Confidential Information does not include\ninformation that Recipient can demonstrate: (a) was in Recipient’s\npossession prior to its being furnished to Recipient\nunder the terms of this Agreement, provided the source of that\ninformation was not known by Recipient to be bound by a\nconfidentiality agreement with or other continual. legal or fiduciary\nobligation of confidentiality to Company; (b) is now, or hereafter\nbecomes, through no act or failure to act on the part of Recipient,\ngenerally known to the public; (c) is rightfully obtained by Recipient\nfrom a third party, without breach of any obligation to Company; or\n(d) is independently developed by Recipient Without use of or\nreference to the Confidential Information.\n3. Confidentiality. Recipient and its Representatives shall not\ndisclose any of the Confidential Information in any manner\nwhatsoever, except as provided in paragraphs 4 and 5 of this\nAgreement, and shall hold and maintain the Confidential Information\nin strictest confidence. Recipient hereby agrees to indemnify Company\nagainst any and all losses, damages, claims, expenses, and attorneys’\nfees incurred or suffered by Company as a result of a breach of this\nAgreement by Recipient or its Representatives.\n4. Permitted Disclosures. Recipient may disclose Company’s\nConfidential Information to Recipient’s responsible Representatives\nwith a bona fide need to know such Confidential Information, but only\nto the extent necessary to evaluate or carry out a proposed transaction\nor relationship with Company and only if such employees are advised\nof the confidential nature of such Confidential Information and the\nterms of this Agreement and are bound by a written agreement or by a\nlegally enforceable code of professional responsibility to protect the\nconfidentiality of such Confidential Information.\n5. Required Disclosures. Recipient may disclose Company’s\nConfidential Information if and to the extent that such disclosure is\nrequired by court order, provided that Recipient provides Company a\nreasonable opportunity to review the disclosure before it is made and to\ninterpose its own objection to the disclosure.\n6. Use. Recipient and its Representatives shall use the\nConfidential Information solely for the purpose of evaluating a possible\ntransaction or relationship with Company and shall not in any way use\nthe Confidential Information to the detriment of Company. Nothing in\nthis Agreement shall be construed as granting any rights to Recipient,\nby license or otherwise, to any of Company’s Confidential Information.\n7. Acquisition of Information. Recipient shall not initiate or\nmaintain contact, except for the contacts made in the ordinary courts of\nbusiness, with any director, officer, employee or agent of Company\nregarding its business,\nEXHIBIT E TO LEASE\foperations, prospects, or finances, except with the written approval of\nCompany.\nwithout the prior written approval of Company, hire or enter into a\ncontract with any employee, agent or representative of Company to\nprovide services to Recipient or, directly or indirectly, induce or\nattempt to induce or otherwise counsel, discuss, advise or encourage\nany employee, agent or representative of Company to leave or\notherwise terminate such Person’s relationship with Company for a\nperiod of twelve months following the date hereof.\n9. Confidentiality of Negotiations. Recipient and its\nRepresentatives shall not make any statement, public announcement,\nrelease to any trade publication or the press, or in form any third party\nof the discussions or negotiations m connection with the possible\nnegotiated transaction or the exchange of Confidential Information\nrelated to a possible transaction or relationship with Company.\nRecipient may make such a disclosure if it has received the written\nopinion of outside counsel that such disclosure must be made in order\nto avoid a violation of law and a copy of such opinion has been\nprovided to Company.\n \n10. Return of Documents. If Recipient does not proceed with the\npossible transaction with Company, Recipient shall notify Company of\nthat decision and shall, at that time or at any time upon the request of\nCompany for any reason, return to Company any and all records, notes,\nand other written, printed or other tangible materials in its possession\npertaining to the Confidential Information immediately on the written\nrequest of Company. The returning of materials shall not relieve\nRecipient from compliance with other terms and conditions of this\nAgreement.\n11. No Additional Agreements. Neither the holding of discussions\nnor the exchange of material or Information shell be construed as an\nobligation of Company to enter into any other agreement with\nRecipient or prohibit Company from providing the same or similar\nInformation to other parties and entering into agreements with other\nparties. Company reserves the right, in its sole discretion, to reject any\nand all proposals made by Recipient or its Representatives with regard\nto a transaction between Recipient and Company and to terminate\ndiscussions and negotiations with Recipient at any time. Additional\nagreements of the parties, if any, shall be in writing signed by\nCompany and Recipient.\n12. Irreparable Harm. Recipient understands and acknowledges\nthat any disclosure or misappropriation of any of the Confidential\nInformation in violation of this Agreement may cause Company\nirreparable harm, the amount of which may be difficult to ascertain,\nand therefore agrees that Company shall have the right to apply to a\ncourt of competent jurisdiction for specific performance and/or an\norder restraining and enjoining any such further disclosure or breach\nand for such other relief as Company shall deem appropriate. Such\nright of Company is to be in addition to the remedies\notherwise available to Company at law or in equity. Recipient\nexpressly waives the defense that a remedy in damages will be\nadequate and any requirement in an action for specific performance or\ninjunction for the posting of a bond by Company.\n13. Survival. This Agreement shall continue in full force and\neffect at all times.\n14. Successors and Assigns. This Agreement and each party’s\nobligations hereunder shall be binding on the representatives, assigns,\nand successors of such party and shell inure to the benefit of the\nassigns and successors of such party; provided, however, that the rights\nand obligations of Recipient hereunder are not assignable\n15. Governing Law. This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of California. The\nparties hereby irrevocably consent to the jurisdiction of the state and\nfederal courts located in Los Angeles, California, in any action arising\nout of or relating to this Agreement, and waive any other venue to\nwhich either party might be entitled by domicile or otherwise.\n16. Attorney’s Fees. It any action at law or in equity is brought to\nenforce or interpret the provisions of this Agreement, the prevailing\nparty in such action shall be awarded its attorneys’ fees and costs\nincurred.\n \n17. Counterparts and Right. This Agreement may be signed in\ncounterparts, which together shall constitute one agreement. The\nperson signing on behalf of Recipient represents that he or she has the\nright and power to execute this Agreement.\n18. Entire Agreement. This Agreement expresses the full and\ncomplete understanding of the parties with respect to the subject matter\nhereof and supersedes all prior or contemporaneous proposals,\nagreements, representations and understandings, ‘whether written or\noral, with respect to the subject matter. This Agreement is not,\nhowever, to limit any rights that Company may have under trade secret,\ncopyright, patent or other laws that may be available to Company. This\nAgreement may not be amended or modified except in writing signed\nby each of the parties to the Agreement. This Agreement shall be\nconstrued as to its fair meaning and not strictly for or against either\nparty. The headings hereof are descriptive only and not to be construed\nin interpreting the provisions hereof.\nDate: 1/25/07\nLinkedIn (“Company”)\nBy:\nTitle:\nSlough Estates USA Inc. (“Recipient”)\nBy:\nTitle: Jonathan Bergschneider\nSenior Vice President\nE-2	Exhibit 10.14\nEXHIBIT E\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (the "Agreement" is\nunder the terms of this Agreement, provided the source of that\nby and between LinkedIn; hereinafter "Company'), and the\ninformation was not known by Recipient to be bound by a\nundersigned (hereinafter "Recipient").\nconfidentiality agreement with or other continual. legal or fiduciary\nobligation of confidentiality to Company; (b) is now, or hereafter\nWHEREAS, Recipient has requested information from Company\nbecomes, through no act or failure to act on the part of Recipient,\nin connection with consideration of a possible transaction or\ngenerally known to the public; (c) is rightfully obtained by Recipient\nrelationship between Recipient and Company.\nfrom a third party, without breach of any obligation to Company; or\nWHEREAS, in the course of consideration of the possible\n(d) is independently developed by Recipient Without use of or\ntransaction or relationship, the Company may disclose to Recipient\nreference to the Confidential Information.\nconfidential, important, and/or proprietary trade secret information\n3. Confidentiality.. Recipient and its Representatives shall not\nconcerning the Company and its activities.\ndisclose any of the Confidential Information in any manner\nTHEREFORE, the parties agree to enter into a confidential\nwhatsoever, except as provided in paragraphs 4 and 5 of this\nrelationship with respect to the disclosure by Company to Recipient of\nAgreement, and shall hold and maintain the Confidential Information\ncertain information.\nin strictest confidence. Recipient hereby agrees to indemnify Company\nagainst any and all losses, damages, claims, expenses, and attorneys'\n1. Definitions. For purposes of this Agreement, "Confidential\nfees incurred or suffered by Company as a result of a breach of this\nInformation" stall include all information or materiel that have or\nAgreement by Recipient or its Representatives.\ncould have commercial value or other utility in the business or\nprospective-business of Company or its subsidiaries or affiliates.\n4. Permitted Disclosures. Recipient may disclose Company's\nConfidential Information also includes all information of which\nConfidential Information to Recipient's responsible Representatives\nunauthorized disclosure could be detrimental to the Interests of\nwith a bona fide need to know such Confidential Information, but only\nCompany or its subsidiaries or affiliates whether or not such\nto the extent necessary to evaluate or carry out a proposed transaction\ninformation is identified as Confidential Information by Company. By\nor relationship with Company and only if such employees are advised\nexample and without limitation, Confidential Information includes, but\nof the confidential nature of such Confidential Information and the\nis not limited to, any and all information of the following or similar\nterms of this Agreement and are bound by a written agreement or by a\nnature, whether or not reduced to writing: Customer lists, customer and\nlegally enforceable code of professional responsibility to protect the\nsupplier identities and characteristics, agreements, marketing\nconfidentiality of such Confidential Information.\nknowledge and information, sales figures, pricing information,\n5. Required Disclosures. Recipient may disclose Company's\nmarketing plans and business plans, strategies, forecasts, financial\nConfidential Information if and to the extent that such disclosure is\ninformation, budgets, software, research papers, projections,\nrequired by court order, provided that Recipient provides Company a\nprocedures, routines, quality control and manufacturing procedures,\nreasonable opportunity to review the disclosure before it is made and to\npatents, patent applications, processes, formulae, trade secrets,\ninterpose its own objection to the disclosure.\ninnovations, inventions, discoveries, improvements, research or\ndevelopment and test results, specifications, data, know-how, formats,\n6. Use. Recipient and its Representatives shall use the\nplans, sketches, specifications, drawings, models, and any other\nConfidential Information solely for the purpose of evaluating a possible\ninformation or procedures that arc treated as or designated secret or\ntransaction or relationship with Company and shall not in any way use\nconfidential by Company or its customers or potential customers. For\nthe Confidential Information to the detriment of Company. Nothing in\npurposes of thug Agreement, the term "Recipient" shall include\nthis Agreement shall be construed as granting any rights to Recipient,\nRecipient, the company he or she represents, and alt affiliates,\nby license or otherwise, to any of Company's Confidential Information.\nsubsidiaries, and related companies of Recipient For purposes of this\nAgreement, the term "Representative" shall include Recipient's\n7. Acquisition of Information. Recipient shall not initiate or\ndirectors, officers, employees, agents, and financial, legal, and other\nmaintain contact, except for the contacts made in the ordinary courts of\nadvisers.\nbusiness, with any director, officer, employee or agent of Company\nregarding its business,\n2. Exclusions. Confidential Information does not include\ninformation that Recipient can demonstrate: (a) was in Recipient's\npossession prior to its being furnished to Recipient\nEXHIBIT] TO LEASE\noperations, prospects, or finances, except with the written approval of\notherwise available to Company at law or in equity. Recipient\nCompany.\nexpressly waives the defense that a remedy in damages will be\nadequate and any requirement in an action for specific performance or\n8. Non-Solicitation of Company. Employees. Recipient shall not,\ninjunction for the posting of a bond by Company.\nwithout the prior written approval of Company, hire or enter into a\ncontract with any employee, agent or representative of Company to\n13. Survival. This Agreement shall continue in full force and\nprovide services to Recipient or, directly or indirectly, induce or\neffect at all times.\nattempt to induce or otherwise counsel, discuss, advise or encourage\nany employee, agent or representative of Company to leave or\n14. Successors and Assigns. This Agreement and each party's\notherwise terminate such Person's relationship with Company for a\nobligations hereunder shall be binding on the representatives, assigns,\nperiod of twelve months following the date hereof.\nand successors of such party and shell inure to the benefit of the\nassigns and successors of such party; provided, however, that the rights\n9. Confidentiality. of Negotiations. Recipient and its\nand obligations of Recipient hereunder are not assignable\nRepresentatives shall not make any statement, public announcement,\nrelease to any trade publication or the press, or in form any third party\n15. Governing Law. This Agreement shall be governed by and\nof the discussions or negotiations m connection with the possible\nconstrued in accordance with the laws of the State of California. The\nnegotiated transaction or the exchange of Confidential Information\nparties hereby irrevocably consent to the jurisdiction of the state and\nrelated to a possible transaction or relationship with Company.\nfederal courts located in Los Angeles, California, in any action arising\nRecipient may make such a disclosure if it has received the written\nout of or relating to this Agreement, and waive any other venue to\nopinion of outside counsel that such disclosure must be made in order\nwhich either party might be entitled by domicile or otherwise.\nto avoid a violation of law and a copy of such opinion has been\nprovided to Company.\n16. Attorney's Fees. It any action at law or in equity is brought to\nenforce or interpret the provisions of this Agreement, the prevailing\n10. Return of Documents. If Recipient does not proceed with the\nparty in such action shall be awarded its attorneys' fees and costs\npossible transaction with Company, Recipient shall notify Company of\nincurred.\nthat decision and shall, at that time or at any time upon the request of\nCompany for any reason, return to Company any and all records, notes,\n17 Counterparts and Right. This Agreement may be signed in\nand other written, printed or other tangible materials in its possession\ncounterparts, which together shall constitute one agreement. The\npertaining to the Confidential Information immediately on the written\nperson signing on behalf of Recipient represents that he or she has the\nrequest of Company. The returning of materials shall not relieve\nright and power to execute this Agreement.\nRecipient from compliance with other terms and conditions of this\n18. Entire Agreement. This Agreement expresses the full and\nAgreement.\ncomplete understanding of the parties with respect to the subject matter\n11. No Additional Agreements. Neither the holding of discussions\nhereof and supersedes all prior or contemporaneous proposals,\nnor the exchange of material or Information shell be construed as an\nagreements, representations and understandings, 'whether written or\nobligation of Company to enter into any other agreement with\noral, with respect to the subject matter. This Agreement is not,\nRecipient or prohibit Company from providing the same or similar\nhowever, to limit any rights that Company may have under trade secret,\nInformation to other parties and entering into agreements with other\ncopyright, patent or other laws that may be available to Company. This\nparties. Company reserves the right, in its sole discretion, to reject any\nAgreement may not be amended or modified except in writing signed\nand all proposals made by Recipient or its Representatives with regard\nby each of the parties to the Agreement. This Agreement shall be\nto a transaction between Recipient and Company and to terminate\nconstrued as to its fair meaning and not strictly for or against either\ndiscussions and negotiations with Recipient at any time. Additional\nparty. The headings hereof are descriptive only and not to be construed\nagreements of the parties, if any, shall be in writing signed by\nin interpreting the provisions hereof.\nCompany and Recipient.\nDate: 1/25/07\n12. Irreparable Harm. Recipient understands and acknowledges\nthat any disclosure or misappropriation of any of the Confidential\nLinkedIn ("Company")\nInformation in violation of this Agreement may cause Company\nBy:\nirreparable harm, the amount of which may be difficult to ascertain,\nand therefore agrees that Company shall have the right to apply to a\nTitle:\ncourt of competent jurisdiction for specific performance and/or an\norder restraining and enjoining any such further disclosure or breach\nSlough Estates USA Inc. ("Recipient")\nand for such other relief as Company shall deem appropriate. Such\nright of Company is to be in addition to the remedies\nBy:\nTitle: Jonathan Bergschneider\nSenior Vice President\nE-2	Exhibit 10.14\nEXHIBIT E\nNON-DISCLOSURE AGREEMENT\nEXHIBIT E TO LEASE\nThis NON-DISCLOSURE AGREEMENT (the “Agreement” is\nby and between LinkedIn; hereinafter “Company’), and the\nundersigned (hereinafter “Recipient”).\nWHEREAS, Recipient has requested information from Company\nin connection with consideration of a possible transaction or\nrelationship between Recipient and Company.\nWHEREAS, in the course of consideration of the possible\ntransaction or relationship, the Company may disclose to Recipient\nconfidential, important, and/or proprietary trade secret information\nconcerning the Company and its activities.\nTHEREFORE, the parties agree to enter into a confidential\nrelationship with respect to the disclosure by Company to Recipient of\ncertain information.\n1. Definitions. For purposes of this Agreement, “Confidential\nInformation” stall include all information or materiel that have or\ncould have commercial value or other utility in the business or\nprospective-business of Company or its subsidiaries or affiliates.\nConfidential Information also includes all information of which\nunauthorized disclosure could be detrimental to the Interests of\nCompany or its subsidiaries or affiliates whether or not such\ninformation is identified as Confidential Information by Company. By\nexample and without limitation, Confidential Information includes, but\nis not limited to, any and all information of the following or similar\nnature, whether or not reduced to writing: Customer lists, customer and\nsupplier identities and characteristics, agreements, marketing\nknowledge and information, sales figures, pricing information,\nmarketing plans and business plans, strategies, forecasts, financial\ninformation, budgets, software, research papers, projections,\nprocedures, routines, quality control and manufacturing procedures,\npatents, patent applications, processes, formulae, trade secrets,\ninnovations, inventions, discoveries, improvements, research or\ndevelopment and test results, specifications, data, know-how, formats,\nplans, sketches, specifications, drawings, models, and any other\ninformation or procedures that arc treated as or designated secret or\nconfidential by Company or its customers or potential customers. For\npurposes of thug Agreement, the term “Recipient” shall include\nRecipient, the company he or she represents, and alt affiliates,\nsubsidiaries, and related companies of Recipient. For purposes of this\nAgreement, the term “Representative” shall include Recipient’s\ndirectors, officers, employees, agents, and financial, legal, and other\nadvisers.\n2. Exclusions. Confidential Information does not include\ninformation that Recipient can demonstrate: (a) was in Recipient’s\npossession prior to its being furnished to Recipient\nunder the terms of this Agreement, provided the source of that\ninformation was not known by Recipient to be bound by a\nconfidentiality agreement with or other continual. legal or fiduciary\nobligation of confidentiality to Company; (b) is now, or hereafter\nbecomes, through no act or failure to act on the part of Recipient,\ngenerally known to the public; (c) is rightfully obtained by Recipient\nfrom a third party, without breach of any obligation to Company; or\n(d) is independently developed by Recipient Without use of or\nreference to the Confidential Information.\n3. Confidentiality. Recipient and its Representatives shall not\ndisclose any of the Confidential Information in any manner\nwhatsoever, except as provided in paragraphs 4 and 5 of this\nAgreement, and shall hold and maintain the Confidential Information\nin strictest confidence. Recipient hereby agrees to indemnify Company\nagainst any and all losses, damages, claims, expenses, and attorneys’\nfees incurred or suffered by Company as a result of a breach of this\nAgreement by Recipient or its Representatives.\n4. Permitted Disclosures. Recipient may disclose Company’s\nConfidential Information to Recipient’s responsible Representatives\nwith a bona fide need to know such Confidential Information, but only\nto the extent necessary to evaluate or carry out a proposed transaction\nor relationship with Company and only if such employees are advised\nof the confidential nature of such Confidential Information and the\nterms of this Agreement and are bound by a written agreement or by a\nlegally enforceable code of professional responsibility to protect the\nconfidentiality of such Confidential Information.\n5. Required Disclosures. Recipient may disclose Company’s\nConfidential Information if and to the extent that such disclosure is\nrequired by court order, provided that Recipient provides Company a\nreasonable opportunity to review the disclosure before it is made and to\ninterpose its own objection to the disclosure.\n6. Use. Recipient and its Representatives shall use the\nConfidential Information solely for the purpose of evaluating a possible\ntransaction or relationship with Company and shall not in any way use\nthe Confidential Information to the detriment of Company. Nothing in\nthis Agreement shall be construed as granting any rights to Recipient,\nby license or otherwise, to any of Company’s Confidential Information.\n7. Acquisition of Information. Recipient shall not initiate or\nmaintain contact, except for the contacts made in the ordinary courts of\nbusiness, with any director, officer, employee or agent of Company\nregarding its business,\nE-2\noperations, prospects, or finances, except with the written approval of\nCompany.\n8. Non-Solicitation of Company Employees. Recipient shall not,\nwithout the prior written approval of Company, hire or enter into a\ncontract with any employee, agent or representative of Company to\nprovide services to Recipient or, directly or indirectly, induce or\nattempt to induce or otherwise counsel, discuss, advise or encourage\nany employee, agent or representative of Company to leave or\notherwise terminate such Person’s relationship with Company for a\nperiod of twelve months following the date hereof.\n9. Confidentiality of Negotiations. Recipient and its\nRepresentatives shall not make any statement, public announcement,\nrelease to any trade publication or the press, or in form any third party\nof the discussions or negotiations m connection with the possible\nnegotiated transaction or the exchange of Confidential Information\nrelated to a possible transaction or relationship with Company.\nRecipient may make such a disclosure if it has received the written\nopinion of outside counsel that such disclosure must be made in order\nto avoid a violation of law and a copy of such opinion has been\nprovided to Company.\n10. Return of Documents. If Recipient does not proceed with the\npossible transaction with Company, Recipient shall notify Company of\nthat decision and shall, at that time or at any time upon the request of\nCompany for any reason, return to Company any and all records, notes,\nand other written, printed or other tangible materials in its possession\npertaining to the Confidential Information immediately on the written\nrequest of Company. The returning of materials shall not relieve\nRecipient from compliance with other terms and conditions of this\nAgreement.\n11. No Additional Agreements. Neither the holding of discussions\nnor the exchange of material or Information shell be construed as an\nobligation of Company to enter into any other agreement with\nRecipient or prohibit Company from providing the same or similar\nInformation to other parties and entering into agreements with other\nparties. Company reserves the right, in its sole discretion, to reject any\nand all proposals made by Recipient or its Representatives with regard\nto a transaction between Recipient and Company and to terminate\ndiscussions and negotiations with Recipient at any time. Additional\nagreements of the parties, if any, shall be in writing signed by\nCompany and Recipient.\n12. Irreparable Harm. Recipient understands and acknowledges\nthat any disclosure or misappropriation of any of the Confidential\nInformation in violation of this Agreement may cause Company\nirreparable harm, the amount of which may be difficult to ascertain,\nand therefore agrees that Company shall have the right to apply to a\ncourt of competent jurisdiction for specific performance and/or an\norder restraining and enjoining any such further disclosure or breach\nand for such other relief as Company shall deem appropriate. Such\nright of Company is to be in addition to the remedies\notherwise available to Company at law or in equity. Recipient\nexpressly waives the defense that a remedy in damages will be\nadequate and any requirement in an action for specific performance or\ninjunction for the posting of a bond by Company.\n13. Survival. This Agreement shall continue in full force and\neffect at all times.\n14. Successors and Assigns. This Agreement and each party’s\nobligations hereunder shall be binding on the representatives, assigns,\nand successors of such party and shell inure to the benefit of the\nassigns and successors of such party; provided, however, that the rights\nand obligations of Recipient hereunder are not assignable\n15. Governing Law. This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of California. The\nparties hereby irrevocably consent to the jurisdiction of the state and\nfederal courts located in Los Angeles, California, in any action arising\nout of or relating to this Agreement, and waive any other venue to\nwhich either party might be entitled by domicile or otherwise.\n16. Attorney’s Fees. It any action at law or in equity is brought to\nenforce or interpret the provisions of this Agreement, the prevailing\nparty in such action shall be awarded its attorneys’ fees and costs\nincurred.\n17. Counterparts and Right. This Agreement may be signed in\ncounterparts, which together shall constitute one agreement. The\nperson signing on behalf of Recipient represents that he or she has the\nright and power to execute this Agreement.\n18. Entire Agreement. This Agreement expresses the full and\ncomplete understanding of the parties with respect to the subject matter\nhereof and supersedes all prior or contemporaneous proposals,\nagreements, representations and understandings, ‘whether written or\noral, with respect to the subject matter. This Agreement is not,\nhowever, to limit any rights that Company may have under trade secret,\ncopyright, patent or other laws that may be available to Company. This\nAgreement may not be amended or modified except in writing signed\nby each of the parties to the Agreement. This Agreement shall be\nconstrued as to its fair meaning and not strictly for or against either\nparty. The headings hereof are descriptive only and not to be construed\nin interpreting the provisions hereof.\nDate: 1/25/07\nLinkedIn (“Company”)\nBy:\nTitle:\nSlough Estates USA Inc. (“Recipient”)\nBy:\nTitle: Jonathan Bergschneider\nSenior Vice President
+43d3dc5cb6a256038d7cc7542f0d9017.pdf	effective_date jurisdiction party term	EX-10.10 11 dex1010.htm FORM OF CONFIDENTIALITY AGREEMENT\nExhibit 10.10\nFORM OF CONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (“Agreement”) is made as of the\nday of\n,\nby and among Circuit City Stores, Inc.,\n(“Circuit City”) a Virginia corporation and CarMax, Inc., a Virginia corporation (“CarMax”), either Circuit City or CarMax as a “Party” or\ncollectively, as the “Parties”.\nINTRODUCTION\nA. Circuit City and CarMax have executed a Separation Agreement dated as of (the “Separation Agreement”), pursuant to which CarMax and\nthe CarMax Subsidiaries separated from Circuit City and the Circuit City Subsidiaries (the “Spin-off”). For purposes of this Agreement, Circuit City\nand the Circuit City Subsidiaries collectively, or CarMax and the CarMax Subsidiaries collectively, shall each be referred to as a “Party”.\nB. Prior to the Spin-off, CarMax existed as part of Circuit City, resulting in the sharing and consolidation of Confidential Information (as\ndefined below).\nC. As a result of the historical co-mingling of Circuit City and CarMax information prior to the Spin-off, there are paper records, localized\nelectronic records (stored on individual PC’s or discs) or information stored in other media containing Confidential Information of the other Party.\nD. Further, pursuant to the Separation Agreement, Circuit City will provide certain transition services to CarMax following the Spin-off\npursuant to Transition Services Agreement between Circuit City and CarMax. As a result, certain Circuit City employees will have access to\nCarMax’s Confidential Information.\nE. The Parties agree that full segregation of all co-mingled Confidential Information that pre-dates the Spin-off is not practical and that the\ndisclosure of Confidential Information during the provision of services pursuant to the Transition Services Agreement or other Ancillary Agreements\nmay be unavoidable.\nNOW, THEREFORE, in consideration of the joint nature of the disclosure and the business relationship between the parties, it is hereby agreed\nas follows:\n1. Definition. For purposes of this Agreement, the term “Confidential Information” shall mean proprietary and confidential business\ninformation obtained by either Party at any time including, without limitation, the following:\n(a) Any trade secret, know-how, invention, software program, application, documentation, schematic, procedure, contract, information,\nknowledge, data, process, technique, design, drawing, program, formula or test data, work in progress, engineering, manufacturing, marketing,\nfinancial, sales, supplier, customer, employee, investor, or business information, whether in oral, written, graphic or electronic form;\n(b) Any non-public business information, including, without limitation, personnel data; correspondence with governmental agencies;\nhistorical customer information and data; historical cost information such as budgets and operating expenses and capital costs; and projected\ncapital additions and operating cost information;\n(c) Any document, diagram, photograph, drawing, computer program or other communication that is either conspicuously marked\n“confidential”, or is known or reasonably should have been known by the Party in possession to be confidential; and\n(d) Any advice, information, exhibits, documentation or any other information that a Party reasonably expects would be protected by\nattorney-client privilege or work product doctrine or other applicable privileges.\n2. Prohibition of Use. Circuit City acknowledges that it is authorized to access and use the Confidential Information of CarMax for the sole\npurpose of performing the services it is contractually bound to provide to such parties, specifically with respect to carrying out its obligations under\nthe Transition Services Agreement and other agreements related to the Separation Agreement. Otherwise, each of the Parties agrees that, with respect\nto the Confidential Information of the other Party, it will not (i) take any affirmative action to access such Confidential Information; (ii) directly or\nindirectly utilize any such Confidential Information in its business; (ii) manufacture and/or sell any product or provide any service that is based in\nwhole or in part on such Confidential Information; (iii) copy or modify such Confidential Information, or any copy or portion thereof; or (iv)\ndisclose such Confidential Information to any third party.\n3. Prior Disclosures. Prior to the Separation Agreement, Circuit City and CarMax may have exchanged information within their\nconsolidated corporate structure without restriction. Such information supplied to one Party by the other prior to the execution of this Agreement\nshall nonetheless be considered Confidential Information (except as specifically excluded pursuant to Section 5 below) for the purposes of this\nAgreement and shall be subject to the terms and conditions hereof.\n4. Specific Restriction Regarding Waiver of Attorney-Client Privilege or Work Product Doctrine. Prior to any action by the either Party\nthat could reasonably be expected to lead to or that would constitute waiver of attorney-client privilege or work product doctrine, the Party\ndisclosing the information must give prior notice to the other Party as soon as possible.\n2\n5. Nonprotected Information. The Parties agree that their mutual covenants with respect to each other’s Confidential Information shall not\napply to any information, data or other materials imparted to the extent that any of the following conditions apply:\n(a) The information is, or any time hereafter becomes, available to the public or contained in a filing to a government agency without\nbreach of this Agreement by the receiving Party;\n(b) The information is obtained by the recipient from any other person, firm or company having no obligation to or relationship with the\ndisclosing Party;\n(c) The information is developed by or for recipient independently of information received from one or more of the Parties hereto; or\n(d) The information is more than ten (10) years old.\n6. Court-Ordered Disclosure. No Party hereto shall be liable for disclosure of Confidential Information of the other Party if made in\nresponse to a valid order of a court or authorized agency of government; provided, however that five (5) days’ notice first be given to the other Party\nso a protective order, if appropriate, and may be sought by such Party with the cooperation of the other Party.\n7. Disclosure of Confidentiality Agreement Terms. Notwithstanding any other provisions hereof, the terms of this Agreement shall not be\ndeemed to be the Confidential Information of any Party hereto, and each Party shall have the right to disclose the terms hereof to third parties in its\nown discretion.\n8. No Conveyance or License. Nothing in this Agreement shall be construed to convey to the recipient of Confidential Information any\nright, title, interest or copyright in any Confidential Information, or any license to use, sell, exploit, copy or further develop any such Confidential\nInformation. This Agreement does not in any way bind the Parties to enter into a business relationship of any type with each other.\n9. Injunctive Relief. The Parties agree that a breach by either Party of this Agreement with respect to the Confidential Information of the\nother Party to this Agreement will cause irreparable damages to the other Party (the “Non-Breaching Party”) for which recovery of money damages\nwould be inadequate, and that the Non-Breaching Party shall, therefore, be entitled to obtain timely injunctive relief to protect its rights under this\nAgreement in addition to any and all remedies available at law without the need to post a bond or other undertaking.\n3\n10. Governing Law and Choice of Forum. This Agreement has been made under and shall be governed by, interpreted and enforced in\naccordance with the laws of the Commonwealth of Virginia without regard to the conflict of laws rules thereof. All disputes hereunder shall be\nresolved in the applicable state or Federal courts of Virginia. The parties consent to the jurisdiction of such courts, agree to accept service of process\nby mail, and waive any jurisdictional or venue defenses otherwise available.\n11. Agreement Binding on Successors. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, and their\nheirs, administrators, successors and assigns.\n12. Waiver. The failure of either Party at any time or times to demand strict performance by the other Party of the terms, covenants, or\nconditions set forth in this Agreement shall not be construed as a continuing waiver or relinquishment thereof, and either Party may at any time\ndemand strict and complete performance of such terms, covenants, and conditions.\n13. Assignability. This Agreement is personal to both Parties and may not be assigned by any act of either Party or by operation of law\nunless in connection with a transfer of substantially all the assets of such Party as a transfer to its affiliate.\n14. Severability. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect\nthe validity or operation of any other provision, and such invalid provision shall be deemed to be severed from the Agreement.\n15. Significance of Headings. Paragraph headings contained herein are solely for the purpose of aiding in speedy location of subject matter\nand are not in any sense to be used in the construction of this Agreement. Accordingly, in case of any questions with respect to the construction of\nthis Agreement, it is to be construed as though paragraph headings had been omitted.\n16. Integration. This Agreement constitutes the final, exclusive, and complete expression of the agreement of the Parties hereto, and it\nembodies all of the terms and conditions of the Agreement between the Parties with respect to the subject matter hereof. This Agreement is expressly\nintended to replace and supersede all prior and contemporaneous agreements, proposals, negotiations, representations, and warranties, if any,\nbetween the Parties whether oral or written with respect to the subject matter hereof. There are no agreements, representations, or warranties that\nhave not been included in this Agreement with respect to the subject matter hereof. It represents the result of arms length negotiation between the\nParties and shall be interpreted and construed without regard to any presumption or other rule requiring construction against either Party.\n4\n17. Amendments. This Agreement shall not be modified or amended except in writing signed by the parties hereto and specifically referring\nto this Agreement.\n18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of\nwhich together will constitute one and the same instrument.\n*\n*\n*\n*\n*\n[REMAINDER OF PAGE INTENTIONALLY BLANK]\n5\nIN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the latest date set forth below.\nCircuit City Stores, Inc.\nCarMax Inc.\nBy:\nBy:\nTitle:\nTitle:\nDate:\nDate:\n6	EX-10.10 11 dex1010.htm FORM OF CONFIDENTIALITY AGREEMENT\nExhibit 10.10\nFORM OF CONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (“Agreement”) is made as of the day of s by and among Circuit City Stores, Inc.,\n(“Circuit City”) a Virginia corporation and CarMax, Inc., a Virginia corporation (“CarMax”), either Circuit City or CarMax as a “Party” or\ncollectively, as the “Parties”.\nINTRODUCTION\nA. Circuit City and CarMax have executed a Separation Agreement dated as of (the “Separation Agreement”), pursuant to which CarMax and\nthe CarMax Subsidiaries separated from Circuit City and the Circuit City Subsidiaries (the “Spin-off”). For purposes of this Agreement, Circuit City\nand the Circuit City Subsidiaries collectively, or CarMax and the CarMax Subsidiaries collectively, shall each be referred to as a “Party”.\nB. Prior to the Spin-off, CarMax existed as part of Circuit City, resulting in the sharing and consolidation of Confidential Information (as\ndefined below).\nC. As aresult of the historical co-mingling of Circuit City and CarMax information prior to the Spin-off, there are paper records, localized\nelectronic records (stored on individual PC’s or discs) or information stored in other media containing Confidential Information of the other Party.\nD. Further, pursuant to the Separation Agreement, Circuit City will provide certain transition services to CarMax following the Spin-off\npursuant to Transition Services Agreement between Circuit City and CarMax. As a result, certain Circuit City employees will have access to\nCarMax’s Confidential Information.\nE. The Parties agree that full segregation of all co-mingled Confidential Information that pre-dates the Spin-off is not practical and that the\ndisclosure of Confidential Information during the provision of services pursuant to the Transition Services Agreement or other Ancillary Agreements\nmay be unavoidable.\nNOW, THEREFORE, in consideration of the joint nature of the disclosure and the business relationship between the parties, it is hereby agreed\nas follows:\n1. Definition. For purposes of this Agreement, the term “Confidential Information” shall mean proprietary and confidential business\ninformation obtained by either Party at any time including, without limitation, the following:\n(a) Any trade secret, know-how, invention, software program, application, documentation, schematic, procedure, contract, information,\nknowledge, data, process, technique, design, drawing, program, formula or test data, work in progress, engineering, manufacturing, marketing,\nfinancial, sales, supplier, customer, employee, investor, or business information, whether in oral, written, graphic or electronic form;\n(b) Any non-public business information, including, without limitation, personnel data; correspondence with governmental agencies;\nhistorical customer information and data; historical cost information such as budgets and operating expenses and capital costs; and projected\ncapital additions and operating cost information;\n(c) Any document, diagram, photograph, drawing, computer program or other communication that is either conspicuously marked\n“confidential”, or is known or reasonably should have been known by the Party in possession to be confidential; and\n(d) Any advice, information, exhibits, documentation or any other information that a Party reasonably expects would be protected by\nattorney-client privilege or work product doctrine or other applicable privileges.\n2. Prohibition of Use. Circuit City acknowledges that it is authorized to access and use the Confidential Information of CarMax for the sole\npurpose of performing the services it is contractually bound to provide to such parties, specifically with respect to carrying out its obligations under\nthe Transition Services Agreement and other agreements related to the Separation Agreement. Otherwise, each of the Parties agrees that, with respect\nto the Confidential Information of the other Party, it will not (i) take any affirmative action to access such Confidential Information; (ii) directly or\nindirectly utilize any such Confidential Information in its business; (ii) manufacture and/or sell any product or provide any service that is based in\nwhole or in part on such Confidential Information; (iii) copy or modify such Confidential Information, or any copy or portion thereof; or (iv)\ndisclose such Confidential Information to any third party.\n3. Prior Disclosures. Prior to the Separation Agreement, Circuit City and CarMax may have exchanged information within their\nconsolidated corporate structure without restriction. Such information supplied to one Party by the other prior to the execution of this Agreement\nshall nonetheless be considered Confidential Information (except as specifically excluded pursuant to Section 5 below) for the purposes of this\nAgreement and shall be subject to the terms and conditions hereof.\n4. Specific Restriction Regarding Waiver of Attorney-Client Privilege or Work Product Doctrine. Prior to any action by the either Party\nthat could reasonably be expected to lead to or that would constitute waiver of attorney-client privilege or work product doctrine, the Party\ndisclosing the information must give prior notice to the other Party as soon as possible.\n2\n5. Nonprotected Information. The Parties agree that their mutual covenants with respect to each other’s Confidential Information shall not\napply to any information, data or other materials imparted to the extent that any of the following conditions apply:\n(a) The information is, or any time hereafter becomes, available to the public or contained in a filing to a government agency without\nbreach of this Agreement by the receiving Party;\n(b) The information is obtained by the recipient from any other person, firm or company having no obligation to or relationship with the\ndisclosing Party;\n(c) The information is developed by or for recipient independently of information received from one or more of the Parties hereto; or\n(d) The information is more than ten (10) years old.\n6. Court-Ordered Disclosure. No Party hereto shall be liable for disclosure of Confidential Information of the other Party if made in\nresponse to a valid order of a court or authorized agency of government; provided, however that five (5) days’ notice first be given to the other Party\nso a protective order, if appropriate, and may be sought by such Party with the cooperation of the other Party.\n7. Disclosure of Confidentiality Agreement Terms. Notwithstanding any other provisions hereof, the terms of this Agreement shall not be\ndeemed to be the Confidential Information of any Party hereto, and each Party shall have the right to disclose the terms hereof to third parties in its\nown discretion.\n8. No Conveyance or License. Nothing in this Agreement shall be construed to convey to the recipient of Confidential Information any\nright, title, interest or copyright in any Confidential Information, or any license to use, sell, exploit, copy or further develop any such Confidential\nInformation. This Agreement does not in any way bind the Parties to enter into a business relationship of any type with each other.\n9. Injunctive Relief. The Parties agree that a breach by either Party of this Agreement with respect to the Confidential Information of the\nother Party to this Agreement will cause irreparable damages to the other Party (the “Non-Breaching Party”) for which recovery of money damages\nwould be inadequate, and that the Non-Breaching Party shall, therefore, be entitled to obtain timely injunctive relief to protect its rights under this\nAgreement in addition to any and all remedies available at law without the need to post a bond or other undertaking.\n3\n10. Governing Law and Choice of Forum. This Agreement has been made under and shall be governed by, interpreted and enforced in\naccordance with the laws of the Commonwealth of Virginia without regard to the conflict of laws rules thereof. All disputes hereunder shall be\nresolved in the applicable state or Federal courts of Virginia. The parties consent to the jurisdiction of such courts, agree to accept service of process\nby mail, and waive any jurisdictional or venue defenses otherwise available.\n11. Agreement Binding on Successors. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, and their\nheirs, administrators, successors and assigns.\n12. Waiver. The failure of either Party at any time or times to demand strict performance by the other Party of the terms, covenants, or\nconditions set forth in this Agreement shall not be construed as a continuing waiver or relinquishment thereof, and either Party may at any time\ndemand strict and complete performance of such terms, covenants, and conditions.\n13. Assignability. This Agreement is personal to both Parties and may not be assigned by any act of either Party or by operation of law\nunless in connection with a transfer of substantially all the assets of such Party as a transfer to its affiliate.\n14. Severability. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect\nthe validity or operation of any other provision, and such invalid provision shall be deemed to be severed from the Agreement.\n15. Significance of Headings. Paragraph headings contained herein are solely for the purpose of aiding in speedy location of subject matter\nand are not in any sense to be used in the construction of this Agreement. Accordingly, in case of any questions with respect to the construction of\nthis Agreement, it is to be construed as though paragraph headings had been omitted.\n16. Integration. This Agreement constitutes the final, exclusive, and complete expression of the agreement of the Parties hereto, and it\nembodies all of the terms and conditions of the Agreement between the Parties with respect to the subject matter hereof. This Agreement is expressly\nintended to replace and supersede all prior and contemporaneous agreements, proposals, negotiations, representations, and warranties, if any,\nbetween the Parties whether oral or written with respect to the subject matter hereof. There are no agreements, representations, or warranties that\nhave not been included in this Agreement with respect to the subject matter hereof. It represents the result of arms length negotiation between the\nParties and shall be interpreted and construed without regard to any presumption or other rule requiring construction against either Party.\n4\n17. Amendments. This Agreement shall not be modified or amended except in writing signed by the parties hereto and specifically referring\nto this Agreement.\n18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of\nwhich together will constitute one and the same instrument.\n* * * * *\n[REMAINDER OF PAGE INTENTIONALLY BLANK]\n5\nIN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the latest date set forth below.\nCircuit City Stores, Inc. CarMax Inc.\nBy: By:\nTitle: Title:\nDate: Date:	EX-10.10 11 dex x1010.htm FORM OF CONFIDENTIALITY AGREEMENT\nExhibit 10.10\nFORM OF CONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement ("Agreement") is made as of the\nday of\nby and among Circuit City Stores, Inc.,\n("Circuit City") a Virginia corporation and CarMax, Inc., a Virginia corporation ("CarMax"), either Circuit City or CarMax as a "Party" or\ncollectively, as the "Parties".\nINTRODUCTION\nA. Circuit City and CarMax have executed a Separation Agreement dated as of (the "Separation Agreement"), pursuant to which CarMax and\nthe CarMax Subsidiaries separated from Circuit City and the Circuit City Subsidiaries (the "Spin-off"). For purposes of this Agreement, Circuit City\nand\nthe Circuit City Subsidiaries collectively, or CarMax and the CarMax Subsidiaries collectively, shall each be referred to as a "Party".\nB. Prior to the Spin-off, CarMax existed as part of Circuit City, resulting in the sharing and consolidation of Confidential Information (as\ndefined below).\nC. As a result of the historical co-mingling of Circuit City and CarMax information prior to the Spin-off, there are paper records, localized\nelectronic records (stored on individual PC's or discs) or information stored in other media containing Confidential Information of the other Party.\nD. Further, pursuant to the Separation Agreement, Circuit City will provide certain transition services to CarMax following the Spin-off\npursuant to Transition Services Agreement between Circuit City and CarMax. As a result, certain Circuit City employees will have access to\nCarMax's Confidential Information.\nE. The Parties agree that full segregation of all co-mingled Confidentia Information that pre-dates the Spin-off is not practical and that the\ndisclosure of Confidential Information during the provision of services pursuant to the Transition Services Agreement or other Ancillary Agreements\nmay be unavoidable.\nNOW, THEREFORE, in consideration of the joint nature of the disclosure and the business relationship between the parties, it is hereby agreed\nas follows:\n1. Definition. For purposes of this Agreement, the term "Confidential Information" shall mean proprietary and confidential business\ninformation obtained by either Party at any time including, without limitation, the following:\n(a) Any trade secret, know-how, invention, software program, application, documentation, schematic, procedure, contract, information,\nknowledge, data, process, technique, design, drawing, program, formula or test data, work in progress, engineering, manufacturing, marketing,\nfinancial, sales, supplier, customer, employee, investor, or business information, whether in oral, written, graphic or electronic form;\n(b) Any non-public business information, including, without limitation, personnel data; correspondence with governmental agencies;\nhistorical customer information and data; historical cost information such as budgets and operating expenses and capital costs; and projected\ncapital additions and operating cost information;\n(c) Any document, diagram, photograph, drawing, computer program or other communication that is either conspicuously marked\n"confidential", or is known or reasonably should have been known by the Party in possession to be confidential; and\n(d) Any advice, information, exhibits, documentation or any other information that a Party reasonably expects would be protected by\nattorney-client privilege or work product doctrine or other applicable privileges.\n2. Prohibition of Use. Circuit City acknowledges that it is authorized to access and use the Confidential Information of CarMax for the sole\npurpose of performing the services it is contractually bound to provide to such parties, specifically with respect to carrying out its obligations under\nthe\nTransition Services Agreement and other agreements related to the Separation Agreement. Otherwise, each of the Parties agrees that, with respect\nto the Confidential Information of the other Party, it will not (i) take any affirmative action to access such Confidential Information; (ii) directly or\nindirectly utilize any such Confidential Information in its business; (ii) manufacture and/or sell any product or provide any service that is based in\nwhole or in part on such Confidential Information; (iii) copy or modify such Confidential Information, or any copy or portion thereof; or (iv)\ndisclose such Confidential Information to any third party.\n3. Prior Disclosures. Prior to the Separation Agreement, Circuit City and CarMax may have exchanged information within their\nconsolidated corporate structure without restriction. Such information supplied to one Party by the other prior to the execution of this Agreement\nshall nonetheless be considered Confidential Information (except as specifically excluded pursuant to Section 5 below) for the purposes of this\nAgreement and shall be subject to the terms and conditions hereof.\n4. Specific Restriction Regarding Waiver of Attorney-Client Privilege or Work Product Doctrine. Prior to any action by the either Party\nthat could reasonably be expected to lead to or that would constitute waiver of attorney-client privilege or work product doctrine, the Party\ndisclosing the information must give prior notice to the other Party as soon as possible.\n2\n5. Nonprotected Information. The Parties agree that their mutual covenants with respect to each other's Confidential Information shall not\napply to any information, data or other materials imparted to the extent that any of the following conditions apply:\n(a) The information is, or any time hereafter becomes, available to the public or contained in a filing to a government agency without\nbreach of this Agreement by the receiving Party;\n(b) The information is obtained by the recipient from any other person, firm or company having no obligation to or relationship with the\ndisclosing Party;\n(c) The information is developed by or for recipient independently of information received from one or more of the Parties hereto; or\n(d) The information is more than ten (10) years old.\n6. Court-Ordered Disclosure. No Party hereto shall be liable for disclosure of Confidential Information of the other Party if made in\nresponse to a valid order of a court or authorized agency of government; provided, however that five (5) days' notice first be given to the\nother\nParty\nso a protective order, if appropriate, and may be sought by such Party with the cooperation of the other Party.\n7. Disclosure of Confidentiality Agreement Terms. Notwithstanding any other provisions hereof, the terms of this Agreement shall not be\ndeemed to be the Confidential Information of any Party hereto, and each Party shall have the right to disclose the terms hereof to third parties in its\nown discretion.\n8. No Conveyance or License. Nothing in this Agreement shall be construed to convey to the recipient of Confidential Information any\nright, title, interest or copyright in any Confidential Information, or any license to use, sell, exploit, copy or further develop any such Confidential\nInformation. This Agreement does not in any way bind the Parties to enter into a business relationship of any type with each other.\n9. Injunctive Relief. The Parties agree that a breach by either Party of this Agreement with respect to the Confidential Information of the\nother Party to this Agreement will cause irreparable damages to the other Party (the "Non-Breaching Party") for which recovery of money damages\nwould be inadequate, and that the Non-Breaching Party shall, therefore, be entitled to obtain timely injunctive relief to protect its rights under this\nAgreement in addition to any and all remedies available at law without the need to post a bond or other undertaking.\n3\n10. Governing Law and Choice of Forum. This Agreement has been made under and shall be governed by, interpreted and enforced in\naccordance with the laws of the Commonwealth of Virginia without regard to the conflict of laws rules thereof. All disputes hereunder shall be\nresolved in the applicable state or Federal courts of Virginia. The parties consent to the jurisdiction of such courts, agree to accept service of process\nby mail, and waive any jurisdictional or venue defenses otherwise available.\n11. Agreement Binding on Successors. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, and their\nheirs, administrators, successors and assigns.\n12. Waiver. The failure of either Party at any time or times to demand strict performance by the other Party of the terms, covenants, or\nconditions set forth in this Agreement shall not be construed as a continuing waiver or relinquishment thereof, and either Party may at any time\ndemand strict and complete performance of such terms, covenants, and conditions.\n13. Assignability. This Agreement is personal to both Parties and may not be assigned by any act of either Party or by operation of law\nunless in connection with a transfer of substantially all the assets of such Party as a transfer to its affiliate.\n14. Severability. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect\nthe validity or operation of any other provision, and such invalid provision shall be deemed to be severed from the Agreement.\n15. Significance of Headings. Paragraph headings contained herein are solely for the purpose of aiding in speedy location of subject matter\nand are not in any sense to be used in the construction of this Agreement. Accordingly, in case of any questions with respect to the construction\nof\nthis Agreement, it is to be construed as though paragraph headings had been omitted.\n16. Integration. This Agreement constitutes the final, exclusive, and complete expression of the agreement of the Parties hereto, and\nit\nembodies all of the terms and conditions of the Agreement between the Parties with respect to the subject matter hereof. This Agreement is expressly\nintended to replace and supersede all prior and contemporaneous agreements, proposals, negotiations, representations, and warranties, if any,\nbetween the Parties whether oral or written with respect to the subject matter hereof. There are no agreements, representations, or warranties that\nhave not been included in this Agreement with respect to the subject matter hereof. It represents the result of arms length negotiation between the\nParties and shall be interpreted and construed without regard to any presumption or other rule requiring construction against either Party.\n4\n17. Amendments. This Agreement shall not be modified or amended except in writing signed by the parties hereto and specifically referring\nto this Agreement.\n18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all\nof\nwhich together will constitute one and the same instrument.\n*\n*k\n*\n*k\n*\n[REMAINDER OF PAGE INTENTIONALLY BLANK]\n5\nIN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the latest date set forth below.\nCircuit City Stores, Inc.\nCarMax Inc.\nBy:\nBy:\nTitle:\nTitle:\nDate:\nDate:\n6	EX-10.10 11 dex1010.htm FORM OF CONFIDENTIALITY AGREEMENT\nExhibit 10.10\nFORM OF CONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (“Agreement”) is made as of the\nday of\n,\nby and among Circuit City Stores, Inc.,\n(“Circuit City”) a Virginia corporation and CarMax, Inc., a Virginia corporation (“CarMax”), either Circuit City or CarMax as a “Party” or\ncollectively, as the “Parties”.\nINTRODUCTION\nA. Circuit City and CarMax have executed a Separation Agreement dated as of (the “Separation Agreement”), pursuant to which CarMax and\nthe CarMax Subsidiaries separated from Circuit City and the Circuit City Subsidiaries (the “Spin-off”). For purposes of this Agreement, Circuit City\nand the Circuit City Subsidiaries collectively, or CarMax and the CarMax Subsidiaries collectively, shall each be referred to as a “Party”.\nB. Prior to the Spin-off, CarMax existed as part of Circuit City, resulting in the sharing and consolidation of Confidential Information (as\ndefined below).\nC. As a result of the historical co-mingling of Circuit City and CarMax information prior to the Spin-off, there are paper records, localized\nelectronic records (stored on individual PC’s or discs) or information stored in other media containing Confidential Information of the other Party.\nD. Further, pursuant to the Separation Agreement, Circuit City will provide certain transition services to CarMax following the Spin-off\npursuant to Transition Services Agreement between Circuit City and CarMax. As a result, certain Circuit City employees will have access to\nCarMax’s Confidential Information.\nE. The Parties agree that full segregation of all co-mingled Confidential Information that pre-dates the Spin-off is not practical and that the\ndisclosure of Confidential Information during the provision of services pursuant to the Transition Services Agreement or other Ancillary Agreements\nmay be unavoidable.\nNOW, THEREFORE, in consideration of the joint nature of the disclosure and the business relationship between the parties, it is hereby agreed\nas follows:\n1. Definition. For purposes of this Agreement, the term “Confidential Information” shall mean proprietary and confidential business\ninformation obtained by either Party at any time including, without limitation, the following:\n(a) Any trade secret, know-how, invention, software program, application, documentation, schematic, procedure, contract, information,\nknowledge, data, process, technique, design, drawing, program, formula or test data, work in progress, engineering, manufacturing, marketing,\nfinancial, sales, supplier, customer, employee, investor, or business information, whether in oral, written, graphic or electronic form;\n(b) Any non-public business information, including, without limitation, personnel data; correspondence with governmental agencies;\nhistorical customer information and data; historical cost information such as budgets and operating expenses and capital costs; and projected\ncapital additions and operating cost information;\n(c) Any document, diagram, photograph, drawing, computer program or other communication that is either conspicuously marked\n“confidential”, or is known or reasonably should have been known by the Party in possession to be confidential; and\n(d) Any advice, information, exhibits, documentation or any other information that a Party reasonably expects would be protected by\nattorney-client privilege or work product doctrine or other applicable privileges.\n2. Prohibition of Use. Circuit City acknowledges that it is authorized to access and use the Confidential Information of CarMax for the sole\npurpose of performing the services it is contractually bound to provide to such parties, specifically with respect to carrying out its obligations under\nthe Transition Services Agreement and other agreements related to the Separation Agreement. Otherwise, each of the Parties agrees that, with respect\nto the Confidential Information of the other Party, it will not (i) take any affirmative action to access such Confidential Information; (ii) directly or\nindirectly utilize any such Confidential Information in its business; (ii) manufacture and/or sell any product or provide any service that is based in\nwhole or in part on such Confidential Information; (iii) copy or modify such Confidential Information, or any copy or portion thereof; or (iv)\ndisclose such Confidential Information to any third party.\n3. Prior Disclosures. Prior to the Separation Agreement, Circuit City and CarMax may have exchanged information within their\nconsolidated corporate structure without restriction. Such information supplied to one Party by the other prior to the execution of this Agreement\nshall nonetheless be considered Confidential Information (except as specifically excluded pursuant to Section 5 below) for the purposes of this\nAgreement and shall be subject to the terms and conditions hereof.\n4. Specific Restriction Regarding Waiver of Attorney-Client Privilege or Work Product Doctrine. Prior to any action by the either Party\nthat could reasonably be expected to lead to or that would constitute waiver of attorney-client privilege or work product doctrine, the Party\ndisclosing the information must give prior notice to the other Party as soon as possible.\n2\n5. Nonprotected Information. The Parties agree that their mutual covenants with respect to each other’s Confidential Information shall not\napply to any information, data or other materials imparted to the extent that any of the following conditions apply:\n(a) The information is, or any time hereafter becomes, available to the public or contained in a filing to a government agency without\nbreach of this Agreement by the receiving Party;\n(b) The information is obtained by the recipient from any other person, firm or company having no obligation to or relationship with the\ndisclosing Party;\n(c) The information is developed by or for recipient independently of information received from one or more of the Parties hereto; or\n(d) The information is more than ten (10) years old.\n6. Court-Ordered Disclosure. No Party hereto shall be liable for disclosure of Confidential Information of the other Party if made in\nresponse to a valid order of a court or authorized agency of government; provided, however that five (5) days’ notice first be given to the other Party\nso a protective order, if appropriate, and may be sought by such Party with the cooperation of the other Party.\n7. Disclosure of Confidentiality Agreement Terms. Notwithstanding any other provisions hereof, the terms of this Agreement shall not be\ndeemed to be the Confidential Information of any Party hereto, and each Party shall have the right to disclose the terms hereof to third parties in its\nown discretion.\n8. No Conveyance or License. Nothing in this Agreement shall be construed to convey to the recipient of Confidential Information any\nright, title, interest or copyright in any Confidential Information, or any license to use, sell, exploit, copy or further develop any such Confidential\nInformation. This Agreement does not in any way bind the Parties to enter into a business relationship of any type with each other.\n9. Injunctive Relief. The Parties agree that a breach by either Party of this Agreement with respect to the Confidential Information of the\nother Party to this Agreement will cause irreparable damages to the other Party (the “Non-Breaching Party”) for which recovery of money damages\nwould be inadequate, and that the Non-Breaching Party shall, therefore, be entitled to obtain timely injunctive relief to protect its rights under this\nAgreement in addition to any and all remedies available at law without the need to post a bond or other undertaking.\n3\n10. Governing Law and Choice of Forum. This Agreement has been made under and shall be governed by, interpreted and enforced in\naccordance with the laws of the Commonwealth of Virginia without regard to the conflict of laws rules thereof. All disputes hereunder shall be\nresolved in the applicable state or Federal courts of Virginia. The parties consent to the jurisdiction of such courts, agree to accept service of process\nby mail, and waive any jurisdictional or venue defenses otherwise available.\n11. Agreement Binding on Successors. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, and their\nheirs, administrators, successors and assigns.\n12. Waiver. The failure of either Party at any time or times to demand strict performance by the other Party of the terms, covenants, or\nconditions set forth in this Agreement shall not be construed as a continuing waiver or relinquishment thereof, and either Party may at any time\ndemand strict and complete performance of such terms, covenants, and conditions.\n13. Assignability. This Agreement is personal to both Parties and may not be assigned by any act of either Party or by operation of law\nunless in connection with a transfer of substantially all the assets of such Party as a transfer to its affiliate.\n14. Severability. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect\nthe validity or operation of any other provision, and such invalid provision shall be deemed to be severed from the Agreement.\n15. Significance of Headings. Paragraph headings contained herein are solely for the purpose of aiding in speedy location of subject matter\nand are not in any sense to be used in the construction of this Agreement. Accordingly, in case of any questions with respect to the construction of\nthis Agreement, it is to be construed as though paragraph headings had been omitted.\n16. Integration. This Agreement constitutes the final, exclusive, and complete expression of the agreement of the Parties hereto, and it\nembodies all of the terms and conditions of the Agreement between the Parties with respect to the subject matter hereof. This Agreement is expressly\nintended to replace and supersede all prior and contemporaneous agreements, proposals, negotiations, representations, and warranties, if any,\nbetween the Parties whether oral or written with respect to the subject matter hereof. There are no agreements, representations, or warranties that\nhave not been included in this Agreement with respect to the subject matter hereof. It represents the result of arms length negotiation between the\nParties and shall be interpreted and construed without regard to any presumption or other rule requiring construction against either Party.\n4\n17. Amendments. This Agreement shall not be modified or amended except in writing signed by the parties hereto and specifically referring\nto this Agreement.\n18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of\nwhich together will constitute one and the same instrument.\n*\n*\n*\n*\n*\n[REMAINDER OF PAGE INTENTIONALLY BLANK]\n5\nIN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the latest date set forth below.\nCircuit City Stores, Inc.\nCarMax Inc.\nBy:\nBy:\nTitle:\nTitle:\nDate:\nDate:\n6
+44d0e1f70e321bbedced3ad99d891f23.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 14 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nExecution Version\nCONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is entered into as of the 30 of July 2010 and shall be deemed to be effective as of July 23, 2010 between Endo\nPharmaceuticals Inc., whose main offices are located at 100 Endo Boulevard, Chadds Ford, Pennsylvania 19317, for itself and its subsidiaries, each\nof which shall be bound by this Agreement as if each had separately executed this Agreement (collectively “Endo”), and Penwest Pharmaceuticals\nCo. located at 2981 Route 22, Patterson, NY 12563 ( “Penwest”).\nWHEREAS, the parties hereto wish to explore a mutually beneficial relationship which may result in a merger, acquisition or other consolidation of\nthe businesses of the parties (the “Purpose”), and in so doing, may disclose to each other certain non-public confidential and proprietary information\npertaining to such possible business relationship, as set forth below.\nWHEREAS, the parties hereto are parties to that Amended and Restated Strategic Alliance Agreement, dated as of April 2, 2002, as amended (the\n“Alliance Agreement”), pursuant to which each party is bound by confidentiality obligations as set forth in Section 10.1 and 10.2 thereof.\nNOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows:\n1. For purposes of this Agreement, “Confidential Information” shall mean all non-public and proprietary information that one party has learned\nof or become aware of or has been or will be disclosed by one party, or one of its Affiliates or Representatives, to the other party, or one of its\nAffiliates or Representatives, in connection with the Purpose, whether set forth orally or in writing which may relate to among other things,\ntheir respective business interests, technical information, clinical data, product specifications, product development plans and ideas, marketing\nplans and ideas, manufacturing information or business operations. “Confidential Information” shall also include the substance of the recent\ndiscussions between the parties with respect to the Purpose as well as that such discussions have taken and are taking place and that this\nAgreement exists and that Confidential Information has been requested or made available. “Affiliate” shall mean any corporation, company,\npartnership, joint venture or other entity which controls, is controlled by, or is under common control with a party hereto; for purposes of this\ndefinition, “control” shall mean (a) in the case of corporate entities, direct or indirect ownership of at least fifty percent (50%) of the stock or\nshares having the right to vote for the election of directors, and (b) in the case of non-corporate entities, direct or indirect ownership of at least\nfifty percent (50%) of the equity interest with the power to direct the management and policies of such non-corporate entities.\n2. The parties hereby agree that the following shall not be considered Confidential Information subject to this Agreement:\n(a) information that, prior to the time of disclosure, is in the public domain , other than through a breach of the Alliance Agreement;\n(b) information that becomes part of the public domain or publicly known by publication or otherwise, provided that such publication or\nother means of disclosure is not in violation of this Agreement or the Alliance Agreement;\n(c) information that the receiving party can establish in writing was already known to it or was in its possession prior to the time of\ndisclosure hereunder and was not acquired, directly or indirectly, from the disclosing party pursuant to the Alliance Agreement;\nth\nConfidentiality Agreement\n(d) information that the receiving party lawfully received from a third party, provided however, that such third party was not obligated to\nhold such information in confidence;\n(e) information that was independently developed by the receiving party without reference to any Confidential Information of the disclosing\nparty, or to any information of the disclosing party which the receiving party was obligated to keep confidential pursuant to the Alliance\nAgreement, as established by appropriate documentation; and\n(f) information that the receiving party is compelled to disclose by a court or other tribunal of competent jurisdiction, provided however,\nthat in such case the receiving party shall give as much advance notice as feasible to the disclosing party so that the disclosing party may\nseek a protective order or other remedy from said court or tribunal. In any event, the receiving party shall disclose only that portion of\nthe Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed and will exercise reasonable\nefforts to ensure that any such information so disclosed will be accorded confidential treatment by said court or tribunal.\n3. The receiving party shall not use Confidential Information of the disclosing party for any purpose other than for the Purpose. The parties\nhereby agree to hold in strictest confidence any and all Confidential Information disclosed by one party to the other under the terms of this\nAgreement and shall use such information solely for the Purpose and, if a business relationship is consummated, carrying out such business\nrelationship.\nThe receiving party will not disclose any Confidential Information to any person other than to its Affiliates, employees, agents, representatives\n(including attorneys, accountants, consultants and advisors), directors, officers, employees and employees of Affiliates (collectively,\n“Representatives”) that have a need to know such information to effectuate the Purpose and that such Representatives shall be informed of this\nAgreement and shall be directed to maintain the confidentiality of such Confidential Information.\n4. Upon written request of the disclosing party, the receiving party shall return promptly to the disclosing party (or, at the receiving party’s\noption, destroy) all Confidential Information furnished to it, including any copies thereof and notes, extracts, or derivative materials based\nthereon (provided that if the receiving party so opts to destroy, the receiving party shall confirm and certify such destruction in writing to the\ndisclosing party); provided, however, that, to the extent that any such Confidential Information is also information which is subject to the\nconfidentiality obligations set forth in the Alliance Agreement, the receiving party may retain such Confidential Information for purposes of\nthe Alliance Agreement in accordance with the provisions of the Alliance Agreement and the receiving party shall remain bound by the\nconfidentiality provisions in the Alliance Agreement; and until the expiration of the confidentiality obligations set forth in this Agreement,\nshall keep confidential and not use other than for the Purpose any analyses, compilations, studies or other documents which reflect any of the\nConfidential Information. Notwithstanding the foregoing provision, the legal counsel of both parties may retain one copy of Confidential\nInformation in its confidential files solely for archival purposes.\n5. Title to, and all rights emanating from the ownership of, all Confidential Information disclosed under this Agreement shall remain vested in the\ndisclosing party, provided, however that the ownership of information disclosed pursuant to this Agreement that is also disclosed pursuant to\nthe Alliance Agreement shall be as set forth in the Alliance Agreement. Nothing herein shall be construed as granting any license or option in\nfavor of the receiving party in such Confidential Information under any patent, copyright and/or any other rights now or hereafter\nPage2of4\nConfidentiality Agreement\nheld by the disclosing party in or as a result of such Confidential Information, except as otherwise set forth in the Alliance Agreement or as\notherwise specifically agreed upon by the parties.\n6. Confidential Information shall remain subject to this Agreement for a period of five (5) years beyond the date of disclosure or generation of\nsuch Confidential Information.\n7. The execution and performance of this Agreement does not obligate the parties to enter into any other agreement or to perform any obligations\nother than as specified herein.\n8. The receiving party agrees that the disclosure of Confidential Information to any third party without the express written consent of the\ndisclosing party may cause irreparable harm to the disclosing party, and that any breach or threatened breach of this Agreement by the\nreceiving party will entitle the disclosing party to seek injunctive relief, in addition to any other legal remedies available to it, in any court of\ncompetent jurisdiction.\n9. No failure or delay by the disclosing party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n10. The parties hereby agree that this Agreement represents the entire agreement between the parties with respect to the subject matter hereof and\nsupersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the handling of Confidential\nInformation, whether written, oral, visual, audio or in any other medium whatsoever; provided, however, that (a) the Alliance Agreement\nremains in effect, (b) the provisions of this Agreement shall not release a party from its obligations of confidentiality with respect to\ninformation protected pursuant to the Alliance Agreement, (c) the provisions of the Alliance Agreement shall not release a party from its\nobligations of confidentiality with respect to Confidential Information as set forth in this Agreement, and (d) to the extent that any Confidential\nInformation under this Agreement is also subject to the confidentiality obligations under the Alliance Agreement, such information shall be\nprotected under the relevant agreement for the longer of the period of time set forth in Section 6 of this Agreement or the relevant period of\ntime pursuant to the Alliance Agreement.\n11. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania without reference to its conflict of laws rules. This\nagreement may not be amended or in any manner modified except by a written instrument signed by authorized representatives of both Parties.\nIf any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable\nprovision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention\nof the parties as expressed herein.\n12. This Agreement shall be binding on each party’s successors and assigns. This Agreement may not be assigned without the written consent of\nboth parties.\n13. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the\nsame agreement. Signatures to this Agreement transmitted by facsimile, by electronic mail in “portable document format” (“.pdf”), or by any\nother electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical\ndelivery of the paper document bearing the original signature.\nPage3of4\nConfidentiality Agreement\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nENDO PHARMACEUTICALS INC.\nPENWEST PHARMACEUTICALS CO.\nBy: /s/ Caroline B. Manogue\nBy: /s/ Jennifer L. Good\nName: Caroline B. Manogue\nName: Jennifer L. Good\nTitle: Executive Vice President\nChief Legal Officer and Secretary\nTitle: President and Chief Executive Officer\nPage4of4	EX-99.(D)(3) 14 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nExecution Version\nCONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is entered into as of the 30t of July 2010 and shall be deemed to be effective as of July 23, 2010 between Endo\nPharmaceuticals Inc., whose main offices are located at 100 Endo Boulevard, Chadds Ford, Pennsylvania 19317, for itself and its subsidiaries, each\nof which shall be bound by this Agreement as if each had separately executed this Agreement (collectively “Endo”), and Penwest Pharmaceuticals\nCo. located at 2981 Route 22, Patterson, NY 12563 ( “Penwest”).\nWHEREAS, the parties hereto wish to explore a mutually beneficial relationship which may result in a merger, acquisition or other consolidation of\nthe businesses of the parties (the “Purpose”), and in so doing, may disclose to each other certain non-public confidential and proprietary information\npertaining to such possible business relationship, as set forth below.\nWHEREAS, the parties hereto are parties to that Amended and Restated Strategic Alliance Agreement, dated as of April 2, 2002, as amended (the\n“Alliance Agreement”), pursuant to which each party is bound by confidentiality obligations as set forth in Section 10.1 and 10.2 thereof.\nNOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows:\n1. For purposes of this Agreement, “Confidential Information” shall mean all non-public and proprietary information that one party has learned\nof or become aware of or has been or will be disclosed by one party, or one of its Affiliates or Representatives, to the other party, or one of its\nAffiliates or Representatives, in connection with the Purpose, whether set forth orally or in writing which may relate to among other things,\ntheir respective business interests, technical information, clinical data, product specifications, product development plans and ideas, marketing\nplans and ideas, manufacturing information or business operations. “Confidential Information” shall also include the substance of the recent\ndiscussions between the parties with respect to the Purpose as well as that such discussions have taken and are taking place and that this\nAgreement exists and that Confidential Information has been requested or made available. “Affiliate” shall mean any corporation, company,\npartnership, joint venture or other entity which controls, is controlled by, or is under common control with a party hereto; for purposes of this\ndefinition, “control” shall mean (a) in the case of corporate entities, direct or indirect ownership of at least fifty percent (50%) of the stock or\nshares having the right to vote for the election of directors, and (b) in the case of non-corporate entities, direct or indirect ownership of at least\nfifty percent (50%) of the equity interest with the power to direct the management and policies of such non-corporate entities.\n2. The parties hereby agree that the following shall not be considered Confidential Information subject to this Agreement:\n(a) information that, prior to the time of disclosure, is in the public domain , other than through a breach of the Alliance Agreement;\n(b) information that becomes part of the public domain or publicly known by publication or otherwise, provided that such publication or\nother means of disclosure is not in violation of this Agreement or the Alliance Agreement;\n(c) information that the receiving party can establish in writing was already known to it or was in its possession prior to the time of\ndisclosure hereunder and was not acquired, directly or indirectly, from the disclosing party pursuant to the Alliance Agreement;\nConfidentiality Agreement\n(d) information that the receiving party lawfully received from a third party, provided however, that such third party was not obligated to\nhold such information in confidence;\n(e) information that was independently developed by the receiving party without reference to any Confidential Information of the disclosing\nparty, or to any information of the disclosing party which the receiving party was obligated to keep confidential pursuant to the Alliance\nAgreement, as established by appropriate documentation; and\n(f) information that the receiving party is compelled to disclose by a court or other tribunal of competent jurisdiction, provided however,\nthat in such case the receiving party shall give as much advance notice as feasible to the disclosing party so that the disclosing party may\nseek a protective order or other remedy from said court or tribunal. In any event, the receiving party shall disclose only that portion of\nthe Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed and will exercise reasonable\nefforts to ensure that any such information so disclosed will be accorded confidential treatment by said court or tribunal.\nThe receiving party shall not use Confidential Information of the disclosing party for any purpose other than for the Purpose. The parties\nhereby agree to hold in strictest confidence any and all Confidential Information disclosed by one party to the other under the terms of this\nAgreement and shall use such information solely for the Purpose and, if a business relationship is consummated, carrying out such business\nrelationship.\nThe receiving party will not disclose any Confidential Information to any person other than to its Affiliates, employees, agents, representatives\n(including attorneys, accountants, consultants and advisors), directors, officers, employees and employees of Affiliates (collectively,\n“Representatives”) that have a need to know such information to effectuate the Purpose and that such Representatives shall be informed of this\nAgreement and shall be directed to maintain the confidentiality of such Confidential Information.\nUpon written request of the disclosing party, the receiving party shall return promptly to the disclosing party (or, at the receiving party’s\noption, destroy) all Confidential Information furnished to it, including any copies thereof and notes, extracts, or derivative materials based\nthereon (provided that if the receiving party so opts to destroy, the receiving party shall confirm and certify such destruction in writing to the\ndisclosing party); provided, however, that, to the extent that any such Confidential Information is also information which is subject to the\nconfidentiality obligations set forth in the Alliance Agreement, the receiving party may retain such Confidential Information for purposes of\nthe Alliance Agreement in accordance with the provisions of the Alliance Agreement and the receiving party shall remain bound by the\nconfidentiality provisions in the Alliance Agreement; and until the expiration of the confidentiality obligations set forth in this Agreement,\nshall keep confidential and not use other than for the Purpose any analyses, compilations, studies or other documents which reflect any of the\nConfidential Information. Notwithstanding the foregoing provision, the legal counsel of both parties may retain one copy of Confidential\nInformation in its confidential files solely for archival purposes.\nTitle to, and all rights emanating from the ownership of, all Confidential Information disclosed under this Agreement shall remain vested in the\ndisclosing party, provided, however that the ownership of information disclosed pursuant to this Agreement that is also disclosed pursuant to\nthe Alliance Agreement shall be as set forth in the Alliance Agreement. Nothing herein shall be construed as granting any license or option in\nfavor of the receiving party in such Confidential Information under any patent, copyright and/or any other rights now or hereafter\nPage 2 of 4\n10. 11. 12. 13. Confidentiality Agreement\nheld by the disclosing party in or as a result of such Confidential Information, except as otherwise set forth in the Alliance Agreement or as\notherwise specifically agreed upon by the parties.\nConfidential Information shall remain subject to this Agreement for a period of five (5) years beyond the date of disclosure or generation of\nsuch Confidential Information.\nThe execution and performance of this Agreement does not obligate the parties to enter into any other agreement or to perform any obligations\nother than as specified herein.\nThe receiving party agrees that the disclosure of Confidential Information to any third party without the express written consent of the\ndisclosing party may cause irreparable harm to the disclosing party, and that any breach or threatened breach of this Agreement by the\nreceiving party will entitle the disclosing party to seek injunctive relief, in addition to any other legal remedies available to it, in any court of\ncompetent jurisdiction.\nNo failure or delay by the disclosing party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\nThe parties hereby agree that this Agreement represents the entire agreement between the parties with respect to the subject matter hereof and\nsupersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the handling of Confidential\nInformation, whether written, oral, visual, audio or in any other medium whatsoever; provided, however, that (a) the Alliance Agreement\nremains in effect, (b) the provisions of this Agreement shall not release a party from its obligations of confidentiality with respect to\ninformation protected pursuant to the Alliance Agreement, (c) the provisions of the Alliance Agreement shall not release a party from its\nobligations of confidentiality with respect to Confidential Information as set forth in this Agreement, and (d) to the extent that any Confidential\nInformation under this Agreement is also subject to the confidentiality obligations under the Alliance Agreement, such information shall be\nprotected under the relevant agreement for the longer of the period of time set forth in Section 6 of this Agreement or the relevant period of\ntime pursuant to the Alliance Agreement.\nThis Agreement shall be governed by the laws of the Commonwealth of Pennsylvania without reference to its conflict of laws rules. This\nagreement may not be amended or in any manner modified except by a written instrument signed by authorized representatives of both Parties.\nIf any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable\nprovision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention\nof the parties as expressed herein.\nThis Agreement shall be binding on each party’s successors and assigns. This Agreement may not be assigned without the written consent of\nboth parties.\nThis Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the\nsame agreement. Signatures to this Agreement transmitted by facsimile, by electronic mail in “portable document format” (“.pdf”), or by any\nother electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical\ndelivery of the paper document bearing the original signature.\nPage 3 of 4\nConfidentiality Agreement\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nENDO PHARMACEUTICALS INC. PENWEST PHARMACEUTICALS CO.\nBy:  /s/ Caroline B. Manogue By: /s/ Jennifer L. Good\nName: Caroline B. Manogue Name: Jennifer L. Good\nTitle: Executive Vice President Title: President and Chief Executive Officer\nChief Legal Officer and Secretary\nPage 4 of 4	EX-99.(D)(3) 14 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nExecution Version\nCONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is entered into as of the 30th of July 2010 and shall be deemed to be effective as of July 23, 2010 between Endo\nPharmaceuticals Inc., whose main offices are located at 100 Endo Boulevard, Chadds Ford, Pennsylvania 19317, for itself and its subsidiaries, each\nof which shall be bound by this Agreement as if each had separately executed this Agreement (collectively "Endo"), and Penwest Pharmaceuticals\nCo. located at 2981 Route 22, Patterson, NY 12563 ( "Penwest").\nWHEREAS, the parties hereto wish to explore a mutually beneficial relationship which may result in a merger, acquisition or other consolidation of\nthe businesses of the parties (the "Purpose"), and in so doing, may disclose to each other certain non-public confidential and proprietary information\npertaining to such possible business relationship, as set forth below.\nWHEREAS, the parties hereto are parties to that Amended and Restated Strategic Alliance Agreement, dated as of April 2, 2002, as amended (the\n"Alliance Agreement"), pursuant to which each party is bound by confidentiality obligations as set forth in Section 10.1 and 10.2 thereof.\nNOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows:\n1.\nFor purposes of this Agreement, "Confidential Information" shall mean all non-public and proprietary information that one party has learned\nof or become aware of or has been or will be disclosed by one party, or one of its Affiliates or Representatives, to the other party, or one of\nits\nAffiliates or Representatives, in connection with the Purpose, whether set forth orally or in writing which may relate to among other things,\ntheir respective business interests, technical information, clinical data, product specifications, product development plans and ideas, marketing\nplans and ideas, manufacturing information or business operations. "Confidential Information" shall also include the substance of the recent\ndiscussions between the parties with respect to the Purpose as well as that such discussions have taken and are taking place and that this\nAgreement exists and that Confidential Information has been requested or made available. "Affiliate" shall mean any corporation, company,\npartnership, joint venture or other entity which controls, is controlled by, or is under common control with a party hereto; for purposes of this\ndefinition, "control" shall mean (a) in the case of corporate entities, direct or indirect ownership of at least fifty percent (50%) of the stock or\nshares having the right to vote for the election of directors, and (b) in the case of non-corporate entities, direct or indirect ownership of at least\nfifty percent (50%) of the equity interest with the power to direct the management and policies of such non-corporate entities.\n2.\nThe parties hereby agree that the following shall not be considered Confidential Information subject to this Agreement:\n(a)\ninformation that, prior to the time of disclosure, is in the public domain other than through a breach of the Alliance Agreement;\n(b)\ninformation that becomes part of the public domain or publicly known by publication or otherwise, provided that such publication or\nother means of disclosure is not in violation of this Agreement or the Alliance Agreement;\n(c)\ninformation that the receiving party can establish in writing was already known to it or was in its possession prior to the time of\ndisclosure hereunder and was not acquired, directly or indirectly, from the disclosing party pursuant to the Alliance Agreement;\nConfidentiality Agreement\n(d)\ninformation that the receiving party lawfully received from a third party, provided however, that such third party was not obligated to\nhold such information in confidence;\n(e)\ninformation that was independently developed by the receiving party without reference to any Confidential Information of the disclosing\nparty, or to any information of the disclosing party which the receiving party was obligated to keep confidential pursuant to the Alliance\nAgreement, as established by appropriate documentation; and\n(f)\ninformation that the receiving party is compelled to disclose by a court or other tribunal of competent jurisdiction, provided however,\nthat in such case the receiving party shall give as much advance notice as feasible to the disclosing party so that the disclosing party may\nseek a protective order or other remedy from said court or tribunal. In any event, the receiving party shall disclose only that portion of\nthe Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed and will exercise reasonable\nefforts to ensure that any such information so disclosed will be accorded confidential treatment by said court or tribunal.\n3.\nThe receiving party shall not use Confidential Information of the disclosing party for any purpose other than for the Purpose. The parties\nhereby agree to hold in strictest confidence any and all Confidential Information disclosed by one party to the other under the terms of this\nAgreement and shall use such information solely for the Purpose and, if a business relationship is consummated, carrying out such business\nrelationship.\nThe receiving party will not disclose any Confidential Information to any person other than to its Affiliates, employees, agents, representatives\n(including attorneys, accountants, consultants and advisors), directors, officers, employees and employees of Affiliates (collectively,\n"Representatives") that have a need to know such information to effectuate the Purpose and that such Representatives shall be informed of this\nAgreement and shall be directed to maintain the confidentiality of such Confidentia Information.\n4.\nUpon written request of the disclosing party, the receiving party shall return promptly to the disclosing party (or, at the receiving party's\noption, destroy) all Confidential Information furnished to it, including any copies thereof and notes, extracts, or derivative materials based\nthereon (provided that if the receiving party so opts to destroy, the receiving party shall confirm and certify such destruction in writing to the\ndisclosing party); provided, however, that, to the extent that any such Confidential Information is also information which is subject to the\nconfidentiality obligations set forth in the Alliance Agreement, the receiving party may retain such Confidential Information for purposes of\nthe Alliance Agreement in accordance with the provisions of the Alliance Agreement and the receiving party shall remain bound by the\nconfidentiality provisions in the Alliance Agreement; and until the expiration of the confidentiality obligations set forth in this Agreement,\nshall keep confidential and not use other than for the Purpose any analyses, compilations, studies or other documents which reflect any of the\nConfidential Information. Notwithstanding the foregoing provision, the legal counsel of both parties may retain one copy of Confidential\nInformation in its confidential files solely for archival purposes.\n5.\nTitle to, and all rights emanating from the ownership of, all Confidentia Information disclosed under this Agreement shall remain vested in the\ndisclosing party, provided, however that the ownership of information disclosed pursuant to this Agreement that is also disclosed pursuant to\nthe Alliance Agreement shall be as set forth in the Alliance Agreement. Nothing herein shall be construed as granting any license or option in\nfavor of the receiving party in such Confidential Information under any patent, copyright and/or any other rights now or hereafter\nPage 2 of 4\nConfidentiality Agreement\nheld by the disclosing party in or as a result of such Confidential Information, except as otherwise set forth in the Alliance Agreement or\nas\notherwise specifically agreed upon by the parties.\n6.\nConfidential Information shall remain subject to this Agreement for a period of five (5) years beyond the date of disclosure or generation of\nsuch Confidential Information.\n7.\nThe execution and performance of this Agreement does not obligate the parties to enter into any other agreement or to perform any obligations\nother than as specified herein.\n8.\nThe receiving party agrees that the disclosure of Confidential Information to any third party without the express written consent of the\ndisclosing party may cause irreparable harm to the disclosing party, and that any breach or threatened breach of this Agreement by the\nreceiving party will entitle the disclosing party to seek injunctive relief, in addition to any other legal remedies available to it, in any court of\ncompetent jurisdiction.\n9.\nNo\nfailure\nor\ndelay\nby\nthe\ndisclosing\nparty\nin\nexercising\nany\nright,\npower,\nor\nprivilege\nhereunder\nshall\noperate\nas\na\nwaiver\nthereof,\nnor\nshall\nany\nsingle or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n10.\nThe parties hereby agree that this Agreement represents the entire agreement between the parties with respect to the subject matter hereof and\nsupersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the handling of Confidential\nInformation, whether written, oral, visual, audio or in any other medium whatsoever; provided, however, that (a) the Alliance Agreement\nremains in effect, (b) the provisions of this Agreement shall not release a party from its obligations of confidentiality with respect to\ninformation protected pursuant to the Alliance Agreement, (c) the provisions of the Alliance Agreement shall not release a party from its\nobligations of confidentiality with respect to Confidential Information as set forth in this Agreement, and (d) to the extent that any Confidential\nInformation under this Agreement is also subject to the confidentiality obligations under the Alliance Agreement, such information shall\nbe\nprotected under the relevant agreement for the longer of the period of time set forth in Section 6 of this Agreement or the relevant period of\ntime pursuant to the Alliance Agreement.\n11. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania without reference to its conflict of laws rules. This\nagreement may not be amended or in any manner modified except by a written instrument signed by authorized representatives of both Parties.\nIf any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable\nprovision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention\nof the parties as expressed herein.\n12. This Agreement shall be binding on each party's successors and assigns. This Agreement may not be assigned without the written consent of\nboth parties.\n13. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the\nsame agreement. Signatures to this Agreement transmitted by facsimile, by electronic mail in "portable document format" (".pdf"), or by any\nother electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical\ndelivery of the paper document bearing the original signature.\nPage 3 of 4\nConfidentiality Agreement\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nENDO PHARMACEUTICALS INC.\nPENWEST PHARMACEUTICALS CO.\nBy:\n/s/ Caroline B. Manogue\nBy:\n/s/ Jennifer L. Good\nName: Caroline B. Manogue\nName: Jennifer L. Good\nTitle: Executive Vice President\nTitle: President and Chief Executive Officer\nChief Legal Officer and Secretary\nPage 4 of 4	EX-99.(D)(3) 14 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nExecution Version\nCONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is entered into as of the 30 of July 2010 and shall be deemed to be effective as of July 23, 2010 between Endo\nPharmaceuticals Inc., whose main offices are located at 100 Endo Boulevard, Chadds Ford, Pennsylvania 19317, for itself and its subsidiaries, each\nof which shall be bound by this Agreement as if each had separately executed this Agreement (collectively “Endo”), and Penwest Pharmaceuticals\nCo. located at 2981 Route 22, Patterson, NY 12563 ( “Penwest”).\nWHEREAS, the parties hereto wish to explore a mutually beneficial relationship which may result in a merger, acquisition or other consolidation of\nthe businesses of the parties (the “Purpose”), and in so doing, may disclose to each other certain non-public confidential and proprietary information\npertaining to such possible business relationship, as set forth below.\nWHEREAS, the parties hereto are parties to that Amended and Restated Strategic Alliance Agreement, dated as of April 2, 2002, as amended (the\n“Alliance Agreement”), pursuant to which each party is bound by confidentiality obligations as set forth in Section 10.1 and 10.2 thereof.\nNOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows:\n1. For purposes of this Agreement, “Confidential Information” shall mean all non-public and proprietary information that one party has learned\nof or become aware of or has been or will be disclosed by one party, or one of its Affiliates or Representatives, to the other party, or one of its\nAffiliates or Representatives, in connection with the Purpose, whether set forth orally or in writing which may relate to among other things,\ntheir respective business interests, technical information, clinical data, product specifications, product development plans and ideas, marketing\nplans and ideas, manufacturing information or business operations. “Confidential Information” shall also include the substance of the recent\ndiscussions between the parties with respect to the Purpose as well as that such discussions have taken and are taking place and that this\nAgreement exists and that Confidential Information has been requested or made available. “Affiliate” shall mean any corporation, company,\npartnership, joint venture or other entity which controls, is controlled by, or is under common control with a party hereto; for purposes of this\ndefinition, “control” shall mean (a) in the case of corporate entities, direct or indirect ownership of at least fifty percent (50%) of the stock or\nshares having the right to vote for the election of directors, and (b) in the case of non-corporate entities, direct or indirect ownership of at least\nfifty percent (50%) of the equity interest with the power to direct the management and policies of such non-corporate entities.\n2. The parties hereby agree that the following shall not be considered Confidential Information subject to this Agreement:\n(a) information that, prior to the time of disclosure, is in the public domain , other than through a breach of the Alliance Agreement;\n(b) information that becomes part of the public domain or publicly known by publication or otherwise, provided that such publication or\nother means of disclosure is not in violation of this Agreement or the Alliance Agreement;\n(c) information that the receiving party can establish in writing was already known to it or was in its possession prior to the time of\ndisclosure hereunder and was not acquired, directly or indirectly, from the disclosing party pursuant to the Alliance Agreement;\nth\nConfidentiality Agreement\n(d) information that the receiving party lawfully received from a third party, provided however, that such third party was not obligated to\nhold such information in confidence;\n(e) information that was independently developed by the receiving party without reference to any Confidential Information of the disclosing\nparty, or to any information of the disclosing party which the receiving party was obligated to keep confidential pursuant to the Alliance\nAgreement, as established by appropriate documentation; and\n(f) information that the receiving party is compelled to disclose by a court or other tribunal of competent jurisdiction, provided however,\nthat in such case the receiving party shall give as much advance notice as feasible to the disclosing party so that the disclosing party may\nseek a protective order or other remedy from said court or tribunal. In any event, the receiving party shall disclose only that portion of\nthe Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed and will exercise reasonable\nefforts to ensure that any such information so disclosed will be accorded confidential treatment by said court or tribunal.\n3. The receiving party shall not use Confidential Information of the disclosing party for any purpose other than for the Purpose. The parties\nhereby agree to hold in strictest confidence any and all Confidential Information disclosed by one party to the other under the terms of this\nAgreement and shall use such information solely for the Purpose and, if a business relationship is consummated, carrying out such business\nrelationship.\nThe receiving party will not disclose any Confidential Information to any person other than to its Affiliates, employees, agents, representatives\n(including attorneys, accountants, consultants and advisors), directors, officers, employees and employees of Affiliates (collectively,\n“Representatives”) that have a need to know such information to effectuate the Purpose and that such Representatives shall be informed of this\nAgreement and shall be directed to maintain the confidentiality of such Confidential Information.\n4. Upon written request of the disclosing party, the receiving party shall return promptly to the disclosing party (or, at the receiving party’s\noption, destroy) all Confidential Information furnished to it, including any copies thereof and notes, extracts, or derivative materials based\nthereon (provided that if the receiving party so opts to destroy, the receiving party shall confirm and certify such destruction in writing to the\ndisclosing party); provided, however, that, to the extent that any such Confidential Information is also information which is subject to the\nconfidentiality obligations set forth in the Alliance Agreement, the receiving party may retain such Confidential Information for purposes of\nthe Alliance Agreement in accordance with the provisions of the Alliance Agreement and the receiving party shall remain bound by the\nconfidentiality provisions in the Alliance Agreement; and until the expiration of the confidentiality obligations set forth in this Agreement,\nshall keep confidential and not use other than for the Purpose any analyses, compilations, studies or other documents which reflect any of the\nConfidential Information. Notwithstanding the foregoing provision, the legal counsel of both parties may retain one copy of Confidential\nInformation in its confidential files solely for archival purposes.\n5. Title to, and all rights emanating from the ownership of, all Confidential Information disclosed under this Agreement shall remain vested in the\ndisclosing party, provided, however that the ownership of information disclosed pursuant to this Agreement that is also disclosed pursuant to\nthe Alliance Agreement shall be as set forth in the Alliance Agreement. Nothing herein shall be construed as granting any license or option in\nfavor of the receiving party in such Confidential Information under any patent, copyright and/or any other rights now or hereafter\nPage2of4\nConfidentiality Agreement\nheld by the disclosing party in or as a result of such Confidential Information, except as otherwise set forth in the Alliance Agreement or as\notherwise specifically agreed upon by the parties.\n6. Confidential Information shall remain subject to this Agreement for a period of five (5) years beyond the date of disclosure or generation of\nsuch Confidential Information.\n7. The execution and performance of this Agreement does not obligate the parties to enter into any other agreement or to perform any obligations\nother than as specified herein.\n8. The receiving party agrees that the disclosure of Confidential Information to any third party without the express written consent of the\ndisclosing party may cause irreparable harm to the disclosing party, and that any breach or threatened breach of this Agreement by the\nreceiving party will entitle the disclosing party to seek injunctive relief, in addition to any other legal remedies available to it, in any court of\ncompetent jurisdiction.\n9. No failure or delay by the disclosing party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n10. The parties hereby agree that this Agreement represents the entire agreement between the parties with respect to the subject matter hereof and\nsupersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the handling of Confidential\nInformation, whether written, oral, visual, audio or in any other medium whatsoever; provided, however, that (a) the Alliance Agreement\nremains in effect, (b) the provisions of this Agreement shall not release a party from its obligations of confidentiality with respect to\ninformation protected pursuant to the Alliance Agreement, (c) the provisions of the Alliance Agreement shall not release a party from its\nobligations of confidentiality with respect to Confidential Information as set forth in this Agreement, and (d) to the extent that any Confidential\nInformation under this Agreement is also subject to the confidentiality obligations under the Alliance Agreement, such information shall be\nprotected under the relevant agreement for the longer of the period of time set forth in Section 6 of this Agreement or the relevant period of\ntime pursuant to the Alliance Agreement.\n11. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania without reference to its conflict of laws rules. This\nagreement may not be amended or in any manner modified except by a written instrument signed by authorized representatives of both Parties.\nIf any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable\nprovision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention\nof the parties as expressed herein.\n12. This Agreement shall be binding on each party’s successors and assigns. This Agreement may not be assigned without the written consent of\nboth parties.\n13. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the\nsame agreement. Signatures to this Agreement transmitted by facsimile, by electronic mail in “portable document format” (“.pdf”), or by any\nother electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical\ndelivery of the paper document bearing the original signature.\nPage3of4\nConfidentiality Agreement\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nENDO PHARMACEUTICALS INC.\nPENWEST PHARMACEUTICALS CO.\nBy: /s/ Caroline B. Manogue\nBy: /s/ Jennifer L. Good\nName: Caroline B. Manogue\nName: Jennifer L. Good\nTitle: Executive Vice President\nChief Legal Officer and Secretary\nTitle: President and Chief Executive Officer\nPage4of4
+4792b40942a83f57d590a2355c56a314.pdf	effective_date jurisdiction party term	EX-99.(E)(6) 3 dex99e6.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(6)\nCONFIDENTIALITY AGREEMENT\nThis CONFIDENTIALITY AGREEMENT (this “Agreement”), dated as of January 25, 2010, is by and between Protection One, Inc.\n(“Protection One”) and GTCR Golden Rauner II, LLC (“Recipient”). Protection One and Recipient are sometimes collectively referred to herein as\nthe “Parties” and individually as a “Party.” Certain capitalized terms used herein have the meanings set forth in Section 9.\nWITNESSETH\nWHEREAS, Recipient desires that Protection One provide certain information in order to enable Recipient to evaluate the possibility of\nengaging in a strategic transaction (the “Transaction”);\nWHEREAS, during the course of any discussions or negotiations regarding the Transaction, Protection One will from time to time\nprovide Recipient with confidential information;\nWHEREAS, Recipient acknowledges and agrees that the confidential information provided by Protection One, before or after the\nexecution of this Agreement, is proprietary and highly confidential and that the unauthorized disclosure of such confidential information would\nresult in substantial and irreparable harm to Protection One, which harm would be extremely difficult to quantify; and\nWHEREAS, Protection One desires to preserve its employee base, business operations and capital structure free from the disruption that\ncould arise from the misuse of such confidential information.\nNOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of\nwhich are hereby acknowledged, the Parties hereto expressly agree as follows:\n1. Evaluation Material. The term “Evaluation Material” means any and all information, in any form or medium, written or oral,\nconcerning or relating to Protection One (whether prepared by Protection One, its Representatives or otherwise, and irrespective of the form or\nmeans of communication and whether it is labeled or otherwise identified as confidential) that is furnished to or on behalf of Recipient by or on\nbehalf of Protection One, including without limitation all oral and written information relating to financial statements, projections, evaluations,\nplans, programs, customers, suppliers, facilities, equipment and other assets, products, processes, manufacturing, marketing, research and\ndevelopment, trade secrets, know-how, patent applications that have not been published, technology and any other confidential information or\nintellectual property of Protection One. In addition, “Evaluation Material” shall be deemed to include all notes, analyses, studies, interpretations,\nmemoranda and other documents, materials or reports (in any form or medium) prepared by Recipient or any of its Representatives that contain,\nreflect or are based upon, in whole or part, the information furnished to or on behalf of Recipient as contemplated hereby. The term “Evaluation\nMaterial” shall not include information that: (a) is or becomes available to the public generally, other than as a result of disclosure by Recipient or\none of its Representatives in breach of the terms of this\nAgreement; (b) becomes available to Recipient from a source other than Protection One or one of its Representatives, including without limitation\nprior to the date hereof, provided that such source is not known by the Recipient after reasonable inquiry to be bound by a confidentiality agreement\nor to have a contractual, legal or fiduciary obligation of confidentiality to Protection One or any other person with respect to such information; or\n(c) has been independently acquired or developed by Recipient without using any Evaluation Material or violating any of its obligations under this\nAgreement.\n2. Use of Evaluation Material and Confidentiality.\n(a) The Recipient agrees that it and its Representatives shall use the Evaluation Material solely for the purpose of evaluating and negotiating\nthe possible Transaction, that neither Recipient nor any of its Representatives will use any of the Evaluation Material in any way that could be\n(directly or indirectly) detrimental to Protection One, and that the Evaluation Material will be kept confidential and that neither Recipient nor any of\nits Representatives will disclose any Evaluation Material in any manner whatsoever; provided, however, that Recipient may disclose Evaluation\nMaterial as follows: (i) to such of its Representatives who need such information for the purpose of evaluating and negotiating the possible\nTransaction, it being understood that such Representatives shall be informed in advance by Recipient of the confidential nature of such information;\n(ii) as expressly contemplated by this Agreement; and (iii) in all other cases, only if and to the extent that Protection One gives its prior written\nconsent to such disclosure.\n(b) As a condition to the furnishing of Evaluation Material to the Representatives of Recipient, Recipient shall cause its Representatives to\ntreat such information in accordance with the provisions of this Agreement and to perform or to comply with the obligations of Recipient with\nrespect to the Evaluation Material as contemplated hereby. Recipient agrees that it will be fully responsible for any breach of any of the provisions of\nthis Agreement by its Representatives.\n(c) Recipient agrees to take all reasonable steps to keep the Evaluation Material and any copies thereof secure and in such a way so as to\nprevent unauthorized access by any third party.\n(d) Recipient agrees that, without the prior written consent of Protection One, except as expressly permitted hereunder, Recipient and its\nRepresentatives shall not disclose to any person, prior to the time of public announcement by Protection One and Recipient of a definitive agreement\nbetween Recipient and Protection One with respect to a Transaction, the fact that the Evaluation Material has been made available to it/them, the fact\nthat discussions or negotiations are taking place or have taken place concerning a possible Transaction between the Parties, the existence of this\nAgreement or anything that might identify Protection One as exploring or having explored a possible Transaction or any similar transaction with any\nparticular party; provided, however, that Recipient may make such disclosure as it determines in good faith and upon the advice of counsel is\nrequired by law or the applicable rules of any national securities exchange or other market or reporting system (in which event Recipient shall use\nreasonable efforts to consult with Protection One as early as possible prior to any such disclosure regarding the nature, timing, extent and form of\nsuch disclosure).\n-2-\n(e) Recipient agrees that, without the prior written consent of Protection One, except as expressly permitted hereunder, Recipient and its\nRepresentatives shall not disclose to any other person (including, without limitation, by issuing a press release or otherwise making any public\nstatement) any of the terms, conditions or other information with respect to the Transaction, including the status thereof; provided, however, that\nRecipient may make such disclosure as it determines in good faith and upon the advice of counsel is required by law or the applicable rules of any\nnational securities exchange or other market or reporting system (in which event Recipient shall use reasonable efforts to consult with Protection\nOne as early as possible prior to any such disclosure regarding the nature, timing, extent and form of such disclosure).\n(f) If Recipient or any of its Representatives are requested or required to disclose any Evaluation Material by interrogatories or requests for\ninformation or other documents in any legal proceeding, subpoena, civil investigative demand or other similar process, to the extent legally\npermissible, Recipient shall provide Protection One with prompt written notice of any such request or requirement so that Protection One has an\nopportunity to seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement If Protection One\nwaives compliance with the provisions of this Agreement with respect to a specific request or requirement, Recipient and its Representatives shall\ndisclose only that portion of the Evaluation Material that is covered by such waiver and which is necessary to disclose in order to comply with such\nrequest or requirement. If (in the absence of a waiver by Protection One) Protection One has not secured a protective order or other appropriate\nremedy, and Recipient or one of its Representatives is nonetheless then legally compelled to disclose any Evaluation Material, Recipient or such\nRepresentative may, without liability hereunder, disclose only that portion of the Evaluation Material that is legally compelled to be disclosed.\n(g) If either Party hereto decides that it does not desire to proceed with the Transaction, then it shall promptly notify the other Party. Under\nsuch circumstances, upon the written request of Protection One, Recipient shall promptly destroy or deliver or cause to be delivered to Protection\nOne all Evaluation Material furnished to it or to any of its Representatives, together with all copies of such Evaluation Material (including, without\nlimitation, electronic copies), in the possession or control of Recipient or in the possession or control of any of its Representatives, and an officer of\nRecipient shall certify promptly in writing to Protection One that all such Evaluation Material has been destroyed or returned. Recipient nonetheless\nshall be entitled to retain a copy of all Evaluation Material of the Company in its legal files for use solely in connection with any litigation,\narbitration or like action between the Parties or involving one or both Parties related thereto. Notwithstanding the return, destruction or preservation\nof the Evaluation Material as contemplated by this subsection, Recipient and its Representatives will continue to be bound by the terms of this\nAgreement with respect thereto, including all obligations of confidentiality.\n(h) Nothing herein shall be deemed to limit or restrict Recipient from disclosing any information in any action or proceeding by Recipient to\nenforce any rights that Recipient may have against Protection One under this Agreement.\n3. No Liability, Reliance or Obligation. Each Party hereto understands and acknowledges that the other Party shall not be committed or\nliable in any way with respect to any\n-3-\nTransaction or to any matters discussed or negotiated unless and until a formal written agreement with respect thereto is executed by an authorized\nofficer of each Party, and that neither Party shall have any liability to the other Party in the event that, for any reason whatsoever, no such formal\nwritten agreement is executed, except for any breach of the terms of this Agreement. Neither Party shall have any obligation to commence or\ncontinue discussions or negotiations, to provide or receive any Evaluation Material, to reach or execute any agreement or to refrain from entering\ninto or continuing any discussions, negotiations and/or agreements at any time with any third party, unless and until a formal written agreement is\nexecuted by Protection One and Recipient, and only to the extent provided therein. Except as set forth in any formal written agreement executed by\nProtection One and Recipient, neither Recipient nor any of its Representatives shall be entitled to rely on any statement, promise, agreement or\nunderstanding, whether written or oral, made by Protection One or its Representatives or any custom, usage of trade or course of dealing or conduct\nbetween the Parties or their Representatives. In addition, Recipient understands and acknowledges that, except as may be provided in a written\ndefinitive agreement between the parties, neither Protection One nor any of its Representatives makes any representation or warranty, express or\nimplied, as to the accuracy or completeness of any Evaluation Material, and that neither Protection One nor any of its Representatives shall have any\nliability whatsoever to Recipient or to any of its Representatives relating to or resulting from the Evaluation Material or any errors therein or\nomissions therefrom.\n4. Diligence Process. Recipient shall cause its Representatives not to initiate or maintain contact with any stockholder, director, officer,\nemployee, partner, manager, member, agent, customer, supplier or lender of Protection One with respect to or relating in any way to the Transaction,\nor in which the Transaction is discussed or referred to directly or indirectly, except in accordance with guidelines that are mutually established by the\nParties and as provided in this Section. Recipient hereby agrees to submit or direct to the designee or designees of Protection One all\n(a) communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management or employee\nmeetings or conversations and (d) discussions or questions regarding procedures.\n5. Non-Solicitation and Non-Hire of Employees. Recipient acknowledges that the employees of Protection One are a key component to\nthe success of Protection One and that the preservation of the employee base of Protection One is critical to, among other things, the prospects of\nProtection One. Consequently, Recipient has agreed to the following non-solicitation and non-hire provisions. Recipient agrees that, for a period of\ntwo years from the date hereof, it shall not solicit any individual who is or becomes an employee of Protection One, and who is involved in the\ndiscussions between the Parties with respect to a Transaction or of whom Recipient becomes aware as a result of such discussions, to leave his or her\nemployment with Protection One; provided, however, that this restriction shall not apply to (i) any part-time employee, (ii) any employee who as of\nthe date hereof has already entered into employment discussions with Recipient or contacted Recipient to initiate such discussions, or (iii) any\nemployee who has sought employment with Recipient on his or her own initiative; provided further, that generalized solicitation of employment\nopportunities and generalized employee searches by headhunter/search firms (in either case not focused specifically on or directed in any way at the\nemployees or an employee of Protection One) shall not be deemed to cause a breach of this non-solicitation restriction. Recipient also agrees that, for\na period of two years from the date hereof, it shall not hire or otherwise engage any individual who is or becomes an employee\n-4-\nof Protection One and who is involved in the discussions between the Parties with respect to a Transaction or of whom Recipient becomes aware as a\nresult of such discussions; provided, however, that this restriction shall not apply to (i) any part-time employee, (ii) any employee who as of the date\nhereof has already entered into employment discussions with Recipient or contacted Recipient to initiate such discussions, or (iii) any employee who\nhas sought employment with Recipient on his or her own initiative, including pursuant to the generalized solicitation and searches permitted by this\nSection 5.\n6. Standstill. Recipient hereby agrees that, for a period of two years from the date hereof, Recipient and its Affiliates will not (and\nneither Recipient nor its Affiliates will assist, or provide or arrange financing to or for, others in order to), directly or indirectly, acting alone or in\nconcert with others, unless specifically invited on an unsolicited basis in advance by Protection One: (i) acquire or agree, offer, seek or propose to\nacquire (or request permission to do so) ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange\nAct) of any of the assets (other than in the ordinary course of business) or businesses of Protection One, any securities issued by Protection One, or\nany option or other right to acquire such ownership (including from a third party) or any other economic interest (through derivative securities or\notherwise) in Protection One; (ii) seek or propose to influence or control the management or the policies of Protection One or to obtain\nrepresentation on the board of directors (or any committee thereof) of Protection One, or solicit or participate in the solicitation of any proxies or\nconsents with respect to any securities of Protection One; (iii) seek or propose to have called, or cause to be called, any meeting of stockholders of\nProtection One; (iv) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the\nforegoing; (v) advise, assist, encourage, act as a financing source for or otherwise invest in any other person in connection with any of the foregoing\nactivities; (vi) propose or seek to propose any business combination, recapitalization, restructuring, liquidation, dissolution or other extraordinary\ntransaction with respect to Protection One or any of its subsidiaries; (vii) disclose any intention, plan or arrangement inconsistent with any of the\nforegoing; or (viii) seek to have Protection One amend or waive any provision of this Section 6. Recipient agrees to advise Protection One promptly\nof any inquiry or proposal made to it with respect to any of the foregoing, unless Recipient declines to discuss such inquiry or proposal with the\nparty making it. Recipient further agrees that, during the period referred to in the first sentence of this Section 6, neither it nor any of its Affiliates\nwill, without the written consent of Protection One, take any initiative or other action with respect to Protection One or any of the subsidiaries of\nProtection One that is reasonably likely to require Protection One to make a public announcement regarding (i) such initiative or other action,\n(ii) any of the activities, events or circumstances referred to in the preceding sentences of this Section 6, (iii) the possibility of a Transaction or any\nsimilar transaction between Protection One and any particular party or (iv) the possibility of Recipient or any other person acquiring control of\nProtection One, whether by means of a business combination or otherwise. Recipient represents to Protection One that neither it nor any of its\nAffiliates (other than individuals in their individual accounts and in de minimis amounts) owns (including, but not limited to, beneficial ownership as\ndefined in Rule 13d-3 under the Exchange Act) any securities of Protection One as of the date hereof.\n7. Remedies. Recipient acknowledges and agrees that money damages may not be a sufficient remedy for any breach of this Agreement\nby Recipient or any of its Representatives and that Protection One is entitled to seek equitable relief, including injunction\n-5-\nand specific performance, as a remedy of such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this\nAgreement, but shall be in addition to all other remedies available at law or equity to Protection One. In the event of litigation relating to this\nAgreement, if a court of competent jurisdiction determines that a Party or any of its Representatives has breached this Agreement, or if a Party does\nnot prevail in any such action, such breaching or non-prevailing Party shall be liable for and pay to the other Party on demand promptly following\nthe submission of supporting documents the reasonable and documented legal fees and expenses incurred by the non-breaching or prevailing Party in\nconnection with such litigation, including any appeal therefrom. The restrictions expressed in this Agreement in no way supersede or eliminate any\nrights which Protection One may have pursuant to Federal or state law pertaining to trade secrets or proprietary information and, in the event that\nany such Federal or state law provides greater protections of any Evaluation Material than the protections set forth in this Agreement, such greater\nprotections shall apply to such Evaluation Material.\n8. Indemnification. Recipient agrees to indemnify, defend and hold harmless Protection One from and against any and all losses,\ndamages, liabilities, assessments, costs, charges or claims (including without limitation reasonable and documented attorneys’ fees and costs)\nincurred or suffered by Protection One as a result of or arising out of any unauthorized or improper use or disclosure by Recipient or any of its\nRepresentatives of any Evaluation Material or any breach by Recipient or any of its Representatives of the obligations of Recipient under this\nAgreement. The foregoing indemnification provision is in addition to, and not in derogation of, any statutory, equitable or common law remedy that\nProtection One may have.\n9. Certain Definitions.\n“Affiliate” has the meaning set forth in Rule 12b-2 of the regulations promulgated under the Exchange Act.\n“Exchange Act” means the U.S . Securities Exchange Act of 1934, as amended.\n“Representatives” of a Party means the directors, officers, partners, managers, members, patrons, employees, advisors, agents and other\nrepresentatives of such Party, including attorneys, accountants, actuaries, consultants and financial advisors, debt financing sources but specifically\nexcluding any source of equity financing (unless expressly approved in writing by the other Party).\n10. Affiliates. Notwithstanding anything in this Agreement to the contrary, Protection One agrees that, to the extent Recipient or its\nRepresentatives do not disclose the Evaluation Material, directly or indirectly, to entities controlled or otherwise managed, directly or indirectly, by\nyou, none of the terms of this Agreement shall apply to such entities.\n11. Waivers and Amendments. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as\na waiver thereof, nor shall any single or partial exercise thereof preclude any other exercise thereof or the exercise of any other right, power or\nprivilege hereunder. No alteration, amendment, change or supplement hereto shall be binding or effective unless the same is set forth in writing\nsigned by a duly authorized\n-6-\nrepresentative of each Party. No provision hereof or right hereunder may be waived except by a separate written letter executed by a duly authorized\nrepresentative of the waiving Party, which writing expressly waives an identified portion of this Agreement.\n12. Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this\nAgreement shall be in writing and shall be deemed to have been given when delivered personally to the recipient, two business days after being sent\nto the recipient by reputable intercontinental courier service (charges prepaid) or five business days after being mailed to the recipient by certified or\nregistered mail, return receipt requested and postage prepaid. Such notices, demands and other communications shall be sent to each Party at the\naddress indicated on the signature page to this Agreement or to such other address or to the attention of such other person as the recipient Party has\nspecified by prior written notice to the sending Party.\n13. Choice of Law/Consent to Jurisdiction. The validity, interpretation, performance and enforcement of this Agreement shall be\ngoverned by the laws of the State of Delaware without regard to the conflicts of laws principles thereof. Each Party hereby irrevocably and\nunconditionally consents to the exclusive jurisdiction of the U.S. federal and state courts in the City of Wilmington, Delaware for any action, suit or\nproceeding arising out of or related hereto. Each Party hereto further hereby irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of or relating to this Agreement in the U.S . federal and state courts of the City of Wilmington,\nDelaware and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or\nproceeding brought in any such court has been brought in an inconvenient forum.\n14. Severability. If any provision or portion of this Agreement should be determined by any court or agency of competent jurisdiction to\nbe invalid, illegal or unreasonable, in whole or in part in any jurisdiction, and such determination should become final, such provision or portion\nshall be deemed to be severed in such jurisdiction, but only to the extent required to render the remaining provisions and portions of this Agreement\nenforceable, and this Agreement as thus amended shall be enforced in such jurisdiction to give effect to the intention of the Parties insofar as that is\npossible, and further, the Agreement shall continue without amendment in full force and effect in all other jurisdictions. In the event of any such\ndetermination, the Parties shall negotiate in good faith to modify this Agreement to fulfill as closely as possible the original intents and purposes\nhereof.\n15. Insider Trading. Recipient acknowledges that Protection One is an issuer with securities registered pursuant to the Exchange Act\nand that the disclosure of nonpublic information regarding Protection One or any of its subsidiaries by Recipient or trading in the securities of\nProtection One by Recipient while in the possession of such information may, depending on the facts and circumstances, subject Recipient to\nliability under certain U.S . securities laws.\n16. Construction. For purposes of Section 1 through and including Section 7 hereof, reference to Recipient shall also include the\nsubsidiaries and Affiliates of Recipient, and Recipient will be responsible for any breach of the provisions of this Agreement by its\n-7-\nsubsidiaries and Affiliates and any other person to whom Recipient (or its Representatives) provides any Evaluation Material. The term “person” as\nused in this Agreement shall be interpreted broadly to include the media and any corporation, group, individual or other entity. The word “including”\n(and all variations) shall mean including without limitation. The Parties have participated jointly in the negotiation and drafting of this Agreement. In\nthe event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no\npresumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.\nAny reference to any U.S . federal, state, local or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated\nthereunder, unless the context requires otherwise.\n17. Counterparts. For the convenience of the Parties, any number of counterparts of this Agreement may be executed by the Parties\nhereto. Each such counterpart shall be, and shall be deemed to be, an original instrument, but all such counterparts taken together shall constitute one\nand the same Agreement. A facsimile or .pdf or similar electronic copy of this Agreement or any signatures hereon shall be considered as originals\nfor all purposes.\n18. Successors and Assigns. The benefits of this Agreement shall inure to the respective successors and assigns of the Parties hereto,\nand the obligations and liabilities assumed in this Agreement by the Parties hereto shall be binding upon their respective successors and assigns.\n19. Headings. The headings to the Sections and subsections contained herein are for identification purposes only and are not to be\nconstrued as part of this Agreement.\n20. Entire Agreement. This Agreement embodies the entire agreement and understanding of the Parties hereto and supersedes any and\nall prior agreements, arrangements and understandings, written or oral, relating to the matters provided for herein, including the Confidentiality\nAgreement dated July 15, 2008 between Protection One, Inc. and GTCR Golder Rauner, LLC.\n21. Term. Unless a shorter period of time is specified elsewhere in this Agreement, all obligations of the Parties shall continue until the\nthird anniversary of the date hereof.\n[Signature Page Follows]\n-8-\nIN WITNESS WHEREOF, the Parties hereto have executed or caused this Confidentiality Agreement to be executed by their duly\nauthorized officers as of the day and year first written above.\nPROTECTION ONE, INC.\nBy:\n/s/ Eric Griffin\nName:\nERIC GRIFFIN\nTitle:\nVICE PRESIDENT\nAddress:\n1035 N. Third Street, Suite 101\nLawrence, Kansas 66044\nAttention: Darius G. Nevin\nFacsimile: 785.856.9950\nGTCR GOLDER RAUNER II, LLC\nBy:\n/s/ Christian McGrath\nName:\nChristian McGrath\nTitle:\nGeneral Counsel\nAddress:\n300 N. LaSalle Street\nSuite 5600\nChicago, IL 60654\nAttention: General Counsel\nFacsimile: 312.382.2201\n-9-	EX-99.(E)(6) 3 dex99e6.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(6)\nCONFIDENTIALITY AGREEMENT\nThis CONFIDENTIALITY AGREEMENT (this “Agreement”), dated as of January 25, 2010, is by and between Protection One, Inc.\n(“Protection One”) and GTCR Golden Rauner 11, LLC (“Recipient”). Protection One and Recipient are sometimes collectively referred to herein as\nthe “Parties” and individually as a “Party.” Certain capitalized terms used herein have the meanings set forth in Section 9.\nWHEREAS, Recipient desires that Protection One provide certain information in order to enable Recipient to evaluate the possibility of\nengaging in a strategic transaction (the “Transaction”);\nWHEREAS, during the course of any discussions or negotiations regarding the Transaction, Protection One will from time to time\nprovide Recipient with confidential information;\nWHEREAS, Recipient acknowledges and agrees that the confidential information provided by Protection One, before or after the\nexecution of this Agreement, is proprietary and highly confidential and that the unauthorized disclosure of such confidential information would\nresult in substantial and irreparable harm to Protection One, which harm would be extremely difficult to quantify; and\nWHEREAS, Protection One desires to preserve its employee base, business operations and capital structure free from the disruption that\ncould arise from the misuse of such confidential information.\nNOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of\nwhich are hereby acknowledged, the Parties hereto expressly agree as follows:\n1. Evaluation Material. The term “Evaluation Material” means any and all information, in any form or medium, written or oral,\nconcerning or relating to Protection One (whether prepared by Protection One, its Representatives or otherwise, and irrespective of the form or\nmeans of communication and whether it is labeled or otherwise identified as confidential) that is furnished to or on behalf of Recipient by or on\nbehalf of Protection One, including without limitation all oral and written information relating to financial statements, projections, evaluations,\nplans, programs, customers, suppliers, facilities, equipment and other assets, products, processes, manufacturing, marketing, research and\ndevelopment, trade secrets, know-how, patent applications that have not been published, technology and any other confidential information or\nintellectual property of Protection One. In addition, “Evaluation Material” shall be deemed to include all notes, analyses, studies, interpretations,\nmemoranda and other documents, materials or reports (in any form or medium) prepared by Recipient or any of its Representatives that contain,\nreflect or are based upon, in whole or part, the information furnished to or on behalf of Recipient as contemplated hereby. The term “Evaluation\nMaterial” shall not include information that: (a) is or becomes available to the public generally, other than as a result of disclosure by Recipient or\none of its Representatives in breach of the terms of this\nAgreement; (b) becomes available to Recipient from a source other than Protection One or one of its Representatives, including without limitation\nprior to the date hereof, provided that such source is not known by the Recipient after reasonable inquiry to be bound by a confidentiality agreement\nor to have a contractual, legal or fiduciary obligation of confidentiality to Protection One or any other person with respect to such information; or\n(c) has been independently acquired or developed by Recipient without using any Evaluation Material or violating any of its obligations under this\nAgreement.\n2. Use of Evaluation Material and Confidentiality.\n(a) The Recipient agrees that it and its Representatives shall use the Evaluation Material solely for the purpose of evaluating and negotiating\nthe possible Transaction, that neither Recipient nor any of its Representatives will use any of the Evaluation Material in any way that could be\n(directly or indirectly) detrimental to Protection One, and that the Evaluation Material will be kept confidential and that neither Recipient nor any of\nits Representatives will disclose any Evaluation Material in any manner whatsoever; provided, however, that Recipient may disclose Evaluation\nMaterial as follows: (i) to such of its Representatives who need such information for the purpose of evaluating and negotiating the possible\nTransaction, it being understood that such Representatives shall be informed in advance by Recipient of the confidential nature of such information;\n(ii) as expressly contemplated by this Agreement; and (iii) in all other cases, only if and to the extent that Protection One gives its prior written\nconsent to such disclosure.\n(b) As a condition to the furnishing of Evaluation Material to the Representatives of Recipient, Recipient shall cause its Representatives to\ntreat such information in accordance with the provisions of this Agreement and to perform or to comply with the obligations of Recipient with\nrespect to the Evaluation Material as contemplated hereby. Recipient agrees that it will be fully responsible for any breach of any of the provisions of\nthis Agreement by its Representatives.\n(c) Recipient agrees to take all reasonable steps to keep the Evaluation Material and any copies thereof secure and in such a way so as to\nprevent unauthorized access by any third party.\n(d) Recipient agrees that, without the prior written consent of Protection One, except as expressly permitted hereunder, Recipient and its\nRepresentatives shall not disclose to any person, prior to the time of public announcement by Protection One and Recipient of a definitive agreement\nbetween Recipient and Protection One with respect to a Transaction, the fact that the Evaluation Material has been made available to it/them, the fact\nthat discussions or negotiations are taking place or have taken place concerning a possible Transaction between the Parties, the existence of this\nAgreement or anything that might identify Protection One as exploring or having explored a possible Transaction or any similar transaction with any\nparticular party; provided, however, that Recipient may make such disclosure as it determines in good faith and upon the advice of counsel is\nrequired by law or the applicable rules of any national securities exchange or other market or reporting system (in which event Recipient shall use\nreasonable efforts to consult with Protection One as early as possible prior to any such disclosure regarding the nature, timing, extent and form of\nsuch disclosure).\n_2-\n(e) Recipient agrees that, without the prior written consent of Protection One, except as expressly permitted hereunder, Recipient and its\nRepresentatives shall not disclose to any other person (including, without limitation, by issuing a press release or otherwise making any public\nstatement) any of the terms, conditions or other information with respect to the Transaction, including the status thereof; provided, however, that\nRecipient may make such disclosure as it determines in good faith and upon the advice of counsel is required by law or the applicable rules of any\nnational securities exchange or other market or reporting system (in which event Recipient shall use reasonable efforts to consult with Protection\nOne as early as possible prior to any such disclosure regarding the nature, timing, extent and form of such disclosure).\n(f) If Recipient or any of its Representatives are requested or required to disclose any Evaluation Material by interrogatories or requests for\ninformation or other documents in any legal proceeding, subpoena, civil investigative demand or other similar process, to the extent legally\npermissible, Recipient shall provide Protection One with prompt written notice of any such request or requirement so that Protection One has an\nopportunity to seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement If Protection One\nwaives compliance with the provisions of this Agreement with respect to a specific request or requirement, Recipient and its Representatives shall\ndisclose only that portion of the Evaluation Material that is covered by such waiver and which is necessary to disclose in order to comply with such\nrequest or requirement. If (in the absence of a waiver by Protection One) Protection One has not secured a protective order or other appropriate\nremedy, and Recipient or one of its Representatives is nonetheless then legally compelled to disclose any Evaluation Material, Recipient or such\nRepresentative may, without liability hereunder, disclose only that portion of the Evaluation Material that is legally compelled to be disclosed.\n(g) If either Party hereto decides that it does not desire to proceed with the Transaction, then it shall promptly notify the other Party. Under\nsuch circumstances, upon the written request of Protection One, Recipient shall promptly destroy or deliver or cause to be delivered to Protection\nOne all Evaluation Material furnished to it or to any of its Representatives, together with all copies of such Evaluation Material (including, without\nlimitation, electronic copies), in the possession or control of Recipient or in the possession or control of any of its Representatives, and an officer of\nRecipient shall certify promptly in writing to Protection One that all such Evaluation Material has been destroyed or returned. Recipient nonetheless\nshall be entitled to retain a copy of all Evaluation Material of the Company in its legal files for use solely in connection with any litigation,\narbitration or like action between the Parties or involving one or both Parties related thereto. Notwithstanding the return, destruction or preservation\nof the Evaluation Material as contemplated by this subsection, Recipient and its Representatives will continue to be bound by the terms of this\nAgreement with respect thereto, including all obligations of confidentiality.\n(h) Nothing herein shall be deemed to limit or restrict Recipient from disclosing any information in any action or proceeding by Recipient to\nenforce any rights that Recipient may have against Protection One under this Agreement.\n3. No Liability, Reliance or Obligation. Each Party hereto understands and acknowledges that the other Party shall not be committed or\nliable in any way with respect to any\n_3-\nTransaction or to any matters discussed or negotiated unless and until a formal written agreement with respect thereto is executed by an authorized\nofficer of each Party, and that neither Party shall have any liability to the other Party in the event that, for any reason whatsoever, no such formal\nwritten agreement is executed, except for any breach of the terms of this Agreement. Neither Party shall have any obligation to commence or\ncontinue discussions or negotiations, to provide or receive any Evaluation Material, to reach or execute any agreement or to refrain from entering\ninto or continuing any discussions, negotiations and/or agreements at any time with any third party, unless and until a formal written agreement is\nexecuted by Protection One and Recipient, and only to the extent provided therein. Except as set forth in any formal written agreement executed by\nProtection One and Recipient, neither Recipient nor any of its Representatives shall be entitled to rely on any statement, promise, agreement or\nunderstanding, whether written or oral, made by Protection One or its Representatives or any custom, usage of trade or course of dealing or conduct\nbetween the Parties or their Representatives. In addition, Recipient understands and acknowledges that, except as may be provided in a written\ndefinitive agreement between the parties, neither Protection One nor any of its Representatives makes any representation or warranty, express or\nimplied, as to the accuracy or completeness of any Evaluation Material, and that neither Protection One nor any of its Representatives shall have any\nliability whatsoever to Recipient or to any of its Representatives relating to or resulting from the Evaluation Material or any errors therein or\nomissions therefrom.\n4. Diligence Process. Recipient shall cause its Representatives not to initiate or maintain contact with any stockholder, director, officer,\nemployee, partner, manager, member, agent, customer, supplier or lender of Protection One with respect to or relating in any way to the Transaction,\nor in which the Transaction is discussed or referred to directly or indirectly, except in accordance with guidelines that are mutually established by the\nParties and as provided in this Section. Recipient hereby agrees to submit or direct to the designee or designees of Protection One all\n(a) communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management or employee\nmeetings or conversations and (d) discussions or questions regarding procedures.\n5. Non-Solicitation and Non-Hire of Employees. Recipient acknowledges that the employees of Protection One are a key component to\nthe success of Protection One and that the preservation of the employee base of Protection One is critical to, among other things, the prospects of\nProtection One. Consequently, Recipient has agreed to the following non-solicitation and non-hire provisions. Recipient agrees that, for a period of\ntwo years from the date hereof, it shall not solicit any individual who is or becomes an employee of Protection One, and who is involved in the\ndiscussions between the Parties with respect to a Transaction or of whom Recipient becomes aware as a result of such discussions, to leave his or her\nemployment with Protection One; provided, however, that this restriction shall not apply to (i) any part-time employee, (ii) any employee who as of\nthe date hereof has already entered into employment discussions with Recipient or contacted Recipient to initiate such discussions, or (iii) any\nemployee who has sought employment with Recipient on his or her own initiative; provided further, that generalized solicitation of employment\nopportunities and generalized employee searches by headhunter/search firms (in either case not focused specifically on or directed in any way at the\nemployees or an employee of Protection One) shall not be deemed to cause a breach of this non-solicitation restriction. Recipient also agrees that, for\na period of two years from the date hereof, it shall not hire or otherwise engage any individual who is or becomes an employee\n \n \n \n_4-\nof Protection One and who is involved in the discussions between the Parties with respect to a Transaction or of whom Recipient becomes aware as a\nresult of such discussions; provided, however, that this restriction shall not apply to (i) any part-time employee, (ii) any employee who as of the date\nhereof has already entered into employment discussions with Recipient or contacted Recipient to initiate such discussions, or (iii) any employee who\nhas sought employment with Recipient on his or her own initiative, including pursuant to the generalized solicitation and searches permitted by this\nSection 5.\n6. Standstill. Recipient hereby agrees that, for a period of two years from the date hereof, Recipient and its Affiliates will not (and\nneither Recipient nor its Affiliates will assist, or provide or arrange financing to or for, others in order to), directly or indirectly, acting alone or in\nconcert with others, unless specifically invited on an unsolicited basis in advance by Protection One: (i) acquire or agree, offer, seek or propose to\nacquire (or request permission to do so) ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange\nAct) of any of the assets (other than in the ordinary course of business) or businesses of Protection One, any securities issued by Protection One, or\nany option or other right to acquire such ownership (including from a third party) or any other economic interest (through derivative securities or\notherwise) in Protection One; (ii) seek or propose to influence or control the management or the policies of Protection One or to obtain\nrepresentation on the board of directors (or any committee thereof) of Protection One, or solicit or participate in the solicitation of any proxies or\nconsents with respect to any securities of Protection One; (iii) seek or propose to have called, or cause to be called, any meeting of stockholders of\nProtection One; (iv) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the\nforegoing; (v) advise, assist, encourage, act as a financing source for or otherwise invest in any other person in connection with any of the foregoing\nactivities; (vi) propose or seek to propose any business combination, recapitalization, restructuring, liquidation, dissolution or other extraordinary\ntransaction with respect to Protection One or any of its subsidiaries; (vii) disclose any intention, plan or arrangement inconsistent with any of the\nforegoing; or (viii) seek to have Protection One amend or waive any provision of this Section 6. Recipient agrees to advise Protection One promptly\nof any inquiry or proposal made to it with respect to any of the foregoing, unless Recipient declines to discuss such inquiry or proposal with the\nparty making it. Recipient further agrees that, during the period referred to in the first sentence of this Section 6, neither it nor any of its Affiliates\nwill, without the written consent of Protection One, take any initiative or other action with respect to Protection One or any of the subsidiaries of\nProtection One that is reasonably likely to require Protection One to make a public announcement regarding (i) such initiative or other action,\n(ii) any of the activities, events or circumstances referred to in the preceding sentences of this Section 6, (iii) the possibility of a Transaction or any\nsimilar transaction between Protection One and any particular party or (iv) the possibility of Recipient or any other person acquiring control of\nProtection One, whether by means of a business combination or otherwise. Recipient represents to Protection One that neither it nor any of its\nAffiliates (other than individuals in their individual accounts and in de minimis amounts) owns (including, but not limited to, beneficial ownership as\ndefined in Rule 13d-3 under the Exchange Act) any securities of Protection One as of the date hereof.\n7. Remedies. Recipient acknowledges and agrees that money damages may not be a sufficient remedy for any breach of this Agreement\nby Recipient or any of its Representatives and that Protection One is entitled to seek equitable relief, including injunction\n_5.\nand specific performance, as a remedy of such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this\nAgreement, but shall be in addition to all other remedies available at law or equity to Protection One. In the event of litigation relating to this\nAgreement, if a court of competent jurisdiction determines that a Party or any of its Representatives has breached this Agreement, or if a Party does\nnot prevail in any such action, such breaching or non-prevailing Party shall be liable for and pay to the other Party on demand promptly following\nthe submission of supporting documents the reasonable and documented legal fees and expenses incurred by the non-breaching or prevailing Party in\nconnection with such litigation, including any appeal therefrom. The restrictions expressed in this Agreement in no way supersede or eliminate any\nrights which Protection One may have pursuant to Federal or state law pertaining to trade secrets or proprietary information and, in the event that\nany such Federal or state law provides greater protections of any Evaluation Material than the protections set forth in this Agreement, such greater\nprotections shall apply to such Evaluation Material.\n8. Indemnification. Recipient agrees to indemnify, defend and hold harmless Protection One from and against any and all losses,\ndamages, liabilities, assessments, costs, charges or claims (including without limitation reasonable and documented attorneys’ fees and costs)\nincurred or suffered by Protection One as a result of or arising out of any unauthorized or improper use or disclosure by Recipient or any of its\nRepresentatives of any Evaluation Material or any breach by Recipient or any of its Representatives of the obligations of Recipient under this\nAgreement. The foregoing indemnification provision is in addition to, and not in derogation of, any statutory, equitable or common law remedy that\nProtection One may have.\n9. Certain Definitions.\n“Affiliate” has the meaning set forth in Rule 12b-2 of the regulations promulgated under the Exchange Act.\n“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.\n“Representatives” of a Party means the directors, officers, partners, managers, members, patrons, employees, advisors, agents and other\nrepresentatives of such Party, including attorneys, accountants, actuaries, consultants and financial advisors, debt financing sources but specifically\nexcluding any source of equity financing (unless expressly approved in writing by the other Party).\n10. Affiliates. Notwithstanding anything in this Agreement to the contrary, Protection One agrees that, to the extent Recipient or its\nRepresentatives do not disclose the Evaluation Material, directly or indirectly, to entities controlled or otherwise managed, directly or indirectly, by\nyou, none of the terms of this Agreement shall apply to such entities.\n11. Waivers and Amendments. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as\na waiver thereof, nor shall any single or partial exercise thereof preclude any other exercise thereof or the exercise of any other right, power or\nprivilege hereunder. No alteration, amendment, change or supplement hereto shall be binding or effective unless the same is set forth in writing\nsigned by a duly authorized\n-6-\nrepresentative of each Party. No provision hereof or right hereunder may be waived except by a separate written letter executed by a duly authorized\nrepresentative of the waiving Party, which writing expressly waives an identified portion of this Agreement.\n12. Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this\nAgreement shall be in writing and shall be deemed to have been given when delivered personally to the recipient, two business days after being sent\nto the recipient by reputable intercontinental courier service (charges prepaid) or five business days after being mailed to the recipient by certified or\nregistered mail, return receipt requested and postage prepaid. Such notices, demands and other communications shall be sent to each Party at the\naddress indicated on the signature page to this Agreement or to such other address or to the attention of such other person as the recipient Party has\nspecified by prior written notice to the sending Party.\n13. Choice of Law/Consent to Jurisdiction. The validity, interpretation, performance and enforcement of this Agreement shall be\ngoverned by the laws of the State of Delaware without regard to the conflicts of laws principles thereof. Each Party hereby irrevocably and\nunconditionally consents to the exclusive jurisdiction of the U.S. federal and state courts in the City of Wilmington, Delaware for any action, suit or\nproceeding arising out of or related hereto. Each Party hereto further hereby irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of or relating to this Agreement in the U.S. federal and state courts of the City of Wilmington,\nDelaware and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or\nproceeding brought in any such court has been brought in an inconvenient forum.\n14. Severability. If any provision or portion of this Agreement should be determined by any court or agency of competent jurisdiction to\nbe invalid, illegal or unreasonable, in whole or in part in any jurisdiction, and such determination should become final, such provision or portion\nshall be deemed to be severed in such jurisdiction, but only to the extent required to render the remaining provisions and portions of this Agreement\nenforceable, and this Agreement as thus amended shall be enforced in such jurisdiction to give effect to the intention of the Parties insofar as that is\npossible, and further, the Agreement shall continue without amendment in full force and effect in all other jurisdictions. In the event of any such\ndetermination, the Parties shall negotiate in good faith to modify this Agreement to fulfill as closely as possible the original intents and purposes\nhereof.\n15. Insider Trading. Recipient acknowledges that Protection One is an issuer with securities registered pursuant to the Exchange Act\nand that the disclosure of nonpublic information regarding Protection One or any of its subsidiaries by Recipient or trading in the securities of\nProtection One by Recipient while in the possession of such information may, depending on the facts and circumstances, subject Recipient to\nliability under certain U.S. securities laws.\n16. Construction. For purposes of Section 1 through and including Section 7 hereof, reference to Recipient shall also include the\nsubsidiaries and Affiliates of Recipient, and Recipient will be responsible for any breach of the provisions of this Agreement by its\n_7-\nsubsidiaries and Affiliates and any other person to whom Recipient (or its Representatives) provides any Evaluation Material. The term “person” as\nused in this Agreement shall be interpreted broadly to include the media and any corporation, group, individual or other entity. The word “including”\n(and all variations) shall mean including without limitation. The Parties have participated jointly in the negotiation and drafting of this Agreement. In\nthe event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no\npresumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.\nAny reference to any U.S. federal, state, local or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated\nthereunder, unless the context requires otherwise.\n17. Counterparts. For the convenience of the Parties, any number of counterparts of this Agreement may be executed by the Parties\nhereto. Each such counterpart shall be, and shall be deemed to be, an original instrument, but all such counterparts taken together shall constitute one\nand the same Agreement. A facsimile or .pdf or similar electronic copy of this Agreement or any signatures hereon shall be considered as originals\nfor all purposes.\n18. Successors and Assigns. The benefits of this Agreement shall inure to the respective successors and assigns of the Parties hereto,\nand the obligations and liabilities assumed in this Agreement by the Parties hereto shall be binding upon their respective successors and assigns.\n19. Headings. The headings to the Sections and subsections contained herein are for identification purposes only and are not to be\nconstrued as part of this Agreement.\n20. Entire Agreement. This Agreement embodies the entire agreement and understanding of the Parties hereto and supersedes any and\nall prior agreements, arrangements and understandings, written or oral, relating to the matters provided for herein, including the Confidentiality\nAgreement dated July 15, 2008 between Protection One, Inc. and GTCR Golder Rauner, LLC.\n21. Term. Unless a shorter period of time is specified elsewhere in this Agreement, all obligations of the Parties shall continue until the\nthird anniversary of the date hereof.\n[Signature Page Follows]\n-8-\nIN WITNESS WHEREOF, the Parties hereto have executed or caused this Confidentiality Agreement to be executed by their duly authorized officers as of the day and year first written above.\nPROTECTION ONE, INC.\nBy: /s/ Eric Griffin\nName: ERIC GRIFFIN\nTitle: VICE PRESIDENT\nAddress:\n1035 N. Third Street, Suite 101\nLawrence, Kansas 66044\nAttention: Darius G. Nevin\nFacsimile: 785.856.9950\nGTCR GOLDER RAUNERII, LLC\nBy: /s/ Christian McGrath\nName: Christian McGrath\nTitle: General Counsel\nAddress:\n300 N. LaSalle Street\nSuite 5600\nChicago, IL 60654\nAttention: General Counsel\nFacsimile: 312.382.2201	X-99.(E)(6) 3 dex99e6.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(6)\nCONFIDENTIALITY AGREEMENT\nThis CONFIDENTIALITY AGREEMENT (this "Agreement"), dated as of January 25, 2010, is by and between Protection One, Inc.\n("Protection One") and GTCR Golden Rauner II, LLC ("Recipient"). Protection One and Recipient are sometimes collectively referred to herein as\nthe "Parties" and individually as a "Party.." Certain capitalized terms used herein have the meanings set forth in Section 9.\nWITNESSETH\nWHEREAS, Recipient desires that Protection One provide certain information in order to enable Recipient to evaluate the possibility of\nengaging in a strategic transaction (the "Transaction");\nWHEREAS, during the course of any discussions or negotiations regarding the Transaction, Protection One will from time to time\nprovide Recipient with confidential information;\nWHEREAS, Recipient acknowledges and agrees that the confidential information provided by Protection One, before or after the\nexecution of this Agreement, is proprietary and highly confidential and that the unauthorized disclosure of such confidential information would\nresult in substantial and irreparable harm to Protection One, which harm would be extremely difficult to quantify; and\nWHEREAS, Protection One desires to preserve its employee base, business operations and capital structure free from the disruption\nthat\ncould arise from the misuse of such confidential information.\nNOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of\nwhich are hereby acknowledged, the Parties hereto expressly agree as follows:\n1. Evaluation Material. The term "Evaluation Material" means any and all information, in any form or medium, written or oral,\nconcerning or relating to Protection One (whether prepared by Protection One, its Representatives or otherwise, and irrespective of the form or\nmeans of communication and whether it is labeled or otherwise identified as confidential) that is furnished to or on behalf of Recipient by or on\nbehalf of Protection One, including without limitation all oral and written information relating to financial statements, projections, evaluations,\nplans, programs, customers, suppliers, facilities, equipment and other assets, products, processes, manufacturing, marketing, research and\ndevelopment, trade secrets, know-how, patent applications that have not been published, technology and any other confidential information or\nintellectual property of Protection One. In addition, "Evaluation Material" shall be deemed to include all notes, analyses, studies, interpretations,\nmemoranda and other documents, materials or reports (in any form or medium) prepared by Recipient or any of its Representatives that contain,\nreflect\nor\nare based upon, in whole or part, the information furnished to or on behalf of Recipient as contemplated hereby. The term "Evaluation\nMaterial" shall not include information that: (a) is or becomes available to the public generally, other than as a result of disclosure by Recipient or\none of its Representatives in breach of the terms of this\nAgreement; (b) becomes available to Recipient from a source other than Protection One or one of its Representatives, including without limitation\nprior to the date hereof, provided that such source is not known by the Recipient after reasonable inquiry to be bound by a confidentiality agreement\nor\nto have a contractual, legal or fiduciary obligation of confidentiality to Protection One or any other person with respect to such information; or\n(c) has been independently acquired or developed by Recipient without using any Evaluation Material or violating any of its obligations under this\nAgreement.\n2. Use of Evaluation Material and Confidentiality..\n(a) The Recipient agrees that it and its Representatives shall use the Evaluation Material solely for the purpose of evaluating and negotiating\nthe possible Transaction, that neither Recipient nor any of its Representatives will use any of the Evaluation Material in any way that could be\n(directly or indirectly) detrimental to Protection One, and that the Evaluation Material will be kept confidential and that neither Recipient nor any\nof\nits Representatives will disclose any Evaluation Material in any manner whatsoever; provided, however, that Recipient may disclose Evaluation\nMaterial as follows: (i) to such of its Representatives who need such information for the purpose of evaluating and negotiating the possible\nTransaction, it being understood that such Representatives shall be informed in advance by Recipient of the confidential nature of such information;\n(ii) as expressly contemplated by this Agreement; and (iii) in all other cases, only if and to the extent that Protection One gives its prior written\nconsent to such disclosure.\n(b) As a condition to the furnishing of Evaluation Material to the Representatives of Recipient, Recipient shall cause its Representatives to\ntreat such information in accordance with the provisions of this Agreement and to perform or to comply with the obligations of Recipient with\nrespect to the Evaluation Material as contemplated hereby. Recipient agrees that it will be fully responsible for any breach of any of the provisions\nof\nthis Agreement by its Representatives.\n(c) Recipient agrees to take all reasonable steps to keep the Evaluation Material and any copies thereof secure and in such a way so as to\nprevent unauthorized access by any third party.\n(d) Recipient agrees that, without the prior written consent of Protection One, except as expressly permitted hereunder, Recipient and its\nRepresentatives shall not disclose to any person, prior to the time of public announcement by Protection One and Recipient of a definitive agreement\nbetween Recipient and Protection One with respect to a Transaction, the fact that the Evaluation Materia has been made available to it/them, the\nfact\nthat discussions or negotiations are taking place or have taken place concerning a possible Transaction between the Parties, the existence of this\nAgreement or anything that might identify Protection One as exploring or having explored a possible Transaction or any similar transaction with any\nparticular party; provided, however, that Recipient may make such disclosure as it determines in good faith and upon the advice of counsel is\nrequired by law or the applicable rules of any national securities exchange or other market or reporting system (in which event Recipient shall use\nreasonable efforts to consult with Protection One as early as possible prior to any such disclosure regarding the nature, timing, extent and form of\nsuch disclosure).\n2\n(e) Recipient agrees that, without the prior written consent of Protection One, except as expressly permitted hereunder, Recipient and its\nRepresentatives shall not disclose to any other person (including, without limitation, by issuing a press release or otherwise making any public\nstatement) any of the terms, conditions or other information with respect to the Transaction, including the status thereof; provided, however,\nthat\nRecipient may make such disclosure as it determines in good faith and upon the advice of counsel is required by law or the applicable rules of any\nnational securities exchange or other market or reporting system (in which event Recipient shall use reasonable efforts to consult with Protection\nOne as early as possible prior to any such disclosure regarding the nature, timing, extent and form of such disclosure).\n(f) If Recipient or any of its Representatives are requested or required to disclose any Evaluation Material by interrogatories or requests for\ninformation or other documents in any legal proceeding, subpoena, civil investigative demand or other similar process, to the extent legally\npermissible, Recipient shall provide Protection One with prompt written notice of any such request or requirement so that Protection One has an\nopportunity to seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement If Protection One\nwaives compliance with the provisions of this Agreement with respect to a specific request or requirement, Recipient and its Representatives shall\ndisclose only that portion of the Evaluation Material that is covered by such waiver and which is necessary to disclose in order to comply with such\nrequest or requirement. If (in the absence of a waiver by Protection One) Protection One has not secured a protective order or other appropriate\nremedy, and Recipient or one of its Representatives is nonetheless then legally compelled to disclose any Evaluation Material, Recipient or such\nRepresentative may, without liability hereunder, disclose only that portion of the Evaluation Material that is legally compelled to be disclosed.\n(g) If either Party hereto decides that it does not desire to proceed with the Transaction, then it shall promptly notify the other Party. Under\nsuch circumstances, upon the written request of Protection One, Recipient shall promptly destroy or deliver or cause to be delivered to Protection\nOne all Evaluation Material furnished to it or to any of its Representatives, together with all copies of such Evaluation Material (including, without\nlimitation, electronic copies), in the possession or control of Recipient or in the possession or control of any of its Representatives, and an officer\nof\nRecipient shall certify promptly in writing to Protection One that all such Evaluation Material has been destroyed or returned. Recipient nonetheless\nshall be entitled to retain a copy of all Evaluation Material of the Company in its legal files for use solely in connection with any litigation,\narbitration or like action between the Parties or involving one or both Parties related thereto. Notwithstanding the return, destruction or preservation\nof the Evaluation Material as contemplated by this subsection, Recipient and its Representatives will continue to be bound by the terms of this\nAgreement with respect thereto, including all obligations of confidentiality.\n(h) Nothing herein shall be deemed to limit or restrict Recipient from disclosing any information in any action or proceeding by Recipient to\nenforce any rights that Recipient may have against Protection One under this Agreement.\n3. No Liability, Reliance or Obligation. Each Party hereto understands and acknowledges that the other Party shall not be committed or\nliable in any way with respect to any\n3\nTransaction or to any matters discussed or negotiated unless and until a formal written agreement with respect thereto is executed by an authorized\nofficer of each Party, and that neither Party shall have any liability to the other Party in the event that, for any reason whatsoever, no such formal\nwritten agreement is executed, except for any breach of the terms of this Agreement. Neither Party shall have any obligation to commence or\ncontinue discussions or negotiations, to provide or receive any Evaluation Material, to reach or execute any agreement or to refrain from entering\ninto or continuing any discussions, negotiations and/or agreements at any time with any third party, unless and until a formal written agreement is\nexecuted by Protection One and Recipient, and only to the extent provided therein. Except as set forth in any formal written agreement executed by\nProtection One and Recipient, neither Recipient nor any of its Representatives shall be entitled to rely on any statement, promise, agreement or\nunderstanding, whether written or oral, made by Protection One or its Representatives or any custom, usage of trade or course of dealing or conduct\nbetween the Parties or their Representatives. In addition, Recipient understands and acknowledges that, except as may be provided in a written\ndefinitive agreement between the parties, neither Protection One nor any of its Representatives makes any representation or warranty, express or\nimplied, as to the accuracy or completeness of any Evaluation Material, and that neither Protection One nor any of its Representatives shall have any\nliability whatsoever to Recipient or to any of its Representatives relating to or resulting from the Evaluation Material or any errors therein\nor\nomissions therefrom.\n4. Diligence Process. Recipient shall cause its Representatives not to initiate or maintain contact with any stockholder, director, officer,\nemployee, partner, manager, member, agent, customer, supplier or lender of Protection One with respect to or relating in any way to the Transaction,\nor in which the Transaction is discussed or referred to directly or indirectly, except in accordance with guidelines that are mutually established by the\nParties and as provided in this Section. Recipient hereby agrees to submit or direct to the designee or designees of Protection One all\n(a) communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management or employee\nmeetings or conversations and (d) discussions or questions regarding procedures.\n5. Non-Solicitation and Non-Hire of Employees. Recipient acknowledges that the employees of Protection One are a key component to\nthe success of Protection One and that the preservation of the employee base of Protection One is critical to, among other things, the prospects of\nProtection One. Consequently, Recipient has agreed to the following non-solicitation and non-hire provisions. Recipient agrees that, for a period of\ntwo years from the date hereof, it shall not solicit any individual who is or becomes an employee of Protection One, and who is involved in the\ndiscussions between the Parties with respect to a Transaction or of whom Recipient becomes aware as a result of such discussions, to leave his or her\nemployment with Protection One; provided, however, that this restriction shall not apply to (i) any part-time employee, (ii) any employee who as\nof\nthe date hereof has already entered into employment discussions with Recipient or contacted Recipient to initiate such discussions, or (iii) any\nemployee who has sought employment with Recipient on his or her own initiative; provided further, that generalized solicitation of employment\nopportunities and generalized employee searches by headhunter/search firms (in either case not focused specifically on or directed in any way at the\nemployees or an employee of Protection One) shall not be deemed to cause a breach of this non-solicitation restriction. Recipient also agrees that, for\na period of two years from the date hereof, it shall not hire or otherwise engage any individual who is or becomes an employee\n4\nof Protection One and who is involved in the discussions between the Parties with respect to a Transaction or of whom Recipient becomes aware as a\nresult of such discussions; provided, however, that this restriction shall not apply to (i) any part-time employee, (ii) any employee who as of the date\nhereof has already entered into employment discussions with Recipient or contacted Recipient to initiate such discussions, or (iii) any employee who\nhas sought employment with Recipient on his or her own initiative, including pursuant to the generalized solicitation and searches permitted by this\nSection 5.\n6. Standstill. Recipient hereby agrees that, for a period of two years from the date hereof, Recipient and its Affiliates will not (and\nneither Recipient nor its Affiliates will assist, or provide or arrange financing to or for, others in order to), directly or indirectly, acting alone or in\nconcert with others, unless specifically invited on an unsolicited basis in advance by Protection One: (i) acquire or agree, offer, seek or propose\nto\nacquire (or request permission to do so) ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange\nAct) of any of the assets (other than in the ordinary course of business) or businesses of Protection One, any securities issued by Protection One, or\nany option or other right to acquire such ownership (including from a third party) or any other economic interest (through derivative securities\nor\notherwise) in Protection One; (ii) seek or propose to influence or control the management or the policies of Protection One or to obtain\nrepresentation on the board of directors (or any committee thereof) of Protection One, or solicit or participate in the solicitation of any proxies\nor\nconsents with respect to any securities of Protection One; (iii) seek or propose to have called, or cause to be called, any meeting of stockholders of\nProtection One; (iv) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the\nforegoing; (v) advise, assist, encourage, act as a financing source for or otherwise invest in any other person in connection with any of the foregoing\nactivities; (vi) propose or seek to propose any business combination, recapitalization, restructuring, liquidation, dissolution or other extraordinary\ntransaction with respect to Protection One or any of its subsidiaries; (vii) disclose any intention, plan or arrangement inconsistent with any of the\nforegoing; or (viii) seek to have Protection One amend or waive any provision of this Section 6. Recipient agrees to advise Protection One promptly\nof any inquiry or proposal made to it with respect to any of the foregoing, unless Recipient declines to discuss such inquiry or proposal with the\nparty making it. Recipient further agrees that, during the period referred to in the first sentence of this Section 6, neither it nor any of its Affiliates\nwill, without the written consent of Protection One, take any initiative or other action with respect to Protection One or any of the subsidiaries of\nProtection One that is reasonably likely to require Protection One to make a public announcement regarding (i) such initiative or other action,\n(ii) any of the activities, events or circumstances referred to in the preceding sentences of this Section 6, (iii) the possibility of a Transaction or any\nsimilar transaction between Protection One and any particular party or (iv) the possibility of Recipient or any other person acquiring control of\nProtection One, whether by means of a business combination or otherwise. Recipient represents to Protection One that neither it nor any of its\nAffiliates (other than individuals in their individual accounts and in de minimis amounts) owns (including, but not limited to, beneficial ownership\nas\ndefined in Rule 13d-3 under the Exchange Act) any securities of Protection One as of the date hereof.\n7. Remedies. Recipient acknowledges and agrees that money damages may not be a sufficient remedy for any breach of this Agreement\nby Recipient or any of its Representatives and that Protection One is entitled to seek equitable relief, including injunction\n5\nand specific performance, as a remedy of such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this\nAgreement, but shall be in addition to all other remedies available at law or equity to Protection One. In the event of litigation relating to this\nAgreement, if a court of competent jurisdiction determines that a Party or any of its Representatives has breached this Agreement, or if a Party does\nnot prevail in any such action, such breaching or non-prevailing Party shall be liable for and pay to the other Party on demand promptly following\nthe submission of supporting documents the reasonable and documented legal fees and expenses incurred by the non-breaching or prevailing Party in\nconnection with such litigation, including any appeal therefrom. The restrictions expressed in this Agreement in no way supersede or eliminate any\nrights which Protection One may have pursuant to Federal or state law pertaining to trade secrets or proprietary information and, in the event that\nany such Federal or state law provides greater protections of any Evaluation Material than the protections set forth in this Agreement, such greater\nprotections shall apply to such Evaluation Material.\n8. Indemnification. Recipient agrees to indemnify, defend and hold harmless Protection One from and against any and all losses,\ndamages, liabilities, assessments, costs, charges or claims (including without limitation reasonable and documented attorneys' fees and costs)\nincurred or suffered by Protection One as a result of or arising out of any unauthorized or improper use or disclosure by Recipient or any of its\nRepresentatives of any Evaluation Material or any breach by Recipient or any of its Representatives of the obligations of Recipient under this\nAgreement. The foregoing indemnification provision is in addition to, and not in derogation of, any statutory, equitable or common law remedy that\nProtection One may have.\n9. Certain Definitions.\n"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations promulgated under the Exchange Act.\n"Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended.\n"Representatives" of a Party means the directors, officers, partners, managers, members, patrons, employees, advisors, agents and other\nrepresentatives of such Party, including attorneys, accountants, actuaries, consultants and financial advisors, debt financing sources but specifically\nexcluding any source of equity financing (unless expressly approved in writing by the other Party).\n10. Affiliates. Notwithstanding anything in this Agreement to the contrary, Protection One agrees that, to the extent Recipient or its\nRepresentatives do not disclose the Evaluation Material, directly or indirectly, to entities controlled or otherwise managed, directly or indirectly, by\nyou, none of the terms of this Agreement shall apply to such entities.\n11. Waivers and Amendments. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as\na\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other exercise thereof or the exercise of any other right, power or\nprivilege hereunder. No alteration, amendment, change or supplement hereto shall be binding or effective unless the same is set forth in writing\nsigned by a duly authorized\n6\nrepresentative of each Party. No provision hereof or right hereunder may be waived except by a separate written letter executed by a duly authorized\nrepresentative of the waiving Party, which writing expressly waives an identified portion of this Agreement.\n12. Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this\nAgreement shall be in writing and shall be deemed to have been given when delivered personally to the recipient, two business days after being sent\nto\nthe recipient by reputable intercontinental courier service (charges prepaid) or five business days after being mailed to the recipient by certified or\nregistered mail, return receipt requested and postage prepaid. Such notices, demands and other communications shall be sent to each Party at the\naddress indicated on the signature page to this Agreement or to such other address or to the attention of such other person as the recipient Party has\nspecified by prior written notice to the sending Party.\n13. Choice of Law/Consent to Jurisdiction. The validity, interpretation, performance and enforcement of this Agreement shall\nbe\ngoverned by the laws of the State of Delaware without regard to the conflicts of laws principles thereof. Each Party hereby irrevocably and\nunconditionally consents to the exclusive jurisdiction of the U.S. federal and state courts in the City of Wilmington, Delaware for any action, suit or\nproceeding arising out of or related hereto. Each Party hereto further hereby irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of or relating to this Agreement in the U.S. federal and state courts of the City of Wilmington,\nDelaware and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or\nproceeding brought in any such court has been brought in an inconvenient forum.\n14. Severability.. If any provision or portion of this Agreement should be determined by any court or agency of competent jurisdiction to\nbe invalid, illegal or unreasonable, in whole or in part in any jurisdiction, and such determination should become final, such provision or portion\nshall\nbe\ndeemed\nto\nbe\nsevered\nin\nsuch\njurisdiction,\nbut\nonly\nto\nthe\nextent\nrequired\nto\nrender\nthe\nremaining\nprovisions\nand\nportions\nof\nthis\nAgreement\nenforceable, and this Agreement as thus amended shall be enforced in such jurisdiction to give effect to the intention of the Parties insofar as that\nis\npossible, and further, the Agreement shall continue without amendment in full force and effect in all other jurisdictions. In the event of any such\ndetermination, the Parties shall negotiate in good faith to modify this Agreement to fulfill as closely as possible the original intents and purposes\nhereof.\n15. Insider Trading. Recipient acknowledges that Protection One is an issuer with securities registered pursuant to the Exchange Act\nand that the disclosure of nonpublic information regarding Protection One or any of its subsidiaries by Recipient or trading in the securities\nof\nProtection One by Recipient while in the possession of such information may, depending on the facts and circumstances, subject Recipient\nto\nliability under certain U.S. securities laws.\n16. Construction. For purposes of Section 1 through and including Section 7 hereof, reference to Recipient shall also include the\nsubsidiaries and Affiliates of Recipient, and Recipient will be responsible for any breach of the provisions of this Agreement by its\n7\nsubsidiaries and Affiliates and any other person to whom Recipient (or its Representatives) provides any Evaluation Material. The term "person" as\nused in this Agreement shall be interpreted broadly to include the media and any corporation, group, individual or other entity. The word "including"\n(and all variations) shall mean including without limitation. The Parties have participated jointly in the negotiation and drafting of this Agreement. In\nthe event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no\npresumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.\nAny reference to any U.S. federal, state, local or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated\nthereunder, unless the context requires otherwise.\n17. Counterparts. For the convenience of the Parties, any number of counterparts of this Agreement may be executed by the Parties\nhereto. Each such counterpart shall be, and shall be deemed to be, an original instrument, but all such counterparts taken together shall constitute one\nand the same Agreement. A facsimile or .pdf or similar electronic copy of this Agreement or any signatures hereon shall be considered as originals\nfor all purposes.\n18. Successors and Assigns. The benefits of this Agreement shall inure to the respective successors and assigns of the Parties hereto,\nand the obligations and liabilities assumed in this Agreement by the Parties hereto shall be binding upon their respective successors and assigns.\n19. Headings. The headings to the Sections and subsections contained herein are for identification purposes only and are not to be\nconstrued as part of this Agreement.\n20. Entire Agreement. This Agreement embodies the entire agreement and understanding of the Parties hereto and supersedes any and\nall prior agreements, arrangements and understandings, written or oral, relating to the matters provided for herein, including the Confidentiality\nAgreement dated July 15, 2008 between Protection One, Inc. and GTCR Golder Rauner, LLC.\n21. Term. Unless a shorter period of time is specified elsewhere in this Agreement, all obligations of the Parties shall continue until the\nthird anniversary of the date hereof.\n[Signature Page Follows]\n8\nIN WITNESS WHEREOF, the Parties hereto have executed or caused this Confidentiality Agreement to be executed by their duly\nauthorized officers as of the day and year first written above.\nPROTECTION ONE, INC.\nBy:\n/s/ Eric Griffin\nName:\nERIC GRIFFIN\nTitle:\nVICE PRESIDENT\nAddress:\n1035 N. Third Street, Suite 101\nLawrence, Kansas 66044\nAttention: Darius G. Nevin\nFacsimile: 785.856.9950\nGTCR GOLDER RAUNER II, LLC\nBy:\n/s/ Christian McGrath\nName:\nChristian McGrath\nTitle:\nGeneral Counsel\nAddress:\n300 N. LaSalle Street\nSuite 5600\nChicago, IL 60654\nAttention: General Counsel\nFacsimile: 312.382.2201\n9 -	EX-99.(E)(6) 3 dex99e6.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(6)\nCONFIDENTIALITY AGREEMENT\nThis CONFIDENTIALITY AGREEMENT (this “Agreement”), dated as of January 25, 2010, is by and between Protection One, Inc.\n(“Protection One”) and GTCR Golden Rauner II, LLC (“Recipient”). Protection One and Recipient are sometimes collectively referred to herein as\nthe “Parties” and individually as a “Party.” Certain capitalized terms used herein have the meanings set forth in Section 9.\nWITNESSETH\nWHEREAS, Recipient desires that Protection One provide certain information in order to enable Recipient to evaluate the possibility of\nengaging in a strategic transaction (the “Transaction”);\nWHEREAS, during the course of any discussions or negotiations regarding the Transaction, Protection One will from time to time\nprovide Recipient with confidential information;\nWHEREAS, Recipient acknowledges and agrees that the confidential information provided by Protection One, before or after the\nexecution of this Agreement, is proprietary and highly confidential and that the unauthorized disclosure of such confidential information would\nresult in substantial and irreparable harm to Protection One, which harm would be extremely difficult to quantify; and\nWHEREAS, Protection One desires to preserve its employee base, business operations and capital structure free from the disruption that\ncould arise from the misuse of such confidential information.\nNOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of\nwhich are hereby acknowledged, the Parties hereto expressly agree as follows:\n1. Evaluation Material. The term “Evaluation Material” means any and all information, in any form or medium, written or oral,\nconcerning or relating to Protection One (whether prepared by Protection One, its Representatives or otherwise, and irrespective of the form or\nmeans of communication and whether it is labeled or otherwise identified as confidential) that is furnished to or on behalf of Recipient by or on\nbehalf of Protection One, including without limitation all oral and written information relating to financial statements, projections, evaluations,\nplans, programs, customers, suppliers, facilities, equipment and other assets, products, processes, manufacturing, marketing, research and\ndevelopment, trade secrets, know-how, patent applications that have not been published, technology and any other confidential information or\nintellectual property of Protection One. In addition, “Evaluation Material” shall be deemed to include all notes, analyses, studies, interpretations,\nmemoranda and other documents, materials or reports (in any form or medium) prepared by Recipient or any of its Representatives that contain,\nreflect or are based upon, in whole or part, the information furnished to or on behalf of Recipient as contemplated hereby. The term “Evaluation\nMaterial” shall not include information that: (a) is or becomes available to the public generally, other than as a result of disclosure by Recipient or\none of its Representatives in breach of the terms of this\nAgreement; (b) becomes available to Recipient from a source other than Protection One or one of its Representatives, including without limitation\nprior to the date hereof, provided that such source is not known by the Recipient after reasonable inquiry to be bound by a confidentiality agreement\nor to have a contractual, legal or fiduciary obligation of confidentiality to Protection One or any other person with respect to such information; or\n(c) has been independently acquired or developed by Recipient without using any Evaluation Material or violating any of its obligations under this\nAgreement.\n2. Use of Evaluation Material and Confidentiality.\n(a) The Recipient agrees that it and its Representatives shall use the Evaluation Material solely for the purpose of evaluating and negotiating\nthe possible Transaction, that neither Recipient nor any of its Representatives will use any of the Evaluation Material in any way that could be\n(directly or indirectly) detrimental to Protection One, and that the Evaluation Material will be kept confidential and that neither Recipient nor any of\nits Representatives will disclose any Evaluation Material in any manner whatsoever; provided, however, that Recipient may disclose Evaluation\nMaterial as follows: (i) to such of its Representatives who need such information for the purpose of evaluating and negotiating the possible\nTransaction, it being understood that such Representatives shall be informed in advance by Recipient of the confidential nature of such information;\n(ii) as expressly contemplated by this Agreement; and (iii) in all other cases, only if and to the extent that Protection One gives its prior written\nconsent to such disclosure.\n(b) As a condition to the furnishing of Evaluation Material to the Representatives of Recipient, Recipient shall cause its Representatives to\ntreat such information in accordance with the provisions of this Agreement and to perform or to comply with the obligations of Recipient with\nrespect to the Evaluation Material as contemplated hereby. Recipient agrees that it will be fully responsible for any breach of any of the provisions of\nthis Agreement by its Representatives.\n(c) Recipient agrees to take all reasonable steps to keep the Evaluation Material and any copies thereof secure and in such a way so as to\nprevent unauthorized access by any third party.\n(d) Recipient agrees that, without the prior written consent of Protection One, except as expressly permitted hereunder, Recipient and its\nRepresentatives shall not disclose to any person, prior to the time of public announcement by Protection One and Recipient of a definitive agreement\nbetween Recipient and Protection One with respect to a Transaction, the fact that the Evaluation Material has been made available to it/them, the fact\nthat discussions or negotiations are taking place or have taken place concerning a possible Transaction between the Parties, the existence of this\nAgreement or anything that might identify Protection One as exploring or having explored a possible Transaction or any similar transaction with any\nparticular party; provided, however, that Recipient may make such disclosure as it determines in good faith and upon the advice of counsel is\nrequired by law or the applicable rules of any national securities exchange or other market or reporting system (in which event Recipient shall use\nreasonable efforts to consult with Protection One as early as possible prior to any such disclosure regarding the nature, timing, extent and form of\nsuch disclosure).\n-2-\n(e) Recipient agrees that, without the prior written consent of Protection One, except as expressly permitted hereunder, Recipient and its\nRepresentatives shall not disclose to any other person (including, without limitation, by issuing a press release or otherwise making any public\nstatement) any of the terms, conditions or other information with respect to the Transaction, including the status thereof; provided, however, that\nRecipient may make such disclosure as it determines in good faith and upon the advice of counsel is required by law or the applicable rules of any\nnational securities exchange or other market or reporting system (in which event Recipient shall use reasonable efforts to consult with Protection\nOne as early as possible prior to any such disclosure regarding the nature, timing, extent and form of such disclosure).\n(f) If Recipient or any of its Representatives are requested or required to disclose any Evaluation Material by interrogatories or requests for\ninformation or other documents in any legal proceeding, subpoena, civil investigative demand or other similar process, to the extent legally\npermissible, Recipient shall provide Protection One with prompt written notice of any such request or requirement so that Protection One has an\nopportunity to seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement If Protection One\nwaives compliance with the provisions of this Agreement with respect to a specific request or requirement, Recipient and its Representatives shall\ndisclose only that portion of the Evaluation Material that is covered by such waiver and which is necessary to disclose in order to comply with such\nrequest or requirement. If (in the absence of a waiver by Protection One) Protection One has not secured a protective order or other appropriate\nremedy, and Recipient or one of its Representatives is nonetheless then legally compelled to disclose any Evaluation Material, Recipient or such\nRepresentative may, without liability hereunder, disclose only that portion of the Evaluation Material that is legally compelled to be disclosed.\n(g) If either Party hereto decides that it does not desire to proceed with the Transaction, then it shall promptly notify the other Party. Under\nsuch circumstances, upon the written request of Protection One, Recipient shall promptly destroy or deliver or cause to be delivered to Protection\nOne all Evaluation Material furnished to it or to any of its Representatives, together with all copies of such Evaluation Material (including, without\nlimitation, electronic copies), in the possession or control of Recipient or in the possession or control of any of its Representatives, and an officer of\nRecipient shall certify promptly in writing to Protection One that all such Evaluation Material has been destroyed or returned. Recipient nonetheless\nshall be entitled to retain a copy of all Evaluation Material of the Company in its legal files for use solely in connection with any litigation,\narbitration or like action between the Parties or involving one or both Parties related thereto. Notwithstanding the return, destruction or preservation\nof the Evaluation Material as contemplated by this subsection, Recipient and its Representatives will continue to be bound by the terms of this\nAgreement with respect thereto, including all obligations of confidentiality.\n(h) Nothing herein shall be deemed to limit or restrict Recipient from disclosing any information in any action or proceeding by Recipient to\nenforce any rights that Recipient may have against Protection One under this Agreement.\n3. No Liability, Reliance or Obligation. Each Party hereto understands and acknowledges that the other Party shall not be committed or\nliable in any way with respect to any\n-3-\nTransaction or to any matters discussed or negotiated unless and until a formal written agreement with respect thereto is executed by an authorized\nofficer of each Party, and that neither Party shall have any liability to the other Party in the event that, for any reason whatsoever, no such formal\nwritten agreement is executed, except for any breach of the terms of this Agreement. Neither Party shall have any obligation to commence or\ncontinue discussions or negotiations, to provide or receive any Evaluation Material, to reach or execute any agreement or to refrain from entering\ninto or continuing any discussions, negotiations and/or agreements at any time with any third party, unless and until a formal written agreement is\nexecuted by Protection One and Recipient, and only to the extent provided therein. Except as set forth in any formal written agreement executed by\nProtection One and Recipient, neither Recipient nor any of its Representatives shall be entitled to rely on any statement, promise, agreement or\nunderstanding, whether written or oral, made by Protection One or its Representatives or any custom, usage of trade or course of dealing or conduct\nbetween the Parties or their Representatives. In addition, Recipient understands and acknowledges that, except as may be provided in a written\ndefinitive agreement between the parties, neither Protection One nor any of its Representatives makes any representation or warranty, express or\nimplied, as to the accuracy or completeness of any Evaluation Material, and that neither Protection One nor any of its Representatives shall have any\nliability whatsoever to Recipient or to any of its Representatives relating to or resulting from the Evaluation Material or any errors therein or\nomissions therefrom.\n4. Diligence Process. Recipient shall cause its Representatives not to initiate or maintain contact with any stockholder, director, officer,\nemployee, partner, manager, member, agent, customer, supplier or lender of Protection One with respect to or relating in any way to the Transaction,\nor in which the Transaction is discussed or referred to directly or indirectly, except in accordance with guidelines that are mutually established by the\nParties and as provided in this Section. Recipient hereby agrees to submit or direct to the designee or designees of Protection One all\n(a) communications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management or employee\nmeetings or conversations and (d) discussions or questions regarding procedures.\n5. Non-Solicitation and Non-Hire of Employees. Recipient acknowledges that the employees of Protection One are a key component to\nthe success of Protection One and that the preservation of the employee base of Protection One is critical to, among other things, the prospects of\nProtection One. Consequently, Recipient has agreed to the following non-solicitation and non-hire provisions. Recipient agrees that, for a period of\ntwo years from the date hereof, it shall not solicit any individual who is or becomes an employee of Protection One, and who is involved in the\ndiscussions between the Parties with respect to a Transaction or of whom Recipient becomes aware as a result of such discussions, to leave his or her\nemployment with Protection One; provided, however, that this restriction shall not apply to (i) any part-time employee, (ii) any employee who as of\nthe date hereof has already entered into employment discussions with Recipient or contacted Recipient to initiate such discussions, or (iii) any\nemployee who has sought employment with Recipient on his or her own initiative; provided further, that generalized solicitation of employment\nopportunities and generalized employee searches by headhunter/search firms (in either case not focused specifically on or directed in any way at the\nemployees or an employee of Protection One) shall not be deemed to cause a breach of this non-solicitation restriction. Recipient also agrees that, for\na period of two years from the date hereof, it shall not hire or otherwise engage any individual who is or becomes an employee\n-4-\nof Protection One and who is involved in the discussions between the Parties with respect to a Transaction or of whom Recipient becomes aware as a\nresult of such discussions; provided, however, that this restriction shall not apply to (i) any part-time employee, (ii) any employee who as of the date\nhereof has already entered into employment discussions with Recipient or contacted Recipient to initiate such discussions, or (iii) any employee who\nhas sought employment with Recipient on his or her own initiative, including pursuant to the generalized solicitation and searches permitted by this\nSection 5.\n6. Standstill. Recipient hereby agrees that, for a period of two years from the date hereof, Recipient and its Affiliates will not (and\nneither Recipient nor its Affiliates will assist, or provide or arrange financing to or for, others in order to), directly or indirectly, acting alone or in\nconcert with others, unless specifically invited on an unsolicited basis in advance by Protection One: (i) acquire or agree, offer, seek or propose to\nacquire (or request permission to do so) ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange\nAct) of any of the assets (other than in the ordinary course of business) or businesses of Protection One, any securities issued by Protection One, or\nany option or other right to acquire such ownership (including from a third party) or any other economic interest (through derivative securities or\notherwise) in Protection One; (ii) seek or propose to influence or control the management or the policies of Protection One or to obtain\nrepresentation on the board of directors (or any committee thereof) of Protection One, or solicit or participate in the solicitation of any proxies or\nconsents with respect to any securities of Protection One; (iii) seek or propose to have called, or cause to be called, any meeting of stockholders of\nProtection One; (iv) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the\nforegoing; (v) advise, assist, encourage, act as a financing source for or otherwise invest in any other person in connection with any of the foregoing\nactivities; (vi) propose or seek to propose any business combination, recapitalization, restructuring, liquidation, dissolution or other extraordinary\ntransaction with respect to Protection One or any of its subsidiaries; (vii) disclose any intention, plan or arrangement inconsistent with any of the\nforegoing; or (viii) seek to have Protection One amend or waive any provision of this Section 6. Recipient agrees to advise Protection One promptly\nof any inquiry or proposal made to it with respect to any of the foregoing, unless Recipient declines to discuss such inquiry or proposal with the\nparty making it. Recipient further agrees that, during the period referred to in the first sentence of this Section 6, neither it nor any of its Affiliates\nwill, without the written consent of Protection One, take any initiative or other action with respect to Protection One or any of the subsidiaries of\nProtection One that is reasonably likely to require Protection One to make a public announcement regarding (i) such initiative or other action,\n(ii) any of the activities, events or circumstances referred to in the preceding sentences of this Section 6, (iii) the possibility of a Transaction or any\nsimilar transaction between Protection One and any particular party or (iv) the possibility of Recipient or any other person acquiring control of\nProtection One, whether by means of a business combination or otherwise. Recipient represents to Protection One that neither it nor any of its\nAffiliates (other than individuals in their individual accounts and in de minimis amounts) owns (including, but not limited to, beneficial ownership as\ndefined in Rule 13d-3 under the Exchange Act) any securities of Protection One as of the date hereof.\n7. Remedies. Recipient acknowledges and agrees that money damages may not be a sufficient remedy for any breach of this Agreement\nby Recipient or any of its Representatives and that Protection One is entitled to seek equitable relief, including injunction\n-5-\nand specific performance, as a remedy of such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this\nAgreement, but shall be in addition to all other remedies available at law or equity to Protection One. In the event of litigation relating to this\nAgreement, if a court of competent jurisdiction determines that a Party or any of its Representatives has breached this Agreement, or if a Party does\nnot prevail in any such action, such breaching or non-prevailing Party shall be liable for and pay to the other Party on demand promptly following\nthe submission of supporting documents the reasonable and documented legal fees and expenses incurred by the non-breaching or prevailing Party in\nconnection with such litigation, including any appeal therefrom. The restrictions expressed in this Agreement in no way supersede or eliminate any\nrights which Protection One may have pursuant to Federal or state law pertaining to trade secrets or proprietary information and, in the event that\nany such Federal or state law provides greater protections of any Evaluation Material than the protections set forth in this Agreement, such greater\nprotections shall apply to such Evaluation Material.\n8. Indemnification. Recipient agrees to indemnify, defend and hold harmless Protection One from and against any and all losses,\ndamages, liabilities, assessments, costs, charges or claims (including without limitation reasonable and documented attorneys’ fees and costs)\nincurred or suffered by Protection One as a result of or arising out of any unauthorized or improper use or disclosure by Recipient or any of its\nRepresentatives of any Evaluation Material or any breach by Recipient or any of its Representatives of the obligations of Recipient under this\nAgreement. The foregoing indemnification provision is in addition to, and not in derogation of, any statutory, equitable or common law remedy that\nProtection One may have.\n9. Certain Definitions.\n“Affiliate” has the meaning set forth in Rule 12b-2 of the regulations promulgated under the Exchange Act.\n“Exchange Act” means the U.S . Securities Exchange Act of 1934, as amended.\n“Representatives” of a Party means the directors, officers, partners, managers, members, patrons, employees, advisors, agents and other\nrepresentatives of such Party, including attorneys, accountants, actuaries, consultants and financial advisors, debt financing sources but specifically\nexcluding any source of equity financing (unless expressly approved in writing by the other Party).\n10. Affiliates. Notwithstanding anything in this Agreement to the contrary, Protection One agrees that, to the extent Recipient or its\nRepresentatives do not disclose the Evaluation Material, directly or indirectly, to entities controlled or otherwise managed, directly or indirectly, by\nyou, none of the terms of this Agreement shall apply to such entities.\n11. Waivers and Amendments. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as\na waiver thereof, nor shall any single or partial exercise thereof preclude any other exercise thereof or the exercise of any other right, power or\nprivilege hereunder. No alteration, amendment, change or supplement hereto shall be binding or effective unless the same is set forth in writing\nsigned by a duly authorized\n-6-\nrepresentative of each Party. No provision hereof or right hereunder may be waived except by a separate written letter executed by a duly authorized\nrepresentative of the waiving Party, which writing expressly waives an identified portion of this Agreement.\n12. Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this\nAgreement shall be in writing and shall be deemed to have been given when delivered personally to the recipient, two business days after being sent\nto the recipient by reputable intercontinental courier service (charges prepaid) or five business days after being mailed to the recipient by certified or\nregistered mail, return receipt requested and postage prepaid. Such notices, demands and other communications shall be sent to each Party at the\naddress indicated on the signature page to this Agreement or to such other address or to the attention of such other person as the recipient Party has\nspecified by prior written notice to the sending Party.\n13. Choice of Law/Consent to Jurisdiction. The validity, interpretation, performance and enforcement of this Agreement shall be\ngoverned by the laws of the State of Delaware without regard to the conflicts of laws principles thereof. Each Party hereby irrevocably and\nunconditionally consents to the exclusive jurisdiction of the U.S. federal and state courts in the City of Wilmington, Delaware for any action, suit or\nproceeding arising out of or related hereto. Each Party hereto further hereby irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of or relating to this Agreement in the U.S . federal and state courts of the City of Wilmington,\nDelaware and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or\nproceeding brought in any such court has been brought in an inconvenient forum.\n14. Severability. If any provision or portion of this Agreement should be determined by any court or agency of competent jurisdiction to\nbe invalid, illegal or unreasonable, in whole or in part in any jurisdiction, and such determination should become final, such provision or portion\nshall be deemed to be severed in such jurisdiction, but only to the extent required to render the remaining provisions and portions of this Agreement\nenforceable, and this Agreement as thus amended shall be enforced in such jurisdiction to give effect to the intention of the Parties insofar as that is\npossible, and further, the Agreement shall continue without amendment in full force and effect in all other jurisdictions. In the event of any such\ndetermination, the Parties shall negotiate in good faith to modify this Agreement to fulfill as closely as possible the original intents and purposes\nhereof.\n15. Insider Trading. Recipient acknowledges that Protection One is an issuer with securities registered pursuant to the Exchange Act\nand that the disclosure of nonpublic information regarding Protection One or any of its subsidiaries by Recipient or trading in the securities of\nProtection One by Recipient while in the possession of such information may, depending on the facts and circumstances, subject Recipient to\nliability under certain U.S . securities laws.\n16. Construction. For purposes of Section 1 through and including Section 7 hereof, reference to Recipient shall also include the\nsubsidiaries and Affiliates of Recipient, and Recipient will be responsible for any breach of the provisions of this Agreement by its\n-7-\nsubsidiaries and Affiliates and any other person to whom Recipient (or its Representatives) provides any Evaluation Material. The term “person” as\nused in this Agreement shall be interpreted broadly to include the media and any corporation, group, individual or other entity. The word “including”\n(and all variations) shall mean including without limitation. The Parties have participated jointly in the negotiation and drafting of this Agreement. In\nthe event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no\npresumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.\nAny reference to any U.S . federal, state, local or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated\nthereunder, unless the context requires otherwise.\n17. Counterparts. For the convenience of the Parties, any number of counterparts of this Agreement may be executed by the Parties\nhereto. Each such counterpart shall be, and shall be deemed to be, an original instrument, but all such counterparts taken together shall constitute one\nand the same Agreement. A facsimile or .pdf or similar electronic copy of this Agreement or any signatures hereon shall be considered as originals\nfor all purposes.\n18. Successors and Assigns. The benefits of this Agreement shall inure to the respective successors and assigns of the Parties hereto,\nand the obligations and liabilities assumed in this Agreement by the Parties hereto shall be binding upon their respective successors and assigns.\n19. Headings. The headings to the Sections and subsections contained herein are for identification purposes only and are not to be\nconstrued as part of this Agreement.\n20. Entire Agreement. This Agreement embodies the entire agreement and understanding of the Parties hereto and supersedes any and\nall prior agreements, arrangements and understandings, written or oral, relating to the matters provided for herein, including the Confidentiality\nAgreement dated July 15, 2008 between Protection One, Inc. and GTCR Golder Rauner, LLC.\n21. Term. Unless a shorter period of time is specified elsewhere in this Agreement, all obligations of the Parties shall continue until the\nthird anniversary of the date hereof.\n[Signature Page Follows]\n-8-\nIN WITNESS WHEREOF, the Parties hereto have executed or caused this Confidentiality Agreement to be executed by their duly\nauthorized officers as of the day and year first written above.\nPROTECTION ONE, INC.\nBy:\n/s/ Eric Griffin\nName:\nERIC GRIFFIN\nTitle:\nVICE PRESIDENT\nAddress:\n1035 N. Third Street, Suite 101\nLawrence, Kansas 66044\nAttention: Darius G. Nevin\nFacsimile: 785.856.9950\nGTCR GOLDER RAUNER II, LLC\nBy:\n/s/ Christian McGrath\nName:\nChristian McGrath\nTitle:\nGeneral Counsel\nAddress:\n300 N. LaSalle Street\nSuite 5600\nChicago, IL 60654\nAttention: General Counsel\nFacsimile: 312.382.2201\n-9-
+499b8ef5e35c7cfef55855b2d094bff5.pdf	effective_date jurisdiction party term	EX-99.D.3 14 y61533exv99wdw3.htm EX-99.D.3: MUTUAL NON-DISCLOSURE AGREEMENT\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the “Effective Date”), is between Magic\nHat Brewing Company & Performing Arts Center, Inc., a Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington\ncorporation (“Pyramid”). Pyramid and the Company are sometimes referred to in this Agreement individually as a “Party” and collectively as the\n“Parties”.\nWHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files reports and proxy materials under the\nSecurities Exchange Act of 1934, which are publicly available.\nWHEREAS, the Parties wish to exchange certain nonpublic confidential business information for purposes of engaging in preliminary\ndiscussions regarding and evaluating a possible strategic merger, acquisition or business combination between the Parties (the “Business\nPurpose”).\nNOW THEREFORE, the Parties agree as follows:\n1. Definition of Confidential Information. The term “Confidential Information” means any and all information that is or has been received\nby either Party (the “Recipient”) from the other Party (the “Disclosing Party”), or which the Recipient has had access to, during the four (4)-\nmonth period commencing on the Effective Date (the “Term”), and that is either (a) marked as “confidential,” “proprietary,” or such similar term,\nor (b) non-public information related to the Disclosing Party’s business, which the Receiving Party should reasonably know is confidential based\non the nature of such information. Without limiting the generality of the foregoing, Confidential Information shall include the following, whether\nin tangible or electronic form: business plans, customer database information, employee and independent contractor lists, internal reports and\ninvestigations, research and work in progress, source and object code, technical manuals, financial statements and projections, cost summaries\nand pricing formulae, algorithms, confidential filings with any international, federal or state agency, and all other information concerning\nmethods of doing business, ideas and inventions (whether or not patentable), and data that derives independent economic value, actual or\npotential, from not being generally known to persons who can obtain economic value from its disclosure or use that is the subject of reasonable\nefforts by the Company to maintain its secrecy.\n2. Excluded Information. Confidential Information shall not include any information that: (a) prior to its disclosure by the Disclosing Party\nis already lawfully and rightfully known by or available to the Recipient as evidenced by prior written records; (b) through no wrongful act, fault\nor negligence on the part of the Recipient is or hereafter becomes part of the public domain; (c) is lawfully received by the Recipient from a third\nparty without restriction and without breach of this agreement or any other agreement; (d) is approved for public release or use by written\nauthorization of the Disclosing Party; (e) the Recipient can demonstrate was independently developed by it without reference to the Disclosing\nParty’s Confidential Information; or (f) is disclosed pursuant to the requirement or request of a governmental agency or court of competent\njurisdiction to the extent such disclosure is required by a valid law, regulation or court order and sufficient notice is given by the Recipient to the\nDisclosing Party of any such requirement or request in order to permit the Disclosing Party to seek an appropriate protective order or exemption\nfrom such requirement or request.\n3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential Information except for the Business Purpose, or\n(b) disclose or make the Confidential Information available to any person or entity (other than Related Parties, as defined below) without the\nprior written consent of the Disclosing Party. Each Party shall take reasonable security precautions to protect the Confidential Information, at\nleast as strict as the precautions it takes to protect its own confidential and proprietary information of a similar nature. Without the prior written\nconsent of the Disclosing Party, the Recipient of Confidential Information shall restrict the disclosure and availability of Confidential\nInformation to Recipient’s financial, tax, or legal advisors, or to its directors, officers, or employees with a demonstrable need to know such\nConfidential Information (each, a “Related Party”, and, collectively, the “Related Parties”), provided that any such Related Party either agrees to\nbe bound by this Agreement or is already bound by confidentiality obligations no less restrictive than those in this Agreement. Each Party shall\nbe responsible for the breach of this Agreement by any Related Party. Neither Party shall use any Confidential Information received by it to\ndevelop a product or service which competes with or imitates products of the Disclosing Party or engage in reverse engineering to develop\nsimilar products or services using the Confidential Information (it being acknowledged and understood that both Parties are engaged in the\nbusiness of beer brewing and that competing beer products are regularly independently developed within the beer industry using the same or\nsimilar raw materials, processes and packaging). The Recipient shall prevent commingling of the Confidential Information with similar\ninformation or material of other third parties. The obligations of confidentiality and protection under this Agreement shall survive for three (3)\nyears following the expiration of the Term.\n4. Non-Solicitation. Other than through general employment listings and advertising or through the efforts of employment search firms, each\nParty shall not, during the Term of this Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or\nindependent contractor of the other Party, or induce any such person to abandon their relationship with the other Party.\n5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND THE DISCLOSING PARTY HEREBY\nDISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, SUITABILITY OR NON-\nINFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.\n6. No License or Obligations; Return of Confidential Information. This Agreement does not represent nor imply any agreement or\ncommitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the\nParties or authorize a Party to use the other Party’s name or trademarks. As between the Parties, all Confidential Information received by a\nRecipient shall remain the sole and exclusive property of the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall\nreturn to the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all tangible or electronic forms of Confidential\nInformation, including any and all copies of the Confidential Information or notes containing the Confidential Information, and shall provide a\nwritten certification to the Disclosing Party that all tangible forms of the Confidential Information have been returned or destroyed.\n7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy any breach of this Agreement. As a result, a\nnon-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and\n2\ninjunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies,\nincluding money damages, available to a non-breaching party at law or in equity.\n8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by registered mail, return receipt requested, or\nreputable overnight courier to the addresses listed below (or such address changed by the giving of like notice to the other Party), and shall be\ndeemed received upon actual receipt by the recipient Party.\n9. Governing Law; Attorneys’ Fees. This Agreement, including all matters of construction, validity and performance, shall be governed by,\nconstrued and enforced in accordance with the laws of the State of Washington, as applied to contracts made and to be fully performed in such\nstate, without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state and federal courts located in New York, New\nYork. A prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs arising out of this Agreement.\n10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto with respect to its subject matter, and any and\nall prior agreements, understandings or representations with respect to its subject matter are merged herein. This Agreement may be amended and\nany provision may be waived only by the written agreement of the Parties. The terms and conditions of this Agreement shall inure to the benefit\nof and be binding upon the respective successors and assigns of the Parties, provided that Confidential Information of the Disclosing Party may\nnot be assigned by the Recipient without the prior written consent of the Disclosing Party. If any provision of this Agreement is held by a court of\ncompetent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any\nway be effected, impaired or invalidated thereby. This Agreement may be executed in two or more counterparts or by other electronic means,\neach of which shall be deemed an original, and all of which together shall constitute one and the same instrument.\n3\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.\nPYRAMID BREWERIES INC.,\nMAGIC HAT BREWING COMPANY & PERFORMING\nARTS CENTER, INC.,\na Washington corporation\na Vermont corporation\nBy (signature):\nBy (signature):\nPrinted Name:\nPrinted Name:\nTitle:\nTitle:\nAddress:\n91 South Royal Brougham Way\nAddress:\n5 Bartlett Road\nSeattle, WA 98134\nSouth Burlington, VT 05403\nFax:\nFax:\n(802) 658-5788\n4	EX-99.D.3 14 y61533exv99wdw3.htm EX-99.D.3: MUTUAL NON-DISCLOSURE AGREEMENT\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the “Effective Date™), is between Magic\nHat Brewing Company & Performing Arts Center, Inc., a Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington\ncorporation (“Pyramid”). Pyramid and the Company are sometimes referred to in this Agreement individually as a “Party” and collectively as the\n“Parties”.\n \nWHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files reports and proxy materials under the\nSecurities Exchange Act of 1934, which are publicly available.\nWHEREAS, the Parties wish to exchange certain nonpublic confidential business information for purposes of engaging in preliminary\ndiscussions regarding and evaluating a possible strategic merger, acquisition or business combination between the Parties (the “Business\nPurpose”).\nNOW THEREFORE, the Parties agree as follows:\n1. Definition of Confidential Information. The term “Confidential Information” means any and all information that is or has been received\nby either Party (the “Recipient”) from the other Party (the “Disclosing Party™), or which the Recipient has had access to, during the four (4)-\nmonth period commencing on the Effective Date (the “Term™), and that is either (a) marked as “confidential,” “proprietary,” or such similar term,\nor (b) non-public information related to the Disclosing Party’s business, which the Receiving Party should reasonably know is confidential based\non the nature of such information. Without limiting the generality of the foregoing, Confidential Information shall include the following, whether\nin tangible or electronic form: business plans, customer database information, employee and independent contractor lists, internal reports and\ninvestigations, research and work in progress, source and object code, technical manuals, financial statements and projections, cost summaries\nand pricing formulae, algorithms, confidential filings with any international, federal or state agency, and all other information concerning\nmethods of doing business, ideas and inventions (whether or not patentable), and data that derives independent economic value, actual or\npotential, from not being generally known to persons who can obtain economic value from its disclosure or use that is the subject of reasonable\nefforts by the Company to maintain its secrecy.\n2. Excluded Information. Confidential Information shall not include any information that: (a) prior to its disclosure by the Disclosing Party\nis already lawfully and rightfully known by or available to the Recipient as evidenced by prior written records; (b) through no wrongful act, fault\nor negligence on the part of the Recipient is or hereafter becomes part of the public domain; (c) is lawfully received by the Recipient from a third\nparty without restriction and without breach of this agreement or any other agreement; (d) is approved for public release or use by written\nauthorization of the Disclosing Party; (e) the Recipient can demonstrate was independently developed by it without reference to the Disclosing\nParty’s Confidential Information; or (f) is disclosed pursuant to the requirement or request of a governmental agency or court of competent\njurisdiction to the extent such disclosure is required by a valid law, regulation or court order and sufficient notice is given by the Recipient to the\nDisclosing Party of any such requirement or request in order to permit the Disclosing Party to seek an appropriate protective order or exemption\nfrom such requirement or request.\n3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential Information except for the Business Purpose, or\n(b) disclose or make the Confidential Information available to any person or entity (other than Related Parties, as defined below) without the\nprior written consent of the Disclosing Party. Each Party shall take reasonable security precautions to protect the Confidential Information, at\nleast as strict as the precautions it takes to protect its own confidential and proprietary information of a similar nature. Without the prior written\nconsent of the Disclosing Party, the Recipient of Confidential Information shall restrict the disclosure and availability of Confidential\nInformation to Recipient’s financial, tax, or legal advisors, or to its directors, officers, or employees with a demonstrable need to know such\nConfidential Information (each, a “Related Party”, and, collectively, the “Related Parties”), provided that any such Related Party either agrees to\nbe bound by this Agreement or is already bound by confidentiality obligations no less restrictive than those in this Agreement. Each Party shall\nbe responsible for the breach of this Agreement by any Related Party. Neither Party shall use any Confidential Information received by it to\ndevelop a product or service which competes with or imitates products of the Disclosing Party or engage in reverse engineering to develop\nsimilar products or services using the Confidential Information (it being acknowledged and understood that both Parties are engaged in the\nbusiness of beer brewing and that competing beer products are regularly independently developed within the beer industry using the same or\nsimilar raw materials, processes and packaging). The Recipient shall prevent commingling of the Confidential Information with similar\ninformation or material of other third parties. The obligations of confidentiality and protection under this Agreement shall survive for three (3)\nyears following the expiration of the Term.\n4. Non-Solicitation. Other than through general employment listings and advertising or through the efforts of employment search firms, each\nParty shall not, during the Term of this Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or\nindependent contractor of the other Party, or induce any such person to abandon their relationship with the other Party.\n5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND THE DISCLOSING PARTY HEREBY\nDISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, SUITABILITY OR NON-\nINFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.\n6. No License or Obligations; Return of Confidential Information. This Agreement does not represent nor imply any agreement or\ncommitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the\nParties or authorize a Party to use the other Party’s name or trademarks. As between the Parties, all Confidential Information received by a\nRecipient shall remain the sole and exclusive property of the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall\nreturn to the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all tangible or electronic forms of Confidential\nInformation, including any and all copies of the Confidential Information or notes containing the Confidential Information, and shall provide a\nwritten certification to the Disclosing Party that all tangible forms of the Confidential Information have been returned or destroyed.\n7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy any breach of this Agreement. As a result, a\nnon-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and\n2\ninjunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies,\nincluding money damages, available to a non-breaching party at law or in equity.\n8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by registered mail, return receipt requested, or\nreputable overnight courier to the addresses listed below (or such address changed by the giving of like notice to the other Party), and shall be\ndeemed received upon actual receipt by the recipient Party.\n9. Governing Law; Attorneys’ Fees. This Agreement, including all matters of construction, validity and performance, shall be governed by,\nconstrued and enforced in accordance with the laws of the State of Washington, as applied to contracts made and to be fully performed in such\nstate, without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state and federal courts located in New York, New\nYork. A prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs arising out of this Agreement.\n10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto with respect to its subject matter, and any and\nall prior agreements, understandings or representations with respect to its subject matter are merged herein. This Agreement may be amended and\nany provision may be waived only by the written agreement of the Parties. The terms and conditions of this Agreement shall inure to the benefit\nof and be binding upon the respective successors and assigns of the Parties, provided that Confidential Information of the Disclosing Party may\nnot be assigned by the Recipient without the prior written consent of the Disclosing Party. If any provision of this Agreement is held by a court of\ncompetent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any\nway be effected, impaired or invalidated thereby. This Agreement may be executed in two or more counterparts or by other electronic means,\neach of which shall be deemed an original, and all of which together shall constitute one and the same instrument.\n3\nIN WITNESS WHEREQF, the Parties have executed this Agreement as of the date first written above. PYRAMID BREWERIES INC.,\na Washington corporation\nBy (signature):\nPrinted Name:\nTitle:\nAddress: 91 South Royal Brougham Way\nSeattle, WA 98134\nFax:\nMAGIC HAT BREWING COMPANY & PERFORMING\nARTS CENTER, INC,,\na Vermont corporation\nBy (signature):\nPrinted Name:\nTitle:\nAddress: 5 Bartlett Road\nSouth Burlington, VT 05403\nFax: (802) 658-5788	EX-99.D.3 14 y61533exv99wdw3.htm EX-99.D.3: MUTUAL NON-DISCLOSURE AGREEMENT\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (the "Agreement"), effective April 3, 2008 (the "Effective Date"), is between Magic\nHat Brewing Company & Performing Arts Center, Inc., a Vermont corporation ("Company"), and PYRAMID BREWERIES INC., a Washington\ncorporation ("Pyramid"). Pyramid and the Company are sometimes referred to in this Agreement individually as a "Party." and collectively as\nthe\n"Parties"\nWHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files reports and proxy materials under the\nSecurities Exchange Act of 1934, which are publicly available.\nWHEREAS, the Parties wish to exchange certain nonpublic confidential business information for purposes of engaging in preliminary\ndiscussions regarding and evaluating a possible strategic merger, acquisition or business combination between the Parties (the "Business\nPurpose").\nNOW THEREFORE, the Parties agree as follows:\n1. Definition of Confidential Information. The term "Confidential Information" means any and all information that is or has been received\nby either Party (the "Recipient") from the other Party (the "Disclosing Party."), or which the Recipient has had access to, during the four (4)-\nmonth period commencing on the Effective Date (the "Term"), and that is either (a) marked as "confidential," "proprietary," or such similar term,\nor\n(b) non-public information related to the Disclosing Party's business, which the Receiving Party should reasonably know is confidential\nbased\non the nature of such information. Without limiting the generality of the foregoing, Confidential Information shall include the following, whether\nin tangible or electronic form: business plans, customer database information, employee and independent contractor lists, internal reports and\ninvestigations, research and work in progress, source and object code, technical manuals, financial statements and projections, cost summaries\nand pricing formulae, algorithms, confidential filings with any international, federal or state agency, and all other information concerning\nmethods of doing business, ideas and inventions (whether or not patentable), and data that derives independent economic value, actual or\npotential, from not being generally known to persons who can obtain economic value from its disclosure or use that is the subject of reasonable\nefforts by the Company to maintain its secrecy.\n2. Excluded Information. Confidential Information shall not include any information that: (a) prior to its disclosure by the Disclosing Party\nis\nalready lawfully and rightfully known by or available to the Recipient as evidenced by prior written records; (b) through no wrongful act, fault\nor negligence on the part of the Recipient is or hereafter becomes part of the public domain; (c) is lawfully received by the Recipient from a third\nparty without restriction and without breach of this agreement or any other agreement; (d) is approved for public release or use by written\nauthorization of the Disclosing Party; (e) the Recipient can demonstrate was independently developed by it without reference to the Disclosing\nParty's Confidential Information; or (f) is disclosed pursuant to the requirement or request of a governmental agency or court of competent\njurisdiction to the extent such disclosure is required by a valid law, regulation or court order and sufficient notice is given by the Recipient to the\nDisclosing Party of any such requirement or request in order to permit the Disclosing Party to seek an appropriate protective order or exemption\nfrom such requirement or request.\n3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential Information except for the Business Purpose, or\n(b) disclose or make the Confidential Information available to any person or entity (other than Related Parties, as defined below) without the\nprior written consent of the Disclosing Party. Each Party shall take reasonable security precautions to protect the Confidential Information,\nat\nleast as strict as the precautions it takes to protect its own confidential and proprietary information of a similar nature. Without the prior written\nconsent of the Disclosing Party, the Recipient of Confidential Information shall restrict the disclosure and availability of Confidential\nInformation to Recipient's financial, tax, or legal advisors, or to its directors, officers, or employees with a demonstrable need to know such\nConfidential Information (each, a "Related Party.", and, collectively, the "Related Parties"), provided that any such Related Party either agrees to\nbe bound by this Agreement or is already bound by confidentiality obligations no less restrictive than those in this Agreement. Each Party shall\nbe responsible for the breach of this Agreement by any Related Party. Neither Party shall use any Confidential Information received by it to\ndevelop a product or service which competes with or imitates products of the Disclosing Party or engage in reverse engineering to develop\nsimilar\nproducts\nor\nservices\nusing\nthe\nConfidentia\nInformation\n(it\nbeing\nacknowledged\nand\nunderstood\nthat\nboth\nParties\nare\nengaged\nin\nthe\nbusiness of beer brewing and that competing beer products are regularly independently developed within the beer industry using the same\nor\nsimilar raw materials, processes and packaging). The Recipient shall prevent commingling of the Confidential Information with similar\ninformation or material of other third parties. The obligations of confidentiality and protection under this Agreement shall survive for three (3)\nyears following the expiration of the Term.\n4. Non-Solicitation. Other than through general employment listings and advertising or through the efforts of employment search firms, each\nParty shall not, during the Term of this Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or\nindependent contractor of the other Party, or induce any such person to abandon their relationship with the other Party.\n5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED "AS IS," AND THE DISCLOSING PARTY HEREBY\nDISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, SUITABILITY OR NON-\nINFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.\n6. No License or Obligations; Return of Confidential Information. This Agreement does not represent nor imply any agreement or\ncommitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the\nParties or authorize a Party to use the other Party's name or trademarks. As between the Parties, all Confidential Information received by a\nRecipient shall remain the sole and exclusive property of the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall\nreturn to the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all tangible or electronic forms of Confidential\nInformation, including any and all copies of the Confidential Information or notes containing the Confidential Information, and shall provide a\nwritten certification to the Disclosing Party that all tangible forms of the Confidential Information have been returned or destroyed.\n7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy any breach of this Agreement. As a result, a\nnon-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and\n2\ninjunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies,\nincluding money damages, available to a non-breaching party at law or in equity.\n8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by registered mail, return receipt requested,\nor\nreputable overnight courier to the addresses listed below (or such address changed by the giving of like notice to the other Party), and shall be\ndeemed received upon actual receipt by the recipient Party.\n9. Governing Law; Attorneys' Fees. This Agreement, including all matters of construction, validity and performance, shall be governed by,\nconstrued and enforced in accordance with the laws of the State of Washington, as applied to contracts made and to be fully performed in such\nstate, without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state and federal courts located in New York, New\nYork. A prevailing Party shall be entitled to an award of its reasonable attorneys' fees and costs arising out of this Agreement.\n10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto with respect to its subject matter, and any and\nall prior agreements, understandings or representations with respect to its subject matter are merged herein. This Agreement may be amended and\nany provision may be waived only by the written agreement of the Parties. The terms and conditions of this Agreement shall inure to the benefit\nof and be binding upon the respective successors and assigns of the Parties, provided that Confidential Information of the Disclosing Party may\nnot be assigned by the Recipient without the prior written consent of the Disclosing Party. If any provision of this Agreement is held by a court of\ncompetent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in\nany\nway be effected, impaired or invalidated thereby. This Agreement may be executed in two or more counterparts or by other electronic means,\neach of which shall be deemed an original, and all of which together shall constitute one and the same instrument.\n3\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.\nPYRAMID BREWERIES INC.,\nMAGIC HAT BREWING COMPANY & PERFORMING\nARTS CENTER, INC.,\na Washington corporation\na Vermont corporation\nBy (signature):\nBy (signature):\nPrinted Name:\nPrinted Name:\nTitle:\nTitle:\nAddress:\n91 South Royal Brougham Way\nAddress:\n5 Bartlett Road\nSeattle, WA 98134\nSouth Burlington, VT 05403\nFax:\nFax:\n(802) 658-5788\n4	EX-99.D.3 14 y61533exv99wdw3.htm EX-99.D.3: MUTUAL NON-DISCLOSURE AGREEMENT\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (the “Agreement”), effective April 3, 2008 (the “Effective Date”), is between Magic\nHat Brewing Company & Performing Arts Center, Inc., a Vermont corporation (“Company”), and PYRAMID BREWERIES INC., a Washington\ncorporation (“Pyramid”). Pyramid and the Company are sometimes referred to in this Agreement individually as a “Party” and collectively as the\n“Parties”.\nWHEREAS, Pyramid is a reporting company with the Securities and Exchange Commission and files reports and proxy materials under the\nSecurities Exchange Act of 1934, which are publicly available.\nWHEREAS, the Parties wish to exchange certain nonpublic confidential business information for purposes of engaging in preliminary\ndiscussions regarding and evaluating a possible strategic merger, acquisition or business combination between the Parties (the “Business\nPurpose”).\nNOW THEREFORE, the Parties agree as follows:\n1. Definition of Confidential Information. The term “Confidential Information” means any and all information that is or has been received\nby either Party (the “Recipient”) from the other Party (the “Disclosing Party”), or which the Recipient has had access to, during the four (4)-\nmonth period commencing on the Effective Date (the “Term”), and that is either (a) marked as “confidential,” “proprietary,” or such similar term,\nor (b) non-public information related to the Disclosing Party’s business, which the Receiving Party should reasonably know is confidential based\non the nature of such information. Without limiting the generality of the foregoing, Confidential Information shall include the following, whether\nin tangible or electronic form: business plans, customer database information, employee and independent contractor lists, internal reports and\ninvestigations, research and work in progress, source and object code, technical manuals, financial statements and projections, cost summaries\nand pricing formulae, algorithms, confidential filings with any international, federal or state agency, and all other information concerning\nmethods of doing business, ideas and inventions (whether or not patentable), and data that derives independent economic value, actual or\npotential, from not being generally known to persons who can obtain economic value from its disclosure or use that is the subject of reasonable\nefforts by the Company to maintain its secrecy.\n2. Excluded Information. Confidential Information shall not include any information that: (a) prior to its disclosure by the Disclosing Party\nis already lawfully and rightfully known by or available to the Recipient as evidenced by prior written records; (b) through no wrongful act, fault\nor negligence on the part of the Recipient is or hereafter becomes part of the public domain; (c) is lawfully received by the Recipient from a third\nparty without restriction and without breach of this agreement or any other agreement; (d) is approved for public release or use by written\nauthorization of the Disclosing Party; (e) the Recipient can demonstrate was independently developed by it without reference to the Disclosing\nParty’s Confidential Information; or (f) is disclosed pursuant to the requirement or request of a governmental agency or court of competent\njurisdiction to the extent such disclosure is required by a valid law, regulation or court order and sufficient notice is given by the Recipient to the\nDisclosing Party of any such requirement or request in order to permit the Disclosing Party to seek an appropriate protective order or exemption\nfrom such requirement or request.\n3. Non-Disclosure and Confidentiality. The Recipient shall not (a) use the Confidential Information except for the Business Purpose, or\n(b) disclose or make the Confidential Information available to any person or entity (other than Related Parties, as defined below) without the\nprior written consent of the Disclosing Party. Each Party shall take reasonable security precautions to protect the Confidential Information, at\nleast as strict as the precautions it takes to protect its own confidential and proprietary information of a similar nature. Without the prior written\nconsent of the Disclosing Party, the Recipient of Confidential Information shall restrict the disclosure and availability of Confidential\nInformation to Recipient’s financial, tax, or legal advisors, or to its directors, officers, or employees with a demonstrable need to know such\nConfidential Information (each, a “Related Party”, and, collectively, the “Related Parties”), provided that any such Related Party either agrees to\nbe bound by this Agreement or is already bound by confidentiality obligations no less restrictive than those in this Agreement. Each Party shall\nbe responsible for the breach of this Agreement by any Related Party. Neither Party shall use any Confidential Information received by it to\ndevelop a product or service which competes with or imitates products of the Disclosing Party or engage in reverse engineering to develop\nsimilar products or services using the Confidential Information (it being acknowledged and understood that both Parties are engaged in the\nbusiness of beer brewing and that competing beer products are regularly independently developed within the beer industry using the same or\nsimilar raw materials, processes and packaging). The Recipient shall prevent commingling of the Confidential Information with similar\ninformation or material of other third parties. The obligations of confidentiality and protection under this Agreement shall survive for three (3)\nyears following the expiration of the Term.\n4. Non-Solicitation. Other than through general employment listings and advertising or through the efforts of employment search firms, each\nParty shall not, during the Term of this Agreement and for one (1) year thereafter, directly or indirectly, solicit or hire any employee or\nindependent contractor of the other Party, or induce any such person to abandon their relationship with the other Party.\n5. No Warranty. THE CONFIDENTIAL INFORMATION IS PROVIDED “AS IS,” AND THE DISCLOSING PARTY HEREBY\nDISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, SUFFICIENCY, SUITABILITY OR NON-\nINFRINGEMENT OF SUCH CONFIDENTIAL INFORMATION.\n6. No License or Obligations; Return of Confidential Information. This Agreement does not represent nor imply any agreement or\ncommitment to enter into any further business relationship. This Agreement does not create any agency or partnership relationship between the\nParties or authorize a Party to use the other Party’s name or trademarks. As between the Parties, all Confidential Information received by a\nRecipient shall remain the sole and exclusive property of the Disclosing Party. Upon written request by the Disclosing Party, the Recipient shall\nreturn to the Disclosing Party, or shall destroy in a manner satisfactory to the Disclosing Party, all tangible or electronic forms of Confidential\nInformation, including any and all copies of the Confidential Information or notes containing the Confidential Information, and shall provide a\nwritten certification to the Disclosing Party that all tangible forms of the Confidential Information have been returned or destroyed.\n7. Remedies for Breach. The Parties agree that money damages would be inadequate to remedy any breach of this Agreement. As a result, a\nnon-breaching party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and\n2\ninjunctive or other equitable relief as a remedy for any breach of this Agreement. Such remedy shall be in addition to all other remedies,\nincluding money damages, available to a non-breaching party at law or in equity.\n8. Notices. Any notice given by one Party to the other under this Agreement shall be sent by registered mail, return receipt requested, or\nreputable overnight courier to the addresses listed below (or such address changed by the giving of like notice to the other Party), and shall be\ndeemed received upon actual receipt by the recipient Party.\n9. Governing Law; Attorneys’ Fees. This Agreement, including all matters of construction, validity and performance, shall be governed by,\nconstrued and enforced in accordance with the laws of the State of Washington, as applied to contracts made and to be fully performed in such\nstate, without regard to its conflict of law rules. The Parties consent to the jurisdiction of the state and federal courts located in New York, New\nYork. A prevailing Party shall be entitled to an award of its reasonable attorneys’ fees and costs arising out of this Agreement.\n10. Miscellaneous. This Agreement sets forth the entire agreement between the Parties hereto with respect to its subject matter, and any and\nall prior agreements, understandings or representations with respect to its subject matter are merged herein. This Agreement may be amended and\nany provision may be waived only by the written agreement of the Parties. The terms and conditions of this Agreement shall inure to the benefit\nof and be binding upon the respective successors and assigns of the Parties, provided that Confidential Information of the Disclosing Party may\nnot be assigned by the Recipient without the prior written consent of the Disclosing Party. If any provision of this Agreement is held by a court of\ncompetent jurisdiction to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any\nway be effected, impaired or invalidated thereby. This Agreement may be executed in two or more counterparts or by other electronic means,\neach of which shall be deemed an original, and all of which together shall constitute one and the same instrument.\n3\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.\nPYRAMID BREWERIES INC.,\nMAGIC HAT BREWING COMPANY & PERFORMING\nARTS CENTER, INC.,\na Washington corporation\na Vermont corporation\nBy (signature):\nBy (signature):\nPrinted Name:\nPrinted Name:\nTitle:\nTitle:\nAddress:\n91 South Royal Brougham Way\nAddress:\n5 Bartlett Road\nSeattle, WA 98134\nSouth Burlington, VT 05403\nFax:\nFax:\n(802) 658-5788\n4
+4b7c1756f55d051372f14e12a631c837.pdf	effective_date jurisdiction party term	EX-99.(E)(4) 3 d354024dex99e4.htm EXHIBIT (E)(4)\nExhibit (e)(4)\nLOGO\nGTSI CORP.\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) is dated and made effective this 24th day of February, 2012, by and between GTSI Corp.,\n(“GTSI”) with offices at 2553 Dulles View Drive, Suite 100, Herndon, Virginia 20171, and UNICOM Systems, Inc. (“Company”), with offices at\nUNICOM Plaza Suite 310, 15535 San Fernando Mission Boulevard, Mission Hills, California 91345;\nWHEREAS, the parties hereto wish to explore possible transactions between the parties, including, but not limited to, a possible business\ncombination, or acquisition of all or a portion of, or investment in, GTSI by the Company (the “Potential Transactions,”); and\nWHEREAS, GTSI is willing to disclose certain information, including, without limitation, non-public, confidential, and/or proprietary information,\nto Company for purposes of, and in connection with, an evaluation by Company of the Potential Transactions (the “Evaluation”);\nNOW, THEREFORE, the parties hereto agree as follows:\n1. For purposes of this Agreement, the term “Confidential Information” means the GTSI information which is disclosed to Company under this\nAgreement (including but not limited to information, technical data or know-how, regardless of form, proprietary or otherwise, maintained in\nconfidence by GTSI, including without limitation of the generality of the foregoing any information, pricing, technical data or know-how relating to\nGTSI’s research, operations, products, services, inventions, manufacturing processes, production techniques, purchasing, financial condition,\naccounting, assembly, distribution, engineering, marketing, merchandising and/or sales, which is disclosed by GTSI or on its behalf whether before,\non or after the date hereof, directly or indirectly, in writing, orally, or by drawings or inspection of parts or equipment, to Company or any of its\nemployees or agents) which is/are in written, graphic, recorded, photographic or any machine readable form (or oral information reduced to writing\nwithin 72 hours after disclosure to Company), and which, in any case, is/are conspicuously marked or otherwise labeled “Confidential”,\n“Proprietary”, “Sensitive” or in another manner indicating its confidential and/or proprietary nature or which, in the case of oral information, is\nspecifically identified at the time of disclosure as being confidential, proprietary or sensitive.\n2. (a) Company will use such Confidential Information for its own internal use only during the Evaluation and will not use such information to\ncompete with GTSI. Company shall use the same degree of care it uses to protect and safeguard the confidentiality of its own proprietary\ninformation to not disclose such Confidential Information to any person or persons inside Company, except those persons with a genuine need to\nknow, and in no event to persons outside Company. Company covenants that such degree of care is, at a minimum, reasonably designed to protect\nthe confidentiality of proprietary and confidential information.\n(b) Company will not be liable for disclosure of any such Confidential Information if the same: (i) was in the public domain at the time it was\ndisclosed; (ii) was known to Company prior to the time of disclosure; (iii) is disclosed with the prior written approval of GTSI; (iv) is or becomes\npublicly known through no wrongful act of Company; (v) is disclosed after two years from the termination or expiration of this Agreement;\n(vi) becomes known to Company from a source other than GTSI without breach of this Agreement by Company; (vii) is furnished by GTSI to others\nnot in a confidential relationship with GTSI without restrictions similar to those herein on the right of the receiving party to the use or disclosure of\nthe Confidential Information; (viii) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body.\n(c) In the event of a disclosure under subsection (b)(viii) above, Company will give GTSI written notice of such order or requirement as soon as\npracticable prior to disclosure of the Confidential Information.\n3. The parties acknowledge and agree that the other party would not have an adequate remedy at law and would be irreparably harmed in the event\nthat any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly,\neach party agrees that the other party will be entitled to injunctive relief to prevent breaches of this Agreement and to specifically enforce the terms\nand provisions hereof, in addition to any other remedy to which such party may be entitled, at law or equity.\n4. This Agreement is governed by and interpreted in accordance with the laws of the Commonwealth of Virginia. Any and all claims, controversies\nor disputes arising out of or in connection with this Agreement will be resolved in accordance with this Section. Virginia law shall apply unless the\nissue relates to Federal procurement regulations or statutes and in such case Federal procurement law as interpreted by the United States Boards of\nContract Appeals and the United States Court of Federal Claims may apply.\n5. The term of this Agreement is two (2) years from the effective date (“Term”), provided that the duty to protect the Confidential Information of the\nother party will be no less than two (2) years from the date of actual disclosure. Any claim a party has for breach of this Agreement must be filed\nwithin 1 year of GTSI’s first knowledge of the breach, and no later than 1 year after the termination of this Agreement.\n6. Confidential Information remains the property of the GTSI. No rights, licenses, trademarks, inventions, copyrights, patents, or other intellectual\nproperty rights are implied or granted under this Agreement, except to use the Confidential Information as provided in this Agreement.\nPage1of2\n7. Each party warrants that it has the right to disclose all Confidential Information that it discloses to the other party. Each party will indemnify and\ndefend the other from all third-party claims resulting from the negligent or wrongful disclosure by the indemnifying party of a third-party’s\nconfidential information. Otherwise, neither party makes any representation or warranty about the Confidential Information. Neither party will be\nliable for indirect, incidental, punitive, or consequential damages for any cause of action, whether in contract, tort, or otherwise, arising out of a\nbreach of this Agreement.\n8. No Duty to Negotiate. Each Party reserves the right, in the sole and absolute discretion of such party, to reject any and all proposals made by any\nother party concerning any Potential Transaction(s) and to terminate negotiations and discussions with the other party at any time.\n9. Each party will comply with the applicable United States export laws and regulations for any technical data exchanged under this Agreement.\n10. Each Party (i) is aware that the United States securities laws prohibit any person who has material, nonpublic information about a public\ncompany from purchasing or selling securities of that company, or from communicating that information to any other person under circumstances\nwhere it is reasonably foreseeable that such person is likely to purchase or sell those securities, (ii) is familiar with the Exchange Act, and (iii) shall\nnot use, nor cause any third party to use, any Information in contravention of the Exchange Act.\n11. This Agreement: (a) represents the parties’ entire understanding regarding Confidential Information, and supersedes any prior agreements or\ndiscussions, written or oral, regarding Confidential Information; (b) may be modified only by written amendment signed by the parties’ officers or\nauthorized designees; (c) is to be considered severable, and if any provision of this Agreement is illegal or unenforceable, the unaffected provisions\nwill remain in effect; (d) contains headings for reference only; these headings have no effect on any provision’s meaning; and (e) does not extend to\nany third-party beneficiaries. If either party fails to enforce any right or remedy under this Agreement, that failure is not a waiver of the right or\nremedy for any other breach or failure by the other party.\n12. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute\none and the same instrument. In the event the parties hereto execute this Agreement in the form of a facsimile or internet transmission, the parties\nagree promptly thereafter to execute identical non-facsimile counterparts dated as of the execution date of the facsimile or internet version.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date\nfirst above-written.\nGTSI Corp.\nCompany: UNICOM Systems, Inc.\nBy: /s/ Sterling Phillips\nBy: /s/ Neil Watt\nPrint Name: Sterling Phillips\nPrint Name: Neil Watt, Esq.\nPrint Title: CEO\nPrint Title: Chief Financial Officer & Corporate Counsel\nDate:\n2/24/12\nDate:\nFebruary 24, 2012\nFor Notices\nFor Company\nGTSI Corp.\nAttn: Neil Watt\nAttn: Legal Department\nAddress:\nUNICOM Plaza Suite 310,\n15535 San Fernando Mission Boulevard\nMission Hills, California 91345\nAddress:\n2553 Dulles View Drive, Suite 100\nHerndon, VA 20171\nPage2of2	EX-99.(E)(4) 3 d354024dex99e4.htm EXHIBIT (E)(4)\nExhibit (e)(4)\n».LOGO\nGTSI CORP.\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) is dated and made effective this 24th day of February, 2012, by and between GTSI Corp.,\n(“GTSI”) with offices at 2553 Dulles View Drive, Suite 100, Herndon, Virginia 20171, and UNICOM Systems, Inc. (“Company”), with offices at\nUNICOM Plaza Suite 310, 15535 San Fernando Mission Boulevard, Mission Hills, California 91345;\nWHEREAS, the parties hereto wish to explore possible transactions between the parties, including, but not limited to, a possible business\ncombination, or acquisition of all or a portion of, or investment in, GTSI by the Company (the “Potential Transactions,”); and\nWHEREAS, GTSI is willing to disclose certain information, including, without limitation, non-public, confidential, and/or proprietary information,\nto Company for purposes of, and in connection with, an evaluation by Company of the Potential Transactions (the “Evaluation”);\nNOW, THEREFORE, the parties hereto agree as follows:\n1. For purposes of this Agreement, the term “Confidential Information” means the GTSI information which is disclosed to Company under this\nAgreement (including but not limited to information, technical data or know-how, regardless of form, proprietary or otherwise, maintained in\nconfidence by GTS], including without limitation of the generality of the foregoing any information, pricing, technical data or know-how relating to\nGTSI’s research, operations, products, services, inventions, manufacturing processes, production techniques, purchasing, financial condition,\naccounting, assembly, distribution, engineering, marketing, merchandising and/or sales, which is disclosed by GTSI or on its behalf whether before,\non or after the date hereof, directly or indirectly, in writing, orally, or by drawings or inspection of parts or equipment, to Company or any of its\nemployees or agents) which is/are in written, graphic, recorded, photographic or any machine readable form (or oral information reduced to writing\nwithin 72 hours after disclosure to Company), and which, in any case, is/are conspicuously marked or otherwise labeled “Confidential”,\n“Proprietary”, “Sensitive” or in another manner indicating its confidential and/or proprietary nature or which, in the case of oral information, is\nspecifically identified at the time of disclosure as being confidential, proprietary or sensitive.\n2. (a) Company will use such Confidential Information for its own internal use only during the Evaluation and will not use such information to\ncompete with GTSI. Company shall use the same degree of care it uses to protect and safeguard the confidentiality of its own proprietary\ninformation to not disclose such Confidential Information to any person or persons inside Company, except those persons with a genuine need to\nknow, and in no event to persons outside Company. Company covenants that such degree of care is, at a minimum, reasonably designed to protect\nthe confidentiality of proprietary and confidential information.\n(b) Company will not be liable for disclosure of any such Confidential Information if the same: (i) was in the public domain at the time it was\ndisclosed; (ii) was known to Company prior to the time of disclosure; (iii) is disclosed with the prior written approval of GTSI; (iv) is or becomes\npublicly known through no wrongful act of Company; (v) is disclosed after two years from the termination or expiration of this Agreement;\n(vi) becomes known to Company from a source other than GTSI without breach of this Agreement by Company; (vii) is furnished by GTSI to others\nnot in a confidential relationship with GTSI without restrictions similar to those herein on the right of the receiving party to the use or disclosure of\nthe Confidential Information; (viii) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body.\n(c) In the event of a disclosure under subsection (b)(viii) above, Company will give GTSI written notice of such order or requirement as soon as\npracticable prior to disclosure of the Confidential Information.\n3. The parties acknowledge and agree that the other party would not have an adequate remedy at law and would be irreparably harmed in the event\nthat any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly,\neach party agrees that the other party will be entitled to injunctive relief to prevent breaches of this Agreement and to specifically enforce the terms\nand provisions hereof, in addition to any other remedy to which such party may be entitled, at law or equity.\n4. This Agreement is governed by and interpreted in accordance with the laws of the Commonwealth of Virginia. Any and all claims, controversies\nor disputes arising out of or in connection with this Agreement will be resolved in accordance with this Section. Virginia law shall apply unless the\nissue relates to Federal procurement regulations or statutes and in such case Federal procurement law as interpreted by the United States Boards of\nContract Appeals and the United States Court of Federal Claims may apply.\n5. The term of this Agreement is two (2) years from the effective date (“Term”), provided that the duty to protect the Confidential Information of the\nother party will be no less than two (2) years from the date of actual disclosure. Any claim a party has for breach of this Agreement must be filed\nwithin 1 year of GTSTI’s first knowledge of the breach, and no later than 1 year after the termination of this Agreement.\n6. Confidential Information remains the property of the GTSI. No rights, licenses, trademarks, inventions, copyrights, patents, or other intellectual\nproperty rights are implied or granted under this Agreement, except to use the Confidential Information as provided in this Agreement.\nPage 1 of 2\n7. Each party warrants that it has the right to disclose all Confidential Information that it discloses to the other party. Each party will indemnify and\ndefend the other from all third-party claims resulting from the negligent or wrongful disclosure by the indemnifying party of a third-party’s\nconfidential information. Otherwise, neither party makes any representation or warranty about the Confidential Information. Neither party will be\nliable for indirect, incidental, punitive, or consequential damages for any cause of action, whether in contract, tort, or otherwise, arising out of a\nbreach of this Agreement.\n8. No Duty to Negotiate. Each Party reserves the right, in the sole and absolute discretion of such party, to reject any and all proposals made by any\nother party concerning any Potential Transaction(s) and to terminate negotiations and discussions with the other party at any time.\n9. Each party will comply with the applicable United States export laws and regulations for any technical data exchanged under this Agreement.\n10. Each Party (i) is aware that the United States securities laws prohibit any person who has material, nonpublic information about a public\ncompany from purchasing or selling securities of that company, or from communicating that information to any other person under circumstances\nwhere it is reasonably foreseeable that such person is likely to purchase or sell those securities, (ii) is familiar with the Exchange Act, and (iii) shall\nnot use, nor cause any third party to use, any Information in contravention of the Exchange Act.\n11. This Agreement: (a) represents the parties’ entire understanding regarding Confidential Information, and supersedes any prior agreements or\ndiscussions, written or oral, regarding Confidential Information; (b) may be modified only by written amendment signed by the parties’ officers or\nauthorized designees; (c) is to be considered severable, and if any provision of this Agreement is illegal or unenforceable, the unaffected provisions\nwill remain in effect; (d) contains headings for reference only; these headings have no effect on any provision’s meaning; and (e) does not extend to\nany third-party beneficiaries. If either party fails to enforce any right or remedy under this Agreement, that failure is not a waiver of the right or\nremedy for any other breach or failure by the other party.\n12. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute\none and the same instrument. In the event the parties hereto execute this Agreement in the form of a facsimile or internet transmission, the parties\nagree promptly thereafter to execute identical non-facsimile counterparts dated as of the execution date of the facsimile or internet version.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date\nfirst above-written.\nGTSI Corp.\nBy: /s/ Sterling Phillips\nPrint Name: Sterling Phillips\nPrint Title: CEO\nDate: 2/24/12\nFor Notices\nGTSI Corp.\nAttn: Legal Department\nAddress:\n2553 Dulles View Drive, Suite 100\nHerndon, VA 20171\nCompany: UNICOM Systems, Inc.\nBy: /s/ Neil Watt\nPrint Name: Neil Watt, Esq.\nPrint Title: Chief Financial Officer & Corporate Counsel\nDate: February 24, 2012\nFor Company\nAttn: Neil Watt\nAddress:\nUNICOM Plaza Suite 310,\n15535 San Fernando Mission Boulevard\nMission Hills, California 91345\nPage 2 of 2	EX-99.(E)(4) 3 d354024dex99e4.htm EXHIBIT (E)(4)\nExhibit (e)(4)\nLOGo\nGTSI CORP.\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement ("Agreement") is dated and made effective this 24th day of February, 2012, by and between GTSI Corp.,\n("GTSI") with offices at 2553 Dulles View Drive, Suite 100, Herndon, Virginia 20171, and UNICOM Systems, Inc. ("Company"), with offices at\nUNICOM Plaza Suite 310, 15535 San Fernando Mission Boulevard, Mission Hills, California 91345;\nWHEREAS, the parties hereto wish to explore possible transactions between the parties, including, but not limited to, a possible business\ncombination, or acquisition of all or a portion of, or investment in, GTSI by the Company (the "Potential Transactions," and\nWHEREAS, GTSI is willing to disclose certain information, including, without limitation, non-public, confidential, and/or proprietary information,\nto Company for purposes of, and in connection with, an evaluation by Company of the Potential Transactions (the "Evaluation");\nNOW, THEREFORE, the parties hereto agree as follows:\n1. For purposes of this Agreement, the term "Confidential Information" means the GTSI information which is disclosed to Company under this\nAgreement (including but not limited to information, technical data or know-how, regardless of form, proprietary or otherwise, maintained in\nconfidence\nby\nGTSI,\nincluding\nwithout\nlimitation\nof\nthe\ngenerality\nof\nthe\nforegoing\nany\ninformation,\npricing,\ntechnical\ndata\nor\nknow-how\nrelating\nto\nGTSI's research, operations, products, services, inventions, manufacturing processes, production techniques, purchasing, financial condition,\naccounting, assembly, distribution, engineering, marketing, merchandising and/or sales, which is disclosed by GTSI or on its behalf whether before,\non or after the date hereof, directly or indirectly, in writing, orally, or by drawings or inspection of parts or equipment, to Company or any of its\nemployees or agents) which is/are in written, graphic, recorded, photographic or any machine readable form (or oral information reduced to writing\nwithin 72 hours after disclosure to Company), and which, in any case, is/are conspicuously marked or otherwise labeled "Confidential",\n"Proprietary", "Sensitive" or in another manner indicating its confidential and/or proprietary nature or which, in the case of oral information, is\nspecifically identified at the time of disclosure as being confidential, proprietary or sensitive.\n2.\n(a)\nCompany\nwill\nuse\nsuch\nConfidential\nInformation\nfor\nits\nown\ninternal\nuse\nonly\nduring\nthe\nEvaluation\nand\nwill\nnot\nuse\nsuch\ninformation\nto\ncompete with GTSI. Company shall use the same degree of care it uses to protect and safeguard the confidentiality of its own proprietary\ninformation to not disclose such Confidential Information to any person or persons inside Company, except those persons with a genuine need\nto\nknow, and in no event to persons outside Company. Company covenants that such degree of care is, at a minimum, reasonably designed to protect\nthe confidentiality of proprietary and confidential information.\n(b) Company will not be liable for disclosure of any such Confidential Information if the same: (i) was in the public domain at the time it was\ndisclosed; (ii) was known to Company prior to the time of disclosure; (iii) is disclosed with the prior written approval of GTSI; (iv) is or becomes\npublicly known through no wrongful act of Company; (v) is disclosed after two years from the termination or expiration of this Agreement;\n(vi) becomes known to Company from a source other than GTSI without breach of this Agreement by Company; (vii) is furnished by GTSI to others\nnot in a confidential relationship with GTSI without restrictions similar to those herein on the right of the receiving party to the use or disclosure of\nthe Confidential Information; (viii) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body.\n(c) In the event of a disclosure under subsection (b)(viii) above, Company will give GTSI written notice of such order or requirement as soon\nas\npracticable prior to disclosure of the Confidential Information.\n3. The parties acknowledge and agree that the other party would not have an adequate remedy at law and would be irreparably harmed in the event\nthat any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly,\neach party agrees that the other party will be entitled to injunctive relief to prevent breaches of this Agreement and to specifically enforce the terms\nand provisions hereof, in addition to any other remedy to which such party may be entitled, at law or equity.\n4. This Agreement is governed by and interpreted in accordance with the laws of the Commonwealth of Virginia. Any and all claims, controversies\nor disputes arising out of or in connection with this Agreement will be resolved in accordance with this Section. Virginia law shall apply unless the\nissue relates to Federal procurement regulations or statutes and in such case Federal procurement law as interpreted by the United States Boards\nof\nContract Appeals and the United States Court of Federal Claims may apply.\n5. The term of this Agreement is two (2) years from the effective date ("Term"), provided that the duty to protect the Confidential Information of the\nother party will be no less than two (2) years from the date of actual disclosure. Any claim a party has for breach of this Agreement must be filed\nwithin 1 year of GTSI's first knowledge of the breach, and no later than 1 year after the termination of this Agreement.\n6. Confidential Information remains the property of the GTSI. No rights, licenses, trademarks, inventions, copyrights, patents, or other intellectual\nproperty rights are implied or granted under this Agreement, except to use the Confidential Information as provided in this Agreement.\nPage 1 of 2\n7. Each party warrants that it has the right to disclose all Confidential Information that it discloses to the other party. Each party will indemnify and\ndefend the other from all third-party claims resulting from the negligent or wrongful disclosure by the indemnifying party of a third-party's\nconfidential information. Otherwise, neither party makes any representation or warranty about the Confidential Information. Neither party will\nbe\nliable for indirect, incidental, punitive, or consequential damages for any cause of action, whether in contract, tort, or otherwise, arising out of a\nbreach of this Agreement.\n8. No Duty to Negotiate. Each Party reserves the right, in the sole and absolute discretion of such party, to reject any and all proposals made by any\nother party concerning any Potential Transaction(s) and to terminate negotiations and discussions with the other party at any time.\n9. Each party will comply with the applicable United States export laws and regulations for any technical data exchanged under this Agreement.\n10. Each Party (i) is aware that the United States securities laws prohibit any person who has material, nonpublic information about a public\ncompany from purchasing or selling securities of that company, or from communicating that information to any other person under circumstances\nwhere it is reasonably foreseeable that such person is likely to purchase or sell those securities, (ii) is familiar with the Exchange Act, and (iii) shall\nnot use, nor cause any third party to use, any Information in contravention of the Exchange Act.\n11. This Agreement: (a) represents the parties' entire understanding regarding Confidential Information, and supersedes any prior agreements or\ndiscussions, written or oral, regarding Confidential Information; (b) may be modified only by written amendment signed by the parties' officers or\nauthorized designees; (c) is to be considered severable, and if any provision of this Agreement is illegal or unenforceable, the unaffected provisions\nwill remain in effect; (d) contains headings for reference only; these headings have no effect on any provision's meaning; and (e) does not extend to\nany third-party beneficiaries. If either party fails to enforce any right or remedy under this Agreement, that failure is not a waiver of the right or\nremedy for any other breach or failure by the other party.\n12. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute\none and the same instrument. In the event the parties hereto execute this Agreement in the form of a facsimile or internet transmission, the parties\nagree promptly thereafter to execute identical non-facsimile counterparts dated as of the execution date of the facsimile or internet version.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date\nfirst above-written.\nGTSI Corp.\nCompany: UNICOM Systems, Inc.\nBy: /s/ Sterling Phillips\nBy: /s/ Neil Watt\nPrint Name: Sterling Phillips\nPrint Name: Neil Watt, Esg.\nPrint Title: CEO\nPrint Title: Chief Financial Officer & Corporate Counsel\nDate:\n2/24/12\nDate:\nFebruary. 24, 2012\nFor Company\nFor Notices\nGTSI Corp.\nAttn: Neil Watt\nAttn: Legal Department\nAddress:\nAddress:\nUNICOM Plaza Suite 310,\n2553 Dulles View Drive, Suite 100\n15535 San Fernando Mission Boulevard\nHerndon, VA 20171\nMission Hills, California 91345\nPage 2 of 2	EX-99.(E)(4) 3 d354024dex99e4.htm EXHIBIT (E)(4)\nExhibit (e)(4)\nLOGO\nGTSI CORP.\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) is dated and made effective this 24th day of February, 2012, by and between GTSI Corp.,\n(“GTSI”) with offices at 2553 Dulles View Drive, Suite 100, Herndon, Virginia 20171, and UNICOM Systems, Inc. (“Company”), with offices at\nUNICOM Plaza Suite 310, 15535 San Fernando Mission Boulevard, Mission Hills, California 91345;\nWHEREAS, the parties hereto wish to explore possible transactions between the parties, including, but not limited to, a possible business\ncombination, or acquisition of all or a portion of, or investment in, GTSI by the Company (the “Potential Transactions,”); and\nWHEREAS, GTSI is willing to disclose certain information, including, without limitation, non-public, confidential, and/or proprietary information,\nto Company for purposes of, and in connection with, an evaluation by Company of the Potential Transactions (the “Evaluation”);\nNOW, THEREFORE, the parties hereto agree as follows:\n1. For purposes of this Agreement, the term “Confidential Information” means the GTSI information which is disclosed to Company under this\nAgreement (including but not limited to information, technical data or know-how, regardless of form, proprietary or otherwise, maintained in\nconfidence by GTSI, including without limitation of the generality of the foregoing any information, pricing, technical data or know-how relating to\nGTSI’s research, operations, products, services, inventions, manufacturing processes, production techniques, purchasing, financial condition,\naccounting, assembly, distribution, engineering, marketing, merchandising and/or sales, which is disclosed by GTSI or on its behalf whether before,\non or after the date hereof, directly or indirectly, in writing, orally, or by drawings or inspection of parts or equipment, to Company or any of its\nemployees or agents) which is/are in written, graphic, recorded, photographic or any machine readable form (or oral information reduced to writing\nwithin 72 hours after disclosure to Company), and which, in any case, is/are conspicuously marked or otherwise labeled “Confidential”,\n“Proprietary”, “Sensitive” or in another manner indicating its confidential and/or proprietary nature or which, in the case of oral information, is\nspecifically identified at the time of disclosure as being confidential, proprietary or sensitive.\n2. (a) Company will use such Confidential Information for its own internal use only during the Evaluation and will not use such information to\ncompete with GTSI. Company shall use the same degree of care it uses to protect and safeguard the confidentiality of its own proprietary\ninformation to not disclose such Confidential Information to any person or persons inside Company, except those persons with a genuine need to\nknow, and in no event to persons outside Company. Company covenants that such degree of care is, at a minimum, reasonably designed to protect\nthe confidentiality of proprietary and confidential information.\n(b) Company will not be liable for disclosure of any such Confidential Information if the same: (i) was in the public domain at the time it was\ndisclosed; (ii) was known to Company prior to the time of disclosure; (iii) is disclosed with the prior written approval of GTSI; (iv) is or becomes\npublicly known through no wrongful act of Company; (v) is disclosed after two years from the termination or expiration of this Agreement;\n(vi) becomes known to Company from a source other than GTSI without breach of this Agreement by Company; (vii) is furnished by GTSI to others\nnot in a confidential relationship with GTSI without restrictions similar to those herein on the right of the receiving party to the use or disclosure of\nthe Confidential Information; (viii) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body.\n(c) In the event of a disclosure under subsection (b)(viii) above, Company will give GTSI written notice of such order or requirement as soon as\npracticable prior to disclosure of the Confidential Information.\n3. The parties acknowledge and agree that the other party would not have an adequate remedy at law and would be irreparably harmed in the event\nthat any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly,\neach party agrees that the other party will be entitled to injunctive relief to prevent breaches of this Agreement and to specifically enforce the terms\nand provisions hereof, in addition to any other remedy to which such party may be entitled, at law or equity.\n4. This Agreement is governed by and interpreted in accordance with the laws of the Commonwealth of Virginia. Any and all claims, controversies\nor disputes arising out of or in connection with this Agreement will be resolved in accordance with this Section. Virginia law shall apply unless the\nissue relates to Federal procurement regulations or statutes and in such case Federal procurement law as interpreted by the United States Boards of\nContract Appeals and the United States Court of Federal Claims may apply.\n5. The term of this Agreement is two (2) years from the effective date (“Term”), provided that the duty to protect the Confidential Information of the\nother party will be no less than two (2) years from the date of actual disclosure. Any claim a party has for breach of this Agreement must be filed\nwithin 1 year of GTSI’s first knowledge of the breach, and no later than 1 year after the termination of this Agreement.\n6. Confidential Information remains the property of the GTSI. No rights, licenses, trademarks, inventions, copyrights, patents, or other intellectual\nproperty rights are implied or granted under this Agreement, except to use the Confidential Information as provided in this Agreement.\nPage1of2\n7. Each party warrants that it has the right to disclose all Confidential Information that it discloses to the other party. Each party will indemnify and\ndefend the other from all third-party claims resulting from the negligent or wrongful disclosure by the indemnifying party of a third-party’s\nconfidential information. Otherwise, neither party makes any representation or warranty about the Confidential Information. Neither party will be\nliable for indirect, incidental, punitive, or consequential damages for any cause of action, whether in contract, tort, or otherwise, arising out of a\nbreach of this Agreement.\n8. No Duty to Negotiate. Each Party reserves the right, in the sole and absolute discretion of such party, to reject any and all proposals made by any\nother party concerning any Potential Transaction(s) and to terminate negotiations and discussions with the other party at any time.\n9. Each party will comply with the applicable United States export laws and regulations for any technical data exchanged under this Agreement.\n10. Each Party (i) is aware that the United States securities laws prohibit any person who has material, nonpublic information about a public\ncompany from purchasing or selling securities of that company, or from communicating that information to any other person under circumstances\nwhere it is reasonably foreseeable that such person is likely to purchase or sell those securities, (ii) is familiar with the Exchange Act, and (iii) shall\nnot use, nor cause any third party to use, any Information in contravention of the Exchange Act.\n11. This Agreement: (a) represents the parties’ entire understanding regarding Confidential Information, and supersedes any prior agreements or\ndiscussions, written or oral, regarding Confidential Information; (b) may be modified only by written amendment signed by the parties’ officers or\nauthorized designees; (c) is to be considered severable, and if any provision of this Agreement is illegal or unenforceable, the unaffected provisions\nwill remain in effect; (d) contains headings for reference only; these headings have no effect on any provision’s meaning; and (e) does not extend to\nany third-party beneficiaries. If either party fails to enforce any right or remedy under this Agreement, that failure is not a waiver of the right or\nremedy for any other breach or failure by the other party.\n12. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute\none and the same instrument. In the event the parties hereto execute this Agreement in the form of a facsimile or internet transmission, the parties\nagree promptly thereafter to execute identical non-facsimile counterparts dated as of the execution date of the facsimile or internet version.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date\nfirst above-written.\nGTSI Corp.\nCompany: UNICOM Systems, Inc.\nBy: /s/ Sterling Phillips\nBy: /s/ Neil Watt\nPrint Name: Sterling Phillips\nPrint Name: Neil Watt, Esq.\nPrint Title: CEO\nPrint Title: Chief Financial Officer & Corporate Counsel\nDate:\n2/24/12\nDate:\nFebruary 24, 2012\nFor Notices\nFor Company\nGTSI Corp.\nAttn: Neil Watt\nAttn: Legal Department\nAddress:\nUNICOM Plaza Suite 310,\n15535 San Fernando Mission Boulevard\nMission Hills, California 91345\nAddress:\n2553 Dulles View Drive, Suite 100\nHerndon, VA 20171\nPage2of2
+4ef511f31db8409c73e5c4e72d2c2b5f.pdf	effective_date jurisdiction party term	LOGO\nConfidentiality and Non-Disclosure Agreement\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) is made effective as of the 29th day of Dec. 2006, by and between SUPERMICRO\nComputer, Inc., a California Corporation, (“herein “SUPERMICRO”) and Ablecom Technology Inc. to assure the protection and preservation of the\nconfidential, and/or proprietary nature of the information to be disclosed or made available between the parties in connection with certain\nnegotiation, discussions, or manufacturing contracts.\nWHEREAS, in order to pursue these negotiations, discussions, or manufacturing contracts, the parties have agreed to mutual disclosures of certain\ndata and other information which are of a proprietary and confidential nature (as defined in Paragraph 3 below and referred to herein as\n“Confidential Information”).\nNOW, THEREFORE, in reliance upon and consideration of the following undertakings, and for the other good and valuable consideration, the\nreceipt of which is hereby acknowledged, the parties to this Agreement hereby agree as follows:\nSubject to the limitation set forth in Paragraph 5, Confidential Information shall be deemed to include any information, roadmap, schematic diagram,\nGerber data, Bill of Material, process, technique, compound, library, method of synthesis, program, design, drawing, formula or test data relating to\nany research project, work in progress, development, engineering, manufacturing, marketing, servicing, financing or personal matter relating to the\ndisclosing party, its present or future products, sales, suppliers, distributors, customers, employees, investors, or business, whether in oral, written,\ngraphic, or electronic forms.\nThe term “Confidential Information” shall not be deemed to include information which, to the extent that the recipients of Confidential Information\ncan establish by competent written proof:\na.\nat the time of disclosure is in public domain;\nb.\nafter disclosure, became part of the public domain by publication or otherwise, except by (i) breach of this Agreement by the recipient or\n(ii) disclosure by any person or affiliated company to whom Confidential Information was disclosed under this Agreement;\nc.\nwas (i) in the recipient’s possession in documentary form at the time of disclosure by the disclosing party or (ii) subsequently and\nindependently developed by the recipient’s employee who had no knowledge of or access to the Confidential Information;\nd.\nrecipient shall receive from a third party who has the lawful right to disclose the Confidential Information and who shall not have\nobtained the Confidential Information either directly or indirectly from the disclosing party; or\ne.\ndisclosure is required by law or regulation.\nIn the event the Confidential Information is required to be disclosed pursuant to subsection (e), the party required to make disclosure shall notify the\nother to allow the party to assert whatever exclusions or exemptions may be available to it under such law or regulation.\nEach party shall maintain in trust and confidence and not to disclose to any third party or use for any unauthorized purpose any Confidential\nInformation received from the other party. Each party may use such Confidential Information only for the purpose of engaging in discussions\nrelating to a potential business relationship between the parties. The Confidential Information shall not be used for any purpose or in any manner that\nwould constitute a violation of any laws or regulations, including, without limitation, the import or export control laws of the United States. No other\nrights or license to trademarks, inventions, copyrights, or patents are implied or granted under this Agreement. Confidential Information supplied\nshall not be reproduced in any form.\nThe responsibilities of the parties are limited to using their reasonable and best efforts to protect the Confidential Information from unauthorized use\nor disclosure. Both parties shall advise their employees or agents who might have access to such Confidential Information of the confidential nature\nthereof. No Confidential Information shall be disclosed to any officer, employee, or agent of either party who does not have a need to know for such\ninformation.\nAll Confidential Information (including copies thereof) shall remain the property of the disclosing party, and shall be returned to the disclosing party\nafter the receiving party’s need has expired, or upon request of the disclosing party, and in any event, upon completion or termination of this\nAgreement.\nThis Agreement shall continue in full force and effect for so long as the parties continue to exchange Confidential Information. This Agreement may\nbe terminated any time upon ten (10) days’ written notice to the other party. The termination of this Agreement shall not relieve either party of\nprovisions hereof and shall survive the termination of this agreement for a period of seven (7) years from the date of such termination.\nThis agreement shall be governed by the laws of the State of California. Each party agrees to that the Confidential Information is subject to the\nexport and customs laws and regulations of the United States and any other applicable country and shall not export, re-export or transship, directly or\nindirectly, such information to any country without first obtaining proper governmental approval.\nNeither party shall reveal the fact that the Confidential Information has been disclosed pursuant to this Agreement. It is understood that disclosure\npursuant to this Agreement is not a public disclosure or sale or offer for sale of any product.\nThis Agreement contains the entire agreement of the parties and may not be changed, modified, amended, or supplemented except by written\ninstrument signed by both parties. The unenforceability of any provision on this Agreement shall not affect the enforceability of any other provision\nof this Agreement. Neither this Agreement nor the disclosure of any Confidential Information pursuant to this Agreement by any party shall restrict\nsuch party from disclosing any of its Confidential Information to any third party.\nEach party hereby acknowledges and agrees that in the event of any breach of this Agreement by the party, including, without limitation, the actual\nor threatened disclosure of a disclosing party’s Confidential Information without the prior, written consent of the disclosing party, the disclosing\nparty will suffer an irreparable injury, such that no remedy of law will afford it adequate protection against, or appropriate compensation for, such\ninjury. Accordingly, each party hereby agrees that the other party shall be entitled to specific performance of a receiving party’s obligations under\nthis Agreement, as well as such further injunctive relief may be granted by a court of competent jurisdiction.\nThis Agreement shall remain in effect for a period no less than three years from the above date.\nAGREED TO AS OF THE FIRST DATE ABOVE:\nSuper Micro Computer, Inc.\nCompany\nAddress\n980 Rock Avenue\nSan Jose, CA 95131\nSigned by: /s/ Howard Hideshima\nSigned by: /s/ Steve Liang\nName:\nHoward Hideshima\nName:\nSteve Liang\nTitle:\nCFO\nTitle:\nPresident	».LOGO\nConfidentiality and Non-Disclosure Agreement\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) is made effective as of the 29th day of Dec. 2006, by and between SUPERMICRO\nComputer, Inc., a California Corporation, (“herein “SUPERMICRO”) and Ablecom Technology Inc. to assure the protection and preservation of the\nconfidential, and/or proprietary nature of the information to be disclosed or made available between the parties in connection with certain\nnegotiation, discussions, or manufacturing contracts.\nWHEREAS, in order to pursue these negotiations, discussions, or manufacturing contracts, the parties have agreed to mutual disclosures of certain\ndata and other information which are of a proprietary and confidential nature (as defined in Paragraph 3 below and referred to herein as\n“Confidential Information”).\nNOW, THEREFORE, in reliance upon and consideration of the following undertakings, and for the other good and valuable consideration, the\nreceipt of which is hereby acknowledged, the parties to this Agreement hereby agree as follows:\nSubject to the limitation set forth in Paragraph 5, Confidential Information shall be deemed to include any information, roadmap, schematic diagram,\nGerber data, Bill of Material, process, technique, compound, library, method of synthesis, program, design, drawing, formula or test data relating to\nany research project, work in progress, development, engineering, manufacturing, marketing, servicing, financing or personal matter relating to the\ndisclosing party, its present or future products, sales, suppliers, distributors, customers, employees, investors, or business, whether in oral, written,\ngraphic, or electronic forms.\nThe term “Confidential Information” shall not be deemed to include information which, to the extent that the recipients of Confidential Information\ncan establish by competent written proof:\na.  at the time of disclosure is in public domain;\nb.  after disclosure, became part of the public domain by publication or otherwise, except by (i) breach of this Agreement by the recipient or\n(ii) disclosure by any person or affiliated company to whom Confidential Information was disclosed under this Agreement;\nc.  was (i) in the recipient’s possession in documentary form at the time of disclosure by the disclosing party or (ii) subsequently and\nindependently developed by the recipient’s employee who had no knowledge of or access to the Confidential Information;\nd.  recipient shall receive from a third party who has the lawful right to disclose the Confidential Information and who shall not have\nobtained the Confidential Information either directly or indirectly from the disclosing party; or\ne.  disclosure is required by law or regulation.\nIn the event the Confidential Information is required to be disclosed pursuant to subsection (e), the party required to make disclosure shall notify the\nother to allow the party to assert whatever exclusions or exemptions may be available to it under such law or regulation.\nEach party shall maintain in trust and confidence and not to disclose to any third party or use for any unauthorized purpose any Confidential\nInformation received from the other party. Each party may use such Confidential Information only for the purpose of engaging in discussions\nrelating to a potential business relationship between the parties. The Confidential Information shall not be used for any purpose or in any manner that\nwould constitute a violation of any laws or regulations, including, without limitation, the import or export control laws of the United States. No other\nrights or license to trademarks, inventions, copyrights, or patents are implied or granted under this Agreement. Confidential Information supplied\nshall not be reproduced in any form.\nThe responsibilities of the parties are limited to using their reasonable and best efforts to protect the Confidential Information from unauthorized use\nor disclosure. Both parties shall advise their employees or agents who might have access to such Confidential Information of the confidential nature\nthereof. No Confidential Information shall be disclosed to any officer, employee, or agent of either party who does not have a need to know for such\ninformation.\nAll Confidential Information (including copies thereof) shall remain the property of the disclosing party, and shall be returned to the disclosing party\nafter the receiving party’s need has expired, or upon request of the disclosing party, and in any event, upon completion or termination of this\nAgreement.\nThis Agreement shall continue in full force and effect for so long as the parties continue to exchange Confidential Information. This Agreement may\nbe terminated any time upon ten (10) days’ written notice to the other party. The termination of this Agreement shall not relieve either party of\nprovisions hereof and shall survive the termination of this agreement for a period of seven (7) years from the date of such termination.\nThis agreement shall be governed by the laws of the State of California. Each party agrees to that the Confidential Information is subject to the\nexport and customs laws and regulations of the United States and any other applicable country and shall not export, re-export or transship, directly or\nindirectly, such information to any country without first obtaining proper governmental approval.\nNeither party shall reveal the fact that the Confidential Information has been disclosed pursuant to this Agreement. It is understood that disclosure\npursuant to this Agreement is not a public disclosure or sale or offer for sale of any product.\nThis Agreement contains the entire agreement of the parties and may not be changed, modified, amended, or supplemented except by written\ninstrument signed by both parties. The unenforceability of any provision on this Agreement shall not affect the enforceability of any other provision\nof this Agreement. Neither this Agreement nor the disclosure of any Confidential Information pursuant to this Agreement by any party shall restrict\nsuch party from disclosing any of its Confidential Information to any third party.\nEach party hereby acknowledges and agrees that in the event of any breach of this Agreement by the party, including, without limitation, the actual\nor threatened disclosure of a disclosing party’s Confidential Information without the prior, written consent of the disclosing party, the disclosing\nparty will suffer an irreparable injury, such that no remedy of law will afford it adequate protection against, or appropriate compensation for, such\ninjury. Accordingly, each party hereby agrees that the other party shall be entitled to specific performance of a receiving party’s obligations under\nthis Agreement, as well as such further injunctive relief may be granted by a court of competent jurisdiction.\nThis Agreement shall remain in effect for a period no less than three years from the above date.\nAGREED TO AS OF THE FIRST DATE ABOVE:\nSuper Micro Computer, Inc. Company\nAddress\n980 Rock Avenue\nSan Jose, CA 95131\nSigned by: /s/ Howard Hideshima Signed by: /s/ Steve Liang\nName: Howard Hideshima Name: Steve Liang\nTitle: CFO Title: President	LoGo\nConfidentiality and Non-Disclosure Agreement\nThis NON-DISCLOSURE AGREEMENT ("Agreement") is made effective as of the 29th day of Dec. 2006, by and between SUPERMICRO\nComputer,\nInc., a California Corporation, ("herein "SUPERMICRO") and Ablecom Technology Inc. to assure the protection and preservation of the\nconfidential, and/or proprietary nature of the information to be disclosed or made available between the parties in connection with certain\nnegotiation, discussions, or manufacturing contracts.\nWHEREAS, in order to pursue these negotiations, discussions, or manufacturing contracts, the parties have agreed to mutual disclosures of certain\ndata and other information which are of a proprietary and confidential nature (as defined in Paragraph 3 below and referred to herein as\n"Confidential Information").\nNOW, THEREFORE, in reliance upon and consideration of the following undertakings, and for the other good and valuable consideration, the\nreceipt of which is hereby acknowledged, the parties to this Agreement hereby agree as follows:\nSubject to the limitation set forth in Paragraph 5, Confidential Information shall be deemed to include any information, roadmap, schematic diagram,\nGerber data, Bill of Material, process, technique, compound, library, method of synthesis, program, design, drawing, formula or test data relating to\nany research project, work in progress, development, engineering, manufacturing, marketing, servicing, financing or personal matter relating to the\ndisclosing party, its present or future products, sales, suppliers, distributors, customers, employees, investors, or business, whether in oral, written,\ngraphic, or electronic forms.\nThe term "Confidential Information" shall not be deemed to include information which, to the extent that the recipients of Confidential Information\ncan establish by competent written proof:\na.\nat the time of disclosure is in public domain;\nb. after disclosure, became part of the public domain by publication or otherwise, except by (i) breach of this Agreement by the recipient or\n(ii) disclosure by any person or affiliated company to whom Confidential Information was disclosed under this Agreement;\nC.\nwas (i) in the recipient's possession in documentary form at the time of disclosure by the disclosing party or (ii) subsequently and\nindependently developed by the recipient's employee who had no knowledge of or access to the Confidential Information;\nd.\nrecipient shall receive from a third party who has the lawful right to disclose the Confidentia Information and who shall not have\nobtained the Confidential Information either directly or indirectly from the disclosing party; or\ne.\ndisclosure is required by law or regulation.\nIn the event the Confidential Information is required to be disclosed pursuant to subsection (e), the party required to make disclosure shall notify the\nother to allow the party to assert whatever exclusions or exemptions may be available to it under such law or regulation.\nEach party shall maintain in trust and confidence and not to disclose to any third party or use for any unauthorized purpose any Confidential\nInformation\nreceived\nfrom\nthe\nother\nparty.\nEach\nparty\nmay\nuse\nsuch\nConfidential\nInformation\nonly\nfor\nthe\npurpose\nof\nengaging\nin\ndiscussions\nrelating to a potential business relationship between the parties The Confidential Information shall not be used for any purpose or in any manner that\nwould constitute a violation of any laws or regulations, including, without limitation, the import or export control laws of the United States. No other\nrights or license to trademarks, inventions, copyrights, or patents are implied or granted under this Agreement. Confidential Information supplied\nshall not be reproduced in any form.\nThe\nresponsibilities\nof\nthe\nparties\nare\nlimited\nto\nusing\ntheir\nreasonable\nand\nbest\nefforts\nto\nprotect\nthe\nConfidential\nInformation\nfrom\nunauthorized\nuse\nor disclosure. Both parties shall advise their employees or agents who might have access to such Confidential Information of the confidential nature\nthereof. No Confidential Information shall be disclosed to any officer, employee, or agent of either party who does not have a need to know for such\ninformation.\nAll Confidential Information (including copies thereof) shall remain the property of the disclosing party, and shall be returned to the disclosing party\nafter the receiving party's need has expired, or upon request of the disclosing party, and in any event, upon completion or termination of this\nAgreement.\nThis Agreement shall continue in full force and effect for so long as the parties continue to exchange Confidential Information. This Agreement may\nbe terminated any time upon ten (10) days' written notice to the other party. The termination of this Agreement shall not relieve either party of\nprovisions hereof and shall survive the termination of this agreement for a period of seven (7) years from the date of such termination.\nThis agreement shall be governed by the laws of the State of California. Each party agrees to that the Confidential Information is subject to the\nexport and customs laws and regulations of the United States and any other applicable country and shall not export, re-export or transship, directly\nor\nindirectly, such information to any country without first obtaining proper governmental approval.\nNeither party shall reveal the fact that the Confidential Information has been disclosed pursuant to this Agreement. It is understood that disclosure\npursuant to this Agreement is not a public disclosure or sale or offer for sale of any product.\nThis Agreement contains the entire agreement of the parties and may not be changed, modified, amended, or supplemented except by written\ninstrument signed by both parties. The unenforceability of any provision on this Agreement shall not affect the enforceability of any other provision\nof this Agreement. Neither this Agreement nor the disclosure of any Confidential Information pursuant to this Agreement by any party shall restrict\nsuch party from disclosing any of its Confidential Information to any third party.\nEach party hereby acknowledges and agrees that in the event of any breach of this Agreement by the party, including, without limitation, the actual\nor threatened disclosure of a disclosing party's Confidential Information without the prior, written consent of the disclosing party, the disclosing\nparty will suffer an irreparable injury, such that no remedy of law will afford it adequate protection against, or appropriate compensation for, such\ninjury. Accordingly, each party hereby agrees that the other party shall be entitled to specific performance of a receiving party's obligations under\nthis Agreement, as well as such further injunctive relief may be granted by a court of competent jurisdiction.\nThis Agreement shall remain in effect for a period no less than three years from the above date.\nAGREED TO AS OF THE FIRST DATE ABOVE:\nSuper Micro Computer, Inc.\nCompany\nAddress\n980 Rock Avenue\nSan Jose, CA 95131\nSigned by: /s/ Howard Hideshima\nSigned by: /s/ Steve Liang\nName:\nHoward Hideshima\nName:\nSteve Liang\nTitle:\nCFO\nTitle:\nPresident	LOGO\nConfidentiality and Non-Disclosure Agreement\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) is made effective as of the 29th day of Dec. 2006, by and between SUPERMICRO\nComputer, Inc., a California Corporation, (“herein “SUPERMICRO”) and Ablecom Technology Inc. to assure the protection and preservation of the\nconfidential, and/or proprietary nature of the information to be disclosed or made available between the parties in connection with certain\nnegotiation, discussions, or manufacturing contracts.\nWHEREAS, in order to pursue these negotiations, discussions, or manufacturing contracts, the parties have agreed to mutual disclosures of certain\ndata and other information which are of a proprietary and confidential nature (as defined in Paragraph 3 below and referred to herein as\n“Confidential Information”).\nNOW, THEREFORE, in reliance upon and consideration of the following undertakings, and for the other good and valuable consideration, the\nreceipt of which is hereby acknowledged, the parties to this Agreement hereby agree as follows:\nSubject to the limitation set forth in Paragraph 5, Confidential Information shall be deemed to include any information, roadmap, schematic diagram,\nGerber data, Bill of Material, process, technique, compound, library, method of synthesis, program, design, drawing, formula or test data relating to\nany research project, work in progress, development, engineering, manufacturing, marketing, servicing, financing or personal matter relating to the\ndisclosing party, its present or future products, sales, suppliers, distributors, customers, employees, investors, or business, whether in oral, written,\ngraphic, or electronic forms.\nThe term “Confidential Information” shall not be deemed to include information which, to the extent that the recipients of Confidential Information\ncan establish by competent written proof:\na.\nat the time of disclosure is in public domain;\nb.\nafter disclosure, became part of the public domain by publication or otherwise, except by (i) breach of this Agreement by the recipient or\n(ii) disclosure by any person or affiliated company to whom Confidential Information was disclosed under this Agreement;\nc.\nwas (i) in the recipient’s possession in documentary form at the time of disclosure by the disclosing party or (ii) subsequently and\nindependently developed by the recipient’s employee who had no knowledge of or access to the Confidential Information;\nd.\nrecipient shall receive from a third party who has the lawful right to disclose the Confidential Information and who shall not have\nobtained the Confidential Information either directly or indirectly from the disclosing party; or\ne.\ndisclosure is required by law or regulation.\nIn the event the Confidential Information is required to be disclosed pursuant to subsection (e), the party required to make disclosure shall notify the\nother to allow the party to assert whatever exclusions or exemptions may be available to it under such law or regulation.\nEach party shall maintain in trust and confidence and not to disclose to any third party or use for any unauthorized purpose any Confidential\nInformation received from the other party. Each party may use such Confidential Information only for the purpose of engaging in discussions\nrelating to a potential business relationship between the parties. The Confidential Information shall not be used for any purpose or in any manner that\nwould constitute a violation of any laws or regulations, including, without limitation, the import or export control laws of the United States. No other\nrights or license to trademarks, inventions, copyrights, or patents are implied or granted under this Agreement. Confidential Information supplied\nshall not be reproduced in any form.\nThe responsibilities of the parties are limited to using their reasonable and best efforts to protect the Confidential Information from unauthorized use\nor disclosure. Both parties shall advise their employees or agents who might have access to such Confidential Information of the confidential nature\nthereof. No Confidential Information shall be disclosed to any officer, employee, or agent of either party who does not have a need to know for such\ninformation.\nAll Confidential Information (including copies thereof) shall remain the property of the disclosing party, and shall be returned to the disclosing party\nafter the receiving party’s need has expired, or upon request of the disclosing party, and in any event, upon completion or termination of this\nAgreement.\nThis Agreement shall continue in full force and effect for so long as the parties continue to exchange Confidential Information. This Agreement may\nbe terminated any time upon ten (10) days’ written notice to the other party. The termination of this Agreement shall not relieve either party of\nprovisions hereof and shall survive the termination of this agreement for a period of seven (7) years from the date of such termination.\nThis agreement shall be governed by the laws of the State of California. Each party agrees to that the Confidential Information is subject to the\nexport and customs laws and regulations of the United States and any other applicable country and shall not export, re-export or transship, directly or\nindirectly, such information to any country without first obtaining proper governmental approval.\nNeither party shall reveal the fact that the Confidential Information has been disclosed pursuant to this Agreement. It is understood that disclosure\npursuant to this Agreement is not a public disclosure or sale or offer for sale of any product.\nThis Agreement contains the entire agreement of the parties and may not be changed, modified, amended, or supplemented except by written\ninstrument signed by both parties. The unenforceability of any provision on this Agreement shall not affect the enforceability of any other provision\nof this Agreement. Neither this Agreement nor the disclosure of any Confidential Information pursuant to this Agreement by any party shall restrict\nsuch party from disclosing any of its Confidential Information to any third party.\nEach party hereby acknowledges and agrees that in the event of any breach of this Agreement by the party, including, without limitation, the actual\nor threatened disclosure of a disclosing party’s Confidential Information without the prior, written consent of the disclosing party, the disclosing\nparty will suffer an irreparable injury, such that no remedy of law will afford it adequate protection against, or appropriate compensation for, such\ninjury. Accordingly, each party hereby agrees that the other party shall be entitled to specific performance of a receiving party’s obligations under\nthis Agreement, as well as such further injunctive relief may be granted by a court of competent jurisdiction.\nThis Agreement shall remain in effect for a period no less than three years from the above date.\nAGREED TO AS OF THE FIRST DATE ABOVE:\nSuper Micro Computer, Inc.\nCompany\nAddress\n980 Rock Avenue\nSan Jose, CA 95131\nSigned by: /s/ Howard Hideshima\nSigned by: /s/ Steve Liang\nName:\nHoward Hideshima\nName:\nSteve Liang\nTitle:\nCFO\nTitle:\nPresident
+5020ad373c18782f749b78e7c6ffedad.pdf	effective_date jurisdiction party term	EX-99.1 2 a12-17284_1ex99d1.htm EX-99.1\nExhibit 99.1\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 30th day of July, 2012, by and among HF\nFinancial Corp., a Delaware corporation (along with its affiliates, the “Company”), and Jacobs Asset Management, L.L .C . (the “Recipient” or\n“JAM”). The Company and the Recipient are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties.”\nRECITALS\nA.\nThe Company desires to exchange views and information with JAM, its largest shareholder.\nB.\nThe Company intends to provide JAM access to certain non-public, confidential or proprietary information concerning the\nCompany.\nC.\nIn order to induce the Company to provide access to the Confidential Information (as hereinafter defined), the Recipient\nhereby agrees to be bound by the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of the mutual promises and covenants set forth, and for other good and valuable consideration,\nthe receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:\nARTICLE I\nDEFINITIONS\nSection 1.1\nCertain Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms used in this\nAgreement shall be construed to have the meanings set forth or referenced below:\nThe term “Confidential Information” refers to (i) all business or financial information (including business plans, budgets, forecasts and\nfinancial projections) of the Company or its subsidiaries (or of others having business relationships with the Company), or concerning the Matter,\nwhether or not marked or otherwise identified as confidential or proprietary, (ii) any other information or materials marked or designated as\n“confidential” or “proprietary” by the Company at the time of its disclosure to the Recipient and (iii) any other information or materials that the\nCompany maintains as confidential or that is proprietary to the Company, the nature of which or the circumstances surrounding the disclosure of\nwhich would indicate to a reasonable person that such information or materials are confidential or proprietary. The foregoing information and\nmaterials shall be “Confidential Information” whether evidenced, transferred or transmitted in writing, orally, visually, electronically or by any\nother means, and whether disclosed before or after the date of this Agreement. “Confidential Information” shall also include all Derivative\nMaterials.\nNotwithstanding anything to the contrary in this Agreement, “Confidential Information” shall not include information that (A) is or\nbecomes generally available to the public other than\nas a result of a breach of this Agreement by the Recipient; or (B) is or becomes available to the Recipient on a non-confidential basis from any\nsource other than the Company or its Representatives, which source has represented to the Recipient (and that the Recipient reasonably believes\nafter due inquiry) that such source is entitled to disclose such information without the Recipient being bound by any obligation of confidentiality,\nprovided that upon the Recipient becoming aware that such information is Confidential Information that the source was not entitled to disclose,\nthis Agreement shall thereafter apply to such Confidential Information.\nThe term “Derivative Materials” refers to all summaries, analyses, compilations, data, studies or other documents prepared by the\nRecipient (i) containing, or based in whole or in part on, any Confidential Information provided by the Company or its Representatives, or\n(ii) reflecting the Recipient’s review of the Company or the Recipient’s interest in the Matter.\nThe term “Person” refers to any natural person, corporation, limited liability company, partnership, trust or other legal entity.\nThe term “Representatives” refers to a Person’s directors, officers, employees, attorneys, accountants, consultants, financial advisors\nand other agents and representatives.\nThe term “Recipient” shall include (i) the Recipient, (ii) its affiliates, subsidiaries, and divisions, (iii) any Person that directly or\nindirectly, through intermediaries or otherwise, controls or owns a controlling interest in the Recipient and (iv) the Representatives of any of the\nforegoing Persons.\nARTICLE II\nCONFIDENTIALITY\nSection 2.1\nNon-Disclosure and Non-Use Covenants. As a condition to the Company’s disclosure of the Confidential\nInformation to the Recipient, the Recipient hereby covenants and agrees that all Confidential Information will be kept confidential by the\nRecipient and will not, without the prior written consent of the Company, be disclosed by the Recipient, in any manner whatsoever, in whole or\nin part, and will not be used by the Recipient, directly or indirectly, for any purpose other than facilitating discussion with the Company.\nMoreover, the Recipient agrees to transmit the Confidential Information to only those Representatives who need to know the Confidential\nInformation for the purpose of facilitating the Recipient’s discussion with the Company and who are informed of the confidential nature of the\nConfidential Information and the terms of this Agreement. The Recipient hereby acknowledges that it is aware, and the Recipient agrees that it\nwill advise its Representatives who are informed as to the matters which are the subject of this Agreement, that (i) the Confidential Information\nbeing furnished may contain or may itself be material, non-public information concerning the Company, and (ii) securities laws in the United\nStates prohibit any person who has received material, non-public information concerning the Company or the matters which are the subject of\nthis Agreement from purchasing or selling securities of the Company or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. The Recipient agrees to not\nengage, directly or indirectly, in transactions in Company securities while in possession of Confidential\n2\nInformation, and further agrees that is will be responsible for its compliance with federal and state securities laws. The Recipient will be\nresponsible for any breach of this Agreement by the Recipient or by its Representatives.\nSection 2.2\nConfidentiality of Discussions. The Recipient will not, without the prior written consent of the Company, disclose\nthe status of any discussions between the Parties, except as may be required by law or by the rules of any recognized stock exchange and then, if\ncircumstances permit, only with prompt advance written notice to the Company. Any disclosure made pursuant to the prior sentence shall be no\nmore extensive than is necessary to meet the minimum requirement imposed on the Person making such disclosure.\nSection 2.3\nCompelled Disclosure. In the event that the Recipient is requested (by oral questions, interrogatories, requests for\ninformation or documents, subpoena, civil investigate demand or similar process) to disclose any part of the Confidential Information, the\nRecipient shall notify the Company promptly of such request(s), and the documents requested thereby, so that the Company may seek an\nappropriate protective order and/or waive in writing the Recipient’s obligation not to disclose the Confidential Information. If, in the absence of\na protective order or the receipt of a waiver hereunder, the Recipient is nonetheless compelled to disclose all or part of the Confidential\nInformation or else stand liable for contempt or suffer other censure or penalty from any tribunal or governmental or similar authority, the\nRecipient may disclose such portion of the Confidential Information required to be disclosed without liability hereunder; provided, however, that\nthe Recipient shall deliver to the Company written notice of the Confidential Information to be disclosed as far in advance of its disclosure as is\npracticable, and shall use commercially reasonable efforts (at the Company’s expense) to obtain an order or other reliable assurance that\nconfidential treatment will be accorded to such portion of the Confidential Information required to be disclosed. Notwithstanding the foregoing,\nthe Recipient may disclose the Confidential Information to any regulatory agency in the normal course of an examination, audit or investigation\ninvolving the Recipient.\nSection 2.4\nDocument Disposition. The Confidential Information (except for Derivative Materials), and all copies thereof, will\nremain the absolute property of the Company and will be returned to the Company or destroyed (and such destruction confirmed in writing by an\nofficer of the Recipient) without retaining any copies thereof immediately upon the Company’s request. Derivative Materials will be\nimmediately destroyed at the request of the Company and such destruction will be confirmed to the Company in writing by an officer of the\nRecipient.\nSection 2.5\nDisclaimers. The Recipient acknowledges that neither the Company nor any of its Representatives makes any\nrepresentation or warranty as to the accuracy or completeness of the Confidential Information. The Recipient agrees that neither the Company\nnor any of its Representatives shall have any liability to the Recipient as a result of their reliance on the Confidential Information. The Recipient\nhereby agrees that in no event will the Recipient have or assert any claims whatsoever against the Company or any of the Company’s\nRepresentatives relating to or in any way connected with the subject matter of this Agreement.\n3\nSection 2.6\nDesignated Representatives. The Recipient shall have no discussion, correspondence or other contact with the\nCompany or any of its employees, customers or suppliers concerning the Matter except with “Designated Representatives” of the Company.\n“Designated Representatives” shall mean the Chairman of the Board of Directors of the Company and persons designated by him.\nSection 2.7\nSurvival. The restrictions imposed on the disclosure of Confidential Information shall continue until the lesser of\nsuch time as the information disclosed hereunder is no longer Confidential Information and one (1) year from the date first written above,\nprovided, that no such termination shall relieve Recipient from any liability relating to any prior breach of this Agreement.\nARTICLE III\nCOVENANT OF THE COMPANY\nSection 3.1\nInformation and Access. The Company will provide JAM access to certain non-public, confidential or proprietary\ninformation about the Company (the “Confidential Information”) and receive and consider JAM’s input on the financial services industry, market\nconditions and trends and the Company’s operational performance, opportunities and direction.\nARTICLE IV\nTERM AND TERMINATION\nSection 4.1\nTerm. Except as set forth in Article II, this Agreement shall terminate upon the earlier of (i) the Company’s 2012\nAnnual Meeting of Shareholders or (ii) the Company’s receipt of the notice required under the Company’s bylaws from JAM or its affiliates\nrequired to nominate a director for election at a meeting of the Company’s shareholders.\nARTICLE V\nMISCELLANEOUS\nSection 5.1\nDisclosure of Agreement. The parties contemplate that JAM will file with the SEC an amendment to its Schedule\n13D with respect to the Company attaching this Agreement and that the Company will file with the SEC a current report on Form 8-K attaching\nthis Agreement.\nSection 5.2\nCompliance with Securities Laws. As of the date hereof and during the Term of the Agreement, JAM is and will\nremain in compliance with all applicable state and federal securities laws with regard to its investment in the Company and its rights and\nresponsibilities under this Agreement, including but not limited to, the Securities Act of 1933, the Securities Exchange Act of 1934, and the\nrules and regulations promulgated thereunder.\nSection 5.3\nCompliance with Banking Laws. As of the date hereof and during the Term of the Agreement, JAM is and will\nremain in compliance with all applicable banking laws with regard to its investment in the Company and its rights and responsibilities under this\nAgreement, including but not limited to, the Bank Holding Company Act of 1956, the National Bank Act, the Federal Deposit Insurance Act, the\nBank Merger Act, the Change in Bank Control\n4\nAct and the Federal Reserve Board, Office of Comptroller of the Currency and Federal Deposit Insurance Corporation regulations thereunder.\nSection 5.4\nRemedies. The Recipient agrees that due to the nature of this Agreement and the Confidential Information, money\ndamages would not be a sufficient remedy for any breach of this Agreement by the Recipient and that the Company shall be entitled to seek\nspecific performance, injunctive and/or other equitable relief as a remedy for any such breach. Such remedy shall not be deemed to be the\nexclusive remedy of the Company for any breach by the Recipient of this Agreement, but shall be in addition to all other remedies available to\nthe Company at law or in equity. The Recipient hereby waives any requirement for the securing or posting of any bond in connection with such\nremedy.\nSection 5.5\nExpenses. The Parties will pay their own expenses with respect to this Agreement.\nSection 5.6\nSeverability. In the event that any one or more of the provisions contained in this Agreement, or the application\nthereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any\nsuch provision in every other respect and of the remaining provisions contained in this Agreement shall not be in any way impaired thereby, it\nbeing intended that all of the rights and privileges of the Parties hereto shall be enforceable to the fullest extent permitted by law. If any court\ndetermines that any of the provisions of this Agreement, or any part thereof, are unenforceable because of the duration or scope of such\nprovision, the duration or scope of such provision, as the case may be, shall be reduced so that such provision becomes enforceable and, in its\nreduced form, such provision shall then be enforceable and shall be enforced.\nSection 5.7\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws of the State of\nDelaware applicable to agreements made and to be performed within such state, without giving effect to any choice of law principles.\nSection 5.8\nMiscellaneous. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter\nhereof and it replaces and supersedes all prior agreements between the Parties. No provision of this Agreement may be waived or amended\nunless such waiver or amendment is in writing. No failure or delay by the Company in exercising any right, power or privilege under this\nAgreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right,\npower or privilege hereunder. This Agreement may not be assigned by the Recipient, by operation of law or otherwise, without the Company’s\nprior written consent.\nSection 5.9\nExecution. This Agreement may be executed in one or more counterparts, and by facsimile signatures, each of which\nshall be an original document, and all of which together shall constitute one and the same instrument.\n{Remainder of Page Intentionally Left Blank}\n5\nIN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date first written above.\nCOMPANY:\nHF Financial Corp.\n/s/ Michael Vekich\nName: Michael Vekich\nTitle: Chairman\nRECIPIENT:\nJACOBS ASSET MANAGEMENT, LLC\n/s/ Sy Jacobs\nName: Sy Jacobs\nTitle: Managing Member\n6	EX-99.1 2 a12-17284_1ex99d1.htm EX-99.1\nExhibit 99.1\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 30th day of July, 2012, by and among HF\nFinancial Corp., a Delaware corporation (along with its affiliates, the “Company”), and Jacobs Asset Management, L.L.C. (the “Recipient” or\n“JAM”). The Company and the Recipient are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties.”\n \nRECITALS\nA. The Company desires to exchange views and information with JAM, its largest shareholder.\nB. The Company intends to provide JAM access to certain non-public, confidential or proprietary information concerning the\nCompany.\nC. In order to induce the Company to provide access to the Confidential Information (as hereinafter defined), the Recipient\nhereby agrees to be bound by the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of the mutual promises and covenants set forth, and for other good and valuable consideration,\nthe receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:\nARTICLE 1\nDEFINITIONS\nSection 1.1 Certain Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms used in this\nAgreement shall be construed to have the meanings set forth or referenced below:\nThe term “Confidential Information” refers to (i) all business or financial information (including business plans, budgets, forecasts and\nfinancial projections) of the Company or its subsidiaries (or of others having business relationships with the Company), or concerning the Matter,\nwhether or not marked or otherwise identified as confidential or proprietary, (i) any other information or materials marked or designated as\n“confidential” or “proprietary” by the Company at the time of its disclosure to the Recipient and (iii) any other information or materials that the\nCompany maintains as confidential or that is proprietary to the Company, the nature of which or the circumstances surrounding the disclosure of\nwhich would indicate to a reasonable person that such information or materials are confidential or proprietary. The foregoing information and\nmaterials shall be “Confidential Information” whether evidenced, transferred or transmitted in writing, orally, visually, electronically or by any\nother means, and whether disclosed before or after the date of this Agreement. “Confidential Information” shall also include all Derivative\nMaterials.\nNotwithstanding anything to the contrary in this Agreement, “Confidential Information” shall not include information that (A) is or\nbecomes generally available to the public other than\n \nas a result of a breach of this Agreement by the Recipient; or (B) is or becomes available to the Recipient on a non-confidential basis from any\nsource other than the Company or its Representatives, which source has represented to the Recipient (and that the Recipient reasonably believes\nafter due inquiry) that such source is entitled to disclose such information without the Recipient being bound by any obligation of confidentiality,\nprovided that upon the Recipient becoming aware that such information is Confidential Information that the source was not entitled to disclose,\nthis Agreement shall thereafter apply to such Confidential Information.\nThe term “Derivative Materials” refers to all summaries, analyses, compilations, data, studies or other documents prepared by the\nRecipient (i) containing, or based in whole or in part on, any Confidential Information provided by the Company or its Representatives, or\n(ii) reflecting the Recipient’s review of the Company or the Recipient’s interest in the Matter.\nThe term “Person” refers to any natural person, corporation, limited liability company, partnership, trust or other legal entity.\n \nThe term “Representatives” refers to a Person’s directors, officers, employees, attorneys, accountants, consultants, financial advisors\nand other agents and representatives.\nThe term “Recipient” shall include (i) the Recipient, (ii) its affiliates, subsidiaries, and divisions, (iii) any Person that directly or\nindirectly, through intermediaries or otherwise, controls or owns a controlling interest in the Recipient and (iv) the Representatives of any of the\nforegoing Persons.\nARTICLE II\nCONFIDENTIALITY\nSection 2.1 Non-Disclosure and Non-Use Covenants. As a condition to the Company’s disclosure of the Confidential\nInformation to the Recipient, the Recipient hereby covenants and agrees that all Confidential Information will be kept confidential by the\nRecipient and will not, without the prior written consent of the Company, be disclosed by the Recipient, in any manner whatsoever, in whole or\nin part, and will not be used by the Recipient, directly or indirectly, for any purpose other than facilitating discussion with the Company.\nMoreover, the Recipient agrees to transmit the Confidential Information to only those Representatives who need to know the Confidential\nInformation for the purpose of facilitating the Recipient’s discussion with the Company and who are informed of the confidential nature of the\nConfidential Information and the terms of this Agreement. The Recipient hereby acknowledges that it is aware, and the Recipient agrees that it\nwill advise its Representatives who are informed as to the matters which are the subject of this Agreement, that (i) the Confidential Information\nbeing furnished may contain or may itself be material, non-public information concerning the Company, and (ii) securities laws in the United\nStates prohibit any person who has received material, non-public information concerning the Company or the matters which are the subject of\nthis Agreement from purchasing or selling securities of the Company or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. The Recipient agrees to not\nengage, directly or indirectly, in transactions in Company securities while in possession of Confidential\n2\n \nInformation, and further agrees that is will be responsible for its compliance with federal and state securities laws. The Recipient will be\nresponsible for any breach of this Agreement by the Recipient or by its Representatives.\nSection 2.2 Confidentiality of Discussions. The Recipient will not, without the prior written consent of the Company, disclose\nthe status of any discussions between the Parties, except as may be required by law or by the rules of any recognized stock exchange and then, if\ncircumstances permit, only with prompt advance written notice to the Company. Any disclosure made pursuant to the prior sentence shall be no\nmore extensive than is necessary to meet the minimum requirement imposed on the Person making such disclosure.\nSection 2.3 Compelled Disclosure. In the event that the Recipient is requested (by oral questions, interrogatories, requests for\ninformation or documents, subpoena, civil investigate demand or similar process) to disclose any part of the Confidential Information, the\nRecipient shall notify the Company promptly of such request(s), and the documents requested thereby, so that the Company may seek an\nappropriate protective order and/or waive in writing the Recipient’s obligation not to disclose the Confidential Information. If, in the absence of\na protective order or the receipt of a waiver hereunder, the Recipient is nonetheless compelled to disclose all or part of the Confidential\nInformation or else stand liable for contempt or suffer other censure or penalty from any tribunal or governmental or similar authority, the\nRecipient may disclose such portion of the Confidential Information required to be disclosed without liability hereunder; provided, however, that\nthe Recipient shall deliver to the Company written notice of the Confidential Information to be disclosed as far in advance of its disclosure as is\npracticable, and shall use commercially reasonable efforts (at the Company’s expense) to obtain an order or other reliable assurance that\nconfidential treatment will be accorded to such portion of the Confidential Information required to be disclosed. Notwithstanding the foregoing,\nthe Recipient may disclose the Confidential Information to any regulatory agency in the normal course of an examination, audit or investigation\ninvolving the Recipient.\nSection 2.4 Document Disposition. The Confidential Information (except for Derivative Materials), and all copies thereof, will\nremain the absolute property of the Company and will be returned to the Company or destroyed (and such destruction confirmed in writing by an\nofficer of the Recipient) without retaining any copies thereof immediately upon the Company’s request. Derivative Materials will be\nimmediately destroyed at the request of the Company and such destruction will be confirmed to the Company in writing by an officer of the\nRecipient.\nSection 2.5 Disclaimers. The Recipient acknowledges that neither the Company nor any of its Representatives makes any\nrepresentation or warranty as to the accuracy or completeness of the Confidential Information. The Recipient agrees that neither the Company\nnor any of its Representatives shall have any liability to the Recipient as a result of their reliance on the Confidential Information. The Recipient\nhereby agrees that in no event will the Recipient have or assert any claims whatsoever against the Company or any of the Company’s\nRepresentatives relating to or in any way connected with the subject matter of this Agreement.\n3\n \nSection 2.6 Designated Representatives. The Recipient shall have no discussion, correspondence or other contact with the\nCompany or any of its employees, customers or suppliers concerning the Matter except with “Designated Representatives” of the Company.\n“Designated Representatives” shall mean the Chairman of the Board of Directors of the Company and persons designated by him.\nSection 2.7 Survival. The restrictions imposed on the disclosure of Confidential Information shall continue until the lesser of\nsuch time as the information disclosed hereunder is no longer Confidential Information and one (1) year from the date first written above,\nprovided, that no such termination shall relieve Recipient from any liability relating to any prior breach of this Agreement.\nARTICLE III\nCOVENANT OF THE COMPANY\nSection 3.1 Information and Access. The Company will provide JAM access to certain non-public, confidential or proprietary\ninformation about the Company (the “Confidential Information”) and receive and consider JAM’s input on the financial services industry, market\nconditions and trends and the Company’s operational performance, opportunities and direction.\nARTICLE IV\nTERM AND TERMINATION\nSection 4.1 Term. Except as set forth in Article II, this Agreement shall terminate upon the earlier of (i) the Company’s 2012\nAnnual Meeting of Shareholders or (ii) the Company’s receipt of the notice required under the Company’s bylaws from JAM or its affiliates\nrequired to nominate a director for election at a meeting of the Company’s shareholders.\nARTICLE V\nMISCELLANEOUS\nSection 5.1 Disclosure of Agreement. The parties contemplate that JAM will file with the SEC an amendment to its Schedule\n13D with respect to the Company attaching this Agreement and that the Company will file with the SEC a current report on Form 8-K attaching\nthis Agreement.\nSection 5.2 Compliance with Securities Laws. As of the date hereof and during the Term of the Agreement, JAM is and will\nremain in compliance with all applicable state and federal securities laws with regard to its investment in the Company and its rights and\nresponsibilities under this Agreement, including but not limited to, the Securities Act of 1933, the Securities Exchange Act of 1934, and the\nrules and regulations promulgated thereunder.\nSection 5.3 Compliance with Banking L.aws. As of the date hereof and during the Term of the Agreement, JAM is and will\nremain in compliance with all applicable banking laws with regard to its investment in the Company and its rights and responsibilities under this\nAgreement, including but not limited to, the Bank Holding Company Act of 1956, the National Bank Act, the Federal Deposit Insurance Act, the\nBank Merger Act, the Change in Bank Control\n \n \nAct and the Federal Reserve Board, Office of Comptroller of the Currency and Federal Deposit Insurance Corporation regulations thereunder.\nSection 5.4 Remedies. The Recipient agrees that due to the nature of this Agreement and the Confidential Information, money\ndamages would not be a sufficient remedy for any breach of this Agreement by the Recipient and that the Company shall be entitled to seek\nspecific performance, injunctive and/or other equitable relief as a remedy for any such breach. Such remedy shall not be deemed to be the\nexclusive remedy of the Company for any breach by the Recipient of this Agreement, but shall be in addition to all other remedies available to\nthe Company at law or in equity. The Recipient hereby waives any requirement for the securing or posting of any bond in connection with such\nremedy.\nSection 5.5 Expenses. The Parties will pay their own expenses with respect to this Agreement.\nSection 5.6 Severability. In the event that any one or more of the provisions contained in this Agreement, or the application\nthereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any\nsuch provision in every other respect and of the remaining provisions contained in this Agreement shall not be in any way impaired thereby, it\nbeing intended that all of the rights and privileges of the Parties hereto shall be enforceable to the fullest extent permitted by law. If any court\ndetermines that any of the provisions of this Agreement, or any part thereof, are unenforceable because of the duration or scope of such\nprovision, the duration or scope of such provision, as the case may be, shall be reduced so that such provision becomes enforceable and, in its\nreduced form, such provision shall then be enforceable and shall be enforced.\nSection 5.7 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of\nDelaware applicable to agreements made and to be performed within such state, without giving effect to any choice of law principles.\nSection 5.8 Miscellaneous. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter\nhereof and it replaces and supersedes all prior agreements between the Parties. No provision of this Agreement may be waived or amended\nunless such waiver or amendment is in writing. No failure or delay by the Company in exercising any right, power or privilege under this\nAgreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right,\npower or privilege hereunder. This Agreement may not be assigned by the Recipient, by operation of law or otherwise, without the Company’s\nprior written consent.\nSection 5.9 Execution. This Agreement may be executed in one or more counterparts, and by facsimile signatures, each of which\nshall be an original document, and all of which together shall constitute one and the same instrument.\n{Remainder of Page Intentionally Left Blank}\n5\n \nIN WITNESS WHEREOQF, the Parties have entered into this Agreement as of the date first written above.\nCOMPANY:\nHF Financial Corp.\n/s/ Michael Vekich\nName: Michael Vekich\nTitle:  Chairman\nRECIPIENT:\nJACOBS ASSET MANAGEMENT, LLC\n/s/ Sy Jacobs\nName: Sy Jacobs\nTitle:  Managing Member\n	EX-99.1 2 a12-17284_1ex99d1.htm EX-99.1\nExhibit 99.1\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (this "Agreement") is entered into this 30th day of July, 2012, by and among HF\nFinancial Corp., a Delaware corporation (along with its affiliates, the "Company."), and Jacobs Asset Management, L.L.C. (the "Recipient" or\n"JAM"). The Company and the Recipient are sometimes referred to in this Agreement individually as a "Party." and collectively as the "Parties."\nRECITALS\nA.\nThe Company desires to exchange views and information with JAM, its largest shareholder.\nB.\nThe Company intends to provide JAM access to certain non-public, confidential or proprietary information concerning the\nCompany.\nC.\nIn order to induce the Company to provide access to the Confidential Information (as hereinafter defined), the Recipient\nhereby agrees to be bound by the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of the mutual promises and covenants set forth, and for other good and valuable consideration,\nthe receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:\nARTICLE I\nDEFINITIONS\nSection 1.1\nCertain Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms used in this\nAgreement shall be construed to have the meanings set forth or referenced below:\nThe\nterm "Confidential Information" refers to (i) all business or financial information (including business plans, budgets,\nforecasts\nand\nfinancia projections) of the Company or its subsidiaries (or of others having business relationships with the Company), or concerning the Matter,\nwhether or not marked or otherwise identified as confidential or proprietary, (ii) any other information or materials marked or designated as\n"confidential" or "proprietary" by the Company at the time of its disclosure to the Recipient and (iii) any other information or materials that the\nCompany maintains as confidential or that is proprietary to the Company, the nature of which or the circumstances surrounding the disclosure of\nwhich would indicate to a reasonable person that such information or materials are confidential or proprietary. The foregoing information and\nmaterials shall be "Confidential Information" whether evidenced, transferred or transmitted in writing, orally, visually, electronically or by any\nother means, and whether disclosed before or after the date of this Agreement. "Confidential Information" shall also include all Derivative\nMaterials.\nNotwithstanding anything to the contrary in this Agreement, "Confidential Information" shall not include information that (A) is or\nbecomes generally available to the public other than\nas a result of a breach of this Agreement by the Recipient; or (B) is or becomes available to the Recipient on a non-confidential basis from any\nsource\nother\nthan the Company or its Representatives, which source has represented to the Recipient (and that the Recipient reasonably believes\nafter due inquiry) that such source is entitled to disclose such information without the Recipient being bound by any obligation of confidentiality,\nprovided that upon the Recipient becoming aware that such information is Confidential Information that the source was not entitled to disclose,\nthis Agreement shall thereafter apply to such Confidential Information.\nThe term "Derivative Materials' refers to all summaries, analyses, compilations, data, studies or other documents prepared by the\nRecipient (i) containing, or based in whole or in part on, any Confidential Information provided by the Company or its Representatives, or\n(ii) reflecting the Recipient's review of the Company or the Recipient's interest in the Matter.\nThe term "Person" refers to any natural person, corporation, limited liability company, partnership, trust or other legal entity.\nThe term "Representatives" refers to a Person's directors, officers, employees, attorneys, accountants, consultants, financial advisors\nand other agents and representatives.\nThe term "Recipient" shall include (i) the Recipient, (ii) its affiliates, subsidiaries, and divisions, (iii) any Person that directly or\nindirectly, through intermediaries or otherwise, controls or owns a controlling interest in the Recipient and (iv) the Representatives of any of the\nforegoing Persons.\nARTICLE II\nCONFIDENTIALITY\nSection 2.1\nNon-Disclosure and Non-Use Covenants. As a condition to the Company's disclosure of the Confidential\nInformation to the Recipient, the Recipient hereby covenants and agrees that all Confidential Information will be kept confidential by the\nRecipient and will not, without the prior written consent of the Company, be disclosed by the Recipient, in any manner whatsoever, in whole or\nin\npart, and will not be used by the Recipient, directly or indirectly, for any purpose other than facilitating discussion with the Company.\nMoreover, the Recipient agrees to transmit the Confidential Information to only those Representatives who need to know the Confidential\nInformation for the purpose of facilitating the Recipient's discussion with the Company and who are informed of the confidential nature of the\nConfidential Information and the terms of this Agreement. The Recipient hereby acknowledges that it is aware, and the Recipient agrees that it\nwill advise its Representatives who are informed as to the matters which are the subject of this Agreement, that (i) the Confidential Information\nbeing furnished may contain or may itself be material, non-public information concerning the Company, and (ii) securities laws in the United\nStates prohibit any person who has received material, non-public information concerning the Company or the matters which are the subject of\nthis Agreement from purchasing or selling securities of the Company or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. The Recipient agrees to not\nengage, directly or indirectly, in transactions in Company securities while in possession of Confidential\n2\nInformation, and further agrees that is will be responsible for its compliance with federal and state securities laws. The Recipient will be\nresponsible for any breach of this Agreement by the Recipient or by its Representatives.\nSection 2.2\nConfidentiality of Discussions. The Recipient will not, without the prior written consent of the Company, disclose\nthe status of any discussions between the Parties, except as may be required by law or by the rules of any recognized stock exchange and then, if\ncircumstances permit, only with prompt advance written notice to the Company. Any disclosure made pursuant to the prior sentence shall be\nno\nmore extensive than is necessary to meet the minimum requirement imposed on the Person making such disclosure.\nSection 2.3\nCompelled Disclosure. In the event that the Recipient is requested (by oral questions, interrogatories, requests\nfor\ninformation or documents, subpoena, civil investigate demand or similar process) to disclose any part of the Confidential Information, the\nRecipient shall notify the Company promptly of such request(s), and the documents requested thereby, so that the Company may seek an\nappropriate protective order and/or waive in writing the Recipient's obligation not to disclose the Confidential Information. If, in the absence\nof\na protective order or the receipt of a waiver hereunder, the Recipient is nonetheless compelled to disclose all or part of the Confidential\nInformation or else stand liable for contempt or suffer other censure or penalty from any tribunal or governmental or similar authority, the\nRecipient may disclose such portion of the Confidential Information required to be disclosed without liability hereunder; provided, however, that\nthe Recipient shall deliver to the Company written notice of the Confidential Information to be disclosed as far in advance of its disclosure as\nis\npracticable, and shall use commercially reasonable efforts (at the Company's expense) to obtain an order or other reliable assurance that\nconfidential treatment will be accorded to such portion of the Confidential Information required to be disclosed. Notwithstanding the foregoing,\nthe Recipient may disclose the Confidential Information to any regulatory agency in the normal course of an examination, audit or investigation\ninvolving the Recipient.\nSection 2.4\nDocument Disposition. The Confidential Information (except for Derivative Materials), and all copies thereof, will\nremain the absolute property of the Company and will be returned to the Company or destroyed (and such destruction confirmed in writing by an\nofficer of the Recipient) without retaining any copies thereof immediately upon the Company's request. Derivative Materials will be\nimmediately destroyed at the request of the Company and such destruction will be confirmed to the Company in writing by an officer of the\nRecipient.\nSection 2.5\nDisclaimers. The Recipient acknowledges that neither the Company nor any of its Representatives makes\nany\nrepresentation or warranty as to the accuracy or completeness of the Confidential Information. The Recipient agrees that neither the Company\nnor any of its Representatives shall have any liability to the Recipient as a result of their reliance on the Confidential Information. The Recipient\nhereby agrees that in no event will the Recipient have or assert any claims whatsoever against the Company or any of the Company's\nRepresentatives relating to or in any way connected with the subject matter of this Agreement.\n3\nSection 2.6 Designated Representatives The Recipient shall have no discussion, correspondence or other contact with the\nCompany or any of its employees, customers or suppliers concerning the Matter except with "Designated Representatives" of the Company.\n"Designated Representatives" shall mean the Chairman of the Board of Directors of the Company and persons designated by him.\nSection 2.7\nSurvival. The restrictions imposed on the disclosure of Confidential Information shall continue until the\nlesser\nof\nsuch time as the information disclosed hereunder is no longer Confidential Information and one (1) year from the date first written above,\nprovided, that no such termination shall relieve Recipient from any liability relating to any prior breach of this Agreement.\nARTICLE III\nCOVENANT OF THE COMPANY\nSection 3.1\nInformation and Access. The Company will provide JAM access to certain non-public, confidential or proprietary\ninformation about the Company (the "Confidential Information") and receive and consider JAM's input on the financial services industry, market\nconditions and trends and the Company's operational performance, opportunities and direction.\nARTICLE IV\nTERM AND TERMINATION\nSection 4.1\nTerm. Except as set forth in Article II, this Agreement shall terminate upon the earlier of (i) the Company's 2012\nAnnual Meeting of Shareholders or (ii) the Company's receipt of the notice required under the Company's bylaws from JAM or its affiliates\nrequired to nominate a director for election at a meeting of the Company's shareholders.\nARTICLE V\nMISCELLANEOUS\nSection 5.1\nDisclosure of Agreement. The parties contemplate that JAM will file with the SEC an amendment to its Schedule\n13D with respect to the Company attaching this Agreement and that the Company will file with the SEC a current report on Form 8-K attaching\nthis Agreement.\nSection 5.2\nCompliance with Securities Laws. As of the date hereof and during the Term of the Agreement, JAM is and will\nremain in compliance with all applicable state and federal securities laws with regard to its investment in the Company and its rights and\nresponsibilities under this Agreement, including but not limited to, the Securities Act of 1933, the Securities Exchange Act of 1934, and the\nrules and regulations promulgated thereunder.\nSection 5.3 Compliance with Banking Laws. As of the date hereof and during the Term of the Agreement, JAM is and will\nremain in compliance with all applicable banking laws with regard to its investment in the Company and its rights and responsibilities under this\nAgreement, including but not limited to, the Bank Holding Company Act of 1956, the National Bank Act, the Federal Deposit Insurance Act, the\nBank Merger Act, the Change in Bank Control\n4\nAct and the Federal Reserve Board, Office of Comptroller of the Currency and Federal Deposit Insurance Corporation regulations thereunder.\nSection 5.4\nRemedies. The Recipient agrees that due to the nature of this Agreement and the Confidential Information, money\ndamages would not be a sufficient remedy for any breach of this Agreement by the Recipient and that the Company shall be entitled to seek\nspecific performance, injunctive and/or other equitable relief as a remedy for any such breach. Such remedy shall not be deemed to be the\nexclusive remedy of the Company for any breach by the Recipient of this Agreement, but shall be in addition to all other remedies available\nto\nthe Company at law or in equity. The Recipient hereby waives any requirement for the securing or posting of any bond in connection with such\nremedy.\nSection 5.5\nExpenses. The Parties will pay their own expenses with respect to this Agreement.\nSection 5.6\nSeverability.. In the event that any one or more of the provisions contained in this Agreement, or the application\nthereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any\nsuch provision in every other respect and of the remaining provisions contained in this Agreement shall not be in any way impaired thereby, it\nbeing intended that all of the rights and privileges of the Parties hereto shall be enforceable to the fullest extent permitted by law. If any court\ndetermines that any of the provisions of this Agreement, or any part thereof, are unenforceable because of the duration or scope of such\nprovision, the duration or scope of such provision, as the case may be, shall be reduced so that such provision becomes enforceable and, in its\nreduced form, such provision shall then be enforceable and shall be enforced.\nSection 5.7\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws of the State of\nDelaware applicable to agreements made and to be performed within such state, without giving effect to any choice of law principles.\nSection 5.8\nMiscellaneous. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter\nhereof and it replaces and supersedes all prior agreements between the Parties. No provision of this Agreement may be waived or amended\nunless such waiver or amendment is in writing. No failure or delay by the Company in exercising any right, power or privilege under this\nAgreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right,\npower or privilege hereunder. This Agreement may not be assigned by the Recipient, by operation of law or otherwise, without the Company's\nprior written consent.\nSection 5.9\nExecution. This Agreement may be executed in one or more counterparts, and by facsimile signatures, each of which\nshall be an original document, and all of which together shall constitute one and the same instrument.\n{Remainder of Page Intentionally Left Blank}\n5\nIN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date first written above.\nCOMPANY:\nHF Financial Corp.\n/s/ Michael Vekich\nName: Michael Vekich\nTitle: Chairman\nRECIPIENT:\nJACOBS ASSET MANAGEMENT, LLC\n/s/ Sy Jacobs\nName: Sy Jacobs\nTitle:\nManaging Member\n6	EX-99.1 2 a12-17284_1ex99d1.htm EX-99.1\nExhibit 99.1\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into this 30th day of July, 2012, by and among HF\nFinancial Corp., a Delaware corporation (along with its affiliates, the “Company”), and Jacobs Asset Management, L.L .C . (the “Recipient” or\n“JAM”). The Company and the Recipient are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties.”\nRECITALS\nA.\nThe Company desires to exchange views and information with JAM, its largest shareholder.\nB.\nThe Company intends to provide JAM access to certain non-public, confidential or proprietary information concerning the\nCompany.\nC.\nIn order to induce the Company to provide access to the Confidential Information (as hereinafter defined), the Recipient\nhereby agrees to be bound by the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of the mutual promises and covenants set forth, and for other good and valuable consideration,\nthe receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:\nARTICLE I\nDEFINITIONS\nSection 1.1\nCertain Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms used in this\nAgreement shall be construed to have the meanings set forth or referenced below:\nThe term “Confidential Information” refers to (i) all business or financial information (including business plans, budgets, forecasts and\nfinancial projections) of the Company or its subsidiaries (or of others having business relationships with the Company), or concerning the Matter,\nwhether or not marked or otherwise identified as confidential or proprietary, (ii) any other information or materials marked or designated as\n“confidential” or “proprietary” by the Company at the time of its disclosure to the Recipient and (iii) any other information or materials that the\nCompany maintains as confidential or that is proprietary to the Company, the nature of which or the circumstances surrounding the disclosure of\nwhich would indicate to a reasonable person that such information or materials are confidential or proprietary. The foregoing information and\nmaterials shall be “Confidential Information” whether evidenced, transferred or transmitted in writing, orally, visually, electronically or by any\nother means, and whether disclosed before or after the date of this Agreement. “Confidential Information” shall also include all Derivative\nMaterials.\nNotwithstanding anything to the contrary in this Agreement, “Confidential Information” shall not include information that (A) is or\nbecomes generally available to the public other than\nas a result of a breach of this Agreement by the Recipient; or (B) is or becomes available to the Recipient on a non-confidential basis from any\nsource other than the Company or its Representatives, which source has represented to the Recipient (and that the Recipient reasonably believes\nafter due inquiry) that such source is entitled to disclose such information without the Recipient being bound by any obligation of confidentiality,\nprovided that upon the Recipient becoming aware that such information is Confidential Information that the source was not entitled to disclose,\nthis Agreement shall thereafter apply to such Confidential Information.\nThe term “Derivative Materials” refers to all summaries, analyses, compilations, data, studies or other documents prepared by the\nRecipient (i) containing, or based in whole or in part on, any Confidential Information provided by the Company or its Representatives, or\n(ii) reflecting the Recipient’s review of the Company or the Recipient’s interest in the Matter.\nThe term “Person” refers to any natural person, corporation, limited liability company, partnership, trust or other legal entity.\nThe term “Representatives” refers to a Person’s directors, officers, employees, attorneys, accountants, consultants, financial advisors\nand other agents and representatives.\nThe term “Recipient” shall include (i) the Recipient, (ii) its affiliates, subsidiaries, and divisions, (iii) any Person that directly or\nindirectly, through intermediaries or otherwise, controls or owns a controlling interest in the Recipient and (iv) the Representatives of any of the\nforegoing Persons.\nARTICLE II\nCONFIDENTIALITY\nSection 2.1\nNon-Disclosure and Non-Use Covenants. As a condition to the Company’s disclosure of the Confidential\nInformation to the Recipient, the Recipient hereby covenants and agrees that all Confidential Information will be kept confidential by the\nRecipient and will not, without the prior written consent of the Company, be disclosed by the Recipient, in any manner whatsoever, in whole or\nin part, and will not be used by the Recipient, directly or indirectly, for any purpose other than facilitating discussion with the Company.\nMoreover, the Recipient agrees to transmit the Confidential Information to only those Representatives who need to know the Confidential\nInformation for the purpose of facilitating the Recipient’s discussion with the Company and who are informed of the confidential nature of the\nConfidential Information and the terms of this Agreement. The Recipient hereby acknowledges that it is aware, and the Recipient agrees that it\nwill advise its Representatives who are informed as to the matters which are the subject of this Agreement, that (i) the Confidential Information\nbeing furnished may contain or may itself be material, non-public information concerning the Company, and (ii) securities laws in the United\nStates prohibit any person who has received material, non-public information concerning the Company or the matters which are the subject of\nthis Agreement from purchasing or selling securities of the Company or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. The Recipient agrees to not\nengage, directly or indirectly, in transactions in Company securities while in possession of Confidential\n2\nInformation, and further agrees that is will be responsible for its compliance with federal and state securities laws. The Recipient will be\nresponsible for any breach of this Agreement by the Recipient or by its Representatives.\nSection 2.2\nConfidentiality of Discussions. The Recipient will not, without the prior written consent of the Company, disclose\nthe status of any discussions between the Parties, except as may be required by law or by the rules of any recognized stock exchange and then, if\ncircumstances permit, only with prompt advance written notice to the Company. Any disclosure made pursuant to the prior sentence shall be no\nmore extensive than is necessary to meet the minimum requirement imposed on the Person making such disclosure.\nSection 2.3\nCompelled Disclosure. In the event that the Recipient is requested (by oral questions, interrogatories, requests for\ninformation or documents, subpoena, civil investigate demand or similar process) to disclose any part of the Confidential Information, the\nRecipient shall notify the Company promptly of such request(s), and the documents requested thereby, so that the Company may seek an\nappropriate protective order and/or waive in writing the Recipient’s obligation not to disclose the Confidential Information. If, in the absence of\na protective order or the receipt of a waiver hereunder, the Recipient is nonetheless compelled to disclose all or part of the Confidential\nInformation or else stand liable for contempt or suffer other censure or penalty from any tribunal or governmental or similar authority, the\nRecipient may disclose such portion of the Confidential Information required to be disclosed without liability hereunder; provided, however, that\nthe Recipient shall deliver to the Company written notice of the Confidential Information to be disclosed as far in advance of its disclosure as is\npracticable, and shall use commercially reasonable efforts (at the Company’s expense) to obtain an order or other reliable assurance that\nconfidential treatment will be accorded to such portion of the Confidential Information required to be disclosed. Notwithstanding the foregoing,\nthe Recipient may disclose the Confidential Information to any regulatory agency in the normal course of an examination, audit or investigation\ninvolving the Recipient.\nSection 2.4\nDocument Disposition. The Confidential Information (except for Derivative Materials), and all copies thereof, will\nremain the absolute property of the Company and will be returned to the Company or destroyed (and such destruction confirmed in writing by an\nofficer of the Recipient) without retaining any copies thereof immediately upon the Company’s request. Derivative Materials will be\nimmediately destroyed at the request of the Company and such destruction will be confirmed to the Company in writing by an officer of the\nRecipient.\nSection 2.5\nDisclaimers. The Recipient acknowledges that neither the Company nor any of its Representatives makes any\nrepresentation or warranty as to the accuracy or completeness of the Confidential Information. The Recipient agrees that neither the Company\nnor any of its Representatives shall have any liability to the Recipient as a result of their reliance on the Confidential Information. The Recipient\nhereby agrees that in no event will the Recipient have or assert any claims whatsoever against the Company or any of the Company’s\nRepresentatives relating to or in any way connected with the subject matter of this Agreement.\n3\nSection 2.6\nDesignated Representatives. The Recipient shall have no discussion, correspondence or other contact with the\nCompany or any of its employees, customers or suppliers concerning the Matter except with “Designated Representatives” of the Company.\n“Designated Representatives” shall mean the Chairman of the Board of Directors of the Company and persons designated by him.\nSection 2.7\nSurvival. The restrictions imposed on the disclosure of Confidential Information shall continue until the lesser of\nsuch time as the information disclosed hereunder is no longer Confidential Information and one (1) year from the date first written above,\nprovided, that no such termination shall relieve Recipient from any liability relating to any prior breach of this Agreement.\nARTICLE III\nCOVENANT OF THE COMPANY\nSection 3.1\nInformation and Access. The Company will provide JAM access to certain non-public, confidential or proprietary\ninformation about the Company (the “Confidential Information”) and receive and consider JAM’s input on the financial services industry, market\nconditions and trends and the Company’s operational performance, opportunities and direction.\nARTICLE IV\nTERM AND TERMINATION\nSection 4.1\nTerm. Except as set forth in Article II, this Agreement shall terminate upon the earlier of (i) the Company’s 2012\nAnnual Meeting of Shareholders or (ii) the Company’s receipt of the notice required under the Company’s bylaws from JAM or its affiliates\nrequired to nominate a director for election at a meeting of the Company’s shareholders.\nARTICLE V\nMISCELLANEOUS\nSection 5.1\nDisclosure of Agreement. The parties contemplate that JAM will file with the SEC an amendment to its Schedule\n13D with respect to the Company attaching this Agreement and that the Company will file with the SEC a current report on Form 8-K attaching\nthis Agreement.\nSection 5.2\nCompliance with Securities Laws. As of the date hereof and during the Term of the Agreement, JAM is and will\nremain in compliance with all applicable state and federal securities laws with regard to its investment in the Company and its rights and\nresponsibilities under this Agreement, including but not limited to, the Securities Act of 1933, the Securities Exchange Act of 1934, and the\nrules and regulations promulgated thereunder.\nSection 5.3\nCompliance with Banking Laws. As of the date hereof and during the Term of the Agreement, JAM is and will\nremain in compliance with all applicable banking laws with regard to its investment in the Company and its rights and responsibilities under this\nAgreement, including but not limited to, the Bank Holding Company Act of 1956, the National Bank Act, the Federal Deposit Insurance Act, the\nBank Merger Act, the Change in Bank Control\n4\nAct and the Federal Reserve Board, Office of Comptroller of the Currency and Federal Deposit Insurance Corporation regulations thereunder.\nSection 5.4\nRemedies. The Recipient agrees that due to the nature of this Agreement and the Confidential Information, money\ndamages would not be a sufficient remedy for any breach of this Agreement by the Recipient and that the Company shall be entitled to seek\nspecific performance, injunctive and/or other equitable relief as a remedy for any such breach. Such remedy shall not be deemed to be the\nexclusive remedy of the Company for any breach by the Recipient of this Agreement, but shall be in addition to all other remedies available to\nthe Company at law or in equity. The Recipient hereby waives any requirement for the securing or posting of any bond in connection with such\nremedy.\nSection 5.5\nExpenses. The Parties will pay their own expenses with respect to this Agreement.\nSection 5.6\nSeverability. In the event that any one or more of the provisions contained in this Agreement, or the application\nthereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any\nsuch provision in every other respect and of the remaining provisions contained in this Agreement shall not be in any way impaired thereby, it\nbeing intended that all of the rights and privileges of the Parties hereto shall be enforceable to the fullest extent permitted by law. If any court\ndetermines that any of the provisions of this Agreement, or any part thereof, are unenforceable because of the duration or scope of such\nprovision, the duration or scope of such provision, as the case may be, shall be reduced so that such provision becomes enforceable and, in its\nreduced form, such provision shall then be enforceable and shall be enforced.\nSection 5.7\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws of the State of\nDelaware applicable to agreements made and to be performed within such state, without giving effect to any choice of law principles.\nSection 5.8\nMiscellaneous. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter\nhereof and it replaces and supersedes all prior agreements between the Parties. No provision of this Agreement may be waived or amended\nunless such waiver or amendment is in writing. No failure or delay by the Company in exercising any right, power or privilege under this\nAgreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right,\npower or privilege hereunder. This Agreement may not be assigned by the Recipient, by operation of law or otherwise, without the Company’s\nprior written consent.\nSection 5.9\nExecution. This Agreement may be executed in one or more counterparts, and by facsimile signatures, each of which\nshall be an original document, and all of which together shall constitute one and the same instrument.\n{Remainder of Page Intentionally Left Blank}\n5\nIN WITNESS WHEREOF, the Parties have entered into this Agreement as of the date first written above.\nCOMPANY:\nHF Financial Corp.\n/s/ Michael Vekich\nName: Michael Vekich\nTitle: Chairman\nRECIPIENT:\nJACOBS ASSET MANAGEMENT, LLC\n/s/ Sy Jacobs\nName: Sy Jacobs\nTitle: Managing Member\n6
+503bf3d3c382b93016b28a53eba95a17.pdf	effective_date jurisdiction party term	EX-99.(D)(4) 9 ex99-d4.txt MUTUAL NON-DISCLOSURE AGREEMENT 1 Exhibit (d)(4) PIERCING PAGODA,\nINC. 3910 Adler Place Post Office Box 25007 Lehigh Valley, Pa 18002 MUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement, made as of March 28, 2000 (the Effective Date), by and between Piercing Pagoda, Inc., a Delaware\ncorporation (including its affiliates and their respective successors, transferees and permitted assigns, "PPI"), and the\nundersigned (including its affiliates and their respective successors, transferees and permitted assigns, "Company") in\nconnection with, our consideration of a possible business transaction (the "Stated Purpose") each party may disclose\ncertain of its proprietary and confidential information to the other party in order to facilitate discussion and analyses. As\na condition to the furnishing by one party (in such capacity, the "Disclosing Party") of such information as the Disclosing\nParty, in its sole and absolute discretion, may determine to furnish to the other party (in such capacity, the "Recipient"),\nthe parties hereto agree to comply with the terms and conditions set forth below. NOW, THEREFORE, in consideration\nof and reliance on the respective representations, warranties and covenants contained herein and intending to be legally\nbound hereby, the parties hereto agree as follows: 1. The Recipient shall take responsible steps to ensure that all\nConfidential Information of the Disclosing Party is kept confidential; provided, however, that such information may be\ndisclosed to those employees or agents of the Recipient who have a need to know such information, or to such other\nparty as may be agreed to by the Disclosing Party in writing, only if each such employee or party is informed by the\nRecipient of the confidential and proprietary nature of such information and of the confidentiality undertakings of the\nRecipient contained herein. The Recipient shall be responsible for any breach of this Agreement by its employees or\nagents. 2. As used herein, "reasonable steps" means the steps that the Recipient takes to protect its own, similar\nconfidential and proprietary information, which shall not be less than a reasonable standard of care. 3. As used herein\n"Confidential Information" means all proprietary or confidential information of the Disclosing Party, including but not\nlimited to Confidential Information regarding its products, suppliers, customers, technology, pricing, business plan,\nactivities or know-how, whether disclosed directly or indirectly, in writing (marked as Confidential Information), orally\nor by drawings or inspection of documents. 2 4. However, Confidential Information does not include any of the\nforegoing items: (i) prior to disclosure, is know to the public or becomes so known through no action of Recipient; (ii) is\nrequired to be disclosed pursuant to applicable laws, rules or regulations or governmental requirement or court order\n(provided, however, that the Recipient shall promptly advise the Disclosing Party of its notice of any such requirement or\norder); (iii) is already rightfully in the Recipient's possession at the time of disclosure, as evidenced by written records of\nthe Recipient; or (iv) is received by the Recipient from another person or entity who is not obligated to the Disclosing\nparty to keep the same confidential. 5. Neither party shall, without the other party's prior written consent (a) disclose to\nany person or entity (other than the persons employed by either party who are actively and directly participating in the\nStated Purpose) any information about the parties' discussions regarding the Stated Purpose or the terms, conditions or\nother facts relating thereto including the fact that discussions are taking place with respect thereto or the status thereof, or\nthe fact that the Confidential Information has been made available to either party, except to the extent that such\ndisclosure is required by applicable laws, rules or regulations or government requirement or court order (provided,\nhowever, that the Recipient shall promptly advise the Disclosing Party of its notice of any such requirement or order); or\n(b) use the Confidential Information for any purpose other than the Stated Purpose, without limiting the foregoing, the\nRecipient shall not trade in the securities of the Disclosing Party while in the possession of Confidential Information\nrelating to the Disclosing Party. 6. At the request of the Disclosing Party, the Recipient shall promptly return to the\nDisclosing Party all Confidential Information of the Disclosing Party in whatever medium, including any and all copies\nthereof. Such return (or, if authorized, destruction of Confidential Information) shall be confirmed in writing by the\nRecipient to the Disclosing Party. 7. Each party agrees that it would be impossible or inadequate to measure and\ncalculate the other party's damages from any breach of the covenants set forth in this Agreement. Accordingly, the\nparties agree that if either party breaches or threatens to breach any of such covenants, the non-breaching party will have\navailable, in addition to any other right or remedy available, the right to obtain an injunction from a court of competent\njurisdiction restraining such breach or threatened breach and to specific performance of any such provision of this\nAgreement. The parties further agree that no bond or other security shall be required in obtaining such equitable relief\nand each party hereby consents to the issuance of such injunction and to the ordering of specific performance. 2 3 8.\nEach party understands and acknowledges that the Disclosing Party is not making any representation or warranty as to\nthe accuracy or completeness of any Confidential Information furnished by or on behalf of the Disclosing Party (except\nto the extent and only to such effect as shall be expressly set forth in an executed and delivered definitive agreement\nbetween the parties to effect the Stated Purpose (the "Definitive Agreement")). Neither the Disclosing Party, its affiliates\nnor any of their respective officers, directors, employees or agents shall have any liability to the Recipient or any of its\nRepresentatives relating to or arising from the use of the Confidential Agreement. 9. Except as set forth in this\nAgreement, neither PPI nor Company shall have any liability or obligation of any nature whatsoever to the other party,\nnor any obligation to enter into a Definitive Agreement, negotiate to enter into a Definitive Agreement, or refrain from\nnegotiating similar agreements with other parties. 10. It is further understood and agreed that this Agreement may not be\namended except by an instrument signed by the party against whom enforcement is sought. This Agreement shall be\ngoverned by an interpreted in accordance with the laws of the Commonwealth of Pennsylvania, without giving effect to\nany conflict of law provisions. This Agreement shall become binding when any one or more counterparts hereof,\nindividually or taken together, shall bear the signatures of PPI and Company. This Agreement may be executed in two or\nmore counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon,\nbut all of which together shall constitute but one and the same instrument. 11. IN WITNESS WHEREOF, the\nundersigned have caused this Agreement to be duly executed effected as of the date first above written. PIERCING\nPAGODA, INC. ZALE CORPORATION By: /s/ John Eureyecko By: /s/ Alan P. Shor ----------------------------- ------------\n-- -- - -- - -- - -- - -- - -- - -- Name: John Eureyecko Name: Alan P. Shor Title: President and COO Title: Executive Vice President\nand Chief Operating Officer 3	EX-99.(D)(4) 9 ex99-d4.txt MUTUAL NON-DISCLOSURE AGREEMENT 1 Exhibit (d)(4) PIERCING PAGODA,\nINC. 3910 Adler Place Post Office Box 25007 Lehigh Valley, Pa 18002 MUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement, made as of March 28, 2000 (the Effective Date), by and between Piercing Pagoda, Inc., a Delaware\ncorporation (including its affiliates and their respective successors, transferees and permitted assigns, "PPI"), and the\nundersigned (including its affiliates and their respective successors, transferees and permitted assigns, "Company") in\nconnection with, our consideration of a possible business transaction (the "Stated Purpose") each party may disclose\ncertain of its proprietary and confidential information to the other party in order to facilitate discussion and analyses. As\na condition to the furnishing by one party (in such capacity, the "Disclosing Party") of such information as the Disclosing\nParty, in its sole and absolute discretion, may determine to furnish to the other party (in such capacity, the "Recipient"),\nthe parties hereto agree to comply with the terms and conditions set forth below. NOW, THEREFORE, in consideration\nof and reliance on the respective representations, warranties and covenants contained herein and intending to be legally\nbound hereby, the parties hereto agree as follows: 1. The Recipient shall take responsible steps to ensure that all\nConfidential Information of the Disclosing Party is kept confidential; provided, however, that such information may be\ndisclosed to those employees or agents of the Recipient who have a need to know such information, or to such other\nparty as may be agreed to by the Disclosing Party in writing, only if each such employee or party is informed by the\nRecipient of the confidential and proprietary nature of such information and of the confidentiality undertakings of the\nRecipient contained herein. The Recipient shall be responsible for any breach of this Agreement by its employees or\nagents. 2. As used herein, "reasonable steps" means the steps that the Recipient takes to protect its own, similar\nconfidential and proprietary information, which shall not be less than a reasonable standard of care. 3. As used herein\n"Confidential Information" means all proprietary or confidential information of the Disclosing Party, including but not\nlimited to Confidential Information regarding its products, suppliers, customers, technology, pricing, business plan,\nactivities or know-how, whether disclosed directly or indirectly, in writing (marked as Confidential Information), orally\nor by drawings or inspection of documents. 2 4. However, Confidential Information does not include any of the\nforegoing items: (i) prior to disclosure, is know to the public or becomes so known through no action of Recipient; (ii) is\nrequired to be disclosed pursuant to applicable laws, rules or regulations or governmental requirement or court order\n(provided, however, that the Recipient shall promptly advise the Disclosing Party of its notice of any such requirement or\norder); (iii) is already rightfully in the Recipient's possession at the time of disclosure, as evidenced by written records of\nthe Recipient; or (iv) is received by the Recipient from another person or entity who is not obligated to the Disclosing\nparty to keep the same confidential. 5. Neither party shall, without the other party's prior written consent (a) disclose to\nany person or entity (other than the persons employed by either party who are actively and directly participating in the\nStated Purpose) any information about the parties' discussions regarding the Stated Purpose or the terms, conditions or\nother facts relating thereto including the fact that discussions are taking place with respect thereto or the status thereof, or\nthe fact that the Confidential Information has been made available to either party, except to the extent that such\ndisclosure is required by applicable laws, rules or regulations or government requirement or court order (provided,\nhowever, that the Recipient shall promptly advise the Disclosing Party of its notice of any such requirement or order); or\n(b) use the Confidential Information for any purpose other than the Stated Purpose, without limiting the foregoing, the\nRecipient shall not trade in the securities of the Disclosing Party while in the possession of Confidential Information\nrelating to the Disclosing Party. 6. At the request of the Disclosing Party, the Recipient shall promptly return to the\nDisclosing Party all Confidential Information of the Disclosing Party in whatever medium, including any and all copies\nthereof. Such return (or, if authorized, destruction of Confidential Information) shall be confirmed in writing by the\nRecipient to the Disclosing Party. 7. Each party agrees that it would be impossible or inadequate to measure and\ncalculate the other party's damages from any breach of the covenants set forth in this Agreement. Accordingly, the\nparties agree that if either party breaches or threatens to breach any of such covenants, the non-breaching party will have\navailable, in addition to any other right or remedy available, the right to obtain an injunction from a court of competent\njurisdiction restraining such breach or threatened breach and to specific performance of any such provision of this\nAgreement. The parties further agree that no bond or other security shall be required in obtaining such equitable relief\nand each party hereby consents to the issuance of such injunction and to the ordering of specific performance. 2 3 8.\nEach party understands and acknowledges that the Disclosing Party is not making any representation or warranty as to\nthe accuracy or completeness of any Confidential Information furnished by or on behalf of the Disclosing Party (except\nto the extent and only to such effect as shall be expressly set forth in an executed and delivered definitive agreement\nbetween the parties to effect the Stated Purpose (the "Definitive Agreement")). Neither the Disclosing Party, its affiliates\nnor any of their respective officers, directors, employees or agents shall have any liability to the Recipient or any of its\nRepresentatives relating to or arising from the use of the Confidential Agreement. 9. Except as set forth in this\nAgreement, neither PPI nor Company shall have any liability or obligation of any nature whatsoever to the other party,\nnor any obligation to enter into a Definitive Agreement, negotiate to enter into a Definitive Agreement, or refrain from\nnegotiating similar agreements with other parties. 10. It is further understood and agreed that this Agreement may not be\namended except by an instrument signed by the party against whom enforcement is sought. This Agreement shall be\ngoverned by an interpreted in accordance with the laws of the Commonwealth of Pennsylvania, without giving effect to\nany conflict of law provisions. This Agreement shall become binding when any one or more counterparts hereof,\nindividually or taken together, shall bear the signatures of PPI and Company. This Agreement may be executed in two or\nmore counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon,\nbut all of which together shall constitute but one and the same instrument. 11. IN WITNESS WHEREOF, the\nundersigned have caused this Agreement to be duly executed effected as of the date first above written. PIERCING\nPAGODA, INC. ZALE CORPORATION By: /s/ John Eureyecko By: /s/ Alan P. Shor ---------=--m-mmmmmmm oo o\n---------------------- Name: John Eureyecko Name: Alan P. Shor Title: President and COO Title: Executive Vice President\nand Chief Operating Officer 3	EX-99.(D)(4) 9 ex99-d4.tx MUTUAL NON-DISCLOSURE AGREEMENT 1 Exhibit (d)(4) PIERCING PAGODA\nINC. 3910 Adler Place Post Office Box 25007 Lehigh Valley, Pa 18002 MUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement, made as of March 28, 2000 (the Effective Date), by and between Piercing Pagoda, Inc., a Delaware\ncorporation (including its affiliates and their respective successors, transferees and permitted assigns, "PPI"), and the\nundersigned (including its affiliates and their respective successors, transferees and permitted assigns, "Company") in\nconnection with, our consideration of a possible business transaction (the "Stated Purpose") each party may disclose\ncertain of its proprietary and confidential information to the other party in order to facilitate discussion and analyses. As\na condition to the furnishing by one party (in such capacity, the "Disclosing Party") of such information as the Disclosing\nParty, in its sole and absolute discretion, may determine to furnish to the other party (in such capacity, the "Recipient"),\nthe parties hereto agree to comply with the terms and conditions set forth below. NOW, THEREFORE, in consideration\nof and reliance on the respective representations, warranties and covenants contained herein and intending to be legally\nbound hereby, the parties hereto agree as follows: 1. The Recipient shall take responsible steps to ensure that all\nConfidential\nInformation\nof\nthe\nDisclosing\nParty\nis\nkept\nconfidential;\nprovided,\nhowever,\nthat\nsuch\ninformation\nmay\nbe\ndisclosed to those employees or agents of the Recipient who have a need to know such information, or to such other\nparty as may be agreed to by the Disclosing Party in writing, only if each such employee or party is informed by the\nRecipient of the confidential and proprietary nature of such information and of the confidentiality undertakings of\nthe\nRecipient contained herein. The Recipient shall be responsible for any breach of this Agreement by its employees or\nagents. 2. As used herein, "reasonable steps" means the steps that the Recipient takes to protect its own, similar\nconfidential and proprietary information, which shall not be less than a reasonable standard of care. 3. As used herein\n"Confidential Information" means all proprietary or confidential information of the Disclosing Party, including but not\nlimited to Confidential Information regarding its products, suppliers, customers, technology, pricing, business plan\nactivities or know-how, whether disclosed directly or indirectly, in writing (marked as Confidential Information), orally\nor by drawings or inspection of documents. 2 4. However, Confidential Information does not include any of the\nforegoing items: (i) prior to disclosure, is know to the public or becomes so known through no action of Recipient; (ii)\nis\nrequired to be disclosed pursuant to applicable laws, rules or regulations or governmental requirement or court order\n(provided, however, that the Recipient shall promptly advise the Disclosing Party of its notice of any such requirement or\norder); (iii) is already rightfully in the Recipient's possession at the time of disclosure, as evidenced by written records of\nthe Recipient; or (iv) is received by the Recipient from another person or entity who is not obligated to the Disclosing\nparty to keep the same confidential. 5. Neither party shall, without the other party's prior written consent (a) disclose\nto\nany person or entity (other than the persons employed by either party who are actively and directly participating in the\nStated\nPurpose)\nany\ninformation\nabout\nthe\nparties'\ndiscussions\nregarding\nthe\nStated\nPurpose\nor\nthe\nterms,\nconditions\nor\nother facts relating thereto including the fact that discussions are taking place with respect thereto or the status thereof,\nor\nthe fact that the Confidential Information has been made available to either party, except to the extent that such\ndisclosure is required by applicable laws, rules or regulations or government requirement or court order (provided,\nhowever, that the Recipient shall promptly advise the Disclosing Party of its notice of any such requirement or order); or\n(b)\nuse\nthe\nConfidential\nInformation\nfor\nany\npurpose\nother\nthan\nthe\nStated\nPurpose,\nwithout\nlimiting\nthe\nforegoing,\nthe\nRecipient shall not trade in the securities of the Disclosing Party while in the possession of Confidential Information\nrelating to the Disclosing Party. 6. At the request of the Disclosing Party, the Recipient shall promptly return to the\nDisclosing Party all Confidential Information of the Disclosing Party in whatever medium, including any and all copies\nthereof. Such return (or, if authorized, destruction of Confidential Information) shall be confirmed in writing by the\nRecipient to the Disclosing Party. 7. Each party agrees that it would be impossible or inadequate to measure and\ncalculate the other party's damages from any breach of the covenants set forth in this Agreement. Accordingly, the\nparties agree that if either party breaches or threatens to breach any of such covenants, the non-breaching party will have\navailable, in addition to any other right or remedy available, the right to obtain an injunction from a court of competent\njurisdiction restraining such breach or threatened breach and to specific performance of any such provision of this\nAgreement The parties further agree that no bond or other security shall be required in obtaining such equitable relief\nand each party hereby consents to the issuance of such injunction and to the ordering of specific performance. 2 3 8.\nEach party understands and acknowledges that the Disclosing Party is not making any representation or warranty as\nto\nthe\naccuracy\nor completeness of any Confidential Information furnished by or on behalf of the Disclosing Party (except\nto the extent and only to such effect as shall be expressly set forth in an executed and delivered definitive agreement\nbetween the parties to effect the Stated Purpose (the "Definitive Agreement")). Neither the Disclosing Party, its affiliates\nnor any of their respective officers, directors, employees or agents shall have any liability to the Recipient or any of its\nRepresentatives relating to or arising from the use of the Confidential Agreement. 9. Except as set forth in this\nAgreement, neither PPI nor Company shall have any liability or obligation of any nature whatsoever to the other\nparty,\nnor any obligation to enter into a Definitive Agreement, negotiate to enter into a Definitive Agreement, or refrain from\nnegotiating similar agreements with other parties. 10. It is further understood and agreed that this Agreement may not\nbe\namended except by an instrument signed by the party against whom enforcement is sought. This Agreement shall be\ngoverned by an interpreted in accordance with the laws of the Commonwealth of Pennsylvania, without giving effect to\nany conflict of law provisions. This Agreement shall become binding when any one or more counterparts hereof,\nindividually or taken together, shall bear the signatures of PPI and Company. This Agreement may be executed in two or\nmore counterparts, each of which shall be deemed to be an original as against any party whose signature appears\nthereon,\nbut all of which together shall constitute but one and the same instrument. 11. IN WITNESS WHEREOF, the\nundersigned have caused this Agreement to be duly executed effected as of the date first above written. PIERCING\nPAGODA, INC. ZALE CORPORATION By: /s/ John Eureyecko By: /s/ Alan P. Shor\nName: John Eureyecko Name: Alan P. Shor Title: President and COO Title: Executive Vice President\nand Chief Operating Officer 3	EX-99.(D)(4) 9 ex99-d4.txt MUTUAL NON-DISCLOSURE AGREEMENT 1 Exhibit (d)(4) PIERCING PAGODA,\nINC. 3910 Adler Place Post Office Box 25007 Lehigh Valley, Pa 18002 MUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement, made as of March 28, 2000 (the Effective Date), by and between Piercing Pagoda, Inc., a Delaware\ncorporation (including its affiliates and their respective successors, transferees and permitted assigns, "PPI"), and the\nundersigned (including its affiliates and their respective successors, transferees and permitted assigns, "Company") in\nconnection with, our consideration of a possible business transaction (the "Stated Purpose") each party may disclose\ncertain of its proprietary and confidential information to the other party in order to facilitate discussion and analyses. As\na condition to the furnishing by one party (in such capacity, the "Disclosing Party") of such information as the Disclosing\nParty, in its sole and absolute discretion, may determine to furnish to the other party (in such capacity, the "Recipient"),\nthe parties hereto agree to comply with the terms and conditions set forth below. NOW, THEREFORE, in consideration\nof and reliance on the respective representations, warranties and covenants contained herein and intending to be legally\nbound hereby, the parties hereto agree as follows: 1. The Recipient shall take responsible steps to ensure that all\nConfidential Information of the Disclosing Party is kept confidential; provided, however, that such information may be\ndisclosed to those employees or agents of the Recipient who have a need to know such information, or to such other\nparty as may be agreed to by the Disclosing Party in writing, only if each such employee or party is informed by the\nRecipient of the confidential and proprietary nature of such information and of the confidentiality undertakings of the\nRecipient contained herein. The Recipient shall be responsible for any breach of this Agreement by its employees or\nagents. 2. As used herein, "reasonable steps" means the steps that the Recipient takes to protect its own, similar\nconfidential and proprietary information, which shall not be less than a reasonable standard of care. 3. As used herein\n"Confidential Information" means all proprietary or confidential information of the Disclosing Party, including but not\nlimited to Confidential Information regarding its products, suppliers, customers, technology, pricing, business plan,\nactivities or know-how, whether disclosed directly or indirectly, in writing (marked as Confidential Information), orally\nor by drawings or inspection of documents. 2 4. However, Confidential Information does not include any of the\nforegoing items: (i) prior to disclosure, is know to the public or becomes so known through no action of Recipient; (ii) is\nrequired to be disclosed pursuant to applicable laws, rules or regulations or governmental requirement or court order\n(provided, however, that the Recipient shall promptly advise the Disclosing Party of its notice of any such requirement or\norder); (iii) is already rightfully in the Recipient's possession at the time of disclosure, as evidenced by written records of\nthe Recipient; or (iv) is received by the Recipient from another person or entity who is not obligated to the Disclosing\nparty to keep the same confidential. 5. Neither party shall, without the other party's prior written consent (a) disclose to\nany person or entity (other than the persons employed by either party who are actively and directly participating in the\nStated Purpose) any information about the parties' discussions regarding the Stated Purpose or the terms, conditions or\nother facts relating thereto including the fact that discussions are taking place with respect thereto or the status thereof, or\nthe fact that the Confidential Information has been made available to either party, except to the extent that such\ndisclosure is required by applicable laws, rules or regulations or government requirement or court order (provided,\nhowever, that the Recipient shall promptly advise the Disclosing Party of its notice of any such requirement or order); or\n(b) use the Confidential Information for any purpose other than the Stated Purpose, without limiting the foregoing, the\nRecipient shall not trade in the securities of the Disclosing Party while in the possession of Confidential Information\nrelating to the Disclosing Party. 6. At the request of the Disclosing Party, the Recipient shall promptly return to the\nDisclosing Party all Confidential Information of the Disclosing Party in whatever medium, including any and all copies\nthereof. Such return (or, if authorized, destruction of Confidential Information) shall be confirmed in writing by the\nRecipient to the Disclosing Party. 7. Each party agrees that it would be impossible or inadequate to measure and\ncalculate the other party's damages from any breach of the covenants set forth in this Agreement. Accordingly, the\nparties agree that if either party breaches or threatens to breach any of such covenants, the non-breaching party will have\navailable, in addition to any other right or remedy available, the right to obtain an injunction from a court of competent\njurisdiction restraining such breach or threatened breach and to specific performance of any such provision of this\nAgreement. The parties further agree that no bond or other security shall be required in obtaining such equitable relief\nand each party hereby consents to the issuance of such injunction and to the ordering of specific performance. 2 3 8.\nEach party understands and acknowledges that the Disclosing Party is not making any representation or warranty as to\nthe accuracy or completeness of any Confidential Information furnished by or on behalf of the Disclosing Party (except\nto the extent and only to such effect as shall be expressly set forth in an executed and delivered definitive agreement\nbetween the parties to effect the Stated Purpose (the "Definitive Agreement")). Neither the Disclosing Party, its affiliates\nnor any of their respective officers, directors, employees or agents shall have any liability to the Recipient or any of its\nRepresentatives relating to or arising from the use of the Confidential Agreement. 9. Except as set forth in this\nAgreement, neither PPI nor Company shall have any liability or obligation of any nature whatsoever to the other party,\nnor any obligation to enter into a Definitive Agreement, negotiate to enter into a Definitive Agreement, or refrain from\nnegotiating similar agreements with other parties. 10. It is further understood and agreed that this Agreement may not be\namended except by an instrument signed by the party against whom enforcement is sought. This Agreement shall be\ngoverned by an interpreted in accordance with the laws of the Commonwealth of Pennsylvania, without giving effect to\nany conflict of law provisions. This Agreement shall become binding when any one or more counterparts hereof,\nindividually or taken together, shall bear the signatures of PPI and Company. This Agreement may be executed in two or\nmore counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon,\nbut all of which together shall constitute but one and the same instrument. 11. IN WITNESS WHEREOF, the\nundersigned have caused this Agreement to be duly executed effected as of the date first above written. PIERCING\nPAGODA, INC. ZALE CORPORATION By: /s/ John Eureyecko By: /s/ Alan P. Shor ----------------------------- ------------\n-- -- - -- - -- - -- - -- - -- - -- Name: John Eureyecko Name: Alan P. Shor Title: President and COO Title: Executive Vice President\nand Chief Operating Officer 3
+5180f107324abcab9d9ff81aee2db8d3.pdf	effective_date jurisdiction party term	EX-99.(E).(3) 5 d443014dex99e3.htm CONFIDENTIALITY AGREEMENT BETWEEN SUN PHARMACEUTICAL\nINDUSTRIES, INC.\nExhibit (e)(3)\nMay 11, 2012\nCONFIDENTIAL AND PROPRIETARY\nJames Hattersley\nVice President, Corp. Business Development\nSun Pharmaceutical Industries, Inc.\n270 Prospect Plains Road\nCranbury, New Jersey 08512\nRe: Confidentiality Agreement\nDear Mr. Hattersley:\nIn connection with your evaluation of a potential transaction (the “Potential Transaction”) with DUSA Pharmaceuticals, Inc. (the “Company”),\nwe are prepared to make available to you and/or your Representatives (as defined below) certain confidential information relating to the Company\nand/or the Potential Transaction. As a condition to such information being furnished to you and your Representatives, you hereby agree to treat any\nInformation (as defined below), whether prepared by the Company, its Representatives or otherwise, which is furnished to you or your\nRepresentatives now or in the future by or on behalf of the Company pursuant hereto in accordance with the terms and provisions of this agreement\n(this “Agreement”) and to take or abstain from taking certain other actions as hereinafter set forth. As used herein, a party’s “Representatives” shall\nmean such party’s directors, officers, employees, agents, affiliates and advisors (including, without limitation, such party’s attorneys, accountants,\nconsultants and financial advisors).\nThe term “Information” shall be deemed to mean (subject to the following sentence) any confidential or otherwise proprietary information\nrelating to the Company that the Company or any of its Representatives disclose to you, on or after the date of this Agreement, regardless of the\nmanner in which it is furnished, together with all portions of notes, analyses, compilations, studies, interpretations or other documents prepared by\nyou or your Representatives which contain, in whole or in part, the Information furnished to you or your Representatives pursuant to this Agreement.\nThe term “Information” shall not include, and the obligations of this Agreement shall not apply to, information which (i) is or becomes generally\navailable to the public other than as a result of an unauthorized disclosure by you or your Representatives in breach of this Agreement, (ii) was\nwithin your or any of your Representative’s possession prior to its being furnished to you by or on behalf of the Company pursuant to this\nAgreement, provided that the source of such information was not known by you to be bound by an agreement with or other contractual, legal or\nfiduciary obligation of confidentiality to the Company or any other party with respect to such information, (iii) becomes available to you or any of\nyour Representatives from a source other than the Company or any of its Representatives, provided that such source is not known by you to be\nbound by an agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to\nsuch information, or (iv) was or is developed by you or your Representatives independently of such information.\nExcept as otherwise provided herein, you hereby agree that you and your Representatives shall use the Information solely for the purpose of\nevaluating the Potential Transaction, that the Information will be kept strictly confidential by you and your Representatives, and that you and your\nRepresentatives will not disclose any of the Information in any manner whatsoever; provided, however, that (i) you may make any disclosure of the\nInformation to which the Company gives its prior written consent, (ii) any of the Information may be disclosed to your Representatives who need to\nknow the Information for the sole purpose of evaluating the Potential Transaction, who agree to nondisclosure and non-use terms with respect to the\nInformation that are no less strict than the terms of this Agreement and (iii) any Information may be disclosed if required by operation of law, rule or\nregulation or by any court or other governmental or regulatory authority; provided that you provide prompt written notice to the Company so that the\nCompany may seek a protective order or other appropriate remedy. If, in the absence of a protective order or other appropriate remedy or the receipt\nof a waiver by the Company, you or any of your\n1\nRepresentatives are nonetheless, upon advice of counsel, legally compelled to disclose Information or else stand liable for contempt or suffer other\ncensure or penalty, you or your Representative, as applicable, may, without liability hereunder, disclose only that portion of the Information which\nsuch counsel advises is legally required to be disclosed, provided that you and your Representative exercise your respective reasonable efforts to\npreserve the confidentiality of the Information, including, without limitation, by cooperating with the Company, at the Company’s expense, to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded the Information. In any event, you shall be\nresponsible for any breach of this Agreement by any of your Representatives.\nYou represent that neither you nor any of your Representatives has entered into, directly or indirectly, any agreement or understanding with\nany person (other than any agreement between you and your Representatives) with respect to a Potential Transaction or that could otherwise affect\nsuch person’s decisions or actions with respect to a Potential Transaction involving the Company. In addition, you agree that, without the prior\nwritten consent of the Company, you and your Representatives will not disclose to any other person the fact that the Information has been made\navailable to you or that discussions or negotiations are taking place between the Company and you concerning the Potential Transaction or any of the\nterms, conditions or other facts with respect thereto (including the status thereof), unless in the opinion of your counsel such disclosure is required by\nlaw, rule or regulation or by any court or other governmental or regulatory authority; provided that you provide prompt written notice to the\nCompany so that the Company may seek a protective order or other appropriate remedy.\nNothing contained in this Agreement shall require either party hereto to enter into the Potential Transaction or any other transaction or to\nnegotiate for the same for any specified period of time. All Information disclosed to you shall be and remain the property of the Company and this\nAgreement shall not be construed as a license or any other grant of any right whatsoever in the Information. For clarity, no license under any patent,\ncopyright, trademark, other intellectual property right or any application therefore is hereby granted or implied by the provision of the Information to\nyou or your Representatives. Neither you nor your Representatives shall alter or obliterate any trademark or any other proprietary mark or notice\nthereof of the Company on any copy of the Information, and you shall reproduce any such mark or notice on all copies of the Information.\nYou agree that upon the request of the Company, you will return to the Company or destroy all Information furnished to you or your\nRepresentatives by or on behalf of the Company, without retaining any copies or extracts thereof, and you will destroy all portions of reports,\nanalyses, memoranda, notes or other documents prepared by you or your Representatives that contain the Information. You will confirm to us in\nwriting that destruction of all such Information has been completed. Notwithstanding the foregoing, the Company acknowledges that, in the ordinary\ncourse of your business and as a part of your customary practices, after the destruction or return of other copies of the Information, electronic copies\nof such Information may still remain on archives, hard drives, backup tapes and similar formats, and the Company acknowledges that, provided such\nInformation is not used or disclosed by you or your Representatives contrary to the terms of this Agreement, such remaining copies shall not be\ndeemed a breach of this paragraph. Furthermore, notwithstanding anything to the contrary herein, you and your Representatives may retain copies of\nany Information in order to comply with your and their legal and regulatory record-keeping obligations, and do not have to return or destroy\nInformation to the extent that retention of such Information is, in good faith, in order to comply with your or their regulators’ and/or auditors’\nexpectations of best practices and/or applicable law or to defend yourself or themselves in litigation.\nIn consideration of and as a condition to the Company furnishing the Information to you under this Agreement, you agree that for a period of\none year from the date of this Agreement, neither you nor any of your affiliates will, directly or indirectly, solicit or employ any of the i) current\nofficers or director-level employees, without obtaining the prior written consent of the Company, or ii) other employees of the Company (so long as\nthey are employed by the Company) who are in discussion with you relating to this Agreement, without obtaining the prior written consent of the\nCompany, (it being understood that any newspaper or other general solicitation, including without limitation, web-based advertisements, not directed\nspecifically to such person shall not be deemed to be a solicitation for purposes of this provision).\nYou acknowledge and agree that the Company will be irreparably injured by a breach of this Agreement by you or your Representatives, that\nmonetary remedies may be inadequate to protect the Company against any actual or threatened breach of this Agreement by you or your\nRepresentatives, and that the Company shall be entitled to seek specific performance or other equitable relief as a remedy for any such breach\nwithout posting a bond.\n2\nFor a period of twelve (12) months commencing on the date of this Agreement, you shall not, nor shall any of your subsidiaries or\nRepresentatives, in any manner, directly or indirectly, acting alone or in concert with others, effect or seek, offer or propose (whether publicly or\notherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise)\nto effect or participate in, (i) any acquisition of beneficial ownership, as defined in Rule 13d-3 under the 1934 Act, of any substantial portion (i.e.,\nmore than 5%) of any securities or assets of the Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business\ncombination involving the Company or any of its subsidiaries; (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the\nSecurities and Exchange Commission) or consents to vote any voting securities of the Company; or (iv) take any action that might require the\nCompany to make a announcement regarding any of the types of matters set forth above; nor shall you engage in short selling activities with respect\nto securities of the Company. The provisions of this paragraph will not prohibit the ownership by you or any of your affiliates, subsidiaries or\nRepresentatives of any securities of the Company or a third party that you or any of your affiliates, subsidiaries or Representatives own as of the date\nhereof or the purchase by the Company or any of the Company’s affiliates of any of the securities held as of the date hereof.\nThe agreements contained in the immediately preceding paragraph shall terminate and be of no effect if (i) the Company enters into an\nagreement relating to any (a) merger, consolidation, business combination, binding share exchange or similar transaction involving the Company in\neach case, in which the Company will not be the entity surviving such transaction, (b) sale, lease or other disposition or series of related dispositions,\ndirectly or indirectly, by merger, consolidation or otherwise of assets of the Company or its subsidiaries representing all or substantially all of the\nconsolidated assets of the Company and its subsidiaries, (c) issue, sale or other disposition or series of related dispositions by the Company of\n(including by of merger, consolidation, binding share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or\nsecurities convertible into such securities) representing 50% or more of the voting power of the Company to a single purchaser or an affiliated group\nof purchasers or (d) other transaction or series of related transactions pursuant to which any person or entity shall acquire beneficial ownership, as is\ndefined in Rule 13d-3 under the 1934 Act, or the right to acquire beneficial ownership of, 50% or more of the outstanding common stock of the\nCompany, or (ii) any corporation, partnership, person or other entity or group commences a tender offer or exchange offer to acquire 50% or more of\nthe outstanding voting securities of the Company without the consent of the Board of Directors of the Company.\nYou acknowledge that you are aware that the securities laws of the United States prohibit any person who has material, non-public information\nconcerning the Company or a possible transaction involving the Company from purchasing or selling the Company’s securities when in possession\nof such information and from communicating such information to any other person or entity under circumstances in which it is reasonably\nforeseeable that such person or entity is likely to purchase or sell such securities in reliance upon such information.\nNotwithstanding any other provision of this Agreement to the contrary, this Agreement and all of the terms, conditions, undertakings and\nprohibitions contained herein shall terminate upon the earlier to occur of (i) two (2) years after the date of this Agreement or (ii) such time as the\nInformation has been publicly disclosed by or on behalf of the Company whichever is earlier\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey. The parties consent to the\nexclusive jurisdiction of the federal and state courts located in Newark, New Jersey. This Agreement may be executed in one or more counterparts,\neach of which shall be deemed to be an original copy of this Agreement and all of which, when taken together, shall be deemed to constitute one and\nthe same Agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution\nand delivery of this Agreement by the parties hereto.\n3\nPlease confirm your agreement with the foregoing by executing this Agreement in the space provided below and returning one copy of this\nAgreement to us for our files.\nVery truly yours,\n/s/ Robert F. Doman\nRobert F. Doman,\nPresident and CEO\nAccepted and agreed to as of the date\nfirst written above:\nBy: /s/ James E. Hattersley\nJames E. Hattersley\nVice President, Business Development\nSun Pharmaceutical Industries, Inc.\n4	EX-99.(E).(3) 5 d443014dex99e3.htm CONFIDENTIALITY AGREEMENT BETWEEN SUN PHARMACEUTICAL\nINDUSTRIES, INC.\nExhibit (e)(3)\nMay 11, 2012\nCONFIDENTIAL AND PROPRIETARY\nJames Hattersley\nVice President, Corp. Business Development\nSun Pharmaceutical Industries, Inc.\n270 Prospect Plains Road\nCranbury, New Jersey 08512\nRe: Confidentiality Agreement\nDear Mr. Hattersley:\nIn connection with your evaluation of a potential transaction (the “Potential Transaction”) with DUSA Pharmaceuticals, Inc. (the “Company™),\nwe are prepared to make available to you and/or your Representatives (as defined below) certain confidential information relating to the Company\nand/or the Potential Transaction. As a condition to such information being furnished to you and your Representatives, you hereby agree to treat any\nInformation (as defined below), whether prepared by the Company, its Representatives or otherwise, which is furnished to you or your\nRepresentatives now or in the future by or on behalf of the Company pursuant hereto in accordance with the terms and provisions of this agreement\n(this “Agreement”) and to take or abstain from taking certain other actions as hereinafter set forth. As used herein, a party’s “Representatives” shall\nmean such party’s directors, officers, employees, agents, affiliates and advisors (including, without limitation, such party’s attorneys, accountants,\nconsultants and financial advisors).\nThe term “Information” shall be deemed to mean (subject to the following sentence) any confidential or otherwise proprietary information\nrelating to the Company that the Company or any of its Representatives disclose to you, on or after the date of this Agreement, regardless of the\nmanner in which it is furnished, together with all portions of notes, analyses, compilations, studies, interpretations or other documents prepared by\nyou or your Representatives which contain, in whole or in part, the Information furnished to you or your Representatives pursuant to this Agreement.\nThe term “Information” shall not include, and the obligations of this Agreement shall not apply to, information which (i) is or becomes generally\navailable to the public other than as a result of an unauthorized disclosure by you or your Representatives in breach of this Agreement, (ii) was\nwithin your or any of your Representative’s possession prior to its being furnished to you by or on behalf of the Company pursuant to this\nAgreement, provided that the source of such information was not known by you to be bound by an agreement with or other contractual, legal or\nfiduciary obligation of confidentiality to the Company or any other party with respect to such information, (iii) becomes available to you or any of\nyour Representatives from a source other than the Company or any of its Representatives, provided that such source is not known by you to be\nbound by an agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to\nsuch information, or (iv) was or is developed by you or your Representatives independently of such information.\nExcept as otherwise provided herein, you hereby agree that you and your Representatives shall use the Information solely for the purpose of\nevaluating the Potential Transaction, that the Information will be kept strictly confidential by you and your Representatives, and that you and your\nRepresentatives will not disclose any of the Information in any manner whatsoever; provided, however, that (i) you may make any disclosure of the\nInformation to which the Company gives its prior written consent, (ii) any of the Information may be disclosed to your Representatives who need to\nknow the Information for the sole purpose of evaluating the Potential Transaction, who agree to nondisclosure and non-use terms with respect to the\nInformation that are no less strict than the terms of this Agreement and (iii) any Information may be disclosed if required by operation of law, rule or\nregulation or by any court or other governmental or regulatory authority; provided that you provide prompt written notice to the Company so that the\nCompany may seek a protective order or other appropriate remedy. If, in the absence of a protective order or other appropriate remedy or the receipt\nof a waiver by the Company, you or any of your\nRepresentatives are nonetheless, upon advice of counsel, legally compelled to disclose Information or else stand liable for contempt or suffer other\ncensure or penalty, you or your Representative, as applicable, may, without liability hereunder, disclose only that portion of the Information which\nsuch counsel advises is legally required to be disclosed, provided that you and your Representative exercise your respective reasonable efforts to\npreserve the confidentiality of the Information, including, without limitation, by cooperating with the Company, at the Company’s expense, to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded the Information. In any event, you shall be\nresponsible for any breach of this Agreement by any of your Representatives.\nYou represent that neither you nor any of your Representatives has entered into, directly or indirectly, any agreement or understanding with\nany person (other than any agreement between you and your Representatives) with respect to a Potential Transaction or that could otherwise affect\nsuch person’s decisions or actions with respect to a Potential Transaction involving the Company. In addition, you agree that, without the prior\nwritten consent of the Company, you and your Representatives will not disclose to any other person the fact that the Information has been made\navailable to you or that discussions or negotiations are taking place between the Company and you concerning the Potential Transaction or any of the\nterms, conditions or other facts with respect thereto (including the status thereof), unless in the opinion of your counsel such disclosure is required by\nlaw, rule or regulation or by any court or other governmental or regulatory authority; provided that you provide prompt written notice to the\nCompany so that the Company may seek a protective order or other appropriate remedy.\nNothing contained in this Agreement shall require either party hereto to enter into the Potential Transaction or any other transaction or to\nnegotiate for the same for any specified period of time. All Information disclosed to you shall be and remain the property of the Company and this\nAgreement shall not be construed as a license or any other grant of any right whatsoever in the Information. For clarity, no license under any patent,\ncopyright, trademark, other intellectual property right or any application therefore is hereby granted or implied by the provision of the Information to\nyou or your Representatives. Neither you nor your Representatives shall alter or obliterate any trademark or any other proprietary mark or notice\nthereof of the Company on any copy of the Information, and you shall reproduce any such mark or notice on all copies of the Information.\nYou agree that upon the request of the Company, you will return to the Company or destroy all Information furnished to you or your\nRepresentatives by or on behalf of the Company, without retaining any copies or extracts thereof, and you will destroy all portions of reports,\nanalyses, memoranda, notes or other documents prepared by you or your Representatives that contain the Information. You will confirm to us in\nwriting that destruction of all such Information has been completed. Notwithstanding the foregoing, the Company acknowledges that, in the ordinary\ncourse of your business and as a part of your customary practices, after the destruction or return of other copies of the Information, electronic copies\nof such Information may still remain on archives, hard drives, backup tapes and similar formats, and the Company acknowledges that, provided such\nInformation is not used or disclosed by you or your Representatives contrary to the terms of this Agreement, such remaining copies shall not be\ndeemed a breach of this paragraph. Furthermore, notwithstanding anything to the contrary herein, you and your Representatives may retain copies of\nany Information in order to comply with your and their legal and regulatory record-keeping obligations, and do not have to return or destroy\nInformation to the extent that retention of such Information is, in good faith, in order to comply with your or their regulators’ and/or auditors’\nexpectations of best practices and/or applicable law or to defend yourself or themselves in litigation.\nIn consideration of and as a condition to the Company furnishing the Information to you under this Agreement, you agree that for a period of\none year from the date of this Agreement, neither you nor any of your affiliates will, directly or indirectly, solicit or employ any of the i) current\nofficers or director-level employees, without obtaining the prior written consent of the Company, or ii) other employees of the Company (so long as\nthey are employed by the Company) who are in discussion with you relating to this Agreement, without obtaining the prior written consent of the\nCompany, (it being understood that any newspaper or other general solicitation, including without limitation, web-based advertisements, not directed\nspecifically to such person shall not be deemed to be a solicitation for purposes of this provision).\nYou acknowledge and agree that the Company will be irreparably injured by a breach of this Agreement by you or your Representatives, that\nmonetary remedies may be inadequate to protect the Company against any actual or threatened breach of this Agreement by you or your\nRepresentatives, and that the Company shall be entitled to seek specific performance or other equitable relief as a remedy for any such breach\nwithout posting a bond.\nFor a period of twelve (12) months commencing on the date of this Agreement, you shall not, nor shall any of your subsidiaries or\nRepresentatives, in any manner, directly or indirectly, acting alone or in concert with others, effect or seek, offer or propose (whether publicly or\notherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise)\nto effect or participate in, (i) any acquisition of beneficial ownership, as defined in Rule 13d-3 under the 1934 Act, of any substantial portion (i.e.,\nmore than 5%) of any securities or assets of the Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business\ncombination involving the Company or any of its subsidiaries; (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the\nSecurities and Exchange Commission) or consents to vote any voting securities of the Company; or (iv) take any action that might require the\nCompany to make a announcement regarding any of the types of matters set forth above; nor shall you engage in short selling activities with respect\nto securities of the Company. The provisions of this paragraph will not prohibit the ownership by you or any of your affiliates, subsidiaries or\nRepresentatives of any securities of the Company or a third party that you or any of your affiliates, subsidiaries or Representatives own as of the date\nhereof or the purchase by the Company or any of the Company’s affiliates of any of the securities held as of the date hereof.\nThe agreements contained in the immediately preceding paragraph shall terminate and be of no effect if (i) the Company enters into an\nagreement relating to any (a) merger, consolidation, business combination, binding share exchange or similar transaction involving the Company in\neach case, in which the Company will not be the entity surviving such transaction, (b) sale, lease or other disposition or series of related dispositions,\ndirectly or indirectly, by merger, consolidation or otherwise of assets of the Company or its subsidiaries representing all or substantially all of the\nconsolidated assets of the Company and its subsidiaries, (c) issue, sale or other disposition or series of related dispositions by the Company of\n(including by of merger, consolidation, binding share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or\nsecurities convertible into such securities) representing 50% or more of the voting power of the Company to a single purchaser or an affiliated group\nof purchasers or (d) other transaction or series of related transactions pursuant to which any person or entity shall acquire beneficial ownership, as is\ndefined in Rule 13d-3 under the 1934 Act, or the right to acquire beneficial ownership of, 50% or more of the outstanding common stock of the\nCompany, or (ii) any corporation, partnership, person or other entity or group commences a tender offer or exchange offer to acquire 50% or more of\nthe outstanding voting securities of the Company without the consent of the Board of Directors of the Company.\nYou acknowledge that you are aware that the securities laws of the United States prohibit any person who has material, non-public information\nconcerning the Company or a possible transaction involving the Company from purchasing or selling the Company’s securities when in possession\nof such information and from communicating such information to any other person or entity under circumstances in which it is reasonably\nforeseeable that such person or entity is likely to purchase or sell such securities in reliance upon such information.\nNotwithstanding any other provision of this Agreement to the contrary, this Agreement and all of the terms, conditions, undertakings and\nprohibitions contained herein shall terminate upon the earlier to occur of (i) two (2) years after the date of this Agreement or (ii) such time as the\nInformation has been publicly disclosed by or on behalf of the Company whichever is earlier\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey. The parties consent to the\nexclusive jurisdiction of the federal and state courts located in Newark, New Jersey. This Agreement may be executed in one or more counterparts,\neach of which shall be deemed to be an original copy of this Agreement and all of which, when taken together, shall be deemed to constitute one and\nthe same Agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution\nand delivery of this Agreement by the parties hereto.\nPlease confirm your agreement with the foregoing by executing this Agreement in the space provided below and returning one copy of this\nAgreement to us for our files.\nVery truly yours,\n/s/ Robert F. Doman\nRobert F. Doman,\nPresident and CEO\nAccepted and agreed to as of the date\nfirst written above:\nBy: /s/ James E. Hattersley\nJames E. Hattersley\nVice President, Business Development\nSun Pharmaceutical Industries, Inc.	EX-99.(E).(3) 5 d443014dex99e3.htm CONFIDENTIALITY AGREEMENT BETWEEN SUN PHARMACEUTICAL\nINDUSTRIES, INC.\nExhibit (e)(3)\nMay 11, 2012\nCONFIDENTIAL AND PROPRIETARY\nJames Hattersley\nVice President, Corp. Business Development\nSun Pharmaceutical Industries, Inc.\n270 Prospect Plains Road\nCranbury, New Jersey 08512\nRe: Confidentiality Agreement\nDear Mr. Hattersley:\nIn connection with your evaluation of a potential transaction (the "Potential Transaction") with DUSA Pharmaceuticals, Inc. (the "Company"),\nwe are prepared to make available to you and/or your Representatives (as defined below) certain confidential information relating to the Company\nand/or the Potential Transaction. As a condition to such information being furnished to you and your Representatives, you hereby agree to treat any\nInformation (as defined below), whether prepared by the Company, its Representatives or otherwise, which is furnished to you or your\nRepresentatives now or in the future by or on behalf of the Company pursuant hereto in accordance with the terms and provisions of this agreement\n(this "Agreement") and to take or abstain from taking certain other actions as hereinafter set forth. As used herein, a party's "Representatives" shall\nmean such party's directors, officers, employees, agents, affiliates and advisors (including, without limitation, such party's attorneys, accountants,\nconsultants and financial advisors).\nThe term "Information" shall be deemed to mean (subject to the following sentence) any confidential or otherwise proprietary information\nrelating to the Company that the Company or any of its Representatives disclose to you, on or after the date of this Agreement, regardless of the\nmanner in which it is furnished, together with all portions of notes, analyses, compilations, studies, interpretations or other documents prepared by\nyou or your Representatives which contain, in whole or in part, the Information furnished to you or your Representatives pursuant to this Agreement\nThe term "Information" shall not include, and the obligations of this Agreement shall not apply to, information which (i) is or becomes generally\navailable to the public other than as a result of an unauthorized disclosure by you or your Representatives in breach of this Agreement, (ii) was\nwithin your or any of your Representative's possession prior to its being furnished to you by or on behalf of the Company pursuant to this\nAgreement, provided that the source of such information was not known by you to be bound by an agreement with or other contractual, legal or\nfiduciary\nobligation\nof\nconfidentiality\nto\nthe\nCompany\nor\nany\nother\nparty\nwith\nrespect\nto\nsuch\ninformation,\n(iii)\nbecomes\navailable\nto\nyou\nor\nany\nof\nyour Representatives from a source other than the Company or any of its Representatives, provided that such source is not known by you to be\nbound by an agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to\nsuch information, or (iv) was or is developed by you or your Representatives independently of such information.\nExcept as otherwise provided herein, you hereby agree that you and your Representatives shall use the Information solely for the purpose of\nevaluating the Potential Transaction, that the Information will be kept strictly confidential by you and your Representatives, and that you and your\nRepresentatives will not disclose any of the Information in any manner whatsoever; provided, however, that (i) you may make any disclosure of the\nInformation to which the Company gives its prior written consent, (ii) any of the Information may be disclosed to your Representatives who need to\nknow\nthe\nInformation\nfor\nthe\nsole\npurpose\nof\nevaluating\nthe\nPotential\nTransaction,\nwho\nagree\nto\nnondisclosure\nand\nnon-use\nterms\nwith\nrespect\nto\nthe\nInformation that are no less strict than the terms of this Agreement and (iii) any Information may be disclosed if required by operation of law, rule or\nregulation or by any court or other governmental or regulatory authority; provided that you provide prompt written notice to the Company so that the\nCompany may seek a protective order or other appropriate remedy. If, in the absence of a protective order or other appropriate remedy or the receipt\nof a waiver by the Company, you or any of your\n1\nRepresentatives are nonetheless, upon advice of counsel, legally compelled to disclose Information or else stand liable for contempt or suffer other\ncensure or penalty, you or your Representative, as applicable, may, without liability hereunder, disclose only that portion of the Information which\nsuch counsel advises is legally required to be disclosed, provided that you and your Representative exercise your respective reasonable efforts to\npreserve the confidentiality of the Information, including, without limitation, by cooperating with the Company, at the Company's expense, to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded the Information. In any event, you shall be\nresponsible for any breach of this Agreement by any of your Representatives.\nYou represent that neither you nor any of your Representatives has entered into, directly or indirectly, any agreement or understanding with\nany person (other than any agreement between you and your Representatives) with respect to a Potential Transaction or that could otherwise affect\nsuch person's decisions or actions with respect to a Potential Transaction involving the Company. In addition, you agree that, without the prior\nwritten consent of the Company, you and your Representatives will not disclose to any other person the fact that the Information has been made\navailable to you or that discussions or negotiations are taking place between the Company and you concerning the Potential Transaction or any of the\nterms, conditions or other facts with respect thereto (including the status thereof), unless in the opinion of your counsel such disclosure is required by\nlaw, rule or regulation or by any court or other governmental or regulatory authority; provided that you provide prompt written notice to the\nCompany so that the Company may seek a protective order or other appropriate remedy.\nNothing contained in this Agreement shall require either party hereto to enter into the Potential Transaction or any other transaction or to\nnegotiate for the same for any specified period of time. All Information disclosed to you shall be and remain the property of the Company and this\nAgreement shall not be construed as a license or any other grant of any right whatsoever in the Information. For clarity, no license under any patent,\ncopyright, trademark, other intellectual property right or any application therefore is hereby granted or implied by the provision of the Information to\nyou or your Representatives. Neither you nor your Representatives shall alter or obliterate any trademark or any other proprietary mark or notice\nthereof of the Company on any copy of the Information, and you shall reproduce any such mark or notice on all copies of the Information.\nYou agree that upon the request of the Company, you will return to the Company or destroy all Information furnished to you or your\nRepresentatives by or on behalf of the Company, without retaining any copies or extracts thereof, and you will destroy all portions of reports,\nanalyses, memoranda, notes or other documents prepared by you or your Representatives that contain the Information. You will confirm to us in\nwriting that destruction of all such Information has been completed. Notwithstanding the foregoing, the Company acknowledges that, in the ordinary\ncourse of your business and as a part of your customary practices, after the destruction or return of other copies of the Information, electronic copies\nof such Information may still remain on archives, hard drives, backup tapes and similar formats, and the Company acknowledges that, provided such\nInformation is not used or disclosed by you or your Representatives contrary to the terms of this Agreement, such remaining copies shall not be\ndeemed a breach of this paragraph. Furthermore, notwithstanding anything to the contrary herein, you and your Representatives may retain copies of\nany Information in order to comply with your and their legal and regulatory record-keeping obligations, and do not have to return or destroy\nInformation to the extent that retention of such Information is, in good faith, in order to comply with your or their regulators' and/or auditors'\nexpectations of best practices and/or applicable law or to defend yourself or themselves in litigation.\nIn consideration of and as a condition to the Company furnishing the Information to you under this Agreement, you agree that for a period\nof\none year from the date of this Agreement, neither you nor any of your affiliates will, directly or indirectly, solicit or employ any of the i) current\nofficers or director-level employees, without obtaining the prior written consent of the Company, or ii) other employees of the Company (so long as\nthey are employed by the Company) who are in discussion with you relating to this Agreement, without obtaining the prior written consent of the\nCompany, (it being understood that any newspaper or other general solicitation, including without limitation, web-based advertisements, not directed\nspecifically to such person shall not be deemed to be a solicitation for purposes of this provision).\nYou acknowledge and agree that the Company will be irreparably injured by a breach of this Agreement by you or your Representatives, that\nmonetary remedies may be inadequate to protect the Company against any actual or threatened breach of this Agreement by you or your\nRepresentatives, and that the Company shall be entitled to seek specific performance or other equitable relief as a remedy for any such breach\nwithout posting a bond.\n2\nFor a period of twelve (12) months commencing on the date of this Agreement, you shall not, nor shall any of your subsidiaries or\nRepresentatives, in any manner, directly or indirectly, acting alone or in concert with others, effect or seek, offer or propose (whether publicly or\notherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise)\nto effect or participate in, (i) any acquisition of beneficial ownership, as defined in Rule 13d-3 under the 1934 Act, of any substantial portion (i.e.,\nmore than 5%) of any securities or assets of the Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business\ncombination involving the Company or any of its subsidiaries; (iii) any "solicitation" of "proxies" (as such terms are used in the proxy rules of\nthe\nSecurities and Exchange Commission) or consents to vote any voting securities of the Company; or (iv) take any action that might require the\nCompany to make a announcement regarding any of the types of matters set forth above; nor shall you engage in short selling activities with respect\nto securities of the Company. The provisions of this paragraph will not prohibit the ownership by you or any of your affiliates, subsidiaries\nor\nRepresentatives of any securities of the Company or a third party that you or any of your affiliates, subsidiaries or Representatives own as of the date\nhereof or the purchase by the Company or any of the Company's affiliates of any of the securities held as of the date hereof.\nThe agreements contained in the immediately preceding paragraph shall terminate and be of no effect if (i) the Company enters into\nan\nagreement relating to any (a) merger, consolidation, business combination, binding share exchange or similar transaction involving the Company in\neach case, in which the Company will not be the entity surviving such transaction, (b) sale, lease or other disposition or series of related dispositions,\ndirectly or indirectly, by merger, consolidation or otherwise of assets of the Company or its subsidiaries representing all or substantially all of the\nconsolidated assets of the Company and its subsidiaries, (c) issue, sale or other disposition or series of related dispositions by the Company of\n(including by of merger, consolidation, binding share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or\nsecurities convertible into such securities) representing 50% or more of the voting power of the Company to a single purchaser or an affiliated group\nof purchasers or (d) other transaction or series of related transactions pursuant to which any person or entity shall acquire beneficial ownership, as\nis\ndefined in Rule 13d-3 under the 1934 Act, or the right to acquire beneficial ownership of, 50% or more of the outstanding common stock of\nthe\nCompany, or (ii) any corporation, partnership, person or other entity or group commences a tender offer or exchange offer to acquire 50% or more of\nthe outstanding voting securities of the Company without the consent of the Board of Directors of the Company.\nYou acknowledge that you are aware that the securities laws of the United States prohibit any person who has material, non-public information\nconcerning the Company or a possible transaction involving the Company from purchasing or selling the Company's securities when in possession\nof\nsuch information and from communicating such information to any other person or entity under circumstances in which it is reasonably\nforeseeable that such person or entity is likely to purchase or sell such securities in reliance upon such information.\nNotwithstanding any other provision of this Agreement to the contrary, this Agreement and all of the terms, conditions, undertakings and\nprohibitions contained herein shall terminate upon the earlier to occur of (i) two (2) years after the date of this Agreement or (ii) such time as the\nInformation has been publicly disclosed by or on behalf of the Company whichever is earlier\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey. The parties consent to the\nexclusive jurisdiction of the federal and state courts located in Newark, New Jersey. This Agreement may be executed in one or more counterparts,\neach of which shall be deemed to be an original copy of this Agreement and all of which, when taken together, shall be deemed to constitute one\nand\nthe same Agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution\nand delivery of this Agreement by the parties hereto.\n3\nPlease confirm your agreement with the foregoing by executing this Agreement in the space provided below and returning one copy of this\nAgreement to us for our files.\nVery truly yours,\n/s/ Robert F. Doman\nRobert F. Doman,\nPresident and CEO\nAccepted and agreed to as of the date\nfirst written above:\nBy: /s/ James E. Hattersley\nJames E. Hattersley\nVice President, Business Development\nSun Pharmaceutical Industries, Inc.\n4	EX-99.(E).(3) 5 d443014dex99e3.htm CONFIDENTIALITY AGREEMENT BETWEEN SUN PHARMACEUTICAL\nINDUSTRIES, INC.\nExhibit (e)(3)\nMay 11, 2012\nCONFIDENTIAL AND PROPRIETARY\nJames Hattersley\nVice President, Corp. Business Development\nSun Pharmaceutical Industries, Inc.\n270 Prospect Plains Road\nCranbury, New Jersey 08512\nRe: Confidentiality Agreement\nDear Mr. Hattersley:\nIn connection with your evaluation of a potential transaction (the “Potential Transaction”) with DUSA Pharmaceuticals, Inc. (the “Company”),\nwe are prepared to make available to you and/or your Representatives (as defined below) certain confidential information relating to the Company\nand/or the Potential Transaction. As a condition to such information being furnished to you and your Representatives, you hereby agree to treat any\nInformation (as defined below), whether prepared by the Company, its Representatives or otherwise, which is furnished to you or your\nRepresentatives now or in the future by or on behalf of the Company pursuant hereto in accordance with the terms and provisions of this agreement\n(this “Agreement”) and to take or abstain from taking certain other actions as hereinafter set forth. As used herein, a party’s “Representatives” shall\nmean such party’s directors, officers, employees, agents, affiliates and advisors (including, without limitation, such party’s attorneys, accountants,\nconsultants and financial advisors).\nThe term “Information” shall be deemed to mean (subject to the following sentence) any confidential or otherwise proprietary information\nrelating to the Company that the Company or any of its Representatives disclose to you, on or after the date of this Agreement, regardless of the\nmanner in which it is furnished, together with all portions of notes, analyses, compilations, studies, interpretations or other documents prepared by\nyou or your Representatives which contain, in whole or in part, the Information furnished to you or your Representatives pursuant to this Agreement.\nThe term “Information” shall not include, and the obligations of this Agreement shall not apply to, information which (i) is or becomes generally\navailable to the public other than as a result of an unauthorized disclosure by you or your Representatives in breach of this Agreement, (ii) was\nwithin your or any of your Representative’s possession prior to its being furnished to you by or on behalf of the Company pursuant to this\nAgreement, provided that the source of such information was not known by you to be bound by an agreement with or other contractual, legal or\nfiduciary obligation of confidentiality to the Company or any other party with respect to such information, (iii) becomes available to you or any of\nyour Representatives from a source other than the Company or any of its Representatives, provided that such source is not known by you to be\nbound by an agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to\nsuch information, or (iv) was or is developed by you or your Representatives independently of such information.\nExcept as otherwise provided herein, you hereby agree that you and your Representatives shall use the Information solely for the purpose of\nevaluating the Potential Transaction, that the Information will be kept strictly confidential by you and your Representatives, and that you and your\nRepresentatives will not disclose any of the Information in any manner whatsoever; provided, however, that (i) you may make any disclosure of the\nInformation to which the Company gives its prior written consent, (ii) any of the Information may be disclosed to your Representatives who need to\nknow the Information for the sole purpose of evaluating the Potential Transaction, who agree to nondisclosure and non-use terms with respect to the\nInformation that are no less strict than the terms of this Agreement and (iii) any Information may be disclosed if required by operation of law, rule or\nregulation or by any court or other governmental or regulatory authority; provided that you provide prompt written notice to the Company so that the\nCompany may seek a protective order or other appropriate remedy. If, in the absence of a protective order or other appropriate remedy or the receipt\nof a waiver by the Company, you or any of your\n1\nRepresentatives are nonetheless, upon advice of counsel, legally compelled to disclose Information or else stand liable for contempt or suffer other\ncensure or penalty, you or your Representative, as applicable, may, without liability hereunder, disclose only that portion of the Information which\nsuch counsel advises is legally required to be disclosed, provided that you and your Representative exercise your respective reasonable efforts to\npreserve the confidentiality of the Information, including, without limitation, by cooperating with the Company, at the Company’s expense, to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded the Information. In any event, you shall be\nresponsible for any breach of this Agreement by any of your Representatives.\nYou represent that neither you nor any of your Representatives has entered into, directly or indirectly, any agreement or understanding with\nany person (other than any agreement between you and your Representatives) with respect to a Potential Transaction or that could otherwise affect\nsuch person’s decisions or actions with respect to a Potential Transaction involving the Company. In addition, you agree that, without the prior\nwritten consent of the Company, you and your Representatives will not disclose to any other person the fact that the Information has been made\navailable to you or that discussions or negotiations are taking place between the Company and you concerning the Potential Transaction or any of the\nterms, conditions or other facts with respect thereto (including the status thereof), unless in the opinion of your counsel such disclosure is required by\nlaw, rule or regulation or by any court or other governmental or regulatory authority; provided that you provide prompt written notice to the\nCompany so that the Company may seek a protective order or other appropriate remedy.\nNothing contained in this Agreement shall require either party hereto to enter into the Potential Transaction or any other transaction or to\nnegotiate for the same for any specified period of time. All Information disclosed to you shall be and remain the property of the Company and this\nAgreement shall not be construed as a license or any other grant of any right whatsoever in the Information. For clarity, no license under any patent,\ncopyright, trademark, other intellectual property right or any application therefore is hereby granted or implied by the provision of the Information to\nyou or your Representatives. Neither you nor your Representatives shall alter or obliterate any trademark or any other proprietary mark or notice\nthereof of the Company on any copy of the Information, and you shall reproduce any such mark or notice on all copies of the Information.\nYou agree that upon the request of the Company, you will return to the Company or destroy all Information furnished to you or your\nRepresentatives by or on behalf of the Company, without retaining any copies or extracts thereof, and you will destroy all portions of reports,\nanalyses, memoranda, notes or other documents prepared by you or your Representatives that contain the Information. You will confirm to us in\nwriting that destruction of all such Information has been completed. Notwithstanding the foregoing, the Company acknowledges that, in the ordinary\ncourse of your business and as a part of your customary practices, after the destruction or return of other copies of the Information, electronic copies\nof such Information may still remain on archives, hard drives, backup tapes and similar formats, and the Company acknowledges that, provided such\nInformation is not used or disclosed by you or your Representatives contrary to the terms of this Agreement, such remaining copies shall not be\ndeemed a breach of this paragraph. Furthermore, notwithstanding anything to the contrary herein, you and your Representatives may retain copies of\nany Information in order to comply with your and their legal and regulatory record-keeping obligations, and do not have to return or destroy\nInformation to the extent that retention of such Information is, in good faith, in order to comply with your or their regulators’ and/or auditors’\nexpectations of best practices and/or applicable law or to defend yourself or themselves in litigation.\nIn consideration of and as a condition to the Company furnishing the Information to you under this Agreement, you agree that for a period of\none year from the date of this Agreement, neither you nor any of your affiliates will, directly or indirectly, solicit or employ any of the i) current\nofficers or director-level employees, without obtaining the prior written consent of the Company, or ii) other employees of the Company (so long as\nthey are employed by the Company) who are in discussion with you relating to this Agreement, without obtaining the prior written consent of the\nCompany, (it being understood that any newspaper or other general solicitation, including without limitation, web-based advertisements, not directed\nspecifically to such person shall not be deemed to be a solicitation for purposes of this provision).\nYou acknowledge and agree that the Company will be irreparably injured by a breach of this Agreement by you or your Representatives, that\nmonetary remedies may be inadequate to protect the Company against any actual or threatened breach of this Agreement by you or your\nRepresentatives, and that the Company shall be entitled to seek specific performance or other equitable relief as a remedy for any such breach\nwithout posting a bond.\n2\nFor a period of twelve (12) months commencing on the date of this Agreement, you shall not, nor shall any of your subsidiaries or\nRepresentatives, in any manner, directly or indirectly, acting alone or in concert with others, effect or seek, offer or propose (whether publicly or\notherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise)\nto effect or participate in, (i) any acquisition of beneficial ownership, as defined in Rule 13d-3 under the 1934 Act, of any substantial portion (i.e.,\nmore than 5%) of any securities or assets of the Company or any of its subsidiaries, (ii) any tender or exchange offer, merger or other business\ncombination involving the Company or any of its subsidiaries; (iii) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the\nSecurities and Exchange Commission) or consents to vote any voting securities of the Company; or (iv) take any action that might require the\nCompany to make a announcement regarding any of the types of matters set forth above; nor shall you engage in short selling activities with respect\nto securities of the Company. The provisions of this paragraph will not prohibit the ownership by you or any of your affiliates, subsidiaries or\nRepresentatives of any securities of the Company or a third party that you or any of your affiliates, subsidiaries or Representatives own as of the date\nhereof or the purchase by the Company or any of the Company’s affiliates of any of the securities held as of the date hereof.\nThe agreements contained in the immediately preceding paragraph shall terminate and be of no effect if (i) the Company enters into an\nagreement relating to any (a) merger, consolidation, business combination, binding share exchange or similar transaction involving the Company in\neach case, in which the Company will not be the entity surviving such transaction, (b) sale, lease or other disposition or series of related dispositions,\ndirectly or indirectly, by merger, consolidation or otherwise of assets of the Company or its subsidiaries representing all or substantially all of the\nconsolidated assets of the Company and its subsidiaries, (c) issue, sale or other disposition or series of related dispositions by the Company of\n(including by of merger, consolidation, binding share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or\nsecurities convertible into such securities) representing 50% or more of the voting power of the Company to a single purchaser or an affiliated group\nof purchasers or (d) other transaction or series of related transactions pursuant to which any person or entity shall acquire beneficial ownership, as is\ndefined in Rule 13d-3 under the 1934 Act, or the right to acquire beneficial ownership of, 50% or more of the outstanding common stock of the\nCompany, or (ii) any corporation, partnership, person or other entity or group commences a tender offer or exchange offer to acquire 50% or more of\nthe outstanding voting securities of the Company without the consent of the Board of Directors of the Company.\nYou acknowledge that you are aware that the securities laws of the United States prohibit any person who has material, non-public information\nconcerning the Company or a possible transaction involving the Company from purchasing or selling the Company’s securities when in possession\nof such information and from communicating such information to any other person or entity under circumstances in which it is reasonably\nforeseeable that such person or entity is likely to purchase or sell such securities in reliance upon such information.\nNotwithstanding any other provision of this Agreement to the contrary, this Agreement and all of the terms, conditions, undertakings and\nprohibitions contained herein shall terminate upon the earlier to occur of (i) two (2) years after the date of this Agreement or (ii) such time as the\nInformation has been publicly disclosed by or on behalf of the Company whichever is earlier\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey. The parties consent to the\nexclusive jurisdiction of the federal and state courts located in Newark, New Jersey. This Agreement may be executed in one or more counterparts,\neach of which shall be deemed to be an original copy of this Agreement and all of which, when taken together, shall be deemed to constitute one and\nthe same Agreement. The exchange of copies of this Agreement and of signature pages by facsimile transmission shall constitute effective execution\nand delivery of this Agreement by the parties hereto.\n3\nPlease confirm your agreement with the foregoing by executing this Agreement in the space provided below and returning one copy of this\nAgreement to us for our files.\nVery truly yours,\n/s/ Robert F. Doman\nRobert F. Doman,\nPresident and CEO\nAccepted and agreed to as of the date\nfirst written above:\nBy: /s/ James E. Hattersley\nJames E. Hattersley\nVice President, Business Development\nSun Pharmaceutical Industries, Inc.\n4
+5279cc4e2863c1adbf1a5817cb4386dc.pdf	effective_date jurisdiction party term	EX-99.(D)(4) 8 a2226057zex-99 _d4.htm EX-99.(D)(4)\nExhibit (d)(4)\nADEPT TECHNOLOGY, INC.\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made and entered into as of November 7, 2014 (the “Effective\nDate”) by and between the Adept Technology, Inc. (“Adept”), a Delaware corporation, having its principal office at, located at 5960 Inglewood\nDrive, Pleasanton, CA 94588, and Omron Electronics LLC (“Company”), a Delaware limited liability company, having its principal office at\n2895 Greenspoint Parkway, Hoffman Estates, Illinois 60169. The parties wish to enter into discussions for and/or evaluate a prospective business\nagreement or transaction. Such discussions and evaluations, and any subsequent business transactions between the parties, are the “Purpose”.\nThe parties hereby agree as follows:\n1. As used herein, “Confidential Information” shall mean any and all technical and non-technical information, including technical data, trade\nsecrets. know how, processes, developments, techniques, methodologies, algorithms, software programs (including source code), designs,\ndrawings, formulas or test data relating to any project or services, service offerings, any financial, marketing, operational, legal, personnel,\ncustomer, potential customer, partner, potential partner, supply, strategic and business information and documentation, in all cases whether in\ntangible or intangible form and including information learned by observation during visits and/or demonstrations, provided by either party to the\nother that is marked or identified orally or in writing as confidential or that would be reasonably understood based on the facts and circumstances\nthat would be understood by a reasonable person in the same situation to be confidential.\n2. Notwithstanding Section 1, the term “Confidential Information” shall not include information or documentation that the receiving party can\nshow: (a) was already known to the receiving party prior to the disclosure of such information or documentation; (b) is disclosed to the receiving\nparty without obligation of confidentiality by a third party who has the right to make such disclosure; (c) is or becomes publicly-known through\nno fault of the receiving party; or (d) is independently developed by the receiving party without use of the Confidential Information.\n3. Each party agrees that it will hold in strict confidence and not disclose to any third party Confidential Information of the other, except as\napproved in writing by the other party to this Agreement. Notwithstanding the foregoing, Company is permitted to disclose Confidential\nInformation of Adept to personnel of Omron Corporation and Omron Management Center of America, Inc., provided that Company ensures\ncompliance by such companies and persons with the terms and conditions hereof and Company remains responsible for any non-compliance.\nEach party will use the Confidential Information for no purpose other than for the Purpose. Each party will only disclose such information based\non the Purpose to its professional advisors, employees and independent contractors who have a “need to know” such information, who are\ninformed that the information is confidential and who are under obligations of confidentiality at least as stringent as those set forth herein. In all\ncases, the party receiving information shall be responsible for compliance with this Agreement with regard to itself and any persons within this\nSection or otherwise to whom disclosure is made by it. The party to whom Confidential Information was disclosed shall not be in violation of\nthis Section 3 for a disclosure that was in response to a valid order by a court or other governmental body, or that is used for the bona fide\ndefense or pursuit of legal action based on the written advice of counsel, provided that in such a case or cases the party obligated to make such\ndisclosure provides the other party with reasonable prior written notice of such disclosure in order to permit the other party to seek to limit the\ndisclosure and/or seek confidential treatment of such information.\n4. Upon the written request of the other party, each party shall promptly return to the other (or destroy if destruction is requested and provide\nwritten certification of destruction) all documents and other tangible and intangible materials representing the other’s Confidential Information\nand all copies thereof.\n5. The parties recognize and agree that nothing contained in this Agreement shall be construed as granting any property rights, by license or\notherwise, to any Confidential Information of the other party disclosed pursuant to this Agreement, or to any invention or any trade secret, patent,\ncopyright, trademark, or other intellectual property right associated with such Confidential Information. Neither party shall use, copy, display,\npost, or prepare derivative works of or improvements to the Confidential Information, other than for the Purpose, or make, have made, use or sell\nfor any purpose any product, service or other item incorporating or derived from any Confidential Information of the other party.\n1\n6. Confidential Information shall not be reproduced in any form except as reasonably required for the Purpose. Any reproduction of any\nConfidential Information of the other party by either party shall remain the property of the disclosing party and shall contain any and all\nconfidential or proprietary notices or legends which appear on the original, unless otherwise authorized in writing by the other party.\n7. This Agreement shall continue in full force and effect for so long as the parties continue to exchange Confidential Information. This\nAgreement may be terminated by either party at any time upon thirty (30) days written notice to the other party, however its terms shall survive\nthe termination of this Agreement for a period of five (5) years from the date of such termination.\n8. Each party recognizes that the disclosure of the other party’s Confidential Information may give rise to irreparable injury and acknowledges\nthat remedies other than injunctive relief will not be adequate. Accordingly, each party shall have the right to seek equitable and injunctive relief\n(without the need to post a bond or other security) to prevent the unauthorized disclosure of its Confidential Information, as well as such\ndamages or other relief as may be available in law or equity for any unauthorized use or disclosure of such information.\n9. Nothing contained in this Agreement shall entitle a party to rely on the other or its advisors, or require a party to enter into any agreement or\ntransaction, or preclude a party from entering into any agreement or transaction or pursuing its lines of business, or obligate either party to the\nother party in any other way, except as expressly provided in this Agreement or in any other written agreement existing or entered into by the\nparties hereafter. Nothing contained in this Agreement shall compel either party to furnish information to the other party or to negotiate any\ntransaction.\n10. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such enforceability or invalidity shall not\nrender this Agreement unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best\naccomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.\n11. No delay or omission by a party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such\nright or power. A waiver by either party of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other\ncovenant.\n12. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given to the party to be notified:\n(a) upon personal delivery to the party; (b) one (1) business day following deposit for delivery to the party for delivery within the United States\nwith a nationally recognized overnight courier; (c) for delivery to the party via registered or certified mail, three (3) business days after deposit\nwith the U.S. Post Office for mailing or (d) upon confirmation of facsimile transmission, at the time noted on such confirmation sheet to the\nparty. In all cases, notice shall be made to the party at the location specified on the signature page of this Agreement. Each of the parties to this\nAgreement may change the location for notice by giving notice to the other party in accordance with the notice provisions contained in this\nparagraph.\n13. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California, U.S.A. without reference\nto conflict of law principles. Any disputes under this Agreement may be brought in the state courts or the Federal courts located in Alameda\nCounty, and the parties hereby consent to the exclusive subject matter personal jurisdiction and venue of these courts. This Agreement may not\nbe amended except in writing signed by both parties hereto.\n14. Neither party shall knowingly communicate any information to the other in violation of the rights of any third party.\n15. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party.\nNotwithstanding the foregoing, this Agreement shall be binding on each party’s lawful successors and assigns.\n16. The prevailing party, or if there is not one, the substantially prevailing party, in any action to enforce this Agreement shall be entitled to\nattorneys fees and costs in addition to any other available relief.\n17. No amendment to, or change, waiver or discharge of, any provision of this Agreement shall be valid unless in writing and signed by an\nauthorized representative of each party. This Agreement represents the entire agreement between the parties with respect to its subject matter and\nthere are no other representations, understandings or agreements between the parties relative to such subject matter,\n2\nexcept for any confidentiality or non-disclosure obligations that may be set forth in other written agreements signed by all parties thereto (“other\nNDAs”). In the event of an apparent conflict between or among provisions of this Agreement and provisions of other NDAs between the parties,\nsuch provisions shall be read in a mutually consistent way, or if no such reading is reasonably possible, the provisions most protective of\nConfidential Information shall take precedence over conflicting or less protective provisions. This Agreement may be executed in any number of\ncounterparts, each of which shall be deemed an original, but all of which taken together shall constitute one single agreement between the parties.\n18. The parties represent and acknowledge that Confidential Information may include material nonpublic information of the other party. The\nparties agree as recipients of such material nonpublic information, and agree to require any authorized recipient of such material nonpublic\ninformation, to not trade directly or indirectly in the other party’s securities while in possession of such material nonpublic information of the\nother party.\nIN WITNESS WHEREOF, the parties hereto have caused this Mutual Non-Disclosure Agreement to be executed as of the Effective Date.\nAGREED TO:\nAGREED TO:\nADEPT TECHNOLOGY, INC.\nOMRON ELECTRONICS LLC\n/s/ Rob Cain\n/s/ Nigel Blakeway\nSIGNATURE\nSIGNATURE\nRob Cain\nNigel Blakeway\nPRINT NAME\nPRINT NAME\nPresident and Chief Executive Officer\nChief Executive Officer\nTITLE\nTITLE\nAddress: 5960 Inglewood Drive\nAddress: 2895 Greenspoint Parkway\nPleasanton, CA 94588\nHoffman Estates, Illinois 60169\nPhone:\n925.245.3400\nPhone:\nFax:\n925.243.3510\nFax:\n3	EX-99.(D)(4) 8 a2226057zex-99_d4.htm EX-99.(D)(4)\nExhibit (d)(4)\nADEPT TECHNOLOGY, INC.\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made and entered into as of November 7, 2014 (the “Effective\nDate”) by and between the Adept Technology, Inc. (“Adept”), a Delaware corporation, having its principal office at, located at 5960 Inglewood\nDrive, Pleasanton, CA 94588, and Omron Electronics LL.C (“Company”), a Delaware limited liability company, having its principal office at\n2895 Greenspoint Parkway, Hoffman Estates, Illinois 60169. The parties wish to enter into discussions for and/or evaluate a prospective business\nagreement or transaction. Such discussions and evaluations, and any subsequent business transactions between the parties, are the “Purpose”.\nThe parties hereby agree as follows:\n1. As used herein, “Confidential Information” shall mean any and all technical and non-technical information, including technical data, trade\nsecrets. know how, processes, developments, techniques, methodologies, algorithms, software programs (including source code), designs,\ndrawings, formulas or test data relating to any project or services, service offerings, any financial, marketing, operational, legal, personnel,\ncustomer, potential customer, partner, potential partner, supply, strategic and business information and documentation, in all cases whether in\ntangible or intangible form and including information learned by observation during visits and/or demonstrations, provided by either party to the\nother that is marked or identified orally or in writing as confidential or that would be reasonably understood based on the facts and circumstances\nthat would be understood by a reasonable person in the same situation to be confidential.\n2. Notwithstanding Section 1, the term “Confidential Information” shall not include information or documentation that the receiving party can\nshow: (a) was already known to the receiving party prior to the disclosure of such information or documentation; (b) is disclosed to the receiving\nparty without obligation of confidentiality by a third party who has the right to make such disclosure; (c) is or becomes publicly-known through\nno fault of the receiving party; or (d) is independently developed by the receiving party without use of the Confidential Information.\n3. Each party agrees that it will hold in strict confidence and not disclose to any third party Confidential Information of the other, except as\napproved in writing by the other party to this Agreement. Notwithstanding the foregoing, Company is permitted to disclose Confidential\nInformation of Adept to personnel of Omron Corporation and Omron Management Center of America, Inc., provided that Company ensures\ncompliance by such companies and persons with the terms and conditions hereof and Company remains responsible for any non-compliance.\nEach party will use the Confidential Information for no purpose other than for the Purpose. Each party will only disclose such information based\non the Purpose to its professional advisors, employees and independent contractors who have a “need to know” such information, who are\ninformed that the information is confidential and who are under obligations of confidentiality at least as stringent as those set forth herein. In all\ncases, the party receiving information shall be responsible for compliance with this Agreement with regard to itself and any persons within this\nSection or otherwise to whom disclosure is made by it. The party to whom Confidential Information was disclosed shall not be in violation of\nthis Section 3 for a disclosure that was in response to a valid order by a court or other governmental body, or that is used for the bona fide\ndefense or pursuit of legal action based on the written advice of counsel, provided that in such a case or cases the party obligated to make such\ndisclosure provides the other party with reasonable prior written notice of such disclosure in order to permit the other party to seek to limit the\ndisclosure and/or seek confidential treatment of such information.\n4. Upon the written request of the other party, each party shall promptly return to the other (or destroy if destruction is requested and provide\nwritten certification of destruction) all documents and other tangible and intangible materials representing the other’s Confidential Information\nand all copies thereof.\n5. The parties recognize and agree that nothing contained in this Agreement shall be construed as granting any property rights, by license or\notherwise, to any Confidential Information of the other party disclosed pursuant to this Agreement, or to any invention or any trade secret, patent,\ncopyright, trademark, or other intellectual property right associated with such Confidential Information. Neither party shall use, copy, display,\npost, or prepare derivative works of or improvements to the Confidential Information, other than for the Purpose, or make, have made, use or sell\nfor any purpose any product, service or other item incorporating or derived from any Confidential Information of the other party.\n1\n \n6. Confidential Information shall not be reproduced in any form except as reasonably required for the Purpose. Any reproduction of any\nConfidential Information of the other party by either party shall remain the property of the disclosing party and shall contain any and all\nconfidential or proprietary notices or legends which appear on the original, unless otherwise authorized in writing by the other party.\n7. This Agreement shall continue in full force and effect for so long as the parties continue to exchange Confidential Information. This\nAgreement may be terminated by either party at any time upon thirty (30) days written notice to the other party, however its terms shall survive\nthe termination of this Agreement for a period of five (5) years from the date of such termination.\n8. Each party recognizes that the disclosure of the other party’s Confidential Information may give rise to irreparable injury and acknowledges\nthat remedies other than injunctive relief will not be adequate. Accordingly, each party shall have the right to seek equitable and injunctive relief\n(without the need to post a bond or other security) to prevent the unauthorized disclosure of its Confidential Information, as well as such\ndamages or other relief as may be available in law or equity for any unauthorized use or disclosure of such information.\n9. Nothing contained in this Agreement shall entitle a party to rely on the other or its advisors, or require a party to enter into any agreement or\ntransaction, or preclude a party from entering into any agreement or transaction or pursuing its lines of business, or obligate either party to the\nother party in any other way, except as expressly provided in this Agreement or in any other written agreement existing or entered into by the\nparties hereafter. Nothing contained in this Agreement shall compel either party to furnish information to the other party or to negotiate any\ntransaction.\n10. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such enforceability or invalidity shall not\nrender this Agreement unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best\naccomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.\n11. No delay or omission by a party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such\nright or power. A waiver by either party of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other\ncovenant.\n12. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given to the party to be notified:\n(a) upon personal delivery to the party; (b) one (1) business day following deposit for delivery to the party for delivery within the United States\nwith a nationally recognized overnight courier; (c) for delivery to the party via registered or certified mail, three (3) business days after deposit\nwith the U.S. Post Office for mailing or (d) upon confirmation of facsimile transmission, at the time noted on such confirmation sheet to the\nparty. In all cases, notice shall be made to the party at the location specified on the signature page of this Agreement. Each of the parties to this\nAgreement may change the location for notice by giving notice to the other party in accordance with the notice provisions contained in this\nparagraph.\n13. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California, U.S.A. without reference\nto conflict of law principles. Any disputes under this Agreement may be brought in the state courts or the Federal courts located in Alameda\nCounty, and the parties hereby consent to the exclusive subject matter personal jurisdiction and venue of these courts. This Agreement may not\nbe amended except in writing signed by both parties hereto.\n14. Neither party shall knowingly communicate any information to the other in violation of the rights of any third party.\n15. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party.\nNotwithstanding the foregoing, this Agreement shall be binding on each party’s lawful successors and assigns.\n16. The prevailing party, or if there is not one, the substantially prevailing party, in any action to enforce this Agreement shall be entitled to\nattorneys fees and costs in addition to any other available relief.\n17. No amendment to, or change, waiver or discharge of, any provision of this Agreement shall be valid unless in writing and signed by an\nauthorized representative of each party. This Agreement represents the entire agreement between the parties with respect to its subject matter and\nthere are no other representations, understandings or agreements between the parties relative to such subject matter,\n2\n \nexcept for any confidentiality or non-disclosure obligations that may be set forth in other written agreements signed by all parties thereto (“other\nNDAs”). In the event of an apparent conflict between or among provisions of this Agreement and provisions of other NDAs between the parties,\nsuch provisions shall be read in a mutually consistent way, or if no such reading is reasonably possible, the provisions most protective of\nConfidential Information shall take precedence over conflicting or less protective provisions. This Agreement may be executed in any number of\ncounterparts, each of which shall be deemed an original, but all of which taken together shall constitute one single agreement between the parties.\n18. The parties represent and acknowledge that Confidential Information may include material nonpublic information of the other party. The\nparties agree as recipients of such material nonpublic information, and agree to require any authorized recipient of such material nonpublic\ninformation, to not trade directly or indirectly in the other party’s securities while in possession of such material nonpublic information of the\nother party.\nIN WITNESS WHEREQOF, the parties hereto have caused this Mutual Non-Disclosure Agreement to be executed as of the Effective Date.\nAGREED TO: AGREED TO:\nADEPT TECHNOLOGY, INC. OMRON ELECTRONICSLLC\n/s/ Rob Cain /s/ Nigel Blakeway\nSIGNATURE SIGNATURE\nRob Cain Nigel Blakeway\nPRINT NAME PRINT NAME\nPresident and Chief Executive Officer Chief Executive Officer\nTITLE TITLE\nAddress: 5960 Inglewood Drive Address: 2895 Greenspoint Parkway\nPleasanton, CA 94588 Hoffman Estates, Illinois 60169\nPhone: 925.245.3400 Phone:\nFax: 925.243.3510 Fax:\n	EX-99.(D)(4) 8 a2226057zex-99_d4.htm EX-99.(D)(4)\nExhibit (d)(4)\nADEPT TECHNOLOGY, INC.\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this "Agreement") is made and entered into as of November 7, 2014 (the "Effective\nDate") by and between the Adept Technology, Inc. ("Adept"), a Delaware corporation, having its principal office at, located at 5960 Inglewood\nDrive, Pleasanton, CA 94588, and Omron Electronics LLC ("Company"), a Delaware limited liability company, having its principal office at\n2895 Greenspoint Parkway, Hoffman Estates, Illinois 60169. The parties wish to enter into discussions for and/or evaluate a prospective business\nagreement or transaction. Such discussions and evaluations, and any subsequent business transactions between the parties, are the "Purpose".\nThe parties hereby agree as follows:\n1. As used herein, "Confidential Information" shall mean any and all technical and non-technical information, including technical data, trade\nsecrets. know how, processes, developments, techniques, methodologies, algorithms, software programs (including source code), designs,\ndrawings, formulas or test data relating to any project or services, service offerings, any financial, marketing, operational, legal, personnel,\ncustomer, potential customer, partner, potential partner, supply, strategic and business information and documentation, in all cases whether in\ntangible or intangible form and including information learned by observation during visits and/or demonstrations, provided by either party to the\nother that is marked or identified orally or in writing as confidential or that would be reasonably understood based on the facts and circumstances\nthat would be understood by a reasonable person in the same situation to be confidential.\n2. Notwithstanding Section 1, the term "Confidential Information" shall not include information or documentation that the receiving party can\nshow: (a) was already known to the receiving party prior to the disclosure of such information or documentation; (b) is disclosed to the receiving\nparty without obligation of confidentiality by a third party who has the right to make such disclosure; (c) is or becomes publicly-known through\nno fault of the receiving party; or (d) is independently developed by the receiving party without use of the Confidential Information.\n3. Each party agrees that it will hold in strict confidence and not disclose to any third party Confidential Information of the other, except\nas\napproved in writing by the other party to this Agreement. Notwithstanding the foregoing, Company is permitted to disclose Confidential\nInformation\nof\nAdept\nto\npersonnel\nof\nOmron\nCorporation\nand\nOmron\nManagement\nCenter\nof\nAmerica,\nInc.,\nprovided\nthat\nCompany\nensures\ncompliance by such companies and persons with the terms and conditions hereof and Company remains responsible for any non-compliance.\nEach party will use the Confidential Information for no purpose other than for the Purpose. Each party will only disclose such information based\non the Purpose to its professional advisors, employees and independent contractors who have a "need to know" such information, who\nare\ninformed that the information is confidential and who are under obligations of confidentiality at least as stringent as those set forth herein. In all\ncases, the party receiving information shall be responsible for compliance with this Agreement with regard to itself and any persons within this\nSection or otherwise to whom disclosure is made by it. The party to whom Confidential Information was disclosed shall not be in violation of\nthis Section 3 for a disclosure that was in response to a valid order by a court or other governmental body, or that is used for the bona fide\ndefense or pursuit of legal action based on the written advice of counsel, provided that in such a case or cases the party obligated to make such\ndisclosure provides the other party with reasonable prior written notice of such disclosure in order to permit the other party to seek to limit\nthe\ndisclosure and/or seek confidential treatment of such information.\n4. Upon the written request of the other party, each party shall promptly return to the other (or destroy if destruction is requested and provide\nwritten certification of destruction) all documents and other tangible and intangible materials representing the other's Confidential Information\nand all copies thereof.\n5. The parties recognize and agree that nothing contained in this Agreement shall be construed as granting any property rights, by license or\notherwise, to any Confidential Information of the other party disclosed pursuant to this Agreement, or to any invention or any trade secret, patent,\ncopyright, trademark, or other intellectual property right associated with such Confidential Information. Neither party shall use, copy, display,\npost, or prepare derivative works of or improvements to the Confidential Information, other than for the Purpose, or make, have made, use or sell\nfor any purpose any product, service or other item incorporating or derived from any Confidential Information of the other party.\n1\n6. Confidential Information shall not be reproduced in any form except as reasonably required for the Purpose. Any reproduction of any\nConfidential Information of the other party by either party shall remain the property of the disclosing party and shall contain any and all\nconfidential or proprietary notices or legends which appear on the original, unless otherwise authorized in writing by the other party.\n7. This Agreement shall continue in full force and effect for so long as the parties continue to exchange Confidential Information. This\nAgreement may be terminated by either party at any time upon thirty (30) days written notice to the other party, however its terms shall survive\nthe termination of this Agreement for a period of five (5) years from the date of such termination.\n8. Each party recognizes that the disclosure of the other party's Confidentia Information may give rise to irreparable injury and acknowledges\nthat remedies other than injunctive relief will not be adequate. Accordingly, each party shall have the right to seek equitable and injunctive relief\n(without the need to post a bond or other security) to prevent the unauthorized disclosure of its Confidentia Information as well as such\ndamages or other relief as may be available in law or equity for any unauthorized use or disclosure of such information.\n9. Nothing contained in this Agreement shall entitle a party to rely on the other or its advisors, or require a party to enter into any agreement\nor\ntransaction, or preclude a party from entering into any agreement or transaction or pursuing its lines of business, or obligate either party\nto\nthe\nother party in any other way, except as expressly provided in this Agreement or in any other written agreement existing or entered into by the\nparties hereafter. Nothing contained in this Agreement shall compel either party to furnish information to the other party or to negotiate any\ntransaction.\n10. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such enforceability or invalidity shall not\nrender this Agreement unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best\naccomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.\n11. No delay or omission by a party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such\nright or power. A waiver by either party of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other\ncovenant.\n12. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given to the party to be notified:\n(a) upon personal delivery to the party; (b) one (1) business day following deposit for delivery to the party for delivery within the United States\nwith a nationally recognized overnight courier; (c) for delivery to the party via registered or certified mail, three (3) business days after\ndeposit\nwith the U.S. Post Office for mailing or (d) upon confirmation of facsimile transmission, at the time noted on such confirmation sheet to the\nparty. In all cases, notice shall be made to the party at the location specified on the signature page of this Agreement. Each of the parties to this\nAgreement may change the location for notice by giving notice to the other party in accordance with the notice provisions contained in this\nparagraph.\n13. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California, U.S.A. without reference\nto conflict of law principles. Any disputes under this Agreement may be brought in the state courts or the Federal courts located in Alameda\nCounty, and the parties hereby consent to the exclusive subject matter personal jurisdiction and venue of these courts. This Agreement may not\nbe amended except in writing signed by both parties hereto.\n14. Neither party shall knowingly communicate any information to the other in violation of the rights of any third party.\n15. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party.\nNotwithstanding the foregoing, this Agreement shall be binding on each party's lawful successors and assigns.\n16. The prevailing party, or if there is not one, the substantially prevailing party, in any action to enforce this Agreement shall be entitled to\nattorneys fees and costs in addition to any other available relief.\n17. No amendment to, or change, waiver or discharge of, any provision of this Agreement shall be valid unless in writing and signed by an\nauthorized representative of each party. This Agreement represents the entire agreement between the parties with respect to its subject matter and\nthere are no other representations, understandings or agreements between the parties relative to such subject matter,\n2\nexcept for any confidentiality or non-disclosure obligations that may be set forth in other written agreements signed by all parties thereto ("other\nNDAs"). In the event of an apparent conflict between or among provisions of this Agreement and provisions of other NDAs between the parties,\nsuch provisions shall be read in a mutually consistent way, or if no such reading is reasonably possible, the provisions most protective of\nConfidential Information shall take precedence over conflicting or less protective provisions. This Agreement may be executed in any number of\ncounterparts, each of which shall be deemed an original, but all of which taken together shall constitute one single agreement between the parties.\n18. The parties represent and acknowledge that Confidential Information may include material nonpublic information of the other party. The\nparties agree as recipients of such material nonpublic information, and agree to require any authorized recipient of such material nonpublic\ninformation, to not trade directly or indirectly in the other party's securities while in possession of such material nonpublic information of the\nother party.\nIN WITNESS WHEREOF, the parties hereto have caused this Mutual Non-Disclosure Agreement to be executed as of the Effective Date.\nAGREED TO:\nAGREED TO:\nADEPT TECHNOLOGY, INC.\nOMRON ELECTRONICS LLC\n/s/ Rob Cain\n/s/ Nigel Blakeway\nSIGNATURE\nSIGNATURE\nRob Cain\nNigel Blakeway\nPRINT NAME\nPRINT NAME\nPresident and Chief Executive Officer\nChief Executive Officer\nTITLE\nTITLE\nAddress: 5960 Inglewood Drive\nAddress: 2895 Greenspoint Parkway\nPleasanton, CA 94588\nHoffman Estates, Illinois 60169\nPhone:\n925.245.3400\nPhone:\nFax:\n925.243.3510\nFax:\n3	EX-99.(D)(4) 8 a2226057zex-99 _d4.htm EX-99.(D)(4)\nExhibit (d)(4)\nADEPT TECHNOLOGY, INC.\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made and entered into as of November 7, 2014 (the “Effective\nDate”) by and between the Adept Technology, Inc. (“Adept”), a Delaware corporation, having its principal office at, located at 5960 Inglewood\nDrive, Pleasanton, CA 94588, and Omron Electronics LLC (“Company”), a Delaware limited liability company, having its principal office at\n2895 Greenspoint Parkway, Hoffman Estates, Illinois 60169. The parties wish to enter into discussions for and/or evaluate a prospective business\nagreement or transaction. Such discussions and evaluations, and any subsequent business transactions between the parties, are the “Purpose”.\nThe parties hereby agree as follows:\n1. As used herein, “Confidential Information” shall mean any and all technical and non-technical information, including technical data, trade\nsecrets. know how, processes, developments, techniques, methodologies, algorithms, software programs (including source code), designs,\ndrawings, formulas or test data relating to any project or services, service offerings, any financial, marketing, operational, legal, personnel,\ncustomer, potential customer, partner, potential partner, supply, strategic and business information and documentation, in all cases whether in\ntangible or intangible form and including information learned by observation during visits and/or demonstrations, provided by either party to the\nother that is marked or identified orally or in writing as confidential or that would be reasonably understood based on the facts and circumstances\nthat would be understood by a reasonable person in the same situation to be confidential.\n2. Notwithstanding Section 1, the term “Confidential Information” shall not include information or documentation that the receiving party can\nshow: (a) was already known to the receiving party prior to the disclosure of such information or documentation; (b) is disclosed to the receiving\nparty without obligation of confidentiality by a third party who has the right to make such disclosure; (c) is or becomes publicly-known through\nno fault of the receiving party; or (d) is independently developed by the receiving party without use of the Confidential Information.\n3. Each party agrees that it will hold in strict confidence and not disclose to any third party Confidential Information of the other, except as\napproved in writing by the other party to this Agreement. Notwithstanding the foregoing, Company is permitted to disclose Confidential\nInformation of Adept to personnel of Omron Corporation and Omron Management Center of America, Inc., provided that Company ensures\ncompliance by such companies and persons with the terms and conditions hereof and Company remains responsible for any non-compliance.\nEach party will use the Confidential Information for no purpose other than for the Purpose. Each party will only disclose such information based\non the Purpose to its professional advisors, employees and independent contractors who have a “need to know” such information, who are\ninformed that the information is confidential and who are under obligations of confidentiality at least as stringent as those set forth herein. In all\ncases, the party receiving information shall be responsible for compliance with this Agreement with regard to itself and any persons within this\nSection or otherwise to whom disclosure is made by it. The party to whom Confidential Information was disclosed shall not be in violation of\nthis Section 3 for a disclosure that was in response to a valid order by a court or other governmental body, or that is used for the bona fide\ndefense or pursuit of legal action based on the written advice of counsel, provided that in such a case or cases the party obligated to make such\ndisclosure provides the other party with reasonable prior written notice of such disclosure in order to permit the other party to seek to limit the\ndisclosure and/or seek confidential treatment of such information.\n4. Upon the written request of the other party, each party shall promptly return to the other (or destroy if destruction is requested and provide\nwritten certification of destruction) all documents and other tangible and intangible materials representing the other’s Confidential Information\nand all copies thereof.\n5. The parties recognize and agree that nothing contained in this Agreement shall be construed as granting any property rights, by license or\notherwise, to any Confidential Information of the other party disclosed pursuant to this Agreement, or to any invention or any trade secret, patent,\ncopyright, trademark, or other intellectual property right associated with such Confidential Information. Neither party shall use, copy, display,\npost, or prepare derivative works of or improvements to the Confidential Information, other than for the Purpose, or make, have made, use or sell\nfor any purpose any product, service or other item incorporating or derived from any Confidential Information of the other party.\n1\n6. Confidential Information shall not be reproduced in any form except as reasonably required for the Purpose. Any reproduction of any\nConfidential Information of the other party by either party shall remain the property of the disclosing party and shall contain any and all\nconfidential or proprietary notices or legends which appear on the original, unless otherwise authorized in writing by the other party.\n7. This Agreement shall continue in full force and effect for so long as the parties continue to exchange Confidential Information. This\nAgreement may be terminated by either party at any time upon thirty (30) days written notice to the other party, however its terms shall survive\nthe termination of this Agreement for a period of five (5) years from the date of such termination.\n8. Each party recognizes that the disclosure of the other party’s Confidential Information may give rise to irreparable injury and acknowledges\nthat remedies other than injunctive relief will not be adequate. Accordingly, each party shall have the right to seek equitable and injunctive relief\n(without the need to post a bond or other security) to prevent the unauthorized disclosure of its Confidential Information, as well as such\ndamages or other relief as may be available in law or equity for any unauthorized use or disclosure of such information.\n9. Nothing contained in this Agreement shall entitle a party to rely on the other or its advisors, or require a party to enter into any agreement or\ntransaction, or preclude a party from entering into any agreement or transaction or pursuing its lines of business, or obligate either party to the\nother party in any other way, except as expressly provided in this Agreement or in any other written agreement existing or entered into by the\nparties hereafter. Nothing contained in this Agreement shall compel either party to furnish information to the other party or to negotiate any\ntransaction.\n10. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such enforceability or invalidity shall not\nrender this Agreement unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best\naccomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.\n11. No delay or omission by a party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such\nright or power. A waiver by either party of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other\ncovenant.\n12. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given to the party to be notified:\n(a) upon personal delivery to the party; (b) one (1) business day following deposit for delivery to the party for delivery within the United States\nwith a nationally recognized overnight courier; (c) for delivery to the party via registered or certified mail, three (3) business days after deposit\nwith the U.S. Post Office for mailing or (d) upon confirmation of facsimile transmission, at the time noted on such confirmation sheet to the\nparty. In all cases, notice shall be made to the party at the location specified on the signature page of this Agreement. Each of the parties to this\nAgreement may change the location for notice by giving notice to the other party in accordance with the notice provisions contained in this\nparagraph.\n13. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California, U.S.A. without reference\nto conflict of law principles. Any disputes under this Agreement may be brought in the state courts or the Federal courts located in Alameda\nCounty, and the parties hereby consent to the exclusive subject matter personal jurisdiction and venue of these courts. This Agreement may not\nbe amended except in writing signed by both parties hereto.\n14. Neither party shall knowingly communicate any information to the other in violation of the rights of any third party.\n15. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of the other party.\nNotwithstanding the foregoing, this Agreement shall be binding on each party’s lawful successors and assigns.\n16. The prevailing party, or if there is not one, the substantially prevailing party, in any action to enforce this Agreement shall be entitled to\nattorneys fees and costs in addition to any other available relief.\n17. No amendment to, or change, waiver or discharge of, any provision of this Agreement shall be valid unless in writing and signed by an\nauthorized representative of each party. This Agreement represents the entire agreement between the parties with respect to its subject matter and\nthere are no other representations, understandings or agreements between the parties relative to such subject matter,\n2\nexcept for any confidentiality or non-disclosure obligations that may be set forth in other written agreements signed by all parties thereto (“other\nNDAs”). In the event of an apparent conflict between or among provisions of this Agreement and provisions of other NDAs between the parties,\nsuch provisions shall be read in a mutually consistent way, or if no such reading is reasonably possible, the provisions most protective of\nConfidential Information shall take precedence over conflicting or less protective provisions. This Agreement may be executed in any number of\ncounterparts, each of which shall be deemed an original, but all of which taken together shall constitute one single agreement between the parties.\n18. The parties represent and acknowledge that Confidential Information may include material nonpublic information of the other party. The\nparties agree as recipients of such material nonpublic information, and agree to require any authorized recipient of such material nonpublic\ninformation, to not trade directly or indirectly in the other party’s securities while in possession of such material nonpublic information of the\nother party.\nIN WITNESS WHEREOF, the parties hereto have caused this Mutual Non-Disclosure Agreement to be executed as of the Effective Date.\nAGREED TO:\nAGREED TO:\nADEPT TECHNOLOGY, INC.\nOMRON ELECTRONICS LLC\n/s/ Rob Cain\n/s/ Nigel Blakeway\nSIGNATURE\nSIGNATURE\nRob Cain\nNigel Blakeway\nPRINT NAME\nPRINT NAME\nPresident and Chief Executive Officer\nChief Executive Officer\nTITLE\nTITLE\nAddress: 5960 Inglewood Drive\nAddress: 2895 Greenspoint Parkway\nPleasanton, CA 94588\nHoffman Estates, Illinois 60169\nPhone:\n925.245.3400\nPhone:\nFax:\n925.243.3510\nFax:\n3
+5296aac4de4f27fd5ab634b567d8d73f.pdf	effective_date jurisdiction party term	EX-10.32 7 ex10_32.htm\nNutraGenecs I TechniChef NutraGenecs\nConsulting Agreement & Non-Disclosure\nAgreement made this day of March 1, 2018 , by and between:\nNutraGenecs / Donna P. Henry\nPO Box 588 or 579 FM 2840, M eridian, Tx. 76665\nph: 903-378-2423\n(Consultant)\nRocky Mountain High Brands, Inc. / contact: Michael Welch\n9101 LBJ Freeway, Suite 200, Dallas, TX 75243\nph: 972-833-1588\n(Client)\nConsultant is an independent contractor willing to provide certain skills and abilities that the Client has needs. In consideration\nof the mutual terms, conditions set forth, Client and Consultant agree as follows:\n1. Independent Contractor: The Client hereby employs the Consultant as an independent contractor, and the Consultant\nhereby accepts contract. The Consultant shall perform the Services on a "best efforts" basis. The Consultant may engage\nin other business activities. Consultant is an independent contractor and nothing contained in this Agreement shall be\ndeemed or interpreted to constitute the Consultant as a partner, agent or an employee of the Client, nor shall either party\nhave any authority to bind the other.\n2. Effective Date: The term of this Agreement shall commence as above. After the first thirty (30) days of the term,either party\nmay, without cause, terminate this Agreement by giving twenty (20) business days written notice to the other, and\nConsultant shall return funds representing the unused portion of any prepayment within thirty (30) working days.\n3. Compensation: Client shall pay to Consultant in accordance with the terms set forth in Schedule " B or Quote " attached.\nConsultant will render invoice for services rendered net fifteen (15) business days. I f Client shall fail to pay for the services\nwithin the above time, Consultant shall be entitled to a service charge of 2 % per month on the unpaid balance. In the event\nthe unpaid account is turned over for collection, Client shall be responsible for all Consultants' costs, services charges, and\nexpenses (including reasonable attorneys' fees) associated with the collection, in addition to the unpaid balance.\n4. Services: Consultant agrees to perform the services listed in Schedule ''A" ("Services") below, Consultant shall devote\nsuch time, attention and energies as required to complete project.\n5. Other Terms and Conditions: Consultant shall notify the Client promptly of any expected delay in performance of services.\nHowever, Consultant shall not be liable for delays in performance beyond its reasonable control. Consultant agrees to\nperform the service with professional care, skill, and diligence in accordance with the standards and quality usually and\ncustomarily provided by Consultant to its client's.\n6. This Agreement between the parties and is intended as a complete and exclusive statement between the parties. No\nchange, modification, or transfer of this Agreement shall be valid unless the change is communicated in writing and\nsigned by both parties.\nINTENDING TO BE LEGALLY BOUND, the parties hereto have caused this Agreement to be executed as of the date first above written.\nPO Box 588 Meridian, Tx. 76665 I PHONE: 903-378 -2423 I donna@nutragenecs.com\nNutraGenecs I TechniChef\nPayment\n(a) The Consultant will submit to the Client an invoice for Services performed and expenses incurred. The standard invoice\nterms shall be net upon receipt - 15 days after issuance, unless other arrangements have been made. Invoices will be\nsent through PayPal by email. Invoices can be paid via PayPal or by company check mailed. Invoices unpaid after 8\nweeks from issuance shall accrue interest at the rate of 2% per month, from the date of issuance to the date payment is\nreceived\n(b) If Client Identifies any discrepancy, or dispute on a Consultant Invoice, the Client shall promptly notify Consultant of\nany disputed amounts and the parties will use their best efforts to resolve the dispute as promptly as possible\n(c) Consultant shall be responsible for payment of all taxes (federal, state, and local) that may be due upon its compensation\n(d) Client shall deposit with Consultant a retainer to secure payment for Services rendered by Consultant. In the event that\nany amount due to Consultant is not paid when due, then Consultant may deduct any such amount from the retainer and\nrequire that the retainer be restored before any further work for Client is done. Client may apply the retainer or portion\nthereof against amounts owed under the final invoice issued by Consultant, and the balance of the retainer, if any, shall\nbe returned to the Client. In the event that all amounts due to Consultant are paid then the full amount of the deposit shall\nbe refunded to the Client upon the expiration or termination of this Agreement\n(e) Consultant shall not be required to perform any work for Client when any amount due by the Client shall be in default.\nThis agreement for consulting services is approved by the signing of the client and consultant:\nNutraGenecs / TechniChef\nsignature: /s/ Donna P. Henry\nDate: 2.27.2018\n(Consultant)\nRocky Mountain High Brands, Inc. / by Michael Welch, President & CEO\nsignature: /s/ Michael Welch\nDate: 3.1.2018\n(Client)\nPO Box 588 Meridian, Tx. 76665 PHONE: 903-378-2423 donna@nutragenecs.com\n2\nNutraGenecs I TechniChef\nCONSULTING AGREEMENT\nSchedule " A" : Agreement and Non-Disclosure\nThis agreement for consulting services is between NutraGenecs (Consultant), RHHB (Client)\nServices Client hereby agrees to utilize the Consultant to perform the following consulting services:\nl. Provide technical formulation expertise In the development or restructuring formulas to achieve particular\nattributes as requested. Information provided upon completion of project Includes: products / ingredients /\nprocesses Including formul ation adjustments and/ or processes using Industrial Ingredients containing\nvendor,Ingredient, processing information if applicable, other development as requested. RHHB retains all\nrights to all information developed/adjusted through this agreement.\n2. See reduced rates on Quote attached, or normal rates on page 3 of document. Retainer to begin project is $1000\nand wilI be deducted from the final invoice. The invoice will be emailed bl-weekly through PayPal. Should a\ncredit be Involved it will be paid with the final Invoice. In this working partnership we will be working on\nproducts over a longer term, so the lab rates will be reduced to the rates per hour in the Quote provided.\nNutraGenecs will be responsible for the taxes on the Income.\nNon-Disclosure Agreement\n(Transfer Of Proprietary Information, Non-Disclosure And Confidentiality Agreement )\nIn its sole discretion, the Disclosing Party will provide to the Receiving Party certain confidential and proprietary information for the purpose of\nallowing the Receiving Party to evaluate its interest in accordance with the following terms and conditions: The parties agree as follows:\n1.\n"Confidential Information" shall mean all strategic & development plans, financial condition, business plans, co-developer\nidentities, data, business records, customer lists, project records,market reports, employee lists and business manuals,\npolicies and procedures, information processes,technologies or other Information disclosed by Disclosing Party or which the\nReceiving Party may have provided or has generated in accordance with this Agreement, and is not generally available to\nthe public.\n2 Nondisclosure Obligations. Receiving Party promises and agrees to receive and hold the Confidential Information in\nconfidence.\nA. To protect and safeguard the Confidential Information against unauthorized use, publication or disclosure; not to\nuse any of the Confidential Information except for the Business Purposes.\nB. Not to, directly or indirectly, in any way, reveal. report, publish, disclose. transfer or otherwise use any of\nthe Confidential Information except as authorized by Disclosing Party in accordance with this agreement.\n3. Restrictions. The restrictions herein provided shall not apply with respect to "Confidential Information" which:\nA. Is known by the Receiving Party at the time of receipt; or becomes a part of the public domain without breach of\nthis Agreement, or is legitimately obtained by the Receiving Party without a commitment of confidentiality from a\nthird party. Or is disclosed pursuant to judicial action or government regulations.\n11. Remedies . Receiving Party understands that any disclosure or misappropriation of any of the Confidential Information in\nviolation of this Agreement may cause Disclosing Party irreparable harm. This Agreement shall be governed with the laws\nof the State of Texas.\n5. Term and Termination. This Agreement shall commence on the signed document date. Receiving Party's right to use the\nConfidential Information for Business Purposes shall continue in effect for the length of the project until Disclosing Party\nprovides a written notice of termination of such right, whichever is first. This agreement may not be modified except In writing\nsigned by each of the parties to the agreement.\nThis Non Disclosure supplements but does not replace the NDA agreement previously signed by the parties.\nPO Box 588 I Meridian, Tx.. 76665 I PHONE: 903-378 -2423 I donna@nutragenecs.com I\n3\nCONSULTING AGREEMENT\nSchedule " B": Consultant Compensation\nThe Consultant will provide the services to the Client as detailed in Schedule "A".\nRetainer amount $1000 prepayment will be applied to final invoice amount or total (see paragraph under description of services)\nExpense amount $ _actual Incurred expenses/ or company will pre-arrange travel, accommodations, etc. If applicable.\nThe Client hires Consultant to do the work required and agrees to the following payment schedule:\nThe Consultant will perform the work for the Client, at the rate of _schedule B or Quote_ and for a total amount not to exceed the\ncompany-defined amount. The Consultant agrees not to surpass the maximum stated amount, except as provided that the Client\nand the Consultant mutually agree to modify the stated amount.\nClient Changes:\nExpenses\nIn the even t that Client changes, alters, or modifies any materials, documents or other work product prepared by Consultant ,\nConsultant shall not be responsible or liable for the consequences on the part of the Client\nThe Client shall reimburse Consultant for all reasonable and necessary expenses, incurred in connection with the performance\nof the Services, such as travel, lodging, food or other expenses Incurred. All local travel (car) expenses will be reimbursed to\nConsultant at the rate of $0.50 per mile or current FDA rate. All travel time Incurred by Consultant will be reimbursed at of the\nhourly rate of $40 All other reimbursable expenses In excess of $_ $200_ will be subject to pre- approval, in writing via FAX or\nother method of transmission, by Client.\nThe following are the applicable Consultant rates and prices,unless an a greed upon rate for the entire project has be prearranged.\nACTIVITY\nRATE\nFEE\nInitial Consulting (phone or local visit/ or lunch meeting)\nNo Charge\nMileage if applicable\nOn-site Consulting (visits, inspections, audits, process scale-up) (8 hours\nor less)\nper day(plus travel & miles)\n$600\nQuality System / Audit Development (varies per situation complexity)\nnegotiable\nNegotiable\nWriting & research (development, formulations, specifications, msds)\nper hour\n$80\nProduct Development (laboratory, benchtop, equipment, analysis, etc.) per hour\n$85\nlabeling/ Ingredient Dec. (USDA/FDA/Retail/Industrial/FoodService)\nper label\n$100-$300\nFood Law/ Nutritional Label (raw material system addition per ingred.\nextra)\nper label (10 ing & less)\n$300\nFood Law/ Export documentation (ingredient statements USDA or FDA,\nsanitary, per shipment natural, conformance.)\nper shipment\nProduct dependent\nGeneral Computer usage/ phone time (samples, etc.)\nper hour\n$60\nSensory Analysis (consumer varied site testing,120 people, analysis &\nreports)\nper daily testing event\n$10,000\nOther Sensory dependent upon type of testing and location.\nOut of pocket expenses (Supplies and outside Analytical Services)\nactual\nActual\nPO Box 588 I Meridian, Tx.. 76665 I PHONE: 903-378 -2423 I donna@nutragenecs.com I\n4	EX-10.32 7 ex10_32.htm NutraGenecs I TechniChef NutraGenecs Consulting Agreement & Non-Disclosure\nAgreement made this day of March 1, 2018 , by and between:\n \nNutraGenecs | Donna P. Henry PO Box 588 or 579 FM 2840, Meridian Tx 76665 ph: 903-378-2423 (Consultant) Rocky Mountain High Brands, Inc. | contact: Michael Welch 9101 LBJ Freeway, Suite 200, Dallas, TX 75243 ph: 972-833-1588 (Client) Consultant is an independent contractor willing to provide certain skills and abilities that the Client has needs. In consideration of the mutual terms, conditions set forth, Client and Consultant agree as follows: 1. Independent Contractor: The Client hereby employs the Consultant as an independent contractor, and the Consultant\nhereby accepts contract. The Consultant shall perform the Services on a "best efforts" basis. The Consultant may engage\nin other business activities. Consultant is an independent contractor and nothing contained in this Agreement shall be\ndeemed or interpreted to constitute the Consultant as a partner, agent or an employee of the Client, nor shall either party\nhave any authority to bind the other.\nEffective Date: The term of this Agreement shall commence as above. After the first thirty (30) days of the term,either party\nmay, without cause, terminate this Agreement by giving twenty (20) business days written notice to the other, and\nConsultant shall return funds representing the unused portion of any prepayment within thirty (30) working days.\nCompensation: Client shall pay to Consultant in accordance with the terms set forth in Schedule " B or Quote " attached.\nConsultant will render invoice for services rendered net fifteen (15) business days. | f Client shall fail to pay for the services\nwithin the above time, Consultant shall be entitled to a service charge of 2 % per month on the unpaid balance. In the event\nthe unpaid account is turned over for collection, Client shall be responsible for all Consultants' costs, services charges, and\nexpenses (including reasonable attorneys' fees) associated with the collection, in addition to the unpaid balance.\nServices: Consultant agrees to perform the services listed in Schedule "A" ("Services") below, Consultant shall devote\nsuch time, attention and energies as required to complete project.\nOther Terms and Conditions: Consultant shall notify the Client promptly of any expected delay in performance of services.\nHowever, Consultant shall not be liable for delays in performance beyond its reasonable control. Consultant agrees to\nperform the service with professional care, skill, and diligence in accordance with the standards and quality usually and\ncustomarily provided by Consultant to its client's.\nThis Agreement between the parties and is intended as a complete and exclusive statement between the parties. No\nchange, modification, or transfer of this Agreement shall be valid unless the change is communicated in writing and\nsigned by both parties.\nINTENDING TO BE LEGALLY BOUND, the parties hereto have caused this Agreement to be executed as of the date first above written.\fPO Box 588 Meridian, Tx. 76665 | PHONE: 903-378-2423 | donna@nutragenecs.com\nNutraGenecs I TechniChef\nPayment\n(@) The Consultant will submit to the Client an invoice for Services performed and expenses incurred. The standard invoice\nterms shall be net upon receipt - 15 days after issuance, unless other arrangements have been made. Invoices will be\nsent through PayPal by email. Invoices can be paid via PayPal or by company check mailed. Invoices unpaid after 8\nweeks from issuance shall accrue interest at the rate of 2% per month, from the date of issuance to the date payment is\nreceived\nIf Client Identifies any discrepancy, or dispute on a Consultant Invoice, the Client shall promptly notify Consultant of\n(b\nany disputed amounts and the parties will use their best efforts to resolve the dispute as promptly as possible\n~—~\n(c) Consultant shall be responsible for payment of all taxes (federal, state, and local) that may be due upon its compensation\n~—\nClient shall deposit with Consultant a retainer to secure payment for Services rendered by Consultant. In the event that\nany amount due to Consultant is not paid when due, then Consultant may deduct any such amount from the retainer and\nrequire that the retainer be restored before any further work for Client is done. Client may apply the retainer or portion\nthereof against amounts owed under the final invoice issued by Consultant, and the balance of the retainer, if any, shall\nbe returned to the Client. In the event that all amounts due to Consultant are paid then the full amount of the deposit shalll\nbe refunded to the Client upon the expiration or termination of this Agreement\nd\n~\n(e) Consultant shall not be required to perform any work for Client when any amount due by the Client shall be in default.\nThis agreement for consulting services is approved by the signing of the client and consultant:\nNutraGenecs | TechniChef\nsignature: /s/ Donna P. Henry\nDate: 2.27.2018\n(Consultant)\nRocky Mountain High Brands, Inc. | by Michael Welch, President & CEO\nsignature: /s/ Michael Welch\nDate: 3.1.2018\n(Client)\nPO Box 588 Meridian, Tx. 76665 PHONE: 903-378-2423 donna@nutragenecs.com\n2\nNutraGenecs | TechniChef CONSULTING AGREEMENT\nSchedule " A" : Agreement and Non-Disclosure\nThis agreement for consulting services is between NutraGenecs (Consultant), RHHB (Client) Services Client hereby agrees to utilize the Consultant to perform the following consulting services: L\nProvide technical formulation expertise In the development or restructuring formulas to achieve particular\nattributes as requested. Information provided upon completion of project Includes: products / ingredients /\nprocesses Including formulation adjustments and/ or processes using Industrial Ingredients containing\nvendoringredient, processing information if apfillcable, other development as requested. RHHB retains all\nrights to all information developed/adjusted through this agreement.\nSee reduced rates on Quote attached, or normal rates on Page 3 of document. Retainer to begin project is $1000\nand will be deducted from the final invoice. The invoice will be emailed bl-weekly through PayPal. Should a\ncredit be Involved it will be paid with the final Invoice. In this working partnership we will be working on\neroducts over a longer term, so the lab rates will be reduced to the rates per hour in the Quote provided.\nutraGenecs will be responsible for the taxes on the Income.\nNon-Disclosure Agreement\n(Transfer Of Proprietary Information, Non-Disclosure And Confidentiality Agreement ) In its sole discretion, the Disclosing Party will provide to the Receiving Party certain confidential and proprietary information for the purpose of allowing the Receiving Party to evaluate its interest in accordance with the following terms and conditions: The parties agree as follows: 1. "Confidential Information” shall mean all strategic & development plans, financial condition, business plans, co-developer\nidentities, data, business records, customer lists, project records,market reports, employee lists and business manuals,\npolicies and procedures, information processes,technologies or other Information disclosed by Disclosing Party or which the\nReceiving Party may have provided or has generated in accordance with this Agreement, and is not generally available to\nthe public.\nNondisclosure Obligations. Receiving Party promises and agrees to receive and hold the Confidential Information in\nconfidence.\nA. To protect and safeguard the Confidential Information against unauthorized use, publication or disclosure; not to\nuse any of the Confidential Information except for the Business Purposes.\nB. Not to, directly or indirectly, in any way, reveal. report, publish, disclose. transfer or otherwise use any of\nthe Confidential Information except as authorized by Disclosing Party in accordance with this agreement.\nRestrictions. The restrictions herein provided shall not apply with respect to "Confidential Information” which:\nA. Is known by the Receiving Party at the time of receipt; or becomes a part of the public domain without breach of\nthis Agreement, or is legitimately obtained by the Receiving Party without a commitment of confidentiality from a\nthird party. Or is disclosed pursuant to judicial action or government regulations.\n11. Remedies . Receiving Party understands that any disclosure or misappropriation of any of the Confidential Information in violation of this Agreement may cause Disclosing Party irreparable harm. This Agreement shall be governed with the laws\nof the State of Texas.\nTerm and Termination. This Agreement shall commence on the signed document date. Receiving Party's right to use the\nConfidential Information for Business Purposes shall continue in effect for the length of the project until Disclosing Party\nprovides a written notice of termination of such right, whichever is first. This agreement may not be modified except In writing\nsigned by each of the parties to the agreement.\nThis Non Disclosure supplements but does not replace the NDA agreement previously signed by the parties.\nPO Box 588 | Meridian, Tx.. 76665 I PHONE: 903-378-2423 | donna@nutragenecs.com | 3\nCONSULTING AGREEMENT Schedule " B": Consultant Compensation The Consultant will provide the services to the Client as detailed in Schedule "A". Retainer amount $1000 prepayment will be applied to final invoice amount or total (see paragraph under description of services) Expense amount $ _actual Incurred expenses/ or company will pre-arrange travel, accommodatiors, etc. If applicable. The Client hires Consultant to do the work required and agrees to the following payment schedule: The Consultant will perform the work for the Client, at the rate of _schedule B or Quote_ and for a total amount not to exceed the company-defined amount. The Consultant agrees not to surpass the maximum stated amount, except as provided that the Client and the Consultant mutually agree to modify the stated amount.\nClient Changes:\nExpenses\nIn the even t that Client changes, alters, or modifies any materials, documents or other work product prepared by Consultant , Consultant shall not be responsible or liable for the consequences on the part of the Client The Client shall reimburse Consultant for all reasonable and necessary expenses, incurred in connection with the performance of the Services, such as travel, lodging, food or other expenses Incurred. All local travel (car) expenses will be reimbursed to Consultant at the rate of $0.9 per mile or current FDA rate. All travel time Incurred by Consultant will be reimbursed at of the hourly rate of $40 All other reimbursable expenses In excess of $_ $200_ will be subject to pre- approval, in writing via FAX or other method of transmission, by Client.\nThe following are the applicable Consultant rates and prices,unless an a greed upon rate for the entire project has be prearranged. ACTIVITY\nInitial Consulting (phone or local visit/ or lunch meeting)\nOn-site Consulting (visits, inspections, audits, process scale-up) (8 hours\nor less)\nQuality System / Audit Development (varies per situation complexity)\nWriting & research (development, formulations, specifications, msds)\nProduct Development (laboratory, benchtop, equipment, analysis, etc.)\nlabeling/ Ingredient Dec. (USDA/FDA/Retail/Industrial/FoodService)\nFood Law/ Nutritional Label (raw material system addition per ingred.\nextra)\nFood Law/ Export documentation (ingredient statements USDA or FDA,\nsanitary, per shipment natural, conformance.)\nGeneral Computer usage/ phone time (samples, etc.)\nSensory Analysis (consumer varied site testing,120 people, analysis &\nreports)\nOther Sensory dependent upon type of testing and location.\nOut of pocket expenses (Supplies and outside Analytical Services)\nPO Box 588 | Meridian, Tx.. 76665 I PHONE: 903-378-2423 | donna@nutragenecs.com | 4\nRATE\nNo Charge\nper day(plus travel & miles)\nnegotiable\nper hour\nper hour\nper label\nper label (10 ing & less)\nper shipment\nper hour\nper daily testing event\nactual\nFEE\nMileage if applicable\n$600\n \nNegotiable\n$80\n$85\n$100-$300\n$300\nProduct dependent\n$60\n$10,000\nActual	EX-10.32 ex10_32.htm\nNutraGenecs I TechniChef NutraGenecs\nConsulting Agreement & Non-Disclosure\nAgreement made this day of March 1, 2018 by and between:\nNutraGenecs / Donna P. Henry\nPO Box 588 or 579 FM 2840, Meridian Tx 76665\nph: 903-378-2423\n(Consultant)\nRocky Mountain High Brands, Inc. / contact: Michael Welch\n9101 LBJ Freeway, Suite 200, Dallas, TX 75243\nph: 972-833-1588\n(Client)\nConsultant is an independent contractor willing to provide certain skills and abilities that the Client has needs. In consideration\nof the mutua terms, conditions set forth, Client and Consultant agree as follows:\n1. Independent Contractor: The Client hereby employs the Consultant as an independent contractor, and the Consultant\nhereby accepts contract. The Consultant shall perform the Services on a "best efforts" basis. The Consultant may engage\nin other business activities. Consultant is an independent contractor and nothing contained in this Agreement shall be\ndeemed or interpreted to constitute the Consultant as a partner, agent or an employee of the Client, nor shall either party\nhave any authority to bind the other.\n2. Effective Date: The term of this Agreement shall commence as above. After the first thirty (30) days of the m,either party\nmay, without cause, terminate this Agreement by giving twenty (20) business days written notice to the other, and\nConsultant shall return funds representing the unused portion of any prepayment within thirty (30) working days.\n3. Compensation: Client shall pay to Consultant in accordance with the terms set forth in Schedule B or Quote attached.\nConsultant will render invoice for services rendered net fifteen (15) business days. I f Client shall fail to pay for the services\nwithin the above time, Consultant shall be entitled to a service charge of 2 % per month on the unpaid balance. In the event\nthe unpaid account is turned over for collection, Client shall be responsible for all Consultants' costs, services charges, and\nexpenses (including reasonable attorneys' fees) associated with the collection, in addition to the unpaid balance.\n4. Services: Consultant agrees to perform the services listed in Schedule "A" ("Services") below, Consultant shall devote\nsuch time, attention and energies as required to complete project.\n5.\nOther Terms and Conditions: Consultant shall notify the Client promptly of any expected delay in performance of services.\nHowever, Consultant shall not be liable for delays in performance beyond its reasonable control. Consultant agrees to\nperform the service with professional care, skill, and diligence in accordance with the standards and quality usually and\ncustomarily provided by Consultant to its client's.\n6.\nThis Agreement between the parties and is intended as a complete and exclusive statement between the parties. No\nchange, modification, or transfer of this Agreement shal be valid unless the change is communicated in writing and\nsigned by both parties.\nINTENDING TO BE LEGALLY BOUND, the parties hereto have caused this Agreement to be executed as of the date first above written.\nPO Box 588 Meridian, Tx. 76665 I PHONE: 903-378-2423 I donna@nutragenecs.com\nNutraGenecs I TechniChef\nPayment\n(a) The Consultant will submit to the Client an invoice for Services performed and expenses incurred. The standard invoice\nterms shall be net upon receipt - 15 days after issuance, unless other arrangements have been made. Invoices will be\nsent through PayPal by email Invoices can be paid via PayPal or by company check mailed. Invoices unpaid after 8\nweeks from issuance shall accrue interest at the rate of 2% per month, from the date of issuance to the date payment\nis\nreceived\n(b) If Client Identifies any discrepancy, or dispute on a Consultant Invoice, the Client shall promptly notify Consultant of\nany disputed amounts and the parties will use their best efforts to resolve the dispute as promptly as possible\n(c) Consultant shall be responsible for payment of all taxes (federal, state, and local) that may be due upon its compensation\n(d) Client shall deposit with Consultant a retainer to secure payment for Services rendered by Consultant. In the event that\nany amount due to Consultant is not paid when due, then Consultant may deduct any such amount from the retainer and\nrequire that the retainer be restored before any further work for Client is done. Client may apply the retainer or portion\nthereof against amounts owed under the final invoice issued by Consultant, and the balance of the retainer, if any, shall\nbe returned to the Client. In the event that all amounts due to Consultant are paid then the full amount of the deposit shal\nbe refunded to the Client upon the expiration or termination of this Agreement\n(e) Consultant shall not be required to perform any work for Client when any amount due by the Client shall be in default.\nThis agreement for consulting services is approved by the signing of the client and consultant:\nNutraGenecs / TechniChef\nsignature: Is/ Donna P. Henry.\nDate: 2.27.2018\n(Consultant)\nRocky Mountain High Brands, Inc. / by Michael Welch, President & CEO\nsignature: Is/ Michael Welch\nDate: 3.1.2018\n(Client)\nPO Box 588 Meridian, Tx. 76665 PHONE: 903-378-2423 donna@nutragenecs.com\n2\nNutraGenecs TechniChef\nCONSULTING AGREEMENT\nSchedule A" Agreement and Non-Disclosure\nThis agreement for consulting services is between NutraGenecs (Consultant), RHHB (Client)\nServices Client hereby agrees to utilize the Consultant to perform the following consulting services:\n1.\nProvide technical formulation expertise In the development or restructuring formulas to achieve particular\nattributes as requested. Information provided upon completion of project Includes: products / ingredients /\nprocesses vendor,ingredient, Including processing formulation information adjustments if applicable, and or processes other development using Industrial as requested. Ingredients RHHB containing retains all\nrights to all information developedladjusted through this agreement.\n2. See reduced rates on Quote attached, or norma rates on page 3 of document. Retainer to begin project is $1000\nand will be deducted from the final invoice. The invoice will be emailed bl-weekly through PayPal. Should a\ncredit be Involved it will be paid with the final Invoice. In this working partnership we will be working on\nproducts over a longer term, so the lab rates will be reduced to the rates per hour in the Quote provided.\nNutraGenecs will be responsible for the taxes on the Income.\nNon-Disclosure Agreement\n(Transfer Of Proprietary Information, Non-Disclosure And Confidentiality Agreement\nIn its sole discretion, the Disclosing Party will provide to the Receiving Party certain confidential and proprietary information for the purpose of\nallowing the Receiving Party to evaluate its interest in accordance with the following terms and conditions: parties agree as follows:\n1. "Confidentia Information" shall mean all strategic & development plans, financial condition, business plans, co-developer\nidentities, data, business records, customer lists, project records,ma reports, employee lists and business manuals,\npolicies\nand\nprocedures,\ninformation\nprocesses,technologies\nor\nother\nInformation\ndisclosed\nby\nDisclosing\nParty\nor\nwhich\nthe\nReceiving\nParty may have provided or has generated in accordance with this Agreement, and is not generally available to\nthe public.\n2\nNondisclosure Obligations. Receiving Party promises and agrees to receive and hold the Confidential Information in\nconfidence.\nA. To protect and safeguard the Confidential Information against unauthorized use, publication or disclosure; not to\nuse any of the Confidentia Information except for the Business Purposes.\nB. Not to, directly or indirectly, in any way, reveal. report, publish, disclose. transfer or otherwise use any of\nthe Confidential Information except as authorized by Disclosing Party in accordance with this agreement.\n3.\nRestrictions. The restrictions herein provided shal not apply with respect to "Confidential Information" which:\nA. Is known by the Receiving Party at the time of receipt; or becomes a part of the public domain without breach of\nthis Agreement, or is legitimately obtained by the Receiving Party without a commitment of confidentiality from a\nthird party. Or is disclosed pursuant to judicia action or government regulations.\n11.\nRemedies\nReceiving\nParty\nunderstands\nthat\nany\ndisclosure\nor\nmisappropriation\nof\nany\nof\nthe\nConfidential\nInformation\nin\nviolation of this Agreement may cause Disclosing Party irreparable harm. This Agreement shall be governed with the laws\nof the State of Texas.\n5.\nTerm and Termination This Agreement shall commence on the signed document date. Receiving Party's right to use the\nConfidential Information for Business Purposes shall continue in effect for the length of the project until Disclosing Party\nprovides a written notice of termination of such right, whichever is first. This agreement may not be modified except In writing\nsigned by each of the parties to the agreement.\nThis Non Disclosure supplements but does not replace the NDA agreement previously signed by the parties.\nPO Box 588 I Meridian, Tx.. 76665 I PHONE: 903-378-2423 I donna@nutragenecs.com\n3\nCONSULTING AGREMENT\nSchedule B": Consultant Compensation\nThe Consultant will provide the services to the Client as detailed in Schedule "A".\nRetainer amount $1000 prepayment will be applied to final invoice amount or total (see paragraph under description of services)\nExpense amount actual Incurred expenses/ or company will pre-arrange travel, accommodations, etc. If applicable.\nThe Client hires Consultant to do the work required and agrees to the following payment schedule:\nThe Consultant will perform the work for the Client, at the rate of schedule B or Quote_an for a total amount not to exceed the\ncompany-defined amount. The Consultant agrees not to surpass the maximum stated amount, except as provided that the Client\nand the Consultant mutually agree to modify the stated amount.\nClient Changes:\nExpenses\nIn the even t that Client changes, alters, or modifies any materials, documents or other work product prepared by Consultant\nConsultant shall not be responsible or liable for the consequences on the part of the Client\nThe Client shall reimburse Consultant for all reasonable and necessary expenses, incurred in connection with the performance\nof the Services, such as travel lodging, food or other expenses Incurred. All local travel (car) expenses will be reimbursed to\nConsultant at the rate of $0.50 per mile or current FDA rate. All travel time Incurred by Consultant will be reimbursed at of the\nhourly rate of $40 All other reimbursable expenses In excess of $_$200_wil wil be subject to pre- approval, in writing via FAX or\nother method of transmission, by Client.\nThe following are the applicable Consultant rates and prices,unless an a greed upon rate for the entire project has be prearranged.\nACTIVITY\nRATE\nFEE\nInitial Consulting (phone or local visit/ or lunch meeting)\nNo Charge\nMileage if applicable\nOn-site Consulting (visits, inspections, audits, process scale-up) (8 hours per day(plus travel & miles)\n$600\nor less)\nQuality System Audit Development (varies per situation complexity)\nnegotiable\nNegotiable\nWriting & research (development, formulations, specifications, msds)\nper hour\n$80\nProduct Development (laboratory, benchtop, equipment, analysis, etc.)\nper hour\n$85\nlabeling/ Ingredient Dec. (USDA/FDA/Retail/Industrial/FoodService)\nper label\n$100-$300\nFood Law/ Nutritional Label (raw material system addition per ingred.\nper label (10 ing & less)\n$300\nextra)\nFood Law/ Export documentation (ingredient statements USDA or FDA,\nper shipment\nProduct dependent\nsanitary, per shipment natural, conformance.)\nGeneral Computer usage/ phone time (samples, etc.)\nper hour\n$60\nSensory Analysis (consumer varied site testing, 120 people, analysis &\nper daily testing event\n$10,000\nreports)\nOther Sensory dependent upon type of testing and location.\nOut of pocket expenses (Supplies and outside Analytical Services)\nactual\nActual\nPO Box 588 Meridian, Tx.. 76665 I PHONE: 903-378-2423 donna@nutragenecs.com\n4	EX-10.32 7 ex10_32.htm\nNutraGenecs I TechniChef NutraGenecs\nConsulting Agreement & Non-Disclosure\nAgreement made this day of March 1, 2018 , by and between:\nNutraGenecs / Donna P. Henry\nPO Box 588 or 579 FM 2840, M eridian, Tx. 76665\nph: 903-378-2423\n(Consultant)\nRocky Mountain High Brands, Inc. / contact: Michael Welch\n9101 LBJ Freeway, Suite 200, Dallas, TX 75243\nph: 972-833-1588\n(Client)\nConsultant is an independent contractor willing to provide certain skills and abilities that the Client has needs. In consideration\nof the mutual terms, conditions set forth, Client and Consultant agree as follows:\n1. Independent Contractor: The Client hereby employs the Consultant as an independent contractor, and the Consultant\nhereby accepts contract. The Consultant shall perform the Services on a "best efforts" basis. The Consultant may engage\nin other business activities. Consultant is an independent contractor and nothing contained in this Agreement shall be\ndeemed or interpreted to constitute the Consultant as a partner, agent or an employee of the Client, nor shall either party\nhave any authority to bind the other.\n2. Effective Date: The term of this Agreement shall commence as above. After the first thirty (30) days of the term,either party\nmay, without cause, terminate this Agreement by giving twenty (20) business days written notice to the other, and\nConsultant shall return funds representing the unused portion of any prepayment within thirty (30) working days.\n3. Compensation: Client shall pay to Consultant in accordance with the terms set forth in Schedule " B or Quote " attached.\nConsultant will render invoice for services rendered net fifteen (15) business days. I f Client shall fail to pay for the services\nwithin the above time, Consultant shall be entitled to a service charge of 2 % per month on the unpaid balance. In the event\nthe unpaid account is turned over for collection, Client shall be responsible for all Consultants' costs, services charges, and\nexpenses (including reasonable attorneys' fees) associated with the collection, in addition to the unpaid balance.\n4. Services: Consultant agrees to perform the services listed in Schedule ''A" ("Services") below, Consultant shall devote\nsuch time, attention and energies as required to complete project.\n5. Other Terms and Conditions: Consultant shall notify the Client promptly of any expected delay in performance of services.\nHowever, Consultant shall not be liable for delays in performance beyond its reasonable control. Consultant agrees to\nperform the service with professional care, skill, and diligence in accordance with the standards and quality usually and\ncustomarily provided by Consultant to its client's.\n6. This Agreement between the parties and is intended as a complete and exclusive statement between the parties. No\nchange, modification, or transfer of this Agreement shall be valid unless the change is communicated in writing and\nsigned by both parties.\nINTENDING TO BE LEGALLY BOUND, the parties hereto have caused this Agreement to be executed as of the date first above written.\nPO Box 588 Meridian, Tx. 76665 I PHONE: 903-378 -2423 I donna@nutragenecs.com\nNutraGenecs I TechniChef\nPayment\n(a) The Consultant will submit to the Client an invoice for Services performed and expenses incurred. The standard invoice\nterms shall be net upon receipt - 15 days after issuance, unless other arrangements have been made. Invoices will be\nsent through PayPal by email. Invoices can be paid via PayPal or by company check mailed. Invoices unpaid after 8\nweeks from issuance shall accrue interest at the rate of 2% per month, from the date of issuance to the date payment is\nreceived\n(b) If Client Identifies any discrepancy, or dispute on a Consultant Invoice, the Client shall promptly notify Consultant of\nany disputed amounts and the parties will use their best efforts to resolve the dispute as promptly as possible\n(c) Consultant shall be responsible for payment of all taxes (federal, state, and local) that may be due upon its compensation\n(d) Client shall deposit with Consultant a retainer to secure payment for Services rendered by Consultant. In the event that\nany amount due to Consultant is not paid when due, then Consultant may deduct any such amount from the retainer and\nrequire that the retainer be restored before any further work for Client is done. Client may apply the retainer or portion\nthereof against amounts owed under the final invoice issued by Consultant, and the balance of the retainer, if any, shall\nbe returned to the Client. In the event that all amounts due to Consultant are paid then the full amount of the deposit shall\nbe refunded to the Client upon the expiration or termination of this Agreement\n(e) Consultant shall not be required to perform any work for Client when any amount due by the Client shall be in default.\nThis agreement for consulting services is approved by the signing of the client and consultant:\nNutraGenecs / TechniChef\nsignature: /s/ Donna P. Henry\nDate: 2.27.2018\n(Consultant)\nRocky Mountain High Brands, Inc. / by Michael Welch, President & CEO\nsignature: /s/ Michael Welch\nDate: 3.1.2018\n(Client)\nPO Box 588 Meridian, Tx. 76665 PHONE: 903-378-2423 donna@nutragenecs.com\n2\nNutraGenecs I TechniChef\nCONSULTING AGREEMENT\nSchedule " A" : Agreement and Non-Disclosure\nThis agreement for consulting services is between NutraGenecs (Consultant), RHHB (Client)\nServices Client hereby agrees to utilize the Consultant to perform the following consulting services:\nl. Provide technical formulation expertise In the development or restructuring formulas to achieve particular\nattributes as requested. Information provided upon completion of project Includes: products / ingredients /\nprocesses Including formul ation adjustments and/ or processes using Industrial Ingredients containing\nvendor,Ingredient, processing information if applicable, other development as requested. RHHB retains all\nrights to all information developed/adjusted through this agreement.\n2. See reduced rates on Quote attached, or normal rates on page 3 of document. Retainer to begin project is $1000\nand wilI be deducted from the final invoice. The invoice will be emailed bl-weekly through PayPal. Should a\ncredit be Involved it will be paid with the final Invoice. In this working partnership we will be working on\nproducts over a longer term, so the lab rates will be reduced to the rates per hour in the Quote provided.\nNutraGenecs will be responsible for the taxes on the Income.\nNon-Disclosure Agreement\n(Transfer Of Proprietary Information, Non-Disclosure And Confidentiality Agreement )\nIn its sole discretion, the Disclosing Party will provide to the Receiving Party certain confidential and proprietary information for the purpose of\nallowing the Receiving Party to evaluate its interest in accordance with the following terms and conditions: The parties agree as follows:\n1.\n"Confidential Information" shall mean all strategic & development plans, financial condition, business plans, co-developer\nidentities, data, business records, customer lists, project records,market reports, employee lists and business manuals,\npolicies and procedures, information processes,technologies or other Information disclosed by Disclosing Party or which the\nReceiving Party may have provided or has generated in accordance with this Agreement, and is not generally available to\nthe public.\n2 Nondisclosure Obligations. Receiving Party promises and agrees to receive and hold the Confidential Information in\nconfidence.\nA. To protect and safeguard the Confidential Information against unauthorized use, publication or disclosure; not to\nuse any of the Confidential Information except for the Business Purposes.\nB. Not to, directly or indirectly, in any way, reveal. report, publish, disclose. transfer or otherwise use any of\nthe Confidential Information except as authorized by Disclosing Party in accordance with this agreement.\n3. Restrictions. The restrictions herein provided shall not apply with respect to "Confidential Information" which:\nA. Is known by the Receiving Party at the time of receipt; or becomes a part of the public domain without breach of\nthis Agreement, or is legitimately obtained by the Receiving Party without a commitment of confidentiality from a\nthird party. Or is disclosed pursuant to judicial action or government regulations.\n11. Remedies . Receiving Party understands that any disclosure or misappropriation of any of the Confidential Information in\nviolation of this Agreement may cause Disclosing Party irreparable harm. This Agreement shall be governed with the laws\nof the State of Texas.\n5. Term and Termination. This Agreement shall commence on the signed document date. Receiving Party's right to use the\nConfidential Information for Business Purposes shall continue in effect for the length of the project until Disclosing Party\nprovides a written notice of termination of such right, whichever is first. This agreement may not be modified except In writing\nsigned by each of the parties to the agreement.\nThis Non Disclosure supplements but does not replace the NDA agreement previously signed by the parties.\nPO Box 588 I Meridian, Tx.. 76665 I PHONE: 903-378 -2423 I donna@nutragenecs.com I\n3\nCONSULTING AGREEMENT\nSchedule " B": Consultant Compensation\nThe Consultant will provide the services to the Client as detailed in Schedule "A".\nRetainer amount $1000 prepayment will be applied to final invoice amount or total (see paragraph under description of services)\nExpense amount $ _actual Incurred expenses/ or company will pre-arrange travel, accommodations, etc. If applicable.\nThe Client hires Consultant to do the work required and agrees to the following payment schedule:\nThe Consultant will perform the work for the Client, at the rate of _schedule B or Quote_ and for a total amount not to exceed the\ncompany-defined amount. The Consultant agrees not to surpass the maximum stated amount, except as provided that the Client\nand the Consultant mutually agree to modify the stated amount.\nClient Changes:\nExpenses\nIn the even t that Client changes, alters, or modifies any materials, documents or other work product prepared by Consultant ,\nConsultant shall not be responsible or liable for the consequences on the part of the Client\nThe Client shall reimburse Consultant for all reasonable and necessary expenses, incurred in connection with the performance\nof the Services, such as travel, lodging, food or other expenses Incurred. All local travel (car) expenses will be reimbursed to\nConsultant at the rate of $0.50 per mile or current FDA rate. All travel time Incurred by Consultant will be reimbursed at of the\nhourly rate of $40 All other reimbursable expenses In excess of $_ $200_ will be subject to pre- approval, in writing via FAX or\nother method of transmission, by Client.\nThe following are the applicable Consultant rates and prices,unless an a greed upon rate for the entire project has be prearranged.\nACTIVITY\nRATE\nFEE\nInitial Consulting (phone or local visit/ or lunch meeting)\nNo Charge\nMileage if applicable\nOn-site Consulting (visits, inspections, audits, process scale-up) (8 hours\nor less)\nper day(plus travel & miles)\n$600\nQuality System / Audit Development (varies per situation complexity)\nnegotiable\nNegotiable\nWriting & research (development, formulations, specifications, msds)\nper hour\n$80\nProduct Development (laboratory, benchtop, equipment, analysis, etc.) per hour\n$85\nlabeling/ Ingredient Dec. (USDA/FDA/Retail/Industrial/FoodService)\nper label\n$100-$300\nFood Law/ Nutritional Label (raw material system addition per ingred.\nextra)\nper label (10 ing & less)\n$300\nFood Law/ Export documentation (ingredient statements USDA or FDA,\nsanitary, per shipment natural, conformance.)\nper shipment\nProduct dependent\nGeneral Computer usage/ phone time (samples, etc.)\nper hour\n$60\nSensory Analysis (consumer varied site testing,120 people, analysis &\nreports)\nper daily testing event\n$10,000\nOther Sensory dependent upon type of testing and location.\nOut of pocket expenses (Supplies and outside Analytical Services)\nactual\nActual\nPO Box 588 I Meridian, Tx.. 76665 I PHONE: 903-378 -2423 I donna@nutragenecs.com I\n4
+52d3c9b09ffbc43fc821425077524836.pdf	effective_date jurisdiction party term	Exhibit A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “Agreement”) is made as of this day of\n, 2017 by and between resTORbio, Inc., a\nDelaware corporation (hereinafter referred to collectively with its Affiliates as the “Company”), and Chen Schor (the “Employee”).\nThe Company desires to employ the Employee to provide services to the Company. In consideration of the employment or the continued\nemployment of the Employee by the Company, the Company and the Employee agree as follows:\n1. Condition of Employment.\nThe Employee acknowledges that Employee’s employment and/or the continuance of that employment with the Company is\ncontingent upon Employee’s agreement to become a party to and adhere to the provisions of this Agreement. The Employee further\nacknowledges that the nature of the Company’s business is such that protection of its proprietary and confidential information and the proprietary\nand confidential information of its Affiliates is critical to the survival and success of the Company’s business.\n2. Proprietary and Confidential Information.\na. The Employee agrees that all information and know-how, whether or not in writing, of a private, secret or confidential nature\nconcerning the Company’s or any Affiliate’s business or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive\nproperty of the Company (or any person or entity designated by the Company). By way of illustration, but not limitation, Proprietary Information\nmay include discoveries, ideas, inventions, products, product improvements, product enhancements, processes, methods, techniques, formulas,\ncompositions, compounds, negotiation strategies and positions, projects, developments, plans (including business and marketing plans), research\ndata, clinical data, financial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used\npursuant to a license agreement), computer software code, computer games, customer, prospect and supplier lists, and contacts at or knowledge\nof customers or prospective customers of the Company or any Affiliate, and the names of, contact information of, and any other data concerning,\nexisting and prospective Affiliates and existing and prospective investors of such Affiliates. The Employee shall not disclose any Proprietary\nInformation to any person or entity other than employees of the Company or use the same for any purposes (other than in the performance of\nEmployee’s duties as an employee of the Company) without written approval by an officer of the Company, either during or after Employee’s\nemployment with the Company. The Employee shall use the Employee’s best efforts to prevent unauthorized publication or disclosure of any of\nthe Company’s Proprietary Information.\nb. The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models, laboratory\nnotebooks, program listings, computer equipment or devices, computer programs or other written, photographic, or other tangible or intangible\nmaterial containing Proprietary Information, whether created by the Employee or others, which shall come into Employee’s custody or\npossession, shall be and are the exclusive property of the Company to be used by the Employee only in the performance of Employee’s duties for\nthe Company and shall not be copied or removed from the Company premises except in the pursuit of the business of the Company. All such\nmaterials or copies thereof and all tangible property of the Company in the custody or possession of the Employee shall be delivered to the\nCompany, upon the earlier of (i) a request by the Company or (ii) termination of Employee’s employment for any reason. After such delivery, the\nEmployee shall not retain any such materials or copies thereof or any such tangible property.\nc. The Employee agrees that Employee’s obligation not to disclose or to use information and materials of the types set forth in\nparagraphs 2(a) and 2(b) above, and Employee’s obligation to return materials and tangible property, set forth in paragraph 2(b) above, also\nextends to such types of information, materials and tangible property of Affiliates, customers of the Company or suppliers to the Company or\nother third parties who may have disclosed or entrusted the same to the Company or to the Employee in the course of the Company’s business.\n3. Scope of Disclosure Restrictions.\nNothing in this Agreement or elsewhere prohibits the Employee from reporting possible violations of state or federal law or regulation to\nany government agency, regulator, or legal authority, or making other disclosures that are protected under the whistleblower provisions of state or\nfederal law or regulation. The Employee is not required to notify the Company that the Employee has made any such reports or disclosures;\nprovided, however, that nothing herein authorizes the disclosure of information the Employee obtained through a communication that was\nsubject to the attorney-client privilege, unless disclosure of the information would otherwise be permitted by an applicable law or rule. Further,\npursuant to the Defend Trade Secrets Act: “An individual shall not be held criminally or civilly liable under any Federal or State trade secret law\nfor the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly,\nor to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other\ndocument filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer\nfor reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the\ncourt proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except\npursuant to court order.”\n4. Non-Disparagement.\nThe Employee shall not, either during Employee’s employment with the Company or thereafter, make or encourage others to make any\nstatement or release any information that is intended to, or reasonably could be foreseen to, disparage, defame or embarrass the Company or any\nof its Affiliates or their respective employees, officers, directors, partners, members or stockholders.\n5. Miscellaneous.\na. Equitable Remedies. The Employee acknowledges that the restrictions contained in this Agreement are necessary for the protection\nof the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that\nany breach or threatened breach of this Agreement is likely to cause the Company substantial and irrevocable damage which is difficult to\nmeasure. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to such other\nremedies which may be available, shall have the right to obtain an injunction from a court restraining such a breach or threatened breach without\nposting bond and the right to specific performance of the provisions of this Agreement and the Employee hereby waives the adequacy of a\nremedy at law as a defense to such relief.\nb. Disclosure of this Agreement. The Employee hereby authorizes the Company to notify others, including but not limited to the\nAffiliates and any of the Employee’s future employers or prospective business associates, of the terms and existence of this Agreement and the\nEmployee’s continuing obligations to the Company hereunder.\nc. Not Employment Contract. The Employee acknowledges that this Agreement does not constitute a contract of employment, does\nnot imply that the Company will continue Employee’s employment for any period of time and does not change the at-will nature of Employee’s\nemployment.\nd. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective\nsuccessors and assigns, including any corporation with which, or into which, the Company may be merged or which may succeed to the\nCompany’s assets or business, provided, however, that the obligations of the Employee are personal and shall not be assigned by Employee. The\nEmployee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any Affiliate thereof to whose\nemploy the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such transfer.\ne. Severability. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and\nenforceability of the remaining provisions shall in no way be affected or impaired thereby.\nf. Waivers. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nother right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to\nor waiver of any right on any other occasion.\ng. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of\nMassachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to\nresolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the Commonwealth of\nMassachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each consents to the\njurisdiction of such a court. The Company and the Employee each hereby irrevocably waive any right to a trial by jury in any action, suit or other\nlegal proceeding arising under or relating to any provision of this Agreement.\nh. Entire Agreement; Amendment. This Agreement supersedes all prior agreements, written or oral, between the Employee and the\nCompany relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part,\nexcept by an agreement in writing signed by the Employee and the Company. The Employee agrees that any change or changes in Employee’s\nduties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\ni. Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect\nthe scope or substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS\nAND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\n[Remainder of the Page Intentionally Left Blank]\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year set forth above.\nWITNESS our hands and seals:\nRESTORBIO, INC.\nACKNOWLEDGED AND AGREED:\nBy:\nName: David Steinberg\nChen Schor\nTitle: Board Member	Exhibit A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “Agreement”) is made as of this __ day of , 2017 by and between resTORbio, Inc., a\nDelaware corporation (hereinafter referred to collectively with its Affiliates as the “Company”), and Chen Schor (the “Employee”).\n \nThe Company desires to employ the Employee to provide services to the Company. In consideration of the employment or the continued\nemployment of the Employee by the Company, the Company and the Employee agree as follows:\n1. Condition of Employment.\nThe Employee acknowledges that Employee’s employment and/or the continuance of that employment with the Company is\ncontingent upon Employee’s agreement to become a party to and adhere to the provisions of this Agreement. The Employee further\nacknowledges that the nature of the Company’s business is such that protection of its proprietary and confidential information and the proprietary\nand confidential information of its Affiliates is critical to the survival and success of the Company’s business.\n2. Proprietary and Confidential Information.\na. The Employee agrees that all information and know-how, whether or not in writing, of a private, secret or confidential nature\nconcerning the Company’s or any Affiliate’s business or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive\nproperty of the Company (or any person or entity designated by the Company). By way of illustration, but not limitation, Proprietary Information\nmay include discoveries, ideas, inventions, products, product improvements, product enhancements, processes, methods, techniques, formulas,\ncompositions, compounds, negotiation strategies and positions, projects, developments, plans (including business and marketing plans), research\ndata, clinical data, financial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used\npursuant to a license agreement), computer software code, computer games, customer, prospect and supplier lists, and contacts at or knowledge\nof customers or prospective customers of the Company or any Affiliate, and the names of, contact information of, and any other data concerning,\nexisting and prospective Affiliates and existing and prospective investors of such Affiliates. The Employee shall not disclose any Proprietary\nInformation to any person or entity other than employees of the Company or use the same for any purposes (other than in the performance of\nEmployee’s duties as an employee of the Company) without written approval by an officer of the Company, either during or after Employee’s\nemployment with the Company. The Employee shall use the Employee’s best efforts to prevent unauthorized publication or disclosure of any of\nthe Company’s Proprietary Information.\nb. The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models, laboratory\nnotebooks, program listings, computer equipment or devices, computer programs or other written, photographic, or other tangible or intangible\nmaterial containing Proprietary Information, whether created by the Employee or others, which shall come into Employee’s custody or\npossession, shall be and are the exclusive property of the Company to be used by the Employee only in the performance of Employee’s duties for\nthe Company and shall not be copied or removed from the Company premises except in the pursuit of the business of the Company. All such\nmaterials or copies thereof and all tangible property of the Company in the custody or possession of the Employee shall be delivered to the\nCompany, upon the earlier of (i) a request by the Company or (ii) termination of Employee’s employment for any reason. After such delivery, the\nEmployee shall not retain any such materials or copies thereof or any such tangible property.\nc. The Employee agrees that Employee’s obligation not to disclose or to use information and materials of the types set forth in\nparagraphs 2(a) and 2(b) above, and Employee’s obligation to return materials and tangible property, set forth in paragraph 2(b) above, also\nextends to such types of information, materials and tangible property of Affiliates, customers of the Company or suppliers to the Company or\nother third parties who may have disclosed or entrusted the same to the Company or to the Employee in the course of the Company’s business.\n3. Scope of Disclosure Restrictions.\nNothing in this Agreement or elsewhere prohibits the Employee from reporting possible violations of state or federal law or regulation to\nany government agency, regulator, or legal authority, or making other disclosures that are protected under the whistleblower provisions of state or\nfederal law or regulation. The Employee is not required to notify the Company that the Employee has made any such reports or disclosures;\nprovided, however, that nothing herein authorizes the disclosure of information the Employee obtained through a communication that was\nsubject to the attorney-client privilege, unless disclosure of the information would otherwise be permitted by an applicable law or rule. Further,\npursuant to the Defend Trade Secrets Act: “An individual shall not be held criminally or civilly liable under any Federal or State trade secret law\nfor the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly,\nor to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other\ndocument filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer\nfor reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the\ncourt proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except\npursuant to court order.”\n4. Non-Disparagement.\nThe Employee shall not, either during Employee’s employment with the Company or thereafter, make or encourage others to make any\nstatement or release any information that is intended to, or reasonably could be foreseen to, disparage, defame or embarrass the Company or any\nof its Affiliates or their respective employees, officers, directors, partners, members or stockholders.\n5. Miscellaneous.\na. Equitable Remedies. The Employee acknowledges that the restrictions contained in this Agreement are necessary for the protection\nof the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that\nany breach or threatened breach of this Agreement is likely to cause the Company substantial and irrevocable damage which is difficult to\nmeasure. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to such other\nremedies which may be available, shall have the right to obtain an injunction from a court restraining such a breach or threatened breach without\nposting bond and the right to specific performance of the provisions of this Agreement and the Employee hereby waives the adequacy of a\nremedy at law as a defense to such relief.\nb. Disclosure of this Agreement. The Employee hereby authorizes the Company to notify others, including but not limited to the\nAffiliates and any of the Employee’s future employers or prospective business associates, of the terms and existence of this Agreement and the\nEmployee’s continuing obligations to the Company hereunder.\n \nc. Not Employment Contract. The Employee acknowledges that this Agreement does not constitute a contract of employment, does\nnot imply that the Company will continue Employee’s employment for any period of time and does not change the at-will nature of Employee’s\nemployment.\nd. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective\nsuccessors and assigns, including any corporation with which, or into which, the Company may be merged or which may succeed to the\nCompany’s assets or business, provided, however, that the obligations of the Employee are personal and shall not be assigned by Employee. The\nEmployee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any Affiliate thereof to whose\nemploy the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such transfer.\ne. Severability. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and\nenforceability of the remaining provisions shall in no way be affected or impaired thereby.\nf. Waivers. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nother right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to\nor waiver of any right on any other occasion.\ng. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of\nMassachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to\nresolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the Commonwealth of\nMassachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each consents to the\njurisdiction of such a court. The Company and the Employee each hereby irrevocably waive any right to a trial by jury in any action, suit or other\nlegal proceeding arising under or relating to any provision of this Agreement.\nh. Entire Agreement; Amendment. This Agreement supersedes all prior agreements, written or oral, between the Employee and the\nCompany relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part,\nexcept by an agreement in writing signed by the Employee and the Company. The Employee agrees that any change or changes in Employee’s\nduties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\n \ni. Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect\nthe scope or substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS\nAND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\n[Remainder of the Page Intentionally Left Blank]\nIN WITNESS WHEREQF, the parties hereto have executed this Agreement as of the day and year set forth above.\nWITNESS our hands and seals:\nRESTORBIO, INC. ACKNOWLEDGED AND AGREED:\nBy:\nName: David Steinberg Chen Schor\nTitle: Board Member	Exhibit A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this "Agreement") is made as of this day of 2017 by and between resTORbio, Inc., a\nDelaware corporation (hereinafter referred to collectively with its Affiliates as the "Company."), and Chen Schor (the "Employee").\nThe Company desires to employ the Employee to provide services to the Company. In consideration of the employment or the continued\nemployment of the Employee by the Company, the Company and the Employee agree as follows:\n1. Condition of Employment.\nThe Employee acknowledges that Employee's employment and/or the continuance of that employment with the Company\nis\ncontingent upon Employee's agreement to become a party to and adhere to the provisions of this Agreement. The Employee further\nacknowledges that the nature of the Company's business is such that protection of its proprietary and confidential information and the proprietary\nand confidential information of its Affiliates is critical to the survival and success of the Company's business.\n2. Proprietary and Confidential Information.\na. The Employee agrees that all information and know-how, whether or not in writing, of a private, secret or confidential nature\nconcerning the Company's or any Affiliate's business or financial affairs (collectively, "Proprietary. Information") is and shall be the exclusive\nproperty of the Company (or any person or entity designated by the Company). By way of illustration, but not limitation, Proprietary Information\nmay include discoveries, ideas, inventions, products, product improvements, product enhancements, processes, methods, techniques, formulas,\ncompositions, compounds, negotiation strategies and positions, projects, developments, plans (including business and marketing plans), research\ndata, clinical data, financial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used\npursuant to a license agreement), computer software code, computer games, customer, prospect and supplier lists, and contacts at or knowledge\nof customers or prospective customers of the Company or any Affiliate, and the names of, contact information of, and any other data concerning,\nexisting and prospective Affiliates and existing and prospective investors of such Affiliates. The Employee shall not disclose any Proprietary\nInformation to any person or entity other than employees of the Company or use the same for any purposes (other than in the performance\nof\nEmployee's duties as an employee of the Company) without written approval by an officer of the Company, either during or after Employee's\nemployment with the Company. The Employee shall use the Employee's best efforts to prevent unauthorized publication or disclosure of any of\nthe Company's Proprietary Information.\nb. The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models, laboratory\nnotebooks, program listings, computer equipment or devices, computer programs or other written, photographic, or other tangible or intangible\nmaterial containing Proprietary Information, whether created by the Employee or others, which shall come into Employee's custody or\npossession, shall be and are the exclusive property of the Company to be used by the Employee only in the performance of Employee's duties for\nthe Company and shall not be copied or removed from the Company premises except in the pursuit of the business of the Company. All such\nmaterials or copies thereof and all tangible property of the Company in the custody or possession of the Employee shall be delivered to the\nCompany, upon the earlier of (i) a request by the Company or (ii) termination of Employee's employment for any reason. After such delivery, the\nEmployee shall not retain any such materials or copies thereof or any such tangible property.\nC. The Employee agrees that Employee's obligation not to disclose or to use information and materials of the types set forth in\nparagraphs 2(a) and 2(b) above, and Employee's obligation to return materials and tangible property, set forth in paragraph 2(b) above, also\nextends to such types of information, materials and tangible property of Affiliates, customers of the Company or suppliers to the Company or\nother third parties who may have disclosed or entrusted the same to the Company or to the Employee in the course of the Company's business.\n3. Scope of Disclosure Restrictions.\nNothing in this Agreement or elsewhere prohibits the Employee from reporting possible violations of state or federal law or regulation to\nany government agency, regulator, or legal authority, or making other disclosures that are protected under the whistleblower provisions of state\nor\nfederal law or regulation. The Employee is not required to notify the Company that the Employee has made any such reports or disclosures;\nprovided, however, that nothing herein authorizes the disclosure of information the Employee obtained through a communication that was\nsubject to the attorney-client privilege, unless disclosure of the information would otherwise be permitted by an applicable law or rule. Further,\npursuant to the Defend Trade Secrets Act: "An individual shall not be held criminally or civilly liable under any Federal or State trade secret\nlaw\nfor the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly,\nor to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other\ndocument filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer\nfor\nreporting\na\nsuspected\nviolation\nof\nlaw\nmay\ndisclose\nthe\ntrade\nsecret\nto\nthe\nattorney\nof\nthe\nindividual\nand\nuse\nthe\ntrade\nsecret\ninformation\nin\nthe\ncourt proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except\npursuant to court order."\n4. Non-Disparagement.\nThe Employee shall not, either during Employee's employment with the Company or thereafter, make or encourage others to make any\nstatement or release any information that is intended to, or reasonably could be foreseen to, disparage, defame or embarrass the Company or any\nof its Affiliates or their respective employees, officers, directors, partners, members or stockholders.\n5. Miscellaneous.\na. Equitable Remedies. The Employee acknowledges that the restrictions contained in this Agreement are necessary for the protection\nof the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that\nany breach or threatened breach of this Agreement is likely to cause the Company substantial and irrevocable damage which is difficult to\nmeasure. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to such other\nremedies which may be available, shall have the right to obtain an injunction from a court restraining such a breach or threatened breach without\nposting bond and the right to specific performance of the provisions of this Agreement and the Employee hereby waives the adequacy of a\nremedy at law as a defense to such relief.\nb. Disclosure of this Agreement. The Employee hereby authorizes the Company to notify others, including but not limited to the\nAffiliates and any of the Employee's future employers or prospective business associates, of the terms and existence of this Agreement and the\nEmployee's continuing obligations to the Company hereunder.\nC. Not Employment Contract. The Employee acknowledges that this Agreement does not constitute a contract of employment, does\nnot imply that the Company will continue Employee's employment for any period of time and does not change the at-will nature of Employee's\nemployment.\nd. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective\nsuccessors and assigns, including any corporation with which, or into which, the Company may be merged or which may succeed to the\nCompany's Employee expressly assets or consents business, to provided, be bound however, by the provisions that the obligations of this Agreement of the Employee for the benefit are personal of the Company and shall not or any be assigned Affiliate by thereof Employee. to whose The\nemploy the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such transfer.\ne. Severability.. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and\nenforceability of the remaining provisions shall in no way be affected or impaired thereby.\nf. Waivers. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nother right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to\nor waiver of any right on any other occasion.\ng. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of\nMassachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to\nresolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the Commonwealth of\nMassachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each consents to the\njurisdiction of such a court. The Company and the Employee each hereby irrevocably waive any right to a trial by jury in any action, suit or other\nlegal proceeding arising under or relating to any provision of this Agreement.\nh. Entire Agreement; Amendment. This Agreement supersedes all prior agreements, written or oral, between the Employee and the\nCompany relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part,\nexcept by an agreement in writing signed by the Employee and the Company. The Employee agrees that any change or changes in Employee's\nduties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\ni.\nCaptions The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect\nthe scope or substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS\nAND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\n[Remainder of the Page Intentionally Left Blank]\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year set forth above.\nWITNESS our hands and seals:\nRESTORBIO, INC.\nACKNOWLEDGED AND AGREED:\nBy:\nName: David Steinberg\nChen Schor\nTitle: Board Member	Exhibit A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “Agreement”) is made as of this day of\n, 2017 by and between resTORbio, Inc., a\nDelaware corporation (hereinafter referred to collectively with its Affiliates as the “Company”), and Chen Schor (the “Employee”).\nThe Company desires to employ the Employee to provide services to the Company. In consideration of the employment or the continued\nemployment of the Employee by the Company, the Company and the Employee agree as follows:\n1. Condition of Employment.\nThe Employee acknowledges that Employee’s employment and/or the continuance of that employment with the Company is\ncontingent upon Employee’s agreement to become a party to and adhere to the provisions of this Agreement. The Employee further\nacknowledges that the nature of the Company’s business is such that protection of its proprietary and confidential information and the proprietary\nand confidential information of its Affiliates is critical to the survival and success of the Company’s business.\n2. Proprietary and Confidential Information.\na. The Employee agrees that all information and know-how, whether or not in writing, of a private, secret or confidential nature\nconcerning the Company’s or any Affiliate’s business or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive\nproperty of the Company (or any person or entity designated by the Company). By way of illustration, but not limitation, Proprietary Information\nmay include discoveries, ideas, inventions, products, product improvements, product enhancements, processes, methods, techniques, formulas,\ncompositions, compounds, negotiation strategies and positions, projects, developments, plans (including business and marketing plans), research\ndata, clinical data, financial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used\npursuant to a license agreement), computer software code, computer games, customer, prospect and supplier lists, and contacts at or knowledge\nof customers or prospective customers of the Company or any Affiliate, and the names of, contact information of, and any other data concerning,\nexisting and prospective Affiliates and existing and prospective investors of such Affiliates. The Employee shall not disclose any Proprietary\nInformation to any person or entity other than employees of the Company or use the same for any purposes (other than in the performance of\nEmployee’s duties as an employee of the Company) without written approval by an officer of the Company, either during or after Employee’s\nemployment with the Company. The Employee shall use the Employee’s best efforts to prevent unauthorized publication or disclosure of any of\nthe Company’s Proprietary Information.\nb. The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models, laboratory\nnotebooks, program listings, computer equipment or devices, computer programs or other written, photographic, or other tangible or intangible\nmaterial containing Proprietary Information, whether created by the Employee or others, which shall come into Employee’s custody or\npossession, shall be and are the exclusive property of the Company to be used by the Employee only in the performance of Employee’s duties for\nthe Company and shall not be copied or removed from the Company premises except in the pursuit of the business of the Company. All such\nmaterials or copies thereof and all tangible property of the Company in the custody or possession of the Employee shall be delivered to the\nCompany, upon the earlier of (i) a request by the Company or (ii) termination of Employee’s employment for any reason. After such delivery, the\nEmployee shall not retain any such materials or copies thereof or any such tangible property.\nc. The Employee agrees that Employee’s obligation not to disclose or to use information and materials of the types set forth in\nparagraphs 2(a) and 2(b) above, and Employee’s obligation to return materials and tangible property, set forth in paragraph 2(b) above, also\nextends to such types of information, materials and tangible property of Affiliates, customers of the Company or suppliers to the Company or\nother third parties who may have disclosed or entrusted the same to the Company or to the Employee in the course of the Company’s business.\n3. Scope of Disclosure Restrictions.\nNothing in this Agreement or elsewhere prohibits the Employee from reporting possible violations of state or federal law or regulation to\nany government agency, regulator, or legal authority, or making other disclosures that are protected under the whistleblower provisions of state or\nfederal law or regulation. The Employee is not required to notify the Company that the Employee has made any such reports or disclosures;\nprovided, however, that nothing herein authorizes the disclosure of information the Employee obtained through a communication that was\nsubject to the attorney-client privilege, unless disclosure of the information would otherwise be permitted by an applicable law or rule. Further,\npursuant to the Defend Trade Secrets Act: “An individual shall not be held criminally or civilly liable under any Federal or State trade secret law\nfor the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly,\nor to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other\ndocument filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer\nfor reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the\ncourt proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except\npursuant to court order.”\n4. Non-Disparagement.\nThe Employee shall not, either during Employee’s employment with the Company or thereafter, make or encourage others to make any\nstatement or release any information that is intended to, or reasonably could be foreseen to, disparage, defame or embarrass the Company or any\nof its Affiliates or their respective employees, officers, directors, partners, members or stockholders.\n5. Miscellaneous.\na. Equitable Remedies. The Employee acknowledges that the restrictions contained in this Agreement are necessary for the protection\nof the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that\nany breach or threatened breach of this Agreement is likely to cause the Company substantial and irrevocable damage which is difficult to\nmeasure. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to such other\nremedies which may be available, shall have the right to obtain an injunction from a court restraining such a breach or threatened breach without\nposting bond and the right to specific performance of the provisions of this Agreement and the Employee hereby waives the adequacy of a\nremedy at law as a defense to such relief.\nb. Disclosure of this Agreement. The Employee hereby authorizes the Company to notify others, including but not limited to the\nAffiliates and any of the Employee’s future employers or prospective business associates, of the terms and existence of this Agreement and the\nEmployee’s continuing obligations to the Company hereunder.\nc. Not Employment Contract. The Employee acknowledges that this Agreement does not constitute a contract of employment, does\nnot imply that the Company will continue Employee’s employment for any period of time and does not change the at-will nature of Employee’s\nemployment.\nd. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective\nsuccessors and assigns, including any corporation with which, or into which, the Company may be merged or which may succeed to the\nCompany’s assets or business, provided, however, that the obligations of the Employee are personal and shall not be assigned by Employee. The\nEmployee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any Affiliate thereof to whose\nemploy the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such transfer.\ne. Severability. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and\nenforceability of the remaining provisions shall in no way be affected or impaired thereby.\nf. Waivers. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nother right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to\nor waiver of any right on any other occasion.\ng. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of\nMassachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to\nresolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the Commonwealth of\nMassachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each consents to the\njurisdiction of such a court. The Company and the Employee each hereby irrevocably waive any right to a trial by jury in any action, suit or other\nlegal proceeding arising under or relating to any provision of this Agreement.\nh. Entire Agreement; Amendment. This Agreement supersedes all prior agreements, written or oral, between the Employee and the\nCompany relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part,\nexcept by an agreement in writing signed by the Employee and the Company. The Employee agrees that any change or changes in Employee’s\nduties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\ni. Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect\nthe scope or substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS\nAND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\n[Remainder of the Page Intentionally Left Blank]\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year set forth above.\nWITNESS our hands and seals:\nRESTORBIO, INC.\nACKNOWLEDGED AND AGREED:\nBy:\nName: David Steinberg\nChen Schor\nTitle: Board Member
+5300d7e38a3a997db57fcaeb1d95fa38.pdf	effective_date jurisdiction party term	EX-99.D.3 12 c60911exv99wdw3.htm EX-99.D.3\nExhibit (d)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of the 25th day of June, 2010 (“Effective\nDate”), between Cardiac Science Corporation, a Delaware corporation having its principal place of business at 3303 Monte Villa Parkway,\nBothell, Washington 98021-8906, and Criticare Systems/Opto, a\ncorporation having its principal place of business at 20925\nCrossroads Circle, Waukesha WI 53186.\n1 . Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest (“Authorized Purpose”)\nand in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information\nwhich Owner desires Recipient to treat as confidential. The party disclosing Confidential Information is referred to herein as the “Owner” and\nthe party receiving Confidential Information is referred to herein as the “Recipient”.\n2. “Confidential Information” means any information (including without limitation documents, computer data, or oral communications) disclosed\nby either party to the other party, either directly or indirectly, that is identified as confidential or other similar designation at the time of disclosure\nor is known or should reasonably be known by the Recipient to be confidential in nature. The existence and subject matter of the parties’\ndiscussions shall be treated as Confidential Information. Confidential Information may also include information disclosed to Owner by third\nparties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the\npublic domain prior to the time of disclosure by Owner; (ii) becomes publicly known and made generally available after disclosure by Owner to\nRecipient through no action or inaction of Recipient; (iii) is already in the possession of Recipient at the time of disclosure by Owner as shown\nby Recipient’s files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach of\nsuch third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Owner ’s\nConfidential Information, as shown by documents and other competent evidence in Recipient’s possession.\n3. Legally Compelled Disclosure. If Recipient is required to disclose Owner’s Confidential Information pursuant to a valid order by a court or\nother governmental body or as otherwise required by law, prior to any such compelled disclosure, Recipient will (i) notify Owner of the legal\nprocess, and allow Owner to assert the privileged and confidential nature of the Confidential Information against the third party seeking\ndisclosure and (ii) reasonably cooperate with Owner in protecting against any such disclosure and/or obtaining a protective order narrowing the\nscope of such disclosure and/or use of the Confidential Information. If such protection against disclosure is not obtained, Recipient will be\nentitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.\n4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and\nnot for any third party’s benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees and\nagents of Recipient who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose.\nEach party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of Owner.\nNeither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes,\nsoftware or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder.\nCertain Confidential Information may be considered material non-public information under Regulation FD promulgated by the Securities and\nExchange Commission. Recipient acknowledges that the United States securities laws prohibit it or any person who has received material\nnonpublic information about the Owner from purchasing or selling securities of the Owner or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in reliance on such\ninformation, and agrees not to purchase, sell or otherwise engage in transactions in Owner’s stock based on such material nonpublic information\nuntil such time as the information becomes disseminated to the public either through a press release issued by Owner or through a filing made by\nOwner pursuant to the Securities\nCONFIDENTIAL\nNDA-CSC Standard\nPage1of3\nExchange Act of 1934, as amended; provided, however, that Recipient may make any disclosure or use of such information to which Owner\ngives its prior written consent.\n5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and\nunauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures\nthat it takes to protect its own most highly confidential information and shall ensure that its employees and agents who have access to\nConfidential Information of the other party are subject to confidentiality obligations similar in scope and nature to the provisions hereof, prior to\nany disclosure of Confidential Information to such employees or agents. Each party shall reproduce the other party’s proprietary rights notices on\nany such approved copies, in the same manner in which such notices were set forth in or on the original.\n6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its\nsole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.\n7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS,\nIMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF\nTHIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.\n8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed\nby either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of Owner\nand shall be promptly returned to Owner upon Owner ’s written request or upon termination of this Agreement.\n9. No License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the\nother party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set\nforth herein.\n10. Term. This Agreement covers the disclosure of all Confidential Information for a period of three (3) years commencing as of the Effective\nDate. Recipient’s duty to protect the Confidential Information disclosed under this Agreement expires five (5) years from the date of receipt of\nConfidential Information (the “Confidentiality Term”). Either party may terminate this Agreement earlier by giving thirty (30) days prior written\nnotice of termination to the other party. Upon the expiration or termination of this Agreement, the obligations of each party shall survive with\nrespect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes\npublicly known and made generally available through no action or inaction of Recipient or until the end of the Confidentiality Term, whichever\noccurs sooner. For the avoidance of doubt, upon termination of this Agreement, each party’s obligation to keep the Confidential Information of\nthe other party confidential for the Confidentiality Term shall apply even in the event where one party is acquired or merged by or into a third\nparty, and such third party shall have the right to enforce this obligation as a third party beneficiary.\n11. Remedies. Each party agrees and acknowledges that any breach of this Agreement may cause irreparable harm to the other party for which\nmonetary damages may be inadequate. Accordingly, the harmed party may be entitled to seek injunctive or other equitable relief to remedy any\nthreatened or actual breach of this Agreement by the other party.\n12. Notice. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly\ngiven if given in writing and delivered (i) by nationally recognized private courier (e.g ., Federal Express), (ii) facsimile directed at the signatory\nof the other party (at the number below), or (iii) by mail (return receipt requested), properly addressed and stamped with the required postage, to\nthe recipient at the address identified in its signature block to this Agreement. Either party may from time to time change its fax number or\naddress by giving the other party notice of the change in accordance with this Section.\nCONFIDENTIAL\nNDA-CSC Standard\nPage2of3\n13. Miscellaneous. This document contains the entire agreement between the parties with respect to the subject matter hereof and neither party\nshall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth\nherein. Each party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its\nobligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized\nrepresentative listed below, this Agreement shall have been duly executed and be legally binding upon the respective party in all respects. This\nAgreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. Any failure to enforce any\nprovision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any\nobligation waived, except by a writing signed by both parties hereto.\nIN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives as of the Effective Date.\nCARDIAC SCIENCE CORPORATION\nSignature:\n/s/ Mark Daniel\nName:\nMark Daniel\nTitle:\nController\nFax Number:\n425-402-2012\nDate:\n7/27/10\nFor:\nSignature:\nName:\nTitle:\nFax Number:\nE-mail Address:\nDate:\nCSI/Opto Circuits\n/s/ Joseph LaPorta\nJoseph LaPorta\nCOO\n262-798-5237\njoseph.laporta@csiusa.com\n6/25/10\nCONFIDENTIAL\nNDA-CSC Standard\nPage3of3	EX-99.D.3 12 ¢60911exv99wdw3.htm EX-99.D.3\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of the 25th day of June, 2010 (“Effective\nDate”), between Cardiac Science Corporation, a Delaware corporation having its principal place of business at 3303 Monte Villa Parkway,\nBothell, Washington 98021-8906, and Criticare Systems/Opto, a corporation having its principal place of business at 20925\nCrossroads Circle, Waukesha W1 53186.\n \n1 . Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest (“Authorized Purpose”)\nand in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information\nwhich Owner desires Recipient to treat as confidential. The party disclosing Confidential Information is referred to herein as the “Owner” and\nthe party receiving Confidential Information is referred to herein as the “Recipient”.\n2. “Confidential Information” means any information (including without limitation documents, computer data, or oral communications) disclosed\nby either party to the other party, either directly or indirectly, that is identified as confidential or other similar designation at the time of disclosure\nor is known or should reasonably be known by the Recipient to be confidential in nature. The existence and subject matter of the parties’\ndiscussions shall be treated as Confidential Information. Confidential Information may also include information disclosed to Owner by third\nparties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the\npublic domain prior to the time of disclosure by Owner; (ii) becomes publicly known and made generally available after disclosure by Owner to\nRecipient through no action or inaction of Recipient; (iii) is already in the possession of Recipient at the time of disclosure by Owner as shown\nby Recipient’s files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach of\nsuch third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Owner’s\nConfidential Information, as shown by documents and other competent evidence in Recipient’s possession.\n3. Legally Compelled Disclosure. If Recipient is required to disclose Owner’s Confidential Information pursuant to a valid order by a court or\nother governmental body or as otherwise required by law, prior to any such compelled disclosure, Recipient will (i) notify Owner of the legal\nprocess, and allow Owner to assert the privileged and confidential nature of the Confidential Information against the third party seeking\ndisclosure and (ii) reasonably cooperate with Owner in protecting against any such disclosure and/or obtaining a protective order narrowing the\nscope of such disclosure and/or use of the Confidential Information. If such protection against disclosure is not obtained, Recipient will be\nentitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.\n4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and\nnot for any third party’s benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees and\nagents of Recipient who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose.\nEach party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of Owner.\nNeither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes,\nsoftware or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder.\nCertain Confidential Information may be considered material non-public information under Regulation FD promulgated by the Securities and\nExchange Commission. Recipient acknowledges that the United States securities laws prohibit it or any person who has received material\nnonpublic information about the Owner from purchasing or selling securities of the Owner or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in reliance on such\ninformation, and agrees not to purchase, sell or otherwise engage in transactions in Owner’s stock based on such material nonpublic information\nuntil such time as the information becomes disseminated to the public either through a press release issued by Owner or through a filing made by\nOwner pursuant to the Securities\nCONFIDENTIAL NDA-CSC Standard\nPage 1 of 3\nExchange Act of 1934, as amended; provided, however, that Recipient may make any disclosure or use of such information to which Owner\ngives its prior written consent.\n5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and\nunauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures\nthat it takes to protect its own most highly confidential information and shall ensure that its employees and agents who have access to\nConfidential Information of the other party are subject to confidentiality obligations similar in scope and nature to the provisions hereof, prior to\nany disclosure of Confidential Information to such employees or agents. Each party shall reproduce the other party’s proprietary rights notices on\nany such approved copies, in the same manner in which such notices were set forth in or on the original.\n6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its\nsole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.\n7. No Warranty. ALL. CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS,\nIMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF\nTHIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.\n8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed\nby either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of Owner\nand shall be promptly returned to Owner upon Owner’s written request or upon termination of this Agreement.\n9. No License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the\nother party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set\nforth herein.\n10. Term. This Agreement covers the disclosure of all Confidential Information for a period of three (3) years commencing as of the Effective\nDate. Recipient’s duty to protect the Confidential Information disclosed under this Agreement expires five (5) years from the date of receipt of\nConfidential Information (the “Confidentiality Term”). Either party may terminate this Agreement earlier by giving thirty (30) days prior written\nnotice of termination to the other party. Upon the expiration or termination of this Agreement, the obligations of each party shall survive with\nrespect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes\npublicly known and made generally available through no action or inaction of Recipient or until the end of the Confidentiality Term, whichever\noccurs sooner. For the avoidance of doubt, upon termination of this Agreement, each party’s obligation to keep the Confidential Information of\nthe other party confidential for the Confidentiality Term shall apply even in the event where one party is acquired or merged by or into a third\nparty, and such third party shall have the right to enforce this obligation as a third party beneficiary.\n \n11. Remedies. Each party agrees and acknowledges that any breach of this Agreement may cause irreparable harm to the other party for which\nmonetary damages may be inadequate. Accordingly, the harmed party may be entitled to seek injunctive or other equitable relief to remedy any\nthreatened or actual breach of this Agreement by the other party.\n12. Notice. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly\ngiven if given in writing and delivered (i) by nationally recognized private courier (e.g., Federal Express), (ii) facsimile directed at the signatory\nof the other party (at the number below), or (iii) by mail (return receipt requested), properly addressed and stamped with the required postage, to\nthe recipient at the address identified in its signature block to this Agreement. Either party may from time to time change its fax number or\naddress by giving the other party notice of the change in accordance with this Section.\nCONFIDENTIAL NDA-CSC Standard\nPage 2 of 3\n13. Miscellaneous. This document contains the entire agreement between the parties with respect to the subject matter hereof and neither party shall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth herein. Each party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its obligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized representative listed below, this Agreement shall have been duly executed and be legally binding upon the respective party in all respects. This Agreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any obligation waived, except by a writing signed by both parties hereto. IN WITNESS WHEREQF, the parties have executed this Agreement through their duly authorized representatives as of the Effective Date. CARDIAC SCIENCE CORPORATION Signature:\nName:\nTitle:\nFax Number:\nDate:\nFor:\nSignature:\nName:\nTitle:\nFax Number:\nE-mail Address:\nDate:\nCONFIDENTIAL\n/s/ Mark Daniel\nMark Daniel\nController\n425-402-2012\n7/27/10\nCSI/Opto Circuits\n/s/ Joseph LaPorta\nJoseph LaPorta\nCOO\n262-798-5237\njoseph.laporta@csiusa.com\n6/25/10\nPage 3 of 3\nNDA-CSC Standard	EX-99.D.3 12 c60911exv99wdw3.htm EX-99.D.3\nExhibit (d)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT ("Agreement") is made and entered into as of the 25th day of June, 2010 ("Effective\nDate"), between Cardiac Science Corporation, a Delaware corporation having its principal place of business at 3303 Monte Villa Parkway,\nBothell, Washington 98021-8906, and Criticare Systems/Opto, a corporation having its principal place of business at 20925\nCrossroads Circle, Waukesha WI 53186.\n1 Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest ("Authorized Purpose")\nand in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information\nwhich Owner desires Recipient to treat as confidential. The party disclosing Confidential Information is referred to herein as the "Owner" and\nthe party receiving Confidential Information is referred to herein as the "Recipient".\n2. "Confidential Information" means any information (including without limitation documents, computer data, or oral communications) disclosed\nby either party to the other party, either directly or indirectly, that is identified as confidential or other similar designation at the time of disclosure\nor is known or should reasonably be known by the Recipient to be confidential in nature. The existence and subject matter of the parties'\ndiscussions shall be treated as Confidential Information. Confidential Information may also include information disclosed to Owner by third\nparties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the\npublic domain prior to the time of disclosure by Owner; (ii) becomes publicly known and made generally available after disclosure by Owner to\nRecipient through no action or inaction of Recipient; (iii) is already in the possession of Recipient at the time of disclosure by Owner as shown\nby Recipient's files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach\nof\nsuch third party's obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Owner's\nConfidential Information, as shown by documents and other competent evidence in Recipient's possession.\n3. Legally Compelled Disclosure. If Recipient is required to disclose Owner's Confidential Information pursuant to a valid order by a court or\nother governmental body or as otherwise required by law, prior to any such compelled disclosure, Recipient will (i) notify Owner of the legal\nprocess, and allow Owner to assert the privileged and confidential nature of the Confidential Information against the third party seeking\ndisclosure\nand\n(ii)\nreasonably\ncooperate\nwith\nOwner\nin\nprotecting\nagainst\nany\nsuch\ndisclosure\nand/or\nobtaining\na\nprotective\norder\nnarrowing\nthe\nscope of such disclosure and/or use of the Confidentia Information If such protection against disclosure is not obtained, Recipient will be\nentitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.\n4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and\nnot for any third party's benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees and\nagents\nof Recipient who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose.\nEach party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of Owner.\nNeither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes,\nsoftware or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder.\nCertain Confidential Information may be considered material non-public information under Regulation FD promulgated by the Securities and\nExchange Commission. Recipient acknowledges that the United States securities laws prohibit it or any person who has received material\nnonpublic information about the Owner from purchasing or selling securities of the Owner or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in reliance on such\ninformation, and agrees not to purchase, sell or otherwise engage in transactions in Owner's stock based on such material nonpublic information\nuntil such time as the information becomes disseminated to the public either through a press release issued by Owner or through a filing made by\nOwner pursuant to the Securities\nCONFIDENTIAL\nNDA-CSC Standard\nPage 1 of 3\nExchange Act of 1934, as amended; provided, however, that Recipient may make any disclosure or use of such information to which Owner\ngives its prior written consent.\n5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and\nunauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures\nthat it takes to protect its own most highly confidential information and shall ensure that its employees and agents who have access to\nConfidential Information of the other party are subject to confidentiality obligations similar in scope and nature to the provisions hereof, prior to\nany disclosure of Confidential Information to such employees or agents. Each party shall reproduce the other party's proprietary rights notices on\nany such approved copies, in the same manner in which such notices were set forth in or on the original.\n6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its\nsole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.\n7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS". EACH PARTY MAKES NO WARRANTIES, EXPRESS,\nIMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF\nTHIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.\n8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed\nby either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of Owner\nand shall be promptly returned to Owner upon Owner's written request or upon termination of this Agreement.\n9.\nNo License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the\nother party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set\nforth herein.\n10\nTerm.\nThis\nAgreement\ncovers\nthe\ndisclosure\nof\nall\nConfidentia\nInformation\nfor\na\nperiod\nof\nthree\n(3)\nyears\ncommencing\nas\nof\nthe\nEffective\nDate. Recipient's duty to protect the Confidential Information disclosed under this Agreement expires five (5) years from the date of receipt\nof\nConfidential Information (the "Confidentiality Tern Either party may terminate this Agreement earlier by giving thirty (30) days prior written\nnotice of termination to the other party. Upon the expiration or termination of this Agreement, the obligations of each party shall survive with\nrespect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes\npublicly known and made generally available through no action or inaction of Recipient or until the end of the Confidentiality Term, whichever\noccurs sooner. For the avoidance of doubt, upon termination of this Agreement, each party's obligation to keep the Confidential Information of\nthe other party confidential for the Confidentiality Term shall apply even in the event where one party is acquired or merged by or into a third\nparty, and such third party shall have the right to enforce this obligation as a third party beneficiary.\n11. Remedies. Each party agrees and acknowledges that any breach of this Agreement may cause irreparable harm to the other party for which\nmonetary damages may be inadequate. Accordingly, the harmed party may be entitled to seek injunctive or other equitable relief to remedy\nany\nthreatened or actual breach of this Agreement by the other party.\n12. Notice. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly\ngiven if given in writing and delivered (i) by nationally recognized private courier (e.g., Federal Express), (ii) facsimile directed at the signatory\nof the other party (at the number below), or (iii) by mail (return receipt requested), properly addressed and stamped with the required postage, to\nthe recipient at the address identified in its signature block to this Agreement. Either party may from time to time change its fax number or\naddress by giving the other party notice of the change in accordance with this Section.\nCONFIDENTIAL\nNDA-CSC Standard\nPage 2 of 3\n13. Miscellaneous. This document contains the entire agreement between the parties with respect to the subject matter hereof and neither party\nshall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth\nherein. Each party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its\nobligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized\nrepresentative listed below, this Agreement shall have been duly executed and be legally binding upon the respective party in all respects. This\nAgreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. Any failure to enforce any\nprovision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any\nobligation waived, except by a writing signed by both parties hereto.\nIN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives as of the Effective Date.\nCARDIAC SCIENCE CORPORATION\nSignature:\n/s/ Mark Daniel\nName:\nMark Daniel\nTitle:\nController\nFax Number:\n425-402-2012\nDate:\n7/27/10\nFor:\nCSI/Opto Circuits\nSignature:\n/s/ Joseph LaPorta\nName:\nJoseph LaPorta\nCOO\nTitle:\n262-798-5237\njoseph.laporta@csiusa.com\nFax Number:\n6/25/10\nE-mail Address:\nDate:\nCONFIDENTIAL\nNDA-CSC Standard\nPage 3 of 3	EX-99.D.3 12 c60911exv99wdw3.htm EX-99.D.3\nExhibit (d)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered into as of the 25th day of June, 2010 (“Effective\nDate”), between Cardiac Science Corporation, a Delaware corporation having its principal place of business at 3303 Monte Villa Parkway,\nBothell, Washington 98021-8906, and Criticare Systems/Opto, a\ncorporation having its principal place of business at 20925\nCrossroads Circle, Waukesha WI 53186.\n1 . Purpose. The parties wish to engage in discussions regarding exploration of a business opportunity of mutual interest (“Authorized Purpose”)\nand in connection with this Authorized Purpose, each party may disclose to the other certain confidential technical and business information\nwhich Owner desires Recipient to treat as confidential. The party disclosing Confidential Information is referred to herein as the “Owner” and\nthe party receiving Confidential Information is referred to herein as the “Recipient”.\n2. “Confidential Information” means any information (including without limitation documents, computer data, or oral communications) disclosed\nby either party to the other party, either directly or indirectly, that is identified as confidential or other similar designation at the time of disclosure\nor is known or should reasonably be known by the Recipient to be confidential in nature. The existence and subject matter of the parties’\ndiscussions shall be treated as Confidential Information. Confidential Information may also include information disclosed to Owner by third\nparties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the\npublic domain prior to the time of disclosure by Owner; (ii) becomes publicly known and made generally available after disclosure by Owner to\nRecipient through no action or inaction of Recipient; (iii) is already in the possession of Recipient at the time of disclosure by Owner as shown\nby Recipient’s files and records immediately prior to the time of disclosure; (iv) is obtained by Recipient from a third party without a breach of\nsuch third party’s obligations of confidentiality; or (v) is independently developed by Recipient without use of or reference to Owner ’s\nConfidential Information, as shown by documents and other competent evidence in Recipient’s possession.\n3. Legally Compelled Disclosure. If Recipient is required to disclose Owner’s Confidential Information pursuant to a valid order by a court or\nother governmental body or as otherwise required by law, prior to any such compelled disclosure, Recipient will (i) notify Owner of the legal\nprocess, and allow Owner to assert the privileged and confidential nature of the Confidential Information against the third party seeking\ndisclosure and (ii) reasonably cooperate with Owner in protecting against any such disclosure and/or obtaining a protective order narrowing the\nscope of such disclosure and/or use of the Confidential Information. If such protection against disclosure is not obtained, Recipient will be\nentitled to disclose the Confidential Information, but only as and to the extent necessary to legally comply with such compelled disclosure.\n4. Non-use and Non-disclosure. Each party agrees to use any Confidential Information of the other party solely for the Authorized Purpose and\nnot for any third party’s benefit. Each party agrees to limit disclosures of Confidential Information of the other party to those employees and\nagents of Recipient who are required to have the information in order to evaluate or engage in discussions regarding the Authorized Purpose.\nEach party agrees that it will not disclose any of the Confidential Information to any third party without the express written consent of Owner.\nNeither party shall reverse engineer, disassemble or decompile any of the Confidential Information of the other party or any of the prototypes,\nsoftware or other tangible objects which embody the Confidential Information of the other party and which are provided to the party hereunder.\nCertain Confidential Information may be considered material non-public information under Regulation FD promulgated by the Securities and\nExchange Commission. Recipient acknowledges that the United States securities laws prohibit it or any person who has received material\nnonpublic information about the Owner from purchasing or selling securities of the Owner or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in reliance on such\ninformation, and agrees not to purchase, sell or otherwise engage in transactions in Owner’s stock based on such material nonpublic information\nuntil such time as the information becomes disseminated to the public either through a press release issued by Owner or through a filing made by\nOwner pursuant to the Securities\nCONFIDENTIAL\nNDA-CSC Standard\nPage1of3\nExchange Act of 1934, as amended; provided, however, that Recipient may make any disclosure or use of such information to which Owner\ngives its prior written consent.\n5. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and\nunauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures\nthat it takes to protect its own most highly confidential information and shall ensure that its employees and agents who have access to\nConfidential Information of the other party are subject to confidentiality obligations similar in scope and nature to the provisions hereof, prior to\nany disclosure of Confidential Information to such employees or agents. Each party shall reproduce the other party’s proprietary rights notices on\nany such approved copies, in the same manner in which such notices were set forth in or on the original.\n6. No Obligation. Nothing herein shall obligate either party to proceed with any transaction between them, and each party reserves the right, in its\nsole discretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity.\n7. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS,\nIMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE, NON-INFRINGEMENT OF\nTHIRD PARTY RIGHTS, OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.\n8. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed\nby either party to the other party, and all copies thereof which are in the possession of the other party, shall be and remain the property of Owner\nand shall be promptly returned to Owner upon Owner ’s written request or upon termination of this Agreement.\n9. No License. Nothing in this Agreement is intended to grant any rights to either party under any patent, mask work right or copyright of the\nother party, nor shall this Agreement grant any party any rights in or to the Confidential Information of the other party except as expressly set\nforth herein.\n10. Term. This Agreement covers the disclosure of all Confidential Information for a period of three (3) years commencing as of the Effective\nDate. Recipient’s duty to protect the Confidential Information disclosed under this Agreement expires five (5) years from the date of receipt of\nConfidential Information (the “Confidentiality Term”). Either party may terminate this Agreement earlier by giving thirty (30) days prior written\nnotice of termination to the other party. Upon the expiration or termination of this Agreement, the obligations of each party shall survive with\nrespect to Confidential Information of the other party disclosed hereunder until such time as the respective Confidential Information becomes\npublicly known and made generally available through no action or inaction of Recipient or until the end of the Confidentiality Term, whichever\noccurs sooner. For the avoidance of doubt, upon termination of this Agreement, each party’s obligation to keep the Confidential Information of\nthe other party confidential for the Confidentiality Term shall apply even in the event where one party is acquired or merged by or into a third\nparty, and such third party shall have the right to enforce this obligation as a third party beneficiary.\n11. Remedies. Each party agrees and acknowledges that any breach of this Agreement may cause irreparable harm to the other party for which\nmonetary damages may be inadequate. Accordingly, the harmed party may be entitled to seek injunctive or other equitable relief to remedy any\nthreatened or actual breach of this Agreement by the other party.\n12. Notice. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly\ngiven if given in writing and delivered (i) by nationally recognized private courier (e.g ., Federal Express), (ii) facsimile directed at the signatory\nof the other party (at the number below), or (iii) by mail (return receipt requested), properly addressed and stamped with the required postage, to\nthe recipient at the address identified in its signature block to this Agreement. Either party may from time to time change its fax number or\naddress by giving the other party notice of the change in accordance with this Section.\nCONFIDENTIAL\nNDA-CSC Standard\nPage2of3\n13. Miscellaneous. This document contains the entire agreement between the parties with respect to the subject matter hereof and neither party\nshall have any obligation, express or implied by law, with respect to trade secret or proprietary information of the other party except as set forth\nherein. Each party represents, warrants and covenants that it has the full right and authority to enter into this Agreement and perform its\nobligations hereunder, that all required corporate approvals and authorizations have been obtained, and that, upon signature by its authorized\nrepresentative listed below, this Agreement shall have been duly executed and be legally binding upon the respective party in all respects. This\nAgreement shall be governed by the laws of the State of Washington, without reference to conflict of laws principles. Any failure to enforce any\nprovision of this Agreement shall not constitute a waiver thereof or of any other provision. This Agreement may not be amended, nor any\nobligation waived, except by a writing signed by both parties hereto.\nIN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives as of the Effective Date.\nCARDIAC SCIENCE CORPORATION\nSignature:\n/s/ Mark Daniel\nName:\nMark Daniel\nTitle:\nController\nFax Number:\n425-402-2012\nDate:\n7/27/10\nFor:\nSignature:\nName:\nTitle:\nFax Number:\nE-mail Address:\nDate:\nCSI/Opto Circuits\n/s/ Joseph LaPorta\nJoseph LaPorta\nCOO\n262-798-5237\njoseph.laporta@csiusa.com\n6/25/10\nCONFIDENTIAL\nNDA-CSC Standard\nPage3of3
+5440fd5a99de249f980bae3ef731c8ee.pdf	effective_date jurisdiction party term	EX-99.E .3 3 dex99e3.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(3)\nLOGO\nPRIVATE AND CONFIDENTIAL\nFebruary 23, 2011\nMerck Sharp & Dohme Corp.\nOne Merck Drive\nWhitehouse Station, NJ 08889-0100\nAttention: Richard Kender, Senior Vice President, Business Develop & Corporate Licensing\nLadies and Gentlemen:\nWe understand that Merck Sharp & Dohme Corp. (“you”) has requested information regarding Inspire Pharmaceuticals, Inc. (the “Company”)\nin connection with your consideration of a possible negotiated transaction between you and the Company pursuant to which you or one of your\ncontrolled or controlling affiliates would acquire the Company (a “Transaction”). The Company is prepared, subject to the terms and conditions of\nthis letter agreement (this “Agreement”), to furnish you with certain confidential and proprietary information concerning the Company on the terms\nset forth herein.\n1. As a condition to being furnished information by or on behalf of the Company, you and your Representatives (as defined below) shall treat\nin accordance with this Agreement all information (including, without limitation, oral, written, emails and all other electronic information)\nconcerning the Company or its Representatives that has been or may be furnished to you by or on behalf of the Company or any of its\nRepresentatives in connection with a possible Transaction, and all analyses, compilations, forecasts, studies, memoranda, notes, other materials and\nportions thereof prepared by you or any of your Representatives, or otherwise on your behalf, that contain, reflect or are based upon, in whole or in\npart, any such information, including, without limitation, any such materials stored in electronic format (collectively, the “Evaluation Material”). The\nterm “Evaluation Material” does not include information that (a) is or becomes generally available to the public other than as a result of a disclosure\nby you or any of your Representatives, (b) is or becomes available to you on a non-confidential basis from a source other than the Company or its\nRepresentatives, provided that such source is reasonably believed by you to not be bound by an obligation of confidentiality (whether by agreement,\nduty or otherwise) to the Company or its Representatives or (c) you can demonstrate was independently developed by you without reference to,\nincorporation of, or other use of any Evaluation Material or information from any source that is bound by an obligation of confidentiality (whether\nby agreement, duty or otherwise) to the Company or its Representatives. As used in this Agreement, the term “Representatives” means (i) when used\nin relation to the Company, the Company’s direct and indirect parent, subsidiaries and affiliates and its and their respective directors, officers,\nemployees, agents and advisors (including, without limitation, financial and legal advisors, consultants and accountants) and (ii) when used in\nrelation to you, your subsidiaries and affiliates and your and their respective directors, officers, members, general (but not limited) partners,\nemployees, agents, advisors (including, without limitation, financial and legal advisors, consultants and accountants) and any commercial bank or\nother person engaged by you to provide or arrange potential debt financing in connection with the Transaction (a “Potential Debt Source”). As used\nin this Agreement, the term “person” shall be broadly interpreted to include the media and any corporation, partnership, company, group,\ngovernmental entity, trust, natural person or other entity. As used in this Agreement, the term “affiliate” shall have the meaning ascribed to it in Rule\n12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).\n2. In consideration of being furnished Evaluation Material, you and your Representatives shall keep all Evaluation Material confidential, and\nyou and your Representatives shall not disclose Evaluation Material to any other person, provided that (a) you may disclose Evaluation Material as\nrequired by applicable law, regulation or legal process and (b) you may disclose Evaluation Material to any of your Representatives who need to\nknow such Evaluation Material for the sole purpose of evaluating a Transaction on your behalf if prior to any such disclosure (i) you advise such\nRepresentative of the confidential nature of the Evaluation Material and the terms of this Agreement, (ii) such Representative agrees with you to\nkeep the Evaluation Material confidential in accordance with the terms hereof and to observe the other terms of this Agreement and (iii) in the case\nof a Representative that is a Potential Debt Source, such Representative agrees in a writing to the Company to be bound by the terms of this\nAgreement to the same extent as if it were a party hereto. You and your Representatives shall not provide any Evaluation Material to any potential\nequity financing source or other co-investor without the Company’s prior written consent. In the event that the Company provides such consent with\nrespect to a potential equity financing source or other co-investor, neither you nor your Representatives shall provide any Evaluation Material to\nsuch person unless and until such person has executed and delivered to the Company a letter agreement that is substantially identical to this\nAgreement. You and your Representatives shall not enter into any agreement or arrangement with any potential equity financing source or other co-\ninvestor regarding the provision of equity financing or other co-investment, nor shall you or any of your Representatives enter into any discussions\nwith any such person regarding the provision of any equity financing or other co-investment, in each case without the prior written consent of the\nCompany. Evaluation Material shall be used by you and your Representatives solely for the purpose of evaluating a Transaction and shall not be\nused for any other purpose whatsoever. This Agreement shall apply to your Representatives as if they were direct parties hereto and you shall be\nresponsible for any breach of this Agreement by your Representatives, provided, that you shall not be responsible for any breach of this Agreement\nby any such Representative who has agreed in writing with the Company to be directly bound by the terms of this Agreement. Neither you nor any\nof your Representatives shall enter into any exclusivity, “lock-up”, “dry-up” or other agreement or arrangement, whether written or oral, with any\npotential debt financing source that does or could reasonably be expected to directly or indirectly limit, restrict, restrain or otherwise impair the\nability of such potential financing source to act as a financing source to any other person considering a transaction involving the Company.\n3. In addition, except as required by applicable law, regulation or legal process, neither you nor any of your Representatives shall disclose to\nany person (except, if and to the extent permitted by the immediately preceding paragraph, to your Representatives and any potential equity\nfinancing source or other co-investor) (a) that Evaluation Material has been requested by or furnished or made available to you or your\nRepresentatives, (b) the fact that this Agreement exists or the terms hereof, (c) that you are considering a Transaction, (d) that investigations,\ndiscussions or negotiations are taking place concerning a Transaction or (e) any of the terms, conditions or other facts or information with respect to\na Transaction or any other potential similar transaction involving the Company, including, without limitation, the status or termination thereof.\n4. In the event that you or any of your Representatives are required by applicable law, regulation or legal process (including, without\nlimitation, by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other legal process) to\ndisclose any Evaluation Material or any information of the type described in the immediately preceding paragraph, you shall provide the Company\nwith prompt prior written notice of such requirement. You and your Representatives shall also, to the extent legally permissible, provide the\nCompany as promptly as practicable with a description of the information that may be required to be disclosed (and, if applicable, the text of the\ndisclosure itself) and reasonably cooperate (at Company’s expense) with the Company to the extent it may seek to limit such disclosure, including, if\nrequested, by taking all reasonable steps to resist or narrow any such disclosure or to obtain a protective order or other remedy with respect thereto.\nIf a protective order or other remedy is not obtained and disclosure is legally required, you and your applicable Representatives shall (a) disclose\nsuch information only to the extent required in the opinion of your or your applicable Representatives’ outside counsel and (b) give advance notice\nto the Company of the information to be actually disclosed as far in advance as is reasonably possible. In any such event, you and your applicable\nRepresentatives shall use reasonable efforts to ensure that all Evaluation Material\n2\nand all information of the type described in the immediately preceding paragraph that is so disclosed is accorded confidential treatment by the\nrecipient thereof.\n5. In the event that you determine not to proceed with a Transaction, you shall promptly inform the Company of that decision and, in that case\nor at any other time upon the request of the Company (in its sole discretion), you and your Representatives shall promptly deliver to the Company or\ndestroy, at your election, all Evaluation Material, including all notes relating thereto, without retaining any copy thereof. If requested by the\nCompany, you shall certify to the Company that all such material has been so delivered or destroyed in compliance herewith. Notwithstanding the\ndelivery or destruction of the Evaluation Material required by this paragraph, any and all duties and obligations existing under this Agreement shall\nremain in full force and effect. Notwithstanding the foregoing or any delivery or destruction of any Evaluation Material, your Representatives that\nare accounting firms may retain solely for compliance purposes copies of the Evaluation Material in their possession in accordance with policies and\nprocedures implemented by such persons in order to comply with applicable law, regulation or professional standards, provided, that any Evaluation\nMaterial so retained shall continue to be subject to the terms of this Agreement.\n6. You acknowledge that, in your and your Representatives’ examination of the Evaluation Material, you and your Representatives will have\naccess to material, non-public information, and that you are aware, and shall advise your Representatives who receive Evaluation Material or are\notherwise aware of the subject matter of this Agreement, that state and Federal laws, including, without limitation, Federal securities laws, impose\nrestrictions on the dissemination of such information and trading in securities when in possession of such information.\n7. For a period of 12 months from the date hereof, you shall not, nor shall you permit any of your Representatives to, directly or indirectly,\n(a) engage in any discussion regarding the Company or any of its affiliates with any supplier, vendor, customer or other person with whom the\nCompany has a relationship, other than in the ordinary course of your or your applicable Representative’s business consistent with past practice or\n(b) solicit for employment or hire any named officer or employee at the level of vice president or above of the Company or any of its subsidiaries or\naffiliates that you or any of your Representatives in connection with your consideration of a Transaction hereunder have discussions with or first\nobtain information with respect to, provided that this clause (b) shall not preclude you or any of your Representatives from hiring any such officer or\nemployee who (i) has had his or her employment terminated by the Company or any of its subsidiaries or affiliates prior to commencement of\nemployment discussions between you or your applicable Representative and such officer or employee, or (ii) responds to any general solicitation\nperformed by you or your applicable Representative that is not targeted at the Company or any of its subsidiaries or affiliates.\n8. Goldman Sachs & Co. (“Goldman”) shall have exclusive responsibility for arranging appropriate contacts for due diligence and other\npurposes regarding your consideration of a possible Transaction. Unless otherwise expressly agreed to in writing by the Company, all\ncommunications regarding a Transaction, requests for information concerning the Company or its subsidiaries or affiliates or a Transaction, notices\nunder this Agreement and questions regarding procedures in connection with a Transaction shall be submitted or directed exclusively to the\nrepresentatives of Goldman specifically identified to you by Goldman as contacts with respect to a Transaction. Under no circumstances shall you or\nany of your Representatives directly communicate with any director, officer or other employee of the Company or any of its subsidiaries or affiliates\nregarding any Evaluation Material or a Transaction or any other matter in connection therewith (other than during any management presentation, site\nvisit or other meeting or conference call pre-arranged through Goldman).\n9. Neither the Company nor any of its Representatives makes any representations or warranties, express or implied, with respect to the\naccuracy or completeness of the Evaluation Material, including, without limitation, any forecasts, projections or other forward-looking information\nincluded therein. You agree that, other than as may be set forth in any definitive agreement with respect to a Transaction, neither the Company nor its\nRepresentatives shall have any liability whatsoever to you or any of your Representatives, including, without limitation, in contract, tort or under\nFederal or state securities laws, relating to or resulting from the use of the\n3\nEvaluation Material by you or your Representatives or any errors therein or omissions therefrom. You and your Representatives are not entitled to\nrely on any Evaluation Material and only such express representations and warranties regarding Evaluation Material as may be made to you in a\ndefinitive written agreement relating to a Transaction, if any, shall have any legal effect, subject to the terms and conditions of such agreement.\n10. Each party agrees that no contract or agreement providing for a Transaction shall exist, directly or indirectly, unless and until a definitive\nwritten agreement with respect to a Transaction has been executed and delivered by both the Company and you or one of your affiliates. Each party\nalso agrees that unless and until a definitive written agreement with respect to a Transaction has been executed and delivered by the Company and\nyou or one of your affiliates, neither you nor the Company, nor any subsidiary or affiliate of the Company, shall be under any legal obligation of any\nkind whatsoever with respect to a Transaction by virtue of this Agreement (except for the matters specifically provided herein) or otherwise or by\nvirtue of any written or oral communications with respect to a Transaction by any of the Company’s or your Representatives. You agree that neither\nthe Company nor any of its Representatives shall be under any obligation to provide you with any Evaluation Material or to supplement or update\nany Evaluation Material previously provided. Nothing contained in this Agreement nor the furnishing of any Evaluation Material hereunder shall be\nconstrued as granting or conferring any rights by license or otherwise in any intellectual property. You further agree that the Company possesses the\nright to, and may, in its sole and absolute discretion and for any or no reason at all, reject any and all proposals made by you or your Representatives\nwith respect to a Transaction, terminate discussions and negotiations with you at any time, and conduct any process for a Transaction as it may\ndetermine (including, without limitation, negotiating with any other potentially interested person and entering into a definitive agreement with any\nother person without any prior notice to you or any of your Representatives).\n11. For a period of 18 months from the date hereof (the “Restricted Period”), unless you are specifically invited in writing in advance by the\nboard of directors or chief executive officer of the Company or Goldman on Company’s behalf, neither you nor any of your affiliates nor any other\nperson acting at your or your affiliates’ direct or indirect instruction shall, in any manner, directly or indirectly, (a) acquire, offer to acquire, agree to\nacquire or make a proposal to acquire, by purchase or otherwise, or borrow, any equity securities, or any direct or indirect rights, options or other\nderivative interests with respect to any equity securities, of the Company or any subsidiary of the Company or of any successor to or person in\ncontrol of the Company, or any assets or property of the Company or any subsidiary of the Company or of any such successor or controlling person\n(except that this restriction shall not apply to acquisitions by you or any benefit plan controlled by you of not more than one percent (in the\naggregate) of the then outstanding shares of a Company’s common stock); (b) make or in any way participate in any “solicitation” of “proxies” (as\nsuch terms are defined in Rule 14a-1 under the Exchange Act, and including any otherwise exempt solicitation pursuant to Rule 14a-2(b) under the\nExchange Act) to vote or deliver a written consent with respect to, or seek to advise or influence any person with respect to the voting of or\ndelivering a written consent with respect to, any voting securities of the Company or any of its subsidiaries (provided, that this clause (b) shall not\nprohibit the delivery by you or any of your Representatives of a revocable proxy or consent in response to a public proxy or consent solicitation\nmade generally to all holders of the Company’s equity securities pursuant to, and in accordance with, the applicable rules and regulations under the\nExchange Act); (c) make any public announcement with respect to, or publicly support, or solicit or submit a proposal for or offer of (with or without\nconditions) any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization, purchase of a material\nportion of the assets or properties of or other similar extraordinary transaction involving the Company or any of its subsidiaries or any of their\nrespective securities; (d) form, join or in any way participate in any “group” (within the meaning of Section 13(d) of the Exchange Act and the rules\nand regulations promulgated thereunder) with respect to any securities of the Company or otherwise in connection with any of the foregoing;\n(e) submit a proposal (including any precatory proposal) to be considered by the stockholders of the Company, or take any action to nominate any\nperson for membership on the board of directors of the Company, or take any action to remove any director from the board of directors of the\nCompany or to change the size or composition of the board of directors of the Company; (f) otherwise act, alone or in concert with others, to seek or\npropose to control or influence the management, board of directors or policies or affairs of the Company or any of its subsidiaries; (g) disclose any\nintention, plan,\n4\nproposal or arrangement inconsistent with any of the foregoing; (h) advise, assist, encourage or direct any other person to do any of the foregoing, or\nact as a financing source for or otherwise invest in any person in connection with such person doing any of the foregoing; (i) take any action that\ncould reasonably be expected to require the Company to make a public announcement regarding the possibility of a Transaction with you or any of\nyour affiliates or any of the other events described in this paragraph; or (j) take any action challenging the validity or enforceability of this paragraph,\nor request the Company amend or waive any provision of this paragraph (including this clause (j)), provided, that (i) you may make confidential\nrequests to the Company to amend or waive any of the limitations set forth in this paragraph, which the Company may accept or reject in its sole\ndiscretion, so long as any such request is made in a manner that does not reasonably require the public disclosure thereof by any person and (ii) your\nchairman or chief executive officer may communicate with the chairman and/or the chief executive officer of Company so long as such\ncommunication is made confidentially and any such request is made in a manner that does not reasonably require the public disclosure thereof by\nany person. Notwithstanding anything in this paragraph to the contrary, if a Fundamental Change Event (as defined below) occurs, you shall have the\nright to make one or more proposals to the Company regarding any of the matters in this paragraph, including, without limitation, to effect a\ntransaction pursuant to which you or your affiliates would acquire a majority of the outstanding voting securities of the Company or all or\nsubstantially all of the assets of the Company and its subsidiaries. A “Fundamental Change Event” means the entry by the Company into a binding\ndefinitive agreement with a third person to effect a purchase, tender or exchange offer, merger or other business combination that, if consummated,\nwould result in such third party owning at least a majority of the outstanding voting securities of the Company or all or substantially all of the assets\nof the Company and its subsidiaries (taken as a whole). You acknowledge that the Evaluation Material is being furnished to you and your\nRepresentatives, in part, in consideration of your agreements in this paragraph.\nThe Company represents to you that prior to the date of this Agreement, it has not entered into a confidentiality or similar agreement (taking into\neffect any waivers thereunder and amendments thereto) relating to a possible transaction with the Company as contemplated hereunder that contains\n(i) standstill provisions the duration of which are shorter than the Restricted Period, or (ii) a provision (such provision, a “Public Notice Release\nProvision”) that would permit the counterparty thereto to be released from its standstill obligations thereunder upon the Company announcing\npublicly (other than in connection with the execution of a definitive merger or similar acquisition agreement) that it is seeking purchasers for a\nmajority of its outstanding voting securities or all or substantially all of its and its subsidiaries’ assets. The Company covenants and agrees that if it\nshall hereafter enter into a confidentiality or similar agreement (taking into effect any waivers thereunder and amendments thereto) relating to a\ntransaction with the Company as contemplated hereunder that contains standstill provisions the duration of which are shorter than the Restricted\nPeriod or which contains a Public Notice Release Provision, the Company shall (A) provide written notice thereof to you, (B) agree to reduce the\nduration of the Restricted Period so that it is no longer than the duration of such shorter standstill period, and (C) agree to amend this Agreement to\ninclude a Public Notice Release Provision on terms substantially similar to those set forth in such other confidentiality or similar agreement.\n12. You recognize and acknowledge the competitive value and confidential nature of the Evaluation Material and that the Company and its\naffiliates and its and their subsidiaries would be irreparably harmed if information contained therein or derived therefrom is disclosed to any person\nor used for any purpose, in each case in material breach by you or your Representatives of the terms of this Agreement, or any other material breach\nby you or your Representatives of this Agreement shall otherwise occur. You further understand and agree that monetary remedies would be\ninadequate to protect the Company and its affiliates and its and their subsidiaries against any actual or threatened material breach of this Agreement\nby you or your Representatives, and that Company shall be entitled to an injunction or injunctions to prevent material breaches or threatened\nmaterial breaches by you or your Representatives of this Agreement and to compel specific performance of this Agreement. Such remedies shall not\nbe the exclusive remedy for actual or threatened breaches of this Agreement but shall be in addition to all other remedies available at law or in equity\nto the Company and its affiliates and their respective subsidiaries. No failure or delay by any party hereto in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or\n5\nfurther exercise thereof or the exercise of any other right, power or privilege hereunder. Notwithstanding anything to the contrary in this paragraph,\nCompany agrees and acknowledges that you and your Representatives do not waive the right to contest, and shall not be prohibited from contesting,\nwhether there has been a material breach by you or your Representatives of this Agreement.\n13. If any provision contained in this Agreement or the application thereof to you, the Company, or any other person or circumstance shall be\ninvalid, illegal or unenforceable in any respect under any applicable law as determined by a court of competent jurisdiction, the validity, legality and\nenforceability of the remaining provisions contained in this Agreement, or the application of such provision to such persons or circumstances other\nthan those as to which it has been held invalid, illegal or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired\nor invalidated thereby. In the case of any such determination of invalidity, illegality or unenforceability, the parties hereto shall negotiate in good\nfaith in an effort to agree upon a suitable and equitable substitute provision to effect the original intent of the parties.\n14. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to the\nprinciples of conflict of laws thereof that would require the application of the laws of any other jurisdiction. Each party irrevocably submits, on\nbehalf of itself and its Representatives, to the exclusive jurisdiction of the Chancery Court of the State of Delaware (the “Chancery Court”), or,\nsolely to the extent the Chancery Court does not have subject matter jurisdiction, the exclusive jurisdiction of the other state or federal court located\nin the State of Delaware (such courts together with the Chancery Court, the “Chosen Courts”), for the purposes of any suit, action or other\nproceeding arising out of this Agreement or a Transaction. Each party irrevocably and unconditionally waives, on behalf of itself and its\nRepresentatives, and agrees not to plead or claim, any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement\nor a Transaction in the Chosen Courts or that any such action, suit or proceeding brought in any such Chosen Court has been brought in an\ninconvenient forum. Each party irrevocably agrees, on behalf of itself and its Representatives, that service of any process, summons, notice or\ndocument by U.S . registered mail to the address set forth in the heading of this Agreement shall be effective service of process for any action, suit or\nproceeding brought against such party or any of its Representatives.\n15. This Agreement contains the entire agreement between the parties concerning the subject matter hereof, and no modification of this\nAgreement or waiver of the terms and conditions hereof shall be binding upon either party, unless approved in writing by each party. This Agreement\nshall inure to the benefit of the parties hereto, and their successors and permitted assigns. Any assignment of this Agreement by either party without\nthe prior written consent of the other shall be void.\n16. The obligations of the parties under this Agreement shall terminate and be of no further force and effect two years from the date hereof,\nprovided that such termination shall not relieve any party from liability for any breach of this Agreement prior to such termination.\n17. This Agreement may be executed in counterparts (including, without limitation, via facsimile or other electronic image scan), each of\nwhich shall be deemed to be an original, but both of which shall constitute one and the same agreement and shall become effective when one or more\ncounterparts have been signed by each of the parties and delivered to the other party.\n[remainder of page intentionally left blank; signature page follows]\n6\nIf the foregoing correctly sets forth the agreement between you and the Company, please sign and return a copy of this signature page,\nwhereupon this Agreement shall become our binding agreement.\nVery truly yours,\nINSPIRE PHARMACEUTICALS, INC.,\nBy /s/ Adrian Adams\nName: Adrian Adams\nTitle: President & CEO\nAGREED AND ACKNOWLEDGED\nas of the date first written above\nMERCK SHARP & DOHME CORP.\nBy /s/ Richard N. Kender\nName: Richard N. Kender\nTitle: Senior Vice President,\nBusiness Development & Corporate\nLicensing\n7	EX-99.E.3 3 dex99e3.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(3)\n».LOGO\nPRIVATE AND CONFIDENTIAL\nFebruary 23, 2011\nMerck Sharp & Dohme Corp.\nOne Merck Drive\nWhitehouse Station, NJ 08889-0100\nAttention: Richard Kender, Senior Vice President, Business Develop & Corporate Licensing\nLadies and Gentlemen:\nWe understand that Merck Sharp & Dohme Corp. (“you”) has requested information regarding Inspire Pharmaceuticals, Inc. (the “Company ™)\nin connection with your consideration of a possible negotiated transaction between you and the Company pursuant to which you or one of your\ncontrolled or controlling affiliates would acquire the Company (a “Transaction”). The Company is prepared, subject to the terms and conditions of\nthis letter agreement (this “Agreement”), to furnish you with certain confidential and proprietary information concerning the Company on the terms\nset forth herein.\n \n1. As a condition to being furnished information by or on behalf of the Company, you and your Representatives (as defined below) shall treat\nin accordance with this Agreement all information (including, without limitation, oral, written, emails and all other electronic information)\nconcerning the Company or its Representatives that has been or may be furnished to you by or on behalf of the Company or any of its\nRepresentatives in connection with a possible Transaction, and all analyses, compilations, forecasts, studies, memoranda, notes, other materials and\nportions thereof prepared by you or any of your Representatives, or otherwise on your behalf, that contain, reflect or are based upon, in whole or in\npart, any such information, including, without limitation, any such materials stored in electronic format (collectively, the “Evaluation Material”). The\nterm “Evaluation Material” does not include information that (a) is or becomes generally available to the public other than as a result of a disclosure\nby you or any of your Representatives, (b) is or becomes available to you on a non-confidential basis from a source other than the Company or its\nRepresentatives, provided that such source is reasonably believed by you to not be bound by an obligation of confidentiality (whether by agreement,\nduty or otherwise) to the Company or its Representatives or (c) you can demonstrate was independently developed by you without reference to,\nincorporation of, or other use of any Evaluation Material or information from any source that is bound by an obligation of confidentiality (whether\nby agreement, duty or otherwise) to the Company or its Representatives. As used in this Agreement, the term “Representatives” means (i) when used\nin relation to the Company, the Company’s direct and indirect parent, subsidiaries and affiliates and its and their respective directors, officers,\nemployees, agents and advisors (including, without limitation, financial and legal advisors, consultants and accountants) and (ii) when used in\nrelation to you, your subsidiaries and affiliates and your and their respective directors, officers, members, general (but not limited) partners,\nemployees, agents, advisors (including, without limitation, financial and legal advisors, consultants and accountants) and any commercial bank or\nother person engaged by you to provide or arrange potential debt financing in connection with the Transaction (a “Potential Debt Source”). As used\nin this Agreement, the term “person” shall be broadly interpreted to include the media and any corporation, partnership, company, group,\ngovernmental entity, trust, natural person or other entity. As used in this Agreement, the term “affiliate” shall have the meaning ascribed to it in Rule\n12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).\n \n \n \n2. In consideration of being furnished Evaluation Material, you and your Representatives shall keep all Evaluation Material confidential, and\nyou and your Representatives shall not disclose Evaluation Material to any other person, provided that (a) you may disclose Evaluation Material as\nrequired by applicable law, regulation or legal process and (b) you may disclose Evaluation Material to any of your Representatives who need to\nknow such Evaluation Material for the sole purpose of evaluating a Transaction on your behalf if prior to any such disclosure (i) you advise such\nRepresentative of the confidential nature of the Evaluation Material and the terms of this Agreement, (ii) such Representative agrees with you to\nkeep the Evaluation Material confidential in accordance with the terms hereof and to observe the other terms of this Agreement and (iii) in the case\nof a Representative that is a Potential Debt Source, such Representative agrees in a writing to the Company to be bound by the terms of this\nAgreement to the same extent as if it were a party hereto. You and your Representatives shall not provide any Evaluation Material to any potential\nequity financing source or other co-investor without the Company’s prior written consent. In the event that the Company provides such consent with\nrespect to a potential equity financing source or other co-investor, neither you nor your Representatives shall provide any Evaluation Material to\nsuch person unless and until such person has executed and delivered to the Company a letter agreement that is substantially identical to this\nAgreement. You and your Representatives shall not enter into any agreement or arrangement with any potential equity financing source or other co-\ninvestor regarding the provision of equity financing or other co-investment, nor shall you or any of your Representatives enter into any discussions\nwith any such person regarding the provision of any equity financing or other co-investment, in each case without the prior written consent of the\nCompany. Evaluation Material shall be used by you and your Representatives solely for the purpose of evaluating a Transaction and shall not be\nused for any other purpose whatsoever. This Agreement shall apply to your Representatives as if they were direct parties hereto and you shall be\nresponsible for any breach of this Agreement by your Representatives, provided, that you shall not be responsible for any breach of this Agreement\nby any such Representative who has agreed in writing with the Company to be directly bound by the terms of this Agreement. Neither you nor any\nof your Representatives shall enter into any exclusivity, “lock-up”, “dry-up” or other agreement or arrangement, whether written or oral, with any\npotential debt financing source that does or could reasonably be expected to directly or indirectly limit, restrict, restrain or otherwise impair the\nability of such potential financing source to act as a financing source to any other person considering a transaction involving the Company.\n3. In addition, except as required by applicable law, regulation or legal process, neither you nor any of your Representatives shall disclose to\nany person (except, if and to the extent permitted by the immediately preceding paragraph, to your Representatives and any potential equity\nfinancing source or other co-investor) (a) that Evaluation Material has been requested by or furnished or made available to you or your\nRepresentatives, (b) the fact that this Agreement exists or the terms hereof, (c) that you are considering a Transaction, (d) that investigations,\ndiscussions or negotiations are taking place concerning a Transaction or (e) any of the terms, conditions or other facts or information with respect to\na Transaction or any other potential similar transaction involving the Company, including, without limitation, the status or termination thereof.\n4. In the event that you or any of your Representatives are required by applicable law, regulation or legal process (including, without\nlimitation, by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other legal process) to\ndisclose any Evaluation Material or any information of the type described in the immediately preceding paragraph, you shall provide the Company\nwith prompt prior written notice of such requirement. You and your Representatives shall also, to the extent legally permissible, provide the\nCompany as promptly as practicable with a description of the information that may be required to be disclosed (and, if applicable, the text of the\ndisclosure itself) and reasonably cooperate (at Company’s expense) with the Company to the extent it may seek to limit such disclosure, including, if\nrequested, by taking all reasonable steps to resist or narrow any such disclosure or to obtain a protective order or other remedy with respect thereto.\nIf a protective order or other remedy is not obtained and disclosure is legally required, you and your applicable Representatives shall (a) disclose\nsuch information only to the extent required in the opinion of your or your applicable Representatives’ outside counsel and (b) give advance notice\nto the Company of the information to be actually disclosed as far in advance as is reasonably possible. In any such event, you and your applicable\nRepresentatives shall use reasonable efforts to ensure that all Evaluation Material\n2\nand all information of the type described in the immediately preceding paragraph that is so disclosed is accorded confidential treatment by the\nrecipient thereof.\n5. In the event that you determine not to proceed with a Transaction, you shall promptly inform the Company of that decision and, in that case\nor at any other time upon the request of the Company (in its sole discretion), you and your Representatives shall promptly deliver to the Company or\ndestroy, at your election, all Evaluation Material, including all notes relating thereto, without retaining any copy thereof. If requested by the\nCompany, you shall certify to the Company that all such material has been so delivered or destroyed in compliance herewith. Notwithstanding the\ndelivery or destruction of the Evaluation Material required by this paragraph, any and all duties and obligations existing under this Agreement shall\nremain in full force and effect. Notwithstanding the foregoing or any delivery or destruction of any Evaluation Material, your Representatives that\nare accounting firms may retain solely for compliance purposes copies of the Evaluation Material in their possession in accordance with policies and\nprocedures implemented by such persons in order to comply with applicable law, regulation or professional standards, provided, that any Evaluation\nMaterial so retained shall continue to be subject to the terms of this Agreement.\n6. You acknowledge that, in your and your Representatives’ examination of the Evaluation Material, you and your Representatives will have\naccess to material, non-public information, and that you are aware, and shall advise your Representatives who receive Evaluation Material or are\notherwise aware of the subject matter of this Agreement, that state and Federal laws, including, without limitation, Federal securities laws, impose\nrestrictions on the dissemination of such information and trading in securities when in possession of such information.\n7. For a period of 12 months from the date hereof, you shall not, nor shall you permit any of your Representatives to, directly or indirectly,\n(a) engage in any discussion regarding the Company or any of its affiliates with any supplier, vendor, customer or other person with whom the\nCompany has a relationship, other than in the ordinary course of your or your applicable Representative’s business consistent with past practice or\n(b) solicit for employment or hire any named officer or employee at the level of vice president or above of the Company or any of its subsidiaries or\naffiliates that you or any of your Representatives in connection with your consideration of a Transaction hereunder have discussions with or first\nobtain information with respect to, provided that this clause (b) shall not preclude you or any of your Representatives from hiring any such officer or\nemployee who (i) has had his or her employment terminated by the Company or any of its subsidiaries or affiliates prior to commencement of\nemployment discussions between you or your applicable Representative and such officer or employee, or (ii) responds to any general solicitation\nperformed by you or your applicable Representative that is not targeted at the Company or any of its subsidiaries or affiliates.\n8. Goldman Sachs & Co. (“Goldman”) shall have exclusive responsibility for arranging appropriate contacts for due diligence and other\npurposes regarding your consideration of a possible Transaction. Unless otherwise expressly agreed to in writing by the Company, all\ncommunications regarding a Transaction, requests for information concerning the Company or its subsidiaries or affiliates or a Transaction, notices\nunder this Agreement and questions regarding procedures in connection with a Transaction shall be submitted or directed exclusively to the\nrepresentatives of Goldman specifically identified to you by Goldman as contacts with respect to a Transaction. Under no circumstances shall you or\nany of your Representatives directly communicate with any director, officer or other employee of the Company or any of its subsidiaries or affiliates\nregarding any Evaluation Material or a Transaction or any other matter in connection therewith (other than during any management presentation, site\nvisit or other meeting or conference call pre-arranged through Goldman).\n9. Neither the Company nor any of its Representatives makes any representations or warranties, express or implied, with respect to the\naccuracy or completeness of the Evaluation Material, including, without limitation, any forecasts, projections or other forward-looking information\nincluded therein. You agree that, other than as may be set forth in any definitive agreement with respect to a Transaction, neither the Company nor its\nRepresentatives shall have any liability whatsoever to you or any of your Representatives, including, without limitation, in contract, tort or under\nFederal or state securities laws, relating to or resulting from the use of the\n3\nEvaluation Material by you or your Representatives or any errors therein or omissions therefrom. You and your Representatives are not entitled to\nrely on any Evaluation Material and only such express representations and warranties regarding Evaluation Material as may be made to you in a\ndefinitive written agreement relating to a Transaction, if any, shall have any legal effect, subject to the terms and conditions of such agreement.\n10. Each party agrees that no contract or agreement providing for a Transaction shall exist, directly or indirectly, unless and until a definitive\nwritten agreement with respect to a Transaction has been executed and delivered by both the Company and you or one of your affiliates. Each party\nalso agrees that unless and until a definitive written agreement with respect to a Transaction has been executed and delivered by the Company and\nyou or one of your affiliates, neither you nor the Company, nor any subsidiary or affiliate of the Company, shall be under any legal obligation of any\nkind whatsoever with respect to a Transaction by virtue of this Agreement (except for the matters specifically provided herein) or otherwise or by\nvirtue of any written or oral communications with respect to a Transaction by any of the Company’s or your Representatives. You agree that neither\nthe Company nor any of its Representatives shall be under any obligation to provide you with any Evaluation Material or to supplement or update\nany Evaluation Material previously provided. Nothing contained in this Agreement nor the furnishing of any Evaluation Material hereunder shall be\nconstrued as granting or conferring any rights by license or otherwise in any intellectual property. You further agree that the Company possesses the\nright to, and may, in its sole and absolute discretion and for any or no reason at all, reject any and all proposals made by you or your Representatives\nwith respect to a Transaction, terminate discussions and negotiations with you at any time, and conduct any process for a Transaction as it may\ndetermine (including, without limitation, negotiating with any other potentially interested person and entering into a definitive agreement with any\nother person without any prior notice to you or any of your Representatives).\n11. For a period of 18 months from the date hereof (the “Restricted Period”), unless you are specifically invited in writing in advance by the\nboard of directors or chief executive officer of the Company or Goldman on Company’s behalf, neither you nor any of your affiliates nor any other\nperson acting at your or your affiliates’ direct or indirect instruction shall, in any manner, directly or indirectly, (a) acquire, offer to acquire, agree to\nacquire or make a proposal to acquire, by purchase or otherwise, or borrow, any equity securities, or any direct or indirect rights, options or other\nderivative interests with respect to any equity securities, of the Company or any subsidiary of the Company or of any successor to or person in\ncontrol of the Company, or any assets or property of the Company or any subsidiary of the Company or of any such successor or controlling person\n(except that this restriction shall not apply to acquisitions by you or any benefit plan controlled by you of not more than one percent (in the\naggregate) of the then outstanding shares of a Company’s common stock); (b) make or in any way participate in any “solicitation” of “proxies” (as\nsuch terms are defined in Rule 14a-1 under the Exchange Act, and including any otherwise exempt solicitation pursuant to Rule 14a-2(b) under the\nExchange Act) to vote or deliver a written consent with respect to, or seek to advise or influence any person with respect to the voting of or\ndelivering a written consent with respect to, any voting securities of the Company or any of its subsidiaries (provided, that this clause (b) shall not\nprohibit the delivery by you or any of your Representatives of a revocable proxy or consent in response to a public proxy or consent solicitation\nmade generally to all holders of the Company’s equity securities pursuant to, and in accordance with, the applicable rules and regulations under the\nExchange Act); (c) make any public announcement with respect to, or publicly support, or solicit or submit a proposal for or offer of (with or without\nconditions) any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization, purchase of a material\nportion of the assets or properties of or other similar extraordinary transaction involving the Company or any of its subsidiaries or any of their\nrespective securities; (d) form, join or in any way participate in any “group” (within the meaning of Section 13(d) of the Exchange Act and the rules\nand regulations promulgated thereunder) with respect to any securities of the Company or otherwise in connection with any of the foregoing;\n(e) submit a proposal (including any precatory proposal) to be considered by the stockholders of the Company, or take any action to nominate any\nperson for membership on the board of directors of the Company, or take any action to remove any director from the board of directors of the\nCompany or to change the size or composition of the board of directors of the Company; (f) otherwise act, alone or in concert with others, to seek or\npropose to control or influence the management, board of directors or policies or affairs of the Company or any of its subsidiaries; (g) disclose any\nintention, plan,\nproposal or arrangement inconsistent with any of the foregoing; (h) advise, assist, encourage or direct any other person to do any of the foregoing, or\nact as a financing source for or otherwise invest in any person in connection with such person doing any of the foregoing; (i) take any action that\ncould reasonably be expected to require the Company to make a public announcement regarding the possibility of a Transaction with you or any of\nyour affiliates or any of the other events described in this paragraph; or (j) take any action challenging the validity or enforceability of this paragraph,\nor request the Company amend or waive any provision of this paragraph (including this clause (j)), provided, that (i) you may make confidential\nrequests to the Company to amend or waive any of the limitations set forth in this paragraph, which the Company may accept or reject in its sole\ndiscretion, so long as any such request is made in a manner that does not reasonably require the public disclosure thereof by any person and (ii) your\nchairman or chief executive officer may communicate with the chairman and/or the chief executive officer of Company so long as such\ncommunication is made confidentially and any such request is made in a manner that does not reasonably require the public disclosure thereof by\nany person. Notwithstanding anything in this paragraph to the contrary, if a Fundamental Change Event (as defined below) occurs, you shall have the\nright to make one or more proposals to the Company regarding any of the matters in this paragraph, including, without limitation, to effect a\ntransaction pursuant to which you or your affiliates would acquire a majority of the outstanding voting securities of the Company or all or\nsubstantially all of the assets of the Company and its subsidiaries. A “Fundamental Change Event” means the entry by the Company into a binding\ndefinitive agreement with a third person to effect a purchase, tender or exchange offer, merger or other business combination that, if consummated,\nwould result in such third party owning at least a majority of the outstanding voting securities of the Company or all or substantially all of the assets\nof the Company and its subsidiaries (taken as a whole). You acknowledge that the Evaluation Material is being furnished to you and your\nRepresentatives, in part, in consideration of your agreements in this paragraph.\n \nThe Company represents to you that prior to the date of this Agreement, it has not entered into a confidentiality or similar agreement (taking into\neffect any waivers thereunder and amendments thereto) relating to a possible transaction with the Company as contemplated hereunder that contains\n(i) standstill provisions the duration of which are shorter than the Restricted Period, or (ii) a provision (such provision, a “Public Notice Release\nProvision”) that would permit the counterparty thereto to be released from its standstill obligations thereunder upon the Company announcing\npublicly (other than in connection with the execution of a definitive merger or similar acquisition agreement) that it is seeking purchasers for a\nmajority of its outstanding voting securities or all or substantially all of its and its subsidiaries’ assets. The Company covenants and agrees that if it\nshall hereafter enter into a confidentiality or similar agreement (taking into effect any waivers thereunder and amendments thereto) relating to a\ntransaction with the Company as contemplated hereunder that contains standstill provisions the duration of which are shorter than the Restricted\nPeriod or which contains a Public Notice Release Provision, the Company shall (A) provide written notice thereof to you, (B) agree to reduce the\nduration of the Restricted Period so that it is no longer than the duration of such shorter standstill period, and (C) agree to amend this Agreement to\ninclude a Public Notice Release Provision on terms substantially similar to those set forth in such other confidentiality or similar agreement.\n12. You recognize and acknowledge the competitive value and confidential nature of the Evaluation Material and that the Company and its\naffiliates and its and their subsidiaries would be irreparably harmed if information contained therein or derived therefrom is disclosed to any person\nor used for any purpose, in each case in material breach by you or your Representatives of the terms of this Agreement, or any other material breach\nby you or your Representatives of this Agreement shall otherwise occur. You further understand and agree that monetary remedies would be\ninadequate to protect the Company and its affiliates and its and their subsidiaries against any actual or threatened material breach of this Agreement\nby you or your Representatives, and that Company shall be entitled to an injunction or injunctions to prevent material breaches or threatened\nmaterial breaches by you or your Representatives of this Agreement and to compel specific performance of this Agreement. Such remedies shall not\nbe the exclusive remedy for actual or threatened breaches of this Agreement but shall be in addition to all other remedies available at law or in equity\nto the Company and its affiliates and their respective subsidiaries. No failure or delay by any party hereto in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or\n5\nfurther exercise thereof or the exercise of any other right, power or privilege hereunder. Notwithstanding anything to the contrary in this paragraph,\nCompany agrees and acknowledges that you and your Representatives do not waive the right to contest, and shall not be prohibited from contesting,\nwhether there has been a material breach by you or your Representatives of this Agreement.\n13. If any provision contained in this Agreement or the application thereof to you, the Company, or any other person or circumstance shall be\ninvalid, illegal or unenforceable in any respect under any applicable law as determined by a court of competent jurisdiction, the validity, legality and\nenforceability of the remaining provisions contained in this Agreement, or the application of such provision to such persons or circumstances other\nthan those as to which it has been held invalid, illegal or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired\nor invalidated thereby. In the case of any such determination of invalidity, illegality or unenforceability, the parties hereto shall negotiate in good\nfaith in an effort to agree upon a suitable and equitable substitute provision to effect the original intent of the parties.\n14. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to the\nprinciples of conflict of laws thereof that would require the application of the laws of any other jurisdiction. Each party irrevocably submits, on\nbehalf of itself and its Representatives, to the exclusive jurisdiction of the Chancery Court of the State of Delaware (the “Chancery Court”), or,\nsolely to the extent the Chancery Court does not have subject matter jurisdiction, the exclusive jurisdiction of the other state or federal court located\nin the State of Delaware (such courts together with the Chancery Court, the “Chosen Courts), for the purposes of any suit, action or other\nproceeding arising out of this Agreement or a Transaction. Each party irrevocably and unconditionally waives, on behalf of itself and its\nRepresentatives, and agrees not to plead or claim, any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement\nor a Transaction in the Chosen Courts or that any such action, suit or proceeding brought in any such Chosen Court has been brought in an\ninconvenient forum. Each party irrevocably agrees, on behalf of itself and its Representatives, that service of any process, summons, notice or\ndocument by U.S. registered mail to the address set forth in the heading of this Agreement shall be effective service of process for any action, suit or\nproceeding brought against such party or any of its Representatives.\n15. This Agreement contains the entire agreement between the parties concerning the subject matter hereof, and no modification of this\nAgreement or waiver of the terms and conditions hereof shall be binding upon either party, unless approved in writing by each party. This Agreement\nshall inure to the benefit of the parties hereto, and their successors and permitted assigns. Any assignment of this Agreement by either party without\nthe prior written consent of the other shall be void.\n16. The obligations of the parties under this Agreement shall terminate and be of no further force and effect two years from the date hereof,\nprovided that such termination shall not relieve any party from liability for any breach of this Agreement prior to such termination.\n17. This Agreement may be executed in counterparts (including, without limitation, via facsimile or other electronic image scan), each of\nwhich shall be deemed to be an original, but both of which shall constitute one and the same agreement and shall become effective when one or more\ncounterparts have been signed by each of the parties and delivered to the other party.\n[remainder of page intentionally left blank; signature page follows]\n6\nIf the foregoing correctly sets forth the agreement between you and the Company, please sign and return a copy of this signature page,\nwhereupon this Agreement shall become our binding agreement.\nVery truly yours,\nINSPIRE PHARMACEUTICALS, INC,,\nBy /s/ Adrian Adams\nName: Adrian Adams\nTitle: President & CEO\nAGREED AND ACKNOWLEDGED\nas of the date first written above\nMERCK SHARP & DOHME CORP.\nBy /s/ Richard N. Kender\nName: Richard N. Kender\nTitle:  Senior Vice President,\nBusiness Development & Corporate\nLicensing	EX-99.E.3 3 dex99e3.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(3)\nALOGO\nPRIVATE AND CONFIDENTIAL\nFebruary 23, 2011\nMerck Sharp & Dohme Corp.\nOne Merck Drive\nWhitehouse Station, NJ 08889-0100\nAttention: Richard Kender, Senior Vice President, Business Develop & Corporate Licensing\nLadies and Gentlemen:\nWe understand that Merck Sharp & Dohme Corp. ("you") has requested information regarding Inspire Pharmaceuticals, Inc. (the "Company.")\nin connection with your consideration of a possible negotiated transaction between you and the Company pursuant to which you or one of your\ncontrolled or controlling affiliates would acquire the Company (a "Transaction"). The Company is prepared, subject to the terms and conditions of\nthis letter agreement (this "Agreement"), to furnish you with certain confidential and proprietary information concerning the Company on the terms\nset forth herein.\n1. As a condition to being furnished information by or on behalf of the Company, you and your Representatives (as defined below) shall treat\nin\naccordance with this Agreement all information (including, without limitation, oral, written, emails and all other electronic information)\nconcerning the Company or its Representatives that has been or may be furnished to you by or on behalf of the Company or any of its\nRepresentatives in connection with a possible Transaction, and all analyses, compilations, forecasts, studies, memoranda, notes, other materials and\nportions thereof prepared by you or any of your Representatives, or otherwise on your behalf, that contain, reflect or are based upon, in whole or in\npart, any such information, including, without limitation, any such materials stored in electronic format (collectively, the "Evaluation Material") The\nterm "Evaluation Material" does not include information that (a) is or becomes generally available to the public other than as a result of a disclosure\nby you or any of your Representatives, (b) is or becomes available to you on a non-confidential basis from a source other than the Company or its\nRepresentatives, provided that such source is reasonably believed by you to not be bound by an obligation of confidentiality (whether by agreement,\nduty or otherwise) to the Company or its Representatives or (c) you can demonstrate was independently developed by you without reference to,\nincorporation of, or other use of any Evaluation Material or information from any source that is bound by an obligation of confidentiality (whether\nby agreement, duty or otherwise) to the Company or its Representatives. As used in this Agreement, the term "Representatives" means (i) when used\nin relation to the Company, the Company's direct and indirect parent, subsidiaries and affiliates and its and their respective directors, officers,\nemployees, agents and advisors (including, without limitation financial and legal advisors, consultants and accountants) and (ii) when used\nin\nrelation to you, your subsidiaries and affiliates and your and their respective directors, officers, members, general (but not limited) partners,\nemployees, agents, advisors (including, without limitation, financial and legal advisors, consultants and accountants) and any commercial bank or\nother person engaged by you to provide or arrange potential debt financing in connection with the Transaction (a "Potential Debt Source"). As used\nin this Agreement, the term "person" shall be broadly interpreted to include the media and any corporation, partnership, company, group,\ngovernmental entity, trust, natural person or other entity. As used in this Agreement, the term "affiliate" shall have the meaning ascribed to it in Rule\n12b-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Ac\n2. In consideration of being furnished Evaluation Material, you and your Representatives shall keep all Evaluation Material confidential, and\nyou and your Representatives shall not disclose Evaluation Material to any other person, provided that (a) you may disclose Evaluation Material\nas\nrequired by applicable law, regulation or legal process and (b) you may disclose Evaluation Material to any of your Representatives who need to\nknow such Evaluation Material for the sole purpose of evaluating a Transaction on your behalf if prior to any such disclosure (i) you advise such\nRepresentative of the confidential nature of the Evaluation Material and the terms of this Agreement, (ii) such Representative agrees with you to\nkeep the Evaluation Material confidential in accordance with the terms hereof and to observe the other terms of this Agreement and (iii) in the case\nof a Representative that is a Potential Debt Source, such Representative agrees in a writing to the Company to be bound by the terms of this\nAgreement to the same extent as if it were a party hereto. You and your Representatives shall not provide any Evaluation Material to any potential\nequity financing source or other co-investor without the Company's prior written consent. In the event that the Company provides such consent with\nrespect to a potential equity financing source or other co-investor, neither you nor your Representatives shall provide any Evaluation Material to\nsuch person unless and until such person has executed and delivered to the Company a letter agreement that is substantially identical to this\nAgreement. You and your Representatives shall not enter into any agreement or arrangement with any potential equity financing source or other co-\ninvestor regarding the provision of equity financing or other co-investment, nor shall you or any of your Representatives enter into any discussions\nwith any such person regarding the provision of any equity financing or other co-investment, in each case without the prior written consent of the\nCompany. Evaluation Material shall be used by you and your Representatives solely for the purpose of evaluating a Transaction and shall not be\nused for any other purpose whatsoever. This Agreement shall apply to your Representatives as if they were direct parties hereto and you shall\nbe\nresponsible\nfor\nany\nbreach of this Agreement by your Representatives, provided, that you shall not be responsible for any breach of this Agreement\nby any such Representative who has agreed in writing with the Company to be directly bound by the terms of this Agreement. Neither you nor any\nof your Representatives shall enter into any exclusivity, "lock-up", "dry-up" or other agreement or arrangement, whether written or oral, with any\npotential debt financing source that does or could reasonably be expected to directly or indirectly limit, restrict, restrain or otherwise impair the\nability of such potential financing source to act as a financing source to any other person considering a transaction involving the Company.\n3. In addition, except as required by applicable law, regulation or legal process, neither you nor any of your Representatives shall disclose to\nany person (except, if and to the extent permitted by the immediately preceding paragraph, to your Representatives and any potential equity\nfinancing source or other co-investor) (a) that Evaluation Material has been requested by or furnished or made available to you or your\nRepresentatives, (b) the fact that this Agreement exists or the terms hereof, (c) that you are considering a Transaction, (d) that investigations,\ndiscussions or negotiations are taking place concerning a Transaction or (e) any of the terms, conditions or other facts or information with respect\nto\na Transaction or any other potential similar transaction involving the Company, including, without limitation, the status or termination thereof.\n4. In the event that you or any of your Representatives are required by applicable law, regulation or legal process (including, without\nlimitation, by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other legal process)\nto\ndisclose any Evaluation Material or any information of the type described in the immediately preceding paragraph, you shall provide the Company\nwith prompt prior written notice of such requirement. You and your Representatives shall also, to the extent legally permissible, provide the\nCompany as promptly as practicable with a description of the information that may be required to be disclosed (and, if applicable, the text of\nthe\ndisclosure itself) and reasonably cooperate (at Company's expense) with the Company to the extent it may seek to limit such disclosure, including, if\nrequested, by taking all reasonable steps to resist or narrow any such disclosure or to obtain a protective order or other remedy with respect thereto.\nIf a protective order or other remedy is not obtained and disclosure is legally required, you and your applicable Representatives shall (a) disclose\nsuch information only to the extent required in the opinion of your or your applicable Representatives' outside counsel and (b) give advance notice\nto the Company of the information to be actually disclosed as far in advance as is reasonably possible. In any such event, you and your applicable\nRepresentatives shall use reasonable efforts to ensure that all Evaluation Material\n2\nand all information of the type described in the immediately preceding paragraph that is so disclosed is accorded confidential treatment by\nthe\nrecipient thereof.\n5. In the event that you determine not to proceed with a Transaction, you shall promptly inform the Company of that decision and, in that case\nor at any other time upon the request of the Company (in its sole discretion), you and your Representatives shall promptly deliver to the Company or\ndestroy, at your election, all Evaluation Material, including all notes relating thereto, without retaining any copy thereof. If requested by the\nCompany, you shall certify to the Company that all such material has been so delivered or destroyed in compliance herewith. Notwithstanding the\ndelivery or destruction of the Evaluation Material required by this paragraph, any and all duties and obligations existing under this Agreement shall\nremain in full force and effect. Notwithstanding the foregoing or any delivery or destruction of any Evaluation Material, your Representatives that\nare accounting firms may retain solely for compliance purposes copies of the Evaluation Material in their possession in accordance with policies and\nprocedures implemented by such persons in order to comply with applicable law, regulation or professional standards, provided, that any Evaluation\nMaterial so retained shall continue to be subject to the terms of this Agreement.\n6. You acknowledge that, in your and your Representatives' examination of the Evaluation Material, you and your Representatives will have\naccess to material, non-public information, and that you are aware, and shall advise your Representatives who receive Evaluation Material or are\notherwise aware of the subject matter of this Agreement, that state and Federal laws, including, without limitation, Federal securities laws, impose\nrestrictions on the dissemination of such information and trading in securities when in possession of such information.\n7. For a period of 12 months from the date hereof, you shall not, nor shall you permit any of your Representatives to, directly or indirectly,\n(a) engage in any discussion regarding the Company or any of its affiliates with any supplier, vendor, customer or other person with whom the\nCompany\nhas\na\nrelationship,\nother\nthan\nin\nthe\nordinary\ncourse\nof\nyour\nor\nyour\napplicable\nRepresentative's\nbusiness\nconsistent\nwith\npast\npractice\nor\n(b) solicit for employment or hire any named officer or employee at the level of vice president or above of the Company or any of its subsidiaries or\naffiliates that you or any of your Representatives in connection with your consideration of a Transaction hereunder have discussions with or first\nobtain information with respect to, provided that this clause (b) shall not preclude you or any of your Representatives from hiring any such officer\nor\nemployee who (i) has had his or her employment terminated by the Company or any of its subsidiaries or affiliates prior to commencement of\nemployment discussions between you or your applicable Representative and such officer or employee, or (ii) responds to any general solicitation\nperformed by you or your applicable Representative that is not targeted at the Company or any of its subsidiaries or affiliates.\n8. Goldman Sachs & Co. ("Goldman") shall have exclusive responsibility for arranging appropriate contacts for due diligence and other\npurposes regarding your consideration of a possible Transaction. Unless otherwise expressly agreed to in writing by the Company, all\ncommunications regarding a Transaction, requests for information concerning the Company or its subsidiaries or affiliates or a Transaction, notices\nunder this Agreement and questions regarding procedures in connection with a Transaction shall be submitted or directed exclusively to the\nrepresentatives of Goldman specifically identified to you by Goldman as contacts with respect to a Transaction. Under no circumstances shall you or\nany of your Representatives directly communicate with any director, officer or other employee of the Company or any of its subsidiaries or affiliates\nregarding any Evaluation Material or a Transaction or any other matter in connection therewith (other than during any management presentation, site\nvisit or other meeting or conference call pre-arranged through Goldman).\n9.\nNeither the Company nor any of its Representatives makes any representations or warranties, express or implied, with respect to the\naccuracy or completeness of the Evaluation Material, including, without limitation, any forecasts, projections or other forward-looking information\nincluded therein. You agree that, other than as may be set forth in any definitive agreement with respect to a Transaction, neither the Company nor its\nRepresentatives shall have any liability whatsoever to you or any of your Representatives, including, without limitation, in contract, tort or under\nFederal or state securities laws, relating to or resulting from the use of the\n3\nEvaluation Material by you or your Representatives or any errors therein or omissions therefrom. You and your Representatives are not entitled\nto\nrely on any Evaluation Material and only such express representations and warranties regarding Evaluation Material as may be made to you in a\ndefinitive written agreement relating to a Transaction, if any, shall have any legal effect, subject to the terms and conditions of such agreement.\n10. Each party agrees that no contract or agreement providing for a Transaction shall exist, directly or indirectly, unless and until a definitive\nwritten\nagreement\nwith respect to a Transaction has been executed and delivered by both the Company and you or one of your affiliates. Each\nparty\nalso agrees that unless and until a definitive written agreement with respect to a Transaction has been executed and delivered by the Company and\nyou or one of your affiliates, neither you nor the Company, nor any subsidiary or affiliate of the Company, shall be under any legal obligation of any\nkind whatsoever with respect to a Transaction by virtue of this Agreement (except for the matters specifically provided herein) or otherwise or by\nvirtue of any written or oral communications with respect to a Transaction by any of the Company's or your Representatives. You agree that neither\nthe Company nor any of its Representatives shall be under any obligation to provide you with any Evaluation Material or to supplement or update\nany Evaluation Material previously provided Nothing contained in this Agreement nor the furnishing of any Evaluation Material hereunder shall be\nconstrued as granting or conferring any rights by license or otherwise in any intellectual property. You further agree that the Company possesses the\nright to, and may, in its sole and absolute discretion and for any or no reason at all, reject any and all proposals made by you or your Representatives\nwith respect to a Transaction, terminate discussions and negotiations with you at any time, and conduct any process for a Transaction as it may\ndetermine (including, without limitation, negotiating with any other potentially interested person and entering into a definitive agreement with any\nother person without any prior notice to you or any of your Representatives).\n11. For a period of 18 months from the date hereof (the "Restricted Period"), unless you are specifically invited in writing in advance by the\nboard of directors or chief executive officer of the Company or Goldman on Company's behalf, neither you nor any of your affiliates nor any other\nperson acting at your or your affiliates' direct or indirect instruction shall, in any manner, directly or indirectly, (a) acquire, offer to acquire, agree\nto\nacquire or make a proposal to acquire, by purchase or otherwise, or borrow, any equity securities, or any direct or indirect rights, options or other\nderivative interests with respect to any equity securities, of the Company or any subsidiary of the Company or of any successor to or person in\ncontrol of the Company, or any assets or property of the Company or any subsidiary of the Company or of any such successor or controlling person\n(except that this restriction shall not apply to acquisitions by you or any benefit plan controlled by you of not more than one percent (in the\naggregate) of the then outstanding shares of a Company's common stock); (b) make or in any way participate in any "solicitation" of "proxies"\n(as\nsuch terms are defined in Rule 14a-1 under the Exchange Act, and including any otherwise exempt solicitation pursuant to Rule 14a-2(b) under\nthe\nExchange Act) to vote or deliver a written consent with respect to, or seek to advise or influence any person with respect to the voting of or\ndelivering a written consent with respect to, any voting securities of the Company or any of its subsidiaries (provided, that this clause (b) shall not\nprohibit the delivery by you or any of your Representatives of a revocable proxy or consent in response to a public proxy or consent solicitation\nmade generally to all holders of the Company's equity securities pursuant to, and in accordance with, the applicable rules and regulations under the\nExchange Act); (c) make any public announcement with respect to, or publicly support, or solicit or submit a proposal for or offer of (with or\nwithout\nconditions) any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization, purchase of a material\nportion of the assets or properties of or other similar extraordinary transaction involving the Company or any of its subsidiaries or any of their\nrespective securities; (d) form, join or in any way participate in any "group" (within the meaning of Section 13(d) of the Exchange Act and the rules\nand regulations promulgated thereunder) with respect to any securities of the Company or otherwise in connection with any of the foregoing;\n(e) submit a proposal (including any precatory proposal) to be considered by the stockholders of the Company, or take any action to nominate\nany\nperson for membership on the board of directors of the Company, or take any action to remove any director from the board of directors of the\nCompany or to change the size or composition of the board of directors of the Company; (f) otherwise act, alone or in concert with others, to seek\nor\npropose to control or influence the management, board of directors or policies or affairs of the Company or any of its subsidiaries; (g) disclose any\nintention, plan,\n4\nproposal or arrangement inconsistent with any of the foregoing; (h) advise, assist, encourage or direct any other person to do any of the foregoing, or\nact as a financing source for or otherwise invest in any person in connection with such person doing any of the foregoing; (i) take any action that\ncould reasonably be expected to require the Company to make a public announcement regarding the possibility of a Transaction with you or any\nof\nyour affiliates or any of the other events described in this paragraph; or (j) take any action challenging the validity or enforceability of this paragraph,\nor request the Company amend or waive any provision of this paragraph (including this clause (j)), provided, that (i) you may make confidential\nrequests to the Company to amend or waive any of the limitations set forth in this paragraph, which the Company may accept or reject in its sole\ndiscretion, so long as any such request is made in a manner that does not reasonably require the public disclosure thereof by any person and (ii) your\nchairman or chief executive officer may communicate with the chairman and/or the chief executive officer of Company so long as such\ncommunication is made confidentially and any such request is made in a manner that does not reasonably require the public disclosure thereof\nby\nany person. Notwithstanding anything in this paragraph to the contrary, if a Fundamental Change Event (as defined below) occurs, you shall have the\nright to make one or more proposals to the Company regarding any of the matters in this paragraph, including, without limitation, to effect\na\ntransaction pursuant to which you or your affiliates would acquire a majority of the outstanding voting securities of the Company or all\nor\nsubstantially all of the assets of the Company and its subsidiaries. A "Fundamental Change Event" means the entry by the Company into a binding\ndefinitive agreement with a third person to effect a purchase, tender or exchange offer, merger or other business combination that, if consummated,\nwould result in such third party owning at least a majority of the outstanding voting securities of the Company or all or substantially all of the assets\nof the Company and its subsidiaries (taken as a whole). You acknowledge that the Evaluation Material is being furnished to you and your\nRepresentatives, in part, in consideration of your agreements in this paragraph.\nThe Company represents to you that prior to the date of this Agreement, it has not entered into a confidentiality or similar agreement (taking into\neffect any waivers thereunder and amendments thereto) relating to a possible transaction with the Company as contemplated hereunder that contains\n(i) standstill provisions the duration of which are shorter than the Restricted Period, or (ii) a provision (such provision, a "Public Notice Release\nProvision") that would permit the counterparty thereto to be released from its standstill obligations thereunder upon the Company announcing\npublicly (other than in connection with the execution of a definitive merger or similar acquisition agreement) that it is seeking purchasers\nfor\na\nmajority of its outstanding voting securities or all or substantially all of its and its subsidiaries' assets. The Company covenants and agrees that if it\nshall hereafter enter into a confidentiality or similar agreement (taking into effect any waivers thereunder and amendments thereto) relating to a\ntransaction with the Company as contemplated hereunder that contains standstill provisions the duration of which are shorter than the Restricted\nPeriod or which contains a Public Notice Release Provision, the Company shall (A) provide written notice thereof to you, (B) agree to reduce the\nduration of the Restricted Period so that it is no longer than the duration of such shorter standstill period, and (C) agree to amend this Agreement\nto\ninclude a Public Notice Release Provision on terms substantially similar to those set forth in such other confidentiality or similar agreement.\n12. You recognize and acknowledge the competitive value and confidential nature of the Evaluation Material and that the Company and its\naffiliates and its and their subsidiaries would be irreparably harmed if information contained therein or derived therefrom is disclosed to any person\nor used for any purpose, in each case in material breach by you or your Representatives of the terms of this Agreement, or any other material breach\nby you or your Representatives of this Agreement shall otherwise occur. You further understand and agree that monetary remedies would be\ninadequate to protect the Company and its affiliates and its and their subsidiaries against any actual or threatened material breach of this Agreement\nby you or your Representatives, and that Company shall be entitled to an injunction or injunctions to prevent material breaches or threatened\nmaterial breaches by you or your Representatives of this Agreement and to compel specific performance of this Agreement. Such remedies shall\nnot\nbe\nthe\nexclusive remedy for actual or threatened breaches of this Agreement but shall be in addition to all other remedies available at law or in equity\nto the Company and its affiliates and their respective subsidiaries. No failure or delay by any party hereto in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or\n5\nfurther exercise thereof or the exercise of any other right, power or privilege hereunder. Notwithstanding anything to the contrary in this paragraph,\nCompany agrees and acknowledges that you and your Representatives do not waive the right to contest, and shall not be prohibited from contesting,\nwhether there has been a material breach by you or your Representatives of this Agreement.\n13. If any provision contained in this Agreement or the application thereof to you, the Company, or any other person or circumstance shall be\ninvalid,\nillegal\nor\nunenforceable\nin\nany\nrespect\nunder\nany\napplicable\nlaw\nas\ndetermined\nby\na\ncourt\nof\ncompetent\njurisdiction,\nthe\nvalidity,\nlegality\nand\nenforceability of the remaining provisions contained in this Agreement, or the application of such provision to such persons or circumstances other\nthan those as to which it has been held invalid, illegal or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired\nor invalidated thereby. In the case of any such determination of invalidity, illegality or unenforceability, the parties hereto shall negotiate in good\nfaith in an effort to agree upon a suitable and equitable substitute provision to effect the original intent of the parties.\n14. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to\nthe\nprinciples of conflict of laws thereof that would require the application of the laws of any other jurisdiction. Each party irrevocably submits, on\nbehalf of itself and its Representatives, to the exclusive jurisdiction of the Chancery Court of the State of Delaware (the "Chancery Court"), or,\nsolely to the extent the Chancery Court does not have subject matter jurisdiction, the exclusive jurisdiction of the other state or federal court located\nin the State of Delaware (such courts together with the Chancery Court, the "Chosen Courts"), for the purposes of any suit, action or other\nproceeding arising out of this Agreement or a Transaction. Each party irrevocably and unconditionally waives, on behalf of itself and its\nRepresentatives, and agrees not to plead or claim, any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement\nor a Transaction in the Chosen Courts or that any such action, suit or proceeding brought in any such Chosen Court has been brought in an\ninconvenient forum. Each party irrevocably agrees, on behalf of itself and its Representatives, that service of any process, summons, notice\nor\ndocument by U.S. registered mail to the address set forth in the heading of this Agreement shal be effective service of process for any action, suit or\nproceeding brought against such party or any of its Representatives.\n15. This Agreement contains the entire agreement between the parties concerning the subject matter hereof, and no modification of this\nAgreement or waiver of the terms and conditions hereof shall be binding upon either party, unless approved in writing by each party. This Agreement\nshall inure to the benefit of the parties hereto, and their successors and permitted assigns. Any assignment of this Agreement by either party without\nthe prior written consent of the other shall be void.\n16. The obligations of the parties under this Agreement shall terminate and be of no further force and effect two years from the date hereof,\nprovided that such termination shall not relieve any party from liability for any breach of this Agreement prior to such termination.\n17. This Agreement may be executed in counterparts (including, without limitation, via facsimile or other electronic image scan), each of\nwhich shall be deemed to be an original, but both of which shall constitute one and the same agreement and shall become effective when one or more\ncounterparts have been signed by each of the parties and delivered to the other party.\n[remainder of page intentionally left blank; signature page follows]\n6\nIf the foregoing correctly sets forth the agreement between you and the Company, please sign and return a copy of this signature page,\nwhereupon this Agreement shall become our binding agreement.\nVery truly yours,\nINSPIRE PHARMACEUTICALS, INC.,\nBy /s/ Adrian Adams\nName: Adrian Adams\nTitle: President & CEO\nAGREED AND ACKNOWLEDGED\nas of the date first written above\nMERCK SHARP & DOHME CORP.\nBy /s/ Richard N. Kender\nName: Richard N. Kender\nTitle: Senior Vice President,\nBusiness Development & Corporate\nLicensing\n7	EX-99.E .3 3 dex99e3.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(3)\nLOGO\nPRIVATE AND CONFIDENTIAL\nFebruary 23, 2011\nMerck Sharp & Dohme Corp.\nOne Merck Drive\nWhitehouse Station, NJ 08889-0100\nAttention: Richard Kender, Senior Vice President, Business Develop & Corporate Licensing\nLadies and Gentlemen:\nWe understand that Merck Sharp & Dohme Corp. (“you”) has requested information regarding Inspire Pharmaceuticals, Inc. (the “Company”)\nin connection with your consideration of a possible negotiated transaction between you and the Company pursuant to which you or one of your\ncontrolled or controlling affiliates would acquire the Company (a “Transaction”). The Company is prepared, subject to the terms and conditions of\nthis letter agreement (this “Agreement”), to furnish you with certain confidential and proprietary information concerning the Company on the terms\nset forth herein.\n1. As a condition to being furnished information by or on behalf of the Company, you and your Representatives (as defined below) shall treat\nin accordance with this Agreement all information (including, without limitation, oral, written, emails and all other electronic information)\nconcerning the Company or its Representatives that has been or may be furnished to you by or on behalf of the Company or any of its\nRepresentatives in connection with a possible Transaction, and all analyses, compilations, forecasts, studies, memoranda, notes, other materials and\nportions thereof prepared by you or any of your Representatives, or otherwise on your behalf, that contain, reflect or are based upon, in whole or in\npart, any such information, including, without limitation, any such materials stored in electronic format (collectively, the “Evaluation Material”). The\nterm “Evaluation Material” does not include information that (a) is or becomes generally available to the public other than as a result of a disclosure\nby you or any of your Representatives, (b) is or becomes available to you on a non-confidential basis from a source other than the Company or its\nRepresentatives, provided that such source is reasonably believed by you to not be bound by an obligation of confidentiality (whether by agreement,\nduty or otherwise) to the Company or its Representatives or (c) you can demonstrate was independently developed by you without reference to,\nincorporation of, or other use of any Evaluation Material or information from any source that is bound by an obligation of confidentiality (whether\nby agreement, duty or otherwise) to the Company or its Representatives. As used in this Agreement, the term “Representatives” means (i) when used\nin relation to the Company, the Company’s direct and indirect parent, subsidiaries and affiliates and its and their respective directors, officers,\nemployees, agents and advisors (including, without limitation, financial and legal advisors, consultants and accountants) and (ii) when used in\nrelation to you, your subsidiaries and affiliates and your and their respective directors, officers, members, general (but not limited) partners,\nemployees, agents, advisors (including, without limitation, financial and legal advisors, consultants and accountants) and any commercial bank or\nother person engaged by you to provide or arrange potential debt financing in connection with the Transaction (a “Potential Debt Source”). As used\nin this Agreement, the term “person” shall be broadly interpreted to include the media and any corporation, partnership, company, group,\ngovernmental entity, trust, natural person or other entity. As used in this Agreement, the term “affiliate” shall have the meaning ascribed to it in Rule\n12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).\n2. In consideration of being furnished Evaluation Material, you and your Representatives shall keep all Evaluation Material confidential, and\nyou and your Representatives shall not disclose Evaluation Material to any other person, provided that (a) you may disclose Evaluation Material as\nrequired by applicable law, regulation or legal process and (b) you may disclose Evaluation Material to any of your Representatives who need to\nknow such Evaluation Material for the sole purpose of evaluating a Transaction on your behalf if prior to any such disclosure (i) you advise such\nRepresentative of the confidential nature of the Evaluation Material and the terms of this Agreement, (ii) such Representative agrees with you to\nkeep the Evaluation Material confidential in accordance with the terms hereof and to observe the other terms of this Agreement and (iii) in the case\nof a Representative that is a Potential Debt Source, such Representative agrees in a writing to the Company to be bound by the terms of this\nAgreement to the same extent as if it were a party hereto. You and your Representatives shall not provide any Evaluation Material to any potential\nequity financing source or other co-investor without the Company’s prior written consent. In the event that the Company provides such consent with\nrespect to a potential equity financing source or other co-investor, neither you nor your Representatives shall provide any Evaluation Material to\nsuch person unless and until such person has executed and delivered to the Company a letter agreement that is substantially identical to this\nAgreement. You and your Representatives shall not enter into any agreement or arrangement with any potential equity financing source or other co-\ninvestor regarding the provision of equity financing or other co-investment, nor shall you or any of your Representatives enter into any discussions\nwith any such person regarding the provision of any equity financing or other co-investment, in each case without the prior written consent of the\nCompany. Evaluation Material shall be used by you and your Representatives solely for the purpose of evaluating a Transaction and shall not be\nused for any other purpose whatsoever. This Agreement shall apply to your Representatives as if they were direct parties hereto and you shall be\nresponsible for any breach of this Agreement by your Representatives, provided, that you shall not be responsible for any breach of this Agreement\nby any such Representative who has agreed in writing with the Company to be directly bound by the terms of this Agreement. Neither you nor any\nof your Representatives shall enter into any exclusivity, “lock-up”, “dry-up” or other agreement or arrangement, whether written or oral, with any\npotential debt financing source that does or could reasonably be expected to directly or indirectly limit, restrict, restrain or otherwise impair the\nability of such potential financing source to act as a financing source to any other person considering a transaction involving the Company.\n3. In addition, except as required by applicable law, regulation or legal process, neither you nor any of your Representatives shall disclose to\nany person (except, if and to the extent permitted by the immediately preceding paragraph, to your Representatives and any potential equity\nfinancing source or other co-investor) (a) that Evaluation Material has been requested by or furnished or made available to you or your\nRepresentatives, (b) the fact that this Agreement exists or the terms hereof, (c) that you are considering a Transaction, (d) that investigations,\ndiscussions or negotiations are taking place concerning a Transaction or (e) any of the terms, conditions or other facts or information with respect to\na Transaction or any other potential similar transaction involving the Company, including, without limitation, the status or termination thereof.\n4. In the event that you or any of your Representatives are required by applicable law, regulation or legal process (including, without\nlimitation, by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other legal process) to\ndisclose any Evaluation Material or any information of the type described in the immediately preceding paragraph, you shall provide the Company\nwith prompt prior written notice of such requirement. You and your Representatives shall also, to the extent legally permissible, provide the\nCompany as promptly as practicable with a description of the information that may be required to be disclosed (and, if applicable, the text of the\ndisclosure itself) and reasonably cooperate (at Company’s expense) with the Company to the extent it may seek to limit such disclosure, including, if\nrequested, by taking all reasonable steps to resist or narrow any such disclosure or to obtain a protective order or other remedy with respect thereto.\nIf a protective order or other remedy is not obtained and disclosure is legally required, you and your applicable Representatives shall (a) disclose\nsuch information only to the extent required in the opinion of your or your applicable Representatives’ outside counsel and (b) give advance notice\nto the Company of the information to be actually disclosed as far in advance as is reasonably possible. In any such event, you and your applicable\nRepresentatives shall use reasonable efforts to ensure that all Evaluation Material\n2\nand all information of the type described in the immediately preceding paragraph that is so disclosed is accorded confidential treatment by the\nrecipient thereof.\n5. In the event that you determine not to proceed with a Transaction, you shall promptly inform the Company of that decision and, in that case\nor at any other time upon the request of the Company (in its sole discretion), you and your Representatives shall promptly deliver to the Company or\ndestroy, at your election, all Evaluation Material, including all notes relating thereto, without retaining any copy thereof. If requested by the\nCompany, you shall certify to the Company that all such material has been so delivered or destroyed in compliance herewith. Notwithstanding the\ndelivery or destruction of the Evaluation Material required by this paragraph, any and all duties and obligations existing under this Agreement shall\nremain in full force and effect. Notwithstanding the foregoing or any delivery or destruction of any Evaluation Material, your Representatives that\nare accounting firms may retain solely for compliance purposes copies of the Evaluation Material in their possession in accordance with policies and\nprocedures implemented by such persons in order to comply with applicable law, regulation or professional standards, provided, that any Evaluation\nMaterial so retained shall continue to be subject to the terms of this Agreement.\n6. You acknowledge that, in your and your Representatives’ examination of the Evaluation Material, you and your Representatives will have\naccess to material, non-public information, and that you are aware, and shall advise your Representatives who receive Evaluation Material or are\notherwise aware of the subject matter of this Agreement, that state and Federal laws, including, without limitation, Federal securities laws, impose\nrestrictions on the dissemination of such information and trading in securities when in possession of such information.\n7. For a period of 12 months from the date hereof, you shall not, nor shall you permit any of your Representatives to, directly or indirectly,\n(a) engage in any discussion regarding the Company or any of its affiliates with any supplier, vendor, customer or other person with whom the\nCompany has a relationship, other than in the ordinary course of your or your applicable Representative’s business consistent with past practice or\n(b) solicit for employment or hire any named officer or employee at the level of vice president or above of the Company or any of its subsidiaries or\naffiliates that you or any of your Representatives in connection with your consideration of a Transaction hereunder have discussions with or first\nobtain information with respect to, provided that this clause (b) shall not preclude you or any of your Representatives from hiring any such officer or\nemployee who (i) has had his or her employment terminated by the Company or any of its subsidiaries or affiliates prior to commencement of\nemployment discussions between you or your applicable Representative and such officer or employee, or (ii) responds to any general solicitation\nperformed by you or your applicable Representative that is not targeted at the Company or any of its subsidiaries or affiliates.\n8. Goldman Sachs & Co. (“Goldman”) shall have exclusive responsibility for arranging appropriate contacts for due diligence and other\npurposes regarding your consideration of a possible Transaction. Unless otherwise expressly agreed to in writing by the Company, all\ncommunications regarding a Transaction, requests for information concerning the Company or its subsidiaries or affiliates or a Transaction, notices\nunder this Agreement and questions regarding procedures in connection with a Transaction shall be submitted or directed exclusively to the\nrepresentatives of Goldman specifically identified to you by Goldman as contacts with respect to a Transaction. Under no circumstances shall you or\nany of your Representatives directly communicate with any director, officer or other employee of the Company or any of its subsidiaries or affiliates\nregarding any Evaluation Material or a Transaction or any other matter in connection therewith (other than during any management presentation, site\nvisit or other meeting or conference call pre-arranged through Goldman).\n9. Neither the Company nor any of its Representatives makes any representations or warranties, express or implied, with respect to the\naccuracy or completeness of the Evaluation Material, including, without limitation, any forecasts, projections or other forward-looking information\nincluded therein. You agree that, other than as may be set forth in any definitive agreement with respect to a Transaction, neither the Company nor its\nRepresentatives shall have any liability whatsoever to you or any of your Representatives, including, without limitation, in contract, tort or under\nFederal or state securities laws, relating to or resulting from the use of the\n3\nEvaluation Material by you or your Representatives or any errors therein or omissions therefrom. You and your Representatives are not entitled to\nrely on any Evaluation Material and only such express representations and warranties regarding Evaluation Material as may be made to you in a\ndefinitive written agreement relating to a Transaction, if any, shall have any legal effect, subject to the terms and conditions of such agreement.\n10. Each party agrees that no contract or agreement providing for a Transaction shall exist, directly or indirectly, unless and until a definitive\nwritten agreement with respect to a Transaction has been executed and delivered by both the Company and you or one of your affiliates. Each party\nalso agrees that unless and until a definitive written agreement with respect to a Transaction has been executed and delivered by the Company and\nyou or one of your affiliates, neither you nor the Company, nor any subsidiary or affiliate of the Company, shall be under any legal obligation of any\nkind whatsoever with respect to a Transaction by virtue of this Agreement (except for the matters specifically provided herein) or otherwise or by\nvirtue of any written or oral communications with respect to a Transaction by any of the Company’s or your Representatives. You agree that neither\nthe Company nor any of its Representatives shall be under any obligation to provide you with any Evaluation Material or to supplement or update\nany Evaluation Material previously provided. Nothing contained in this Agreement nor the furnishing of any Evaluation Material hereunder shall be\nconstrued as granting or conferring any rights by license or otherwise in any intellectual property. You further agree that the Company possesses the\nright to, and may, in its sole and absolute discretion and for any or no reason at all, reject any and all proposals made by you or your Representatives\nwith respect to a Transaction, terminate discussions and negotiations with you at any time, and conduct any process for a Transaction as it may\ndetermine (including, without limitation, negotiating with any other potentially interested person and entering into a definitive agreement with any\nother person without any prior notice to you or any of your Representatives).\n11. For a period of 18 months from the date hereof (the “Restricted Period”), unless you are specifically invited in writing in advance by the\nboard of directors or chief executive officer of the Company or Goldman on Company’s behalf, neither you nor any of your affiliates nor any other\nperson acting at your or your affiliates’ direct or indirect instruction shall, in any manner, directly or indirectly, (a) acquire, offer to acquire, agree to\nacquire or make a proposal to acquire, by purchase or otherwise, or borrow, any equity securities, or any direct or indirect rights, options or other\nderivative interests with respect to any equity securities, of the Company or any subsidiary of the Company or of any successor to or person in\ncontrol of the Company, or any assets or property of the Company or any subsidiary of the Company or of any such successor or controlling person\n(except that this restriction shall not apply to acquisitions by you or any benefit plan controlled by you of not more than one percent (in the\naggregate) of the then outstanding shares of a Company’s common stock); (b) make or in any way participate in any “solicitation” of “proxies” (as\nsuch terms are defined in Rule 14a-1 under the Exchange Act, and including any otherwise exempt solicitation pursuant to Rule 14a-2(b) under the\nExchange Act) to vote or deliver a written consent with respect to, or seek to advise or influence any person with respect to the voting of or\ndelivering a written consent with respect to, any voting securities of the Company or any of its subsidiaries (provided, that this clause (b) shall not\nprohibit the delivery by you or any of your Representatives of a revocable proxy or consent in response to a public proxy or consent solicitation\nmade generally to all holders of the Company’s equity securities pursuant to, and in accordance with, the applicable rules and regulations under the\nExchange Act); (c) make any public announcement with respect to, or publicly support, or solicit or submit a proposal for or offer of (with or without\nconditions) any merger, consolidation, business combination, tender or exchange offer, recapitalization, reorganization, purchase of a material\nportion of the assets or properties of or other similar extraordinary transaction involving the Company or any of its subsidiaries or any of their\nrespective securities; (d) form, join or in any way participate in any “group” (within the meaning of Section 13(d) of the Exchange Act and the rules\nand regulations promulgated thereunder) with respect to any securities of the Company or otherwise in connection with any of the foregoing;\n(e) submit a proposal (including any precatory proposal) to be considered by the stockholders of the Company, or take any action to nominate any\nperson for membership on the board of directors of the Company, or take any action to remove any director from the board of directors of the\nCompany or to change the size or composition of the board of directors of the Company; (f) otherwise act, alone or in concert with others, to seek or\npropose to control or influence the management, board of directors or policies or affairs of the Company or any of its subsidiaries; (g) disclose any\nintention, plan,\n4\nproposal or arrangement inconsistent with any of the foregoing; (h) advise, assist, encourage or direct any other person to do any of the foregoing, or\nact as a financing source for or otherwise invest in any person in connection with such person doing any of the foregoing; (i) take any action that\ncould reasonably be expected to require the Company to make a public announcement regarding the possibility of a Transaction with you or any of\nyour affiliates or any of the other events described in this paragraph; or (j) take any action challenging the validity or enforceability of this paragraph,\nor request the Company amend or waive any provision of this paragraph (including this clause (j)), provided, that (i) you may make confidential\nrequests to the Company to amend or waive any of the limitations set forth in this paragraph, which the Company may accept or reject in its sole\ndiscretion, so long as any such request is made in a manner that does not reasonably require the public disclosure thereof by any person and (ii) your\nchairman or chief executive officer may communicate with the chairman and/or the chief executive officer of Company so long as such\ncommunication is made confidentially and any such request is made in a manner that does not reasonably require the public disclosure thereof by\nany person. Notwithstanding anything in this paragraph to the contrary, if a Fundamental Change Event (as defined below) occurs, you shall have the\nright to make one or more proposals to the Company regarding any of the matters in this paragraph, including, without limitation, to effect a\ntransaction pursuant to which you or your affiliates would acquire a majority of the outstanding voting securities of the Company or all or\nsubstantially all of the assets of the Company and its subsidiaries. A “Fundamental Change Event” means the entry by the Company into a binding\ndefinitive agreement with a third person to effect a purchase, tender or exchange offer, merger or other business combination that, if consummated,\nwould result in such third party owning at least a majority of the outstanding voting securities of the Company or all or substantially all of the assets\nof the Company and its subsidiaries (taken as a whole). You acknowledge that the Evaluation Material is being furnished to you and your\nRepresentatives, in part, in consideration of your agreements in this paragraph.\nThe Company represents to you that prior to the date of this Agreement, it has not entered into a confidentiality or similar agreement (taking into\neffect any waivers thereunder and amendments thereto) relating to a possible transaction with the Company as contemplated hereunder that contains\n(i) standstill provisions the duration of which are shorter than the Restricted Period, or (ii) a provision (such provision, a “Public Notice Release\nProvision”) that would permit the counterparty thereto to be released from its standstill obligations thereunder upon the Company announcing\npublicly (other than in connection with the execution of a definitive merger or similar acquisition agreement) that it is seeking purchasers for a\nmajority of its outstanding voting securities or all or substantially all of its and its subsidiaries’ assets. The Company covenants and agrees that if it\nshall hereafter enter into a confidentiality or similar agreement (taking into effect any waivers thereunder and amendments thereto) relating to a\ntransaction with the Company as contemplated hereunder that contains standstill provisions the duration of which are shorter than the Restricted\nPeriod or which contains a Public Notice Release Provision, the Company shall (A) provide written notice thereof to you, (B) agree to reduce the\nduration of the Restricted Period so that it is no longer than the duration of such shorter standstill period, and (C) agree to amend this Agreement to\ninclude a Public Notice Release Provision on terms substantially similar to those set forth in such other confidentiality or similar agreement.\n12. You recognize and acknowledge the competitive value and confidential nature of the Evaluation Material and that the Company and its\naffiliates and its and their subsidiaries would be irreparably harmed if information contained therein or derived therefrom is disclosed to any person\nor used for any purpose, in each case in material breach by you or your Representatives of the terms of this Agreement, or any other material breach\nby you or your Representatives of this Agreement shall otherwise occur. You further understand and agree that monetary remedies would be\ninadequate to protect the Company and its affiliates and its and their subsidiaries against any actual or threatened material breach of this Agreement\nby you or your Representatives, and that Company shall be entitled to an injunction or injunctions to prevent material breaches or threatened\nmaterial breaches by you or your Representatives of this Agreement and to compel specific performance of this Agreement. Such remedies shall not\nbe the exclusive remedy for actual or threatened breaches of this Agreement but shall be in addition to all other remedies available at law or in equity\nto the Company and its affiliates and their respective subsidiaries. No failure or delay by any party hereto in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or\n5\nfurther exercise thereof or the exercise of any other right, power or privilege hereunder. Notwithstanding anything to the contrary in this paragraph,\nCompany agrees and acknowledges that you and your Representatives do not waive the right to contest, and shall not be prohibited from contesting,\nwhether there has been a material breach by you or your Representatives of this Agreement.\n13. If any provision contained in this Agreement or the application thereof to you, the Company, or any other person or circumstance shall be\ninvalid, illegal or unenforceable in any respect under any applicable law as determined by a court of competent jurisdiction, the validity, legality and\nenforceability of the remaining provisions contained in this Agreement, or the application of such provision to such persons or circumstances other\nthan those as to which it has been held invalid, illegal or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired\nor invalidated thereby. In the case of any such determination of invalidity, illegality or unenforceability, the parties hereto shall negotiate in good\nfaith in an effort to agree upon a suitable and equitable substitute provision to effect the original intent of the parties.\n14. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to the\nprinciples of conflict of laws thereof that would require the application of the laws of any other jurisdiction. Each party irrevocably submits, on\nbehalf of itself and its Representatives, to the exclusive jurisdiction of the Chancery Court of the State of Delaware (the “Chancery Court”), or,\nsolely to the extent the Chancery Court does not have subject matter jurisdiction, the exclusive jurisdiction of the other state or federal court located\nin the State of Delaware (such courts together with the Chancery Court, the “Chosen Courts”), for the purposes of any suit, action or other\nproceeding arising out of this Agreement or a Transaction. Each party irrevocably and unconditionally waives, on behalf of itself and its\nRepresentatives, and agrees not to plead or claim, any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement\nor a Transaction in the Chosen Courts or that any such action, suit or proceeding brought in any such Chosen Court has been brought in an\ninconvenient forum. Each party irrevocably agrees, on behalf of itself and its Representatives, that service of any process, summons, notice or\ndocument by U.S . registered mail to the address set forth in the heading of this Agreement shall be effective service of process for any action, suit or\nproceeding brought against such party or any of its Representatives.\n15. This Agreement contains the entire agreement between the parties concerning the subject matter hereof, and no modification of this\nAgreement or waiver of the terms and conditions hereof shall be binding upon either party, unless approved in writing by each party. This Agreement\nshall inure to the benefit of the parties hereto, and their successors and permitted assigns. Any assignment of this Agreement by either party without\nthe prior written consent of the other shall be void.\n16. The obligations of the parties under this Agreement shall terminate and be of no further force and effect two years from the date hereof,\nprovided that such termination shall not relieve any party from liability for any breach of this Agreement prior to such termination.\n17. This Agreement may be executed in counterparts (including, without limitation, via facsimile or other electronic image scan), each of\nwhich shall be deemed to be an original, but both of which shall constitute one and the same agreement and shall become effective when one or more\ncounterparts have been signed by each of the parties and delivered to the other party.\n[remainder of page intentionally left blank; signature page follows]\n6\nIf the foregoing correctly sets forth the agreement between you and the Company, please sign and return a copy of this signature page,\nwhereupon this Agreement shall become our binding agreement.\nVery truly yours,\nINSPIRE PHARMACEUTICALS, INC.,\nBy /s/ Adrian Adams\nName: Adrian Adams\nTitle: President & CEO\nAGREED AND ACKNOWLEDGED\nas of the date first written above\nMERCK SHARP & DOHME CORP.\nBy /s/ Richard N. Kender\nName: Richard N. Kender\nTitle: Senior Vice President,\nBusiness Development & Corporate\nLicensing\n7
+54c158ec88fee08c279f0ae2d3f704b2.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 10 d527572dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nOctober 9, 2017\nDuravant LLC\n3500 Lacey Rd\nSuite 290\nDowners Grove, IL 60515\nAttention: Carson Brennan\nDirector of Business Development\nDear Carson:\nIn connection with your consideration of a possible transaction (the “Transaction”) involving the Company1 and its Representatives (as defined\nbelow), including Robert W. Baird & Co. Incorporated (“Baird”) acting as the Company’s financial advisor in connection with the proposed\nTransaction, are prepared to make available to you certain information which is non-public, confidential or proprietary in nature. Baird is authorized to\nexecute this letter agreement (the “Agreement”) and provide information to you, on behalf of the Company.\nUpon your execution of this Agreement, Baird will disclose in writing (including via e-mail) the name of the Company. You agree that the term the\n“Company” as used throughout this Agreement shall have the meaning assigned to them by Baird in such disclosure and, accordingly, such meaning\nshall be binding on you.\nBy execution of this Agreement, you agree to treat confidentially any information that you or your Representatives may be provided by or on behalf of\nthe Company (collectively, the “Evaluation Material”). The term “Evaluation Material” shall also include all reports, analyses, notes or other\ninformation that are based on, contain or reflect any Evaluation Material (“Notes”). The term “Evaluation Material” does not include information that\n(i) is now or becomes available to participants in the Company’s industry or the public other than as a result of a disclosure by you or any of your\nRepresentatives, (ii) was available to or in the possession of you or your Representatives on a non-confidential basis prior to the disclosure of such\nEvaluation Material to you pursuant to this Agreement, provided that the source of such information was not known by you or any of your\nRepresentatives, after reasonable inquiry to be bound by a confidentiality obligation, (iii) becomes available to you or your Representatives on a\nnon-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not known by you or any of\nyour Representatives, after reasonable inquiry, to be bound by a confidentiality obligation, (iv) is independently developed by or for you or your\nRepresentatives without use of the Evaluation Material, or (v) is a general concept, idea, or general research applicable to the Company’s industry. For\npurposes of this Agreement the “Representatives” of a person shall include the stockholders, owners, partners, limited partners (who may also serve as\na co-investor source), special limited partners, members, directors, managers, officers, principals, employees, agents, advisors (including, without\nlimitation, attorneys, accountants, consultants, bankers, debt financing sources, and financial advisors) and other professional representatives of such\nperson or such person’s Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended), but shall not include, in\nyour case, any equity financing source and you shall not disclose the Evaluation Material to any such equity financing source without first obtaining\nthe written consent of the Company to do so (at which point such equity financing source will be considered a “Representative” hereunder). For the\navoidance of doubt, your “Representatives” shall only include such parties that actually receive Evaluation Material from you or at your direction.\n1\nIt is understood that you shall have two business days from the date of disclosure of the identity of the Company to inform Robert W. Baird &\nCo. Incorporated, via email, of whether you wish to receive any Evaluation Material about the Company. In the event that you elect not to\nreceive such information, you shall have no further obligation (other than under applicable securities laws) under this Agreement, other than a\nduty which you expressly confirm by signing and returning this Agreement to maintain as confidential for a period of one (1) year the identity of\nthe Company and the fact that we have been retained by the Company in connection with a possible Transaction.\nDuravant LLC\n10/9/17\nPage 2\nYou agree that you will use the Evaluation Material for evaluating a possible Transaction. You agree not to disclose any Evaluation Material to any\nperson, except that you may disclose Evaluation Material to your Representatives (who will be informed by you of the confidential nature of the\nEvaluation Material and will be bound by the confidentiality obligations applicable to the Evaluation Material) who are actively participating in your\nevaluation of a possible Transaction or who otherwise need to review the Evaluation Material for the purpose of evaluating a possible Transaction. You\nshall be responsible for any breach of the expressly applicable terms of this Agreement by you or any of your Representatives.\nYou agree that you and your Representatives will not disclose that discussions or negotiations are taking place concerning a possible Transaction or\nany of the terms, conditions or other facts with respect to any such Transaction, that the Company is considering a possible Transaction, that you have\nreceived Evaluation Material or that you are evaluating a potential Transaction, except to the extent you are advised by your counsel that you are\nrequired to do so under applicable law and then only after you have notified the Company (to the extent legally permissible and reasonably practicable)\nabout the information you propose to disclose. Without your prior written consent, the Company shall not disclose to any person or entity (a) that any\ninvestigations, discussions or negotiations are taking place concerning a Transaction involving the Company and you or (b) that you have requested or\nreceived any Evaluation Material.\nYou understand and agree that neither the Company nor any of its Representatives have made or make any representation or warranty, expressed or\nimplied, as to the accuracy or completeness of the Evaluation Material or shall have any liability whatsoever to you or any of your Representatives\nrelating to or resulting from the use of the Evaluation Material.\nIf you or any of your Representatives are requested or required to disclose any Evaluation Material in a legal proceeding, you will give the Company,\nto the extent legally permissible and reasonably practicable, prompt written notice of such request or requirement and reasonably cooperate with the\nCompany for it to seek, at the Company’s sole cost and expense, a protective order or other appropriate remedy. In the event that such protective order\nor other remedy is not obtained, you or your Representatives will disclose only that portion of the Evaluation Material which, upon the advice of your\ncounsel and after notifying the Company, is legally required to be disclosed. The Company acknowledges that one or more of your affiliates is a\nregistered investment adviser and that you may be subject to routine examinations, investigations, regulatory sweeps or other regulatory inquiries by\napplicable regulatory and self-regulatory authorities. The Company agrees that you may make such disclosures as may be requested by any such\nauthority (or examiner thereof) and will not be required to comply with the process described in this paragraph; provided that if the request by such\nauthority (or examiner thereof) is specifically targeted at the Company, you will notify the Company (to the extent not prohibited by such authority or\nexaminer or by applicable rule, regulation or law) as promptly as practicable following such request.\nIf the Company or Baird requests in writing at any time for any reason, you and your Representatives will promptly return to the Company or at your\noption, destroy, all copies of the Evaluation Material and destroy all Notes, in each case without retaining a copy thereof; provided, however, that one\ncopy of Evaluation Material and documentation prepared solely by you or on your behalf in connection with your evaluation of the Transaction\nhereunder shall be retained by you and your Representatives, subject to the confidentiality provisions herein, for regulatory purposes, to satisfy\nprofessional requirements or to comply with internal policies or guidelines.\nYou hereby acknowledge that you are aware, and that you will advise your Representatives, that the securities laws of the United States prohibit any\nperson who is aware of material non-public information concerning the Company or a possible Transaction involving the Company from purchasing or\nselling the Company’s securities or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities.\nDuravant LLC\n10/9/17\nPage 3\nYou agree that, for a period of twelve (12) months from the date of this Agreement you will not in any manner, directly or indirectly, without the prior\nwritten consent of the Company’s Board of Directors: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise,\nany voting securities or direct or indirect rights to acquire any voting securities of the Company, or of any successor to or person in control of the\nCompany, or any assets of the Company or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly,\nany “solicitation” of “proxies” to vote (as such terms are used in the rules of the Securities and Exchange Commission), or seek to advise or influence\nany person with respect to the voting of any voting securities of the Company; (iii) make any public announcement with respect to, or submit a\nproposal for, or offer of (with or without conditions) any extraordinary transaction involving the Company or any of its securities or assets; (iv) form,\njoin or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any\nsecurities of the Company; (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or\npolicies of the Company; (vi) disclose any intention, plan or arrangement inconsistent with the foregoing; (vii) advise, assist or encourage any other\npersons in connection with any of the foregoing; (viii) take any action that might require the Company to make a public announcement regarding an\nextraordinary transaction involving the Company or any of its securities or assets; (ix) file any application with any regulatory authority seeking\napproval or authority in connection with any action described above; or (x) request the Company, its Board of Directors or any of its Representatives,\ndirectly or indirectly, to amend or waive any provision of this paragraph (including this sentence).\nYou agree that (i) the Company and Baird shall be free to conduct the process for a possible Transaction as they in their sole discretion shall determine\n(including, without limitation, negotiating with any prospective buyer and entering into definitive agreements without prior notice to you or any other\nperson), (ii) any procedures relating to such a Transaction may be changed at any time without notice to you or any other person, and (iii) the Company\nshall have the right to reject or accept any potential buyer, proposal or offer, or to terminate discussions and negotiations with you, at any time for any\nreason whatsoever, in its sole discretion.\nYou further agree that unless and until a definitive agreement between the Company and you with respect to any Transaction has been executed and\ndelivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to such Transaction by virtue of this\nAgreement except for the matters specifically agreed to herein.\nYou understand that Baird will arrange for appropriate contacts for due diligence purposes. You also agree that all (i) communications regarding a\npossible Transaction, (ii) requests for additional information, (iii) requests for facility tours or management meetings, and (iv) discussions or questions\nregarding procedures will be submitted or directed exclusively to Baird, unless otherwise agreed by the Company.\nYou agree, for a period of one year from the date of this Agreement, not to directly or indirectly solicit for employment any management employees of\nthe Company with whom you have come into significant contact during your review of the Transaction without the Company’s prior written consent.\nThe preceding sentence does not, however, prohibit you from making general solicitations for employment by means of advertisements, public notices,\nor internal or external websites or job search engines or professional placement agencies, and nothing herein shall prevent you from hiring any person\nwho contacts you on his or her own initiative with the purpose of seeking employment with you.\nThe parties agree that money damages may not be a sufficient remedy for any breach of this Agreement and that in addition to all other remedies the\nnon-breaching party may be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach. If any\nprovision or portion of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, in whole or in\npart, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by\napplicable law.\nDuravant LLC\n10/9/17\nPage 4\nThis Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware.\nYour non-disclosure obligations under this Agreement shall terminate on the first anniversary of the date of this Agreement.\nIf you are in agreement with the foregoing, please so indicate by signing, dating and returning one copy of this Agreement, which will constitute our\nagreement with respect to the matters set forth herein.\nDuravant LLC\n10/9/17\nPage 5\nVery truly yours,\nROBERT W. BAIRD & CO. INCORPORATED\nAs Agent for the Company\nBy: /s/ Michael Barina\nIts:\nDirector\nConfirmed and Agreed to:\nDURAVANT LLC\nBy: /s/ Carson Brennan\nIts:\nDirector of Business Development\nDate: 10/9/17	EX-99.(D)(2) 10 d527572dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nOctober 9, 2017\nDuravant LL.C\n3500 Lacey Rd\nSuite 290\nDowners Grove, IL 60515\nAttention: Carson Brennan\nDirector of Business Development\nDear Carson:\nIn connection with your consideration of a possible transaction (the “Transaction”) involving the Company! and its Representatives (as defined\nbelow), including Robert W. Baird & Co. Incorporated (“Baird”) acting as the Company’s financial advisor in connection with the proposed\nTransaction, are prepared to make available to you certain information which is non-public, confidential or proprietary in nature. Baird is authorized to\nexecute this letter agreement (the “Agreement™) and provide information to you, on behalf of the Company.\nUpon your execution of this Agreement, Baird will disclose in writing (including via e-mail) the name of the Company. You agree that the term the\n“Company” as used throughout this Agreement shall have the meaning assigned to them by Baird in such disclosure and, accordingly, such meaning\nshall be binding on you.\nBy execution of this Agreement, you agree to treat confidentially any information that you or your Representatives may be provided by or on behalf of\nthe Company (collectively, the “Evaluation Material”). The term “Evaluation Material” shall also include all reports, analyses, notes or other\ninformation that are based on, contain or reflect any Evaluation Material (“Notes”). The term “Evaluation Material” does not include information that\n(i) is now or becomes available to participants in the Company’s industry or the public other than as a result of a disclosure by you or any of your\nRepresentatives, (ii) was available to or in the possession of you or your Representatives on a non-confidential basis prior to the disclosure of such\nEvaluation Material to you pursuant to this Agreement, provided that the source of such information was not known by you or any of your\nRepresentatives, after reasonable inquiry to be bound by a confidentiality obligation, (iii) becomes available to you or your Representatives on a\nnon-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not known by you or any of\nyour Representatives, after reasonable inquiry, to be bound by a confidentiality obligation, (iv) is independently developed by or for you or your\nRepresentatives without use of the Evaluation Material, or (v) is a general concept, idea, or general research applicable to the Company’s industry. For\npurposes of this Agreement the “Representatives” of a person shall include the stockholders, owners, partners, limited partners (who may also serve as\na co-investor source), special limited partners, members, directors, managers, officers, principals, employees, agents, advisors (including, without\nlimitation, attorneys, accountants, consultants, bankers, debt financing sources, and financial advisors) and other professional representatives of such\nperson or such person’s Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended), but shall not include, in\nyour case, any equity financing source and you shall not disclose the Evaluation Material to any such equity financing source without first obtaining\nthe written consent of the Company to do so (at which point such equity financing source will be considered a “Representative” hereunder). For the\navoidance of doubt, your “Representatives” shall only include such parties that actually receive Evaluation Material from you or at your direction.\n1 It is understood that you shall have two business days from the date of disclosure of the identity of the Company to inform Robert W. Baird &\nCo. Incorporated, via email, of whether you wish to receive any Evaluation Material about the Company. In the event that you elect not to\nreceive such information, you shall have no further obligation (other than under applicable securities laws) under this Agreement, other than a\nduty which you expressly confirm by signing and returning this Agreement to maintain as confidential for a period of one (1) year the identity of\nthe Company and the fact that we have been retained by the Company in connection with a possible Transaction.\nDuravant LLC\n10/9/17\nPage 2\nYou agree that you will use the Evaluation Material for evaluating a possible Transaction. You agree not to disclose any Evaluation Material to any\nperson, except that you may disclose Evaluation Material to your Representatives (who will be informed by you of the confidential nature of the\nEvaluation Material and will be bound by the confidentiality obligations applicable to the Evaluation Material) who are actively participating in your\nevaluation of a possible Transaction or who otherwise need to review the Evaluation Material for the purpose of evaluating a possible Transaction. You\nshall be responsible for any breach of the expressly applicable terms of this Agreement by you or any of your Representatives.\nYou agree that you and your Representatives will not disclose that discussions or negotiations are taking place concerning a possible Transaction or\nany of the terms, conditions or other facts with respect to any such Transaction, that the Company is considering a possible Transaction, that you have\nreceived Evaluation Material or that you are evaluating a potential Transaction, except to the extent you are advised by your counsel that you are\nrequired to do so under applicable law and then only after you have notified the Company (to the extent legally permissible and reasonably practicable)\nabout the information you propose to disclose. Without your prior written consent, the Company shall not disclose to any person or entity (a) that any\ninvestigations, discussions or negotiations are taking place concerning a Transaction involving the Company and you or (b) that you have requested or\nreceived any Evaluation Material.\nYou understand and agree that neither the Company nor any of its Representatives have made or make any representation or warranty, expressed or\nimplied, as to the accuracy or completeness of the Evaluation Material or shall have any liability whatsoever to you or any of your Representatives\nrelating to or resulting from the use of the Evaluation Material.\nIf you or any of your Representatives are requested or required to disclose any Evaluation Material in a legal proceeding, you will give the Company,\nto the extent legally permissible and reasonably practicable, prompt written notice of such request or requirement and reasonably cooperate with the\nCompany for it to seek, at the Company’s sole cost and expense, a protective order or other appropriate remedy. In the event that such protective order\nor other remedy is not obtained, you or your Representatives will disclose only that portion of the Evaluation Material which, upon the advice of your\ncounsel and after notifying the Company, is legally required to be disclosed. The Company acknowledges that one or more of your affiliates is a\nregistered investment adviser and that you may be subject to routine examinations, investigations, regulatory sweeps or other regulatory inquiries by\napplicable regulatory and self-regulatory authorities. The Company agrees that you may make such disclosures as may be requested by any such\nauthority (or examiner thereof) and will not be required to comply with the process described in this paragraph; provided that if the request by such\nauthority (or examiner thereof) is specifically targeted at the Company, you will notify the Company (to the extent not prohibited by such authority or\nexaminer or by applicable rule, regulation or law) as promptly as practicable following such request.\nIf the Company or Baird requests in writing at any time for any reason, you and your Representatives will promptly return to the Company or at your\noption, destroy, all copies of the Evaluation Material and destroy all Notes, in each case without retaining a copy thereof; provided, however, that one\ncopy of Evaluation Material and documentation prepared solely by you or on your behalf in connection with your evaluation of the Transaction\nhereunder shall be retained by you and your Representatives, subject to the confidentiality provisions herein, for regulatory purposes, to satisfy\nprofessional requirements or to comply with internal policies or guidelines.\nYou hereby acknowledge that you are aware, and that you will advise your Representatives, that the securities laws of the United States prohibit any\nperson who is aware of material non-public information concerning the Company or a possible Transaction involving the Company from purchasing or\nselling the Company’s securities or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities.\nDuravant LLC\n10/9/17\nPage 3\nYou agree that, for a period of twelve (12) months from the date of this Agreement you will not in any manner, directly or indirectly, without the prior\nwritten consent of the Company’s Board of Directors: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise,\nany voting securities or direct or indirect rights to acquire any voting securities of the Company, or of any successor to or person in control of the\nCompany, or any assets of the Company or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly,\nany “solicitation” of “proxies” to vote (as such terms are used in the rules of the Securities and Exchange Commission), or seek to advise or influence\nany person with respect to the voting of any voting securities of the Company; (iii) make any public announcement with respect to, or submit a\nproposal for, or offer of (with or without conditions) any extraordinary transaction involving the Company or any of its securities or assets; (iv) form,\njoin or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any\nsecurities of the Company; (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or\npolicies of the Company; (vi) disclose any intention, plan or arrangement inconsistent with the foregoing; (vii) advise, assist or encourage any other\npersons in connection with any of the foregoing; (viii) take any action that might require the Company to make a public announcement regarding an\nextraordinary transaction involving the Company or any of its securities or assets; (ix) file any application with any regulatory authority seeking\napproval or authority in connection with any action described above; or (x) request the Company, its Board of Directors or any of its Representatives,\ndirectly or indirectly, to amend or waive any provision of this paragraph (including this sentence).\nYou agree that (i) the Company and Baird shall be free to conduct the process for a possible Transaction as they in their sole discretion shall determine\n(including, without limitation, negotiating with any prospective buyer and entering into definitive agreements without prior notice to you or any other\nperson), (ii) any procedures relating to such a Transaction may be changed at any time without notice to you or any other person, and (iii) the Company\nshall have the right to reject or accept any potential buyer, proposal or offer, or to terminate discussions and negotiations with you, at any time for any\nreason whatsoever, in its sole discretion.\nYou further agree that unless and until a definitive agreement between the Company and you with respect to any Transaction has been executed and\ndelivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to such Transaction by virtue of this\nAgreement except for the matters specifically agreed to herein.\nYou understand that Baird will arrange for appropriate contacts for due diligence purposes. You also agree that all (i) communications regarding a\npossible Transaction, (ii) requests for additional information, (iii) requests for facility tours or management meetings, and (iv) discussions or questions\nregarding procedures will be submitted or directed exclusively to Baird, unless otherwise agreed by the Company.\nYou agree, for a period of one year from the date of this Agreement, not to directly or indirectly solicit for employment any management employees of\nthe Company with whom you have come into significant contact during your review of the Transaction without the Company’s prior written consent.\nThe preceding sentence does not, however, prohibit you from making general solicitations for employment by means of advertisements, public notices,\nor internal or external websites or job search engines or professional placement agencies, and nothing herein shall prevent you from hiring any person\nwho contacts you on his or her own initiative with the purpose of seeking employment with you.\nThe parties agree that money damages may not be a sufficient remedy for any breach of this Agreement and that in addition to all other remedies the\nnon-breaching party may be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach. If any\nprovision or portion of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, in whole or in\npart, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by\napplicable law.\nDuravant LLC\n10/9/17\nPage 4\nThis Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware.\nYour non-disclosure obligations under this Agreement shall terminate on the first anniversary of the date of this Agreement.\nIf you are in agreement with the foregoing, please so indicate by signing, dating and returning one copy of this Agreement, which will constitute our\nagreement with respect to the matters set forth herein.\nDuravant LLC\n10/9/17\nPage 5\nVery truly yours,\nROBERT W. BAIRD & CO. INCORPORATED\nAs Agent for the Company\nBy: /s/ Michael Barina\nIts: Director\nConfirmed and Agreed to:\nDURAVANT LLC\nBy: /s/ Carson Brennan\nIts: Director of Business Development\nDate: 10/9/17	EX-99.(D)(2) 10 1527572dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nOctober 9, 2017\nDuravant LLC\n3500 Lacey Rd\nSuite 290\nDowners Grove, IL 60515\nAttention: Carson Brennan\nDirector of Business Development\nDear Carson:\nIn connection with your consideration of a possible transaction (the "Transaction") involving the Company and its Representatives (as defined\nbelow), including Robert W. Baird & Co. Incorporated ("Baird") acting as the Company's financial advisor in connection with the proposed\nTransaction, are prepared to make available to you certain information which is non-public, confidential or proprietary in nature. Baird is authorized to\nexecute this letter agreement (the "Agreement") and provide information to you, on behalf of the Company.\nUpon your execution of this Agreement, Baird will disclose in writing (including via e-mail) the name of the Company. You agree that the term the\n"Company" as used throughout this Agreement shall have the meaning assigned to them by Baird in such disclosure and, accordingly, such meaning\nshall be binding on you.\nBy execution of this Agreement, you agree to treat confidentially any information that you or your Representatives may be provided by or on behalf of\nthe Company (collectively, the "Evaluation Material"). The term "Evaluation Material" shall also include all reports, analyses, notes or other\ninformation that are based on, contain or reflect any Evaluation Material ("Notes"). The term "Evaluation Material" does not include information\nthat\n(i) is now or becomes available to participants in the Company's industry or the public other than as a result of a disclosure by you or any of your\nRepresentatives, (ii) was available to or in the possession of you or your Representatives on a non-confidential basis prior to the disclosure of such\nEvaluation Material to you pursuant to this Agreement, provided that the source of such information was not known by you or any of your\nRepresentatives, after reasonable inquiry to be bound by a confidentiality obligation, (iii) becomes available to you or your Representatives on\na\nnon-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not known by you or any of\nyour Representatives, after reasonable inquiry, to be bound by a confidentiality obligation, (iv) is independently developed by or for you or your\nRepresentatives without use of the Evaluation Material, or (v) is a general concept, idea, or general research applicable to the Company's industry. For\npurposes of this Agreement the "Representatives" of a person shall include the stockholders, owners, partners, limited partners (who may also serve as\na co-investor source), special limited partners, members, directors, managers, officers, principals, employees, agents, advisors (including, without\nlimitation, attorneys, accountants, consultants, bankers, debt financing sources, and financial advisors) and other professional representatives of such\nperson or such person's Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended), but shall not include, in\nyour case, any equity financing source and you shall not disclose the Evaluation Material to any such equity financing source without first obtaining\nthe written consent of the Company to do so (at which point such equity financing source will be considered a "Representative" hereunder). For\nthe\navoidance of doubt, your "Representatives" shall only include such parties that actually receive Evaluation Material from you or at your direction.\n1\nIt is understood that you shall have two business days from the date of disclosure of the identity of the Company to inform Robert W. Baird\n&\nCo. Incorporated, via email, of whether you wish to receive any Evaluation Material about the Company. In the event that you elect not to\nreceive such information, you shall have no further obligation (other than under applicable securities laws) under this Agreement, other than a\nduty which you expressly confirm by signing and returning this Agreement to maintain as confidential for a period of one (1) year the identity of\nthe\nCompany and the fact that we have been retained by the Company in connection with a possible Transaction.\nDuravant LLC\n10/9/17\nPage 2\nYou agree that you will use the Evaluation Material for evaluating a possible Transaction. You agree not to disclose any Evaluation Material to any\nperson,\nexcept\nthat you may disclose Evaluation Material to your Representatives (who will be informed by you of the confidential nature of the\nevaluation of a possible Transaction or who otherwise need to review the Evaluation Material for the purpose of evaluating a possible Transaction. your You\nEvaluation Material and will be bound by the confidentiality obligations applicable to the Evaluation Material) who are actively participating in\nshall be responsible for any breach of the expressly applicable terms of this Agreement by you or any of your Representatives.\nYou agree that you and your Representatives will not disclose that discussions or negotiations are taking place concerning a possible Transaction or\nany\nof\nthe\nterms,\nconditions or other facts with respect to any such Transaction, that the Company is considering a possible Transaction, that you\nhave\nreceived Evaluation Material or that you are evaluating a potential Transaction, except to the extent you are advised by your counsel that you are\nrequired to do so under applicable law and then only after you have notified the Company (to the extent legally permissible and reasonably practicable)\nabout\nthe\ninformation\nyou\npropose\nto\ndisclose.\nWithout\nyour\nprior\nwritten\nconsent,\nthe\nCompany\nshall\nnot\ndisclose\nto\nany\nperson\nor\nentity\n(a)\nthat\nany\ninvestigations, discussions or negotiations are taking place concerning a Transaction involving the Company and you or (b) that you have requested\nor\nreceived any Evaluation Material.\nYou understand and agree that neither the Company nor any of its Representatives have made or make any representation or warranty, expressed or\nimplied, as to the accuracy or completeness of the Evaluation Material or shall have any liability whatsoever to you or any of your Representatives\nrelating to or resulting from the use of the Evaluation Material.\nIf you or any of your Representatives are requested or required to disclose any Evaluation Material in a legal proceeding, you will give the Company,\nto the extent legally permissible and reasonably practicable, prompt written notice of such request or requirement and reasonably cooperate with the\nCompany for it to seek, at the Company's sole cost and expense, a protective order or other appropriate remedy. In the event that such protective order\nor other remedy is not obtained, you or your Representatives will disclose only that portion of the Evaluation Material which, upon the advice of your\ncounsel and after notifying the Company, is legally required to be disclosed. The Company acknowledges that one or more of your affiliates is a\nregistered investment adviser and that you may be subject to routine examinations, investigations, regulatory sweeps or other regulatory inquiries\nby\napplicable regulatory and self-regulatory authorities. The Company agrees that you may make such disclosures as may be requested by any such\nauthority (or examiner thereof) and will not be required to comply with the process described in this paragraph; provided that if the request\nby\nsuch\nauthority (or examiner thereof) is specifically targeted at the Company, you will notify the Company (to the extent not prohibited by such authority\nor\nexaminer or by applicable rule, regulation or law) as promptly as practicable following such request.\nIf the Company or Baird requests in writing at any time for any reason, you and your Representatives will promptly return to the Company or at your\noption, destroy, all copies of the Evaluation Material and destroy all Notes, in each case without retaining a copy thereof; provided, however, that one\ncopy of Evaluation Material and documentation prepared solely by you or on your behalf in connection with your evaluation of the Transaction\nhereunder shall be retained by you and your Representatives, subject to the confidentiality provisions herein, for regulatory purposes, to satisfy\nprofessiona requirements or to comply with internal policies or guidelines.\nYou hereby acknowledge that you are aware, and that you will advise your Representatives, that the securities laws of the United States prohibit\nany\nperson who is aware of material non-public information concerning the Company or a possible Transaction involving the Company from purchasing\nor\nselling the Company's securities or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities.\nDuravant LLC\n10/9/17\nPage 3\nYou agree that, for a period of twelve (12) months from the date of this Agreement you will not in any manner, directly or indirectly, without the prior\nwritten consent of the Company's Board of Directors: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise,\nany voting securities or direct or indirect rights to acquire any voting securities of the Company, or of any successor to or person in control of the\nCompany, or any assets of the Company or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly,\nany "'solicitation" of "proxies" to vote (as such terms are used in the rules of the Securities and Exchange Commission), or seek to advise or influence\nany person with respect to the voting of any voting securities of the Company; (iii) make any public announcement with respect to, or submit a\nproposal for, or offer of (with or without conditions) any extraordinary transaction involving the Company or any of its securities or assets; (iv) form,\njoin or in any way participate in a "group" (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any\nsecurities of the Company; (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or\npolicies of the Company; (vi) disclose any intention, plan or arrangement inconsistent with the foregoing; (vii) advise, assist or encourage any other\npersons in connection with any of the foregoing; (viii) take any action that might require the Company to make a public announcement regarding\nan\nextraordinary transaction involving the Company or any of its securities or assets; (ix) file any application with any regulatory authority seeking\napproval or authority in connection with any action described above; or (x) request the Company, its Board of Directors or any of its Representatives,\ndirectly or indirectly, to amend or waive any provision of this paragraph (including this sentence).\nYou agree that (i) the Company and Baird shall be free to conduct the process for a possible Transaction as they in their sole discretion shall determine\n(including, without limitation, negotiating with any prospective buyer and entering into definitive agreements without prior notice to you or any other\nperson), (ii) any procedures relating to such a Transaction may be changed at any time without notice to you or any other person, and (iii) the Company\nshall have the right to reject or accept any potential buyer, proposal or offer, or to terminate discussions and negotiations with you, at any time for any\nreason whatsoever, in its sole discretion.\nYou further agree that unless and until a definitive agreement between the Company and you with respect to any Transaction has been executed and\ndelivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to such Transaction by virtue of\nthis\nAgreement except for the matters specifically agreed to herein.\nYou understand that Baird will arrange for appropriate contacts for due diligence purposes. You also agree that all (i) communications regarding\na\npossible Transaction, (ii) requests for additional information, (iii) requests for facility tours or management meetings, and (iv) discussions or questions\nregarding procedures will be submitted or directed exclusively to Baird, unless otherwise agreed by the Company.\nYou agree, for a period of one year from the date of this Agreement, not to directly or indirectly solicit for employment any management employees of\nthe Company with whom you have come into significant contact during your review of the Transaction without the Company's prior written consent.\nThe preceding sentence does not, however, prohibit you from making general solicitations for employment by means of advertisements, public notices,\nor internal or external websites or job search engines or professional placement agencies, and nothing herein shall prevent you from hiring any person\nwho contacts you on his or her own initiative with the purpose of seeking employment with you.\nThe parties agree that money damages may not be a sufficient remedy for any breach of this Agreement and that in addition to all other remedies\nthe\nnon-breaching party may be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach. If any\nprovision or portion of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, in whole or in\npart, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted\nby\napplicable law.\nDuravant LLC\n10/9/17\nPage 4\nThis Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware.\nYour non-disclosure obligations under this Agreement shall terminate on the first anniversary of the date of this Agreement.\nIf you are in agreement with the foregoing, please SO indicate by signing, dating and returning one copy of this Agreement, which will constitute our\nagreement with respect to the matters set forth herein.\nDuravant LLC\n10/9/17\nPage 5\nVery truly yours,\nROBERT W. BAIRD & CO. INCORPORATED\nAs Agent for the Company\nBy:\n/s/ Michael Barina\nIts:\nDirector\nConfirmed and Agreed to:\nDURAVANT LLC\nBy:\n/s/ Carson Brennan\nIts:\nDirector of Business Development\nDate: 10/9/17	EX-99.(D)(2) 10 d527572dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nOctober 9, 2017\nDuravant LLC\n3500 Lacey Rd\nSuite 290\nDowners Grove, IL 60515\nAttention: Carson Brennan\nDirector of Business Development\nDear Carson:\nIn connection with your consideration of a possible transaction (the “Transaction”) involving the Company1 and its Representatives (as defined\nbelow), including Robert W. Baird & Co. Incorporated (“Baird”) acting as the Company’s financial advisor in connection with the proposed\nTransaction, are prepared to make available to you certain information which is non-public, confidential or proprietary in nature. Baird is authorized to\nexecute this letter agreement (the “Agreement”) and provide information to you, on behalf of the Company.\nUpon your execution of this Agreement, Baird will disclose in writing (including via e-mail) the name of the Company. You agree that the term the\n“Company” as used throughout this Agreement shall have the meaning assigned to them by Baird in such disclosure and, accordingly, such meaning\nshall be binding on you.\nBy execution of this Agreement, you agree to treat confidentially any information that you or your Representatives may be provided by or on behalf of\nthe Company (collectively, the “Evaluation Material”). The term “Evaluation Material” shall also include all reports, analyses, notes or other\ninformation that are based on, contain or reflect any Evaluation Material (“Notes”). The term “Evaluation Material” does not include information that\n(i) is now or becomes available to participants in the Company’s industry or the public other than as a result of a disclosure by you or any of your\nRepresentatives, (ii) was available to or in the possession of you or your Representatives on a non-confidential basis prior to the disclosure of such\nEvaluation Material to you pursuant to this Agreement, provided that the source of such information was not known by you or any of your\nRepresentatives, after reasonable inquiry to be bound by a confidentiality obligation, (iii) becomes available to you or your Representatives on a\nnon-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not known by you or any of\nyour Representatives, after reasonable inquiry, to be bound by a confidentiality obligation, (iv) is independently developed by or for you or your\nRepresentatives without use of the Evaluation Material, or (v) is a general concept, idea, or general research applicable to the Company’s industry. For\npurposes of this Agreement the “Representatives” of a person shall include the stockholders, owners, partners, limited partners (who may also serve as\na co-investor source), special limited partners, members, directors, managers, officers, principals, employees, agents, advisors (including, without\nlimitation, attorneys, accountants, consultants, bankers, debt financing sources, and financial advisors) and other professional representatives of such\nperson or such person’s Affiliates (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended), but shall not include, in\nyour case, any equity financing source and you shall not disclose the Evaluation Material to any such equity financing source without first obtaining\nthe written consent of the Company to do so (at which point such equity financing source will be considered a “Representative” hereunder). For the\navoidance of doubt, your “Representatives” shall only include such parties that actually receive Evaluation Material from you or at your direction.\n1\nIt is understood that you shall have two business days from the date of disclosure of the identity of the Company to inform Robert W. Baird &\nCo. Incorporated, via email, of whether you wish to receive any Evaluation Material about the Company. In the event that you elect not to\nreceive such information, you shall have no further obligation (other than under applicable securities laws) under this Agreement, other than a\nduty which you expressly confirm by signing and returning this Agreement to maintain as confidential for a period of one (1) year the identity of\nthe Company and the fact that we have been retained by the Company in connection with a possible Transaction.\nDuravant LLC\n10/9/17\nPage 2\nYou agree that you will use the Evaluation Material for evaluating a possible Transaction. You agree not to disclose any Evaluation Material to any\nperson, except that you may disclose Evaluation Material to your Representatives (who will be informed by you of the confidential nature of the\nEvaluation Material and will be bound by the confidentiality obligations applicable to the Evaluation Material) who are actively participating in your\nevaluation of a possible Transaction or who otherwise need to review the Evaluation Material for the purpose of evaluating a possible Transaction. You\nshall be responsible for any breach of the expressly applicable terms of this Agreement by you or any of your Representatives.\nYou agree that you and your Representatives will not disclose that discussions or negotiations are taking place concerning a possible Transaction or\nany of the terms, conditions or other facts with respect to any such Transaction, that the Company is considering a possible Transaction, that you have\nreceived Evaluation Material or that you are evaluating a potential Transaction, except to the extent you are advised by your counsel that you are\nrequired to do so under applicable law and then only after you have notified the Company (to the extent legally permissible and reasonably practicable)\nabout the information you propose to disclose. Without your prior written consent, the Company shall not disclose to any person or entity (a) that any\ninvestigations, discussions or negotiations are taking place concerning a Transaction involving the Company and you or (b) that you have requested or\nreceived any Evaluation Material.\nYou understand and agree that neither the Company nor any of its Representatives have made or make any representation or warranty, expressed or\nimplied, as to the accuracy or completeness of the Evaluation Material or shall have any liability whatsoever to you or any of your Representatives\nrelating to or resulting from the use of the Evaluation Material.\nIf you or any of your Representatives are requested or required to disclose any Evaluation Material in a legal proceeding, you will give the Company,\nto the extent legally permissible and reasonably practicable, prompt written notice of such request or requirement and reasonably cooperate with the\nCompany for it to seek, at the Company’s sole cost and expense, a protective order or other appropriate remedy. In the event that such protective order\nor other remedy is not obtained, you or your Representatives will disclose only that portion of the Evaluation Material which, upon the advice of your\ncounsel and after notifying the Company, is legally required to be disclosed. The Company acknowledges that one or more of your affiliates is a\nregistered investment adviser and that you may be subject to routine examinations, investigations, regulatory sweeps or other regulatory inquiries by\napplicable regulatory and self-regulatory authorities. The Company agrees that you may make such disclosures as may be requested by any such\nauthority (or examiner thereof) and will not be required to comply with the process described in this paragraph; provided that if the request by such\nauthority (or examiner thereof) is specifically targeted at the Company, you will notify the Company (to the extent not prohibited by such authority or\nexaminer or by applicable rule, regulation or law) as promptly as practicable following such request.\nIf the Company or Baird requests in writing at any time for any reason, you and your Representatives will promptly return to the Company or at your\noption, destroy, all copies of the Evaluation Material and destroy all Notes, in each case without retaining a copy thereof; provided, however, that one\ncopy of Evaluation Material and documentation prepared solely by you or on your behalf in connection with your evaluation of the Transaction\nhereunder shall be retained by you and your Representatives, subject to the confidentiality provisions herein, for regulatory purposes, to satisfy\nprofessional requirements or to comply with internal policies or guidelines.\nYou hereby acknowledge that you are aware, and that you will advise your Representatives, that the securities laws of the United States prohibit any\nperson who is aware of material non-public information concerning the Company or a possible Transaction involving the Company from purchasing or\nselling the Company’s securities or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities.\nDuravant LLC\n10/9/17\nPage 3\nYou agree that, for a period of twelve (12) months from the date of this Agreement you will not in any manner, directly or indirectly, without the prior\nwritten consent of the Company’s Board of Directors: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise,\nany voting securities or direct or indirect rights to acquire any voting securities of the Company, or of any successor to or person in control of the\nCompany, or any assets of the Company or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly,\nany “solicitation” of “proxies” to vote (as such terms are used in the rules of the Securities and Exchange Commission), or seek to advise or influence\nany person with respect to the voting of any voting securities of the Company; (iii) make any public announcement with respect to, or submit a\nproposal for, or offer of (with or without conditions) any extraordinary transaction involving the Company or any of its securities or assets; (iv) form,\njoin or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to any\nsecurities of the Company; (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or\npolicies of the Company; (vi) disclose any intention, plan or arrangement inconsistent with the foregoing; (vii) advise, assist or encourage any other\npersons in connection with any of the foregoing; (viii) take any action that might require the Company to make a public announcement regarding an\nextraordinary transaction involving the Company or any of its securities or assets; (ix) file any application with any regulatory authority seeking\napproval or authority in connection with any action described above; or (x) request the Company, its Board of Directors or any of its Representatives,\ndirectly or indirectly, to amend or waive any provision of this paragraph (including this sentence).\nYou agree that (i) the Company and Baird shall be free to conduct the process for a possible Transaction as they in their sole discretion shall determine\n(including, without limitation, negotiating with any prospective buyer and entering into definitive agreements without prior notice to you or any other\nperson), (ii) any procedures relating to such a Transaction may be changed at any time without notice to you or any other person, and (iii) the Company\nshall have the right to reject or accept any potential buyer, proposal or offer, or to terminate discussions and negotiations with you, at any time for any\nreason whatsoever, in its sole discretion.\nYou further agree that unless and until a definitive agreement between the Company and you with respect to any Transaction has been executed and\ndelivered, neither the Company nor you will be under any legal obligation of any kind whatsoever with respect to such Transaction by virtue of this\nAgreement except for the matters specifically agreed to herein.\nYou understand that Baird will arrange for appropriate contacts for due diligence purposes. You also agree that all (i) communications regarding a\npossible Transaction, (ii) requests for additional information, (iii) requests for facility tours or management meetings, and (iv) discussions or questions\nregarding procedures will be submitted or directed exclusively to Baird, unless otherwise agreed by the Company.\nYou agree, for a period of one year from the date of this Agreement, not to directly or indirectly solicit for employment any management employees of\nthe Company with whom you have come into significant contact during your review of the Transaction without the Company’s prior written consent.\nThe preceding sentence does not, however, prohibit you from making general solicitations for employment by means of advertisements, public notices,\nor internal or external websites or job search engines or professional placement agencies, and nothing herein shall prevent you from hiring any person\nwho contacts you on his or her own initiative with the purpose of seeking employment with you.\nThe parties agree that money damages may not be a sufficient remedy for any breach of this Agreement and that in addition to all other remedies the\nnon-breaching party may be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach. If any\nprovision or portion of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, in whole or in\npart, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by\napplicable law.\nDuravant LLC\n10/9/17\nPage 4\nThis Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware.\nYour non-disclosure obligations under this Agreement shall terminate on the first anniversary of the date of this Agreement.\nIf you are in agreement with the foregoing, please so indicate by signing, dating and returning one copy of this Agreement, which will constitute our\nagreement with respect to the matters set forth herein.\nDuravant LLC\n10/9/17\nPage 5\nVery truly yours,\nROBERT W. BAIRD & CO. INCORPORATED\nAs Agent for the Company\nBy: /s/ Michael Barina\nIts:\nDirector\nConfirmed and Agreed to:\nDURAVANT LLC\nBy: /s/ Carson Brennan\nIts:\nDirector of Business Development\nDate: 10/9/17
+54f78c61bee16515a7acf82a5ba2ce1e.pdf	effective_date jurisdiction party term	EX-99.(E)(8) 2 dex99e8.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(8)\nMAXWELL SHOE COMPANY INC.\n101 SPRAGUE STREET, P.O. BOX 37\nREADVILLE (BOSTON), MA 02137-0037\nJune 8, 2004\nJones Apparel Group, Inc.\n250 Rittenhouse Circle\nBristol, Pennsylvania 19007\nAttention: Peter Boneparth\nMUTUAL CONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nThis confidentiality agreement (this “Agreement”) is entered into as of the date set forth above between Maxwell Shoe Company Inc., a Delaware\ncorporation (the “Maxwell”), and Jones Apparel Group, Inc. (“Jones”), a Pennsylvania corporation.\nIn connection with the consideration by each party hereto of a possible negotiated transaction, including, without limitation, a possible business\ncombination or other business transaction (a “Transaction”), with the other party hereto and/or its subsidiaries, affiliates or divisions (references\nherein to each “party” shall include subsidiaries, affiliates and divisions of such party), each party is prepared to make available to the other party\ncertain information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished\nto the other party and the other party’s directors, officers, employees, agents, representatives or advisors (including, without limitation, attorneys,\naccountants, consultants, bankers and financial advisors) (collectively, “Representatives”), each party agrees to treat any information concerning the\nother party (whether prepared by the other party, its advisors or otherwise and irrespective of the form of communication) which is or has been\nfurnished to the party or its Representatives by the other party or by the other party’s Representatives (herein collectively referred to as the\n“Evaluation Material”) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions hereinafter set\nforth.\nAccordingly, each party hereby agrees that:\n1. The term “Evaluation Material” shall include, without limitation, all financial, business, operating and other data, reports, interpretations,\nforecasts and records provided by each party or its Representatives concerning such party and all notes, analyses, compilations, studies,\ninterpretations and other documents prepared by the other party or its Representatives that contain, reflect or are based upon, in whole or in\npart, such information. The term “Evaluation Material” shall not include information that (i) is or becomes publicly known other than as a\nresult of a disclosure by the receiving party or its\nRepresentatives in breach of this Agreement, (ii) was in the receiving party’s possession prior to its being furnished to the receiving party by\nthe disclosing party or any of its Representatives, (iii) became available to the receiving party on a non-confidential basis from a source other\nthan the disclosing party or any of its Representatives, or (iv) consists of information furnished or obtained pursuant to and in accordance with\nthe license agreement, dated as of July 9, 1999 (as amended to date), between ANNE KLEIN, a division of Kasper, A.S .L ., Ltd., and Maxwell\nand to which Jones Investment Co. Inc. is currently a party (it being understood that such information shall be subject to the provisions of such\nlicense agreement), provided that in the case of (ii) and (iii) above, the source of the information is not, to the knowledge of the receiving\nparty, bound by a confidentiality agreement with, or any other contractual, legal or fiduciary obligation of confidentiality to, the disclosing\nparty or any other person with respect to the information.\n2. The Evaluation Material shall be kept confidential by each party and its Representatives and shall be used by each party and its\nRepresentatives solely for the purpose of evaluating a Transaction. Except as provided in, and in compliance with, paragraph 4 below, each\nparty and its Representatives shall not disclose any of the Evaluation Material to any person (including, without limitation, any joint-venturer\nor provider of equity or debt financing, prospective or otherwise, or any of their subsidiaries, affiliates or divisions or any directors, officers,\nemployees, agents, representatives or advisors of any of them (collectively, “Providers”)) in any manner whatsoever, provided that each party\nmay disclose the Evaluation Material (i) to the extent that the other party gives its prior written consent (provided that, upon the execution and\ndelivery of a definitive agreement between the parties regarding a Transaction, such prior written consent shall not be required with respect to\nany disclosure to a Provider of debt financing) and (ii) to such party’s Representatives that need to know information in the Evaluation\nMaterial for the sole purpose of evaluating a Transaction, so long as such Representatives agree to keep that information confidential in\naccordance with the terms of this Agreement. In any event, each party shall be responsible for a breach of this Agreement by its\nRepresentatives and, at its sole expense, shall take all reasonable actions, including court proceedings, to restrain its Representatives from\nprohibited or unauthorized disclosure or use of the Evaluation Material.\n3. Except as required by law, rule, regulation, court order, subpoena or other legal process, each party and its Representatives shall not, without\nthe prior written consent of the other party, disclose to any other person (including, without limitation, any Providers), other than such party’s\nRepresentatives that need to know such information for the sole purpose of evaluating a Transaction, so long as such Representatives agree to\nkeep that information confidential in accordance with the terms of this Agreement, (i) the fact that the Evaluation Material exists or has been\nmade available to it or its Representatives, (ii) that discussions or negotiations are taking place concerning a Transaction or involving the other\nparty with respect thereto or (iii) any of the terms, conditions or other facts with respect to a Transaction, including, without limitation, the\nstatus thereof or the subject matter of this Agreement. For purposes of this Agreement, the term “person” shall be broadly interpreted to\ninclude the media and any individual, corporation, partnership, group or other entity. Notwithstanding anything in this Agreement to the\ncontrary, the\n2\nparties agree and acknowledge that (a) a party may disclose matters that are described in clauses (i), (ii) and (iii) of this paragraph 3 if, upon\nthe advice of and after consultation with outside legal counsel, the party determines in good faith that such matters are required to be disclosed\npursuant to the requirements of applicable Federal securities laws, including the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”), and the rules and regulations promulgated thereunder, and (b) the parties may disclose, and file with the Securities and Exchange\nCommission, this Agreement.\n4. If either party or any of its Representatives are requested by, or required by, court order, subpoena or other similar legal process, to disclose\nany of the Evaluation Material, it shall provide the other party with prompt written notice of any such request or requirement so that the other\nparty may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement, and in the\nabsence of such protective order or other remedy or the receipt of a waiver from the disclosing party, if the receiving party or any of its\nRepresentatives are, based upon the advice of legal counsel and in connection with any such request or requirement, legally obligated to\ndisclose any of the Evaluation Material, the receiving party or its Representatives may, without liability hereunder, disclose only such portion\nof the Evaluation Material that such legal counsel advises is legally required to be disclosed, provided that in that connection the receiving\nparty shall use its reasonable best efforts to preserve the confidentiality of such portion of the Evaluation Material, including, without\nlimitation, cooperating with the disclosing party to obtain an appropriate protective order or other reliable assurance that confidential treatment\nwill be accorded such portion of the Evaluation Material.\n5. If either party decides that it does not wish to proceed with a Transaction, it shall promptly inform the other party of that decision. In that case,\nor at any time upon the request of the disclosing party for any reason, the receiving party and its Representatives shall promptly destroy or\ndeliver to the disclosing party all Evaluation Material in its or its Representatives’ possession. Compliance by a receiving party and its\nRepresentatives with the preceding provisions regarding the destruction or return of Evaluation Material shall, upon the disclosing party’s\nrequest, be confirmed in writing to the disclosing party. Notwithstanding the destruction or return of the Evaluation Material, each party and its\nRepresentatives shall continue to be bound by its confidentiality and other obligations hereunder.\n6. Each party understands and acknowledges that neither party nor any of their Representatives or stockholders makes any representation or\nwarranty, express or implied, concerning the accuracy or completeness of the Evaluation Material. Each party agrees that neither party nor any\nof their Representatives or stockholders shall have any liability to the other party or to any of the other party’s Representatives or stockholders\nrelating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or\nwarranties that are made in a final definitive agreement regarding a Transaction, when, as and if executed and delivered, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect.\n3\n7. For a period of two years from the date of this Agreement, neither party shall, without the prior written consent of the other party, directly or\nindirectly, solicit for employment any employee of the other party with whom a party had contact or who became known to such party in\nconnection with its consideration of a Transaction; provided, however, that the foregoing provision shall not prevent such party from\nemploying any such person who (i) initiates discussions regarding such employment without any direct or indirect solicitation by or\nencouragement from such party, (ii) responds to a general media advertisement or non-directed search inquiry or (iii) has been terminated by\nthe other party prior to commencement of employment discussions between such party and such person.\n8. Each party understands and agrees that no contract or agreement providing for any Transaction between them shall be deemed to exist between\nthem unless and until a final definitive agreement has been executed and delivered, and each party hereby waives, in advance, any claims\n(including, without limitation, breach of contract and tortious interference claims) in connection with any Transaction involving the other party\nunless and until the parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive\nagreement regarding a Transaction between them has been executed and delivered, neither party shall be under any legal obligation of any kind\nwhatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party\nfurther acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made to it or its\nRepresentatives with regard to a Transaction between the parties, and to terminate discussions and negotiations with the other party at any\ntime.\n9. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single\nor partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n10. Money damages are not an adequate remedy for a breach of this Agreement by either party or any of their Representatives, and the parties\nhereto shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. The parties further\nwaive any requirement for the securing or posting of a bond in connection with such equitable relief and acknowledge that equitable relief\nshall not be deemed to be the exclusive remedy for a breach of this Agreement but shall be in addition to all other remedies available at law or\nequity to the parties.\n11. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and no provision of this Agreement\nmay be amended, modified, superseded or waived, in whole or in part, nor any consent given, except by a separate written agreement or\ninstrument executed by the parties. In the event that any provision of this Agreement is held to be illegal or contrary to public policy or\notherwise unenforceable, that provision shall be deemed eliminated herefrom or modified to the extent necessary to make the provision\nenforceable and the validity, legality and enforceability of the remaining provisions of this Agreement (including such provision as modified)\nshall not in any way be affected or impaired thereby.\n4\n12. This Agreement shall benefit and bind successors and permitted assigns of the parties. Neither party may assign any of its rights or delegate\nany of its duties under this Agreement, including by operation of law, without the prior written consent of the other party, and any purported\nassignment not consented to shall be absolutely void and of no force and effect.\n13. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of law\nprovisions thereof. Each party hereto irrevocably and unconditionally submits to the non-exclusive jurisdiction of any State or Federal court\nsitting in New York City over any suit, action or proceeding arising out of or relating to this Agreement. Each party hereby agrees that service\nof any process, summons, notice or document by U.S. registered mail addressed to the address set forth on the first page of this Agreement\nshall be effective service of process for any action, suit or proceeding brought against it in any such court.\n14. This Agreement shall terminate upon the earlier of (i) the third anniversary of the date of this Agreement and (ii) the consummation of a\nTransaction.\n15. This Agreement may be executed by the parties hereto in counterparts, both of which, taken together, shall constitute one and the same\nAgreement.\n16. Nothing in this Agreement shall prevent either party from disclosing any information required by the proxy rules; provided, however, that this\nparagraph 16 shall not apply to financial projections (the disclosure of which financial projections shall require the prior written consent of the\nproviding party).\n[Signatures on following page.]\n5\nPlease confirm your agreement to the foregoing by signing and returning the accompanying copy of this Agreement, whereupon this Agreement\nshall become binding on the parties hereto and on their respective successors and permitted assignees.\nVery truly yours,\nMAXWELL SHOE COMPANY INC.\nBy:\n/s/ JAMES J. TINAGERO\nName: James J. Tinagero\nTitle: Chief Operating Officer, Executive\nVice President, Secretary\nAgreed as of the date\nfirst written above:\nJONES APPAREL GROUP, INC.\nBy:\n/s/ IRA M. DANSKY\nName: Ira M. Dansky\nTitle: Executive Vice President, General\nCounsel and Secretary\n6	EX-99.(E)(8) 2 dex99e8.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(8)\nMAXWELL SHOE COMPANY INC.\n101 SPRAGUE STREET, P.O. BOX 37\nREADVILLE (BOSTON), MA 02137-0037\nJune 8, 2004\nJones Apparel Group, Inc.\n250 Rittenhouse Circle\nBristol, Pennsylvania 19007\nAttention: Peter Boneparth\nMUTUAL CONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nThis confidentiality agreement (this “Agreement”) is entered into as of the date set forth above between Maxwell Shoe Company Inc., a Delaware\ncorporation (the “Maxwell”), and Jones Apparel Group, Inc. (“Jones”), a Pennsylvania corporation.\nIn connection with the consideration by each party hereto of a possible negotiated transaction, including, without limitation, a possible business\ncombination or other business transaction (a “Transaction”), with the other party hereto and/or its subsidiaries, affiliates or divisions (references\nherein to each “party” shall include subsidiaries, affiliates and divisions of such party), each party is prepared to make available to the other party\ncertain information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished\nto the other party and the other party’s directors, officers, employees, agents, representatives or advisors (including, without limitation, attorneys,\naccountants, consultants, bankers and financial advisors) (collectively, “Representatives”), each party agrees to treat any information concerning the\nother party (whether prepared by the other party, its advisors or otherwise and irrespective of the form of communication) which is or has been\nfurnished to the party or its Representatives by the other party or by the other party’s Representatives (herein collectively referred to as the\n“Evaluation Material”) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions hereinafter set\nforth.\nAccordingly, each party hereby agrees that:\n1. The term “Evaluation Material” shall include, without limitation, all financial, business, operating and other data, reports, interpretations,\nforecasts and records provided by each party or its Representatives concerning such party and all notes, analyses, compilations, studies,\ninterpretations and other documents prepared by the other party or its Representatives that contain, reflect or are based upon, in whole or in\npart, such information. The term “Evaluation Material” shall not include information that (i) is or becomes publicly known other than as a\nresult of a disclosure by the receiving party or its\nRepresentatives in breach of this Agreement, (ii) was in the receiving party’s possession prior to its being furnished to the receiving party by\nthe disclosing party or any of its Representatives, (iii) became available to the receiving party on a non-confidential basis from a source other\nthan the disclosing party or any of its Representatives, or (iv) consists of information furnished or obtained pursuant to and in accordance with\nthe license agreement, dated as of July 9, 1999 (as amended to date), between ANNE KLEIN, a division of Kasper, A.S.L., Ltd., and Maxwell\nand to which Jones Investment Co. Inc. is currently a party (it being understood that such information shall be subject to the provisions of such\nlicense agreement), provided that in the case of (ii) and (iii) above, the source of the information is not, to the knowledge of the receiving\nparty, bound by a confidentiality agreement with, or any other contractual, legal or fiduciary obligation of confidentiality to, the disclosing\nparty or any other person with respect to the information.\nThe Evaluation Material shall be kept confidential by each party and its Representatives and shall be used by each party and its\nRepresentatives solely for the purpose of evaluating a Transaction. Except as provided in, and in compliance with, paragraph 4 below, each\nparty and its Representatives shall not disclose any of the Evaluation Material to any person (including, without limitation, any joint-venturer\nor provider of equity or debt financing, prospective or otherwise, or any of their subsidiaries, affiliates or divisions or any directors, officers,\nemployees, agents, representatives or advisors of any of them (collectively, “Providers”)) in any manner whatsoever, provided that each party\nmay disclose the Evaluation Material (i) to the extent that the other party gives its prior written consent (provided that, upon the execution and\ndelivery of a definitive agreement between the parties regarding a Transaction, such prior written consent shall not be required with respect to\nany disclosure to a Provider of debt financing) and (ii) to such party’s Representatives that need to know information in the Evaluation\nMaterial for the sole purpose of evaluating a Transaction, so long as such Representatives agree to keep that information confidential in\naccordance with the terms of this Agreement. In any event, each party shall be responsible for a breach of this Agreement by its\nRepresentatives and, at its sole expense, shall take all reasonable actions, including court proceedings, to restrain its Representatives from\nprohibited or unauthorized disclosure or use of the Evaluation Material.\nExcept as required by law, rule, regulation, court order, subpoena or other legal process, each party and its Representatives shall not, without\nthe prior written consent of the other party, disclose to any other person (including, without limitation, any Providers), other than such party’s\nRepresentatives that need to know such information for the sole purpose of evaluating a Transaction, so long as such Representatives agree to\nkeep that information confidential in accordance with the terms of this Agreement, (i) the fact that the Evaluation Material exists or has been\nmade available to it or its Representatives, (ii) that discussions or negotiations are taking place concerning a Transaction or involving the other\nparty with respect thereto or (iii) any of the terms, conditions or other facts with respect to a Transaction, including, without limitation, the\nstatus thereof or the subject matter of this Agreement. For purposes of this Agreement, the term “person” shall be broadly interpreted to\ninclude the media and any individual, corporation, partnership, group or other entity. Notwithstanding anything in this Agreement to the\ncontrary, the\nparties agree and acknowledge that (a) a party may disclose matters that are described in clauses (i), (ii) and (iii) of this paragraph 3 if, upon\nthe advice of and after consultation with outside legal counsel, the party determines in good faith that such matters are required to be disclosed\npursuant to the requirements of applicable Federal securities laws, including the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”), and the rules and regulations promulgated thereunder, and (b) the parties may disclose, and file with the Securities and Exchange\nCommission, this Agreement.\nIf either party or any of its Representatives are requested by, or required by, court order, subpoena or other similar legal process, to disclose\nany of the Evaluation Material, it shall provide the other party with prompt written notice of any such request or requirement so that the other\nparty may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement, and in the\nabsence of such protective order or other remedy or the receipt of a waiver from the disclosing party, if the receiving party or any of its\nRepresentatives are, based upon the advice of legal counsel and in connection with any such request or requirement, legally obligated to\ndisclose any of the Evaluation Material, the receiving party or its Representatives may, without liability hereunder, disclose only such portion\nof the Evaluation Material that such legal counsel advises is legally required to be disclosed, provided that in that connection the receiving\nparty shall use its reasonable best efforts to preserve the confidentiality of such portion of the Evaluation Material, including, without\nlimitation, cooperating with the disclosing party to obtain an appropriate protective order or other reliable assurance that confidential treatment\nwill be accorded such portion of the Evaluation Material.\nIf either party decides that it does not wish to proceed with a Transaction, it shall promptly inform the other party of that decision. In that case,\nor at any time upon the request of the disclosing party for any reason, the receiving party and its Representatives shall promptly destroy or\ndeliver to the disclosing party all Evaluation Material in its or its Representatives’ possession. Compliance by a receiving party and its\nRepresentatives with the preceding provisions regarding the destruction or return of Evaluation Material shall, upon the disclosing party’s\nrequest, be confirmed in writing to the disclosing party. Notwithstanding the destruction or return of the Evaluation Material, each party and its\nRepresentatives shall continue to be bound by its confidentiality and other obligations hereunder.\nEach party understands and acknowledges that neither party nor any of their Representatives or stockholders makes any representation or\nwarranty, express or implied, concerning the accuracy or completeness of the Evaluation Material. Each party agrees that neither party nor any\nof their Representatives or stockholders shall have any liability to the other party or to any of the other party’s Representatives or stockholders\nrelating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or\nwarranties that are made in a final definitive agreement regarding a Transaction, when, as and if executed and delivered, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect.\n3\n10. 11. For a period of two years from the date of this Agreement, neither party shall, without the prior written consent of the other party, directly or\nindirectly, solicit for employment any employee of the other party with whom a party had contact or who became known to such party in\nconnection with its consideration of a Transaction; provided, however, that the foregoing provision shall not prevent such party from\nemploying any such person who (i) initiates discussions regarding such employment without any direct or indirect solicitation by or\nencouragement from such party, (ii) responds to a general media advertisement or non-directed search inquiry or (iii) has been terminated by\nthe other party prior to commencement of employment discussions between such party and such person.\nEach party understands and agrees that no contract or agreement providing for any Transaction between them shall be deemed to exist between\nthem unless and until a final definitive agreement has been executed and delivered, and each party hereby waives, in advance, any claims\n(including, without limitation, breach of contract and tortious interference claims) in connection with any Transaction involving the other party\nunless and until the parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive\nagreement regarding a Transaction between them has been executed and delivered, neither party shall be under any legal obligation of any kind\nwhatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party\nfurther acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made to it or its\nRepresentatives with regard to a Transaction between the parties, and to terminate discussions and negotiations with the other party at any\ntime.\nNo failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single\nor partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\nMoney damages are not an adequate remedy for a breach of this Agreement by either party or any of their Representatives, and the parties\nhereto shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. The parties further\nwaive any requirement for the securing or posting of a bond in connection with such equitable relief and acknowledge that equitable relief\nshall not be deemed to be the exclusive remedy for a breach of this Agreement but shall be in addition to all other remedies available at law or\nequity to the parties.\nThis Agreement contains the entire agreement between the parties with respect to the subject matter hereof and no provision of this Agreement\nmay be amended, modified, superseded or waived, in whole or in part, nor any consent given, except by a separate written agreement or\ninstrument executed by the parties. In the event that any provision of this Agreement is held to be illegal or contrary to public policy or\notherwise unenforceable, that provision shall be deemed eliminated herefrom or modified to the extent necessary to make the provision\nenforceable and the validity, legality and enforceability of the remaining provisions of this Agreement (including such provision as modified)\nshall not in any way be affected or impaired thereby.\n12. 13. 14. 15. 16. This Agreement shall benefit and bind successors and permitted assigns of the parties. Neither party may assign any of its rights or delegate\nany of its duties under this Agreement, including by operation of law, without the prior written consent of the other party, and any purported\nassignment not consented to shall be absolutely void and of no force and effect.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of law\nprovisions thereof. Each party hereto irrevocably and unconditionally submits to the non-exclusive jurisdiction of any State or Federal court\nsitting in New York City over any suit, action or proceeding arising out of or relating to this Agreement. Each party hereby agrees that service\nof any process, summons, notice or document by U.S. registered mail addressed to the address set forth on the first page of this Agreement\nshall be effective service of process for any action, suit or proceeding brought against it in any such court.\nThis Agreement shall terminate upon the earlier of (i) the third anniversary of the date of this Agreement and (ii) the consummation of a\nTransaction.\nThis Agreement may be executed by the parties hereto in counterparts, both of which, taken together, shall constitute one and the same\nAgreement.\nNothing in this Agreement shall prevent either party from disclosing any information required by the proxy rules; provided, however, that this\nparagraph 16 shall not apply to financial projections (the disclosure of which financial projections shall require the prior written consent of the\nproviding party).\n[Signatures on following page.]\n5\nPlease confirm your agreement to the foregoing by signing and returning the accompanying copy of this Agreement, whereupon this Agreement\nshall become binding on the parties hereto and on their respective successors and permitted assignees.\nVery truly yours,\nMAXWELL SHOE COMPANY INC.\nBy: /s/ JAMES J. TINAGERO\nName: James J. Tinagero\nTitle: Chief Operating Officer, Executive\nVice President, Secretary\nAgreed as of the date\nfirst written above:\nJONES APPAREL GROUP, INC.\nBy: /s/ IRA M. DANSKY\nName: Ira M. Dansky\nTitle: Executive Vice President, General\nCounsel and Secretary	X-99.(E)(8) 2 dex99e8.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(8)\nMAXWELL SHOE COMPANY INC.\n101 SPRAGUE STREET, P.O. BOX 37\nREADVILLE (BOSTON), MA 02137-0037\nJune 8, 2004\nJones Apparel Group, Inc.\n250 Rittenhouse Circle\nBristol, Pennsylvania 19007\nAttention: Peter Boneparth\nMUTUAL CONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nThis confidentiality agreement (this "Agreement") is entered into as of the date set forth above between Maxwell Shoe Company Inc., a Delaware\ncorporation (the "Maxwell"), and Jones Apparel Group, Inc. ("Jones"), a Pennsylvania corporation.\nIn connection with the consideration by each party hereto of a possible negotiated transaction, including, without limitation, a possible business\ncombination or other business transaction (a "Transaction"), with the other party hereto and/or its subsidiaries, affiliates or divisions (references\nherein to each "party" shall include subsidiaries, affiliates and divisions of such party), each party is prepared to make available to the other party\ncertain information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished\nto the other party and the other party's directors, officers, employees, agents, representatives or advisors (including, without limitation, attorneys,\naccountants, consultants, bankers and financial advisors) (collectively, "Representatives"), each party agrees to treat any information concerning the\nother party (whether prepared by the other party, its advisors or otherwise and irrespective of the form of communication) which is or has been\nfurnished to the party or its Representatives by the other party or by the other party's Representatives (herein collectively referred to as the\n"Evaluation Material") in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions hereinafter\nset\nforth.\nAccordingly, each party hereby agrees that:\n1.\nThe term "Evaluation Material" shall include, without limitation, all financial, business, operating and other data, reports, interpretations,\nforecasts and records provided by each party or its Representatives concerning such party and all notes, analyses, compilations, studies,\ninterpretations and other documents prepared by the other party or its Representatives that contain, reflect or are based upon, in whole or in\npart, such information. The term "Evaluation Material" shall not include information that (i) is or becomes publicly known other than as a\nresult of a disclosure by the receiving party or its\nRepresentatives in breach of this Agreement, (ii) was in the receiving party's possession prior to its being furnished to the receiving party by\nthe disclosing party or any of its Representatives, (iii) became available to the receiving party on a non-confidential basis from a source other\nthan the disclosing party or any of its Representatives, or (iv) consists of information furnished or obtained pursuant to and in accordance with\nthe license agreement, dated as of July 9, 1999 (as amended to date), between ANNE KLEIN, a division of Kasper, A.S.L., Ltd., and Maxwell\nand to which Jones Investment Co. Inc. is currently a party (it being understood that such information shall be subject to the provisions of such\nlicense agreement), provided that in the case of (ii) and (iii) above, the source of the information is not, to the knowledge of the receiving\nparty, bound by a confidentiality agreement with, or any other contractual, legal or fiduciary obligation of confidentiality to, the disclosing\nparty or any other person with respect to the information.\n2.\nThe Evaluation Material shall be kept confidential by each party and its Representatives and shall be used by each party and its\nRepresentatives solely for the purpose of evaluating a Transaction. Except as provided in, and in compliance with, paragraph 4 below, each\nparty and its Representatives shall not disclose any of the Evaluation Material to any person (including, without limitation, any joint-venturer\nor provider of equity or debt financing, prospective or otherwise, or any of their subsidiaries, affiliates or divisions or any directors, officers,\nemployees, agents, representatives or advisors of any of them (collectively, "Providers")) in any manner whatsoever, provided that each party\nmay disclose the Evaluation Material (i) to the extent that the other party gives its prior written consent (provided that, upon the execution and\ndelivery of a definitive agreement between the parties regarding a Transaction, such prior written consent shall not be required with respect to\nany disclosure to a Provider of debt financing) and (ii) to such party's Representatives that need to know information in the Evaluation\nMaterial for the sole purpose of evaluating a Transaction, so long as such Representatives agree to keep that information confidential in\naccordance with the terms of this Agreement. In any event, each party shall be responsible for a breach of this Agreement by its\nRepresentatives and, at its sole expense, shall take all reasonable actions, including court proceedings, to restrain its Representatives from\nprohibited or unauthorized disclosure or use of the Evaluation Material.\n3.\nExcept as required by law, rule, regulation, court order, subpoena or other legal process, each party and its Representatives shall not, without\nthe prior written consent of the other party, disclose to any other person (including, without limitation, any Providers), other than such party's\nRepresentatives that need to know such information for the sole purpose of evaluating a Transaction, so long as such Representatives agree to\nkeep that information confidential in accordance with the terms of this Agreement, (i) the fact that the Evaluation Material exists or has been\nmade available to it or its Representatives, (ii) that discussions or negotiations are taking place concerning a Transaction or involving the other\nparty with respect thereto or (iii) any of the terms, conditions or other facts with respect to a Transaction, including, without limitation, the\nstatus thereof or the subject matter of this Agreement. For purposes of this Agreement, the term "person" shall be broadly interpreted to\ninclude the media and any individual, corporation, partnership, group or other entity. Notwithstanding anything in this Agreement to the\ncontrary, the\n2\nparties agree and acknowledge that (a) a party may disclose matters that are described in clauses (i), (ii) and (iii) of this paragraph 3 if, upon\nthe advice of and after consultation with outside legal counsel, the party determines in good faith that such matters are required to be disclosed\npursuant to the requirements of applicable Federal securities laws, including the Securities Exchange Act of 1934, as amended (the "Exchange\nAct"), and the rules and regulations promulgated thereunder, and (b) the parties may disclose, and file with the Securities and Exchange\nCommission, this Agreement.\n4.\nIf either party or any of its Representatives are requested by, or required by, court order, subpoena or other similar legal process, to disclose\nany of the Evaluation Material, it shall provide the other party with prompt written notice of any such request or requirement so that the other\nparty may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement, and in the\nabsence of such protective order or other remedy or the receipt of a waiver from the disclosing party, if the receiving party or any of its\nRepresentatives are, based upon the advice of legal counsel and in connection with any such request or requirement, legally obligated to\ndisclose any of the Evaluation Material, the receiving party or its Representatives may, without liability hereunder, disclose only such portion\nof the Evaluation Material that such legal counsel advises is legally required to be disclosed, provided that in that connection the receiving\nparty shall use its reasonable best efforts to preserve the confidentiality of such portion of the Evaluation Material, including, without\nlimitation, cooperating with the disclosing party to obtain an appropriate protective order or other reliable assurance that confidential treatment\nwill be accorded such portion of the Evaluation Material.\n5.\nIf either party decides that it does not wish to proceed with a Transaction, it shall promptly inform the other party of that decision. In that case,\nor at any time upon the request of the disclosing party for any reason, the receiving party and its Representatives shall promptly destroy or\ndeliver to the disclosing party all Evaluation Material in its or its Representatives' possession. Compliance by a receiving party and its\nRepresentatives with the preceding provisions regarding the destruction or return of Evaluation Material shall, upon the disclosing party's\nrequest, be confirmed in writing to the disclosing party. Notwithstanding the destruction or return of the Evaluation Material, each party and its\nRepresentatives shall continue to be bound by its confidentiality and other obligations hereunder.\n6.\nEach party understands and acknowledges that neither party nor any of their Representatives or stockholders makes any representation or\nwarranty, express or implied, concerning the accuracy or completeness of the Evaluation Material. Each party agrees that neither party nor any\nof their Representatives or stockholders shall have any liability to the other party or to any of the other party's Representatives or stockholders\nrelating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or\nwarranties that are made in a final definitive agreement regarding a Transaction, when, as and if executed and delivered, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect.\n3\n7.\nFor a period of two years from the date of this Agreement, neither party shall, without the prior written consent of the other party, directly\nor\nindirectly, solicit for employment any employee of the other party with whom a party had contact or who became known to such party in\nconnection with its consideration of a Transaction; provided, however, that the foregoing provision shall not prevent such party from\nemploying any such person who (i) initiates discussions regarding such employment without any direct or indirect solicitation by or\nencouragement from such party, (ii) responds to a general media advertisement or non-directed search inquiry or (iii) has been terminated by\nthe other party prior to commencement of employment discussions between such party and such person.\n8.\nEach party understands and agrees that no contract or agreement providing for any Transaction between them shall be deemed to exist between\nthem unless and until a final definitive agreement has been executed and delivered, and each party hereby waives, in advance, any claims\n(including, without limitation, breach of contract and tortious interference claims) in connection with any Transaction involving the other party\nunless and until the parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive\nagreement regarding a Transaction between them has been executed and delivered, neither party shall be under any legal obligation of any kind\nwhatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party\nfurther acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made to it or its\nRepresentatives with regard to a Transaction between the parties, and to terminate discussions and negotiations with the other party at any\ntime.\n9.\nNo failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single\nor partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n10. Money damages are not an adequate remedy for a breach of this Agreement by either party or any of their Representatives, and the parties\nhereto shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. The parties further\nwaive any requirement for the securing or posting of a bond in connection with such equitable relief and acknowledge that equitable relief\nshall not be deemed to be the exclusive remedy for a breach of this Agreement but shall be in addition to all other remedies available at law or\nequity to the parties\n11. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and no provision of this Agreement\nmay be amended, modified, superseded or waived, in whole or in part, nor any consent given, except by a separate written agreement or\ninstrument executed by the parties. In the event that any provision of this Agreement is held to be illegal or contrary to public policy\nor\notherwise unenforceable, that provision shall be deemed eliminated herefrom or modified to the extent necessary to make the provision\nenforceable and the validity, legality and enforceability of the remaining provisions of this Agreement (including such provision as modified)\nshall not in any way be affected or impaired thereby.\n4\n12. This Agreement shall benefit and bind successors and permitted assigns of the parties. Neither party may assign any of its rights or delegate\nany of its duties under this Agreement, including by operation of law, without the prior written consent of the other party, and any purported\nassignment not consented to shall be absolutely void and of no force and effect.\n13.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of law\nprovisions thereof. Each party hereto irrevocably and unconditionally submits to the non-exclusive jurisdiction of any State or Federal court\nsitting in New York City over any suit, action or proceeding arising out of or relating to this Agreement. Each party hereby agrees that service\nof any process, summons, notice or document by U.S. registered mail addressed to the address set forth on the first page of this Agreement\nshall be effective service of process for any action, suit or proceeding brought against it in any such court.\n14.\nThis Agreement shall terminate upon the earlier of (i) the third anniversary of the date of this Agreement and (ii) the consummation of a\nTransaction.\n15.\nThis Agreement may be executed by the parties hereto in counterparts, both of which, taken together, shall constitute one and the same\nAgreement.\n16.\nNothing in this Agreement shall prevent either party from disclosing any information required by the proxy rules; provided, however, that this\nparagraph 16 shall not apply to financial projections (the disclosure of which financial projections shall require the prior written consent of the\nproviding party).\n[Signatures on following page.]\n5\nPlease confirm your agreement to the foregoing by signing and returning the accompanying copy of this Agreement, whereupon this Agreement\nshall become binding on the parties hereto and on their respective successors and permitted assignees.\nVery truly yours,\nMAXWELL SHOE COMPANY INC.\nBy:\n/s/ JAMES J. TINAGERO\nName: James J. Tinagero\nTitle: Chief Operating Officer, Executive\nVice President, Secretary\nAgreed as of the date\nfirst written above:\nJONES APPAREL GROUP, INC.\nBy:\n/s/\nIRA M. DANSKY\nName: Ira M. Dansky\nTitle: Executive Vice President, General\nCounsel and Secretary\n6	EX-99.(E)(8) 2 dex99e8.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(8)\nMAXWELL SHOE COMPANY INC.\n101 SPRAGUE STREET, P.O. BOX 37\nREADVILLE (BOSTON), MA 02137-0037\nJune 8, 2004\nJones Apparel Group, Inc.\n250 Rittenhouse Circle\nBristol, Pennsylvania 19007\nAttention: Peter Boneparth\nMUTUAL CONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nThis confidentiality agreement (this “Agreement”) is entered into as of the date set forth above between Maxwell Shoe Company Inc., a Delaware\ncorporation (the “Maxwell”), and Jones Apparel Group, Inc. (“Jones”), a Pennsylvania corporation.\nIn connection with the consideration by each party hereto of a possible negotiated transaction, including, without limitation, a possible business\ncombination or other business transaction (a “Transaction”), with the other party hereto and/or its subsidiaries, affiliates or divisions (references\nherein to each “party” shall include subsidiaries, affiliates and divisions of such party), each party is prepared to make available to the other party\ncertain information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished\nto the other party and the other party’s directors, officers, employees, agents, representatives or advisors (including, without limitation, attorneys,\naccountants, consultants, bankers and financial advisors) (collectively, “Representatives”), each party agrees to treat any information concerning the\nother party (whether prepared by the other party, its advisors or otherwise and irrespective of the form of communication) which is or has been\nfurnished to the party or its Representatives by the other party or by the other party’s Representatives (herein collectively referred to as the\n“Evaluation Material”) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions hereinafter set\nforth.\nAccordingly, each party hereby agrees that:\n1. The term “Evaluation Material” shall include, without limitation, all financial, business, operating and other data, reports, interpretations,\nforecasts and records provided by each party or its Representatives concerning such party and all notes, analyses, compilations, studies,\ninterpretations and other documents prepared by the other party or its Representatives that contain, reflect or are based upon, in whole or in\npart, such information. The term “Evaluation Material” shall not include information that (i) is or becomes publicly known other than as a\nresult of a disclosure by the receiving party or its\nRepresentatives in breach of this Agreement, (ii) was in the receiving party’s possession prior to its being furnished to the receiving party by\nthe disclosing party or any of its Representatives, (iii) became available to the receiving party on a non-confidential basis from a source other\nthan the disclosing party or any of its Representatives, or (iv) consists of information furnished or obtained pursuant to and in accordance with\nthe license agreement, dated as of July 9, 1999 (as amended to date), between ANNE KLEIN, a division of Kasper, A.S .L ., Ltd., and Maxwell\nand to which Jones Investment Co. Inc. is currently a party (it being understood that such information shall be subject to the provisions of such\nlicense agreement), provided that in the case of (ii) and (iii) above, the source of the information is not, to the knowledge of the receiving\nparty, bound by a confidentiality agreement with, or any other contractual, legal or fiduciary obligation of confidentiality to, the disclosing\nparty or any other person with respect to the information.\n2. The Evaluation Material shall be kept confidential by each party and its Representatives and shall be used by each party and its\nRepresentatives solely for the purpose of evaluating a Transaction. Except as provided in, and in compliance with, paragraph 4 below, each\nparty and its Representatives shall not disclose any of the Evaluation Material to any person (including, without limitation, any joint-venturer\nor provider of equity or debt financing, prospective or otherwise, or any of their subsidiaries, affiliates or divisions or any directors, officers,\nemployees, agents, representatives or advisors of any of them (collectively, “Providers”)) in any manner whatsoever, provided that each party\nmay disclose the Evaluation Material (i) to the extent that the other party gives its prior written consent (provided that, upon the execution and\ndelivery of a definitive agreement between the parties regarding a Transaction, such prior written consent shall not be required with respect to\nany disclosure to a Provider of debt financing) and (ii) to such party’s Representatives that need to know information in the Evaluation\nMaterial for the sole purpose of evaluating a Transaction, so long as such Representatives agree to keep that information confidential in\naccordance with the terms of this Agreement. In any event, each party shall be responsible for a breach of this Agreement by its\nRepresentatives and, at its sole expense, shall take all reasonable actions, including court proceedings, to restrain its Representatives from\nprohibited or unauthorized disclosure or use of the Evaluation Material.\n3. Except as required by law, rule, regulation, court order, subpoena or other legal process, each party and its Representatives shall not, without\nthe prior written consent of the other party, disclose to any other person (including, without limitation, any Providers), other than such party’s\nRepresentatives that need to know such information for the sole purpose of evaluating a Transaction, so long as such Representatives agree to\nkeep that information confidential in accordance with the terms of this Agreement, (i) the fact that the Evaluation Material exists or has been\nmade available to it or its Representatives, (ii) that discussions or negotiations are taking place concerning a Transaction or involving the other\nparty with respect thereto or (iii) any of the terms, conditions or other facts with respect to a Transaction, including, without limitation, the\nstatus thereof or the subject matter of this Agreement. For purposes of this Agreement, the term “person” shall be broadly interpreted to\ninclude the media and any individual, corporation, partnership, group or other entity. Notwithstanding anything in this Agreement to the\ncontrary, the\n2\nparties agree and acknowledge that (a) a party may disclose matters that are described in clauses (i), (ii) and (iii) of this paragraph 3 if, upon\nthe advice of and after consultation with outside legal counsel, the party determines in good faith that such matters are required to be disclosed\npursuant to the requirements of applicable Federal securities laws, including the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”), and the rules and regulations promulgated thereunder, and (b) the parties may disclose, and file with the Securities and Exchange\nCommission, this Agreement.\n4. If either party or any of its Representatives are requested by, or required by, court order, subpoena or other similar legal process, to disclose\nany of the Evaluation Material, it shall provide the other party with prompt written notice of any such request or requirement so that the other\nparty may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement, and in the\nabsence of such protective order or other remedy or the receipt of a waiver from the disclosing party, if the receiving party or any of its\nRepresentatives are, based upon the advice of legal counsel and in connection with any such request or requirement, legally obligated to\ndisclose any of the Evaluation Material, the receiving party or its Representatives may, without liability hereunder, disclose only such portion\nof the Evaluation Material that such legal counsel advises is legally required to be disclosed, provided that in that connection the receiving\nparty shall use its reasonable best efforts to preserve the confidentiality of such portion of the Evaluation Material, including, without\nlimitation, cooperating with the disclosing party to obtain an appropriate protective order or other reliable assurance that confidential treatment\nwill be accorded such portion of the Evaluation Material.\n5. If either party decides that it does not wish to proceed with a Transaction, it shall promptly inform the other party of that decision. In that case,\nor at any time upon the request of the disclosing party for any reason, the receiving party and its Representatives shall promptly destroy or\ndeliver to the disclosing party all Evaluation Material in its or its Representatives’ possession. Compliance by a receiving party and its\nRepresentatives with the preceding provisions regarding the destruction or return of Evaluation Material shall, upon the disclosing party’s\nrequest, be confirmed in writing to the disclosing party. Notwithstanding the destruction or return of the Evaluation Material, each party and its\nRepresentatives shall continue to be bound by its confidentiality and other obligations hereunder.\n6. Each party understands and acknowledges that neither party nor any of their Representatives or stockholders makes any representation or\nwarranty, express or implied, concerning the accuracy or completeness of the Evaluation Material. Each party agrees that neither party nor any\nof their Representatives or stockholders shall have any liability to the other party or to any of the other party’s Representatives or stockholders\nrelating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or\nwarranties that are made in a final definitive agreement regarding a Transaction, when, as and if executed and delivered, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect.\n3\n7. For a period of two years from the date of this Agreement, neither party shall, without the prior written consent of the other party, directly or\nindirectly, solicit for employment any employee of the other party with whom a party had contact or who became known to such party in\nconnection with its consideration of a Transaction; provided, however, that the foregoing provision shall not prevent such party from\nemploying any such person who (i) initiates discussions regarding such employment without any direct or indirect solicitation by or\nencouragement from such party, (ii) responds to a general media advertisement or non-directed search inquiry or (iii) has been terminated by\nthe other party prior to commencement of employment discussions between such party and such person.\n8. Each party understands and agrees that no contract or agreement providing for any Transaction between them shall be deemed to exist between\nthem unless and until a final definitive agreement has been executed and delivered, and each party hereby waives, in advance, any claims\n(including, without limitation, breach of contract and tortious interference claims) in connection with any Transaction involving the other party\nunless and until the parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive\nagreement regarding a Transaction between them has been executed and delivered, neither party shall be under any legal obligation of any kind\nwhatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party\nfurther acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made to it or its\nRepresentatives with regard to a Transaction between the parties, and to terminate discussions and negotiations with the other party at any\ntime.\n9. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single\nor partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n10. Money damages are not an adequate remedy for a breach of this Agreement by either party or any of their Representatives, and the parties\nhereto shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. The parties further\nwaive any requirement for the securing or posting of a bond in connection with such equitable relief and acknowledge that equitable relief\nshall not be deemed to be the exclusive remedy for a breach of this Agreement but shall be in addition to all other remedies available at law or\nequity to the parties.\n11. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and no provision of this Agreement\nmay be amended, modified, superseded or waived, in whole or in part, nor any consent given, except by a separate written agreement or\ninstrument executed by the parties. In the event that any provision of this Agreement is held to be illegal or contrary to public policy or\notherwise unenforceable, that provision shall be deemed eliminated herefrom or modified to the extent necessary to make the provision\nenforceable and the validity, legality and enforceability of the remaining provisions of this Agreement (including such provision as modified)\nshall not in any way be affected or impaired thereby.\n4\n12. This Agreement shall benefit and bind successors and permitted assigns of the parties. Neither party may assign any of its rights or delegate\nany of its duties under this Agreement, including by operation of law, without the prior written consent of the other party, and any purported\nassignment not consented to shall be absolutely void and of no force and effect.\n13. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of law\nprovisions thereof. Each party hereto irrevocably and unconditionally submits to the non-exclusive jurisdiction of any State or Federal court\nsitting in New York City over any suit, action or proceeding arising out of or relating to this Agreement. Each party hereby agrees that service\nof any process, summons, notice or document by U.S. registered mail addressed to the address set forth on the first page of this Agreement\nshall be effective service of process for any action, suit or proceeding brought against it in any such court.\n14. This Agreement shall terminate upon the earlier of (i) the third anniversary of the date of this Agreement and (ii) the consummation of a\nTransaction.\n15. This Agreement may be executed by the parties hereto in counterparts, both of which, taken together, shall constitute one and the same\nAgreement.\n16. Nothing in this Agreement shall prevent either party from disclosing any information required by the proxy rules; provided, however, that this\nparagraph 16 shall not apply to financial projections (the disclosure of which financial projections shall require the prior written consent of the\nproviding party).\n[Signatures on following page.]\n5\nPlease confirm your agreement to the foregoing by signing and returning the accompanying copy of this Agreement, whereupon this Agreement\nshall become binding on the parties hereto and on their respective successors and permitted assignees.\nVery truly yours,\nMAXWELL SHOE COMPANY INC.\nBy:\n/s/ JAMES J. TINAGERO\nName: James J. Tinagero\nTitle: Chief Operating Officer, Executive\nVice President, Secretary\nAgreed as of the date\nfirst written above:\nJONES APPAREL GROUP, INC.\nBy:\n/s/ IRA M. DANSKY\nName: Ira M. Dansky\nTitle: Executive Vice President, General\nCounsel and Secretary\n6
+580ee77ac3352f5e2399995955f47f79.pdf	effective_date jurisdiction party term	EX-99.2 3 dex992.htm CONFIDENTIALITY AND NON-SOLICITATION AGREEMENT\nExhibit 99.2\nCONFIDENTIALITY AND NON-SOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY AND NON-SOLICITATION AGREEMENT, (“Agreement”) made as of the 20th day of April, 2006, by and between\nMellon Financial Corporation (“MFC”), and on behalf of Mellon Trust of New England, National Association (“Mellon Trust”), their parent\ncompanies, subsidiaries, affiliates, related entities, successors and assigns (collectively “Mellon”) and Ronald P. O’Hanley (hereinafter “O’Hanley”)\nin consideration of and as a condition precedent to the following additional compensation, the adequacy, sufficiency and receipt of which are hereby\nacknowledged, agree as follows:\nARTICLE 1: CONSIDERATION\nPursuant to the April 19, 2006 letter from Robert P. Kelly to O’Hanley, effective April 19, 2006, and in accordance with Section 19 of the January 1,\n2003 Employment Agreement between MFC and O’Hanley, the Employment Agreement was terminated. In accordance with the April 19, 2006\nletter which is incorporated by reference, as if fully set forth herein, in exchange for O’Hanley’s execution of this Agreement within thirty (30) days\nof his receipt of the package offered in the April 19, 2006 letter, and as a condition precedent to the package, Mellon agrees to provide O’Hanley\nwith the following:\n(a) Base Salary. O’Hanley’s annual base salary will be increased to $675,000 effective March 1, 2006. Thereafter, subject to annual review;\n(b) Mellon Financial Corporation (MFC) Profit Bonus Plan. O’Hanley’s bonus opportunity under the MFC Profit Bonus Plan will be in\naccordance with, and subject to, the terms of the Plan. O’Hanley’s annual bonus matrix is 300% of base salary at on-target performance, 400%\nof base salary at strong performance and 500% of base salary at outstanding performance. The matrix may be reviewed from time to time and\nadjusted accordingly;\n(c) Long-Term Incentive Award. (i) O’Hanley’s eligibility for an award under the Mellon Financial Corporation Long-Term Profit Incentive\nPlan (2004) (LTPIP) will be in accordance with, and subject to, the terms of the LTPIP as well as any individualized agreements that are\nrequired. O’Hanley’s LTPIP matrix is $1,687,500 for on-target performance, $2,250,000 for strong performance and $3,000,000 for\noutstanding performance. This matrix may be reviewed from time to time and adjusted accordingly; and (ii) O’Hanley will receive a special\none-time award under the LTPIP of $1,700,000 comprised of 40 percent stock options, 20 percent restricted stock, and 40 percent Total\nShareholder Return (“TSR”) performance shares. Award levels under the LTPIP and the Award are expressed in terms of McLagan valuation\nmethodology. Awards will be made utilizing Towers Perrin Long-Term Incentive Award calibration methodology;\n(d) Involuntary Separation of Employment. In the event that O’Hanley’s employment with Mellon involuntarily terminates due to either a\nWithout Cause Termination or a Constructive Discharge, as those terms are defined in the April 19, 2006 letter and provided that he executes a\nseparation agreement and general release of claims in a form acceptable to Mellon’s legal counsel, Mellon agrees to provide O’Hanley with the\nfollowing cash and non-cash benefits. If Mellon\ndetermines that it is necessary or appropriate for any payments, including benefits which cannot be provided on a nontaxable basis, to be\ndelayed in order to avoid additional tax, interest and/or penalties under Section 409A of the Internal Revenue Code (“Code”), then the\npayments and benefits would not be made before the date which is the first day following the six (6) month anniversary of the date of the\ninvoluntary separation (or upon earlier death).\n(i) Transition Pay. O’Hanley will receive seventy-eight (78) weeks of separation pay in an amount equivalent to his base salary in effect,\nless all applicable taxes and deductions (“Separation Pay Amount”). Such Separation Pay Amount shall be reduced by the full amount\nof the cash displacement pay benefits (before taxes and deductions) actually paid to him pursuant to the Mellon Financial Corporation\nDisplacement Program, Mellon Supplemental Unemployment Benefit Plan and/or Change in Control Agreement in effect and applicable\nto him and for which he is eligible. Such reduced amount shall be hereinafter referred to as “Transition Pay”. The time between the date\nupon which O’Hanley begins to receive Transition Pay and the date upon which his Transition Pay ceases will be the “Transition\nPeriod.” Subject to Mellon’s determination of a Code Section 409A delay, the first twelve (12) periodic installments will be delayed\nuntil the first day following the six (6) month anniversary of O’Hanley’s separation from service. After which, Transition Pay will be\npaid in periodic installments (with the first payment after the Code Section 409A delay including the prior installment payments) on\nregularly scheduled pay dates until the final installment of Transition Pay;\n(ii) Continued Health and Life Insurance Coverage. To the extent permissible under the law and the general terms and provisions of such\nplans or programs and in accordance with the provisions, thereof, O’Hanley will receive continuation of his existing health and life\ninsurance coverages (except short-term or long-term disability coverage) under Mellon’s benefit programs as such may be amended from\ntime-to-time under the same terms as such coverages are provided to similarly situated separated Mellon employees. Such coverages will\ncontinue until the earlier of: (i) the date he fails to pay any applicable employee premium; (ii) the end of the Transition Period; (iii) the\ndate Mellon discontinues the particular coverage(s) and/or options for all similarly situated separated employees; and/or (iv) his\nemployment with another entity or self-employment;\n(iii) MFC Profit Bonus Plan. Although awards under incentive plans are completely discretionary, in the year active employment ceases,\nmanagement will recommend that O’Hanley receive a bonus in the amount equal to the average of his prior two-year bonus annualized\nawards, less applicable taxes and deductions to be paid all in cash. The award will be prorated based upon the number of months worked\nin the calendar year in which his active employment ceases. Subject to Mellon’s determination of a Code Section 409A delay, the\npayment date will be no later than March 15 of the subsequent year; and\n(iv) Special Bonus Award. O’Hanley will receive a special bonus award equal to one and one-half times the average of his prior two-year\nbonus\n2of10\nannualized awards, less applicable taxes and deductions. The special bonus award will be paid all in cash 30 days following the last\nTransition Pay installment payment date.\nARTICLE 2: CONFIDENTIAL INFORMATION\n2.01 Definition of and Ownership of Confidential Information. O’Hanley recognizes, acknowledges and agrees that:\n(a) In the course of his employment by Mellon Trust and as a Vice Chairman of MFC he has had and it will be necessary for him to be given or\nhave access to and become informed of confidential or proprietary information which Mellon possesses or to which Mellon has rights, which\nrelates to Mellon and which is not generally known to the public or in the trade and is a competitive asset of Mellon, or information which\nconstitutes a “trade secret” of Mellon, as that term is defined by the Uniform Trade Secrets Act, as amended and approved by the National\nConference of Commissioners on Uniform State Laws in 1985, including without limitation, and regardless of whether such is original,\nduplicated, computerized, memorized, handwritten or in any other form: (i) Mellon’s planning data, records, observations and marketing\nstrategies or techniques, computer programs, system documentation, manuals, formulae, processes, operation methods, machines,\ncompositions; (ii) non-public terms of any new products, data bases, and investment strategies of Mellon, trading, arbitrage and/or hedging\ntechniques or strategies; (iii) non-public information relating to Mellon personnel matters; (iv) Mellon’s financial results and information about\nits business condition; (v) non-public terms of any investment, management or advisory agreement or other material contract of Mellon;\n(vi) Mellon’s proprietary software and related documents; (vii) Mellon’s customer and client and potential customer prospecting lists,\nidentifying information and contact persons at such customers and clients and prospects and Mellon Paid Channel (as hereinafter defined);\n(viii) non-public material information concerning Mellon’s clients or customers or their operations, condition (financial or otherwise); and\n(ix) patents, patents applications, copyrights, service marks and other intellectual property, Intellectual Property (as defined below)\n(collectively referred to herein as the “Confidential Information”);\n(b) Confidential Information shall not include information generally known to the public other than by virtue of a breach of this Agreement by\nO’Hanley, information rightfully known to O’Hanley without limitation on disclosure prior to its receipt from Mellon or a customer of Mellon,\ninformation rightfully received from a third party without limitation on disclosure and information generally made available by Mellon or a\nclient or customer of Mellon to third parties without restriction on disclosure; or information required to be disclosed by law, rule, regulation or\norder without an obligation of confidentiality on the part of the recipient, provided that prior to making any disclosure under this clause\nO’Hanley shall, if permissible under the law, rule or regulation, provide Mellon with notice and the opportunity to contest such disclosure; and\n(c) The Confidential Information has been developed or acquired by Mellon with significant expenditures of time, effort and money and is\nunique and cannot be lawfully duplicated or easily acquired. The Confidential Information is the sole and\n3of10\nexclusive property of Mellon (and in some cases the property of a customer of Mellon), regardless of its form or format and whether compiled\nor created by O’Hanley or Mellon. Mellon takes all reasonable measures to maintain its confidentiality and to guard its secrecy. The\nConfidential Information is not generally known outside Mellon and within Mellon this information is confidential and used only on a “need to\nknow” basis. The Confidential Information is unique and cannot be lawfully duplicated or easily acquired. O’Hanley agrees that the\nConfidential Information is deserving of trade secret status and protection, as that term is defined by the Uniform Trade Secrets Act, as\namended and approved by the National Conference of Commissioners on Uniform State Laws in 1985.\n2.02 Use of Confidential Information. O’Hanley agrees that the use, except for the sole purpose of conducting business on behalf of Mellon or with\nprior written consent of Mellon, misappropriation or disclosure of the Confidential Information would constitute a breach of trust and could cause\nirreparable injury to Mellon.\n2.03 Nondisclosure of Confidential Information. O’Hanley agrees that it is essential to the protection of Mellon’s goodwill and to the maintenance of\nMellon’s competitive position that the Confidential Information be kept secret and O’Hanley agrees not to disclose the Confidential Information to\nothers or use the Confidential Information to O’Hanley’s own advantage or the advantage of others either during employment or at any time\nthereafter.\n2.04 Return of Mellon Property. O’Hanley agrees that upon the termination of employment, for any reason or no reason, or at any other time Mellon\nmay request, that O’Hanley will immediately return to Mellon all Confidential Information and all of its property, including without limitation, all\ndocuments (including copies) and information, however maintained (including computer files, tapes, and recordings), concerning Mellon or acquired\nby O’Hanley in the course and scope of employment (excluding only those documents relating solely to O’Hanley’s own salary and benefits). In\naddition, O’Hanley agrees that he will delete, all information concerning Mellon’s business, customers and prospective customers, including\ncustomer contact information (e.g., names, addresses and telephone numbers), from his personal computer devices, including laptops, cellular\nphones, palm pilots and similar devices.\n2.05 Performance Record. O’Hanley understands, acknowledges and agrees that the investment performance record (including without limitation\nperformance ratings or rankings provided by any rating or ranking service) of any fund(s) or accounts of Mellon customers with which he is\nassociated while employed at Mellon is attributable to teams of professionals of Mellon and not solely the efforts of any single individual and that,\ntherefore, the performance records of the fund(s) or accounts managed by Mellon are and shall be the exclusive property of Mellon.\nARTICLE 3: NON-SOLICITATION OF ACCOUNTS AND EMPLOYEES\n3.01 Non-solicitation of Clients or Customers. O’Hanley covenants and agrees that during his employment with Mellon and for a period of twelve\n(12) months following the termination of his employment, for any reason or no reason, including but not limited to resignation of employment, that\n(“Restricted Period”), O’Hanley, whether directly or indirectly, in any capacity whatsoever (whether as proprietor, partner, investor, shareholder,\ndirector, officer,\n4of10\nemployer, consultant, independent contractor, co-venturer, financier, agent, representative or otherwise) shall not:\n(a) provide or assist with the provision of Relevant Financial Services to a Client or Customer of Mellon, except as an employee of Mellon,\nprovided that this Article 3 does not prohibit O’Hanley from being employed by or affiliated or associated with any person or entity after\ntermination of his employment with Mellon so long as he does not have any involvement on behalf of any person or entity with respect to\nsoliciting, managing, administering, supporting or retaining the Relevant Financial Services business provided or proposed to be provided to a\nCustomer or Client of Mellon; and/or\n(b) (i) solicit by mail, phone, personal meeting, or by any other means, either directly or indirectly, the business or patronage of any Customer\nor Client of Mellon for himself or any other person or entity other than Mellon for the purpose of providing Relevant Financial Services;\n(ii) divert, entice, or otherwise take away from Mellon the business or patronage of any Customer or Client of Mellon, or attempt to do so; or\n(iii) solicit or induce any Customer or Client of Mellon to terminate or reduce its relationship with Mellon.\n3.02 Non-solicitation of Employees. O’Hanley covenants and agrees that during his employment with Mellon and during the Restricted Period that\nhe shall not, directly or indirectly, hire or employ, recruit solicit or induce, or attempt to hire, recruit solicit or induce, (or in any way assist another\nperson or enterprise in recruiting, soliciting or inducing) any employee of Mellon to leave Mellon or any affiliate for any reason whatsoever.\n3.03 Reasonableness of Restricted Period. O’Hanley acknowledges and agrees that the Restricted Period is reasonable and valid in duration and\nscope and in all other respects. O’Hanley also represents that his experience and capabilities are such that the enforcement of the provisions of this\nAgreement will not prevent him from earning a livelihood, and he acknowledges that it would cause Mellon serious and irreparable injury and cost if\nhe were to use his ability and knowledge in competition with Mellon or to otherwise breach the obligations contained in this Agreement.\n3.04 Extension of Restricted Period. O’Hanley agrees that the nonsolicitation obligations contained in this Agreement shall be extended by the\nlength of time during which he shall have been in breach of any of the provisions.\n3.05 Definitions. O’Hanley understands that for the purposes of this Agreement:\n(a) “Relevant Financial Services” shall mean: (i) institutional asset and investment management and related advisory services; (ii) international\nasset and investment management and related advisory services; (iii) mutual fund management and related advisory services; and (iv) and any\nother services or products provided by Mellon from time to time which are within the scope of O’Hanley’s responsibilities or at any time\nduring the twelve (12) months preceding the termination of his employment were within the scope of his responsibilities; and\n(b) “Customer” or “Client” of Mellon means any person or entity who (i) is receiving Relevant Financial Services from Mellon, or (ii) on the\ndate of termination of his employment with Mellon or its parent, subsidiary, affiliate related entity or\n5of10\nsuccessor received such services for compensation at any time during the one (1) year period immediately preceding the date of termination of\nhis employment, or (iii) O’Hanley solicited, directly or indirectly, in whole or in part, on behalf of Mellon to provide financial services within\none (1) year preceding the termination of his employment.\nARTICLE 4: DUTY OF LOYALTY\n4.01 Duty of Loyalty to Mellon. O’Hanley agrees that at all times during his employment by Mellon and in his position as Vice Chairman of MFC,\nhe owes Mellon a duty of loyalty and a duty to act in good faith. O’Hanley agrees that during his employment he will not individually, or in\ncombination with any other employer, employee or competitor of Mellon, violate or breach the terms of this agreement, Code of Conduct or Mellon\nSecurities Trading Policy.\n4.02 Cooperation. O’Hanley agrees that upon the termination of his employment, for any reason or no reason, including but not limited to\nresignation of employment, that he will cooperate with Mellon, upon reasonable notice and at reasonable times, in the prosecution and defense of\ncomplaints, investigations, litigation, arbitration and mediation of any complaints, claims or actions or regulatory review now in existence or that\nmay be threatened or brought in the future relating to events or occurrences that transpired while employed by Mellon or as Vice Chairman of MFC.\nO’Hanley also agrees that upon Mellon’s request, he will certify that he is in compliance with this Agreement.\n4.03 Prior Employer Restrictions. O’Hanley warrants that he is not subject or party to any agreement, understanding or undertaking that would\nprevent or restrict him from performing his employment duties or working with or on behalf of any customer or client. In addition, O’Hanley\nwarrants that his employment with Mellon does not violate any agreement, understanding or undertaking. Still further, O’Hanley agrees that he will\nnot in the course of performing duties for Mellon violate any confidentiality obligations that he may owe to others.\n4.04 Disclosure of Agreement. O’Hanley acknowledges and agrees to disclose the existence and terms of this Agreement so long as and to the extent\nthat such terms remain in effect to any prospective employer, partner or co-venturer prior to entering into an employment, partnership, or other\nbusiness relationship with such person or entity.\nARTICLE 5: SPECIAL, UNIQUE AND EXTRAORDINARY SERVICES\nO’Hanley acknowledges and agrees that in performing the job duties of his position that he provides Mellon with a special, unique and extraordinary\nservice.\n6of10\nARTICLE 6: WORKS FOR HIRE; PROPRIETARY DEVELOPMENT\n6.01 Property of Mellon. O’Hanley understands and agrees that any and all rights or interests that O’Hanley holds or obtains in any inventions,\nproducts, discoveries, processes, methods, computer software programs, models, techniques, formulae, designs, trade secrets, client, supplier, and\nvendor lists, sales and marketing plans, inventions, discoveries, improvements, copyrights, works of authorship, patent rights, trademarks or service\nmarks, and developments of any kind whatsoever, which are authored, conceived, reduced to practice, made, developed or created (alone or in\nconjunction with others, during regular hours of work otherwise) or otherwise obtained by O’Hanley during employment with Mellon or in the\nperformance of his duties as a Vice Chair of MFC which may directly or directly be useful in or relate to or arise out of such employment with\nMellon are expressly regarded as the exclusive property of Mellon or “works for hire” (the “Intellectual Property” ). The term Intellectual Property\ndoes not include inventions, products, discoveries, processes, methods, computer software programs, models, techniques, formulae, designs, trade\nsecrets, client, supplier, and vendor lists, sales and marketing plans, inventions, discoveries, improvements, copyrights, works of authorship, patent\nrights, trademarks or service marks which were in the possession of O’Hanley prior to his employment by Mellon and which were not obtained from\nor through Mellon.\n6.02 Disclosure; Assignment. O’Hanley agrees to promptly disclose to Mellon any and all such Inventions and deliver to Mellon, upon its\nrequest, a written description of such Intellectual Property and any available documentary or other materials evidencing such Intellectual Property.\nO’Hanley hereby assigns to Mellon the sole and exclusive right to such Intellectual Property and waives any license or other special right which\nO’Hanley may have or accrue therein, and that, upon request of Mellon, O’Hanley will execute and deliver any and all documents or instruments and\ntake any other action which Mellon shall deem necessary to assign to and vest completely in it, to perfect trademark, trade secret, copyright and\npatent protection with respect to, or to otherwise protect Mellon’s trade secrets and proprietary interest in, such Intellectual Property. O’Hanley will\nalso upon Mellon’s request, execute any documents necessary or advisable in the opinion of Mellon’s counsel to direct the issuance of patents,\ntrademarks or copyrights to Mellon or its designated affiliate with respect to such Intellectual Property as are to be Mellon’s exclusive property or to\nvest in Mellon title to such Intellectual Property, the expense of securing any patent, trademark or copyright, however, to be borne by Mellon.\nO’Hanley will hold for sole benefit of Mellon any Intellectual Property which is to be its exclusive property for which no patent, trademark or\ncopyright is issued.\n6.03 Survival. These obligations bind O’Hanley’s heirs and legal representatives and shall continue beyond the termination of O’Hanley’s\nemployment, regardless of reason, with respect to such Intellectual Property conceived of, reduced to practice, or developed by O’Hanley during the\nterm of employment with Mellon.\n6.04 Fees. Mellon agrees to pay any and all copyright, trademark and patent fees and expenses or other costs incurred by O’Hanley for any\nassistance rendered to Mellon pursuant to this Article 6 and to promptly reimburse O’Hanley for all expenses incurred by O’Hanley in perfecting its\nproperty rights in the Inventions. O’Hanley’s obligations to assign Inventions shall not apply to any invention about which O’Hanley can prove that:\n(i) the invention was developed entirely on O’Hanley’s own time and effort; (ii) no equipment, supplies, facilities, resources, trade secrets or\nconfidential information of Mellon was used in\n7of10\nthe development of the invention; (iii) the invention does not relate to the business of Mellon or to Mellon’s actual or anticipated research and\ndevelopment; and (iv) the invention does not result from any work otherwise performed by O’Hanley for Mellon.\nARTICLE 7: REMEDIES\n7.01 Injunctive Relief. O’Hanley agrees that any breach or threatened breach of any of the covenants contained in the Agreement would cause\nimmediate, material and irreparable harm to Mellon and that money damages would not provide an adequate remedy for Mellon to protect and\npreserve the status quo. Therefore, O’HANLEY CONSENTS TO THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER or A\nPRELIMINARY or PERMANENT INJUNCTION ordering that:\n(a) O’Hanley immediately return to Mellon all property and Confidential Information, whether original, duplicated, computerized,\nhandwritten, or in any other form whatsoever, and that O’Hanley be enjoined and restrained from using or disclosing any information\ncontained in such records; and\n(b) For a period of twelve (12) months, O’Hanley be enjoined and restrained from soliciting any client or customer whom O’Hanley served\nor whose name became known to O’Hanley while employed by Mellon or in the performance of his duties with Mellon, in any office\nand in any capacity; and\n(c) For a period of twelve (12) months, O’Hanley be enjoined and restrained from hiring, soliciting, or inducing any employee of Mellon to\nleave Mellon.\n7.02 O’Hanley agrees that Mellon shall have all of the rights and remedies available under law, or in equity, including, but not limited to, injunctive\nrelief, to a party enforcing any such covenant each of such rights and remedies to be independent of the other and severally enforceable including,\nbut not limited to, the right to have such covenants specifically enforced, and the right to require any violating party to account for and pay over to\nMellon all benefits derived or received by such violating party, or any of its subsidiaries or affiliates, as a result of any such breach of covenant.\n7.03 Jurisdiction. For purposes of Article 7, O’Hanley agrees to submit to, and confer exclusive jurisdiction on, the United States District Court or\nthe State Court, which has original jurisdiction for the judicial district, Pittsburgh Pennsylvania or county in which O’Hanley last worked in the\nUnited States for Mellon.\nARTICLE 8: EMPLOYMENT AT WILL\nNOTHING HEREIN IS A PROMISE OF EMPLOYMENT FOR A FIXED TERM. O’HANLEY AGREES THAT HE REMAINS AT ALL TIMES\nAN EMPLOYEE AT WILL. MELLON MAY TERMINATE O’HANLEY’S EMPLOYMENT FOR ANY REASON OR FOR NO REASON, JUST\nAS O’HANLEY MAY RESIGN AT ANY TIME.\n8of10\nARTICLE 9: ASSIGNMENT\nO’Hanley expressly acknowledges and agrees that Mellon may assign this Agreement, and its rights and obligations hereunder, to any other\nindividual, entity or organization that is a direct or indirect subsidiary of Mellon or which acquires (whether by purchase, merger, consolidation or\notherwise) all or substantially all of the business of Mellon, in either case without O’Hanley’s consent and without the necessity that this Agreement\nbe re-signed at the time of such transfer, and the term “Mellon” shall be deemed to include such entity or organization to which this Agreement is\nassigned. Any such transfer shall not in and of itself constitute a termination of O’Hanley’s employment by Mellon.\nARTICLE 10: MISCELLANEOUS\n10.01 Reasonableness; Severability. O’Hanley agrees that the covenants set forth herein are necessary and reasonable to protect Mellon’s\nConfidential Information, goodwill and business interests and therefore, valid in duration, geography and scope and in all other respects. If any court\nor tribunal determines that any of such covenants, or any part thereof, are invalid or unenforceable, the remaining covenants shall not thereby be\naffected and they shall be given full effect, without regard to the invalid portions. If any court or tribunal determined that all, or any part of the\ncovenants contained herein are unenforceable, because of the duration or scope of such provision, or for any other reason, such court or tribunal is\ndirected to reduce the duration or scope of such provision, as the case may be, so that, in its reduced form, such provision shall then be enforceable.\nIf any provision or provisions hereof shall be deemed invalid or unenforceable either in whole or in part, this Agreement shall be deemed amended\nto delete or modify, as necessary, the offending provision or provisions and to alter the bounds thereof in order to render it valid and enforceable.\n10.02 Additional Obligations. O’Hanley agrees that the obligations in this Agreement are in addition to and not in limitation or preemption of, all\nother obligations or prior agreements prior to the effective date of this Agreement, he has with Mellon under general or specific legal or equitable\nprinciples or its Code of Conduct or Securities Trading Policy or general or specific legal or equitable principles.\n10.03 Time to Consider Agreement. O’HANLEY ACKNOWLEDGES AND AGREES THAT HE HAS READ AND REVIEWED THIS\nAGREEMENT IN ITS ENTIRETY AND HAS BEEN GIVEN AN OPPORTUNITY TO CONSIDER THE AGREEMENT AND TO ASK\nMELLON QUESTIONS ABOUT IT. O’HANLEY ALSO AGREES THAT HE HAS BEEN GIVEN AN OPPORTUNITY TO CONSULT WITH\nAN ATTORNEY OF HIS CHOICE PRIOR TO EXECUTING THE AGREEMENT. BY EXECUTING THE AGREEMENT, O’HANLEY\nEXPRESSLY ACKNOWLEDGES THAT HE FULLY UNDERSTANDS THE TERMS OF THIS AGREEMENT AND KNOWINGLY AND\nFREELY AGREES TO ABIDE BY THEM.\n10.04 Governing Law. This Agreement shall be deemed to be made and entered into in the Commonwealth of Pennsylvania, and shall in all respects\nbe interpreted, enforced and governed under the laws of said Commonwealth.\n9of10\n10.05 Survival. O’Hanley acknowledges and agrees that the covenants and the restrictions contained in this Agreement are intended to protect\nMellon’s interest in its Confidential Information and its commercial relationships and goodwill with its customers, prospective customers, vendors,\nsuppliers, consultants and employees. O’Hanley acknowledges and agrees that the covenants and the restrictions contained in this Agreement shall\ncontinue in accordance with the express terms hereof regardless of any changes in title, position, duties, salary, compensation, benefits or other terms\nand conditions of employment, and shall survive the termination of O’Hanley’s employment.\n10.06 Headings. The underlined headings contained in this Agreement are for convenience of reference only and shall not affect the interpretation or\nconstruction of any provision hereof.\n4/20/2006\n/s/ Ronald P. O’Hanley\nDate\nRonald P. O’Hanley\n4/18/2006\nMellon Financial Corporation\nDate\nBy: /s/ Michael E. Bleier\nMichael E. Bleier,\nGeneral Counsel\n10of10	EX-99.2 3 dex992.htm CONFIDENTIALITY AND NON-SOLICITATION AGREEMENT\nExhibit 99.2\nCONFIDENTIALITY AND NON-SOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY AND NON-SOLICITATION AGREEMENT, (“Agreement”) made as of the 20th day of April, 2006, by and between\nMellon Financial Corporation (“MFC”), and on behalf of Mellon Trust of New England, National Association (“Mellon Trust”), their parent\ncompanies, subsidiaries, affiliates, related entities, successors and assigns (collectively “Mellon”) and Ronald P. O’Hanley (hereinafter “O’Hanley”)\nin consideration of and as a condition precedent to the following additional compensation, the adequacy, sufficiency and receipt of which are hereby\nacknowledged, agree as follows:\nARTICLE 1: CONSIDERATION\nPursuant to the April 19, 2006 letter from Robert P. Kelly to O’Hanley, effective April 19, 2006, and in accordance with Section 19 of the January 1,\n2003 Employment Agreement between MFC and O’Hanley, the Employment Agreement was terminated. In accordance with the April 19, 2006\nletter which is incorporated by reference, as if fully set forth herein, in exchange for O’Hanley’s execution of this Agreement within thirty (30) days\nof his receipt of the package offered in the April 19, 2006 letter, and as a condition precedent to the package, Mellon agrees to provide O’Hanley\nwith the following:\n(a) Base Salary. O’Hanley’s annual base salary will be increased to $675,000 effective March 1, 2006. Thereafter, subject to annual review;\n(b) Mellon Financial Corporation (MFC)_Profit Bonus Plan. O’Hanley’s bonus opportunity under the MFC Profit Bonus Plan will be in\naccordance with, and subject to, the terms of the Plan. O’Hanley’s annual bonus matrix is 300% of base salary at on-target performance, 400%\nof base salary at strong performance and 500% of base salary at outstanding performance. The matrix may be reviewed from time to time and\nadjusted accordingly;\n \n(c) Long-Term Incentive Award. (i) O’Hanley’s eligibility for an award under the Mellon Financial Corporation Long-Term Profit Incentive\nPlan (2004) (LTPIP) will be in accordance with, and subject to, the terms of the LTPIP as well as any individualized agreements that are\nrequired. O’Hanley’s LTPIP matrix is $1,687,500 for on-target performance, $2,250,000 for strong performance and $3,000,000 for\noutstanding performance. This matrix may be reviewed from time to time and adjusted accordingly; and (ii) O’Hanley will receive a special\none-time award under the LTPIP of $1,700,000 comprised of 40 percent stock options, 20 percent restricted stock, and 40 percent Total\nShareholder Return (“TSR”) performance shares. Award levels under the LTPIP and the Award are expressed in terms of McLagan valuation\nmethodology. Awards will be made utilizing Towers Perrin Long-Term Incentive Award calibration methodology;\nWithout Cause Termination or a Constructive Discharge, as those terms are defined in the April 19, 2006 letter and provided that he executes a\nseparation agreement and general release of claims in a form acceptable to Mellon’s legal counsel, Mellon agrees to provide O’Hanley with the\nfollowing cash and non-cash benefits. If Mellon\ndetermines that it is necessary or appropriate for any payments, including benefits which cannot be provided on a nontaxable basis, to be\ndelayed in order to avoid additional tax, interest and/or penalties under Section 409A of the Internal Revenue Code (“Code”), then the\npayments and benefits would not be made before the date which is the first day following the six (6) month anniversary of the date of the\ninvoluntary separation (or upon earlier death).\n(i) Transition Pay. O’Hanley will receive seventy-eight (78) weeks of separation pay in an amount equivalent to his base salary in effect,\nless all applicable taxes and deductions (“Separation Pay Amount”). Such Separation Pay Amount shall be reduced by the full amount\nof the cash displacement pay benefits (before taxes and deductions) actually paid to him pursuant to the Mellon Financial Corporation\nDisplacement Program, Mellon Supplemental Unemployment Benefit Plan and/or Change in Control Agreement in effect and applicable\nto him and for which he is eligible. Such reduced amount shall be hereinafter referred to as “Transition Pay”. The time between the date\nupon which O’Hanley begins to receive Transition Pay and the date upon which his Transition Pay ceases will be the “Transition\nPeriod.” Subject to Mellon’s determination of a Code Section 409A delay, the first twelve (12) periodic installments will be delayed\nuntil the first day following the six (6) month anniversary of O’Hanley’s separation from service. After which, Transition Pay will be\npaid in periodic installments (with the first payment after the Code Section 409A delay including the prior installment payments) on\nregularly scheduled pay dates until the final installment of Transition Pay;\n(ii) Continued Health and Life Insurance Coverage. To the extent permissible under the law and the general terms and provisions of such\nplans or programs and in accordance with the provisions, thereof, O’Hanley will receive continuation of his existing health and life\ninsurance coverages (except short-term or long-term disability coverage) under Mellon’s benefit programs as such may be amended from\ntime-to-time under the same terms as such coverages are provided to similarly situated separated Mellon employees. Such coverages will\ncontinue until the earlier of: (i) the date he fails to pay any applicable employee premium; (ii) the end of the Transition Period; (iii) the\ndate Mellon discontinues the particular coverage(s) and/or options for all similarly situated separated employees; and/or (iv) his\nemployment with another entity or self-employment;\n(iii) MFC Profit Bonus Plan. Although awards under incentive plans are completely discretionary, in the year active employment ceases,\nmanagement will recommend that O’Hanley receive a bonus in the amount equal to the average of his prior two-year bonus annualized\nawards, less applicable taxes and deductions to be paid all in cash. The award will be prorated based upon the number of months worked\nin the calendar year in which his active employment ceases. Subject to Mellon’s determination of a Code Section 409A delay, the\npayment date will be no later than March 15 of the subsequent year; and\n(iv) Special Bonus Award. O’Hanley will receive a special bonus award equal to one and one-half times the average of his prior two-year\nbonus\n20f 10\nannualized awards, less applicable taxes and deductions. The special bonus award will be paid all in cash 30 days following the last\nTransition Pay installment payment date.\nARTICLE 2: CONFIDENTIAL INFORMATION\n2.01 Definition of and Ownership of Confidential Information. O’Hanley recognizes, acknowledges and agrees that:\n(a) In the course of his employment by Mellon Trust and as a Vice Chairman of MFC he has had and it will be necessary for him to be given or\nhave access to and become informed of confidential or proprietary information which Mellon possesses or to which Mellon has rights, which\nrelates to Mellon and which is not generally known to the public or in the trade and is a competitive asset of Mellon, or information which\nconstitutes a “trade secret” of Mellon, as that term is defined by the Uniform Trade Secrets Act, as amended and approved by the National\nConference of Commissioners on Uniform State Laws in 1985, including without limitation, and regardless of whether such is original,\nduplicated, computerized, memorized, handwritten or in any other form: (i) Mellon’s planning data, records, observations and marketing\nstrategies or techniques, computer programs, system documentation, manuals, formulae, processes, operation methods, machines,\ncompositions; (ii) non-public terms of any new products, data bases, and investment strategies of Mellon, trading, arbitrage and/or hedging\ntechniques or strategies; (iii) non-public information relating to Mellon personnel matters; (iv) Mellon’s financial results and information about\nits business condition; (v) non-public terms of any investment, management or advisory agreement or other material contract of Mellon;\n(vi) Mellon’s proprietary software and related documents; (vii) Mellon’s customer and client and potential customer prospecting lists,\nidentifying information and contact persons at such customers and clients and prospects and Mellon Paid Channel (as hereinafter defined);\n(viii) non-public material information concerning Mellon’s clients or customers or their operations, condition (financial or otherwise); and\n(ix) patents, patents applications, copyrights, service marks and other intellectual property, Intellectual Property (as defined below)\n(collectively referred to herein as the “Confidential Information”);\n(b) Confidential Information shall not include information generally known to the public other than by virtue of a breach of this Agreement by\nO’Hanley, information rightfully known to O’Hanley without limitation on disclosure prior to its receipt from Mellon or a customer of Mellon,\ninformation rightfully received from a third party without limitation on disclosure and information generally made available by Mellon or a\nclient or customer of Mellon to third parties without restriction on disclosure; or information required to be disclosed by law, rule, regulation or\norder without an obligation of confidentiality on the part of the recipient, provided that prior to making any disclosure under this clause\nO’Hanley shall, if permissible under the law, rule or regulation, provide Mellon with notice and the opportunity to contest such disclosure; and\n(c) The Confidential Information has been developed or acquired by Mellon with significant expenditures of time, effort and money and is\nunique and cannot be lawfully duplicated or easily acquired. The Confidential Information is the sole and\n30of10\nexclusive property of Mellon (and in some cases the property of a customer of Mellon), regardless of its form or format and whether compiled\nor created by O’Hanley or Mellon. Mellon takes all reasonable measures to maintain its confidentiality and to guard its secrecy. The\nConfidential Information is not generally known outside Mellon and within Mellon this information is confidential and used only on a “need to\nknow” basis. The Confidential Information is unique and cannot be lawfully duplicated or easily acquired. O’Hanley agrees that the\nConfidential Information is deserving of trade secret status and protection, as that term is defined by the Uniform Trade Secrets Act, as\namended and approved by the National Conference of Commissioners on Uniform State Laws in 1985.\n2.02 Use of Confidential Information. O’Hanley agrees that the use, except for the sole purpose of conducting business on behalf of Mellon or with\nprior written consent of Mellon, misappropriation or disclosure of the Confidential Information would constitute a breach of trust and could cause\nirreparable injury to Mellon.\n2.03 Nondisclosure of Confidential Information. O’Hanley agrees that it is essential to the protection of Mellon’s goodwill and to the maintenance of\nMellon’s competitive position that the Confidential Information be kept secret and O’Hanley agrees not to disclose the Confidential Information to\nothers or use the Confidential Information to O’Hanley’s own advantage or the advantage of others either during employment or at any time\nthereafter.\n2.04 Return of Mellon Property. O’Hanley agrees that upon the termination of employment, for any reason or no reason, or at any other time Mellon\nmay request, that O’Hanley will immediately return to Mellon all Confidential Information and all of its property, including without limitation, all\ndocuments (including copies) and information, however maintained (including computer files, tapes, and recordings), concerning Mellon or acquired\nby O’Hanley in the course and scope of employment (excluding only those documents relating solely to O’Hanley’s own salary and benefits). In\naddition, O’Hanley agrees that he will delete, all information concerning Mellon’s business, customers and prospective customers, including\ncustomer contact information (e.g., names, addresses and telephone numbers), from his personal computer devices, including laptops, cellular\nphones, palm pilots and similar devices.\n2.05 Performance Record. O’Hanley understands, acknowledges and agrees that the investment performance record (including without limitation\nperformance ratings or rankings provided by any rating or ranking service) of any fund(s) or accounts of Mellon customers with which he is\nassociated while employed at Mellon is attributable to teams of professionals of Mellon and not solely the efforts of any single individual and that,\ntherefore, the performance records of the fund(s) or accounts managed by Mellon are and shall be the exclusive property of Mellon.\nARTICLE 3: NON-SOLICITATION OF ACCOUNTS AND EMPLOYEES\n3.01 Non-solicitation of Clients or Customers. O’Hanley covenants and agrees that during his employment with Mellon and for a period of twelve\n(12) months following the termination of his employment, for any reason or no reason, including but not limited to resignation of employment, that\n(“Restricted Period”), O’Hanley, whether directly or indirectly, in any capacity whatsoever (whether as proprietor, partner, investor, shareholder,\ndirector, officer,\n4 of 10\nemployer, consultant, independent contractor, co-venturer, financier, agent, representative or otherwise) shall not:\n(a) provide or assist with the provision of Relevant Financial Services to a Client or Customer of Mellon, except as an employee of Mellon,\nprovided that this Article 3 does not prohibit O’Hanley from being employed by or affiliated or associated with any person or entity after\ntermination of his employment with Mellon so long as he does not have any involvement on behalf of any person or entity with respect to\nsoliciting, managing, administering, supporting or retaining the Relevant Financial Services business provided or proposed to be provided to a\nCustomer or Client of Mellon; and/or\n(b) (i) solicit by mail, phone, personal meeting, or by any other means, either directly or indirectly, the business or patronage of any Customer\nor Client of Mellon for himself or any other person or entity other than Mellon for the purpose of providing Relevant Financial Services;\n(ii) divert, entice, or otherwise take away from Mellon the business or patronage of any Customer or Client of Mellon, or attempt to do so; or\n(iii) solicit or induce any Customer or Client of Mellon to terminate or reduce its relationship with Mellon.\n3.02 Non-solicitation of Employees. O’Hanley covenants and agrees that during his employment with Mellon and during the Restricted Period that\nhe shall not, directly or indirectly, hire or employ, recruit solicit or induce, or attempt to hire, recruit solicit or induce, (or in any way assist another\nperson or enterprise in recruiting, soliciting or inducing) any employee of Mellon to leave Mellon or any affiliate for any reason whatsoever.\n3.03 Reasonableness of Restricted Period. O’Hanley acknowledges and agrees that the Restricted Period is reasonable and valid in duration and\nscope and in all other respects. O’Hanley also represents that his experience and capabilities are such that the enforcement of the provisions of this\nAgreement will not prevent him from earning a livelihood, and he acknowledges that it would cause Mellon serious and irreparable injury and cost if\nhe were to use his ability and knowledge in competition with Mellon or to otherwise breach the obligations contained in this Agreement.\n3.04 Extension of Restricted Period. O’Hanley agrees that the nonsolicitation obligations contained in this Agreement shall be extended by the\nlength of time during which he shall have been in breach of any of the provisions.\n3.05 Definitions. O’Hanley understands that for the purposes of this Agreement:\n(a) “Relevant Financial Services” shall mean: (i) institutional asset and investment management and related advisory services; (ii) international\nasset and investment management and related advisory services; (iii) mutual fund management and related advisory services; and (iv) and any\nother services or products provided by Mellon from time to time which are within the scope of O’Hanley’s responsibilities or at any time\nduring the twelve (12) months preceding the termination of his employment were within the scope of his responsibilities; and\n(b) “Customer” or “Client” of Mellon means any person or entity who (i) is receiving Relevant Financial Services from Mellon, or (ii) on the\ndate of termination of his employment with Mellon or its parent, subsidiary, affiliate related entity or\n50f 10\nsuccessor received such services for compensation at any time during the one (1) year period immediately preceding the date of termination of\nhis employment, or (iii) O’Hanley solicited, directly or indirectly, in whole or in part, on behalf of Mellon to provide financial services within\none (1) year preceding the termination of his employment.\nARTICLE 4: DUTY OF LOYALTY\n4.01 Duty of Loyalty to Mellon. O’Hanley agrees that at all times during his employment by Mellon and in his position as Vice Chairman of MFC,\nhe owes Mellon a duty of loyalty and a duty to act in good faith. O’Hanley agrees that during his employment he will not individually, or in\ncombination with any other employer, employee or competitor of Mellon, violate or breach the terms of this agreement, Code of Conduct or Mellon\nSecurities Trading Policy.\n4.02 Cooperation. O’Hanley agrees that upon the termination of his employment, for any reason or no reason, including but not limited to\nresignation of employment, that he will cooperate with Mellon, upon reasonable notice and at reasonable times, in the prosecution and defense of\ncomplaints, investigations, litigation, arbitration and mediation of any complaints, claims or actions or regulatory review now in existence or that\nmay be threatened or brought in the future relating to events or occurrences that transpired while employed by Mellon or as Vice Chairman of MFC.\nO’Hanley also agrees that upon Mellon’s request, he will certify that he is in compliance with this Agreement.\n4.03 Prior Employer Restrictions. O’Hanley warrants that he is not subject or party to any agreement, understanding or undertaking that would\nprevent or restrict him from performing his employment duties or working with or on behalf of any customer or client. In addition, O’Hanley\nwarrants that his employment with Mellon does not violate any agreement, understanding or undertaking. Still further, O’Hanley agrees that he will\nnot in the course of performing duties for Mellon violate any confidentiality obligations that he may owe to others.\n4.04 Disclosure of Agreement. O’Hanley acknowledges and agrees to disclose the existence and terms of this Agreement so long as and to the extent\nthat such terms remain in effect to any prospective employer, partner or co-venturer prior to entering into an employment, partnership, or other\nbusiness relationship with such person or entity.\nARTICLE 5: SPECIAL, UNIQUE AND EXTRAORDINARY SERVICES\nO’Hanley acknowledges and agrees that in performing the job duties of his position that he provides Mellon with a special, unique and extraordinary\nservice.\n6 of 10\nARTICLE 6: WORKS FOR HIRE; PROPRIETARY DEVELOPMENT\n6.01 Property of Mellon. O’Hanley understands and agrees that any and all rights or interests that O’Hanley holds or obtains in any inventions,\nproducts, discoveries, processes, methods, computer software programs, models, techniques, formulae, designs, trade secrets, client, supplier, and\nvendor lists, sales and marketing plans, inventions, discoveries, improvements, copyrights, works of authorship, patent rights, trademarks or service\nmarks, and developments of any kind whatsoever, which are authored, conceived, reduced to practice, made, developed or created (alone or in\nconjunction with others, during regular hours of work otherwise) or otherwise obtained by O’Hanley during employment with Mellon or in the\nperformance of his duties as a Vice Chair of MFC which may directly or directly be useful in or relate to or arise out of such employment with\nMellon are expressly regarded as the exclusive property of Mellon or “works for hire” (the “Intellectual Property” ). The term Intellectual Property\ndoes not include inventions, products, discoveries, processes, methods, computer software programs, models, techniques, formulae, designs, trade\nsecrets, client, supplier, and vendor lists, sales and marketing plans, inventions, discoveries, improvements, copyrights, works of authorship, patent\nrights, trademarks or service marks which were in the possession of O’Hanley prior to his employment by Mellon and which were not obtained from\nor through Mellon.\n6.02 Disclosure; Assignment. O’Hanley agrees to promptly disclose to Mellon any and all such Inventions and deliver to Mellon, upon its\nrequest, a written description of such Intellectual Property and any available documentary or other materials evidencing such Intellectual Property.\nO’Hanley hereby assigns to Mellon the sole and exclusive right to such Intellectual Property and waives any license or other special right which\nO’Hanley may have or accrue therein, and that, upon request of Mellon, O’Hanley will execute and deliver any and all documents or instruments and\ntake any other action which Mellon shall deem necessary to assign to and vest completely in it, to perfect trademark, trade secret, copyright and\npatent protection with respect to, or to otherwise protect Mellon’s trade secrets and proprietary interest in, such Intellectual Property. O’Hanley will\nalso upon Mellon’s request, execute any documents necessary or advisable in the opinion of Mellon’s counsel to direct the issuance of patents,\ntrademarks or copyrights to Mellon or its designated affiliate with respect to such Intellectual Property as are to be Mellon’s exclusive property or to\nvest in Mellon title to such Intellectual Property, the expense of securing any patent, trademark or copyright, however, to be borne by Mellon.\nO’Hanley will hold for sole benefit of Mellon any Intellectual Property which is to be its exclusive property for which no patent, trademark or\ncopyright is issued.\n6.03 Survival. These obligations bind O’Hanley’s heirs and legal representatives and shall continue beyond the termination of O’Hanley’s\nemployment, regardless of reason, with respect to such Intellectual Property conceived of, reduced to practice, or developed by O’Hanley during the\nterm of employment with Mellon.\n6.04 Fees. Mellon agrees to pay any and all copyright, trademark and patent fees and expenses or other costs incurred by O’Hanley for any\nassistance rendered to Mellon pursuant to this Article 6 and to promptly reimburse O’Hanley for all expenses incurred by O’Hanley in perfecting its\nproperty rights in the Inventions. O’Hanley’s obligations to assign Inventions shall not apply to any invention about which O’Hanley can prove that:\n(i) the invention was developed entirely on O’Hanley’s own time and effort; (ii) no equipment, supplies, facilities, resources, trade secrets or\nconfidential information of Mellon was used in\n7 of 10\nthe development of the invention; (iii) the invention does not relate to the business of Mellon or to Mellon’s actual or anticipated research and\ndevelopment; and (iv) the invention does not result from any work otherwise performed by O’Hanley for Mellon.\nARTICLE 7: REMEDIES\n7.01 Injunctive Relief. O’Hanley agrees that any breach or threatened breach of any of the covenants contained in the Agreement would cause\nimmediate, material and irreparable harm to Mellon and that money damages would not provide an adequate remedy for Mellon to protect and\npreserve the status quo. Therefore, O’HANLEY CONSENTS TO THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER or A\nPRELIMINARY or PERMANENT INJUNCTION ordering that:\n(a) O’Hanley immediately return to Mellon all property and Confidential Information, whether original, duplicated, computerized,\nhandwritten, or in any other form whatsoever, and that O’Hanley be enjoined and restrained from using or disclosing any information\ncontained in such records; and\n(b) For a period of twelve (12) months, O’Hanley be enjoined and restrained from soliciting any client or customer whom O’Hanley served\nor whose name became known to O’Hanley while employed by Mellon or in the performance of his duties with Mellon, in any office\nand in any capacity; and\n(c) For a period of twelve (12) months, O’Hanley be enjoined and restrained from hiring, soliciting, or inducing any employee of Mellon to\nleave Mellon.\n7.02 O’Hanley agrees that Mellon shall have all of the rights and remedies available under law, or in equity, including, but not limited to, injunctive\nrelief, to a party enforcing any such covenant each of such rights and remedies to be independent of the other and severally enforceable including,\nbut not limited to, the right to have such covenants specifically enforced, and the right to require any violating party to account for and pay over to\nMellon all benefits derived or received by such violating party, or any of its subsidiaries or affiliates, as a result of any such breach of covenant.\n7.03 Jurisdiction. For purposes of Article 7, O’Hanley agrees to submit to, and confer exclusive jurisdiction on, the United States District Court or\nthe State Court, which has original jurisdiction for the judicial district, Pittsburgh Pennsylvania or county in which O’Hanley last worked in the\nUnited States for Mellon.\nARTICLE 8: EMPLOYMENT AT WILL\nNOTHING HEREIN IS A PROMISE OF EMPLOYMENT FOR A FIXED TERM. O'HANLEY AGREES THAT HE REMAINS AT ALL TIMES\nAN EMPLOYEE AT WILL. MELLON MAY TERMINATE O’HANLEY’S EMPLOYMENT FOR ANY REASON OR FOR NO REASON, JUST\nAS O’HANLEY MAY RESIGN AT ANY TIME.\n8 of 10\nARTICLE 9: ASSIGNMENT\nO’Hanley expressly acknowledges and agrees that Mellon may assign this Agreement, and its rights and obligations hereunder, to any other\nindividual, entity or organization that is a direct or indirect subsidiary of Mellon or which acquires (whether by purchase, merger, consolidation or\notherwise) all or substantially all of the business of Mellon, in either case without O’Hanley’s consent and without the necessity that this Agreement\nbe re-signed at the time of such transfer, and the term “Mellon” shall be deemed to include such entity or organization to which this Agreement is\nassigned. Any such transfer shall not in and of itself constitute a termination of O’Hanley’s employment by Mellon.\nARTICLE 10: MISCELLANEOUS\n10.01 Reasonableness; Severability. O’Hanley agrees that the covenants set forth herein are necessary and reasonable to protect Mellon’s\nConfidential Information, goodwill and business interests and therefore, valid in duration, geography and scope and in all other respects. If any court\nor tribunal determines that any of such covenants, or any part thereof, are invalid or unenforceable, the remaining covenants shall not thereby be\naffected and they shall be given full effect, without regard to the invalid portions. If any court or tribunal determined that all, or any part of the\ncovenants contained herein are unenforceable, because of the duration or scope of such provision, or for any other reason, such court or tribunal is\ndirected to reduce the duration or scope of such provision, as the case may be, so that, in its reduced form, such provision shall then be enforceable.\nIf any provision or provisions hereof shall be deemed invalid or unenforceable either in whole or in part, this Agreement shall be deemed amended\nto delete or modify, as necessary, the offending provision or provisions and to alter the bounds thereof in order to render it valid and enforceable.\n10.02 Additional Obligations. O’Hanley agrees that the obligations in this Agreement are in addition to and not in limitation or preemption of, all\nother obligations or prior agreements prior to the effective date of this Agreement, he has with Mellon under general or specific legal or equitable\nprinciples or its Code of Conduct or Securities Trading Policy or general or specific legal or equitable principles.\n10.03 Time to Consider Agreement. O’HANLEY ACKNOWLEDGES AND AGREES THAT HE HAS READ AND REVIEWED THIS\nAGREEMENT IN ITS ENTIRETY AND HAS BEEN GIVEN AN OPPORTUNITY TO CONSIDER THE AGREEMENT AND TO ASK\nMELLON QUESTIONS ABOUT IT. O'HANLEY ALSO AGREES THAT HE HAS BEEN GIVEN AN OPPORTUNITY TO CONSULT WITH\nAN ATTORNEY OF HIS CHOICE PRIOR TO EXECUTING THE AGREEMENT. BY EXECUTING THE AGREEMENT, O’HANLEY\nEXPRESSLY ACKNOWLEDGES THAT HE FULLY UNDERSTANDS THE TERMS OF THIS AGREEMENT AND KNOWINGLY AND\nFREELY AGREES TO ABIDE BY THEM.\n \n10.04 Governing Law. This Agreement shall be deemed to be made and entered into in the Commonwealth of Pennsylvania, and shall in all respects\nbe interpreted, enforced and governed under the laws of said Commonwealth.\n9 of 10\n10.05 Survival. O’Hanley acknowledges and agrees that the covenants and the restrictions contained in this Agreement are intended to protect\nMellon’s interest in its Confidential Information and its commercial relationships and goodwill with its customers, prospective customers, vendors,\nsuppliers, consultants and employees. O’Hanley acknowledges and agrees that the covenants and the restrictions contained in this Agreement shall\ncontinue in accordance with the express terms hereof regardless of any changes in title, position, duties, salary, compensation, benefits or other terms\nand conditions of employment, and shall survive the termination of O’Hanley’s employment.\n10.06 Headings. The underlined headings contained in this Agreement are for convenience of reference only and shall not affect the interpretation or\nconstruction of any provision hereof.\n4/20/2006 /s/ Ronald P. O’Hanley\nDate Ronald P. O’Hanley\n4/18/2006 Mellon Financial Corporation\nDate\nBy: /s/ Michael E. Bleier\nMichael E. Bleier,\nGeneral Counsel\n10 of 10	EX-99.2 3 dex992.htm CONFIDENTIALITY AND NON-SOLICITATION AGREEMENT\nExhibit 99.2\nCONFIDENTIALITY AND NON-SOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY AND NON-SOLICITATION AGREEMENT, ("Agreement") made as of the 20th day of April, 2006, by and between\nMellon Financial Corporation ("MFC"), and on behalf of Mellon Trust of New England, National Association ("Mellon Trust"), their parent\ncompanies, subsidiaries, affiliates, related entities, successors and assigns (collectively "Mellon") and Ronald P. O'Hanley (hereinafter "O'Hanley")\nin consideration of and as a condition precedent to the following additional compensation, the adequacy, sufficiency and receipt of which are hereby\nacknowledged, agree as follows:\nARTICLE 1: CONSIDERATION\nPursuant to the April 19, 2006 letter from Robert P. Kelly to O'Hanley, effective April 19, 2006, and in accordance with Section 19 of the January 1,\n2003 Employment Agreement between MFC and O'Hanley, the Employment Agreement was terminated. In accordance with the April 19, 2006\nletter which is incorporated by reference, as if fully set forth herein, in exchange for O'Hanley's execution of this Agreement within thirty (30)\ndays\nof his receipt of the package offered in the April 19, 2006 letter, and as a condition precedent to the package, Mellon agrees to provide O'Hanley\nwith the following:\n(a) Base Salary. O'Hanley's annual base salary will be increased to $675,000 effective March 1, 2006. Thereafter, subject to annual review;\n(b) Mellon Financial Corporation (MFC) Profit Bonus Plan. O'Hanley's bonus opportunity under the MFC Profit Bonus Plan will be in\naccordance with, and subject to, the terms of the Plan. O'Hanley's annual bonus matrix is 300% of base salary at on-target performance, 400%\nof base salary at strong performance and 500% of base salary at outstanding performance. The matrix may be reviewed from time to time and\nadjusted accordingly;\n(c) Long-Term Incentive Award. (i) O'Hanley's eligibility for an award under the Mellon Financial Corporation Long-Term Profit Incentive\nPlan (2004) (LTPIP) will be in accordance with, and subject to, the terms of the LTPIP as well as any individualized agreements that are\nrequired. O'Hanley's LTPIP matrix is $1,687,500 for on-target performance, $2,250,000 for strong performance and $3,000,000 for\noutstanding performance. This matrix may be reviewed from time to time and adjusted accordingly; and (ii) O'Hanley will receive a special\none-time award under the LTPIP of $1,700,000 comprised of 40 percent stock options, 20 percent restricted stock, and 40 percent Total\nShareholder Return ("TSR") performance shares. Award levels under the LTPIP and the Award are expressed in terms of McLagan valuation\nmethodology. Awards will be made utilizing Towers Perrin Long-Term Incentive Award calibration methodology;\n(d) Involuntary Separation of Employment. In the event that O'Hanley's employment with Mellon involuntarily terminates due to either a\nWithout Cause Termination or a Constructive Discharge, as those terms are defined in the April 19, 2006 letter and provided that he executes\na\nseparation agreement and general release of claims in a form acceptable to Mellon's legal counsel, Mellon agrees to provide O'Hanley with the\nfollowing cash and non-cash benefits. If Mellon\ndetermines that it is necessary or appropriate for any payments, including benefits which cannot be provided on a nontaxable basis, to be\ndelayed in order to avoid additional tax, interest and/or penalties under Section 409A of the Internal Revenue Code ("Code"), then the\npayments and benefits would not be made before the date which is the first day following the six (6) month anniversary of the date of the\ninvoluntary separation (or upon earlier death).\n(i) Transition Pay. O'Hanley will receive seventy-eight (78) weeks of separation pay in an amount equivalent to his base salary in effect,\nless all applicable taxes and deductions ("Separation Pay Amount"). Such Separation Pay Amount shall be reduced by the full amount\nof the cash displacement pay benefits (before taxes and deductions) actually paid to him pursuant to the Mellon Financial Corporation\nDisplacement Program, Mellon Supplemental Unemployment Benefit Plan and/or Change in Control Agreement in effect and applicable\nto him and for which he is eligible. Such reduced amount shall be hereinafter referred to as "Transition Pay". The time between the date\nupon which O'Hanley begins to receive Transition Pay and the date upon which his Transition Pay ceases will be the "Transition\nPeriod." Subject to Mellon's determination of a Code Section 409A delay, the first twelve (12) periodic installments will be delayed\nuntil the first day following the six (6) month anniversary of O'Hanley's separation from service. After which, Transition Pay will be\npaid in periodic installments (with the first payment after the Code Section 409A delay including the prior installment payments) on\nregularly scheduled pay dates until the final installment of Transition Pay;\n(ii) Continued Health and Life Insurance Coverage. To the extent permissible under the law and the general terms and provisions of such\nplans or programs and in accordance with the provisions, thereof, O'Hanley will receive continuation of his existing health and life\ninsurance coverages (except short-term or long-term disability coverage) under Mellon's benefit programs as such may be amended from\ntime-to-time under the same terms as such coverages are provided to similarly situated separated Mellon employees. Such coverages will\ncontinue until the earlier of: (i) the date he fails to pay any applicable employee premium; (ii) the end of the Transition Period; (iii) the\ndate Mellon discontinues the particular coverage(s) and/or options for all similarly situated separated employees; and/or (iv) his\nemployment with another entity or self-employment;\n(iii)\nMFC Profit Bonus Plan. Although awards under incentive plans are completely discretionary, in the year active employment ceases,\nmanagement will recommend that O'Hanley receive a bonus in the amount equal to the average of his prior two-year bonus annualized\nawards, less applicable taxes and deductions to be paid all in cash. The award will be prorated based upon the number of months worked\nin the calendar year in which his active employment ceases. Subject to Mellon's determination of a Code Section 409A delay, the\npayment date will be no later than March 15 of the subsequent year; and\n(iv) Special Bonus Award. O'Hanley will receive a special bonus award equal to one and one-half times the average of his prior two-year\nbonus\n2 of 10\nannualized awards, less applicable taxes and deductions. The special bonus award will be paid all in cash 30 days following the last\nTransition Pay installment payment date.\nARTICLE 2: CONFIDENTIAL INFORMATION\n2.01 Definition of and Ownership of Confidential Information. 'Hanley recognizes, acknowledges and agrees that:\n(a) In the course of his employment by Mellon Trust and as a Vice Chairman of MFC he has had and it will be necessary for him to be given or\nhave access to and become informed of confidential or proprietary information which Mellon possesses or to which Mellon has rights, which\nrelates to Mellon and which is not generally known to the public or in the trade and is a competitive asset of Mellon, or information which\nconstitutes a "trade secret" of Mellon, as that term is defined by the Uniform Trade Secrets Act, as amended and approved by the National\nConference of Commissioners on Uniform State Laws in 1985, including without limitation, and regardless of whether such is original,\nduplicated, computerized, memorized, handwritten or in any other form: (i) Mellon's planning data, records, observations and marketing\nstrategies or techniques, computer programs, system documentation, manuals, formulae, processes, operation methods, machines,\ncompositions; (ii) non-public terms of any new products, data bases, and investment strategies of Mellon, trading, arbitrage and/or hedging\ntechniques or strategies; (iii) non-public information relating to Mellon personnel matters; (iv) Mellon's financial results and information about\nits business condition; (v) non-public terms of any investment, management or advisory agreement or other material contract of Mellon;\n(vi) Mellon's proprietary software and related documents; (vii) Mellon's customer and client and potential customer prospecting lists,\nidentifying information and contact persons at such customers and clients and prospects and Mellon Paid Channel (as hereinafter defined);\n(viii) non-public material information concerning Mellon's clients or customers or their operations, condition (financial or otherwise); and\n(ix) patents, patents applications, copyrights, service marks and other intellectual property, Intellectual Property (as defined below)\n(collectively referred to herein as the "Confidential Information");\n(b) Confidential Information shall not include information generally known to the public other than by virtue of a breach of this Agreement by\nO'Hanley, information rightfully known to O'Hanley without limitation on disclosure prior to its receipt from Mellon or a customer of Mellon,\ninformation rightfully received from a third party without limitation on disclosure and information generally made available by Mellon or a\nclient or customer of Mellon to third parties without restriction on disclosure; or information required to be disclosed by law, rule, regulation or\norder without an obligation of confidentiality on the part of the recipient, provided that prior to making any disclosure under this clause\nO'Hanley shall, if permissible under the law, rule or regulation, provide Mellon with notice and the opportunity to contest such disclosure; and\n(c) The Confidential Information has been developed or acquired by Mellon with significant expenditures of time, effort and money and is\nunique and cannot be lawfully duplicated or easily acquired. The Confidential Information is the sole and\n3 of 10\nexclusive property of Mellon (and in some cases the property of a customer of Mellon), regardless of its form or format and whether compiled\nor created by O'Hanley or Mellon. Mellon takes all reasonable measures to maintain its confidentiality and to guard its secrecy. The\nConfidential Information is not generally known outside Mellon and within Mellon this information is confidential and used only on a "need to\nknow" basis. The Confidential Information is unique and cannot be lawfully duplicated or easily acquired. O'Hanley agrees that the\nConfidential Information is deserving of trade secret status and protection, as that term is defined by the Uniform Trade Secrets Act, as\namended and approved by the National Conference of Commissioners on Uniform State Laws in 1985.\n2.02 Use of Confidential Information. O'Hanley agrees that the use, except for the sole purpose of conducting business on behalf of Mellon or with\nprior written consent of Mellon, misappropriation or disclosure of the Confidentia Information would constitute a breach of trust and could cause\nirreparable injury to Mellon.\n2.03 Nondisclosure of Confidential Information. O'Hanley agrees that it is essential to the protection of Mellon's goodwill and to the maintenance\nof\nMellon's competitive position that the Confidential Information be kept secret and O'Hanley agrees not to disclose the Confidential Information to\nothers or use the Confidential Information to O'Hanley's own advantage or the advantage of others either during employment or at any time\nthereafter.\n2.04 Return of Mellon Property. O'Hanley agrees that upon the termination of employment, for any reason or no reason, or at any other time Mellon\nmay request, that O'Hanley will immediately return to Mellon all Confidential Information and all of its property, including without limitation, all\ndocuments (including copies) and information, however maintained (including computer files, tapes, and recordings), concerning Mellon or acquired\nby O'Hanley in the course and scope of employment (excluding only those documents relating solely to O'Hanley's own salary and benefits).\nIn\naddition, O'Hanley agrees that he will delete, all information concerning Mellon's business, customers and prospective customers, including\ncustomer contact information (e.g., names, addresses and telephone numbers), from his personal computer devices, including laptops, cellular\nphones, palm pilots and similar devices.\n2.05 Performance Record. O'Hanley understands, acknowledges and agrees that the investment performance record (including without limitation\nperformance ratings or rankings provided by any rating or ranking service) of any fund(s) or accounts of Mellon customers with which he is\nassociated while employed at Mellon is attributable to teams of professionals of Mellon and not solely the efforts of any single individual and that,\ntherefore, the performance records of the fund(s) or accounts managed by Mellon are and shall be the exclusive property of Mellon.\nARTICLE 3: NON-SOLICITATION OF ACCOUNTS AND EMPLOYEES\n3.01 Non-solicitation of Clients or Customers. O'Hanley covenants and agrees that during his employment with Mellon and for a period of twelve\n(12)\nmonths following the termination of his employment, for any reason or no reason, including but not limited to resignation of employment, that\n("Restricted Period"), O'Hanley, whether directly or indirectly, in any capacity whatsoever (whether as proprietor, partner, investor, shareholder,\ndirector, officer,\n4 of 10\nemployer, consultant, independent contractor, co-venturer, financier, agent, representative or otherwise) shall not:\n(a) provide or assist with the provision of Relevant Financial Services to a Client or Customer of Mellon, except as an employee of Mellon,\nprovided that this Article 3 does not prohibit O'Hanley from being employed by or affiliated or associated with any person or entity after\ntermination of his employment with Mellon so long as he does not have any involvement on behalf of any person or entity with respect to\nsoliciting, managing, administering, supporting or retaining the Relevant Financial Services business provided or proposed to be provided to a\nCustomer or Client of Mellon; and/or\n(b) (i) solicit by mail, phone, personal meeting, or by any other means, either directly or indirectly, the business or patronage of any Customer\nor Client of Mellon for himself or any other person or entity other than Mellon for the purpose of providing Relevant Financial Services;\n(ii) divert, entice, or otherwise take away from Mellon the business or patronage of any Customer or Client of Mellon, or attempt to do SO; or\n(iii) solicit or induce any Customer or Client of Mellon to terminate or reduce its relationship with Mellon.\n3.02 he shall Non-solicitation not, directly or of indirectly, Employees. hire O'Hanley or employ, covenants recruit solicit and agrees or induce, that during or attempt his employment to hire, recruit with solicit Mellon or induce, and during (or in the any Restricted way assist Period another that\nperson or enterprise in recruiting, soliciting or inducing) any employee of Mellon to leave Mellon or any affiliate for any reason whatsoever.\n3.03 Reasonableness of Restricted Period. O'Hanley acknowledges and agrees that the Restricted Period is reasonable and valid in duration and\nscope\nand in all other respects. O'Hanley also represents that his experience and capabilities are such that the enforcement of the provisions of this\nAgreement will not prevent him from earning a livelihood, and he acknowledges that it would cause Mellon serious and irreparable injury and cost if\nhe\nwere to use his ability and knowledge in competition with Mellon or to otherwise breach the obligations contained in this Agreement.\n3.04 Extension of Restricted Period. 'Hanley agrees that the nonsolicitation obligations contained in this Agreement shall be extended by the\nlength of time during which he shall have been in breach of any of the provisions.\n3.05 Definitions. O'Hanley understands that for the purposes of this Agreement:\n(a) "Relevant Financial Services" shall mean: (i) institutional asset and investment management and related advisory services; (ii) international\nasset and investment management and related advisory services; (iii) mutual fund management and related advisory services; and (iv) and any\nother services or products provided by Mellon from time to time which are within the scope of O'Hanley's responsibilities or at any time\nduring the twelve (12) months preceding the termination of his employment were within the scope of his responsibilities; and\n(b)\n"Customer" or "Client" of Mellon means any person or entity who (i) is receiving Relevant Financial Services from Mellon, or (ii) on the\ndate of termination of his employment with Mellon or its parent, subsidiary, affiliate related entity or\n5 of 10\nsuccessor received such services for compensation at any time during the one (1) year period immediately preceding the date of termination\nof\nhis employment, or (iii) O'Hanley solicited, directly or indirectly, in whole or in part, on behalf of Mellon to provide financial services within\none (1) year preceding the termination of his employment.\nARTICLE 4: DUTY OF LOYALTY\n4.01 Duty. of Loyalty. to Mellon. O'Hanley agrees that at all times during his employment by Mellon and in his position as Vice Chairman of MFC,\nhe owes Mellon a duty of loyalty and a duty to act in good faith. O'Hanley agrees that during his employment he will not individually, or in\ncombination with any other employer, employee or competitor of Mellon, violate or breach the terms of this agreement, Code of Conduct or Mellon\nSecurities Trading Policy.\n4.02 Cooperation. O'Hanley agrees that upon the termination of his employment, for any reason or no reason, including but not limited to\nresignation of employment, that he will cooperate with Mellon, upon reasonable notice and at reasonable times, in the prosecution and defense of\ncomplaints, investigations, litigation, arbitration and mediation of any complaints, claims or actions or regulatory review now in existence or that\nmay be threatened or brought in the future relating to events or occurrences that transpired while employed by Mellon or as Vice Chairman of MFC.\nD'Hanley also agrees that upon Mellon's request, he will certify that he is in compliance with this Agreement.\n4.03 Prior Employer Restrictions. O'Hanley warrants that he is not subject or party to any agreement, understanding or undertaking that would\nprevent or restrict him from performing his employment duties or working with or on behalf of any customer or client. In addition, O'Hanley\nwarrants that his employment with Mellon does not violate any agreement, understanding or undertaking. Still further, O'Hanley agrees that he will\nnot in the course of performing duties for Mellon violate any confidentiality obligations that he may owe to others.\n4.04 Disclosure of Agreement. O'Hanley acknowledges and agrees to disclose the existence and terms of this Agreement so long as and to the extent\nthat such terms remain in effect to any prospective employer, partner or co-venturer prior to entering into an employment, partnership, or other\nbusiness relationship with such person or entity.\nARTICLE 5: SPECIAL, UNIQUE AND EXTRAORDINARY SERVICES\nO'Hanley acknowledges and agrees that in performing the job duties of his position that he provides Mellon with a special, unique and extraordinary\nservice.\n6 of 10\nARTICLE 6: WORKS FOR HIRE; PROPRIETARY DEVELOPMENT\n6.01 Property. of Mellon. O'Hanley understands and agrees that any and all rights or interests that O'Hanley holds or obtains in any inventions,\nproducts, discoveries, processes, methods, computer software programs, models, techniques, formulae, designs, trade secrets, client, supplier, and\nvendor lists, sales and marketing plans, inventions, discoveries, improvements, copyrights, works of authorship, patent rights, trademarks or service\nmarks, and developments of any kind whatsoever, which are authored, conceived, reduced to practice, made, developed or created (alone or in\nconjunction with others, during regular hours of work otherwise) or otherwise obtained by O'Hanley during employment with Mellon or in the\nperformance of his duties as a Vice Chair of MFC which may directly or directly be useful in or relate to or arise out of such employment with\nMellon are expressly regarded as the exclusive property of Mellon or "works for hire" (the "Intellectual Property" ). The term Intellectual Property\ndoes not include inventions, products, discoveries, processes, methods, computer software programs, models, techniques, formulae, designs, trade\nsecrets, client, supplier, and vendor lists, sales and marketing plans, inventions, discoveries, improvements, copyrights, works of authorship, patent\nrights, trademarks or service marks which were in the possession of O'Hanley prior to his employment by Mellon and which were not obtained from\nor through Mellon.\n6.02 Disclosure; Assignment. O'Hanley agrees to promptly disclose to Mellon any and all such Inventions and deliver to Mellon, upon its\nrequest, a written description of such Intellectual Property and any available documentary or other materials evidencing such Intellectual Property.\nO'Hanley hereby assigns to Mellon the sole and exclusive right to such Intellectual Property and waives any license or other special right which\nO'Hanley may have or accrue therein, and that, upon request of Mellon, O'Hanley will execute and deliver any and all documents or instruments and\ntake any other action which Mellon shall deem necessary to assign to and vest completely in it, to perfect trademark, trade secret, copyright and\npatent protection with respect to, or to otherwise protect Mellon's trade secrets and proprietary interest in, such Intellectual Property. O'Hanley will\nalso upon Mellon's request, execute any documents necessary or advisable in the opinion of Mellon's counsel to direct the issuance of patents,\ntrademarks or copyrights to Mellon or its designated affiliate with respect to such Intellectual Property as are to be Mellon's exclusive property or\nto\nvest in Mellon title to such Intellectual Property, the expense of securing any patent, trademark or copyright, however, to be borne by Mellon.\nO'Hanley will hold for sole benefit of Mellon any Intellectual Property which is to be its exclusive property for which no patent, trademark or\ncopyright is issued.\n6.03 Survival. These obligations bind O'Hanley's heirs and legal representatives and shall continue beyond the termination of O'Hanley's\nemployment, regardless of reason, with respect to such Intellectual Property conceived of, reduced to practice, or developed by O'Hanley during the\nterm of employment with Mellon.\n6.04 Fees. Mellon agrees to pay any and all copyright, trademark and patent fees and expenses or other costs incurred by O'Hanley for any\nassistance rendered to Mellon pursuant to this Article 6 and to promptly reimburse O'Hanley for all expenses incurred by O'Hanley in perfecting\nits\nproperty rights in the Inventions. O'Hanley's obligations to assign Inventions shall not apply to any invention about which O'Hanley can prove that:\n(i) the invention was developed entirely on O'Hanley's own time and effort; (ii) no equipment, supplies, facilities, resources, trade secrets or\nconfidential information of Mellon was used in\n7 of 10\nthe development of the invention; (iii) the invention does not relate to the business of Mellon or to Mellon's actual or anticipated research and\ndevelopment; and (iv) the invention does not result from any work otherwise performed by O'Hanley for Mellon.\nARTICLE 7: REMEDIES\n7.01 Injunctive Relief. O'Hanley agrees that any breach or threatened breach of any of the covenants contained in the Agreement would cause\nimmediate, material and irreparable harm to Mellon and that money damages would not provide an adequate remedy for Mellon to protect and\npreserve the status quo. Therefore, O'HANLEY CONSENTS TO THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER or A\nPRELIMINARY or PERMANENT INJUNCTION ordering that:\n(a) O'Hanley immediately return to Mellon all property and Confidential Information, whether original, duplicated, computerized,\nhandwritten, or in any other form whatsoever, and that O'Hanley be enjoined and restrained from using or disclosing any information\ncontained in such records; and\n(b) For a period of twelve (12) months, O'Hanley be enjoined and restrained from soliciting any client or customer whom O'Hanley served\nor whose name became known to O'Hanley while employed by Mellon or in the performance of his duties with Mellon, in any office\nand in any capacity; and\n(c)\nFor a period of twelve (12) months, O'Hanley be enjoined and restrained from hiring, soliciting, or inducing any employee of Mellon to\nleave Mellon.\n7.02 'Hanley agrees that Mellon shall have all of the rights and remedies available under law, or in equity, including, but not limited to, injunctive\nrelief, to a party enforcing any such covenant each of such rights and remedies to be independent of the other and severally enforceable including,\nbut not limited to, the right to have such covenants specifically enforced, and the right to require any violating party to account for and pay over\nto\nMellon all benefits derived or received by such violating party, or any of its subsidiaries or affiliates, as a result of any such breach of covenant.\n7.03 Jurisdiction. For purposes of Article 7, O'Hanley agrees to submit to, and confer exclusive jurisdiction on, the United States District Court or\nthe State Court, which has original jurisdiction for the judicial district, Pittsburgh Pennsylvania or county in which O'Hanley last worked in the\nUnited States for Mellon.\nARTICLE 8: EMPLOYMENT AT WILL\nNOTHING HEREIN IS A PROMISE OF EMPLOYMENT FOR A FIXED TERM. O'HANLEY AGREES THAT HE REMAINS AT ALL TIMES\nAN EMPLOYEE AT WILL. MELLON MAY TERMINATE O'HANLEY'S EMPLOYMENT FOR ANY REASON OR FOR NO REASON, JUST\nAS O'HANLEY MAY RESIGN AT ANY TIME.\n8 of 10\nARTICLE 9: ASSIGNMENT\nO'Hanley expressly acknowledges and agrees that Mellon may assign this Agreement, and its rights and obligations hereunder, to any other\nindividual, entity or organization that is a direct or indirect subsidiary of Mellon or which acquires (whether by purchase, merger, consolidation\nor\notherwise) all or substantially all of the business of Mellon, in either case without O'Hanley's consent and without the necessity that this Agreement\nbe re-signed at the time of such transfer, and the term "Mellon" shall be deemed to include such entity or organization to which this Agreement\nis\nassigned. Any such transfer shall not in and of itself constitute a termination of O'Hanley's employment by Mellon.\nARTICLE 10: MISCELLANEOUS\n10.01 Reasonableness; Severability.. O'Hanley agrees that the covenants set forth herein are necessary and reasonable to protect Mellon's\nConfidential Information, goodwill and business interests and therefore, valid in duration, geography and scope and in all other respects. If any court\nor tribunal determines that any of such covenants, or any part thereof, are invalid or unenforceable, the remaining covenants shall not thereby be\naffected and they shall be given full effect, without regard to the invalid portions. If any court or tribunal determined that all, or any part of the\ncovenants contained herein are unenforceable, because of the duration or scope of such provision, or for any other reason, such court or tribunal\nis\ndirected to reduce the duration or scope of such provision, as the case may be, so that, in its reduced form, such provision shall then be enforceable.\nIf any provision or provisions hereof shall be deemed invalid or unenforceable either in whole or in part, this Agreement shall be deemed amended\nto\ndelete or modify, as necessary, the offending provision or provisions and to alter the bounds thereof in order to render it valid and enforceable\n10.02 Additional Obligations. O'Hanley agrees that the obligations in this Agreement are in addition to and not in limitation or preemption of, all\nother obligations or prior agreements prior to the effective date of this Agreement, he has with Mellon under general or specific legal or equitable\nprinciples or its Code of Conduct or Securities Trading Policy or general or specific legal or equitable principles.\n10.03 Time to Consider Agreement. O'HANLEY ACKNOWLEDGES AND AGREES THAT HE HAS READ AND REVIEWED THIS\nAGREEMENT IN ITS ENTIRETY AND HAS BEEN GIVEN AN OPPORTUNITY TO CONSIDER THE AGREEMENT AND TO ASK\nMELLON QUESTIONS ABOUT IT. O'HANLEY ALSO AGREES THAT HE HAS BEEN GIVEN AN OPPORTUNITY TO CONSULT WITH\nAN ATTORNEY OF HIS CHOICE PRIOR TO EXECUTING THE AGREEMENT. BY EXECUTING THE AGREEMENT, O'HANLEY\nEXPRESSLY ACKNOWLEDGES THAT HE FULLY UNDERSTANDS THE TERMS OF THIS AGREEMENT AND KNOWINGLY AND\nFREELY AGREES TO ABIDE BY THEM.\n10.04 Governing Law. This Agreement shall be deemed to be made and entered into in the Commonwealth of Pennsylvania, and shall in all respects\nbe interpreted, enforced and governed under the laws of said Commonwealth.\n9 of 10\n10.05 Survival. 'Hanley acknowledges and agrees that the covenants and the restrictions contained in this Agreement are intended to protect\nMellon's interest in its Confidential Information and its commercial relationships and goodwill with its customers, prospective customers, vendors,\nsuppliers, consultants and employees. O'Hanley acknowledges and agrees that the covenants and the restrictions contained in this Agreement shall\ncontinue in accordance with the express terms hereof regardless of any changes in title, position, duties, salary, compensation, benefits or other terms\nand conditions of employment, and shall survive the termination of O'Hanley's employment.\n10.06 Headings. The underlined headings contained in this Agreement are for convenience of reference only and shall not affect the interpretation\nor\nconstruction of any provision hereof.\n4/20/2006\n/s/ Ronald P. O'Hanley\nDate\nRonald P. O'Hanley\n4/18/2006\nMellon Financial Corporation\nDate\nBy: /s/ Michael E. Bleier\nMichael E. Bleier,\nGeneral Counsel\n10 of 10	EX-99.2 3 dex992.htm CONFIDENTIALITY AND NON-SOLICITATION AGREEMENT\nExhibit 99.2\nCONFIDENTIALITY AND NON-SOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY AND NON-SOLICITATION AGREEMENT, (“Agreement”) made as of the 20th day of April, 2006, by and between\nMellon Financial Corporation (“MFC”), and on behalf of Mellon Trust of New England, National Association (“Mellon Trust”), their parent\ncompanies, subsidiaries, affiliates, related entities, successors and assigns (collectively “Mellon”) and Ronald P. O’Hanley (hereinafter “O’Hanley”)\nin consideration of and as a condition precedent to the following additional compensation, the adequacy, sufficiency and receipt of which are hereby\nacknowledged, agree as follows:\nARTICLE 1: CONSIDERATION\nPursuant to the April 19, 2006 letter from Robert P. Kelly to O’Hanley, effective April 19, 2006, and in accordance with Section 19 of the January 1,\n2003 Employment Agreement between MFC and O’Hanley, the Employment Agreement was terminated. In accordance with the April 19, 2006\nletter which is incorporated by reference, as if fully set forth herein, in exchange for O’Hanley’s execution of this Agreement within thirty (30) days\nof his receipt of the package offered in the April 19, 2006 letter, and as a condition precedent to the package, Mellon agrees to provide O’Hanley\nwith the following:\n(a) Base Salary. O’Hanley’s annual base salary will be increased to $675,000 effective March 1, 2006. Thereafter, subject to annual review;\n(b) Mellon Financial Corporation (MFC) Profit Bonus Plan. O’Hanley’s bonus opportunity under the MFC Profit Bonus Plan will be in\naccordance with, and subject to, the terms of the Plan. O’Hanley’s annual bonus matrix is 300% of base salary at on-target performance, 400%\nof base salary at strong performance and 500% of base salary at outstanding performance. The matrix may be reviewed from time to time and\nadjusted accordingly;\n(c) Long-Term Incentive Award. (i) O’Hanley’s eligibility for an award under the Mellon Financial Corporation Long-Term Profit Incentive\nPlan (2004) (LTPIP) will be in accordance with, and subject to, the terms of the LTPIP as well as any individualized agreements that are\nrequired. O’Hanley’s LTPIP matrix is $1,687,500 for on-target performance, $2,250,000 for strong performance and $3,000,000 for\noutstanding performance. This matrix may be reviewed from time to time and adjusted accordingly; and (ii) O’Hanley will receive a special\none-time award under the LTPIP of $1,700,000 comprised of 40 percent stock options, 20 percent restricted stock, and 40 percent Total\nShareholder Return (“TSR”) performance shares. Award levels under the LTPIP and the Award are expressed in terms of McLagan valuation\nmethodology. Awards will be made utilizing Towers Perrin Long-Term Incentive Award calibration methodology;\n(d) Involuntary Separation of Employment. In the event that O’Hanley’s employment with Mellon involuntarily terminates due to either a\nWithout Cause Termination or a Constructive Discharge, as those terms are defined in the April 19, 2006 letter and provided that he executes a\nseparation agreement and general release of claims in a form acceptable to Mellon’s legal counsel, Mellon agrees to provide O’Hanley with the\nfollowing cash and non-cash benefits. If Mellon\ndetermines that it is necessary or appropriate for any payments, including benefits which cannot be provided on a nontaxable basis, to be\ndelayed in order to avoid additional tax, interest and/or penalties under Section 409A of the Internal Revenue Code (“Code”), then the\npayments and benefits would not be made before the date which is the first day following the six (6) month anniversary of the date of the\ninvoluntary separation (or upon earlier death).\n(i) Transition Pay. O’Hanley will receive seventy-eight (78) weeks of separation pay in an amount equivalent to his base salary in effect,\nless all applicable taxes and deductions (“Separation Pay Amount”). Such Separation Pay Amount shall be reduced by the full amount\nof the cash displacement pay benefits (before taxes and deductions) actually paid to him pursuant to the Mellon Financial Corporation\nDisplacement Program, Mellon Supplemental Unemployment Benefit Plan and/or Change in Control Agreement in effect and applicable\nto him and for which he is eligible. Such reduced amount shall be hereinafter referred to as “Transition Pay”. The time between the date\nupon which O’Hanley begins to receive Transition Pay and the date upon which his Transition Pay ceases will be the “Transition\nPeriod.” Subject to Mellon’s determination of a Code Section 409A delay, the first twelve (12) periodic installments will be delayed\nuntil the first day following the six (6) month anniversary of O’Hanley’s separation from service. After which, Transition Pay will be\npaid in periodic installments (with the first payment after the Code Section 409A delay including the prior installment payments) on\nregularly scheduled pay dates until the final installment of Transition Pay;\n(ii) Continued Health and Life Insurance Coverage. To the extent permissible under the law and the general terms and provisions of such\nplans or programs and in accordance with the provisions, thereof, O’Hanley will receive continuation of his existing health and life\ninsurance coverages (except short-term or long-term disability coverage) under Mellon’s benefit programs as such may be amended from\ntime-to-time under the same terms as such coverages are provided to similarly situated separated Mellon employees. Such coverages will\ncontinue until the earlier of: (i) the date he fails to pay any applicable employee premium; (ii) the end of the Transition Period; (iii) the\ndate Mellon discontinues the particular coverage(s) and/or options for all similarly situated separated employees; and/or (iv) his\nemployment with another entity or self-employment;\n(iii) MFC Profit Bonus Plan. Although awards under incentive plans are completely discretionary, in the year active employment ceases,\nmanagement will recommend that O’Hanley receive a bonus in the amount equal to the average of his prior two-year bonus annualized\nawards, less applicable taxes and deductions to be paid all in cash. The award will be prorated based upon the number of months worked\nin the calendar year in which his active employment ceases. Subject to Mellon’s determination of a Code Section 409A delay, the\npayment date will be no later than March 15 of the subsequent year; and\n(iv) Special Bonus Award. O’Hanley will receive a special bonus award equal to one and one-half times the average of his prior two-year\nbonus\n2of10\nannualized awards, less applicable taxes and deductions. The special bonus award will be paid all in cash 30 days following the last\nTransition Pay installment payment date.\nARTICLE 2: CONFIDENTIAL INFORMATION\n2.01 Definition of and Ownership of Confidential Information. O’Hanley recognizes, acknowledges and agrees that:\n(a) In the course of his employment by Mellon Trust and as a Vice Chairman of MFC he has had and it will be necessary for him to be given or\nhave access to and become informed of confidential or proprietary information which Mellon possesses or to which Mellon has rights, which\nrelates to Mellon and which is not generally known to the public or in the trade and is a competitive asset of Mellon, or information which\nconstitutes a “trade secret” of Mellon, as that term is defined by the Uniform Trade Secrets Act, as amended and approved by the National\nConference of Commissioners on Uniform State Laws in 1985, including without limitation, and regardless of whether such is original,\nduplicated, computerized, memorized, handwritten or in any other form: (i) Mellon’s planning data, records, observations and marketing\nstrategies or techniques, computer programs, system documentation, manuals, formulae, processes, operation methods, machines,\ncompositions; (ii) non-public terms of any new products, data bases, and investment strategies of Mellon, trading, arbitrage and/or hedging\ntechniques or strategies; (iii) non-public information relating to Mellon personnel matters; (iv) Mellon’s financial results and information about\nits business condition; (v) non-public terms of any investment, management or advisory agreement or other material contract of Mellon;\n(vi) Mellon’s proprietary software and related documents; (vii) Mellon’s customer and client and potential customer prospecting lists,\nidentifying information and contact persons at such customers and clients and prospects and Mellon Paid Channel (as hereinafter defined);\n(viii) non-public material information concerning Mellon’s clients or customers or their operations, condition (financial or otherwise); and\n(ix) patents, patents applications, copyrights, service marks and other intellectual property, Intellectual Property (as defined below)\n(collectively referred to herein as the “Confidential Information”);\n(b) Confidential Information shall not include information generally known to the public other than by virtue of a breach of this Agreement by\nO’Hanley, information rightfully known to O’Hanley without limitation on disclosure prior to its receipt from Mellon or a customer of Mellon,\ninformation rightfully received from a third party without limitation on disclosure and information generally made available by Mellon or a\nclient or customer of Mellon to third parties without restriction on disclosure; or information required to be disclosed by law, rule, regulation or\norder without an obligation of confidentiality on the part of the recipient, provided that prior to making any disclosure under this clause\nO’Hanley shall, if permissible under the law, rule or regulation, provide Mellon with notice and the opportunity to contest such disclosure; and\n(c) The Confidential Information has been developed or acquired by Mellon with significant expenditures of time, effort and money and is\nunique and cannot be lawfully duplicated or easily acquired. The Confidential Information is the sole and\n3of10\nexclusive property of Mellon (and in some cases the property of a customer of Mellon), regardless of its form or format and whether compiled\nor created by O’Hanley or Mellon. Mellon takes all reasonable measures to maintain its confidentiality and to guard its secrecy. The\nConfidential Information is not generally known outside Mellon and within Mellon this information is confidential and used only on a “need to\nknow” basis. The Confidential Information is unique and cannot be lawfully duplicated or easily acquired. O’Hanley agrees that the\nConfidential Information is deserving of trade secret status and protection, as that term is defined by the Uniform Trade Secrets Act, as\namended and approved by the National Conference of Commissioners on Uniform State Laws in 1985.\n2.02 Use of Confidential Information. O’Hanley agrees that the use, except for the sole purpose of conducting business on behalf of Mellon or with\nprior written consent of Mellon, misappropriation or disclosure of the Confidential Information would constitute a breach of trust and could cause\nirreparable injury to Mellon.\n2.03 Nondisclosure of Confidential Information. O’Hanley agrees that it is essential to the protection of Mellon’s goodwill and to the maintenance of\nMellon’s competitive position that the Confidential Information be kept secret and O’Hanley agrees not to disclose the Confidential Information to\nothers or use the Confidential Information to O’Hanley’s own advantage or the advantage of others either during employment or at any time\nthereafter.\n2.04 Return of Mellon Property. O’Hanley agrees that upon the termination of employment, for any reason or no reason, or at any other time Mellon\nmay request, that O’Hanley will immediately return to Mellon all Confidential Information and all of its property, including without limitation, all\ndocuments (including copies) and information, however maintained (including computer files, tapes, and recordings), concerning Mellon or acquired\nby O’Hanley in the course and scope of employment (excluding only those documents relating solely to O’Hanley’s own salary and benefits). In\naddition, O’Hanley agrees that he will delete, all information concerning Mellon’s business, customers and prospective customers, including\ncustomer contact information (e.g., names, addresses and telephone numbers), from his personal computer devices, including laptops, cellular\nphones, palm pilots and similar devices.\n2.05 Performance Record. O’Hanley understands, acknowledges and agrees that the investment performance record (including without limitation\nperformance ratings or rankings provided by any rating or ranking service) of any fund(s) or accounts of Mellon customers with which he is\nassociated while employed at Mellon is attributable to teams of professionals of Mellon and not solely the efforts of any single individual and that,\ntherefore, the performance records of the fund(s) or accounts managed by Mellon are and shall be the exclusive property of Mellon.\nARTICLE 3: NON-SOLICITATION OF ACCOUNTS AND EMPLOYEES\n3.01 Non-solicitation of Clients or Customers. O’Hanley covenants and agrees that during his employment with Mellon and for a period of twelve\n(12) months following the termination of his employment, for any reason or no reason, including but not limited to resignation of employment, that\n(“Restricted Period”), O’Hanley, whether directly or indirectly, in any capacity whatsoever (whether as proprietor, partner, investor, shareholder,\ndirector, officer,\n4of10\nemployer, consultant, independent contractor, co-venturer, financier, agent, representative or otherwise) shall not:\n(a) provide or assist with the provision of Relevant Financial Services to a Client or Customer of Mellon, except as an employee of Mellon,\nprovided that this Article 3 does not prohibit O’Hanley from being employed by or affiliated or associated with any person or entity after\ntermination of his employment with Mellon so long as he does not have any involvement on behalf of any person or entity with respect to\nsoliciting, managing, administering, supporting or retaining the Relevant Financial Services business provided or proposed to be provided to a\nCustomer or Client of Mellon; and/or\n(b) (i) solicit by mail, phone, personal meeting, or by any other means, either directly or indirectly, the business or patronage of any Customer\nor Client of Mellon for himself or any other person or entity other than Mellon for the purpose of providing Relevant Financial Services;\n(ii) divert, entice, or otherwise take away from Mellon the business or patronage of any Customer or Client of Mellon, or attempt to do so; or\n(iii) solicit or induce any Customer or Client of Mellon to terminate or reduce its relationship with Mellon.\n3.02 Non-solicitation of Employees. O’Hanley covenants and agrees that during his employment with Mellon and during the Restricted Period that\nhe shall not, directly or indirectly, hire or employ, recruit solicit or induce, or attempt to hire, recruit solicit or induce, (or in any way assist another\nperson or enterprise in recruiting, soliciting or inducing) any employee of Mellon to leave Mellon or any affiliate for any reason whatsoever.\n3.03 Reasonableness of Restricted Period. O’Hanley acknowledges and agrees that the Restricted Period is reasonable and valid in duration and\nscope and in all other respects. O’Hanley also represents that his experience and capabilities are such that the enforcement of the provisions of this\nAgreement will not prevent him from earning a livelihood, and he acknowledges that it would cause Mellon serious and irreparable injury and cost if\nhe were to use his ability and knowledge in competition with Mellon or to otherwise breach the obligations contained in this Agreement.\n3.04 Extension of Restricted Period. O’Hanley agrees that the nonsolicitation obligations contained in this Agreement shall be extended by the\nlength of time during which he shall have been in breach of any of the provisions.\n3.05 Definitions. O’Hanley understands that for the purposes of this Agreement:\n(a) “Relevant Financial Services” shall mean: (i) institutional asset and investment management and related advisory services; (ii) international\nasset and investment management and related advisory services; (iii) mutual fund management and related advisory services; and (iv) and any\nother services or products provided by Mellon from time to time which are within the scope of O’Hanley’s responsibilities or at any time\nduring the twelve (12) months preceding the termination of his employment were within the scope of his responsibilities; and\n(b) “Customer” or “Client” of Mellon means any person or entity who (i) is receiving Relevant Financial Services from Mellon, or (ii) on the\ndate of termination of his employment with Mellon or its parent, subsidiary, affiliate related entity or\n5of10\nsuccessor received such services for compensation at any time during the one (1) year period immediately preceding the date of termination of\nhis employment, or (iii) O’Hanley solicited, directly or indirectly, in whole or in part, on behalf of Mellon to provide financial services within\none (1) year preceding the termination of his employment.\nARTICLE 4: DUTY OF LOYALTY\n4.01 Duty of Loyalty to Mellon. O’Hanley agrees that at all times during his employment by Mellon and in his position as Vice Chairman of MFC,\nhe owes Mellon a duty of loyalty and a duty to act in good faith. O’Hanley agrees that during his employment he will not individually, or in\ncombination with any other employer, employee or competitor of Mellon, violate or breach the terms of this agreement, Code of Conduct or Mellon\nSecurities Trading Policy.\n4.02 Cooperation. O’Hanley agrees that upon the termination of his employment, for any reason or no reason, including but not limited to\nresignation of employment, that he will cooperate with Mellon, upon reasonable notice and at reasonable times, in the prosecution and defense of\ncomplaints, investigations, litigation, arbitration and mediation of any complaints, claims or actions or regulatory review now in existence or that\nmay be threatened or brought in the future relating to events or occurrences that transpired while employed by Mellon or as Vice Chairman of MFC.\nO’Hanley also agrees that upon Mellon’s request, he will certify that he is in compliance with this Agreement.\n4.03 Prior Employer Restrictions. O’Hanley warrants that he is not subject or party to any agreement, understanding or undertaking that would\nprevent or restrict him from performing his employment duties or working with or on behalf of any customer or client. In addition, O’Hanley\nwarrants that his employment with Mellon does not violate any agreement, understanding or undertaking. Still further, O’Hanley agrees that he will\nnot in the course of performing duties for Mellon violate any confidentiality obligations that he may owe to others.\n4.04 Disclosure of Agreement. O’Hanley acknowledges and agrees to disclose the existence and terms of this Agreement so long as and to the extent\nthat such terms remain in effect to any prospective employer, partner or co-venturer prior to entering into an employment, partnership, or other\nbusiness relationship with such person or entity.\nARTICLE 5: SPECIAL, UNIQUE AND EXTRAORDINARY SERVICES\nO’Hanley acknowledges and agrees that in performing the job duties of his position that he provides Mellon with a special, unique and extraordinary\nservice.\n6of10\nARTICLE 6: WORKS FOR HIRE; PROPRIETARY DEVELOPMENT\n6.01 Property of Mellon. O’Hanley understands and agrees that any and all rights or interests that O’Hanley holds or obtains in any inventions,\nproducts, discoveries, processes, methods, computer software programs, models, techniques, formulae, designs, trade secrets, client, supplier, and\nvendor lists, sales and marketing plans, inventions, discoveries, improvements, copyrights, works of authorship, patent rights, trademarks or service\nmarks, and developments of any kind whatsoever, which are authored, conceived, reduced to practice, made, developed or created (alone or in\nconjunction with others, during regular hours of work otherwise) or otherwise obtained by O’Hanley during employment with Mellon or in the\nperformance of his duties as a Vice Chair of MFC which may directly or directly be useful in or relate to or arise out of such employment with\nMellon are expressly regarded as the exclusive property of Mellon or “works for hire” (the “Intellectual Property” ). The term Intellectual Property\ndoes not include inventions, products, discoveries, processes, methods, computer software programs, models, techniques, formulae, designs, trade\nsecrets, client, supplier, and vendor lists, sales and marketing plans, inventions, discoveries, improvements, copyrights, works of authorship, patent\nrights, trademarks or service marks which were in the possession of O’Hanley prior to his employment by Mellon and which were not obtained from\nor through Mellon.\n6.02 Disclosure; Assignment. O’Hanley agrees to promptly disclose to Mellon any and all such Inventions and deliver to Mellon, upon its\nrequest, a written description of such Intellectual Property and any available documentary or other materials evidencing such Intellectual Property.\nO’Hanley hereby assigns to Mellon the sole and exclusive right to such Intellectual Property and waives any license or other special right which\nO’Hanley may have or accrue therein, and that, upon request of Mellon, O’Hanley will execute and deliver any and all documents or instruments and\ntake any other action which Mellon shall deem necessary to assign to and vest completely in it, to perfect trademark, trade secret, copyright and\npatent protection with respect to, or to otherwise protect Mellon’s trade secrets and proprietary interest in, such Intellectual Property. O’Hanley will\nalso upon Mellon’s request, execute any documents necessary or advisable in the opinion of Mellon’s counsel to direct the issuance of patents,\ntrademarks or copyrights to Mellon or its designated affiliate with respect to such Intellectual Property as are to be Mellon’s exclusive property or to\nvest in Mellon title to such Intellectual Property, the expense of securing any patent, trademark or copyright, however, to be borne by Mellon.\nO’Hanley will hold for sole benefit of Mellon any Intellectual Property which is to be its exclusive property for which no patent, trademark or\ncopyright is issued.\n6.03 Survival. These obligations bind O’Hanley’s heirs and legal representatives and shall continue beyond the termination of O’Hanley’s\nemployment, regardless of reason, with respect to such Intellectual Property conceived of, reduced to practice, or developed by O’Hanley during the\nterm of employment with Mellon.\n6.04 Fees. Mellon agrees to pay any and all copyright, trademark and patent fees and expenses or other costs incurred by O’Hanley for any\nassistance rendered to Mellon pursuant to this Article 6 and to promptly reimburse O’Hanley for all expenses incurred by O’Hanley in perfecting its\nproperty rights in the Inventions. O’Hanley’s obligations to assign Inventions shall not apply to any invention about which O’Hanley can prove that:\n(i) the invention was developed entirely on O’Hanley’s own time and effort; (ii) no equipment, supplies, facilities, resources, trade secrets or\nconfidential information of Mellon was used in\n7of10\nthe development of the invention; (iii) the invention does not relate to the business of Mellon or to Mellon’s actual or anticipated research and\ndevelopment; and (iv) the invention does not result from any work otherwise performed by O’Hanley for Mellon.\nARTICLE 7: REMEDIES\n7.01 Injunctive Relief. O’Hanley agrees that any breach or threatened breach of any of the covenants contained in the Agreement would cause\nimmediate, material and irreparable harm to Mellon and that money damages would not provide an adequate remedy for Mellon to protect and\npreserve the status quo. Therefore, O’HANLEY CONSENTS TO THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER or A\nPRELIMINARY or PERMANENT INJUNCTION ordering that:\n(a) O’Hanley immediately return to Mellon all property and Confidential Information, whether original, duplicated, computerized,\nhandwritten, or in any other form whatsoever, and that O’Hanley be enjoined and restrained from using or disclosing any information\ncontained in such records; and\n(b) For a period of twelve (12) months, O’Hanley be enjoined and restrained from soliciting any client or customer whom O’Hanley served\nor whose name became known to O’Hanley while employed by Mellon or in the performance of his duties with Mellon, in any office\nand in any capacity; and\n(c) For a period of twelve (12) months, O’Hanley be enjoined and restrained from hiring, soliciting, or inducing any employee of Mellon to\nleave Mellon.\n7.02 O’Hanley agrees that Mellon shall have all of the rights and remedies available under law, or in equity, including, but not limited to, injunctive\nrelief, to a party enforcing any such covenant each of such rights and remedies to be independent of the other and severally enforceable including,\nbut not limited to, the right to have such covenants specifically enforced, and the right to require any violating party to account for and pay over to\nMellon all benefits derived or received by such violating party, or any of its subsidiaries or affiliates, as a result of any such breach of covenant.\n7.03 Jurisdiction. For purposes of Article 7, O’Hanley agrees to submit to, and confer exclusive jurisdiction on, the United States District Court or\nthe State Court, which has original jurisdiction for the judicial district, Pittsburgh Pennsylvania or county in which O’Hanley last worked in the\nUnited States for Mellon.\nARTICLE 8: EMPLOYMENT AT WILL\nNOTHING HEREIN IS A PROMISE OF EMPLOYMENT FOR A FIXED TERM. O’HANLEY AGREES THAT HE REMAINS AT ALL TIMES\nAN EMPLOYEE AT WILL. MELLON MAY TERMINATE O’HANLEY’S EMPLOYMENT FOR ANY REASON OR FOR NO REASON, JUST\nAS O’HANLEY MAY RESIGN AT ANY TIME.\n8of10\nARTICLE 9: ASSIGNMENT\nO’Hanley expressly acknowledges and agrees that Mellon may assign this Agreement, and its rights and obligations hereunder, to any other\nindividual, entity or organization that is a direct or indirect subsidiary of Mellon or which acquires (whether by purchase, merger, consolidation or\notherwise) all or substantially all of the business of Mellon, in either case without O’Hanley’s consent and without the necessity that this Agreement\nbe re-signed at the time of such transfer, and the term “Mellon” shall be deemed to include such entity or organization to which this Agreement is\nassigned. Any such transfer shall not in and of itself constitute a termination of O’Hanley’s employment by Mellon.\nARTICLE 10: MISCELLANEOUS\n10.01 Reasonableness; Severability. O’Hanley agrees that the covenants set forth herein are necessary and reasonable to protect Mellon’s\nConfidential Information, goodwill and business interests and therefore, valid in duration, geography and scope and in all other respects. If any court\nor tribunal determines that any of such covenants, or any part thereof, are invalid or unenforceable, the remaining covenants shall not thereby be\naffected and they shall be given full effect, without regard to the invalid portions. If any court or tribunal determined that all, or any part of the\ncovenants contained herein are unenforceable, because of the duration or scope of such provision, or for any other reason, such court or tribunal is\ndirected to reduce the duration or scope of such provision, as the case may be, so that, in its reduced form, such provision shall then be enforceable.\nIf any provision or provisions hereof shall be deemed invalid or unenforceable either in whole or in part, this Agreement shall be deemed amended\nto delete or modify, as necessary, the offending provision or provisions and to alter the bounds thereof in order to render it valid and enforceable.\n10.02 Additional Obligations. O’Hanley agrees that the obligations in this Agreement are in addition to and not in limitation or preemption of, all\nother obligations or prior agreements prior to the effective date of this Agreement, he has with Mellon under general or specific legal or equitable\nprinciples or its Code of Conduct or Securities Trading Policy or general or specific legal or equitable principles.\n10.03 Time to Consider Agreement. O’HANLEY ACKNOWLEDGES AND AGREES THAT HE HAS READ AND REVIEWED THIS\nAGREEMENT IN ITS ENTIRETY AND HAS BEEN GIVEN AN OPPORTUNITY TO CONSIDER THE AGREEMENT AND TO ASK\nMELLON QUESTIONS ABOUT IT. O’HANLEY ALSO AGREES THAT HE HAS BEEN GIVEN AN OPPORTUNITY TO CONSULT WITH\nAN ATTORNEY OF HIS CHOICE PRIOR TO EXECUTING THE AGREEMENT. BY EXECUTING THE AGREEMENT, O’HANLEY\nEXPRESSLY ACKNOWLEDGES THAT HE FULLY UNDERSTANDS THE TERMS OF THIS AGREEMENT AND KNOWINGLY AND\nFREELY AGREES TO ABIDE BY THEM.\n10.04 Governing Law. This Agreement shall be deemed to be made and entered into in the Commonwealth of Pennsylvania, and shall in all respects\nbe interpreted, enforced and governed under the laws of said Commonwealth.\n9of10\n10.05 Survival. O’Hanley acknowledges and agrees that the covenants and the restrictions contained in this Agreement are intended to protect\nMellon’s interest in its Confidential Information and its commercial relationships and goodwill with its customers, prospective customers, vendors,\nsuppliers, consultants and employees. O’Hanley acknowledges and agrees that the covenants and the restrictions contained in this Agreement shall\ncontinue in accordance with the express terms hereof regardless of any changes in title, position, duties, salary, compensation, benefits or other terms\nand conditions of employment, and shall survive the termination of O’Hanley’s employment.\n10.06 Headings. The underlined headings contained in this Agreement are for convenience of reference only and shall not affect the interpretation or\nconstruction of any provision hereof.\n4/20/2006\n/s/ Ronald P. O’Hanley\nDate\nRonald P. O’Hanley\n4/18/2006\nMellon Financial Corporation\nDate\nBy: /s/ Michael E. Bleier\nMichael E. Bleier,\nGeneral Counsel\n10of10
+58c9aad6cf2abcb975e249ebea5d9688.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nLOGO\nConfidentiality and Non-Disclosure Agreement\nEffective Date: 1/1/2008 (“Effective Date”)\nThis confidentiality and non-disclosure agreement, (“Agreement”) is entered into by and between Autodesk, Inc., located at 111 Mclnnis Parkway,\nSan Rafael, California 94903 (“Autodesk”) and Moldflow Corporation, located at 492 Old Connecticut Path, Suite 401, Framingham, MA 01701,\nUnited States (“Company”). Each party has disclosed or anticipates disclosing to the other party certain Confidential Information (as defined below)\nin connection with the following business purpose: to share and evaluate information regarding each party’s business and technology for the purpose\nof exploring a potential business relationship between the parties (collectively, the “Business Purpose”). In consideration of the mutual promises and\ncovenants contained in this agreement and the disclosure of confidential information in connection with the business purpose, both parties agree as\nfollows:\n1. Definition of Confidential Information. “Confidential Information” shall mean all information, whether disclosed before or after the\nEffective Date, that is disclosed in written, oral, electronic, visual or other form by either party (each, as a “Disclosing Party”) to the\nother party (each, as a “Receiving Party”) and either (i) marked or designated as “confidential” or “proprietary” at the time of disclosure\nor (ii) otherwise clearly indicated to be confidential at the time of disclosure. Confidential Information may include, without limitation,\ncomputer programs, software or hardware products, product development plans, code, documentation, algorithms, know-how, trade\nsecrets, formulas, processes, procedures, ideas, research, inventions (whether patentable or not), copyrights, schematics and other\ntechnical, business, financial and marketing information, forecasts, strategies, names and expertise of employees and consultants and\ncustomer or partner information.\n2. Confidentiality Obligation. Receiving Party agrees to protect the Confidential Information by using the same degree of care as\nReceiving Party uses to protect its own confidential or proprietary information (but not less than a reasonable degree of care): (i) to\nprevent the unauthorized use, dissemination or publication of the Confidential Information (ii) not to divulge Confidential Information to\nany third party, (iii) not to make any use of such Confidential Information except for the Business Purpose, and (iv) not to copy except as\nreasonably required in direct support of the Business Purpose. Any copies made will include appropriate marking identifying same as\nconstituting or containing Confidential Information of Disclosing Party; and (v) not to reverse engineer any such Confidential\nInformation. Receiving Party shall limit the use of and access to Disclosing Party’s Confidential Information to Receiving Party’s\nemployees and to the employees of Receiving Party’s respective parent, subsidiaries and affiliated entities or authorized representatives\nwho have: (i) a need to know and have been notified that such information is Confidential Information to be used solely for the Business\nPurpose; and (ii) entered into binding confidentiality obligations no less protective of Disclosing Party than those contained in this\nAgreement. Receiving Party may disclose Confidential Information pursuant to any statutory or regulatory authority or court order,\nprovided Disclosing Party is given prompt prior written notice of such requirement and the scope of such disclosure is limited to the\nextent possible.\n3. Term. This Agreement shall have a term of one (1) year from the Effective Date. Either party may terminate this Agreement at anytime\nwithout liability for such termination however, the obligations of Receiving Party regarding use and disclosure of the Confidential\nInformation shall survive any termination or expiration of this Agreement for a period of two (2) years after the Agreement expiration\ndate or termination date.\n4. Exclusions. Confidential Information shall not include Confidential Information that from and after the date of disclosure: (i) is or\nbecomes a matter of public knowledge through no fault of Receiving Party; or (ii) was rightfully in Receiving Party’s possession prior to\nreceipt from Disclosing Party free of any obligation of confidence; or (iii) was rightfully disclosed to the Receiving Party by another\nperson without restriction as to use or disclosure; or (iv) is independently developed by Receiving Party without use of or reference to\nDisclosing Party’s Confidential Information.\n5. Ownership. All Confidential Information and any Derivatives thereof, unless otherwise specified in writing remains the property of the\nDisclosing Party. Receiving Party acquires no rights or licenses in the intellectual property of Disclosing Party including but not limited\nto, patents, trademarks, copyrights or service marks under this Agreement or through any disclosure hereunder, except the limited right\nto use such Confidential Information in accordance with this Agreement. For purposes of this Agreement, “Derivatives” means (i) for\ncopyrightable or copyrighted material, any translation, abridgement, revision or other form in which an existing work may be recast,\ntransformed or adapted; (ii) for patentable or patented material, any improvement thereon; and (iii) for material which is protected by\ntrade secret, any new material derived from such existing trade secret material, including new material which may be protected under\ncopyright, patent and/or trade secret laws.\n6. Equitable Relief. Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential\nInformation, there may be no adequate remedy at law for any breach of this Agreement. Upon any such breach, Disclosing Party shall be\nentitled to seek appropriate equitable relief, including but not limited to injunction in addition to what ever remedies it may have at law.\nReceiving Party will notify Disclosing Party in writing immediately upon learning of the occurrence of any unauthorized disclosure of\nConfidential Information or other breach of this Agreement. Receiving Party will assist Disclosing Party in remedying any unauthorized\nuse or disclosure of Confidential Information.\n7. Return of Confidential Information. Receiving Party shall return all Confidential Information, any tangible media of expression to the\nextent that such tangible media incorporate any Confidential Information of Disclosing Party, and any all copies thereof upon the request\nof Disclosing Party. Any Confidential Information which cannot be returned must be destroyed and so certified by Receiving Party.\n8. Warranty. Disclosing Party represents and warrants to Receiving Party that it has sufficient right, title and interest in and to the\nConfidential Information to enter into this Agreement, to disclose the Confidential Information to Receiving Party, to modify and copy\nthe Confidential Information, and to authorize and allow Receiving Party to do so. Disclosing Party hereby agrees to indemnify, defend\nand hold harmless Receiving Party from any and all damages, costs, claims and expenses incurred in connection with any claim that\nDisclosing Party does not have the rights set forth in this Paragraph 8, or that the access, use, or reproduction of the Confidential\nInformation for the purpose of evaluating a possible business relationship infringes a patent or copyright or violates a third party’s trade\nsecret rights.\nPage1of2\nLOGO\nConfidentiality and Non-Disclosure Agreement\n9. Export. Receiving Party will not export, directly or indirectly, any technical data acquired from Disclosing Party pursuant to this\nAgreement or any product utilizing any such data to any country for which the U.S . government or any agency thereof at the time of\nexport requires an export license or other government approval without first obtaining such license or approval.\n10. Notices. All notices required or permitted to be given under this Agreement shall be given in writing and shall be effective from the date\nsent by registered or certified mail, by hand, confirmed facsimile or overnight courier to the addresses of the parties set forth herein.\nNOTICE IS NOT DEEMED TO HAVE BEEN GIVEN TO AUTODESK UNLESS NOTICE HAS BEEN DELIVERED AT THE\nFOLLOWING ADDRESS: AUTODESK, INC., Attn: General Counsel, 111 McInnis Parkway San Rafael, CA 94903.\n11. Independent Development. Receiving Party reserves the right to develop and market any technology, products or services or pursue\nbusiness opportunities that compete with or are similar to those disclosed by Disclosing Party under this Agreement without the use of\nthe Disclosing Party’s Confidential Information. Nothing contained in this Agreement shall prohibit or restrict Receiving Party from\nemploying ideas, concepts or techniques which may be retained in the unaided human memory by Receiving Party’s personnel in the\ncourse of their review of the Confidential Information. The foregoing sentence shall not, however, grant Receiving Party any rights under\nany patents or copyrights.\n12. No Reliance. Autodesk Confidential Information may concern planned or future development efforts for existing or new Autodesk\nproducts and services. Autodesk Confidential Information is not intended to be a promise or guarantee of future delivery of products,\nservices or features but merely reflect our current plans, which may change. Accordingly, Autodesk Confidential Information may not be\nrelied on for purchasing decisions or for any other purpose.\n13. General. This Agreement supersedes all prior discussions and writings with respect to the subject matter hereof, and constitutes the\nentire agreement. All additions or modification of this Agreement must be made in writing and signed by both parties. Neither party shall\ndisclose, except to those persons involved in evaluating the Business Purpose, nor as required by law, the existence or the content of this\nAgreement, or that the parties are discussing a potential business relationship. No failure or delay in enforcing any right will be deemed a\nwaiver. This Agreement may not be assigned by Receiving Party without the prior written consent of Disclosing Party, which consent\nshall not be unreasonably withheld. The parties understand that nothing herein requires either party to proceed with any proposed\ntransaction or relationship in connection with which Confidential Information may be disclosed. In the event that any of the provisions of\nthis Agreement shall be held by a court unenforceable, the remaining portions hereof shall remain in full force and effect. This\nAgreement shall be governed by the laws of the State of California, without regard to conflicts of law provisions. All fully executed\ncopies of this Agreement shall be deemed originals.\nAcknowledged and Agreed:\nAutodesk, Inc.\nMoldflow Corporation\nSignature: /s/ Scott Vollmar\nSignature: /s/ Lori Henderson\nDate:\n1-4 -08\nDate:\n1-2 -08\nPrint Name: Scott Vollmar\nPrint Name: Lori Henderson\nTitle:\nDirector, Business Development\nTitle:\nEVP\nAutodesk Employee: Return fully executed original to Legal Dept., Attn. Contracts Manager 111 McInnis Parkway San Rafael, CA 94903\nPage2of2	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nl#.LOGO Confidentiality and Non-Disclosure Agreement\nEffective Date: 1/1/2008 (“Effective Date”)\nThis confidentiality and non-disclosure agreement, (“Agreement”) is entered into by and between Autodesk, Inc., located at 111 Mclnnis Parkway,\nSan Rafael, California 94903 (“Autodesk”) and Moldflow Corporation, located at 492 Old Connecticut Path, Suite 401, Framingham, MA 01701,\nUnited States (“Company”). Each party has disclosed or anticipates disclosing to the other party certain Confidential Information (as defined below)\nin connection with the following business purpose: to share and evaluate information regarding each party’s business and technology for the purpose\nof exploring a potential business relationship between the parties (collectively, the “Business Purpose™). In consideration of the mutual promises and\ncovenants contained in this agreement and the disclosure of confidential information in connection with the business purpose, both parties agree as\nfollows:\n1.  Definition of Confidential Information. “Confidential Information” shall mean all information, whether disclosed before or after the\nEffective Date, that is disclosed in written, oral, electronic, visual or other form by either party (each, as a “Disclosing Party”) to the\nother party (each, as a “Receiving Party”) and either (i) marked or designated as “confidential” or “proprietary” at the time of disclosure\nor (ii) otherwise clearly indicated to be confidential at the time of disclosure. Confidential Information may include, without limitation,\ncomputer programs, software or hardware products, product development plans, code, documentation, algorithms, know-how, trade\nsecrets, formulas, processes, procedures, ideas, research, inventions (whether patentable or not), copyrights, schematics and other\ntechnical, business, financial and marketing information, forecasts, strategies, names and expertise of employees and consultants and\ncustomer or partner information.\n2. Confidentiality Obligation. Receiving Party agrees to protect the Confidential Information by using the same degree of care as\nReceiving Party uses to protect its own confidential or proprietary information (but not less than a reasonable degree of care): (i) to\nprevent the unauthorized use, dissemination or publication of the Confidential Information (ii) not to divulge Confidential Information to\nany third party, (iii) not to make any use of such Confidential Information except for the Business Purpose, and (iv) not to copy except as\nreasonably required in direct support of the Business Purpose. Any copies made will include appropriate marking identifying same as\nconstituting or containing Confidential Information of Disclosing Party; and (v) not to reverse engineer any such Confidential\nInformation. Receiving Party shall limit the use of and access to Disclosing Party’s Confidential Information to Receiving Party’s\nemployees and to the employees of Receiving Party’s respective parent, subsidiaries and affiliated entities or authorized representatives\nwho have: (i) a need to know and have been notified that such information is Confidential Information to be used solely for the Business\nPurpose; and (ii) entered into binding confidentiality obligations no less protective of Disclosing Party than those contained in this\nAgreement. Receiving Party may disclose Confidential Information pursuant to any statutory or regulatory authority or court order,\nprovided Disclosing Party is given prompt prior written notice of such requirement and the scope of such disclosure is limited to the\nextent possible.\n3. Term. This Agreement shall have a term of one (1) year from the Effective Date. Either party may terminate this Agreement at anytime\nwithout liability for such termination however, the obligations of Receiving Party regarding use and disclosure of the Confidential\nInformation shall survive any termination or expiration of this Agreement for a period of two (2) years after the Agreement expiration\ndate or termination date.\n4.  Exclusions. Confidential Information shall not include Confidential Information that from and after the date of disclosure: (i) is or\nbecomes a matter of public knowledge through no fault of Receiving Party; or (ii) was rightfully in Receiving Party’s possession prior to\nreceipt from Disclosing Party free of any obligation of confidence; or (iii) was rightfully disclosed to the Receiving Party by another\nperson without restriction as to use or disclosure; or (iv) is independently developed by Receiving Party without use of or reference to\nDisclosing Party’s Confidential Information.\n5. Ownership. All Confidential Information and any Derivatives thereof, unless otherwise specified in writing remains the property of the\nDisclosing Party. Receiving Party acquires no rights or licenses in the intellectual property of Disclosing Party including but not limited\nto, patents, trademarks, copyrights or service marks under this Agreement or through any disclosure hereunder, except the limited right\nto use such Confidential Information in accordance with this Agreement. For purposes of this Agreement, “Derivatives” means (i) for\ncopyrightable or copyrighted material, any translation, abridgement, revision or other form in which an existing work may be recast,\ntransformed or adapted; (ii) for patentable or patented material, any improvement thereon; and (iii) for material which is protected by\ntrade secret, any new material derived from such existing trade secret material, including new material which may be protected under\ncopyright, patent and/or trade secret laws.\n6.  Equitable Relief. Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential\nInformation, there may be no adequate remedy at law for any breach of this Agreement. Upon any such breach, Disclosing Party shall be\nentitled to seek appropriate equitable relief, including but not limited to injunction in addition to what ever remedies it may have at law.\nReceiving Party will notify Disclosing Party in writing immediately upon learning of the occurrence of any unauthorized disclosure of\nConfidential Information or other breach of this Agreement. Receiving Party will assist Disclosing Party in remedying any unauthorized\nuse or disclosure of Confidential Information.\n7.  Return of Confidential Information. Receiving Party shall return all Confidential Information, any tangible media of expression to the\nextent that such tangible media incorporate any Confidential Information of Disclosing Party, and any all copies thereof upon the request\nof Disclosing Party. Any Confidential Information which cannot be returned must be destroyed and so certified by Receiving Party.\n8.  Warranty. Disclosing Party represents and warrants to Receiving Party that it has sufficient right, title and interest in and to the\nConfidential Information to enter into this Agreement, to disclose the Confidential Information to Receiving Party, to modify and copy\nthe Confidential Information, and to authorize and allow Receiving Party to do so. Disclosing Party hereby agrees to indemnify, defend\nand hold harmless Receiving Party from any and all damages, costs, claims and expenses incurred in connection with any claim that\nDisclosing Party does not have the rights set forth in this Paragraph 8, or that the access, use, or reproduction of the Confidential\nInformation for the purpose of evaluating a possible business relationship infringes a patent or copyright or violates a third party’s trade\nsecret rights.\nPage 1 of 2\nl#.LOGO Confidentiality and Non-Disclosure Agreement\n9.  Export. Receiving Party will not export, directly or indirectly, any technical data acquired from Disclosing Party pursuant to this\nAgreement or any product utilizing any such data to any country for which the U.S. government or any agency thereof at the time of\nexport requires an export license or other government approval without first obtaining such license or approval.\n10. Notices. All notices required or permitted to be given under this Agreement shall be given in writing and shall be effective from the date\nsent by registered or certified mail, by hand, confirmed facsimile or overnight courier to the addresses of the parties set forth herein.\nNOTICE IS NOT DEEMED TO HAVE BEEN GIVEN TO AUTODESK UNLESS NOTICE HAS BEEN DELIVERED AT THE\nFOLLOWING ADDRESS: AUTODESK, INC., Attn: General Counsel, 111 McInnis Parkway San Rafael, CA 94903.\n11. Independent Development. Receiving Party reserves the right to develop and market any technology, products or services or pursue\nbusiness opportunities that compete with or are similar to those disclosed by Disclosing Party under this Agreement without the use of\nthe Disclosing Party’s Confidential Information. Nothing contained in this Agreement shall prohibit or restrict Receiving Party from\nemploying ideas, concepts or techniques which may be retained in the unaided human memory by Receiving Party’s personnel in the\ncourse of their review of the Confidential Information. The foregoing sentence shall not, however, grant Receiving Party any rights under\nany patents or copyrights.\n12. No Reliance. Autodesk Confidential Information may concern planned or future development efforts for existing or new Autodesk\nproducts and services. Autodesk Confidential Information is not intended to be a promise or guarantee of future delivery of products,\nservices or features but merely reflect our current plans, which may change. Accordingly, Autodesk Confidential Information may not be\nrelied on for purchasing decisions or for any other purpose.\n13. General. This Agreement supersedes all prior discussions and writings with respect to the subject matter hereof, and constitutes the\nentire agreement. All additions or modification of this Agreement must be made in writing and signed by both parties. Neither party shall\ndisclose, except to those persons involved in evaluating the Business Purpose, nor as required by law, the existence or the content of this\nAgreement, or that the parties are discussing a potential business relationship. No failure or delay in enforcing any right will be deemed a\nwaiver. This Agreement may not be assigned by Receiving Party without the prior written consent of Disclosing Party, which consent\nshall not be unreasonably withheld. The parties understand that nothing herein requires either party to proceed with any proposed\ntransaction or relationship in connection with which Confidential Information may be disclosed. In the event that any of the provisions of\nthis Agreement shall be held by a court unenforceable, the remaining portions hereof shall remain in full force and effect. This\nAgreement shall be governed by the laws of the State of California, without regard to conflicts of law provisions. All fully executed\ncopies of this Agreement shall be deemed originals.\nAcknowledged and Agreed:\nAutodesk, Inc. Moldflow Corporation\nSignature:  /s/ Scott Vollmar Signature:  /s/ Lori Henderson\nDate: 1-4-08 Date: 1-2-08\nPrint Name: Scott Vollmar Print Name: Lori Henderson\nTitle: Director, Business Development Title: EVP\nAutodesk Employee: Return fully executed original to Legal Dept., Attn. Contracts Manager 111 McInnis Parkway San Rafael, CA 94903\nPage 2 of 2	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nALOGO\nConfidentiality and Non-Disclosure Agreement\nEffective Date: 1/1/2008 ("Effective Date")\nThis confidentiality and non-disclosure agreement, Agreement") is entered into by and between Autodesk, Inc., located at 111 Mclnnis Parkway,\nSan Rafael, California 94903 ("Autodesk") and Moldflow Corporation, located at 492 Old Connecticut Path, Suite 401, Framingham, MA\n01701,\nUnited States ("Company"). Each party has disclosed or anticipates disclosing to the other party certain Confidential Information (as defined below)\nin connection with the following business purpose: to share and evaluate information regarding each party's business and technology for the purpose\nof\nexploring\na\npotential\nbusiness\nrelationship\nbetween\nthe\nparties\n(collectively,\nthe\n"Business\nPurpose").\nIn\nconsideration\nof\nthe\nmutual\npromises\nand\ncovenants contained in this agreement and the disclosure of confidential information in connection with the business purpose, both parties agree as\nfollows:\n1.\nDefinition of Confidential Information. "Confidential Information" shall mean all information whether disclosed before or after the\nEffective Date, that is disclosed in written, oral, electronic, visual or other form by either party (each, as a "Disclosing Party") to the\nother party (each, as a "Receiving Party") and either (i) marked or designated as "confidential" or "proprietary" at the time of disclosure\nor (ii) otherwise clearly indicated to be confidential at the time of disclosure. Confidential Information may include, without limitation,\ncomputer programs, software or hardware products, product development plans, code, documentation, algorithms, know-how, trade\nsecrets, formulas, processes, procedures, ideas, research, inventions (whether patentable or not), copyrights, schematics and other\ntechnical, business, financial and marketing information, forecasts, strategies, names and expertise of employees and consultants and\ncustomer or partner information.\n2.\nConfidentiality Obligation. Receiving Party agrees to protect the Confidential Information by using the same degree of care as\nReceiving Party uses to protect its own confidential or proprietary information (but not less than a reasonable degree of care): (i) to\nprevent the unauthorized use, dissemination or publication of the Confidential Information (ii) not to divulge Confidential Information to\nany third party, (iii) not to make any use of such Confidential Information except for the Business Purpose, and (iv) not to copy except as\nreasonably required in direct support of the Business Purpose. Any copies made will include appropriate marking identifying same as\nconstituting or containing Confidential Information of Disclosing Party; and (v) not to reverse engineer any such Confidential\nInformation. Receiving Party shal limit the use of and access to Disclosing Party's Confidential Information to Receiving Party's\nemployees and to the employees of Receiving Party's respective parent, subsidiaries and affiliated entities or authorized representatives\nwho have: (i) a need to know and have been notified that such information is Confidential Information to be used solely for the Business\nPurpose; and (ii) entered into binding confidentiality obligations no less protective of Disclosing Party than those contained in this\nAgreement. Receiving Party may disclose Confidential Information pursuant to any statutory or regulatory authority or court order,\nprovided Disclosing Party is given prompt prior written notice of such requirement and the scope of such disclosure is limited to the\nextent possible.\n3.\nTerm. This Agreement shall have a term of one (1) year from the Effective Date. Either party may terminate this Agreement at anytime\nwithout\nliability\nfor\nsuch\ntermination\nhowever,\nthe\nobligations\nof\nReceiving\nParty\nregarding\nuse\nand\ndisclosure\nof\nthe\nConfidential\nInformation shall survive any termination or expiration of this Agreement for a period of two (2) years after the Agreement expiration\ndate or termination date.\n4.\nExclusions. Confidential Information shall not include Confidential Information that from and after the date of disclosure: (i) is or\nbecomes a matter of public knowledge through no fault of Receiving Party; or (ii) was rightfully in Receiving Party's possession prior to\nreceipt from Disclosing Party free of any obligation of confidence; or (iii) was rightfully disclosed to the Receiving Party by another\nperson without restriction as to use or disclosure; or (iv) is independently developed by Receiving Party without use of or reference to\nDisclosing Party's Confidential Information.\n5.\nOwnership. All Confidential Information and any Derivatives thereof, unless otherwise specified in writing remains the property of the\nDisclosing Party. Receiving Party acquires no rights or licenses in the intellectual property of Disclosing Party including but not limited\nto, patents, trademarks, copyrights or service marks under this Agreement or through any disclosure hereunder, except the limited right\nto use such Confidential Information in accordance with this Agreement. For purposes of this Agreement, "Derivatives" means (i) for\ncopyrightable or copyrighted material, any translation, abridgement, revision or other form in which an existing work may be recast,\ntransformed or adapted; (ii) for patentable or patented material, any improvement thereon; and (iii) for material which is protected by\ntrade secret, any new material derived from such existing trade secret material, including new material which may be protected under\ncopyright, patent and/or trade secret laws.\n6.\nEquitable Relief. Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party's Confidential\nInformation, there may be no adequate remedy at law for any breach of this Agreement. Upon any such breach, Disclosing Party shall be\nentitled to seek appropriate equitable relief, including but not limited to injunction in addition to what ever remedies it may have at law.\nReceiving Party will notify Disclosing Party in writing immediately upon learning of the occurrence of any unauthorized disclosure of\nConfidential Information or other breach of this Agreement. Receiving Party will assist Disclosing Party in remedying any unauthorized\nuse or disclosure of Confidential Information.\n7.\nReturn of Confidential Information. Receiving Party shall return all Confidential Information, any tangible media of expression to the\nextent that such tangible media incorporate any Confidential Information of Disclosing Party, and any all copies thereof upon the request\nof Disclosing Party. Any Confidential Information which cannot be returned must be destroyed and so certified by Receiving Party.\n8.\nWarranty. Disclosing Party represents and warrants to Receiving Party that it has sufficient right, title and interest in and to the\nConfidential Information to enter into this Agreement, to disclose the Confidential Information to Receiving Party, to modify and copy\nthe\nConfidential\nInformation,\nand\nto\nauthorize\nand\nallow\nReceiving\nParty\nto\ndo\nso.\nDisclosing\nParty\nhereby\nagrees\nto\nindemnify,\ndefend\nand hold harmless Receiving Party from any and all damages, costs, claims and expenses incurred in connection with any claim that\nDisclosing Party does not have the rights set forth in this Paragraph 8, or that the access, use, or reproduction of the Confidential\nInformation for the purpose of evaluating a possible business relationship infringes a patent or copyright or violates a third party's trade\nsecret rights.\nPage 1 of 2\nLOGO\nConfidentiality and Non-Disclosure Agreement\n9.\nExport. Receiving Party will not export, directly or indirectly, any technical data acquired from Disclosing Party pursuant to this\nAgreement or any product utilizing any such data to any country for which the U.S. government or any agency thereof at the time of\nexport requires an export license or other government approval without first obtaining such license or approval.\n10. Notices. All notices required or permitted to be given under this Agreement shall be given in writing and shall be effective from the date\nsent by registered or certified mail, by hand, confirmed facsimile or overnight courier to the addresses of the parties set forth herein.\nNOTICE IS NOT DEEMED TO HAVE BEEN GIVEN TO AUTODESK UNLESS NOTICE HAS BEEN DELIVERED AT THE\nFOLLOWING ADDRESS: AUTODESK, INC., Attn: General Counsel, 111 McInnis Parkway San Rafael, CA 94903.\n11. Independent Development. Receiving Party reserves the right to develop and market any technology, products or services or pursue\nbusiness\nopportunities\nthat\ncompete\nwith\nor\nare\nsimilar\nto\nthose\ndisclosed\nby\nDisclosing\nParty\nunder\nthis\nAgreement\nwithout\nthe\nuse\nof\nthe Disclosing Party's Confidential Information. Nothing contained in this Agreement shall prohibit or restrict Receiving Party from\nemploying ideas, concepts or techniques which may be retained in the unaided human memory by Receiving Party's personnel in the\ncourse of their review of the Confidential Information. The foregoing sentence shall not, however, grant Receiving Party any rights under\nany patents or copyrights.\n12.\nNo Reliance. Autodesk Confidential Information may concern planned or future development efforts for existing or new Autodesk\nproducts and services. Autodesk Confidential Information is not intended to be a promise or guarantee of future delivery of products,\nservices or features but merely reflect our current plans, which may change. Accordingly, Autodesk Confidential Information may not be\nrelied on for purchasing decisions or for any other purpose.\n13. General. This Agreement supersedes all prior discussions and writings with respect to the subject matter hereof, and constitutes the\nentire agreement. All additions or modification of this Agreement must be made in writing and signed by both parties. Neither party shall\ndisclose, except to those persons involved in evaluating the Business Purpose, nor as required by law, the existence or the content of this\nAgreement, or that the parties are discussing a potential business relationship. No failure or delay in enforcing any right will be deemed a\nwaiver. This Agreement may not be assigned by Receiving Party without the prior written consent of Disclosing Party, which consent\nshall not be unreasonably withheld. The parties understand that nothing herein requires either party to proceed with any proposed\ntransaction or relationship in connection with which Confidential Information may be disclosed. In the event that any of the provisions of\nthis Agreement shall be held by a court unenforceable, the remaining portions hereof shall remain in full force and effect. This\nAgreement shall be governed by the laws of the State of California, without regard to conflicts of law provisions. All fully executed\ncopies of this Agreement shall be deemed originals.\nAcknowledged and Agreed:\nAutodesk, Inc.\nMoldflow Corporation\nSignature: /s/ Scott Vollmar\nSignature:\n/s/ Lori Henderson\nDate:\n1-4-08\nDate:\n1-2-08\nPrint Name: Scott Vollmar\nPrint Name: Lori Henderson\nTitle:\nDirector, Business Development\nTitle:\nEVP\nAutodesk Employee: Return fully executed original to Legal Dept., Attn. Contracts Manager 111 McInnis Parkway San Rafael, CA 94903\nPage 2 of 2	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nLOGO\nConfidentiality and Non-Disclosure Agreement\nEffective Date: 1/1/2008 (“Effective Date”)\nThis confidentiality and non-disclosure agreement, (“Agreement”) is entered into by and between Autodesk, Inc., located at 111 Mclnnis Parkway,\nSan Rafael, California 94903 (“Autodesk”) and Moldflow Corporation, located at 492 Old Connecticut Path, Suite 401, Framingham, MA 01701,\nUnited States (“Company”). Each party has disclosed or anticipates disclosing to the other party certain Confidential Information (as defined below)\nin connection with the following business purpose: to share and evaluate information regarding each party’s business and technology for the purpose\nof exploring a potential business relationship between the parties (collectively, the “Business Purpose”). In consideration of the mutual promises and\ncovenants contained in this agreement and the disclosure of confidential information in connection with the business purpose, both parties agree as\nfollows:\n1. Definition of Confidential Information. “Confidential Information” shall mean all information, whether disclosed before or after the\nEffective Date, that is disclosed in written, oral, electronic, visual or other form by either party (each, as a “Disclosing Party”) to the\nother party (each, as a “Receiving Party”) and either (i) marked or designated as “confidential” or “proprietary” at the time of disclosure\nor (ii) otherwise clearly indicated to be confidential at the time of disclosure. Confidential Information may include, without limitation,\ncomputer programs, software or hardware products, product development plans, code, documentation, algorithms, know-how, trade\nsecrets, formulas, processes, procedures, ideas, research, inventions (whether patentable or not), copyrights, schematics and other\ntechnical, business, financial and marketing information, forecasts, strategies, names and expertise of employees and consultants and\ncustomer or partner information.\n2. Confidentiality Obligation. Receiving Party agrees to protect the Confidential Information by using the same degree of care as\nReceiving Party uses to protect its own confidential or proprietary information (but not less than a reasonable degree of care): (i) to\nprevent the unauthorized use, dissemination or publication of the Confidential Information (ii) not to divulge Confidential Information to\nany third party, (iii) not to make any use of such Confidential Information except for the Business Purpose, and (iv) not to copy except as\nreasonably required in direct support of the Business Purpose. Any copies made will include appropriate marking identifying same as\nconstituting or containing Confidential Information of Disclosing Party; and (v) not to reverse engineer any such Confidential\nInformation. Receiving Party shall limit the use of and access to Disclosing Party’s Confidential Information to Receiving Party’s\nemployees and to the employees of Receiving Party’s respective parent, subsidiaries and affiliated entities or authorized representatives\nwho have: (i) a need to know and have been notified that such information is Confidential Information to be used solely for the Business\nPurpose; and (ii) entered into binding confidentiality obligations no less protective of Disclosing Party than those contained in this\nAgreement. Receiving Party may disclose Confidential Information pursuant to any statutory or regulatory authority or court order,\nprovided Disclosing Party is given prompt prior written notice of such requirement and the scope of such disclosure is limited to the\nextent possible.\n3. Term. This Agreement shall have a term of one (1) year from the Effective Date. Either party may terminate this Agreement at anytime\nwithout liability for such termination however, the obligations of Receiving Party regarding use and disclosure of the Confidential\nInformation shall survive any termination or expiration of this Agreement for a period of two (2) years after the Agreement expiration\ndate or termination date.\n4. Exclusions. Confidential Information shall not include Confidential Information that from and after the date of disclosure: (i) is or\nbecomes a matter of public knowledge through no fault of Receiving Party; or (ii) was rightfully in Receiving Party’s possession prior to\nreceipt from Disclosing Party free of any obligation of confidence; or (iii) was rightfully disclosed to the Receiving Party by another\nperson without restriction as to use or disclosure; or (iv) is independently developed by Receiving Party without use of or reference to\nDisclosing Party’s Confidential Information.\n5. Ownership. All Confidential Information and any Derivatives thereof, unless otherwise specified in writing remains the property of the\nDisclosing Party. Receiving Party acquires no rights or licenses in the intellectual property of Disclosing Party including but not limited\nto, patents, trademarks, copyrights or service marks under this Agreement or through any disclosure hereunder, except the limited right\nto use such Confidential Information in accordance with this Agreement. For purposes of this Agreement, “Derivatives” means (i) for\ncopyrightable or copyrighted material, any translation, abridgement, revision or other form in which an existing work may be recast,\ntransformed or adapted; (ii) for patentable or patented material, any improvement thereon; and (iii) for material which is protected by\ntrade secret, any new material derived from such existing trade secret material, including new material which may be protected under\ncopyright, patent and/or trade secret laws.\n6. Equitable Relief. Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential\nInformation, there may be no adequate remedy at law for any breach of this Agreement. Upon any such breach, Disclosing Party shall be\nentitled to seek appropriate equitable relief, including but not limited to injunction in addition to what ever remedies it may have at law.\nReceiving Party will notify Disclosing Party in writing immediately upon learning of the occurrence of any unauthorized disclosure of\nConfidential Information or other breach of this Agreement. Receiving Party will assist Disclosing Party in remedying any unauthorized\nuse or disclosure of Confidential Information.\n7. Return of Confidential Information. Receiving Party shall return all Confidential Information, any tangible media of expression to the\nextent that such tangible media incorporate any Confidential Information of Disclosing Party, and any all copies thereof upon the request\nof Disclosing Party. Any Confidential Information which cannot be returned must be destroyed and so certified by Receiving Party.\n8. Warranty. Disclosing Party represents and warrants to Receiving Party that it has sufficient right, title and interest in and to the\nConfidential Information to enter into this Agreement, to disclose the Confidential Information to Receiving Party, to modify and copy\nthe Confidential Information, and to authorize and allow Receiving Party to do so. Disclosing Party hereby agrees to indemnify, defend\nand hold harmless Receiving Party from any and all damages, costs, claims and expenses incurred in connection with any claim that\nDisclosing Party does not have the rights set forth in this Paragraph 8, or that the access, use, or reproduction of the Confidential\nInformation for the purpose of evaluating a possible business relationship infringes a patent or copyright or violates a third party’s trade\nsecret rights.\nPage1of2\nLOGO\nConfidentiality and Non-Disclosure Agreement\n9. Export. Receiving Party will not export, directly or indirectly, any technical data acquired from Disclosing Party pursuant to this\nAgreement or any product utilizing any such data to any country for which the U.S . government or any agency thereof at the time of\nexport requires an export license or other government approval without first obtaining such license or approval.\n10. Notices. All notices required or permitted to be given under this Agreement shall be given in writing and shall be effective from the date\nsent by registered or certified mail, by hand, confirmed facsimile or overnight courier to the addresses of the parties set forth herein.\nNOTICE IS NOT DEEMED TO HAVE BEEN GIVEN TO AUTODESK UNLESS NOTICE HAS BEEN DELIVERED AT THE\nFOLLOWING ADDRESS: AUTODESK, INC., Attn: General Counsel, 111 McInnis Parkway San Rafael, CA 94903.\n11. Independent Development. Receiving Party reserves the right to develop and market any technology, products or services or pursue\nbusiness opportunities that compete with or are similar to those disclosed by Disclosing Party under this Agreement without the use of\nthe Disclosing Party’s Confidential Information. Nothing contained in this Agreement shall prohibit or restrict Receiving Party from\nemploying ideas, concepts or techniques which may be retained in the unaided human memory by Receiving Party’s personnel in the\ncourse of their review of the Confidential Information. The foregoing sentence shall not, however, grant Receiving Party any rights under\nany patents or copyrights.\n12. No Reliance. Autodesk Confidential Information may concern planned or future development efforts for existing or new Autodesk\nproducts and services. Autodesk Confidential Information is not intended to be a promise or guarantee of future delivery of products,\nservices or features but merely reflect our current plans, which may change. Accordingly, Autodesk Confidential Information may not be\nrelied on for purchasing decisions or for any other purpose.\n13. General. This Agreement supersedes all prior discussions and writings with respect to the subject matter hereof, and constitutes the\nentire agreement. All additions or modification of this Agreement must be made in writing and signed by both parties. Neither party shall\ndisclose, except to those persons involved in evaluating the Business Purpose, nor as required by law, the existence or the content of this\nAgreement, or that the parties are discussing a potential business relationship. No failure or delay in enforcing any right will be deemed a\nwaiver. This Agreement may not be assigned by Receiving Party without the prior written consent of Disclosing Party, which consent\nshall not be unreasonably withheld. The parties understand that nothing herein requires either party to proceed with any proposed\ntransaction or relationship in connection with which Confidential Information may be disclosed. In the event that any of the provisions of\nthis Agreement shall be held by a court unenforceable, the remaining portions hereof shall remain in full force and effect. This\nAgreement shall be governed by the laws of the State of California, without regard to conflicts of law provisions. All fully executed\ncopies of this Agreement shall be deemed originals.\nAcknowledged and Agreed:\nAutodesk, Inc.\nMoldflow Corporation\nSignature: /s/ Scott Vollmar\nSignature: /s/ Lori Henderson\nDate:\n1-4 -08\nDate:\n1-2 -08\nPrint Name: Scott Vollmar\nPrint Name: Lori Henderson\nTitle:\nDirector, Business Development\nTitle:\nEVP\nAutodesk Employee: Return fully executed original to Legal Dept., Attn. Contracts Manager 111 McInnis Parkway San Rafael, CA 94903\nPage2of2
+5a7096b1759e43c26444c80f86f8fdf1.pdf	effective_date jurisdiction party term	EX-99.(E)(13) 10 a2082556zex-99_e13.htm EXHIBIT 99(E)(13)\nQuickLinks -- Click here to rapidly navigate through this document\nExhibit (e)(13)\nMUTUAL NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT\nThis Mutual Non-Disclosure and Non-Solicitation Agreement (this "Agreement"), is made as of September 17, 2001 between EarthLink, Inc. a\nDelaware corporation ("EarthLink"), and PeoplePC, Inc., a Delaware corporation ("PeoplePC"). EarthLink and PeoplePC are sometimes referred to\nherein individually as a "Party" and collectively as the "Parties."\n1. Purpose. EarthLink and PeoplePC wish to have discussions relating to a potential transaction (the "Transaction") between EarthLink\n(and/or its subsidiaries and stockholders) and PeoplePC (and/or its subsidiaries and stockholders). In the course of such discussions, each Party\nexpects to make available to the other Party and its Representatives (as defined herein) Evaluation Material (as defined herein) concerning the\nbusinesses, financial condition, operations, assets, properties, liabilities, and prospects of such Party. As a condition to making such information\navailable, each Party is entering this Agreement and agrees that all Evaluation Material received by it or its Representatives from the other Party or\nany of its Representatives shall be treated in accordance with this Agreement.\n2. Certain Definitions. As used in this Agreement: (i) the term "Receiving Party" means the Party receiving Evaluation Material; (ii) the\nterm "Furnishing Party" means the Party providing Evaluation Material or causing Evaluation Material to be provided; (iii) the term\n"Representatives" means the directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, investment\nbankers, financial advisors and other consultants and advisors engaged in connection with the review and evaluation of the Transaction) of the\nspecified Party; and (iv) the term "Evaluation Material" means all proprietary and confidential information concerning the Furnishing Party or any\nof its subsidiaries or affiliates, whether in verbal, visual, written, electronic or other form, which is made available by the Furnishing Party or any of\nits Representatives to the Receiving Party or any of its Representatives ("Primary Evaluation Material"), together, in each case, with all notes,\nmemoranda, summaries, analyses, studies, compilations and other writings relating thereto or based in whole or in part thereon prepared by the\nReceiving Party or any of its Representatives ("Derivative Evaluation Material"). Notwithstanding the foregoing, the term "Evaluation Material"\nshall not include, and the Parties' obligations herein (other than their obligations under paragraph 6 of this Agreement) shall not extend to\ninformation which (a) was rightfully in the possession of the Receiving Party prior to disclosure by the Furnishing Party; (b) was or is independently\ndeveloped by the Receiving Party without use of the Evaluation Material; (c) is now or hereafter becomes available to the public other than as a\nresult of disclosure by the Receiving Party or any of the Receiving Party's Representatives in violation of this Agreement; (d) becomes available to\nthe Receiving Party or any of its Representatives on a non-confidential basis from a source other than the Furnishing Party or any of its\nRepresentatives and such source is not, to the knowledge of the Receiving Party following reasonable inquiry, under any obligation to the Furnishing\nParty or any of its Representatives (whether contractual, legal or fiduciary) to keep such information confidential; or (e) is transmitted by or on\nbehalf of the Furnishing Party after receiving written notification from the Receiving Party of the termination of discussions relating to the\nTransaction or written instructions from the Receiving Party not to furnish any further Evaluation Material.\n3. Confidentiality and Use of Evaluation Material.\n(a) Confidentiality of Evaluation Material. All Evaluation Material (i) shall be used solely for the purpose of evaluating and\nconsidering the Transaction; (ii) shall be kept strictly confidential by the Receiving Party; and (iii) shall be provided by the Receiving Party\nsolely to those of its Representatives to whom disclosure is reasonably required to facilitate the Receiving Party's evaluation or consideration\nof the Transaction, it being the intention of the Parties to restrict the dissemination of Evaluation Material to as small a working group as\npracticable. The Parties agree that all Evaluation Material is and shall remain the property of the Furnishing Party. Before providing access to\nEvaluation Material to any Representative, the Receiving Party shall inform such Representative of the confidentiality of the Evaluation\nMaterial, and shall advise such\nRepresentative that, by accepting possession of or access to such information, such Representative is agreeing to be bound by this\nAgreement. Each Party shall be responsible for any breach of this Agreement by any of its Representatives.\n(b) Compulsory Disclosure of Evaluation Material. If the Receiving Party or its Representatives are requested or required in any\njudicial, arbitral or administrative proceeding or by any governmental or regulatory authority to disclose any Evaluation Material (whether by\ndeposition, interrogatory, request for documents, subpoena, civil investigative demand, or otherwise), or the Receiving Party is so requested\nor required to disclose any of the facts disclosure of which is prohibited under paragraph (3)(e) of this Agreement, the Receiving Party shall\ngive the Furnishing Party prompt notice of such request so that the Furnishing Party may seek an appropriate protective order or other\nappropriate remedy and/or waive compliance with the provisions of this Agreement, and, upon the Furnishing Party's request and at the\nFurnishing Party's expense, shall reasonably cooperate with the Furnishing Party in seeking such an order. If, in the absence of a protective\norder or other remedy or the receipt of a waiver by the Furnishing Party, the Receiving Party is nontheless, in the opinion of the Receiving\nParty's or (in the case of disclosure requested or required of a Representative, such Representative's) outside counsel or General Counsel,\nlegally compelled to disclose Evaluation Material, the Receiving Party shall disclose only that portion of the Evaluation Material which the\nReceiving Party is legally required to disclose and upon the Furnishing Party's request and at the Furnishing Party's expense, shall use all\nrequisite reasonable efforts to obtain assurances that confidential treatment will be accorded to such Evaluation Material to the extent such\nassurances are available. Subject to the foregoing conditions and limitations, the Receiving Party may disclose Evaluation Material under the\ncircumstances set forth in this paragraph (b) without liability hereunder.\n(c) Other Public Disclosure. Except (i) for such public disclosure as may be necessary, in the good faith judgment of the disclosing\nParty consistent with advice of counsel, for the disclosing Party not to be in violation of any applicable law, regulation or order, or (ii) with\nthe prior written consent of the order Party, neither Part shall:\n(x) make any disclosure (and each Party shall direct its Representatives not to make any disclosure) to any person of (A) the\nfact that discussions, negotiations or investigations are taking or have taken place concerning a Transaction, (B) the existence or\ncontents of this Agreement, or the fact that either Party has requested or received Evaluation Material from the other Party, or (C) any\nof the terms, conditions or other facts with respect to any proposed Transaction, including the status of the discussions or negotiations\nrelated thereto, or\n(y) make any public statement concerning a proposed Transaction.\n(d) Notice If either Party proposes to make any disclosure in reliance on clause (i) above, the disclosing Party shall, to the extent\npracticable, provide the other Party with the text of the proposed disclosure as far in advance of its disclosure as is practicable and shall in\ngood faith consult with and consider the suggestions of the other Party concerning the nature and scope of the information it proposes to\ndisclose. Notwithstanding the foregoing, a Party may make such public announcement or public statement if in the opinion of such Party's\noutside counsel or General Counsel, such public announcement or public statement is necessary to avoid committing a violation of law or of\nany rule or regulation of any securities association, stock exchange or national securities quotation system on which such Party's securities\nare listed or trade. In such event, the disclosing Party shall use its reasonable best efforts to give advance notice to the other Party and to\nconsult with the other Party on the timing and content of any such public announcement or public statement.\n(e) Certain Securities Law Restrictions. Each Party acknowledges that the Evaluation Material may contain material nonpublic\ninformation concerning the Furnishing Party. Each Party\n2\nfurther acknowledges its awareness of the restrictions imposed by federal and state securities laws on persons in possession of material\nnonpublic information. Nothing herein shall constitute an admission by either Party that any Evaluation Material in fact contains material\nnonpublic information concerning the Furnishing Party.\n(f) Contact with Employees and Representatives. Neither Party shall communicate with any employee of the other Party regarding\nthe Transaction or disclose any Evaluation Material to any employee or Representative of the other Party, other than the employees and\nRepresentatives named on the working group lists provided by the Parties from time to time.\n(g) General. Notwithstanding any other provision of this Agreement, neither Party will be restricted from using the information\ncontained in the Evaluation Material that is retained in the minds of Representatives who have had access to the other Party's Evaluation\nMaterial, unless such use shall infringe on any of such Party's patent rights, trademark rights or copyright rights.\n4. Accuracy of Evaluation Material: No Representations or Warranties. Each Party acknowledges and agrees (a) that no representation or\nwarranty, express or implied, is made by either Party or any of its respective Representatives as to the accuracy or completeness of the Evaluation\nMaterial, and (b) that the Parties shall be entitled to rely only on those representations and warranties (if any) that may be made in a definitive\nwritten agreement for the Transaction, signed and delivered by both Parties, and then only to the extent, and subject to the limitations, provided\ntherein.\n5. No Solicitation.\n(a) For a period of one year subsequent to the termination of discussions regarding a Transaction, neither Party shall, without the prior\nwritten consent of the other Party, directly or indirectly solicit for hire any person currently employed by the other Party (or any of its\nsubsidiaries) with whom the hiring Party first has contact, or who first becomes known to the hiring Party. In the course of the Parties'\ndiscussions and due diligence with respect to the proposed Transaction; provided, however, that the foregoing provision shall not prevent\neither Party, without such consent, from employing any employee who (i) contacts the hiring Party directly at his or her own initiative\nwithout any direct or indirect solicitation by or encouragement from the hiring Party, (ii) responds to a mass media solicitation or\nadvertisement consistent with the hiring Party's past practices that is not directed at employees of the other Party or (iii) is identified by a\nthird party executive search firm or employment agency without any assistance from such Party.\n(b) For a period one year from the date of this Agreement, neither Party shall, without the prior written consent of the other Party or the\nother Party's board of directors, either directly or indirectly through any affiliate or Representative or otherwise: (i) acquire, offer to acquire,\nor agree to acquire, by purchase, tender offer, merger, consolidation, share exchange or otherwise, ownership or control of any voting\nsecurities, or any direct or indirect right to acquire any voting securities, of the other Party, any subsidiary thereof, or any successor\ncorporation thereto; (ii) make, or in any way participate in any "solicitation" of "proxies" (as such terms are used in the rules and regulations\nof the Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of, any\nvoting securities of the other Party; (iii) seek or propose to influence or control the management or policies of the other Party; (iv) make any\npublic announcement with respect to, or submit a proposal for, or offer of any merger, acquisition or other business combination or\nextraordinary transaction involving the other Party or any of its subsidiaries or any securities or assets of the other Party or any of its\nsubsidiaries; (v) form, join or in any way participate in a "group"( as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended) in connection with any of the foregoing, or (vi) request the other Party or any of the other party's Representatives to amend or\nwaive any provision of this paragraph 5(b) in any manner which may reasonably be expected to compel or result in public disclosure;\nprovided that such limitations shall expire upon the public\n3\nannouncement of a third party tender offer for more than fifty percent of the outstanding voting securities of the other Party or a business\ncombination between the other Party and a third party. Each Party (the "Representing Party") represents and warrants to the other Party that\nas of the date of this Agreement the Representing Party does not directly or indirectly own or possess voting or dispositive control over any\nvoting securities of the other Party.\n6. Return and Destruction of Evaluation Material. At any time after termination of discussions by either Party with respect to the\nTransaction, upon the request of the Furnishing Party, the Receiving Party shall promptly (and in no event later than five business days after such\nrequest) (a) redeliver or cause to be redelivered to the Furnishing Party all copies of all Primary Evaluation Material in the possession or control of\nthe Receiving Party or its Representatives which is in a visual or written format and erase or destroy all copies of all such Primary Evaluation\nMaterial which is stored in electronic format, and (b) destroy or cause to be destroyed all Derivative Evaluation Material in the possession or control\nof the Receiving Party or any of its Representatives. Nothing herein shall obligate the Receiving Party to provide any Derivative Evaluation Material\nto the Furnishing Party. Notwithstanding the return, destruction or erasure of Evaluation Material hereunder, the Receiving Party and its\nRepresentatives shall continue to be bound by their confidentiality and other obligations hereunder.\n7. Remedies. Each Party agrees that money damages would not be a sufficient remedy for any breach of any provision of this Agreement by\nit or any of its Representatives, and that in addition to all other remedies which either Party may have, each Party shall be entitled to specific\nperformance and injunctive or other equitable relief as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive\nremedies for a breach of this Agreement but shall be in addition to all other remedies available at law or in equity. No failure or delay by either Party\nin exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any\nother or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event that either Party should institute proceedings\nto enforce any provision of this Agreement, the prevailing Party in such proceedings shall be entitled to recover all expenses relating to the\nenforcement of this Agreement, including reasonable attorneys' fees and costs, in addition to any other remedies.\n8. Miscellaneous.\n(a) No License. Neither Party grants a license, by implication or otherwise, under any of its trade secrets or other intellectual\nproperty rights to the Receiving Party. The terms of this Agreement shall not be construed to limit either Party's right to independently\ndevelop or acquire products without use of the other Party's Evaluation Material. The Furnishing Party acknowledges that the Receiving\nParty may currently or in the future develop information internally, or receive information from other parties, that is similar to the Evaluation\nMaterial. Accordingly, nothing in this Agreement will be construed as a representation or agreement that the Receiving Party will not\ndevelop or have developed for its products, concepts, systems, or techniques that are similar to or compete with the products, concepts,\nsystems or techniques contemplated by or embodied in the Evaluation Material, provided that the Receiving Party does not violate any of its\nobligations under this Agreement in connection with such development.\n(b) Entire Agreement. This Agreement contains the sole and entire agreement between the Parties with respect to the confidentiality\nof the Evaluation Material and the confidentiality of their discussions, negotiations and investigations concerning a Transaction.\n(c) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly signed\nand delivered by or on behalf of both Parties.\n4\n(d) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or\nenforceability of any other provision of this Agreement unless the enforcement of such provision in such circumstances would be\ninequitable.\n(e) No Obligation to Complete a Transaction. It is expressly understood that this Agreement is not intended to, and does not,\nconstitute an agreement to consummate a Transaction, to conduct or continue negotiations with respect to a Transaction, or to enter into a\ndefinitive agreement with respect to a Transaction, and neither Party shall have any rights or obligations of any kind whatsoever with respect\nto such a Transaction by virtue of this Agreement or by virtue of any other written or oral expression by the Parties' respective\nRepresentatives unless and until a definitive agreement with respect to a Transaction is executed and delivered by both Parties, other than for\nthe matters specifically agreed to herein. Both Parties further acknowledge and agree that each Party reserves the right, in its sole discretion,\nto provide or not to provide Evaluation Material to the Receiving Party under this Agreement, to reject any and all proposals made by the\nother Party or any of its Representatives with regard to a Transaction, and to terminate discussions and negotiations at any time. If either\nParty determines not to proceed with negotiations with respect to a Transaction, it will promptly inform the other Party of such\ndetermination.\n(f) Governing Law; Forum. This Agreement shall be governed by and construed in accordance with the internal laws of the State of\nGeorgia, without regard to the principles of the conflict of laws thereof. Each Party consents and submits to the exclusive jurisdiction of the\nfederal and state courts in the State of Georgia, and the city of Atlanta, for the adjudication of any action, suit, or proceeding arising out of or\notherwise relating to this Agreement.\n[Signatures on following page]\n5\nThe Parties have executed this Agreement as of the date first written above.\nEarthLink, Inc.\nPeoplePC, Inc.\nBy:\n/s/ BRINTON O.C. YOUNG\nBy:\n/s/ CHARLES ORTMEYER\nName:\nBrinton O.C. Young\nName:\nCharles Ortmeyer\nTitle:\nEVP of Strategic Planning\nTitle:\nSVP and General Counsel\n6\nQuickLinks\nMUTUAL NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT	EX-99.(E)(13) 10 a2082556zex-99_e13.htm EXHIBIT 99(E)(13)\nQuickLinks -- Click here to rapidly navigate through this document\nExhibit (e)(13)\nMUTUAL NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT\nThis Mutual Non-Disclosure and Non-Solicitation Agreement (this "Agreement"), is made as of September 17, 2001 between EarthLink, Inc. a\nDelaware corporation ("EarthLink"), and PeoplePC, Inc., a Delaware corporation ("PeoplePC"). EarthLink and PeoplePC are sometimes referred to\nherein individually as a "Party" and collectively as the "Parties."\n1. Purpose. EarthLink and PeoplePC wish to have discussions relating to a potential transaction (the "Transaction") between EarthLink\n(and/or its subsidiaries and stockholders) and PeoplePC (and/or its subsidiaries and stockholders). In the course of such discussions, each Party\nexpects to make available to the other Party and its Representatives (as defined herein) Evaluation Material (as defined herein) concerning the\nbusinesses, financial condition, operations, assets, properties, liabilities, and prospects of such Party. As a condition to making such information\navailable, each Party is entering this Agreement and agrees that all Evaluation Material received by it or its Representatives from the other Party or\nany of its Representatives shall be treated in accordance with this Agreement.\n2. Certain Definitions. As used in this Agreement: (i) the term "Receiving Party" means the Party receiving Evaluation Material; (ii) the\nterm "Furnishing Party" means the Party providing Evaluation Material or causing Evaluation Material to be provided; (iii) the term\n"Representatives" means the directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, investment\nbankers, financial advisors and other consultants and advisors engaged in connection with the review and evaluation of the Transaction) of the\nspecified Party; and (iv) the term "Evaluation Material" means all proprietary and confidential information concerning the Furnishing Party or any\nof its subsidiaries or affiliates, whether in verbal, visual, written, electronic or other form, which is made available by the Furnishing Party or any of\nits Representatives to the Receiving Party or any of its Representatives ("Primary Evaluation Material"), together, in each case, with all notes,\nmemoranda, summaries, analyses, studies, compilations and other writings relating thereto or based in whole or in part thereon prepared by the\nReceiving Party or any of its Representatives ("Derivative Evaluation Material"). Notwithstanding the foregoing, the term "Evaluation Material"\nshall not include, and the Parties' obligations herein (other than their obligations under paragraph 6 of this Agreement) shall not extend to\ninformation which (a) was rightfully in the possession of the Receiving Party prior to disclosure by the Furnishing Party; (b) was or is independently\ndeveloped by the Receiving Party without use of the Evaluation Material; (c) is now or hereafter becomes available to the public other than as a\nresult of disclosure by the Receiving Party or any of the Receiving Party's Representatives in violation of this Agreement; (d) becomes available to\nthe Receiving Party or any of its Representatives on a non-confidential basis from a source other than the Furnishing Party or any of its\nRepresentatives and such source is not, to the knowledge of the Receiving Party following reasonable inquiry, under any obligation to the Furnishing\nParty or any of its Representatives (whether contractual, legal or fiduciary) to keep such information confidential; or (e) is transmitted by or on\nbehalf of the Furnishing Party after receiving written notification from the Receiving Party of the termination of discussions relating to the\nTransaction or written instructions from the Receiving Party not to furnish any further Evaluation Material.\n3. Confidentiality and Use of Evaluation Material.\n(@) Confidentiality of Evaluation Material. ~All Evaluation Material (i) shall be used solely for the purpose of evaluating and\nconsidering the Transaction; (ii) shall be kept strictly confidential by the Receiving Party; and (iii) shall be provided by the Receiving Party\nsolely to those of its Representatives to whom disclosure is reasonably required to facilitate the Receiving Party's evaluation or consideration\nof the Transaction, it being the intention of the Parties to restrict the dissemination of Evaluation Material to as small a working group as\npracticable. The Parties agree that all Evaluation Material is and shall remain the property of the Furnishing Party. Before providing access to\nEvaluation Material to any Representative, the Receiving Party shall inform such Representative of the confidentiality of the Evaluation\nMaterial, and shall advise such\nRepresentative that, by accepting possession of or access to such information, such Representative is agreeing to be bound by this\nAgreement. Each Party shall be responsible for any breach of this Agreement by any of its Representatives.\n(b) Compulsory Disclosure of Evaluation Material. If the Receiving Party or its Representatives are requested or required in any\njudicial, arbitral or administrative proceeding or by any governmental or regulatory authority to disclose any Evaluation Material (whether by\ndeposition, interrogatory, request for documents, subpoena, civil investigative demand, or otherwise), or the Receiving Party is so requested\nor required to disclose any of the facts disclosure of which is prohibited under paragraph (3)(e) of this Agreement, the Receiving Party shall\ngive the Furnishing Party prompt notice of such request so that the Furnishing Party may seek an appropriate protective order or other\nappropriate remedy and/or waive compliance with the provisions of this Agreement, and, upon the Furnishing Party's request and at the\nFurnishing Party's expense, shall reasonably cooperate with the Furnishing Party in seeking such an order. If, in the absence of a protective\norder or other remedy or the receipt of a waiver by the Furnishing Party, the Receiving Party is nontheless, in the opinion of the Receiving\nParty's or (in the case of disclosure requested or required of a Representative, such Representative's) outside counsel or General Counsel,\nlegally compelled to disclose Evaluation Material, the Receiving Party shall disclose only that portion of the Evaluation Material which the\nReceiving Party is legally required to disclose and upon the Furnishing Party's request and at the Furnishing Party's expense, shall use all\nrequisite reasonable efforts to obtain assurances that confidential treatment will be accorded to such Evaluation Material to the extent such\nassurances are available. Subject to the foregoing conditions and limitations, the Receiving Party may disclose Evaluation Material under the\ncircumstances set forth in this paragraph (b) without liability hereunder.\n(c) Other Public Disclosure. Except (i) for such public disclosure as may be necessary, in the good faith judgment of the disclosing\nParty consistent with advice of counsel, for the disclosing Party not to be in violation of any applicable law, regulation or order, or (ii) with\nthe prior written consent of the order Party, neither Part shall:\n(x) make any disclosure (and each Party shall direct its Representatives not to make any disclosure) to any person of (A) the\nfact that discussions, negotiations or investigations are taking or have taken place concerning a Transaction, (B) the existence or\ncontents of this Agreement, or the fact that either Party has requested or received Evaluation Material from the other Party, or (C) any\nof the terms, conditions or other facts with respect to any proposed Transaction, including the status of the discussions or negotiations\nrelated thereto, or\n(v) make any public statement concerning a proposed Transaction.\n(d) Notice If either Party proposes to make any disclosure in reliance on clause (i) above, the disclosing Party shall, to the extent\npracticable, provide the other Party with the text of the proposed disclosure as far in advance of its disclosure as is practicable and shall in\ngood faith consult with and consider the suggestions of the other Party concerning the nature and scope of the information it proposes to\ndisclose. Notwithstanding the foregoing, a Party may make such public announcement or public statement if in the opinion of such Party's\noutside counsel or General Counsel, such public announcement or public statement is necessary to avoid committing a violation of law or of\nany rule or regulation of any securities association, stock exchange or national securities quotation system on which such Party's securities\nare listed or trade. In such event, the disclosing Party shall use its reasonable best efforts to give advance notice to the other Party and to\nconsult with the other Party on the timing and content of any such public announcement or public statement.\n(e) Certain Securities Law Restrictions. Each Party acknowledges that the Evaluation Material may contain material nonpublic\ninformation concerning the Furnishing Party. Each Party\nfurther acknowledges its awareness of the restrictions imposed by federal and state securities laws on persons in possession of material\nnonpublic information. Nothing herein shall constitute an admission by either Party that any Evaluation Material in fact contains material\nnonpublic information concerning the Furnishing Party.\n(f) Contact with Employees and Representatives. Neither Party shall communicate with any employee of the other Party regarding\nthe Transaction or disclose any Evaluation Material to any employee or Representative of the other Party, other than the employees and\nRepresentatives named on the working group lists provided by the Parties from time to time.\n(g) General. Notwithstanding any other provision of this Agreement, neither Party will be restricted from using the information\ncontained in the Evaluation Material that is retained in the minds of Representatives who have had access to the other Party's Evaluation\nMaterial, unless such use shall infringe on any of such Party's patent rights, trademark rights or copyright rights.\n4. Accuracy of Evaluation Material: No Representations or Warranties. Each Party acknowledges and agrees (a) that no representation or\nwarranty, express or implied, is made by either Party or any of its respective Representatives as to the accuracy or completeness of the Evaluation\nMaterial, and (b) that the Parties shall be entitled to rely only on those representations and warranties (if any) that may be made in a definitive\nwritten agreement for the Transaction, signed and delivered by both Parties, and then only to the extent, and subject to the limitations, provided\ntherein.\n5. No Solicitation.\n(a) For a period of one year subsequent to the termination of discussions regarding a Transaction, neither Party shall, without the prior\nwritten consent of the other Party, directly or indirectly solicit for hire any person currently employed by the other Party (or any of its\nsubsidiaries) with whom the hiring Party first has contact, or who first becomes known to the hiring Party. In the course of the Parties'\ndiscussions and due diligence with respect to the proposed Transaction; provided, however, that the foregoing provision shall not prevent\neither Party, without such consent, from employing any employee who (i) contacts the hiring Party directly at his or her own initiative\nwithout any direct or indirect solicitation by or encouragement from the hiring Party, (ii) responds to a mass media solicitation or\nadvertisement consistent with the hiring Party's past practices that is not directed at employees of the other Party or (iii) is identified by a\nthird party executive search firm or employment agency without any assistance from such Party.\n(b) For a period one year from the date of this Agreement, neither Party shall, without the prior written consent of the other Party or the\nother Party's board of directors, either directly or indirectly through any affiliate or Representative or otherwise: (i) acquire, offer to acquire,\nor agree to acquire, by purchase, tender offer, merger, consolidation, share exchange or otherwise, ownership or control of any voting\nsecurities, or any direct or indirect right to acquire any voting securities, of the other Party, any subsidiary thereof, or any successor\ncorporation thereto; (ii) make, or in any way participate in any "solicitation" of "proxies" (as such terms are used in the rules and regulations\nof the Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of, any\nvoting securities of the other Party; (iii) seek or propose to influence or control the management or policies of the other Party; (iv) make any\npublic announcement with respect to, or submit a proposal for, or offer of any merger, acquisition or other business combination or\nextraordinary transaction involving the other Party or any of its subsidiaries or any securities or assets of the other Party or any of its\nsubsidiaries; (v) form, join or in any way participate in a "group"( as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended) in connection with any of the foregoing, or (vi) request the other Party or any of the other party's Representatives to amend or\nwaive any provision of this paragraph 5(b) in any manner which may reasonably be expected to compel or result in public disclosure;\nprovided that such limitations shall expire upon the public\nannouncement of a third party tender offer for more than fifty percent of the outstanding voting securities of the other Party or a business\ncombination between the other Party and a third party. Each Party (the "Representing Party") represents and warrants to the other Party that\nas of the date of this Agreement the Representing Party does not directly or indirectly own or possess voting or dispositive control over any\nvoting securities of the other Party.\n6. Return and Destruction of Evaluation Material. = At any time after termination of discussions by either Party with respect to the\nTransaction, upon the request of the Furnishing Party, the Receiving Party shall promptly (and in no event later than five business days after such\nrequest) (a) redeliver or cause to be redelivered to the Furnishing Party all copies of all Primary Evaluation Material in the possession or control of\nthe Receiving Party or its Representatives which is in a visual or written format and erase or destroy all copies of all such Primary Evaluation\nMaterial which is stored in electronic format, and (b) destroy or cause to be destroyed all Derivative Evaluation Material in the possession or control\nof the Receiving Party or any of its Representatives. Nothing herein shall obligate the Receiving Party to provide any Derivative Evaluation Material\nto the Furnishing Party. Notwithstanding the return, destruction or erasure of Evaluation Material hereunder, the Receiving Party and its\nRepresentatives shall continue to be bound by their confidentiality and other obligations hereunder.\n7. Remedies. Each Party agrees that money damages would not be a sufficient remedy for any breach of any provision of this Agreement by\nit or any of its Representatives, and that in addition to all other remedies which either Party may have, each Party shall be entitled to specific\nperformance and injunctive or other equitable relief as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive\nremedies for a breach of this Agreement but shall be in addition to all other remedies available at law or in equity. No failure or delay by either Party\nin exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any\nother or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event that either Party should institute proceedings\nto enforce any provision of this Agreement, the prevailing Party in such proceedings shall be entitled to recover all expenses relating to the\nenforcement of this Agreement, including reasonable attorneys' fees and costs, in addition to any other remedies.\n8. Miscellaneous.\n(@) No License. Neither Party grants a license, by implication or otherwise, under any of its trade secrets or other intellectual\nproperty rights to the Receiving Party. The terms of this Agreement shall not be construed to limit either Party's right to independently\ndevelop or acquire products without use of the other Party's Evaluation Material. The Furnishing Party acknowledges that the Receiving\nParty may currently or in the future develop information internally, or receive information from other parties, that is similar to the Evaluation\nMaterial. Accordingly, nothing in this Agreement will be construed as a representation or agreement that the Receiving Party will not\ndevelop or have developed for its products, concepts, systems, or techniques that are similar to or compete with the products, concepts,\nsystems or techniques contemplated by or embodied in the Evaluation Material, provided that the Receiving Party does not violate any of its\nobligations under this Agreement in connection with such development.\n(b) Entire Agreement. This Agreement contains the sole and entire agreement between the Parties with respect to the confidentiality\nof the Evaluation Material and the confidentiality of their discussions, negotiations and investigations concerning a Transaction.\n(c) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly signed\nand delivered by or on behalf of both Parties.\n \n(d) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or\nenforceability of any other provision of this Agreement unless the enforcement of such provision in such circumstances would be\ninequitable.\n(e) No Obligation to Complete a Transaction. It is expressly understood that this Agreement is not intended to, and does not,\nconstitute an agreement to consummate a Transaction, to conduct or continue negotiations with respect to a Transaction, or to enter into a\ndefinitive agreement with respect to a Transaction, and neither Party shall have any rights or obligations of any kind whatsoever with respect\nto such a Transaction by virtue of this Agreement or by virtue of any other written or oral expression by the Parties' respective\nRepresentatives unless and until a definitive agreement with respect to a Transaction is executed and delivered by both Parties, other than for\nthe matters specifically agreed to herein. Both Parties further acknowledge and agree that each Party reserves the right, in its sole discretion,\nto provide or not to provide Evaluation Material to the Receiving Party under this Agreement, to reject any and all proposals made by the\nother Party or any of its Representatives with regard to a Transaction, and to terminate discussions and negotiations at any time. If either\nParty determines not to proceed with negotiations with respect to a Transaction, it will promptly inform the other Party of such\ndetermination.\n(f) Governing Law; Forum. This Agreement shall be governed by and construed in accordance with the internal laws of the State of\nGeorgia, without regard to the principles of the conflict of laws thereof. Each Party consents and submits to the exclusive jurisdiction of the\nfederal and state courts in the State of Georgia, and the city of Atlanta, for the adjudication of any action, suit, or proceeding arising out of or\notherwise relating to this Agreement.\n[Signatures on following page]\n5\nThe Parties have executed this Agreement as of the date first written above.\nEarthLink, Inc. PeoplePC, Inc.\nBy: /s/ BRINTON O.C. YOUNG By: /s/ CHARLES ORTMEYER\nName: Brinton O.C. Young Name: Charles Ortmeyer\nTitle: EVP of Strategic Planning Title: SVP and General Counsel\n6\nQuickLinks\nMUTUAL NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT	EX-99.(E)(13) 10 a2082556zex-99_e13.htm EXHIBIT 99(E)(13)\nQuickLinks Click here to rapidly navigate through this document\nExhibit (e)(13)\nMUTUAL NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT\nThis Mutual Non-Disclosure and Non-Solicitation Agreement (this "Agreement"), is made as of September 17, 2001 between EarthLink, Inc. a\nDelaware corporation ("EarthLink"), and PeoplePC, Inc., a Delaware corporation ("PeoplePC"). EarthLink and PeoplePC are sometimes referred to\nherein individually as a "Party" and collectively as the "Parties."\n1. Purpose. EarthLink and PeoplePC wish to have discussions relating to a potential transaction (the "Transaction") between EarthLink\n(and/or its subsidiaries and stockholders) and PeoplePC (and/or its subsidiaries and stockholders). In the course of such discussions, each Party\nexpects to make available to the other Party and its Representatives (as defined herein) Evaluation Material (as defined herein) concerning the\nbusinesses, financial condition, operations, assets, properties, liabilities, and prospects of such Party. As a condition to making such information\navailable, each Party is entering this Agreement and agrees that all Evaluation Material received by it or its Representatives from the other Party\nor\nany of its Representatives shall be treated in accordance with this Agreement.\n2. Certain Definitions. As used in this Agreement: (i) the term "Receiving Party" means the Party receiving Evaluation Material; (ii) the\nterm "Furnishing Party" means the Party providing Evaluation Material or causing Evaluation Material to be provided; (iii) the term\n"Representatives" means the directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, investment\nbankers,\nfinancial advisors and other consultants and advisors engaged in connection with the review and evaluation of the Transaction) of the\nspecified Party; and (iv) the term "Evaluation Material" means all proprietary and confidential information concerning the Furnishing Party or any\nof its subsidiaries or affiliates, whether in verbal, visual, written, electronic or other form, which is made available by the Furnishing Party or any\nof\nits\nRepresentatives\nto\nthe\nReceiving\nParty\nor\nany\nof\nits\nRepresentatives\n("Primary\nEvaluation\nMaterial"),\ntogether,\nin\neach\ncase,\nwith\nall\nnotes,\nmemoranda, summaries, analyses, studies, compilations and other writings relating thereto or based in whole or in part thereon prepared by the\nReceiving Party or any of its Representatives ("Derivative Evaluation Material"). Notwithstanding the foregoing, the term "Evaluation Material"\nshall not include, and the Parties' obligations herein (other than their obligations under paragraph 6 of this Agreement) shall not extend to\ninformation which (a) was rightfully in the possession of the Receiving Party prior to disclosure by the Furnishing Party; (b) was or is independently\ndeveloped by the Receiving Party without use of the Evaluation Material; (c) is now or hereafter becomes available to the public other than as a\nresult of disclosure by the Receiving Party or any of the Receiving Party's Representatives in violation of this Agreement; (d) becomes available\nto\nthe Receiving Party or any of its Representatives on a non-confidential basis from a source other than the Furnishing Party or any of its\nRepresentatives and such source is not, to the knowledge of the Receiving Party following reasonable inquiry, under any obligation to the Furnishing\nParty or any of its Representatives (whether contractual, legal or fiduciary) to keep such information confidential; or (e) is transmitted by or on\nbehalf of the Furnishing Party after receiving written notification from the Receiving Party of the termination of discussions relating to the\nTransaction or written instructions from the Receiving Party not to furnish any further Evaluation Material.\n3. Confidentiality and Use of Evaluation Material.\n(a) Confidentiality of Evaluation Material. All Evaluation Material (i) shall be used solely for the purpose of evaluating and\nconsidering the Transaction; (ii) shall be kept strictly confidential by the Receiving Party; and (iii) shall be provided by the Receiving Party\nsolely\nto\nthose\nof\nits\nRepresentatives\nto\nwhom\ndisclosure\nis\nreasonably\nrequired\nto\nfacilitate\nthe\nReceiving\nParty's\nevaluation\nor\nconsideration\nof the Transaction, it being the intention of the Parties to restrict the dissemination of Evaluation Material to as small a working group as\npracticable. The Parties agree that all Evaluation Material is and shall remain the property of the Furnishing Party. Before providing access to\nEvaluation Material to any Representative, the Receiving Party shall inform such Representative of the confidentiality of the Evaluation\nMaterial, and shall advise such\nRepresentative that, by accepting possession of or access to such information, such Representative is agreeing to be bound by this\nAgreement. Each Party shall be responsible for any breach of this Agreement by any of its Representatives.\n(b) Compulsory Disclosure of Evaluation Material. If the Receiving Party or its Representatives are requested or required in any\njudicial, arbitral or administrative proceeding or by any governmental or regulatory authority to disclose any Evaluation Material (whether by\ndeposition, interrogatory, request for documents, subpoena, civil investigative demand, or otherwise), or the Receiving Party is so requested\nor required to disclose any of the facts disclosure of which is prohibited under paragraph (3)(e) of this Agreement, the Receiving Party shall\ngive the Furnishing Party prompt notice of such request so that the Furnishing Party may seek an appropriate protective order or other\nappropriate remedy and/or waive compliance with the provisions of this Agreement, and, upon the Furnishing Party's request and at the\nFurnishing Party's expense, shall reasonably cooperate with the Furnishing Party in seeking such an order. If, in the absence of a protective\norder or other remedy or the receipt of a waiver by the Furnishing Party, the Receiving Party is nontheless, in the opinion of the Receiving\nParty's or (in the case of disclosure requested or required of a Representative, such Representative's) outside counsel or General Counsel,\nlegally compelled to disclose Evaluation Material, the Receiving Party shall disclose only that portion of the Evaluation Material which the\nReceiving Party is legally required to disclose and upon the Furnishing Party's request and at the Furnishing Party's expense, shall use all\nrequisite reasonable efforts to obtain assurances that confidential treatment will be accorded to such Evaluation Material to the extent such\nassurances are available. Subject to the foregoing conditions and limitations, the Receiving Party may disclose Evaluation Material under the\ncircumstances set forth in this paragraph (b) without liability hereunder.\n(c) Other Public Disclosure. Except (i) for such public disclosure as may be necessary, in the good faith judgment of the disclosing\nParty consistent with advice of counsel, for the disclosing Party not to be in violation of any applicable law, regulation or order, or (ii)\nwith\nthe prior written consent of the order Party, neither Part shall:\n(x) make any disclosure (and each Party shall direct its Representatives not to make any disclosure) to any person of (A) the\nfact that discussions, negotiations or investigations are taking or have taken place concerning a Transaction, (B) the existence or\ncontents of this Agreement, or the fact that either Party has requested or received Evaluation Material from the other Party, or (C) any\nof the terms, conditions or other facts with respect to any proposed Transaction, including the status of the discussions or negotiations\nrelated thereto, or\n(y) make any public statement concerning a proposed Transaction.\n(d)\nNotice If either Party proposes to make any disclosure in reliance on clause (i) above, the disclosing Party shall, to the extent\npracticable, provide the other Party with the text of the proposed disclosure as far in advance of its disclosure as is practicable and shall\nin\ngood faith consult with and consider the suggestions of the other Party concerning the nature and scope of the information it proposes\nto\ndisclose. Notwithstanding the foregoing, a Party may make such public announcement or public statement if in the opinion of such Party's\noutside counsel or General Counsel, such public announcement or public statement is necessary to avoid committing a violation of law or\nof\nany rule or regulation of any securities association, stock exchange or national securities quotation system on which such Party's securities\nare listed or trade. In such event, the disclosing Party shall use its reasonable best efforts to give advance notice to the other Party and to\nconsult with the other Party on the timing and content of any such public announcement or public statement.\n(e) Certain Securities Law Restrictions. Each Party acknowledges that the Evaluation Material may contain material nonpublic\ninformation concerning the Furnishing Party. Each Party\n2\nfurther acknowledges its awareness of the restrictions imposed by federal and state securities laws on persons in possession of material\nnonpublic\ninformation.\nNothing\nherein\nshall\nconstitute\nan\nadmission\nby\neither\nParty\nthat\nany\nEvaluation\nMaterial\nin\nfact\ncontains\nmaterial\nnonpublic information concerning the Furnishing Party.\n(f) Contact with Employees and Representatives. Neither Party shall communicate with any employee of the other Party regarding\nthe Transaction or disclose any Evaluation Material to any employee or Representative of the other Party, other than the employees and\nRepresentatives named on the working group lists provided by the Parties from time to time.\n(g) General. Notwithstanding any other provision of this Agreement, neither Party will be restricted from using the information\ncontained in the Evaluation Material that is retained in the minds of Representatives who have had access to the other Party's Evaluation\nMaterial, unless such use shall infringe on any of such Party's patent rights, trademark rights or copyright rights.\n4. Accuracy of Evaluation Material: No Representations or Warranties. Each Party acknowledges and agrees (a) that no representation\nor\nwarranty, express or implied, is made by either Party or any of its respective Representatives as to the accuracy or completeness of the Evaluation\nMaterial, and (b) that the Parties shall be entitled to rely only on those representations and warranties (if any) that may be made in a definitive\nwritten agreement for the Transaction, signed and delivered by both Parties, and then only to the extent, and subject to the limitations, provided\ntherein.\n5. No Solicitation.\n(a) For a period of one year subsequent to the termination of discussions regarding a Transaction, neither Party shall, without the prior\nwritten consent of the other Party, directly or indirectly solicit for hire any person currently employed by the other Party (or any of its\nsubsidiaries) with whom the hiring Party first has contact, or who first becomes known to the hiring Party. In the course of the Parties'\ndiscussions and due diligence with respect to the proposed Transaction; provided, however, that the foregoing provision shall not prevent\neither Party, without such consent, from employing any employee who (i) contacts the hiring Party directly at his or her own initiative\nwithout any direct or indirect solicitation by or encouragement from the hiring Party, (ii) responds to a mass media solicitation\nor\nadvertisement consistent with the hiring Party's past practices that is not directed at employees of the other Party or (iii) is identified by a\nthird party executive search firm or employment agency without any assistance from such Party.\n(b) For a period one year from the date of this Agreement, neither Party shall, without the prior written consent of the other Party or the\nother Party's board of directors, either directly or indirectly through any affiliate or Representative or otherwise: (i) acquire, offer to acquire,\nor agree to acquire, by purchase, tender offer, merger, consolidation, share exchange or otherwise, ownership or control of any voting\nsecurities, or any direct or indirect right to acquire any voting securities, of the other Party, any subsidiary thereof, or any successor\ncorporation thereto; (ii) make, or in any way participate in any "solicitation" of "proxies" (as such terms are used in the rules and regulations\nof the Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of, any\nvoting securities of the other Party; (iii) seek or propose to influence or control the management or policies of the other Party; (iv) make any\npublic announcement with respect to, or submit a proposal for, or offer of any merger, acquisition or other business combination or\nextraordinary transaction involving the other Party or any of its subsidiaries or any securities or assets of the other Party or any of its\nsubsidiaries; (v) form, join or in any way participate in a "group"( as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended)\nin\nconnection\nwith\nany\nof\nthe\nforegoing,\nor\n(vi)\nrequest\nthe\nother\nParty\nor\nany\nof\nthe\nother\nparty's\nRepresentatives\nto\namend\nor\nwaive any provision of this paragraph 5(b) in any manner which may reasonably be expected to compel or result in public disclosure;\nprovided that such limitations shall expire upon the public\n3\nannouncement of a third party tender offer for more than fifty percent of the outstanding voting securities of the other Party or a business\ncombination between the other Party and a third party. Each Party (the "Representing Party") represents and warrants to the other Party that\nas of the date of this Agreement the Representing Party does not directly or indirectly own or possess voting or dispositive control over any\nvoting securities of the other Party.\n6.\nReturn and Destruction of Evaluation Material. At any time after termination of discussions by either Party with respect to the\nTransaction,\nupon\nthe\nrequest\nof\nthe\nFurnishing\nParty,\nthe\nReceiving\nParty\nshall\npromptly\n(and\nin\nno\nevent\nlater\nthan\nfive\nbusiness\ndays\nafter\nsuch\nrequest) (a) redeliver or cause to be redelivered to the Furnishing Party all copies of all Primary Evaluation Material in the possession or control of\nthe Receiving Party or its Representatives which is in a visual or written format and erase or destroy all copies of all such Primary Evaluation\nMaterial which is stored in electronic format, and (b) destroy or cause to be destroyed all Derivative Evaluation Material in the possession or control\nof the Receiving Party or any of its Representatives Nothing herein shall obligate the Receiving Party to provide any Derivative Evaluation Material\nto the Furnishing Party. Notwithstanding the return, destruction or erasure of Evaluation Material hereunder, the Receiving Party and its\nRepresentatives shall continue to be bound by their confidentiality and other obligations hereunder.\n7. Remedies. Each Party agrees that money damages would not be a sufficient remedy for any breach of any provision of this Agreement by\nit or any of its Representatives, and that in addition to all other remedies which either Party may have, each Party shall be entitled to specific\nperformance and injunctive or other equitable relief as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive\nremedies for a breach of this Agreement but shall be in addition to all other remedies available at law or in equity. No failure or delay by either Party\nin exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any\nother or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event that either Party should institute proceedings\nto enforce any provision of this Agreement, the prevailing Party in such proceedings shall be entitled to recover all expenses relating to the\nenforcement of this Agreement, including reasonable attorneys' fees and costs, in addition to any other remedies.\n8. Miscellaneous.\n(a) No License. Neither Party grants a license, by implication or otherwise, under any of its trade secrets or other intellectual\nproperty rights to the Receiving Party. The terms of this Agreement shall not be construed to limit either Party's right to independently\ndevelop or acquire products without use of the other Party's Evaluation Material. The Furnishing Party acknowledges that the Receiving\nParty may currently or in the future develop information internally, or receive information from other parties, that is similar to the Evaluation\nMaterial. Accordingly, nothing in this Agreement will be construed as a representation or agreement that the Receiving Party will not\ndevelop or have developed for its products, concepts, systems, or techniques that are similar to or compete with the products, concepts,\nsystems or techniques contemplated by or embodied in the Evaluation Material, provided that the Receiving Party does not violate any of its\nobligations under this Agreement in connection with such development.\n(b) Entire Agreement. This Agreement contains the sole and entire agreement between the Parties with respect to the confidentiality\nof\nthe Evaluation Material and the confidentiality of their discussions, negotiations and investigations concerning a Transaction.\n(c) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly signed\nand delivered by or on behalf of both Parties.\n4\n(d)\nSeverability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or\nenforceability of any other provision of this Agreement unless the enforcement of such provision in such circumstances would be\ninequitable.\n(e) No Obligation to Complete a Transaction. It is expressly understood that this Agreement is not intended to, and does not,\nconstitute an agreement to consummate a Transaction, to conduct or continue negotiations with respect to a Transaction, or to enter into\na\ndefinitive agreement with respect to a Transaction, and neither Party shall have any rights or obligations of any kind whatsoever with respect\nto such a Transaction by virtue of this Agreement or by virtue of any other written or oral expression by the Parties' respective\nRepresentatives unless and until a definitive agreement with respect to a Transaction is executed and delivered by both Parties, other than for\nthe matters specifically agreed to herein. Both Parties further acknowledge and agree that each Party reserves the right, in its sole discretion,\nto\nprovide\nor\nnot\nto\nprovide\nEvaluation\nMaterial\nto\nthe\nReceiving\nParty\nunder\nthis\nAgreement,\nto\nreject\nany\nand\nall\nproposals\nmade\nby\nthe\nother Party or any of its Representatives with regard to a Transaction, and to terminate discussions and negotiations at any time. If either\nParty determines not to proceed with negotiations with respect to a Transaction, it will promptly inform the other Party of such\ndetermination.\n(f) Governing Law; Forum. This Agreement shall be governed by and construed in accordance with the internal laws of the State of\nGeorgia, without regard to the principles of the conflict of laws thereof. Each Party consents and submits to the exclusive jurisdiction of the\nfederal and state courts in the State of Georgia, and the city of Atlanta, for the adjudication of any action, suit, or proceeding arising out of or\notherwise relating to this Agreement.\n[Signatures on following page]\n5\nThe Parties have executed this Agreement as of the date first written above.\nEarthLink, Inc.\nPeoplePC, Inc.\nBy:\n/s/ BRINTON O.C. YOUNG\nBy:\n/s/ CHARLES ORTMEYER\nName:\nBrinton O.C. Young\nName:\nCharles Ortmeyer\nTitle:\nEVP of Strategic Planning\nTitle:\nSVP and General Counsel\n6\nQuickLinks\nMUTUAL NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT	EX-99.(E)(13) 10 a2082556zex-99_e13.htm EXHIBIT 99(E)(13)\nQuickLinks -- Click here to rapidly navigate through this document\nExhibit (e)(13)\nMUTUAL NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT\nThis Mutual Non-Disclosure and Non-Solicitation Agreement (this "Agreement"), is made as of September 17, 2001 between EarthLink, Inc. a\nDelaware corporation ("EarthLink"), and PeoplePC, Inc., a Delaware corporation ("PeoplePC"). EarthLink and PeoplePC are sometimes referred to\nherein individually as a "Party" and collectively as the "Parties."\n1. Purpose. EarthLink and PeoplePC wish to have discussions relating to a potential transaction (the "Transaction") between EarthLink\n(and/or its subsidiaries and stockholders) and PeoplePC (and/or its subsidiaries and stockholders). In the course of such discussions, each Party\nexpects to make available to the other Party and its Representatives (as defined herein) Evaluation Material (as defined herein) concerning the\nbusinesses, financial condition, operations, assets, properties, liabilities, and prospects of such Party. As a condition to making such information\navailable, each Party is entering this Agreement and agrees that all Evaluation Material received by it or its Representatives from the other Party or\nany of its Representatives shall be treated in accordance with this Agreement.\n2. Certain Definitions. As used in this Agreement: (i) the term "Receiving Party" means the Party receiving Evaluation Material; (ii) the\nterm "Furnishing Party" means the Party providing Evaluation Material or causing Evaluation Material to be provided; (iii) the term\n"Representatives" means the directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, investment\nbankers, financial advisors and other consultants and advisors engaged in connection with the review and evaluation of the Transaction) of the\nspecified Party; and (iv) the term "Evaluation Material" means all proprietary and confidential information concerning the Furnishing Party or any\nof its subsidiaries or affiliates, whether in verbal, visual, written, electronic or other form, which is made available by the Furnishing Party or any of\nits Representatives to the Receiving Party or any of its Representatives ("Primary Evaluation Material"), together, in each case, with all notes,\nmemoranda, summaries, analyses, studies, compilations and other writings relating thereto or based in whole or in part thereon prepared by the\nReceiving Party or any of its Representatives ("Derivative Evaluation Material"). Notwithstanding the foregoing, the term "Evaluation Material"\nshall not include, and the Parties' obligations herein (other than their obligations under paragraph 6 of this Agreement) shall not extend to\ninformation which (a) was rightfully in the possession of the Receiving Party prior to disclosure by the Furnishing Party; (b) was or is independently\ndeveloped by the Receiving Party without use of the Evaluation Material; (c) is now or hereafter becomes available to the public other than as a\nresult of disclosure by the Receiving Party or any of the Receiving Party's Representatives in violation of this Agreement; (d) becomes available to\nthe Receiving Party or any of its Representatives on a non-confidential basis from a source other than the Furnishing Party or any of its\nRepresentatives and such source is not, to the knowledge of the Receiving Party following reasonable inquiry, under any obligation to the Furnishing\nParty or any of its Representatives (whether contractual, legal or fiduciary) to keep such information confidential; or (e) is transmitted by or on\nbehalf of the Furnishing Party after receiving written notification from the Receiving Party of the termination of discussions relating to the\nTransaction or written instructions from the Receiving Party not to furnish any further Evaluation Material.\n3. Confidentiality and Use of Evaluation Material.\n(a) Confidentiality of Evaluation Material. All Evaluation Material (i) shall be used solely for the purpose of evaluating and\nconsidering the Transaction; (ii) shall be kept strictly confidential by the Receiving Party; and (iii) shall be provided by the Receiving Party\nsolely to those of its Representatives to whom disclosure is reasonably required to facilitate the Receiving Party's evaluation or consideration\nof the Transaction, it being the intention of the Parties to restrict the dissemination of Evaluation Material to as small a working group as\npracticable. The Parties agree that all Evaluation Material is and shall remain the property of the Furnishing Party. Before providing access to\nEvaluation Material to any Representative, the Receiving Party shall inform such Representative of the confidentiality of the Evaluation\nMaterial, and shall advise such\nRepresentative that, by accepting possession of or access to such information, such Representative is agreeing to be bound by this\nAgreement. Each Party shall be responsible for any breach of this Agreement by any of its Representatives.\n(b) Compulsory Disclosure of Evaluation Material. If the Receiving Party or its Representatives are requested or required in any\njudicial, arbitral or administrative proceeding or by any governmental or regulatory authority to disclose any Evaluation Material (whether by\ndeposition, interrogatory, request for documents, subpoena, civil investigative demand, or otherwise), or the Receiving Party is so requested\nor required to disclose any of the facts disclosure of which is prohibited under paragraph (3)(e) of this Agreement, the Receiving Party shall\ngive the Furnishing Party prompt notice of such request so that the Furnishing Party may seek an appropriate protective order or other\nappropriate remedy and/or waive compliance with the provisions of this Agreement, and, upon the Furnishing Party's request and at the\nFurnishing Party's expense, shall reasonably cooperate with the Furnishing Party in seeking such an order. If, in the absence of a protective\norder or other remedy or the receipt of a waiver by the Furnishing Party, the Receiving Party is nontheless, in the opinion of the Receiving\nParty's or (in the case of disclosure requested or required of a Representative, such Representative's) outside counsel or General Counsel,\nlegally compelled to disclose Evaluation Material, the Receiving Party shall disclose only that portion of the Evaluation Material which the\nReceiving Party is legally required to disclose and upon the Furnishing Party's request and at the Furnishing Party's expense, shall use all\nrequisite reasonable efforts to obtain assurances that confidential treatment will be accorded to such Evaluation Material to the extent such\nassurances are available. Subject to the foregoing conditions and limitations, the Receiving Party may disclose Evaluation Material under the\ncircumstances set forth in this paragraph (b) without liability hereunder.\n(c) Other Public Disclosure. Except (i) for such public disclosure as may be necessary, in the good faith judgment of the disclosing\nParty consistent with advice of counsel, for the disclosing Party not to be in violation of any applicable law, regulation or order, or (ii) with\nthe prior written consent of the order Party, neither Part shall:\n(x) make any disclosure (and each Party shall direct its Representatives not to make any disclosure) to any person of (A) the\nfact that discussions, negotiations or investigations are taking or have taken place concerning a Transaction, (B) the existence or\ncontents of this Agreement, or the fact that either Party has requested or received Evaluation Material from the other Party, or (C) any\nof the terms, conditions or other facts with respect to any proposed Transaction, including the status of the discussions or negotiations\nrelated thereto, or\n(y) make any public statement concerning a proposed Transaction.\n(d) Notice If either Party proposes to make any disclosure in reliance on clause (i) above, the disclosing Party shall, to the extent\npracticable, provide the other Party with the text of the proposed disclosure as far in advance of its disclosure as is practicable and shall in\ngood faith consult with and consider the suggestions of the other Party concerning the nature and scope of the information it proposes to\ndisclose. Notwithstanding the foregoing, a Party may make such public announcement or public statement if in the opinion of such Party's\noutside counsel or General Counsel, such public announcement or public statement is necessary to avoid committing a violation of law or of\nany rule or regulation of any securities association, stock exchange or national securities quotation system on which such Party's securities\nare listed or trade. In such event, the disclosing Party shall use its reasonable best efforts to give advance notice to the other Party and to\nconsult with the other Party on the timing and content of any such public announcement or public statement.\n(e) Certain Securities Law Restrictions. Each Party acknowledges that the Evaluation Material may contain material nonpublic\ninformation concerning the Furnishing Party. Each Party\n2\nfurther acknowledges its awareness of the restrictions imposed by federal and state securities laws on persons in possession of material\nnonpublic information. Nothing herein shall constitute an admission by either Party that any Evaluation Material in fact contains material\nnonpublic information concerning the Furnishing Party.\n(f) Contact with Employees and Representatives. Neither Party shall communicate with any employee of the other Party regarding\nthe Transaction or disclose any Evaluation Material to any employee or Representative of the other Party, other than the employees and\nRepresentatives named on the working group lists provided by the Parties from time to time.\n(g) General. Notwithstanding any other provision of this Agreement, neither Party will be restricted from using the information\ncontained in the Evaluation Material that is retained in the minds of Representatives who have had access to the other Party's Evaluation\nMaterial, unless such use shall infringe on any of such Party's patent rights, trademark rights or copyright rights.\n4. Accuracy of Evaluation Material: No Representations or Warranties. Each Party acknowledges and agrees (a) that no representation or\nwarranty, express or implied, is made by either Party or any of its respective Representatives as to the accuracy or completeness of the Evaluation\nMaterial, and (b) that the Parties shall be entitled to rely only on those representations and warranties (if any) that may be made in a definitive\nwritten agreement for the Transaction, signed and delivered by both Parties, and then only to the extent, and subject to the limitations, provided\ntherein.\n5. No Solicitation.\n(a) For a period of one year subsequent to the termination of discussions regarding a Transaction, neither Party shall, without the prior\nwritten consent of the other Party, directly or indirectly solicit for hire any person currently employed by the other Party (or any of its\nsubsidiaries) with whom the hiring Party first has contact, or who first becomes known to the hiring Party. In the course of the Parties'\ndiscussions and due diligence with respect to the proposed Transaction; provided, however, that the foregoing provision shall not prevent\neither Party, without such consent, from employing any employee who (i) contacts the hiring Party directly at his or her own initiative\nwithout any direct or indirect solicitation by or encouragement from the hiring Party, (ii) responds to a mass media solicitation or\nadvertisement consistent with the hiring Party's past practices that is not directed at employees of the other Party or (iii) is identified by a\nthird party executive search firm or employment agency without any assistance from such Party.\n(b) For a period one year from the date of this Agreement, neither Party shall, without the prior written consent of the other Party or the\nother Party's board of directors, either directly or indirectly through any affiliate or Representative or otherwise: (i) acquire, offer to acquire,\nor agree to acquire, by purchase, tender offer, merger, consolidation, share exchange or otherwise, ownership or control of any voting\nsecurities, or any direct or indirect right to acquire any voting securities, of the other Party, any subsidiary thereof, or any successor\ncorporation thereto; (ii) make, or in any way participate in any "solicitation" of "proxies" (as such terms are used in the rules and regulations\nof the Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of, any\nvoting securities of the other Party; (iii) seek or propose to influence or control the management or policies of the other Party; (iv) make any\npublic announcement with respect to, or submit a proposal for, or offer of any merger, acquisition or other business combination or\nextraordinary transaction involving the other Party or any of its subsidiaries or any securities or assets of the other Party or any of its\nsubsidiaries; (v) form, join or in any way participate in a "group"( as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended) in connection with any of the foregoing, or (vi) request the other Party or any of the other party's Representatives to amend or\nwaive any provision of this paragraph 5(b) in any manner which may reasonably be expected to compel or result in public disclosure;\nprovided that such limitations shall expire upon the public\n3\nannouncement of a third party tender offer for more than fifty percent of the outstanding voting securities of the other Party or a business\ncombination between the other Party and a third party. Each Party (the "Representing Party") represents and warrants to the other Party that\nas of the date of this Agreement the Representing Party does not directly or indirectly own or possess voting or dispositive control over any\nvoting securities of the other Party.\n6. Return and Destruction of Evaluation Material. At any time after termination of discussions by either Party with respect to the\nTransaction, upon the request of the Furnishing Party, the Receiving Party shall promptly (and in no event later than five business days after such\nrequest) (a) redeliver or cause to be redelivered to the Furnishing Party all copies of all Primary Evaluation Material in the possession or control of\nthe Receiving Party or its Representatives which is in a visual or written format and erase or destroy all copies of all such Primary Evaluation\nMaterial which is stored in electronic format, and (b) destroy or cause to be destroyed all Derivative Evaluation Material in the possession or control\nof the Receiving Party or any of its Representatives. Nothing herein shall obligate the Receiving Party to provide any Derivative Evaluation Material\nto the Furnishing Party. Notwithstanding the return, destruction or erasure of Evaluation Material hereunder, the Receiving Party and its\nRepresentatives shall continue to be bound by their confidentiality and other obligations hereunder.\n7. Remedies. Each Party agrees that money damages would not be a sufficient remedy for any breach of any provision of this Agreement by\nit or any of its Representatives, and that in addition to all other remedies which either Party may have, each Party shall be entitled to specific\nperformance and injunctive or other equitable relief as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive\nremedies for a breach of this Agreement but shall be in addition to all other remedies available at law or in equity. No failure or delay by either Party\nin exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any\nother or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event that either Party should institute proceedings\nto enforce any provision of this Agreement, the prevailing Party in such proceedings shall be entitled to recover all expenses relating to the\nenforcement of this Agreement, including reasonable attorneys' fees and costs, in addition to any other remedies.\n8. Miscellaneous.\n(a) No License. Neither Party grants a license, by implication or otherwise, under any of its trade secrets or other intellectual\nproperty rights to the Receiving Party. The terms of this Agreement shall not be construed to limit either Party's right to independently\ndevelop or acquire products without use of the other Party's Evaluation Material. The Furnishing Party acknowledges that the Receiving\nParty may currently or in the future develop information internally, or receive information from other parties, that is similar to the Evaluation\nMaterial. Accordingly, nothing in this Agreement will be construed as a representation or agreement that the Receiving Party will not\ndevelop or have developed for its products, concepts, systems, or techniques that are similar to or compete with the products, concepts,\nsystems or techniques contemplated by or embodied in the Evaluation Material, provided that the Receiving Party does not violate any of its\nobligations under this Agreement in connection with such development.\n(b) Entire Agreement. This Agreement contains the sole and entire agreement between the Parties with respect to the confidentiality\nof the Evaluation Material and the confidentiality of their discussions, negotiations and investigations concerning a Transaction.\n(c) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly signed\nand delivered by or on behalf of both Parties.\n4\n(d) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or\nenforceability of any other provision of this Agreement unless the enforcement of such provision in such circumstances would be\ninequitable.\n(e) No Obligation to Complete a Transaction. It is expressly understood that this Agreement is not intended to, and does not,\nconstitute an agreement to consummate a Transaction, to conduct or continue negotiations with respect to a Transaction, or to enter into a\ndefinitive agreement with respect to a Transaction, and neither Party shall have any rights or obligations of any kind whatsoever with respect\nto such a Transaction by virtue of this Agreement or by virtue of any other written or oral expression by the Parties' respective\nRepresentatives unless and until a definitive agreement with respect to a Transaction is executed and delivered by both Parties, other than for\nthe matters specifically agreed to herein. Both Parties further acknowledge and agree that each Party reserves the right, in its sole discretion,\nto provide or not to provide Evaluation Material to the Receiving Party under this Agreement, to reject any and all proposals made by the\nother Party or any of its Representatives with regard to a Transaction, and to terminate discussions and negotiations at any time. If either\nParty determines not to proceed with negotiations with respect to a Transaction, it will promptly inform the other Party of such\ndetermination.\n(f) Governing Law; Forum. This Agreement shall be governed by and construed in accordance with the internal laws of the State of\nGeorgia, without regard to the principles of the conflict of laws thereof. Each Party consents and submits to the exclusive jurisdiction of the\nfederal and state courts in the State of Georgia, and the city of Atlanta, for the adjudication of any action, suit, or proceeding arising out of or\notherwise relating to this Agreement.\n[Signatures on following page]\n5\nThe Parties have executed this Agreement as of the date first written above.\nEarthLink, Inc.\nPeoplePC, Inc.\nBy:\n/s/ BRINTON O.C. YOUNG\nBy:\n/s/ CHARLES ORTMEYER\nName:\nBrinton O.C. Young\nName:\nCharles Ortmeyer\nTitle:\nEVP of Strategic Planning\nTitle:\nSVP and General Counsel\n6\nQuickLinks\nMUTUAL NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT
+5f3d048c41eb52fa17ad94786ccdd6c8.pdf	effective_date jurisdiction party term	EX-99.(E)(2) 2 dex99e2.htm NON-DISCLOSURE AGREEMENT, DATED AS OF FEBRUARY 25, 2011\nExhibit (e)(2)\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (the “ Agreement”), dated as of this 25 day of February, 2011, is by and between Arch Coal, Inc., a Delaware\ncorporation (“Arch”), and International Coal Group, Inc., a Delaware corporation (“ICG”).\nRecitals\nA. The parties desire to enter into discussions concerning a potential negotiated transaction (a “Transaction”), which discussions may involve\nthe disclosure by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) of certain confidential or proprietary information\nrelating .to the Disclosing Party or the Transaction.\nB. The parties desire to set forth their respective rights and obligations with respect to the use, dissemination and protection of such\nconfidential or proprietary information.\nAgreements\nNOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements set forth herein and for other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:\n1. Confidential Information.\na. All information, including without limitation all oral, written and electronic information, whether obtained prior to or subsequent to\nthe date of this Agreement, concerning the Disclosing Party or its affiliates that has been or may be furnished to the Receiving Party by or on behalf\nof the Disclosing Party or any of its Representatives (as defined below), and all analysis, compilations, forecasts, studies, notes, other materials and\nportions thereof prepared by the Receiving Party or any of its Representatives, or otherwise on its behalf, that contain, reflect or are based, in whole\nor in part, on such information shall be deemed “Confidential Information.”\nb. “Confidential Information” shall not include information that:\ni. is already known to the Receiving Party at the time of disclosure, but only to the extent that, to the knowledge of Receiving Party,\nsuch information is not subject to a duty of confidentiality to the Disclosing Party or any other person;\nii. was in the public domain at the time of disclosure or thereafter enters into the public domain through no breach of this\nAgreement by the Receiving Party or any of its Representatives;\niii. becomes known to the Receiving Party from a source other than the Disclosing Party or Disclosing Party’s Representatives,\nwhich source, to the knowledge of Receiving Party, has no duty of confidentiality to Disclosing Party or any other person with respect to the\ninformation; or\niv. is independently developed by the Receiving Party without reference to, reliance on or access to any of the Disclosing Party’s\nConfidential Information.\nth\nc. As used herein, “Representatives” shall mean, as to any person, such person’s affiliates and its and their respective directors, officers,\nemployees, agents, and advisors (including, without limitation, financial and legal advisors, consultants and accountants).\n2. Use, Dissemination and Protection of Confidential Information.\na. In consideration of the disclosure of Confidential Information hereunder, each party shall keep in confidence the other party’s\nConfidential Information for a period of two years from the date of this Agreement. In furtherance of the foregoing, each party shall use the\nConfidential Information only for the purposes of assessing, negotiating and documenting Transaction and not for any other purpose. The Receiving\nParty shall exercise the same degree of care with respect to the Disclosing Party’s Confidential Information as the Receiving Party normally takes to\nsafeguard and preserve its own proprietary information, provided that in no event shall the degree of care be less than a reasonable degree of care.\nUpon discovery of any prohibited use or disclosure by either the Receiving Party, any of its Representatives or otherwise, the Receiving Party shall\nimmediately notify the Disclosing Party in writing and shall make its best efforts to prevent any further prohibited use or disclosure; however, such\nremedial action shall in no manner relieve Receiving Party’s obligations or liabilities for breach hereunder.\nb. Neither party may disclose the other party’s Confidential Information to any third party without the Disclosing Party’s prior written\nconsent, provided, that each party may disclose Confidential Information to its Representatives who need to know such Confidential Information for\nthe purpose of evaluating a Transaction on the Receiving Party’s behalf if prior to providing such Representatives with such Confidential\nInformation the Receiving Party advises the Representatives of the confidential nature of the information so provided and of the terms of this\nAgreement, and such Representatives agree to maintain such Confidential Information in accordance with the terms of this Agreement and to\notherwise observe the terms and conditions of this Agreement. The Receiving Party acknowledges that it will be responsible for any breach of this\nAgreement by its Representatives.\nc. In furtherance of this Agreement, without the prior written consent of the other party and except as otherwise provided herein, neither\nparty nor any of its Representatives may disclose to any person (i) that Confidential Information has been requested by or furnished or made\navailable to the Receiving Party or its Representatives, (ii) the fact that this Agreement exists, (iii) that either Arch or ICG is considering a\nTransaction, (iv) that investigations, discussions or negotiations are taking place concerning a Transaction or (v) any of the terms, conditions or other\nfacts or information with respect to a Transaction or any other potential transaction involving Arch and ICG, including without limitation, the status\nor termination of this Agreement or any opinion or view with respect to the other party or the Confidential Information.\nd. In the event that either party determines not to proceed with a Transaction or at any time upon demand by the Disclosing Party, an\nauthorized officer of the Receiving Party shall promptly, at the election of the Receiving Party, either return to the Disclosing Party or destroy,\nincluding without limitation permanently deleting such Confidential Information from all computer records, all Confidential Information in the\nReceiving Party’s possession or the possession of its Representatives which relates to the Transaction or such other business objective and shall\ncertify to the Disclosing Party as to such return or destruction. Notwithstanding the foregoing, (a) the Receiving Party shall be entitled to retain any\ncopies, extracts or other reproductions of the Confidential Information, in whole or in part, (i) to the extent necessary in order to comply with\napplicable legal and regulatory recordkeeping requirements or (ii) Confidential Information contained in materials submitted to the Receiving Party’s\nBoard of Directors in accordance with the customary recordkeeping policies of the Receiving Party, and (b) the Receiving Party’s legal, accounting\nand tax Representatives may retain documents or records that contain or refer to Confidential Information for the sole purpose of, and only to the\nextent required for,\n2\ncompliance with any relevant professional standards, codes or insurance policies applicable to the particular Representative. Notwithstanding the\nreturn or destruction of Confidential Information, the Receiving Party will continue to be bound by the non-disclosure obligations contained in this\nAgreement.\n3. Disclosures Required by Law. In the event that the Receiving Party or any of its Representatives are required by applicable law, regulation\nor legal or judicial process, including without limitation by deposition, interrogatory, request for documents, subpoena, civil investigative demand or\nsimilar process, to disclose any Confidential Information, the Receiving Party will provide the Disclosing Party with prompt written notice of such\nrequirement in order to enable the Disclosing Party to seek an appropriate protective order or other remedy, and the Receiving Party will consult and\ncooperate with the Disclosing Party to the extent permitted by law with respect to taking steps to resist or narrow the scope of such requirement or\nlegal process. If a protective order or other remedy is not obtained, the terms of this letter agreement are not waived by the Disclosing Party and\ndisclosure of Confidential Information is legally required, the Receiving Party or such of its Representatives will (a) disclose such information only\nto the extent required in the opinion of the Receiving Party’s counsel and (b) give notice to the Disclosing Party of the information to be disclosed as\nfar in advance as is practicable. In any such event, the Receiving Party and its Representatives will use reasonable efforts to ensure that all\nConfidential Information that is so disclosed will be accorded confidential treatment.\n4. Material. Non-Public Information. The Receiving Party acknowledges that in its and its Representatives’ examination of the Confidential\nInformation the Receiving Party and its Representatives will have access to material, non-public information, and that the Receiving Party is aware,\nand will advise its Representatives who are informed as to the matters that are the subject of this Agreement, that state and federal laws, including\nwithout limitation United States securities laws, impose restrictions on the dissemination of such information and trading in securities when in\npossession of such information.\n5. Disclaimer. SUBJECT TO THE LAST SENTENCE OF THIS SECTION 5, THE PARTIES HEREBY DISCLAIM ALL WARRANTIES,\nWHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY AND ALL OF ITS CONFIDENTIAL INFORMATION, AND EACH PARTY\nAGREES THAT NEITHER THE DISCLOSING PARTY NOR ITS REPRESENTATIVES OR ANY OTHER PERSON MAKES ANY\nREPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF THE\nCONFIDENTIAL INFORMATION, INCLUDING, WITHOUT LIMITATION, ANY FORECASTS, PROJECTIONS OR OTHER FORWARD-\nLOOKING INFORMATION INCLUDED THEREIN, AND THAT NEITHER THE DISCLOSING PARTY NOR ITS REPRESENTATIVES OR\nANY OTHER PERSON SHALL ASSUME ANY RESPONSIBILITY OR HAVE ANY LIABILITY TO THE RECEIVING PARTY OR ANY OF\nITS REPRESENTATIVES RESULTING FROM THE SELECTION OR USE OF THE CONFIDENTIAL INFORMATION BY THE RECEIVING\nPARTY OR ITS REPRESENTATIVES. THE RECEIVING PARTY ACKNOWLEDGES THAT IT IS NOT ENTITLED TO RELY ON THE\nACCURACY OR COMPLETENESS OF ANY CONFIDENTIAL INFORMATION AND THAT ONLY SUCH EXPRESS REPRESENTATIONS\nAND WARRANTIES REGARDING CONFIDENTIAL INFORMATION AS MAY BE MADE TO THE RECEIVING PARTY IN A DEFINITIVE\nWRITTEN AGREEMENT RELATING TO A TRANSACTION, IF ANY, SHALL HAVE ANY LEGAL EFFECT, SUBJECT TO THE TERMS\nAND CONDITIONS OF SUCH AGREEMENT. NOTWITHSTANDING THE FOREGOING, THE DISCLOSING PARTY HEREBY\nREPRESENTS AND WARRANTS THAT IT HAS THE AUTHORITY TO DISCLOSE THE CONFIDENTIAL INFORMATION.\n6. Term. This Agreement shall commence as of the date hereof and shall remain in effect for two years. Any obligations imposed on the parties\nby this Agreement that should by their terms survive the termination of this Agreement shall so survive.\n3\n7. Miscellaneous.\na. Each party acknowledges and agrees that no contract or agreement providing for a Transaction shall be deemed to exist, directly or\nindirectly, between the parties and their respective affiliates unless and until a definitive written agreement with respect to a Transaction has been\nexecuted and delivered by Arch and ICG. Each party also agrees that unless and until a definitive written agreement with respect to a Transaction has\nbeen executed and delivered by Arch and ICG, neither party, nor any affiliate thereof, will be under any legal obligation of any kind whatsoever with\nrespect to such a Transaction by virtue of this Agreement, except for the matters specifically provided herein, or otherwise or by virtue of any written\nor oral expression with respect to such a Transaction by either party’s Representatives. Nothing contained in this Agreement nor the furnishing of\nany Confidential Information hereunder shall be construed as granting or conferring any rights by license or otherwise in any intellectual property.\nEach patty further acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made with\nrespect to a Transaction, to terminate discussions and negotiations at any time, and to conduct any process for a Transaction as it shall, in its sole\ndiscretion, determine, including, without limitation, negotiating with any other interested party and entering into a definitive agreement without prior\nnotice to the other party or any other person.\nb. The Receiving Party shall not, nor shall it permit or assist any of its Representatives to, alter or remove any confidentiality label,\nproprietary label, patent marking, copyright notice or other legend placed on Confidential Information, and shall maintain and place any such notices\nor legends on applicable Confidential Information or copies thereof as directed by the Disclosing Party. The rights and obligations set forth in this\nAgreement shall take precedence over any inconsistent specific legend contained on, or any statements made in connection with the disclosure of,\nany Confidential Information.\nc. The parties acknowledge that, due to the unique nature of the Confidential Information, the Disclosing Party’s remedies at law arc\ninadequate and that the Disclosing Party will suffer irreparable harm in the event of breach or threatened breach of any provision of this Agreement.\nAccordingly, in such event, the Disclosing Party shall be entitled to seek injunctive relief without a requirement to post bond, as well as any and all\nother applicable remedies at law or in equity. The party that has breached or threatened to breach this Agreement will not raise the defense of an\nadequate remedy at law.\nd. This Agreement may be amended and any of its terms and conditions may be waived only by a written agreement signed by both\nparties. No provisions regarding the obligations of the parties with respect to Confidential Information set forth in any subsequent or\ncontemporaneous agreement between the parties will take precedence over this Agreement unless (i) such provisions are specific to a particular\nbusiness objective or other arrangement between the parties and (ii) either (A) such provisions are more stringent than those contained herein or\n(B) the subsequent agreement specifically refers to this Agreement and waives or amends the applicable provisions hereof.\ne. The failure of either party at any time or times to require performance of any provision of this Agreement shall in no manner affect its\nrights at a later time to enforce the same. No waiver by either party of any condition or term shall be deemed to be a continuing waiver of such\ncondition or term or any other condition or term.\nf. This Agreement shall be binding upon and inure to the benefit of the heirs, successors and permitted assigns of the parties. Neither this\nAgreement nor the obligations of either party hereunder shall be assignable or transferable by such party without the prior written consent of the\nother\n4\nparty. Any attempted assignment of this Agreement without such consent shall be null and void and shall have no effect.\ng. If any provision of this Agreement shall, for any reason, be adjudged by any court of competent jurisdiction to be invalid or\nunenforceable, such judgment shall not affect, impair or invalidate the remainder of this Agreement but shall be confined in its operation to the\nprovision of this Agreement directly involved in the controversy in which such judgment shall have been rendered.\nh. Any notice required to be given hereunder shall be in writing, sent to the corporate headquarters of the parties and made to the\nattention of the persons executing this Agreement. Such notice shall be deemed duly delivered on the date of hand-delivery or one day after deposit\nwith an overnight courier with tracking capabilities, or five days after deposit in first class U.S . mail, postage prepaid, return receipt requested.\ni. This Agreement shall be governed by and construed in accordance with the law of the State of Delaware, without regard to its conflicts\nof law principles.\nj. No press release, advertisement, marketing materials or other releases for public consumption concerning or otherwise referring to the\nterms, conditions or existence of this Agreement shall be published by either party. Neither party shall promote or otherwise disclose the existence of\nthe relationship between the parties evidenced by this Agreement or any other agreement between the parties for purposes of soliciting or procuring\nsales, clients, investors, financing or other business engagements.\nk. All contacts or inquiries by Arch to ICG, including requests or scheduling of site visits and due diligence visits, shall be made through\nBen Hatfield, CEO of ICG, or Roger Nicholson, General Counsel of ICG, or those individuals expressly designated by either in writing.\nI. This Agreement constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof. All prior\nagreements, understandings and proposals, oral or written, between the parties with respect to the subject matter hereof are superseded by this\nAgreement.\nm. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which, when\ntaken together, shall constitute one and the same instrument. Electronic transmissions of executed copies of this Agreement shall be as effective as\nthe delivery of originally executed copies of this Agreement.\n[The remainder of this page has been left blank intentionally.]\n5\nIN WITNESS WHEREOF, this Non-Disclosure Agreement has been executed by the undersigned as of the day and year first above written.\nArch Coal, Inc.\nBy: /s/ Robert G. Jones\nName: Robert G. Jones\nTitle: Senior Vice President — Law, General\nCounsel & Secretary\nInternational Coal Group, Inc.\nBy: /s/ Roger L. Nicholson\nName: Roger L. Nicholson\nTitle: Senior Vice President, Secretary and General\nCounsel\n6	EX-99.(E)(2) 2 dex99e2.htm NON-DISCLOSURE AGREEMENT, DATED AS OF FEBRUARY 25, 2011\nExhibit ()(2)\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (the “ Agreement”), dated as of this 25 day of February, 2011, is by and between Arch Coal, Inc., a Delaware\ncorporation (“Arch”), and International Coal Group, Inc., a Delaware corporation (“ICG”).\nRecitals\nA. The parties desire to enter into discussions concerning a potential negotiated transaction (a “Transaction”), which discussions may involve\nthe disclosure by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) of certain confidential or proprietary information\nrelating .to the Disclosing Party or the Transaction.\nB. The parties desire to set forth their respective rights and obligations with respect to the use, dissemination and protection of such\nconfidential or proprietary information.\nAgreements\nNOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements set forth herein and for other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:\n1. Confidential Information.\na. All information, including without limitation all oral, written and electronic information, whether obtained prior to or subsequent to\nthe date of this Agreement, concerning the Disclosing Party or its affiliates that has been or may be furnished to the Receiving Party by or on behalf\nof the Disclosing Party or any of its Representatives (as defined below), and all analysis, compilations, forecasts, studies, notes, other materials and\nportions thereof prepared by the Receiving Party or any of its Representatives, or otherwise on its behalf, that contain, reflect or are based, in whole\nor in part, on such information shall be deemed “Confidential Information.”\nb. “Confidential Information” shall not include information that:\ni. is already known to the Receiving Party at the time of disclosure, but only to the extent that, to the knowledge of Receiving Party,\nsuch information is not subject to a duty of confidentiality to the Disclosing Party or any other person;\nii. was in the public domain at the time of disclosure or thereafter enters into the public domain through no breach of this\nAgreement by the Receiving Party or any of its Representatives;\niii. becomes known to the Receiving Party from a source other than the Disclosing Party or Disclosing Party’s Representatives,\nwhich source, to the knowledge of Receiving Party, has no duty of confidentiality to Disclosing Party or any other person with respect to the\ninformation; or\niv. is independently developed by the Receiving Party without reference to, reliance on or access to any of the Disclosing Party’s\nConfidential Information.\nc. As used herein, “Representatives” shall mean, as to any person, such person’s affiliates and its and their respective directors, officers,\nemployees, agents, and advisors (including, without limitation, financial and legal advisors, consultants and accountants).\n2. Use, Dissemination and Protection of Confidential Information.\na. In consideration of the disclosure of Confidential Information hereunder, each party shall keep in confidence the other party’s\nConfidential Information for a period of two years from the date of this Agreement. In furtherance of the foregoing, each party shall use the\nConfidential Information only for the purposes of assessing, negotiating and documenting Transaction and not for any other purpose. The Receiving\nParty shall exercise the same degree of care with respect to the Disclosing Party’s Confidential Information as the Receiving Party normally takes to\nsafeguard and preserve its own proprietary information, provided that in no event shall the degree of care be less than a reasonable degree of care.\nUpon discovery of any prohibited use or disclosure by either the Receiving Party, any of its Representatives or otherwise, the Receiving Party shall\nimmediately notify the Disclosing Party in writing and shall make its best efforts to prevent any further prohibited use or disclosure; however, such\nremedial action shall in no manner relieve Receiving Party’s obligations or liabilities for breach hereunder.\nb. Neither party may disclose the other party’s Confidential Information to any third party without the Disclosing Party’s prior written\nconsent, provided, that each party may disclose Confidential Information to its Representatives who need to know such Confidential Information for\nthe purpose of evaluating a Transaction on the Receiving Party’s behalf if prior to providing such Representatives with such Confidential\nInformation the Receiving Party advises the Representatives of the confidential nature of the information so provided and of the terms of this\nAgreement, and such Representatives agree to maintain such Confidential Information in accordance with the terms of this Agreement and to\notherwise observe the terms and conditions of this Agreement. The Receiving Party acknowledges that it will be responsible for any breach of this\nAgreement by its Representatives.\nc. In furtherance of this Agreement, without the prior written consent of the other party and except as otherwise provided herein, neither\nparty nor any of its Representatives may disclose to any person (i) that Confidential Information has been requested by or furnished or made\navailable to the Receiving Party or its Representatives, (ii) the fact that this Agreement exists, (iii) that either Arch or ICG is considering a\nTransaction, (iv) that investigations, discussions or negotiations are taking place concerning a Transaction or (v) any of the terms, conditions or other\nfacts or information with respect to a Transaction or any other potential transaction involving Arch and ICG, including without limitation, the status\nor termination of this Agreement or any opinion or view with respect to the other party or the Confidential Information.\nd. In the event that either party determines not to proceed with a Transaction or at any time upon demand by the Disclosing Party, an\nauthorized officer of the Receiving Party shall promptly, at the election of the Receiving Party, either return to the Disclosing Party or destroy,\nincluding without limitation permanently deleting such Confidential Information from all computer records, all Confidential Information in the\nReceiving Party’s possession or the possession of its Representatives which relates to the Transaction or such other business objective and shall\ncertify to the Disclosing Party as to such return or destruction. Notwithstanding the foregoing, (a) the Receiving Party shall be entitled to retain any\ncopies, extracts or other reproductions of the Confidential Information, in whole or in part, (i) to the extent necessary in order to comply with\napplicable legal and regulatory recordkeeping requirements or (ii) Confidential Information contained in materials submitted to the Receiving Party’s\nBoard of Directors in accordance with the customary recordkeeping policies of the Receiving Party, and (b) the Receiving Party’s legal, accounting\nand tax Representatives may retain documents or records that contain or refer to Confidential Information for the sole purpose of, and only to the\nextent required for,\ncompliance with any relevant professional standards, codes or insurance policies applicable to the particular Representative. Notwithstanding the\nreturn or destruction of Confidential Information, the Receiving Party will continue to be bound by the non-disclosure obligations contained in this\nAgreement.\n3. Disclosures Required by Law. In the event that the Receiving Party or any of its Representatives are required by applicable law, regulation\nor legal or judicial process, including without limitation by deposition, interrogatory, request for documents, subpoena, civil investigative demand or\nsimilar process, to disclose any Confidential Information, the Receiving Party will provide the Disclosing Party with prompt written notice of such\nrequirement in order to enable the Disclosing Party to seek an appropriate protective order or other remedy, and the Receiving Party will consult and\ncooperate with the Disclosing Party to the extent permitted by law with respect to taking steps to resist or narrow the scope of such requirement or\nlegal process. If a protective order or other remedy is not obtained, the terms of this letter agreement are not waived by the Disclosing Party and\ndisclosure of Confidential Information is legally required, the Receiving Party or such of its Representatives will (a) disclose such information only\nto the extent required in the opinion of the Receiving Party’s counsel and (b) give notice to the Disclosing Party of the information to be disclosed as\nfar in advance as is practicable. In any such event, the Receiving Party and its Representatives will use reasonable efforts to ensure that all\nConfidential Information that is so disclosed will be accorded confidential treatment.\n4. Material. Non-Public Information. The Receiving Party acknowledges that in its and its Representatives’ examination of the Confidential\nInformation the Receiving Party and its Representatives will have access to material, non-public information, and that the Receiving Party is aware,\nand will advise its Representatives who are informed as to the matters that are the subject of this Agreement, that state and federal laws, including\nwithout limitation United States securities laws, impose restrictions on the dissemination of such information and trading in securities when in\npossession of such information.\n5. Disclaimer. SUBJECT TO THE LAST SENTENCE OF THIS SECTION 5, THE PARTIES HEREBY DISCLAIM ALL WARRANTIES,\nWHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY AND ALL OF ITS CONFIDENTIAL INFORMATION, AND EACH PARTY\nAGREES THAT NEITHER THE DISCLOSING PARTY NOR ITS REPRESENTATIVES OR ANY OTHER PERSON MAKES ANY\nREPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF THE\nCONFIDENTIAL INFORMATION, INCLUDING, WITHOUT LIMITATION, ANY FORECASTS, PROJECTIONS OR OTHER FORWARD-\nLOOKING INFORMATION INCLUDED THEREIN, AND THAT NEITHER THE DISCLOSING PARTY NOR ITS REPRESENTATIVES OR\nANY OTHER PERSON SHALL ASSUME ANY RESPONSIBILITY OR HAVE ANY LIABILITY TO THE RECEIVING PARTY OR ANY OF\nITS REPRESENTATIVES RESULTING FROM THE SELECTION OR USE OF THE CONFIDENTIAL INFORMATION BY THE RECEIVING\nPARTY OR ITS REPRESENTATIVES. THE RECEIVING PARTY ACKNOWLEDGES THAT IT IS NOT ENTITLED TO RELY ON THE\nACCURACY OR COMPLETENESS OF ANY CONFIDENTIAL INFORMATION AND THAT ONLY SUCH EXPRESS REPRESENTATIONS\nAND WARRANTIES REGARDING CONFIDENTIAL INFORMATION AS MAY BE MADE TO THE RECEIVING PARTY IN A DEFINITIVE\nWRITTEN AGREEMENT RELATING TO A TRANSACTION, IF ANY, SHALL HAVE ANY LEGAL EFFECT, SUBJECT TO THE TERMS\nAND CONDITIONS OF SUCH AGREEMENT. NOTWITHSTANDING THE FOREGOING, THE DISCLOSING PARTY HEREBY\nREPRESENTS AND WARRANTS THAT IT HAS THE AUTHORITY TO DISCLOSE THE CONFIDENTIAL INFORMATION.\n6. Term. This Agreement shall commence as of the date hereof and shall remain in effect for two years. Any obligations imposed on the parties\nby this Agreement that should by their terms survive the termination of this Agreement shall so survive.\n3\n7. Miscellaneous.\na. Each party acknowledges and agrees that no contract or agreement providing for a Transaction shall be deemed to exist, directly or\nindirectly, between the parties and their respective affiliates unless and until a definitive written agreement with respect to a Transaction has been\nexecuted and delivered by Arch and ICG. Each party also agrees that unless and until a definitive written agreement with respect to a Transaction has\nbeen executed and delivered by Arch and ICG, neither party, nor any affiliate thereof, will be under any legal obligation of any kind whatsoever with\nrespect to such a Transaction by virtue of this Agreement, except for the matters specifically provided herein, or otherwise or by virtue of any written\nor oral expression with respect to such a Transaction by either party’s Representatives. Nothing contained in this Agreement nor the furnishing of\nany Confidential Information hereunder shall be construed as granting or conferring any rights by license or otherwise in any intellectual property.\nEach patty further acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made with\nrespect to a Transaction, to terminate discussions and negotiations at any time, and to conduct any process for a Transaction as it shall, in its sole\ndiscretion, determine, including, without limitation, negotiating with any other interested party and entering into a definitive agreement without prior\nnotice to the other party or any other person.\nb. The Receiving Party shall not, nor shall it permit or assist any of its Representatives to, alter or remove any confidentiality label,\nproprietary label, patent marking, copyright notice or other legend placed on Confidential Information, and shall maintain and place any such notices\nor legends on applicable Confidential Information or copies thereof as directed by the Disclosing Party. The rights and obligations set forth in this\nAgreement shall take precedence over any inconsistent specific legend contained on, or any statements made in connection with the disclosure of,\nany Confidential Information.\nc. The parties acknowledge that, due to the unique nature of the Confidential Information, the Disclosing Party’s remedies at law arc\ninadequate and that the Disclosing Party will suffer irreparable harm in the event of breach or threatened breach of any provision of this Agreement.\nAccordingly, in such event, the Disclosing Party shall be entitled to seek injunctive relief without a requirement to post bond, as well as any and all\nother applicable remedies at law or in equity. The party that has breached or threatened to breach this Agreement will not raise the defense of an\nadequate remedy at law.\nd. This Agreement may be amended and any of its terms and conditions may be waived only by a written agreement signed by both\nparties. No provisions regarding the obligations of the parties with respect to Confidential Information set forth in any subsequent or\ncontemporaneous agreement between the parties will take precedence over this Agreement unless (i) such provisions are specific to a particular\nbusiness objective or other arrangement between the parties and (ii) either (A) such provisions are more stringent than those contained herein or\n(B) the subsequent agreement specifically refers to this Agreement and waives or amends the applicable provisions hereof.\ne. The failure of either party at any time or times to require performance of any provision of this Agreement shall in no manner affect its\nrights at a later time to enforce the same. No waiver by either party of any condition or term shall be deemed to be a continuing waiver of such\ncondition or term or any other condition or term.\nf. This Agreement shall be binding upon and inure to the benefit of the heirs, successors and permitted assigns of the parties. Neither this\nAgreement nor the obligations of either party hereunder shall be assignable or transferable by such party without the prior written consent of the\nother\nparty. Any attempted assignment of this Agreement without such consent shall be null and void and shall have no effect.\ng. If any provision of this Agreement shall, for any reason, be adjudged by any court of competent jurisdiction to be invalid or\nunenforceable, such judgment shall not affect, impair or invalidate the remainder of this Agreement but shall be confined in its operation to the\nprovision of this Agreement directly involved in the controversy in which such judgment shall have been rendered.\nh. Any notice required to be given hereunder shall be in writing, sent to the corporate headquarters of the parties and made to the\nattention of the persons executing this Agreement. Such notice shall be deemed duly delivered on the date of hand-delivery or one day after deposit\nwith an overnight courier with tracking capabilities, or five days after deposit in first class U.S. mail, postage prepaid, return receipt requested.\ni. This Agreement shall be governed by and construed in accordance with the law of the State of Delaware, without regard to its conflicts\nof law principles.\nj- No press release, advertisement, marketing materials or other releases for public consumption concerning or otherwise referring to the\nterms, conditions or existence of this Agreement shall be published by either party. Neither party shall promote or otherwise disclose the existence of\nthe relationship between the parties evidenced by this Agreement or any other agreement between the parties for purposes of soliciting or procuring\nsales, clients, investors, financing or other business engagements.\nk. All contacts or inquiries by Arch to ICG, including requests or scheduling of site visits and due diligence visits, shall be made through\nBen Hatfield, CEO of ICG, or Roger Nicholson, General Counsel of ICG, or those individuals expressly designated by either in writing.\nI. This Agreement constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof. All prior\nagreements, understandings and proposals, oral or written, between the parties with respect to the subject matter hereof are superseded by this\nAgreement.\nm. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which, when\ntaken together, shall constitute one and the same instrument. Electronic transmissions of executed copies of this Agreement shall be as effective as\nthe delivery of originally executed copies of this Agreement.\n[The remainder of this page has been left blank intentionally.]\n5\nIN WITNESS WHEREOF, this Non-Disclosure Agreement has been executed by the undersigned as of the day and year first above written.\nArch Coal, Inc.\nBy: /s/ Robert G. Jones\nName: Robert G. Jones\nTitle:  Senior Vice President — Law, General\nCounsel & Secretary\nInternational Coal Group, Inc.\nBy: /s/ Roger L. Nicholson\nName: Roger L. Nicholson\nTitle:  Senior Vice President, Secretary and General\nCounsel	EX-99.(E)(2) 2 dex99e2.htm NON-DISCLOSURE AGREEMENT, DATED AS OF FEBRUARY 25, 2011\nExhibit (e)(2)\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (the "Agreement"), dated as of this 25th day of February, 2011, is by and between Arch Coal, Inc., a Delaware\ncorporation ("Arch"), and International Coal Group, Inc., a Delaware corporation ("ICG").\nRecitals\nA. The parties desire to enter into discussions concerning a potential negotiated transaction (a "Transaction"), which discussions may involve\nthe disclosure by one party (the "DisclosingP Party.") to the other party (the "ReceivingF Party.") of certain confidential or proprietary information\nrelating .to the Disclosing Party or the Transaction.\nB. The parties desire to set forth their respective rights and obligations with respect to the use, dissemination and protection of such\nconfidential or proprietary information.\nAgreements\nNOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements set forth herein and for other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:\n1. Confidential Information.\na. All information, including without limitation all oral, written and electronic information, whether obtained prior to or subsequent to\nthe date of this Agreement, concerning the Disclosing Party or its affiliates that has been or may be furnished to the Receiving Party by or on behalf\nof the Disclosing Party or any of its Representatives (as defined below), and all analysis, compilations, forecasts, studies, notes, other materials and\nportions thereof prepared by the Receiving Party or any of its Representatives, or otherwise on its behalf, that contain, reflect or are based, in whole\nor in part, on such information shall be deemed "Confidential Information."\nb. "Confidential Information" shall not include information that:\ni. is already known to the Receiving Party at the time of disclosure, but only to the extent that, to the knowledge of Receiving Party,\nsuch information is not subject to a duty of confidentiality to the Disclosing Party or any other person;\nii. was in the public domain at the time of disclosure or thereafter enters into the public domain through no breach of this\nAgreement by the Receiving Party or any of its Representatives;\niii. becomes known to the Receiving Party from a source other than the Disclosing Party or Disclosing Party's Representatives,\nwhich source, to the knowledge of Receiving Party, has no duty of confidentiality to Disclosing Party or any other person with respect to the\ninformation; or\niv. is independently developed by the Receiving Party without reference to, reliance on or access to any of the Disclosing Party's\nConfidential Information.\nC. As used herein, "Representatives" shall mean, as to any person, such person's affiliates and its and their respective directors, officers,\nemployees, agents, and advisors (including, without limitation, financial and legal advisors, consultants and accountants).\n2. Use, Dissemination and Protection of Confidential Information.\na. In consideration of the disclosure of Confidential Information hereunder, each party shall keep in confidence the other party's\nConfidential Information for a period of two years from the date of this Agreement. In furtherance of the foregoing, each party shall use the\nConfidential Information only for the purposes of assessing, negotiating and documenting Transaction and not for any other purpose. The Receiving\nParty shall exercise the same degree of care with respect to the Disclosing Party's Confidential Information as the Receiving Party normally takes to\nsafeguard and preserve its own proprietary information, provided that in no event shall the degree of care be less than a reasonable degree of care.\nUpon discovery of any prohibited use or disclosure by either the Receiving Party, any of its Representatives or otherwise, the Receiving Party shall\nimmediately notify the Disclosing Party in writing and shall make its best efforts to prevent any further prohibited use or disclosure; however, such\nremedial action shall in no manner relieve Receiving Party's obligations or liabilities for breach hereunder.\nb. Neither party may disclose the other party's Confidential Information to any third party without the Disclosing Party's prior written\nconsent, provided, that each party may disclose Confidential Information to its Representatives who need to know such Confidential Information for\nthe purpose of evaluating a Transaction on the Receiving Party's behalf if prior to providing such Representatives with such Confidential\nInformation the Receiving Party advises the Representatives of the confidential nature of the information so provided and of the terms of this\nAgreement, and such Representatives agree to maintain such Confidential Information in accordance with the terms of this Agreement and to\notherwise observe the terms and conditions of this Agreement. The Receiving Party acknowledges that it will be responsible for any breach of\nthis\nAgreement by its Representatives.\nC. In furtherance of this Agreement, without the prior written consent of the other party and except as otherwise provided herein, neither\nparty\nnor any of its Representatives may disclose to any person (i) that Confidential Information has been requested by or furnished or made\navailable to the Receiving Party or its Representatives, (ii) the fact that this Agreement exists, (iii) that either Arch or ICG is considering\na\nTransaction, (iv) that investigations, discussions or negotiations are taking place concerning a Transaction or (v) any of the terms, conditions or other\nfacts or information with respect to a Transaction or any other potential transaction involving Arch and ICG, including without limitation, the status\nor termination of this Agreement or any opinion or view with respect to the other party or the Confidential Information.\nd. In the event that either party determines not to proceed with a Transaction or at any time upon demand by the Disclosing Party, an\nauthorized officer of the Receiving Party shall promptly, at the election of the Receiving Party, either return to the Disclosing Party or destroy,\nincluding without limitation permanently deleting such Confidential Information from all computer records, all Confidential Information in the\nReceiving Party's possession or the possession of its Representatives which relates to the Transaction or such other business objective and shall\ncertify to the Disclosing Party as to such return or destruction. Notwithstanding the foregoing, (a) the Receiving Party shall be entitled to retain any\ncopies, extracts or other reproductions of the Confidential Information, in whole or in part, (i) to the extent necessary in order to comply with\napplicable legal and regulatory recordkeeping requirements or (ii) Confidential Information contained in materials submitted to the Receiving Party's\nBoard of Directors in accordance with the customary recordkeeping policies of the Receiving Party, and (b) the Receiving Party's legal, accounting\nand tax Representatives may retain documents or records that contain or refer to Confidential Information for the sole purpose of, and only to the\nextent required for,\n2\ncompliance with any relevant professional standards, codes or insurance policies applicable to the particular Representative. Notwithstanding the\nreturn or destruction of Confidential Information, the Receiving Party will continue to be bound by the non-disclosure obligations contained in this\nAgreement.\n3. Disclosures Required by Law. In the event that the Receiving Party or any of its Representatives are required by applicable law, regulation\nor\nlegal\nor\njudicial\nprocess,\nincluding\nwithout\nlimitation\nby\ndeposition,\ninterrogatory,\nrequest\nfor\ndocuments,\nsubpoena,\ncivil\ninvestigative\ndemand\nor\nsimilar process, to disclose any Confidential Information, the Receiving Party will provide the Disclosing Party with prompt written notice of such\nrequirement in order to enable the Disclosing Party to seek an appropriate protective order or other remedy, and the Receiving Party will consult and\ncooperate with the Disclosing Party to the extent permitted by law with respect to taking steps to resist or narrow the scope of such requirement or\nlegal process. If a protective order or other remedy is not obtained, the terms of this letter agreement are not waived by the Disclosing Party and\ndisclosure of Confidential Information is legally required, the Receiving Party or such of its Representatives will (a) disclose such information only\nto the extent required in the opinion of the Receiving Party's counsel and (b) give notice to the Disclosing Party of the information to be disclosed as\nfar in advance as is practicable. In any such event, the Receiving Party and its Representatives will use reasonable efforts to ensure that all\nConfidential Information that is so disclosed will be accorded confidential treatment.\n4. Material. Non-Public Information. The Receiving Party acknowledges that in its and its Representatives' examination of the Confidential\nInformation the Receiving Party and its Representatives will have access to material, non-public information, and that the Receiving Party is aware,\nand will advise its Representatives who are informed as to the matters that are the subject of this Agreement, that state and federal laws, including\nwithout limitation United States securities laws, impose restrictions on the dissemination of such information and trading in securities when in\npossession of such information.\n5. Disclaimer. SUBJECT TO THE LAST SENTENCE OF THIS SECTION 5, THE PARTIES HEREBY DISCLAIM ALL WARRANTIES,\nWHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY AND ALL OF ITS CONFIDENTIAL INFORMATION, AND EACH PARTY\nAGREES THAT NEITHER THE DISCLOSING PARTY NOR ITS REPRESENTATIVES OR ANY OTHER PERSON MAKES ANY\nREPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF THE\nCONFIDENTIAL INFORMATION, INCLUDING, WITHOUT LIMITATION, ANY FORECASTS, PROJECTIONS OR OTHER FORWARD-\nLOOKING INFORMATION INCLUDED THEREIN, AND THAT NEITHER THE DISCLOSING PARTY NOR ITS REPRESENTATIVES OR\nANY OTHER PERSON SHALL ASSUME ANY RESPONSIBILITY OR HAVE ANY LIABILITY TO THE RECEIVING PARTY OR ANY OF\nITS REPRESENTATIVES RESULTING FROM THE SELECTION OR USE OF THE CONFIDENTIAL INFORMATION BY THE RECEIVING\nPARTY OR ITS REPRESENTATIVES. THE RECEIVING PARTY ACKNOWLEDGES THAT IT IS NOT ENTITLED TO RELY ON THE\nACCURACY OR COMPLETENESS OF ANY CONFIDENTIAL INFORMATION AND THAT ONLY SUCH EXPRESS REPRESENTATIONS\nAND WARRANTIES REGARDING CONFIDENTIAL INFORMATION AS MAY BE MADE TO THE RECEIVING PARTY IN A DEFINITIVE\nWRITTEN AGREEMENT RELATING TO A TRANSACTION, IF ANY, SHALL HAVE ANY LEGAL EFFECT, SUBJECT TO THE TERMS\nAND CONDITIONS OF SUCH AGREEMENT. NOTWITHSTANDING THE FOREGOING, THE DISCLOSING PARTY HEREBY\nREPRESENTS AND WARRANTS THAT IT HAS THE AUTHORITY TO DISCLOSE THE CONFIDENTIAL INFORMATION.\n6.\nTerm. This Agreement shall commence as of the date hereof and shall remain in effect for two years. Any obligations imposed on the parties\nby\nthis Agreement that should by their terms survive the termination of this Agreement shall so survive.\n3\n7. Miscellaneous.\na. Each party acknowledges and agrees that no contract or agreement providing for a Transaction shall be deemed to exist, directly or\nindirectly, between the parties and their respective affiliates unless and until a definitive written agreement with respect to a Transaction has been\nexecuted and delivered by Arch and ICG. Each party also agrees that unless and until a definitive written agreement with respect to a Transaction has\nbeen executed and delivered by Arch and ICG, neither party, nor any affiliate thereof, will be under any legal obligation of any kind\nwhatsoever\nwith\nrespect to such a Transaction by virtue of this Agreement, except for the matters specifically provided herein, or otherwise or by virtue of any written\nor oral expression with respect to such a Transaction by either party's Representatives. Nothing contained in this Agreement nor the furnishing of\nany\nConfidential Information hereunder shall be construed as granting or conferring any rights by license or otherwise in any intellectual property.\nEach patty further acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made with\nrespect to a Transaction, to terminate discussions and negotiations at any time, and to conduct any process for a Transaction as it shall, in its sole\ndiscretion, determine, including, without limitation, negotiating with any other interested party and entering into a definitive agreement without prior\nnotice to the other party or any other person.\nb. The Receiving Party shall not, nor shall it permit or assist any of its Representatives to, alter or remove any confidentiality label,\nproprietary label, patent marking, copyright notice or other legend placed on Confidential Information, and shall maintain and place any such notices\nor legends on applicable Confidential Information or copies thereof as directed by the Disclosing Party. The rights and obligations set forth in this\nAgreement shall take precedence over any inconsistent specific legend contained on, or any statements made in connection with the disclosure of,\nany Confidential Information.\nC. The parties acknowledge that, due to the unique nature of the Confidential Information, the Disclosing Party's remedies at law arc\ninadequate and that the Disclosing Party will suffer irreparable harm in the event of breach or threatened breach of any provision of this Agreement.\nAccordingly, in such event, the Disclosing Party shall be entitled to seek injunctive relief without a requirement to post bond, as well as any and\nall\nother applicable remedies at law or in equity. The party that has breached or threatened to breach this Agreement will not raise the defense of an\nadequate remedy at law.\nd. This Agreement may be amended and any of its terms and conditions may be waived only by a written agreement signed by both\nparties. No provisions regarding the obligations of the parties with respect to Confidential Information set forth in any subsequent or\ncontemporaneous agreement between the parties will take precedence over this Agreement unless (i) such provisions are specific to a particular\nbusiness objective or other arrangement between the parties and (ii) either (A) such provisions are more stringent than those contained herein or\n(B) the subsequent agreement specifically refers to this Agreement and waives or amends the applicable provisions hereof.\ne. The failure of either party at any time or times to require performance of any provision of this Agreement shall in no manner affect its\nrights at a later time to enforce the same. No waiver by either party of any condition or term shall be deemed to be a continuing waiver of such\ncondition or term or any other condition or term.\nf. This Agreement shall be binding upon and inure to the benefit of the heirs, successors and permitted assigns of the parties. Neither this\nAgreement nor the obligations of either party hereunder shall be assignable or transferable by such party without the prior written consent of the\nother\n4\nparty. Any attempted assignment of this Agreement without such consent shall be null and void and shall have no effect.\ng. If any provision of this Agreement shall, for any reason, be adjudged by any court of competent jurisdiction to be invalid or\nunenforceable, such judgment shall not affect, impair or invalidate the remainder of this Agreement but shall be confined in its operation to the\nprovision of this Agreement directly involved in the controversy in which such judgment shall have been rendered.\nh. Any notice required to be given hereunder shall be in writing, sent to the corporate headquarters of the parties and made to the\nattention of the persons executing this Agreement. Such notice shall be deemed duly delivered on the date of hand-delivery or one day after deposit\nwith an overnight courier with tracking capabilities, or five days after deposit in first class U.S. mail, postage prepaid, return receipt requested.\ni. This Agreement shall be governed by and construed in accordance with the law of the State of Delaware, without regard to its conflicts\nof law principles.\nj. No press release, advertisement, marketing materials or other releases for public consumption concerning or otherwise referring to the\nterms, conditions or existence of this Agreement shall be published by either party. Neither party shall promote or otherwise disclose the existence of\nthe relationship between the parties evidenced by this Agreement or any other agreement between the parties for purposes of soliciting or procuring\nsales, clients, investors, financing or other business engagements.\nk. All contacts or inquiries by Arch to ICG, including requests or scheduling of site visits and due diligence visits, shall be made through\nBen Hatfield, CEO of ICG, or Roger Nicholson, General Counsel of ICG, or those individuals expressly designated by either in writing.\nI. This Agreement constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof. All prior\nagreements, understandings and proposals, oral or written, between the parties with respect to the subject matter hereof are superseded by this\nAgreement.\nm. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which, when\ntaken together, shall constitute one and the same instrument. Electronic transmissions of executed copies of this Agreement shall be as effective as\nthe delivery of originally executed copies of this Agreement.\n[The remainder of this page has been left blank intentionally.]\n5\nIN WITNESS WHEREOF, this Non-Disclosure Agreement has been executed by the undersigned as of the day and year first above written.\nArch Coal, Inc.\nBy: /s/ Robert G. Jones\nName: Robert G. Jones\nTitle:\nSenior Vice President - Law, General\nCounsel & Secretary\nInternational Coal Group, Inc.\nBy: /s/ Roger L. Nicholson\nName: Roger L. Nicholson\nTitle:\nSenior Vice President, Secretary and General\nCounsel\n6	EX-99.(E)(2) 2 dex99e2.htm NON-DISCLOSURE AGREEMENT, DATED AS OF FEBRUARY 25, 2011\nExhibit (e)(2)\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (the “ Agreement”), dated as of this 25 day of February, 2011, is by and between Arch Coal, Inc., a Delaware\ncorporation (“Arch”), and International Coal Group, Inc., a Delaware corporation (“ICG”).\nRecitals\nA. The parties desire to enter into discussions concerning a potential negotiated transaction (a “Transaction”), which discussions may involve\nthe disclosure by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) of certain confidential or proprietary information\nrelating .to the Disclosing Party or the Transaction.\nB. The parties desire to set forth their respective rights and obligations with respect to the use, dissemination and protection of such\nconfidential or proprietary information.\nAgreements\nNOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements set forth herein and for other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:\n1. Confidential Information.\na. All information, including without limitation all oral, written and electronic information, whether obtained prior to or subsequent to\nthe date of this Agreement, concerning the Disclosing Party or its affiliates that has been or may be furnished to the Receiving Party by or on behalf\nof the Disclosing Party or any of its Representatives (as defined below), and all analysis, compilations, forecasts, studies, notes, other materials and\nportions thereof prepared by the Receiving Party or any of its Representatives, or otherwise on its behalf, that contain, reflect or are based, in whole\nor in part, on such information shall be deemed “Confidential Information.”\nb. “Confidential Information” shall not include information that:\ni. is already known to the Receiving Party at the time of disclosure, but only to the extent that, to the knowledge of Receiving Party,\nsuch information is not subject to a duty of confidentiality to the Disclosing Party or any other person;\nii. was in the public domain at the time of disclosure or thereafter enters into the public domain through no breach of this\nAgreement by the Receiving Party or any of its Representatives;\niii. becomes known to the Receiving Party from a source other than the Disclosing Party or Disclosing Party’s Representatives,\nwhich source, to the knowledge of Receiving Party, has no duty of confidentiality to Disclosing Party or any other person with respect to the\ninformation; or\niv. is independently developed by the Receiving Party without reference to, reliance on or access to any of the Disclosing Party’s\nConfidential Information.\nth\nc. As used herein, “Representatives” shall mean, as to any person, such person’s affiliates and its and their respective directors, officers,\nemployees, agents, and advisors (including, without limitation, financial and legal advisors, consultants and accountants).\n2. Use, Dissemination and Protection of Confidential Information.\na. In consideration of the disclosure of Confidential Information hereunder, each party shall keep in confidence the other party’s\nConfidential Information for a period of two years from the date of this Agreement. In furtherance of the foregoing, each party shall use the\nConfidential Information only for the purposes of assessing, negotiating and documenting Transaction and not for any other purpose. The Receiving\nParty shall exercise the same degree of care with respect to the Disclosing Party’s Confidential Information as the Receiving Party normally takes to\nsafeguard and preserve its own proprietary information, provided that in no event shall the degree of care be less than a reasonable degree of care.\nUpon discovery of any prohibited use or disclosure by either the Receiving Party, any of its Representatives or otherwise, the Receiving Party shall\nimmediately notify the Disclosing Party in writing and shall make its best efforts to prevent any further prohibited use or disclosure; however, such\nremedial action shall in no manner relieve Receiving Party’s obligations or liabilities for breach hereunder.\nb. Neither party may disclose the other party’s Confidential Information to any third party without the Disclosing Party’s prior written\nconsent, provided, that each party may disclose Confidential Information to its Representatives who need to know such Confidential Information for\nthe purpose of evaluating a Transaction on the Receiving Party’s behalf if prior to providing such Representatives with such Confidential\nInformation the Receiving Party advises the Representatives of the confidential nature of the information so provided and of the terms of this\nAgreement, and such Representatives agree to maintain such Confidential Information in accordance with the terms of this Agreement and to\notherwise observe the terms and conditions of this Agreement. The Receiving Party acknowledges that it will be responsible for any breach of this\nAgreement by its Representatives.\nc. In furtherance of this Agreement, without the prior written consent of the other party and except as otherwise provided herein, neither\nparty nor any of its Representatives may disclose to any person (i) that Confidential Information has been requested by or furnished or made\navailable to the Receiving Party or its Representatives, (ii) the fact that this Agreement exists, (iii) that either Arch or ICG is considering a\nTransaction, (iv) that investigations, discussions or negotiations are taking place concerning a Transaction or (v) any of the terms, conditions or other\nfacts or information with respect to a Transaction or any other potential transaction involving Arch and ICG, including without limitation, the status\nor termination of this Agreement or any opinion or view with respect to the other party or the Confidential Information.\nd. In the event that either party determines not to proceed with a Transaction or at any time upon demand by the Disclosing Party, an\nauthorized officer of the Receiving Party shall promptly, at the election of the Receiving Party, either return to the Disclosing Party or destroy,\nincluding without limitation permanently deleting such Confidential Information from all computer records, all Confidential Information in the\nReceiving Party’s possession or the possession of its Representatives which relates to the Transaction or such other business objective and shall\ncertify to the Disclosing Party as to such return or destruction. Notwithstanding the foregoing, (a) the Receiving Party shall be entitled to retain any\ncopies, extracts or other reproductions of the Confidential Information, in whole or in part, (i) to the extent necessary in order to comply with\napplicable legal and regulatory recordkeeping requirements or (ii) Confidential Information contained in materials submitted to the Receiving Party’s\nBoard of Directors in accordance with the customary recordkeeping policies of the Receiving Party, and (b) the Receiving Party’s legal, accounting\nand tax Representatives may retain documents or records that contain or refer to Confidential Information for the sole purpose of, and only to the\nextent required for,\n2\ncompliance with any relevant professional standards, codes or insurance policies applicable to the particular Representative. Notwithstanding the\nreturn or destruction of Confidential Information, the Receiving Party will continue to be bound by the non-disclosure obligations contained in this\nAgreement.\n3. Disclosures Required by Law. In the event that the Receiving Party or any of its Representatives are required by applicable law, regulation\nor legal or judicial process, including without limitation by deposition, interrogatory, request for documents, subpoena, civil investigative demand or\nsimilar process, to disclose any Confidential Information, the Receiving Party will provide the Disclosing Party with prompt written notice of such\nrequirement in order to enable the Disclosing Party to seek an appropriate protective order or other remedy, and the Receiving Party will consult and\ncooperate with the Disclosing Party to the extent permitted by law with respect to taking steps to resist or narrow the scope of such requirement or\nlegal process. If a protective order or other remedy is not obtained, the terms of this letter agreement are not waived by the Disclosing Party and\ndisclosure of Confidential Information is legally required, the Receiving Party or such of its Representatives will (a) disclose such information only\nto the extent required in the opinion of the Receiving Party’s counsel and (b) give notice to the Disclosing Party of the information to be disclosed as\nfar in advance as is practicable. In any such event, the Receiving Party and its Representatives will use reasonable efforts to ensure that all\nConfidential Information that is so disclosed will be accorded confidential treatment.\n4. Material. Non-Public Information. The Receiving Party acknowledges that in its and its Representatives’ examination of the Confidential\nInformation the Receiving Party and its Representatives will have access to material, non-public information, and that the Receiving Party is aware,\nand will advise its Representatives who are informed as to the matters that are the subject of this Agreement, that state and federal laws, including\nwithout limitation United States securities laws, impose restrictions on the dissemination of such information and trading in securities when in\npossession of such information.\n5. Disclaimer. SUBJECT TO THE LAST SENTENCE OF THIS SECTION 5, THE PARTIES HEREBY DISCLAIM ALL WARRANTIES,\nWHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY AND ALL OF ITS CONFIDENTIAL INFORMATION, AND EACH PARTY\nAGREES THAT NEITHER THE DISCLOSING PARTY NOR ITS REPRESENTATIVES OR ANY OTHER PERSON MAKES ANY\nREPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF THE\nCONFIDENTIAL INFORMATION, INCLUDING, WITHOUT LIMITATION, ANY FORECASTS, PROJECTIONS OR OTHER FORWARD-\nLOOKING INFORMATION INCLUDED THEREIN, AND THAT NEITHER THE DISCLOSING PARTY NOR ITS REPRESENTATIVES OR\nANY OTHER PERSON SHALL ASSUME ANY RESPONSIBILITY OR HAVE ANY LIABILITY TO THE RECEIVING PARTY OR ANY OF\nITS REPRESENTATIVES RESULTING FROM THE SELECTION OR USE OF THE CONFIDENTIAL INFORMATION BY THE RECEIVING\nPARTY OR ITS REPRESENTATIVES. THE RECEIVING PARTY ACKNOWLEDGES THAT IT IS NOT ENTITLED TO RELY ON THE\nACCURACY OR COMPLETENESS OF ANY CONFIDENTIAL INFORMATION AND THAT ONLY SUCH EXPRESS REPRESENTATIONS\nAND WARRANTIES REGARDING CONFIDENTIAL INFORMATION AS MAY BE MADE TO THE RECEIVING PARTY IN A DEFINITIVE\nWRITTEN AGREEMENT RELATING TO A TRANSACTION, IF ANY, SHALL HAVE ANY LEGAL EFFECT, SUBJECT TO THE TERMS\nAND CONDITIONS OF SUCH AGREEMENT. NOTWITHSTANDING THE FOREGOING, THE DISCLOSING PARTY HEREBY\nREPRESENTS AND WARRANTS THAT IT HAS THE AUTHORITY TO DISCLOSE THE CONFIDENTIAL INFORMATION.\n6. Term. This Agreement shall commence as of the date hereof and shall remain in effect for two years. Any obligations imposed on the parties\nby this Agreement that should by their terms survive the termination of this Agreement shall so survive.\n3\n7. Miscellaneous.\na. Each party acknowledges and agrees that no contract or agreement providing for a Transaction shall be deemed to exist, directly or\nindirectly, between the parties and their respective affiliates unless and until a definitive written agreement with respect to a Transaction has been\nexecuted and delivered by Arch and ICG. Each party also agrees that unless and until a definitive written agreement with respect to a Transaction has\nbeen executed and delivered by Arch and ICG, neither party, nor any affiliate thereof, will be under any legal obligation of any kind whatsoever with\nrespect to such a Transaction by virtue of this Agreement, except for the matters specifically provided herein, or otherwise or by virtue of any written\nor oral expression with respect to such a Transaction by either party’s Representatives. Nothing contained in this Agreement nor the furnishing of\nany Confidential Information hereunder shall be construed as granting or conferring any rights by license or otherwise in any intellectual property.\nEach patty further acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made with\nrespect to a Transaction, to terminate discussions and negotiations at any time, and to conduct any process for a Transaction as it shall, in its sole\ndiscretion, determine, including, without limitation, negotiating with any other interested party and entering into a definitive agreement without prior\nnotice to the other party or any other person.\nb. The Receiving Party shall not, nor shall it permit or assist any of its Representatives to, alter or remove any confidentiality label,\nproprietary label, patent marking, copyright notice or other legend placed on Confidential Information, and shall maintain and place any such notices\nor legends on applicable Confidential Information or copies thereof as directed by the Disclosing Party. The rights and obligations set forth in this\nAgreement shall take precedence over any inconsistent specific legend contained on, or any statements made in connection with the disclosure of,\nany Confidential Information.\nc. The parties acknowledge that, due to the unique nature of the Confidential Information, the Disclosing Party’s remedies at law arc\ninadequate and that the Disclosing Party will suffer irreparable harm in the event of breach or threatened breach of any provision of this Agreement.\nAccordingly, in such event, the Disclosing Party shall be entitled to seek injunctive relief without a requirement to post bond, as well as any and all\nother applicable remedies at law or in equity. The party that has breached or threatened to breach this Agreement will not raise the defense of an\nadequate remedy at law.\nd. This Agreement may be amended and any of its terms and conditions may be waived only by a written agreement signed by both\nparties. No provisions regarding the obligations of the parties with respect to Confidential Information set forth in any subsequent or\ncontemporaneous agreement between the parties will take precedence over this Agreement unless (i) such provisions are specific to a particular\nbusiness objective or other arrangement between the parties and (ii) either (A) such provisions are more stringent than those contained herein or\n(B) the subsequent agreement specifically refers to this Agreement and waives or amends the applicable provisions hereof.\ne. The failure of either party at any time or times to require performance of any provision of this Agreement shall in no manner affect its\nrights at a later time to enforce the same. No waiver by either party of any condition or term shall be deemed to be a continuing waiver of such\ncondition or term or any other condition or term.\nf. This Agreement shall be binding upon and inure to the benefit of the heirs, successors and permitted assigns of the parties. Neither this\nAgreement nor the obligations of either party hereunder shall be assignable or transferable by such party without the prior written consent of the\nother\n4\nparty. Any attempted assignment of this Agreement without such consent shall be null and void and shall have no effect.\ng. If any provision of this Agreement shall, for any reason, be adjudged by any court of competent jurisdiction to be invalid or\nunenforceable, such judgment shall not affect, impair or invalidate the remainder of this Agreement but shall be confined in its operation to the\nprovision of this Agreement directly involved in the controversy in which such judgment shall have been rendered.\nh. Any notice required to be given hereunder shall be in writing, sent to the corporate headquarters of the parties and made to the\nattention of the persons executing this Agreement. Such notice shall be deemed duly delivered on the date of hand-delivery or one day after deposit\nwith an overnight courier with tracking capabilities, or five days after deposit in first class U.S . mail, postage prepaid, return receipt requested.\ni. This Agreement shall be governed by and construed in accordance with the law of the State of Delaware, without regard to its conflicts\nof law principles.\nj. No press release, advertisement, marketing materials or other releases for public consumption concerning or otherwise referring to the\nterms, conditions or existence of this Agreement shall be published by either party. Neither party shall promote or otherwise disclose the existence of\nthe relationship between the parties evidenced by this Agreement or any other agreement between the parties for purposes of soliciting or procuring\nsales, clients, investors, financing or other business engagements.\nk. All contacts or inquiries by Arch to ICG, including requests or scheduling of site visits and due diligence visits, shall be made through\nBen Hatfield, CEO of ICG, or Roger Nicholson, General Counsel of ICG, or those individuals expressly designated by either in writing.\nI. This Agreement constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof. All prior\nagreements, understandings and proposals, oral or written, between the parties with respect to the subject matter hereof are superseded by this\nAgreement.\nm. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which, when\ntaken together, shall constitute one and the same instrument. Electronic transmissions of executed copies of this Agreement shall be as effective as\nthe delivery of originally executed copies of this Agreement.\n[The remainder of this page has been left blank intentionally.]\n5\nIN WITNESS WHEREOF, this Non-Disclosure Agreement has been executed by the undersigned as of the day and year first above written.\nArch Coal, Inc.\nBy: /s/ Robert G. Jones\nName: Robert G. Jones\nTitle: Senior Vice President — Law, General\nCounsel & Secretary\nInternational Coal Group, Inc.\nBy: /s/ Roger L. Nicholson\nName: Roger L. Nicholson\nTitle: Senior Vice President, Secretary and General\nCounsel\n6
+5fa1bd78d9a23b5a3f8b76ef2d1045d7.pdf	effective_date jurisdiction party term	EXHIBIT B\nFORM OF\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this “Agreement”), is made and entered into as of the date on which it is fully executed, as\nindicated by signatures below, by and among HopFed Bancorp, Inc., a Delaware corporation (the “Company”) and the Stilwell Group (composed\nof Stilwell Activist Fund, L.P., Stilwell Activist Investments, L.P., and Stilwell Associates, L.P., each a Delaware limited partnership; Stilwell\nValue LLC, a Delaware limited liability company; and Joseph Stilwell, an individual; and their respective employees and representatives).\nWHEREAS, the Company and the Stilwell Group have agreed that it is in their mutual interests to enter into this Agreement as hereinafter\ndescribed.\nNOW THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree as\nfollows:\n1. In connection with that certain Standstill Agreement, dated April 10, 2018, by and among the Company and the Stilwell Group, the\nCompany intends to share information concerning the Company and its subsidiaries with the Stilwell Group, including, without limitation,\ninformation regarding the Company’s and its subsidiaries’ businesses, operations, and strategic options (if applicable), which may include\nconfidential or proprietary information (collectively the “Confidential Information”) and such Confidential Information may be shared among the\nStilwell Group’s affiliates, directors, officers, employees, representatives, and agents (collectively, the “Representatives”) who have a need to\nknow such information and are informed by the Stilwell Group of the confidential nature of such information. The term “Confidential\nInformation” does not include information that (a) is or becomes available to the Stilwell Group or its Representatives on a non-confidential basis\nfrom a source other than the Company; provided that such source is not known by the Stilwell Group or its Representatives to be bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or\nbecomes generally available to the public other than as a result of a disclosure by the Stilwell Group or its Representatives in violation of this\nAgreement, (c) was in the Stilwell Group’s or its Representatives’ possession at the time of disclosure by the Company, or (d) has been or is\nindependently developed by the Stilwell Group or its Representatives without the use of the Confidential Information. The Stilwell Group\nexpressly agrees to maintain all Confidential Information concerning the Company and its subsidiaries in confidence.\n2. The Stilwell Group expressly acknowledges that it and its Representatives are aware that the Confidential Information may contain\nmaterial, non-public information about the Company, and that federal and state securities laws may prohibit a person from purchasing or selling\nsecurities of a company, or from communicating such material, non-public information to any other person under circumstances in which it is\nreasonably foreseeable that such other person is likely to purchase or sell such securities, while the first-mentioned person is in possession of\nmaterial nonpublic information about such company. The Stilwell Group expressly acknowledges that it shall not, and shall use commercially\nreasonable efforts to ensure that its Representatives do not, trade or engage in any derivative or other transaction, on the basis of material,\nnon-public information in violation of such laws. To the extent any nonpublic information concerning the Company and its subsidiaries received\nby the Stilwell Group is material, this Agreement is intended to satisfy the confidentiality agreement exclusion of Regulation FD of the U.S .\nSecurities and Exchange Commission (the “SEC”) set forth in Rule 100(b)(2)(ii) of Regulation FD of the SEC.\nB-1\n3. Notwithstanding anything herein to the contrary, in the event that the Stilwell Group or its Representatives are required by applicable\nlaw, regulation or legal or judicial process (including without limitation, by deposition, interrogatory, request for documents, subpoena, civil\ninvestigative demand or similar process) to disclose any of the Confidential Information, the Stilwell Group will promptly notify(except where\nsuch notice would be legally prohibited) the Company so that the Company may seek a protective order or other appropriate remedy (and if the\nCompany seeks such an order, the Stilwell Group will provide such cooperation as the Company shall reasonably request), at its sole cost and\nexpense. Nothing herein shall be deemed to prevent the Stilwell Group or its Representatives, as the case may be, from honoring a subpoena,\nlegal process or other legal requirement that requires discovery, disclosure or production of the Confidential Information if (a) after notifying and\ncooperating with the Company as required above, the Stilwell Group produces or discloses only that portion of the Confidential Information\nwhich its outside legal counsel advises the Stilwell Group is legally required to be so produced or disclosed and the Stilwell Group informs the\nrecipient of such Confidential Information of the existence of this Agreement and the confidential nature of such Confidential Information; or\n(b) the Company consents in writing to having the Confidential Information produced or disclosed pursuant to the subpoena, legal process or\nother legal requirement.\n4. The Stilwell Group represents and warrants to the Company that this Agreement has been duly and validly authorized, executed and\ndelivered by the Stilwell Group, and is a valid and binding agreement enforceable against the Stilwell Group in accordance with its terms.\n5. The Company represents and warrants to the Stilwell Group that this Agreement has been duly and validly authorized, executed and\ndelivered by the Company, and is a valid and binding agreement enforceable against the Company in accordance with its terms.\n6. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic information of the\nCompany and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and that,\nin addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable relief as a remedy\nfor such breach, and agrees that in conjunction therewith the Company shall not be required to post any bond.\n7. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all\nprior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not referred to\nherein.\n8. This Agreement shall be effective upon the execution of the Agreement, and will remain in effect until the date that is fifteen\n(15) business days prior to the deadline for the submission of stockholder nominations and proposals for the Company’s 2022 Annual Meeting of\nStockholders pursuant to the Company’s Certificate of Incorporation, provided, however, that the parties may agree in writing to extend the term\nof this Agreement.\n9. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to choice of\nlaw principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby irrevocably consents to\nthe exclusive jurisdiction of the state and federal courts sitting in the State of Delaware to resolve any dispute arising from this Agreement and\nwaives any defense of inconvenient or improper forum.\n10. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion\nthereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\n2\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties. All representations, warranties, covenants and agreements\nmade herein shall survive the execution and delivery of this Agreement.\n11. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written\nagreement executed by all of the parties hereto.\n12. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one and\nthe same agreement.\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as of the\nday and year indicated below.\nTHE STILWELL GROUP\nBy:\nJoseph Stilwell\nManaging Member\nDated: April , 2018\nHOPFED BANCORP, INC.\nBy:\nMichael Woolfolk\nEVP, COO, Corporate Secretary\nDated: April , 2018\n3	EXHIBIT B\nFORM OF\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this “Agreement”), is made and entered into as of the date on which it is fully executed, as\nindicated by signatures below, by and among HopFed Bancorp, Inc., a Delaware corporation (the “Company”) and the Stilwell Group (composed\nof Stilwell Activist Fund, L.P., Stilwell Activist Investments, L.P., and Stilwell Associates, L.P., each a Delaware limited partnership; Stilwell\nValue LLC, a Delaware limited liability company; and Joseph Stilwell, an individual; and their respective employees and representatives).\nWHEREAS, the Company and the Stilwell Group have agreed that it is in their mutual interests to enter into this Agreement as hereinafter\ndescribed.\nNOW THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree as\nfollows:\n1. In connection with that certain Standstill Agreement, dated April 10, 2018, by and among the Company and the Stilwell Group, the\nCompany intends to share information concerning the Company and its subsidiaries with the Stilwell Group, including, without limitation,\ninformation regarding the Company’s and its subsidiaries’ businesses, operations, and strategic options (if applicable), which may include\nconfidential or proprietary information (collectively the “Confidential Information”) and such Confidential Information may be shared among the\nStilwell Group’s affiliates, directors, officers, employees, representatives, and agents (collectively, the “Representatives”) who have a need to\nknow such information and are informed by the Stilwell Group of the confidential nature of such information. The term “Confidential\nInformation” does not include information that (a) is or becomes available to the Stilwell Group or its Representatives on a non-confidential basis\nfrom a source other than the Company; provided that such source is not known by the Stilwell Group or its Representatives to be bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or\nbecomes generally available to the public other than as a result of a disclosure by the Stilwell Group or its Representatives in violation of this\nAgreement, (c) was in the Stilwell Group’s or its Representatives’ possession at the time of disclosure by the Company, or (d) has been or is\nindependently developed by the Stilwell Group or its Representatives without the use of the Confidential Information. The Stilwell Group\nexpressly agrees to maintain all Confidential Information concerning the Company and its subsidiaries in confidence.\n2. The Stilwell Group expressly acknowledges that it and its Representatives are aware that the Confidential Information may contain\nmaterial, non-public information about the Company, and that federal and state securities laws may prohibit a person from purchasing or selling\nsecurities of a company, or from communicating such material, non-public information to any other person under circumstances in which it is\nreasonably foreseeable that such other person is likely to purchase or sell such securities, while the first-mentioned person is in possession of\nmaterial nonpublic information about such company. The Stilwell Group expressly acknowledges that it shall not, and shall use commercially\nreasonable efforts to ensure that its Representatives do not, trade or engage in any derivative or other transaction, on the basis of material,\nnon-public information in violation of such laws. To the extent any nonpublic information concerning the Company and its subsidiaries received\nby the Stilwell Group is material, this Agreement is intended to satisfy the confidentiality agreement exclusion of Regulation FD of the U.S.\nSecurities and Exchange Commission (the “SEC”) set forth in Rule 100(b)(2)(ii) of Regulation FD of the SEC.\nB-1\n3. Notwithstanding anything herein to the contrary, in the event that the Stilwell Group or its Representatives are required by applicable\nlaw, regulation or legal or judicial process (including without limitation, by deposition, interrogatory, request for documents, subpoena, civil\ninvestigative demand or similar process) to disclose any of the Confidential Information, the Stilwell Group will promptly notify(except where\nsuch notice would be legally prohibited) the Company so that the Company may seek a protective order or other appropriate remedy (and if the\nCompany seeks such an order, the Stilwell Group will provide such cooperation as the Company shall reasonably request), at its sole cost and\nexpense. Nothing herein shall be deemed to prevent the Stilwell Group or its Representatives, as the case may be, from honoring a subpoena,\nlegal process or other legal requirement that requires discovery, disclosure or production of the Confidential Information if (a) after notifying and\ncooperating with the Company as required above, the Stilwell Group produces or discloses only that portion of the Confidential Information\nwhich its outside legal counsel advises the Stilwell Group is legally required to be so produced or disclosed and the Stilwell Group informs the\nrecipient of such Confidential Information of the existence of this Agreement and the confidential nature of such Confidential Information; or\n(b) the Company consents in writing to having the Confidential Information produced or disclosed pursuant to the subpoena, legal process or\nother legal requirement.\n4. The Stilwell Group represents and warrants to the Company that this Agreement has been duly and validly authorized, executed and\ndelivered by the Stilwell Group, and is a valid and binding agreement enforceable against the Stilwell Group in accordance with its terms.\n5. The Company represents and warrants to the Stilwell Group that this Agreement has been duly and validly authorized, executed and\ndelivered by the Company, and is a valid and binding agreement enforceable against the Company in accordance with its terms.\n6. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic information of the\nCompany and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and that,\nin addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable relief as a remedy\nfor such breach, and agrees that in conjunction therewith the Company shall not be required to post any bond.\n7. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all\nprior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not referred to\nherein.\n8. This Agreement shall be effective upon the execution of the Agreement, and will remain in effect until the date that is fifteen\n(15) business days prior to the deadline for the submission of stockholder nominations and proposals for the Company’s 2022 Annual Meeting of\nStockholders pursuant to the Company’s Certificate of Incorporation, provided, however, that the parties may agree in writing to extend the term\nof this Agreement.\n9. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to choice of\nlaw principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby irrevocably consents to\nthe exclusive jurisdiction of the state and federal courts sitting in the State of Delaware to resolve any dispute arising from this Agreement and\nwaives any defense of inconvenient or improper forum.\n10. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion\nthereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\n2\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties. All representations, warranties, covenants and agreements\nmade herein shall survive the execution and delivery of this Agreement.\n11. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written\nagreement executed by all of the parties hereto.\n12.  This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one and\nthe same agreement.\nIN WITNESS WHEREQOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as of the\nday and year indicated below.\nTHE STILWELL GROUP\nBy:\nJoseph Stilwell\nManaging Member\nDated: April , 2018\nHOPFED BANCORP, INC.\nBy:\nMichael Woolfolk\nEVP, COO, Corporate Secretary\nDated: April , 2018	EXHIBIT B\nFORM OF\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this "Agreement"), is made and entered into as of the date on which it is fully executed, as\nindicated by signatures below, by and among HopFed Bancorp, Inc., a Delaware corporation (the "Company") and the Stilwell Group (composed\nof Stilwell Activist Fund, L.P., Stilwell Activist Investments, L.P., and Stilwell Associates, L.P., each a Delaware limited partnership; Stilwell\nValue LLC, a Delaware limited liability company; and Joseph Stilwell, an individual; and their respective employees and representatives).\nWHEREAS, the Company and the Stilwell Group have agreed that it is in their mutual interests to enter into this Agreement as hereinafter\ndescribed.\nNOW THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree as\nfollows:\n1. In connection with that certain Standstill Agreement, dated April 10, 2018, by and among the Company and the Stilwell Group, the\nCompany intends to share information concerning the Company and its subsidiaries with the Stilwell Group, including, without limitation,\ninformation regarding the Company's and its subsidiaries' businesses, operations, and strategic options (if applicable), which may include\nconfidential or proprietary information (collectively the "Confidential Information") and such Confidential Information may be shared among the\nStilwell Group's affiliates, directors, officers, employees, representatives, and agents (collectively, the "Representatives") who have a need to\nknow such information and are informed by the Stilwell Group of the confidential nature of such information. The term "Confidential\nInformation" does not include information that (a) is or becomes available to the Stilwell Group or its Representatives on a non-confidential basis\nfrom a source other than the Company; provided that such source is not known by the Stilwell Group or its Representatives to be bound by\na\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or\nbecomes\ngenerally\navailable\nto\nthe\npublic\nother\nthan\nas\na\nresult\nof\na\ndisclosure\nby\nthe\nStilwell\nGroup\nor\nits\nRepresentatives\nin\nviolation\nof\nthis\nAgreement, (c) was in the Stilwell Group's or its Representatives' possession at the time of disclosure by the Company, or (d) has been or is\nindependently developed by the Stilwell Group or its Representatives without the use of the Confidential Information. The Stilwell Group\nexpressly agrees to maintain all Confidential Information concerning the Company and its subsidiaries in confidence.\n2. The Stilwell Group expressly acknowledges that it and its Representatives are aware that the Confidential Information may contain\nmaterial, non-public information about the Company, and that federal and state securities laws may prohibit a person from purchasing or selling\nsecurities of a company, or from communicating such material, non-public information to any other person under circumstances in which it is\nreasonably foreseeable that such other person is likely to purchase or sell such securities, while the first-mentioned person is in possession of\nmaterial nonpublic information about such company. The Stilwell Group expressly acknowledges that it shall not, and shall use commercially\nreasonable efforts to ensure that its Representatives do not, trade or engage in any derivative or other transaction, on the basis of material,\nnon-public information in violation of such laws. To the extent any nonpublic information concerning the Company and its subsidiaries received\nby the Stilwell Group is material, this Agreement is intended to satisfy the confidentiality agreement exclusion of Regulation FD of the U.S.\nSecurities and Exchange Commission (the "SEC") set forth in Rule 100(b)(2)(ii) of Regulation FD of the SEC.\nB-1\n3. Notwithstanding anything herein to the contrary, in the event that the Stilwell Group or its Representatives are required by applicable\nlaw, regulation or legal or judicial process (including without limitation, by deposition, interrogatory, request for documents, subpoena, civil\ninvestigative demand or similar process) to disclose any of the Confidential Information, the Stilwell Group will promptly notify(except where\nsuch notice would be legally prohibited) the Company so that the Company may seek a protective order or other appropriate remedy (and if the\nCompany seeks such an order, the Stilwell Group will provide such cooperation as the Company shall reasonably request), at its sole cost and\nexpense. Nothing herein shall be deemed to prevent the Stilwell Group or its Representatives, as the case may be, from honoring a subpoena,\nlegal process or other legal requirement that requires discovery, disclosure or production of the Confidential Information if (a) after notifying and\ncooperating with the Company as required above, the Stilwell Group produces or discloses only that portion of the Confidential Information\nwhich its outside legal counsel advises the Stilwell Group is legally required to be so produced or disclosed and the Stilwell Group informs\nthe\nrecipient of such Confidential Information of the existence of this Agreement and the confidential nature of such Confidential Information; or\n(b) the Company consents in writing to having the Confidential Information produced or disclosed pursuant to the subpoena, legal process or\nother legal requirement.\n4. The Stilwell Group represents and warrants to the Company that this Agreement has been duly and validly authorized, executed and\ndelivered by the Stilwell Group, and is a valid and binding agreement enforceable against the Stilwell Group in accordance with its terms.\n5. The Company represents and warrants to the Stilwell Group that this Agreement has been duly and validly authorized, executed and\ndelivered by the Company, and is a valid and binding agreement enforceable against the Company in accordance with its terms.\n6. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic information of the\nCompany and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and that,\nin addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable relief as a remedy\nfor such breach, and agrees that in conjunction therewith the Company shall not be required to post any bond.\n7. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all\nprior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not referred to\nherein.\n8. This Agreement shall be effective upon the execution of the Agreement, and will remain in effect until the date that is fifteen\n(15) business days prior to the deadline for the submission of stockholder nominations and proposals for the Company's 2022 Annual Meeting of\nStockholders pursuant to the Company's Certificate of Incorporation, provided, however, that the parties may agree in writing to extend the term\nof this Agreement.\n9. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to choice of\nlaw principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby irrevocably consents to\nthe exclusive jurisdiction of the state and federal courts sitting in the State of Delaware to resolve any dispute arising from this Agreement and\nwaives any defense of inconvenient or improper forum.\n10. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion\nthereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\n2\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties. All representations, warranties, covenants and agreements\nmade herein shall survive the execution and delivery of this Agreement.\n11.\nThis Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written\nagreement executed by all of the parties hereto.\n12. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one and\nthe same agreement.\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as of the\nday and year indicated below.\nTHE STILWELL GROUP\nBy:\nJoseph Stilwell\nManaging Member\nDated: April , 2018\nHOPFED BANCORP, INC.\nBy:\nMichael Woolfolk\nEVP, COO, Corporate Secretary\nDated: April , 2018\n3	EXHIBIT B\nFORM OF\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this “Agreement”), is made and entered into as of the date on which it is fully executed, as\nindicated by signatures below, by and among HopFed Bancorp, Inc., a Delaware corporation (the “Company”) and the Stilwell Group (composed\nof Stilwell Activist Fund, L.P., Stilwell Activist Investments, L.P., and Stilwell Associates, L.P., each a Delaware limited partnership; Stilwell\nValue LLC, a Delaware limited liability company; and Joseph Stilwell, an individual; and their respective employees and representatives).\nWHEREAS, the Company and the Stilwell Group have agreed that it is in their mutual interests to enter into this Agreement as hereinafter\ndescribed.\nNOW THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree as\nfollows:\n1. In connection with that certain Standstill Agreement, dated April 10, 2018, by and among the Company and the Stilwell Group, the\nCompany intends to share information concerning the Company and its subsidiaries with the Stilwell Group, including, without limitation,\ninformation regarding the Company’s and its subsidiaries’ businesses, operations, and strategic options (if applicable), which may include\nconfidential or proprietary information (collectively the “Confidential Information”) and such Confidential Information may be shared among the\nStilwell Group’s affiliates, directors, officers, employees, representatives, and agents (collectively, the “Representatives”) who have a need to\nknow such information and are informed by the Stilwell Group of the confidential nature of such information. The term “Confidential\nInformation” does not include information that (a) is or becomes available to the Stilwell Group or its Representatives on a non-confidential basis\nfrom a source other than the Company; provided that such source is not known by the Stilwell Group or its Representatives to be bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation to, the Company that prohibits such disclosure, (b) is or\nbecomes generally available to the public other than as a result of a disclosure by the Stilwell Group or its Representatives in violation of this\nAgreement, (c) was in the Stilwell Group’s or its Representatives’ possession at the time of disclosure by the Company, or (d) has been or is\nindependently developed by the Stilwell Group or its Representatives without the use of the Confidential Information. The Stilwell Group\nexpressly agrees to maintain all Confidential Information concerning the Company and its subsidiaries in confidence.\n2. The Stilwell Group expressly acknowledges that it and its Representatives are aware that the Confidential Information may contain\nmaterial, non-public information about the Company, and that federal and state securities laws may prohibit a person from purchasing or selling\nsecurities of a company, or from communicating such material, non-public information to any other person under circumstances in which it is\nreasonably foreseeable that such other person is likely to purchase or sell such securities, while the first-mentioned person is in possession of\nmaterial nonpublic information about such company. The Stilwell Group expressly acknowledges that it shall not, and shall use commercially\nreasonable efforts to ensure that its Representatives do not, trade or engage in any derivative or other transaction, on the basis of material,\nnon-public information in violation of such laws. To the extent any nonpublic information concerning the Company and its subsidiaries received\nby the Stilwell Group is material, this Agreement is intended to satisfy the confidentiality agreement exclusion of Regulation FD of the U.S .\nSecurities and Exchange Commission (the “SEC”) set forth in Rule 100(b)(2)(ii) of Regulation FD of the SEC.\nB-1\n3. Notwithstanding anything herein to the contrary, in the event that the Stilwell Group or its Representatives are required by applicable\nlaw, regulation or legal or judicial process (including without limitation, by deposition, interrogatory, request for documents, subpoena, civil\ninvestigative demand or similar process) to disclose any of the Confidential Information, the Stilwell Group will promptly notify(except where\nsuch notice would be legally prohibited) the Company so that the Company may seek a protective order or other appropriate remedy (and if the\nCompany seeks such an order, the Stilwell Group will provide such cooperation as the Company shall reasonably request), at its sole cost and\nexpense. Nothing herein shall be deemed to prevent the Stilwell Group or its Representatives, as the case may be, from honoring a subpoena,\nlegal process or other legal requirement that requires discovery, disclosure or production of the Confidential Information if (a) after notifying and\ncooperating with the Company as required above, the Stilwell Group produces or discloses only that portion of the Confidential Information\nwhich its outside legal counsel advises the Stilwell Group is legally required to be so produced or disclosed and the Stilwell Group informs the\nrecipient of such Confidential Information of the existence of this Agreement and the confidential nature of such Confidential Information; or\n(b) the Company consents in writing to having the Confidential Information produced or disclosed pursuant to the subpoena, legal process or\nother legal requirement.\n4. The Stilwell Group represents and warrants to the Company that this Agreement has been duly and validly authorized, executed and\ndelivered by the Stilwell Group, and is a valid and binding agreement enforceable against the Stilwell Group in accordance with its terms.\n5. The Company represents and warrants to the Stilwell Group that this Agreement has been duly and validly authorized, executed and\ndelivered by the Company, and is a valid and binding agreement enforceable against the Company in accordance with its terms.\n6. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic information of the\nCompany and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and that,\nin addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable relief as a remedy\nfor such breach, and agrees that in conjunction therewith the Company shall not be required to post any bond.\n7. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all\nprior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not referred to\nherein.\n8. This Agreement shall be effective upon the execution of the Agreement, and will remain in effect until the date that is fifteen\n(15) business days prior to the deadline for the submission of stockholder nominations and proposals for the Company’s 2022 Annual Meeting of\nStockholders pursuant to the Company’s Certificate of Incorporation, provided, however, that the parties may agree in writing to extend the term\nof this Agreement.\n9. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to choice of\nlaw principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby irrevocably consents to\nthe exclusive jurisdiction of the state and federal courts sitting in the State of Delaware to resolve any dispute arising from this Agreement and\nwaives any defense of inconvenient or improper forum.\n10. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion\nthereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\n2\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties. All representations, warranties, covenants and agreements\nmade herein shall survive the execution and delivery of this Agreement.\n11. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written\nagreement executed by all of the parties hereto.\n12. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one and\nthe same agreement.\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as of the\nday and year indicated below.\nTHE STILWELL GROUP\nBy:\nJoseph Stilwell\nManaging Member\nDated: April , 2018\nHOPFED BANCORP, INC.\nBy:\nMichael Woolfolk\nEVP, COO, Corporate Secretary\nDated: April , 2018\n3
+636c32d05549e3a5b8a561027f3f9f57.pdf	effective_date jurisdiction party term	EX-10.1 2 a17-24905_1ex10d1.htm EX-10.1\nExhibit 10.1\nOctober 31, 2017\nPERSONAL AND CONFIDENTIAL\nJeffrey M. Snider\nBy email\nDear Jeff:\nThis consulting agreement (“Agreement”) is effective as of January 1, 2018 (“Effective Date”), by and between Sonus Networks, Inc.,\nits successors and assigns (collectively, “Sonus”), and Jeffrey M. Snider (“Consultant”). Sonus and Consultant hereby agree to the following:\n1. Title, Term, and Termination. Sonus will retain Consultant as “Senior Consultant,” and Consultant will accept such retention,\ncommencing as of the Effective Date of this Agreement and terminating on September 30, 2018. This Agreement may be terminated by\nConsultant for any reason or no reason upon thirty (30) days written notice to Sonus. Sonus may terminate this Agreement only for cause.\n2. Compensation. Consultant shall be paid $20,000 per month during the term of this Agreement, as compensation for all services\nrendered. Consultant shall have the responsibility for the payment of all federal, state and local taxes for any compensation payable to\nConsultant hereunder; provided, however, to the extent required by law, the Company may withhold from compensation payable to Consultant\nall applicable federal, state and local withholding taxes.\n3. Independent Contractor. The parties agree that Consultant is an independent contractor, and no other relationship, status, or legal\norganization shall be implied or created by this Agreement. Consultant shall have no power or authority to bind the Company or act on behalf of\nthe Company in any manner.\n4. Confidential Information. The terms of the Non-Disclosure Agreement (“NDA”) between the Company and the Consultant of even\ndate herewith in the form attached hereto is hereby incorporated by reference. The terms of the Confidentiality, Non-Competition and\nAssignment of Inventions Agreement, earlier signed by Consultant as a full-time employee, shall survive the signature of the NDA.\n5. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of\nMassachusetts, without regard to its choice of law principles, and the parties agree that all disputes will be submitted to courts in Massachusetts.\n*\n*\n*\nSonus Networks, Inc.\nJeffrey M. Snider\n/s/ Raymond Dolan\n/s/ Jeffrey M. Snider\nSigned:\nSigned: Jeffrey M. Snider\nDate: October 31, 2017\nDate: October 31, 2017\nNon-Disclosure Agreement\nThis NON-DISCLOSURE AGREEMENT (“Agreement”), effective as of the date of execution by both parties (the “Effective Date”), is\nbetween Sonus Networks, Inc. including its subsidiaries and affiliates, successors and assigns, with offices located at 4 Technology Park Drive,\nWestford, Massachusetts 01886 (the “Company”) and Jeffrey M. Snider (the “Recipient”). The Company would like the Recipient to provide\nservices (“Services”) as a contractor or consultant to the Company and, to further these ends, the Company may disclose Confidential\nInformation (as defined below) to the Recipient to assist the Recipient in performing such Services. This Agreement covers information that has\nbeen previously disclosed by the Company and information that will be disclosed by the Company on or after the Effective Date.\n1.\n“Confidential Information” shall mean all commercially valuable, proprietary and confidential information and trade secrets with\nrespect to the Company’s business and products, whether of a technical, business or other nature (including, without limitation, know-how and\ninformation relating to the technology, customers, business plans, promotional and marketing activities, finances and other business affairs of\nCompany), that has been or is disclosed to Recipient or is otherwise learned by Recipient in the course of its discussions or business dealings\nwith, or its physical or electronic access to the premises of, the Company, and that has been identified as being proprietary and/or confidential or\nthat by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as proprietary and confidential.\n2.\nThe Recipient agrees that all Confidential Information of the Company shall (a) remain the secret and confidential property of\nCompany, which the Recipient will hold and protect in secrecy and confidence using all reasonable precautions including, but not limited to,\nusing precautions no less stringent than those employed by the Recipient to protect its own Confidential Information but in no event less than a\nreasonable degree of care; (b) not be used for any purpose other than evaluation and/or provision of the Services; (c) not be disclosed to any\nperson other than those employees or consultants of the Recipient who have a need to know the Confidential Information to perform the Services\n(and the Recipient shall be responsible for any breach of this Agreement by any of them); and (d) not be recorded or copied except to the extent\nspecifically authorized by the Company in writing. In addition, without prior written consent of the Company, the Recipient will not disclose the\nfact that the Services are being contemplated by or provided to the Company.\n3.\nThe restrictions set forth above shall not apply to information that the Recipient can establish (a) is now or subsequently becomes in\nthe public domain; (b) is lawfully received by the Recipient from a third party not bound in a confidential relationship to the Company; (c) was\nalready in the Recipient’s possession at the time such information was disclosed by the Company to the Recipient; or (d) was independently\ndeveloped by the Recipient without use of the information disclosed under this Agreement. If a portion or aspect of the Confidential Information\nbecomes generally known, only that portion or aspect shall not be governed by this Agreement and all other aspects of the Confidential\nInformation shall remain subject to the provisions of this Agreement.\n4.\nThe Recipient shall destroy or return to the Company, at the Company’s request, all Confidential Information (including, without\nlimitation, any copies, extracts or other reproductions in whole or in part of such Confidential Information) within ten (10) days of any such\nrequest by the Company and the individual or officer of the Recipient supervising such destruction shall certify in writing to the Company that\nsuch destruction occurred. Any oral Confidential Information shall be kept confidential subject to this Agreement.\n5.\nThe Recipient agrees not to decompile, reverse engineer or disassemble any portion of the Company’s products.\n6.\nAll information is provided “as is” and without any warranty, express, implied or otherwise, regarding its accuracy or performance.\n7.\nIf a Recipient becomes compelled by law or court order to disclose Confidential Information of the Company, the Recipient will\nprovide the Company with prompt notice of such requirement so the Company may seek a protective order or other appropriate remedy. If such\nprotective order or other remedy is not obtained, the Recipient agrees to furnish only that portion of the Confidential Information that it is\nadvised by legal counsel is required by applicable law or court order, and such disclosure will not result in any liability hereunder.\n8.\nThe Recipient acknowledges that any violation of this Agreement may have a material adverse effect upon, and result in irreparable\ndamage to, the Company and that, in the event of any such violation, without limiting any other available remedies, the Company shall be\nentitled to seek an injunction and other equitable relief, without the need for proving actual damages or the posting of a bond. No failure or delay\nby either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise or any right, power or privilege.\n9.\nThe Recipient certifies that none of the Company’s Confidential Information, or any portion thereof, will be exported to any country in\nviolation of any applicable export control laws or regulations.\n10.\nFrom time to time during the term of this Agreement, the Company may disclose information related to future products, features or\nenhancements in order to support and obtain feedback for the Company’s vision and strategy for development efforts and plans (“Product\nRoadmap”). Development efforts and plans are subject to change at any time, without notice. The Company provides no assurances that the\nCompany will introduce future products, features or enhancements described in a presentation containing Product Roadmap information, and the\nCompany assumes no responsibility to introduce such products, features or enhancements.\n11.\nThis Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and may only be amended\nby a writing signed by both parties. Either party may terminate this Agreement upon sixty (60) days written notice to the other party.\nNotwithstanding the foregoing, the obligations of the parties contained in this Agreement shall survive indefinitely and continue beyond the\ntermination of this Agreement. If any provision of this Agreement is found invalid or unenforceable under any applicable law, such invalidity or\nunenforceability shall not affect the validity or enforceability of the remaining portions of this Agreement. This Agreement will be governed by\nand construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its rules regarding conflicts of law. The\nparties irrevocably submit to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts. The language of this Agreement\nshall be construed as a whole, according to its fair meaning, not strictly for or against either party, with no regard whatsoever to the status of any\nperson who drafted all or any portion of this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed an\noriginal but all of which taken together shall be deemed to constitute one and the same instrument. This Agreement may not be assigned by\neither party.\n12.\nNotwithstanding any provision to the contrary, Recipient agrees to comply with all applicable laws with regard to its receipt, processing\nand holding of Discloser information, including without limitation employee information, and compliance with privacy laws.\nCOMPANY: SONUS NETWORKS, INC.\nBy:\n/s/ Matthew Thaler\nName: Matthew Thaler\nTitle: General Counsel\nDate: October 31, 2017\nJEFFREY M. SNIDER\nBy:\n/s/ Jeffrey M. Snider\nName: Jeffrey M. Snider\nDate: October 31, 2017	EX-10.1 2 a17-24905_1ex10d1.htm EX-10.1\nExhibit 10.1\nOctober 31, 2017\nPERSONAL AND CONFIDENTIAL\nJeffrey M. Snider\nBy email\nDear Jeff:\nThis consulting agreement (“Agreement”) is effective as of January 1, 2018 (“Effective Date), by and between Sonus Networks, Inc.,\nits successors and assigns (collectively, “Sonus”), and Jeffrey M. Snider (“Consultant”). Sonus and Consultant hereby agree to the following:\n1. Title, Term, and Termination. Sonus will retain Consultant as “Senior Consultant,” and Consultant will accept such retention,\ncommencing as of the Effective Date of this Agreement and terminating on September 30, 2018. This Agreement may be terminated by\nConsultant for any reason or no reason upon thirty (30) days written notice to Sonus. Sonus may terminate this Agreement only for cause.\n2. Compensation. Consultant shall be paid $20,000 per month during the term of this Agreement, as compensation for all services\nrendered. Consultant shall have the responsibility for the payment of all federal, state and local taxes for any compensation payable to\nConsultant hereunder; provided, however, to the extent required by law, the Company may withhold from compensation payable to Consultant\nall applicable federal, state and local withholding taxes.\n3. Independent Contractor. The parties agree that Consultant is an independent contractor, and no other relationship, status, or legal\norganization shall be implied or created by this Agreement. Consultant shall have no power or authority to bind the Company or act on behalf of\nthe Company in any manner.\n4. Confidential Information. The terms of the Non-Disclosure Agreement (“NDA”) between the Company and the Consultant of even\ndate herewith in the form attached hereto is hereby incorporated by reference. The terms of the Confidentiality, Non-Competition and\nAssignment of Inventions Agreement, earlier signed by Consultant as a full-time employee, shall survive the signature of the NDA.\n5. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of\nMassachusetts, without regard to its choice of law principles, and the parties agree that all disputes will be submitted to courts in Massachusetts.\n* * *\nSonus Networks, Inc. Jeffrey M. Snider\n/s/ Raymond Dolan /s/ Jeffrey M. Snider\nSigned: Signed: Jeffrey M. Snider\nDate: October 31, 2017 Date: October 31, 2017\n \nNon-Disclosure Agreement\nThis NON-DISCLOSURE AGREEMENT (“Agreement”), effective as of the date of execution by both parties (the “Effective Date”), is\nbetween Sonus Networks, Inc. including its subsidiaries and affiliates, successors and assigns, with offices located at 4 Technology Park Drive,\nWestford, Massachusetts 01886 (the “Company”) and Jeffrey M. Snider (the “Recipient”). The Company would like the Recipient to provide\nservices (“Services”) as a contractor or consultant to the Company and, to further these ends, the Company may disclose Confidential\nInformation (as defined below) to the Recipient to assist the Recipient in performing such Services. This Agreement covers information that has\nbeen previously disclosed by the Company and information that will be disclosed by the Company on or after the Effective Date.\n1. “Confidential Information” shall mean all commercially valuable, proprietary and confidential information and trade secrets with\nrespect to the Company’s business and products, whether of a technical, business or other nature (including, without limitation, know-how and\ninformation relating to the technology, customers, business plans, promotional and marketing activities, finances and other business affairs of\nCompany), that has been or is disclosed to Recipient or is otherwise learned by Recipient in the course of its discussions or business dealings\nwith, or its physical or electronic access to the premises of, the Company, and that has been identified as being proprietary and/or confidential or\nthat by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as proprietary and confidential.\n2. The Recipient agrees that all Confidential Information of the Company shall (a) remain the secret and confidential property of\nCompany, which the Recipient will hold and protect in secrecy and confidence using all reasonable precautions including, but not limited to,\nusing precautions no less stringent than those employed by the Recipient to protect its own Confidential Information but in no event less than a\nreasonable degree of care; (b) not be used for any purpose other than evaluation and/or provision of the Services; (c) not be disclosed to any\nperson other than those employees or consultants of the Recipient who have a need to know the Confidential Information to perform the Services\n(and the Recipient shall be responsible for any breach of this Agreement by any of them); and (d) not be recorded or copied except to the extent\nspecifically authorized by the Company in writing. In addition, without prior written consent of the Company, the Recipient will not disclose the\nfact that the Services are being contemplated by or provided to the Company.\n3. The restrictions set forth above shall not apply to information that the Recipient can establish (a) is now or subsequently becomes in\nthe public domain; (b) is lawfully received by the Recipient from a third party not bound in a confidential relationship to the Company; (c) was\nalready in the Recipient’s possession at the time such information was disclosed by the Company to the Recipient; or (d) was independently\ndeveloped by the Recipient without use of the information disclosed under this Agreement. If a portion or aspect of the Confidential Information\nbecomes generally known, only that portion or aspect shall not be governed by this Agreement and all other aspects of the Confidential\nInformation shall remain subject to the provisions of this Agreement.\n4. The Recipient shall destroy or return to the Company, at the Company’s request, all Confidential Information (including, without\nlimitation, any copies, extracts or other reproductions in whole or in part of such Confidential Information) within ten (10) days of any such\nrequest by the Company and the individual or officer of the Recipient supervising such destruction shall certify in writing to the Company that\nsuch destruction occurred. Any oral Confidential Information shall be kept confidential subject to this Agreement.\n5. The Recipient agrees not to decompile, reverse engineer or disassemble any portion of the Company’s products.\n6. All information is provided “as is” and without any warranty, express, implied or otherwise, regarding its accuracy or performance.\n7. If a Recipient becomes compelled by law or court order to disclose Confidential Information of the Company, the Recipient will\nprovide the Company with prompt notice of such requirement so the Company may seek a protective order or other appropriate remedy. If such\nprotective order or other remedy is not obtained, the Recipient agrees to furnish only that portion of the Confidential Information that it is\nadvised by legal counsel is required by applicable law or court order, and such disclosure will not result in any liability hereunder.\n8. The Recipient acknowledges that any violation of this Agreement may have a material adverse effect upon, and result in irreparable\ndamage to, the Company and that, in the event of any such violation, without limiting any other available remedies, the Company shall be\nentitled to seek an injunction and other equitable relief, without the need for proving actual damages or the posting of a bond. No failure or delay\nby either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise or any right, power or privilege.\n9. The Recipient certifies that none of the Company’s Confidential Information, or any portion thereof, will be exported to any country in\nviolation of any applicable export control laws or regulations.\n10. From time to time during the term of this Agreement, the Company may disclose information related to future products, features or\nenhancements in order to support and obtain feedback for the Company’s vision and strategy for development efforts and plans (“Product\nRoadmap”). Development efforts and plans are subject to change at any time, without notice. The Company provides no assurances that the\nCompany will introduce future products, features or enhancements described in a presentation containing Product Roadmap information, and the\nCompany assumes no responsibility to introduce such products, features or enhancements.\n11. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and may only be amended\nby a writing signed by both parties. Either party may terminate this Agreement upon sixty (60) days written notice to the other party.\nNotwithstanding the foregoing, the obligations of the parties contained in this Agreement shall survive indefinitely and continue beyond the\ntermination of this Agreement. If any provision of this Agreement is found invalid or unenforceable under any applicable law, such invalidity or\nunenforceability shall not affect the validity or enforceability of the remaining portions of this Agreement. This Agreement will be governed by\nand construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its rules regarding conflicts of law. The\nparties irrevocably submit to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts. The language of this Agreement\nshall be construed as a whole, according to its fair meaning, not strictly for or against either party, with no regard whatsoever to the status of any\nperson who drafted all or any portion of this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed an\noriginal but all of which taken together shall be deemed to constitute one and the same instrument. This Agreement may not be assigned by\neither party.\n12. Notwithstanding any provision to the contrary, Recipient agrees to comply with all applicable laws with regard to its receipt, processing\nand holding of Discloser information, including without limitation employee information, and compliance with privacy laws.\nCOMPANY: SONUS NETWORKS, INC.\nBy: /s/ Matthew Thaler\nName: Matthew Thaler\nTitle:  General Counsel\nDate:  October 31, 2017\nJEFFREY M. SNIDER\nBy: /s/ Jeffrey M. Snider\nName: Jeffrey M. Snider\nDate:  October 31, 2017\n	EX-10.1 2 a17-24905_1ex10d1.htm EX-10.1\nExhibit 10.1\nOctober 31, 2017\nPERSONAL AND CONFIDENTIAL\nJeffrey M. Snider\nBy email\nDear Jeff:\nThis consulting agreement ("Agreement") is effective as of January 1, 2018 ("Effective Date"), by and between Sonus Networks, Inc.,\nits successors and assigns (collectively, "Sonus"), and Jeffrey M. Snider ("Consultant"). Sonus and Consultant hereby agree to the following:\n1. Title, Term, and Termination. Sonus will retain Consultant as "Senior Consultant," and Consultant will accept such retention,\ncommencing as of the Effective Date of this Agreement and terminating on September 30, 2018. This Agreement may be terminated by\nConsultant for any reason or no reason upon thirty (30) days written notice to Sonus. Sonus may terminate this Agreement only for cause.\n2. Compensation. Consultant shall be paid $20,000 per month during the term of this Agreement, as compensation for all services\nrendered. Consultant shall have the responsibility for the payment of all federal, state and local taxes for any compensation payable to\nConsultant hereunder; provided, however, to the extent required by law, the Company may withhold from compensation payable to Consultant\nall applicable federal, state and local withholding taxes.\n3. Independent Contractor. The parties agree that Consultant is an independent contractor, and no other relationship, status, or legal\norganization shall be implied or created by this Agreement. Consultant shall have no power or authority to bind the Company or act on behalf of\nthe Company in any manner.\n4. Confidential Information. The terms of the Non-Disclosure Agreement ("NDA") between the Company and the Consultant of even\ndate herewith in the form attached hereto is hereby incorporated by reference. The terms of the Confidentiality, Non-Competition and\nAssignment of Inventions Agreement, earlier signed by Consultant as a full-time employee, shall survive the signature of the NDA.\n5. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of\nMassachusetts, without regard to its choice of law principles, and the parties agree that all disputes will be submitted to courts in Massachusetts.\nSonus Networks, Inc.\nJeffrey M. Snider\n/s/ Raymond Dolan\n/s/ Jeffrey M. Snider\nSigned:\nSigned: Jeffrey M. Snider\nDate: October 31, 2017\nDate: October 31, 2017\nNon-Disclosure Agreement\nThis NON-DISCLOSURE AGREEMENT ("Agreement"), effective as of the date of execution by both parties (the "Effective Date"), is\nbetween Sonus Networks, Inc. including its subsidiaries and affiliates, successors and assigns, with offices located at 4 Technology Park Drive,\nWestford, Massachusetts 01886 (the "Company") and Jeffrey M. Snider (the "Recipient"). The Company would like the Recipient to provide\nservices ("Services") as a contractor or consultant to the Company and, to further these ends, the Company may disclose Confidential\nInformation (as defined below) to the Recipient to assist the Recipient in performing such Services. This Agreement covers information that has\nbeen previously disclosed by the Company and information that will be disclosed by the Company on or after the Effective Date.\n1.\n"Confidential Information" shall mean all commercially valuable, proprietary and confidential information and trade secrets with\nrespect to the Company's business and products, whether of a technical, business or other nature (including, without limitation, know-how and\ninformation relating to the technology, customers, business plans, promotional and marketing activities, finances and other business affairs of\nCompany), that has been or is disclosed to Recipient or is otherwise learned by Recipient in the course of its discussions or business dealings\nwith, or its physical or electronic access to the premises of, the Company, and that has been identified as being proprietary and/or confidential or\nthat by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as proprietary and confidential.\n2.\nThe Recipient agrees that all Confidential Information of the Company shall (a) remain the secret and confidential property of\nCompany, which the Recipient will hold and protect in secrecy and confidence using all reasonable precautions including, but not limited to,\nusing precautions no less stringent than those employed by the Recipient to protect its own Confidential Information but in no event less than a\nreasonable degree of care; (b) not be used for any purpose other than evaluation and/or provision of the Services; (c) not be disclosed to any\nperson other than those employees or consultants of the Recipient who have a need to know the Confidential Information to perform the Services\n(and the Recipient shall be responsible for any breach of this Agreement by any of them); and (d) not be recorded or copied except to the extent\nspecifically authorized by the Company in writing. In addition, without prior written consent of the Company, the Recipient will not disclose the\nfact that the Services are being contemplated by or provided to the Company.\n3.\nThe restrictions set forth above shall not apply to information that the Recipient can establish (a) is now or subsequently becomes\nin\nthe public domain; (b) is lawfully received by the Recipient from a third party not bound in a confidential relationship to the Company; (c) was\nalready in the Recipient's possession at the time such information was disclosed by the Company to the Recipient; or (d) was independently\ndeveloped by the Recipient without use of the information disclosed under this Agreement. If a portion or aspect of the Confidential Information\nbecomes generally known, only that portion or aspect shall not be governed by this Agreement and all other aspects of the Confidential\nInformation shall remain subject to the provisions of this Agreement.\n4.\nThe Recipient shall destroy or return to the Company, at the Company's request, all Confidential Information (including, without\nlimitation, any copies, extracts or other reproductions in whole or in part of such Confidential Information) within ten (10) days of any such\nrequest by the Company and the individual or officer of the Recipient supervising such destruction shall certify in writing to the Company that\nsuch destruction occurred. Any oral Confidential Information shall be kept confidential subject to this Agreement.\n5.\nThe Recipient agrees not to decompile, reverse engineer or disassemble any portion of the Company's products.\n6.\nAll information is provided "as is" and without any warranty, express, implied or otherwise, regarding its accuracy or performance.\n7.\nIf a Recipient becomes compelled by law or court order to disclose Confidential Information of the Company, the Recipient will\nprovide the Company with prompt notice of such requirement so the Company may seek a protective order or other appropriate remedy. If such\nprotective order or other remedy is not obtained, the Recipient agrees to furnish only that portion of the Confidential Information that it is\nadvised by legal counsel is required by applicable law or court order, and such disclosure will not result in any liability hereunder.\n8.\nThe Recipient acknowledges that any violation of this Agreement may have a material adverse effect upon, and result in irreparable\ndamage to, the Company and that, in the event of any such violation, without limiting any other available remedies, the Company shall be\nentitled to seek an injunction and other equitable relief, without the need for proving actual damages or the posting of a bond. No failure or delay\nby either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise or any right, power or privilege.\n9.\nThe Recipient certifies that none of the Company's Confidential Information, or any portion thereof, will be exported to any country in\nviolation of any applicable export control laws or regulations.\n10.\nFrom time to time during the term of this Agreement, the Company may disclose information related to future products, features or\nenhancements in order to support and obtain feedback for the Company's vision and strategy for development efforts and plans ("Product\nRoadmap"). Development efforts and plans are subject to change at any time, without notice. The Company provides no assurances that the\nCompany will introduce future products, features or enhancements described in a presentation containing Product Roadmap information, and the\nCompany assumes no responsibility to introduce such products, features or enhancements.\n11.\nThis Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and may only be amended\nby a writing signed by both parties. Either party may terminate this Agreement upon sixty (60) days written notice to the other party.\nNotwithstanding the foregoing, the obligations of the parties contained in this Agreement shall survive indefinitely and continue beyond the\ntermination of this Agreement. If any provision of this Agreement is found invalid or unenforceable under any applicable law, such invalidity\nor\nunenforceability shall not affect the validity or enforceability of the remaining portions of this Agreement. This Agreement will be governed\nby\nand construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its rules regarding conflicts of law. The\nparties irrevocably submit to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts. The language of this Agreement\nshall\nbe\nconstrued\nas\na\nwhole,\naccording\nto\nits\nfair\nmeaning,\nnot\nstrictly\nfor\nor\nagainst\neither\nparty,\nwith\nno\nregard\nwhatsoever\nto\nthe\nstatus\nof\nany\nperson who drafted all or any portion of this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed\nan\noriginal but all of which taken together shall be deemed to constitute one and the same instrument. This Agreement may not be assigned by\neither party.\n12.\nNotwithstanding any provision to the contrary, Recipient agrees to comply with all applicable laws with regard to its receipt, processing\nand holding of Discloser information, including without limitation employee information, and compliance with privacy laws.\nCOMPANY: SONUS NETWORKS, INC.\nBy:\n/s/ Matthew Thaler\nName: Matthew Thaler\nTitle:\nGeneral Counsel\nDate:\nOctober 31, 2017\nJEFFREY M. SNIDER\nBy:\n/s/ Jeffrey M. Snider\nName: Jeffrey M. Snider\nDate: October 31, 2017	EX-10.1 2 a17-24905_1ex10d1.htm EX-10.1\nExhibit 10.1\nOctober 31, 2017\nPERSONAL AND CONFIDENTIAL\nJeffrey M. Snider\nBy email\nDear Jeff:\nThis consulting agreement (“Agreement”) is effective as of January 1, 2018 (“Effective Date”), by and between Sonus Networks, Inc.,\nits successors and assigns (collectively, “Sonus”), and Jeffrey M. Snider (“Consultant”). Sonus and Consultant hereby agree to the following:\n1. Title, Term, and Termination. Sonus will retain Consultant as “Senior Consultant,” and Consultant will accept such retention,\ncommencing as of the Effective Date of this Agreement and terminating on September 30, 2018. This Agreement may be terminated by\nConsultant for any reason or no reason upon thirty (30) days written notice to Sonus. Sonus may terminate this Agreement only for cause.\n2. Compensation. Consultant shall be paid $20,000 per month during the term of this Agreement, as compensation for all services\nrendered. Consultant shall have the responsibility for the payment of all federal, state and local taxes for any compensation payable to\nConsultant hereunder; provided, however, to the extent required by law, the Company may withhold from compensation payable to Consultant\nall applicable federal, state and local withholding taxes.\n3. Independent Contractor. The parties agree that Consultant is an independent contractor, and no other relationship, status, or legal\norganization shall be implied or created by this Agreement. Consultant shall have no power or authority to bind the Company or act on behalf of\nthe Company in any manner.\n4. Confidential Information. The terms of the Non-Disclosure Agreement (“NDA”) between the Company and the Consultant of even\ndate herewith in the form attached hereto is hereby incorporated by reference. The terms of the Confidentiality, Non-Competition and\nAssignment of Inventions Agreement, earlier signed by Consultant as a full-time employee, shall survive the signature of the NDA.\n5. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of\nMassachusetts, without regard to its choice of law principles, and the parties agree that all disputes will be submitted to courts in Massachusetts.\n*\n*\n*\nSonus Networks, Inc.\nJeffrey M. Snider\n/s/ Raymond Dolan\n/s/ Jeffrey M. Snider\nSigned:\nSigned: Jeffrey M. Snider\nDate: October 31, 2017\nDate: October 31, 2017\nNon-Disclosure Agreement\nThis NON-DISCLOSURE AGREEMENT (“Agreement”), effective as of the date of execution by both parties (the “Effective Date”), is\nbetween Sonus Networks, Inc. including its subsidiaries and affiliates, successors and assigns, with offices located at 4 Technology Park Drive,\nWestford, Massachusetts 01886 (the “Company”) and Jeffrey M. Snider (the “Recipient”). The Company would like the Recipient to provide\nservices (“Services”) as a contractor or consultant to the Company and, to further these ends, the Company may disclose Confidential\nInformation (as defined below) to the Recipient to assist the Recipient in performing such Services. This Agreement covers information that has\nbeen previously disclosed by the Company and information that will be disclosed by the Company on or after the Effective Date.\n1.\n“Confidential Information” shall mean all commercially valuable, proprietary and confidential information and trade secrets with\nrespect to the Company’s business and products, whether of a technical, business or other nature (including, without limitation, know-how and\ninformation relating to the technology, customers, business plans, promotional and marketing activities, finances and other business affairs of\nCompany), that has been or is disclosed to Recipient or is otherwise learned by Recipient in the course of its discussions or business dealings\nwith, or its physical or electronic access to the premises of, the Company, and that has been identified as being proprietary and/or confidential or\nthat by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as proprietary and confidential.\n2.\nThe Recipient agrees that all Confidential Information of the Company shall (a) remain the secret and confidential property of\nCompany, which the Recipient will hold and protect in secrecy and confidence using all reasonable precautions including, but not limited to,\nusing precautions no less stringent than those employed by the Recipient to protect its own Confidential Information but in no event less than a\nreasonable degree of care; (b) not be used for any purpose other than evaluation and/or provision of the Services; (c) not be disclosed to any\nperson other than those employees or consultants of the Recipient who have a need to know the Confidential Information to perform the Services\n(and the Recipient shall be responsible for any breach of this Agreement by any of them); and (d) not be recorded or copied except to the extent\nspecifically authorized by the Company in writing. In addition, without prior written consent of the Company, the Recipient will not disclose the\nfact that the Services are being contemplated by or provided to the Company.\n3.\nThe restrictions set forth above shall not apply to information that the Recipient can establish (a) is now or subsequently becomes in\nthe public domain; (b) is lawfully received by the Recipient from a third party not bound in a confidential relationship to the Company; (c) was\nalready in the Recipient’s possession at the time such information was disclosed by the Company to the Recipient; or (d) was independently\ndeveloped by the Recipient without use of the information disclosed under this Agreement. If a portion or aspect of the Confidential Information\nbecomes generally known, only that portion or aspect shall not be governed by this Agreement and all other aspects of the Confidential\nInformation shall remain subject to the provisions of this Agreement.\n4.\nThe Recipient shall destroy or return to the Company, at the Company’s request, all Confidential Information (including, without\nlimitation, any copies, extracts or other reproductions in whole or in part of such Confidential Information) within ten (10) days of any such\nrequest by the Company and the individual or officer of the Recipient supervising such destruction shall certify in writing to the Company that\nsuch destruction occurred. Any oral Confidential Information shall be kept confidential subject to this Agreement.\n5.\nThe Recipient agrees not to decompile, reverse engineer or disassemble any portion of the Company’s products.\n6.\nAll information is provided “as is” and without any warranty, express, implied or otherwise, regarding its accuracy or performance.\n7.\nIf a Recipient becomes compelled by law or court order to disclose Confidential Information of the Company, the Recipient will\nprovide the Company with prompt notice of such requirement so the Company may seek a protective order or other appropriate remedy. If such\nprotective order or other remedy is not obtained, the Recipient agrees to furnish only that portion of the Confidential Information that it is\nadvised by legal counsel is required by applicable law or court order, and such disclosure will not result in any liability hereunder.\n8.\nThe Recipient acknowledges that any violation of this Agreement may have a material adverse effect upon, and result in irreparable\ndamage to, the Company and that, in the event of any such violation, without limiting any other available remedies, the Company shall be\nentitled to seek an injunction and other equitable relief, without the need for proving actual damages or the posting of a bond. No failure or delay\nby either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise or any right, power or privilege.\n9.\nThe Recipient certifies that none of the Company’s Confidential Information, or any portion thereof, will be exported to any country in\nviolation of any applicable export control laws or regulations.\n10.\nFrom time to time during the term of this Agreement, the Company may disclose information related to future products, features or\nenhancements in order to support and obtain feedback for the Company’s vision and strategy for development efforts and plans (“Product\nRoadmap”). Development efforts and plans are subject to change at any time, without notice. The Company provides no assurances that the\nCompany will introduce future products, features or enhancements described in a presentation containing Product Roadmap information, and the\nCompany assumes no responsibility to introduce such products, features or enhancements.\n11.\nThis Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and may only be amended\nby a writing signed by both parties. Either party may terminate this Agreement upon sixty (60) days written notice to the other party.\nNotwithstanding the foregoing, the obligations of the parties contained in this Agreement shall survive indefinitely and continue beyond the\ntermination of this Agreement. If any provision of this Agreement is found invalid or unenforceable under any applicable law, such invalidity or\nunenforceability shall not affect the validity or enforceability of the remaining portions of this Agreement. This Agreement will be governed by\nand construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its rules regarding conflicts of law. The\nparties irrevocably submit to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts. The language of this Agreement\nshall be construed as a whole, according to its fair meaning, not strictly for or against either party, with no regard whatsoever to the status of any\nperson who drafted all or any portion of this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed an\noriginal but all of which taken together shall be deemed to constitute one and the same instrument. This Agreement may not be assigned by\neither party.\n12.\nNotwithstanding any provision to the contrary, Recipient agrees to comply with all applicable laws with regard to its receipt, processing\nand holding of Discloser information, including without limitation employee information, and compliance with privacy laws.\nCOMPANY: SONUS NETWORKS, INC.\nBy:\n/s/ Matthew Thaler\nName: Matthew Thaler\nTitle: General Counsel\nDate: October 31, 2017\nJEFFREY M. SNIDER\nBy:\n/s/ Jeffrey M. Snider\nName: Jeffrey M. Snider\nDate: October 31, 2017
+64303e5aa502b04df2755968eecdc2f5.pdf	effective_date jurisdiction party term	EXHIBIT B\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this “Agreement”), is made and entered into as of the date on which it is fully executed,\nas indicated by signatures below, by and among Naugatuck Valley Financial Corporation (the “Company”), the Stilwell Group (composed of\nStilwell Value Partners II, L.P., Stilwell Value Partners VII, L.P., Stilwell Partners, L.P., Stilwell Value LLC, Stilwell Activist Fund, L.P., Stilwell\nActivist Investments, L.P., and Joseph Stilwell, an individual, and their employees and representatives), and ______________, a director whose\nname was placed in nomination by the Stilwell Group (“Director”).\nWHEREAS, the Director is a member of the Board of Directors of the Company and its wholly owned subsidiary, Naugatuck Valley\nSavings and Loan (the “Bank”);\nWHEREAS, the Company, the Stilwell Group and the Director have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree\nas follows:\n1. In connection with the Director serving on the Boards of Directors of the Company and the Bank, the Director and other Company\nemployees, directors, and agents may divulge nonpublic information concerning the Company and its subsidiaries to the Stilwell Group and such\ninformation may be shared among the Stilwell Group's employees and agents who have a need to know such information. The Stilwell Group\nexpressly agrees to maintain all nonpublic information concerning the Company and its subsidiaries in confidence. The Stilwell Group expressly\nacknowledges that federal and state securities laws may prohibit a person from purchasing or selling securities of a company, or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such other person is likely to\npurchase or sell such securities, while the first-mentioned person is in possession of material nonpublic information about such company. The\nStilwell Group agrees to comply with the Company's insider trading policies and procedures, as in effect from time to time, to the same extent as\nif it were a director of the Company. To the extent the nonpublic information concerning the Company and its subsidiaries received by the\nStilwell Group is material, this Agreement is intended to satisfy the confidentiality agreement exclusion of Regulation FD of the U.S. Securities\nand Exchange Commission (the “SEC”) set forth in Rule 100(b)(2)(ii) of Regulation FD of the SEC.\n2. Each of the Stilwell Group and the Director represents and warrants to the Company that this Agreement has been duly and validly\nauthorized (in the case of the entity members of the Stilwell Group), executed and delivered by them, and is a valid and binding agreement\nenforceable against them in accordance with its terms.\n3. The Director hereby further confirms to the Company that no event has occurred with respect to the Director that would require\ndisclosure in a document filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act\nof 1934, as amended, under Item 401(f) or Item 404(a) of SEC Regulation S-K.\n4. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic information of the\nCompany and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and that,\nin addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable relief as a remedy\nfor such breach, and agrees that in conjunction therewith the Company shall not be required to post any bond.\n5. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all\nprior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not referred to\nherein.\n6. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Connecticut, without regard to\nchoice of law principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby irrevocably\nconsents to the exclusive jurisdiction of the state and federal courts sitting in the State of Connecticut to resolve any dispute arising from this\nAgreement and waives any defense of inconvenient or improper forum.\n7. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion\nthereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8. All representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Agreement.\n9. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written\nagreement executed by all of the parties hereto.\n10. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one\nand the same agreement.\n14\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as of\nthe day and year first above written.\nTHE STILWELL GROUP\nNAUGATUCK VALLEY FINANCIAL CORPORATION\n_________________________\n_______________________________\nBy:\nDate:\nJoseph Stilwell\n__________\n__, 2014\nBy:\nDate:\nWilliam C. Calderara, President and\nChief Executive Officer\n___________\n__, 2014\nDIRECTOR\nDate: ___________ __, 2014\n15	EXHIBIT B\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this “Agreement”), is made and entered into as of the date on which it is fully executed,\nas indicated by signatures below, by and among Naugatuck Valley Financial Corporation (the “Company”), the Stilwell Group (composed of\nStilwell Value Partners II, L.P., Stilwell Value Partners VII, L.P., Stilwell Partners, L.P., Stilwell Value LLC, Stilwell Activist Fund, L.P., Stilwell\nActivist Investments, L.P., and Joseph Stilwell, an individual, and their employees and representatives), and , a director whose\nname was placed in nomination by the Stilwell Group (“Director”).\nWHEREAS, the Director is a member of the Board of Directors of the Company and its wholly owned subsidiary, Naugatuck Valley\nSavings and Loan (the “Bank™);\nWHEREAS, the Company, the Stilwell Group and the Director have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree\nas follows:\n1. In connection with the Director serving on the Boards of Directors of the Company and the Bank, the Director and other Company\nemployees, directors, and agents may divulge nonpublic information concerning the Company and its subsidiaries to the Stilwell Group and such\ninformation may be shared among the Stilwell Group's employees and agents who have a need to know such information. The Stilwell Group\nexpressly agrees to maintain all nonpublic information concerning the Company and its subsidiaries in confidence. The Stilwell Group expressly\nacknowledges that federal and state securities laws may prohibit a person from purchasing or selling securities of a company, or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such other person is likely to\npurchase or sell such securities, while the first-mentioned person is in possession of material nonpublic information about such company. The\nStilwell Group agrees to comply with the Company's insider trading policies and procedures, as in effect from time to time, to the same extent as\nif it were a director of the Company. To the extent the nonpublic information concerning the Company and its subsidiaries received by the\nStilwell Group is material, this Agreement is intended to satisfy the confidentiality agreement exclusion of Regulation FD of the U.S. Securities\nand Exchange Commission (the “SEC”) set forth in Rule 100(b)(2)(ii) of Regulation FD of the SEC.\n2. Each of the Stilwell Group and the Director represents and warrants to the Company that this Agreement has been duly and validly\nauthorized (in the case of the entity members of the Stilwell Group), executed and delivered by them, and is a valid and binding agreement\nenforceable against them in accordance with its terms.\n3. The Director hereby further confirms to the Company that no event has occurred with respect to the Director that would require\ndisclosure in a document filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act\nof 1934, as amended, under Item 401(f) or Item 404(a) of SEC Regulation S-K.\n4. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic information of the\nCompany and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and that,\nin addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable relief as a remedy\nfor such breach, and agrees that in conjunction therewith the Company shall not be required to post any bond.\n5. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all\nprior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not referred to\nherein.\n6. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Connecticut, without regard to\nchoice of law principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby irrevocably\nconsents to the exclusive jurisdiction of the state and federal courts sitting in the State of Connecticut to resolve any dispute arising from this\nAgreement and waives any defense of inconvenient or improper forum.\n7. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion\nthereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8. All representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Agreement.\n9. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written\nagreement executed by all of the parties hereto.\n10. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one\nand the same agreement.\n14\nIN WITNESS WHEREQOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as of\nthe day and year first above written.\n \n \nTHE STILWELL GROUP NAUGATUCK VALLEY FINANCIAL CORPORATION\nBy: Joseph Stilwell By: William C. Calderara, President and\nDate: _,2014 Chief Executive Officer\nDate: _,2014\nDIRECTOR\nDate: _,2014\n15	EXHIBIT B\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this "Agreement"), is made and entered into as of the date on which it is fully executed,\nas indicated by signatures below, by and among Naugatuck Valley Financial Corporation (the "Company"), the Stilwell Group (composed of\nStilwell Value Partners II, L.P., Stilwell Value Partners VII, L.P., Stilwell Partners, L.P., Stilwell Value LLC, Stilwell Activist Fund, L.P., Stilwell\nActivist Investments, L.P., and Joseph Stilwell, an individual, and their employees and representatives), and\na director whose\nname was placed in nomination by the Stilwell Group ("Director").\nWHEREAS, the Director is a member of the Board of Directors of the Company and its wholly owned subsidiary, Naugatuck Valley\nSavings and Loan (the "Bank");\nWHEREAS, the Company, the Stilwell Group and the Director have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree\nas follows:\n1. In connection with the Director serving on the Boards of Directors of the Company and the Bank, the Director and other Company\nemployees,\ndirectors,\nand\nagents\nmay\ndivulge\nnonpublic\ninformation\nconcerning\nthe\nCompany\nand\nits\nsubsidiaries\nto\nthe\nStilwell\nGroup\nand\nsuch\ninformation may be shared among the Stilwell Group's employees and agents who have a need to know such information. The Stilwell Group\nexpressly agrees to maintain all nonpublic information concerning the Company and its subsidiaries in confidence. The Stilwell Group expressly\nacknowledges that federal and state securities laws may prohibit a person from purchasing or selling securities of a company, or\nfrom\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such other person is likely to\npurchase or sell such securities, while the first-mentioned person is in possession of material nonpublic information about such company. The\nStilwell\nGroup\nagrees\nto\ncomply\nwith\nthe\nCompany's\ninsider\ntrading\npolicies\nand\nprocedures,\nas\nin\neffect\nfrom\ntime\nto\ntime,\nto\nthe\nsame\nextent\nas\nif it were a director of the Company. To the extent the nonpublic information concerning the Company and its subsidiaries received by the\nStilwell Group is material, this Agreement is intended to satisfy the confidentiality agreement exclusion of Regulation FD of the U.S. Securities\nand Exchange Commission (the "SEC") set forth in Rule 100(b)(2)(ii) of Regulation FD of the SEC.\n2. Each of the Stilwell Group and the Director represents and warrants to the Company that this Agreement has been duly and validly\nauthorized (in the case of the entity members of the Stilwell Group), executed and delivered by them, and is a valid and binding agreement\nenforceable against them in accordance with its terms.\n3. The Director hereby further confirms to the Company that no event has occurred with respect to the Director that would require\ndisclosure in a document filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act\nof 1934, as amended, under Item 401(f) or Item 404(a) of SEC Regulation S-K.\n4. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic information of the\nCompany and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and that,\nin addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable relief as a remedy\nfor\nsuch breach, and agrees that in conjunction therewith the Company shall not be required to post any bond.\n5. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all\nprior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not referred to\nherein.\n6. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Connecticut, without regard to\nchoice\nof\nlaw\nprinciples\nthat\nmay\notherwise\ncompel\nthe\napplication\nof\nthe\nlaws\nof\nany\nother\njurisdiction.\nEach\nof\nthe\nparties\nhereby\nirrevocably\nconsents to the exclusive jurisdiction of the state and federal courts sitting in the State of Connecticut to resolve any dispute arising from this\nAgreement and waives any defense of inconvenient or improper forum.\n7. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion\nthereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8. All representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Agreement.\n9.\nThis Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written\nagreement executed by all of the parties hereto.\n10. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one\nand the same agreement.\nah\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as of\nthe day and year first above written.\nTHE STILWELL GROUP\nNAUGATUCK VALLEY FINANCIAL CORPORATION\nBy:\nJoseph Stilwell\nBy:\nWilliam C. Calderara, President and\nDate:\n, 2014\nChief Executive Officer\nDate:\nL> 2014\nDIRECTOR\nDate:\n) 2014\n15	EXHIBIT B\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this “Agreement”), is made and entered into as of the date on which it is fully executed,\nas indicated by signatures below, by and among Naugatuck Valley Financial Corporation (the “Company”), the Stilwell Group (composed of\nStilwell Value Partners II, L.P., Stilwell Value Partners VII, L.P., Stilwell Partners, L.P., Stilwell Value LLC, Stilwell Activist Fund, L.P., Stilwell\nActivist Investments, L.P., and Joseph Stilwell, an individual, and their employees and representatives), and ______________, a director whose\nname was placed in nomination by the Stilwell Group (“Director”).\nWHEREAS, the Director is a member of the Board of Directors of the Company and its wholly owned subsidiary, Naugatuck Valley\nSavings and Loan (the “Bank”);\nWHEREAS, the Company, the Stilwell Group and the Director have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree\nas follows:\n1. In connection with the Director serving on the Boards of Directors of the Company and the Bank, the Director and other Company\nemployees, directors, and agents may divulge nonpublic information concerning the Company and its subsidiaries to the Stilwell Group and such\ninformation may be shared among the Stilwell Group's employees and agents who have a need to know such information. The Stilwell Group\nexpressly agrees to maintain all nonpublic information concerning the Company and its subsidiaries in confidence. The Stilwell Group expressly\nacknowledges that federal and state securities laws may prohibit a person from purchasing or selling securities of a company, or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such other person is likely to\npurchase or sell such securities, while the first-mentioned person is in possession of material nonpublic information about such company. The\nStilwell Group agrees to comply with the Company's insider trading policies and procedures, as in effect from time to time, to the same extent as\nif it were a director of the Company. To the extent the nonpublic information concerning the Company and its subsidiaries received by the\nStilwell Group is material, this Agreement is intended to satisfy the confidentiality agreement exclusion of Regulation FD of the U.S. Securities\nand Exchange Commission (the “SEC”) set forth in Rule 100(b)(2)(ii) of Regulation FD of the SEC.\n2. Each of the Stilwell Group and the Director represents and warrants to the Company that this Agreement has been duly and validly\nauthorized (in the case of the entity members of the Stilwell Group), executed and delivered by them, and is a valid and binding agreement\nenforceable against them in accordance with its terms.\n3. The Director hereby further confirms to the Company that no event has occurred with respect to the Director that would require\ndisclosure in a document filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act\nof 1934, as amended, under Item 401(f) or Item 404(a) of SEC Regulation S-K.\n4. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic information of the\nCompany and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and that,\nin addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable relief as a remedy\nfor such breach, and agrees that in conjunction therewith the Company shall not be required to post any bond.\n5. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all\nprior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not referred to\nherein.\n6. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Connecticut, without regard to\nchoice of law principles that may otherwise compel the application of the laws of any other jurisdiction. Each of the parties hereby irrevocably\nconsents to the exclusive jurisdiction of the state and federal courts sitting in the State of Connecticut to resolve any dispute arising from this\nAgreement and waives any defense of inconvenient or improper forum.\n7. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion\nthereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8. All representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Agreement.\n9. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written\nagreement executed by all of the parties hereto.\n10. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one\nand the same agreement.\n14\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as of\nthe day and year first above written.\nTHE STILWELL GROUP\nNAUGATUCK VALLEY FINANCIAL CORPORATION\n_________________________\n_______________________________\nBy:\nDate:\nJoseph Stilwell\n__________\n__, 2014\nBy:\nDate:\nWilliam C. Calderara, President and\nChief Executive Officer\n___________\n__, 2014\nDIRECTOR\nDate: ___________ __, 2014\n15
+6551a0da78ee55db14d5a49e9e25120a.pdf	effective_date jurisdiction party term	EX-99.(E)(6) 2 dex99e6.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT (e)(6)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY A GREEMENT (this “Agreement”) is being entered into as of May 11, 2006, between BIOSITE INCORPORATED\n(“Biosite”), on the one hand, and BECKMAN COULTER, INC. (together with its subsidiaries and affiliates, “Beckman Coulter”), on the other hand.\nIn order to facilitate the consideration and negotiation of a possible strategic transaction involving Biosite and Beckman Coulter (referred to\ncollectively as the “Parties” and individually as a “Party”) separate from the ongoing business relationship between the Parties, each Party has\nrequested access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to\nin this Agreement as the “Recipient.”) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and\nregarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Definitions. For purposes of this Agreement:\n(a) a Party’s “Representatives” will be deemed to include each Person that is or becomes: (i) a subsidiary or other affiliate of such Party;\nor (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries\nor other affiliates.\n(b) the term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n2. Confidential Information. For purposes of this Agreement, each Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has been made available to the Recipient\nor any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly\nupon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information\nwas not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person\nwith respect to any of such information; or\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient or any of the Recipient’s Representatives without reliance\non the information received from Provider or any of the Provider’s Representatives hereunder, as evidenced by written records.\n3. Limitations on Use and Disclosure of Confidential Information. Subject to section 5 below, neither the Recipient nor any of the\nRecipient’s Representatives will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information, except for the specific purpose of considering, evaluating and\nnegotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person.\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on\nthe part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.\n4. No Representations by Provider. The Representatives of each Provider will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of\nthe Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of the Provider’s Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive\nwritten agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties\n(a “Definitive Agreement”) will have legal effect.\n5. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 3 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof;\n(ii) subject to section 5(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative: (A) needs to know such Confidential Information for the purpose of helping the Recipient\nevaluate or negotiate a possible negotiated transaction between the Parties; and (B) has been informed of the obligations set forth in this Agreement\nand has agreed to abide and be bound by the provisions hereof; and\n(iii) subject to section 5(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by subpoena or other valid legal process.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be\ndisclosed only to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in section 5(a)(ii) above, the\nRecipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient’s Representatives is required by applicable law or governmental regulation or by subpoena or\nother valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the\nProvider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy.\nThe Recipient and its Representatives will use reasonable efforts to cooperate with the Provider and the Provider’s Representatives in any attempt by\nthe Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such\nprotective order or other remedy in connection with any requirement that the Recipient disclose\nConfidential Information of the Provider, and if the Recipient has been advised by its internal counsel or other reputable external legal counsel\nconfirming that the disclosure of such Confidential Information is legally required, then the Recipient may disclose such Confidential Information to\nthe extent legally required; provided, however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such\nConfidential Information is treated confidentially by each Person to whom it is disclosed.\n6. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver\nto the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the\nRecipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any written materials of the type described in clause “(b)”\nof the first sentence of section 2 above, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their\ndestruction. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant\nto this section 6, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n7. Standstill Provision. During the 18-month period commencing on the date of this Agreement (the “Standstill Period”), neither Beckman\nCoulter nor any entity controlling, controlled by or under common control with Beckman Coulter will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Biosite or any securities\nof any subsidiary or other affiliate of Biosite, (ii) any acquisition of any assets of Biosite or any assets of any subsidiary or other affiliate of Biosite,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary\ntransaction involving Biosite or any subsidiary or other affiliate of Biosite, or involving any securities or assets of Biosite or any securities or assets\nof any subsidiary or other affiliate of Biosite, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and\nExchange Commission) or consents with respect to any securities of Biosite;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Biosite;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Biosite;\n(d) take any action that might require Biosite to make a public announcement regarding any of the types of matters set forth in clause\n“(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)”\nor “(d)” of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of\nthis sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Biosite or any of Biosite’s Representatives amend, waive or consider the amendment or waiver of any\nprovision set forth in this section 7.\nIn the event that Biosite enters into a definitive agreement with any other Person or entity involving a merger or sale of the majority of the\noutstanding securities or assets of Biosite to a third party, following Biosite’s announcement of such definitive agreement Beckman Coulter shall be\nreleased from any and all of the restrictions and obligations contained in this paragraph; provided, however, that any such release shall not be\ndeemed a waiver of any prior breach under this paragraph.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.\n8. Limitation on Soliciting Employees. During the 12-month period commencing on the date of this Agreement, Beckman Coulter will not\npermit any of its Representatives or any subsidiary or affiliate thereof who is or becomes aware of the consideration or negotiation of a possible\ntransaction between the Parties to solicit for employment with such Party or any of its subsidiaries or affiliates any Specified Employee (as defined\nbelow) of Biosite; provided, however, that this section 8 will not prevent Beckman Coulter or any of its Representatives or any subsidiary or affiliate\nthereof from: (a) causing to be placed any general advertisement or similar public notice that is not targeted specifically at employees of Biosite or\nits subsidiaries or affiliates; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of\nBeckman Coulter, or soliciting the employment of any Specified Employee of Biosite or any of its subsidiaries or affiliates who is identified by any\nsuch recruiting firm or organization, as long as such recruiting firm or organization is not instructed to target any employees of Biosite or its\nsubsidiaries or affiliates. For purposes of this section 8, a person shall be deemed to be a “Specified Employee” of Biosite if: (i) such person is\nemployed by Biosite or by any subsidiary or affiliate of Biosite on the date of this Agreement or becomes employed by Biosite or by any subsidiary\nor affiliate of Biosite during the period in which such Party is continuing to negotiate a possible transaction with the other Party; and (ii) such\nperson’s employment shall not have been involuntarily terminated by Biosite or by a subsidiary or affiliate of Biosite.\n9. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process\nwithout giving notice to the other Party or any other Person; (b) to reject any\nproposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate\ndiscussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written\nagreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to\nnegotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims\nagainst the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the\nother Party.\n10. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future\nexercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or\namended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular\nprovision or provisions being waived or amended.\n11. Remedies. Each Party shall indemnify and hold harmless the other Party and the other Party’s Representatives against and from, and shall\ncompensate and reimburse the other Party and the other Party’s Representatives for, any damage, loss, claim, liability or expense (including legal\nfees and the cost of enforcing the other Party’s rights under this Agreement) arising out of or resulting from any unauthorized use or disclosure of\nany of the other Party’s Confidential Information or any other breach of this Agreement by such Party or any of its Representatives. Each Party\nacknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s\nRepresentatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to\nequitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party\nor any of the other Party’s Representatives. The indemnification and equitable remedies referred to above will not be deemed to be the exclusive\nremedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of\nlitigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives has breached this\nAgreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the reasonable legal fees incurred by\nthe other Party and the other Party’s Representatives in connection with such litigation (including any appeal relating thereto).\n12. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of California (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of California for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth below the name of such Party at the end of this Agreement shall be effective service of\nprocess for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of California; and\n(d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any\naction, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of California has\nbeen brought in an inconvenient forum.\n13. Miscellaneous.\n(a) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(b) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(c) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of\ninterest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual\ndesire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality\nof any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection\nthereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the\nfullest extent possible, the applicability of all such privileges or doctrines.\n(e) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof. However, for the avoidance of doubt, the\nParties mutually acknowledge and agree that this Agreement shall not modify, amend, terminate or supersede any obligation of either Party under\nany prior agreement to preserve the confidentiality of non-public information of the other Party that is disclosed for\npurposes unrelated to the consideration or negotiation of a strategic transaction involving the parties, including without limitation any obligations\narising out of that certain Confidentiality Agreement effective October 9, 2003, the Mutual Confidential Disclosure Agreement dated as of January 7,\n2003, the Confidentiality Agreement effective October 15, 2002, and the Confidentiality Agreement effective June 14, 2001, the BNP Assay\nDevelopment, Manufacture and Supply Agreement effective June 24, 2003, as amended, and the Stroke Assay Development, Manufacture and\nSupply Agreement dated as of June 24, 2003 (collectively, the “Pre-Existing Agreements”). Any disclosures of non-public information for purposes\nunrelated to the consideration or negotiation of a strategic transaction between the Parties shall continue to be subject to the applicable Pre-Existing\nAgreement in accordance with its terms.\n[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have caused this CONFIDENTIALITY AGREEMENT to be executed as of the date first written above.\nBIOSITE INCORPORATED\nBECKMAN COULTER, INC.\nBy: /s/ Kim D. Blickenstaff\nBy: /s/ Arnold A. Pinkston\nName: Kim D. Blickenstaff\nName: Arnold A. Pinkston\nTitle: Chairman & CEO\nTitle: Senior Vice President & General Counsel\nAddress: 9975 Summers Ridge Road\nSan Diego, CA 92121\nAddress: 4300 N. Harbor Blvd.\nFullerton, CA 92835\nLOGO\nJune 2, 2006\nBeckman Coulter, Inc.\n4300 N. Harbor Blvd.\nFullerton, CA 92835\nLadies and Gentlemen:\nReference is made to that certain Confidentiality Agreement entered into as of May 11, 2006 (the “Agreement”), between Biosite Incorporated\n(“Biosite”), on the one hand, and Beckman Coulter, Inc. (together with its subsidiaries and affiliates, “Beckman Coulter”), on the other hand. The\nundersigned agree as follows:\n1. The following sentence shall be added as the second sentence of section 6 of the Agreement:\n“Notwithstanding the foregoing: (a) the Recipient may cause its outside legal counsel to retain one set of the Provider’s Confidential\nInformation for archival purposes, such set to be accessed or used only in order to measure compliance with the terms of this Agreement\nor to defend against any claim, action or proceeding relating to this Agreement; and (b) the financial, legal and accounting advisers to a\nParty shall have the right to retain one set of any Confidential Information for archival purposes to the extent required by any applicable\nlaw, rule or regulation.”\n2. Section 7 of the Agreement is hereby clarified by adding the following language at the end of Section 7:\n“For purposes of clarification, it is understood that this Section 7 shall not restrict: (a) any discussions or negotiations conducted in a\nconfidential manner between the Parties or their respective Representatives with respect to a possible strategic transaction; or (b)\nBeckman Coulter or any of its Representatives from making any confidential proposals to Biosite in connection with such confidential\ndiscussions or negotiations, in any case under clause “(a)” or “(b)” of this sentence until Beckman Coulter is notified by Biosite of the\ntermination of such confidential discussions and negotiations.”\n3. The reference to “with such Party” in the fourth line of Section 8 of the Agreement shall be replaced “with Beckman Coulter.”\n9975 SUMMERS RIDGE ROAD, SAN DIEGO, CA 92121 n 858-455-4808 n WWW.BIOSITE.COM\n4. Except as set forth above, the Agreement shall remain in full force and effect as written.\nSincerely,\nBIOSITE INCORPORATED\nBy:\n/s/ Kim D. Blickenstaff\nAgreed to By:\nBECKMAN COULTER, INC.\nBy:\n/s/ Paul Glyer\nBeckman Coulter, Inc.\n4300 N. Harbor Boulevard, Fullerton, California 92834\nMay 1, 2007\nBiosite Incorporated\n9975 Summers Ridge Road\nSan Diego, CA 92121\nLadies and Gentleman:\nReference is made to that certain Confidentiality Agreement entered into as of May 11, 2006, as amended on June 2, 2006, (the “Agreement”)\nbetween Biosite Incorporated (“Biosite”), on the one hand, and Beckman Coulter, Inc. (together with its subsidiaries and affiliates, “Beckman\nCoulter”), on the other hand. The undersigned agree that the definition of “Standstill Period” shall be changed by amending Section 7 of the\nAgreement to replace the phrase “During the 18-month period commencing on the date of this Agreement” with the following phrase: “During the\nperiod commencing May 11, 2006 and ending March 23, 2007”.\nThis letter agreement is being entered into concurrently with that certain Amendment to the Agreement and Plan of Merger dated as of May 1,\n2007 by and among Beckman Coulter, Biosite and Louisiana Acquisition Sub, Inc.\n[Signature page follows]\n[signature page to Amendment to Confidentiality Agreement]\nSincerely,\nBECKMAN COULTER, INC.\nBy:\n/s/ Scott Garrett\nScott Garrett\nPresident and Chief Executive Officer\nAgreed to and accepted:\nBIOSITE INCORPORATED\nBy:\n/s/ Kim D. Blickenstaff\nKim D. Blickenstaff\nChairman and Chief Executive Officer	EX-99.(E)(6) 2 dex99e6.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT (e)(6)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is being entered into as of May 11, 2006, between BIOSITE INCORPORATED\n(“Biosite”), on the one hand, and BECKMAN COULTER, INC. (together with its subsidiaries and affiliates, “Beckman Coulter”), on the other hand.\nIn order to facilitate the consideration and negotiation of a possible strategic transaction involving Biosite and Beckman Coulter (referred to\ncollectively as the “Parties” and individually as a “Party”) separate from the ongoing business relationship between the Parties, each Party has\nrequested access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to\nin this Agreement as the “Recipient.”) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and\nregarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Definitions. For purposes of this Agreement:\n(a) a Party’s “Representatives” will be deemed to include each Person that is or becomes: (i) a subsidiary or other affiliate of such Party;\nor (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries\nor other affiliates.\n(b) the term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n2. Confidential Information. For purposes of this Agreement, each Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has been made available to the Recipient\nor any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly\nupon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information\nwas not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person\nwith respect to any of such information; or\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient or any of the Recipient’s Representatives without reliance\non the information received from Provider or any of the Provider’s Representatives hereunder, as evidenced by written records.\n3. Limitations on Use and Disclosure of Confidential Information. Subject to section 5 below, neither the Recipient nor any of the\nRecipient’s Representatives will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information, except for the specific purpose of considering, evaluating and\nnegotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person.\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on\nthe part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.\n4. No Representations by Provider. The Representatives of each Provider will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of\nthe Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of the Provider’s Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive\nwritten agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties\n(a “Definitive Agreement”) will have legal effect.\n5. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 3 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof;\n(ii) subject to section 5(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative: (A) needs to know such Confidential Information for the purpose of helping the Recipient\nevaluate or negotiate a possible negotiated transaction between the Parties; and (B) has been informed of the obligations set forth in this Agreement\nand has agreed to abide and be bound by the provisions hereof; and\n(iii) subject to section 5(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by subpoena or other valid legal process.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be\ndisclosed only to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in section 5(a)(ii) above, the\nRecipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient’s Representatives is required by applicable law or governmental regulation or by subpoena or\nother valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the\nProvider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy.\nThe Recipient and its Representatives will use reasonable efforts to cooperate with the Provider and the Provider’s Representatives in any attempt by\nthe Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such\nprotective order or other remedy in connection with any requirement that the Recipient disclose\nConfidential Information of the Provider, and if the Recipient has been advised by its internal counsel or other reputable external legal counsel\nconfirming that the disclosure of such Confidential Information is legally required, then the Recipient may disclose such Confidential Information to\nthe extent legally required; provided, however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such\nConfidential Information is treated confidentially by each Person to whom it is disclosed.\n6. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver\nto the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the\nRecipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any written materials of the type described in clause “(b)”\nof the first sentence of section 2 above, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their\ndestruction. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant\nto this section 6, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n7. Standstill Provision. During the 18-month period commencing on the date of this Agreement (the “Standstill Period”), neither Beckman\nCoulter nor any entity controlling, controlled by or under common control with Beckman Coulter will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Biosite or any securities\nof any subsidiary or other affiliate of Biosite, (ii) any acquisition of any assets of Biosite or any assets of any subsidiary or other affiliate of Biosite,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary\ntransaction involving Biosite or any subsidiary or other affiliate of Biosite, or involving any securities or assets of Biosite or any securities or assets\nof any subsidiary or other affiliate of Biosite, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and\nExchange Commission) or consents with respect to any securities of Biosite;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Biosite;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Biosite;\n(d) take any action that might require Biosite to make a public announcement regarding any of the types of matters set forth in clause\n“(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)”\nor “(d)” of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of\nthis sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Biosite or any of Biosite’s Representatives amend, waive or consider the amendment or waiver of any\nprovision set forth in this section 7.\nIn the event that Biosite enters into a definitive agreement with any other Person or entity involving a merger or sale of the majority of the\noutstanding securities or assets of Biosite to a third party, following Biosite’s announcement of such definitive agreement Beckman Coulter shall be\nreleased from any and all of the restrictions and obligations contained in this paragraph; provided, however, that any such release shall not be\ndeemed a waiver of any prior breach under this paragraph.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.\n8. Limitation on Soliciting Employees. During the 12-month period commencing on the date of this Agreement, Beckman Coulter will not\npermit any of its Representatives or any subsidiary or affiliate thereof who is or becomes aware of the consideration or negotiation of a possible\ntransaction between the Parties to solicit for employment with such Party or any of its subsidiaries or affiliates any Specified Employee (as defined\nbelow) of Biosite; provided, however, that this section 8 will not prevent Beckman Coulter or any of its Representatives or any subsidiary or affiliate\nthereof from: (a) causing to be placed any general advertisement or similar public notice that is not targeted specifically at employees of Biosite or\nits subsidiaries or affiliates; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of\nBeckman Coulter, or soliciting the employment of any Specified Employee of Biosite or any of its subsidiaries or affiliates who is identified by any\nsuch recruiting firm or organization, as long as such recruiting firm or organization is not instructed to target any employees of Biosite or its\nsubsidiaries or affiliates. For purposes of this section 8, a person shall be deemed to be a “Specified Employee” of Biosite if: (i) such person is\nemployed by Biosite or by any subsidiary or affiliate of Biosite on the date of this Agreement or becomes employed by Biosite or by any subsidiary\nor affiliate of Biosite during the period in which such Party is continuing to negotiate a possible transaction with the other Party; and (ii) such\nperson’s employment shall not have been involuntarily terminated by Biosite or by a subsidiary or affiliate of Biosite.\n9. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process\nwithout giving notice to the other Party or any other Person; (b) to reject any\nproposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate\ndiscussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written\nagreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to\nnegotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims\nagainst the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the\nother Party.\n10. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future\nexercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or\namended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular\nprovision or provisions being waived or amended.\n11. Remedies. Each Party shall indemnify and hold harmless the other Party and the other Party’s Representatives against and from, and shall\ncompensate and reimburse the other Party and the other Party’s Representatives for, any damage, loss, claim, liability or expense (including legal\nfees and the cost of enforcing the other Party’s rights under this Agreement) arising out of or resulting from any unauthorized use or disclosure of\nany of the other Party’s Confidential Information or any other breach of this Agreement by such Party or any of its Representatives. Each Party\nacknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s\nRepresentatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to\nequitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party\nor any of the other Party’s Representatives. The indemnification and equitable remedies referred to above will not be deemed to be the exclusive\nremedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of\nlitigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives has breached this\nAgreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the reasonable legal fees incurred by\nthe other Party and the other Party’s Representatives in connection with such litigation (including any appeal relating thereto).\n12. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of California (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of California for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth below the name of such Party at the end of this Agreement shall be effective service of\nprocess for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of California; and\n(d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any\naction, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of California has\nbeen brought in an inconvenient forum.\n13. Miscellaneous.\n(a) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(b) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(c) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of\ninterest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties” mutual\ndesire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality\nof any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection\nthereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the\nfullest extent possible, the applicability of all such privileges or doctrines.\n(e) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof. However, for the avoidance of doubt, the\nParties mutually acknowledge and agree that this Agreement shall not modify, amend, terminate or supersede any obligation of either Party under\nany prior agreement to preserve the confidentiality of non-public information of the other Party that is disclosed for\npurposes unrelated to the consideration or negotiation of a strategic transaction involving the parties, including without limitation any obligations\narising out of that certain Confidentiality Agreement effective October 9, 2003, the Mutual Confidential Disclosure Agreement dated as of January 7,\n2003, the Confidentiality Agreement effective October 15, 2002, and the Confidentiality Agreement effective June 14, 2001, the BNP Assay\nDevelopment, Manufacture and Supply Agreement effective June 24, 2003, as amended, and the Stroke Assay Development, Manufacture and\nSupply Agreement dated as of June 24, 2003 (collectively, the “Pre-Existing Agreements”). Any disclosures of non-public information for purposes\nunrelated to the consideration or negotiation of a strategic transaction between the Parties shall continue to be subject to the applicable Pre-Existing\nAgreement in accordance with its terms.\n[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have caused this CONFIDENTIALITY AGREEMENT to be executed as of the date first written above. BIOSITE INCORPORATED\nBy: /s/ Kim D. Blickenstaff\nName: Kim D. Blickenstaff\nTitle:  Chairman & CEO\nAddress: 9975 Summers Ridge Road\nSan Diego, CA 92121\nBECKMAN COULTER, INC.\nBy: /s/ Arnold A. Pinkston\nName: Arnold A. Pinkston\nTitle:  Senior Vice President & General Counsel\nAddress: 4300 N. Harbor Blvd.\nFullerton, CA 92835\n. LOGO\nJune 2, 2006\nBeckman Coulter, Inc.\n4300 N. Harbor Blvd.\nFullerton, CA 92835\nLadies and Gentlemen:\nReference is made to that certain Confidentiality Agreement entered into as of May 11, 2006 (the “Agreement”), between Biosite Incorporated\n(“Biosite”), on the one hand, and Beckman Coulter, Inc. (together with its subsidiaries and affiliates, “Beckman Coulter”), on the other hand. The\nundersigned agree as follows:\n1. The following sentence shall be added as the second sentence of section 6 of the Agreement:\n“Notwithstanding the foregoing: (a) the Recipient may cause its outside legal counsel to retain one set of the Provider’s Confidential\nInformation for archival purposes, such set to be accessed or used only in order to measure compliance with the terms of this Agreement\nor to defend against any claim, action or proceeding relating to this Agreement; and (b) the financial, legal and accounting advisers to a\nParty shall have the right to retain one set of any Confidential Information for archival purposes to the extent required by any applicable\nlaw, rule or regulation.”\n2. Section 7 of the Agreement is hereby clarified by adding the following language at the end of Section 7:\n“For purposes of clarification, it is understood that this Section 7 shall not restrict: (a) any discussions or negotiations conducted in a\nconfidential manner between the Parties or their respective Representatives with respect to a possible strategic transaction; or (b)\nBeckman Coulter or any of its Representatives from making any confidential proposals to Biosite in connection with such confidential\ndiscussions or negotiations, in any case under clause “(a)” or “(b)” of this sentence until Beckman Coulter is notified by Biosite of the\ntermination of such confidential discussions and negotiations.”\n3. The reference to “with such Party” in the fourth line of Section 8 of the Agreement shall be replaced “with Beckman Coulter.”\n9975 SUMMERS RIDGE ROAD, SAN DIEGO, CA 92121 n 858-455-4808 n WWW.BIOSITE.COM\n4.  Except as set forth above, the Agreement shall remain in full force and effect as written.\nSincerely,\nBIOSITE INCORPORATED\nBy: /s/  Kim D. Blickenstaff\nAgreed to By:\nBECKMAN COULTER, INC.\nBy: /s/  Paul Glyer\nBeckman Coulter, Inc.\n4300 N. Harbor Boulevard, Fullerton, California 92834\nMay 1, 2007\nBiosite Incorporated\n9975 Summers Ridge Road\nSan Diego, CA 92121\nLadies and Gentleman:\nReference is made to that certain Confidentiality Agreement entered into as of May 11, 2006, as amended on June 2, 2006, (the “Agreement”)\nbetween Biosite Incorporated (“Biosite”), on the one hand, and Beckman Coulter, Inc. (together with its subsidiaries and affiliates, “Beckman\nCoulter”), on the other hand. The undersigned agree that the definition of “Standstill Period” shall be changed by amending Section 7 of the\nAgreement to replace the phrase “During the 18-month period commencing on the date of this Agreement” with the following phrase: “During the\nperiod commencing May 11, 2006 and ending March 23, 2007”.\n \nThis letter agreement is being entered into concurrently with that certain Amendment to the Agreement and Plan of Merger dated as of May 1,\n2007 by and among Beckman Coulter, Biosite and Louisiana Acquisition Sub, Inc.\n[Signature page follows]\n[signature page to Amendment to Confidentiality Agreement]\nSincerely,\nBECKMAN COULTER, INC.\nBy: /s/ Scott Garrett\nScott Garrett\nPresident and Chief Executive Officer\nAgreed to and accepted:\nBIOSITE INCORPORATED\nBy: /s/ Kim D. Blickenstaff\nKim D. Blickenstaff\nChairman and Chief Executive Officer	EX-99.(E)(6) 2 dex99e6.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT (e)(6)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (this "Agreement") is being entered into as of May 11, 2006, between BIOSITE INCORPORATED\n("Biosite"), on the one hand, and BECKMAN COULTER, INC. (together with its subsidiaries and affiliates, "Beckman Coulter"), on the other\nhand.\nIn order to facilitate the consideration and negotiation of a possible strategic transaction involving Biosite and Beckman Coulter (referred to\ncollectively as the "Parties" and individually as a "Party.") separate from the ongoing business relationship between the Parties, each Party has\nrequested access to certain non-public information regarding the other Party and the other Party's subsidiaries. (Each Party, in its capacity as a\nprovider\nof\ninformation, is referred to in this Agreement as the "Provider"; and each Party, in its capacity as a recipient of information, is referred\nto\nin this Agreement as the "Recipient.") This Agreement sets forth the Parties' obligations regarding the use and disclosure of such information and\nregarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Definitions. For purposes of this Agreement:\n(a) a Party's "Representatives" will be deemed to include each Person that is or becomes: (i) a subsidiary or other affiliate of such Party;\nor (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party's subsidiaries\nor other affiliates.\n(b) the term "Person," as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n2. Confidential Information. For purposes of this Agreement, each Provider's "Confidential Information" will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has been made available to the Recipient\nor any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly\nupon any information of the type referred to in clause "(a)" of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause "(a)" of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\nHowever, the Provider's "Confidentia Information" will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient's Representatives;\n(ii) any information that was in the Recipient's possession prior to the time it was first made available to the Recipient or any of\nthe Recipient's Representatives by or on behalf of the Provider or any of the Provider's Representatives, provided that the source of such information\nwas not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person\nwith respect to any of such information; or\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider's Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient or any of the Recipient's Representatives without reliance\non the information received from Provider or any of the Provider's Representatives hereunder, as evidenced by written records.\n3. Limitations on Use and Disclosure of Confidential Information. Subject to section 5 below, neither the Recipient nor any of the\nRecipient's Representatives will, at any time, directly or indirectly:\n(a) make use of any of the Provider's Confidential Information, except for the specific purpose of considering, evaluating and\nnegotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider's Confidential Information to any other Person.\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on\nthe part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider's Confidential Information.\n4. No Representations by Provider. The Representatives of each Provider will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of\nthe Provider's Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient's Representatives or to supplement or update any Confidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider's Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient's Representatives relating to or resulting from the use of any of the Provider's Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive\nwritten agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties\n(a "Definitive Agreement") will have legal effect.\n5. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 3 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient's disclosure thereof;\n(ii) subject to section 5(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative: (A) needs to know such Confidential Information for the purpose of helping the Recipient\nevaluate or negotiate a possible negotiated transaction between the Parties; and (B) has been informed of the obligations set forth in this Agreement\nand has agreed to abide and be bound by the provisions hereof; and\n(iii) subject to section 5(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required\nby\napplicable law or governmental regulation or by subpoena or other valid legal process.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be\ndisclosed only to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in section 5(a)(ii) above, the\nRecipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient's Representatives is required by applicable law or governmental regulation or by subpoena or\nother valid legal process to disclose any of the Provider's Confidential Information to any Person, then the Recipient will promptly provide the\nProvider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate\nremedy.\nThe Recipient and its Representatives will use reasonable efforts to cooperate with the Provider and the Provider's Representatives in any attempt by\nthe Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such\nprotective order or other remedy in connection with any requirement that the Recipient disclose\nConfidential Information of the Provider, and if the Recipient has been advised by its internal counsel or other reputable external legal counsel\nconfirming that the disclosure of such Confidential Information is legally required, then the Recipient may disclose such Confidential Information to\nthe extent legally required; provided, however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such\nConfidential Information is treated confidentially by each Person to whom it is disclosed.\n6. Return of Confidential Information. Upon the Provider's request, the Recipient and the Recipient's Representatives will promptly deliver\nto the Provider any of the Provider's Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the\nRecipient's Representatives; provided, however, that, in lieu of delivering to the Provider any written materials of the type described in clause\n"(b)"\nof the first sentence of section 2 above, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their\ndestruction. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant\nto this section 6, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n7. Standstill Provision. During the 18-month period commencing on the date of this Agreement (the "Standstill Period"), neither Beckman\nCoulter nor any entity controlling, controlled by or under common control with Beckman Coulter will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Biosite or any securities\nof any subsidiary or other affiliate of Biosite, (ii) any acquisition of any assets of Biosite or any assets of any subsidiary or other affiliate of Biosite,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary\ntransaction involving Biosite or any subsidiary or other affiliate of Biosite, or involving any securities or assets of Biosite or any securities or assets\nof any subsidiary or other affiliate of Biosite, or (iv) any "solicitation" of "proxies" (as those terms are used in the proxy rules of the Securities and\nExchange Commission) or consents with respect to any securities of Biosite;\n(b) form, join or participate in a "group" (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Biosite;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Biosite;\n(d) take any action that might require Biosite to make a public announcement regarding any of the types of matters set forth in clause\n"(a)" of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause "(a)", "(b)", "(c)"\nor "(d)" of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause "(a)", "(b)", "(c)", "(d)" or "(e)" of\nthis sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing;\nor\n(h) request or propose that Biosite or any of Biosite's Representatives amend, waive or consider the amendment or waiver of any\nprovision set forth in this section 7.\nIn the event that Biosite enters into a definitive agreement with any other Person or entity involving a merger or sale of the majority of the\noutstanding securities or assets of Biosite to a third party, following Biosite's announcement of such definitive agreement Beckman Coulter shall\nbe\nreleased from any and all of the restrictions and obligations contained in this paragraph; provided, however, that any such release shall not be\ndeemed a waiver of any prior breach under this paragraph.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.\n8. Limitation on Soliciting Employees. During the 12-month period commencing on the date of this Agreement, Beckman Coulter will not\npermit any of its Representatives or any subsidiary or affiliate thereof who is or becomes aware of the consideration or negotiation of a possible\ntransaction between the Parties to solicit for employment with such Party or any of its subsidiaries or affiliates any Specified Employee (as defined\nbelow) of Biosite; provided, however, that this section 8 will not prevent Beckman Coulter or any of its Representatives or any subsidiary or affiliate\nthereof from: (a) causing to be placed any general advertisement or similar public notice that is not targeted specifically at employees of Biosite or\nits subsidiaries or affiliates; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of\nBeckman Coulter, or soliciting the employment of any Specified Employee of Biosite or any of its subsidiaries or affiliates who is identified by any\nsuch recruiting firm or organization, as long as such recruiting firm or organization is not instructed to target any employees of Biosite or its\nsubsidiaries or affiliates. For purposes of this section 8, a person shall be deemed to be a "Specified Employee" of Biosite if: (i) such person is\nemployed by Biosite or by any subsidiary or affiliate of Biosite on the date of this Agreement or becomes employed by Biosite or by any subsidiary\nor affiliate of Biosite during the period in which such Party is continuing to negotiate a possible transaction with the other Party; and (ii) such\nperson's employment shall not have been involuntarily terminated by Biosite or by a subsidiary or affiliate of Biosite.\n9. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process\nwithout giving notice to the other Party or any other Person; (b) to reject any\nproposal made by the other Party or any of the other Party's Representatives with respect to a transaction involving such Party; and (c) to terminate\ndiscussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written\nagreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free\nto\nnegotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims\nagainst the other Party or any of the other Party's Representatives arising out of or relating to any transaction or proposed transaction involving the\nother Party.\n10. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future\nexercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or\namended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular\nprovision or provisions being waived or amended.\n11. Remedies. Each Party shall indemnify and hold harmless the other Party and the other Party's Representatives against and from, and shall\ncompensate and reimburse the other Party and the other Party's Representatives for, any damage, loss, claim, liability or expense (including legal\nfees and the cost of enforcing the other Party's rights under this Agreement) arising out of or resulting from any unauthorized use or disclosure\nof\nany of the other Party's Confidential Information or any other breach of this Agreement by such Party or any of its Representatives. Each Party\nacknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party's\nRepresentatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to\nequitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party\nor any of the other Party's Representatives. The indemnification and equitable remedies referred to above will not be deemed to be the exclusive\nremedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event\nof\nlitigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives has breached this\nAgreement, such Party will be liable for, and will pay to the other Party and the other Party's Representatives, the reasonable legal fees incurred by\nthe other Party and the other Party's Representatives in connection with such litigation (including any appeal relating thereto).\n12. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of California (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of California for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth below the name of such Party at the end of this Agreement shall be effective service of\nprocess for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of California; and\n(d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any\naction, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of California has\nbeen brought in an inconvenient forum.\n13. Miscellaneous.\n(a) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(b) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(c) By making Confidential Information or other information available to the Recipient or the Recipient's Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of\ninterest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties' mutual\ndesire,\nintention\nand\nunderstanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality\nof any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection\nthereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the\nfullest extent possible, the applicability of all such privileges or doctrines.\n(e) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof. However, for the avoidance of doubt, the\nParties mutually acknowledge and agree that this Agreement shall not modify, amend, terminate or supersede any obligation of either Party under\nany prior agreement to preserve the confidentiality of non-public information of the other Party that is disclosed for\npurposes unrelated to the consideration or negotiation of a strategic transaction involving the parties, including without limitation any obligations\narising out of that certain Confidentiality Agreement effective October 9, 2003, the Mutual Confidential Disclosure Agreement dated as of January\n7,\n2003, the Confidentiality Agreement effective October 15, 2002, and the Confidentiality Agreement effective June 14, 2001, the BNP Assay\nDevelopment, Manufacture and Supply Agreement effective June 24, 2003, as amended, and the Stroke Assay Development, Manufacture and\nSupply Agreement dated as of June 24, 2003 (collectively, the "Pre-Existing Agreements"). Any disclosures of non-public information for purposes\nunrelated to the consideration or negotiation of a strategic transaction between the Parties shall continue to be subject to the applicable Pre-Existing\nAgreement in accordance with its terms.\n[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have caused this CONFIDENTIALITY AGREEMENT to be executed as of the date first written above.\nBIOSITE INCORPORATED\nBECKMAN COULTER, INC.\nBy:\n/s/ Kim D. Blickenstaff\nBy:\n/s/ Arnold A. Pinkston\nName: Kim D. Blickenstaff\nName: Arnold A. Pinkston\nTitle: Chairman & CEO\nTitle: Senior Vice President & General Counsel\nAddress: 9975 Summers Ridge Road\nAddress: 4300 N. Harbor Blvd.\nSan Diego, CA 92121\nFullerton, CA 92835\nLOGO\nJune 2, 2006\nBeckman Coulter, Inc.\n4300 N. Harbor Blvd.\nFullerton, CA 92835\nLadies and Gentlemen:\nReference is made to that certain Confidentiality Agreement entered into as of May 11, 2006 (the "Agreement"), between Biosite Incorporated\n("Biosite"), on the one hand, and Beckman Coulter, Inc. (together with its subsidiaries and affiliates, "Beckman Coulter"), on the other hand. The\nundersigned agree as follows:\n1.\nThe following sentence shall be added as the second sentence of section 6 of the Agreement:\n"Notwithstanding the foregoing: (a) the Recipient may cause its outside legal counsel to retain one set of the Provider's Confidential\nInformation for archival purposes, such set to be accessed or used only in order to measure compliance with the terms of this Agreement\nor to defend against any claim, action or proceeding relating to this Agreement; and (b) the financial, legal and accounting advisers to a\nParty shall have the right to retain one set of any Confidential Information for archival purposes to the extent required by any applicable\nlaw, rule or regulation."\n2.\nSection 7 of the Agreement is hereby clarified by adding the following language at the end of Section 7:\n"For purposes of clarification, it is understood that this Section 7 shall not restrict: (a) any discussions or negotiations conducted in a\nconfidential manner between the Parties or their respective Representatives with respect to a possible strategic transaction; or (b)\nBeckman Coulter or any of its Representatives from making any confidential proposals to Biosite in connection with such confidential\ndiscussions or negotiations, in any case under clause "(a)" or "(b)" of this sentence until Beckman Coulter is notified by Biosite of the\ntermination of such confidential discussions and negotiations."\n3.\nThe reference to "with such Party" in the fourth line of Section 8 of the Agreement shall be replaced "'with Beckman Coulter."\n9975 SUMMERS RIDGE ROAD, SAN DIEGO, CA 92121 n 858-455-4808 n WWW.BIOSITE.COM\n4.\nExcept as set forth above, the Agreement shall remain in full force and effect as written.\nSincerely,\nBIOSITE INCORPORATED\nBy:\n/s/ Kim D. Blickenstaff\nAgreed to By:\nBECKMAN COULTER, INC.\nBy:\n/s/ Paul Glyer\nBeckman Coulter, Inc.\n4300 N. Harbor Boulevard, Fullerton, California 92834\nMay 1, 2007\nBiosite Incorporated\n9975 Summers Ridge Road\nSan Diego, CA 92121\nLadies and Gentleman:\nReference is made to that certain Confidentiality Agreement entered into as of May 11, 2006, as amended on June 2, 2006, (the "Agreement")\nbetween Biosite Incorporated ("Biosite"), on the one hand, and Beckman Coulter, Inc. (together with its subsidiaries and affiliates, "Beckman\nCoulter"), on the other hand. The undersigned agree that the definition of "Standstill Period" shall be changed by amending Section 7 of the\nAgreement to replace the phrase "During the 18-month period commencing on the date of this Agreement" with the following phrase: "During the\nperiod commencing May 11, 2006 and ending March 23, 2007".\nThis letter agreement is being entered into concurrently with that certain Amendment to the Agreement and Plan of Merger dated as of May 1,\n2007 by and among Beckman Coulter, Biosite and Louisiana Acquisition Sub, Inc.\n[Signature page follows]\n[signature page to Amendment to Confidentiality Agreement]\nSincerely,\nBECKMAN COULTER, INC.\nBy:\n/s/ Scott Garrett\nScott Garrett\nPresident and Chief Executive Officer\nAgreed to and accepted:\nBIOSITE INCORPORATED\nBy:\n/s/ Kim D. Blickenstaff\nKim D. Blickenstaff\nChairman and Chief Executive Officer	EX-99.(E)(6) 2 dex99e6.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT (e)(6)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY A GREEMENT (this “Agreement”) is being entered into as of May 11, 2006, between BIOSITE INCORPORATED\n(“Biosite”), on the one hand, and BECKMAN COULTER, INC. (together with its subsidiaries and affiliates, “Beckman Coulter”), on the other hand.\nIn order to facilitate the consideration and negotiation of a possible strategic transaction involving Biosite and Beckman Coulter (referred to\ncollectively as the “Parties” and individually as a “Party”) separate from the ongoing business relationship between the Parties, each Party has\nrequested access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to\nin this Agreement as the “Recipient.”) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and\nregarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Definitions. For purposes of this Agreement:\n(a) a Party’s “Representatives” will be deemed to include each Person that is or becomes: (i) a subsidiary or other affiliate of such Party;\nor (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries\nor other affiliates.\n(b) the term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n2. Confidential Information. For purposes of this Agreement, each Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has been made available to the Recipient\nor any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly\nupon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information\nwas not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person\nwith respect to any of such information; or\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient or any of the Recipient’s Representatives without reliance\non the information received from Provider or any of the Provider’s Representatives hereunder, as evidenced by written records.\n3. Limitations on Use and Disclosure of Confidential Information. Subject to section 5 below, neither the Recipient nor any of the\nRecipient’s Representatives will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information, except for the specific purpose of considering, evaluating and\nnegotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person.\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on\nthe part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.\n4. No Representations by Provider. The Representatives of each Provider will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of\nthe Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of the Provider’s Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive\nwritten agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties\n(a “Definitive Agreement”) will have legal effect.\n5. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 3 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof;\n(ii) subject to section 5(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative: (A) needs to know such Confidential Information for the purpose of helping the Recipient\nevaluate or negotiate a possible negotiated transaction between the Parties; and (B) has been informed of the obligations set forth in this Agreement\nand has agreed to abide and be bound by the provisions hereof; and\n(iii) subject to section 5(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by subpoena or other valid legal process.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be\ndisclosed only to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in section 5(a)(ii) above, the\nRecipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient’s Representatives is required by applicable law or governmental regulation or by subpoena or\nother valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the\nProvider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy.\nThe Recipient and its Representatives will use reasonable efforts to cooperate with the Provider and the Provider’s Representatives in any attempt by\nthe Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such\nprotective order or other remedy in connection with any requirement that the Recipient disclose\nConfidential Information of the Provider, and if the Recipient has been advised by its internal counsel or other reputable external legal counsel\nconfirming that the disclosure of such Confidential Information is legally required, then the Recipient may disclose such Confidential Information to\nthe extent legally required; provided, however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such\nConfidential Information is treated confidentially by each Person to whom it is disclosed.\n6. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver\nto the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the\nRecipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any written materials of the type described in clause “(b)”\nof the first sentence of section 2 above, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their\ndestruction. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant\nto this section 6, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n7. Standstill Provision. During the 18-month period commencing on the date of this Agreement (the “Standstill Period”), neither Beckman\nCoulter nor any entity controlling, controlled by or under common control with Beckman Coulter will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Biosite or any securities\nof any subsidiary or other affiliate of Biosite, (ii) any acquisition of any assets of Biosite or any assets of any subsidiary or other affiliate of Biosite,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary\ntransaction involving Biosite or any subsidiary or other affiliate of Biosite, or involving any securities or assets of Biosite or any securities or assets\nof any subsidiary or other affiliate of Biosite, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and\nExchange Commission) or consents with respect to any securities of Biosite;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Biosite;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Biosite;\n(d) take any action that might require Biosite to make a public announcement regarding any of the types of matters set forth in clause\n“(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)”\nor “(d)” of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of\nthis sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Biosite or any of Biosite’s Representatives amend, waive or consider the amendment or waiver of any\nprovision set forth in this section 7.\nIn the event that Biosite enters into a definitive agreement with any other Person or entity involving a merger or sale of the majority of the\noutstanding securities or assets of Biosite to a third party, following Biosite’s announcement of such definitive agreement Beckman Coulter shall be\nreleased from any and all of the restrictions and obligations contained in this paragraph; provided, however, that any such release shall not be\ndeemed a waiver of any prior breach under this paragraph.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.\n8. Limitation on Soliciting Employees. During the 12-month period commencing on the date of this Agreement, Beckman Coulter will not\npermit any of its Representatives or any subsidiary or affiliate thereof who is or becomes aware of the consideration or negotiation of a possible\ntransaction between the Parties to solicit for employment with such Party or any of its subsidiaries or affiliates any Specified Employee (as defined\nbelow) of Biosite; provided, however, that this section 8 will not prevent Beckman Coulter or any of its Representatives or any subsidiary or affiliate\nthereof from: (a) causing to be placed any general advertisement or similar public notice that is not targeted specifically at employees of Biosite or\nits subsidiaries or affiliates; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of\nBeckman Coulter, or soliciting the employment of any Specified Employee of Biosite or any of its subsidiaries or affiliates who is identified by any\nsuch recruiting firm or organization, as long as such recruiting firm or organization is not instructed to target any employees of Biosite or its\nsubsidiaries or affiliates. For purposes of this section 8, a person shall be deemed to be a “Specified Employee” of Biosite if: (i) such person is\nemployed by Biosite or by any subsidiary or affiliate of Biosite on the date of this Agreement or becomes employed by Biosite or by any subsidiary\nor affiliate of Biosite during the period in which such Party is continuing to negotiate a possible transaction with the other Party; and (ii) such\nperson’s employment shall not have been involuntarily terminated by Biosite or by a subsidiary or affiliate of Biosite.\n9. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process\nwithout giving notice to the other Party or any other Person; (b) to reject any\nproposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate\ndiscussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written\nagreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to\nnegotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims\nagainst the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the\nother Party.\n10. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future\nexercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or\namended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular\nprovision or provisions being waived or amended.\n11. Remedies. Each Party shall indemnify and hold harmless the other Party and the other Party’s Representatives against and from, and shall\ncompensate and reimburse the other Party and the other Party’s Representatives for, any damage, loss, claim, liability or expense (including legal\nfees and the cost of enforcing the other Party’s rights under this Agreement) arising out of or resulting from any unauthorized use or disclosure of\nany of the other Party’s Confidential Information or any other breach of this Agreement by such Party or any of its Representatives. Each Party\nacknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s\nRepresentatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to\nequitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party\nor any of the other Party’s Representatives. The indemnification and equitable remedies referred to above will not be deemed to be the exclusive\nremedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of\nlitigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives has breached this\nAgreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the reasonable legal fees incurred by\nthe other Party and the other Party’s Representatives in connection with such litigation (including any appeal relating thereto).\n12. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of California (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of California for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth below the name of such Party at the end of this Agreement shall be effective service of\nprocess for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of California; and\n(d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any\naction, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of California has\nbeen brought in an inconvenient forum.\n13. Miscellaneous.\n(a) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(b) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(c) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of\ninterest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual\ndesire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality\nof any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection\nthereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the\nfullest extent possible, the applicability of all such privileges or doctrines.\n(e) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof. However, for the avoidance of doubt, the\nParties mutually acknowledge and agree that this Agreement shall not modify, amend, terminate or supersede any obligation of either Party under\nany prior agreement to preserve the confidentiality of non-public information of the other Party that is disclosed for\npurposes unrelated to the consideration or negotiation of a strategic transaction involving the parties, including without limitation any obligations\narising out of that certain Confidentiality Agreement effective October 9, 2003, the Mutual Confidential Disclosure Agreement dated as of January 7,\n2003, the Confidentiality Agreement effective October 15, 2002, and the Confidentiality Agreement effective June 14, 2001, the BNP Assay\nDevelopment, Manufacture and Supply Agreement effective June 24, 2003, as amended, and the Stroke Assay Development, Manufacture and\nSupply Agreement dated as of June 24, 2003 (collectively, the “Pre-Existing Agreements”). Any disclosures of non-public information for purposes\nunrelated to the consideration or negotiation of a strategic transaction between the Parties shall continue to be subject to the applicable Pre-Existing\nAgreement in accordance with its terms.\n[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have caused this CONFIDENTIALITY AGREEMENT to be executed as of the date first written above.\nBIOSITE INCORPORATED\nBECKMAN COULTER, INC.\nBy: /s/ Kim D. Blickenstaff\nBy: /s/ Arnold A. Pinkston\nName: Kim D. Blickenstaff\nName: Arnold A. Pinkston\nTitle: Chairman & CEO\nTitle: Senior Vice President & General Counsel\nAddress: 9975 Summers Ridge Road\nSan Diego, CA 92121\nAddress: 4300 N. Harbor Blvd.\nFullerton, CA 92835\nLOGO\nJune 2, 2006\nBeckman Coulter, Inc.\n4300 N. Harbor Blvd.\nFullerton, CA 92835\nLadies and Gentlemen:\nReference is made to that certain Confidentiality Agreement entered into as of May 11, 2006 (the “Agreement”), between Biosite Incorporated\n(“Biosite”), on the one hand, and Beckman Coulter, Inc. (together with its subsidiaries and affiliates, “Beckman Coulter”), on the other hand. The\nundersigned agree as follows:\n1. The following sentence shall be added as the second sentence of section 6 of the Agreement:\n“Notwithstanding the foregoing: (a) the Recipient may cause its outside legal counsel to retain one set of the Provider’s Confidential\nInformation for archival purposes, such set to be accessed or used only in order to measure compliance with the terms of this Agreement\nor to defend against any claim, action or proceeding relating to this Agreement; and (b) the financial, legal and accounting advisers to a\nParty shall have the right to retain one set of any Confidential Information for archival purposes to the extent required by any applicable\nlaw, rule or regulation.”\n2. Section 7 of the Agreement is hereby clarified by adding the following language at the end of Section 7:\n“For purposes of clarification, it is understood that this Section 7 shall not restrict: (a) any discussions or negotiations conducted in a\nconfidential manner between the Parties or their respective Representatives with respect to a possible strategic transaction; or (b)\nBeckman Coulter or any of its Representatives from making any confidential proposals to Biosite in connection with such confidential\ndiscussions or negotiations, in any case under clause “(a)” or “(b)” of this sentence until Beckman Coulter is notified by Biosite of the\ntermination of such confidential discussions and negotiations.”\n3. The reference to “with such Party” in the fourth line of Section 8 of the Agreement shall be replaced “with Beckman Coulter.”\n9975 SUMMERS RIDGE ROAD, SAN DIEGO, CA 92121 n 858-455-4808 n WWW.BIOSITE.COM\n4. Except as set forth above, the Agreement shall remain in full force and effect as written.\nSincerely,\nBIOSITE INCORPORATED\nBy:\n/s/ Kim D. Blickenstaff\nAgreed to By:\nBECKMAN COULTER, INC.\nBy:\n/s/ Paul Glyer\nBeckman Coulter, Inc.\n4300 N. Harbor Boulevard, Fullerton, California 92834\nMay 1, 2007\nBiosite Incorporated\n9975 Summers Ridge Road\nSan Diego, CA 92121\nLadies and Gentleman:\nReference is made to that certain Confidentiality Agreement entered into as of May 11, 2006, as amended on June 2, 2006, (the “Agreement”)\nbetween Biosite Incorporated (“Biosite”), on the one hand, and Beckman Coulter, Inc. (together with its subsidiaries and affiliates, “Beckman\nCoulter”), on the other hand. The undersigned agree that the definition of “Standstill Period” shall be changed by amending Section 7 of the\nAgreement to replace the phrase “During the 18-month period commencing on the date of this Agreement” with the following phrase: “During the\nperiod commencing May 11, 2006 and ending March 23, 2007”.\nThis letter agreement is being entered into concurrently with that certain Amendment to the Agreement and Plan of Merger dated as of May 1,\n2007 by and among Beckman Coulter, Biosite and Louisiana Acquisition Sub, Inc.\n[Signature page follows]\n[signature page to Amendment to Confidentiality Agreement]\nSincerely,\nBECKMAN COULTER, INC.\nBy:\n/s/ Scott Garrett\nScott Garrett\nPresident and Chief Executive Officer\nAgreed to and accepted:\nBIOSITE INCORPORATED\nBy:\n/s/ Kim D. Blickenstaff\nKim D. Blickenstaff\nChairman and Chief Executive Officer
+65e9b4a23cf47e9380a9589978eb779e.pdf	effective_date jurisdiction party term	EX-10.1 2 ex10-1.htm EXHIBIT 10.1 CONFIDENTIAL SEVERANCE AGREEMENT AND GENERAL RELEASE\nCONFIDENTIAL SEVERANCE AGREEMENT AND GENERAL RELEASE\nThis Confidential Severance Agreement and General Release (“Agreement”), is made and entered into by and between the undersigned\nindividual Brad N. Graves (“Graves” or “you”) and Genesis Energy, Inc. (the “Company”), Grant E. Sims (“Sims”), and Joseph A. Blount, Jr.\n(“Blount”) (the signatories to this Agreement will be referred to collectively as the “Parties,” and the Parties other than you are the “Other\nParties”) as follows:\nWHEREAS, Sims, Blount and you were negotiating the definitive terms and conditions pursuant to which (i) the Company and its\naffiliates would, under certain circumstances, compensate a management team led by Sims (and to include you initially) for services rendered to\nthe Company, and (ii) how, and under what circumstances, Sims, Blount, you and any other members of that management team potentially might\nshare such compensation;\nWHEREAS, the Company employed you as Executive Vice President since on or about August 8, 2006;\nWHEREAS, the Company terminated your employment on or about November 26, 2007;\nWHEREAS, the Parties desire to amicably sever the employment and other business relationships that existed between them;\nWHEREAS, in consideration of the services rendered by you and the additional undertakings provided for herein, the Other Parties\nhave agreed to compensate you by having the Company provide the severance compensation described in this Agreement;\nWHEREAS, the Parties have agreed, without any Party admitting liability of any kind, to enter into this Agreement pursuant to which\neach and every claim and/or cause of action asserted or which could have been asserted by you against the Company, Sims, Blount and any of\ntheir affiliates will be forever and finally released; and\nWHEREAS, the Parties have read and understand the terms and provisions of this Agreement, and desire and intend to be bound by the\nterms and provisions of this Agreement applicable to such Party.\nNOW, THEREFORE, in consideration of the covenants and mutual promises and agreements herein contained, and other valuable\nconsideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:\n1.\nRelease and Waiver Agreement. The Parties acknowledge and understand that this Agreement is a mutual release and\nwaiver contract and that this document is legally binding. You and the Other Parties understand that by signing this Agreement, each Party has\nread and understood each provision and is agreeing to all of the provisions set forth in the Agreement applicable to such Party.\n2.\nClaims Covered by Agreement. You and the Other Parties acknowledge and understand that this Agreement applies only\nto claims which accrue or have accrued prior to the date this Agreement is executed by you and the Other Parties.\n3.\nTermination of Employment and Other Arrangements. Your employment with the Company, and any other arrangement\n(including claims of ownership of any equity interest in any entity) you may have had with any Other Party or their affiliates, is terminated\neffective November 26, 2007.\n4.\nSeverance Benefits. In exchange for the promises you make in this Agreement, the Company covenants and agrees to pay\nyou severance compensation in the lump sum amount of Two Million One Hundred Thousand and no/100 Dollars ($2,100,000) (the\n“Severance Compensation”). The Company’s payment of this Severance Compensation is made in connection with the severance of services\nand is subject to applicable federal, state, and local taxes and withholding. The Company and Graves agree to file all tax returns consistent\nwith the agreement that such payment is made in connection with the severance of services. This Severance Compensation is above and\nbeyond any compensation owed to you separate and apart from this Agreement, whether in connection with your employment with the\nCompany, your arrangement with Sims, Blount or any Other Party Releasee (defined below) or otherwise.\nYou will also receive continued paid medical and dental coverage for you and your dependents, at no cost to you, under the Consolidated\nOmnibus Budget Reconciliation Act of 1985 (“COBRA”) for 18 month(s) in the amount of $1,014.00 per month, provided that you make a valid\nCOBRA election. In the event you become eligible for coverage as a participant or beneficiary in an employee welfare benefit plan of another\ncompany at any time during the 18 month period following execution of this Agreement, the Company's obligation to pay monthly COBRA\npremiums for you shall cease. You agree to notify the Company immediately upon becoming eligible to participate (as participant or beneficiary)\nin another company's benefit plan. Employee welfare benefit plan as used herein includes but is not limited to benefit plans providing coverage\nfor medical, dental, and other healthcare related expenses.\nYou acknowledge that this Severance Compensation and continued medical and dental coverage are in addition to any monies or benefits to\nwhich you were already entitled. The Severance Compensation will be paid to you on the first business day following the expiration of the seven\nday (7) revocation period for this Agreement described in Paragraph 7c. below (but only if you do not revoke the Agreement during this period).\nThe continuation of your medical and dental coverage on the terms described above is also contingent on your not revoking this Agreement\nduring the seven (7) day revocation period.\n5.\nRelease And Waiver By Other Parties. In consideration for (i) the conveyance of all rights, title and interests, if any, in and\nto the ownership interests in the Company or any other affiliates of the Other Parties, and any claims for any such interests, by Graves and (ii) the\ncovenants herein, the Other Parties agree to the following:\na.\nThe Company hereby releases, acquits, defends, holds harmless, and agrees to indemnify Graves with respect to any\nclaims, losses, liabilities, obligations and causes of action, known or unknown, by the Company, Genesis Energy, L.P., their parents,\naffiliates and subsidiaries, including but not limited to Denbury Resources Inc. and its affiliates and subsidiaries, their respective\nofficers, directors, partners, managers, employees, stockholders, members, representatives and agents (collectively “the Company\nReleasees”), arising out of, connected with, or relating to: (i) Graves’ employment with the Company; (ii) Graves’ duties as an officer of\nthe Company; and (iii) any fiduciary duty owed by Graves to the Other Parties released herein. The Company represents and warrants\nthat no Company Releasee has assigned to any third party any claim involving Brad Graves or otherwise authorized any third party to\nassert any claim on its behalf against Graves.\nb.\nEach of Sims and Blount hereby release, acquit, defend, hold harmless, and agree to indemnify Graves with respect to\nany claims, losses, liabilities, obligations and causes of action, known or unknown, by such party and his respective affiliates other than\nthe Company Releasees, including his family, estate, heirs, beneficiaries, executors, and administrators (including their successors and\nassigns) and their respective officers, directors, partners, managers, employees, stockholders, members, representatives and agents\n(collectively, the “Sims Releasees”), arising out of, connected with, or relating to any duty owed by Graves to such Sims Releasees.\n6.\nRelease and Waiver By Graves. In consideration for the Severance Compensation described in this Agreement, you agree to\nthe following:\na.\nYou knowingly and voluntarily waive, release, acquit, defend, hold harmless, and agree to indemnify the Company\nReleasees and the Sims Releasees (collectively the “Other Party Releasees”), with respect to any and all claims, losses, liabilities,\nobligations and causes of action, known and unknown, by you and your affiliates, including your family, estate, heirs, beneficiaries,\nexecutors, and administrators (including their successors and assigns) and their respective officers, directors, partners, managers,\nemployees, stockholders, members, representatives and agents, including their successors and assigns (collectively, the “Graves\nReleasees”), arising out of, connected with, or relating to: (i) your employment or any arrangement you may have had with any Other\nParty Releasee; (ii) the Other Party Releasees’ refusal or failure to continue your employment or any arrangement you may have had\nwith any Other Party Releasee; or (iii) the termination of your employment or any arrangement you may have had with any Other Party\nReleasee, including, but not limited to, claims for compensation, commissions, bonuses, equity or member interests (including any\nclaim which might be made under the letter dated August 8, 2006, among the Company, Denbury Resources, Inc. and Sims),\ndistributions, distribution rights, stock options, other wages and benefits, breach of contract, wrongful termination, impairment of\neconomic opportunity, intentional infliction of emotional distress, claims based on personal injury, work-related accident, any breach of\nimplied or express covenant of good faith and fair dealing,\nviolation of public policy, or any other contract, tort or personal injury claim, or claim based on any municipal, state or federal statute,\nregulation or ordinance relating to employment, employment discrimination or retaliation, including Title VII of the Civil Rights Act of\n1964, as amended, 42 U.S.C . § 2000 et seq.; The Civil Rights Act of 1866, as amended, 42 U.S.C . § 1981; The Civil Rights Act of\n1991, as amended, 42 U.S .C . § 1981a; The Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C . § 621 et seq.;\nAmericans With Disabilities Act, as amended, 42 U.S.C . § 12101 et seq.; Fair Labor Standards Act, as amended, 29 U.S.C . § 201, et\nseq.; Equal Pay Act, as amended, 29 U.S.C. §201 et seq.; National Labor Relations Act, as amended, 29 U.S.C . § 151 et seq.; Worker\nAdjustment and Retraining Notification Act, as amended, 29 U.S.C . § 2101 et seq., Employee Retirement Income Security Act of 1974,\nas amended, 29 U.S.C. § 1000 et seq.; Family and Medical Leave Act, as amended, 29 U.S.C . § 2601, et seq.; Texas Labor Code §\n21.001, et seq.; or any other statute, rule, regulation, ordinance, or common civil or other law, or judicial or administrative interpretation\nwhether promulgated by federal, state, local or other jurisdiction or political subdivision.\nb.\nYou understand and agree that by signing this Agreement, you — on behalf of yourself and each Graves Releasee —\nagree to give up any right or entitlement you may have under federal, state or local law against the Other Party Releasees, concerning\nany events related to your employment or termination, or the Company’s failure to continue your employment or any other arrangement\nyou may have with any Other Party Releasee. This Agreement extinguishes any potential employment discrimination claims you may\nhave relating to your employment with the Company and the Company’s termination of your employment existing on the date you sign\nthis Agreement or any other arrangement you may have with any Other Party Releasee. Although this Agreement does not bar you from\nfiling a charge of discrimination with the Equal Employment Opportunity Commission or any state or local civil rights agency, by this\nAgreement you affirmatively, knowingly and voluntarily waive any claim or right to monetary or equitable relief from any such charge\nof discrimination.\nc.\nYou further represent and warrant that you have not assigned to any third party any claim involving the Other Party\nReleasees or authorized any third party to assert on your behalf any claim against the Other Party Releasees. If a third party asserts a\nclaim against the Other Party Releasees on your behalf or includes you as a class member in any class action involving any claim, you\nagree to not accept any benefits or damages relating or arising out of such claim.\n7. Consultation with Attorney, Review Period, and Revocation Period.\na.\nYou are advised, and acknowledge that you have been advised, to consult with an attorney prior to executing this\nAgreement concerning the meaning, import, and legal significance of this Agreement. You acknowledge that you have read this\nAgreement, as signified by your signature hereto, and are voluntarily executing the same for the purposes and consideration herein\nexpressed.\nb.\nYou acknowledge that you have been provided with a period of at least twenty-one (21) calendar days within which to\nconsider, review, and reflect upon the terms of this Agreement. Any discussions about or changes to the Agreement, whether material or\nimmaterial, do not restart the running of the 21-day period.\nc.\nYou have seven (7) calendar days in which you may revoke this Agreement after you sign it. If you choose to revoke\nthe Agreement, please notify the General Counsel of the Company in writing prior to the expiration of seven (7) calendar days after you\nhave signed the Agreement.\nd.\nThis Agreement shall not be effective until the expiration of seven (7) calendar days after you sign it without revoking\nit.\n8.\nGeneral Partner Liability Insurance. You will continue to be insured or otherwise indemnified to the extent you are currently\ninsured under the terms of the Company’s General Liability Insurance Policy including Directors and Officers Coverage with respect to any and\nall claims, losses, liabilities, obligations and causes of action arising out of, connected with, or relating to: (i) your employment; or (ii) the\ntermination of your employment. To the extent tail coverage is necessary to maintain coverage as currently existing and reasonably available (but\nnot at a cost in excess of 125% of current premiums), Company shall acquire same at no expense to Graves.\n9.\nConfidentiality. You shall treat the terms of this Agreement as strictly confidential. You shall not disclose the terms of this\nAgreement to anyone other than your spouse, attorney, accountant or tax advisor, without the Company’s prior written approval, except as may\nbe required by law, or court order. If you receive a request pursuant to applicable law to disclose the existence or terms of this Agreement, you\nshall promptly notify each other Party to enable it to seek a protective order or other appropriate remedy. You agree to notify your spouse,\nattorney, accountant and tax advisor of the confidential nature of this Agreement.\nThe Parties may use this Agreement as evidence in a subsequent proceeding in which a Party alleges a breach of this Agreement. Other\nthan the exceptions set forth herein, the Parties agree they shall not voluntarily introduce this Agreement as evidence in any proceeding or in any\nlawsuit unless required by law or court order. The Parties agree that this confidentiality obligation is contractual and its terms are material to this\nAgreement.\n10. Confidential Information and Trade Secrets. You agree that you shall not, without the prior written consent of the Company,\ndirectly or indirectly, disclose, reveal or communicate, or cause or allow to be disclosed, revealed or communicated to any unauthorized person\nany of any Company Releasee’s confidential matters, proprietary information or trade secrets, including, without limitation, studies, plans,\nfinancial data, information regarding projects or development prospects, acquisition candidates, strategies or any other proprietary business\ninformation or plans you had knowledge of prior to the date of this Agreement, including the projects set forth on Exhibit A. You further agree\nnot to utilize any such confidential or proprietary information or trade secrets of Company for your benefit or the\nbenefit of others, including, without limitation, others in direct or indirect competition with the Other Parties and their affiliates. The obligations\nset forth in this Paragraph 10 shall be in addition to any other confidentiality obligations that you may have to any of the Other Party Releasees.\nThe Parties expressly acknowledge that Graves was hired by the Company due to his existing general industry knowledge and expertise. This\ncovenant is not intended to restrict Graves’ ability to use or leverage that knowledge or experience, only to prevent Graves from using\nconfidential information of the Other Parties and their affiliates.\nYou further acknowledge that the injury the Other Party Releasees will suffer in the event of your breach of any covenant or agreement\nset forth in Paragraphs 9, 10, 11 and 13 cannot be compensated by monetary damages alone.\n11.\nCompany Property. You agree to return all Company property, equipment, documents and other tangible things, including\nkeys, pagers, corporate credit cards, and laptop or other computers, in accordance with the Company’s policies and rules, before the date on\nwhich this Agreement becomes effective. Company agrees to provide in writing an itemized list of any items it contends are Company property.\nYou agree to not destroy, alter, erase, or otherwise change any software, data, or other information belonging to the Company. You further agree\nthe Company may withhold from your Severance Compensation monies equal to the value of Company property, equipment and tangible things\nyou fail to return provided that no sums may be withheld if Company has not provided such itemized listing to Graves. In addition, you agree\nthat the Company may withhold from your Severance Compensation any monies you owe the Company, including but not limited to, charges to\nthe corporate credit card for which you did not submit a valid expense report, unused travel advances, salary draws, etc. Prior to withholding\nsums for such charges, Company must tender a written list of rejected expenses or charges, and provided Graves a reasonable opportunity to cure\nsuch defect.\n12.\nCooperation. For a reasonable period after your termination, you agree to make yourself available and to reasonably cooperate\nwith each other Party in any future claims or lawsuits involving the Other Party Releasees where you have knowledge of the underlying facts or\nto affect the completion of your outstanding employment duties or the transfer of such duties. Each such Requesting Party agrees to reimburse\nyou for time you spend at such Party’s request at a rate per hour equivalent to what you earned with the Company immediately before your notice\nof termination. Any obligations performed to affect the completion or transfer of your duties shall be performed as an independent contractor, not\nas an employee. You will not be reimbursed if you are a named party in any claim or lawsuit for activities associated with your defense except to\nthe extent insurance or indemnity is available to other executives. All time spent cooperating with Company on its defense shall be reimbursed.\nIn addition, you agree not to voluntarily aid, assist or cooperate with any claimant or plaintiff or their attorneys or agents in any claim or lawsuit\ncommenced against the Other Party Releasees.\nNothing in this Agreement should be construed to prevent you from initiating or participating in any state of federal agency\nadministrative proceeding or from testifying at an administrative hearing, deposition, or in court in response to a lawful subpoena .\n13.\nNon-Solicitation. For one (1) year following the date of this Agreement, you agree not to directly or indirectly, on your own\nbehalf or on behalf of another person or entity, hire or solicit for hire any employees of the Company or any of its affiliates or in any manner\nattempt to influence or induce any employee of the Company or any of its affiliates to leave their employment.\n14.\nNo Authority. As of your termination date, you shall have no authority to obligate the Company in any manner, and shall not\nenter into any contracts on the Company’s behalf. You shall not make any representation, warranty, or other statement, or take any action, that\nmay be construed by a third party to indicate that you have authority to obligate the Company or to enter into a contract on the Company’s\nbehalf.\n15.\nPublic Statements. The Parties mutually agree not to make any untrue, misleading, or defamatory statements concerning any\nof Other Parties.\n16.\nNon-Admission of Wrongdoing. This Agreement shall not in any way be construed as an admission of liability or as an\nadmission that any of the Other Party Releasees have acted wrongfully with respect to you. Each of the Other Party Releasees specifically denies\nand disclaims any such liability or wrongful acts.\n17.\nReference Letters. If a prospective employer contacts the Company to obtain your employment information or a\nrecommendation, the Company will provide only your employment dates and job title, unless you authorize the Company in writing to provide\nadditional information.\n18.\nKnowing and Voluntary Agreement. You acknowledge and agree that after you received a copy of this Agreement: (i) you\nhave had an opportunity to review this Agreement and to consult an attorney before signing it; and (ii) you enter into the Agreement knowingly,\nvoluntarily and after any consultations with your attorney or other advisor as you deemed appropriate.\n19.\nChoice of Law and Venue. You and the Company agree that this Agreement shall be performed in Harris County, Texas and\nthat the laws of the State of Texas shall govern the enforceability, interpretation and legal effect of this Agreement. The Parties agree to submit to\nthe jurisdiction of the federal and state courts sitting in Harris County, Texas, for all purposes relating to the validity, interpretation, or\nenforcement of this Agreement, including, without limitation, any application for injunctive relief.\n20.\nSeverability. The Company and you agree that, if any term of this Agreement shall be determined by a court to be void or\nunenforceable, the remaining provisions will remain effective and legally binding, and the void or unenforceable term shall be deemed not to be a\npart of this Agreement.\n21.\nAmendments. Any modification of this Agreement or additional obligation assumed by any Party in connection with this\nAgreement shall be binding only if evidenced in\nwriting signed by each Party or an authorized representative of each Party. Additionally, this Agreement cannot be changed or terminated orally,\nbut may be changed only through written addendum executed by all Parties.\n22.\nRemedies. Any material breach by a Party of the terms and conditions contained in this Agreement shall give the Other Parties\nthe right to discontinue the performance of any unperformed duties and obligations under this Agreement to the extent permitted by applicable\nlaw. If a Party breaches any term of the Agreement, any delay by another Party to enforce the Agreement shall not be deemed a waiver,\nacceptance, or acquiescence. No waiver shall bind a Party unless supported by consideration, executed in writing, and delivered to the first Party\nby an authorized representative.\n23.\nEffective Period. This Agreement is null and void if: (i) you fail to execute and return it within 21 calendar days of receipt; or\n(ii) you sign it within 21 calendar days, but revoke your execution within seven (7) calendar days after signing it.\n24.\nEntire Agreement. This Agreement constitutes our entire agreement and supersedes any prior agreements or understanding\nbetween you and the Other Party Releasees, except any confidentiality obligations referred to in Paragraph 10. The Parties acknowledge that they\neach enter into this Agreement without reliance on any written or oral promise or representation, other than those contained in this Agreement.\nIN WITNESS WHEREOF, this Confidential Severance Agreement and General Release has been executed by each of the listed parties\nas of the later date below.\nBrad N. Graves\nSignature: _______Brad Graves______________\nDate: _____December 20, 2007______________\nGenesis Energy, Inc.\nBy: ___Ross A. Benavides__________________\nRoss A. Benavides, Chief Financial Officer & General Counsel\nDate: ____December 20, 2007_______________\nGrant E. Sims\nSignature: ____Grant E. Sims_________________\nDate: ________December 20, 2007____________\nJoseph A. Blount, Jr.\nSignature: ________Joseph A. Blount, Jr.\nDate: ___________December 20, 2007_________	EX-10.1 2 ex10-1.htm EXHIBIT 10.1 CONFIDENTIAL SEVERANCE AGREEMENT AND GENERAL RELEASE\nCONFIDENTIAL SEVERANCE AGREEMENT AND GENERAIL REL.EASE\nThis Confidential Severance Agreement and General Release (“Agreement”), is made and entered into by and between the undersigned\nindividual Brad N. Graves (“Graves” or “you”) and Genesis Energy, Inc. (the “Company”), Grant E. Sims (“Sims”), and Joseph A. Blount, Jr.\n(“Blount”) (the signatories to this Agreement will be referred to collectively as the “Parties,” and the Parties other than you are the “Other\nParties”) as follows:\nWHEREAS, Sims, Blount and you were negotiating the definitive terms and conditions pursuant to which (i) the Company and its\naffiliates would, under certain circumstances, compensate a management team led by Sims (and to include you initially) for services rendered to\nthe Company, and (ii) how, and under what circumstances, Sims, Blount, you and any other members of that management team potentially might\nshare such compensation;\nWHEREAS, the Company employed you as Executive Vice President since on or about August 8, 2006;\nWHEREAS, the Company terminated your employment on or about November 26, 2007;\nWHEREAS, the Parties desire to amicably sever the employment and other business relationships that existed between them;\nWHEREAS, in consideration of the services rendered by you and the additional undertakings provided for herein, the Other Parties\nhave agreed to compensate you by having the Company provide the severance compensation described in this Agreement;\nWHEREAS, the Parties have agreed, without any Party admitting liability of any kind, to enter into this Agreement pursuant to which\neach and every claim and/or cause of action asserted or which could have been asserted by you against the Company, Sims, Blount and any of\ntheir affiliates will be forever and finally released; and\nWHEREAS, the Parties have read and understand the terms and provisions of this Agreement, and desire and intend to be bound by the\nterms and provisions of this Agreement applicable to such Party.\nNOW, THEREFORE, in consideration of the covenants and mutual promises and agreements herein contained, and other valuable\nconsideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:\n1. Release and Waiver Agreement. The Parties acknowledge and understand that this Agreement is a mutual release and\nwaiver contract and that this document is legally binding. You and the Other Parties understand that by signing this Agreement, each Party has\nread and understood each provision and is agreeing to all of the provisions set forth in the Agreement applicable to such Party.\n2. Claims Covered by Agreement. You and the Other Parties acknowledge and understand that this Agreement applies only\nto claims which accrue or have accrued prior to the date this Agreement is executed by you and the Other Parties.\n3. Termination of Employment and Other Arrangements. Your employment with the Company, and any other arrangement\n(including claims of ownership of any equity interest in any entity) you may have had with any Other Party or their affiliates, is terminated\neffective November 26, 2007.\n4. Severance Benefits. In exchange for the promises you make in this Agreement, the Company covenants and agrees to pay\nyou severance compensation in the lump sum amount of Two Million One Hundred Thousand and no/100 Dollars ($2,100,000) (the\n“Severance Compensation”). The Company’s payment of this Severance Compensation is made in connection with the severance of services\nand is subject to applicable federal, state, and local taxes and withholding. The Company and Graves agree to file all tax returns consistent\nwith the agreement that such payment is made in connection with the severance of services. This Severance Compensation is above and\nbeyond any compensation owed to you separate and apart from this Agreement, whether in connection with your employment with the\nCompany, your arrangement with Sims, Blount or any Other Party Releasee (defined below) or otherwise.\nYou will also receive continued paid medical and dental coverage for you and your dependents, at no cost to you, under the Consolidated\nOmnibus Budget Reconciliation Act of 1985 (“COBRA”) for 18 month(s) in the amount of $1,014.00 per month, provided that you make a valid\nCOBRA election. In the event you become eligible for coverage as a participant or beneficiary in an employee welfare benefit plan of another\ncompany at any time during the 18 month period following execution of this Agreement, the Company's obligation to pay monthly COBRA\npremiums for you shall cease. You agree to notify the Company immediately upon becoming eligible to participate (as participant or beneficiary)\nin another company's benefit plan. Employee welfare benefit plan as used herein includes but is not limited to benefit plans providing coverage\nfor medical, dental, and other healthcare related expenses.\nYou acknowledge that this Severance Compensation and continued medical and dental coverage are in addition to any monies or benefits to\nwhich you were already entitled. The Severance Compensation will be paid to you on the first business day following the expiration of the seven\nday (7) revocation period for this Agreement described in Paragraph 7c. below (but only if you do not revoke the Agreement during this period).\nThe continuation of your medical and dental coverage on the terms described above is also contingent on your not revoking this Agreement\nduring the seven (7) day revocation period.\n5. Release And Waiver By Other Parties. In consideration for (i) the conveyance of all rights, title and interests, if any, in and\nto the ownership interests in the Company or any other affiliates of the Other Parties, and any claims for any such interests, by Graves and (ii) the\ncovenants herein, the Other Parties agree to the following:\na. The Company hereby releases, acquits, defends, holds harmless, and agrees to indemnify Graves with respect to any\nclaims, losses, liabilities, obligations and causes of action, known or unknown, by the Company, Genesis Energy, L.P., their parents,\naffiliates and subsidiaries, including but not limited to Denbury Resources Inc. and its affiliates and subsidiaries, their respective\nofficers, directors, partners, managers, employees, stockholders, members, representatives and agents (collectively “the Company\nReleasees”), arising out of, connected with, or relating to: (i) Graves’ employment with the Company; (ii) Graves’ duties as an officer of\nthe Company; and (iii) any fiduciary duty owed by Graves to the Other Parties released herein. The Company represents and warrants\nthat no Company Releasee has assigned to any third party any claim involving Brad Graves or otherwise authorized any third party to\nassert any claim on its behalf against Graves.\nb. Each of Sims and Blount hereby release, acquit, defend, hold harmless, and agree to indemnify Graves with respect to\nany claims, losses, liabilities, obligations and causes of action, known or unknown, by such party and his respective affiliates other than\nthe Company Releasees, including his family, estate, heirs, beneficiaries, executors, and administrators (including their successors and\nassigns) and their respective officers, directors, partners, managers, employees, stockholders, members, representatives and agents\n(collectively, the “Sims Releasees”), arising out of, connected with, or relating to any duty owed by Graves to such Sims Releasees.\n6. Release and Waiver By Graves. In consideration for the Severance Compensation described in this Agreement, you agree to\nthe following:\na. You knowingly and voluntarily waive, release, acquit, defend, hold harmless, and agree to indemnify the Company\nReleasees and the Sims Releasees (collectively the “Other Party Releasees”), with respect to any and all claims, losses, liabilities,\nobligations and causes of action, known and unknown, by you and your affiliates, including your family, estate, heirs, beneficiaries,\nexecutors, and administrators (including their successors and assigns) and their respective officers, directors, partners, managers,\nemployees, stockholders, members, representatives and agents, including their successors and assigns (collectively, the “Graves\nReleasees”), arising out of, connected with, or relating to: (i) your employment or any arrangement you may have had with any Other\nParty Releasee; (ii) the Other Party Releasees’ refusal or failure to continue your employment or any arrangement you may have had\nwith any Other Party Releasee; or (iii) the termination of your employment or any arrangement you may have had with any Other Party\nReleasee, including, but not limited to, claims for compensation, commissions, bonuses, equity or member interests (including any\nclaim which might be made under the letter dated August 8, 2006, among the Company, Denbury Resources, Inc. and Sims),\ndistributions, distribution rights, stock options, other wages and benefits, breach of contract, wrongful termination, impairment of\neconomic opportunity, intentional infliction of emotional distress, claims based on personal injury, work-related accident, any breach of\nimplied or express covenant of good faith and fair dealing,\nviolation of public policy, or any other contract, tort or personal injury claim, or claim based on any municipal, state or federal statute,\nregulation or ordinance relating to employment, employment discrimination or retaliation, including Title VII of the Civil Rights Act of\n1964, as amended, 42 U.S.C. § 2000 et seq.; The Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981; The Civil Rights Act of\n1991, as amended, 42 U.S.C. § 1981a; The Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.;\nAmericans With Disabilities Act, as amended, 42 U.S.C. § 12101 et seq.; Fair Labor Standards Act, as amended, 29 U.S.C. § 201, et\nseq.; Equal Pay Act, as amended, 29 U.S.C. §201 et seq.; National Labor Relations Act, as amended, 29 U.S.C. § 151 et seq.; Worker\nAdjustment and Retraining Notification Act, as amended, 29 U.S.C. § 2101 et seq., Employee Retirement Income Security Act of 1974,\nas amended, 29 U.S.C. § 1000 et seq.; Family and Medical Leave Act, as amended, 29 U.S.C. § 2601, et seq.; Texas Labor Code §\n21.001, et seq.; or any other statute, rule, regulation, ordinance, or common civil or other law, or judicial or administrative interpretation\nwhether promulgated by federal, state, local or other jurisdiction or political subdivision.\nb. You understand and agree that by signing this Agreement, you — on behalf of yourself and each Graves Releasee —\nagree to give up any right or entitlement you may have under federal, state or local law against the Other Party Releasees, concerning\nany events related to your employment or termination, or the Company’s failure to continue your employment or any other arrangement\nyou may have with any Other Party Releasee. This Agreement extinguishes any potential employment discrimination claims you may\nhave relating to your employment with the Company and the Company’s termination of your employment existing on the date you sign\nthis Agreement or any other arrangement you may have with any Other Party Releasee. Although this Agreement does not bar you from\nfiling a charge of discrimination with the Equal Employment Opportunity Commission or any state or local civil rights agency, by this\nAgreement you affirmatively, knowingly and voluntarily waive any claim or right to monetary or equitable relief from any such charge\nof discrimination.\nC. You further represent and warrant that you have not assigned to any third party any claim involving the Other Party\nReleasees or authorized any third party to assert on your behalf any claim against the Other Party Releasees. If a third party asserts a\nclaim against the Other Party Releasees on your behalf or includes you as a class member in any class action involving any claim, you\nagree to not accept any benefits or damages relating or arising out of such claim.\n. Consultation with Attorney, Review Period, and Revocation Period.\na. You are advised, and acknowledge that you have been advised, to consult with an attorney prior to executing this\nAgreement concerning the meaning, import, and legal significance of this Agreement. You acknowledge that you have read this\nAgreement, as signified by your signature hereto, and are voluntarily executing the same for the purposes and consideration herein\nexpressed.\nb. You acknowledge that you have been provided with a period of at least twenty-one (21) calendar days within which to\nconsider, review, and reflect upon the terms of this Agreement. Any discussions about or changes to the Agreement, whether material or\nimmaterial, do not restart the running of the 21-day period.\nC. You have seven (7) calendar days in which you may revoke this Agreement after you sign it. If you choose to revoke\nthe Agreement, please notify the General Counsel of the Company in writing prior to the expiration of seven (7) calendar days after you\nhave signed the Agreement.\nd. This Agreement shall not be effective until the expiration of seven (7) calendar days after you sign it without revoking\nit.\n8. General Partner Liability Insurance. You will continue to be insured or otherwise indemnified to the extent you are currently\ninsured under the terms of the Company’s General Liability Insurance Policy including Directors and Officers Coverage with respect to any and\nall claims, losses, liabilities, obligations and causes of action arising out of, connected with, or relating to: (i) your employment; or (ii) the\ntermination of your employment. To the extent tail coverage is necessary to maintain coverage as currently existing and reasonably available (but\nnot at a cost in excess of 125% of current premiums), Company shall acquire same at no expense to Graves.\n9. Confidentiality. You shall treat the terms of this Agreement as strictly confidential. You shall not disclose the terms of this\nAgreement to anyone other than your spouse, attorney, accountant or tax advisor, without the Company’s prior written approval, except as may\nbe required by law, or court order. If you receive a request pursuant to applicable law to disclose the existence or terms of this Agreement, you\nshall promptly notify each other Party to enable it to seek a protective order or other appropriate remedy. You agree to notify your spouse,\nattorney, accountant and tax advisor of the confidential nature of this Agreement.\nThe Parties may use this Agreement as evidence in a subsequent proceeding in which a Party alleges a breach of this Agreement. Other\nthan the exceptions set forth herein, the Parties agree they shall not voluntarily introduce this Agreement as evidence in any proceeding or in any\nlawsuit unless required by law or court order. The Parties agree that this confidentiality obligation is contractual and its terms are material to this\nAgreement.\n10. Confidential Information and Trade Secrets. You agree that you shall not, without the prior written consent of the Company,\ndirectly or indirectly, disclose, reveal or communicate, or cause or allow to be disclosed, revealed or communicated to any unauthorized person\nany of any Company Releasee’s confidential matters, proprietary information or trade secrets, including, without limitation, studies, plans,\nfinancial data, information regarding projects or development prospects, acquisition candidates, strategies or any other proprietary business\ninformation or plans you had knowledge of prior to the date of this Agreement, including the projects set forth on Exhibit A. You further agree\nnot to utilize any such confidential or proprietary information or trade secrets of Company for your benefit or the\nbenefit of others, including, without limitation, others in direct or indirect competition with the Other Parties and their affiliates. The obligations\nset forth in this Paragraph 10 shall be in addition to any other confidentiality obligations that you may have to any of the Other Party Releasees.\nThe Parties expressly acknowledge that Graves was hired by the Company due to his existing general industry knowledge and expertise. This\ncovenant is not intended to restrict Graves’ ability to use or leverage that knowledge or experience, only to prevent Graves from using\nconfidential information of the Other Parties and their affiliates.\nYou further acknowledge that the injury the Other Party Releasees will suffer in the event of your breach of any covenant or agreement\nset forth in Paragraphs 9, 10, 11 and 13 cannot be compensated by monetary damages alone.\n11. Company Property. You agree to return all Company property, equipment, documents and other tangible things, including\nkeys, pagers, corporate credit cards, and laptop or other computers, in accordance with the Company’s policies and rules, before the date on\nwhich this Agreement becomes effective. Company agrees to provide in writing an itemized list of any items it contends are Company property.\nYou agree to not destroy, alter, erase, or otherwise change any software, data, or other information belonging to the Company. You further agree\nthe Company may withhold from your Severance Compensation monies equal to the value of Company property, equipment and tangible things\nyou fail to return provided that no sums may be withheld if Company has not provided such itemized listing to Graves. In addition, you agree\nthat the Company may withhold from your Severance Compensation any monies you owe the Company, including but not limited to, charges to\nthe corporate credit card for which you did not submit a valid expense report, unused travel advances, salary draws, etc. Prior to withholding\nsums for such charges, Company must tender a written list of rejected expenses or charges, and provided Graves a reasonable opportunity to cure\nsuch defect.\n12. Cooperation. For a reasonable period after your termination, you agree to make yourself available and to reasonably cooperate\nwith each other Party in any future claims or lawsuits involving the Other Party Releasees where you have knowledge of the underlying facts or\nto affect the completion of your outstanding employment duties or the transfer of such duties. Each such Requesting Party agrees to reimburse\nyou for time you spend at such Party’s request at a rate per hour equivalent to what you earned with the Company immediately before your notice\nof termination. Any obligations performed to affect the completion or transfer of your duties shall be performed as an independent contractor, not\nas an employee. You will not be reimbursed if you are a named party in any claim or lawsuit for activities associated with your defense except to\nthe extent insurance or indemnity is available to other executives. All time spent cooperating with Company on its defense shall be reimbursed.\nIn addition, you agree not to voluntarily aid, assist or cooperate with any claimant or plaintiff or their attorneys or agents in any claim or lawsuit\ncommenced against the Other Party Releasees.\nNothing in this Agreement should be construed to prevent you from initiating or participating in any state of federal agency\nadministrative proceeding or from testifying at an administrative hearing, deposition, or in court in response to a lawful subpoena .\n13. Non-Solicitation. For one (1) year following the date of this Agreement, you agree not to directly or indirectly, on your own\nbehalf or on behalf of another person or entity, hire or solicit for hire any employees of the Company or any of its affiliates or in any manner\nattempt to influence or induce any employee of the Company or any of its affiliates to leave their employment.\n14. No Authority. As of your termination date, you shall have no authority to obligate the Company in any manner, and shall not\nenter into any contracts on the Company’s behalf. You shall not make any representation, warranty, or other statement, or take any action, that\nmay be construed by a third party to indicate that you have authority to obligate the Company or to enter into a contract on the Company’s\nbehalf.\n15. Public Statements. The Parties mutually agree not to make any untrue, misleading, or defamatory statements concerning any\nof Other Parties.\n16. Non-Admission of Wrongdoeing. This Agreement shall not in any way be construed as an admission of liability or as an\nadmission that any of the Other Party Releasees have acted wrongfully with respect to you. Each of the Other Party Releasees specifically denies\nand disclaims any such liability or wrongful acts.\n17. Reference Letters. If a prospective employer contacts the Company to obtain your employment information or a\nrecommendation, the Company will provide only your employment dates and job title, unless you authorize the Company in writing to provide\nadditional information.\n18. Knowing and Voluntary Agreement. You acknowledge and agree that after you received a copy of this Agreement: (i) you\nhave had an opportunity to review this Agreement and to consult an attorney before signing it; and (ii) you enter into the Agreement knowingly,\nvoluntarily and after any consultations with your attorney or other advisor as you deemed appropriate.\n19. Choice of I.aw and Venue. You and the Company agree that this Agreement shall be performed in Harris County, Texas and\nthat the laws of the State of Texas shall govern the enforceability, interpretation and legal effect of this Agreement. The Parties agree to submit to\nthe jurisdiction of the federal and state courts sitting in Harris County, Texas, for all purposes relating to the validity, interpretation, or\nenforcement of this Agreement, including, without limitation, any application for injunctive relief.\n20. Severability. The Company and you agree that, if any term of this Agreement shall be determined by a court to be void or\nunenforceable, the remaining provisions will remain effective and legally binding, and the void or unenforceable term shall be deemed not to be a\npart of this Agreement.\n21. Amendments. Any modification of this Agreement or additional obligation assumed by any Party in connection with this\nAgreement shall be binding only if evidenced in\nwriting signed by each Party or an authorized representative of each Party. Additionally, this Agreement cannot be changed or terminated orally,\nbut may be changed only through written addendum executed by all Parties.\n22, Remedies. Any material breach by a Party of the terms and conditions contained in this Agreement shall give the Other Parties\nthe right to discontinue the performance of any unperformed duties and obligations under this Agreement to the extent permitted by applicable\nlaw. If a Party breaches any term of the Agreement, any delay by another Party to enforce the Agreement shall not be deemed a waiver,\nacceptance, or acquiescence. No waiver shall bind a Party unless supported by consideration, executed in writing, and delivered to the first Party\nby an authorized representative.\n23. Effective Period. This Agreement is null and void if: (i) you fail to execute and return it within 21 calendar days of receipt; or\n(ii) you sign it within 21 calendar days, but revoke your execution within seven (7) calendar days after signing it.\n24. Entire Agreement. This Agreement constitutes our entire agreement and supersedes any prior agreements or understanding\nbetween you and the Other Party Releasees, except any confidentiality obligations referred to in Paragraph 10. The Parties acknowledge that they\neach enter into this Agreement without reliance on any written or oral promise or representation, other than those contained in this Agreement.\nIN WITNESS WHEREOF, this Confidential Severance Agreement and General Release has been executed by each of the listed parties\nas of the later date below.\nBrad N. Graves\nSignature: Brad Graves\nDate: December 20, 2007\nGenesis Energy, Inc.\nBy: Ross A. Benavides\nRoss A. Benavides, Chief Financial Officer & General Counsel\nDate: December 20, 2007\nGrant E. Sims\nSignature: Grant E. Sims\nDate: December 20, 2007\nJoseph A. Blount, Jr.\nSignature: Joseph A. Blount, Jr.\nDate: December 20, 2007	EX-10.1 2 ex10-1.htm EXHIBIT 10.1 CONFIDENTIAL SEVERANCE AGREEMENT AND GENERAL RELEASE\nCONFIDENTIAL SEVERANCE AGREEMENT AND GENERAL RELEASE\nThis Confidential Severance Agreement and General Release ("Agreement"), is made and entered into by and between the undersigned\nindividual Brad N. Graves ("Graves" or "you") and Genesis Energy, Inc. (the "Company"), Grant E. Sims ("Sims"), and Joseph A. Blount, Jr.\n("Blount") (the signatories to this Agreement will be referred to collectively as the "Parties," and the Parties other than you are the "Other\nParties") as follows:\nWHEREAS, Sims, Blount and you were negotiating the definitive terms and conditions pursuant to which (i) the Company and its\naffiliates would, under certain circumstances, compensate a management team led by Sims (and to include you initially) for services rendered to\nthe Company, and (ii) how, and under what circumstances, Sims, Blount, you and any other members of that management team potentially might\nshare such compensation;\nWHEREAS, the Company employed you as Executive Vice President since on or about August 8, 2006;\nWHEREAS, the Company terminated your employment on or about November 26, 2007;\nWHEREAS, the Parties desire to amicably sever the employment and other business relationships that existed between them;\nWHEREAS, in consideration of the services rendered by you and the additional undertakings provided for herein, the Other Parties\nhave agreed to compensate you by having the Company provide the severance compensation described in this Agreement;\nWHEREAS, the Parties have agreed, without any Party admitting liability of any kind, to enter into this Agreement pursuant to which\neach and every claim and/or cause of action asserted or which could have been asserted by you against the Company, Sims, Blount and any of\ntheir affiliates will be forever and finally released; and\nWHEREAS, the Parties have read and understand the terms and provisions of this Agreement, and desire and intend to be bound by the\nterms and provisions of this Agreement applicable to such Party.\nNOW, THEREFORE, in consideration of the covenants and mutual promises and agreements herein contained, and other valuable\nconsideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:\n1.\nRelease and Waiver Agreement. The Parties acknowledge and understand that this Agreement is a mutual release and\nwaiver contract and that this document is legally binding. You and the Other Parties understand that by signing this Agreement, each Party has\nread and understood each provision and is agreeing to all of the provisions set forth in the Agreement applicable to such Party.\n2.\nClaims Covered by Agreement. You and the Other Parties acknowledge and understand that this Agreement applies only\nto claims which accrue or have accrued prior to the date this Agreement is executed by you and the Other Parties.\n3.\nTermination of Employment and Other Arrangements. Your employment with the Company, and any other arrangement\n(including claims of ownership of any equity interest in any entity) you may have had with any Other Party or their affiliates, is terminated\neffective November 26, 2007.\n4.\nSeverance Benefits. In exchange for the promises you make in this Agreement, the Company covenants and agrees to pay\nyou severance compensation in the lump sum amount of Two Million One Hundred Thousand and no/100 Dollars ($2,100,000) (the\n"Severance Compensation"). The Company's payment of this Severance Compensation is made in connection with the severance of services\nand\nis\nsubject\nto\napplicable\nfederal,\nstate,\nand\nlocal\ntaxes\nand\nwithholding.\nThe\nCompany\nand\nGraves\nagree\nto\nfile\nall\ntax\nreturns\nconsistent\nwith the agreement that such payment is made in connection with the severance of services. This Severance Compensation is above and\nbeyond any compensation owed to you separate and apart from this Agreement, whether in connection with your employment with the\nCompany, your arrangement with Sims, Blount or any Other Party Releasee (defined below) or otherwise.\nYou will also receive continued paid medical and dental coverage for you and your dependents, at no cost to you, under the Consolidated\nOmnibus Budget Reconciliation Act of 1985 ("COBRA") for 18 month(s) in the amount of $1,014.00 per month, provided that you make a valid\nCOBRA election. In the event you become eligible for coverage as a participant or beneficiary in an employee welfare benefit plan of another\ncompany at any time during the 18 month period following execution of this Agreement, the Company's obligation to pay monthly COBRA\npremiums for you shall cease. You agree to notify the Company immediately upon becoming eligible to participate (as participant or beneficiary)\nin another company's benefit plan. Employee welfare benefit plan as used herein includes but is not limited to benefit plans providing coverage\nfor medical, dental, and other healthcare related expenses.\nYou\nacknowledge that this Severance Compensation and continued medical and dental coverage are in addition to any monies or benefits to\nwhich\nyou\nwere\nalready\nentitled.\nThe\nSeverance\nCompensation\nwill\nbe\npaid\nto\nyou\non\nthe\nfirst\nbusiness\nday\nfollowing\nthe\nexpiration\nof\nthe\nseven\nday (7) revocation period for this Agreement described in Paragraph 7c. below (but only if you do not revoke the Agreement during this period).\nThe continuation of your medical and dental coverage on the terms described above is also contingent on your not revoking this Agreement\nduring the seven (7) day revocation period.\n5.\nRelease And Waiver By Other Parties. In consideration for (i) the conveyance of all rights, title and interests, if any, in and\nto the ownership interests in the Company or any other affiliates of the Other Parties, and any claims for any such interests, by Graves and (ii) the\ncovenants herein, the Other Parties agree to the following:\na.\nThe Company hereby releases, acquits, defends, holds harmless, and agrees to indemnify Graves with respect to any\nclaims, losses, liabilities, obligations and causes of action, known or unknown, by the Company, Genesis Energy, L.P., their parents,\naffiliates and subsidiaries, including but not limited to Denbury Resources Inc. and its affiliates and subsidiaries, their respective\nofficers, directors, partners, managers, employees, stockholders, members, representatives and agents (collectively "the Company\nReleasees"), arising out of, connected with, or relating to: (i) Graves' employment with the Company; (ii) Graves' duties as an officer of\nthe Company; and (ili) any fiduciary duty owed by Graves to the Other Parties released herein. The Company represents and warrants\nthat no Company Releasee has assigned to any third party any claim involving Brad Graves or otherwise authorized any third party to\nassert any claim on its behalf against Graves.\nb.\nEach of Sims and Blount hereby release, acquit, defend, hold harmless, and agree to indemnify Graves with respect to\nany claims, losses, liabilities, obligations and causes of action, known or unknown, by such party and his respective affiliates other than\nthe Company Releasees, including his family, estate, heirs, beneficiaries, executors, and administrators (including their successors and\nassigns) and their respective officers, directors, partners, managers, employees, stockholders, members, representatives and\nagents\n(collectively, the "Sims Releasees"), arising out of, connected with, or relating to any duty owed by Graves to such Sims Releasees.\n6.\nRelease and Waiver By. Graves. In consideration for the Severance Compensation described in this Agreement, you agree\nto\nthe following:\na.\nYou knowingly and voluntarily waive, release, acquit, defend, hold harmless, and agree to indemnify the Company\nReleasees and the Sims Releasees (collectively the "Other Party Releasees"), with respect to any and all claims, losses, liabilities,\nobligations and causes of action, known and unknown, by you and your affiliates, including your family, estate, heirs, beneficiaries,\nexecutors, and administrators (including their successors and assigns) and their respective officers, directors, partners, managers,\nemployees, stockholders, members, representatives and agents, including their successors and assigns (collectively, the "Graves\nReleasees"), arising out of, connected with, or relating to: (i) your employment or any arrangement you may have had with any Other\nParty Releasee; (ii) the Other Party Releasees' refusal or failure to continue your employment or any arrangement you may have had\nwith any Other Party Releasee; or (iii) the termination of your employment or any arrangement you may have had with any Other Party\nReleasee, including, but not limited to, claims for compensation, commissions, bonuses, equity or member interests (including any\nclaim which might be made under the letter dated August 8, 2006, among the Company, Denbury Resources, Inc. and Sims),\ndistributions, distribution rights, stock options, other wages and benefits, breach of contract, wrongful termination, impairment of\neconomic opportunity, intentional infliction of emotional distress, claims based on personal injury, work-related accident, any breach of\nimplied or express covenant of good faith and fair dealing,\nviolation of public policy, or any other contract, tort or personal injury claim, or claim based on any municipal, state or federal statute,\nregulation or ordinance relating to employment, employment discrimination or retaliation, including Title VII of the Civil Rights Act of\n1964, as amended, 42 U.S.C. 8 2000 et seq.; The Civil Rights Act of 1866, as amended, 42 U.S.C. S 1981; The Civil Rights Act of\n1991, as amended, 42 U.S.C. 8 1981a; The Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. 8 621 et seq.;\nAmericans With Disabilities Act, as amended, 42 U.S.C. 8 12101 et seq.; Fair Labor Standards Act, as amended, 29 U.S.C. 8 201,\net\nseq.; Equal Pay Act, as amended, 29 U.S.C. 8201 et seq.; National Labor Relations Act, as amended, 29 U.S.C. 8 151 et seq.; Worker\nAdjustment and Retraining Notification Act, as amended, 29 U.S.C. S 2101 et seq., Employee Retirement Income Security Act of 1974,\nas amended, 29 U.S.C. 8 1000 et seq.; Family and Medical Leave Act, as amended, 29 U.S.C. 8 2601, et seq.; Texas Labor Code 8\n21.001, et seq.; or any other statute, rule, regulation, ordinance, or common civil or other law, or judicial or administrative interpretation\nwhether promulgated by federal, state, local or other jurisdiction or political subdivision.\nb.\nYou understand and agree that by signing this Agreement, you on behalf of yourself and each Graves Releasee\n-\nagree to give up any right or entitlement you may have under federal, state or local law against the Other Party Releasees, concerning\nany events related to your employment or termination, or the Company's failure to continue your employment or any other arrangement\nyou may have with any Other Party Releasee. This Agreement extinguishes any potential employment discrimination claims you may\nhave relating to your employment with the Company and the Company's termination of your employment existing on the date you sign\nthis Agreement or any other arrangement you may have with any Other Party Releasee. Although this Agreement does not bar you from\nfiling a charge of discrimination with the Equal Employment Opportunity Commission or any state or local civil rights agency, by this\nAgreement you affirmatively, knowingly and voluntarily waive any claim or right to monetary or equitable relief from any such charge\nof discrimination.\nC.\nYou further represent and warrant that you have not assigned to any third party any claim involving the Other Party\nReleasees or authorized any third party to assert on your behalf any claim against the Other Party Releasees. If a third party asserts a\nclaim against the Other Party Releasees on your behalf or includes you as a class member in any class action involving any claim, you\nagree to not accept any benefits or damages relating or arising out of such claim.\n7. Consultation with Attorney, Review Period, and Revocation Period.\na.\nYou are advised, and acknowledge that you have been advised, to consult with an attorney prior to executing this\nAgreement concerning the meaning, import, and legal significance of this Agreement. You acknowledge that you have read this\nAgreement, as signified by your signature hereto, and are voluntarily executing the same for the purposes and consideration herein\nexpressed.\nb.\nYou acknowledge that you have been provided with a period of at least twenty-one (21) calendar days within which to\nconsider, review, and reflect upon the terms of this Agreement. Any discussions about or changes to the Agreement, whether material or\nimmaterial, do not restart the running of the 21-day period.\nC.\nYou have seven (7) calendar days in which you may revoke this Agreement after you sign it. If you choose to revoke\nthe Agreement, please notify the General Counsel of the Company in writing prior to the expiration of seven (7) calendar days after you\nhave signed the Agreement.\nd.\nThis Agreement shall not be effective until the expiration of seven (7) calendar days after you sign it without revoking\nit.\n8.\nGeneral Partner Liability. Insurance. You will continue to be insured or otherwise indemnified to the extent you are currently\ninsured under the terms of the Company's General Liability Insurance Policy including Directors and Officers Coverage with respect to any and\nall claims, losses, liabilities, obligations and causes of action arising out of, connected with, or relating to: (i) your employment; or (ii) the\ntermination of your employment. To the extent tail coverage is necessary to maintain coverage as currently existing and reasonably available (but\nnot at a cost in excess of 125% of current premiums), Company shall acquire same at no expense to Graves.\n9.\nConfidentiality.. You shall treat the terms of this Agreement as strictly confidential. You shall not disclose the terms of this\nAgreement to anyone other than your spouse, attorney, accountant or tax advisor, without the Company's prior written approval, except as may\nbe required by law, or court order. If you receive a request pursuant to applicable law to disclose the existence or terms of this Agreement, you\nshall promptly notify each other Party to enable it to seek a protective order or other appropriate remedy. You agree to notify your spouse,\nattorney, accountant and tax advisor of the confidential nature of this Agreement.\nThe Parties may use this Agreement as evidence in a subsequent proceeding in which a Party alleges a breach of this Agreement. Other\nthan the exceptions set forth herein, the Parties agree they shall not voluntarily introduce this Agreement as evidence in any proceeding or in any\nlawsuit unless required by law or court order. The Parties agree that this confidentiality obligation is contractual and its terms are material to\nthis\nAgreement.\n10. Confidential Information and Trade Secrets. You agree that you shall not, without the prior written consent of the Company,\ndirectly or indirectly, disclose, reveal or communicate, or cause or allow to be disclosed, revealed or communicated to any unauthorized person\nany of any Company Releasee's confidential matters, proprietary information or trade secrets, including, without limitation, studies, plans,\nfinancial data, information regarding projects or development prospects, acquisition candidates, strategies or any other proprietary business\ninformation or plans you had knowledge of prior to the date of this Agreement, including the projects set forth on Exhibit A. You further agree\nnot to utilize any such confidential or proprietary information or trade secrets of Company for your benefit or the\nbenefit of others, including, without limitation, others in direct or indirect competition with the Other Parties and their affiliates. The obligations\nset forth in this Paragraph 10 shall be in addition to any other confidentiality obligations that you may have to any of the Other Party Releasees.\nThe Parties expressly acknowledge that Graves was hired by the Company due to his existing general industry knowledge and expertise. This\ncovenant is not intended to restrict Graves' ability to use or leverage that knowledge or experience, only to prevent Graves from using\nconfidential information of the Other Parties and their affiliates.\nYou further acknowledge that the injury the Other Party Releasees will suffer in the event of your breach of any covenant or agreement\nset forth in Paragraphs 9, 10, 11 and 13 cannot be compensated by monetary damages alone.\n11.\nCompany Property.. You agree to return all Company property, equipment, documents and other tangible things, including\nkeys, pagers, corporate credit cards, and laptop or other computers, in accordance with the Company's policies and rules, before the date on\nwhich this Agreement becomes effective. Company agrees to provide in writing an itemized list of any items it contends are Company property.\nYou\nagree to not destroy, alter, erase, or otherwise change any software, data, or other information belonging to the Company. You further agree\nthe Company may withhold from your Severance Compensation monies equal to the value of Company property, equipment and tangible things\nyou fail to return provided that no sums may be withheld if Company has not provided such itemized listing to Graves. In addition, you agree\nthat\nthe\nCompany\nmay\nwithhold\nfrom\nyour\nSeverance\nCompensation\nany\nmonies\nyou\nowe\nthe\nCompany,\nincluding\nbut\nnot\nlimited\nto,\ncharges\nto\nthe corporate credit card for which you did not submit a valid expense report, unused travel advances, salary draws, etc. Prior to withholding\nsums for such charges, Company must tender a written list of rejected expenses or charges, and provided Graves a reasonable opportunity to cure\nsuch defect.\n12.\nCooperation. For a reasonable period after your termination, you agree to make yourself available and to reasonably cooperate\nwith each other Party in any future claims or lawsuits involving the Other Party Releasees where you have knowledge of the underlying facts or\nto affect the completion of your outstanding employment duties or the transfer of such duties. Each such Requesting Party agrees to reimburse\nyou for time you spend at such Party's request at a rate per hour equivalent to what you earned with the Company immediately before your notice\nof termination. Any obligations performed to affect the completion or transfer of your duties shall be performed as an independent contractor, not\nas an employee. You will not be reimbursed if you are a named party in any claim or lawsuit for activities associated with your defense except\nto\nthe extent insurance or indemnity is available to other executives. All time spent cooperating with Company on its defense shall be reimbursed.\nIn addition, you agree not to voluntarily aid, assist or cooperate with any claimant or plaintiff or their attorneys or agents in any claim or lawsuit\ncommenced against the Other Party Releasees.\nNothing in this Agreement should be construed to prevent you from initiating or participating in any state of federal agency\nadministrative proceeding or from testifying at an administrative hearing, deposition, or in court in response to a lawful subpoena\n13.\nNon-Solicitation. For one (1) year following the date of this Agreement, you agree not to directly or indirectly, on your own\nbehalf or on behalf of another person or entity, hire or solicit for hire any employees of the Company or any of its affiliates or in any manner\nattempt to influence or induce any employee of the Company or any of its affiliates to leave their employment.\n14.\nNo Authority.. As of your termination date, you shall have no authority to obligate the Company in any manner, and shall not\nenter into any contracts on the Company's behalf. You shall not make any representation, warranty, or other statement, or take any action, that\nmay be construed by a third party to indicate that you have authority to obligate the Company or to enter into a contract on the Company's\nbehalf.\n15.\nPublic Statements. The Parties mutually agree not to make any untrue, misleading, or defamatory statements concerning any\nof Other Parties.\n16.\nNon-Admission of Wrongdoing. This Agreement shall not in any way be construed as an admission of liability or as an\nadmission that any of the Other Party Releasees have acted wrongfully with respect to you. Each of the Other Party Releasees specifically denies\nand disclaims any such liability or wrongful acts.\n17.\nReference Letters If a prospective employer contacts the Company to obtain your employment information or a\nrecommendation, the Company will provide only your employment dates and job title, unless you authorize the Company in writing to provide\nadditional information\n18.\nKnowing and Voluntary. Agreement. You acknowledge and agree that after you received a copy of this Agreement: (i) you\nhave had an opportunity to review this Agreement and to consult an attorney before signing it; and (ii) you enter into the Agreement knowingly,\nvoluntarily and after any consultations with your attorney or other advisor as you deemed appropriate.\n19.\nChoice of Law and Venue. You and the Company agree that this Agreement shall be performed in Harris County, Texas and\nthat the laws of the State of Texas shall govern the enforceability, interpretation and legal effect of this Agreement. The Parties agree to submit to\nthe jurisdiction of the federal and state courts sitting in Harris County, Texas, for all purposes relating to the validity, interpretation, or\nenforcement of this Agreement, including, without limitation, any application for injunctive relief.\n20.\nSeverability.. The Company and you agree that, if any term of this Agreement shall be determined by a court to be void or\nunenforceable, the remaining provisions will remain effective and legally binding, and the void or unenforceable term shall be deemed not to be a\npart of this Agreement.\n21.\nAmendments. Any modification of this Agreement or additional obligation assumed by any Party in connection with this\nAgreement shall be binding only if evidenced in\nwriting signed by each Party or an authorized representative of each Party. Additionally, this Agreement cannot be changed or terminated orally,\nbut may be changed only through written addendum executed by all Parties.\n22.\nRemedies. Any material breach by a Party of the terms and conditions contained in this Agreement shall give the Other Parties\nthe right to discontinue the performance of any unperformed duties and obligations under this Agreement to the extent permitted by applicable\nlaw. If a Party breaches any term of the Agreement, any delay by another Party to enforce the Agreement shall not be deemed a waiver,\nacceptance, or acquiescence. No waiver shall bind a Party unless supported by consideration, executed in writing, and delivered to the first Party\nby an authorized representative.\n23.\nEffective Period. This Agreement is null and void if: (i) you fail to execute and return it within 21 calendar days of receipt; or\n(ii) you sign it within 21 calendar days, but revoke your execution within seven (7) calendar days after signing it.\n24.\nEntire Agreement. This Agreement constitutes our entire agreement and supersedes any prior agreements or understanding\nbetween you and the Other Party Releasees, except any confidentiality obligations referred to in Paragraph 10. The Parties acknowledge that they\neach enter into this Agreement without reliance on any written or oral promise or representation, other than those contained in this Agreement.\nIN WITNESS WHEREOF, this Confidential Severance Agreement and General Release has been executed by each of the listed parties\nas of the later date below.\nBrad N. Graves\nSignature:\nBrad Graves\nDate:\nDecember 20, 2007\nGenesis Energy, Inc.\nBy:\nRoss A. Benavides\nRoss A. Benavides, Chief Financial Officer & General Counsel\nDate: December 20, 2007\nGrant E. Sims\nSignature:\nGrant E. Sims\nDate:\nDecember 20, 2007\nJoseph A. Blount, Jr.\nSignature:\nJoseph A. Blount, Jr.\nDate:\nDecember 20, 2007	EX-10.1 2 ex10-1.htm EXHIBIT 10.1 CONFIDENTIAL SEVERANCE AGREEMENT AND GENERAL RELEASE\nCONFIDENTIAL SEVERANCE AGREEMENT AND GENERAL RELEASE\nThis Confidential Severance Agreement and General Release (“Agreement”), is made and entered into by and between the undersigned\nindividual Brad N. Graves (“Graves” or “you”) and Genesis Energy, Inc. (the “Company”), Grant E. Sims (“Sims”), and Joseph A. Blount, Jr.\n(“Blount”) (the signatories to this Agreement will be referred to collectively as the “Parties,” and the Parties other than you are the “Other\nParties”) as follows:\nWHEREAS, Sims, Blount and you were negotiating the definitive terms and conditions pursuant to which (i) the Company and its\naffiliates would, under certain circumstances, compensate a management team led by Sims (and to include you initially) for services rendered to\nthe Company, and (ii) how, and under what circumstances, Sims, Blount, you and any other members of that management team potentially might\nshare such compensation;\nWHEREAS, the Company employed you as Executive Vice President since on or about August 8, 2006;\nWHEREAS, the Company terminated your employment on or about November 26, 2007;\nWHEREAS, the Parties desire to amicably sever the employment and other business relationships that existed between them;\nWHEREAS, in consideration of the services rendered by you and the additional undertakings provided for herein, the Other Parties\nhave agreed to compensate you by having the Company provide the severance compensation described in this Agreement;\nWHEREAS, the Parties have agreed, without any Party admitting liability of any kind, to enter into this Agreement pursuant to which\neach and every claim and/or cause of action asserted or which could have been asserted by you against the Company, Sims, Blount and any of\ntheir affiliates will be forever and finally released; and\nWHEREAS, the Parties have read and understand the terms and provisions of this Agreement, and desire and intend to be bound by the\nterms and provisions of this Agreement applicable to such Party.\nNOW, THEREFORE, in consideration of the covenants and mutual promises and agreements herein contained, and other valuable\nconsideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:\n1.\nRelease and Waiver Agreement. The Parties acknowledge and understand that this Agreement is a mutual release and\nwaiver contract and that this document is legally binding. You and the Other Parties understand that by signing this Agreement, each Party has\nread and understood each provision and is agreeing to all of the provisions set forth in the Agreement applicable to such Party.\n2.\nClaims Covered by Agreement. You and the Other Parties acknowledge and understand that this Agreement applies only\nto claims which accrue or have accrued prior to the date this Agreement is executed by you and the Other Parties.\n3.\nTermination of Employment and Other Arrangements. Your employment with the Company, and any other arrangement\n(including claims of ownership of any equity interest in any entity) you may have had with any Other Party or their affiliates, is terminated\neffective November 26, 2007.\n4.\nSeverance Benefits. In exchange for the promises you make in this Agreement, the Company covenants and agrees to pay\nyou severance compensation in the lump sum amount of Two Million One Hundred Thousand and no/100 Dollars ($2,100,000) (the\n“Severance Compensation”). The Company’s payment of this Severance Compensation is made in connection with the severance of services\nand is subject to applicable federal, state, and local taxes and withholding. The Company and Graves agree to file all tax returns consistent\nwith the agreement that such payment is made in connection with the severance of services. This Severance Compensation is above and\nbeyond any compensation owed to you separate and apart from this Agreement, whether in connection with your employment with the\nCompany, your arrangement with Sims, Blount or any Other Party Releasee (defined below) or otherwise.\nYou will also receive continued paid medical and dental coverage for you and your dependents, at no cost to you, under the Consolidated\nOmnibus Budget Reconciliation Act of 1985 (“COBRA”) for 18 month(s) in the amount of $1,014.00 per month, provided that you make a valid\nCOBRA election. In the event you become eligible for coverage as a participant or beneficiary in an employee welfare benefit plan of another\ncompany at any time during the 18 month period following execution of this Agreement, the Company's obligation to pay monthly COBRA\npremiums for you shall cease. You agree to notify the Company immediately upon becoming eligible to participate (as participant or beneficiary)\nin another company's benefit plan. Employee welfare benefit plan as used herein includes but is not limited to benefit plans providing coverage\nfor medical, dental, and other healthcare related expenses.\nYou acknowledge that this Severance Compensation and continued medical and dental coverage are in addition to any monies or benefits to\nwhich you were already entitled. The Severance Compensation will be paid to you on the first business day following the expiration of the seven\nday (7) revocation period for this Agreement described in Paragraph 7c. below (but only if you do not revoke the Agreement during this period).\nThe continuation of your medical and dental coverage on the terms described above is also contingent on your not revoking this Agreement\nduring the seven (7) day revocation period.\n5.\nRelease And Waiver By Other Parties. In consideration for (i) the conveyance of all rights, title and interests, if any, in and\nto the ownership interests in the Company or any other affiliates of the Other Parties, and any claims for any such interests, by Graves and (ii) the\ncovenants herein, the Other Parties agree to the following:\na.\nThe Company hereby releases, acquits, defends, holds harmless, and agrees to indemnify Graves with respect to any\nclaims, losses, liabilities, obligations and causes of action, known or unknown, by the Company, Genesis Energy, L.P., their parents,\naffiliates and subsidiaries, including but not limited to Denbury Resources Inc. and its affiliates and subsidiaries, their respective\nofficers, directors, partners, managers, employees, stockholders, members, representatives and agents (collectively “the Company\nReleasees”), arising out of, connected with, or relating to: (i) Graves’ employment with the Company; (ii) Graves’ duties as an officer of\nthe Company; and (iii) any fiduciary duty owed by Graves to the Other Parties released herein. The Company represents and warrants\nthat no Company Releasee has assigned to any third party any claim involving Brad Graves or otherwise authorized any third party to\nassert any claim on its behalf against Graves.\nb.\nEach of Sims and Blount hereby release, acquit, defend, hold harmless, and agree to indemnify Graves with respect to\nany claims, losses, liabilities, obligations and causes of action, known or unknown, by such party and his respective affiliates other than\nthe Company Releasees, including his family, estate, heirs, beneficiaries, executors, and administrators (including their successors and\nassigns) and their respective officers, directors, partners, managers, employees, stockholders, members, representatives and agents\n(collectively, the “Sims Releasees”), arising out of, connected with, or relating to any duty owed by Graves to such Sims Releasees.\n6.\nRelease and Waiver By Graves. In consideration for the Severance Compensation described in this Agreement, you agree to\nthe following:\na.\nYou knowingly and voluntarily waive, release, acquit, defend, hold harmless, and agree to indemnify the Company\nReleasees and the Sims Releasees (collectively the “Other Party Releasees”), with respect to any and all claims, losses, liabilities,\nobligations and causes of action, known and unknown, by you and your affiliates, including your family, estate, heirs, beneficiaries,\nexecutors, and administrators (including their successors and assigns) and their respective officers, directors, partners, managers,\nemployees, stockholders, members, representatives and agents, including their successors and assigns (collectively, the “Graves\nReleasees”), arising out of, connected with, or relating to: (i) your employment or any arrangement you may have had with any Other\nParty Releasee; (ii) the Other Party Releasees’ refusal or failure to continue your employment or any arrangement you may have had\nwith any Other Party Releasee; or (iii) the termination of your employment or any arrangement you may have had with any Other Party\nReleasee, including, but not limited to, claims for compensation, commissions, bonuses, equity or member interests (including any\nclaim which might be made under the letter dated August 8, 2006, among the Company, Denbury Resources, Inc. and Sims),\ndistributions, distribution rights, stock options, other wages and benefits, breach of contract, wrongful termination, impairment of\neconomic opportunity, intentional infliction of emotional distress, claims based on personal injury, work-related accident, any breach of\nimplied or express covenant of good faith and fair dealing,\nviolation of public policy, or any other contract, tort or personal injury claim, or claim based on any municipal, state or federal statute,\nregulation or ordinance relating to employment, employment discrimination or retaliation, including Title VII of the Civil Rights Act of\n1964, as amended, 42 U.S.C . § 2000 et seq.; The Civil Rights Act of 1866, as amended, 42 U.S.C . § 1981; The Civil Rights Act of\n1991, as amended, 42 U.S .C . § 1981a; The Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C . § 621 et seq.;\nAmericans With Disabilities Act, as amended, 42 U.S.C . § 12101 et seq.; Fair Labor Standards Act, as amended, 29 U.S.C . § 201, et\nseq.; Equal Pay Act, as amended, 29 U.S.C. §201 et seq.; National Labor Relations Act, as amended, 29 U.S.C . § 151 et seq.; Worker\nAdjustment and Retraining Notification Act, as amended, 29 U.S.C . § 2101 et seq., Employee Retirement Income Security Act of 1974,\nas amended, 29 U.S.C. § 1000 et seq.; Family and Medical Leave Act, as amended, 29 U.S.C . § 2601, et seq.; Texas Labor Code §\n21.001, et seq.; or any other statute, rule, regulation, ordinance, or common civil or other law, or judicial or administrative interpretation\nwhether promulgated by federal, state, local or other jurisdiction or political subdivision.\nb.\nYou understand and agree that by signing this Agreement, you — on behalf of yourself and each Graves Releasee —\nagree to give up any right or entitlement you may have under federal, state or local law against the Other Party Releasees, concerning\nany events related to your employment or termination, or the Company’s failure to continue your employment or any other arrangement\nyou may have with any Other Party Releasee. This Agreement extinguishes any potential employment discrimination claims you may\nhave relating to your employment with the Company and the Company’s termination of your employment existing on the date you sign\nthis Agreement or any other arrangement you may have with any Other Party Releasee. Although this Agreement does not bar you from\nfiling a charge of discrimination with the Equal Employment Opportunity Commission or any state or local civil rights agency, by this\nAgreement you affirmatively, knowingly and voluntarily waive any claim or right to monetary or equitable relief from any such charge\nof discrimination.\nc.\nYou further represent and warrant that you have not assigned to any third party any claim involving the Other Party\nReleasees or authorized any third party to assert on your behalf any claim against the Other Party Releasees. If a third party asserts a\nclaim against the Other Party Releasees on your behalf or includes you as a class member in any class action involving any claim, you\nagree to not accept any benefits or damages relating or arising out of such claim.\n7. Consultation with Attorney, Review Period, and Revocation Period.\na.\nYou are advised, and acknowledge that you have been advised, to consult with an attorney prior to executing this\nAgreement concerning the meaning, import, and legal significance of this Agreement. You acknowledge that you have read this\nAgreement, as signified by your signature hereto, and are voluntarily executing the same for the purposes and consideration herein\nexpressed.\nb.\nYou acknowledge that you have been provided with a period of at least twenty-one (21) calendar days within which to\nconsider, review, and reflect upon the terms of this Agreement. Any discussions about or changes to the Agreement, whether material or\nimmaterial, do not restart the running of the 21-day period.\nc.\nYou have seven (7) calendar days in which you may revoke this Agreement after you sign it. If you choose to revoke\nthe Agreement, please notify the General Counsel of the Company in writing prior to the expiration of seven (7) calendar days after you\nhave signed the Agreement.\nd.\nThis Agreement shall not be effective until the expiration of seven (7) calendar days after you sign it without revoking\nit.\n8.\nGeneral Partner Liability Insurance. You will continue to be insured or otherwise indemnified to the extent you are currently\ninsured under the terms of the Company’s General Liability Insurance Policy including Directors and Officers Coverage with respect to any and\nall claims, losses, liabilities, obligations and causes of action arising out of, connected with, or relating to: (i) your employment; or (ii) the\ntermination of your employment. To the extent tail coverage is necessary to maintain coverage as currently existing and reasonably available (but\nnot at a cost in excess of 125% of current premiums), Company shall acquire same at no expense to Graves.\n9.\nConfidentiality. You shall treat the terms of this Agreement as strictly confidential. You shall not disclose the terms of this\nAgreement to anyone other than your spouse, attorney, accountant or tax advisor, without the Company’s prior written approval, except as may\nbe required by law, or court order. If you receive a request pursuant to applicable law to disclose the existence or terms of this Agreement, you\nshall promptly notify each other Party to enable it to seek a protective order or other appropriate remedy. You agree to notify your spouse,\nattorney, accountant and tax advisor of the confidential nature of this Agreement.\nThe Parties may use this Agreement as evidence in a subsequent proceeding in which a Party alleges a breach of this Agreement. Other\nthan the exceptions set forth herein, the Parties agree they shall not voluntarily introduce this Agreement as evidence in any proceeding or in any\nlawsuit unless required by law or court order. The Parties agree that this confidentiality obligation is contractual and its terms are material to this\nAgreement.\n10. Confidential Information and Trade Secrets. You agree that you shall not, without the prior written consent of the Company,\ndirectly or indirectly, disclose, reveal or communicate, or cause or allow to be disclosed, revealed or communicated to any unauthorized person\nany of any Company Releasee’s confidential matters, proprietary information or trade secrets, including, without limitation, studies, plans,\nfinancial data, information regarding projects or development prospects, acquisition candidates, strategies or any other proprietary business\ninformation or plans you had knowledge of prior to the date of this Agreement, including the projects set forth on Exhibit A. You further agree\nnot to utilize any such confidential or proprietary information or trade secrets of Company for your benefit or the\nbenefit of others, including, without limitation, others in direct or indirect competition with the Other Parties and their affiliates. The obligations\nset forth in this Paragraph 10 shall be in addition to any other confidentiality obligations that you may have to any of the Other Party Releasees.\nThe Parties expressly acknowledge that Graves was hired by the Company due to his existing general industry knowledge and expertise. This\ncovenant is not intended to restrict Graves’ ability to use or leverage that knowledge or experience, only to prevent Graves from using\nconfidential information of the Other Parties and their affiliates.\nYou further acknowledge that the injury the Other Party Releasees will suffer in the event of your breach of any covenant or agreement\nset forth in Paragraphs 9, 10, 11 and 13 cannot be compensated by monetary damages alone.\n11.\nCompany Property. You agree to return all Company property, equipment, documents and other tangible things, including\nkeys, pagers, corporate credit cards, and laptop or other computers, in accordance with the Company’s policies and rules, before the date on\nwhich this Agreement becomes effective. Company agrees to provide in writing an itemized list of any items it contends are Company property.\nYou agree to not destroy, alter, erase, or otherwise change any software, data, or other information belonging to the Company. You further agree\nthe Company may withhold from your Severance Compensation monies equal to the value of Company property, equipment and tangible things\nyou fail to return provided that no sums may be withheld if Company has not provided such itemized listing to Graves. In addition, you agree\nthat the Company may withhold from your Severance Compensation any monies you owe the Company, including but not limited to, charges to\nthe corporate credit card for which you did not submit a valid expense report, unused travel advances, salary draws, etc. Prior to withholding\nsums for such charges, Company must tender a written list of rejected expenses or charges, and provided Graves a reasonable opportunity to cure\nsuch defect.\n12.\nCooperation. For a reasonable period after your termination, you agree to make yourself available and to reasonably cooperate\nwith each other Party in any future claims or lawsuits involving the Other Party Releasees where you have knowledge of the underlying facts or\nto affect the completion of your outstanding employment duties or the transfer of such duties. Each such Requesting Party agrees to reimburse\nyou for time you spend at such Party’s request at a rate per hour equivalent to what you earned with the Company immediately before your notice\nof termination. Any obligations performed to affect the completion or transfer of your duties shall be performed as an independent contractor, not\nas an employee. You will not be reimbursed if you are a named party in any claim or lawsuit for activities associated with your defense except to\nthe extent insurance or indemnity is available to other executives. All time spent cooperating with Company on its defense shall be reimbursed.\nIn addition, you agree not to voluntarily aid, assist or cooperate with any claimant or plaintiff or their attorneys or agents in any claim or lawsuit\ncommenced against the Other Party Releasees.\nNothing in this Agreement should be construed to prevent you from initiating or participating in any state of federal agency\nadministrative proceeding or from testifying at an administrative hearing, deposition, or in court in response to a lawful subpoena .\n13.\nNon-Solicitation. For one (1) year following the date of this Agreement, you agree not to directly or indirectly, on your own\nbehalf or on behalf of another person or entity, hire or solicit for hire any employees of the Company or any of its affiliates or in any manner\nattempt to influence or induce any employee of the Company or any of its affiliates to leave their employment.\n14.\nNo Authority. As of your termination date, you shall have no authority to obligate the Company in any manner, and shall not\nenter into any contracts on the Company’s behalf. You shall not make any representation, warranty, or other statement, or take any action, that\nmay be construed by a third party to indicate that you have authority to obligate the Company or to enter into a contract on the Company’s\nbehalf.\n15.\nPublic Statements. The Parties mutually agree not to make any untrue, misleading, or defamatory statements concerning any\nof Other Parties.\n16.\nNon-Admission of Wrongdoing. This Agreement shall not in any way be construed as an admission of liability or as an\nadmission that any of the Other Party Releasees have acted wrongfully with respect to you. Each of the Other Party Releasees specifically denies\nand disclaims any such liability or wrongful acts.\n17.\nReference Letters. If a prospective employer contacts the Company to obtain your employment information or a\nrecommendation, the Company will provide only your employment dates and job title, unless you authorize the Company in writing to provide\nadditional information.\n18.\nKnowing and Voluntary Agreement. You acknowledge and agree that after you received a copy of this Agreement: (i) you\nhave had an opportunity to review this Agreement and to consult an attorney before signing it; and (ii) you enter into the Agreement knowingly,\nvoluntarily and after any consultations with your attorney or other advisor as you deemed appropriate.\n19.\nChoice of Law and Venue. You and the Company agree that this Agreement shall be performed in Harris County, Texas and\nthat the laws of the State of Texas shall govern the enforceability, interpretation and legal effect of this Agreement. The Parties agree to submit to\nthe jurisdiction of the federal and state courts sitting in Harris County, Texas, for all purposes relating to the validity, interpretation, or\nenforcement of this Agreement, including, without limitation, any application for injunctive relief.\n20.\nSeverability. The Company and you agree that, if any term of this Agreement shall be determined by a court to be void or\nunenforceable, the remaining provisions will remain effective and legally binding, and the void or unenforceable term shall be deemed not to be a\npart of this Agreement.\n21.\nAmendments. Any modification of this Agreement or additional obligation assumed by any Party in connection with this\nAgreement shall be binding only if evidenced in\nwriting signed by each Party or an authorized representative of each Party. Additionally, this Agreement cannot be changed or terminated orally,\nbut may be changed only through written addendum executed by all Parties.\n22.\nRemedies. Any material breach by a Party of the terms and conditions contained in this Agreement shall give the Other Parties\nthe right to discontinue the performance of any unperformed duties and obligations under this Agreement to the extent permitted by applicable\nlaw. If a Party breaches any term of the Agreement, any delay by another Party to enforce the Agreement shall not be deemed a waiver,\nacceptance, or acquiescence. No waiver shall bind a Party unless supported by consideration, executed in writing, and delivered to the first Party\nby an authorized representative.\n23.\nEffective Period. This Agreement is null and void if: (i) you fail to execute and return it within 21 calendar days of receipt; or\n(ii) you sign it within 21 calendar days, but revoke your execution within seven (7) calendar days after signing it.\n24.\nEntire Agreement. This Agreement constitutes our entire agreement and supersedes any prior agreements or understanding\nbetween you and the Other Party Releasees, except any confidentiality obligations referred to in Paragraph 10. The Parties acknowledge that they\neach enter into this Agreement without reliance on any written or oral promise or representation, other than those contained in this Agreement.\nIN WITNESS WHEREOF, this Confidential Severance Agreement and General Release has been executed by each of the listed parties\nas of the later date below.\nBrad N. Graves\nSignature: _______Brad Graves______________\nDate: _____December 20, 2007______________\nGenesis Energy, Inc.\nBy: ___Ross A. Benavides__________________\nRoss A. Benavides, Chief Financial Officer & General Counsel\nDate: ____December 20, 2007_______________\nGrant E. Sims\nSignature: ____Grant E. Sims_________________\nDate: ________December 20, 2007____________\nJoseph A. Blount, Jr.\nSignature: ________Joseph A. Blount, Jr.\nDate: ___________December 20, 2007_________
+66520c735c79ca61b3e399c3ce4ea290.pdf	effective_date jurisdiction party term	EX-99 .2 5 confidentiality.htm CONFIDENTIALITY AND NDA\nExhibit 99.2\nMay 6, 2009\nRe: CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nMerge Healthcare Incorporated (“Recipient”) has requested certain information from etrials Worldwide, Inc. (the “Company”) in\nconnection with a possible transaction involving the Company (a “Possible Transaction”). In particular, Recipient has requested financial and other\ninformation concerning the Company (the “Evaluation Material”). The “Evaluation Material,” whether furnished to Recipient before or after the\ndate of this Confidentiality Agreement, includes this Confidentiality Agreement and any negotiations between the Company and the Recipient\nregarding the Possible Transaction together with all analyses, compilations, studies or other documents or records prepared by the Company, the\nRecipient or their Representatives (as hereafter defined) which contain or otherwise reflect or are generated from such information, as well as all\ncopies and other reproductions thereof, whether oral, in writing or stored or maintained in or by electronic, magnetic or other means, media or\ndevices, but does not include information which (i) was or becomes generally available to the public other than as a result of a disclosure by the\nRecipient or its directors, officers, employees, shareholders, agents or advisors (all of the foregoing collectively referred to as “Representatives”), or\nthe respective Representatives of the Recipient’s agents or advisors, (ii) was or becomes available to Recipient on a non-confidential basis from a\nsource other than the Company or its Representatives, provided that such source is not bound by a confidentiality agreement with the Company or\notherwise prohibited from transmitting the information to Recipient or (iii) was within Recipient’s possession prior to its being furnished by or on\nbehalf of the Company, provided that the source of such information was not bound by a confidentiality agreement with the Company in respect\nthereof or otherwise prohibited from transmitting the information to the Recipient.\nIn consideration of Recipient being furnished with any Evaluation Material, Recipient agrees as follows:\n1.\nRecipient acknowledges the competitive value and confidential nature of the Evaluation Material and the damage that\ncould result to the Company if information contained therein is disclosed to any third party.\n2.\nThe Evaluation Material will be used solely for the purpose of evaluating a Possible Transaction. Recipient and its\nRepresentatives will keep the Evaluation Material confidential and will not disclose any of such Evaluation Material to any third party without the\nprior written consent of the Company; provided, however, that, subject to Paragraph 5 hereof, any of such Evaluation Material may be disclosed (a)\nto the extent required by applicable law or legal process, or (b) to Recipient’s Representatives who need to know the information contained in the\nEvaluation Material for the purpose of evaluating a Possible Transaction and who are informed of the confidential and non-public nature of the\nEvaluation Material and are directed and agree to treat such Evaluation Material confidentially. In any event, Recipient is responsible for any\nimproper use by its Representatives of the Evaluation Material.\n3.\nThe Company makes no representations or warranties as to the accuracy or completeness of any Evaluation Material,\nand has no liability to Recipient resulting from the use of the Evaluation Material supplied by the Company or any of its Representatives except as\nmay be provided in a definitive agreement in connection with a Possible Transaction.\n4.\nUpon the written request of the Company, all Evaluation Materials (and all copies, extracts or other reproductions in\nwhole or in part thereof) of the Company, whether in writing or stored or maintained in or by electronic, magnetic or other means, media or devices,\nmust be returned or, at the election of Recipient, destroyed by an authorized officer and not retained in any form or for any reason.\n5.\nNotwithstanding anything to the contrary set forth herein, in the event that Recipient or its Representatives are\nrequested or become legally compelled (by oral questions, interrogatories, request for information or documents, subpoena, civil investigative\ndemand or similar process) to disclose any of the Evaluation Material or take any other action prohibited hereby, the Recipient will promptly notify\nthe Company in writing so that the Company may seek a protective order or other appropriate remedy and/or so that it may waive compliance with\nthe provisions of this Confidentiality Agreement. In the event that such protective order or other remedy is not sought or obtained or that the\ncompliance with the provisions of this Confidentiality Agreement is waived, only that portion of the Evaluation Material requested may be\nfurnished or only such action which is legally required may be taken, and Recipient shall exercise its best efforts to obtain assurance that\nconfidential treatment will be accorded such Evaluation Material.\n6.\nBy accepting the Evaluation Material, Recipient acknowledges and agrees that certain information contained in this\nagreement and the Evaluation Material might constitute material, non-public information. As a result, Recipient agrees that it may not purchase,\nsell or otherwise trade in the Company’s securities or any derivatives thereof until such time as Recipient, based on the advice of counsel,\ndetermines that the Evaluation material does not constitute material, non-public information.\n7.\nThe Recipient may not propose to any person or entity other than the Company any transaction between the Recipient\nand the Company and/or its security holders involving the Company’s securities or security holders unless the Company requests in writing that\nRecipient makes such a proposal. Recipient may not acquire, or assist, advise or encourage any other persons in acquiring, directly or indirectly, (1)\ncontrol of the Company, including but not limited to acquiring control by nominating person(s) to serve on the Company’s board of directors, (2)\nmore than 2% of any outstanding class of securities of the Company or any voting or economic interest therein, or (3) substantially all of the\nCompany’s business or assets, in each case, for a period of two years from the date of this Confidentiality Agreement unless the Company consents\nin advance in writing to such acquisition. The Company is entitled to equitable relief, including injunction, in the event of any breach of the\nprovisions of this paragraph.\n8.\nThis agreement is governed by and must be construed in accordance with the laws of the State of Delaware applicable\nto contracts made and to be performed entirely within such State without giving effect to the principles of conflict of laws thereof. The courts of the\nState of Delaware and the United States District Courts located in Delaware have jurisdiction with respect to any dispute or controversy arising\nunder or in connection with this agreement. In view of the confidential nature of the Evaluation Material and the serious and irreparable damage\nthat will result if any of the Evaluation Material is disclosed to or used by any person or entity in violation of this agreement, the Company is\nentitled to equitable relief to enjoin any breach or threatened breach of this agreement. Recipient’s obligations hereunder are in addition to, and not\nexclusive of, any and all of Recipient’s other obligations and duties to the Company, whether express or implied, in fact or in law. Any failure by\nthe Company to enforce Recipient’s strict performance of any provision of this agreement does not constitute a waiver of the Company’s right to\nsubsequently enforce that or any other provision.\n9.\nThis agreement may be executed via facsimile transmission and may be executed in separate counterparts, each of\nwhich is an original and which together constitutes a single instrument.\nPlease acknowledge your agreement to the foregoing by countersigning this letter in the place provided below and returning it to the attention of the\nundersigned.\nVery truly yours,\nETRIALS WORLDWIDE, INC.\nBy: /s/ M. Denis Connaghan\nPresident and Chief Executive Officer\nAGREED TO AND ACCEPTED:\nMERGE HEALTHCARE INCORPORATED\nBy: /s/ Ann Mayberry-French\nName: Ann Mayberry-French\nTitle: V.P., General Counsel & Secretary\nDate:\nMay 6, 2009	EX-99.2 5 confidentiality.htm CONFIDENTIALITY AND NDA\nExhibit 99.2\nMay 6, 2009\nRe: CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nMerge Healthcare Incorporated (“Recipient”) has requested certain information from etrials Worldwide, Inc. (the “Company”) in\nconnection with a possible transaction involving the Company (a “Possible Transaction”). In particular, Recipient has requested financial and other\ninformation concerning the Company (the “Evaluation Material”). The “Evaluation Material,” whether furnished to Recipient before or after the\ndate of this Confidentiality Agreement, includes this Confidentiality Agreement and any negotiations between the Company and the Recipient\nregarding the Possible Transaction together with all analyses, compilations, studies or other documents or records prepared by the Company, the\nRecipient or their Representatives (as hereafter defined) which contain or otherwise reflect or are generated from such information, as well as all\ncopies and other reproductions thereof, whether oral, in writing or stored or maintained in or by electronic, magnetic or other means, media or\ndevices, but does not include information which (i) was or becomes generally available to the public other than as a result of a disclosure by the\nRecipient or its directors, officers, employees, shareholders, agents or advisors (all of the foregoing collectively referred to as “Representatives™), or\nthe respective Representatives of the Recipient’s agents or advisors, (ii) was or becomes available to Recipient on a non-confidential basis from a\nsource other than the Company or its Representatives, provided that such source is not bound by a confidentiality agreement with the Company or\notherwise prohibited from transmitting the information to Recipient or (iii) was within Recipient’s possession prior to its being furnished by or on\nbehalf of the Company, provided that the source of such information was not bound by a confidentiality agreement with the Company in respect\nthereof or otherwise prohibited from transmitting the information to the Recipient.\nIn consideration of Recipient being furnished with any Evaluation Material, Recipient agrees as follows:\n1. Recipient acknowledges the competitive value and confidential nature of the Evaluation Material and the damage that\ncould result to the Company if information contained therein is disclosed to any third party.\n2. The Evaluation Material will be used solely for the purpose of evaluating a Possible Transaction. Recipient and its\nRepresentatives will keep the Evaluation Material confidential and will not disclose any of such Evaluation Material to any third party without the\nprior written consent of the Company; provided, however, that, subject to Paragraph 5 hereof, any of such Evaluation Material may be disclosed (a)\nto the extent required by applicable law or legal process, or (b) to Recipient’s Representatives who need to know the information contained in the\nEvaluation Material for the purpose of evaluating a Possible Transaction and who are informed of the confidential and non-public nature of the\nEvaluation Material and are directed and agree to treat such Evaluation Material confidentially. In any event, Recipient is responsible for any\nimproper use by its Representatives of the Evaluation Material.\n3. The Company makes no representations or warranties as to the accuracy or completeness of any Evaluation Material,\nand has no liability to Recipient resulting from the use of the Evaluation Material supplied by the Company or any of its Representatives except as\nmay be provided in a definitive agreement in connection with a Possible Transaction.\n4. Upon the written request of the Company, all Evaluation Materials (and all copies, extracts or other reproductions in\nwhole or in part thereof) of the Company, whether in writing or stored or maintained in or by electronic, magnetic or other means, media or devices,\nmust be returned or, at the election of Recipient, destroyed by an authorized officer and not retained in any form or for any reason.\n5. Notwithstanding anything to the contrary set forth herein, in the event that Recipient or its Representatives are\nrequested or become legally compelled (by oral questions, interrogatories, request for information or documents, subpoena, civil investigative\ndemand or similar process) to disclose any of the Evaluation Material or take any other action prohibited hereby, the Recipient will promptly notify\nthe Company in writing so that the Company may seek a protective order or other appropriate remedy and/or so that it may waive compliance with\nthe provisions of this Confidentiality Agreement. In the event that such protective order or other remedy is not sought or obtained or that the\ncompliance with the provisions of this Confidentiality Agreement is waived, only that portion of the Evaluation Material requested may be\nfurnished or only such action which is legally required may be taken, and Recipient shall exercise its best efforts to obtain assurance that\nconfidential treatment will be accorded such Evaluation Material.\n6. By accepting the Evaluation Material, Recipient acknowledges and agrees that certain information contained in this\nagreement and the Evaluation Material might constitute material, non-public information. As a result, Recipient agrees that it may not purchase,\nsell or otherwise trade in the Company’s securities or any derivatives thereof until such time as Recipient, based on the advice of counsel,\ndetermines that the Evaluation material does not constitute material, non-public information.\n7. The Recipient may not propose to any person or entity other than the Company any transaction between the Recipient\nand the Company and/or its security holders involving the Company’s securities or security holders unless the Company requests in writing that\nRecipient makes such a proposal. Recipient may not acquire, or assist, advise or encourage any other persons in acquiring, directly or indirectly, (1)\ncontrol of the Company, including but not limited to acquiring control by nominating person(s) to serve on the Company’s board of directors, (2)\nmore than 2% of any outstanding class of securities of the Company or any voting or economic interest therein, or (3) substantially all of the\nCompany’s business or assets, in each case, for a period of two years from the date of this Confidentiality Agreement unless the Company consents\nin advance in writing to such acquisition. The Company is entitled to equitable relief, including injunction, in the event of any breach of the\nprovisions of this paragraph.\n8. This agreement is governed by and must be construed in accordance with the laws of the State of Delaware applicable\nto contracts made and to be performed entirely within such State without giving effect to the principles of conflict of laws thereof. The courts of the\nState of Delaware and the United States District Courts located in Delaware have jurisdiction with respect to any dispute or controversy arising\nunder or in connection with this agreement. In view of the confidential nature of the Evaluation Material and the serious and irreparable damage\nthat will result if any of the Evaluation Material is disclosed to or used by any person or entity in violation of this agreement, the Company is\nentitled to equitable relief to enjoin any breach or threatened breach of this agreement. Recipient’s obligations hereunder are in addition to, and not\nexclusive of, any and all of Recipient’s other obligations and duties to the Company, whether express or implied, in fact or in law. Any failure by\nthe Company to enforce Recipient’s strict performance of any provision of this agreement does not constitute a waiver of the Company’s right to\nsubsequently enforce that or any other provision.\n9. This agreement may be executed via facsimile transmission and may be executed in separate counterparts, each of\nwhich is an original and which together constitutes a single instrument.\nPlease acknowledge your agreement to the foregoing by countersigning this letter in the place provided below and returning it to the attention of the\nundersigned.\nVery truly yours,\nETRIALS WORLDWIDE, INC.\nBy:_/s/ M. Denis Connaghan\nPresident and Chief Executive Officer\nAGREED TO AND ACCEPTED:\nMERGE HEALTHCARE INCORPORATED\nBy:_/s/ Ann Mayberry-French\nName: Ann Mayberry-French\nTitle: V.P., General Counsel & Secretary\nDate: May 6, 2009	EX-99.2 5 confidentiality.htm CONFIDENTIALITY AND NDA\nExhibit 99.2\nMay 6, 2009\nRe: CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nMerge Healthcare Incorporated ("Recipient") has requested certain information from etrials Worldwide, Inc. (the "Company") in\nconnection with a possible transaction involving the Company (a "Possible Transaction"). In particular, Recipient has requested financial and other\ninformation concerning the Company (the "Evaluation Material"). The "Evaluation Material," whether furnished to Recipient before or after the\ndate\nof\nthis\nConfidentiality Agreement, includes this Confidentiality Agreement and any negotiations between the Company and the Recipient\nregarding the Possible Transaction together with all analyses, compilations, studies or other documents or records prepared by the Company, the\nRecipient or their Representatives (as hereafter defined) which contain or otherwise reflect or are generated from such information, as well as\nall\ncopies\nand\nother reproductions thereof, whether oral, in writing or stored or maintained in or by electronic, magnetic or other means, media\nor\ndevices, but does not include information which (i) was or becomes generally available to the public other than as a result of a disclosure by the\nRecipient or its directors, officers, employees, shareholders, agents or advisors (all of the foregoing collectively referred to as "Representatives"), or\nthe\nrespective\nRepresentatives of the Recipient's agents or advisors, (ii) was or becomes available to Recipient on a non-confidential basis from\na\nsource other than the Company or its Representatives, provided that such source is not bound by a confidentiality agreement with the Company or\notherwise prohibited from transmitting the information to Recipient or (iii) was within Recipient's possession prior to its being furnished by or on\nbehalf of the Company, provided that the source of such information was not bound by a confidentiality agreement with the Company in respect\nthereof or otherwise prohibited from transmitting the information to the Recipient.\nIn consideration of Recipient being furnished with any Evaluation Material, Recipient agrees as follows:\n1.\nRecipient acknowledges the competitive value and confidential nature of the Evaluation Material and the damage that\ncould result to the Company if information contained therein is disclosed to any third party.\n2.\nThe Evaluation Material will be used solely for the purpose of evaluating a Possible Transaction. Recipient and its\nRepresentatives will keep the Evaluation Material confidential and will not disclose any of such Evaluation Material to any third party without the\nprior written consent of the Company; provided, however, that, subject to Paragraph 5 hereof, any of such Evaluation Material may be disclosed (a)\nto the extent required by applicable law or legal process, or (b) to Recipient's Representatives who need to know the information contained in the\nEvaluation Material for the purpose of evaluating a Possible Transaction and who are informed of the confidential and non-public nature of the\nEvaluation Material and are directed and agree to treat such Evaluation Material confidentially. In any event, Recipient is responsible for any\nimproper use by its Representatives of the Evaluation Material.\n3.\nThe Company makes no representations or warranties as to the accuracy or completeness of any Evaluation Material,\nand has no liability to Recipient resulting from the use of the Evaluation Material supplied by the Company or any of its Representatives except as\nmay be provided in a definitive agreement in connection with a Possible Transaction.\n4.\nUpon the written request of the Company, all Evaluation Materials (and all copies, extracts or other reproductions in\nwhole or in part thereof) of the Company, whether in writing or stored or maintained in or by electronic, magnetic or other means, media or devices,\nmust be returned or, at the election of Recipient, destroyed by an authorized officer and not retained in any form or for any reason.\n5.\nNotwithstanding anything to the contrary set forth herein, in the event that Recipient or its Representatives are\nrequested or become legally compelled (by oral questions, interrogatories, request for information or documents, subpoena, civil investigative\ndemand\nor\nsimilar\nprocess)\nto\ndisclose\nany\nof\nthe\nEvaluation\nMaterial\nor\ntake\nany\nother\naction\nprohibited\nhereby,\nthe\nRecipient\nwill\npromptly\nnotify\nthe Company in writing so that the Company may seek a protective order or other appropriate remedy and/or so that it may waive compliance with\nthe provisions of this Confidentiality Agreement. In the event that such protective order or other remedy is not sought or obtained or that the\ncompliance with the provisions of this Confidentiality Agreement is waived, only that portion of the Evaluation Material requested may be\nfurnished or only such action which is legally required may be taken, and Recipient shall exercise its best efforts to obtain assurance that\nconfidential treatment will be accorded such Evaluation Material.\n6.\nBy accepting the Evaluation Material, Recipient acknowledges and agrees that certain information contained in this\nagreement and the Evaluation Material might constitute material, non-public information. As a result, Recipient agrees that it may not purchase,\nsell or otherwise trade in the Company's securities or any derivatives thereof until such time as Recipient, based on the advice of counsel,\ndetermines that the Evaluation material does not constitute material, non-public information.\n7.\nThe Recipient may not propose to any person or entity other than the Company any transaction between the Recipient\nand the Company and/or its security holders involving the Company's securities or security holders unless the Company requests in writing that\nRecipient makes such a proposal. Recipient may not acquire, or assist, advise or encourage any other persons in acquiring, directly or indirectly, (1)\ncontrol of the Company, including but not limited to acquiring control by nominating person(s) to serve on the Company's board of directors, (2)\nmore than 2% of any outstanding class of securities of the Company or any voting or economic interest therein, or (3) substantially all of the\nCompany's\nbusiness\nor\nassets,\nin\neach\ncase,\nfor\na\nperiod\nof\ntwo\nyears\nfrom\nthe\ndate\nof\nthis\nConfidentiality\nAgreement\nunless\nthe\nCompany\nconsents\nin advance in writing to such acquisition. The Company is entitled to equitable relief, including injunction, in the event of any breach of the\nprovisions of this paragraph.\n8.\nThis agreement is governed by and must be construed in accordance with the laws of the State of Delaware applicable\nto contracts made and to be performed entirely within such State without giving effect to the principles of conflict of laws thereof. The courts of the\nState of Delaware and the United States District Courts located in Delaware have jurisdiction with respect to any dispute or controversy arising\nunder or in connection with this agreement. In view of the confidential nature of the Evaluation Material and the serious and irreparable damage\nthat will result if any of the Evaluation Material is disclosed to or used by any person or entity in violation of this agreement, the Company is\nentitled to equitable relief to enjoin any breach or threatened breach of this agreement. Recipient's obligations hereunder are in addition to, and not\nexclusive of, any and all of Recipient's other obligations and duties to the Company, whether express or implied, in fact or in law. Any failure by\nthe Company to enforce Recipient's strict performance of any provision of this agreement does not constitute a waiver of the Company's right\nto\nsubsequently enforce that or any other provision.\n9.\nThis agreement may be executed via facsimile transmission and may be executed in separate counterparts, each of\nwhich is an original and which together constitutes a single instrument.\nPlease acknowledge your agreement to the foregoing by countersigning this letter in the place provided below and returning it to the attention of the\nundersigned.\nVery truly yours,\nETRIALS WORLDWIDE, INC.\nBy: /s/ M. Denis Connaghan\nPresident and Chief Executive Officer\nAGREED TO AND ACCEPTED:\nMERGE HEALTHCARE INCORPORATED\nBy: /s/ Ann Mayberry-French\nName: Ann Mayberry-French\nTitle: V.P., General Counsel & Secretary\nDate:\nMay 6, 2009	EX-99 .2 5 confidentiality.htm CONFIDENTIALITY AND NDA\nExhibit 99.2\nMay 6, 2009\nRe: CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nMerge Healthcare Incorporated (“Recipient”) has requested certain information from etrials Worldwide, Inc. (the “Company”) in\nconnection with a possible transaction involving the Company (a “Possible Transaction”). In particular, Recipient has requested financial and other\ninformation concerning the Company (the “Evaluation Material”). The “Evaluation Material,” whether furnished to Recipient before or after the\ndate of this Confidentiality Agreement, includes this Confidentiality Agreement and any negotiations between the Company and the Recipient\nregarding the Possible Transaction together with all analyses, compilations, studies or other documents or records prepared by the Company, the\nRecipient or their Representatives (as hereafter defined) which contain or otherwise reflect or are generated from such information, as well as all\ncopies and other reproductions thereof, whether oral, in writing or stored or maintained in or by electronic, magnetic or other means, media or\ndevices, but does not include information which (i) was or becomes generally available to the public other than as a result of a disclosure by the\nRecipient or its directors, officers, employees, shareholders, agents or advisors (all of the foregoing collectively referred to as “Representatives”), or\nthe respective Representatives of the Recipient’s agents or advisors, (ii) was or becomes available to Recipient on a non-confidential basis from a\nsource other than the Company or its Representatives, provided that such source is not bound by a confidentiality agreement with the Company or\notherwise prohibited from transmitting the information to Recipient or (iii) was within Recipient’s possession prior to its being furnished by or on\nbehalf of the Company, provided that the source of such information was not bound by a confidentiality agreement with the Company in respect\nthereof or otherwise prohibited from transmitting the information to the Recipient.\nIn consideration of Recipient being furnished with any Evaluation Material, Recipient agrees as follows:\n1.\nRecipient acknowledges the competitive value and confidential nature of the Evaluation Material and the damage that\ncould result to the Company if information contained therein is disclosed to any third party.\n2.\nThe Evaluation Material will be used solely for the purpose of evaluating a Possible Transaction. Recipient and its\nRepresentatives will keep the Evaluation Material confidential and will not disclose any of such Evaluation Material to any third party without the\nprior written consent of the Company; provided, however, that, subject to Paragraph 5 hereof, any of such Evaluation Material may be disclosed (a)\nto the extent required by applicable law or legal process, or (b) to Recipient’s Representatives who need to know the information contained in the\nEvaluation Material for the purpose of evaluating a Possible Transaction and who are informed of the confidential and non-public nature of the\nEvaluation Material and are directed and agree to treat such Evaluation Material confidentially. In any event, Recipient is responsible for any\nimproper use by its Representatives of the Evaluation Material.\n3.\nThe Company makes no representations or warranties as to the accuracy or completeness of any Evaluation Material,\nand has no liability to Recipient resulting from the use of the Evaluation Material supplied by the Company or any of its Representatives except as\nmay be provided in a definitive agreement in connection with a Possible Transaction.\n4.\nUpon the written request of the Company, all Evaluation Materials (and all copies, extracts or other reproductions in\nwhole or in part thereof) of the Company, whether in writing or stored or maintained in or by electronic, magnetic or other means, media or devices,\nmust be returned or, at the election of Recipient, destroyed by an authorized officer and not retained in any form or for any reason.\n5.\nNotwithstanding anything to the contrary set forth herein, in the event that Recipient or its Representatives are\nrequested or become legally compelled (by oral questions, interrogatories, request for information or documents, subpoena, civil investigative\ndemand or similar process) to disclose any of the Evaluation Material or take any other action prohibited hereby, the Recipient will promptly notify\nthe Company in writing so that the Company may seek a protective order or other appropriate remedy and/or so that it may waive compliance with\nthe provisions of this Confidentiality Agreement. In the event that such protective order or other remedy is not sought or obtained or that the\ncompliance with the provisions of this Confidentiality Agreement is waived, only that portion of the Evaluation Material requested may be\nfurnished or only such action which is legally required may be taken, and Recipient shall exercise its best efforts to obtain assurance that\nconfidential treatment will be accorded such Evaluation Material.\n6.\nBy accepting the Evaluation Material, Recipient acknowledges and agrees that certain information contained in this\nagreement and the Evaluation Material might constitute material, non-public information. As a result, Recipient agrees that it may not purchase,\nsell or otherwise trade in the Company’s securities or any derivatives thereof until such time as Recipient, based on the advice of counsel,\ndetermines that the Evaluation material does not constitute material, non-public information.\n7.\nThe Recipient may not propose to any person or entity other than the Company any transaction between the Recipient\nand the Company and/or its security holders involving the Company’s securities or security holders unless the Company requests in writing that\nRecipient makes such a proposal. Recipient may not acquire, or assist, advise or encourage any other persons in acquiring, directly or indirectly, (1)\ncontrol of the Company, including but not limited to acquiring control by nominating person(s) to serve on the Company’s board of directors, (2)\nmore than 2% of any outstanding class of securities of the Company or any voting or economic interest therein, or (3) substantially all of the\nCompany’s business or assets, in each case, for a period of two years from the date of this Confidentiality Agreement unless the Company consents\nin advance in writing to such acquisition. The Company is entitled to equitable relief, including injunction, in the event of any breach of the\nprovisions of this paragraph.\n8.\nThis agreement is governed by and must be construed in accordance with the laws of the State of Delaware applicable\nto contracts made and to be performed entirely within such State without giving effect to the principles of conflict of laws thereof. The courts of the\nState of Delaware and the United States District Courts located in Delaware have jurisdiction with respect to any dispute or controversy arising\nunder or in connection with this agreement. In view of the confidential nature of the Evaluation Material and the serious and irreparable damage\nthat will result if any of the Evaluation Material is disclosed to or used by any person or entity in violation of this agreement, the Company is\nentitled to equitable relief to enjoin any breach or threatened breach of this agreement. Recipient’s obligations hereunder are in addition to, and not\nexclusive of, any and all of Recipient’s other obligations and duties to the Company, whether express or implied, in fact or in law. Any failure by\nthe Company to enforce Recipient’s strict performance of any provision of this agreement does not constitute a waiver of the Company’s right to\nsubsequently enforce that or any other provision.\n9.\nThis agreement may be executed via facsimile transmission and may be executed in separate counterparts, each of\nwhich is an original and which together constitutes a single instrument.\nPlease acknowledge your agreement to the foregoing by countersigning this letter in the place provided below and returning it to the attention of the\nundersigned.\nVery truly yours,\nETRIALS WORLDWIDE, INC.\nBy: /s/ M. Denis Connaghan\nPresident and Chief Executive Officer\nAGREED TO AND ACCEPTED:\nMERGE HEALTHCARE INCORPORATED\nBy: /s/ Ann Mayberry-French\nName: Ann Mayberry-French\nTitle: V.P., General Counsel & Secretary\nDate:\nMay 6, 2009
+67801b8a31a2ed7664b85235352eb346.pdf	effective_date jurisdiction party	Exhibit 10.52\nRESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT\nIn exchange for the mutual promises and consideration set forth below, this Restrictive Covenant and Confidentiality\nAgreement (“Agreement”) is entered into by and between the Federal Home Loan Mortgage Corporation (“Freddie Mac”\nor “Company”) and Peter Federico (“Executive”), effective as of March 1, 2006.\nI. Definitions\nThe following terms shall have the meanings indicated when used in this Agreement.\nA. Competitor: The following entities, and their respective parents, successors, subsidiaries, and affiliates are\ncompetitors: (i) Fannie Mae (ii) all Federal Home Loan Banks (including the Office of Finance); and (iii) such other\nentities to which Executive and the Company may agree in writing from time-to-time.\nB. Confidential Information: Information or materials in written, oral, magnetic, digital, computer, photographic, optical,\nelectronic, or other form, whether now existing or developed or created during the period of Executive’s employment\nwith Freddie Mac, that constitutes trade secrets and/or proprietary or confidential information. This information includes,\nbut is not limited to: (i) all information marked Proprietary or Confidential; (ii) information concerning the components,\ncapabilities, and attributes of Freddie Mac’s business plans, methods, and strategies; (iii) information relating to tactics,\nplans, or strategies concerning shareholders, investors, pricing, investment, marketing, sales, trading, funding, hedging,\nmodeling, sales and risk management; (iv) financial or tax information and analyses, including but not limited to,\ninformation concerning Freddie Mac’s capital structure and tax or financial planning; (v) confidential information about\nFreddie Mac’s customers, borrowers, employees, or others; (vi) pricing and quoting information, policies, procedures,\nand practices; (vii) confidential customer lists; (viii) proprietary algorithms; (ix) confidential contract terms;\n(x) confidential information concerning Freddie Mac’s policies, procedures, and practices or the way in which Freddie\nMac does business; (xi) proprietary or confidential data bases, including their structure and content; (xii) proprietary\nFreddie Mac business software, including its design, specifications and documentation; (xiii) information about Freddie\nMac products, programs, and services which has not yet been made public; (xiv) confidential information about Freddie\nMac’s dealings with third parties, including dealers, customers, vendors, and regulators; and/or (xv) confidential\ninformation belonging to third parties to which Executive received access in connection with Executive’s employment\nwith Freddie Mac. Confidential Information does not include general skills, experience, or knowledge acquired in\nconnection with Executive’s employment with Freddie Mac that otherwise are generally known to the public or within\nthe industry or trade in which Freddie Mac operates.\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage2of6\nII. Non-Competition\nExecutive recognizes that as a result of Executive’s employment with Freddie Mac, Executive has access to and\nknowledge of critically sensitive Confidential Information, the improper disclosure or use of which would result in grave\ncompetitive harm to Freddie Mac. Therefore, Executive agrees that during Executive’s employment with Freddie Mac,\nand for the twelve (12) months immediately following termination of Executive’s employment for any reason, Executive\nwill not consider offers of employment from, seek or accept employment with, or otherwise directly or indirectly provide\nprofessional services to any Competitor. Executive acknowledges and agrees that this covenant has unique, substantial\nand immeasurable value to Freddie Mac, that Executive has sufficient skills to provide a livelihood for Executive while\nthis covenant remains in force, and that this covenant will not interfere with Executive’s ability to work consistent with\nExecutive’s experience, training and education. This non-competition covenant applies regardless of whether Executive’s\nemployment is terminated by Executive, by Freddie Mac, or by a joint decision.\nIf Executive is a licensed lawyer, this non-competition covenant shall be interpreted in a manner consistent with any rule\napplicable to a legal licensed professional in the jurisdiction(s) of Executive’s licensure or registration that concerns the\nExecutive's employment as counsel with, or provisions of legal services to, a Competitor.\nIII. Non-Solicitation and Non-Recruitment\nDuring Executive’s employment with Freddie Mac and for a period of twelve (12) months after Executive’s termination\ndate, Executive will not solicit or recruit, attempt to solicit or recruit or assist another in soliciting or recruiting any\nFreddie Mac managerial employee (including manager-level, Director-level, or officer-level employee) with whom\nExecutive worked, or any employee whom Executive directly or indirectly supervised at Freddie Mac, to leave the\nemployee’s employment with Freddie Mac for purposes of employment or for the rendering of professional services.\nThis prohibition against solicitation does not apply if Freddie Mac has notified the employee being solicited that his/her\nemployment with the Company will be terminated pursuant to a corporate reorganization or reduction-in-force.\nIf Executive is a licensed lawyer, this non-solicitation covenant shall be interpreted in a manner consistent with any rule\napplicable to a licensed legal professional in the jurisdiction(s) of Executive’s licensure or registration.\nIV. Treatment of Confidential Information\nA. Non-Disclosure. Executive recognizes that Freddie Mac is engaged in an extremely competitive business and that, in\nthe course of performing Executive’s job duties, Executive will have access to and gain knowledge about Confidential\nInformation. Executive further recognizes the importance of carefully protecting this Confidential Information in order\nfor Freddie Mac to compete successfully. Therefore, Executive agrees\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage3of6\nthat Executive will neither divulge Confidential Information to any persons, including to other Freddie Mac employees\nwho do not have a Freddie Mac business-related need to know, nor make use of the Confidential Information for the\nExecutive’s own benefit or for the benefit of anyone else other than Freddie Mac. Executive further agrees to take all\nreasonable precautions to prevent the disclosure of Confidential Information to unauthorized persons or entities, and to\ncomply with all Company policies, procedures, and instructions regarding the treatment of such information.\nB. Return of Materials. Executive agrees that upon termination of Executive’s employment with Freddie Mac for any\nreason whatsoever, Executive will deliver to Executive’s immediate supervisor all tangible materials embodying\nConfidential Information, including, but not limited to, any documentation, records, listings, notes, files, data, sketches,\nmemoranda, models, accounts, reference materials, samples, machine-readable media, computer disks, tapes, and\nequipment which in any way relate to Confidential Information, whether developed by Executive or not. Executive\nfurther agrees not to retain any copies of any materials embodying Confidential Information.\nC. Post-Termination Obligations. Executive agrees that after the termination of Executive’s employment for any reason,\nExecutive will not use in any way whatsoever, nor disclose any Confidential Information learned or obtained in\nconnection with Executive’s employment with Freddie Mac without first obtaining the written permission of the Vice\nPresident of Human Capital Management. Executive further agrees that, in order to assure the continued confidentiality\nof the Confidential Information, Freddie Mac may correspond with Executive’s future employers to advise them\ngenerally of Executive’s exposure to and knowledge of Confidential Information, and Executive’s obligations and\nresponsibilities regarding the Confidential Information. Executive understands and agrees that any such contact may\ninclude a request for assurance and confirmation from such employer(s) that Executive will not disclose Confidential\nInformation to such employer(s), nor will such employer(s) permit any use whatsoever of the Confidential Information.\nTo enable Freddie Mac to monitor compliance with the obligations imposed by this Agreement, Executive further agrees\nto inform in writing Freddie Mac’s Executive Vice President of Human Resources of the identity of Executive’s\nsubsequent employer(s) and Executive’s prospective job title and responsibilities prior to beginning employment.\nExecutive agrees that this notice requirement shall remain in effect for twelve (12) months following the termination of\nExecutive’s Freddie Mac employment.\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage4of6\nD. Ability to Enforce Agreement and Assist Government Investigations. Nothing in this Agreement prohibits or\notherwise restricts you from: (1) making any disclosure of information required by law; (2) assisting any regulatory or\nlaw enforcement agency or legislative body to the extent you maintain a legal right to do so notwithstanding this\nAgreement; (3) filing, testifying, participating in or otherwise assisting in a proceeding relating to the alleged violation of\nany federal, state, or local law, regulation, or rule, to the extent you maintain a legal right to do so notwithstanding this\nAgreement; or (4) filing, testifying, participating in or otherwise assisting the Securities and Exchange Commission or\nany other proper authority in a proceeding relating to allegations of fraud.\nV. Consideration Given to Executive\nIn exchange for Executive agreeing to be bound by this Agreement, Freddie Mac agrees to provide Executive with the\nfollowing consideration, each of which itself is adequate for Executive's agreement to be bound by the provisions of this\nAgreement:\nA. Long-Term Incentive Grant. Executive will receive a 2006 long-term incentive grant pursuant to the terms that the\nCompensation and Human Resources Committee of the Freddie Mac Board of Directors approved on or about March 3,\n2006; and/or\nB. Employment. Executive will be employed by Freddie Mac as Senior Vice President; and\nAdditional Consideration. If Executive currently is subject to another Restrictive Covenant and Confidentiality\nAgreement that provides for any additional consideration in the event of termination, this Agreement shall not negate\nsuch additional form of consideration.\nVI. Reservation of Rights\nExecutive agrees that nothing in this Agreement constitutes a contract or commitment by Freddie Mac to continue\nExecutive’s employment in any job position for any period of time, nor does anything in this Agreement limit in any way\nFreddie Mac’s right to terminate Executive’s employment at any time for any reason.\nVII. Previous Agreements\nExcept as otherwise stated herein, this Agreement supercedes all previous agreements between Executive and Freddie\nMac which bear the title of “Confidentiality and Restrictive Covenant Agreement,” and/or “Restrictive Covenant and\nConfidentiality Agreement.”\nVIII. Enforcement\nA. Executive acknowledges that Executive may be subject to discipline, up to and including termination of employment,\nfor Executive’s breach or threat of breach of any\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage5of6\nprovision of this Agreement.\nB. Executive agrees that irreparable injury will result to Freddie Mac’s business interests in the event of breach or\nthreatened breach of this Agreement, the full extent of Freddie Mac’s damages will be impossible to ascertain, and\nmonetary damages will not be an adequate remedy for Freddie Mac. Therefore, Executive agrees that in the event of a\nbreach or threat of breach of any provision(s) of this Agreement, Freddie Mac, in addition to any other relief available,\nshall be entitled to temporary, preliminary, and permanent equitable relief to restrain any such breach or threat of breach\nby Executive and all persons acting for and/or in concert with Executive, without the necessity of posting bond or\nsecurity, which Executive expressly waives.\nC. Executive agrees that each of Executive’s obligations specified in this Agreement is a separate and independent\ncovenant, and that all of Executive’s obligations set forth herein shall survive any termination, for any reason, of\nExecutive’s Freddie Mac employment. To the extent that any provision of this Agreement is determined by a court of\ncompetent jurisdiction to be unenforceable because it is overbroad, that provision shall be limited and enforced to the\nextent permitted by applicable law. Should any provision of this Agreement be declared or determined by any court of\ncompetent jurisdiction to be unenforceable or invalid under applicable law, the validity of the remaining obligations will\nnot be affected thereby and only the unenforceable or invalid obligation will be deemed not to be a part of this\nAgreement.\nD. This Agreement is governed by, and will be construed in accordance with, the laws of the Commonwealth of\nVirginia, without regard to its or any other jurisdiction’s conflict-of-law provisions. Executive agrees that any action\nrelated to or arising out of this Agreement shall be brought exclusively in the United States District Court for the Eastern\nDistrict of Virginia, and Executive hereby irrevocably consents to personal jurisdiction and venue in such court and to\nservice of process by United States Mail or express courier service in any such action.\nE. If any dispute(s) arise(s) between Freddie Mac and Executive with respect to any matter which is the subject of this\nAgreement, the prevailing party in such dispute(s) shall be entitled to recover from the other party all of its costs and\nexpenses, including its reasonable attorneys’ fees.\nExecutive has been advised to discuss all aspects of this Agreement with Executive’s private attorney. Executive\nacknowledges that Executive has carefully read and understands the terms and provisions of this Agreement and\nthat they are reasonable. Executive signs this Agreement voluntarily and accepts all obligations contained in this\nAgreement in exchange for the consideration to be given to Executive as outlined above, which Executive\nacknowledges is adequate and satisfactory, and which Executive further acknowledges Freddie Mac is not\notherwise obligated to provide to Executive. Neither Freddie Mac nor its agents, representatives, Executives,\nofficers or employees have made any representations to Executive concerning the terms or effects of this\nAgreement, other than those contained in this Agreement.\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage6of6\nBy: /s/ Peter J. Federico\nDate: March 17, 2006\nPeter Federico\nBy: /s/ Paul George\nDate: March 24, 2006\nPaul George\nExecutive Vice President – Human Resources	Exhibit 10.52\nRESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT\nIn exchange for the mutual promises and consideration set forth below, this Restrictive Covenant and Confidentiality\nAgreement (”A greement”) is entered into by and between the Federal Home Loan Mortgage Corporation (”Freddie Mac”\nor ”Company”) and Peter Federico (”Executive”), effective as of March 1, 2006.\n1. Definitions\nThe following terms shall have the meanings indicated when used in this Agreement.\nA. C ompetitor: The following entities, and their respective parents, successors, subsidiaries, and affiliates are\ncompetitors: (i) Fannie Mae (ii) all Federal Home Loan Banks (including the Office of Finance) ,- and (iii) such other\nentities to which Executive and the Company may agree in writing from time-to-time.\nB. Confidential Information: Information or materials in written, oral, magnetic, digital, computer, photographic, optical,\nelectronic, or other form, whether now existing or developed or created during the period of Executive’s employment\nwith Freddie Mac, that constitutes trade secrets and/or proprietary or confidential information. This information includes,\nbut is not limited to: (i) all information marked Proprietary or Confidential,- (ii) information concerning the components,\ncapabilities, and attributes of Freddie Mac’s business plans, methods, and strategies; (iii) information relating to tactics,\nplans, or strategies concerning shareholders, investors, pricing, investment, marketing, sales, trading, funding, hedging,\nmodeling, sales and risk management,- (iv) financial or tax information and analyses, including but not limited to,\ninformation concerning Freddie Mac’s capital structure and tax or financial planning,- (v) confidential information about\nFreddie Mac’s customers, borrowers, employees, or others,- (vi) pricing and quoting information, policies, procedures,\nand practices,- (vii) confidential customer lists,- (viii) proprietary algorithms,- (ix) confidential contract terms,-\n(x) confidential information concerning Freddie Mac’s policies, procedures, and practices or the way in which Freddie\nMac does business,- (xi) proprietary or confidential data bases, including their structure and content,- (xii) proprietary\nFreddie Mac business software, including its design, specifications and documentation,- (xiii) information about Freddie\nMac products, programs, and services which has not yet been made public,- (xiv) confidential information about Freddie\nMac’s dealings with third parties, including dealers, customers, vendors, and regulators,- and/or (xv) confidential\ninformation belonging to third parties to which Executive received access in connection with Executive’s employment\nwith Freddie Mac. Confidential Information does not include general skills, experience, or knowledge acquired in\nconnection with Executive’ s employment with Freddie Mac that otherwise are generally known to the public or within\nthe industry or trade in which Freddie Mac operates.\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage 2 of 6\nII. Non-C ompetition\nExecutive recognizes that as a result of Executive’s employment with Freddie Mac, Executive has access to and\nknowledge of critically sensitive Confidential Information, the improper disclosure or use of which would result in grave\ncompetitive harm to Freddie Mac. Therefore, Executive agrees that during Executive’s employment with Freddie Mac,\nand for the twelve (12) months immediately following termination of Executive’s employment for any reason, Executive\nwill not consider offers of employment from, seek or accept employment with, or otherwise directly or indirectly provide\nprofessional services to any Competitor. Executive acknowledges and agrees that this covenant has unique, substantial\nand immeasurable value to Freddie Mac, that Executive has sufficient skills to provide a livelihood for Executive while\nthis covenant remains in force, and that this covenant will not interfere with Executive’s ability to work consistent with\nExecutive’s experience, training and education. This non-competition covenant applies regardless of whether Executive’s\nemployment is terminated by Executive, by Freddie Mac, or by a joint decision.\nIf Executive is a licensed lawyer, this non-competition covenant shall be interpreted in a manner consistent with any rule\napplicable to a legal licensed professional in the jurisdiction(s) of Executive’ s licensure or registration that concerns the\nExecutive's employment as counsel with, or provisions of legal services to, a Competitor.\nIII. Non-Solicitation and Non-Recruitment\nDuring Executive’ s employment with Freddie Mac and for a period of twelve (12) months after Executive’s termination\ndate, Executive will not solicit or recruit, attempt to solicit or recruit or assist another in soliciting or recruiting any\nFreddie Mac managerial employee (including manager-level, Director-level, or officer-level employee) with whom\nExecutive worked, or any employee whom Executive directly or indirectly supervised at Freddie Mac, to leave the\nemployee’s employment with Freddie Mac for purposes of employment or for the rendering of professional services.\nThis prohibition against solicitation does n_ot apply if Freddie Mac has notified the employee being solicited that his/her\nemployment with the Company will be terminated pursuant to a corporate reorganization or reduction-in-force.\nIf Executive is a licensed lawyer, this non-solicitation covenant shall be interpreted in a manner consistent with any rule\napplicable to a licensed legal professional in the jurisdiction(s) of Executive’ s licensure or registration.\nIV. Treatment of Confidential Information\nA. Non-Disclosure. Executive recognizes that Freddie Mac is engaged in an extremely competitive business and that, in\nthe course of performing Executive’s job duties, Executive will have access to and gain knowledge about Confidential\nInformation. Executive further recognizes the importance of carefully protecting this Confidential Information in order\nfor Freddie Mac to compete successfully. Therefore, Executive agrees\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage 3 of 6\nthat Executive will neither divulge Confidential Information to any persons, including to other Freddie Mac employees\nwho do not have a Freddie Mac business-related need to know, nor make use of the Confidential Information for the\nExecutive’s own benefit or for the benefit of anyone else other than Freddie Mac. Executive further agrees to take all\nreasonable precautions to prevent the disclosure of Confidential Information to unauthorized persons or entities, and to\ncomply with all Company policies, procedures, and instructions regarding the treatment of such information.\nB. Return of Materials. Executive agrees that upon termination of Executive’ s employment with Freddie Mac for any\nreason whatsoever, Executive will deliver to Executive’s immediate supervisor all tangible materials embodying\nConfidential Information, including, but not limited to, any documentation, records, listings, notes, files, data, sketches,\nmemoranda, models, accounts, reference materials, samples, machine- readable media, computer disks, tapes, and\nequipment which in any way relate to Confidential Information, whether developed by Executive or not. Executive\nfurther agrees not to retain any copies of any materials embodying Confidential Information.\nC. Post-Termination Obligations. Executive agrees that after the termination of Executive’s employment for any reason,\nExecutive will not use in any way whatsoever, nor disclose any Confidential Information learned or obtained in\nconnection with Executive’ s employment with Freddie Mac without first obtaining the written permission of the Vice\nPresident of Human Capital Management. Executive further agrees that, in order to assure the continued confidentiality\nof the Confidential Information, Freddie Mac may correspond with Executive’ s future employers to advise them\ngenerally of Executive’s exposure to and knowledge of Confidential Information, and Executive’ s obligations and\nresponsibilities regarding the Confidential Information. Executive understands and agrees that any such contact may\ninclude a request for assurance and confirmation from such employer(s) that Executive will not disclose Confidential\nInformation to such employer(s), nor will such employer(s) permit any use whatsoever of the Confidential Information.\nTo enable Freddie Mac to monitor compliance with the obligations imposed by this Agreement, Executive further agrees\nto inform in writing Freddie Mac’s Executive Vice President of Human Resources of the identity of Executive’s\nsubsequent employer(s) and Executive’s prospective job title and responsibilities prior to beginning employment.\nExecutive agrees that this notice requirement shall remain in effect for twelve (12) months following the termination of\nExecutive’s Freddie Mac employment.\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage 4 of 6\nD. Ability to Enforce Agreement and Assist G overnment Investigations. Nothing in this Agreement prohibits or\notherwise restricts you from: (1) making any disclosure of information required by law,- (2) assisting any regulatory or\nlaw enforcement agency or legislative body to the extent you maintain a legal right to do so notwithstanding this\nAgreement,- (3) filing, testifying, participating in or otherwise assisting in a proceeding relating to the alleged violation of\nany federal, state, or local law, regulation, or rule, to the extent you maintain a legal right to do so notwithstanding this\nAgreement,- or (4) filing, testifying, participating in or otherwise assisting the Securities and Exchange Commission or\nany other proper authority in a proceeding relating to allegations of fraud.\nV. Consideration Given to Executive\nIn exchange for Executive agreeing to be bound by this Agreement, Freddie Mac agrees to provide Executive with the\nfollowing consideration, each of which itself is adequate for Executive's agreement to be bound by the provisions of this\nA greement:\nA. Long-Term Incentive G rant. Executive will receive a 2006 long-terrn incentive grant pursuant to the terms that the\nCompensation and Human Resources Committee of the Freddie Mac Board of Directors approved on or about March 3,\n2006,- and/or\nB. Employment. Executive will be employed by Freddie Mac as Senior Vice President,- and\nAdditional Consideration. If Executive currently is subject to another Restrictive Covenant and Confidentiality\nAgreement that provides for any additional consideration in the event of termination, this Agreement shall not negate\nsuch additional form of consideration.\nVI. Reservation of Rights\nExecutive agrees that nothing in this Agreement constitutes a contract or commitment by Freddie Mac to continue\nExecutive’s employment in any job position for any period of time, nor does anything in this Agreement limit in any way\nFreddie Mac’s right to terminate Executive’s employment at any time for any reason.\nVII. Previous Agreements\nExcept as otherwise stated herein, this Agreement supercedes all previous agreements between Executive and Freddie\nMac which bear the title of ”Confidentiality and Restrictive Covenant Agreement,” and/or ”Restrictive Covenant and\nConfidentiality Agreement.”\nVIII. Enforcement\nA. Executive acknowledges that Executive may be subject to discipline, up to and including termination of employment,\nfor Executive’ s breach or threat of breach of any\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage 5 of 6\nprovision of this Agreement.\nB. Executive agrees that irreparable injury will result to Freddie Mac’s business interests in the event of breach or\nthreatened breach of this Agreement, the full extent of Freddie Mac’s damages will be impossible to ascertain, and\nmonetary damages will not be an adequate remedy for Freddie Mac. Therefore, Executive agrees that in the event of a\nbreach or threat of breach of any provision(s) of this Agreement, Freddie Mac, in addition to any other relief available,\nshall be entitled to temporary, preliminary, and permanent equitable relief to restrain any such breach or threat of breach\nby Executive and all persons acting for and/or in concert with Executive, without the necessity of posting bond or\nsecurity, which Executive expressly waives.\nC. Executive agrees that each of Executive’ s obligations specified in this Agreement is a separate and independent\ncovenant, and that all of Executive’s obligations set forth herein shall survive any termination, for any reason, of\nExecutive’s Freddie Mac employment. To the extent that any provision of this Agreement is determined by a court of\ncompetent jurisdiction to be unenforceable because it is overbroad, that provision shall be limited and enforced to the\nextent permitted by applicable law. Should any provision of this Agreement be declared or determined by any court of\ncompetent jurisdiction to be unenforceable or invalid under applicable law, the validity of the remaining obligations will\nnot be affected thereby and only the unenforceable or invalid obligation will be deemed not to be a part of this\nAgreement.\nD. This Agreement is governed by, and will be construed in accordance with, the laws of the Commonwealth of\nVirginia, without regard to its or any other jurisdiction’s conflict-of-law provisions. Executive agrees that any action\nrelated to or arising out of this Agreement shall be brought exclusively in the United States District Court for the Eastern\nDistrict of Virginia, and Executive hereby irrevocably consents to personal jurisdiction and venue in such court and to\nservice of process by United States Mail or express courier service in any such action.\nE. If any dispute(s) arise(s) between Freddie Mac and Executive with respect to any matter which is the subject of this\nAgreement, the prevailing party in such dispute(s) shall be entitled to recover from the other party all of its costs and\nexpenses, including its reasonable attorneys’ fees.\nExecutive has been advised to discuss all aspects of this Agreement with Executive’s private attorney. Executive\nacknowledges that Executive has carefully read and understands the terms and provisions of this Agreement and\nthat they are reasonable. Executive signs this Agreement voluntarily and accepts all obligations contained in this\nAgreement in exchange for the consideration to be given to Executive as outlined above, which Executive\nacknowledges is adequate and satisfactory, and which Executive further acknowledges Freddie Mac is not\notherwise obligated to provide to Executive. Neither Freddie Mac nor its agents, representatives, Executives,\nofficers or employees have made any representations to Executive concerning the terms or effects of this\nAgreement, other than those contained in this Agreement.\nRestrictive Covenant and Confidentiality Agreement for Peter Federico Page 6 of 6\nBy: /s/ Peter]. Federico\nPeter Federico\nBy: /s/ Paul George\nPaul G eorge\nExecutive Vice President — Human Resources\nDate: March 17, 2006\nDate: March 24, 2006	Exhibit 10.52\nRESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT\nIn exchange for the mutual promises and consideration set forth below, this Restrictive Covenant and Confidentiality\nA greement greement") is entered into by and between the Federal Home Loan Mortgage Corporation ("Freddie Mac"\nor "Company") and Peter Federico ("Executive"), effective as of March 1, 2006.\nI. Definitions\nThe following terms shall have the meanings indicated when used in this A greement.\nA. Competitor: The following entities, and their respective parents, successors, subsidiaries, and affiliates are\ncompetitors: (i) Fannie Mae (ii) all Federal Home Loan Banks (including the Office of Finance); and (iii) such other\nentities to which Executive and the Company may agree in writing from time-to-time.\nB. Confidential Information: Information or materials in written, oral, magnetic, digital, computer, photographic, optical,\nelectronic, or other form, whether now existing or developed or created during the period of Executive's employment\nwith Freddie Mac, that constitutes trade secrets and/or proprietary or confidential information. This information includes,\nbut is not limited to: (i) all information marked Proprietary or Confidential; (ii) information concerning the components,\ncapabilities, and attributes of Freddie Mac's business plans, methods, and strategies; (iii) information relating to tactics,\nplans, or strategies concerning shareholders, investors, pricing, investment, marketing, sales, trading, funding, hedging,\nmodeling, sales and risk management; (iv) financial or tax information and analyses, including but not limited to,\ninformation concerning Freddie Mac's capital structure and tax or financial planning; (v) confidential information about\nFreddie Mac's customers borrowers, employees, or others; (vi) pricing and quoting information, policies, procedures,\nand practices; (vii) confidential customer lists; (viii) proprietary algorithms; (ix) confidential contract terms;\n(x) confidential information concerning Freddie Mac's policies, procedures, and practices or the way in which Freddie\nMac does business; (xi) proprietary or confidential data bases including their structure and content; (xii) proprietary\nFreddie Mac business software, including its design, specifications and documentation; (xiii) information about Freddie\nMac products, programs, and services which has not yet been made public; (xiv) confidential information about Freddie\nMac's dealings with third parties, including dealers, customers, vendors, and regulators; and/or (xv) confidential\ninformation belonging to third parties to which Executive received access in connection with Executive's employment\nwith Freddie Mac. Confidential Information does not include general skills, experience, or knowledge acquired in\nconnection with Executive's employment with Freddie Mac that otherwise are generally known to the public or within\nthe industry or trade in which Freddie Mac operates.\nRestrictive Covenant and Confidentiality greement for Peter Federico\nPage 2 of 6\nII. Non-c ompetition\nExecutive recognizes that as a result of Executive's employment with Freddie Mac, Executive has access to and\nknowledge of critically sensitive Confidential Information, the improper disclosure or use of which would result in grave\ncompetitive harm to Freddie Mac. Therefore, Executive agrees that during Executive's employment with Freddie Mac,\nand for the twelve (12) months immediately following termination of Executive's employment for any reason, Executive\nwill not consider offers of employment from, seek or accept employment with, or otherwise directly or indirectly provide\nprofessional services to any Competitor. Executive acknowledges and agrees that this covenant has unique, substantial\nand immeasurable value to Freddie Mac, that Executive has sufficient skills to provide a livelihood for Executive while\nthis covenant remains in force, and that this covenant will not interfere with Executive's ability to work consistent with\nExecutive's experience, training and education. This on-competition covenant applies regardless of whether Executive's\nemployment is terminated by Executive, by Freddie Mac, or by a joint decision.\nIf Executive is a licensed lawyer, this non-competition covenant shall be interpreted in a manner consistent with any rule\napplicable to a legal licensed professiona in the jurisdiction(s) of Executive's licensure or registration that concerns the\nExecutive's employment as counsel with, or provisions of legal services to, a Competitor.\nIII. Non-Solicitation and Non-Recruitment\nDuring Executive's employment with Freddie Mac and for a period of twelve (12) months after Executive's termination\ndate, Executive will not solicit or recruit, attempt to solicit or recruit or assist another in soliciting or recruiting any\nFreddie Mac managerial employee (including manager-level, Director-level, or officer-level employee) with whom\nExecutive worked, or any employee whom Executive directly or indirectly supervised at Freddie Mac, to leave the\nemployee's employment with Freddie Mac for purposes of employment or for the rendering of professional services.\nThis prohibition against solicitation does not apply if Freddie Mac has notified the employee being solicited that his/her\nemployment with the Company will be terminated pursuant to a corporate reorganization or reduction-in-force\nIf Executive is a licensed lawyer, this non-solicitation covenant shall be interpreted in a manner consistent with any rule\napplicable to a licensed legal professional in the jurisdiction(s) of Executive's licensure or registration.\nIV. Treatment of Confidential Information\nA. Non-Disclosure. Executive recognizes that Freddie Mac is engaged in an extremely competitive business and that, in\nthe course of performing Executive's job duties, Executive will have access to and gain knowledge about Confidential\nInformation. Executive further recognizes the importance of carefully protecting this Confidential Information in order\nfor Freddie Mac to compete successfully. Therefore, Executive agrees\nRestrictive Covenant and Confidentiality greement for Peter Federico\nPage 3 of 6\nthat Executive will neither divulge Confidential Information to any persons, including to other Freddie Mac employees\nwho do not have a Freddie Mac business-related need to know, nor make use of the Confidential Information for the\nExecutive's own benefit or for the benefit of anyone else other than Freddie Mac. Executive further agrees to take all\nreasonable precautions to prevent the disclosure of Confidential Information to unauthorized persons or entities, and to\ncomply with all Company policies, procedures, and instructions regarding the treatment of such information.\nB. Return of Materials. Executive agrees that upon termination of Executive's employment with Freddie Mac for any\nreason whatsoever, Executive will deliver to Executive's immediate supervisor all tangible materials embodying\nConfidential Information, including, but not limited to, any documentation, records, listings, notes, files, data, sketches,\nmemoranda, models, accounts, reference materials, samples, machine-readable media, computer disks, tapes, and\nequipment which in any way relate to Confidential Information, whether developed by Executive or not. Executive\nfurther agrees not to retain any copies of any materials embodying Confidential Information.\nC. Post-Termination Obligations. Executive agrees that after the termination of Executive's employment for any reason,\nExecutive will not use in any way whatsoever, nor disclose any Confidential Information learned or obtained in\nconnection with Executive's employment with Freddie Mac without first obtaining the written permission of the Vice\nPresident of Human Capital Management. Executive further agrees that, in order to assure the continued confidentiality\nof the Confidential Information, Freddie Mac may correspond with Executive's future employers to advise them\ngenerally of Executive's exposure to and knowledge of Confidential Information, and Executive's obligations and\nresponsibilities regarding the Confidential Information. Executive understands and agrees that any such contact may\ninclude a request for assurance and confirmation from such employer(s) that Executive will not disclose Confidential\nInformation to such employer(s), nor will such employer(s) permit any use whatsoever of the Confidential Information.\nTo enable Freddie Mac to monitor compliance with the obligations imposed by this A greement, Executive further agrees\nto inform in writing Freddie Mac's Executive Vice President of Human Resources of the identity of Executive's\nsubsequent employer(s) and Executive's prospective job title and responsibilities prior to beginning employment.\nExecutive agrees that this notice requirement shall remain in effect for twelve (12) months following the termination\nof\nExecutive's Freddie Mac employment\nRestrictive Covenant and Confidentiality greement for Peter Federico\nPage 4 of 6\nD. Ability to Enforce Agreement and Assist Government Investigations. Nothing in this A greement prohibits or\notherwise restricts you from: (1) making any disclosure of information required by law; (2) assisting any regulatory or\nlaw enforcement agency or legislative body to the extent you maintain a legal right to do so notwithstanding this\nA greement; (3) filing, testifying, participating in or otherwise assisting in a proceeding relating to the alleged violation of\nany federal, state, or local law, regulation, or rule, to the extent you maintain a legal right to do so notwithstanding this\nA greement; or (4) filing, testifying, participating in or otherwise assisting the Securities and Exchange Commission or\nany other proper authority in a proceeding relating to allegations of fraud.\nV. Consideration iven to Executive\nIn exchange for Executive agreeing to be bound by this A greement, Freddie Mac agrees to provide Executive with the\nfollowing consideration, each of which itself is adequate for Executive's agreement to be bound by the provisions of this\ngreement:\nA. Long-Term Incentive Grant Executive will receive a 2006 long-term incentive grant pursuant to the terms that the\nCompensation and Human Resources Committee of the Freddie Mac Board of Directors approved on or about March 3,\n2006; and/or\nB. Employment. Executive will be employed by Freddie Mac as Senior Vice President; and\nAdditional Consideration. If Executive currently is subject to another Restrictive Covenant and Confidentiality\nA greement that provides for any additional consideration in the event of termination, this A greement shall not negate\nsuch additional form of consideration.\nVI. Reservation of Rights\nExecutive agrees that nothing in this A greement constitutes a contract or commitment by Freddie Mac to continue\nExecutive's employment in any job position for any period of time, nor does anything in this A greement limit in any way\nFreddie Mac's right to terminate Executive's employment at any time for any reason.\nVII. Previous Agreements\nExcept as otherwise stated herein this A greement supercedes all previous agreements between Executive and Freddie\nMac which bear the title of "Confidentiality and Restrictive Covenant A greement," and/or "Restrictive Covenant and\nConfidentiality A greement."\nVIII. Enforcement\nA. Executive acknowledges that Executive may be subject to discipline, up to and including termination of employment,\nfor Executive's breach or threat of breach of any\nRestrictive Covenant and Confidentiality greement for Peter Federico\nPage 5 of 6\nprovision of this A greement.\nB. Executive agrees that irreparable injury will result to Freddie Mac's business interests in the event of breach or\nthreatened breach of this A greement, the full extent of Freddie Mac's damages will be impossible to ascertain, and\nmonetary damages will not be an adequate remedy for Freddie Mac. Therefore, Executive agrees that in the event of a\nbreach or threat of breach of any provision(s) of this greement, Freddie Mac, in addition to any other relief available,\nshall be entitled to temporary, preliminary, and permanent equitable relief to restrain any such breach or threat of breach\nby Executive and all persons acting for and/or in concert with Executive without the necessity of posting bond or\nsecurity, which Executive expressly waives.\nC. Executive agrees that each of Executive's obligations specified in this A greement is a separate and independent\ncovenant, and that all of Executive's obligations set forth herein shall survive any termination, for any reason, of\nExecutive's Freddie Mac employment. To the extent that any provision of this greement is determined by a court of\ncompetent jurisdiction to be unenforceable because it is overbroad, that provision shall be limited and enforced to the\nextent permitted by applicable law. Should any provision of this A greement be declared or determined by any court of\ncompetent jurisdiction to be unenforceable or invalid under applicable law, the validity of the remaining obligations will\nnot be affected thereby and only the unenforceable or invalid obligation will be deemed not to be a part of this\nA greement.\nD. This A greement is governed by, and will be construed in accordance with, the laws of the Commonwealth of\nVirginia, without regard to its or any other jurisdiction's conflict-of-law provisions. Executive agrees that any action\nrelated to or arising out of this A greement shall be brought exclusively in the United States District Court for the Eastern\nDistrict of Virginia, and Executive hereby irrevocably consents to personal jurisdiction and venue in such court and to\nservice of process by United States Mail or express courier service in any such action.\nE. If any dispute(s) arise(s) between Freddie Mac and Executive with respect to any matter which is the subject of this\nA greement, the prevailing party in such dispute(s) shall be entitled to recover from the other party all of its costs and\nexpenses, including its reasonable attorneys' fees.\nExecutive has been advised to discuss all aspects of this A greement with Executive's private attorney. Executive\nacknowledges that Executive has carefully read and understands the terms and provisions of this Agreement and\nthat they are reasonable. Executive signs this Agreement voluntarily and accepts all obligations contained in this\nAgreement in exchange for the consideration to be given to Executive as outlined above, which Executive\nacknowledges is adequate and satisfactory, and which Executive further acknowledges Freddie Mac is not\notherwise obligated to provide to Executive. Neither Freddie Mac nor its agents, representatives, Executives,\nofficers or employees have made any representations to Executive concerning the terms or effects of this\nAgreement, other than those contained in this Agreement.\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage 6 of 6\nBy: /s/ Peter J. Federico\nDate: March 17, 2006\nPeter Federico\nBy: /s/ Paul George\nDate: March 24, 2006\nPaul George\nExecutive Vice President - Human Resources	Exhibit 10.52\nRESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT\nIn exchange for the mutual promises and consideration set forth below, this Restrictive Covenant and Confidentiality\nAgreement (“Agreement”) is entered into by and between the Federal Home Loan Mortgage Corporation (“Freddie Mac”\nor “Company”) and Peter Federico (“Executive”), effective as of March 1, 2006.\nI. Definitions\nThe following terms shall have the meanings indicated when used in this Agreement.\nA. Competitor: The following entities, and their respective parents, successors, subsidiaries, and affiliates are\ncompetitors: (i) Fannie Mae (ii) all Federal Home Loan Banks (including the Office of Finance); and (iii) such other\nentities to which Executive and the Company may agree in writing from time-to-time.\nB. Confidential Information: Information or materials in written, oral, magnetic, digital, computer, photographic, optical,\nelectronic, or other form, whether now existing or developed or created during the period of Executive’s employment\nwith Freddie Mac, that constitutes trade secrets and/or proprietary or confidential information. This information includes,\nbut is not limited to: (i) all information marked Proprietary or Confidential; (ii) information concerning the components,\ncapabilities, and attributes of Freddie Mac’s business plans, methods, and strategies; (iii) information relating to tactics,\nplans, or strategies concerning shareholders, investors, pricing, investment, marketing, sales, trading, funding, hedging,\nmodeling, sales and risk management; (iv) financial or tax information and analyses, including but not limited to,\ninformation concerning Freddie Mac’s capital structure and tax or financial planning; (v) confidential information about\nFreddie Mac’s customers, borrowers, employees, or others; (vi) pricing and quoting information, policies, procedures,\nand practices; (vii) confidential customer lists; (viii) proprietary algorithms; (ix) confidential contract terms;\n(x) confidential information concerning Freddie Mac’s policies, procedures, and practices or the way in which Freddie\nMac does business; (xi) proprietary or confidential data bases, including their structure and content; (xii) proprietary\nFreddie Mac business software, including its design, specifications and documentation; (xiii) information about Freddie\nMac products, programs, and services which has not yet been made public; (xiv) confidential information about Freddie\nMac’s dealings with third parties, including dealers, customers, vendors, and regulators; and/or (xv) confidential\ninformation belonging to third parties to which Executive received access in connection with Executive’s employment\nwith Freddie Mac. Confidential Information does not include general skills, experience, or knowledge acquired in\nconnection with Executive’s employment with Freddie Mac that otherwise are generally known to the public or within\nthe industry or trade in which Freddie Mac operates.\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage2of6\nII. Non-Competition\nExecutive recognizes that as a result of Executive’s employment with Freddie Mac, Executive has access to and\nknowledge of critically sensitive Confidential Information, the improper disclosure or use of which would result in grave\ncompetitive harm to Freddie Mac. Therefore, Executive agrees that during Executive’s employment with Freddie Mac,\nand for the twelve (12) months immediately following termination of Executive’s employment for any reason, Executive\nwill not consider offers of employment from, seek or accept employment with, or otherwise directly or indirectly provide\nprofessional services to any Competitor. Executive acknowledges and agrees that this covenant has unique, substantial\nand immeasurable value to Freddie Mac, that Executive has sufficient skills to provide a livelihood for Executive while\nthis covenant remains in force, and that this covenant will not interfere with Executive’s ability to work consistent with\nExecutive’s experience, training and education. This non-competition covenant applies regardless of whether Executive’s\nemployment is terminated by Executive, by Freddie Mac, or by a joint decision.\nIf Executive is a licensed lawyer, this non-competition covenant shall be interpreted in a manner consistent with any rule\napplicable to a legal licensed professional in the jurisdiction(s) of Executive’s licensure or registration that concerns the\nExecutive's employment as counsel with, or provisions of legal services to, a Competitor.\nIII. Non-Solicitation and Non-Recruitment\nDuring Executive’s employment with Freddie Mac and for a period of twelve (12) months after Executive’s termination\ndate, Executive will not solicit or recruit, attempt to solicit or recruit or assist another in soliciting or recruiting any\nFreddie Mac managerial employee (including manager-level, Director-level, or officer-level employee) with whom\nExecutive worked, or any employee whom Executive directly or indirectly supervised at Freddie Mac, to leave the\nemployee’s employment with Freddie Mac for purposes of employment or for the rendering of professional services.\nThis prohibition against solicitation does not apply if Freddie Mac has notified the employee being solicited that his/her\nemployment with the Company will be terminated pursuant to a corporate reorganization or reduction-in-force.\nIf Executive is a licensed lawyer, this non-solicitation covenant shall be interpreted in a manner consistent with any rule\napplicable to a licensed legal professional in the jurisdiction(s) of Executive’s licensure or registration.\nIV. Treatment of Confidential Information\nA. Non-Disclosure. Executive recognizes that Freddie Mac is engaged in an extremely competitive business and that, in\nthe course of performing Executive’s job duties, Executive will have access to and gain knowledge about Confidential\nInformation. Executive further recognizes the importance of carefully protecting this Confidential Information in order\nfor Freddie Mac to compete successfully. Therefore, Executive agrees\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage3of6\nthat Executive will neither divulge Confidential Information to any persons, including to other Freddie Mac employees\nwho do not have a Freddie Mac business-related need to know, nor make use of the Confidential Information for the\nExecutive’s own benefit or for the benefit of anyone else other than Freddie Mac. Executive further agrees to take all\nreasonable precautions to prevent the disclosure of Confidential Information to unauthorized persons or entities, and to\ncomply with all Company policies, procedures, and instructions regarding the treatment of such information.\nB. Return of Materials. Executive agrees that upon termination of Executive’s employment with Freddie Mac for any\nreason whatsoever, Executive will deliver to Executive’s immediate supervisor all tangible materials embodying\nConfidential Information, including, but not limited to, any documentation, records, listings, notes, files, data, sketches,\nmemoranda, models, accounts, reference materials, samples, machine-readable media, computer disks, tapes, and\nequipment which in any way relate to Confidential Information, whether developed by Executive or not. Executive\nfurther agrees not to retain any copies of any materials embodying Confidential Information.\nC. Post-Termination Obligations. Executive agrees that after the termination of Executive’s employment for any reason,\nExecutive will not use in any way whatsoever, nor disclose any Confidential Information learned or obtained in\nconnection with Executive’s employment with Freddie Mac without first obtaining the written permission of the Vice\nPresident of Human Capital Management. Executive further agrees that, in order to assure the continued confidentiality\nof the Confidential Information, Freddie Mac may correspond with Executive’s future employers to advise them\ngenerally of Executive’s exposure to and knowledge of Confidential Information, and Executive’s obligations and\nresponsibilities regarding the Confidential Information. Executive understands and agrees that any such contact may\ninclude a request for assurance and confirmation from such employer(s) that Executive will not disclose Confidential\nInformation to such employer(s), nor will such employer(s) permit any use whatsoever of the Confidential Information.\nTo enable Freddie Mac to monitor compliance with the obligations imposed by this Agreement, Executive further agrees\nto inform in writing Freddie Mac’s Executive Vice President of Human Resources of the identity of Executive’s\nsubsequent employer(s) and Executive’s prospective job title and responsibilities prior to beginning employment.\nExecutive agrees that this notice requirement shall remain in effect for twelve (12) months following the termination of\nExecutive’s Freddie Mac employment.\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage4of6\nD. Ability to Enforce Agreement and Assist Government Investigations. Nothing in this Agreement prohibits or\notherwise restricts you from: (1) making any disclosure of information required by law; (2) assisting any regulatory or\nlaw enforcement agency or legislative body to the extent you maintain a legal right to do so notwithstanding this\nAgreement; (3) filing, testifying, participating in or otherwise assisting in a proceeding relating to the alleged violation of\nany federal, state, or local law, regulation, or rule, to the extent you maintain a legal right to do so notwithstanding this\nAgreement; or (4) filing, testifying, participating in or otherwise assisting the Securities and Exchange Commission or\nany other proper authority in a proceeding relating to allegations of fraud.\nV. Consideration Given to Executive\nIn exchange for Executive agreeing to be bound by this Agreement, Freddie Mac agrees to provide Executive with the\nfollowing consideration, each of which itself is adequate for Executive's agreement to be bound by the provisions of this\nAgreement:\nA. Long-Term Incentive Grant. Executive will receive a 2006 long-term incentive grant pursuant to the terms that the\nCompensation and Human Resources Committee of the Freddie Mac Board of Directors approved on or about March 3,\n2006; and/or\nB. Employment. Executive will be employed by Freddie Mac as Senior Vice President; and\nAdditional Consideration. If Executive currently is subject to another Restrictive Covenant and Confidentiality\nAgreement that provides for any additional consideration in the event of termination, this Agreement shall not negate\nsuch additional form of consideration.\nVI. Reservation of Rights\nExecutive agrees that nothing in this Agreement constitutes a contract or commitment by Freddie Mac to continue\nExecutive’s employment in any job position for any period of time, nor does anything in this Agreement limit in any way\nFreddie Mac’s right to terminate Executive’s employment at any time for any reason.\nVII. Previous Agreements\nExcept as otherwise stated herein, this Agreement supercedes all previous agreements between Executive and Freddie\nMac which bear the title of “Confidentiality and Restrictive Covenant Agreement,” and/or “Restrictive Covenant and\nConfidentiality Agreement.”\nVIII. Enforcement\nA. Executive acknowledges that Executive may be subject to discipline, up to and including termination of employment,\nfor Executive’s breach or threat of breach of any\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage5of6\nprovision of this Agreement.\nB. Executive agrees that irreparable injury will result to Freddie Mac’s business interests in the event of breach or\nthreatened breach of this Agreement, the full extent of Freddie Mac’s damages will be impossible to ascertain, and\nmonetary damages will not be an adequate remedy for Freddie Mac. Therefore, Executive agrees that in the event of a\nbreach or threat of breach of any provision(s) of this Agreement, Freddie Mac, in addition to any other relief available,\nshall be entitled to temporary, preliminary, and permanent equitable relief to restrain any such breach or threat of breach\nby Executive and all persons acting for and/or in concert with Executive, without the necessity of posting bond or\nsecurity, which Executive expressly waives.\nC. Executive agrees that each of Executive’s obligations specified in this Agreement is a separate and independent\ncovenant, and that all of Executive’s obligations set forth herein shall survive any termination, for any reason, of\nExecutive’s Freddie Mac employment. To the extent that any provision of this Agreement is determined by a court of\ncompetent jurisdiction to be unenforceable because it is overbroad, that provision shall be limited and enforced to the\nextent permitted by applicable law. Should any provision of this Agreement be declared or determined by any court of\ncompetent jurisdiction to be unenforceable or invalid under applicable law, the validity of the remaining obligations will\nnot be affected thereby and only the unenforceable or invalid obligation will be deemed not to be a part of this\nAgreement.\nD. This Agreement is governed by, and will be construed in accordance with, the laws of the Commonwealth of\nVirginia, without regard to its or any other jurisdiction’s conflict-of-law provisions. Executive agrees that any action\nrelated to or arising out of this Agreement shall be brought exclusively in the United States District Court for the Eastern\nDistrict of Virginia, and Executive hereby irrevocably consents to personal jurisdiction and venue in such court and to\nservice of process by United States Mail or express courier service in any such action.\nE. If any dispute(s) arise(s) between Freddie Mac and Executive with respect to any matter which is the subject of this\nAgreement, the prevailing party in such dispute(s) shall be entitled to recover from the other party all of its costs and\nexpenses, including its reasonable attorneys’ fees.\nExecutive has been advised to discuss all aspects of this Agreement with Executive’s private attorney. Executive\nacknowledges that Executive has carefully read and understands the terms and provisions of this Agreement and\nthat they are reasonable. Executive signs this Agreement voluntarily and accepts all obligations contained in this\nAgreement in exchange for the consideration to be given to Executive as outlined above, which Executive\nacknowledges is adequate and satisfactory, and which Executive further acknowledges Freddie Mac is not\notherwise obligated to provide to Executive. Neither Freddie Mac nor its agents, representatives, Executives,\nofficers or employees have made any representations to Executive concerning the terms or effects of this\nAgreement, other than those contained in this Agreement.\nRestrictive Covenant and Confidentiality Agreement for Peter Federico\nPage6of6\nBy: /s/ Peter J. Federico\nDate: March 17, 2006\nPeter Federico\nBy: /s/ Paul George\nDate: March 24, 2006\nPaul George\nExecutive Vice President – Human Resources
+6a1d8e0071366f59e198d8e5f15f9a9e.pdf	effective_date jurisdiction party term	EX-99.(D)(10) 16 a2220589zex-99_d10.htm EX-99.(D)(10)\nExhibit (d)(10)\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and is effective as of November 18, 2013 (the “Effective Date”),\nby and between Fusion-io, Inc., a Delaware corporation (“Company”), and SanDisk Corporation, a Delaware corporation (“SanDisk,” and each\nalso referred to as “Party” or together as “Parties”).\nIn consideration for the Parties’ agreement to participate in the activities described below, the Parties agree as follows:\n1. Purpose. In connection with a potential or possible business opportunity or transaction between the Parties pursuant to which SanDisk\nwould acquire the Company (collectively, the “Transaction”), Company may find it beneficial to disclose to SanDisk certain information (the\n“Evaluation Material”). Evaluation Material shall include all information disclosed by Company about Company and its subsidiaries and shall\ninclude, but is not limited to, business plans, marketing plans, financial statements, contracts, customer lists, trade secrets, sales information,\nproduct designs and specifications, information about any third party and other materials and information related to Company or its subsidiaries.\n2. Confidential Information. The term “Confidential Information” shall mean Evaluation Material that is furnished by or on behalf of\nCompany to SanDisk or its Representatives, regardless of the manner in which it was furnished, on or after the Effective Date.\nThe confidentiality obligations in Paragraph 3 below shall not apply to the disclosed information that: (a) is already known to or in\npossession of SanDisk on a nonconfidential basis at the time disclosed by Company, provided that such information was not made available to\nSanDisk from a source other than the Company who was, to SanDisk’s knowledge (after commercially reasonable investigation), subject to an\nobligation to Company to keep such information confidential; (b) is or becomes generally available to the public through no breach of this\nAgreement or the Prior NDA; (c) becomes legally available to SanDisk on a nonconfidential basis from a source other than Company who is not,\nto the knowledge of SanDisk (after commercially reasonable investigation), subject to any obligation to Company to keep such information\nconfidential; or (d) is or has been independently developed by SanDisk without reference to or use of the Evaluation Material.\n3. Protection of Confidential Information. For itself and on behalf of its Representatives (as defined below), each of the Parties hereto\nagree to the following:\n(a)\nSanDisk will keep all Confidential Information confidential, and shall not disclose any Confidential Information to any Person\nother than SanDisk’s and its subsidiaries’ officers, directors, agents, employees, controlled affiliates and advisors (including, without limitation,\nfinancial, legal, tax and accounting advisors) (collectively, the “Representatives”) who, in each case, have a reasonable need to know, or have\naccess, in order to evaluate a Transaction and who, in each case, agree that, either as a condition to employment or in order to obtain the\nConfidential Information, to be bound by terms and conditions not less restrictive than those terms and conditions applicable to SanDisk under\nthis Agreement. SanDisk agrees that neither it nor any of its Representatives will, without the prior written consent of the Board of Directors of\nCompany (or any committee thereof), directly or indirectly, enter into any agreement, arrangement or understanding with any other person that\nhas or would have the effect of requiring such person to provide SanDisk or its affiliates with financing or other potential sources of capital on an\nexclusive basis in connection with a transaction involving the Company, or that would have the effect of preventing, impairing or otherwise\nlimiting the ability of any person to provide financing or other potential sources of capital to any other person in connection with a transaction\ninvolving Company.\nIn no event shall SanDisk or any of its Representatives use Confidential Information for any purpose other than in connection with\nits evaluation of a Transaction or the consummation of a Transaction.\nIn addition, without the prior written consent of the other Party, neither Party will, and such Party will cause its Representatives not\nto, disclose to any Person or entity, (a) that the Evaluation Material has been made available to SanDisk or its Representatives, (b) that\ndiscussions are taking place between the Parties concerning a Transaction, or (c) any terms or other facts with respect to any Transaction,\nincluding, without limitation, the status thereof or the identity (by name or identifiable description) of either Party; provided, however, that a\nParty is permitted to disclose such information (i) as required by law, subject to and in accordance with the conditions set forth in\nSection 3(b) below and (ii) to such Party’s Representatives who are actively and directly participating in such Party’s evaluation of the\nTransaction or who otherwise need to know such Confidential Information for the purpose of evaluating the Transaction.\nNeither Party shall communicate any information to the other Party in violation of the proprietary rights of any third party. In no\nevent shall SanDisk use less than the same degree of care to protect the Confidential Information as it would employ with respect to its own\ninformation which SanDisk considers confidential, or less than reasonable care.\nSanDisk shall cause its Representatives to comply with the terms of this Agreement as if such Representative were SanDisk\nhereunder, and SanDisk shall be responsible for any action taken or omissions made by its Representatives that would have been a violation or\nbreach of the terms of this Agreement had such action or omission been taken or made by SanDisk. In this Agreement, “Person” shall be\nbroadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual. Notwithstanding the\nforegoing, Company hereby acknowledges and agrees that where any of SanDisk’s third party advisor Representatives has agreed in a writing\naddressed to Company (and which expressly provides that Company is a third party beneficiary of such written agreement) to be bound by the\nconfidentiality and use provisions contained herein and any other term of this Agreement that is applicable to Representatives, with respect to\nany breach of this Agreement by such third party advisor Representative, the Company shall attempt to recover any monetary damages of\nCompany against such third party advisor Representative for its breach of this Agreement prior to seeking monetary damages against SanDisk\nfor such breach.\n(b) If SanDisk or any Representative of SanDisk is requested to disclose, or faces legal or regulatory action or is subject to legal or\nregulatory proceedings requiring disclosure of Confidential Information (including, without limitation, any rule, regulation or policy statement of\nany national securities exchange, market or automated quotation system on which any of SanDisk’s or Company’s securities are listed or quoted),\nthen, promptly following such request and prior to disclosing any such Confidential Information, SanDisk will provide Company with notice of\nany such request or requirement so that Company may seek a protective order or other appropriate remedy and/or waive compliance with the\nterms of this Agreement and SanDisk shall consult with Company with respect to Company and SanDisk taking steps to, and shall, to the extent\ncommercially reasonably and at the sole expense of Company, take such actions reasonably requested by Company in order to, resist or narrow\nthe scope of such request or legal process. To the extent such protective order or other remedy is not obtained, or Company waives compliance\nwith the terms hereof, if SanDisk or any of its Representatives are nonetheless legally compelled to disclose such information, SanDisk and any\nsuch Representative may disclose only that portion of the Confidential Information which is legally required to comply with the law or such bona\nfide regulatory or legal requirement.\nIf either Party or any of their respective Representative is requested to disclose, or faces legal or regulatory action or is subject to\nlegal or regulatory proceedings requiring disclosure of the information referred to in the third paragraph of Section 3(a) above (including, without\nlimitation, any rule, regulation\n2\nor policy statement of any national securities exchange, market or automated quotation system on which any of SanDisk’s or Company’s\nsecurities are listed or quoted), then, promptly following such request and prior to disclosing any such information, the Party receiving such\nrequest will provide the other Party with notice of any such request or requirement so that such other Party may seek a protective order or other\nappropriate remedy and/or waive compliance with the terms of this Agreement and the Party receiving such request shall consult with the other\nParty with respect to taking steps to, and shall, to the extent commercially reasonably and at the sole expense of such other Party, take such\nactions reasonably requested by the other Party in order to, resist or narrow the scope of such request or legal process. To the extent such\nprotective order or other remedy is not obtained, or either Party waives compliance with the terms hereof, if either Party or any of its\nRepresentatives are nonetheless legally compelled to disclose such information, such Party and its Representative may disclose only that portion\nof the information referred to in the third paragraph of Section 3(a) above which is legally required to comply with the law or such bona fide\nregulatory or legal requirement.\n(c)\nTo the extent that any Confidential Information may include material subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties\nunderstand and agree that they have common legal interests with respect to such matters and it is their desire, intention and mutual understanding\nthat the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information\nprovided by a Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall\nremain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement\nobligates any Party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\n(d)\nNotwithstanding any other provision in this Agreement, including (without limitation) those provisions regarding the use of\nConfidential Information, SanDisk shall be entitled to use (but not disclose) for any purpose, without payment or other compensation to\nCompany, any Residual Knowledge (as subsequently defined), provided that the foregoing is not a license or immunity under any patent rights,\ncopyrights, maskwork rights or trademark rights. The term “Residual Knowledge” means technical knowledge in non-tangible form, which is\nretained in the unaided memory of SanDisk personnel as a result of authorized access to Confidential Information hereunder and who have made\nno effort to use Confidential Information to refresh their recollection in anticipation of or in conjunction with the use of any Residual\nKnowledge.\n4. Return of Confidential Information. All Confidential Information furnished under this Agreement shall remain the property of\nCompany and within ten (10) business days after Company’s written request, except and only to the extent that complying with such request, in\nthe opinion of SanDisk’s legal counsel (which may be internal counsel), would be prohibited by law or regulatory authority, SanDisk will and\nwill cause its Representatives to (a) destroy or return to Company the Confidential Information in the possession or control of SanDisk or its\nRepresentatives that is not electronically stored and SanDisk and its Representatives shall not retain any copy, compilation, summary or other\nderivative work thereof or therefrom, (b) destroy Confidential Information in the possession or control of SanDisk or its Representatives that is\nelectronically-stored and any copy, compilation, summary or other derivative work thereof or therefrom, and (c) certify to Company in writing\nthat SanDisk has fully complied with the provisions of clauses (a) and (b) of this paragraph; provided, however, that SanDisk may retain\nConfidential Information (“Retained Confidential Information”) in order to comply with applicable law, regulation, or SanDisk’s document\nretention policies; provided, however, that (i) Retained Confidential Information shall continue to be subject to the terms of this Agreement\n(including, without limitation, the confidentiality and non-use provisions) so long as such Retained Confidential Information is retained by\nSanDisk, notwithstanding the prior termination or\n3\nexpiration of this Agreement and (ii) SanDisk and its Representatives shall not access such Retained Confidential Information except as required\nin order to comply with applicable law or regulation.\n5. No License or Warranty. Except as expressly set forth in this Agreement or in a separate written agreement signed by the Parties, no\nlicense under any patents, copyrights, mask rights or other proprietary rights is granted or conveyed by Company’s transmittal of Confidential\nInformation or Evaluation Material under this Agreement. The Evaluation Material is provided “as is” and there are no representations or\nwarranties, express or implied, with respect to the information, including but not limited to a warranty against infringement, accuracy or\ncompleteness.\n6.\nStandstill. For a period commencing with the Effective Date and ending on the date that is twelve (12) months following the Effective\nDate, SanDisk shall not, and it shall not cause or permit its Representatives acting on its behalf or in concert with SanDisk to, without the prior\nwritten consent of the Company’s board of directors:\n(a)\nacquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or\nindirect rights to acquire any voting securities of Company or any subsidiary thereof, or any substantial portion of the assets of\nCompany or any subsidiary or division thereof;\n(b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the\nrules of the Securities and Exchange Commission) any voting securities of Company, or seek to advise or influence any Person or\nentity with respect to the voting of any voting securities of Company;\n(c)\nmake any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary\ntransaction involving Company or any of its securities or assets;\n(d) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended, in connection with any of the foregoing;\n(e)\notherwise act or seek to control the management, board of directors or policies of Company;\n(f) take any action that could reasonably be expected to require Company to make a public announcement regarding the possibility of\nany of the events described in clauses (a) through (e) above; or\n(g) subject to the following proviso, request Company or any of its Representatives, directly or indirectly, to amend or waive any\nprovision of this Section 6;\nprovided that, SanDisk shall be permitted (i) to make private, non-public proposals to the chairman of the board or chief executive officer of\nCompany with respect to any type of acquisition or business combination transaction or (ii) to request Company or any of its Representatives,\ndirectly or indirectly, to amend or waive any provision of this Section 6, in each case, so long as SanDisk reasonably believes, based on the\nadvice of SanDisk’s counsel, that neither it nor Company will be required by applicable law, rule or regulation to publicly disclose such\nproposals; provided, further, that SanDisk shall not be responsible for any breach of this Section 6 by its third-party advisor Representatives\nunless any such Representative is acting on behalf of, or in concert with, SanDisk.\nThe provisions of this Section 6 shall be suspended during the pendency of a transaction giving rise to the occurrence of a Significant Event. A\n“Significant Event” shall be deemed to occur (a) if any Person or group (as defined in Section 13(d)(3) of the Exchange Act), other than SanDisk\nor one of its\n4\nRepresentatives or affiliates, shall enter into a definitive agreement with the Company to acquire more than 50% of the voting power of the\noutstanding voting securities of Company or assets of Company or its subsidiaries representing more than 50% of the consolidated earning power\nof Company and its subsidiaries or (b) a tender or exchange offer for more than 50% of the Company’s outstanding voting securities is\ncommenced by any person other than the Company (and remains pending), and within ten (10) business days thereafter the board of directors of\nthe Company has not publicly taken a position rejecting such tender or exchange offer and recommending that the stockholders of the Company\nnot tender any equity securities of the Company into such tender or exchange offer. Notwithstanding the foregoing, all other sections of this\nAgreement shall continue to apply to the Parties.\n7. Non-solicitation. SanDisk agrees that it will not (nor will it permit any of its Representatives on its behalf or acting in concert with\nSanDisk) at any time from the Effective Date until the date that is twelve (12) months following the Effective Date, directly or indirectly, solicit\nfor employment any Subject Employee. For purposes of this Agreement, “Subject Employee” shall mean any employee of the Company or its\nsubsidiaries who hold a title of “Executive Vice President” or above. The restrictions of this paragraph shall not apply to any general\nsolicitations for employment, such as newspaper or internet help wanted advertisement that is not directed to or focused on personnel employed\nby the other party or any of its subsidiaries.\n8. No Inducement or Commitment. Confidential Information provided to SanDisk does not and is not intended to represent an\ninducement or commitment by either Party to engage in any discussions regarding or enter into any business relationship, including, without\nlimitation, the Transaction, with the other Party or with any other entity. If the Parties hereto desire to pursue a Transaction, the Parties will\nexecute a separate written agreement to govern the Transaction.\n9. Equitable Relief. SanDisk acknowledges that a breach of this Agreement by SanDisk may result in immediate and irreparable harm to\nCompany or its subsidiaries, for which there will be no adequate remedy at law, and that Company shall be entitled to equitable relief if SanDisk\nbreaches or threatens to breach any provision of this Agreement and to compel SanDisk to cease and desist all unauthorized use and disclosure of\nConfidential Information or other violations of this Agreement.\n10. Notices. All notices under this Agreement shall be deemed to have been duly given upon (a) the receipt of the notice, when mailed\npostpaid and receipt requested, to the Party entitled to such notice at the address set forth below; (b) by personal delivery, deemed duly given at\nthe time of personal delivery; (c) by overnight courier, deemed duly given upon written verification of receipt; or (d) by facsimile transmission,\ndeemed duly given upon acknowledgment of receipt of electronic transmission.\n11. Term of Agreement. This Agreement shall commence on the Effective Date and shall terminate upon the date that is two (2) years\nfollowing the Effective Date, provided, that, notwithstanding any termination of this Agreement, (i) any breach of this Agreement shall survive\nfor the statute of limitations relating thereto, and (ii) the terms set forth in, and obligations of SanDisk set forth in, Section 4 (and the terms\nhereof referenced therein) with respect to Retained Confidential Information shall survive such termination in accordance with the provisions of\nSection 4.\n12. Assignment and Binding Effect. Without the prior written consent of the other Party hereto, neither Party may assign its rights or\nobligations under this Agreement to any Person. This Agreement shall benefit and be binding upon the Parties to this Agreement and their\nrespective successors and assigns.\n13. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the\nUnited States of America and the state of Delaware exclusive of its choice of law principles. The federal or state courts of Wilmington, Delaware\nshall have exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each Party hereby\n5\nconsents to the jurisdiction and venue of such courts. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO\nTRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n14. No Agreement. The Parties hereto understand and acknowledge that no contract or agreement providing for any Transaction shall be\ndeemed to exist between them unless and until a final definitive agreement has been executed and delivered, and the Parties hereby waive, in\nadvance, any claims (including, without limitation, breach of contract) in connection with a Transaction unless and until the Parties have entered\ninto a final definitive agreement. The Parties also agree that unless and until a final definitive agreement regarding a Transaction has been\nexecuted and delivered, neither Party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of\nthis Agreement, except for the matters specifically agreed to herein.\n15. Securities Laws. Each Party is aware, and will advise its Representatives who are informed of the matters that are the subject of this\nAgreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any Person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other Person when it is\nreasonably foreseeable that such other Person is likely to purchase or sell such securities in reliance upon such information.\n16. Miscellaneous. This Agreement embodies the entire understanding between the Parties regarding the subject matter of this Agreement\nand supersedes any and all other negotiations, correspondence, understandings and agreements between the Parties or their respective\nRepresentatives regarding such subject matter, including, without limitation, that, solely with respect to Evaluation Material being shared in\nconnection with the Transaction after the Effective Date, this Agreement shall supersede that certain Confidential Information Exchange\nAgreement, dated as of September 22, 2010 (the “Prior NDA”), between SanDisk and the Company (provided, that (i) the Prior NDA shall be\nsuperseded solely for purposes of Evaluation Material shared by the Company to SanDisk in connection with the Transaction and (ii) each Party\nshall retain its rights against the other Party for any violation or breach of the Prior NDA) and any “clickthrough” agreement relating to the use\nand disclosure of Confidential Information agreed to by SanDisk or its Representatives in connection with their access to any datasite maintained\nin connection with a Transaction. This Agreement shall not be modified except by a writing duly executed on behalf of the Party against whom\nsuch modification is sought to be enforced. The failure of any Party to require performance by another Party of any provision of this Agreement\nshall in no way constitute a waiver thereof or affect the full right to require such performance at any time thereafter. Should any provisions of\nthis Agreement be found unenforceable, the remainder shall still be in effect. This Agreement has been negotiated by the Parties and the\nlanguage of this Agreement shall not be construed for or against either Party. References to either Party in this Agreement shall include such\nParty’s direct and indirect subsidiaries, it being understood that each Party shall cause its direct and indirect subsidiaries to comply with the terms\nof this Agreement as if it were a Party hereto. Either the original or copies, including, without limitation, facsimile transmissions, of this\nAgreement, may be executed in counterparts, each of which shall be an original as against any Party whose signature appears on such counterpart\nand all of which together shall constitute one and the same instrument.\n[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]\n6\nThe Parties have caused their respective duly authorized representatives to execute and deliver this Agreement as of the Effective Date.\nFUSION-IO, INC.\nSANDISK CORPORATION\nBy: /s/ Shane Robison\nBy: /s/ Sumit Sadana\nName: Shane Robison\nName: Sumit Sadana\nTitle: Chief Executive Officer\nTitle: Executive Vice President and Chief Strategy Officer\n[SIGNATURE PAGE TO NONDISCLOSURE AGREEMENT]\n7	EX-99.(D)(10) 16 a2220589zex-99_d10.htm EX-99.(D)(10)\nExhibit (d)(10)\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and is effective as of November 18, 2013 (the “Effective Date”),\nby and between Fusion-io, Inc., a Delaware corporation (“Company”), and SanDisk Corporation, a Delaware corporation (“SanDisk,” and each\nalso referred to as “Party” or together as “Parties”).\nIn consideration for the Parties’ agreement to participate in the activities described below, the Parties agree as follows:\n1. Purpose. In connection with a potential or possible business opportunity or transaction between the Parties pursuant to which SanDisk\nwould acquire the Company (collectively, the “Transaction”), Company may find it beneficial to disclose to SanDisk certain information (the\n“Evaluation Material”). Evaluation Material shall include all information disclosed by Company about Company and its subsidiaries and shall\ninclude, but is not limited to, business plans, marketing plans, financial statements, contracts, customer lists, trade secrets, sales information,\nproduct designs and specifications, information about any third party and other materials and information related to Company or its subsidiaries.\n2. Confidential Information. The term “Confidential Information” shall mean Evaluation Material that is furnished by or on behalf of\nCompany to SanDisk or its Representatives, regardless of the manner in which it was furnished, on or after the Effective Date.\nThe confidentiality obligations in Paragraph 3 below shall not apply to the disclosed information that: (a) is already known to or in\npossession of SanDisk on a nonconfidential basis at the time disclosed by Company, provided that such information was not made available to\nSanDisk from a source other than the Company who was, to SanDisk’s knowledge (after commercially reasonable investigation), subject to an\nobligation to Company to keep such information confidential; (b) is or becomes generally available to the public through no breach of this\nAgreement or the Prior NDA; (c) becomes legally available to SanDisk on a nonconfidential basis from a source other than Company who is not,\nto the knowledge of SanDisk (after commercially reasonable investigation), subject to any obligation to Company to keep such information\nconfidential; or (d) is or has been independently developed by SanDisk without reference to or use of the Evaluation Material.\n3. Protection of Confidential Information. For itself and on behalf of its Representatives (as defined below), each of the Parties hereto\nagree to the following:\n(a) SanDisk will keep all Confidential Information confidential, and shall not disclose any Confidential Information to any Person\nother than SanDisk’s and its subsidiaries’ officers, directors, agents, employees, controlled affiliates and advisors (including, without limitation,\nfinancial, legal, tax and accounting advisors) (collectively, the “Representatives”) who, in each case, have a reasonable need to know, or have\naccess, in order to evaluate a Transaction and who, in each case, agree that, either as a condition to employment or in order to obtain the\nConfidential Information, to be bound by terms and conditions not less restrictive than those terms and conditions applicable to SanDisk under\nthis Agreement. SanDisk agrees that neither it nor any of its Representatives will, without the prior written consent of the Board of Directors of\nCompany (or any committee thereof), directly or indirectly, enter into any agreement, arrangement or understanding with any other person that\nhas or would have the effect of requiring such person to provide SanDisk or its affiliates with financing or other potential sources of capital on an\nexclusive basis in connection with a transaction involving the Company, or that would have the effect of preventing, impairing or otherwise\nlimiting the ability of any person to provide financing or other potential sources of capital to any other person in connection with a transaction\ninvolving Company.\n \nIn no event shall SanDisk or any of its Representatives use Confidential Information for any purpose other than in connection with\nits evaluation of a Transaction or the consummation of a Transaction.\nIn addition, without the prior written consent of the other Party, neither Party will, and such Party will cause its Representatives not\nto, disclose to any Person or entity, (a) that the Evaluation Material has been made available to SanDisk or its Representatives, (b) that\ndiscussions are taking place between the Parties concerning a Transaction, or (c) any terms or other facts with respect to any Transaction,\nincluding, without limitation, the status thereof or the identity (by name or identifiable description) of either Party; provided, however, that a\nParty is permitted to disclose such information (i) as required by law, subject to and in accordance with the conditions set forth in\nSection 3(b) below and (ii) to such Party’s Representatives who are actively and directly participating in such Party’s evaluation of the\nTransaction or who otherwise need to know such Confidential Information for the purpose of evaluating the Transaction.\nNeither Party shall communicate any information to the other Party in violation of the proprietary rights of any third party. In no\nevent shall SanDisk use less than the same degree of care to protect the Confidential Information as it would employ with respect to its own\ninformation which SanDisk considers confidential, or less than reasonable care.\nSanDisk shall cause its Representatives to comply with the terms of this Agreement as if such Representative were SanDisk\nhereunder, and SanDisk shall be responsible for any action taken or omissions made by its Representatives that would have been a violation or\nbreach of the terms of this Agreement had such action or omission been taken or made by SanDisk. In this Agreement, “Person” shall be\nbroadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual. Notwithstanding the\nforegoing, Company hereby acknowledges and agrees that where any of SanDisk’s third party advisor Representatives has agreed in a writing\naddressed to Company (and which expressly provides that Company is a third party beneficiary of such written agreement) to be bound by the\nconfidentiality and use provisions contained herein and any other term of this Agreement that is applicable to Representatives, with respect to\nany breach of this Agreement by such third party advisor Representative, the Company shall attempt to recover any monetary damages of\nCompany against such third party advisor Representative for its breach of this Agreement prior to seeking monetary damages against SanDisk\nfor such breach.\n(b)  If SanDisk or any Representative of SanDisk is requested to disclose, or faces legal or regulatory action or is subject to legal or\nregulatory proceedings requiring disclosure of Confidential Information (including, without limitation, any rule, regulation or policy statement of\nany national securities exchange, market or automated quotation system on which any of SanDisk’s or Company’s securities are listed or quoted),\nthen, promptly following such request and prior to disclosing any such Confidential Information, SanDisk will provide Company with notice of\nany such request or requirement so that Company may seek a protective order or other appropriate remedy and/or waive compliance with the\nterms of this Agreement and SanDisk shall consult with Company with respect to Company and SanDisk taking steps to, and shall, to the extent\ncommercially reasonably and at the sole expense of Company, take such actions reasonably requested by Company in order to, resist or narrow\nthe scope of such request or legal process. To the extent such protective order or other remedy is not obtained, or Company waives compliance\nwith the terms hereof, if SanDisk or any of its Representatives are nonetheless legally compelled to disclose such information, SanDisk and any\nsuch Representative may disclose only that portion of the Confidential Information which is legally required to comply with the law or such bona\nfide regulatory or legal requirement.\nIf either Party or any of their respective Representative is requested to disclose, or faces legal or regulatory action or is subject to\nlegal or regulatory proceedings requiring disclosure of the information referred to in the third paragraph of Section 3(a) above (including, without\nlimitation, any rule, regulation\n \nor policy statement of any national securities exchange, market or automated quotation system on which any of SanDisk’s or Company’s\nsecurities are listed or quoted), then, promptly following such request and prior to disclosing any such information, the Party receiving such\nrequest will provide the other Party with notice of any such request or requirement so that such other Party may seek a protective order or other\nappropriate remedy and/or waive compliance with the terms of this Agreement and the Party receiving such request shall consult with the other\nParty with respect to taking steps to, and shall, to the extent commercially reasonably and at the sole expense of such other Party, take such\nactions reasonably requested by the other Party in order to, resist or narrow the scope of such request or legal process. To the extent such\nprotective order or other remedy is not obtained, or either Party waives compliance with the terms hereof, if either Party or any of its\nRepresentatives are nonetheless legally compelled to disclose such information, such Party and its Representative may disclose only that portion\nof the information referred to in the third paragraph of Section 3(a) above which is legally required to comply with the law or such bona fide\nregulatory or legal requirement.\n(0 To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties\nunderstand and agree that they have common legal interests with respect to such matters and it is their desire, intention and mutual understanding\nthat the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information\nprovided by a Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall\nremain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement\nobligates any Party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\n(d) Notwithstanding any other provision in this Agreement, including (without limitation) those provisions regarding the use of\nConfidential Information, SanDisk shall be entitled to use (but not disclose) for any purpose, without payment or other compensation to\nCompany, any Residual Knowledge (as subsequently defined), provided that the foregoing is not a license or immunity under any patent rights,\ncopyrights, maskwork rights or trademark rights. The term “Residual Knowledge” means technical knowledge in non-tangible form, which is\nretained in the unaided memory of SanDisk personnel as a result of authorized access to Confidential Information hereunder and who have made\nno effort to use Confidential Information to refresh their recollection in anticipation of or in conjunction with the use of any Residual\nKnowledge.\n4. Return of Confidential Information. All Confidential Information furnished under this Agreement shall remain the property of\nCompany and within ten (10) business days after Company’s written request, except and only to the extent that complying with such request, in\nthe opinion of SanDisk’s legal counsel (which may be internal counsel), would be prohibited by law or regulatory authority, SanDisk will and\nwill cause its Representatives to (a) destroy or return to Company the Confidential Information in the possession or control of SanDisk or its\nRepresentatives that is not electronically stored and SanDisk and its Representatives shall not retain any copy, compilation, summary or other\nderivative work thereof or therefrom, (b) destroy Confidential Information in the possession or control of SanDisk or its Representatives that is\nelectronically-stored and any copy, compilation, summary or other derivative work thereof or therefrom, and (c) certify to Company in writing\nthat SanDisk has fully complied with the provisions of clauses (a) and (b) of this paragraph; provided, however, that SanDisk may retain\nConfidential Information (“Retained Confidential Information™) in order to comply with applicable law, regulation, or SanDisk’s document\nretention policies; provided, however, that (i) Retained Confidential Information shall continue to be subject to the terms of this Agreement\n(including, without limitation, the confidentiality and non-use provisions) so long as such Retained Confidential Information is retained by\nSanDisk, notwithstanding the prior termination or\n \nexpiration of this Agreement and (ii) SanDisk and its Representatives shall not access such Retained Confidential Information except as required\nin order to comply with applicable law or regulation.\n5. No License or Warranty. Except as expressly set forth in this Agreement or in a separate written agreement signed by the Parties, no\nlicense under any patents, copyrights, mask rights or other proprietary rights is granted or conveyed by Company’s transmittal of Confidential\nInformation or Evaluation Material under this Agreement. The Evaluation Material is provided “as is” and there are no representations or\nwarranties, express or implied, with respect to the information, including but not limited to a warranty against infringement, accuracy or\ncompleteness.\n6. Standstill. For a period commencing with the Effective Date and ending on the date that is twelve (12) months following the Effective\nDate, SanDisk shall not, and it shall not cause or permit its Representatives acting on its behalf or in concert with SanDisk to, without the prior\nwritten consent of the Company’s board of directors:\n(a)  acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or\nindirect rights to acquire any voting securities of Company or any subsidiary thereof, or any substantial portion of the assets of\nCompany or any subsidiary or division thereof;\n(b)  make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the\nrules of the Securities and Exchange Commission) any voting securities of Company, or seek to advise or influence any Person or\nentity with respect to the voting of any voting securities of Company;\n(c)  make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary\ntransaction involving Company or any of its securities or assets;\n(d)  form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended, in connection with any of the foregoing;\n(e)  otherwise act or seek to control the management, board of directors or policies of Company;\n(f)  take any action that could reasonably be expected to require Company to make a public announcement regarding the possibility of\nany of the events described in clauses (a) through (e) above; or\n(g)  subject to the following proviso, request Company or any of its Representatives, directly or indirectly, to amend or waive any\nprovision of this Section 6;\nprovided that, SanDisk shall be permitted (i) to make private, non-public proposals to the chairman of the board or chief executive officer of\nCompany with respect to any type of acquisition or business combination transaction or (ii) to request Company or any of its Representatives,\ndirectly or indirectly, to amend or waive any provision of this Section 6, in each case, so long as SanDisk reasonably believes, based on the\nadvice of SanDisk’s counsel, that neither it nor Company will be required by applicable law, rule or regulation to publicly disclose such\nproposals; provided, further, that SanDisk shall not be responsible for any breach of this Section 6 by its third-party advisor Representatives\nunless any such Representative is acting on behalf of, or in concert with, SanDisk.\nThe provisions of this Section 6 shall be suspended during the pendency of a transaction giving rise to the occurrence of a Significant Event. A\n“Significant Event” shall be deemed to occur (a) if any Person or group (as defined in Section 13(d)(3) of the Exchange Act), other than SanDisk\nor one of its\n \nRepresentatives or affiliates, shall enter into a definitive agreement with the Company to acquire more than 50% of the voting power of the\noutstanding voting securities of Company or assets of Company or its subsidiaries representing more than 50% of the consolidated earning power\nof Company and its subsidiaries or (b) a tender or exchange offer for more than 50% of the Company’s outstanding voting securities is\ncommenced by any person other than the Company (and remains pending), and within ten (10) business days thereafter the board of directors of\nthe Company has not publicly taken a position rejecting such tender or exchange offer and recommending that the stockholders of the Company\nnot tender any equity securities of the Company into such tender or exchange offer. Notwithstanding the foregoing, all other sections of this\nAgreement shall continue to apply to the Parties.\n7. Non-solicitation. SanDisk agrees that it will not (nor will it permit any of its Representatives on its behalf or acting in concert with\nSanDisk) at any time from the Effective Date until the date that is twelve (12) months following the Effective Date, directly or indirectly, solicit\nfor employment any Subject Employee. For purposes of this Agreement, “Subject Employee” shall mean any employee of the Company or its\nsubsidiaries who hold a title of “Executive Vice President” or above. The restrictions of this paragraph shall not apply to any general\nsolicitations for employment, such as newspaper or internet help wanted advertisement that is not directed to or focused on personnel employed\nby the other party or any of its subsidiaries.\n8. No Inducement or Commitment. Confidential Information provided to SanDisk does not and is not intended to represent an\ninducement or commitment by either Party to engage in any discussions regarding or enter into any business relationship, including, without\nlimitation, the Transaction, with the other Party or with any other entity. If the Parties hereto desire to pursue a Transaction, the Parties will\nexecute a separate written agreement to govern the Transaction.\n9. Equitable Relief. SanDisk acknowledges that a breach of this Agreement by SanDisk may result in immediate and irreparable harm to\nCompany or its subsidiaries, for which there will be no adequate remedy at law, and that Company shall be entitled to equitable relief if SanDisk\nbreaches or threatens to breach any provision of this Agreement and to compel SanDisk to cease and desist all unauthorized use and disclosure of\nConfidential Information or other violations of this Agreement.\n10. Notices. All notices under this Agreement shall be deemed to have been duly given upon (a) the receipt of the notice, when mailed\npostpaid and receipt requested, to the Party entitled to such notice at the address set forth below; (b) by personal delivery, deemed duly given at\nthe time of personal delivery; (c) by overnight courier, deemed duly given upon written verification of receipt; or (d) by facsimile transmission,\ndeemed duly given upon acknowledgment of receipt of electronic transmission.\n11.  Term of Agreement. This Agreement shall commence on the Effective Date and shall terminate upon the date that is two (2) years\nfollowing the Effective Date, provided, that, notwithstanding any termination of this Agreement, (i) any breach of this Agreement shall survive\nfor the statute of limitations relating thereto, and (ii) the terms set forth in, and obligations of SanDisk set forth in, Section 4 (and the terms\nhereof referenced therein) with respect to Retained Confidential Information shall survive such termination in accordance with the provisions of\nSection 4.\n12.  Assignment and Binding Effect. Without the prior written consent of the other Party hereto, neither Party may assign its rights or\nobligations under this Agreement to any Person. This Agreement shall benefit and be binding upon the Parties to this Agreement and their\nrespective successors and assigns.\n \n13.  Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the\nUnited States of America and the state of Delaware exclusive of its choice of law principles. The federal or state courts of Wilmington, Delaware\nshall have exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each Party hereby\n5\n \nconsents to the jurisdiction and venue of such courts. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO\nTRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n14. No Agreement. The Parties hereto understand and acknowledge that no contract or agreement providing for any Transaction shall be\ndeemed to exist between them unless and until a final definitive agreement has been executed and delivered, and the Parties hereby waive, in\nadvance, any claims (including, without limitation, breach of contract) in connection with a Transaction unless and until the Parties have entered\ninto a final definitive agreement. The Parties also agree that unless and until a final definitive agreement regarding a Transaction has been\nexecuted and delivered, neither Party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of\nthis Agreement, except for the matters specifically agreed to herein.\n15.  Securities Laws. Each Party is aware, and will advise its Representatives who are informed of the matters that are the subject of this\nAgreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any Person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other Person when it is\nreasonably foreseeable that such other Person is likely to purchase or sell such securities in reliance upon such information.\n16.  Miscellaneous. This Agreement embodies the entire understanding between the Parties regarding the subject matter of this Agreement\nand supersedes any and all other negotiations, correspondence, understandings and agreements between the Parties or their respective\nRepresentatives regarding such subject matter, including, without limitation, that, solely with respect to Evaluation Material being shared in\nconnection with the Transaction after the Effective Date, this Agreement shall supersede that certain Confidential Information Exchange\nAgreement, dated as of September 22, 2010 (the “Prior NDA”), between SanDisk and the Company (provided, that (i) the Prior NDA shall be\nsuperseded solely for purposes of Evaluation Material shared by the Company to SanDisk in connection with the Transaction and (ii) each Party\nshall retain its rights against the other Party for any violation or breach of the Prior NDA) and any “clickthrough” agreement relating to the use\nand disclosure of Confidential Information agreed to by SanDisk or its Representatives in connection with their access to any datasite maintained\nin connection with a Transaction. This Agreement shall not be modified except by a writing duly executed on behalf of the Party against whom\nsuch modification is sought to be enforced. The failure of any Party to require performance by another Party of any provision of this Agreement\nshall in no way constitute a waiver thereof or affect the full right to require such performance at any time thereafter. Should any provisions of\nthis Agreement be found unenforceable, the remainder shall still be in effect. This Agreement has been negotiated by the Parties and the\nlanguage of this Agreement shall not be construed for or against either Party. References to either Party in this Agreement shall include such\nParty’s direct and indirect subsidiaries, it being understood that each Party shall cause its direct and indirect subsidiaries to comply with the terms\nof this Agreement as if it were a Party hereto. Either the original or copies, including, without limitation, facsimile transmissions, of this\nAgreement, may be executed in counterparts, each of which shall be an original as against any Party whose signature appears on such counterpart\nand all of which together shall constitute one and the same instrument.\n[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]\n6\n \nThe Parties have caused their respective duly authorized representatives to execute and deliver this Agreement as of the Effective Date.\nFUSION-IO, INC. SANDISK CORPORATION\nBy: /s/ Shane Robison By: /s/ Sumit Sadana\nName: Shane Robison Name: Sumit Sadana\nTitle: Chief Executive Officer Title: Executive Vice President and Chief Strategy Officer\n[SIGNATURE PAGE TO NONDISCLOSURE AGREEMENT]\n7\n	EX-99.(D)(10) 16 a2220589zex-99_d10.htm EX-99.(D)(10)\nExhibit (d)(10)\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (this "Agreement") is entered into and is effective as of November 18, 2013 (the "Effective Date"),\nby and between Fusion-io, Inc., a Delaware corporation ("Company"), and SanDisk Corporation, a Delaware corporation ("SanDisk," and each\nalso referred to as "Party" or together as "Parties").\nIn consideration for the Parties' agreement to participate in the activities described below, the Parties agree as follows:\n1.\nPurpose. In connection with a potential or possible business opportunity or transaction between the Parties pursuant to which SanDisk\nwould acquire the Company (collectively, the "Transaction"), Company may find it beneficial to disclose to SanDisk certain information (the\n"Evaluation Material"). Evaluation Material shall include all information disclosed by Company about Company and its subsidiaries and shall\ninclude, but is not limited to, business plans, marketing plans, financial statements, contracts, customer lists, trade secrets, sales information,\nproduct designs and specifications, information about any third party and other materials and information related to Company or its subsidiaries.\n2.\nConfidential Information. The term "Confidential Information" shall mean Evaluation Material that is furnished by or on behalf of\nCompany to SanDisk or its Representatives, regardless of the manner in which it was furnished, on or after the Effective Date.\nThe confidentiality obligations in Paragraph 3 below shall not apply to the disclosed information that: (a) is already known to or in\npossession of SanDisk on a nonconfidential basis at the time disclosed by Company, provided that such information was not made available to\nSanDisk from a source other than the Company who was, to SanDisk's knowledge (after commercially reasonable investigation), subjec to an\nobligation to Company to keep such information confidential; (b) is or becomes generally available to the public through no breach of this\nAgreement or the Prior NDA; (c) becomes legally available to SanDisk on a nonconfidential basis from a source other than Company who is\nnot,\nto the knowledge of SanDisk (after commercially reasonable investigation), subject to any obligation to Company to keep such information\nconfidential; or (d) is or has been independently developed by SanDisk without reference to or use of the Evaluation Material.\n3.\nProtection of Confidential Information For itself and on behalf of its Representatives (as defined below), each of the Parties hereto\nagree to the following:\n(a)\nSanDisk will keep all Confidentia Information confidential, and shall not disclose any Confidential Information to any Person\nother than SanDisk's and its subsidiaries' officers, directors, agents, employees, controlled affiliates and advisors (including, without limitation,\nfinancial, legal, tax and accounting advisors) (collectively, the "Representatives") who, in each case, have a reasonable need to know, or have\naccess, in order to evaluate a Transaction and who, in each case, agree that, either as a condition to employment or in order to obtain the\nConfidential Information, to be bound by terms and conditions not less restrictive than those terms and conditions applicable to SanDisk under\nthis Agreement. SanDisk agrees that neither it nor any of its Representatives will, without the prior written consent of the Board of Directors\nof\nCompany (or any committee thereof), directly or indirectly, enter into any agreement, arrangement or understanding with any other person that\nhas or would have the effect of requiring such person to provide SanDisk or its affiliates with financing or other potential sources of capital on an\nexclusive basis in connection with a transaction involving the Company, or that would have the effect of preventing, impairing or otherwise\nlimiting the ability of any person to provide financing or other potential sources of capital to any other person in connection with a transaction\ninvolving Company.\nIn no event shall SanDisk or any of its Representatives use Confidential Information for any purpose other than in connection with\nits evaluation of a Transaction or the consummation of a Transaction.\nIn addition, without the prior written consent of the other Party, neither Party will, and such Party will cause its Representatives\nnot\nto, disclose to any Person or entity, (a) that the Evaluation Material has been made available to SanDisk or its Representatives, (b) that\ndiscussions are taking place between the Parties concerning a Transaction, or (c) any terms or other facts with respect to any Transaction,\nincluding, without limitation, the status thereof or the identity (by name or identifiable description) of either Party; provided, however, that a\nParty is permitted to disclose such information (i) as required by law, subject to and in accordance with the conditions set forth in\nSection 3(b) below and (ii) to such Party's Representatives who are actively and directly participating in such Party's evaluation of the\nTransaction or who otherwise need to know such Confidential Information for the purpose of evaluating the Transaction.\nNeither Party shall communicate any information to the other Party in violation of the proprietary rights of any third party. In\nno\nevent shall SanDisk use less than the same degree of care to protect the Confidential Information as it would employ with respect to its own\ninformation which SanDisk considers confidential, or less than reasonable care.\nSanDisk shall cause its Representatives to comply with the terms of this Agreement as if such Representative were SanDisk\nhereunder, and SanDisk shall be responsible for any action taken or omissions made by its Representatives that would have been a violation\nor\nbreach of the terms of this Agreement had such action or omission been taken or made by SanDisk. In this Agreement, "Person" shall be\nbroadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual. Notwithstanding the\nforegoing,\nCompany\nhereby\nacknowledges\nand\nagrees\nthat\nwhere\nany\nof\nSanDisk's\nthird\nparty\nadvisor\nRepresentatives\nhas\nagreed\nin\na\nwriting\naddressed to Company (and which expressly provides that Company is a third party beneficiary of such written agreement) to be bound by the\nconfidentiality and use provisions contained herein and any other term of this Agreement that is applicable to Representatives, with respect\nto\nany breach of this Agreement by such third party advisor Representative, the Company shall attempt to recover any monetary damages\nof\nCompany against such third party advisor Representative for its breach of this Agreement prior to seeking monetary damages against SanDisk\nfor such breach.\n(b)\nIf SanDisk or any Representative of SanDisk is requested to disclose, or faces legal or regulatory action or is subject to legal or\nregulatory proceedings requiring disclosure of Confidential Information (including, without limitation, any rule, regulation or policy statement of\nany national securities exchange, market or automated quotation system on which any of SanDisk's or Company's securities are listed or quoted),\nthen, promptly following such request and prior to disclosing any such Confidential Information, SanDisk will provide Company with notice of\nany such request or requirement so that Company may seek a protective order or other appropriate remedy and/or waive compliance with the\nterms of this Agreement and SanDisk shall consult with Company with respect to Company and SanDisk taking steps to, and shall, to the extent\ncommercially reasonably and at the sole expense of Company, take such actions reasonably requested by Company in order to, resist or narrow\nthe scope of such request or legal process. To the extent such protective order or other remedy is not obtained, or Company waives compliance\nwith\nthe\nterms hereof, if SanDisk or any of its Representatives are nonetheless legally compelled to disclose such information, SanDisk and any\nsuch Representative may disclose only that portion of the Confidential Information which is legally required to comply with the law or such bona\nfide regulatory or legal requirement.\nIf either Party or any of their respective Representative is requested to disclose, or faces legal or regulatory action or is subject to\nlegal or regulatory proceedings requiring disclosure of the information referred to in the third paragraph of Section 3(a) above (including, without\nlimitation, any rule, regulation\n2\nor policy statement of any national securities exchange, market or automated quotation system on which any of SanDisk's or Company's\nsecurities are listed or quoted), then, promptly following such request and prior to disclosing any such information, the Party receiving such\nrequest will provide the other Party with notice of any such request or requirement so that such other Party may seek a protective order or other\nappropriate remedy and/or waive compliance with the terms of this Agreement and the Party receiving such request shall consult with the other\nParty with respect to taking steps to, and shall, to the extent commercially reasonably and at the sole expense of such other Party, take such\nactions reasonably requested by the other Party in order to, resist or narrow the scope of such request or legal process. To the extent\nsuch\nprotective order or other remedy is not obtained, or either Party waives compliance with the terms hereof, if either Party or any of its\nRepresentatives are nonetheless legally compelled to disclose such information, such Party and its Representative may disclose only that portion\nof the information referred to in the third paragraph of Section 3(a) above which is legally required to comply with the law or such bona fide\nregulatory or legal requirement.\n(c)\nTo the extent that any Confidential Information may include material subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties\nunderstand and agree that they have common legal interests with respect to such matters and it is their desire, intention and mutual understanding\nthat\nthe\nsharing\nof\nsuch\nmaterial\nis\nnot\nintended\nto,\nand\nshall\nnot,\nwaive\nor\ndiminish\nin\nany\nway\nthe\nconfidentiality\nof\nsuch\nmaterial\nor\nits\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information\nprovided by a Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall\nremain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement\nobligates any Party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\n(d)\nNotwithstanding any other provision in this Agreement, including (without limitation) those provisions regarding the use of\nConfidential Information, SanDisk shall be entitled to use (but not disclose) for any purpose, without payment or other compensation to\nCompany, any Residual Knowledge (as subsequently defined), provided that the foregoing is not a license or immunity under any patent rights,\ncopyrights, maskwork rights or trademark rights. The term "Residual Knowledge" means technical knowledge in non-tangible form, which is\nretained in the unaided memory of SanDisk personnel as a result of authorized access to Confidential Information hereunder and who have made\nno effort to use Confidential Information to refresh their recollection in anticipation of or in conjunction with the use of any Residual\nKnowledge.\n4.\nReturn of Confidential Information. All Confidential Information furnished under this Agreement shall remain the property of\nCompany and within ten (10) business days after Company's written request, except and only to the extent that complying with such request, in\nthe opinion of SanDisk's legal counsel (which may be internal counsel), would be prohibited by law or regulatory authority, SanDisk will and\nwill\ncause its Representatives to (a) destroy or return to Company the Confidential Information in the possession or control of SanDisk or its\nRepresentatives that is not electronically stored and SanDisk and its Representatives shall not retain any copy, compilation, summary or other\nderivative work thereof or therefrom, (b) destroy Confidential Information in the possession or control of SanDisk or its Representatives that is\nelectronically-stored and any copy, compilation, summary or other derivative work thereof or therefrom, and (c) certify to Company in writing\nthat SanDisk has fully complied with the provisions of clauses (a) and (b) of this paragraph; provided however, that SanDisk may retain\nConfidential Information ("Retained Confidential Information") in order to comply with applicable law, regulation, or SanDisk's document\nretention policies; provided, however, that (i) Retained Confidential Information shall continue to be subject to the terms of this Agreement\n(including, without limitation, the confidentiality and non-use provisions) so long as such Retained Confidential Information is retained by\nSanDisk, notwithstanding the prior termination or\n3\nexpiration of this Agreement and (ii) SanDisk and its Representatives shall not access such Retained Confidential Information except as required\nin order to comply with applicable law or regulation.\n5.\nNo License or Warranty. Except as expressly set forth in this Agreement or in a separate written agreement signed by the Parties, no\nlicense under any patents, copyrights, mask rights or other proprietary rights is granted or conveyed by Company's transmittal of Confidential\nInformation or Evaluation Material under this Agreement. The Evaluation Material is provided "as is" and there are no representations or\nwarranties, express or implied, with respect to the information, including but not limited to a warranty against infringement accuracy or\ncompleteness.\n6.\nStandstill. For a period commencing with the Effective Date and ending on the date that is twelve (12) months following the Effective\nDate, SanDisk shall not, and it shall not cause or permit its Representatives acting on its behalf or in concert with SanDisk to, without the prior\nwritten consent of the Company's board of directors:\n(a)\nacquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or\nindirect rights to acquire any voting securities of Company or any subsidiary thereof, or any substantial portion of the assets of\nCompany or any subsidiary or division thereof;\n(b)\nmake, or in any way participate, directly or indirectly, in any "solicitation" of "proxies" to vote (as such terms are used in the\nrules of the Securities and Exchange Commission) any voting securities of Company, or seek to advise or influence any Person\nor\nentity with respect to the voting of any voting securities of Company;\n(c)\nmake any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary\ntransaction involving Company or any of its securities or assets;\n(d)\nform, join or in any way participate in a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended, in connection with any of the foregoing;\n(e)\notherwise act or seek to control the management, board of directors or policies of Company;\n(f)\ntake any action that could reasonably be expected to require Company to make a public announcement regarding the possibility of\nany of the events described in clauses (a) through (e) above; or\n(g)\nsubject to the following proviso, request Company or any of its Representatives, directly or indirectly, to amend or waive any\nprovision of this Section 6;\nprovided that, SanDisk shall be permitted (i) to make private, non-public proposals to the chairman of the board or chief executive officer of\nCompany with respect to any type of acquisition or business combination transaction or (ii) to request Company or any of its Representatives,\ndirectly or indirectly, to amend or waive any provision of this Section 6, in each case, so long as SanDisk reasonably believes, based on\nthe\nadvice of SanDisk's counsel, that neither it nor Company will be required by applicable law, rule or regulation to publicly disclose such\nproposals; provided, further, that SanDisk shall not be responsible for any breach of this Section 6 by its third-party advisor Representatives\nunless any such Representative is acting on behalf of, or in concert with, SanDisk.\nThe provisions of this Section 6 shall be suspended during the pendency of a transaction giving rise to the occurrence of a Significant Event.\nA\n"Significant Event" shall be deemed to occur (a) if any Person or group (as defined in Section 13(d)(3) of the Exchange Act), other than SanDisk\nor one of its\n4\nRepresentatives or affiliates, shall enter into a definitive agreement with the Company to acquire more than 50% of the voting power of the\noutstanding voting securities of Company or assets of Company or its subsidiaries representing more than 50% of the consolidated earning power\nof Company and its subsidiaries or (b) a tender or exchange offer for more than 50% of the Company's outstanding voting securities is\ncommenced by any person other than the Company (and remains pending), and within ten (10) business days thereafter the board of directors\nof\nthe\nCompany\nhas\nnot\npublicly\ntaken\na\nposition\nrejecting\nsuch\ntender\nor\nexchange\noffer\nand\nrecommending\nthat\nthe\nstockholders\nof\nthe\nCompany\nnot tender any equity securities of the Company into such tender or exchange offer. Notwithstanding the foregoing, all other sections of this\nAgreement shall continue to apply to the Parties.\n7.\nNon-solicitation. SanDisk agrees that it will not (nor will it permit any of its Representatives on its behalf or acting in concert with\nSanDisk) at any time from the Effective Date until the date that is twelve (12) months following the Effective Date, directly or indirectly, solicit\nfor employment any Subject Employee. For purposes of this Agreement, "Subject Employee" shall mean any employee of the Company or its\nsubsidiaries who hold a title of "Executive Vice President" or above. The restrictions of this paragraph shall not apply to any genera\nsolicitations for employment, such as newspaper or internet help wanted advertisement that is not directed to or focused on personnel employed\nby the other party or any of its subsidiaries.\n8.\nNo Inducement or Commitment. Confidential Information provided to SanDisk does not and is not intended to represent an\ninducement or commitment by either Party to engage in any discussions regarding or enter into any business relationship, including, without\nlimitation, the Transaction, with the other Party or with any other entity. If the Parties hereto desire to pursue a Transaction, the Parties will\nexecute a separate written agreement to govern the Transaction.\n9.\nEquitable Relief. SanDisk acknowledges that a breach of this Agreement by SanDisk may result in immediate and irreparable harm to\nCompany or its subsidiaries, for which there will be no adequate remedy at law, and that Company shall be entitled to equitable relief if SanDisk\nbreaches or threatens to breach any provision of this Agreement and to compel SanDisk to cease and desist all unauthorized use and disclosure\nof\nConfidential Information or other violations of this Agreement.\n10. Notices. All notices under this Agreement shall be deemed to have been duly given upon (a) the receipt of the notice, when mailed\npostpaid and receipt requested, to the Party entitled to such notice at the address set forth below; (b) by personal delivery, deemed duly given\nat\nthe\ntime\nof\npersonal\ndelivery;\n(c)\nby\novernight\ncourier,\ndeemed\nduly\ngiven\nupon\nwritten\nverification\nof\nreceipt;\nor\n(d)\nby\nfacsimile\ntransmission,\ndeemed duly given upon acknowledgment of receipt of electronic transmission.\n11. Term of Agreement. This Agreement shall commence on the Effective Date and shall terminate upon the date that is two (2) years\nfollowing the Effective Date, provided, that, notwithstanding any termination of this Agreement, (i) any breach of this Agreement shall survive\nfor the statute of limitations relating thereto, and (ii) the terms set forth in, and obligations of SanDisk set forth in, Section 4 (and the terms\nhereof referenced therein) with respect to Retained Confidential Information shall survive such termination in accordance with the provisions of\nSection 4.\n12.\nAssignment and Binding Effect. Without the prior written consent of the other Party hereto, neither Party may assign its rights or\nobligations under this Agreement to any Person. This Agreement shall benefit and be binding upon the Parties to this Agreement and their\nrespective successors and assigns.\n13. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the\nUnited States of America and the state of Delaware exclusive of its choice of law principles. The federal or state courts of Wilmington, Delaware\nshall have exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each Party hereby\n5\nconsents to the jurisdiction and venue of such courts. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO\nTRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n14.\nNo Agreement. The Parties hereto understand and acknowledge that no contract or agreement providing for any Transaction shal be\ndeemed to exist between them unless and until a final definitive agreement has been executed and delivered, and the Parties hereby waive, in\nadvance, any claims (including, without limitation, breach of contract) in connection with a Transaction unless and until the Parties have\nentered\ninto a final definitive agreement. The Parties also agree that unless and until a final definitive agreement regarding a Transaction has been\nexecuted and delivered, neither Party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue\nof\nthis Agreement, except for the matters specifically agreed to herein.\n15. Securities Laws. Each Party is aware, and will advise its Representatives who are informed of the matters that are the subject of this\nAgreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any Person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other Person when it is\nreasonably foreseeable that such other Person is likely to purchase or sell such securities in reliance upon such information.\n16.\nMiscellaneous. This Agreement embodies the entire understanding between the Parties regarding the subject matter of this Agreement\nand supersedes any and all other negotiations, correspondence, understandings and agreements between the Parties or their respective\nRepresentatives regarding such subject matter, including, without limitation, that, solely with respect to Evaluation Material being shared in\nconnection with the Transaction after the Effective Date, this Agreement shall supersede that certain Confidential Information Exchange\nAgreement, dated as of September 22, 2010 (the "Prior NDA"), between SanDisk and the Company (provided, that (i) the Prior NDA shall be\nsuperseded solely for purposes of Evaluation Material shared by the Company to SanDisk in connection with the Transaction and (ii) each Party\nshall retain its rights against the other Party for any violation or breach of the Prior NDA) and any "clickthrough" agreement relating to the use\nand disclosure of Confidential Information agreed to by SanDisk or its Representatives in connection with their access to any datasite maintained\nin connection with a Transaction. This Agreement shall not be modified except by a writing duly executed on behalf of the Party against whom\nsuch modification is sought to be enforced. The failure of any Party to require performance by another Party of any provision of this Agreement\nshall in no way constitute a waiver thereof or affect the full right to require such performance at any time thereafter. Should any provisions of\nthis Agreement be found unenforceable, the remainder shall still be in effect. This Agreement has been negotiated by the Parties and the\nlanguage of this Agreement shall not be construed for or against either Party. References to either Party in this Agreement shall include such\nParty's direct and indirect subsidiaries, it being understood that each Party shall cause its direct and indirect subsidiaries to comply with the terms\nof this Agreement as if it were a Party hereto. Either the original or copies, including, without limitation, facsimile transmissions, of this\nAgreement, may be executed in counterparts, each of which shall be an original as against any Party whose signature appears on such counterpart\nand all of which together shall constitute one and the same instrument.\n[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]\n6\nThe Parties have caused their respective duly authorized representatives to execute and deliver this Agreement as of the Effective Date.\nFUSION-IO, INC.\nSANDISK CORPORATION\nBy: /s/ Shane Robison\nBy: /s/ Sumit Sadana\nName: Shane Robison\nName: Sumit Sadana\nTitle: Chief Executive Officer\nTitle: Executive Vice President and Chief Strategy Officer\n[SIGNATURE PAGE TO NONDISCLOSURE AGREEMENT]\n7	EX-99.(D)(10) 16 a2220589zex-99_d10.htm EX-99.(D)(10)\nExhibit (d)(10)\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (this “Agreement”) is entered into and is effective as of November 18, 2013 (the “Effective Date”),\nby and between Fusion-io, Inc., a Delaware corporation (“Company”), and SanDisk Corporation, a Delaware corporation (“SanDisk,” and each\nalso referred to as “Party” or together as “Parties”).\nIn consideration for the Parties’ agreement to participate in the activities described below, the Parties agree as follows:\n1. Purpose. In connection with a potential or possible business opportunity or transaction between the Parties pursuant to which SanDisk\nwould acquire the Company (collectively, the “Transaction”), Company may find it beneficial to disclose to SanDisk certain information (the\n“Evaluation Material”). Evaluation Material shall include all information disclosed by Company about Company and its subsidiaries and shall\ninclude, but is not limited to, business plans, marketing plans, financial statements, contracts, customer lists, trade secrets, sales information,\nproduct designs and specifications, information about any third party and other materials and information related to Company or its subsidiaries.\n2. Confidential Information. The term “Confidential Information” shall mean Evaluation Material that is furnished by or on behalf of\nCompany to SanDisk or its Representatives, regardless of the manner in which it was furnished, on or after the Effective Date.\nThe confidentiality obligations in Paragraph 3 below shall not apply to the disclosed information that: (a) is already known to or in\npossession of SanDisk on a nonconfidential basis at the time disclosed by Company, provided that such information was not made available to\nSanDisk from a source other than the Company who was, to SanDisk’s knowledge (after commercially reasonable investigation), subject to an\nobligation to Company to keep such information confidential; (b) is or becomes generally available to the public through no breach of this\nAgreement or the Prior NDA; (c) becomes legally available to SanDisk on a nonconfidential basis from a source other than Company who is not,\nto the knowledge of SanDisk (after commercially reasonable investigation), subject to any obligation to Company to keep such information\nconfidential; or (d) is or has been independently developed by SanDisk without reference to or use of the Evaluation Material.\n3. Protection of Confidential Information. For itself and on behalf of its Representatives (as defined below), each of the Parties hereto\nagree to the following:\n(a)\nSanDisk will keep all Confidential Information confidential, and shall not disclose any Confidential Information to any Person\nother than SanDisk’s and its subsidiaries’ officers, directors, agents, employees, controlled affiliates and advisors (including, without limitation,\nfinancial, legal, tax and accounting advisors) (collectively, the “Representatives”) who, in each case, have a reasonable need to know, or have\naccess, in order to evaluate a Transaction and who, in each case, agree that, either as a condition to employment or in order to obtain the\nConfidential Information, to be bound by terms and conditions not less restrictive than those terms and conditions applicable to SanDisk under\nthis Agreement. SanDisk agrees that neither it nor any of its Representatives will, without the prior written consent of the Board of Directors of\nCompany (or any committee thereof), directly or indirectly, enter into any agreement, arrangement or understanding with any other person that\nhas or would have the effect of requiring such person to provide SanDisk or its affiliates with financing or other potential sources of capital on an\nexclusive basis in connection with a transaction involving the Company, or that would have the effect of preventing, impairing or otherwise\nlimiting the ability of any person to provide financing or other potential sources of capital to any other person in connection with a transaction\ninvolving Company.\nIn no event shall SanDisk or any of its Representatives use Confidential Information for any purpose other than in connection with\nits evaluation of a Transaction or the consummation of a Transaction.\nIn addition, without the prior written consent of the other Party, neither Party will, and such Party will cause its Representatives not\nto, disclose to any Person or entity, (a) that the Evaluation Material has been made available to SanDisk or its Representatives, (b) that\ndiscussions are taking place between the Parties concerning a Transaction, or (c) any terms or other facts with respect to any Transaction,\nincluding, without limitation, the status thereof or the identity (by name or identifiable description) of either Party; provided, however, that a\nParty is permitted to disclose such information (i) as required by law, subject to and in accordance with the conditions set forth in\nSection 3(b) below and (ii) to such Party’s Representatives who are actively and directly participating in such Party’s evaluation of the\nTransaction or who otherwise need to know such Confidential Information for the purpose of evaluating the Transaction.\nNeither Party shall communicate any information to the other Party in violation of the proprietary rights of any third party. In no\nevent shall SanDisk use less than the same degree of care to protect the Confidential Information as it would employ with respect to its own\ninformation which SanDisk considers confidential, or less than reasonable care.\nSanDisk shall cause its Representatives to comply with the terms of this Agreement as if such Representative were SanDisk\nhereunder, and SanDisk shall be responsible for any action taken or omissions made by its Representatives that would have been a violation or\nbreach of the terms of this Agreement had such action or omission been taken or made by SanDisk. In this Agreement, “Person” shall be\nbroadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual. Notwithstanding the\nforegoing, Company hereby acknowledges and agrees that where any of SanDisk’s third party advisor Representatives has agreed in a writing\naddressed to Company (and which expressly provides that Company is a third party beneficiary of such written agreement) to be bound by the\nconfidentiality and use provisions contained herein and any other term of this Agreement that is applicable to Representatives, with respect to\nany breach of this Agreement by such third party advisor Representative, the Company shall attempt to recover any monetary damages of\nCompany against such third party advisor Representative for its breach of this Agreement prior to seeking monetary damages against SanDisk\nfor such breach.\n(b) If SanDisk or any Representative of SanDisk is requested to disclose, or faces legal or regulatory action or is subject to legal or\nregulatory proceedings requiring disclosure of Confidential Information (including, without limitation, any rule, regulation or policy statement of\nany national securities exchange, market or automated quotation system on which any of SanDisk’s or Company’s securities are listed or quoted),\nthen, promptly following such request and prior to disclosing any such Confidential Information, SanDisk will provide Company with notice of\nany such request or requirement so that Company may seek a protective order or other appropriate remedy and/or waive compliance with the\nterms of this Agreement and SanDisk shall consult with Company with respect to Company and SanDisk taking steps to, and shall, to the extent\ncommercially reasonably and at the sole expense of Company, take such actions reasonably requested by Company in order to, resist or narrow\nthe scope of such request or legal process. To the extent such protective order or other remedy is not obtained, or Company waives compliance\nwith the terms hereof, if SanDisk or any of its Representatives are nonetheless legally compelled to disclose such information, SanDisk and any\nsuch Representative may disclose only that portion of the Confidential Information which is legally required to comply with the law or such bona\nfide regulatory or legal requirement.\nIf either Party or any of their respective Representative is requested to disclose, or faces legal or regulatory action or is subject to\nlegal or regulatory proceedings requiring disclosure of the information referred to in the third paragraph of Section 3(a) above (including, without\nlimitation, any rule, regulation\n2\nor policy statement of any national securities exchange, market or automated quotation system on which any of SanDisk’s or Company’s\nsecurities are listed or quoted), then, promptly following such request and prior to disclosing any such information, the Party receiving such\nrequest will provide the other Party with notice of any such request or requirement so that such other Party may seek a protective order or other\nappropriate remedy and/or waive compliance with the terms of this Agreement and the Party receiving such request shall consult with the other\nParty with respect to taking steps to, and shall, to the extent commercially reasonably and at the sole expense of such other Party, take such\nactions reasonably requested by the other Party in order to, resist or narrow the scope of such request or legal process. To the extent such\nprotective order or other remedy is not obtained, or either Party waives compliance with the terms hereof, if either Party or any of its\nRepresentatives are nonetheless legally compelled to disclose such information, such Party and its Representative may disclose only that portion\nof the information referred to in the third paragraph of Section 3(a) above which is legally required to comply with the law or such bona fide\nregulatory or legal requirement.\n(c)\nTo the extent that any Confidential Information may include material subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties\nunderstand and agree that they have common legal interests with respect to such matters and it is their desire, intention and mutual understanding\nthat the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information\nprovided by a Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall\nremain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement\nobligates any Party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\n(d)\nNotwithstanding any other provision in this Agreement, including (without limitation) those provisions regarding the use of\nConfidential Information, SanDisk shall be entitled to use (but not disclose) for any purpose, without payment or other compensation to\nCompany, any Residual Knowledge (as subsequently defined), provided that the foregoing is not a license or immunity under any patent rights,\ncopyrights, maskwork rights or trademark rights. The term “Residual Knowledge” means technical knowledge in non-tangible form, which is\nretained in the unaided memory of SanDisk personnel as a result of authorized access to Confidential Information hereunder and who have made\nno effort to use Confidential Information to refresh their recollection in anticipation of or in conjunction with the use of any Residual\nKnowledge.\n4. Return of Confidential Information. All Confidential Information furnished under this Agreement shall remain the property of\nCompany and within ten (10) business days after Company’s written request, except and only to the extent that complying with such request, in\nthe opinion of SanDisk’s legal counsel (which may be internal counsel), would be prohibited by law or regulatory authority, SanDisk will and\nwill cause its Representatives to (a) destroy or return to Company the Confidential Information in the possession or control of SanDisk or its\nRepresentatives that is not electronically stored and SanDisk and its Representatives shall not retain any copy, compilation, summary or other\nderivative work thereof or therefrom, (b) destroy Confidential Information in the possession or control of SanDisk or its Representatives that is\nelectronically-stored and any copy, compilation, summary or other derivative work thereof or therefrom, and (c) certify to Company in writing\nthat SanDisk has fully complied with the provisions of clauses (a) and (b) of this paragraph; provided, however, that SanDisk may retain\nConfidential Information (“Retained Confidential Information”) in order to comply with applicable law, regulation, or SanDisk’s document\nretention policies; provided, however, that (i) Retained Confidential Information shall continue to be subject to the terms of this Agreement\n(including, without limitation, the confidentiality and non-use provisions) so long as such Retained Confidential Information is retained by\nSanDisk, notwithstanding the prior termination or\n3\nexpiration of this Agreement and (ii) SanDisk and its Representatives shall not access such Retained Confidential Information except as required\nin order to comply with applicable law or regulation.\n5. No License or Warranty. Except as expressly set forth in this Agreement or in a separate written agreement signed by the Parties, no\nlicense under any patents, copyrights, mask rights or other proprietary rights is granted or conveyed by Company’s transmittal of Confidential\nInformation or Evaluation Material under this Agreement. The Evaluation Material is provided “as is” and there are no representations or\nwarranties, express or implied, with respect to the information, including but not limited to a warranty against infringement, accuracy or\ncompleteness.\n6.\nStandstill. For a period commencing with the Effective Date and ending on the date that is twelve (12) months following the Effective\nDate, SanDisk shall not, and it shall not cause or permit its Representatives acting on its behalf or in concert with SanDisk to, without the prior\nwritten consent of the Company’s board of directors:\n(a)\nacquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or\nindirect rights to acquire any voting securities of Company or any subsidiary thereof, or any substantial portion of the assets of\nCompany or any subsidiary or division thereof;\n(b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the\nrules of the Securities and Exchange Commission) any voting securities of Company, or seek to advise or influence any Person or\nentity with respect to the voting of any voting securities of Company;\n(c)\nmake any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary\ntransaction involving Company or any of its securities or assets;\n(d) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended, in connection with any of the foregoing;\n(e)\notherwise act or seek to control the management, board of directors or policies of Company;\n(f) take any action that could reasonably be expected to require Company to make a public announcement regarding the possibility of\nany of the events described in clauses (a) through (e) above; or\n(g) subject to the following proviso, request Company or any of its Representatives, directly or indirectly, to amend or waive any\nprovision of this Section 6;\nprovided that, SanDisk shall be permitted (i) to make private, non-public proposals to the chairman of the board or chief executive officer of\nCompany with respect to any type of acquisition or business combination transaction or (ii) to request Company or any of its Representatives,\ndirectly or indirectly, to amend or waive any provision of this Section 6, in each case, so long as SanDisk reasonably believes, based on the\nadvice of SanDisk’s counsel, that neither it nor Company will be required by applicable law, rule or regulation to publicly disclose such\nproposals; provided, further, that SanDisk shall not be responsible for any breach of this Section 6 by its third-party advisor Representatives\nunless any such Representative is acting on behalf of, or in concert with, SanDisk.\nThe provisions of this Section 6 shall be suspended during the pendency of a transaction giving rise to the occurrence of a Significant Event. A\n“Significant Event” shall be deemed to occur (a) if any Person or group (as defined in Section 13(d)(3) of the Exchange Act), other than SanDisk\nor one of its\n4\nRepresentatives or affiliates, shall enter into a definitive agreement with the Company to acquire more than 50% of the voting power of the\noutstanding voting securities of Company or assets of Company or its subsidiaries representing more than 50% of the consolidated earning power\nof Company and its subsidiaries or (b) a tender or exchange offer for more than 50% of the Company’s outstanding voting securities is\ncommenced by any person other than the Company (and remains pending), and within ten (10) business days thereafter the board of directors of\nthe Company has not publicly taken a position rejecting such tender or exchange offer and recommending that the stockholders of the Company\nnot tender any equity securities of the Company into such tender or exchange offer. Notwithstanding the foregoing, all other sections of this\nAgreement shall continue to apply to the Parties.\n7. Non-solicitation. SanDisk agrees that it will not (nor will it permit any of its Representatives on its behalf or acting in concert with\nSanDisk) at any time from the Effective Date until the date that is twelve (12) months following the Effective Date, directly or indirectly, solicit\nfor employment any Subject Employee. For purposes of this Agreement, “Subject Employee” shall mean any employee of the Company or its\nsubsidiaries who hold a title of “Executive Vice President” or above. The restrictions of this paragraph shall not apply to any general\nsolicitations for employment, such as newspaper or internet help wanted advertisement that is not directed to or focused on personnel employed\nby the other party or any of its subsidiaries.\n8. No Inducement or Commitment. Confidential Information provided to SanDisk does not and is not intended to represent an\ninducement or commitment by either Party to engage in any discussions regarding or enter into any business relationship, including, without\nlimitation, the Transaction, with the other Party or with any other entity. If the Parties hereto desire to pursue a Transaction, the Parties will\nexecute a separate written agreement to govern the Transaction.\n9. Equitable Relief. SanDisk acknowledges that a breach of this Agreement by SanDisk may result in immediate and irreparable harm to\nCompany or its subsidiaries, for which there will be no adequate remedy at law, and that Company shall be entitled to equitable relief if SanDisk\nbreaches or threatens to breach any provision of this Agreement and to compel SanDisk to cease and desist all unauthorized use and disclosure of\nConfidential Information or other violations of this Agreement.\n10. Notices. All notices under this Agreement shall be deemed to have been duly given upon (a) the receipt of the notice, when mailed\npostpaid and receipt requested, to the Party entitled to such notice at the address set forth below; (b) by personal delivery, deemed duly given at\nthe time of personal delivery; (c) by overnight courier, deemed duly given upon written verification of receipt; or (d) by facsimile transmission,\ndeemed duly given upon acknowledgment of receipt of electronic transmission.\n11. Term of Agreement. This Agreement shall commence on the Effective Date and shall terminate upon the date that is two (2) years\nfollowing the Effective Date, provided, that, notwithstanding any termination of this Agreement, (i) any breach of this Agreement shall survive\nfor the statute of limitations relating thereto, and (ii) the terms set forth in, and obligations of SanDisk set forth in, Section 4 (and the terms\nhereof referenced therein) with respect to Retained Confidential Information shall survive such termination in accordance with the provisions of\nSection 4.\n12. Assignment and Binding Effect. Without the prior written consent of the other Party hereto, neither Party may assign its rights or\nobligations under this Agreement to any Person. This Agreement shall benefit and be binding upon the Parties to this Agreement and their\nrespective successors and assigns.\n13. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the\nUnited States of America and the state of Delaware exclusive of its choice of law principles. The federal or state courts of Wilmington, Delaware\nshall have exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each Party hereby\n5\nconsents to the jurisdiction and venue of such courts. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO\nTRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n14. No Agreement. The Parties hereto understand and acknowledge that no contract or agreement providing for any Transaction shall be\ndeemed to exist between them unless and until a final definitive agreement has been executed and delivered, and the Parties hereby waive, in\nadvance, any claims (including, without limitation, breach of contract) in connection with a Transaction unless and until the Parties have entered\ninto a final definitive agreement. The Parties also agree that unless and until a final definitive agreement regarding a Transaction has been\nexecuted and delivered, neither Party will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of\nthis Agreement, except for the matters specifically agreed to herein.\n15. Securities Laws. Each Party is aware, and will advise its Representatives who are informed of the matters that are the subject of this\nAgreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any Person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other Person when it is\nreasonably foreseeable that such other Person is likely to purchase or sell such securities in reliance upon such information.\n16. Miscellaneous. This Agreement embodies the entire understanding between the Parties regarding the subject matter of this Agreement\nand supersedes any and all other negotiations, correspondence, understandings and agreements between the Parties or their respective\nRepresentatives regarding such subject matter, including, without limitation, that, solely with respect to Evaluation Material being shared in\nconnection with the Transaction after the Effective Date, this Agreement shall supersede that certain Confidential Information Exchange\nAgreement, dated as of September 22, 2010 (the “Prior NDA”), between SanDisk and the Company (provided, that (i) the Prior NDA shall be\nsuperseded solely for purposes of Evaluation Material shared by the Company to SanDisk in connection with the Transaction and (ii) each Party\nshall retain its rights against the other Party for any violation or breach of the Prior NDA) and any “clickthrough” agreement relating to the use\nand disclosure of Confidential Information agreed to by SanDisk or its Representatives in connection with their access to any datasite maintained\nin connection with a Transaction. This Agreement shall not be modified except by a writing duly executed on behalf of the Party against whom\nsuch modification is sought to be enforced. The failure of any Party to require performance by another Party of any provision of this Agreement\nshall in no way constitute a waiver thereof or affect the full right to require such performance at any time thereafter. Should any provisions of\nthis Agreement be found unenforceable, the remainder shall still be in effect. This Agreement has been negotiated by the Parties and the\nlanguage of this Agreement shall not be construed for or against either Party. References to either Party in this Agreement shall include such\nParty’s direct and indirect subsidiaries, it being understood that each Party shall cause its direct and indirect subsidiaries to comply with the terms\nof this Agreement as if it were a Party hereto. Either the original or copies, including, without limitation, facsimile transmissions, of this\nAgreement, may be executed in counterparts, each of which shall be an original as against any Party whose signature appears on such counterpart\nand all of which together shall constitute one and the same instrument.\n[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]\n6\nThe Parties have caused their respective duly authorized representatives to execute and deliver this Agreement as of the Effective Date.\nFUSION-IO, INC.\nSANDISK CORPORATION\nBy: /s/ Shane Robison\nBy: /s/ Sumit Sadana\nName: Shane Robison\nName: Sumit Sadana\nTitle: Chief Executive Officer\nTitle: Executive Vice President and Chief Strategy Officer\n[SIGNATURE PAGE TO NONDISCLOSURE AGREEMENT]\n7
+6bf5ad14a39723341b1baea170405bf9.pdf	effective_date jurisdiction party term	EX-99.(E)(4) 3 dex99e4.htm CONFIDENTIALITY LETTER AGREEMENT FROM THE COMPANY TO THE\nPARENT\nExhibit (e)(4)\nTODD SHIPYARDS CORPORATION\n1801 – 16 Ave. SW\nSeattle, WA 99134\nJune 8, 2010\nVigor Industrial, LLC\nAttention: Frank Foti\n5555 N. Channel Avenue\nPortland, Oregon 97217\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction (the “Transaction”) with Todd Shipyards Corporation, a Delaware corporation\nand/or its subsidiary corporations (collectively, the “Company”) pursuant to which you or your Affiliate (as defined herein) may acquire some or all\nof the equity or assets of the Company, the Company is prepared to provide to you reasonable access to and records relating to properties owned,\nleased, or operated by the Company; and certain other information concerning the past, current or prospective business, operations, assets and\nliabilities of the Company, certain of which information is either non-public, confidential or proprietary in nature. For purposes of this letter\nagreement, the term “Affiliate” shall mean any corporation, company or other business entity directly or indirectly controlling you or under your\ncontrol. The term “control” means (i) direct or indirect beneficial ownership of greater than fifty percent (50%) of the voting securities or greater\nthan fifty percent (50%) interest in the income of such corporation, company, or other business entity or (ii) the actual present capacity to elect a\nmajority of the directors of such corporation, company, or other business entity.\nAs a condition to such information concerning the business, operations, assets and liabilities of the Company being furnished to you, your\nAffiliate and/or your Representatives (as defined below) you and your Affiliate agree to treat any information concerning the Company (whether\nprepared by the Company, its advisors, or otherwise, and irrespective of whether furnished orally or in writing or gathered by inspection, and\nregardless of whether specifically identified as “confidential” or “privileged” or both) which is or was furnished to you, your Affiliate or your\nRepresentatives before or after the date of this letter agreement by or on behalf of the Company (herein collectively referred to as the “Evaluation\nMaterial”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions hereinafter set forth.\nAs used in this letter agreement, the term “Representatives” means the directors, officers, partners, employees, representatives, financial, legal,\naccounting and other advisors, affiliates and associates (as those terms are defined in Rule 12b-2 under the Securities Exchange Act of 1934) and\nagents of you or the Company, as the case may be. The term “person” as used in this Agreement shall be broadly interpreted to include without\nlimitation the media and any corporation, partnership, group, individual or other entity.\n1\nth\nThe term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents\nprepared by you, your Affiliate and/or your Representatives which contain, reflect or are based upon, in whole or in part, the information furnished\nto you, your Affiliate or your Representatives pursuant hereto. The term “Evaluation Material” does not include information which (i) is or becomes\ngenerally available to the public other than as a result of a disclosure by you, your Affiliate or your Representatives; or (ii) becomes available to you\non a non-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not known by you to be\nbound by a confidentiality agreement with or other contractual obligation of confidentiality to the Company or any other party with respect to such\ninformation; (iii) was already in your possession or the possession of your Affiliate or Representatives free of any restriction as to its use or\ndisclosure; or (iv) was independently developed by you or your Affiliate or Representatives without using or referring to the Evaluation Material.\nYou hereby agree that you, your Affiliate and your Representatives shall use the Evaluation Material solely for the purpose of evaluating the\nTransaction, that the Evaluation Material will be kept confidential, and that you, your Affiliate and your Representatives will not disclose any of the\nEvaluation Material in any manner whatsoever; provided, however, that: (i) you may make any disclosure of such information to which the\nCompany gives its prior written consent, and (ii) any of such information may be disclosed to your Affiliate or Representatives who need to know\nsuch information for the sole purpose of evaluating the Transaction, who agree to keep such information confidential, and who are provided with a\ncopy of this letter agreement and agree to be bound by the confidentiality terms hereof. In any event, you shall be responsible for any breach of this\nletter agreement by any of your Affiliates or Representatives and you agree to, at your sole expense, take all reasonable measures (including but not\nlimited to court proceedings) to restrain your Affiliate and/or Representatives from prohibited or unauthorized disclosure or use of the Evaluation\nMaterial.\nIn the event you wish to provide any Evaluation Material to potential sources of debt or equity, you must seek our prior written consent to do\nso. The Company will respond promptly and will not unreasonably withhold such approval. In the event the Company consents to such disclosure,\nthe recipients of Evaluation Material pursuant to such consent will be required to sign a confidentiality agreement in substantially the form of this\nAgreement prior to any such disclosure. Any such recipient of Evaluation Material will be deemed one of your Representatives for purposes of this\nAgreement.\nWithout the prior written consent of the other party, neither you nor the Company, nor the Representatives of either party shall disclose to any\nother person the fact that: (i) the Evaluation Material has been made available to you or that you have inspected any portion of the Evaluation\nMaterial; (ii) that this letter agreement had been entered into; and/or (iii) that discussion or negotiations are taking place with you concerning the\nTransaction, or any of the terms, conditions or other facts with respect thereto (except as otherwise required by applicable law, regulation, legal\nprocess or pursuant to applicable requirements of any listing agreement with or the rules of any securities exchange or similar regulatory body).\nWithout the written consent of the Company, you shall not contact (except in the normal and ordinary course of business unrelated to a possible\nTransaction) or discuss the possibility of a Transaction with any employee or director of the Company or its subsidiary corporations, other than\nStephen G. Welch, the President and CEO of the Company, Patrick Hodgson, Chairman of the Board, and Joseph D. Lehrer, a member of the Board\nof the Company.\n2\nIn the event that you, your Affiliate or any of your Representatives are requested or required (by law, regulation, process, the rules of a\nrecognized stock exchange, oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand or other similar process) to disclose any of the Evaluation Material, you, or such Affiliate or Representative, as the case may be, shall\nprovide the Company with prompt written notice of any such request or requirement so that the Company may seek a protective order or other\nappropriate remedy and/or waive your, or such Affiliate or Representative’s compliance with the provisions of this letter agreement. Notwithstanding\nany other provision of this letter agreement, if, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you,\nyour Affiliate or any of your Representatives are nonetheless, in the written opinion of your outside counsel, legally compelled to disclose\nEvaluation Material or else stand liable for contempt or suffer other censure or penalty, you, your Affiliate or your Representatives may, without\nliability under this letter agreement, disclose only that portion of the Evaluation Material which such counsel advises you, your Affiliate or your\nRepresentative that is legally required to be disclosed, provided that you, your Affiliate and/or your Representative exercise commercially reasonable\nefforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by cooperating with the Company to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material by such tribunal.\nIf either you or the Company decides that it does not wish to proceed with the Transaction, such party will promptly inform the other party of\nthat decision. In that case, or at any time upon the request of the Company for any reason, you will as soon as reasonably practicable deliver to the\nCompany all Evaluation Material (and all copies thereof) furnished to you, your Affiliate and/or your Representatives by or on behalf of the\nCompany pursuant hereto or at your option destroy such Evaluation Material. In the event of such a decision or request, all other Evaluation Material\nprepared by you, your Affiliate and/or your Representatives shall be destroyed and no copy thereof shall be retained except as otherwise permitted\nby this paragraph. All Evaluation Material in electronic or digital form shall be deleted in a manner that generally will not allow further access by\nyou, your Affiliates or Representatives except as otherwise permitted by this paragraph. Such destruction of Evaluation Material shall be certified in\nwriting to the Company by your Chief Executive Officer. Notwithstanding the return or destruction of the Evaluation Material, you, your Affiliate\nand your Representatives will continue to be bound by your obligations of confidentiality and other obligations under this letter agreement.\nEvaluation Materials prepared by your attorney and kept only in your attorney’s file may be retained in accordance with your attorney’s firm\nretention requirements.\n3\nYou understand and acknowledge that the Company is providing the Evaluation Material in good faith but that neither the Company, nor any\nof its affiliates or representatives (including, without limitation any of the Company’s directors, officers, employees, or agents) make any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that neither the Company\nnor any of its affiliates or representatives (including, without limitation any of Company’s directors, officers, employees, or agents) shall have any\nliability to you, your Affiliate or to any of your Representatives relating to or resulting from the use of the Evaluation Material or any errors therein\nor omissions therefrom. Only those representations or warranties which are made to you, your Affiliate or your Representatives in a final definitive\nagreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have\nany legal effect, and you agree that if you, your Affiliate or your Representatives determine to engage in the Transaction, such determination will be\nbased solely on the terms of such written agreement and on your own investigation, analysis and assessment of the business to be acquired.\nYou hereby acknowledge that you are aware (and that your Affiliate and/or Representatives who are apprised of this matter have been or will\nbe advised) that the United States securities laws restrict persons with material, non-public information about a company obtained directly or\nindirectly from that company from acquiring or disposing securities of such company or from otherwise engaging in any transaction involving the\ncapital stock of such company, including privately negotiated or open market purchases and sales of such stock, or from communicating such\ninformation to any other person under circumstances in which it is reasonable that such person is likely to purchase or sell such securities.\nAccordingly, you agree that you and your Affiliates will refrain from trading in the securities of the Company at any time you are in possession of\nmaterial, non-public information pertaining thereto. Without limiting the foregoing, neither you nor your Affiliates or Representatives may purchase\nany securities of the Company for a period of three (3) months following the receipt of any Evaluation Material, and for a period of one (1) year\nfollowing the date of this agreement, you and your Affiliates, or any group (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended) in which you or your Affiliate is a member, shall not make a tender offer for securities of the Company and shall not participate in the\nsolicitation of proxies to vote at any meeting of the shareholders of that Company.\nFor a period of two (2) years from the date hereof, neither you, your Affiliate will, without the prior written consent of the Company, (i) either\ndirectly or indirectly solicit or cause to be solicited the employment of or hire any person who is now and within [6] months of such time is an\nofficer of the Company or any of its subsidiary corporations or any person who serves in any management or supervisory position with the\nCompany; provided, however, that general solicitations of employment including through advertisements in trade publications and the use of search\nagencies not directed at such officers or management or supervisory employees and the hiring of any person so identified shall not be a breach of this\nprovision; or (ii) initiate or cause to be initiated any communications other than in the ordinary course of business and not for the purpose of learning\ninformation that will be used in considering the Transaction with any person known by you to be a customer, supplier, client, account or employee of\nthe Company concerning the Evaluation Material or the Transaction.\n4\nIt is further understood and agreed that money damages may not be a sufficient remedy for any breach of this letter agreement by you, your\nAffiliate or any of your Representatives and that the Company may be entitled to seek equitable relief, including injunction and specific\nperformance, as a remedy for any such breach, and you further agree to waive any requirement for the securing or posting of any bond by the\nCompany in connection with such remedy for a breach of this letter agreement by you, your Affiliate or any of your Representatives. Such remedies\nshall not be deemed to be the exclusive remedies for a breach by you, your Affiliate and/or your Representatives of this letter agreement, but shall be\nin addition to all other remedies available at law or equity to the Company. You hereby agree to indemnify, defend and hold the Company and its\nrepresentatives harmless against all losses, claims, damages, liabilities, costs and expenses (including reasonable attorney’s fees and the cost of\nenforcing this indemnity) arising out of or resulting from the Company’s enforcement of its rights under this letter agreement to the extent that you,\nyour Affiliates or your Representatives have violated the terms of this letter agreement.\nIt is understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor privilege hereunder.\nIn the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines that you, your Affiliate or any of your\nRepresentatives have breached this letter agreement, then you shall be liable and pay to the Company the reasonable legal fees incurred by the\nCompany in connection with such litigation, including any appeal therefrom. Similarly, if the court determines you, your Affiliate and your\nRepresentatives have not breached this letter agreement, then the Company shall be liable and pay your reasonable legal fees incurred in connection\nwith such litigation, including any appeal therefrom.\nThis letter agreement shall be governed by and construed in accordance with the laws of the State of Washington, without giving effect to\nprinciples of conflict of laws thereof. You hereby agree and consent to personal jurisdiction and service and venue in any federal or state court within\nthe State of Washington having subject matter jurisdiction, for the purpose of any action, suit, or proceeding arising out of or relating to this letter\nagreement. The invalidity or unenforceability of any provision of this letter agreement shall not affect the validity or enforceability of any other\nprovisions of this letter agreement, which shall remain in full force and effect. The provisions set forth in this letter agreement may be modified or\nwaived only by a separate writing signed by the Company and you, as applicable, expressly so modifying or waiving such agreements.\nThe parties agree that no contract or agreement relating to the Transaction shall be deemed to exist as of the date of this letter agreement, and\nneither you nor the Company shall have any legal obligation of any kind whatsoever with respect to the Transaction (including by virtue of this letter\nagreement), unless and until a definitive agreement has been executed and delivered by you and the Company.\n5\nThis letter agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which\ntogether shall be deemed one and the same agreement.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company with respect to the subject matter hereof.\n*\n*\n*\n*\n*\nVery truly yours,\nTODD SHIPYARDS CORPORATION\nBy: /s/ Stephen G. Welch\nName: Stephen G. Welch\nTitle: President\nTHE PROVISIONS OF THE FOREGOING\nLETTER ARE AGREED TO AND ACKNOWLEDGED\nBY THE UNDERSIGNED:\nVIGOR INDUSTRIAL, LLC\nBy: /s/ Frank Foti\nName: Frank Foti\nTitle: President\n6	EX-99.(E)(4) 3 dex99e4.htm CONFIDENTIALITY LETTER AGREEMENT FROM THE COMPANY TO THE\nPARENT\nExhibit (e)(4)\nTODD SHIPYARDS CORPORATION\n1801 — 16t Ave. SW\nSeattle, WA 99134\nJune 8, 2010\nVigor Industrial, LLC\nAttention: Frank Foti\n5555 N. Channel Avenue\nPortland, Oregon 97217\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction (the “Transaction”) with Todd Shipyards Corporation, a Delaware corporation\nand/or its subsidiary corporations (collectively, the “Company”) pursuant to which you or your Affiliate (as defined herein) may acquire some or all\nof the equity or assets of the Company, the Company is prepared to provide to you reasonable access to and records relating to properties owned,\nleased, or operated by the Company; and certain other information concerning the past, current or prospective business, operations, assets and\nliabilities of the Company, certain of which information is either non-public, confidential or proprietary in nature. For purposes of this letter\nagreement, the term “Affiliate” shall mean any corporation, company or other business entity directly or indirectly controlling you or under your\ncontrol. The term “control” means (i) direct or indirect beneficial ownership of greater than fifty percent (50%) of the voting securities or greater\nthan fifty percent (50%) interest in the income of such corporation, company, or other business entity or (ii) the actual present capacity to elect a\nmajority of the directors of such corporation, company, or other business entity.\nAs a condition to such information concerning the business, operations, assets and liabilities of the Company being furnished to you, your\nAffiliate and/or your Representatives (as defined below) you and your Affiliate agree to treat any information concerning the Company (whether\nprepared by the Company, its advisors, or otherwise, and irrespective of whether furnished orally or in writing or gathered by inspection, and\nregardless of whether specifically identified as “confidential” or “privileged” or both) which is or was furnished to you, your Affiliate or your\nRepresentatives before or after the date of this letter agreement by or on behalf of the Company (herein collectively referred to as the “Evaluation\nMaterial”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions hereinafter set forth.\nAs used in this letter agreement, the term “Representatives” means the directors, officers, partners, employees, representatives, financial, legal,\naccounting and other advisors, affiliates and associates (as those terms are defined in Rule 12b-2 under the Securities Exchange Act of 1934) and\nagents of you or the Company, as the case may be. The term “person” as used in this Agreement shall be broadly interpreted to include without\nlimitation the media and any corporation, partnership, group, individual or other entity.\n \n1\nThe term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents\nprepared by you, your Affiliate and/or your Representatives which contain, reflect or are based upon, in whole or in part, the information furnished\nto you, your Affiliate or your Representatives pursuant hereto. The term “Evaluation Material” does not include information which (i) is or becomes\ngenerally available to the public other than as a result of a disclosure by you, your Affiliate or your Representatives; or (ii) becomes available to you\non a non-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not known by you to be\nbound by a confidentiality agreement with or other contractual obligation of confidentiality to the Company or any other party with respect to such\ninformation; (iii) was already in your possession or the possession of your Affiliate or Representatives free of any restriction as to its use or\ndisclosure; or (iv) was independently developed by you or your Affiliate or Representatives without using or referring to the Evaluation Material.\nYou hereby agree that you, your Affiliate and your Representatives shall use the Evaluation Material solely for the purpose of evaluating the\nTransaction, that the Evaluation Material will be kept confidential, and that you, your Affiliate and your Representatives will not disclose any of the\nEvaluation Material in any manner whatsoever; provided, however, that: (i) you may make any disclosure of such information to which the\nCompany gives its prior written consent, and (ii) any of such information may be disclosed to your Affiliate or Representatives who need to know\nsuch information for the sole purpose of evaluating the Transaction, who agree to keep such information confidential, and who are provided with a\ncopy of this letter agreement and agree to be bound by the confidentiality terms hereof. In any event, you shall be responsible for any breach of this\nletter agreement by any of your Affiliates or Representatives and you agree to, at your sole expense, take all reasonable measures (including but not\nlimited to court proceedings) to restrain your Affiliate and/or Representatives from prohibited or unauthorized disclosure or use of the Evaluation\nMaterial.\n \n \nIn the event you wish to provide any Evaluation Material to potential sources of debt or equity, you must seek our prior written consent to do\nso. The Company will respond promptly and will not unreasonably withhold such approval. In the event the Company consents to such disclosure,\nthe recipients of Evaluation Material pursuant to such consent will be required to sign a confidentiality agreement in substantially the form of this\nAgreement prior to any such disclosure. Any such recipient of Evaluation Material will be deemed one of your Representatives for purposes of this\nAgreement.\nWithout the prior written consent of the other party, neither you nor the Company, nor the Representatives of either party shall disclose to any\nother person the fact that: (i) the Evaluation Material has been made available to you or that you have inspected any portion of the Evaluation\nMaterial; (ii) that this letter agreement had been entered into; and/or (iii) that discussion or negotiations are taking place with you concerning the\nTransaction, or any of the terms, conditions or other facts with respect thereto (except as otherwise required by applicable law, regulation, legal\nprocess or pursuant to applicable requirements of any listing agreement with or the rules of any securities exchange or similar regulatory body).\nWithout the written consent of the Company, you shall not contact (except in the normal and ordinary course of business unrelated to a possible\nTransaction) or discuss the possibility of a Transaction with any employee or director of the Company or its subsidiary corporations, other than\nStephen G. Welch, the President and CEO of the Company, Patrick Hodgson, Chairman of the Board, and Joseph D. Lehrer, a member of the Board\nof the Company.\nIn the event that you, your Affiliate or any of your Representatives are requested or required (by law, regulation, process, the rules of a\nrecognized stock exchange, oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand or other similar process) to disclose any of the Evaluation Material, you, or such Affiliate or Representative, as the case may be, shall\nprovide the Company with prompt written notice of any such request or requirement so that the Company may seek a protective order or other\nappropriate remedy and/or waive your, or such Affiliate or Representative’s compliance with the provisions of this letter agreement. Notwithstanding\nany other provision of this letter agreement, if, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you,\nyour Affiliate or any of your Representatives are nonetheless, in the written opinion of your outside counsel, legally compelled to disclose\nEvaluation Material or else stand liable for contempt or suffer other censure or penalty, you, your Affiliate or your Representatives may, without\nliability under this letter agreement, disclose only that portion of the Evaluation Material which such counsel advises you, your Affiliate or your\nRepresentative that is legally required to be disclosed, provided that you, your Affiliate and/or your Representative exercise commercially reasonable\nefforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by cooperating with the Company to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material by such tribunal.\nIf either you or the Company decides that it does not wish to proceed with the Transaction, such party will promptly inform the other party of\nthat decision. In that case, or at any time upon the request of the Company for any reason, you will as soon as reasonably practicable deliver to the\nCompany all Evaluation Material (and all copies thereof) furnished to you, your Affiliate and/or your Representatives by or on behalf of the\nCompany pursuant hereto or at your option destroy such Evaluation Material. In the event of such a decision or request, all other Evaluation Material\nprepared by you, your Affiliate and/or your Representatives shall be destroyed and no copy thereof shall be retained except as otherwise permitted\nby this paragraph. All Evaluation Material in electronic or digital form shall be deleted in a manner that generally will not allow further access by\nyou, your Affiliates or Representatives except as otherwise permitted by this paragraph. Such destruction of Evaluation Material shall be certified in\nwriting to the Company by your Chief Executive Officer. Notwithstanding the return or destruction of the Evaluation Material, you, your Affiliate\nand your Representatives will continue to be bound by your obligations of confidentiality and other obligations under this letter agreement.\nEvaluation Materials prepared by your attorney and kept only in your attorney’s file may be retained in accordance with your attorney’s firm\nretention requirements.\nYou understand and acknowledge that the Company is providing the Evaluation Material in good faith but that neither the Company, nor any\nof its affiliates or representatives (including, without limitation any of the Company’s directors, officers, employees, or agents) make any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that neither the Company\nnor any of its affiliates or representatives (including, without limitation any of Company’s directors, officers, employees, or agents) shall have any\nliability to you, your Affiliate or to any of your Representatives relating to or resulting from the use of the Evaluation Material or any errors therein\nor omissions therefrom. Only those representations or warranties which are made to you, your Affiliate or your Representatives in a final definitive\nagreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have\nany legal effect, and you agree that if you, your Affiliate or your Representatives determine to engage in the Transaction, such determination will be\nbased solely on the terms of such written agreement and on your own investigation, analysis and assessment of the business to be acquired.\nYou hereby acknowledge that you are aware (and that your Affiliate and/or Representatives who are apprised of this matter have been or will\nbe advised) that the United States securities laws restrict persons with material, non-public information about a company obtained directly or\nindirectly from that company from acquiring or disposing securities of such company or from otherwise engaging in any transaction involving the\ncapital stock of such company, including privately negotiated or open market purchases and sales of such stock, or from communicating such\ninformation to any other person under circumstances in which it is reasonable that such person is likely to purchase or sell such securities.\nAccordingly, you agree that you and your Affiliates will refrain from trading in the securities of the Company at any time you are in possession of\nmaterial, non-public information pertaining thereto. Without limiting the foregoing, neither you nor your Affiliates or Representatives may purchase\nany securities of the Company for a period of three (3) months following the receipt of any Evaluation Material, and for a period of one (1) year\nfollowing the date of this agreement, you and your Affiliates, or any group (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended) in which you or your Affiliate is a member, shall not make a tender offer for securities of the Company and shall not participate in the\nsolicitation of proxies to vote at any meeting of the shareholders of that Company.\nFor a period of two (2) years from the date hereof, neither you, your Affiliate will, without the prior written consent of the Company, (i) either\ndirectly or indirectly solicit or cause to be solicited the employment of or hire any person who is now and within [6] months of such time is an\nofficer of the Company or any of its subsidiary corporations or any person who serves in any management or supervisory position with the\nCompany; provided, however, that general solicitations of employment including through advertisements in trade publications and the use of search\nagencies not directed at such officers or management or supervisory employees and the hiring of any person so identified shall not be a breach of this\nprovision; or (ii) initiate or cause to be initiated any communications other than in the ordinary course of business and not for the purpose of learning\ninformation that will be used in considering the Transaction with any person known by you to be a customer, supplier, client, account or employee of\nthe Company concerning the Evaluation Material or the Transaction.\nIt is further understood and agreed that money damages may not be a sufficient remedy for any breach of this letter agreement by you, your\nAffiliate or any of your Representatives and that the Company may be entitled to seek equitable relief, including injunction and specific\nperformance, as a remedy for any such breach, and you further agree to waive any requirement for the securing or posting of any bond by the\nCompany in connection with such remedy for a breach of this letter agreement by you, your Affiliate or any of your Representatives. Such remedies\nshall not be deemed to be the exclusive remedies for a breach by you, your Affiliate and/or your Representatives of this letter agreement, but shall be\nin addition to all other remedies available at law or equity to the Company. You hereby agree to indemnify, defend and hold the Company and its\nrepresentatives harmless against all losses, claims, damages, liabilities, costs and expenses (including reasonable attorney’s fees and the cost of\nenforcing this indemnity) arising out of or resulting from the Company’s enforcement of its rights under this letter agreement to the extent that you,\nyour Affiliates or your Representatives have violated the terms of this letter agreement.\nIt is understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor privilege hereunder.\nIn the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines that you, your Affiliate or any of your\nRepresentatives have breached this letter agreement, then you shall be liable and pay to the Company the reasonable legal fees incurred by the\nCompany in connection with such litigation, including any appeal therefrom. Similarly, if the court determines you, your Affiliate and your\nRepresentatives have not breached this letter agreement, then the Company shall be liable and pay your reasonable legal fees incurred in connection\nwith such litigation, including any appeal therefrom.\nThis letter agreement shall be governed by and construed in accordance with the laws of the State of Washington, without giving effect to\nprinciples of conflict of laws thereof. You hereby agree and consent to personal jurisdiction and service and venue in any federal or state court within\nthe State of Washington having subject matter jurisdiction, for the purpose of any action, suit, or proceeding arising out of or relating to this letter\nagreement. The invalidity or unenforceability of any provision of this letter agreement shall not affect the validity or enforceability of any other\nprovisions of this letter agreement, which shall remain in full force and effect. The provisions set forth in this letter agreement may be modified or\nwaived only by a separate writing signed by the Company and you, as applicable, expressly so modifying or waiving such agreements.\nThe parties agree that no contract or agreement relating to the Transaction shall be deemed to exist as of the date of this letter agreement, and\nneither you nor the Company shall have any legal obligation of any kind whatsoever with respect to the Transaction (including by virtue of this letter\nagreement), unless and until a definitive agreement has been executed and delivered by you and the Company.\n5\nThis letter agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which\ntogether shall be deemed one and the same agreement.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company with respect to the subject matter hereof.\n* * * * *\nVery truly yours,\nTODD SHIPYARDS CORPORATION\nBy:  /s/ Stephen G. Welch\nName: Stephen G. Welch\nTitle: President\nTHE PROVISIONS OF THE FOREGOING\nLETTER ARE AGREED TO AND ACKNOWLEDGED\nBY THE UNDERSIGNED:\nVIGOR INDUSTRIAL, LLC\nBy: /s/ Frank Foti\nName: Frank Foti\nTitle:  President	EX-99.(E)(4) 3 dex99e4.htm CONFIDENTIALITY LETTER AGREEMENT FROM THE COMPANY TO THE\nPARENT\nExhibit (e)(4)\nTODD SHIPYARDS CORPORATION\n1801 16th Ave. SW\nSeattle, WA 99134\nJune 8, 2010\nVigor Industrial, LLC\nAttention: Frank Foti\n5555 N. Channel Avenue\nPortland, Oregon 97217\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction (the "Transaction") with Todd Shipyards Corporation, a Delaware corporation\nand/or its subsidiary corporations (collectively, the "Company") pursuant to which you or your Affiliate (as defined herein) may acquire some or all\nof the equity or assets of the Company, the Company is prepared to provide to you reasonable access to and records relating to properties owned,\nleased, or operated by the Company; and certain other information concerning the past, current or prospective business, operations, assets and\nliabilities of the Company, certain of which information is either non-public, confidential or proprietary in nature. For purposes of this letter\nagreement, the term "Affiliate" shall mean any corporation, company or other business entity directly or indirectly controlling you or under your\ncontrol. The term "control" means (i) direct or indirect beneficial ownership of greater than fifty percent (50%) of the voting securities or greater\nthan fifty percent (50%) interest in the income of such corporation, company, or other business entity or (ii) the actual present capacity to elect a\nmajority of the directors of such corporation, company, or other business entity.\nAs a condition to such information concerning the business, operations, assets and liabilities of the Company being furnished to you, your\nAffiliate and/or your Representatives (as defined below) you and your Affiliate agree to treat any information concerning the Company (whether\nprepared by the Company, its advisors, or otherwise, and irrespective of whether furnished orally or in writing or gathered by inspection, and\nregardless of whether specifically identified as "confidential" or "privileged" or both) which is or was furnished to you, your Affiliate or your\nRepresentatives before or after the date of this letter agreement by or on behalf of the Company (herein collectively referred to as the "Evaluation\nMaterial") in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions hereinafter set forth.\nAs used in this letter agreement, the term "Representatives" means the directors, officers, partners, employees, representatives, financial, legal,\naccounting and other advisors, affiliates and associates (as those terms are defined in Rule 12b-2 under the Securities Exchange Act of 1934) and\nagents of you or the Company, as the case may be. The term "person" as used in this Agreement shall be broadly interpreted to include without\nlimitation the media and any corporation, partnership, group, individual or other entity.\n1\nThe term "Evaluation Material" also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents\nprepared by you, your Affiliate and/or your Representatives which contain, reflect or are based upon, in whole or in part, the information furnished\nto you, your Affiliate or your Representatives pursuant hereto. The term "Evaluation Material" does not include information which (i) is or becomes\ngenerally available to the public other than as a result of a disclosure by you, your Affiliate or your Representatives; or (ii) becomes available to you\non a non-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not known by you to be\nbound by a confidentiality agreement with or other contractual obligation of confidentiality to the Company or any other party with respect to such\ninformation; (iii) was already in your possession or the possession of your Affiliate or Representatives free of any restriction as to its use or\ndisclosure; or (iv) was independently developed by you or your Affiliate or Representatives without using or referring to the Evaluation Material.\nYou hereby agree that you, your Affiliate and your Representatives shall use the Evaluation Material solely for the purpose of evaluating the\nTransaction, that the Evaluation Material will be kept confidential, and that you, your Affiliate and your Representatives will not disclose any of the\nEvaluation Material in any manner whatsoever; provided, however, that: (i) you may make any disclosure of such information to which the\nCompany gives its prior written consent, and (ii) any of such information may be disclosed to your Affiliate or Representatives who need to know\nsuch information for the sole purpose of evaluating the Transaction, who agree to keep such information confidential, and who are provided with\na\ncopy of this letter agreement and agree to be bound by the confidentiality terms hereof. In any event, you shall be responsible for any breach of\nthis\nletter agreement by any of your Affiliates or Representatives and you agree to, at your sole expense, take all reasonable measures (including but not\nlimited to court proceedings) to restrain your Affiliate and/or Representatives from prohibited or unauthorized disclosure or use of the Evaluation\nMaterial.\nIn\nthe event you wish to provide any Evaluation Material to potential sources of debt or equity, you must seek our prior written consent to do\nso.\nThe Company will respond promptly and will not unreasonably withhold such approval. In the event the Company consents to such disclosure,\nthe recipients of Evaluation Material pursuant to such consent will be required to sign a confidentiality agreement in substantially the form of this\nAgreement prior to any such disclosure. Any such recipient of Evaluation Material will be deemed one of your Representatives for purposes of this\nAgreement.\nWithout the prior written consent of the other party, neither you nor the Company, nor the Representatives of either party shall disclose to any\nother person the fact that: (i) the Evaluation Material has been made available to you or that you have inspected any portion of the Evaluation\nMaterial; (ii) that this letter agreement had been entered into; and/or (iii) that discussion or negotiations are taking place with you concerning the\nTransaction, or any of the terms, conditions or other facts with respect thereto (except as otherwise required by applicable law, regulation, legal\nprocess or pursuant to applicable requirements of any listing agreement with or the rules of any securities exchange or similar regulatory body).\nWithout the written consent of the Company, you shall not contact (except in the normal and ordinary course of business unrelated to a possible\nTransaction) or discuss the possibility of a Transaction with any employee or director of the Company or its subsidiary corporations, other than\nStephen G. Welch, the President and CEO of the Company, Patrick Hodgson, Chairman of the Board, and Joseph D. Lehrer, a member of the Board\nof the Company.\n2\nIn the event that you, your Affiliate or any of your Representatives are requested or required (by law, regulation, process, the rules of a\nrecognized stock exchange, oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand or other similar process) to disclose any of the Evaluation Material, you, or such Affiliate or Representative, as the case may be, shall\nprovide the Company with prompt written notice of any such request or requirement so that the Company may seek a protective order or other\nappropriate remedy and/or waive your, or such Affiliate or Representative's compliance with the provisions of this letter agreement. Notwithstanding\nany other provision of this letter agreement, if, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you,\nyour Affiliate or any of your Representatives are nonetheless, in the written opinion of your outside counsel, legally compelled to disclose\nEvaluation Material or else stand liable for contempt or suffer other censure or penalty, you, your Affiliate or your Representatives may, without\nliability under this letter agreement, disclose only that portion of the Evaluation Material which such counsel advises you, your Affiliate or your\nRepresentative that is legally required to be disclosed, provided that you, your Affiliate and/or your Representative exercise commercially reasonable\nefforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by cooperating with the Company to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material by such tribunal.\nIf either you or the Company decides that it does not wish to proceed with the Transaction, such party will promptly inform the other party of\nthat decision. In that case, or at any time upon the request of the Company for any reason, you will as soon as reasonably practicable deliver to the\nCompany all Evaluation Material (and all copies thereof) furnished to you, your Affiliate and/or your Representatives by or on behalf of the\nCompany pursuant hereto or at your option destroy such Evaluation Material. In the event of such a decision or request, all other Evaluation Material\nprepared by you, your Affiliate and/or your Representatives shall be destroyed and no copy thereof shall be retained except as otherwise permitted\nby this paragraph. All Evaluation Material in electronic or digital form shall be deleted in a manner that generally will not allow further access by\nyou, your Affiliates or Representatives except as otherwise permitted by this paragraph. Such destruction of Evaluation Material shall be certified\nin\nwriting to the Company by your Chief Executive Officer. Notwithstanding the return or destruction of the Evaluation Material, you, your Affiliate\nand your Representatives will continue to be bound by your obligations of confidentiality and other obligations under this letter agreement.\nEvaluation\nMaterials prepared by your attorney and kept only in your attorney's file may be retained in accordance with your attorney's firm\nretention requirements.\n3\nYou understand and acknowledge that the Company is providing the Evaluation Material in good faith but that neither the Company, nor any\nof its affiliates or representatives (including, without limitation any of the Company's directors, officers, employees, or agents) make any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that neither the Company\nnor any of its affiliates or representatives (including, without limitation any of Company's directors, officers, employees, or agents) shall have any\nliability to you, your Affiliate or to any of your Representatives relating to or resulting from the use of the Evaluation Material or any errors therein\nor omissions therefrom. Only those representations or warranties which are made to you, your Affiliate or your Representatives in a final definitive\nagreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have\nany legal effect, and you agree that if you, your Affiliate or your Representatives determine to engage in the Transaction, such determination will be\nbased solely on the terms of such written agreement and on your own investigation, analysis and assessment of the business to be acquired.\nYou hereby acknowledge that you are aware (and that your Affiliate and/or Representatives who are apprised of this matter have been or will\nbe advised) that the United States securities laws restrict persons with material, non-public information about a company obtained directly or\nindirectly from that company from acquiring or disposing securities of such company or from otherwise engaging in any transaction involving the\ncapital stock of such company, including privately negotiated or open market purchases and sales of such stock, or from communicating such\ninformation to any other person under circumstances in which it is reasonable that such person is likely to purchase or sell such securities.\nAccordingly, you agree that you and your Affiliates will refrain from trading in the securities of the Company at any time you are in possession of\nmaterial, non-public information pertaining thereto. Without limiting the foregoing, neither you nor your Affiliates or Representatives may purchase\nany securities of the Company for a period of three (3) months following the receipt of any Evaluation Material, and for a period of one (1) year\nfollowing the date of this agreement, you and your Affiliates, or any group (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended) in which you or your Affiliate is a member, shall not make a tender offer for securities of the Company and shall not participate in the\nsolicitation of proxies to vote at any meeting of the shareholders of that Company.\nFor a period of two (2) years from the date hereof, neither you, your Affiliate will, without the prior written consent of the Company, (i) either\ndirectly or indirectly solicit or cause to be solicited the employment of or hire any person who is now and within [6] months of such time is an\nofficer of the Company or any of its subsidiary corporations or any person who serves in any management or supervisory position with the\nCompany; provided, however, that general solicitations of employment including through advertisements in trade publications and the use of search\nagencies not directed at such officers or management or supervisory employees and the hiring of any person SO identified shall not be a breach of this\nprovision; or (ii) initiate or cause to be initiated any communications other than in the ordinary course of business and not for the purpose of learning\ninformation that will be used in considering the Transaction with any person known by you to be a customer, supplier, client, account or employee of\nthe Company concerning the Evaluation Material or the Transaction.\n4\nIt is further understood and agreed that money damages may not be a sufficient remedy for any breach of this letter agreement by you, your\nAffiliate or any of your Representatives and that the Company may be entitled to seek equitable relief, including injunction and specific\nperformance, as a remedy for any such breach, and you further agree to waive any requirement for the securing or posting of any bond by the\nCompany in connection with such remedy for a breach of this letter agreement by you, your Affiliate or any of your Representatives. Such remedies\nshall not be deemed to be the exclusive remedies for a breach by you, your Affiliate and/or your Representatives of this letter agreement, but shall be\nin addition to all other remedies available at law or equity to the Company. You hereby agree to indemnify, defend and hold the Company and its\nrepresentatives harmless against all losses, claims, damages, liabilities, costs and expenses (including reasonable attorney's fees and the cost of\nenforcing this indemnity) arising out of or resulting from the Company's enforcement of its rights under this letter agreement to the extent that you,\nyour Affiliates or your Representatives have violated the terms of this letter agreement.\nIt is understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor privilege hereunder.\nIn the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines that you, your Affiliate or any of your\nRepresentatives have breached this letter agreement, then you shall be liable and pay to the Company the reasonable legal fees incurred by the\nCompany in connection with such litigation, including any appeal therefrom. Similarly, if the court determines you, your Affiliate and your\nRepresentatives have not breached this letter agreement, then the Company shall be liable and pay your reasonable legal fees incurred in connection\nwith such litigation, including any appeal therefrom.\nThis letter agreement shall be governed by and construed in accordance with the laws of the State of Washington, without giving effect to\nprinciples of conflict of laws thereof. You hereby agree and consent to personal jurisdiction and service and venue in any federal or state court within\nthe State of Washington having subject matter jurisdiction, for the purpose of any action, suit, or proceeding arising out of or relating to this letter\nagreement. The invalidity or unenforceability of any provision of this letter agreement shall not affect the validity or enforceability of any other\nprovisions of this letter agreement, which shall remain in full force and effect. The provisions set forth in this letter agreement may be modified or\nwaived only by a separate writing signed by the Company and you, as applicable, expressly so modifying or waiving such agreements.\nThe parties agree that no contract or agreement relating to the Transaction shall be deemed to exist as of the date of this letter agreement, and\nneither you nor the Company shall have any legal obligation of any kind whatsoever with respect to the Transaction (including by virtue of this letter\nagreement), unless and until a definitive agreement has been executed and delivered by you and the Company.\n5\nThis letter agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which\ntogether shall be deemed one and the same agreement.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company with respect to the subject matter hereof.\n>\n*\n*\n*\n>\nVery truly yours,\nTODD SHIPYARDS CORPORATION\nBy:\n/s/ Stephen G. Welch\nName: Stephen G. Welch\nTitle: President\nTHE PROVISIONS OF THE FOREGOING\nLETTER ARE AGREED TO AND ACKNOWLEDGED\nBY THE UNDERSIGNED:\nVIGOR INDUSTRIAL, LLC\nBy:\n/s/ Frank Foti\nName: Frank Foti\nTitle: President\n6	EX-99.(E)(4) 3 dex99e4.htm CONFIDENTIALITY LETTER AGREEMENT FROM THE COMPANY TO THE\nPARENT\nExhibit (e)(4)\nTODD SHIPYARDS CORPORATION\n1801 – 16 Ave. SW\nSeattle, WA 99134\nJune 8, 2010\nVigor Industrial, LLC\nAttention: Frank Foti\n5555 N. Channel Avenue\nPortland, Oregon 97217\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction (the “Transaction”) with Todd Shipyards Corporation, a Delaware corporation\nand/or its subsidiary corporations (collectively, the “Company”) pursuant to which you or your Affiliate (as defined herein) may acquire some or all\nof the equity or assets of the Company, the Company is prepared to provide to you reasonable access to and records relating to properties owned,\nleased, or operated by the Company; and certain other information concerning the past, current or prospective business, operations, assets and\nliabilities of the Company, certain of which information is either non-public, confidential or proprietary in nature. For purposes of this letter\nagreement, the term “Affiliate” shall mean any corporation, company or other business entity directly or indirectly controlling you or under your\ncontrol. The term “control” means (i) direct or indirect beneficial ownership of greater than fifty percent (50%) of the voting securities or greater\nthan fifty percent (50%) interest in the income of such corporation, company, or other business entity or (ii) the actual present capacity to elect a\nmajority of the directors of such corporation, company, or other business entity.\nAs a condition to such information concerning the business, operations, assets and liabilities of the Company being furnished to you, your\nAffiliate and/or your Representatives (as defined below) you and your Affiliate agree to treat any information concerning the Company (whether\nprepared by the Company, its advisors, or otherwise, and irrespective of whether furnished orally or in writing or gathered by inspection, and\nregardless of whether specifically identified as “confidential” or “privileged” or both) which is or was furnished to you, your Affiliate or your\nRepresentatives before or after the date of this letter agreement by or on behalf of the Company (herein collectively referred to as the “Evaluation\nMaterial”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions hereinafter set forth.\nAs used in this letter agreement, the term “Representatives” means the directors, officers, partners, employees, representatives, financial, legal,\naccounting and other advisors, affiliates and associates (as those terms are defined in Rule 12b-2 under the Securities Exchange Act of 1934) and\nagents of you or the Company, as the case may be. The term “person” as used in this Agreement shall be broadly interpreted to include without\nlimitation the media and any corporation, partnership, group, individual or other entity.\n1\nth\nThe term “Evaluation Material” also shall be deemed to include all notes, analyses, compilations, studies, interpretations or other documents\nprepared by you, your Affiliate and/or your Representatives which contain, reflect or are based upon, in whole or in part, the information furnished\nto you, your Affiliate or your Representatives pursuant hereto. The term “Evaluation Material” does not include information which (i) is or becomes\ngenerally available to the public other than as a result of a disclosure by you, your Affiliate or your Representatives; or (ii) becomes available to you\non a non-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not known by you to be\nbound by a confidentiality agreement with or other contractual obligation of confidentiality to the Company or any other party with respect to such\ninformation; (iii) was already in your possession or the possession of your Affiliate or Representatives free of any restriction as to its use or\ndisclosure; or (iv) was independently developed by you or your Affiliate or Representatives without using or referring to the Evaluation Material.\nYou hereby agree that you, your Affiliate and your Representatives shall use the Evaluation Material solely for the purpose of evaluating the\nTransaction, that the Evaluation Material will be kept confidential, and that you, your Affiliate and your Representatives will not disclose any of the\nEvaluation Material in any manner whatsoever; provided, however, that: (i) you may make any disclosure of such information to which the\nCompany gives its prior written consent, and (ii) any of such information may be disclosed to your Affiliate or Representatives who need to know\nsuch information for the sole purpose of evaluating the Transaction, who agree to keep such information confidential, and who are provided with a\ncopy of this letter agreement and agree to be bound by the confidentiality terms hereof. In any event, you shall be responsible for any breach of this\nletter agreement by any of your Affiliates or Representatives and you agree to, at your sole expense, take all reasonable measures (including but not\nlimited to court proceedings) to restrain your Affiliate and/or Representatives from prohibited or unauthorized disclosure or use of the Evaluation\nMaterial.\nIn the event you wish to provide any Evaluation Material to potential sources of debt or equity, you must seek our prior written consent to do\nso. The Company will respond promptly and will not unreasonably withhold such approval. In the event the Company consents to such disclosure,\nthe recipients of Evaluation Material pursuant to such consent will be required to sign a confidentiality agreement in substantially the form of this\nAgreement prior to any such disclosure. Any such recipient of Evaluation Material will be deemed one of your Representatives for purposes of this\nAgreement.\nWithout the prior written consent of the other party, neither you nor the Company, nor the Representatives of either party shall disclose to any\nother person the fact that: (i) the Evaluation Material has been made available to you or that you have inspected any portion of the Evaluation\nMaterial; (ii) that this letter agreement had been entered into; and/or (iii) that discussion or negotiations are taking place with you concerning the\nTransaction, or any of the terms, conditions or other facts with respect thereto (except as otherwise required by applicable law, regulation, legal\nprocess or pursuant to applicable requirements of any listing agreement with or the rules of any securities exchange or similar regulatory body).\nWithout the written consent of the Company, you shall not contact (except in the normal and ordinary course of business unrelated to a possible\nTransaction) or discuss the possibility of a Transaction with any employee or director of the Company or its subsidiary corporations, other than\nStephen G. Welch, the President and CEO of the Company, Patrick Hodgson, Chairman of the Board, and Joseph D. Lehrer, a member of the Board\nof the Company.\n2\nIn the event that you, your Affiliate or any of your Representatives are requested or required (by law, regulation, process, the rules of a\nrecognized stock exchange, oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand or other similar process) to disclose any of the Evaluation Material, you, or such Affiliate or Representative, as the case may be, shall\nprovide the Company with prompt written notice of any such request or requirement so that the Company may seek a protective order or other\nappropriate remedy and/or waive your, or such Affiliate or Representative’s compliance with the provisions of this letter agreement. Notwithstanding\nany other provision of this letter agreement, if, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you,\nyour Affiliate or any of your Representatives are nonetheless, in the written opinion of your outside counsel, legally compelled to disclose\nEvaluation Material or else stand liable for contempt or suffer other censure or penalty, you, your Affiliate or your Representatives may, without\nliability under this letter agreement, disclose only that portion of the Evaluation Material which such counsel advises you, your Affiliate or your\nRepresentative that is legally required to be disclosed, provided that you, your Affiliate and/or your Representative exercise commercially reasonable\nefforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by cooperating with the Company to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation Material by such tribunal.\nIf either you or the Company decides that it does not wish to proceed with the Transaction, such party will promptly inform the other party of\nthat decision. In that case, or at any time upon the request of the Company for any reason, you will as soon as reasonably practicable deliver to the\nCompany all Evaluation Material (and all copies thereof) furnished to you, your Affiliate and/or your Representatives by or on behalf of the\nCompany pursuant hereto or at your option destroy such Evaluation Material. In the event of such a decision or request, all other Evaluation Material\nprepared by you, your Affiliate and/or your Representatives shall be destroyed and no copy thereof shall be retained except as otherwise permitted\nby this paragraph. All Evaluation Material in electronic or digital form shall be deleted in a manner that generally will not allow further access by\nyou, your Affiliates or Representatives except as otherwise permitted by this paragraph. Such destruction of Evaluation Material shall be certified in\nwriting to the Company by your Chief Executive Officer. Notwithstanding the return or destruction of the Evaluation Material, you, your Affiliate\nand your Representatives will continue to be bound by your obligations of confidentiality and other obligations under this letter agreement.\nEvaluation Materials prepared by your attorney and kept only in your attorney’s file may be retained in accordance with your attorney’s firm\nretention requirements.\n3\nYou understand and acknowledge that the Company is providing the Evaluation Material in good faith but that neither the Company, nor any\nof its affiliates or representatives (including, without limitation any of the Company’s directors, officers, employees, or agents) make any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree that neither the Company\nnor any of its affiliates or representatives (including, without limitation any of Company’s directors, officers, employees, or agents) shall have any\nliability to you, your Affiliate or to any of your Representatives relating to or resulting from the use of the Evaluation Material or any errors therein\nor omissions therefrom. Only those representations or warranties which are made to you, your Affiliate or your Representatives in a final definitive\nagreement regarding the Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have\nany legal effect, and you agree that if you, your Affiliate or your Representatives determine to engage in the Transaction, such determination will be\nbased solely on the terms of such written agreement and on your own investigation, analysis and assessment of the business to be acquired.\nYou hereby acknowledge that you are aware (and that your Affiliate and/or Representatives who are apprised of this matter have been or will\nbe advised) that the United States securities laws restrict persons with material, non-public information about a company obtained directly or\nindirectly from that company from acquiring or disposing securities of such company or from otherwise engaging in any transaction involving the\ncapital stock of such company, including privately negotiated or open market purchases and sales of such stock, or from communicating such\ninformation to any other person under circumstances in which it is reasonable that such person is likely to purchase or sell such securities.\nAccordingly, you agree that you and your Affiliates will refrain from trading in the securities of the Company at any time you are in possession of\nmaterial, non-public information pertaining thereto. Without limiting the foregoing, neither you nor your Affiliates or Representatives may purchase\nany securities of the Company for a period of three (3) months following the receipt of any Evaluation Material, and for a period of one (1) year\nfollowing the date of this agreement, you and your Affiliates, or any group (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended) in which you or your Affiliate is a member, shall not make a tender offer for securities of the Company and shall not participate in the\nsolicitation of proxies to vote at any meeting of the shareholders of that Company.\nFor a period of two (2) years from the date hereof, neither you, your Affiliate will, without the prior written consent of the Company, (i) either\ndirectly or indirectly solicit or cause to be solicited the employment of or hire any person who is now and within [6] months of such time is an\nofficer of the Company or any of its subsidiary corporations or any person who serves in any management or supervisory position with the\nCompany; provided, however, that general solicitations of employment including through advertisements in trade publications and the use of search\nagencies not directed at such officers or management or supervisory employees and the hiring of any person so identified shall not be a breach of this\nprovision; or (ii) initiate or cause to be initiated any communications other than in the ordinary course of business and not for the purpose of learning\ninformation that will be used in considering the Transaction with any person known by you to be a customer, supplier, client, account or employee of\nthe Company concerning the Evaluation Material or the Transaction.\n4\nIt is further understood and agreed that money damages may not be a sufficient remedy for any breach of this letter agreement by you, your\nAffiliate or any of your Representatives and that the Company may be entitled to seek equitable relief, including injunction and specific\nperformance, as a remedy for any such breach, and you further agree to waive any requirement for the securing or posting of any bond by the\nCompany in connection with such remedy for a breach of this letter agreement by you, your Affiliate or any of your Representatives. Such remedies\nshall not be deemed to be the exclusive remedies for a breach by you, your Affiliate and/or your Representatives of this letter agreement, but shall be\nin addition to all other remedies available at law or equity to the Company. You hereby agree to indemnify, defend and hold the Company and its\nrepresentatives harmless against all losses, claims, damages, liabilities, costs and expenses (including reasonable attorney’s fees and the cost of\nenforcing this indemnity) arising out of or resulting from the Company’s enforcement of its rights under this letter agreement to the extent that you,\nyour Affiliates or your Representatives have violated the terms of this letter agreement.\nIt is understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor privilege hereunder.\nIn the event of litigation relating to this letter agreement, if a court of competent jurisdiction determines that you, your Affiliate or any of your\nRepresentatives have breached this letter agreement, then you shall be liable and pay to the Company the reasonable legal fees incurred by the\nCompany in connection with such litigation, including any appeal therefrom. Similarly, if the court determines you, your Affiliate and your\nRepresentatives have not breached this letter agreement, then the Company shall be liable and pay your reasonable legal fees incurred in connection\nwith such litigation, including any appeal therefrom.\nThis letter agreement shall be governed by and construed in accordance with the laws of the State of Washington, without giving effect to\nprinciples of conflict of laws thereof. You hereby agree and consent to personal jurisdiction and service and venue in any federal or state court within\nthe State of Washington having subject matter jurisdiction, for the purpose of any action, suit, or proceeding arising out of or relating to this letter\nagreement. The invalidity or unenforceability of any provision of this letter agreement shall not affect the validity or enforceability of any other\nprovisions of this letter agreement, which shall remain in full force and effect. The provisions set forth in this letter agreement may be modified or\nwaived only by a separate writing signed by the Company and you, as applicable, expressly so modifying or waiving such agreements.\nThe parties agree that no contract or agreement relating to the Transaction shall be deemed to exist as of the date of this letter agreement, and\nneither you nor the Company shall have any legal obligation of any kind whatsoever with respect to the Transaction (including by virtue of this letter\nagreement), unless and until a definitive agreement has been executed and delivered by you and the Company.\n5\nThis letter agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which\ntogether shall be deemed one and the same agreement.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company with respect to the subject matter hereof.\n*\n*\n*\n*\n*\nVery truly yours,\nTODD SHIPYARDS CORPORATION\nBy: /s/ Stephen G. Welch\nName: Stephen G. Welch\nTitle: President\nTHE PROVISIONS OF THE FOREGOING\nLETTER ARE AGREED TO AND ACKNOWLEDGED\nBY THE UNDERSIGNED:\nVIGOR INDUSTRIAL, LLC\nBy: /s/ Frank Foti\nName: Frank Foti\nTitle: President\n6
+6c01508d5152e4af44844d7aa71d21e3.pdf	effective_date jurisdiction party	Exhibit 10.2\nNON-COMPETITION, NON-SOLICITATION, AND\nCONFIDENTIALITY AGREEMENT\nThis NON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT (the “Agreement”) is\neffective as of the 18th day of October, 2011, by and between Electromed, Inc. (the “Corporation”) and Jeremy Brock (the\n“Employee”).\nRECITALS\nA. Effective October 18, 2011, the Employee will be promoted to the position of Chief Financial Officer of the Corporation;\nB. In this position, Employee will be employed by the Corporation in a capacity in which the Employee may create or\nhave access to proprietary confidential and/or trade secret information of the Corporation; and\nB. The Corporation has expended substantial time and resources to develop proprietary confidential and/or trade secret\ninformation and to develop valuable relationships and goodwill within its industry; and\nC. The Employee recognizes that the Corporation operates in a highly competitive environment and the importance to the\nCorporation of ensuring the Employee’s loyalty and protecting the Corporation’s actual and prospective customers,\nbusiness relations, employees, and confidential information; and\nD. The Employee has entered into this Agreement in consideration of the Corporation and Employee entering into the\nEmployment Agreement of even date which provides, among other things, for employment as Chief Financial Officer,\nincreased base salary and benefits, severance pay under those circumstances set forth in the Employment Agreement,\nand in consideration of being given access to Corporation’s proprietary confidential and/or trade secret information, the\nreceipt and sufficiency of which consideration is hereby acknowledged by the Employee.\nAGREEMENT\nIn consideration of the above recitals and the promises set forth in this Agreement, the parties agree as follows:\n1. Protection of Confidential Information.\n1.1 Definition of Confidential Information. As used in this Agreement, the term “Confidential\nInformation” shall mean any information which the Employee learns or develops during the Employee’s employment with\nthe Corporation that derives independent economic value from being not generally known or readily ascertainable by\nother persons who could obtain economic value from its disclosure or use, and includes, but is not limited to, trade\nsecrets, financial information, personnel information, and information relating to such matters as existing or contemplated\nproducts, services, profit margins, fee schedules, pricing, design, processes, formulae, business plans, sales techniques,\nmarketing techniques, training manuals\n-1-\nand materials, policies or practices related to the Corporation’s business, personnel or other matters, computer\ndatabases, computer programs, software and other technology, customer lists and requirements, vendor lists, or supply\ninformation. Confidential Information includes such information of the Corporation, its customers, vendors, and other third\nparties or entities with whom the Corporation does business. Any information disclosed to the Employee or to which the\nEmployee has access during the time of the Employee’s employment that the Employee reasonably considers to be\nConfidential Information, or which the Corporation treats as Confidential Information, will be presumed Confidential\nInformation.\n1.2 Restrictions on Use or Disclosure of Confidential Information. The Employee shall keep the\nConfidential Information in absolute confidence both during the Employee’s employment with the Corporation and after\nthe termination of the Employee’s employment, regardless of the reason for such termination. The Employee agrees that\nthe Employee will not, at any time, disclose to others, use for the benefit of any entity or person other than the\nCorporation, or otherwise take or copy any such Confidential Information, whether or not developed by the Employee,\nexcept as required in the Employee’s duties to the Corporation.\n1.3 Return of Confidential Information and the Corporation’s Property. When the Employee’s\nemployment terminates with the Corporation, regardless of the reason for such termination, the Employee will promptly\nturn over to the Corporation in good condition all Corporation property in the Employee’s possession or control, including\nbut not limited to all originals, copies of, or electronically stored documents or other materials containing Confidential\nInformation, regardless of who prepared them. In the case of electronically stored information retained by the Employee\noutside of the Corporation’s electronic systems, the Employee will promptly make a hard copy of such information in\npaper, audio recording, disc format, or other format as appropriate, turn that hard copy over to the Corporation, and then\ndestroy the Employee’s electronically stored information.\n2. Noncompetition/Non-Solicitation.\n2.1. Acknowledgement by the Employee. The Employee acknowledges that (a) the Employee’s\nservices to be performed for the Corporation are of a special and unique nature; (b) the Corporation operates in a highly\ncompetitive environment and would be substantially harmed if the Employee were to compete with the Corporation or\ndivulge its confidential information; (c) the Employee has received valuable and sufficient consideration for entering into\nthis Agreement, including but not limited to employment with the Corporation in the promoted position of Chief Financial\nOffer, and the receipt of Confidential Information; and (d) the provisions of this Section 2, including all of its subparts, are\nreasonable and necessary to protect the Corporation’s business.\n2.2. “Corporate Product” Defined. For purposes of this Agreement, “Corporate Product” means any\nproduct or service (including any component thereof and any research to develop information useful in connection with a\nproduct or service) that has been or is being designed, developed, manufactured, marketed, or sold by the Corporation or\nwith respect to which the Employee has acquired Confidential Information.\n-2-\nThe Employee understands and acknowledges that, at the present time, Corporate Products includes the\nSmartVest® Airway Clearance System and related products. The Employee understands and acknowledges that the\nforegoing description of Corporate Products may change, and the provisions of this Section 2 and all of its subparts shall\napply to the Corporate Products of the Corporation in effect upon the termination of the Employee’ s employment with the\nCorporation.\n2.3 “Competitive Product” Defined. For purposes hereof, “Competitive Product” means any product or\nservice (including any components thereof and any research to develop information useful in connection with the product\nor service) that is being designed, developed, manufactured, marketed, or sold by any person or entity other than the\nCorporation that is of the same general type, performs similar functions, or is used for the same purpose as a Corporate\nProduct or about which the Employee has acquired Confidential Information.\n2.4 Noncompete Obligations. The Employee agrees that, during the Employee’s employment with the\nCorporation and for a period of twelve (12) months following the Employee’s termination of employment with the\nCorporation, regardless of the reason for termination, the Employee will not, directly or indirectly, render services to any\nperson or entity that designs, develops, manufactures, markets, or sells a Competitive Product in any geographic area\nwhere the Corporation designs, develops, manufactures, markets, or sells a Corporate Product. It is expressly\nunderstood, however, that the Employee is free to work for a competitor of the Corporation provided that such\nemployment does not include any responsibilities for or in connection with a Competitive Product.\nThe Employee understands and acknowledges that, at the present time, the geographic market of the\nCorporation includes North America. The Employee understands and acknowledges that the foregoing description of the\nCorporation’s geographic market may change, and the provisions of this Section 2 and all of its subparts shall apply to\nthe geographic market of the Corporation in effect upon the termination of the Employee’s employment with the\nCorporation.\n2.5 No Solicitation of Customers. During the Employee’s employment with the Corporation and for a\nperiod of twelve (12) months after the Employee’s termination of employment with the Corporation, regardless of the\nreason for such termination, the Employee agrees that the Employee shall not, directly or indirectly, solicit business from,\nwork for, or otherwise interfere with or attempt to interfere with the Corporation’s relationship with any customer or\nprospective customer of the Corporation. For purposes of this Section, “customer” shall mean any purchaser of the\nCorporation’s products or services within the prior twelve (12) month period and “prospective costumer” shall mean any\nperson or entity who has consulted with the Corporation about its products or services within the prior six (six) month\nperiod.\n2.6 No Solicitation of Employees or Business Contacts. During the Employee’s employment with the\nCorporation and for a period of twelve (12) months after the Employee’s termination of employment with the Corporation,\nregardless of the reason for such termination, the Employee agrees that the Employee shall not, directly or indirectly,\ntake any action to encourage, solicit or recruit any then-current current employee, consultant, independent contractor,\nsubcontractor, supplier, vendor, or other business relation of the Corporation to terminate or curtail their relationship with\nthe Corporation.\n-3-\n2.7 Disclosure of Obligations. The Employee agrees that, during the Employee’s employment with the\nCorporation and for a period of twelve (12) months after the Employee’s termination of employment with the Corporation,\nregardless of the reason for such termination, the Employee shall, prior to accepting employment or any other business\nrelationship with any other person or entity, inform that person or entity of the Employee’s obligations under this Section\n2, including all of its subparts.\n3. Compliance and Remedies. The Employee recognizes that if the Employee violates this Agreement, including but not\nlimited to Paragraphs 1 and 2 of this Agreement, irreparable damage will result to the Corporation that could not\nadequately be remedied by monetary damages. As a result, the Employee hereby agrees that notwithstanding any other\ndispute resolution provisions of this Agreement, in the event of any breach by the Employee of this Agreement, including\nbut not limited to Paragraphs 1 and 2 of this Agreement, the Corporation shall be entitled, in addition to any other legal or\nequitable remedies available to it, to an injunction to restrain the Employee’s violation of any portion of this Agreement.\n4. Miscellaneous.\n4.1 Integration. This Agreement embodies the entire agreement and understanding among the parties\nrelative to subject matter hereof and supersedes all prior agreements, understandings, or past practices, whether written\nor oral, relating to such subject matter.\n4.2 Survival of Sections 1 and 2. Employee’s obligations set forth in Sections 1 and 2 of this\nAgreement, including all of these sections’ subparts, shall survive the termination of this Agreement and Employee’s\ntermination of employment with the Corporation, regardless of the reason for such terminations.\n4.3 Applicable Law; Venue. This Agreement and the rights of the parties shall be governed by and\nconstrued and enforced in accordance with the laws of the state of Minnesota, without regard to any state’s choice of law\nprinciples or rules. The venue for any action hereunder shall be in the state of Minnesota, whether or not such venue is or\nsubsequently becomes inconvenient, and the parties consent to the jurisdiction of the courts of the state of Minnesota,\ncounty of Hennepin, and the federal district courts of Minnesota.\n4.4 Counterparts. This Agreement may be executed in several counterparts and as so executed shall\nconstitute one agreement binding on the parties hereto.\n4.5 Modification by the Parties. This Agreement shall not be modified or amended except by a written\ninstrument signed by the parties. In addition, no waiver of any provision of this Agreement shall be binding unless set\nforth in a writing signed by the party effecting the waiver. Any waiver shall be limited to the circumstance or event\nspecifically referenced in the written waiver document and shall not be deemed a waiver of any other term of this\nAgreement or of the same circumstance or event upon any recurrence thereof.\n-4-\n4.6 Severability; Blue Pencil. The invalidity or partial invalidity of any portion of this Agreement shall not\ninvalidate the remainder thereof, and said remainder shall remain in full force and effect. Moreover, if one or more of the\nprovisions contained in this Agreement shall, for any reason, be held to be excessively broad as to scope, activity,\nsubject or otherwise, so as to be unenforceable at law, such provision or provisions shall be construed by the appropriate\njudicial body by limiting or reducing it or them, so as to be enforceable to the maximum extent compatible with then\napplicable law.\n4.7 Headings. The section headings contained in this Agreement are for reference purposes only and\nshall not in any way affect the meaning or interpretation of this Agreement.\n*****remainder of page intentionally left blank—signature page to follow*****\n-5-\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date herein first above written.\nELECTROMED, INC.\nDate: October 19, 2011\n/s/ Robert D. Hansen\nBy: Robert D. Hansen\nIts: Chairman/CEO\nEMPLOYEE:\nDate: October 19, 2011\n/s/ Jeremy Brock\nJeremy Brock\n-6-	Exhibit 10.2\nNON-COMPETITION, NON-SOLICITATION, AND\nCONFIDENTIALITY AGREEMENT\nThis NON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT (the “Agreemen ”) is\neffective as of the 18th day ofOctober, 2011, by and between Electromed, Inc. (the “Corporation”) and J eremy Brock (the\n“Employee”).\nRECITALS\nA. Effective October 18, 2011, the Employee will be promoted to the position of Chief Financial Officer of the Corporation;\nB. In this position, Employee will be employed by the Corporation in a capacity in which the Employee may create or\nhave access to proprietary confidential and/ortrade secret information of the Corporation; and\nB. The Corporation has expended substantial time and resources to develop proprietary confidential and/or trade secret\ninformation and to develop valuable relationships and goodwill within its industry; and\nC. The Employee recognizes that the Corporation operates in a highly competitive environment and the importance to the\nCorporation of ensuring the Employee's loyalty and protecting the Corporation's actual and prospective customers,\nbusiness relations, employees, and confidential information; and\nD. The Employee has entered into this Agreement in consideration of the Corporation and Employee entering into the\nEmployment Agreement of even date which provides, among other things, for employment as Chief Financial Officer,\nincreased base salary and benefits, severance pay under those circumstances set forth in the EmploymentAgreement,\nand in consideration of being given access to Corporation's proprietary confidential and/or trade secret information, the\nreceipt and sufficiency of which consideration is hereby acknowledged by the Employee.\nAGREEMENT\nIn consideration of the above recitals and the promises set forth in this Agreement, the parties agree as follows:\n1. Protection of Confidential Information.\n1.1 Definition of Confidential Information. As used in this Agreement, the term “Confidential\nInformation” shall mean any information which the Employee learns or develops during the Employee's employment with\nthe Corporation that derives independent economic value from being not generally known or readily ascertainable by\nother persons who could obtain economic value from its disclosure or use, and includes, but is not limited to, trade\nsecrets, financial information, personnel information, and information relating to such matters as existing or contemplated\nproducts, services, profit margins, fee schedules, pricing, design, processes, formulae, business plans, sales techniques,\nmarketing techniques, training manuals\nand materials, policies or practices related to the Corporation's business, personnel or other matters, computer\ndatabases, computer programs, software and other technology, customer lists and requirements, vendor lists, or supply\ninformation. Confidential Information includes such information of the Corporation, its customers, vendors, and other third\nparties or entities with whom the Corporation does business. Any information disclosed to the Employee or to which the\nEmployee has access during the time of the Employee's employment that the Employee reasonably considers to be\nConfidential Information, or which the Corporation treats as Confidential Information, will be presumed Confidential\nInformation.\n1.2 Restrictions on Use or Disclosure of Confidential Information. The Employee shall keep the\nConfidential Information in absolute confidence both during the Employee's employment with the Corporation and after\nthe termination of the Employee's employment, regardless of the reason for such termination. The Employee agrees that\nthe Employee will not, at any time, disclose to others, use for the benefit of any entity or person other than the\nCorporation, or otherwise take or copy any such Confidential Information, whether or not developed by the Employee,\nexceptas required in the Employee's duties to the Corporation.\n1.3 Return of Confidential Information and the Corporation's Properly. When the Employee's\nemployment terminates with the Corporation, regardless of the reason for such termination, the Employee will promptly\nturn over to the Corporation in good condition all Corporation property in the Employee's possession or control, including\nbut not limited to all originals, copies of, or electronically stored documents or other materials containing Confidential\nInformation, regardless of who prepared them. In the case of electronically stored information retained by the Employee\noutside of the Corporation's electronic systems, the Employee will promptly make a hard copy of such information in\npaper, audio recording, disc format, or other format as appropriate, turn that hard copy over to the Corporation, and then\ndestroy the Employee's electronically stored information.\n2. Noncompetition/Non-Solicitation.\n2.1. Acknowledgement by the Employee. The Employee acknowledges that (a) the Employee's\nservices to be performed for the Corporation are of a special and unique nature; (b) the Corporation operates in a highly\ncompetitive environment and would be substantially harmed if the Employee were to compete with the Corporation or\ndivulge its confidential information; (c) the Employee has received valuable and sufficient consideration for entering into\nthis Agreement, including but not limited to employment with the Corporation in the promoted position of Chief Financial\nOffer, and the receipt of Confidential Information; and (d) the provisions of this Section 2, including all of its subparts, are\nreasonable and necessary to protectthe Corporation's business.\n2.2. “Corporate Product" Defined. For purposes of this Agreement, “Corporate Product” means any\nproduct or service (including any component thereof and any research to develop information useful in connection with a\nproductor service) that has been or is being designed, developed, manufactured, marketed, or sold by the Corporation or\nwith respect to which the Employee has acquired Confidential Information.\nThe Employee understands and acknowledges that, at the present time, Corporate Products includes the\nSmartVest® AinNay Clearance System and related products. The Employee understands and acknowledges that the\nforegoing description of Corporate Products may change, and the provisions ofthis Section 2 and all of its subparts shall\napply to the Corporate Products of the Corporation in effect upon the termination ofthe Employee' s employment with the\nCorporation.\n2.3 "Competitive Product" Defined. For purposes hereof, “Competitive Product” means any product or\nservice (including any components thereof and any research to develop information useful in connection with the product\nor service) that is being designed, developed, manufactured, marketed, or sold by any person or entity other than the\nCorporation that is ofthe same general type, performs similar functions, or is used for the same purpose as a Corporate\nProductor aboutwhich the Employee has acquired Confidential Information.\n2.4 Noncompete Obligations. The Employee agrees that, during the Employee's employment with the\nCorporation and for a period of twelve (12) months following the Employee's termination of employment with the\nCorporation, regardless of the reason for termination, the Employee will not, directly or indirectly, render services to any\nperson or entity that designs, develops, manufactures, markets, or sells a Competitive Product in any geographic area\nwhere the Corporation designs, develops, manufactures, markets, or sells a Corporate Product. It is expressly\nunderstood, however, that the Employee is free to work for a competitor of the Corporation provided that such\nemployment does not include any responsibilities for or in connection with a Competitive Product.\nThe Employee understands and acknowledges that, at the present time, the geographic market of the\nCorporation includes North America. The Employee understands and acknowledges thatthe foregoing description of the\nCorporation's geographic market may change, and the provisions of this Section 2 and all of its subparts shall apply to\nthe geographic market of the Corporation in effect upon the termination of the Employee's employment with the\nCorporation.\n2.5 No Solicitation of Customers. During the Employee's employment with the Corporation and for a\nperiod of twelve (12) months after the Employee's termination of employment with the Corporation, regardless of the\nreason for such termination, the Employee agrees that the Employee shall not, directly or indirectly, solicit business from,\nwork for, or otherwise interfere with or attempt to interfere with the Corporation's relationship with any customer or\nprospective customer of the Corporation. For purposes of this Section, “customer” shall mean any purchaser of the\nCorporation's products or services within the prior twelve (12) month period and “prospective costumer” shall mean any\nperson or entity who has consulted with the Corporation about its products or services within the prior six (six) month\npenod.\n2.6 No Solicitation of Employees or Business Contacts. During the Employee's employment with the\nCorporation and for a period of twelve (12) months after the Employee's termination of employment with the Corporation,\nregardless of the reason for such termination, the Employee agrees that the Employee shall not, directly or indirectly,\ntake any action to encourage, solicit or recruit any then-current current employee, consultant, independent contractor,\nsubcontractor, supplier, vendor, or other business relation of the Corporation to terminate or curtail their relationship with\nthe Corporation.\n2.7 Disclosure of Obligations. The Employee agrees that, during the Employee's employment with the\nCorporation and for a period of twelve (12) months after the Employee's termination of employment with the Corporation,\nregardless of the reason for such termination, the Employee shall, prior to accepting employment or any other business\nrelationship with any other person or entity, inform that person or entity of the Employee's obligations under this Section\n2, including all of its subparts.\n3. Compliance and Remedies. The Employee recognizes that if the Employee violates this Agreement, including but not\nlimited to Paragraphs 1 and 2 of this Agreement, irreparable damage will result to the Corporation that could not\nadequately be remedied by monetary damages. As a result, the Employee hereby agrees that notwithstanding any other\ndispute resolution provisions of this Agreement, in the event of any breach by the Employee of this Agreement, including\nbut not limited to Paragraphs 1 and 2 of this Agreement, the Corporation shall be entitled, in addition to any other legal or\nequitable remedies available to it, to an injunction to restrain the Employee's violation of any portion of this Agreement.\n4. Miscellaneous.\n4.1 Integration. This Agreement embodies the entire agreement and understanding among the parties\nrelative to subject matter hereof and supersedes all prior agreements, understandings, or past practices, whether written\nor oral, relating to such subject matter.\n4.2 Survival of Sections 1 and 2. Employee's obligations set forth in Sections 1 and 2 of this\nAgreement, including all of these sections' subparts, shall survive the termination of this Agreement and Employee's\ntermination of employment with the Corporation, regardless of the reason for such terminations.\n4.3 Applicable Law; Venue. This Agreement and the rights of the parties shall be governed by and\nconstrued and enforced in accordance with the laws of the state of Minnesota, without regard to any state's choice of law\nprinciples or rules. The venue for any action hereunder shall be in the state of Minnesota, whether or not such venue is or\nsubsequently becomes inconvenient, and the parties consent to the jurisdiction of the courts of the state of Minnesota,\ncounty of Hennepin, and the federal district courts of Minnesota.\n4.4 Counterparts. This Agreement may be executed in several counterparts and as so executed shall\nconstitute one agreement binding on the parties hereto.\n4.5 Modification by the Parties. This Agreement shall not be modified or amended except by a written\ninstrument signed by the parties. In addition, no waiver of any provision of this Agreement shall be binding unless set\nforth in a writing signed by the party effecting the waiver. Any waiver shall be limited to the circumstance or event\nspecifically referenced in the written waiver document and shall not be deemed a waiver of any other term of this\nAgreement or of the same circumstance or event upon any recurrence thereof.\n4.6 Severability'I Blue Pencil. The invalidity or partial invalidity of any portion of this Agreement shall not\ninvalidate the remainder thereof, and said remainder shall remain in full force and effect. Moreover, if one or more of the\nprovisions contained in this Agreement shall, for any reason, be held to be excessively broad as to scope, activity,\nsubject or otherwise, so as to be unenforceable at law, such provision or provisions shall be construed by the appropriate\njudicial body by limiting or reducing it or them, so as to be enforceable to the maximum extent compatible with then\napplicable law.\n4.7 Headings. The section headings contained in this Agreement are for reference purposes only and\nshall not in any way affect the meaning or interpretation of this Agreement.\nWremainder of page intentionally left blank—signature page to follow’l"""°'°l<\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date herein first above written.\nELECTROMED, INC.\nDate: October 19, 2011 /s/ Robert D. Hansen\nBy: Robert D. FIansen\nIts: Chairman/CEO\nEMPLOYEE:\nDate: October 19,2011 /s/J eremy Brock\nI eremy BFOCR	Exhibit 10.2\nNON-COMPETITION, NON-SOLICITATION, AND\nCONFIDENTIALITY AGREEMENT\nThis NON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT (the "Agreement") is\neffective as of the 18th day of October, 2011, by and between Electromed, Inc. (the "Corporation") and J eremy Brock (the\n"Employee").\nRECITALS\nA. ffective October 18, 2011, the Employee will be promoted to the position of Chief Financial Officer of the Corporation;\nB. In this position, Employee will be employed by the Corporation in a capacity in which the Employee may create or\nhave access to proprietary confidential and/or trade secret information of the Corporation; and\nB. The Corporation has expended substantial time and resources to develop proprietary confidential and/or trade secret\ninformation and to develop valuable relationships and goodwill within its industry; and\nC. The Employee recognizes that the Corporation operates in a highly competitive environment and the importance to the\nCorporation of ensuring the Employee's loyalty and protecting the Corporation's actual and prospective customers,\nbusiness relations, employees, and confidential information; and\nD. The Employee has entered into this Agreement in consideration of the Corporation and Employee entering into the\nmployment Agreement of even date which provides, among other things, for employment as Chief Financial Officer,\nincreased base salary and benefits, severance pay under those circumstances set forth in the Employment Agreement,\nand in consideration of being given access to Corporation's proprietary confidential and/or trade secret information, the\nreceipt and sufficiency of which consideration is hereby acknowledged by the Employee.\nAGREEMENT\nIn consideration of the above recitals and the promises set forth in this Agreement, the parties agree as follows:\n1. Protection of Confidential Information.\n1.1 Definition of Confidential Information. As used in this Agreement, the term "Confidential\nInformation" shall mean any information which the Employee learns or develops during the Employee's employment with\nthe Corporation that derives independent economic value from being not generally known or readily ascertainable by\nother\npersons who could obtain economic value from its disclosure or use, and includes, but is not limited to, trade\nsecrets, financial information, personnel information, and information relating to such matters as existing or contemplated\nproducts, services, profit margins, fee schedules, pricing, design, processes, formulae, business plans, sales techniques,\nmarketing techniques, training manuals\n-1-\nand materials, policies or practices related to the Corporation's business, personnel or other matters, computer\ndatabases, computer programs, software and other technology, customer lists and requirements, vendor lists, or supply\ninformation. Confidential Information includes such information of the Corporation, its customers, vendors, and other third\nparties or entities with whom the Corporation does business. Any information disclosed to the Employee or to\nwhich\nthe\nEmployee has access during the time of the Employee's employment that the Employee reasonably considers to be\nConfidential Information, or which the Corporation treats as Confidential Information, will be presumed Confidential\nInformation.\n1.2 Restrictions on Use or Disclosure of Confidential Information. The Employee shall keep the\nConfidential Information in absolute confidence both during the Employee's employment with the Corporation and after\nthe termination of the Employee's employment, regardless of the reason for such termination. The Employee agrees that\nthe Employee will not, at any time, disclose to others, use for the benefit of any entity or person other than the\nCorporation, or otherwise take or copy any such Confidential Information, whether or not developed by the Employee,\nexcept as required in the Employee's duties to the Corporation.\n1.3 Return of Confidential Information and the Corporation's Property. When the Employee's\nemployment terminates with the Corporation, regardless of the reason for such termination, the Employee will promptly\nturn over to the Corporation in good condition all Corporation property in the Employee's possession or control, including\nbut not limited to all originals, copies of, or electronically stored documents or other materials containing Confidential\nInformation, regardless of who prepared them. In the case of electronically stored information retained by the Employee\noutside of the Corporation's electronic systems, the Employee will promptly make a hard copy of such information in\npaper, audio recording, disc format, or other format as appropriate, turn that hard copy over to the Corporation, and then\ndestroy the Employee's electronically stored information.\n2. Noncompetition/Non-Solicitation.\n2.1. Acknowledgement by the Employee. The Employee acknowledges that (a) the Employee's\nservices to be performed for the Corporation are of a special and unique nature; (b) the Corporation operates in a highly\ncompetitive environment and would be substantially harmed if the Employee were to compete with the Corporation or\ndivulge its confidential information; (c) the Employee has received valuable and sufficient consideration for entering into\nthis Agreement, including but not limited to employment with the Corporation in the promoted position of Chief Financial\nOffer, and the receipt of Confidentia Information; and (d) the provisions of this Section 2, including all of its subparts, are\nreasonable and necessary to protect the Corporation's business.\n2.2. "Corporate Product" Defined. For purposes of this Agreement, "Corporate Product" means any\nproduct or service (including any component thereof and any research to develop information useful in connection with a\nproduct or service) that has been or is being designed, developed, manufactured, marketed, or sold by the Corporation or\nwith respect to which the Employee has acquired Confidential Information.\n-2-\nThe Employee understands and acknowledges that, at the present time, Corporate Products includes the\nSmartVeste Airway Clearance System and related products. The Employee understands and acknowledges that the\nforegoing description of Corporate Products may change, and the provisions of this Section 2 and all of its subparts shall\napply to the Corporate Products of the Corporation in effect upon the termination of the Employee's employment with the\nCorporation.\n2.3 "Competitive Product" Defined. For purposes hereof, "Competitive Product" means any product or\nservice (including any components thereof and any research to develop information useful in connection with the product\nor service) that is being designed, developed, manufactured, marketed, or sold by any person or entity other than the\nCorporation that is of the same general type, performs similar functions, or is used for the same purpose as a Corporate\nProduct or about which the Employee has acquired Confidential Information.\n2.4 Noncompete Obligations. The Employee agrees that, during the Employee's employment with the\nCorporation and for a period of twelve (12) months following the Employee's termination of employment with the\nCorporation, regardless of the reason for termination, the Employee will not, directly or indirectly, render services to any\nperson or entity that designs, develops, manufactures, markets, or sells a Competitive Product in any geographic area\nwhere the Corporation designs, develops, manufactures, markets, or sells a Corporate Product. It is expressly\nunderstood, however, that the Employee is free to work for a competitor of the Corporation provided that such\nemployment does not include any responsibilities for or in connection with a Competitive Product.\nThe Employee understands and acknowledges that, at the present time, the geographic market of the\nCorporation includes North America. The Employee understands and acknowledges that the foregoing description of the\nCorporation's geographic market may change, and the provisions of this Section 2 and all of its subparts shall apply to\nthe geographic market of the Corporation in effect upon the termination of the Employee's employment with the\nCorporation.\n2.5 No Solicitation of Customers. During the Employee's employment with the Corporation and for\na\nperiod of twelve (12) months after the Employee's termination of employment with the Corporation, regardless of the\nreason for such termination, the Employee agrees that the Employee shall not, directly or indirectly, solicit business from,\nwork for, or otherwise interfere with or attempt to interfere with the Corporation's relationship with any customer or\nprospective customer of the Corporation. For purposes of this Section, "customer" shall mean any purchaser of the\nCorporation's products or services within the prior twelve (12) month period and "prospective costumer" shall mean any\nperson or entity who has consulted with the Corporation about its products or services within the prior six (six) month\nperiod.\n2.6 No Solicitation of Employees or Business Contacts. During the Employee's employment with the\nCorporation and for a period of twelve (12) months after the Employee's termination of employment with the Corporation,\nregardless of the reason for such termination, the Employee agrees that the Employee shall not, directly or indirectly,\ntake any action to encourage, solicit or recruit any then-current current employee, consultant, independent contractor,\nsubcontractor, supplier, vendor, or other business relation of the Corporation to terminate or curtail their relationship with\nthe Corporation.\n-3-\n2.7 Disclosure of Obligations. The Employee agrees that, during the Employee's employment with the\nCorporation and for a period of twelve (12) months after the Employee's termination of employment with the Corporation,\nregardless of the reason for such termination, the Employee shall, prior to accepting employment or any other business\nrelationship with any other person or entity, inform that person or entity of the Employee's obligations under this Section\n2, including all of its subparts.\n3. Compliance and Remedies. The Employee recognizes that if the Employee violates this Agreement, including but not\nlimited to Paragraphs 1 and 2 of this Agreement, irreparable damage will result to the Corporation that could not\nadequately be remedied by monetary damages. As a result, the Employee hereby agrees that notwithstanding any other\ndispute resolution provisions of this Agreement, in the event of any breach by the Employee of this Agreement, including\nbut not limited to Paragraphs 1 and 2 of this Agreement, the Corporation shall be entitled, in addition to any other legal or\nequitable remedies available to it, to an injunction to restrain the Employee's violation of any portion of this Agreement.\n4. Miscellaneous.\n4.1 Integration. This Agreement embodies the entire agreement and understanding among the parties\nrelative to subject matter hereof and supersedes all prior agreements, understandings, or past practices, whether written\nor oral, relating to such subject matter.\n4.2 Survival of Sections 1 and 2. Employee's obligations set forth in Sections 1 and 2 of this\nAgreement, including all of these sections' subparts, shall survive the termination of this Agreement and Employee's\ntermination of employment with the Corporation, regardless of the reason for such terminations.\n4.3 Applicable Law; Venue. This Agreement and the rights of the parties shall be governed by and\nconstrued and enforced in accordance with the laws of the state of Minnesota, without regard to any state's choice of law\nprinciples or rules. The venue for any action hereunder shall be in the state of Minnesota, whether or not such venue is or\nsubsequently becomes inconvenient, and the parties consent to the jurisdiction of the courts of the state of Minnesota,\ncounty of Hennepin, and the federal district courts of Minnesota.\n4.4 Counterparts. This Agreement may be executed in several counterparts and as So executed shall\nconstitute one agreement binding on the parties hereto.\n4.5 Modification by the Parties. This Agreement shall not be modified or amended except by a written\ninstrument signed by the parties. In addition, no waiver of any provision of this Agreement shall be binding unless set\nforth in a writing signed by the party effecting the waiver. Any waiver shall be limited to the circumstance or event\nspecifically referenced in the written waiver document and shall not be deemed a waiver of any other term of this\nAgreement or of the same circumstance or event upon any recurrence thereof.\n-4-\n4.6\nSeverability; Blue Pencil. The invalidity or partial invalidity of any portion of this Agreement shall not\ninvalidate the remainder thereof, and said remainder shall remain in full force and effect. Moreover, if one or more of the\nprovisions contained in this Agreement shall, for any reason, be held to be excessively broad as to scope, activity,\nsubject or otherwise, so as to be unenforceable at law, such provision or provisions shall be construed by the appropriate\njudicia body by limiting or reducing it or them, so as to be enforceable to the maximum extent compatible with then\napplicable law.\n4.7 Headings. The section headings contained in this Agreement are for reference purposes only and\nshall not in any way affect the meaning or interpretation of this Agreement.\n*remainder of page intentionally left blank-signature page to follow'\n-5-\nIN\nWITNESS WHEREOF, the parties have executed this Agreement as of the date herein first above written.\nELECTROMED, INC.\nDate: October 19, 2011\n/s/ Robert D. Hansen\nBy: RObert D. Hansen\nIts: Chairman/CEO\nEMPLOYEE:\nDate: October 19, 2011\n/s/ J eremy Brock\neremy Brock\n-6-	Exhibit 10.2\nNON-COMPETITION, NON-SOLICITATION, AND\nCONFIDENTIALITY AGREEMENT\nThis NON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT (the “Agreement”) is\neffective as of the 18th day of October, 2011, by and between Electromed, Inc. (the “Corporation”) and Jeremy Brock (the\n“Employee”).\nRECITALS\nA. Effective October 18, 2011, the Employee will be promoted to the position of Chief Financial Officer of the Corporation;\nB. In this position, Employee will be employed by the Corporation in a capacity in which the Employee may create or\nhave access to proprietary confidential and/or trade secret information of the Corporation; and\nB. The Corporation has expended substantial time and resources to develop proprietary confidential and/or trade secret\ninformation and to develop valuable relationships and goodwill within its industry; and\nC. The Employee recognizes that the Corporation operates in a highly competitive environment and the importance to the\nCorporation of ensuring the Employee’s loyalty and protecting the Corporation’s actual and prospective customers,\nbusiness relations, employees, and confidential information; and\nD. The Employee has entered into this Agreement in consideration of the Corporation and Employee entering into the\nEmployment Agreement of even date which provides, among other things, for employment as Chief Financial Officer,\nincreased base salary and benefits, severance pay under those circumstances set forth in the Employment Agreement,\nand in consideration of being given access to Corporation’s proprietary confidential and/or trade secret information, the\nreceipt and sufficiency of which consideration is hereby acknowledged by the Employee.\nAGREEMENT\nIn consideration of the above recitals and the promises set forth in this Agreement, the parties agree as follows:\n1. Protection of Confidential Information.\n1.1 Definition of Confidential Information. As used in this Agreement, the term “Confidential\nInformation” shall mean any information which the Employee learns or develops during the Employee’s employment with\nthe Corporation that derives independent economic value from being not generally known or readily ascertainable by\nother persons who could obtain economic value from its disclosure or use, and includes, but is not limited to, trade\nsecrets, financial information, personnel information, and information relating to such matters as existing or contemplated\nproducts, services, profit margins, fee schedules, pricing, design, processes, formulae, business plans, sales techniques,\nmarketing techniques, training manuals\n-1-\nand materials, policies or practices related to the Corporation’s business, personnel or other matters, computer\ndatabases, computer programs, software and other technology, customer lists and requirements, vendor lists, or supply\ninformation. Confidential Information includes such information of the Corporation, its customers, vendors, and other third\nparties or entities with whom the Corporation does business. Any information disclosed to the Employee or to which the\nEmployee has access during the time of the Employee’s employment that the Employee reasonably considers to be\nConfidential Information, or which the Corporation treats as Confidential Information, will be presumed Confidential\nInformation.\n1.2 Restrictions on Use or Disclosure of Confidential Information. The Employee shall keep the\nConfidential Information in absolute confidence both during the Employee’s employment with the Corporation and after\nthe termination of the Employee’s employment, regardless of the reason for such termination. The Employee agrees that\nthe Employee will not, at any time, disclose to others, use for the benefit of any entity or person other than the\nCorporation, or otherwise take or copy any such Confidential Information, whether or not developed by the Employee,\nexcept as required in the Employee’s duties to the Corporation.\n1.3 Return of Confidential Information and the Corporation’s Property. When the Employee’s\nemployment terminates with the Corporation, regardless of the reason for such termination, the Employee will promptly\nturn over to the Corporation in good condition all Corporation property in the Employee’s possession or control, including\nbut not limited to all originals, copies of, or electronically stored documents or other materials containing Confidential\nInformation, regardless of who prepared them. In the case of electronically stored information retained by the Employee\noutside of the Corporation’s electronic systems, the Employee will promptly make a hard copy of such information in\npaper, audio recording, disc format, or other format as appropriate, turn that hard copy over to the Corporation, and then\ndestroy the Employee’s electronically stored information.\n2. Noncompetition/Non-Solicitation.\n2.1. Acknowledgement by the Employee. The Employee acknowledges that (a) the Employee’s\nservices to be performed for the Corporation are of a special and unique nature; (b) the Corporation operates in a highly\ncompetitive environment and would be substantially harmed if the Employee were to compete with the Corporation or\ndivulge its confidential information; (c) the Employee has received valuable and sufficient consideration for entering into\nthis Agreement, including but not limited to employment with the Corporation in the promoted position of Chief Financial\nOffer, and the receipt of Confidential Information; and (d) the provisions of this Section 2, including all of its subparts, are\nreasonable and necessary to protect the Corporation’s business.\n2.2. “Corporate Product” Defined. For purposes of this Agreement, “Corporate Product” means any\nproduct or service (including any component thereof and any research to develop information useful in connection with a\nproduct or service) that has been or is being designed, developed, manufactured, marketed, or sold by the Corporation or\nwith respect to which the Employee has acquired Confidential Information.\n-2-\nThe Employee understands and acknowledges that, at the present time, Corporate Products includes the\nSmartVest® Airway Clearance System and related products. The Employee understands and acknowledges that the\nforegoing description of Corporate Products may change, and the provisions of this Section 2 and all of its subparts shall\napply to the Corporate Products of the Corporation in effect upon the termination of the Employee’ s employment with the\nCorporation.\n2.3 “Competitive Product” Defined. For purposes hereof, “Competitive Product” means any product or\nservice (including any components thereof and any research to develop information useful in connection with the product\nor service) that is being designed, developed, manufactured, marketed, or sold by any person or entity other than the\nCorporation that is of the same general type, performs similar functions, or is used for the same purpose as a Corporate\nProduct or about which the Employee has acquired Confidential Information.\n2.4 Noncompete Obligations. The Employee agrees that, during the Employee’s employment with the\nCorporation and for a period of twelve (12) months following the Employee’s termination of employment with the\nCorporation, regardless of the reason for termination, the Employee will not, directly or indirectly, render services to any\nperson or entity that designs, develops, manufactures, markets, or sells a Competitive Product in any geographic area\nwhere the Corporation designs, develops, manufactures, markets, or sells a Corporate Product. It is expressly\nunderstood, however, that the Employee is free to work for a competitor of the Corporation provided that such\nemployment does not include any responsibilities for or in connection with a Competitive Product.\nThe Employee understands and acknowledges that, at the present time, the geographic market of the\nCorporation includes North America. The Employee understands and acknowledges that the foregoing description of the\nCorporation’s geographic market may change, and the provisions of this Section 2 and all of its subparts shall apply to\nthe geographic market of the Corporation in effect upon the termination of the Employee’s employment with the\nCorporation.\n2.5 No Solicitation of Customers. During the Employee’s employment with the Corporation and for a\nperiod of twelve (12) months after the Employee’s termination of employment with the Corporation, regardless of the\nreason for such termination, the Employee agrees that the Employee shall not, directly or indirectly, solicit business from,\nwork for, or otherwise interfere with or attempt to interfere with the Corporation’s relationship with any customer or\nprospective customer of the Corporation. For purposes of this Section, “customer” shall mean any purchaser of the\nCorporation’s products or services within the prior twelve (12) month period and “prospective costumer” shall mean any\nperson or entity who has consulted with the Corporation about its products or services within the prior six (six) month\nperiod.\n2.6 No Solicitation of Employees or Business Contacts. During the Employee’s employment with the\nCorporation and for a period of twelve (12) months after the Employee’s termination of employment with the Corporation,\nregardless of the reason for such termination, the Employee agrees that the Employee shall not, directly or indirectly,\ntake any action to encourage, solicit or recruit any then-current current employee, consultant, independent contractor,\nsubcontractor, supplier, vendor, or other business relation of the Corporation to terminate or curtail their relationship with\nthe Corporation.\n-3-\n2.7 Disclosure of Obligations. The Employee agrees that, during the Employee’s employment with the\nCorporation and for a period of twelve (12) months after the Employee’s termination of employment with the Corporation,\nregardless of the reason for such termination, the Employee shall, prior to accepting employment or any other business\nrelationship with any other person or entity, inform that person or entity of the Employee’s obligations under this Section\n2, including all of its subparts.\n3. Compliance and Remedies. The Employee recognizes that if the Employee violates this Agreement, including but not\nlimited to Paragraphs 1 and 2 of this Agreement, irreparable damage will result to the Corporation that could not\nadequately be remedied by monetary damages. As a result, the Employee hereby agrees that notwithstanding any other\ndispute resolution provisions of this Agreement, in the event of any breach by the Employee of this Agreement, including\nbut not limited to Paragraphs 1 and 2 of this Agreement, the Corporation shall be entitled, in addition to any other legal or\nequitable remedies available to it, to an injunction to restrain the Employee’s violation of any portion of this Agreement.\n4. Miscellaneous.\n4.1 Integration. This Agreement embodies the entire agreement and understanding among the parties\nrelative to subject matter hereof and supersedes all prior agreements, understandings, or past practices, whether written\nor oral, relating to such subject matter.\n4.2 Survival of Sections 1 and 2. Employee’s obligations set forth in Sections 1 and 2 of this\nAgreement, including all of these sections’ subparts, shall survive the termination of this Agreement and Employee’s\ntermination of employment with the Corporation, regardless of the reason for such terminations.\n4.3 Applicable Law; Venue. This Agreement and the rights of the parties shall be governed by and\nconstrued and enforced in accordance with the laws of the state of Minnesota, without regard to any state’s choice of law\nprinciples or rules. The venue for any action hereunder shall be in the state of Minnesota, whether or not such venue is or\nsubsequently becomes inconvenient, and the parties consent to the jurisdiction of the courts of the state of Minnesota,\ncounty of Hennepin, and the federal district courts of Minnesota.\n4.4 Counterparts. This Agreement may be executed in several counterparts and as so executed shall\nconstitute one agreement binding on the parties hereto.\n4.5 Modification by the Parties. This Agreement shall not be modified or amended except by a written\ninstrument signed by the parties. In addition, no waiver of any provision of this Agreement shall be binding unless set\nforth in a writing signed by the party effecting the waiver. Any waiver shall be limited to the circumstance or event\nspecifically referenced in the written waiver document and shall not be deemed a waiver of any other term of this\nAgreement or of the same circumstance or event upon any recurrence thereof.\n-4-\n4.6 Severability; Blue Pencil. The invalidity or partial invalidity of any portion of this Agreement shall not\ninvalidate the remainder thereof, and said remainder shall remain in full force and effect. Moreover, if one or more of the\nprovisions contained in this Agreement shall, for any reason, be held to be excessively broad as to scope, activity,\nsubject or otherwise, so as to be unenforceable at law, such provision or provisions shall be construed by the appropriate\njudicial body by limiting or reducing it or them, so as to be enforceable to the maximum extent compatible with then\napplicable law.\n4.7 Headings. The section headings contained in this Agreement are for reference purposes only and\nshall not in any way affect the meaning or interpretation of this Agreement.\n*****remainder of page intentionally left blank—signature page to follow*****\n-5-\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date herein first above written.\nELECTROMED, INC.\nDate: October 19, 2011\n/s/ Robert D. Hansen\nBy: Robert D. Hansen\nIts: Chairman/CEO\nEMPLOYEE:\nDate: October 19, 2011\n/s/ Jeremy Brock\nJeremy Brock\n-6-
+6db32ac59ddbeb01dc8e5d05fb922817.pdf	effective_date jurisdiction party	EXHIBIT A\nNONCOMPETITION/CONFIDENTIALITY, SEPARATION AGREEMENT AND GENERAL RELEASE\nTHIS NONCOMPETITION/CONFIDENTIALITY, SEPARATION AGREEMENT AND GENERAL RELEASE (this\n“Agreement”), is entered into by and between QUEST SOLUTION, INC., a Delaware corporation (the “Corporation”), and\nKURT THOMET, an individual (“Employee”) (collectively the “Parties”).\nWHEREAS, the Corporation operates a transaction processing automation Corporation that focuses on\nenterprise mobility for the supply chain companies in the retail, distribution, logistics, healthcare and manufacturing\nindustries (the “Business”);\nWHEREAS, Employee is a shareholder and employee of the Corporation and has acquired certain confidential\ninformation with respect to the Business;\nWHEREAS, the Corporation and Employee desire to set forth their mutual agreement with respect to all matters\nrelating to the resignation of Employee’s employment with Corporation and the parties’ mutual release of claims; and\nWHEREAS, in order to protect the Business and the goodwill associated with the Business, the Parties agree\nthat Employee should refrain from engaging in certain businesses that compete or may compete with the Business and\nfrom certain other conduct, all on the terms and conditions contained herein;\nNOW THEREFORE, in consideration of the covenants, warranties and mutual agreements herein set forth, the\npayments set forth in Section 2 hereof, one dollar cash in hand paid, and for other good and valuable consideration, the\nreceipt and adequacy of which is hereby acknowledged, the parties do hereby agree as follows:\nSection 1. Resignation of Employment\nEmployee hereby resigns his employment with Corporation, effective as of the date of his execution of this\nAgreement (“Resignation Date”). Employee acknowledges that his employment separation is properly categorized as a\nvoluntary resignation. Employee represents and warrants that he will never seek re-employment or any contractual\nservice relationship with the Corporation or any of its divisions or affiliates in the future. Employee agrees that this\nprovision is fair, just, and appropriate under all the relevant facts and circumstances.\nSection 2. Consideration\nIn consideration for Employee’s obligations under this Agreement, Employee will be entitled to receive payment\nin the gross amount of Five Thousand Dollars ($5,000), less required withholdings and deductions, from the Corporation.\nEmployee has been offered twenty-one (21) days to consider the Agreement. If Employee accepts the Agreement,\npayment will be made on the Effective Date (as defined in Section 7). The Corporation will issue Employee a Form W-2\nfor the payment made under this Section 2.\n6\nIn the event Employee breaches this Agreement, the Corporation shall be entitled to recover any and all amounts\npreviously paid to the Employee under Section 2 of this Agreement, in addition to any other remedies to which the\nCorporation may be entitled at law or in equity.\nSection 3. Release of Claims by Employee\nEmployee hereby waives, releases, and discharges the Corporation, its past and present parents, subsidiaries,\ndivisions, and affiliated companies, their respective past and present stockholders, directors, officers, agents, and\ninsurers (collectively the “Released Parties”), from any and all claims, demands, damages, and causes of action from any\nand all claims, causes of action, liabilities, costs (including attorney’s fees), obligations, and judgments of any kind,\nwhether direct or contingent in Employee’s favor, whether known or unknown, past, present, or future, whether in law or\nin equity, or otherwise and whether in contract, warranty, tort, strict liability, or otherwise, which he now has, may have\nhad at any time in the past, or may have at any time in the future arising or resulting from his employment with\nCorporation or the separation therefrom, except as set forth herein (collectively the “Released Claims”). Employee also\nrepresents and warrants that he has not sold, assigned, or transferred any Released Claim. Employee expressly\nrepresents that he has full legal authority to enter into this Agreement for himself and his heirs.\nThe Released Claims include, but are not limited to, any rights or claims in law or equity, federal, state or local,\nstatutory or common law, for breach of employment contract, wrongful termination, or past wages under applicable state\nlaw; claims relating to discrimination, harassment, retaliation, accommodation, or whistleblowing (for example, claims\nunder Title VII of the Civil Rights Act of 1964 (“Title VII”), the Civil Rights Acts of 1866 and 1871 (42 U.S .C. § 1981), the\nAmericans with Disabilities Act Amendments Act of 2008 (“ADAAA”) and the Americans with Disabilities Act of 1990\n(“ADA”), the Age Discrimination in Employment Act (“ADEA”) and the Older Workers Benefit Protection Act (“OWBPA”);\nthe Family and Medical Leave Act of 1993, the Fair Labor Standards Act of 1938, the National Labor Relations Act, the\nWorker Adjustment Retraining Notification Act of 1988, the Employee Retirement Income Security Act of 1974 (excepting\nclaims for vested benefits, if any, to which Employee is legally entitled thereunder), or any other federal, state, county or\nlocal law, statute, ordinance, decision, order, policy or regulation prohibiting employment discrimination, harassment or\nretaliation, or otherwise creating rights or claims for employees, including, but not limited to, any and all claims alleging\nbreach of public policy, the implied obligation of good faith and fair dealing, or any implied, oral or written contract,\nhandbook, manual, policy statement or employment practice, or alleging misrepresentation, defamation, interference with\ncontractual relations, intentional or negligent infliction of emotional distress, invasion of privacy, false imprisonment,\nnegligence or wrongful discharge. Provided, however, that this release does not extend to: (1) rights or claims the release\nof which is expressly prohibited by law; (2) rights that may arise after the effective date of this Agreement; and (3)\nEmployee’s right to enforce or rescind this Agreement.\nEmployee agrees that Employee will not seek and waives any right to accept any benefit or consideration from\nany source whatsoever with respect to any claims that Employee has asserted or could have asserted against the\nReleased Parties, whether filed by Employee or on Employee’s behalf. Employee further agrees that if Employee, or any\nperson or entity representing Employee, or any federal, state or local agency, files or asserts such claims, this Agreement\nwill act as a total and complete bar to recovery of any judgment, award, damages or remedy of any kind, except where\nexpressly prohibited by law.\n7\nEmployee understands that he is releasing the Released Parties from claims that he may not know about as of\nthe date of the execution of this Agreement, and that it is his knowing and voluntary intent even though Employee\nrecognizes that someday he might learn that some or all of the facts he currently believes to be true are untrue and even\nthough he might then regret having signed this Agreement. Nevertheless, Employee understands that he is expressly\nassuming that risk and agrees that this Agreement shall remain effective in all respects in any such case. Employee\nexpressly and completely waives all rights he might have under any law that is intended to protect him from waiving\nunknown claims, and Employee understands the significance of doing so.\nEmployee represents that neither Employee nor, to his knowledge, any person or entity acting on Employee’s\nbehalf or with Employee’s authority has asserted with any federal, state or local judicial or administrative body any claim\nof any kind based on or arising out of any aspect of Employee’s employment with the Corporation or the ending of that\nemployment. Employee further represents that he is not participating, either directly or indirectly, in any investigations,\nproceedings, actions, or claims against the Corporation.\nEmployee hereby specifically covenants and agrees that he shall not initiate, or cause to be initiated, any action\nor cause of action against the Released Parties in the future asserting any claims released in this Agreement, except that\nthe foregoing shall not preclude Employee from filing a charge of discrimination as allowed by law.\nTo his actual knowledge, as of the Effective Date without any additional investigation, Employee has disclosed to\nthe Corporation any matters for which he was responsible as an employee of the Corporation that are reasonably likely to\ngive rise to, evidence, or support any claim of unlawful, unethical, or improper conduct, regulatory violation, unlawful\ndiscrimination, retaliation, or other cause of action against the Corporation. Employee will not be considered in breach of\nthe foregoing with respect to any matter within the actual knowledge without any additional investigation of Jason F.\nGriffith, Scot Ross, and Thomas Miller, or any of them, on or before the Effective Date.\nEmployee acknowledges and agrees that with the exception of his final wages, which will be paid in accordance\nwith the Corporation’s usual payroll practices and in accordance with state law, no other payments, commissions,\nbonuses, or benefits will be made by Corporation to Employee based on Employee’s employment by Corporation; and\nEmployee acknowledges that he has no entitlement to, or any right to make any claim for, any additional payments,\ncommissions, bonuses, or benefits by Corporation of any kind whatsoever, that are due based on Employee’s\nemployment by Corporation. Employee’s eligibility for coverage as an active employee under all employee benefit plans\nmaintained by Corporation terminate on the Resignation Date. Employee may purchase, if eligible, continuation of health\nbenefits coverage to the extent and for the period provided by law.\n8\nSection 4. Release of Claims by Corporation\nFor, and in consideration of the promises contained herein, the sufficiency, adequacy, and receipt of all of which\nconsideration is hereby expressly acknowledged, Corporation releases and discharges Employee from any and all\nobligations, claims, damages, demands, liabilities, equities, actions, causes of actions and legal theories of whatever\nkind, in law or in equity, in contract or tort or public policy, both known and unknown, suspected and unsuspected,\ndisclosed and undisclosed, actual and consequential, specific and general, however denominated, from the beginning of\ntime up to and including the time of the signing of this Agreement; whether for income from any source, declaratory or\ninjunctive relief, compensatory or punitive damages, wages, severance benefits, money, remuneration, emotional\ndistress, injunctive relief, costs, expenses, attorneys’ fees, or thing of any value whatsoever, by Corporation against\nEmployee, including but not limited to any claims arising out of or resulting from Employee’s employment with\nCorporation, and any other matter between Employee and Corporation. Provided, however, that Corporation is not\nreleasing any claim that relates to (1) its right to enforce this Agreement; (2) any rights or claims that arise after the\nexecution of this Agreement; or (3) any rights that it cannot lawfully release.\nSection 5. Noncompetition; Confidentiality; Non-Disparagement\nEmployee agrees that for a period of six (6) months, beginning with the execution of this Agreement (the\n“Covenant Period”), Employee will not, without the prior written consent of the Corporation in each instance: (1)\nparticipate or engage, directly or indirectly, in the ownership, management, operation, or control of, or work for as an\nemployee, independent contractor or consultant, or be connected as a partner, member, owner, investor, lender or\notherwise, with, or have any financial interest in, or aid or assist anyone else in the conduct of any of the businesses or\ncustomers described on Schedule I, attached hereto; or (2) directly or indirectly, employ, offer to employ, recruit, solicit,\nentice away, or in any other manner persuade or attempt to persuade any employee or independent contractor of the\nCorporation or any person who, at any time during the twelve (12) months preceding the date in question, was an\nemployee, independent contractor, patient or customer of the Corporation or the Business, to discontinue the relationship\nwith the Corporation.\nEmployee agrees that, for a period of two (2) years after execution of this Agreement, he will hold and keep\nconfidential all Confidential Information (as defined below) to which Employee, at any time shall have become informed,\nand that he will not, directly or indirectly, disclose any Confidential Information to any person, firm, corporation or entity,\nor use the same, or permit the same to be disclosed or used. “Confidential Information” as used herein means proprietary\ninformation directly relating to the Corporation or developed exclusively by the Corporation or developed for the use of\nthe Corporation or the Business and shall include, without limitation, the following types of information regarding the\nCorporation or the Business: corporate information, including business information, plans, strategies, tactics, or policies;\nmarketing information, including strategies, tactics, methods, customer and patient lists, prospects, and market research\ndata; financial data or forecasts; policies or procedures; know-how and ideas; operational information, including trade\nsecrets; technical information, including designs, drawings and specifications; and any proprietary compounding\ninformation. Confidential Information is limited to that information which is not generally known to the public (other than as\na result of unauthorized disclosure by Employee) or within the industry of which the businesses described in Schedule I\nare a part.\n9\nEmployee expressly represents and warrants that he shall not disclose the existence or terms of this Agreement\nto any third person without the prior express written consent of the Corporation. Notwithstanding the foregoing, Employee\nmay disclose the existence and/or terms of this Agreement: (1) to his attorneys or accountants, to the extent that such\ndisclosure is necessary in the preparation of his tax returns; (2) pursuant to a securities regulatory request or to comply\nwith a securities regulatory requirement or other legal obligation; (3) pursuant to a duly-issued court or arbitration order;\nand (4) if the existence and/or terms of this Agreement have previously become disclosed by Corporation in a public\nfiling. In the case of a disclosure required pursuant to a duly-issued court or arbitration order, Employee or his attorneys\nshall at the earliest opportunity notify Corporation of any request or order compelling disclosure of any of the terms of this\nAgreement so as to allow Corporation an opportunity to take appropriate action to protect their interests. In the case of a\ndisclosure required pursuant to a securities regulatory request, Employee or his attorneys shall at the earliest opportunity\nnotify Corporation of any request.\nSection 6. Reasonableness; Severability\nEmployee acknowledges and agrees that the restrictions placed on Employee and the rights and remedies\nconferred on the Corporation are reasonable in time, scope, and territory and are fully required to protect the legitimate\nbusiness interests of the Corporation without a disproportionate detriment to Employee. If any provision of this\nAgreement shall, for any reason, be adjudged by any court of competent jurisdiction to be invalid or unenforceable (i)\nsuch provision shall remain in force and effect to the maximum extent allowable, if any, (ii) such judgment shall not affect,\nimpair, or invalidate the remainder of this Agreement, but shall be confined in its operation to the provision of this\nAgreement directly involved in the controversy in which such judgment shall have been rendered, and (iii) the\nenforceability or validity of the remaining provisions of this Agreement shall not be affected thereby. If a court finds that\nany provision of this Agreement is invalid or unenforceable, but that modification of such provision will make it valid or\nenforceable, then such provision shall be deemed to be so modified.\nSection 7. Waiver of Age Discrimination Claims/Revocation Period/Effective Date\nEmployee specifically represents that he has read and understands this Agreement and Release, and has been\noffered a minimum of twenty-one (21) days to consider the Agreement before he has to execute it and understands fully\nthe final and binding effect of this Agreement. Employee further agrees that the only promises made to him to sign this\nAgreement are those stated in the Agreement and that he has signed this Agreement voluntarily with the full intent of\nreleasing the Corporation and Released Parties from any and all claims relating to or arising out of his employment with\nthe Corporation. Employee acknowledges that he was advised to consult an attorney, hired by him, to review the\nAgreement and provide advice about it, and he has done so to the extent he desires. In accordance with federal law, this\nAgreement may be revoked by Employee at any time within seven (7) days after the date the Agreement is signed by\nEmployee (the “Revocation Period”). If Employee wishes to revoke this Release, he must revoke it in writing delivered by\nhand delivery or by electronic mail prior to the end of the Revocation Period to Tom Miller, CEO,\ntmiller@questsolution.com; 870 Conger Street, Eugene, OR 97402, or the revocation will not be effective. If Employee\nrevokes his acceptance, none of the rights or obligations set forth in this Agreement will take effect. If Employee does not\nrevoke his acceptance, the Agreement shall become fully effective and enforceable immediately upon expiration of the\nRevocation Period (the “Effective Date”). Employee expressly understands that he is knowingly and voluntarily\nwaiving any claim for age discrimination that he may have under the Age Discrimination in Employment Act;\nFinally, Employee agrees and acknowledges that if he signs this Agreement before the expiration of said twenty-one (21)\nday period referred to hereinabove, that he has affirmatively waived such twenty-one (21) day minimum period, but will\nstill have the seven (7) calendar days within which to revoke this Agreement.\n10\nSection 8. Waiver\nNo consent or waiver, express or implied, by either party with respect to any breach or default by any other party\nin the performance of any other party’s obligations hereunder shall be deemed or construed to be a consent or waiver\nwith respect to any other breach or default in the performance of the same or any other obligation of such other party\nhereunder. A party’s failure to complain of any act or failure to act of any other party or to declare any other party in\ndefault, irrespective of how long such failure continues, shall not constitute a waiver by such party of any rights\nhereunder. The giving of consent by a party in any one instance shall not limit or waive the necessity of obtaining such\nparty’s consent in any future instance. Any consent required to be given hereunder shall be in writing unless otherwise\nprovided herein.\nSection 9. Taxes\nThe Corporation will be responsible for payroll deductions that it would normally be responsible for in connection\nwith a severance agreement to an employee. Employee agrees that he is ultimately and solely responsible for paying the\ncorrect amount of taxes he may owe on any amounts he receives in connection with this Agreement.\nSection 10. Miscellaneous\nThis Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of\nOregon (without regard to the conflicts of laws principles thereof). All sections and descriptive headings of sections and\nsubsections in this Agreement are inserted for convenience only, and shall not affect the construction or interpretation\nhereof. This Agreement may not be modified or amended or any term or provision hereof waived or discharged except in\nwriting signed by the party against whom such amendment, modification, waiver, or discharge is sought to be enforced.\nEach party shall bear its own attorney’s fees in connection with the preparation and review of this Agreement. All of the\nterms of this Agreement, whether so expressed or not, shall be binding upon the successors and assigns of the parties\nhereto and shall inure to the benefit of and be enforceable by the parties hereto and their respective successors and\nassigns. This Agreement and the payments required under Section 2 shall automatically cease upon the death of\nEmployee. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all\nof which together shall constitute one and the same instrument.\n11\nIN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year executed\nby Employee, below.\nQUEST SOLUTION, INC.\nPrinted Name: Thomas Miller\nSignature:\n/s/ Thomas Miller\nDate:\n08/27/2015\nKURT THOMET, AN INDIVIDUAL\nPrinted Name: Kurt Thomet\nSignature:\n/s/ Kurt Thomet\nDate:\n08/26/2015\n12	EXHIBIT A\nNONCOMPETITION/CONFIDENTIALITY, SEPARATION AGREEMENT AND GENERAL RELEASE\nTHIS NONCOMPETITION/CONFIDENTIALITY, SEPARATION AGREEMENT AND GENERAL RELEASE (this\n“Agreement”), is entered into by and between QUEST SOLUTION, INC., a Delaware corporation (the “Corporation”), and\nKURT THOMET, an individual (“Employee”) (collectively the “Parties”).\nWHEREAS, the Corporation operates a transaction processing automation Corporation that focuses on\nenterprise mobility for the supply chain companies in the retail, distribution, logistics, healthcare and manufacturing\nindustries (the “Business”);\nWHEREAS, Employee is a shareholder and employee of the Corporation and has acquired certain confidential\ninformation with respectto the Business;\nWHEREAS, the Corporation and Employee desire to set forth their mutual agreement with respect to all matters\nrelating to the resignation of Employee's employment with Corporation and the parties' mutual release of claims; and\nWHEREAS, in order to protect the Business and the goodwill associated with the Business, the Parties agree\nthat Employee should refrain from engaging in certain businesses that compete or may compete with the Business and\nfrom certain other conduct, all on the terms and conditions contained herein;\nNOW THEREFORE, in consideration of the covenants, warranties and mutual agreements herein set forth, the\npayments set forth in Section 2 hereof, one dollar cash in hand paid, and for other good and valuable consideration, the\nreceipt and adequacy of which is hereby acknowledged, the parties do hereby agree as follows:\nSection 1. Resignation of Employment\nEmployee hereby resigns his employment with Corporation, effective as of the date of his execution of this\nAgreement (“Resignation Date”). Employee acknowledges that his employment separation is properly categorized as a\nvoluntary resignation. Employee represents and warrants that he will never seek re-employment or any contractual\nservice relationship with the Corporation or any of its divisions or affiliates in the future. Employee agrees that this\nprovision is fair, just, and appropriate under all the relevant facts and circumstances.\nSection 2. Consideration\nIn consideration for Employee's obligations under this Agreement, Employee will be entitled to receive payment\nin the gross amount of Five Thousand Dollars ($5,000), less required withholdings and deductions, from the Corporation.\nEmployee has been offered twenty-one (21) days to consider the Agreement. If Employee accepts the Agreement,\npayment will be made on the Effective Date (as defined in Section 7). The Corporation will issue Employee a Form W-2\nforthe payment made under this Section 2.\nIn the event Employee breaches this Agreement, the Corporation shall be entitled to recover any and all amounts\npreviously paid to the Employee under Section 2 of this Agreement, in addition to any other remedies to which the\nCorporation may be entitled at law or in equity.\nSection 3. Release of Claims by Employee\nEmployee hereby waives, releases, and discharges the Corporation, its past and present parents, subsidiaries,\ndivisions, and affiliated companies, their respective past and present stockholders, directors, officers, agents, and\ninsurers (collectively the “Released Parties”), from any and all claims, demands, damages, and causes ofaction from any\nand all claims, causes of action, liabilities, costs (including attorney's fees), obligations, and judgments of any kind,\nwhether direct or contingent in Employee's favor, whether known or unknown, past, present, or future, whether in law or\nin equity, or otherwise and whether in contract, warranty, tort, strict liability, or otherwise, which he now has, may have\nhad at any time in the past, or may have at any time in the future arising or resulting from his employment with\nCorporation or the separation therefrom, except as set forth herein (collectively the “Released Claims”). Employee also\nrepresents and warrants that he has not sold, assigned, or transferred any Released Claim. Employee expressly\nrepresents that he has full legal authority to enter into this Agreement for himself and his heirs.\nThe Released Claims include, but are not limited to, any rights or claims in law or equity, federal, state or local,\nstatutory or common law, for breach of employment contract, wrongful termination, or past wages under applicable state\nlaw; claims relating to discrimination, harassment, retaliation, accommodation, or whistleblowing (for example, claims\nunder Title VII of the Civil Rights Act of 1964 ('Title VII”), the Civil Rights Acts of 1866 and 1871 (42 U.S.C.§ 1981), the\nAmericans with Disabilities Act Amendments Act of 2008 (“ADAAA”) and the Americans with Disabilities Act of 1990\n(“ADA”), the Age Discrimination in Employment Act (“ADEA”) and the Older Workers Benefit Protection Act (“OWBPA”);\nthe Family and Medical Leave Act of 1993, the Fair Labor Standards Act of 1938, the National Labor Relations Act, the\nWorker Adjustment Retraining Notification Act of 1988, the Employee Retirement Income Security Act of 1974 (excepting\nclaims for vested benefits, if any, to which Employee is legally entitled thereunder), or any other federal, state, county or\nlocal law, statute, ordinance, decision, order, policy or regulation prohibiting employment discrimination, harassment or\nretaliation, or otherwise creating rights or claims for employees, including, but not limited to, any and all claims alleging\nbreach of public policy, the implied obligation of good faith and fair dealing, or any implied, oral or written contract,\nhandbook, manual, policy statement or employment practice, or alleging misrepresentation, defamation, interference with\ncontractual relations, intentional or negligent infliction of emotional distress, invasion of privacy, false imprisonment,\nnegligence or wrongful discharge. Provided, however, that this release does not extend to: (1) rights or claims the release\nof which is expressly prohibited by law; (2) rights that may arise after the effective date of this Agreement; and (3)\nEmployee's right to enforce or rescind this Agreement.\nEmployee agrees that Employee will not seek and waives any right to accept any benefit or consideration from\nany source whatsoever with respect to any claims that Employee has asserted or could have asserted against the\nReleased Parties, whetherfiled by Employee or on Employee's behalf. Employee further agrees that if Employee, or any\nperson or entity representing Employee, or any federal, state or local agency, files or asserts such claims, this Agreement\nwill act as a total and complete bar to recovery of any judgment, award, damages or remedy of any kind, except where\nexpressly prohibited by law.\nEmployee understands that he is releasing the Released Parties from claims that he may not know about as of\nthe date of the execution of this Agreement, and that it is his knowing and voluntary intent even though Employee\nrecognizes that someday he might learn that some or all ofthe facts he currently believes to be true are untrue and even\nthough he might then regret having signed this Agreement. Nevertheless, Employee understands that he is expressly\nassuming that risk and agrees that this Agreement shall remain effective in all respects in any such case. Employee\nexpressly and completely waives all rights he might have under any law that is intended to protect him from waiving\nunknown claims, and Employee understands the significance ofdoing so.\nEmployee represents that neither Employee nor, to his knowledge, any person or entity acting on Employee's\nbehalf or with Employee's authority has asserted with any federal, state or local judicial or administrative body any claim\nof any kind based on or arising out of any aspect of Employee's employment with the Corporation or the ending of that\nemployment. Employee further represents that he is not participating, either directly or indirectly, in any investigations,\nproceedings, actions, or claims againstthe Corporation.\nEmployee hereby specifically covenants and agrees that he shall not initiate, or cause to be initiated, any action\nor cause of action againstthe Released Parties in the future asserting any claims released in this Agreement, except that\nthe foregoing shall not preclude Employee from filing a charge ofdiscrimination as allowed by law.\nTo his actual knowledge, as of the Effective Date without any additional investigation, Employee has disclosed to\nthe Corporation any matters for which he was responsible as an employee of the Corporation that are reasonably likely to\ngive rise to, evidence, or support any claim of unlawful, unethical, or improper conduct, regulatory violation, unlawful\ndiscrimination, retaliation, or other cause of action against the Corporation. Employee will not be considered in breach of\nthe foregoing with respect to any matter within the actual knowledge without any additional investigation ofJason F.\nGriffith, Scot Ross, and Thomas Miller, or any of them, on or before the Effective Date.\nEmployee acknowledges and agrees that with the exception of his final wages, which will be paid in accordance\nwith the Corporation's usual payroll practices and in accordance with state law, no other payments, commissions,\nbonuses, or benefits will be made by Corporation to Employee based on Employee's employment by Corporation; and\nEmployee acknowledges that he has no entitlement to, or any right to make any claim for, any additional payments,\ncommissions, bonuses, or benefits by Corporation of any kind whatsoever, that are due based on Employee's\nemployment by Corporation. Employee's eligibility for coverage as an active employee under all employee benefit plans\nmaintained by Corporation terminate on the Resignation Date. Employee may purchase, if eligible, continuation of health\nbenefits coverage to the extent and forthe period provided by law.\nSection 4. Release of Claims by Corporation\nFor, and in consideration of the promises contained herein, the sufficiency, adequacy, and receipt of all of which\nconsideration is hereby expressly acknowledged, Corporation releases and discharges Employee from any and all\nobligations, claims, damages, demands, liabilities, equities, actions, causes of actions and legal theories of whatever\nkind, in law or in equity, in contract or tort or public policy, both known and unknown, suspected and unsuspected,\ndisclosed and undisclosed, actual and consequential, specific and general, however denominated, from the beginning of\ntime up to and including the time of the signing of this Agreement; whether for income from any source, declaratory or\ninjunctive relief, compensatory or punitive damages, wages, severance benefits, money, remuneration, emotional\ndistress, injunctive relief, costs, expenses, attorneys' fees, or thing of any value whatsoever, by Corporation against\nEmployee, including but not limited to any claims arising out of or resulting from Employee's employment with\nCorporation, and any other matter between Employee and Corporation. Provided, however, that Corporation is not\nreleasing any claim that relates to (1) its right to enforce this Agreement; (2) any rights or claims that arise after the\nexecution of this Agreement; or (3) any rights that it cannot lawfully release.\nSection 5. Noncompetition; Confidentiality; Non-Disparagement\nEmployee agrees that for a period of six (6) months, beginning with the execution of this Agreement (the\n“Covenant Period”), Employee will not, without the prior written consent of the Corporation in each instance: (1)\nparticipate or engage, directly or indirectly, in the ownership, management, operation, or control of, or work for as an\nemployee, independent contractor or consultant, or be connected as a partner, member, owner, investor, lender or\notherwise, with, or have any financial interest in, or aid or assist anyone else in the conduct of any of the businesses or\ncustomers described on Schedule I, attached hereto; or (2) directly or indirectly, employ, offer to employ, recruit, solicit,\nentice away, or in any other manner persuade or attempt to persuade any employee or independent contractor of the\nCorporation or any person who, at any time during the twelve (12) months preceding the date in question, was an\nemployee, independent contractor, patient or customer of the Corporation orthe Business, to discontinue the relationship\nwith the Corporation.\nEmployee agrees that, for a period of two (2) years after execution of this Agreement, he will hold and keep\nconfidential all Confidential Information (as defined below) to which Employee, at any time shall have become informed,\nand that he will not, directly or indirectly, disclose any Confidential Information to any person, firm, corporation or entity,\nor use the same, or permit the same to be disclosed or used. “Confidential Information”as used herein means proprietary\ninformation directly relating to the Corporation or developed exclusively by the Corporation or developed for the use of\nthe Corporation or the Business and shall include, without limitation, the following types of information regarding the\nCorporation orthe Business: corporate information, including business information, plans, strategies, tactics, or policies;\nmarketing information, including strategies, tactics, methods, customer and patient lists, prospects, and market research\ndata; financial data or forecasts; policies or procedures; know-how and ideas; operational information, including trade\nsecrets; technical information, including designs, drawings and specifications; and any proprietary compounding\ninformation. Confidential Information is limited to that information which is not generally known to the public (other than as\na result of unauthorized disclosure by Employee) or within the industry of which the businesses described in Schedule I\nare a part.\nEmployee expressly represents and warrants that he shall not disclose the existence or terms of this Agreement\nto any third person without the prior express written consent of the Corporation. Notwithstanding the foregoing, Employee\nmay disclose the existence and/or terms of this Agreement: (1) to his attorneys or accountants, to the extent that such\ndisclosure is necessary in the preparation of his tax returns; (2) pursuant to a securities regulatory request or to comply\nwith a securities regulatory requirement or other legal obligation; (3) pursuant to a duly-issued court or arbitration order;\nand (4) if the existence and/or terms of this Agreement have previously become disclosed by Corporation in a public\nfiling. In the case of a disclosure required pursuant to a duly-issued court or arbitration order, Employee or his attorneys\nshall atthe earliest opportunity notify Corporation of any request or order compelling disclosure of any of the terms of this\nAgreement so as to allow Corporation an opportunity to take appropriate action to protecttheir interests. In the case of a\ndisclosure required pursuant to a securities regulatory request, Employee or his attorneys shall atthe earliest opportunity\nnotify Corporation of any request.\nSection 6. Reasonableness; Severability\nEmployee acknowledges and agrees that the restrictions placed on Employee and the rights and remedies\nconferred on the Corporation are reasonable in time, scope, and territory and are fully required to protect the legitimate\nbusiness interests of the Corporation without a disproportionate detriment to Employee. If any provision of this\nAgreement shall, for any reason, be adjudged by any court of competent jurisdiction to be invalid or unenforceable (i)\nsuch provision shall remain in force and effect to the maximum extent allowable, if any, (ii) such judgment shall not affect,\nimpair, or invalidate the remainder of this Agreement, but shall be confined in its operation to the provision of this\nAgreement directly involved in the controversy in which such judgment shall have been rendered, and (iii) the\nenforceability or validity of the remaining provisions of this Agreement shall not be affected thereby. If a court finds that\nany provision of this Agreement is invalid or unenforceable, but that modification of such provision will make it valid or\nenforceable, then such provision shall be deemed to be so modified.\nSection 7. Waiver onge Discrimination Claims/Revocation Period/Effective Date\nEmployee specifically represents that he has read and understands this Agreement and Release, and has been\noffered a minimum of twenty-one (21) days to consider the Agreement before he has to execute it and understands fully\nthe final and binding effect of this Agreement. Employee further agrees that the only promises made to him to sign this\nAgreement are those stated in the Agreement and that he has signed this Agreement voluntarily with the full intent of\nreleasing the Corporation and Released Parties from any and all claims relating to or arising out of his employment with\nthe Corporation. Employee acknowledges that he was advised to consult an attorney, hired by him, to review the\nAgreement and provide advice about it, and he has done so to the extent he desires. In accordance with federal law, this\nAgreement may be revoked by Employee at any time within seven (7) days after the date the Agreement is signed by\nEmployee (the “Revocation Period”). If Employee wishes to revoke this Release, he must revoke it in writing delivered by\nhand delivery or by electronic mail prior to the end of the Revocation Period to Tom Miller, CEO,\ntmiller@questsolution.com; 870 Conger Street, Eugene, OR 97402, or the revocation will not be effective. If Employee\nrevokes his acceptance, none of the rights or obligations set forth in this Agreement will take effect. If Employee does not\nrevoke his acceptance, the Agreement shall become fully effective and enforceable immediately upon expiration of the\nRevocation Period (the “Effective Date”). Employee expressly understands that he is knowingly and voluntarily\nwaiving any claim for age discrimination that he may have under the Age Discrimination in Employment Act;\nFinall , Em lo ee a rees and acknowled es that if he si ns this A reement before the ex iration of said twen -one 21\nday period referred to hereinabove, that he has affirmativer waived such twenty-one (21) day minimum period, but will\nstill have the seven (7) calendar days within which to revoke this Agreement.\n10\nSection 8. Waiver\nNo consent or waiver, express or implied, by either party with respect to any breach or default by any other party\nin the performance of any other party's obligations hereunder shall be deemed or construed to be a consent or waiver\nwith respect to any other breach or default in the performance of the same or any other obligation of such other party\nhereunder. A party's failure to complain of any act or failure to act of any other party or to declare any other party in\ndefault, irrespective of how long such failure continues, shall not constitute a waiver by such party of any rights\nhereunder. The giving of consent by a party in any one instance shall not limit or waive the necessity of obtaining such\nparty's consent in any future instance. Any consent required to be given hereunder shall be in writing unless otherwise\nprovided herein.\nSection 9. Taxes\nThe Corporation will be responsible for payroll deductions that it would normally be responsible for in connection\nwith a severance agreement to an employee. Employee agrees that he is ultimately and solely responsible for paying the\ncorrect amount of taxes he may owe on any amounts he receives in connection with this Agreement.\nSection 10. Miscellaneous\nThis Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of\nOregon (without regard to the conflicts of laws principles thereof). All sections and descriptive headings of sections and\nsubsections in this Agreement are inserted for convenience only, and shall not affect the construction or interpretation\nhereof. This Agreement may not be modified or amended or any term or provision hereof waived or discharged except in\nwriting signed by the party against whom such amendment, modification, waiver, or discharge is sought to be enforced.\nEach party shall bear its own attorney's fees in connection with the preparation and review of this Agreement. All of the\nterms of this Agreement, whether so expressed or not, shall be binding upon the successors and assigns of the parties\nhereto and shall inure to the benefit of and be enforceable by the parties hereto and their respective successors and\nassigns. This Agreement and the payments required under Section 2 shall automatically cease upon the death of\nEmployee. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all\nof which together shall constitute one and the same instrument.\nll\nIN WITNESS WHEREOF, the parties hereto have duly executed this Agreementas of the day and year executed\nby Employee, below.\nQUEST SOLUTION, INC.\nPrinted Name: Thomas Miller\nSignature: /s/Thomas Miller\nDate: 08/27/2015\nKURT THO MET, AN INDIVIDUAL\nPrinted Name: Kurt Thomet\nSignature: /s/ Kurt Thomet\nDate: 08/26/2015\n12	EXHIBIT A\nNONCOMPETITION/CONFIDENTIALITY,S SEPARATION AGREEMENT AND GENERAL RELEASE\nTHIS NONCOMPETITION/CONFIDENTIALITY, SEPARATION AGREEMENT AND GENERAL RELEASE (this\n"Agreement"), is entered into by and between QUEST SOLUTION, INC., a Delaware corporation (the "Corporation"), and\nKURT THOMET, an individual ("Employee") (collectively the "Parties").\nWHEREAS, the Corporation operates a transaction processing automation Corporation that focuses on\nenterprise mobility for the supply chain companies in the retail, distribution, logistics, healthcare and manufacturing\nindustries (the "Business");\nWHEREAS, Employee is a shareholder and employee of the Corporation and has acquired certain confidential\ninformation with respect to the Business;\nWHEREAS, the Corporation and Employee desire to set forth their mutual agreement with respect to all matters\nrelating to the resignation of Employee's employment with Corporation and the parties' mutual release of claims; and\nWHEREAS, in order to protect the Business and the goodwill associated with the Business, the Parties agree\nthat Employee should refrain from engaging in certain businesses that compete or may compete with the Business and\nfrom certain other conduct, all on the terms and conditions contained herein;\nNOW THEREFORE, in consideration of the covenants, warranties and mutual agreements herein set forth, the\npayments set forth in Section 2 hereof, one dollar cash in hand paid, and for other good and valuable consideration, the\nreceipt and adequacy of which is hereby acknowledged, the parties do hereby agree as follows:\nSection 1. Resignation of Employment\nEmployee hereby resigns his employment with Corporation, effective as of the date of his execution of this\nAgreement ("Resignation Date"). Employee acknowledges that his employment separation is properly categorized as a\nvoluntary resignation. Employee represents and warrants that he will never seek re-employment or any contractual\nservice relationship with the Corporation or any of its divisions or affiliates in the future. Employee agrees that this\nprovision is fair, just, and appropriate under all the relevant facts and circumstances.\nSection 2. Consideration\nIn consideration for :mployee's obligations under this Agreement, Employee will be entitled to receive payment\nin the gross amount of Five Thousand Dollars ($5,000), less required withholdings and deductions, from the Corporation.\nEmployee has been offered twenty-one (21) days to consider the Agreement. If Employee accepts the Agreement,\npayment will be made on the Effective Date (as defined in Section 7) The Corporation will issue Employee a Form W-2\nfor the payment made under this Section 2.\n6\nIn the event E mployee breaches this Agreement, the Corporation shall be entitled to recover any and all amounts\npreviously paid to the Employee under Section 2 of this Agreement, in addition to any other remedies to which the\nCorporation may be entitled at law or in equity.\nSection 3. Release of Claims by Employee\nEmployee hereby waives, releases, and discharges the Corporation, its past and present parents, subsidiaries,\ndivisions, and affiliated companies, their respective past and present stockholders, directors, officers, agents, and\ninsurers (collectively the "Released Parties"), from any and all claims, demands, damages, and causes of action from any\nand\nall\nclaims,\ncauses\nof\naction,\nliabilities,\ncosts\n(including\nattorney's\nfees),\nobligations,\nand\njudgments\nof\nany\nkind,\nwhether direct or contingent in Employee's favor, whether known or unknown, past, present, or future, whether in law or\nin equity, or otherwise and whether in contract, warranty, tort, strict liability, or otherwise, which he now has, may have\nhad at any time in the past, or may have at any time in the future arising or resulting from his employment with\nCorporation or the separation therefrom, except as set forth herein (collectively the "Released Claims"). Employee also\nrepresents and warrants that he has not sold, assigned, or transferred any Released Claim. Employee expressly\nrepresents that he has ful legal authority to enter into this Agreement for himself and his heirs.\nThe Released Claims include, but are not limited to, any rights or claims in law or equity, federal, state or local,\nstatutory or common law, for breach of employment contract, wrongful termination, or past wages under applicable state\nlaw; claims relating to discrimination, harassment, retaliation, accommodation, or whistleblowing (for example, claims\nunder Title VII of the Civil Rights Act of 1964 ('Title VII"), the Civil Rights Acts of 1866 and 1871 (42 U.S.C. 1981), the\nAmericans with Disabilities Act Amendments Act of 2008 ("ADAAA") and the Americans with Disabilities Act of 1990\n("ADA"), the Age Discrimination in E mployment Act ("ADEA") and the Older Workers Benefit rotection Act ("OWBPA");\nthe Family and Medica Leave Act of 1993, the Fair Labor Standards Act of 1938, the National Labor Relations Act, the\nWorker Adjustment Retraining Notification Act of 1988, the Employee Retirement Income Security Act of 1974 (excepting\nclaims\nfor\nvested\nbenefits,\nif\nany,\nto\nwhich\nE\nmployee\nis\nlegally\nentitled\nthereunder),\nor\nany\nother\nfederal,\nstate,\ncounty\nor\nlocal law, statute, ordinance, decision, order, policy or regulation prohibiting employment discrimination, harassment or\nretaliation, or otherwise creating rights or claims for employees, including, but not limited to, any and all claims alleging\nbreach of public policy, the implied obligation of good faith and fair dealing, or any implied, oral or written contract,\nhandbook, manual, policy statement or employment practice, or alleging misrepresentation, defamation, interference with\ncontractual relations, intentional or negligent infliction of emotional distress, invasion of privacy, false imprisonment,\nnegligence or wrongful discharge. Provided, however, that this release does not extend to: (1) rights or claims the release\nof which is expressly prohibited by law; (2) rights that may arise after the effective date of this Agreement; and (3)\nEmployee's right to enforce or rescind this Agreement.\nEmployee agrees that mployee will not seek and waives any right to accept any benefit or consideration from\nany source whatsoever with respect to any claims that Employee has asserted or could have asserted against the\nReleased Parties, whether filed by Employee or on Employee's behalf. mployee further agrees that if mployee, or any\nperson or entity representing mployee, or any federal, state or local agency, files or asserts such claims, this Agreement\nwil act as a total and complete bar to recovery of any judgment, award, damages or remedy of any kind, except where\nexpressly prohibited by law.\n7\nEmployee understands that he is releasing the Released arties from claims that he may not know about as of\nthe date of the execution of this Agreement, and that it is his knowing and voluntary intent even though Employee\nrecognizes that someday he might learn that some or all of the facts he currently believes to be true are untrue and even\nthough he might then regret having signed this Agreement. Nevertheless, Employee understands that he is expressly\nassuming that risk and agrees that this Agreement shall remain effective in all respects in any such case. Employee\nexpressly and completely waives all rights he might have under any law that is intended to protect him from waiving\nunknown claims, and mployee understands the significance of doing so.\nEmployee represents that neither Employee nor, to his knowledge, any person or entity acting on Employee's\nbehalf or with Employee's authority has asserted with any federal, state or local judicial or administrative body any claim\nof any kind based on or arising out of any aspect of Employee's employment with the Corporation or the ending of that\nemployment. E mployee further represents that he is not participating, either directly or indirectly, in any investigations,\nproceedings, actions, or claims against the Corporation.\nEmployee hereby specifically covenants and agrees that he shall not initiate, or cause to be initiated, any action\nor cause of action against the Released Parties in the future asserting any claims released in this Agreement, except that\nthe foregoing shall not preclude Employee from filing a charge of discrimination as allowed by law.\nTo his actual knowledge, as of the E ffective Date without any additiona investigation, E mployee has disclosed to\nthe Corporation any matters for which he was responsible as an employee of the Corporation that are reasonably likely to\ngive rise to, evidence, or support any claim of unlawful, unethical, or improper conduct, regulatory violation, unlawful\ndiscrimination, retaliation, or other cause of action against the Corporation Employee will not be considered in breach of\nthe foregoing with respect to any matter within the actual knowledge without any additional investigation of J ason F.\nGriffith, Scot Ross, and Thomas Miller, or any of them, on or before the E ffective Date.\nEmployee acknowledges and agrees that with the exception of his final wages, which will be paid in accordance\nwith the Corporation's usual payroll practices and in accordance with state law, no other payments, commissions,\nbonuses,\nor\nbenefits\nwil\nbe\nmade\nby\nCorporation\nto\nEmployee\nbased\non\nEmployee's\nemployment\nby\nCorporation\nand\nEmployee acknowledges that he has no entitlement to, or any right to make any claim for, any additional payments,\ncommissions, bonuses, or benefits by Corporation of any kind whatsoever, that are due based on Employee's\nemployment by Corporation. mployee's eligibility for coverage as an active employee under all employee benefit plans\nmaintained by Corporation terminate on the Resignation Date. Employee may purchase, if eligible, continuation of health\nbenefits coverage to the extent and for the period provided by law.\n8\nSection 4. Release of Claims by Corporation\nFor, and in consideration of the promises contained herein, the sufficiency, adequacy, and receipt of all of which\nconsideration is hereby expressly acknowledged, Corporation releases and discharges Employee from any and all\nobligations, claims, damages, demands, liabilities, equities, actions, causes of actions and legal theories of whatever\nkind, in law or in equity, in contract or tort or public policy, both known and unknown, suspected and unsuspected,\ndisclosed and undisclosed, actua and consequential, specific and general, however denominated, from the beginning of\ntime\nup\nto\nand\nincluding\nthe\ntime\nof\nthe\nsigning\nof\nthis\nAgreement;\nwhether\nfor\nincome\nfrom\nany\nsource,\ndeclaratory\nor\ninjunctive relief, compensatory or punitive damages, wages, severance benefits, money, remuneration, emotional\ndistress, injunctive relief, costs, expenses, attorneys' fees, or thing of any value whatsoever, by Corporation against\nEmployee, including but not limited to any claims arising out of or resulting from Employee's employment with\nCorporation, and any other matter between Employee and Corporation. Provided, however, that Corporation is not\nreleasing any claim that relates to (1) its right to enforce this Agreement (2) any rights or claims that arise after the\nexecution of this Agreement; or (3) any rights that it cannot lawfully release.\nSection 5. Noncompetition; Confidentiality; Non-Disparagement\nEmployee agrees that for a period of six (6) months, beginning with the execution of this Agreement (the\n"Covenant\nPeriod"),\nmployee\nwil\nnot,\nwithout\nthe\nprior\nwritten\nconsent\nof\nthe\nCorporation\nin\neach\ninstance:\n(1)\nparticipate or engage, directly or indirectly, in the ownership, management, operation, or control of, or work for as an\nemployee, independent contractor or consultant, or be connected as a partner, member, owner, investor, lender or\notherwise, with, or have any financial interest in, or aid or assist anyone else in the conduct of any of the businesses or\ncustomers described on Schedule I, attached hereto; or (2) directly or indirectly, employ, offer to employ, recruit, solicit,\nentice away, or in any other manner persuade or attempt to persuade any employee or independent contractor of the\nCorporation or any person who, at any time during the twelve (12) months preceding the date in question, was an\nemployee, independent contractor, patient or customer of the Corporation or the Business, to discontinue the relationship\nwith the Corporation.\nEmployee agrees that, for a period of two (2) years after execution of this Agreement, he will hold and keep\nconfidential all Confidential Information (as defined below) to which Employee, at any time shall have become informed,\nand that he will not, directly or indirectly, disclose any Confidential Information to any person, firm, corporation or entity,\nor use the same, or permit the same to be disclosed or used. "Confidential Information" as used herein means proprietary\ninformation directly relating to the Corporation or developed exclusively by the Corporation or developed for the use of\nthe Corporation or the Business and shall include, without limitation, the following types of information regarding the\nCorporation\nor\nthe\nBusiness:\ncorporate\ninformation,\nincluding\nbusiness\ninformation,\nplans,\nstrategies,\ntactics,\nor\npolicies;\nmarketing information, including strategies, tactics, methods, customer and patient lists, prospects, and market research\ndata; financial data or forecasts; policies or procedures; know-how and ideas; operational information, including trade\nsecrets; technical information, including designs, drawings and specifications; and any proprietary compounding\ninformation. Confidential Information is limited to that information which is not generally known to the public (other than as\na result of unauthorized disclosure by Employee) or within the industry of which the businesses described in Schedule\nI\nare a part.\n9\nEmployee expressly represents and warrants that he shall not disclose the existence or terms of this Agreement\nto any third person without the prior express written consent of the Corporation. Notwithstanding the foregoing, Employee\nmay disclose the existence and/or terms of this Agreement: (1) to his attorneys or accountants, to the extent that such\ndisclosure is necessary in the preparation of his tax returns; (2) pursuant to a securities regulatory request or to comply\nwith a securities regulatory requirement or other legal obligation; (3) pursuant to a duly-issued court or arbitration order;\nand (4) if the existence and/or terms of this Agreement have previously become disclosed by Corporation in a public\nfiling. In the case of a disclosure required pursuant to a duly-issued court or arbitration order, Employee or his attorneys\nshall at the earliest opportunity notify Corporation of any request or order compelling disclosure of any of the terms of this\nAgreement so as to allow Corporation an opportunity to take appropriate action to protect their interests. In the case of a\ndisclosure required pursuant to a securities regulatory request, Employee or his attorneys shall at the earliest opportunity\nnotify Corporation of any request.\nSection 6. Reasonableness; Severability\nEmployee acknowledges and agrees that the restrictions placed on Employee and the rights and remedies\nconferred on the Corporation are reasonable in time, scope, and territory and are fully required to protect the legitimate\nbusiness\ninterests\nof\nthe\nCorporation\nwithout\na\ndisproportionate\ndetriment\nto\nEmployee.\nIf\nany\nprovision\nof\nthis\nAgreement shall, for any reason, be adjudged by any court of competent jurisdiction to be invalid or unenforceable (i)\nsuch provision shall remain in force and effect to the maximum extent allowable, if any, (ii) such judgment shall not affect,\nimpair, or invalidate the remainder of this Agreement, but shall be confined in its operation to the provision of this\nAgreement directly involved in the controversy in which such judgment shall have been rendered, and (iii) the\nenforceability or validity of the remaining provisions of this Agreement shall not be affected thereby. If a court finds that\nany provision of this Agreement is invalid or unenforceable, but that modification of such provision will make it valid or\nenforceable, then such provision shall be deemed to be so modified.\nSection 7. Waiver of Age Discrimination Claims/Revocation Period/Effective Date\nEmployee specifically represents that he has read and understands this Agreement and Release, and has been\noffered a minimum of twenty-one (21) days to consider the Agreement before he has to execute it and understands fully\nthe final and binding effect of this Agreement. Employee further agrees that the only promises made to him to sign this\nAgreement are those stated in the Agreement and that he has signed this Agreement voluntarily with the full intent of\nreleasing the Corporation and Released Parties from any and all claims relating to or arising out of his employment with\nthe Corporation. Employee acknowledges that he was advised to consult an attorney, hired by him, to review the\nAgreement and provide advice about it, and he has done so to the extent he desires. In accordance with federal law, this\nAgreement\nmay\nbe\nrevoked\nby\nEmployee\nat\nany\ntime\nwithin\nseven\n(7)\ndays\nafter\nthe\ndate\nthe\nAgreement\nis\nsigned\nby\nEmployee (the "Revocation Period"). If E mployee wishes to revoke this Release, he must revoke it in writing delivered by\nhand delivery or by electronic mail prior to the end of the Revocation Period to Tom Miller, CEO,\ntmiller@ questsolution.com; 870 Conger Street, Eugene, OR 97402, or the revocation will not be effective. If Employee\nrevokes his acceptance, none of the rights or obligations set forth in this Agreement wil take effect. If Employee does not\nrevoke his acceptance, the Agreement shall become fully effective and enforceable immediately upon expiration of the\nRevocation Period (the "Effective Date"). Employee expressly understands that he is knowingly and voluntarily\nwaiving\nany\nclaim\nfor\nage\ndiscrimination\nthat\nhe\nmay\nhave\nunder\nthe\nAge\nDiscrimination\nin\nEmployment\nAct;\nFinally, Employee agrees and acknowledges that if he signs this Agreement before the expiration of said twenty-one (21)\nday period referred to hereinabove, that he has affirmatively waived such twenty-one (21) day minimum period, but wil\nstill have the seven (7) calendar days within which to revoke this Agreement\n10\nSection 8. Waiver\nNo consent or waiver, express or implied, by either party with respect to any breach or default by any other party\nin the performance of any other party's obligations hereunder shall be deemed or construed to be a consent or waiver\nwith respect to any other breach or default in the performance of the same or any other obligation of such other party\nhereunder. A party's failure to complain of any act or failure to act of any other party or to declare any other party in\ndefault, irrespective of how long such failure continues, shall not constitute a waiver by such party of any rights\nhereunder.\nThe\ngiving\nof\nconsent\nby\na\nparty\nin\nany\none\ninstance\nshal\nnot\nlimit\nor\nwaive\nthe\nnecessity\nof\nobtaining\nsuch\nparty's consent in any future instance. Any consent required to be given hereunder shall be in writing unless otherwise\nprovided herein.\nSection 9. Taxes\nThe Corporation will be responsible for payroll deductions that it would normally be responsible for in connection\nwith a severance agreement to an employee Employee agrees that he is ultimately and solely responsible for paying the\ncorrect amount of taxes he may owe on any amounts he receives in connection with this Agreement.\nSection 10. Miscellaneous\nThis Agreement shal be construed and enforced in accordance with, and governed by, the laws of the State of\nOregon (without regard to the conflicts of laws principles thereof) AIl sections and descriptive headings of sections and\nsubsections in this Agreement are inserted for convenience only, and shall not affect the construction or interpretation\nhereof. This Agreement may not be modified or amended or any term or provision hereof waived or discharged except in\nwriting signed by the party against whom such amendment, modification, waiver, or discharge is sought to be enforced.\nEach party shall bear its own attorney's fees in connection with the preparation and review of this Agreement. All of the\nterms of this Agreement, whether so expressed or not, shal be binding upon the successors and assigns of the parties\nhereto and shall inure to the benefit of and be enforceable by the parties hereto and their respective successors and\nassigns. This Agreement and the payments required under Section 2 shal automatically cease upon the death of\nmployee. This Agreement may be executed in several counterparts, each of which shal be deemed an original, but all\nof which together shall constitute one and the same instrument\n11\nIN WITNESS WHEREOF the parties hereto have duly executed this Agreement as of the day and year executed\nby Employee, below.\nQUEST SOLUTION, INC.\nPrinted Name:\nThomas Miller\nSignature:\n/s/ Thomas Miller\nDate:\n08/27/2015\nKURT THOMET, AN INDIVIDUAL\nPrinted Name:\nKurt Thomet\nSignature:\n/s/ Kurt Thomet\nDate\n08/26/2015\n12	EXHIBIT A\nNONCOMPETITION/CONFIDENTIALITY, SEPARATION AGREEMENT AND GENERAL RELEASE\nTHIS NONCOMPETITION/CONFIDENTIALITY, SEPARATION AGREEMENT AND GENERAL RELEASE (this\n“Agreement”), is entered into by and between QUEST SOLUTION, INC., a Delaware corporation (the “Corporation”), and\nKURT THOMET, an individual (“Employee”) (collectively the “Parties”).\nWHEREAS, the Corporation operates a transaction processing automation Corporation that focuses on\nenterprise mobility for the supply chain companies in the retail, distribution, logistics, healthcare and manufacturing\nindustries (the “Business”);\nWHEREAS, Employee is a shareholder and employee of the Corporation and has acquired certain confidential\ninformation with respect to the Business;\nWHEREAS, the Corporation and Employee desire to set forth their mutual agreement with respect to all matters\nrelating to the resignation of Employee’s employment with Corporation and the parties’ mutual release of claims; and\nWHEREAS, in order to protect the Business and the goodwill associated with the Business, the Parties agree\nthat Employee should refrain from engaging in certain businesses that compete or may compete with the Business and\nfrom certain other conduct, all on the terms and conditions contained herein;\nNOW THEREFORE, in consideration of the covenants, warranties and mutual agreements herein set forth, the\npayments set forth in Section 2 hereof, one dollar cash in hand paid, and for other good and valuable consideration, the\nreceipt and adequacy of which is hereby acknowledged, the parties do hereby agree as follows:\nSection 1. Resignation of Employment\nEmployee hereby resigns his employment with Corporation, effective as of the date of his execution of this\nAgreement (“Resignation Date”). Employee acknowledges that his employment separation is properly categorized as a\nvoluntary resignation. Employee represents and warrants that he will never seek re-employment or any contractual\nservice relationship with the Corporation or any of its divisions or affiliates in the future. Employee agrees that this\nprovision is fair, just, and appropriate under all the relevant facts and circumstances.\nSection 2. Consideration\nIn consideration for Employee’s obligations under this Agreement, Employee will be entitled to receive payment\nin the gross amount of Five Thousand Dollars ($5,000), less required withholdings and deductions, from the Corporation.\nEmployee has been offered twenty-one (21) days to consider the Agreement. If Employee accepts the Agreement,\npayment will be made on the Effective Date (as defined in Section 7). The Corporation will issue Employee a Form W-2\nfor the payment made under this Section 2.\n6\nIn the event Employee breaches this Agreement, the Corporation shall be entitled to recover any and all amounts\npreviously paid to the Employee under Section 2 of this Agreement, in addition to any other remedies to which the\nCorporation may be entitled at law or in equity.\nSection 3. Release of Claims by Employee\nEmployee hereby waives, releases, and discharges the Corporation, its past and present parents, subsidiaries,\ndivisions, and affiliated companies, their respective past and present stockholders, directors, officers, agents, and\ninsurers (collectively the “Released Parties”), from any and all claims, demands, damages, and causes of action from any\nand all claims, causes of action, liabilities, costs (including attorney’s fees), obligations, and judgments of any kind,\nwhether direct or contingent in Employee’s favor, whether known or unknown, past, present, or future, whether in law or\nin equity, or otherwise and whether in contract, warranty, tort, strict liability, or otherwise, which he now has, may have\nhad at any time in the past, or may have at any time in the future arising or resulting from his employment with\nCorporation or the separation therefrom, except as set forth herein (collectively the “Released Claims”). Employee also\nrepresents and warrants that he has not sold, assigned, or transferred any Released Claim. Employee expressly\nrepresents that he has full legal authority to enter into this Agreement for himself and his heirs.\nThe Released Claims include, but are not limited to, any rights or claims in law or equity, federal, state or local,\nstatutory or common law, for breach of employment contract, wrongful termination, or past wages under applicable state\nlaw; claims relating to discrimination, harassment, retaliation, accommodation, or whistleblowing (for example, claims\nunder Title VII of the Civil Rights Act of 1964 (“Title VII”), the Civil Rights Acts of 1866 and 1871 (42 U.S .C. § 1981), the\nAmericans with Disabilities Act Amendments Act of 2008 (“ADAAA”) and the Americans with Disabilities Act of 1990\n(“ADA”), the Age Discrimination in Employment Act (“ADEA”) and the Older Workers Benefit Protection Act (“OWBPA”);\nthe Family and Medical Leave Act of 1993, the Fair Labor Standards Act of 1938, the National Labor Relations Act, the\nWorker Adjustment Retraining Notification Act of 1988, the Employee Retirement Income Security Act of 1974 (excepting\nclaims for vested benefits, if any, to which Employee is legally entitled thereunder), or any other federal, state, county or\nlocal law, statute, ordinance, decision, order, policy or regulation prohibiting employment discrimination, harassment or\nretaliation, or otherwise creating rights or claims for employees, including, but not limited to, any and all claims alleging\nbreach of public policy, the implied obligation of good faith and fair dealing, or any implied, oral or written contract,\nhandbook, manual, policy statement or employment practice, or alleging misrepresentation, defamation, interference with\ncontractual relations, intentional or negligent infliction of emotional distress, invasion of privacy, false imprisonment,\nnegligence or wrongful discharge. Provided, however, that this release does not extend to: (1) rights or claims the release\nof which is expressly prohibited by law; (2) rights that may arise after the effective date of this Agreement; and (3)\nEmployee’s right to enforce or rescind this Agreement.\nEmployee agrees that Employee will not seek and waives any right to accept any benefit or consideration from\nany source whatsoever with respect to any claims that Employee has asserted or could have asserted against the\nReleased Parties, whether filed by Employee or on Employee’s behalf. Employee further agrees that if Employee, or any\nperson or entity representing Employee, or any federal, state or local agency, files or asserts such claims, this Agreement\nwill act as a total and complete bar to recovery of any judgment, award, damages or remedy of any kind, except where\nexpressly prohibited by law.\n7\nEmployee understands that he is releasing the Released Parties from claims that he may not know about as of\nthe date of the execution of this Agreement, and that it is his knowing and voluntary intent even though Employee\nrecognizes that someday he might learn that some or all of the facts he currently believes to be true are untrue and even\nthough he might then regret having signed this Agreement. Nevertheless, Employee understands that he is expressly\nassuming that risk and agrees that this Agreement shall remain effective in all respects in any such case. Employee\nexpressly and completely waives all rights he might have under any law that is intended to protect him from waiving\nunknown claims, and Employee understands the significance of doing so.\nEmployee represents that neither Employee nor, to his knowledge, any person or entity acting on Employee’s\nbehalf or with Employee’s authority has asserted with any federal, state or local judicial or administrative body any claim\nof any kind based on or arising out of any aspect of Employee’s employment with the Corporation or the ending of that\nemployment. Employee further represents that he is not participating, either directly or indirectly, in any investigations,\nproceedings, actions, or claims against the Corporation.\nEmployee hereby specifically covenants and agrees that he shall not initiate, or cause to be initiated, any action\nor cause of action against the Released Parties in the future asserting any claims released in this Agreement, except that\nthe foregoing shall not preclude Employee from filing a charge of discrimination as allowed by law.\nTo his actual knowledge, as of the Effective Date without any additional investigation, Employee has disclosed to\nthe Corporation any matters for which he was responsible as an employee of the Corporation that are reasonably likely to\ngive rise to, evidence, or support any claim of unlawful, unethical, or improper conduct, regulatory violation, unlawful\ndiscrimination, retaliation, or other cause of action against the Corporation. Employee will not be considered in breach of\nthe foregoing with respect to any matter within the actual knowledge without any additional investigation of Jason F.\nGriffith, Scot Ross, and Thomas Miller, or any of them, on or before the Effective Date.\nEmployee acknowledges and agrees that with the exception of his final wages, which will be paid in accordance\nwith the Corporation’s usual payroll practices and in accordance with state law, no other payments, commissions,\nbonuses, or benefits will be made by Corporation to Employee based on Employee’s employment by Corporation; and\nEmployee acknowledges that he has no entitlement to, or any right to make any claim for, any additional payments,\ncommissions, bonuses, or benefits by Corporation of any kind whatsoever, that are due based on Employee’s\nemployment by Corporation. Employee’s eligibility for coverage as an active employee under all employee benefit plans\nmaintained by Corporation terminate on the Resignation Date. Employee may purchase, if eligible, continuation of health\nbenefits coverage to the extent and for the period provided by law.\n8\nSection 4. Release of Claims by Corporation\nFor, and in consideration of the promises contained herein, the sufficiency, adequacy, and receipt of all of which\nconsideration is hereby expressly acknowledged, Corporation releases and discharges Employee from any and all\nobligations, claims, damages, demands, liabilities, equities, actions, causes of actions and legal theories of whatever\nkind, in law or in equity, in contract or tort or public policy, both known and unknown, suspected and unsuspected,\ndisclosed and undisclosed, actual and consequential, specific and general, however denominated, from the beginning of\ntime up to and including the time of the signing of this Agreement; whether for income from any source, declaratory or\ninjunctive relief, compensatory or punitive damages, wages, severance benefits, money, remuneration, emotional\ndistress, injunctive relief, costs, expenses, attorneys’ fees, or thing of any value whatsoever, by Corporation against\nEmployee, including but not limited to any claims arising out of or resulting from Employee’s employment with\nCorporation, and any other matter between Employee and Corporation. Provided, however, that Corporation is not\nreleasing any claim that relates to (1) its right to enforce this Agreement; (2) any rights or claims that arise after the\nexecution of this Agreement; or (3) any rights that it cannot lawfully release.\nSection 5. Noncompetition; Confidentiality; Non-Disparagement\nEmployee agrees that for a period of six (6) months, beginning with the execution of this Agreement (the\n“Covenant Period”), Employee will not, without the prior written consent of the Corporation in each instance: (1)\nparticipate or engage, directly or indirectly, in the ownership, management, operation, or control of, or work for as an\nemployee, independent contractor or consultant, or be connected as a partner, member, owner, investor, lender or\notherwise, with, or have any financial interest in, or aid or assist anyone else in the conduct of any of the businesses or\ncustomers described on Schedule I, attached hereto; or (2) directly or indirectly, employ, offer to employ, recruit, solicit,\nentice away, or in any other manner persuade or attempt to persuade any employee or independent contractor of the\nCorporation or any person who, at any time during the twelve (12) months preceding the date in question, was an\nemployee, independent contractor, patient or customer of the Corporation or the Business, to discontinue the relationship\nwith the Corporation.\nEmployee agrees that, for a period of two (2) years after execution of this Agreement, he will hold and keep\nconfidential all Confidential Information (as defined below) to which Employee, at any time shall have become informed,\nand that he will not, directly or indirectly, disclose any Confidential Information to any person, firm, corporation or entity,\nor use the same, or permit the same to be disclosed or used. “Confidential Information” as used herein means proprietary\ninformation directly relating to the Corporation or developed exclusively by the Corporation or developed for the use of\nthe Corporation or the Business and shall include, without limitation, the following types of information regarding the\nCorporation or the Business: corporate information, including business information, plans, strategies, tactics, or policies;\nmarketing information, including strategies, tactics, methods, customer and patient lists, prospects, and market research\ndata; financial data or forecasts; policies or procedures; know-how and ideas; operational information, including trade\nsecrets; technical information, including designs, drawings and specifications; and any proprietary compounding\ninformation. Confidential Information is limited to that information which is not generally known to the public (other than as\na result of unauthorized disclosure by Employee) or within the industry of which the businesses described in Schedule I\nare a part.\n9\nEmployee expressly represents and warrants that he shall not disclose the existence or terms of this Agreement\nto any third person without the prior express written consent of the Corporation. Notwithstanding the foregoing, Employee\nmay disclose the existence and/or terms of this Agreement: (1) to his attorneys or accountants, to the extent that such\ndisclosure is necessary in the preparation of his tax returns; (2) pursuant to a securities regulatory request or to comply\nwith a securities regulatory requirement or other legal obligation; (3) pursuant to a duly-issued court or arbitration order;\nand (4) if the existence and/or terms of this Agreement have previously become disclosed by Corporation in a public\nfiling. In the case of a disclosure required pursuant to a duly-issued court or arbitration order, Employee or his attorneys\nshall at the earliest opportunity notify Corporation of any request or order compelling disclosure of any of the terms of this\nAgreement so as to allow Corporation an opportunity to take appropriate action to protect their interests. In the case of a\ndisclosure required pursuant to a securities regulatory request, Employee or his attorneys shall at the earliest opportunity\nnotify Corporation of any request.\nSection 6. Reasonableness; Severability\nEmployee acknowledges and agrees that the restrictions placed on Employee and the rights and remedies\nconferred on the Corporation are reasonable in time, scope, and territory and are fully required to protect the legitimate\nbusiness interests of the Corporation without a disproportionate detriment to Employee. If any provision of this\nAgreement shall, for any reason, be adjudged by any court of competent jurisdiction to be invalid or unenforceable (i)\nsuch provision shall remain in force and effect to the maximum extent allowable, if any, (ii) such judgment shall not affect,\nimpair, or invalidate the remainder of this Agreement, but shall be confined in its operation to the provision of this\nAgreement directly involved in the controversy in which such judgment shall have been rendered, and (iii) the\nenforceability or validity of the remaining provisions of this Agreement shall not be affected thereby. If a court finds that\nany provision of this Agreement is invalid or unenforceable, but that modification of such provision will make it valid or\nenforceable, then such provision shall be deemed to be so modified.\nSection 7. Waiver of Age Discrimination Claims/Revocation Period/Effective Date\nEmployee specifically represents that he has read and understands this Agreement and Release, and has been\noffered a minimum of twenty-one (21) days to consider the Agreement before he has to execute it and understands fully\nthe final and binding effect of this Agreement. Employee further agrees that the only promises made to him to sign this\nAgreement are those stated in the Agreement and that he has signed this Agreement voluntarily with the full intent of\nreleasing the Corporation and Released Parties from any and all claims relating to or arising out of his employment with\nthe Corporation. Employee acknowledges that he was advised to consult an attorney, hired by him, to review the\nAgreement and provide advice about it, and he has done so to the extent he desires. In accordance with federal law, this\nAgreement may be revoked by Employee at any time within seven (7) days after the date the Agreement is signed by\nEmployee (the “Revocation Period”). If Employee wishes to revoke this Release, he must revoke it in writing delivered by\nhand delivery or by electronic mail prior to the end of the Revocation Period to Tom Miller, CEO,\ntmiller@questsolution.com; 870 Conger Street, Eugene, OR 97402, or the revocation will not be effective. If Employee\nrevokes his acceptance, none of the rights or obligations set forth in this Agreement will take effect. If Employee does not\nrevoke his acceptance, the Agreement shall become fully effective and enforceable immediately upon expiration of the\nRevocation Period (the “Effective Date”). Employee expressly understands that he is knowingly and voluntarily\nwaiving any claim for age discrimination that he may have under the Age Discrimination in Employment Act;\nFinally, Employee agrees and acknowledges that if he signs this Agreement before the expiration of said twenty-one (21)\nday period referred to hereinabove, that he has affirmatively waived such twenty-one (21) day minimum period, but will\nstill have the seven (7) calendar days within which to revoke this Agreement.\n10\nSection 8. Waiver\nNo consent or waiver, express or implied, by either party with respect to any breach or default by any other party\nin the performance of any other party’s obligations hereunder shall be deemed or construed to be a consent or waiver\nwith respect to any other breach or default in the performance of the same or any other obligation of such other party\nhereunder. A party’s failure to complain of any act or failure to act of any other party or to declare any other party in\ndefault, irrespective of how long such failure continues, shall not constitute a waiver by such party of any rights\nhereunder. The giving of consent by a party in any one instance shall not limit or waive the necessity of obtaining such\nparty’s consent in any future instance. Any consent required to be given hereunder shall be in writing unless otherwise\nprovided herein.\nSection 9. Taxes\nThe Corporation will be responsible for payroll deductions that it would normally be responsible for in connection\nwith a severance agreement to an employee. Employee agrees that he is ultimately and solely responsible for paying the\ncorrect amount of taxes he may owe on any amounts he receives in connection with this Agreement.\nSection 10. Miscellaneous\nThis Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of\nOregon (without regard to the conflicts of laws principles thereof). All sections and descriptive headings of sections and\nsubsections in this Agreement are inserted for convenience only, and shall not affect the construction or interpretation\nhereof. This Agreement may not be modified or amended or any term or provision hereof waived or discharged except in\nwriting signed by the party against whom such amendment, modification, waiver, or discharge is sought to be enforced.\nEach party shall bear its own attorney’s fees in connection with the preparation and review of this Agreement. All of the\nterms of this Agreement, whether so expressed or not, shall be binding upon the successors and assigns of the parties\nhereto and shall inure to the benefit of and be enforceable by the parties hereto and their respective successors and\nassigns. This Agreement and the payments required under Section 2 shall automatically cease upon the death of\nEmployee. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all\nof which together shall constitute one and the same instrument.\n11\nIN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year executed\nby Employee, below.\nQUEST SOLUTION, INC.\nPrinted Name: Thomas Miller\nSignature:\n/s/ Thomas Miller\nDate:\n08/27/2015\nKURT THOMET, AN INDIVIDUAL\nPrinted Name: Kurt Thomet\nSignature:\n/s/ Kurt Thomet\nDate:\n08/26/2015\n12
+6dd1ed5dc49105cfbcd17b9a29bd6949.pdf	effective_date jurisdiction party term	EX-10.28 8 dex1028.htm CONFIDENTIALITY AND NON-COMPETE AGREEMENT\nExhibit 10.28\nCONFIDENTIALITY AND NON-COMPETE AGREEMENT\nThis Agreement, entered into this 1st day of February, 2004, is by and between Mannatech, Inc., a Texas corporation (the “Company”) and H.\nReg McDaniel (“HM”).\nWHEREAS, HM is a former employee of the Company;\nWHEREAS, HM and the Company entered into a Confidentiality and Non-Compete Agreement dated June 21, 2002 (the “Prior Agreement”)\nwhich expired on June 21, 2003; and\nWHEREAS, the Company wishes to provide certain compensation to HM in exchange for the obligations set forth in this Agreement;\nNOW, THEREFORE, in consideration of these recitals and the promises and agreements set forth in this Agreement, the Parties hereby agree\nas follows:\n1. Nondisclosure: For a period of five (5) years following the execution of this Agreement, HM shall keep and retain in confidence and\nshall not disclose, except as required by the Company or by law, to any person, firm or corporation, or use for HM’s own purposes, any\nConfidential Information that he may have learned or obtained from the Company, or which is new Confidential Information provided in\nconjunction with this Agreement.\na.\nConfidential Information: For the purposes of this section, such Confidential Information shall include, but is not limited to:\n(1) The Company’s operating procedures, processes, formulae, know-how, scientific, technical, or product information, whether\npatentable or not, which is of value to the Company and not generally known by the Company’s competitors;\n(2) All confidential information obtained from third parties and customers concerning their products, business, or the direct sale\nand/or network/multi-level marketing of dietary supplements;\n(3) Confidential business information of the Company, including, but not limited to, marketing and business plans, associates and\ndown line information, strategies, projections, business opportunities, client identities or lists, sales and cost information, internal\nfinancial statements or reports, profit, loss, or margin information, customer price information, compensation plans and strategies;\nand,\n(4) Confidential Information shall not include information which:\n(a) Was in the receiving party’s possession, free of any obligation of confidence, prior to receipt from the disclosing party, as\nproven by the receiving party;\n(b) Is already in the public domain at the time the disclosing party communicated it to the receiving party, or becomes available\nto the public through no breach of this Agreement;\n(c) Is received independently from a third-party free to disclose such information to the receiving party;\n(d) Is developed by the receiving party independently of and without reference to any of the Confidential Information, as\nproven by the receiving party;\n(e) Is disclosed by the receiving party to a third-party, with the express prior written consent of the disclosing party;\n1\n(f) Is disclosed by the receiving party in order to satisfy any legal requirement of any competent government body; provided,\nhowever, that immediately upon the receiving party’s receipt of any such request, the receiving party shall first advise the\ndisclosing party of same before making any disclosure to such body, so that the disclosing party may either interpose an\nobjection to such disclosure before such body, or take action to assure confidential handling of the Confidential Information\nby such body, or take action to protect the Confidential Information which the disclosing party deems appropriate under the\ncircumstances; or\n(g) Is disclosed in the course of a criminal or civil investigation of conduct which allegedly violates any code, statute,\nordinance, rule and/or regulation of the United States or of any state or political subdivision thereof.\nInevitable Use or Disclosure/Irreparable Harm: HM stipulates and agrees that, for a period of twelve (12) calendar months after the execution\nof this Agreement, if HM becomes a spokesperson for, employee, consultant, owner, partner, shareholder, officer, or director, of or shareholder\nof more than 5% of the outstanding stock of a publicly traded company for any business operation that is involved in the direct selling business\ngenerally and/or direct sales and/or network/multi-level marketing of dietary supplements and other similar products sold or distributed by the\nCompany or any of its subsidiaries or in any manufacturing or formulation of such products, (collectively the “Business”) such conduct would\nresult in the inevitable use and/or disclosure of Confidential Information acquired by or imparted to him. Based on this stipulation and\nagreement and for the consideration paid to him under the terms of this Agreement, HM is prohibited from becoming employed by, a\nconsultant for, an officer, director or shareholder of more than 5% of the outstanding stock of, any business operation which competes in the\nBusiness currently engaged in by Company or any of its subsidiaries or affiliates for a period of twelve (12) months after execution of this\nAgreement. The Company will have the right to seek any injunctive relief necessary to prevent such irreparable harm and disclosure.\n2. Non-Competition: In exchange for the mutual promises and obligations contained in this Agreement, and contemporaneous with its\nexecution, the Company promises to deliver to HM or permit HM to acquire, be exposed to, and/or have access to new material, data, or information\nof the Company and/or its customers or clients that is confidential, proprietary and/or a trade secret. This includes, but is not necessarily limited to,\nthe Confidential Information described on the attached Exhibit A, delivered or provided contemporaneously with the execution of this Agreement.\nBy signing this Agreement, HM acknowledges receipt of the Confidential Information described in Exhibit A.\na.\nIn consideration of the mutual promises contained in this Agreement, the sufficiency of which is acknowledged by the parties, HM\nagrees that for a period of twelve (12) calendar months after the execution of this Agreement, he will not, either as a spokesperson, sales\nrepresentative, or independent contractor for, employee, consultant, owner, partner, shareholder, officer, or director, of or shareholder of\nmore than 5% of the outstanding stock of a publicly traded company, for any business operation which competes in the business\ncurrently engaged in by Company or any of its subsidiaries or affiliates, directly or indirectly:\n(1) Sell, recommend, or promote dietary supplements of a competitor of the Company or become a spokesperson for, employee,\nconsultant, owner, partner, shareholder, officer, or director, of or shareholder of more than 5% of the outstanding stock of a\npublicly traded company for any business operation that is in the direct selling business generally, or in any business which\ncompetes in the business currently engaged in by Company or any of its subsidiaries or affiliates.\n(2) Solicit or attempt to solicit any employees, or Mannatech Associates with whom the Company has had any contract during the\nterm of this Agreement or for a period of 12 calendar months preceding the date of this Agreement or otherwise induce such\nCustomers to reduce, terminate, restrict or otherwise alter business relationships with the Company in any fashion;\n2\nNotwithstanding any provision of this Agreement, HM may speak at any trade, professional or industry association or scientific or educational\nmeeting (other than on behalf of a competitor), and may conduct scientific research or evaluations of drugs, dietary supplements or similar\nproducts without disclosing any Confidential Information, and may research and/or develop prescription and/or over the counter drugs.\n(c) In recognition of the broad geographic scope of the Company’s business operations throughout the entire United States, and the ease of\ncompeting with the Company, the restrictions on competition set forth herein are intended to cover those cities and states in the United\nStates of America and foreign countries in which the Company does business on the date of the execution of this Agreement.\n3. Payment for Restrictive Covenants: In consideration for HM’s compliance with the respective obligations under this Agreement, HM shall\nreceive a total fee in the amount of Twenty Five Thousand and no/100 Dollars ($25,000.00) once per month, during the term of this Agreement.\nPayments shall be on the last day of every month. The Company will not withhold or pay any amounts to any federal, state, or local authority with\nrespect to or on behalf of HM. HM thereafter shall be solely responsible for all of federal, state, and local taxes and reports.\n4. Independent Contractor: HM agrees that during the effective period of this Agreement, each will be an independent contractor for federal\nincome tax and all other purposes, and will, accordingly, file, remit and pay all required amounts attributable to compensation paid under the terms\nof this Agreement to any and all taxing authorities, as required. Moreover, as an independent contractor and consultant, there is no agency, employee,\npartnership, or joint venture relationship between the Parties and therefore, HM may not bind the Company in any manner nor enter into any\nagreement on the Company’s behalf. HM shall not represent himself to any person or entity as an employee, officer, agent, representative, official or\nowner (except as a Shareholder or Associate) of the Company.\n5. Authority: Each party hereto represents and warrants to the other that he has the authority to execute and deliver this Agreement and to\nperform hereunder.\n6. Entire Agreement: This Agreement represents the entire understanding of the Parties with regard to the matters addressed herein. Except as\notherwise contemplated hereby, this Agreement constitutes the entire agreement of the Parties, and supersedes all prior agreements and\nunderstandings (oral and written), between or among the Parties with respect to the subject matter hereof and that there are no other written or oral\nagreements between the parties, except the Independent Associates Agreement with respect to Mannatech distributor positions held by HM, jointly\nor individually.\n7. Applicable Law: This Agreement shall be construed in accordance with the laws of the State of Texas, without regard to the conflicts of\nlaws or principles of such state.\n8. Severability: If any provision or term of this Agreement is held to be illegal, invalid, or unenforceable, such provision or term shall be fully\nseverable; this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised part of this\nAgreement; and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid, or\nunenforceable provision or by its severance from this Agreement. Furthermore, in lieu of each such illegal, invalid, or unenforceable provision or\nterm, there shall be added automatically as a part of this Agreement another provision or term as similar to the illegal, invalid, or unenforceable\nprovision as may be possible and that is legal, valid, and enforceable.\n9. Termination: Notwithstanding anything to the contrary in this Agreement, the Company may terminate this Agreement and all obligations of\nall Parties hereto, including, upon termination of this Agreement, the Company’s obligations to make any further monthly payments contemplated by\nthis Agreement in the event of HM breaches any of the terms of this Agreement, and the failure to cure such breach within 30 days following notice\nof such breach by the Company. HM may explain in writing his response to a written notice from the Company describing a claimed breach within\nten (10) business days after receipt of such notice from the Company. The decision to terminate this Agreement will be made by Mannatech’s Board\nof Directors in its sole and exclusive discretion.\n10. Non-Disparagement. HM further agrees to refrain from making disparaging comments about Mannatech, its executives, employees,\nIndependent Associates and/or its proprietary products in any manner during the term of this Agreement and after the Agreement terminates, for any\nreason. The Parties agree to act in a manner consistent with favorable advancement and promotion of the Company and its products. This covenant\nshall also survive the termination of this Agreement.\n3\n11. Disputes. In the event of a dispute between the Parties and before any legal action is commenced, the Parties agree that the complaining\nparty shall give specific and detailed notice to the other Party of the complaint, including the factual basis therefore. The Parties shall use their best\nefforts to resolve the complaint by face to face meeting conducted within 5 days of such notice of complaint. If the Parties cannot arrive at a\nmutually satisfactory solution to the complaint within 5 business days from the date of such notice of the complaint, the Parties shall attempt to\nresolve the complaint by non-binding mediation before a neutral mediator agreeable to the parties. The Parties shall use best efforts to schedule and\nconduct such mediation within 10 days after the date of the face to face meeting. The mediation shall take place at a neutral location in Dallas\nCounty, Texas.\n12. Attorneys Fees. In any suit to enforce any provisions of this Agreement, The prevailing party in such proceeding shall be entitled to record\nand have awarded its reasonable attorney’s fees, costs and expenses of litigation in addition to any other relief to which it may be entitled.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the 1st day of February, 2004.\n/s/ H. Reg. McDAniel M.D.\nH. REG MCDANIEL. M.D .\nMANNATECH, INC.:\nBy: /s/ Sam Caster\nSam Caster\nIts: Chairman and CEO\n4	EX-10.28 8 dex1028.htm CONFIDENTIALITY AND NON-COMPETE AGREEMENT\nExhibit 10.28\nCONFIDENTIALITY AND NON-COMPETE AGREEMENT\nThis Agreement, entered into this 1st day of February, 2004, is by and between Mannatech, Inc., a Texas corporation (the “Company”) and H.\nReg McDaniel (“HM”).\nWHEREAS, HM is a former employee of the Company;\nWHEREAS, HM and the Company entered into a Confidentiality and Non-Compete Agreement dated June 21, 2002 (the “Prior Agreement”)\nwhich expired on June 21, 2003; and\nWHEREAS, the Company wishes to provide certain compensation to HM in exchange for the obligations set forth in this Agreement;\nNOW, THEREFORE, in consideration of these recitals and the promises and agreements set forth in this Agreement, the Parties hereby agree\nas follows:\n1.  Nondisclosure: For a period of five (5) years following the execution of this Agreement, HM shall keep and retain in confidence and\nshall not disclose, except as required by the Company or by law, to any person, firm or corporation, or use for HM’s own purposes, any\nConfidential Information that he may have learned or obtained from the Company, or which is new Confidential Information provided in\nconjunction with this Agreement.\na.  Confidential Information: For the purposes of this section, such Confidential Information shall include, but is not limited to:\n(1)  The Company’s operating procedures, processes, formulae, know-how, scientific, technical, or product information, whether\npatentable or not, which is of value to the Company and not generally known by the Company’s competitors;\n(2)  All confidential information obtained from third parties and customers concerning their products, business, or the direct sale\nand/or network/multi-level marketing of dietary supplements;\n3) Confidential business information of the Company, including, but not limited to, marketing and business plans, associates and\ndown line information, strategies, projections, business opportunities, client identities or lists, sales and cost information, internal\nfinancial statements or reports, profit, loss, or margin information, customer price information, compensation plans and strategies;\nand,\n4) Confidential Information shall not include information which:\n() Was in the receiving party’s possession, free of any obligation of confidence, prior to receipt from the disclosing party, as\nproven by the receiving party;\n(b) Is already in the public domain at the time the disclosing party communicated it to the receiving party, or becomes available\nto the public through no breach of this Agreement;\n(c) Isreceived independently from a third-party free to disclose such information to the receiving party;\nd) Is developed by the receiving party independently of and without reference to any of the Confidential Information, as\nped Dby g party P y y\nproven by the receiving party;\n(e) Isdisclosed by the receiving party to a third-party, with the express prior written consent of the disclosing party;\n(f) Isdisclosed by the receiving party in order to satisfy any legal requirement of any competent government body; provided,\nhowever, that immediately upon the receiving party’s receipt of any such request, the receiving party shall first advise the\ndisclosing party of same before making any disclosure to such body, so that the disclosing party may either interpose an\nobjection to such disclosure before such body, or take action to assure confidential handling of the Confidential Information\nby such body, or take action to protect the Confidential Information which the disclosing party deems appropriate under the\ncircumstances; or\n(g) Isdisclosed in the course of a criminal or civil investigation of conduct which allegedly violates any code, statute,\nordinance, rule and/or regulation of the United States or of any state or political subdivision thereof.\nInevitable Use or Disclosure/Irreparable Harm: HM stipulates and agrees that, for a period of twelve (12) calendar months after the execution\nof this Agreement, if HM becomes a spokesperson for, employee, consultant, owner, partner, shareholder, officer, or director, of or shareholder\nof more than 5% of the outstanding stock of a publicly traded company for any business operation that is involved in the direct selling business\ngenerally and/or direct sales and/or network/multi-level marketing of dietary supplements and other similar products sold or distributed by the\nCompany or any of its subsidiaries or in any manufacturing or formulation of such products, (collectively the “Business”) such conduct would\nresult in the inevitable use and/or disclosure of Confidential Information acquired by or imparted to him. Based on this stipulation and\nagreement and for the consideration paid to him under the terms of this Agreement, HM is prohibited from becoming employed by, a\nconsultant for, an officer, director or shareholder of more than 5% of the outstanding stock of, any business operation which competes in the\nBusiness currently engaged in by Company or any of its subsidiaries or affiliates for a period of twelve (12) months after execution of this\nAgreement. The Company will have the right to seek any injunctive relief necessary to prevent such irreparable harm and disclosure.\n2. Non-Competition: In exchange for the mutual promises and obligations contained in this Agreement, and contemporaneous with its\nexecution, the Company promises to deliver to HM or permit HM to acquire, be exposed to, and/or have access to new material, data, or information\nof the Company and/or its customers or clients that is confidential, proprietary and/or a trade secret. This includes, but is not necessarily limited to,\nthe Confidential Information described on the attached Exhibit A, delivered or provided contemporaneously with the execution of this Agreement.\nBy signing this Agreement, HM acknowledges receipt of the Confidential Information described in Exhibit A.\n \na.  In consideration of the mutual promises contained in this Agreement, the sufficiency of which is acknowledged by the parties, HM\nagrees that for a period of twelve (12) calendar months after the execution of this Agreement, he will not, either as a spokesperson, sales\nrepresentative, or independent contractor for, employee, consultant, owner, partner, shareholder, officer, or director, of or shareholder of\nmore than 5% of the outstanding stock of a publicly traded company, for any business operation which competes in the business\ncurrently engaged in by Company or any of its subsidiaries or affiliates, directly or indirectly:\nD Sell, recommend, or promote dietary supplements of a competitor of the Company or become a spokesperson for, employee,\nconsultant, owner, partner, shareholder, officer, or director, of or shareholder of more than 5% of the outstanding stock of a\npublicly traded company for any business operation that is in the direct selling business generally, or in any business which\ncompetes in the business currently engaged in by Company or any of its subsidiaries or affiliates.\n) Solicit or attempt to solicit any employees, or Mannatech Associates with whom the Company has had any contract during the\nterm of this Agreement or for a period of 12 calendar months preceding the date of this Agreement or otherwise induce such\nCustomers to reduce, terminate, restrict or otherwise alter business relationships with the Company in any fashion;\n2\nNotwithstanding any provision of this Agreement, HM may speak at any trade, professional or industry association or scientific or educational\nmeeting (other than on behalf of a competitor), and may conduct scientific research or evaluations of drugs, dietary supplements or similar\nproducts without disclosing any Confidential Information, and may research and/or develop prescription and/or over the counter drugs.\n(c) Inrecognition of the broad geographic scope of the Company’s business operations throughout the entire United States, and the ease of\ncompeting with the Company, the restrictions on competition set forth herein are intended to cover those cities and states in the United\nStates of America and foreign countries in which the Company does business on the date of the execution of this Agreement.\n3. Payment for Restrictive Covenants: In consideration for HM’s compliance with the respective obligations under this Agreement, HM shall\nreceive a total fee in the amount of Twenty Five Thousand and no/100 Dollars ($25,000.00) once per month, during the term of this Agreement.\nPayments shall be on the last day of every month. The Company will not withhold or pay any amounts to any federal, state, or local authority with\nrespect to or on behalf of HM. HM thereafter shall be solely responsible for all of federal, state, and local taxes and reports.\n4. Independent Contractor: HM agrees that during the effective period of this Agreement, each will be an independent contractor for federal\nincome tax and all other purposes, and will, accordingly, file, remit and pay all required amounts attributable to compensation paid under the terms\nof this Agreement to any and all taxing authorities, as required. Moreover, as an independent contractor and consultant, there is no agency, employee,\npartnership, or joint venture relationship between the Parties and therefore, HM may not bind the Company in any manner nor enter into any\nagreement on the Company’s behalf. HM shall not represent himself to any person or entity as an employee, officer, agent, representative, official or\nowner (except as a Shareholder or Associate) of the Company.\n5. Authority: Each party hereto represents and warrants to the other that he has the authority to execute and deliver this Agreement and to\nperform hereunder.\n6. Entire Agreement: This Agreement represents the entire understanding of the Parties with regard to the matters addressed herein. Except as\notherwise contemplated hereby, this Agreement constitutes the entire agreement of the Parties, and supersedes all prior agreements and\nunderstandings (oral and written), between or among the Parties with respect to the subject matter hereof and that there are no other written or oral\nagreements between the parties, except the Independent Associates Agreement with respect to Mannatech distributor positions held by HM, jointly\nor individually.\n7. Applicable Law: This Agreement shall be construed in accordance with the laws of the State of Texas, without regard to the conflicts of\nlaws or principles of such state.\n8. Severability: If any provision or term of this Agreement is held to be illegal, invalid, or unenforceable, such provision or term shall be fully\nseverable; this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised part of this\nAgreement; and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid, or\nunenforceable provision or by its severance from this Agreement. Furthermore, in lieu of each such illegal, invalid, or unenforceable provision or\nterm, there shall be added automatically as a part of this Agreement another provision or term as similar to the illegal, invalid, or unenforceable\nprovision as may be possible and that is legal, valid, and enforceable.\n9. Termination: Notwithstanding anything to the contrary in this Agreement, the Company may terminate this Agreement and all obligations of\nall Parties hereto, including, upon termination of this Agreement, the Company’s obligations to make any further monthly payments contemplated by\nthis Agreement in the event of HM breaches any of the terms of this Agreement, and the failure to cure such breach within 30 days following notice\nof such breach by the Company. HM may explain in writing his response to a written notice from the Company describing a claimed breach within\nten (10) business days after receipt of such notice from the Company. The decision to terminate this Agreement will be made by Mannatech’s Board\nof Directors in its sole and exclusive discretion.\n10. Non-Disparagement. HM further agrees to refrain from making disparaging comments about Mannatech, its executives, employees,\nIndependent Associates and/or its proprietary products in any manner during the term of this Agreement and after the Agreement terminates, for any\nreason. The Parties agree to act in a manner consistent with favorable advancement and promotion of the Company and its products. This covenant\nshall also survive the termination of this Agreement.\n11. Disputes. In the event of a dispute between the Parties and before any legal action is commenced, the Parties agree that the complaining\nparty shall give specific and detailed notice to the other Party of the complaint, including the factual basis therefore. The Parties shall use their best\nefforts to resolve the complaint by face to face meeting conducted within 5 days of such notice of complaint. If the Parties cannot arrive at a\nmutually satisfactory solution to the complaint within 5 business days from the date of such notice of the complaint, the Parties shall attempt to\nresolve the complaint by non-binding mediation before a neutral mediator agreeable to the parties. The Parties shall use best efforts to schedule and\nconduct such mediation within 10 days after the date of the face to face meeting. The mediation shall take place at a neutral location in Dallas\nCounty, Texas.\n12. Attorneys Fees. In any suit to enforce any provisions of this Agreement, The prevailing party in such proceeding shall be entitled to record\nand have awarded its reasonable attorney’s fees, costs and expenses of litigation in addition to any other relief to which it may be entitled.\n \nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the 1st day of February, 2004.\n/s/  H. Reg. McDAniel M.D.\nH. REG MCDANIEL. M.D.\nMANNATECH, INC.:\nBy: /s/ Sam Caster\nSam Caster\nIts: Chairman and CEO	EX-10.28 8 x1028.htm CONFIDENTIALITY AND NON-COMPETE AGREEMENT\nExhibit 10.28\nCONFIDENTIALITY AND NON-COMPETE AGREEMENT\nThis Agreement, entered into this 1st day of February, 2004, is by and between Mannatech, Inc., a Texas corporation (the "Company") and H.\nReg McDanie ("HM").\nWHEREAS, HM is a former employee of the Company;\nWHEREAS, HM and the Company entered into a Confidentiality and Non-Compete Agreement dated June 21, 2002 (the "Prior Agreement")\nwhich expired on June 21, 2003; and\nWHEREAS, the Company wishes to provide certain compensation to HM in exchange for the obligations set forth in this Agreement;\nNOW, THEREFORE, in consideration of these recitals and the promises and agreements set forth in this Agreement, the Parties hereby agree\nas follows:\n1.\nNondisclosure: For a period of five (5) years following the execution of this Agreement, HM shall keep and retain in confidence and\nshall not disclose, except as required by the Company or by law, to any person, firm or corporation, or use for HM's own purposes, any\nConfidential Information that he may have learned or obtained from the Company, or which is new Confidential Information provided in\nconjunction with this Agreement.\na.\nConfidential Information: For the purposes of this section, such Confidential Information shall include, but is not limited to:\n(1)\nThe Company's operating procedures, processes, formulae, know-how, scientific, technical, or product information, whether\npatentable or not, which is of value to the Company and not generally known by the Company's competitors;\n(2) All confidential information obtained from third parties and customers concerning their products, business, or the direct sale\nand/or network/multi-level marketing of dietary supplements;\n(3)\nConfidential business information of the Company, including, but not limited to, marketing and business plans, associates and\ndown line information, strategies, projections, business opportunities, client identities or lists, sales and cost information, internal\nfinancial statements or reports, profit, loss, or margin information, customer price information, compensation plans and strategies;\nand,\n(4)\nConfidential Information shall not include information which:\n(a) Was in the receiving party's possession, free of any obligation of confidence, prior to receipt from the disclosing party, as\nproven by the receiving party;\n(b) Is already in the public domain at the time the disclosing party communicated it to the receiving party, or becomes available\nto the public through no breach of this Agreement;\n(c)\nIs received independently from a third-party free to disclose such information to the receiving party;\n(d)\nIs developed by the receiving party independently of and without reference to any of the Confidential Information, as\nproven by the receiving party;\n(e) Is disclosed by the receiving party to a third-party, with the express prior written consent of the disclosing party;\n1\n(f)\nIs disclosed by the receiving party in order to satisfy any legal requirement of any competent government body; provided,\nhowever, that immediately upon the receiving party's receipt of any such request, the receiving party shall first advise the\ndisclosing party of same before making any disclosure to such body, so that the disclosing party may either interpose an\nobjection to such disclosure before such body, or take action to assure confidential handling of the Confidential Information\nby such body, or take action to protect the Confidential Information which the disclosing party deems appropriate under the\ncircumstances; or\n(g)\nIs disclosed in the course of a criminal or civil investigation of conduct which allegedly violates any code, statute,\nordinance, rule and/or regulation of the United States or of any state or political subdivision thereof.\nInevitable Use or Disclosure/Irreparable Harm: HM stipulates and agrees that, for a period of twelve (12) calendar months after the execution\nof this Agreement, if HM becomes a spokesperson for, employee, consultant, owner, partner, shareholder, officer, or director, of or shareholder\nof more than 5% of the outstanding stock of a publicly traded company for any business operation that is involved in the direct selling business\ngenerally and/or direct sales and/or network/multi-level marketing of dietary supplements and other similar products sold or distributed by the\nCompany or any of its subsidiaries or in any manufacturing or formulation of such products, (collectively the "Business") such conduct would\nresult in the inevitable use and/or disclosure of Confidential Information acquired by or imparted to him. Based on this stipulation and\nagreement and for the consideration paid to him under the terms of this Agreement, HM is prohibited from becoming employed by, a\nconsultant for, an officer, director or shareholder of more than 5% of the outstanding stock of, any business operation which competes in the\nBusiness currently engaged in by Company or any of its subsidiaries or affiliates for a period of twelve (12) months after execution of this\nAgreement. The Company will have the right to seek any injunctive relief necessary to prevent such irreparable harm and disclosure.\n2. Non-Competition: In exchange for the mutual promises and obligations contained in this Agreement, and contemporaneous with its\nexecution, the Company promises to deliver to HM or permit HM to acquire, be exposed to, and/or have access to new material, data, or information\nof the Company and/or its customers or clients that is confidential, proprietary and/or a trade secret. This includes, but is not necessarily limited to,\nthe Confidential Information described on the attached Exhibit A, delivered or provided contemporaneously with the execution of this Agreement.\nBy signing this Agreement, HM acknowledges receipt of the Confidential Information described in Exhibit A.\na.\nIn consideration of the mutual promises contained in this Agreement, the sufficiency of which is acknowledged by the parties, HM\nagrees that for a period of twelve (12) calendar months after the execution of this Agreement, he will not, either as a spokesperson, sales\nrepresentative, or independent contractor for, employee, consultant, owner, partner, shareholder, officer, or director, of or shareholder of\nmore than 5% of the outstanding stock of a publicly traded company, for any business operation which competes in the business\ncurrently engaged in by Company or any of its subsidiaries or affiliates, directly or indirectly:\n(1)\nSell, recommend, or promote dietary supplements of a competitor of the Company or become a spokesperson for, employee,\nconsultant, owner, partner, shareholder, officer, or director, of or shareholder of more than 5% of the outstanding stock of a\npublicly traded company for any business operation that is in the direct selling business generally, or in any business which\ncompetes in the business currently engaged in by Company or any of its subsidiaries or affiliates.\n(2)\nSolicit or attempt to solicit any employees, or Mannatech Associates with whom the Company has had any contract during the\nterm of this Agreement or for a period of 12 calendar months preceding the date of this Agreement or otherwise induce such\nCustomers to reduce, terminate, restrict or otherwise alter business relationships with the Company in any fashion;\n2\nNotwithstanding any provision of this Agreement, HM may speak at any trade, professional or industry association or scientific or educational\nmeeting (other than on behalf of a competitor), and may conduct scientific research or evaluations of drugs, dietary supplements or similar\nproducts without disclosing any Confidential Information, and may research and/or develop prescription and/or over the counter drugs.\n(c) In recognition of the broad geographic scope of the Company's business operations throughout the entire United States, and the ease\nof\ncompeting with the Company, the restrictions on competition set forth herein are intended to cover those cities and states in the United\nStates of America and foreign countries in which the Company does business on the date of the execution of this Agreement.\n3. Payment for Restrictive Covenants: In consideration for HM's compliance with the respective obligations under this Agreement, HM shall\nreceive a total fee in the amount of Twenty Five Thousand and no/100 Dollars ($25,000.00) once per month, during the term of this Agreement.\nPayments shall be on the last day of every month. The Company will not withhold or pay any amounts to any federal, state, or local authority with\nrespect to or on behalf of HM. HM thereafter shall be solely responsible for all of federal, state, and local taxes and reports.\n4. Independent Contractor: HM agrees that during the effective period of this Agreement, each will be an independent contractor for federal\nincome tax and all other purposes, and will, accordingly, file, remit and pay all required amounts attributable to compensation paid under the terms\nof this Agreement to any and all taxing authorities, as required. Moreover, as an independent contractor and consultant, there is no agency, employee,\npartnership, or joint venture relationship between the Parties and therefore, HM may not bind the Company in any manner nor enter into any\nagreement on the Company's behalf. HM shall not represent himself to any person or entity as an employee, officer, agent, representative, official\nor\nowner (except as a Shareholder or Associate) of the Company.\n5. Authority: Each party hereto represents and warrants to the other that he has the authority to execute and deliver this Agreement and to\nperform hereunder.\n6. Entire Agreement: This Agreement represents the entire understanding of the Parties with regard to the matters addressed herein. Except as\notherwise contemplated hereby, this Agreement constitutes the entire agreement of the Parties, and supersedes all prior agreements and\nunderstandings (oral and written), between or among the Parties with respect to the subject matter hereof and that there are no other written or oral\nagreements between the parties, except the Independent Associates Agreement with respect to Mannatech distributor positions held by HM, jointly\nor individually.\n7. Applicable Law: This Agreement shall be construed in accordance with the laws of the State of Texas, without regard to the conflicts of\nlaws or principles of such state.\n8. Severability.: If any provision or term of this Agreement is held to be illegal, invalid, or unenforceable, such provision or term shall be fully\nseverable;\nthis\nAgreement\nshall\nbe\nconstrued\nand\nenforced\nas\nif\nsuch\nillegal,\ninvalid,\nor\nunenforceable\nprovision\nhad\nnever\ncomprised\npart\nof\nthis\nAgreement; and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid, or\nunenforceable provision or by its severance from this Agreement. Furthermore, in lieu of each such illegal, invalid, or unenforceable provision or\nterm, there shall be added automatically as a part of this Agreement another provision or term as similar to the illegal, invalid, or unenforceable\nprovision as may be possible and that is legal, valid, and enforceable.\n9. Termination: Notwithstanding anything to the contrary in this Agreement, the Company may terminate this Agreement and all obligations of\nall Parties hereto, including, upon termination of this Agreement, the Company's obligations to make any further monthly payments contemplated by\nthis Agreement in the event of HM breaches any of the terms of this Agreement, and the failure to cure such breach within 30 days following notice\nof\nsuch\nbreach by the Company. HM may explain in writing his response to a written notice from the Company describing a claimed breach within\nten (10) business days after receipt of such notice from the Company. The decision to terminate this Agreement will be made by Mannatech's Board\nof Directors in its sole and exclusive discretion.\n10. Non-Disparagement. HM further agrees to refrain from making disparaging comments about Mannatech, its executives, employees,\nIndependent Associates and/or its proprietary products in any manner during the term of this Agreement and after the Agreement terminates, for any\nreason. The Parties agree to act in a manner consistent with favorable advancement and promotion of the Company and its products. This covenant\nshall also survive the termination of this Agreement.\n3\n11. Disputes. In the event of a dispute between the Parties and before any legal action is commenced, the Parties agree that the complaining\nparty shall give specific and detailed notice to the other Party of the complaint, including the factual basis therefore. The Parties shall use their best\nefforts to resolve the complaint by face to face meeting conducted within 5 days of such notice of complaint. If the Parties cannot arrive at a\nmutually satisfactory solution to the complaint within 5 business days from the date of such notice of the complaint, the Parties shall attempt to\nresolve the complaint by non-binding mediation before a neutral mediator agreeable to the parties. The Parties shall use best efforts to schedule and\nconduct such mediation within 10 days after the date of the face to face meeting. The mediation shall take place at a neutral location in Dallas\nCounty, Texas.\n12. Attorneys Fees. In any suit to enforce any provisions of this Agreement, The prevailing party in such proceeding shall be entitled to record\nand have awarded its reasonable attorney's fees, costs and expenses of litigation in addition to any other relief to which it may be entitled.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the 1st day of February, 2004.\n/s/ H. Reg. McDAniel M.D.\nH. REG MCDANIEL. M.D.\nMANNATECH, INC.:\nBy: /s/ Sam Caster\nSam Caster\nIts: Chairman and CEO\n4	EX-10.28 8 dex1028.htm CONFIDENTIALITY AND NON-COMPETE AGREEMENT\nExhibit 10.28\nCONFIDENTIALITY AND NON-COMPETE AGREEMENT\nThis Agreement, entered into this 1st day of February, 2004, is by and between Mannatech, Inc., a Texas corporation (the “Company”) and H.\nReg McDaniel (“HM”).\nWHEREAS, HM is a former employee of the Company;\nWHEREAS, HM and the Company entered into a Confidentiality and Non-Compete Agreement dated June 21, 2002 (the “Prior Agreement”)\nwhich expired on June 21, 2003; and\nWHEREAS, the Company wishes to provide certain compensation to HM in exchange for the obligations set forth in this Agreement;\nNOW, THEREFORE, in consideration of these recitals and the promises and agreements set forth in this Agreement, the Parties hereby agree\nas follows:\n1. Nondisclosure: For a period of five (5) years following the execution of this Agreement, HM shall keep and retain in confidence and\nshall not disclose, except as required by the Company or by law, to any person, firm or corporation, or use for HM’s own purposes, any\nConfidential Information that he may have learned or obtained from the Company, or which is new Confidential Information provided in\nconjunction with this Agreement.\na.\nConfidential Information: For the purposes of this section, such Confidential Information shall include, but is not limited to:\n(1) The Company’s operating procedures, processes, formulae, know-how, scientific, technical, or product information, whether\npatentable or not, which is of value to the Company and not generally known by the Company’s competitors;\n(2) All confidential information obtained from third parties and customers concerning their products, business, or the direct sale\nand/or network/multi-level marketing of dietary supplements;\n(3) Confidential business information of the Company, including, but not limited to, marketing and business plans, associates and\ndown line information, strategies, projections, business opportunities, client identities or lists, sales and cost information, internal\nfinancial statements or reports, profit, loss, or margin information, customer price information, compensation plans and strategies;\nand,\n(4) Confidential Information shall not include information which:\n(a) Was in the receiving party’s possession, free of any obligation of confidence, prior to receipt from the disclosing party, as\nproven by the receiving party;\n(b) Is already in the public domain at the time the disclosing party communicated it to the receiving party, or becomes available\nto the public through no breach of this Agreement;\n(c) Is received independently from a third-party free to disclose such information to the receiving party;\n(d) Is developed by the receiving party independently of and without reference to any of the Confidential Information, as\nproven by the receiving party;\n(e) Is disclosed by the receiving party to a third-party, with the express prior written consent of the disclosing party;\n1\n(f) Is disclosed by the receiving party in order to satisfy any legal requirement of any competent government body; provided,\nhowever, that immediately upon the receiving party’s receipt of any such request, the receiving party shall first advise the\ndisclosing party of same before making any disclosure to such body, so that the disclosing party may either interpose an\nobjection to such disclosure before such body, or take action to assure confidential handling of the Confidential Information\nby such body, or take action to protect the Confidential Information which the disclosing party deems appropriate under the\ncircumstances; or\n(g) Is disclosed in the course of a criminal or civil investigation of conduct which allegedly violates any code, statute,\nordinance, rule and/or regulation of the United States or of any state or political subdivision thereof.\nInevitable Use or Disclosure/Irreparable Harm: HM stipulates and agrees that, for a period of twelve (12) calendar months after the execution\nof this Agreement, if HM becomes a spokesperson for, employee, consultant, owner, partner, shareholder, officer, or director, of or shareholder\nof more than 5% of the outstanding stock of a publicly traded company for any business operation that is involved in the direct selling business\ngenerally and/or direct sales and/or network/multi-level marketing of dietary supplements and other similar products sold or distributed by the\nCompany or any of its subsidiaries or in any manufacturing or formulation of such products, (collectively the “Business”) such conduct would\nresult in the inevitable use and/or disclosure of Confidential Information acquired by or imparted to him. Based on this stipulation and\nagreement and for the consideration paid to him under the terms of this Agreement, HM is prohibited from becoming employed by, a\nconsultant for, an officer, director or shareholder of more than 5% of the outstanding stock of, any business operation which competes in the\nBusiness currently engaged in by Company or any of its subsidiaries or affiliates for a period of twelve (12) months after execution of this\nAgreement. The Company will have the right to seek any injunctive relief necessary to prevent such irreparable harm and disclosure.\n2. Non-Competition: In exchange for the mutual promises and obligations contained in this Agreement, and contemporaneous with its\nexecution, the Company promises to deliver to HM or permit HM to acquire, be exposed to, and/or have access to new material, data, or information\nof the Company and/or its customers or clients that is confidential, proprietary and/or a trade secret. This includes, but is not necessarily limited to,\nthe Confidential Information described on the attached Exhibit A, delivered or provided contemporaneously with the execution of this Agreement.\nBy signing this Agreement, HM acknowledges receipt of the Confidential Information described in Exhibit A.\na.\nIn consideration of the mutual promises contained in this Agreement, the sufficiency of which is acknowledged by the parties, HM\nagrees that for a period of twelve (12) calendar months after the execution of this Agreement, he will not, either as a spokesperson, sales\nrepresentative, or independent contractor for, employee, consultant, owner, partner, shareholder, officer, or director, of or shareholder of\nmore than 5% of the outstanding stock of a publicly traded company, for any business operation which competes in the business\ncurrently engaged in by Company or any of its subsidiaries or affiliates, directly or indirectly:\n(1) Sell, recommend, or promote dietary supplements of a competitor of the Company or become a spokesperson for, employee,\nconsultant, owner, partner, shareholder, officer, or director, of or shareholder of more than 5% of the outstanding stock of a\npublicly traded company for any business operation that is in the direct selling business generally, or in any business which\ncompetes in the business currently engaged in by Company or any of its subsidiaries or affiliates.\n(2) Solicit or attempt to solicit any employees, or Mannatech Associates with whom the Company has had any contract during the\nterm of this Agreement or for a period of 12 calendar months preceding the date of this Agreement or otherwise induce such\nCustomers to reduce, terminate, restrict or otherwise alter business relationships with the Company in any fashion;\n2\nNotwithstanding any provision of this Agreement, HM may speak at any trade, professional or industry association or scientific or educational\nmeeting (other than on behalf of a competitor), and may conduct scientific research or evaluations of drugs, dietary supplements or similar\nproducts without disclosing any Confidential Information, and may research and/or develop prescription and/or over the counter drugs.\n(c) In recognition of the broad geographic scope of the Company’s business operations throughout the entire United States, and the ease of\ncompeting with the Company, the restrictions on competition set forth herein are intended to cover those cities and states in the United\nStates of America and foreign countries in which the Company does business on the date of the execution of this Agreement.\n3. Payment for Restrictive Covenants: In consideration for HM’s compliance with the respective obligations under this Agreement, HM shall\nreceive a total fee in the amount of Twenty Five Thousand and no/100 Dollars ($25,000.00) once per month, during the term of this Agreement.\nPayments shall be on the last day of every month. The Company will not withhold or pay any amounts to any federal, state, or local authority with\nrespect to or on behalf of HM. HM thereafter shall be solely responsible for all of federal, state, and local taxes and reports.\n4. Independent Contractor: HM agrees that during the effective period of this Agreement, each will be an independent contractor for federal\nincome tax and all other purposes, and will, accordingly, file, remit and pay all required amounts attributable to compensation paid under the terms\nof this Agreement to any and all taxing authorities, as required. Moreover, as an independent contractor and consultant, there is no agency, employee,\npartnership, or joint venture relationship between the Parties and therefore, HM may not bind the Company in any manner nor enter into any\nagreement on the Company’s behalf. HM shall not represent himself to any person or entity as an employee, officer, agent, representative, official or\nowner (except as a Shareholder or Associate) of the Company.\n5. Authority: Each party hereto represents and warrants to the other that he has the authority to execute and deliver this Agreement and to\nperform hereunder.\n6. Entire Agreement: This Agreement represents the entire understanding of the Parties with regard to the matters addressed herein. Except as\notherwise contemplated hereby, this Agreement constitutes the entire agreement of the Parties, and supersedes all prior agreements and\nunderstandings (oral and written), between or among the Parties with respect to the subject matter hereof and that there are no other written or oral\nagreements between the parties, except the Independent Associates Agreement with respect to Mannatech distributor positions held by HM, jointly\nor individually.\n7. Applicable Law: This Agreement shall be construed in accordance with the laws of the State of Texas, without regard to the conflicts of\nlaws or principles of such state.\n8. Severability: If any provision or term of this Agreement is held to be illegal, invalid, or unenforceable, such provision or term shall be fully\nseverable; this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised part of this\nAgreement; and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid, or\nunenforceable provision or by its severance from this Agreement. Furthermore, in lieu of each such illegal, invalid, or unenforceable provision or\nterm, there shall be added automatically as a part of this Agreement another provision or term as similar to the illegal, invalid, or unenforceable\nprovision as may be possible and that is legal, valid, and enforceable.\n9. Termination: Notwithstanding anything to the contrary in this Agreement, the Company may terminate this Agreement and all obligations of\nall Parties hereto, including, upon termination of this Agreement, the Company’s obligations to make any further monthly payments contemplated by\nthis Agreement in the event of HM breaches any of the terms of this Agreement, and the failure to cure such breach within 30 days following notice\nof such breach by the Company. HM may explain in writing his response to a written notice from the Company describing a claimed breach within\nten (10) business days after receipt of such notice from the Company. The decision to terminate this Agreement will be made by Mannatech’s Board\nof Directors in its sole and exclusive discretion.\n10. Non-Disparagement. HM further agrees to refrain from making disparaging comments about Mannatech, its executives, employees,\nIndependent Associates and/or its proprietary products in any manner during the term of this Agreement and after the Agreement terminates, for any\nreason. The Parties agree to act in a manner consistent with favorable advancement and promotion of the Company and its products. This covenant\nshall also survive the termination of this Agreement.\n3\n11. Disputes. In the event of a dispute between the Parties and before any legal action is commenced, the Parties agree that the complaining\nparty shall give specific and detailed notice to the other Party of the complaint, including the factual basis therefore. The Parties shall use their best\nefforts to resolve the complaint by face to face meeting conducted within 5 days of such notice of complaint. If the Parties cannot arrive at a\nmutually satisfactory solution to the complaint within 5 business days from the date of such notice of the complaint, the Parties shall attempt to\nresolve the complaint by non-binding mediation before a neutral mediator agreeable to the parties. The Parties shall use best efforts to schedule and\nconduct such mediation within 10 days after the date of the face to face meeting. The mediation shall take place at a neutral location in Dallas\nCounty, Texas.\n12. Attorneys Fees. In any suit to enforce any provisions of this Agreement, The prevailing party in such proceeding shall be entitled to record\nand have awarded its reasonable attorney’s fees, costs and expenses of litigation in addition to any other relief to which it may be entitled.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the 1st day of February, 2004.\n/s/ H. Reg. McDAniel M.D.\nH. REG MCDANIEL. M.D .\nMANNATECH, INC.:\nBy: /s/ Sam Caster\nSam Caster\nIts: Chairman and CEO\n4
+6defa90b54cb93c0672489fd94d9e1b3.pdf	effective_date jurisdiction party	EX-10 .1 2 a16-1187_1ex10d1.htm EX-10.1\nAttachment B\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS AGREEMENT is entered into between THADDEUS DUPPER and EVOLVING SYSTEMS, INC. as of the Effective Date noted on\nthe signature page.\nRECITALS\nThe parties contemplate entering into a business relationship (“Purpose”) during which one party (“Disclosing Party”) may disclose to the other party (“Receiving Party”) certain confidential or proprietary information; and\nWith respect to the information exchanged between the parties, the parties agree as follows:\n1.\nDefinition of Confidential Information. “Confidential Information” means information, including, but not be limited\nto, performance, sales, financial, contractual and special marketing information, ideas, technical data, and concepts originated by the\nDisclosing Party and furnished to a Receiving Party, whether orally, in writing or any other medium, which information the\nDisclosing Party desires to protect against unrestricted disclosure or competitive use which (i) has not previously been published or\notherwise disclosed to the general public, (ii) has not previously been made available without restriction to the Receiving Party or\nothers, (iii) is marked as, indicated as, or could be reasonably construed to be confidential or proprietary.\n2.\nObligation to Maintain Confidentiality and Limitation on Use. The Receiving Party will:\na.\nhold the Confidential Information in confidence, exercising a degree of care not less than the care used by such party to\nprotect its own proprietary or confidential information that it does not wish to disclose, and in no event less than a reasonable degree\nof care;\nb.\nrestrict disclosure of the Confidential Information solely to those Representatives with a need to know and not disclose it to\nany other person;\nc.\nadvise those Representatives of their obligations with respect to the Confidential Information; and\nd.\nuse the Confidential Information only in connection with the Purpose and reproduce such Confidential Information only to\nthe extent necessary for such Purpose.\nThe term “Representatives” means the Affiliates of either party and the respective directors, officers, employees, attorneys, consultants and other agents and advisors of either party or of the Affiliates of either party. An “Affiliate”\nmeans any entity that directly or indirectly controls, is controlled by or is under common control with a party, whether such control arises through the ownership of voting stock, by contract, or otherwise. Each party will be responsible for\nany breach of this Agreement by its respective Representatives and will take all reasonably necessary measures to restrain its Representatives from unauthorized disclosure or use of Confidential Information.\n3.\nExclusions. The Receiving Party will have no obligation to preserve the confidential nature of any information which:\na.\nwas previously known to such party free of any obligation to keep it confidential; or\nb.\nis or becomes publicly available by means other than unauthorized disclosure; or\nc.\nis developed by or on behalf of such party independent of any Confidential Information furnished under this Agreement; or\nd.\nis received from a third party whose disclosure does not violate any confidentiality obligation.\n4.\nMandatory Disclosure Exemption. In the event the Receiving Party or its employees need (for securities law purposes) to\nmake disclosures of Confidential Information or become legally compelled (by oral questions, interrogatories, requests for\ninformation or documents, subpoenas, civil investigative demands or otherwise) to disclose any Confidential Information of the\nDisclosing Party, the Receiving Party will provide the Disclosing Party with prompt written notice so that (a) the Disclosing Party\ncan work with the Receiving Party to limit the disclosure to the greatest extent possible consistent with legal obligations (it being\nunderstood that disclosure of the name of the other party will never be made without that party’s prior written consent) or (b) the\nDisclosing Party may seek a protective order or other appropriate remedy, or if the Disclosing Party so directs, the Receiving Party\nwill exercise its reasonable best efforts to obtain a protective order or other appropriate remedy at the Disclosing Party’s reasonable\nexpense. Failing the entry of a protective order or other appropriate remedy or receipt of a waiver hereunder, the Receiving Party will\nfurnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be furnished and will\nexercise its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential\nInformation.\n4\n5.\nNo Rights Granted. All Confidential Information and all tangible forms of such information received under this\nAgreement by the Receiving Party will remain the property of Disclosing Party. Nothing contained in this Agreement will be\nconstrued as (i) requiring Disclosing Party to disclose, or Receiving Party to accept, any particular information, or (ii) granting to\nReceiving Party a license, either express or implied, under any patent, copyright, trade secret, or other intellectual property rights now\nor hereafter owned, obtained or licensable by Disclosing Party. Neither this Agreement, nor the disclosure of Confidential\nInformation under this Agreement will constitute or imply any promise or any commitment by either party with respect to any other\npresent or future transaction. Each party agrees that it will not modify or create other works with the other party’s Confidential\nInformation, or reverse engineer or decompile or disassemble any software programs contained therein.\n6.\nNo Warranty. All Confidential Information is provided “As Is”, without warranty of any kind. In particular, the parties do\nnot warrant, assure or guarantee that the information disclosed constitutes a non-infringement of other third party trademarks, patents,\ncopyrights, mask works or any other intellectual property right in the information disclosed. Receiving Party agrees that Disclosing\nParty will not have liability or responsibility for any errors or omissions in, or any business decisions made by Receiving Party in\nreliance on, any Confidential Information disclosed by Disclosing Party under this Agreement.\n7.\nRemedies. Each party agrees that the Disclosing Party would be irreparably injured by a breach of this Agreement by the\nReceiving Party or its Representatives and that the Disclosing Party will be entitled to equitable relief, including injunctive relief and\nspecific performance, in the event of any breach of the provisions of this Agreement. Such remedies will not be deemed to be the\nexclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity.\n8.\nCompliance with Export Regulations. Each Party agrees that it will not export or re-export outside the United States,\neither directly or indirectly, any Confidential Information without first obtaining the prior written approval of the Disclosing Party,\nwhich may entail obtaining clearance or licensing by a governmental authority.\n9.\nTerm. The term of this Agreement will commence on the Effective Date and will continue for the term of the Consulting\nServices Agreement entered into between the parties (the “Term”). A party’s obligations to protect Confidential Information which it\nhas received during the Term will survive for a period of three (3) years after the date of disclosure of such Confidential Information;\nprovided, however, that a party’s obligation to protect any Confidential Information which is a trade secret under applicable law will\ncontinue as long as such Confidential Information remains a trade secret under applicable law.\n10.\nGoverning Law. This Agreement will be governed by and construed under the laws of the State of Colorado. Each party\nirrevocably consents to the jurisdiction and venue of the state and federal courts located in Denver, Colorado.\n11.\nEntire Agreement. This Agreement constitutes the entire understanding between the parties with respect to Confidential\nInformation provided in connection with the Purpose and supersedes all prior agreements between the parties with respect to\nConfidential Information provided in connection with Purpose. No amendment or modification of this Agreement will be valid or\nbinding on the parties unless made in writing and executed on behalf of each party by its duly authorized representative. If any\nprovision of this Agreement is found to be unenforceable, the remainder will be enforced as fully as possible and the unenforceable\nprovision will be deemed to be modified to the limited extent required to permit its enforcement in a manner most closely\napproximating the intention of the parties as expressed in this Agreement.\n12.\nNotices. All notices and other communications provided for or permitted under this Agreement will be in writing, made by\nhand delivery; first class mail, postage prepaid, return receipt requested; or by reliable overnight courier addressed to a party at the\naddress indicated in this Agreement. Notices will be deemed delivered when received by the party being notified, or, if sent via first\nclass mail as above, will be deemed delivered four days after such remittance.\n13.\nAssignment. Neither this Agreement nor any of the rights and obligations created in this Agreement may be assigned, in\nwhole or in part, by either party, without the prior written consent of the other party. Any assignment contrary to the foregoing is\nvoid. This Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and\nassigns.\n5\n14.\nAdministrative Ease. The parties agree that this Agreement may be executed in counterparts, and that such counterpart\nsignatures will be considered effective if provided by PDF or facsimile transmission.\nEach party has caused this Agreement to be executed on its behalf as of the 1st day of January, 2016 (“Effective Date”).\nTHADDEUS DUPPER\n/s/ THADDEUS DUPPER\nEVOLVING SYSTEMS, INC .\nBy: /s/ THOMAS THEKKETHALA\nThomas Thekkethala\nTitle: CEO\n6	EX-10.l 2 a16-1187_1eX10d1.htm EX-10.l\nAttachment B\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS AGREEMENTiS entered into between THADDEUS DUPPER and EVOLVING SYSTEMS, INC. as of the Effective Date noted on\nthe signature page.\nRE C ITA L S\nThe parties contemplate entering into a business relationship ("Purpose") during which one party ("Disclosing Party”) may disclose to the other party ("Receiving Party”) certain confidential or proprietary information; and\nWith respect to the information exchanged between the parties, the parties agree as follows:\n1. Definition of C onfidential Information. ”C onfidential Information” means information, including, but not be limited\nto, performance, sales, financial, contractual and special marketing information, ideas, technical data, and concepts originated by the\nDisclosing Party and furnished to a Receiving Party, whether orally, in writing or any other medium, which information the\nDisclosing Party desires to protect against unrestricted disclosure or competitive use which (i) has not previously been published or\notherwise disclosed to the general public, (ii) has not previously been made available without restriction to the Receiving Party or\nothers, (iii) is marked as, indicated as, or could be reasonably construed to be confidential or proprietary.\n2. Obligation to Maintain Confidentiality and Limitation on Use. The Receiving Party will:\na. hold the Confidential Information in confidence, exercising a degree of care not less than the care used by such party to\nprotect its own proprietary or confidential information that it does not wish to disclose, and in no event less than a reasonable degree\nof care;\nb. restrict disclosure of the Confidential Information solely to those Representatives with a need to know and not disclose it to\nany other person;\nor advise those Representatives of their obligations with respect to the Confidential Information; and\nd. use the Confidential Information only in connection with the Purpose and reproduce such Confidential Information only to\nthe extent necessary for such Purpose.\nThe term "Represenmtives" means the Affiliates of either party and the respective directors, officers, employees, attorneys, consultants and other agents and advisors of either party or of the Affiliates of either party. An "Affiliate"\nmeans any entity that directly or indirectly controls, is contiolled by or is under common control with a party, whether such control arises through the ownership of voting stock, by contract, or otherwise. Each party will be responsible for\nany breach of this Agreement by its respective Representatives and will take all reasonably necessary measures to restiain its Representatives from unauthorized disclosure or use of Confidential Information.\n3. Exclusions. The Receiving Party will have no obligation to preserve the confidential nature of any information which:\na. was previously known to such party free of any obligation to keep it confidential; or\nb. is or becomes publicly available by means other than unauthorized disclosure; or\nc. is developed by or on behalf of such party independent of any Confidential Information furnished under this Agreement; or\nd. is received from a third party whose disclosure does not violate any confidentiality obligation.\n4. Mandatory Disclosure Exemption. In the event the Receiving Party or its employees need (for securities law purposes) to\nmake disclosures of Confidential Information or become legally compelled (by oral questions, interrogatories, requests for\ninformation or documents, subpoenas, civil investigative demands or otherwise) to disclose any Confidential Information of the\nDisclosing Party, the Receiving Party will provide the Disclosing Party with prompt written notice so that (a) the Disclosing Party\ncan work with the Receiving Party to limit the disclosure to the greatest extent possible consistent with legal obligations (it being\nunderstood that disclosure of the name of the other party will never be made without that party’ s prior written consent) or (b) the\nDisclosing Party may seek a protective order or other appropriate remedy, or if the Disclosing Party so directs, the Receiving Party\nwill exercise its reasonable best efforts to obtain a protective order or other appropriate remedy at the Disclosing Party’ s reasonable\nexpense. Failing the entry of a protective order or other appropriate remedy or receipt of a waiver hereunder, the Receiving Party will\nfurnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be furnished and will\nexercise its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential\nInformation.\n \n5. No Rights G ranted. All Confidential Information and all tangible forms of such information received under this\nAgreement by the Receiving Party will remain the property of Disclosing Party. Nothing contained in this Agreement will be\nconstrued as (i) requiring Disclosing Party to disclose, or Receiving Party to accept, any particular information, or (ii) granting to\nReceiving Party a license, either express or implied, under any patent, copyright, trade secret, or other intellectual property rights now\nor hereafter owned, obtained or licensable by Disclosing Party. Neither this Agreement, nor the disclosure of Confidential\nInformation under this Agreement will constitute or imply any promise or any commitment by either party with respect to any other\npresent or future transaction. Each party agrees that it will not modify or create other works with the other party’ s Confidential\nInformation, or reverse engineer or decompile or disassemble any software programs contained therein.\na. No Warranty. All Confidential Information is provided ”As Is", without warranty of any kind. In particular, the parties do\nnot warrant, assure or guarantee that the information disclosed constitutes a non-infringement of other third party trademarks, patents,\ncopyrights, mask works or any other intellectual property right in the information disclosed. Receiving Party agrees that Disclosing\nParty will not have liability or responsibility for any errors or omissions in, or any business decisions made by Receiving Party in\nreliance on, any Confidential Information disclosed by Disclosing Party under this Agreement.\n7. Remedies. Each party agrees that the Disclosing Party would be irreparably injured by a breach of this Agreement by the\nReceiving Party or its Representatives and that the Disclosing Party will be entitled to equitable relief, including injunctive relief and\nspecific performance, in the event of any breach of the provisions of this Agreement. Such remedies will not be deemed to be the\nexclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity.\n8. Compliance with Export Regulations. Each Party agrees that it will not export or reexport outside the United States,\neither directly or indirectly, any Confidential Information without first obtaining the prior written approval of the Disclosing Party,\nwhich may entail obtaining clearance or licensing by a governmental authority.\n9. Term. The term of this Agreement will commence on the Effective Date and will continue for the term of the Consulting\nServices Agreement entered into between the parties (the ”Term"). A party’ s obligations to protect Confidential Information which it\nhas received during the Term will survive for a period of three (3) years after the date of disclosure of such Confidential Information;\nprovided, however, that a party’ s obligation to protect any Confidential Information which is a trade secret under applicable law will\ncontinue as long as such Confidential Information remains a trade secret under applicable law.\n10. G overning Law. This Agreement will be governed by and construed under the laws of the State of Colorado. Each party\nirrevocably consents to the jurisdiction and venue of the state and federal courts located in Denver, Colorado.\n11. Entire Agreement. This A greement constitutes the entire understanding between the parties with respect to Confidential\nInformation provided in connection with the Purpose and supersedes all prior agreements between the parties with respect to\nConfidential Information provided in connection with Purpose. No amendment or modification of this Agreement will be valid or\nbinding on the parties unless made in writing and executed on behalf of each party by its duly authorized representative. If any\nprovision of this Agreement is found to be unenforceable, the remainder will be enforced as fully as possible and the unenforceable\nprovision will be deemed to be modified to the limited extent required to permit its enforcement in a manner most closely\napproximating the intention of the parties as expressed in this Agreement.\n12. Notices. All notices and other communications provided for or permitted under this Agreement will be in writing, made by\nhand delivery; first class mail, postage prepaid, return receipt requested; or by reliable overnight courier addressed to a party at the\naddress indicated in this Agreement. Notices will be deemed delivered when received by the party being notified, or, if sent via first\nclass mail as above, will be deemed delivered four days after such remittance.\n13. Assignment. Neither this Agreement nor any of the rights and obligations created in this Agreement may be assigned, in\nwhole or in part, by either party, without the prior written consent of the other party. Any assignment contrary to the foregoing is\nvoid. This Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and\nassigns.\n \n14. Administrative Ease. The parties agree that this Agreement may be executed in counterparts, and that such counterpart\nsignatures will be considered effective if provided by PDF or facsimile transmission.\nEach party has caused this Agreement to be executed on its behalf as of the lst day Of J anuaIy , 2 016 (”E ffective Date" ) .\nTHADDEUS DUPPER\n/S/THADDEUS DUPPER\nEVOLVING SYSTEMS, INC.\nBy: /S/ THOMAS THEKKETHALA\nomas ER Re 5 a\nTitle: CEO	EX-10.1 2a16-1187 lex10d1.htm EX-10.1\nAttachment B\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS\nAGREEMENT is entered into between THADDEUS DUPPER and EVOLVING SY STEMS, INC. as of the Effective Date noted\non\nthe signature page.\nRECITALS\nThe parties contemplate entering into a business relationship "Purpose" during which one party ("Disclosing Party") may disclose to the other party ("Receiving Party") certain confidential or proprietary information; and\nWith respect to the information exchanged between the parties, the parties agree as follows:\n1.\nDefinition of Confidential Information. Confidential Information" means information, including, but not be limited\nto, performance, sales, financial, contractual and special marketing information, ideas, technical data, and concepts originated by the\nDisclosing Party and furnished to a Receiving Party, whether orally, in writing or any other medium, which information the\nDisclosing Party desires to protect against unrestricted disclosure or competitive use which (i) has not previously been published or\notherwise disclosed to the general public, (ii) has not previously been made available without restriction to the Receiving Party or\nothers, (iii) is marked as, indicated as, or could be reasonably construed to be confidential or proprietary.\n2.\nObligation to Maintain Confidentiality and Limitation on Use. The Receiving Party will:\na.\nhold the Confidential Information in confidence, exercising a degree of care not less than the care used by such party to\nprotect its own proprietary or confidential information that it does not wish to disclose, and in no event less than a reasonable degree\nof care;\nb.\nrestrict disclosure of the Confidential Information solely to those Representatives with a need to know and not disclose it to\nany other person;\nc.\nadvise those Representatives of their obligations with respect to the Confidential Information; and\nd.\nuse the Confidential Information only in connection with the Purpose and reproduce such Confidential Information only to\nthe extent necessary for such Purpose.\nThe term "Representatives" means the Affiliates of either party and the respective directors, officers, employees, attorneys, consultants and other agents and advisors of either party or of the Affiliates of either party. An Affiliate"\nmeans any entity that directly or indirectly controls, is controlled by or is under common control with a party, whether such control arises through the ownership of voting stock by contract, or otherwise. Each party will be responsible\nfor\nany breach of this Agreement by its respective Representatives and will take all reasonably necessary measures to restrain its Representatives from unauthorized disclosure or use of Confidential Inforation.\n3.\nExclusions. The Receiving Party will have no obligation to preserve the confidential nature of any information which:\nwas previously known to such party free of any obligation to keep it confidential; or\nb.\nis or becomes publicly available by means other than unauthorized disclosure; or\nis developed by or on behalf of such party independent of any Confidentia Information furnished under this A greement; or\nd.\nis received from a third party whose disclosure does not violate any confidentiality obligation.\n4.\nMandatory Disclosure Exemption. In the event the Receiving Party or its employees need (for securities law purposes) to\nmake disclosures of Confidential Information or become legally compelled (by oral questions, interrogatories, requests for\ninformation or documents, subpoenas, civil investigative demands or otherwise) to disclose any Confidential Information of the\nDisclosing Party, the Receiving Party will provide the Disclosing Party with prompt written notice so that (a) the Disclosing Party\ncan work with the Receiving Party to limit the disclosure to the greatest extent possible consistent with legal obligations (it being\nunderstood that disclosure of the name of the other party will never be made without that party's prior written consent) or (b) the\nDisclosing Party may seek a protective order or other appropriate remedy, or if the Disclosing Party so directs, the Receiving Party\nwill exercise its reasonable best efforts to obtain a protective order or other appropriate remedy at the Disclosing Party's reasonable\nexpense. Failing the entry of a protective order or other appropriate remedy or receipt of a waiver hereunder, the Receiving Party will\nfurnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be furnished and will\nexercise its reasonable best efforts to obtain reliable assurance that confidentia treatment will be accorded such Confidential\nInformation.\n4\n5.\nNo Rights G ranted. All Confidentia Information and all tangible forms of such information received under this\nA greement by the Receiving Party will remain the property of Disclosing Party. Nothing contained in this A greement will be\nconstrued as (i) requiring Disclosing Party to disclose, or Receiving Party to accept, any particular information, or (ii) granting to\nReceiving Party a license, either express or implied, under any patent, copyright, trade secret, or other intellectual property rights now\nor hereafter owned, obtained or licensable by isclosing Party Neither this A greement, nor the disclosure of Confidentia\nInformation under this A greement will constitute or imply any promise or any commitment by either party with respect to any other\npresent or future transaction. Each party agrees that it will not modify or create other works with the other party's Confidential\nInformation, or reverse engineer or decompile or disassemble any software programs contained therein.\n6.\nNo Warranty. All Confidential Information is provided "As Is", without warranty of any kind. In particular, the parties do\nnot warrant, assure or guarantee that the information disclosed constitutes a non-infringement of other third party trademarks, patents,\ncopyrights, mask works or any other intellectual property right in the information disclosed. Receiving Party agrees that Disclosing\nParty will not have liability or responsibility for any errors or omissions in, or any business decisions made by Receiving Party in\nreliance on, any Confidential Information disclosed by Disclosing Party under this A greement.\n7.\nRemedies. Each party agrees that the Disclosing Party would be irreparably injured by a breach of this A greement by the\nReceiving Party or its Representatives and that the Disclosing Party will be entitled to equitable relief including injunctive relief and\nspecific performance, in the event of any breach of the provisions of this greement. Such remedies will not be deemed to be the\nexclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity.\n8.\nCompliance with Export Regulations. Each Party agrees that it will not export or re-export outside the United States,\neither directly or indirectly, any Confidential Information without first obtaining the prior written approval of the Disclosing Party,\nwhich may entail obtaining clearance or licensing by a governmental authority.\n9.\nTerm. The term of this A greement will commence on the Effective Date and will continue for the term of the Consulting\nServices greement entered into between the parties (the "Term"). A party's obligations to protect Confidential Information which it\nhas received during the Term will survive for a period of three (3) years after the date of disclosure of such Confidential Information;\nprovided, however, that a party's obligation to protect any Confidential Information which is a trade secret under applicable law will\ncontinue as long as such Confidential Information remains a trade secret under applicable law.\n10.\nGoverning Law. This A greement will be governed by and construed under the laws of the State of Colorado. Each party\nirrevocably consents to the jurisdiction and venue of the state and federal courts located in Denver, Colorado.\n11.\nEntire Agreement. This A greement constitutes the entire understanding between the parties with respect to Confidential\nInformation provided in connection with the Purpose and supersedes all prior agreements between the parties with respect to\nConfidential Information provided in connection with Purpose. No amendment or modification of this greement will be valid or\nbinding on the parties unless made in writing and executed on behalf of each party by its duly authorized representative If any\nprovision of this A greement is found to be unenforceable, the remainder will be enforced as fully as possible and the unenforceable\nprovision will be deemed to be modified to the limited extent required to permit its enforcement in a manner most closely\napproximating the intention of the parties as expressed in this greement.\n12.\nNotices. All notices and other communications provided for or permitted under this A greement will be in writing, made by\nhand delivery; first class mail, postage prepaid, return receipt requested; or by reliable overnight courier addressed to a party at the\naddress indicated in this Agreement. Notices will be deemed delivered when received by the party being notified, or, if sent via first\nclass mail as above, will be deemed delivered four days after such remittance.\n13.\nAssignment. Neither this A greement nor any of the rights and obligations created in this Agreement may be assigned, in\nwhole or in part, by either party, without the prior written consent of the other party Any assignment contrary to the foregoing is\nvoid. This A greement will be binding upon and inure to the benefit of the parties and their respective permitted successors and\nassigns.\n5\n14.\nAdministrative Ease. The parties agree that this A greement may be executed in counterparts, and that such counterpart\nsignatures will be considered effective if provided by PDF or facsimile transmission.\nEach party has caused this Agreement to be executed on its behalf as of the\n1st day of January, 2016 ("Effective Date").\nTHADDEUS DUPPER\nS/THADDEUS DUPPER\nEVOLVING SY STEMS INC.\nBy:\n/s/ THOMAS THEKKETHALA\nIhomas Ihekkethala\nTitle: CEO\n6	EX-10 .1 2 a16-1187_1ex10d1.htm EX-10.1\nAttachment B\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS AGREEMENT is entered into between THADDEUS DUPPER and EVOLVING SYSTEMS, INC. as of the Effective Date noted on\nthe signature page.\nRECITALS\nThe parties contemplate entering into a business relationship (“Purpose”) during which one party (“Disclosing Party”) may disclose to the other party (“Receiving Party”) certain confidential or proprietary information; and\nWith respect to the information exchanged between the parties, the parties agree as follows:\n1.\nDefinition of Confidential Information. “Confidential Information” means information, including, but not be limited\nto, performance, sales, financial, contractual and special marketing information, ideas, technical data, and concepts originated by the\nDisclosing Party and furnished to a Receiving Party, whether orally, in writing or any other medium, which information the\nDisclosing Party desires to protect against unrestricted disclosure or competitive use which (i) has not previously been published or\notherwise disclosed to the general public, (ii) has not previously been made available without restriction to the Receiving Party or\nothers, (iii) is marked as, indicated as, or could be reasonably construed to be confidential or proprietary.\n2.\nObligation to Maintain Confidentiality and Limitation on Use. The Receiving Party will:\na.\nhold the Confidential Information in confidence, exercising a degree of care not less than the care used by such party to\nprotect its own proprietary or confidential information that it does not wish to disclose, and in no event less than a reasonable degree\nof care;\nb.\nrestrict disclosure of the Confidential Information solely to those Representatives with a need to know and not disclose it to\nany other person;\nc.\nadvise those Representatives of their obligations with respect to the Confidential Information; and\nd.\nuse the Confidential Information only in connection with the Purpose and reproduce such Confidential Information only to\nthe extent necessary for such Purpose.\nThe term “Representatives” means the Affiliates of either party and the respective directors, officers, employees, attorneys, consultants and other agents and advisors of either party or of the Affiliates of either party. An “Affiliate”\nmeans any entity that directly or indirectly controls, is controlled by or is under common control with a party, whether such control arises through the ownership of voting stock, by contract, or otherwise. Each party will be responsible for\nany breach of this Agreement by its respective Representatives and will take all reasonably necessary measures to restrain its Representatives from unauthorized disclosure or use of Confidential Information.\n3.\nExclusions. The Receiving Party will have no obligation to preserve the confidential nature of any information which:\na.\nwas previously known to such party free of any obligation to keep it confidential; or\nb.\nis or becomes publicly available by means other than unauthorized disclosure; or\nc.\nis developed by or on behalf of such party independent of any Confidential Information furnished under this Agreement; or\nd.\nis received from a third party whose disclosure does not violate any confidentiality obligation.\n4.\nMandatory Disclosure Exemption. In the event the Receiving Party or its employees need (for securities law purposes) to\nmake disclosures of Confidential Information or become legally compelled (by oral questions, interrogatories, requests for\ninformation or documents, subpoenas, civil investigative demands or otherwise) to disclose any Confidential Information of the\nDisclosing Party, the Receiving Party will provide the Disclosing Party with prompt written notice so that (a) the Disclosing Party\ncan work with the Receiving Party to limit the disclosure to the greatest extent possible consistent with legal obligations (it being\nunderstood that disclosure of the name of the other party will never be made without that party’s prior written consent) or (b) the\nDisclosing Party may seek a protective order or other appropriate remedy, or if the Disclosing Party so directs, the Receiving Party\nwill exercise its reasonable best efforts to obtain a protective order or other appropriate remedy at the Disclosing Party’s reasonable\nexpense. Failing the entry of a protective order or other appropriate remedy or receipt of a waiver hereunder, the Receiving Party will\nfurnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be furnished and will\nexercise its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential\nInformation.\n4\n5.\nNo Rights Granted. All Confidential Information and all tangible forms of such information received under this\nAgreement by the Receiving Party will remain the property of Disclosing Party. Nothing contained in this Agreement will be\nconstrued as (i) requiring Disclosing Party to disclose, or Receiving Party to accept, any particular information, or (ii) granting to\nReceiving Party a license, either express or implied, under any patent, copyright, trade secret, or other intellectual property rights now\nor hereafter owned, obtained or licensable by Disclosing Party. Neither this Agreement, nor the disclosure of Confidential\nInformation under this Agreement will constitute or imply any promise or any commitment by either party with respect to any other\npresent or future transaction. Each party agrees that it will not modify or create other works with the other party’s Confidential\nInformation, or reverse engineer or decompile or disassemble any software programs contained therein.\n6.\nNo Warranty. All Confidential Information is provided “As Is”, without warranty of any kind. In particular, the parties do\nnot warrant, assure or guarantee that the information disclosed constitutes a non-infringement of other third party trademarks, patents,\ncopyrights, mask works or any other intellectual property right in the information disclosed. Receiving Party agrees that Disclosing\nParty will not have liability or responsibility for any errors or omissions in, or any business decisions made by Receiving Party in\nreliance on, any Confidential Information disclosed by Disclosing Party under this Agreement.\n7.\nRemedies. Each party agrees that the Disclosing Party would be irreparably injured by a breach of this Agreement by the\nReceiving Party or its Representatives and that the Disclosing Party will be entitled to equitable relief, including injunctive relief and\nspecific performance, in the event of any breach of the provisions of this Agreement. Such remedies will not be deemed to be the\nexclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity.\n8.\nCompliance with Export Regulations. Each Party agrees that it will not export or re-export outside the United States,\neither directly or indirectly, any Confidential Information without first obtaining the prior written approval of the Disclosing Party,\nwhich may entail obtaining clearance or licensing by a governmental authority.\n9.\nTerm. The term of this Agreement will commence on the Effective Date and will continue for the term of the Consulting\nServices Agreement entered into between the parties (the “Term”). A party’s obligations to protect Confidential Information which it\nhas received during the Term will survive for a period of three (3) years after the date of disclosure of such Confidential Information;\nprovided, however, that a party’s obligation to protect any Confidential Information which is a trade secret under applicable law will\ncontinue as long as such Confidential Information remains a trade secret under applicable law.\n10.\nGoverning Law. This Agreement will be governed by and construed under the laws of the State of Colorado. Each party\nirrevocably consents to the jurisdiction and venue of the state and federal courts located in Denver, Colorado.\n11.\nEntire Agreement. This Agreement constitutes the entire understanding between the parties with respect to Confidential\nInformation provided in connection with the Purpose and supersedes all prior agreements between the parties with respect to\nConfidential Information provided in connection with Purpose. No amendment or modification of this Agreement will be valid or\nbinding on the parties unless made in writing and executed on behalf of each party by its duly authorized representative. If any\nprovision of this Agreement is found to be unenforceable, the remainder will be enforced as fully as possible and the unenforceable\nprovision will be deemed to be modified to the limited extent required to permit its enforcement in a manner most closely\napproximating the intention of the parties as expressed in this Agreement.\n12.\nNotices. All notices and other communications provided for or permitted under this Agreement will be in writing, made by\nhand delivery; first class mail, postage prepaid, return receipt requested; or by reliable overnight courier addressed to a party at the\naddress indicated in this Agreement. Notices will be deemed delivered when received by the party being notified, or, if sent via first\nclass mail as above, will be deemed delivered four days after such remittance.\n13.\nAssignment. Neither this Agreement nor any of the rights and obligations created in this Agreement may be assigned, in\nwhole or in part, by either party, without the prior written consent of the other party. Any assignment contrary to the foregoing is\nvoid. This Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and\nassigns.\n5\n14.\nAdministrative Ease. The parties agree that this Agreement may be executed in counterparts, and that such counterpart\nsignatures will be considered effective if provided by PDF or facsimile transmission.\nEach party has caused this Agreement to be executed on its behalf as of the 1st day of January, 2016 (“Effective Date”).\nTHADDEUS DUPPER\n/s/ THADDEUS DUPPER\nEVOLVING SYSTEMS, INC .\nBy: /s/ THOMAS THEKKETHALA\nThomas Thekkethala\nTitle: CEO\n6
+7104ac1e62f026d1659baf8edb59cef2.pdf	effective_date jurisdiction party term	Exhibit 99.3/A\nCONFIDENTIALITY/STANDSTILL AGREEMENT\nTHIS AGREEMENT is dated as of the 26th day of September, 2007\nAMONG:\nSWANSI HOLDINGS CORP., a Panama corporation and having an office for business located at Nerine\nFiduciaire S.A., Rue des Terreaux-du-Temple 4, Case postale 5023, CH - 1211 Geneva 11, Switzerland\n(“Swansi”);\nAND:\nZULU ENERGY CORP., a Colorado corporation having an office for business located at 2610– 1066 West\nHastings Street, Vancouver, BC V6E 3X2 (“Zulu”)\nWHEREAS Swansi and Zulu are willing to enter into discussions regarding a possible acquisition by Zulu of\nshares of Nyati Resources Botswana (PTY) Limited, a Botswana corporation (“Nyati Botswana”) from Swansi\n(the “Acquisition”).\nNOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the\nexchange of Confidential Information (as defined herein) between Swansi and Zulu as may be reasonably\nrequested from time to time and other good and valuable consideration, the receipt and sufficiency of which is\nhereby acknowledged, the parties hereto hereby agree as follows:\nARTICLE 1\nCONFIDENTIALITY\nConfidential Information\n1.1\nFor purposes of this Agreement, the term confidential information (“Confidential Information”) shall\nmean all financial and other nonpublic information, together with notes, analyses, compilations, studies or\nother documents prepared or provided by the disclosing party in connection with the evaluation of the\nAcquisition. Confidential Information shall also include proprietary information concerning the respective\nbusinesses, operations and assets of the parties, including, without limitation, trade secrets, techniques, models,\ndata, documentation, code, research, development, processes, procedures, business strategy, marketing\ntimetables, pricing policies, financial information and other information of a similar nature, whether or not\nreduced to writing or other tangible form. Confidential Information shall not include (a) information known to\na receiving party (the “Receiving Party”) or Representatives prior to obtaining the same from the disclosing\nparty (the “Disclosing Party”); (b) information in the public domain at the time of disclosure by Disclosing\nParty; or (c) information approved for release by written authorization of an authorized officer of the\nDisclosing Party.\nRepresentatives\n1.2\nFor purposes of this Agreement, the term representatives (“Representatives”) shall mean each party,\ntheir directors, officers and employees, as well as their counsel, accountants, consultants and other\nrepresentatives in connection with the transactions contemplated hereby provided that such persons are bound\nby confidentiality agreements no less stringent than those in this Agreement.\nUse of Confidential Information\n1.3\nEach party will use the Confidential Information it receives solely for the purpose of evaluating the\nAcquisition and not for any other purpose and, except to the extent permitted by paragraph 1.5 hereof, will\nkeep such Confidential Information strictly confidential, provided, however, that Confidential Information may\nbe disclosed to such Representatives as needed to know such information for the purpose of evaluating and\nnegotiating the terms of the Acquisition and for no other purpose.\nNon-Disclosure\n1.4\nExcept to the extent permitted by paragraph 1.5 hereof, for a period of twelve (12) months following\nthe conclusion of any discussions or negotiations relating to the Acquisition, the parties hereto will direct their\nrespective Representatives to not disclose to any person or entity that the Confidential Information has been\nmade available, that discussions or negotiations are taking place or have recently taken place concerning the\nAcquisition, or any of the terms, conditions or other facts with respect to any other possible transaction\nbetween the parties hereto.\nProperty Rights Maintained\n1.5\nConfidential Information disclosed shall be and shall remain the property of the Disclosing Party. In the\nevent that the parties hereto do not proceed with the Acquisition by October 31, 2007, and, in any event, within\nfive (5) days after being so requested by either party, both parties shall return or destroy all documents\nfurnished by the other. Any oral Confidential Information shall remain subject to the confidentiality obligations\nset forth in this Agreement.\nARTICLE 2\nSTANDSTILL\nZulu and its principal shareholders agree that until October 31, 2007, or such shorter period if either\nparty notifies the other that it no longer wishes to proceed with the Acquisition (“Term of this Agreement”),\nthat they will not, directly or indirectly, solicit, initiate or encourage submission of proposals of offers from any\nthird party relating to any acquisition, purchase or option to purchase an equity interest in Zulu, or any merger,\nconsolidation or business combination with Zulu or the sale of substantially all of the assets of Zulu. In the\nevent Zulu receives any solicitation, proposal or offer with regard to the foregoing, Zulu shall provide written\nnotice to Swansi within two business days of its receipt by Zulu or its principals.\nARTICLE 3\nNON-CIRCUMVENTION\nSuppliers and Customers\n3.1\nThe parties hereto agree that they shall not solicit business from any supplier, customer, client or\ncontact of any other party hereto for the purpose of circumventing the relationship between such party and such\nsupplier, customer, client and/or competing with such party during the Term of this Agreement without prior\nwritten consent.\nMaterial Inducement\n3.2\nEach party hereto acknowledges and agrees that the other parties hereto have a material interest in\npreserving the relationships they have developed with their customers and employees against impairment by\ncompetitive activities of other persons and entities. Accordingly, each party agrees that the restrictions and\ncovenants contained in this Agreement are of the essence of this Agreement and constitute a material\ninducement by the each party to the other to disclose the Confidential Information.\nARTICLE 4\nINJUNCTION\nThe parties hereto agree that money damages would not be a sufficient remedy for any breach of this\nAgreement and that in addition to other remedies, each offended party shall be entitled to specific performance\nand injunctive or other equitable relief, and in such circumstances the offending party agrees to waive posting\nof a bond to secure any such equitable relief hereunder.\nARTICLE 5\nDEFINITIVE AGREEMENTS; DISCLOSURE\nThe parties hereto will use their best efforts to enter into a definitive acquisition agreement and any\nother documents that may be necessary in order to consummate the Acquisition by October 31, 2007. If a\ndefinitive agreement has not been entered into by such date, then this Agreement will have no further force or\neffect except for Articles 1, 3, 4, 5 and 6 hereof.\nARTICLE 6\nMISCELLANEOUS\nSuccessors and Assigns; Waiver; Governing Law\n6.1\nThis Agreement shall be binding upon the parties hereto and their respective successors and assigns and\nshall inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of\nthis Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be\naffected. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any other right, power or privilege hereunder. This Agreement shall be governed by, construed and\nenforced under the laws of the State of Colorado.\nNotices\n6.2\nAny notice or communication required or permitted hereunder must be in writing and sent by (a)\npersonal delivery, (b) expedited delivery service with proof of delivery, or (c) registered or certified mail,\npostage prepaid, to the addresses stated above or to such other address or to the attention of such other person\nas the applicable party hereafter designates by written notice sent in accordance herewith. Any such notice or\ncommunication will be deemed to have been given either at the time of personal delivery or, in the case of\ndelivery service or mail, as of the date of first attempted delivery at the address and in the manner provided\nherein.\nCounterparts\n6.3\nThis Agreement may be executed in one or more counterparts, each of which shall be deemed an\noriginal, but all of which together shall constitute one and the same instrument. This Agreement may be\nexecuted and delivered by facsimile transmission.\nIN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by\nthemselves or their duly authorized officers, as appropriate, as of the date first written above.\nSWANSI HOLDINGS CORP.\ns/s: Gareth Corbin\nGareth Corbin, Director\nZULU ENERGY CORP.\ns/s Paul Stroud\nPaul Stroud, President	Exhibit 99.3/A\nCONFIDENTIALITY/STANDSTILL AG REEMENT\nTHIS AGREEMENT is dated as of the 26th day of September, 2007\nAMONG:\nSWANSI HOLDING S CORP., a Panama corporation and having an office for business located at Nerine\nFiduciaire S.A., Rue des Terreaux-du—Temple 4, Case postale 5023, CH - 1211 Geneva 11, Switzerland\n(”Swansi”);\nAND:\nZULU ENERGY CORP., a Colorado corporation having an office for business located at 2610— 1066 West\nHastings Street, Vancouver, BC V 6E 3X 2 (”Zulu”)\nWHEREAS Swansi and Zulu are willing to enter into discussions regarding a possible acquisition by Zulu of\nshares of Nyati Resources Botswana (PTY) Limited, a Botswana corporation (”Nyati Botswana”) from Swansi\n(the ”A cquisition").\nNOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the\nexchange of Confidential Information (as defined herein) between Swansi and Zulu as may be reasonably\nrequested from time to time and other good and valuable consideration, the receipt and sufficiency of which is\nhereby acknowledged, the parties hereto hereby agree as follows:\nARTICLE 1\nCONFIDENTIALITY\nC onfidential Information\n1.1\nFor purposes of this Agreement, the term confidential information (”Confidential Information”) shall\nmean all financial and other nonpublic information, together with notes, analyses, compilations, studies or\nother documents prepared or provided by the disclosing party in connection with the evaluation of the\nAcquisition. Confidential Information shall also include proprietary information concerning the respective\nbusinesses, operations and assets of the parties, including, without limitation, trade secrets, techniques, models,\ndata, documentation, code, research, development, processes, procedures, business strategy, marketing\ntimetables, pricing policies, financial information and other information of a similar nature, whether or not\nreduced to writing or other tangible form. Confidential Information shall not include (a) infonnaiion known to\na receiving party (the ”Receiving Party") or Representatives prior to obtaining the same from the disclosing\nparty (the ”Disclosing Party"); (b) information in the public domain at the time of disclosure by Disclosing\nParty; or (c) information approved for release by written authorization of an authorized officer of the\nDisclosing Party.\nRepresentatives\n1.2\nFor purposes of this Agreement, the term representatives (”Representatives”) shall mean each party,\ntheir directors, officers and employees, as well as their counsel, accountants, consultants and other\nrepresentatives in connection with the transactions contemplated hereby provided that such persons are bound\nby confidentiality agreements no less stringent than those in this Agreement.\nUse of C onfidential Information\n1.3\nEach party will use the Confidential Information it receives solely for the purpose of evaluating the\nAcquisition and not for any other purpose and, except to the extent permitted by paragraph 1.5 hereof, will\nkeep such Confidential Information strictly confidential, provided, however, that Confidential Information may\nbe disclosed to such Representatives as needed to know such information for the purpose of evaluating and\nnegotiating the terms of the Acquisition and for no other purpose.\nNon-Disclosure\n1.4\nExcept to the extent permitted by paragraph 1.5 hereof, for a period of twelve (12) months following\nthe conclusion of any discussions or negotiations relating to the Acquisition, the parties hereto will direct their\nrespective Representatives to not disclose to any person or entity that the Confidential Information has been\nmade available, that discussions or negotiations are taking place or have recently taken place concerning the\nAcquisition, or any of the terms, conditions or other facts with respect to any other possible transaction\nbetween the parties hereto.\nProperty Rights Maintained\n1.5\nConfidential Information disclosed shall be and shall remain the property of the Disclosing Party. In the\nevent that the parties hereto do not proceed with the Acquisition by October 31, 2007, and, in any event, within\nfive (5) days after being so requested by either party, both parties shall return or destroy all documents\nfurnished by the other. Any oral Confidential Information shall remain subject to the confidentiality obligations\nset forth in this Agreement.\nARTICLE 2\nSTANDSTILL\nZulu and its principal shareholders agree that until October 31, 2007, or such shorter period if either\nparty notifies the other that it no longer wishes to proceed with the Acquisition (”Term of this Agreement”),\nthat they will not, directly or indirectly, solicit, initiate or encourage submission of proposals of offers from any\nthird party relating to any acquisition, purchase or option to purchase an equity interest in Zulu, or any merger,\nconsolidation or business combination with Zulu or the sale of substantially all of the assets of Zulu. In the\nevent Zulu receives any solicitation, proposal or offer with regard to the foregoing, Zulu shall provide written\nnotice to Swansi within two business days of its receipt by Zulu or its principals.\nARTICLE 3\nNON-CIRCUMVENTION\nSuppliers and Customers\n3.1\nThe parties hereto agree that they shall not solicit business from any supplier, customer, client or\ncontact of any other party hereto for the purpose of circumventing the relationship between such party and such\nsupplier, customer, client and/or competing with such party during the Term of this Agreement without prior\nwritten consent.\nMaterial Inducement\n3.2\nEach party hereto acknowledges and agrees that the other parties hereto have a material interest in\npreserving the relationships they have developed with their customers and employees against impairment by\ncompetitive activities of other persons and entities. Accordingly, each party agrees that the restrictions and\ncovenants contained in this Agreement are of the essence of this Agreement and constitute a material\ninducement by the each party to the other to disclose the Confidential Information.\nARTICLE 4\nINJUNCTION\nThe parties hereto agree that money damages would not be a sufficient remedy for any breach of this\nAgreement and that in addition to other remedies, each offended party shall be entitled to specific performance\nand injunctive or other equitable relief, and in such circumstances the offending party agrees to waive posting\nof a bond to secure any such equitable relief hereunder.\nARTICLE 5\nDEFINITIVE AGREEMENTS; DISCLOSURE\nThe parties hereto will use their best efforts to enter into a definitive acquisition agreement and any\nother documents that may be necessary in order to consummate the A cquisition by October 31, 2007. If a\ndefinitive agreement has not been entered into by such date, then this Agreement will have no further force or\neffect except forArticles 1, 3, 4, 5 and 6 hereof.\nARTICLE 6\nMISCELLANEOUS\nSuccessors and A ssigns; W aiver; G overning L aw\n6.1\nThis Agreement shall be binding upon the parties hereto and their respective successors and assigns and\nshall inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of\nthis Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be\naffected. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any other right, power or privilege hereunder. This Agreement shall be governed by, construed and\nenforced under the laws of the State of Colorado.\nNotices\n6.2\nAny notice or communication required or permitted hereunder must be in writing and sent by (a)\npersonal delivery, (b) expedited delivery service with proof of delivery, or (c) registered or certified mail,\npostage prepaid, to the addresses stated above or to such other address or to the attention of such other person\nas the applicable party hereafter designates by written notice sent in accordance herewith. Any such notice or\ncommunication will be deemed to have been given either at the time of personal delivery or, in the case of\ndelivery service or mail, as of the date of first attempted delivery at the address and in the manner provided\nherein.\nC ounterparts\n6.3\nThis Agreement may be executed in one or more counterparts, each of which shall be deemed an\noriginal, but all of which together shall constitute one and the same instrument. This Agreement may be\nexecuted and delivered by facsimile transmission.\nIN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by\nthemselves or their duly authorized officers, as appropriate, as of the date first written above.\nSWANSI HOL DING S C ORP.\ns/s: Gareth Corbin\nG areth Corbin, Director\nZULU ENERGY CORP.\ns/s Paul Stroud\nPaul Stroud, President	Exhibit 99.3/A\nCONFIDENTIALITY /STANDSTILL AGREEMENT\nTHIS AGREEMENT is dated as of the 26th day of September, 2007\nAMONG:\nSWANSI HOLDINGS CORP., a Panama corporation and having an office for business located at Nerine\nFiduciaire S.A., Rue des Terreaux-du-Temple 4, Case postale 5023, CH - 1211 Geneva 11, Switzerland\n("Swansi");\nAND:\nZULU ENERGY CORP., a Colorado corporation having an office for business located at 2610- 1066 West\nHastings Street, Vancouver, BC V6E 3X ("Zulu")\nWHEREAS Swansi and Zulu are willing to enter into discussions regarding a possible acquisition by Zulu of\nshares of Nyati Resources Botswana (PTY) Limited, a Botswana corporation ("Nyati Botswana") from Swansi\n(the Acquisition").\nNOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the\nexchange of Confidential Information (as defined herein) between Swansi and Zulu as may be reasonably\nrequested from time to time and other good and valuable consideration the receipt and sufficiency of which is\nhereby acknowledged, the parties hereto hereby agree as follows:\nARTICLE 1\nCONFIDENTIALITY\nConfidential Information\n1.1\nFor purposes of this A greement the term confidential information ("Confidential Information") shall\nmean all financial and other nonpublic information, together with notes, analyses, compilations, studies or\nother documents prepared or provided by the disclosing party in connection with the evaluation of the\nA\ncquisition. Confidential Information shall also include proprietary information concerning the respective\nbusinesses, operations and assets of the parties, including, without limitation trade secrets, techniques, models,\ndata, documentation, code, research, development, processes, procedures, business strategy, marketing\ntimetables, pricing policies, financial information and other information of a similar nature, whether or not\nreduced to writing or other tangible form. Confidential Information shall not include (a) information known to\na\nreceiving\nparty\n(the\n"Receiving\nParty")\nor\nRepresentatives\nprior\nto\nobtaining\nthe\nsame\nfrom\nthe\ndisclosing\nparty (the "Disclosing Party"); (b) information in the public domain at the time of disclosure by Disclosing\nParty; or (c) information approved for release by written authorization of an authorized officer of the\nDisclosing Party.\nRepresentatives\n1.2\nFor purposes of this A greement the term representatives ("Representatives") shall mean each party,\ntheir directors, officers and employees, as well as their counsel, accountants, consultants and other\nrepresentatives in connection with the transactions contemplated hereby provided that such persons are bound\nby confidentiality agreements no less stringent than those in this A greement\nUse of Confidential Information\n1.3\nEach party will use the Confidential Information it receives solely for the purpose of evaluating the\nA cquisition and not for any other purpose and, except to the extent permitted by paragraph 1.5 hereof, will\nkeep such Confidential Information strictly confidential, provided, however, that Confidential Information may\nbe disclosed to such Representatives as needed to know such information for the purpose of evaluating and\nnegotiating the terms of the A cquisition and for no other purpose.\nNon-Disclosure\n1.4\nExcept to the extent permitted by paragraph 1.5 hereof, for a period of twelve (12) months following\nthe conclusion of any discussions or negotiations relating to the A cquisition, the parties hereto will direct their\nrespective Representatives to not disclose to any person or entity that the Confidential Information has been\nmade available, that discussions or negotiations are taking place or have recently taken place concerning the\nA cquisition, or any of the terms, conditions or other facts with respect to any other possible transaction\nbetween the parties hereto.\nProperty Rights Maintained\n1.5\nConfidential Information disclosed shall be and shall remain the property of the Disclosing Party. In the\nevent that the parties hereto do not proceed with the A cquisition by October 31, 2007, and, in any event, within\nfive (5) days after being so requested by either party both parties shall return or destroy all documents\nfurnished by the other. ny oral Confidential Information shall remain subject to the confidentiality obligations\nset forth in this A greement.\nARTICLE 2\nSTANDSTILL\nZulu and its principal shareholders agree that until October 31, 2007, or such shorter period if either\nparty notifies the other that it no longer wishes to proceed with the A cquisition ("Term of this A greement"),\nthat they will not, directly or indirectly, solicit, initiate or encourage submission of proposals of offers from any\nthird party relating to any acquisition, purchase or option to purchase an equity interest in Zulu, or any merger,\nconsolidation or business combination with Zulu or the sale of substantially all of the assets of Zulu. In the\nevent Zulu receives any solicitation, proposal or offer with regard to the foregoing, Zulu shall provide written\nnotice to Swansi within two business days of its receipt by Zulu or its principals.\nARTICLE 3\nNON-CIRCUMVENTION\nSuppliers and Customers\n3.1\nThe parties hereto agree that they shall not solicit business from any supplier, customer, client or\ncontact of any other party hereto for the purpose of circumventing the relationship between such party and such\nsupplier, customer, client and/or competing with such party during the Term of this A greement without prior\nwritten consent.\nMaterial Inducement\n3.2\nEach party hereto acknowledges and agrees that the other parties hereto have a material interest in\npreserving the relationships they have developed with their customers and employees against impairment by\ncompetitive activities of other persons and entities. A ccordingly, each party agrees that the restrictions\nand\ncovenants contained in this A greement are of the essence of this A greement and constitute a material\ninducement by the each party to the other to disclose the Confidential Information.\nARTICLE 4\nINJUNCTION\nThe parties hereto agree that money damages would not be a sufficient remedy for any breach of this\nA greement and that in addition to other remedies, each offended party shall be entitled to specific performance\nand injunctive or other equitable relief, and in such circumstances the offending party agrees to waive posting\nof a bond to secure any such equitable relief hereunder.\nARTICLE 5\nDEFINITIVE AGREEMENTS; DISCLOSURE\nThe parties hereto will use their best efforts to enter into a definitive acquisition agreement and any\nother documents that may be necessary in order to consummate the A cquisition by October 31, 2007. If a\ndefinitive agreement has not been entered into by such date, then this A greement will have no further force or\neffect except for A rticles 1, 3, 4, 5 and 6 hereof.\nARTICLE 6\nMISCELLANEOUS\nSuccessors and Assigns; Waiver; G overning Law\n6.1\nThis A greement shall be binding upon the parties hereto and their respective successors and assigns and\nshall inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of\nthis A greement is not enforceable in whole or in part, the remaining provisions of this A greement shall not be\naffected. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any other right, power or privilege hereunder. This A greement shall be governed by, construed and\nenforced under the laws of the State of Colorado.\nNotices\n6.2\nAny notice or communication required or permitted hereunder must be in writing and sent by (a)\npersonal delivery, (b) expedited delivery service with proof of delivery, or (c) registered or certified mail,\npostage prepaid, to the addresses stated above or to such other address or to the attention of such other person\nas the applicable party hereafter designates by written notice sent in accordance herewith. Any such notice or\ncommunication will be deemed to have been given either at the time of personal delivery or, in the case of\ndelivery service or mail, as of the date of first attempted delivery at the address and in the manner provided\nherein.\nCounterparts\n6.3\nThis A greement may be executed in one or more counterparts, each of which shall be deemed an\noriginal, but all of which together shall constitute one and the same instrument. This A greement may be\nexecuted and delivered by facsimile transmission.\nIN WITNESS WHEREOF the parties hereto have each caused this A greement to be executed by\nthemselves or their duly authorized officers, as appropriate, as of the date first written above.\nSWANSI HOLDINGS CORP.\ns/s: Gareth Corbin\nGareth Corbin, Director\nZULU ENERGY CORP.\ns/s Paul Stroud\nPaul Stroud, President	Exhibit 99.3/A\nCONFIDENTIALITY/STANDSTILL AGREEMENT\nTHIS AGREEMENT is dated as of the 26th day of September, 2007\nAMONG:\nSWANSI HOLDINGS CORP., a Panama corporation and having an office for business located at Nerine\nFiduciaire S.A., Rue des Terreaux-du-Temple 4, Case postale 5023, CH - 1211 Geneva 11, Switzerland\n(“Swansi”);\nAND:\nZULU ENERGY CORP., a Colorado corporation having an office for business located at 2610– 1066 West\nHastings Street, Vancouver, BC V6E 3X2 (“Zulu”)\nWHEREAS Swansi and Zulu are willing to enter into discussions regarding a possible acquisition by Zulu of\nshares of Nyati Resources Botswana (PTY) Limited, a Botswana corporation (“Nyati Botswana”) from Swansi\n(the “Acquisition”).\nNOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the\nexchange of Confidential Information (as defined herein) between Swansi and Zulu as may be reasonably\nrequested from time to time and other good and valuable consideration, the receipt and sufficiency of which is\nhereby acknowledged, the parties hereto hereby agree as follows:\nARTICLE 1\nCONFIDENTIALITY\nConfidential Information\n1.1\nFor purposes of this Agreement, the term confidential information (“Confidential Information”) shall\nmean all financial and other nonpublic information, together with notes, analyses, compilations, studies or\nother documents prepared or provided by the disclosing party in connection with the evaluation of the\nAcquisition. Confidential Information shall also include proprietary information concerning the respective\nbusinesses, operations and assets of the parties, including, without limitation, trade secrets, techniques, models,\ndata, documentation, code, research, development, processes, procedures, business strategy, marketing\ntimetables, pricing policies, financial information and other information of a similar nature, whether or not\nreduced to writing or other tangible form. Confidential Information shall not include (a) information known to\na receiving party (the “Receiving Party”) or Representatives prior to obtaining the same from the disclosing\nparty (the “Disclosing Party”); (b) information in the public domain at the time of disclosure by Disclosing\nParty; or (c) information approved for release by written authorization of an authorized officer of the\nDisclosing Party.\nRepresentatives\n1.2\nFor purposes of this Agreement, the term representatives (“Representatives”) shall mean each party,\ntheir directors, officers and employees, as well as their counsel, accountants, consultants and other\nrepresentatives in connection with the transactions contemplated hereby provided that such persons are bound\nby confidentiality agreements no less stringent than those in this Agreement.\nUse of Confidential Information\n1.3\nEach party will use the Confidential Information it receives solely for the purpose of evaluating the\nAcquisition and not for any other purpose and, except to the extent permitted by paragraph 1.5 hereof, will\nkeep such Confidential Information strictly confidential, provided, however, that Confidential Information may\nbe disclosed to such Representatives as needed to know such information for the purpose of evaluating and\nnegotiating the terms of the Acquisition and for no other purpose.\nNon-Disclosure\n1.4\nExcept to the extent permitted by paragraph 1.5 hereof, for a period of twelve (12) months following\nthe conclusion of any discussions or negotiations relating to the Acquisition, the parties hereto will direct their\nrespective Representatives to not disclose to any person or entity that the Confidential Information has been\nmade available, that discussions or negotiations are taking place or have recently taken place concerning the\nAcquisition, or any of the terms, conditions or other facts with respect to any other possible transaction\nbetween the parties hereto.\nProperty Rights Maintained\n1.5\nConfidential Information disclosed shall be and shall remain the property of the Disclosing Party. In the\nevent that the parties hereto do not proceed with the Acquisition by October 31, 2007, and, in any event, within\nfive (5) days after being so requested by either party, both parties shall return or destroy all documents\nfurnished by the other. Any oral Confidential Information shall remain subject to the confidentiality obligations\nset forth in this Agreement.\nARTICLE 2\nSTANDSTILL\nZulu and its principal shareholders agree that until October 31, 2007, or such shorter period if either\nparty notifies the other that it no longer wishes to proceed with the Acquisition (“Term of this Agreement”),\nthat they will not, directly or indirectly, solicit, initiate or encourage submission of proposals of offers from any\nthird party relating to any acquisition, purchase or option to purchase an equity interest in Zulu, or any merger,\nconsolidation or business combination with Zulu or the sale of substantially all of the assets of Zulu. In the\nevent Zulu receives any solicitation, proposal or offer with regard to the foregoing, Zulu shall provide written\nnotice to Swansi within two business days of its receipt by Zulu or its principals.\nARTICLE 3\nNON-CIRCUMVENTION\nSuppliers and Customers\n3.1\nThe parties hereto agree that they shall not solicit business from any supplier, customer, client or\ncontact of any other party hereto for the purpose of circumventing the relationship between such party and such\nsupplier, customer, client and/or competing with such party during the Term of this Agreement without prior\nwritten consent.\nMaterial Inducement\n3.2\nEach party hereto acknowledges and agrees that the other parties hereto have a material interest in\npreserving the relationships they have developed with their customers and employees against impairment by\ncompetitive activities of other persons and entities. Accordingly, each party agrees that the restrictions and\ncovenants contained in this Agreement are of the essence of this Agreement and constitute a material\ninducement by the each party to the other to disclose the Confidential Information.\nARTICLE 4\nINJUNCTION\nThe parties hereto agree that money damages would not be a sufficient remedy for any breach of this\nAgreement and that in addition to other remedies, each offended party shall be entitled to specific performance\nand injunctive or other equitable relief, and in such circumstances the offending party agrees to waive posting\nof a bond to secure any such equitable relief hereunder.\nARTICLE 5\nDEFINITIVE AGREEMENTS; DISCLOSURE\nThe parties hereto will use their best efforts to enter into a definitive acquisition agreement and any\nother documents that may be necessary in order to consummate the Acquisition by October 31, 2007. If a\ndefinitive agreement has not been entered into by such date, then this Agreement will have no further force or\neffect except for Articles 1, 3, 4, 5 and 6 hereof.\nARTICLE 6\nMISCELLANEOUS\nSuccessors and Assigns; Waiver; Governing Law\n6.1\nThis Agreement shall be binding upon the parties hereto and their respective successors and assigns and\nshall inure to the benefit of the parties hereto and their respective successors and assigns. If any provision of\nthis Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be\naffected. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any other right, power or privilege hereunder. This Agreement shall be governed by, construed and\nenforced under the laws of the State of Colorado.\nNotices\n6.2\nAny notice or communication required or permitted hereunder must be in writing and sent by (a)\npersonal delivery, (b) expedited delivery service with proof of delivery, or (c) registered or certified mail,\npostage prepaid, to the addresses stated above or to such other address or to the attention of such other person\nas the applicable party hereafter designates by written notice sent in accordance herewith. Any such notice or\ncommunication will be deemed to have been given either at the time of personal delivery or, in the case of\ndelivery service or mail, as of the date of first attempted delivery at the address and in the manner provided\nherein.\nCounterparts\n6.3\nThis Agreement may be executed in one or more counterparts, each of which shall be deemed an\noriginal, but all of which together shall constitute one and the same instrument. This Agreement may be\nexecuted and delivered by facsimile transmission.\nIN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by\nthemselves or their duly authorized officers, as appropriate, as of the date first written above.\nSWANSI HOLDINGS CORP.\ns/s: Gareth Corbin\nGareth Corbin, Director\nZULU ENERGY CORP.\ns/s Paul Stroud\nPaul Stroud, President
+715d09e3a02ad00be0de56f780e047a0.pdf	effective_date jurisdiction party	EXHIBIT 10.2\nEMPLOYEE CONFIDENTIALITY AGREEMENT\nThis Agreement is entered into as of May 24, 2017 by and between Nexeon MedSystems Inc (“Company”), a\nNevada corporation with its principal address at 1708 Jaggie Fox Way, Lexington, KY 40511 and Daniel Powell\n(“Employee”). Company and Employee are referred to collectively as “Parties and individually as a “Party”.\nWHEREAS, the Company wishes to hire Employee.\nThe Employee agrees as follows:\n1. Confidentiality.\n(a)\nThe Employee acknowledges that, by reason of the Employee’s employment by Company, Employee will have\naccess to confidential information of the Company (“Confidential Information”). The Employee acknowledges that such\nConfidential Information is a valuable and unique asset of the Company and covenants that, both during the term of\nEmployee’s employment with the Company (“Term’) and after the Term, the Employee will not disclose any Confidential\nInformation to any person or entity (except as the Employee’s duties as an employee or director of the Company may\nrequire) without the prior written authorization of the Company. The obligation of confidentiality imposed by this Section 1\nshall not apply to Confidential Information that otherwise becomes known to the public through no act of the Employee in\nbreach of this Agreement or which is required to be disclosed by court order or applicable law. The provisions of this\nSection 1 shall remain in full force and effect for a period of three (3) years after expiration of the Term.\n(b)\nConfidential Information includes all records, designs, business plans, financial statements, customer lists,\nmanuals, memoranda, research and development plans, chemical materials, compounds, technology platforms, source\ncodes, technical data, opportunities, targets, products, electronic devices, projects, protocols, programming techniques,\nexperimental work, pricing, customers, clients, finances, Intellectual Property and other property delivered to or compiled\nby the Employee by or on behalf of the Company or its providers, clients or customers that pertain to the business of the\nCompany shall be and remain the property of the Company and be subject at all times to its discretion and control.\nLikewise, all correspondence, reports, records, charts, advertising materials and other similar data pertaining to the\nbusiness, activities, research and development, Intellectual Property or future plans of the Company that is collected by\nthe Employee shall be delivered promptly to the Company without request by it upon termination of the Employee’s\nemployment. For purposes of this Section 1(b), “Intellectual Property” shall mean patents, copyrights, trademarks, trade\ndress, trade secrets, other such rights, and any applications. The phrase, “Confidential Information” does not include\ninformation that (i) was lawfully in Employee’s possession prior to disclosure of such information by the Company; (ii)\nwas, or at any time becomes, available in the public domain other than through a violation of this Agreement; (iii) is\ndocumented by Employee as having been developed by Employee outside the scope of Employee rendering services\nhereunder and independently; or (iv) is furnished to Employee by a third party not under an obligation of confidentiality to\nthe Company.\n1\n(c)\nEmployee will be allowed to disclose such information of the Company to the extent that such disclosure is: (i)\nduly approved in writing by the Company; (ii) necessary for Employee to enforce Employee’s rights under this Agreement\nin connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative\nbody.\n2. Inventions. The Employee is hereby retained in a capacity such that the Employee’s responsibilities may include\nthe making of technical and/or managerial contributions of value to the Company. The Employee hereby assigns to the\nCompany all rights, title and interest in such contributions and inventions made or conceived by the Employee alone or\njointly with others during the Term. This assignment shall include (a) the right to file and prosecute patent applications on\nsuch inventions in any and all countries, (b) the patent applications filed and patents issuing thereon, and (c) the right to\nobtain copyright, trademark or trade name protection for any such work product. The Employee shall promptly and fully\ndisclose all such contributions and inventions to the Company and assist the Company in obtaining and protecting the\nrights therein (including patents thereon), in any and all countries; provided, however, that said contributions and\ninventions will be the property of the Company, whether or not patented or registered for copyright, trademark or trade\nname protection, as the case may be. Inventions conceived by the Employee, which are not related to the business of the\nCompany, will remain the property of the Employee, and notwithstanding the foregoing, the Company shall not have any\nright, title or interest in any work product or copyrightable work developed outside of work hours and without the use of\nCompany resources that does not relate to the Company’s business and does not result from any work performed by the\nEmployee for the Company.\n3. Additional Representations of Employee. Employee represents and warrants to the Company that Employee is\nnot Party to any written or oral agreement with any third Party that would restrict Employee’s ability to enter into this\nEmployee Confidentiality Agreement or to perform Employee’s obligations hereunder and that Employee will not, by\njoining the Company, breach any non-disclosure, proprietary rights, non-competition, non-solicitation or other covenant in\nfavor of any third party.\n4. Non-Solicitation of Employees. Employee agrees that for a period of one (1) year after the Term, Employee shall\nnot recruit, attempt to recruit or directly or indirectly participate in the recruitment of, any Company employee; provided,\nhowever, any general public recruitment responded to by Company employees will not breach this provision.\n5. Non-Solicitation of Customers or Prospects. Employee agrees that during the Term and for a period of one (1)\nyear thereafter, Employee will not, either directly or indirectly solicit, separately or in association with others, attempt to\nsolicit, canvass or interfere with any current customer, or supplier of the Company with whom Employee had a\nrelationship while working for the Company in a manner that directly competes with the Company.\n6. General.\n6.1 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Employee\nand the Employee’s heirs, executors, administrators, estate, beneficiaries, and legal representatives. Neither Party may\nassign this Agreement without the written consent of the other Party. The rights and obligations of the Company under\nthis Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of the Company.\n2\n6.2 Waiver. Either Party’s failure to enforce any provision of this Agreement shall not in any way be construed\nas a waiver of any such provision, or prevent that Party thereafter from enforcing each and every other provision of this\nAgreement.\n6.3 Attorneys’ Fees. Each side will bear its own attorneys’ fees in any dispute unless a statutory section at\nissue, if any, authorizes the award of attorneys’ fees to the prevailing Party.\n6.4\nGoverning Law; Venue and Jurisdiction. This Agreement will be governed by and construed in\naccordance with the laws of the United States and the State of Nevada. Venue for litigation of any dispute hereunder\nshall lie in the courts of Clark County, Nevada. The Parties submit to personal jurisdiction in the State of Nevada.\n6.5 Counterparts. The Parties agree that this Agreement may be executed in identical counterparts. The\nAgreement will be binding and enforceable on all Parties even though signed in counterparts.\n7.\nEntire Agreement. This Agreement constitutes the entire understanding between Employee and the Company\nrelating to Employee Confidentiality matters. This Agreement supersedes and replaces any prior verbal or written\nagreements between the Company and Employee. This Agreement may not be modified or amended except by a written\nagreement signed by both Employee and a person authorized by the Board of the Company. No oral waiver, amendment\nor modification will be effective under any circumstances whatsoever.\nTHE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND\nEACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES HAVE EXECUTED THIS\nAGREEMENT ON THE DATES SHOWN BELOW.\nNexeon MedSystems Inc.\nEmployee\nBy:/s/ Christopher Miller\nBy:/s/ Daniel Powell\nName: Christopher Miller\nName: Daniel Powell, Individually\nIts: Chief Financial Officer\n3	EXHIBIT 10.2\nEMPLOYEE CONFIDENTIALITY AGREEMENT\nThis Agreement is entered into as of May 24, 2017 by and between Nexeon MedSystems Inc (“Company”), a\nNevada corporation with its principal address at 1708 Jaggie Fox Way, Lexington, KY 40511 and Daniel Powell\n(“Employee”). Company and Employee are referred to collectively as “Parties and individually as a “P arty”.\nWHEREAS, the Company wishes to hire Employee.\nThe Employee agrees as follows:\n1. Confidentiality.\n(a) The Employee acknowledges that, by reason of the Employee's employment by Company, Employee will have\naccess to confidential information of the Company (“Confidential Information”). The Employee acknowledges that such\nConfidential Information is a valuable and unique asset of the Company and covenants that, both during the term of\nEmployee's employment with the Company (’Term') and after the Term, the Employee will not disclose any Confidential\nInformation to any person or entity (except as the Employee's duties as an employee or director of the Company may\nrequire) without the prior written authorization of the Company. The obligation of confidentiality imposed by this Section 1\nshall not apply to Confidential Information that otherwise becomes known to the public through no act of the Employee in\nbreach of this Agreement or which is required to be disclosed by court order or applicable law. The provisions of this\nSection 1 shall remain in full force and effect for a period of three (3) years after expiration of the Term.\n(b) Confidential Information includes all records, designs, business plans, financial statements, customer lists,\nmanuals, memoranda, research and development plans, chemical materials, compounds, technology platforms, source\ncodes, technical data, opportunities, targets, products, electronic devices, projects, protocols, programming techniques,\nexperimental work, pricing, customers, clients, finances, Intellectual Property and other property delivered to or compiled\nby the Employee by or on behalf of the Company or its providers, clients or customers that pertain to the business of the\nCompany shall be and remain the property of the Company and be subject at all times to its discretion and control.\nLikewise, all correspondence, reports, records, charts, advertising materials and other similar data pertaining to the\nbusiness, activities, research and development, Intellectual Property or future plans of the Company that is collected by\nthe Employee shall be delivered promptly to the Company without request by it upon termination of the Employee's\nemployment. For purposes of this Section 1(b), “Intellectual Proper_ty” shall mean patents, copyrights, trademarks, trade\ndress, trade secrets, other such rights, and any applications. The phrase, “Confidential Information” does not include\ninformation that (i) was lawfully in Employee's possession prior to disclosure of such information by the Company; (ii)\nwas, or at any time becomes, available in the public domain other than through a violation of this Agreement; (iii) is\ndocumented by Employee as having been developed by Employee outside the scope of Employee rendering services\nhereunder and independently; or (iv) is furnished to Employee by a third party not under an obligation of confidentiality to\nthe Company.\n(c) Employee will be allowed to disclose such information of the Company to the extent that such disclosure is: (i)\nduly approved in writing by the Company; (ii) necessary for Employee to enforce Employee's rights under this Agreement\nin connection with a legal proceeding; or (iii) required by law or by the order of a court or similarjudicial or administrative\nbody.\n2. Inventions. The Employee is hereby retained in a capacity such that the Employee's responsibilities may include\nthe making of technical and/or managerial contributions of value to the Company. The Employee hereby assigns to the\nCompany all rights, title and interest in such contributions and inventions made or conceived by the Employee alone or\njointly with others during the Term. This assignment shall include (a) the right to file and prosecute patent applications on\nsuch inventions in any and all countries, (b) the patent applications filed and patents issuing thereon, and (c) the right to\nobtain copyright, trademark or trade name protection for any such work product. The Employee shall promptly and fully\ndisclose all such contributions and inventions to the Company and assist the Company in obtaining and protecting the\nrights therein (including patents thereon), in any and all countries; provided, however, that said contributions and\ninventions will be the property of the Company, whether or not patented or registered for copyright, trademark or trade\nname protection, as the case may be. Inventions conceived by the Employee, which are not related to the business of the\nCompany, will remain the property of the Employee, and notwithstanding the foregoing, the Company shall not have any\nright, title or interest in any work product or copyrightable work developed outside of work hours and without the use of\nCompany resources that does not relate to the Company's business and does not result from any work performed by the\nE mployee for the Company.\n3. Additional Representations of Employee. Employee represents and warrants to the Company that Employee is\nnot Party to any written or oral agreement with any third Party that would restrict Employee's ability to enter into this\nEmployee Confidentiality Agreement or to perform Employee's obligations hereunder and that Employee will not, by\njoining the Company, breach any non-disclosure, proprietary rights, non-competition, non-solicitation or other covenant in\nfavor of any third party.\n4. Non-Solicitation of Employees. Employee agrees that for a period of one (1) year after the Term, Employee shall\nnot recruit, attempt to recruit or directly or indirectly participate in the recruitment of, any Company employee; provided,\nhowever, any general public recruitment responded to by Company employees will not breach this provision.\n5. Non-Solicitation of Customers or Prospects. Employee agrees that during the Term and for a period of one (1)\nyear thereafter, Employee will not, either directly or indirectly solicit, separately or in association with others, attempt to\nsolicit, canvass or interfere with any current customer, or supplier of the Company with whom Employee had a\nrelationship while working forthe Company in a mannerthat directly competes with the Company.\n6. General.\n6.1 Successors and Assigns. This Agreementshall be binding upon and inure to the benefit of the Employee\nand the Employee's heirs, executors, administrators, estate, beneficiaries, and legal representatives. Neither Party may\nassign this Agreement without the written consent of the other Party. The rights and obligations of the Company under\nthis Agreement shall inure to the benefit ofand shall be binding upon the successors and assigns of the Company.\n6.2 Waiver. Either Party's failure to enforce any provision of this Agreement shall not in any way be construed\nas a waiver of any such provision, or prevent that Party thereafter from enforcing each and every other provision of this\nAgreement.\n6.3 Attorneys' Fees. Each side will bear its own attorneys' fees in any dispute unless a statutory section at\nissue, if any, authorizes the award of attorneys' fees to the prevailing Party.\n6.4 Governing LaW'I Venue and |urisdiction. This Agreement will be governed by and construed in\naccordance with the laws of the United States and the State of Nevada. Venue for litigation of any dispute hereunder\nshall lie in the courts ofClark County, Nevada. The Parties submit to personaljurisdiction in the State of Nevada.\n6.5 Counterparts. The Parties agree that this Agreement may be executed in identical counterparts. The\nAgreement will be binding and enforceable on all Parties even though signed in counterparts.\n7. Entire Agreement. This Agreement constitutes the entire understanding between Employee and the Company\nrelating to Employee Confidentiality matters. This Agreement supersedes and replaces any prior verbal or written\nagreements between the Company and Employee. This Agreement may not be modified or amended except by a written\nagreement signed by both Employee and a person authorized by the Board ofthe Company. No oral waiver, amendment\nor modification will be effective under any circumstances whatsoever.\nTHE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND\nEACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES HAVE EXECUTED THIS\nAGREEMENT ON THE DATES SHOWN BELOW.\nNexeon MedSystems lnc. Employee\n3/351 Christopher Miller 313%! Daniel Powell\name: rrs op er rer ame: anre owe , n rvr ua y\nIts: C hief Financial Officer	EXHIBIT 10.2\nEMPLOYEE CONFIDENTIALITY AGREEMENT\nThis Agreement is entered into as of May 24, 2017 by and between Nexeon Meds ystems Inc ("Company"), a\nNevada corporation with its principal address at 1708 J aggie Fox Way, Lexington, KY 40511 and Daniel Powell\n("Employee"). Company and Employee are referred to collectively as "Parties and individually as a "Party".\nWHEREAS, the Company wishes to hire Employee.\nThe Employee agrees as follows:\n1. Confidentiality.\n(a)\nThe Employee acknowledges that, by reason of the Employee's employment by Company, Employee wil have\naccess to confidentia information of the Company ("Confidential Information"). The Employee acknowledges that such\nConfidential Information is a valuable and unique asset of the Company and covenants that, both during the term of\nEmployee's employment with the Company ("Term') and after the Term, the Employee wil not disclose any Confidential\nInformation to any person or entity (except as the Employee's duties as an employee or director of the Company may\nrequire) without the prior written authorization of the Company. The obligation of confidentiality imposed by this Section 1\nshall not apply to Confidentia Information that otherwise becomes known to the public through no act of the Employee in\nbreach of this Agreement or which is required to be disclosed by court order or applicable law. The provisions of this\nSection 1 shall remain in full force and effect for a period of three (3) years after expiration of the Term.\n(b)\nConfidential Information includes all records, designs, business plans, financial statements, customer lists,\nmanuals, memoranda, research and development plans, chemical materials, compounds, technology platforms, source\ncodes, technical data, opportunities, targets, products, electronic devices, projects, protocols, programming techniques,\nexperimental work, pricing, customers, clients, finances, Intellectual roperty and other property delivered to or compiled\nby the Employee by or on behalf of the Company or its providers, clients or customers that pertain to the business of the\nCompany shall be and remain the property of the Company and be subject at all times to its discretion and control.\nLikewise, all correspondence, reports, records, charts, advertising materials and other similar data pertaining to the\nbusiness, activities, research and development, Intellectual Property or future plans of the Company that is collected by\nthe Employee shall be delivered promptly to the Company without request by it upon termination of the Employee's\nemployment. For purposes of this Section 1(b), "Intellectual Property" shall mean patents, copyrights, trademarks, trade\ndress, trade secrets, other such rights, and any applications. The phrase, "Confidential Information" does not include\ninformation that (i) was lawfully in Employee's possession prior to disclosure of such information by the Company; (ii)\nwas, or at any time becomes, available in the public domain other than through a violation of this Agreement; (iii) is\ndocumented by Employee as having been developed by Employee outside the scope of Employee rendering services\nhereunder and independently; or (iv) is furnished to Employee by a third party not under an obligation of confidentiality to\nthe Company.\n(c)\nEmployee wil be allowed to disclose such information of the Company to the extent that such disclosure is: (i)\nduly approved in writing by the Company; (ii) necessary for Employee to enforce Employee's rights under this Agreement\nin connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative\nbody.\n2.\nInventions. The Employee is hereby retained in a capacity such that the Employee's responsibilities may include\nthe making of technical and/or managerial contributions of value to the Company. The Employee hereby assigns to the\nCompany all rights, title and interest in such contributions and inventions made or conceived by the Employee alone or\njointly with others during the Term. This assignment shall include (a) the right to file and prosecute patent applications on\nsuch inventions in any and all countries, (b) the patent applications filed and patents issuing thereon, and (c) the right to\nobtain copyright, trademark or trade name protection for any such work product. The Employee shall promptly and fully\ndisclose all such contributions and inventions to the Company and assist the Company in obtaining and protecting the\nrights therein (including patents thereon), in any and all countries; provided, however, that said contributions and\ninventions will be the property of the Company, whether or not patented or registered for copyright, trademark or trade\nname protection, as the case may be. Inventions conceived by the mployee, which are not related to the business of the\nCompany, will remain the property of the Employee, and notwithstanding the foregoing, the Company shall not have any\nright, title or interest in any work product or copyrightable work developed outside of work hours and without the use of\nCompany resources that does not relate to the Company's business and does not result from any work performed by the\nEmployee for the Company.\n3.\nAdditional Representations of Employee. mployee represents and warrants to the Company that Employee\nis\nnot Party to any written or oral agreement with any third Party that would restrict Employee's ability to enter into this\nEmployee Confidentiality Agreement or to perform Employee's obligations hereunder and that Employee will not, by\njoining the Company, breach any non-disclosure, proprietary rights, non-competition, non-solicitation or other covenant in\nfavor of any third party.\n4. Non-Solicitation of Employees. Employee agrees that for a period of one (1) year after the Term, Employee shall\nnot recruit, attempt to recruit or directly or indirectly participate in the recruitment of, any Company employee; provided,\nhowever, any general public recruitment responded to by Company employees wil not breach this provision.\n5.\nNon-Solicitation of Customers or Prospects. Employee agrees that during the Term and for a period of one (1)\nyear thereafter, Employee will not, either directly or indirectly solicit, separately or in association with others, attempt to\nsolicit, canvass or interfere with any current customer, or supplier of the Company with whom Employee had a\nrelationship while working for the Company in a manner that directly competes with the Company.\n6. General.\n6.1 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Employee\nand the Employee's heirs, executors, administrators, estate, beneficiaries, and legal representatives. Neither Party may\nassign this Agreement without the written consent of the other Party. The rights and obligations of the Company under\nthis Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of the Company.\n6.2 Waiver. Either Party's failure to enforce any provision of this Agreement shall not in any way be construed\nas a waiver of any such provision, or prevent that Party thereafter from enforcing each and every other provision of this\nAgreement.\n6.3\nAttorneys' Fees. Each side will bear its own attorneys' fees in any dispute unless a statutory section at\nissue, if any, authorizes the award of attorneys' fees to the prevailing Party.\n6.4\nGoverning Law; Venue and J urisdiction. This Agreement will be governed by and construed\nin\naccordance with the laws of the United States and the State of Nevada. Venue for litigation of any dispute hereunder\nshall lie in the courts of Clark County, Nevada. The Parties submit to persona jurisdiction in the State of Nevada.\n6.5 Counterparts. The Parties agree that this Agreement may be executed in identical counterparts. The\nAgreement will be binding and enforceable on all Parties even though signed in counterparts.\n7.\nEntire Agreement. This Agreement constitutes the entire understanding between Employee and the Company\nrelating to Employee Confidentiality matters. This Agreement supersedes and replaces any prior verbal or written\nagreements between the Company and Employee. This Agreement may not be modified or amended except by a written\nagreement signed by both Employee and a person authorized by the Board of the Company. No oral waiver, amendment\nor modification will be effective under any circumstances whatsoever.\nTHE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND\nEACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES HAVE EXECUTED THIS\nAGREEMENT ON THE DATES SHOWN BELOW.\nNexeon Meds ystems Inc.\nEmployee\nB/s/ Christopher Miller\nB/s/ Daniel Powell\nName: Christopher MilTer\nName: Daniet Powel, Individually\nIts: Chief Financia Officer\n3	EXHIBIT 10.2\nEMPLOYEE CONFIDENTIALITY AGREEMENT\nThis Agreement is entered into as of May 24, 2017 by and between Nexeon MedSystems Inc (“Company”), a\nNevada corporation with its principal address at 1708 Jaggie Fox Way, Lexington, KY 40511 and Daniel Powell\n(“Employee”). Company and Employee are referred to collectively as “Parties and individually as a “Party”.\nWHEREAS, the Company wishes to hire Employee.\nThe Employee agrees as follows:\n1. Confidentiality.\n(a)\nThe Employee acknowledges that, by reason of the Employee’s employment by Company, Employee will have\naccess to confidential information of the Company (“Confidential Information”). The Employee acknowledges that such\nConfidential Information is a valuable and unique asset of the Company and covenants that, both during the term of\nEmployee’s employment with the Company (“Term’) and after the Term, the Employee will not disclose any Confidential\nInformation to any person or entity (except as the Employee’s duties as an employee or director of the Company may\nrequire) without the prior written authorization of the Company. The obligation of confidentiality imposed by this Section 1\nshall not apply to Confidential Information that otherwise becomes known to the public through no act of the Employee in\nbreach of this Agreement or which is required to be disclosed by court order or applicable law. The provisions of this\nSection 1 shall remain in full force and effect for a period of three (3) years after expiration of the Term.\n(b)\nConfidential Information includes all records, designs, business plans, financial statements, customer lists,\nmanuals, memoranda, research and development plans, chemical materials, compounds, technology platforms, source\ncodes, technical data, opportunities, targets, products, electronic devices, projects, protocols, programming techniques,\nexperimental work, pricing, customers, clients, finances, Intellectual Property and other property delivered to or compiled\nby the Employee by or on behalf of the Company or its providers, clients or customers that pertain to the business of the\nCompany shall be and remain the property of the Company and be subject at all times to its discretion and control.\nLikewise, all correspondence, reports, records, charts, advertising materials and other similar data pertaining to the\nbusiness, activities, research and development, Intellectual Property or future plans of the Company that is collected by\nthe Employee shall be delivered promptly to the Company without request by it upon termination of the Employee’s\nemployment. For purposes of this Section 1(b), “Intellectual Property” shall mean patents, copyrights, trademarks, trade\ndress, trade secrets, other such rights, and any applications. The phrase, “Confidential Information” does not include\ninformation that (i) was lawfully in Employee’s possession prior to disclosure of such information by the Company; (ii)\nwas, or at any time becomes, available in the public domain other than through a violation of this Agreement; (iii) is\ndocumented by Employee as having been developed by Employee outside the scope of Employee rendering services\nhereunder and independently; or (iv) is furnished to Employee by a third party not under an obligation of confidentiality to\nthe Company.\n1\n(c)\nEmployee will be allowed to disclose such information of the Company to the extent that such disclosure is: (i)\nduly approved in writing by the Company; (ii) necessary for Employee to enforce Employee’s rights under this Agreement\nin connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative\nbody.\n2. Inventions. The Employee is hereby retained in a capacity such that the Employee’s responsibilities may include\nthe making of technical and/or managerial contributions of value to the Company. The Employee hereby assigns to the\nCompany all rights, title and interest in such contributions and inventions made or conceived by the Employee alone or\njointly with others during the Term. This assignment shall include (a) the right to file and prosecute patent applications on\nsuch inventions in any and all countries, (b) the patent applications filed and patents issuing thereon, and (c) the right to\nobtain copyright, trademark or trade name protection for any such work product. The Employee shall promptly and fully\ndisclose all such contributions and inventions to the Company and assist the Company in obtaining and protecting the\nrights therein (including patents thereon), in any and all countries; provided, however, that said contributions and\ninventions will be the property of the Company, whether or not patented or registered for copyright, trademark or trade\nname protection, as the case may be. Inventions conceived by the Employee, which are not related to the business of the\nCompany, will remain the property of the Employee, and notwithstanding the foregoing, the Company shall not have any\nright, title or interest in any work product or copyrightable work developed outside of work hours and without the use of\nCompany resources that does not relate to the Company’s business and does not result from any work performed by the\nEmployee for the Company.\n3. Additional Representations of Employee. Employee represents and warrants to the Company that Employee is\nnot Party to any written or oral agreement with any third Party that would restrict Employee’s ability to enter into this\nEmployee Confidentiality Agreement or to perform Employee’s obligations hereunder and that Employee will not, by\njoining the Company, breach any non-disclosure, proprietary rights, non-competition, non-solicitation or other covenant in\nfavor of any third party.\n4. Non-Solicitation of Employees. Employee agrees that for a period of one (1) year after the Term, Employee shall\nnot recruit, attempt to recruit or directly or indirectly participate in the recruitment of, any Company employee; provided,\nhowever, any general public recruitment responded to by Company employees will not breach this provision.\n5. Non-Solicitation of Customers or Prospects. Employee agrees that during the Term and for a period of one (1)\nyear thereafter, Employee will not, either directly or indirectly solicit, separately or in association with others, attempt to\nsolicit, canvass or interfere with any current customer, or supplier of the Company with whom Employee had a\nrelationship while working for the Company in a manner that directly competes with the Company.\n6. General.\n6.1 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Employee\nand the Employee’s heirs, executors, administrators, estate, beneficiaries, and legal representatives. Neither Party may\nassign this Agreement without the written consent of the other Party. The rights and obligations of the Company under\nthis Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of the Company.\n2\n6.2 Waiver. Either Party’s failure to enforce any provision of this Agreement shall not in any way be construed\nas a waiver of any such provision, or prevent that Party thereafter from enforcing each and every other provision of this\nAgreement.\n6.3 Attorneys’ Fees. Each side will bear its own attorneys’ fees in any dispute unless a statutory section at\nissue, if any, authorizes the award of attorneys’ fees to the prevailing Party.\n6.4\nGoverning Law; Venue and Jurisdiction. This Agreement will be governed by and construed in\naccordance with the laws of the United States and the State of Nevada. Venue for litigation of any dispute hereunder\nshall lie in the courts of Clark County, Nevada. The Parties submit to personal jurisdiction in the State of Nevada.\n6.5 Counterparts. The Parties agree that this Agreement may be executed in identical counterparts. The\nAgreement will be binding and enforceable on all Parties even though signed in counterparts.\n7.\nEntire Agreement. This Agreement constitutes the entire understanding between Employee and the Company\nrelating to Employee Confidentiality matters. This Agreement supersedes and replaces any prior verbal or written\nagreements between the Company and Employee. This Agreement may not be modified or amended except by a written\nagreement signed by both Employee and a person authorized by the Board of the Company. No oral waiver, amendment\nor modification will be effective under any circumstances whatsoever.\nTHE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND\nEACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES HAVE EXECUTED THIS\nAGREEMENT ON THE DATES SHOWN BELOW.\nNexeon MedSystems Inc.\nEmployee\nBy:/s/ Christopher Miller\nBy:/s/ Daniel Powell\nName: Christopher Miller\nName: Daniel Powell, Individually\nIts: Chief Financial Officer\n3
+71cea3853cdc5702fb97a8b56691ebce.pdf	effective_date jurisdiction party term	EX-99 .(D)(2) 2 tv508217_ex-d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (the “Agreement”) is made and entered into effective December 18, 2017 by and between Pareteum\nCorporation, a Delaware corporation having its corporate address at: 100 Park Avenue, Suite 1600, New York City, New York 10017, USA\n(“TEUM”), and iPass Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA\n(“iPass”), either both of which may be hereinafter referred to as "the Party" or "the Parties."\nWHEREAS\nThe Parties desire to discuss certain business transactions and to exchange information for the purpose of exploring a potential business\nrelationship for the benefit of the Parties and/or to sign a business contract that shall include confidential technical or business information of\neach Party or entitle each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in\norder for the Parties to receive from each other, either orally or in writing, certain technical and business information under terms that will protect\nthe confidential and proprietary nature of such information, the Parties have entered into this Agreement.\nNOW THEREFORE, THE PARTIES AGREE AS FOLLOWS;\n1. The Definition of "Confidential Information": The term "Confidential Information" shall mean all information disclosed by one Party to\nthe other Party, whether orally, in written, electronic or other format, and whether disclosed by a Party’s agents, principals, employees or\nrepresentatives, and whether to the other Party's agent's principals, employees or representatives. “Confidential Information” shall include,\nwithout limitation, all ideas improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived,\ndeveloped, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other\nlegal protection (including, without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components,\ncomputers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production,\nprocesses, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic\nalliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information, customer and\nprospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential and actual customers, and\nsuppliers and all documentation, materials and media provided by one Party to the other).\n2. Protection of "Confidential Information": In consideration of each Party's disclosure of Confidential Information to the other Party, each\nParty agrees with respect to the Confidential Information received from the other Party, that it:\n(a) shall maintain such Confidential Information in the strictest confidence;\nPareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM\n(b) shall not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such Confidential\nInformation must be disclosed for the purposes contemplated herein, or under legal compulsion to disclose any such Confidential\nInformation, in which event each Party shall, prior to such disclosure, obtain written consent from the other Party and obtain from the\nthird person a written agreement acknowledging the binding effect of these restrictions regarding the Confidential Information; and\n(c) shall not directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than evaluating the\nprospective business relationship with the other Party in accordance with the introduction.\nEach Party shall take reasonable measures to protect the Confidential Information of the other Party. Those measures shall not be less than\nthe measures taken to protect the receiving Party’s own confidential information. Confidential Information of the other Party may be\nprovided to a Party’s employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom\nsuch disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee.\n3. Excluded Information: This Agreement shall not apply to any information:\n(a) that has been or which becomes publicly known, through no wrongful act of either Party;\n(b) which is required to be disclosed in order to comply with applicable law or regulation or with any requirement imposed by judicial or\nadministrative process or any governmental or court order.\n4. No Licenses or Warranties: Each Party’s Confidential Information and all rights thereto shall remain such Party’s sole property. Each Party\nrecognizes that the disclosure of Confidential Information by the disclosing Party shall not be construed as granting any rights, by license or\notherwise, concerning any Confidential Information, except as may be explicitly created by this Agreement. Each Party acknowledges that\nthe other Party’s Confidential Information includes valuable trade secrets. Neither Party has any obligation to disclose Confidential\nInformation to the other Party. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY,\nCOMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF ITS CONFIDENTIAL\nINFORMATION.\n5. Remedies: If either Party causes a disclosure of the other Party’s Confidential Information in breach of the terms of this Agreement, the\ndisclosing Party shall immediately report in writing the disclosure to the other Party and shall save, defend, indemnify and hold the non-\ndisclosing Party harmless from and against any and all liability and damages suffered by the non-disclosing Party arising therefrom. In\naddition to the foregoing and without limitation thereof, the disclosing Party shall cooperate in prosecuting any claims against third parties\nfor unauthorized use of any Confidential Information. Each Party acknowledges that unauthorized disclosure, use or disposition, whether\nactual or threatened, of any Confidential Information shall cause irreparable harm, loss of business and significant injury to the disclosing\nParty, the scope of which would be difficult to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an\nimmediate injunction against any breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that\nmay be available at law, including without limitation, the recovery of expenses, costs and attorney’s fees arising out of such breach,\nthreatened breach or attempted breach.\n6. Return of "Confidential Information": All Confidential Information shall be returned to the disclosing Parties promptly upon written\nrequest or, at the election of the disclosing Party, the Party that received the Confidential Information shall certify said information has been\ndestroyed and is no longer useable in any format.\nPareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM\n7. Securities: Parties hereby acknowledge, covenant and agree that they are aware that United States securities laws may prohibit any person\nwho has material, non-public information about a company (including a Party) from purchasing or selling, directly or indirectly, securities of\na company (including the Parties), or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n8. Prohibition of Disclosure: Neither Party hereto shall in any way or in any form distribute, disclose, publicize, issue press releases, or\nadvertise in any manner, including, but not limited to, making representation in court pleadings, except as required by law, the discussions\nthat gave rise to this Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information\nprovided pursuant to this Agreement, without first obtaining the prior written consent of the other Party.\n9. Term, Assignment and Survival: This Agreement shall be valid unless terminated by mutual written Agreement. Each Party’s obligations\nwith respect to the Confidential Information, including but not limited to, sections 2,4,5,6 shall survive the termination of this Agreement\nand/or return of all Confidential Information from the latter date of either termination or return of such information. Neither this Agreement\nnor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party.\n10. Governing Law; Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of New York,\nUnited States of America. In the event of any disputes arising under this Agreement, the undersigned Parties without regard to any principles\nof conflicts of laws and waiving any defenses of forum non conveniens hereby submit to the exclusive personal and subject matter\njurisdiction of the State and Federal Courts situated in the Borough of Manhattan, New York, New York.\n11. Waiver: No failure by either Party to exercise any rights arising from default by the other Party shall impair that right or constitute a waiver\nof it. No waiver by either Party of any covenant to be performed by the other shall constitute a waiver of any later breach of covenant.\n12. Counterparts: This Agreement may be executed in two signed copies, each of which when taken together shall be deemed but one original.\n13. Severability: The validity or unenforceability of any provision or provisions of this Agreement shall no affect the validity or enforceability\nof any other provision hereof, which shall remain in full force and effect.\n14. Entire Agreement; Amendment: This Agreement contains the entire understandings between and among the Parties and supersedes any\nprior understanding and agreements among them respecting the subject matter hereof. No amendment to this Agreement shall be valid unless\nset forth in writing and signed by both Parties.\n15. Notices: All notices required or permitted hereunder shall be in writing and shall be sent by nationally recognized overnight courier service,\nor by registered or certified mail, to the addresses stated in the heading of this Agreement. Unless otherwise specified, notices shall be\ndeemed given when the return receipt is received.\n16. Non-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS A MATERIAL INDUCEMENT FOR TEUM TO\nMAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer opportunities that are\nidentified by TEUM (collectively, the “TEUM Leads”) to iPass, that iPass shall not negotiate directly or indirectly solicit or otherwise\nattempt to cause the TEUM Leads enter into any form of agreement with iPass without the consent of TEUM, which consent may be given\nor withheld in TEUM’s sole discretion. In addition to the foregoing, and without limitation thereof, iPass shall not circumvent or otherwise\nengage in any form of direct or indirect communications with any TEUM Leads without the prior written approval of TEUM, which\napproval may be given or withheld in TEUM’s sole discretion.\n[REMAINDER OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.]\nPareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM\n[SIGNATURE PAGE TO NON-DISCLOSURE AGREEMENT]\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the\ndate and year written above.\nPareteum Corporation\n/s/ Denis McCarthy\nName: Denis McCarthy\nTitle: SVP Corporate Developement\nDate: February 15, 2018\niPass:\n/s/ Darin Vickery\nName: Darin VIckery\nTitle: CFO\nDate: December 20, 2017\nEmail: ............................................\nPareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM	EX-99.(D)(2) 2 tv508217_ex-d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (the “Agreement”) is made and entered into effective December 18, 2017 by and between Pareteum\nCorporation, a Delaware corporation having its corporate address at: 100 Park Avenue, Suite 1600, New York City, New York 10017, USA\n(“TEUM?”), and iPass Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA\n(“iPass”), either both of which may be hereinafter referred to as "the Party" or "the Parties."”\nWHEREAS\nThe Parties desire to discuss certain business transactions and to exchange information for the purpose of exploring a potential business\nrelationship for the benefit of the Parties and/or to sign a business contract that shall include confidential technical or business information of\neach Party or entitle each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in\norder for the Parties to receive from each other, either orally or in writing, certain technical and business information under terms that will protect\nthe confidential and proprietary nature of such information, the Parties have entered into this Agreement.\nNOW THEREFORE, THE PARTIES AGREE AS FOLLOWS;\n1. The Definition of "Confidential Information": The term "Confidential Information" shall mean all information disclosed by one Party to\nthe other Party, whether orally, in written, electronic or other format, and whether disclosed by a Party’s agents, principals, employees or\nrepresentatives, and whether to the other Party's agent's principals, employees or representatives. “Confidential Information” shall include,\nwithout limitation, all ideas improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived,\ndeveloped, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other\nlegal protection (including, without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components,\ncomputers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production,\nprocesses, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic\nalliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information, customer and\nprospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential and actual customers, and\nsuppliers and all documentation, materials and media provided by one Party to the other).\n2. Protection of "Confidential Information": In consideration of each Party's disclosure of Confidential Information to the other Party, each\nParty agrees with respect to the Confidential Information received from the other Party, that it:\n(a) shall maintain such Confidential Information in the strictest confidence;\nPareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM\n(b) shall not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such Confidential\nInformation must be disclosed for the purposes contemplated herein, or under legal compulsion to disclose any such Confidential\nInformation, in which event each Party shall, prior to such disclosure, obtain written consent from the other Party and obtain from the\nthird person a written agreement acknowledging the binding effect of these restrictions regarding the Confidential Information; and\n(c) shall not directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than evaluating the\nprospective business relationship with the other Party in accordance with the introduction,\nEach Party shall take reasonable measures to protect the Confidential Information of the other Party. Those measures shall not be less than\nthe measures taken to protect the receiving Party’s own confidential information. Confidential Information of the other Party may be\nprovided to a Party’s employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom\nsuch disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee.\nExcluded Information: This Agreement shall not apply to any information:\n(a) that has been or which becomes publicly known, through no wrongful act of either Party;\n(b) which is required to be disclosed in order to comply with applicable law or regulation or with any requirement imposed by judicial or\nadministrative process or any governmental or court order.\nNo Licenses or Warranties: Each Party’s Confidential Information and all rights thereto shall remain such Party’s sole property. Each Party\nrecognizes that the disclosure of Confidential Information by the disclosing Party shall not be construed as granting any rights, by license or\notherwise, concerning any Confidential Information, except as may be explicitly created by this Agreement. Each Party acknowledges that\nthe other Party’s Confidential Information includes valuable trade secrets. Neither Party has any obligation to disclose Confidential\nInformation to the other Party. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY,\nCOMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF ITS CONFIDENTIAL\nINFORMATION.\nRemedies: If either Party causes a disclosure of the other Party’s Confidential Information in breach of the terms of this Agreement, the\ndisclosing Party shall immediately report in writing the disclosure to the other Party and shall save, defend, indemnify and hold the non-\ndisclosing Party harmless from and against any and all liability and damages suffered by the non-disclosing Party arising therefrom. In\naddition to the foregoing and without limitation thereof, the disclosing Party shall cooperate in prosecuting any claims against third parties\nfor unauthorized use of any Confidential Information. Each Party acknowledges that unauthorized disclosure, use or disposition, whether\nactual or threatened, of any Confidential Information shall cause irreparable harm, loss of business and significant injury to the disclosing\nParty, the scope of which would be difficult to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an\nimmediate injunction against any breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that\nmay be available at law, including without limitation, the recovery of expenses, costs and attorney’s fees arising out of such breach,\nthreatened breach or attempted breach.\nReturn of "Confidential Information": All Confidential Information shall be returned to the disclosing Parties promptly upon written\nrequest or, at the election of the disclosing Party, the Party that received the Confidential Information shall certify said information has been\ndestroyed and is no longer useable in any format.\nPareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM\n10. 11. 12. 13. 14. 15. 16. Securities: Parties hereby acknowledge, covenant and agree that they are aware that United States securities laws may prohibit any person\nwho has material, non-public information about a company (including a Party) from purchasing or selling, directly or indirectly, securities of\na company (including the Parties), or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\nProhibition of Disclosure: Neither Party hereto shall in any way or in any form distribute, disclose, publicize, issue press releases, or\nadvertise in any manner, including, but not limited to, making representation in court pleadings, except as required by law, the discussions\nthat gave rise to this Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information\nprovided pursuant to this Agreement, without first obtaining the prior written consent of the other Party.\nTerm, Assignment and Survival: This Agreement shall be valid unless terminated by mutual written Agreement. Each Party’s obligations\nwith respect to the Confidential Information, including but not limited to, sections 2,4,5,6 shall survive the termination of this Agreement\nand/or return of all Confidential Information from the latter date of either termination or return of such information. Neither this Agreement\nnor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party.\nGoverning Law; Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of New York,\nUnited States of America. In the event of any disputes arising under this Agreement, the undersigned Parties without regard to any principles\nof conflicts of laws and waiving any defenses of forum non conveniens hereby submit to the exclusive personal and subject matter\njurisdiction of the State and Federal Courts situated in the Borough of Manhattan, New York, New York.\nWaiver: No failure by either Party to exercise any rights arising from default by the other Party shall impair that right or constitute a waiver\nof it. No waiver by either Party of any covenant to be performed by the other shall constitute a waiver of any later breach of covenant.\nCounterparts: This Agreement may be executed in two signed copies, each of which when taken together shall be deemed but one original.\nSeverability: The validity or unenforceability of any provision or provisions of this Agreement shall no affect the validity or enforceability\nof any other provision hereof, which shall remain in full force and effect.\nEntire Agreement; Amendment: This Agreement contains the entire understandings between and among the Parties and supersedes any\nprior understanding and agreements among them respecting the subject matter hereof. No amendment to this Agreement shall be valid unless\nset forth in writing and signed by both Parties.\nNotices: All notices required or permitted hereunder shall be in writing and shall be sent by nationally recognized overnight courier service,\nor by registered or certified mail, to the addresses stated in the heading of this Agreement. Unless otherwise specified, notices shall be\ndeemed given when the return receipt is received.\nNon-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS A MATERIAL INDUCEMENT FOR TEUM TO\nMAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer opportunities that are\nidentified by TEUM (collectively, the “TEUM Leads”) to iPass, that iPass shall not negotiate directly or indirectly solicit or otherwise\nattempt to cause the TEUM Leads enter into any form of agreement with iPass without the consent of TEUM, which consent may be given\nor withheld in TEUM’s sole discretion. In addition to the foregoing, and without limitation thereof, iPass shall not circumvent or otherwise\nengage in any form of direct or indirect communications with any TEUM Leads without the prior written approval of TEUM, which\napproval may be given or withheld in TEUM’s sole discretion.\n[REMAINDER OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.]\nPareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM\n[SIGNATURE PAGE TO NON-DISCLOSURE AGREEMENT]\nIN WITNESS WHEREQF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the\ndate and year written above.\nPareteum Corporation iPass:\n/s/ Denis McCarthy /s/ Darin Vickery\nName: Denis McCarthy Name: Darin VIckery\nTitle: SVP Corporate Developement Title: CFO\nDate: February 15, 2018 Date: December 20, 2017\nEmail: coooviiiiiiiieieieree\nPareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM	EX-99.(D)(2) 2 tv508217_ex-d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (the "Agreement") is made and entered into effective December 18, 2017 by and between Pareteum\nCorporation, a Delaware corporation having its corporate address at: 100 Park Avenue, Suite 1600, New York City, New York 10017, USA\n("TEUM"), and iPass Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA\n("iPass"), either both of which may be hereinafter referred to as "the Party" or "the Parties."\nWHEREAS\nThe Parties desire to discuss certain business transactions and to exchange information for the purpose of exploring a potential business\nrelationship for the benefit of the Parties and/or to sign a business contract that shall include confidential technical or business information of\neach\nParty or entitle each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in\norder for the Parties to receive from each other, either orally or in writing, certain technical and business information under terms that will protect\nthe confidential and proprietary nature of such information, the Parties have entered into this Agreement.\nNOW THEREFORE, THE PARTIES AGREE AS FOLLOWS;\n1.\nThe\nDefinition\nof\n"Confidential\nInformation":\nThe\nterm\n"Confidential\nInformation"\nshall\nmean\nall\ninformation\ndisclosed\nby\none\nParty\nto\nthe other Party, whether orally, in written, electronic or other format, and whether disclosed by a Party's agents, principals, employees or\nrepresentatives, and whether to the other Party's agent's principals, employees or representatives. "Confidential Information" shall include,\nwithout limitation, all ideas improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived,\ndeveloped, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other\nlegal protection (including, without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components,\ncomputers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production,\nprocesses, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic\nalliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information, customer and\nprospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential and actual customers, and\nsuppliers and all documentation, materials and media provided by one Party to the other).\n2.\nProtection of "Confidential Information": In consideration of each Party's disclosure of Confidential Information to the other Party, each\nParty agrees with respect to the Confidential Information received from the other Party, that it:\n(a) shall maintain such Confidential Information in the strictest confidence;\nPareteum Corporation 100 Park Ave. Suite 1600 New York NY 10017 United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM\n(b) shall not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such Confidential\nInformation must be disclosed for the purposes contemplated herein, or under legal compulsion to disclose any such Confidential\nInformation,\nin\nwhich\nevent\neach\nParty\nshall,\nprior\nto\nsuch\ndisclosure,\nobtain\nwritten\nconsent\nfrom\nthe\nother\nParty\nand\nobtain\nfrom\nthe\nthird person a written agreement acknowledging the binding effect of these restrictions regarding the Confidentia Information; and\n(c)\nshall not directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than evaluating the\nprospective business relationship with the other Party in accordance with the introduction,\nEach Party shall take reasonable measures to protect the Confidentia Information of the other Party. Those measures shall not be less than\nthe\nmeasures taken to protect the receiving Party's own confidential information. Confidential Information of the other Party may be\nprovided to a Party's employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom\nsuch disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee.\n3.\nExcluded Information: This Agreement shall not apply to any information:\n(a) that has been or which becomes publicly known, through no wrongful act of either Party;\n(b) which is required to be disclosed in order to comply with applicable law or regulation or with any requirement imposed by judicial or\nadministrative process or any governmental or court order.\n4.\nNo Licenses or Warranties: Each Party's Confidential Information and all rights thereto shall remain such Party's sole property. Each Party\nrecognizes that the disclosure of Confidential Information by the disclosing Party shall not be construed as granting any rights, by license or\notherwise, concerning any Confidential Information, except as may be explicitly created by this Agreement. Each Party acknowledges\nthat\nthe other Party's Confidential Information includes valuable trade secrets. Neither Party has any obligation to disclose Confidential\nInformation to the other Party. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY,\nCOMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF ITS CONFIDENTIAL\nINFORMATION.\n5.\nRemedies: If either Party causes a disclosure of the other Party's Confidential Information in breach of the terms of this Agreement, the\ndisclosing Party shall immediately report in writing the disclosure to the other Party and shall save, defend, indemnify and hold the non-\ndisclosing Party harmless from and against any and all liability and damages suffered by the non-disclosing Party arising therefrom. In\naddition to the foregoing and without limitation thereof, the disclosing Party shall cooperate in prosecuting any claims against third parties\nfor unauthorized use of any Confidential Information Each Party acknowledges that unauthorized disclosure, use or disposition, whether\nactual or threatened, of any Confidential Information shall cause irreparable harm, loss of business and significant injury to the disclosing\nParty, the scope of which would be difficult to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an\nimmediate injunction against any breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that\nmay be available at law, including without limitation, the recovery of expenses, costs and attorney's fees arising out of such breach,\nthreatened breach or attempted breach.\n6.\nReturn of "Confidential Information": All Confidential Information shall be returned to the disclosing Parties promptly upon written\nrequest or, at the election of the disclosing Party, the Party that received the Confidential Information shall certify said information has been\ndestroyed and is no longer useable in any format.\nPareteum Corporation 100 Park Ave. Suite 1600 New York NY 10017 United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM\n7. Securities: Parties hereby acknowledge, covenant and agree that they are aware that United States securities laws may prohibit any person\nwho has material, non-public information about a company (including a Party) from purchasing or selling, directly or indirectly, securities of\na\ncompany (including the Parties), or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n8. Prohibition of Disclosure: Neither Party hereto shall in any way or in any form distribute, disclose, publicize, issue press releases, or\nadvertise in any manner, including, but not limited to, making representation in court pleadings, except as required by law, the discussions\nthat gave rise to this Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information\nprovided pursuant to this Agreement, without first obtaining the prior written consent of the other Party.\n9.\nTerm, Assignment and Survival: This Agreement shall be valid unless terminated by mutual written Agreement. Each Party's obligations\nwith respect to the Confidential Information, including but not limited to, sections 2,4,5,6 shall survive the termination of this Agreement\nand/or return of all Confidential Information from the latter date of either termination or return of such information. Neither this Agreement\nnor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party.\n10. Governing Law; Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of New York,\nUnited States of America. In the event of any disputes arising under this Agreement, the undersigned Parties without regard to any principles\nof\nconflicts of laws and waiving any defenses of forum non conveniens hereby submit to the exclusive personal and subject matter\njurisdiction of the State and Federal Courts situated in the Borough of Manhattan, New York, New York.\n11. Waiver: No failure by either Party to exercise any rights arising from default by the other Party shall impair that right or constitute a waiver\nof it. No waiver by either Party of any covenant to be performed by the other shall constitute a waiver of any later breach of covenant.\n12. Counterparts: This Agreement may be executed in two signed copies, each of which when taken together shall be deemed but one original.\n13. Severability: The validity or unenforceability of any provision or provisions of this Agreement shall no affect the validity or enforceability\nof any other provision hereof, which shall remain in full force and effect.\n14.\nEntire Agreement; Amendment: This Agreement contains the entire understandings between and among the Parties and supersedes any\nprior understanding and agreements among them respecting the subject matter hereof. No amendment to this Agreement shall be valid unless\nset forth in writing and signed by both Parties.\n15. Notices: All notices required or permitted hereunder shall be in writing and shall be sent by nationally recognized overnight courier service,\nor by registered or certified mail, to the addresses stated in the heading of this Agreement. Unless otherwise specified, notices shall be\ndeemed given when the return receipt is received.\n16. Non-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS A MATERIAL INDUCEMENT FOR TEUM TO\nMAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer opportunities that are\nidentified by TEUM (collectively, the "TEUM Leads") to iPass, that iPass shall not negotiate directly or indirectly solicit or otherwise\nattempt to cause the TEUM Leads enter into any form of agreement with iPass without the consent of TEUM, which consent may be given\nor withheld in TEUM's sole discretion. In addition to the foregoing, and without limitation thereof, iPass shall not circumvent or otherwise\nengage in any form of direct or indirect communications with any TEUM Leads without the prior written approval of TEUM, which\napproval may be given or withheld in TEUM's sole discretion.\n[REMAINDER OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.]\nPareteum Corporation 100 Park Ave. Suite 1600 New York NY 10017 United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM\n[SIGNATURE PAGE TO NON-DISCLOSURE AGREEMENT]\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the\ndate and year written above.\nPareteum Corporation\niPass:\n/s/ Denis McCarthy\n/s/ Darin Vickery\nName: Denis McCarthy\nName: Darin VIckery\nTitle: SVP Corporate Developement\nTitle: CFO\nDate: February 15, 2018\nDate: December 20, 2017\nEmail:\nPareteum Corporation 100 Park Ave. I Suite 1600 I New York I NY 10017 United States\nTel. +1 (212) 984.1096\nww.Pareteum.com\nNYSE MKT: TEUM	EX-99 .(D)(2) 2 tv508217_ex-d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (the “Agreement”) is made and entered into effective December 18, 2017 by and between Pareteum\nCorporation, a Delaware corporation having its corporate address at: 100 Park Avenue, Suite 1600, New York City, New York 10017, USA\n(“TEUM”), and iPass Inc., a Delaware corporation having its address at: 3800 Bridge Parkway, Redwood Shores, California 94065, USA\n(“iPass”), either both of which may be hereinafter referred to as "the Party" or "the Parties."\nWHEREAS\nThe Parties desire to discuss certain business transactions and to exchange information for the purpose of exploring a potential business\nrelationship for the benefit of the Parties and/or to sign a business contract that shall include confidential technical or business information of\neach Party or entitle each Party to exchange information for the execution of this business contract. In order to facilitate these discussions and in\norder for the Parties to receive from each other, either orally or in writing, certain technical and business information under terms that will protect\nthe confidential and proprietary nature of such information, the Parties have entered into this Agreement.\nNOW THEREFORE, THE PARTIES AGREE AS FOLLOWS;\n1. The Definition of "Confidential Information": The term "Confidential Information" shall mean all information disclosed by one Party to\nthe other Party, whether orally, in written, electronic or other format, and whether disclosed by a Party’s agents, principals, employees or\nrepresentatives, and whether to the other Party's agent's principals, employees or representatives. “Confidential Information” shall include,\nwithout limitation, all ideas improvements, inventions, methodologies, works and other innovations of any kind, authored, conceived,\ndeveloped, made or reduced to practice by the disclosing Party, whether or not eligible for copyright, patent, trademark, trade secret or other\nlegal protection (including, without limitation, formulas, processes, databases, mechanical and electronic hardware, electronic components,\ncomputers and their parts, computer programs and their documentation, encoding techniques, marketing and new product plans, production,\nprocesses, advertising, packaging and marketing techniques, marketing plans, product plans, technical plans, business strategies, strategic\nalliances and partners, financial information, engineering data, methodologies and processes, forecasts, personnel information, customer and\nprospective customer lists, trade secrets, product design, capabilities, specifications, the identify of potential and actual customers, and\nsuppliers and all documentation, materials and media provided by one Party to the other).\n2. Protection of "Confidential Information": In consideration of each Party's disclosure of Confidential Information to the other Party, each\nParty agrees with respect to the Confidential Information received from the other Party, that it:\n(a) shall maintain such Confidential Information in the strictest confidence;\nPareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM\n(b) shall not disclose, transfer or otherwise make available any of such Confidential Information to any third party, unless such Confidential\nInformation must be disclosed for the purposes contemplated herein, or under legal compulsion to disclose any such Confidential\nInformation, in which event each Party shall, prior to such disclosure, obtain written consent from the other Party and obtain from the\nthird person a written agreement acknowledging the binding effect of these restrictions regarding the Confidential Information; and\n(c) shall not directly, indirectly or in concert with any person, use the Confidential Information for any purpose other than evaluating the\nprospective business relationship with the other Party in accordance with the introduction.\nEach Party shall take reasonable measures to protect the Confidential Information of the other Party. Those measures shall not be less than\nthe measures taken to protect the receiving Party’s own confidential information. Confidential Information of the other Party may be\nprovided to a Party’s employees only on a need-to-know basis, and prior to such provision, the Party will notify each employee to whom\nsuch disclosure is made that such Confidential Information is received in confidence and shall be kept in confidence by such employee.\n3. Excluded Information: This Agreement shall not apply to any information:\n(a) that has been or which becomes publicly known, through no wrongful act of either Party;\n(b) which is required to be disclosed in order to comply with applicable law or regulation or with any requirement imposed by judicial or\nadministrative process or any governmental or court order.\n4. No Licenses or Warranties: Each Party’s Confidential Information and all rights thereto shall remain such Party’s sole property. Each Party\nrecognizes that the disclosure of Confidential Information by the disclosing Party shall not be construed as granting any rights, by license or\notherwise, concerning any Confidential Information, except as may be explicitly created by this Agreement. Each Party acknowledges that\nthe other Party’s Confidential Information includes valuable trade secrets. Neither Party has any obligation to disclose Confidential\nInformation to the other Party. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY,\nCOMPLETENESS, CONDITION, FITNESS and MERCHANTABILITY, OR PERFORMANCE OF ITS CONFIDENTIAL\nINFORMATION.\n5. Remedies: If either Party causes a disclosure of the other Party’s Confidential Information in breach of the terms of this Agreement, the\ndisclosing Party shall immediately report in writing the disclosure to the other Party and shall save, defend, indemnify and hold the non-\ndisclosing Party harmless from and against any and all liability and damages suffered by the non-disclosing Party arising therefrom. In\naddition to the foregoing and without limitation thereof, the disclosing Party shall cooperate in prosecuting any claims against third parties\nfor unauthorized use of any Confidential Information. Each Party acknowledges that unauthorized disclosure, use or disposition, whether\nactual or threatened, of any Confidential Information shall cause irreparable harm, loss of business and significant injury to the disclosing\nParty, the scope of which would be difficult to ascertain. Each Party agrees, therefore, that the disclosing Party has the right to obtain an\nimmediate injunction against any breach, threatened breach or attempted breach of this Agreement, in addition to any other remedies that\nmay be available at law, including without limitation, the recovery of expenses, costs and attorney’s fees arising out of such breach,\nthreatened breach or attempted breach.\n6. Return of "Confidential Information": All Confidential Information shall be returned to the disclosing Parties promptly upon written\nrequest or, at the election of the disclosing Party, the Party that received the Confidential Information shall certify said information has been\ndestroyed and is no longer useable in any format.\nPareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM\n7. Securities: Parties hereby acknowledge, covenant and agree that they are aware that United States securities laws may prohibit any person\nwho has material, non-public information about a company (including a Party) from purchasing or selling, directly or indirectly, securities of\na company (including the Parties), or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n8. Prohibition of Disclosure: Neither Party hereto shall in any way or in any form distribute, disclose, publicize, issue press releases, or\nadvertise in any manner, including, but not limited to, making representation in court pleadings, except as required by law, the discussions\nthat gave rise to this Agreement, the discussions or negotiations covered by this Agreement, this Agreement or the Confidential Information\nprovided pursuant to this Agreement, without first obtaining the prior written consent of the other Party.\n9. Term, Assignment and Survival: This Agreement shall be valid unless terminated by mutual written Agreement. Each Party’s obligations\nwith respect to the Confidential Information, including but not limited to, sections 2,4,5,6 shall survive the termination of this Agreement\nand/or return of all Confidential Information from the latter date of either termination or return of such information. Neither this Agreement\nnor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by either Party.\n10. Governing Law; Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of the State of New York,\nUnited States of America. In the event of any disputes arising under this Agreement, the undersigned Parties without regard to any principles\nof conflicts of laws and waiving any defenses of forum non conveniens hereby submit to the exclusive personal and subject matter\njurisdiction of the State and Federal Courts situated in the Borough of Manhattan, New York, New York.\n11. Waiver: No failure by either Party to exercise any rights arising from default by the other Party shall impair that right or constitute a waiver\nof it. No waiver by either Party of any covenant to be performed by the other shall constitute a waiver of any later breach of covenant.\n12. Counterparts: This Agreement may be executed in two signed copies, each of which when taken together shall be deemed but one original.\n13. Severability: The validity or unenforceability of any provision or provisions of this Agreement shall no affect the validity or enforceability\nof any other provision hereof, which shall remain in full force and effect.\n14. Entire Agreement; Amendment: This Agreement contains the entire understandings between and among the Parties and supersedes any\nprior understanding and agreements among them respecting the subject matter hereof. No amendment to this Agreement shall be valid unless\nset forth in writing and signed by both Parties.\n15. Notices: All notices required or permitted hereunder shall be in writing and shall be sent by nationally recognized overnight courier service,\nor by registered or certified mail, to the addresses stated in the heading of this Agreement. Unless otherwise specified, notices shall be\ndeemed given when the return receipt is received.\n16. Non-solicitation/Non-circumvention. iPass understands, acknowledges and agrees, AS A MATERIAL INDUCEMENT FOR TEUM TO\nMAKE AND ENTER INTO THIS AGREEMENT, that with respect to any customer or prospective customer opportunities that are\nidentified by TEUM (collectively, the “TEUM Leads”) to iPass, that iPass shall not negotiate directly or indirectly solicit or otherwise\nattempt to cause the TEUM Leads enter into any form of agreement with iPass without the consent of TEUM, which consent may be given\nor withheld in TEUM’s sole discretion. In addition to the foregoing, and without limitation thereof, iPass shall not circumvent or otherwise\nengage in any form of direct or indirect communications with any TEUM Leads without the prior written approval of TEUM, which\napproval may be given or withheld in TEUM’s sole discretion.\n[REMAINDER OF PAGE LEFT BLANK. SIGNATURES ON FOLLOWING PAGE.]\nPareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM\n[SIGNATURE PAGE TO NON-DISCLOSURE AGREEMENT]\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the\ndate and year written above.\nPareteum Corporation\n/s/ Denis McCarthy\nName: Denis McCarthy\nTitle: SVP Corporate Developement\nDate: February 15, 2018\niPass:\n/s/ Darin Vickery\nName: Darin VIckery\nTitle: CFO\nDate: December 20, 2017\nEmail: ............................................\nPareteum Corporation | 100 Park Ave. | Suite 1600 | New York | NY 10017 | United States\nTel. +1 (212) 984.1096\nwww.Pareteum.com\nNYSE MKT: TEUM
+72aad2a6891da0555ff6ad0b1166f0d2.pdf	effective_date jurisdiction party term	EX-99.(D)(6) 12 dex99d6.htm MUTUAL CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nSPRINT CORPORATION\nCharles R. Wunsch\nLaw, Corporate Transactions\nVice President\n6200 Sprint Parkway\nOverland Park, Kansas 66251\nVoice 913 794 1496\nFax 913 523 9802\ncharles.wunsch@mail.sprint.com\nJuly 5, 2005\nUS Unwired Inc.\n901 Lakeshore Drive\nLake Charles, Louisiana 70601\nAttention: General Counsel\nMutual Confidentiality Agreement\nLadies and Gentlemen:\nIn connection with a possible transaction (the “Proposed Transaction”) between Sprint Corporation (“Sprint”) and US Unwired Inc. (“USU”),\neach party (the “Disclosing Party”) may disclose and deliver to the other party (the “Receiving Party”) certain information about the Disclosing\nParty and its properties, employees, financial condition, assets, liabilities, businesses, operations and prospects. All such information furnished by\nthe Disclosing Party or its Representatives (as defined below), whether oral or written, and regardless of the manner in which it is furnished, is\nreferred to in this letter agreement as “Proprietary Information”. Proprietary Information includes any and all memoranda, notes, summaries,\nanalyses, extracts, compilations, studies or other documents or material whatsoever prepared by the Receiving Party or any of its Representatives\nbased on the Proprietary Information of the Disclosing Party. Proprietary Information does not include, however, information that (a) is or becomes\ngenerally available to or known by the public other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this\nletter agreement, (b) is or becomes available to the Receiving Party or its Representatives on a non-confidential basis prior to its disclosure by the\nDisclosing Party or its Representatives or (c) becomes available to the Receiving Party on a non-confidential basis from a person (other than the\nDisclosing Party or its Representatives) who is not known by Scotland to bound by a confidentiality agreement with the Disclosing Party. As used in\nthis letter agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and controlling persons and its and their\ndirectors, officers, employees, agents and advisors (including financial advisors, legal counsel and accountants) and (ii) the term “person” will be\nbroadly interpreted to include any corporation, company, partnership, other entity or individual.\nUnless otherwise agreed to in writing by the other party, each party agrees (a) except as required by law or regulatory authority and subject to\nthe fourth full paragraph on page 2, to keep all Proprietary Information of the other party confidential and not to disclose or reveal any such\nProprietary Information to any person other than its Representatives who are participating in the\nevaluation of the Proposed Transaction and (b) not to use any such Proprietary Information for any purpose other than solely to evaluate the\nProposed Transaction.\nExcept as required by law or regulatory authority, each party agrees not to disclose to any person (other than those of its Representatives who\nare participating in the evaluation of the Proposed Transaction) any information about the Proposed Transaction, or the terms or conditions or any\nother facts relating thereto, including the fact that discussions are taking place with respect thereto, or the status thereof, or the fact that Proprietary\nInformation has been made available to the other party or any of its Representatives. If such disclosure is required by law or regulatory authority,\nsuch party will use reasonable best efforts to notify and consult with the other party in advance of such disclosure.\nEach party hereby acknowledges that such party is aware, and that such party will advise its Representatives who are informed as to the\nmatters that are the subject of this letter agreement, that the United States securities laws prohibit any person who has received from an issuer\nmaterial, non-public information concerning the matters that are the subject of this letter agreement from purchasing or selling securities of such\nissuer or from communication of such information to any other person under circumstances in which it is reasonably foreseeable that such person is\nlikely to purchase or sell such securities.\nEach party will cause its Representatives to observe the terms of this letter agreement and will be responsible for any breach of or non-\ncompliance with the terms of this letter agreement by any of its Representatives.\nIn the event that the Receiving Party or any of its Representatives is requested or becomes legally compelled (by oral questions,\ninterrogatories, requests for information or documents, subpoenas, civil investigative demand or similar process) to disclose any of the Proprietary\nInformation of the Disclosing Party, the Receiving Party will, as soon as reasonably practicable, provide the Disclosing Party with telephonic notice\n(followed by prompt written notice) so that the Disclosing Party may seek a protective order or other appropriate remedy, including appeals, or\nwaive compliance with the provisions of this letter agreement. In the event that such protective order or other remedy is not obtained, or that the\nDisclosing Party waives compliance with the provisions of this letter agreement, the Receiving Party will furnish only that portion of the Proprietary\nInformation of the Disclosing Party or any documents or memoranda based thereon that is legally required, and otherwise exercise reasonable best\nefforts to obtain reliable assurance that confidential treatment will be accorded to such materials.\nEach party acknowledges that neither the other party nor any of its Representatives makes any express or implied representation or warranty as\nto the accuracy or completeness of any Proprietary Information of the other party, and such party agrees that none of such persons will have any\nliability to such party or any of its Representatives relating to or arising from the use of any Proprietary Information by such party or its\nRepresentatives or for any errors therein or omissions therefrom except as contained in an agreement relating to the Proposed Transaction, when and\nif executed and delivered by the applicable parties thereto. Each party also agrees that it is entitled to rely solely on such representations and\nwarranties regarding Proprietary Information of the other party as may be made to it in any such agreement relating to the Proposed Transaction,\nsubject to the terms and conditions of such agreement.\nIf either party notifies the other party that it does not wish to proceed with the Proposed Transaction, each party shall promptly destroy all\nProprietary Information of the other party in\n-2-\nits possession, and cause the destruction of all Proprietary Information of the other party in the possession of any of its Representatives, and will not\nretain any copies or other reproductions in whole or in part of such material. Such destruction referred to in this paragraph by each party will be\nsupervised by an authorized officer of such party. Such authorized officer will promptly certify such destruction to the other party in writing.\nEach party agrees that, in consideration of the other party furnishing Proprietary Information to the such party, for a period of 12 months from\nthe date of this letter agreement, such party’s employees who are participating in the evaluation of the Proposed Transaction will not, and such party\nwill cause such employees not to, solicit any employee of the other party with whom such employees had contact or who become known to such\nemployees in connection with the evaluation of the Proposed Transaction; provided, however, that the foregoing prohibition shall not apply to any\nemployee of the other party who voluntarily and independently solicits an offer of employment from such party or responds to a general\nadvertisement or similar solicitation program by such party.\nEach party agrees that money damages would not be a sufficient remedy for any breach of this letter agreement and that each party will be\nentitled to equitable relief, including injunction and specific performance, in the event of any breach of any provision of this letter agreement, in\naddition to all other remedies available at law or in equity, including monetary damages.\nIf is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as\na waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or\nprivilege hereunder.\nNothing contained in this letter agreement will be deemed to constitute, by implication or otherwise, any agreement or understanding to\nproceed with the Proposed Transaction or any other business arrangement or transaction. Each party understands and agrees that no contract or\nagreement providing for any transaction involving the parties shall be deemed to exist between the parties unless and until an agreement has been\nexecuted and delivered by the applicable parties thereto.\nThis letter agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts executed\nin and to be performed in the state without regard to conflicts of law principles. Each party hereby irrevocably and unconditionally submits to the\njurisdiction of any Delaware state or federal court sitting in Delaware in any action or proceeding arising out of or relating to this letter agreement, or\nfor recognition or enforcement of any judgment. Each party agrees that it will not institute or seek to institute any action or proceeding arising out of\nor relating to this letter agreement (other than an action or proceeding seeking enforcement of a judgment) in any forum other than a Delaware state\nor federal court sitting in Delaware. Each party hereby consents that legal process in any action or proceeding may be served upon such party by\nserving it by mail at the address set forth above for such party or at such other address as such party may designate in writing from time to time.\nThis letter agreement contains the entire agreement between Sprint and USU concerning the subject matter hereof, and no modifications of this\nletter agreement or waiver of the terms and conditions hereof will be binding upon Sprint or USU, unless approved in writing by each party.\n-3-\nThis letter agreement will terminate 12 months after the date first above written.\nPlease confirm your acceptance and agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter\nenclosed herewith.\nVery truly yours,\nSPRINT CORPORATION\nBy /s/ Charles R. Wunsch\nName: Charles R. Wunsch\nTitle: VP\nAccepted and Agreed\nas of the date first above written:\nUS UNWIRED INC.\nBy /s/ Jerry E. Vaughn\nName: Jerry E. Vaughn\nTitle: CFO\n-4-	EX-99.(D)(6) 12 dex99d6.htm MUTUAL CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nSPRINT CORPORATION\nCharles R. Wunsch Law, Corporate Transactions\nVice President 6200 Sprint Parkway\nOverland Park, Kansas 66251\nVoice 913 794 1496\nFax 913 523 9802\ncharles.wunsch@mail.sprint.com\n \nJuly 5, 2005\nUS Unwired Inc.\n901 Lakeshore Drive\nLake Charles, Louisiana 70601\nAttention: General Counsel\nMutual Confidentiality Agreement\nLadies and Gentlemen:\nIn connection with a possible transaction (the “Proposed Transaction”) between Sprint Corporation (“Sprint”) and US Unwired Inc. (“USU”),\neach party (the “Disclosing Party”) may disclose and deliver to the other party (the “Receiving Party™) certain information about the Disclosing\nParty and its properties, employees, financial condition, assets, liabilities, businesses, operations and prospects. All such information furnished by\nthe Disclosing Party or its Representatives (as defined below), whether oral or written, and regardless of the manner in which it is furnished, is\nreferred to in this letter agreement as “Proprietary Information”. Proprietary Information includes any and all memoranda, notes, summaries,\nanalyses, extracts, compilations, studies or other documents or material whatsoever prepared by the Receiving Party or any of its Representatives\nbased on the Proprietary Information of the Disclosing Party. Proprietary Information does not include, however, information that (a) is or becomes\ngenerally available to or known by the public other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this\nletter agreement, (b) is or becomes available to the Receiving Party or its Representatives on a non-confidential basis prior to its disclosure by the\nDisclosing Party or its Representatives or (c) becomes available to the Receiving Party on a non-confidential basis from a person (other than the\nDisclosing Party or its Representatives) who is not known by Scotland to bound by a confidentiality agreement with the Disclosing Party. As used in\nthis letter agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and controlling persons and its and their\ndirectors, officers, employees, agents and advisors (including financial advisors, legal counsel and accountants) and (ii) the term “person” will be\nbroadly interpreted to include any corporation, company, partnership, other entity or individual.\nUnless otherwise agreed to in writing by the other party, each party agrees (a) except as required by law or regulatory authority and subject to\nthe fourth full paragraph on page 2, to keep all Proprietary Information of the other party confidential and not to disclose or reveal any such\nProprietary Information to any person other than its Representatives who are participating in the\nevaluation of the Proposed Transaction and (b) not to use any such Proprietary Information for any purpose other than solely to evaluate the\nProposed Transaction.\nExcept as required by law or regulatory authority, each party agrees not to disclose to any person (other than those of its Representatives who\nare participating in the evaluation of the Proposed Transaction) any information about the Proposed Transaction, or the terms or conditions or any\nother facts relating thereto, including the fact that discussions are taking place with respect thereto, or the status thereof, or the fact that Proprietary\nInformation has been made available to the other party or any of its Representatives. If such disclosure is required by law or regulatory authority,\nsuch party will use reasonable best efforts to notify and consult with the other party in advance of such disclosure.\nEach party hereby acknowledges that such party is aware, and that such party will advise its Representatives who are informed as to the\nmatters that are the subject of this letter agreement, that the United States securities laws prohibit any person who has received from an issuer\nmaterial, non-public information concerning the matters that are the subject of this letter agreement from purchasing or selling securities of such\nissuer or from communication of such information to any other person under circumstances in which it is reasonably foreseeable that such person is\nlikely to purchase or sell such securities.\nEach party will cause its Representatives to observe the terms of this letter agreement and will be responsible for any breach of or non-\ncompliance with the terms of this letter agreement by any of its Representatives.\nIn the event that the Receiving Party or any of its Representatives is requested or becomes legally compelled (by oral questions,\ninterrogatories, requests for information or documents, subpoenas, civil investigative demand or similar process) to disclose any of the Proprietary\nInformation of the Disclosing Party, the Receiving Party will, as soon as reasonably practicable, provide the Disclosing Party with telephonic notice\n(followed by prompt written notice) so that the Disclosing Party may seek a protective order or other appropriate remedy, including appeals, or\nwaive compliance with the provisions of this letter agreement. In the event that such protective order or other remedy is not obtained, or that the\nDisclosing Party waives compliance with the provisions of this letter agreement, the Receiving Party will furnish only that portion of the Proprietary\nInformation of the Disclosing Party or any documents or memoranda based thereon that is legally required, and otherwise exercise reasonable best\nefforts to obtain reliable assurance that confidential treatment will be accorded to such materials.\nEach party acknowledges that neither the other party nor any of its Representatives makes any express or implied representation or warranty as\nto the accuracy or completeness of any Proprietary Information of the other party, and such party agrees that none of such persons will have any\nliability to such party or any of its Representatives relating to or arising from the use of any Proprietary Information by such party or its\nRepresentatives or for any errors therein or omissions therefrom except as contained in an agreement relating to the Proposed Transaction, when and\nif executed and delivered by the applicable parties thereto. Each party also agrees that it is entitled to rely solely on such representations and\nwarranties regarding Proprietary Information of the other party as may be made to it in any such agreement relating to the Proposed Transaction,\nsubject to the terms and conditions of such agreement.\nIf either party notifies the other party that it does not wish to proceed with the Proposed Transaction, each party shall promptly destroy all\nProprietary Information of the other party in\n-\nits possession, and cause the destruction of all Proprietary Information of the other party in the possession of any of its Representatives, and will not\nretain any copies or other reproductions in whole or in part of such material. Such destruction referred to in this paragraph by each party will be\nsupervised by an authorized officer of such party. Such authorized officer will promptly certify such destruction to the other party in writing.\nEach party agrees that, in consideration of the other party furnishing Proprietary Information to the such party, for a period of 12 months from\nthe date of this letter agreement, such party’s employees who are participating in the evaluation of the Proposed Transaction will not, and such party\nwill cause such employees not to, solicit any employee of the other party with whom such employees had contact or who become known to such\nemployees in connection with the evaluation of the Proposed Transaction; provided, however, that the foregoing prohibition shall not apply to any\nemployee of the other party who voluntarily and independently solicits an offer of employment from such party or responds to a general\nadvertisement or similar solicitation program by such party.\nEach party agrees that money damages would not be a sufficient remedy for any breach of this letter agreement and that each party will be\nentitled to equitable relief, including injunction and specific performance, in the event of any breach of any provision of this letter agreement, in\naddition to all other remedies available at law or in equity, including monetary damages.\nIf is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as\na waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or\nprivilege hereunder.\nNothing contained in this letter agreement will be deemed to constitute, by implication or otherwise, any agreement or understanding to\nproceed with the Proposed Transaction or any other business arrangement or transaction. Each party understands and agrees that no contract or\nagreement providing for any transaction involving the parties shall be deemed to exist between the parties unless and until an agreement has been\nexecuted and delivered by the applicable parties thereto.\nThis letter agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts executed\nin and to be performed in the state without regard to conflicts of law principles. Each party hereby irrevocably and unconditionally submits to the\njurisdiction of any Delaware state or federal court sitting in Delaware in any action or proceeding arising out of or relating to this letter agreement, or\nfor recognition or enforcement of any judgment. Each party agrees that it will not institute or seek to institute any action or proceeding arising out of\nor relating to this letter agreement (other than an action or proceeding seeking enforcement of a judgment) in any forum other than a Delaware state\nor federal court sitting in Delaware. Each party hereby consents that legal process in any action or proceeding may be served upon such party by\nserving it by mail at the address set forth above for such party or at such other address as such party may designate in writing from time to time.\nThis letter agreement contains the entire agreement between Sprint and USU concerning the subject matter hereof, and no modifications of this\nletter agreement or waiver of the terms and conditions hereof will be binding upon Sprint or USU, unless approved in writing by each party.\n_3-\nThis letter agreement will terminate 12 months after the date first above written.\nPlease confirm your acceptance and agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter\nenclosed herewith.\nVery truly yours,\nSPRINT CORPORATION\nBy /s/ Charles R. Wunsch\nName: Charles R. Wunsch\nTitle: VP\nAccepted and Agreed\nas of the date first above written:\nUS UNWIRED INC.\nBy /s/ Jerry E. Vaughn\nName: Jerry E. Vaughn\nTitle: CFO\n4-	EX-99.(D)(6) 12 dex99d6.htm MUTUAL CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nSPRINT CORPORATION\nCharles R. Wunsch\nLaw, Corporate Transactions\nVice President\n6200 Sprint Parkway\nOverland Park, Kansas 66251\nVoice 913 794 1496\nFax 913 523 9802\ncharles.wunsch@mail.sprint.com\nJuly 5, 2005\nUS Unwired Inc.\n901 Lakeshore Drive\nLake Charles, Louisiana 70601\nAttention: General Counsel\nMutual Confidentiality. Agreement\nLadies and Gentlemen:\nIn connection with a possible transaction (the "Proposed Transaction") between Sprint Corporation ("Sprint") and US Unwired Inc. ("USU"),\neach party (the "Disclosing Party") may disclose and deliver to the other party (the "Receiving Party") certain information about the Disclosing\nParty and its properties, employees, financial condition, assets, liabilities, businesses, operations and prospects. All such information furnished by\nthe Disclosing Party or its Representatives (as defined below), whether oral or written, and regardless of the manner in which it is furnished, is\nreferred to in this letter agreement as "Proprietary Information" Proprietary Information includes any and all memoranda, notes, summaries,\nanalyses, extracts, compilations, studies or other documents or material whatsoever prepared by the Receiving Party or any of its Representatives\nbased on the Proprietary Information of the Disclosing Party. Proprietary Information does not include, however, information that (a) is or becomes\ngenerally available to or known by the public other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this\nletter agreement, (b) is or becomes available to the Receiving Party or its Representatives on a non-confidential basis prior to its disclosure by the\nDisclosing Party or its Representatives or (c) becomes available to the Receiving Party on a non-confidential basis from a person (other than\nthe\nDisclosing Party or its Representatives) who is not known by Scotland to bound by a confidentiality agreement with the Disclosing Party. As used in\nthis letter agreement, (i) the term "Representative" means, as to any person, such person's affiliates and controlling persons and its and their\ndirectors, officers, employees, agents and advisors (including financial advisors, legal counsel and accountants) and (ii) the term "person" will be\nbroadly interpreted to include any corporation, company, partnership, other entity or individual.\nUnless otherwise agreed to in writing by the other party, each party agrees (a) except as required by law or regulatory authority and subject to\nthe fourth full paragraph on page 2, to keep all Proprietary Information of the other party confidential and not to disclose or reveal any such\nProprietary Information to any person other than its Representatives who are participating in the\nevaluation of the Proposed Transaction and (b) not to use any such Proprietary Information for any purpose other than solely to evaluate the\nProposed Transaction.\nExcept as required by law or regulatory authority, each party agrees not to disclose to any person (other than those of its Representatives who\nare participating in the evaluation of the Proposed Transaction) any information about the Proposed Transaction, or the terms or conditions or any\nother facts relating thereto, including the fact that discussions are taking place with respect thereto, or the status thereof, or the fact that Proprietary\nInformation has been made available to the other party or any of its Representatives. If such disclosure is required by law or regulatory authority,\nsuch party will use reasonable best efforts to notify and consult with the other party in advance of such disclosure.\nEach party hereby acknowledges that such party is aware, and that such party will advise its Representatives who are informed as to the\nmatters that are the subject of this letter agreement, that the United States securities laws prohibit any person who has received from an issuer\nmaterial, non-public information concerning the matters that are the subject of this letter agreement from purchasing or selling securities of such\nissuer or from communication of such information to any other person under circumstances in which it is reasonably foreseeable that such person is\nlikely to purchase or sell such securities.\nEach party will cause its Representatives to observe the terms of this letter agreement and will be responsible for any breach of or non-\ncompliance with the terms of this letter agreement by any of its Representatives.\nIn the event that the Receiving Party or any of its Representatives is requested or becomes legally compelled (by oral questions,\ninterrogatories, requests for information or documents, subpoenas, civil investigative demand or similar process) to disclose any of the Proprietary\nInformation of the Disclosing Party, the Receiving Party will, as soon as reasonably practicable, provide the Disclosing Party with telephonic notice\n(followed by prompt written notice) so that the Disclosing Party may seek a protective order or other appropriate remedy, including appeals, or\nwaive compliance with the provisions of this letter agreement. In the event that such protective order or other remedy is not obtained, or that the\nDisclosing\nParty\nwaives compliance with the provisions of this letter agreement, the Receiving Party will furnish only that portion of the Proprietary\nInformation of the Disclosing Party or any documents or memoranda based thereon that is legally required, and otherwise exercise reasonable best\nefforts to obtain reliable assurance that confidential treatment will be accorded to such materials.\nEach party acknowledges that neither the other party nor any of its Representatives makes any express or implied representation or warranty as\nto the accuracy or completeness of any Proprietary Information of the other party, and such party agrees that none of such persons will have any\nliability to such party or any of its Representatives relating to or arising from the use of any Proprietary Information by such party or its\nRepresentatives or for any errors therein or omissions therefrom except as contained in an agreement relating to the Proposed Transaction, when\nand\nif executed and delivered by the applicable parties thereto. Each party also agrees that it is entitled to rely solely on such representations and\nwarranties regarding Proprietary Information of the other party as may be made to it in any such agreement relating to the Proposed Transaction,\nsubject to the terms and conditions of such agreement.\nIf either party notifies the other party that it does not wish to proceed with the Proposed Transaction, each party shall promptly destroy all\nProprietary Information of the other party in\n-2-\nits possession, and cause the destruction of all Proprietary Information of the other party in the possession of any of its Representatives, and will not\nretain any copies or other reproductions in whole or in part of such material. Such destruction referred to in this paragraph by each party will\nbe\nsupervised by an authorized officer of such party. Such authorized officer will promptly certify such destruction to the other party in writing.\nEach party agrees that, in consideration of the other party furnishing Proprietary Information to the such party, for a period of 12 months from\nthe\ndate of this letter agreement, such party's employees who are participating in the evaluation of the Proposed Transaction will not, and such party\nwill cause such employees not to, solicit any employee of the other party with whom such employees had contact or who become known to such\nemployees in connection with the evaluation of the Proposed Transaction; provided, however, that the foregoing prohibition shall not apply to\nany\nemployee of the other party who voluntarily and independently solicits an offer of employment from such party or responds to a general\nadvertisement or similar solicitation program by such party.\nEach party agrees that money damages would not be a sufficient remedy for any breach of this letter agreement and that each party will be\nentitled to equitable relief, including injunction and specific performance, in the event of any breach of any provision of this letter agreement, in\naddition to all other remedies available at law or in equity, including monetary damages.\nIf is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as\na waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power\nor\nprivilege hereunder.\nNothing contained in this letter agreement will be deemed to constitute, by implication or otherwise, any agreement or understanding to\nproceed with the Proposed Transaction or any other business arrangement or transaction Each party understands and agrees that no contract or\nagreement providing for any transaction involving the parties shall be deemed to exist between the parties unless and until an agreement has been\nexecuted and delivered by the applicable parties thereto.\nThis letter agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts executed\nin and to be performed in the state without regard to conflicts of law principles. Each party hereby irrevocably and unconditionally submits to the\njurisdiction of any Delaware state or federal court sitting in Delaware in any action or proceeding arising out of or relating to this letter agreement,\nor\nfor recognition or enforcement of any judgment. Each party agrees that it will not institute or seek to institute any action or proceeding arising out\nof\nor relating to this letter agreement (other than an action or proceeding seeking enforcement of a judgment) in any forum other than a Delaware state\nor federal court sitting in Delaware. Each party hereby consents that legal process in any action or proceeding may be served upon such party by\nserving it by mail at the address set forth above for such party or at such other address as such party may designate in writing from time to time.\nThis letter agreement contains the entire agreement between Sprint and USU concerning the subject matter hereof, and no modifications of this\nletter agreement or waiver of the terms and conditions hereof will be binding upon Sprint or USU, unless approved in writing by each party.\n-3-\nThis letter agreement will terminate 12 months after the date first above written.\nPlease confirm your acceptance and agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter\nenclosed herewith.\nVery truly yours,\nSPRINT CORPORATION\nBy /s/ Charles R. Wunsch\nName: Charles R. Wunsch\nTitle: VP\nAccepted and Agreed\nas of the date first above written:\nUS UNWIRED INC.\nBy /s/ Jerry E. Vaughn\nName: Jerry E. Vaughn\nTitle: CFO\n-4-	EX-99.(D)(6) 12 dex99d6.htm MUTUAL CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nSPRINT CORPORATION\nCharles R. Wunsch\nLaw, Corporate Transactions\nVice President\n6200 Sprint Parkway\nOverland Park, Kansas 66251\nVoice 913 794 1496\nFax 913 523 9802\ncharles.wunsch@mail.sprint.com\nJuly 5, 2005\nUS Unwired Inc.\n901 Lakeshore Drive\nLake Charles, Louisiana 70601\nAttention: General Counsel\nMutual Confidentiality Agreement\nLadies and Gentlemen:\nIn connection with a possible transaction (the “Proposed Transaction”) between Sprint Corporation (“Sprint”) and US Unwired Inc. (“USU”),\neach party (the “Disclosing Party”) may disclose and deliver to the other party (the “Receiving Party”) certain information about the Disclosing\nParty and its properties, employees, financial condition, assets, liabilities, businesses, operations and prospects. All such information furnished by\nthe Disclosing Party or its Representatives (as defined below), whether oral or written, and regardless of the manner in which it is furnished, is\nreferred to in this letter agreement as “Proprietary Information”. Proprietary Information includes any and all memoranda, notes, summaries,\nanalyses, extracts, compilations, studies or other documents or material whatsoever prepared by the Receiving Party or any of its Representatives\nbased on the Proprietary Information of the Disclosing Party. Proprietary Information does not include, however, information that (a) is or becomes\ngenerally available to or known by the public other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this\nletter agreement, (b) is or becomes available to the Receiving Party or its Representatives on a non-confidential basis prior to its disclosure by the\nDisclosing Party or its Representatives or (c) becomes available to the Receiving Party on a non-confidential basis from a person (other than the\nDisclosing Party or its Representatives) who is not known by Scotland to bound by a confidentiality agreement with the Disclosing Party. As used in\nthis letter agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and controlling persons and its and their\ndirectors, officers, employees, agents and advisors (including financial advisors, legal counsel and accountants) and (ii) the term “person” will be\nbroadly interpreted to include any corporation, company, partnership, other entity or individual.\nUnless otherwise agreed to in writing by the other party, each party agrees (a) except as required by law or regulatory authority and subject to\nthe fourth full paragraph on page 2, to keep all Proprietary Information of the other party confidential and not to disclose or reveal any such\nProprietary Information to any person other than its Representatives who are participating in the\nevaluation of the Proposed Transaction and (b) not to use any such Proprietary Information for any purpose other than solely to evaluate the\nProposed Transaction.\nExcept as required by law or regulatory authority, each party agrees not to disclose to any person (other than those of its Representatives who\nare participating in the evaluation of the Proposed Transaction) any information about the Proposed Transaction, or the terms or conditions or any\nother facts relating thereto, including the fact that discussions are taking place with respect thereto, or the status thereof, or the fact that Proprietary\nInformation has been made available to the other party or any of its Representatives. If such disclosure is required by law or regulatory authority,\nsuch party will use reasonable best efforts to notify and consult with the other party in advance of such disclosure.\nEach party hereby acknowledges that such party is aware, and that such party will advise its Representatives who are informed as to the\nmatters that are the subject of this letter agreement, that the United States securities laws prohibit any person who has received from an issuer\nmaterial, non-public information concerning the matters that are the subject of this letter agreement from purchasing or selling securities of such\nissuer or from communication of such information to any other person under circumstances in which it is reasonably foreseeable that such person is\nlikely to purchase or sell such securities.\nEach party will cause its Representatives to observe the terms of this letter agreement and will be responsible for any breach of or non-\ncompliance with the terms of this letter agreement by any of its Representatives.\nIn the event that the Receiving Party or any of its Representatives is requested or becomes legally compelled (by oral questions,\ninterrogatories, requests for information or documents, subpoenas, civil investigative demand or similar process) to disclose any of the Proprietary\nInformation of the Disclosing Party, the Receiving Party will, as soon as reasonably practicable, provide the Disclosing Party with telephonic notice\n(followed by prompt written notice) so that the Disclosing Party may seek a protective order or other appropriate remedy, including appeals, or\nwaive compliance with the provisions of this letter agreement. In the event that such protective order or other remedy is not obtained, or that the\nDisclosing Party waives compliance with the provisions of this letter agreement, the Receiving Party will furnish only that portion of the Proprietary\nInformation of the Disclosing Party or any documents or memoranda based thereon that is legally required, and otherwise exercise reasonable best\nefforts to obtain reliable assurance that confidential treatment will be accorded to such materials.\nEach party acknowledges that neither the other party nor any of its Representatives makes any express or implied representation or warranty as\nto the accuracy or completeness of any Proprietary Information of the other party, and such party agrees that none of such persons will have any\nliability to such party or any of its Representatives relating to or arising from the use of any Proprietary Information by such party or its\nRepresentatives or for any errors therein or omissions therefrom except as contained in an agreement relating to the Proposed Transaction, when and\nif executed and delivered by the applicable parties thereto. Each party also agrees that it is entitled to rely solely on such representations and\nwarranties regarding Proprietary Information of the other party as may be made to it in any such agreement relating to the Proposed Transaction,\nsubject to the terms and conditions of such agreement.\nIf either party notifies the other party that it does not wish to proceed with the Proposed Transaction, each party shall promptly destroy all\nProprietary Information of the other party in\n-2-\nits possession, and cause the destruction of all Proprietary Information of the other party in the possession of any of its Representatives, and will not\nretain any copies or other reproductions in whole or in part of such material. Such destruction referred to in this paragraph by each party will be\nsupervised by an authorized officer of such party. Such authorized officer will promptly certify such destruction to the other party in writing.\nEach party agrees that, in consideration of the other party furnishing Proprietary Information to the such party, for a period of 12 months from\nthe date of this letter agreement, such party’s employees who are participating in the evaluation of the Proposed Transaction will not, and such party\nwill cause such employees not to, solicit any employee of the other party with whom such employees had contact or who become known to such\nemployees in connection with the evaluation of the Proposed Transaction; provided, however, that the foregoing prohibition shall not apply to any\nemployee of the other party who voluntarily and independently solicits an offer of employment from such party or responds to a general\nadvertisement or similar solicitation program by such party.\nEach party agrees that money damages would not be a sufficient remedy for any breach of this letter agreement and that each party will be\nentitled to equitable relief, including injunction and specific performance, in the event of any breach of any provision of this letter agreement, in\naddition to all other remedies available at law or in equity, including monetary damages.\nIf is further understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder will operate as\na waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or\nprivilege hereunder.\nNothing contained in this letter agreement will be deemed to constitute, by implication or otherwise, any agreement or understanding to\nproceed with the Proposed Transaction or any other business arrangement or transaction. Each party understands and agrees that no contract or\nagreement providing for any transaction involving the parties shall be deemed to exist between the parties unless and until an agreement has been\nexecuted and delivered by the applicable parties thereto.\nThis letter agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts executed\nin and to be performed in the state without regard to conflicts of law principles. Each party hereby irrevocably and unconditionally submits to the\njurisdiction of any Delaware state or federal court sitting in Delaware in any action or proceeding arising out of or relating to this letter agreement, or\nfor recognition or enforcement of any judgment. Each party agrees that it will not institute or seek to institute any action or proceeding arising out of\nor relating to this letter agreement (other than an action or proceeding seeking enforcement of a judgment) in any forum other than a Delaware state\nor federal court sitting in Delaware. Each party hereby consents that legal process in any action or proceeding may be served upon such party by\nserving it by mail at the address set forth above for such party or at such other address as such party may designate in writing from time to time.\nThis letter agreement contains the entire agreement between Sprint and USU concerning the subject matter hereof, and no modifications of this\nletter agreement or waiver of the terms and conditions hereof will be binding upon Sprint or USU, unless approved in writing by each party.\n-3-\nThis letter agreement will terminate 12 months after the date first above written.\nPlease confirm your acceptance and agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter\nenclosed herewith.\nVery truly yours,\nSPRINT CORPORATION\nBy /s/ Charles R. Wunsch\nName: Charles R. Wunsch\nTitle: VP\nAccepted and Agreed\nas of the date first above written:\nUS UNWIRED INC.\nBy /s/ Jerry E. Vaughn\nName: Jerry E. Vaughn\nTitle: CFO\n-4-
+7523fc8effce074d5332696808bb7fd4.pdf	jurisdiction party	EXHIBIT A\nWALGREENS BOOTS ALLIANCE, INC. NON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nThis Exhibit (the "Non-Compete Agreement") forms a part of the Restricted Stock Unit Award\nAgreement covering Restricted Stock Units awarded to an employee ("Employee" or "I") of Walgreens Boots\nAlliance, Inc. or an affiliate thereof, on behalf of itself, its affiliates, subsidiaries, and successors (collectively\nreferred to as the "Company").\nWHEREAS, the Company develops and/or uses valuable business, technical, proprietary, customer\nand patient information it protects by limiting its disclosure and by keeping it secret or confidential;\nWHEREAS, Employee acknowledges that during the course of employment, he or she has or will\nreceive, contribute, or develop such Confidential Information and Trade Secrets (as defined below); and\nWHEREAS, the Company desires to protect from its competitors such Confidential Information and\nTrade Secrets and also desires to protect its legitimate business interests and goodwill in maintaining its\nemployee and customer relationships.\nNOW THEREFORE, in consideration of the Restricted Stock Units issued to Employee pursuant to the\nAgreement to which this is attached as Exhibit A and for other good and valuable consideration, including but\nnot limited to employment or continued employment, the specialized knowledge, skill and training that the\nCompany provides Employee, the goodwill that Employee develops with customers on behalf of the\nCompany, Employee agrees to be bound by the terms of this Non-Compete Agreement as follows:\n1.Confidentiality.\n(a)At all times during and after the termination of my employment with the Company, I will not,\nwithout the Company’s prior written permission, directly or indirectly for any purpose other than\nperformance of my duties for the Company, utilize or disclose to anyone outside of the Company any\nTrade Secrets (defined in subparagraph 1(a)(i)) or other Confidential Information (defined in\nsubparagraph 1(a)(ii)) or any information received by the Company in confidence from or about third\nparties, as long as such matters remain Trade Secrets or otherwise confidential.\n(OGRSURT2020)\n(i)For purposes of this Non-Compete Agreement, “Trade Secrets” means a form of\nintellectual property that are protectable under applicable state and/or Federal law, including\nthe Uniform Trade Secrets Act (as amended and adapted by the states) and the Federal\nDefend Trade Secrets Act of 2016 (the “DTSA”). They include all tangible and intangible (e.g.,\nelectronic) forms and types of information that is held and kept confidential by the Company\nand is not generally known outside of the Company, including but not limited to information\nabout: the Company’s financial, business, scientific, technical, economic, or engineering\ninformation, including patterns, plans, compilations, program devices, formulas, designs,\nprototypes, methods, techniques, processes, procedures, programs or codes, and may in\nparticular include such things as pricing information, business records, software programs,\nalgorithms, inventions, patent applications, and designs and processes not known outside the\nCompany.\n(ii)For purposes of this Non-Compete Agreement, “Confidential Information” means\nTrade Secrets and, more broadly, any other tangible and intangible (e.g ., electronic) forms and\ntypes of information that are held and kept confidential by the Company and are not generally\nknown outside the Company, and which relates to the actual or anticipated business of the\nCompany or the Company’s actual or prospective vendors or clients. Confidential Information\nshall not be considered generally known to the public if is revealed improperly to the public by\nme or others without the Company’s express written consent and/or in violation of an obligation\nof confidentiality to the Company. Examples of Confidential Information include, but are not\nlimited to: customer, referral source, supplier and contractor identification and contacts; special\ncontract terms; pricing and margins; business, marketing and customer plans and strategies;\nfinancial data; company created (or licensed) techniques; technical know-how; research,\ndevelopment and production information; processes, prototypes, software, patent applications\nand plans, projections, proposals, discussion guides, and/or personal or performance\ninformation about employees.\n(b)I understand that this obligation of non-disclosure shall last so long as the information\nremains confidential. I, however, understand that, if I live and work primarily in Wisconsin, Virginia, or\nany other state requiring a temporal limit on non-disclosure clauses, Confidential Information shall be\nprotected for two (2) years following termination of my employment (for any reason). I also understand\nthat Trade Secrets are protected by statute and are not subject to any time limits. I also agree to\ncontact the Company before using, disclosing, or distributing any Confidential Information or Trade\nSecrets if I have any questions about whether such information is protected information.\n(c)The restrictions set forth in this paragraph are in addition to and not in lieu of any obligations\nI have by law with respect to the Company’s Confidential Information, including any obligations I may\nowe under the DTSA and any applicable state statutes. Nothing herein shall prohibit me from divulging\nevidence of criminal wrongdoing to law enforcement or prohibit me from disclosing Confidential\nInformation or Trade Secrets if compelled by order of court or an agency of competent jurisdiction or\nas required by law; however, I shall promptly inform the Company of any such situations and shall take\nreasonable steps to prevent disclosure of Confidential Information or Trade Secrets until the Company\nhas been informed of such required disclosure and has had a reasonable opportunity to seek a\nprotective order. Pursuant to the DTSA, I understand that an individual may not be held criminally or\ncivilly liable under any federal or state trade secret law for the disclosure of a Trade Secret that: (A) is\nmade (i) in confidence to a federal, state or local government official, either directly or indirectly, or to\nan attorney, and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or\n(B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is\nmade under seal. Additionally, I understand that an individual who files a lawsuit for retaliation by an\nemployer for reporting a suspected violation of law may disclose the Trade Secret to his or her\nattorney and use the Trade Secret information in the court proceeding, so long as any document\ncontaining the Trade Secret is filed under seal and the individual does not disclose the Trade Secret,\nexcept pursuant to court order. Nothing in this Non-Compete Agreement\n(OGRSURT2020)\nis intended to conflict with the DTSA or create liability for disclosures of Trade Secrets that are\nexpressly allowed by DTSA.\n2.Non-Competition. I agree that during my employment with the Company and for twelve (12)\nmonths after the termination of my employment (for any reason), I will not, directly or indirectly have\nResponsibilities with respect to any Competing Business Line. As set forth in paragraph 9(a) below, I\nunderstand that the restrictions in this paragraph apply no matter whether my employment is\nterminated by me or the Company and no matter whether that termination is voluntary or involuntary.\nThese restrictions shall not apply to passive investments of less than five percent (5%) ownership\ninterest in any entity. For purposes of this Non-Compete Agreement, “Responsibilities” means the\nsame or similar material responsibilities I performed for the Company during the two (2) years prior to\nmy last day of employment with the Company and within the same geographic scope, or portion\nthereof, where I performed those responsibilities for the Company. For purposes of this Non-Compete\nAgreement, “Competing Business Line” means any business that is in competition with any\nbusiness engaged in by the Company and for which I had Responsibilities during the two (2) years\nprior to my last day of employment with the Company. Competing Business Line shall also include\nbusinesses or business lines that may not be directly competitive with the Company in most respects\n(such as pharmacy benefit managers), but only to the extent I am engaged by any such business in a\nrole: (a) that involves my performing Responsibilities for Competing Products or Services; or (b) where\nI would be called upon to inevitably rely upon or disclose Confidential Information and such reliance or\ndisclosure would competitively harm the Company. For purposes of this Non-Compete Agreement,\n“Competing Products or Services” means products or services that are competitive with products or\nservices offered by, developed by, designed by or distributed by the Company during the two (2) years\nprior to my last day of employment with the Company.\n3. Non-Solicitation. I agree that during my employment with the Company and for two (2) years after\nthe termination of my employment from the Company (for any reason):\n(a) I will not directly or indirectly, solicit any Restricted Customer for purposes of providing\nCompeting Products or Services, or offer, provide or sell Competing Products or Services to any\nRestricted Customer. For purposes of this Non-Compete Agreement, “Restricted Customer” means\nany person, company or entity that was a customer, vendor, supplier or referral source of the\nCompany and with which I had direct contact for purposes of performing responsibilities for the\nCompany or for which I had supervisory responsibilities on behalf of the Company, in either case at\nany time during the two (2) years prior to my last day of employment with the Company. To the extent\npermitted by applicable law, “Restricted Customer” also means any prospective customer(s),\nvendor(s), supplier(s) or referral source(s) with which I had business contact on behalf of the Company\nin the twelve (12) months prior to my last day of employment with the Company; and\n(b) I will not, nor will I assist any third party to, directly or indirectly (i) raid, solicit, or attempt to\npersuade any then-current employee of the Company with whom I currently work or with whom I had\ndirect contact work during the two years prior to my last day of employment with the Company, and\nwho possesses or had access to Confidential Information of the Company, to leave the employ of the\nCompany; (ii) interfere with the performance by any such employee of his/her duties for the Company;\nand/or (iii) communicate with any such employee for the purposes described in items (i) and (ii) in this\nsubparagraph 3(b).\n4. Non-Inducement. I will not directly or indirectly assist or encourage any person or entity in carrying\nout or conducting any activity that would be prohibited by this Non-Compete Agreement if such activity were\ncarried out or conducted by me.\n5. Non-Disparagement. During my employment with the Company and thereafter, I agree not to\nmake negative comments or otherwise disparage the Company or any of its officers, directors, employees,\n(OGRSURT2020)\nshareholders, members, agents or products. The foregoing shall not be violated by truthful statements in\nresponse to legal process, required governmental testimony or filings, or administrative or arbitral proceedings\n(including, without limitation, depositions in connection with such proceedings); and the foregoing shall not\napply to any claims for harassment or discrimination to the extent so restricted by applicable state law.\n6.\nIntellectual Property. The term “Intellectual Property” shall mean all trade secrets, ideas,\ninventions, designs, developments, devices, software, computer programs, methods and processes (whether\nor not patented or patentable, reduced to practice or included in the Confidential Information) and all patents\nand patent applications related thereto, all copyrights, copyrightable works and mask works (whether or not\nincluded in the Confidential Information) and all registrations and applications for registration related thereto,\nall Confidential Information, and all other proprietary rights contributed to, or conceived or created by, or\nreduced to practice by Employee or anyone acting on his/her behalf (whether alone or jointly with others) at\nany time from the beginning of Employee’s employment with the Company to the termination of that\nemployment plus ninety (90) days, that (i) relate to the business or to the actual or anticipated research or\ndevelopment of the Company; (ii) result from any services that Employee or anyone acting on its behalf\nperform for the Company; or (iii) are created using the equipment, supplies or facilities of the Company or any\nConfidential Information.\na.Ownership. All Intellectual Property is, shall be and shall remain the exclusive property of the\nCompany. Employee hereby assigns to the Company all right, title and interest, if any, in and to the\nIntellectual Property; provided, however, that, when applicable, the Company shall own the copyrights\nin all copyrightable works included in the Intellectual Property pursuant to the “work-made-for-hire”\ndoctrine (rather than by assignment), as such term is defined in the 1976 Copyright Act. All Intellectual\nProperty shall be owned by the Company irrespective of any copyright notices or confidentiality\nlegends to the contrary that may be placed on such works by Employee or by others. Employee shall\nensure that all copyright notices and confidentiality legends on all work product authored by Employee\nor anyone acting on his/her behalf shall conform to the Company’s practices and shall specify the\nCompany as the owner of the work. The Company hereby provides notice to Employee that the\nobligation to assign does not apply to an invention for which no equipment, supplies, facility, or Trade\nSecrets of the Company was used and which was developed entirely on the Employee’s own time,\nunless (i) the invention relates (1) to the business of the Company, or (2) to the Company’s actual or\ndemonstrably anticipated research or development, or (ii) the invention results from any work\nperformed by Employee for the Company.\nb.Keep Records. Employee shall keep and maintain, or cause to be kept and maintained by\nanyone acting on his/her behalf, adequate and current written records of all Intellectual Property in the\nform of notes, sketches, drawings, computer files, reports or other documents relating thereto. Such\nrecords shall be and shall remain the exclusive property of the Company and shall be available to the\nCompany at all times during my employment with the Company.\nc.Assistance. Employee shall supply all assistance requested in securing for the Company’s\nbenefit any patent, copyright, trademark, service mark, license, right or other evidence of ownership of\nany such Intellectual Property, and will provide full information regarding any such item and execute all\nappropriate documentation prepared by Company in applying or otherwise registering, in the\nCompany’s name, all rights to any such item or the defense and protection of such Intellectual\nProperty.\nd.Prior Inventions. Employee has disclosed to the Company any continuing obligations to any\nthird party with respect to Intellectual Property. Employee claims no rights to any inventions created\nprior to his/her employment for which a patent application has not previously been filed, unless he/she\nhas described them in detail on a schedule attached to this Non-Compete Agreement.\n(OGRSURT2020)\ne.Trade Secret Provisions. The provisions in paragraph 1 of this Non-Compete Agreement with\nregard to Trade Secrets and the DTSA shall apply as well in the context of the parties’ Intellectual\nProperty rights and obligations.\n7. Return of Company Property. I agree that all documents and data accessible to me during my\nemployment with the Company, including Confidential Information and Trade Secrets, regardless of format\n(electronic or hard copy), including but not limited to any Company computer, monitor, printer equipment,\nexternal drives, wireless access equipment, telecom equipment and systems (“Company Equipment”), are\nand remain the sole and exclusive property of the Company and/or its clients, and must be returned to the\nCompany upon separation or upon demand by the Company. I further agree that I will provide passwords to\naccess such Company Equipment and I will not print, retain, copy, destroy, modify or erase Company U.S .\ndata on Company Equipment or otherwise wipe Company Equipment prior to returning the Company\nEquipment.\n8. Consideration and Acknowledgments. I acknowledge and agree that the covenants described in\nthis Non-Compete Agreement are essential terms, and the underlying Restricted Stock Units would not be\nprovided by the Company in the absence of these covenants. I further acknowledge that these covenants are\nsupported by adequate consideration as set forth in this Non-Compete Agreement and are not in conflict with\nany public interest. I further acknowledge and agree that I fully understand these covenants, have had full and\ncomplete opportunity to discuss and resolve any ambiguities or uncertainties regarding these covenants\nbefore signing this Non-Compete Agreement, and have voluntarily agreed to comply with these covenants for\ntheir stated terms. I further acknowledge and agree that these covenants are reasonable and enforceable in\nall respects.\n9. Enforceability; General Provisions.\n(a) I agree that the restrictions contained in this Non-Compete Agreement are reasonable\nand necessary to protect the Company’s legitimate business interests and that full compliance with the\nterms of this Non-Compete Agreement will not prevent me from earning a livelihood following the\ntermination of my employment, and that these covenants do not place undue restraint on me. I further\nunderstand that the restrictions in this Non-Compete Agreement apply no matter whether my\nemployment is terminated by me or the Company and no matter whether that termination is voluntary\nor involuntary.\n(b) Because the Company’s current base of operations is in Illinois and my connections\nthereto, (i) this Non-Compete Agreement shall be governed by and construed in accordance with the\nlaws of the State of Illinois, where this Non-Compete Agreement is entered into, without giving effect to\nany conflict of law provisions, and (ii) I consent to personal jurisdiction and the exclusive jurisdiction of\nthe state and federal courts of Illinois with respect to any claim, dispute or declaration arising out of this\nNon-Compete Agreement.\n(c) In the event of a breach or a threatened breach of this Non-Compete Agreement, I\nacknowledge that the Company will face irreparable injury which may be difficult to calculate in dollar\nterms and that the Company shall be entitled, in addition to all remedies otherwise available in law or\nin equity, to temporary restraining orders and preliminary and final injunctions enjoining such breach or\nthreatened breach in any court of competent jurisdiction without the necessity of posting a surety bond,\nas well as to obtain an equitable accounting of all profits or benefits arising out of any violation of this\nNon-Compete Agreement.\n(d)\nI agree that if a court determines that any of the provisions in this Non-Compete\nAgreement is unenforceable or unreasonable in duration, territory, or scope, then that court shall\nmodify those provisions so they are reasonable and enforceable, and enforce those provisions as\nmodified.\n(OGRSURT2020)\n(e) If any one or more provisions (including paragraphs, subparagraphs and terms) of this\nNon-Compete Agreement or its application is determined to be invalid, illegal, or unenforceable to any\nextent or for any reason by a court of competent jurisdiction, I agree that the remaining provisions\n(including paragraphs, subparagraphs and terms) of this Non-Compete Agreement will still be valid\nand the provision declared to be invalid or illegal or unenforceable will be considered to be severed\nand deleted from the rest of this Non-Compete Agreement. I further agree that if any court of\ncompetent jurisdiction finds any of the restrictions set forth in this Non-Compete Agreement to be\noverly broad and unenforceable, the restriction shall be interpreted to extend only over the maximum\ntime period, geographic area, or range of activities or clients that such court deems enforceable\n(f)\nNotwithstanding the foregoing provisions of this Non-Compete Agreement, the\nnon-competition provisions of paragraph 2 above shall not restrict Employee from performing legal\nservices as a licensed attorney for a Competing Business to the extent that the attorney licensure\nrequirements in the applicable jurisdiction do not permit Employee to agree to the otherwise applicable\nrestrictions of paragraph 2.\n(g) Waiver of any of the provisions of this Non-Compete Agreement by the Company in any\nparticular instance shall not be deemed to be a waiver of any provision in any other instance and/or of\nthe Company’s other rights at law or under this Non-Compete Agreement.\n(h) I agree that the Company may assign this Non-Compete Agreement to its successors and\nassigns and that any such successor or assign may stand in the Company’s stead for purposes of\nenforcing this Non-Compete Agreement.\n(i)\nI agree to reimburse the Company for all attorneys’ fees, costs, and expenses that it\nreasonably incurs in connection with enforcing its rights and remedies under this Non-Compete\nAgreement, but only to the extent the Company is ultimately the prevailing party in the applicable legal\nproceedings.\n(j) I understand and agree that, where allowed by applicable law, the time for my obligations\nset out in paragraphs 2 - 6 shall be extended for period of non-compliance up to an additional two (2)\nyears following my last day of employment with the Company (for any reason).\n(k) I fully understand my obligations in this Non-Compete Agreement, have had full and\ncomplete opportunity to discuss and resolve any ambiguities or uncertainties regarding these\ncovenants before signing this Non-Compete Agreement, and have voluntarily agreed to comply with\nthese covenants for their stated terms.\n(l) I agree that all non-competition, non-solicitation, non-disclosure and use, non-recruiting,\nand disclosure obligations in this Non-Compete Agreement shall survive any termination of this\nNon-Compete Agreement and extend to the proscribed periods following my last day of employment\nwith the Company (for any reason) and no dispute regarding any other provisions of this Non-Compete\nAgreement or regarding my employment or the termination of my employment shall prevent the\noperation and enforcement of these obligations.\n(m) I understand that nothing in this Non-Compete Agreement, including the non-disclosure\nand non-disparagement provisions, limit my ability to file a charge or complaint with the Equal\nEmployment Opportunity Commission, Department of Labor, National Labor Relations Board,\nOccupational Safety and Health Administration, Securities and Exchange Commission or any other\nfederal, state or local governmental agency or commission. I also understand that this Non-Compete\nAgreement does not limit my ability to communicate with any government agencies or otherwise\nparticipate in any investigation or proceeding that may be conducted by any government agency,\nincluding providing documents or other information, without notice to the Company. Finally, I\n(OGRSURT2020)\nunderstand that nothing in this Non-Compete Agreement is intended to restrict my legally-protected\nright to discuss wages, hours or other working condition with co-workers, or in any way limit my rights\nunder the National Labor Relations Act or any whistleblower act.\n10. Relationship of Parties. I acknowledge that my relationship with the Company is “terminable at\nwill” by either party and that the Company or I can terminate the relationship with or without cause and without\nfollowing any specific procedures. Nothing contained in this Non-Compete Agreement is intended to or shall\nbe relied upon to alter the “terminable at will” relationship between the parties. I agree that my obligations in\nthis Non-Compete Agreement shall survive the termination of my employment from the Company for any\nreason and shall be binding upon my successors, heirs, executors and representatives.\n11. Modifications and Other Agreements. I agree that the terms of this Non-Compete Agreement\nmay not be modified except by a written agreement signed by both me and the Company. This Non-Compete\nAgreement shall not supersede any other restrictive covenants to which I may be subject under an\nemployment contract, benefit program or otherwise, such that the Company may enforce the terms of any and\nall restrictive covenants to which I am subject. The obligations herein are in addition to and do not limit any\nobligations arising under applicable statutes and common law.\n12. State and Commonwealth Law Modifications. I agree that if I primarily reside and work in\nCalifornia, Massachusetts, Puerto Rico, South Carolina, Washington or Wisconsin, I am subject to the\nmodifications to this Non-Compete Agreement set forth in Exhibit A-1 applying to such state and to the extent\nsuch state law applies.\n13. Notification. I agree that in the event I am offered employment at any time in the future with any\nentity that may be considered a Competing Business Line, I shall immediately notify such Competing\nBusiness of the existence and terms of this Non-Compete Agreement. I also understand and agree that the\nCompany may notify anyone attempting to or later employing me of the existence and provisions of this\nNon-Compete Agreement.\n*** *** *** *** ***\nBy clicking the acceptance box for this grant agreement, I acknowledge receipt of the Restricted Stock\nUnit Award Agreement to which this Non-Compete Agreement is attached as Exhibit A, and I agree to the\nterms and conditions expressed in this Non-Compete Agreement, including the modifications set forth in\nExhibit A-1, as applicable.	EXHIBIT A\nWALGREENS BOOTS ALLIANCE, INC. NON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nThis Exhibit (the "Non-Compete Agreement") forms a part of the Restricted Stock Unit Award\nAgreement covering Restricted Stock Units awarded to an employee ("Employee" or ”I") ofWaIgreens Boots\nAlliance, Inc. or an affiliate thereof, on behalf of itself, its affiliates, subsidiaries, and successors (collectively\nreferred to as the "Compa ny").\nWHEREAS, the Company develops and/or uses valuable business, technical, proprietary, customer\nand patient information it protects by limiting its disclosure and by keeping itsecretor confidential;\nWHEREAS, Employee acknowledges that during the course of employment, he or she has or will\nreceive, contribute, or develop such Confidential Information and Trade Secrets (as defined below); and\nWHEREAS, the Company desires to protect from its competitors such Confidential Information and\nTrade Secrets and also desires to protect its legitimate business interests and goodwill in maintaining its\nemployee and customer relationships.\nNOW THEREFORE, in consideration ofthe Restricted Stock Units issued to Employee pursuant to the\nAgreement to which this is attached as ExhibitA and for other good and valuable consideration, including but\nnot limited to employment or continued employment, the specialized knowledge, skill and training that the\nCompany provides Employee, the goodwill that Employee develops with customers on behalf of the\nCompany, Employee agrees to be bound by the terms of this Non-Compete Agreementas follows:\n1.Confidentiality.\n(a)At all times during and after the termination of my employment with the Company, I will not,\nwithout the Company’s prior written permission, directly or indirectly for any purpose other than\nperformance of my duties for the Company, utilize or disclose to anyone outside of the Company any\nTrade Secrets (defined in subparagraph 1(a)(i)) or other Confidential Information (defined in\nsubparagraph 1(a)(ii)) or any information received by the Company in confidence from or about third\nparties, as long as such matters remain Trade Secrets or otherwise confidential.\n(OGRSURTZOZO)\n(i)For purposes of this Non-Compete Agreement, 'Trade Secrets” means a form of\nintellectual property that are protectable under applicable state and/or Federal law, including\nthe Uniform Trade Secrets Act (as amended and adapted by the states) and the Federal\nDefend Trade Secrets Act of 2016 (the "DTSA”). They include all tangible and intangible (e.g.,\nelectronic) forms and types of information that is held and kept confidential by the Company\nand is not generally known outside of the Company, including but not limited to information\nabout: the Company’s financial, business, scientific, technical, economic, or engineering\ninformation, including patterns, plans, compilations, program devices, formulas, designs,\nprototypes, methods, techniques, processes, procedures, programs or codes, and may in\nparticular include such things as pricing information, business records, software programs,\nalgorithms, inventions, patent applications, and designs and processes not known outside the\nCom an .\np (ii/)For purposes of this Non-Compete Agreement, "Confidential Information” means\nTrade Secrets and, more broadly, any other tangible and intangible (e.g., electronic) forms and\ntypes of information that are held and kept confidential by the Company and are not generally\nknown outside the Company, and which relates to the actual or anticipated business of the\nCompany or the Company’s actual or prospective vendors or clients. Confidential Information\nshall not be considered generally known to the public if is revealed improperly to the public by\nme or others withoutthe Company’s express written consent and/or in violation of an obligation\nof confidentiality to the Company. Examples of Confidential Information include, but are not\nlimited to: customer, referral source, supplier and contractor identification and contacts; special\ncontract terms; pricing and margins; business, marketing and customer plans and strategies;\nfinancial data; company created (or licensed) techniques; technical know-how; research,\ndevelopment and production information; processes, prototypes, sofhivare, patent applications\nand plans, projections, proposals, discussion guides, and/or personal or performance\ninformation about employees.\n(b)| understand that this obligation of non-disclosure shall last so long as the information\nremains confidential. I, however, understand that, ifl live and work primarily in Wisconsin, Virginia, or\nany other state requiring a temporal limit on non-disclosure clauses, Confidential Information shall be\nprotected for two (2) years following termination of my employment (for any reason). I also understand\nthat Trade Secrets are protected by statute and are not subject to any time limits. I also agree to\ncontact the Company before using, disclosing, or distributing any Confidential Information or Trade\nSecrets if| have any questions aboutwhether such information is protected information.\n(c)The restrictions set forth in this paragraph are in addition to and not in lieu of any obligations\nl have by law with respect to the Company’s Confidential Information, including any obligations I may\nowe under the DTSA and any applicable state statutes. Nothing herein shall prohibit me from divulging\nevidence of criminal wrongdoing to law enforcement or prohibit me from disclosing Confidential\nInformation or Trade Secrets if compelled by order of court or an agency of competentjurisdiction or\nas required by law; however, I shall promptly inform the Company ofany such situations and shall take\nreasonable steps to prevent disclosure of Confidential Information orTrade Secrets until the Company\nhas been informed of such required disclosure and has had a reasonable opportunity to seek a\nprotective order. Pursuant to the DTSA, I understand that an individual may not be held criminally or\ncivilly liable under any federal or state trade secret law for the disclosure of a Trade Secret that: (A) is\nmade (i) in confidence to a federal, state or local government official, either directly or indirectly, or to\nan attorney, and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or\n(B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is\nmade under seal. Additionally, I understand that an individual who files a lawsuit for retaliation by an\nemployer for reporting a suspected violation of law may disclose the Trade Secret to his or her\nattorney and use the Trade Secret information in the court proceeding, so long as any document\ncontaining the Trade Secret is filed under seal and the individual does not disclose the Trade Secret,\nexcept pursuant to courtorder. Nothing in this Non-Compete Agreement\n(OGRSURTZOZO)\nis intended to conflict with the DTSA or create liability for disclosures of Trade Secrets that are\nexpressly allowed by DTSA.\n2.Non-Competition. I agree that during my employment with the Company and for twelve (12)\nmonths after the termination of my employment (for any reason), I will not, directly or indirectly have\nResponsibilities with respect to any Competing Business Line. As set forth in paragraph 9(a) below, I\nunderstand that the restrictions in this paragraph apply no matter whether my employment is\nterminated by me or the Company and no matter whether that termination is voluntary or involuntary.\nThese restrictions shall not apply to passive investments of less than five percent (5%) ownership\ninterest in any entity. For purposes of this Non-Compete Agreement, "Responsibilities" means the\nsame or similar material responsibilities I performed for the Company during the two (2) years prior to\nmy last day of employment with the Company and within the same geographic scope, or portion\nthereof, where I performed those responsibilities for the Company. For purposes of this Non-Compete\nAgreement, "Competing Business Line" means any business that is in competition with any\nbusiness engaged in by the Company and for which I had Responsibilities during the two (2) years\nprior to my last day of employment with the Company. Competing Business Line shall also include\nbusinesses or business lines that may not be directly competitive with the Company in most respects\n(such as pharmacy benefit managers), but only to the extentl am engaged by any such business in a\nrole: (a) that involves my performing Responsibilities for Competing Products or Services; or (b) where\nI would be called upon to inevitably rely upon or disclose Confidential Information and such reliance or\ndisclosure would competitively harm the Company. For purposes of this Non-Compete Agreement,\n"Competing Products or Services” means products or services that are competitive with products or\nservices offered by, developed by, designed by or distributed by the Company during the two (2) years\npriorto my lastday ofemploymentwith the Company.\n3. Non-Solicitation. I agree that during my employment with the Company and for two (2) years after\nthe termination of my employment from the Company (for any reason):\n(a) I will not directly or indirectly, solicit any Restricted Customer for purposes of providing\nCompeting Products or Services, or offer, provide or sell Competing Products or Services to any\nRestricted Customer. For purposes of this Non-Compete Agreement, "Restricted Customer” means\nany person, company or entity that was a customer, vendor, supplier or referral source of the\nCompany and with which I had direct contact for purposes of performing responsibilities for the\nCompany or for which I had supervisory responsibilities on behalf of the Company, in either case at\nany time during the two (2) years prior to my last day of employment with the Company. To the extent\npermitted by applicable law, "Restricted Customer” also means any prospective customer(s),\nvendor(s), supplier(s) or referral source(s) with which I had business contacton behalf ofthe Company\nin the twelve (12) months priorto my last day ofemployment with the Company; and\n(b) I will not, norwill I assistany third party to, directly or indirectly (i) raid, solicit, orattempt to\npersuade any then-current employee of the Company with whom I currently work or with whom I had\ndirect contact work during the two years prior to my last day of employment with the Company, and\nwho possesses or had access to Confidential Information of the Company, to leave the employ of the\nCompany; (ii) interfere with the performance by any such employee of his/her duties for the Company;\nand/or (iii) communicate with any such employee for the purposes described in items (i) and (ii) in this\nsubparagraph 3(b).\n4. Non-lnducement. I will not directly or indirectly assist or encourage any person or entity in carrying\nout or conducting any activity that would be prohibited by this Non-Compete Agreement if such activity were\ncarried outor conducted by me.\n5. Non-Disparagement. During my employment with the Company and thereafter, I agree not to\nmake negative comments or otherwise disparage the Company or any of its officers, directors, employees,\n(OGRSURTZOZO)\nshareholders, members, agents or products. The foregoing shall not be violated by truthful statements in\nresponse to legal process, required governmental testimony orfilings, or administrative or arbitral proceedings\n(including, without limitation, depositions in connection with such proceedings); and the foregoing shall not\napply to any claims for harassment or discrimination to the extentso restricted by applicable state law.\n6. Intellectual Property. The term "Intellectual Property” shall mean all trade secrets, ideas,\ninventions, designs, developments, devices, software, computer programs, methods and processes (whether\nor not patented or patentable, reduced to practice or included in the Confidential Information) and all patents\nand patent applications related thereto, all copyrights, copyrightable works and mask works (whether or not\nincluded in the Confidential Information) and all registrations and applications for registration related thereto,\nall Confidential Information, and all other proprietary rights contributed to, or conceived or created by, or\nreduced to practice by Employee or anyone acting on his/her behalf (whether alone or jointly with others) at\nany time from the beginning of Employee’s employment with the Company to the termination of that\nemployment plus ninety (90) days, that (i) relate to the business or to the actual or anticipated research or\ndevelopment of the Company; (ii) result from any services that Employee or anyone acting on its behalf\nperform for the Company; or (iii) are created using the equipment, supplies or facilities ofthe Company or any\nConfidential Information.\na.Ownership. All Intellectual Property is, shall be and shall remain the exclusive property of the\nCompany. Employee hereby assigns to the Company all right, title and interest, if any, in and to the\nIntellectual Property; provided, however, that, when applicable, the Company shall own the copyrights\nin all copyrightable works included in the Intellectual Property pursuant to the "work-made-for-hire”\ndoctrine (ratherthan by assignment), as such term is defined in the 1976 CopyrightAct. All Intellectual\nProperty shall be owned by the Company irrespective of any copyright notices or confidentiality\nlegends to the contrary that may be placed on such works by Employee or by others. Employee shall\nensure that all copyright notices and confidentiality legends on all work product authored by Employee\nor anyone acting on his/her behalf shall conform to the Company’s practices and shall specify the\nCompany as the owner of the work. The Company hereby provides notice to Employee that the\nobligation to assign does not apply to an invention for which no equipment, supplies, facility, or Trade\nSecrets of the Company was used and which was developed entirely on the Employee’s own time,\nunless (i) the invention relates (1) to the business of the Company, or (2) to the Company’s actual or\ndemonstrably anticipated research or development, or (ii) the invention results from any work\nperformed by Employee forthe Company.\nb.Keep Records. Employee shall keep and maintain, or cause to be kept and maintained by\nanyone acting on his/her behalf, adequate and currentwritten records ofall Intellectual Property in the\nform of notes, sketches, drawings, computer files, reports or other documents relating thereto. Such\nrecords shall be and shall remain the exclusive property of the Company and shall be available to the\nCompany at all times during my employment with the Company.\nc.Assistance. Employee shall supply all assistance requested in securing for the Company’s\nbenefit any patent, copyright, trademark, service mark, license, right or other evidence of ownership of\nany such Intellectual Property, and will provide full information regarding any such item and execute all\nappropriate documentation prepared by Company in applying or otherwise registering, in the\nCompany’s name, all rights to any such item or the defense and protection of such Intellectual\nProperty.\nd.Prior Inventions. Employee has disclosed to the Company any continuing obligations to any\nthird party with respect to Intellectual Property. Employee claims no rights to any inventions created\nprior to his/her employment for which a patent application has not previously been filed, unless he/she\nhas described them in detail on a schedule attached to this Non-Compete Agreement.\n(OGRSURTZOZO)\ne.Trade Secret Provisions. The provisions in paragraph 1 of this Non-Compete Agreementwith\nregard to Trade Secrets and the DTSA shall apply as well in the context of the parties’ Intellectual\nProperty rights and obligations.\n7. Return of Company Property. I agree that all documents and data accessible to me during my\nemployment with the Company, including Confidential Information and Trade Secrets, regardless of format\n(electronic or hard copy), including but not limited to any Company computer, monitor, printer equipment,\nexternal drives, wireless access equipment, telecom equipment and systems ("Company Equipment”), are\nand remain the sole and exclusive property of the Company and/or its clients, and must be returned to the\nCompany upon separation or upon demand by the Company. I further agree that I will provide passwords to\naccess such Company Equipment and I will not print, retain, copy, destroy, modify or erase Company US.\ndata on Company Equipment or otherwise wipe Company Equipment prior to returning the Company\nEquipment.\n8. Consideration and Acknowledgments. I acknowledge and agree that the covenants described in\nthis Non-Compete Agreement are essential terms, and the underlying Restricted Stock Units would not be\nprovided by the Company in the absence of these covenants. I further acknowledge that these covenants are\nsupported by adequate consideration as set forth in this Non-Compete Agreement and are not in conflict with\nany public interest. I further acknowledge and agree that I fully understand these covenants, have had full and\ncomplete opportunity to discuss and resolve any ambiguities or uncertainties regarding these covenants\nbefore signing this Non-Compete Agreement, and have voluntarily agreed to comply with these covenants for\ntheir stated terms. I further acknowledge and agree that these covenants are reasonable and enforceable in\nall respects.\n9. Enforceability; General Provisions.\n(a) I agree that the restrictions contained in this Non-Compete Agreement are reasonable\nand necessary to protect the Company’s legitimate business interests and thatfull compliance with the\nterms of this Non-Compete Agreement will not prevent me from earning a livelihood following the\ntermination of my employment, and that these covenants do not place undue restraint on me. I further\nunderstand that the restrictions in this Non-Compete Agreement apply no matter whether my\nemployment is terminated by me or the Company and no matter whether that termination is voluntary\nor involuntary.\n(b) Because the Company’s current base of operations is in Illinois and my connections\nthereto, (i) this Non-Compete Agreement shall be governed by and construed in accordance with the\nlaws of the State of Illinois, where this Non-Compete Agreement is entered into, without giving effect to\nany conflict of law provisions, and (ii) I consent to personal jurisdiction and the exclusive jurisdiction of\nthe state and federal courts of Illinois with respectto any claim, dispute or declaration arising outofthis\nNon-Compete Agreement.\n(c) In the event of a breach or a threatened breach of this Non-Compete Agreement, I\nacknowledge that the Company will face irreparable injury which may be difficult to calculate in dollar\nterms and that the Company shall be entitled, in addition to all remedies otherwise available in law or\nin equity, to temporary restraining orders and preliminary and final injunctions enjoining such breach or\nthreatened breach in any court ofcompetentjurisdiction withoutthe necessity of posting a surety bond,\nas well as to obtain an equitable accounting of all profits or benefits arising out of any violation of this\nNon-Compete Agreement.\n(d) I agree that if a court determines that any of the provisions in this Non-Compete\nAgreement is unenforceable or unreasonable in duration, territory, or scope, then that court shall\nmodify those provisions so they are reasonable and enforceable, and enforce those provisions as\nmodified.\n(OGRSURTZOZO)\n(e) If any one or more provisions (including paragraphs, subparagraphs and terms) of this\nNon-Compete Agreement or its application is determined to be invalid, illegal, or unenforceable to any\nextent or for any reason by a court of competent jurisdiction, I agree that the remaining provisions\n(including paragraphs, subparagraphs and terms) of this Non-Compete Agreement will still be valid\nand the provision declared to be invalid or illegal or unenforceable will be considered to be severed\nand deleted from the rest of this Non-Compete Agreement. I further agree that if any court of\ncompetent jurisdiction finds any of the restrictions set forth in this Non-Compete Agreement to be\noverly broad and unenforceable, the restriction shall be interpreted to extend only over the maximum\ntime period, geographic area, or range ofactivities or clients that such court deems enforceable\n(f) Notwithstanding the foregoing provisions of this Non-Compete Agreement, the\nnon-competition provisions of paragraph 2 above shall not restrict Employee from performing legal\nservices as a licensed attorney for a Competing Business to the extent that the attorney licensure\nrequirements in the applicable jurisdiction do not permit Employee to agree to the otherwise applicable\nrestrictions of paragraph 2.\n(g) Waiver of any of the provisions of this Non-Compete Agreement by the Company in any\nparticular instance shall not be deemed to be a waiver of any provision in any other instance and/or of\nthe Company’s other rights at law or underthis Non-Compete Agreement.\n(h) I agree thatthe Company may assign this Non-Compete Agreement to its successors and\nassigns and that any such successor or assign may stand in the Company’s stead for purposes of\nenforcing this Non-Compete Agreement.\n(i) I agree to reimburse the Company for all attorneys’ fees, costs, and expenses that it\nreasonably incurs in connection with enforcing its rights and remedies under this Non-Compete\nAgreement, but only to the extent the Company is ultimately the prevailing party in the applicable legal\nproceedings.\n(j) I understand and agree that, where allowed by applicable law, the time for my obligations\nset out in paragraphs 2 - 6 shall be extended for period of non-compliance up to an additional two (2)\nyears following my last day ofemploymentwith the Company (for any reason).\n(k) I fully understand my obligations in this Non-Compete Agreement, have had full and\ncomplete opportunity to discuss and resolve any ambiguities or uncertainties regarding these\ncovenants before signing this Non-Compete Agreement, and have voluntarily agreed to comply with\nthese covenants for their stated terms.\n(|) I agree that all non-competition, non-solicitation, non-disclosure and use, non-recruiting,\nand disclosure obligations in this Non-Compete Agreement shall survive any termination of this\nNon-Compete Agreement and extend to the proscribed periods following my last day of employment\nwith the Company (for any reason) and no dispute regarding any other provisions ofthis Non-Compete\nAgreement or regarding my employment or the termination of my employment shall prevent the\noperation and enforcement ofthese obligations.\n(m) I understand that nothing in this Non-Compete Agreement, including the non-disclosure\nand non-disparagement provisions, limit my ability to file a charge or complaint with the Equal\nEmployment Opportunity Commission, Department of Labor, National Labor Relations Board,\nOccupational Safety and Health Administration, Securities and Exchange Commission or any other\nfederal, state or local governmental agency or commission. I also understand that this Non-Compete\nAgreement does not limit my ability to communicate with any government agencies or otherwise\nparticipate in any investigation or proceeding that may be conducted by any government agency,\nincluding providing documents or other information, without notice to the Company. Finally, I\n(OGRSURTZOZO)\nunderstand that nothing in this Non-Compete Agreement is intended to restrict my legally-protected\nright to discuss wages, hours or other working condition with co-workers, or in any way limit my rights\nunderthe National Labor Relations Act or any whist|eb|ower act.\n10. Relationship of Parties. I acknowledge that my relationship with the Company is “terminable at\nwill” by either party and thatthe Company orl can terminate the relationship with or without cause and without\nfollowing any specific procedures. Nothing contained in this Non-Compete Agreement is intended to or shall\nbe relied upon to alter the "terminable at will” relationship between the parties. I agree that my obligations in\nthis Non-Compete Agreement shall survive the termination of my employment from the Company for any\nreason and shall be binding upon my successors, heirs, executors and representatives.\n11. Modifications and Other Agreements. I agree that the terms of this Non-Compete Agreement\nmay not be modified except by a written agreement signed by both me and the Company. This Non-Compete\nAgreement shall not supersede any other restrictive covenants to which I may be subject under an\nemployment contract, benefit program or otherwise, such thatthe Company may enforce the terms ofany and\nall restrictive covenants to which I am subject. The obligations herein are in addition to and do not limit any\nobligations arising under applicable statutes and common law.\n12. State and Commonwealth Law Modifications. I agree that if I primarily reside and work in\nCalifornia, Massachusetts, Puerto Rico, South Carolina, Washington or Wisconsin, I am subject to the\nmodifications to this Non-Compete Agreement set forth in ExhibitA-l applying to such state and to the extent\nsuch state law applies.\n13. Notification. I agree that in the event I am offered employment at any time in the future with any\nentity that may be considered a Competing Business Line, I shall immediately notify such Competing\nBusiness of the existence and terms of this Non-Compete Agreement. I also understand and agree that the\nCompany may notify anyone attempting to or later employing me of the existence and provisions of this\nNon-Compete Agreement.\n*>l<>l< *>l<>l< *>l<>l< *>l<>l< *>l<>l<\nBy clicking the acceptance box forthis grant agreement, I acknowledge receipt of the Restricted Stock\nUnit Award Agreement to which this Non-Compete Agreement is attached as Exhibit A, and I agree to the\nterms and conditions expressed in this Non-Compete Agreement, including the modifications set forth in\nExhibitA-l, as applicable.	EXHIBIT A\nWALGREENS BOOTS ALLIANCE, INC. NON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nThis Exhibit (the "Non-Compete Agreement") forms a part of the Restricted Stock Unit Award\nAgreement covering Restricted Stock Units awarded to an employee ("E mployee" or "I") of Walgreens Boots\nAlliance, Inc. or an affiliate thereof, on behalf of itself, its affiliates, subsidiaries, and successors (collectively\nreferred to as the "Company").\nWHEREAS, the Company develops and/or uses valuable business, technical, proprietary, customer\nand patient information it protects by limiting its disclosure and by keeping it secret or confidential;\nWHEREAS, Employee acknowledges that during the course of employment, he or she has or will\nreceive, contribute, or develop such Confidential Information and Trade Secrets (as defined below); and\nWHEREAS, the Company desires to protect from its competitors such Confidential Information and\nTrade Secrets and also desires to protect its legitimate business interests and goodwil in maintaining its\nemployee and customer relationships.\nNOW THEREFORE, in consideration of the Restricted Stock Units issued to Employee pursuant to the\nAgreement to which this is attached as Exhibit A and for other good and valuable consideration, including but\nnot limited to employment or continued employment, the specialized knowledge, skill and training that the\nCompany provides Employee, the goodwill that Employee develops with customers on behalf of the\nCompany, mployee agrees to be bound by the terms of this Non-Compete Agreement as follows:\n.Confidentiality.\n(a)At all times during and after the termination of my employment with the Company, I will not,\nwithout the Company's prior written permission, directly or indirectly for any purpose other than\nperformance of my duties for the Company, utilize or disclose to anyone outside of the Company any\nTrade Secrets (defined in subparagraph 1(a)(i)) or other Confidential Information (defined in\nsubparagraph 1(a)(ii)) or any information received by the Company in confidence from or about third\nparties, as long as such matters remain Trade Secrets or otherwise confidential.\n(OGRSURT2020)\n(i)F or purposes of this Non-Compete Agreement, "Trade Secrets" means a form of\nintellectual property that are protectable under applicable state and/or Federa law, including\nthe Uniform Trade Secrets Act (as amended and adapted by the states) and the Federa\nDefend Trade Secrets Act of 2016 (the "DTSA"). They include all tangible and intangible (e.g.,\nelectronic) forms and types of information that is held and kept confidentia by the Company\nand is not generally known outside of the Company, including but not limited to information\nabout: the Company's financial, business, scientific, technical, economic, or engineering\ninformation, including patterns, plans, compilations, program devices, formulas, designs,\nprototypes, methods, techniques, processes, procedures, programs or codes, and may in\nparticular include such things as pricing information, business records, software programs,\nalgorithms, inventions, patent applications, and designs and processes not known outside the\nCompany.\n(ii)l or purposes of this Non-Compete Agreement, "Confidential Information" means\nTrade Secrets and, more broadly, any other tangible and intangible (e.g., electronic) forms and\ntypes of information that are held and kept confidential by the Company and are not generally\nknown outside the Company, and which relates to the actual or anticipated business of the\nCompany or the Company's actual or prospective vendors or clients. Confidential Information\nshall\nnot\nbe\nconsidered\ngenerally\nknown\nto\nthe\npublic\nif\nis\nrevealed\nimproperly\nto\nthe\npublic\nby\nme or others without the Company's express written consent and/or in violation of an obligation\nof confidentiality to the Company. E xamples of Confidentia Information include, but are not\nlimited to: customer, referra source, supplier and contractor identification and contacts; special\ncontract terms; pricing and margins; business, marketing and customer plans and strategies;\nfinancial data; company created (or licensed) techniques; technical know-how; research,\ndevelopment\nand\nproduction\ninformation;\nprocesses,\nprototypes,\nsoftware,\npatent\napplications\nand plans, projections, proposals, discussion guides, and/or personal or performance\ninformation about employees.\n(b)I understand that this obligation of non-disclosure shall last so long as the information\nremains confidential. I, however, understand that, if I live and work primarily in Wisconsin, Virginia, or\nany other state requiring a tempora limit on non-disclosure clauses, Confidential Information shall be\nprotected\nfor\ntwo\n(2)\nyears\nfollowing\ntermination\nof\nmy\nemployment\n(for\nany\nreason).\nI\nalso\nunderstand\nthat Trade Secrets are protected by statute and are not subject to any time limits. I also agree to\ncontact the Company before using, disclosing, or distributing any Confidential Information or Trade\nSecrets if I have any questions about whether such information is protected information.\n)The restrictions set forth in this paragraph are in addition to and not in lieu of any obligations\nI have by law with respect to the Company's Confidential Information, including any obligations I may\nowe under the DTSA and any applicable state statutes. Nothing herein shall prohibit me from divulging\nevidence of crimina wrongdoing to law enforcement or prohibit me from disclosing Confidentia\nInformation or Trade Secrets if compelled by order of court or an agency of competent jurisdiction or\nas\nrequired\nby\nlaw;\nhowever,\nI\nshall\npromptly\ninform\nthe\nCompany\nof\nany\nsuch\nsituations\nand\nshall\ntake\nreasonable steps to prevent disclosure of Confidential Information or Trade ecrets until the Company\nhas been informed of such required disclosure and has had a reasonable opportunity to seek a\nprotective order. Pursuant to the DTSA, I understand that an individual may not be held criminally or\ncivilly liable under any federa or state trade secret law for the disclosure of a Trade Secret that: (A) is\nmade (i) in confidence to a federal, state or local government official, either directly or indirectly, or to\nan\nattorney,\nand\n(ii)\nsolely\nfor\nthe\npurpose\nof\nreporting\nor\ninvestigating\na\nsuspected\nviolation\nof\nlaw;\nor\n(B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is\nmade under seal Additionally, I understand that an individua who files a lawsuit for retaliation by an\nemployer for reporting a suspected violation of law may disclose the Trade Secret to his or her\nattorney and use the Trade Secret information in the court proceeding, so long as any document\ncontaining the Trade Secret is filed under seal and the individual does not disclose the Trade Secret,\nexcept pursuant to court order. Nothing in this Non-Compete Agreement\n(OGRSURT2020)\nis intended to conflict with the DTSA or create liability for disclosures of Trade Secrets that are\nexpressly allowed by DTSA.\n2.Non-Competition. agree that during my employment with the Company and for twelve (12)\nmonths after the termination of my employment (for any reason), I will not, directly or indirectly have\nResponsibilities with respect to any Competing Business Line. As set forth in paragraph 9(a) below, I\nunderstand that the restrictions in this paragraph apply no matter whether my employment is\nterminated\nby\nme\nor\nthe\nCompany\nand\nno\nmatter\nwhether\nthat\ntermination\nis\nvoluntary\nor\ninvoluntary.\nThese restrictions shall not apply to passive investments of less than five percent (5%) ownership\ninterest in any entity. For purposes of this Non-Compete Agreement, "Responsibilities" means the\nsame or similar material responsibilities I performed for the Company during the two (2) years prior\nto\nmy last day of employment with the Company and within the same geographic scope, or portion\nthereof, where I performed those responsibilities for the Company. For purposes of this Non-Compete\nAgreement,\n"Competing\nBusiness\nLine"\nmeans\nany\nbusiness\nthat\nis\nin\ncompetition\nwith\nany\nbusiness engaged in by the Company and for which I had Responsibilities during the two (2) years\nprior to my last day of employment with the Company. Competing Business Line shall also include\nbusinesses or business lines that may not be directly competitive with the Company in most respects\n(such as pharmacy benefit managers), but only to the extent I am engaged by any such business in a\nrole: (a) that involves my performing Responsibilities for Competing Products or Services; or (b) where\nI would be called upon to inevitably rely upon or disclose Confidentia Information and such reliance\nor\ndisclosure would competitively harm the Company. For purposes of this Non-Compete Agreement,\n"Competing Products or Services" means products or services that are competitive with products or\nservices offered by, developed by, designed by or distributed by the Company during the two (2) years\nprior to my last day of employment with the Company.\n3. Non-Solicitation. I agree that during my employment with the Company and for two (2) years after\nthe termination of my employment from the Company (for any reason):\n(a)\nI will not directly or indirectly, solicit any Restricted Customer for purposes of providing\nCompeting Products or Services, or offer, provide or sell Competing Products or Services to any\nRestricted Customer. For purposes of this Non-Compete Agreement, "Restricted Customer" means\nany\nperson,\ncompany\nor\nentity\nthat\nwas\na\ncustomer,\nvendor,\nsupplier\nor\nreferral\nsource\nof\nthe\nCompany and with which I had direct contact for purposes of performing responsibilities for the\nCompany or for which I had supervisory responsibilities on behalf of the Company, in either case at\nany time during the two (2) years prior to my last day of employment with the Company. To the extent\npermitted by applicable law, "Restricted Customer" also means any prospective customer(s),\nvendor(s), supplier(s) or referral source(s) with which I had business contact on behalf of the Company\nin the twelve (12) months prior to my last day of employment with the Company; and\n(b) I will not, nor will I assist any third party to, directly or indirectly (i) raid, solicit, or attempt to\npersuade any then-current employee of the Company with whom I currently work or with whom I had\ndirect contact work during the two years prior to my last day of employment with the Company, and\nwho possesses or had access to Confidential Information of the Company, to leave the employ of the\nCompany; (ii) interfere with the performance by any such employee of his/her duties for the Company;\nand/or (iii) communicate with any such employee for the purposes described in items (i) and (ii) in this\nsubparagraph 3(b).\n4. Non-Inducement. I will not directly or indirectly assist or encourage any person or entity in carrying\nout or conducting any activity that would be prohibited by this Non-Compete Agreement if such activity were\ncarried out or conducted by me.\n5.\nNon-Disparagement During my employment with the Company and thereafter, I agree not to\nmake negative comments or otherwise disparage the Company or any of its officers, directors, employees,\n(OGRSURT2020\nshareholders, members, agents or products. The foregoing shall not be violated by truthful statements in\nresponse to legal process, required governmental testimony or filings, or administrative or arbitral proceedings\n(including, without limitation, depositions in connection with such proceedings); and the foregoing shall not\napply to any claims for harassment or discrimination to the extent so restricted by applicable state law.\n6. Intellectual Property. The term "Intellectual Property" shall mean all trade secrets, ideas,\ninventions, designs, developments, devices, software, computer programs, methods and processes (whether\nor not patented or patentable, reduced to practice or included in the Confidential Information) and all patents\nand\npatent\napplications\nrelated\nthereto,\nall\ncopyrights,\ncopyrightable\nworks\nand\nmask\nworks\n(whether\nor\nnot\nincluded in the Confidential Information) and all registrations and applications for registration related thereto,\nall Confidential Information, and all other proprietary rights contributed to, or conceived or created by, or\nreduced to practice by Employee or anyone acting on his/her behalf (whether alone or jointly with others) at\nany time from the beginning of Employee's employment with the Company to the termination of that\nemployment\nplus\nninety\n(90)\ndays,\nthat\n(i)\nrelate\nto\nthe\nbusiness\nor\nto\nthe\nactual\nor\nanticipated\nresearch\nor\ndevelopment of the Company; (ii) result from any services that mployee or anyone acting on its behalf\nperform for the Company; or (iii) are created using the equipment, supplies or facilities of the Company or any\nConfidential Information.\na.Ownership. All Intellectua Property is, shall be and shall remain the exclusive property of the\nCompany. Employee hereby assigns to the Company all right, title and interest, if any, in and to the\nIntellectua Property; provided, however, that, when applicable, the Company shall own the copyrights\nin all copyrightable works included in the Intellectual Property pursuant to the "work-made-for-hire"\ndoctrine (rather than by assignment), as such term is defined in the 1976 Copyright Act. All Intellectual\nProperty shall be owned by the Company irrespective of any copyright notices or confidentiality\nlegends to the contrary that may be placed on such works by Employee or by others. mployee shall\nensure that all copyright notices and confidentiality legends on all work product authored by Employee\nor anyone acting on his/her behalf shall conform to the Company's practices and shal specify the\nCompany as the owner of the work. The Company hereby provides notice to Employee that the\nobligation to assign does not apply to an invention for which no equipment, supplies, facility, or Trade\nSecrets of the Company was used and which was developed entirely on the Employee's own time,\nunless (i) the invention relates (1) to the business of the Company, or (2) to the Company's actua or\ndemonstrably anticipated research or development, or (ii) the invention results from any work\nperformed by Employee for the Company.\n.Keep Records. mployee shall keep and maintain, or cause to be kept and maintained by\nanyone acting on his/her behalf, adequate and current written records of all Intellectual Property in the\nform of notes, sketches, drawings, computer files, reports or other documents relating thereto. Such\nrecords shal be and shall remain the exclusive property of the Company and shal be available to the\nCompany at all times during my employment with the Company.\nC.Assistance. Employee shall supply all assistance requested in securing for the Company's\nbenefit any patent, copyright trademark, service mark, license, right or other evidence of ownership of\nany such Intellectual Property, and will provide full information regarding any such item and execute all\nappropriate documentation prepared by Company in applying or otherwise registering, in the\nCompany's name, all rights to any such item or the defense and protection of such Intellectua\nProperty.\nd.P rior Inventions. Employee has disclosed to the Company any continuing obligations to any\nthird party with respect to Intellectual Property. Employee claims no rights to any inventions created\nprior to his/her employment for which a patent application has not previously been filed, unless he/she\nhas described them in detail on a schedule attached to this Non-Compete Agreement.\n(OGRSURT2020)\ne.Trade Secret Provisions. The provisions in paragraph 1 of this Non-Compete Agreement with\nregard to Trade Secrets and the DTSA shall apply as well in the context of the parties' Intellectual\nProperty rights and obligations.\n7.\nReturn of Company Property. I agree that all documents and data accessible to me during my\nemployment with the Company, including Confidential Information and Trade Secrets, regardless of format\n(electronic or hard copy), including but not limited to any Company computer, monitor, printer equipment,\nexternal\ndrives,\nwireless\naccess\nequipment,\ntelecom\nequipment\nand\nsystems\n("Company\nEquipment"),\nare\nand remain the sole and exclusive property of the Company and/or its clients, and must be returned to the\nCompany upon separation or upon demand by the Company. I further agree that I will provide passwords to\naccess such Company Equipment and I will not print, retain, copy, destroy, modify or erase Company U.S.\ndata on Company Equipment or otherwise wipe Company Equipment prior to returning the Company\nEquipment.\n8. Consideration and Acknowledgments. acknowledge and agree that the covenants described in\nthis Non-Compete Agreement are essential terms, and the underlying Restricted Stock Units would not be\nprovided by the Company in the absence of these covenants. I further acknowledge that these covenants are\nsupported by adequate consideration as set forth in this lon-Compete Agreement and are not in conflict with\nany public interest. I further acknowledge and agree that I fully understand these covenants, have had ful and\ncomplete opportunity to discuss and resolve any ambiguities or uncertainties regarding these covenants\nbefore\nsigning this Non-Compete Agreement and have voluntarily agreed to comply with these covenants\nfor\ntheir stated terms I further acknowledge and agree that these covenants are reasonable and enforceable in\nall respects.\n9. Enforceability; General rovisions.\n(a)\nI agree that the restrictions contained in this Non-Compete Agreement are reasonable\nand necessary to protect the Company's legitimate business interests and that full compliance with the\nterms of this Non-Compete Agreement will not prevent me from earning a livelihood following the\ntermination of my employment, and that these covenants do not place undue restraint on me. I further\nunderstand that the restrictions in this Non-Compete Agreement apply no matter whether my\nemployment is terminated by me or the Company and no matter whether that termination is voluntary\nor involuntary.\n(b) Because the Company's current base of operations is in Illinois and my connections\nthereto, (i) this Non-Compete Agreement shall be governed by and construed in accordance with the\nlaws of the State of Illinois, where this Non-Compete Agreement is entered into, without giving effect to\nany conflict of law provisions, and (ii) I consent to personal jurisdiction and the exclusive jurisdiction of\nthe state and federal courts of Illinois with respect to any claim, dispute or declaration arising out of this\nNon-Compete Agreement.\n(c)\nIn the event of a breach or a threatened breach of this Non-Compete Agreement, I\nacknowledge that the Company will face irreparable injury which may be difficult to calculate in dollar\nterms and that the Company shall be entitled, in addition to all remedies otherwise available in law or\nin equity, to temporary restraining orders and preliminary and final injunctions enjoining such breach or\nthreatened breach in any court of competent jurisdiction without the necessity of posting a surety bond,\nas well as to obtain an equitable accounting of all profits or benefits arising out of any violation of this\nNon-Compete Agreement.\n(d)\nI agree that if a court determines that any of the provisions in this Non-Compete\nAgreement is unenforceable or unreasonable in duration, territory, or scope, then that court shall\nmodify those provisions SO they are reasonable and enforceable, and enforce those provisions as\nmodified.\n(OGRSURT2020\n(e) If any one or more provisions (including paragraphs, subparagraphs and terms) of this\nNon-Compete Agreement or its application is determined to be invalid, illegal, or unenforceable to any\nextent or for any reason by a court of competent jurisdiction, I agree that the remaining provisions\n(including paragraphs, subparagraphs and terms) of this Non-Compete Agreement will still be valid\nand the provision declared to be invalid or illegal or unenforceable will be considered to be severed\nand deleted from the rest of this lon-Compete Agreement. I further agree that if any court of\ncompetent jurisdiction finds any of the restrictions set forth in this Non-Compete Agreement to be\noverly broad and unenforceable, the restriction shall be interpreted to extend only over the maximum\ntime period, geographic area, or range of activities or clients that such court deems enforceable\n(f)\nNotwithstanding the foregoing provisions of this Non-Compete Agreement the\nnon-competition provisions of paragraph 2 above shall not restrict Employee from performing legal\nservices as a licensed attorney for a Competing Business to the extent that the attorney licensure\nrequirements in the applicable jurisdiction do not permit mployee to agree to the otherwise applicable\nrestrictions of paragraph 2.\n(g) Waiver of any of the provisions of this Non-Compete Agreement by the Company in any\nparticular instance shall not be deemed to be a waiver of any provision in any other instance and/or of\nthe Company's other rights at law or under this Non-Compete Agreement.\n(h)\nI agree that the Company may assign this Non-Compete Agreement to its successors and\nassigns and that any such successor or assign may stand in the Company's stead for purposes of\nenforcing this Non-Compete Agreement.\n(i)\nI agree to reimburse the Company for all attorneys' fees, costs, and expenses that it\nreasonably incurs in connection with enforcing its rights and remedies under this Non-Compete\nAgreement, but only to the extent the Company is ultimately the prevailing party in the applicable legal\nproceedings.\n(j) I understand and agree that, where allowed by applicable law, the time for my obligations\nset out in paragraphs 2 6 shal be extended for period of non-compliance up to an additional two (2)\nyears following my last day of employment with the Company (for any reason).\n(k)\nI fully understand my obligations in this Non-Compete Agreement, have had full and\ncomplete opportunity to discuss and resolve any ambiguities or uncertainties regarding these\ncovenants before signing this Non-Compete Agreement, and have voluntarily agreed to comply with\nthese covenants for their stated terms.\n(I)\nI agree that all non-competition, non-solicitation, non-disclosure and use, non-recruiting,\nand disclosure obligations in this Non-Compete Agreement shall survive any termination of this\nNon-Compete Agreement and extend to the proscribed periods following my last day of employment\nwith the Company (for any reason) and no dispute regarding any other provisions of this Non-Compete\nAgreement or regarding my employment or the termination of my employment shall prevent the\noperation and enforcement of these obligations.\n(m) I understand that nothing in this Non-Compete Agreement, including the non-disclosure\nand non-disparagement provisions, limit my ability to file a charge or complaint with the Equal\nEmployment\nOpportunity\nCommission,\nDepartment\nof\nLabor,\nNational\nLabor\nRelations\nBoard,\nOccupational Safety and Health Administration, Securities and Exchange Commission or any other\nfederal, state or local governmental agency or commission. I also understand that this Non-Compete\nAgreement does not limit my ability to communicate with any government agencies or otherwise\nparticipate in any investigation or proceeding that may be conducted by any government agency,\nincluding providing documents or other information, without notice to the Company. Finally, I\n(OGRSURT2020)\nunderstand that nothing in this Non-Compete Agreement is intended to restrict my legally-protected\nright to discuss wages, hours or other working condition with co-workers, or in any way limit my rights\nunder the Nationa Labor Relations Act or any whistleblower act.\n10. Relationship of Parties. I acknowledge that my relationship with the Company is "terminable at\nwill" by either party and that the Company or I can terminate the relationship with or without cause and without\nfollowing any specific procedures. Nothing contained in this Non-Compete Agreement is intended to or shall\nbe relied upon to alter the "terminable at will" relationship between the parties. I agree that my obligations in\nthis Non-Compete Agreement shall survive the termination of my employment from the Company for any\nreason and shall be binding upon my successors, heirs, executors and representatives.\n11.\nModifications and Other Agreements. I agree that the terms of this Non-Compete Agreement\nmay\nnot\nbe\nmodified\nexcept\nby\na\nwritten\nagreement\nsigned\nby\nboth\nme\nand\nthe\nCompany.\nThis\non-Compete\nAgreement shall not supersede any other restrictive covenants to which I may be subject under an\nemployment contract, benefit program or otherwise, such that the Company may enforce the terms of any and\nall\nrestrictive covenants to which am subject The obligations herein are in addition to and do not limit any\nobligations arising under applicable statutes and common law.\n12. State and Commonwealth Law Modifications. I agree that if I primarily reside and work in\nCalifornia, Massachusetts, Puerto Rico, South Carolina, Washington or Wisconsin, I am subject to the\nmodifications to this Non-Compete Agreement set forth in xhibit A-1 applying to such state and to the extent\nsuch state law applies.\n13. Notification. I agree that in the event I am offered employment at any time in the future with any\nentity that may be considered a Competing Business Line, I shall immediately notify such Competing\nBusiness\nof\nthe\nexistence\nand\nterms\nof\nthis\nNon-Compete\nAgreement.\nI\nalso\nunderstand\nand\nagree\nthat\nthe\nCompany may notify anyone attempting to or later employing me of the existence and provisions of this\nNon-Compete Agreement.\n*k *k *kk *kk *xk\nBy clicking the acceptance box for this grant agreement, I acknowledge receipt of the Restricted Stock\nUnit Award Agreement to which this Non-Compete Agreement is attached as Exhibit A, and I agree to the\nterms and conditions expressed in this Non-Compete Agreement, including the modifications set forth in\nExhibit A-1, as applicable.	EXHIBIT A\nWALGREENS BOOTS ALLIANCE, INC. NON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nThis Exhibit (the "Non-Compete Agreement") forms a part of the Restricted Stock Unit Award\nAgreement covering Restricted Stock Units awarded to an employee ("Employee" or "I") of Walgreens Boots\nAlliance, Inc. or an affiliate thereof, on behalf of itself, its affiliates, subsidiaries, and successors (collectively\nreferred to as the "Company").\nWHEREAS, the Company develops and/or uses valuable business, technical, proprietary, customer\nand patient information it protects by limiting its disclosure and by keeping it secret or confidential;\nWHEREAS, Employee acknowledges that during the course of employment, he or she has or will\nreceive, contribute, or develop such Confidential Information and Trade Secrets (as defined below); and\nWHEREAS, the Company desires to protect from its competitors such Confidential Information and\nTrade Secrets and also desires to protect its legitimate business interests and goodwill in maintaining its\nemployee and customer relationships.\nNOW THEREFORE, in consideration of the Restricted Stock Units issued to Employee pursuant to the\nAgreement to which this is attached as Exhibit A and for other good and valuable consideration, including but\nnot limited to employment or continued employment, the specialized knowledge, skill and training that the\nCompany provides Employee, the goodwill that Employee develops with customers on behalf of the\nCompany, Employee agrees to be bound by the terms of this Non-Compete Agreement as follows:\n1.Confidentiality.\n(a)At all times during and after the termination of my employment with the Company, I will not,\nwithout the Company’s prior written permission, directly or indirectly for any purpose other than\nperformance of my duties for the Company, utilize or disclose to anyone outside of the Company any\nTrade Secrets (defined in subparagraph 1(a)(i)) or other Confidential Information (defined in\nsubparagraph 1(a)(ii)) or any information received by the Company in confidence from or about third\nparties, as long as such matters remain Trade Secrets or otherwise confidential.\n(OGRSURT2020)\n(i)For purposes of this Non-Compete Agreement, “Trade Secrets” means a form of\nintellectual property that are protectable under applicable state and/or Federal law, including\nthe Uniform Trade Secrets Act (as amended and adapted by the states) and the Federal\nDefend Trade Secrets Act of 2016 (the “DTSA”). They include all tangible and intangible (e.g.,\nelectronic) forms and types of information that is held and kept confidential by the Company\nand is not generally known outside of the Company, including but not limited to information\nabout: the Company’s financial, business, scientific, technical, economic, or engineering\ninformation, including patterns, plans, compilations, program devices, formulas, designs,\nprototypes, methods, techniques, processes, procedures, programs or codes, and may in\nparticular include such things as pricing information, business records, software programs,\nalgorithms, inventions, patent applications, and designs and processes not known outside the\nCompany.\n(ii)For purposes of this Non-Compete Agreement, “Confidential Information” means\nTrade Secrets and, more broadly, any other tangible and intangible (e.g ., electronic) forms and\ntypes of information that are held and kept confidential by the Company and are not generally\nknown outside the Company, and which relates to the actual or anticipated business of the\nCompany or the Company’s actual or prospective vendors or clients. Confidential Information\nshall not be considered generally known to the public if is revealed improperly to the public by\nme or others without the Company’s express written consent and/or in violation of an obligation\nof confidentiality to the Company. Examples of Confidential Information include, but are not\nlimited to: customer, referral source, supplier and contractor identification and contacts; special\ncontract terms; pricing and margins; business, marketing and customer plans and strategies;\nfinancial data; company created (or licensed) techniques; technical know-how; research,\ndevelopment and production information; processes, prototypes, software, patent applications\nand plans, projections, proposals, discussion guides, and/or personal or performance\ninformation about employees.\n(b)I understand that this obligation of non-disclosure shall last so long as the information\nremains confidential. I, however, understand that, if I live and work primarily in Wisconsin, Virginia, or\nany other state requiring a temporal limit on non-disclosure clauses, Confidential Information shall be\nprotected for two (2) years following termination of my employment (for any reason). I also understand\nthat Trade Secrets are protected by statute and are not subject to any time limits. I also agree to\ncontact the Company before using, disclosing, or distributing any Confidential Information or Trade\nSecrets if I have any questions about whether such information is protected information.\n(c)The restrictions set forth in this paragraph are in addition to and not in lieu of any obligations\nI have by law with respect to the Company’s Confidential Information, including any obligations I may\nowe under the DTSA and any applicable state statutes. Nothing herein shall prohibit me from divulging\nevidence of criminal wrongdoing to law enforcement or prohibit me from disclosing Confidential\nInformation or Trade Secrets if compelled by order of court or an agency of competent jurisdiction or\nas required by law; however, I shall promptly inform the Company of any such situations and shall take\nreasonable steps to prevent disclosure of Confidential Information or Trade Secrets until the Company\nhas been informed of such required disclosure and has had a reasonable opportunity to seek a\nprotective order. Pursuant to the DTSA, I understand that an individual may not be held criminally or\ncivilly liable under any federal or state trade secret law for the disclosure of a Trade Secret that: (A) is\nmade (i) in confidence to a federal, state or local government official, either directly or indirectly, or to\nan attorney, and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or\n(B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is\nmade under seal. Additionally, I understand that an individual who files a lawsuit for retaliation by an\nemployer for reporting a suspected violation of law may disclose the Trade Secret to his or her\nattorney and use the Trade Secret information in the court proceeding, so long as any document\ncontaining the Trade Secret is filed under seal and the individual does not disclose the Trade Secret,\nexcept pursuant to court order. Nothing in this Non-Compete Agreement\n(OGRSURT2020)\nis intended to conflict with the DTSA or create liability for disclosures of Trade Secrets that are\nexpressly allowed by DTSA.\n2.Non-Competition. I agree that during my employment with the Company and for twelve (12)\nmonths after the termination of my employment (for any reason), I will not, directly or indirectly have\nResponsibilities with respect to any Competing Business Line. As set forth in paragraph 9(a) below, I\nunderstand that the restrictions in this paragraph apply no matter whether my employment is\nterminated by me or the Company and no matter whether that termination is voluntary or involuntary.\nThese restrictions shall not apply to passive investments of less than five percent (5%) ownership\ninterest in any entity. For purposes of this Non-Compete Agreement, “Responsibilities” means the\nsame or similar material responsibilities I performed for the Company during the two (2) years prior to\nmy last day of employment with the Company and within the same geographic scope, or portion\nthereof, where I performed those responsibilities for the Company. For purposes of this Non-Compete\nAgreement, “Competing Business Line” means any business that is in competition with any\nbusiness engaged in by the Company and for which I had Responsibilities during the two (2) years\nprior to my last day of employment with the Company. Competing Business Line shall also include\nbusinesses or business lines that may not be directly competitive with the Company in most respects\n(such as pharmacy benefit managers), but only to the extent I am engaged by any such business in a\nrole: (a) that involves my performing Responsibilities for Competing Products or Services; or (b) where\nI would be called upon to inevitably rely upon or disclose Confidential Information and such reliance or\ndisclosure would competitively harm the Company. For purposes of this Non-Compete Agreement,\n“Competing Products or Services” means products or services that are competitive with products or\nservices offered by, developed by, designed by or distributed by the Company during the two (2) years\nprior to my last day of employment with the Company.\n3. Non-Solicitation. I agree that during my employment with the Company and for two (2) years after\nthe termination of my employment from the Company (for any reason):\n(a) I will not directly or indirectly, solicit any Restricted Customer for purposes of providing\nCompeting Products or Services, or offer, provide or sell Competing Products or Services to any\nRestricted Customer. For purposes of this Non-Compete Agreement, “Restricted Customer” means\nany person, company or entity that was a customer, vendor, supplier or referral source of the\nCompany and with which I had direct contact for purposes of performing responsibilities for the\nCompany or for which I had supervisory responsibilities on behalf of the Company, in either case at\nany time during the two (2) years prior to my last day of employment with the Company. To the extent\npermitted by applicable law, “Restricted Customer” also means any prospective customer(s),\nvendor(s), supplier(s) or referral source(s) with which I had business contact on behalf of the Company\nin the twelve (12) months prior to my last day of employment with the Company; and\n(b) I will not, nor will I assist any third party to, directly or indirectly (i) raid, solicit, or attempt to\npersuade any then-current employee of the Company with whom I currently work or with whom I had\ndirect contact work during the two years prior to my last day of employment with the Company, and\nwho possesses or had access to Confidential Information of the Company, to leave the employ of the\nCompany; (ii) interfere with the performance by any such employee of his/her duties for the Company;\nand/or (iii) communicate with any such employee for the purposes described in items (i) and (ii) in this\nsubparagraph 3(b).\n4. Non-Inducement. I will not directly or indirectly assist or encourage any person or entity in carrying\nout or conducting any activity that would be prohibited by this Non-Compete Agreement if such activity were\ncarried out or conducted by me.\n5. Non-Disparagement. During my employment with the Company and thereafter, I agree not to\nmake negative comments or otherwise disparage the Company or any of its officers, directors, employees,\n(OGRSURT2020)\nshareholders, members, agents or products. The foregoing shall not be violated by truthful statements in\nresponse to legal process, required governmental testimony or filings, or administrative or arbitral proceedings\n(including, without limitation, depositions in connection with such proceedings); and the foregoing shall not\napply to any claims for harassment or discrimination to the extent so restricted by applicable state law.\n6.\nIntellectual Property. The term “Intellectual Property” shall mean all trade secrets, ideas,\ninventions, designs, developments, devices, software, computer programs, methods and processes (whether\nor not patented or patentable, reduced to practice or included in the Confidential Information) and all patents\nand patent applications related thereto, all copyrights, copyrightable works and mask works (whether or not\nincluded in the Confidential Information) and all registrations and applications for registration related thereto,\nall Confidential Information, and all other proprietary rights contributed to, or conceived or created by, or\nreduced to practice by Employee or anyone acting on his/her behalf (whether alone or jointly with others) at\nany time from the beginning of Employee’s employment with the Company to the termination of that\nemployment plus ninety (90) days, that (i) relate to the business or to the actual or anticipated research or\ndevelopment of the Company; (ii) result from any services that Employee or anyone acting on its behalf\nperform for the Company; or (iii) are created using the equipment, supplies or facilities of the Company or any\nConfidential Information.\na.Ownership. All Intellectual Property is, shall be and shall remain the exclusive property of the\nCompany. Employee hereby assigns to the Company all right, title and interest, if any, in and to the\nIntellectual Property; provided, however, that, when applicable, the Company shall own the copyrights\nin all copyrightable works included in the Intellectual Property pursuant to the “work-made-for-hire”\ndoctrine (rather than by assignment), as such term is defined in the 1976 Copyright Act. All Intellectual\nProperty shall be owned by the Company irrespective of any copyright notices or confidentiality\nlegends to the contrary that may be placed on such works by Employee or by others. Employee shall\nensure that all copyright notices and confidentiality legends on all work product authored by Employee\nor anyone acting on his/her behalf shall conform to the Company’s practices and shall specify the\nCompany as the owner of the work. The Company hereby provides notice to Employee that the\nobligation to assign does not apply to an invention for which no equipment, supplies, facility, or Trade\nSecrets of the Company was used and which was developed entirely on the Employee’s own time,\nunless (i) the invention relates (1) to the business of the Company, or (2) to the Company’s actual or\ndemonstrably anticipated research or development, or (ii) the invention results from any work\nperformed by Employee for the Company.\nb.Keep Records. Employee shall keep and maintain, or cause to be kept and maintained by\nanyone acting on his/her behalf, adequate and current written records of all Intellectual Property in the\nform of notes, sketches, drawings, computer files, reports or other documents relating thereto. Such\nrecords shall be and shall remain the exclusive property of the Company and shall be available to the\nCompany at all times during my employment with the Company.\nc.Assistance. Employee shall supply all assistance requested in securing for the Company’s\nbenefit any patent, copyright, trademark, service mark, license, right or other evidence of ownership of\nany such Intellectual Property, and will provide full information regarding any such item and execute all\nappropriate documentation prepared by Company in applying or otherwise registering, in the\nCompany’s name, all rights to any such item or the defense and protection of such Intellectual\nProperty.\nd.Prior Inventions. Employee has disclosed to the Company any continuing obligations to any\nthird party with respect to Intellectual Property. Employee claims no rights to any inventions created\nprior to his/her employment for which a patent application has not previously been filed, unless he/she\nhas described them in detail on a schedule attached to this Non-Compete Agreement.\n(OGRSURT2020)\ne.Trade Secret Provisions. The provisions in paragraph 1 of this Non-Compete Agreement with\nregard to Trade Secrets and the DTSA shall apply as well in the context of the parties’ Intellectual\nProperty rights and obligations.\n7. Return of Company Property. I agree that all documents and data accessible to me during my\nemployment with the Company, including Confidential Information and Trade Secrets, regardless of format\n(electronic or hard copy), including but not limited to any Company computer, monitor, printer equipment,\nexternal drives, wireless access equipment, telecom equipment and systems (“Company Equipment”), are\nand remain the sole and exclusive property of the Company and/or its clients, and must be returned to the\nCompany upon separation or upon demand by the Company. I further agree that I will provide passwords to\naccess such Company Equipment and I will not print, retain, copy, destroy, modify or erase Company U.S .\ndata on Company Equipment or otherwise wipe Company Equipment prior to returning the Company\nEquipment.\n8. Consideration and Acknowledgments. I acknowledge and agree that the covenants described in\nthis Non-Compete Agreement are essential terms, and the underlying Restricted Stock Units would not be\nprovided by the Company in the absence of these covenants. I further acknowledge that these covenants are\nsupported by adequate consideration as set forth in this Non-Compete Agreement and are not in conflict with\nany public interest. I further acknowledge and agree that I fully understand these covenants, have had full and\ncomplete opportunity to discuss and resolve any ambiguities or uncertainties regarding these covenants\nbefore signing this Non-Compete Agreement, and have voluntarily agreed to comply with these covenants for\ntheir stated terms. I further acknowledge and agree that these covenants are reasonable and enforceable in\nall respects.\n9. Enforceability; General Provisions.\n(a) I agree that the restrictions contained in this Non-Compete Agreement are reasonable\nand necessary to protect the Company’s legitimate business interests and that full compliance with the\nterms of this Non-Compete Agreement will not prevent me from earning a livelihood following the\ntermination of my employment, and that these covenants do not place undue restraint on me. I further\nunderstand that the restrictions in this Non-Compete Agreement apply no matter whether my\nemployment is terminated by me or the Company and no matter whether that termination is voluntary\nor involuntary.\n(b) Because the Company’s current base of operations is in Illinois and my connections\nthereto, (i) this Non-Compete Agreement shall be governed by and construed in accordance with the\nlaws of the State of Illinois, where this Non-Compete Agreement is entered into, without giving effect to\nany conflict of law provisions, and (ii) I consent to personal jurisdiction and the exclusive jurisdiction of\nthe state and federal courts of Illinois with respect to any claim, dispute or declaration arising out of this\nNon-Compete Agreement.\n(c) In the event of a breach or a threatened breach of this Non-Compete Agreement, I\nacknowledge that the Company will face irreparable injury which may be difficult to calculate in dollar\nterms and that the Company shall be entitled, in addition to all remedies otherwise available in law or\nin equity, to temporary restraining orders and preliminary and final injunctions enjoining such breach or\nthreatened breach in any court of competent jurisdiction without the necessity of posting a surety bond,\nas well as to obtain an equitable accounting of all profits or benefits arising out of any violation of this\nNon-Compete Agreement.\n(d)\nI agree that if a court determines that any of the provisions in this Non-Compete\nAgreement is unenforceable or unreasonable in duration, territory, or scope, then that court shall\nmodify those provisions so they are reasonable and enforceable, and enforce those provisions as\nmodified.\n(OGRSURT2020)\n(e) If any one or more provisions (including paragraphs, subparagraphs and terms) of this\nNon-Compete Agreement or its application is determined to be invalid, illegal, or unenforceable to any\nextent or for any reason by a court of competent jurisdiction, I agree that the remaining provisions\n(including paragraphs, subparagraphs and terms) of this Non-Compete Agreement will still be valid\nand the provision declared to be invalid or illegal or unenforceable will be considered to be severed\nand deleted from the rest of this Non-Compete Agreement. I further agree that if any court of\ncompetent jurisdiction finds any of the restrictions set forth in this Non-Compete Agreement to be\noverly broad and unenforceable, the restriction shall be interpreted to extend only over the maximum\ntime period, geographic area, or range of activities or clients that such court deems enforceable\n(f)\nNotwithstanding the foregoing provisions of this Non-Compete Agreement, the\nnon-competition provisions of paragraph 2 above shall not restrict Employee from performing legal\nservices as a licensed attorney for a Competing Business to the extent that the attorney licensure\nrequirements in the applicable jurisdiction do not permit Employee to agree to the otherwise applicable\nrestrictions of paragraph 2.\n(g) Waiver of any of the provisions of this Non-Compete Agreement by the Company in any\nparticular instance shall not be deemed to be a waiver of any provision in any other instance and/or of\nthe Company’s other rights at law or under this Non-Compete Agreement.\n(h) I agree that the Company may assign this Non-Compete Agreement to its successors and\nassigns and that any such successor or assign may stand in the Company’s stead for purposes of\nenforcing this Non-Compete Agreement.\n(i)\nI agree to reimburse the Company for all attorneys’ fees, costs, and expenses that it\nreasonably incurs in connection with enforcing its rights and remedies under this Non-Compete\nAgreement, but only to the extent the Company is ultimately the prevailing party in the applicable legal\nproceedings.\n(j) I understand and agree that, where allowed by applicable law, the time for my obligations\nset out in paragraphs 2 - 6 shall be extended for period of non-compliance up to an additional two (2)\nyears following my last day of employment with the Company (for any reason).\n(k) I fully understand my obligations in this Non-Compete Agreement, have had full and\ncomplete opportunity to discuss and resolve any ambiguities or uncertainties regarding these\ncovenants before signing this Non-Compete Agreement, and have voluntarily agreed to comply with\nthese covenants for their stated terms.\n(l) I agree that all non-competition, non-solicitation, non-disclosure and use, non-recruiting,\nand disclosure obligations in this Non-Compete Agreement shall survive any termination of this\nNon-Compete Agreement and extend to the proscribed periods following my last day of employment\nwith the Company (for any reason) and no dispute regarding any other provisions of this Non-Compete\nAgreement or regarding my employment or the termination of my employment shall prevent the\noperation and enforcement of these obligations.\n(m) I understand that nothing in this Non-Compete Agreement, including the non-disclosure\nand non-disparagement provisions, limit my ability to file a charge or complaint with the Equal\nEmployment Opportunity Commission, Department of Labor, National Labor Relations Board,\nOccupational Safety and Health Administration, Securities and Exchange Commission or any other\nfederal, state or local governmental agency or commission. I also understand that this Non-Compete\nAgreement does not limit my ability to communicate with any government agencies or otherwise\nparticipate in any investigation or proceeding that may be conducted by any government agency,\nincluding providing documents or other information, without notice to the Company. Finally, I\n(OGRSURT2020)\nunderstand that nothing in this Non-Compete Agreement is intended to restrict my legally-protected\nright to discuss wages, hours or other working condition with co-workers, or in any way limit my rights\nunder the National Labor Relations Act or any whistleblower act.\n10. Relationship of Parties. I acknowledge that my relationship with the Company is “terminable at\nwill” by either party and that the Company or I can terminate the relationship with or without cause and without\nfollowing any specific procedures. Nothing contained in this Non-Compete Agreement is intended to or shall\nbe relied upon to alter the “terminable at will” relationship between the parties. I agree that my obligations in\nthis Non-Compete Agreement shall survive the termination of my employment from the Company for any\nreason and shall be binding upon my successors, heirs, executors and representatives.\n11. Modifications and Other Agreements. I agree that the terms of this Non-Compete Agreement\nmay not be modified except by a written agreement signed by both me and the Company. This Non-Compete\nAgreement shall not supersede any other restrictive covenants to which I may be subject under an\nemployment contract, benefit program or otherwise, such that the Company may enforce the terms of any and\nall restrictive covenants to which I am subject. The obligations herein are in addition to and do not limit any\nobligations arising under applicable statutes and common law.\n12. State and Commonwealth Law Modifications. I agree that if I primarily reside and work in\nCalifornia, Massachusetts, Puerto Rico, South Carolina, Washington or Wisconsin, I am subject to the\nmodifications to this Non-Compete Agreement set forth in Exhibit A-1 applying to such state and to the extent\nsuch state law applies.\n13. Notification. I agree that in the event I am offered employment at any time in the future with any\nentity that may be considered a Competing Business Line, I shall immediately notify such Competing\nBusiness of the existence and terms of this Non-Compete Agreement. I also understand and agree that the\nCompany may notify anyone attempting to or later employing me of the existence and provisions of this\nNon-Compete Agreement.\n*** *** *** *** ***\nBy clicking the acceptance box for this grant agreement, I acknowledge receipt of the Restricted Stock\nUnit Award Agreement to which this Non-Compete Agreement is attached as Exhibit A, and I agree to the\nterms and conditions expressed in this Non-Compete Agreement, including the modifications set forth in\nExhibit A-1, as applicable.
+772c74abe4020e8cddb8d8fbcc3c3ea4.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 8 d197291dex99d3.htm EX-99.(D)(3)\nExhibit (d)(3)\nConfidential Disclosure Agreement\nThis mutual Confidential Disclosure Agreement (the “Agreement”) is made effective as of December 22, 2014 (the “Effective Date”) and\nwill confirm recent discussions between Jazz Pharmaceuticals plc with a principal place of business at Fourth Floor Connaught House, One\nBurlington Road, Dublin 4, Ireland (together with its subsidiaries, “Jazz Pharmaceuticals”) and Celator Pharmaceuticals, Inc. with a principal\nplace of business at 200 PrincetonSouth Corporate Center, Suite 180, Ewing, New Jersey 08628 USA (“Celator”) concerning a possible business\nrelationship between Celator and Jazz Pharmaceuticals. In order to continue discussions, each party wishes to evaluate certain information and\ndata that the other party considers to be confidential and proprietary, and each party wishes to disclose certain information and data that it\nconsiders to be confidential and proprietary provided that such information and data is received in confidence and used by the other party solely\nto evaluate and negotiate such business relationship (the “Purpose”). Each party agrees to disclose to or allow the other to have access to, and to\nreceive from the other party, confidential and proprietary information, only upon the following terms and conditions:\n1. “Confidential Information” means all information that is disclosed by one party (the “Disclosing Party”) to the other party (the\n“Receiving Party”), either directly or indirectly, including without limitation data, schematics, designs, patent applications, drawings,\nspecifications, technology, samples, models and specimens relating to technologies, products and product concepts discovered or developed or\nbeing explored or developed by the Disclosing Party, or the use, manufacture or marketing thereof, or the Disclosing Party’s related clinical,\nregulatory, manufacturing or marketing affairs, whether in written, graphic, electronic or oral form, with the exception only of the following:\n(a) information that is now in the public domain or subsequently enters the public domain without fault on the part of the\nReceiving Party;\n(b) information that, prior to the date of disclosure hereunder, is known by the Receiving Party from its own sources without\nrestriction, as evidenced by the Receiving Party’s prior written records;\n(c) information received by the Receiving Party without restriction from any third party not under any obligation to keep such\ninformation confidential; and\n(d) information which the Receiving Party proves by clear and convincing evidence was independently developed without the use\nof any of the Disclosing Party’s Confidential Information.\nAny combination of features or disclosures will not be deemed to fall within the foregoing exclusions merely because certain individual features\nare published or available to the general public or in the rightful possession of Receiving Party unless the combination as a whole falls within any\nof the above exceptions.\n2. Each party agrees to maintain in confidence all Confidential Information of the other party and, subject to the express provisions of this\nAgreement, not to disclose such Confidential Information to any third party without the express written consent of such other\nparty, to be given or withheld in the absolute discretion of such other party. Each party shall take all necessary and reasonable precautions to\nprevent the disclosure of Confidential Information of the other party to any unauthorized third parties. In this regard, each party agrees that it will\ndisclose Confidential Information of the other party only to those of its agents, employees and consultants (the “Company Recipients”) who need\nto know such Confidential Information to accomplish the Purpose and who are bound by obligations of confidentiality at least as stringent as\nthose set forth herein. Each party agrees that upon disclosing Confidential Information of the other party to any Company Recipients, such\nCompany Recipients shall be advised of the confidential nature of the information and shall be instructed to take all necessary and reasonable\nprecautions to prevent the unauthorized disclosure thereof. Each party may disclose Confidential Information of the other party to affiliated\ncompanies controlled by, under the control of, or under common control with such party (the “Affiliates” and together with the Company\nRecipients, the “Representatives”), if such Affiliates are bound by obligations of confidentiality at least as stringent as those set forth herein.\nEach party agrees to enforce the terms and provisions of this Agreement as to any Representative who receives any Confidential Information of\nthe other party hereunder and to assume liability for breach of this Agreement by any or all such Representatives. Notwithstanding the foregoing,\nthe Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by applicable laws or regulations or as\nordered by a court or other regulatory body having competent jurisdiction provided that the Receiving Party uses commercially reasonable efforts\nto limit the disclosure and maintain confidentiality to the extent possible and provides reasonable prior written notice to the Disclosing Party.\n3. Each party agrees that it shall not use Confidential Information of the other party for any purpose other than the Purpose without the\nexpress written consent of such other party, to be given or withheld in the absolute discretion of such other party. Each party acknowledges that\nthe use of Confidential Information of the other party for any reason other than the Purpose or disclosure of Confidential Information of the other\nparty without the express written permission of such other party may cause irreparable harm to such other party and that any material breach or\nthreatened material breach of this Agreement by the Receiving Party will entitle the Disclosing Party to seek injunctive relief and reasonable\nattorneys’ fees, in addition to any other legal remedies available to it, in any court of competent jurisdiction.\n4. All Confidential Information disclosed by the Disclosing Party to the Receiving Party pursuant to this Agreement shall be and remain the\nproperty of the Disclosing Party and all written Confidential Information and copies thereof shall he promptly returned or lawfully destroyed\nupon the earlier of the termination of this Agreement or the Disclosing Party’s request, provided that the Receiving Party shall be entitled to\nretain one set of all such information in strict confidence for the sole purpose of monitoring its obligations hereunder.\n5. The term of this Agreement will be for three years from the Effective Date. Either party may terminate this Agreement with 30 days’\nwritten notice to the other party. Each party’s obligations of confidentiality and non-use under this Agreement shall survive any termination and\nshall continue for a period of seven years from the termination of this Agreement for any reason, including the natural end of its term.\n2\n6. Nothing contained herein shall be construed as granting or implying any property rights to the Receiving Party, by license or otherwise,\nto any Confidential Information of the Disclosing Party, or to any invention, or any patent, copyright, trademark or other intellectual property\nright that has issued or may issue based on such Confidential Information.\n7. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or\nof such provision on any other occasion.\n8. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes\nand merges all prior discussions between the parties with respect to such matters. Any amendment, modification or waiver of this Agreement or\nany of its terms must be agreed to in a writing signed by both parties.\n9. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA, excluding any choice\nof law rules which may direct the application of the laws of another jurisdiction.\n10. This Agreement will be binding upon, inure to the benefit of, and be enforceable by and against the successors and assigns of each\nparty; provided, however, that no assignment of this Agreement by a party in its capacity as a Receiving Party shall relieve such party of its\nobligations of confidentiality and non-use under this Agreement.\n11. This Agreement may be executed by the parties in separate counterparts, each of which will be deemed an original but both of which\ntogether will constitute one and the same Agreement. Any photocopy, facsimile or electronic reproduction of the executed Agreement shall\nconstitute an original.\n(Remainder of page left intentionally blank)\n3\nIf the foregoing is acceptable, please have this Agreement executed and dated by an authorized corporate officer and return one fully executed\ncopy to Jazz Pharmaceuticals.\nApproved and accepted as of the Effective Date\nAGREED TO:\nAGREED TO:\nJazz Pharmaceuticals plc\nCelator Pharmaceuticals, Inc.\nName: /s/ Patricia Carr\nName: /s/ Scott T. Jackson\nTitle: VP Finance\nTitle: Chief Executive Officer\n4	EX-99.(D)(3) 8 d197291dex99d3.htm EX-99.(D)(3)\nExhibit (d)(3)\nConfidential Disclosure Agreement\nThis mutual Confidential Disclosure Agreement (the “Agreement”) is made effective as of December 22, 2014 (the “Effective Date”) and\nwill confirm recent discussions between Jazz Pharmaceuticals plc with a principal place of business at Fourth Floor Connaught House, One\nBurlington Road, Dublin 4, Ireland (together with its subsidiaries, “Jazz Pharmaceuticals”) and Celator Pharmaceuticals, Inc. with a principal\nplace of business at 200 PrincetonSouth Corporate Center, Suite 180, Ewing, New Jersey 08628 USA (“Celator”) concerning a possible business\nrelationship between Celator and Jazz Pharmaceuticals. In order to continue discussions, each party wishes to evaluate certain information and\ndata that the other party considers to be confidential and proprietary, and each party wishes to disclose certain information and data that it\nconsiders to be confidential and proprietary provided that such information and data is received in confidence and used by the other party solely\nto evaluate and negotiate such business relationship (the “Purpose). Each party agrees to disclose to or allow the other to have access to, and to\nreceive from the other party, confidential and proprietary information, only upon the following terms and conditions:\n1. “Confidential Information” means all information that is disclosed by one party (the “Disclosing Party”) to the other party (the\n“Receiving Party”), either directly or indirectly, including without limitation data, schematics, designs, patent applications, drawings,\nspecifications, technology, samples, models and specimens relating to technologies, products and product concepts discovered or developed or\nbeing explored or developed by the Disclosing Party, or the use, manufacture or marketing thereof, or the Disclosing Party’s related clinical,\nregulatory, manufacturing or marketing affairs, whether in written, graphic, electronic or oral form, with the exception only of the following:\n(@)  information that is now in the public domain or subsequently enters the public domain without fault on the part of the\nReceiving Party;\n(b)  information that, prior to the date of disclosure hereunder, is known by the Receiving Party from its own sources without\nrestriction, as evidenced by the Receiving Party’s prior written records;\n(c)  information received by the Receiving Party without restriction from any third party not under any obligation to keep such\ninformation confidential; and\n(d)  information which the Receiving Party proves by clear and convincing evidence was independently developed without the use\nof any of the Disclosing Party’s Confidential Information.\nAny combination of features or disclosures will not be deemed to fall within the foregoing exclusions merely because certain individual features\nare published or available to the general public or in the rightful possession of Receiving Party unless the combination as a whole falls within any\nof the above exceptions.\n2. Each party agrees to maintain in confidence all Confidential Information of the other party and, subject to the express provisions of this\nAgreement, not to disclose such Confidential Information to any third party without the express written consent of such other\nparty, to be given or withheld in the absolute discretion of such other party. Each party shall take all necessary and reasonable precautions to\nprevent the disclosure of Confidential Information of the other party to any unauthorized third parties. In this regard, each party agrees that it will\ndisclose Confidential Information of the other party only to those of its agents, employees and consultants (the “Company Recipients”) who need\nto know such Confidential Information to accomplish the Purpose and who are bound by obligations of confidentiality at least as stringent as\nthose set forth herein. Each party agrees that upon disclosing Confidential Information of the other party to any Company Recipients, such\nCompany Recipients shall be advised of the confidential nature of the information and shall be instructed to take all necessary and reasonable\nprecautions to prevent the unauthorized disclosure thereof. Each party may disclose Confidential Information of the other party to affiliated\ncompanies controlled by, under the control of, or under common control with such party (the “Affiliates” and together with the Company\nRecipients, the “Representatives”), if such Affiliates are bound by obligations of confidentiality at least as stringent as those set forth herein.\nEach party agrees to enforce the terms and provisions of this Agreement as to any Representative who receives any Confidential Information of\nthe other party hereunder and to assume liability for breach of this Agreement by any or all such Representatives. Notwithstanding the foregoing,\nthe Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by applicable laws or regulations or as\nordered by a court or other regulatory body having competent jurisdiction provided that the Receiving Party uses commercially reasonable efforts\nto limit the disclosure and maintain confidentiality to the extent possible and provides reasonable prior written notice to the Disclosing Party.\n3. Each party agrees that it shall not use Confidential Information of the other party for any purpose other than the Purpose without the\nexpress written consent of such other party, to be given or withheld in the absolute discretion of such other party. Each party acknowledges that\nthe use of Confidential Information of the other party for any reason other than the Purpose or disclosure of Confidential Information of the other\nparty without the express written permission of such other party may cause irreparable harm to such other party and that any material breach or\nthreatened material breach of this Agreement by the Receiving Party will entitle the Disclosing Party to seek injunctive relief and reasonable\nattorneys’ fees, in addition to any other legal remedies available to it, in any court of competent jurisdiction.\n4. All Confidential Information disclosed by the Disclosing Party to the Receiving Party pursuant to this Agreement shall be and remain the\nproperty of the Disclosing Party and all written Confidential Information and copies thereof shall he promptly returned or lawfully destroyed\nupon the earlier of the termination of this Agreement or the Disclosing Party’s request, provided that the Receiving Party shall be entitled to\nretain one set of all such information in strict confidence for the sole purpose of monitoring its obligations hereunder.\n5. The term of this Agreement will be for three years from the Effective Date. Either party may terminate this Agreement with 30 days’\nwritten notice to the other party. Each party’s obligations of confidentiality and non-use under this Agreement shall survive any termination and\nshall continue for a period of seven years from the termination of this Agreement for any reason, including the natural end of its term.\n2\n6. Nothing contained herein shall be construed as granting or implying any property rights to the Receiving Party, by license or otherwise,\nto any Confidential Information of the Disclosing Party, or to any invention, or any patent, copyright, trademark or other intellectual property\nright that has issued or may issue based on such Confidential Information.\n7. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or\nof such provision on any other occasion.\n8. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes\nand merges all prior discussions between the parties with respect to such matters. Any amendment, modification or waiver of this Agreement or\nany of its terms must be agreed to in a writing signed by both parties.\n9. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA, excluding any choice\nof law rules which may direct the application of the laws of another jurisdiction.\n10. This Agreement will be binding upon, inure to the benefit of, and be enforceable by and against the successors and assigns of each\nparty; provided, however, that no assignment of this Agreement by a party in its capacity as a Receiving Party shall relieve such party of its\nobligations of confidentiality and non-use under this Agreement.\n11. This Agreement may be executed by the parties in separate counterparts, each of which will be deemed an original but both of which\ntogether will constitute one and the same Agreement. Any photocopy, facsimile or electronic reproduction of the executed Agreement shall\nconstitute an original.\n(Remainder of page left intentionally blank)\n3\nIf the foregoing is acceptable, please have this Agreement executed and dated by an authorized corporate officer and return one fully executed\ncopy to Jazz Pharmaceuticals.\nApproved and accepted as of the Effective Date\nAGREED TO: AGREED TO:\nJazz Pharmaceuticals plc Celator Pharmaceuticals, Inc.\nName: /s/ Patricia Carr Name: /s/ Scott T. Jackson\nTitle: VP Finance Title: Chief Executive Officer	EX-99.(D)(3) 8 d197291dex99d3.htm EX-99.(D)(3)\nExhibit (d)(3)\nConfidential Disclosure Agreement\nThis mutual Confidential Disclosure Agreement (the "Agreement") is made effective as of December 22, 2014 (the "Effective Date") and\nwill confirm recent discussions between Jazz Pharmaceuticals plc with a principal place of business at Fourth Floor Connaught House, One\nBurlington Road, Dublin 4, Ireland (together with its subsidiaries, "Jazz Pharmaceuticals") and Celator Pharmaceuticals, Inc. with a principal\nplace of business at 200 PrincetonSouth Corporate Center, Suite 180, Ewing, New Jersey 08628 USA ("Celator") concerning a possible business\nrelationship between Celator and Jazz Pharmaceuticals. In order to continue discussions, each party wishes to evaluate certain information and\ndata that the other party considers to be confidential and proprietary, and each party wishes to disclose certain information and data that\nit\nconsiders to be confidential and proprietary provided that such information and data is received in confidence and used by the other party solely\nto evaluate and negotiate such business relationship (the "Purpose"). Each party agrees to disclose to or allow the other to have access to, and to\nreceive from the other party, confidential and proprietary information, only upon the following terms and conditions:\n1.\n"Confidential Information" means all information that is disclosed by one party (the "Disclosing Party") to the other party (the\n"Receiving Party"), either directly or indirectly, including without limitation data, schematics, designs, patent applications, drawings,\nspecifications, technology, samples, models and specimens relating to technologies, products and product concepts discovered or developed\nor\nbeing explored or developed by the Disclosing Party, or the use, manufacture or marketing thereof, or the Disclosing Party's related clinical,\nregulatory, manufacturing or marketing affairs, whether in written, graphic, electronic or oral form, with the exception only of the following:\n(a) information that is now in the public domain or subsequently enters the public domain without fault on the part of the\nReceiving Party;\n(b)\ninformation that, prior to the date of disclosure hereunder, is known by the Receiving Party from its own sources without\nrestriction, as evidenced by the Receiving Party's prior written records;\n(c)\ninformation received by the Receiving Party without restriction from any third party not under any obligation to keep such\ninformation confidential; and\n(d)\ninformation which the Receiving Party proves by clear and convincing evidence was independently developed without the\nuse\nof any of the Disclosing Party's Confidential Information.\nAny combination of features or disclosures will not be deemed to fall within the foregoing exclusions merely because certain individual features\nare published or available to the general public or in the rightful possession of Receiving Party unless the combination as a whole falls within any\nof the above exceptions.\n2. Each party agrees to maintain in confidence all Confidential Information of the other party and, subject to the express provisions of this\nAgreement, not to disclose such Confidential Information to any third party without the express written consent of such other\nparty, to be given or withheld in the absolute discretion of such other party. Each party shall take all necessary and reasonable precautions to\nprevent the disclosure of Confidential Information of the other party to any unauthorized third parties. In this regard, each party agrees that it will\ndisclose Confidential Information of the other party only to those of its agents, employees and consultants (the "Company Recipients") who need\nto know such Confidential Information to accomplish the Purpose and who are bound by obligations of confidentiality at least as stringent as\nthose set forth herein. Each party agrees that upon disclosing Confidential Information of the other party to any Company Recipients, such\nCompany Recipients shall be advised of the confidential nature of the information and shall be instructed to take all necessary and reasonable\nprecautions to prevent the unauthorized disclosure thereof. Each party may disclose Confidential Information of the other party to affiliated\ncompanies controlled by, under the control of, or under common control with such party (the "Affiliates" and together with the Company\nRecipients, the "Representatives"), if such Affiliates are bound by obligations of confidentiality at least as stringent as those set forth herein.\nEach party agrees to enforce the terms and provisions of this Agreement as to any Representative who receives any Confidential Information of\nthe other party hereunder and to assume liability for breach of this Agreement by any or all such Representatives. Notwithstanding the foregoing,\nthe Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by applicable laws or regulations or as\nordered by a court or other regulatory body having competent jurisdiction provided that the Receiving Party uses commercially reasonable efforts\nto limit the disclosure and maintain confidentiality to the extent possible and provides reasonable prior written notice to the Disclosing Party.\n3. Each party agrees that it shall not use Confidential Information of the other party for any purpose other than the Purpose without the\nexpress written consent of such other party, to be given or withheld in the absolute discretion of such other party. Each party acknowledges that\nthe use of Confidential Information of the other party for any reason other than the Purpose or disclosure of Confidential Information of the other\nparty without the express written permission of such other party may cause irreparable harm to such other party and that any material breach or\nthreatened material breach of this Agreement by the Receiving Party will entitle the Disclosing Party to seek injunctive relief and reasonable\nattorneys' fees, in addition to any other legal remedies available to it, in any court of competent jurisdiction.\n4. All Confidential Information disclosed by the Disclosing Party to the Receiving Party pursuant to this Agreement shall be and remain the\nproperty of the Disclosing Party and all written Confidential Information and copies thereof shall he promptly returned or lawfully destroyed\nupon the earlier of the termination of this Agreement or the Disclosing Party's request, provided that the Receiving Party shall be entitled\nto\nretain one set of all such information in strict confidence for the sole purpose of monitoring its obligations hereunder.\n5. The term of this Agreement will be for three years from the Effective Date. Either party may terminate this Agreement with 30 days'\nwritten notice to the other party. Each party's obligations of confidentiality and non-use under this Agreement shall survive any termination and\nshall continue for a period of seven years from the termination of this Agreement for any reason, including the natural end of its term.\n2\n6. Nothing contained herein shall be construed as granting or implying any property rights to the Receiving Party, by license or otherwise,\nto any Confidential Information of the Disclosing Party, or to any invention, or any patent, copyright, trademark or other intellectual property\nright that has issued or may issue based on such Confidential Information.\n7. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or\nof such provision on any other occasion.\n8. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes\nand merges all prior discussions between the parties with respect to such matters. Any amendment, modification or waiver of this Agreement\nor\nany of its terms must be agreed to in a writing signed by both parties.\n9. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA, excluding any choice\nof law rules which may direct the application of the laws of another jurisdiction.\n10. This Agreement will be binding upon, inure to the benefit of, and be enforceable by and against the successors and assigns of each\nparty; provided, however, that no assignment of this Agreement by a party in its capacity as a Receiving Party shall relieve such party of its\nobligations of confidentiality and non-use under this Agreement.\n11. This Agreement may be executed by the parties in separate counterparts, each of which will be deemed an original but both of which\ntogether will constitute one and the same Agreement. Any photocopy, facsimile or electronic reproduction of the executed Agreement shall\nconstitute an original.\n(Remainder of page left intentionally blank)\n3\nIf the foregoing is acceptable, please have this Agreement executed and dated by an authorized corporate officer and return one fully executed\ncopy to Jazz Pharmaceuticals.\nApproved and accepted as of the Effective Date\nAGREED TO:\nAGREED TO:\nJazz Pharmaceuticals plc\nCelator Pharmaceuticals, Inc.\nName: /s/ Patricia Carr\nName: /s/ Scott T. Jackson\nTitle: VP Finance\nTitle: Chief Executive Officer\n4	EX-99.(D)(3) 8 d197291dex99d3.htm EX-99.(D)(3)\nExhibit (d)(3)\nConfidential Disclosure Agreement\nThis mutual Confidential Disclosure Agreement (the “Agreement”) is made effective as of December 22, 2014 (the “Effective Date”) and\nwill confirm recent discussions between Jazz Pharmaceuticals plc with a principal place of business at Fourth Floor Connaught House, One\nBurlington Road, Dublin 4, Ireland (together with its subsidiaries, “Jazz Pharmaceuticals”) and Celator Pharmaceuticals, Inc. with a principal\nplace of business at 200 PrincetonSouth Corporate Center, Suite 180, Ewing, New Jersey 08628 USA (“Celator”) concerning a possible business\nrelationship between Celator and Jazz Pharmaceuticals. In order to continue discussions, each party wishes to evaluate certain information and\ndata that the other party considers to be confidential and proprietary, and each party wishes to disclose certain information and data that it\nconsiders to be confidential and proprietary provided that such information and data is received in confidence and used by the other party solely\nto evaluate and negotiate such business relationship (the “Purpose”). Each party agrees to disclose to or allow the other to have access to, and to\nreceive from the other party, confidential and proprietary information, only upon the following terms and conditions:\n1. “Confidential Information” means all information that is disclosed by one party (the “Disclosing Party”) to the other party (the\n“Receiving Party”), either directly or indirectly, including without limitation data, schematics, designs, patent applications, drawings,\nspecifications, technology, samples, models and specimens relating to technologies, products and product concepts discovered or developed or\nbeing explored or developed by the Disclosing Party, or the use, manufacture or marketing thereof, or the Disclosing Party’s related clinical,\nregulatory, manufacturing or marketing affairs, whether in written, graphic, electronic or oral form, with the exception only of the following:\n(a) information that is now in the public domain or subsequently enters the public domain without fault on the part of the\nReceiving Party;\n(b) information that, prior to the date of disclosure hereunder, is known by the Receiving Party from its own sources without\nrestriction, as evidenced by the Receiving Party’s prior written records;\n(c) information received by the Receiving Party without restriction from any third party not under any obligation to keep such\ninformation confidential; and\n(d) information which the Receiving Party proves by clear and convincing evidence was independently developed without the use\nof any of the Disclosing Party’s Confidential Information.\nAny combination of features or disclosures will not be deemed to fall within the foregoing exclusions merely because certain individual features\nare published or available to the general public or in the rightful possession of Receiving Party unless the combination as a whole falls within any\nof the above exceptions.\n2. Each party agrees to maintain in confidence all Confidential Information of the other party and, subject to the express provisions of this\nAgreement, not to disclose such Confidential Information to any third party without the express written consent of such other\nparty, to be given or withheld in the absolute discretion of such other party. Each party shall take all necessary and reasonable precautions to\nprevent the disclosure of Confidential Information of the other party to any unauthorized third parties. In this regard, each party agrees that it will\ndisclose Confidential Information of the other party only to those of its agents, employees and consultants (the “Company Recipients”) who need\nto know such Confidential Information to accomplish the Purpose and who are bound by obligations of confidentiality at least as stringent as\nthose set forth herein. Each party agrees that upon disclosing Confidential Information of the other party to any Company Recipients, such\nCompany Recipients shall be advised of the confidential nature of the information and shall be instructed to take all necessary and reasonable\nprecautions to prevent the unauthorized disclosure thereof. Each party may disclose Confidential Information of the other party to affiliated\ncompanies controlled by, under the control of, or under common control with such party (the “Affiliates” and together with the Company\nRecipients, the “Representatives”), if such Affiliates are bound by obligations of confidentiality at least as stringent as those set forth herein.\nEach party agrees to enforce the terms and provisions of this Agreement as to any Representative who receives any Confidential Information of\nthe other party hereunder and to assume liability for breach of this Agreement by any or all such Representatives. Notwithstanding the foregoing,\nthe Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by applicable laws or regulations or as\nordered by a court or other regulatory body having competent jurisdiction provided that the Receiving Party uses commercially reasonable efforts\nto limit the disclosure and maintain confidentiality to the extent possible and provides reasonable prior written notice to the Disclosing Party.\n3. Each party agrees that it shall not use Confidential Information of the other party for any purpose other than the Purpose without the\nexpress written consent of such other party, to be given or withheld in the absolute discretion of such other party. Each party acknowledges that\nthe use of Confidential Information of the other party for any reason other than the Purpose or disclosure of Confidential Information of the other\nparty without the express written permission of such other party may cause irreparable harm to such other party and that any material breach or\nthreatened material breach of this Agreement by the Receiving Party will entitle the Disclosing Party to seek injunctive relief and reasonable\nattorneys’ fees, in addition to any other legal remedies available to it, in any court of competent jurisdiction.\n4. All Confidential Information disclosed by the Disclosing Party to the Receiving Party pursuant to this Agreement shall be and remain the\nproperty of the Disclosing Party and all written Confidential Information and copies thereof shall he promptly returned or lawfully destroyed\nupon the earlier of the termination of this Agreement or the Disclosing Party’s request, provided that the Receiving Party shall be entitled to\nretain one set of all such information in strict confidence for the sole purpose of monitoring its obligations hereunder.\n5. The term of this Agreement will be for three years from the Effective Date. Either party may terminate this Agreement with 30 days’\nwritten notice to the other party. Each party’s obligations of confidentiality and non-use under this Agreement shall survive any termination and\nshall continue for a period of seven years from the termination of this Agreement for any reason, including the natural end of its term.\n2\n6. Nothing contained herein shall be construed as granting or implying any property rights to the Receiving Party, by license or otherwise,\nto any Confidential Information of the Disclosing Party, or to any invention, or any patent, copyright, trademark or other intellectual property\nright that has issued or may issue based on such Confidential Information.\n7. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or\nof such provision on any other occasion.\n8. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes\nand merges all prior discussions between the parties with respect to such matters. Any amendment, modification or waiver of this Agreement or\nany of its terms must be agreed to in a writing signed by both parties.\n9. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA, excluding any choice\nof law rules which may direct the application of the laws of another jurisdiction.\n10. This Agreement will be binding upon, inure to the benefit of, and be enforceable by and against the successors and assigns of each\nparty; provided, however, that no assignment of this Agreement by a party in its capacity as a Receiving Party shall relieve such party of its\nobligations of confidentiality and non-use under this Agreement.\n11. This Agreement may be executed by the parties in separate counterparts, each of which will be deemed an original but both of which\ntogether will constitute one and the same Agreement. Any photocopy, facsimile or electronic reproduction of the executed Agreement shall\nconstitute an original.\n(Remainder of page left intentionally blank)\n3\nIf the foregoing is acceptable, please have this Agreement executed and dated by an authorized corporate officer and return one fully executed\ncopy to Jazz Pharmaceuticals.\nApproved and accepted as of the Effective Date\nAGREED TO:\nAGREED TO:\nJazz Pharmaceuticals plc\nCelator Pharmaceuticals, Inc.\nName: /s/ Patricia Carr\nName: /s/ Scott T. Jackson\nTitle: VP Finance\nTitle: Chief Executive Officer\n4
+7734ce5d96e0261092e7ba33f9acb905.pdf	effective_date jurisdiction party term	EX-99.(E)(4) 3 d371520dex99e4.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(4)\nSTRICTLY CONFIDENTIAL\nJanuary 27, 2012\nSycamore Partners Management, L.L.C.\n9 West 57 Street, 31 Floor\nNew York, New York 10019\nAttention: Stefan Kaluzny\nManaging Director\nDear Mr. Kaluzny:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between\nSycamore Partners Management, L.L .C ., a Delaware limited liability company (the “Receiving Party”) and The Talbots,\nInc., a Delaware corporation (together with its subsidiaries, the “Company”).\n1.\nConfidential Information; Representatives. (a) The Receiving Party is considering a possible\nbusiness combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with\nrespect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible\nTransaction, the Company is prepared to make available to the Receiving Party certain information concerning the\nbusiness, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a\ncondition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals,\npartners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates,\npotential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party,\nthe Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this\nAgreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.\n(b)\nThe term “Confidential Information” shall include, without limitation, any and all information\nconcerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects\nthat is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before\nor after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans,\ncompilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda,\ndocuments or other materials (in whatever form maintained or conveyed, whether\nth\nst\ndocumentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information\nconcerning the Company or its business, operations, strategic initiatives, financing, employees, strategies or prospects\nprepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any\nCompany Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives\ninvolving or relating to the Confidential Information.\n2.\nExcluded Information.\nThe Confidential Information shall not include information that the\nReceiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving\nParty or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to\ndisclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to\nanother confidentiality agreement with the Company or another party, (c) has been independently developed by the\nReceiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving\nParty by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a\nnon-confidential basis.\n3.\nLimitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall,\nand shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible\nTransaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in\nconfidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that\n(i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by\napplicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied\nwith the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the\nConfidential Information to the extent that the Company gives its prior written consent, and (iii) any information\ncontained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably\nrequire access to such information for the purpose of evaluating a possible Transaction and who agree to keep such\ninformation in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not\nmake any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s\nprior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the\nReceiving Party or by any of its Representatives.\n(b)\nThe Receiving Party agrees that, for a period of eighteen months from the date of this Agreement,\nthe Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly,\n(i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or\n(ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee\nof the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the\npossible Transaction or about whom the Receiving Party receives Confidential\n2\nInformation; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such\nemployees of the Company shall not be considered a solicitation or unauthorized hiring.\n(c)\nIf the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information\nby it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such\nunauthorized disclosure or use.\n4.\nNon-Disclosure of Existence of Negotiations. Without the prior written consent of the Company\nor except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not\ndisclose to any person that any discussions or negotiations are taking place between the parties concerning a possible\nTransaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).\n5.\nNo Representations by the Company. The Company will have the exclusive authority to decide\nwhat Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the\nCompany nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates\n(collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential\nInformation available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update\nany Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has\nmade or is making any representation or warranty, express or implied, as to the accuracy or completeness of any\nConfidential Information, and neither the Company nor any of the Company Representatives will have any liability to\nthe Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any\nConfidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and\nwarranties (if any) that are included in any final definitive written agreement that provides for the consummation of a\nnegotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving\nParty and the Company will have legal effect.\n6.\nStandstill Agreement. In consideration of the Confidential Information being furnished to the\nReceiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of\nthis Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the\nConfidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly\nrequested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not\n(and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their\nrespective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any\nproposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner,\nbeneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company\n(including any derivative securities with economic equivalents of ownership of\n3\nany of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the\nCompany, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are\nused in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence\nany person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in\na “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to\nany voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates,\n(d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board\nof directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any\naction that could require the Company to make any public disclosure, with respect to any of the matters set forth in this\nAgreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution\nand delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or\n(g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any\nother persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request\nthe Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this\nSection 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill\nPeriod shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive\nagreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or\nmore of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its\npreviously announced strategic review process without a definitive agreement to sell the Company, (C) the Company\nmakes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization,\ninsolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such\nproceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent\nthereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the\nStandstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the\napplicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders\nmeeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses\n(c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by\nclause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).\n7.\nReturn of Confidential Information.\nPromptly upon the written request of the Company, the\nReceiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports,\nmemoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or\nreflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of\nConfidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be\nbound by their\n4\nconfidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the\nforegoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential\nInformation (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting\nfirms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable\nlaw or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it\nis “backed-up” on its or their (as the case may be) electronic information management and communications systems or\nservers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such\ninformation so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this\nAgreement for a period of eighteen months from the date hereof.\n8.\n2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012\nannual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier\nthan thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the\nCompany’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release\nannouncing the date of its 2012 annual meeting on the date such press release is publicly issued.\n9.\nSubpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses\nthe Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion\nInformation under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another\ngovernmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company\nof the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability\nof taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion\nInformation is required, furnish only such portion of the Confidential Information or Discussion Information as the\nReceiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company,\ncooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the\nConfidential Information or Discussion Information or other reliable assurance that confidential treatment will be\naccorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be\ndisclosed.\n10.\nDefinitive Agreement. Unless and until a definitive written agreement between the Receiving\nParty and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor\nthe Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of\nthis or any other written or oral expression by either of them or their Representatives except, in the case of this\nAgreement, for the matters specifically agreed to herein.\n5\n11.\nRemedies. Each of the parties hereto acknowledges that in the event of any breach of the terms\nof this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties\nhereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction\n(which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.\n12.\nCommunications. Without the Company’s prior written consent, which may be withheld by the\nCompany in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other\nthan through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing,\nany (a) communication concerning the Confidential Information, (b) requests for meetings with management of the\nCompany in connection with the possible Transaction or other transaction between the parties or (c) communication\nrelating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee\nof the Company.\n13.\nSecurities Laws.\nThe Receiving Party acknowledges that it is aware and that the Receiving\nParty and its Representatives have been advised that the United States securities laws prohibit any person having non-\npublic material information about a company from purchasing or selling securities of that company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such\nperson is likely to purchase or sell such securities.\n14.\nEntire Agreement; Amendments.\nThis Agreement represents the entire understanding and\nagreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived\nonly by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or\nwaiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective\nsuccessors and assigns.\n15.\nNo Waiver.\nNo failure or delay by either party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further\nexercise thereof or the exercise of any right, power or privilege hereunder.\n16.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws\nof the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and\nunconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York\nfor purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any\nprocess, summons, notice or document by U.S . registered mail to the address set forth at the end of this Agreement shall\nbe effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and\nunconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to\nthis Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally\n6\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit\nor proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State\nof New York has been brought in an inconvenient forum.\n17.\nExpenses.\nIn the event of litigation relating to this Agreement, if a court of competent\njurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-\nbreaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation,\nincluding any appeal therefrom.\n18.\nCaptions.\nThe Captions contained in this Agreement are for convenience only and shall not\naffect the construction or interpretation of any provisions of this Agreement.\n19.\nCounterparts. This Agreement may be executed in multiple counterparts, each of which shall\nbe deemed to be an original, but all of which shall constitute one and the same Agreement.\n20.\nSeverability. In the event any term of this Agreement is found by any court to be void or\notherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were\nabsent upon the date of its execution.\n21.\nNotices.\nAll notices and other communications required or permitted hereunder will be in\nwriting and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic\nfacsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the\naddress specified below:\nThe Talbots, Inc.\nAttention: Chief Operating Officer\nOne Talbots Drive\nHingham, MA 02043\nTelephone: 781-741-7600\nFacsimile: 781-741-4927\nwith copies to:\nThe Talbots, Inc.\nAttention: General Counsel\n211 South Ridge St.\nRye Brook, NY 10573\nTelephone: 914-934-8877\nFacsimile: 914-934-9136\nand\n7\nDewey & LeBoeuf LLP\nAttention: Morton A. Pierce, Esq.\nChang-Do Gong, Esq.\n1301 Avenue of the Americas\nNew York, NY 10019\nTelephone: 212-259-8000\nFacsimile: 212-259-6333\n22.\nNon-Private Equity Affiliates.\nNotwithstanding anything to the contrary provided elsewhere\nherein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and\nactivities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the\nprivate equity business and (b) the Confidential Information is not made available to Representatives of the Receiving\nParty and its affiliates who are not involved in the private equity business or who are engaged in investments that are not\nprivate equity investments and such ordinary course business services and activities are otherwise conducted without any\nreference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the\nReceiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including,\nwithout limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of\nthe United States).\n23.\nTermination. Except as otherwise specified herein, the obligations of the parties set forth in this\nAgreement shall terminate and be of no further force and effect eighteen months from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n8\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first\nwritten above.\nTHE TALBOTS, INC.\nBy /s/ Richard T. O’Connell, Jr.\nName: Richard T. O’Connell, Jr.\nTitle: Executive Vice President\nSYCAMORE PARTNERS MANAGEMENT,\nL.L.C .\nBy /s/ Stefan Kaluzny\nName: Stefan Kaluzny\nTitle: Managing Director	EX-99.(E)(4) 3 d371520dex99e4.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(4)\nSTRICTLY CONFIDENTIAL\nJanuary 27, 2012\nSycamore Partners Management, L.L.C.\n9 West 57t Street, 31st Floor\nNew York, New York 10019\nAttention: Stefan Kaluzny\nManaging Director\nDear Mr. Kaluzny:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between\nSycamore Partners Management, L.L..C., a Delaware limited liability company (the “Receiving Party”) and The Talbots,\nInc., a Delaware corporation (together with its subsidiaries, the “Company”).\n1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible\nbusiness combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with\nrespect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible\nTransaction, the Company is prepared to make available to the Receiving Party certain information concerning the\nbusiness, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a\ncondition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals,\npartners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates,\npotential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party,\nthe Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this\nAgreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.\n(b) The term “Confidential Information” shall include, without limitation, any and all information\nconcerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects\nthat is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before\nor after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans,\ncompilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda,\ndocuments or other materials (in whatever form maintained or conveyed, whether\ndocumentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information\nconcerning the Company or its business, operations, strategic initiatives, financing, employees, strategies or prospects\nprepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any\nCompany Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives\ninvolving or relating to the Confidential Information.\n2. Excluded Information. = The Confidential Information shall not include information that the\nReceiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving\nParty or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to\ndisclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to\nanother confidentiality agreement with the Company or another party, (c) has been independently developed by the\nReceiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving\nParty by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a\nnon-confidential basis.\n3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall,\nand shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible\nTransaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in\nconfidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that\n(i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by\napplicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied\nwith the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the\nConfidential Information to the extent that the Company gives its prior written consent, and (iii) any information\ncontained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably\nrequire access to such information for the purpose of evaluating a possible Transaction and who agree to keep such\ninformation in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not\nmake any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s\nprior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the\nReceiving Party or by any of its Representatives.\n \n \n(b) The Receiving Party agrees that, for a period of eighteen months from the date of this Agreement,\nthe Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly,\n(i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or\n(ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee\nof the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the\npossible Transaction or about whom the Receiving Party receives Confidential\n2\nInformation; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such\nemployees of the Company shall not be considered a solicitation or unauthorized hiring.\n(0 If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information\nby it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such\nunauthorized disclosure or use.\n4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the Company\nor except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not\ndisclose to any person that any discussions or negotiations are taking place between the parties concerning a possible\nTransaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).\n5. No Representations by the Company. The Company will have the exclusive authority to decide\nwhat Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the\nCompany nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates\n(collectively, the “Company_Representatives”) will be under any obligation to make any particular Confidential\nInformation available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update\nany Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has\nmade or is making any representation or warranty, express or implied, as to the accuracy or completeness of any\nConfidential Information, and neither the Company nor any of the Company Representatives will have any liability to\nthe Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any\nConfidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and\nwarranties (if any) that are included in any final definitive written agreement that provides for the consummation of a\nnegotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving\nParty and the Company will have legal effect.\n6. Standstill Agreement. In consideration of the Confidential Information being furnished to the\nReceiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of\nthis Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the\nConfidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly\nrequested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not\n(and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their\nrespective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any\nproposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner,\nbeneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company\n(including any derivative securities with economic equivalents of ownership of\n3\nany of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the\nCompany, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are\nused in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence\nany person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in\na “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to\nany voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates,\n(d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board\nof directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any\naction that could require the Company to make any public disclosure, with respect to any of the matters set forth in this\nAgreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution\nand delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or\n(g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any\nother persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request\nthe Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this\nSection 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill\nPeriod shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive\nagreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or\nmore of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its\npreviously announced strategic review process without a definitive agreement to sell the Company, (C) the Company\nmakes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization,\ninsolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such\nproceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent\nthereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the\nStandstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the\napplicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders\nmeeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses\n(), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by\nclause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).\n7. Return of Confidential Information.  Promptly upon the written request of the Company, the\nReceiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports,\nmemoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or\nreflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of\nConfidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be\nbound by their\nconfidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the\nforegoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential\nInformation (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting\nfirms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable\nlaw or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it\nis “backed-up” on its or their (as the case may be) electronic information management and communications systems or\nservers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such\ninformation so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this\nAgreement for a period of eighteen months from the date hereof.\n8. 2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012\nannual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier\nthan thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the\nCompany’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release\nannouncing the date of its 2012 annual meeting on the date such press release is publicly issued.\n9. Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses\nthe Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion\nInformation under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another\ngovernmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company\nof the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability\nof taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion\nInformation is required, furnish only such portion of the Confidential Information or Discussion Information as the\nReceiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company,\ncooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the\nConfidential Information or Discussion Information or other reliable assurance that confidential treatment will be\naccorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be\ndisclosed.\n10. Definitive Agreement.  Unless and until a definitive written agreement between the Receiving\nParty and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor\nthe Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of\nthis or any other written or oral expression by either of them or their Representatives except, in the case of this\nAgreement, for the matters specifically agreed to herein.\n11. Remedies. Each of the parties hereto acknowledges that in the event of any breach of the terms\nof this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties\nhereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction\n(which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.\n12. Communications. Without the Company’s prior written consent, which may be withheld by the\nCompany in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other\nthan through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing,\nany (a) communication concerning the Confidential Information, (b) requests for meetings with management of the\nCompany in connection with the possible Transaction or other transaction between the parties or (c) communication\nrelating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee\nof the Company.\n13. Securities Laws.  The Receiving Party acknowledges that it is aware and that the Receiving\nParty and its Representatives have been advised that the United States securities laws prohibit any person having non-\npublic material information about a company from purchasing or selling securities of that company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such\nperson is likely to purchase or sell such securities.\n14. Entire Agreement; Amendments.  This Agreement represents the entire understanding and\nagreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived\nonly by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or\nwaiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective\nsuccessors and assigns.\n15. No Waiver.  No failure or delay by either party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further\nexercise thereof or the exercise of any right, power or privilege hereunder.\n16. Governing Law. This Agreement shall be governed and construed in accordance with the laws\nof the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and\nunconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York\nfor purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any\nprocess, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall\nbe effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and\nunconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to\nthis Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally\n6\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit\nor proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State\nof New York has been brought in an inconvenient forum.\n17. Expenses. In the event of litigation relating to this Agreement, if a court of competent\njurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-\nbreaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation,\nincluding any appeal therefrom.\n18. Captions.  The Captions contained in this Agreement are for convenience only and shall not\naffect the construction or interpretation of any provisions of this Agreement.\n19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall\nbe deemed to be an original, but all of which shall constitute one and the same Agreement.\n20. Severability.  In the event any term of this Agreement is found by any court to be void or\notherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were\nabsent upon the date of its execution.\n21. Notices.  All notices and other communications required or permitted hereunder will be in\nwriting and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic\nfacsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the\naddress specified below:\nThe Talbots, Inc.\nAttention: Chief Operating Officer\nOne Talbots Drive\nHingham, MA 02043\nTelephone: 781-741-7600\nFacsimile: 781-741-4927\nwith copies to:\nThe Talbots, Inc.\nAttention: General Counsel\n211 South Ridge St.\nRye Brook, NY 10573\nTelephone: 914-934-8877\nFacsimile: 914-934-9136\nand\nDewey & LeBoeuf LLP\nAttention: Morton A. Pierce, Esq.\nChang-Do Gong, Esq.\n1301 Avenue of the Americas\nNew York, NY 10019\nTelephone: 212-259-8000\nFacsimile: 212-259-6333\n22. Non-Private Equity Affiliates. = Notwithstanding anything to the contrary provided elsewhere\nherein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and\nactivities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the\nprivate equity business and (b) the Confidential Information is not made available to Representatives of the Receiving\nParty and its affiliates who are not involved in the private equity business or who are engaged in investments that are not\nprivate equity investments and such ordinary course business services and activities are otherwise conducted without any\nreference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the\nReceiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including,\nwithout limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of\nthe United States).\n23. Termination. Except as otherwise specified herein, the obligations of the parties set forth in this\nAgreement shall terminate and be of no further force and effect eighteen months from the date hereof.\n[Remainder of Page Intentionally Left Blank]\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first\nwritten above.\nTHE TALBOTS, INC.\nBy_/s/ Richard T. O’Connell, Jr.\nName: Richard T. O’Connell, Jr.\nTitle: Executive Vice President\nSYCAMORE PARTNERS MANAGEMENT,\nL.L.C.\nBy _/s/ Stefan Kaluzny\nName: Stefan Kaluzny\nTitle: Managing Director	EX-99.(E)(4) 3 d371520dex99e4.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(4)\nSTRICTLY CONFIDENTIAL\nJanuary 27, 2012\nSycamore Partners Management, L.L.C.\n9 West 57th Street, 31st Floor\nNew York, New York 10019\nAttention:\nStefan Kaluzny\nManaging Director\nDear Mr. Kaluzny:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this "Agreement") is dated as of January 27, 2012 by and between\nSycamore Partners Management, L.L.C., a Delaware limited liability company (the "Receiving Party.") and The Talbots,\nInc., a Delaware corporation (together with its subsidiaries, the "Company.").\n1.\nConfidential Information; Representatives. (a) The Receiving Party is considering a possible\nbusiness combination transaction (whether negotiated directly with the Company's Board of Directors or otherwise) with\nrespect to the Company (the "Transaction"), and, in order to assist the Receiving Party in evaluating the possible\nTransaction, the Company is prepared to make available to the Receiving Party certain information concerning the\nbusiness, operations, strategy and prospects of the Company (all such information, the "Confidential Information"). As\na\ncondition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals,\npartners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates,\npotential sources of capita and financing, and financial advisors (collectively, "Representatives") of the Receiving Party,\nthe Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this\nAgreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.\n(b)\nThe term "Confidential Information" shall include, without limitation, any and all information\nconcerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects\nthat is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before\nor after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans,\ncompilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda,\ndocuments or other materials (in whatever form maintained or conveyed, whether\ndocumentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information\nconcerning the Company or its business, operations, strategic initiatives, financing, employees, strategies or prospects\nprepared by or on behalf of the Receiving Party, any of the Receiving Party's Representatives, the Company or any\nCompany Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives\ninvolving or relating to the Confidential Information.\n2.\nExcluded Information. The Confidential Information shall not include information that the\nReceiving\nParty\ncan\ndemonstrate\n(a)\nis\nor\nbecomes\navailable\nto\nthe\npublic\nother\nthan\nas\na\nresult\nof\nacts\nby\nthe\nReceiving\nParty or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party's possession prior\nto\ndisclosure by the Company, provided that such information, to the Receiving Party's knowledge, was not subject to\nanother confidentiality agreement with the Company or another party, (c) has been independently developed by the\nReceiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving\nParty by a third party, to the Receiving Party's knowledge, not bound by any duty or obligation of confidentiality on\na\nnon-confidential basis.\n3.\nLimitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall,\nand shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible\nTransaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in\nconfidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that\n(i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by\napplicable\nlaw,\nregulation\nor\nlegal\nor\nregulatory\nprocess;\nprovided,\nthat\nthe\nReceiving\nParty\nshall\nhave\nfirst\ncomplied\nwith the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the\nConfidential Information to the extent that the Company gives its prior written consent, and (iii) any information\ncontained in the Confidential Information may be disclosed to the Receiving Party's Representatives who reasonably\nrequire access to such information for the purpose of evaluating a possible Transaction and who agree to keep such\ninformation in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not\nmake any disclosure of any Confidential Information to any potential sources of equity financing without the Company's\nprior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the\nReceiving Party or by any of its Representatives.\n(b)\nThe Receiving Party agrees that, for a period of eighteen months from the date of this Agreement,\nthe Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly,\n(i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or\n(ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee\nof the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the\npossible Transaction or about whom the Receiving Party receives Confidential\n2\nInformation; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such\nemployees of the Company shall not be considered a solicitation or unauthorized hiring.\n(c)\nIf the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information\nby it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such\nunauthorized disclosure or use.\n4.\nNon-Disclosure of Existence of Negotiations. Without the prior written consent of the Company\nor except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not\ndisclose to any person that any discussions or negotiations are taking place between the parties concerning a possible\nTransaction, including the content, timing and status of such discussions or negotiations (the "Discussion Information").\n5.\nNo Representations by the Company. The Company will have the exclusive authority to\ndecide\nwhat Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the\nCompany nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates\n(collectively, the "Company Representatives") will be under any obligation to make any particular Confidential\nInformation available to the Receiving Party or any of the Receiving Party's Representatives or to supplement or update\nany Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has\nmade\nor\nis\nmaking\nany\nrepresentation\nor\nwarranty,\nexpress\nor\nimplied,\nas\nto\nthe\naccuracy\nor\ncompleteness\nof\nany\nConfidential Information, and neither the Company nor any of the Company Representatives will have any liability to\nthe Receiving Party or to any of the Receiving Party's Representatives relating to or resulting from the use of any\nConfidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and\nwarranties (if any) that are included in any final definitive written agreement that provides for the consummation of a\nnegotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving\nParty and the Company will have legal effect.\n6. Standstill Agreement. In consideration of the Confidential Information being furnished to the\nReceiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of\nthis Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the\nConfidential Information for the purpose of evaluating a possible Transaction, the "Standstill Period"), unless expressly\nrequested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not\n(and\nshall\ncause\nits\naffiliates\nnot\nto\nand\nshall\ncause\nits\nand\ntheir\nrespective\nRepresentatives\nacting\nat\nits\nand\ntheir\nrespective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any\nproposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner,\nbeneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company\n(including any derivative securities with economic equivalents of ownership of\n3\nany of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of\nthe\nCompany, (b) make, or in any way participate in, directly or indirectly, any "'solicitation" of "proxies" (as such terms are\nused in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence\nany person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate\nin\na\n"group"\n(within\nthe\nmeaning\nof\nSection\n13(d)(3)\nof\nthe\nSecurities\nExchange\nAct\nof\n1934,\nas\namended)\nwith\nrespect\nto\nany voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates,\n(d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board\nof directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any\naction that could require the Company to make any public disclosure, with respect to any of the matters set forth in this\nAgreement, other than the required amendment to the Receiving Party's Schedule 13D filing as a result of the execution\nand delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing\nor\n(g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any\nother persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request\nthe Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this\nSection 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill\nPeriod shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive\nagreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or\nmore\nof\nthe\nCompany's\noutstanding\nequity\nsecurities,\n(B)\nthe\nCompany\npublicly\nannounces\nthe\nconclusion\nof\nits\npreviously announced strategic review process without a definitive agreement to sell the Company, (C) the Company\nmakes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization,\ninsolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such\nproceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent\nthereto\nor\nacquiescence\ntherein,\nor\n(2)\nsuch\npetition\napplication\nor\nproceeding\nis\nnot\ndismissed\nwithin\n30\ndays\nand\n(ii)\nthe\nStandstill applicable Period time period solely for with stockholders respect to clause to nominate (b) of this directors Section for 6 election shall terminate at the Company's ten days prior 2012 to the annual expiration stockholders of the\nmeeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses\n(c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by\nclause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).\n7.\nReturn of Confidential Information. Promptly upon the written request of the Company, the\nReceiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports,\nmemoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or\nreflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of\nConfidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be\nbound by their\n4\nconfidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the\nforegoing, (a) the Receiving Party's legal department and/or outside counsel may keep one copy of the Confidential\nInformation (in electronic or paper form) and, with respect to the Receiving Party's Representatives who are accounting\nfirms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable\nlaw\nor\nregulation\nand\n(b)\nthe\nReceiving\nParty\nand\nits\nRepresentatives\nmay\nretain\nConfidential\nInformation\nto\nthe\nextent\nit\nis "backed-up" on its or their (as the case may be) electronic information management and communications systems or\nservers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such\ninformation so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this\nAgreement for a period of eighteen months from the date hereof.\n8.\n2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012\nannual stockholders meeting (with respect to the Company's fiscal year ended January 28, 2012) will be held no earlier\nthan thirty-one days after the first anniversary of the Company's 2011 annual stockholders meeting (with respect\nto\nthe\nCompany's fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release\nannouncing the date of its 2012 annual meeting on the date such press release is publicly issued.\n9.\nSubpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses\nthe Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion\nInformation under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another\ngovernmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company\nof\nthe\nexistence,\nterms\nand\ncircumstances\nsurrounding\nsuch\na\nrequest,\n(b)\nconsult\nwith\nthe\nCompany\non\nthe\nadvisability\nof taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion\nInformation is required, furnish only such portion of the Confidential Information or Discussion Information as the\nReceiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company,\ncooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the\nConfidential Information or Discussion Information or other reliable assurance that confidential treatment will be\naccorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be\ndisclosed.\n10.\nDefinitive Agreement. Unless and until a definitive written agreement between the Receiving\nParty and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor\nthe Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of\nthis or any other written or oral expression by either of them or their Representatives except, in the case of this\nAgreement, for the matters specifically agreed to herein.\n5\n11.\nRemedies. Each of the parties hereto acknowledges that in the event of any breach of the terms\nof this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties\nhereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction\n(which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.\n12. Communications. Without the Company's prior written consent, which may be withheld by the\nCompany in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other\nthan\nthrough\nthe\nCompany's\nfinancial\nand\nlegal\nadvisors\nor\nsuch\nother\npersons,\nas\ndesignated\nby\nthe\nCompany\nin\nwriting,\nany (a) communication concerning the Confidential Information, (b) requests for meetings with management of the\nCompany in connection with the possible Transaction or other transaction between the parties or (c) communication\nrelating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee\nof the Company.\n13.\nSecurities Laws. The Receiving Party acknowledges that it is aware and that the Receiving\nParty and its Representatives have been advised that the United States securities laws prohibit any person having non-\npublic\nmaterial\ninformation\nabout\na\ncompany\nfrom\npurchasing\nor\nselling\nsecurities\nof\nthat\ncompany\nor\nfrom\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such\nperson is likely to purchase or sell such securities.\n14.\nEntire Agreement; Amendments. This Agreement represents the entire understanding and\nagreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived\nonly by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying\nor\nwaiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective\nsuccessors and assigns.\n15.\nNo Waiver. No failure or delay by either party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further\nexercise thereof or the exercise of any right, power or privilege hereunder.\n16.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws\nof the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and\nunconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York\nfor purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any\nprocess, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall\nbe\neffective\nservice\nof\nprocess\nfor\nany\naction,\nsuit\nor\nproceeding\nbrought\nagainst\nsuch\nparty;\n(c)\nirrevocably\nand\nunconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to\nthis Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally\n6\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit\nor proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State\nof New York has been brought in an inconvenient forum.\n17.\nExpenses. In the event of litigation relating to this Agreement, if a court of competent\njurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-\nbreaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation,\nincluding any appeal therefrom.\n18.\nCaptions. The Captions contained in this Agreement are for convenience only and shall not\naffect the construction or interpretation of any provisions of this Agreement.\n19.\nCounterparts. This Agreement may be executed in multiple counterparts, each of which shall\nbe deemed to be an original, but all of which shall constitute one and the same Agreement.\n20.\nSeverability. In the event any term of this Agreement is found by any court to be void or\notherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were\nabsent upon the date of its execution.\n21.\nNotices. All notices and other communications required or permitted hereunder will be in\nwriting and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic\nfacsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the\naddress specified below:\nThe Talbots, Inc.\nAttention: Chief Operating Officer\nOne Talbots Drive\nHingham, MA 02043\nTelephone: 781-741-7600\nFacsimile: 781-741-4927\nwith copies to:\nThe Talbots, Inc.\nAttention: General Counsel\n211 South Ridge St.\nRye Brook, NY 10573\nTelephone: 914-934-8877\nFacsimile: 914-934-9136\nand\n7\nDewey & LeBoeuf LLP\nAttention: Morton A. Pierce, Esq.\nChang-Do Gong, Esq.\n1301 Avenue of the Americas\nNew York, NY 10019\nTelephone: 212-259-8000\nFacsimile: 212-259-6333\n22.\nNon-Private Equity Affiliates. Notwithstanding anything to the contrary provided elsewhere\nherein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and\nactivities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the\nprivate equity business and (b) the Confidential Information is not made available to Representatives of the Receiving\nParty and its affiliates who are not involved in the private equity business or who are engaged in investments\nthat\nare\nnot\nprivate equity investments and such ordinary course business services and activities are otherwise conducted without any\nreference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the\nReceiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including,\nwithout limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of\nthe United States).\n23.\nTermination. Except as otherwise specified herein, the obligations of the parties set forth in this\nAgreement shall terminate and be of no further force and effect eighteen months from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n8\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first\nwritten above.\nTHE TALBOTS, INC.\nBy/s/ /Richard T. O'Connell, Jr.\nName: Richard T. O'Connell, Jr.\nTitle: Executive Vice President\nSYCAMORE PARTNERS MANAGEMENT,\nL.L.C.\nBy/ /s/ Stefan Kaluzny\nName: Stefan Kaluzny\nTitle: Managing Director	EX-99.(E)(4) 3 d371520dex99e4.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(4)\nSTRICTLY CONFIDENTIAL\nJanuary 27, 2012\nSycamore Partners Management, L.L.C.\n9 West 57 Street, 31 Floor\nNew York, New York 10019\nAttention: Stefan Kaluzny\nManaging Director\nDear Mr. Kaluzny:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between\nSycamore Partners Management, L.L .C ., a Delaware limited liability company (the “Receiving Party”) and The Talbots,\nInc., a Delaware corporation (together with its subsidiaries, the “Company”).\n1.\nConfidential Information; Representatives. (a) The Receiving Party is considering a possible\nbusiness combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with\nrespect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible\nTransaction, the Company is prepared to make available to the Receiving Party certain information concerning the\nbusiness, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a\ncondition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals,\npartners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates,\npotential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party,\nthe Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this\nAgreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.\n(b)\nThe term “Confidential Information” shall include, without limitation, any and all information\nconcerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects\nthat is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before\nor after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans,\ncompilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda,\ndocuments or other materials (in whatever form maintained or conveyed, whether\nth\nst\ndocumentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information\nconcerning the Company or its business, operations, strategic initiatives, financing, employees, strategies or prospects\nprepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any\nCompany Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives\ninvolving or relating to the Confidential Information.\n2.\nExcluded Information.\nThe Confidential Information shall not include information that the\nReceiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving\nParty or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to\ndisclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to\nanother confidentiality agreement with the Company or another party, (c) has been independently developed by the\nReceiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving\nParty by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a\nnon-confidential basis.\n3.\nLimitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall,\nand shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible\nTransaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in\nconfidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that\n(i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by\napplicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied\nwith the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the\nConfidential Information to the extent that the Company gives its prior written consent, and (iii) any information\ncontained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably\nrequire access to such information for the purpose of evaluating a possible Transaction and who agree to keep such\ninformation in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not\nmake any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s\nprior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the\nReceiving Party or by any of its Representatives.\n(b)\nThe Receiving Party agrees that, for a period of eighteen months from the date of this Agreement,\nthe Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly,\n(i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or\n(ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee\nof the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the\npossible Transaction or about whom the Receiving Party receives Confidential\n2\nInformation; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such\nemployees of the Company shall not be considered a solicitation or unauthorized hiring.\n(c)\nIf the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information\nby it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such\nunauthorized disclosure or use.\n4.\nNon-Disclosure of Existence of Negotiations. Without the prior written consent of the Company\nor except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not\ndisclose to any person that any discussions or negotiations are taking place between the parties concerning a possible\nTransaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).\n5.\nNo Representations by the Company. The Company will have the exclusive authority to decide\nwhat Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the\nCompany nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates\n(collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential\nInformation available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update\nany Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has\nmade or is making any representation or warranty, express or implied, as to the accuracy or completeness of any\nConfidential Information, and neither the Company nor any of the Company Representatives will have any liability to\nthe Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any\nConfidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and\nwarranties (if any) that are included in any final definitive written agreement that provides for the consummation of a\nnegotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving\nParty and the Company will have legal effect.\n6.\nStandstill Agreement. In consideration of the Confidential Information being furnished to the\nReceiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of\nthis Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the\nConfidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly\nrequested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not\n(and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their\nrespective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any\nproposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner,\nbeneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company\n(including any derivative securities with economic equivalents of ownership of\n3\nany of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the\nCompany, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are\nused in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence\nany person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in\na “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to\nany voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates,\n(d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board\nof directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any\naction that could require the Company to make any public disclosure, with respect to any of the matters set forth in this\nAgreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution\nand delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or\n(g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any\nother persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request\nthe Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this\nSection 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill\nPeriod shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive\nagreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or\nmore of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its\npreviously announced strategic review process without a definitive agreement to sell the Company, (C) the Company\nmakes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization,\ninsolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such\nproceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent\nthereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the\nStandstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the\napplicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders\nmeeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses\n(c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by\nclause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).\n7.\nReturn of Confidential Information.\nPromptly upon the written request of the Company, the\nReceiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports,\nmemoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or\nreflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of\nConfidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be\nbound by their\n4\nconfidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the\nforegoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential\nInformation (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting\nfirms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable\nlaw or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it\nis “backed-up” on its or their (as the case may be) electronic information management and communications systems or\nservers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such\ninformation so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this\nAgreement for a period of eighteen months from the date hereof.\n8.\n2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012\nannual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier\nthan thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the\nCompany’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release\nannouncing the date of its 2012 annual meeting on the date such press release is publicly issued.\n9.\nSubpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses\nthe Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion\nInformation under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another\ngovernmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company\nof the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability\nof taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion\nInformation is required, furnish only such portion of the Confidential Information or Discussion Information as the\nReceiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company,\ncooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the\nConfidential Information or Discussion Information or other reliable assurance that confidential treatment will be\naccorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be\ndisclosed.\n10.\nDefinitive Agreement. Unless and until a definitive written agreement between the Receiving\nParty and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor\nthe Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of\nthis or any other written or oral expression by either of them or their Representatives except, in the case of this\nAgreement, for the matters specifically agreed to herein.\n5\n11.\nRemedies. Each of the parties hereto acknowledges that in the event of any breach of the terms\nof this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties\nhereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction\n(which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.\n12.\nCommunications. Without the Company’s prior written consent, which may be withheld by the\nCompany in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other\nthan through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing,\nany (a) communication concerning the Confidential Information, (b) requests for meetings with management of the\nCompany in connection with the possible Transaction or other transaction between the parties or (c) communication\nrelating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee\nof the Company.\n13.\nSecurities Laws.\nThe Receiving Party acknowledges that it is aware and that the Receiving\nParty and its Representatives have been advised that the United States securities laws prohibit any person having non-\npublic material information about a company from purchasing or selling securities of that company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such\nperson is likely to purchase or sell such securities.\n14.\nEntire Agreement; Amendments.\nThis Agreement represents the entire understanding and\nagreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived\nonly by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or\nwaiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective\nsuccessors and assigns.\n15.\nNo Waiver.\nNo failure or delay by either party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further\nexercise thereof or the exercise of any right, power or privilege hereunder.\n16.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws\nof the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and\nunconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York\nfor purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any\nprocess, summons, notice or document by U.S . registered mail to the address set forth at the end of this Agreement shall\nbe effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and\nunconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to\nthis Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally\n6\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit\nor proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State\nof New York has been brought in an inconvenient forum.\n17.\nExpenses.\nIn the event of litigation relating to this Agreement, if a court of competent\njurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-\nbreaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation,\nincluding any appeal therefrom.\n18.\nCaptions.\nThe Captions contained in this Agreement are for convenience only and shall not\naffect the construction or interpretation of any provisions of this Agreement.\n19.\nCounterparts. This Agreement may be executed in multiple counterparts, each of which shall\nbe deemed to be an original, but all of which shall constitute one and the same Agreement.\n20.\nSeverability. In the event any term of this Agreement is found by any court to be void or\notherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were\nabsent upon the date of its execution.\n21.\nNotices.\nAll notices and other communications required or permitted hereunder will be in\nwriting and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic\nfacsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the\naddress specified below:\nThe Talbots, Inc.\nAttention: Chief Operating Officer\nOne Talbots Drive\nHingham, MA 02043\nTelephone: 781-741-7600\nFacsimile: 781-741-4927\nwith copies to:\nThe Talbots, Inc.\nAttention: General Counsel\n211 South Ridge St.\nRye Brook, NY 10573\nTelephone: 914-934-8877\nFacsimile: 914-934-9136\nand\n7\nDewey & LeBoeuf LLP\nAttention: Morton A. Pierce, Esq.\nChang-Do Gong, Esq.\n1301 Avenue of the Americas\nNew York, NY 10019\nTelephone: 212-259-8000\nFacsimile: 212-259-6333\n22.\nNon-Private Equity Affiliates.\nNotwithstanding anything to the contrary provided elsewhere\nherein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and\nactivities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the\nprivate equity business and (b) the Confidential Information is not made available to Representatives of the Receiving\nParty and its affiliates who are not involved in the private equity business or who are engaged in investments that are not\nprivate equity investments and such ordinary course business services and activities are otherwise conducted without any\nreference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the\nReceiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including,\nwithout limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of\nthe United States).\n23.\nTermination. Except as otherwise specified herein, the obligations of the parties set forth in this\nAgreement shall terminate and be of no further force and effect eighteen months from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n8\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first\nwritten above.\nTHE TALBOTS, INC.\nBy /s/ Richard T. O’Connell, Jr.\nName: Richard T. O’Connell, Jr.\nTitle: Executive Vice President\nSYCAMORE PARTNERS MANAGEMENT,\nL.L.C .\nBy /s/ Stefan Kaluzny\nName: Stefan Kaluzny\nTitle: Managing Director
+793475447d7392c0241fcc48bdbc4f81.pdf	effective_date jurisdiction party term	NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into this 2nd day of February, 2006 by and between Sun Energy Solar, Inc.,\na Delaware company having an address at 6408 Parkland Drive, Suite 104, Sarasota, Florida 34243, United States of America (“Company”), and\nRobert Fugerer, an individual residing in the state of Florida, and having an address at 4819 Sky Blue Drive, Lutz, FL 33558(“Recipient”).\nRECITALS\nA. Company and Recipient have initiated or intend to initiate discussions concerning the possibility of entering into a mutually advantageous\nbusiness relationship whereby Recipient shall perform certain services on behalf of and for the benefit of Company (the “Limited Purpose”).\nB. To facilitate the disclosure of certain Confidential Information (as defined below) by Company to Recipient, the parties desire to enter into\nthis Agreement.\nAGREEMENT\nNow therefore, in consideration of the foregoing recitals, which are hereby incorporated into this Agreement by reference, and the mutual\ncovenants and agreements contained herein, and other good and valuable consideration, the adequacy and receipt of which is hereby acknowledged,\nthe parties agree as follows:\n1. Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meanings:\n(a) “Confidential Information” mean any information, whether written, oral, magnetic, photographic, optical, or other form, tangible or\nintangible, which has been, or after the date hereof will be, furnished or disclosed by Company, or its employees, consultants, representatives\nor agents, or which Recipient may have access to in connection with the Limited Purpose, which has been designated as being confidential, or\nwhich under the circumstances of disclosure reasonably ought to be treated as confidential, including but not limited to any information\npertaining to or regarding the business, financial condition, pricing, sales, strategies, plans, customers, suppliers, properties and operations of\nCompany (including such information visually available to Recipient at Company’s premises or Company presentations), and including\nwithout limitation all technical information of any nature whatsoever and all business plans, inventions, trade secrets, know-how,\nmethodologies, concepts, techniques, discoveries, computer programs (including functionality and source code), processes, drawings, designs,\nresearch, plans or specifications relating thereto.\n(b) “Related Party” or “Related Parties” shall mean the directors, officers, employees, legal, tax and other professional advisors or\nconsultants of Recipient, to the extent such entities or persons receive Confidential Information.\n2. Non-Disclosure and Restricted Use of Confidential Information.\n(a) Recipient shall keep in strictest confidence and trust all Confidential Information and, except upon the express prior written consent\nof Company, Recipient shall (i) not disclose any Confidential Information to any other entity or person, and (ii) use the Confidential\nInformation solely as necessary to implement the Limited Purpose and not for Recipient’s own benefit or for the benefit of any other entity or\nperson. Recipient shall take all reasonable safeguards to prevent the disclosure or misuse of the Confidential Information, including without\nlimitation such measures as the Recipient takes to safeguard its own confidential information, and shall not photocopy, transcribe or otherwise\nreproduce or modify any of the Confidential Information except as necessary to implement the Limited Purpose or otherwise upon the express\nwritten consent of the Company.\n10\n(b) Recipient may disclose the Confidential Information to Related Parties on a “need to know” basis only. Recipient shall inform all\nRelated Parties who have access to the Confidential Information that such Confidential Information is confidential and proprietary to Company\nand shall require each such Related Party to agree to restrictions and obligations at least as strict as those set forth herein prior to disclosure of\nany Confidential Information. Recipient shall diligently enforce any and all confidentiality agreements with Related Parties and shall be\nresponsible and liable for any breach of the confidentiality obligations and restrictions on use set forth herein by any Related Party.\n(c) The obligations of Recipient stated in the preceding paragraphs of this Section 2 shall not apply to information that (i) is or becomes\ngenerally known or available to the public through no wrongful act of the Recipient; (ii) was in the Recipient's possession at the time of\ndisclosure or receipt, as evidenced and verified by prior tangible evidence, and was not acquired under an obligation of confidence;\n(iii) Recipient demonstrates was rightfully received by it from a third party after the time it was disclosed or obtained hereunder, provided that\nsuch third party was not under an obligation of confidence with the Company at the time of the third party’s disclosure to Recipient; (iv) is\nindependently developed by Recipient without use of or reference to the Confidential Information and without breach of this Agreement, as\nevidenced and verified by prior tangible evidence; or (v) is required to be disclosed in a judicial or administrative proceeding, or as otherwise\nrequired to be disclosed by law, in any such case after all reasonable legal remedies for maintaining such information in confidence have been\nexhausted, including, but not limited to, giving Company as much advance notice of the possibility of such disclosure as practical so Company\nmay attempt to stop such disclosure or obtain a protective order concerning such disclosure. Recipient shall provide Company with written\nnotice no less than five (5) days prior to the disclosure or use of any information of Company pursuant to this Section 2(c), subsections\n(i) through (v).\n(d) Recipient shall (i) notify Company immediately of any unauthorized possession, use or knowledge of the Confidential Information,\n(ii) promptly furnish Company full details of such possession, use or knowledge, and (iii) cooperate with Company against third parties as may\nbe deemed necessary by Company to protect its proprietary rights in the Confidential Information.\n3. Term of Agreement. This Agreement shall be effective as of the date of first disclosure of Confidential Information and may be terminated,\nwithout cause, with respect to future disclosures upon thirty (30) days prior written notice to the other party; provided however, that all rights and\nobligations accrued prior to such termination shall survive the termination of this Agreement. Notwithstanding anything herein to the contrary, the\nnondisclosure obligations and restrictions on use with respect to any Confidential Information shall continue and bind Recipient for a period of five\n(5) years after the date of the last disclosure of Confidential Information hereunder, except that the nondisclosure obligations and restrictions on use\nwith respect to any Confidential Information that constitutes a trade secret shall continue in effect for so long as the Confidential Information\nremains a trade secret under applicable law. Any termination or expiration of this Agreement shall be without prejudice to the rights of Company\nagainst Recipient in respect of any claim or breach of any of the provisions of this Agreement.\n4. Return of Confidential Information. Recipient shall return to Company, or at Company’s request, destroy, and shall cause its Related Parties\nto return or destroy, the Confidential Information and all copies, transcriptions or other reproductions of, and any notes relating to, the Confidential\nInformation, including without limitation, any memoranda, photocopies, computer files and libraries, computer-generated data or other similar\nrepositories or archives, upon (i) the accomplishment of the purpose for which the Confidential Information was provided, or (ii) receipt of a written\nnotice from Company requesting return or destruction of the Confidential Information, and upon request, shall provide to Company written\ncertification signed by an officer of Recipient that it has complied with the foregoing.\n5. Ownership.\n(a) All Confidential Information is and shall remain the property of Company. By disclosing Confidential Information to Recipient,\nCompany does not grant any express or implied right to Recipient to or under any patents, copyrights, trademarks, or trade secret information\nexcept as\n11\nrequired to implement the Limited Purpose. Company reserves without prejudice the ability to protect its rights under any such patents,\ncopyrights, trademarks, or trade secrets. Recipient shall not remove any proprietary, copyright, trade secret or other legend from any form of\nthe Confidential Information. Recipient shall, at the reasonable written request of Company and at Company’s expense, add to the Confidential\nInformation any proprietary, copyright, trade secret or other legend or modify the same, which Company deems necessary to protect its\nintellectual property rights. Without limiting the foregoing, Company shall retain all right, title, and interest in and to all forms of Confidential\nInformation delivered or disclosed hereunder, including, without limitation, any patents, copyrights, trademarks, service marks, trade dress,\nlogos, technical information, know-how, trade secrets, and any modifications or enhancements thereto (whether developed by Company,\nRecipient, any Related Party, or on either party’s behalf) or other intellectual property rights throughout the world, whether currently existing\nor hereafter developed or acquired, and all applications, disclosures and registrations with respect thereto (collectively, “IP Rights”). If\nRecipient or any third party engaged by Recipient is deemed to have any ownership interest or rights in any IP Rights in the Confidential\nInformation, then Recipient, for no additional consideration, shall assign and/or cause such third party to assign, and Recipient does hereby\nassign, all of such ownership interest and rights exclusively and irrevocably to Company. Recipient shall cooperate with Company and shall\ncause to be executed all such instruments and documents as Company reasonably may request in connection with such assignments and shall\ndo all other lawfully permitted acts reasonably required to further the intent of this Section 5; provided, however, this Agreement shall be\neffective regardless of whether any such additional documents are executed. Recipient shall not dispute or contest, directly or indirectly,\nCompany’s right, title and interest in or to, or the validity and enforceability of, any IP Rights in the Confidential Information (including the\nattempt to register or record the same in any jurisdiction). Notwithstanding anything herein to the contrary, this Section 5 shall survive any\ntermination or expiration of this Agreement.\n(b) Recipient may from time to time provide suggestions, comments or other feedback (“Feedback”) to Company with respect to the\nConfidential Information. Both parties agree that all Feedback is and shall be given entirely voluntarily. Recipient shall not give Feedback that\nis subject to license terms that seek to require any Company product, technology, service or documentation incorporating or derived from such\nFeedback, or any Company intellectual property, to be licensed or otherwise shared with any third party. Recipient hereby acknowledges and\nagrees that all Feedback shall be deemed Confidential Information of Company, subject to the obligations of confidentiality and restricted use\nprovided under this Agreement. Furthermore, Recipient hereby acknowledges and agrees that Company shall have the exclusive right to use,\ndisclose, reproduce, license or otherwise distribute, and exploit the Feedback as Company sees fit, entirely without obligation or restriction of\nany kind on account of intellectual property rights or otherwise.\n6. Accuracy and Completeness of Confidential Information. The disclosure of any Confidential Information to Recipient shall be solely in\nCompany’s discretion. This Agreement shall not require Company to disclose any information or to require the consummation of any transaction in\nconnection with which the Confidential Information is disclosed. Notwithstanding anything to the contrary, Company shall not be deemed to have\nmade any representation or warranty to Recipient concerning the accuracy or completeness of any Confidential Information, except to the extent that\nsuch representation or warranty may be expressly set forth in a definitive written agreement concerning any subsequent business relationship.\n7. Independent Contractors. Neither this Agreement, nor any terms and conditions contained herein, will be construed as creating a partnership,\njoint venture, or agency relationship or as granting a franchise. The parties are independent contractors each acting for its own account, and neither is\nauthorized to make any commitment or representation, express or implied, on the other’s behalf.\n8. Remedies. Recipient acknowledges and agrees that Company would be irreparably harmed if any of the Confidential Information were to be\ndisclosed to third parties, or if any use were to be made of the Confidential Information other than that specified in this Agreement, and further\nagrees that Company shall have the right to seek and obtain injunctive relief upon any violation or threatened violation of the terms of this\nAgreement\n12\nwithout the necessity of posting bond or other security, in addition to all other rights and remedies available to Company at law or in equity. Any\ntrade secrets of the Company will be entitled to all of the protections and benefits under the applicable Uniform Trade Secrets Act and any other\napplicable law. If any information that Company deems to be a trade secret is found by a court of competent jurisdiction not to be a trade secret for\npurposes of this Agreement, such information nevertheless will be considered Confidential Information for purposes of this Agreement. Recipient\nhereby waives any requirement that the Company submit proof of the economic value of any trade secret.\n9. Indemnity. Recipient shall indemnify Company for and against all damages, losses, claims, costs (including reasonable attorneys’ fees),\nexpenses and liabilities, suffered or incurred as a direct or indirect result of Recipient failing (whether intentionally or not) to fully comply with its\ncovenants and obligations under this Agreement, including by virtue of any act of any Related Party.\n10. Entire Agreement. This Agreement sets forth the complete and exclusive understanding of the parties regarding the subject matter of this\nAgreement and supersedes all prior agreements, understandings, and communications, oral or written, between the parties regarding the subject\nmatter of this Agreement. This Agreement is not, however, intended to limit any rights that Company may have under trade secret, copyright, patent,\ntrademark or other laws that may apply to the subject matter of this Agreement both during and after the term of this Agreement.\n11. Amendments. No amendment or waiver of any term of this Agreement shall be effective unless such amendment or waiver is in writing\nand is signed by each of the parties hereto.\n12. Assignment. Recipient shall not assign or transfer, in whole or in part and whether by contract or operation of law, this Agreement, or any\nrights or obligations hereunder, without the prior written consent of Company. Subject to the foregoing, this Agreement shall be binding upon, and\nshall inure to the benefit of, the parties and their respective representatives, successors and assigns.\n13. Attorneys’ Fees. If any party shall commence any action or proceeding against the other in order to enforce the provisions of this\nAgreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing party therein shall be\nentitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the party who has breached this\nAgreement, as the case may be, including reasonable attorneys’ fees.\n14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, other than such\nlaws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Florida. Any suit to\nenforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in the United States District\nCourt for the District of Florida or the District Court in and for the city of Sarasota and the County of Sarasota, State of Florida. Each party hereby\nagrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party hereby submits to the in personam\njurisdiction and venue of such courts.\n15. Severability. If any provision of the Agreement shall be held by a court competent jurisdiction to be illegal, invalid or unenforceable, the\nparties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties’ intentions and the remaining\nprovisions shall remain in full force and effect.\n[SIGNATURE PAGE FOLLOWS]\n13\nThis Agreement has been executed as of the date first set forth above.\nSun Energy Solar, Inc.\nBy: /s/ Carl L. Smith\nTitle: CEO\nDate: July 10, 2006\nRecipient\nSignature: /s/ Robert Fugerer\nPrinted: Robert Fugerer\nDate:\nFebruary 18, 2006\n14	NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into this 2nd day of February, 2006 by and between Sun Energy Solar, Inc.,\na Delaware company having an address at 6408 Parkland Drive, Suite 104, Sarasota, Florida 34243, United States of America (“Company”), and\nRobert Fugerer, an individual residing in the state of Florida, and having an address at 4819 Sky Blue Drive, Lutz, FL 33558(“Recipient”).\nRECITALS\nA. Company and Recipient have initiated or intend to initiate discussions concerning the possibility of entering into a mutually advantageous\nbusiness relationship whereby Recipient shall perform certain services on behalf of and for the benefit of Company (the “Limited Purpose”).\nB. To facilitate the disclosure of certain Confidential Information (as defined below) by Company to Recipient, the parties desire to enter into\nthis Agreement.\nAGREEMENT\nNow therefore, in consideration of the foregoing recitals, which are hereby incorporated into this Agreement by reference, and the mutual\ncovenants and agreements contained herein, and other good and valuable consideration, the adequacy and receipt of which is hereby acknowledged,\nthe parties agree as follows:\n1. Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meanings:\n(a) “Confidential Information” mean any information, whether written, oral, magnetic, photographic, optical, or other form, tangible or\nintangible, which has been, or after the date hereof will be, furnished or disclosed by Company, or its employees, consultants, representatives\nor agents, or which Recipient may have access to in connection with the Limited Purpose, which has been designated as being confidential, or\nwhich under the circumstances of disclosure reasonably ought to be treated as confidential, including but not limited to any information\npertaining to or regarding the business, financial condition, pricing, sales, strategies, plans, customers, suppliers, properties and operations of\nCompany (including such information visually available to Recipient at Company’s premises or Company presentations), and including\nwithout limitation all technical information of any nature whatsoever and all business plans, inventions, trade secrets, know-how,\nmethodologies, concepts, techniques, discoveries, computer programs (including functionality and source code), processes, drawings, designs,\nresearch, plans or specifications relating thereto.\n(b) “Related Party” or “Related Parties” shall mean the directors, officers, employees, legal, tax and other professional advisors or\nconsultants of Recipient, to the extent such entities or persons receive Confidential Information.\n2. Non-Disclosure and Restricted Use of Confidential Information.\n(a) Recipient shall keep in strictest confidence and trust all Confidential Information and, except upon the express prior written consent\nof Company, Recipient shall (i) not disclose any Confidential Information to any other entity or person, and (ii) use the Confidential\nInformation solely as necessary to implement the Limited Purpose and not for Recipient’s own benefit or for the benefit of any other entity or\nperson. Recipient shall take all reasonable safeguards to prevent the disclosure or misuse of the Confidential Information, including without\nlimitation such measures as the Recipient takes to safeguard its own confidential information, and shall not photocopy, transcribe or otherwise\nreproduce or modify any of the Confidential Information except as necessary to implement the Limited Purpose or otherwise upon the express\nwritten consent of the Company.\n10\n(b) Recipient may disclose the Confidential Information to Related Parties on a “need to know” basis only. Recipient shall inform all\nRelated Parties who have access to the Confidential Information that such Confidential Information is confidential and proprietary to Company\nand shall require each such Related Party to agree to restrictions and obligations at least as strict as those set forth herein prior to disclosure of\nany Confidential Information. Recipient shall diligently enforce any and all confidentiality agreements with Related Parties and shall be\nresponsible and liable for any breach of the confidentiality obligations and restrictions on use set forth herein by any Related Party.\n(c) The obligations of Recipient stated in the preceding paragraphs of this Section 2 shall not apply to information that (i) is or becomes\ngenerally known or available to the public through no wrongful act of the Recipient; (ii) was in the Recipient's possession at the time of\ndisclosure or receipt, as evidenced and verified by prior tangible evidence, and was not acquired under an obligation of confidence;\n(iii) Recipient demonstrates was rightfully received by it from a third party after the time it was disclosed or obtained hereunder, provided that\nsuch third party was not under an obligation of confidence with the Company at the time of the third party’s disclosure to Recipient; (iv) is\nindependently developed by Recipient without use of or reference to the Confidential Information and without breach of this Agreement, as\nevidenced and verified by prior tangible evidence; or (v) is required to be disclosed in a judicial or administrative proceeding, or as otherwise\nrequired to be disclosed by law, in any such case after all reasonable legal remedies for maintaining such information in confidence have been\nexhausted, including, but not limited to, giving Company as much advance notice of the possibility of such disclosure as practical so Company\nmay attempt to stop such disclosure or obtain a protective order concerning such disclosure. Recipient shall provide Company with written\nnotice no less than five (5) days prior to the disclosure or use of any information of Company pursuant to this Section 2(c), subsections\n(i) through (v).\n(d) Recipient shall (i) notify Company immediately of any unauthorized possession, use or knowledge of the Confidential Information,\n(ii) promptly furnish Company full details of such possession, use or knowledge, and (iii) cooperate with Company against third parties as may\nbe deemed necessary by Company to protect its proprietary rights in the Confidential Information.\n3. Term of Agreement. This Agreement shall be effective as of the date of first disclosure of Confidential Information and may be terminated,\nwithout cause, with respect to future disclosures upon thirty (30) days prior written notice to the other party; provided however, that all rights and\nobligations accrued prior to such termination shall survive the termination of this Agreement. Notwithstanding anything herein to the contrary, the\nnondisclosure obligations and restrictions on use with respect to any Confidential Information shall continue and bind Recipient for a period of five\n(5) years after the date of the last disclosure of Confidential Information hereunder, except that the nondisclosure obligations and restrictions on use\nwith respect to any Confidential Information that constitutes a trade secret shall continue in effect for so long as the Confidential Information\nremains a trade secret under applicable law. Any termination or expiration of this Agreement shall be without prejudice to the rights of Company\nagainst Recipient in respect of any claim or breach of any of the provisions of this Agreement.\n4. Return of Confidential Information. Recipient shall return to Company, or at Company’s request, destroy, and shall cause its Related Parties\nto return or destroy, the Confidential Information and all copies, transcriptions or other reproductions of, and any notes relating to, the Confidential\nInformation, including without limitation, any memoranda, photocopies, computer files and libraries, computer-generated data or other similar\nrepositories or archives, upon (i) the accomplishment of the purpose for which the Confidential Information was provided, or (ii) receipt of a written\nnotice from Company requesting return or destruction of the Confidential Information, and upon request, shall provide to Company written\ncertification signed by an officer of Recipient that it has complied with the foregoing.\n5. Ownership.\n(a) All Confidential Information is and shall remain the property of Company. By disclosing Confidential Information to Recipient,\nCompany does not grant any express or implied right to Recipient to or under any patents, copyrights, trademarks, or trade secret information\nexcept as\n11\nrequired to implement the Limited Purpose. Company reserves without prejudice the ability to protect its rights under any such patents,\ncopyrights, trademarks, or trade secrets. Recipient shall not remove any proprietary, copyright, trade secret or other legend from any form of\nthe Confidential Information. Recipient shall, at the reasonable written request of Company and at Company’s expense, add to the Confidential\nInformation any proprietary, copyright, trade secret or other legend or modify the same, which Company deems necessary to protect its\nintellectual property rights. Without limiting the foregoing, Company shall retain all right, title, and interest in and to all forms of Confidential\nInformation delivered or disclosed hereunder, including, without limitation, any patents, copyrights, trademarks, service marks, trade dress,\nlogos, technical information, know-how, trade secrets, and any modifications or enhancements thereto (whether developed by Company,\nRecipient, any Related Party, or on either party’s behalf) or other intellectual property rights throughout the world, whether currently existing\nor hereafter developed or acquired, and all applications, disclosures and registrations with respect thereto (collectively, “IP Rights”). If\nRecipient or any third party engaged by Recipient is deemed to have any ownership interest or rights in any IP Rights in the Confidential\nInformation, then Recipient, for no additional consideration, shall assign and/or cause such third party to assign, and Recipient does hereby\nassign, all of such ownership interest and rights exclusively and irrevocably to Company. Recipient shall cooperate with Company and shall\ncause to be executed all such instruments and documents as Company reasonably may request in connection with such assignments and shall\ndo all other lawfully permitted acts reasonably required to further the intent of this Section 5; provided, however, this Agreement shall be\neffective regardless of whether any such additional documents are executed. Recipient shall not dispute or contest, directly or indirectly,\nCompany’s right, title and interest in or to, or the validity and enforceability of, any IP Rights in the Confidential Information (including the\nattempt to register or record the same in any jurisdiction). Notwithstanding anything herein to the contrary, this Section 5 shall survive any\ntermination or expiration of this Agreement.\n(b) Recipient may from time to time provide suggestions, comments or other feedback (“Feedback”) to Company with respect to the\nConfidential Information. Both parties agree that all Feedback is and shall be given entirely voluntarily. Recipient shall not give Feedback that\nis subject to license terms that seek to require any Company product, technology, service or documentation incorporating or derived from such\nFeedback, or any Company intellectual property, to be licensed or otherwise shared with any third party. Recipient hereby acknowledges and\nagrees that all Feedback shall be deemed Confidential Information of Company, subject to the obligations of confidentiality and restricted use\nprovided under this Agreement. Furthermore, Recipient hereby acknowledges and agrees that Company shall have the exclusive right to use,\ndisclose, reproduce, license or otherwise distribute, and exploit the Feedback as Company sees fit, entirely without obligation or restriction of\nany kind on account of intellectual property rights or otherwise.\n6. Accuracy and Completeness of Confidential Information. The disclosure of any Confidential Information to Recipient shall be solely in\nCompany’s discretion. This Agreement shall not require Company to disclose any information or to require the consummation of any transaction in connection with which the Confidential Information is disclosed. Notwithstanding anything to the contrary, Company shall not be deemed to have made any representation or warranty to Recipient concerning the accuracy or completeness of any Confidential Information, except to the extent that such representation or warranty may be expressly set forth in a definitive written agreement concerning any subsequent business relationship. 7. Independent Contractors. Neither this Agreement, nor any terms and conditions contained herein, will be construed as creating a partnership,\njoint venture, or agency relationship or as granting a franchise. The parties are independent contractors each acting for its own account, and neither is authorized to make any commitment or representation, express or implied, on the other’s behalf. 8. Remedies. Recipient acknowledges and agrees that Company would be irreparably harmed if any of the Confidential Information were to be\ndisclosed to third parties, or if any use were to be made of the Confidential Information other than that specified in this Agreement, and further agrees that Company shall have the right to seek and obtain injunctive relief upon any violation or threatened violation of the terms of this Agreement 12\nwithout the necessity of posting bond or other security, in addition to all other rights and remedies available to Company at law or in equity. Any\ntrade secrets of the Company will be entitled to all of the protections and benefits under the applicable Uniform Trade Secrets Act and any other\napplicable law. If any information that Company deems to be a trade secret is found by a court of competent jurisdiction not to be a trade secret for\npurposes of this Agreement, such information nevertheless will be considered Confidential Information for purposes of this Agreement. Recipient\nhereby waives any requirement that the Company submit proof of the economic value of any trade secret.\n9. Indemnity. Recipient shall indemnify Company for and against all damages, losses, claims, costs (including reasonable attorneys’ fees),\nexpenses and liabilities, suffered or incurred as a direct or indirect result of Recipient failing (whether intentionally or not) to fully comply with its\ncovenants and obligations under this Agreement, including by virtue of any act of any Related Party.\n10. Entire Agreement. This Agreement sets forth the complete and exclusive understanding of the parties regarding the subject matter of this\nAgreement and supersedes all prior agreements, understandings, and communications, oral or written, between the parties regarding the subject\nmatter of this Agreement. This Agreement is not, however, intended to limit any rights that Company may have under trade secret, copyright, patent,\ntrademark or other laws that may apply to the subject matter of this Agreement both during and after the term of this Agreement.\n11. Amendments. No amendment or waiver of any term of this Agreement shall be effective unless such amendment or waiver is in writing\nand is signed by each of the parties hereto.\n12. Assignment. Recipient shall not assign or transfer, in whole or in part and whether by contract or operation of law, this Agreement, or any\nrights or obligations hereunder, without the prior written consent of Company. Subject to the foregoing, this Agreement shall be binding upon, and\nshall inure to the benefit of, the parties and their respective representatives, successors and assigns.\n13. Attorneys’ Fees. If any party shall commence any action or proceeding against the other in order to enforce the provisions of this\nAgreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing party therein shall be\nentitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the party who has breached this\nAgreement, as the case may be, including reasonable attorneys’ fees.\n14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, other than such\nlaws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Florida. Any suit to\nenforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in the United States District\nCourt for the District of Florida or the District Court in and for the city of Sarasota and the County of Sarasota, State of Florida. Each party hereby\nagrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party hereby submits to the in personam\njurisdiction and venue of such courts.\n15. Severability. If any provision of the Agreement shall be held by a court competent jurisdiction to be illegal, invalid or unenforceable, the\nparties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties’ intentions and the remaining\nprovisions shall remain in full force and effect.\n[SIGNATURE PAGE FOLLOWS]\n13\nThis Agreement has been executed as of the date first set forth above.\n14\nSun Energy Solar, Inc.\nBy: /s/Carl L. Smith\nTitle: CEO\nDate: July 10, 2006\nRecipient\nSignature: /s/ Robert Fugerer\nPrinted: Robert Fugerer\nDate: February 18, 2006	NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT ("Agreement") is entered into this 2nd day of February, 2006 by and between Sun Energy Solar, Inc.,\na Delaware company having an address at 6408 Parkland Drive, Suite 104, Sarasota, Florida 34243, United States of America ("Company"),\nand\nRobert Fugerer, an individual residing in the state of Florida, and having an address at 4819 Sky Blue Drive, Lutz, FL 3558("Recipient").\nRECITALS\nA. Company and Recipient have initiated or intend to initiate discussions concerning the possibility of entering into a mutually advantageous\nbusiness relationship whereby Recipient shall perform certain services on behalf of and for the benefit of Company (the "Limited Purpose").\nB. To facilitate the disclosure of certain Confidential Information (as defined below) by Company to Recipient, the parties desire to enter into\nthis Agreement.\nAGREEMENT\nNow therefore, in consideration of the foregoing recitals, which are hereby incorporated into this Agreement by reference, and the mutual\ncovenants and agreements contained herein, and other good and valuable consideration, the adequacy and receipt of which is hereby acknowledged,\nthe parties agree as follows:\n1. Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meanings:\n(a) "Confidential Information" mean any information, whether written, oral, magnetic, photographic, optical, or other form, tangible or\nintangible, which has been, or after the date hereof will be, furnished or disclosed by Company, or its employees, consultants, representatives\nor agents, or which Recipient may have access to in connection with the Limited Purpose, which has been designated as being confidential, or\nwhich under the circumstances of disclosure reasonably ought to be treated as confidential, including but not limited to any information\npertaining to or regarding the business, financial condition, pricing, sales, strategies, plans, customers, suppliers, properties and operations of\nCompany (including such information visually available to Recipient at Company's premises or Company presentations), and including\nwithout limitation all technical information of any nature whatsoever and all business plans, inventions, trade secrets, know-how,\nmethodologies, concepts, techniques, discoveries, computer programs (including functionality and source code), processes, drawings, designs,\nresearch, plans or specifications relating thereto.\n(b) "Related Party" or "Related Parties" shall mean the directors, officers, employees, legal, tax and other professional advisors or\nconsultants of Recipient, to the extent such entities or persons receive Confidential Information.\n2. Non-Disclosure and Restricted Use of Confidential Information.\n(a) Recipient shall keep in strictest confidence and trust all Confidential Information and, except upon the express prior written consent\nof Company, Recipient shall (i) not disclose any Confidential Information to any other entity or person, and (ii) use the Confidential\nInformation solely as necessary to implement the Limited Purpose and not for Recipient's own benefit or for the benefit of any other entity or\nperson. Recipient shall take all reasonable safeguards to prevent the disclosure or misuse of the Confidential Information, including without\nlimitation such measures as the Recipient takes to safeguard its own confidential information, and shall not photocopy, transcribe or otherwise\nreproduce or modify any of the Confidential Information except as necessary to implement the Limited Purpose or otherwise upon the express\nwritten consent of the Company.\n10\n(b) Recipient may disclose the Confidential Information to Related Parties on a "need to know" basis only. Recipient shall inform all\nRelated Parties who have access to the Confidential Information that such Confidential Information is confidential and proprietary to Company\nand shall require each such Related Party to agree to restrictions and obligations at least as strict as those set forth herein prior to disclosure of\nany Confidential Information. Recipient shall diligently enforce any and all confidentiality agreements with Related Parties and shall be\nresponsible and liable for any breach of the confidentiality obligations and restrictions on use set forth herein by any Related Party.\n(c) The obligations of Recipient stated in the preceding paragraphs of this Section 2 shall not apply to information that (i) is or becomes\ngenerally known or available to the public through no wrongful act of the Recipient; (ii) was in the Recipient's possession at the time of\ndisclosure or receipt, as evidenced and verified by prior tangible evidence, and was not acquired under an obligation of confidence;\n(iii) Recipient demonstrates was rightfully received by it from a third party after the time it was disclosed or obtained hereunder, provided that\nsuch third party was not under an obligation of confidence with the Company at the time of the third party's disclosure to Recipient; (iv) is\nindependently developed by Recipient without use of or reference to the Confidential Information and without breach of this Agreement, as\nevidenced and verified by prior tangible evidence; or (v) is required to be disclosed in a judicial or administrative proceeding, or as otherwise\nrequired to be disclosed by law, in any such case after all reasonable legal remedies for maintaining such information in confidence have been\nexhausted, including, but not limited to, giving Company as much advance notice of the possibility of such disclosure as practical so Company\nmay attempt to stop such disclosure or obtain a protective order concerning such disclosure. Recipient shall provide Company with written\nnotice no less than five (5) days prior to the disclosure or use of any information of Company pursuant to this Section 2(c), subsections\n(i) through (v).\n(d) Recipient shall (i) notify Company immediately of any unauthorized possession, use or knowledge of the Confidential Information,\n(ii) promptly furnish Company full details of such possession, use or knowledge, and (iii) cooperate with Company against third parties as may\nbe deemed necessary by Company to protect its proprietary rights in the Confidential Information.\n3. Term of Agreement. This Agreement shall be effective as of the date of first disclosure of Confidential Information and may be terminated,\nwithout cause, with respect to future disclosures upon thirty (30) days prior written notice to the other party; provided however, that all rights and\nobligations accrued prior to such termination shall survive the termination of this Agreement. Notwithstanding anything herein to the contrary, the\nnondisclosure obligations and restrictions on use with respect to any Confidential Information shall continue and bind Recipient for a period of five\n(5) years after the date of the last disclosure of Confidential Information hereunder, except that the nondisclosure obligations and restrictions on use\nwith respect to any Confidential Information that constitutes a trade secret shall continue in effect for so long as the Confidential Information\nremains a trade secret under applicable law. Any termination or expiration of this Agreement shall be without prejudice to the rights of Company\nagainst Recipient in respect of any claim or breach of any of the provisions of this Agreement.\n4. Return of Confidential Information Recipient shall return to Company, or at Company's request, destroy, and shall cause its Related Parties\nto return or destroy, the Confidential Information and all copies, transcriptions or other reproductions of, and any notes relating to, the Confidential\nInformation, including without limitation, any memoranda, photocopies, computer files and libraries, computer-generated data or other similar\nrepositories or archives, upon (i) the accomplishment of the purpose for which the Confidential Information was provided, or (ii) receipt of a written\nnotice from Company requesting return or destruction of the Confidential Information, and upon request, shall provide to Company written\ncertification signed by an officer of Recipient that it has complied with the foregoing.\n5. Ownership.\n(a) All Confidential Information is and shall remain the property of Company. By disclosing Confidential Information to Recipient,\nCompany does not grant any express or implied right to Recipient to or under any patents, copyrights, trademarks, or trade secret information\nexcept as\n11\nrequired to implement the Limited Purpose. Company reserves without prejudice the ability to protect its rights under any such patents,\ncopyrights, trademarks, or trade secrets. Recipient shall not remove any proprietary, copyright, trade secret or other legend from any form of\nthe Confidential Information. Recipient shall, at the reasonable written request of Company and at Company's expense, add to the Confidential\nInformation any proprietary, copyright, trade secret or other legend or modify the same, which Company deems necessary to protect its\nintellectual property rights. Without limiting the foregoing, Company shall retain all right, title, and interest in and to all forms of Confidential\nInformation delivered or disclosed hereunder, including, without limitation, any patents, copyrights, trademarks, service marks, trade dress,\nlogos, technical information, know-how, trade secrets, and any modifications or enhancements thereto (whether developed by Company,\nRecipient, any Related Party, or on either party's behalf) or other intellectual property rights throughout the world, whether currently existing\nor hereafter developed or acquired, and all applications, disclosures and registrations with respect thereto (collectively, "IP Rights"). If\nRecipient or any third party engaged by Recipient is deemed to have any ownership interest or rights in any IP Rights in the Confidential\nInformation, then Recipient, for no additional consideration, shall assign and/or cause such third party to assign, and Recipient does hereby\nassign, all of such ownership interest and rights exclusively and irrevocably to Company. Recipient shall cooperate with Company and shall\ncause to be executed all such instruments and documents as Company reasonably may request in connection with such assignments and shall\ndo all other lawfully permitted acts reasonably required to further the intent of this Section 5; provided, however, this Agreement shall be\neffective regardless of whether any such additiona documents are executed. Recipient shall not dispute or contest, directly or indirectly,\nCompany's right, title and interest in or to, or the validity and enforceability of, any IP Rights in the Confidential Information (including the\nattempt to register or record the same in any jurisdiction). Notwithstanding anything herein to the contrary, this Section 5 shall survive any\ntermination or expiration of this Agreement.\n(b) Recipient may from time to time provide suggestions, comments or other feedback ("Feedback") to Company with respect to the\nConfidential Information. Both parties agree that all Feedback is and shall be given entirely voluntarily. Recipient shall not give Feedback that\nis subject to license terms that seek to require any Company product, technology, service or documentation incorporating or derived from such\nFeedback, or any Company intellectual property, to be licensed or otherwise shared with any third party. Recipient hereby acknowledges and\nagrees that all Feedback shall be deemed Confidential Information of Company, subject to the obligations of confidentiality and restricted use\nprovided under this Agreement. Furthermore, Recipient hereby acknowledges and agrees that Company shall have the exclusive right to use,\ndisclose, reproduce, license or otherwise distribute, and exploit the Feedback as Company sees fit, entirely without obligation or restriction of\nany kind on account of intellectual property rights or otherwise.\n6. Accuracy and Completeness of Confidential Information. The disclosure of any Confidential Information to Recipient shall be solely in\nCompany's discretion. This Agreement shall not require Company to disclose any information or to require the consummation of any transaction\nin\nconnection with which the Confidential Information is disclosed. Notwithstanding anything to the contrary, Company shall not be deemed to have\nmade any representation or warranty to Recipient concerning the accuracy or completeness of any Confidential Information, except to the extent that\nsuch representation or warranty may be expressly set forth in a definitive written agreement concerning any subsequent business relationship.\n7. Independent Contractors. Neither this Agreement, nor any terms and conditions contained herein, will be construed as creating a partnership,\njoint venture, or agency relationship or as granting a franchise. The parties are independent contractors each acting for its own account, and neither\nis\nauthorized to make any commitment or representation, express or implied, on the other's behalf.\n8.\nRemedies.\nRecipient\nacknowledges\nand\nagrees\nthat\nCompany\nwould\nbe\nirreparably\nharmed\nif\nany\nof\nthe\nConfidential\nInformation\nwere\nto\nbe\ndisclosed to third parties, or if any use were to be made of the Confidential Information other than that specified in this Agreement, and further\nagrees that Company shall have the right to seek and obtain injunctive relief upon any violation or threatened violation of the terms of this\nAgreement\n12\nwithout the necessity of posting bond or other security, in addition to all other rights and remedies available to Company at law or in equity. Any\ntrade secrets of the Company will be entitled to all of the protections and benefits under the applicable Uniform Trade Secrets Act and any other\napplicable law. If any information that Company deems to be a trade secret is found by a court of competent jurisdiction not to be a trade secret for\npurposes of this Agreement, such information nevertheless will be considered Confidential Information for purposes of this Agreement. Recipient\nhereby waives any requirement that the Company submit proof of the economic value of any trade secret.\n9. Indemnity.. Recipient shall indemnify Company for and against all damages, losses, claims, costs (including reasonable attorneys' fees),\nexpenses and liabilities, suffered or incurred as a direct or indirect result of Recipient failing (whether intentionally or not) to fully comply with its\ncovenants and obligations under this Agreement, including by virtue of any act of any Related Party.\n10. Entire Agreement. This Agreement sets forth the complete and exclusive understanding of the parties regarding the subject matter of this\nAgreement and supersedes all prior agreements, understandings, and communications, oral or written, between the parties regarding the subject\nmatter of this Agreement. This Agreement is not, however, intended to limit any rights that Company may have under trade secret, copyright, patent,\ntrademark or other laws that may apply to the subject matter of this Agreement both during and after the term of this Agreement.\n11. Amendments. No amendment or waiver of any term of this Agreement shall be effective unless such amendment or waiver is in writing\nand is signed by each of the parties hereto.\n12. Assignment. Recipient shall not assign or transfer, in whole or in part and whether by contract or operation of law, this Agreement, or any\nrights or obligations hereunder, without the prior written consent of Company. Subject to the foregoing, this Agreement shall be binding upon, and\nshall inure to the benefit of, the parties and their respective representatives, successors and assigns.\n13.\nAttorneys' Fees. If any party shall commence any action or proceeding against the other in order to enforce the provisions of this\nAgreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing party therein shall be\nentitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the party who has breached this\nAgreement, as the case may be, including reasonable attorneys' fees.\n14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, other than such\nlaws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Florida. Any suit to\nenforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in the United States District\nCourt for the District of Florida or the District Court in and for the city of Sarasota and the County of Sarasota, State of Florida. Each party hereby\nagrees that such courts shall have inpersonam jurisdiction and venue with respect to such party, and each party hereby submits to the in personam\njurisdiction and venue of such courts.\n15. Severability.. If any provision of the Agreement shall be held by a court competent jurisdiction to be illegal, invalid or unenforceable, the\nparties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties' intentions and the remaining\nprovisions shall remain in full force and effect.\n[SIGNATURE PAGE FOLLOWS]\n13\nThis Agreement has been executed as of the date first set forth above.\nSun Energy Solar, Inc.\nBy: /s/ Carl L. Smith\nTitle: CEO\nDate: July 10, 2006\nRecipient\nSignature: /s/ Robert Fugerer\nPrinted:\nRobert Fugerer\nDate:\nFebruary 18, 2006\n14	NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into this 2nd day of February, 2006 by and between Sun Energy Solar, Inc.,\na Delaware company having an address at 6408 Parkland Drive, Suite 104, Sarasota, Florida 34243, United States of America (“Company”), and\nRobert Fugerer, an individual residing in the state of Florida, and having an address at 4819 Sky Blue Drive, Lutz, FL 33558(“Recipient”).\nRECITALS\nA. Company and Recipient have initiated or intend to initiate discussions concerning the possibility of entering into a mutually advantageous\nbusiness relationship whereby Recipient shall perform certain services on behalf of and for the benefit of Company (the “Limited Purpose”).\nB. To facilitate the disclosure of certain Confidential Information (as defined below) by Company to Recipient, the parties desire to enter into\nthis Agreement.\nAGREEMENT\nNow therefore, in consideration of the foregoing recitals, which are hereby incorporated into this Agreement by reference, and the mutual\ncovenants and agreements contained herein, and other good and valuable consideration, the adequacy and receipt of which is hereby acknowledged,\nthe parties agree as follows:\n1. Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following meanings:\n(a) “Confidential Information” mean any information, whether written, oral, magnetic, photographic, optical, or other form, tangible or\nintangible, which has been, or after the date hereof will be, furnished or disclosed by Company, or its employees, consultants, representatives\nor agents, or which Recipient may have access to in connection with the Limited Purpose, which has been designated as being confidential, or\nwhich under the circumstances of disclosure reasonably ought to be treated as confidential, including but not limited to any information\npertaining to or regarding the business, financial condition, pricing, sales, strategies, plans, customers, suppliers, properties and operations of\nCompany (including such information visually available to Recipient at Company’s premises or Company presentations), and including\nwithout limitation all technical information of any nature whatsoever and all business plans, inventions, trade secrets, know-how,\nmethodologies, concepts, techniques, discoveries, computer programs (including functionality and source code), processes, drawings, designs,\nresearch, plans or specifications relating thereto.\n(b) “Related Party” or “Related Parties” shall mean the directors, officers, employees, legal, tax and other professional advisors or\nconsultants of Recipient, to the extent such entities or persons receive Confidential Information.\n2. Non-Disclosure and Restricted Use of Confidential Information.\n(a) Recipient shall keep in strictest confidence and trust all Confidential Information and, except upon the express prior written consent\nof Company, Recipient shall (i) not disclose any Confidential Information to any other entity or person, and (ii) use the Confidential\nInformation solely as necessary to implement the Limited Purpose and not for Recipient’s own benefit or for the benefit of any other entity or\nperson. Recipient shall take all reasonable safeguards to prevent the disclosure or misuse of the Confidential Information, including without\nlimitation such measures as the Recipient takes to safeguard its own confidential information, and shall not photocopy, transcribe or otherwise\nreproduce or modify any of the Confidential Information except as necessary to implement the Limited Purpose or otherwise upon the express\nwritten consent of the Company.\n10\n(b) Recipient may disclose the Confidential Information to Related Parties on a “need to know” basis only. Recipient shall inform all\nRelated Parties who have access to the Confidential Information that such Confidential Information is confidential and proprietary to Company\nand shall require each such Related Party to agree to restrictions and obligations at least as strict as those set forth herein prior to disclosure of\nany Confidential Information. Recipient shall diligently enforce any and all confidentiality agreements with Related Parties and shall be\nresponsible and liable for any breach of the confidentiality obligations and restrictions on use set forth herein by any Related Party.\n(c) The obligations of Recipient stated in the preceding paragraphs of this Section 2 shall not apply to information that (i) is or becomes\ngenerally known or available to the public through no wrongful act of the Recipient; (ii) was in the Recipient's possession at the time of\ndisclosure or receipt, as evidenced and verified by prior tangible evidence, and was not acquired under an obligation of confidence;\n(iii) Recipient demonstrates was rightfully received by it from a third party after the time it was disclosed or obtained hereunder, provided that\nsuch third party was not under an obligation of confidence with the Company at the time of the third party’s disclosure to Recipient; (iv) is\nindependently developed by Recipient without use of or reference to the Confidential Information and without breach of this Agreement, as\nevidenced and verified by prior tangible evidence; or (v) is required to be disclosed in a judicial or administrative proceeding, or as otherwise\nrequired to be disclosed by law, in any such case after all reasonable legal remedies for maintaining such information in confidence have been\nexhausted, including, but not limited to, giving Company as much advance notice of the possibility of such disclosure as practical so Company\nmay attempt to stop such disclosure or obtain a protective order concerning such disclosure. Recipient shall provide Company with written\nnotice no less than five (5) days prior to the disclosure or use of any information of Company pursuant to this Section 2(c), subsections\n(i) through (v).\n(d) Recipient shall (i) notify Company immediately of any unauthorized possession, use or knowledge of the Confidential Information,\n(ii) promptly furnish Company full details of such possession, use or knowledge, and (iii) cooperate with Company against third parties as may\nbe deemed necessary by Company to protect its proprietary rights in the Confidential Information.\n3. Term of Agreement. This Agreement shall be effective as of the date of first disclosure of Confidential Information and may be terminated,\nwithout cause, with respect to future disclosures upon thirty (30) days prior written notice to the other party; provided however, that all rights and\nobligations accrued prior to such termination shall survive the termination of this Agreement. Notwithstanding anything herein to the contrary, the\nnondisclosure obligations and restrictions on use with respect to any Confidential Information shall continue and bind Recipient for a period of five\n(5) years after the date of the last disclosure of Confidential Information hereunder, except that the nondisclosure obligations and restrictions on use\nwith respect to any Confidential Information that constitutes a trade secret shall continue in effect for so long as the Confidential Information\nremains a trade secret under applicable law. Any termination or expiration of this Agreement shall be without prejudice to the rights of Company\nagainst Recipient in respect of any claim or breach of any of the provisions of this Agreement.\n4. Return of Confidential Information. Recipient shall return to Company, or at Company’s request, destroy, and shall cause its Related Parties\nto return or destroy, the Confidential Information and all copies, transcriptions or other reproductions of, and any notes relating to, the Confidential\nInformation, including without limitation, any memoranda, photocopies, computer files and libraries, computer-generated data or other similar\nrepositories or archives, upon (i) the accomplishment of the purpose for which the Confidential Information was provided, or (ii) receipt of a written\nnotice from Company requesting return or destruction of the Confidential Information, and upon request, shall provide to Company written\ncertification signed by an officer of Recipient that it has complied with the foregoing.\n5. Ownership.\n(a) All Confidential Information is and shall remain the property of Company. By disclosing Confidential Information to Recipient,\nCompany does not grant any express or implied right to Recipient to or under any patents, copyrights, trademarks, or trade secret information\nexcept as\n11\nrequired to implement the Limited Purpose. Company reserves without prejudice the ability to protect its rights under any such patents,\ncopyrights, trademarks, or trade secrets. Recipient shall not remove any proprietary, copyright, trade secret or other legend from any form of\nthe Confidential Information. Recipient shall, at the reasonable written request of Company and at Company’s expense, add to the Confidential\nInformation any proprietary, copyright, trade secret or other legend or modify the same, which Company deems necessary to protect its\nintellectual property rights. Without limiting the foregoing, Company shall retain all right, title, and interest in and to all forms of Confidential\nInformation delivered or disclosed hereunder, including, without limitation, any patents, copyrights, trademarks, service marks, trade dress,\nlogos, technical information, know-how, trade secrets, and any modifications or enhancements thereto (whether developed by Company,\nRecipient, any Related Party, or on either party’s behalf) or other intellectual property rights throughout the world, whether currently existing\nor hereafter developed or acquired, and all applications, disclosures and registrations with respect thereto (collectively, “IP Rights”). If\nRecipient or any third party engaged by Recipient is deemed to have any ownership interest or rights in any IP Rights in the Confidential\nInformation, then Recipient, for no additional consideration, shall assign and/or cause such third party to assign, and Recipient does hereby\nassign, all of such ownership interest and rights exclusively and irrevocably to Company. Recipient shall cooperate with Company and shall\ncause to be executed all such instruments and documents as Company reasonably may request in connection with such assignments and shall\ndo all other lawfully permitted acts reasonably required to further the intent of this Section 5; provided, however, this Agreement shall be\neffective regardless of whether any such additional documents are executed. Recipient shall not dispute or contest, directly or indirectly,\nCompany’s right, title and interest in or to, or the validity and enforceability of, any IP Rights in the Confidential Information (including the\nattempt to register or record the same in any jurisdiction). Notwithstanding anything herein to the contrary, this Section 5 shall survive any\ntermination or expiration of this Agreement.\n(b) Recipient may from time to time provide suggestions, comments or other feedback (“Feedback”) to Company with respect to the\nConfidential Information. Both parties agree that all Feedback is and shall be given entirely voluntarily. Recipient shall not give Feedback that\nis subject to license terms that seek to require any Company product, technology, service or documentation incorporating or derived from such\nFeedback, or any Company intellectual property, to be licensed or otherwise shared with any third party. Recipient hereby acknowledges and\nagrees that all Feedback shall be deemed Confidential Information of Company, subject to the obligations of confidentiality and restricted use\nprovided under this Agreement. Furthermore, Recipient hereby acknowledges and agrees that Company shall have the exclusive right to use,\ndisclose, reproduce, license or otherwise distribute, and exploit the Feedback as Company sees fit, entirely without obligation or restriction of\nany kind on account of intellectual property rights or otherwise.\n6. Accuracy and Completeness of Confidential Information. The disclosure of any Confidential Information to Recipient shall be solely in\nCompany’s discretion. This Agreement shall not require Company to disclose any information or to require the consummation of any transaction in\nconnection with which the Confidential Information is disclosed. Notwithstanding anything to the contrary, Company shall not be deemed to have\nmade any representation or warranty to Recipient concerning the accuracy or completeness of any Confidential Information, except to the extent that\nsuch representation or warranty may be expressly set forth in a definitive written agreement concerning any subsequent business relationship.\n7. Independent Contractors. Neither this Agreement, nor any terms and conditions contained herein, will be construed as creating a partnership,\njoint venture, or agency relationship or as granting a franchise. The parties are independent contractors each acting for its own account, and neither is\nauthorized to make any commitment or representation, express or implied, on the other’s behalf.\n8. Remedies. Recipient acknowledges and agrees that Company would be irreparably harmed if any of the Confidential Information were to be\ndisclosed to third parties, or if any use were to be made of the Confidential Information other than that specified in this Agreement, and further\nagrees that Company shall have the right to seek and obtain injunctive relief upon any violation or threatened violation of the terms of this\nAgreement\n12\nwithout the necessity of posting bond or other security, in addition to all other rights and remedies available to Company at law or in equity. Any\ntrade secrets of the Company will be entitled to all of the protections and benefits under the applicable Uniform Trade Secrets Act and any other\napplicable law. If any information that Company deems to be a trade secret is found by a court of competent jurisdiction not to be a trade secret for\npurposes of this Agreement, such information nevertheless will be considered Confidential Information for purposes of this Agreement. Recipient\nhereby waives any requirement that the Company submit proof of the economic value of any trade secret.\n9. Indemnity. Recipient shall indemnify Company for and against all damages, losses, claims, costs (including reasonable attorneys’ fees),\nexpenses and liabilities, suffered or incurred as a direct or indirect result of Recipient failing (whether intentionally or not) to fully comply with its\ncovenants and obligations under this Agreement, including by virtue of any act of any Related Party.\n10. Entire Agreement. This Agreement sets forth the complete and exclusive understanding of the parties regarding the subject matter of this\nAgreement and supersedes all prior agreements, understandings, and communications, oral or written, between the parties regarding the subject\nmatter of this Agreement. This Agreement is not, however, intended to limit any rights that Company may have under trade secret, copyright, patent,\ntrademark or other laws that may apply to the subject matter of this Agreement both during and after the term of this Agreement.\n11. Amendments. No amendment or waiver of any term of this Agreement shall be effective unless such amendment or waiver is in writing\nand is signed by each of the parties hereto.\n12. Assignment. Recipient shall not assign or transfer, in whole or in part and whether by contract or operation of law, this Agreement, or any\nrights or obligations hereunder, without the prior written consent of Company. Subject to the foregoing, this Agreement shall be binding upon, and\nshall inure to the benefit of, the parties and their respective representatives, successors and assigns.\n13. Attorneys’ Fees. If any party shall commence any action or proceeding against the other in order to enforce the provisions of this\nAgreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing party therein shall be\nentitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the party who has breached this\nAgreement, as the case may be, including reasonable attorneys’ fees.\n14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, other than such\nlaws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Florida. Any suit to\nenforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in the United States District\nCourt for the District of Florida or the District Court in and for the city of Sarasota and the County of Sarasota, State of Florida. Each party hereby\nagrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party hereby submits to the in personam\njurisdiction and venue of such courts.\n15. Severability. If any provision of the Agreement shall be held by a court competent jurisdiction to be illegal, invalid or unenforceable, the\nparties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties’ intentions and the remaining\nprovisions shall remain in full force and effect.\n[SIGNATURE PAGE FOLLOWS]\n13\nThis Agreement has been executed as of the date first set forth above.\nSun Energy Solar, Inc.\nBy: /s/ Carl L. Smith\nTitle: CEO\nDate: July 10, 2006\nRecipient\nSignature: /s/ Robert Fugerer\nPrinted: Robert Fugerer\nDate:\nFebruary 18, 2006\n14
+7a20fb6f63aad5ff33abf4db2eb38950.pdf	effective_date jurisdiction party term	EX-99.D.15 30 y95188exv99wdw15.txt FORM OF NON-DISCLOSURE AGREEMENT Exhibit (d)(15)\nCONFIDENTIAL January 7, 2004 Mr. Stephen L. Waechter CACI International, Inc. 1100 North Glebe Road Arlington,\nVA 22201 Mr. Waechter: To facilitate discussions relating to a potential business combination (the "Transaction")\nbetween CACI International, Inc. (together with its subsidiaries, "Company") and American Management Systems,\nIncorporated (together with its subsidiaries, "AMS"), Company expects to make available to AMS and its\nRepresentatives (as defined) nonpublic information concerning Company, including, but not limited to information\nconcerning the businesses, condition (financial and other), operations, and prospects of Company, and AMS expects to\nmake available to Company and its Representatives nonpublic information concerning AMS, including, but not limited\nto information concerning the businesses, condition (financial and other), operations, and prospects of AMS. As a\ncondition to such information being made available, each party agrees that all Evaluation Material (as defined) received\nby it or its Representatives from the other party or any of any of its Representatives shall be treated in accordance with\nthis Nondisclosure and Confidentiality Agreement (this "Agreement"). 1. Certain Definitions. As used in this\nAgreement: (a) "Receiving Party" means the party receiving Evaluation Material; (b) "Furnishing Party" means the party\nproviding Evaluation Material or causing Evaluation Material to be provided; (c) "Representatives" means the directors,\nofficers, employees, agents or advisors (including, without limitation, attorneys, accountants, investment bankers and\nconsultants) of the specified party; and (d) "Evaluation Material" means all information concerning the Furnishing Party\nor any of its subsidiaries or affiliates, whether in verbal, visual, written, electronic or other form, which is made available\nby the Furnishing Party or any of its Representatives to the Receiving Party or any of its Representatives ("Primary\nEvaluation Material"), together, in each case, with all notes, memoranda, summaries, analyses, studies, compilations and\nother writings relating thereto or based thereon prepared by the Receiving Party or any of its Representatives\n("Derivative Evaluation Material"). Notwithstanding the foregoing, the term "Evaluation Material" shall not include\ninformation which the Receiving Party can demonstrate (u) was rightfully in the possession of the Receiving Party prior\nto disclosure by the Furnishing Party; (v) was or is independently developed by the Receiving Party without use of the\nEvaluation Material; (w) is now, or hereafter becomes, available to the public other than as a result of disclosure by the\nReceiving Party prohibited by this Agreement; (x) becomes available to the Receiving Party or any of its Representatives\non a non-confidential basis from a source other than the Furnishing Party or any of its Representatives and such source is\nnot, to the knowledge of the Receiving Party following reasonable inquiry, under any obligation to the Furnishing Party\nor any of its Representatives to keep such information confidential; (y) is transmitted by or on behalf of the Furnishing\nParty after receiving written notification from the Receiving Party of the termination of discussions relating to the\nTransaction or written instructions from the Receiving Party not to furnish any further Evaluation Material; or (z) is\ndisclosed as provided in Paragraph 2(b). 2. Confidentiality and Use of Evaluation Material. (a) Confidentiality of\nEvaluation Material. All Evaluation Material (i) shall be used solely for the purpose of evaluating and considering the\nTransaction; (ii) shall be kept strictly confidential by the Receiving Party; and (iii) shall be provided by the Receiving\nParty solely to those of its Representatives to whom disclosure is reasonably deemed to be required to facilitate the\nReceiving Party's evaluation or consideration of the Transaction. The parties intend to restrict the dissemination of\nEvaluation Material to as small a working group as practicable. All Evaluation Material is and shall remain the property\nof the Furnishing Party. Before providing access to Evaluation Material to any Representative, the Receiving Party shall\ninform such Representative of the contents of this Agreement and the confidentiality of the Evaluation Material, and\nshall advise such Representative that, by accepting possession of or access to such information, such Representative is\nagreeing to be bound by this Agreement. Each party shall instruct its Representatives to observe the terms of this\nAgreement and shall be responsible for any breach of this Agreement by any of its Representatives. (b) Compulsory\nDisclosure of Evaluation Material. If the Receiving Party is requested in any judicial or administrative proceeding, or by\nany governmental or regulatory authority, to disclose any Evaluation Material (whether by deposition, interrogatory,\nrequest for documents, subpoena, civil investigative demand or otherwise), the Receiving Party shall give the Furnishing\nParty prompt notice of such request so that the Furnishing Party may seek an appropriate protective order, and, upon the\nFurnishing Party's request and at the Furnishing Party's expense, shall cooperate with the Furnishing Party in seeking\nsuch an order. If the Receiving Party is nonetheless compelled to disclose Evaluation Material, the Receiving Party shall\ndisclose only that portion of the Evaluation Material which the Receiving Party is legally required to disclose and, upon\nthe Furnishing Party's request and at the Furnishing Party's expense, shall use commercially reasonable efforts to obtain\nassurances that confidential treatment will be accorded to such Evaluation Material to the extent such assurances are\navailable. Subject to the foregoing conditions and limitations, the Receiving Party may disclose Evaluation Material\nwithout liability hereunder. (c) Disclosure to Tax Authorities. Notwithstanding anything herein to the contrary, except\nwhere such disclosure would be prohibited under U.S . securities laws, any party to this Agreement (and each employee,\nrepresentative or other agent thereof) may disclose to any and all persons, without limitation of any kind, the tax\ntreatment and tax structure of the proposed Transaction and all materials of any kind (including opinions or other tax\nanalyses) that are provided to the party relating to such tax treatment and tax structure. For this purpose, a "tax structure"\nmeans any facts relevant to the U.S . federal income tax treatment of the proposed Transaction and does not include\ninformation relating to the identity of the parties. (d) Other Public Disclosure. Except (i) for such public disclosure as\nmay be necessary, in the good faith judgment of the disclosing party following consultation with outside counsel, for the\ndisclosing party not to be in violation of any applicable law, regulation, order or listing agreement, or (ii) with the prior\nwritten consent of the other party, neither party shall: (A) make any disclosure (and each party shall direct its\nRepresentatives not to make any disclosure) to any person of (1) the fact that discussions, negotiations or investigations\nare taking or have taken place concerning a Transaction, (2) the existence or contents of this Agreement, or the fact that\neither party has requested or received Evaluation Material from the other party, or (3) any of the terms, conditions or\nother facts with respect to any proposed Transaction, including the status thereof, or (B) make any public statement\nconcerning the proposed Transaction. If either party proposes to make any disclosure in reliance on clause (i) above, the\ndisclosing party shall, if practicable, provide the other party with the text of the proposed disclosure as far in advance of\nits disclosure as is practicable and shall in good faith consult with and consider the suggestions of the other party\nconcerning the nature and scope of the information it proposes to disclose. - 2 - (e) Securities Law Restrictions. Each\nparty acknowledges that the Evaluation Material may contain material nonpublic information concerning the Furnishing\nParty. Each party further acknowledges its awareness of the restrictions imposed by federal and state securities laws on\npersons in possession of material nonpublic information, and agrees that while it is in possession of material nonpublic\ninformation with respect to the other party, it shall not purchase or sell any securities of the other party, or communicate\nsuch information to any third party, in violation of applicable law. Nothing herein shall constitute an admission by either\nparty that any Evaluation Material in fact contains material nonpublic information concerning the Furnishing Party. (f)\nContact with Employees and Representatives. Neither party shall communicate with any employee of the other party\nregarding the Transaction or disclose any Evaluation Material to any employee or Representative of the other party, other\nthan the employees and Representatives named on the working group lists exchanged by the parties from time to time. 3.\nAccuracy of Evaluation Material; No Representations or Warranties. Each party acknowledges and agrees (a) that no\nrepresentation or warranty, express or implied, is made by either party, or any of its respective Representatives, as to the\naccuracy or completeness of the Evaluation Material and (b) that the parties shall be entitled to rely only on those\nrepresentations and warranties (if any) that may be made in a definitive written Transaction agreement, signed and\ndelivered by both parties. Unless otherwise provided in the definitive written Transaction agreement, neither the\nFurnishing Party nor any of its Representatives shall have any liability to the Receiving Party or any of its\nRepresentatives on account of the use of any Evaluation Material by the Receiving Party or any of its Representatives or\nany inaccuracy therein or omission therefrom. 4. Return and Destruction of Evaluation Material. At any time after\ntermination of discussions by either party to this Agreement with respect to the Transaction, upon the request of the\nFurnishing Party, the Receiving Party shall promptly (and in no event later than five business days after such request) (a)\nreturn or cause to be returned to the Furnishing Party all copies of all Primary Evaluation Material in the possession or\ncontrol of the Receiving Party or its Representatives which is in a visual or written format and erase or destroy all copies\nof all such Primary Evaluation Material which is stored in electronic format (and certify to the Furnishing Party such\nerasure or destruction), and (b) destroy or cause to be destroyed (and certify such destruction to the Furnishing Party) all\nDerivative Evaluation Material in the possession or control of the Receiving Party or any of its Representatives. Nothing\nherein shall obligate the Receiving Party to provide any Derivative Evaluation Material to the Furnishing Party.\nNotwithstanding the return, destruction or erasure of Evaluation Material hereunder, the Receiving Party and its\nRepresentatives shall continue to be bound by their confidentiality and other obligations hereunder. 5. Non-solicitation of\nEmployees. Each party agrees not to directly or indirectly solicit for employment any management employees or other\ncurrent employees of the other party to whom a party may be directly or indirectly introduced or otherwise have contact\nwith as a result of its consideration of a Transaction for a period of one year after the date of this letter, without the prior\nwritten consent of the other party, provided that neither party will be restricted from making any general solicitation for\nemployees or public advertising of employment opportunities (including through the use of employment agencies) not\nspecifically directed at such persons, and provided further that neither party will be restricted in hiring any such person\nwho responds to any such general or public advertising. - 3 - 6. Standstill. (a) Each party agrees that the Evaluation\nMaterial is being furnished to the other party in consideration of their respective agreement that neither party nor its\nrespective Representatives will, for a period of one year from the date hereof, directly or indirectly, alone or with others,\n(a) negotiate with or provide any information to the other party with respect to, or make any statement or proposal to the\nBoard of Directors of, such other party, to any of its agents or to any stockholder of such other party with respect to, or\nmake any public announcement or proposal or offer whatsoever (including, but not limited to any "solicitation" or\n"proxies" as such terms are defined or used in Regulation 14A of the Securities Exchange Act of 1934) with respect to,\nor otherwise solicit, seek or offer to effect (i) any form of business combination or transaction involving the other party\nor any affiliate thereof, including, without limitation, a merger, tender or exchange offer or liquidation of the other\nparty's assets, (ii) any form of restructuring, recapitalization or similar transaction with respect to the other party or any\naffiliate thereof, (iii) any purchase of any securities or assets, or rights to acquire any securities or assets, of the other\nparty, (iv) any proposal to seek representation on the Board of Directors of the other party or otherwise seek to control or\ninfluence the management, Board of Directors or policies of the other party, (v) any request or proposal to waive,\nterminate or amend the provisions of this letter, or (vi) any proposal or other statement inconsistent with the terms of this\nletter, (b) instigate, encourage or assist any third party to do any of the foregoing, or (c) become a beneficial owner of\nany securities of the other party (except that each party may purchase for investment in market transactions up to 1% of\nthe other party's stock), unless and until such party has received the prior written invitation or approval of a majority of\nthe Board of Directors of the other party to do any of the foregoing. The foregoing shall not apply to either party's\nRepresentatives effecting or recommending transactions in the other party's securities in the ordinary course of their\nbusiness as, without limitation, an investment advisor, broker, dealer in securities, market maker, specialist or block\npositioner. (b) The provisions of the foregoing paragraph shall not apply, and the Company shall be free to engage in any\nof the activities otherwise prohibited by the foregoing paragraph, from the date of public announcement of or public\ndisclosure of commencement of: (i) a tender or exchange offer to acquire 20% or more of any class of then outstanding\nvoting securities of AMS by any person or group of persons (other than the Company or a group including the\nCompany); or (ii) any merger, sale or other business combination transaction (A) pursuant to which any class of\noutstanding voting securities of AMS would be converted into cash or securities of another person or group of persons\nacting as a group (other than the Company or a group including the Company) with the result that 20% or more of any\nclass of then outstanding voting securities of AMS would be owned by persons other than the then current holders of\nsuch class of voting securities of AMS or (B) which would result in all or a substantial portion of the AMS's assets being\nsold to any person or group (other than the Company or a group including the Company), to the earlier of the date of\ncompletion of the said tender offer or business transaction and the date of withdrawal or cancellation of same; provided,\nhowever, that this paragraph 6(b) shall not apply in the event such tender offer or business transaction is commenced\nwith the consent of AMS. - 4 - 7. Remedies. Each party agrees that money damages would not be a sufficient remedy for\nany breach of any provision of this Agreement by the other party or any of its Representatives, and that in addition to all\nother remedies which any party hereto may have, each party shall be entitled to specific performance and injunctive or\nother equitable relief as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies\nfor a breach of this Agreement but shall be in addition to all other remedies available at law or in equity. No failure or\ndelay by any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor\nshall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder. 8. Miscellaneous. (a) No License. Neither party grants a license, by implication or\notherwise, under any of its patents, trade secrets or other intellectual property rights to the Receiving Party. The terms of\nthis Agreement shall not be construed to limit either party's right to independently develop or acquire products without\nuse of the other party's Evaluation Material. Nothing in this Agreement will be construed as a representation or\nagreement that the Receiving Party will not develop, or have developed for it, products, concepts, systems or techniques\nthat are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the\nEvaluation Material, provided that the Receiving Party does not violate any of its obligations under this Agreement in\nconnection with such development. (b) Entire Agreement. This Agreement contains the sole and entire agreement\nbetween the parties with respect to the confidentiality of the Evaluation Material and the confidentiality of their\ndiscussions, negotiations and investigations concerning a Transaction. (c) Amendment and Waiver. This Agreement may\nbe amended, modified or waived only by a separate written instrument duly signed and delivered by or on behalf of both\nparties. (d) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect\nthe validity or enforceability of any other provision of this Agreement, unless the enforcement of such provision in such\ncircumstances would be inequitable. (e) No Obligation to Complete a Transaction. This Agreement is not intended to,\nand does not, constitute an agreement, or impose any obligation, to consummate a Transaction, to conduct or continue\nnegotiations with respect to a Transaction, or to enter into a definitive Transaction agreement. Neither party shall have\nany rights or obligations of any kind whatsoever with respect to a Transaction by virtue of this Agreement or by virtue of\nany other written or oral expression by the parties' respective Representatives unless and until a definitive Transaction\nagreement between the parties is executed and delivered by both parties. Both parties further acknowledge and agree that\neach party reserves the right, in its sole discretion, to provide or not to provide Evaluation Material to the Receiving\nParty under this Agreement, to reject any and all proposals made by the other party or any of its Representatives with\nregard to a Transaction, and to terminate discussions and negotiations at any time for any reason or no reason. If either\nparty determines not to proceed with negotiations with respect to a Transaction, it will promptly inform the other party of\nsuch determination. (f) Governing Law; Forum. This Agreement shall be governed by, and construed in accordance with,\nthe laws of the Commonwealth of Virginia. Each party hereto consents and submits to the exclusive jurisdiction of the\ncourts of the State of Virginia and the courts of the United States located in the Eastern District of Virginia for the\nadjudication of any action, suit, or proceeding arising out of or otherwise relating to this Agreement. [Remainder of Page\nIntentionally Blank] - 5 - (g) If the foregoing correctly sets forth our agreement with respect to the matters set forth\nherein, please so indicate by signing two copies of this Agreement and returning one signed copy to me, whereupon this\nAgreement shall constitute our binding agreement with respect to the matters set forth herein. Very truly yours,\nAMERICAN MANAGEMENT SYSTEMS, INCORPORATED By:__________________________________ David\nW.H. Sharman: Senior Vice President, Corporate Development ACCEPTED AND AGREED TO AS OF THE DATE\nFIRST WRITTEN ABOVE: CACI INTERNATIONAL, INC. By: ________________________________ Name:\n______________________________\nTitle: _______________________________ - 6 -	EX-99.D.15 30 y95188exv99wdw15.txt FORM OF NON-DISCLOSURE AGREEMENT Exhibit (d)(15)\nCONFIDENTTIAL January 7, 2004 Mr. Stephen L. Waechter CACI International, Inc. 1100 North Glebe Road Arlington,\nVA 22201 Mr. Waechter: To facilitate discussions relating to a potential business combination (the "Transaction")\nbetween CACI International, Inc. (together with its subsidiaries, "Company") and American Management Systems,\nIncorporated (together with its subsidiaries, "AMS"), Company expects to make available to AMS and its\nRepresentatives (as defined) nonpublic information concerning Company, including, but not limited to information\nconcerning the businesses, condition (financial and other), operations, and prospects of Company, and AMS expects to\nmake available to Company and its Representatives nonpublic information concerning AMS, including, but not limited\nto information concerning the businesses, condition (financial and other), operations, and prospects of AMS. As a\ncondition to such information being made available, each party agrees that all Evaluation Material (as defined) received\nby it or its Representatives from the other party or any of any of its Representatives shall be treated in accordance with\nthis Nondisclosure and Confidentiality Agreement (this "Agreement"). 1. Certain Definitions. As used in this\nAgreement: (a) "Receiving Party" means the party receiving Evaluation Material; (b) "Furnishing Party" means the party\nproviding Evaluation Material or causing Evaluation Material to be provided; (c) "Representatives" means the directors,\nofficers, employees, agents or advisors (including, without limitation, attorneys, accountants, investment bankers and\nconsultants) of the specified party; and (d) "Evaluation Material" means all information concerning the Furnishing Party\nor any of its subsidiaries or affiliates, whether in verbal, visual, written, electronic or other form, which is made available\nby the Furnishing Party or any of its Representatives to the Receiving Party or any of its Representatives ("Primary\nEvaluation Material"), together, in each case, with all notes, memoranda, summaries, analyses, studies, compilations and\nother writings relating thereto or based thereon prepared by the Receiving Party or any of its Representatives\n("Derivative Evaluation Material"). Notwithstanding the foregoing, the term "Evaluation Material" shall not include\ninformation which the Receiving Party can demonstrate (u) was rightfully in the possession of the Receiving Party prior\nto disclosure by the Furnishing Party; (v) was or is independently developed by the Receiving Party without use of the\nEvaluation Material; (w) is now, or hereafter becomes, available to the public other than as a result of disclosure by the\nReceiving Party prohibited by this Agreement; (x) becomes available to the Receiving Party or any of its Representatives\non a non-confidential basis from a source other than the Furnishing Party or any of its Representatives and such source is\nnot, to the knowledge of the Receiving Party following reasonable inquiry, under any obligation to the Furnishing Party\nor any of its Representatives to keep such information confidential; (y) is transmitted by or on behalf of the Furnishing\nParty after receiving written notification from the Receiving Party of the termination of discussions relating to the\nTransaction or written instructions from the Receiving Party not to furnish any further Evaluation Material; or (z) is\ndisclosed as provided in Paragraph 2(b). 2. Confidentiality and Use of Evaluation Material. (a) Confidentiality of\nEvaluation Material. All Evaluation Material (i) shall be used solely for the purpose of evaluating and considering the\nTransaction; (ii) shall be kept strictly confidential by the Receiving Party; and (iii) shall be provided by the Receiving\nParty solely to those of its Representatives to whom disclosure is reasonably deemed to be required to facilitate the\nReceiving Party's evaluation or consideration of the Transaction. The parties intend to restrict the dissemination of\nEvaluation Material to as small a working group as practicable. All Evaluation Material is and shall remain the property\nof the Furnishing Party. Before providing access to Evaluation Material to any Representative, the Receiving Party shall\ninform such Representative of the contents of this Agreement and the confidentiality of the Evaluation Material, and\nshall advise such Representative that, by accepting possession of or access to such information, such Representative is\nagreeing to be bound by this Agreement. Each party shall instruct its Representatives to observe the terms of this\nAgreement and shall be responsible for any breach of this Agreement by any of its Representatives. (b) Compulsory\nDisclosure of Evaluation Material. If the Receiving Party is requested in any judicial or administrative proceeding, or by\nany governmental or regulatory authority, to disclose any Evaluation Material (whether by deposition, interrogatory,\nrequest for documents, subpoena, civil investigative demand or otherwise), the Receiving Party shall give the Furnishing\nParty prompt notice of such request so that the Furnishing Party may seek an appropriate protective order, and, upon the\nFurnishing Party's request and at the Furnishing Party's expense, shall cooperate with the Furnishing Party in seeking\nsuch an order. If the Receiving Party is nonetheless compelled to disclose Evaluation Material, the Receiving Party shall\ndisclose only that portion of the Evaluation Material which the Receiving Party is legally required to disclose and, upon\nthe Furnishing Party's request and at the Furnishing Party's expense, shall use commercially reasonable efforts to obtain\nassurances that confidential treatment will be accorded to such Evaluation Material to the extent such assurances are\navailable. Subject to the foregoing conditions and limitations, the Receiving Party may disclose Evaluation Material\nwithout liability hereunder. (c) Disclosure to Tax Authorities. Notwithstanding anything herein to the contrary, except\nwhere such disclosure would be prohibited under U.S. securities laws, any party to this Agreement (and each employee,\nrepresentative or other agent thereof) may disclose to any and all persons, without limitation of any kind, the tax\ntreatment and tax structure of the proposed Transaction and all materials of any kind (including opinions or other tax\nanalyses) that are provided to the party relating to such tax treatment and tax structure. For this purpose, a "tax structure"\nmeans any facts relevant to the U.S. federal income tax treatment of the proposed Transaction and does not include\ninformation relating to the identity of the parties. (d) Other Public Disclosure. Except (i) for such public disclosure as\nmay be necessary, in the good faith judgment of the disclosing party following consultation with outside counsel, for the\ndisclosing party not to be in violation of any applicable law, regulation, order or listing agreement, or (ii) with the prior\nwritten consent of the other party, neither party shall: (A) make any disclosure (and each party shall direct its\nRepresentatives not to make any disclosure) to any person of (1) the fact that discussions, negotiations or investigations\nare taking or have taken place concerning a Transaction, (2) the existence or contents of this Agreement, or the fact that\neither party has requested or received Evaluation Material from the other party, or (3) any of the terms, conditions or\nother facts with respect to any proposed Transaction, including the status thereof, or (B) make any public statement\nconcerning the proposed Transaction. If either party proposes to make any disclosure in reliance on clause (i) above, the\ndisclosing party shall, if practicable, provide the other party with the text of the proposed disclosure as far in advance of\nits disclosure as is practicable and shall in good faith consult with and consider the suggestions of the other party\nconcerning the nature and scope of the information it proposes to disclose. - 2 - (e) Securities Law Restrictions. Each\nparty acknowledges that the Evaluation Material may contain material nonpublic information concerning the Furnishing\nParty. Each party further acknowledges its awareness of the restrictions imposed by federal and state securities laws on\npersons in possession of material nonpublic information, and agrees that while it is in possession of material nonpublic\ninformation with respect to the other party, it shall not purchase or sell any securities of the other party, or communicate\nsuch information to any third party, in violation of applicable law. Nothing herein shall constitute an admission by either\nparty that any Evaluation Material in fact contains material nonpublic information concerning the Furnishing Party. (f)\nContact with Employees and Representatives. Neither party shall communicate with any employee of the other party\nregarding the Transaction or disclose any Evaluation Material to any employee or Representative of the other party, other\nthan the employees and Representatives named on the working group lists exchanged by the parties from time to time. 3.\nAccuracy of Evaluation Material; No Representations or Warranties. Each party acknowledges and agrees (a) that no\nrepresentation or warranty, express or implied, is made by either party, or any of its respective Representatives, as to the\naccuracy or completeness of the Evaluation Material and (b) that the parties shall be entitled to rely only on those\nrepresentations and warranties (if any) that may be made in a definitive written Transaction agreement, signed and\ndelivered by both parties. Unless otherwise provided in the definitive written Transaction agreement, neither the\nFurnishing Party nor any of its Representatives shall have any liability to the Receiving Party or any of its\nRepresentatives on account of the use of any Evaluation Material by the Receiving Party or any of its Representatives or\nany inaccuracy therein or omission therefrom. 4. Return and Destruction of Evaluation Material. At any time after\ntermination of discussions by either party to this Agreement with respect to the Transaction, upon the request of the\nFurnishing Party, the Receiving Party shall promptly (and in no event later than five business days after such request) (a)\nreturn or cause to be returned to the Furnishing Party all copies of all Primary Evaluation Material in the possession or\ncontrol of the Receiving Party or its Representatives which is in a visual or written format and erase or destroy all copies\nof all such Primary Evaluation Material which is stored in electronic format (and certify to the Furnishing Party such\nerasure or destruction), and (b) destroy or cause to be destroyed (and certify such destruction to the Furnishing Party) all\nDerivative Evaluation Material in the possession or control of the Receiving Party or any of its Representatives. Nothing\nherein shall obligate the Receiving Party to provide any Derivative Evaluation Material to the Furnishing Party.\nNotwithstanding the return, destruction or erasure of Evaluation Material hereunder, the Receiving Party and its\nRepresentatives shall continue to be bound by their confidentiality and other obligations hereunder. 5. Non-solicitation of\nEmployees. Each party agrees not to directly or indirectly solicit for employment any management employees or other\ncurrent employees of the other party to whom a party may be directly or indirectly introduced or otherwise have contact\nwith as a result of its consideration of a Transaction for a period of one year after the date of this letter, without the prior\nwritten consent of the other party, provided that neither party will be restricted from making any general solicitation for\nemployees or public advertising of employment opportunities (including through the use of employment agencies) not\nspecifically directed at such persons, and provided further that neither party will be restricted in hiring any such person\nwho responds to any such general or public advertising. - 3 - 6. Standstill. (a) Each party agrees that the Evaluation\nMaterial is being furnished to the other party in consideration of their respective agreement that neither party nor its\nrespective Representatives will, for a period of one year from the date hereof, directly or indirectly, alone or with others,\n(a) negotiate with or provide any information to the other party with respect to, or make any statement or proposal to the\nBoard of Directors of, such other party, to any of its agents or to any stockholder of such other party with respect to, or\nmake any public announcement or proposal or offer whatsoever (including, but not limited to any "solicitation" or\n"proxies" as such terms are defined or used in Regulation 14A of the Securities Exchange Act of 1934) with respect to,\nor otherwise solicit, seek or offer to effect (i) any form of business combination or transaction involving the other party\nor any affiliate thereof, including, without limitation, a merger, tender or exchange offer or liquidation of the other\nparty's assets, (ii) any form of restructuring, recapitalization or similar transaction with respect to the other party or any\naffiliate thereof, (iii) any purchase of any securities or assets, or rights to acquire any securities or assets, of the other\nparty, (iv) any proposal to seek representation on the Board of Directors of the other party or otherwise seek to control or\ninfluence the management, Board of Directors or policies of the other party, (v) any request or proposal to waive,\nterminate or amend the provisions of this letter, or (vi) any proposal or other statement inconsistent with the terms of this\nletter, (b) instigate, encourage or assist any third party to do any of the foregoing, or (c) become a beneficial owner of\nany securities of the other party (except that each party may purchase for investment in market transactions up to 1% of\nthe other party's stock), unless and until such party has received the prior written invitation or approval of a majority of\nthe Board of Directors of the other party to do any of the foregoing. The foregoing shall not apply to either party's\nRepresentatives effecting or recommending transactions in the other party's securities in the ordinary course of their\nbusiness as, without limitation, an investment advisor, broker, dealer in securities, market maker, specialist or block\npositioner. (b) The provisions of the foregoing paragraph shall not apply, and the Company shall be free to engage in any\nof the activities otherwise prohibited by the foregoing paragraph, from the date of public announcement of or public\ndisclosure of commencement of: (i) a tender or exchange offer to acquire 20% or more of any class of then outstanding\nvoting securities of AMS by any person or group of persons (other than the Company or a group including the\nCompany); or (ii) any merger, sale or other business combination transaction (A) pursuant to which any class of\noutstanding voting securities of AMS would be converted into cash or securities of another person or group of persons\nacting as a group (other than the Company or a group including the Company) with the result that 20% or more of any\nclass of then outstanding voting securities of AMS would be owned by persons other than the then current holders of\nsuch class of voting securities of AMS or (B) which would result in all or a substantial portion of the AMS's assets being\nsold to any person or group (other than the Company or a group including the Company), to the earlier of the date of\ncompletion of the said tender offer or business transaction and the date of withdrawal or cancellation of same; provided,\nhowever, that this paragraph 6(b) shall not apply in the event such tender offer or business transaction is commenced\nwith the consent of AMS. - 4 - 7. Remedies. Each party agrees that money damages would not be a sufficient remedy for\nany breach of any provision of this Agreement by the other party or any of its Representatives, and that in addition to all\nother remedies which any party hereto may have, each party shall be entitled to specific performance and injunctive or\nother equitable relief as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies\nfor a breach of this Agreement but shall be in addition to all other remedies available at law or in equity. No failure or\ndelay by any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor\nshall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder. 8. Miscellaneous. (a) No License. Neither party grants a license, by implication or\notherwise, under any of its patents, trade secrets or other intellectual property rights to the Receiving Party. The terms of\nthis Agreement shall not be construed to limit either party's right to independently develop or acquire products without\nuse of the other party's Evaluation Material. Nothing in this Agreement will be construed as a representation or\nagreement that the Receiving Party will not develop, or have developed for it, products, concepts, systems or techniques\nthat are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the\nEvaluation Material, provided that the Receiving Party does not violate any of its obligations under this Agreement in\nconnection with such development. (b) Entire Agreement. This Agreement contains the sole and entire agreement\nbetween the parties with respect to the confidentiality of the Evaluation Material and the confidentiality of their\ndiscussions, negotiations and investigations concerning a Transaction. (c) Amendment and Waiver. This Agreement may\nbe amended, modified or waived only by a separate written instrument duly signed and delivered by or on behalf of both\nparties. (d) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect\nthe validity or enforceability of any other provision of this Agreement, unless the enforcement of such provision in such\ncircumstances would be inequitable. (e) No Obligation to Complete a Transaction. This Agreement is not intended to,\nand does not, constitute an agreement, or impose any obligation, to consummate a Transaction, to conduct or continue\nnegotiations with respect to a Transaction, or to enter into a definitive Transaction agreement. Neither party shall have\nany rights or obligations of any kind whatsoever with respect to a Transaction by virtue of this Agreement or by virtue of\nany other written or oral expression by the parties' respective Representatives unless and until a definitive Transaction\nagreement between the parties is executed and delivered by both parties. Both parties further acknowledge and agree that\neach party reserves the right, in its sole discretion, to provide or not to provide Evaluation Material to the Receiving\nParty under this Agreement, to reject any and all proposals made by the other party or any of its Representatives with\nregard to a Transaction, and to terminate discussions and negotiations at any time for any reason or no reason. If either\nparty determines not to proceed with negotiations with respect to a Transaction, it will promptly inform the other party of\nsuch determination. (f) Governing Law; Forum. This Agreement shall be governed by, and construed in accordance with,\nthe laws of the Commonwealth of Virginia. Each party hereto consents and submits to the exclusive jurisdiction of the\ncourts of the State of Virginia and the courts of the United States located in the Eastern District of Virginia for the\nadjudication of any action, suit, or proceeding arising out of or otherwise relating to this Agreement. [Remainder of Page\nIntentionally Blank] - 5 - (g) If the foregoing correctly sets forth our agreement with respect to the matters set forth\nherein, please so indicate by signing two copies of this Agreement and returning one signed copy to me, whereupon this\nAgreement shall constitute our binding agreement with respect to the matters set forth herein. Very truly yours,\n \nAMERICAN MANAGEMENT SYSTEMS, INCORPORATED By: David\nW.H. Sharman: Senior Vice President, Corporate Development ACCEPTED AND AGREED TO AS OF THE DATE\nFIRST WRITTEN ABOVE: CACI INTERNATIONAL, INC. By: Name:\n \nTitle: -6-\n \n	EX-99.D. 15 30 y95188exv99wdw1 15.txt FORM OF NON-DISCLOSURE AGREEMENT Exhibit (d)(15)\nCONFIDENTIAL January 7, 2004 Mr. Stephen L. Waechter CACI International, Inc. 1100 North Glebe Road Arlington,\nVA 22201 Mr. Waechter: To facilitate discussions relating to a potential business combination (the "Transaction")\nbetween CACI International, Inc. (together with its subsidiaries, "Company") and American Management Systems,\nIncorporated (together with its subsidiaries, "AMS"), Company expects to make available to AMS and its\nRepresentatives (as defined) nonpublic information concerning Company, including, but not limited to information\nconcerning the businesses, condition (financial and other), operations, and prospects of Company, and AMS expects\nto\nmake available to Company and its Representatives nonpublic information concerning AMS, including, but not limited\nto information concerning the businesses, condition (financial and other), operations, and prospects of AMS. As a\ncondition to such information being made available, each party agrees that all Evaluation Material (as defined) received\nby it or its Representatives from the other party or any of any of its Representatives shall be treated in accordance with\nthis Nondisclosure and Confidentiality Agreement (this "Agreement"). 1. Certain Definitions. As used in this\nAgreement:\n(a)\n"Receiving\nParty"\nmeans\nthe\nparty\nreceiving\nEvaluation\nMaterial;\n(b)\n"Furnishing\nParty"\nmeans\nthe\nparty\nproviding Evaluation Material or causing Evaluation Material to be provided; (c) "Representatives" means the directors,\nofficers, employees, agents or advisors (including, without limitation, attorneys, accountants, investment bankers and\nconsultants) of the specified party; and (d) "Evaluation Material" means all information concerning the Furnishing Party\nor any of its subsidiaries or affiliates, whether in verbal, visual, written, electronic or other form, which is made available\nby\nthe\nFurnishing Party or any of its Representatives to the Receiving Party or any of its Representatives ("Primary\nEvaluation Material"), together, in each case, with all notes, memoranda, summaries, analyses, studies, compilations and\nother writings relating thereto or based thereon prepared by the Receiving Party or any of its Representatives\n("Derivative Evaluation Material"). Notwithstanding the foregoing, the term "Evaluation Material" shall not include\ninformation which the Receiving Party can demonstrate (u) was rightfully in the possession of the Receiving Party prior\nto disclosure by the Furnishing Party; (v) was or is independently developed by the Receiving Party without use of the\nEvaluation Material; (w) is now, or hereafter becomes, available to the public other than as a result of disclosure by the\nReceiving Party prohibited by this Agreement; (x) becomes available to the Receiving Party or any of its Representatives\non a non-confidential basis from a source other than the Furnishing Party or any of its Representatives and such source\nis\nnot, to the knowledge of the Receiving Party following reasonable inquiry, under any obligation to the Furnishing Party\nor any of its Representatives to keep such information confidential (y) is transmitted by or on behalf of the Furnishing\nParty after receiving written notification from the Receiving Party of the termination of discussions relating to the\nTransaction or written instructions from the Receiving Party not to furnish any further Evaluation Material; or (z)\nis\ndisclosed as provided in Paragraph 2(b). 2. Confidentiality and Use of Evaluation Material. (a) Confidentiality\nof\nEvaluation Material. All Evaluation Material (i) shall be used solely for the purpose of evaluating and considering the\nTransaction; (ii) shall be kept strictly confidential by the Receiving Party; and (iii) shall be provided by the Receiving\nParty solely to those of its Representatives to whom disclosure is reasonably deemed to be required to facilitate the\nReceiving Party's evaluation or consideration of the Transaction The parties intend to restrict the dissemination of\nEvaluation\nMaterial to as small a working group as practicable. All Evaluation Material is and shall remain the property\nof the Furnishing Party. Before providing access to Evaluation Material to any Representative, the Receiving Party shall\ninform such Representative of the contents of this Agreement and the confidentiality of the Evaluation Material, and\nshall advise such Representative that, by accepting possession of or access to such information, such Representative is\nagreeing to be bound by this Agreement. Each party shall instruct its Representatives to observe the terms of this\nAgreement and shall be responsible for any breach of this Agreement by any of its Representatives. (b) Compulsory\nDisclosure of Evaluation Material. If the Receiving Party is requested in any judicial or administrative proceeding, or by\nany governmental or regulatory authority, to disclose any Evaluation Material (whether by deposition, interrogatory,\nrequest for documents, subpoena, civil investigative demand or otherwise), the Receiving Party shall give the Furnishing\nParty prompt notice of such request so that the Furnishing Party may seek an appropriate protective order, and, upon\nthe\nFurnishing Party's request and at the Furnishing Party's expense, shall cooperate with the Furnishing Party in seeking\nsuch an order. If the Receiving Party is nonetheless compelled to disclose Evaluation Material, the Receiving Party shall\ndisclose only that portion of the Evaluation Material which the Receiving Party is legally required to disclose and, upon\nthe\nFurnishing\nParty's\nrequest\nand\nat\nthe\nFurnishing\nParty's\nexpense,\nshall\nuse\ncommercially\nreasonable\nefforts\nto\nobtain\nassurances that confidential treatment will be accorded to such Evaluation Material to the extent such assurances are\navailable. Subject to the foregoing conditions and limitations, the Receiving Party may disclose Evaluation Material\nwithout liability hereunder. (c) Disclosure to Tax Authorities. Notwithstanding anything herein to the contrary, except\nwhere such disclosure would be prohibited under U.S. securities laws, any party to this Agreement (and each employee,\nrepresentative or other agent thereof) may disclose to any and all persons, without limitation of any kind, the tax\ntreatment and tax structure of the proposed Transaction and all materials of any kind (including opinions or other tax\nanalyses) that are provided to the party relating to such tax treatment and tax structure. For this purpose, a "tax structure"\nmeans any facts relevant to the U.S. federal income tax treatment of the proposed Transaction and does not include\ninformation relating to the identity of the parties. (d) Other Public Disclosure. Except (i) for such public disclosure as\nmay be necessary, in the good faith judgment of the disclosing party following consultation with outside counsel, for the\ndisclosing party not to be in violation of any applicable law, regulation, order or listing agreement, or (ii) with the prior\nwritten consent of the other party, neither party shall: (A) make any disclosure (and each party shall direct its\nRepresentatives not to make any disclosure) to any person of (1) the fact that discussions, negotiations or investigations\nare taking or have taken place concerning a Transaction, (2) the existence or contents of this Agreement, or the fact that\neither\nparty\nhas requested or received Evaluation Material from the other party, or (3) any of the terms, conditions\nor\nother facts with respect to any proposed Transaction, including the status thereof, or (B) make any public statement\nconcerning the proposed Transaction. If either party proposes to make any disclosure in reliance on clause (i) above, the\ndisclosing party shall, if practicable, provide the other party with the text of the proposed disclosure as far in advance of\nits disclosure as is practicable and shall in good faith consult with and consider the suggestions of the other party\nconcerning the nature and scope of the information it proposes to disclose. 2 - (e) Securities Law Restrictions. Each\nparty acknowledges that the Evaluation Material may contain material nonpublic information concerning the Furnishing\nParty. Each party further acknowledges its awareness of the restrictions imposed by federal and state securities laws on\npersons in possession of material nonpublic information, and agrees that while it is in possession of material nonpublic\ninformation with respect to the other party, it shall not purchase or sell any securities of the other party, or communicate\nsuch information to any third party, in violation of applicable law. Nothing herein shall constitute an admission by either\nparty that any Evaluation Material in fact contains material nonpublic information concerning the Furnishing Party. (f)\nContact with Employees and Representatives. Neither party shall communicate with any employee of the other party\nregarding\nthe\nTransaction\nor\ndisclose\nany\nEvaluation\nMaterial\nto\nany\nemployee\nor\nRepresentative\nof\nthe\nother\nparty,\nother\nthan the employees and Representatives named on the working group lists exchanged by the parties from time to time.\n3.\nAccuracy of Evaluation Material; No Representations or Warranties. Each party acknowledges and agrees (a) that no\nrepresentation or warranty, express or implied, is made by either party, or any of its respective Representatives, as to the\naccuracy or completeness of the Evaluation Material and (b) that the parties shall be entitled to rely only on those\nrepresentations\nand\nwarranties\n(if\nany)\nthat\nmay\nbe\nmade\nin\na\ndefinitive\nwritten\nTransaction\nagreement,\nsigned\nand\ndelivered by both parties. Unless otherwise provided in the definitive written Transaction agreement, neither the\nFurnishing Party nor any of its Representatives shall have any liability to the Receiving Party or any of its\nRepresentatives on account of the use of any Evaluation Material by the Receiving Party or any of its Representatives\nor\nany inaccuracy therein or omission therefrom. 4. Return and Destruction of Evaluation Material. At any time after\ntermination of discussions by either party to this Agreement with respect to the Transaction, upon the request of the\nFurnishing Party, the Receiving Party shall promptly (and in no event later than five business days after such request) (a)\nreturn or cause to be returned to the Furnishing Party all copies of all Primary Evaluation Material in the possession or\ncontrol of the Receiving Party or its Representatives which is in a visual or written format and erase or destroy all copies\nof all such Primary Evaluation Material which is stored in electronic format (and certify to the Furnishing Party such\nerasure or destruction), and (b) destroy or cause to be destroyed (and certify such destruction to the Furnishing Party) all\nDerivative Evaluation Material in the possession or control of the Receiving Party or any of its Representatives Nothing\nherein shall obligate the Receiving Party to provide any Derivative Evaluation Material to the Furnishing Party.\nNotwithstanding the return, destruction or erasure of Evaluation Material hereunder, the Receiving Party and its\nRepresentatives shall continue to be bound by their confidentiality and other obligations hereunder. 5. Non-solicitation of\nEmployees. Each party agrees not to directly or indirectly solicit for employment any management employees or other\ncurrent employees of the other party to whom a party may be directly or indirectly introduced or otherwise have contact\nwith as a result of its consideration of a Transaction for a period of one year after the date of this letter, without the prior\nwritten consent of the other party, provided that neither party will be restricted from making any general\nsolicitation\nfor\nemployees or public advertising of employment opportunities (including through the use of employment agencies)\nnot\nspecifically directed at such persons, and provided further that neither party will be restricted in hiring any such person\nwho responds to any such general or public advertising. - 3 6. Standstill. (a) Each party agrees that the Evaluation\nMaterial is being furnished to the other party in consideration of their respective agreement that neither party nor its\nrespective Representatives will, for a period of one year from the date hereof, directly or indirectly, alone or with others,\n(a) negotiate with or provide any information to the other party with respect to, or make any statement or proposal to the\nBoard of Directors of, such other party, to any of its agents or to any stockholder of such other party with respect to, or\nmake any public announcement or proposal or offer whatsoever (including, but not limited to any "solicitation" or\n"proxies" as such terms are defined or used in Regulation 14A of the Securities Exchange Act of 1934) with respect to,\nor otherwise solicit, seek or offer to effect (i) any form of business combination or transaction involving the other party\nor any affiliate thereof, including, without limitation, a merger, tender or exchange offer or liquidation of the other\nparty's assets, (ii) any form of restructuring, recapitalization or similar transaction with respect to the other party or any\naffiliate\nthereof, (iii) any purchase of any securities or assets, or rights to acquire any securities or assets, of the other\nparty, (iv) any proposal to seek representation on the Board of Directors of the other party or otherwise seek to control or\ninfluence the management, Board of Directors or policies of the other party, (v) any request or proposal to waive,\nterminate or amend the provisions of this letter, or (vi) any proposal or other statement inconsistent with the terms of this\nletter, (b) instigate, encourage or assist any third party to do any of the foregoing, or (c) become a beneficia owner of\nany securities of the other party (except that each party may purchase for investment in market transactions\nup\nto\n1%\nof\nthe other party's stock), unless and until such party has received the prior written invitation or approva of a majority of\nthe Board of Directors of the other party to do any of the foregoing. The foregoing shall not apply to either party's\nRepresentatives effecting or recommending transactions in the other party's securities in the ordinary course of their\nbusiness as, without limitation, an investment advisor, broker, dealer in securities, market maker, specialist or block\npositioner (b) The provisions of the foregoing paragraph shall not apply, and the Company shall be free to engage in any\nof the activities otherwise prohibited by the foregoing paragraph, from the date of public announcement of or public\ndisclosure of commencement of: (i) a tender or exchange offer to acquire 20% or more of any class of then outstanding\nvoting securities of AMS by any person or group of persons (other than the Company or a group including the\nCompany); or (ii) any merger, sale or other business combination transaction (A) pursuant to which any class of\noutstanding voting securities of AMS would be converted into cash or securities of another person or group of persons\nacting as a group (other than the Company or a group including the Company) with the result that 20% or more of any\nclass of then outstanding voting securities of AMS would be owned by persons other than the then current holders of\nsuch class of voting securities of AMS or (B) which would result in all or a substantial portion of the AMS's assets being\nsold to any person or group (other than the Company or a group including the Company), to the earlier of the date of\ncompletion of the said tender offer or business transaction and the date of withdrawal or cancellation of same; provided,\nhowever, that this paragraph 6(b) shall not apply in the event such tender offer or business transaction is commenced\nwith the consent of AMS. 4 7. Remedies. Each party agrees that money damages would not be a sufficient remedy for\nany breach of any provision of this Agreement by the other party or any of its Representatives, and that in addition to all\nother remedies which any party hereto may have, each party shall be entitled to specific performance and injunctive or\nother equitable relief as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies\nfor a breach of this Agreement but shall be in addition to all other remedies available at law or in equity.\nNo\nfailure\nor\ndelay by any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor\nshall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder. 8. Miscellaneous. (a) No License. Neither party grants a license, by implication or\notherwise, under any of its patents, trade secrets or other intellectual property rights to the Receiving Party. The terms\nof\nthis\nAgreement\nshall\nnot\nbe\nconstrued\nto\nlimit\neither\nparty's\nright\nto\nindependently\ndevelop\nor\nacquire\nproducts\nwithout\nuse of the other party's Evaluation Material. Nothing in this Agreement will be construed as a representation or\nagreement that the Receiving Party will not develop, or have developed for it, products, concepts, systems or techniques\nthat are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the\nEvaluation Material, provided that the Receiving Party does not violate any of its obligations under this Agreement in\nconnection with such development. (b) Entire Agreement. This Agreement contains the sole and entire agreement\nbetween the parties with respect to the confidentiality of the Evaluation Material and the confidentiality of their\ndiscussions, negotiations and investigations concerning a Transaction. (c) Amendment and Waiver. This Agreement may\nbe amended, modified or waived only by a separate written instrument duly signed and delivered by or on behalf of both\nparties. (d) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect\nthe validity or enforceability of any other provision of this Agreement, unless the enforcement of such provision in such\ncircumstances would be inequitable. (e) No Obligation to Complete a Transaction. This Agreement is not intended to,\nand does not, constitute an agreement, or impose any obligation, to consummate a Transaction, to conduct or continue\nnegotiations\nwith\nrespect\nto\na\nTransaction,\nor\nto\nenter\ninto\na\ndefinitive\nTransaction\nagreement.\nNeither\nparty\nshall\nhave\nany rights or obligations of any kind whatsoever with respect to a Transaction by virtue of this Agreement or by virtue of\nany other written or oral expression by the parties' respective Representatives unless and until a definitive Transaction\nagreement between the parties is executed and delivered by both parties. Both parties further acknowledge and agree that\neach party reserves the right, in its sole discretion, to provide or not to provide Evaluation Material to the Receiving\nParty\nunder\nthis\nAgreement,\nto\nreject\nany\nand\nall\nproposals\nmade\nby\nthe\nother\nparty\nor\nany\nof\nits\nRepresentatives\nwith\nregard to a Transaction, and to terminate discussions and negotiations at any time for any reason or no reason. If either\nparty determines not to proceed with negotiations with respect to a Transaction, it will promptly inform the other party of\nsuch determination. (f) Governing Law; Forum. This Agreement shall be governed by, and construed in accordance with,\nthe laws of the Commonwealth of Virginia. Each party hereto consents and submits to the exclusive jurisdiction of the\ncourts of the State of Virginia and the courts of the United States located in the Eastern District of Virginia for the\nadjudication of any action, suit, or proceeding arising out of or otherwise relating to this Agreement. [Remainder of Page\nIntentionally Blank] 5 (g) If the foregoing correctly sets forth our agreement with respect to the matters set forth\nherein, please so indicate by signing two copies of this Agreement and returning one signed copy to me, whereupon this\nAgreement shall constitute our binding agreement with respect to the matters set forth herein. Very truly yours,\nAMERICAN MANAGEMENT SYSTEMS, INCORPORATED By:\nDavid\nW.H. Sharman: Senior Vice President, Corporate Development ACCEPTED AND AGREED TO AS OF THE DATE\nFIRST WRITTEN ABOVE: CACI INTERNATIONAL, INC. By\nName:\nTitle:\n6	EX-99.D.15 30 y95188exv99wdw15.txt FORM OF NON-DISCLOSURE AGREEMENT Exhibit (d)(15)\nCONFIDENTIAL January 7, 2004 Mr. Stephen L. Waechter CACI International, Inc. 1100 North Glebe Road Arlington,\nVA 22201 Mr. Waechter: To facilitate discussions relating to a potential business combination (the "Transaction")\nbetween CACI International, Inc. (together with its subsidiaries, "Company") and American Management Systems,\nIncorporated (together with its subsidiaries, "AMS"), Company expects to make available to AMS and its\nRepresentatives (as defined) nonpublic information concerning Company, including, but not limited to information\nconcerning the businesses, condition (financial and other), operations, and prospects of Company, and AMS expects to\nmake available to Company and its Representatives nonpublic information concerning AMS, including, but not limited\nto information concerning the businesses, condition (financial and other), operations, and prospects of AMS. As a\ncondition to such information being made available, each party agrees that all Evaluation Material (as defined) received\nby it or its Representatives from the other party or any of any of its Representatives shall be treated in accordance with\nthis Nondisclosure and Confidentiality Agreement (this "Agreement"). 1. Certain Definitions. As used in this\nAgreement: (a) "Receiving Party" means the party receiving Evaluation Material; (b) "Furnishing Party" means the party\nproviding Evaluation Material or causing Evaluation Material to be provided; (c) "Representatives" means the directors,\nofficers, employees, agents or advisors (including, without limitation, attorneys, accountants, investment bankers and\nconsultants) of the specified party; and (d) "Evaluation Material" means all information concerning the Furnishing Party\nor any of its subsidiaries or affiliates, whether in verbal, visual, written, electronic or other form, which is made available\nby the Furnishing Party or any of its Representatives to the Receiving Party or any of its Representatives ("Primary\nEvaluation Material"), together, in each case, with all notes, memoranda, summaries, analyses, studies, compilations and\nother writings relating thereto or based thereon prepared by the Receiving Party or any of its Representatives\n("Derivative Evaluation Material"). Notwithstanding the foregoing, the term "Evaluation Material" shall not include\ninformation which the Receiving Party can demonstrate (u) was rightfully in the possession of the Receiving Party prior\nto disclosure by the Furnishing Party; (v) was or is independently developed by the Receiving Party without use of the\nEvaluation Material; (w) is now, or hereafter becomes, available to the public other than as a result of disclosure by the\nReceiving Party prohibited by this Agreement; (x) becomes available to the Receiving Party or any of its Representatives\non a non-confidential basis from a source other than the Furnishing Party or any of its Representatives and such source is\nnot, to the knowledge of the Receiving Party following reasonable inquiry, under any obligation to the Furnishing Party\nor any of its Representatives to keep such information confidential; (y) is transmitted by or on behalf of the Furnishing\nParty after receiving written notification from the Receiving Party of the termination of discussions relating to the\nTransaction or written instructions from the Receiving Party not to furnish any further Evaluation Material; or (z) is\ndisclosed as provided in Paragraph 2(b). 2. Confidentiality and Use of Evaluation Material. (a) Confidentiality of\nEvaluation Material. All Evaluation Material (i) shall be used solely for the purpose of evaluating and considering the\nTransaction; (ii) shall be kept strictly confidential by the Receiving Party; and (iii) shall be provided by the Receiving\nParty solely to those of its Representatives to whom disclosure is reasonably deemed to be required to facilitate the\nReceiving Party's evaluation or consideration of the Transaction. The parties intend to restrict the dissemination of\nEvaluation Material to as small a working group as practicable. All Evaluation Material is and shall remain the property\nof the Furnishing Party. Before providing access to Evaluation Material to any Representative, the Receiving Party shall\ninform such Representative of the contents of this Agreement and the confidentiality of the Evaluation Material, and\nshall advise such Representative that, by accepting possession of or access to such information, such Representative is\nagreeing to be bound by this Agreement. Each party shall instruct its Representatives to observe the terms of this\nAgreement and shall be responsible for any breach of this Agreement by any of its Representatives. (b) Compulsory\nDisclosure of Evaluation Material. If the Receiving Party is requested in any judicial or administrative proceeding, or by\nany governmental or regulatory authority, to disclose any Evaluation Material (whether by deposition, interrogatory,\nrequest for documents, subpoena, civil investigative demand or otherwise), the Receiving Party shall give the Furnishing\nParty prompt notice of such request so that the Furnishing Party may seek an appropriate protective order, and, upon the\nFurnishing Party's request and at the Furnishing Party's expense, shall cooperate with the Furnishing Party in seeking\nsuch an order. If the Receiving Party is nonetheless compelled to disclose Evaluation Material, the Receiving Party shall\ndisclose only that portion of the Evaluation Material which the Receiving Party is legally required to disclose and, upon\nthe Furnishing Party's request and at the Furnishing Party's expense, shall use commercially reasonable efforts to obtain\nassurances that confidential treatment will be accorded to such Evaluation Material to the extent such assurances are\navailable. Subject to the foregoing conditions and limitations, the Receiving Party may disclose Evaluation Material\nwithout liability hereunder. (c) Disclosure to Tax Authorities. Notwithstanding anything herein to the contrary, except\nwhere such disclosure would be prohibited under U.S . securities laws, any party to this Agreement (and each employee,\nrepresentative or other agent thereof) may disclose to any and all persons, without limitation of any kind, the tax\ntreatment and tax structure of the proposed Transaction and all materials of any kind (including opinions or other tax\nanalyses) that are provided to the party relating to such tax treatment and tax structure. For this purpose, a "tax structure"\nmeans any facts relevant to the U.S . federal income tax treatment of the proposed Transaction and does not include\ninformation relating to the identity of the parties. (d) Other Public Disclosure. Except (i) for such public disclosure as\nmay be necessary, in the good faith judgment of the disclosing party following consultation with outside counsel, for the\ndisclosing party not to be in violation of any applicable law, regulation, order or listing agreement, or (ii) with the prior\nwritten consent of the other party, neither party shall: (A) make any disclosure (and each party shall direct its\nRepresentatives not to make any disclosure) to any person of (1) the fact that discussions, negotiations or investigations\nare taking or have taken place concerning a Transaction, (2) the existence or contents of this Agreement, or the fact that\neither party has requested or received Evaluation Material from the other party, or (3) any of the terms, conditions or\nother facts with respect to any proposed Transaction, including the status thereof, or (B) make any public statement\nconcerning the proposed Transaction. If either party proposes to make any disclosure in reliance on clause (i) above, the\ndisclosing party shall, if practicable, provide the other party with the text of the proposed disclosure as far in advance of\nits disclosure as is practicable and shall in good faith consult with and consider the suggestions of the other party\nconcerning the nature and scope of the information it proposes to disclose. - 2 - (e) Securities Law Restrictions. Each\nparty acknowledges that the Evaluation Material may contain material nonpublic information concerning the Furnishing\nParty. Each party further acknowledges its awareness of the restrictions imposed by federal and state securities laws on\npersons in possession of material nonpublic information, and agrees that while it is in possession of material nonpublic\ninformation with respect to the other party, it shall not purchase or sell any securities of the other party, or communicate\nsuch information to any third party, in violation of applicable law. Nothing herein shall constitute an admission by either\nparty that any Evaluation Material in fact contains material nonpublic information concerning the Furnishing Party. (f)\nContact with Employees and Representatives. Neither party shall communicate with any employee of the other party\nregarding the Transaction or disclose any Evaluation Material to any employee or Representative of the other party, other\nthan the employees and Representatives named on the working group lists exchanged by the parties from time to time. 3.\nAccuracy of Evaluation Material; No Representations or Warranties. Each party acknowledges and agrees (a) that no\nrepresentation or warranty, express or implied, is made by either party, or any of its respective Representatives, as to the\naccuracy or completeness of the Evaluation Material and (b) that the parties shall be entitled to rely only on those\nrepresentations and warranties (if any) that may be made in a definitive written Transaction agreement, signed and\ndelivered by both parties. Unless otherwise provided in the definitive written Transaction agreement, neither the\nFurnishing Party nor any of its Representatives shall have any liability to the Receiving Party or any of its\nRepresentatives on account of the use of any Evaluation Material by the Receiving Party or any of its Representatives or\nany inaccuracy therein or omission therefrom. 4. Return and Destruction of Evaluation Material. At any time after\ntermination of discussions by either party to this Agreement with respect to the Transaction, upon the request of the\nFurnishing Party, the Receiving Party shall promptly (and in no event later than five business days after such request) (a)\nreturn or cause to be returned to the Furnishing Party all copies of all Primary Evaluation Material in the possession or\ncontrol of the Receiving Party or its Representatives which is in a visual or written format and erase or destroy all copies\nof all such Primary Evaluation Material which is stored in electronic format (and certify to the Furnishing Party such\nerasure or destruction), and (b) destroy or cause to be destroyed (and certify such destruction to the Furnishing Party) all\nDerivative Evaluation Material in the possession or control of the Receiving Party or any of its Representatives. Nothing\nherein shall obligate the Receiving Party to provide any Derivative Evaluation Material to the Furnishing Party.\nNotwithstanding the return, destruction or erasure of Evaluation Material hereunder, the Receiving Party and its\nRepresentatives shall continue to be bound by their confidentiality and other obligations hereunder. 5. Non-solicitation of\nEmployees. Each party agrees not to directly or indirectly solicit for employment any management employees or other\ncurrent employees of the other party to whom a party may be directly or indirectly introduced or otherwise have contact\nwith as a result of its consideration of a Transaction for a period of one year after the date of this letter, without the prior\nwritten consent of the other party, provided that neither party will be restricted from making any general solicitation for\nemployees or public advertising of employment opportunities (including through the use of employment agencies) not\nspecifically directed at such persons, and provided further that neither party will be restricted in hiring any such person\nwho responds to any such general or public advertising. - 3 - 6. Standstill. (a) Each party agrees that the Evaluation\nMaterial is being furnished to the other party in consideration of their respective agreement that neither party nor its\nrespective Representatives will, for a period of one year from the date hereof, directly or indirectly, alone or with others,\n(a) negotiate with or provide any information to the other party with respect to, or make any statement or proposal to the\nBoard of Directors of, such other party, to any of its agents or to any stockholder of such other party with respect to, or\nmake any public announcement or proposal or offer whatsoever (including, but not limited to any "solicitation" or\n"proxies" as such terms are defined or used in Regulation 14A of the Securities Exchange Act of 1934) with respect to,\nor otherwise solicit, seek or offer to effect (i) any form of business combination or transaction involving the other party\nor any affiliate thereof, including, without limitation, a merger, tender or exchange offer or liquidation of the other\nparty's assets, (ii) any form of restructuring, recapitalization or similar transaction with respect to the other party or any\naffiliate thereof, (iii) any purchase of any securities or assets, or rights to acquire any securities or assets, of the other\nparty, (iv) any proposal to seek representation on the Board of Directors of the other party or otherwise seek to control or\ninfluence the management, Board of Directors or policies of the other party, (v) any request or proposal to waive,\nterminate or amend the provisions of this letter, or (vi) any proposal or other statement inconsistent with the terms of this\nletter, (b) instigate, encourage or assist any third party to do any of the foregoing, or (c) become a beneficial owner of\nany securities of the other party (except that each party may purchase for investment in market transactions up to 1% of\nthe other party's stock), unless and until such party has received the prior written invitation or approval of a majority of\nthe Board of Directors of the other party to do any of the foregoing. The foregoing shall not apply to either party's\nRepresentatives effecting or recommending transactions in the other party's securities in the ordinary course of their\nbusiness as, without limitation, an investment advisor, broker, dealer in securities, market maker, specialist or block\npositioner. (b) The provisions of the foregoing paragraph shall not apply, and the Company shall be free to engage in any\nof the activities otherwise prohibited by the foregoing paragraph, from the date of public announcement of or public\ndisclosure of commencement of: (i) a tender or exchange offer to acquire 20% or more of any class of then outstanding\nvoting securities of AMS by any person or group of persons (other than the Company or a group including the\nCompany); or (ii) any merger, sale or other business combination transaction (A) pursuant to which any class of\noutstanding voting securities of AMS would be converted into cash or securities of another person or group of persons\nacting as a group (other than the Company or a group including the Company) with the result that 20% or more of any\nclass of then outstanding voting securities of AMS would be owned by persons other than the then current holders of\nsuch class of voting securities of AMS or (B) which would result in all or a substantial portion of the AMS's assets being\nsold to any person or group (other than the Company or a group including the Company), to the earlier of the date of\ncompletion of the said tender offer or business transaction and the date of withdrawal or cancellation of same; provided,\nhowever, that this paragraph 6(b) shall not apply in the event such tender offer or business transaction is commenced\nwith the consent of AMS. - 4 - 7. Remedies. Each party agrees that money damages would not be a sufficient remedy for\nany breach of any provision of this Agreement by the other party or any of its Representatives, and that in addition to all\nother remedies which any party hereto may have, each party shall be entitled to specific performance and injunctive or\nother equitable relief as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies\nfor a breach of this Agreement but shall be in addition to all other remedies available at law or in equity. No failure or\ndelay by any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor\nshall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder. 8. Miscellaneous. (a) No License. Neither party grants a license, by implication or\notherwise, under any of its patents, trade secrets or other intellectual property rights to the Receiving Party. The terms of\nthis Agreement shall not be construed to limit either party's right to independently develop or acquire products without\nuse of the other party's Evaluation Material. Nothing in this Agreement will be construed as a representation or\nagreement that the Receiving Party will not develop, or have developed for it, products, concepts, systems or techniques\nthat are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the\nEvaluation Material, provided that the Receiving Party does not violate any of its obligations under this Agreement in\nconnection with such development. (b) Entire Agreement. This Agreement contains the sole and entire agreement\nbetween the parties with respect to the confidentiality of the Evaluation Material and the confidentiality of their\ndiscussions, negotiations and investigations concerning a Transaction. (c) Amendment and Waiver. This Agreement may\nbe amended, modified or waived only by a separate written instrument duly signed and delivered by or on behalf of both\nparties. (d) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect\nthe validity or enforceability of any other provision of this Agreement, unless the enforcement of such provision in such\ncircumstances would be inequitable. (e) No Obligation to Complete a Transaction. This Agreement is not intended to,\nand does not, constitute an agreement, or impose any obligation, to consummate a Transaction, to conduct or continue\nnegotiations with respect to a Transaction, or to enter into a definitive Transaction agreement. Neither party shall have\nany rights or obligations of any kind whatsoever with respect to a Transaction by virtue of this Agreement or by virtue of\nany other written or oral expression by the parties' respective Representatives unless and until a definitive Transaction\nagreement between the parties is executed and delivered by both parties. Both parties further acknowledge and agree that\neach party reserves the right, in its sole discretion, to provide or not to provide Evaluation Material to the Receiving\nParty under this Agreement, to reject any and all proposals made by the other party or any of its Representatives with\nregard to a Transaction, and to terminate discussions and negotiations at any time for any reason or no reason. If either\nparty determines not to proceed with negotiations with respect to a Transaction, it will promptly inform the other party of\nsuch determination. (f) Governing Law; Forum. This Agreement shall be governed by, and construed in accordance with,\nthe laws of the Commonwealth of Virginia. Each party hereto consents and submits to the exclusive jurisdiction of the\ncourts of the State of Virginia and the courts of the United States located in the Eastern District of Virginia for the\nadjudication of any action, suit, or proceeding arising out of or otherwise relating to this Agreement. [Remainder of Page\nIntentionally Blank] - 5 - (g) If the foregoing correctly sets forth our agreement with respect to the matters set forth\nherein, please so indicate by signing two copies of this Agreement and returning one signed copy to me, whereupon this\nAgreement shall constitute our binding agreement with respect to the matters set forth herein. Very truly yours,\nAMERICAN MANAGEMENT SYSTEMS, INCORPORATED By:__________________________________ David\nW.H. Sharman: Senior Vice President, Corporate Development ACCEPTED AND AGREED TO AS OF THE DATE\nFIRST WRITTEN ABOVE: CACI INTERNATIONAL, INC. By: ________________________________ Name:\n______________________________\nTitle: _______________________________ - 6 -
+7c8b01ccbf3536fad1cb037fbafc25ae.pdf	effective_date jurisdiction party term	EX-99.D.2 8 d485523dex99d2.htm EX-99 .D.2\nExhibit (d)(2)\nLOGO\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT, entered into as of this 20th day of January, 2017 by and between Ocera\nTherapeutics, Inc., a Delaware corporation, with its principal place of business at 525 University Avenue, Suite 610, Palo Alto, California 94301\n(“OCERA”), and Mallinckrodt LLC, a Delaware limited liability company, with its principal place of business at 675 McDonnell Blvd.,\nHazelwood, MO 63042 (“COMPANY”), is made with reference to the following facts:\nA. OCERA and COMPANY desire to discuss and explore a possible transaction pursuant to Ocera’s OCR-002 (the “Purpose”).\nB. In order to enable OCERA and COMPANY to discuss and explore the Purpose, each party hereto has agreed to disclose to the\nother party certain information which the parties deem to be of a confidential, proprietary and/or trade secret nature.\nC. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order\nto enable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of\nthe information of the other party in accordance with the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows:\n1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and\nconfidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical\nstudy plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes,\ntechniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of\ncustomers, or other trade secrets (collectively referred to herein as the “Proprietary Information”) of the other party which may be disclosed to or\nobtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and\nconfidentiality and avoid the unauthorized use or disclosure of the other party’s Proprietary Information, including, without limitation, taking\nsuch measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access\nto the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to\nsuch information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants\ncontained herein.\nOcera Therapeutics, Inc.\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475 -0158\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474 -0020\nwww.ocerainc.com\nNASDAQ: OCRX\n2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of\nthe other party, use or disclose the other party’s Proprietary Information for any reason or in any manner whatsoever except as may be necessary\nfor the discussion and exploration of the Purpose.\n3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY\neach agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like\ncontaining the other party’s Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the\nPurpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such\ndocuments, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA\nand COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure\ncompliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement.\n4. Proprietary Rights. OCERA and COMPANY each acknowledges that all property rights in the other party’s Proprietary Information are\nowned by the other party, and that none of such rights are owned by the party to which such Proprietary Information is disclosed. Each of the\nparties hereto further acknowledges that the other party has not granted and does not grant in this Agreement any license to the other party under\nany patent, copyright, trade secret or other proprietary right to use or reproduce any Proprietary Information of such party other than for the\nconduct of the Purpose.\n5. Exceptions. The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary\nInformation disclosed hereunder which:\na. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party;\nb. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party’s Proprietary\nInformation;\nc. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public;\nd. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third\nparty introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or\ne. is required by law or made pursuant to an order from a court or government agency.\nOcera Therapeutics, Inc.\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475 -0158\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474 -0020\nwww.ocerainc.com\nNASDAQ: OCRX\nIn claiming the benefit of any of the exceptions set forth in this Paragraph 5, the non-disclosing party shall have the burden of establishing\nthat any such portion of the Proprietary Information is subject to such exception.\n6. Term. This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of\nthe Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof.\n7. Publicity. OCERA and COMPANY hereby agree not to disclose their participation in the discussion and exploration of the Purpose, the\nexistence, terms or conditions of this Agreement, or the fact that the discussions are being held between the parties.\n8. Equitable Relief. OCERA and COMPANY acknowledge that any such breach of this Agreement could cause the other party irreparable\nharm. Accordingly, each party agrees that in the event of any breach or threatened breach of this Agreement, in addition to other remedies at law\nor in equity it may have, the party alleging a breach or threatened breach shall be entitled, without the requirement of posting a bond or other\nsecurities, to seek equitable relief, including injunctive relief and specific performance.\n9. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other\nprovision hereof.\n10. Successors and Assigns. Neither party may assign this Agreement, or the rights and obligations hereunder, without the prior written\nconsent of the other party; provided, that a party may assign this Agreement without such consent to an affiliate of such party and/or in\nconnection with the transfer or sale of all or substantially all of the business of the assigning party to which this Agreement relates, whether by\nmerger, sale of stock, sale of assets or otherwise. No assignment shall relieve either party of the performance of any accrued obligation that such\nparty may then have under this Agreement. This Agreement shall inure to the benefit of and be binding upon each party signatory hereto, its\nsuccessors and permitted assigns, subsidiaries and affiliates.\n11. Governing Law. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of\nNew York, without regard to its conflict of laws provisions within.\n12. Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning the matters discussed herein and\nsupersedes and replaces all prior agreements, understandings, writings and discussions between the parties, with respect to the subject matter of\nthis Agreement. This Agreement may be amended only by a written instrument executed by authorized representatives of the parties. This\nAgreement shall not create any obligation for either party to enter into any agreement or relationship with the other. Either party may end\ndiscussions of a possible relationship at any time and for any or no reason and each party reserves the right to disclose its own confidential\ninformation to any third party at any time. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an\noriginal and all of which shall together be deemed to constitute one Agreement.\nOcera Therapeutics, Inc.\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475 -0158\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474 -0020\nwww.ocerainc.com\nNASDAQ: OCRX\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nOCERA THERAPEUTICS, INC.\nMALLINCKRODT LLC\n/s/ Linda Grais\n/s/ Joshua Schafer\nSignature\nSignature\nLinda Grais\nJoshua Schafer\nPrinted Name\nPrinted Name\nCEO\nVice President, BD&L\nTitle\nTitle\nOcera Therapeutics, Inc.\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475 -0158\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474 -0020\nwww.ocerainc.com\nNASDAQ: OCRX	EX-99.D.2 8 d485523dex99d2.htm EX-99.D.2\nExhibit (d)(2)\n».LOGO\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT, entered into as of this 20th day of January, 2017 by and between Ocera\nTherapeutics, Inc., a Delaware corporation, with its principal place of business at 525 University Avenue, Suite 610, Palo Alto, California 94301\n(“OCERA”), and Mallinckrodt LLC, a Delaware limited liability company, with its principal place of business at 675 McDonnell Blvd.,\nHazelwood, MO 63042 (“COMPANY™), is made with reference to the following facts:\nA. OCERA and COMPANY desire to discuss and explore a possible transaction pursuant to Ocera’s OCR-002 (the “Purpose™).\nB. In order to enable OCERA and COMPANY to discuss and explore the Purpose, each party hereto has agreed to disclose to the\nother party certain information which the parties deem to be of a confidential, proprietary and/or trade secret nature.\nC. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order\nto enable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of\nthe information of the other party in accordance with the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows:\n1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and\nconfidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical\nstudy plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes,\ntechniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of\ncustomers, or other trade secrets (collectively referred to herein as the “Proprietary Information”) of the other party which may be disclosed to or\nobtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and\nconfidentiality and avoid the unauthorized use or disclosure of the other party’s Proprietary Information, including, without limitation, taking\nsuch measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access\nto the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to\nsuch information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants\ncontained herein.\nOcera Therapeutics, Inc. www.ocerainc.com\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475-0158 NASDAQ: OCRX\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474-0020\n2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of\nthe other party, use or disclose the other party’s Proprietary Information for any reason or in any manner whatsoever except as may be necessary\nfor the discussion and exploration of the Purpose.\n3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY\neach agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like\ncontaining the other party’s Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the\nPurpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such\ndocuments, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA\nand COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure\ncompliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement.\n \n4. Proprietary Rights. OCERA and COMPANY each acknowledges that all property rights in the other party’s Proprietary Information are\nowned by the other party, and that none of such rights are owned by the party to which such Proprietary Information is disclosed. Each of the\nparties hereto further acknowledges that the other party has not granted and does not grant in this Agreement any license to the other party under\nany patent, copyright, trade secret or other proprietary right to use or reproduce any Proprietary Information of such party other than for the\nconduct of the Purpose.\n5. Exceptions. The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary\nInformation disclosed hereunder which:\na. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party;\nb. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party’s Proprietary\nInformation;\nc. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public;\nd. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third\nparty introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or\ne. is required by law or made pursuant to an order from a court or government agency.\nOcera Therapeutics, Inc. www.ocerainc.com\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475-0158 NASDAQ: OCRX\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474-0020\nIn claiming the benefit of any of the exceptions set forth in this Paragraph 5, the non-disclosing party shall have the burden of establishing\nthat any such portion of the Proprietary Information is subject to such exception.\n6. Term. This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of\nthe Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof.\n7. Publicity. OCERA and COMPANY hereby agree not to disclose their participation in the discussion and exploration of the Purpose, the\nexistence, terms or conditions of this Agreement, or the fact that the discussions are being held between the parties.\n8. Equitable Relief. OCERA and COMPANY acknowledge that any such breach of this Agreement could cause the other party irreparable\nharm. Accordingly, each party agrees that in the event of any breach or threatened breach of this Agreement, in addition to other remedies at law\nor in equity it may have, the party alleging a breach or threatened breach shall be entitled, without the requirement of posting a bond or other\nsecurities, to seek equitable relief, including injunctive relief and specific performance.\n9. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other\nprovision hereof.\n10. Successors and Assigns. Neither party may assign this Agreement, or the rights and obligations hereunder, without the prior written\nconsent of the other party; provided, that a party may assign this Agreement without such consent to an affiliate of such party and/or in\nconnection with the transfer or sale of all or substantially all of the business of the assigning party to which this Agreement relates, whether by\nmerger, sale of stock, sale of assets or otherwise. No assignment shall relieve either party of the performance of any accrued obligation that such\nparty may then have under this Agreement. This Agreement shall inure to the benefit of and be binding upon each party signatory hereto, its\nsuccessors and permitted assigns, subsidiaries and affiliates.\n11. Governing Law. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of\nNew York, without regard to its conflict of laws provisions within.\n12. Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning the matters discussed herein and\nsupersedes and replaces all prior agreements, understandings, writings and discussions between the parties, with respect to the subject matter of\nthis Agreement. This Agreement may be amended only by a written instrument executed by authorized representatives of the parties. This\nAgreement shall not create any obligation for either party to enter into any agreement or relationship with the other. Either party may end\ndiscussions of a possible relationship at any time and for any or no reason and each party reserves the right to disclose its own confidential\ninformation to any third party at any time. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an\noriginal and all of which shall together be deemed to constitute one Agreement.\nOcera Therapeutics, Inc. www.ocerainc.com\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475-0158 NASDAQ: OCRX\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474-0020\nIN WITNESS WHEREQF, the parties hereto have executed this Agreement as of the day and year first above written.\nOCERA THERAPEUTICS, INC. MALLINCKRODT LLC\n/s/ Linda Grais /s/ Joshua Schafer\nSignature Signature\nLinda Grais Joshua Schafer\nPrinted Name Printed Name\nCEO Vice President, BD&L\nTitle Title\nOcera Therapeutics, Inc. www.ocerainc.com\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475-0158 NASDAQ: OCRX\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474-0020	EX-99.D.2 8 d485523dex99d2.htm EX-99.D.2\nExhibit (d)(2)\nLOGO\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT, entered into as of this 20th day of January, 2017 by and between Ocera\nTherapeutics, Inc., a Delaware corporation, with its principal place of business at 525 University Avenue, Suite 610, Palo Alto, California 94301\n("OCERA"), and Mallinckrodt LLC, a Delaware limited liability company, with its principal place of business at 675 McDonnell Blvd.,\nHazelwood, MO 63042 ("COMPANY"), is made with reference to the following facts:\nA. OCERA and COMPANY desire to discuss and explore a possible transaction pursuant to Ocera's OCR-002 (the "Purpose").\nB. In order to enable OCERA and COMPANY to discuss and explore the Purpose, each party hereto has agreed to disclose to the\nother party certain information which the parties deem to be of a confidential, proprietary and/or trade secret nature.\nC. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order\nto\nenable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of\nthe information of the other party in accordance with the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows:\n1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and\nconfidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical\nstudy plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes,\ntechniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of\ncustomers, or other trade secrets (collectively referred to herein as the "Proprietary Information") of the other party which may be disclosed to\nor\nobtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and\nconfidentiality and avoid the unauthorized use or disclosure of the other party's Proprietary Information, including, without limitation, taking\nsuch measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access\nto the other party's Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to\nsuch information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants\ncontained herein.\nOcera Therapeutics, Inc.\nwww.ocerainc.com\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475-0158\nNASDAQ: OCRX\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474-0020\n2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of\nthe other party, use or disclose the other party's Proprietary Information for any reason or in any manner whatsoever except as may be necessary\nfor the discussion and exploration of the Purpose.\n3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY\neach agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like\ncontaining the other party's Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the\nPurpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such\ndocuments, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA\nand COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure\ncompliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement.\n4. Proprietary. Rights. OCERA and COMPANY each acknowledges that all property rights in the other party's Proprietary Information are\nowned by the other party, and that none of such rights are owned by the party to which such Proprietary Information is disclosed. Each of the\nparties hereto further acknowledges that the other party has not granted and does not grant in this Agreement any license to the other party under\nany patent, copyright, trade secret or other proprietary right to use or reproduce any Proprietary Information of such party other than for the\nconduct of the Purpose.\n5. Exceptions. The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary\nInformation disclosed hereunder which:\na. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party;\nb. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party's Proprietary\nInformation;\nC. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public;\nd. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third\nparty introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or\ne. is required by law or made pursuant to an order from a court or government agency.\nOcera Therapeutics, Inc.\nwww.ocerainc.com\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475-0158\nNASDAQ: OCRX\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474-0020\nIn claiming the benefit of any of the exceptions set forth in this Paragraph 5, the non-disclosing party shall have the burden of establishing\nthat any such portion of the Proprietary Information is subject to such exception.\n6. Term. This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of\nthe Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof.\n7. Publicity.. OCERA and COMPANY hereby agree not to disclose their participation in the discussion and exploration of the Purpose, the\nexistence, terms or conditions of this Agreement, or the fact that the discussions are being held between the parties.\n8. Equitable Relief. OCERA and COMPANY acknowledge that any such breach of this Agreement could cause the other party irreparable\nharm. Accordingly, each party agrees that in the event of any breach or threatened breach of this Agreement, in addition to other remedies at law\nor\nin equity it may have, the party alleging a breach or threatened breach shall be entitled, without the requirement of posting a bond or other\nsecurities, to seek equitable relief, including injunctive relief and specific performance.\n9. Severability.. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other\nprovision hereof.\n10. Successors and Assigns. Neither party may assign this Agreement, or the rights and obligations hereunder, without the prior written\nconsent of the other party; provided, that a party may assign this Agreement without such consent to an affiliate of such party and/or in\nconnection with the transfer or sale of all or substantially all of the business of the assigning party to which this Agreement relates, whether\nby\nmerger, sale of stock, sale of assets or otherwise. No assignment shall relieve either party of the performance of any accrued obligation that such\nparty may then have under this Agreement. This Agreement shall inure to the benefit of and be binding upon each party signatory hereto,\nits\nsuccessors and permitted assigns, subsidiaries and affiliates.\n11. Governing Law. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of\nNew York, without regard to its conflict of laws provisions within.\n12. Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning the matters discussed herein and\nsupersedes and replaces all prior agreements, understandings, writings and discussions between the parties, with respect to the subject matter\nof\nthis Agreement. This Agreement may be amended only by a written instrument executed by authorized representatives of the parties. This\nAgreement shall not create any obligation for either party to enter into any agreement or relationship with the other. Either party may end\ndiscussions of a possible relationship at any time and for any or no reason and each party reserves the right to disclose its own confidential\ninformation to any third party at any time. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed\nan\noriginal and all of which shall together be deemed to constitute one Agreement.\nOcera Therapeutics, Inc.\nwww.ocerainc.com\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475-0158\nNASDAQ: OCRX\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474-0020\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nOCERA THERAPEUTICS, INC.\nMALLINCKRODT LLC\n/s/ Linda Grais\n/s/ Joshua Schafer\nSignature\nSignature\nLinda Grais\nJoshua Schafer\nPrinted Name\nPrinted Name\nCEO\nVice President, BD&L\nTitle\nTitle\nOcera Therapeutics, Inc.\nwww.ocerainc.com\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475-0158\nNASDAQ: OCRX\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474-0020	EX-99.D.2 8 d485523dex99d2.htm EX-99 .D.2\nExhibit (d)(2)\nLOGO\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT, entered into as of this 20th day of January, 2017 by and between Ocera\nTherapeutics, Inc., a Delaware corporation, with its principal place of business at 525 University Avenue, Suite 610, Palo Alto, California 94301\n(“OCERA”), and Mallinckrodt LLC, a Delaware limited liability company, with its principal place of business at 675 McDonnell Blvd.,\nHazelwood, MO 63042 (“COMPANY”), is made with reference to the following facts:\nA. OCERA and COMPANY desire to discuss and explore a possible transaction pursuant to Ocera’s OCR-002 (the “Purpose”).\nB. In order to enable OCERA and COMPANY to discuss and explore the Purpose, each party hereto has agreed to disclose to the\nother party certain information which the parties deem to be of a confidential, proprietary and/or trade secret nature.\nC. Each party hereto is willing to disclose such confidential, proprietary and trade secret information to the other party solely in order\nto enable it to discuss and explore the Purpose and for no other purpose, and each party hereto agrees that it shall maintain the confidentiality of\nthe information of the other party in accordance with the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of the foregoing, OCERA and COMPANY agree as follows:\n1. Preservation of Confidentiality. OCERA and COMPANY each agrees that it shall regard, maintain and preserve the secrecy and\nconfidentiality of any and all information and data, whether in oral or written form, including but not limited to, clinical study synopses, clinical\nstudy plans, costs, products, processes, methods, concepts, ideas, programs, formulae, apparati, chemicals, organisms, molecules, prototypes,\ntechniques, know-how, marketing plans, business plans, data, strategies, forecasts, customer or supplier lists or technical requirements of\ncustomers, or other trade secrets (collectively referred to herein as the “Proprietary Information”) of the other party which may be disclosed to or\nobtained by it pursuant to this Agreement. Each party hereto shall take reasonable and necessary measures to preserve the secrecy and\nconfidentiality and avoid the unauthorized use or disclosure of the other party’s Proprietary Information, including, without limitation, taking\nsuch measures of protection as it takes to protect its own confidential, proprietary or trade secret information. Each party hereto shall limit access\nto the other party’s Proprietary Information to those of its employees, agents, advisors, and consultants, who have a reasonable need for access to\nsuch information in connection with the discussion and exploration of the Purpose and who shall be subject to the non-disclosure covenants\ncontained herein.\nOcera Therapeutics, Inc.\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475 -0158\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474 -0020\nwww.ocerainc.com\nNASDAQ: OCRX\n2. Covenant Not to Use or Disclose. OCERA and COMPANY each agrees that it will not, at any time, without the prior written consent of\nthe other party, use or disclose the other party’s Proprietary Information for any reason or in any manner whatsoever except as may be necessary\nfor the discussion and exploration of the Purpose.\n3. Covenant Not to Reproduce. Except as may be necessary for the discussion and exploration of the Purpose, OCERA and COMPANY\neach agrees that it will make no copies, photocopies, facsimiles, or other reproductions of any documents, drawings, electronic data or the like\ncontaining the other party’s Proprietary Information. Upon conclusion or termination of the discussions between the parties regarding the\nPurpose, or forthwith upon the request of the other party, OCERA and COMPANY shall promptly destroy or return to the other party all such\ndocuments, drawings, electronic data or reproductions thereof which may have come into its possession. Notwithstanding the foregoing, OCERA\nand COMPANY may each retain one (1) copy of such information in their confidential files solely for record keeping purposes to ensure\ncompliance with this Agreement, with such copy remaining subject to the confidentiality obligations of this Agreement.\n4. Proprietary Rights. OCERA and COMPANY each acknowledges that all property rights in the other party’s Proprietary Information are\nowned by the other party, and that none of such rights are owned by the party to which such Proprietary Information is disclosed. Each of the\nparties hereto further acknowledges that the other party has not granted and does not grant in this Agreement any license to the other party under\nany patent, copyright, trade secret or other proprietary right to use or reproduce any Proprietary Information of such party other than for the\nconduct of the Purpose.\n5. Exceptions. The obligations undertaken by OCERA and COMPANY hereunder shall not apply to any portion of the Proprietary\nInformation disclosed hereunder which:\na. was known to the non-disclosing party prior to the disclosure of such Proprietary Information by the disclosing party;\nb. is independently developed by the receiving party without the use of, access to, or reference to the disclosing party’s Proprietary\nInformation;\nc. is, or shall become, other than by a breach of this Agreement by the non-disclosing party, generally available to the public;\nd. shall, by lawful means, be made available to the non-disclosing party by a third party having a right to disclose it, other than a third\nparty introduced to the non-disclosing party by the disclosing party in connection with the Purpose; or\ne. is required by law or made pursuant to an order from a court or government agency.\nOcera Therapeutics, Inc.\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475 -0158\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474 -0020\nwww.ocerainc.com\nNASDAQ: OCRX\nIn claiming the benefit of any of the exceptions set forth in this Paragraph 5, the non-disclosing party shall have the burden of establishing\nthat any such portion of the Proprietary Information is subject to such exception.\n6. Term. This Agreement shall remain in full force and effect for a period of five (5) years from the date hereof or until such time as all of\nthe Proprietary Information becomes subject to any of the exceptions set forth in Paragraph 5 hereof.\n7. Publicity. OCERA and COMPANY hereby agree not to disclose their participation in the discussion and exploration of the Purpose, the\nexistence, terms or conditions of this Agreement, or the fact that the discussions are being held between the parties.\n8. Equitable Relief. OCERA and COMPANY acknowledge that any such breach of this Agreement could cause the other party irreparable\nharm. Accordingly, each party agrees that in the event of any breach or threatened breach of this Agreement, in addition to other remedies at law\nor in equity it may have, the party alleging a breach or threatened breach shall be entitled, without the requirement of posting a bond or other\nsecurities, to seek equitable relief, including injunctive relief and specific performance.\n9. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other\nprovision hereof.\n10. Successors and Assigns. Neither party may assign this Agreement, or the rights and obligations hereunder, without the prior written\nconsent of the other party; provided, that a party may assign this Agreement without such consent to an affiliate of such party and/or in\nconnection with the transfer or sale of all or substantially all of the business of the assigning party to which this Agreement relates, whether by\nmerger, sale of stock, sale of assets or otherwise. No assignment shall relieve either party of the performance of any accrued obligation that such\nparty may then have under this Agreement. This Agreement shall inure to the benefit of and be binding upon each party signatory hereto, its\nsuccessors and permitted assigns, subsidiaries and affiliates.\n11. Governing Law. This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of\nNew York, without regard to its conflict of laws provisions within.\n12. Entire Agreement. This Agreement constitutes the entire agreement of the parties concerning the matters discussed herein and\nsupersedes and replaces all prior agreements, understandings, writings and discussions between the parties, with respect to the subject matter of\nthis Agreement. This Agreement may be amended only by a written instrument executed by authorized representatives of the parties. This\nAgreement shall not create any obligation for either party to enter into any agreement or relationship with the other. Either party may end\ndiscussions of a possible relationship at any time and for any or no reason and each party reserves the right to disclose its own confidential\ninformation to any third party at any time. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed an\noriginal and all of which shall together be deemed to constitute one Agreement.\nOcera Therapeutics, Inc.\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475 -0158\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474 -0020\nwww.ocerainc.com\nNASDAQ: OCRX\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nOCERA THERAPEUTICS, INC.\nMALLINCKRODT LLC\n/s/ Linda Grais\n/s/ Joshua Schafer\nSignature\nSignature\nLinda Grais\nJoshua Schafer\nPrinted Name\nPrinted Name\nCEO\nVice President, BD&L\nTitle\nTitle\nOcera Therapeutics, Inc.\nCorporate Headquarters: 525 University Ave, Suite 610, Palo Alto, CA 94301 650-475 -0158\nRTP Office: 5001 S. Miami Blvd, Suite 300, Durham NC 27703 919-474 -0020\nwww.ocerainc.com\nNASDAQ: OCRX
+7cca7145fbf23ab7924011e345902142.pdf	effective_date jurisdiction party term	Exhibit 10.19\nCONSULTING AND CONFIDENTIALITY AGREEMENT\nThis Consulting and Confidentiality Agreement (this “Agreement”) is entered into as of September 19, 2005 and has an effective date\nof September 19, 2005, and is by and between by and between MIKOHN GAMING CORPORATION, a Nevada corporation and\nits subsidiaries and affiliates doing business as PROGRESSIVE GAMING INTERNATIONAL CORPORATION (“PGIC”) with\nits principal place of business located at 920 Pilot Road, Las Vegas, Nevada 89119, and Michael F. Dreitzer, an individual\n(“Contractor”).\nWHEREAS, PGIC desires to engage a contractor for the performance of certain services; and\nWHEREAS, Contractor desires to perform such services for PGIC.\nNOW THEREFORE, for valuable consideration, the receipt of which is hereby acknowledged, the parties hereby agree as follows:\n1. Engagement of Services.\nA.\nPGIC hereby engages Contractor to perform the services described in this Agreement, and Contractor agrees to perform\nservices for PGIC as follows: Provide PGIC with consulting services for up to 40 hours per month during the Term (as\ndefined below) with regard to PGIC’s regulatory matters, and with any additional assignments and tasks as shall be assigned\nto Contractor by PGIC (the “Work,” which shall also include any services, material, output, work, or work product arising\nout of this Agreement or produced in connection with this Agreement).\nB.\nTime is of the essence. The Work shall be performed in a good, workman-like manner in accordance with the standards of\nContractor’s profession and such other accepted standards as may be applicable to Work of this kind. Contractor shall\ndevote the necessary time and attention to the Work as is reasonably required to diligently, timely, efficiently, and\nprofessionally complete the Work no later than the time necessary or required by deadlines.\nC.\nAll Work must meet with PGIC’s approval, which is to be determined in PGIC’s sole discretion, which discretion shall not\nto be unreasonably withheld.\nD.\nPGIC specifically selected Contractor to perform the Work based upon PGIC receiving Contractor’s personal service and\ntherefore Contractor may not subcontract or otherwise delegate its obligations under this Agreement without PGIC’s prior\nwritten consent and any attempted assignment contrary to this provision shall be void.\nE.\nContractor acknowledges that PGIC does business in a highly regulated gaming industry and that certain suitability\nrequirements for Contractor must be strictly met in order to perform its Services for PGIC. Accordingly, Contractor shall\nsubmit to all PGIC requested screening, including but not limited to any or all of the following; alcohol & substance abuse\nscreening, fingerprinting, personal history (including criminal background) and/or personal financial disclosures\n(collectively, “Prerequisite Screening”). The Prerequisite Screening is a condition precedent to this Agreement and/or\nperforming any Work under this Agreement. Contractor further agrees to execute any and all releases for PGIC to complete\nthe Prerequisite Screening. Should Contractor not successfully complete and/or pass the Prerequisite Screening or any later\nscreenings, this Agreement shall be immediately terminated without any liability to PGIC or Contractor\n1\n2. Compensation and Term.\nA.\nFees. PGIC will pay Contractor for complete and full performance for all Work specified in this Agreement and for all\nrelated tasks the amount of Six Thousand Five Hundred and 00/100 U.S. Dollars ($6,500.00) per month (“Compensation”).\nThe Compensation is inclusive of any federal, state, municipal and other governmental taxes, franchise, sales, use, or other\ntaxes (included but not limited to value added taxes) now or hereafter imposed on the Contractor by any tax authority.\nB.\nExpenses. Contractor will be reimbursed pursuant to PGIC’s standard policy as may be modified from time to time at\nPGIC’s sole discretion for any reasonable expenses incurred in connection with the performance of the Work. All expenses\nmust be pre-approved by PGIC, and Contractor shall keep full and accurate records and documentation to substantiate the\namounts claimed in any invoice, which records shall be made available to PGIC for inspection at all times.\nC.\nBenefits. During the Term of this Agreement PGIC shall provide Contractor with mobile phone, handheld email and email\nservice similar to that provided to employees of PGIC. Contractor shall be responsible for any COBRA payments he may\nincur for maintaining health insurance.\nD.\nContractor’s Financial Obligations. Contractor shall have full responsibility for the payment of all federal, state and local\ntaxes and contributions, including penalties and interest, imposed pursuant to unemployment insurance, social security,\nincome tax, gross income tax, workmen’s compensation or any other similar statute, and Contractor shall be solely\nresponsible for any liability to third parties resulting from the negligent or intentional acts or omissions of Contractor, its\nrepresentatives, agents, employees or subcontractors arising from or occurring in the course of the Work.\nE.\nPayment Procedure. Contractor shall be paid Compensation every two weeks in accordance with Company’s customary\npaydays.\nF.\nTerm. The term of this Agreement shall be one (1) year (the “Term”). Company may terminate this Agreement at any time\nfor any reason or no reason at all. In the event PGIC terminates this Agreement without cause, Contractor shall be entitled to\nreceive the Compensation for the remaining duration of the original Term. Contractor reserves the right to terminate this\nAgreement at any time upon thirty (30) days written notice to PGIC with no further liability or obligation to either party.\nNotwithstanding anything to the contrary in this Agreement, PGIC shall have the sole and exclusive right and option to\nterminate this Agreement by written notice to Contractor, and thereupon this Agreement shall terminate and become void\nand there shall be no liability on the part of either party (excepting only any provision of this Agreement which provides for\nits survival upon any termination of this Agreement), upon the occurrence of any of the following “for cause” events:\n1)\nContractor’s failure to timely apply for, obtain and/or maintain any and all licenses, permits, approvals and\nauthorizations from any Regulator necessary for Contractor to perform the obligations and duties of this Agreement\nand/or to comply with applicable laws;\n2) A final order in writing by any Regulator requiring the termination of this Agreement;\n3)\nThe reasonable belief of PGIC that the continuation of this Agreement will have a detrimental impact on the ability of\nPGIC or its parent, subsidiaries or affiliates to be qualified or to hold or maintain any license, permit, approval or\nauthorization issued or to be granted by any Regulator;\n4)\nThe commission of any act or anything that is or shall be an offense involving moral turpitude under federal, state or\nlocal laws, or which brings Contractor into public disrepute, contempt, scandal or ridicule, or which insults or offends\nthe community;\n2\n5) Breach of any of the confidentiality or non-disparagement provisions of this Agreement; or\n6) Disapproval of this Agreement by any Regulator having jurisdiction over such matters.\nG.\nRight to Withhold Payments. Regardless of whether PGIC withholds payments, Contractor shall have the obligation to\nconvey to PGIC all Work, including all source code, plans, records, drawings, reports and writings of any kind (if any) for\nthe Work. In addition to its right to withhold payments, PGIC may withhold any payment in whole or part to protect itself\nfrom or in the event of (i) defective Work, (ii) third-party claims arising from Contractor’s performance of the Work,\n(iii) failure of Contractor to make payments properly to any of its subcontractors, (iv) evidence of fraud, over-billing or\noverpayment discovered upon audit, or (v) unsatisfactory or untimely performance of the Work.\n3.\nIndependent Contractor Relationship. Contractor and PGIC understand, acknowledge and agree that Contractor’s relationship\nwith PGIC will be that of an independent contractor and nothing in this Agreement is intended to or should be construed to create a\npartnership, joint venture, or employment relationship. Contractor further represents that Contractor meets the requirements of an\nIndependent Contractor as set forth in Internal Revenue Service Revenue Ruling 87-41 . Further, Contractor shall not have any\nauthority to act, or attempt to act, or represent itself, directly or by implication, as an agent of PGIC or in any manner assume or\ncreate, or attempt to assume or create, any obligation on behalf of or in the name of PGIC, except as provided by PGIC, nor will\neither be deemed the agent, representative or employee of the other.\n4. Trade Secrets — Intellectual Property Rights.\nA.\nDisclosure of Inventions. Contractor agrees to disclose promptly in writing to PGIC, or any person designated by PGIC,\nevery invention, including but not limited to computer programs, processes, know-how and other copyrightable and/or\npatentable material, which is conceived, made or reduced to practice by Contractor within the scope of the Work under this\nAgreement. Contractor represents that Contractor’s performance of all of the terms of this Agreement does not and will not\nbreach any agreement to keep in confidence proprietary information, knowledge or data of any third party and Contractor\nwill not disclose to PGIC, or induce PGIC to use, any confidential or proprietary information belonging to third parties\nunless such use or disclosure is authorized in writing by such owners. Contractor shall retain title to any prior works\nbelonging to Contractor, and to that extent Contractor represents that no property, inventions or copyrighted works\nbelonging to Contractor have been incorporated into the Work. If Contractor has incorporated any property of Contractor’s\ninto the Work, such previously owned property is hereby transferred to PGIC.\nB. Non-Disclosure of Confidential Information.\n1)\nContractor agrees, during the Term and forever thereafter, to keep confidential all information provided by PGIC\n(excepting only such information as is already known to the public, without breach of this Agreement), and including\nany such information and material relating to any customer, vendor, licensor, licensee, or other party transacting\nbusiness with PGIC, and not to release, use or disclose the same except with the prior written permission of PGIC.\nContractor recognizes and acknowledges that the list of PGIC’s customers and clients, as it may exist from time to time,\nand PGIC’s financial information, are valuable, confidential, special, and unique assets and trade secrets of PGIC’s\nbusiness. Contractor will not, during or after the Term, disclose the list of PGIC’s customers and/or clients, or PGIC’s\nfinancial information, or any part thereof, or any other trade secret, to any person, firm, corporation, association or\nother entity for any reason or purpose whatsoever.\n2) Contractor further agrees to consider all specific software, company and personal data,\n3\nregulatory data and information, investigative data and information, artwork and art techniques, programming\ntechniques, project concepts, planned projects, story concepts, game concepts, toys, models, drawings, photographs,\nanimation, cinematography, video, marketing strategies, planned projects, unique hardware, hardware concepts,\nhardware designs, terms of agreements with third parties, methods or techniques for acquiring materials for various\nprojects, data search and retrieval systems, computer processing systems and techniques, systems design, project\ndesign, routine design, algorithms of any sort, programming of any sort, interface design, layout or writing, operating\ninstructions, or any other type of work or intellectual property in any language, on any platform, for any operating\nsystem, in any medium whatsoever, to be confidential information, trade secrets and the exclusive property of PGIC\nwhich will not be converted or disclosed to anyone for any purpose whatsoever. All records, files, memoranda, reports,\nprice lists, customer lists, drawings, plans, sketches, documents, equipment, and the like, relating to the business of\nPGIC, which Contractor shall use or prepare or come into contact with, shall remain the sole property and trade secret\nof PGIC. Any property described or mentioned in this section is jointly or separately referred to as the “Intellectual\nProperty” in this Agreement. Any material, document, data, plan, information, report, memorandum or writing of any\nkind whatsoever, in any media whatsoever, described or mentioned in this section is jointly or separately referred to as\nthe “Confidential Information” in this Agreement. Those items constituting Intellectual Property may also constitute\nConfidential Information, and vice versa.\n3)\nContractor agrees that any information that is in the nature of Confidential Information defined in this section that\neither party receives from any third party and/or which either party is bound, contractually, or by common custom or\nusage in trade to keep in confidence shall also be considered “Confidential Information” by both parties.\n4)\nContractor agrees to use the Intellectual Property and/or Confidential Information solely to perform the project\nhereunder pursuant to the terms of this Agreement. Contractor’s obligations with respect to the Intellectual Property and\nConfidential Information also extend to any third party’s proprietary or confidential information disclosed to Contractor\nin the course of providing services to PGIC.\n5)\nContractor will hold all Confidential Information in trust and confidence. Contractor agrees to take (and to fully\ncooperate with PGIC in undertaking) any reasonable steps necessary to protect the Confidential Information from any\ndisclosure whatsoever. Contractor agrees to require any employee, officer, director, agent or subcontractor who\nperforms work or services pursuant to this Agreement to become bound by the provisions of this Agreement.\nContractor shall provide adequate evidence that such persons are Contractor’s employees.\n6)\nContractor recognizes that the disclosure of Confidential Information or trade secrets by Contractor may give rise to\nirreparable injury to PGIC, which may not be adequately compensated by damages. Accordingly, in the event of a\nbreach or threatened breach by Contractor of any provision of this section, PGIC shall be entitled to an injunction\nrestraining Contractor from disclosing, in whole or in part, the Confidential Information defined in this section, or from\nrendering any services to any person, firm, corporation, association or other entity to whom such Confidential\nInformation, in whole or in part, has been disclosed or is threatened to be disclosed. Nothing herein shall be construed\nas prohibiting PGIC from pursuing any other remedies available to PGIC for such breach or threatened breach,\nincluding the recovery of damages from Contractor.\nThe undertakings set forth in this section shall survive the termination or cancellation of this Agreement.\nC.\nNo Conflict of Interest. Contractor agrees during the Term of this Agreement not to accept work or enter into a contract or accept\nan obligation inconsistent or incompatible with Contractor’s\n4\nobligations or the scope of services rendered for PGIC under this Agreement. Contractor is required to disclose any outside\nactivities or interests, including ownership or participation in the development of prior inventions, that conflict or may conflict with\nthe best interests of PGIC. Prompt disclosure is required under this paragraph if the activity or interest is related, directly or\nindirectly, to: a product or product line of PGIC, a manufacturing process of PGIC, or any activity that Contractor may be involved\nwith on behalf of PGIC. In the interests of full disclosure, the parties acknowledge and understand Contractor will be performing\ncontracting services for Global Gaming Group and TableMax among others, and it is hereby agreed that the provision of such\nservices presents no conflict of interest with PGIC. To the extent that a potential conflict should arise between any of these parties,\nContractor agrees to take all necessary steps to avoid the occurrence of same, including the termination of this or another agreement\nas warranted.\nD. Assignment of Inventions.\n1)\nInventions resulting from the Work (or that of Contractor’s directors, officers, agents, subcontractors or employees) under\nthis Agreement are the exclusive property of PGIC. “Inventions” includes any and all inventions, improvements,\ndiscoveries, and technical developments that Contractor, solely or jointly with others, conceives, makes, or reduces to\npractice within the scope of the Work. Contractor hereby assigns to PGIC Contractor’s entire right, title and interest in the\nInventions worldwide and any associated intellectual property rights, and agrees to execute any and all documentation\nrequested by PGIC to effect such assignment.\n2)\nContractor agrees to assist PGIC in any reasonable manner to obtain and enforce for PGIC’s benefit, patents, copyrights,\nand other property rights covering the Inventions in any and all countries, and Contractor agrees to execute, when requested,\npatent, copyright or similar applications and assignments to PGIC and any other lawful documents deemed necessary by\nPGIC to carry out the purpose of this Agreement. Contractor further agrees that the obligations and undertaking stated in\nthis paragraph will continue beyond the termination of Contractor’s service to PGIC. If called upon to render assistance\nunder this paragraph, other than the execution of documents, Contractor will be entitled to a fair and reasonable fee for\nproviding such assistance.\n3)\nIn the event that PGIC is unable for any reason whatsoever to secure Contractor’s signature to any lawful and necessary\ndocument required to apply for or execute any patent, copyright or other applications with respect to any Inventions\n(including improvements, renewals, assignments, extensions, continuations, divisions, amendments or continuations in part\nthereof), Contractor hereby irrevocably designates and appoints PGIC and its duly authorized officers and agents as\nContractor’s agents and attorneys-in-fact to act for and in Contractor’s behalf and instead of Contractor, to execute and file\nany such application and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights\nor other rights thereon with the same legal force and effect as if executed by Contractor. Contractor is entitled to keep and\nretain Contractor’s own tools, equipment and material provided and owned by Contractor.\nE.\nReturn of PGIC’S Property. Contractor acknowledges that PGIC’s sole and exclusive property includes, among other things, all\ndocuments, such as drawings, manuals, notebooks, reports, sketches, records, computer programs, employee lists, software,\nhardware, videotapes, audiotapes, customer lists and the like in Contractor’s custody, control or possession, whether delivered to\nContractor by PGIC or made by Contractor in the performance of services under this Agreement, relating to the business activities\nof PGIC or its customers or suppliers and containing any information or data whatsoever, whether or not Confidential Information.\nContractor agrees to deliver promptly to PGIC upon termination of this Agreement or at any other time upon PGIC’s request all of\nPGIC’s property and all copies of PGIC’s property in Contractor’s possession,\n5\ncustody or control.\n5.\nWorks Made For Hire. All Work performed by Contractor while performing services for PGIC (during business hours or not) in\nany language, on any platform, for any operating system, in any media or in any form whatsoever (including but not limited to any\nof the Intellectual Property), shall be deemed to have been done upon the commission of and at the instruction of PGIC, shall be a\n“Work Made for Hire” within the meaning of the Copyright Act, shall be the property of PGIC and may not be used by Contractor\nfor any purpose except the benefit of PGIC. Any and all such property shall be forthwith delivered to PGIC upon the PGIC ‘s\nrequest. Contractor agrees that each of Contractor’s own employees, officers, directors, subcontractors and agents are performing\n“Works Made for Hire” for PGIC, and Contractor agrees to cause each of its employees, subcontractors or agents engaged in any\nproject or work for PGIC to sign valid written agreements that such work is being performed as a “Work Made for Hire” for PGIC.\nFurthermore, Contractor agrees to sign and to cause each of its employees, agents and subcontractors engaged in any project or\nwork for PGIC to sign written agreements acknowledging that such work is owned by PGIC and agreeing to execute a “quitclaim\nassignment” for such work to PGIC.\n6.\nContractor’s Cooperation in Establishing Ownership. Contractor shall, from time to time as may be requested by PGIC, do all\nthings that may be necessary to establish or document PGIC ‘s ownership of any work or work product that is properly the Property\nof PGIC, including, but not limited to execution of appropriate copyright applications, copyright assignments, transfers, sales,\nreleases or any and all other documents or writings. Contractor hereby waives any power Contractor may have to control, cause to\nmodify or otherwise effect the Intellectual Property, and hereby transfers all such powers, including but not limited to any powers\nof Droit Morale, to PGIC. Contractor hereby irrevocably appoints PGIC as Contractor’s attorney in fact empowered solely to\nexecute any documents necessary to establish PGIC’s ownership rights, rights to maintain, rights to defend and rights to control any\nof the Intellectual Property and/or Confidential Property.\n7.\nAdditional Compensation. Other than Contractor’s stated compensation, neither Contractor nor its employees, subcontractors,\nofficers, directors or agents is entitled to receive any additional compensation from PGIC (including but not limited to royalties or\nfees) as a result of any work performed, concepts developed, ideas submitted, or other efforts made while a Contractor of PGIC\nexcept to the extent such further compensation is set forth in a formal written agreement. Other than as provided by any formal\nwritten agreement Contractor acknowledges that Contractor has no propriety or ownership interest in PGIC, or any related entities,\nand will not receive any such interest. Unless stated in a separate written agreement, Contractor is not entitled to any equity interest\nin PGIC. Neither Contractor nor any of Contractor’s officers, agents, directors or employees is entitled to any employment benefits\nfrom PGIC, including but not limited to insurance, pensions, paid holidays, vacations, sick leave, paid time off or profit sharing\nexcept as set forth in written agreement.\n8.\nNon-Disparagement. Neither party shall make any remarks or issue any communication, written or otherwise, that disparages or\nderogates, or encourages any adverse action against the other party or any of its affiliates, officers, directors, employees or agents,\nprovided that this paragraph shall not preclude Contractor from testifying truthfully under oath, pursuant to subpoena or otherwise,\nas to his first-hand knowledge, or from providing his first-hand knowledge to any governmental, regulatory or self-regulatory body\nor agency with jurisdiction over PGIC’s activities.\n9.\nNoninterference with Business. During the Term of this Agreement and for a period of two (2) years immediately following\ntermination of this Agreement, Contractor agrees not to solicit or induce any employee or independent contractor, or other\nperson(s) to terminate or breach, or cause to terminate or breach any employment relationship, contractual relationship or other\nrelationship with PGIC.\n6\n10.Contractor’s Representations, Warranties And Indemnification.\nA.\nContractor’s Warranties. In addition to other representations and warranties provided for herein, Contractor represents\nand warrants to PGIC that:\n1) Contractor is the sole and exclusive supplier of the Work performed by Contractor;\n2)\nWith respect to the Work, and any materials pertaining thereto that Contractor discloses, uses, assigns and/or delivers in\nthe performance of its obligations hereunder, Contractor has the right to make such disclosure, use, and/or delivery\nthereof without liability to any third party;\n3)\nThe performance of the terms of this Agreement and of Contractor’s obligation hereunder will not breach any separate\nagreement by which Contractor is bound;\n4)\nContractor has not previously granted any rights in and to the Work to any third party that are inconsistent with any of\nPGIC’s licenses and/or rights hereunder;\n5) Contractor has full power and authority to enter into this Agreement and to fulfill its obligations hereunder;\n6) Contractor is legally competent to sign this Agreement;\n7)\nContractor warrants and represents to PGIC that all acts, duties and obligations required of it under this Agreement\nshall be performed in good faith; and\n8)\nContractor agrees to fully cooperate with any legitimate investigation of Company and to produce any materials or\ndocuments requested by regulatory authorities.\n9)\nContractor hereby agrees to employ only persons who are previously approved by PGIC in writing and who are legally\nauthorized to work in the jurisdictions where Work is to be performed and to have appropriate employment\nauthorization forms, if required, for each person employed by it.\nB.\nContractor’s Indemnification. Contractor agrees to indemnify and hold harmless PGIC and its customers, affiliates and/or\nsub-licensees and end-users from and against any and all claims, losses, liabilities, damages, expenses and costs (including\nattorneys and defense costs) and judgments that may be asserted against PGIC that result from the acts or omissions of\nContractor, Contractor’s employees, if any, and Contractor’s agents, and/or which result from a breach of any of the\nwarranties expressly set forth in this Agreement, or incurred in the settlement or avoidance of any such matter. As a\ncondition to indemnification, PGIC will promptly inform Contractor in writing of the assertion of any such claim, demand\nor suit, and the parties will cooperate with and assist one another with respect to the defense and/or settlement of such\nmatter (in a manner consistent with the parties’ respective confidentiality obligations and desired preservation of\nattorney/client, work product and other privileges). Contractor hereby confirms that Contractor will not agree to the\nsettlement of any such claim, demand or suit prior to judgment thereon by any court of competent jurisdiction unless\nPGIC’s written consent is first obtained, which consent will not be unreasonably withheld or delayed.\n11.PGIC’S Warranties, Representation and Indemnification:\nA. PGIC’S Warranties: PGIC represents and warrants to Contractor that:\n1) PGIC possesses full power and authority to enter into this Agreement and to fulfill its obligations hereunder;\n2)\nThe performance of the terms of this Agreement and of PGIC’s obligations hereunder will not breach any separate\nagreement by which PGIC is bound;\n3)\nPGIC warrants and represents to Contractor that all acts, duties and obligations required of it under this Agreement\nshall be performed in good faith.\nB. PGIC’S Indemnity: PGIC agrees to indemnify and hold harmless Contractor from and against\n7\nany and all claims, losses, liabilities, damages, expenses and costs (including attorneys fees and defense costs) which result\nfrom a breach of any of the warranties expressly set forth in this Agreement, or incurred in the settlement or avoidance of\nany such matter, or which are incurred in the course of PGIC’s activities in connection with this Agreement unless such\nmatters are the fault of Contractor. As a condition to indemnification, Contractor will promptly inform PGIC in writing of\nthe assertion of any such claim, demand or suit, and the parties will cooperate with and assist one another with respect to the\ndefense and/or settlement of such matter (consistent with the parties’ respective confidentiality obligations and preservation\nof attorney/client, work product and other privileges). PGIC hereby confirms that it will not agree to the settlement of any\nsuch claim, demand or suit prior to judgment thereon by any court of competent jurisdiction unless Contractor’s consent is\nfirst obtained, which consent will not be unreasonably withheld or delayed.\n12.General Provisions:\nA.\nGoverning Law: This Agreement will be governed by and construed in accordance with the laws of the United States and\nthe State of Nevada applied to agreements entered into and to be performed entirely within Nevada between Nevada\nresidents. Contractor and PGIC further agree that for purposes of venue and jurisdiction, that any disputes, issues,\nenforcement and/or all other matters concerning the Agreement will be determined in Clark County, State of Nevada,\nUnited States of America. The parties expressly waive any other jurisdiction to which they might be entitled as a result of\ntheir present or future domicile or for any other reason.\nB.\nCompliance with Laws: In the performance of the Work, Contractor shall comply with all applicable laws, rules and\nregulations, including but not limited to all requirements and provisions of the laws and regulations of the United States, the\nStates and subdivisions thereof in which PGIC or any of PGIC’s subsidiaries or affiliates (regardless of when or how\nformed) carry on their business and all general rules, regulations and ethical standards of national, State and local agencies\nand regulatory and advisory groups having jurisdiction over any business of PGIC or any of PGIC’s subsidiaries or affiliates\n(regardless of when or how formed) as they exist now and as same may be amended from time to time.\nC.\nRegulatory Matters: PGIC, its parent corporation and certain related entities are licensed by or otherwise subject to the\nauthority of various casino and gaming regulatory agencies (“Regulator”). PGIC has adopted a regulatory compliance\npolicy, and Contractor agrees to provide PGIC with such documentation, information and assurances regarding itself, any\nprincipal employees, brokers, agents or others where applicable as may be necessary in order for PGIC to comply with\nPGIC’s regulatory compliance policy and with the request of any Regulator. The foregoing shall be a material obligation of\nContractor hereunder.\nD.\nInjuries: Contractor acknowledges Contractor’s obligation to obtain appropriate insurance coverage for the benefit of\nContractor (and Contractor’s employees, if any). Contractor waives any rights to recovery from PGIC for any injuries that\nContractor (and/or Contractor’s employees) may sustain while performing services under this Agreement and that are a\nresult of the negligence of Contractor or Contractor’s employees.\nE.\nEntire Agreement / Modification: This Agreement, including all Exhibits to this Agreement, constitute the entire\nagreement between the parties relating to this subject matter and supersedes all prior or simultaneous representations,\ndiscussions, negotiations, and agreements, whether written or oral. Any and all amendments, changes, revisions, and/or\nmodifications to this Agreement must be in writing signed by Contractor and PGIC.\n8\nF.\nWaiver: No term or provision hereof will be considered waived by either party, and no breach excused by either party,\nunless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by\neither party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or\nexcuse of any other, different, or subsequent breach by either party.\nG.\nSuccessors and Assigns: Contractor may not assign its rights or obligations arising under this Agreement without PGIC’s\nprior written consent. PGIC may assign its rights and obligations under this Agreement. This Agreement will be for the\nbenefit of PGIC’s successors and assigns, and will be binding on Contractor’s heirs, legal representatives and permitted\nassignees.\nH.\nLegal Fees: If any dispute arises between the parties with respect to the matters covered by this Agreement which leads to a\nproceeding to resolve such dispute, the prevailing party in such proceeding shall be entitled to receive its reasonable\nattorneys’ fees, expert witness fees and out-of-pocket costs incurred in connection with such proceeding, in addition to any\nother relief to which it may be entitled, including but not limited to equitable relief such as restraining orders and\ninjunctions.\nI.\nNotices: All notices, requests and other communications required to be given under this Agreement must be in writing, and\nmust be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the\nparty to whom such notice is required or permitted to be given. Any such notice will be considered to have been given when\nreceived, or if mailed, five (5) business days after it was mailed, as evidenced by the postmark. The mailing address for\nnotice to either party will be the address shown on the face page of this Agreement. Either party may change its mailing\naddress by notice as provided by this Section.\nJ.\nSeverability: Should any term, condition, or provision herein be determined to be unenforceable, such determination shall\nnot impair, limit, or otherwise affect the enforceability of the remaining terms of this Agreement.\nK.\nWaiver. Failure of either party to insist on strict performance shall not constitute a waiver of any of the provisions of this\nAgreement or a waiver of any default of the other party.\nL.\nSurvival: The following provisions shall survive termination of this Agreement: Section IV, Section 5, Section 6, and\nSection 9.\nMIKOHN GAMING\nCORPORATION, a\nNevada corporation, doing business\nas\nMichael F. Dreitzer, an individual\nPROGRESSIVE GAMING\nINTERNATIONAL\nCORPORATION\nBy: /s/ Michael A. Sicuro\nBy: /s/ Michael F. Dreitzer\nName:Michael A. Sicuro\nName:\nMichael F. Dreitzer\nTitle:Executive Vice President & CFO\nDate:\nDate:\n9	Exhibit 10.19\nCONSULTING AND CONFIDENTIALITY AGREEMENT\nThis Consulting and Confidentiality Agreement (this ”A greement”) is entered into as of September 19, 2005 and has an effective date\nof September 19, 2005, and is by and between by and between MIKOHN GAMING CORPORATION, a Nevada corporation and\nits subsidiaries and affiliates doing business as PROGRESSIVE GAMING INTERNATIONAL CORPORATION (”PGIC") with\nits principal place of business located at 920 Pilot Road, Las Vegas, Nevada 89119, and Michael F. Dreitzer, an individual\n(”Contractor”).\nWHE REA S, PGIC desires to engage a contractor for the performance of certain services; and\nWHE REA S, Contractor desires to perform such services for PGIC.\nNOW THEREFORE, for valuable consideration, the receipt of which is hereby acknowledged, the parties hereby agree as follows:\n1. Engagement of Services.\nPGIC hereby engages Contractor to perform the services described in this Agreement, and Contractor agrees to perform\nservices for PGIC as follows: Provide PGIC with consulting services for up to 40 hours per month during the Term (as\nA. defined below) with regard to PGIC' s regulatory matters, and with any additional assignments and tasks as shall be assigned\nto Contractor by PGIC (the ”W ork," which shall also include any services, material, output, work, or work product arising\nout of this Agreement or produced in connection with this Agreement).\nTime is of the essence. The Work shall be performed in a good, workman-like manner in accordance with the standards of\nContractor” s profession and such other accepted standards as may be applicable to Work of this kind. Contractor shall\nB.\ndevote the necessary time and attention to the Work as is reasonably required to diligently, timely, efficiently, and\nprofessionally complete the Work no later than the time necessary or required by deadlines.\nC All Work must meet with PGIC’s approval, which is to be determined in PGIC’s sole discretion, which discretion shall not\nto be unreasonably withheld.\nPGIC specifically selected Contractor to perform the Work based upon PGIC receiving Contractor” s personal service and\nD. therefore Contractor may not subcontract or otherwise delegate its obligations under this Agreement without PGIC’s prior\nwritten consent and any attempted assignment contrary to this provision shall be void.\nContractor acknowledges that PGIC does business in a highly regulated gaming industry and that certain suitability\nrequirements for Contractor must be strictly met in order to perform its Services for PGIC. A ccordingly, Contractor shall\nsubmit to all PGIC requested screening, including but not limited to any or all of the following; alcohol & substance abuse\nscreening, fingerprinting, personal history (including criminal background) and/or personal financial disclosures\n(collectively, ”Prerequisite Screening”). The Prerequisite Screening is a condition precedent to this Agreement and/or\nperforming any Work under this Agreement. Contractor further agrees to execute any and all releases for PGIC to complete\nthe Prerequisite Screening. Should Contractor not successfully complete and/or pass the Prerequisite Screening or any later\nscreenings, this Agreement shall be immediately terminated without any liability to PGIC or Contractor\n2. Compensation and Term.\nFees. PGIC will pay Contractor for complete and full performance for all Work specified in this Agreement and for all\nrelated tasks the amount of Six Thousand Five Hundred and 00/100 US. Dollars ($6,500.00) per month (”Compensation”).\nA. .\nThe Compensation is inclusive of any federal, state, municipal and other governmental taxes, franchise, sales, use, or other\ntaxes (included but not limited to value added taxes) now or hereafter imposed on the Contractor by any tax authority.\nExpenses. Contractor will be reimbursed pursuant to PG lC’s standard policy as may be modified from time to time at\nB PGlC’s sole discretion for any reasonable expenses incurred in connection with the performance of the Work. All expenses\nmust be pre approved by PGIC, and Contractor shall keep full and accurate records and documentation to substantiate the\namounts claimed in any invoice, which records shall be made available to PGIC for inspection at all times.\nBenefits. During the Term of this Agreement PGIC shall provide Contractor with mobile phone, handheld email and email\nC. service similar to that provided to employees of PG lC. Contractor shall be responsible for any COBRA payments he may\nincur for maintaining health insurance.\nC ontractor’s Financial 0 bligations. Contractor shall have full responsibility for the payment of all federal, state and local\ntaxes and contributions, including penalties and interest, imposed pursuant to unemployment insurance, social security,\nD. income tax, gross income tax, workmen' s compensation or any other similar statute, and Contractor shall be solely\nresponsible for any liability to third parties resulting from the negligent or intentional acts or omissions of Contractor, its\nrepresentatives, agents, employees or subcontractors arising from or occurring in the course of the Work.\nPayment Procedure. Contractor shall be paid Compensation every two weeks in accordance with Company' s customary\nE.\npaydays.\nTerm. The term of this Agreement shall be one (1) year (the ”Term"). Company may terminate this Agreement at any time\nfor any reason or no reason at all. In the event PGIC terminates this Agreement without cause, Contractor shall be entitled to\nreceive the Compensation for the remaining duration of the original Term. Contractor reserves the right to terminate this\nF Agreement at any time upon thirty (30) days written notice to PGIC with no further liability or obligation to either party.\nNotwithstanding anything to the contrary in this Agreement, PGIC shall have the sole and exclusive right and option to\nterminate this A greement by written notice to Contractor, and thereupon this A greement shall terminate and become void\nand there shall be no liability on the part of either party (excepting only any provision of this Agreement which provides for\nits survival upon any termination of this Agreement), upon the occurrence of any of the following ”for cause” events:\nContractor” s failure to timely apply for, obtain and/or maintain any and all licenses, permits, approvals and\n1) authorizations from any Regulator necessary for Contractor to perform the obligations and duties of this Agreement\nand/or to comply with applicable laws;\n2) A final order in writing by any Regulator requiring the termination of this Agreement;\nThe reasonable belief of PG lC that the continuation of this Agreement will have a detrimental impact on the ability of\n3) PGIC or its parent, subsidiaries or affiliates to be qualified or to hold or maintain any license, permit, approval or\nauthorization issued or to be granted by any Regulator;\nThe commission of any act or anything that is or shall be an offense involving moral turpitude under federal, state or\n4) local laws, or which brings Contractor into public disrepute, contempt, scandal or ridicule, or which insults or offends\nthe community;\n5) Breach of any of the confidentiality or non-disparagement provisions of this Agreement; or\n6) Disapproval of this Agreement by any Regulator having jurisdiction over such matters.\nRight to Withheld Payments. Regardless of whether PGIC withholds payments, Contractor shall have the obligation to\nconvey to PGIC all Work, including all source code, plans, records, drawings, reports and writings of any kind (if any) for\nthe Work. In addition to its right to withhold payments, PGIC may withhold any payment in whole or part to protect itself\nfrom or in the event of (i) defective Work, (ii) third-party claims arising from Contractors performance of the Work,\n(iii) failure of Contractor to make payments properly to any of its subcontractors, (iv) evidence of fraud, over-billing or\noverpayment discovered upon audit, or (v) unsatisfactory or untimely performance of the Work.\nIndependent C ontractor Relationship. Contractor and PG IC understand, acknowledge and agree that Contractor” s relationship\nwith PGIC will be that of an independent contractor and nothing in this A greement is intended to or should be construed to create a\npartnership, joint venture, or employment relationship. Contractor further represents that Contractor meets the requirements of an\n3. Independent Contractor as set forth in Internal Revenue Service Revenue Ruling 87-41. Further, Contractor shall not have any\nauthority to act, or attempt to act, or represent itself, directly or by implication, as an agent of PGIC or in any manner assume or\ncreate, or attempt to assume or create, any obligation on behalf of or in the name of PGIC, except as provided by PG IC, nor will\neither be deemed the agent, representative or employee of the other.\n4. Trade Secrets — Intellectual Property Rights.\nDisclosure of Inventions. Contractor agrees to disclose promptly in writing to PGIC, or any person designated by PGIC,\nevery invention, including but not limited to computer programs, processes, know-how and other copyrightable and/or\npatentable material, which is conceived, made or reduced to practice by Contractor within the scope of the Work under this\nAgreement. Contractor represents that Contractor” s performance of all of the terms of this Agreement does not and will not\nbreach any agreement to keep in confidence proprietary information, knowledge or data of any third party and Contractor\nwill not disclose to PG IC, or induce PGIC to use, any confidential or proprietary information belonging to third parties\nunless such use or disclosure is authorized in writing by such owners. Contractor shall retain title to any prior works\nbelonging to Contractor, and to that extent Contractor represents that no property, inventions or copyrighted works\nbelonging to Contractor have been incorporated into the Work. If Contractor has incorporated any property of Contractor” s\ninto the Work, such previously owned property is hereby transferred to PGIC.\nB. Non-Disclosure of C onfidential Information.\nContractor agrees, during the Term and forever thereafter, to keep confidential all information provided by PGIC\n(excepting only such information as is already known to the public, without breach of this Agreement), and including\nany such information and material relating to any customer, vendor, licensor, licensee, or other party transacting\nbusiness with PGIC, and not to release, use or disclose the same except with the prior written permission of PGIC.\n1) Contractor recognizes and acknowledges that the list of PGIC’s customers and clients, as it may exist from time to time,\nand PGIC’s financial information, are valuable, confidential, special, and unique assets and trade secrets of PGIC’s\nbusiness. Contractor will not, during or after the Term, disclose the list of PGIC’s customers and/or clients, or PGIC' s\nfinancial information, or any part thereof, or any other trade secret, to any person, firm, corporation, association or\nother entity for any reason or purpose whatsoever.\n2) Contractor further agrees to consider all specific software, company and personal data,\nregulatory data and information, investigative data and information, artwork and art techniques, programming\ntechniques, project concepts, planned projects, story concepts, game concepts, toys, models, drawings, photographs,\nanimation, cinematography, video, marketing strategies, planned projects, unique hardware, hardware concepts,\nhardware designs, terms of agreements with third parties, methods or techniques for acquiring materials for various\nprojects, data search and retrieval systems, computer processing systems and techniques, systems design, project\ndesign, routine design, algorithms of any sort, programming of any sort, interface design, layout or writing, operating\ninstructions, or any other type of work or intellectual property in any language, on any platform, for any operating\nsystem, in any medium whatsoever, to be confidential information, trade secrets and the exclusive property of PGIC\nwhich will not be converted or disclosed to anyone for any purpose whatsoever. All records, files, memoranda, reports,\nprice lists, customer lists, drawings, plans, sketches, documents, equipment, and the like, relating to the business of\nPGIC, which Contractor shall use or prepare or come into contact with, shall remain the sole property and trade secret\nof PGIC. Any property described or mentioned in this section is jointly or separately referred to as the ”Intellectual\nProperty" in this Agreement. Any material, document, data, plan, information, report, memorandum or writing of any\nkind whatsoever, in any media whatsoever, described or mentioned in this section is jointly or separately referred to as\nthe ”Confidential Information” in this Agreement. Those items constituting Intellectual Property may also constitute\nConfidential Information, and vice versa.\nContractor agrees that any information that is in the nature of Confidential Information defined in this section that\n3) either party receives from any third party and/or which either party is bound, contractually, or by common custom or\nusage in trade to keep in confidence shall also be considered ”Confidential Information” by both parties.\nContractor agrees to use the Intellectual Property and/or Confidential Information solely to perform the project\nhereunder pursuant to the terms of this Agreement. Contractor” s obligations with respect to the Intellectual Property and\nConfidential Information also extend to any third party’ s proprietary or confidential information disclosed to Contractor\nin the course of providing services to PGIC.\nContractor will hold all Confidential Information in trust and confidence. Contractor agrees to take (and to fully\ncooperate with PGIC in undertaking) any reasonable steps necessary to protect the Confidential Information from any\n5) disclosure whatsoever. Contractor agrees to require any employee, officer, director, agent or subcontractor who\nperforms work or services pursuant to this Agreement to become bound by the provisions of this Agreement.\nContractor shall provide adequate evidence that such persons are Contractor s employees.\nContractor recognizes that the disclosure of Confidential Information or trade secrets by Contractor may give rise to\nirreparable injury to PGIC, which may not be adequately compensated by damages. Accordingly, in the event of a\nbreach or threatened breach by Contractor of any provision of this section, PGIC shall be entitled to an injunction\nrestraining Contractor from disclosing, in whole or in part, the Confidential Information defined in this section, or from\nrendering any services to any person, firm, corporation, association or other entity to whom such Confidential\nInformation, in whole or in part, has been disclosed or is threatened to be disclosed. Nothing herein shall be construed\nas prohibiting PGIC from pursuing any other remedies available to PGIC for such breach or threatened breach,\nincluding the recovery of damages from Contractor.\nThe undertakings set forth in this section shall survive the termination or cancellation of this A greement.\nNo C onflict of Interest. Contractor agrees during the Term of this A greement not to accept work or enter into a contract or accept\n’ an obligation inconsistent or incompatible with Contractor” s\nobligations or the scope of services rendered for PGIC under this Agreement. Contractor is required to disclose any outside\nactivities or interests, including ownership or participation in the development of prior inventions, that conflict or may conflict with\nthe best interests of PGIC. Prompt disclosure is required under this paragraph if the activity or interest is related, directly or\nindirectly, to: a product or product line of PGIC, a manufacturing process of PGIC, or any activity that Contractor may be involved\nwith on behalf of PGIC. In the interests of full disclosure, the parties acknowledge and understand Contractor will be performing\ncontracting services for Global Gaming Group and TableMax among others, and it is hereby agreed that the provision of such\nservices presents no conflict of interest with PGIC. To the extent that a potential conflict should arise between any of these parties,\nContractor agrees to take all necessary steps to avoid the occurrence of same, including the termination of this or another agreement\nas warranted.\nD Assignment of Inventions.\nInventions resulting from the Work (or that of Contractor” s directors, officers, agents, subcontractors or employees) under\nthis A greement are the exclusive property of PGIC. ”Inventions" includes any and all inventions, improvements,\ndiscoveries, and technical developments that Contractor, solely or jointly with others, conceives, makes, or reduces to\npractice within the scope of the Work. Contractor hereby assigns to PGIC Contractor s entire right, title and interest in the\nInventions worldwide and any associated intellectual property rights, and agrees to execute any and all documentation\nrequested by PGIC to effect such assignment.\nContractor agrees to assist PGIC in any reasonable manner to obtain and enforce for PGIC’s benefit, patents, copyrights,\nand other property rights covering the Inventions in any and all countries, and Contractor agrees to execute, when requested,\npatent, copyright or similar applications and assignments to PG IC and any other lawful documents deemed necessary by\n2) PGIC to carry out the purpose of this Agreement. Contractor further agrees that the obligations and undertaking stated in\nthis paragraph will continue beyond the termination of Contractor” s service to PGIC. If called upon to render assistance\nunder this paragraph, other than the execution of documents, Contractor will be entitled to a fair and reasonable fee for\nproviding such assistance.\nIn the event that PGIC is unable for any reason whatsoever to secure Contractor” s signature to any lawful and necessary\ndocument required to apply for or execute any patent, copyright or other applications with respect to any Inventions\n(including improvements, renewals, assignments, extensions, continuations, divisions, amendments or continuations in part\nthereof), Contractor hereby irrevocably designates and appoints PGIC and its duly authorized officers and agents as\nContractor” s agents and attomeys-in-fact to act for and in Contractor” s behalf and instead of Contractor, to execute and file\nany such application and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights\nor other rights thereon with the same legal force and effect as if executed by Contractor. Contractor is entitled to keep and\nretain Contractor” s own tools, equipment and material provided and owned by Contractor.\nReturn of PG IC ’8 Property. Contractor acknowledges that PGIC' s sole and exclusive property includes, among other things, all\ndocuments, such as drawings, manuals, notebooks, reports, sketches, records, computer programs, employee lists, software,\nhardware, videotapes, audiotapes, customer lists and the like in Contractor” s custody, control or possession, whether delivered to\nE. Contractor by PG IC or made by Contractor in the performance of services under this Agreement, relating to the business activities\nof PGIC or its customers or suppliers and containing any information or data whatsoever, whether or not Confidential Information.\nContractor agrees to deliver promptly to PGIC upon termination of this A greement or at any other time upon PGIC' s request all of\nPGIC’s property and all copies of PG IC’s property in Contractors possession,\nU1\n9‘\n\‘l\n00\ncustody or control.\nWorks Made For Hire. All Work performed by Contractor while performing services for PGIC (during business hours or not) in\nany language, on any platform, for any operating system, in any media or in any form whatsoever (including but not limited to any\nof the Intellectual Property), shall be deemed to have been done upon the commission of and at the instruction of PGIC, shall be a\n”W ork Made for Hire" within the meaning of the Copyright Act, shall be the property of PGIC and may not be used by Contractor\nfor any purpose except the benefit of PG IC. Any and all such property shall be forthwith delivered to PGIC upon the PG IC ’s\n. request. Contractor agrees that each of Contractor” s own employees, officers, directors, subcontractors and agents are performing ”W orks Made for Hire" for PGIC, and Contractor agrees to cause each of its employees, subcontractors or agents engaged in any\nproject or work for PGIC to sign valid written agreements that such work is being performed as a ”W ork Made for Hire" for PG IC.\nFurthermore, Contractor agrees to sign and to cause each of its employees, agents and subcontractors engaged in any project or\nwork for PGIC to sign written agreements acknowledging that such work is owned by PGIC and agreeing to execute a ”quitclaim\nassignment" for such work to PGIC.\nContractor’s Cooperation in Establishing Ownership. Contractor shall, from time to time as may be requested by PGIC, do all\nthings that may be necessary to establish or document PGIC ’s ownership of any work or work product that is properly the Property\nof PGIC, including, but not limited to execution of appropriate copyright applications, copyright assignments, transfers, sales,\nreleases or any and all other documents or writings. Contractor hereby waives any power Contractor may have to control, cause to\nmodify or otherwise effect the Intellectual Property, and hereby transfers all such powers, including but not limited to any powers\nof Droit Morale, to PGIC. Contractor hereby irrevocably appoints PGIC as Contractor” s attorney in fact empowered solely to\nexecute any documents necessary to establish PG IC’s ownership rights, rights to maintain, rights to defend and rights to control any\nof the Intellectual Property and/or Confidential Property.\nAdditional C ompensation. Other than Contractor” s stated compensation, neither Contractor nor its employees, subcontractors,\nofficers, directors or agents is entitled to receive any additional compensation from PGIC (including but not limited to royalties or\nfees) as a result of any work performed, concepts developed, ideas submitted, or other efforts made while a Contractor of PGIC\nexcept to the extent such further compensation is set forth in a formal written agreement. Other than as provided by any formal\n. written agreement Contractor acknowledges that Contractor has no propriety or ownership interest in PGIC, or any related entities, and will not receive any such interest. Unless stated in a separate written agreement, Contractor is not entitled to any equity interest\nin PGIC. Neither Contractor nor any of Contractor” s officers, agents, directors or employees is entitled to any employment benefits\nfrom PGIC, including but not limited to insurance, pensions, paid holidays, vacations, sick leave, paid time off or profit sharing\nexcept as set forth in written agreement.\nNon-Disparagement. Neither party shall make any remarks or issue any communication, written or otherwise, that disparages or\nderogates, or encourages any adverse action against the other party or any of its affiliates, officers, directors, employees or agents,\n. provided that this paragraph shall not preclude Contractor from testifying truthfully under oath, pursuant to subpoena or otherwise, as to his first-hand knowledge, or from providing his first-hand knowledge to any governmental, regulatory or self-regulatory body\nor agency with jurisdiction over PGIC’s activities.\nNoninterference with Business. During the Term of this A greement and for a period of two (2) years immediately following\ntermination of this Agreement, Contractor agrees not to solicit or induce any employee or independent contractor, or other\nperson(s) to terminate or breach, or cause to terminate or breach any employment relationship, contractual relationship or other\nrelationship with PG IC.\n10C ontractor’s Representations, Warranties And Indemnification. A. C ontractor’s Warranties. In addition to other representations and warranties provided for herein, Contractor represents\nand warrants to PGIC that:\n1) Contractor is the sole and exclusive supplier of the Work performed by Contractor;\nWith respect to the Work, and any materials pertaining thereto that Contractor discloses, uses, assigns and/or delivers in\n2) the performance of its obligations hereunder, Contractor has the right to make such disclosure, use, and/or delivery\nthereof without liability to any third party;\nThe performance of the terms of this A greement and of Contractor” s obligation hereunder will not breach any separate\nagreement by which Contractor is bound;\nContractor has not previously granted any rights in and to the Work to any third party that are inconsistent with any of\nPGIC’s licenses and/or rights hereunder;\n5) Contractor has full power and authority to enter into this Agreement and to fulfill its obligations hereunder;\n6) Contractor is legally competent to sign this Agreement;\nContractor warrants and represents to PG lC that all acts, duties and obligations required of it under this Agreement\nshall be performed in good faith; and\nContractor agrees to fully cooperate with any legitimate investigation of Company and to produce any materials or\ndocuments requested by regulatory authorities.\nContractor hereby agrees to employ only persons who are previously approved by PGIC in writing and who are legally\n9) authorized to work in the jurisdictions where Work is to be performed and to have appropriate employment\nauthorization forms, if required, for each person employed by it.\nContractor’s Indemnification. Contractor agrees to indemnify and hold harmless PGIC and its customers, affiliates and/or\nsub-licensees and end-users from and against any and all claims, losses, liabilities, damages, expenses and costs (including\nattorneys and defense costs) and judgments that may be asserted against PGIC that result from the acts or omissions of\nContractor, Contractor” s employees, if any, and Contractor” s agents, and/or which result from a breach of any of the\nwarranties expressly set forth in this Agreement, or incurred in the settlement or avoidance of any such matter. As a\ncondition to indemnification, PGIC will promptly inform Contractor in writing of the assertion of any such claim, demand\nor suit, and the parties will cooperate with and assist one another with respect to the defense and/or settlement of such\nmatter (in a manner consistent with the parties' respective confidentiality obligations and desired preservation of\nattorney/client, work product and other privileges). Contractor hereby confirms that Contractor will not agree to the\nsettlement of any such claim, demand or suit prior to judgment thereon by any court of competent jurisdiction unless\nPGIC’s written consent is first obtained, which consent will not be unreasonably withheld or delayed.\n11PG IC ’ S W arranties, Representation and Indemnification: A. B. PG IC ’8 Warranties: PGIC represents and warrants to Contractor that:\n1) PGIC possesses full power and authority to enter into this Agreement and to fulfill its obligations hereunder;\nThe performance of the terms of this A greement and of PGIC’s obligations hereunder will not breach any separate\n2\n) agreement by which PGIC is bound;\nPGIC warrants and represents to Contractor that all acts, duties and obligations required of it under this Agreement\n3\n) shall be performed in good faith.\nPG IC ’8 Indemnity: PGIC agrees to indemnify and hold harmless Contractor from and against\nany and all claims, losses, liabilities, damages, expenses and costs (including attorneys fees and defense costs) which result\nfrom a breach of any of the warranties expressly set forth in this Agreement, or incurred in the settlement or avoidance of\nany such matter, or which are incurred in the course of PGIC’s activities in connection with this Agreement unless such\nmatters are the fault of Contractor. As a condition to indemnification, Contractor will promptly inform PGIC in writing of\nthe assertion of any such claim, demand or suit, and the parties will cooperate with and assist one another with respect to the\ndefense and/or settlement of such matter (consistent with the parties' respective confidentiality obligations and preservation\nof attomey/client, work product and other privileges). PGIC hereby confirms that it will not agree to the settlement of any\nsuch claim, demand or suit prior to judgment thereon by any court of competent jurisdiction unless Contractor’ s consent is\nfirst obtained, which consent will not be unreasonably withheld or delayed.\n12 G eneral Provisions:\nG overning Law: This Agreement will be governed by and construed in accordance with the laws of the United States and\nthe State of Nevada applied to agreements entered into and to be performed entirely within Nevada between Nevada\nresidents. Contractor and PGIC further agree that for purposes of venue and jurisdiction, that any disputes, issues,\nenforcement and/or all other matters concerning the A greement will be determined in Clark County, State of Nevada,\nUnited States of America. The parties expressly waive any other jurisdiction to which they might be entitled as a result of\ntheir present or future domicile or for any other reason.\nCompliance with Laws: In the performance of the Work, Contractor shall comply with all applicable laws, rules and\nregulations, including but not limited to all requirements and provisions of the laws and regulations of the United States, the\nStates and subdivisions thereof in which PGIC or any of PGIC’s subsidiaries or affiliates (regardless of when or how\nformed) carry on their business and all general rules, regulations and ethical standards of national, State and local agencies\nand regulatory and advisory groups having jurisdiction over any business of PG 1C or any of PGIC’s subsidiaries or affiliates\n(regardless of when or how formed) as they exist now and as same may be amended from time to time.\nRegulatory Matters: PGIC, its parent corporation and certain related entities are licensed by or otherwise subject to the\nauthority of various casino and gaming regulatory agencies (”Regulator”). PG IC has adopted a regulatory compliance\npolicy, and Contractor agrees to provide PGIC with such documentation, information and assurances regarding itself, any\nprincipal employees, brokers, agents or others where applicable as may be necessary in order for PGIC to comply with\nPGIC’s regulatory compliance policy and with the request of any Regulator. The foregoing shall be a material obligation of\nC ontractor hereunder.\nInjuries: Contractor acknowledges Contractor” s obligation to obtain appropriate insurance coverage for the benefit of\nContractor (and Contractor” s employees, if any). Contractor waives any rights to recovery from PGIC for any injuries that\nContractor (and/or Contractor’ s employees) may sustain while performing services under this A greement and that are a\nresult of the negligence of Contractor or Contractor” s employees.\nEntire Agreement / Modification: This A greement, including all Exhibits to this A greement, constitute the entire\nagreement between the parties relating to this subject matter and supersedes all prior or simultaneous representations,\ndiscussions, negotiations, and agreements, whether written or oral. Any and all amendments, changes, revisions, and/or\nmodifications to this Agreement must be in writing signed by Contractor and PGIC.\nWaiver: No term or provision hereof will be considered waived by either party, and no breach excused by either party,\nunless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by\neither party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or\nexcuse of any other, different, or subsequent breach by either party.\nSuccessors and Assigns: Contractor may not assign its rights or obligations arising under this Agreement without PGIC’s prior written consent. PGIC may assign its rights and obligations under this Agreement. This Agreement will be for the benefit of PGIC’s successors and assigns, and will be binding on Contractor” s heirs, legal representatives and permitted assignees.\nLegal Fees: If any dispute arises between the parties with respect to the matters covered by this Agreement which leads to a proceeding to resolve such dispute, the prevailing party in such proceeding shall be entitled to receive its reasonable H. attorneys’ fees, expert witness fees and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief to which it may be entitled, including but not limited to equitable relief such as restraining orders and injunctions.\nNotices: All notices, requests and other communications required to be given under this A greement must be in writing, and must be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the party to whom such notice is required or permitted to be given. Any such notice will be considered to have been given when received, or if mailed, five (5) business days after it was mailed, as evidenced by the postmark. The mailing address for notice to either party will be the address shown on the face page of this Agreement. Either party may change its mailing address by notice as provided by this Section. Severabililgy: Should any term, condition, or provision herein be determined to be unenforceable, such determination shall not impair, limit, or otherwise affect the enforceability of the remaining terms of this Agreement. Waiver. Failure of either party to insist on strict performance shall not constitute a waiver of any of the provisions of this Agreement or a waiver of any default of the other party. J.\nK.\nL. .\nSection 9.\nMIKOHN GAMING\nCORPORATION, a\nNevada corporation, doing business\nas\nPROG RE SSIVE GAMING\nINTERNATIONAL\nC ORPO RATIO N\nBy: /s/ Michael A. Sicuro\nNameMichael A. Sicuro\nTitle:Executive Vice President & CFO\nDate:\nSurvival: The following provisions shall survive termination of this Agreement: Section IV, Section 5, Section 6, and Michael F. Dreitzer, an individual\nBy: /s/ Michael F. Dreitzer\nNanMichael F. Dreitzer\nD ate:	Exhibit 10.19\nCONSULTING AND CONFIDENTIALITY AGREEMENT\nThis Consulting and Confidentiality greement (this greement") is entered into as of September 19, 2005 and has an effective date\nof September 19, 2005, and is by and between by and between MIKOHN GAMING CORPORATION, a Nevada corporation and\nits subsidiaries and affiliates doing business as PROGRESSIVE GAMING INTERNATIONAL CORPORATION ("PGIC") with\nits principal place of business located at 920 Pilot Road, Las Vegas, Nevada 89119, and Michael F. Dreitzer, an individual\n("Contractor").\nWHEREAS, PGIC desires to engage a contractor for the performance of certain services; and\nWHEREAS, Contractor desires to perform such services for PGIC.\nNOW THEREFORE, for valuable consideration, the receipt of which is hereby acknowledged, the parties hereby agree as follows:\n1. Engagement of Services.\nPGIC hereby engages Contractor to perform the services described in this A greement, and Contractor agrees to perform\nservices for PGIC as follows: Provide PGIC with consulting services for up to 40 hours per month during the Term (as\nA.\ndefined below) with regard to PGIC's regulatory matters, and with any additional assignments and tasks as shall be assigned\nto Contractor by PGIC (the "Work," which shall also include any services, material, output, work, or work product arising\nout of this A greement or produced in connection with this greement).\nTime is of the essence. The Work shall be performed in a good, workman-like manner in accordance with the standards\nof\nB.\nContractor's profession and such other accepted standards as may be applicable to Work of this kind. Contractor shall\ndevote the necessary time and attention to the Work as is reasonably required to diligently, timely, efficiently, and\nprofessionally complete the Work no later than the time necessary or required by deadlines.\nC.\nAll Work must meet with PGIC's approval, which is to be determined in PGIC's sole discretion, which discretion shall not\nto be unreasonably withheld.\nPGIC specifically selected Contractor to perform the Work based upon PGIC receiving Contractor's personal service and\nD.\ntherefore Contractor may not subcontract or otherwise delegate its obligations under this A greement without PGIC's prior\nwritten consent and any attempted assignment contrary to this provision shall be void.\nContractor acknowledges that PGIC does business in a highly regulated gaming industry and that certain suitability\nrequirements for Contractor must be strictly met in order to perform its Services for PGIC. A ccordingly, Contractor shall\nsubmit to all PGIC requested screening, including but not limited to any or all of the following; alcohol & substance abuse\nE.\nscreening, fingerprinting, personal history (including criminal background) and/or personal financial disclosures\n(collectively, "Prerequisite Screening"). The Prerequisite Screening is a condition precedent to this A greement and/or\nperforming any ork under this greement. Contractor further agrees to execute any and all releases for PGIC to complete\nthe Prerequisite Screening. Should Contractor not successfully complete and/or pass the Prerequisite Screening or any later\nscreenings, this A greement shall be immediately terminated without any liability to PGIC or Contractor\n1\n2. Compensation and Term.\nFees. PGIC will pay Contractor for complete and full performance for all Work specified in this A greement and for all\nrelated tasks the amount of Six Thousand Five Hundred and 00/100 U.S. Dollars ($6,500.00) per month ("Compensation").\nA.\nThe Compensation is inclusive of any federal, state, municipal and other governmental taxes, franchise, sales, use, or other\ntaxes (included but not limited to value added taxes) now or hereafter imposed on the Contractor by any tax authority.\nExpenses. Contractor will be reimbursed pursuant to PGIC's standard policy as may be modified from time to time at\nPGIC's sole discretion for any reasonable expenses incurred in connection with the performance of the Work. All expenses\nB.\nmust be pre-approved by PGIC, and Contractor shall keep full and accurate records and documentation to substantiate the\namounts claimed in any invoice, which records shall be made available to PGIC for inspection at all times.\nBenefits. During the Term of this greement PGIC shall provide Contractor with mobile phone, handheld email and email\nC. service similar to that provided to employees of PGIC Contractor shall be responsible for any COBRA payments he may\nincur for maintaining health insurance.\nContractor's Financial Obligations. Contractor shall have full responsibility for the payment of all federal, state and local\ntaxes and contributions, including penalties and interest, imposed pursuant to unemployment insurance, social security,\nD.\nincome tax, gross income tax, workmen's compensation or any other similar statute, and Contractor shall be solely\nresponsible for any liability to third parties resulting from the negligent or intentional acts or omissions of Contractor,\nits\nrepresentatives, agents, employees or subcontractors arising from or occurring in the course of the Work.\nE.\nPayment Procedure. Contractor shall be paid Compensation every two weeks in accordance with Company's customary\npaydays.\nTerm. The term of this A greement shall be one (1) year (the "Term"). Company may terminate this A greement at any time\nfor any reason or no reason at all. In the event PGIC terminates this greement without cause, Contractor shall be entitled to\nreceive the Compensation for the remaining duration of the original Term. Contractor reserves the right to terminate this\nF.\nAgreement at any time upon thirty (30) days written notice to PGIC with no further liability or obligation to either party.\nNotwithstanding anything to the contrary in this A greement, PGIC shall have the sole and exclusive right and option to\nterminate this A greement by written notice to Contractor, and thereupon this A greement shall terminate and become void\nand there shall be no liability on the part of either party (excepting only any provision of this A greement which provides for\nits survival upon any termination of this A greement), upon the occurrence of any of the following "for cause" events:\nContractor's failure to timely apply for, obtain and/or maintain any and all licenses, permits, approvals and\n1) authorizations from any Regulator necessary for Contractor to perform the obligations and duties of this Agreement\nand/or to comply with applicable laws;\n2)\nA final order in writing by any Regulator requiring the termination of this greement;\nThe reasonable belief of PGIC that the continuation of this A greement will have a detrimental impact on the ability of\n3)\nPGIC or its parent, subsidiaries or affiliates to be qualified or to hold or maintain any license, permit, approval or\nauthorization issued or to be granted by any Regulator;\nThe commission of any act or anything that is or shall be an offense involving moral turpitude under federal, state or\n4) local laws, or which brings Contractor into public disrepute, contempt, scandal or ridicule, or which insults or offends\nthe community;\n2\n5)\nBreach of any of the confidentiality or non-disparagement provisions of this Agreement; or\n6) Disapproval of this Agreement by any Regulator having jurisdiction over such matters.\nRight to Withhold Payments. Regardless of whether PGIC withholds payments, Contractor shall have the obligation to\nconvey to PGIC all Work, including all source code, plans, records, drawings, reports and writings of any kind (if any) for\nG.\nthe Work. In addition to its right to withhold payments, PGIC may withhold any payment in whole or part to protect itself\nfrom or in the event of (i) defective Nork, (ii) third-party claims arising from Contractor's performance of the Work,\n(iii) failure of Contractor to make payments properly to any of its subcontractors, (iv) evidence of fraud, over-billing or\noverpayment discovered upon audit, or (v) unsatisfactory or untimely performance of the Work.\nIndependent Contractor Relationship. Contractor and PGIC understand, acknowledge and agree that Contractor's relationship\nwith PGIC will be that of an independent contractor and nothing in this A greement is intended to or should be construed to create a\npartnership, joint venture, or employment relationship. Contractor further represents that Contractor meets the requirements of an\n3. Independent Contractor as set forth in Internal Revenue Service Revenue Ruling 87-41. Further, Contractor shall not have any\nauthority to act, or attempt to act, or represent itself, directly or by implication, as an agent of PGIC or in any manner assume or\ncreate, or attempt to assume or create, any obligation on behalf of or in the name of PGIC, except as provided by PGIC, nor will\neither be deemed the agent, representative or employee of the other.\n4. Trade Secrets Intellectual Property Rights.\nDisclosure of Inventions. Contractor agrees to disclose promptly in writing to PGIC, or any person designated by PGIC,\nevery invention, including but not limited to computer programs, processes, know-how and other copyrightable and/or\npatentable material, which is conceived, made or reduced to practice by Contractor within the scope of the Work under this\nA greement. Contractor represents that Contractor's performance of all of the terms of this Agreement does not and will not\nA.\nbreach any agreement to keep in confidence proprietary information, knowledge or data of any third party and Contractor\nwill not disclose to PGIC, or induce PGIC to use, any confidential or proprietary information belonging to third parties\nunless such use or disclosure is authorized in writing by such owners. Contractor shall retain title to any prior works\nbelonging to Contractor, and to that extent Contractor represents that no property, inventions or copyrighted works\nbelonging to Contractor have been incorporated into the Work. If Contractor has incorporated any property of Contractor's\ninto the Work, such previously owned property is hereby transferred to PGIC.\nB. Non-Disclosure of Confidential Information.\nContractor agrees, during the Term and forever thereafter, to keep confidential all information provided by PGIC\n(excepting only such information as is already known to the public, without breach of this greement), and including\nany such information and material relating to any customer, vendor, licensor, licensee, or other party transacting\nbusiness with PGIC, and not to release, use or disclose the same except with the prior written permission of PGIC.\n1) Contractor recognizes and acknowledges that the list of PGIC's customers and clients, as it may exist from time to time,\nand PGIC's financial information, are valuable, confidential, special, and unique assets and trade secrets of PGIC's\nbusiness. Contractor will not during or after the Term, disclose the list of PGIC's customers and/or clients, or PGIC's\nfinancial information, or any part thereof, or any other trade secret, to any person, firm, corporation, association or\nother entity for any reason or purpose whatsoever.\n2) Contractor further agrees to consider all specific software, company and personal data,\n3\nregulatory data and information, investigative data and information, artwork and art techniques, programming\ntechniques, project concepts, planned projects, story concepts, game concepts, toys, models, drawings, photographs,\nanimation, cinematography, video, marketing strategies, planned projects, unique hardware, hardware concepts,\nhardware designs, terms of agreements with third parties, methods or techniques for acquiring materials for various\nprojects, data search and retrieval systems, computer processing systems and techniques, systems design, project\ndesign, routine design, algorithms of any sort, programming of any sort, interface design, layout or writing, operating\ninstructions, or any other type of work or intellectual property in any language, on any platform, for any operating\nsystem, in any medium whatsoever, to be confidential information, trade secrets and the exclusive property of PGIC\nwhich will not be converted or disclosed to anyone for any purpose whatsoever. All records, files, memoranda, reports,\nprice lists, customer lists drawings, plans, sketches, documents, equipment, and the like, relating to the business of\nPGIC, which Contractor shall use or prepare or come into contact with, shall remain the sole property and trade secret\nof PGIC. ny property described or mentioned in this section is jointly or separately referred to as the "Intellectual\nProperty" in this A greement. Any material, document, data, plan, information, report memorandum or writing of any\nkind whatsoever, in any media whatsoever, described or mentioned in this section is jointly or separately referred to as\nthe "Confidential Information" in this A greement. Those items constituting Intellectual Property may also constitute\nConfidential Information, and vice versa.\nContractor agrees that any information that is in the nature of Confidential Information defined in this section that\n3)\neither party receives from any third party and/or which either party is bound, contractually, or by common custom or\nusage in trade to keep in confidence shall also be considered "Confidential Information" by both parties.\nContractor agrees to use the Intellectual Property and/or Confidential Information solely to perform the project\n4)\nhereunder pursuant to the terms of this greement. Contractor's obligations with respect to the Intellectual Property and\nConfidential Information also extend to any third party's proprietary or confidentia information disclosed to Contractor\nin the course of providing services to PGIC.\nContractor will hold all Confidential Information in trust and confidence. Contractor agrees to take (and to fully\ncooperate with PGIC in undertaking) any reasonable steps necessary to protect the Confidential Information from any\n5)\ndisclosure whatsoever. Contractor agrees to require any employee, officer, director, agent or subcontractor who\nperforms work or services pursuant to this A greement to become bound by the provisions of this A greement.\nContractor shall provide adequate evidence that such persons are Contractor's employees.\nContractor recognizes that the disclosure of Confidentia Information or trade secrets by Contractor may give rise to\nirreparable injury to PGIC, which may not be adequately compensated by damages. A ccordingly, in the event of a\nbreach or threatened breach by Contractor of any provision of this section, PGIC shall be entitled to an injunction\n6)\nrestraining Contractor from disclosing, in whole or in part, the Confidential Information defined in this section, or from\nrendering any services to any person, firm, corporation, association or other entity to whom such Confidential\nInformation, in whole or in part has been disclosed or is threatened to be disclosed. Nothing herein shall be construed\nas prohibiting PGIC from pursuing any other remedies available to PGIC for such breach or threatened breach,\nincluding the recovery of damages from Contractor.\nThe undertakings set forth in this section shall survive the termination or cancellation of this A greement.\nC.\nNo Conflict of Interest. Contractor agrees during the Term of this Agreement not to accept work or enter into a contract or accept\nan obligation inconsistent or incompatible with Contractor's\n4\nobligations or the scope of services rendered for PGIC under this greement. Contractor is required to disclose any outside\nactivities or interests, including ownership or participation in the development of prior inventions, that conflict or may conflict with\nthe best interests of PGIC. Prompt disclosure is required under this paragraph if the activity or interest is related, directly or\nindirectly, to: a product or product line of PGIC, a manufacturing process of PGIC, or any activity that Contractor may be involved\nwith on behalf of PGIC. In the interests of full disclosure, the parties acknowledge and understand Contractor will be performing\ncontracting services for Global Gaming Group and TableMax among others, and it is hereby agreed that the provision of such\nservices presents no conflict of interest with PGIC. To the extent that a potential conflict should arise between any of these parties,\nContractor agrees to take all necessary steps to avoid the occurrence of same, including the termination of this or another agreement\nas warranted.\nD. ssignment of Inventions.\nInventions resulting from the Work (or that of Contractor's directors, officers, agents, subcontractors or employees) under\nthis A greement are the exclusive property of PGIC. "Inventions" includes any and all inventions, improvements,\n1)\ndiscoveries, and technical developments that Contractor, solely or jointly with others, conceives, makes, or reduces to\npractice within the scope of the Work. Contractor hereby assigns to PGIC Contractor's entire right, title and interest in the\nInventions worldwide and any associated intellectual property rights and agrees to execute any and all documentation\nrequested by PGIC to effect such assignment.\nContractor agrees to assist PGIC in any reasonable manner to obtain and enforce for PGIC's benefit, patents, copyrights,\nand other property rights covering the Inventions in any and all countries, and Contractor agrees to execute, when requested,\npatent, copyright or similar applications and assignments to PGIC and any other lawful documents deemed necessary by\n2)\nPGIC to carry out the purpose of this greement. Contractor further agrees that the obligations and undertaking stated in\nthis paragraph will continue beyond the termination of Contractor's service to PGIC If called upon to render assistance\nunder this paragraph, other than the execution of documents, Contractor will be entitled to a fair and reasonable fee for\nproviding such assistance.\nIn the event that PGIC is unable for any reason whatsoever to secure Contractor's signature to any lawful and necessary\ndocument required to apply for or execute any patent, copyright or other applications with respect to any Inventions\n(including improvements, renewals, assignments, extensions, continuations, divisions, amendments or continuations in part\n3)\nthereof), Contractor hereby irrevocably designates and appoints PGIC and its duly authorized officers and agents as\nContractor's agents and attomeys-in-fact to act for and in Contractor's behalf and instead of Contractor, to execute and file\nany such application and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights\nor other rights thereon with the same legal force and effect as if executed by Contractor Contractor is entitled to keep and\nretain Contractor's own tools, equipment and material provided and owned by Contractor.\nReturn of PGIC'S Property. Contractor acknowledges that PGIC's sole and exclusive property includes, among other things, all\ndocuments, such as drawings, manuals, notebooks, reports, sketches, records, computer programs, employee lists, software,\nhardware, videotapes, audiotapes, customer lists and the like in Contractor's custody, control or possession, whether delivered to\nE. Contractor by PGIC or made by Contractor in the performance of services under this greement, relating to the business activities\nof PGIC or its customers or suppliers and containing any information or data whatsoever, whether or not Confidentia Information.\nContractor agrees to deliver promptly to PGIC upon termination of this A greement or at any other time upon PGIC's request all of\nPGIC's property and all copies of PGIC's property in Contractor's possession,\n5\ncustody or control.\nWorks Made For Hire. All Work performed by Contractor while performing services for PGIC (during business hours or not) in\nany language, on any platform, for any operating system, in any media or in any form whatsoever (including but not limited to any\nof\nthe\nIntellectual\nProperty),\nshall\nbe\ndeemed\nto\nhave\nbeen\ndone\nupon\nthe\ncommission\nof\nand\nat\nthe\ninstruction\nof\nPGIC,\nshall\nbe\na\n"Work Made for Hire" within the meaning of the Copyright shall be the property of PGIC and may not be used by Contractor\nfor any purpose except the benefit of PGIC. Any and all such property shall be forthwith delivered to PGIC upon the PGIC 's\n5. request. Contractor agrees that each of Contractor's own employees, officers, directors, subcontractors and agents are performing\n"Works Made for Hire" for PGIC, and Contractor agrees to cause each of its employees, subcontractors or agents engaged in any\nproject or work for PGIC to sign valid written agreements that such work is being performed as a "Work Made for Hire" for PGIC.\nFurthermore, Contractor agrees to sign and to cause each of its employees, agents and subcontractors engaged in any project or\nwork for PGIC to sign written agreements acknowledging that such work is owned by PGIC and agreeing to execute a "quitclaim\nassignment" for such work to PGIC.\nContractor's Cooperation in Establishing wnership. Contractor shall, from time to time as may be requested by PGIC, do all\nthings that may be necessary to establish or document PGIC 's ownership of any work or work product that is properly the Property\nof PGIC, including, but not limited to execution of appropriate copyright applications, copyright assignments, transfers, sales,\n6.\nreleases or any and all other documents or writings. Contractor hereby waives any power Contractor may have to control, cause to\nmodify or otherwise effect the Intellectual Property, and hereby transfers all such powers, including but not limited to any powers\nof Droit Morale, to PGIC. Contractor hereby irrevocably appoints PGIC as Contractor's attorney in fact empowered solely to\nexecute any documents necessary to establish PGIC's ownership rights, rights to maintain, rights to defend and rights to control any\nof the Intellectual Property and/or Confidential Property.\nAdditional Compensation. Other than Contractor's stated compensation, neither Contractor nor its employees, subcontractors,\nofficers, directors or agents is entitled to receive any additional compensation from PGIC (including but not limited to royalties or\nfees) as a result of any work performed, concepts developed, ideas submitted, or other efforts made while a Contractor of PGIC\nexcept to the extent such further compensation is set forth in a formal written agreement. Other than as provided by any formal\n7. written agreement Contractor acknowledges that Contractor has no propriety or ownership interest in PGIC, or any related entities,\nand will not receive any such interest. Unless stated in a separate written agreement, Contractor is not entitled to any equity interest\nin PGIC. Neither Contractor nor any of Contractor's officers, agents, directors or employees is entitled to any employment benefits\nfrom PGIC, including but not limited to insurance, pensions, paid holidays, vacations, sick leave, paid time off or profit sharing\nexcept as set forth in written agreement.\nNon-Disparagement Neither party shall make any remarks or issue any communication, written or otherwise, that disparages or\nderogates, or encourages any adverse action against the other party or any of its affiliates, officers, directors, employees or agents,\n8. provided that this paragraph shall not preclude Contractor from testifying truthfully under oath, pursuant to subpoena or otherwise,\nas to his first-hand knowledge, or from providing his first-hand knowledge to any governmental, regulatory or self-regulatory body\nor agency with jurisdiction over PGIC's activities.\nNoninterference with Business. During the Term of this A greement and for a period of two (2) years immediately following\n9.\ntermination of this A greement Contractor agrees not to solicit or induce any employee or independent contractor, or other\nperson(s) to terminate or breach, or cause to terminate or breach any employment relationship, contractual relationship or other\nrelationship with PGIC.\n6\n100 ontractor's Representations, Warranties And Indemnification.\nContractor's Warranties. In addition to other representations and warranties provided for herein, Contractor represents\nA.\nand warrants to PGIC that:\n1) Contractor is the sole and exclusive supplier of the Work performed by Contractor;\nWith respect to the Work, and any materials pertaining thereto that Contractor discloses, uses, assigns and/or delivers in\n2)\nthe performance of its obligations hereunder, Contractor has the right to make such disclosure, use, and/or delivery\nthereof without liability to any third party;\n3)\nThe performance of the terms of this A greement and of Contractor's obligation hereunder will not breach any separate\nagreement by which Contractor is bound;\n4)\nContractor has not previously granted any rights in and to the Work to any third party that are inconsistent with any of\nPGIC's licenses and/or rights hereunder;\n5) Contractor has full power and authority to enter into this A greement and to fulfill its obligations hereunder;\n6) Contractor is legally competent to sign this Agreement;\nContractor warrants and represents to PGIC that all acts, duties and obligations required of it under this greement\n7)\nshall be performed in good faith; and\n8)\nContractor agrees to fully cooperate with any legitimate investigation of Company and to produce any materials or\ndocuments requested by regulatory authorities.\nContractor hereby agrees to employ only persons who are previously approved by PGIC in writing and who are legally\n9)\nauthorized to work in the jurisdictions where Work is to be performed and to have appropriate employment\nauthorization forms, if required, for each person employed by it.\nContractor's Indemnification. Contractor agrees to indemnify and hold harmless PGIC and its customers, affiliates and/or\nsub-licensees and end-users from and against any and all claims, losses, liabilities, damages, expenses and costs (including\nattorneys and defense costs) and judgments that may be asserted against PGIC that result from the acts or omissions of\nContractor, Contractor's employees, if any, and Contractor's agents, and/or which result from a breach of any of the\nwarranties expressly set forth in this A greement, or incurred in the settlement or avoidance of any such matter. As a\nB. condition to indemnification, PGIC will promptly inform Contractor in writing of the assertion of any such claim, demand\nor suit, and the parties will cooperate with and assist one another with respect to the defense and/or settlement of such\nmatter (in a manner consistent with the parties' respective confidentiality obligations and desired preservation of\nattorney/client, work product and other privileges). Contractor hereby confirms that Contractor will not agree to the\nsettlement of any such claim, demand or suit prior to judgment thereon by any court of competent jurisdiction unless\nPGIC's written consent is first obtained, which consent will not be unreasonably withheld or delayed.\n1PGIC'S Warranties, Representation and Indemnification:\nA. PGIC'S Warranties: PGIC represents and warrants to Contractor that:\n1) PGIC possesses full power and authority to enter into this A greement and to fulfill its obligations hereunder;\n2)\nThe performance of the terms of this A greement and of PGIC's obligations hereunder will not breach any separate\nagreement by which PGIC is bound;\n3)\nPGIC warrants and represents to Contractor that all acts, duties and obligations required of it under this A greement\nshall be performed in good faith.\nB.\nPGIC'S Indemnity: PGIC agrees to indemnify and hold harmless Contractor from and against\nD\nany and all claims, losses, liabilities, damages, expenses and costs (including attorneys fees and defense costs) which result\nfrom a breach of any of the warranties expressly set forth in this A greement, or incurred in the settlement or avoidance of\nany such matter, or which are incurred in the course of PGIC's activities in connection with this greement unless such\nmatters are the fault of Contractor. As a condition to indemnification, Contractor will promptly inform PGIC in writing of\nthe assertion of any such claim, demand or suit, and the parties will cooperate with and assist one another with respect to the\ndefense and/or settlement of such matter (consistent with the parties' respective confidentiality obligations and preservation\nof attorney/client, work product and other privileges). PGIC hereby confirms that it will not agree to the settlement of any\nsuch claim, demand or suit prior to judgment thereon by any court of competent jurisdiction unless Contractor's consent is\nfirst obtained, which consent will not be unreasonably withheld or delayed.\n12G eneral Provisions:\nGoverning Law: This greement will be governed by and construed in accordance with the laws of the United States and\nthe State of Nevada applied to agreements entered into and to be performed entirely within Nevada between Nevada\nA.\nresidents. Contractor and PGIC further agree that for purposes of venue and jurisdiction, that any disputes, issues,\nenforcement and/or all other matters concerning the A greement will be determined in Clark County, State of Nevada,\nUnited States of America. The parties expressly waive any other jurisdiction to which they might be entitled as a result of\ntheir present or future domicile or for any other reason.\nCompliance with Laws: In the performance of the Work, Contractor shall comply with all applicable laws, rules and\nregulations, including but not limited to all requirements and provisions of the laws and regulations of the United States, the\nB.\nStates and subdivisions thereof in which PGIC or any of PGIC's subsidiaries or affiliates (regardless of when or how\nformed) carry on their business and all general rules regulations and ethical standards of national, State and local agencies\nand regulatory and advisory groups having jurisdiction over any business of PGIC or any of PGIC's subsidiaries or affiliates\n(regardless of when or how formed) as they exist now and as same may be amended from time to time.\nRequlatory Matters: PGIC, its parent corporation and certain related entities are licensed by or otherwise subject to the\nauthority of various casino and gaming regulatory agencies ("Regulator"). PGIC has adopted a regulatory compliance\nC.\npolicy, and Contractor agrees to provide PGIC with such documentation, information and assurances regarding itself, any\nprincipal employees, brokers, agents or others where applicable as may be necessary in order for PGIC to comply with\nPGIC'S regulatory compliance policy and with the request of any Regulator. The foregoing shall be a material obligation of\nContractor hereunder.\nInjuries: Contractor acknowledges Contractor's obligation to obtain appropriate insurance coverage for the benefit of\nD.\nContractor (and Contractor's employees, if any). Contractor waives any rights to recovery from PGIC for any injuries that\nContractor (and/or Contractor's employees) may sustain while performing services under this A greement and that are a\nresult of the negligence of Contractor or Contractor's employees.\nEntire Agreement Modification: This Agreement, including all Exhibits to this Agreement, constitute the entire\nE.\nagreement between the parties relating to this subject matter and supersedes all prior or simultaneous representations\ndiscussions, negotiations, and agreements, whether written or oral. ny and all amendments, changes, revisions, and/or\nmodifications to this greement must be in writing signed by Contractor and PGIC.\n8\nWaiver: No term or provision hereof will be considered waived by either party, and no breach excused by either party,\nF.\nunless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by\neither party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or\nexcuse of any other, different, or subsequent breach by either party.\nSuccessors and Assigns: Contractor may not assign its rights or obligations arising under this Agreement without PGIC's\nprior written consent. PGIC may assign its rights and obligations under this A greement. This A greement will be for the\nG.\nbenefit of PGIC's successors and assigns, and will be binding on Contractor's heirs, legal representatives and permitted\nassignees.\nLegal Fees: If any dispute arises between the parties with respect to the matters covered by this A greement which leads to a\nproceeding to resolve such dispute, the prevailing party in such proceeding shall be entitled to receive its reasonable\nH.\nattorneys' fees, expert witness fees and out-of-pocket costs incurred in connection with such proceeding, in addition to any\nother relief to which it may be entitled, including but not limited to equitable relief such as restraining orders and\ninjunctions.\nNotices: All notices, requests and other communications required to be given under this A greement must be in writing, and\nmust be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the\nI.\nparty\nto whom such notice is required or permitted to be given. Any such notice will be considered to have been given when\nreceived, or if mailed, five (5) business days after it was mailed, as evidenced by the postmark. The mailing address for\nnotice to either party will be the address shown on the face page of this A greement. Either party may change its mailing\naddress by notice as provided by this Section.\nSeverability: Should any term, condition, or provision herein be determined to be unenforceable, such determination shall\nJ.\nnot impair, limit, or otherwise affect the enforceability of the remaining terms of this greement.\nK.\nWaiver. Failure of either party to insist on strict performance shall not constitute a waiver of any of the provisions of this\ngreement or a waiver of any default of the other party.\nL.\nSurvival: The following provisions shall survive termination of this greement: Section IV, Section 5, Section 6, and\nSection 9.\nMIKOHN GAMING\nMichael F. Dreitzer, an individual\nCORPORATION, a\nNevada corporation, doing business\nas\nPROGRESSIVE GAMING\nINTERNATIONAL\nCORPORATION\nBy: /s/ Michael A. Sicuro\nMichael F. Dreitzer\nNameMichael A. Sicuro\nNamichael F. Dreitzer\ntle:Executive Vice President & CFO\nDate:\nDate:\n9	Exhibit 10.19\nCONSULTING AND CONFIDENTIALITY AGREEMENT\nThis Consulting and Confidentiality Agreement (this “Agreement”) is entered into as of September 19, 2005 and has an effective date\nof September 19, 2005, and is by and between by and between MIKOHN GAMING CORPORATION, a Nevada corporation and\nits subsidiaries and affiliates doing business as PROGRESSIVE GAMING INTERNATIONAL CORPORATION (“PGIC”) with\nits principal place of business located at 920 Pilot Road, Las Vegas, Nevada 89119, and Michael F. Dreitzer, an individual\n(“Contractor”).\nWHEREAS, PGIC desires to engage a contractor for the performance of certain services; and\nWHEREAS, Contractor desires to perform such services for PGIC.\nNOW THEREFORE, for valuable consideration, the receipt of which is hereby acknowledged, the parties hereby agree as follows:\n1. Engagement of Services.\nA.\nPGIC hereby engages Contractor to perform the services described in this Agreement, and Contractor agrees to perform\nservices for PGIC as follows: Provide PGIC with consulting services for up to 40 hours per month during the Term (as\ndefined below) with regard to PGIC’s regulatory matters, and with any additional assignments and tasks as shall be assigned\nto Contractor by PGIC (the “Work,” which shall also include any services, material, output, work, or work product arising\nout of this Agreement or produced in connection with this Agreement).\nB.\nTime is of the essence. The Work shall be performed in a good, workman-like manner in accordance with the standards of\nContractor’s profession and such other accepted standards as may be applicable to Work of this kind. Contractor shall\ndevote the necessary time and attention to the Work as is reasonably required to diligently, timely, efficiently, and\nprofessionally complete the Work no later than the time necessary or required by deadlines.\nC.\nAll Work must meet with PGIC’s approval, which is to be determined in PGIC’s sole discretion, which discretion shall not\nto be unreasonably withheld.\nD.\nPGIC specifically selected Contractor to perform the Work based upon PGIC receiving Contractor’s personal service and\ntherefore Contractor may not subcontract or otherwise delegate its obligations under this Agreement without PGIC’s prior\nwritten consent and any attempted assignment contrary to this provision shall be void.\nE.\nContractor acknowledges that PGIC does business in a highly regulated gaming industry and that certain suitability\nrequirements for Contractor must be strictly met in order to perform its Services for PGIC. Accordingly, Contractor shall\nsubmit to all PGIC requested screening, including but not limited to any or all of the following; alcohol & substance abuse\nscreening, fingerprinting, personal history (including criminal background) and/or personal financial disclosures\n(collectively, “Prerequisite Screening”). The Prerequisite Screening is a condition precedent to this Agreement and/or\nperforming any Work under this Agreement. Contractor further agrees to execute any and all releases for PGIC to complete\nthe Prerequisite Screening. Should Contractor not successfully complete and/or pass the Prerequisite Screening or any later\nscreenings, this Agreement shall be immediately terminated without any liability to PGIC or Contractor\n1\n2. Compensation and Term.\nA.\nFees. PGIC will pay Contractor for complete and full performance for all Work specified in this Agreement and for all\nrelated tasks the amount of Six Thousand Five Hundred and 00/100 U.S. Dollars ($6,500.00) per month (“Compensation”).\nThe Compensation is inclusive of any federal, state, municipal and other governmental taxes, franchise, sales, use, or other\ntaxes (included but not limited to value added taxes) now or hereafter imposed on the Contractor by any tax authority.\nB.\nExpenses. Contractor will be reimbursed pursuant to PGIC’s standard policy as may be modified from time to time at\nPGIC’s sole discretion for any reasonable expenses incurred in connection with the performance of the Work. All expenses\nmust be pre-approved by PGIC, and Contractor shall keep full and accurate records and documentation to substantiate the\namounts claimed in any invoice, which records shall be made available to PGIC for inspection at all times.\nC.\nBenefits. During the Term of this Agreement PGIC shall provide Contractor with mobile phone, handheld email and email\nservice similar to that provided to employees of PGIC. Contractor shall be responsible for any COBRA payments he may\nincur for maintaining health insurance.\nD.\nContractor’s Financial Obligations. Contractor shall have full responsibility for the payment of all federal, state and local\ntaxes and contributions, including penalties and interest, imposed pursuant to unemployment insurance, social security,\nincome tax, gross income tax, workmen’s compensation or any other similar statute, and Contractor shall be solely\nresponsible for any liability to third parties resulting from the negligent or intentional acts or omissions of Contractor, its\nrepresentatives, agents, employees or subcontractors arising from or occurring in the course of the Work.\nE.\nPayment Procedure. Contractor shall be paid Compensation every two weeks in accordance with Company’s customary\npaydays.\nF.\nTerm. The term of this Agreement shall be one (1) year (the “Term”). Company may terminate this Agreement at any time\nfor any reason or no reason at all. In the event PGIC terminates this Agreement without cause, Contractor shall be entitled to\nreceive the Compensation for the remaining duration of the original Term. Contractor reserves the right to terminate this\nAgreement at any time upon thirty (30) days written notice to PGIC with no further liability or obligation to either party.\nNotwithstanding anything to the contrary in this Agreement, PGIC shall have the sole and exclusive right and option to\nterminate this Agreement by written notice to Contractor, and thereupon this Agreement shall terminate and become void\nand there shall be no liability on the part of either party (excepting only any provision of this Agreement which provides for\nits survival upon any termination of this Agreement), upon the occurrence of any of the following “for cause” events:\n1)\nContractor’s failure to timely apply for, obtain and/or maintain any and all licenses, permits, approvals and\nauthorizations from any Regulator necessary for Contractor to perform the obligations and duties of this Agreement\nand/or to comply with applicable laws;\n2) A final order in writing by any Regulator requiring the termination of this Agreement;\n3)\nThe reasonable belief of PGIC that the continuation of this Agreement will have a detrimental impact on the ability of\nPGIC or its parent, subsidiaries or affiliates to be qualified or to hold or maintain any license, permit, approval or\nauthorization issued or to be granted by any Regulator;\n4)\nThe commission of any act or anything that is or shall be an offense involving moral turpitude under federal, state or\nlocal laws, or which brings Contractor into public disrepute, contempt, scandal or ridicule, or which insults or offends\nthe community;\n2\n5) Breach of any of the confidentiality or non-disparagement provisions of this Agreement; or\n6) Disapproval of this Agreement by any Regulator having jurisdiction over such matters.\nG.\nRight to Withhold Payments. Regardless of whether PGIC withholds payments, Contractor shall have the obligation to\nconvey to PGIC all Work, including all source code, plans, records, drawings, reports and writings of any kind (if any) for\nthe Work. In addition to its right to withhold payments, PGIC may withhold any payment in whole or part to protect itself\nfrom or in the event of (i) defective Work, (ii) third-party claims arising from Contractor’s performance of the Work,\n(iii) failure of Contractor to make payments properly to any of its subcontractors, (iv) evidence of fraud, over-billing or\noverpayment discovered upon audit, or (v) unsatisfactory or untimely performance of the Work.\n3.\nIndependent Contractor Relationship. Contractor and PGIC understand, acknowledge and agree that Contractor’s relationship\nwith PGIC will be that of an independent contractor and nothing in this Agreement is intended to or should be construed to create a\npartnership, joint venture, or employment relationship. Contractor further represents that Contractor meets the requirements of an\nIndependent Contractor as set forth in Internal Revenue Service Revenue Ruling 87-41 . Further, Contractor shall not have any\nauthority to act, or attempt to act, or represent itself, directly or by implication, as an agent of PGIC or in any manner assume or\ncreate, or attempt to assume or create, any obligation on behalf of or in the name of PGIC, except as provided by PGIC, nor will\neither be deemed the agent, representative or employee of the other.\n4. Trade Secrets — Intellectual Property Rights.\nA.\nDisclosure of Inventions. Contractor agrees to disclose promptly in writing to PGIC, or any person designated by PGIC,\nevery invention, including but not limited to computer programs, processes, know-how and other copyrightable and/or\npatentable material, which is conceived, made or reduced to practice by Contractor within the scope of the Work under this\nAgreement. Contractor represents that Contractor’s performance of all of the terms of this Agreement does not and will not\nbreach any agreement to keep in confidence proprietary information, knowledge or data of any third party and Contractor\nwill not disclose to PGIC, or induce PGIC to use, any confidential or proprietary information belonging to third parties\nunless such use or disclosure is authorized in writing by such owners. Contractor shall retain title to any prior works\nbelonging to Contractor, and to that extent Contractor represents that no property, inventions or copyrighted works\nbelonging to Contractor have been incorporated into the Work. If Contractor has incorporated any property of Contractor’s\ninto the Work, such previously owned property is hereby transferred to PGIC.\nB. Non-Disclosure of Confidential Information.\n1)\nContractor agrees, during the Term and forever thereafter, to keep confidential all information provided by PGIC\n(excepting only such information as is already known to the public, without breach of this Agreement), and including\nany such information and material relating to any customer, vendor, licensor, licensee, or other party transacting\nbusiness with PGIC, and not to release, use or disclose the same except with the prior written permission of PGIC.\nContractor recognizes and acknowledges that the list of PGIC’s customers and clients, as it may exist from time to time,\nand PGIC’s financial information, are valuable, confidential, special, and unique assets and trade secrets of PGIC’s\nbusiness. Contractor will not, during or after the Term, disclose the list of PGIC’s customers and/or clients, or PGIC’s\nfinancial information, or any part thereof, or any other trade secret, to any person, firm, corporation, association or\nother entity for any reason or purpose whatsoever.\n2) Contractor further agrees to consider all specific software, company and personal data,\n3\nregulatory data and information, investigative data and information, artwork and art techniques, programming\ntechniques, project concepts, planned projects, story concepts, game concepts, toys, models, drawings, photographs,\nanimation, cinematography, video, marketing strategies, planned projects, unique hardware, hardware concepts,\nhardware designs, terms of agreements with third parties, methods or techniques for acquiring materials for various\nprojects, data search and retrieval systems, computer processing systems and techniques, systems design, project\ndesign, routine design, algorithms of any sort, programming of any sort, interface design, layout or writing, operating\ninstructions, or any other type of work or intellectual property in any language, on any platform, for any operating\nsystem, in any medium whatsoever, to be confidential information, trade secrets and the exclusive property of PGIC\nwhich will not be converted or disclosed to anyone for any purpose whatsoever. All records, files, memoranda, reports,\nprice lists, customer lists, drawings, plans, sketches, documents, equipment, and the like, relating to the business of\nPGIC, which Contractor shall use or prepare or come into contact with, shall remain the sole property and trade secret\nof PGIC. Any property described or mentioned in this section is jointly or separately referred to as the “Intellectual\nProperty” in this Agreement. Any material, document, data, plan, information, report, memorandum or writing of any\nkind whatsoever, in any media whatsoever, described or mentioned in this section is jointly or separately referred to as\nthe “Confidential Information” in this Agreement. Those items constituting Intellectual Property may also constitute\nConfidential Information, and vice versa.\n3)\nContractor agrees that any information that is in the nature of Confidential Information defined in this section that\neither party receives from any third party and/or which either party is bound, contractually, or by common custom or\nusage in trade to keep in confidence shall also be considered “Confidential Information” by both parties.\n4)\nContractor agrees to use the Intellectual Property and/or Confidential Information solely to perform the project\nhereunder pursuant to the terms of this Agreement. Contractor’s obligations with respect to the Intellectual Property and\nConfidential Information also extend to any third party’s proprietary or confidential information disclosed to Contractor\nin the course of providing services to PGIC.\n5)\nContractor will hold all Confidential Information in trust and confidence. Contractor agrees to take (and to fully\ncooperate with PGIC in undertaking) any reasonable steps necessary to protect the Confidential Information from any\ndisclosure whatsoever. Contractor agrees to require any employee, officer, director, agent or subcontractor who\nperforms work or services pursuant to this Agreement to become bound by the provisions of this Agreement.\nContractor shall provide adequate evidence that such persons are Contractor’s employees.\n6)\nContractor recognizes that the disclosure of Confidential Information or trade secrets by Contractor may give rise to\nirreparable injury to PGIC, which may not be adequately compensated by damages. Accordingly, in the event of a\nbreach or threatened breach by Contractor of any provision of this section, PGIC shall be entitled to an injunction\nrestraining Contractor from disclosing, in whole or in part, the Confidential Information defined in this section, or from\nrendering any services to any person, firm, corporation, association or other entity to whom such Confidential\nInformation, in whole or in part, has been disclosed or is threatened to be disclosed. Nothing herein shall be construed\nas prohibiting PGIC from pursuing any other remedies available to PGIC for such breach or threatened breach,\nincluding the recovery of damages from Contractor.\nThe undertakings set forth in this section shall survive the termination or cancellation of this Agreement.\nC.\nNo Conflict of Interest. Contractor agrees during the Term of this Agreement not to accept work or enter into a contract or accept\nan obligation inconsistent or incompatible with Contractor’s\n4\nobligations or the scope of services rendered for PGIC under this Agreement. Contractor is required to disclose any outside\nactivities or interests, including ownership or participation in the development of prior inventions, that conflict or may conflict with\nthe best interests of PGIC. Prompt disclosure is required under this paragraph if the activity or interest is related, directly or\nindirectly, to: a product or product line of PGIC, a manufacturing process of PGIC, or any activity that Contractor may be involved\nwith on behalf of PGIC. In the interests of full disclosure, the parties acknowledge and understand Contractor will be performing\ncontracting services for Global Gaming Group and TableMax among others, and it is hereby agreed that the provision of such\nservices presents no conflict of interest with PGIC. To the extent that a potential conflict should arise between any of these parties,\nContractor agrees to take all necessary steps to avoid the occurrence of same, including the termination of this or another agreement\nas warranted.\nD. Assignment of Inventions.\n1)\nInventions resulting from the Work (or that of Contractor’s directors, officers, agents, subcontractors or employees) under\nthis Agreement are the exclusive property of PGIC. “Inventions” includes any and all inventions, improvements,\ndiscoveries, and technical developments that Contractor, solely or jointly with others, conceives, makes, or reduces to\npractice within the scope of the Work. Contractor hereby assigns to PGIC Contractor’s entire right, title and interest in the\nInventions worldwide and any associated intellectual property rights, and agrees to execute any and all documentation\nrequested by PGIC to effect such assignment.\n2)\nContractor agrees to assist PGIC in any reasonable manner to obtain and enforce for PGIC’s benefit, patents, copyrights,\nand other property rights covering the Inventions in any and all countries, and Contractor agrees to execute, when requested,\npatent, copyright or similar applications and assignments to PGIC and any other lawful documents deemed necessary by\nPGIC to carry out the purpose of this Agreement. Contractor further agrees that the obligations and undertaking stated in\nthis paragraph will continue beyond the termination of Contractor’s service to PGIC. If called upon to render assistance\nunder this paragraph, other than the execution of documents, Contractor will be entitled to a fair and reasonable fee for\nproviding such assistance.\n3)\nIn the event that PGIC is unable for any reason whatsoever to secure Contractor’s signature to any lawful and necessary\ndocument required to apply for or execute any patent, copyright or other applications with respect to any Inventions\n(including improvements, renewals, assignments, extensions, continuations, divisions, amendments or continuations in part\nthereof), Contractor hereby irrevocably designates and appoints PGIC and its duly authorized officers and agents as\nContractor’s agents and attorneys-in-fact to act for and in Contractor’s behalf and instead of Contractor, to execute and file\nany such application and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights\nor other rights thereon with the same legal force and effect as if executed by Contractor. Contractor is entitled to keep and\nretain Contractor’s own tools, equipment and material provided and owned by Contractor.\nE.\nReturn of PGIC’S Property. Contractor acknowledges that PGIC’s sole and exclusive property includes, among other things, all\ndocuments, such as drawings, manuals, notebooks, reports, sketches, records, computer programs, employee lists, software,\nhardware, videotapes, audiotapes, customer lists and the like in Contractor’s custody, control or possession, whether delivered to\nContractor by PGIC or made by Contractor in the performance of services under this Agreement, relating to the business activities\nof PGIC or its customers or suppliers and containing any information or data whatsoever, whether or not Confidential Information.\nContractor agrees to deliver promptly to PGIC upon termination of this Agreement or at any other time upon PGIC’s request all of\nPGIC’s property and all copies of PGIC’s property in Contractor’s possession,\n5\ncustody or control.\n5.\nWorks Made For Hire. All Work performed by Contractor while performing services for PGIC (during business hours or not) in\nany language, on any platform, for any operating system, in any media or in any form whatsoever (including but not limited to any\nof the Intellectual Property), shall be deemed to have been done upon the commission of and at the instruction of PGIC, shall be a\n“Work Made for Hire” within the meaning of the Copyright Act, shall be the property of PGIC and may not be used by Contractor\nfor any purpose except the benefit of PGIC. Any and all such property shall be forthwith delivered to PGIC upon the PGIC ‘s\nrequest. Contractor agrees that each of Contractor’s own employees, officers, directors, subcontractors and agents are performing\n“Works Made for Hire” for PGIC, and Contractor agrees to cause each of its employees, subcontractors or agents engaged in any\nproject or work for PGIC to sign valid written agreements that such work is being performed as a “Work Made for Hire” for PGIC.\nFurthermore, Contractor agrees to sign and to cause each of its employees, agents and subcontractors engaged in any project or\nwork for PGIC to sign written agreements acknowledging that such work is owned by PGIC and agreeing to execute a “quitclaim\nassignment” for such work to PGIC.\n6.\nContractor’s Cooperation in Establishing Ownership. Contractor shall, from time to time as may be requested by PGIC, do all\nthings that may be necessary to establish or document PGIC ‘s ownership of any work or work product that is properly the Property\nof PGIC, including, but not limited to execution of appropriate copyright applications, copyright assignments, transfers, sales,\nreleases or any and all other documents or writings. Contractor hereby waives any power Contractor may have to control, cause to\nmodify or otherwise effect the Intellectual Property, and hereby transfers all such powers, including but not limited to any powers\nof Droit Morale, to PGIC. Contractor hereby irrevocably appoints PGIC as Contractor’s attorney in fact empowered solely to\nexecute any documents necessary to establish PGIC’s ownership rights, rights to maintain, rights to defend and rights to control any\nof the Intellectual Property and/or Confidential Property.\n7.\nAdditional Compensation. Other than Contractor’s stated compensation, neither Contractor nor its employees, subcontractors,\nofficers, directors or agents is entitled to receive any additional compensation from PGIC (including but not limited to royalties or\nfees) as a result of any work performed, concepts developed, ideas submitted, or other efforts made while a Contractor of PGIC\nexcept to the extent such further compensation is set forth in a formal written agreement. Other than as provided by any formal\nwritten agreement Contractor acknowledges that Contractor has no propriety or ownership interest in PGIC, or any related entities,\nand will not receive any such interest. Unless stated in a separate written agreement, Contractor is not entitled to any equity interest\nin PGIC. Neither Contractor nor any of Contractor’s officers, agents, directors or employees is entitled to any employment benefits\nfrom PGIC, including but not limited to insurance, pensions, paid holidays, vacations, sick leave, paid time off or profit sharing\nexcept as set forth in written agreement.\n8.\nNon-Disparagement. Neither party shall make any remarks or issue any communication, written or otherwise, that disparages or\nderogates, or encourages any adverse action against the other party or any of its affiliates, officers, directors, employees or agents,\nprovided that this paragraph shall not preclude Contractor from testifying truthfully under oath, pursuant to subpoena or otherwise,\nas to his first-hand knowledge, or from providing his first-hand knowledge to any governmental, regulatory or self-regulatory body\nor agency with jurisdiction over PGIC’s activities.\n9.\nNoninterference with Business. During the Term of this Agreement and for a period of two (2) years immediately following\ntermination of this Agreement, Contractor agrees not to solicit or induce any employee or independent contractor, or other\nperson(s) to terminate or breach, or cause to terminate or breach any employment relationship, contractual relationship or other\nrelationship with PGIC.\n6\n10.Contractor’s Representations, Warranties And Indemnification.\nA.\nContractor’s Warranties. In addition to other representations and warranties provided for herein, Contractor represents\nand warrants to PGIC that:\n1) Contractor is the sole and exclusive supplier of the Work performed by Contractor;\n2)\nWith respect to the Work, and any materials pertaining thereto that Contractor discloses, uses, assigns and/or delivers in\nthe performance of its obligations hereunder, Contractor has the right to make such disclosure, use, and/or delivery\nthereof without liability to any third party;\n3)\nThe performance of the terms of this Agreement and of Contractor’s obligation hereunder will not breach any separate\nagreement by which Contractor is bound;\n4)\nContractor has not previously granted any rights in and to the Work to any third party that are inconsistent with any of\nPGIC’s licenses and/or rights hereunder;\n5) Contractor has full power and authority to enter into this Agreement and to fulfill its obligations hereunder;\n6) Contractor is legally competent to sign this Agreement;\n7)\nContractor warrants and represents to PGIC that all acts, duties and obligations required of it under this Agreement\nshall be performed in good faith; and\n8)\nContractor agrees to fully cooperate with any legitimate investigation of Company and to produce any materials or\ndocuments requested by regulatory authorities.\n9)\nContractor hereby agrees to employ only persons who are previously approved by PGIC in writing and who are legally\nauthorized to work in the jurisdictions where Work is to be performed and to have appropriate employment\nauthorization forms, if required, for each person employed by it.\nB.\nContractor’s Indemnification. Contractor agrees to indemnify and hold harmless PGIC and its customers, affiliates and/or\nsub-licensees and end-users from and against any and all claims, losses, liabilities, damages, expenses and costs (including\nattorneys and defense costs) and judgments that may be asserted against PGIC that result from the acts or omissions of\nContractor, Contractor’s employees, if any, and Contractor’s agents, and/or which result from a breach of any of the\nwarranties expressly set forth in this Agreement, or incurred in the settlement or avoidance of any such matter. As a\ncondition to indemnification, PGIC will promptly inform Contractor in writing of the assertion of any such claim, demand\nor suit, and the parties will cooperate with and assist one another with respect to the defense and/or settlement of such\nmatter (in a manner consistent with the parties’ respective confidentiality obligations and desired preservation of\nattorney/client, work product and other privileges). Contractor hereby confirms that Contractor will not agree to the\nsettlement of any such claim, demand or suit prior to judgment thereon by any court of competent jurisdiction unless\nPGIC’s written consent is first obtained, which consent will not be unreasonably withheld or delayed.\n11.PGIC’S Warranties, Representation and Indemnification:\nA. PGIC’S Warranties: PGIC represents and warrants to Contractor that:\n1) PGIC possesses full power and authority to enter into this Agreement and to fulfill its obligations hereunder;\n2)\nThe performance of the terms of this Agreement and of PGIC’s obligations hereunder will not breach any separate\nagreement by which PGIC is bound;\n3)\nPGIC warrants and represents to Contractor that all acts, duties and obligations required of it under this Agreement\nshall be performed in good faith.\nB. PGIC’S Indemnity: PGIC agrees to indemnify and hold harmless Contractor from and against\n7\nany and all claims, losses, liabilities, damages, expenses and costs (including attorneys fees and defense costs) which result\nfrom a breach of any of the warranties expressly set forth in this Agreement, or incurred in the settlement or avoidance of\nany such matter, or which are incurred in the course of PGIC’s activities in connection with this Agreement unless such\nmatters are the fault of Contractor. As a condition to indemnification, Contractor will promptly inform PGIC in writing of\nthe assertion of any such claim, demand or suit, and the parties will cooperate with and assist one another with respect to the\ndefense and/or settlement of such matter (consistent with the parties’ respective confidentiality obligations and preservation\nof attorney/client, work product and other privileges). PGIC hereby confirms that it will not agree to the settlement of any\nsuch claim, demand or suit prior to judgment thereon by any court of competent jurisdiction unless Contractor’s consent is\nfirst obtained, which consent will not be unreasonably withheld or delayed.\n12.General Provisions:\nA.\nGoverning Law: This Agreement will be governed by and construed in accordance with the laws of the United States and\nthe State of Nevada applied to agreements entered into and to be performed entirely within Nevada between Nevada\nresidents. Contractor and PGIC further agree that for purposes of venue and jurisdiction, that any disputes, issues,\nenforcement and/or all other matters concerning the Agreement will be determined in Clark County, State of Nevada,\nUnited States of America. The parties expressly waive any other jurisdiction to which they might be entitled as a result of\ntheir present or future domicile or for any other reason.\nB.\nCompliance with Laws: In the performance of the Work, Contractor shall comply with all applicable laws, rules and\nregulations, including but not limited to all requirements and provisions of the laws and regulations of the United States, the\nStates and subdivisions thereof in which PGIC or any of PGIC’s subsidiaries or affiliates (regardless of when or how\nformed) carry on their business and all general rules, regulations and ethical standards of national, State and local agencies\nand regulatory and advisory groups having jurisdiction over any business of PGIC or any of PGIC’s subsidiaries or affiliates\n(regardless of when or how formed) as they exist now and as same may be amended from time to time.\nC.\nRegulatory Matters: PGIC, its parent corporation and certain related entities are licensed by or otherwise subject to the\nauthority of various casino and gaming regulatory agencies (“Regulator”). PGIC has adopted a regulatory compliance\npolicy, and Contractor agrees to provide PGIC with such documentation, information and assurances regarding itself, any\nprincipal employees, brokers, agents or others where applicable as may be necessary in order for PGIC to comply with\nPGIC’s regulatory compliance policy and with the request of any Regulator. The foregoing shall be a material obligation of\nContractor hereunder.\nD.\nInjuries: Contractor acknowledges Contractor’s obligation to obtain appropriate insurance coverage for the benefit of\nContractor (and Contractor’s employees, if any). Contractor waives any rights to recovery from PGIC for any injuries that\nContractor (and/or Contractor’s employees) may sustain while performing services under this Agreement and that are a\nresult of the negligence of Contractor or Contractor’s employees.\nE.\nEntire Agreement / Modification: This Agreement, including all Exhibits to this Agreement, constitute the entire\nagreement between the parties relating to this subject matter and supersedes all prior or simultaneous representations,\ndiscussions, negotiations, and agreements, whether written or oral. Any and all amendments, changes, revisions, and/or\nmodifications to this Agreement must be in writing signed by Contractor and PGIC.\n8\nF.\nWaiver: No term or provision hereof will be considered waived by either party, and no breach excused by either party,\nunless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by\neither party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or\nexcuse of any other, different, or subsequent breach by either party.\nG.\nSuccessors and Assigns: Contractor may not assign its rights or obligations arising under this Agreement without PGIC’s\nprior written consent. PGIC may assign its rights and obligations under this Agreement. This Agreement will be for the\nbenefit of PGIC’s successors and assigns, and will be binding on Contractor’s heirs, legal representatives and permitted\nassignees.\nH.\nLegal Fees: If any dispute arises between the parties with respect to the matters covered by this Agreement which leads to a\nproceeding to resolve such dispute, the prevailing party in such proceeding shall be entitled to receive its reasonable\nattorneys’ fees, expert witness fees and out-of-pocket costs incurred in connection with such proceeding, in addition to any\nother relief to which it may be entitled, including but not limited to equitable relief such as restraining orders and\ninjunctions.\nI.\nNotices: All notices, requests and other communications required to be given under this Agreement must be in writing, and\nmust be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the\nparty to whom such notice is required or permitted to be given. Any such notice will be considered to have been given when\nreceived, or if mailed, five (5) business days after it was mailed, as evidenced by the postmark. The mailing address for\nnotice to either party will be the address shown on the face page of this Agreement. Either party may change its mailing\naddress by notice as provided by this Section.\nJ.\nSeverability: Should any term, condition, or provision herein be determined to be unenforceable, such determination shall\nnot impair, limit, or otherwise affect the enforceability of the remaining terms of this Agreement.\nK.\nWaiver. Failure of either party to insist on strict performance shall not constitute a waiver of any of the provisions of this\nAgreement or a waiver of any default of the other party.\nL.\nSurvival: The following provisions shall survive termination of this Agreement: Section IV, Section 5, Section 6, and\nSection 9.\nMIKOHN GAMING\nCORPORATION, a\nNevada corporation, doing business\nas\nMichael F. Dreitzer, an individual\nPROGRESSIVE GAMING\nINTERNATIONAL\nCORPORATION\nBy: /s/ Michael A. Sicuro\nBy: /s/ Michael F. Dreitzer\nName:Michael A. Sicuro\nName:\nMichael F. Dreitzer\nTitle:Executive Vice President & CFO\nDate:\nDate:\n9
+7fe455b9ceccf959c72491a095b0263f.pdf	effective_date jurisdiction party term	EX-99.(E)(3) 2 d334994dex99e3.htm EX-(E)(3)\nExhibit (e)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made as of November 17, 2016, by and between Nimble\nStorage, Inc. a corporation organized under the laws of Delaware (the “Company”), and Hewlett Packard Enterprise Company, a Delaware\ncorporation (“HPE”).\nHPE is evaluating forms of a potential transaction with respect to the Company (a “Transaction”), in connection with which each may\ndisclose certain information, including Confidential 1nformation (as defined below), to the other. As a condition to such information being\nfurnished to each party, its affiliates, its subsidiaries and other individuals and entities controlled, directly or indirectly, by such party\n(“Affiliates”), and the respective directors, employees, consultants, accountants, attorneys and advisors of such party and its Affiliates with\nwhich such party has entered into confidentiality agreements with material terms that are substantially similar to those in this Agreement\n(collectively with such Affiliates, “Associates”), each party agrees such information shall be provided to Associates for the limited purpose of\nevaluating, negotiating or consummating the Transaction, to treat the other party’s Confidential Information in accordance with the provisions of\nthis Agreement and to take or abstain from taking certain other actions, as described in this Agreement. The foregoing definition of Associates\nwho may be furnished confidential information hereby specifically excludes third parties who provide stockholder representation services. A\nparty disclosing Confidential Information hereunder is referred to herein as “the disclosing party” and a party receiving the Confidential\nInformation of a disclosing party hereunder is referred to herein as “the receiving party.”\n1. Definition of Confidential Information; Use and Disclosure.\n“Confidential Information” means any information, technical data or know-how, including, but not limited to, that which relates to\nresearch, product or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other\nstrategic partners, stockholders, markets, software, know-how, developments, inventions, processes, designs, drawings, engineering, hardware\nconfiguration information, marketing, finances, notes, analyses or studies and all tangible and intangible embodiments thereof of any kind\nwhatsoever, whether conveyed in writing or orally by the disclosing party or its Associates to the receiving party or its Associates in connection\nwith the evaluation of a Transaction. The term “Confidential Information” shall be deemed to include those portions of any notes, analyses,\ncompilations, studies, interpretations, memoranda or other documents (regardless of the form thereof) prepared by the receiving party or its\nAssociates which contain, reflect or are based upon, in whole or in part, any information furnished to the receiving party or its Associates\npursuant hereto. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is\nin the possession of the receiving party or its Associates at the time of disclosure, as shown by files and records immediately prior to the time of\ndisclosure; (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action\nof the receiving party or its Associates; (iii) is obtained by the receiving party or its Associates from a source other than the disclosing party or its\nAssociates, which source would not be reasonably expected by the\nreceiving party or its Associates to have any obligation of confidentiality to the disclosing party with respect to such information; (iv) is\napproved, in writing, for release by the disclosing party; or (v) the receiving party or its Associates can document was independently developed\nby the receiving party or its Associates without use of or reference to the disclosing party’s Confidential Information.\nEach of the parties hereto agree not to use the Confidential Information disclosed to it by the other party or its Associates except in\nconnection with preparing a proposal for and any discussions of a Transaction or as otherwise permitted hereunder. Neither party will disclose\nany Confidential Information of the other party to third parties except those of its Associates who are required to have the information in order to\nevaluate and discuss a Transaction. The receiving party shall inform its Associates of the confidential nature of the Confidential Information and\nshall instruct them to treat the information confidentially. The receiving party shall be responsible for any breach of this Agreement by its\nAssociates and agrees, at its sole expense, to take all commercially reasonable measures to restrain its Associates from disclosure or use of the\nConfidential Information in breach of this Agreement. Each party agrees that it will take commercially reasonable measures to protect the\nconfidentiality of, and to avoid having Confidential Information of the other party enter the public domain, become publicly available, or be held\nby persons not authorized hereunder to have such Confidential Information, which measures shall include at least the same degree of care that the\nreceiving party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party in writing of\nany misuse or misappropriation of such Confidential Information of the other party that may come to its attention.\n2. Nonpublicity. The existence and the terms of this Agreement, any Transaction, the fact that any Confidential Information has been\nprovided to the other party, and the existence, nature and status of any discussions between the parties shall be treated as Confidential\nInformation hereunder, shall be maintained in strict confidence by the parties hereto and by their respective Associates and, subject to Section 3\nof this Agreement, shall not be disclosed to any third party.\n3. Required Disclosure. In the event that a receiving party or its Associates is or becomes legally compelled under applicable law,\nregulation or securities exchange listing agreement, or by a competent governmental, administrative or regulatory authority or in a proceeding\nbefore a court, arbitrator or administrative agency, whether or not as a result of a Transaction to which the Company has consented, to disclose\nany portion of the Confidential Information of a disclosing party, that discussions or negotiations between the parties hereto are taking place or\nhave taken place, or any of the terms, conditions or other facts with respect to a Transaction, including the status thereof, the receiving party will,\nand will direct its Associates to, provide the disclosing party with prompt written notice (unless prohibited by law) of such legal compulsion, and\nshall delay disclosure, if and to the extent permitted or practicable, until the disclaiming party has had an opportunity to seek a protective order or\nother appropriate remedy or to waive compliance by the receiving party and/or its Associates with the relevant provisions of this Agreement. In\nthe event that a protective order or other remedy is not obtained in such a proceeding, or the disclosing party fails to waive compliance with the\nrelevant provisions of this Agreement, the receiving party agrees that it will, and will direct its Associates to, disclose only that Confidential\nInformation of the disclosing party which its counsel advises\nis legally required to be disclosed and will exercise commercially reasonable efforts, and will direct its Associates to exercise their commercially\nreasonable efforts, at the request and expense of the disclosing party, to cooperate with the disclosing party in its efforts to obtain reliable\nassurance that confidential treatment will be accorded the Confidential Information which is so disclosed.\n4. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret\nor other intellectual property right, nor shall this Agreement grant either party any rights in or to the other party’s Confidential Information,\nexcept the limited right to review such Confidential Information solely for the purposes of determining whether to enter into, and the undertaking\nof or the advising with respect to, a Transaction.\n5. No Representation of Accuracy.· Each party acknowledges that neither the other party nor any of its Associates has made any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information made available by the other\nparty or its Associates. Each party agrees that, except as set forth in a definitive agreement executed by the parties, neither party nor any of its\nAssociates shall have any liability to the other party or to any of its Associates relating to or resulting from the use of such other party’s\nConfidential Information or any errors therein m omissions therefrom. Only those representations or warranties made in a definitive agreement,\nwhen, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n6. Definitive Agreements. Each party acknowledges and agrees that other than with respect to the matters specifically set forth herein, no\ncontract or agreement providing a Transaction shall be deemed to exist between the parties unless and until a definitive agreement has been\nexecuted and delivered. The parties further agree that each party reserves the right, in its sole discretion, to reject any and all proposals made by\nthe other party or any of its Associates with regard to a Transaction and to terminate discussions or negotiations at any time.\n7. Similar Products. Each disclosing party acknowledges that the receiving party or its Associates may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the disclosing party’s Confidential Information.\nNothing in this Agreement will prohibit the receiving party or its Associates from developing, manufacturing, marketing, selling, servicing or\nsupporting or having developed, manufactured, marketed, sold, serviced or supported for it products, concepts, systems or techniques that are\nsimilar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the disclosing party’s Confidential\nInformation, provided that the receiving party and its Associates do not use any of the disclosing party’s Confidential Information in connection\nwith such activities. Neither party nor its respective Associates shall have any obligation to limit or restrict the assignment of its respective\nemployees or consultants as a result of their having had access to Confidential Information of the other party or its Associates.\n8. Residuals. The receiving party’s employees may use any Residuals for any purpose, provided that this paragraph does not grant or\nimply any license or other right to use any patent, trademark, copyright, mask work right or other intellectual property right. “Residuals” means\ninformation that is retained, as general knowledge and experience, in the\nunaided memory of the receiving party’s employees who have had access to the disclosing party’s Confidential Information within the scope of\nthe receiving party’s obligations under this Agreement, but who no longer have access to such Confidential Information. However, Residuals\ndoes not include any detailed financial or personnel data. The ability to use Residuals shall be narrowly construed, is intended only to alleviate\nthe possibility of inadvertent breach of this Agreement as a result of routine, unaided memory retention, and does not allow the receiving party to\nuse or disclose information known to the receiving party to be Confidential Information that is subject to this Agreement. The memory of an\nemployee of the receiving party is unaided if such employee has not intentionally memorized the Confidential Information or retained notes or\nother aids to such memory,\n9. Commercial Relationship Use. Notwithstanding any obligations or restrictions to the contrary contained herein, if during due diligence\nreview, HPE learns of flaws or problems with Company’s products, software, services or intellectual property rights, the Associates of HPE\nevaluating the potential Transaction may share such information with the Associates of HPE who are responsible for purchasing such products,\nsoftware or services or licensing such intellectual property on behalf of HPE (“Purchasing Associates”). For avoidance of doubt, Purchasing\nAssociates of the receiving party that receive such information agree to be bound by the terms of this Agreement. In the event any Confidential\nInformation is disclosed pursuant to this Section 9, HPE shall notify the Company of any information shared with Associates of HPE within\nfifteen (15) business days after such disclosure.\n10. Termination of Discussions. Following written notice by one party to another of the termination of discussions between the parties,\nupon written request of the disclosing party, the receiving party shall take reasonable steps to instruct all persons involved in the Transaction to\ndestroy all Confidential Information furnished to the receiving party by or on behalf of the disclosing party pursuant to this Agreement.\nNotwithstanding the foregoing, the receiving party and its Associates may retain any Confidential Information to the extent required pursuant to\nthe regulatory compliance or record retention policies of such receiving party or Associate.\n11. Term. The foregoing commitments of either party in this Agreement regarding the confidentiality and non-use of Confidential\nInformation shall survive any termination of discussions between the parties and shall continue for a period of eighteen (18) months following\nthe date of this Agreement.\n12. Attorney-Client Privilege. To the extent that any Confidential Information of the disclosing party may include materials subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or\ngovernmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their\ndesire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine and other\napplicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine,\n13. Notice. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in\nwriting and shall he deemed properly given on the day of delivery (or, if such date is not a business day, on the first business day after delivery) if\ndelivered by hand or email (if submitting by email, substantive discussions to be included only in password protected attachments) (with\nconfirmation of delivery), or on the first business day after being sent by overnight courier or overnight express delivery service (in each case,\nwith confirmation of delivery) to the address set forth beneath the name of such party below (or to such other address as such party shall have\nspecified in a written notice given to the other parties hereto):\nif to HPE:\nHewlett Packard Enterprise Company\n3000 Hanover Street\nPalo Alto, CA 94304\nAttn: General Counsel\nif to the Company:\nNimble Storage, Inc.\n211 River Oaks Parkway\nSan Jose, CA 95134\nAttn: General Counsel\nGC@nimblestorage.com\n14. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the\nState of Delaware applicable to agreements made and to be performed within that state. Each of the parties hereby agrees and irrevocably\nconsents to personal jurisdiction and venue in any federal or state court within Wilmington, Delaware, having subject matter jurisdiction, for the\npurposes of any action, suit or proceeding arising out of or relating to this agreement. To the fullest extent permitted by law, each of the parties\nhereby agrees to waive trial by jury in any action proceeding or counterclaim brought by or on behalf of either party with respect to any matter\nwhatsoever relating to this Agreement.\n15. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto and supersedes all other prior\nagreements and understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof.\nAll modifications of, waivers of and amendments to this letter agreement must be in writing and signed by both parties hereto.\n16. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument. Any counterpart signed by an authorized representative of a party and delivered to the other party by\nemail, facsimile, PDF, or other similar electronic means shall be deemed an original counterpart and duly delivered.\n[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have executed this Mutual Non-Disclosure Agreement as of the day and year first above written.\nNIMBLE STORAGE, INC.\nBy: /s/ Suresh Vasudevan\nName: Suresh Vasudevan\nTitle: CEO\nHEWLETT PACKARD ENTERPRISE\nCOMPANY\nBy: /s/ Vishal Bhagwati\nName: Vishal Bhagwati\nTitle: SVP – Corporate Development	EX-99.(E)(3) 2 d334994dex99e3.htm EX-(E)(3)\nExhibit (e)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made as of November 17, 2016, by and between Nimble\nStorage, Inc. a corporation organized under the laws of Delaware (the “Company”), and Hewlett Packard Enterprise Company, a Delaware\ncorporation (“HPE”).\nHPE is evaluating forms of a potential transaction with respect to the Company (a “Transaction™), in connection with which each may\ndisclose certain information, including Confidential 1nformation (as defined below), to the other. As a condition to such information being\nfurnished to each party, its affiliates, its subsidiaries and other individuals and entities controlled, directly or indirectly, by such party\n(“Affiliates™), and the respective directors, employees, consultants, accountants, attorneys and advisors of such party and its Affiliates with\nwhich such party has entered into confidentiality agreements with material terms that are substantially similar to those in this Agreement\n(collectively with such Affiliates, “Associates”), each party agrees such information shall be provided to Associates for the limited purpose of\nevaluating, negotiating or consummating the Transaction, to treat the other party’s Confidential Information in accordance with the provisions of\nthis Agreement and to take or abstain from taking certain other actions, as described in this Agreement. The foregoing definition of Associates\nwho may be furnished confidential information hereby specifically excludes third parties who provide stockholder representation services. A\nparty disclosing Confidential Information hereunder is referred to herein as “the disclosing party” and a party receiving the Confidential\nInformation of a disclosing party hereunder is referred to herein as “the receiving party.”\n1. Definition of Confidential Information; Use and Disclosure.\n“Confidential Information” means any information, technical data or know-how, including, but not limited to, that which relates to\nresearch, product or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other\nstrategic partners, stockholders, markets, software, know-how, developments, inventions, processes, designs, drawings, engineering, hardware\nconfiguration information, marketing, finances, notes, analyses or studies and all tangible and intangible embodiments thereof of any kind\nwhatsoever, whether conveyed in writing or orally by the disclosing party or its Associates to the receiving party or its Associates in connection\nwith the evaluation of a Transaction. The term “Confidential Information” shall be deemed to include those portions of any notes, analyses,\ncompilations, studies, interpretations, memoranda or other documents (regardless of the form thereof) prepared by the receiving party or its\nAssociates which contain, reflect or are based upon, in whole or in part, any information furnished to the receiving party or its Associates\npursuant hereto. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is\nin the possession of the receiving party or its Associates at the time of disclosure, as shown by files and records immediately prior to the time of\ndisclosure; (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action\nof the receiving party or its Associates; (iii) is obtained by the receiving party or its Associates from a source other than the disclosing party or its\nAssociates, which source would not be reasonably expected by the\nreceiving party or its Associates to have any obligation of confidentiality to the disclosing party with respect to such information; (iv) is\napproved, in writing, for release by the disclosing party; or (v) the receiving party or its Associates can document was independently developed\nby the receiving party or its Associates without use of or reference to the disclosing party’s Confidential Information.\nEach of the parties hereto agree not to use the Confidential Information disclosed to it by the other party or its Associates except in\nconnection with preparing a proposal for and any discussions of a Transaction or as otherwise permitted hereunder. Neither party will disclose\nany Confidential Information of the other party to third parties except those of its Associates who are required to have the information in order to\nevaluate and discuss a Transaction. The receiving party shall inform its Associates of the confidential nature of the Confidential Information and\nshall instruct them to treat the information confidentially. The receiving party shall be responsible for any breach of this Agreement by its\nAssociates and agrees, at its sole expense, to take all commercially reasonable measures to restrain its Associates from disclosure or use of the\nConfidential Information in breach of this Agreement. Each party agrees that it will take commercially reasonable measures to protect the\nconfidentiality of, and to avoid having Confidential Information of the other party enter the public domain, become publicly available, or be held\nby persons not authorized hereunder to have such Confidential Information, which measures shall include at least the same degree of care that the\nreceiving party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party in writing of\nany misuse or misappropriation of such Confidential Information of the other party that may come to its attention.\n2. Nonpublicity. The existence and the terms of this Agreement, any Transaction, the fact that any Confidential Information has been\nprovided to the other party, and the existence, nature and status of any discussions between the parties shall be treated as Confidential\nInformation hereunder, shall be maintained in strict confidence by the parties hereto and by their respective Associates and, subject to Section 3\nof this Agreement, shall not be disclosed to any third party.\n3. Required Disclosure. In the event that a receiving party or its Associates is or becomes legally compelled under applicable law,\nregulation or securities exchange listing agreement, or by a competent governmental, administrative or regulatory authority or in a proceeding\nbefore a court, arbitrator or administrative agency, whether or not as a result of a Transaction to which the Company has consented, to disclose\nany portion of the Confidential Information of a disclosing party, that discussions or negotiations between the parties hereto are taking place or\nhave taken place, or any of the terms, conditions or other facts with respect to a Transaction, including the status thereof, the receiving party will,\nand will direct its Associates to, provide the disclosing party with prompt written notice (unless prohibited by law) of such legal compulsion, and\nshall delay disclosure, if and to the extent permitted or practicable, until the disclaiming party has had an opportunity to seek a protective order or\nother appropriate remedy or to waive compliance by the receiving party and/or its Associates with the relevant provisions of this Agreement. In\nthe event that a protective order or other remedy is not obtained in such a proceeding, or the disclosing party fails to waive compliance with the\nrelevant provisions of this Agreement, the receiving party agrees that it will, and will direct its Associates to, disclose only that Confidential\nInformation of the disclosing party which its counsel advises\nis legally required to be disclosed and will exercise commercially reasonable efforts, and will direct its Associates to exercise their commercially\nreasonable efforts, at the request and expense of the disclosing party, to cooperate with the disclosing party in its efforts to obtain reliable\nassurance that confidential treatment will be accorded the Confidential Information which is so disclosed.\n4. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret\nor other intellectual property right, nor shall this Agreement grant either party any rights in or to the other party’s Confidential Information,\nexcept the limited right to review such Confidential Information solely for the purposes of determining whether to enter into, and the undertaking\nof or the advising with respect to, a Transaction.\n5. No Representation of Accuracy.- Each party acknowledges that neither the other party nor any of its Associates has made any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information made available by the other\nparty or its Associates. Each party agrees that, except as set forth in a definitive agreement executed by the parties, neither party nor any of its\nAssociates shall have any liability to the other party or to any of its Associates relating to or resulting from the use of such other party’s\nConfidential Information or any errors therein m omissions therefrom. Only those representations or warranties made in a definitive agreement,\nwhen, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n6. Definitive Agreements. Each party acknowledges and agrees that other than with respect to the matters specifically set forth herein, no\ncontract or agreement providing a Transaction shall be deemed to exist between the parties unless and until a definitive agreement has been\nexecuted and delivered. The parties further agree that each party reserves the right, in its sole discretion, to reject any and all proposals made by\nthe other party or any of its Associates with regard to a Transaction and to terminate discussions or negotiations at any time.\n7. Similar Products. Each disclosing party acknowledges that the receiving party or its Associates may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the disclosing party’s Confidential Information.\nNothing in this Agreement will prohibit the receiving party or its Associates from developing, manufacturing, marketing, selling, servicing or\nsupporting or having developed, manufactured, marketed, sold, serviced or supported for it products, concepts, systems or techniques that are\nsimilar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the disclosing party’s Confidential\nInformation, provided that the receiving party and its Associates do not use any of the disclosing party’s Confidential Information in connection\nwith such activities. Neither party nor its respective Associates shall have any obligation to limit or restrict the assignment of its respective\nemployees or consultants as a result of their having had access to Confidential Information of the other party or its Associates.\n8. Residuals. The receiving party’s employees may use any Residuals for any purpose, provided that this paragraph does not grant or\nimply any license or other right to use any patent, trademark, copyright, mask work right or other intellectual property right. “Residuals” means\ninformation that is retained, as general knowledge and experience, in the\nunaided memory of the receiving party’s employees who have had access to the disclosing party’s Confidential Information within the scope of\nthe receiving party’s obligations under this Agreement, but who no longer have access to such Confidential Information. However, Residuals\ndoes not include any detailed financial or personnel data. The ability to use Residuals shall be narrowly construed, is intended only to alleviate\nthe possibility of inadvertent breach of this Agreement as a result of routine, unaided memory retention, and does not allow the receiving party to\nuse or disclose information known to the receiving party to be Confidential Information that is subject to this Agreement. The memory of an\nemployee of the receiving party is unaided if such employee has not intentionally memorized the Confidential Information or retained notes or\nother aids to such memory,\n9. Commercial Relationship Use. Notwithstanding any obligations or restrictions to the contrary contained herein, if during due diligence\nreview, HPE learns of flaws or problems with Company’s products, software, services or intellectual property rights, the Associates of HPE\nevaluating the potential Transaction may share such information with the Associates of HPE who are responsible for purchasing such products,\nsoftware or services or licensing such intellectual property on behalf of HPE (“Purchasing Associates”). For avoidance of doubt, Purchasing\nAssociates of the receiving party that receive such information agree to be bound by the terms of this Agreement. In the event any Confidential\nInformation is disclosed pursuant to this Section 9, HPE shall notify the Company of any information shared with Associates of HPE within\nfifteen (15) business days after such disclosure.\n10. Termination of Discussions. Following written notice by one party to another of the termination of discussions between the parties,\nupon written request of the disclosing party, the receiving party shall take reasonable steps to instruct all persons involved in the Transaction to\ndestroy all Confidential Information furnished to the receiving party by or on behalf of the disclosing party pursuant to this Agreement.\nNotwithstanding the foregoing, the receiving party and its Associates may retain any Confidential Information to the extent required pursuant to\nthe regulatory compliance or record retention policies of such receiving party or Associate.\n11. Term. The foregoing commitments of either party in this Agreement regarding the confidentiality and non-use of Confidential\nInformation shall survive any termination of discussions between the parties and shall continue for a period of eighteen (18) months following\nthe date of this Agreement.\n12.  Attorney-Client Privilege. To the extent that any Confidential Information of the disclosing party may include materials subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or\ngovernmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their\ndesire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine and other\napplicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine,\n13. Notice. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in\nwriting and shall he deemed properly given on the day of delivery (or, if such date is not a business day, on the first business day after delivery) if\ndelivered by hand or email (if submitting by email, substantive discussions to be included only in password protected attachments) (with\nconfirmation of delivery), or on the first business day after being sent by overnight courier or overnight express delivery service (in each case,\nwith confirmation of delivery) to the address set forth beneath the name of such party below (or to such other address as such party shall have\nspecified in a written notice given to the other parties hereto):\nif to HPE:\nHewlett Packard Enterprise Company\n3000 Hanover Street\nPalo Alto, CA 94304\nAttn: General Counsel\nif to the Company:\nNimble Storage, Inc.\n211 River Oaks Parkway\nSan Jose, CA 95134\nAttn: General Counsel\nGC@nimblestorage.com\n14. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the\nState of Delaware applicable to agreements made and to be performed within that state. Each of the parties hereby agrees and irrevocably\nconsents to personal jurisdiction and venue in any federal or state court within Wilmington, Delaware, having subject matter jurisdiction, for the\npurposes of any action, suit or proceeding arising out of or relating to this agreement. To the fullest extent permitted by law, each of the parties\nhereby agrees to waive trial by jury in any action proceeding or counterclaim brought by or on behalf of either party with respect to any matter\nwhatsoever relating to this Agreement.\n15. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto and supersedes all other prior\nagreements and understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof.\nAll modifications of, waivers of and amendments to this letter agreement must be in writing and signed by both parties hereto.\n \n16. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument. Any counterpart signed by an authorized representative of a party and delivered to the other party by\nemail, facsimile, PDF, or other similar electronic means shall be deemed an original counterpart and duly delivered.\n \n[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREQF, the parties have executed this Mutual Non-Disclosure Agreement as of the day and year first above written.\nNIMBLE STORAGE, INC.\nBy:  /s/ Suresh Vasudevan\nName: Suresh Vasudevan\nTitle: CEO\nHEWLETT PACKARD ENTERPRISE\nCOMPANY\nBy:  /s/ Vishal Bhagwati\nName: Vishal Bhagwati\nTitle: SVP — Corporate Development	EX-99.(E)(3) 2 d334994dex99e3.htm EX-(E)(3)\nExhibit (e)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this "Agreement") is made as of November 17, 2016, by and between Nimble\nStorage, Inc. a corporation organized under the laws of Delaware (the "Company"), and Hewlett Packard Enterprise Company, a Delaware\ncorporation ("HPE").\nHPE is evaluating forms of a potential transaction with respect to the Company (a "Transaction"), in connection with which each may\ndisclose certain information, including Confidential 1nformation (as defined below), to the other. As a condition to such information being\nfurnished to each party, its affiliates, its subsidiaries and other individuals and entities controlled, directly or indirectly, by such party\n("Affiliates"), and the respective directors, employees, consultants, accountants, attorneys and advisors of such party and its Affiliates with\nwhich such party has entered into confidentiality agreements with material terms that are substantially similar to those in this Agreement\n(collectively with such Affiliates, "Associates"), each party agrees such information shall be provided to Associates for the limited purpose\nof\nevaluating, negotiating or consummating the Transaction, to treat the other party's Confidential Information in accordance with the provisions of\nthis Agreement and to take or abstain from taking certain other actions, as described in this Agreement. The foregoing definition of Associates\nwho may be furnished confidential information hereby specifically excludes third parties who provide stockholder representation services.\nA\nparty disclosing Confidential Information hereunder is referred to herein as "the disclosing party" and a party receiving the Confidentia\nInformation of a disclosing party hereunder is referred to herein as "the receiving party."\n1.\nDefinition of Confidential Information; Use and Disclosure.\n"Confidential Information" means any information, technical data or know-how, including, but not limited to, that which relates to\nresearch, product or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other\nstrategic partners, stockholders, markets, software, know-how, developments, inventions, processes, designs, drawings, engineering, hardware\nconfiguration information, marketing, finances, notes, analyses or studies and all tangible and intangible embodiments thereof of any kind\nwhatsoever, whether conveyed in writing or orally by the disclosing party or its Associates to the receiving party or its Associates in connection\nwith\nthe evaluation of a Transaction. The term "Confidential Information" shall be deemed to include those portions of any notes, analyses,\ncompilations, studies, interpretations, memoranda or other documents (regardless of the form thereof) prepared by the receiving party or its\nAssociates which contain, reflect or are based upon, in whole or in part, any information furnished to the receiving party or its Associates\npursuant hereto. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is\nin the possession of the receiving party or its Associates at the time of disclosure, as shown by files and records immediately prior to the time of\ndisclosure; (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action\nof the receiving party or its Associates; (iii) is obtained by the receiving party or its Associates from a source other than the disclosing party or its\nAssociates, which source would not be reasonably expected by the\nreceiving party or its Associates to have any obligation of confidentiality to the disclosing party with respect to such information; (iv)\nis\napproved, in writing, for release by the disclosing party; or (v) the receiving party or its Associates can document was independently developed\nby the receiving party or its Associates without use of or reference to the disclosing party's Confidential Information.\nEach of the parties hereto agree not to use the Confidential Information disclosed to it by the other party or its Associates except in\nconnection with preparing a proposal for and any discussions of a Transaction or as otherwise permitted hereunder. Neither party will disclose\nany Confidential Information of the other party to third parties except those of its Associates who are required to have the information in order\nto\nevaluate and discuss a Transaction. The receiving party shall inform its Associates of the confidential nature of the Confidential Information\nand\nshall instruct them to treat the information confidentially. The receiving party shall be responsible for any breach of this Agreement by\nits\nAssociates and agrees, at its sole expense, to take all commercially reasonable measures to restrain its Associates from disclosure or use of the\nConfidential Information in breach of this Agreement. Each party agrees that it will take commercially reasonable measures to protect the\nconfidentiality of, and to avoid having Confidential Information of the other party enter the public domain, become publicly available, or be held\nby persons not authorized hereunder to have such Confidentia Information, which measures shall include at least the same degree of care that\nthe\nreceiving party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party in writing of\nany misuse or misappropriation of such Confidential Information of the other party that may come to its attention.\n2. Nonpublicity.. The existence and the terms of this Agreement, any Transaction, the fact that any Confidential Information has been\nprovided to the other party, and the existence, nature and status of any discussions between the parties shall be treated as Confidential\nInformation hereunder, shall be maintained in strict confidence by the parties hereto and by their respective Associates and, subject to Section\n3\nof this Agreement, shall not be disclosed to any third party.\n3. Required Disclosure. In the event that a receiving party or its Associates is or becomes legally compelled under applicable law,\nregulation or securities exchange listing agreement, or by a competent governmental, administrative or regulatory authority or in a proceeding\nbefore a court, arbitrator or administrative agency, whether or not as a result of a Transaction to which the Company has consented, to disclose\nany portion of the Confidential Information of a disclosing party, that discussions or negotiations between the parties hereto are taking place\nor\nhave\ntaken\nplace,\nor\nany of the terms, conditions or other facts with respect to a Transaction, including the status thereof, the receiving party will,\nand will direct its Associates to, provide the disclosing party with prompt written notice (unless prohibited by law) of such legal compulsion, and\nshall delay disclosure, if and to the extent permitted or practicable, until the disclaiming party has had an opportunity to seek a protective order\nor\nother appropriate remedy or to waive compliance by the receiving party and/or its Associates with the relevant provisions of this Agreement.\nIn\nthe event that a protective order or other remedy is not obtained in such a proceeding, or the disclosing party fails to waive compliance with the\nrelevant provisions of this Agreement, the receiving party agrees that it will, and will direct its Associates to, disclose only that Confidential\nInformation of the disclosing party which its counsel advises\nis legally required to be disclosed and will exercise commercially reasonable efforts, and wil direct its Associates to exercise their commercially\nreasonable efforts, at the request and expense of the disclosing party, to cooperate with the disclosing party in its efforts to obtain reliable\nassurance that confidential treatment will be accorded the Confidential Information which is so disclosed.\n4. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret\nor other intellectual property right, nor shall this Agreement grant either party any rights in or to the other party's Confidential Information,\nexcept the limited right to review such Confidential Information solely for the purposes of determining whether to enter into, and the undertaking\nof or the advising with respect to, a Transaction.\n5. No Representation of Accuracy. Each party acknowledges that neither the other party nor any of its Associates has made any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information made available by the other\nparty or its Associates. Each party agrees that, except as set forth in a definitive agreement executed by the parties, neither party nor any of\nits\nAssociates shall have any liability to the other party or to any of its Associates relating to or resulting from the use of such other party's\nConfidential Information or any errors therein m omissions therefrom. Only those representations or warranties made in a definitive agreement,\nwhen, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n6. Definitive Agreements. Each party acknowledges and agrees that other than with respect to the matters specifically set forth herein, no\ncontract or agreement providing a Transaction shall be deemed to exist between the parties unless and until a definitive agreement has been\nexecuted and delivered. The parties further agree that each party reserves the right, in its sole discretion, to reject any and all proposals made\nby\nthe other party or any of its Associates with regard to a Transaction and to terminate discussions or negotiations at any time.\n7. Similar Products. Each disclosing party acknowledges that the receiving party or its Associates may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the disclosing party's Confidential Information.\nNothing in this Agreement will prohibit the receiving party or its Associates from developing, manufacturing, marketing, selling, servicing or\nsupporting or having developed, manufactured, marketed, sold, serviced or supported for it products, concepts, systems or techniques that are\nsimilar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the disclosing party's Confidential\nInformation, provided that the receiving party and its Associates do not use any of the disclosing party's Confidential Information in connection\nwith such activities. Neither party nor its respective Associates shall have any obligation to limit or restrict the assignment of its respective\nemployees or consultants as a result of their having had access to Confidential Information of the other party or its Associates.\n8.\nResiduals. The receiving party's employees may use any Residuals for any purpose, provided that this paragraph does not grant or\nimply any license or other right to use any patent, trademark, copyright, mask work right or other intellectual property right. "Residuals" means\ninformation that is retained, as general knowledge and experience, in the\nunaided memory of the receiving party's employees who have had access to the disclosing party's Confidential Information within the scope of\nthe receiving party's obligations under this Agreement, but who no longer have access to such Confidential Information. However, Residuals\ndoes not include any detailed financial or personnel data. The ability to use Residuals shall be narrowly construed, is intended only to alleviate\nthe possibility of inadvertent breach of this Agreement as a result of routine, unaided memory retention, and does not allow the receiving party\nto\nuse or disclose information known to the receiving party to be Confidential Information that is subject to this Agreement. The memory of an\nemployee of the receiving party is unaided if such employee has not intentionally memorized the Confidential Information or retained notes\nor\nother aids to such memory,\n9. Commercial Relationship Use. Notwithstanding any obligations or restrictions to the contrary contained herein, if during due diligence\nreview, HPE learns of flaws or problems with Company's products, software, services or intellectual property rights, the Associates of HPE\nevaluating the potential Transaction may share such information with the Associates of HPE who are responsible for purchasing such products,\nsoftware or services or licensing such intellectual property on behalf of HPE ("Purchasing Associates"). For avoidance of doubt, Purchasing\nAssociates of the receiving party that receive such information agree to be bound by the terms of this Agreement. In the event any Confidential\nInformation is disclosed pursuant to this Section 9, HPE shall notify the Company of any information shared with Associates of HPE within\nfifteen (15) business days after such disclosure.\n10. Termination of Discussions. Following written notice by one party to another of the termination of discussions between the parties,\nupon written request of the disclosing party, the receiving party shall take reasonable steps to instruct all persons involved in the Transaction to\ndestroy all Confidential Information furnished to the receiving party by or on behalf of the disclosing party pursuant to this Agreement.\nNotwithstanding the foregoing, the receiving party and its Associates may retain any Confidential Information to the extent required pursuant to\nthe regulatory compliance or record retention policies of such receiving party or Associate.\n11. Term. The foregoing commitments of either party in this Agreement regarding the confidentiality and non-use of Confidential\nInformation shall survive any termination of discussions between the parties and shall continue for a period of eighteen (18) months following\nthe date of this Agreement.\n12. Attorney-Client Privilege. To the extent that any Confidential Information of the disclosing party may include materials subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings\nor\ngovernmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their\ndesire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way\nthe\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine and other\napplicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine,\n13. Notice. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in\nwriting and shall he deemed properly given on the day of delivery (or, if such date is not a business day, on the first business day after delivery) if\ndelivered by hand or email (if submitting by email, substantive discussions to be included only in password protected attachments) (with\nconfirmation of delivery), or on the first business day after being sent by overnight courier or overnight express delivery service (in each case,\nwith confirmation of delivery) to the address set forth beneath the name of such party below (or to such other address as such party shall have\nspecified in a written notice given to the other parties hereto):\nif to HPE:\nHewlett Packard Enterprise Company\n3000 Hanover Street\nPalo Alto, CA 94304\nAttn: General Counsel\nif to the Company:\nNimble Storage, Inc.\n211 River Oaks Parkway\nSan Jose, CA 95134\nAttn: General Counsel\nGC@nimblestorage.com\n14. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the\nState of Delaware applicable to agreements made and to be performed within that state. Each of the parties hereby agrees and irrevocably\nconsents to personal jurisdiction and venue in any federal or state court within Wilmington, Delaware, having subject matter jurisdiction, for the\npurposes of any action, suit or proceeding arising out of or relating to this agreement. To the fullest extent permitted by law, each of the parties\nhereby agrees to waive trial by jury in any action proceeding or counterclaim brought by or on behalf of either party with respect to any matter\nwhatsoever relating to this Agreement.\n15. Entire Agreement This Agreement constitutes the entire agreement among the parties hereto and supersedes all other prior\nagreements and understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof.\nAll modifications of, waivers of and amendments to this letter agreement must be in writing and signed by both parties hereto.\n16. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument. Any counterpart signed by an authorized representative of a party and delivered to the other party by\nemail, facsimile, PDF, or other similar electronic means shall be deemed an original counterpart and duly delivered.\n[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have executed this Mutual Non-Disclosure Agreement as of the day and year first above written.\nNIMBLE STORAGE, INC.\nBy:\n/s/ Suresh Vasudevan\nName: Suresh Vasudevan\nTitle: CEO\nHEWLETT PACKARD ENTERPRISE\nCOMPANY\nBy:\n/s/ Vishal Bhagwati\nName: Vishal Bhagwati\nTitle: SVP - Corporate Development	EX-99.(E)(3) 2 d334994dex99e3.htm EX-(E)(3)\nExhibit (e)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made as of November 17, 2016, by and between Nimble\nStorage, Inc. a corporation organized under the laws of Delaware (the “Company”), and Hewlett Packard Enterprise Company, a Delaware\ncorporation (“HPE”).\nHPE is evaluating forms of a potential transaction with respect to the Company (a “Transaction”), in connection with which each may\ndisclose certain information, including Confidential 1nformation (as defined below), to the other. As a condition to such information being\nfurnished to each party, its affiliates, its subsidiaries and other individuals and entities controlled, directly or indirectly, by such party\n(“Affiliates”), and the respective directors, employees, consultants, accountants, attorneys and advisors of such party and its Affiliates with\nwhich such party has entered into confidentiality agreements with material terms that are substantially similar to those in this Agreement\n(collectively with such Affiliates, “Associates”), each party agrees such information shall be provided to Associates for the limited purpose of\nevaluating, negotiating or consummating the Transaction, to treat the other party’s Confidential Information in accordance with the provisions of\nthis Agreement and to take or abstain from taking certain other actions, as described in this Agreement. The foregoing definition of Associates\nwho may be furnished confidential information hereby specifically excludes third parties who provide stockholder representation services. A\nparty disclosing Confidential Information hereunder is referred to herein as “the disclosing party” and a party receiving the Confidential\nInformation of a disclosing party hereunder is referred to herein as “the receiving party.”\n1. Definition of Confidential Information; Use and Disclosure.\n“Confidential Information” means any information, technical data or know-how, including, but not limited to, that which relates to\nresearch, product or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other\nstrategic partners, stockholders, markets, software, know-how, developments, inventions, processes, designs, drawings, engineering, hardware\nconfiguration information, marketing, finances, notes, analyses or studies and all tangible and intangible embodiments thereof of any kind\nwhatsoever, whether conveyed in writing or orally by the disclosing party or its Associates to the receiving party or its Associates in connection\nwith the evaluation of a Transaction. The term “Confidential Information” shall be deemed to include those portions of any notes, analyses,\ncompilations, studies, interpretations, memoranda or other documents (regardless of the form thereof) prepared by the receiving party or its\nAssociates which contain, reflect or are based upon, in whole or in part, any information furnished to the receiving party or its Associates\npursuant hereto. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is\nin the possession of the receiving party or its Associates at the time of disclosure, as shown by files and records immediately prior to the time of\ndisclosure; (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action\nof the receiving party or its Associates; (iii) is obtained by the receiving party or its Associates from a source other than the disclosing party or its\nAssociates, which source would not be reasonably expected by the\nreceiving party or its Associates to have any obligation of confidentiality to the disclosing party with respect to such information; (iv) is\napproved, in writing, for release by the disclosing party; or (v) the receiving party or its Associates can document was independently developed\nby the receiving party or its Associates without use of or reference to the disclosing party’s Confidential Information.\nEach of the parties hereto agree not to use the Confidential Information disclosed to it by the other party or its Associates except in\nconnection with preparing a proposal for and any discussions of a Transaction or as otherwise permitted hereunder. Neither party will disclose\nany Confidential Information of the other party to third parties except those of its Associates who are required to have the information in order to\nevaluate and discuss a Transaction. The receiving party shall inform its Associates of the confidential nature of the Confidential Information and\nshall instruct them to treat the information confidentially. The receiving party shall be responsible for any breach of this Agreement by its\nAssociates and agrees, at its sole expense, to take all commercially reasonable measures to restrain its Associates from disclosure or use of the\nConfidential Information in breach of this Agreement. Each party agrees that it will take commercially reasonable measures to protect the\nconfidentiality of, and to avoid having Confidential Information of the other party enter the public domain, become publicly available, or be held\nby persons not authorized hereunder to have such Confidential Information, which measures shall include at least the same degree of care that the\nreceiving party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party in writing of\nany misuse or misappropriation of such Confidential Information of the other party that may come to its attention.\n2. Nonpublicity. The existence and the terms of this Agreement, any Transaction, the fact that any Confidential Information has been\nprovided to the other party, and the existence, nature and status of any discussions between the parties shall be treated as Confidential\nInformation hereunder, shall be maintained in strict confidence by the parties hereto and by their respective Associates and, subject to Section 3\nof this Agreement, shall not be disclosed to any third party.\n3. Required Disclosure. In the event that a receiving party or its Associates is or becomes legally compelled under applicable law,\nregulation or securities exchange listing agreement, or by a competent governmental, administrative or regulatory authority or in a proceeding\nbefore a court, arbitrator or administrative agency, whether or not as a result of a Transaction to which the Company has consented, to disclose\nany portion of the Confidential Information of a disclosing party, that discussions or negotiations between the parties hereto are taking place or\nhave taken place, or any of the terms, conditions or other facts with respect to a Transaction, including the status thereof, the receiving party will,\nand will direct its Associates to, provide the disclosing party with prompt written notice (unless prohibited by law) of such legal compulsion, and\nshall delay disclosure, if and to the extent permitted or practicable, until the disclaiming party has had an opportunity to seek a protective order or\nother appropriate remedy or to waive compliance by the receiving party and/or its Associates with the relevant provisions of this Agreement. In\nthe event that a protective order or other remedy is not obtained in such a proceeding, or the disclosing party fails to waive compliance with the\nrelevant provisions of this Agreement, the receiving party agrees that it will, and will direct its Associates to, disclose only that Confidential\nInformation of the disclosing party which its counsel advises\nis legally required to be disclosed and will exercise commercially reasonable efforts, and will direct its Associates to exercise their commercially\nreasonable efforts, at the request and expense of the disclosing party, to cooperate with the disclosing party in its efforts to obtain reliable\nassurance that confidential treatment will be accorded the Confidential Information which is so disclosed.\n4. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret\nor other intellectual property right, nor shall this Agreement grant either party any rights in or to the other party’s Confidential Information,\nexcept the limited right to review such Confidential Information solely for the purposes of determining whether to enter into, and the undertaking\nof or the advising with respect to, a Transaction.\n5. No Representation of Accuracy.· Each party acknowledges that neither the other party nor any of its Associates has made any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information made available by the other\nparty or its Associates. Each party agrees that, except as set forth in a definitive agreement executed by the parties, neither party nor any of its\nAssociates shall have any liability to the other party or to any of its Associates relating to or resulting from the use of such other party’s\nConfidential Information or any errors therein m omissions therefrom. Only those representations or warranties made in a definitive agreement,\nwhen, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n6. Definitive Agreements. Each party acknowledges and agrees that other than with respect to the matters specifically set forth herein, no\ncontract or agreement providing a Transaction shall be deemed to exist between the parties unless and until a definitive agreement has been\nexecuted and delivered. The parties further agree that each party reserves the right, in its sole discretion, to reject any and all proposals made by\nthe other party or any of its Associates with regard to a Transaction and to terminate discussions or negotiations at any time.\n7. Similar Products. Each disclosing party acknowledges that the receiving party or its Associates may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the disclosing party’s Confidential Information.\nNothing in this Agreement will prohibit the receiving party or its Associates from developing, manufacturing, marketing, selling, servicing or\nsupporting or having developed, manufactured, marketed, sold, serviced or supported for it products, concepts, systems or techniques that are\nsimilar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the disclosing party’s Confidential\nInformation, provided that the receiving party and its Associates do not use any of the disclosing party’s Confidential Information in connection\nwith such activities. Neither party nor its respective Associates shall have any obligation to limit or restrict the assignment of its respective\nemployees or consultants as a result of their having had access to Confidential Information of the other party or its Associates.\n8. Residuals. The receiving party’s employees may use any Residuals for any purpose, provided that this paragraph does not grant or\nimply any license or other right to use any patent, trademark, copyright, mask work right or other intellectual property right. “Residuals” means\ninformation that is retained, as general knowledge and experience, in the\nunaided memory of the receiving party’s employees who have had access to the disclosing party’s Confidential Information within the scope of\nthe receiving party’s obligations under this Agreement, but who no longer have access to such Confidential Information. However, Residuals\ndoes not include any detailed financial or personnel data. The ability to use Residuals shall be narrowly construed, is intended only to alleviate\nthe possibility of inadvertent breach of this Agreement as a result of routine, unaided memory retention, and does not allow the receiving party to\nuse or disclose information known to the receiving party to be Confidential Information that is subject to this Agreement. The memory of an\nemployee of the receiving party is unaided if such employee has not intentionally memorized the Confidential Information or retained notes or\nother aids to such memory,\n9. Commercial Relationship Use. Notwithstanding any obligations or restrictions to the contrary contained herein, if during due diligence\nreview, HPE learns of flaws or problems with Company’s products, software, services or intellectual property rights, the Associates of HPE\nevaluating the potential Transaction may share such information with the Associates of HPE who are responsible for purchasing such products,\nsoftware or services or licensing such intellectual property on behalf of HPE (“Purchasing Associates”). For avoidance of doubt, Purchasing\nAssociates of the receiving party that receive such information agree to be bound by the terms of this Agreement. In the event any Confidential\nInformation is disclosed pursuant to this Section 9, HPE shall notify the Company of any information shared with Associates of HPE within\nfifteen (15) business days after such disclosure.\n10. Termination of Discussions. Following written notice by one party to another of the termination of discussions between the parties,\nupon written request of the disclosing party, the receiving party shall take reasonable steps to instruct all persons involved in the Transaction to\ndestroy all Confidential Information furnished to the receiving party by or on behalf of the disclosing party pursuant to this Agreement.\nNotwithstanding the foregoing, the receiving party and its Associates may retain any Confidential Information to the extent required pursuant to\nthe regulatory compliance or record retention policies of such receiving party or Associate.\n11. Term. The foregoing commitments of either party in this Agreement regarding the confidentiality and non-use of Confidential\nInformation shall survive any termination of discussions between the parties and shall continue for a period of eighteen (18) months following\nthe date of this Agreement.\n12. Attorney-Client Privilege. To the extent that any Confidential Information of the disclosing party may include materials subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or\ngovernmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their\ndesire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine and other\napplicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine,\n13. Notice. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in\nwriting and shall he deemed properly given on the day of delivery (or, if such date is not a business day, on the first business day after delivery) if\ndelivered by hand or email (if submitting by email, substantive discussions to be included only in password protected attachments) (with\nconfirmation of delivery), or on the first business day after being sent by overnight courier or overnight express delivery service (in each case,\nwith confirmation of delivery) to the address set forth beneath the name of such party below (or to such other address as such party shall have\nspecified in a written notice given to the other parties hereto):\nif to HPE:\nHewlett Packard Enterprise Company\n3000 Hanover Street\nPalo Alto, CA 94304\nAttn: General Counsel\nif to the Company:\nNimble Storage, Inc.\n211 River Oaks Parkway\nSan Jose, CA 95134\nAttn: General Counsel\nGC@nimblestorage.com\n14. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the\nState of Delaware applicable to agreements made and to be performed within that state. Each of the parties hereby agrees and irrevocably\nconsents to personal jurisdiction and venue in any federal or state court within Wilmington, Delaware, having subject matter jurisdiction, for the\npurposes of any action, suit or proceeding arising out of or relating to this agreement. To the fullest extent permitted by law, each of the parties\nhereby agrees to waive trial by jury in any action proceeding or counterclaim brought by or on behalf of either party with respect to any matter\nwhatsoever relating to this Agreement.\n15. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto and supersedes all other prior\nagreements and understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof.\nAll modifications of, waivers of and amendments to this letter agreement must be in writing and signed by both parties hereto.\n16. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument. Any counterpart signed by an authorized representative of a party and delivered to the other party by\nemail, facsimile, PDF, or other similar electronic means shall be deemed an original counterpart and duly delivered.\n[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have executed this Mutual Non-Disclosure Agreement as of the day and year first above written.\nNIMBLE STORAGE, INC.\nBy: /s/ Suresh Vasudevan\nName: Suresh Vasudevan\nTitle: CEO\nHEWLETT PACKARD ENTERPRISE\nCOMPANY\nBy: /s/ Vishal Bhagwati\nName: Vishal Bhagwati\nTitle: SVP – Corporate Development
+82f5ce1881d8ab5988704c205b98b498.pdf	jurisdiction party	EXHIBIT B\nCONFIDENTIAL INFORMATION, ASSIGNMENT OF RIGHTS,\nNON-SOLICITATION AND NON-COMPETITION AGREEMENT\nIn consideration of my continued employment with Amber Road, Inc., or any of its subsidiaries, in connection with the\nperformance of my duties as an employee of the Amber Road, Inc. or any of its subsidiaries (“Company”) (hereinafter, my\n"Employment"), I hereby agree and acknowledge effective as of May __, 2016 that:\nConfidential Information\n1.\nAs a result of my Employment, I may come to possess Confidential Information, and the Company has informed me that it\nwill not retain me unless I agree to the terms of this Agreement and abide by them. As used in this Agreement, "Confidential\nInformation" includes, without limitation, information, whether or not in tangible form, which has not been publicly disclosed\nregarding Company, any of Company's customers, remarketing and/or support agreements made between Company and its\nbusiness partners which disclose product data, commission rates, territories, quotas, and terms of licenses; the identities and\nlocations of vendors and consultants furnishing materials and services to Company and the terms of such arrangements\n(including prices) negotiated by Company with such vendors and consultants; data relating to sales and license volumes, by\ncustomer, by location or by product; data relating to consulting agreements between Company and its customers which\ndisclose billing rates, budgets, deliverables, time schedules and staff assignments; customer and product licensee and\nprospective product licensee lists; financial information that has not been released to the public by Company; employee lists\nof Company; future business plans, licensing strategies, advertising campaigns and the like; data provided to you which is\nmarked as confidential or proprietary to Company, one of Company’s customers or business partners; proposed or actual\nacquisitions of stock or assets by Company; and/or any other information concerning or used in Company's business, its\nmanner of operations, its plan, processes or other data.\nThe definition of Confidential Information also shall include “Trade Secrets”, which are defined as the whole or any portion\nor phase of any scientific or technical information, design, process, procedure, formula, data-processing technique, computer\nprogram, or improvement that is valuable and secret (in the sense that it is not generally known to competitors of Company\nor competitors of its business partners). To the extent consistent with the foregoing, Trade Secrets include, without\nlimitation, the specialized information and technology embodied in computer program material, including source and object\ncode, system and user documentation, and program and system designs that provide Company or its business partners with\nan advantage over their competitors in the development, sales, implementation and support of their application software and\nproducts.\nI acknowledge that Company has developed its Confidential Information through its own efforts and at great expense. I\nfurther acknowledge that Company has a legitimate interest in protecting its Confidential Information.\n2.\nI will not at any time, except as required by my duties at Company, duplicate, remove, transfer, use, disclose or communicate,\nor knowingly allow any other person to duplicate, remove, transfer, use, disclose or communicate, any Confidential\nInformation. I will safeguard all Confidential Information at all times so that it is not exposed to, or taken by, unauthorized\npersons and will exercise my best efforts to assure its safekeeping. I understand that the maintenance of the confidentiality of\nConfidential Information is material and essential to Company and its disclosure would have a severe adverse effect on the\nconduct of Company's business, and Company's competitive position and goodwill.\n3.\nUpon termination of my Employment, whether voluntary or involuntary, or upon Company's request at any time during the\nterm of my Employment, I will deliver to Company all written and other materials which contain or relate to Confidential\nInformation, whether formal or informal, whether prepared by me or by\nothers and whether required by my employment or for my personal use, including, without limitation, all documents, notes,\ncomputer programs and data prepared for or stored in or obtained from any automated information system, all of which\nmaterials shall be and remain the property of Company. In addition, I shall also provide any information, such as passwords\nor codes, necessary to allow Company to fully utilize its property.\n4.\nI will not make any unauthorized disclosure of trade secrets or confidential information to any third person, including any\nsuch information which is subject to a confidentiality agreement between Company and such third person, to which I gain\naccess as a result of my Employment.\n5.\nMy obligations under this Agreement will remain in effect both during the term of my Employment and thereafter, whatever\nthe reason for termination of my Employment, and shall survive any termination of this Agreement.\nAssignment of Right\n6.\n(a) All intellectual property in whatever form including, without limitation, inventions, discoveries, ideas,\ncomputer programs, programs based upon or developed from computer programs, improvements, codes,\nmethods, algorithms, trade secrets, know-how, system documentation, technical data, drawings, flow\ncharts, prototypes, design specifications, and any other documentation, notes and materials related to the\nforegoing (whether or not patentable or copyrightable) that are conceived or made by me, either alone or\nwith others, during the course of or derived from my Employment by Company and in any way related to\nmy Employment or to any business in which Company is engaged at any time during the term of my\nEmployment or (if it should reasonably be known by me) is considering in engaging ("Discoveries"), shall\nbe deemed to be "works made for hire" if permitted by applicable law and shall belong to Company.\n(b) I will promptly disclose all Discoveries to Company.\n(c) To the extent that any Discovery does not constitute a work made for hire pursuant to applicable law, I hereby\ntransfer, grant, convey, assign and relinquish exclusively to Company all of my rights to, title to and interest in all\nDiscoveries, in perpetuity (or for the longest period of time otherwise permitted by law), including:\n(i) all of my rights, title, interest, and benefit (including the right to make, use, or sell under patent law; to copy,\nadapt, distribute, display, and perform under copyright law; and to use and disclose under trade secret law) in\nand to all United States and foreign patents and patent applications, patent license rights, patentable inventions,\ntrade secrets, trademarks, service marks, trade names (including, in the case of trademarks, service marks and\ntrade names, all goodwill pertaining thereto), copyrights, technology licenses, know-how, confidential\ninformation, shop rights, and all other intellectual property rights owned or claimed or acquired in the future by\nme as embodied in the Discoveries; and\n(ii) all of my rights, title, interest, and benefit and all powers and privileges, in, to, and under all technical data,\ndrawings, prototypes, engineering files, system documentation, flow charts, and design specifications\ndeveloped by, owned, or acquired previously or in the future by me in connection with the development of the\nprogramming, inventions, processes, and apparatus entailed by the Discoveries.\n(d) I will execute and deliver, from time to time after the date hereof, upon Company's request, such further conveyance\ninstruments, and take such further actions, as may be necessary or desirable to evidence more fully the transfer of\nownership of all the Discoveries to Company, or the original ownership of all the Discoveries on the part of Company,\nto the fullest extent possible. I therefore agree to:\n2\n(i) execute, acknowledge, and deliver any affidavits or documents of assignment and conveyance regarding the\nDiscoveries.\n(ii) provide testimony in connection with any proceeding affecting the right, title, interest, or benefit of Company in\nor to the Discoveries.\n(iii) perform any other acts deemed necessary to carry out the intent of this Agreement including, without limitation,\nassisting in the application, perfection, maintenance and enforcement of the Discoveries and all rights relating\nthereto.\n(e) In furtherance of this Agreement, I hereby acknowledge that, from this date forward, or a previous date if rights were\nearlier transferred, Company has succeeded to all of my rights, title, and standing to:\n(i) receive all rights and benefits pertaining to the Discoveries.\n(ii) institute and prosecute all suits and proceedings and take all actions that Company, in its sole discretion may\ndeem necessary or proper to collect, assert, or enforce any claim, right, or title of any kind in and to any and all\nof the Discoveries.\n(iii) defend and compromise any and all such actions, suits, or proceedings relating to such transferred and assigned\nrights, title, interest, and benefits, and do all other such acts and things in relation thereto as Company, in its\nsole discretion, deems advisable.\n(f) Upon termination of my Employment, I will immediately surrender to Company all materials and work product in my\npossession or within my control (including all copies thereof) relating in any way to the Discoveries.\n(g) To effectuate the terms of this paragraph 6, I hereby name and irrevocably constitute and appoint Company, with the\nfull power of substitution therein, as my true and lawful attorney-in-fact to exercise the rights assigned hereby.\n(h) I represent and warrant that no consents of any other parties are necessary or appropriate under any agreements\nconcerning any of the Discoveries in order for the transfer and assignment of any of the Discoveries under this\nAgreement to be legally effective.\n(i) I represent and warrant that, to the best of my knowledge, upon consummation of this Agreement, Company will have\ngood and marketable title to the Discoveries, free and clear of any and all liens, mortgages, encumbrances, pledges,\nsecurity interests, or charges of any nature whatsoever.\n7.\nI have listed on the Schedule attached to this Agreement all inventions, if any, conceived or made by me prior to my\nEmployment by Company and which are to be excluded from this Agreement, as well as any restrictions on any work for\nCompany or any obligations under this Agreement arising from any prior employment or other agreement. I am not required\nto list on the Schedule any inventions conceived or made by me prior to my Employment by Company that (i) are unrelated\nto the business, operations, services or products of Company or (ii) are solely related to my personal hobbies and not to the\nbusiness, operations, service or products of Company.\nNon-Solicitation\n8.\nI agree that all Company relationships, whether or not contractual, including but not limited to, relationships with employees,\ncontractors, consultants, partners (collectively “Relationships”) are the sole property of Company. I agree that, during and\nafter my Employment with Company, unless Company provides written consent, I will not directly or indirectly provide\ninformation, including but not limited to,\n3\nemployee lists, resumes, independent contractor agreements, employment information and contact information, to other\nentities or individuals. I agree not to interfere with these Relationships by hiring or soliciting for hire individuals or entities,\ndirectly or indirectly, to work with or for any person or entity external to Company without the written consent of Company,\nduring, and for a period of 24 months after the termination of, my Employment with Company.\n9.\nI agree that all Company relationships with customers, partners, resellers, vendors and suppliers and all information, whether\nor not in writing, are and shall be the exclusive property of Company (collectively "Customer Information"). Customer\nInformation shall not be used outside the duties of my Employment with Company without the written consent of Company,\neither during or after the termination of my Employment with Company.\nNon-Competition\n10.\n(a) I further agree that, during the term of my Employment with Company, and for a period of twenty-four months\nfollowing the termination (whether voluntary or involuntary) of such Employment, I will not engage in any\ncapacity (including without limitation, as an employee, officer, director, consultant or shareholder (other\nthan as an owner of 1% or less of the outstanding shares of any publicly-traded company), in any\nCompeting Business in any geographical area in which Company (or any of Company’s affiliates) transacts\nsuch business. For purposes of this Agreement a “Competing Business” means any business engaged in\nproviding services similar to Company’s or in the marketing, sale, development and distribution of products\nthat are similar to Company's.\n(b) The covenants contained in this Section 10 shall be enforced to the fullest extent permissible under the laws of each\njurisdiction in which enforcement is sought. Accordingly, I agree that if any of the provisions of this Section 10 shall\nbe adjudicated to be invalid or unenforceable for any reason whatsoever, said provision shall be construed (only with\nrespect to the operation thereof in the particular jurisdiction in which such adjudication is made) by limiting and\nreducing it so as to be enforceable to the fullest extent permissible, without invalidating the remaining provisions of\nthis Agreement or affecting the validity or enforceability of said provision in any other jurisdiction.\n11. Breach by me of any provision of this Agreement will cause Company irreparable injury and damage for which money\ndamages may not be adequate. In addition to all other remedies that are available to it, Company shall be entitled to\npreliminary and permanent injunctive and equitable relief to prevent or remedy a breach of this Agreement by me.\n12. This Agreement:\n(a) shall bind my heirs, executors, administrators, legal representatives and assigns, and supersedes any prior agreements\nconcerning Confidential Information executed by me with or in favor of Company, if any.\n(b) constitutes the entire understanding between Company and me concerning Confidential Information and no waiver or\namendment of any provision of this Agreement shall be valid or effective unless in writing and signed by the party\nagainst whom enforcement thereof is sought.\n(c) shall be enforceable by Company or any of its successors or assigns.\n(d) shall be enforced and construed in accordance with the laws of the State of New Jersey, without giving effect to the\nchoice of laws principles of New Jersey that would result in the application of the laws of any other jurisdiction.\n4\n13. Should any part of this Agreement for any reason be declared by any court of competent jurisdiction to be invalid, that\ndecision shall not affect the validity of the remaining portion, which shall continue in full force and effect as if this\nAgreement had been executed with the invalid portion eliminated, provided, however, that this Agreement shall be\ninterpreted to carry out to the greatest extent possible the intent of the parties and to provide to Company substantially the\nsame benefits as Company would have received under this Agreement if such invalid part of this Agreement had been\nenforceable.\n14. I represent that I am not a party to, or bound by, any confidentiality agreements, non-compete agreements, restrictive\ncovenants, non-solicitation agreements, invention and assignment agreements, or any other agreements or obligations to any\nformer employer or other entity that will prevent me from performing, or impede me in performance of service for Company.\nI also represent that I have disclosed to Company all contracts or agreements that could prevent me from carrying out my\nresponsibilities for Company. I further acknowledge that I have not and will not take or remove from my prior employment\nthe originals or copies of any documents maintained as confidential or proprietary information by my prior employer, and that\nI have not and will not disclose any confidential or proprietary information of my prior employer. Therefore, I am “free and\nclear” to be employed by Company. I acknowledge that Company is relying on my representation in making its offer of\nemployment, in employing me, or in continuing my employment with Company. I further agree not to enter into any\nagreement either written or oral in conflict with my Employment with Company.\n15. I further agree that this Agreement does not constitute a contract of employment, and that I have the right to resign and\nCompany has the right to terminate my employment at any time, for any reason, with or without cause, subject to the\nprovisions of any written employment agreement between Company and me. I hereby acknowledge that I have read this\nAgreement, understand it and agree to be bound by its restrictions.\nJAMES W.\nPREUNINGER\nMay __, 2016\n(Date\nSigned)\nACCEPTED AND DATED AS OF MAY __, 2016\nAMBER ROAD, INC.\nBy: ___________________________\nName:\nTitle:\n5	EXHIBIT B\nCONFIDENTIAL INFORMATION, ASSIGNMENT OF RIG HTS,\nNON-SOLICITATION AND NON-COMPETITION AG REEMENT\nIn consideration of my continued employment with Amber Road, Inc., or any of its subsidiaries, in connection with the\nperformance of my duties as an employee of the Amber Road, Inc. or any of its subsidiaries (”Company”) (hereinafter, my\n"Employment"), I hereby agree and acknowledge effective as of May __, 2016 that:\nC onfidential Information\n1. As a result of my Employment, I may come to possess Confidential Information, and the Company has informed me that it\nwill not retain me unless I agree to the terms of this Agreement and abide by them. As used in this Agreement, "Confidential\nInformation" includes, without limitation, information, whether or not in tangible form, which has not been publicly disclosed\nregarding Company, any of Company's customers, remarketing and/or support agreements made between Company and its\nbusiness partners which disclose product data, commission rates, territories, quotas, and terms of licenses; the identities and\nlocations of vendors and consultants furnishing materials and services to Company and the terms of such arrangements\n(including prices) negotiated by Company with such vendors and consultants; data relating to sales and license volumes, by\ncustomer, by location or by product; data relating to consulting agreements between Company and its customers which\ndisclose billing rates, budgets, deliverables, time schedules and staff assignments; customer and product licensee and\nprospective product licensee lists; financial information that has not been released to the public by Company; employee lists\nof Company; future business plans, licensing strategies, advertising campaigns and the like; data provided to you which is\nmarked as confidential or proprietary to Company, one of Company's customers or business partners; proposed or actual\nacquisitions of stock or assets by Company; and/or any other information concerning or used in Company's business, its\nmanner of operations, its plan, processes or other data.\nThe definition of Confidential Information also shall include ”Trade Secrets”, which are defined as the whole or any portion\nor phase of any scientific or technical information, design, process, procedure, formula, data-processing technique, computer\nprogram, or improvement that is valuable and secret (in the sense that it is not generally known to competitors of Company\nor competitors of its business partners). To the extent consistent with the foregoing, Trade Secrets include, without\nlimitation, the specialized information and technology embodied in computer program material, including source and object\ncode, system and user documentation, and program and system designs that provide Company or its business partners with\nan advantage over their competitors in the development, sales, implementation and support of their application software and\nproducts.\nI acknowledge that Company has developed its Confidential Information through its own efforts and at great expense. I\nfurther acknowledge that Company has a legitimate interest in protecting its Confidential Information.\n2. I will not at any time, except as required by my duties at Company, duplicate, remove, transfer, use, disclose or communicate,\nor knowingly allow any other person to duplicate, remove, transfer, use, disclose or communicate, any Confidential\nInformation. I will safeguard all Confidential Information at all times so that it is not exposed to, or taken by, unauthorized\npersons and will exercise my best efforts to assure its safekeeping. I understand that the maintenance of the confidentiality of\nConfidential Information is material and essential to Company and its disclosure would have a severe adverse effect on the\nconduct of Company's business, and Company's competitive position and goodwill.\n3. Upon termination of my Employment, whether voluntary or involuntary, or upon Company's request at any time during the\nterm of my Employment, I will deliver to Company all written and other materials which contain or relate to Confidential\nInformation, whether formal or informal, whether prepared by me or by\nothers and whether required by my employment or for my personal use, including, without limitation, all documents, notes,\ncomputer programs and data prepared for or stored in or obtained from any automated information system, all of which\nmaterials shall be and remain the property of Company. In addition, I shall also provide any information, such as passwords\nor codes, necessary to allow Company to fully utilize its property.\n4. I will not make any unauthorized disclosure of trade secrets or confidential information to any third person, including any\nsuch information which is subject to a confidentiality agreement between Company and such third person, to which I gain\naccess as a result of my Employment.\n5. My obligations under this Agreement will remain in effect both during the term of my Employment and thereafter, whatever\nthe reason for termination of my Employment, and shall survive any termination of this Agreement.\nAssignment of Right\n6. (a) All intellectual property in whatever form including, without limitation, inventions, discoveries, ideas,\ncomputer programs, programs based upon or developed from computer programs, improvements, codes,\nmethods, algorithms, trade secrets, know-how, system documentation, technical data, drawings, flow\ncharts, prototypes, design specifications, and any other documentation, notes and materials related to the\nforegoing (whether or not patentable or copyrightable) that are conceived or made by me, either alone or\nwith others, during the course of or derived from my Employment by Company and in any way related to\nmy Employment or to any business in which Company is engaged at any time during the term of my\nEmployment or (if it should reasonably be known by me) is considering in engaging ("Discoveries"), shall\nbe deemed to be "works made for hire" if permitted by applicable law and shall belong to Company.\n(b) I will promptly disclose all Discoveries to Company.\n(c) To the extent that any Discovery does not constitute a work made for hire pursuant to applicable law, I hereby\ntransfer, grant, convey, assign and relinquish exclusively to Company all of my rights to, title to and interest in all\nDiscoveries, in perpetuity (or for the longest period of time otherwise permitted by law), including:\n(i) all of my rights, title, interest, and benefit (including the right to make, use, or sell under patent law; to copy,\nadapt, distribute, display, and perform under copyright law; and to use and disclose under trade secret law) in\nand to all United States and foreign patents and patent applications, patent license rights, patentable inventions,\ntrade secrets, trademarks, service marks, trade names (including, in the case of trademarks, service marks and\ntrade names, all goodwill pertaining thereto), copyrights, technology licenses, know-how, confidential\ninformation, shop rights, and all other intellectual property rights owned or claimed or acquired in the future by\nme as embodied in the Discoveries; and\nA\n,_‘.\n,_‘.\nV\nall of my rights, title, interest, and benefit and all powers and privileges, in, to, and under all technical data,\ndrawings, prototypes, engineering files, system documentation, flow charts, and design specifications\ndeveloped by, owned, or acquired previously or in the future by me in connection with the development of the\nprogramming, inventions, processes, and apparatus entailed by the Discoveries.\nI will execute and deliver, from time to time after the date hereof, upon Company's request, such further conveyance\ninstruments, and take such further actions, as may be necessary or desirable to evidence more fully the transfer of\nownership of all the Discoveries to Company, or the original ownership of all the Discoveries on the part of Company,\nto the fullest extent possible. I therefore agree to:\n(e)\n(i) execute, acknowledge, and deliver any affidavits or documents of assignment and conveyance regarding the\nDiscoveries.\n(ii) provide testimony in connection with any proceeding affecting the right, title, interest, or benefit of Company in\nor to the Discoveries.\n(iii) perform any other acts deemed necessary to carry out the intent of this Agreement including, without limitation,\nassisting in the application, perfection, maintenance and enforcement of the Discoveries and all rights relating\nthereto.\nIn furtherance of this Agreement, I hereby acknowledge that, from this date forward, or a previous date if rights were\nearlier transferred, Company has succeeded to all of my rights, title, and standing to:\n(i) receive all rights and benefits pertaining to the Discoveries.\n(ii) institute and prosecute all suits and proceedings and take all actions that Company, in its sole discretion may\ndeem necessary or proper to collect, assert, or enforce any claim, right, or title of any kind in and to any and all\nof the Discoveries.\n(iii) defend and compromise any and all such actions, suits, or proceedings relating to such transferred and assigned\nrights, title, interest, and benefits, and do all other such acts and things in relation thereto as Company, in its\nsole discretion, deems advisable.\nUpon termination of my Employment, I will immediately surrender to Company all materials and work product in my\npossession or within my control (including all copies thereof) relating in any way to the Discoveries.\nTo effectuate the terms of this paragraph 6, I hereby name and irrevocably constitute and appoint Company, with the\nfull power of substitution therein, as my true and lawful attorney-in-fact to exercise the rights assigned hereby.\nI represent and warrant that no consents of any other parties are necessary or appropriate under any agreements\nconcerning any of the Discoveries in order for the transfer and assignment of any of the Discoveries under this\nAgreement to be legally effective.\nI represent and warrant that, to the best of my knowledge, upon consummation of this Agreement, Company will have\ngood and marketable title to the Discoveries, free and clear of any and all liens, mortgages, encumbrances, pledges,\nsecurity interests, or charges of any nature whatsoever.\n7. I have listed on the Schedule attached to this Agreement all inventions, if any, conceived or made by me prior to my\nEmployment by Company and which are to be excluded from this Agreement, as well as any restrictions on any work for\nCompany or any obligations under this Agreement arising from any prior employment or other agreement. I am not required\nto list on the Schedule any inventions conceived or made by me prior to my Employment by Company that (i) are unrelated\nto the business, operations, services or products of Company or (ii) are solely related to my personal hobbies and not to the\nbusiness, operations, service or products of Company.\nNon-Solicitation\n8. I agree that all Company relationships, whether or not contractual, including but not limited to, relationships with employees,\ncontractors, consultants, partners (collectively ”Relationships") are the sole property of Company. I agree that, during and\nafter my Employment with Company, unless Company provides written consent, 1 will not directly or indirectly provide\ninformation, including but not limited to,\nemployee lists, resumes, independent contractor agreements, employment information and contact information, to other entities or individuals. I agree not to interfere with these Relationships by hiring or soliciting for hire individuals or entities, directly or indirectly, to work with or for any person or entity external to Company without the written consent of Company, during, and for a period of 24 months after the termination of, my Employment with Company. I agree that all Company relationships with customers, partners, resellers, vendors and suppliers and all information, whether or not in writing, are and shall be the exclusive property of Company (collectively "Customer Information“). Customer Information shall not be used outside the duties of my Employment with Company without the written consent of Company, either during or after the termination of my Employment with Company. Non-C ompetition 10. 11. 12. (a) I further agree that, during the term of my Employment with Company, and for a period of twenty-four months\nfollowing the termination (whether voluntary or involuntary) of such Employment, I will not engage in any\ncapacity (including without limitation, as an employee, officer, director, consultant or shareholder (other\nthan as an owner of 1% or less of the outstanding shares of any publicly-traded company), in any\nCompeting Business in any geographical area in which Company (or any of Company's affiliates) transacts\nsuch business. For purposes of this Agreement a ”Competing Business" means any business engaged in\nproviding services similar to Company' s or in the marketing, sale, development and distribution of products\nthat are similar to Company's.\nThe covenants contained in this Section 10 shall be enforced to the fullest extent permissible under the laws of each\njurisdiction in which enforcement is sought. Accordingly, I agree that if any of the provisions of this Section 10 shall\nbe adjudicated to be invalid or unenforceable for any reason whatsoever, said provision shall be construed (only with\nrespect to the operation thereof in the particular jurisdiction in which such adjudication is made) by limiting and\nreducing it so as to be enforceable to the fullest extent permissible, without invalidating the remaining provisions of\nthis Agreement or affecting the validity or enforceability of said provision in any other jurisdiction.\nBreach by me of any provision of this Agreement will cause Company irreparable injury and damage for which money damages may not be adequate. In addition to all other remedies that are available to it, Company shall be entitled to preliminary and permanent injunctive and equitable relief to prevent or remedy a breach of this Agreement by me. This A greement: shall bind my heirs, executors, administrators, legal representatives and assigns, and supersedes any prior agreements\nconcerning Confidential Information executed by me with or in favor of Company, if any.\nconstitutes the entire understanding between Company and me concerning Confidential Information and no waiver or\namendment of any provision of this Agreement shall be valid or effective unless in writing and signed by the party\nagainst whom enforcement thereof is sought.\nshall be enforceable by Company or any of its successors or assigns.\n(d) shall be enforced and construed in accordance with the laws of the State of New Jersey, without giving effect to the\nchoice of laws principles of New Jersey that would result in the application of the laws of any other jurisdiction.\n13.\n14.\n15.\nShould any part of this Agreement for any reason be declared by any court of competent jurisdiction to be invalid, that\ndecision shall not affect the validity of the remaining portion, which shall continue in full force and effect as if this\nA greement had been executed with the invalid portion eliminated, provided, however, that this A greement shall be\ninterpreted to carry out to the greatest extent possible the intent of the parties and to provide to Company substantially the\nsame benefits as Company would have received under this Agreement if such invalid part of this Agreement had been\nenforceable.\nI represent that I am not a party to, or bound by, any confidentiality agreements, non-compete agreements, restrictive\ncovenants, non- solicitation agreements, invention and assignment agreements, or any other agreements or obligations to any\nformer employer or other entity that will prevent me from performing, or impede me in performance of service for Company.\nI also represent that l have disclosed to Company all contracts or agreements that could prevent me from carrying out my\nresponsibilities for Company. I further acknowledge that l have not and will not take or remove from my prior employment\nthe originals or copies of any documents maintained as confidential or proprietary information by my prior employer, and that\nl have not and will not disclose any confidential or proprietary information of my prior employer. Therefore, I am ”free and\nclear” to be employed by Company. I acknowledge that Company is relying on my representation in making its offer of\nemployment, in employing me, or in continuing my employment with Company. I further agree not to enter into any\nagreement either written or oral in conflict with my Employment with Company.\nI further agree that this A greement does not constitute a contract of employment, and that l have the right to resign and\nCompany has the right to terminate my employment at any time, for any reason, with or without cause, subject to the\nprovisions of any written employment agreement between Company and me. I hereby acknowledge that l have read this\nAgreement, understand it and agree to be bound by its restrictions.\nJAMES W.\nPREUNINGER\nMay , 2016\n(Date\nSigned)\nACCEPTED AND DATED AS OF MAY __, 2016 AMBER ROAD, INC. By:  \nName:\nTitle:	EXHIBIT B\nCONFIDENTIAL INFORMATION, ASSIGNMENT OF RIGHTS,\nNON-SOLICITATION AND NON-COMPETITION AGREEMENT\nIn consideration of my continued employment with mber Road, Inc., or any of its subsidiaries, in connection with the\nperformance of my duties as an employee of the A mber Road, Inc. or any of its subsidiaries ("Company") (hereinafter, my\n"Employment"), I hereby agree and acknowledge effective as of May 2016 that:\nConfidential Information\n1.\nAs a result of my Employment, I may come to possess Confidential Information, and the Company has informed me that it\nwill not retain me unless I agree to the terms of this A greement and abide by them. As used in this A greement, "Confidential\nInformation" includes, without limitation information, whether or not in tangible form, which has not been publicly disclosed\nregarding Company, any of Company's customers, remarketing and/or support agreements made between Company and its\nbusiness partners which disclose product data, commission rates, territories, quotas, and terms of licenses; the identities and\nlocations of vendors and consultants furnishing materials and services to Company and the terms of such arrangements\n(including prices) negotiated by Company with such vendors and consultants; data relating to sales and license volumes, by\ncustomer, by location or by product; data relating to consulting agreements between Company and its customers which\ndisclose billing rates, budgets, deliverables, time schedules and staff assignments; customer and product licensee and\nprospective product licensee lists; financial information that has not been released to the public by Company; employee lists\nof Company; future business plans, licensing strategies, advertising campaigns and the like; data provided to you which is\nmarked as confidential or proprietary to Company, one of Company's customers or business partners; proposed or actual\nacquisitions of stock or assets by Company; and/or any other information concerning or used in Company's business, its\nmanner of operations, its plan, processes or other data.\nThe definition of Confidential Information also shall include "Trade Secrets", which are defined as the whole or any portion\nor phase of any scientific or technical information, design, process, procedure, formula, data-processing technique, computer\nprogram, or improvement that is valuable and secret (in the sense that it is not generally known to competitors of Company\nor competitors of its business partners) To the extent consistent with the foregoing, Trade Secrets include, without\nlimitation, the specialized information and technology embodied in computer program material, including source and object\ncode, system and user documentation, and program and system designs that provide Company or its business partners with\nan advantage over their competitors in the development sales, implementation and support of their application software and\nproducts.\nI acknowledge that Company has developed its Confidential Information through its own efforts and at great expense. I\nfurther acknowledge that Company has a legitimate interest in protecting its Confidential Information.\n2.\nI will not at any time, except as required by my duties at Company, duplicate, remove, transfer, use, disclose or communicate,\nor knowingly allow any other person to duplicate, remove, transfer, use, disclose or communicate, any Confidential\nInformation. I will safeguard all Confidential Information at all times so that it is not exposed to, or taken by, unauthorized\npersons and will exercise my best efforts to assure its safekeeping I understand that the maintenance of the confidentiality of\nConfidential Information is material and essential to Company and its disclosure would have a severe adverse effect on the\nconduct of Company's business, and Company's competitive position and goodwill.\n3.\nUpon termination of my Employment whether voluntary or involuntary, or upon Company's request at any time during the\nterm of my Employment, I will deliver to Company all written and other materials which contain or relate to Confidential\nInformation, whether formal or informal, whether prepared by me or by\nothers and whether required by my employment or for my personal use, including, without limitation, all documents, notes,\ncomputer programs and data prepared for or stored in or obtained from any automated information system, all of which\nmaterials shall be and remain the property of Company. In addition, I shall also provide any information, such as passwords\nor codes, necessary to allow Company to fully utilize its property.\n4.\nI will not make any unauthorized disclosure of trade secrets or confidential information to any third person, including any\nsuch information which is subject to a confidentiality agreement between Company and such third person to which I gain\naccess as a result of my Employment.\n5.\nMy obligations under this A greement will remain in effect both during the term of my Employment and thereafter, whatever\nthe reason for termination of my Employment, and shall survive any termination of this greement.\nAssignment of Right\n6.\n(a) All intellectual property in whatever form including, without limitation, inventions, discoveries, ideas,\ncomputer programs, programs based upon or developed from computer programs, improvements, codes,\nmethods, algorithms, trade secrets, know-how, system documentation, technical data, drawings, flow\ncharts, prototypes, design specifications, and any other documentation, notes and materials related to the\nforegoing (whether or not patentable or copyrightable) that are conceived or made by me, either alone or\nwith others during the course of or derived from my Employment by Company and in any way related to\nmy Employment or to any business in which Company is engaged at any time during the term of my\nEmployment or (if it should reasonably be known by me) is considering in engaging ("Discoveries"), shall\nbe deemed to be "works made for hire" if permitted by applicable law and shall belong to Company.\n(b)\nI will promptly disclose all Discoveries to Company.\n(c)\nTo the extent that any Discovery does not constitute a work made for hire pursuant to applicable law, I hereby\ntransfer, grant convey assign and relinquish exclusively to Company all of my rights to, title to and interest in all\nDiscoveries, in perpetuity (or for the longest period of time otherwise permitted by law), including:\n(i) all of my rights, title, interest, and benefit (including the right to make, use, or sell under patent law; to copy,\nadapt, distribute, display, and perform under copyright law; and to use and disclose under trade secret law) in\nand to all United States and foreign patents and patent applications, patent license rights, patentable inventions,\ntrade secrets, trademarks, service marks, trade names (including, in the case of trademarks, service marks and\ntrade names, all goodwill pertaining thereto), copyrights, technology licenses, know-how, confidential\ninfomation, shop rights, and all other intellectual property rights owned or claimed or acquired in the future by\nme as embodied in the Discoveries; and\n(ii) all of my rights, title, interest, and benefit and all powers and privileges, in, to, and under all technical data,\ndrawings, prototypes, engineering files, system documentation, flow charts, and design specifications\ndeveloped by, owned, or acquired previously or in the future by me in connection with the development of the\nprogramming, inventions processes, and apparatus entailed by the Discoveries.\n(d)\nI will execute and deliver, from time to time after the date hereof, upon Company's request, such further conveyance\ninstruments, and take such further actions, as may be necessary or desirable to evidence more fully the transfer of\nownership of all the Discoveries to Company, or the original ownership of all the Discoveries on the part of Company,\nto the fullest extent possible. I therefore agree to:\n2\n(i) execute, acknowledge, and deliver any affidavits or documents of assignment and conveyance regarding the\nDiscoveries.\n(ii) provide testimony in connection with any proceeding affecting the right, title, interest, or benefit of Company in\nor to the Discoveries.\n(iii) perform any other acts deemed necessary to carry out the intent of this A greement including, without limitation,\nassisting in the application, perfection, maintenance and enforcement of the Discoveries and all rights relating\nthereto.\n(e)\nIn furtherance of this A greement, I hereby acknowledge that, from this date forward, or a previous date if rights were\nearlier transferred, Company has succeeded to all of my rights, title, and standing to:\n(i) receive all rights and benefits pertaining to the Discoveries.\n(ii) institute and prosecute all suits and proceedings and take all actions that Company, in its sole discretion may\ndeem necessary or proper to collect, assert, or enforce any claim, right, or title of any kind in and to any and all\nof the Discoveries.\n(iii) defend and compromise any and all such actions, suits, or proceedings relating to such transferred and assigned\nrights title, interest, and benefits, and do all other such acts and things in relation thereto as Company, in its\nsole discretion, deems advisable.\n(f)\nUpon termination of my Employment, I will immediately surrender to Company all materials and work product in my\npossession or within my control (including all copies thereof) relating in any way to the Discoveries.\n(g)\nTo effectuate the terms of this paragraph 6, I hereby name and irrevocably constitute and appoint Company, with the\nfull power of substitution therein, as my true and lawful attomey-in-fact to exercise the rights assigned hereby.\n(h)\nI represent and warrant that no consents of any other parties are necessary or appropriate under any agreements\nconcerning any of the Discoveries in order for the transfer and assignment of any of the Discoveries under this\nA greement to be legally effective.\n(i)\nI represent and warrant that, to the best of my knowledge, upon consummation of this A greement, Company will have\ngood and marketable title to the Discoveries, free and clear of any and all liens, mortgages, encumbrances, pledges,\nsecurity interests, or charges of any nature whatsoever.\n7.\nI have listed on the Schedule attached to this Agreement all inventions, if any, conceived or made by me prior to my\nEmployment by Company and which are to be excluded from this A greement, as well as any restrictions on any work for\nCompany or any obligations under this A greement arising from any prior employment or other agreement I am not required\nto list on the Schedule any inventions conceived or made by me prior to my Employment by Company that (i) are unrelated\nto the business, operations, services or products of Company or (ii) are solely related to my personal hobbies and not to the\nbusiness, operations, service or products of Company.\nNon-Solicitation\n8.\nI agree that all Company relationships, whether or not contractual, including but not limited to, relationships with employees,\ncontractors, consultants, partners (collectively "Relationships") are the sole property of Company. I agree that, during and\nafter my Employment with Company, unless Company provides written consent, I will not directly or indirectly provide\ninformation including but not limited to,\n3\nemployee lists, resumes, independent contractor agreements, employment information and contact information, to other\nentities or individuals. I agree not to interfere with these Relationships by hiring or soliciting for hire individuals or entities,\ndirectly or indirectly, to work with or for any person or entity external to Company without the written consent of Company,\nduring, and for a period of 24 months after the termination of, my Employment with Company.\n9.\nI\nagree that all Company relationships with customers, partners, resellers, vendors and suppliers and all information whether\nor not in writing, are and shall be the exclusive property of Company (collectively "Customer Information"). Customer\nInformation shall not be used outside the duties of my Employment with Company without the written consent of Company,\neither during or after the termination of my Employment with Company.\nNon-c Competition\n10.\n(a) I further agree that, during the term of my Employment with Company, and for a period of twenty-four months\nfollowing the termination (whether voluntary or involuntary) of such Employment, I will not engage in any\ncapacity (including without limitation, as an employee, officer director, consultant or shareholder (other\nthan as an owner of 1% or less of the outstanding shares of any publicly-traded company), in any\nCompeting Business in any geographica area in which Company (or any of Company's affiliates) transacts\nsuch business. For purposes of this A greement a "Competing Business" means any business engaged in\nproviding services similar to Company's or in the marketing, sale, development and distribution of products\nthat are similar to Company's.\n(b)\nThe covenants contained in this Section 10 shall be enforced to the fullest extent permissible under the laws of each\njurisdiction in which enforcement is sought. A ccordingly, I agree that if any of the provisions of this Section 10 shall\nbe adjudicated to be invalid or unenforceable for any reason whatsoever, said provision shall be construed (only with\nrespect to the operation thereof in the particular jurisdiction in which such adjudication is made) by limiting and\nreducing it so as to be enforceable to the fullest extent permissible, without invalidating the remaining provisions of\nthis A greement or affecting the validity or enforceability of said provision in any other jurisdiction.\n11.\nBreach by me of any provision of this A greement will cause Company irreparable injury and damage for which money\ndamages may not be adequate. In addition to all other remedies that are available to it, Company shall be entitled to\npreliminary and permanent injunctive and equitable relief to prevent or remedy a breach of this A greement by me.\n12.\nThis greement:\n(a)\nshall bind my heirs, executors, administrators, legal representatives and assigns, and supersedes any prior agreements\nconcerning Confidential Information executed by me with or in favor of Company, if any.\n(b)\nconstitutes the entire understanding between Company and me concerning Confidential Information and no waiver or\namendment of any provision of this A greement shall be valid or effective unless in writing and signed by the party\nagainst whom enforcement thereof is sought.\n(c)\nshall be enforceable by Company or any of its successors or assigns.\n(d)\nshall be enforced and construed in accordance with the laws of the State of New Jersey, without giving effect to the\nchoice of laws principles of New Jersey that would result in the application of the laws of any other jurisdiction.\n4\n13.\nShould any part of this A greement for any reason be declared by any court of competent jurisdiction to be invalid, that\ndecision shall not affect the validity of the remaining portion, which shall continue in full force and effect as if this\nA greement had been executed with the invalid portion eliminated, provided, however, that this A greement shall be\ninterpreted to carry out to the greatest extent possible the intent of the parties and to provide to Company substantially the\nsame benefits as Company would have received under this A greement if such invalid part of this A greement had been\nenforceable.\n14.\nI represent that I am not a party to, or bound by, any confidentiality agreements, non-compete agreements, restrictive\ncovenants, non-solicitation agreements, invention and assignment agreements, or any other agreements or obligations to any\nformer employer or other entity that will prevent me from performing, or impede me in performance of service for Company.\nI also represent that I have disclosed to Company all contracts or agreements that could prevent me from carrying out my\nresponsibilities for Company. I further acknowledge that I have not and will not take or remove from my prior employment\nthe originals or copies of any documents maintained as confidential or proprietary information by my prior employer, and that\nI have not and will not disclose any confidential or proprietary information of my prior employer. Therefore, I am "free and\nclear" to be employed by Company. I acknowledge that Company is relying on my representation in making its offer of\nemployment, in employing me, or in continuing my employment with Company. I further agree not to enter into any\nagreement either written or oral in conflict with my Employment with Company.\n15.\nI further agree that this A greement does not constitute a contract of employment, and that I have the right to resign and\nCompany has the right to terminate my employment at any time, for any reason, with or without cause, subject to the\nprovisions of any written employment agreement between Company and me. I hereby acknowledge that I have read this\nAgreement, understand it and agree to be bound by its restrictions.\nJAMES W.\nPREUNINGER\nMay 2016\n(Date\nSigned)\nACCEPTED AND DATED AS OF MAY 2016\nAMBER ROAD, INC.\nBy:\nName:\nTitle:\n5	EXHIBIT B\nCONFIDENTIAL INFORMATION, ASSIGNMENT OF RIGHTS,\nNON-SOLICITATION AND NON-COMPETITION AGREEMENT\nIn consideration of my continued employment with Amber Road, Inc., or any of its subsidiaries, in connection with the\nperformance of my duties as an employee of the Amber Road, Inc. or any of its subsidiaries (“Company”) (hereinafter, my\n"Employment"), I hereby agree and acknowledge effective as of May __, 2016 that:\nConfidential Information\n1.\nAs a result of my Employment, I may come to possess Confidential Information, and the Company has informed me that it\nwill not retain me unless I agree to the terms of this Agreement and abide by them. As used in this Agreement, "Confidential\nInformation" includes, without limitation, information, whether or not in tangible form, which has not been publicly disclosed\nregarding Company, any of Company's customers, remarketing and/or support agreements made between Company and its\nbusiness partners which disclose product data, commission rates, territories, quotas, and terms of licenses; the identities and\nlocations of vendors and consultants furnishing materials and services to Company and the terms of such arrangements\n(including prices) negotiated by Company with such vendors and consultants; data relating to sales and license volumes, by\ncustomer, by location or by product; data relating to consulting agreements between Company and its customers which\ndisclose billing rates, budgets, deliverables, time schedules and staff assignments; customer and product licensee and\nprospective product licensee lists; financial information that has not been released to the public by Company; employee lists\nof Company; future business plans, licensing strategies, advertising campaigns and the like; data provided to you which is\nmarked as confidential or proprietary to Company, one of Company’s customers or business partners; proposed or actual\nacquisitions of stock or assets by Company; and/or any other information concerning or used in Company's business, its\nmanner of operations, its plan, processes or other data.\nThe definition of Confidential Information also shall include “Trade Secrets”, which are defined as the whole or any portion\nor phase of any scientific or technical information, design, process, procedure, formula, data-processing technique, computer\nprogram, or improvement that is valuable and secret (in the sense that it is not generally known to competitors of Company\nor competitors of its business partners). To the extent consistent with the foregoing, Trade Secrets include, without\nlimitation, the specialized information and technology embodied in computer program material, including source and object\ncode, system and user documentation, and program and system designs that provide Company or its business partners with\nan advantage over their competitors in the development, sales, implementation and support of their application software and\nproducts.\nI acknowledge that Company has developed its Confidential Information through its own efforts and at great expense. I\nfurther acknowledge that Company has a legitimate interest in protecting its Confidential Information.\n2.\nI will not at any time, except as required by my duties at Company, duplicate, remove, transfer, use, disclose or communicate,\nor knowingly allow any other person to duplicate, remove, transfer, use, disclose or communicate, any Confidential\nInformation. I will safeguard all Confidential Information at all times so that it is not exposed to, or taken by, unauthorized\npersons and will exercise my best efforts to assure its safekeeping. I understand that the maintenance of the confidentiality of\nConfidential Information is material and essential to Company and its disclosure would have a severe adverse effect on the\nconduct of Company's business, and Company's competitive position and goodwill.\n3.\nUpon termination of my Employment, whether voluntary or involuntary, or upon Company's request at any time during the\nterm of my Employment, I will deliver to Company all written and other materials which contain or relate to Confidential\nInformation, whether formal or informal, whether prepared by me or by\nothers and whether required by my employment or for my personal use, including, without limitation, all documents, notes,\ncomputer programs and data prepared for or stored in or obtained from any automated information system, all of which\nmaterials shall be and remain the property of Company. In addition, I shall also provide any information, such as passwords\nor codes, necessary to allow Company to fully utilize its property.\n4.\nI will not make any unauthorized disclosure of trade secrets or confidential information to any third person, including any\nsuch information which is subject to a confidentiality agreement between Company and such third person, to which I gain\naccess as a result of my Employment.\n5.\nMy obligations under this Agreement will remain in effect both during the term of my Employment and thereafter, whatever\nthe reason for termination of my Employment, and shall survive any termination of this Agreement.\nAssignment of Right\n6.\n(a) All intellectual property in whatever form including, without limitation, inventions, discoveries, ideas,\ncomputer programs, programs based upon or developed from computer programs, improvements, codes,\nmethods, algorithms, trade secrets, know-how, system documentation, technical data, drawings, flow\ncharts, prototypes, design specifications, and any other documentation, notes and materials related to the\nforegoing (whether or not patentable or copyrightable) that are conceived or made by me, either alone or\nwith others, during the course of or derived from my Employment by Company and in any way related to\nmy Employment or to any business in which Company is engaged at any time during the term of my\nEmployment or (if it should reasonably be known by me) is considering in engaging ("Discoveries"), shall\nbe deemed to be "works made for hire" if permitted by applicable law and shall belong to Company.\n(b) I will promptly disclose all Discoveries to Company.\n(c) To the extent that any Discovery does not constitute a work made for hire pursuant to applicable law, I hereby\ntransfer, grant, convey, assign and relinquish exclusively to Company all of my rights to, title to and interest in all\nDiscoveries, in perpetuity (or for the longest period of time otherwise permitted by law), including:\n(i) all of my rights, title, interest, and benefit (including the right to make, use, or sell under patent law; to copy,\nadapt, distribute, display, and perform under copyright law; and to use and disclose under trade secret law) in\nand to all United States and foreign patents and patent applications, patent license rights, patentable inventions,\ntrade secrets, trademarks, service marks, trade names (including, in the case of trademarks, service marks and\ntrade names, all goodwill pertaining thereto), copyrights, technology licenses, know-how, confidential\ninformation, shop rights, and all other intellectual property rights owned or claimed or acquired in the future by\nme as embodied in the Discoveries; and\n(ii) all of my rights, title, interest, and benefit and all powers and privileges, in, to, and under all technical data,\ndrawings, prototypes, engineering files, system documentation, flow charts, and design specifications\ndeveloped by, owned, or acquired previously or in the future by me in connection with the development of the\nprogramming, inventions, processes, and apparatus entailed by the Discoveries.\n(d) I will execute and deliver, from time to time after the date hereof, upon Company's request, such further conveyance\ninstruments, and take such further actions, as may be necessary or desirable to evidence more fully the transfer of\nownership of all the Discoveries to Company, or the original ownership of all the Discoveries on the part of Company,\nto the fullest extent possible. I therefore agree to:\n2\n(i) execute, acknowledge, and deliver any affidavits or documents of assignment and conveyance regarding the\nDiscoveries.\n(ii) provide testimony in connection with any proceeding affecting the right, title, interest, or benefit of Company in\nor to the Discoveries.\n(iii) perform any other acts deemed necessary to carry out the intent of this Agreement including, without limitation,\nassisting in the application, perfection, maintenance and enforcement of the Discoveries and all rights relating\nthereto.\n(e) In furtherance of this Agreement, I hereby acknowledge that, from this date forward, or a previous date if rights were\nearlier transferred, Company has succeeded to all of my rights, title, and standing to:\n(i) receive all rights and benefits pertaining to the Discoveries.\n(ii) institute and prosecute all suits and proceedings and take all actions that Company, in its sole discretion may\ndeem necessary or proper to collect, assert, or enforce any claim, right, or title of any kind in and to any and all\nof the Discoveries.\n(iii) defend and compromise any and all such actions, suits, or proceedings relating to such transferred and assigned\nrights, title, interest, and benefits, and do all other such acts and things in relation thereto as Company, in its\nsole discretion, deems advisable.\n(f) Upon termination of my Employment, I will immediately surrender to Company all materials and work product in my\npossession or within my control (including all copies thereof) relating in any way to the Discoveries.\n(g) To effectuate the terms of this paragraph 6, I hereby name and irrevocably constitute and appoint Company, with the\nfull power of substitution therein, as my true and lawful attorney-in-fact to exercise the rights assigned hereby.\n(h) I represent and warrant that no consents of any other parties are necessary or appropriate under any agreements\nconcerning any of the Discoveries in order for the transfer and assignment of any of the Discoveries under this\nAgreement to be legally effective.\n(i) I represent and warrant that, to the best of my knowledge, upon consummation of this Agreement, Company will have\ngood and marketable title to the Discoveries, free and clear of any and all liens, mortgages, encumbrances, pledges,\nsecurity interests, or charges of any nature whatsoever.\n7.\nI have listed on the Schedule attached to this Agreement all inventions, if any, conceived or made by me prior to my\nEmployment by Company and which are to be excluded from this Agreement, as well as any restrictions on any work for\nCompany or any obligations under this Agreement arising from any prior employment or other agreement. I am not required\nto list on the Schedule any inventions conceived or made by me prior to my Employment by Company that (i) are unrelated\nto the business, operations, services or products of Company or (ii) are solely related to my personal hobbies and not to the\nbusiness, operations, service or products of Company.\nNon-Solicitation\n8.\nI agree that all Company relationships, whether or not contractual, including but not limited to, relationships with employees,\ncontractors, consultants, partners (collectively “Relationships”) are the sole property of Company. I agree that, during and\nafter my Employment with Company, unless Company provides written consent, I will not directly or indirectly provide\ninformation, including but not limited to,\n3\nemployee lists, resumes, independent contractor agreements, employment information and contact information, to other\nentities or individuals. I agree not to interfere with these Relationships by hiring or soliciting for hire individuals or entities,\ndirectly or indirectly, to work with or for any person or entity external to Company without the written consent of Company,\nduring, and for a period of 24 months after the termination of, my Employment with Company.\n9.\nI agree that all Company relationships with customers, partners, resellers, vendors and suppliers and all information, whether\nor not in writing, are and shall be the exclusive property of Company (collectively "Customer Information"). Customer\nInformation shall not be used outside the duties of my Employment with Company without the written consent of Company,\neither during or after the termination of my Employment with Company.\nNon-Competition\n10.\n(a) I further agree that, during the term of my Employment with Company, and for a period of twenty-four months\nfollowing the termination (whether voluntary or involuntary) of such Employment, I will not engage in any\ncapacity (including without limitation, as an employee, officer, director, consultant or shareholder (other\nthan as an owner of 1% or less of the outstanding shares of any publicly-traded company), in any\nCompeting Business in any geographical area in which Company (or any of Company’s affiliates) transacts\nsuch business. For purposes of this Agreement a “Competing Business” means any business engaged in\nproviding services similar to Company’s or in the marketing, sale, development and distribution of products\nthat are similar to Company's.\n(b) The covenants contained in this Section 10 shall be enforced to the fullest extent permissible under the laws of each\njurisdiction in which enforcement is sought. Accordingly, I agree that if any of the provisions of this Section 10 shall\nbe adjudicated to be invalid or unenforceable for any reason whatsoever, said provision shall be construed (only with\nrespect to the operation thereof in the particular jurisdiction in which such adjudication is made) by limiting and\nreducing it so as to be enforceable to the fullest extent permissible, without invalidating the remaining provisions of\nthis Agreement or affecting the validity or enforceability of said provision in any other jurisdiction.\n11. Breach by me of any provision of this Agreement will cause Company irreparable injury and damage for which money\ndamages may not be adequate. In addition to all other remedies that are available to it, Company shall be entitled to\npreliminary and permanent injunctive and equitable relief to prevent or remedy a breach of this Agreement by me.\n12. This Agreement:\n(a) shall bind my heirs, executors, administrators, legal representatives and assigns, and supersedes any prior agreements\nconcerning Confidential Information executed by me with or in favor of Company, if any.\n(b) constitutes the entire understanding between Company and me concerning Confidential Information and no waiver or\namendment of any provision of this Agreement shall be valid or effective unless in writing and signed by the party\nagainst whom enforcement thereof is sought.\n(c) shall be enforceable by Company or any of its successors or assigns.\n(d) shall be enforced and construed in accordance with the laws of the State of New Jersey, without giving effect to the\nchoice of laws principles of New Jersey that would result in the application of the laws of any other jurisdiction.\n4\n13. Should any part of this Agreement for any reason be declared by any court of competent jurisdiction to be invalid, that\ndecision shall not affect the validity of the remaining portion, which shall continue in full force and effect as if this\nAgreement had been executed with the invalid portion eliminated, provided, however, that this Agreement shall be\ninterpreted to carry out to the greatest extent possible the intent of the parties and to provide to Company substantially the\nsame benefits as Company would have received under this Agreement if such invalid part of this Agreement had been\nenforceable.\n14. I represent that I am not a party to, or bound by, any confidentiality agreements, non-compete agreements, restrictive\ncovenants, non-solicitation agreements, invention and assignment agreements, or any other agreements or obligations to any\nformer employer or other entity that will prevent me from performing, or impede me in performance of service for Company.\nI also represent that I have disclosed to Company all contracts or agreements that could prevent me from carrying out my\nresponsibilities for Company. I further acknowledge that I have not and will not take or remove from my prior employment\nthe originals or copies of any documents maintained as confidential or proprietary information by my prior employer, and that\nI have not and will not disclose any confidential or proprietary information of my prior employer. Therefore, I am “free and\nclear” to be employed by Company. I acknowledge that Company is relying on my representation in making its offer of\nemployment, in employing me, or in continuing my employment with Company. I further agree not to enter into any\nagreement either written or oral in conflict with my Employment with Company.\n15. I further agree that this Agreement does not constitute a contract of employment, and that I have the right to resign and\nCompany has the right to terminate my employment at any time, for any reason, with or without cause, subject to the\nprovisions of any written employment agreement between Company and me. I hereby acknowledge that I have read this\nAgreement, understand it and agree to be bound by its restrictions.\nJAMES W.\nPREUNINGER\nMay __, 2016\n(Date\nSigned)\nACCEPTED AND DATED AS OF MAY __, 2016\nAMBER ROAD, INC.\nBy: ___________________________\nName:\nTitle:\n5
+83087d7615931fce886400dab46a067a.pdf	effective_date jurisdiction party	EX-10 6 ex10h.txt ICT, INC. AGREEMENT Cyberlux Corporation and International Consolidated Technologies MUTUAL NON DISCLOSURE AGREEMENT This\nMutual Non-Disclosure Agreement (the "Agreement") is made and entered into this 30th day of November, 2001 by and between Cyberlux Corporation\n("Cyberlux") with it principal place of business located at 50 Orange Road, PO Box 2010, Pinehurst, NC 28370 and International Consolidated Technologies\n("ICT"), with its principal place of business located at 400 West Delaware Casey, IL 62420. WHEREAS , Cyberlux and ICT intend to enter into discussions\nconcerning a business relationship whereby ICT will provide Cyberlux with certain services; NOW, THEREFORE , the parties hereto agree as follows: 1.\nPROPRIETARY INFORMATION. For purposes of this Agreement, "Proprietary Information" shall mean written, documentary or oral information of any kind\ndisclosed by Cyberlux or ICT to the other and designated as proprietary information, including, but not limited to, (a) information of a business, planning,\nmarketing or technical nature, (b) models, tools, hardware and software, and (c) any documents, reports, memoranda, notes, files or analyses prepared by or on\nbehalf of the receiving party that contain, summarize or are based upon any Proprietary Information, provided that "Proprietary Information" shall not include\ninformation which: (i) is publicly available prior to the date of this Agreement; (ii) becomes publicly available after the date of this Agreement trough no wrongful\nact of the receiving party; (iii) is furnished to others by the disclosing party without similar restrictions on their right to use or disclose; (iv) is known by the receiving\nparty without any proprietary restrictions at the time of receipt of such information from the disclosing party or becomes rightfully known to the receiving party\nwithout proprietary restrictions from a source other than the disclosing party; (v) is independently developed by the receiving party by persons who did not have\naccess, directly or indirectly, to the proprietary Information; or /1/ (vi) is obligated to be produced under order of a court of competent jurisdiction or a valid\nadministrative or congressional subpoena, provided that the receiving party promptly notifies the disclosing party of such event so that the disclosing party may\nseek an appropriate protective order or waive compliance by the receiving party with the terns of this Agreement. 2. CONFIDENTIALITY a. The receiving party\nshall protect all of the disclosing party's Proprietary Information as confidential information and, except with the prior written consent of the disclosing party or as\notherwise specifically provided herein, shall. not disclose, copy or distribute such Proprietary Information to any other individual, corporation or entity for a period\nof three (3) years from the date of disclosure. b. Except in connection with any joint project between Cyberlux and ICT, the receiving party shall not make any use\nof the disclosing party's Proprietary Information for is own benefit or for the benefit of any other individual, corporation or entity. c. The receiving party shall not\ndisclose all or any part of the disclosing party's Proprietary Information to any affiliates, agents, officers, directors, employees or representatives (collectively,\n"Representatives") of the receiving party except on a need-to-know basis. The receiving party agrees to inform any of its Representatives who receive the\ndisclosing parts Proprietary Information of the confidential and proprietary nature thereof and of such Representative's obligations with respect to the\nmaintenance of such Proprietary Information in conformance with the terms of this Agreement. d. Each party shall maintain the other party's Proprietary\nInformation with at least the same degree of care each party uses to maintain its own proprietary information. Each party represents that such degree of care\nprovides adequate protection for its own proprietary information. e. The receiving party shall immediately advise the disclosing party in writing of any\nmisappropriation or misuse by any person of the disclosing party's Proprietary Information of which the receiving party is aware. f. Any documents or materials\nthat are furnished by or on behalf of the disclosing party, and all other Proprietary Information in whatever form, including documents, reports, memoranda, notes,\nfiles or analyses prepared by or on behalf of the receiving party, including all copies of such materials, shall be promptly returned by the receiving party to the\ndisclosing party upon written request by the disclosing party for any reason. 2 3. NO LICENSES OR WARRANTIES . No license to the receiving party under any\ntrade secrets or patents or otherwise with respect to any of the Proprietary Information is granted or implied by conveying proprietary Information or other\ninformation to such party, and none of the information transmitted or exchanged shall constitute any representation, warranty, assurance , guaranty or inducement\nwith respect to the infringement of patents or other rights of others. 4. REMEDY FOR BREACH . Each receiving party acknowledges that the Proprietary\nInformation of the disclosing party is central to the disclosing party's business and was developed by or for the disclosing party at a significant cost. Each\nreceiving party further acknowledges that damages would not be an adequate remedy for any breach of this Agreement by the receiving party or its\nRepresentatives and that the disclosing party may obtain injunctive or other equitable relief to remedy or prevent any breach or threatened breach of this\nAgreement by the receiving party or any of its Representatives. Such remedy shall not be deemed to be the exclusive remedy for .any such breach of this\nAgreement, but shall be in addition to all other remedies available at law or in equity to the disclosing party. 5. MISCELLANEOUS . a. This Agreement contains the\nentire understanding between Cyberlux and ICT and supersedes all prior written and oral understandings relating to the subject hereof. This Agreement may not\nbe modified except by a writing signed by both parties. b. The construction, interpretation and performance of this Agreement, as well as the legal relations of the\nparties arising hereunder, will be governed by and construed in accordance with the laws of the State of North Carolina. e. It is understood and agreed that no\nfailure or delay by either Cyberlux or ICT in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. No waiver of any terms or\nconditions of this Agreement shall be deemed to be a waiver of any subsequent breach of any term or condition. All waivers must be in writing and signed by the\nparty sought to be bound d. If any part of this Agreement shall be held unenforceable, the remainder of this Agreement will nevertheless remain in full force and\neffect. 3 IN WITNESS WHEREOF, each of the parties of this Agreement has caused this Agreement to be signed in its name and on its behalf by its\nrepresentative thereunto duly authorized as of the day and year first above written. Cyberlux Corporation By: /s/ Donald F. Evans ---------------------- Donald F.\nEvans President International Consolidated Technologies By: /s/ Jim Goble 12/12/01 ---------------------------- Jim Goble Engineering and Tooling Manager	EX-10 6 ex10h.txt ICT, INC. AG RE E M E NT Cyberlux Corporation and International Consolidated Technologies MUTUAL NON DISC LOSU R E AG RE E M E NT This\nMutual Non-Disclosure Agreement (the "Agreement") is made and entered into this 30th day of November, 2001 by and between Cyberlux Corporation\n("Cyberlux") with itprincipal place ofbusiness located at 50 Orange Road, PO Box 2010, Pinehurst, NC 28370 and International Consolidated Technologies\n("ICT"), with is principal place of business located at400 West Delaware Casey, IL 62420. WHE REAS, Cyberlux and ICT intend to enter into discussions\nconcerning a business relationship whereby |CT will provide Cyberlux with certain sen/ices; NOW, THE RE FORE, the parties hereto agree as follows: 1.\nP ROP R|ETARY IN FORMATION. For purposes ofthis Agreement, "Proprietary Information" shall mean written, documentary or oral information of any kind\ndisclosed by Cyberlux or ICT to the other and designated as proprietary information, including, but not limited to, (a) information of a business, planning,\nmarketing ortechnical nature, (b) models, tools, hardware and software, and (c) any documens, repors, memoranda, notes, files or analyses prepared by or on\nbehalf of the receiving party thatcontain, summarize or are based upon any Proprietary Information, provided that "Proprietary Information" shall not include\ninformation which: (i) is publicly available prior to the date ofthis Agreement; (ii) becomes publicly available after the date ofthis Agreement trough no wrongful\nactofthe receiving party; (iii) is furnished to others by the disclosing party withoutsimilar restrictions on their rightto use or disclose; (iv) is known by the receiving\nparty without any proprietary restrictions atthe time of receiptofsuch information from the disclosing party or becomes rightfully known to the receiving party\nwithout proprietary restrictions from a source other than the disclosing party; (v) is independently developed by the receiving party by persons who did not have\naccess, directly or indirectjy, to the proprietary Information; or/1/ (vi) is obligated to be produced under order of a court of competentjurisdiction or a valid\nadministrative or congressional subpoena, provided thatthe receiving party promptjy notifies the disclosing party ofsuch eventso that the disclosing party may\nseek an appropriate protective order or waive compliance by the receiving party with the terns ofthis Agreement. 2. CONFIDE NTIALITY a. The receiving party\nshall protect all of the disclosing party's Proprietary Information as confidential information and, except with the prior written consentofthe disclosing party or as\nothenNise specifically provided herein, shall. notdisclose, copy or distribute such Proprietary Information to any other individual, corporation or entity for a period\nof three (3) years from the date ofdisclosure. b. Except in connection with anyjoint project between Cyberlux and ICT, the receiving party shall not make any use\nof the disclosing party's Proprietary Information for is own benefit or for the benefit of any other individual, corporation or entity. c. The receiving party shall not\ndisclose all or any part ofthe disclosing party's Proprietary Information to any affiliates, agens, officers, directors, employees or representatives (collectively,\n"Representatives") of the receiving party excepton a need-to-know basis. The receiving party agrees to inform any of is Representatives who receive the\ndisclosing pars Proprietary Information ofthe confidential and proprietary nature thereof and of such Representative's obligations with respectto the\nmaintenance ofsuch Proprietary Information in conformance with the terms of this Agreement. d. Each party shall maintain the other party's Proprietary\nInformation with at leastthe same degree ofcare each party uses to maintain is own proprietary information. Each party represens that such degree ofcare\nprovides adequate protection for is own proprietary information. e. The receiving party shall immediately advise the disclosing party in writing of any\nmisappropriation or misuse by any person of the disclosing party's Proprietary Information ofwhich the receiving party is aware. f. Any documens or materials\nthat are furnished by or on behalf of the disclosing party, and all other Proprietary Information in whatever form, including documens, repors, memoranda, notes,\nfiles or analyses prepared by or on behalf of the receiving party, including all copies of such materials, shall be promptly returned by the receiving party to the\ndisclosing party upon written request by the disclosing party for any reason. 2 3. NO LIC ENSES OR WARRANTIES. No license to the receiving party under any\ntrade secres or patens or othenNise with respectto any of the Proprietary Information is granted or implied by conveying proprietary Information or other\ninformation to such party, and none ofthe information transmitted or exchanged shall constitute any representation, warranty, assurance, guaranty or inducement\nwith respectto the infringement of patens or other righs of others. 4. RE ME DY FOR BREACH. Each receiving party acknowledges that the Proprietary\nInformation of the disclosing party is central to the disclosing party's business and was developed by or for the disclosing party at a significant cost. Each\nreceiving party further acknowledges thatdamages would not be an adequate remedy for any breach of this Agreement by the receiving party or is\nRepresentatives and that the disclosing party may obtain injunctive or other equitable relief to remedy or prevent any breach or threatened breach of this\nAgreement by the receiving party or any of is Representatives. Such remedy shall not be deemed to be the exclusive remedy for .any such breach ofthis\nAgreement, butshall be in addition to all other remedies available atlaw or in equity to the disclosing party. 5. MISCELLANEOUS. a. This Agreement contains the\nentire understanding between Cyberlux and ICT and supersedes all prior written and oral understandings relating to the subject hereof. This Agreement may not\nbe modified except by a writing signed by both parties. b. The construction, interpretation and performance of this Agreement, as well as the legal relations ofthe\nparties arising hereunder, will be governed by and construed in accordance with the laws ofthe State of North Carolina. e. It is understood and agreed that no\nfailure or delay by either Cyberlux or ICT in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. No waiver of any terms or\nconditions ofthis Agreement shall be deemed to be a waiver of any subsequent breach of any term or condition. All waivers must be in writing and signed by the\nparty sought to be bound d. If any part of this Agreementshall be held unenforceable, the remainder ofthis Agreement will nevertheless remain in full force and\neffect. 3 IN WITNESS WHEREOF, each ofthe parties of this Agreementhas caused this Agreement to be signed in is name and on is behalf by is\nrepresentative thereunto duly authorized as ofthe day and year first above written. Cyberlux Corporation By: /s/ Donald F. Evans ---------------------- Donald F.\nEvans President International Consolidated Technologies By: /s/J im Goble 12/12/01 ---------------------------- Jim Goble Engineering and Tooling Manager	EX-10 6 exl0h.txt INC. AGREEMENT Cyberlux Corporation and International Consolidated Technologies MUTUAL NON DISCLOSURE AGREEMENT This\nMutua Non-Disclosure Agreement (the "Agreement") is made and entered into this 30th day of November, 2001 by and between Cyberlux Corporation\n"Cyberlux") with it principal place of business located at 50 Orange Road, PO Box 2010, P inehurst, NC 28370 and International Consolidated Technologies\n("ICT"), with its principal place of business located at 400 West Delaware Casey IL 62420. WHEREAS, Cyberlux and ICT intend to enter into discussions\nconcerning a business relationship whereby ICT will provide Cyberlux with certain services; NOW, THEREFORE, the parties hereto agree as follows: 1.\nPROPRIETARY INFORMATION. or purposes of this Agreement, "Proprietary Information" shall mean written, documentary or oral information of any kind\ndisclosed by Cyberlux or ICT to the other and designated as proprietary information, including, but not limited to, (a) information of a business, planning,\nmarketing or technical nature, (b) models, tools, hardware and software, and (c) any documents, reports, memoranda, notes, files or analyses prepared by or on\nbehalf of the receiving party that contain, summarize or are based upon any roprietary Information, provided that roprietary Information" shall not include\ninformation which: (i) is publicly available prior to the date of this Agreement; (ii) becomes publicly available after the date of this Agreement trough no wrongful\nact of the receiving party; (iii) is furnished to others by the disclosing party without similar restrictions on their right to use or disclose; (iv) is known by the receiving\nparty without any proprietary restrictions at the time of receipt of such information from the disclosing party or becomes rightfully known to the receiving party\nwithout proprietary restrictions from a source other than the disclosing party; (v) is independently developed by the receiving party by persons who did not have\naccess, directly or indirectly, to the proprietary Information; or /1/ (vi) is obligated to be produced under order of a court of competent jurisdiction or a valid\nadministrative or congressional subpoena, provided that the receiving party promptly notifies the disclosing party of such event so that the disclosing party may\nseek an appropriate protective order or waive compliance by the receiving party with the terns of this Agreement. 2. CONFIDENTIALITY a. The receiving party\nshall protect all of the disclosing party's Proprietary Information as confidential information and, except with the prior written consent of the disclosing party or as\notherwise specifically provided herein, shall. not disclose, copy or distribute such P roprietary Information to any other individual, corporation or entity for a period\nof three (3) years from the date of disclosure. b. xcept in connection with any joint project between Cyberlux and ICT, the receiving party shall not make any use\nof the disclosing party's roprietary Information for is own benefit or for the benefit of any other individual, corporation or entity. c. The receiving party shall not\ndisclose all or any part of the disclosing party's Proprietary Information to any affiliates, agents, officers, directors, employees or representatives (collectively,\n"Representatives") of the receiving party except on a need-to-know basis. The receiving party agrees to inform any of its Representatives who receive the\ndisclosing parts Proprietary Information of the confidential and proprietary nature thereof and of such epresentative's obligations with respect to the\nmaintenance of such Proprietary Information in conformance with the terms of this Agreement. d. Each party shall maintain the other party's P roprietary\nInformation with at least the same degree of care each party uses to maintain its own proprietary information. Each party represents that such degree of care\nprovides adequate protection for its own proprietary information. e. The receiving party shall immediately advise the disclosing party in writing of any\nmisappropriation or misuse by any person of the disclosing party's roprietary Information of which the receiving party is aware. f. Any documents or materials\nthat are furnished by or on behalf of the disclosing party, and all other roprietary Information in whatever form, including documents, reports, memoranda, notes,\nfiles or analyses prepared by or on behalf of the receiving party, including all copies of such materials, shal be promptly returned by the receiving party to the\ndisclosing party upon written request by the disclosing party for any reason. 2 3. NO LICENSES OR WARRANTIES. No license to the receiving party under any\ntrade secrets or patents or otherwise with respect to any of the P roprietary Information is granted or implied by conveying proprietary Information or other\ninformation to such party, and none of the information transmitted or exchanged shall constitute any representation, warranty, assurance, guaranty or inducement\nwith respect to the infringement of patents or other rights of others. 4. REMEDY FOR BREACH. Each receiving party acknowledges that the roprietary\nInformation of the disclosing party is central to the disclosing party's business and was developed by or for the disclosing party at a significant cost. Each\nreceiving party further acknowledges that damages would not be an adequate remedy for any breach of this Agreement by the receiving party or its\nRepresentatives and that the disclosing party may obtain injunctive or other equitable relief to remedy or prevent any breach or threatened breach of this\nAgreement by the receiving party or any of its Representatives. Such remedy shall not be deemed to be the exclusive remedy for .any such breach of this\nAgreement, but shall be in addition to all other remedies available at law or in equity to the disclosing party. 5. MISCELLANEOUS. a. This Agreement contains the\nentire understanding between Cyberlux and ICT and supersedes all prior written and ora understandings relating to the subject hereof. This Agreement may not\nbe modified except by a writing signed by both parties. b. The construction, interpretation and performance of this Agreement, as well as the legal relations of the\nparties arising hereunder, will be governed by and construed in accordance with the laws of the State of North Carolina. e. it is understood and agreed that no\nfailure or delay by either Cyberlux or ICT in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. No waiver of any terms or\nconditions of this Agreement shall be deemed to be a waiver of any subsequent breach of any term or condition. All waivers must be in writing and signed by the\nparty sought to be bound d. If any part of this Agreement shal be held unenforceable, the remainder of this Agreement wil nevertheless remain in ful force and\neffect. 3 IN WITNESS WHEREOF, each of the parties of this Agreement has caused this Agreement to be signed in its name and on its behalf by its\nrepresentative thereunto duly authorized as of the day and year first above written. Cyberlux Corporation By: /s/ Donald F. Evans\nDonald F.\nEvans resident International Consolidated Technologies By: /s/ im Goble 12/12/01\nim Goble Engineering and Tooling Manager	EX-10 6 ex10h.txt ICT, INC. AGREEMENT Cyberlux Corporation and International Consolidated Technologies MUTUAL NON DISCLOSURE AGREEMENT This\nMutual Non-Disclosure Agreement (the "Agreement") is made and entered into this 30th day of November, 2001 by and between Cyberlux Corporation\n("Cyberlux") with it principal place of business located at 50 Orange Road, PO Box 2010, Pinehurst, NC 28370 and International Consolidated Technologies\n("ICT"), with its principal place of business located at 400 West Delaware Casey, IL 62420. WHEREAS , Cyberlux and ICT intend to enter into discussions\nconcerning a business relationship whereby ICT will provide Cyberlux with certain services; NOW, THEREFORE , the parties hereto agree as follows: 1.\nPROPRIETARY INFORMATION. For purposes of this Agreement, "Proprietary Information" shall mean written, documentary or oral information of any kind\ndisclosed by Cyberlux or ICT to the other and designated as proprietary information, including, but not limited to, (a) information of a business, planning,\nmarketing or technical nature, (b) models, tools, hardware and software, and (c) any documents, reports, memoranda, notes, files or analyses prepared by or on\nbehalf of the receiving party that contain, summarize or are based upon any Proprietary Information, provided that "Proprietary Information" shall not include\ninformation which: (i) is publicly available prior to the date of this Agreement; (ii) becomes publicly available after the date of this Agreement trough no wrongful\nact of the receiving party; (iii) is furnished to others by the disclosing party without similar restrictions on their right to use or disclose; (iv) is known by the receiving\nparty without any proprietary restrictions at the time of receipt of such information from the disclosing party or becomes rightfully known to the receiving party\nwithout proprietary restrictions from a source other than the disclosing party; (v) is independently developed by the receiving party by persons who did not have\naccess, directly or indirectly, to the proprietary Information; or /1/ (vi) is obligated to be produced under order of a court of competent jurisdiction or a valid\nadministrative or congressional subpoena, provided that the receiving party promptly notifies the disclosing party of such event so that the disclosing party may\nseek an appropriate protective order or waive compliance by the receiving party with the terns of this Agreement. 2. CONFIDENTIALITY a. The receiving party\nshall protect all of the disclosing party's Proprietary Information as confidential information and, except with the prior written consent of the disclosing party or as\notherwise specifically provided herein, shall. not disclose, copy or distribute such Proprietary Information to any other individual, corporation or entity for a period\nof three (3) years from the date of disclosure. b. Except in connection with any joint project between Cyberlux and ICT, the receiving party shall not make any use\nof the disclosing party's Proprietary Information for is own benefit or for the benefit of any other individual, corporation or entity. c. The receiving party shall not\ndisclose all or any part of the disclosing party's Proprietary Information to any affiliates, agents, officers, directors, employees or representatives (collectively,\n"Representatives") of the receiving party except on a need-to-know basis. The receiving party agrees to inform any of its Representatives who receive the\ndisclosing parts Proprietary Information of the confidential and proprietary nature thereof and of such Representative's obligations with respect to the\nmaintenance of such Proprietary Information in conformance with the terms of this Agreement. d. Each party shall maintain the other party's Proprietary\nInformation with at least the same degree of care each party uses to maintain its own proprietary information. Each party represents that such degree of care\nprovides adequate protection for its own proprietary information. e. The receiving party shall immediately advise the disclosing party in writing of any\nmisappropriation or misuse by any person of the disclosing party's Proprietary Information of which the receiving party is aware. f. Any documents or materials\nthat are furnished by or on behalf of the disclosing party, and all other Proprietary Information in whatever form, including documents, reports, memoranda, notes,\nfiles or analyses prepared by or on behalf of the receiving party, including all copies of such materials, shall be promptly returned by the receiving party to the\ndisclosing party upon written request by the disclosing party for any reason. 2 3. NO LICENSES OR WARRANTIES . No license to the receiving party under any\ntrade secrets or patents or otherwise with respect to any of the Proprietary Information is granted or implied by conveying proprietary Information or other\ninformation to such party, and none of the information transmitted or exchanged shall constitute any representation, warranty, assurance , guaranty or inducement\nwith respect to the infringement of patents or other rights of others. 4. REMEDY FOR BREACH . Each receiving party acknowledges that the Proprietary\nInformation of the disclosing party is central to the disclosing party's business and was developed by or for the disclosing party at a significant cost. Each\nreceiving party further acknowledges that damages would not be an adequate remedy for any breach of this Agreement by the receiving party or its\nRepresentatives and that the disclosing party may obtain injunctive or other equitable relief to remedy or prevent any breach or threatened breach of this\nAgreement by the receiving party or any of its Representatives. Such remedy shall not be deemed to be the exclusive remedy for .any such breach of this\nAgreement, but shall be in addition to all other remedies available at law or in equity to the disclosing party. 5. MISCELLANEOUS . a. This Agreement contains the\nentire understanding between Cyberlux and ICT and supersedes all prior written and oral understandings relating to the subject hereof. This Agreement may not\nbe modified except by a writing signed by both parties. b. The construction, interpretation and performance of this Agreement, as well as the legal relations of the\nparties arising hereunder, will be governed by and construed in accordance with the laws of the State of North Carolina. e. It is understood and agreed that no\nfailure or delay by either Cyberlux or ICT in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. No waiver of any terms or\nconditions of this Agreement shall be deemed to be a waiver of any subsequent breach of any term or condition. All waivers must be in writing and signed by the\nparty sought to be bound d. If any part of this Agreement shall be held unenforceable, the remainder of this Agreement will nevertheless remain in full force and\neffect. 3 IN WITNESS WHEREOF, each of the parties of this Agreement has caused this Agreement to be signed in its name and on its behalf by its\nrepresentative thereunto duly authorized as of the day and year first above written. Cyberlux Corporation By: /s/ Donald F. Evans ---------------------- Donald F.\nEvans President International Consolidated Technologies By: /s/ Jim Goble 12/12/01 ---------------------------- Jim Goble Engineering and Tooling Manager
+84afa3f5024fd16b8b1a0d197f3c786a.pdf	effective_date jurisdiction party	EXHIBIT 10.1\nEXECUTION COPY\nEMPLOYEE NONCOMPETITION\nAND CONFIDENTIALITY AGREEMENT\nTHIS EMPLOYEE NON-COMPETITION AND CONFIDENTIALITY AGREEMENT (“Agreement”) is\neffective on August 5, 2019, by and between Apogee Enterprises, Inc. (“Apogee”) and Brent C. Jewell, who\nresides at 3165 Lake Shore Boulevard, Minnetonka, Minnesota 55491 (“Employee”).\nWHEREAS, Apogee has offered a promotion to Employee to become President of the Architectural Framing\nSystems segment (“Promotion”) effective August 5, 2019; and\nWHEREAS, if Employee accepts this Promotion, he will receive a $49,000 increase in base salary and an\naward of an additional 10,000 shares of restricted Apogee stock; and\nWHEREAS, prior to accepting this Promotion Employee was informed that as a condition of the Promotion,\nhe would be required to agree to restrictions on competition and the use of confidential information; and\nWHEREAS, Apogee and Employee acknowledge that Apogee’s business is highly competitive and will be\nsubstantially harmed in the competitive marketplace if the relationships they develop with vendors and\ncustomers is used to the detriment of Apogee, or Apogee Members, or to the benefit of others; and\nWHEREAS, Apogee’s business includes confidential information which is protected and kept secret by\nApogee and Apogee will be substantially harmed in the competitive marketplace if the confidential information\nis used to its detriment or to the benefit of others; and\nWHEREAS, Apogee desires reasonable protection of its confidential business and technical information and\nrelationships, which have been and will be acquired and is being developed by Apogee, at substantial expense;\nand\nWHEREAS, the Employee understands and agrees that he will fill a very important role at Apogee and is\nwilling to enter into restrictions on competition in exchange for the consideration provided hereunder.\nNOW THEREFORE, in consideration of the foregoing, of the mutual promises herein contained, and of other\ngood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties\nhereto, intending legally to be bound, hereby agree as follows:\n1. Adoption of Recitals. The parties adopt and incorporate the above Recitals into this Agreement.\n2.\nTerm of Agreement. This Agreement shall commence on the effective date above written. It shall\nsurvive termination of the Employee’s employment with Apogee or an Apogee Member for any reason.\n1\nEXECUTION COPY\n3.\nConsideration.\nEmployee acknowledges that Employee has had an opportunity to review this\nAgreement, and Employee understands that the Promotion is conditioned upon Employee’s acceptance of the\nterms herein. Employee further agrees that Employee has received independent, adequate and sufficient\nconsideration to which Employee is not otherwise entitled, for Employee’s agreement to, and acceptance of,\nthe terms herein.\n4. Apogee Member. As used herein, the terms “Apogee Member” and “Apogee Members” shall include\nany corporation which is at any time a parent or direct or indirect subsidiary of Apogee, or any corporation or\nentity which is an affiliate of Apogee by virtue of Apogee owning more than five percent (5%) of the entity or\nthe entity owning more than five percent (5%) of Apogee. “Apogee Member” shall include, but not be limited\nto, the following entities that are owned in part by Apogee or which own part of Apogee, and which share\nConfidential Information among themselves: Apogee Enterprises, Inc., Alumicor Limited, Apogee Wausau\nGroup, Inc. (including Linetec and Wausau Window and Wall Systems), EFCO Corporation, Glassec Vidros\nde Seguranca Ltda., Harmon, Inc., Sotawall Limited, Tru Vue, Inc., Tubelite Inc., Velocity, and Apogee\nCompany, Viracon, Inc. and Viracon Georgia, Inc. All Apogee Members are intended third party beneficiaries\nof this Agreement.\n5.\nEmployee Covenants.\nIn recognition of the fact that, as a result of Employee’s employment by\nApogee or an Apogee Member, Employee has had or will have access to and gain knowledge of highly\nconfidential or proprietary information or trade secrets pertaining to Apogee and Apogee Members, as well as\nthe customers, suppliers, joint ventures, licensors, licensees, distributors or other persons and entities with\nwhom Apogee and any Apogee Member does business (“Confidential Information”), which Apogee and\nApogee Members have expended time, resources and money to obtain or develop and which have significant\nvalue to Apogee and Apogee Members, Employee agrees for the benefit of Apogee and Apogee Members, and\nas a material condition to Employee’s Promotion, as follows.\n(a) Non-Disclosure of Confidential Information. Employee acknowledges that Employee will receive\naccess or have received access to Confidential Information about Apogee and Apogee Members, that\nthis information was obtained or developed by Apogee and Apogee Members at great expense and is\nzealously guarded by Apogee and Apogee Members from unauthorized disclosure and that\nEmployee’s possession of this special knowledge is due solely to Employee’s employment with\nApogee or one or more Apogee Members. In recognition of the foregoing, Employee will not at any\ntime during employment or following termination of employment for any reason, disclose, use or\notherwise make available to any third party any Confidential Information relating to Apogee or any\nApogee Member’s business, products, services, customers, vendors or suppliers; trade secrets, data,\nspecifications, developments, inventions and research activity; marketing and sales strategies,\ninformation and techniques; long and short term plans; existing and prospective client, vendor,\nsupplier and employee lists, contacts and information; financial, personnel and information system\ninformation and applications; and any other information concerning the business of Apogee or any\nApogee Member which is not disclosed to the general public or known in the industry, except for\ndisclosure necessary in the course of Employee’s duties or with the express written consent\n2\nEXECUTION COPY\nof Apogee or an Apogee Member. All Confidential Information, including all copies, notes\nregarding, and replications of such Confidential Information will remain the sole property of Apogee\nor any Apogee Member, as applicable, and must be returned to Apogee or Apogee Members\nimmediately upon termination of Employee’s employment.\n(b) Return of Property. Upon termination of employment with Apogee or any Apogee Member, or at\nany other time at the request of Apogee or an Apogee Member, Employee shall deliver to a\ndesignated Apogee or an Apogee Member representative all records, documents, hardware, software\nand all other property of Apogee and Apogee Members and all copies of such property in\nEmployee’s possession. Employee acknowledges and agrees that all such materials are the sole\nproperty in Employee’s possession. Employee acknowledges and agrees that all such materials are\nthe sole property of Apogee and Apogee Members and that Employee will certify in writing to\nApogee or any Apogee Member at the time of delivery, whether upon termination or otherwise, that\nEmployee has complied with this obligation.\n(c) Non-Solicitation of Existing or Prospective Customers, Vendors and Suppliers.\nEmployee\nspecifically acknowledges that the Confidential Information described in Section 5 includes\nconfidential data pertaining to existing and prospective customers, vendors and suppliers of Apogee\nand Apogee Members; that such data is a valuable and unique asset of the business of Apogee and\nApogee Members; and that the success or failure of their businesses depends upon their ability to\nestablish and maintain close and continuing personal contacts and working relationships with such\nexisting and prospective customers, vendors, and suppliers and to develop proposals which are\nspecific to such existing and prospective customers, vendors, and suppliers. Therefore, during\nEmployee’s employment with Apogee or any Apogee Member and for the eighteen (18) months\nfollowing Employee’s employment termination date, Employee agrees that Employee will not,\nexcept on behalf of Apogee and Apogee Members, or with Apogee’s or an Apogee Member’s\nexpress written consent, solicit, approach, contact or attempt to solicit, approach or contact, either\ndirectly or indirectly, on Employee’s own behalf or on behalf of any other person or entity, any\nexisting or prospective customers, vendors, or suppliers of Apogee and Apogee Members with\nwhom Employee had contact or about whom Employee gained Confidential Information during\nEmployee’s employment with Apogee or any Apogee Members for the purpose of obtaining\nbusiness or engaging in any commercial relationship that would be competitive with the “Business\nof the Company” (as defined below in Section 5(e)(i)) or cause such customer, supplier, or vendor to\nmaterially change or terminate its business or commercial relationship with Apogee or any Apogee\nMember.\n(d) Non-Solicitation of Employees.\nEmployee specifically acknowledges that the Confidential\nInformation described in Section 5 also includes confidential data pertaining to employees and\nagents of Apogee or Apogee Members, and Employee further agrees that during Employee’s\nemployment with Apogee and\n3\nEXECUTION COPY\nApogee Members and for the eighteen (18) months following Employee’s employment termination\ndate, Employee will not, directly or indirectly, on Employee’s own behalf or on behalf of any other\nperson or entity, solicit, contact, approach, encourage, induce or attempt to solicit, contact, approach,\nencourage or induce any of the employees or agents of Apogee or any Apogee Member to terminate\ntheir employment or agency with Apogee or any Apogee Member.\n(e) Non-Competition.\nEmployee covenants and agrees that during Employee’s employment with\nApogee or any Apogee Member and for the eighteen (18) months following Employee’s\nemployment termination date, Employee will not, in any geographic market in which Employee\nworked on behalf of Apogee or any Apogee Member, or for which Employee had any sales,\nmarketing, operational, logistical or other management or oversight responsibility, engage in or\ncarry on, directly or indirectly, as an owner, employee, agent, associate, consultant, partner or in any\nother capacity, a business competitive with the Business of the Company.\ni. The “Business of the Company” shall mean any business in which Apogee or any Apogee\nMember was involved, or was investing in for the purpose of being involved, at any time within\nthe twenty-four (24) months preceding Employee’s employment termination date.\nii. To “engage in or carry on” shall mean to have ownership in any enterprise engaged in the\nBusiness of the Company (excluding ownership of up to 1% of the outstanding shares of a\npublicly traded company) or to consult, work in, direct or have responsibility for any area of the\nBusiness of the Company.\n(f) Remedies for Breach of These Covenants. Any breach of the covenants in this Section 5 likely will\ncause irreparable harm to Apogee and Apogee Members for which money damages could not\nreasonably or adequately compensate Apogee or Apogee Members. Accordingly, Apogee and any\nApogee Member shall be entitled to all forms of injunctive relief (whether temporary, emergency,\npreliminary, prospective or permanent) to enforce such covenants, in addition to damages and other\navailable remedies, and Employee consents to the issuance of such an injunction without the\nnecessity of Apogee or any Apogee Member posting a bond. In the event that injunctive relief or\ndamages are awarded to Apogee or any Apogee Member for any breach by Executive of this\nSection 5, Employee further agrees that Apogee or any Apogee Member shall be entitled to recover\nits costs and attorneys’ fees necessary to obtain such recovery. In addition, Employee agrees that\nupon Employee’s breach of any covenant in this Section 5, all unexercised options issued under any\nstock option plans of Apogee will immediately terminate and Apogee and/or an Apogee Member\nshall have the right to exercise any and all of the rights described above.\n4\nEXECUTION COPY\n6.\nAccounting of Profits. Employee covenants and agrees that if Employee shall violate any covenants\nor agreements in this Agreement, Apogee and/or the affected Apogee Member(s) shall be entitled to an\naccounting and repayment of all profits, compensation, commissions, remunerations or benefits which\nEmployee directly or indirectly has realized and/or may realize as a result of, growing out of, or in connection\nwith, any such violation; such remedy shall be in addition to, and not in limitation of, any injunctive relief or\nother rights or remedies to which Apogee or Apogee Members are or may be entitled at law or in equity or\nunder this Agreement.\n7. Reasonableness of Restrictions.\n(a) Employee has carefully read and considered the provisions of this Agreement and, having done\nso, agrees that the restrictions set forth therein (including, but not limited to, the time period of\nrestriction and the geographical areas of restriction) are fair and reasonable and are reasonably\nrequired for the protection of the interests of Apogee or Apogee Members, their officers,\ndirectors, shareholders and other employees.\n(b) The parties agree that Apogee and Apogee Members share confidential information with each\nother and may have relationships with entities that are suppliers, vendors or customers of\nApogee or an Apogee Member while being a competitor of the same, Apogee or another\nApogee Member.\n(c) In the event that, notwithstanding the foregoing, any part of the covenants set forth herein shall\nbe held to be invalid or unenforceable, the remaining parts thereof shall nevertheless continue to\nbe valid and enforceable as though the invalid or unenforceable parts had not been included\ntherein. In the event that any provision of Section 5 relating to time period and/or areas of\nrestriction shall be declared by a court of competent jurisdiction to exceed the maximum time\nperiod or areas such court deems reasonable and enforceable, the agreed upon time period\nand/or areas of restriction shall be deemed to become and thereafter be the maximum time\nperiod and/or areas which such court deems reasonable and enforceable.\n8.\nWaiver. In the event Apogee or any Apogee Member maintains an action, either at law, equity, or\nboth, to enforce this Agreement against Employee, Employee waives any right to maintain any of the following\ndefenses:\n(a) That this Agreement is not necessary for the protection of the goodwill of Apogee or any Apogee\nMember;\n(b)That this Agreement is overbroad in geographic scope or duration;\n(c) That this Agreement would impose an undue hardship upon the Employee;\n(d)That Apogee or any Apogee Member has an adequate remedy at law;\n5\nEXECUTION COPY\n(e) That this Agreement is not supported by adequate consideration; or\n(f) That Apogee or any Apogee Member failed to take adequate safeguards to protect the confidentiality\nof the information.\n9.\nBurden and Benefit/Assigns. The Employee may not transfer or assign this Agreement or any of the\nEmployee’s rights or obligations hereunder. Apogee or any Apogee Member may transfer or assign this\nAgreement or any of its rights or obligations hereunder with or without notice to the Employee, and this\nAgreement shall automatically inure to the benefit of Apogee or any Apogee Members and their respective\nheirs, personal and legal representatives, successors and assigns.\n10. Survival. Employee’s obligations under this Agreement shall survive termination of the Agreement\nand the employment relationship, regardless of the circumstances of termination of the employment\nrelationship.\n11.\nEmployment At Will.\nThis Agreement does not alter the at will nature of the employment\nrelationship between Employee and Apogee or any Apogee Member and Employee. Both parties understand\nthat either party may end the employment relationship at any time, for any reason, without notice. Employee\nhas no right to continued employment with Apogee or any Apogee Member.\n12. Entire Agreement. This Agreement contains the entire agreement and understanding by and between\nEmployee and Apogee and/or any Apogee Member with respect to the subject matter hereof, except that any\nchange in control agreement to which Employee is signatory shall continue in full force and effect. No\nrepresentations, promises, agreements or understandings, written or oral, not herein contained shall be of any\nforce or effect. Notwithstanding the above, if Employee is a party to a change in control agreement, it is\nunderstood and agreed that Employee is subject to the covenants described in such change in control\nagreement, despite the shorter duration of such covenants in this Agreement. The covenants described in any\napplicable change in control agreement shall continue for the entire period stated therein, regardless of the\nexpiration of the covenant periods described in this Agreement.\n13. Modification; Waiver. No change or modification hereof shall be valid or binding unless the same is\nin writing and signed by the party intended to be bound. No waiver of any provision of this Agreement shall be\nvalid unless the same is in writing and signed by the party against whom such waiver is sought to be enforced;\nmoreover, no valid waiver of any provision of this Agreement at any time shall be deemed a waiver of any\nother provision of this Agreement at such time or will be deemed a valid waiver of such provision at any other\ntime. Any delay or failure to enforce any provision of this Agreement by Apogee or any Apogee Member shall\nalso not constitute a waiver of the right to enforce any part of this Agreement.\n14. Voluntary Action. Employee enters into this Agreement knowingly and voluntarily and after having\nhad an opportunity to consult with legal counsel if desired.\n15. Construction. It is the intention of the parties hereto that Apogee or any Apogee Members be given\nthe broadest possible protection respecting its confidential information and\n6\nEXECUTION COPY\nrespecting competition by Employee following Employee’s separation from Apogee or any Apogee Member.\nTherefore, if any portion of this Agreement is deemed overbroad by a court of competent jurisdiction, it is the\nparties’ intention that it be redrawn to fit the broadest possible geographic and temporal limitations allowed by\nlaw. The parties intend and agree that this Agreement not be construed or interpreted in favor of either party\nbased upon who drafted its provisions.\n16. Governing Law. This Agreement will be construed and governed in accordance with the laws of the\nState of Minnesota, its conflicts of laws principles notwithstanding.\n17.\nJurisdiction. For the purpose of resolving conflicts related to or arising out of this Agreement, the\nparties hereby expressly consent to the jurisdiction of the courts of Minnesota and such other courts as\npermitted under the Federal Defend Trade Secrets Act. Employee consents to personal jurisdiction in the State\nof Minnesota.\n[The remainder of this page has been left blank intentionally. Signature page attached.]\n7\nEXECUTION COPY\nIN WITNESS WHEREOF, Apogee and Employee have duly executed this Agreement under seal as of the day\nand year first above written.\nDate:\n8/5/19\nAPOGEE ENTERPRISES, INC.\nBy:/s/ Curtis J. Dobler\nIts:Executive Vice President Human Resources\nEMPLOYEE\nDate:\n8/5/19\n/s/ Brent C. Jewell\nBrent C. Jewell\n8	EXHIBIT 10.1\nEXECUTION COPY\nEMPLOYEE NONCOMPETITION\nAND CONFIDENTIALITY AGREEMENT\nTHIS EMPLOYEE NON-COMPETITION AND CONFIDENTIALITY AGREEMENT (”Agreement”) is\neffective on August 5, 2019, by and between Apogee Enterprises, Inc. (”Apogee”) and Brent C. Jewell, who\nresides at 3165 Lake Shore Boulevard, Minnetonka, Minnesota 55491 (”Employee”).\nWHEREAS, Apogee has offered a promotion to Employee to become President of the Architectural Framing\nSystems segment (”Promotion”) effective August 5, 2019; and\nWHEREAS, if Employee accepts this Promotion, he will receive a $49,000 increase in base salary and an\naward of an additional 10,000 shares of restricted Apogee stock; and\nWHEREAS, prior to accepting this Promotion Employee was informed that as a condition of the Promotion,\nhe would be required to agree to restrictions on competition and the use of confidential information; and\nWHEREAS, Apogee and Employee acknowledge that Apogee’s business is highly competitive and will be\nsubstantially harmed in the competitive marketplace if the relationships they develop with vendors and\ncustomers is used to the detriment of Apogee, orApogee Members, or to the benefit of others; and\nWHEREAS, Apogee’s business includes confidential information which is protected and kept secret by\nApogee and Apogee will be substantially harmed in the competitive marketplace if the confidential information\nis used to its detriment or to the benefit of others; and\nWHEREAS, Apogee desires reasonable protection of its confidential business and technical information and\nrelationships, which have been and will be acquired and is being developed by Apogee, at substantial expense;\nand\nWHEREAS, the Employee understands and agrees that he will fill a very important role at Apogee and is\nwilling to enter into restrictions on competition in exchange for the consideration provided hereunder.\nNOW THEREFORE, in consideration of the foregoing, of the mutual promises herein contained, and of other\ngood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties\nhereto, intending legally to be bound, hereby agree as follows:\n1. Adoption of Recitals. The parties adopt and incorporate the above Recitals into this Agreement.\n2. Term of Agreement. This Agreement shall commence on the effective date above written. It shall\nsurvive termination of the Employee’ s employment with Apogee or an Apogee Member for any reason.\n \nEXECUTION COPY\n3. Consideration. Employee acknowledges that Employee has had an opportunity to review\nAgreement, and Employee understands that the Promotion is conditioned upon Employee’s acceptance of the\nterms herein. Employee further agrees that Employee has received independent, adequate and sufficient\nconsideration to which Employee is not otherwise entitled, for Employee’s agreement to, and acceptance of,\nthe terms herein.\n4. Apogee Member. As used herein, the terms ”A pogee Member” and ”Apogee Members” shall include\nany corporation which is at any time a parent or direct or indirect subsidiary of Apogee, or any corporation or\nentity which is an affiliate of Apogee by virtue of Apogee owning more than five percent (5%) of the entity or\nthe entity owning more than five percent (5%) of Apogee. ”Apogee Member” shall include, but not be limited\nto, the following entities that are owned in part by Apogee or which own part of Apogee, and which share\nConfidential Information among themselves: Apogee Enterprises, Inc., Alumicor Limited, Apogee Wausau\nGroup, Inc. (including Linetec and Wausau Window and Wall Systems), EECO Corporation, Glassec Vidros\nde Seguranca Ltda., Harmon, Inc., Sotawall Limited, Tru Vue, Inc., Tubelite Inc., Velocity, and Apogee\nCompany, Viracon, Inc. and Viracon Georgia, Inc. All Apogee Members are intended third party beneficiaries\nof this Agreement.\n5. Employee Covenants. In recognition of the fact that, as a result of Employee’s employment by\nApogee or an Apogee Member, Employee has had or will have access to and gain knowledge of highly\nconfidential or proprietary information or trade secrets pertaining to Apogee and Apogee Members, as well as\nthe customers, suppliers, joint ventures, licensors, licensees, distributors or other persons and entities with\nwhom Apogee and any Apogee Member does business (”Confidential Information”), which Apogee and\nApogee Members have expended time, resources and money to obtain or develop and which have significant\nvalue to Apogee and Apogee Members, Employee agrees for the benefit of Apogee and Apogee Members, and\nas a material condition to Employee’s Promotion, as follows.\n(a) Non-Disclosure of Confidential Information. Employee acknowledges that Employee will receive\naccess or have received access to Confidential Information about Apogee and Apogee Members, that\nthis information was obtained or developed by Apogee and Apogee Members at great expense and is\nzealously guarded by Apogee and Apogee Members from unauthorized disclosure and that\nEmployee’s possession of this special knowledge is due solely to Employee’s employment with\nApogee or one or more Apogee Members. In recognition of the foregoing, Employee will not at any\ntime during employment or following termination of employment for any reason, disclose, use or\notherwise make available to any third party any Confidential Information relating to Apogee or any\nApogee Member“ s business, products, services, customers, vendors or suppliers; trade secrets, data,\nspecifications, developments, inventions and research activity; marketing and sales strategies,\ninformation and techniques; long and short term plans; existing and prospective client, vendor,\nsupplier and employee lists, contacts and information; financial, personnel and information system\ninformation and applications; and any other information concerning the business of Apogee or any\nApogee Member which is not disclosed to the general public or known in the industry, except for\ndisclosure necessary in the course of Employee’s duties or with the express written consent\nV\nA\nO\nV\nV\n \nEXECUTION COPY\nof Apogee or an Apogee Member. All Confidential Information, including all copies, notes\nregarding, and replications of such Confidential Information will remain the sole property of Apogee\nor any Apogee Member, as applicable, and must be returned to Apogee or Apogee Members\nimmediately upon termination of Employee’ s employment.\nReturn of Propegy. Upon termination of employment with Apogee or any Apogee Member, or at\nany other time at the request of Apogee or an Apogee Member, Employee shall deliver to a\ndesignated Apogee or an Apogee Member representative all records, documents, hardware, software\nand all other property of Apogee and Apogee Members and all copies of such property in\nEmployee’s possession. Employee acknowledges and agrees that all such materials are the sole\nproperty in Employee’s possession. Employee acknowledges and agrees that all such materials are\nthe sole property of Apogee and Apogee Members and that Employee will certify in writing to\nApogee or any Apogee Member at the time of delivery, whether upon termination or otherwise, that\nEmployee has complied with this obligation.\nNon-Solicitation of Existing or Prospective Customers, Vendors and Suppliers. Employee specifically acknowledges that the Confidential Information described in Section 5 includes\nconfidential data pertaining to existing and prospective customers, vendors and suppliers of Apogee\nand Apogee Members; that such data is a valuable and unique asset of the business of Apogee and\nApogee Members; and that the success or failure of their businesses depends upon their ability to\nestablish and maintain close and continuing personal contacts and working relationships with such\nexisting and prospective customers, vendors, and suppliers and to develop proposals which are\nspecific to such existing and prospective customers, vendors, and suppliers. Therefore, during\nEmployee’s employment with Apogee or any Apogee Member and for the eighteen (18) months\nfollowing Employee’s employment termination date, Employee agrees that Employee will not,\nexcept on behalf of Apogee and Apogee Members, or with Apogee’s or an Apogee Members\nexpress written consent, solicit, approach, contact or attempt to solicit, approach or contact, either\ndirectly or indirectly, on Employee’s own behalf or on behalf of any other person or entity, any\nexisting or prospective customers, vendors, or suppliers of Apogee and Apogee Members with\nwhom Employee had contact or about whom Employee gained Confidential Information during\nEmployee’s employment with Apogee or any Apogee Members for the purpose of obtaining\nbusiness or engaging in any commercial relationship that would be competitive with the ”Business\nof the Company” (as defined below in Section 5(e)(i)) or cause such customer, supplier, or vendor to\nmaterially change or terminate its business or commercial relationship with Apogee or any Apogee\nMember.\nNon-Solicitation of Employees. Employee specifically acknowledges that the Confidential Information described in Section 5 also includes confidential data pertaining to employees and\nagents of Apogee or Apogee Members, and Employee further agrees that during Employee’s\nemployment with Apogee and\nV\n \nEXECUTION COPY\nApogee Members and for the eighteen (18) months following Employee’s employment termination\ndate, Employee will not, directly or indirectly, on Employee’s own behalf or on behalf of any other\nperson or entity, solicit, contact, approach, encourage, induce or attempt to solicit, contact, approach,\nencourage or induce any of the employees or agents of Apogee or any Apogee Member to terminate\ntheir employment or agency with Apogee or any Apogee Member.\nNon-Competition. Employee covenants and agrees that during Employee’s employment with\nApogee or any Apogee Member and for the eighteen (18) months following Employee’s\nemployment termination date, Employee will not, in any geographic market in which Employee\nworked on behalf of Apogee or any Apogee Member, or for which Employee had any sales,\nmarketing, operational, logistical or other management or oversight responsibility, engage in or\ncarry on, directly or indirectly, as an owner, employee, agent, associate, consultant, partner or in any\nother capacity, a business competitive with the Business of the Company.\ni. The ”Business of the Company” shall mean any business in which Apogee or any Apogee\nMember was involved, or was investing in for the purpose of being involved, at any time within\nthe twenty-four (24) months preceding Employee’ 3 employment termination date.\nii. To ”engage in or cam on” shall mean to have ownership in any enterprise engaged in the\nBusiness of the Company (excluding ownership of up to 1% of the outstanding shares of a\npublicly traded company) or to consult, work in, direct or have responsibility for any area of the\nBusiness of the Company.\nRemedies for Breach of These Covenants. Any breach of the covenants in this Section 5 likely will\ncause irreparable harm to Apogee and Apogee Members for which money damages could not\nreasonably or adequately compensate Apogee or Apogee Members. Accordingly, Apogee and any\nApogee Member shall be entitled to all forms of injunctive relief (whether temporary, emergency,\npreliminary, prospective or permanent) to enforce such covenants, in addition to damages and other\navailable remedies, and Employee consents to the issuance of such an injunction without the\nnecessity of Apogee or any Apogee Member posting a bond. In the event that injunctive relief or\ndamages are awarded to Apogee or any Apogee Member for any breach by Executive of this\nSection 5, Employee further agrees that Apogee or any Apogee Member shall be entitled to recover\nits costs and attorneys’ fees necessary to obtain such recovery. In addition, Employee agrees that\nupon Employee’s breach of any covenant in this Section 5, all unexercised options issued under any\nstock option plans of Apogee will immediately terminate and Apogee and/or an Apogee Member\nshall have the right to exercise any and all of the rights described above.\n4\n \n6. Accounting of Profits. EXECUTION COPY\nor agreements in this Agreement, Apogee and/or the affected Apogee Member(s) shall be entitled to an accounting and repayment of all profits, compensation, commissions, remunerations or benefits which Employee directly or indirectly has realized and/or may realize as a result of, growing out of, or in connection with, any such violation; such remedy shall be in addition to, and not in limitation of, any injunctive relief or other rights or remedies to which Apogee or Apogee Members are or may be entitled at law or in equity or under this A greement. 7. Reasonableness of Restrictions. (a)\nEmployee has carefully read and considered the provisions of this Agreement and, having done\nso, agrees that the restrictions set forth therein (including, but not limited to, the time period of\nrestriction and the geographical areas of restriction) are fair and reasonable and are reasonably\nrequired for the protection of the interests of Apogee or Apogee Members, their officers,\ndirectors, shareholders and other employees.\nThe parties agree that Apogee and Apogee Members share confidential information with each\nother and may have relationships with entities that are suppliers, vendors or customers of\nApogee or an Apogee Member while being a competitor of the same, Apogee or another\nApogee Member.\nIn the event that, notwithstanding the foregoing, any part of the covenants set forth herein shall\nbe held to be invalid or unenforceable, the remaining parts thereof shall nevertheless continue to\nbe valid and enforceable as though the invalid or unenforceable parts had not been included\ntherein. In the event that any provision of Section 5 relating to time period and/or areas of\nrestriction shall be declared by a court of competent jurisdiction to exceed the maximum time\nperiod or areas such court deems reasonable and enforceable, the agreed upon time period\nand/or areas of restriction shall be deemed to become and thereafter be the maximum time\nperiod and/or areas which such court deems reasonable and enforceable.\n8. Waiver. In the event Apogee or any Apogee Member maintains an action, either at law, equity, both, to enforce this Agreement against Employee, Employee waives any right to maintain any of the following defenses:\n(a) That this Agreement is not necessary for the protection of the goodwill of Apogee or any Apogee Member; (b)That this Agreement is overbroad in geographic scope or duration; (c) That this Agreement would impose an undue hardship upon the Employee; Employee covenants and agrees that if Employee shall violate any covenants\f(d)That Apogee or any Apogee Member has an adequate remedy at law;\n5\n \nEXECUTION COPY\n(e) That this Agreement is not supported by adequate consideration; or\n(f) That Apogee or any Apogee Member failed to take adequate safeguards to protect the confidentiality\nof the information.\n9. Burden and Benefit/A ssigr_rs. The Employee may not transfer or assign this Agreement or any of the\nEmployee’s rights or obligations hereunder. Apogee or any Apogee Member may transfer or assign this\nAgreement or any of its rights or obligations hereunder with or without notice to the Employee, and this\nAgreement shall automatically inure to the benefit of Apogee or any Apogee Members and their respective\nheirs, personal and legal representatives, successors and assigns.\n10. Survival. Employee’s obligations under this Agreement shall survive termination of the Agreement\nand the employment relationship, regardless of the circumstances of termination of the employment\nrelationship.\n11. Employment At Will. This Agreement does not alter the at will nature of the employm\nrelationship between Employee and Apogee or any Apogee Member and Employee. Both parties understand\nthat either party may end the employment relationship at any time, for any reason, without notice. Employee\nhas no right to continued employment with Apogee or any Apogee Member.\n12. Entire Agreement. This Agreement contains the entire agreement and understanding by and between\nEmployee and Apogee and/or any Apogee Member with respect to the subject matter hereof, except that any\nchange in control agreement to which Employee is signatory shall continue in full force and effect. No\nrepresentations, promises, agreements or understandings, written or oral, not herein contained shall be of any\nforce or effect. Notwithstanding the above, if Employee is a party to a change in control agreement, it is\nunderstood and agreed that Employee is subject to the covenants described in such change in control\nagreement, despite the shorter duration of such covenants in this Agreement. The covenants described in any\napplicable change in control agreement shall continue for the entire period stated therein, regardless of the\nexpiration of the covenant periods described in this Agreement.\n13. Modification' Waiver. No change or modification hereof shall be valid or binding unless the same is\nin writing and signed by the party intended to be bound. No waiver of any provision of this Agreement shall be\nvalid unless the same is in writing and signed by the party against whom such waiver is sought to be enforced;\nmoreover, no valid waiver of any provision of this Agreement at any time shall be deemed a waiver of any\nother provision of this Agreement at such time or will be deemed a valid waiver of such provision at any other\ntime. Any delay or failure to enforce any provision of this Agreement by Apogee or any Apogee Member shall\nalso not constitute a waiver of the right to enforce any part of this Agreement.\n \n14. Voluntary Action. Employee enters into this Agreement knowingly and voluntarily and after having\nhad an opportunity to consult with legal counsel if desired.\n15. Construction. It is the intention of the parties hereto that Apogee or any Apogee Members be given\nthe broadest possible protection respecting its confidential information and\n \nEXECUTION COPY\nrespecting competition by Employee following Employee’s separation from Apogee or any Apogee Member.\nTherefore, if any portion of this Agreement is deemed overbroad by a court of competent jurisdiction, it is the\nparties’ intention that it be redrawn to fit the broadest possible geographic and temporal limitations allowed by\nlaw. The parties intend and agree that this Agreement not be construed or interpreted in favor of either party\nbased upon who drafted its provisions.\n16. Governing Law. This Agreement will be construed and governed in accordance with the laws of the\nState of Minnesota, its conflicts of laws principles notwithstanding.\n17. |urisdiction. For the purpose of resolving conflicts related to or arising out of this Agreement, the\nparties hereby expressly consent to the jurisdiction of the courts of Minnesota and such other courts as\npermitted under the Federal Defend Trade Secrets Act. Employee consents to personal jurisdiction in the State\nof Minnesota.\n[The remainder of this page has been left blank intentionally. Signature page attached]\n \nEXECUTION COPY\nIN WITNESS WHEREOF, Apogee and Employee have duly executed this Agreement under seal as of the day\nand year first above written.\nDate: 8/5/19 APOGEE ENTERPRISES, INC.\nByfs/ Curtis]. Dobler\nIts:Executive Vice President Human Resources\nEMPL OY EE\nDate: 8/5/ 19\n/s/ Brent C. Jewell\nren . ewe	EXHIBIT 10.1\nEXECUTION COPY\nEMPLOYEE NONCOMPETITION\nAND CONFIDENTIALITY AGREEMENT\nTHIS EMPLOYEE NON-COMPETITION AND CONFIDENTIALITY AGREEMENT Agreement") is\neffective on August 5, 2019, by and between Apogee Enterprises, Inc. ("Apogee") and Brent C. Jewell, who\nresides at 3165 Lake Shore Boulevard, Minnetonka, Minnesota 55491 ("Employee").\nWHEREAS, A pogee has offered a promotion to Employee to become President of the Architectural Framing\nSystems segment ("Promotion") effective ugust 5, 2019; and\nWHEREAS, if Employee accepts this Promotion, he will receive a $49,000 increase in base salary and an\naward of an additional 10,000 shares of restricted Apogee stock; and\nWHEREAS, prior to accepting this Promotion Employee was informed that as a condition of the Promotion,\nhe would be required to agree to restrictions on competition and the use of confidential information; and\nWHEREAS, pogee and Employee acknowledge that Apogee's business is highly competitive and will be\nsubstantially harmed in the competitive marketplace if the relationships they develop with vendors and\ncustomers is used to the detriment of Apogee, or A pogee Members, or to the benefit of others; and\nWHEREAS, Apogee's business includes confidential information which is protected and kept secret by\nA pogee and A pogee will be substantially harmed in the competitive marketplace if the confidential information\nis used to its detriment or to the benefit of others; and\nWHEREAS, A pogee desires reasonable protection of its confidential business and technical information and\nrelationships, which have been and will be acquired and is being developed by Apogee, at substantial expense;\nand\nWHEREAS, the Employee understands and agrees that he will fill a very important role at Apogee and is\nwilling to enter into restrictions on competition in exchange for the consideration provided hereunder.\nNOW THEREFORE, in consideration of the foregoing, of the mutual promises herein contained, and of other\ngood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties\nhereto, intending legally to be bound, hereby agree as follows:\n1.\nAdoption of Recitals. The parties adopt and incorporate the above Recitals into this A greement.\n2.\nTerm of Agreement. This A greement shall commence on the effective date above written. It shall\nsurvive termination of the Employee's employment with Apogee or an A pogee Member for any reason.\n1\nEXECUTION COPY\n3.\nConsideration.\nEmployee acknowledges that Employee has had an opportunity to review\nA greement, and Employee understands that the Promotion is conditioned upon Employee's acceptance of the\nterms herein. Employee further agrees that Employee has received independent, adequate and sufficient\nconsideration to which Employee is not otherwise entitled, for Employee's agreement to, and acceptance of,\nthe terms herein.\n4.\nApogee Member. As used herein, the terms Apogee Member" and Apogee Members" shall include\nany corporation which is at any time a parent or direct or indirect subsidiary of Apogee, or any corporation or\nentity which is an affiliate of Apogee by virtue of Apogee owning more than five percent (5%) of the entity or\nthe entity owning more than five percent (5%) of Apogee. Apogee Member" shall include, but not be limited\nto, the following entities that are owned in part by pogee or which own part of A pogee, and which share\nConfidential Information among themselves: Apogee Enterprises, Inc., Alumicor Limited pogee ausau\nGroup, Inc. (including Linetec and Wausau Window and Wall Systems), EFCO Corporation, Glassec Vidros\nde Seguranca Ltda., Harmon, Inc., Sotawall Limited, Tru Vue, Inc., Tubelite Inc., Velocity, and Apogee\nCompany, Viracon, Inc. and Viracon Georgia, Inc. All pogee Members are intended third party beneficiaries\nof this Agreement.\n5.\nEmployee Covenants. In recognition of the fact that, as a result of Employee's employment by\nApogee or an Apogee Member, Employee has had or will have access to and gain knowledge of highly\nconfidential or proprietary information or trade secrets pertaining to pogee and Apogee Members, as well as\nthe customers, suppliers, joint ventures, licensors, licensees, distributors or other persons and entities with\nwhom Apogee and any Apogee Member does business ("Confidential Information"), which Apogee and\nApogee Members have expended time, resources and money to obtain or develop and which have significant\nvalue to Apogee and pogee Members, Employee agrees for the benefit of Apogee and pogee Members, and\nas a material condition to Employee's Promotion, as follows.\n(a) Non-Disclosure of Confidential Information. Employee acknowledges that Employee will receive\naccess or have received access to Confidential Information about A pogee and Apogee Members, that\nthis information was obtained or developed by Apogee and pogee Members at great expense and is\nzealously guarded by Apogee and Apogee Members from unauthorized disclosure and that\nEmployee's possession of this special knowledge is due solely to Employee's employment with\npogee or one or more Apogee Members. In recognition of the foregoing, Employee will not at any\ntime during employment or following termination of employment for any reason, disclose, use or\notherwise make available to any third party any Confidential Information relating to pogee or any\npogee Member's business, products, services, customers, vendors or suppliers; trade secrets, data,\nspecifications, developments, inventions and research activity; marketing and sales strategies,\ninformation and techniques; long and short term plans; existing and prospective client, vendor,\nsupplier and employee lists, contacts and information; financial, personnel and information system\ninformation and applications; and any other information concerning the business of Apogee or any\npogee Member which is not disclosed to the general public or known in the industry, except for\ndisclosure necessary in the course of Employee's duties or with the express written consent\n2\nEXECUTION COPY\nof Apogee or an Apogee Member. All Confidential Information, including all copies, notes\nregarding, and replications of such Confidential Information will remain the sole property of Apogee\nor any pogee Member, as applicable, and must be returned to Apogee or Apogee Members\nimmediately upon termination of Employee's employment.\n(b) Return of Property. Upon termination of employment with Apogee or any pogee Member, or at\nany other time at the request of Apogee or an Apogee Member, Employee shall deliver to a\ndesignated pogee or an Apogee Member representative all records, documents, hardware, software\nand all other property of Apogee and Apogee Members and all copies of such property in\nEmployee's possession. Employee acknowledges and agrees that all such materials are the sole\nproperty in Employee's possession. Employee acknowledges and agrees that all such materials are\nthe sole property of Apogee and Apogee Members and that Employee will certify in writing to\nA pogee or any Apogee Member at the time of delivery, whether upon termination or otherwise, that\nEmployee has complied with this obligation.\n(c) Non-Solicitation of Existing or Prospective Customers, Vendors and Suppliers.\nEmployee\nspecifically acknowledges that the Confidential Information described in Section 5 includes\nconfidential data pertaining to existing and prospective customers, vendors and suppliers of Apogee\nand Apogee Members; that such data is a valuable and unique asset of the business of Apogee and\npogee Members; and that the success or failure of their businesses depends upon their ability to\nestablish and maintain close and continuing personal contacts and working relationships with such\nexisting and prospective customers, vendors, and suppliers and to develop proposals which are\nspecific to such existing and prospective customers, vendors, and suppliers. Therefore, during\nEmployee's employment with Apogee or any Apogee Member and for the eighteen (18) months\nfollowing Employee's employment termination date, Employee agrees that Employee will not,\nexcept on behalf of Apogee and Apogee Members, or with Apogee's or an Apogee Member's\nexpress written consent, solicit, approach, contact or attempt to solicit, approach or contact, either\ndirectly or indirectly, on Employee's own behalf or on behalf of any other person or entity, any\nexisting or prospective customers, vendors, or suppliers of Apogee and Apogee Members with\nwhom Employee had contact or about whom Employee gained Confidential Information during\nEmployee's employment with Apogee or any Apogee Members for the purpose of obtaining\nbusiness or engaging in any commercial relationship that would be competitive with the "Business\nof the Company" (as defined below in Section 5(e)(i)) or cause such customer, supplier, or vendor to\nmaterially change or terminate its business or commercial relationship with pogee or any Apogee\nMember.\n(d) Non-Solicitation of Employees.\nEmployee specifically acknowledges that the Confidential\nInformation described in Section 5 also includes confidential data pertaining to employees and\nagents of Apogee or Apogee Members, and Employee further agrees that during Employee's\nemployment with Apogee and\n3\nEXECUTION COPY\nApogee Members and for the eighteen (18) months following Employee's employment termination\ndate, Employee will not, directly or indirectly, on Employee's own behalf or on behalf of any other\nperson or entity, solicit, contact, approach, encourage, induce or attempt to solicit, contact, approach,\nencourage or induce any of the employees or agents of A pogee or any Apogee Member to terminate\ntheir employment or agency with Apogee or any Apogee Member.\n(e) Non-Competition.\nEmployee covenants and agrees that during Employee's employment with\nApogee or any Apogee Member and for the eighteen (18) months following Employee's\nemployment termination date, Employee will not, in any geographic market in which Employee\nworked on behalf of Apogee or any Apogee Member, or for which Employee had any sales,\nmarketing, operational, logistical or other management or oversight responsibility, engage in or\ncarry on, directly or indirectly, as an owner, employee, agent associate, consultant, partner or in any\nother capacity, a business competitive with the Business of the Company.\ni.\nThe "Business of the Company" shall mean any business in which Apogee or any pogee\nMember was involved or was investing in for the purpose of being involved, at any time within\nthe twenty-four (24) months preceding Employee's employment termination date.\nii. To "engage in or carry on" shall mean to have ownership in any enterprise engaged in the\nBusiness of the Company (excluding ownership of up to 1% of the outstanding shares of a\npublicly traded company) or to consult, work in, direct or have responsibility for any area of the\nBusiness of the Company.\n(f) Remedies for Breach of These Covenants. Any breach of the covenants in this Section 5 likely will\ncause irreparable harm to Apogee and Apogee Members for which money damages could not\nreasonably or adequately compensate Apogee or Apogee Members. ccordingly, A pogee and any\nApogee Member shall be entitled to all forms of injunctive relief (whether temporary, emergency,\npreliminary, prospective or permanent) to enforce such covenants, in addition to damages and other\navailable remedies, and Employee consents to the issuance of such an injunction without the\nnecessity of Apogee or any Apogee Member posting a bond. In the event that injunctive relief or\ndamages are awarded to Apogee or any Apogee Member for any breach by Executive of this\nSection 5, Employee further agrees that Apogee or any pogee Member shall be entitled to recover\nits costs and attorneys' fees necessary to obtain such recovery. In addition, Employee agrees that\nupon Employee's breach of any covenant in this Section 5, all unexercised options issued under any\nstock option plans of Apogee will immediately terminate and Apogee and/or an Apogee Member\nshall have the right to exercise any and all of the rights described above.\n4\nEXECUTION COPY\n6.\nAccounting of Profits. Employee covenants and agrees that if Employee shall violate any covenants\nor agreements in this Agreement, Apogee and/or the affected Apogee Member(s) shall be entitled to an\naccounting and repayment of all profits, compensation, commissions, remunerations or benefits which\nEmployee directly or indirectly has realized and/or may realize as a result of, growing out of, or in connection\nwith, any such violation; such remedy shall be in addition to, and not in limitation of, any injunctive relief or\nother rights or remedies to which pogee or A pogee Members are or may be entitled at law or in equity or\nunder this A greement\n7.\nReasonableness of Restrictions.\n(a) Employee has carefully read and considered the provisions of this Agreement and, having done\nso, agrees that the restrictions set forth therein (including, but not limited to, the time period of\nrestriction and the geographical areas of restriction) are fair and reasonable and are reasonably\nrequired for the protection of the interests of Apogee or Apogee Members, their officers,\ndirectors, shareholders and other employees.\n(b) The parties agree that Apogee and pogee Members share confidential information with each\nother and may have relationships with entities that are suppliers, vendors or customers of\nApogee or an Apogee Member while being a competitor of the same, pogee or another\nA pogee Member.\n(c) In the event that, notwithstanding the foregoing, any part of the covenants set forth herein shall\nbe held to be invalid or unenforceable, the remaining parts thereof shall nevertheless continue to\nbe valid and enforceable as though the invalid or unenforceable parts had not been included\ntherein. In the event that any provision of Section 5 relating to time period and/or areas of\nrestriction shall be declared by a court of competent jurisdiction to exceed the maximum time\nperiod or areas such court deems reasonable and enforceable, the agreed upon time period\nand/or areas of restriction shall be deemed to become and thereafter be the maximum time\nperiod and/or areas which such court deems reasonable and enforceable.\n8.\nWaiver. In the event A pogee or any pogee Member maintains an action, either at law, equity, or\nboth, to enforce this A greement against Employee, Employee waives any right to maintain any of the following\ndefenses:\n(a) That this Agreement is not necessary for the protection of the goodwill of Apogee or any Apogee\nMember;\n(b) That this A greement is overbroad in geographic scope or duration;\n(c) That this A greement would impose an undue hardship upon the Employee;\n(d) That A pogee or any A pogee Member has an adequate remedy at law;\n5\nEXECUTION COPY\n(e) That this Agreement is not supported by adequate consideration; or\n(f) That A pogee or any A pogee Member failed to take adequate safeguards to protect the confidentiality\nof the information.\n9.\nBurden and Benefit/Assigns. The Employee may not transfer or assign this A Agreement or any of the\nEmployee's rights or obligations hereunder. Apogee or any Apogee Member may transfer or assign this\nA greement or any of its rights or obligations hereunder with or without notice to the Employee, and this\nA greement shall automatically inure to the benefit of Apogee or any Apogee Members and their respective\nheirs, personal and legal representatives, successors and assigns.\n10.\nSurvival. Employee's obligations under this A greement shall survive termination of the Agreement\nand the employment relationship, regardless of the circumstances of termination of the employment\nrelationship.\n11.\nEmployment At Will. This Agreement does not alter the at will nature of the employm\nrelationship between Employee and Apogee or any pogee Member and Employee. Both parties understand\nthat either party may end the employment relationship at any time, for any reason, without notice. Employee\nhas no right to continued employment with pogee or any pogee Member.\n12. Entire Agreement. This A greement contains the entire agreement and understanding by and between\nEmployee and Apogee and/or any Apogee Member with respect to the subject matter hereof, except that any\nchange in control agreement to which Employee is signatory shall continue in full force and effect. No\nrepresentations, promises, agreements or understandings, written or oral, not herein contained shall be of any\nforce or effect Notwithstanding the above, if Employee is a party to a change in control agreement, it is\nunderstood and agreed that Employee is subject to the covenants described in such change in control\nagreement, despite the shorter duration of such covenants in this Agreement. The covenants described in any\napplicable change in control agreement shall continue for the entire period stated therein, regardless of the\nexpiration of the covenant periods described in this greement.\n13.\nModification; Waiver. No change or modification hereof shall be valid or binding unless the same is\nin writing and signed by the party intended to be bound. No waiver of any provision of this A greement shall be\nvalid unless the same is in writing and signed by the party against whom such waiver is sought to be enforced;\nmoreover, no valid waiver of any provision of this Agreement at any time shall be deemed a waiver of any\nother provision of this Agreement at such time or will be deemed a valid waiver of such provision at any other\ntime. Any delay or failure to enforce any provision of this A greement by A pogee or any pogee Member shall\nalso not constitute a waiver of the right to enforce any part of this A greement.\n14.\nVoluntary Action. Employee enters into this Agreement knowingly and voluntarily and after having\nhad an opportunity to consult with legal counsel if desired.\n15.\nConstruction. It is the intention of the parties hereto that Apogee or any Apogee Members be given\nthe broadest possible protection respecting its confidential information and\n6\nEXECUTION COPY\nrespecting competition by Employee following Employee's separation from Apogee or any Apogee Member.\nTherefore, if any portion of this A greement is deemed overbroad by a court of competent jurisdiction, it is the\nparties' intention that it be redrawn to fit the broadest possible geographic and temporal limitations allowed by\nlaw. The parties intend and agree that this A greement not be construed or interpreted in favor of either party\nbased upon who drafted its provisions.\n16.\nGoverning Law. This Agreement will be construed and governed in accordance with the laws of the\nState of Minnesota, its conflicts of laws principles notwithstanding.\n17. Jurisdiction. For the purpose of resolving conflicts related to or arising out of this A greement, the\nparties hereby expressly consent to the jurisdiction of the courts of Minnesota and such other courts as\npermitted under the Federal Defend Trade Secrets Act. Employee consents to personal jurisdiction in the State\nof Minnesota.\n[The remainder of this page has been left blank intentionally. Signature page attached.]\n7\nEXECUTION COPY\nIN WITNESS WHEREOF, Apogee and Employee have duly executed this A greement under seal as of the day\nand year first above written.\nDate:\n8/5/19\nAPOGEE ENTERPRISES, INC.\nBy/s/ Curtis J. Dobler\nIts: Executive Vice President Human Resources\nEMPLOYEE\nDate:\n8/5/19\n/s/ Brent C. Jewell\nBrent C. ewell\n8	EXHIBIT 10.1\nEXECUTION COPY\nEMPLOYEE NONCOMPETITION\nAND CONFIDENTIALITY AGREEMENT\nTHIS EMPLOYEE NON-COMPETITION AND CONFIDENTIALITY AGREEMENT (“Agreement”) is\neffective on August 5, 2019, by and between Apogee Enterprises, Inc. (“Apogee”) and Brent C. Jewell, who\nresides at 3165 Lake Shore Boulevard, Minnetonka, Minnesota 55491 (“Employee”).\nWHEREAS, Apogee has offered a promotion to Employee to become President of the Architectural Framing\nSystems segment (“Promotion”) effective August 5, 2019; and\nWHEREAS, if Employee accepts this Promotion, he will receive a $49,000 increase in base salary and an\naward of an additional 10,000 shares of restricted Apogee stock; and\nWHEREAS, prior to accepting this Promotion Employee was informed that as a condition of the Promotion,\nhe would be required to agree to restrictions on competition and the use of confidential information; and\nWHEREAS, Apogee and Employee acknowledge that Apogee’s business is highly competitive and will be\nsubstantially harmed in the competitive marketplace if the relationships they develop with vendors and\ncustomers is used to the detriment of Apogee, or Apogee Members, or to the benefit of others; and\nWHEREAS, Apogee’s business includes confidential information which is protected and kept secret by\nApogee and Apogee will be substantially harmed in the competitive marketplace if the confidential information\nis used to its detriment or to the benefit of others; and\nWHEREAS, Apogee desires reasonable protection of its confidential business and technical information and\nrelationships, which have been and will be acquired and is being developed by Apogee, at substantial expense;\nand\nWHEREAS, the Employee understands and agrees that he will fill a very important role at Apogee and is\nwilling to enter into restrictions on competition in exchange for the consideration provided hereunder.\nNOW THEREFORE, in consideration of the foregoing, of the mutual promises herein contained, and of other\ngood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties\nhereto, intending legally to be bound, hereby agree as follows:\n1. Adoption of Recitals. The parties adopt and incorporate the above Recitals into this Agreement.\n2.\nTerm of Agreement. This Agreement shall commence on the effective date above written. It shall\nsurvive termination of the Employee’s employment with Apogee or an Apogee Member for any reason.\n1\nEXECUTION COPY\n3.\nConsideration.\nEmployee acknowledges that Employee has had an opportunity to review this\nAgreement, and Employee understands that the Promotion is conditioned upon Employee’s acceptance of the\nterms herein. Employee further agrees that Employee has received independent, adequate and sufficient\nconsideration to which Employee is not otherwise entitled, for Employee’s agreement to, and acceptance of,\nthe terms herein.\n4. Apogee Member. As used herein, the terms “Apogee Member” and “Apogee Members” shall include\nany corporation which is at any time a parent or direct or indirect subsidiary of Apogee, or any corporation or\nentity which is an affiliate of Apogee by virtue of Apogee owning more than five percent (5%) of the entity or\nthe entity owning more than five percent (5%) of Apogee. “Apogee Member” shall include, but not be limited\nto, the following entities that are owned in part by Apogee or which own part of Apogee, and which share\nConfidential Information among themselves: Apogee Enterprises, Inc., Alumicor Limited, Apogee Wausau\nGroup, Inc. (including Linetec and Wausau Window and Wall Systems), EFCO Corporation, Glassec Vidros\nde Seguranca Ltda., Harmon, Inc., Sotawall Limited, Tru Vue, Inc., Tubelite Inc., Velocity, and Apogee\nCompany, Viracon, Inc. and Viracon Georgia, Inc. All Apogee Members are intended third party beneficiaries\nof this Agreement.\n5.\nEmployee Covenants.\nIn recognition of the fact that, as a result of Employee’s employment by\nApogee or an Apogee Member, Employee has had or will have access to and gain knowledge of highly\nconfidential or proprietary information or trade secrets pertaining to Apogee and Apogee Members, as well as\nthe customers, suppliers, joint ventures, licensors, licensees, distributors or other persons and entities with\nwhom Apogee and any Apogee Member does business (“Confidential Information”), which Apogee and\nApogee Members have expended time, resources and money to obtain or develop and which have significant\nvalue to Apogee and Apogee Members, Employee agrees for the benefit of Apogee and Apogee Members, and\nas a material condition to Employee’s Promotion, as follows.\n(a) Non-Disclosure of Confidential Information. Employee acknowledges that Employee will receive\naccess or have received access to Confidential Information about Apogee and Apogee Members, that\nthis information was obtained or developed by Apogee and Apogee Members at great expense and is\nzealously guarded by Apogee and Apogee Members from unauthorized disclosure and that\nEmployee’s possession of this special knowledge is due solely to Employee’s employment with\nApogee or one or more Apogee Members. In recognition of the foregoing, Employee will not at any\ntime during employment or following termination of employment for any reason, disclose, use or\notherwise make available to any third party any Confidential Information relating to Apogee or any\nApogee Member’s business, products, services, customers, vendors or suppliers; trade secrets, data,\nspecifications, developments, inventions and research activity; marketing and sales strategies,\ninformation and techniques; long and short term plans; existing and prospective client, vendor,\nsupplier and employee lists, contacts and information; financial, personnel and information system\ninformation and applications; and any other information concerning the business of Apogee or any\nApogee Member which is not disclosed to the general public or known in the industry, except for\ndisclosure necessary in the course of Employee’s duties or with the express written consent\n2\nEXECUTION COPY\nof Apogee or an Apogee Member. All Confidential Information, including all copies, notes\nregarding, and replications of such Confidential Information will remain the sole property of Apogee\nor any Apogee Member, as applicable, and must be returned to Apogee or Apogee Members\nimmediately upon termination of Employee’s employment.\n(b) Return of Property. Upon termination of employment with Apogee or any Apogee Member, or at\nany other time at the request of Apogee or an Apogee Member, Employee shall deliver to a\ndesignated Apogee or an Apogee Member representative all records, documents, hardware, software\nand all other property of Apogee and Apogee Members and all copies of such property in\nEmployee’s possession. Employee acknowledges and agrees that all such materials are the sole\nproperty in Employee’s possession. Employee acknowledges and agrees that all such materials are\nthe sole property of Apogee and Apogee Members and that Employee will certify in writing to\nApogee or any Apogee Member at the time of delivery, whether upon termination or otherwise, that\nEmployee has complied with this obligation.\n(c) Non-Solicitation of Existing or Prospective Customers, Vendors and Suppliers.\nEmployee\nspecifically acknowledges that the Confidential Information described in Section 5 includes\nconfidential data pertaining to existing and prospective customers, vendors and suppliers of Apogee\nand Apogee Members; that such data is a valuable and unique asset of the business of Apogee and\nApogee Members; and that the success or failure of their businesses depends upon their ability to\nestablish and maintain close and continuing personal contacts and working relationships with such\nexisting and prospective customers, vendors, and suppliers and to develop proposals which are\nspecific to such existing and prospective customers, vendors, and suppliers. Therefore, during\nEmployee’s employment with Apogee or any Apogee Member and for the eighteen (18) months\nfollowing Employee’s employment termination date, Employee agrees that Employee will not,\nexcept on behalf of Apogee and Apogee Members, or with Apogee’s or an Apogee Member’s\nexpress written consent, solicit, approach, contact or attempt to solicit, approach or contact, either\ndirectly or indirectly, on Employee’s own behalf or on behalf of any other person or entity, any\nexisting or prospective customers, vendors, or suppliers of Apogee and Apogee Members with\nwhom Employee had contact or about whom Employee gained Confidential Information during\nEmployee’s employment with Apogee or any Apogee Members for the purpose of obtaining\nbusiness or engaging in any commercial relationship that would be competitive with the “Business\nof the Company” (as defined below in Section 5(e)(i)) or cause such customer, supplier, or vendor to\nmaterially change or terminate its business or commercial relationship with Apogee or any Apogee\nMember.\n(d) Non-Solicitation of Employees.\nEmployee specifically acknowledges that the Confidential\nInformation described in Section 5 also includes confidential data pertaining to employees and\nagents of Apogee or Apogee Members, and Employee further agrees that during Employee’s\nemployment with Apogee and\n3\nEXECUTION COPY\nApogee Members and for the eighteen (18) months following Employee’s employment termination\ndate, Employee will not, directly or indirectly, on Employee’s own behalf or on behalf of any other\nperson or entity, solicit, contact, approach, encourage, induce or attempt to solicit, contact, approach,\nencourage or induce any of the employees or agents of Apogee or any Apogee Member to terminate\ntheir employment or agency with Apogee or any Apogee Member.\n(e) Non-Competition.\nEmployee covenants and agrees that during Employee’s employment with\nApogee or any Apogee Member and for the eighteen (18) months following Employee’s\nemployment termination date, Employee will not, in any geographic market in which Employee\nworked on behalf of Apogee or any Apogee Member, or for which Employee had any sales,\nmarketing, operational, logistical or other management or oversight responsibility, engage in or\ncarry on, directly or indirectly, as an owner, employee, agent, associate, consultant, partner or in any\nother capacity, a business competitive with the Business of the Company.\ni. The “Business of the Company” shall mean any business in which Apogee or any Apogee\nMember was involved, or was investing in for the purpose of being involved, at any time within\nthe twenty-four (24) months preceding Employee’s employment termination date.\nii. To “engage in or carry on” shall mean to have ownership in any enterprise engaged in the\nBusiness of the Company (excluding ownership of up to 1% of the outstanding shares of a\npublicly traded company) or to consult, work in, direct or have responsibility for any area of the\nBusiness of the Company.\n(f) Remedies for Breach of These Covenants. Any breach of the covenants in this Section 5 likely will\ncause irreparable harm to Apogee and Apogee Members for which money damages could not\nreasonably or adequately compensate Apogee or Apogee Members. Accordingly, Apogee and any\nApogee Member shall be entitled to all forms of injunctive relief (whether temporary, emergency,\npreliminary, prospective or permanent) to enforce such covenants, in addition to damages and other\navailable remedies, and Employee consents to the issuance of such an injunction without the\nnecessity of Apogee or any Apogee Member posting a bond. In the event that injunctive relief or\ndamages are awarded to Apogee or any Apogee Member for any breach by Executive of this\nSection 5, Employee further agrees that Apogee or any Apogee Member shall be entitled to recover\nits costs and attorneys’ fees necessary to obtain such recovery. In addition, Employee agrees that\nupon Employee’s breach of any covenant in this Section 5, all unexercised options issued under any\nstock option plans of Apogee will immediately terminate and Apogee and/or an Apogee Member\nshall have the right to exercise any and all of the rights described above.\n4\nEXECUTION COPY\n6.\nAccounting of Profits. Employee covenants and agrees that if Employee shall violate any covenants\nor agreements in this Agreement, Apogee and/or the affected Apogee Member(s) shall be entitled to an\naccounting and repayment of all profits, compensation, commissions, remunerations or benefits which\nEmployee directly or indirectly has realized and/or may realize as a result of, growing out of, or in connection\nwith, any such violation; such remedy shall be in addition to, and not in limitation of, any injunctive relief or\nother rights or remedies to which Apogee or Apogee Members are or may be entitled at law or in equity or\nunder this Agreement.\n7. Reasonableness of Restrictions.\n(a) Employee has carefully read and considered the provisions of this Agreement and, having done\nso, agrees that the restrictions set forth therein (including, but not limited to, the time period of\nrestriction and the geographical areas of restriction) are fair and reasonable and are reasonably\nrequired for the protection of the interests of Apogee or Apogee Members, their officers,\ndirectors, shareholders and other employees.\n(b) The parties agree that Apogee and Apogee Members share confidential information with each\nother and may have relationships with entities that are suppliers, vendors or customers of\nApogee or an Apogee Member while being a competitor of the same, Apogee or another\nApogee Member.\n(c) In the event that, notwithstanding the foregoing, any part of the covenants set forth herein shall\nbe held to be invalid or unenforceable, the remaining parts thereof shall nevertheless continue to\nbe valid and enforceable as though the invalid or unenforceable parts had not been included\ntherein. In the event that any provision of Section 5 relating to time period and/or areas of\nrestriction shall be declared by a court of competent jurisdiction to exceed the maximum time\nperiod or areas such court deems reasonable and enforceable, the agreed upon time period\nand/or areas of restriction shall be deemed to become and thereafter be the maximum time\nperiod and/or areas which such court deems reasonable and enforceable.\n8.\nWaiver. In the event Apogee or any Apogee Member maintains an action, either at law, equity, or\nboth, to enforce this Agreement against Employee, Employee waives any right to maintain any of the following\ndefenses:\n(a) That this Agreement is not necessary for the protection of the goodwill of Apogee or any Apogee\nMember;\n(b)That this Agreement is overbroad in geographic scope or duration;\n(c) That this Agreement would impose an undue hardship upon the Employee;\n(d)That Apogee or any Apogee Member has an adequate remedy at law;\n5\nEXECUTION COPY\n(e) That this Agreement is not supported by adequate consideration; or\n(f) That Apogee or any Apogee Member failed to take adequate safeguards to protect the confidentiality\nof the information.\n9.\nBurden and Benefit/Assigns. The Employee may not transfer or assign this Agreement or any of the\nEmployee’s rights or obligations hereunder. Apogee or any Apogee Member may transfer or assign this\nAgreement or any of its rights or obligations hereunder with or without notice to the Employee, and this\nAgreement shall automatically inure to the benefit of Apogee or any Apogee Members and their respective\nheirs, personal and legal representatives, successors and assigns.\n10. Survival. Employee’s obligations under this Agreement shall survive termination of the Agreement\nand the employment relationship, regardless of the circumstances of termination of the employment\nrelationship.\n11.\nEmployment At Will.\nThis Agreement does not alter the at will nature of the employment\nrelationship between Employee and Apogee or any Apogee Member and Employee. Both parties understand\nthat either party may end the employment relationship at any time, for any reason, without notice. Employee\nhas no right to continued employment with Apogee or any Apogee Member.\n12. Entire Agreement. This Agreement contains the entire agreement and understanding by and between\nEmployee and Apogee and/or any Apogee Member with respect to the subject matter hereof, except that any\nchange in control agreement to which Employee is signatory shall continue in full force and effect. No\nrepresentations, promises, agreements or understandings, written or oral, not herein contained shall be of any\nforce or effect. Notwithstanding the above, if Employee is a party to a change in control agreement, it is\nunderstood and agreed that Employee is subject to the covenants described in such change in control\nagreement, despite the shorter duration of such covenants in this Agreement. The covenants described in any\napplicable change in control agreement shall continue for the entire period stated therein, regardless of the\nexpiration of the covenant periods described in this Agreement.\n13. Modification; Waiver. No change or modification hereof shall be valid or binding unless the same is\nin writing and signed by the party intended to be bound. No waiver of any provision of this Agreement shall be\nvalid unless the same is in writing and signed by the party against whom such waiver is sought to be enforced;\nmoreover, no valid waiver of any provision of this Agreement at any time shall be deemed a waiver of any\nother provision of this Agreement at such time or will be deemed a valid waiver of such provision at any other\ntime. Any delay or failure to enforce any provision of this Agreement by Apogee or any Apogee Member shall\nalso not constitute a waiver of the right to enforce any part of this Agreement.\n14. Voluntary Action. Employee enters into this Agreement knowingly and voluntarily and after having\nhad an opportunity to consult with legal counsel if desired.\n15. Construction. It is the intention of the parties hereto that Apogee or any Apogee Members be given\nthe broadest possible protection respecting its confidential information and\n6\nEXECUTION COPY\nrespecting competition by Employee following Employee’s separation from Apogee or any Apogee Member.\nTherefore, if any portion of this Agreement is deemed overbroad by a court of competent jurisdiction, it is the\nparties’ intention that it be redrawn to fit the broadest possible geographic and temporal limitations allowed by\nlaw. The parties intend and agree that this Agreement not be construed or interpreted in favor of either party\nbased upon who drafted its provisions.\n16. Governing Law. This Agreement will be construed and governed in accordance with the laws of the\nState of Minnesota, its conflicts of laws principles notwithstanding.\n17.\nJurisdiction. For the purpose of resolving conflicts related to or arising out of this Agreement, the\nparties hereby expressly consent to the jurisdiction of the courts of Minnesota and such other courts as\npermitted under the Federal Defend Trade Secrets Act. Employee consents to personal jurisdiction in the State\nof Minnesota.\n[The remainder of this page has been left blank intentionally. Signature page attached.]\n7\nEXECUTION COPY\nIN WITNESS WHEREOF, Apogee and Employee have duly executed this Agreement under seal as of the day\nand year first above written.\nDate:\n8/5/19\nAPOGEE ENTERPRISES, INC.\nBy:/s/ Curtis J. Dobler\nIts:Executive Vice President Human Resources\nEMPLOYEE\nDate:\n8/5/19\n/s/ Brent C. Jewell\nBrent C. Jewell\n8
+857ea882666c28b0036f403b84728dfd.pdf	effective_date jurisdiction party term	ADDENDUM A to Offer Letter for Ken W. Arndt\nNon-Disclosure Agreement\nBy my signature on the offer of conditional employment to which this Addendum A is\nattached, as well as my signature below, I acknowledge and agree to the following in\nconsideration for my new employment and related compensation by Frontier\nCommunications or one of its subsidiaries, affiliates or divisions (collectively, “Frontier”):\n1.\nNon-Disclosure. I understand that during my employment with Frontier\n(including, for purposes of this Agreement, any predecessor companies or business units\nthat have been acquired by Frontier), I will have access to Proprietary Information (as\ndefined in Paragraph 3 below) and Frontier Materials (as defined in Paragraph 2 below). I\nagree to hold all Proprietary Information and Frontier Materials in strict confidence and in\ncompliance with Frontier’s corporate policies. I will not take, use, copy, disclose, publish,\nprovide access to or summarize any Proprietary Information or Frontier Materials except to\nthe extent necessary to carry out my duties and responsibilities as an employee of Frontier.\nI also agree that I will not use any confidential information of any prior employer in\nconnection with performing my duties at Frontier.\n2.\nFrontier Materials. All files, records, proposals, specifications or other\ndocuments, and all computer software, software applications, files, databases and the like\nrelating to Frontier ’s business or which contain Proprietary Information, whether prepared\nby me or otherwise coming into my possession (“Frontier Materials”), shall remain the\nexclusive property and intellectual property of Frontier. Upon the termination of my\nemployment for any reason, or upon the request of Frontier if sooner, I will promptly\ndeliver to Frontier all originals and copies of Frontier Materials in my possession, custody\nor control (wherever located, including my home or laptop computer), and shall not retain\nany copies of the Frontier Materials in any form or medium whatsoever.\n3.\nProprietary Information Definition. For the purposes of this Agreement,\nthe term “Proprietary Information” shall include all trade secrets, know-how and other\ninformation in any form or medium that relates to the past, current or future business of\nFrontier or its subsidiaries, affiliates or divisions (or is given to Frontier in confidence by a\nthird party) and is not generally available to the public or generally known in the industries\nin which Frontier does business or may become engaged, including, without limitation,\nany formulas, devices, inventions, methods, techniques or processes, compilations of\ninformation, records and specifications and any other information of Frontier relating to its\nservices and products (offered or to be offered), research, development, marketing, pricing,\nclients and prospective clients, business methods, strategies, financial condition,\ntransactions, government and regulatory activities and approvals, plans, personnel\ninformation and capabilities, policies or prospects. “Proprietary Information” shall not\ninclude any portions of the foregoing that I can demonstrate by sufficient evidence are (i)\nmade legitimately available to me by a third party without breach of any obligation of\nconfidence to any person or (ii) required by law to be disclosed by me, provided that I\nmust give Frontier prompt written notice of any such requirement, disclose no more\ninformation than is so required, and cooperate fully with all efforts by Frontier to obtain a\nprotective order or similar confidentiality treatment for such information.\n3\n4.\nAgreement Applicable to Information Acquired Businesses. For the\navoidance of doubt, I acknowledge that if I was employed by a predecessor company or\nbusiness unit of Frontier (i.e ., a company or business unit that was subsequently acquired\nby Frontier), my representations, warranties, obligations and undertakings under this\nAgreement shall apply as if such predecessor company or business unit (including any\npredecessors thereof) had at all times been a part of Frontier.\n5.\nInterpretation and Enforcement. I agree that the provisions of this\nAgreement are reasonable. If a court determines, however, that any provision of this\nAgreement is unreasonable, then the parties hereto agree that the provisions of this\nAgreement should be interpreted and enforced to the maximum extent which such court\ndeems reasonable. If any provision of this Agreement is otherwise inoperative or\nunenforceable for any reason, such circumstance shall not have the effect of rendering the\nprovision in question inoperative or unenforceable in any other circumstance, or of\nrendering any other provision of this Agreement inoperative or unenforceable to any extent\nwhatsoever.\n6.\nSuccessors and Assigns. This Agreement shall be binding upon me and my\nheirs and legal representatives and my permitted assigns. I understand and agree that I\ncannot assign my obligations and undertakings under this Agreement to any other person\nor entity under any circumstances whatsoever, without the prior consent of Frontier, but\nthat Frontier may assign this Agreement to any subsidiary, affiliate or successor.\n7.\nAt-Will Employment; No Termination. I understand that this Agreement\ndoes not constitute a contract of employment for any specific term and that Frontier or I\nmay terminate my employment at any time, for any or no reason, unless (i) a specific term\nof employment has been agreed to in a separate, written agreement signed by an authorized\nofficer of Frontier or (ii) the terms and conditions of my employment are governed by a\nvalid collective bargaining agreement. I acknowledge and agree that I may not terminate\nthis Agreement for any reason, and that my obligations and undertakings under this\nAgreement will continue to apply regardless of whether I transfer at some time from one\nsubsidiary, division or affiliate of Frontier to another, and even after my employment with\nFrontier ends for any reason.\n8.\nApplicable Law. This Agreement shall be construed and enforced in\naccordance with, and shall be governed by, the laws of the state of Connecticut applicable\nto contracts executed in and to be fully performed in such state, or any other state law as\napplicable by the circumstances.\nBy my signature below, I acknowledge that I have read and understand this Non-\nDisclosure Agreement and that I voluntarily accept its terms. I understand and agree that\nan electronic or digital signature is equivalent to a handwritten signature.\n__________________________\n_____________________\nKenneth W. Arndt\nDate\n4	ADDENDUM A to Offer Letter for Ken W. Arndt\nNon-Disclosure Agreement\nBy my signature on the offer of conditional employment to which this Addendum A is\nattached, as well as my signature below, I acknowledge and agree to the following in\nconsideration for my new employment and related compensation by Frontier\nCommunications or one of its subsidiaries, affiliates or divisions (collectively, “Frontier”):\n1. Non-Disclosure. 1 understand that during my employment with Frontier\n(including, for purposes of this Agreement, any predecessor companies or business units\nthat have been acquired by Frontier), I will have access to Proprietary Information (as\ndefined in Paragraph 3 below) and Frontier Materials (as defined in Paragraph 2 below). I\nagree to hold all Proprietary Information and Frontier Materials in strict confidence and in\ncompliance with Frontier’s corporate policies. I will not take, use, copy, disclose, publish,\nprovide access to or summarize any Proprietary Information or Frontier Materials except to\nthe extent necessary to carry out my duties and responsibilities as an employee of Frontier.\nI also agree that I will not use any confidential information of any prior employer in\nconnection with performing my duties at Frontier.\n2. Frontier Materials. All files, records, proposals, specifications or other\ndocuments, and all computer software, software applications, files, databases and the like\nrelating to Frontier’s business or which contain Proprietary Information, whether prepared\nby me or otherwise coming into my possession (“Frontier Materials”), shall remain the\nexclusive property and intellectual property of Frontier. Upon the termination of my\nemployment for any reason, or upon the request of Frontier if sooner, I will promptly\ndeliver to Frontier all originals and copies of Frontier Materials in my possession, custody\nor control (wherever located, including my home or laptop computer), and shall not retain\nany copies of the Frontier Materials in any form or medium whatsoever.\n3. Proprietary Information Definition. For the purposes of this Agreement,\nthe term “Proprietary Information” shall include all trade secrets, know-how and other\ninformation in any form or medium that relates to the past, current or future business of\nFrontier or its subsidiaries, affiliates or divisions (or is given to Frontier in confidence by a\nthird party) and is not generally available to the public or generally known in the industries\nin which Frontier does business or may become engaged, including, without limitation,\nany formulas, devices, inventions, methods, techniques or processes, compilations of\ninformation, records and specifications and any other information of Frontier relating to its\nservices and products (offered or to be offered), research, development, marketing, pricing,\nclients and prospective clients, business methods, strategies, financial condition,\ntransactions, government and regulatory activities and approvals, plans, personnel\ninformation and capabilities, policies or prospects. “Proprietary Information” shall not\ninclude any portions of the foregoing that I can demonstrate by sufficient evidence are (i)\nmade legitimately available to me by a third party without breach of any obligation of\nconfidence to any person or (ii) required by law to be disclosed by me, provided that 1\nmust give Frontier prompt written notice of any such requirement, disclose no more\ninformation than is so required, and cooperate fully with all efforts by Frontier to obtain a\nprotective order or similar confidentiality treatment for such information.\n4. Agreement Applicable to Information Acquired Businesses. For the\navoidance of doubt, I acknowledge that if I was employed by a predecessor company or\nbusiness unit of Frontier (i.e., a company or business unit that was subsequently acquired\nby Frontier), my representations, warranties, obligations and undertakings under this\nAgreement shall apply as if such predecessor company or business unit (including any\npredecessors thereof) had at all times been a part of Frontier.\n5. Interpretation and Enforcement. 1 agree that the provisions of this\nAgreement are reasonable. If a court determines, however, that any provision of this\nAgreement is unreasonable, then the parties hereto agree that the provisions of this\nAgreement should be interpreted and enforced to the maximum extent which such court\ndeems reasonable. If any provision of this Agreement is otherwise inoperative or\nunenforceable for any reason, such circumstance shall not have the effect of rendering the\nprovision in question inoperative or unenforceable in any other circumstance, or of\nrendering any other provision of this Agreement inoperative or unenforceable to any extent\nwhatsoever.\n6. Successors and Assigns. This Agreement shall be binding upon me and my\nheirs and legal representatives and my permitted assigns. I understand and agree that I\ncannot assign my obligations and undertakings under this Agreement to any other person\nor entity under any circumstances whatsoever, without the prior consent of Frontier, but\nthat Frontier may assign this Agreement to any subsidiary, affiliate or successor.\n7. At-Will Employment; No Termination. 1 understand that this Agreement\ndoes not constitute a contract of employment for any specific term and that Frontier or I\nmay terminate my employment at any time, for any or no reason, unless (i) a specific term\nof employment has been agreed to in a separate, written agreement signed by an authorized\nofficer of Frontier or (ii) the terms and conditions of my employment are governed by a\nvalid collective bargaining agreement. I acknowledge and agree that I may not terminate\nthis Agreement for any reason, and that my obligations and undertakings under this\nAgreement will continue to apply regardless of whether I transfer at some time from one\nsubsidiary, division or affiliate of Frontier to another, and even after my employment with\nFrontier ends for any reason.\n8. Applicable Law. This Agreement shall be construed and enforced in\naccordance with, and shall be governed by, the laws of the state of Connecticut applicable\nto contracts executed in and to be fully performed in such state, or any other state law as\napplicable by the circumstances.\nBy my signature below, I acknowledge that I have read and understand this Non-\nDisclosure Agreement and that I voluntarily accept its terms. I understand and agree that\nan electronic or digital signature is equivalent to a handwritten signature.\n \nKenneth W. Arndt Date	ADDENDUM A to Offer Letter for Ken W. Arndt\nNon-Disclosure Agreement\nBy my signature on the offer of conditional employment to which this Addendum A is\nattached, as well as my signature below, I acknowledge and agree to the following in\nconsideration for my new employment and related compensation by Frontier\nCommunications or one of its subsidiaries, affiliates or divisions (collectively, "Frontier"):\n1.\nNon-Disclosure. I understand that during my employment with Frontier\n(including, for purposes of this Agreement, any predecessor companies or business units\nthat have been acquired by Frontier), I will have access to Proprietary Information (as\ndefined in Paragraph 3 below) and Frontier Materials (as defined in Paragraph 2 below). I\nagree to hold all Proprietary Information and Frontier Materials in strict confidence and in\ncompliance with Frontier's corporate policies. I will not take, use, copy, disclose, publish,\nprovide access to or summarize any Proprietary Information or Frontier Materials except to\nthe extent necessary to carry out my duties and responsibilities as an employee of Frontier.\nI also agree that I will not use any confidential information of any prior employer in\nconnection with performing my duties at Frontier.\n2.\nFrontier Materials. All files, records, proposals, specifications or other\ndocuments, and all computer software, software applications, files, databases and the like\nrelating to Frontier's business or which contain Proprietary Information, whether prepared\nby me or otherwise coming into my possession ("Frontier Materials"), shall remain the\nexclusive property and intellectual property of Frontier. Upon the termination of my\nemployment for any reason, or upon the request of Frontier if sooner, I will promptly\ndeliver to Frontier all originals and copies of Frontier Materials in my possession, custody\nor control (wherever located, including my home or laptop computer), and shall not retain\nany copies of the Frontier Materials in any form or medium whatsoever.\n3. Proprietary Information Definition. For the purposes of this Agreement,\nthe term "Proprietary Information" shall include all trade secrets, know-how and other\ninformation in any form or medium that relates to the past, current or future business of\nFrontier or its subsidiaries, affiliates or divisions (or is given to Frontier in confidence by a\nthird party) and is not generally available to the public or generally known in the industries\nin which Frontier does business or may become engaged, including, without limitation,\nany formulas, devices, inventions, methods, techniques or processes, compilations of\ninformation, records and specifications and any other information of Frontier relating to its\nservices and products (offered or to be offered), research, development, marketing, pricing,\nclients and prospective clients, business methods, strategies, financial condition,\ntransactions, government and regulatory activities and approvals, plans, personnel\ninformation and capabilities, policies or prospects. "Proprietary Information" shall not\ninclude any portions of the foregoing that I can demonstrate by sufficient evidence are (i)\nmade legitimately available to me by a third party without breach of any obligation of\nconfidence to any person or (ii) required by law to be disclosed by me, provided that I\nmust give Frontier prompt written notice of any such requirement, disclose no more\ninformation than is so required, and cooperate fully with all efforts by Frontier to obtain a\nprotective order or similar confidentiality treatment for such information.\n3\n4.\nAgreement Applicable to Information Acquired Businesses. For the\navoidance of doubt, I acknowledge that if I was employed by a predecessor company or\nbusiness unit of Frontier (i.e., a company or business unit that was subsequently acquired\nby Frontier), my representations, warranties, obligations and undertakings under this\nAgreement shall apply as if such predecessor company or business unit (including any\npredecessors thereof) had at all times been a part of Frontier.\n5.\nInterpretation and Enforcement. I agree that the provisions of this\nAgreement are reasonable. If a court determines, however, that any provision of this\nAgreement is unreasonable, then the parties hereto agree that the provisions of this\nAgreement should be interpreted and enforced to the maximum extent which such court\ndeems reasonable. If any provision of this Agreement is otherwise inoperative or\nunenforceable for any reason, such circumstance shall not have the effect of rendering the\nprovision in question inoperative or unenforceable in any other circumstance, or of\nrendering any other provision of this Agreement inoperative or unenforceable to any extent\nwhatsoever.\n6.\nSuccessors and Assigns. This Agreement shall be binding upon me and my\nheirs and legal representatives and my permitted assigns. I understand and agree that I\ncannot assign my obligations and undertakings under this Agreement to any other person\nor entity under any circumstances whatsoever, without the prior consent of Frontier, but\nthat Frontier may assign this Agreement to any subsidiary, affiliate or successor.\n7.\nAt-Will Employment; No Termination. I understand that this Agreement\ndoes not constitute a contract of employment for any specific term and that Frontier or I\nmay terminate my employment at any time, for any or no reason, unless (i) a specific term\nof employment has been agreed to in a separate, written agreement signed by an authorized\nofficer of Frontier or (ii) the terms and conditions of my employment are governed by a\nvalid collective bargaining agreement. I acknowledge and agree that I may not terminate\nthis Agreement for any reason, and that my obligations and undertakings under this\nAgreement will continue to apply regardless of whether I transfer at some time from one\nsubsidiary, division or affiliate of Frontier to another, and even after my employment with\nFrontier ends for any reason.\n8.\nApplicable Law. This Agreement shall be construed and enforced in\naccordance with, and shall be governed by, the laws of the state of Connecticut applicable\nto contracts executed in and to be fully performed in such state, or any other state law as\napplicable by the circumstances.\nBy my signature below, I acknowledge that I have read and understand this Non-\nDisclosure Agreement and that I voluntarily accept its terms. I understand and agree that\nan electronic or digital signature is equivalent to a handwritten signature.\nKenneth W. Arndt\nDate\n4	ADDENDUM A to Offer Letter for Ken W. Arndt\nNon-Disclosure Agreement\nBy my signature on the offer of conditional employment to which this Addendum A is\nattached, as well as my signature below, I acknowledge and agree to the following in\nconsideration for my new employment and related compensation by Frontier\nCommunications or one of its subsidiaries, affiliates or divisions (collectively, “Frontier”):\n1.\nNon-Disclosure. I understand that during my employment with Frontier\n(including, for purposes of this Agreement, any predecessor companies or business units\nthat have been acquired by Frontier), I will have access to Proprietary Information (as\ndefined in Paragraph 3 below) and Frontier Materials (as defined in Paragraph 2 below). I\nagree to hold all Proprietary Information and Frontier Materials in strict confidence and in\ncompliance with Frontier’s corporate policies. I will not take, use, copy, disclose, publish,\nprovide access to or summarize any Proprietary Information or Frontier Materials except to\nthe extent necessary to carry out my duties and responsibilities as an employee of Frontier.\nI also agree that I will not use any confidential information of any prior employer in\nconnection with performing my duties at Frontier.\n2.\nFrontier Materials. All files, records, proposals, specifications or other\ndocuments, and all computer software, software applications, files, databases and the like\nrelating to Frontier ’s business or which contain Proprietary Information, whether prepared\nby me or otherwise coming into my possession (“Frontier Materials”), shall remain the\nexclusive property and intellectual property of Frontier. Upon the termination of my\nemployment for any reason, or upon the request of Frontier if sooner, I will promptly\ndeliver to Frontier all originals and copies of Frontier Materials in my possession, custody\nor control (wherever located, including my home or laptop computer), and shall not retain\nany copies of the Frontier Materials in any form or medium whatsoever.\n3.\nProprietary Information Definition. For the purposes of this Agreement,\nthe term “Proprietary Information” shall include all trade secrets, know-how and other\ninformation in any form or medium that relates to the past, current or future business of\nFrontier or its subsidiaries, affiliates or divisions (or is given to Frontier in confidence by a\nthird party) and is not generally available to the public or generally known in the industries\nin which Frontier does business or may become engaged, including, without limitation,\nany formulas, devices, inventions, methods, techniques or processes, compilations of\ninformation, records and specifications and any other information of Frontier relating to its\nservices and products (offered or to be offered), research, development, marketing, pricing,\nclients and prospective clients, business methods, strategies, financial condition,\ntransactions, government and regulatory activities and approvals, plans, personnel\ninformation and capabilities, policies or prospects. “Proprietary Information” shall not\ninclude any portions of the foregoing that I can demonstrate by sufficient evidence are (i)\nmade legitimately available to me by a third party without breach of any obligation of\nconfidence to any person or (ii) required by law to be disclosed by me, provided that I\nmust give Frontier prompt written notice of any such requirement, disclose no more\ninformation than is so required, and cooperate fully with all efforts by Frontier to obtain a\nprotective order or similar confidentiality treatment for such information.\n3\n4.\nAgreement Applicable to Information Acquired Businesses. For the\navoidance of doubt, I acknowledge that if I was employed by a predecessor company or\nbusiness unit of Frontier (i.e ., a company or business unit that was subsequently acquired\nby Frontier), my representations, warranties, obligations and undertakings under this\nAgreement shall apply as if such predecessor company or business unit (including any\npredecessors thereof) had at all times been a part of Frontier.\n5.\nInterpretation and Enforcement. I agree that the provisions of this\nAgreement are reasonable. If a court determines, however, that any provision of this\nAgreement is unreasonable, then the parties hereto agree that the provisions of this\nAgreement should be interpreted and enforced to the maximum extent which such court\ndeems reasonable. If any provision of this Agreement is otherwise inoperative or\nunenforceable for any reason, such circumstance shall not have the effect of rendering the\nprovision in question inoperative or unenforceable in any other circumstance, or of\nrendering any other provision of this Agreement inoperative or unenforceable to any extent\nwhatsoever.\n6.\nSuccessors and Assigns. This Agreement shall be binding upon me and my\nheirs and legal representatives and my permitted assigns. I understand and agree that I\ncannot assign my obligations and undertakings under this Agreement to any other person\nor entity under any circumstances whatsoever, without the prior consent of Frontier, but\nthat Frontier may assign this Agreement to any subsidiary, affiliate or successor.\n7.\nAt-Will Employment; No Termination. I understand that this Agreement\ndoes not constitute a contract of employment for any specific term and that Frontier or I\nmay terminate my employment at any time, for any or no reason, unless (i) a specific term\nof employment has been agreed to in a separate, written agreement signed by an authorized\nofficer of Frontier or (ii) the terms and conditions of my employment are governed by a\nvalid collective bargaining agreement. I acknowledge and agree that I may not terminate\nthis Agreement for any reason, and that my obligations and undertakings under this\nAgreement will continue to apply regardless of whether I transfer at some time from one\nsubsidiary, division or affiliate of Frontier to another, and even after my employment with\nFrontier ends for any reason.\n8.\nApplicable Law. This Agreement shall be construed and enforced in\naccordance with, and shall be governed by, the laws of the state of Connecticut applicable\nto contracts executed in and to be fully performed in such state, or any other state law as\napplicable by the circumstances.\nBy my signature below, I acknowledge that I have read and understand this Non-\nDisclosure Agreement and that I voluntarily accept its terms. I understand and agree that\nan electronic or digital signature is equivalent to a handwritten signature.\n__________________________\n_____________________\nKenneth W. Arndt\nDate\n4
+864dc16685f9fd8da9be283e6ba61a0b.pdf	jurisdiction	Exhibit C\nCONFIDENTIALITY/NON-COMPETITION/NON-SOLICITATION AGREEMENT\nDuring the course of your employment with Laboratory Corporation of America Holdings (“LabCorp”) or its subsidiaries, divisions,\nor affiliates, you will have access to, or will acquire, highly confidential information and trade secrets concerning LabCorp’s and the\nEmployer Company’s business, including, but not limited to, customer lists, pricing, methods of pricing, marketing practices,\nadvertising strategy, methods of operation and the needs and requirements of Employer Company’s and/or LabCorp’s customers. In\naddition, you will receive from LabCorp or Employer Company and/or be exposed to LabCorp’s or the Employer Company’s\nvaluable technical and marketing information that will materially aid you in the performance of your duties on behalf of the\nEmployer Company, and assist you and/or the Employer Company in furthering the Employer Company’s business interests,\nincluding establishing and retaining the Employer Company’s customers. The support furnished to you by the Employer Company\nwill enable you to increase the value of the Employer Company’s goodwill with the Employer Company’s customers, which is a\nvaluable asset of the Employer Company.\nAs indicated by the foregoing, the services you will be performing for the Employer Company will be of a special, unique and\nextraordinary nature. Accordingly, in consideration of LabCorp extending to you, as applicable, certain incentive compensation, as\nset forth in the Agreement(s) to which this Exhibit is made a part thereof and which governs the grant of said benefits, any and all of\nwhich benefits otherwise would not be provided to you absent your agreement to be bound by the terms of this\nConfidentiality/Non-Competition/Non-Solicitation Agreement (“Restrictive Covenant Agreement”), you agree that:\n1. Property Rights and Workproduct. All ideas, inventions, discoveries, computer programs, developments, standard\noperating procedures, designs, improvements, formulae, processes, techniques, programs, know-how, data, business plans,\nreports, presentations, or any other work product of possible technical or commercial importance relating to the Employer\nCompany’s business or anticipated business (hereafter collectively referred to as “Work Product”) created or developed by\nyou as part of your employment with the Employer Company shall be deemed to be work made for hire and that the\nEmployer Company shall be the sole owner of all rights, including copyright, in and to the Work Product. If such Work\nProduct, or any part thereof, does not qualify as work made for hire, you agree to assign, and hereby assign, to the Employer\nCompany for the full term of the copyright and all extensions thereof all of your right, title and interest in and to the Work\nProduct. The Employer Company may, at its own expense, prepare and process applications for copyrights, trademarks,\nservice marks, or letter patents, or may take other actions that it deems necessary or appropriate to protect itself with respect\nto the aforementioned items. You shall cooperate with the Employer Company in enforcing and protecting its rights by\nexecuting such applications or other documentation prepared for the protection\n1\nof such interests and assigning them to the Employer Company, as well as executing all papers pertaining to said inventions,\ndocuments, marks, improvements, discoveries, trade secrets, applications and protective actions.\n2. Confidentiality. You agree that during the term of your employment and for any time after your termination, you shall not,\nwithout the prior written consent of the Employer Company, divulge to any third party or use for your own benefit, or for\nany purpose other than the exclusive benefit of the Employer Company, any Confidential Information of the Employer\nCompany, LabCorp and its subsidiaries, divisions, or affiliates. In this Restrictive Covenant Agreement, Confidential\nInformation shall mean information that concerns the Employer Company’s, LabCorp’s and its subsidiaries’, divisions’, or\naffiliates’ prices, pricing methods, costs, profits, profit margins, suppliers, methods, procedures, processes or combinations\nor applications thereof developed in, by, or for the Employer Company’s business, research and development projects, data,\nbusiness strategies, marketing strategies, sales techniques, customer lists, customer information, financial information, or\nany other information concerning the Employer Company or its business that is not readily and easily available to the public\nor to those persons in the same business, trade, or industry of the Employer Company. The term “customer information” as\nused in this Restrictive Covenant Agreement shall mean information that concerns the course of dealing between the\nEmployer Company and its customers or potential customers solicited by the Employer Company, customer preferences,\nparticular contracts or locations of customers or potential customers, negotiations with customers, and any other information\nconcerning customers or potential customers obtained by the Employer Company that is not readily and easily available to\nthe public or to those in the business, trade, or industry of the Employer Company. Your obligation not to disclose\nConfidential Information does not prohibit you from (a) disclosing the information to a government agency if you are\nrequired to produce the information pursuant to a subpoena, court order, administrative order or other legal process,\n(b) discussing terms and conditions of employment or engaging in other activities protected by the National Labor Relations\nAct, (c) communicating with the Securities and Exchange Commission about securities law violations, or\n(d) communicating with any other government entity or agency if such communication is to report a violation of applicable\nlaw. However, you shall notify the Employer Company in writing within three (3) calendar days of the receipt of any\nsubpoena, court order, administrative order or other legal process requiring disclosure of Confidential Information and shall\nprovide the Employer Company with a copy of said subpoena, court order, administrative order or other legal process.\n2\n3. Non-Solicitation of LabCorp Employees. During the term of your employment and for a period of twelve (12) months\nfollowing the term of your employment, you shall not, directly or indirectly through a subordinate, co-worker, peer, or any\nother person or entity contact, solicit, encourage or induce any officer, director or employee of LabCorp or its subsidiaries\nand affiliates to work for or provide services to you and/or any other person or entity that either (i) directly provides\nproducts or services that compete with the products or services provided by the Employer Company in a geographic market\nserviced by the Employer Company or (ii) supplies, services, advises or consults with a person, trade or business that\nproducts or services that compete with the products or services provided by the Employer Company in a geographic market\nserviced by the Employer Company.\n4. Non-Solicitation of Customers. During your employment and for a period of twelve (12) months following the voluntary\nor involuntary termination of your employment, you will not either directly or indirectly through a subordinate, co-worker,\npeer or other person or entity, call upon, contact, or solicit or attempt to call upon, contact or solicit any customer or\ncustomer prospect of the Employer Company, with a view toward the sale or providing of any service or product\ncompetitive with the products and services offered by the Employer Company; provided, however, the restrictions set forth\nin Paragraph 4 shall apply only to customers or prospects of the Employer Company, or representatives of the same, with\nwhich you had contact during the last twenty-four (24) months of your employment with the Employer Company. The\nparties agree and affirm that their intention with respect to Paragraph 4 is that your activities be limited only for a twelve\n(12) month period after termination of your employment with the Employer Company for any reason. The provisions\ncalling for a “look back” of twenty-four (24) calendar months prior to the termination of employment are intended solely as\na means of identifying the customers and potential customers to which such restrictions apply and are not intended to nor\nshall they, under any circumstances, be construed to define the length or term of any such restriction.\n5. Noncompetition. During your employment and for a period of twelve (12) months following your voluntary or involuntary\ntermination of employment, you shall not become an owner in, shareholder with more than a 2% equity interest in, investor\nin, or an employee, contractor, consultant, advisor, representative, officer, director, or agent of, a trade or business that\noffers products and services that are the same or substantially similar to the products and services provided by the Employer\nCompany in any geographic market in which the Employer Company conducts business (“Competitor”); provided,\nhowever, that the duties and responsibilities of said employment or engagement as an owner in, shareholder with more than\n2% equity interest in, investor in, employee, contractor, consultant, advisor, representative, officer, director or agent are\n3\n(i) the same, similar, or substantially related to your current duties and responsibilities or duties or responsibilities\nperformed by you while employed by the Employer Company at any time during a six (6) month period prior to your date\nof termination of employment and (ii) related to or concerning the Competitor’s business activities in the Restricted\nTerritory. The parties agree and affirm that their intention with respect to Paragraph 5 is that your activities shall be limited\nonly for the twelve (12) month period after termination of employment for any reason. The provisions calling for a “look\nback” of six (6) calendar months prior to the date of termination of employment are intended solely as a means of\nidentifying the duties and responsibilities that will define the restricted activities covered by Paragraph 5 and are not\nintended to nor shall they, under any circumstances, be construed to define the length or term of any such restriction. For\npurposes of Paragraph 5, the term “Restricted Territory” means the geographic area that is part of your current duties and\nresponsibilities or the geographic area that was part of your duties and responsibilities within a period of six (6) month\nperiod prior to the date of your termination of employment. If a court of competent jurisdiction determines that the\nRestricted Territory as defined herein is too restrictive, then the parties agree that said court may reduce or limit the\nRestricted Territory to the largest acceptable area so as to enable the enforcement of Paragraph 5.\n6. Return of Confidential Information. At any time upon the request of the Employer Company or upon your termination of\nyour employment, you shall return to the Employer Company any and all Employer Company property including but not\nlimited to laptops, phones, smart phones and documents or materials in your possession, custody and control that contain\nConfidential Information. You also agree that upon termination of employment, you shall destroy any Confidential\nInformation stored on your personal computer or other data storage device. Along with the return of said documents and\nmaterials, you shall provide the Employer Company (upon the Employer Company’s request) with a sworn or written\nstatement indicating that you do not have possession, custody and control of any of the Employer Company’s Confidential\nInformation and have destroyed all of the Employer Company’s data electronically stored on your personal computer or\nother data storage device.\n7. Notice. Notice shall be effective only if it is made in writing and actually or constructively received by the individuals\nbelow. To be effective, any notice required under this Restrictive Covenant Agreement must be sent by nationally\nrecognized express delivery courier or by certified mail, return receipt requested, to the person(s) and address(es) listed\nbelow.\nSenior Vice President, Global General Counsel\nLaboratory Corporation of America Holdings\n531 South Spring Street\nBurlington, North Carolina 27215\n4\nand, if to you, notice shall be sent to your last known mailing address on record at the Employer Company. You have an obligation to\nensure that the Employer Company’s records contain your most recent address.\n8. Breach/Available Remedies.\na. Except as otherwise provided in this subparagraph, if any provision of this Restrictive Covenant Agreement shall be\ndetermined to be invalid or unenforceable by a court of competent jurisdiction, that part shall be ineffective to the\nextent of such invalidity or unenforceability only, without in any way affecting the remaining parts of said provision or\nthe remaining provisions of this Restrictive Covenant Agreement; provided, that if any provision contained in this\nRestrictive Covenant Agreement shall be adjudicated to be invalid or unenforceable because such provision is held to\nbe excessively broad as to duration, geographic scope, activity or subject, the parties agree that the said provision shall\nbe limited and reduced to the maximum extent compatible with the applicable laws of such jurisdiction, and such\namendment only to apply with respect to the operation of such provision in the applicable jurisdiction in which the\nadjudication is made.\nb. You agree that as part of this Restrictive Covenant Agreement, you will have access to the Employer Company’s\nConfidential Information, personnel, and existing and potential customers of the Employer Company. You further\nagree that the Employer Company maintains a competitive advantage over other persons or entities in the trade or\nbusiness of providing commercial medical laboratory testing services as a result of the Employer Company’s\nConfidential Information, personnel, and existing and potential customer contacts. You further agree that the\nEmployer Company will be placed at a competitive disadvantage in the event that you breach this Restrictive\nCovenant Agreement and that damages would not be an adequate or reasonable remedy in the event of such breach.\nAccordingly, you stipulate that in the event that you breach one or more of the provisions set forth in this Restrictive\nCovenant Agreement, the Employer Company will be entitled to an injunction restraining you from violating the terms\nof those paragraphs. Nothing herein shall be construed as prohibiting the Employer Company from pursuing any other\nremedy available for such breach or prospective breach.\n9. Miscellaneous.\na. Absent any other agreement to the contrary nothing herein shall be construed as giving you the right to continued\nservice or employment relationship with the Employer Company. This Agreement does not alter\n5\nor amend in any way the Employer Company’s right to terminate the employment relationship in accordance with any\noffer letter, employment contract or applicable law.\nb. You represent and warrant that you are not a party to any contract, agreement or understanding that prevents or\nprohibits you from entering into and fully performing under this Restrictive Covenant Agreement.\nc. In the event a court of law declares any provision of this Restrictive Covenant Agreement to be null and void, it is\nunderstood and agreed by you and the Employer Company that such clause shall be severed from this Restrictive\nCovenant Agreement and that the remaining provisions of this Restrictive Covenant Agreement shall continue to be\nbinding on you.\nd. It is understood and agreed by you and Laboratory Corporation of America Holdings (“LabCorp”) that this\nConfidentiality/Non-Competition/Non-Solicitation Agreement constitutes the agreement in its entirety and supersedes\nany previous Confidentiality/Non-Competition/Non-Solicitation Agreement previously executed by you as part of an\nEquity Award Agreement with LabCorp. This Confidentiality/Non-Competition/Non-Solicitation Agreement replaces\nany other non-compete, non-solicitation and confidentiality agreement which you may have previously executed in\nfavor of LabCorp or one of its subsidiary companies incorporated within the United States. This\nConfidentiality/Non-Competition/Non-Solicitation Agreement shall not replace, amend, restrict, otherwise modify or\nsupersede any employment contract or agreement between you and a foreign subsidiary of LabCorp and shall not\namend, alter or affect any non-compete, non-solicitation or confidentiality agreement executed by you and LabCorp or\nan Employer Company in connection with a merger or acquisition agreement of a business entity with whom you were\npreviously employed or affiliated, including, but not limited to, an ownership or investment interest in said entity.\ne. For purposes of this Restrictive Covenant Agreement, the Employer Company shall mean Laboratory Corporation of\nAmerica Holdings or its subsidiary and affiliated companies with whom you are employed at the commencement of\nyour employment, as well as any subsequent parent, subsidiary or affiliated company that becomes the employing\nentity in the event of a transfer, promotion, assignment, reassignment or corporate restructuring.\nf. As used herein, “affiliate” shall mean a current or future company or other business entity that, directly or indirectly, is\ncontrolled by, controls or is under common control with Laboratory Corporation of America Holdings. For the\npurposes of the preceding sentence, the meaning of the word “control” shall include, but not necessarily be limited to,\nownership of more than fifty percent (50%) of the voting shares or other interest of the Employer Company or other\nbusiness entity.\n6\ng. This Restrictive Covenant Agreement shall be binding upon you and shall inure to the benefit of the parties and their\nrespective personal representatives, heirs, affiliates, successors, and assigns. LabCorp may at its sole discretion assign\nits rights under this Restrictive Covenant Agreement.\nh. You affirm by signing this Restrictive Covenant Agreement that you have completely read this entire Restrictive\nCovenant Agreement and understand the terms and conditions included within this Restrictive Covenant Agreement.\nYou also agree that this Restrictive Covenant Agreement may not be modified or altered in any respect except in\nwriting, signed by you and LabCorp.\ni. This Restrictive Covenant Agreement shall be deemed to have been entered into in the State of North Carolina and\nshall be construed in accordance with and governed by the laws of North Carolina, to the exclusion of the laws of any\nother forum including but not limited to the laws of the State of California. You agree, acknowledge and recognize\nthat by virtue of your employment with the Employer Company, either a North Carolina corporation or a subsidiary of\na North Carolina corporation, with its principal place of business in North Carolina, and your own contacts and\nbusiness dealings with LabCorp and the Employer Company in North Carolina, North Carolina has a substantial\nrelationship to this Restrictive Covenant Agreement and a materially greater interest in applying its laws, over and to\nthe exclusion of the laws of any other forum, to the resolution of any dispute arising out of or relating to this\nRestrictive Covenant Agreement.\nj. Any action, special proceeding or other proceeding, including without limitation any request for temporary,\npreliminary, or permanent injunctive relief with respect to this Restrictive Covenant Agreement shall be brought\nexclusively in the federal or state courts of the State of North Carolina. You and the Employer Company irrevocably\nconsent to the jurisdiction of the Federal and State courts of North Carolina and you hereby consent and submit to\npersonal jurisdiction in the State of North Carolina. You and the Employer Company irrevocably waive any\nobjection, including an objection or defense based on lack of personal jurisdiction, improper venue or forum\nnon-conveniens which either may now or hereafter have to the bringing of any action or proceeding in connection\nwith this Restrictive Covenant Agreement. You acknowledge and recognize that in the event that you breach this\nRestrictive Covenant Agreement, the Employer Company may initiate a lawsuit against you in North Carolina, that\nyou waive your right to have that lawsuit be brought in a court located closer to where you may reside, and that you\n7\nwill be required to travel to and defend yourself in North Carolina. You likewise agree that to the extent you\ninstitute any action arising out of or relating to this Restrictive Covenant Agreement, it shall be brought in North\nCarolina and doing so does not present any undue burden or inconvenience to you.\nk. You shall at all times abide by such laws and regulations, including but not limited to such laws which relate to the\nimproper inducement for referrals of items or Services reimbursable by the Federal health care programs 42 U.S.C . §\n1320a-7b(b) (the “anti-kickback statute”). You acknowledge that you are (i) aware that the United States securities\nlaws prohibit any person who has material nonpublic information about the Employer Company from purchasing or\nselling securities of such Employer Company, or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities and\n(ii) familiar with the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder and agrees\nthat it will neither use, nor cause any third party to use, any Information in contravention of such Act or any such rules\nand regulations, including Rules 10b-5 and 14e-3 .\nl. Except as stated otherwise herein, this Restrictive Covenant Agreement contains the entire agreement between the\nparties hereto with respect to the subject matter hereof, and there are no representations, warranties, covenants,\nconditions, understandings or agreements other than those expressly set forth herein.\nIN WITNESS WHEREOF, the undersigned have duly executed and delivered this Agreement, or have caused this Agreement to be\nduly executed and delivered on their behalf.\nLABORATORY CORPORATION OF\nAMERICA HOLDINGS\nName:\nTitle:\nEXECUTIVE\nAdam H. Schechter\n8	Exhibit C\nCONFIDENTIALITY/NON-COMPETITION/NON-SOLICITATION AG REEMENT\nDuring the course of your employment with Laboratory Corporation of America Holdings (”LabC orp") or its subsidiaries, divisions,\nor affiliates, you will have access to, or will acquire, highly confidential information and trade secrets concerning LabC orp’ s and the\nEmployer Company' s business, including, but not limited to, customer lists, pricing, methods of pricing, marketing practices,\nadvertising strategy, methods of operation and the needs and requirements of Employer Company' s and/or LabC orp’ s customers. In\naddition, you will receive from LabC orp or Employer Company and/or be exposed to LabC orp's or the Employer Company' s\nvaluable technical and marketing information that will materially aid you in the performance of your duties on behalf of the\nEmployer Company, and assist you and/or the Employer Company in furthering the Employer Company' s business interests,\nincluding establishing and retaining the Employer Company' s customers. The support furnished to you by the Employer Company\nwill enable you to increase the value of the Employer Company' s goodwill with the Employer Company' s customers, which is a\nvaluable asset of the Employer Company.\nAs indicated by the foregoing, the services you will be performing for the Employer Company will be of a special, unique and\nextraordinary nature. Accordingly, in consideration of LabC orp extending to you, as applicable, certain incentive compensation, as\nset forth in the Agreement(s) to which this Exhibit is made a part thereof and which governs the grant of said benefits, any and all of\nwhich benefits otherwise would not be provided to you absent your agreement to be bound by the terms of this\nConfidentiality/Non-Competition/Non- Solicitation A greement (”Restrictive Covenant A greement"), you agree that:\n1. Property Rights and Workproduct. All ideas, inventions, discoveries, computer programs, developments, standard\noperating procedures, designs, improvements, formulae, processes, techniques, programs, know-how, data, business plans,\nreports, presentations, or any other work product of possible technical or commercial importance relating to the Employer\nCompany' s business or anticipated business (hereafter collectively referred to as ”W ork Product") created or developed by\nyou as part of your employment with the Employer Company shall be deemed to be work made for hire and that the\nEmployer Company shall be the sole owner of all rights, including copyright, in and to the Work Product. If such Work\nProduct, or any part thereof, does not qualify as work made for hire, you agree to assign, and hereby assign, to the Employer\nCompany for the full term of the copyright and all extensions thereof all of your right, title and interest in and to the Work\nProduct. The Employer Company may, at its own expense, prepare and process applications for copyrights, trademarks,\nservice marks, or letter patents, or may take other actions that it deems necessary or appropriate to protect itself with respect\nto the aforementioned items. Y ou shall cooperate with the Employer Company in enforcing and protecting its rights by\nexecuting such applications or other documentation prepared for the protection\n \nof such interests and assigning them to the Employer Company, as well as executing all papers pertaining to said inventions,\ndocuments, marks, improvements, discoveries, trade secrets, applications and protective actions.\nConfidentiality. Y ou agree that during the term of your employment and for any time after your termination, you shall not,\nwithout the prior written consent of the Employer Company, divulge to any third party or use for your own benefit, or for\nany purpose other than the exclusive benefit of the Employer Company, any Confidential Information of the Employer\nCompany, LabCorp and its subsidiaries, divisions, or affiliates. In this Restrictive Covenant Agreement, Confidential\nInformation shall mean information that concerns the Employer Company' s, LabCorp’ s and its subsidiaries', divisions', or\naffiliates’ prices, pricing methods, costs, profits, profit margins, suppliers, methods, procedures, processes or combinations\nor applications thereof developed in, by, or for the Employer Company' s business, research and development projects, data,\nbusiness strategies, marketing strategies, sales techniques, customer lists, customer information, financial information, or\nany other information concerning the Employer Company or its business that is not readily and easily available to the public\nor to those persons in the same business, trade, or industry of the Employer Company. The term ”customer information" as\nused in this Restrictive Covenant Agreement shall mean information that concerns the course of dealing between the\nEmployer Company and its customers or potential customers solicited by the Employer Company, customer preferences,\nparticular contracts or locations of customers or potential customers, negotiations with customers, and any other information\nconcerning customers or potential customers obtained by the Employer Company that is not readily and easily available to\nthe public or to those in the business, trade, or industry of the Employer Company. Y our obligation not to disclose\nConfidential Information does not prohibit you from (a) disclosing the information to a government agency if you are\nrequired to produce the information pursuant to a subpoena, court order, administrative order or other legal process,\n(b) discussing terms and conditions of employment or engaging in other activities protected by the National Labor Relations\nAct, (c) communicating with the Securities and Exchange Commission about securities law violations, or\n(d) communicating with any other government entity or agency if such communication is to report a violation of applicable\nlaw. However, you shall notify the Employer Company in writing within three (3) calendar days of the receipt of any\nsubpoena, court order, administrative order or other legal process requiring disclosure of Confidential Information and shall\nprovide the Employer Company with a copy of said subpoena, court order, administrative order or other legal process.\n \nNon-Solicitation of LabC orp Employees. During the term of your employment and for a period of twelve (12) months\nfollowing the term of your employment, you shall not, directly or indirectly through a subordinate, co-worker, peer, or any\nother person or entity contact, solicit, encourage or induce any officer, director or employee of LabC orp or its subsidiaries\nand affiliates to work for or provide services to you and/or any other person or entity that either (i) directly provides\nproducts or services that compete with the products or services provided by the Employer Company in a geographic market\nserviced by the Employer Company or (ii) supplies, services, advises or consults with a person, trade or business that\nproducts or services that compete with the products or services provided by the Employer Company in a geographic market\nserviced by the Employer Company.\nNon-Solicitation of Customers. During your employment and for a period of twelve (12) months following the voluntary\nor involuntary termination of your employment, you will not either directly or indirectly through a subordinate, co-worker,\npeer or other person or entity, call upon, contact, or solicit or attempt to call upon, contact or solicit any customer or\ncustomer prospect of the Employer Company, with a view toward the sale or providing of any service or product\ncompetitive with the products and services offered by the Employer Company; provided, however, the restrictions set forth\nin Paragraph 4 shall apply only to customers or prospects of the Employer Company, or representatives of the same, with\nwhich you had contact during the last twenty-four (24) months of your employment with the Employer Company. The\nparties agree and affirm that their intention with respect to Paragraph 4 is that your activities be limited only for a twelve\n(12) month period after termination of your employment with the Employer Company for any reason. The provisions\ncalling for a ”look back” of twenty-four (24) calendar months prior to the termination of employment are intended solely as\na means of identifying the customers and potential customers to which such restrictions apply and are not intended to nor\nshall they, under any circumstances, be construed to define the length or term of any such restriction.\nNoncompetition. During your employment and for a period of twelve (12) months following your voluntary or involuntary\ntermination of employment, you shall not become an owner in, shareholder with more than a 2% equity interest in, investor\nin, or an employee, contractor, consultant, advisor, representative, officer, director, or agent of, a trade or business that\noffers products and services that are the same or substantially similar to the products and services provided by the Employer\nCompany in any geographic market in which the Employer Company conducts business (”Competitor”); provided,\nhowever, that the duties and responsibilities of said employment or engagement as an owner in, shareholder with more than\n2% equity interest in, investor in, employee, contractor, consultant, advisor, representative, officer, director or agent are\n \n(i) the same, similar, or substantially related to your current duties and responsibilities or duties or responsibilities\nperformed by you while employed by the Employer Company at any time during a six (6) month period prior to your date\nof termination of employment and (ii) related to or concerning the Competitor“ s business activities in the Restricted\nTerritory. The parties agree and affirm that their intention with respect to Paragraph 5 is that your activities shall be limited\nonly for the twelve (12) month period after termination of employment for any reason. The provisions calling for a ”look\nback” of six (6) calendar months prior to the date of termination of employment are intended solely as a means of\nidentifying the duties and responsibilities that will define the restricted activities covered by Paragraph 5 and are not\nintended to nor shall they, under any circumstances, be construed to define the length or term of any such restriction. For\npurposes of Paragraph 5, the term ”Restricted Territory" means the geographic area that is part of your current duties and\nresponsibilities or the geographic area that was part of your duties and responsibilities within a period of six (6) month\nperiod prior to the date of your termination of employment. If a court of competent jurisdiction determines that the\nRestricted Territory as defined herein is too restrictive, then the parties agree that said court may reduce or limit the\nRestricted Territory to the largest acceptable area so as to enable the enforcement of Paragraph 5.\n6. Return of Confidential Information. At any time upon the request of the Employer Company or upon your termination of\nyour employment, you shall return to the Employer Company any and all Employer Company property including but not\nlimited to laptops, phones, smart phones and documents or materials in your possession, custody and control that contain\nConfidential Information. Y ou also agree that upon termination of employment, you shall destroy any Confidential\nInformation stored on your personal computer or other data storage device. Along with the return of said documents and\nmaterials, you shall provide the Employer Company (upon the Employer Company' s request) with a sworn or written\nstatement indicating that you do not have possession, custody and control of any of the Employer Company' s Confidential\nInformation and have destroyed all of the Employer Company' s data electronically stored on your personal computer or\nother data storage device.\n7. Notice. Notice shall be effective only if it is made in writing and actually or constructively received by the individuals\nbelow. To be effective, any notice required under this Restrictive Covenant Agreement must be sent by nationally\nrecognized express delivery courier or by certified mail, return receipt requested, to the person(s) and address(es) listed\nbelow.\nSenior Vice President, Global General Counsel\nLaboratory Corporation of America Holdings\n531 South Spring Street\nBurlington, North Carolina 27215\n \nand, if to you, notice shall be sent to your last known mailing address on record at the Employer Company. Y ou have an obligation to\nensure that the Employer Company' s records contain your most recent address.\n8. Breach/Available Remedies.\na. Except as otherwise provided in this subparagraph, if any provision of this Restrictive Covenant Agreement shall be\ndetermined to be invalid or unenforceable by a court of competent jurisdiction, that part shall be ineffective to the\nextent of such invalidity or unenforceability only, without in any way affecting the remaining parts of said provision or\nthe remaining provisions of this Restrictive Covenant Agreement; provided, that if any provision contained in this\nRestrictive Covenant Agreement shall be adjudicated to be invalid or unenforceable because such provision is held to\nbe excessively broad as to duration, geographic scope, activity or subject, the parties agree that the said provision shall\nbe limited and reduced to the maximum extent compatible with the applicable laws of such jurisdiction, and such\namendment only to apply with respect to the operation of such provision in the applicable jurisdiction in which the\nadjudication is made.\nb. Y ou agree that as part of this Restrictive Covenant Agreement, you will have access to the Employer Company' s\nConfidential Information, personnel, and existing and potential customers of the Employer Company. Y ou further\nagree that the Employer Company maintains a competitive advantage over other persons or entities in the trade or\nbusiness of providing commercial medical laboratory testing services as a result of the Employer Company's\nConfidential Information, personnel, and existing and potential customer contacts. Y ou further agree that the\nEmployer Company will be placed at a competitive disadvantage in the event that you breach this Restrictive\nCovenant Agreement and that damages would not be an adequate or reasonable remedy in the event of such breach.\nAccordingly, you stipulate that in the event that you breach one or more of the provisions set forth in this Restrictive\nCovenant Agreement, the Employer Company will be entitled to an injunction restraining you from violating the terms\nof those paragraphs. Nothing herein shall be construed as prohibiting the Employer Company from pursuing any other\nremedy available for such breach or prospective breach.\n9. Miscellaneous.\na. Absent any other agreement to the contrary nothing herein shall be construed as giving you the right to continued\nservice or employment relationship with the Employer Company. This Agreement does not alter\n \nor amend in any way the Employer Company' s right to terminate the employment relationship in accordance with any\noffer letter, employment contract or applicable law.\nY ou represent and warrant that you are not a party to any contract, agreement or understanding that prevents or\nprohibits you from entering into and fully performing under this Restrictive Covenant A greement.\nIn the event a court of law declares any provision of this Restrictive Covenant Agreement to be null and void, it is\nunderstood and agreed by you and the Employer Company that such clause shall be severed from this Restrictive\nCovenant Agreement and that the remaining provisions of this Restrictive Covenant Agreement shall continue to be\nbinding on you.\nIt is understood and agreed by you and Laboratory Corporation of America Holdings (”LabC orp”) that this\nConfidentiality/Non-Competition/Non-Solicitation A greement constitutes the agreement in its entirety and supersedes\nany previous Confidentiality/Non-Competition/Non-Solicitation Agreement previously executed by you as part of an\nEquity Award A greement with LabC orp. This Confidentiality/Non-Competition/Non- Solicitation A greement replaces\nany other non-compete, non- solicitation and confidentiality agreement which you may have previously executed in\nfavor of LabC orp or one of its subsidiary companies incorporated within the United States. This\nConfidentiality/Non-Competition/Non-Solicitation A greement shall not replace, amend, restrict, otherwise modify or\nsupersede any employment contract or agreement between you and a foreign subsidiary of LabCorp and shall not\namend, alter or affect any non-compete, non- solicitation or confidentiality agreement executed by you and LabC orp or\nan Employer Company in connection with a merger or acquisition agreement of a business entity with whom you were\npreviously employed or affiliated, including, but not limited to, an ownership or investment interest in said entity.\nFor purposes of this Restrictive Covenant A greement, the Employer Company shall mean Laboratory Corporation of\nAmerica Holdings or its subsidiary and affiliated companies with whom you are employed at the commencement of\nyour employment, as well as any subsequent parent, subsidiary or affiliated company that becomes the employing\nentity in the event of a transfer, promotion, assignment, reassignment or corporate restructuring.\nAs used herein, ”affiliate" shall mean a current or future company or other business entity that, directly or indirectly, is\ncontrolled by, controls or is under common control with Laboratory Corporation of America Holdings. For the\npurposes of the preceding sentence, the meaning of the word ”control” shall include, but not necessarily be limited to,\nownership of more than fifty percent (50%) of the voting shares or other interest of the Employer Company or other\nbusiness entity.\n \nThis Restrictive Covenant Agreement shall be binding upon you and shall inure to the benefit of the parties and their\nrespective personal representatives, heirs, affiliates, successors, and assigns. LabC orp may at its sole discretion assign\nits rights under this Restrictive Covenant Agreement.\nY ou affirm by signing this Restrictive Covenant Agreement that you have completely read this entire Restrictive\nCovenant Agreement and understand the terms and conditions included within this Restrictive Covenant Agreement.\nY ou also agree that this Restrictive Covenant Agreement may not be modified or altered in any respect except in\nwriting, signed by you and LabCorp.\nThis Restrictive Covenant Agreement shall be deemed to have been entered into in the State of North Carolina and\nshall be construed in accordance with and governed by the laws of North Carolina, to the exclusion of the laws of any\nother forum including but not limited to the laws of the State of California. Y ou agree, acknowledge and recognize\nthat by virtue of your employment with the Employer Company, either a North Carolina corporation or a subsidiary of\na North Carolina corporation, with its principal place of business in North Carolina, and your own contacts and\nbusiness dealings with LabC orp and the Employer Company in North Carolina, North Carolina has a substantial\nrelationship to this Restrictive Covenant A greement and a materially greater interest in applying its laws, over and to\nthe exclusion of the laws of any other forum, to the resolution of any dispute arising out of or relating to this\nRestrictive Covenant A greement.\nAny action, special proceeding or other proceeding, including without limitation any request for temporary,\npreliminary, or permanent injunctive relief with respect to this Restrictive Covenant Agreement shall be brought\nexclusively in the federal or state courts of the State of North Carolina. You and the Employer Company irrevocably\nconsent to the jurisdiction of the Federal and State courts of North Carolina and you hereby consent and submit to\npersonal jurisdiction in the State of North Carolina. You and the Employer Company irrevocably waive any\nobjection, including an objection or defense based on lack of personal jurisdiction, improper venue or forum\nnon-conveniens which either may now or hereafter have to the bringing of any action or proceeding in connection\nwith this Restrictive Covenant Agreement You acknowledge and recognize that in the event that you breach this\nRestrictive Covenant Agreement, the Employer Company may initiate a lawsuit against you in North Carolina, that\nyou waive your right to have that lawsuit be brought in a court located closer to where you may reside, and that you\n \nwill be required to travel to and defend yourself in North Carolina. You likewise agree that to the extent you\ninstitute any action arising out of or relating to this Restrictive Covenant Agreement, it shall be brought in North\nCarolina and doing so does not present any undue burden or inconvenience to you.\nk. Y ou shall at all times abide by such laws and regulations, including but not limited to such laws which relate to the\nimproper inducement for referrals of items or Services reimbursable by the Federal health care programs 42 U.S.C. §\n1320a-7b(b) (the ”anti-kickback statute"). Y ou acknowledge that you are (i) aware that the United States securities\nlaws prohibit any person who has material nonpublic information about the Employer Company from purchasing or\nselling securities of such Employer Company, or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities and\n(ii) familiar with the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder and agrees\nthat it will neither use, nor cause any third party to use, any Information in contravention of such Act or any such rules\nand regulations, including Rules 10b-5 and 14e-3.\n1. Except as stated otherwise herein, this Restrictive Covenant Agreement contains the entire agreement between the\nparties hereto with respect to the subject matter hereof, and there are no representations, warranties, covenants,\nconditions, understandings or agreements other than those expressly set forth herein.\nIN WITNESS WHEREOF, the undersigned have duly executed and delivered this A greement, or have caused this Agreement to be\nduly executed and delivered on their behalf.\nLABORATORY CORPORATION OF\nAMERICA HOLDINGS\nName:\nTitle:\nEXECUTIVE\nA dam H. Schechter	Exhibit C\nCONFIDENTHALITYNONCOMPETITIONNON SOLIOITATIONAGREEMENT\nDuring the course of your employment with Laboratory Corporation of America Holdings ("LabCorp") or its subsidiaries, divisions,\nor affiliates, you will have access to, or will acquire, highly confidential information and trade secrets concerning LabCorp's and the\nEmployer Company's business, including, but not limited to, customer lists, pricing, methods of pricing, marketing practices\nadvertising strategy, methods of operation and the needs and requirements of Employer Company's and/or LabCorp's customers.\nIn\naddition, you will receive from LabCorp or Employer Company and/or be exposed to LabCorp's or the Employer Company's\nvaluable technical and marketing information that will materially aid you in the performance of your duties on behalf of the\nEmployer Company, and assist you and/or the Employer Company in furthering the Employer Company's business interests,\nincluding establishing and retaining the Employer Company's customers. The support furnished to you by the Employer Company\nwill enable you to increase the value of the Employer Company's goodwill with the Employer Company's customers, which is a\nvaluable asset of the Employer Company.\nAs indicated by the foregoing, the services you will be performing for the Employer Company will be of a special, unique and\nextraordinary nature. A ccordingly, in consideration of LabCorp extending to you, as applicable, certain incentive compensation, as\nset forth in the A greement(s) to which this Exhibit is made a part thereof and which governs the grant of said benefits, any and all of\nwhich benefits otherwise would not be provided to you absent your agreement to be bound by the terms of this\nConfidentialityNon-Competition/Non-SolicitationA greement ("Restrictive Covenant A greement"), you agree that\n1.\nProperty Rights and Workproduct. All ideas, inventions, discoveries, computer programs, developments, standard\noperating procedures, designs, improvements, formulae, processes, techniques, programs, know-how, data, business plans,\nreports, presentations, or any other work product of possible technical or commercial importance relating to the Employer\nCompany's business or anticipated business (hereafter collectively referred to as "Work Product") created or developed by\nyou as part of your employment with the Employer Company shall be deemed to be work made for hire and that the\nEmployer Company shall be the sole owner of all rights, including copyright, in and to the Work Product. If such Work\nProduct, or any part thereof, does not qualify as work made for hire, you agree to assign, and hereby assign, to the Employer\nCompany for the full term of the copyright and all extensions thereof all of your right, title and interest in and to the Work\nProduct. The Employer Company may, at its own expense, prepare and process applications for copyrights, trademarks,\nservice marks, or letter patents, or may take other actions that it deems necessary or appropriate to protect itself with respect\nto the aforementioned items. Y ou shall cooperate with the Employer Company in enforcing and protecting its rights by\nexecuting such applications or other documentation prepared for the protection\n1\nof such interests and assigning them to the Employer Company, as well as executing all papers pertaining to said inventions,\ndocuments, marks, improvements, discoveries, trade secrets, applications and protective actions.\n2. Confidentiality. Y ou agree that during the term of your employment and for any time after your termination, you shall not,\nwithout the prior written consent of the Employer Company, divulge to any third party or use for your own benefit, or for\nany purpose other than the exclusive benefit of the Employer Company, any Confidential Information of the Employer\nCompany, LabCorp and its subsidiaries, divisions, or affiliates. In this Restrictive Covenant A greement, Confidential\nInformation shall mean information that concerns the Employer Company's, LabCorp's and its subsidiaries' divisions', or\naffiliates' prices, pricing methods, costs, profits, profit margins, suppliers, methods, procedures, processes or combinations\nor applications thereof developed in, by, or for the Employer Company's business, research and development projects, data,\nbusiness strategies, marketing strategies, sales techniques, customer lists, customer information, financial information, or\nany other information concerning the Employer Company or its business that is not readily and easily available to the public\nor to those persons in the same business, trade, or industry of the Employer Company. The term "customer information" as\nused in this Restrictive Covenant A greement shall mean information that concerns the course of dealing between the\nEmployer Company and its customers or potential customers solicited by the Employer Company, customer preferences,\nparticular contracts or locations of customers or potential customers, negotiations with customers, and any other information\nconcerning customers or potential customers obtained by the Employer Company that is not readily and easily available to\nthe public or to those in the business, trade, or industry of the Employer Company Y our obligation not to disclose\nConfidential Information does not prohibit you from (a) disclosing the information to a goverment agency if you are\nrequired to produce the information pursuant to a subpoena, court order, administrative order or other legal process,\n(b) discussing terms and conditions of employment or engaging in other activities protected by the National Labor Relations\nAct, (c) communicating with the Securities and Exchange Commission about securities law violations, or\n(d) communicating with any other government entity or agency if such communication is to report a violation of applicable\nlaw. However, you shall notify the Employer Company in writing within three (3) calendar days of the receipt of any\nsubpoena, court order, administrative order or other legal process requiring disclosure of Confidential Information and shall\nprovide the Employer Company with a copy of said subpoena, court order, administrative order or other legal process.\n2\n3. Non-Solicitation of L abc Employees. During the term of your employment and for a period of twelve (12) months\nfollowing the term of your employment you shall not, directly or indirectly through a subordinate, co-worker, peer, or any\nother person or entity contact, solicit, encourage or induce any officer, director or employee of LabCorp or its subsidiaries\nand affiliates to work for or provide services to you and/or any other person or entity that either (i) directly provides\nproducts or services that compete with the products or services provided by the Employer Company in a geographic market\nserviced by the Employer Company or (ii) supplies, services, advises or consults with a person, trade or business that\nproducts or services that compete with the products or services provided by the Employer Company in a geographic market\nserviced by the Employer Company.\n4.\nNon-Solicitation of Customers. During your employment and for a period of twelve (12) months following the voluntary\nor involuntary termination of your employment, you will not either directly or indirectly through a subordinate, co-worker,\npeer or other person or entity, call upon, contact, or solicit or attempt to call upon, contact or solicit any customer or\ncustomer prospect of the Employer Company, with a view toward the sale or providing of any service or product\ncompetitive with the products and services offered by the Employer Company; provided, however, the restrictions set forth\nin Paragraph 4 shall apply only to customers or prospects of the Employer Company, or representatives of the same, with\nwhich you had contact during the last twenty-four (24) months of your employment with the Employer Company. The\nparties agree and affirm that their intention with respect to Paragraph 4 is that your activities be limited only for a twelve\n(12) month period after termination of your employment with the Employer Company for any reason. The provisions\ncalling for a "look back" of twenty-four (24) calendar months prior to the termination of employment are intended solely as\na\nmeans of identifying the customers and potential customers to which such restrictions apply and are not intended to nor\nshall they, under any circumstances, be construed to define the length or term of any such restriction.\n5. Noncompetition. During your employment and for a period of twelve (12) months following your voluntary or involuntary\ntermination of employment, you shall not become an owner in, shareholder with more than a 2% equity interest in, investor\nin, or an employee, contractor, consultant, advisor, representative, officer, director, or agent of, a trade or business that\noffers products and services that are the same or substantially similar to the products and services provided by the Employer\nCompany in any geographic market in which the Employer Company conducts business ("Competitor"); provided,\nhowever, that the duties and responsibilities of said employment or engagement as an owner in, shareholder with more than\n2% equity interest in, investor in, employee, contractor, consultant, advisor, representative, officer, director or agent are\n3\n(i) the same, similar, or substantially related to your current duties and responsibilities or duties or responsibilities\nperformed by you while employed by the Employer Company at any time during a six (6) month period prior to your date\nof termination of employment and (ii) related to or concerning the Competitor's business activities in the Restricted\nTerritory. The parties agree and affirm that their intention with respect to Paragraph 5 is that your activities shall be limited\nonly for the twelve (12) month period after termination of employment for any reason. The provisions calling for a "look\nback" of six (6) calendar months prior to the date of termination of employment are intended solely as a means of\nidentifying the duties and responsibilities that will define the restricted activities covered by Paragraph 5 and are not\nintended to nor shall they, under any circumstances, be construed to define the length or term of any such restriction. For\npurposes of Paragraph 5, the term "Restricted Territory" means the geographic area that is part of your current duties and\nresponsibilities or the geographic area that was part of your duties and responsibilities within a period of six (6) month\nperiod prior to the date of your termination of employment. If a court of competent jurisdiction determines that the\nRestricted Territory as defined herein is too restrictive, then the parties agree that said court may reduce or limit the\nRestricted Territory to the largest acceptable area so as to enable the enforcement of Paragraph 5.\n6.\nReturn of Confidential Information. A t any time upon the request of the Employer Company or upon your termination of\nyour employment, you shall return to the Employer Company any and all Employer Company property including but not\nlimited to laptops, phones, smart phones and documents or materials in your possession, custody and control that contain\nConfidential Information. Y ou also agree that upon termination of employment, you shall destroy any Confidential\nInformation stored on your personal computer or other data storage device. Along with the return of said documents and\nmaterials, you shall provide the Employer Company (upon the Employer Company's request) with a sworn or written\nstatement indicating that you do not have possession, custody and control of any of the Employer Company's Confidential\nInformation and have destroyed all of the Employer Company's data electronically stored on your personal computer or\nother data storage device.\n7.\nNotice. Notice shall be effective only if it is made in writing and actually or constructively received by the individuals\nbelow. To be effective, any notice required under this Restrictive Covenant A greement must be sent by nationally\nrecognized express delivery courier or by certified mail, return receipt requested, to the person(s) and address(es) listed\nbelow.\nSenior Vice President, Global General Counsel\nLaboratory Corporation of America Holdings\n531 South Spring Street\nBurlington, North Carolina 27215\n4\nand, if to you, notice shall be sent to your last known mailing address on record at the Employer Company. Y ou have an obligation to\nensure that the Employer Company's records contain your most recent address.\n8.\nBreach/Available Remedies.\na.\nExcept as otherwise provided in this subparagraph, if any provision of this Restrictive Covenant A greement shall be\ndetermined to be invalid or unenforceable by a court of competent jurisdiction, that part shall be ineffective to the\nextent of such invalidity or unenforceability only, without in any way affecting the remaining parts of said provision or\nthe remaining provisions of this Restrictive Covenant A greement; provided, that if any provision contained in this\nRestrictive Covenant A greement shall be adjudicated to be invalid or unenforceable because such provision is held to\nbe excessively broad as to duration, geographic scope, activity or subject, the parties agree that the said provision shall\nbe limited and reduced to the maximum extent compatible with the applicable laws of such jurisdiction, and such\namendment only to apply with respect to the operation of such provision in the applicable jurisdiction in which the\nadjudication is made\nb.\nY ou agree that as part of this Restrictive Covenant A greement, you will have access to the Employer Company's\nConfidential Information, personnel, and existing and potential customers of the Employer Company. Y ou further\nagree that the Employer Company maintains a competitive advantage over other persons or entities in the trade or\nbusiness of providing commercial medical laboratory testing services as a result of the Employer Company's\nConfidential Information, personnel and existing and potential customer contacts. Y ou further agree that the\nEmployer Company will be placed at a competitive disadvantage in the event that you breach this Restrictive\nCovenant A greement and that damages would not be an adequate or reasonable remedy in the event of such breach.\nA ccordingly, you stipulate that in the event that you breach one or more of the provisions set forth in this Restrictive\nCovenant A greement, the Employer Company will be entitled to an injunction restraining you from violating the terms\nof those paragraphs. Nothing herein shall be construed as prohibiting the Employer Company from pursuing any other\nremedy available for such breach or prospective breach.\n9. Miscellaneous.\na.\nA bsent any other agreement to the contrary nothing herein shall be construed as giving you the right to continued\nservice or employment relationship with the Employer Company. This A greement does not alter\n5\nor amend in any way the Employer Company's right to terminate the employment relationship in accordance with any\noffer letter, employment contract or applicable law.\nb.\nY ou represent and warrant that you are not a party to any contract, agreement or understanding that prevents or\nprohibits you from entering into and fully performing under this Restrictive Covenant A greement.\nC.\nIn the event a court of law declares any provision of this Restrictive Covenant A greement to be null and void, it is\nunderstood and agreed by you and the Employer Company that such clause shall be severed from this Restrictive\nCovenant A greement and that the remaining provisions of this Restrictive Covenant A greement shall continue to be\nbinding on you.\nd.\nIt is understood and agreed by you and Laboratory Corporation of A merica Holdings ("LabCorp") that this\nConfidentialityiNon:compeitionnon- solicitationAgreement constitutes the agreement in its entirety and supersedes\nany previous Confidentiality/Non-Competition/Non-SolicitationA greement previously executed by you as part of an\nEquity A ward A greement with LabCorp. This Confidentiaity/Non-CompetitionNon-Solicitation A greement replaces\nany other non-compete, non-solicitation and confidentiality agreement which you may have previously executed in\nfavor of LabCorp or one of its subsidiary companies incorporated within the United States. This\nConfidentiality/Non-Competition/Non-SolicitationA greement shall not replace, amend, restrict, otherwise modify or\nsupersede any employment contract or agreement between you and a foreign subsidiary of LabCorp and shall not\namend, alter or affect any non-compete, non-solicitation or confidentiality agreement executed by you and LabCorp or\nan Employer Company in connection with a merger or acquisition agreement of a business entity with whom you were\npreviously employed or affiliated, including, but not limited to, an ownership or investment interest in said entity.\ne.\nFor purposes of this Restrictive Covenant A greement, the Employer Company shall mean Laboratory Corporation of\nA merica Holdings or its subsidiary and affiliated companies with whom you are employed at the commencement of\nyour employment, as well as any subsequent parent, subsidiary or affiliated company that becomes the employing\nentity in the event of a transfer, promotion, assignment, reassignment or corporate restructuring.\nf.\nAs used herein, "affiliate" shall mean a current or future company or other business entity that, directly or indirectly, is\ncontrolled by, controls or is under common control with Laboratory Corporation of America Holdings. For the\npurposes of the preceding sentence, the meaning of the word "control" shall include, but not necessarily be limited to,\nownership of more than fifty percent (50%) of the voting shares or other interest of the Employer Company or other\nbusiness entity.\n6\ng.\nThis Restrictive Covenant A greement shall be binding upon you and shall inure to the benefit of the parties and their\nrespective personal representatives, heirs, affiliates, successors, and assigns. LabCorp may at its sole discretion assign\nits rights under this Restrictive Covenant A greement.\nh.\nou affirm by signing this Restrictive Covenant A greement that you have completely read this entire Restrictive\nCovenant A greement and understand the terms and conditions included within this Restrictive Covenant A greement.\nou also agree that this Restrictive Covenant A greement may not be modified or altered in any respect except in\nwriting, signed by you and LabCorp.\ni.\nThis Restrictive Covenant A greement shall be deemed to have been entered into in the State of North Carolina and\nshall be construed in accordance with and governed by the laws of North Carolina, to the exclusion of the laws of any\nother forum including but not limited to the laws of the State of California. Y ou agree, acknowledge and recognize\nthat by virtue of your employment with the Employer Company, either a North Carolina corporation or a subsidiary of\na North Carolina corporation, with its principal place of business in North Carolina, and your own contacts and\nbusiness dealings with LabCorp and the Employer Company in North Carolina, North Carolina has a substantial\nrelationship to this Restrictive Covenant A greement and a materially greater interest in applying its laws, over and to\nthe exclusion of the laws of any other forum, to the resolution of any dispute arising out of or relating to this\nRestrictive Covenant A greement.\nj.\nAny action, special proceeding or other proceeding, including without limitation any request for temporary,\npreliminary, or permanent injunctive relief with respect to this Restrictive Covenant A greement shall be brought\nexclusively in the federal or state courts of the State of North Carolina. You and the Employer Company irrevocably\nconsent to the jurisdiction of the Federal and State courts of North Carolina and you hereby consent and submit to\npersonal jurisdiction in the State of North Carolina. You and the Employer Company irrevocably waive any\nobjection, including an objection or defense based on lack of personal jurisdiction, improper venue or forum\nnon-conveniens which either may now or hereafter have to the bringing of any action or proceeding in connection\nwith this Restrictive Covenant Agreement. You acknowledge and recognize that in the event that you breach this\nRestrictive Covenant Agreement the Employer Company may initiate a lawsuit against you in North Carolina, that\nyou waive your right to have that lawsuit be brought in a court located closer to where you may reside, and that you\n7\nwill be required to travel to and defend yourself in North Carolina. You likewise agree that to the extent you\ninstitute any action arising out of or relating to this Restrictive Covenant Agreement, it shall be brought in North\nCarolina and doing SO does not present any undue burden or inconvenience to you.\nk.\nY ou shall at all times abide by such laws and regulations, including but not limited to such laws which relate to the\nimproper inducement for referrals of items or Services reimbursable by the Federal health care programs 42 U.S.C. S\n1320a-7b(b) (the 'anti-kickback statute"). Y ou acknowledge that you are (i) aware that the United States securities\nlaws prohibit any person who has material nonpublic information about the Employer Company from purchasing or\nselling securities of such Employer Company, or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities and\n(ii) familiar with the Securities Exchange A ct of 1934 and the rules and regulations promulgated thereunder and agrees\nthat it will neither use, nor cause any third party to use, any Information in contravention of such A ct or any such rules\nand regulations, including Rules 10b-5 and 14e-3.\n1.\nExcept as stated otherwise herein, this Restrictive Covenant A greement contains the entire agreement between the\nparties hereto with respect to the subject matter hereof, and there are no representations, warranties, covenants,\nconditions, understandings or agreements other than those expressly set forth herein.\nIN WITNESS WHEREOF, the undersigned have duly executed and delivered this A greement, or have caused this A greement to be\nduly executed and delivered on their behalf.\nLABORATORY CORPORATION OF\nAMERICA HOLDINGS\nName:\nTitle:\nEXECUTIVE\nAdam H. Schechter\n8	Exhibit C\nCONFIDENTIALITY/NON-COMPETITION/NON-SOLICITATION AGREEMENT\nDuring the course of your employment with Laboratory Corporation of America Holdings (“LabCorp”) or its subsidiaries, divisions,\nor affiliates, you will have access to, or will acquire, highly confidential information and trade secrets concerning LabCorp’s and the\nEmployer Company’s business, including, but not limited to, customer lists, pricing, methods of pricing, marketing practices,\nadvertising strategy, methods of operation and the needs and requirements of Employer Company’s and/or LabCorp’s customers. In\naddition, you will receive from LabCorp or Employer Company and/or be exposed to LabCorp’s or the Employer Company’s\nvaluable technical and marketing information that will materially aid you in the performance of your duties on behalf of the\nEmployer Company, and assist you and/or the Employer Company in furthering the Employer Company’s business interests,\nincluding establishing and retaining the Employer Company’s customers. The support furnished to you by the Employer Company\nwill enable you to increase the value of the Employer Company’s goodwill with the Employer Company’s customers, which is a\nvaluable asset of the Employer Company.\nAs indicated by the foregoing, the services you will be performing for the Employer Company will be of a special, unique and\nextraordinary nature. Accordingly, in consideration of LabCorp extending to you, as applicable, certain incentive compensation, as\nset forth in the Agreement(s) to which this Exhibit is made a part thereof and which governs the grant of said benefits, any and all of\nwhich benefits otherwise would not be provided to you absent your agreement to be bound by the terms of this\nConfidentiality/Non-Competition/Non-Solicitation Agreement (“Restrictive Covenant Agreement”), you agree that:\n1. Property Rights and Workproduct. All ideas, inventions, discoveries, computer programs, developments, standard\noperating procedures, designs, improvements, formulae, processes, techniques, programs, know-how, data, business plans,\nreports, presentations, or any other work product of possible technical or commercial importance relating to the Employer\nCompany’s business or anticipated business (hereafter collectively referred to as “Work Product”) created or developed by\nyou as part of your employment with the Employer Company shall be deemed to be work made for hire and that the\nEmployer Company shall be the sole owner of all rights, including copyright, in and to the Work Product. If such Work\nProduct, or any part thereof, does not qualify as work made for hire, you agree to assign, and hereby assign, to the Employer\nCompany for the full term of the copyright and all extensions thereof all of your right, title and interest in and to the Work\nProduct. The Employer Company may, at its own expense, prepare and process applications for copyrights, trademarks,\nservice marks, or letter patents, or may take other actions that it deems necessary or appropriate to protect itself with respect\nto the aforementioned items. You shall cooperate with the Employer Company in enforcing and protecting its rights by\nexecuting such applications or other documentation prepared for the protection\n1\nof such interests and assigning them to the Employer Company, as well as executing all papers pertaining to said inventions,\ndocuments, marks, improvements, discoveries, trade secrets, applications and protective actions.\n2. Confidentiality. You agree that during the term of your employment and for any time after your termination, you shall not,\nwithout the prior written consent of the Employer Company, divulge to any third party or use for your own benefit, or for\nany purpose other than the exclusive benefit of the Employer Company, any Confidential Information of the Employer\nCompany, LabCorp and its subsidiaries, divisions, or affiliates. In this Restrictive Covenant Agreement, Confidential\nInformation shall mean information that concerns the Employer Company’s, LabCorp’s and its subsidiaries’, divisions’, or\naffiliates’ prices, pricing methods, costs, profits, profit margins, suppliers, methods, procedures, processes or combinations\nor applications thereof developed in, by, or for the Employer Company’s business, research and development projects, data,\nbusiness strategies, marketing strategies, sales techniques, customer lists, customer information, financial information, or\nany other information concerning the Employer Company or its business that is not readily and easily available to the public\nor to those persons in the same business, trade, or industry of the Employer Company. The term “customer information” as\nused in this Restrictive Covenant Agreement shall mean information that concerns the course of dealing between the\nEmployer Company and its customers or potential customers solicited by the Employer Company, customer preferences,\nparticular contracts or locations of customers or potential customers, negotiations with customers, and any other information\nconcerning customers or potential customers obtained by the Employer Company that is not readily and easily available to\nthe public or to those in the business, trade, or industry of the Employer Company. Your obligation not to disclose\nConfidential Information does not prohibit you from (a) disclosing the information to a government agency if you are\nrequired to produce the information pursuant to a subpoena, court order, administrative order or other legal process,\n(b) discussing terms and conditions of employment or engaging in other activities protected by the National Labor Relations\nAct, (c) communicating with the Securities and Exchange Commission about securities law violations, or\n(d) communicating with any other government entity or agency if such communication is to report a violation of applicable\nlaw. However, you shall notify the Employer Company in writing within three (3) calendar days of the receipt of any\nsubpoena, court order, administrative order or other legal process requiring disclosure of Confidential Information and shall\nprovide the Employer Company with a copy of said subpoena, court order, administrative order or other legal process.\n2\n3. Non-Solicitation of LabCorp Employees. During the term of your employment and for a period of twelve (12) months\nfollowing the term of your employment, you shall not, directly or indirectly through a subordinate, co-worker, peer, or any\nother person or entity contact, solicit, encourage or induce any officer, director or employee of LabCorp or its subsidiaries\nand affiliates to work for or provide services to you and/or any other person or entity that either (i) directly provides\nproducts or services that compete with the products or services provided by the Employer Company in a geographic market\nserviced by the Employer Company or (ii) supplies, services, advises or consults with a person, trade or business that\nproducts or services that compete with the products or services provided by the Employer Company in a geographic market\nserviced by the Employer Company.\n4. Non-Solicitation of Customers. During your employment and for a period of twelve (12) months following the voluntary\nor involuntary termination of your employment, you will not either directly or indirectly through a subordinate, co-worker,\npeer or other person or entity, call upon, contact, or solicit or attempt to call upon, contact or solicit any customer or\ncustomer prospect of the Employer Company, with a view toward the sale or providing of any service or product\ncompetitive with the products and services offered by the Employer Company; provided, however, the restrictions set forth\nin Paragraph 4 shall apply only to customers or prospects of the Employer Company, or representatives of the same, with\nwhich you had contact during the last twenty-four (24) months of your employment with the Employer Company. The\nparties agree and affirm that their intention with respect to Paragraph 4 is that your activities be limited only for a twelve\n(12) month period after termination of your employment with the Employer Company for any reason. The provisions\ncalling for a “look back” of twenty-four (24) calendar months prior to the termination of employment are intended solely as\na means of identifying the customers and potential customers to which such restrictions apply and are not intended to nor\nshall they, under any circumstances, be construed to define the length or term of any such restriction.\n5. Noncompetition. During your employment and for a period of twelve (12) months following your voluntary or involuntary\ntermination of employment, you shall not become an owner in, shareholder with more than a 2% equity interest in, investor\nin, or an employee, contractor, consultant, advisor, representative, officer, director, or agent of, a trade or business that\noffers products and services that are the same or substantially similar to the products and services provided by the Employer\nCompany in any geographic market in which the Employer Company conducts business (“Competitor”); provided,\nhowever, that the duties and responsibilities of said employment or engagement as an owner in, shareholder with more than\n2% equity interest in, investor in, employee, contractor, consultant, advisor, representative, officer, director or agent are\n3\n(i) the same, similar, or substantially related to your current duties and responsibilities or duties or responsibilities\nperformed by you while employed by the Employer Company at any time during a six (6) month period prior to your date\nof termination of employment and (ii) related to or concerning the Competitor’s business activities in the Restricted\nTerritory. The parties agree and affirm that their intention with respect to Paragraph 5 is that your activities shall be limited\nonly for the twelve (12) month period after termination of employment for any reason. The provisions calling for a “look\nback” of six (6) calendar months prior to the date of termination of employment are intended solely as a means of\nidentifying the duties and responsibilities that will define the restricted activities covered by Paragraph 5 and are not\nintended to nor shall they, under any circumstances, be construed to define the length or term of any such restriction. For\npurposes of Paragraph 5, the term “Restricted Territory” means the geographic area that is part of your current duties and\nresponsibilities or the geographic area that was part of your duties and responsibilities within a period of six (6) month\nperiod prior to the date of your termination of employment. If a court of competent jurisdiction determines that the\nRestricted Territory as defined herein is too restrictive, then the parties agree that said court may reduce or limit the\nRestricted Territory to the largest acceptable area so as to enable the enforcement of Paragraph 5.\n6. Return of Confidential Information. At any time upon the request of the Employer Company or upon your termination of\nyour employment, you shall return to the Employer Company any and all Employer Company property including but not\nlimited to laptops, phones, smart phones and documents or materials in your possession, custody and control that contain\nConfidential Information. You also agree that upon termination of employment, you shall destroy any Confidential\nInformation stored on your personal computer or other data storage device. Along with the return of said documents and\nmaterials, you shall provide the Employer Company (upon the Employer Company’s request) with a sworn or written\nstatement indicating that you do not have possession, custody and control of any of the Employer Company’s Confidential\nInformation and have destroyed all of the Employer Company’s data electronically stored on your personal computer or\nother data storage device.\n7. Notice. Notice shall be effective only if it is made in writing and actually or constructively received by the individuals\nbelow. To be effective, any notice required under this Restrictive Covenant Agreement must be sent by nationally\nrecognized express delivery courier or by certified mail, return receipt requested, to the person(s) and address(es) listed\nbelow.\nSenior Vice President, Global General Counsel\nLaboratory Corporation of America Holdings\n531 South Spring Street\nBurlington, North Carolina 27215\n4\nand, if to you, notice shall be sent to your last known mailing address on record at the Employer Company. You have an obligation to\nensure that the Employer Company’s records contain your most recent address.\n8. Breach/Available Remedies.\na. Except as otherwise provided in this subparagraph, if any provision of this Restrictive Covenant Agreement shall be\ndetermined to be invalid or unenforceable by a court of competent jurisdiction, that part shall be ineffective to the\nextent of such invalidity or unenforceability only, without in any way affecting the remaining parts of said provision or\nthe remaining provisions of this Restrictive Covenant Agreement; provided, that if any provision contained in this\nRestrictive Covenant Agreement shall be adjudicated to be invalid or unenforceable because such provision is held to\nbe excessively broad as to duration, geographic scope, activity or subject, the parties agree that the said provision shall\nbe limited and reduced to the maximum extent compatible with the applicable laws of such jurisdiction, and such\namendment only to apply with respect to the operation of such provision in the applicable jurisdiction in which the\nadjudication is made.\nb. You agree that as part of this Restrictive Covenant Agreement, you will have access to the Employer Company’s\nConfidential Information, personnel, and existing and potential customers of the Employer Company. You further\nagree that the Employer Company maintains a competitive advantage over other persons or entities in the trade or\nbusiness of providing commercial medical laboratory testing services as a result of the Employer Company’s\nConfidential Information, personnel, and existing and potential customer contacts. You further agree that the\nEmployer Company will be placed at a competitive disadvantage in the event that you breach this Restrictive\nCovenant Agreement and that damages would not be an adequate or reasonable remedy in the event of such breach.\nAccordingly, you stipulate that in the event that you breach one or more of the provisions set forth in this Restrictive\nCovenant Agreement, the Employer Company will be entitled to an injunction restraining you from violating the terms\nof those paragraphs. Nothing herein shall be construed as prohibiting the Employer Company from pursuing any other\nremedy available for such breach or prospective breach.\n9. Miscellaneous.\na. Absent any other agreement to the contrary nothing herein shall be construed as giving you the right to continued\nservice or employment relationship with the Employer Company. This Agreement does not alter\n5\nor amend in any way the Employer Company’s right to terminate the employment relationship in accordance with any\noffer letter, employment contract or applicable law.\nb. You represent and warrant that you are not a party to any contract, agreement or understanding that prevents or\nprohibits you from entering into and fully performing under this Restrictive Covenant Agreement.\nc. In the event a court of law declares any provision of this Restrictive Covenant Agreement to be null and void, it is\nunderstood and agreed by you and the Employer Company that such clause shall be severed from this Restrictive\nCovenant Agreement and that the remaining provisions of this Restrictive Covenant Agreement shall continue to be\nbinding on you.\nd. It is understood and agreed by you and Laboratory Corporation of America Holdings (“LabCorp”) that this\nConfidentiality/Non-Competition/Non-Solicitation Agreement constitutes the agreement in its entirety and supersedes\nany previous Confidentiality/Non-Competition/Non-Solicitation Agreement previously executed by you as part of an\nEquity Award Agreement with LabCorp. This Confidentiality/Non-Competition/Non-Solicitation Agreement replaces\nany other non-compete, non-solicitation and confidentiality agreement which you may have previously executed in\nfavor of LabCorp or one of its subsidiary companies incorporated within the United States. This\nConfidentiality/Non-Competition/Non-Solicitation Agreement shall not replace, amend, restrict, otherwise modify or\nsupersede any employment contract or agreement between you and a foreign subsidiary of LabCorp and shall not\namend, alter or affect any non-compete, non-solicitation or confidentiality agreement executed by you and LabCorp or\nan Employer Company in connection with a merger or acquisition agreement of a business entity with whom you were\npreviously employed or affiliated, including, but not limited to, an ownership or investment interest in said entity.\ne. For purposes of this Restrictive Covenant Agreement, the Employer Company shall mean Laboratory Corporation of\nAmerica Holdings or its subsidiary and affiliated companies with whom you are employed at the commencement of\nyour employment, as well as any subsequent parent, subsidiary or affiliated company that becomes the employing\nentity in the event of a transfer, promotion, assignment, reassignment or corporate restructuring.\nf. As used herein, “affiliate” shall mean a current or future company or other business entity that, directly or indirectly, is\ncontrolled by, controls or is under common control with Laboratory Corporation of America Holdings. For the\npurposes of the preceding sentence, the meaning of the word “control” shall include, but not necessarily be limited to,\nownership of more than fifty percent (50%) of the voting shares or other interest of the Employer Company or other\nbusiness entity.\n6\ng. This Restrictive Covenant Agreement shall be binding upon you and shall inure to the benefit of the parties and their\nrespective personal representatives, heirs, affiliates, successors, and assigns. LabCorp may at its sole discretion assign\nits rights under this Restrictive Covenant Agreement.\nh. You affirm by signing this Restrictive Covenant Agreement that you have completely read this entire Restrictive\nCovenant Agreement and understand the terms and conditions included within this Restrictive Covenant Agreement.\nYou also agree that this Restrictive Covenant Agreement may not be modified or altered in any respect except in\nwriting, signed by you and LabCorp.\ni. This Restrictive Covenant Agreement shall be deemed to have been entered into in the State of North Carolina and\nshall be construed in accordance with and governed by the laws of North Carolina, to the exclusion of the laws of any\nother forum including but not limited to the laws of the State of California. You agree, acknowledge and recognize\nthat by virtue of your employment with the Employer Company, either a North Carolina corporation or a subsidiary of\na North Carolina corporation, with its principal place of business in North Carolina, and your own contacts and\nbusiness dealings with LabCorp and the Employer Company in North Carolina, North Carolina has a substantial\nrelationship to this Restrictive Covenant Agreement and a materially greater interest in applying its laws, over and to\nthe exclusion of the laws of any other forum, to the resolution of any dispute arising out of or relating to this\nRestrictive Covenant Agreement.\nj. Any action, special proceeding or other proceeding, including without limitation any request for temporary,\npreliminary, or permanent injunctive relief with respect to this Restrictive Covenant Agreement shall be brought\nexclusively in the federal or state courts of the State of North Carolina. You and the Employer Company irrevocably\nconsent to the jurisdiction of the Federal and State courts of North Carolina and you hereby consent and submit to\npersonal jurisdiction in the State of North Carolina. You and the Employer Company irrevocably waive any\nobjection, including an objection or defense based on lack of personal jurisdiction, improper venue or forum\nnon-conveniens which either may now or hereafter have to the bringing of any action or proceeding in connection\nwith this Restrictive Covenant Agreement. You acknowledge and recognize that in the event that you breach this\nRestrictive Covenant Agreement, the Employer Company may initiate a lawsuit against you in North Carolina, that\nyou waive your right to have that lawsuit be brought in a court located closer to where you may reside, and that you\n7\nwill be required to travel to and defend yourself in North Carolina. You likewise agree that to the extent you\ninstitute any action arising out of or relating to this Restrictive Covenant Agreement, it shall be brought in North\nCarolina and doing so does not present any undue burden or inconvenience to you.\nk. You shall at all times abide by such laws and regulations, including but not limited to such laws which relate to the\nimproper inducement for referrals of items or Services reimbursable by the Federal health care programs 42 U.S.C . §\n1320a-7b(b) (the “anti-kickback statute”). You acknowledge that you are (i) aware that the United States securities\nlaws prohibit any person who has material nonpublic information about the Employer Company from purchasing or\nselling securities of such Employer Company, or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities and\n(ii) familiar with the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder and agrees\nthat it will neither use, nor cause any third party to use, any Information in contravention of such Act or any such rules\nand regulations, including Rules 10b-5 and 14e-3 .\nl. Except as stated otherwise herein, this Restrictive Covenant Agreement contains the entire agreement between the\nparties hereto with respect to the subject matter hereof, and there are no representations, warranties, covenants,\nconditions, understandings or agreements other than those expressly set forth herein.\nIN WITNESS WHEREOF, the undersigned have duly executed and delivered this Agreement, or have caused this Agreement to be\nduly executed and delivered on their behalf.\nLABORATORY CORPORATION OF\nAMERICA HOLDINGS\nName:\nTitle:\nEXECUTIVE\nAdam H. Schechter\n8
+8868f63bc36baf89555e0e651ae0ecec.pdf	effective_date jurisdiction party term	EX-10.9 13 dex109.htm EMPLOYMENT AND CONFIDENTIALITY/NON-COMPETITION AGREEMENT -\nJOHNSON\nExhibit 10.9\nBATS EMPLOYMENT AND\nCONFIDENTIALITY/NON-COMPETITION AGREEMENT\nTHIS AGREEMENT is made, entered into and effective as of March 9th, 2009, by and between BATS Exchange, Inc., a Delaware\ncorporation (hereinafter “Company”) and Jeromee Johnson, an individual (hereinafter “Employee”).\nWHEREAS, Company is engaged in the business of operating a registered national securities exchange, and any other legal business\nactivities; and\nWHEREAS, Company desires to hire Employee or to continue to employ Employee, and Employee desires to be hired by the Company or to\ncontinue to be employed by the Company, upon the terms and conditions set forth herein; and\nWHEREAS, Company desires to protect the interests of Company and Company’s customers and Confidential Information that may have\nbeen or that may be disclosed to Employee.\nNOW, THEREFORE, in consideration of the foregoing, of the mutual promises contained herein, the Employee’s employment and/or\ncontinued employment with the Company, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,\nthe parties agree as follows:\n1. Employment. Company hereby employs Employee and Employee accepts such employment, upon the terms and conditions hereinafter set\nforth. Employee agrees to devote Employee’s full business time to the affairs of Company and not to engage, either as an employee, partner,\nconsultant or otherwise, in any other business activity, without giving prior written notification to the Company. Employee agrees that at all times\nduring the term hereof Employee will faithfully perform the duties assigned by Company to the best of Employee’s ability. Employee acknowledges\nthat from time to time the Company may promulgate workplace policies and rules. Employee agrees to fully comply with all such policies and rules\nand understands that failure to do so may result in disciplinary action up to and including immediate discharge.\n2. Term. The term of this Agreement will commence as of the effective date of this Agreement first written above and shall continue until the\ntermination of Employee’s employment, provided, however, that the provisions of this Agreement which are intended to continue and survive after\nthe termination of this Agreement shall so continue and survive. Employment under this Agreement is “at will” which means that the employment\nrelationship between Employee and Company may be terminated at any time by either party with or without cause, with or without advance\nnotice. Notwithstanding the foregoing, Company requests, but does not require, that Employee provide at least fourteen (14) calendar days advance\nnotice of intent to terminate employment.\n3. Compensation. As compensation for the services to be rendered by Employee pursuant to this Agreement, Company will pay Employee\nsuch compensation as the Company\nshall determine, from time to time, payable on a payment schedule as the Company shall determine, but not less frequently than monthly. Such\ncompensation shall terminate upon termination of Employee’s employment hereunder. Employee also will be entitled to such other Company\nemployee benefits as are generally accorded to Company’s employees in accordance with established Company policies as they are revised from\ntime to time.\n4. Definitions. For purposes of this Agreement, the following definitions will apply:\n(a) “Inventions” means:\n(i) All inventions, designs, diagrams, schematics, algorithms, creative works, codes, improvements, modifications and\nenhancements, whether or not protected or protectable by laws relating to patents or copyrights, which are made or conceived by\nEmployee during Employee’s employment by Company, regardless whether reduced to practice during the term of this employment.\n(b) “Work Product” means all Inventions, documentation, drawings, databases, records, software, creative works, know-how and\ninformation created, in whole or in part, by Employee during Employee’s employment by Company, whether or not protected or protectable by\nlaws relating to patents or copyrights, including, but not limited to, all designs, methodologies, procedures, manuals, program listings, source\ncodes, working papers and other documentation and information related thereto.\n(c) “Confidential Information” means all financial information, customer lists, lists or other documents related to business prospects,\ndocumentation, software, flow charts, programming code, software diagrams, product plans, know-how, data and information relating to the\npast, present or future business or products of Company or any plans therefore, or relating to the past, present or future business or products of\na third party or plans therefore that are disclosed to Company, which Company does not intentionally or routinely disclose to third parties\nwithout restrictions on use or further disclosure. Confidential Information may include, but is not necessarily limited to, information that meets\nthe legal definition of “trade secret.” Employee acknowledges that the Company has taken reasonable and prudent measures to protect its\nConfidential Information including requiring Employee to execute this Agreement.\n5. Ownership and Protection of Inventions and Work Product. Company will be the exclusive owner of all Inventions and Work Product.\n(a) Employee will promptly disclose to Company all Inventions and keep accurate records relating to the conception and reduction to\npractice of all Inventions. Such records will be the exclusive property of Company, and Employee will surrender possession of such records to\nCompany upon the request of the Company or upon termination of Employee’s employment with Company, including all memoranda, notes,\nrecords, drawings, manuals, computer software, source code, and other documents and materials, and all copies thereof, and electronically\nstored versions thereof. Employee will promptly disclose to Company any and all ideas and concepts which\nEmployee may from time to time have or originate that: (i) relate to the business of Company; (ii) result from or are suggested by any work\nwhich Employee has done or may do for or on behalf of Company; or (iii) are developed, tested, improved, investigated or authored in whole\nor in part during time for which Employee was paid by Company or using any resources of Company.\n(b) Employee hereby assigns to Company, without additional consideration to Employee, the entire right, title and interest in and to the\nInventions and Work Product, all registrations or applications for registrations of rights based thereon, and in and to all other proprietary rights\nbased thereon. Employee will execute all such assignments, oaths, declarations and other documents as may be requested by Company to\nreflect the foregoing. Upon the request of the Company, or upon termination of employment, Employee will surrender to Company all\nmemoranda, notes, records, drawings, manuals, computer software, source code, and other documents and materials, and all copies thereof,\nand electronically stored versions thereof, pertaining to the Work Product.\n(c) Employee will cooperate with and provide Company with all information, documentation and assistance that Company may request\nto perfect, enforce or defend the proprietary rights in or based on the Inventions, Work Product or Confidential Information. Company, in its\nsole discretion, will determine the extent of the proprietary rights, if any, to be protected in or based on the Inventions and Work Product. All\nsuch information, documentation and assistance will be provided at no additional expense to Company, except for out-of-pocket expenses that\nEmployee may incur at Company’s request.\n(d) All Inventions and Work Product made or created by Employee will be original works and will not infringe on the rights of any third\nparty.\n(e) Notwithstanding the foregoing, this Agreement will not apply to any Invention for which no equipment, supplies, facility or\nConfidential Information of Company was used and that was developed entirely on Employee’s own time, unless:\n(i) The Invention relates directly to the business or products of Company or to Company’s actual or demonstrably anticipated\nresearch or development; or\n(ii) The Invention results from any work performed by Employee for Company.\n6. Employee Obligations Concerning Confidential Information.\n(a) During the term of Employee’s employment with Company and in perpetuity thereafter, Employee will treat Confidential Information\non a strictly confidential basis and not disclose Confidential Information to others without the prior written permission of Company, or use\nConfidential Information for any purpose, other than for the performance of services for Company.\n(b) Employee acknowledges that Confidential Information as defined herein is the sole and exclusive property of Company. Employee\nwill surrender possession of all Confidential Information to Company upon any suspension or termination of Employee’s employment with\nCompany for any reason. If, after the suspension or termination of Employee’s employment, Employee becomes aware that documents and/or\nelectronically stored data containing Company’s Confidential Information are in his possession or control, Employee will immediately\nsurrender possession of the same to Company.\n7. Proprietary Information of Others. Company understands that Employee may possess proprietary information of third parties and that\nEmployee may have ongoing obligations to third parties with respect thereto. Company expressly requires that Employee will honor such ongoing\nobligations to such third parties and that Employee will not use for the benefit of Company, or disclose to Company, any such proprietary\ninformation.\n8. Company Property. Employee agrees to take all reasonable precautions and actions necessary to safeguard and maintain Company’s\nproperty and equipment in normal operating condition, and Employee agrees to accept financial responsibility for damage or wear to property or\nequipment beyond that associated with normal business use. Employee agrees to notify Company upon any loss or damage to Company’s property\nand equipment. Upon termination, Employee will immediately return and surrender to Company all property and equipment of Company.\n9. Employee’s Obligations in Connection with Company’s Status as a Self-Regulatory Organization. Employee acknowledges that the\nCompany is a self-regulatory organization as that term is defined in the Securities Exchange Act of 1934 and that as a result, the Company and\nEmployee are required to comply with certain statutory obligations applicable to self regulatory organizations. As such, Employee covenants and\nagrees that he:\n(a) Will take no action to interfere with the Company’s ability to carry out its self-regulatory function.\n(b) Will maintain confidential all books and records of the Company pertaining to the self-regulatory function of the Company (including\nbut not limited to disciplinary matters, trading data, trading practices and audit information) that shall come into possession of the Company\nand shall not use such information for any non-regulatory purpose.\n(c) Will comply with the federal securities laws and the rules and regulations thereunder and shall cooperate with the Securities and\nExchange Commission (“SEC”) and the Company pursuant to and to the extent of their respective regulatory authority, including in respect of\nthe SEC’s oversight responsibilities regarding the Company, and the self regulatory functions and responsibilities of the Company.\n(d) Consents to the jurisdiction of the United States federal courts, the SEC, and the Company, for purposes of any suit, action or\nproceeding pursuant to the\nUnited States federal securities laws, and the rules or regulations thereunder, arising out of, or relating to, the activities of the Company, and\nwaives and agrees not to assert by way of motion, as a defense or otherwise in such suit, action, or proceeding, any claims that he is not\npersonally subject to the jurisdiction of the United States federal courts, the SEC, or the Company, that the suit, action or proceeding is an\ninconvenient forum or that the venue of the suit, action or proceeding is improper, or that the subject matter of the suit, action or proceeding\nmay not be enforced in or by such courts or agency.\n10. Competitive Activities.\n(a) During the term of Employee’s employment with the Company and for two (2) years following termination of Employee’s\nemployment for any reason, Employee will not anywhere within the United States or Canada:\n(i) Perform any services anywhere within the United States or Canada, directly or indirectly, for any person or entity whose primary\nbusiness is the operation of a displayed market for the trading of financial instruments.\n(ii) Own, directly or indirectly, an interest in any entity whose primary business is the operation of a displayed market for the\ntrading of financial instruments, except through mutual funds or similar widely diversified investment pools.\n(b) During the period of two (2) years after termination of Employee’s employment with the Company for any reason, Employee will\nnot, directly or indirectly, whether as an employee, representative, officer, director, shareholder, principal or consultant for any entity, compete\nwith the Company by soliciting or accepting the order execution business of any Customer or Prospect of the Company in the United States or\nCanada.\n(i) “Prospect” is defined as any entity or individual to whom the Company has made a sales presentation, either by telephone, in\nwriting or in person and/or submitted a proposal in order to solicit its business during the twelve (12) months preceding termination of\nEmployee’s employment for any reason.\n(ii) “Customer” is defined as any entity or individual: 1) with whom the Company had a contractual relationship at any time during\nthe twelve (12) months preceding termination of employment; or, 2) from whom the Company received payment for services or products\nof any kind during the twelve (12) months preceding termination of employment for any reason.\nDuring the period of two (2) years after termination of Employee’s employment with the Company for any reason, Employee will not, directly or\nindirectly, hire, cause to be hired, or induce any other party to hire other employees of the Company or persons who were employees of the Company\nwhile Employee was an employee of the Company.\n11. Restrictions on Performance of Agreement. Employee warrants and represents that he has the ability to enter into this Agreement and\nperform all obligations hereunder, and that there are no restrictions or obligations to third parties which would in any way detract from or affect\nEmployee’s performance hereunder.\n12. Reasonableness of Restrictions. The parties hereto hereby acknowledge that the foregoing paragraphs are reasonable and necessary for\nthe protection of the Company. Employee acknowledges that the business of the Company is highly competitive and because the Company’s\nbusiness activities are national in scope, the time and geographic restrictions on competition contained in this section of this Agreement are\nnecessary to protect the Company’s business and confidential information. In addition, the Employee further acknowledges that the Company will be\nirreparably harmed if such covenants are not specifically enforced.\n13. Governing Law and Choice of Venue. This Agreement will be governed by and interpreted in accordance with the laws of the State of\nKansas. The parties hereto agree to submit to the jurisdiction of the courts of Kansas for the purposes of enforcement of this Agreement or any action\nthat may arise relating to the employment relationship or the enforcement of this Agreement by Employee and Company. The parties further agree\nthat any such action must be brought in a court of competent jurisdiction sitting in the State of Kansas.\n14. Severability. Each of the sections contained in this Agreement will be enforceable independently of every other section in this Agreement,\nand the invalidity or unenforceability of any section will not invalidate or render unenforceable any other section contained in this Agreement.\nEmployee acknowledges that the restrictive covenants contained in this Agreement are a condition of this Agreement and are reasonable and valid in\ngeographical and temporal scope and in all other respects. If any court determines that any of the covenants contained herein, or any part of any of\nthem, is invalid or unenforceable, the remainder of such covenants and parts thereof will not thereby be affected and will be given full effect, without\nregard to the invalid portion. If any court determines that any of such covenants, or any part thereof, is invalid or unenforceable because of the\ngeographic or temporal scope of such provision, such court will reduce such scope only to the extent necessary to make such covenants valid and\nenforceable.\n15. Survival of Certain Provisions. Any termination or expiration of this Agreement or suspension of termination of Employee’s employment\nby Company notwithstanding, the provisions of this Agreement that are intended to continue and survive will so continue and survive. This\nAgreement and all rights hereunder will inure to the benefit of Company, its successors and assigns.\n16. Accounting for Profits. Employee covenants and agrees that, if he violates any of his covenants or agreements hereunder, Company will\nbe entitled to an accounting and repayment of all profits, compensation, commissions, remunerations or benefits which Employee\ndirectly or indirectly has realized and/or may realize as a result of, growing out of or in connection with any such violation.\n17. Cumulative Remedies and Fees. All rights and remedies of Company will be cumulative and Company will have the right to obtain\nspecific performance against Employee for the enforcement of this Agreement. In addition to its other remedies, Employee agrees that should\nCompany elect to remedy any actual or threatened breach of this Agreement by filing suit, Company will be entitled to a judgment and award against\nEmployee in an amount equal to Company’s reasonable attorney’s fees and costs associated with enforcement of any term of this Agreement.\n18. Equitable Relief. Employee acknowledges that, due to the unique nature of the Confidential Information, Inventions, and Work Product,\nthere may be no adequate remedy at law for any breach of the obligations hereunder, and that any such breach may allow Employee or third parties\nto unfairly compete with Company. For that reason, it is mutually agreed that upon any such breach or any threat thereof in connection with\nEmployees obligations under Paragraph 5, 6, 7, 8, 9 or 10 of this Agreement, Company will be entitled to seek appropriate equitable relief, without\nbond, in addition to whatever remedies it might have at law in connection with any breach or enforcement of Employee’s obligations hereunder or\nthe unauthorized use or release of any Confidential Information, Inventions, and/or Work Product. Employee will notify Company in writing\nimmediately upon the occurrence of any such unauthorized release or other breach of which Employee becomes aware.\n19. Arbitration of Disputes. In the event any legal or equitable claims or disputes arise out of or relate to Employee’s employment with\nCompany, the terms and conditions of employment, or the termination of employment, except as provided for in paragraph 17, the employee and\nCompany agree that any such claim or dispute will be settled by binding arbitration. This agreement to arbitrate applies to the following allegations,\ndisputes, and claims for relief, but is not limited to those listed: wrongful discharge under statutory law and common law; employment\ndiscrimination based on federal, state or local statute, ordinance or governmental regulations, including but not limited to Title VII of the Civil\nRights Act of 1964 and amendments thereto, 42 U.S .C. § 1981, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the\nFair Labor Standards Act, the Equal Pay Act, the Pregnancy Discrimination Act, the Older Workers Benefit Protection Act, the Occupational Health\nand Safety Act and the Kansas Act Against Discrimination and Kansas Age Discrimination in Employment Act; retaliatory discharge or other action;\ncompensation disputes; tortious conduct; contractual violations (although no contractual relationship, other than at-will employment and this\nagreement to arbitrate, is hereby created); ERISA violations; and other statutory and common law claims and disputes, regardless of whether the\nstatute was enacted or whether the common law doctrine was recognized at the time this Agreement was signed. Nothing herein shall be construed to\nlimit the arbitrability of a controversy or dispute which would otherwise be arbitrable under the Federal Arbitration Act. The arbitration proceedings\nshall be conducted in Kansas City, Missouri in accordance with the Rules of the American Arbitration Association (AAA) in effect at the time a\ndemand for arbitration is made. Employee is entitled to representation by an attorney throughout the proceedings at his or her own expense. The\narbitrator(s) shall have full power and authority to issue remedies in accordance with federal and state statutory and common law. The decision and\naward shall be exclusive, final, and binding on both parties, their heirs, executors, administrators, successors and assigns. The costs and expenses of\nthe arbitration shall be borne by Employee and Company as set forth in the AAA\nRules and in accordance with applicable law. Both parties understand that by agreeing to submit any claims or disputes described above to\narbitration, they are waiving their right to have their disputes resolved in court. However, this substitution of arbitration for litigation involves\nno surrender, by either party, of any substantive statutory or common law benefit, protection or defense. This provision is not intended to add to,\ncreate or imply any contractual or other right of employment. The parties’ employment relationship is at-will, and no other inference shall be drawn\nfrom this provision.\n20. Prior Agreements and Amendments. Employee hereby acknowledges receipt of a signed counterpart of this Agreement and\nacknowledges that it is Employee’s entire agreement with Company concerning the subject matter, thereby canceling, terminating and superseding\nany previous oral or written understandings or agreements with Company or any officer or representative of Company. Nothing in this Agreement\nwill be deemed to limit the right of Company to terminate employment of Employee at will, with or without cause. No amendment or modification\nof this Agreement will be valid or binding upon Company unless made in writing and signed by an officer of Company or upon Employee unless\nmade in writing and signed by him.\n21. Waiver. Employee’s or Company’s failure to insist upon strict compliance with any provision hereof or any other provision of this\nAgreement or the failure to assert any right Employee or Company may have hereunder will not be deemed to be a waiver or subsequent breach of\nsuch provision or right or any other provision or right of this Agreement.\n22. Successors. This Agreement is personal to the Employee and without the prior written consent of the Company shall not be assignable by\nthe Employee. This Agreement shall inure to the benefit of and be enforceable by the Employee’s legal representatives. This Agreement shall inure\nto the benefit of and be binding upon the Company and its successors and assigns.\n23. Notices. Any notice required by this Agreement or given in connection with it, will be in writing and will be given to the appropriate party\nby personal delivery, or by certified mail, postage prepaid, or recognized overnight delivery service.\nIf to Company:\nBATS Exchange, Inc.\n8050 Marshall Drive, Ste. 120\nLenexa, KS 66214\nAttention: HR Manager\nIf to Employee:\nJeromee Johnson\n46 Tanbark Rd\nSudbury, MA 01776\n24. EMPLOYEE’S UNDERSTANDING. EMPLOYEE HAS READ AND REVIEWED THIS ENTIRE AGREEMENT AND HAS HAD\nTHE OPPORTUNITY TO REVIEW AND DISCUSS THIS AGREEMENT WITH COUNSEL OF HIS CHOOSING. EMPLOYEE\nUNDERSTANDS THE PROVISIONS HEREOF AND THE SIGNIFICANCE AND IMPORTANCE OF THE PROVISIONS THEREOF. I\nUNDERSTAND THAT THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY\nEITHER PARTY. I ALSO UNDERSTAND THAT AS A CONDITION OF EMPLOYMENT AND CONTINUED EMPLOYMENT, I\nAGREE TO SUBMIT ANY COMPLAINTS TO AN ARBITRATOR(S) AND AGREE TO ABIDE BY AND ACCEPT THE FINAL\nDECISION OF THE ARBITRATOR(S) AS THE ULTIMATE RESOLUTION OF MY COMPLAINT(S) FOR ANY AND ALL EVENTS\nTHAT ARISE OUT OF MY EMPLOYMENT OR TERMINATION OF EMPLOYMENT AS PROVIDED FOR IN THIS AGREEMENT.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed effective the date first written above.\nCOMPANY:\nEMPLOYEE:\nBATS Exchange, Inc.\n/s/ Joe Ratterman\n/s/ Jeromee Johnson\nSignature\nName: Jeromee Johnson\nCEO\nTitle	EX-10.9 13 dex109.htm EMPLOYMENT AND CONFIDENTIALITY/NON-COMPETITION AGREEMENT -\nJOHNSON\nExhibit 10.9\nBATS EMPLOYMENT AND\nCONFIDENTIALITY/NON-COMPETITION AGREEMENT\nTHIS AGREEMENT is made, entered into and effective as of March 9th, 2009, by and between BATS Exchange, Inc., a Delaware\ncorporation (hereinafter “Company”) and Jeromee Johnson, an individual (hereinafter “Employee”).\nWHEREAS, Company is engaged in the business of operating a registered national securities exchange, and any other legal business\nactivities; and\nWHEREAS, Company desires to hire Employee or to continue to employ Employee, and Employee desires to be hired by the Company or to\ncontinue to be employed by the Company, upon the terms and conditions set forth herein; and\nWHEREAS, Company desires to protect the interests of Company and Company’s customers and Confidential Information that may have\nbeen or that may be disclosed to Employee.\nNOW, THEREFORE, in consideration of the foregoing, of the mutual promises contained herein, the Employee’s employment and/or\ncontinued employment with the Company, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,\nthe parties agree as follows:\n1. Employment. Company hereby employs Employee and Employee accepts such employment, upon the terms and conditions hereinafter set\nforth. Employee agrees to devote Employee’s full business time to the affairs of Company and not to engage, either as an employee, partner,\nconsultant or otherwise, in any other business activity, without giving prior written notification to the Company. Employee agrees that at all times\nduring the term hereof Employee will faithfully perform the duties assigned by Company to the best of Employee’s ability. Employee acknowledges\nthat from time to time the Company may promulgate workplace policies and rules. Employee agrees to fully comply with all such policies and rules\nand understands that failure to do so may result in disciplinary action up to and including immediate discharge.\n2. Term. The term of this Agreement will commence as of the effective date of this Agreement first written above and shall continue until the\ntermination of Employee’s employment, provided, however, that the provisions of this Agreement which are intended to continue and survive after\nthe termination of this Agreement shall so continue and survive. Employment under this Agreement is “at will” which means that the employment\nrelationship between Employee and Company may be terminated at any time by either party with or without cause, with or without advance\nnotice. Notwithstanding the foregoing, Company requests, but does not require, that Employee provide at least fourteen (14) calendar days advance\nnotice of intent to terminate employment.\n3. Compensation. As compensation for the services to be rendered by Employee pursuant to this Agreement, Company will pay Employee\nsuch compensation as the Company\nshall determine, from time to time, payable on a payment schedule as the Company shall determine, but not less frequently than monthly. Such\ncompensation shall terminate upon termination of Employee’s employment hereunder. Employee also will be entitled to such other Company\nemployee benefits as are generally accorded to Company’s employees in accordance with established Company policies as they are revised from\ntime to time.\n4. Definitions. For purposes of this Agreement, the following definitions will apply:\n(a) “Inventions” means:\n(i) All inventions, designs, diagrams, schematics, algorithms, creative works, codes, improvements, modifications and\nenhancements, whether or not protected or protectable by laws relating to patents or copyrights, which are made or conceived by\nEmployee during Employee’s employment by Company, regardless whether reduced to practice during the term of this employment.\n(b) “Work Product” means all Inventions, documentation, drawings, databases, records, software, creative works, know-how and\ninformation created, in whole or in part, by Employee during Employee’s employment by Company, whether or not protected or protectable by\nlaws relating to patents or copyrights, including, but not limited to, all designs, methodologies, procedures, manuals, program listings, source\ncodes, working papers and other documentation and information related thereto.\n(c) “Confidential Information” means all financial information, customer lists, lists or other documents related to business prospects,\ndocumentation, software, flow charts, programming code, software diagrams, product plans, know-how, data and information relating to the\npast, present or future business or products of Company or any plans therefore, or relating to the past, present or future business or products of\na third party or plans therefore that are disclosed to Company, which Company does not intentionally or routinely disclose to third parties\nwithout restrictions on use or further disclosure. Confidential Information may include, but is not necessarily limited to, information that meets\nthe legal definition of “trade secret.” Employee acknowledges that the Company has taken reasonable and prudent measures to protect its\nConfidential Information including requiring Employee to execute this Agreement.\n5. Ownership and Protection of Inventions and Work Product. Company will be the exclusive owner of all Inventions and Work Product.\n(a) Employee will promptly disclose to Company all Inventions and keep accurate records relating to the conception and reduction to\npractice of all Inventions. Such records will be the exclusive property of Company, and Employee will surrender possession of such records to\nCompany upon the request of the Company or upon termination of Employee’s employment with Company, including all memoranda, notes,\nrecords, drawings, manuals, computer software, source code, and other documents and materials, and all copies thereof, and electronically\nstored versions thereof. Employee will promptly disclose to Company any and all ideas and concepts which\nEmployee may from time to time have or originate that: (i) relate to the business of Company; (ii) result from or are suggested by any work\nwhich Employee has done or may do for or on behalf of Company; or (iii) are developed, tested, improved, investigated or authored in whole\nor in part during time for which Employee was paid by Company or using any resources of Company.\n(b) Employee hereby assigns to Company, without additional consideration to Employee, the entire right, title and interest in and to the\nInventions and Work Product, all registrations or applications for registrations of rights based thereon, and in and to all other proprietary rights\nbased thereon. Employee will execute all such assignments, oaths, declarations and other documents as may be requested by Company to\nreflect the foregoing. Upon the request of the Company, or upon termination of employment, Employee will surrender to Company all\nmemoranda, notes, records, drawings, manuals, computer software, source code, and other documents and materials, and all copies thereof,\nand electronically stored versions thereof, pertaining to the Work Product.\n(c) Employee will cooperate with and provide Company with all information, documentation and assistance that Company may request\nto perfect, enforce or defend the proprietary rights in or based on the Inventions, Work Product or Confidential Information. Company, in its\nsole discretion, will determine the extent of the proprietary rights, if any, to be protected in or based on the Inventions and Work Product. All\nsuch information, documentation and assistance will be provided at no additional expense to Company, except for out-of-pocket expenses that\nEmployee may incur at Company’s request.\n(d) All Inventions and Work Product made or created by Employee will be original works and will not infringe on the rights of any third\nparty.\n(e) Notwithstanding the foregoing, this Agreement will not apply to any Invention for which no equipment, supplies, facility or\nConfidential Information of Company was used and that was developed entirely on Employee’s own time, unless:\n(i) The Invention relates directly to the business or products of Company or to Company’s actual or demonstrably anticipated\nresearch or development; or\n(ii) The Invention results from any work performed by Employee for Company.\n6. Employee Obligations Concerning Confidential Information.\n(a) During the term of Employee’s employment with Company and in perpetuity thereafter, Employee will treat Confidential Information\non a strictly confidential basis and not disclose Confidential Information to others without the prior written permission of Company, or use\nConfidential Information for any purpose, other than for the performance of services for Company.\n(b) Employee acknowledges that Confidential Information as defined herein is the sole and exclusive property of Company. Employee\nwill surrender possession of all Confidential Information to Company upon any suspension or termination of Employee’s employment with\nCompany for any reason. If, after the suspension or termination of Employee’s employment, Employee becomes aware that documents and/or\nelectronically stored data containing Company’s Confidential Information are in his possession or control, Employee will immediately\nsurrender possession of the same to Company.\n7. Proprietary Information of Others. Company understands that Employee may possess proprietary information of third parties and that\nEmployee may have ongoing obligations to third parties with respect thereto. Company expressly requires that Employee will honor such ongoing\nobligations to such third parties and that Employee will not use for the benefit of Company, or disclose to Company, any such proprietary\ninformation.\n8. Company Property. Employee agrees to take all reasonable precautions and actions necessary to safeguard and maintain Company’s\nproperty and equipment in normal operating condition, and Employee agrees to accept financial responsibility for damage or wear to property or\nequipment beyond that associated with normal business use. Employee agrees to notify Company upon any loss or damage to Company’s property\nand equipment. Upon termination, Employee will immediately return and surrender to Company all property and equipment of Company.\n9. Employee’s Obligations in Connection with Company’s Status as a Self-Regulatory Organization. Employee acknowledges that the\nCompany is a self-regulatory organization as that term is defined in the Securities Exchange Act of 1934 and that as a result, the Company and\nEmployee are required to comply with certain statutory obligations applicable to self regulatory organizations. As such, Employee covenants and\nagrees that he:\n(a) Will take no action to interfere with the Company’s ability to carry out its self-regulatory function.\n(b) Will maintain confidential all books and records of the Company pertaining to the self-regulatory function of the Company (including\nbut not limited to disciplinary matters, trading data, trading practices and audit information) that shall come into possession of the Company\nand shall not use such information for any non-regulatory purpose.\n(c) Will comply with the federal securities laws and the rules and regulations thereunder and shall cooperate with the Securities and\nExchange Commission (“SEC”) and the Company pursuant to and to the extent of their respective regulatory authority, including in respect of\nthe SEC’s oversight responsibilities regarding the Company, and the self regulatory functions and responsibilities of the Company.\n(d) Consents to the jurisdiction of the United States federal courts, the SEC, and the Company, for purposes of any suit, action or\nproceeding pursuant to the\nUnited States federal securities laws, and the rules or regulations thereunder, arising out of, or relating to, the activities of the Company, and\nwaives and agrees not to assert by way of motion, as a defense or otherwise in such suit, action, or proceeding, any claims that he is not\npersonally subject to the jurisdiction of the United States federal courts, the SEC, or the Company, that the suit, action or proceeding is an\ninconvenient forum or that the venue of the suit, action or proceeding is improper, or that the subject matter of the suit, action or proceeding\nmay not be enforced in or by such courts or agency.\n10. Competitive Activities.\n(a) During the term of Employee’s employment with the Company and for two (2) years following termination of Employee’s\nemployment for any reason, Employee will not anywhere within the United States or Canada:\n(i) Perform any services anywhere within the United States or Canada, directly or indirectly, for any person or entity whose primary\nbusiness is the operation of a displayed market for the trading of financial instruments.\n(ii) Own, directly or indirectly, an interest in any entity whose primary business is the operation of a displayed market for the\ntrading of financial instruments, except through mutual funds or similar widely diversified investment pools.\n(b) During the period of two (2) years after termination of Employee’s employment with the Company for any reason, Employee will\nnot, directly or indirectly, whether as an employee, representative, officer, director, shareholder, principal or consultant for any entity, compete\nwith the Company by soliciting or accepting the order execution business of any Customer or Prospect of the Company in the United States or\nCanada.\n(i) “Prospect” is defined as any entity or individual to whom the Company has made a sales presentation, either by telephone, in\nwriting or in person and/or submitted a proposal in order to solicit its business during the twelve (12) months preceding termination of\nEmployee’s employment for any reason.\n(ii) “Customer” is defined as any entity or individual: 1) with whom the Company had a contractual relationship at any time during\nthe twelve (12) months preceding termination of employment; or, 2) from whom the Company received payment for services or products\nof any kind during the twelve (12) months preceding termination of employment for any reason.\nDuring the period of two (2) years after termination of Employee’s employment with the Company for any reason, Employee will not, directly or\nindirectly, hire, cause to be hired, or induce any other party to hire other employees of the Company or persons who were employees of the Company\nwhile Employee was an employee of the Company.\n11. Restrictions on Performance of Agreement. Employee warrants and represents that he has the ability to enter into this Agreement and\nperform all obligations hereunder, and that there are no restrictions or obligations to third parties which would in any way detract from or affect\nEmployee’s performance hereunder.\n12. Reasonableness of Restrictions. The parties hereto hereby acknowledge that the foregoing paragraphs are reasonable and necessary for\nthe protection of the Company. Employee acknowledges that the business of the Company is highly competitive and because the Company’s\nbusiness activities are national in scope, the time and geographic restrictions on competition contained in this section of this Agreement are\nnecessary to protect the Company’s business and confidential information. In addition, the Employee further acknowledges that the Company will be\nirreparably harmed if such covenants are not specifically enforced.\n13. Governing Law and Choice of Venue. This Agreement will be governed by and interpreted in accordance with the laws of the State of\nKansas. The parties hereto agree to submit to the jurisdiction of the courts of Kansas for the purposes of enforcement of this Agreement or any action\nthat may arise relating to the employment relationship or the enforcement of this Agreement by Employee and Company. The parties further agree\nthat any such action must be brought in a court of competent jurisdiction sitting in the State of Kansas.\n14. Severability. Each of the sections contained in this Agreement will be enforceable independently of every other section in this Agreement,\nand the invalidity or unenforceability of any section will not invalidate or render unenforceable any other section contained in this Agreement.\nEmployee acknowledges that the restrictive covenants contained in this Agreement are a condition of this Agreement and are reasonable and valid in\ngeographical and temporal scope and in all other respects. If any court determines that any of the covenants contained herein, or any part of any of\nthem, is invalid or unenforceable, the remainder of such covenants and parts thereof will not thereby be affected and will be given full effect, without\nregard to the invalid portion. If any court determines that any of such covenants, or any part thereof, is invalid or unenforceable because of the\ngeographic or temporal scope of such provision, such court will reduce such scope only to the extent necessary to make such covenants valid and\nenforceable.\n15. Survival of Certain Provisions. Any termination or expiration of this Agreement or suspension of termination of Employee’s employment\nby Company notwithstanding, the provisions of this Agreement that are intended to continue and survive will so continue and survive. This\nAgreement and all rights hereunder will inure to the benefit of Company, its successors and assigns.\n16. Accounting for Profits. Employee covenants and agrees that, if he violates any of his covenants or agreements hereunder, Company will\nbe entitled to an accounting and repayment of all profits, compensation, commissions, remunerations or benefits which Employee\ndirectly or indirectly has realized and/or may realize as a result of, growing out of or in connection with any such violation.\n17. Cumulative Remedies and Fees. All rights and remedies of Company will be cumulative and Company will have the right to obtain\nspecific performance against Employee for the enforcement of this Agreement. In addition to its other remedies, Employee agrees that should\nCompany elect to remedy any actual or threatened breach of this Agreement by filing suit, Company will be entitled to a judgment and award against\nEmployee in an amount equal to Company’s reasonable attorney’s fees and costs associated with enforcement of any term of this Agreement.\n18. Equitable Relief. Employee acknowledges that, due to the unique nature of the Confidential Information, Inventions, and Work Product,\nthere may be no adequate remedy at law for any breach of the obligations hereunder, and that any such breach may allow Employee or third parties\nto unfairly compete with Company. For that reason, it is mutually agreed that upon any such breach or any threat thereof in connection with\nEmployees obligations under Paragraph 5, 6, 7, 8, 9 or 10 of this Agreement, Company will be entitled to seek appropriate equitable relief, without\nbond, in addition to whatever remedies it might have at law in connection with any breach or enforcement of Employee’s obligations hereunder or\nthe unauthorized use or release of any Confidential Information, Inventions, and/or Work Product. Employee will notify Company in writing\nimmediately upon the occurrence of any such unauthorized release or other breach of which Employee becomes aware.\n19. Arbitration of Disputes. In the event any legal or equitable claims or disputes arise out of or relate to Employee’s employment with\nCompany, the terms and conditions of employment, or the termination of employment, except as provided for in paragraph 17, the employee and\nCompany agree that any such claim or dispute will be settled by binding arbitration. This agreement to arbitrate applies to the following allegations,\ndisputes, and claims for relief, but is not limited to those listed: wrongful discharge under statutory law and common law; employment\ndiscrimination based on federal, state or local statute, ordinance or governmental regulations, including but not limited to Title VII of the Civil\nRights Act of 1964 and amendments thereto, 42 U.S.C. § 1981, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the\nFair Labor Standards Act, the Equal Pay Act, the Pregnancy Discrimination Act, the Older Workers Benefit Protection Act, the Occupational Health\nand Safety Act and the Kansas Act Against Discrimination and Kansas Age Discrimination in Employment Act; retaliatory discharge or other action;\ncompensation disputes; tortious conduct; contractual violations (although no contractual relationship, other than at-will employment and this\nagreement to arbitrate, is hereby created); ERISA violations; and other statutory and common law claims and disputes, regardless of whether the\nstatute was enacted or whether the common law doctrine was recognized at the time this Agreement was signed. Nothing herein shall be construed to\nlimit the arbitrability of a controversy or dispute which would otherwise be arbitrable under the Federal Arbitration Act. The arbitration proceedings\nshall be conducted in Kansas City, Missouri in accordance with the Rules of the American Arbitration Association (AAA) in effect at the time a\ndemand for arbitration is made. Employee is entitled to representation by an attorney throughout the proceedings at his or her own expense. The\narbitrator(s) shall have full power and authority to issue remedies in accordance with federal and state statutory and common law. The decision and\naward shall be exclusive, final, and binding on both parties, their heirs, executors, administrators, successors and assigns. The costs and expenses of\nthe arbitration shall be borne by Employee and Company as set forth in the AAA\nRules and in accordance with applicable law. Both parties understand that by agreeing to submit any claims or disputes described above to\narbitration, they are waiving their right to have their disputes resolved in court. However, this substitution of arbitration for litigation involves\nno surrender, by either party, of any substantive statutory or common law benefit, protection or defense. This provision is not intended to add to,\ncreate or imply any contractual or other right of employment. The parties’ employment relationship is at-will, and no other inference shall be drawn\nfrom this provision.\n20. Prior Agreements and Amendments. Employee hereby acknowledges receipt of a signed counterpart of this Agreement and\nacknowledges that it is Employee’s entire agreement with Company concerning the subject matter, thereby canceling, terminating and superseding\nany previous oral or written understandings or agreements with Company or any officer or representative of Company. Nothing in this Agreement\nwill be deemed to limit the right of Company to terminate employment of Employee at will, with or without cause. No amendment or modification\nof this Agreement will be valid or binding upon Company unless made in writing and signed by an officer of Company or upon Employee unless\nmade in writing and signed by him.\n21. Waiver. Employee’s or Company’s failure to insist upon strict compliance with any provision hereof or any other provision of this\nAgreement or the failure to assert any right Employee or Company may have hereunder will not be deemed to be a waiver or subsequent breach of\nsuch provision or right or any other provision or right of this Agreement.\n22. Successors. This Agreement is personal to the Employee and without the prior written consent of the Company shall not be assignable by\nthe Employee. This Agreement shall inure to the benefit of and be enforceable by the Employee’s legal representatives. This Agreement shall inure\nto the benefit of and be binding upon the Company and its successors and assigns.\n23. Notices. Any notice required by this Agreement or given in connection with it, will be in writing and will be given to the appropriate party\nby personal delivery, or by certified mail, postage prepaid, or recognized overnight delivery service.\nIf to Company:\nBATS Exchange, Inc.\n8050 Marshall Drive, Ste. 120\nLenexa, KS 66214\nAttention: HR Manager\nIf to Employee:\nJeromee Johnson\n46 Tanbark Rd\nSudbury, MA 01776\n24. EMPLOYEE’S UNDERSTANDING. EMPLOYEE HAS READ AND REVIEWED THIS ENTIRE AGREEMENT AND HAS HAD\nTHE OPPORTUNITY TO REVIEW AND DISCUSS THIS AGREEMENT WITH COUNSEL OF HIS CHOOSING. EMPLOYEE\nUNDERSTANDS THE PROVISIONS HEREOF AND THE SIGNIFICANCE AND IMPORTANCE OF THE PROVISIONS THEREOF. 1\nUNDERSTAND THAT THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY\nEITHER PARTY. I ALSO UNDERSTAND THAT AS A CONDITION OF EMPLOYMENT AND CONTINUED EMPLOYMENT, I\nAGREE TO SUBMIT ANY COMPLAINTS TO AN ARBITRATOR(S) AND AGREE TO ABIDE BY AND ACCEPT THE FINAL\nDECISION OF THE ARBITRATOR(S) AS THE ULTIMATE RESOLUTION OF MY COMPLAINT(S) FOR ANY AND ALL EVENTS\nTHAT ARISE OUT OF MY EMPLOYMENT OR TERMINATION OF EMPLOYMENT AS PROVIDED FOR IN THIS AGREEMENT.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed effective the date first written above.\nCOMPANY: EMPLOYEE:\nBATS Exchange, Inc.\n/s/ Joe Ratterman /s/ Jeromee Johnson\nSignature Name: Jeromee Johnson\nCEO\nTitle	EX-10.9 13 dex109.htm EMPLOYMENT AND CONFIDENTIALITY/NON-COMPETITION AGREEMENT\nJOHNSON\nExhibit 10.9\nBATS EMPLOYMENT AND\nCONFIDENTIALITYNON-COMPETITION/ AGREEMENT\nTHIS AGREEMENT is made, entered into and effective as of March 9th, 2009, by and between BATS Exchange, Inc., a Delaware\ncorporation (hereinafter "Company") and Jeromee Johnson, an individual (hereinafter "Employee").\nWHEREAS, Company is engaged in the business of operating a registered national securities exchange, and any other legal business\nactivities; and\nWHEREAS, Company desires to hire Employee or to continue to employ Employee, and Employee desires to be hired by the Company or to\ncontinue to be employed by the Company, upon the terms and conditions set forth herein; and\nWHEREAS, Company desires to protect the interests of Company and Company's customers and Confidential Information that may have\nbeen or that may be disclosed to Employee.\nNOW, THEREFORE, in consideration of the foregoing, of the mutual promises contained herein, the Employee's employment and/or\ncontinued employment with the Company, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,\nthe parties agree as follows:\n1. Employment. Company hereby employs Employee and Employee accepts such employment, upon the terms and conditions hereinafter set\nforth. Employee agrees to devote Employee's full business time to the affairs of Company and not to engage, either as an employee, partner,\nconsultant or otherwise, in any other business activity, without giving prior written notification to the Company. Employee agrees that at all times\nduring the term hereof Employee will faithfully perform the duties assigned by Company to the best of Employee's ability. Employee acknowledges\nthat from time to time the Company may promulgate workplace policies and rules. Employee agrees to fully comply with all such policies and rules\nand understands that failure to do so may result in disciplinary action up to and including immediate discharge.\n2. Term. The term of this Agreement will commence as of the effective date of this Agreement first written above and shall continue until the\ntermination of Employee's employment, provided, however, that the provisions of this Agreement which are intended to continue and survive after\nthe termination of this Agreement shall so continue and survive. Employment under this Agreement is "at will" which means that the employment\nrelationship between Employee and Company may be terminated at any time by either party with or without cause, with or without advance\nnotice. Notwithstanding the foregoing, Company requests, but does not require, that Employee provide at least fourteen (14) calendar days advance\nnotice of intent to terminate employment.\n3. Compensation. As compensation for the services to be rendered by Employee pursuant to this Agreement, Company will pay Employee\nsuch compensation as the Company\nshall determine, from time to time, payable on a payment schedule as the Company shall determine, but not less frequently than monthly. Such\ncompensation shall terminate upon termination of Employee's employment hereunder. Employee also will be entitled to such other Company\nemployee benefits as are generally accorded to Company's employees in accordance with established Company policies as they are revised from\ntime to time.\n4. Definitions. For purposes of this Agreement, the following definitions will apply:\n(a) "Inventions" means:\n(i) All inventions, designs, diagrams, schematics, algorithms, creative works, codes, improvements, modifications and\nenhancements, whether or not protected or protectable by laws relating to patents or copyrights, which are made or conceived by\nEmployee during Employee's employment by Company, regardless whether reduced to practice during the term of this employment.\n(b) "Work Product" means all Inventions, documentation, drawings, databases, records, software, creative works, know-how and\ninformation created, in whole or in part, by Employee during Employee's employment by Company, whether or not protected or protectable by\nlaws relating to patents or copyrights, including, but not limited to, all designs, methodologies, procedures, manuals, program listings, source\ncodes, working papers and other documentation and information related thereto.\n(c) "Confidential Information" means all financia information, customer lists, lists or other documents related to business prospects,\ndocumentation, software, flow charts, programming code, software diagrams, product plans, know-how, data and information relating to the\npast, present or future business or products of Company or any plans therefore, or relating to the past, present or future business or products of\na third party or plans therefore that are disclosed to Company, which Company does not intentionally or routinely disclose to third parties\nwithout\nrestrictions\non\nuse\nor\nfurther\ndisclosure.\nConfidential\nInformation\nmay\ninclude,\nbut\nis\nnot\nnecessarily\nlimited\nto,\ninformation\nthat\nmeets\nthe legal definition of "trade secret." Employee acknowledges that the Company has taken reasonable and prudent measures to protect its\nConfidential Information including requiring Employee to execute this Agreement.\n5. Ownership and Protection of Inventions and Work Product. Company will be the exclusive owner of all Inventions and Work Product.\n(a) Employee will promptly disclose to Company all Inventions and keep accurate records relating to the conception and reduction to\npractice of all Inventions. Such records will be the exclusive property of Company, and Employee will surrender possession of such records\nto\nCompany upon the request of the Company or upon termination of Employee's employment with Company, including all memoranda, notes,\nrecords, drawings, manuals, computer software, source code, and other documents and materials, and all copies thereof, and electronically\nstored versions thereof. Employee will promptly disclose to Company any and all ideas and concepts which\nEmployee may from time to time have or originate that: (i) relate to the business of Company; (ii) result from or are suggested by any work\nwhich Employee has done or may do for or on behalf of Company; or (iii) are developed, tested, improved, investigated or authored in whole\nor in part during time for which Employee was paid by Company or using any resources of Company.\n(b) Employee hereby assigns to Company, without additional consideration to Employee, the entire right, title and interest in and to the\nInventions and Work Product, all registrations or applications for registrations of rights based thereon, and in and to all other proprietary rights\nbased thereon. Employee will execute all such assignments, oaths, declarations and other documents as may be requested by Company to\nreflect the foregoing. Upon the request of the Company, or upon termination of employment, Employee will surrender to Company all\nmemoranda, notes, records, drawings, manuals, computer software, source code, and other documents and materials, and all copies thereof,\nand electronically stored versions thereof, pertaining to the Work Product.\n(c) Employee will cooperate with and provide Company with all information, documentation and assistance that Company may request\nto perfect, enforce or defend the proprietary rights in or based on the Inventions, Work Product or Confidential Information. Company, in its\nsole discretion, will determine the extent of the proprietary rights, if any, to be protected in or based on the Inventions and Work Product. All\nsuch information, documentation and assistance will be provided at no additional expense to Company, except for out-of-pocket expenses that\nEmployee may incur at Company's request.\n(d) All Inventions and Work Product made or created by Employee will be original works and will not infringe on the rights of any third\nparty.\n(e) Notwithstanding the foregoing, this Agreement will not apply to any Invention for which no equipment, supplies, facility or\nConfidential Information of Company was used and that was developed entirely on Employee's own time, unless:\n(i) The Invention relates directly to the business or products of Company or to Company's actual or demonstrably anticipated\nresearch or development; or\n(ii) The Invention results from any work performed by Employee for Company.\n6. Employee Obligations Concerning Confidential Information.\n(a) During the term of Employee's employment with Company and in perpetuity thereafter, Employee will treat Confidential Information\non a strictly. confidential basis and not disclose Confidential Information to others without the prior written permission of Company, or use\nConfidential Information for any purpose, other than for the performance of services for Company.\n(b) Employee acknowledges that Confidential Information as defined herein is the sole and exclusive property of Company. Employee\nwill surrender possession of all Confidential Information to Company upon any suspension or termination of Employee's employment with\nCompany for any reason. If, after the suspension or termination of Employee's employment, Employee becomes aware that documents and/or\nelectronically stored data containing Company's Confidential Information are in his possession or control, Employee will immediately.\nsurrender possession of the same to Company.\n7. Proprietary Information of Others. Company understands that Employee may possess proprietary information of third parties and that\nEmployee may have ongoing obligations to third parties with respect thereto. Company expressly requires that Employee will honor such ongoing\nobligations to such third parties and that Employee will not use for the benefit of Company, or disclose to Company, any such proprietary\ninformation.\n8.\nCompany Property. Employee agrees to take all reasonable precautions and actions necessary to safeguard and maintain Company's\nproperty and equipment in normal operating condition, and Employee agrees to accept financial responsibility for damage or wear to property or\nequipment beyond that associated with normal business use. Employee agrees to notify Company upon any loss or damage to Company's property\nand equipment. Upon termination, Employee will immediately return and surrender to Company all property and equipment of Company.\n9. Employee's Obligations in Connection with Company's Status as a Self-Regulatory Organization. Employee acknowledges that the\nCompany\nis\na\nself-regulatory organization as that term is defined in the Securities Exchange Act of 1934 and that as a result, the Company and\nEmployee are required to comply with certain statutory obligations applicable to self regulatory organizations. As such, Employee covenants and\nagrees that he:\n(a) Will take no action to interfere with the Company's ability to carry out its self-regulatory function.\n(b) Will maintain confidential all books and records of the Company pertaining to the self-regulatory function of the Company (including\nbut not limited to disciplinary matters, trading data, trading practices and audit information) that shall come into possession of the Company\nand shall not use such information for any non-regulatory purpose.\n(c) Will comply with the federal securities laws and the rules and regulations thereunder and shall cooperate with the Securities and\nExchange Commission ("SEC") and the Company pursuant to and to the extent of their respective regulatory authority, including in respect\nof\nthe SEC's oversight responsibilities regarding the Company, and the self regulatory functions and responsibilities of the Company.\n(d) Consents to the jurisdiction of the United States federal courts, the SEC, and the Company, for purposes of any suit, action or\nproceeding pursuant to the\nUnited States federal securities laws, and the rules or regulations thereunder, arising out of, or relating to, the activities of the Company, and\nwaives and agrees not to assert by way of motion, as a defense or otherwise in such suit, action, or proceeding, any claims that he is not\npersonally subject to the jurisdiction of the United States federal courts, the SEC, or the Company, that the suit, action or proceeding is an\ninconvenient forum or that the venue of the suit, action or proceeding is improper, or that the subject matter of the suit, action or proceeding\nmay not be enforced in or by such courts or agency.\n10. Competitive Activities.\n(a) During the term of Employee's employment with the Company and for two (2) years following termination of Employee's\nemployment for any reason, Employee will not anywhere within the United States or Canada:\n(i) Perform any services anywhere within the United States or Canada, directly or indirectly, for any person or entity whose primary\nbusiness is the operation of a displayed market for the trading of financial instruments.\n(ii) Own, directly or indirectly, an interest in any entity whose primary business is the operation of a displayed market for the\ntrading of financial instruments, except through mutual funds or similar widely diversified investment pools.\n(b) During the period of two (2) years after termination of Employee's employment with the Company for any reason, Employee will\nnot, directly or indirectly, whether as an employee, representative, officer, director, shareholder, principal or consultant for any entity, compete\nwith the Company by soliciting or accepting the order execution business of any Customer or Prospect of the Company in the United States or\nCanada.\n(i) "Prospect" is defined as any entity or individual to whom the Company has made a sales presentation, either by telephone, in\nwriting or in person and/or submitted a proposal in order to solicit its business during the twelve (12) months preceding termination of\nEmployee's employment for any reason.\n(ii) "Customer" is defined as any entity or individual: 1) with whom the Company had a contractual relationship at any time during\nthe twelve (12) months preceding termination of employment; or, 2) from whom the Company received payment for services or products\nof any kind during the twelve (12) months preceding termination of employment for any reason.\nDuring the period of two (2) years after termination of Employee's employment with the Company for any reason, Employee will not, directly or\nindirectly, hire, cause to be hired, or induce any other party to hire other employees of the Company or persons who were employees of the Company\nwhile Employee was an employee of the Company.\n11. Restrictions on Performance of Agreement. Employee warrants and represents that he has the ability to enter into this Agreement and\nperform all obligations hereunder, and that there are no restrictions or obligations to third parties which would in any way detract from or affect\nEmployee's performance hereunder.\n12. Reasonableness of Restrictions. The parties hereto hereby acknowledge that the foregoing paragraphs are reasonable and necessary for\nthe protection of the Company. Employee acknowledges that the business of the Company is highly competitive and because the Company's\nbusiness activities are national in scope, the time and geographic restrictions on competition contained in this section of this Agreement are\nnecessary to protect the Company's business and confidential information. In addition, the Employee further acknowledges that the Company will be\nirreparably harmed if such covenants are not specifically enforced.\n13. Governing Law and Choice of Venue. This Agreement will be governed by and interpreted in accordance with the laws of the State of\nKansas. The parties hereto agree to submit to the jurisdiction of the courts of Kansas for the purposes of enforcement of this Agreement or any action\nthat may arise relating to the employment relationship or the enforcement of this Agreement by Employee and Company. The parties further agree\nthat any such action must be brought in a court of competent jurisdiction sitting in the State of Kansas.\n14. Severability. Each of the sections contained in this Agreement will be enforceable independently of every other section in this Agreement,\nand the invalidity or unenforceability of any section will not invalidate or render unenforceable any other section contained in this Agreement.\nEmployee acknowledges that the restrictive covenants contained in this Agreement are a condition of this Agreement and are reasonable and valid in\ngeographical and temporal scope and in all other respects. If any court determines that any of the covenants contained herein, or any part of any of\nthem, is invalid or unenforceable, the remainder of such covenants and parts thereof will not thereby be affected and will be given full effect, without\nregard to the invalid portion. If any court determines that any of such covenants, or any part thereof, is invalid or unenforceable because of the\ngeographic or temporal scope of such provision, such court will reduce such scope only to the extent necessary to make such covenants valid and\nenforceable.\n15. Survival of Certain Provisions. Any termination or expiration of this Agreement or suspension of termination of Employee's employment\nby Company notwithstanding, the provisions of this Agreement that are intended to continue and survive will so continue and survive. This\nAgreement and all rights hereunder will inure to the benefit of Company, its successors and assigns.\n16. Accounting for Profits. Employee covenants and agrees that, if he violates any of his covenants or agreements hereunder, Company will\nbe entitled to an accounting and repayment of all profits, compensation, commissions, remunerations or benefits which Employee\ndirectly or indirectly has realized and/or may realize as a result of, growing out of or in connection with any such violation.\n17.\nCumulative Remedies and Fees. All rights and remedies of Company will be cumulative and Company will have the right to obtain\nspecific performance against Employee for the enforcement of this Agreement. In addition to its other remedies, Employee agrees that should\nCompany elect to remedy any actual or threatened breach of this Agreement by filing suit, Company will be entitled to a judgment and award against\nEmployee in an amount equal to Company's reasonable attorney's fees and costs associated with enforcement of any term of this Agreement.\n18. Equitable Relief. Employee acknowledges that, due to the unique nature of the Confidentia Information, Inventions, and Work Product,\nthere may be no adequate remedy at law for any breach of the obligations hereunder, and that any such breach may allow Employee or third parties\nto unfairly compete with Company. For that reason, it is mutually agreed that upon any such breach or any threat thereof in connection with\nEmployees obligations under Paragraph 5, 6, 7, 8, 9 or 10 of this Agreement, Company will be entitled to seek appropriate equitable relief, without\nbond, in addition to whatever remedies it might have at law in connection with any breach or enforcement of Employee's obligations hereunder\nor\nthe unauthorized use or release of any Confidential Information, Inventions, and/or Work Product. Employee will notify Company in writing\nimmediately upon the occurrence of any such unauthorized release or other breach of which Employee becomes aware.\n19. Arbitration of Disputes. In the event any legal or equitable claims or disputes arise out of or relate to Employee's employment with\nCompany, the terms and conditions of employment, or the termination of employment, except as provided for in paragraph 17, the employee and\nCompany agree that any such claim or dispute will be settled by binding arbitration. This agreement to arbitrate applies to the following allegations,\ndisputes, and claims for relief, but is not limited to those listed: wrongful discharge under statutory law and common law; employment\ndiscrimination based on federal, state or local statute, ordinance or governmental regulations, including but not limited to Title VII of the Civil\nRights\nAct\nof\n1964\nand\namendments\nthereto,\n42\nU.S.C.\nS\n1981,\nthe\nAge\nDiscrimination\nin\nEmployment\nAct,\nthe\nAmericans\nwith\nDisabilities\nAct,\nthe\nFair Labor Standards Act, the Equal Pay Act, the Pregnancy Discrimination Act, the Older Workers Benefit Protection Act, the Occupational Health\nand Safety Act and the Kansas Act Against Discrimination and Kansas Age Discrimination in Employment Act; retaliatory discharge or other action;\ncompensation disputes; tortious conduct; contractual violations (although no contractual relationship, other than at-will employment and this\nagreement to arbitrate, is hereby created); ERISA violations; and other statutory and common law claims and disputes, regardless of whether the\nstatute was enacted or whether the common law doctrine was recognized at the time this Agreement was signed. Nothing herein shall be construed to\nlimit the arbitrability of a controversy or dispute which would otherwise be arbitrable under the Federal Arbitration Act. The arbitration proceedings\nshall be conducted in Kansas City, Missouri in accordance with the Rules of the American Arbitration Association (AAA) in effect at the time a\ndemand for arbitration is made. Employee is entitled to representation by an attorney throughout the proceedings at his or her own expense. The\narbitrator(s) shall have full power and authority to issue remedies in accordance with federal and state statutory and common law. The decision and\naward shall be exclusive, final, and binding on both parties, their heirs, executors, administrators, successors and assigns. The costs and expenses of\nthe arbitration shall be borne by Employee and Company as set forth in the AAA\nRules and in accordance with applicable law. Both parties understand that by agreeing to submit any claims or disputes described above to\narbitration, they are waiving their right to have their disputes resolved in court. However, this substitution of arbitration for litigation involves\nno surrender, by either party, of any substantive statutory or common law benefit, protection or defense. This provision is not intended to add\nto,\ncreate or imply any contractual or other right of employment. The parties' employment relationship is at-will, and no other inference shall be drawn\nfrom this provision.\n20. Prior Agreements and Amendments. Employee hereby acknowledges receipt of a signed counterpart of this Agreement and\nacknowledges that it is Employee's entire agreement with Company concerning the subject matter, thereby canceling, terminating and superseding\nany previous oral or written understandings or agreements with Company or any officer or representative of Company. Nothing in this Agreement\nwill be deemed to limit the right of Company to terminate employment of Employee at will, with or without cause. No amendment or modification\nof this Agreement will be valid or binding upon Company unless made in writing and signed by an officer of Company or upon Employee unless\nmade in writing and signed by him.\n21. Waiver. Employee's or Company's failure to insist upon strict compliance with any provision hereof or any other provision of this\nAgreement or the failure to assert any right Employee or Company may have hereunder will not be deemed to be a waiver or subsequent breach of\nsuch provision or right or any other provision or right of this Agreement.\n22. Successors. This Agreement is personal to the Employee and without the prior written consent of the Company shall not be assignable by\nthe Employee. This Agreement shall inure to the benefit of and be enforceable by the Employee's legal representatives. This Agreement shall inure\nto the benefit of and be binding upon the Company and its successors and assigns.\n23. Notices. Any notice required by this Agreement or given in connection with it, will be in writing and will be given to the appropriate party\nby personal delivery, or by certified mail, postage prepaid, or recognized overnight delivery service.\nIf to Company:\nBATS Exchange, Inc.\n8050 Marshall Drive, Ste. 120\nLenexa, KS 66214\nAttention: HR Manager\nIf to Employee:\nJeromee Johnson\n46 Tanbark Rd\nSudbury, MA 01776\n24. EMPLOYEE'S UNDERSTANDING. EMPLOYEE HAS READ AND REVIEWED THIS ENTIRE AGREEMENT AND HAS HAD\nTHE OPPORTUNITY TO REVIEW AND DISCUSS THIS AGREEMENT WITH COUNSEL OF HIS CHOOSING. EMPLOYEE\nUNDERSTANDS THE PROVISIONS HEREOF AND THE SIGNIFICANCE AND IMPORTANCE OF THE PROVISIONS THEREOF. I\nUNDERSTAND THAT THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY\nEITHER PARTY. IALSO UNDERSTAND THAT AS A CONDITION OF EMPLOYMENT AND CONTINUED EMPLOYMENT, I\nAGREE TO SUBMIT ANY COMPLAINTS TO AN ARBITRATOR(S) AND AGREE TO ABIDE BY AND ACCEPT THE FINAL\nDECISION OF THE ARBITRATOR(S) AS THE ULTIMATE RESOLUTION OF MY COMPLAINT(S) FOR ANY AND ALL EVENTS\nTHAT ARISE OUT OF MY EMPLOYMENT OR TERMINATION OF EMPLOYMENT AS PROVIDED FOR IN THIS AGREEMENT.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed effective the date first written above.\nCOMPANY:\nEMPLOYEE:\nBATS Exchange, Inc.\n/s/ Joe Ratterman\n/s/ Jeromee Johnson\nSignature\nName: Jeromee Johnson\nCEO\nTitle	EX-10.9 13 dex109.htm EMPLOYMENT AND CONFIDENTIALITY/NON-COMPETITION AGREEMENT -\nJOHNSON\nExhibit 10.9\nBATS EMPLOYMENT AND\nCONFIDENTIALITY/NON-COMPETITION AGREEMENT\nTHIS AGREEMENT is made, entered into and effective as of March 9th, 2009, by and between BATS Exchange, Inc., a Delaware\ncorporation (hereinafter “Company”) and Jeromee Johnson, an individual (hereinafter “Employee”).\nWHEREAS, Company is engaged in the business of operating a registered national securities exchange, and any other legal business\nactivities; and\nWHEREAS, Company desires to hire Employee or to continue to employ Employee, and Employee desires to be hired by the Company or to\ncontinue to be employed by the Company, upon the terms and conditions set forth herein; and\nWHEREAS, Company desires to protect the interests of Company and Company’s customers and Confidential Information that may have\nbeen or that may be disclosed to Employee.\nNOW, THEREFORE, in consideration of the foregoing, of the mutual promises contained herein, the Employee’s employment and/or\ncontinued employment with the Company, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,\nthe parties agree as follows:\n1. Employment. Company hereby employs Employee and Employee accepts such employment, upon the terms and conditions hereinafter set\nforth. Employee agrees to devote Employee’s full business time to the affairs of Company and not to engage, either as an employee, partner,\nconsultant or otherwise, in any other business activity, without giving prior written notification to the Company. Employee agrees that at all times\nduring the term hereof Employee will faithfully perform the duties assigned by Company to the best of Employee’s ability. Employee acknowledges\nthat from time to time the Company may promulgate workplace policies and rules. Employee agrees to fully comply with all such policies and rules\nand understands that failure to do so may result in disciplinary action up to and including immediate discharge.\n2. Term. The term of this Agreement will commence as of the effective date of this Agreement first written above and shall continue until the\ntermination of Employee’s employment, provided, however, that the provisions of this Agreement which are intended to continue and survive after\nthe termination of this Agreement shall so continue and survive. Employment under this Agreement is “at will” which means that the employment\nrelationship between Employee and Company may be terminated at any time by either party with or without cause, with or without advance\nnotice. Notwithstanding the foregoing, Company requests, but does not require, that Employee provide at least fourteen (14) calendar days advance\nnotice of intent to terminate employment.\n3. Compensation. As compensation for the services to be rendered by Employee pursuant to this Agreement, Company will pay Employee\nsuch compensation as the Company\nshall determine, from time to time, payable on a payment schedule as the Company shall determine, but not less frequently than monthly. Such\ncompensation shall terminate upon termination of Employee’s employment hereunder. Employee also will be entitled to such other Company\nemployee benefits as are generally accorded to Company’s employees in accordance with established Company policies as they are revised from\ntime to time.\n4. Definitions. For purposes of this Agreement, the following definitions will apply:\n(a) “Inventions” means:\n(i) All inventions, designs, diagrams, schematics, algorithms, creative works, codes, improvements, modifications and\nenhancements, whether or not protected or protectable by laws relating to patents or copyrights, which are made or conceived by\nEmployee during Employee’s employment by Company, regardless whether reduced to practice during the term of this employment.\n(b) “Work Product” means all Inventions, documentation, drawings, databases, records, software, creative works, know-how and\ninformation created, in whole or in part, by Employee during Employee’s employment by Company, whether or not protected or protectable by\nlaws relating to patents or copyrights, including, but not limited to, all designs, methodologies, procedures, manuals, program listings, source\ncodes, working papers and other documentation and information related thereto.\n(c) “Confidential Information” means all financial information, customer lists, lists or other documents related to business prospects,\ndocumentation, software, flow charts, programming code, software diagrams, product plans, know-how, data and information relating to the\npast, present or future business or products of Company or any plans therefore, or relating to the past, present or future business or products of\na third party or plans therefore that are disclosed to Company, which Company does not intentionally or routinely disclose to third parties\nwithout restrictions on use or further disclosure. Confidential Information may include, but is not necessarily limited to, information that meets\nthe legal definition of “trade secret.” Employee acknowledges that the Company has taken reasonable and prudent measures to protect its\nConfidential Information including requiring Employee to execute this Agreement.\n5. Ownership and Protection of Inventions and Work Product. Company will be the exclusive owner of all Inventions and Work Product.\n(a) Employee will promptly disclose to Company all Inventions and keep accurate records relating to the conception and reduction to\npractice of all Inventions. Such records will be the exclusive property of Company, and Employee will surrender possession of such records to\nCompany upon the request of the Company or upon termination of Employee’s employment with Company, including all memoranda, notes,\nrecords, drawings, manuals, computer software, source code, and other documents and materials, and all copies thereof, and electronically\nstored versions thereof. Employee will promptly disclose to Company any and all ideas and concepts which\nEmployee may from time to time have or originate that: (i) relate to the business of Company; (ii) result from or are suggested by any work\nwhich Employee has done or may do for or on behalf of Company; or (iii) are developed, tested, improved, investigated or authored in whole\nor in part during time for which Employee was paid by Company or using any resources of Company.\n(b) Employee hereby assigns to Company, without additional consideration to Employee, the entire right, title and interest in and to the\nInventions and Work Product, all registrations or applications for registrations of rights based thereon, and in and to all other proprietary rights\nbased thereon. Employee will execute all such assignments, oaths, declarations and other documents as may be requested by Company to\nreflect the foregoing. Upon the request of the Company, or upon termination of employment, Employee will surrender to Company all\nmemoranda, notes, records, drawings, manuals, computer software, source code, and other documents and materials, and all copies thereof,\nand electronically stored versions thereof, pertaining to the Work Product.\n(c) Employee will cooperate with and provide Company with all information, documentation and assistance that Company may request\nto perfect, enforce or defend the proprietary rights in or based on the Inventions, Work Product or Confidential Information. Company, in its\nsole discretion, will determine the extent of the proprietary rights, if any, to be protected in or based on the Inventions and Work Product. All\nsuch information, documentation and assistance will be provided at no additional expense to Company, except for out-of-pocket expenses that\nEmployee may incur at Company’s request.\n(d) All Inventions and Work Product made or created by Employee will be original works and will not infringe on the rights of any third\nparty.\n(e) Notwithstanding the foregoing, this Agreement will not apply to any Invention for which no equipment, supplies, facility or\nConfidential Information of Company was used and that was developed entirely on Employee’s own time, unless:\n(i) The Invention relates directly to the business or products of Company or to Company’s actual or demonstrably anticipated\nresearch or development; or\n(ii) The Invention results from any work performed by Employee for Company.\n6. Employee Obligations Concerning Confidential Information.\n(a) During the term of Employee’s employment with Company and in perpetuity thereafter, Employee will treat Confidential Information\non a strictly confidential basis and not disclose Confidential Information to others without the prior written permission of Company, or use\nConfidential Information for any purpose, other than for the performance of services for Company.\n(b) Employee acknowledges that Confidential Information as defined herein is the sole and exclusive property of Company. Employee\nwill surrender possession of all Confidential Information to Company upon any suspension or termination of Employee’s employment with\nCompany for any reason. If, after the suspension or termination of Employee’s employment, Employee becomes aware that documents and/or\nelectronically stored data containing Company’s Confidential Information are in his possession or control, Employee will immediately\nsurrender possession of the same to Company.\n7. Proprietary Information of Others. Company understands that Employee may possess proprietary information of third parties and that\nEmployee may have ongoing obligations to third parties with respect thereto. Company expressly requires that Employee will honor such ongoing\nobligations to such third parties and that Employee will not use for the benefit of Company, or disclose to Company, any such proprietary\ninformation.\n8. Company Property. Employee agrees to take all reasonable precautions and actions necessary to safeguard and maintain Company’s\nproperty and equipment in normal operating condition, and Employee agrees to accept financial responsibility for damage or wear to property or\nequipment beyond that associated with normal business use. Employee agrees to notify Company upon any loss or damage to Company’s property\nand equipment. Upon termination, Employee will immediately return and surrender to Company all property and equipment of Company.\n9. Employee’s Obligations in Connection with Company’s Status as a Self-Regulatory Organization. Employee acknowledges that the\nCompany is a self-regulatory organization as that term is defined in the Securities Exchange Act of 1934 and that as a result, the Company and\nEmployee are required to comply with certain statutory obligations applicable to self regulatory organizations. As such, Employee covenants and\nagrees that he:\n(a) Will take no action to interfere with the Company’s ability to carry out its self-regulatory function.\n(b) Will maintain confidential all books and records of the Company pertaining to the self-regulatory function of the Company (including\nbut not limited to disciplinary matters, trading data, trading practices and audit information) that shall come into possession of the Company\nand shall not use such information for any non-regulatory purpose.\n(c) Will comply with the federal securities laws and the rules and regulations thereunder and shall cooperate with the Securities and\nExchange Commission (“SEC”) and the Company pursuant to and to the extent of their respective regulatory authority, including in respect of\nthe SEC’s oversight responsibilities regarding the Company, and the self regulatory functions and responsibilities of the Company.\n(d) Consents to the jurisdiction of the United States federal courts, the SEC, and the Company, for purposes of any suit, action or\nproceeding pursuant to the\nUnited States federal securities laws, and the rules or regulations thereunder, arising out of, or relating to, the activities of the Company, and\nwaives and agrees not to assert by way of motion, as a defense or otherwise in such suit, action, or proceeding, any claims that he is not\npersonally subject to the jurisdiction of the United States federal courts, the SEC, or the Company, that the suit, action or proceeding is an\ninconvenient forum or that the venue of the suit, action or proceeding is improper, or that the subject matter of the suit, action or proceeding\nmay not be enforced in or by such courts or agency.\n10. Competitive Activities.\n(a) During the term of Employee’s employment with the Company and for two (2) years following termination of Employee’s\nemployment for any reason, Employee will not anywhere within the United States or Canada:\n(i) Perform any services anywhere within the United States or Canada, directly or indirectly, for any person or entity whose primary\nbusiness is the operation of a displayed market for the trading of financial instruments.\n(ii) Own, directly or indirectly, an interest in any entity whose primary business is the operation of a displayed market for the\ntrading of financial instruments, except through mutual funds or similar widely diversified investment pools.\n(b) During the period of two (2) years after termination of Employee’s employment with the Company for any reason, Employee will\nnot, directly or indirectly, whether as an employee, representative, officer, director, shareholder, principal or consultant for any entity, compete\nwith the Company by soliciting or accepting the order execution business of any Customer or Prospect of the Company in the United States or\nCanada.\n(i) “Prospect” is defined as any entity or individual to whom the Company has made a sales presentation, either by telephone, in\nwriting or in person and/or submitted a proposal in order to solicit its business during the twelve (12) months preceding termination of\nEmployee’s employment for any reason.\n(ii) “Customer” is defined as any entity or individual: 1) with whom the Company had a contractual relationship at any time during\nthe twelve (12) months preceding termination of employment; or, 2) from whom the Company received payment for services or products\nof any kind during the twelve (12) months preceding termination of employment for any reason.\nDuring the period of two (2) years after termination of Employee’s employment with the Company for any reason, Employee will not, directly or\nindirectly, hire, cause to be hired, or induce any other party to hire other employees of the Company or persons who were employees of the Company\nwhile Employee was an employee of the Company.\n11. Restrictions on Performance of Agreement. Employee warrants and represents that he has the ability to enter into this Agreement and\nperform all obligations hereunder, and that there are no restrictions or obligations to third parties which would in any way detract from or affect\nEmployee’s performance hereunder.\n12. Reasonableness of Restrictions. The parties hereto hereby acknowledge that the foregoing paragraphs are reasonable and necessary for\nthe protection of the Company. Employee acknowledges that the business of the Company is highly competitive and because the Company’s\nbusiness activities are national in scope, the time and geographic restrictions on competition contained in this section of this Agreement are\nnecessary to protect the Company’s business and confidential information. In addition, the Employee further acknowledges that the Company will be\nirreparably harmed if such covenants are not specifically enforced.\n13. Governing Law and Choice of Venue. This Agreement will be governed by and interpreted in accordance with the laws of the State of\nKansas. The parties hereto agree to submit to the jurisdiction of the courts of Kansas for the purposes of enforcement of this Agreement or any action\nthat may arise relating to the employment relationship or the enforcement of this Agreement by Employee and Company. The parties further agree\nthat any such action must be brought in a court of competent jurisdiction sitting in the State of Kansas.\n14. Severability. Each of the sections contained in this Agreement will be enforceable independently of every other section in this Agreement,\nand the invalidity or unenforceability of any section will not invalidate or render unenforceable any other section contained in this Agreement.\nEmployee acknowledges that the restrictive covenants contained in this Agreement are a condition of this Agreement and are reasonable and valid in\ngeographical and temporal scope and in all other respects. If any court determines that any of the covenants contained herein, or any part of any of\nthem, is invalid or unenforceable, the remainder of such covenants and parts thereof will not thereby be affected and will be given full effect, without\nregard to the invalid portion. If any court determines that any of such covenants, or any part thereof, is invalid or unenforceable because of the\ngeographic or temporal scope of such provision, such court will reduce such scope only to the extent necessary to make such covenants valid and\nenforceable.\n15. Survival of Certain Provisions. Any termination or expiration of this Agreement or suspension of termination of Employee’s employment\nby Company notwithstanding, the provisions of this Agreement that are intended to continue and survive will so continue and survive. This\nAgreement and all rights hereunder will inure to the benefit of Company, its successors and assigns.\n16. Accounting for Profits. Employee covenants and agrees that, if he violates any of his covenants or agreements hereunder, Company will\nbe entitled to an accounting and repayment of all profits, compensation, commissions, remunerations or benefits which Employee\ndirectly or indirectly has realized and/or may realize as a result of, growing out of or in connection with any such violation.\n17. Cumulative Remedies and Fees. All rights and remedies of Company will be cumulative and Company will have the right to obtain\nspecific performance against Employee for the enforcement of this Agreement. In addition to its other remedies, Employee agrees that should\nCompany elect to remedy any actual or threatened breach of this Agreement by filing suit, Company will be entitled to a judgment and award against\nEmployee in an amount equal to Company’s reasonable attorney’s fees and costs associated with enforcement of any term of this Agreement.\n18. Equitable Relief. Employee acknowledges that, due to the unique nature of the Confidential Information, Inventions, and Work Product,\nthere may be no adequate remedy at law for any breach of the obligations hereunder, and that any such breach may allow Employee or third parties\nto unfairly compete with Company. For that reason, it is mutually agreed that upon any such breach or any threat thereof in connection with\nEmployees obligations under Paragraph 5, 6, 7, 8, 9 or 10 of this Agreement, Company will be entitled to seek appropriate equitable relief, without\nbond, in addition to whatever remedies it might have at law in connection with any breach or enforcement of Employee’s obligations hereunder or\nthe unauthorized use or release of any Confidential Information, Inventions, and/or Work Product. Employee will notify Company in writing\nimmediately upon the occurrence of any such unauthorized release or other breach of which Employee becomes aware.\n19. Arbitration of Disputes. In the event any legal or equitable claims or disputes arise out of or relate to Employee’s employment with\nCompany, the terms and conditions of employment, or the termination of employment, except as provided for in paragraph 17, the employee and\nCompany agree that any such claim or dispute will be settled by binding arbitration. This agreement to arbitrate applies to the following allegations,\ndisputes, and claims for relief, but is not limited to those listed: wrongful discharge under statutory law and common law; employment\ndiscrimination based on federal, state or local statute, ordinance or governmental regulations, including but not limited to Title VII of the Civil\nRights Act of 1964 and amendments thereto, 42 U.S .C. § 1981, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the\nFair Labor Standards Act, the Equal Pay Act, the Pregnancy Discrimination Act, the Older Workers Benefit Protection Act, the Occupational Health\nand Safety Act and the Kansas Act Against Discrimination and Kansas Age Discrimination in Employment Act; retaliatory discharge or other action;\ncompensation disputes; tortious conduct; contractual violations (although no contractual relationship, other than at-will employment and this\nagreement to arbitrate, is hereby created); ERISA violations; and other statutory and common law claims and disputes, regardless of whether the\nstatute was enacted or whether the common law doctrine was recognized at the time this Agreement was signed. Nothing herein shall be construed to\nlimit the arbitrability of a controversy or dispute which would otherwise be arbitrable under the Federal Arbitration Act. The arbitration proceedings\nshall be conducted in Kansas City, Missouri in accordance with the Rules of the American Arbitration Association (AAA) in effect at the time a\ndemand for arbitration is made. Employee is entitled to representation by an attorney throughout the proceedings at his or her own expense. The\narbitrator(s) shall have full power and authority to issue remedies in accordance with federal and state statutory and common law. The decision and\naward shall be exclusive, final, and binding on both parties, their heirs, executors, administrators, successors and assigns. The costs and expenses of\nthe arbitration shall be borne by Employee and Company as set forth in the AAA\nRules and in accordance with applicable law. Both parties understand that by agreeing to submit any claims or disputes described above to\narbitration, they are waiving their right to have their disputes resolved in court. However, this substitution of arbitration for litigation involves\nno surrender, by either party, of any substantive statutory or common law benefit, protection or defense. This provision is not intended to add to,\ncreate or imply any contractual or other right of employment. The parties’ employment relationship is at-will, and no other inference shall be drawn\nfrom this provision.\n20. Prior Agreements and Amendments. Employee hereby acknowledges receipt of a signed counterpart of this Agreement and\nacknowledges that it is Employee’s entire agreement with Company concerning the subject matter, thereby canceling, terminating and superseding\nany previous oral or written understandings or agreements with Company or any officer or representative of Company. Nothing in this Agreement\nwill be deemed to limit the right of Company to terminate employment of Employee at will, with or without cause. No amendment or modification\nof this Agreement will be valid or binding upon Company unless made in writing and signed by an officer of Company or upon Employee unless\nmade in writing and signed by him.\n21. Waiver. Employee’s or Company’s failure to insist upon strict compliance with any provision hereof or any other provision of this\nAgreement or the failure to assert any right Employee or Company may have hereunder will not be deemed to be a waiver or subsequent breach of\nsuch provision or right or any other provision or right of this Agreement.\n22. Successors. This Agreement is personal to the Employee and without the prior written consent of the Company shall not be assignable by\nthe Employee. This Agreement shall inure to the benefit of and be enforceable by the Employee’s legal representatives. This Agreement shall inure\nto the benefit of and be binding upon the Company and its successors and assigns.\n23. Notices. Any notice required by this Agreement or given in connection with it, will be in writing and will be given to the appropriate party\nby personal delivery, or by certified mail, postage prepaid, or recognized overnight delivery service.\nIf to Company:\nBATS Exchange, Inc.\n8050 Marshall Drive, Ste. 120\nLenexa, KS 66214\nAttention: HR Manager\nIf to Employee:\nJeromee Johnson\n46 Tanbark Rd\nSudbury, MA 01776\n24. EMPLOYEE’S UNDERSTANDING. EMPLOYEE HAS READ AND REVIEWED THIS ENTIRE AGREEMENT AND HAS HAD\nTHE OPPORTUNITY TO REVIEW AND DISCUSS THIS AGREEMENT WITH COUNSEL OF HIS CHOOSING. EMPLOYEE\nUNDERSTANDS THE PROVISIONS HEREOF AND THE SIGNIFICANCE AND IMPORTANCE OF THE PROVISIONS THEREOF. I\nUNDERSTAND THAT THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY\nEITHER PARTY. I ALSO UNDERSTAND THAT AS A CONDITION OF EMPLOYMENT AND CONTINUED EMPLOYMENT, I\nAGREE TO SUBMIT ANY COMPLAINTS TO AN ARBITRATOR(S) AND AGREE TO ABIDE BY AND ACCEPT THE FINAL\nDECISION OF THE ARBITRATOR(S) AS THE ULTIMATE RESOLUTION OF MY COMPLAINT(S) FOR ANY AND ALL EVENTS\nTHAT ARISE OUT OF MY EMPLOYMENT OR TERMINATION OF EMPLOYMENT AS PROVIDED FOR IN THIS AGREEMENT.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed effective the date first written above.\nCOMPANY:\nEMPLOYEE:\nBATS Exchange, Inc.\n/s/ Joe Ratterman\n/s/ Jeromee Johnson\nSignature\nName: Jeromee Johnson\nCEO\nTitle
+88b6197728e20c8e0bc3732615d5f3d8.pdf	effective_date jurisdiction party term	NON-DISCLOSURE AGREEMENT\nDated as of July 25, 2016\nThis Non-Disclosure Agreement (this “Agreement”) is entered into as of the date first set forth above by and between Carolco Pictures, Inc., a\nFlorida corporation (the “Company”), and the person whose name is set forth on the signature page hereof adjacent to “Recipient” (the\n“Recipient”, and together with the Company, the “Parties” and each individually, a “Party”).\nWHEREAS, Recipient is an employee or officer of Company and will obtain certain Confidential Information (as defined below) of Company in\nconnection with such relationship, and the Parties desire to provide for certain matters related to such Confidential Information as set forth\nherein; and\nWHEREAS, the Parties agree that the terms and conditions of this Agreement shall apply to any and all discussions involving or related to the\nprovision of Confidential Information to Recipient.\nNOW THEREFORE, in consideration of the promises and covenants contained herein, and for other good and valuable consideration, the receipt\nand sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:\n1. The purpose of this Agreement is to allow Recipient to obtain from the Company certain technical and business information of the\nCompany under terms that will protect the confidential and proprietary nature of such information, for the purpose of furthering the\nParties’ relationship (the “Purpose”).\n2. As used in this Agreement, “Confidential Information” shall mean any and all information furnished or disclosed, in whatever form\nor medium, by the Company or its Representatives (as defined below) to Recipient or his Representatives, and shall include all\ninformation relating to the Company, including, but not limited to:\na. any data or information that is competitively sensitive material, including but not limited to products, planning\ninformation, marketing strategies and opportunities, price lists, plans, finance, operations, customer relationships or\npotential customer relationships, customer profiles, partner relationships or potential partner relationships, advertising and\npublic relation relationships or potential advertising and public relation relationships, sales estimates, business plan and\ninternal performances results relating to the past, present or future business activities of the Company or its owners, or the\nCompany’s customers, clients, manufacturers, vendors, employees or suppliers;\nb. all concepts, documentation reports, data, specifications, notes, drawings, diagrams, computer software, source code,\nobject code, flow charts, databases, inventions, information, know-how, show-how and trade secrets, whether or not\npatentable or copyrightable regarding the Company’s business;\nc. all customer, client, employee, vendor, or supplier lists; and\nd. such other information as the Company may identify to the Recipient as being confidential or privileged by means of a\nnotation or confidential legend on the applicable document.\n3. Recipient agrees to use Confidential Information only for the Purpose and shall use reasonable care not to disclose Confidential\nInformation to any third party, such care to be at least equal to the care exercised by Recipient as to its own confidential information,\nwhich standard of care shall not be less than the current industry standard in effect as of the date of such receipt. Recipient agrees that it\nshall make disclosure of any such Confidential Information only to employees (including temporary and leased employees subject to a\nconfidentiality obligation), officers, directors, attorneys and wholly owned subsidiaries (collectively, “Representatives”), to whom\ndisclosure is reasonably necessary for the Purpose. Notwithstanding anything to the contrary contained herein, the Parties acknowledge\nand agree that Recipient may, with notice to the Company, disclose any Confidential Information as and to the extent that Recipient’s\ncounsel deems required pursuant to any law or governmental regulation, or pursuant to the order of a court or administrative body of\ncompetent jurisdiction provided, however, that in such case Recipient shall inform the Company prior to such disclosure and shall only\ndisclose so much of the Confidential Information as may be required for compliance with such law or governmental regulation and\nprovided that Recipient shall cooperate with Company to legally contest, request confidential treatment, or otherwise avoid such\ndisclosure, as requested by the Company.\n4. Upon termination of this Agreement for any reason, or upon the termination of Recipient’s relationship with the Company or upon\nrequest by the Company made at any time, all Confidential Information, together with any copies of same as may be authorized herein,\nshall be returned to the Company, or destroyed and certified as such by Recipient.\n5. The obligations imposed in this Agreement shall not apply to any Confidential Information that: (i) was already in the possession of\nRecipient at the time of disclosure without restrictions on its use or is independently developed by Recipient after the effective date of\nthis Agreement, provided that the person or persons developing same have not used any Confidential Information in such development,\nor is rightfully obtained from a source other than from the Company; (ii) is in the public domain at the time of disclosure or\nsubsequently becomes available to the general public through no fault of Recipient; (iii) is obtained by Recipient from a third person\nwho is under no obligation of confidence to the Company; or (iv) is disclosed without restriction by the Company.\n6. Each Party acknowledges that this Agreement and any meetings and communications of the Parties and their affiliates relating to the\nsame subject matter hereof shall not constitute a representation, warranty, assurance, guarantee or inducement with respect to the\naccuracy or completeness of any Confidential Information or the non-infringement of the rights of third persons.\n7. Neither this Agreement nor any rights hereunder shall be assignable or otherwise transferable by either Party in whole or in part\nwithout the prior written consent of the other Party.\n8. Nothing herein shall be construed as granting to Recipient or its affiliates any right or license to use or practice any of the information\ndefined herein as Confidential Information and which is subject to this Agreement as well as any trade secrets, know-how, copyrights,\ninventions, patents or other intellectual property rights now or hereafter owned or controlled by the Company. Except as allowed by\napplicable law, Recipient shall not use any tradename, service mark or trademark of the Company or refer to the Company in any\npromotional or sales activity or materials without first obtaining the prior written consent of the Company.\n9. The Company makes no representations or warranties with respect to any information disclosed by it to Recipient except that the\nCompany hereby represents and warrants to Recipient that the Company has the legal right and power to disclose any information\ndisclosed by it hereunder.\n10. This Agreement shall be governed and construed under the laws of the State of Florida, without regard to its conflict of laws\nprinciples. Recipient hereby acknowledges and agrees that remedies at law will be inadequate to protect the Company from any actual\nor threatened breach of this Agreement and that any such breach would cause irreparable and continuing injury to the Company.\nTherefore, Recipient agrees that the Company shall be entitled to seek equitable relief without any requirement to post a bond,\nincluding, without limitation, injunction and specific performance, without proof of actual damages or exhausting other remedies, in\naddition to all other remedies available to the Parties at law or in equity.\n11. Any notice to be given under this Agreement by either Party to the other Party shall be in writing and sent to an officer at its address\nset forth on the signature pages hereof by certified or registered mail or by overnight air courier, or by email with return receipt\nrequested and received, and shall be deemed received three days after deposit in the mail or with such courier, properly addressed,\npostage prepaid, or upon receipt of a return receipt is sent by email. If either Party changes its address during the term of this\nAgreement, it shall notify the other Party at its address set forth above in the manner provided in the preceding sentence.\n12. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement. No\nprovision of this Agreement shall be deemed waived, amended or modified by either Party, unless such waiver, amendment or\nmodification is made in writing and signed by both Parties. Each Party agrees that no failure or delay by the other in exercising any\nright, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or\nfurther exercise thereof or the exercise of any right, power or privilege hereunder. This Agreement contains all the terms of the Parties’\nagreements with respect to the subject matter hereof and supersedes all previous agreements between the Parties relating to the subject\nmatter hereof.\n13. In the event any provision of this Agreement is deemed invalid or otherwise unenforceable for any reason, such invalid portion shall\nbe deleted and the Agreement shall continue in effect for all other purposes. A faxed or copied version of this document has the same\neffect and meaning as the original.\n14. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall\nconstitute one and the same instrument, binding upon all of the Parties. In pleading or proving any provision of this Agreement, it shall\nnot be necessary to produce more than one set of such counterparts. Delivery of an executed counterpart of a signature page to this\nAgreement by facsimile shall be effective as delivery of a manually executed counterpart of this Agreement.\n15. This Agreement may be terminated at any time by either Party giving thirty (30) days prior written notice to the other Party. Unless\nearlier terminated, this Agreement shall terminate and be of no further force or effect on the cessation of Recipient’s employment by, or\nservice as an officer to, the Company. The obligations of the Parties under paragraphs 2, 3, 4, 5, and 12 of this Agreement shall survive\nsuch termination for a period of three (3) years.\n[Signatures appear on following page]\nIN WITNESS WHEREOF, the Parties, intending to be legally bound hereby, have caused their duly authorized representatives to sign this\nAgreement as of the date indicated above.\nCarolco Pictures, Inc.\nBy:\nDavid Cohen\nCEO\nAddress for Notices:\nDavid Cohen\nChief Executive Officer\nCarolco Pictures, Inc.\n1200 N. Federal Highway, Suite 200\nBoca Raton, FL 33432\nEmail: dc@carolcopictures.com\nRecipient: ____________________________\nBy: __________________________________\nName: __________________________________\nAddress for Notices:\n______________________________\n______________________________\n______________________________\n______________________________\nEmail: ________________________	NON-DISCLOSURE AGREEMENT\nDated as of July 25, 2016\nThis Non-Disclosure Agreement (this “Agreement”) is entered into as of the date first set forth above by and between Carolco Pictures, Inc., a\nFlorida corporation (the “Company”), and the person whose name is set forth on the signature page hereof adjacent to “Recipient” (the\n“Recipient”, and together with the Company, the “Parties” and each individually, a “Party”).\nWHEREAS, Recipient is an employee or officer of Company and will obtain certain Confidential Information (as defined below) of Company in\nconnection with such relationship, and the Parties desire to provide for certain matters related to such Confidential Information as set forth\nherein; and\nWHEREAS, the Parties agree that the terms and conditions of this Agreement shall apply to any and all discussions involving or related to the\nprovision of Confidential Information to Recipient.\nNOW THEREFORE, in consideration of the promises and covenants contained herein, and for other good and valuable consideration, the receipt\nand sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:\n1. The purpose of this Agreement is to allow Recipient to obtain from the Company certain technical and business information of the\nCompany under terms that will protect the confidential and proprietary nature of such information, for the purpose of furthering the\nParties’ relationship (the “Purpose™).\n2. As used in this Agreement, “Confidential Information” shall mean any and all information furnished or disclosed, in whatever form\nor medium, by the Company or its Representatives (as defined below) to Recipient or his Representatives, and shall include all\ninformation relating to the Company, including, but not limited to:\na. any data or information that is competitively sensitive material, including but not limited to products, planning\ninformation, marketing strategies and opportunities, price lists, plans, finance, operations, customer relationships or\npotential customer relationships, customer profiles, partner relationships or potential partner relationships, advertising and\npublic relation relationships or potential advertising and public relation relationships, sales estimates, business plan and\ninternal performances results relating to the past, present or future business activities of the Company or its owners, or the\nCompany’s customers, clients, manufacturers, vendors, employees or suppliers;\nb. all concepts, documentation reports, data, specifications, notes, drawings, diagrams, computer software, source code,\nobject code, flow charts, databases, inventions, information, know-how, show-how and trade secrets, whether or not\npatentable or copyrightable regarding the Company’s business;\nc. all customer, client, employee, vendor, or supplier lists; and\nd. such other information as the Company may identify to the Recipient as being confidential or privileged by means of a\nnotation or confidential legend on the applicable document.\n3. Recipient agrees to use Confidential Information only for the Purpose and shall use reasonable care not to disclose Confidential\nInformation to any third party, such care to be at least equal to the care exercised by Recipient as to its own confidential information,\nwhich standard of care shall not be less than the current industry standard in effect as of the date of such receipt. Recipient agrees that it\nshall make disclosure of any such Confidential Information only to employees (including temporary and leased employees subject to a\nconfidentiality obligation), officers, directors, attorneys and wholly owned subsidiaries (collectively, “Representatives”), to whom\ndisclosure is reasonably necessary for the Purpose. Notwithstanding anything to the contrary contained herein, the Parties acknowledge\nand agree that Recipient may, with notice to the Company, disclose any Confidential Information as and to the extent that Recipient’s\ncounsel deems required pursuant to any law or governmental regulation, or pursuant to the order of a court or administrative body of\ncompetent jurisdiction provided, however, that in such case Recipient shall inform the Company prior to such disclosure and shall only\ndisclose so much of the Confidential Information as may be required for compliance with such law or governmental regulation and\nprovided that Recipient shall cooperate with Company to legally contest, request confidential treatment, or otherwise avoid such\ndisclosure, as requested by the Company.\n4. Upon termination of this Agreement for any reason, or upon the termination of Recipient’s relationship with the Company or upon\nrequest by the Company made at any time, all Confidential Information, together with any copies of same as may be authorized herein,\nshall be returned to the Company, or destroyed and certified as such by Recipient.\n5. The obligations imposed in this Agreement shall not apply to any Confidential Information that: (i) was already in the possession of\nRecipient at the time of disclosure without restrictions on its use or is independently developed by Recipient after the effective date of\nthis Agreement, provided that the person or persons developing same have not used any Confidential Information in such development,\nor is rightfully obtained from a source other than from the Company; (ii) is in the public domain at the time of disclosure or\nsubsequently becomes available to the general public through no fault of Recipient; (iii) is obtained by Recipient from a third person\nwho is under no obligation of confidence to the Company; or (iv) is disclosed without restriction by the Company.\n6. Each Party acknowledges that this Agreement and any meetings and communications of the Parties and their affiliates relating to the\nsame subject matter hereof shall not constitute a representation, warranty, assurance, guarantee or inducement with respect to the\naccuracy or completeness of any Confidential Information or the non-infringement of the rights of third persons.\n7. Neither this Agreement nor any rights hereunder shall be assignable or otherwise transferable by either Party in whole or in part\nwithout the prior written consent of the other Party.\n8. Nothing herein shall be construed as granting to Recipient or its affiliates any right or license to use or practice any of the information\ndefined herein as Confidential Information and which is subject to this Agreement as well as any trade secrets, know-how, copyrights,\ninventions, patents or other intellectual property rights now or hereafter owned or controlled by the Company. Except as allowed by\napplicable law, Recipient shall not use any tradename, service mark or trademark of the Company or refer to the Company in any\npromotional or sales activity or materials without first obtaining the prior written consent of the Company.\n9. The Company makes no representations or warranties with respect to any information disclosed by it to Recipient except that the\nCompany hereby represents and warrants to Recipient that the Company has the legal right and power to disclose any information\ndisclosed by it hereunder.\n10. This Agreement shall be governed and construed under the laws of the State of Florida, without regard to its conflict of laws\nprinciples. Recipient hereby acknowledges and agrees that remedies at law will be inadequate to protect the Company from any actual\nor threatened breach of this Agreement and that any such breach would cause irreparable and continuing injury to the Company.\nTherefore, Recipient agrees that the Company shall be entitled to seek equitable relief without any requirement to post a bond,\nincluding, without limitation, injunction and specific performance, without proof of actual damages or exhausting other remedies, in\naddition to all other remedies available to the Parties at law or in equity.\n11. Any notice to be given under this Agreement by either Party to the other Party shall be in writing and sent to an officer at its address\nset forth on the signature pages hereof by certified or registered mail or by overnight air courier, or by email with return receipt\nrequested and received, and shall be deemed received three days after deposit in the mail or with such courier, properly addressed,\npostage prepaid, or upon receipt of a return receipt is sent by email. If either Party changes its address during the term of this\nAgreement, it shall notify the other Party at its address set forth above in the manner provided in the preceding sentence.\n12. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement. No\nprovision of this Agreement shall be deemed waived, amended or modified by either Party, unless such waiver, amendment or\nmodification is made in writing and signed by both Parties. Each Party agrees that no failure or delay by the other in exercising any\nright, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or\nfurther exercise thereof or the exercise of any right, power or privilege hereunder. This Agreement contains all the terms of the Parties’\nagreements with respect to the subject matter hereof and supersedes all previous agreements between the Parties relating to the subject\nmatter hereof.\n13. In the event any provision of this Agreement is deemed invalid or otherwise unenforceable for any reason, such invalid portion shall\nbe deleted and the Agreement shall continue in effect for all other purposes. A faxed or copied version of this document has the same\neffect and meaning as the original.\n14. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall\nconstitute one and the same instrument, binding upon all of the Parties. In pleading or proving any provision of this Agreement, it shall\nnot be necessary to produce more than one set of such counterparts. Delivery of an executed counterpart of a signature page to this\nAgreement by facsimile shall be effective as delivery of a manually executed counterpart of this Agreement.\n15. This Agreement may be terminated at any time by either Party giving thirty (30) days prior written notice to the other Party. Unless\nearlier terminated, this Agreement shall terminate and be of no further force or effect on the cessation of Recipient’s employment by, or\nservice as an officer to, the Company. The obligations of the Parties under paragraphs 2, 3, 4, 5, and 12 of this Agreement shall survive\nsuch termination for a period of three (3) years.\n[Signatures appear on following page]\nIN WITNESS WHEREQF, the Parties, intending to be legally bound hereby, have caused their duly authorized representatives to sign this\nAgreement as of the date indicated above.\nCarolco Pictures, Inc.\nBy:\nDavid Cohen\nCEO\nAddress for Notices:\nDavid Cohen\nChief Executive Officer\nCarolco Pictures, Inc.\n1200 N. Federal Highway, Suite 200\nBoca Raton, FL 33432\nEmail: dc@carolcopictures.com\n \nRecipient:\n \nBy:\nName:\n \nAddress for Notices:\n \n \n \n \nEmail:\n	NON-DISCLOSURE AGREEMENT\nDated as of July 25, 2016\nThis Non-Disclosure Agreement (this "Agreement") is entered into as of the date first set forth above by and between Carolco Pictures, Inc., a\nFlorida corporation (the "Company"), and the person whose name is set forth on the signature page hereof adjacent to "Recipient" (the\n"Recipient", and together with the Company, the "Parties" and each individually, a "Party").\nWHEREAS, Recipient is an employee or officer of Company and will obtain certain Confidential Information (as defined below) of Company in\nconnection with such relationship, and the Parties desire to provide for certain matters related to such Confidential Information as set forth\nherein; and\nWHEREAS, the Parties agree that the terms and conditions of this Agreement shall apply to any and all discussions involving or related to the\nprovision of Confidential Information to Recipient.\nNOW THEREFORE, in consideration of the promises and covenants contained herein, and for other good and valuable consideration, the receipt\nand sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:\n1. The purpose of this Agreement is to allow Recipient to obtain from the Company certain technical and business information of the\nCompany under terms that will protect the confidential and proprietary nature of such information, for the purpose of furthering the\nParties' relationship (the "Purpose").\n2. As used in this Agreement, "Confidential Information" shall mean any and all information furnished or disclosed, in whatever form\nor medium, by the Company or its Representatives (as defined below) to Recipient or his Representatives, and shall include all\ninformation relating to the Company, including, but not limited to:\na.\nany data or information that is competitively sensitive material, including but not limited to products, planning\ninformation, marketing strategies and opportunities, price lists, plans, finance, operations, customer relationships or\npotential customer relationships, customer profiles, partner relationships or potential partner relationships, advertising and\npublic relation relationships or potential advertising and public relation relationships, sales estimates, business plan and\ninternal performances results relating to the past, present or future business activities of the Company or its owners, or the\nCompany's customers, clients, manufacturers, vendors, employees or suppliers;\nb. all concepts, documentation reports, data, specifications, notes, drawings, diagrams, computer software, source code,\nobject code, flow charts, databases, inventions, information, know-how, show-how and trade secrets, whether or not\npatentable or copyrightable regarding the Company's business;\nC. all customer, client, employee, vendor, or supplier lists; and\nd.\nsuch other information as the Company may identify to the Recipient as being confidential or privileged by means of a\nnotation or confidential legend on the applicable document.\n3. Recipient agrees to use Confidential Information only for the Purpose and shall use reasonable care not to disclose Confidential\nInformation to any third party, such care to be at least equal to the care exercised by Recipient as to its own confidential information,\nwhich standard of care shall not be less than the current industry standard in effect as of the date of such receipt. Recipient agrees that it\nshall make disclosure of any such Confidential Information only to employees (including temporary and leased employees subject to a\nconfidentiality obligation), officers, directors, attorneys and wholly owned subsidiaries (collectively, "Representatives"), to whom\ndisclosure is reasonably necessary for the Purpose. Notwithstanding anything to the contrary contained herein, the Parties acknowledge\nand agree that Recipient may, with notice to the Company, disclose any Confidential Information as and to the extent that Recipient's\ncounsel deems required pursuant to any law or governmental regulation, or pursuant to the order of a court or administrative body of\ncompetent jurisdiction provided, however, that in such case Recipient shall inform the Company prior to such disclosure and shall only\ndisclose so much of the Confidential Information as may be required for compliance with such law or governmental regulation and\nprovided that Recipient shall cooperate with Company to legally contest, request confidential treatment, or otherwise avoid such\ndisclosure, as requested by the Company.\n4.\nUpon termination of this Agreement for any reason, or upon the termination of Recipient's relationship with the Company or upon\nrequest by the Company made at any time, all Confidential Information, together with any copies of same as may be authorized herein,\nshall be returned to the Company, or destroyed and certified as such by Recipient.\n5. The obligations imposed in this Agreement shall not apply to any Confidential Information that: (i) was already in the possession of\nRecipient at the time of disclosure without restrictions on its use or is independently developed by Recipient after the effective date of\nthis Agreement, provided that the person or persons developing same have not used any Confidential Information in such development,\nor is rightfully obtained from a source other than from the Company; (ii) is in the public domain at the time of disclosure or\nsubsequently becomes available to the genera public through no fault of Recipient; (iii) is obtained by Recipient from a third person\nwho is under no obligation of confidence to the Company; or (iv) is disclosed without restriction by the Company.\n6. Each Party acknowledges that this Agreement and any meetings and communications of the Parties and their affiliates relating to the\nsame subject matter hereof shall not constitute a representation, warranty, assurance, guarantee or inducement with respect to the\naccuracy or completeness of any Confidential Information or the non-infringement of the rights of third persons.\n7. Neither this Agreement nor any rights hereunder shall be assignable or otherwise transferable by either Party in whole or in part\nwithout the prior written consent of the other Party.\n8.\nNothing herein shall be construed as granting to Recipient or its affiliates any right or license to use or practice any of the information\ndefined herein as Confidential Information and which is subject to this Agreement as well as any trade secrets, know-how, copyrights,\ninventions,\npatents\nor\nother\nintellectual\nproperty\nrights\nnow\nor\nhereafter\nowned\nor\ncontrolled\nby\nthe\nCompany.\nExcept\nas\nallowed\nby\napplicable law, Recipient shall not use any tradename, service mark or trademark of the Company or refer to the Company in any\npromotional or sales activity or materials without first obtaining the prior written consent of the Company.\n9. The Company makes no representations or warranties with respect to any information disclosed by it to Recipient except that the\nCompany hereby represents and warrants to Recipient that the Company has the legal right and power to disclose any information\ndisclosed by it hereunder.\n10. This Agreement shall be governed and construed under the laws of the State of Florida, without regard to its conflict of laws\nprinciples.\nRecipient\nhereby\nacknowledges\nand\nagrees\nthat\nremedies\nat\nlaw\nwill\nbe\ninadequate\nto\nprotect\nthe\nCompany\nfrom\nany\nactual\nor threatened breach of this Agreement and that any such breach would cause irreparable and continuing injury to the Company.\nTherefore, Recipient agrees that the Company shall be entitled to seek equitable relief without any requirement to post a bond,\nincluding, without limitation, injunction and specific performance, without proof of actual damages or exhausting other remedies, in\naddition to all other remedies available to the Parties at law or in equity.\n11. Any notice to be given under this Agreement by either Party to the other Party shall be in writing and sent to an officer at its address\nset\nforth on the signature pages hereof by certified or registered mail or by overnight air courier, or by email with return receipt\nrequested and received, and shall be deemed received three days after deposit in the mail or with such courier, properly addressed,\npostage prepaid, or upon receipt of a return receipt is sent by email. If either Party changes its address during the term of this\nAgreement, it shall notify the other Party at its address set forth above in the manner provided in the preceding sentence.\n12. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement. No\nprovision of this Agreement shall be deemed waived, amended or modified by either Party, unless such waiver, amendment or\nmodification is made in writing and signed by both Parties. Each Party agrees that no failure or delay by the other in exercising any\nright, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or\nfurther exercise thereof or the exercise of any right, power or privilege hereunder. This Agreement contains all the terms of the Parties'\nagreements with respect to the subject matter hereof and supersedes all previous agreements between the Parties relating to the subject\nmatter hereof.\n13.\nIn the event any provision of this Agreement is deemed invalid or otherwise unenforceable for any reason, such invalid portion shall\nbe deleted and the Agreement shall continue in effect for all other purposes. A faxed or copied version of this document has the same\neffect and meaning as the original.\n14.\nThis Agreement may be executed in several counterparts each of which shall be deemed an original, but all of which together shall\nconstitute one and the same instrument, binding upon all of the Parties. In pleading or proving any provision of this Agreement, it shall\nnot be necessary to produce more than one set of such counterparts. Delivery of an executed counterpart of a signature page to\nthis\nAgreement by facsimile shall be effective as delivery of a manually executed counterpart of this Agreement.\n15. This Agreement may be terminated at any time by either Party giving thirty (30) days prior written notice to the other Party. Unless\nearlier terminated, this Agreement shall terminate and be of no further force or effect on the cessation of Recipient's employment by, or\nservice as an officer to, the Company. The obligations of the Parties under paragraphs 2, 3, 4, 5, and 12 of this Agreement shall survive\nsuch termination for a period of three (3) years.\n[Signatures appear on following page]\nIN WITNESS WHEREOF, the Parties, intending to be legally bound hereby, have caused their duly authorized representatives to sign this\nAgreement as of the date indicated above.\nCarolco Pictures, Inc.\nBy:\nDavid Cohen\nCEO\nAddress for Notices:\nDavid Cohen\nChief Executive Officer\nCarolco Pictures, Inc.\n1200 N. Federal Highway, Suite 200\nBoca Raton, FL 33432\nEmail: dc@carolcopictures.com\nRecipient:\nBy:\nName:\nAddress for Notices:\nEmail:	NON-DISCLOSURE AGREEMENT\nDated as of July 25, 2016\nThis Non-Disclosure Agreement (this “Agreement”) is entered into as of the date first set forth above by and between Carolco Pictures, Inc., a\nFlorida corporation (the “Company”), and the person whose name is set forth on the signature page hereof adjacent to “Recipient” (the\n“Recipient”, and together with the Company, the “Parties” and each individually, a “Party”).\nWHEREAS, Recipient is an employee or officer of Company and will obtain certain Confidential Information (as defined below) of Company in\nconnection with such relationship, and the Parties desire to provide for certain matters related to such Confidential Information as set forth\nherein; and\nWHEREAS, the Parties agree that the terms and conditions of this Agreement shall apply to any and all discussions involving or related to the\nprovision of Confidential Information to Recipient.\nNOW THEREFORE, in consideration of the promises and covenants contained herein, and for other good and valuable consideration, the receipt\nand sufficiency of which is hereby acknowledged, the Parties hereto hereby agree as follows:\n1. The purpose of this Agreement is to allow Recipient to obtain from the Company certain technical and business information of the\nCompany under terms that will protect the confidential and proprietary nature of such information, for the purpose of furthering the\nParties’ relationship (the “Purpose”).\n2. As used in this Agreement, “Confidential Information” shall mean any and all information furnished or disclosed, in whatever form\nor medium, by the Company or its Representatives (as defined below) to Recipient or his Representatives, and shall include all\ninformation relating to the Company, including, but not limited to:\na. any data or information that is competitively sensitive material, including but not limited to products, planning\ninformation, marketing strategies and opportunities, price lists, plans, finance, operations, customer relationships or\npotential customer relationships, customer profiles, partner relationships or potential partner relationships, advertising and\npublic relation relationships or potential advertising and public relation relationships, sales estimates, business plan and\ninternal performances results relating to the past, present or future business activities of the Company or its owners, or the\nCompany’s customers, clients, manufacturers, vendors, employees or suppliers;\nb. all concepts, documentation reports, data, specifications, notes, drawings, diagrams, computer software, source code,\nobject code, flow charts, databases, inventions, information, know-how, show-how and trade secrets, whether or not\npatentable or copyrightable regarding the Company’s business;\nc. all customer, client, employee, vendor, or supplier lists; and\nd. such other information as the Company may identify to the Recipient as being confidential or privileged by means of a\nnotation or confidential legend on the applicable document.\n3. Recipient agrees to use Confidential Information only for the Purpose and shall use reasonable care not to disclose Confidential\nInformation to any third party, such care to be at least equal to the care exercised by Recipient as to its own confidential information,\nwhich standard of care shall not be less than the current industry standard in effect as of the date of such receipt. Recipient agrees that it\nshall make disclosure of any such Confidential Information only to employees (including temporary and leased employees subject to a\nconfidentiality obligation), officers, directors, attorneys and wholly owned subsidiaries (collectively, “Representatives”), to whom\ndisclosure is reasonably necessary for the Purpose. Notwithstanding anything to the contrary contained herein, the Parties acknowledge\nand agree that Recipient may, with notice to the Company, disclose any Confidential Information as and to the extent that Recipient’s\ncounsel deems required pursuant to any law or governmental regulation, or pursuant to the order of a court or administrative body of\ncompetent jurisdiction provided, however, that in such case Recipient shall inform the Company prior to such disclosure and shall only\ndisclose so much of the Confidential Information as may be required for compliance with such law or governmental regulation and\nprovided that Recipient shall cooperate with Company to legally contest, request confidential treatment, or otherwise avoid such\ndisclosure, as requested by the Company.\n4. Upon termination of this Agreement for any reason, or upon the termination of Recipient’s relationship with the Company or upon\nrequest by the Company made at any time, all Confidential Information, together with any copies of same as may be authorized herein,\nshall be returned to the Company, or destroyed and certified as such by Recipient.\n5. The obligations imposed in this Agreement shall not apply to any Confidential Information that: (i) was already in the possession of\nRecipient at the time of disclosure without restrictions on its use or is independently developed by Recipient after the effective date of\nthis Agreement, provided that the person or persons developing same have not used any Confidential Information in such development,\nor is rightfully obtained from a source other than from the Company; (ii) is in the public domain at the time of disclosure or\nsubsequently becomes available to the general public through no fault of Recipient; (iii) is obtained by Recipient from a third person\nwho is under no obligation of confidence to the Company; or (iv) is disclosed without restriction by the Company.\n6. Each Party acknowledges that this Agreement and any meetings and communications of the Parties and their affiliates relating to the\nsame subject matter hereof shall not constitute a representation, warranty, assurance, guarantee or inducement with respect to the\naccuracy or completeness of any Confidential Information or the non-infringement of the rights of third persons.\n7. Neither this Agreement nor any rights hereunder shall be assignable or otherwise transferable by either Party in whole or in part\nwithout the prior written consent of the other Party.\n8. Nothing herein shall be construed as granting to Recipient or its affiliates any right or license to use or practice any of the information\ndefined herein as Confidential Information and which is subject to this Agreement as well as any trade secrets, know-how, copyrights,\ninventions, patents or other intellectual property rights now or hereafter owned or controlled by the Company. Except as allowed by\napplicable law, Recipient shall not use any tradename, service mark or trademark of the Company or refer to the Company in any\npromotional or sales activity or materials without first obtaining the prior written consent of the Company.\n9. The Company makes no representations or warranties with respect to any information disclosed by it to Recipient except that the\nCompany hereby represents and warrants to Recipient that the Company has the legal right and power to disclose any information\ndisclosed by it hereunder.\n10. This Agreement shall be governed and construed under the laws of the State of Florida, without regard to its conflict of laws\nprinciples. Recipient hereby acknowledges and agrees that remedies at law will be inadequate to protect the Company from any actual\nor threatened breach of this Agreement and that any such breach would cause irreparable and continuing injury to the Company.\nTherefore, Recipient agrees that the Company shall be entitled to seek equitable relief without any requirement to post a bond,\nincluding, without limitation, injunction and specific performance, without proof of actual damages or exhausting other remedies, in\naddition to all other remedies available to the Parties at law or in equity.\n11. Any notice to be given under this Agreement by either Party to the other Party shall be in writing and sent to an officer at its address\nset forth on the signature pages hereof by certified or registered mail or by overnight air courier, or by email with return receipt\nrequested and received, and shall be deemed received three days after deposit in the mail or with such courier, properly addressed,\npostage prepaid, or upon receipt of a return receipt is sent by email. If either Party changes its address during the term of this\nAgreement, it shall notify the other Party at its address set forth above in the manner provided in the preceding sentence.\n12. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement. No\nprovision of this Agreement shall be deemed waived, amended or modified by either Party, unless such waiver, amendment or\nmodification is made in writing and signed by both Parties. Each Party agrees that no failure or delay by the other in exercising any\nright, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or\nfurther exercise thereof or the exercise of any right, power or privilege hereunder. This Agreement contains all the terms of the Parties’\nagreements with respect to the subject matter hereof and supersedes all previous agreements between the Parties relating to the subject\nmatter hereof.\n13. In the event any provision of this Agreement is deemed invalid or otherwise unenforceable for any reason, such invalid portion shall\nbe deleted and the Agreement shall continue in effect for all other purposes. A faxed or copied version of this document has the same\neffect and meaning as the original.\n14. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall\nconstitute one and the same instrument, binding upon all of the Parties. In pleading or proving any provision of this Agreement, it shall\nnot be necessary to produce more than one set of such counterparts. Delivery of an executed counterpart of a signature page to this\nAgreement by facsimile shall be effective as delivery of a manually executed counterpart of this Agreement.\n15. This Agreement may be terminated at any time by either Party giving thirty (30) days prior written notice to the other Party. Unless\nearlier terminated, this Agreement shall terminate and be of no further force or effect on the cessation of Recipient’s employment by, or\nservice as an officer to, the Company. The obligations of the Parties under paragraphs 2, 3, 4, 5, and 12 of this Agreement shall survive\nsuch termination for a period of three (3) years.\n[Signatures appear on following page]\nIN WITNESS WHEREOF, the Parties, intending to be legally bound hereby, have caused their duly authorized representatives to sign this\nAgreement as of the date indicated above.\nCarolco Pictures, Inc.\nBy:\nDavid Cohen\nCEO\nAddress for Notices:\nDavid Cohen\nChief Executive Officer\nCarolco Pictures, Inc.\n1200 N. Federal Highway, Suite 200\nBoca Raton, FL 33432\nEmail: dc@carolcopictures.com\nRecipient: ____________________________\nBy: __________________________________\nName: __________________________________\nAddress for Notices:\n______________________________\n______________________________\n______________________________\n______________________________\nEmail: ________________________
+8a7413227aa04736709b291f6428bbf2.pdf	effective_date jurisdiction party term	Exhibit A\nNon-Disclosure Agreement\nAugust 26, 2015\nReference is made to the Standstill Agreement, dated August 26, 2015 (the “Standstill Agreement”), by and among Riverview Bancorp,\nInc. (the “Company”), the Ancora Parties and James M. Chadwick, as representative of the Ancora Parties (the “Director”). Capitalized terms used\nbut not defined herein shall have the meanings ascribed to them in the Standstill Agreement, and the rules of interpretation set forth in Section 8 of\nthe Standstill Agreement shall apply to this Non-Disclosure Agreement mutatis mutandis.\nThe Director may be provided certain information and data in connection with his serving as a director of the Company or Riverview\nCommunity Bank that the Company or Riverview Community Bank wishes to keep confidential, including information (whether furnished in\nwriting or electronic format or orally) regarding the Company’s and Riverview Community Bank’s governance, board of directors, management,\nplans, strategies, business, finances or operations and information that the Company or Riverview Community Bank has obtained from third parties\nand with respect to which the Company or Riverview Community Bank is obligated to maintain confidentiality (collectively, “Confidential\nInformation”). Except as provided in this Non-Disclosure Agreement, the Director will not disclose any Confidential Information in any manner\nwhatsoever or use any Confidential Information other than in connection with serving as a director of the Company or Riverview Community Bank\nwithout, in each instance, securing the prior written consent of the Company (acting through a resolution of a majority of the Company’s directors).\nExcept as set forth in this paragraph, this Non-Disclosure Agreement shall not prevent the Director from privately disclosing\nConfidential Information to (i) officers, directors, accountants and counsel for the Company or Riverview Community Bank, (ii) the Director ’s legal\ncounsel or legal counsel to the Ancora Parties (each a “Director Representative” and collectively, the “Director Representatives”) who needs to\nknow such information for the sole purpose of advising the Director on his actions as a director of the Company or Riverview Community Bank or\nadvising Ancora Advisors, LLC (“Ancora Advisors”) and the Ancora Parties (or the Ancora Affiliates) on its (or their) investment(s) in the\nCompany or (iii) Frederick DiSanto, Brian Hopkins and Patrick Sweeney, each an associate of Ancora Advisors (each an “Ancora Principal” and,\ncollectively, the “Ancora Principals”). Notwithstanding the foregoing, it is understood and agreed that the Director will not disclose any information\nthat the Director learns or obtains in his capacity as a director of the Company or Riverview Community Bank to any Director Representative or any\nAncora Principal to the extent such disclosure would be reasonably likely to constitute a waiver of the attorney-client privilege between the\nCompany or Riverview Community Bank and its counsel or the Company’s or Riverview Community Bank’s attorney work product privilege. The\nDirector also acknowledges and agrees that he will not disclose, and is prohibited by law and regulation from disclosing, to any Director\nRepresentative or any Ancora Principal any reports of examination or other confidential supervisory information of any bank regulatory authority,\nincluding the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of San Francisco, the Federal Deposit Insurance\nCorporation\nExhibit A-1\nand the Office of the Comptroller of the Currency. Any Director Representative shall only be provided Confidential Information to the extent that\nsuch Director Representative is informed of the confidential nature of the Confidential Information and agrees or is otherwise obligated to keep such\ninformation confidential and to restrict the use of such confidential information in accordance with the terms of this Non-Disclosure Agreement.\nThe Ancora Principals agree to keep confidential the Confidential Information and to restrict the use of such Confidential Information in accordance\nwith the terms of this Non-Disclosure Agreement, to be bound by this Non-Disclosure Agreement on the same terms as the Director by\ncountersigning this Non-Disclosure Agreement and not to use any Confidential Information in a manner that may be detrimental to the Company or\nits subsidiaries, including Riverview Community Bank. The Director, Ancora Advisors and the Ancora Parties shall be responsible for any breach of\nthis Agreement by the Director, any Director Representatives, Ancora Advisors, the Ancora Parties or Ancora Principals.\nThe term “Confidential Information” shall not include information that (a) is at the time of disclosure or thereafter becomes generally\navailable to the public other than as a result of a disclosure by the Director, Ancora Advisors, the Ancora Parties, a Director Representative or an\nAncora Principal in violation of the terms of this Non-Disclosure Agreement; (b) was, prior to disclosure by the Company or Riverview Community\nBank, already in the possession of the Director, a Director Representative or an Ancora Principal; provided that the source of such information was,\nto such person’s knowledge after reasonable inquiry, not bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Company or Riverview Community Bank; (c) becomes available to the Director, a Director Representative or an\nAncora Principal on a non-confidential basis from a source other than the Company, an affiliate of the Company (including Riverview Community\nBank) or an agent, representative, attorney, advisor, director, officer or employee of the Company or Riverview Community Bank (collectively, the\n“Company Representatives”) that is, to such person’s knowledge after reasonable inquiry, not bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Company or Riverview Community Bank, and is not, to such person’s knowledge\nafter reasonable inquiry, under an obligation to the Company or Riverview Community Bank not to transmit the information to such person; or\n(d) was independently developed by the Director, a Director Representative or an Ancora Principal without reference to or use of the Confidential\nInformation.\nThe Director is aware, and will advise any Director Representative or an Ancora Principal who is informed of the matters that are the\nsubject of this Non-Disclosure Agreement, that the Confidential Information may constitute material, non-public information and of the restrictions\nimposed by the United States securities laws on the purchase or sale of securities by any person who is aware of material, non-public information\nand on the communication of such information to any other person who may purchase or sell such securities on the basis of such information. The\nDirector, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal to whom the Director transmits Confidential\nInformation under this Non-Disclosure Agreement will comply with all applicable federal and state securities laws in connection with the purchase\nor sale, directly or indirectly, of securities of the Company or any other entity of which the Director is provided material non-public information in\nhis capacity as a director of the Company or Riverview Community Bank for as long as the Director, Ancora\nExhibit A-2\nAdvisors, the Ancora Parties any Director Representative or any Ancora Principal are in possession of material non-public information about the\nCompany or such other entity. The Director and the Company acknowledge that none of the provisions hereto shall in any way limit Ancora\nAdvisors’, the Ancora Parties’ or the Ancora Principals’ activities in the ordinary course of business if such activities will not violate applicable\nsecurities laws or the obligations set forth in this Non-Disclosure Agreement.\nEach of the Director, any Ancora Principal and any Director Representative to whom the Director transmits Confidential Information\nunder this Non-Disclosure Agreement acknowledges, or shall be deemed to acknowledge, that none of the Company, any affiliate of the Company\nor any Company Representative makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation. None of the Company, any affiliate of the Company or any Company Representative shall have any liability to the Director, Ancora\nAdvisors, the Ancora Parties, any Director Representative or any Ancora Principal hereunder relating to or resulting from the use of the\nConfidential Information by the Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal or any errors in\nor omissions from the Confidential Information.\nIn the event that the Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal is requested in\nany proceeding or governmental inquiry to disclose any Confidential Information, the Director will give the Company prompt written notice, to the\nextent not legally prohibited, of such request so that the Company or Riverview Community Bank may seek an appropriate protective order or\nwaive compliance with the applicable provisions of this Non-Disclosure Agreement. If the Company or Riverview Community Bank seeks a\nprotective order, the Director, Ancora Advisors, the Ancora Parties, and the Ancora Principals agree to, and shall cause any Director Representative\nto, provide such cooperation as the Company or Riverview Community Bank shall reasonably request and in no event will they oppose action by the\nCompany or Riverview Community Bank to obtain a protective order or other relief to prevent the disclosure of Confidential Information or to\nobtain reliable assurance that confidential treatment will be afforded to the Confidential Information. If in the absence of a protective order, the\nDirector, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal, based upon the advice of counsel, is legally\nrequired to disclose Confidential Information, such person or entity may disclose without liability under this Non-Disclosure Agreement such\nportion of the Confidential Information that counsel advises that the Director, Ancora Advisors, the Ancora Parties, any Director Representative or\nany Ancora Principal is legally required to disclose, so long as the recipient of such Confidential Information is informed of this Non-Disclosure\nAgreement and the confidential nature of such Confidential Information. For the avoidance of doubt, there shall be no legal requirement applicable\nto the Director, Ancora Advisors, the Ancora Parties, or the Ancora Principals to disclose any Confidential Information solely by virtue of the fact\nthat, absent such disclosure, such parties would be prohibited from purchasing, selling, or engaging in derivative or other transactions with respect\nto securities of the Company.\nThe parties agree that irreparable damage would occur in the event any of the provisions of this Non-Disclosure Agreement were not\nperformed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly, the\nparties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Non-\nExhibit A-3\nDisclosure Agreement and to enforce specifically the terms and provisions of this Non-Disclosure Agreement exclusively in the State of\nWashington with a court of competent jurisdiction located in Clark County, Washington (the “Washington Courts”), in addition to any other\nremedies at law or in equity, and each party agrees it will not take any action, directly or indirectly, in opposition to the party seeking relief on the\ngrounds that any other remedy or relief is available at law or in equity. Each of the parties hereto agrees to waive any bonding requirement under\nany applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. In the event of litigation relating to this Non-\nDisclosure Agreement, if a court of competent jurisdiction determines that this Non-Disclosure Agreement has been breached by the Director,\nAncora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal, Ancora Advisors and the Ancora Parties will reimburse\nthe Company for its reasonable and documented out-of-pocket costs and expenses (including legal fees and expenses) incurred in connection with\nall such litigation (including any appeal relating thereto). Furthermore, each of the parties hereto irrevocably (a) consents to submit itself to the\npersonal jurisdiction of the Washington Courts in the event any dispute arises out of this Non-Disclosure Agreement, (b) agrees that it shall not\nattempt to deny or defeat such personal jurisdiction by motion or other request for leave from the Washington Courts, (c) agrees that it shall not\nbring any action relating to this Non-Disclosure Agreement in any court other than the Washington Courts, (d) waives the right to trial by jury, and\n(d) consents to service of process by the United States Postal Service or reputable overnight mail delivery service, in each case, signature requested,\nto the address set forth in Section 14 of the Standstill Agreement or as otherwise provided by applicable law. THIS NON-DISCLOSURE\nAGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITH RESPECT TO VALIDITY, INTERPRETATION, EFFECT\nAND ENFORCEMENT, BY THE LAWS OF THE STATE OF WASHINGTON WITHOUT GIVING EFFECT TO THE CHOICE OF LAW\nPRINCIPLES THEREOF THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.\nThis Non-Disclosure Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by either\nparty in exercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of\nany right hereunder.\nThe provisions of this Non-Disclosure Agreement relating to confidentiality shall terminate two (2) years after the Director (or any\nsubstitute director appointed to replace the Director in accordance with Sections 1 and 4 of the Standstill Agreement) ceases to be a director of the\nCompany or Riverview Community Bank, except that any Confidential Information constituting trade secrets of the Company or Riverview\nCommunity Bank (as defined in 18 U.S.C . § 1839(3)) shall be kept confidential in accordance with the obligations of this Non-Disclosure\nAgreement for such longer time as such information constitutes a trade secret of the Company or Riverview Community Bank. The invalidity or\nunenforceability of any provision of this Non-Disclosure Agreement shall not affect the validity or enforceability of any other provision hereof.\nAll Confidential Information shall remain the property of the Company or Riverview Community Bank and none of the Directors,\nAncora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal shall by virtue of any disclosure of or use of any\nExhibit A-4\nConfidential Information acquire any rights with respect thereto, all of which rights (including all intellectual property rights) shall remain\nexclusively with the Company or Riverview Community Bank. At any time after the date on which the Director (or any substitute director\nappointed to replace the Director in accordance with Sections 1 and 4 of the Standstill Agreement) is no longer a director of the Company, upon the\nrequest of the Company for any reason, the Director and the Ancora Principals will, and will cause Ancora Advisors, the Ancora Parties, and any\nDirector Representative to, promptly return to the Company or destroy all hard copies of the Confidential Information and use reasonable efforts to\npermanently erase or delete all electronic copies of the Confidential Information in the possession or control of the Director, Ancora Advisors, the\nAncora Parties, any Director Representative or any Ancora Principal. Notwithstanding anything to the contrary contained in this paragraph, the\nDirector, the Ancora Principals, Ancora Advisors, the Ancora Parties and any Director Representative shall be permitted to retain such Confidential\nInformation as is necessary to enable them to comply with any applicable document retention requirements under applicable law or regulation and\nto retain any computer records and computer files containing any Confidential Information if required pursuant to their respective current automatic\narchiving and backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as the case may\nbe.\nUnless and until any substitute director appointed in accordance with Sections 1 and 4 of the Standstill Agreement executes a joinder to\nthis Non-Disclosure Agreement and agrees to be bound by the terms hereof applicable to the Director, the Ancora Principals shall not be permitted\nto discuss Confidential Information with, or obtain Confidential Information from, such substitute director.\n[Signature Page Follows]\nExhibit A-5\nAcceptance of the above terms shall be indicated by having this Non-Disclosure Agreement countersigned by the Director, the Ancora Principal,\nAncora Advisors and the Ancora Parties.\nSincerely,\nRIVERVIEW BANCORP, INC.\nBy: /s/Pat Sheaffer\nName: Pat Sheaffer\nTitle: Chairman and CEO\nAcknowledged and agreed as of the date first written above:\n/s/James M. Chadwick\nJames M. Chadwick, as Director\n/s/Frederick DiSanto\nFrederick DiSanto, as Ancora Principal\nANCORA ADVISORS, LLC\nMERLIN PARTNERS,\nAAMAF LP\nANCORA CATALYST FUND LP\nBy: /s/Frederick DiSanto\nBy:\n/s/Brian Hopkins\nName: Frederick DiSanto\nName:\nBrian Hopkins\nTitle:\nManaging Member\nTitle:\nManaging Member\nBy: /s/Patrick Sweeney\nName: Patrick Sweeney\nTitle:\nAssociate\n[Signature Page to Non-Disclosure Agreement]\nExhibit A-6	Exhibit A\nNon-Disclosure Agreement\nAugust 26, 2015\nReference is made to the Standstill Agreement, dated August 26, 2015 (the “Standstill Agreement”), by and among Riverview Bancorp,\nInc. (the “Company”), the Ancora Parties and James M. Chadwick, as representative of the Ancora Parties (the “Director”). Capitalized terms used\nbut not defined herein shall have the meanings ascribed to them in the Standstill Agreement, and the rules of interpretation set forth in Section 8 of\nthe Standstill Agreement shall apply to this Non-Disclosure Agreement mutatis mutandis.\nThe Director may be provided certain information and data in connection with his serving as a director of the Company or Riverview\nCommunity Bank that the Company or Riverview Community Bank wishes to keep confidential, including information (whether furnished in\nwriting or electronic format or orally) regarding the Company’s and Riverview Community Bank’s governance, board of directors, management,\nplans, strategies, business, finances or operations and information that the Company or Riverview Community Bank has obtained from third parties\nand with respect to which the Company or Riverview Community Bank is obligated to maintain confidentiality (collectively, “Confidential\nInformation”). Except as provided in this Non-Disclosure Agreement, the Director will not disclose any Confidential Information in any manner\nwhatsoever or use any Confidential Information other than in connection with serving as a director of the Company or Riverview Community Bank\nwithout, in each instance, securing the prior written consent of the Company (acting through a resolution of a majority of the Company’s directors).\nExcept as set forth in this paragraph, this Non-Disclosure Agreement shall not prevent the Director from privately disclosing\nConfidential Information to (i) officers, directors, accountants and counsel for the Company or Riverview Community Bank, (ii) the Director’s legal\ncounsel or legal counsel to the Ancora Parties (each a “Director Representative” and collectively, the “Director Representatives”) who needs to\nknow such information for the sole purpose of advising the Director on his actions as a director of the Company or Riverview Community Bank or\nadvising Ancora Advisors, LLC (“Ancora Advisors”) and the Ancora Parties (or the Ancora Affiliates) on its (or their) investment(s) in the\nCompany or (iii) Frederick DiSanto, Brian Hopkins and Patrick Sweeney, each an associate of Ancora Advisors (each an “Ancora Principal” and,\ncollectively, the “Ancora Principals”). Notwithstanding the foregoing, it is understood and agreed that the Director will not disclose any information\nthat the Director learns or obtains in his capacity as a director of the Company or Riverview Community Bank to any Director Representative or any\nAncora Principal to the extent such disclosure would be reasonably likely to constitute a waiver of the attorney-client privilege between the\nCompany or Riverview Community Bank and its counsel or the Company’s or Riverview Community Bank’s attorney work product privilege. The\nDirector also acknowledges and agrees that he will not disclose, and is prohibited by law and regulation from disclosing, to any Director\nRepresentative or any Ancora Principal any reports of examination or other confidential supervisory information of any bank regulatory authority,\nincluding the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of San Francisco, the Federal Deposit Insurance\nCorporation\nExhibit A-1\nand the Office of the Comptroller of the Currency. Any Director Representative shall only be provided Confidential Information to the extent that\nsuch Director Representative is informed of the confidential nature of the Confidential Information and agrees or is otherwise obligated to keep such\ninformation confidential and to restrict the use of such confidential information in accordance with the terms of this Non-Disclosure Agreement.\nThe Ancora Principals agree to keep confidential the Confidential Information and to restrict the use of such Confidential Information in accordance\nwith the terms of this Non-Disclosure Agreement, to be bound by this Non-Disclosure Agreement on the same terms as the Director by\ncountersigning this Non-Disclosure Agreement and not to use any Confidential Information in a manner that may be detrimental to the Company or\nits subsidiaries, including Riverview Community Bank. The Director, Ancora Advisors and the Ancora Parties shall be responsible for any breach of\nthis Agreement by the Director, any Director Representatives, Ancora Advisors, the Ancora Parties or Ancora Principals.\nThe term “Confidential Information” shall not include information that (a) is at the time of disclosure or thereafter becomes generally\navailable to the public other than as a result of a disclosure by the Director, Ancora Advisors, the Ancora Parties, a Director Representative or an\nAncora Principal in violation of the terms of this Non-Disclosure Agreement; (b) was, prior to disclosure by the Company or Riverview Community\nBank, already in the possession of the Director, a Director Representative or an Ancora Principal; provided that the source of such information was,\nto such person’s knowledge after reasonable inquiry, not bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Company or Riverview Community Bank; (c) becomes available to the Director, a Director Representative or an\nAncora Principal on a non-confidential basis from a source other than the Company, an affiliate of the Company (including Riverview Community\nBank) or an agent, representative, attorney, advisor, director, officer or employee of the Company or Riverview Community Bank (collectively, the\n“Company Representatives) that is, to such person’s knowledge after reasonable inquiry, not bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Company or Riverview Community Bank, and is not, to such person’s knowledge\nafter reasonable inquiry, under an obligation to the Company or Riverview Community Bank not to transmit the information to such person; or\n(d) was independently developed by the Director, a Director Representative or an Ancora Principal without reference to or use of the Confidential\nInformation.\nThe Director is aware, and will advise any Director Representative or an Ancora Principal who is informed of the matters that are the\nsubject of this Non-Disclosure Agreement, that the Confidential Information may constitute material, non-public information and of the restrictions\nimposed by the United States securities laws on the purchase or sale of securities by any person who is aware of material, non-public information\nand on the communication of such information to any other person who may purchase or sell such securities on the basis of such information. The\nDirector, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal to whom the Director transmits Confidential\nInformation under this Non-Disclosure Agreement will comply with all applicable federal and state securities laws in connection with the purchase\nor sale, directly or indirectly, of securities of the Company or any other entity of which the Director is provided material non-public information in\nhis capacity as a director of the Company or Riverview Community Bank for as long as the Director, Ancora\nExhibit A-2\nAdvisors, the Ancora Parties any Director Representative or any Ancora Principal are in possession of material non-public information about the\nCompany or such other entity. The Director and the Company acknowledge that none of the provisions hereto shall in any way limit Ancora\nAdvisors’, the Ancora Parties’ or the Ancora Principals’ activities in the ordinary course of business if such activities will not violate applicable\nsecurities laws or the obligations set forth in this Non-Disclosure Agreement.\nEach of the Director, any Ancora Principal and any Director Representative to whom the Director transmits Confidential Information\nunder this Non-Disclosure Agreement acknowledges, or shall be deemed to acknowledge, that none of the Company, any affiliate of the Company\nor any Company Representative makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation. None of the Company, any affiliate of the Company or any Company Representative shall have any liability to the Director, Ancora\nAdvisors, the Ancora Parties, any Director Representative or any Ancora Principal hereunder relating to or resulting from the use of the\nConfidential Information by the Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal or any errors in\nor omissions from the Confidential Information.\nIn the event that the Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal is requested in\nany proceeding or governmental inquiry to disclose any Confidential Information, the Director will give the Company prompt written notice, to the\nextent not legally prohibited, of such request so that the Company or Riverview Community Bank may seek an appropriate protective order or\nwaive compliance with the applicable provisions of this Non-Disclosure Agreement. If the Company or Riverview Community Bank seeks a\nprotective order, the Director, Ancora Advisors, the Ancora Parties, and the Ancora Principals agree to, and shall cause any Director Representative\nto, provide such cooperation as the Company or Riverview Community Bank shall reasonably request and in no event will they oppose action by the\nCompany or Riverview Community Bank to obtain a protective order or other relief to prevent the disclosure of Confidential Information or to\nobtain reliable assurance that confidential treatment will be afforded to the Confidential Information. If in the absence of a protective order, the\nDirector, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal, based upon the advice of counsel, is legally\nrequired to disclose Confidential Information, such person or entity may disclose without liability under this Non-Disclosure Agreement such\nportion of the Confidential Information that counsel advises that the Director, Ancora Advisors, the Ancora Parties, any Director Representative or\nany Ancora Principal is legally required to disclose, so long as the recipient of such Confidential Information is informed of this Non-Disclosure\nAgreement and the confidential nature of such Confidential Information. For the avoidance of doubt, there shall be no legal requirement applicable\nto the Director, Ancora Advisors, the Ancora Parties, or the Ancora Principals to disclose any Confidential Information solely by virtue of the fact\nthat, absent such disclosure, such parties would be prohibited from purchasing, selling, or engaging in derivative or other transactions with respect\nto securities of the Company.\nThe parties agree that irreparable damage would occur in the event any of the provisions of this Non-Disclosure Agreement were not\nperformed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly, the\nparties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Non-\nExhibit A-3\nDisclosure Agreement and to enforce specifically the terms and provisions of this Non-Disclosure Agreement exclusively in the State of\nWashington with a court of competent jurisdiction located in Clark County, Washington (the “Washington Courts”), in addition to any other\nremedies at law or in equity, and each party agrees it will not take any action, directly or indirectly, in opposition to the party seeking relief on the\ngrounds that any other remedy or relief is available at law or in equity. Each of the parties hereto agrees to waive any bonding requirement under\nany applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. In the event of litigation relating to this Non-\nDisclosure Agreement, if a court of competent jurisdiction determines that this Non-Disclosure Agreement has been breached by the Director,\nAncora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal, Ancora Advisors and the Ancora Parties will reimburse\nthe Company for its reasonable and documented out-of-pocket costs and expenses (including legal fees and expenses) incurred in connection with\nall such litigation (including any appeal relating thereto). Furthermore, each of the parties hereto irrevocably (a) consents to submit itself to the\npersonal jurisdiction of the Washington Courts in the event any dispute arises out of this Non-Disclosure Agreement, (b) agrees that it shall not\nattempt to deny or defeat such personal jurisdiction by motion or other request for leave from the Washington Courts, (c) agrees that it shall not\nbring any action relating to this Non-Disclosure Agreement in any court other than the Washington Courts, (d) waives the right to trial by jury, and\n(d) consents to service of process by the United States Postal Service or reputable overnight mail delivery service, in each case, signature requested,\nto the address set forth in Section 14 of the Standstill Agreement or as otherwise provided by applicable law. THIS NON-DISCLOSURE\nAGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITH RESPECT TO VALIDITY, INTERPRETATION, EFFECT\nAND ENFORCEMENT, BY THE LAWS OF THE STATE OF WASHINGTON WITHOUT GIVING EFFECT TO THE CHOICE OF LAW\nPRINCIPLES THEREOF THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.\nThis Non-Disclosure Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by either\nparty in exercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of\nany right hereunder.\nThe provisions of this Non-Disclosure Agreement relating to confidentiality shall terminate two (2) years after the Director (or any\nsubstitute director appointed to replace the Director in accordance with Sections 1 and 4 of the Standstill Agreement) ceases to be a director of the\nCompany or Riverview Community Bank, except that any Confidential Information constituting trade secrets of the Company or Riverview\nCommunity Bank (as defined in 18 U.S.C. § 1839(3)) shall be kept confidential in accordance with the obligations of this Non-Disclosure\nAgreement for such longer time as such information constitutes a trade secret of the Company or Riverview Community Bank. The invalidity or\nunenforceability of any provision of this Non-Disclosure Agreement shall not affect the validity or enforceability of any other provision hereof.\nAll Confidential Information shall remain the property of the Company or Riverview Community Bank and none of the Directors,\nAncora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal shall by virtue of any disclosure of or use of any\nExhibit A-4\nConfidential Information acquire any rights with respect thereto, all of which rights (including all intellectual property rights) shall remain\nexclusively with the Company or Riverview Community Bank. At any time after the date on which the Director (or any substitute director\nappointed to replace the Director in accordance with Sections 1 and 4 of the Standstill Agreement) is no longer a director of the Company, upon the\nrequest of the Company for any reason, the Director and the Ancora Principals will, and will cause Ancora Advisors, the Ancora Parties, and any\nDirector Representative to, promptly return to the Company or destroy all hard copies of the Confidential Information and use reasonable efforts to\npermanently erase or delete all electronic copies of the Confidential Information in the possession or control of the Director, Ancora Advisors, the\nAncora Parties, any Director Representative or any Ancora Principal. Notwithstanding anything to the contrary contained in this paragraph, the\nDirector, the Ancora Principals, Ancora Advisors, the Ancora Parties and any Director Representative shall be permitted to retain such Confidential\nInformation as is necessary to enable them to comply with any applicable document retention requirements under applicable law or regulation and\nto retain any computer records and computer files containing any Confidential Information if required pursuant to their respective current automatic\narchiving and backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as the case may\nbe.\nUnless and until any substitute director appointed in accordance with Sections 1 and 4 of the Standstill Agreement executes a joinder to\nthis Non-Disclosure Agreement and agrees to be bound by the terms hereof applicable to the Director, the Ancora Principals shall not be permitted\nto discuss Confidential Information with, or obtain Confidential Information from, such substitute director.\n[Signature Page Follows]\nExhibit A-5\nAcceptance of the above terms shall be indicated by having this Non-Disclosure Agreement countersigned by the Director, the Ancora Principal,\nAncora Advisors and the Ancora Parties.\nSincerely,\nRIVERVIEW BANCORP, INC.\nBy: /s/Pat Sheaffer\nName: Pat Sheaffer\nTitle: Chairman and CEO\nAcknowledged and agreed as of the date first written above:\n/s/James M. Chadwick\nJames M. Chadwick, as Director\n/s/Frederick DiSanto\nFrederick DiSanto, as Ancora Principal\nANCORA ADVISORS, LLC\nMERLIN PARTNERS,\nAAMAF LP\nANCORA CATALYST FUND LP\nBy: /s/Frederick DiSanto By: /s/Brian Hopkins\nName:  Frederick DiSanto Name: Brian Hopkins\nTitle: Managing Member Title: Managing Member\nBy: /s/Patrick Sweeney\nName: Patrick Sweeney\nTitle: Associate\n[Signature Page to Non-Disclosure Agreement]\nExhibit A-6	Exhibit A\nNon-Disclosure Agreement\nAugust 26, 2015\nReference is made to the Standstill Agreement, dated August 26, 2015 (the "Standstill Agreement"), by and among Riverview Bancorp,\nInc. (the "Company"), the Ancora Parties and James M. Chadwick, as representative of the Ancora Parties (the "Director"). Capitalized terms used\nbut\nnot defined herein shall have the meanings ascribed to them in the Standstill Agreement, and the rules of interpretation set forth in Section\n8\nof\nthe Standstill Agreement shall apply to this Non-Disclosure Agreement mutatis mutandis.\nThe Director may be provided certain information and data in connection with his serving as a director of the Company or Riverview\nCommunity Bank that the Company or Riverview Community Bank wishes to keep confidential, including information (whether furnished\nin\nwriting or electronic format or orally) regarding the Company's and Riverview Community Bank's governance, board of directors, management,\nplans,\nstrategies, business, finances or operations and information that the Company or Riverview Community Bank has obtained from third\nparties\nand with respect to which the Company or Riverview Community Bank is obligated to maintain confidentiality (collectively, "Confidential\nInformation"). Except as provided in this Non-Disclosure Agreement, the Director will not disclose any Confidential Information in any manner\nwhatsoever\nor\nuse\nany\nConfidential\nInformation\nother\nthan\nin\nconnection\nwith\nserving\nas\na\ndirector\nof\nthe\nCompany\nor\nRiverview\nCommunity\nBank\nwithout, in each instance, securing the prior written consent of the Company (acting through a resolution of a majority of the Company's directors).\nExcept as set forth in this paragraph, this Non-Disclosure Agreement shall not prevent the Director from privately disclosing\nConfidential Information to (i) officers, directors, accountants and counsel for the Company or Riverview Community Bank, (ii) the Director's legal\ncounsel or legal counsel to the Ancora Parties (each a "Director Representative" and collectively, the "Director Representatives") who needs to\nknow such information for the sole purpose of advising the Director on his actions as a director of the Company or Riverview Community Bank or\nadvising Ancora Advisors, LLC ("Ancora Advisors") and the Ancora Parties (or the Ancora Affiliates) on its (or their) investment(s) in the\nCompany or (iii) Frederick DiSanto, Brian Hopkins and Patrick Sweeney, each an associate of Ancora Advisors (each an "Ancora Principal" and,\ncollectively, the "Ancora Principals"). Notwithstanding the foregoing, it is understood and agreed that the Director will not disclose any information\nthat the Director learns or obtains in his capacity as a director of the Company or Riverview Community Bank to any Director Representative or any\nAncora Principal to the extent such disclosure would be reasonably likely to constitute a waiver of the attorney-client privilege between the\nCompany or Riverview Community Bank and its counsel or the Company's or Riverview Community Bank's attorney work product privilege. The\nDirector also acknowledges and agrees that he will not disclose, and is prohibited by law and regulation from disclosing, to any Director\nRepresentative or any Ancora Principal any reports of examination or other confidential supervisory information of any bank regulatory authority,\nincluding the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of San Francisco, the Federal Deposit Insurance\nCorporation\nExhibit A-1\nand the Office of the Comptroller of the Currency. Any Director Representative shall only be provided Confidential Information to the extent that\nsuch Director Representative is informed of the confidential nature of the Confidential Information and agrees or is otherwise obligated to keep such\ninformation confidential and to restrict the use of such confidential information in accordance with the terms of this Non-Disclosure Agreement.\nThe Ancora Principals agree to keep confidential the Confidential Information and to restrict the use of such Confidential Information in accordance\nwith the terms of this Non-Disclosure Agreement, to be bound by this Non-Disclosure Agreement on the same terms as the Director by\ncountersigning this Non-Disclosure Agreement and not to use any Confidential Information in a manner that may be detrimental to the Company\nor\nits subsidiaries, including Riverview Community Bank. The Director, Ancora Advisors and the Ancora Parties shall be responsible for any breach of\nthis Agreement by the Director, any Director Representatives, Ancora Advisors, the Ancora Parties or Ancora Principals.\nThe term "Confidential Information" shall not include information that (a) is at the time of disclosure or thereafter becomes generally\navailable to the public other than as a result of a disclosure by the Director, Ancora Advisors, the Ancora Parties, a Director Representative or an\nAncora Principal in violation of the terms of this Non-Disclosure Agreement; (b) was, prior to disclosure by the Company or Riverview Community\nBank, already in the possession of the Director, a Director Representative or an Ancora Principal; provided that the source of such information was,\nto such person's knowledge after reasonable inquiry, not bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Company or Riverview Community Bank; (c) becomes available to the Director, a Director Representative or an\nAncora Principal on a non-confidential basis from a source other than the Company, an affiliate of the Company (including Riverview Community\nBank) or an agent, representative, attorney, advisor, director, officer or employee of the Company or Riverview Community Bank (collectively,\nthe\n"Company\nRepresentatives")\nthat\nis,\nto\nsuch\nperson's\nknowledge\nafter\nreasonable\ninquiry,\nnot\nbound\nby\na\nconfidentiality\nagreement\nwith,\nor\nother\ncontractual, legal or fiduciary obligation of confidentiality to, the Company or Riverview Community Bank, and is not, to such person's knowledge\nafter reasonable inquiry, under an obligation to the Company or Riverview Community Bank not to transmit the information to such person; or\n(d) was independently developed by the Director, a Director Representative or an Ancora Principal without reference to or use of the Confidential\nInformation.\nThe Director is aware, and will advise any Director Representative or an Ancora Principal who is informed of the matters that are the\nsubject of this Non-Disclosure Agreement, that the Confidential Information may constitute material, non-public information and of the restrictions\nimposed by the United States securities laws on the purchase or sale of securities by any person who is aware of material, non-public information\nand on the communication of such information to any other person who may purchase or sell such securities on the basis of such information. The\nDirector, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal to whom the Director transmits Confidential\nInformation under this Non-Disclosure Agreement will comply with all applicable federal and state securities laws in connection with the purchase\nor\nsale, directly or indirectly, of securities of the Company or any other entity of which the Director is provided material non-public information in\nhis capacity as a director of the Company or Riverview Community Bank for as long as the Director, Ancora\nExhibit A-2\nAdvisors, the Ancora Parties any Director Representative or any Ancora Principal are in possession of material non-public information about the\nCompany or such other entity. The Director and the Company acknowledge that none of the provisions hereto shall in any way limit Ancora\nAdvisors', the Ancora Parties' or the Ancora Principals' activities in the ordinary course of business if such activities will not violate applicable\nsecurities laws or the obligations set forth in this Non-Disclosure Agreement.\nEach of the Director, any Ancora Principal and any Director Representative to whom the Director transmits Confidential Information\nunder this Non-Disclosure Agreement acknowledges, or shall be deemed to acknowledge, that none of the Company, any affiliate of the Company\nor any Company Representative makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation.\nNone\nof\nthe\nCompany,\nany\naffiliate\nof\nthe\nCompany\nor\nany\nCompany\nRepresentative\nshall\nhave\nany\nliability\nto\nthe\nDirector,\nAncora\nAdvisors, the Ancora Parties, any Director Representative or any Ancora Principal hereunder relating to or resulting from the use of the\nConfidential Information by the Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal or any errors\nin\nor omissions from the Confidential Information.\nIn the event that the Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal is requested in\nany proceeding or governmental inquiry to disclose any Confidential Information, the Director will give the Company prompt written notice, to\nthe\nextent not legally prohibited, of such request so that the Company or Riverview Community Bank may seek an appropriate protective order or\nwaive compliance with the applicable provisions of this Non-Disclosure Agreement. If the Company or Riverview Community Bank seeks\na\nprotective\norder,\nthe\nDirector,\nAncora\nAdvisors,\nthe\nAncora\nParties,\nand\nthe\nAncora\nPrincipals\nagree\nto,\nand\nshall\ncause\nany\nDirector\nRepresentative\nto, provide such cooperation as the Company or Riverview Community Bank shall reasonably request and in no event will they oppose action by\nthe\nCompany or Riverview Community Bank to obtain a protective order or other relief to prevent the disclosure of Confidential Information\nor\nto\nobtain reliable assurance that confidential treatment will be afforded to the Confidential Information. If in the absence of a protective order, the\nDirector, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal, based upon the advice of counsel, is legally\nrequired to disclose Confidential Information, such person or entity may disclose without liability under this Non-Disclosure Agreement such\nportion of the Confidential Information that counsel advises that the Director, Ancora Advisors, the Ancora Parties, any Director Representative or\nany Ancora Principal is legally required to disclose, so long as the recipient of such Confidential Information is informed of this Non-Disclosure\nAgreement and the confidential nature of such Confidential Information. For the avoidance of doubt, there shall be no legal requirement applicable\nto the Director, Ancora Advisors, the Ancora Parties, or the Ancora Principals to disclose any Confidential Information solely by virtue of the fact\nthat, absent such disclosure, such parties would be prohibited from purchasing, selling, or engaging in derivative or other transactions with respec\nto securities of the Company.\nThe parties agree that irreparable damage would occur in the event any of the provisions of this Non-Disclosure Agreement were\nnot\nperformed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly, the\nparties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Non-\nExhibit A-3\nDisclosure Agreement and to enforce specifically the terms and provisions of this Non-Disclosure Agreement exclusively in the State\nof\nWashington with a court of competent jurisdiction located in Clark County, Washington (the "Washington Courts"), in addition to any other\nremedies at law or in equity, and each party agrees it will not take any action, directly or indirectly, in opposition to the party seeking relief on the\ngrounds that any other remedy or relief is available at law or in equity. Each of the parties hereto agrees to waive any bonding requirement\nunder\nany applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. In the event of litigation relating to this Non-\nDisclosure Agreement, if a court of competent jurisdiction determines that this Non-Disclosure Agreement has been breached by the Director,\nAncora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal, Ancora Advisors and the Ancora Parties will reimburse\nthe Company for its reasonable and documented out-of-pocket costs and expenses (including legal fees and expenses) incurred in connection with\nall\nsuch\nlitigation\n(including\nany\nappeal\nrelating\nthereto).\nFurthermore,\neach\nof\nthe\nparties\nhereto\nirrevocably\n(a)\nconsents\nto\nsubmit\nitself\nto\nthe\npersonal jurisdiction of the Washington Courts in the event any dispute arises out of this Non-Disclosure Agreement, (b) agrees that it shall not\nattempt to deny or defeat such personal jurisdiction by motion or other request for leave from the Washington Courts, (c) agrees that it shall not\nbring any action relating to this Non-Disclosure Agreement in any court other than the Washington Courts, (d) waives the right to trial by jury,\nand\n(d) consents to service of process by the United States Postal Service or reputable overnight mail delivery service, in each case, signature requested,\nto the address set forth in Section 14 of the Standstill Agreement or as otherwise provided by applicable law. THIS NON-DISCLOSURE\nAGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITH RESPECT TO VALIDITY, INTERPRETATION, EFFECT\nAND ENFORCEMENT, BY THE LAWS OF THE STATE OF WASHINGTON WITHOUT GIVING EFFECT TO THE CHOICE OF LAW\nPRINCIPLES THEREOF THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.\nThis Non-Disclosure Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by either\nparty in exercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of\nany right hereunder.\nThe provisions of this Non-Disclosure Agreement relating to confidentiality shall terminate two (2) years after the Director (or any\nsubstitute director appointed to replace the Director in accordance with Sections 1 and 4 of the Standstill Agreement) ceases to be a director of the\nCompany or Riverview Community Bank, except that any Confidentia Information constituting trade secrets of the Company or Riverview\nCommunity Bank (as defined in 18 U.S.C. 8 1839(3)) shall be kept confidential in accordance with the obligations of this Non-Disclosure\nAgreement for such longer time as such information constitutes a trade secret of the Company or Riverview Community Bank. The invalidity\nor\nunenforceability of any provision of this Non-Disclosure Agreement shall not affect the validity or enforceability of any other provision hereof.\nAll Confidential Information shall remain the property of the Company or Riverview Community Bank and none of the Directors,\nAncora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal shall by virtue of any disclosure of or use of any\nExhibit A-4\nConfidential Information acquire any rights with respect thereto, all of which rights (including all intellectual property rights) shall remain\nexclusively with the Company or Riverview Community Bank. At any time after the date on which the Director (or any substitute director\nappointed to replace the Director in accordance with Sections 1 and 4 of the Standstill Agreement) is no longer a director of the Company, upon the\nrequest of the Company for any reason, the Director and the Ancora Principals will, and will cause Ancora Advisors, the Ancora Parties, and any\nDirector Representative to, promptly return to the Company or destroy all hard copies of the Confidential Information and use reasonable efforts to\npermanently erase or delete all electronic copies of the Confidential Information in the possession or control of the Director, Ancora Advisors, the\nAncora Parties, any Director Representative or any Ancora Principal. Notwithstanding anything to the contrary contained in this paragraph, the\nDirector, the Ancora Principals, Ancora Advisors, the Ancora Parties and any Director Representative shall be permitted to retain such Confidential\nInformation as is necessary to enable them to comply with any applicable document retention requirements under applicable law\nor\nregulation\nand\nto retain any computer records and computer files containing any Confidential Information if required pursuant to their respective current automatic\narchiving and backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as the case\nmay\nbe.\nUnless and until any substitute director appointed in accordance with Sections 1 and 4 of the Standstill Agreement executes a joinder to\nthis\nNon-Disclosure Agreement and agrees to be bound by the terms hereof applicable to the Director, the Ancora Principals shall not be permitted\nto discuss Confidential Information with, or obtain Confidential Information from, such substitute director.\n[Signature Page Follows]\nExhibit A-5\nAcceptance of the above terms shall be indicated by having this Non-Disclosure Agreement countersigned by the Director, the Ancora Principal,\nAncora Advisors and the Ancora Parties.\nSincerely,\nRIVERVIEW BANCORP, INC.\nBy: /s/Pat Sheaffer\nName: Pat Sheaffer\nTitle: Chairman and CEO\nAcknowledged and agreed as of the date first written above:\n/s/James M. Chadwick\nJames M. Chadwick, as Director\n/s/Frederick DiSanto\nFrederick DiSanto, as Ancora Principal\nANCORA ADVISORS, LLC\nMERLIN PARTNERS,\nAAMAF LP\nANCORA CATALYST FUND LP\nBy:\n/S/Frederick DiSanto\nBy:\n/s/Brian Hopkins\nName: Frederick DiSanto\nName:\nBrian Hopkins\nTitle:\nManaging Member\nTitle:\nManaging Member\nBy:\n/s/Patrick Sweeney\nName: Patrick Sweeney\nTitle: Associate\n[Signature Page to Non-Disclosure Agreement]\nExhibit A-6	Exhibit A\nNon-Disclosure Agreement\nAugust 26, 2015\nReference is made to the Standstill Agreement, dated August 26, 2015 (the “Standstill Agreement”), by and among Riverview Bancorp,\nInc. (the “Company”), the Ancora Parties and James M. Chadwick, as representative of the Ancora Parties (the “Director”). Capitalized terms used\nbut not defined herein shall have the meanings ascribed to them in the Standstill Agreement, and the rules of interpretation set forth in Section 8 of\nthe Standstill Agreement shall apply to this Non-Disclosure Agreement mutatis mutandis.\nThe Director may be provided certain information and data in connection with his serving as a director of the Company or Riverview\nCommunity Bank that the Company or Riverview Community Bank wishes to keep confidential, including information (whether furnished in\nwriting or electronic format or orally) regarding the Company’s and Riverview Community Bank’s governance, board of directors, management,\nplans, strategies, business, finances or operations and information that the Company or Riverview Community Bank has obtained from third parties\nand with respect to which the Company or Riverview Community Bank is obligated to maintain confidentiality (collectively, “Confidential\nInformation”). Except as provided in this Non-Disclosure Agreement, the Director will not disclose any Confidential Information in any manner\nwhatsoever or use any Confidential Information other than in connection with serving as a director of the Company or Riverview Community Bank\nwithout, in each instance, securing the prior written consent of the Company (acting through a resolution of a majority of the Company’s directors).\nExcept as set forth in this paragraph, this Non-Disclosure Agreement shall not prevent the Director from privately disclosing\nConfidential Information to (i) officers, directors, accountants and counsel for the Company or Riverview Community Bank, (ii) the Director ’s legal\ncounsel or legal counsel to the Ancora Parties (each a “Director Representative” and collectively, the “Director Representatives”) who needs to\nknow such information for the sole purpose of advising the Director on his actions as a director of the Company or Riverview Community Bank or\nadvising Ancora Advisors, LLC (“Ancora Advisors”) and the Ancora Parties (or the Ancora Affiliates) on its (or their) investment(s) in the\nCompany or (iii) Frederick DiSanto, Brian Hopkins and Patrick Sweeney, each an associate of Ancora Advisors (each an “Ancora Principal” and,\ncollectively, the “Ancora Principals”). Notwithstanding the foregoing, it is understood and agreed that the Director will not disclose any information\nthat the Director learns or obtains in his capacity as a director of the Company or Riverview Community Bank to any Director Representative or any\nAncora Principal to the extent such disclosure would be reasonably likely to constitute a waiver of the attorney-client privilege between the\nCompany or Riverview Community Bank and its counsel or the Company’s or Riverview Community Bank’s attorney work product privilege. The\nDirector also acknowledges and agrees that he will not disclose, and is prohibited by law and regulation from disclosing, to any Director\nRepresentative or any Ancora Principal any reports of examination or other confidential supervisory information of any bank regulatory authority,\nincluding the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of San Francisco, the Federal Deposit Insurance\nCorporation\nExhibit A-1\nand the Office of the Comptroller of the Currency. Any Director Representative shall only be provided Confidential Information to the extent that\nsuch Director Representative is informed of the confidential nature of the Confidential Information and agrees or is otherwise obligated to keep such\ninformation confidential and to restrict the use of such confidential information in accordance with the terms of this Non-Disclosure Agreement.\nThe Ancora Principals agree to keep confidential the Confidential Information and to restrict the use of such Confidential Information in accordance\nwith the terms of this Non-Disclosure Agreement, to be bound by this Non-Disclosure Agreement on the same terms as the Director by\ncountersigning this Non-Disclosure Agreement and not to use any Confidential Information in a manner that may be detrimental to the Company or\nits subsidiaries, including Riverview Community Bank. The Director, Ancora Advisors and the Ancora Parties shall be responsible for any breach of\nthis Agreement by the Director, any Director Representatives, Ancora Advisors, the Ancora Parties or Ancora Principals.\nThe term “Confidential Information” shall not include information that (a) is at the time of disclosure or thereafter becomes generally\navailable to the public other than as a result of a disclosure by the Director, Ancora Advisors, the Ancora Parties, a Director Representative or an\nAncora Principal in violation of the terms of this Non-Disclosure Agreement; (b) was, prior to disclosure by the Company or Riverview Community\nBank, already in the possession of the Director, a Director Representative or an Ancora Principal; provided that the source of such information was,\nto such person’s knowledge after reasonable inquiry, not bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Company or Riverview Community Bank; (c) becomes available to the Director, a Director Representative or an\nAncora Principal on a non-confidential basis from a source other than the Company, an affiliate of the Company (including Riverview Community\nBank) or an agent, representative, attorney, advisor, director, officer or employee of the Company or Riverview Community Bank (collectively, the\n“Company Representatives”) that is, to such person’s knowledge after reasonable inquiry, not bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Company or Riverview Community Bank, and is not, to such person’s knowledge\nafter reasonable inquiry, under an obligation to the Company or Riverview Community Bank not to transmit the information to such person; or\n(d) was independently developed by the Director, a Director Representative or an Ancora Principal without reference to or use of the Confidential\nInformation.\nThe Director is aware, and will advise any Director Representative or an Ancora Principal who is informed of the matters that are the\nsubject of this Non-Disclosure Agreement, that the Confidential Information may constitute material, non-public information and of the restrictions\nimposed by the United States securities laws on the purchase or sale of securities by any person who is aware of material, non-public information\nand on the communication of such information to any other person who may purchase or sell such securities on the basis of such information. The\nDirector, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal to whom the Director transmits Confidential\nInformation under this Non-Disclosure Agreement will comply with all applicable federal and state securities laws in connection with the purchase\nor sale, directly or indirectly, of securities of the Company or any other entity of which the Director is provided material non-public information in\nhis capacity as a director of the Company or Riverview Community Bank for as long as the Director, Ancora\nExhibit A-2\nAdvisors, the Ancora Parties any Director Representative or any Ancora Principal are in possession of material non-public information about the\nCompany or such other entity. The Director and the Company acknowledge that none of the provisions hereto shall in any way limit Ancora\nAdvisors’, the Ancora Parties’ or the Ancora Principals’ activities in the ordinary course of business if such activities will not violate applicable\nsecurities laws or the obligations set forth in this Non-Disclosure Agreement.\nEach of the Director, any Ancora Principal and any Director Representative to whom the Director transmits Confidential Information\nunder this Non-Disclosure Agreement acknowledges, or shall be deemed to acknowledge, that none of the Company, any affiliate of the Company\nor any Company Representative makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation. None of the Company, any affiliate of the Company or any Company Representative shall have any liability to the Director, Ancora\nAdvisors, the Ancora Parties, any Director Representative or any Ancora Principal hereunder relating to or resulting from the use of the\nConfidential Information by the Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal or any errors in\nor omissions from the Confidential Information.\nIn the event that the Director, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal is requested in\nany proceeding or governmental inquiry to disclose any Confidential Information, the Director will give the Company prompt written notice, to the\nextent not legally prohibited, of such request so that the Company or Riverview Community Bank may seek an appropriate protective order or\nwaive compliance with the applicable provisions of this Non-Disclosure Agreement. If the Company or Riverview Community Bank seeks a\nprotective order, the Director, Ancora Advisors, the Ancora Parties, and the Ancora Principals agree to, and shall cause any Director Representative\nto, provide such cooperation as the Company or Riverview Community Bank shall reasonably request and in no event will they oppose action by the\nCompany or Riverview Community Bank to obtain a protective order or other relief to prevent the disclosure of Confidential Information or to\nobtain reliable assurance that confidential treatment will be afforded to the Confidential Information. If in the absence of a protective order, the\nDirector, Ancora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal, based upon the advice of counsel, is legally\nrequired to disclose Confidential Information, such person or entity may disclose without liability under this Non-Disclosure Agreement such\nportion of the Confidential Information that counsel advises that the Director, Ancora Advisors, the Ancora Parties, any Director Representative or\nany Ancora Principal is legally required to disclose, so long as the recipient of such Confidential Information is informed of this Non-Disclosure\nAgreement and the confidential nature of such Confidential Information. For the avoidance of doubt, there shall be no legal requirement applicable\nto the Director, Ancora Advisors, the Ancora Parties, or the Ancora Principals to disclose any Confidential Information solely by virtue of the fact\nthat, absent such disclosure, such parties would be prohibited from purchasing, selling, or engaging in derivative or other transactions with respect\nto securities of the Company.\nThe parties agree that irreparable damage would occur in the event any of the provisions of this Non-Disclosure Agreement were not\nperformed in accordance with the terms hereof and that such damage would not be adequately compensable in monetary damages. Accordingly, the\nparties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Non-\nExhibit A-3\nDisclosure Agreement and to enforce specifically the terms and provisions of this Non-Disclosure Agreement exclusively in the State of\nWashington with a court of competent jurisdiction located in Clark County, Washington (the “Washington Courts”), in addition to any other\nremedies at law or in equity, and each party agrees it will not take any action, directly or indirectly, in opposition to the party seeking relief on the\ngrounds that any other remedy or relief is available at law or in equity. Each of the parties hereto agrees to waive any bonding requirement under\nany applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. In the event of litigation relating to this Non-\nDisclosure Agreement, if a court of competent jurisdiction determines that this Non-Disclosure Agreement has been breached by the Director,\nAncora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal, Ancora Advisors and the Ancora Parties will reimburse\nthe Company for its reasonable and documented out-of-pocket costs and expenses (including legal fees and expenses) incurred in connection with\nall such litigation (including any appeal relating thereto). Furthermore, each of the parties hereto irrevocably (a) consents to submit itself to the\npersonal jurisdiction of the Washington Courts in the event any dispute arises out of this Non-Disclosure Agreement, (b) agrees that it shall not\nattempt to deny or defeat such personal jurisdiction by motion or other request for leave from the Washington Courts, (c) agrees that it shall not\nbring any action relating to this Non-Disclosure Agreement in any court other than the Washington Courts, (d) waives the right to trial by jury, and\n(d) consents to service of process by the United States Postal Service or reputable overnight mail delivery service, in each case, signature requested,\nto the address set forth in Section 14 of the Standstill Agreement or as otherwise provided by applicable law. THIS NON-DISCLOSURE\nAGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITH RESPECT TO VALIDITY, INTERPRETATION, EFFECT\nAND ENFORCEMENT, BY THE LAWS OF THE STATE OF WASHINGTON WITHOUT GIVING EFFECT TO THE CHOICE OF LAW\nPRINCIPLES THEREOF THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.\nThis Non-Disclosure Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by either\nparty in exercising any right hereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of\nany right hereunder.\nThe provisions of this Non-Disclosure Agreement relating to confidentiality shall terminate two (2) years after the Director (or any\nsubstitute director appointed to replace the Director in accordance with Sections 1 and 4 of the Standstill Agreement) ceases to be a director of the\nCompany or Riverview Community Bank, except that any Confidential Information constituting trade secrets of the Company or Riverview\nCommunity Bank (as defined in 18 U.S.C . § 1839(3)) shall be kept confidential in accordance with the obligations of this Non-Disclosure\nAgreement for such longer time as such information constitutes a trade secret of the Company or Riverview Community Bank. The invalidity or\nunenforceability of any provision of this Non-Disclosure Agreement shall not affect the validity or enforceability of any other provision hereof.\nAll Confidential Information shall remain the property of the Company or Riverview Community Bank and none of the Directors,\nAncora Advisors, the Ancora Parties, any Director Representative or any Ancora Principal shall by virtue of any disclosure of or use of any\nExhibit A-4\nConfidential Information acquire any rights with respect thereto, all of which rights (including all intellectual property rights) shall remain\nexclusively with the Company or Riverview Community Bank. At any time after the date on which the Director (or any substitute director\nappointed to replace the Director in accordance with Sections 1 and 4 of the Standstill Agreement) is no longer a director of the Company, upon the\nrequest of the Company for any reason, the Director and the Ancora Principals will, and will cause Ancora Advisors, the Ancora Parties, and any\nDirector Representative to, promptly return to the Company or destroy all hard copies of the Confidential Information and use reasonable efforts to\npermanently erase or delete all electronic copies of the Confidential Information in the possession or control of the Director, Ancora Advisors, the\nAncora Parties, any Director Representative or any Ancora Principal. Notwithstanding anything to the contrary contained in this paragraph, the\nDirector, the Ancora Principals, Ancora Advisors, the Ancora Parties and any Director Representative shall be permitted to retain such Confidential\nInformation as is necessary to enable them to comply with any applicable document retention requirements under applicable law or regulation and\nto retain any computer records and computer files containing any Confidential Information if required pursuant to their respective current automatic\narchiving and backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as the case may\nbe.\nUnless and until any substitute director appointed in accordance with Sections 1 and 4 of the Standstill Agreement executes a joinder to\nthis Non-Disclosure Agreement and agrees to be bound by the terms hereof applicable to the Director, the Ancora Principals shall not be permitted\nto discuss Confidential Information with, or obtain Confidential Information from, such substitute director.\n[Signature Page Follows]\nExhibit A-5\nAcceptance of the above terms shall be indicated by having this Non-Disclosure Agreement countersigned by the Director, the Ancora Principal,\nAncora Advisors and the Ancora Parties.\nSincerely,\nRIVERVIEW BANCORP, INC.\nBy: /s/Pat Sheaffer\nName: Pat Sheaffer\nTitle: Chairman and CEO\nAcknowledged and agreed as of the date first written above:\n/s/James M. Chadwick\nJames M. Chadwick, as Director\n/s/Frederick DiSanto\nFrederick DiSanto, as Ancora Principal\nANCORA ADVISORS, LLC\nMERLIN PARTNERS,\nAAMAF LP\nANCORA CATALYST FUND LP\nBy: /s/Frederick DiSanto\nBy:\n/s/Brian Hopkins\nName: Frederick DiSanto\nName:\nBrian Hopkins\nTitle:\nManaging Member\nTitle:\nManaging Member\nBy: /s/Patrick Sweeney\nName: Patrick Sweeney\nTitle:\nAssociate\n[Signature Page to Non-Disclosure Agreement]\nExhibit A-6
+8a7c202263381bfbeb524450b7008425.pdf	effective_date jurisdiction party	EXHIBIT (d)(6)\n[McDonald Investments Logo]\nMarch 21, 2001\nCONFIDENTIAL\nMcDonald Investments Inc.\nMcDonald Investment Center\n800 Superior Avenue\nCleveland, Ohio 44114\nMcDonald Investments Inc.,\nA KeyCorp Company\n800 Superior Avenue\nCleveland, Ohio 44114-2603\nTel: 216 443-2300\nLadies and Gentlemen:\nYou have advised us that you are acting on behalf of SMC Corporation (the "Company") in its consideration of a possible sale of its business, and you have agreed to discuss with us our possible interest in\nacquiring the Company. As a condition to entering into such discussions, you and the Company have required that we agree to keep strictly confidential all information provided to us with respect to this matter.\nThis letter will confirm our agreement with you and the Company to retain in strict confidence all oral or written information furnished to us by or on behalf of the Company, its representatives or agents, whether\nfurnished before or after the date of this letter, and all notes, analyses, compilations, studies or other documents, whether prepared by us or others, which contain or otherwise reflect such information (collectively,\n"Confidential Information") . For purposes of this agreement, Confidential Information does not include information which (i) is or becomes generally available to the public other than as a result of disclosure by us,\n(ii) was available to us on a non-confidential basis prior to its disclosure by or on behalf of the Company, or (iii) becomes available to us on a non-confidential basis from a source other than the Company or its\nrepresentatives who is not bound by a confidentiality agreement with the Company, its representatives or its agents or otherwise prohibited from transmitting the information to us by a contractual, legal or fiduciary\nobligation.\nWe will use any Confidential Information only for the purpose of evaluating the proposed transaction and will not use it for any other purpose. Without the specific prior written consent of the Company or as\nexpressly otherwise permitted by the terms hereof, we also will not disclose any Confidential Information to any other person or entity other than our directors, officers, employees and advisors who require such\nmaterial for the purpose of evaluating the proposed transaction (provided that such persons shall be informed by us of the confidential nature of the Confidential Information and of the fact that its use is subject to the\nterms of this agreement). We agree to be jointly and severally liable for any breach of this agreement by any of those persons to whom we provide any Confidential Information and we agree to indemnify and hold\nharmless the Company from any damage, loss, cost or liability, including legal fees, arising out of or resulting from such breach.\nWithout the prior written consent of the Company, we and our representatives will not disclose to any person (i) the fact that the Confidential Information has been made available to us or that we have inspected\nany portion of the Confidential Information, (ii) the fact that any discussions or negotiations are taking place concerning a possible transaction, or (iii) any of the terms, conditions or other facts with respect to any\npossible transaction, including the status thereof, unless and only to the extent that such disclosure (after making reasonable efforts to avoid such disclosure and after advising and consulting with the Company about\nyour intention to make, and the proposed contents of, such\ndisclosure) is, in the opinion of our counsel, required to be made by us in order to satisfy our obligations under applicable United States securities laws.\nIn the event that we or our representatives are requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, Civil Investigative Demand or similar process) to disclose\nany of the Confidential Information, it is agreed that we or such representative, as the case may be, will provide the Company with prompt notice of such request(s) so that it may seek an appropriate protective order\nor other appropriate remedy and/or waive our compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or that the Company grants a waiver hereunder,\nwe may furnish that portion (and only that portion) of the Confidential Information which, in the written opinion of our counsel, we are legally compelled to disclose and will exercise our best efforts to obtain reliable\nassurance that confidential treatment will be accorded any Confidential Information so furnished.\nWithout the prior written consent of the Company, (i) neither we nor those of our Representatives who are aware of the Evaluation Material and/or the possibility of an Acquisition Transaction will initiate or cause to\nbe initiated any communications with any employee of the Company concerning the Confidential Information or any possible transaction and (ii) none of our directors, officers or employees who are aware of the\nConfidential Information and/or the possibility of a transaction will, for the two-year period from the date of this letter agreement, solicit or cause to be solicited the employment of or hire any employee of the Company\nwho has not been involuntarily terminated by the Company.\nWe agree that, for a period of two years from the date of this agreement, unless such action shall have been specifically invited in writing by the Board of Directors of the Company, neither we nor any of our\naffiliates or Advisors will, directly or indirectly, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, participate in or cause or in any way assist any other person to effect or seek, offer or propose\n(whether publicly or otherwise) to effect or participate in (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the Company or any of its subsidiaries, (ii) any tender or exchange offer or\nmerger or other business combination involving the Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or\nany of its subsidiaries or (iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules promulgated by the Securities and Exchange Commission) or consents to vote any voting securities of the\nCompany, (b) form, join or in any way participate in a "group" (as defined under the Securities Exchange Act of 1934, as amended) with respect to any of the types of matters set forth in (a) above, (c) otherwise act,\nalone or in concert with others, to seek to control or influence the management, the Board of Directors or policies of the Company, (d) take any action which might force the Company to make a public announcement\nregarding any of the types of matters set forth in (a) above, or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing. We also agree during any such period not to\nrequest the Company (or its directors, officers, employees, stockholders or agents), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence).\nWe acknowledge that we are aware, and will advise our representatives, that the federal securities laws prohibit any person who has received from an issuer material, non-public information from purchasing or\nselling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nIf we determine not to proceed with a transaction or upon the written request of the Company, we will promptly deliver to the Company all documents or other materials furnished by the Company to us or our\nrepresentatives constituting Confidential Information, together with all copies thereof. In the event of such request, all other documents or other matter constituting Confidential Information in our\n2\npossession or in the possession of our representatives will be destroyed, with any such destruction confirmed by us in writing to the Company.\nWe acknowledge that a breach of our obligations hereunder will cause irreparable harm to the Company for which monetary damages are not adequate compensation. Therefore, without prejudice to the rights and\nremedies otherwise available to it, the Company shall be entitled to equitable relief by way of injunction if we or any of our representatives breach or threaten to breach any of the provisions of this agreement. For\nsuch purpose, we hereby consent to jurisdiction of the United States District Court for Oregon and waive any obligation the Company may have to post a bond or other security as a condition to obtaining such\ninjunctive or other equitable relief.\nAlthough we understand that the Company has endeavored to include in the Confidential Information information known to it which it believes to be relevant for the purpose of our investigation, we acknowledge that\nneither you, the Company nor its agents or its representatives makes any representation or warranty as to the accuracy or completeness of the Confidential Information. We agree that neither you, the Company nor\nits agents or its representatives shall have any liability to us or any of our representatives resulting from the use of the Confidential Information by us or such representatives. Only those representations and\nwarranties that may be made to us or our affiliates in a definitive written agreement for a proposed transaction, when, as and if executed and subject to such limitations and restrictions as maybe specified therein,\nshall have any legal effect, and we agree that if we determine to engage in a transaction such determination will be based solely on the terms of such written agreement and on our own investigation, analysis and\nassessment of the business to be acquired.\nWe acknowledge that the Company reserves the right to reject any and all offers to acquire the Company.\nThis letter constitutes the entire agreement of the parties with respect to the subject matter hereof. The agreements set forth herein may be modified or waived only by a separate writing signed by the Company\nand us expressly so modifying or waiving such agreements. Except as otherwise provided herein, the rights and obligations provided by this agreement shall expire on the third anniversary of the date first above\nwritten.\nWe further understand and agree that no failure or delay by the Company or McDonald in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\nThis agreement shall be governed by and construed in accordance with the laws of the State of Oregon, without giving effect to the conflict of laws or provisions thereof. We agree and consent to personal\njurisdiction and service and venue in any federal or state court within the State of Oregon\n3\nhaving subject matter jurisdiction, for the purposes of any action, suit or proceeding arising out of or related to this agreement.\nIf you are in agreement with the foregoing, please sign and return one copy of this letter, which thereupon will constitute our Agreement with respect to the subject matter hereof.\nVery truly yours,\n/s/ Raj Trikha\nBy /s/ Kay Toolson\non behalf of\nMonaco Coach Corp.\nConfirmed and agreed to as of\nthe date first above written:\nMcDONALD INVESTMENTS INC.\n(Individually and as agent for SMC Corporation)\nBy: /s/ Raj Trikha\nName: Raj Trikha\nTitle: Managing Director\n4	EXHIBIT (d)(6)\n[McDonald Investments Logo]\nMarch 21, 2001\nCONFIDENTIAL\nMcDonald Investments Inc. McDonald Investments Inc.,\nMcDonald Investment Center A KeyCorp Company\n800 SuperiorAvenue 800 SuperiorAvenue\nCleveland, Ohio 44114 Cleveland, Ohio 44114-2603\nTel: 216 443-2300\nLadies and G entlemen:\nYou have advised us thatyou are acting on behalf ofSMC Corporation (the "Company") in its consideration ofa possible sale of is business, and you have agreed to discuss with us our possible interestin\nacquiring the Company. As a condition to entering into such discussions, you and the Company have required that we agree to keep strictly confidential all information provided to us with respect to this matter.\nThis letter will confirm our agreement with you and the Company to retain in strict confidence all oral or written information furnished to us by or on behalf of the Company, its representatives or agents, whether\nfurnished before or after the date of this letter, and all notes, analyses, compilations, studies or other documents, whether prepared by us or others, which contain or otherwise reflect such information (collectively,\n"C onfidential Information"). For purposes of this agreement, Confidential Information does not include information which (i) is or becomes generally available to the public other than as a result of disclosure by us,\n(ii) was available to us on a non-confidential basis priorto is disclosure by or on behalf of the Company, or (iii) becomes available to us on a non-confidential basis from a source otherthan the Company or is\nrepresentatives who is not bound by a confidentiality agreement with the Company, its representatives or its agents or otherwise prohibited from transmitting the information to us by a contractual, legal or fiducian/\nobligation.\nWe will use any Confidential Information only for the purpose of evaluating the proposed transaction and will not use it for any other purpose. Without the specific prior written consent of the Company or as\nexpressly otherwise permitted by the terms hereof, we also will not disclose any Confidential Information to any other person or entity otherthan our directors, officers, employees and advisors who require such\nmaterial for the purpose of evaluating the proposed transaction (provided that such persons shall be informed by us of the confidential nature of the Confidential Information and of the fact that is use is subject to the\nterms ofthis agreement). We agree to be jointly and severally liable for any breach of this agreement by any of those persons to whom we provide any Confidential Information and we agree to indemnify and hold\nharmless the Company from any damage, loss, costor liability, including legal fees, arising out of or resulting from such breach.\nWithout the prior written consent of the Company, we and our representatives will not disclose to any person (i) the fact that the Confidential Information has been made available to us orthat we have inspected\nany portion of the Confidential Information, (ii) the fact that any discussions or negotiations are taking place concerning a possible tIansaction, or (iii) any of the terms, conditions or other facs with respect to any\npossible transaction, including the status thereof, unless and only to the extent that such disclosure (after making reasonable efforts to avoid such disclosure and after advising and consulting with the Company about\nyour intention to make, and the proposed contents of, such\ndisclosure) is, in the opinion ofourcounsel, required to be made by us in order to satisfy ourobligations underapplicable United States securities laws.\nIn the event that we or our representatives are requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, Civil Investigative Demand or similar process) to disclose\nany of the Confidential Information, it is agreed that we or such representative, as the case may be, will provide the Company with prompt notice of such request(s) so that it may seek an appropriate protective order\nor other appropriate remedy and/or waive our compliance with the provisions ofthis Agreement. In the event that such protective order or other remedy is not obtained, orthat the Company grants a waiver hereunder,\nwe may furnish that portion (and only that portion) of the Confidential Information which, in the written opinion ofour counsel, we are legally compelled to disclose and will exercise our best efforts to obtain reliable\nassurance that confidential treatment will be accorded any Confidential Information so furnished.\nWithout the prior written consent of the Company, (i) neither we northose of our Representatives who are aware of the Evaluation Material and/or the possibility of an Acquisition Transaction will initiate or cause to\nbe initiated any communications with any employee of the Company concerning the Confidential Information or any possible transaction and (ii) none of our directors, officers or employees who are aware of the\nConfidential Information and/or the possibility of a transaction will, forthe two-year period from the date ofthis letter agreement, solicit or cause to be solicited the employment of or hire any employee of the Company\nwho has not been involuntarily terminated by the Company.\nWe agree that, for a period of two years from the date of this agreement, unless such action shall have been specifically invited in writing by the Board of Directors of the Company, neither we nor any of our\naffiliates or Advisors will, directly or indirectly, (a) effect or seek, offer or propose (whether publicly or othenNise) to effect, participate in or cause or in any way assist any other person to effector seek, offer or propose\n(whether publicly or othenNise) to effector participate in (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the Company or any of is subsidiaries, (ii) any tender or exchange offer or\nmerger or other business combination involving the Company or any of is subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinany transaction with respect to the Company or\nany of its subsidiaries or (iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules promulgated by the Securities and Exchange Commission) or consents to vote any voting securities of the\nCompany, (b) form, join or in any way participate in a "group" (as defined under the Securities Exchange Act of 1934, as amended) with respect to any of the types of matters set forth in (a) above, (c) otherwise act,\nalone or in concert with others, to seek to control or influence the management, the Board of Directors or policies of the Company, (d) take any action which might force the Company to make a public announcement\nregarding any of the types of matters set forth in (a) above, or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing. We also agree during any such period not to\nrequest the Company (or its directors, officers, employees, stockholders or agents), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence).\nWe acknowledge that we are aware, and will advise our representatives, that the federal securities laws prohibit any person who has received from an issuer material, non-public information from purchasing or\nselling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nIf we determine not to proceed with a transaction or upon the written request of the Company, we will promptly deliver to the Company all documents or other materials furnished by the Company to us or our\nrepresentatives constituting Confidential Information, together with all copies thereof. In the event of such request, all other documents or other matter constituting Confidential Information in our\npossession or in the possession of our representatives will be destroyed, with any such destruction confirmed by us in writing to the Company.\nWe acknowledge that a breach of our obligations hereunder will cause irreparable harm to the Company for which monetary damages are not adequate compensation. Therefore, without prejudice to the rights and\nremedies otherwise available to it, the Company shall be entitled to equitable relief by way of injunction if we or any ofour representatives breach or threaten to breach any of the provisions of this agreement. For\nsuch purpose, we hereby consent to jurisdiction of the United States District Courtfor Oregon and waive any obligation the Company may have to posta bond or other security as a condition to obtaining such\ninjunctive or other equitable relief.\nAlthough we understand that the Company has endeavored to include in the Confidential Information information known to it which it believes to be relevantfor the purpose of our investigation, we acknowledge that\nneither you, the Company nor its agenE or its representatives makes any representation or warranty as to the accuracy or completeness of the Confidential Information. We agree that neither you, the Company nor\nits agents or is representatives shall have any liability to us or any ofour representatives resulting from the use of the Confidential Information by us or such representatives. Only those representations and\nwarranties that may be made to us or our affiliates in a definitive written agreement for a proposed transaction, when, as and if executed and subject to such limitations and restrictions as maybe specified therein,\nshall have any legal effect, and we agree that if we determine to engage in a transaction such determination will be based solely on the terms of such written agreement and on our own investigation, analysis and\nassessment of the business to be acquired.\nWe acknowledge that the Company reserves the right to reject any and all offers to acquire the Company.\nThis letter constitutes the entire agreement of the parties with respect to the subject matter hereof. The agreements set forth herein may be modified or waived only by a separate writing signed by the Company\nand us expressly so modifying or waiving such agreements. Except as othenNise provided herein, the rights and obligations provided by this agreement shall expire on the third anniversary of the date first above\nwritten.\nWe further understand and agree that no failure or delay by the Company or McDonald in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other orfurther exercise thereof orthe exercise of any right, power or privilege hereunder.\nThis agreement shall be governed by and construed in accordance with the laws of the State of Oregon, without giving effect to the conflict of laws or provisions thereof. We agree and consent to personal\njurisdiction and service and venue in any federal or state court within the State of Oregon\nhaving subject matterjurisdiction, for the purposes of any action, suit or proceeding arising out of or related to this agreement.\nIf you are in agreement with the foregoing, please sign and return one copy of this letter, which thereupon will constitute our Agreement with respect to the subject matter hereof.\nVeiy truly yours,\n/5/ Raj Trikha\nBy /5/ Kay Toolson\non behalf of\nMonaco Coach Corp.\nConfirmed and agreed to as of\nthe date first above written:\nMCDONALD INVESTMENTS INC.\n(Individually and as agentfor SMC Corporation)\nBy: /s/ Raj Trikha\nName: RajTrikha\nTitle: Managing Director	EXHIBIT (d)(6)\n[McDonald Investments Logo]\nMarch 21, 2001\nCONFIDENTIAL\nMcDonald Investments Inc.\nMcDonald Investments Inc.,\nMcDonald Investment Center\nA KeyCorp Company\n800 Superior Avenue\n800 Superior Avenue\nCleveland, Ohio 44114\nCleveland, Ohio 44114-2603\nTel: 216 443-2300\nLadies and Gentlemen:\nYou have advised us that you are acting on behalf of SMC Corporation (the "Company") in its consideration of a possible sale of its business, and you have agreed to discuss with us our possible interest in\nacquiring the Company As a condition to entering into such discussions, you and the Company have required that we agree to keep strictly confidential all information provided to us with respect to this matter.\nThis letter will confirm our agreement with you and the Company to retain in strict confidence all oral or written information furnished to us by or on behalf of the Company, its representatives or agents, whether\nfurnished before or after the date of this letter, and all notes, analyses, compilations, studies or other documents, whether prepared by us or others, which contain or otherwise reflect such information (collectively,\n"Confidential Information"). For purposes of this agreement, Confidential Information does not include information which (i) is or becomes generally available to the public other than as a result of disclosure by us,\n(ii) was available to us on a non-confidential basis prior to its disclosure by or on behalf of the Company, or (iii) becomes available to us on a non-confidential basis from a source other than the Company or its\nrepresentatives who is not bound by a confidentiality agreement with the Company, its representatives or its agents or otherwise prohibited from transmitting the information to us by a contractual, lega or fiduciary\nobligation.\nWe will use any Confidential Information only for the purpose of evaluating the proposed transaction and will not use it for any other purpose. Without the specific prior written consent of the Company or\nas\nexpressly otherwise permitted by the terms hereof, we also wil not disclose any Confidential Information to any other person or entity other than our directors, officers, employees and advisors who require such\nmaterial for the purpose of evaluating the proposed transaction (provided that such persons shall be informed by us of the confidential nature of the Confidential Information and of the fact that its use is subject\nto\nthe\nterms of this agreement). We agree to be jointly and severally liable for any breach of this agreement by any of those persons to whom we provide any Confidential Information and we agree to indemnify and hold\nharmless the Company from any damage, loss, cost or liability, including legal fees, arising out of or resulting from such breach.\nWithout the prior written consent of the Company, we and our representatives will not disclose to any person (i) the fact that the Confidential Information has been made available to us or that we have inspected\nany portion of the Confidential Information, (ii) the fact that any discussions or negotiations are taking place concerning a possible transaction, or (iii) any of the terms, conditions or other facts with respect to any\npossible transaction, including the status thereof, unless and only to the extent that such disclosure (after making reasonable efforts to avoid such disclosure and after advising and consulting with the Company about\nyour intention to make, and the proposed contents of, such\ndisclosure) is, in the opinion of our counsel, required to be made by us in order to satisfy our obligations under applicable United States securities laws.\nIn the event that we or our representatives are requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, Civil Investigative Demand or similar process) to disclose\nany of the Confidential Information, it is agreed that we or such representative, as the case may be, will provide the Company with prompt notice of such request(s) so that it may seek an appropriate protective order\nor other appropriate remedy and/or waive our compliance with the provisions of this Agreement In the event that such protective order or other remedy is not obtained, or that the Company grants a waiver hereunder,\nwe may furnish that portion (and only that portion) of the Confidential Information which, in the written opinion of our counsel, we are legally compelled to disclose and will exercise our best efforts to obtain reliable\nassurance that confidential treatment wil be accorded any Confidentia Information so furnished.\nWithout the prior written consent of the Company, (i) neither we nor those of our epresentatives who are aware of the Evaluation Material and/or the possibility of an Acquisition Transaction will initiate or cause to\nbe initiated any communications with any employee of the Company concerning the Confidential Information or any possible transaction and (ii) none of our directors, officers or employees who are aware of the\nConfidential Information and/or the possibility of a transaction will, for the two-year period from the date of this letter agreement, solicit or cause to be solicited the employment of or hire any employee of the Company\nwho has not been involuntarily terminated by the Company.\nWe agree that for a period of two years from the date of this agreement, unless such action shall have been specifically invited in writing by the Board of Directors of the Company, neither we nor any of our\naffiliates or Advisors will, directly or indirectly, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, participate in or cause or in any way assist any other person to effect or seek, offer or propose\n(whether publicly or otherwise) to effect or participate in (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the Company or any of its subsidiaries, (ii) any tender or exchange offer or\nmerger or other business combination involving the Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or\nany of its subsidiaries or (iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules promulgated by the Securities and Exchange Commission) or consents to vote any voting securities of the\nCompany, (b) form, join or in any way participate in a "group" (as defined under the Securities Exchange Act of 1934, as amended) with respect to any of the types of matters set forth in (a) above, (c) otherwise act,\nalone or in concert with others, to seek to control or influence the management, the Board of Directors or policies of the Company (d) take any action which might force the Company to make a public announcement\nregarding any of the types of matters set forth in (a) above, or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing. We also agree during any such period no to\nrequest the Company (or its directors, officers, employees, stockholders or agents), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence).\nWe acknowledge that we are aware, and will advise our representatives, that the federal securities laws prohibit any person who has received from an issuer material, non-public information from purchasing or\nselling securities of such issuer or from communicating such information to any other person under circumstances in which is reasonably foreseeable that such person is likely to purchase or sel such securities.\nIf we determine not to proceed with a transaction or upon the written request of the Company, we will promptly deliver to the Company all documents or other materials furnished by the Company to us or our\nrepresentatives constituting Confidential Information, together with all copies thereof. In the event of such request, all other documents or other matter constituting Confidential Information in our\n2\npossession or in the possession of our representatives wil be destroyed, with any such destruction confirmed by us in writing to the Company.\nWe acknowledge that a breach of our obligations hereunder will cause irreparable harm to the Company for which monetary damages are not adequate compensation. Therefore, without prejudice to the rights and\nremedies otherwise available to it, the Company shal be entitled to equitable relief by way of injunction if we or any of our representatives breach or threaten to breach any of the provisions of this agreement. For\nsuch purpose, we hereby consent to jurisdiction of the United States District Court for Oregon and waive any obligation the Company may have to post a bond or other security as a condition to obtaining such\ninjunctive or other equitable relief.\nAlthough we understand that the Company has endeavored to include in the Confidential Information information known to it which it believes to be relevant for the purpose of our investigation, we acknowledge\nthat\nneither you, the Company nor its agents or its representatives makes any representation or warranty as to the accuracy or completeness of the Confidential Information We agree that neither you, the Company nor\nits agents or its representatives shal have any liability to us or any of our representatives resulting from the use of the Confidential Information by us or such representatives. Only those representations and\nwarranties that may be made to us or our affiliates in a definitive written agreement for a proposed transaction, when, as and if executed and subject to such limitations and restrictions as maybe specified therein,\nshal have any legal effect, and we agree that if we determine to engage in a transaction such determination will be based solely on the terms of such written agreement and on our own investigation, analysis and\nassessment of the business to be acquired.\nWe acknowledge that the Company reserves the right to reject any and all offers to acquire the Company.\nThis letter constitutes the entire agreement of the parties with respect to the subject matter hereof. The agreements set forth herein may be modified or waived only by a separate writing signed by the Company\nand us expressly so modifying or waiving such agreements. Except as otherwise provided herein, the rights and obligations provided by this agreement shall expire on the third anniversary of the date first above\nwritten.\nWe further understand and agree that no failure or delay by the Company or McDonald in exercising any right, power or privilege hereunder shal operate as a waiver thereof, nor shal any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\nThis agreement shal be governed by and construed in accordance with the laws of the State of Oregon, without giving effect to the conflict of laws or provisions thereof. We agree and consent to personal\njurisdiction and service and venue in any federal or state court within the State of Oregon\n3\nhaving subject matter jurisdiction, for the purposes of any action, suit or proceeding arising out of or related to this agreement.\nIf you are in agreement with the foregoing, please sign and return one copy of this letter, which thereupon wil constitute our Agreement with respect to the subject matter hereof.\nVery truly yours,\n/s/ aj Trikha\nBy\nIs/ Kay Toolson\non behalf of\nMonaco Coach Corp.\nConfirmed and agreed to as of\nthe date first above written:\nMcDONALD INVESTMENTS INC.\n(Individually and as agent for SMC Corporation)\nBy: /s/ Ra Trikha\nName Raj Trikha\nTitle: Managing Director\n4	EXHIBIT (d)(6)\n[McDonald Investments Logo]\nMarch 21, 2001\nCONFIDENTIAL\nMcDonald Investments Inc.\nMcDonald Investment Center\n800 Superior Avenue\nCleveland, Ohio 44114\nMcDonald Investments Inc.,\nA KeyCorp Company\n800 Superior Avenue\nCleveland, Ohio 44114-2603\nTel: 216 443-2300\nLadies and Gentlemen:\nYou have advised us that you are acting on behalf of SMC Corporation (the "Company") in its consideration of a possible sale of its business, and you have agreed to discuss with us our possible interest in\nacquiring the Company. As a condition to entering into such discussions, you and the Company have required that we agree to keep strictly confidential all information provided to us with respect to this matter.\nThis letter will confirm our agreement with you and the Company to retain in strict confidence all oral or written information furnished to us by or on behalf of the Company, its representatives or agents, whether\nfurnished before or after the date of this letter, and all notes, analyses, compilations, studies or other documents, whether prepared by us or others, which contain or otherwise reflect such information (collectively,\n"Confidential Information") . For purposes of this agreement, Confidential Information does not include information which (i) is or becomes generally available to the public other than as a result of disclosure by us,\n(ii) was available to us on a non-confidential basis prior to its disclosure by or on behalf of the Company, or (iii) becomes available to us on a non-confidential basis from a source other than the Company or its\nrepresentatives who is not bound by a confidentiality agreement with the Company, its representatives or its agents or otherwise prohibited from transmitting the information to us by a contractual, legal or fiduciary\nobligation.\nWe will use any Confidential Information only for the purpose of evaluating the proposed transaction and will not use it for any other purpose. Without the specific prior written consent of the Company or as\nexpressly otherwise permitted by the terms hereof, we also will not disclose any Confidential Information to any other person or entity other than our directors, officers, employees and advisors who require such\nmaterial for the purpose of evaluating the proposed transaction (provided that such persons shall be informed by us of the confidential nature of the Confidential Information and of the fact that its use is subject to the\nterms of this agreement). We agree to be jointly and severally liable for any breach of this agreement by any of those persons to whom we provide any Confidential Information and we agree to indemnify and hold\nharmless the Company from any damage, loss, cost or liability, including legal fees, arising out of or resulting from such breach.\nWithout the prior written consent of the Company, we and our representatives will not disclose to any person (i) the fact that the Confidential Information has been made available to us or that we have inspected\nany portion of the Confidential Information, (ii) the fact that any discussions or negotiations are taking place concerning a possible transaction, or (iii) any of the terms, conditions or other facts with respect to any\npossible transaction, including the status thereof, unless and only to the extent that such disclosure (after making reasonable efforts to avoid such disclosure and after advising and consulting with the Company about\nyour intention to make, and the proposed contents of, such\ndisclosure) is, in the opinion of our counsel, required to be made by us in order to satisfy our obligations under applicable United States securities laws.\nIn the event that we or our representatives are requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, Civil Investigative Demand or similar process) to disclose\nany of the Confidential Information, it is agreed that we or such representative, as the case may be, will provide the Company with prompt notice of such request(s) so that it may seek an appropriate protective order\nor other appropriate remedy and/or waive our compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or that the Company grants a waiver hereunder,\nwe may furnish that portion (and only that portion) of the Confidential Information which, in the written opinion of our counsel, we are legally compelled to disclose and will exercise our best efforts to obtain reliable\nassurance that confidential treatment will be accorded any Confidential Information so furnished.\nWithout the prior written consent of the Company, (i) neither we nor those of our Representatives who are aware of the Evaluation Material and/or the possibility of an Acquisition Transaction will initiate or cause to\nbe initiated any communications with any employee of the Company concerning the Confidential Information or any possible transaction and (ii) none of our directors, officers or employees who are aware of the\nConfidential Information and/or the possibility of a transaction will, for the two-year period from the date of this letter agreement, solicit or cause to be solicited the employment of or hire any employee of the Company\nwho has not been involuntarily terminated by the Company.\nWe agree that, for a period of two years from the date of this agreement, unless such action shall have been specifically invited in writing by the Board of Directors of the Company, neither we nor any of our\naffiliates or Advisors will, directly or indirectly, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, participate in or cause or in any way assist any other person to effect or seek, offer or propose\n(whether publicly or otherwise) to effect or participate in (i) any acquisition of any securities (or beneficial ownership thereof) or assets of the Company or any of its subsidiaries, (ii) any tender or exchange offer or\nmerger or other business combination involving the Company or any of its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or\nany of its subsidiaries or (iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules promulgated by the Securities and Exchange Commission) or consents to vote any voting securities of the\nCompany, (b) form, join or in any way participate in a "group" (as defined under the Securities Exchange Act of 1934, as amended) with respect to any of the types of matters set forth in (a) above, (c) otherwise act,\nalone or in concert with others, to seek to control or influence the management, the Board of Directors or policies of the Company, (d) take any action which might force the Company to make a public announcement\nregarding any of the types of matters set forth in (a) above, or (e) enter into any discussions or arrangements with any third party with respect to any of the foregoing. We also agree during any such period not to\nrequest the Company (or its directors, officers, employees, stockholders or agents), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence).\nWe acknowledge that we are aware, and will advise our representatives, that the federal securities laws prohibit any person who has received from an issuer material, non-public information from purchasing or\nselling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nIf we determine not to proceed with a transaction or upon the written request of the Company, we will promptly deliver to the Company all documents or other materials furnished by the Company to us or our\nrepresentatives constituting Confidential Information, together with all copies thereof. In the event of such request, all other documents or other matter constituting Confidential Information in our\n2\npossession or in the possession of our representatives will be destroyed, with any such destruction confirmed by us in writing to the Company.\nWe acknowledge that a breach of our obligations hereunder will cause irreparable harm to the Company for which monetary damages are not adequate compensation. Therefore, without prejudice to the rights and\nremedies otherwise available to it, the Company shall be entitled to equitable relief by way of injunction if we or any of our representatives breach or threaten to breach any of the provisions of this agreement. For\nsuch purpose, we hereby consent to jurisdiction of the United States District Court for Oregon and waive any obligation the Company may have to post a bond or other security as a condition to obtaining such\ninjunctive or other equitable relief.\nAlthough we understand that the Company has endeavored to include in the Confidential Information information known to it which it believes to be relevant for the purpose of our investigation, we acknowledge that\nneither you, the Company nor its agents or its representatives makes any representation or warranty as to the accuracy or completeness of the Confidential Information. We agree that neither you, the Company nor\nits agents or its representatives shall have any liability to us or any of our representatives resulting from the use of the Confidential Information by us or such representatives. Only those representations and\nwarranties that may be made to us or our affiliates in a definitive written agreement for a proposed transaction, when, as and if executed and subject to such limitations and restrictions as maybe specified therein,\nshall have any legal effect, and we agree that if we determine to engage in a transaction such determination will be based solely on the terms of such written agreement and on our own investigation, analysis and\nassessment of the business to be acquired.\nWe acknowledge that the Company reserves the right to reject any and all offers to acquire the Company.\nThis letter constitutes the entire agreement of the parties with respect to the subject matter hereof. The agreements set forth herein may be modified or waived only by a separate writing signed by the Company\nand us expressly so modifying or waiving such agreements. Except as otherwise provided herein, the rights and obligations provided by this agreement shall expire on the third anniversary of the date first above\nwritten.\nWe further understand and agree that no failure or delay by the Company or McDonald in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\nThis agreement shall be governed by and construed in accordance with the laws of the State of Oregon, without giving effect to the conflict of laws or provisions thereof. We agree and consent to personal\njurisdiction and service and venue in any federal or state court within the State of Oregon\n3\nhaving subject matter jurisdiction, for the purposes of any action, suit or proceeding arising out of or related to this agreement.\nIf you are in agreement with the foregoing, please sign and return one copy of this letter, which thereupon will constitute our Agreement with respect to the subject matter hereof.\nVery truly yours,\n/s/ Raj Trikha\nBy /s/ Kay Toolson\non behalf of\nMonaco Coach Corp.\nConfirmed and agreed to as of\nthe date first above written:\nMcDONALD INVESTMENTS INC.\n(Individually and as agent for SMC Corporation)\nBy: /s/ Raj Trikha\nName: Raj Trikha\nTitle: Managing Director\n4
+8c8834694f713f0a65291e5bbd11d56f.pdf	effective_date jurisdiction party term	EXHIBIT B\nNON-DISCLOSURE AGREEMENT\nWHEREAS, this Non-Disclosure Agreement (“Agreement”) is entered into as of March 17, 2004 (“Effective Date”) between the NYMEX\nHoldings, Inc. (“NYMEX” or “Disclosing Party”) and Vincent Viola (“Advisor” or “Receiving Party”) (each of NYMEX and Advisor is hereinafter\nreferred to individually as a “Party” or collectively as the “Parties”) in connection with a business venture (“Arrangement”); and\nWHEREAS, NYMEX possess its own proprietary, financial, business, and marketing information relating to the Arrangement; and\nWHEREAS, in order to begin the discussions regarding the Arrangement NYMEX is willing to disclose to Advisor certain information and\nrelated materials that NYMEX considers to be confidential and secret and in which NYMEX has a proprietary interest, subject to the terms and\nconditions set forth below.\nNOW, THEREFORE, in consideration of the disclosure of any Confidential Information (as defined below) the covenants and premises\ncontained herein and other good and valuable consideration the sufficiency of which is hereby acknowledged, and intending to be legally bound\nhereby, the Parties hereto agree as follows:\n1. The following definitions shall apply for purposes of this Agreement:\n“Affiliate” means, when used with respect to any Person (as defined below), any other Person directly or indirectly controlling, controlled\nby or under common control with, such Person.\n“Agreement” means this Agreement, as amended from time to time.\n“Arrangement” means any business venture(s) discussed between the Parties.\n“Confidential Information” shall mean any and all of NYMEX’s confidential, secret or proprietary information, whether written or oral,\nincluding but not limited to, products or services, personnel, procedures of operation, business or marketing plans, business methods and\npractices, compilations of data or information concerning NYMEX’s business, financial data, business proposals, names of NYMEX’s suppliers\nand customers, possible business partners and their businesses and any other information not generally known to the public.\n“Disclosing Party” shall mean NYMEX.\n“Person” means a natural person, partnership (whether general or limited), limited liability company, trust, estate, association, corporation,\ncustodian, nominee or any other individual or entity in its own or any representative capacity.\n“Receiving Party” shall mean Advisor.\n“Representatives” means, with respect to either Party, such Party’s directors, officers, members, employees, agents or advisors (including,\nwithout limitation, attorneys, accountants and management consultants).\n2. All Confidential Information heretofore or hereinafter furnished to Receiving Party or to any of Receiving Party’s Representatives by\nDisclosing Party or by any of the Disclosing Party’s Representatives, shall be kept confidential by the Receiving Party. The Receiving Party warrants\nthat it will keep the Disclosing Party’s Confidential Information in no less confidential a manner than it keeps its own most confidential information\nbut in no event shall less than reasonable care be exercised to prevent unauthorized disclosure.\n3. Confidential Information disclosed hereunder shall at all times remain, as between the Parties, the property of the Disclosing Party. No license\nunder any trade secrets, copyrights, or other rights is granted by this Agreement or any disclosure of Confidential Information hereunder.\n9\n4. The Receiving Party shall receive, use and consider the Confidential Information solely and exclusively for the purpose of discussions\nregarding the Arrangement. Except to the extent the Receiving Party has prior written consent from the Disclosing Party, the Receiving Party shall\nnot duplicate in any manner or disclose to any third party the Confidential Information or any part thereof other than to its Representatives having a\nneed to know the Confidential Information in order to assist in the evaluation of the Arrangement or any other current or future business relationship\nbetween the Receiving Party and the Disclosing Party. In any instance in which the Receiving Party discloses the Confidential Information to its\nRepresentatives, the Receiving Party shall inform them of the confidential nature of the Confidential Information and of the terms of this\nConfidentiality Agreement. The Receiving Party shall be held responsible for any unauthorized use or disclosure of any Confidential Information,\nregardless of the nature thereof or the identity of the unauthorized user or disclosure thereof.\n5. The Receiving Party understands and agrees that disclosure of the Confidential Information may cause irreparable harm to the Disclosing\nParty, not compensable by money damages and therefore the Disclosing Party shall not have an adequate remedy at law in the event of an\nunauthorized use or disclosure of the Confidential Information in breach of the provisions of this Agreement. Accordingly, the Disclosing Party shall\nbe entitled to injunctive relief, in addition to any other rights and remedies which might be available to it under the law. The prevailing Party in any\nlitigation relating to or arising under this Agreement shall be entitled to reasonable attorneys’ fees, including fees on appeal.\n6. Upon the written request of the Disclosing Party, the Receiving Party will promptly return to the Disclosing Party or destroy all of the\nConfidential Information of the Disclosing Party (or such portion thereof as may be requested by the Disclosing Party) without retaining copies,\nsummaries or extracts thereof or based thereon.\n7. The Receiving Party further understands and acknowledges that the furnishing of the Confidential Information by the Disclosing Party does\nnot in and of itself constitute a representation of any kind by the Disclosing Party as to the accuracy or completeness of such information.\n8. The Receiving Party may disclose the Disclosing Party’s Confidential Information to a third person only if: (a) the Confidential Information\nis made public by the Disclosing Party; (b) the Confidential Information becomes generally known to the public, or was generally known to the\npublic, before the date on which this Agreement is executed; (c) the Disclosing Party waives its rights as provided in Article 14 below; (d) the\nReceiving Party obtains the Confidential Information independent of the Disclosing Party lawfully and without breach of this Agreement or\n(e) disclosure of the Confidential Information is required by a governmental authority, either by explicit order, statute or regulation; in which case the\nReceiving Party shall comply with its obligations under Section 9 below.\n9. If the Receiving Party is required by law, regulation, legal process or regulatory authority to disclose the Disclosing Party’s Confidential\nInformation, the Receiving Party (if legally permitted to do so) shall provide the Disclosing Party with prompt notice (in writing if practicable) of\nany such requirement so that the Disclosing Party may seek a protective order or other remedy and/or waive compliance with the provisions of this\nAgreement. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party grants a waiver hereunder, the\nReceiving Party may furnish that portion (and only that portion) of the Confidential Information which, in the opinion of its counsel, it is required by\nlaw, regulation, legal process or regulatory authority to disclose, without any liability to the Disclosing Party and with respect to which it agrees to\nexercise its best efforts to obtain reliable assurance that confidential treatment will be accorded. In any event, the Receiving Party will not oppose\naction by the Disclosing Party to obtain a protective order unless the Receiving Party reasonably determines that such order is adverse to its interests\nor other reliable assurance that confidential treatment will be accorded the Confidential Information.\n10. The Parties acknowledge and agree that the Disclosing Party may provide other persons with its own Confidential Information and nothing\ncontained herein shall act so as to prevent such Party from doing so.\n11. Receiving Party hereby agrees to indemnify and hold harmless the Disclosing Party and its Representatives from any damage, loss, cost or\nliability (including reasonable attorneys fees and legal fees, and\n10\nthe cost of enforcing this indemnification provision) arising out of or resulting from any breach by it of this Agreement.\n12. Each of the Parties agree that except for the matters specifically agreed to in this Agreement and as otherwise agreed in writing by the\nParties, none of the Parties or their respective Representatives will be under any legal obligation of any kind whatsoever with respect to providing\nany services and/or any discussion with regard to providing such services.\n13. Each Party acknowledges and agrees that it may allow other Persons to provide it any of the services to be provided (or proposed to be\nprovided) by the other Party. In addition, each Party may make available to any other Persons its own Confidential Information and nothing\ncontained herein shall act so as to prevent a Party from so doing.\n14. This Agreement may be modified or waived only by an express amendment and waiver in writing signed by the Parties. It is understood and\nagreed that no failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n15. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of\nthis Agreement, which shall remain in full force and effect.\n16. This Agreement will be governed by both the substantive and procedural laws of the State of New York, U.S.A., excluding its conflict of\nlaw rules and the UN Convention for the International Sale of Goods (CISG). Any action to enforce any provision of this Agreement may be brought\nonly in the Supreme Court, State of New York, County of New York or in the United States District Court for the Southern District of New York.\n17. NYMEX and Advisor shall be bound by the terms of this Agreement until a written release is given by NYMEX following the return or\ndestruction of all of the Confidential Information.\n18. Neither Party may use the name of the other in connection with any advertising or publicity materials or activities without the prior written\nconsent of the other Party.\n19. This Agreement shall become effective as of the date Confidential Information is first made available to any of the Parties to this\nAgreement.\n20. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and\nthe same agreement.\n11\nIN WITNESS WHEREOF, the Parties hereto have duly executed and delivered this Agreement as of Effective Date.\n/s/ VINCENT VIOLA\nVincent Viola\nNYMEX HOLDINGS, INC.\nBy: /s/ MITCHELL STEINHAUSE\nName: Mitchell Steinhause\nTitle: Chairman\n12	EXHIBIT B\nNON-DISCLOSURE AGREEMENT\nWHEREAS, this Non-Disclosure Agreement (“Agreement”) is entered into as of March 17, 2004 (“Effective Date”) between the NYMEX\nHoldings, Inc. (“NYMEX?” or “Disclosing Party”) and Vincent Viola (“Advisor” or “Receiving Party”) (each of NYMEX and Advisor is hereinafter\nreferred to individually as a “Party” or collectively as the “Parties”) in connection with a business venture (“Arrangement”); and\nWHEREAS, NYMEX possess its own proprietary, financial, business, and marketing information relating to the Arrangement; and\nWHEREAS, in order to begin the discussions regarding the Arrangement NYMEX is willing to disclose to Advisor certain information and\nrelated materials that NYMEX considers to be confidential and secret and in which NYMEX has a proprietary interest, subject to the terms and\nconditions set forth below.\nNOW, THEREFORE, in consideration of the disclosure of any Confidential Information (as defined below) the covenants and premises\ncontained herein and other good and valuable consideration the sufficiency of which is hereby acknowledged, and intending to be legally bound\nhereby, the Parties hereto agree as follows:\n1. The following definitions shall apply for purposes of this Agreement:\n“Affiliate” means, when used with respect to any Person (as defined below), any other Person directly or indirectly controlling, controlled\nby or under common control with, such Person.\n“Agreement” means this Agreement, as amended from time to time.\n“Arrangement” means any business venture(s) discussed between the Parties.\n“Confidential Information” shall mean any and all of NYMEX’s confidential, secret or proprietary information, whether written or oral,\nincluding but not limited to, products or services, personnel, procedures of operation, business or marketing plans, business methods and\npractices, compilations of data or information concerning NYMEX’s business, financial data, business proposals, names of NYMEX'’s suppliers\nand customers, possible business partners and their businesses and any other information not generally known to the public.\n“Disclosing Party” shall mean NYMEX.\n“Person” means a natural person, partnership (whether general or limited), limited liability company, trust, estate, association, corporation,\ncustodian, nominee or any other individual or entity in its own or any representative capacity.\n“Receiving Party” shall mean Advisor.\n“Representatives” means, with respect to either Party, such Party’s directors, officers, members, employees, agents or advisors (including,\nwithout limitation, attorneys, accountants and management consultants).\n2. All Confidential Information heretofore or hereinafter furnished to Receiving Party or to any of Receiving Party’s Representatives by\nDisclosing Party or by any of the Disclosing Party’s Representatives, shall be kept confidential by the Receiving Party. The Receiving Party warrants\nthat it will keep the Disclosing Party’s Confidential Information in no less confidential a manner than it keeps its own most confidential information\nbut in no event shall less than reasonable care be exercised to prevent unauthorized disclosure.\n3. Confidential Information disclosed hereunder shall at all times remain, as between the Parties, the property of the Disclosing Party. No license\nunder any trade secrets, copyrights, or other rights is granted by this Agreement or any disclosure of Confidential Information hereunder.\n9\n4. The Receiving Party shall receive, use and consider the Confidential Information solely and exclusively for the purpose of discussions\nregarding the Arrangement. Except to the extent the Receiving Party has prior written consent from the Disclosing Party, the Receiving Party shall\nnot duplicate in any manner or disclose to any third party the Confidential Information or any part thereof other than to its Representatives having a\nneed to know the Confidential Information in order to assist in the evaluation of the Arrangement or any other current or future business relationship\nbetween the Receiving Party and the Disclosing Party. In any instance in which the Receiving Party discloses the Confidential Information to its\nRepresentatives, the Receiving Party shall inform them of the confidential nature of the Confidential Information and of the terms of this\nConfidentiality Agreement. The Receiving Party shall be held responsible for any unauthorized use or disclosure of any Confidential Information,\nregardless of the nature thereof or the identity of the unauthorized user or disclosure thereof.\n5. The Receiving Party understands and agrees that disclosure of the Confidential Information may cause irreparable harm to the Disclosing\nParty, not compensable by money damages and therefore the Disclosing Party shall not have an adequate remedy at law in the event of an\nunauthorized use or disclosure of the Confidential Information in breach of the provisions of this Agreement. Accordingly, the Disclosing Party shall\nbe entitled to injunctive relief, in addition to any other rights and remedies which might be available to it under the law. The prevailing Party in any\nlitigation relating to or arising under this Agreement shall be entitled to reasonable attorneys’ fees, including fees on appeal.\n6. Upon the written request of the Disclosing Party, the Receiving Party will promptly return to the Disclosing Party or destroy all of the\nConfidential Information of the Disclosing Party (or such portion thereof as may be requested by the Disclosing Party) without retaining copies,\nsummaries or extracts thereof or based thereon.\n7. The Receiving Party further understands and acknowledges that the furnishing of the Confidential Information by the Disclosing Party does\nnot in and of itself constitute a representation of any kind by the Disclosing Party as to the accuracy or completeness of such information.\n8. The Receiving Party may disclose the Disclosing Party’s Confidential Information to a third person only if: (a) the Confidential Information\nis made public by the Disclosing Party; (b) the Confidential Information becomes generally known to the public, or was generally known to the\npublic, before the date on which this Agreement is executed; (c) the Disclosing Party waives its rights as provided in Article 14 below; (d) the\nReceiving Party obtains the Confidential Information independent of the Disclosing Party lawfully and without breach of this Agreement or\n(e) disclosure of the Confidential Information is required by a governmental authority, either by explicit order, statute or regulation; in which case the\nReceiving Party shall comply with its obligations under Section 9 below.\n9. If the Receiving Party is required by law, regulation, legal process or regulatory authority to disclose the Disclosing Party’s Confidential\nInformation, the Receiving Party (if legally permitted to do so) shall provide the Disclosing Party with prompt notice (in writing if practicable) of\nany such requirement so that the Disclosing Party may seek a protective order or other remedy and/or waive compliance with the provisions of this\nAgreement. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party grants a waiver hereunder, the\nReceiving Party may furnish that portion (and only that portion) of the Confidential Information which, in the opinion of its counsel, it is required by\nlaw, regulation, legal process or regulatory authority to disclose, without any liability to the Disclosing Party and with respect to which it agrees to\nexercise its best efforts to obtain reliable assurance that confidential treatment will be accorded. In any event, the Receiving Party will not oppose\naction by the Disclosing Party to obtain a protective order unless the Receiving Party reasonably determines that such order is adverse to its interests\nor other reliable assurance that confidential treatment will be accorded the Confidential Information.\n10. The Parties acknowledge and agree that the Disclosing Party may provide other persons with its own Confidential Information and nothing\ncontained herein shall act so as to prevent such Party from doing so.\n11. Receiving Party hereby agrees to indemnify and hold harmless the Disclosing Party and its Representatives from any damage, loss, cost or\nliability (including reasonable attorneys fees and legal fees, and\n10\nthe cost of enforcing this indemnification provision) arising out of or resulting from any breach by it of this Agreement.\n12. Each of the Parties agree that except for the matters specifically agreed to in this Agreement and as otherwise agreed in writing by the\nParties, none of the Parties or their respective Representatives will be under any legal obligation of any kind whatsoever with respect to providing\nany services and/or any discussion with regard to providing such services.\n13. Each Party acknowledges and agrees that it may allow other Persons to provide it any of the services to be provided (or proposed to be\nprovided) by the other Party. In addition, each Party may make available to any other Persons its own Confidential Information and nothing\ncontained herein shall act so as to prevent a Party from so doing.\n14. This Agreement may be modified or waived only by an express amendment and waiver in writing signed by the Parties. It is understood and\nagreed that no failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n15. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of\nthis Agreement, which shall remain in full force and effect.\n16. This Agreement will be governed by both the substantive and procedural laws of the State of New York, U.S.A., excluding its conflict of\nlaw rules and the UN Convention for the International Sale of Goods (CISG). Any action to enforce any provision of this Agreement may be brought\nonly in the Supreme Court, State of New York, County of New York or in the United States District Court for the Southern District of New York.\n17. NYMEX and Advisor shall be bound by the terms of this Agreement until a written release is given by NYMEX following the return or\ndestruction of all of the Confidential Information.\n18. Neither Party may use the name of the other in connection with any advertising or publicity materials or activities without the prior written\nconsent of the other Party.\n19. This Agreement shall become effective as of the date Confidential Information is first made available to any of the Parties to this\nAgreement.\n20. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and\nthe same agreement.\n11\nIN WITNESS WHEREOF, the Parties hereto have duly executed and delivered this Agreement as of Effective Date.\n/s/ VINCENT VIOLA\nVincent Viola\nNYMEX HOLDINGS, INC.\nBy: /s/ MITCHELL STEINHAUSE\nName: Mitchell Steinhause\nTitle: Chairman\n12	EXHIBIT B\nNON-DISCLOSURE AGREEMENT\nWHEREAS, this Non-Disclosure Agreement ("Agreement") is entered into as of March 17, 2004 ("Effective Date") between the NYMEX\nHoldings, Inc. ("NYMEX" or "Disclosing Party") and Vincent Viola ("Advisor" or "Receiving Party") (each of NYMEX and Advisor is hereinafter\nreferred to individually as a "Party" or collectively as the "Parties") in connection with a business venture ("Arrangement"); and\nWHEREAS, NYMEX possess its own proprietary, financial, business, and marketing information relating to the Arrangement; and\nWHEREAS, in order to begin the discussions regarding the Arrangement NYMEX is willing to disclose to Advisor certain information and\nrelated materials that NYMEX considers to be confidential and secret and in which NYMEX has a proprietary interest, subject to the terms and\nconditions set forth below.\nNOW, THEREFORE, in consideration of the disclosure of any Confidential Information (as defined below) the covenants and premises\ncontained herein and other good and valuable consideration the sufficiency of which is hereby acknowledged, and intending to be legally bound\nhereby, the Parties hereto agree as follows:\n1. The following definitions shall apply for purposes of this Agreement:\n"Affiliate" means, when used with respect to any Person (as defined below), any other Person directly or indirectly controlling, controlled\nby or under common control with, such Person.\n"Agreement' means this Agreement, as amended from time to time.\n"Arrangement" means any business venture(s) discussed between the Parties.\n"Confidential Information' shall mean any and all of NYMEX's confidential, secret or proprietary information, whether written or oral,\nincluding but not limited to, products or services, personnel, procedures of operation, business or marketing plans, business methods and\npractices, compilations of data or information concerning NYMEX's business, financial data, business proposals, names of NYMEX's suppliers\nand customers, possible business partners and their businesses and any other information not generally known to the public.\n"Disclosing Party" shall mean NYMEX.\n"Person" means a natural person, partnership (whether general or limited), limited liability company, trust, estate, association, corporation,\ncustodian, nominee or any other individual or entity in its own or any representative capacity.\n"Receiving Party" shall mean Advisor.\n"Representatives' means, with respect to either Party, such Party's directors, officers, members, employees, agents or advisors (including,\nwithout limitation, attorneys, accountants and management consultants).\n2. All Confidential Information heretofore or hereinafter furnished to Receiving Party or to any of Receiving Party's Representatives by\nDisclosing Party or by any of the Disclosing Party's Representatives, shall be kept confidential by the Receiving Party. The Receiving Party warrants\nthat it will keep the Disclosing Party's Confidential Information in no less confidential a manner than it keeps its own most confidential information\nbut in no event shall less than reasonable care be exercised to prevent unauthorized disclosure.\n3. Confidential Information disclosed hereunder shall at all times remain, as between the Parties, the property of the Disclosing Party. No license\nunder any trade secrets, copyrights, or other rights is granted by this Agreement or any disclosure of Confidential Information hereunder.\n9\n4. The Receiving Party shall receive, use and consider the Confidential Information solely and exclusively for the purpose of discussions\nregarding the Arrangement. Except to the extent the Receiving Party has prior written consent from the Disclosing Party, the Receiving Party shall\nnot duplicate in any manner or disclose to any third party the Confidential Information or any part thereof other than to its Representatives having a\nneed to know the Confidential Information in order to assist in the evaluation of the Arrangement or any other current or future business relationship\nbetween the Receiving Party and the Disclosing Party. In any instance in which the Receiving Party discloses the Confidential Information to\nits\nRepresentatives, the Receiving Party shall inform them of the confidential nature of the Confidential Information and of the terms of this\nConfidentiality Agreement. The Receiving Party shall be held responsible for any unauthorized use or disclosure of any Confidential Information,\nregardless of the nature thereof or the identity of the unauthorized user or disclosure thereof.\n5. The Receiving Party understands and agrees that disclosure of the Confidentia Information may cause irreparable harm to the Disclosing\nParty, not compensable by money damages and therefore the Disclosing Party shall not have an adequate remedy at law in the event of an\nunauthorized use or disclosure of the Confidential Information in breach of the provisions of this Agreement. Accordingly, the Disclosing Party shall\nbe entitled to injunctive relief, in addition to any other rights and remedies which might be available to it under the law. The prevailing Party in any\nlitigation relating to or arising under this Agreement shall be entitled to reasonable attorneys' fees, including fees on appeal.\n6. Upon the written request of the Disclosing Party, the Receiving Party will promptly return to the Disclosing Party or destroy all of the\nConfidential Information of the Disclosing Party (or such portion thereof as may be requested by the Disclosing Party) without retaining copies,\nsummaries or extracts thereof or based thereon.\n7. The Receiving Party further understands and acknowledges that the furnishing of the Confidential Information by the Disclosing Party does\nnot in and of itself constitute a representation of any kind by the Disclosing Party as to the accuracy or completeness of such information.\n8. The Receiving Party may disclose the Disclosing Party's Confidential Information to a third person only if: (a) the Confidential Information\nis made public by the Disclosing Party; (b) the Confidentia Information becomes generally known to the public, or was generally known to the\npublic, before the date on which this Agreement is executed; (c) the Disclosing Party waives its rights as provided in Article 14 below; (d) the\nReceiving Party obtains the Confidential Information independent of the Disclosing Party lawfully and without breach of this Agreement or\n(e) disclosure of the Confidential Information is required by a governmental authority, either by explicit order, statute or regulation; in which case\nthe\nReceiving Party shall comply with its obligations under Section 9 below.\n9. If the Receiving Party is required by law, regulation, legal process or regulatory authority to disclose the Disclosing Party's Confidential\nInformation, the Receiving Party (if legally permitted to do so) shall provide the Disclosing Party with prompt notice (in writing if practicable) of\nany such requirement so that the Disclosing Party may seek a protective order or other remedy and/or waive compliance with the provisions of this\nAgreement. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party grants a waiver hereunder, the\nReceiving Party may furnish that portion (and only that portion) of the Confidentia Information which, in the opinion of its counsel, it is required\nby\nlaw, regulation, legal process or regulatory authority to disclose, without any liability to the Disclosing Party and with respect to which it agrees to\nexercise its best efforts to obtain reliable assurance that confidential treatment will be accorded. In any event, the Receiving Party will not oppose\naction by the Disclosing Party to obtain a protective order unless the Receiving Party reasonably determines that such order is adverse to its interests\nor other reliable assurance that confidential treatment will be accorded the Confidential Information.\n10. The Parties acknowledge and agree that the Disclosing Party may provide other persons with its own Confidentia Information and nothing\ncontained herein shall act so as to prevent such Party from doing so.\n11. Receiving Party hereby agrees to indemnify and hold harmless the Disclosing Party and its Representatives from any damage, loss, cost or\nliability (including reasonable attorneys fees and legal fees, and\n10\nthe cost of enforcing this indemnification provision) arising out of or resulting from any breach by it of this Agreement.\n12. Each of the Parties agree that except for the matters specifically agreed to in this Agreement and as otherwise agreed in writing by the\nParties, none of the Parties or their respective Representatives will be under any legal obligation of any kind whatsoever with respect to providing\nany services and/or any discussion with regard to providing such services.\n13. Each Party acknowledges and agrees that it may allow other Persons to provide it any of the services to be provided (or proposed to be\nprovided) by the other Party. In addition, each Party may make available to any other Persons its own Confidential Information and nothing\ncontained herein shall act so as to prevent a Party from so doing.\n14. This Agreement may be modified or waived only by an express amendment and waiver in writing signed by the Parties. It is understood and\nagreed that no failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n15. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of\nthis Agreement, which shall remain in full force and effect.\n16. This Agreement will be governed by both the substantive and procedural laws of the State of New York, U.S.A., excluding its conflict of\nlaw rules and the UN Convention for the International Sale of Goods (CISG). Any action to enforce any provision of this Agreement may be brought\nonly in the Supreme Court, State of New York, County of New York or in the United States District Court for the Southern District of New York.\n17. NYMEX and Advisor shall be bound by the terms of this Agreement until a written release is given by NYMEX following the return or\ndestruction of all of the Confidential Information.\n18. Neither Party may use the name of the other in connection with any advertising or publicity materials or activities without the prior written\nconsent of the other Party.\n19. This Agreement shall become effective as of the date Confidential Information is first made available to any of the Parties to this\nAgreement.\n20. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and\nthe same agreement.\n11\nIN WITNESS WHEREOF, the Parties hereto have duly executed and delivered this Agreement as of Effective Date.\n/s/ VINCENT VIOLA\nVincent Viola\nNYMEX HOLDINGS, INC.\nBy: /s/ MITCHELL STEINHAUSE\nName: Mitchell Steinhause\nTitle: Chairman\n12	EXHIBIT B\nNON-DISCLOSURE AGREEMENT\nWHEREAS, this Non-Disclosure Agreement (“Agreement”) is entered into as of March 17, 2004 (“Effective Date”) between the NYMEX\nHoldings, Inc. (“NYMEX” or “Disclosing Party”) and Vincent Viola (“Advisor” or “Receiving Party”) (each of NYMEX and Advisor is hereinafter\nreferred to individually as a “Party” or collectively as the “Parties”) in connection with a business venture (“Arrangement”); and\nWHEREAS, NYMEX possess its own proprietary, financial, business, and marketing information relating to the Arrangement; and\nWHEREAS, in order to begin the discussions regarding the Arrangement NYMEX is willing to disclose to Advisor certain information and\nrelated materials that NYMEX considers to be confidential and secret and in which NYMEX has a proprietary interest, subject to the terms and\nconditions set forth below.\nNOW, THEREFORE, in consideration of the disclosure of any Confidential Information (as defined below) the covenants and premises\ncontained herein and other good and valuable consideration the sufficiency of which is hereby acknowledged, and intending to be legally bound\nhereby, the Parties hereto agree as follows:\n1. The following definitions shall apply for purposes of this Agreement:\n“Affiliate” means, when used with respect to any Person (as defined below), any other Person directly or indirectly controlling, controlled\nby or under common control with, such Person.\n“Agreement” means this Agreement, as amended from time to time.\n“Arrangement” means any business venture(s) discussed between the Parties.\n“Confidential Information” shall mean any and all of NYMEX’s confidential, secret or proprietary information, whether written or oral,\nincluding but not limited to, products or services, personnel, procedures of operation, business or marketing plans, business methods and\npractices, compilations of data or information concerning NYMEX’s business, financial data, business proposals, names of NYMEX’s suppliers\nand customers, possible business partners and their businesses and any other information not generally known to the public.\n“Disclosing Party” shall mean NYMEX.\n“Person” means a natural person, partnership (whether general or limited), limited liability company, trust, estate, association, corporation,\ncustodian, nominee or any other individual or entity in its own or any representative capacity.\n“Receiving Party” shall mean Advisor.\n“Representatives” means, with respect to either Party, such Party’s directors, officers, members, employees, agents or advisors (including,\nwithout limitation, attorneys, accountants and management consultants).\n2. All Confidential Information heretofore or hereinafter furnished to Receiving Party or to any of Receiving Party’s Representatives by\nDisclosing Party or by any of the Disclosing Party’s Representatives, shall be kept confidential by the Receiving Party. The Receiving Party warrants\nthat it will keep the Disclosing Party’s Confidential Information in no less confidential a manner than it keeps its own most confidential information\nbut in no event shall less than reasonable care be exercised to prevent unauthorized disclosure.\n3. Confidential Information disclosed hereunder shall at all times remain, as between the Parties, the property of the Disclosing Party. No license\nunder any trade secrets, copyrights, or other rights is granted by this Agreement or any disclosure of Confidential Information hereunder.\n9\n4. The Receiving Party shall receive, use and consider the Confidential Information solely and exclusively for the purpose of discussions\nregarding the Arrangement. Except to the extent the Receiving Party has prior written consent from the Disclosing Party, the Receiving Party shall\nnot duplicate in any manner or disclose to any third party the Confidential Information or any part thereof other than to its Representatives having a\nneed to know the Confidential Information in order to assist in the evaluation of the Arrangement or any other current or future business relationship\nbetween the Receiving Party and the Disclosing Party. In any instance in which the Receiving Party discloses the Confidential Information to its\nRepresentatives, the Receiving Party shall inform them of the confidential nature of the Confidential Information and of the terms of this\nConfidentiality Agreement. The Receiving Party shall be held responsible for any unauthorized use or disclosure of any Confidential Information,\nregardless of the nature thereof or the identity of the unauthorized user or disclosure thereof.\n5. The Receiving Party understands and agrees that disclosure of the Confidential Information may cause irreparable harm to the Disclosing\nParty, not compensable by money damages and therefore the Disclosing Party shall not have an adequate remedy at law in the event of an\nunauthorized use or disclosure of the Confidential Information in breach of the provisions of this Agreement. Accordingly, the Disclosing Party shall\nbe entitled to injunctive relief, in addition to any other rights and remedies which might be available to it under the law. The prevailing Party in any\nlitigation relating to or arising under this Agreement shall be entitled to reasonable attorneys’ fees, including fees on appeal.\n6. Upon the written request of the Disclosing Party, the Receiving Party will promptly return to the Disclosing Party or destroy all of the\nConfidential Information of the Disclosing Party (or such portion thereof as may be requested by the Disclosing Party) without retaining copies,\nsummaries or extracts thereof or based thereon.\n7. The Receiving Party further understands and acknowledges that the furnishing of the Confidential Information by the Disclosing Party does\nnot in and of itself constitute a representation of any kind by the Disclosing Party as to the accuracy or completeness of such information.\n8. The Receiving Party may disclose the Disclosing Party’s Confidential Information to a third person only if: (a) the Confidential Information\nis made public by the Disclosing Party; (b) the Confidential Information becomes generally known to the public, or was generally known to the\npublic, before the date on which this Agreement is executed; (c) the Disclosing Party waives its rights as provided in Article 14 below; (d) the\nReceiving Party obtains the Confidential Information independent of the Disclosing Party lawfully and without breach of this Agreement or\n(e) disclosure of the Confidential Information is required by a governmental authority, either by explicit order, statute or regulation; in which case the\nReceiving Party shall comply with its obligations under Section 9 below.\n9. If the Receiving Party is required by law, regulation, legal process or regulatory authority to disclose the Disclosing Party’s Confidential\nInformation, the Receiving Party (if legally permitted to do so) shall provide the Disclosing Party with prompt notice (in writing if practicable) of\nany such requirement so that the Disclosing Party may seek a protective order or other remedy and/or waive compliance with the provisions of this\nAgreement. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party grants a waiver hereunder, the\nReceiving Party may furnish that portion (and only that portion) of the Confidential Information which, in the opinion of its counsel, it is required by\nlaw, regulation, legal process or regulatory authority to disclose, without any liability to the Disclosing Party and with respect to which it agrees to\nexercise its best efforts to obtain reliable assurance that confidential treatment will be accorded. In any event, the Receiving Party will not oppose\naction by the Disclosing Party to obtain a protective order unless the Receiving Party reasonably determines that such order is adverse to its interests\nor other reliable assurance that confidential treatment will be accorded the Confidential Information.\n10. The Parties acknowledge and agree that the Disclosing Party may provide other persons with its own Confidential Information and nothing\ncontained herein shall act so as to prevent such Party from doing so.\n11. Receiving Party hereby agrees to indemnify and hold harmless the Disclosing Party and its Representatives from any damage, loss, cost or\nliability (including reasonable attorneys fees and legal fees, and\n10\nthe cost of enforcing this indemnification provision) arising out of or resulting from any breach by it of this Agreement.\n12. Each of the Parties agree that except for the matters specifically agreed to in this Agreement and as otherwise agreed in writing by the\nParties, none of the Parties or their respective Representatives will be under any legal obligation of any kind whatsoever with respect to providing\nany services and/or any discussion with regard to providing such services.\n13. Each Party acknowledges and agrees that it may allow other Persons to provide it any of the services to be provided (or proposed to be\nprovided) by the other Party. In addition, each Party may make available to any other Persons its own Confidential Information and nothing\ncontained herein shall act so as to prevent a Party from so doing.\n14. This Agreement may be modified or waived only by an express amendment and waiver in writing signed by the Parties. It is understood and\nagreed that no failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n15. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of\nthis Agreement, which shall remain in full force and effect.\n16. This Agreement will be governed by both the substantive and procedural laws of the State of New York, U.S.A., excluding its conflict of\nlaw rules and the UN Convention for the International Sale of Goods (CISG). Any action to enforce any provision of this Agreement may be brought\nonly in the Supreme Court, State of New York, County of New York or in the United States District Court for the Southern District of New York.\n17. NYMEX and Advisor shall be bound by the terms of this Agreement until a written release is given by NYMEX following the return or\ndestruction of all of the Confidential Information.\n18. Neither Party may use the name of the other in connection with any advertising or publicity materials or activities without the prior written\nconsent of the other Party.\n19. This Agreement shall become effective as of the date Confidential Information is first made available to any of the Parties to this\nAgreement.\n20. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and\nthe same agreement.\n11\nIN WITNESS WHEREOF, the Parties hereto have duly executed and delivered this Agreement as of Effective Date.\n/s/ VINCENT VIOLA\nVincent Viola\nNYMEX HOLDINGS, INC.\nBy: /s/ MITCHELL STEINHAUSE\nName: Mitchell Steinhause\nTitle: Chairman\n12
+8cd7e22efa54a11421d1291c5e7fa8f7.pdf	jurisdiction party	EXHIBIT B\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-Disclosure Agreement (the “Agreement”) is made by and between Creative Insurance Managers, Inc. ( “Agent”) and Sub-Contracting Concepts, Inc. ( “Customer”) and shall remain in force for the Term of\nthis Agreement.\n1.\nIn connection with the consideration of a possible engagement between the Customer and Agent, the Customer or its Representatives (as such term is defined herein) and Agent will furnish to each other, Confidential Information\n(as such term is defined herein) related to the business and operations of the Customer and Agent, respectively. As used herein, the term “Representatives” shall mean, the Customer’s directors, officers, employees, agents,\nconsultants, advisors, or other representatives including legal counsel, accountants and financial advisors.\n2.\nThe Customer and Agent acknowledge the confidential and proprietary nature of the Confidential Information, agree to hold and keep the same as provided in this Agreement, and otherwise agree to each and every restriction and\nobligation in this Agreement.\n3.\nAs used in this Agreement, the term “Confidential Information” means and includes any and all:\na.\nTrade secrets concerning the business and affairs of either party, product specifications, data, know-how, formulae, compositions, processes, designs, sketches, photographs, graphs, drawings, samples, inventions\nand ideas, past current, and planned research and development, current and planned manufacturing or distribution methods and processes, current and anticipated customer requirements, price lists, market\nstudies, business plans, computer software and programs, structures and architectures (and related processes, formulae, composition, improvements, devices, know-how, inventions, discoveries, concepts, ideas,\ndesigns, methods and information), and any other information, however documented, that is a trade secret within the meaning of Georgia law;\nb.\nnon-public personal information concerning the Customer’s or Agent’s customers, which information shall include, without limitation, non-public personal financial information and non-public health\ninformation concerning such Customer customers; and\nc.\ninformation concerning the business and affairs of each party (which includes historical financial statements, financial projections and budgets, historical and projected sales, capital spending budgets and plans,\nthe names and backgrounds of key personnel, personnel training techniques and materials, however documented, that has been or may hereafter be provided or shown to the receiving party or its Representatives\nor is otherwise obtained from review of documents or property or discussion with the disclosing party or its Representatives by the receiving party or its Representatives (including current or prospective\nfinancing sources) irrespective of the form of the communication, and also includes all notes, analyses, compilations, studies, summaries, and other material prepared by the receiving party or its Representatives\ncontaining or based, in whole or in part, on any information included in the foregoing. In the case of trade secrets, both parties hereby waive any requirement that the party disclosing the trade secret submit proof\nof the economic value of any trade secret or post a bond or other security\n4.\nThe Confidential Information is being furnished without liability on the part of either party or any of their respective Representatives. This Agreement creates no obligation on the part of either party to furnish any information to\nthe other party. However, the actual dissemination of Confidential Information pursuant to the terms of this Agreement shall serve as consideration for the covenants made hereunder.\n9\n5.\nEach party agrees on its own behalf, and agrees to cause its Representatives:\na.\nto maintain the confidentiality of the Confidential Information:\nb.\nnot to use or allow the use of any portion of such Confidential Information for any purpose (other than evaluating a possible engagement between the parties, brokering the procurement of any Product for the\nCustomer or the customer’s client or performing any of the Services provided for by the Schedule(s).\nc.\nnot to disclose or allow disclosure to others of any portion of the Confidential Information provided to it, except to those of its Representatives who need to know such Confidential Information for the purpose of\nevaluating a possible engagement between the parties and who are made aware of, and who agree to be bound by, the terms of this Agreement (collectively, the “Permitted Representatives”) and then only for the\npurpose described in clause (b) above;\nd.\nnot to disclose or allow disclosure to persons other than the Permitted Representatives that Confidential Information (the term “person” to be broadly interpreted to include, without limitation, any individual,\ncorporation, estate, group, limited liability company, partnership, trust or other entity);\ne.\nnot to make or allow to be made copies of or otherwise reproduce the Confidential Information provided to it, except as reasonably required in connection with evaluating a possible engagement between the\nparties, brokering the procurement of any Product, or performing any of the Services provided for by the Schedule(s) or as permitted with the specific prior written consent of the disclosing party; and\nf.\nwithin ten (10) business days of a request by the disclosing party, to destroy all of the Confidential Information provided to the receiving party in written form, including all copies thereof and any works derived\nthere from or containing Confidential Information and to certify to such destruction, such certification, at the request of the disclosing party, specifically listing all such Confidential Information destroyed.\n6.\nAll of the foregoing obligations and restrictions do not apply to that part of the Confidential Information that the receiving party demonstrates (a) was or becomes generally available to the public other than as a result of a\ndisclosure by the receiving party or the receiving party’s Representatives or (b) was available, or becomes available, to the receiving party on a non-confidential basis prior to its disclosure to the receiving party by the disclosing\nparty or a disclosing party Representative, but only if (i) the source of such information is not bound by the Confidentiality Agreement with disclosing party or is not otherwise prohibited from transmitting the information to the\nreceiving party or the receiving party’s Representatives by a contractual, legal, fiduciary, or other obligation and (ii) the receiving party provides disclosing party with written notice of such prior possession either (A) prior to the\nexecution and delivery of this Agreement or (B) if the receiving party later becomes aware of (through disclosure to the receiving party or otherwise through the receiving party’s work on the engagement) any aspect of the\nConfidential Information of which the receiving party had prior possession, promptly upon the receiving party becoming aware of such aspect.\n10\n7.\nIn the event that the parties or their respective Representatives, is, in the opinion of legal counsel, required by legal process, law or regulation to disclose any portion of the Confidential Information provided to it, such party shall\nprovide the other party with prompt written notice of such requirement as far in advance of the proposed disclosure as possible so that the other party (at its expense) may either seek a protective order or other appropriate remedy\nwhich is necessary to protect its interests or waive compliance with the non-disclosure provisions of this Agreement to the extent necessary (provided that one or the other be done). Each of the parties and their respective\nRepresentatives shall cooperate in all reasonable respects with each other in seeking to prevent or limit disclosure and, in the event a protective order or other remedy is not obtained, the party being required to make disclosures\nwill limit the disclosure to the information actually required to be disclosed, provided that such party shall not be required to incur any out-of-pocket costs in complying with this paragraph.\n8.\nEach of the parties shall indemnify and hold the other party and its Representatives harmless from any damages, loss, cost, or liability (including reasonable legal fees and the cost of enforcing this indemnity) arising out of or\nresulting from any unauthorized use or disclosure by the receiving party or its Representatives of the Confidential Information or other violation of this Agreement. In addition, because an award of money damages (whether\npursuant to the foregoing sentence or otherwise) would be inadequate for any breach of this Agreement by the receiving party or its Representatives and any such breach would cause the disclosing party irreparable harm, the\nreceiving party also agrees that, in the event of any breach or threatened breach of this Agreement, the disclosing party will also be entitled, without the requirement of posting a bond or other security, to equitable, relief, including\ninjunctive relief and specific performance. Such remedies will not be the exclusive remedies for any breach of this Agreement but will be in addition to all other remedies available at law or in equity to the disclosing party.\n9.\nThe invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect. If any of the covenants or\nprovision of this Agreement are determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the parties contemplate that the court making such determination shall reduce such extent, duration, scope\nor other provision and enforce them in their reduced form for all purposes contemplated by this Agreement.\n10.\nThis Confidentiality Letter Agreement shall be governed by the laws of the State of Georgia without regard to conflicts of laws or principles.\nIN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date first written above.\nAGENT:\nCREATIVE INSURANCE MANAGERS, INC.\n/s/ Phillip A. Williams\nPhillip A. Williams, President\nCUSTOMER:\nSUB-CONTRACTING CONCEPTS, INC .\n/s/ Steven Rothman\nSteven Rothman, CEO, Coach Industries Group, Inc.\n11	EXHIBIT B\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-Disclosure Agreement (the "Agreement") is made by and between Creative Insurance Managers, Inc. (”A gent”) and Sub-Contracting Concepts, Inc. ("Customer”) and shall remain in force for the Term of\nthis A greement.\n1. In connection with the consideration of a possible engagement between the Customer and Agent, the Customer or its Represenmtives (as such term is defined herein) and Agent will furnish to each other, Confidential Information\n(as such term is defined herein) related to the business and operations of the Customer and Agent, respectively. As used herein, the term ”Represenmtives" shall mean, the Customer“ 5 directors, officers, employees, agents,\nconsultants, advisors, or other representatives including legal counsel, accountants and financial advisors.\n2. The Customer and Agent acknowledge the confidential and proprietary nature of the Confidential Information, agree to hold and keep the same as provided in this Agreement, and otherwise agree to each and every restriction and\nobligation in this Agreement.\n3. As used in this Agreement, the term "Confidential Information" means and includes any and all:\na. Trade secrets concerning the business and affairs of either party, product specifications, dam, know-how, formulae, compositions, processes, designs, sketches, photographs, graphs, drawings, samples, inventions\nand ideas, past current, and planned research and development, current and planned manufacturing or distribution methods and processes, current and anticipated customer requirements, price lists, market\nstudies, business plans, computer software and programs, structures and architectures (and related processes, formulae, composition, improvements, devices, know-how, inventions, discoveries, concepts, ideas,\ndesigns, methods and information), and any other information, however documented, that is a trade secret within the meaning of Georgia law;\nb. non-public personal information concerning the Customer“ 5 orAgent's customers, which information shall include, without limitation, non-public personal financial information and non-public health\ninformation concerning such Customer customers; and\nc. information concerning the business and affairs of each party (which includes historical financial statements, financial projections and budgets, historical and projected sales, capital spending budgets and plans,\nthe names and backgrounds of key personnel, personnel training techniques and materials, however documented, that has been or may hereafter be provided or shown to the receiving party or its Representatives\nor is otherwise obtained from review of documents or property or discussion with the disclosing party or its Representatives by the receiving party or its Representatives (including current or prospective\nfinancing sources) irrespective of the form of the communication, and also includes all notes, analyses, compilations, studies, summaries, and other material prepared by the receiving party or its Representatives\ncontaining or based, in whole or in part, on any information included in the foregoing. In the case of trade secrets, both parties hereby waive any requirement that the party disclosing the trade secret submit proof\nof the economic value of any trade secret or post a bond or other security\n4. The Confidential Information is being furnished without liability on the part of either party or any of their respective Representatives. This Agreement creates no obligation on the part of either party to furnish any information to\nthe other party. However, the actual dissemination of Confidential Information pursuant to the terms of this Agreement shall serve as consideration for the covenants made hereunder.\n5‘ Each party agrees on its own behalf, and agrees to cause its Represenmtives:\na. to maintain the confidentiality of the Confidential Information:\nb, not to use or allow the use of any portion of such Confidential Information for any purpose (other than evaluating a possible engagement between the parties, brokering the procurement of any Product for the\nCustomer or the customer“ s client or performing any of the Services provided for by the Schedule(s).\nc. not to disclose or allow disclosure to others of any portion of the Confidential Information provided to it, except to those of its Representatives who need to know such Confidential Information for the purpose of\nevaluating a possible engagement between the parties and who are made aware of, and who agree to be bound by, the terms of this Agreement (collectively, the "Permitted Represenmtives”) and then only for the\npurpose described in clause (b) above;\nd, not to disclose or allow disclosure to persons other than the Permitted Represenmtives that Confidential Information (the term “person" to be broadly interpreted to include, without limitation, any individual,\ncorporation, estate, group, limited liability company, partnership, trust or other entity);\ne. not to make or allow to be made copies of or otherwise reproduce the Confidential Information provided to it, except as reasonably required in connection with evaluating a possible engagement between the\nparties, brokering the procurement of any Product, or performing any of the Services provided for by the Schedule(s) or as permitted with the specific prior written consent of the disclosing party; and\nfl within ten (10) business days of a request by the disclosing party, to destroy all of the Confidential Information provided to the receiving party in written form, including all copies thereof and any works derived\nthere from or containing Confidential Information and to certify to such destruction, such certification, at the request of the disclosing party, specifically listing all such Confidential Information destioyedl\n6‘ All of the foregoing obligations and restiictions do not apply to that part of the Confidential Information that the receiving party demonstrates (a) was or becomes generally available to the public other than as a result of a\ndisclosure by the receiving party or the receiving party’s Represenmtives or (b) was available, or becomes available, to the receiving party on a non-confidential basis prior to its disclosure to the receiving party by the disclosing\nparty or a disclosing party Representative, but only if (i) the source of such information is not bound by the Confidentiality Agreement with disclosing party or is not otherwise prohibited from transmitting the information to the\nreceiving party or the receiving party’s Representatives by a contractual, legal, fiduciary, or other obligation and (ii) the receiving party provides disclosing party with written notice of such prior possession either (A) priorto the\nexecution and delivery of this Agreement or (B) if the receiving party later becomes aware of (through disclosure to the receiving party or otherwise through the receiving party’s work on the engagement) any aspect of the\nConfidential Information of which the receiving party had prior possession, promptly upon the receiving party becoming aware of such aspect\n10\n—\n7. In the event that the parties or their respective Representatives, is, in the opinion of legal counsel, required by legal process, law or regulation to disclose any portion of the Confidential Information provided to it, such party shall\nprovide the other party with prompt written notice of such requirement as far in advance of the proposed disclosure as possible so that the other party (at its expense) may either seek a protective order or other appropriate remedy\nwhich is necessary to protect its interests or waive compliance with the non-disclosure provisions of this Agreement to the extent necessary (provided that one or the other he done). Each of the parties and their respective\nRepresentatives shall cooperate in all reasonable respects with each other in seeking to prevent orlimit disclosure and, in the event a protective order or other remedy is not obmined, the party being required to make disclosures\nwill limit the disclosure to the information actually required to be disclosed, provided that such party shall not be required to incur any out-of-pocket costs in complying with this paragraph\n8. Each of the parties shall indemnify and hold the other party and its Represenmtives harmless from any damages, loss, cost, or liability (including reasonable legal fees and the cost of enforcing this indemnity) arising out of or\nresulting from any unauthorized use or disclosure by the receiving party or its Representatives of the Confidential Information or other violation of this Agreement. In addition, because an award of money damages (whether\npursuant to the foregoing sentence or otherwise) would be inadequate for any breach of this Agreement by the receiving party or its Representatives and any such breach would cause the disclosing party irreparable harm, the\nreceiving party also agrees that, in the event of any breach or threatened breach of this Agreement, the disclosing party will also be entitled, without the requirement of posting a bond or other security, to equitable, relief, including\ninjunctive relief and specific performance. Such remedies will not be the exclusive remedies for any breach of this Agreement but will be in addition to all other remedies available at law or in equity to the disclosing party.\n9. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect If any of the covenants or\nprovision of this Agreement are determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the parties contemplate that the court making such determination shall reduce such extent, duration, scope\nor other provision and enforce them in their reduced form for all purposes contemplated by this Agreement.\n10. This Confidentiality LetterAgreement shall be governed by the laws of the Smte of Georgia without regard to conflicts of laws or principles.\nIN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date first written above.\nAGENT:\nCREATIVE INSURANCE MANAGERS, INCI\n/s/ Phillip A. Williams\nW\nCUSTOMER:\nSUB-CONTRACTING CONCEPTS, INCI\n/s/ Steven Rothman\nW\n11	EXHIBIT B\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-Disclosure greement (the 'Agreement") is made by and between Creative Insurance Managers, Inc. ("Agent") and Sub-Contracting Concepts, Inc ("Customer") and shall remain in force for the Term of\nthis Agreement.\n1.\nIn connection with the consideration of a possible engagement between the Customer and Agent, the Customer or its Representatives (as such term is defined herein) and A gent will furnish to each other, Confidential Information\n(as such term is defined herein) related to the business and operations of the Customer and Agent, respectively. As used herein, the term "Representatives" shall mean, the Customer's directors, officers employees, agents,\nconsultants, advisors, or other representatives including legal counsel, accountants and financial advisors.\n2.\nThe Customer and gent acknowledge the confidential and proprietary nature of the Confidential Information, agree to hold and keep the same as provided in this Agreement, and otherwise agree to each and every restriction\nand\nobligation in this Agreement.\n3.\nAs used in this Agreement, the term "Confidential Information" means and includes any and all:\na.\nTrade secrets concering the business and affairs of either party, product specifications, data, know-how formulae, compositions, processes, designs, sketches, photographs, graphs, drawings, samples, inventions\nand ideas, past current and planned research and development, current and planned manufacturing or distribution methods and processes, current and anticipated customer requirements, price lists, market\nstudies, business plans, computer software and programs, structures and architectures (and related processes, formulae composition, improvements, devices, know-how inventions, discoveries, concepts, ideas,\ndesigns, methods and inforation), and any other information, however documented, that is a trade secret within the meaning of Georgia law;\nb.\nnon-public personal information concerning the Customer's or Agent's customers, which information shall include without limitation, non-public personal financial information and non-public health\ninformation concerning such Customer customers; and\nc.\ninformation concerning the business and affairs of each party (which includes historical financial statements, financia projections and budgets, historical and projected sales, capital spending budgets and plans,\nthe names and backgrounds of key personnel, personnel training techniques and materials, however documented, that has been or may hereafter be provided or shown to the receiving party or its Representatives\nor is otherwise obtained from review of documents or property or discussion with the disclosing party or its Representatives by the receiving party or its Representatives (including current or prospective\nfinancing sources) irrespective of the form of the communication, and also includes all notes, analyses, compilations, studies, summaries and other material prepared by the receiving party or its Representatives\ncontaining or based in whole or in part, on any information included in the foregoing In the case of trade secrets, both parties hereby waive any requirement that the party disclosing the trade secret submit proof\nof the economic value of any trade secret or post a bond or other security\n4.\nThe Confidential Information is being fumished without liability on the part of either party or any of their respective Representatives. This A greemen creates no obligation on the part of either party to furnish any information to\nthe other party However, the actual dissemination of Confidential Information pursuant to the terms of this A Agreement shall serve as consideration for the covenants made hereunder.\n9\n5.\nEach party agrees on its own behalf, and agrees to cause its Representatives:\na.\nto maintain the confidentiality of the Confidential Information:\nb.\nnot to use or allow the use of any portion of such Confidential Information for any purpose (other than evaluating a possible engagement between the parties, brokering the procurement of any Product for the\nCustomer or the customer's client or performing any of the Services provided for by the Schedule(s).\nC.\nnot to disclose or allow disclosure to others of any portion of the Confidential Information provided to it, except to those of its Representatives who need to know such Confidential Information for the purpose of\nevaluating a possible engagement between the parties and who are made aware of, and who agree to be bound by, the terms of this A greement (collectively, the "Permitted Representatives") and then only for the\npurpose described in clause (b) above;\nd.\nnot to disclose or allow disclosure to persons other than the Permitted Representatives that Confidential Information (the term "person" to be broadly interpreted to include without limitation, any individual\ncorporation, estate group, limited liability company, partnership, trust or other entity);\ne.\nnot to make or allow to be made copies of or otherwise reproduce the Confidential Information provided to it, except as reasonably required in connection with evaluating a possible engagement between the\nparties, brokering the procurement of any Product, or performing any of the Services provided for by the Schedule(s or as permitted with the specific prior written consent of the disclosing party; and\nf.\nwithin ten (10) business days of a request by the disclosing party, to destroy all of the Confidential Information provided to the receiving party in written form, including all copies thereof and any works derived\nthere from or containing Confidential Information and to certify to such destruction, such certification, at the request of the disclosing party, specifically listing all such Confidentia Information destroyed.\n6.\nAl of the foregoing obligations and restrictions do not apply to that part of the Confidential Information that the receiving party demonstrates (a) was or becomes generally available to the public other than as a result of a\ndisclosure by the receiving party or the receiving party's Representatives or (b) was available, or becomes available to the receiving party on a non-confidential basis prior to its disclosure to the receiving party by the disclosing\nparty or a disclosing party Representative, but only if (i) the source of such information is not bound by the Confidentiality Agreement with disclosing party or is not otherwise prohibited from transmitting the information to the\nreceiving party or the receiving party's Representatives by a contractual legal fiduciary, or other obligation and (ii) the receiving party provides disclosing party with written notice of such prior possession either (A) prior to the\nexecution and delivery of this A greement or (B) if the receiving party later becomes aware of (through disclosure to the receiving party or otherwise through the receiving party's work on the engagement) any aspect\nof\nthe\nConfidential Information of which the receiving party had prior possession, promptly upon the receiving party becoming aware of such aspect.\n10\n7.\nIn the event that the parties or their respective Representatives, is, in the opinion of legal counsel, required by legal process, law or regulation to disclose any portion of the Confidential Information provided to it, such party shall\nprovide the other party with prompt written notice of such requirement as far in advance of the proposed disclosure as possible so that the other party (at its expense) may either seek a protective order or other appropriate remedy\nwhich is necessary to protect its interests or waive compliance with the non-disclosure provisions of this Agreement to the extent necessary (provided that one or the other be done). Each of the parties and their respective\nRepresentatives shall cooperate in all reasonable respects with each other in seeking to prevent or limit disclosure and, in the event a protective order or other remedy is not obtained, the party being required to make disclosures\nwill limit the disclosure to the information actually required to be disclosed, provided that such party shall not be required to incur any out-of-pocket costs in complying with this paragraph\n8.\nEach of the parties shall indemnify and hold the other party and its Representatives harmless from any damages, loss, cost, or liability (including reasonable legal fees and the cost of enforcing this indemnity) arising out of or\nresulting from any unauthorized use or disclosure by the receiving party or its Representatives of the Confidential Information or other violation of this Agreement. In addition, because an award of money damages (whether\npursuant to the foregoing sentence or otherwise) would be inadequate for any breach of this Agreement by the receiving party or its Representatives and any such breach would cause the disclosing party irreparable harm, the\nreceiving party also agrees that in the event of any breach or threatened breach of this Agreement, the disclosing party will also be entitled, without the requirement of posting a bond or other security, to equitable, relief, including\ninjunctive relief and specific performance Such remedies will not be the exclusive remedies for any breach of this Agreement but will be in addition to all other remedies available at law or in equity to the disclosing party.\n9.\nThe invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement which shall remain in full force and effect. If any of the covenants\nor\nprovision of this A greement are determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the parties contemplate that the court making such determination shall reduce such extent, duration scope\nor other provision and enforce them in their reduced form for all purposes contemplated by this Agreement\n10.\nThis Confidentiality Letter Agreement shall be governed by the laws of the State of Georgia without regard to conflicts of laws or principles.\nIN WITNESS WHEREOF, the parties have executed and delivered this A greement as of the date first written above.\nAGENT:\nCREATIVE INSURANCE MANAGERS, INC.\n/s/ Phillip A. Williams\nPhimnp A W llams, President\nCUSTOMER:\nSUB-CONTRACTING CONCEPTS, INC.\n/s/ Steven Rothman\nSteven Rothman, CEU, coach Industnes Group, Inc.\n11	EXHIBIT B\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-Disclosure Agreement (the “Agreement”) is made by and between Creative Insurance Managers, Inc. ( “Agent”) and Sub-Contracting Concepts, Inc. ( “Customer”) and shall remain in force for the Term of\nthis Agreement.\n1.\nIn connection with the consideration of a possible engagement between the Customer and Agent, the Customer or its Representatives (as such term is defined herein) and Agent will furnish to each other, Confidential Information\n(as such term is defined herein) related to the business and operations of the Customer and Agent, respectively. As used herein, the term “Representatives” shall mean, the Customer’s directors, officers, employees, agents,\nconsultants, advisors, or other representatives including legal counsel, accountants and financial advisors.\n2.\nThe Customer and Agent acknowledge the confidential and proprietary nature of the Confidential Information, agree to hold and keep the same as provided in this Agreement, and otherwise agree to each and every restriction and\nobligation in this Agreement.\n3.\nAs used in this Agreement, the term “Confidential Information” means and includes any and all:\na.\nTrade secrets concerning the business and affairs of either party, product specifications, data, know-how, formulae, compositions, processes, designs, sketches, photographs, graphs, drawings, samples, inventions\nand ideas, past current, and planned research and development, current and planned manufacturing or distribution methods and processes, current and anticipated customer requirements, price lists, market\nstudies, business plans, computer software and programs, structures and architectures (and related processes, formulae, composition, improvements, devices, know-how, inventions, discoveries, concepts, ideas,\ndesigns, methods and information), and any other information, however documented, that is a trade secret within the meaning of Georgia law;\nb.\nnon-public personal information concerning the Customer’s or Agent’s customers, which information shall include, without limitation, non-public personal financial information and non-public health\ninformation concerning such Customer customers; and\nc.\ninformation concerning the business and affairs of each party (which includes historical financial statements, financial projections and budgets, historical and projected sales, capital spending budgets and plans,\nthe names and backgrounds of key personnel, personnel training techniques and materials, however documented, that has been or may hereafter be provided or shown to the receiving party or its Representatives\nor is otherwise obtained from review of documents or property or discussion with the disclosing party or its Representatives by the receiving party or its Representatives (including current or prospective\nfinancing sources) irrespective of the form of the communication, and also includes all notes, analyses, compilations, studies, summaries, and other material prepared by the receiving party or its Representatives\ncontaining or based, in whole or in part, on any information included in the foregoing. In the case of trade secrets, both parties hereby waive any requirement that the party disclosing the trade secret submit proof\nof the economic value of any trade secret or post a bond or other security\n4.\nThe Confidential Information is being furnished without liability on the part of either party or any of their respective Representatives. This Agreement creates no obligation on the part of either party to furnish any information to\nthe other party. However, the actual dissemination of Confidential Information pursuant to the terms of this Agreement shall serve as consideration for the covenants made hereunder.\n9\n5.\nEach party agrees on its own behalf, and agrees to cause its Representatives:\na.\nto maintain the confidentiality of the Confidential Information:\nb.\nnot to use or allow the use of any portion of such Confidential Information for any purpose (other than evaluating a possible engagement between the parties, brokering the procurement of any Product for the\nCustomer or the customer’s client or performing any of the Services provided for by the Schedule(s).\nc.\nnot to disclose or allow disclosure to others of any portion of the Confidential Information provided to it, except to those of its Representatives who need to know such Confidential Information for the purpose of\nevaluating a possible engagement between the parties and who are made aware of, and who agree to be bound by, the terms of this Agreement (collectively, the “Permitted Representatives”) and then only for the\npurpose described in clause (b) above;\nd.\nnot to disclose or allow disclosure to persons other than the Permitted Representatives that Confidential Information (the term “person” to be broadly interpreted to include, without limitation, any individual,\ncorporation, estate, group, limited liability company, partnership, trust or other entity);\ne.\nnot to make or allow to be made copies of or otherwise reproduce the Confidential Information provided to it, except as reasonably required in connection with evaluating a possible engagement between the\nparties, brokering the procurement of any Product, or performing any of the Services provided for by the Schedule(s) or as permitted with the specific prior written consent of the disclosing party; and\nf.\nwithin ten (10) business days of a request by the disclosing party, to destroy all of the Confidential Information provided to the receiving party in written form, including all copies thereof and any works derived\nthere from or containing Confidential Information and to certify to such destruction, such certification, at the request of the disclosing party, specifically listing all such Confidential Information destroyed.\n6.\nAll of the foregoing obligations and restrictions do not apply to that part of the Confidential Information that the receiving party demonstrates (a) was or becomes generally available to the public other than as a result of a\ndisclosure by the receiving party or the receiving party’s Representatives or (b) was available, or becomes available, to the receiving party on a non-confidential basis prior to its disclosure to the receiving party by the disclosing\nparty or a disclosing party Representative, but only if (i) the source of such information is not bound by the Confidentiality Agreement with disclosing party or is not otherwise prohibited from transmitting the information to the\nreceiving party or the receiving party’s Representatives by a contractual, legal, fiduciary, or other obligation and (ii) the receiving party provides disclosing party with written notice of such prior possession either (A) prior to the\nexecution and delivery of this Agreement or (B) if the receiving party later becomes aware of (through disclosure to the receiving party or otherwise through the receiving party’s work on the engagement) any aspect of the\nConfidential Information of which the receiving party had prior possession, promptly upon the receiving party becoming aware of such aspect.\n10\n7.\nIn the event that the parties or their respective Representatives, is, in the opinion of legal counsel, required by legal process, law or regulation to disclose any portion of the Confidential Information provided to it, such party shall\nprovide the other party with prompt written notice of such requirement as far in advance of the proposed disclosure as possible so that the other party (at its expense) may either seek a protective order or other appropriate remedy\nwhich is necessary to protect its interests or waive compliance with the non-disclosure provisions of this Agreement to the extent necessary (provided that one or the other be done). Each of the parties and their respective\nRepresentatives shall cooperate in all reasonable respects with each other in seeking to prevent or limit disclosure and, in the event a protective order or other remedy is not obtained, the party being required to make disclosures\nwill limit the disclosure to the information actually required to be disclosed, provided that such party shall not be required to incur any out-of-pocket costs in complying with this paragraph.\n8.\nEach of the parties shall indemnify and hold the other party and its Representatives harmless from any damages, loss, cost, or liability (including reasonable legal fees and the cost of enforcing this indemnity) arising out of or\nresulting from any unauthorized use or disclosure by the receiving party or its Representatives of the Confidential Information or other violation of this Agreement. In addition, because an award of money damages (whether\npursuant to the foregoing sentence or otherwise) would be inadequate for any breach of this Agreement by the receiving party or its Representatives and any such breach would cause the disclosing party irreparable harm, the\nreceiving party also agrees that, in the event of any breach or threatened breach of this Agreement, the disclosing party will also be entitled, without the requirement of posting a bond or other security, to equitable, relief, including\ninjunctive relief and specific performance. Such remedies will not be the exclusive remedies for any breach of this Agreement but will be in addition to all other remedies available at law or in equity to the disclosing party.\n9.\nThe invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect. If any of the covenants or\nprovision of this Agreement are determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the parties contemplate that the court making such determination shall reduce such extent, duration, scope\nor other provision and enforce them in their reduced form for all purposes contemplated by this Agreement.\n10.\nThis Confidentiality Letter Agreement shall be governed by the laws of the State of Georgia without regard to conflicts of laws or principles.\nIN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date first written above.\nAGENT:\nCREATIVE INSURANCE MANAGERS, INC.\n/s/ Phillip A. Williams\nPhillip A. Williams, President\nCUSTOMER:\nSUB-CONTRACTING CONCEPTS, INC .\n/s/ Steven Rothman\nSteven Rothman, CEO, Coach Industries Group, Inc.\n11
+8d7ff254a917b94f20d1710ab93b23ab.pdf	effective_date jurisdiction party term	EX-99.(D)(9) 18 dex99d9.htm CONFIDENTIALITY AGREEMENT DATED SEPTEMBER 4, 2003 BETWEEN\nORBITZ LLC AND CENDANT\nExhibit(d)(9)\nSeptember 4, 2003\nCendant Corporation\n9 West 57th Street\nNew York, New York 10019\nLadies and Gentlemen:\nWe are writing with regard to your interest in discussing the possibility of negotiating a transaction between Orbitz LLC, a Delaware limited liability\ncompany (“Company”) and Cendant Corporation, a Delaware corporation (“Cendant”). In the course of discussions concerning a possible\ntransaction between Company and Cendant, Cendant and Company (as applicable, “Recipient”) may obtain from one another (as applicable,\n“Disclosing Party”) or their respective representatives information whether written, oral or electronic in form including data, reports, interpretations,\ndocuments and records containing or otherwise reflecting information, concerning the Disclosing Party’s business, and which thereafter may be\ncontained or reflected in analyses, compilations, studies or other documents, whether prepared by the Recipient or others (collectively, the\n“Confidential Information). The following information will not constitute Confidential Information for purposes of this letter: (a) information which\nwas, or has become, generally available to the public other than as a result of a disclosure in violation of the terms hereof or through Disclosing Party\nor its representatives, (b) information which was available to Recipient on a non-confidential basis prior to its disclosure to Recipient by Disclosing\nParty (provided that the Recipient had no reason to know that the source of the information was breaching a duty to Disclosing Party by disclosing\nsuch Confidential Information), (c) information developed by Recipient without the use of Confidential Information.\nRecipient agrees that the Confidential Information will be held and treated by Recipient confidentially and will not be disclosed to any other person\nor entity and that the Confidential Information will not be used for any purpose other than to evaluate the possible transaction described in this letter;\nprovided, however, that (i) Recipient may disclose the Confidential Information to those of its representatives who need to know such Confidential\nInformation for the purpose of evaluating the transaction described in this letter and (ii) Recipient may disclose such Confidential Information as to\nwhich Disclosing Party has consented in writing to disclose or as required by law, SEC or NYSE regulations.\nIn addition, Recipient agrees that it will not make any disclosure that it is having or has had discussions concerning a possible transaction involving\nDisclosing Party, that Recipient has received Confidential Information or that Recipient is considering a possible transaction involving Disclosing\nParty; provided, however, that Recipient may make such disclosure if it has received advice from its counsel that such disclosure must be made by\nRecipient in order that it not commit a violation of law and, prior to such disclosure, Recipient promptly advises and consults with the\nDisclosing Party and its legal counsel concerning the information it proposes to disclose.\nRecipient agrees that if it decides not to proceed with a transaction of the type contemplated herein, it will promptly inform Disclosing Party of that\ndecision. Recipient agrees that all written and/or electronic Confidential Information will be returned to Disclosing Party or destroyed promptly upon\nDisclosing Party’s general request. Notwithstanding the return or destruction of Confidential Information, Recipient and its representatives will\ncontinue to be bound by their obligations of confidentiality and other obligations hereunder.\nRecipient agrees that it will inform each of its representatives which has, or will have, access to any or all of the Confidential Information, of the\nexistence and content of this letter and will take all reasonable action necessary to cause such representatives to observe the confidentiality\nrequirements hereof. In any event, Recipient agrees to be responsible for any breach of this agreement by any of its representatives. This letter shall\nnot prohibit disclosure by Recipient of any Confidential Information if, in the reasonable opinion of Recipient’s legal counsel, such disclosure is\nrequired to avoid a violation of law, SEC or NYSE regulations by Recipient, in which event Recipient shall only do so to the limited extent\nnecessary to comply with such law and shall, to the extent practicable, give Disclosing Party advance notice thereof and an opportunity to comment\non any such disclosure. In the event that Recipient is required in any proceeding to disclose any of the Confidential Information, it will give the\nDisclosing Party prompt written notice of such request so that Disclosing Party may seek an appropriate protective order. If Recipient is compelled\nto disclose all or any part of the Confidential Information, it may disclose without liability hereunder such Confidential Information as it is legally\nrequired to disclose; provided, however, that Recipient will give Disclosing Party written notice of the Confidential Information to be disclosed as\nfar in advance of its disclosure as practicable and, upon Disclosing Party’s request and at Disclosing Party’s expense, use reasonable efforts to assist\nDisclosing Party in obtaining assurances that confidential treatment and/or a protective order will be accorded to such Confidential Information.\nThe obligations set forth in the previous paragraph shall survive the termination of this letter, termination of discussions between the parties and the\ncompletion of the parties’ evaluation of the possible transaction, and shall remain in effect until the possible transaction is consummated, the\nimplicated Confidential Information becomes generally available to the public other than through a violation of the terms of this letter, or two years\nfrom the date of this letter, whichever comes first.\nRecipient understands and agrees that none of Disclosing Party or any of its affiliates, agents, advisors or representatives (i) have made or make any\nrepresentation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information or (ii) shall have any liability\nwhatsoever to Recipient or its representatives relating to or resulting from the use of the\n2\nConfidential Information or any errors therein or omissions therefrom.\nThe validity, interpretation and performance of this letter shall be governed by and construed in accordance with the laws of the State of Delaware,\nexcluding any choice of law rules that may direct the application of the laws of any other jurisdiction.\nNo failure or delay by Disclosing party in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial waiver\nthereof preclude any other or further exercise thereof or the exercise of any other right hereunder. This letter contains the entire understanding of the\nparties hereto with respect to the subject matter contained herein and supersedes all prior agreements and understandings between the parties with\nrespect to such subject matter. This letter may be amended or waived only by written instrument duly executed by the parties hereto. This letter may\nbe executed in several counterparts, all of which together shall constitute one and the same instrument.\nAdditionally, Cendant agrees that, for a period of two years from the date of this letter, it and its controlled affiliates will not acquire, or assist, advise\nor encourage any other person in acquiring, directly or indirectly, control of the Company or any of the Company’s securities, businesses or assets\nunless the Company shall have consented in advance to such acquisition. Notwithstanding anything contained herein to the contrary, the foregoing\nprohibition shall not apply to the following activities of Cendant and its affiliates: (i) acquisition of up to an aggregate of 2% of any one or more\nclasses of securities of the Company made without the intent of controlling the Company; or (ii) acquisitions made in connection with a transaction\nin which Cendant or an affiliate acquires a previously unaffiliated business entity that owns securities of the Company; or (iii) acquisitions made as a\nresult of a stock split, stock dividend or other recapitalization; or (iv) from making any request of the Company on a confidential basis, without any\npublic disclosure thereof by Cendant and without any intent to compel the Company to make any public disclosure thereof. In the event that the\nCompany enters into or publicly consents to a transaction involving a “Change in Control”, or becomes the target of a publicly announced tender\noffer, subject only to customary conditions, by a third party having adequate financial resources which, if concluded, would involve a “Change in\nControl”, then the restrictions and limitations contained in this paragraph shall not apply, unless and until such proposed “Change in Control”\ntransaction is terminated without being consummated or completed. For purpose of the foregoing, a transaction shall be deemed to involve a\n“Change in Control” if the transaction would involve any of the following: (A) any person or entity (other than the Founding Airlines as a group or\ntheir subsidiaries or affiliates as a group or any of their employee benefit plan or plans or any trustee of or fiduciary with respect to such plan or\nplans when acting in such capacity), or any group acting in concert, shall beneficially own, directly or indirectly, in excess of fifty percent (50%) of\nthe total voting power represented by the then outstanding voting securities of the Company; or (B) upon a merger, combination, consolidation or\nreorganization of the\n3\nCompany, other than a merger, combination, consolidation or reorganization which would result in (1) the voting securities of the Company\noutstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the\nsurviving entity) at least 51% of the voting power represented by the voting securities of the Company or such surviving entity outstanding\nimmediately after such transaction and (2) at least such 51% of voting power continuing to be held in the aggregate by the holders of the voting\nsecurities of the Company immediately prior to such transaction (conditions (1) and (2) are retired to as the “Continuance Conditions”); or (C) all or\nsubstantially all of the assets of the Company are sold or otherwise disposed of, whether in one transaction or a series of transactions, unless the\nContinuance Conditions shall have been satisfied with respect to the purchaser of such assets and such purchaser assumes the Company’s obligations\nunder this Agreement; or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission)\nor consents to vote any of the Company’s voting securities which results in a majority of the directors of the Company being comprised of\nindividuals other than (1) the directors of the Company following the election of the three independent directors, that may occur after the Initial\nPublic Offering or (2) any new director whose election or nomination for election to the Board of Directors was approved or recommended by the\nCompany’s board of directors. As used herein, the term “voting securities” shall mean any securities which vote generally in the election of\ndirectors. The foregoing provision shall become effective when Cendant has received any non-public confidential information pursuant to this letter.\nCendant also agrees that the Company may be entitled to equitable relief; including injunction, in the event of any breach of the provisions of this\nparagraph\nIt is acknowledged and agreed that money damages would not be a sufficient remedy for any breach of this letter and, accordingly, in the event of a\nbreach or threat of a breach of this letter by Recipient hereto, Disclosing Party shall be entitled to specific performance of this letter and an\ninjunction restraining such breach. Nothing herein shall be construed as limiting Disclosing Party’s right to any other remedies available for such\nbreach or threat of breach, including without limitation, the recovery of damages. This covenant shall be deemed to be an agreement independent of\nany other obligation of the parties hereto, and the existence of any claim or cause of action of a party hereto, whether predicated upon this letter or\notherwise, shall not constitute a defense to the enforcement of this covenant by the other party hereto.\nThis letter is for the benefit of the parties hereto, and is enforceable by each of them in accordance with its terms, and no other person or entity shall\nobtain any right under this letter other than the parties hereto.\n4\nVery truly yours,\nOrbitz LLC\nBy: /s/ John J. Park\nName: John J. Park\nTitle: CFO\nAccepted and agreed:\nCendant Corporation\nBy: /s/ Eric J. Bock\nName: Eric J. Bock\nTitle: Executive Vice President, Law\nand Corporate Secretary\n5	EX-99.(D)(9) 18 dex99d9.htm CONFIDENTIALITY AGREEMENT DATED SEPTEMBER 4, 2003 BETWEEN\nORBITZ LLC AND CENDANT\nExhibit(d)(9)\nSeptember 4, 2003\nCendant Corporation\n9 West 57th Street\nNew York, New York 10019\nLadies and Gentlemen:\nWe are writing with regard to your interest in discussing the possibility of negotiating a transaction between Orbitz LLC, a Delaware limited liability\ncompany (“Company”) and Cendant Corporation, a Delaware corporation (“Cendant”). In the course of discussions concerning a possible\ntransaction between Company and Cendant, Cendant and Company (as applicable, “Recipient”) may obtain from one another (as applicable,\n“Disclosing Party”) or their respective representatives information whether written, oral or electronic in form including data, reports, interpretations,\ndocuments and records containing or otherwise reflecting information, concerning the Disclosing Party’s business, and which thereafter may be\ncontained or reflected in analyses, compilations, studies or other documents, whether prepared by the Recipient or others (collectively, the\n“Confidential Information). The following information will not constitute Confidential Information for purposes of this letter: (a) information which\nwas, or has become, generally available to the public other than as a result of a disclosure in violation of the terms hereof or through Disclosing Party\nor its representatives, (b) information which was available to Recipient on a non-confidential basis prior to its disclosure to Recipient by Disclosing\nParty (provided that the Recipient had no reason to know that the source of the information was breaching a duty to Disclosing Party by disclosing\nsuch Confidential Information), (c) information developed by Recipient without the use of Confidential Information.\nRecipient agrees that the Confidential Information will be held and treated by Recipient confidentially and will not be disclosed to any other person\nor entity and that the Confidential Information will not be used for any purpose other than to evaluate the possible transaction described in this letter;\nprovided, however, that (i) Recipient may disclose the Confidential Information to those of its representatives who need to know such Confidential\nInformation for the purpose of evaluating the transaction described in this letter and (ii) Recipient may disclose such Confidential Information as to\nwhich Disclosing Party has consented in writing to disclose or as required by law, SEC or NYSE regulations.\nIn addition, Recipient agrees that it will not make any disclosure that it is having or has had discussions concerning a possible transaction involving\nDisclosing Party, that Recipient has received Confidential Information or that Recipient is considering a possible transaction involving Disclosing\nParty; provided, however, that Recipient may make such disclosure if it has received advice from its counsel that such disclosure must be made by\nRecipient in order that it not commit a violation of law and, prior to such disclosure, Recipient promptly advises and consults with the\nDisclosing Party and its legal counsel concerning the information it proposes to disclose.\nRecipient agrees that if it decides not to proceed with a transaction of the type contemplated herein, it will promptly inform Disclosing Party of that\ndecision. Recipient agrees that all written and/or electronic Confidential Information will be returned to Disclosing Party or destroyed promptly upon\nDisclosing Party’s general request. Notwithstanding the return or destruction of Confidential Information, Recipient and its representatives will\ncontinue to be bound by their obligations of confidentiality and other obligations hereunder.\nRecipient agrees that it will inform each of its representatives which has, or will have, access to any or all of the Confidential Information, of the\nexistence and content of this letter and will take all reasonable action necessary to cause such representatives to observe the confidentiality\nrequirements hereof. In any event, Recipient agrees to be responsible for any breach of this agreement by any of its representatives. This letter shall\nnot prohibit disclosure by Recipient of any Confidential Information if, in the reasonable opinion of Recipient’s legal counsel, such disclosure is\nrequired to avoid a violation of law, SEC or NYSE regulations by Recipient, in which event Recipient shall only do so to the limited extent\nnecessary to comply with such law and shall, to the extent practicable, give Disclosing Party advance notice thereof and an opportunity to comment\non any such disclosure. In the event that Recipient is required in any proceeding to disclose any of the Confidential Information, it will give the\nDisclosing Party prompt written notice of such request so that Disclosing Party may seek an appropriate protective order. If Recipient is compelled\nto disclose all or any part of the Confidential Information, it may disclose without liability hereunder such Confidential Information as it is legally\nrequired to disclose; provided, however, that Recipient will give Disclosing Party written notice of the Confidential Information to be disclosed as\nfar in advance of its disclosure as practicable and, upon Disclosing Party’s request and at Disclosing Party’s expense, use reasonable efforts to assist\nDisclosing Party in obtaining assurances that confidential treatment and/or a protective order will be accorded to such Confidential Information.\nThe obligations set forth in the previous paragraph shall survive the termination of this letter, termination of discussions between the parties and the\ncompletion of the parties’ evaluation of the possible transaction, and shall remain in effect until the possible transaction is consummated, the\nimplicated Confidential Information becomes generally available to the public other than through a violation of the terms of this letter, or two years\nfrom the date of this letter, whichever comes first.\nRecipient understands and agrees that none of Disclosing Party or any of its affiliates, agents, advisors or representatives (i) have made or make any\nrepresentation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information or (ii) shall have any liability\nwhatsoever to Recipient or its representatives relating to or resulting from the use of the\n2\nConfidential Information or any errors therein or omissions therefrom.\nThe validity, interpretation and performance of this letter shall be governed by and construed in accordance with the laws of the State of Delaware,\nexcluding any choice of law rules that may direct the application of the laws of any other jurisdiction.\nNo failure or delay by Disclosing party in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial waiver\nthereof preclude any other or further exercise thereof or the exercise of any other right hereunder. This letter contains the entire understanding of the\nparties hereto with respect to the subject matter contained herein and supersedes all prior agreements and understandings between the parties with\nrespect to such subject matter. This letter may be amended or waived only by written instrument duly executed by the parties hereto. This letter may\nbe executed in several counterparts, all of which together shall constitute one and the same instrument.\nAdditionally, Cendant agrees that, for a period of two years from the date of this letter, it and its controlled affiliates will not acquire, or assist, advise\nor encourage any other person in acquiring, directly or indirectly, control of the Company or any of the Company’s securities, businesses or assets\nunless the Company shall have consented in advance to such acquisition. Notwithstanding anything contained herein to the contrary, the foregoing\nprohibition shall not apply to the following activities of Cendant and its affiliates: (i) acquisition of up to an aggregate of 2% of any one or more\nclasses of securities of the Company made without the intent of controlling the Company; or (ii) acquisitions made in connection with a transaction\nin which Cendant or an affiliate acquires a previously unaffiliated business entity that owns securities of the Company; or (iii) acquisitions made as a\nresult of a stock split, stock dividend or other recapitalization; or (iv) from making any request of the Company on a confidential basis, without any\npublic disclosure thereof by Cendant and without any intent to compel the Company to make any public disclosure thereof. In the event that the\nCompany enters into or publicly consents to a transaction involving a “Change in Control”, or becomes the target of a publicly announced tender\noffer, subject only to customary conditions, by a third party having adequate financial resources which, if concluded, would involve a “Change in\nControl”, then the restrictions and limitations contained in this paragraph shall not apply, unless and until such proposed “Change in Control”\ntransaction is terminated without being consummated or completed. For purpose of the foregoing, a transaction shall be deemed to involve a\n“Change in Control” if the transaction would involve any of the following: (A) any person or entity (other than the Founding Airlines as a group or\ntheir subsidiaries or affiliates as a group or any of their employee benefit plan or plans or any trustee of or fiduciary with respect to such plan or\nplans when acting in such capacity), or any group acting in concert, shall beneficially own, directly or indirectly, in excess of fifty percent (50%) of\nthe total voting power represented by the then outstanding voting securities of the Company; or (B) upon a merger, combination, consolidation or\nreorganization of the\nCompany, other than a merger, combination, consolidation or reorganization which would result in (1) the voting securities of the Company\noutstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the\nsurviving entity) at least 51% of the voting power represented by the voting securities of the Company or such surviving entity outstanding\nimmediately after such transaction and (2) at least such 51% of voting power continuing to be held in the aggregate by the holders of the voting\nsecurities of the Company immediately prior to such transaction (conditions (1) and (2) are retired to as the “Continuance Conditions”); or (C) all or\nsubstantially all of the assets of the Company are sold or otherwise disposed of, whether in one transaction or a series of transactions, unless the\nContinuance Conditions shall have been satisfied with respect to the purchaser of such assets and such purchaser assumes the Company’s obligations\nunder this Agreement; or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission)\nor consents to vote any of the Company’s voting securities which results in a majority of the directors of the Company being comprised of\nindividuals other than (1) the directors of the Company following the election of the three independent directors, that may occur after the Initial\nPublic Offering or (2) any new director whose election or nomination for election to the Board of Directors was approved or recommended by the\nCompany’s board of directors. As used herein, the term “voting securities” shall mean any securities which vote generally in the election of\ndirectors. The foregoing provision shall become effective when Cendant has received any non-public confidential information pursuant to this letter.\nCendant also agrees that the Company may be entitled to equitable relief; including injunction, in the event of any breach of the provisions of this\nparagraph\nIt is acknowledged and agreed that money damages would not be a sufficient remedy for any breach of this letter and, accordingly, in the event of a\nbreach or threat of a breach of this letter by Recipient hereto, Disclosing Party shall be entitled to specific performance of this letter and an\ninjunction restraining such breach. Nothing herein shall be construed as limiting Disclosing Party’s right to any other remedies available for such\nbreach or threat of breach, including without limitation, the recovery of damages. This covenant shall be deemed to be an agreement independent of\nany other obligation of the parties hereto, and the existence of any claim or cause of action of a party hereto, whether predicated upon this letter or\notherwise, shall not constitute a defense to the enforcement of this covenant by the other party hereto.\nThis letter is for the benefit of the parties hereto, and is enforceable by each of them in accordance with its terms, and no other person or entity shall\nobtain any right under this letter other than the parties hereto.\nVery truly yours,\nOrbitz LLC\nBy: /s/ John J. Park\nName: John J. Park\nTitle: CFO\nAccepted and agreed:\nCendant Corporation\nBy: /s/ Eric J. Bock\nName: Eric J. Bock\nTitle: Executive Vice President, Law\nand Corporate Secretary	EX-99.(D)(9) 18 dex99d9.htm CONFIDENTIALITY AGREEMENT DATED SEPTEMBER 4, 2003 BETWEEN\nORBITZ LLC AND CENDANT\nExhibit(d)(9\nSeptember 4, 2003\nCendant Corporation\n9 West 57th Street\nNew York, New York 10019\nLadies and Gentlemen:\nWe are writing with regard to your interest in discussing the possibility of negotiating a transaction between Orbitz LLC, a Delaware limited liability\ncompany ("Company") and Cendant Corporation, a Delaware corporation ("Cendant"). In the course of discussions concerning a possible\ntransaction between Company and Cendant, Cendant and Company (as applicable, "Recipient") may obtain from one another (as applicable,\n"Disclosing Party") or their respective representatives information whether written, oral or electronic in form including data, reports, interpretations,\ndocuments and records containing or otherwise reflecting information, concerning the Disclosing Party's business, and which thereafter may be\ncontained or reflected in analyses, compilations, studies or other documents, whether prepared by the Recipient or others (collectively, the\n"Confidential Information). The following information will not constitute Confidential Information for purposes of this letter: (a) information which\nwas, or has become, generally available to the public other than as a result of a disclosure in violation of the terms hereof or through Disclosing Party\nor its representatives, (b) information which was available to Recipient on a non-confidential basis prior to its disclosure to Recipient by Disclosing\nParty (provided that the Recipient had no reason to know that the source of the information was breaching a duty to Disclosing Party by disclosing\nsuch Confidential Information), (c) information developed by Recipient without the use of Confidential Information.\nRecipient agrees that the Confidential Information will be held and treated by Recipient confidentially and will not be disclosed to any other person\nor entity and that the Confidential Information will not be used for any purpose other than to evaluate the possible transaction described in this letter;\nprovided, however, that (i) Recipient may disclose the Confidential Information to those of its representatives who need to know such Confidential\nInformation for the purpose of evaluating the transaction described in this letter and (ii) Recipient may disclose such Confidential Information as to\nwhich Disclosing Party has consented in writing to disclose or as required by law, SEC or NYSE regulations.\nIn addition, Recipient agrees that it will not make any disclosure that it is having or has had discussions concerning a possible transaction involving\nDisclosing Party, that Recipient has received Confidential Information or that Recipient is considering a possible transaction involving Disclosing\nParty; provided, however, that Recipient may make such disclosure if it has received advice from its counsel that such disclosure must be made by\nRecipient in order that it not commit a violation of law and, prior to such disclosure, Recipient promptly advises and consults with the\nDisclosing Party and its legal counsel concerning the information it proposes to disclose.\nRecipient agrees that if it decides not to proceed with a transaction of the type contemplated herein, it will promptly inform Disclosing Party of that\ndecision. Recipient agrees that all written and/or electronic Confidential Information will be returned to Disclosing Party or destroyed promptly upon\nDisclosing Party's general request. Notwithstanding the return or destruction of Confidential Information, Recipient and its representatives will\ncontinue to be bound by their obligations of confidentiality and other obligations hereunder.\nRecipient agrees that it will inform each of its representatives which has, or will have, access to any or all of the Confidential Information, of the\nexistence and content of this letter and will take all reasonable action necessary to cause such representatives to observe the confidentiality\nrequirements hereof. In any event, Recipient agrees to be responsible for any breach of this agreement by any of its representatives. This letter shall\nnot prohibit disclosure by Recipient of any Confidential Information if, in the reasonable opinion of Recipient's legal counsel, such disclosure is\nrequired to avoid a violation of law, SEC or NYSE regulations by Recipient, in which event Recipient shall only do so to the limited extent\nnecessary to comply with such law and shall, to the extent practicable, give Disclosing Party advance notice thereof and an opportunity to comment\non any such disclosure. In the event that Recipient is required in any proceeding to disclose any of the Confidential Information, it will give the\nDisclosing Party prompt written notice of such request so that Disclosing Party may seek an appropriate protective order. If Recipient is compelled\nto disclose all or any part of the Confidential Information, it may disclose without liability hereunder such Confidential Information as it is legally\nrequired to disclose; provided, however, that Recipient will give Disclosing Party written notice of the Confidential Information to be disclosed\nas\nfar in advance of its disclosure as practicable and, upon Disclosing Party's request and at Disclosing Party's expense, use reasonable efforts to assist\nDisclosing Party in obtaining assurances that confidential treatment and/or a protective order will be accorded to such Confidential Information.\nThe obligations set forth in the previous paragraph shall survive the termination of this letter, termination of discussions between the parties and the\ncompletion of the parties' evaluation of the possible transaction, and shall remain in effect until the possible transaction is consummated, the\nimplicated Confidential Information becomes generally available to the public other than through a violation of the terms of this letter, or two years\nfrom the date of this letter, whichever comes first.\nRecipient understands and agrees that none of Disclosing Party or any of its affiliates, agents, advisors or representatives (i) have made or make any\nrepresentation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information or (ii) shall have any liability\nwhatsoever to Recipient or its representatives relating to or resulting from the use of the\n2\nConfidential Information or any errors therein or omissions therefrom.\nThe validity, interpretation and performance of this letter shall be governed by and construed in accordance with the laws of the State of Delaware,\nexcluding any choice of law rules that may direct the application of the laws of any other jurisdiction.\nNo failure or delay by Disclosing party in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial waiver\nthereof preclude any other or further exercise thereof or the exercise of any other right hereunder. This letter contains the entire understanding of\nthe\nparties hereto with respect to the subject matter contained herein and supersedes all prior agreements and understandings between the parties with\nrespect to such subject matter. This letter may be amended or waived only by written instrument duly executed by the parties hereto.\nThis\nletter\nmay\nbe executed in several counterparts, all of which together shall constitute one and the same instrument.\nAdditionally, Cendant agrees that, for a period of two years from the date of this letter, it and its controlled affiliates will not acquire, or assist, advise\nor\nencourage any other person in acquiring, directly or indirectly, control of the Company or any of the Company's securities, businesses or assets\nunless the Company shall have consented in advance to such acquisition. Notwithstanding anything contained herein to the contrary, the foregoing\nprohibition shall not apply to the following activities of Cendant and its affiliates: (i) acquisition of up to an aggregate of 2% of any one or more\nclasses of securities of the Company made without the intent of controlling the Company; or (ii) acquisitions made in connection with a transaction\nin which Cendant or an affiliate acquires a previously unaffiliated business entity that owns securities of the Company; or (iii) acquisitions made as a\nresult of a stock split, stock dividend or other recapitalization; or (iv) from making any request of the Company on a confidential basis, without\nany\npublic disclosure thereof by Cendant and without any intent to compel the Company to make any public disclosure thereof. In the event that the\nCompany enters into or publicly consents to a transaction involving a "Change in Control", or becomes the target of a publicly announced tender\noffer, subject only to customary conditions, by a third party having adequate financial resources which, if concluded, would involve a "Change in\nControl", then the restrictions and limitations contained in this paragraph shall not apply, unless and until such proposed "Change in Control"\ntransaction is terminated without being consummated or completed. For purpose of the foregoing, a transaction shall be deemed to involve a\n"Change in Control" if the transaction would involve any of the following: (A) any person or entity (other than the Founding Airlines\nas\na\ngroup\nor\ntheir subsidiaries or affiliates as a group or any of their employee benefit plan or plans or any trustee of or fiduciary with respect to such plan or\nplans when acting in such capacity), or any group acting in concert, shall beneficially own, directly or indirectly, in excess of fifty percent (50%) of\nthe total voting power represented by the then outstanding voting securities of the Company; or (B) upon a merger, combination, consolidation or\nreorganization of the\n3\nCompany, other than a merger, combination, consolidation or reorganization which would result in (1) the voting securities of the Company\noutstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of\nthe\nsurviving entity) at least 51% of the voting power represented by the voting securities of the Company or such surviving entity outstanding\nimmediately after such transaction and (2) at least such 51% of voting power continuing to be held in the aggregate by the holders of the voting\nsecurities of the Company immediately prior to such transaction (conditions (1) and (2) are retired to as the "Continuance Conditions"); or (C)\nall\nor\nsubstantially all of the assets of the Company are sold or otherwise disposed of, whether in one transaction or a series of transactions, unless the\nContinuance Conditions shall have been satisfied with respect to the purchaser of such assets and such purchaser assumes the Company's obligations\nunder this Agreement; or (D) any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission)\nor consents to vote any of the Company's voting securities which results in a majority of the directors of the Company being comprised of\nindividuals other than (1) the directors of the Company following the election of the three independent directors, that may occur after the Initial\nPublic Offering or (2) any new director whose election or nomination for election to the Board of Directors was approved or recommended by the\nCompany's board of directors. As used herein, the term "voting securities" shall mean any securities which vote generally in the election\nof\ndirectors. The foregoing provision shall become effective when Cendant has received any non-public confidential information pursuant to this letter.\nCendant also agrees that the Company may be entitled to equitable relief; including injunction, in the event of any breach of the provisions of this\nparagraph\nIt is acknowledged and agreed that money damages would not be a sufficient remedy for any breach of this letter and, accordingly, in the event of\na\nbreach or threat of a breach of this letter by Recipient hereto, Disclosing Party shall be entitled to specific performance of this letter and an\ninjunction restraining such breach. Nothing herein shall be construed as limiting Disclosing Party's right to any other remedies available for such\nbreach or threat of breach, including without limitation, the recovery of damages. This covenant shall be deemed to be an agreement independent of\nany other obligation of the parties hereto, and the existence of any claim or cause of action of a party hereto, whether predicated upon this letter or\notherwise, shall not constitute a defense to the enforcement of this covenant by the other party hereto.\nThis letter is for the benefit of the parties hereto, and is enforceable by each of them in accordance with its terms, and no other person or entity shall\nobtain any right under this letter other than the parties hereto.\n4\nVery truly yours,\nOrbitz LLC\nBy:\n/s/ John J. Park\nName: John J. Park\nTitle: CFO\nAccepted and agreed:\nCendant Corporation\nBy:\n/s/ Eric J. Bock\nName: Eric J. Bock\nTitle:\nExecutive Vice President, Law\nand Corporate Secretary\n5	EX-99.(D)(9) 18 dex99d9.htm CONFIDENTIALITY AGREEMENT DATED SEPTEMBER 4, 2003 BETWEEN\nORBITZ LLC AND CENDANT\nExhibit(d)(9)\nSeptember 4, 2003\nCendant Corporation\n9 West 57th Street\nNew York, New York 10019\nLadies and Gentlemen:\nWe are writing with regard to your interest in discussing the possibility of negotiating a transaction between Orbitz LLC, a Delaware limited liability\ncompany (“Company”) and Cendant Corporation, a Delaware corporation (“Cendant”). In the course of discussions concerning a possible\ntransaction between Company and Cendant, Cendant and Company (as applicable, “Recipient”) may obtain from one another (as applicable,\n“Disclosing Party”) or their respective representatives information whether written, oral or electronic in form including data, reports, interpretations,\ndocuments and records containing or otherwise reflecting information, concerning the Disclosing Party’s business, and which thereafter may be\ncontained or reflected in analyses, compilations, studies or other documents, whether prepared by the Recipient or others (collectively, the\n“Confidential Information). The following information will not constitute Confidential Information for purposes of this letter: (a) information which\nwas, or has become, generally available to the public other than as a result of a disclosure in violation of the terms hereof or through Disclosing Party\nor its representatives, (b) information which was available to Recipient on a non-confidential basis prior to its disclosure to Recipient by Disclosing\nParty (provided that the Recipient had no reason to know that the source of the information was breaching a duty to Disclosing Party by disclosing\nsuch Confidential Information), (c) information developed by Recipient without the use of Confidential Information.\nRecipient agrees that the Confidential Information will be held and treated by Recipient confidentially and will not be disclosed to any other person\nor entity and that the Confidential Information will not be used for any purpose other than to evaluate the possible transaction described in this letter;\nprovided, however, that (i) Recipient may disclose the Confidential Information to those of its representatives who need to know such Confidential\nInformation for the purpose of evaluating the transaction described in this letter and (ii) Recipient may disclose such Confidential Information as to\nwhich Disclosing Party has consented in writing to disclose or as required by law, SEC or NYSE regulations.\nIn addition, Recipient agrees that it will not make any disclosure that it is having or has had discussions concerning a possible transaction involving\nDisclosing Party, that Recipient has received Confidential Information or that Recipient is considering a possible transaction involving Disclosing\nParty; provided, however, that Recipient may make such disclosure if it has received advice from its counsel that such disclosure must be made by\nRecipient in order that it not commit a violation of law and, prior to such disclosure, Recipient promptly advises and consults with the\nDisclosing Party and its legal counsel concerning the information it proposes to disclose.\nRecipient agrees that if it decides not to proceed with a transaction of the type contemplated herein, it will promptly inform Disclosing Party of that\ndecision. Recipient agrees that all written and/or electronic Confidential Information will be returned to Disclosing Party or destroyed promptly upon\nDisclosing Party’s general request. Notwithstanding the return or destruction of Confidential Information, Recipient and its representatives will\ncontinue to be bound by their obligations of confidentiality and other obligations hereunder.\nRecipient agrees that it will inform each of its representatives which has, or will have, access to any or all of the Confidential Information, of the\nexistence and content of this letter and will take all reasonable action necessary to cause such representatives to observe the confidentiality\nrequirements hereof. In any event, Recipient agrees to be responsible for any breach of this agreement by any of its representatives. This letter shall\nnot prohibit disclosure by Recipient of any Confidential Information if, in the reasonable opinion of Recipient’s legal counsel, such disclosure is\nrequired to avoid a violation of law, SEC or NYSE regulations by Recipient, in which event Recipient shall only do so to the limited extent\nnecessary to comply with such law and shall, to the extent practicable, give Disclosing Party advance notice thereof and an opportunity to comment\non any such disclosure. In the event that Recipient is required in any proceeding to disclose any of the Confidential Information, it will give the\nDisclosing Party prompt written notice of such request so that Disclosing Party may seek an appropriate protective order. If Recipient is compelled\nto disclose all or any part of the Confidential Information, it may disclose without liability hereunder such Confidential Information as it is legally\nrequired to disclose; provided, however, that Recipient will give Disclosing Party written notice of the Confidential Information to be disclosed as\nfar in advance of its disclosure as practicable and, upon Disclosing Party’s request and at Disclosing Party’s expense, use reasonable efforts to assist\nDisclosing Party in obtaining assurances that confidential treatment and/or a protective order will be accorded to such Confidential Information.\nThe obligations set forth in the previous paragraph shall survive the termination of this letter, termination of discussions between the parties and the\ncompletion of the parties’ evaluation of the possible transaction, and shall remain in effect until the possible transaction is consummated, the\nimplicated Confidential Information becomes generally available to the public other than through a violation of the terms of this letter, or two years\nfrom the date of this letter, whichever comes first.\nRecipient understands and agrees that none of Disclosing Party or any of its affiliates, agents, advisors or representatives (i) have made or make any\nrepresentation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information or (ii) shall have any liability\nwhatsoever to Recipient or its representatives relating to or resulting from the use of the\n2\nConfidential Information or any errors therein or omissions therefrom.\nThe validity, interpretation and performance of this letter shall be governed by and construed in accordance with the laws of the State of Delaware,\nexcluding any choice of law rules that may direct the application of the laws of any other jurisdiction.\nNo failure or delay by Disclosing party in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial waiver\nthereof preclude any other or further exercise thereof or the exercise of any other right hereunder. This letter contains the entire understanding of the\nparties hereto with respect to the subject matter contained herein and supersedes all prior agreements and understandings between the parties with\nrespect to such subject matter. This letter may be amended or waived only by written instrument duly executed by the parties hereto. This letter may\nbe executed in several counterparts, all of which together shall constitute one and the same instrument.\nAdditionally, Cendant agrees that, for a period of two years from the date of this letter, it and its controlled affiliates will not acquire, or assist, advise\nor encourage any other person in acquiring, directly or indirectly, control of the Company or any of the Company’s securities, businesses or assets\nunless the Company shall have consented in advance to such acquisition. Notwithstanding anything contained herein to the contrary, the foregoing\nprohibition shall not apply to the following activities of Cendant and its affiliates: (i) acquisition of up to an aggregate of 2% of any one or more\nclasses of securities of the Company made without the intent of controlling the Company; or (ii) acquisitions made in connection with a transaction\nin which Cendant or an affiliate acquires a previously unaffiliated business entity that owns securities of the Company; or (iii) acquisitions made as a\nresult of a stock split, stock dividend or other recapitalization; or (iv) from making any request of the Company on a confidential basis, without any\npublic disclosure thereof by Cendant and without any intent to compel the Company to make any public disclosure thereof. In the event that the\nCompany enters into or publicly consents to a transaction involving a “Change in Control”, or becomes the target of a publicly announced tender\noffer, subject only to customary conditions, by a third party having adequate financial resources which, if concluded, would involve a “Change in\nControl”, then the restrictions and limitations contained in this paragraph shall not apply, unless and until such proposed “Change in Control”\ntransaction is terminated without being consummated or completed. For purpose of the foregoing, a transaction shall be deemed to involve a\n“Change in Control” if the transaction would involve any of the following: (A) any person or entity (other than the Founding Airlines as a group or\ntheir subsidiaries or affiliates as a group or any of their employee benefit plan or plans or any trustee of or fiduciary with respect to such plan or\nplans when acting in such capacity), or any group acting in concert, shall beneficially own, directly or indirectly, in excess of fifty percent (50%) of\nthe total voting power represented by the then outstanding voting securities of the Company; or (B) upon a merger, combination, consolidation or\nreorganization of the\n3\nCompany, other than a merger, combination, consolidation or reorganization which would result in (1) the voting securities of the Company\noutstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the\nsurviving entity) at least 51% of the voting power represented by the voting securities of the Company or such surviving entity outstanding\nimmediately after such transaction and (2) at least such 51% of voting power continuing to be held in the aggregate by the holders of the voting\nsecurities of the Company immediately prior to such transaction (conditions (1) and (2) are retired to as the “Continuance Conditions”); or (C) all or\nsubstantially all of the assets of the Company are sold or otherwise disposed of, whether in one transaction or a series of transactions, unless the\nContinuance Conditions shall have been satisfied with respect to the purchaser of such assets and such purchaser assumes the Company’s obligations\nunder this Agreement; or (D) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission)\nor consents to vote any of the Company’s voting securities which results in a majority of the directors of the Company being comprised of\nindividuals other than (1) the directors of the Company following the election of the three independent directors, that may occur after the Initial\nPublic Offering or (2) any new director whose election or nomination for election to the Board of Directors was approved or recommended by the\nCompany’s board of directors. As used herein, the term “voting securities” shall mean any securities which vote generally in the election of\ndirectors. The foregoing provision shall become effective when Cendant has received any non-public confidential information pursuant to this letter.\nCendant also agrees that the Company may be entitled to equitable relief; including injunction, in the event of any breach of the provisions of this\nparagraph\nIt is acknowledged and agreed that money damages would not be a sufficient remedy for any breach of this letter and, accordingly, in the event of a\nbreach or threat of a breach of this letter by Recipient hereto, Disclosing Party shall be entitled to specific performance of this letter and an\ninjunction restraining such breach. Nothing herein shall be construed as limiting Disclosing Party’s right to any other remedies available for such\nbreach or threat of breach, including without limitation, the recovery of damages. This covenant shall be deemed to be an agreement independent of\nany other obligation of the parties hereto, and the existence of any claim or cause of action of a party hereto, whether predicated upon this letter or\notherwise, shall not constitute a defense to the enforcement of this covenant by the other party hereto.\nThis letter is for the benefit of the parties hereto, and is enforceable by each of them in accordance with its terms, and no other person or entity shall\nobtain any right under this letter other than the parties hereto.\n4\nVery truly yours,\nOrbitz LLC\nBy: /s/ John J. Park\nName: John J. Park\nTitle: CFO\nAccepted and agreed:\nCendant Corporation\nBy: /s/ Eric J. Bock\nName: Eric J. Bock\nTitle: Executive Vice President, Law\nand Corporate Secretary\n5
+907fc26b19e2e664dc7afb701102b75f.pdf	effective_date jurisdiction party term	EX-99.(E)(2) 2 a2227016zex-99_e2.htm EX-99.(E)(2)\nExhibit (e)(2)\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nAGREEMENT (this “Agreement”) is between The Pep Boys – Manny, Moe & Jack (on its own behalf and on behalf of its subsidiaries\nand affiliates, “Pep Boys”) and Icahn Enterprises L.P. (on its own behalf and on behalf of its subsidiaries and controlled affiliates, “Interested\nParty”), dated December 8, 2015.\nWHEREAS, on December 7, 2015, Interested Party provided a proposal to acquire Pep Boys for $15.50 per share in cash (as set forth in Pep\nBoys filing with the Securities and Exchange Commission dated December 7, 2015), which Pep Boys Board of Directors determined on\nDecember 7, 2015, in accordance with its obligations under that certain Agreement and Plan of Merger, dated as of October 26, 2015 (the\n“Bridgestone Agreement”), by and among Pep Boys, Bridgestone Retail Operations, LLC, a Delaware limited liability company (“Parent”), TAJ\nAcquisition Co., a Pennsylvania corporation and wholly-owned subsidiary of Parent, would reasonably be expected to result in a Superior\nProposal (as defined in the Bridgestone Agreement).\nWHEREAS, in accordance with Section 8.3(b) of the Bridgestone Agreement, Pep Boys is permitted to furnish information to or enter into\ndiscussions with Interested Party, subject to compliance with Section 8.3(b) of the Bridgestone Agreement, including the requirements that\n(i) Pep Boys provide notice to Parent of Pep Boys’ intent to furnish information to or enter into discussions with Interested Party (which Pep\nBoys provided to Parent on December 8, 2015), (ii) Pep Boys and the Interested Party enter into an Acceptable Confidentiality Agreement (as\ndefined in the Bridgestone Agreement), and (iii) Pep Boys promptly thereafter (but in any event within 24 hours) provide to Parent a copy of\nsuch Acceptable Confidentiality Agreement.\nWHEREAS, in accordance with Section 8.3 of the Bridgestone Agreement, Pep Boys is required to take certain actions and provide certain\ninformation to Parent with respect to its discussions with Interested Party and any proposed transaction.\nWHEREAS, the parties agree that, in order to assist Interested Party in considering a potential transaction with Pep Boys and in light of Pep\nBoys obligations under the Bridgestone Agreement, the parties desire to enter into this Agreement.\nNOW, THEREFORE, for and in consideration of the promises and mutual obligations contained herein, the parties, intending to be legally\nbound, hereby agree as follows:\n1.\nEach party on its own behalf (in such capacity, a “Receiving Party”) understands that they will receive certain Confidential Information\n(as defined below) from the other party (in such capacity, a “Disclosing Party”). “Confidential Information” includes any of the\nDisclosing Party’s trade secrets, proprietary rights, customer lists, financial, sales, inventory, operations, human resources, real estate\nand marketing data and any other information of the Disclosing Party which is marked “confidential” or “proprietary”\nand/or which the Receiving Party knows or, under all of the circumstances, should reasonably have known should be treated as\nconfidential and any analysis, reports or other information prepared or compiled by the Receiving Party which is based upon or derived\nfrom the information provided by the Disclosing Party. Confidential Information also includes the fact that the parties are considering a\npotential transaction and are engaging in discussions with respect thereto and any of the terms, conditions, or other facts with respect to\nany potential transaction, including the status thereof (the Confidential Information described in this sentence collectively, the\n“Transaction Information”).\n2.\nThe Receiving Party agrees that (a) without the Disclosing Party’s prior written consent, or as otherwise expressly permitted herein, it\nwill not disclose Confidential Information to any third party and (b) it will not use or reproduce Confidential Information, except for the\npurpose of considering a potential transaction involving the Disclosing Party. Notwithstanding anything to the contrary set forth herein,\nPep Boys shall be permitted to disclose the Transaction Information to Parent and take actions as necessary in compliance with its\nobligations under the Bridgestone Agreement.\n3.\nThe Receiving Party agrees that it will limit access to Confidential Information to those of its officers, directors, employees and\nprofessional advisors who have a need to know such Confidential Information in relation to assisting the Receiving Party in considering\na potential transaction with the Disclosing Party and who have been advised of the Receiving Party’s obligation of confidentiality\nhereunder and have been directed by the Receiving Party to comply therewith.\n4.\nThe Receiving Party agrees that upon the written request of the Disclosing Party, it will return to the Disclosing Party (or destroy and\ncertify such destruction to the Disclosing Party) any and all written, electronic or tangible materials (including all copies) of\nConfidential Information in the Receiving Party’s possession. Notwithstanding the foregoing, the Receiving Party shall be permitted to\nretain (a) one copy of the Confidential Information in order to comply with any applicable law, court, regulation or regulatory authority\nor to comply with existing internal document retention policies and (b) electronic copies of the Confidential Information created\npursuant to standard archival or back-up procedures.\n5.\nNotwithstanding the foregoing provisions of this Agreement, information shall not be considered Confidential Information, nor subject\nto the obligations imposed by this Agreement if the Receiving Party demonstrates that the information:\na.\nwas lawfully in the Receiving Party’s possession prior to the date of the disclosure of such information to the Receiving Party;\nb.\nwas generally available to the public prior to the date of disclosure of such information to the Receiving Party;\nc.\nhas become generally available to the public, except as a result of a breach of this Agreement;\n2\nd.\nwas supplied to the Receiving Party without restriction by a third party who was under no obligation to the Disclosing Party to\nmaintain such information in confidence;\ne.\nwas required to be disclosed by law; provided, that, prior to the disclosure of such information, the Receiving Party had\nprovided written notice of such legal requirement to the Disclosing Party for the purpose of allowing the Disclosing Party to\nseek a protective order preventing the disclosure of such information; or\nd.\nwas or is independently developed by the Receiving Party without use of or reference to Confidential Information received\nfrom the Disclosing Party, as evidenced by existing documentation.\n6.\nThe Confidential Information shall be deemed the property of the Disclosing Party and the disclosure of Confidential Information\nhereunder by the Disclosing Party to the Receiving Party shall not be construed as granting to the Receiving Party any license or right of\nownership of any patents, trademarks, copyrights, intellectual property of the Disclosing Party or other Confidential Information. The\nDisclosing Party makes no representation or warranty as to the accuracy or completeness of the Confidential Information and,\naccordingly, shall not have any liability to the Receiving Party resulting from its use of the Confidential Information. Only those\nrepresentations or warranties made expressly in a definitive agreement, when, as, and if it is executed, and subject to such limitations\nand restrictions as may be specified in such agreement, will have any legal effect.\n7.\nAll Confidential Information shall he treated as confidential by the Receiving Party and subject to the restrictions and obligations\ncontained herein for a period following the date of this Agreement until July 31, 2017.\n8.\nNeither this Agreement nor the disclosure any Confidential Information shall (a) constitute or imply any promise or intention of the\nparties to consummate any transaction between them, nor (b) prohibit Pep Boys from discussing any potential business transactions with\nother third parties.\n9.\nIn the event either party determines that it is required by applicable law or regulation (including any stock exchange or trading market\nrequirements) to make any disclosure regarding a transaction involving the other party, such party will so advise the other party and\nshall consult and reasonably cooperate with the other party with respect to the timing, manner, and contents of such disclosure.\n10.\nFor a period from the date of this Agreement until January 31, 2017 (the “Restrictive Period”), the Interested Party agrees not to\n(a) propose to Pep Boys or any other person, any transaction between the Interested Party and Pep Boys and/or its security holders\ninvolving the acquisition of any of Pep Boys’ securities, businesses or assets, or (b) acquire, or assist, advise or encourage any other\nperson to acquire, directly or indirectly, control of Pep Boys or any of Pep Boys’ securities, businesses or assets, unless Pep Boys has\nconsented, in advance and in writing, to such action; provided that the foregoing shall\n3\nnot prohibit the Interested Party from making any offer or proposal that is consistent with, or is intended as supplement to or\nmodification of, any written proposal made by the Interested Party prior to the date of this Agreement and that is directed and disclosed\nsolely to the Chief Executive Officer, the General Counsel or the Board of Directors of Pep Boys. In accordance with the foregoing\nparagraph, Pep Boys hereby consents to the Interested Party having discussions and negotiations with any third-party and entering into\nagreements with any third-party, in each case related to the securities and/or assets of Pep Boys, so long as such third-party had\npreviously received Confidential Information from Pep Boys in connection with Pep Boys’ strategic alternatives review process\nannounced on June 30, 2015.\n11.\nWithout the prior written consent of the other party, until the earlier of (a) the consummation of a transaction between the parties and\n(b) January 31, 2017, each party agrees not to (x) solicit employees of the other party at or above the level of Vice President or those\nmanagement-level employees, in each case whom such party meets as part of the evaluation process or (y) hire or retain any such\nperson. Each party agrees that the restrictions set forth in the immediately preceding sentence shall not apply to (i) any general\nsolicitation for employment not specifically directed at employees of the other party (including by use of search firms), (ii) any\nemployee that has been terminated by the other party prior to commencement of employment discussions, or (iii) responding to (but not\npursuing or hiring) any employee of the other party who contacts such party at his or her own initiative without any prior direct\nsolicitation.\n12.\nThe Receiving Party acknowledges that the Confidential Information is of a special, unique and extraordinary character, and that a\nbreach of this Agreement by the Receiving Party will cause continuing and irreparable injury to the Disclosing Party for which\nmonetary damages would not be an adequate remedy. In the event of a breach of this Agreement by the Receiving Party, in addition to\nany other legal remedies available, the Disclosing Party shall have the right to seek injunctive or other equitable relief without any\nrequirement for the posting of any security or bond.\n13.\nNotwithstanding any provisions to the contrary contained herein: (i) Confidential Information shall not be shared with Federal-Mogul\nHoldings Corporation or its subsidiaries (“FDML”); (ii) FDML shall not be considered a subsidiary or affiliate of Icahn Enterprises L.P.\nfor purposes of this Agreement and shall not be restricted by any of the terms or provisions hereof; and (iii) if the confidentiality\nagreement between Pep Boys and Parent or its affiliates is terminated or amended to provide for any less restrictive terms, then this\nAgreement shall be similarly terminated or amended contemporaneously therewith.\n14.\nThis Agreement constitutes the entire understanding between the parties relative to the protection of information which may be\nexchanged pursuant to this Agreement in connection with the potential transaction contemplated hereunder and supersedes any and all\nprior agreements or understandings between the parties regarding such subject matter. The term of this Agreement (except where\notherwise stated as a shorter term) shall be from the date of this Agreement until July 31, 2017.\n4\n15.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New York. The parties hereto agree that\nthe sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement or the subject matter hereof\nshall be an appropriate federal or state court located in New York, New York. EACH OF THE PARTIES HEREBY WAIVES ITS\nRIGHT TO A JURY TRIAL IN CONNECTION WITH ANY SUCH LITIGATION.\n15.\nThis Agreement may be executed in counterparts and by facsimile.\n[Signature Page Follows]\n5\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written.\nICAHN ENTERPRISES L.P.\nTHE PEP BOYS MANNY, MOE & JACK\nIcahn Enterprises G.P. Inc., its general\nBy:\n/s/ Brian D. Zuckerman\npartner\nName: Brian D. Zuckerman\nTitle: SVP — General Counsel & Secretary\nBy:\n/s/ Keith Cozza\nName: Keith Cozza\nTitle:\nPresident and Chief Executive Officer\n[CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT]\n6	EX-99.(E)(2) 2 a2227016zex-99_e2.htm EX-99.(E)(2)\nExhibit (e)(2)\n>\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nAGREEMENT (this “Agreement”) is between The Pep Boys — Manny, Moe & Jack (on its own behalf and on behalf of its subsidiaries\nand affiliates, “Pep Boys™”) and Icahn Enterprises L.P. (on its own behalf and on behalf of its subsidiaries and controlled affiliates, “Interested\nParty”), dated December 8, 2015.\nWHEREAS, on December 7, 2015, Interested Party provided a proposal to acquire Pep Boys for $15.50 per share in cash (as set forth in Pep\nBoys filing with the Securities and Exchange Commission dated December 7, 2015), which Pep Boys Board of Directors determined on\nDecember 7, 2015, in accordance with its obligations under that certain Agreement and Plan of Merger, dated as of October 26, 2015 (the\n“Bridgestone Agreement”), by and among Pep Boys, Bridgestone Retail Operations, LL.C, a Delaware limited liability company (“Parent”), TAJ\nAcquisition Co., a Pennsylvania corporation and wholly-owned subsidiary of Parent, would reasonably be expected to result in a Superior\nProposal (as defined in the Bridgestone Agreement).\nWHEREAS, in accordance with Section 8.3(b) of the Bridgestone Agreement, Pep Boys is permitted to furnish information to or enter into\ndiscussions with Interested Party, subject to compliance with Section 8.3(b) of the Bridgestone Agreement, including the requirements that\n(i) Pep Boys provide notice to Parent of Pep Boys’ intent to furnish information to or enter into discussions with Interested Party (which Pep\nBoys provided to Parent on December 8, 2015), (ii) Pep Boys and the Interested Party enter into an Acceptable Confidentiality Agreement (as\ndefined in the Bridgestone Agreement), and (iii) Pep Boys promptly thereafter (but in any event within 24 hours) provide to Parent a copy of\nsuch Acceptable Confidentiality Agreement.\nWHEREAS, in accordance with Section 8.3 of the Bridgestone Agreement, Pep Boys is required to take certain actions and provide certain\ninformation to Parent with respect to its discussions with Interested Party and any proposed transaction.\nWHEREAS, the parties agree that, in order to assist Interested Party in considering a potential transaction with Pep Boys and in light of Pep\nBoys obligations under the Bridgestone Agreement, the parties desire to enter into this Agreement.\nNOW, THEREFORE, for and in consideration of the promises and mutual obligations contained herein, the parties, intending to be legally\nbound, hereby agree as follows:\n1. Each party on its own behalf (in such capacity, a “Receiving Party”) understands that they will receive certain Confidential Information\n(as defined below) from the other party (in such capacity, a “Disclosing Party”). “Confidential Information” includes any of the\nDisclosing Party’s trade secrets, proprietary rights, customer lists, financial, sales, inventory, operations, human resources, real estate\nand marketing data and any other information of the Disclosing Party which is marked “confidential” or “proprietary”\n \nand/or which the Receiving Party knows or, under all of the circumstances, should reasonably have known should be treated as\nconfidential and any analysis, reports or other information prepared or compiled by the Receiving Party which is based upon or derived\nfrom the information provided by the Disclosing Party. Confidential Information also includes the fact that the parties are considering a\npotential transaction and are engaging in discussions with respect thereto and any of the terms, conditions, or other facts with respect to\nany potential transaction, including the status thereof (the Confidential Information described in this sentence collectively, the\n“Transaction Information”).\n2. The Receiving Party agrees that (a) without the Disclosing Party’s prior written consent, or as otherwise expressly permitted herein, it\nwill not disclose Confidential Information to any third party and (b) it will not use or reproduce Confidential Information, except for the\npurpose of considering a potential transaction involving the Disclosing Party. Notwithstanding anything to the contrary set forth herein,\nPep Boys shall be permitted to disclose the Transaction Information to Parent and take actions as necessary in compliance with its\nobligations under the Bridgestone Agreement.\n3. The Receiving Party agrees that it will limit access to Confidential Information to those of its officers, directors, employees and\nprofessional advisors who have a need to know such Confidential Information in relation to assisting the Receiving Party in considering\na potential transaction with the Disclosing Party and who have been advised of the Receiving Party’s obligation of confidentiality\nhereunder and have been directed by the Receiving Party to comply therewith.\n4. The Receiving Party agrees that upon the written request of the Disclosing Party, it will return to the Disclosing Party (or destroy and\ncertify such destruction to the Disclosing Party) any and all written, electronic or tangible materials (including all copies) of\nConfidential Information in the Receiving Party’s possession. Notwithstanding the foregoing, the Receiving Party shall be permitted to\nretain (a) one copy of the Confidential Information in order to comply with any applicable law, court, regulation or regulatory authority\nor to comply with existing internal document retention policies and (b) electronic copies of the Confidential Information created\npursuant to standard archival or back-up procedures.\n \n10. Notwithstanding the foregoing provisions of this Agreement, information shall not be considered Confidential Information, nor subject\nto the obligations imposed by this Agreement if the Receiving Party demonstrates that the information:\na. was lawfully in the Receiving Party’s possession prior to the date of the disclosure of such information to the Receiving Party;\nb. was generally available to the public prior to the date of disclosure of such information to the Receiving Party;\nC. has become generally available to the public, except as a result of a breach of this Agreement;\n2\nd. was supplied to the Receiving Party without restriction by a third party who was under no obligation to the Disclosing Party to\nmaintain such information in confidence;\ne. was required to be disclosed by law; provided, that, prior to the disclosure of such information, the Receiving Party had\nprovided written notice of such legal requirement to the Disclosing Party for the purpose of allowing the Disclosing Party to\nseek a protective order preventing the disclosure of such information; or\nd. was or is independently developed by the Receiving Party without use of or reference to Confidential Information received\nfrom the Disclosing Party, as evidenced by existing documentation.\nThe Confidential Information shall be deemed the property of the Disclosing Party and the disclosure of Confidential Information\nhereunder by the Disclosing Party to the Receiving Party shall not be construed as granting to the Receiving Party any license or right of\nownership of any patents, trademarks, copyrights, intellectual property of the Disclosing Party or other Confidential Information. The\nDisclosing Party makes no representation or warranty as to the accuracy or completeness of the Confidential Information and,\naccordingly, shall not have any liability to the Receiving Party resulting from its use of the Confidential Information. Only those\nrepresentations or warranties made expressly in a definitive agreement, when, as, and if it is executed, and subject to such limitations\nand restrictions as may be specified in such agreement, will have any legal effect.\nAll Confidential Information shall he treated as confidential by the Receiving Party and subject to the restrictions and obligations\ncontained herein for a period following the date of this Agreement until July 31, 2017.\nNeither this Agreement nor the disclosure any Confidential Information shall (a) constitute or imply any promise or intention of the\nparties to consummate any transaction between them, nor (b) prohibit Pep Boys from discussing any potential business transactions with\nother third parties.\nIn the event either party determines that it is required by applicable law or regulation (including any stock exchange or trading market\nrequirements) to make any disclosure regarding a transaction involving the other party, such party will so advise the other party and\nshall consult and reasonably cooperate with the other party with respect to the timing, manner, and contents of such disclosure.\nFor a period from the date of this Agreement until January 31, 2017 (the “Restrictive Period”), the Interested Party agrees not to\n(a) propose to Pep Boys or any other person, any transaction between the Interested Party and Pep Boys and/or its security holders\ninvolving the acquisition of any of Pep Boys’ securities, businesses or assets, or (b) acquire, or assist, advise or encourage any other\nperson to acquire, directly or indirectly, control of Pep Boys or any of Pep Boys’ securities, businesses or assets, unless Pep Boys has\nconsented, in advance and in writing, to such action; provided that the foregoing shall\n3\n \n11. not prohibit the Interested Party from making any offer or proposal that is consistent with, or is intended as supplement to or\nmodification of, any written proposal made by the Interested Party prior to the date of this Agreement and that is directed and disclosed\nsolely to the Chief Executive Officer, the General Counsel or the Board of Directors of Pep Boys. In accordance with the foregoing\nparagraph, Pep Boys hereby consents to the Interested Party having discussions and negotiations with any third-party and entering into\nagreements with any third-party, in each case related to the securities and/or assets of Pep Boys, so long as such third-party had\npreviously received Confidential Information from Pep Boys in connection with Pep Boys’ strategic alternatives review process\nannounced on June 30, 2015.\nWithout the prior written consent of the other party, until the earlier of (a) the consummation of a transaction between the parties and\n(b) January 31, 2017, each party agrees not to (x) solicit employees of the other party at or above the level of Vice President or those\nmanagement-level employees, in each case whom such party meets as part of the evaluation process or (y) hire or retain any such\nperson. Each party agrees that the restrictions set forth in the immediately preceding sentence shall not apply to (i) any general\nsolicitation for employment not specifically directed at employees of the other party (including by use of search firms), (ii) any\nemployee that has been terminated by the other party prior to commencement of employment discussions, or (iii) responding to (but not\npursuing or hiring) any employee of the other party who contacts such party at his or her own initiative without any prior direct\nsolicitation.\n12.\n13.\n14.\nThe Receiving Party acknowledges that the Confidential Information is of a special, unique and extraordinary character, and that a\nbreach of this Agreement by the Receiving Party will cause continuing and irreparable injury to the Disclosing Party for which\nmonetary damages would not be an adequate remedy. In the event of a breach of this Agreement by the Receiving Party, in addition to\nany other legal remedies available, the Disclosing Party shall have the right to seek injunctive or other equitable relief without any\nrequirement for the posting of any security or bond.\nNotwithstanding any provisions to the contrary contained herein: (i) Confidential Information shall not be shared with Federal-Mogul\nHoldings Corporation or its subsidiaries (“FDML”); (ii) FDML shall not be considered a subsidiary or affiliate of Icahn Enterprises L.P.\nfor purposes of this Agreement and shall not be restricted by any of the terms or provisions hereof; and (iii) if the confidentiality\nagreement between Pep Boys and Parent or its affiliates is terminated or amended to provide for any less restrictive terms, then this\nAgreement shall be similarly terminated or amended contemporaneously therewith.\nThis Agreement constitutes the entire understanding between the parties relative to the protection of information which may be\nexchanged pursuant to this Agreement in connection with the potential transaction contemplated hereunder and supersedes any and all\nprior agreements or understandings between the parties regarding such subject matter. The term of this Agreement (except where\notherwise stated as a shorter term) shall be from the date of this Agreement until July 31, 2017.\n4\n \n15.\n15.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New York. The parties hereto agree that\nthe sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement or the subject matter hereof\nshall be an appropriate federal or state court located in New York, New York. EACH OF THE PARTIES HEREBY WAIVES ITS\nRIGHT TO A JURY TRIAL IN CONNECTION WITH ANY SUCH LITIGATION.\nThis Agreement may be executed in counterparts and by facsimile.\n[Signature Page Follows]\n5\n \nIN WITNESS WHEREQF, the parties have executed this Agreement as of the date and year first above written. ICAHN ENTERPRISES L.P. THE PEP BOYS MANNY, MOE & JACK\nIcahn Enterprises G.P. Inc., its general By: /s/ Brian D. Zuckerman\npartner Name: Brian D. Zuckerman\nBy:\nName:\nTitle:\nTitle: ~ SVP — General Counsel & Secretary\n/s/ Keith Cozza\nKeith Cozza\nPresident and Chief Executive Officer\n[CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT)]\n6\n	EX-99.(E)(2) 2 a2227016zex-99_e2.htm EX-99.(E)(2)\nExhibit (e)(2)\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nAGREEMENT (this "Agreement") is between The Pep Boys Manny, Moe & Jack (on its own behalf and on behalf of its subsidiaries\nand affiliates, "Pep Boys") and Icahn Enterprises L.P. (on its own behalf and on behalf of its subsidiaries and controlled affiliates, "Interested\nParty"), dated December 8, 2015.\nWHEREAS, on December 7, 2015, Interested Party provided a proposal to acquire Pep Boys for $15.50 per share in cash (as set forth in Pep\nBoys filing with the Securities and Exchange Commission dated December 7, 2015), which Pep Boys Board of Directors determined on\nDecember 7, 2015, in accordance with its obligations under that certain Agreement and Plan of Merger, dated as of October 26, 2015 (the\n"Bridgestone Agreement"), by and among Pep Boys, Bridgestone Retail Operations, LLC, a Delaware limited liability company ("Parent"), TAJ\nAcquisition Co., a Pennsylvania corporation and wholly-owned subsidiary of Parent, would reasonably be expected to result in a Superior\nProposal (as defined in the Bridgestone Agreement).\nWHEREAS, in accordance with Section 8.3(b) of the Bridgestone Agreement, Pep Boys is permitted to furnish information to or enter into\ndiscussions\nwith\nInterested Party, subject to compliance with Section 8.3(b) of the Bridgestone Agreement, including the requirements that\n(i) Pep Boys provide notice to Parent of Pep Boys' intent to furnish information to or enter into discussions with Interested Party (which Pep\nBoys provided to Parent on December 8, 2015), (ii) Pep Boys and the Interested Party enter into an Acceptable Confidentiality Agreement (as\ndefined in the Bridgestone Agreement), and (iii) Pep Boys promptly thereafter (but in any event within 24 hours) provide to Parent a copy of\nsuch Acceptable Confidentiality Agreement.\nWHEREAS, in accordance with Section 8.3 of the Bridgestone Agreement, Pep Boys is required to take certain actions and provide certain\ninformation to Parent with respect to its discussions with Interested Party and any proposed transaction.\nWHEREAS, the parties agree that, in order to assist Interested Party in considering a potential transaction with Pep Boys and in light of Pep\nBoys obligations under the Bridgestone Agreement, the parties desire to enter into this Agreement.\nNOW, THEREFORE, for and in consideration of the promises and mutual obligations contained herein, the parties, intending to be legally\nbound, hereby agree as follows:\n1.\nEach party on its own behalf (in such capacity, a "Receiving Party") understands that they will receive certain Confidential Information\n(as defined below) from the other party (in such capacity, a "Disclosing Party"). "Confidential Information" includes any of the\nDisclosing Party's trade secrets, proprietary rights, customer lists, financial, sales, inventory, operations, human resources, real estate\nand marketing data and any other information of the Disclosing Party which is marked "confidential" or "proprietary"\nand/or which the Receiving Party knows or, under all of the circumstances, should reasonably have known should be treated as\nconfidential and any analysis, reports or other information prepared or compiled by the Receiving Party which is based upon or derived\nfrom the information provided by the Disclosing Party. Confidential Information also includes the fact that the parties are considering a\npotential transaction and are engaging in discussions with respect thereto and any of the terms, conditions, or other facts with respect to\nany potential transaction, including the status thereof (the Confidential Information described in this sentence collectively, the\n"Transaction Information").\n2.\nThe Receiving Party agrees that (a) without the Disclosing Party's prior written consent, or as otherwise expressly permitted herein, it\nwill not disclose Confidential Information to any third party and (b) it will not use or reproduce Confidential Information, except for the\npurpose of considering a potential transaction involving the Disclosing Party. Notwithstanding anything to the contrary set forth herein,\nPep Boys shall be permitted to disclose the Transaction Information to Parent and take actions as necessary in compliance with its\nobligations under the Bridgestone Agreement.\n3.\nThe Receiving Party agrees that it will limit access to Confidential Information to those of its officers, directors, employees and\nprofessional advisors who have a need to know such Confidential Information in relation to assisting the Receiving Party in considering\na potential transaction with the Disclosing Party and who have been advised of the Receiving Party's obligation of confidentiality\nhereunder and have been directed by the Receiving Party to comply therewith.\n4.\nThe Receiving Party agrees that upon the written request of the Disclosing Party, it will return to the Disclosing Party (or destroy and\ncertify such destruction to the Disclosing Party) any and all written, electronic or tangible materials (including all copies) of\nConfidential Information in the Receiving Party's possession. Notwithstanding the foregoing, the Receiving Party shall be permitted to\nretain (a) one copy of the Confidential Information in order to comply with any applicable law, court, regulation or regulatory authority\nor to comply with existing internal document retention policies and (b) electronic copies of the Confidential Information created\npursuant to standard archival or back-up procedures.\n5.\nNotwithstanding the foregoing provisions of this Agreement, information shall not be considered Confidential Information, nor subject\nto the obligations imposed by this Agreement if the Receiving Party demonstrates that the information:\na.\nwas lawfully in the Receiving Party's possession prior to the date of the disclosure of such information to the Receiving Party;\nb.\nwas generally available to the public prior to the date of disclosure of such information to the Receiving Party;\nC.\nhas become generally available to the public, except as a result of a breach of this Agreement;\n2\nd.\nwas supplied to the Receiving Party without restriction by a third party who was under no obligation to the Disclosing Party to\nmaintain such information in confidence;\ne.\nwas required to be disclosed by law; provided, that, prior to the disclosure of such information, the Receiving Party had\nprovided written notice of such legal requirement to the Disclosing Party for the purpose of allowing the Disclosing Party to\nseek a protective order preventing the disclosure of such information; or\nd.\nwas or is independently developed by the Receiving Party without use of or reference to Confidential Information received\nfrom the Disclosing Party, as evidenced by existing documentation.\n6.\nThe Confidential Information shall be deemed the property of the Disclosing Party and the disclosure of Confidential Information\nhereunder by the Disclosing Party to the Receiving Party shall not be construed as granting to the Receiving Party any license or right of\nownership of any patents, trademarks, copyrights, intellectual property of the Disclosing Party or other Confidential Information. The\nDisclosing Party makes no representation or warranty as to the accuracy or completeness of the Confidential Information and,\naccordingly, shall not have any liability to the Receiving Party resulting from its use of the Confidential Information. Only those\nrepresentations or warranties made expressly in a definitive agreement, when, as, and if it is executed, and subject to such limitations\nand restrictions as may be specified in such agreement, will have any legal effect.\n7.\nAll Confidential Information shall he treated as confidential by the Receiving Party and subject to the restrictions and obligations\ncontained herein for a period following the date of this Agreement until July 31, 2017.\n8.\nNeither this Agreement nor the disclosure any Confidential Information shall (a) constitute or imply any promise or intention of the\nparties to consummate any transaction between them, nor (b) prohibit Pep Boys from discussing any potential business transactions with\nother third parties.\n9.\nIn the event either party determines that it is required by applicable law or regulation (including any stock exchange or trading market\nrequirements) to make any disclosure regarding a transaction involving the other party, such party will SO advise the other party and\nshall consult and reasonably cooperate with the other party with respect to the timing, manner, and contents of such disclosure.\n10.\nFor a period from the date of this Agreement until January 31, 2017 (the "Restrictive Period"), the Interested Party agrees not to\n(a) propose to Pep Boys or any other person, any transaction between the Interested Party and Pep Boys and/or its security holders\ninvolving the acquisition of any of Pep Boys' securities, businesses or assets, or (b) acquire, or assist, advise or encourage any other\nperson to acquire, directly or indirectly, control of Pep Boys or any of Pep Boys' securities, businesses or assets, unless Pep Boys has\nconsented, in advance and in writing, to such action; provided that the foregoing shall\n3\nnot prohibit the Interested Party from making any offer or proposal that is consistent with, or is intended as supplement to or\nmodification of, any written proposal made by the Interested Party prior to the date of this Agreement and that is directed and disclosed\nsolely to the Chief Executive Officer, the General Counsel or the Board of Directors of Pep Boys. In accordance with the foregoing\nparagraph, Pep Boys hereby consents to the Interested Party having discussions and negotiations with any third-party and entering into\nagreements with any third-party, in each case related to the securities and/or assets of Pep Boys, SO long as such third-party had\npreviously received Confidential Information from Pep Boys in connection with Pep Boys' strategic alternatives review process\nannounced on June 30, 2015.\n11.\nWithout the prior written consent of the other party, until the earlier of (a) the consummation of a transaction between the parties and\n(b) January 31, 2017, each party agrees not to (x) solicit employees of the other party at or above the level of Vice President or those\nmanagement-level employees, in each case whom such party meets as part of the evaluation process or (y) hire or retain any such\nperson. Each party agrees that the restrictions set forth in the immediately preceding sentence shall not apply to (i) any general\nsolicitation for employment not specifically directed at employees of the other party (including by use of search firms), (ii) any\nemployee that has been terminated by the other party prior to commencement of employment discussions, or (iii) responding to (but not\npursuing or hiring) any employee of the other party who contacts such party at his or her own initiative without any prior direct\nsolicitation.\n12.\nThe Receiving Party acknowledges that the Confidential Information is of a special, unique and extraordinary character, and that\na\nbreach of this Agreement by the Receiving Party will cause continuing and irreparable injury to the Disclosing Party for which\nmonetary damages would not be an adequate remedy. In the event of a breach of this Agreement by the Receiving Party, in addition\nto\nany other legal remedies available, the Disclosing Party shall have the right to seek injunctive or other equitable relief without any\nrequirement for the posting of any security or bond.\n13.\nNotwithstanding any provisions to the contrary contained herein: (i) Confidential Information shall not be shared with Federal-Mogul\nHoldings Corporation or its subsidiaries ("FDML"); (ii) FDML shall not be considered a subsidiary or affiliate of Icahn Enterprises\nL.P.\nfor purposes of this Agreement and shall not be restricted by any of the terms or provisions hereof; and (iii) if the confidentiality\nagreement between Pep Boys and Parent or its affiliates is terminated or amended to provide for any less restrictive terms, then this\nAgreement shall be similarly terminated or amended contemporaneously therewith.\n14.\nThis Agreement constitutes the entire understanding between the parties relative to the protection of information which may be\nexchanged pursuant to this Agreement in connection with the potential transaction contemplated hereunder and supersedes any and all\nprior agreements or understandings between the parties regarding such subject matter. The term of this Agreement (except where\notherwise stated as a shorter term) shall be from the date of this Agreement until July 31, 2017.\n4\n15.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New York. The parties hereto agree that\nthe sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement or the subject matter hereof\nshall be an appropriate federal or state court located in New York, New York. EACH OF THE PARTIES HEREBY WAIVES ITS\nRIGHT TO A JURY TRIAL IN CONNECTION WITH ANY SUCH LITIGATION.\n15.\nThis Agreement may be executed in counterparts and by facsimile.\n[Signature Page Follows]\n5\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written.\nICAHN ENTERPRISES L.P.\nTHE PEP BOYS MANNY, MOE & JACK\nIcahn Enterprises G.P. Inc., its general\nBy:\n/s/ Brian D. Zuckerman\npartner\nName:\nBrian D. Zuckerman\nTitle:\nSVP - General Counsel & Secretary\nBy:\n/s/ Keith Cozza\nName:\nKeith Cozza\nTitle:\nPresident and Chief Executive Officer\n[CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT]\n6	EX-99.(E)(2) 2 a2227016zex-99_e2.htm EX-99.(E)(2)\nExhibit (e)(2)\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nAGREEMENT (this “Agreement”) is between The Pep Boys – Manny, Moe & Jack (on its own behalf and on behalf of its subsidiaries\nand affiliates, “Pep Boys”) and Icahn Enterprises L.P. (on its own behalf and on behalf of its subsidiaries and controlled affiliates, “Interested\nParty”), dated December 8, 2015.\nWHEREAS, on December 7, 2015, Interested Party provided a proposal to acquire Pep Boys for $15.50 per share in cash (as set forth in Pep\nBoys filing with the Securities and Exchange Commission dated December 7, 2015), which Pep Boys Board of Directors determined on\nDecember 7, 2015, in accordance with its obligations under that certain Agreement and Plan of Merger, dated as of October 26, 2015 (the\n“Bridgestone Agreement”), by and among Pep Boys, Bridgestone Retail Operations, LLC, a Delaware limited liability company (“Parent”), TAJ\nAcquisition Co., a Pennsylvania corporation and wholly-owned subsidiary of Parent, would reasonably be expected to result in a Superior\nProposal (as defined in the Bridgestone Agreement).\nWHEREAS, in accordance with Section 8.3(b) of the Bridgestone Agreement, Pep Boys is permitted to furnish information to or enter into\ndiscussions with Interested Party, subject to compliance with Section 8.3(b) of the Bridgestone Agreement, including the requirements that\n(i) Pep Boys provide notice to Parent of Pep Boys’ intent to furnish information to or enter into discussions with Interested Party (which Pep\nBoys provided to Parent on December 8, 2015), (ii) Pep Boys and the Interested Party enter into an Acceptable Confidentiality Agreement (as\ndefined in the Bridgestone Agreement), and (iii) Pep Boys promptly thereafter (but in any event within 24 hours) provide to Parent a copy of\nsuch Acceptable Confidentiality Agreement.\nWHEREAS, in accordance with Section 8.3 of the Bridgestone Agreement, Pep Boys is required to take certain actions and provide certain\ninformation to Parent with respect to its discussions with Interested Party and any proposed transaction.\nWHEREAS, the parties agree that, in order to assist Interested Party in considering a potential transaction with Pep Boys and in light of Pep\nBoys obligations under the Bridgestone Agreement, the parties desire to enter into this Agreement.\nNOW, THEREFORE, for and in consideration of the promises and mutual obligations contained herein, the parties, intending to be legally\nbound, hereby agree as follows:\n1.\nEach party on its own behalf (in such capacity, a “Receiving Party”) understands that they will receive certain Confidential Information\n(as defined below) from the other party (in such capacity, a “Disclosing Party”). “Confidential Information” includes any of the\nDisclosing Party’s trade secrets, proprietary rights, customer lists, financial, sales, inventory, operations, human resources, real estate\nand marketing data and any other information of the Disclosing Party which is marked “confidential” or “proprietary”\nand/or which the Receiving Party knows or, under all of the circumstances, should reasonably have known should be treated as\nconfidential and any analysis, reports or other information prepared or compiled by the Receiving Party which is based upon or derived\nfrom the information provided by the Disclosing Party. Confidential Information also includes the fact that the parties are considering a\npotential transaction and are engaging in discussions with respect thereto and any of the terms, conditions, or other facts with respect to\nany potential transaction, including the status thereof (the Confidential Information described in this sentence collectively, the\n“Transaction Information”).\n2.\nThe Receiving Party agrees that (a) without the Disclosing Party’s prior written consent, or as otherwise expressly permitted herein, it\nwill not disclose Confidential Information to any third party and (b) it will not use or reproduce Confidential Information, except for the\npurpose of considering a potential transaction involving the Disclosing Party. Notwithstanding anything to the contrary set forth herein,\nPep Boys shall be permitted to disclose the Transaction Information to Parent and take actions as necessary in compliance with its\nobligations under the Bridgestone Agreement.\n3.\nThe Receiving Party agrees that it will limit access to Confidential Information to those of its officers, directors, employees and\nprofessional advisors who have a need to know such Confidential Information in relation to assisting the Receiving Party in considering\na potential transaction with the Disclosing Party and who have been advised of the Receiving Party’s obligation of confidentiality\nhereunder and have been directed by the Receiving Party to comply therewith.\n4.\nThe Receiving Party agrees that upon the written request of the Disclosing Party, it will return to the Disclosing Party (or destroy and\ncertify such destruction to the Disclosing Party) any and all written, electronic or tangible materials (including all copies) of\nConfidential Information in the Receiving Party’s possession. Notwithstanding the foregoing, the Receiving Party shall be permitted to\nretain (a) one copy of the Confidential Information in order to comply with any applicable law, court, regulation or regulatory authority\nor to comply with existing internal document retention policies and (b) electronic copies of the Confidential Information created\npursuant to standard archival or back-up procedures.\n5.\nNotwithstanding the foregoing provisions of this Agreement, information shall not be considered Confidential Information, nor subject\nto the obligations imposed by this Agreement if the Receiving Party demonstrates that the information:\na.\nwas lawfully in the Receiving Party’s possession prior to the date of the disclosure of such information to the Receiving Party;\nb.\nwas generally available to the public prior to the date of disclosure of such information to the Receiving Party;\nc.\nhas become generally available to the public, except as a result of a breach of this Agreement;\n2\nd.\nwas supplied to the Receiving Party without restriction by a third party who was under no obligation to the Disclosing Party to\nmaintain such information in confidence;\ne.\nwas required to be disclosed by law; provided, that, prior to the disclosure of such information, the Receiving Party had\nprovided written notice of such legal requirement to the Disclosing Party for the purpose of allowing the Disclosing Party to\nseek a protective order preventing the disclosure of such information; or\nd.\nwas or is independently developed by the Receiving Party without use of or reference to Confidential Information received\nfrom the Disclosing Party, as evidenced by existing documentation.\n6.\nThe Confidential Information shall be deemed the property of the Disclosing Party and the disclosure of Confidential Information\nhereunder by the Disclosing Party to the Receiving Party shall not be construed as granting to the Receiving Party any license or right of\nownership of any patents, trademarks, copyrights, intellectual property of the Disclosing Party or other Confidential Information. The\nDisclosing Party makes no representation or warranty as to the accuracy or completeness of the Confidential Information and,\naccordingly, shall not have any liability to the Receiving Party resulting from its use of the Confidential Information. Only those\nrepresentations or warranties made expressly in a definitive agreement, when, as, and if it is executed, and subject to such limitations\nand restrictions as may be specified in such agreement, will have any legal effect.\n7.\nAll Confidential Information shall he treated as confidential by the Receiving Party and subject to the restrictions and obligations\ncontained herein for a period following the date of this Agreement until July 31, 2017.\n8.\nNeither this Agreement nor the disclosure any Confidential Information shall (a) constitute or imply any promise or intention of the\nparties to consummate any transaction between them, nor (b) prohibit Pep Boys from discussing any potential business transactions with\nother third parties.\n9.\nIn the event either party determines that it is required by applicable law or regulation (including any stock exchange or trading market\nrequirements) to make any disclosure regarding a transaction involving the other party, such party will so advise the other party and\nshall consult and reasonably cooperate with the other party with respect to the timing, manner, and contents of such disclosure.\n10.\nFor a period from the date of this Agreement until January 31, 2017 (the “Restrictive Period”), the Interested Party agrees not to\n(a) propose to Pep Boys or any other person, any transaction between the Interested Party and Pep Boys and/or its security holders\ninvolving the acquisition of any of Pep Boys’ securities, businesses or assets, or (b) acquire, or assist, advise or encourage any other\nperson to acquire, directly or indirectly, control of Pep Boys or any of Pep Boys’ securities, businesses or assets, unless Pep Boys has\nconsented, in advance and in writing, to such action; provided that the foregoing shall\n3\nnot prohibit the Interested Party from making any offer or proposal that is consistent with, or is intended as supplement to or\nmodification of, any written proposal made by the Interested Party prior to the date of this Agreement and that is directed and disclosed\nsolely to the Chief Executive Officer, the General Counsel or the Board of Directors of Pep Boys. In accordance with the foregoing\nparagraph, Pep Boys hereby consents to the Interested Party having discussions and negotiations with any third-party and entering into\nagreements with any third-party, in each case related to the securities and/or assets of Pep Boys, so long as such third-party had\npreviously received Confidential Information from Pep Boys in connection with Pep Boys’ strategic alternatives review process\nannounced on June 30, 2015.\n11.\nWithout the prior written consent of the other party, until the earlier of (a) the consummation of a transaction between the parties and\n(b) January 31, 2017, each party agrees not to (x) solicit employees of the other party at or above the level of Vice President or those\nmanagement-level employees, in each case whom such party meets as part of the evaluation process or (y) hire or retain any such\nperson. Each party agrees that the restrictions set forth in the immediately preceding sentence shall not apply to (i) any general\nsolicitation for employment not specifically directed at employees of the other party (including by use of search firms), (ii) any\nemployee that has been terminated by the other party prior to commencement of employment discussions, or (iii) responding to (but not\npursuing or hiring) any employee of the other party who contacts such party at his or her own initiative without any prior direct\nsolicitation.\n12.\nThe Receiving Party acknowledges that the Confidential Information is of a special, unique and extraordinary character, and that a\nbreach of this Agreement by the Receiving Party will cause continuing and irreparable injury to the Disclosing Party for which\nmonetary damages would not be an adequate remedy. In the event of a breach of this Agreement by the Receiving Party, in addition to\nany other legal remedies available, the Disclosing Party shall have the right to seek injunctive or other equitable relief without any\nrequirement for the posting of any security or bond.\n13.\nNotwithstanding any provisions to the contrary contained herein: (i) Confidential Information shall not be shared with Federal-Mogul\nHoldings Corporation or its subsidiaries (“FDML”); (ii) FDML shall not be considered a subsidiary or affiliate of Icahn Enterprises L.P.\nfor purposes of this Agreement and shall not be restricted by any of the terms or provisions hereof; and (iii) if the confidentiality\nagreement between Pep Boys and Parent or its affiliates is terminated or amended to provide for any less restrictive terms, then this\nAgreement shall be similarly terminated or amended contemporaneously therewith.\n14.\nThis Agreement constitutes the entire understanding between the parties relative to the protection of information which may be\nexchanged pursuant to this Agreement in connection with the potential transaction contemplated hereunder and supersedes any and all\nprior agreements or understandings between the parties regarding such subject matter. The term of this Agreement (except where\notherwise stated as a shorter term) shall be from the date of this Agreement until July 31, 2017.\n4\n15.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New York. The parties hereto agree that\nthe sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement or the subject matter hereof\nshall be an appropriate federal or state court located in New York, New York. EACH OF THE PARTIES HEREBY WAIVES ITS\nRIGHT TO A JURY TRIAL IN CONNECTION WITH ANY SUCH LITIGATION.\n15.\nThis Agreement may be executed in counterparts and by facsimile.\n[Signature Page Follows]\n5\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written.\nICAHN ENTERPRISES L.P.\nTHE PEP BOYS MANNY, MOE & JACK\nIcahn Enterprises G.P. Inc., its general\nBy:\n/s/ Brian D. Zuckerman\npartner\nName: Brian D. Zuckerman\nTitle: SVP — General Counsel & Secretary\nBy:\n/s/ Keith Cozza\nName: Keith Cozza\nTitle:\nPresident and Chief Executive Officer\n[CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT]\n6
+90f2ce5e18de44f2910f05b365f2b13e.pdf	jurisdiction party term	EX-10 5 ex101licenseagr.txt ADDENDUM D Non-Disclosure Agreement MUTUAL NONDISCLOSURE AGREEMENT On this ____ day of ________________,\n_____,\n, a with offices at , and Genomics Integrated Wellness Systems, Inc., a Colorado corporation with offices at 21034 E Portland Pl. , Aurora, CO 80016,\nagree as follows: 1. In connection with discussions relating to a business opportunity of mutual interest and in the performance of any agreement between the\nparties (the "Opportunity"), the parties may find it beneficial to disclose to each other certain Confidential Information (as defined below). A party disclosing\nConfidential Information (as defined below) is a "Disclosing Party" and a party receiving Confidential Information (as defined below) is a "Receiving Party". As\nused in this Agreement, "Confidential Information" means all confidential or proprietary information in tangible or intangible form (including, without limitation,\nfinancial information, computer programs, code, software, technical drawings, algorithms, protocols, printing specifications, technical expertise, know-how,\nformulas, processes, ideas, inventions (whether patentable or not), schematics, reports, ticket test results, charts, graphs, electrical measurement readings, and\ntechnical, business and product development plans and strategies); information disclosed in circumstances of confidence; or information which would be\nunderstood by like parties exercising reasonable business judgment at the time of disclosure to be proprietary which is disclosed to or otherwise acquired by the\nReceiving Party, but does not include information that: (a) is already known to the Receiving Party prior to the date of disclosure; (b) is or becomes generally\nknown to the public domain through no violation of this Agreement by the Receiving Party; (c) is received from an unaffiliated third party without an obligation of\nnondisclosure or breach of an obligation of confidentiality to the Disclosing Party; or (d) is independently developed by the Receiving Party by personnel who\nhave not had access to the Confidential Information. 2 . With respect to Confidential Information of the Disclosing Party, the Receiving Party shall: (a) hold the\nConfidential Information in confidence and protect it in accordance with the same degree of care with which it protects its own Confidential Information of like\nimportance which it does not wish to disclose, but in no event less than reasonable care; (b) use the Confidential Information only in connection with the\ndiscussions or the performance of any agreement between the parties or as may be expressly approved by the Disclosing Party in writing; (c) except in the\nnormal anticipated use thereof, not copy or otherwise duplicate the Confidential Information, or knowingly allow anyone else to copy or otherwise duplicate any of\nthe Confidential Information then under its control without the Disclosing Party's prior written approval. The Receiving Party shall not remove any confidential,\nproprietary or similar notice from the Confidential Information; (d) restrict disclosure of the Confidential Information solely to those employees with a need to know,\nand not disclose it to any other parties; (e) require that all employees given access to the Confidential Information agree to maintain the confidentiality thereof,\nand otherwise comply with the provisions hereof; (f) perform no reverse engineering or any other unauthorized testing or analysis upon such Confidential\nInformation; and (g) upon request of the Disclosing Party, immediately return any and all Confidential Information to the Disclosing Party or provide certification of\nits destruction by an officer of the Receiving Party. 3 . A Receiving Party may disclose Confidential Information of a Disclosing Party if, and to the extent that, in\nthe opinion of counsel, such disclosure is required by law, in which case the Receiving Party shall promptly notify the Disclosing Party of the reasons for and\nnature of the proposed disclosure so that the Disclosing Party may take such action as it deems necessary. 4. Each party shall be entitled at any time and without\nnotice to the other to negotiate, disclose and otherwise deal in any manner and for any purpose with third parties regarding its own Confidential Information. 5 .\nNothing in this Agreement shall require or obligate, or be deemed to require or obligate, either party in any manner to engage in any business relationship at all\nwith the other party. Nothing in this Agreement grants, or shall be deemed to grant, to either party any authority or agency of kind or manner to act in any way in\nthe other party's name or behalf, and neither party shall hold itself out to be acting in such manner or to possess such authority. 6 . All Confidential Information will\nremain the exclusive property of the Disclosing Party. Nothing contained in this Agreement shall be construed as granting or conferring, whether by sale, license\nor otherwise, to a Receiving Party any right, title or interest in any Confidential Information disclosed, nor in any of the patents, trademarks or copyrights of the\nDisclosing Party. 7 . The provisions hereof shall inure to and be binding upon the successors and assigns of the parties hereto; provided, however that no\ndisclosure of Confidential Information may be made to any successor or assign of a Receiving Party without the written consent of the Disclosing Party. 8 . This\nAgreement shall be governed by the laws of the State of Colorado and any legal action arising from an alleged violation of this Agreement shall be conducted in\nthe United States District Court for the District of Colorado or the state court of Jefferson County, Colorado. 9. Except for the obligations of Paragraph 2 of this\nAgreement that shall survive for five (5) years from the date hereof and with respect to Confidential Information deemed a trade secret at law, for so long as such\ninformation remains a trade secret beyond said five (5) year period, all obligations under this Agreement shall terminate upon the expiration of two (2) years from\nthe date hereof. 10. This document represents the full and complete agreement of the parties with respect to the use and confidentiality of the Confidential\nInformation and supersedes all prior communications, agreements or proposals. If any provision of this Agreement is found to be illegal or unenforceable, the\nother provisions shall remain effective and enforceable to the greatest extent permitted by law. 11. Each party understands and agrees that its breach or\nthreatened breach of this Agreement will cause irreparable injury to the other party and that money damages will not provide an adequate remedy for such breach\nor threatened breach, and both parties hereby agree that, in the event of such a breach or threatened breach, the non breaching party will also be entitled, without\nthe requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance. COMPANY NAME GENOMICS\nINTEGRATED WELLNESS SYSTEMS, INC. By: __________________________ By: ______________________ Name: _______________________ Name:\n_______________________\nTitle: ________________________ Title: __________________	EX-lO 5 exlOllicenseagr.txtADDE N DU M D Non-Disclosure Agreement MUTUAL NO N DISC LOSU RE AG R E E M E NT On this ____\n_____ , , a with offices at, and Genomics Integrated Wellness Systems, Inc., a Colorado corporation with offices at21034 E Portland Pl., Aurora, CO 80016,\nagree as follows: 1. In connection with discussions relating to a business opportunity of mutual interest and in the performance of any agreement between the\nparties (the "Opportunity"), the parties may find it beneficial to disclose to each other certain Confidential Information (as defined below). A party disclosing\nConfidential Information (as defined below) is a "Disclosing Party" and a party receiving Confidential Information (as defined below) is a "Receiving Party". As\nused in this Agreement, "Confidential Information" means all confidential or proprietary information in tangible or intangible form (including, without limitation,\nfinancial information, computer programs, code, software, technical drawings, algorithms, protocols, printing specifications, technical expertise, know-how,\nformulas, processes, ideas, inventions (whether patentable or not), schematics, repors, ticket test results, charts, graphs, electrical measurement readings, and\ntechnical, business and productdevelopment plans and strategies); information disclosed in circumstances of confidence; or information which would be\nunderstood by like parties exercising reasonable business judgment atthe time of disclosure to be proprietary which is disclosed to or othenNise acquired by the\nReceiving Party, butdoes not include information that: (a) is already known to the Receiving Party prior to the date ofdisclosure; (b) is or becomes generally\nknown to the public domain through no violation of this Agreement by the Receiving Party; (c) is received from an unaffiliated third party without an obligation of\nnondisclosure or breach of an obligation ofconfidentiality to the Disclosing Party; or (d) is independently developed by the Receiving Party by personnel who\nhave nothad access to the Confidential Information. 2. With respectto Confidential Information ofthe Disclosing Party, the Receiving Party shall: (a) hold the\nConfidential Information in confidence and protect it in accordance with the same degree ofcare with which it protects is own Confidential Information of like\nimportance which it does notwish to disclose, but in no event less than reasonable care; (b) use the Confidential Information only in connection with the\ndiscussions or the performance of any agreement between the parties or as may be expressly approved by the Disclosing Party in writing; (c) except in the\nnormal anticipated use thereof, not copy or othenNise duplicate the Confidential Information, or knowingly allow anyone else to copy or othenNise duplicate any of\nthe Confidential Information then under is control without the Disclosing Party's prior written approval. The Receiving Party shall not remove any confidential,\nproprietary or similar notice from the Confidential Information; (d) restrictdisclosure of the Confidential Information solely to those employees with a need to know,\nand not disclose it to any other parties; (e) require that all employees given access to the Confidential Information agree to maintain the confidentiality thereof,\nand otherwise comply with the provisions hereof; (fi perform no reverse engineering or any other unauthorized testing or analysis upon such Confidential\nInformation; and (g) upon requestofthe Disclosing Party, immediately return any and all Confidential Information to the Disclosing Party or provide certification of\nis destruction by an officer ofthe Receiving Party. 3. A Receiving Party may disclose Confidential Information of a Disclosing Party if, and to the extentthat, in\nthe opinion ofcounsel, such disclosure is required by law, in which case the Receiving Party shall promptly notify the Disclosing Party ofthe reasons for and\nnature of the proposed disclosure so that the Disclosing Party may take such action as it deems necessary. 4. Each party shall be entitled at any time and without\nnotice to the other to negotiate, disclose and otherwise deal in any manner and for any purpose with third parties regarding is own Confidential Information. 5.\nNothing in this Agreementshall require or obligate, or be deemed to require or obligate, either party in any manner to engage in any business relationship at all\nwith the other party. Nothing in this Agreementgrans, or shall be deemed to grant, to either party any authority or agency of kind or manner to act in any way in\nthe other party's name or behalf, and neither party shall hold iselfout to be acting in such manner or to possess such authority. 6. All Confidential Information will\nremain the exclusive property of the Disclosing Party. Nothing contained in this Agreementshall be construed as granting or conferring, whether by sale, license\nor othenNise, to a Receiving Party any right, title or interest in any Confidential Information disclosed, nor in any of the patents, trademarks or copyrights ofthe\nDisclosing Party. 7. The provisions hereofshall inure to and be binding upon the successors and assigns ofthe parties hereto; provided, however thatno\ndisclosure of Confidential Information may be made to any successor or assign of a Receiving Party withoutthe written consentofthe Disclosing Party. 8. This\nAgreementshall be governed by the laws of the State ofColorado and any legal action arising from an alleged violation of this Agreement shall be conducted in\nthe United States DistrictCourtfor the District of Colorado or the state courtofJ efferson County, Colorado. 9. Except for the obligations of Paragraph 2 ofthis\nAgreement thatshall sun/ive for five (5) years from the date hereof and with respectto Confidential Information deemed a trade secret at law, for so long as such\ninformation remains a trade secret beyond said five (5) year period, all obligations under this Agreementshall terminate upon the expiration oftwo (2) years from\nthe date hereof. 10. This document represents the full and complete agreement of the parties with respectto the use and confidentiality of the Confidential\nInformation and supersedes all prior communications, agreemens or proposals. If any provision of this Agreement is found to be illegal or unenforceable, the\nother provisions shall remain effective and enforceable to the greatestextent permitted by law. 11. Each party understands and agrees that is breach or\nthreatened breach of this Agreement will cause irreparable injury to the other party and that money damages will not provide an adequate remedy for such breach\nor threatened breach, and both parties hereby agree that, in the event ofsuch a breach or threatened breach, the non breaching party will also be entitled, without\nthe requirementof posting a bond or other security, to equitable relief, including injunctive relief and specific performance. COMPANY NAME GE NOMICS\nINTEGRATED WELLNESS SYSTEMS,|NC.By: __________________________ By: ______________________ Name: _______________________ Name:\nTitle: Title:\nday of ,	EX-10 5 exl0llicenseagr.txt ADDENDUM D Non-Disclosure Agreement MUTUAL NONDISCLOSURE AGREEMENT On this\nday of\na with offices at, and Genomics Integrated Wellness ystems, Inc., a Colorado corporation with offices at 21034 E Portland PI., Aurora, Co 80016,\nagree as follows: 1. In connection with discussions relating to a business opportunity of mutual interest and in the performance of any agreement between the\nparties (the "Opportunity"), the parties may find it beneficial to disclose to each other certain Confidential Information (as defined below). A party disclosing\nConfidential Information (as defined below is a "Disclosing Party" and a party receiving Confidential Information (as defined below) is a "Receiving Party".\nAs\nused in this Agreement, "Confidential Information" means all confidential or proprietary information in tangible or intangible form (including, without limitation,\nfinancial information, computer programs, code, software, technical drawings, algorithms, protocols, printing specifications, technical expertise, know-how,\nformulas, processes, ideas, inventions (whether patentable or not), schematics, reports, ticket test results, charts, graphs, electrical measurement readings, and\ntechnical, business and product development plans and strategies); information disclosed in circumstances of confidence; or information which would be\nunderstood by like parties exercising reasonable business judgment at the time of disclosure to be proprietary which is disclosed to or otherwise acquired by the\nReceiving Party, but does not include information that: (a) is already known to the eceiving P arty prior to the date of disclosure; (b) is or becomes generally\nknown to the public domain through no violation of this Agreement by the Receiving Party; (c) is received from an unaffiliated third party without an obligation of\nnondisclosure or breach of an obligation of confidentiality to the Disclosing Party; or (d) is independently developed by the Receiving arty by personnel who\nhave not had access to the Confidential Information. 2. With respect to Confidential Information of the Disclosing Party, the R eceiving Party shall: (a) hold the\nConfidential Information in confidence and protect it in accordance with the same degree of care with which it protects its own Confidential Information of\nlike\nimportance which it does not wish to disclose, but in no event less than reasonable care; (b) use the Confidential Information only in connection with the\ndiscussions or the performance of any agreement between the parties or as may be expressly approved by the Disclosing Party in writing; (c) except in the\nnormal anticipated use thereof, not copy or otherwise duplicate the Confidential Information, or knowingly allow anyone else to copy or otherwise duplicate any of\nthe Confidential Information then under its control without the Disclosing arty's prior written approval. The Receiving Party shall not remove any confidential,\nproprietary or similar notice from the Confidential Information; (d) restrict disclosure of the Confidential Information solely to those employees with a need to know,\nand not disclose it to any other parties; (e) require that all employees given access to the Confidential Information agree to maintain the confidentiality thereof,\nand otherwise comply with the provisions hereof; (f) perform no reverse engineering or any other unauthorized testing or analysis upon such Confidential\nInformation; and (g) upon request of the Disclosing Party, immediately return any and all Confidential Information to the Disclosing Party or provide certification of\nits destruction by an officer of the R eceiving arty. 3. A eceiving arty may disclose Confidential Information of a Disclosing Party if, and to the extent that, in\nthe opinion of counsel, such disclosure is required by law, in which case the Receiving Party shall promptly notify the Disclosing Party of the reasons for and\nnature of the proposed disclosure so that the Disclosing Party may take such action as it deems necessary. 4. E ach party shall be entitled at any time and without\nnotice to the other to negotiate, disclose and otherwise deal in any manner and for any purpose with third parties regarding its own Confidential Information. 5.\nNothing in this Agreement shall require or obligate, or be deemed to require or obligate, either party in any manner to engage in any business relationship at all\nwith the other party. Nothing in this Agreement grants, or shall be deemed to grant, to either party any authority or agency of kind or manner to act in any way in\nthe other party's name or behalf, and neither party shall hold itself out to be acting in such manner or to possess such authority. 6. All Confidential Information will\nremain the exclusive property of the Disclosing Party. Nothing contained in this Agreement shal be construed as granting or conferring, whether by sale, license\nor\notherwise, to a Receiving Party any right, title or interest in any Confidential Information disclosed, nor in any of the patents, trademarks or copyrights of the\nDisclosing Party. 7. The provisions hereof shall inure to and be binding upon the successors and assigns of the parties hereto; provided, however that no\ndisclosure of Confidential Information may be made to any successor or assign of a Receiving arty without the written consent of the Disclosing Party. 8. This\nAgreement shal be governed by the laws of the State of Colorado and any legal action arising from an alleged violation of this Agreement shal be conducted in\nthe United States District Court for the District of Colorado or the state court of efferson County, Colorado. 9. Except for the obligations of Paragraph 2 of this\nAgreement that shall survive for five (5) years from the date hereof and with respect to Confidential Information deemed a trade secret at law, for so long as such\ninformation remains a trade secret beyond said five (5) year period, all obligations under this Agreement shall terminate upon the expiration of two (2) years from\nthe date hereof. 10. This document represents the full and complete agreement of the parties with respect to the use and confidentiality of the Confidential\nInformation and supersedes all prior communications, agreements or proposals. If any provision of this Agreement is found to be illegal or unenforceable, the\nother provisions shal remain effective and enforceable to the greatest extent permitted by law. 11. Each party understands and agrees that its breach or\nthreatened breach of this Agreement wil cause irreparable injury to the other party and that money damages will not provide an adequate remedy for such breach\nor threatened breach, and both parties hereby agree that, in the event of such a breach or threatened breach, the non breaching party will also be entitled, without\nthe requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance. COMPANY NAME GENOMICS\nINTEGRATED WELLNESS SYSTEMS, INC. By:\nBy:\nName:\nName:\nTitle:\nTitle:	EX-10 5 ex101licenseagr.txt ADDENDUM D Non-Disclosure Agreement MUTUAL NONDISCLOSURE AGREEMENT On this ____ day of ________________,\n_____,\n, a with offices at , and Genomics Integrated Wellness Systems, Inc., a Colorado corporation with offices at 21034 E Portland Pl. , Aurora, CO 80016,\nagree as follows: 1. In connection with discussions relating to a business opportunity of mutual interest and in the performance of any agreement between the\nparties (the "Opportunity"), the parties may find it beneficial to disclose to each other certain Confidential Information (as defined below). A party disclosing\nConfidential Information (as defined below) is a "Disclosing Party" and a party receiving Confidential Information (as defined below) is a "Receiving Party". As\nused in this Agreement, "Confidential Information" means all confidential or proprietary information in tangible or intangible form (including, without limitation,\nfinancial information, computer programs, code, software, technical drawings, algorithms, protocols, printing specifications, technical expertise, know-how,\nformulas, processes, ideas, inventions (whether patentable or not), schematics, reports, ticket test results, charts, graphs, electrical measurement readings, and\ntechnical, business and product development plans and strategies); information disclosed in circumstances of confidence; or information which would be\nunderstood by like parties exercising reasonable business judgment at the time of disclosure to be proprietary which is disclosed to or otherwise acquired by the\nReceiving Party, but does not include information that: (a) is already known to the Receiving Party prior to the date of disclosure; (b) is or becomes generally\nknown to the public domain through no violation of this Agreement by the Receiving Party; (c) is received from an unaffiliated third party without an obligation of\nnondisclosure or breach of an obligation of confidentiality to the Disclosing Party; or (d) is independently developed by the Receiving Party by personnel who\nhave not had access to the Confidential Information. 2 . With respect to Confidential Information of the Disclosing Party, the Receiving Party shall: (a) hold the\nConfidential Information in confidence and protect it in accordance with the same degree of care with which it protects its own Confidential Information of like\nimportance which it does not wish to disclose, but in no event less than reasonable care; (b) use the Confidential Information only in connection with the\ndiscussions or the performance of any agreement between the parties or as may be expressly approved by the Disclosing Party in writing; (c) except in the\nnormal anticipated use thereof, not copy or otherwise duplicate the Confidential Information, or knowingly allow anyone else to copy or otherwise duplicate any of\nthe Confidential Information then under its control without the Disclosing Party's prior written approval. The Receiving Party shall not remove any confidential,\nproprietary or similar notice from the Confidential Information; (d) restrict disclosure of the Confidential Information solely to those employees with a need to know,\nand not disclose it to any other parties; (e) require that all employees given access to the Confidential Information agree to maintain the confidentiality thereof,\nand otherwise comply with the provisions hereof; (f) perform no reverse engineering or any other unauthorized testing or analysis upon such Confidential\nInformation; and (g) upon request of the Disclosing Party, immediately return any and all Confidential Information to the Disclosing Party or provide certification of\nits destruction by an officer of the Receiving Party. 3 . A Receiving Party may disclose Confidential Information of a Disclosing Party if, and to the extent that, in\nthe opinion of counsel, such disclosure is required by law, in which case the Receiving Party shall promptly notify the Disclosing Party of the reasons for and\nnature of the proposed disclosure so that the Disclosing Party may take such action as it deems necessary. 4. Each party shall be entitled at any time and without\nnotice to the other to negotiate, disclose and otherwise deal in any manner and for any purpose with third parties regarding its own Confidential Information. 5 .\nNothing in this Agreement shall require or obligate, or be deemed to require or obligate, either party in any manner to engage in any business relationship at all\nwith the other party. Nothing in this Agreement grants, or shall be deemed to grant, to either party any authority or agency of kind or manner to act in any way in\nthe other party's name or behalf, and neither party shall hold itself out to be acting in such manner or to possess such authority. 6 . All Confidential Information will\nremain the exclusive property of the Disclosing Party. Nothing contained in this Agreement shall be construed as granting or conferring, whether by sale, license\nor otherwise, to a Receiving Party any right, title or interest in any Confidential Information disclosed, nor in any of the patents, trademarks or copyrights of the\nDisclosing Party. 7 . The provisions hereof shall inure to and be binding upon the successors and assigns of the parties hereto; provided, however that no\ndisclosure of Confidential Information may be made to any successor or assign of a Receiving Party without the written consent of the Disclosing Party. 8 . This\nAgreement shall be governed by the laws of the State of Colorado and any legal action arising from an alleged violation of this Agreement shall be conducted in\nthe United States District Court for the District of Colorado or the state court of Jefferson County, Colorado. 9. Except for the obligations of Paragraph 2 of this\nAgreement that shall survive for five (5) years from the date hereof and with respect to Confidential Information deemed a trade secret at law, for so long as such\ninformation remains a trade secret beyond said five (5) year period, all obligations under this Agreement shall terminate upon the expiration of two (2) years from\nthe date hereof. 10. This document represents the full and complete agreement of the parties with respect to the use and confidentiality of the Confidential\nInformation and supersedes all prior communications, agreements or proposals. If any provision of this Agreement is found to be illegal or unenforceable, the\nother provisions shall remain effective and enforceable to the greatest extent permitted by law. 11. Each party understands and agrees that its breach or\nthreatened breach of this Agreement will cause irreparable injury to the other party and that money damages will not provide an adequate remedy for such breach\nor threatened breach, and both parties hereby agree that, in the event of such a breach or threatened breach, the non breaching party will also be entitled, without\nthe requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance. COMPANY NAME GENOMICS\nINTEGRATED WELLNESS SYSTEMS, INC. By: __________________________ By: ______________________ Name: _______________________ Name:\n_______________________\nTitle: ________________________ Title: __________________
+9101f93224e7b92bb085724aea21cf6f.pdf	effective_date jurisdiction party term	EX-99.(E)(5) 5 d309035dex99e5.htm EXHIBIT (E)(5)\nExhibit (e)(5)\nMUTUAL NON-DISCLOSURE AGREEMENT\nEffective Date: July 26, 2016\nApplied Micro Circuits Corporation, a Delaware corporation with\nits principal place of business located at 4555 Great America\nParkway, Santa Clara, California 95054, USA, on behalf of itself and\nits Affiliates (collectively, “APM”), and MACOM Technology\nSolutions Inc., with its principal place of business located at 100\nChelmsford Street, Lowell, MA 01851, on behalf of itself and its\nAffiliates (collectively, “Company”), hereby enter into this Mutual\nNon-Disclosure Agreement (“Agreement”), as follows:\n1. Definitions:\n“Affiliate” of a Party means an entity that, directly or indirectly,\ncontrols, is controlled by, or is under common control with that Party,\nwhere “control” means ownership or control of more than fifty\npercent (50%) of the voting power of securities or interests in the\nentity controlled.\n“Confidential Information” means non-public, confidential\nand/or proprietary information disclosed by a Party to the other Party\n(or to the other Party’s approved contractors, agents and advisors),\nincluding but not limited to business, marketing, and technical plans;\nstrategies; employees; financial information, analyses, and forecasts;\nintellectual property and/or the subject matter thereof; information\nconcerning existing and future products and services; and the\nexistence of this Agreement and the proposed potential business\nrelationship or transaction between the Parties to which this\nAgreement relates.\n“Discloser” means a Party disclosing Confidential Information\npursuant to this Agreement.\n“Party” means either APM or Company.\n“Purpose” means the evaluation of a potential business\ntransaction between the Parties and the undertaking of such\ntransaction.\n“Recipient” means a Party receiving Confidential Information\npursuant to this Agreement, including its directors, employees,\ncontractors, agents, and advisors.\n2. Term: This Agreement shall commence upon the Effective Date\nand shall remain in effect for one (1) year thereafter, unless\nterminated earlier (“Term”). Recipient shall not disclose, and shall\nprotect against disclosure of, Confidential Information from the date\nof disclosure through three (3) years after the end of the Term\n(“Confidentiality Period”). Any Confidential Information disclosed\nprior to the Effective Date shall be accorded the same protection as\nConfidential Information disclosed during the Term. Either Party may\nterminate this Agreement at any time without cause upon written\nnotice to the other Party; however, all obligations of confidentiality\nand related covenants shall survive termination or expiration of this\nAgreement for the duration of the Confidentiality Period.\n3. Use of Confidential Information: Recipient shall have the right\nto make use of Confidential Information solely during the Term and\nsolely for the Purpose, to the extent that this Agreement is not\nsuperseded by a subsequent agreement that governs the exchange of\nConfidential Information. Notwithstanding the foregoing, Company\nwill not, without the prior written consent of APM, discuss with any\nthird party the potential opportunity to participate with Company in\n4. Care of Confidential Information: Recipient shall protect\nConfidential Information by using the same degree of care to prevent\nthe unauthorized use, dissemination, or publication of such\nConfidential Information as Recipient uses to protect its own\nconfidential information of a like nature, but no less than a\nreasonable degree of care. A Party will not give its directors,\nemployees, contractors, agents, and advisors access to Confidential\nInformation received from a Discloser, or approve any such persons\nfor receipt of Confidential Information directly from the Discloser,\nuntil such Party has ensured that the Recipient is aware of this\nAgreement and is under an obligation to honor it.\n5. Information That Is Covered: Recipient shall have an obligation\nto protect only that Confidential Information which either (a) is\nmarked, identified as, or otherwise acknowledged to be confidential\nat the time of disclosure to Recipient, or (b) should reasonably be\nexpected to be considered confidential or proprietary based upon the\nnature of the information and the circumstances of disclosure,\nincluding but not limited to information that may come to Recipient’s\nknowledge as a result of visiting any of the facilities of Discloser.\nConfidential Information shall be disclosed to or shared among other\nRecipients solely on a need to know basis. Copies of Confidential\nInformation shall only be made by Recipient as necessary for the\nPurpose, and any copies made by Recipient of any Confidential\nInformation shall be labeled or identified as confidential, proprietary,\nor the like, and shall be subject to all terms and provisions of this\nAgreement.\n6. Exclusions: Recipient shall have no duty to protect against\ndisclosure of information that: (a) was rightfully in Recipient’s\npossession before receipt from Discloser, as substantiated by written\nrecords or documentation of Recipient; (b) is or becomes a matter of\npublic knowledge through no fault of Recipient; (c) is rightfully\nreceived by Recipient from a third person without a duty of\nconfidentiality; (d) is independently developed by Recipient, as\nsubstantiated by written records or other documentation of Recipient;\n(e) is disclosed under requirement of law or court order, provided that\nRecipient (i) shall only disclose that portion of the Confidential\nInformation that is legally required; (ii) shall have made a reasonable\neffort to prevent, obtain relief from and/or obtain protective orders\nwith respect to such disclosure requirements, and (iii) shall have\npromptly notified Discloser of the existence of any such disclosure\nrequirement so as to afford Discloser adequate opportunity to do\nlikewise; or (f) is disclosed by Recipient with Discloser ’s prior\nwritten approval.\n7. Warranty: Each Discloser warrants that it has the right to make\nthe disclosures made pursuant to this Agreement. NO OTHER\nWARRANTIES ARE MADE BY EITHER PARTY UNDER\nTHIS AGREEMENT. ANY INFORMATION EXCHANGED\nUNDER THIS AGREEMENT IS PROVIDED “AS IS”.\n8. Rights: Confidential Information is and shall remain the property\nof Discloser along with all associated intellectual property rights\nowned by Discloser. Neither the disclosure of Confidential\nInformation, the expiration of the duty to protect from disclosure, or\nanything else contained in this Agreement (including, without\nlimitation, the right to use Confidential Information as set forth\nabove) shall be construed as granting or conferring any right or\nlicense under any patent, trade secret, copyright, or other intellectual\nproperty right of any Discloser. Neither Party shall reverse engineer,\ndisassemble, or decompile any prototypes, software or other tangible\nobjects which constitute or embody the other Party’s Confidential\nInformation.\n1\nconnection with implementing the Purpose or solicit from any third\nparty any equity or debt financing assistance relating to the Purpose.\nUpon the written request of Discloser, Recipient shall promptly\nreturn all Confidential Information received from Discloser, together\nwith all copies, or, if requested by Discloser, certify that all such\nConfidential Information, together with all copies, has been\ndestroyed.\nThe Parties agree to the terms and conditions of this Mutual Non-Disclosure Agreement effective as of the Effective Date first above written.\nApplied Micro Circuits Corporation\nMACOM Technology Solutions Inc.\nBy:\n/s/ Paul L. Alpern\nBy:\n/s/ Karen Hanlon\nPrinted Name: Paul L. Alpern\nPrinted Name: Karen Hanlon\nTitle:\nAssociate General Counsel\nTitle:\nContracts Manager\nDate:\nJuly 27, 2016\nDate:\n7-27-2016\n2\n9. Material Non-Public Information: By executing and delivering\nthis Agreement, each Party confirms to the other that it is aware and\nthat its representatives have been advised that the Federal and state\nsecurities laws of the United States prohibit any person who\npossesses material, non-public information about a company from\npurchasing or selling securities of such company.\n10. Additional Covenants: In consideration of and as a condition to\nthe exchange of Confidential Information hereunder, the Parties agree\nthat each Recipient and its Affiliates will not, without the prior\nwritten consent of Discloser, for a period of 12 months from the\nEffective Date, directly or indirectly solicit or cause to be solicited\nfor employment any current employee of Discloser or any of its\nAffiliates of whom Recipient first learned of pursuant to disclosures\nmade under, or activity conducted pursuant to, this Agreement;\nprovided, however, that the foregoing restriction will not apply or\nrestrict any covered employees from applying or responding to any\nsolicitation directed at the public in general, nor will it prohibit any\nRecipient from considering or hiring for employment persons who\nrespond to a solicitation directed at the public in general.\nMiscellaneous\n11. This Agreement, and the discussions and activities undertaken\npursuant to this Agreement, impose no obligation on either Party to\nenter into any transaction or to purchase, sell, license, transfer, or\notherwise dispose of any technology, services, products, stock, or\nassets. Either Party may terminate discussions and negotiations at any\ntime and for any reason. Until a written definitive agreement\nconcerning any transaction has been executed and delivered, neither\nParty will have any liability to the other Party with respect to any\nproposed transaction, other than a breach of the confidentiality\nobligations and other covenants contained herein, whether by virtue\nof this Agreement or by any other written or oral expression with\nrespect to the transaction or otherwise.\n12. APM and Company are independent contractors, and nothing\ncontained in this Agreement shall be construed to constitute APM\nand Company as partners, joint venturers, co-owners, or otherwise as\nparticipants in a joint or common undertaking.\n13. This Agreement shall not be assignable or transferable without\nthe prior written consent of the other Party, which shall not be\nunreasonably withheld or delayed. A waiver of a failure to comply\nhereunder shall be effected only in writing, signed by the waiving\nParty, and shall not constitute a waiver of any other failures to\ncomply hereunder. All additions or modifications to this Agreement\nmust be made in writing and must be signed by authorized\nrepresentatives of both Parties.\n14. The Parties expressly agree that due to the unique nature of each\nDiscloser’s Confidential Information, monetary damages may be\ninadequate to compensate Discloser for any breach by Recipient of\nits covenants and agreements set forth in this Agreement.\nAccordingly, each Party acknowledges and agrees that any such\nviolation or threatened violation may cause irreparable injury to\nDiscloser and that, in addition to any other remedies that may be\navailable, in law, in equity, or otherwise, Discloser shall be entitled to\nseek injunctive relief against the threatened breach of this Agreement\nor the continuation of any such breach by Recipient, without the\nnecessity of proving actual damages.\n15. Each Recipient will comply with all applicable U.S. government\nexport and import laws and regulations. Further, each Recipient\nagrees that unless authorized by applicable government license or\nregulation, including but not limited to any U.S. authorization,\nRecipient will not directly or indirectly export or re-export, at any\ntime, any Confidential Information or technical information,\ntechnology, software, or other commodity furnished or developed\nunder this Agreement, to any prohibited country (including release of\nsuch Confidential Information or technical information, technology,\nsoftware, or other commodity to nationals, wherever they may be\nlocated, of any prohibited country) as specified in applicable U.S.\nexport, embargo, and sanctions regulations. This Section will survive\ntermination or expiration of this Agreement.\n16. Notices are deemed effective (a) upon delivery, if delivered by\nhand or via email or fax, or, (b) the earlier of five (5) days after the\ndate of sending to or the date of receipt by the persons named below\nand signing on behalf of each Party, if sent via receipted courier or\ncertified (or its equivalent) mail return receipt requested. This\nAgreement may be executed in two or more counterparts, each of\nwhich shall be deemed an original and all of which together shall\nconstitute one instrument. Facsimile or emailed copies of this\nAgreement and the signatures thereon shall be treated as originals.\n17. This Agreement is made under and shall be governed by and\nconstrued in accordance with the laws of the State of California,\nUSA, without giving effect to its principles regarding conflicts of\nlaw, and any disputes arising out of this Agreement shall be settled\nunder California law.\n18. This Agreement is the product of both of the Parties hereto, and\nconstitutes the entire agreement between the Parties relating to the\nprotection of Confidential Information exchanged hereunder, and\nsupersedes all prior written and oral communications and\nnegotiations of the Parties with regard to the protection of such\nConfidential Information.	EX-99.(E)(5) 5 d309035dex99e5.htm EXHIBIT (E)(5)\nExhibit (e)(5)\nMUTUAL NON-DISCLOSURE AGREEMENT Effective Date: July 26, 2016\nApplied Micro Circuits Corporation, a Delaware corporation with\nits principal place of business located at 4555 Great America\nParkway, Santa Clara, California 95054, USA, on behalf of itself and\nits Affiliates (collectively, “APM”), and MACOM Technology\nSelutions Inc., with its principal place of business located at 100\nChelmsford Street, Lowell, MA 01851, on behalf of itself and its\nAffiliates (collectively, “Company”), hereby enter into this Mutual\nNon-Disclosure Agreement (“Agreement”), as follows:\n1. Definitions:\n“Affiliate” of a Party means an entity that, directly or indirectly,\ncontrols, is controlled by, or is under common control with that Party,\nwhere “control” means ownership or control of more than fifty\npercent (50%) of the voting power of securities or interests in the\nentity controlled.\n“Confidential Information” means non-public, confidential\nand/or proprietary information disclosed by a Party to the other Party\n(or to the other Party’s approved contractors, agents and advisors),\nincluding but not limited to business, marketing, and technical plans;\nstrategies; employees; financial information, analyses, and forecasts;\nintellectual property and/or the subject matter thereof; information\nconcerning existing and future products and services; and the\nexistence of this Agreement and the proposed potential business\nrelationship or transaction between the Parties to which this\nAgreement relates.\n“Discloser” means a Party disclosing Confidential Information\npursuant to this Agreement.\n“Party” means either APM or Company.\n“Purpose” means the evaluation of a potential business\ntransaction between the Parties and the undertaking of such\ntransaction.\n“Recipient” means a Party receiving Confidential Information\npursuant to this Agreement, including its directors, employees,\ncontractors, agents, and advisors.\n2. Term: This Agreement shall commence upon the Effective Date\nand shall remain in effect for one (1) year thereafter, unless\nterminated earlier (“Term”). Recipient shall not disclose, and shall\nprotect against disclosure of, Confidential Information from the date\nof disclosure through three (3) years after the end of the Term\n(“Confidentiality Period”). Any Confidential Information disclosed\nprior to the Effective Date shall be accorded the same protection as\nConfidential Information disclosed during the Term. Either Party may\nterminate this Agreement at any time without cause upon written\nnotice to the other Party; however, all obligations of confidentiality\nand related covenants shall survive termination or expiration of this\nAgreement for the duration of the Confidentiality Period.\n3. Use of Confidential Information: Recipient shall have the right\nto make use of Confidential Information solely during the Term and\nsolely for the Purpose, to the extent that this Agreement is not\nsuperseded by a subsequent agreement that governs the exchange of\nConfidential Information. Notwithstanding the foregoing, Company\nwill not, without the prior written consent of APM, discuss with any\nthird party the potential opportunity to participate with Company in\n4. Care of Confidential Information: Recipient shall protect\nConfidential Information by using the same degree of care to prevent\nthe unauthorized use, dissemination, or publication of such\nConfidential Information as Recipient uses to protect its own\nconfidential information of a like nature, but no less than a\nreasonable degree of care. A Party will not give its directors,\nemployees, contractors, agents, and advisors access to Confidential\nInformation received from a Discloser, or approve any such persons\nfor receipt of Confidential Information directly from the Discloser,\nuntil such Party has ensured that the Recipient is aware of this\nAgreement and is under an obligation to honor it.\n5. Information That Is Covered: Recipient shall have an obligation\nto protect only that Confidential Information which either (a) is\nmarked, identified as, or otherwise acknowledged to be confidential\nat the time of disclosure to Recipient, or (b) should reasonably be\nexpected to be considered confidential or proprietary based upon the\nnature of the information and the circumstances of disclosure,\nincluding but not limited to information that may come to Recipient’s\nknowledge as a result of visiting any of the facilities of Discloser.\nConfidential Information shall be disclosed to or shared among other\nRecipients solely on a need to know basis. Copies of Confidential\nInformation shall only be made by Recipient as necessary for the\nPurpose, and any copies made by Recipient of any Confidential\nInformation shall be labeled or identified as confidential, proprietary,\nor the like, and shall be subject to all terms and provisions of this\nAgreement.\n6. Exclusions: Recipient shall have no duty to protect against\ndisclosure of information that: (a) was rightfully in Recipient’s\npossession before receipt from Discloser, as substantiated by written\nrecords or documentation of Recipient; (b) is or becomes a matter of\npublic knowledge through no fault of Recipient; (c) is rightfully\nreceived by Recipient from a third person without a duty of\nconfidentiality; (d) is independently developed by Recipient, as\nsubstantiated by written records or other documentation of Recipient;\n(e) is disclosed under requirement of law or court order, provided that\nRecipient (i) shall only disclose that portion of the Confidential\nInformation that is legally required; (ii) shall have made a reasonable\neffort to prevent, obtain relief from and/or obtain protective orders\nwith respect to such disclosure requirements, and (iii) shall have\npromptly notified Discloser of the existence of any such disclosure\nrequirement so as to afford Discloser adequate opportunity to do\nlikewise; or (f) is disclosed by Recipient with Discloser’s prior\nwritten approval.\n7. Warranty: Each Discloser warrants that it has the right to make\nthe disclosures made pursuant to this Agreement. NO OTHER\nWARRANTIES ARE MADE BY EITHER PARTY UNDER\nTHIS AGREEMENT. ANY INFORMATION EXCHANGED\nUNDER THIS AGREEMENT IS PROVIDED “AS IS”.\n8. Rights: Confidential Information is and shall remain the property\nof Discloser along with all associated intellectual property rights\nowned by Discloser. Neither the disclosure of Confidential\nInformation, the expiration of the duty to protect from disclosure, or\nanything else contained in this Agreement (including, without\nlimitation, the right to use Confidential Information as set forth\nabove) shall be construed as granting or conferring any right or\nlicense under any patent, trade secret, copyright, or other intellectual\nproperty right of any Discloser. Neither Party shall reverse engineer,\ndisassemble, or decompile any prototypes, software or other tangible\nobjects which constitute or embody the other Party’s Confidential\nInformation.\nconnection with implementing the Purpose or solicit from any third\nparty any equity or debt financing assistance relating to the Purpose.\nUpon the written request of Discloser, Recipient shall promptly\nreturn all Confidential Information received from Discloser, together\nwith all copies, or, if requested by Discloser, certify that all such\nConfidential Information, together with all copies, has been\ndestroyed.\n9. Material Non-Public Information: By executing and delivering\nthis Agreement, each Party confirms to the other that it is aware and\nthat its representatives have been advised that the Federal and state\nsecurities laws of the United States prohibit any person who\npossesses material, non-public information about a company from\npurchasing or selling securities of such company.\n10. Additional Covenants: In consideration of and as a condition to\nthe exchange of Confidential Information hereunder, the Parties agree\nthat each Recipient and its Affiliates will not, without the prior\nwritten consent of Discloser, for a period of 12 months from the\nEffective Date, directly or indirectly solicit or cause to be solicited\nfor employment any current employee of Discloser or any of its\nAffiliates of whom Recipient first learned of pursuant to disclosures\nmade under, or activity conducted pursuant to, this Agreement;\nprovided, however, that the foregoing restriction will not apply or\nrestrict any covered employees from applying or responding to any\nsolicitation directed at the public in general, nor will it prohibit any\nRecipient from considering or hiring for employment persons who\nrespond to a solicitation directed at the public in general.\nMiscellaneous\n11. This Agreement, and the discussions and activities undertaken\npursuant to this Agreement, impose no obligation on either Party to\nenter into any transaction or to purchase, sell, license, transfer, or\notherwise dispose of any technology, services, products, stock, or\nassets. Either Party may terminate discussions and negotiations at any\ntime and for any reason. Until a written definitive agreement\nconcerning any transaction has been executed and delivered, neither\nParty will have any liability to the other Party with respect to any\nproposed transaction, other than a breach of the confidentiality\nobligations and other covenants contained herein, whether by virtue\nof this Agreement or by any other written or oral expression with\nrespect to the transaction or otherwise.\n12. APM and Company are independent contractors, and nothing\ncontained in this Agreement shall be construed to constitute APM\nand Company as partners, joint venturers, co-owners, or otherwise as\nparticipants in a joint or common undertaking.\n13. This Agreement shall not be assignable or transferable without\nthe prior written consent of the other Party, which shall not be\nunreasonably withheld or delayed. A waiver of a failure to comply\nhereunder shall be effected only in writing, signed by the waiving\nParty, and shall not constitute a waiver of any other failures to\ncomply hereunder. All additions or modifications to this Agreement\nmust be made in writing and must be signed by authorized\nrepresentatives of both Parties.\n14. The Parties expressly agree that due to the unique nature of each\nDiscloser’s Confidential Information, monetary damages may be\ninadequate to compensate Discloser for any breach by Recipient of\nits covenants and agreements set forth in this Agreement.\nAccordingly, each Party acknowledges and agrees that any such\nviolation or threatened violation may cause irreparable injury to\nDiscloser and that, in addition to any other remedies that may be\navailable, in law, in equity, or otherwise, Discloser shall be entitled to\nseek injunctive relief against the threatened breach of this Agreement\nor the continuation of any such breach by Recipient, without the\nnecessity of proving actual damages.\n15. Each Recipient will comply with all applicable U.S. government\nexport and import laws and regulations. Further, each Recipient\nagrees that unless authorized by applicable government license or\nregulation, including but not limited to any U.S. authorization,\nRecipient will not directly or indirectly export or re-export, at any\ntime, any Confidential Information or technical information,\ntechnology, software, or other commodity furnished or developed\nunder this Agreement, to any prohibited country (including release of\nsuch Confidential Information or technical information, technology,\nsoftware, or other commodity to nationals, wherever they may be\nlocated, of any prohibited country) as specified in applicable U.S.\nexport, embargo, and sanctions regulations. This Section will survive\ntermination or expiration of this Agreement.\n16. Notices are deemed effective (a) upon delivery, if delivered by\nhand or via email or fax, or, (b) the earlier of five (5) days after the\ndate of sending to or the date of receipt by the persons named below\nand signing on behalf of each Party, if sent via receipted courier or\ncertified (or its equivalent) mail return receipt requested. This\nAgreement may be executed in two or more counterparts, each of\nwhich shall be deemed an original and all of which together shall\nconstitute one instrument. Facsimile or emailed copies of this\nAgreement and the signatures thereon shall be treated as originals.\n17. This Agreement is made under and shall be governed by and\nconstrued in accordance with the laws of the State of California,\nUSA, without giving effect to its principles regarding conflicts of\nlaw, and any disputes arising out of this Agreement shall be settled\nunder California law.\n18. This Agreement is the product of both of the Parties hereto, and\nconstitutes the entire agreement between the Parties relating to the\nprotection of Confidential Information exchanged hereunder, and\nsupersedes all prior written and oral communications and\nnegotiations of the Parties with regard to the protection of such\nConfidential Information.\nThe Parties agree to the terms and conditions of this Mutual Non-Disclosure Agreement effective as of the Effective Date first above written. Applied Micro Circuits Corporation\nBy: /s/ Paul L. Alpern\nPrinted Name: Paul L. Alpern\nTitle: Associate General Counsel\nDate: July 27, 2016\nMACOM Technology Selutions Inc.\nBy: /s/ Karen Hanlon\nPrinted Name: Karen Hanlon\nTitle: Contracts Manager\nDate: 7-27-2016	EX-99.(E)(5) 5 d309035dex99e5.htn EXHIBIT (E)(5)\nExhibit (e)(5)\nMUTUAL NON-DISCLOSURE AGREEMENT\nEffective Date: July 26, 2016\n4. Care of Confidential Information: Recipient shall protect\nConfidential Information by using the same degree of care to prevent\nApplied Micro Circuits Corporation, a Delaware corporation with\nthe unauthorized use, dissemination, or publication of such\nits principal place of business located at 4555 Great America\nConfidential Information as Recipient uses to protect its own\nParkway, Santa Clara, California 95054, USA, on behalf of itself and\nconfidential information of a like nature, but no less than a\nits Affiliates (collectively, "APM"), and MACOM Technology\nreasonable degree of care. A Party will not give its directors,\nSolutions Inc., with its principal place of business located at 100\nemployees, contractors, agents, and advisors access to Confidentia\nChelmsford Street, Lowell, MA 01851, on behalf of itself and its\nInformation received from a Discloser, or approve any such persons\nAffiliates (collectively, "Company"), hereby enter into this Mutual\nfor receipt of Confidential Information directly from the Discloser,\nNon-Disclosure Agreement ("Agreement"), as follows:\nuntil such Party has ensured that the Recipient is aware of this\nAgreement and is under an obligation to honor it.\n1. Definitions:\n5. Information That Is Covered: Recipient shall have an obligation\n"Affiliate" of a Party means an entity that, directly or indirectly,\nto protect only that Confidential Information which either (a) is\ncontrols, is controlled by, or is under common control with that Party,\nmarked, identified as, or otherwise acknowledged to be confidentia\nwhere "control" means ownership or control of more than fifty\nat the time of disclosure to Recipient, or (b) should reasonably be\npercent (50%) of the voting power of securities or interests in the\nexpected to be considered confidential or proprietary based upon the\nentity controlled.\nnature of the information and the circumstances of disclosure,\nincluding but not limited to information that may come to Recipient's\n"Confidential Information" means non-public, confidential\nknowledge as a result of visiting any of the facilities of Discloser.\nand/or proprietary information disclosed by a Party to the other Party\nConfidential Information shall be disclosed to or shared among other\n(or to the other Party's approved contractors, agents and advisors),\nRecipients solely on a need to know basis. Copies of Confidential\nincluding but not limited to business, marketing, and technical plans;\nInformation shal only be made by Recipient as necessary for the\nstrategies; employees; financial information, analyses, and forecasts;\nPurpose, and any copies made by Recipient of any Confidential\nintellectual property and/or the subject matter thereof; information\nInformation shall be labeled or identified as confidential, proprietary,\nconcerning existing and future products and services; and the\nor the like, and shall be subject to all terms and provisions of this\nexistence of this Agreement and the proposed potential business\nAgreement\nrelationship or transaction between the Parties to which this\nAgreement relates.\n6. Exclusions: Recipient shall have no duty to protect against\ndisclosure of information that: (a) was rightfully in Recipient's\n"Discloser" means a Party disclosing Confidential Information\npossession before receipt from Discloser, as substantiated by written\npursuant to this Agreement.\nrecords or documentation of Recipient; (b) is or becomes a matter of\npublic knowledge through no fault of Recipient; (c) is rightfully\n"Party" means either APM or Company.\nreceived by Recipient from a third person without a duty of\nconfidentiality; (d) is independently developed by Recipient, as\n"Purpose" means the evaluation of a potential business\nsubstantiated by written records or other documentation of Recipient;\ntransaction between the Parties and the undertaking of such\n(e) is disclosed under requirement of law or court order, provided that\ntransaction.\nRecipient (i) shall only disclose that portion of the Confidential\nInformation that is legally required; (ii) shall have made a reasonable\n"Recipient" means a Party receiving Confidential Information\neffort to prevent, obtain relief from and/or obtain protective orders\npursuant to this Agreement, including its directors, employees,\nwith respect to such disclosure requirements, and (iii) shall have\ncontractors, agents, and advisors.\npromptly notified Discloser of the existence of any such disclosure\nrequirement so as to afford Discloser adequate opportunity to do\n2. Term: This Agreement shall commence upon the Effective Date\nlikewise; or (f) is disclosed by Recipient with Discloser's prior\nand shall remain in effect for one (1) year thereafter, unless\nwritten approval.\nterminated earlier ("Term"). Recipient shall not disclose, and shall\nprotect against disclosure of, Confidential Information from the date\n7. Warranty: Each Discloser warrants that it has the right to make\nof disclosure through three (3) years after the end of the Term\nthe disclosures made pursuant to this Agreement. NO OTHER\n("Confidentiality Period") Any Confidentia Information disclosed\nWARRANTIES ARE MADE BY EITHER PARTY UNDER\nprior to the Effective Date shall be accorded the same protection as\nTHIS AGREEMENT. ANY INFORMATION EXCHANGED\nConfidentia Information disclosed during the Term. Either Party may\nUNDER THIS AGREEMENT IS PROVIDED "AS IS".\nterminate this Agreement at any time without cause upon written\nnotice to the other Party; however, all obligations of confidentiality\n8. Rights: Confidential Information is and shall remain the property\nand related covenants shall survive termination or expiration of this\nof Discloser along with all associated intellectual property rights\nAgreement for the duration of the Confidentiality Period.\nowned by Discloser. Neither the disclosure of Confidential\nInformation, the expiration of the duty to protect from disclosure, or\n3. Use of Confidential Information: Recipient shall have the right\nanything else contained in this Agreement (including, without\nto make use of Confidential Information solely during the Term and\nlimitation, the right to use Confidential Information as set forth\nsolely for the Purpose, to the extent that this Agreement is not\nabove) shall be construed as granting or conferring any right or\nsuperseded by a subsequent agreement that governs the exchange of\nlicense under any patent, trade secret, copyright, or other intellectual\nConfidential Information. Notwithstanding the foregoing, Company\nproperty right of any Discloser. Neither Party shall reverse engineer,\nwill not, without the prior written consent of APM, discuss with any\ndisassemble, or decompile any prototypes, software or other tangible\nthird party the potential opportunity to participate with Company in\nobjects which constitute or embody the other Party's Confidential\nInformation.\nconnection with implementing the Purpose or solicit from any third\nparty any equity or debt financing assistance relating to the Purpose.\nUpon the written request of Discloser, Recipient shall promptly\nreturn all Confidential Information received from Discloser, together\nwith all copies, or, if requested by Discloser, certify that all such\nConfidential Information, together with all copies, has been\ndestroyed.\n1\n9. Material Non-Public Information: By executing and delivering\n14. The Parties expressly agree that due to the unique nature of each\nthis Agreement, each Party confirms to the other that it is aware and\nDiscloser's Confidential Information, monetary damages may be\nthat its representatives have been advised that the Federal and state\ninadequate to compensate Discloser for any breach by Recipient of\nsecurities laws of the United States prohibit any person who\nits covenants and agreements set forth in this Agreement.\npossesses material, non-public information about a company from\nAccordingly, each Party acknowledges and agrees that any such\npurchasing or selling securities of such company.\nviolation or threatened violation may cause irreparable injury to\nDiscloser and that, in addition to any other remedies that may be\n10. Additional Covenants: In consideration of and as a condition to\navailable, in law, in equity, or otherwise, Discloser shall be entitled to\nthe exchange of Confidential Information hereunder, the Parties agree\nseek injunctive relief against the threatened breach of this Agreement\nthat each Recipient and its Affiliates will not, without the prior\nor the continuation of any such breach by Recipient, without the\nwritten consent of Discloser, for a period of 12 months from the\nnecessity of proving actual damages.\nEffective Date, directly or indirectly solicit or cause to be solicited\nfor employment any current employee of Discloser or any of its\n15. Each Recipient will comply with all applicable U.S. government\nAffiliates of whom Recipient first learned of pursuant to disclosures\nexport and import laws and regulations. Further, each Recipient\nmade under, or activity conducted pursuant to, this Agreement;\nagrees that unless authorized by applicable government license or\nprovided, however, that the foregoing restriction will not apply or\nregulation, including but not limited to any U.S. authorization,\nrestrict any covered employees from applying or responding to any\nRecipient will not directly or indirectly export or re-export, at any\nsolicitation directed at the public in general, nor will it prohibit any\ntime, any Confidential Information or technical information,\nRecipient from considering or hiring for employment persons who\ntechnology, software, or other commodity furnished or developed\nrespond to a solicitation directed at the public in general.\nunder this Agreement, to any prohibited country (including release of\nsuch Confidential Information or technical information, technology,\nMiscellaneous\nsoftware, or other commodity to nationals, wherever they may be\nlocated, of any prohibited country) as specified in applicable U.S.\n11. This Agreement, and the discussions and activities undertaken\nexport, embargo, and sanctions regulations. This Section will survive\npursuant to this Agreement, impose no obligation on either Party to\ntermination or expiration of this Agreement.\nenter into any transaction or to purchase, sell, license, transfer, or\notherwise dispose of any technology, services, products, stock, or\n16. Notices are deemed effective (a) upon delivery, if delivered by\nassets. Either Party may terminate discussions and negotiations at any\nhand or via email or fax, or, (b) the earlier of five (5) days after the\ntime and for any reason. Until a written definitive agreement\ndate of sending to or the date of receipt by the persons named below\nconcerning any transaction has been executed and delivered, neither\nand signing on behalf of each Party, if sent via receipted courier or\nParty will have any liability to the other Party with respect to any\ncertified (or its equivalent) mail return receipt requested. This\nproposed transaction, other than a breach of the confidentiality\nAgreement may be executed in two or more counterparts, each of\nobligations and other covenants contained herein, whether by virtue\nwhich shall be deemed an original and all of which together shall\nof this Agreement or by any other written or oral expression with\nconstitute one instrument. Facsimile or emailed copies of this\nrespect to the transaction or otherwise.\nAgreement and the signatures thereon shall be treated as originals.\n12. APM and Company are independent contractors, and nothing\n17. This Agreement is made under and shall be governed by and\ncontained in this Agreement shall be construed to constitute APM\nconstrued in accordance with the laws of the State of California,\nand Company as partners, joint venturers, co-owners, or otherwise as\nUSA, without giving effect to its principles regarding conflicts of\nparticipants in a joint or common undertaking.\nlaw, and any disputes arising out of this Agreement shall be settled\nunder California law.\n13. This Agreement shall not be assignable or transferable without\nthe prior written consent of the other Party, which shall not be\n18. This Agreement is the product of both of the Parties hereto, and\nunreasonably withheld or delayed. A waiver of a failure to comply\nconstitutes the entire agreement between the Parties relating to the\nhereunder shall be effected only in writing, signed by the waiving\nprotection of Confidential Information exchanged hereunder, and\nParty, and shall not constitute a waiver of any other failures to\nsupersedes all prior written and oral communications and\ncomply hereunder. All additions or modifications to this Agreement\nnegotiations of the Parties with regard to the protection of such\nmust be made in writing and must be signed by authorized\nConfidential Information.\nrepresentatives of both Parties.\nThe Parties agree to the terms and conditions of this Mutual Non-Disclosure Agreement effective as of the Effective Date first above written.\nApplied Micro Circuits Corporation\nMACOM Technology Solutions Inc.\nBy:\n/s/ Paul L. Alpern\nBy:\n/s/ Karen Hanlon\nPrinted Name: Paul L. Alpern\nPrinted Name: Karen Hanlon\nTitle:\nAssociate General Counsel\nTitle:\nContracts Manager\nDate:\nJuly 27, 2016\nDate:\n7-27-2016\n2	EX-99.(E)(5) 5 d309035dex99e5.htm EXHIBIT (E)(5)\nExhibit (e)(5)\nMUTUAL NON-DISCLOSURE AGREEMENT\nEffective Date: July 26, 2016\nApplied Micro Circuits Corporation, a Delaware corporation with\nits principal place of business located at 4555 Great America\nParkway, Santa Clara, California 95054, USA, on behalf of itself and\nits Affiliates (collectively, “APM”), and MACOM Technology\nSolutions Inc., with its principal place of business located at 100\nChelmsford Street, Lowell, MA 01851, on behalf of itself and its\nAffiliates (collectively, “Company”), hereby enter into this Mutual\nNon-Disclosure Agreement (“Agreement”), as follows:\n1. Definitions:\n“Affiliate” of a Party means an entity that, directly or indirectly,\ncontrols, is controlled by, or is under common control with that Party,\nwhere “control” means ownership or control of more than fifty\npercent (50%) of the voting power of securities or interests in the\nentity controlled.\n“Confidential Information” means non-public, confidential\nand/or proprietary information disclosed by a Party to the other Party\n(or to the other Party’s approved contractors, agents and advisors),\nincluding but not limited to business, marketing, and technical plans;\nstrategies; employees; financial information, analyses, and forecasts;\nintellectual property and/or the subject matter thereof; information\nconcerning existing and future products and services; and the\nexistence of this Agreement and the proposed potential business\nrelationship or transaction between the Parties to which this\nAgreement relates.\n“Discloser” means a Party disclosing Confidential Information\npursuant to this Agreement.\n“Party” means either APM or Company.\n“Purpose” means the evaluation of a potential business\ntransaction between the Parties and the undertaking of such\ntransaction.\n“Recipient” means a Party receiving Confidential Information\npursuant to this Agreement, including its directors, employees,\ncontractors, agents, and advisors.\n2. Term: This Agreement shall commence upon the Effective Date\nand shall remain in effect for one (1) year thereafter, unless\nterminated earlier (“Term”). Recipient shall not disclose, and shall\nprotect against disclosure of, Confidential Information from the date\nof disclosure through three (3) years after the end of the Term\n(“Confidentiality Period”). Any Confidential Information disclosed\nprior to the Effective Date shall be accorded the same protection as\nConfidential Information disclosed during the Term. Either Party may\nterminate this Agreement at any time without cause upon written\nnotice to the other Party; however, all obligations of confidentiality\nand related covenants shall survive termination or expiration of this\nAgreement for the duration of the Confidentiality Period.\n3. Use of Confidential Information: Recipient shall have the right\nto make use of Confidential Information solely during the Term and\nsolely for the Purpose, to the extent that this Agreement is not\nsuperseded by a subsequent agreement that governs the exchange of\nConfidential Information. Notwithstanding the foregoing, Company\nwill not, without the prior written consent of APM, discuss with any\nthird party the potential opportunity to participate with Company in\n4. Care of Confidential Information: Recipient shall protect\nConfidential Information by using the same degree of care to prevent\nthe unauthorized use, dissemination, or publication of such\nConfidential Information as Recipient uses to protect its own\nconfidential information of a like nature, but no less than a\nreasonable degree of care. A Party will not give its directors,\nemployees, contractors, agents, and advisors access to Confidential\nInformation received from a Discloser, or approve any such persons\nfor receipt of Confidential Information directly from the Discloser,\nuntil such Party has ensured that the Recipient is aware of this\nAgreement and is under an obligation to honor it.\n5. Information That Is Covered: Recipient shall have an obligation\nto protect only that Confidential Information which either (a) is\nmarked, identified as, or otherwise acknowledged to be confidential\nat the time of disclosure to Recipient, or (b) should reasonably be\nexpected to be considered confidential or proprietary based upon the\nnature of the information and the circumstances of disclosure,\nincluding but not limited to information that may come to Recipient’s\nknowledge as a result of visiting any of the facilities of Discloser.\nConfidential Information shall be disclosed to or shared among other\nRecipients solely on a need to know basis. Copies of Confidential\nInformation shall only be made by Recipient as necessary for the\nPurpose, and any copies made by Recipient of any Confidential\nInformation shall be labeled or identified as confidential, proprietary,\nor the like, and shall be subject to all terms and provisions of this\nAgreement.\n6. Exclusions: Recipient shall have no duty to protect against\ndisclosure of information that: (a) was rightfully in Recipient’s\npossession before receipt from Discloser, as substantiated by written\nrecords or documentation of Recipient; (b) is or becomes a matter of\npublic knowledge through no fault of Recipient; (c) is rightfully\nreceived by Recipient from a third person without a duty of\nconfidentiality; (d) is independently developed by Recipient, as\nsubstantiated by written records or other documentation of Recipient;\n(e) is disclosed under requirement of law or court order, provided that\nRecipient (i) shall only disclose that portion of the Confidential\nInformation that is legally required; (ii) shall have made a reasonable\neffort to prevent, obtain relief from and/or obtain protective orders\nwith respect to such disclosure requirements, and (iii) shall have\npromptly notified Discloser of the existence of any such disclosure\nrequirement so as to afford Discloser adequate opportunity to do\nlikewise; or (f) is disclosed by Recipient with Discloser ’s prior\nwritten approval.\n7. Warranty: Each Discloser warrants that it has the right to make\nthe disclosures made pursuant to this Agreement. NO OTHER\nWARRANTIES ARE MADE BY EITHER PARTY UNDER\nTHIS AGREEMENT. ANY INFORMATION EXCHANGED\nUNDER THIS AGREEMENT IS PROVIDED “AS IS”.\n8. Rights: Confidential Information is and shall remain the property\nof Discloser along with all associated intellectual property rights\nowned by Discloser. Neither the disclosure of Confidential\nInformation, the expiration of the duty to protect from disclosure, or\nanything else contained in this Agreement (including, without\nlimitation, the right to use Confidential Information as set forth\nabove) shall be construed as granting or conferring any right or\nlicense under any patent, trade secret, copyright, or other intellectual\nproperty right of any Discloser. Neither Party shall reverse engineer,\ndisassemble, or decompile any prototypes, software or other tangible\nobjects which constitute or embody the other Party’s Confidential\nInformation.\n1\nconnection with implementing the Purpose or solicit from any third\nparty any equity or debt financing assistance relating to the Purpose.\nUpon the written request of Discloser, Recipient shall promptly\nreturn all Confidential Information received from Discloser, together\nwith all copies, or, if requested by Discloser, certify that all such\nConfidential Information, together with all copies, has been\ndestroyed.\nThe Parties agree to the terms and conditions of this Mutual Non-Disclosure Agreement effective as of the Effective Date first above written.\nApplied Micro Circuits Corporation\nMACOM Technology Solutions Inc.\nBy:\n/s/ Paul L. Alpern\nBy:\n/s/ Karen Hanlon\nPrinted Name: Paul L. Alpern\nPrinted Name: Karen Hanlon\nTitle:\nAssociate General Counsel\nTitle:\nContracts Manager\nDate:\nJuly 27, 2016\nDate:\n7-27-2016\n2\n9. Material Non-Public Information: By executing and delivering\nthis Agreement, each Party confirms to the other that it is aware and\nthat its representatives have been advised that the Federal and state\nsecurities laws of the United States prohibit any person who\npossesses material, non-public information about a company from\npurchasing or selling securities of such company.\n10. Additional Covenants: In consideration of and as a condition to\nthe exchange of Confidential Information hereunder, the Parties agree\nthat each Recipient and its Affiliates will not, without the prior\nwritten consent of Discloser, for a period of 12 months from the\nEffective Date, directly or indirectly solicit or cause to be solicited\nfor employment any current employee of Discloser or any of its\nAffiliates of whom Recipient first learned of pursuant to disclosures\nmade under, or activity conducted pursuant to, this Agreement;\nprovided, however, that the foregoing restriction will not apply or\nrestrict any covered employees from applying or responding to any\nsolicitation directed at the public in general, nor will it prohibit any\nRecipient from considering or hiring for employment persons who\nrespond to a solicitation directed at the public in general.\nMiscellaneous\n11. This Agreement, and the discussions and activities undertaken\npursuant to this Agreement, impose no obligation on either Party to\nenter into any transaction or to purchase, sell, license, transfer, or\notherwise dispose of any technology, services, products, stock, or\nassets. Either Party may terminate discussions and negotiations at any\ntime and for any reason. Until a written definitive agreement\nconcerning any transaction has been executed and delivered, neither\nParty will have any liability to the other Party with respect to any\nproposed transaction, other than a breach of the confidentiality\nobligations and other covenants contained herein, whether by virtue\nof this Agreement or by any other written or oral expression with\nrespect to the transaction or otherwise.\n12. APM and Company are independent contractors, and nothing\ncontained in this Agreement shall be construed to constitute APM\nand Company as partners, joint venturers, co-owners, or otherwise as\nparticipants in a joint or common undertaking.\n13. This Agreement shall not be assignable or transferable without\nthe prior written consent of the other Party, which shall not be\nunreasonably withheld or delayed. A waiver of a failure to comply\nhereunder shall be effected only in writing, signed by the waiving\nParty, and shall not constitute a waiver of any other failures to\ncomply hereunder. All additions or modifications to this Agreement\nmust be made in writing and must be signed by authorized\nrepresentatives of both Parties.\n14. The Parties expressly agree that due to the unique nature of each\nDiscloser’s Confidential Information, monetary damages may be\ninadequate to compensate Discloser for any breach by Recipient of\nits covenants and agreements set forth in this Agreement.\nAccordingly, each Party acknowledges and agrees that any such\nviolation or threatened violation may cause irreparable injury to\nDiscloser and that, in addition to any other remedies that may be\navailable, in law, in equity, or otherwise, Discloser shall be entitled to\nseek injunctive relief against the threatened breach of this Agreement\nor the continuation of any such breach by Recipient, without the\nnecessity of proving actual damages.\n15. Each Recipient will comply with all applicable U.S. government\nexport and import laws and regulations. Further, each Recipient\nagrees that unless authorized by applicable government license or\nregulation, including but not limited to any U.S. authorization,\nRecipient will not directly or indirectly export or re-export, at any\ntime, any Confidential Information or technical information,\ntechnology, software, or other commodity furnished or developed\nunder this Agreement, to any prohibited country (including release of\nsuch Confidential Information or technical information, technology,\nsoftware, or other commodity to nationals, wherever they may be\nlocated, of any prohibited country) as specified in applicable U.S.\nexport, embargo, and sanctions regulations. This Section will survive\ntermination or expiration of this Agreement.\n16. Notices are deemed effective (a) upon delivery, if delivered by\nhand or via email or fax, or, (b) the earlier of five (5) days after the\ndate of sending to or the date of receipt by the persons named below\nand signing on behalf of each Party, if sent via receipted courier or\ncertified (or its equivalent) mail return receipt requested. This\nAgreement may be executed in two or more counterparts, each of\nwhich shall be deemed an original and all of which together shall\nconstitute one instrument. Facsimile or emailed copies of this\nAgreement and the signatures thereon shall be treated as originals.\n17. This Agreement is made under and shall be governed by and\nconstrued in accordance with the laws of the State of California,\nUSA, without giving effect to its principles regarding conflicts of\nlaw, and any disputes arising out of this Agreement shall be settled\nunder California law.\n18. This Agreement is the product of both of the Parties hereto, and\nconstitutes the entire agreement between the Parties relating to the\nprotection of Confidential Information exchanged hereunder, and\nsupersedes all prior written and oral communications and\nnegotiations of the Parties with regard to the protection of such\nConfidential Information.
+95370d54d5db8e7251c009be1a7b2f24.pdf	effective_date jurisdiction party term	Attachment B\nNon-Disclosure Agreement\nTHIS AGREEMENT is made as of the 28 of September, 2004 by and between Telco Solutions III, LLC, a corporation organized under the\nlaws of\n(“TELCO”), and Comverge, Inc., a corporation organized under the laws of Delaware (“COMVERGE”), collectively referred\nto as “Parties”.\nWHEREAS, COMVERGE and TELCO have entered into an agreement whereby Telco will supply certain products to Comverge (the “Supply\nAgreement”); and\nWHEREAS, the Parties and their affiliates will provide confidential and proprietary information and materials to each other which the Parties\nseek to keep confidential.\nNOW THEREFORE, the Parties agree as follows:\n1. Project Defined. The Parties may be receiving from each other information of a non-public nature for use by the Parties in the course of\ncarrying out their respective duties under the Supply Agreement relating to the manufacture, assemble, test and supply certain products for\nComverge (the “Project”).\n2. Confidential Information Defined. The Parties acknowledge that, in the course of the Project, each of the Parties will receive certain non-\npublic and confidential information, from or about each other, including but not limited to technical, financial and business information and models,\nnames of existing or potential suppliers, customers or partners, proposed business deals, reports, plans, market projections, products, services,\nsoftware programs, data or any other confidential and proprietary information relating to the Project. All such technical, financial or other business\ninformation supplied by either of the Parties or their representatives is hereinafter called the “Confidential Information” provided that it is identified\nand clearly marked as such. The term “Confidential Information” as used herein also includes the Project itself and any information, work papers,\nanalyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced by either of\nthe Parties or their representatives for each other which contain or otherwise reflect confidential or proprietary information provided by either of the\nParties in connection with the Project provided that all such information is identified and clearly marked “Confidential”. Any Confidential\nInformation supplied in connection with the Project by either of the Parties prior to the execution of this Agreement shall be considered in the same\nmanner and be subject to the same treatment as the Confidential Information made available hereunder after the execution of this Agreement.\n3. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which: (a) is\nalready known to the receiving party on a nonproprietary basis at the time it is disclosed to the receiving party; (b) is or becomes generally known to\nthe public through no wrongful act of the receiving party or its representatives; (c) has been rightfully received by the receiving party from a third\nparty without restriction on disclosure and without a breach of an obligation of confidentiality running directly to the providing party; or (d) has been\napproved for release by written authorization by the originating party.\n4. Non-disclosure Obligation. The receiving party shall keep the Confidential Information confidential and shall not disclose such Confidential\nInformation, in whole or in part, to any person other than its agents, representatives and employees who need to know such Confidential Information\nin connection with the receiving party’s performance of services in connection with the Project, except with the prior written consent of the\noriginating party or as otherwise permitted hereunder. The Confidential Information shall be used by the receiving party solely for the purpose of\nperforming services in connection with the Project, and shall not be\nComverge – Proprietary and Confidential\n19\n9/28/2004\notherwise used without the originating party’s prior written consent. The receiving party agrees that it may disclose the Confidential Information\nonly to those of their agents and representatives who have been identified to the originating party in writing and whom the originating party has\nagreed in writing need to know the Confidential Information for the purpose of assisting the Parties in connection with the Project. Prior to\ndisseminating any of the Confidential Information to any agent and/or representative permitted herein, the receiving party shall advise recipients of\nsuch information of its confidential nature, and shall require such agent and/or representative to agree, in writing, to maintain the confidentiality of\nthe Confidential Information and to be bound by all the terms, conditions and restrictions of this Agreement. The Parties may add agents and/or\nrepresentatives to the list previously identified herein by giving each other prior written notice and by complying with the remaining provisions of\nthis Paragraph 4. The Confidential Information shall be used by the receiving party solely in connection with the Project, and shall not be otherwise\nused by the receiving party for its own benefit or for any purpose detrimental to the interest of the originating party.\n5. Standard of Protection. For the purpose of complying with the obligations set forth herein, the receiving party shall use a high standard of\ncare, no less than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.\n6. Compliance with Legal Process. In the event that the receiving party is legally requested or required (by oral questions, interrogatories,\nrequests for information or documents, subpoena, civil investigative demand or similar process or, in the opinion of counsel for the receiving party,\nby applicable statutes, regulations or laws) to disclose any Confidential Information, the receiving party shall promptly notify the originating party of\nsuch request or requirement prior to disclosure so that the originating party may seek an appropriate protective order and/or waive compliance with\nthe terms of this Agreement.\n7. Ownership; Return of Information. Except as otherwise set forth in the Supply Agreement, all Confidential Information (including tangible\ncopies and computerized or electronic versions thereof and also all Confidential Information contained in all deliverables and work papers),\nincluding all intellectual property rights pertaining thereto, shall be the property of the originating party. No later than ten (10) days following the\nreceipt of a written request from the originating party, the receiving party shall deliver to the originating party all Confidential Information, together\nwith a certificate executed by the agent and/or representative or principal of the receiving party certifying that all such materials in the receiving\nparty possession or control have been delivered to the originating party or destroyed. The receiving party shall not directly or indirectly assert any\nright with respect to any of the Confidential Information that may impair or be adverse to the originating party’s ownership thereof.\n8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this\nAgreement and that the originating party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to\nremedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this\nAgreement, but shall be in addition to all other rights and remedies available at law or in equity.\n9. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for and\nduring the term of the Agreement. However, the obligations of the receiving party to maintain the confidentiality of the Confidential Information it\nhas received under this Agreement and its restriction on the use of such Confidential Information shall continue for a period of five years after the\nexpiration or termination of the Supply Agreement Notwithstanding the previous sentence, Confidential Information relating to TELCO’s customer\ninformation shall be subject to a perpetual obligation of confidentiality.\n10. No Waiver. No failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or\nprivilege hereunder.\n11. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both\nParties hereto.\nComverge – Proprietary and Confidential\n20\n9/28/2004\n12 Applicability to Affiliated Parties. Any information disclosed to the receiving party by any of the originating party’s affiliates or by any\ncompany, person or other entity participating with the originating party, in any consortium, partnership, joint venture or similar business combination\nin direct connection with the Project, which would otherwise constitute Confidential Information hereunder if disclosed by the originating party,\nshall be deemed to constitute Confidential Information under this Agreement, and the rights of the originating party under this Agreement may be\nenforced by any such affiliate or other entity in addition to the originating party with respect to any violation relating to such Confidential\nInformation disclosed by such affiliate or other entity, as if such entity were also a party to this Agreement. For purposes of this agreement, an\n“affiliate” means an entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with,\nsuch entity.\n13. Attorneys’ Fees. Should the originating party or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an\naction at law or in equity to enforce any of the terms or conditions of this Agreement caused by the breach or default by the receiving party, and\nprevails in such action, the receiving party shall reimburse the impaired party or any such beneficiary for all reasonable attorneys’ fees and costs\nincurred pursuing such proceeding.\n14. Governing Law. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of\nTennessee.\nIN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above written.\nComverge, Inc.\nTelco Solutions III, LLC\nBy: /s/ Wayne Wren\nBy: /s/ Timothy J. Knox\nName: Wayne Wren\nTitle: EVP\nName: Timothy J. Knox\nTitle: President & CEO\nDate: 9.28.04\nDate: September 29, 2004\nComverge – Proprietary and Confidential\n21\n9/28/2004	Attachment B\nNon-Disclosure Agreement\nTHIS AGREEMENT is made as of the 28 of September, 2004 by and between Telco Solutions III, LL.C, a corporation organized under the\nlaws of (“TELCO”), and Comverge, Inc., a corporation organized under the laws of Delaware (“COMVERGE”), collectively referred\nto as “Parties”.\nWHEREAS, COMVERGE and TELCO have entered into an agreement whereby Telco will supply certain products to Comverge (the “Supply\nAgreement”); and\nWHEREAS, the Parties and their affiliates will provide confidential and proprietary information and materials to each other which the Parties\nseek to keep confidential.\nNOW THEREFORE, the Parties agree as follows:\n1. Project Defined. The Parties may be receiving from each other information of a non-public nature for use by the Parties in the course of\ncarrying out their respective duties under the Supply Agreement relating to the manufacture, assemble, test and supply certain products for\nComverge (the “Project”).\n2. Confidential Information Defined. The Parties acknowledge that, in the course of the Project, each of the Parties will receive certain non-\npublic and confidential information, from or about each other, including but not limited to technical, financial and business information and models,\nnames of existing or potential suppliers, customers or partners, proposed business deals, reports, plans, market projections, products, services,\nsoftware programs, data or any other confidential and proprietary information relating to the Project. All such technical, financial or other business\ninformation supplied by either of the Parties or their representatives is hereinafter called the “Confidential Information” provided that it is identified\nand clearly marked as such. The term “Confidential Information” as used herein also includes the Project itself and any information, work papers,\nanalyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced by either of\nthe Parties or their representatives for each other which contain or otherwise reflect confidential or proprietary information provided by either of the\nParties in connection with the Project provided that all such information is identified and clearly marked “Confidential”. Any Confidential\nInformation supplied in connection with the Project by either of the Parties prior to the execution of this Agreement shall be considered in the same\nmanner and be subject to the same treatment as the Confidential Information made available hereunder after the execution of this Agreement.\n3. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which: (a) is\nalready known to the receiving party on a nonproprietary basis at the time it is disclosed to the receiving party; (b) is or becomes generally known to\nthe public through no wrongful act of the receiving party or its representatives; (c) has been rightfully received by the receiving party from a third\nparty without restriction on disclosure and without a breach of an obligation of confidentiality running directly to the providing party; or (d) has been\napproved for release by written authorization by the originating party.\n4. Non-disclosure Obligation. The receiving party shall keep the Confidential Information confidential and shall not disclose such Confidential\nInformation, in whole or in part, to any person other than its agents, representatives and employees who need to know such Confidential Information\nin connection with the receiving party’s performance of services in connection with the Project, except with the prior written consent of the\noriginating party or as otherwise permitted hereunder. The Confidential Information shall be used by the receiving party solely for the purpose of\nperforming services in connection with the Project, and shall not be\nComverge — Proprietary and Confidential 19 9/28/2004\notherwise used without the originating party’s prior written consent. The receiving party agrees that it may disclose the Confidential Information\nonly to those of their agents and representatives who have been identified to the originating party in writing and whom the originating party has\nagreed in writing need to know the Confidential Information for the purpose of assisting the Parties in connection with the Project. Prior to\ndisseminating any of the Confidential Information to any agent and/or representative permitted herein, the receiving party shall advise recipients of\nsuch information of its confidential nature, and shall require such agent and/or representative to agree, in writing, to maintain the confidentiality of\nthe Confidential Information and to be bound by all the terms, conditions and restrictions of this Agreement. The Parties may add agents and/or\nrepresentatives to the list previously identified herein by giving each other prior written notice and by complying with the remaining provisions of\nthis Paragraph 4. The Confidential Information shall be used by the receiving party solely in connection with the Project, and shall not be otherwise\nused by the receiving party for its own benefit or for any purpose detrimental to the interest of the originating party.\n5. Standard of Protection. For the purpose of complying with the obligations set forth herein, the receiving party shall use a high standard of\ncare, no less than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.\n6. Compliance with Legal Process. In the event that the receiving party is legally requested or required (by oral questions, interrogatories,\nrequests for information or documents, subpoena, civil investigative demand or similar process or, in the opinion of counsel for the receiving party,\nby applicable statutes, regulations or laws) to disclose any Confidential Information, the receiving party shall promptly notify the originating party of\nsuch request or requirement prior to disclosure so that the originating party may seek an appropriate protective order and/or waive compliance with\nthe terms of this Agreement.\n7. Ownership; Return of Information. Except as otherwise set forth in the Supply Agreement, all Confidential Information (including tangible\ncopies and computerized or electronic versions thereof and also all Confidential Information contained in all deliverables and work papers),\nincluding all intellectual property rights pertaining thereto, shall be the property of the originating party. No later than ten (10) days following the\nreceipt of a written request from the originating party, the receiving party shall deliver to the originating party all Confidential Information, together\nwith a certificate executed by the agent and/or representative or principal of the receiving party certifying that all such materials in the receiving\nparty possession or control have been delivered to the originating party or destroyed. The receiving party shall not directly or indirectly assert any\nright with respect to any of the Confidential Information that may impair or be adverse to the originating party’s ownership thereof.\n8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this\nAgreement and that the originating party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to\nremedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this\nAgreement, but shall be in addition to all other rights and remedies available at law or in equity.\n9. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for and\nduring the term of the Agreement. However, the obligations of the receiving party to maintain the confidentiality of the Confidential Information it\nhas received under this Agreement and its restriction on the use of such Confidential Information shall continue for a period of five years after the\nexpiration or termination of the Supply Agreement Notwithstanding the previous sentence, Confidential Information relating to TELCO’s customer\ninformation shall be subject to a perpetual obligation of confidentiality.\n10. No Waiver. No failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or\nprivilege hereunder.\n11. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both\nParties hereto.\nComverge — Proprietary and Confidential 20 9/28/2004\n12 Applicability to Affiliated Parties. Any information disclosed to the receiving party by any of the originating party’s affiliates or by any\ncompany, person or other entity participating with the originating party, in any consortium, partnership, joint venture or similar business combination\nin direct connection with the Project, which would otherwise constitute Confidential Information hereunder if disclosed by the originating party,\nshall be deemed to constitute Confidential Information under this Agreement, and the rights of the originating party under this Agreement may be\nenforced by any such affiliate or other entity in addition to the originating party with respect to any violation relating to such Confidential\nInformation disclosed by such affiliate or other entity, as if such entity were also a party to this Agreement. For purposes of this agreement, an\n“affiliate” means an entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with,\nsuch entity.\n13. Attorneys’ Fees. Should the originating party or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an\naction at law or in equity to enforce any of the terms or conditions of this Agreement caused by the breach or default by the receiving party, and\nprevails in such action, the receiving party shall reimburse the impaired party or any such beneficiary for all reasonable attorneys’ fees and costs\nincurred pursuing such proceeding.\n14. Governing Law. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of\nTennessee.\nIN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above written.\nComverge, Inc. Telco Solutions III, L1.C\nBy: /s/ Wayne Wren By: /s/ Timothy J. Knox\nName: Wayne Wren Name: Timothy J. Knox\nTitle: EVP Title: President & CEO\nDate: 9.28.04 Date: September 29, 2004\nComverge — Proprietary and Confidential 21 9/28/2004	Attachment B\nNon-Disclosure Agreement\nTHIS AGREEMENT is made as of the 28 of September, 2004 by and between Telco Solutions III, LLC, a corporation organized under the\nlaws of\n("TELCO"), and Comverge, Inc., a corporation organized under the laws of Delaware ("COMVERGE"), collectively referred\nto as "Parties".\nWHEREAS, COMVERGE and TELCO have entered into an agreement whereby Telco will supply certain products to Comverge (the "Supply\nAgreement"); and\nWHEREAS, the Parties and their affiliates will provide confidential and proprietary information and materials to each other which the Parties\nseek to keep confidential.\nNOW THEREFORE, the Parties agree as follows:\n1. Project Defined. The Parties may be receiving from each other information of a non-public nature for use by the Parties in the course of\ncarrying out their respective duties under the Supply Agreement relating to the manufacture, assemble, test and supply certain products for\nComverge (the "Project").\n2. Confidential Information Defined. The Parties acknowledge that, in the course of the Project, each of the Parties will receive certain non-\npublic and confidential information, from or about each other, including but not limited to technical, financial and business information and models,\nnames of existing or potential suppliers, customers or partners, proposed business deals, reports, plans, market projections, products, services,\nsoftware programs, data or any other confidential and proprietary information relating to the Project. All such technical, financial or other business\ninformation supplied by either of the Parties or their representatives is hereinafter called the "Confidential Information" provided that it is identified\nand clearly marked as such. The term "Confidential Information" as used herein also includes the Project itself and any information, work papers,\nanalyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced by either of\nthe Parties or their representatives for each other which contain or otherwise reflect confidential or proprietary information provided by either of the\nParties in connection with the Project provided that all such information is identified and clearly marked "Confidential". Any Confidential\nInformation supplied in connection with the Project by either of the Parties prior to the execution of this Agreement shall be considered in the same\nmanner and be subject to the same treatment as the Confidential Information made available hereunder after the execution of this Agreement.\n3. Exclusions from Definition. The term "Confidential Information" as used herein does not include any data or information which: (a) is\nalready known to the receiving party on a nonproprietary basis at the time it is disclosed to the receiving party; (b) is or becomes generally known to\nthe public through no wrongful act of the receiving party or its representatives; (c) has been rightfully received by the receiving party from a third\nparty without restriction on disclosure and without a breach of an obligation of confidentiality running directly to the providing party; or (d) has been\napproved for release by written authorization by the originating party.\n4. Non-disclosure Obligation. The receiving party shall keep the Confidential Information confidential and shall not disclose such Confidential\nInformation, in whole or in part, to any person other than its agents, representatives and employees who need to know such Confidential Information\nin\nconnection with the receiving party's performance of services in connection with the Project, except with the prior written consent of the\noriginating party or as otherwise permitted hereunder. The Confidential Information shall be used by the receiving party solely for the purpose of\nperforming services in connection with the Project, and shall not be\nComverge - Proprietary and Confidential\n19\n9/28/2004\notherwise used without the originating party's prior written consent. The receiving party agrees that it may disclose the Confidential Information\nonly to those of their agents and representatives who have been identified to the originating party in writing and whom the originating party has\nagreed in writing need to know the Confidentia Information for the purpose of assisting the Parties in connection with the Project. Prior to\ndisseminating any of the Confidential Information to any agent and/or representative permitted herein, the receiving party shall advise recipients of\nsuch information of its confidential nature, and shall require such agent and/or representative to agree, in writing, to maintain the confidentiality of\nthe Confidential Information and to be bound by all the terms, conditions and restrictions of this Agreement. The Parties may add agents and/or\nrepresentatives to the list previously identified herein by giving each other prior written notice and by complying with the remaining provisions of\nthis Paragraph 4. The Confidential Information shall be used by the receiving party solely in connection with the Project, and shall not be otherwise\nused by the receiving party for its own benefit or for any purpose detrimental to the interest of the originating party.\n5. Standard of Protection. For the purpose of complying with the obligations set forth herein, the receiving party shall use a high standard of\ncare, no less than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.\n6. Compliance with Legal Process. In the event that the receiving party is legally requested or required (by oral questions, interrogatories,\nrequests for information or documents, subpoena, civil investigative demand or similar process or, in the opinion of counsel for the receiving party,\nby applicable statutes, regulations or laws) to disclose any Confidential Information, the receiving party shall promptly notify the originating party of\nsuch request or requirement prior to disclosure so that the originating party may seek an appropriate protective order and/or waive compliance with\nthe terms of this Agreement.\n7. Ownership; Return of Information. Except as otherwise set forth in the Supply Agreement, all Confidential Information (including tangible\ncopies and computerized or electronic versions thereof and also all Confidential Information contained in all deliverables and work papers),\nincluding all intellectual property rights pertaining thereto, shall be the property of the originating party. No later than ten (10) days following the\nreceipt of a written request from the originating party, the receiving party shall deliver to the originating party all Confidential Information, together\nwith a certificate executed by the agent and/or representative or principal of the receiving party certifying that all such materials in the receiving\nparty possession or control have been delivered to the originating party or destroyed. The receiving party shall not directly or indirectly assert any\nright with respect to any of the Confidential Information that may impair or be adverse to the originating party's ownership thereof.\n8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this\nAgreement and that the originating party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief\nto\nremedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this\nAgreement, but shall be in addition to all other rights and remedies available at law or in equity.\n9. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for and\nduring the term of the Agreement. However, the obligations of the receiving party to maintain the confidentiality of the Confidential Information\nit\nhas received under this Agreement and its restriction on the use of such Confidential Information shall continue for a period of five years after the\nexpiration or termination of the Supply Agreement Notwithstanding the previous sentence, Confidential Information relating to TELCO'S customer\ninformation shall be subject to a perpetual obligation of confidentiality.\n10. No Waiver. No failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power\nor\nprivilege hereunder.\n11. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both\nParties hereto.\nComverge Proprietary and Confidential\n20\n9/28/2004\n12 Applicability. to Affiliated Parties. Any information disclosed to the receiving party by any of the originating party's affiliates or by any\ncompany, person or other entity participating with the originating party, in any consortium, partnership, joint venture or similar business combination\nin direct connection with the Project, which would otherwise constitute Confidential Information hereunder if disclosed by the originating party,\nshall be deemed to constitute Confidential Information under this Agreement, and the rights of the originating party under this Agreement may be\nenforced by any such affiliate or other entity in addition to the originating party with respect to any violation relating to such Confidential\nInformation disclosed by such affiliate or other entity, as if such entity were also a party to this Agreement. For purposes of this agreement, an\n"affiliate" means an entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with,\nsuch entity.\n13.\nAttorneys' Fees. Should the originating party or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an\naction at law or in equity to enforce any of the terms or conditions of this Agreement caused by the breach or default by the receiving party, and\nprevails in such action, the receiving party shall reimburse the impaired party or any such beneficiary for all reasonable attorneys' fees and costs\nincurred pursuing such proceeding.\n14.\nGoverning. Law. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of\nTennessee.\nIN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above written.\nComverge, Inc.\nTelco Solutions III, LLC\nBy: /s/ Wayne Wren\nBy: /s/ Timothy J. Knox\nName: Wayne Wren\nName: Timothy J. Knox\nTitle: EVP\nTitle: President & CEO\nDate: 9.28.04\nDate: September 29, 2004\nComverge - Proprietary and Confidential\n21\n9/28/2004	Attachment B\nNon-Disclosure Agreement\nTHIS AGREEMENT is made as of the 28 of September, 2004 by and between Telco Solutions III, LLC, a corporation organized under the\nlaws of\n(“TELCO”), and Comverge, Inc., a corporation organized under the laws of Delaware (“COMVERGE”), collectively referred\nto as “Parties”.\nWHEREAS, COMVERGE and TELCO have entered into an agreement whereby Telco will supply certain products to Comverge (the “Supply\nAgreement”); and\nWHEREAS, the Parties and their affiliates will provide confidential and proprietary information and materials to each other which the Parties\nseek to keep confidential.\nNOW THEREFORE, the Parties agree as follows:\n1. Project Defined. The Parties may be receiving from each other information of a non-public nature for use by the Parties in the course of\ncarrying out their respective duties under the Supply Agreement relating to the manufacture, assemble, test and supply certain products for\nComverge (the “Project”).\n2. Confidential Information Defined. The Parties acknowledge that, in the course of the Project, each of the Parties will receive certain non-\npublic and confidential information, from or about each other, including but not limited to technical, financial and business information and models,\nnames of existing or potential suppliers, customers or partners, proposed business deals, reports, plans, market projections, products, services,\nsoftware programs, data or any other confidential and proprietary information relating to the Project. All such technical, financial or other business\ninformation supplied by either of the Parties or their representatives is hereinafter called the “Confidential Information” provided that it is identified\nand clearly marked as such. The term “Confidential Information” as used herein also includes the Project itself and any information, work papers,\nanalyses, compilations, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced by either of\nthe Parties or their representatives for each other which contain or otherwise reflect confidential or proprietary information provided by either of the\nParties in connection with the Project provided that all such information is identified and clearly marked “Confidential”. Any Confidential\nInformation supplied in connection with the Project by either of the Parties prior to the execution of this Agreement shall be considered in the same\nmanner and be subject to the same treatment as the Confidential Information made available hereunder after the execution of this Agreement.\n3. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which: (a) is\nalready known to the receiving party on a nonproprietary basis at the time it is disclosed to the receiving party; (b) is or becomes generally known to\nthe public through no wrongful act of the receiving party or its representatives; (c) has been rightfully received by the receiving party from a third\nparty without restriction on disclosure and without a breach of an obligation of confidentiality running directly to the providing party; or (d) has been\napproved for release by written authorization by the originating party.\n4. Non-disclosure Obligation. The receiving party shall keep the Confidential Information confidential and shall not disclose such Confidential\nInformation, in whole or in part, to any person other than its agents, representatives and employees who need to know such Confidential Information\nin connection with the receiving party’s performance of services in connection with the Project, except with the prior written consent of the\noriginating party or as otherwise permitted hereunder. The Confidential Information shall be used by the receiving party solely for the purpose of\nperforming services in connection with the Project, and shall not be\nComverge – Proprietary and Confidential\n19\n9/28/2004\notherwise used without the originating party’s prior written consent. The receiving party agrees that it may disclose the Confidential Information\nonly to those of their agents and representatives who have been identified to the originating party in writing and whom the originating party has\nagreed in writing need to know the Confidential Information for the purpose of assisting the Parties in connection with the Project. Prior to\ndisseminating any of the Confidential Information to any agent and/or representative permitted herein, the receiving party shall advise recipients of\nsuch information of its confidential nature, and shall require such agent and/or representative to agree, in writing, to maintain the confidentiality of\nthe Confidential Information and to be bound by all the terms, conditions and restrictions of this Agreement. The Parties may add agents and/or\nrepresentatives to the list previously identified herein by giving each other prior written notice and by complying with the remaining provisions of\nthis Paragraph 4. The Confidential Information shall be used by the receiving party solely in connection with the Project, and shall not be otherwise\nused by the receiving party for its own benefit or for any purpose detrimental to the interest of the originating party.\n5. Standard of Protection. For the purpose of complying with the obligations set forth herein, the receiving party shall use a high standard of\ncare, no less than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.\n6. Compliance with Legal Process. In the event that the receiving party is legally requested or required (by oral questions, interrogatories,\nrequests for information or documents, subpoena, civil investigative demand or similar process or, in the opinion of counsel for the receiving party,\nby applicable statutes, regulations or laws) to disclose any Confidential Information, the receiving party shall promptly notify the originating party of\nsuch request or requirement prior to disclosure so that the originating party may seek an appropriate protective order and/or waive compliance with\nthe terms of this Agreement.\n7. Ownership; Return of Information. Except as otherwise set forth in the Supply Agreement, all Confidential Information (including tangible\ncopies and computerized or electronic versions thereof and also all Confidential Information contained in all deliverables and work papers),\nincluding all intellectual property rights pertaining thereto, shall be the property of the originating party. No later than ten (10) days following the\nreceipt of a written request from the originating party, the receiving party shall deliver to the originating party all Confidential Information, together\nwith a certificate executed by the agent and/or representative or principal of the receiving party certifying that all such materials in the receiving\nparty possession or control have been delivered to the originating party or destroyed. The receiving party shall not directly or indirectly assert any\nright with respect to any of the Confidential Information that may impair or be adverse to the originating party’s ownership thereof.\n8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this\nAgreement and that the originating party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to\nremedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this\nAgreement, but shall be in addition to all other rights and remedies available at law or in equity.\n9. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for and\nduring the term of the Agreement. However, the obligations of the receiving party to maintain the confidentiality of the Confidential Information it\nhas received under this Agreement and its restriction on the use of such Confidential Information shall continue for a period of five years after the\nexpiration or termination of the Supply Agreement Notwithstanding the previous sentence, Confidential Information relating to TELCO’s customer\ninformation shall be subject to a perpetual obligation of confidentiality.\n10. No Waiver. No failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or\nprivilege hereunder.\n11. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both\nParties hereto.\nComverge – Proprietary and Confidential\n20\n9/28/2004\n12 Applicability to Affiliated Parties. Any information disclosed to the receiving party by any of the originating party’s affiliates or by any\ncompany, person or other entity participating with the originating party, in any consortium, partnership, joint venture or similar business combination\nin direct connection with the Project, which would otherwise constitute Confidential Information hereunder if disclosed by the originating party,\nshall be deemed to constitute Confidential Information under this Agreement, and the rights of the originating party under this Agreement may be\nenforced by any such affiliate or other entity in addition to the originating party with respect to any violation relating to such Confidential\nInformation disclosed by such affiliate or other entity, as if such entity were also a party to this Agreement. For purposes of this agreement, an\n“affiliate” means an entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with,\nsuch entity.\n13. Attorneys’ Fees. Should the originating party or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an\naction at law or in equity to enforce any of the terms or conditions of this Agreement caused by the breach or default by the receiving party, and\nprevails in such action, the receiving party shall reimburse the impaired party or any such beneficiary for all reasonable attorneys’ fees and costs\nincurred pursuing such proceeding.\n14. Governing Law. This Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of\nTennessee.\nIN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above written.\nComverge, Inc.\nTelco Solutions III, LLC\nBy: /s/ Wayne Wren\nBy: /s/ Timothy J. Knox\nName: Wayne Wren\nTitle: EVP\nName: Timothy J. Knox\nTitle: President & CEO\nDate: 9.28.04\nDate: September 29, 2004\nComverge – Proprietary and Confidential\n21\n9/28/2004
+970f662e9a542254ed4204735f18db71.pdf	effective_date jurisdiction party	EXECUTION VERSION\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION and CONFIDENTIALITY AGREEMENT (“Agreement”) is made and\nentered into this 1st day of September, 2012, by and between Myers Industries, Inc., an Ohio Corporation (the\n“Company”), and Gregg Branning (the “Employee”).\nRECITALS:\n1. The Company is a diversified international manufacturer of polymer products for the industrial,\nagricultural, automotive, commercial and consumer markets and distributor of tools, equipment and supplies\nfor tire service and under vehicle repair. The Company currently operates through four (4) business segments\nincluding Lawn & Garden, Material Handling, Distribution, and Engineered Products (collectively, the\n“Business Segments”).\n2. Employee is being employed by the Company as its Executive Vice President, Chief Financial\nOfficer and Secretary.\n3. The Company has acquired and established valuable and competitively sensitive information\nthrough its business, research, development and practices, which information is described more extensively\nherein, and is collectively referred to as the “Confidential Information.” To protect the business interests of the\nCompany and the competitive advantage derived from the Confidential Information, it is necessary that such\nConfidential Information be kept secret and confidential.\n4. The Employee, from and after the commencement of employment with the Company, will be\nengaged in activities such that the Employee will have extensive access to and become familiar with, and may\ndevelop or contribute to, some or all of the Company’s Confidential Information in all of its Business\nSegments. In addition, Employee may have extensive contact with the customers of the Company and may\ndevelop relationships with such customers on behalf of the Company. The Employee recognizes that the\nConfidential Information and the Company’s customer relationships are vital to the success of the Company\nand that extensive, irreparable harm would result were such Confidential Information to be disclosed outside\nthe Company or if Employee were to engage in activity which competes with the Company.\nNOW, THEREFORE, in view of the above and in consideration for the mutual covenants and promises\nset forth below, the parties agree as follows:\n1.Confidential Information: For purposes of this Agreement, Confidential\nInformation includes, but is not limited to, business plans and strategies,\nmarketing plans and strategies, customer lists, customer purchasing\ninformation, customer contact information, product design and development\ninformation, methods of operation, technical services, non-public financial\ninformation, business development plans and strategies, system analyses,\nquality control programs and information, computer programs, software and\nhardware configurations, information regarding the terms of the Company’s\nrelationships with suppliers, pricing information, processes and techniques,\ncreations, innovations, and any other information which the Company may\nreasonably treat or designate as confidential from time to time. The Company\nbelieves that all Confidential Information constitutes trade secret information\nunder applicable law. Employee shall, however, maintain the confidentiality of\nall Confidential Information whether or not ultimately determined to be a\ntrade secret.\n2. Confidentiality and Non-Competition:\nA. Covenants\n(a) Employee acknowledges that the Company would be irreparably injured\nand the good will of the Company would be irreparably damaged if Employee were to\nbreach the covenants set forth in this Paragraph 2. Employee further acknowledges\nthat the covenants set forth in this Paragraph 2 are reasonable in scope and duration\nand do not unreasonably restrict Employee’s association with other business entities,\neither as an employee or otherwise as set forth herein. For purposes of this Paragraph\n2, the Company will include all its Business Segments now or subsequently existing.\n(b) During Employee’s employment with the Company and any time thereafter,\nexcept as may be required by law, Employee shall not, directly or indirectly, disclose,\ndisseminate, reveal, divulge, discuss, copy or otherwise use or suffer to be used, any\nConfidential Information other than in the authorized scope of Employee’s\nemployment with the Company. Upon termination of employment, no matter what the\nreason for such termination, and at any other time upon the request of the Company,\nEmployee shall immediately return to the Company any and all Confidential\nInformation, and all other materials, property and information in tangible or\nelectronic form concerning the business and affairs of the Company and/or its\ncustomers.\n(c) Employee agrees that during Employee’s employment and for a period of\nthree (3) years following the termination of such employment, no matter what the\nreason for such termination, Employee will not directly or indirectly, whether on\nEmployee’s own behalf or on behalf of any other person or entity, do or suffer any of\nthe following\n(i) Own, manage, control, participate in the ownership, management or\ncontrol of, be employed or engaged by or otherwise affiliated or associated as a\nconsultant, independent contractor or otherwise with, any person or business entity\nthat competes with the Company in the United States or in any geographic area(s)\noutside the United States in which the Company does business (the “Restricted\nTerritory”). Without limiting the generality and scope of the foregoing, any\nbusiness entity or person providing products or services competitive with those of\nthe Company in the Restricted Territory from either inside or outside the\nRestricted Territory is deemed to be competing within the Restricted Territory. For\npurposes of this Agreement, the phrase “competes with” means providing services\nand products which are the same as, similar to, reasonably substitutable for, or\notherwise capable of displacing the services and products of the Company.\nNotwithstanding the foregoing, Employee’s passive investment ownership of not\nmore than one percent (1%) of the stock of any publicly traded corporation shall\nnot be deemed a violation of this provision.\n(ii) Solicit, provide, sell, attempt to provide or sell, or otherwise deliver or\nsupply any products or services which compete with the products or services of the\nCompany to any person or business entity which is or was a customer or\nprospective customer of the Company at any time during the last thirty-six (36)\nmonths of Employee’s employment, nor shall Employee in any way assist any other\nperson or entity in such activity. For purposes of this Agreement, (1) the phrase\n“products or services which compete with the products or services of the Company\nmeans products or services which are the same as, similar to, reasonably\nsubstitutable for, or otherwise capable of displacing the products or services of the\nCompany; and (2) the term “prospective customer” means any person or entity the\nCompany solicited, called on or otherwise specifically identified as a target for the\nsale of its products or services.\n(iii) Solicit, hire or otherwise engage the services of any person who then\ncurrently is, or who at any time during Employee’s employment with the Company\nwas, an employee, consultant or independent contractor of the Company, or\notherwise encourage or induce any such person to discontinue his or her\nrelationship with the Company. Employee will not engage in any business\nrelationship with any subcontractor, supplier or service provider of the Company\nwhich interferes with the Company’s relationship with such subcontractor, supplier\nor service provider, or in any way causes such subcontractor, supplier or service\nprovider to reduce, alter, modify or discontinue the business it (they) do(es) with\nthe Company or any of its affiliates.\n3.\nInventions: Employee hereby expressly agrees that all research\ndiscoveries, inventions and innovations (whether or not reduced to practice or\ndocumented), improvements, developments, methods, designs, analyses,\ndrawings, reports and all similar or related information (whether patentable\nor unpatentable, and whether or not reduced to writing), Confidential\nInformation and copyrightable works, and similar and related information (in\nwhatever form or medium), which (3) either (i) relate to the Company’s or its\naffiliates’ actual or anticipated business, research and development or existing\nor future products or services or (ii) result from or are suggested by any work\nperformed by the Employee for the Company or its affiliates and (3) are\nconceived, developed, made or contributed to in whole or in part by the\nEmployee during his employment (“Work Product”) shall be and remain the\nsole and exclusive property of the Company or such affiliate.\n(ii)\nWork Made for Hire. The Employee acknowledges that, unless\notherwise agreed in writing by the Company, all Work Product eligible for any\nform of copyright, trademark or patent protection made or contributed to in whole\nor in part by the Employee within the scope of Employee’s employment by the\ncompany during the period of Employee’s employment with the Company shall be\ndeemed a “work made for hire” and shall be owned by the Company or its\naffiliates, as applicable.\n(iii)\nAssignment of Proprietary Rights. The Employee hereby assigns,\ntransfers and conveys to the Company, and shall assign, transfer and convey to the\nCompany, all right, title and interest in and to all inventions, ideas, improvements,\ndesigns, processes, patent rights, copyrights, trademarks, service marks, trade\nnames, trade secrets, trade dress, data, discoveries and other proprietary assets and\nproprietary rights in and of the Work Product (the “Proprietary Rights”) for the\nCompany’s exclusive ownership and use, together with all rights to sue and recover\nfor past and future infringement or misappropriation thereof provided that if an\naffiliate of the Company is the owner thereof; such assignment, transfer and\nconveyance shall be made to such affiliate, which shall enjoy exclusive ownership\nand use, together with all rights to sue and recover for past and future infringement\nor misappropriation thereof.\n(iv) Further Instruments. At the request of the Company (or its affiliates, as\nthe case may be), at all times during Employee’s employment with the Company\nand thereafter, the Employee will promptly and fully assist the Company (or its\naffiliates, as the case may be) in effecting the purpose of the foregoing assignment,\nincluding but not limited to the further acts of executing any and all documents\nnecessary to secure for the Company (or its affiliates, as the case may be) such\nProprietary Rights and other rights to all Work Product and all confidential\ninformation related thereto, providing cooperation and giving testimony.\n(v) Inapplicability of Section 3(d) In Certain Circumstances. The Company\nexpressly acknowledges and agrees that, and the Employee is hereby advised that,\nthis Section 3(d) does not apply to any invention for which no equipment, supplies,\nfacilities, trade secret information or Confidential Information of the Company or\nits affiliates was used and which was developed entirely on the Employee’s own\ntime, unless (3) the invention relates to the business of the Company or its affiliates,\nor to the Company’s or its affiliates’ actual or demonstrably anticipated research\nor development or (3) the invention results from or is suggested by any work\nperformed or observed by the Employee for the Company or any of its affiliates.\n4. Remedies: Employee acknowledges that the restrictions contained in\nparagraphs 2 and 3 of this Agreement are reasonable in light of Employee’s\nposition with the Company and are necessary to protect the Company from\nunfair competitive harm. Employee further acknowledges that any breach of\nthis Agreement will result in immediate irreparable harm to the Company and\nthat the Company shall be entitled to immediate injunctive relief upon any\nsuch breach, in addition to all other legal and equitable remedies the\nCompany may have. This Agreement is to be construed as separate and\nindependent from any other obligations and any claim by Employee asserted\nagainst the Company and shall not constitute a defense to the enforcement of\nthis Agreement. In the event any court determines that the restrictions set\nforth herein are unreasonable or unenforceable for any reason, the court will\nenforce such restrictions to the fullest extent permitted by law.\n5. Position of Employment: Employee expressly acknowledges that the\nobligations contained in paragraphs 2 and 3 of this Agreement shall remain in\nfull force and effect during Employee’s employment in any position with the\nCompany, with respect to any Confidential Information of the Company.\n6. Validity: In the event any provision of this Agreement, or portion\nthereof, is held by a court of competent jurisdiction to be unreasonable,\narbitrary, or against public policy, then such provision, or portion thereof,\nshall be enforced against the Employee to the extent the court deems to be\nreasonable or in accordance with public policy. In the event any provision of\nthis Agreement shall for any reason be wholly invalid, or unenforceable in any\nrespect, such invalidity shall not affect the validity of any remaining portion\nwhich shall remain in full force and effect as if the invalid portion was never\npart of this Agreement.\n7.\nMiscellaneous: Employee acknowledges that the Employee has\ncarefully read this entire Agreement and fully agrees with and understands all\nof the provisions the hereof. This Agreement supersedes all prior agreements\nbetween the Company and the Employee regarding the subject matter of this\nAgreement and constitutes the entire agreement between the parties with\nrespect to such subject matter. The Employee further agrees that in executing\nthis Agreement, the Employee has not relied on any written or oral\nrepresentations, promises, conditions, or understandings of the Company,\nexpress or implied, except as set forth herein. This Agreement may not be\namended or modified other than in writing signed by the parties. This\nAgreement and any disputes arising thereunder shall be governed by the laws\nof the State of Ohio without regard to any State’s choice of law, rules or\nprinciples. Employee and the Company expressly agree that any legal action\narising out of or related to this Agreement will be brought exclusively in the\nstate or federal courts located in Summit County, Ohio, and each party\nexpressly consents to the jurisdiction of such courts and waives any and all\nobjections to the jurisdiction or venue thereof. This Agreement may be\nassigned to any successor-in-interest to the business of the Company without\nthe consent of Employee, but may not be assigned by Employee to any third\nparty. This Agreement is not a contract of employment for any definite period\nand Employee acknowledges that Employee’s employment with the Company\nis terminable at-will.\nIN WITNESS WHEREOF, the parties have hereunto executed this\nAgreement as of the date first set forth above.\nDate: _September 1, 2012__________\nMyers Industries, Inc.\nBy: _/s/ John C. Orr_______________________\nDate: _September 1, 2012___________\nEmployee\nSignature: _/s/ Greggory W. Branning________\nPrint Name: Gregg Branning\n7268294 v1	EXECUTION VERSION\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION and CONFIDENTIALITY AGREEMENT (”Agreement”) is made and\nentered into this lst day of September, 2012, by and between Myers Industries, Inc., an Ohio Corporation (the\n”Company”), and Gregg Branning (the ”Employee”).\nRECITALS:\n1. The Company is a diversified international manufacturer of polymer products for the industrial,\nagricultural, automotive, commercial and consumer markets and distributor of tools, equipment and supplies\nfor tire service and under vehicle repair. The Company currently operates through four (4) business segments\nincluding Lawn & Garden, Material Handling, Distribution, and Engineered Products (collectively, the\n”Business Segments”).\n2. Employee is being employed by the Company as its Executive Vice President, Chief Financial\nOfficer and Secretary.\n3. The Company has acquired and established valuable and competitively sensitive information\nthrough its business, research, development and practices, which information is described more extensively\nherein, and is collectively referred to as the ”Confidential Information.” To protect the business interests of the\nCompany and the competitive advantage derived from the Confidential Information, it is necessary that such\nConfidential Information be kept secret and confidential.\n4. The Employee, from and after the commencement of employment with the Company, will be\nengaged in activities such that the Employee will have extensive access to and become familiar with, and may\ndevelop or contribute to, some or all of the Company’s Confidential Information in all of its Business\nSegments. In addition, Employee may have extensive contact with the customers of the Company and may\ndevelop relationships with such customers on behalf of the Company. The Employee recognizes that the\nConfidential Information and the Company’s customer relationships are vital to the success of the Company\nand that extensive, irreparable harm would result were such Confidential Information to be disclosed outside\nthe Company or if Employee were to engage in activity which competes with the Company.\nNOW, THEREFORE, in view of the above and in consideration for the mutual covenants and promises\nset forth below, the parties agree as follows:\n1.C onfidential Information: For purgoses of this Agreement, C onfidential\nInformation includes, But is not limite to, business plans and strategies,\ninarketirig plans and strategies, customer lists, customer purchasm\ninformation, customer contact information, product des1gn and developmen\ninformation, methods of olieration, technical serVices, . non-public finanCial\ninformation, bus1ness deve opment plans and strategies, system analyses\nquality control. programs and information, computer programs software an\nhardware configurations! informationiregardirig the terms of the Company’s\nrelationships Wlth. suppliers, priCing information, processes and techniques,\ncreations, innovations, and any other information which the Company may\nreasonably treat or designate as confidential from time to time. The Company\nbelieves that all Confidential Information constitutes trade secret. information\nunder a .pllcable law. Em loyee shall, however, maintain the confidentiality of\nIall (Con 1detnt1al Informa ion whether or not ultimately determined to be a\nra e secre .\n2. Confidentiality and Non-C ompetition:\nA. Covenants\n(a) Employee acknowledges that the Company would be irreparably injured\nand the good will of the Company would be irreparably damaged if Employee were to\nbreach the covenants set forth in this Paragraph 2. Employee further acknowledges\nthat the covenants set forth in this Paragraph 2 are reasonable in scope and duration\nand do not unreasonably restrict Employee's association with other business entities,\neither as an employee or otherwise as set forth herein. For purposes of this Paragraph\n2, the Company will include all its Business Segments now or subsequently existing.\n(b) During Employee's employment with the Company and any time thereafter,\nexcept as may be required by law, Employee shall not, directly or indirectly, disclose,\ndisseminate, reveal, divulge, discuss, copy or otherwise use or suffer to be used, any\nConfidential Information other than in the authorized scope of Employee's\nemployment with the Company. Upon termination of employment, no matter what the\nreason for such termination, and at any other time upon the request of the Company,\nEmployee shall immediately return to the Company any and all Confidential\nInformation, and all other materials, property and information in tangible or\nelectronic form concerning the business and affairs of the Company and/or its\ncustomers.\n(c) Employee agrees that during Employee's employment and for a period of\nthree (3) years following the termination of such employment, no matter what the\nreason for such termination, Employee will not directly or indirectly, whether on\nEmployee's own behalf or on behalf of any other person or entity, do or suffer any of\nthe following\n(i) Own, manage, control, participate in the ownership, management or\ncontrol of, be employed or engaged by or otherwise affiliated or associated as a\nconsultant, independent contractor or otherwise with, any person or business entity\nthat competes with the Company in the United States or in any geographic area(s)\noutside the United States in which the Company does business (the ”Restricted\nTerritory"). Without limiting the generality and scope of the foregoing, any\nbusiness entity or person providing products or services competitive with those of\nthe Company in the Restricted Territory from either inside or outside the\nRestricted Territory is deemed to be competing within the Restricted Territory. For\npurposes of this Agreement, the phrase ” competes with" means providing services\nand products which are the same as, similar to, reasonably substitutable for, or\notherwise capable of displacing the services and products of the Company.\nNotwithstanding the foregoing, Employee's passive investment ownership of not\nmore than one percent (1% ) of the stock of any publicly traded corporation shall\nnot be deemed a violation of this provision.\n(ii) Solicit, provide, sell, attempt to provide or sell, or otherwise deliver or\nsupply any products or services which compete with the products or services of the\nCompany to any person or business entity which is or was a customer or\nprospective customer of the Company at any time during the last thirty-six (36)\nmonths of Employee's employment, nor shall Employee in any way assist any other\nperson or entity in such activity. For purposes of this Agreement, (1) the phrase\n”products or services which compete with the products or services of the Company\nmeans products or services which are the same as, similar to, reasonably\nsubstitutable for, or otherwise capable of displacing the products or services of the\nCompany; and (2) the term ”prospective customer” means any person or entity the\nCompany solicited, called on or otherwise specifically identified as a target for the\nsale of its products or services.\n(iii) Solicit, hire or otherwise engage the services of any person who then\ncurrently is, or who at any time during Employee's employment with the Company\nwas, an employee, consultant or independent contractor of the Company, or\notherwise encourage or induce any such person to discontinue his or her\nrelationship with the Company. Employee will not engage in any business\nrelationship with any subcontractor, supplier or service provider of the Company\nwhich interferes with the Company's relationship with such subcontractor, supplier\nor service provider, or in any way causes such subcontractor, supplier or service\nprovider to reduce, alter, modify or discontinue the business it (they) do(es) with\nthe Company or any of its affiliates.\n3. Inventions: Employee hereby expressly agrees that all research\ndiscoveries, inventions and innovations (whether or not reduced to practice or\ndocumented), improvements, developments, methods, designs, analyses,\ndrawings, reports and all similar or related information (whether patentable\nor unpatentable, and whether or not reduced to writing), Confidential\nInformation and copyrightable works, and similar and related information (in\nwhatever form or medium), which (3) either (i) relate to the Company’s or its\naffiliates’ actual or anticipated business, research and development or existing\nor future products or services or (ii) result from or are suggested by any work\nperformed by the Employee for the Company or its affiliates and (3) are\nconceived, developed, made or contributed to in whole or in part by the\nEmployee during his employment (”Work Product”) shall be and remain the\nsole and exclusive property of the C ompany or such affiliate.\n(ii) Work Made for Hire. The Employee acknowledges that, unless\notherwise agreed in writing by the Company, all Work Product eligible for any\nform of copyright, trademark or patent protection made or contributed to in whole\nor in part by the Employee within the scope of Employee's employment by the\ncompany during the period of Employee's employment with the Company shall be\ndeemed a ”work made for hire” and shall be owned by the Company or its\naffiliates, as applicable.\n(iii) Assignment of Proprietary Rights. The Employee hereby assigns,\ntransfers and conveys to the Company, and shall assign, transfer and convey to the\nCompany, all right, title and interest in and to all inventions, ideas, improvements,\ndesigns, processes, patent rights, copyrights, trademarks, service marks, trade\nnames, trade secrets, trade dress, data, discoveries and other proprietary assets and\nproprietary rights in and of the Work Product (the ”Proprietary Rights") for the\nCompany' s exclusive ownership and use, together with all rights to sue and recover\nfor past and future infringement or misappropriation thereof provided that if an\naffiliate of the Company is the owner thereof; such assignment, transfer and\nconveyance shall be made to such affiliate, which shall enjoy exclusive ownership\nand use, together with all rights to sue and recover for past and future infringement\nor misappropriation thereof.\n(iv) Further Instruments. At the request of the Company (or its affiliates, as\nthe case may be), at all times during Employee's employment with the Company\nand thereafter, the Employee will promptly and fully assist the Company (or its\naffiliates, as the case may be) in effecting the purpose of the foregoing assignment,\nincluding but not limited to the further acts of executing any and all documents\nnecessary to secure for the Company (or its affiliates, as the case may be) such\nProprietary Rights and other rights to all Work Product and all confidential\ninformation related thereto, providing cooperation and giving testimony.\n(v) Inapplicability of Section 3(d) In Certain Circumstances. The Company\nexpressly acknowledges and agrees that, and the Employee is hereby advised that,\nthis Section 3(d) does not apply to any invention for which no equipment, supplies,\nfacilities, trade secret information or Confidential Information of the Company or\nits affiliates was used and which was developed entirely on the Employee's own\ntime, unless (3) the invention relates to the business of the Company or its affiliates,\nor to the Company's or its affiliates' actual or demonstrably anticipated research\nor development or (3) the invention results from or is suggested by any work\nperformed or observed by the Employee for the Company or any of its affiliates.\n4. Remedies: Employee acknowledges that the restrictions contained in\nparagraphs 2 and 3 of this Agreement are reasonable in light of Employee’s\nposition with the Company and are necessary to protect the Company from\nunfair competitive harm. Employee further acknowledges that any breach of\nthis Agreement will result in immediate irreparable harm to the C ompany and\nthat the Company shall be entitled to immediate injunctive relief upon any\nsuch breach, in addition to all other legal and equitable remedies the\nCompany may have. This Agreement is to be construed as separate and\nindependent from any other obligations and any claim by Employee asserted\nagainst the Company and shall not constitute a defense to the enforcement of\nthis Agreement. In the event any court determines that the restrictions set\nforth herein are unreasonable or unenforceable for any reason, the court will\nenforce such restrictions to the fullest extent permitted by law.\n5. Position of Employment: Employee expressly acknowledges that the\nobligations contained in paragraphs 2 and 3 of this Agreement shall remain in\nfull force and effect during Employee’s employment in any position with the\nC ompany, with respect to any C onfidential Information of the C ompany.\n6. Validity: In the event any provision of this Agreement, or portion\nthereof, is held by a court of competent jurisdiction to be unreasonable,\narbitrary, or against public policy, then such provision, or portion thereof,\nshall be enforced against the Employee to the extent the court deems to be\nreasonable or in accordance with public policy. In the event any provision of\nthis Agreement shall for any reason be wholly invalid, or unenforceable in any\nrespect, such invalidity shall not affect the validity of any remaining portion\nwhich shall remain in full force and effect as if the invalid portion was never\npart of this Agreement.\n7. Miscellaneous: Employee acknowledges that the Employee ha\ncarefully read this entire Agreement and fully agrees with and understands all\nof the provisions the hereof. This Agreement supersedes all prior agreements\nbetween the Company and the Employee regarding the subject matter of this\nAgreement and constitutes the entire agreement between the parties with\nrespect to such subject matter. The Employee further agrees that in executing\nthis Agreement, the Employee has not relied on any written or oral\nrepresentations, promises, conditions, or understandings of the Company,\nexpress or implied, except as set forth herein. This Agreement may not be\namended or modified other than in writing signed by the parties. This\nAgreement and any disputes arising thereunder shall be governed by the laws\nof the State of Ohio without regard to any State’s choice of law, rules or\nprinciples. Employee and the Company expressly agree that any legal action\narising out of or related to this Agreement will be brought exclusively in the\nstate or federal courts located in Summit County, Ohio, and each party\nexpressly consents to the jurisdiction of such courts and waives any and all\nobjections to the jurisdiction or venue thereof. This Agreement may be\nassigned to any successor-in-interest to the business of the Company without\nthe consent of Employee, but may not be assigned by Employee to any third\nparty. This Agreement is not a contract of employment for any definite period\nand Employee acknowledges that Employee’s employment with the Company\nis terminable at-will.\nIN WITNESS WHEREOF, the parties have hereunto executed this\nAgreement as of the date first set forth above.\nMyers Industries, Inc.\nBy: _/s/John C. Orr\n \nDate: _September 1, 2012\nEmployee\nSignature: _/s/ Greggory W. Branning\nPrint Name: Gregg Branning\nDate: _September 1, 2012\n7268294 V1	EXECUTION VERSION\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION and CONFIDENTIALITY AGREEMENT Agreement") is made and\nentered into this 1st day of September, 2012, by and between Myers Industries, Inc., an Ohio Corporation (the\n"Company") and Gregg Branning (the "Employee").\nRECITALS:\n1.\nThe Company is a diversified international manufacturer of polymer products for the industrial\nagricultural, automotive, commercial and consumer markets and distributor of tools, equipment and supplies\nfor tire service and under vehicle repair. The Company currently operates through four (4) business segments\nincluding Lawn & Garden, Material Handling Distribution, and Engineered Products (collectively, the\n"Business Segments").\n2.\nEmployee is being employed by the Company as its Executive Vice President, Chief Financial\nOfficer and Secretary.\n3.\nThe Company has acquired and established valuable and competitively sensitive information\nthrough its business, research, development and practices, which information is described more extensively\nherein, and is collectively referred to as the "Confidential Information." To protect the business interests of the\nCompany and the competitive advantage derived from the Confidential Information, it is necessary that such\nConfidential Information be kept secret and confidential.\n4. The Employee, from and after the commencement of employment with the Company, will be\nengaged in activities such that the Employee will have extensive access to and become familiar with, and may\ndevelop\nor\ncontribute\nto,\nsome\nor\nall\nof\nthe\nCompany's\nConfidential\nInformation\nin\nall\nof\nits\nBusiness\nSegments. In addition, Employee may have extensive contact with the customers of the Company and may\ndevelop relationships with such customers on behalf of the Company. The Employee recognizes that the\nConfidential Information and the Company's customer relationships are vital to the success of the Company\nand that extensive, irreparable harm would result were such Confidential Information to be disclosed outside\nthe Company or if Employee were to engage in activity which competes with the Company.\nNOW, THEREFORE in view of the above and in consideration for the mutual covenants and promises\nset forth below, the parties agree as follows:\nConfidential Information: For purposes of this Agreement, Confidential\nInformation includes, but is not limited to, business plans and strategies,\nmarketing plans and strategies, customer lists, customer purchasing\ninformation, customer contact information, product design and development\ninformation methods of operation, technical services, non-public financial\ninformation, business development plans and strategies, system analyses,\nquality control programs and information computer programs, software and\nhardware\nconfigurations,\ninformation\nregarding\nthe\nterms\nof\nthe\nCompany's\nrelationships with suppliers, pricing information, processes and techniques,\ncreations, innovations, and any other information which the Company may\nreasonably treat or designate as confidential from time to time. The Company\nbelieves that all Confidential Information constitutes trade secret information\nunder applicable law. Employee shall, however, maintain the confidentiality of\nall Confidential Information whether or not ultimately determined to be a\ntrade secret.\n2. Confidentiality and Non-Competition:\nA. Covenants\n(a)\nEmployee acknowledges that the Company would be irreparably injured\nand the good will of the Company would be irreparably damaged if Employee were to\nbreach the covenants set forth in this Paragraph 2. Employee further acknowledges\nthat the covenants set forth in this Paragraph 2 are reasonable in scope and duration\nand do not unreasonably restrict Employee's association with other business entities,\neither as an employee or otherwise as set forth herein. or purposes of this Paragraph\n2, the Company will include all its Business Segments now or subsequently existing.\n(b) During Employee's employment with the Company and any time thereafter,\nexcept as may be required by law, Employee shall not, directly or indirectly, disclose,\ndisseminate, reveal, divulge, discuss, copy or otherwise use or suffer to be used, any\nConfidential Information other than in the authorized scope of Employee's\nemployment with the Company. Upon termination of employment, no matter what the\nreason for such termination, and at any other time upon the request of the Company,\nEmployee shall immediately return to the Company any and all Confidential\nInformation, and all other materials, property and information in tangible or\nelectronic form concerning the business and affairs of the Company and/or its\ncustomers.\n(c) Employee agrees that during Employee's employment and for a period of\nthree (3) years following the termination of such employment, no matter what the\nreason for such termination, Employee will not directly or indirectly, whether on\nEmployee's own behalf or on behalf of any other person or entity, do or suffer any of\nthe following\n(i)\nOwn, manage, control, participate in the ownership, management or\ncontrol of, be employed or engaged by or otherwise affiliated or associated as a\nconsultant, independent contractor or otherwise with, any person or business entity\nthat competes with the Company in the United States or in any geographic area(s)\noutside the United States in which the Company does business (the "Restricted\nTerritory") Without limiting the generality and scope of the foregoing, any\nbusiness entity or person providing products or services competitive with those of\nthe Company in the Restricted Territory from either inside or outside the\nRestricted Territory is deemed to be competing within the Restricted Territory. For\npurposes of this Agreement, the phrase "competes with" means providing services\nand products which are the same as, similar to, reasonably substitutable for, or\notherwise capable of displacing the services and products of the Company.\nNotwithstanding the foregoing, Employee's passive investment ownership of not\nmore than one percent (1%) of the stock of any publicly traded corporation shall\nnot be deemed a violation of this provision.\n(ii) Solicit, provide, sell, attempt to provide or sell, or otherwise deliver or\nsupply any products or services which compete with the products or services of the\nCompany to any person or business entity which is or was a customer or\nprospective customer of the Company at any time during the last thirty-six (36)\nmonths of Employee's employment, nor shall Employee in any way assist any other\nperson or entity in such activity. For purposes of this Agreement, (1) the phrase\n"products or services which compete with the products or services of the Company\nmeans products or services which are the same as, similar to, reasonably\nsubstitutable for, or otherwise capable of displacing the products or services of the\nCompany; and (2) the term "prospective customer" means any person or entity the\nCompany solicited, called on or otherwise specifically identified as a target for the\nsale of its products or services.\n(iii)\nSolicit, hire or otherwise engage the services of any person who then\ncurrently is, or who at any time during Employee' employment with the Company\nwas, an employee, consultant or independent contractor of the Company, or\notherwise encourage or induce any such person to discontinue his or her\nrelationship with the Company. Employee will not engage in any business\nrelationship with any subcontractor, supplier or service provider of the Company\nwhich interferes with the Company's relationship with such subcontractor, supplier\nor service provider, or in any way causes such subcontractor, supplier or service\nprovider to reduce, alter, modify or discontinue the business it (they) do(es) with\nthe Company or any of its affiliates.\n3.\nInventions: Employee hereby expressly agrees that all research\ndiscoveries, inventions and innovations (whether or not reduced to practice or\ndocumented), improvements, developments, methods, designs, analyses,\ndrawings, reports and all similar or related information (whether patentable\nor unpatentable, and whether or not reduced to writing), Confidential\nInformation and copyrightable works, and similar and related information (in\nwhatever form or medium), which (3) either (i) relate to the Company's or its\naffiliates' actual or anticipated business, research and development or existing\nor future products or services or (ii) result from or are suggested by any work\nperformed by the Employee for the Company or its affiliates and (3) are\nconceived, developed, made or contributed to in whole or in part by the\nEmployee during his employment ("Wo Work Product") shall be and remain the\nsole and exclusive property of the Company or such affiliate.\n(ii) Work Made for Hire. The Employee acknowledges that, unless\notherwise agreed in writing by the Company, all Work Product eligible for any\nform of copyright, trademark or patent protection made or contributed to in whole\nor in part by the Employee within the scope of Employee's employment by the\ncompany during the period of Employee's employment with the Company shall be\ndeemed a "work made for hire" and shall be owned by the Company or its\naffiliates, as applicable.\n(iii)\nAssignment of Proprietary Rights. The Employee hereby assigns,\ntransfers and conveys to the Company, and shall assign, transfer and convey to the\nCompany, all right, title and interest in and to all inventions, ideas, improvements,\ndesigns, processes, patent rights, copyrights, trademarks, service marks, trade\nnames, trade secrets, trade dress, data, discoveries and other proprietary assets and\nproprietary rights in and of the ork Product (the "Proprietary Rights") for\nthe\nCompany's exclusive ownership and use, together with all rights to sue and recover\nfor past and future infringement or misappropriation thereof provided that if an\naffiliate of the Company is the owner thereof; such assignment, transfer and\nconveyance shall be made to such affiliate, which shall enjoy exclusive ownership\nand use, together with all rights to sue and recover for past and future infringement\nor misappropriation thereof.\n(iv) Further Instruments. At the request of the Company (or its affiliates, as\nthe case may be), at all times during Employee's employment with the Company\nand thereafter, the Employee will promptly and fully assist the Company (or its\naffiliates, as the case may be) in effecting the purpose of the foregoing assignment,\nincluding but not limited to the further acts of executing any and all documents\nnecessary to secure for the Company (or its affiliates, as the case may be) such\nProprietary Rights and other rights to all Work Product and all confidential\ninformation related thereto, providing cooperation and giving testimony.\n(v) Inapplicability of Section 3(d) In Certain Circumstances. The Company\nexpressly acknowledges and agrees that, and the Employee is hereby advised that,\nthis Section 3(d) does not apply to any invention for which no equipment, supplies,\nfacilities, trade secret information or Confidentia Information of the Company or\nits affiliates was used and which was developed entirely on the Employee's own\ntime, unless (3) the invention relates to the business of the Company or its affiliates,\nor to the Company's or its affiliates' actual or demonstrably anticipated research\nor development or (3) the invention results from or is suggested by any work\nperformed or observed by the Employee for the Company or any of its affiliates.\n4.\nRemedies: Employee acknowledges that the restrictions contained in\nparagraphs 2 and 3 of this Agreement are reasonable in light of Employee's\nposition with the Company and are necessary to protect the Company from\nunfair competitive harm. Employee further acknowledges that any breach of\nthis A greement will result in immediate irreparable harm to the Company and\nthat the Company shall be entitled to immediate injunctive relief upon any\nsuch breach, in addition to all other legal and equitable remedies the\nCompany may have. This greement is to be construed as separate and\nindependent from any other obligations and any claim by Employee asserted\nagainst the Company and shall not constitute a defense to the enforcement of\nthis Agreement In the event any court determines that the restrictions set\nforth herein are unreasonable or unenforceable for any reason, the court will\nenforce such restrictions to the fullest extent permitted by law.\n5.\nPosition of Employment Employee expressly acknowledges that the\nobligations contained in paragraphs 2 and 3 of this Agreement shall remain in\nfull force and effect during Employee's employment in any position with the\nCompany, with respect to any Confidential Information of the Company.\n6.\nValidity: In the event any provision of this Agreement, or portion\nthereof, is held by a court of competent jurisdiction to be unreasonable,\narbitrary, or against public policy, then such provision, or portion thereof,\nshall be enforced against the Employee to the extent the court deems to be\nreasonable or in accordance with public policy. In the event any provision of\nthis Agreement shall for any reason be wholly invalid, or unenforceable in any\nrespect, such invalidity shall not affect the validity of any remaining portion\nwhich shall remain in full force and effect as if the invalid portion was never\npart of this Agreement.\n7.\nMiscellaneous: Employee acknowledges that the Employee ha\ncarefully read this entire Agreement and fully agrees with and understands all\nof the provisions the hereof. This A greement supersedes all prior agreements\nbetween the Company and the Employee regarding the subject matter of this\nAgreement and constitutes the entire agreement between the parties with\nrespect to such subject matter. The Employee further agrees that in executing\nthis Agreement, the Employee has not relied on any written or oral\nrepresentations, promises, conditions, or understandings of the Company,\nexpress or implied, except as set forth herein. This Agreement may not be\namended or modified other than in writing signed by the parties. This\nAgreement and any disputes arising thereunder shall be governed by the laws\nof the State of Ohio without regard to any State's choice of law, rules or\nprinciples. Employee and the Company expressly agree that any legal action\narising out of or related to this Agreement will be brought exclusively in the\nstate or federal courts located in Summit County, Ohio, and each party\nexpressly consents to the jurisdiction of such courts and waives any and all\nobjections to the jurisdiction or venue thereof. This Agreement may be\nassigned to any successor-in-interest to the business of the Company without\nthe consent of Employee, but may not be assigned by Employee to any third\nparty. This Agreement is not a contract of employment for any definite period\nand Employee acknowledges that Employee's employment with the Company\nis terminable at-will.\nIN WITNESS WHEREOF, the parties have hereunto executed this\nAgreement as of the date first set forth above.\nMyers Industries, Inc.\nBy: /s/ John C. Orr\nDate: September 1, 2012\nEmployee\nSignature /s/ Greggory W. Branning\nPrint Name: Gregg Branning\nDate: September 1, 2012\n7268294 vl	EXECUTION VERSION\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION and CONFIDENTIALITY AGREEMENT (“Agreement”) is made and\nentered into this 1st day of September, 2012, by and between Myers Industries, Inc., an Ohio Corporation (the\n“Company”), and Gregg Branning (the “Employee”).\nRECITALS:\n1. The Company is a diversified international manufacturer of polymer products for the industrial,\nagricultural, automotive, commercial and consumer markets and distributor of tools, equipment and supplies\nfor tire service and under vehicle repair. The Company currently operates through four (4) business segments\nincluding Lawn & Garden, Material Handling, Distribution, and Engineered Products (collectively, the\n“Business Segments”).\n2. Employee is being employed by the Company as its Executive Vice President, Chief Financial\nOfficer and Secretary.\n3. The Company has acquired and established valuable and competitively sensitive information\nthrough its business, research, development and practices, which information is described more extensively\nherein, and is collectively referred to as the “Confidential Information.” To protect the business interests of the\nCompany and the competitive advantage derived from the Confidential Information, it is necessary that such\nConfidential Information be kept secret and confidential.\n4. The Employee, from and after the commencement of employment with the Company, will be\nengaged in activities such that the Employee will have extensive access to and become familiar with, and may\ndevelop or contribute to, some or all of the Company’s Confidential Information in all of its Business\nSegments. In addition, Employee may have extensive contact with the customers of the Company and may\ndevelop relationships with such customers on behalf of the Company. The Employee recognizes that the\nConfidential Information and the Company’s customer relationships are vital to the success of the Company\nand that extensive, irreparable harm would result were such Confidential Information to be disclosed outside\nthe Company or if Employee were to engage in activity which competes with the Company.\nNOW, THEREFORE, in view of the above and in consideration for the mutual covenants and promises\nset forth below, the parties agree as follows:\n1.Confidential Information: For purposes of this Agreement, Confidential\nInformation includes, but is not limited to, business plans and strategies,\nmarketing plans and strategies, customer lists, customer purchasing\ninformation, customer contact information, product design and development\ninformation, methods of operation, technical services, non-public financial\ninformation, business development plans and strategies, system analyses,\nquality control programs and information, computer programs, software and\nhardware configurations, information regarding the terms of the Company’s\nrelationships with suppliers, pricing information, processes and techniques,\ncreations, innovations, and any other information which the Company may\nreasonably treat or designate as confidential from time to time. The Company\nbelieves that all Confidential Information constitutes trade secret information\nunder applicable law. Employee shall, however, maintain the confidentiality of\nall Confidential Information whether or not ultimately determined to be a\ntrade secret.\n2. Confidentiality and Non-Competition:\nA. Covenants\n(a) Employee acknowledges that the Company would be irreparably injured\nand the good will of the Company would be irreparably damaged if Employee were to\nbreach the covenants set forth in this Paragraph 2. Employee further acknowledges\nthat the covenants set forth in this Paragraph 2 are reasonable in scope and duration\nand do not unreasonably restrict Employee’s association with other business entities,\neither as an employee or otherwise as set forth herein. For purposes of this Paragraph\n2, the Company will include all its Business Segments now or subsequently existing.\n(b) During Employee’s employment with the Company and any time thereafter,\nexcept as may be required by law, Employee shall not, directly or indirectly, disclose,\ndisseminate, reveal, divulge, discuss, copy or otherwise use or suffer to be used, any\nConfidential Information other than in the authorized scope of Employee’s\nemployment with the Company. Upon termination of employment, no matter what the\nreason for such termination, and at any other time upon the request of the Company,\nEmployee shall immediately return to the Company any and all Confidential\nInformation, and all other materials, property and information in tangible or\nelectronic form concerning the business and affairs of the Company and/or its\ncustomers.\n(c) Employee agrees that during Employee’s employment and for a period of\nthree (3) years following the termination of such employment, no matter what the\nreason for such termination, Employee will not directly or indirectly, whether on\nEmployee’s own behalf or on behalf of any other person or entity, do or suffer any of\nthe following\n(i) Own, manage, control, participate in the ownership, management or\ncontrol of, be employed or engaged by or otherwise affiliated or associated as a\nconsultant, independent contractor or otherwise with, any person or business entity\nthat competes with the Company in the United States or in any geographic area(s)\noutside the United States in which the Company does business (the “Restricted\nTerritory”). Without limiting the generality and scope of the foregoing, any\nbusiness entity or person providing products or services competitive with those of\nthe Company in the Restricted Territory from either inside or outside the\nRestricted Territory is deemed to be competing within the Restricted Territory. For\npurposes of this Agreement, the phrase “competes with” means providing services\nand products which are the same as, similar to, reasonably substitutable for, or\notherwise capable of displacing the services and products of the Company.\nNotwithstanding the foregoing, Employee’s passive investment ownership of not\nmore than one percent (1%) of the stock of any publicly traded corporation shall\nnot be deemed a violation of this provision.\n(ii) Solicit, provide, sell, attempt to provide or sell, or otherwise deliver or\nsupply any products or services which compete with the products or services of the\nCompany to any person or business entity which is or was a customer or\nprospective customer of the Company at any time during the last thirty-six (36)\nmonths of Employee’s employment, nor shall Employee in any way assist any other\nperson or entity in such activity. For purposes of this Agreement, (1) the phrase\n“products or services which compete with the products or services of the Company\nmeans products or services which are the same as, similar to, reasonably\nsubstitutable for, or otherwise capable of displacing the products or services of the\nCompany; and (2) the term “prospective customer” means any person or entity the\nCompany solicited, called on or otherwise specifically identified as a target for the\nsale of its products or services.\n(iii) Solicit, hire or otherwise engage the services of any person who then\ncurrently is, or who at any time during Employee’s employment with the Company\nwas, an employee, consultant or independent contractor of the Company, or\notherwise encourage or induce any such person to discontinue his or her\nrelationship with the Company. Employee will not engage in any business\nrelationship with any subcontractor, supplier or service provider of the Company\nwhich interferes with the Company’s relationship with such subcontractor, supplier\nor service provider, or in any way causes such subcontractor, supplier or service\nprovider to reduce, alter, modify or discontinue the business it (they) do(es) with\nthe Company or any of its affiliates.\n3.\nInventions: Employee hereby expressly agrees that all research\ndiscoveries, inventions and innovations (whether or not reduced to practice or\ndocumented), improvements, developments, methods, designs, analyses,\ndrawings, reports and all similar or related information (whether patentable\nor unpatentable, and whether or not reduced to writing), Confidential\nInformation and copyrightable works, and similar and related information (in\nwhatever form or medium), which (3) either (i) relate to the Company’s or its\naffiliates’ actual or anticipated business, research and development or existing\nor future products or services or (ii) result from or are suggested by any work\nperformed by the Employee for the Company or its affiliates and (3) are\nconceived, developed, made or contributed to in whole or in part by the\nEmployee during his employment (“Work Product”) shall be and remain the\nsole and exclusive property of the Company or such affiliate.\n(ii)\nWork Made for Hire. The Employee acknowledges that, unless\notherwise agreed in writing by the Company, all Work Product eligible for any\nform of copyright, trademark or patent protection made or contributed to in whole\nor in part by the Employee within the scope of Employee’s employment by the\ncompany during the period of Employee’s employment with the Company shall be\ndeemed a “work made for hire” and shall be owned by the Company or its\naffiliates, as applicable.\n(iii)\nAssignment of Proprietary Rights. The Employee hereby assigns,\ntransfers and conveys to the Company, and shall assign, transfer and convey to the\nCompany, all right, title and interest in and to all inventions, ideas, improvements,\ndesigns, processes, patent rights, copyrights, trademarks, service marks, trade\nnames, trade secrets, trade dress, data, discoveries and other proprietary assets and\nproprietary rights in and of the Work Product (the “Proprietary Rights”) for the\nCompany’s exclusive ownership and use, together with all rights to sue and recover\nfor past and future infringement or misappropriation thereof provided that if an\naffiliate of the Company is the owner thereof; such assignment, transfer and\nconveyance shall be made to such affiliate, which shall enjoy exclusive ownership\nand use, together with all rights to sue and recover for past and future infringement\nor misappropriation thereof.\n(iv) Further Instruments. At the request of the Company (or its affiliates, as\nthe case may be), at all times during Employee’s employment with the Company\nand thereafter, the Employee will promptly and fully assist the Company (or its\naffiliates, as the case may be) in effecting the purpose of the foregoing assignment,\nincluding but not limited to the further acts of executing any and all documents\nnecessary to secure for the Company (or its affiliates, as the case may be) such\nProprietary Rights and other rights to all Work Product and all confidential\ninformation related thereto, providing cooperation and giving testimony.\n(v) Inapplicability of Section 3(d) In Certain Circumstances. The Company\nexpressly acknowledges and agrees that, and the Employee is hereby advised that,\nthis Section 3(d) does not apply to any invention for which no equipment, supplies,\nfacilities, trade secret information or Confidential Information of the Company or\nits affiliates was used and which was developed entirely on the Employee’s own\ntime, unless (3) the invention relates to the business of the Company or its affiliates,\nor to the Company’s or its affiliates’ actual or demonstrably anticipated research\nor development or (3) the invention results from or is suggested by any work\nperformed or observed by the Employee for the Company or any of its affiliates.\n4. Remedies: Employee acknowledges that the restrictions contained in\nparagraphs 2 and 3 of this Agreement are reasonable in light of Employee’s\nposition with the Company and are necessary to protect the Company from\nunfair competitive harm. Employee further acknowledges that any breach of\nthis Agreement will result in immediate irreparable harm to the Company and\nthat the Company shall be entitled to immediate injunctive relief upon any\nsuch breach, in addition to all other legal and equitable remedies the\nCompany may have. This Agreement is to be construed as separate and\nindependent from any other obligations and any claim by Employee asserted\nagainst the Company and shall not constitute a defense to the enforcement of\nthis Agreement. In the event any court determines that the restrictions set\nforth herein are unreasonable or unenforceable for any reason, the court will\nenforce such restrictions to the fullest extent permitted by law.\n5. Position of Employment: Employee expressly acknowledges that the\nobligations contained in paragraphs 2 and 3 of this Agreement shall remain in\nfull force and effect during Employee’s employment in any position with the\nCompany, with respect to any Confidential Information of the Company.\n6. Validity: In the event any provision of this Agreement, or portion\nthereof, is held by a court of competent jurisdiction to be unreasonable,\narbitrary, or against public policy, then such provision, or portion thereof,\nshall be enforced against the Employee to the extent the court deems to be\nreasonable or in accordance with public policy. In the event any provision of\nthis Agreement shall for any reason be wholly invalid, or unenforceable in any\nrespect, such invalidity shall not affect the validity of any remaining portion\nwhich shall remain in full force and effect as if the invalid portion was never\npart of this Agreement.\n7.\nMiscellaneous: Employee acknowledges that the Employee has\ncarefully read this entire Agreement and fully agrees with and understands all\nof the provisions the hereof. This Agreement supersedes all prior agreements\nbetween the Company and the Employee regarding the subject matter of this\nAgreement and constitutes the entire agreement between the parties with\nrespect to such subject matter. The Employee further agrees that in executing\nthis Agreement, the Employee has not relied on any written or oral\nrepresentations, promises, conditions, or understandings of the Company,\nexpress or implied, except as set forth herein. This Agreement may not be\namended or modified other than in writing signed by the parties. This\nAgreement and any disputes arising thereunder shall be governed by the laws\nof the State of Ohio without regard to any State’s choice of law, rules or\nprinciples. Employee and the Company expressly agree that any legal action\narising out of or related to this Agreement will be brought exclusively in the\nstate or federal courts located in Summit County, Ohio, and each party\nexpressly consents to the jurisdiction of such courts and waives any and all\nobjections to the jurisdiction or venue thereof. This Agreement may be\nassigned to any successor-in-interest to the business of the Company without\nthe consent of Employee, but may not be assigned by Employee to any third\nparty. This Agreement is not a contract of employment for any definite period\nand Employee acknowledges that Employee’s employment with the Company\nis terminable at-will.\nIN WITNESS WHEREOF, the parties have hereunto executed this\nAgreement as of the date first set forth above.\nDate: _September 1, 2012__________\nMyers Industries, Inc.\nBy: _/s/ John C. Orr_______________________\nDate: _September 1, 2012___________\nEmployee\nSignature: _/s/ Greggory W. Branning________\nPrint Name: Gregg Branning\n7268294 v1
+981d2e4a955098701903f8e2e712691e.pdf	effective_date jurisdiction party term	EXHIBIT 10.1\nApogee Enterprises, Inc.\n4400 West 78th Street, Suite 520\nMinneapolis, Minnesota 55435\nFebruary 8, 2019\nRe: Confidentiality Agreement\nLadies and Gentlemen:\nThis Confidentiality Agreement (this “Agreement”), dated as of February 8, 2019, is made by and among Apogee Enterprises, Inc., a\nMinnesota corporation (the “Company”), and Engaged Capital LLC, Engaged Capital Flagship Master Fund, LP, Engaged Capital\nCo-Invest VIII, LP, Engaged Capital Flagship Fund, LP, Engaged Capital Flagship Fund, Ltd., Engaged Capital Holdings, LLC and\nGlenn W. Welling (collectively, “Engaged Capital,” “you” or “your”).\n1. Upon the terms of, and subject to the conditions in, this Agreement, you and your Representatives (as defined below), may\nreceive certain information about the Company that is confidential and proprietary, the disclosure of which could harm the Company\nand its Affiliates (as defined below).\n2. As a condition to you or any of your Representatives being furnished such information, you agree to treat, and to instruct your\nRepresentatives to treat, any information, whether written or oral, concerning the Company or any of its Affiliates that is furnished to\nyou or your Representatives (such information herein collectively referred to as the “Confidential Information”) in accordance with\nthe provisions of this Agreement, and to take or abstain from taking, and to instruct your Representatives to take or abstain from\ntaking, certain other actions as set forth herein. The term “Confidential Information” includes, without limitation, all notes, analyses,\ndata or other documents furnished to you or your Representatives or prepared by you or your Representatives to the extent such\nmaterials reflect or are based upon, in whole or in part, the Confidential Information. The term “Confidential Information” does not\ninclude information that (a) was within your or any of your Representatives’ possession on a non-confidential basis (or any\nconfidentiality restrictions have lapsed) prior to it being furnished to you by the Company or its Representatives; (b) is or becomes\navailable to you or your Representatives from a source other than the Company or its Representatives, provided that such source is\nnot known by you or your Representatives to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation to, the Company or any of its Affiliates that prohibits such disclosure; (c) is or becomes generally available to the public\nother than as a result of a disclosure by you or your Representatives in violation of this Agreement; or (d) has been or is\nindependently developed by you or your Representatives without the use of the Confidential Information or in violation of the terms\nof this Agreement. For the avoidance of doubt, the term “Confidential Information” does not include the existence and the terms and\nconditions of this Agreement.\n3. You hereby agree that you shall keep the Confidential Information confidential and shall use the Confidential Information solely\nfor the purpose of monitoring and evaluating your investment in the Company; provided, however, that you may disclose the\nConfidential Information (a) to any of your Representatives who need to know such information for the purpose of monitoring and\nevaluating your investment in the Company, or (b) as the Company may otherwise consent in writing. Any such Representatives shall\n(i) be informed by you of the confidential nature of the Confidential Information, (ii) be subject to a contractual, legal or fiduciary\nobligation to keep the Confidential Information strictly confidential, and (iii) be advised of the terms of this Agreement. You agree to\nbe responsible for any breaches of any of the provisions of this Agreement by any of your Representatives as if they were party\nhereto (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the\nCompany may have against your Representatives with respect to such breach).\n4. Notwithstanding anything to the contrary provided in this Agreement, in the event you or any of your Representatives receive a\nrequest or are required by deposition, interrogatory, request for documents, subpoena, court order, similar judicial process, civil\ninvestigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required\ndisclosure, an “External Demand”) or are otherwise required pursuant to applicable law, regulation or the rules of any national\nsecurities exchange (as determined based on advice of your external legal counsel) to disclose all or any part of the Confidential\nInformation, you agree, and you agree to instruct your Representatives, to the extent permitted by applicable law, to (a) promptly\nnotify the Company of the existence, terms and circumstances surrounding such External Demand or other requirement and (b) in the\ncase of any External Demand, cooperate with the Company, at the Company’s reasonable request and sole expense, in seeking a\nprotective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or\nother remedy is not obtained or not available or that the Company waives compliance with the provisions hereof, (i) you or your\nRepresentatives, as the case may be, may disclose only that portion of the Confidential Information which you or your\nRepresentatives are advised by your external legal counsel is legally required to be disclosed, and you or your Representatives shall\ninform the recipient of such Confidential Information of the existence of this Agreement and the confidential nature of such\nConfidential Information and exercise reasonable efforts to obtain assurance that confidential treatment will be accorded, and (ii) you\nand your Representatives shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous\ndisclosure by you or your Representatives in violation of this Agreement. For the avoidance of doubt, it is understood and agreed that\nthere shall be no “applicable law,” “regulation” or “rule” requiring you or your Representatives to disclose any Confidential\nInformation solely by virtue of the fact that, absent such disclosure, you or your Representatives would be prohibited from\npurchasing, selling or engaging in derivative or other voluntary transactions with respect to the securities of the Company or you or\nyour Representatives would be unable to file any proxy materials or tender or exchange offer materials in compliance with Section 14\nof the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or the rules promulgated thereunder.\n5. Except as required by law, regulation, regulator or legal process, until the occurrence of a Cleansing Event (as defined below)\nneither Engaged Capital nor the Company shall directly or indirectly, including through their Representatives, make or issue, or cause\nto be made or issued,\n2\nany public disclosure or announcement that comments upon the other, including the filing or furnishing of any document with the\nU.S. Securities and Exchange Commission (the “SEC”) or discussions with the press. For the avoidance of doubt, the Company\nacknowledges and agrees that you may file an amendment to your Schedule 13D in respect of the Company regarding the fact that\nthis Agreement has been entered into and attaching a copy of this Agreement as an exhibit thereto (a “Schedule 13D Amendment”).\nPrior to filing a Schedule 13D Amendment, if any, you shall provide the Company and its Representatives with a reasonable\nopportunity to review and propose comments to the Schedule 13D Amendment and consider in good faith any comments of the\nCompany and its Representatives. The Company will be responsible for the compliance of its Representatives with this Agreement.\nFor the avoidance of doubt, Engaged Capital acknowledges and agrees that the Company may file a Form 8-K regarding the fact that\nthis Agreement has been entered into and attaching a copy of this Agreement as an exhibit thereto (a “Form 8-K”). Prior to filing a\nForm 8-K, if any, the Company shall provide Engaged Capital and its Representatives with a reasonable opportunity to review and\npropose comments to the Form 8-K and consider in good faith any comments of Engaged Capital and its Representatives.\n6. Promptly upon request by the Company, you and your Representatives shall either (at your option) (a) destroy the Confidential\nInformation and any copies thereof, or (b) return to the Company all Confidential Information and any copies thereof, and, in either\ncase, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this\nAgreement; provided, however, that you and your Representatives shall be permitted to retain Confidential Information to the extent\nnecessary to comply with applicable law, professional standards or such person’s document retention policies of general application,\nor to the extent disclosed pursuant to an External Demand. Notwithstanding the destruction or return of Confidential Information, you\nand your Representatives shall continue to be bound by the obligations contained herein with respect to any Confidential Information\nretained by you or your Representatives for such period of time as you and such Representatives retain such Confidential Information\nuntil such Confidential Information is returned or destroyed or no longer constitutes Confidential Information pursuant to the terms\nhereof.\n7. Other than in connection with a Cleansing Event permitted by Paragraph 10, you agree that until 5:30 PM New York City time\non the Termination Date (as defined below), neither you nor your Representatives may, directly or indirectly, without the prior\napproval of the Company’s board of directors (the “Board”) (a) make any public announcement with respect to the Company’s\nmanagement, policies, strategies, equity securities (except for disclosures required under the Exchange Act, or disclosures in response\nto statements made by the Company identifying you and your Affiliates) or the Board, or take any action that would reasonably be\nexpected to require the Company to make such a public announcement; (b) nominate, give notice of an intent to nominate or\nrecommend for nomination a person for election at any meeting of the Company’s shareholders (a “Shareholder Meeting”) at which\nthe Company’s directors are to be elected; (c) knowingly initiate, encourage or participate in any solicitation of proxies in respect of\n(i) any election contest or removal contest with respect to the Company’s directors or (ii) any shareholder proposal for consideration\nat, or other business brought before, any Shareholder Meeting; (d) knowingly initiate, encourage or participate in any “withhold” or\nsimilar campaign with respect to any Shareholder Meeting; (e) form, join or in any way knowingly participate in any group or\nagreement of any kind with respect to any voting\n3\nsecurities of the Company in connection with any election or removal contest with respect to the Company’s directors or any\nshareholder proposal or other business brought before any Shareholder Meeting; (f) seek publicly, alone or in concert with others, to\namend any provision of the Company’s charter or bylaws; (g) demand an inspection of the Company’s books and records pursuant to\nSection 302A.461 of the Minnesota Business Corporation Act; (h) make or seek to make an offer or proposal (with or without\nconditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other\nbusiness combination involving the Company, or encourage, facilitate, initiate or support any third party in making or seeking to\nmake such an offer or proposal; (i) violate any other such restrictions you agree to in writing (including email) prior to or subsequent\nto the signing of this Agreement or (j) enter into any negotiations, agreements or understandings with any third party with respect to\nthe foregoing clauses (a) through (i) of this Paragraph 7, or knowingly advise, assist, encourage or seek to persuade any third party to\ntake any action with respect to any of the foregoing clauses (a) through (j) of this Paragraph 7. Nothing in this Paragraph 7 shall be\ndeemed to prohibit you or your Affiliates or Representatives from communicating privately with the Company’s directors, officers\nand Representatives so long as such private communications would not be reasonably determined to trigger public disclosure\nobligations for any party and would not circumvent any of your obligations under this Paragraph 7.\n8. The Company shall hold its 2019 annual meeting of shareholders (the “2019 Annual Meeting”) no earlier than 45 days after the\nTermination Date. The Company shall consider any notice from Engaged Capital pursuant to Section 1.09 of the Company’s\nAmended and Restated By-laws with respect to the 2019 Annual Meeting timely if such notice is received by the Company by 5:30\nPM New York City time on the 15th day following the Termination Date. In addition to any other access rights granted to you by the\nCompany in writing (including email) prior to or subsequent to the signing of this Agreement, prior to the Termination Date and\nsubject to applicable laws, the Company shall provide Glenn W. Welling reasonable opportunities to meet with the Chief Executive\nOfficer of the Company or the Chairman of the Board on a periodic basis, including reasonable access to certain advisors of the\nCompany; provided, however, that the Company shall not be required to provide any such opportunities that would unreasonably\ninterfere with the business or operations of the Company.\n9. This Agreement shall terminate at 5:30 PM New York City time on the date that is six months from the effective date of this\nAgreement, except that the Company may terminate this Agreement at any time by giving Engaged Capital written notice (including\nby email) (the effective date of termination, the “Termination Date”); provided, however, that you and your Representatives shall\nmaintain in accordance with the confidentiality obligations set forth herein any Confidential Information constituting trade secrets for\nsuch longer time as such information constitutes a trade secret of the Company or any of its Affiliates under applicable law; and\nprovided, further, (x) that any liability for breach of this Agreement prior to such termination and (y) the provisions of Paragraph 8\nthrough Paragraph 11 and Paragraph 13 through Paragraph 15 shall survive such termination.\n10. Engaged Capital acknowledges that it is aware (and Engaged Capital shall also advise each of its Representatives that is\nprovided with Confidential Information) of its obligations under applicable United States securities laws. No later than 8:30 AM New\nYork City time on the second business day following the Termination Date, the Company shall publicly disclose\n4\nany and all material nonpublic information delivered to Engaged Capital by means of a filing on Form 8-K or other periodic report\nrequired or permitted to be filed under applicable laws an appropriate summary description of any Confidential Information that the\nCompany determines, based on advice of the Company’s outside counsel, constitutes material nonpublic information as of such date.\nIn the event that the Company fails to comply with the foregoing obligation by 8:30 AM New York City time on the second business\nday following the Termination Date, then Engaged Capital shall thereafter be permitted to publicly disclose without liability a\nsummary that reflects any Confidential Information that it in good faith believes constitutes material nonpublic information regarding\nthe Company. The occurrence of any of the actions described in the preceding two sentences (each a “Cleansing Event”) shall\nconstitute definitive proof that Engaged Capital is free from any trading restriction imposed by or associated with this Agreement and\nnot in possession of material non-public information of the Company, and the Company and its Representatives shall not directly or\nindirectly, publicly (including in court) or privately (including via confidential communications with the SEC) take any contrary\nposition. In addition, nothing contained in this Agreement shall restrict the ability of Engaged Capital from purchasing, selling or\notherwise trading securities of the Company pursuant to any Rule 10b5-1 under the Exchange Act trading plan adopted prior to the\nexecution of this Agreement.\n11. The parties acknowledge and agree that money damages would not be a sufficient remedy for any breach (or threatened breach)\nof this Agreement and that the non-breaching party shall be entitled to equitable relief, including injunction and specific performance,\nas a remedy for any such breach (or threatened breach), without proof of damages, and the parties further agree to waive, and to\ninstruct their Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy.\nSuch remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies\navailable at law or in equity. If any action, suit or proceeding is initiated by a party to enforce the provisions hereof, the prevailing\nparty in such action, suit or proceeding shall be entitled to reimbursement of all costs and expenses, including attorneys’ fees,\nincurred by such prevailing party in connection therewith.\n12. You agree that (a) none of the Company or its Representatives shall have any liability to you or any of your Representatives\nresulting from the selection, use or content of the Confidential Information by you or your Representatives and (b) none of the\nCompany or its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of any\nConfidential Information. All Confidential Information shall remain the property of the Company and its Affiliates. Neither you nor\nany of your Representatives shall by virtue of any disclosure of and/or your or their use of any Confidential Information acquire any\nrights with respect thereto, all of which rights shall remain exclusively with the Company and its Affiliates. No failure or delay by\nany party or any of its Representatives in exercising any right, power or privilege under this Agreement shall operate as a waiver\nthereof, and no modification hereof shall be effective, unless in writing and signed by the parties hereto.\n13. All notices and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be\nin writing and shall be deemed to have been given (a) when delivered by hand, with written confirmation of receipt; (b) upon sending\nif sent by electronic mail to the electronic mail addresses below, with confirmation of receipt from the receiving party by electronic\nmail; (c) one day after being sent by a nationally recognized\n5\novernight carrier to the addresses set forth below or (d) when actually delivered if sent by any other method that results in delivery,\nwith written confirmation of receipt:\nIf to the Company:\nwith mandatory copies (which shall not\nconstitute notice) to:\nApogee Enterprises, Inc.\n4400 West 78th Street, Suite 520\nMinneapolis, MN 55435\nAttention: Patricia A. Beithon\nEmail: pbeithon@apog.com\nSidley Austin LLP\n787 Seventh Avenue, 23rd Floor\nNew York, NY 10019\nAttention: Kai H. Liekefett\nScott R. Williams\nEmail: kliekefett@sidley.com\nswilliams@sidley.com\nIf to Engaged Capital:\nwith mandatory copies (which shall not\nconstitute notice) to:\nEngaged Capital, LLC\n610 Newport Center Drive, Suite 250\nNewport Beach, CA 92660\nAttention: Glenn W. Welling\nEmail: glenn@engagedcapital.com\nOlshan Frome Wolosky LLP\n1325 Avenue of the Americas\nNew York, NY 10019\nAttention: Steve Wolosky\nRyan P. Nebel\nEmail: swolosky@olshanlaw.com\nrnebel@olshanlaw.com\n14. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its\nlegality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other\nprovision.\n15. This Agreement and all matters arising out of or relating to this Agreement or the validity thereof shall be governed by, and\nconstrued in accordance with, the laws of the State of Minnesota, without giving effect to its principles or rules regarding conflicts of\nlaws. The parties agree that the State and Federal courts in Hennepin County, Minnesota shall have exclusive jurisdiction for\npurposes of any action, suit or proceeding arising hereunder. Each party hereto hereby irrevocably submits with regard to any such\naction or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the\naforesaid courts and agrees that it will not bring any action relating to this Agreement in any court other than the aforesaid courts.\nEach party hereto hereby irrevocably waives, and agrees not to assert in any action or proceeding with respect to this Agreement, any\nclaim that it is not personally subject to the jurisdiction of the above-named courts for any reason, (b) any claim that it or its property\nis exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through\nservice of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and\n(c) to the fullest extent permitted by applicable legal requirements, any claim that (i) the suit, action or proceeding in such court is\nbrought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject\nmatter hereof, may not be enforced in or by\n6\nsuch courts. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN\nANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n16. As used in this Agreement: (a) the terms “Affiliate” and “Associate” (and any plurals thereof) shall have the meanings ascribed\nto such terms under Rule 12b-2 promulgated by the SEC under the Exchange Act, and (b) the term “Representatives” shall mean a\nperson’s Affiliates and Associates and its and their respective directors, officers, employees, partners, members, managers,\nconsultants, accountants, attorneys, legal or other advisors, agents and other representatives. Notwithstanding anything in this\nAgreement to the contrary, without the prior written consent of the Company, you shall not directly or indirectly share any\nConfidential Information with any of your Representatives other than (i) your officers, directors (including any members of your\nadvisory board) and employees, (ii) Olshan Frome Wolosky LLP, and (iii) such other advisors that the Company and you agreed\nupon in writing (including email).\n17. This Agreement constitutes the only agreement between the parties hereto with respect to the subject matter hereof and\nsupersedes all prior agreements, understandings, negotiations and discussions, whether oral or written. This Agreement may be\namended only by an agreement in writing executed by the parties hereto.\n18. This Agreement may be executed in separate counterparts (including by fax, .jpeg, .gif, .bmp and .pdf), each of which when so\nexecuted shall be an original, but all such counterparts shall together constitute one and the same instrument.\n19. Each party to this Agreement acknowledges that it has been represented by counsel of its choice throughout all negotiations that\nhave preceded the execution of this Agreement, and that it has executed this Agreement with the advice of such counsel. Each party\nand its counsel cooperated and participated in the drafting and preparation of this Agreement, and any and all drafts relating thereto\nexchanged among the parties hereto shall be deemed the work product of all of the parties and may not be construed against any party\nby reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any\nambiguities in this Agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each\nof the parties hereto, and any controversy over interpretations of this Agreement shall be decided without regards to events of drafting\nor preparation.\nVery truly yours,\nAPOGEE ENTERPRISES, INC.\nBy: /s/ Patricia A. Beithon\nName: Patricia A. Beithon\nTitle:\nGeneral Counsel and\nSecretary\n7\nACCEPTED AND AGREED TO BY:\nEngaged Capital Flagship Master Fund, LP\nBy: Engaged Capital, LLC\nGeneral Partner\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle:\nFounder and Chief\nInvestment Officer\nEngaged Capital Co-Invest VIII, LP\nBy: Engaged Capital, LLC\nGeneral Partner\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle:\nFounder and Chief\nInvestment Officer\nEngaged Capital Flagship Fund, LP\nBy: Engaged Capital, LLC\nGeneral Partner\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle:\nFounder and Chief\nInvestment Officer\nEngaged Capital Flagship Fund, Ltd.\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle:\nDirector\nEngaged Capital, LLC\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle:\nFounder and Chief\nInvestment Officer\nEngaged Capital Holdings, LLC\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle:\nSole Member\n/s/ Glenn W. Welling\nGlenn W. Welling	EXHIBIT 10.1\nApogee Enterprises, Inc.\n4400 West 78th Street, Suite 520\nMinneapolis, Minnesota 55435\nFebruary 8, 2019\nRe: Confidentiality Agreement\nLadies and Gentlemen:\nThis Confidentiality Agreement (this ”A ggement"), dated as of February 8, 2019, is made by and among Apogee Enterprises, Inc., a\nMinnesota corporation (the ” ompany”), and Engaged Capital LLC, Engaged Capital Flagship Master Fund, LP, Engaged Capital\nCo-Invest VIII, LP, Engaged Capital Flagship Fund, LP, Engaged Capital Flagship Fund, Ltd., Engaged Capital Holdings, LLC and\nGlenn W. Welling (collectively, ”Engaged Capital," ”m” or ”yo_ ’).\n1. Upon the terms of, and subject to the conditions in, this Agreement, you and your Representatives (as defined below), may\nreceive certain information about the Company that is confidential and proprietary, the disclosure of which could harm the Company\nand its Affiliates (as defined below).\n2. As a condition to you or any of your Representatives being furnished such information, you agree to treat, and to instruct your\nRepresentatives to treat, any information, whether written or oral, concerning the Company or any of its Affiliates that is furnished to\nyou or your Representatives (such information herein collectively referred to as the ”Confidential Information”) in accordance with\nthe provisions of this Agreement, and to take or abstain from taking, and to instruct your Representatives to take or abstain from\ntaking, certain other actions as set forth herein. The term ”Confidential Information” includes, without limitation, all notes, analyses,\ndata or other documents furnished to you or your Representatives or prepared by you or your Representatives to the extent such\nmaterials reflect or are based upon, in whole or in part, the Confidential Information. The term ”Confidential Information” does not\ninclude information that (a) was within your or any of your Representatives' possession on a non-confidential basis (or any\nconfidentiality restrictions have lapsed) prior to it being furnished to you by the Company or its Representatives; (b) is or becomes\navailable to you or your Representatives from a source other than the Company or its Representatives, provided that such source is\nnot known by you or your Representatives to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation to, the Company or any of its Affiliates that prohibits such disclosure; (c) is or becomes generally available to the public\nother than as a result of a disclosure by you or your Representatives in violation of this Agreement; or (d) has been or is\nindependently developed by you or your Representatives without the use of the Confidential Information or in violation of the terms\nof this Agreement. For the avoidance of doubt, the term ”Confidential Information” does not include the existence and the terms and\nconditions of this Agreement.\n \n3. Y ou hereby agree that you shall keep the Confidential Information confidential and shall use the Confidential Information solely\nfor the purpose of monitoring and evaluating your investment in the Company; provided, however, that you may disclose the\nConfidential Information (a) to any of your Representatives who need to know such information for the purpose of monitoring and\nevaluating your investment in the Company, or (b) as the Company may otherwise consent in writing. Any such Representatives shall\n(i) be informed by you of the confidential nature of the Confidential Information, (ii) be subject to a contractual, legal or fiduciary\nobligation to keep the Confidential Information strictly confidential, and (iii) be advised of the terms of this Agreement. Y ou agree to\nbe responsible for any breaches of any of the provisions of this A greement by any of your Representatives as if they were party\nhereto (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the\nCompany may have against your Representatives with respect to such breach).\n4. Notwithstanding anything to the contrary provided in this Agreement, in the event you or any of your Representatives receive a\nrequest or are required by deposition, interrogatory, request for documents, subpoena, court order, similar judicial process, civil\ninvestigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required\ndisclosure, an ”Extemal Demand”) or are otherwise required pursuant to applicable law, regulation or the rules of any national\nsecurities exchange (as determined based on advice of your external legal counsel) to disclose all or any part of the Confidential\nInformation, you agree, and you agree to instruct your Representatives, to the extent permitted by applicable law, to (a) promptly\nnotify the Company of the existence, terms and circumstances surrounding such External Demand or other requirement and (b) in the\ncase of any External Demand, cooperate with the Company, at the Company' s reasonable request and sole expense, in seeking a\nprotective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or\nother remedy is not obtained or not available or that the Company waives compliance with the provisions hereof, (i) you or your\nRepresentatives, as the case may be, may disclose only that portion of the Confidential Information which you or your\nRepresentatives are advised by your external legal counsel is legally required to be disclosed, and you or your Representatives shall\ninform the recipient of such Confidential Information of the existence of this Agreement and the confidential nature of such\nConfidential Information and exercise reasonable efforts to obtain assurance that confidential treatment will be accorded, and (ii) you\nand your Representatives shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous\ndisclosure by you or your Representatives in violation of this A greement. For the avoidance of doubt, it is understood and agreed that\nthere shall be no ”applicable law,” ”regulation” or ”rule” requiring you or your Representatives to disclose any Confidential\nInformation solely by virtue of the fact that, absent such disclosure, you or your Representatives would be prohibited from\npurchasing, selling or engaging in derivative or other voluntary transactions with respect to the securities of the Company or you or\nyour Representatives would be unable to file any proxy materials or tender or exchange offer materials in compliance with Section 14\nof the Securities Exchange Act of 1934, as amended (the ”Exchange Act”) or the rules promulgated thereunder.\n5. Except as required by law, regulation, regulator or legal process, until the occurrence of a Cleansing Event (as defined below)\nneither Engaged Capital nor the Company shall directly or indirectly, including through their Representatives, make or issue, or cause\nto be made or issued,\n \nany public disclosure or announcement that comments upon the other, including the filing or furnishing of any document with the\nUS. Securities and Exchange Commission (the ”fi”) or discussions with the press. For the avoidance of doubt, the Company\nacknowledges and agrees that you may file an amendment to your Schedule 13D in respect of the Company regarding the fact that\nthis Agreement has been entered into and attaching a copy of this Agreement as an exhibit thereto (a ”Schedule 13D Amendment”).\nPrior to filing a Schedule 13D Amendment, if any, you shall provide the Company and its Representatives with a reasonable\nopportunity to review and propose comments to the Schedule 13D Amendment and consider in good faith any comments of the\nCompany and its Representatives. The Company will be responsible for the compliance of its Representatives with this Agreement.\nFor the avoidance of doubt, Engaged Capital acknowledges and agrees that the Company may file a Form 8-K regarding the fact that\nthis Agreement has been entered into and attaching a copy of this Agreement as an exhibit thereto (a ”Form 8-K”). Prior to filing a\nForm 8-K, if any, the Company shall provide Engaged Capital and its Representatives with a reasonable opportunity to review and\npropose comments to the Form 8-K and consider in good faith any comments of Engaged Capital and its Representatives.\n6. Promptly upon request by the Company, you and your Representatives shall either (at your option) (a) destroy the Confidential\nInformation and any copies thereof, or (b) return to the Company all Confidential Information and any copies thereof, and, in either\ncase, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this\nAgreement; provided, however, that you and your Representatives shall be permitted to retain Confidential Information to the extent\nnecessary to comply with applicable law, professional standards or such person' s document retention policies of general application,\nor to the extent disclosed pursuant to an External Demand. Notwithstanding the destruction or return of Confidential Information, you\nand your Representatives shall continue to be bound by the obligations contained herein with respect to any Confidential Information\nretained by you or your Representatives for such period of time as you and such Representatives retain such Confidential Information\nuntil such Confidential Information is returned or destroyed or no longer constitutes Confidential Information pursuant to the terms\nhereof.\n7. Other than in connection with a Cleansing Event permitted by Paragraph 10, you agree that until 5:30 PM New Y ork City time\non the Termination Date (as defined below), neither you nor your Representatives may, directly or indirectly, without the prior\napproval of the Company' s board of directors (the ”Board”) (a) make any public announcement with respect to the Company' s\nmanagement, policies, strategies, equity securities (except for disclosures required under the Exchange Act, or disclosures in response\nto statements made by the Company identifying you and your Affiliates) or the Board, or take any action that would reasonably be\nexpected to require the Company to make such a public announcement; (b) nominate, give notice of an intent to nominate or\nrecommend for nomination a person for election at any meeting of the Company' s shareholders (a ” hareholder Meeting”) at which\nthe Company's directors are to be elected; (c) knowingly initiate, encourage or participate in any solicitation of proxies in respect of\n(i) any election contest or removal contest with respect to the Company's directors or (ii) any shareholder proposal for consideration\nat, or other business brought before, any Shareholder Meeting; (d) knowingly initiate, encourage or participate in any ”withhold" or\nsimilar campaign with respect to any Shareholder Meeting; (e) form, join or in any way knowingly participate in any group or\nagreement of any kind with respect to any voting\n \n \nsecurities of the Company in connection with any election or removal contest with respect to the Company' s directors or any\nshareholder proposal or other business brought before any Shareholder Meeting; (f) seek publicly, alone or in concert with others, to\namend any provision of the Company' s charter or bylaws; (g) demand an inspection of the Company' s books and records pursuant to\nSection 302A .461 of the Minnesota Business Corporation Act; (h) make or seek to make an offer or proposal (with or without\nconditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other\nbusiness combination involving the Company, or encourage, facilitate, initiate or support any third party in making or seeking to\nmake such an offer or proposal; (1) violate any other such restrictions you agree to in writing (including email) prior to or subsequent\nto the signing of this Agreement or (j) enter into any negotiations, agreements or understandings with any third party with respect to\nthe foregoing clauses (a) through (i) of this Paragraph 7, or knowingly advise, assist, encourage or seek to persuade any third party to\ntake any action with respect to any of the foregoing clauses (a) through (j) of this Paragraph 7. Nothing in this Paragraph 7 shall be\ndeemed to prohibit you or your Affiliates or Representatives from communicating privately with the Company' s directors, officers\nand Representatives so long as such private communications would not be reasonably determined to trigger public disclosure\nobligations for any party and would not circumvent any of your obligations under this Paragraph 7.\n8. The Company shall hold its 2019 annual meeting of shareholders (the ” 019 Annual Meeting") no earlier than 45 days after the\nTermination Date. The Company shall consider any notice from Engaged Capital pursuant to Section 1.09 of the Company's\nAmended and Restated By-laws with respect to the 2019 Annual Meeting timely if such notice is received by the Company by 5:30\nPM New Y ork City time on the 15th day following the Termination Date. In addition to any other access rights granted to you by the\nCompany in writing (including email) prior to or subsequent to the signing of this A greement, prior to the Termination D ate and\nsubject to applicable laws, the Company shall provide Glenn W. Welling reasonable opportunities to meet with the Chief Executive\nOfficer of the Company or the Chairman of the Board on a periodic basis, including reasonable access to certain advisors of the\nCompany; provided, however, that the Company shall not be required to provide any such opportunities that would unreasonably\ninterfere with the business or operations of the Company.\n9. This Agreement shall terminate at 5:30 PM New Y ork City time on the date that is six months from the effective date of this\nAgreement, except that the Company may terminate this Agreement at any time by giving Engaged Capital written notice (including\nby email) (the effective date of termination, the ”Termination Date”); provided, however, that you and your Representatives shall\nmaintain in accordance with the confidentiality obligations set forth herein any Confidential Information constituting trade secrets for\nsuch longer time as such information constitutes a trade secret of the Company or any of its Affiliates under applicable law; and\nprovided, further, (x) that any liability for breach of this Agreement prior to such termination and (y) the provisions of Paragraph 8\nthrough Paragraph 11 and Paragraph 13 through Paragraph 15 shall survive such termination.\n10. Engaged Capital acknowledges that it is aware (and Engaged Capital shall also advise each of its Representatives that is\nprovided with Confidential Information) of its obligations under applicable United States securities laws. No later than 8:30 AM New\nY ork City time on the second business day following the Termination D ate, the Company shall publicly disclose\n \nany and all material nonpublic information delivered to Engaged Capital by means of a filing on Form 8-K or other periodic report\nrequired or permitted to be filed under applicable laws an appropriate summary description of any Confidential Information that the\nCompany determines, based on advice of the Company' s outside counsel, constitutes material nonpublic information as of such date.\nIn the event that the Company fails to comply with the foregoing obligation by 8:30 AM New Y ork City time on the second business\nday following the Termination Date, then Engaged Capital shall thereafter be permitted to publicly disclose without liability a\nsummary that reflects any Confidential Information that it in good faith believes constitutes material nonpublic information regarding\nthe Company. The occurrence of any of the actions described in the preceding two sentences (each a ”Cleansing Event”) shall\nconstitute definitive proof that Engaged Capital is free from any trading restriction imposed by or associated with this Agreement and\nnot in possession of material non-public information of the Company, and the Company and its Representatives shall not directly or\nindirectly, publicly (including in court) or privately (including via confidential communications with the SEC) take any contrary\nposition. In addition, nothing contained in this Agreement shall restrict the ability of Engaged Capital from purchasing, selling or\notherwise trading securities of the Company pursuant to any Rule 10b5-1 under the Exchange Act trading plan adopted prior to the\nexecution of this Agreement.\n11. The parties acknowledge and agree that money damages would not be a sufficient remedy for any breach (or threatened breach)\nof this Agreement and that the non-breaching party shall be entitled to equitable relief, including injunction and specific performance,\nas a remedy for any such breach (or threatened breach), without proof of damages, and the parties further agree to waive, and to\ninstruct their Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy.\nSuch remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies\navailable at law or in equity. If any action, suit or proceeding is initiated by a party to enforce the provisions hereof, the prevailing\nparty in such action, suit or proceeding shall be entitled to reimbursement of all costs and expenses, including attorneys’ fees,\nincurred by such prevailing party in connection therewith.\n12. Y ou agree that (a) none of the Company or its Representatives shall have any liability to you or any of your Representatives\nresulting from the selection, use or content of the Confidential Information by you or your Representatives and (b) none of the\nCompany or its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of any\nConfidential Information. All Confidential Information shall remain the property of the Company and its Affiliates. Neither you nor\nany of your Representatives shall by virtue of any disclosure of and/or your or their use of any Confidential Information acquire any\nrights with respect thereto, all of which rights shall remain exclusively with the Company and its Affiliates. No failure or delay by\nany party or any of its Representatives in exercising any right, power or privilege under this Agreement shall operate as a waiver\nthereof, and no modification hereof shall be effective, unless in writing and signed by the parties hereto.\n13. All notices and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be\nin writing and shall be deemed to have been given (a) when delivered by hand, with written confirmation of receipt; (b) upon sending\nif sent by electronic mail to the electronic mail addresses below, with confirmation of receipt from the receiving party by electronic\nmail; (c) one day after being sent by a nationally recognized\n \novernight carrier to the addresses set forth below or (d) when actually delivered if sent by any other method that results in delivery,\nwith written confirmation of receipt:\nIf to the Company: with mandatory copies (which shall not\nconstitute notice) to:\nApogee Enterprises, Inc. Sidley Austin LLP\n4400 West 78th Street, Suite 520 787 Seventh Avenue, 23rd Floor\nMinneapolis, MN 55435 New Y ork, NY 10019\nAttention: Patricia A. Beithon Attention: Kai H. Liekefett\nEmail: pbeithon@ apog.com Scott R. Williams\nEmail: kliekefett@ sidley.com\nswilliams@ sidley.com\nIf to Engaged Capital: with mandatory copies (which shall not\nconstitute notice) to:\nEngaged Capital, LLC Olshan Frome Wolosky LLP\n610 Newport Center Drive, Suite 250 1325 Avenue of the Americas\nNewport Beach, CA 92660 New Y ork, NY 10019\nAttention: Glenn W. W elling Attention: Steve W olosky\nEmail: glenn@ engagedcapital.com Ryan P. Nebel\nEmail: swolosky@ olshanlaw.com\nmebel@ olshanlaw.com\n14. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its\nlegality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other\nprovision.\n15. This Agreement and all matters arising out of or relating to this Agreement or the validity thereof shall be governed by, and\nconstrued in accordance with, the laws of the State of Minnesota, without giving effect to its principles or rules regarding conflicts of\nlaws. The parties agree that the State and Federal courts in Hennepin County, Minnesota shall have exclusive jurisdiction for\npurposes of any action, suit or proceeding arising hereunder. Each party hereto hereby irrevocably submits with regard to any such\naction or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the\naforesaid courts and agrees that it will not bring any action relating to this Agreement in any court other than the aforesaid courts.\nEach party hereto hereby irrevocably waives, and agrees not to assert in any action or proceeding with respect to this A greement, any\nclaim that it is not personally subject to the jurisdiction of the above-named courts for any reason, (b) any claim that it or its property\nis exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through\nservice of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and\n(c) to the fullest extent permitted by applicable legal requirements, any claim that (i) the suit, action or proceeding in such court is\nbrought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject\nmatter hereof, may not be enforced in or by\n \nsuch courts. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN\nANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n16. As used in this A greement: (a) the terms ”A ffiliate" and ”A ssociate” (and any plurals thereof) shall have the meanings ascribed\nto such terms under Rule 12b-2 promulgated by the SEC under the Exchange Act, and (b) the term ”Representatives" shall mean a\nperson' s Affiliates and Associates and its and their respective directors, officers, employees, partners, members, managers,\nconsultants, accountants, attorneys, legal or other advisors, agents and other representatives. Notwithstanding anything in this\nAgreement to the contrary, without the prior written consent of the Company, you shall not directly or indirectly share any\nConfidential Information with any of your Representatives other than (i) your officers, directors (including any members of your\nadvisory board) and employees, (ii) Olshan Frome Wolosky LLP, and (iii) such other advisors that the Company and you agreed\nupon in writing (including email).\n17. This Agreement constitutes the only agreement between the parties hereto with respect to the subject matter hereof and\nsupersedes all prior agreements, understandings, negotiations and discussions, whether oral or written. This Agreement may be\namended only by an agreement in writing executed by the parties hereto.\n18. This Agreement may be executed in separate counterparts (including by fax, .jpeg, .gif, .bmp and .pdf), each of which when so\nexecuted shall be an original, but all such counterparts shall together constitute one and the same instrument.\n19. Each party to this Agreement acknowledges that it has been represented by counsel of its choice throughout all negotiations that\nhave preceded the execution of this Agreement, and that it has executed this Agreement with the advice of such counsel. Each party\nand its counsel cooperated and participated in the drafting and preparation of this Agreement, and any and all drafts relating thereto\nexchanged among the parties hereto shall be deemed the work product of all of the parties and may not be construed against any party\nby reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any\nambiguities in this Agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each\nof the parties hereto, and any controversy over interpretations of this Agreement shall be decided without regards to events of drafting\nor preparation.\nVery truly yours,\nAPOGEE ENTERPRISES, INC.\nBy: /s/ Patricia A. B eithon\nName: Patricia A. B eithon\nG eneral C ounsel and\nTitle: Secretary\n \nACCEPTED AND AGREED TO BY:\nEngaged Capital Flagship Master Fund, LP\nBy: Engaged Capital, LLC\nG eneral Partner\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nFounder and Chief\nTitle: Investment Officer\nEngaged Capital Co-Invest VIII, LP\nBy: Engaged Capital, LLC\nG eneral Partner\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nFounder and Chief\nTitle: Investment Officer\nEngaged Capital Flagship Fund, LP\nBy: Engaged Capital, LLC\nG eneral Partner\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nFounder and Chief\nTitle: Investment Officer\nEngaged Capital Flagship Fund, Ltd.\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle: Director\n \nEngaged Capital, LLC\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nFounder and Chief\nTitle: Investment Officer\nEngaged Capital Holdings, LLC\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle: Sole Member\n/s/ Glenn W. Welling\nGlenn W. Welling	EXHIBIT 10.1\npogee Enterprises, Inc.\n4400 West 78th Street, Suite 520\nMinneapolis, Minnesota 55435\nFebruary 8, 2019\nRe: Confidentiality Agreement\nLadies and Gentlemen:\nThis Confidentiality Agreement (this greement"), dated as of February 8, 2019, is made by and among pogee Enterprises, Inc., a\nMinnesota corporation (the "Company"), and Engaged Capital LLC, Engaged Capital Flagship Master Fund, LP, Engaged Capital\nCo-Invest VIII, LP, Engaged Capital Flagship Fund, LP, Engaged Capital Flagship Fund, Ltd., Engaged Capital Holdings, LLC and\nGlenn W. Welling (collectively, "Engaged Capital," "you" or "your").\n1. Upon the terms of, and subject to the conditions in, this A greement, you and your Representatives (as defined below) may\nreceive certain information about the Company that is confidential and proprietary, the disclosure of which could harm the Company\nand its Affiliates (as defined below).\n2. As a condition to you or any of your Representatives being furnished such information, you agree to treat, and to instruct your\nRepresentatives to treat, any information, whether written or oral, concerning the Company or any of its Affiliates that is furnished to\nyou or your Representatives (such information herein collectively referred to as the "Confidential Information") in accordance with\nthe provisions of this greement, and to take or abstain from taking, and to instruct your Representatives to take or abstain from\ntaking, certain other actions as set forth herein. The term "Confidential Information" includes, without limitation, all notes, analyses,\ndata or other documents furnished to you or your Representatives or prepared by you or your Representatives to the extent such\nmaterials reflect or are based upon, in whole or in part, the Confidential Information. The term "Confidential Information" does not\ninclude information that (a) was within your or any of your Representatives' possession on a non-confidential basis (or any\nconfidentiality restrictions have lapsed) prior to it being furnished to you by the Company or its Representatives; (b) is or becomes\navailable to you or your Representatives from a source other than the Company or its Representatives, provided that such source is\nnot known by you or your Representatives to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation to, the Company or any of its ffiliates that prohibits such disclosure; (c) is or becomes generally available to the public\nother than as a result of a disclosure by you or your Representatives in violation of this Agreement; or (d) has been or is\nindependently developed by you or your Representatives without the use of the Confidential Information or in violation of the terms\nof this A greement. For the avoidance of doubt, the term "Confidential Information" does not include the existence and the terms and\nconditions of this greement.\n3.\nou hereby agree that you shall keep the Confidential Information confidential and shall use the Confidential Information solely\nfor the purpose of monitoring and evaluating your investment in the Company; provided, however, that you may disclose the\nConfidential Information (a) to any of your Representatives who need to know such information for the purpose of monitoring and\nevaluating your investment in the Company, or (b) as the Company may otherwise consent in writing. Any such Representatives shall\n(i) be informed by you of the confidential nature of the Confidential Information, (ii) be subject to a contractual, legal or fiduciary\nobligation to keep the Confidential Information strictly confidential, and (iii) be advised of the terms of this A greement. Y ou agree to\nbe responsible for any breaches of any of the provisions of this A greement by any of your Representatives as if they were party\nhereto (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the\nCompany may have against your Representatives with respect to such breach).\n4.\nNotwithstanding anything to the contrary provided in this greement, in the event you or any of your Representatives receive\na\nrequest or are required by deposition, interrogatory, request for documents, subpoena court order, similar judicial process, civil\ninvestigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required\ndisclosure, an "External Demand") or are otherwise required pursuant to applicable law, regulation or the rules of any national\nsecurities exchange (as determined based on advice of your external legal counsel) to disclose all or any part of the Confidential\nInformation, you agree, and you agree to instruct your Representatives, to the extent permitted by applicable law, to (a) promptly\nnotify the Company of the existence, terms and circumstances surrounding such External Demand or other requirement and (b) in the\ncase of any External Demand, cooperate with the Company, at the Company's reasonable request and sole expense, in seeking a\nprotective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or\nother remedy is not obtained or not available or that the Company waives compliance with the provisions hereof, (i) you or your\nRepresentatives, as the case may be, may disclose only that portion of the Confidential Information which you or your\nRepresentatives are advised by your external legal counsel is legally required to be disclosed, and you or your Representatives shall\ninform the recipient of such Confidential Information of the existence of this A greement and the confidential nature of such\nConfidential Information and exercise reasonable efforts to obtain assurance that confidential treatment will be accorded, and (ii) you\nand your Representatives shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous\ndisclosure by you or your Representatives in violation of this A greement. For the avoidance of doubt, it is understood and agreed that\nthere shall be no "applicable law," "regulation" or "rule" requiring you or your Representatives to disclose any Confidentia\nInformation solely by virtue of the fact that, absent such disclosure, you or your Representatives would be prohibited from\npurchasing, selling or engaging in derivative or other voluntary transactions with respect to the securities of the Company or you or\nyour Representatives would be unable to file any proxy materials or tender or exchange offer materials in compliance with Section 14\nof the Securities Exchange A ct of 1934, as amended (the "Exchange Act") or the rules promulgated thereunder.\n5. Except as required by law, regulation, regulator or legal process, until the occurrence of a Cleansing Event (as defined below)\nneither Engaged Capital nor the Company shall directly or indirectly, including through their Representatives, make or issue, or cause\nto be made or issued,\n2\nany public disclosure or announcement that comments upon the other, including the filing or furnishing of any document with the\nU.S. Securities and Exchange Commission (the "SEC") or discussions with the press. For the avoidance of doubt, the Company\nacknowledges and agrees that you may file an amendment to your Schedule 13D in respect of the Company regarding the fact that\nthis A greement has been entered into and attaching a copy of this greement as an exhibit thereto (a "Schedule 13D A mendment").\nPrior to filing a Schedule 13D mendment, if any, you shall provide the Company and its Representatives with a reasonable\nopportunity to review and propose comments to the Schedule 13D Amendment and consider in good faith any comments of the\nCompany and its Representatives. The Company will be responsible for the compliance of its Representatives with this Agreement.\nFor the avoidance of doubt, Engaged Capital acknowledges and agrees that the Company may file a Form 8-K regarding the fact that\nthis A greement has been entered into and attaching a copy of this A greement as an exhibit thereto (a "Form Prior to filing\na\nForm 8-K, if any, the Company shall provide Engaged Capital and its Representatives with a reasonable opportunity to review and\npropose comments to the Form 8-K and consider in good faith any comments of Engaged Capital and its Representatives.\n6. Promptly upon request by the Company, you and your Representatives shall either (at your option) (a) destroy the Confidential\nInformation and any copies thereof, or (b) return to the Company all Confidential Information and any copies thereof, and, in either\ncase, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this\nA greement; provided, however, that you and your Representatives shall be permitted to retain Confidential Information to the extent\nnecessary to comply with applicable law, professional standards or such person's document retention policies of general application,\nor to the extent disclosed pursuant to an External Demand. Notwithstanding the destruction or return of Confidential Information, you\nand\nyour Representatives shall continue to be bound by the obligations contained herein with respect to any Confidential Information\nretained by you or your Representatives for such period of time as you and such Representatives retain such Confidential Information\nuntil such Confidential Information is retumed or destroyed or no longer constitutes Confidential Information pursuant to the terms\nhereof.\n7.\nOther than in connection with a Cleansing Event permitted by Paragraph 10, you agree that until 5:30 PM New Y ork City time\non the Termination Date (as defined below), neither you nor your Representatives may, directly or indirectly, without the prior\napproval of the Company's board of directors (the "Board") (a) make any public announcement with respect to the Company's\nmanagement, policies, strategies, equity securities (except for disclosures required under the Exchange ct, or disclosures in response\nto statements made by the Company identifying you and your ffiliates) or the Board, or take any action that would reasonably be\nexpected to require the Company to make such a public announcement; (b) nominate, give notice of an intent to nominate or\nrecommend for nomination a person for election at any meeting of the Company's shareholders (a "Shareholder Meeting") at which\nthe Company's directors are to be elected; (c) knowingly initiate, encourage or participate in any solicitation of proxies in respect of\n(i) any election contest or removal contest with respect to the Company's directors or (ii) any shareholder proposal for consideration\nat,\nor\nother\nbusiness\nbrought\nbefore,\nany\nShareholder\nMeeting;\n(d)\nknowingly\ninitiate,\nencourage\nor\nparticipate\nin\nany\n"withhold"\nor\nsimilar campaign with respect to any Shareholder Meeting; (e) form join or in any way knowingly participate in any group or\nagreement of any kind with respect to any voting\n3\nsecurities of the Company in connection with any election or removal contest with respect to the Company's directors or any\nshareholder proposal or other business brought before any Shareholder Meeting; (f) seek publicly, alone or in concert with others, to\namend any provision of the Company's charter or bylaws; (g) demand an inspection of the Company's books and records pursuant to\nSection 302A.461 of the Minnesota Business Corporation Act; (h) make or seek to make an offer or proposal (with or without\nconditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other\nbusiness combination involving the Company, or encourage, facilitate, initiate or support any third party in making or seeking to\nmake such an offer or proposal; (i) violate any other such restrictions you agree to in writing (including email) prior to or subsequent\nto the signing of this A greement or (j) enter into any negotiations, agreements or understandings with any third party with respect to\nthe foregoing clauses (a) through (i) of this Paragraph 7, or knowingly advise, assist, encourage or seek to persuade any third party to\ntake any action with respect to any of the foregoing clauses (a) through (j) of this Paragraph 7. Nothing in this Paragraph 7 shall be\ndeemed to prohibit you or your A ffiliates or Representatives from communicating privately with the Company's directors, officers\nand Representatives so long as such private communications would not be reasonably determined to trigger public disclosure\nobligations for any party and would not circumvent any of your obligations under this Paragraph 7.\n8. The Company shall hold its 2019 annual meeting of shareholders (the "2019 nnual Meeting") no earlier than 45 days after the\nTermination Date. The Company shall consider any notice from Engaged Capital pursuant to Section 1.09 of the Company's\nAmended and Restated By-laws with respect to the 2019 A nnual Meeting timely if such notice is received by the Company by 5:30\nPM New Y ork City time on the 15th day following the Termination Date. In addition to any other access rights granted to you by the\nCompany in writing (including email) prior to or subsequent to the signing of this A greement, prior to the Termination Date and\nsubject to applicable laws, the Company shall provide Glenn W. Welling reasonable opportunities to meet with the Chief Executive\nOfficer of the Company or the Chairman of the Board on a periodic basis, including reasonable access to certain advisors of the\nCompany; provided, however, that the Company shall not be required to provide any such opportunities that would unreasonably\ninterfere with the business or operations of the Company.\n9. This A greement shall terminate at 5:30 PM New Y ork City time on the date that is six months from the effective date of this\nA greement except that the Company may terminate this A greement at any time by giving Engaged Capital written notice (including\nby email) (the effective date of termination, the "Termination Date"); provided, however, that you and your Representatives shall\nmaintain in accordance with the confidentiality obligations set forth herein any Confidential Information constituting trade secrets for\nsuch longer time as such information constitutes a trade secret of the Company or any of its A ffiliates under applicable law; and\nprovided, further, (x) that any liability for breach of this A greement prior to such termination and (y) the provisions of Paragraph\n8\nthrough Paragraph 11 and Paragraph 13 through Paragraph 15 shall survive such termination.\n10. Engaged Capital acknowledges that it is aware (and Engaged Capital shall also advise each of its Representatives that is\nprovided with Confidential Information) of its obligations under applicable United States securities laws. No later than 8:30 AM New\nork City time on the second business day following the Termination ate, the Company shall publicly disclose\n4\nany and all material nonpublic information delivered to Engaged Capital by means of a filing on Form 8-K or other periodic report\nrequired or permitted to be filed under applicable laws an appropriate summary description of any Confidential Information that the\nCompany determines, based on advice of the Company's outside counsel, constitutes material nonpublic information as of such date.\nIn the event that the Company fails to comply with the foregoing obligation by 8:30 New Y ork City time on the second business\nday following the Termination Date, then Engaged Capital shall thereafter be permitted to publicly disclose without liability a\nsummary that reflects any Confidential Information that it in good faith believes constitutes material nonpublic information regarding\nthe Company. The occurrence of any of the actions described in the preceding two sentences (each a "Cleansing Event") shall\nconstitute definitive proof that Engaged Capital is free from any trading restriction imposed by or associated with this A greement and\nnot in possession of material non-public information of the Company, and the Company and its Representatives shall not directly or\nindirectly, publicly (including in court) or privately (including via confidential communications with the SEC) take any contrary\nposition. In addition, nothing contained in this Agreement shall restrict the ability of Engaged Capital from purchasing, selling or\notherwise trading securities of the Company pursuant to any Rule 10b5-1 under the Exchange A ct trading plan adopted prior to the\nexecution of this A greement.\n11. The parties acknowledge and agree that money damages would not be a sufficient remedy for any breach (or threatened breach)\nof this A greement and that the non-breaching party shall be entitled to equitable relief, including injunction and specific performance,\nas a remedy for any such breach (or threatened breach), without proof of damages, and the parties further agree to waive, and to\ninstruct their Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy.\nSuch remedies shall not be the exclusive remedies for a breach of this A greement, but will be in addition to all other remedies\navailable at law or in equity. If any action, suit or proceeding is initiated by a party to enforce the provisions hereof, the prevailing\nparty in such action, suit or proceeding shall be entitled to reimbursement of all costs and expenses, including attorneys' fees,\nincurred by such prevailing party in connection therewith.\n12. ou agree that (a) none of the Company or its Representatives shall have any liability to you or any of your Representatives\nresulting from the selection, use or content of the Confidential Information by you or your Representatives and (b) none of the\nCompany or its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of any\nConfidential Information All Confidential Information shall remain the property of the Company and its Affiliates. Neither you nor\nany of your Representatives shall by virtue of any disclosure of and/or your or their use of any Confidential Information acquire any\nrights with respect thereto, all of which rights shall remain exclusively with the Company and its A ffiliates. No failure or delay by\nany party or any of its Representatives in exercising any right, power or privilege under this A greement shall operate as a waiver\nthereof, and no modification hereof shall be effective, unless in writing and signed by the parties hereto.\n13. All notices and other communications to be given or delivered under or by reason of the provisions of this A greement shall be\nin writing and shall be deemed to have been given (a) when delivered by hand, with written confirmation of receipt; (b) upon sending\nif sent by electronic mail to the electronic mail addresses below, with confirmation of receipt from the receiving party by electronic\nmail; (c) one day after being sent by a nationally recognized\n5\novernight carrier to the addresses set forth below or (d) when actually delivered if sent by any other method that results in delivery,\nwith written confirmation of receipt:\nIf to the Company:\nwith mandatory copies (which shall not\nconstitute notice) to:\nApogee Enterprises, Inc.\nSidley Austin LLP\n4400 West 78th Street, Suite 520\n787 Seventh A venue, 23rd Floor\nMinneapolis, MN 55435\nNew Y ork, NY 10019\nA ttention: Patricia A. Beithon\nA ttention: Kai H. Liekefett\nEmail: pbeithon@apog.com\nScott R. Williams\nEmail: kliekefett@sidley.com\nswilliams@ sidley.com\nIf to Engaged Capital:\nwith mandatory copies (which shall not\nconstitute notice) to:\nEngaged Capital, LLC\nOlshan Frome Wolosky LLP\n610 Newport Center Drive, Suite 250\n1325 venue of the Americas\nNewport Beach, CA 92660\nNew Y ork, NY 10019\nA ttention: Glenn W Welling\nA ttention: Steve Wolosky\nEmail: glenn@engagedcapital.com\nRyan P. Nebel\nEmail: swolosky@olshanlaw.com\nmebel@olshanlaw.com\n14. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its\nlegality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other\nprovision.\n15. This A greement and all matters arising out of or relating to this A greement or the validity thereof shall be governed by, and\nconstrued in accordance with, the laws of the State of Minnesota, without giving effect to its principles or rules regarding conflicts of\nlaws. The parties agree that the State and Federal courts in Hennepin County, Minnesota shall have exclusive jurisdiction for\npurposes of any action, suit or proceeding arising hereunder. Each party hereto hereby irrevocably submits with regard to any such\naction or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the\naforesaid courts and agrees that it will not bring any action relating to this greement in any court other than the aforesaid courts.\nEach party hereto hereby irrevocably waives, and agrees not to assert in any action or proceeding with respect to this A greement, any\nclaim that it is not personally subject to the jurisdiction of the above-named courts for any reason, (b) any claim that it or its property\nis exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through\nservice of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and\n(c) to the fullest extent permitted by applicable legal requirements, any claim that (i) the suit action or proceeding in such court is\nbrought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this A greement, or the subject\nmatter hereof, may not be enforced in or by\n6\nsuch courts. EA CH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN\nANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n16.\nAs used in this A greement: (a) the terms Affiliate" and Associate" (and any plurals thereof) shall have the meanings ascribed\nto such terms under Rule 12b-2 promulgated by the SEC under the Exchange Act, and (b) the term "Representatives" shall mean a\nperson's ffiliates and A ssociates and its and their respective directors, officers, employees, partners, members, managers,\nconsultants, accountants, attorneys, legal or other advisors, agents and other representatives. Notwithstanding anything in this\nA greement to the contrary, without the prior written consent of the Company, you shall not directly or indirectly share any\nConfidential Information with any of your Representatives other than (i) your officers, directors (including any members of your\nadvisory board) and employees, (ii) Olshan Frome Wolosky LLP, and (iii) such other advisors that the Company and you agreed\nupon in writing (including email).\n17. This A greement constitutes the only agreement between the parties hereto with respect to the subject matter hereof and\nsupersedes all prior agreements, understandings, negotiations and discussions, whether oral or written. This A greement may be\namended only by an agreement in writing executed by the parties hereto.\n18. This A greement may be executed in separate counterparts (including by fax, jpeg, .gif, .bmp and .pdf), each of which when so\nexecuted shall be an original, but all such counterparts shall together constitute one and the same instrument.\n19. Each party to this A greement acknowledges that it has been represented by counsel of its choice throughout all negotiations that\nhave preceded the execution of this A greement, and that it has executed this A greement with the advice of such counsel. Each party\nand its counsel cooperated and participated in the drafting and preparation of this A greement, and any and all drafts relating thereto\nexchanged among the parties hereto shall be deemed the work product of all of the parties and may not be construed against any party\nby reason of its drafting or preparation. A ccordingly, any rule of law or any legal decision that would require interpretation of any\nambiguities in this A greement against any party that drafted or prepared it is of no application and is hereby expressly waived by each\nof the parties hereto, and any controversy over interpretations of this A greement shall be decided without regards to events of drafting\nor preparation.\nVery truly yours,\nAPOGEE ENTERPRISES, INC.\nBy: /s/ Patricia A. Beithon\nName: Patricia A. Beithon\nGeneral Counsel and\nTitle:\nSecretary\n7\nACCEPTED AND AGREED TO BY\nEngaged Capital Flagship Master Fund, LP\nBy: Engaged Capital, LLC\nGeneral Partner\nBy:\n/s/ Glenn W. Welling\nName:\nGlenn W. Welling\nFounder and Chief\nTitle:\nInvestment Officer\nEngaged Capital Co-Invest VIII, LP\nBy: Engaged Capital, LLC\nGeneral Partner\nBy:\n/s/ Glenn W. Welling\nName:\nGlenn W. Welling\nFounder and Chief\nTitle:\nInvestment Officer\nEngaged Capital Flagship Fund, LP\nBy: Engaged Capital, LLC\nGeneral Partner\nBy:\n/s/ Glenn W. Welling\nName:\nGlenn W. Welling\nFounder and Chief\nTitle: Investment Officer\nEngaged Capital Flagship Fund, Ltd.\nBy:\n/s/ Glenn W. Welling\nName:\nGlenn W. Welling\nTitle:\nDirector\nEngaged Capital, LLC\nBy:\n/s/ Glenn W. Welling\nName:\nGlenn W. Welling\nFounder and Chief\nTitle:\nInvestment Officer\nEngaged Capital Holdings, LLC\nBy:\n/s/ Glenn W. Welling\nName:\nGlenn W. Welling\nTitle:\nSole Member\n/s/ Glenn W. Welling\nGlenn W. Welling	EXHIBIT 10.1\nApogee Enterprises, Inc.\n4400 West 78th Street, Suite 520\nMinneapolis, Minnesota 55435\nFebruary 8, 2019\nRe: Confidentiality Agreement\nLadies and Gentlemen:\nThis Confidentiality Agreement (this “Agreement”), dated as of February 8, 2019, is made by and among Apogee Enterprises, Inc., a\nMinnesota corporation (the “Company”), and Engaged Capital LLC, Engaged Capital Flagship Master Fund, LP, Engaged Capital\nCo-Invest VIII, LP, Engaged Capital Flagship Fund, LP, Engaged Capital Flagship Fund, Ltd., Engaged Capital Holdings, LLC and\nGlenn W. Welling (collectively, “Engaged Capital,” “you” or “your”).\n1. Upon the terms of, and subject to the conditions in, this Agreement, you and your Representatives (as defined below), may\nreceive certain information about the Company that is confidential and proprietary, the disclosure of which could harm the Company\nand its Affiliates (as defined below).\n2. As a condition to you or any of your Representatives being furnished such information, you agree to treat, and to instruct your\nRepresentatives to treat, any information, whether written or oral, concerning the Company or any of its Affiliates that is furnished to\nyou or your Representatives (such information herein collectively referred to as the “Confidential Information”) in accordance with\nthe provisions of this Agreement, and to take or abstain from taking, and to instruct your Representatives to take or abstain from\ntaking, certain other actions as set forth herein. The term “Confidential Information” includes, without limitation, all notes, analyses,\ndata or other documents furnished to you or your Representatives or prepared by you or your Representatives to the extent such\nmaterials reflect or are based upon, in whole or in part, the Confidential Information. The term “Confidential Information” does not\ninclude information that (a) was within your or any of your Representatives’ possession on a non-confidential basis (or any\nconfidentiality restrictions have lapsed) prior to it being furnished to you by the Company or its Representatives; (b) is or becomes\navailable to you or your Representatives from a source other than the Company or its Representatives, provided that such source is\nnot known by you or your Representatives to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation to, the Company or any of its Affiliates that prohibits such disclosure; (c) is or becomes generally available to the public\nother than as a result of a disclosure by you or your Representatives in violation of this Agreement; or (d) has been or is\nindependently developed by you or your Representatives without the use of the Confidential Information or in violation of the terms\nof this Agreement. For the avoidance of doubt, the term “Confidential Information” does not include the existence and the terms and\nconditions of this Agreement.\n3. You hereby agree that you shall keep the Confidential Information confidential and shall use the Confidential Information solely\nfor the purpose of monitoring and evaluating your investment in the Company; provided, however, that you may disclose the\nConfidential Information (a) to any of your Representatives who need to know such information for the purpose of monitoring and\nevaluating your investment in the Company, or (b) as the Company may otherwise consent in writing. Any such Representatives shall\n(i) be informed by you of the confidential nature of the Confidential Information, (ii) be subject to a contractual, legal or fiduciary\nobligation to keep the Confidential Information strictly confidential, and (iii) be advised of the terms of this Agreement. You agree to\nbe responsible for any breaches of any of the provisions of this Agreement by any of your Representatives as if they were party\nhereto (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy the\nCompany may have against your Representatives with respect to such breach).\n4. Notwithstanding anything to the contrary provided in this Agreement, in the event you or any of your Representatives receive a\nrequest or are required by deposition, interrogatory, request for documents, subpoena, court order, similar judicial process, civil\ninvestigative demand or similar process or pursuant to a formal request from a regulatory examiner (any such requested or required\ndisclosure, an “External Demand”) or are otherwise required pursuant to applicable law, regulation or the rules of any national\nsecurities exchange (as determined based on advice of your external legal counsel) to disclose all or any part of the Confidential\nInformation, you agree, and you agree to instruct your Representatives, to the extent permitted by applicable law, to (a) promptly\nnotify the Company of the existence, terms and circumstances surrounding such External Demand or other requirement and (b) in the\ncase of any External Demand, cooperate with the Company, at the Company’s reasonable request and sole expense, in seeking a\nprotective order or other appropriate remedy to the extent available under the circumstances. In the event that such protective order or\nother remedy is not obtained or not available or that the Company waives compliance with the provisions hereof, (i) you or your\nRepresentatives, as the case may be, may disclose only that portion of the Confidential Information which you or your\nRepresentatives are advised by your external legal counsel is legally required to be disclosed, and you or your Representatives shall\ninform the recipient of such Confidential Information of the existence of this Agreement and the confidential nature of such\nConfidential Information and exercise reasonable efforts to obtain assurance that confidential treatment will be accorded, and (ii) you\nand your Representatives shall not be liable for such disclosure, unless such disclosure was caused by or resulted from a previous\ndisclosure by you or your Representatives in violation of this Agreement. For the avoidance of doubt, it is understood and agreed that\nthere shall be no “applicable law,” “regulation” or “rule” requiring you or your Representatives to disclose any Confidential\nInformation solely by virtue of the fact that, absent such disclosure, you or your Representatives would be prohibited from\npurchasing, selling or engaging in derivative or other voluntary transactions with respect to the securities of the Company or you or\nyour Representatives would be unable to file any proxy materials or tender or exchange offer materials in compliance with Section 14\nof the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or the rules promulgated thereunder.\n5. Except as required by law, regulation, regulator or legal process, until the occurrence of a Cleansing Event (as defined below)\nneither Engaged Capital nor the Company shall directly or indirectly, including through their Representatives, make or issue, or cause\nto be made or issued,\n2\nany public disclosure or announcement that comments upon the other, including the filing or furnishing of any document with the\nU.S. Securities and Exchange Commission (the “SEC”) or discussions with the press. For the avoidance of doubt, the Company\nacknowledges and agrees that you may file an amendment to your Schedule 13D in respect of the Company regarding the fact that\nthis Agreement has been entered into and attaching a copy of this Agreement as an exhibit thereto (a “Schedule 13D Amendment”).\nPrior to filing a Schedule 13D Amendment, if any, you shall provide the Company and its Representatives with a reasonable\nopportunity to review and propose comments to the Schedule 13D Amendment and consider in good faith any comments of the\nCompany and its Representatives. The Company will be responsible for the compliance of its Representatives with this Agreement.\nFor the avoidance of doubt, Engaged Capital acknowledges and agrees that the Company may file a Form 8-K regarding the fact that\nthis Agreement has been entered into and attaching a copy of this Agreement as an exhibit thereto (a “Form 8-K”). Prior to filing a\nForm 8-K, if any, the Company shall provide Engaged Capital and its Representatives with a reasonable opportunity to review and\npropose comments to the Form 8-K and consider in good faith any comments of Engaged Capital and its Representatives.\n6. Promptly upon request by the Company, you and your Representatives shall either (at your option) (a) destroy the Confidential\nInformation and any copies thereof, or (b) return to the Company all Confidential Information and any copies thereof, and, in either\ncase, confirm in writing to the Company that all such material has been destroyed or returned, as applicable, in compliance with this\nAgreement; provided, however, that you and your Representatives shall be permitted to retain Confidential Information to the extent\nnecessary to comply with applicable law, professional standards or such person’s document retention policies of general application,\nor to the extent disclosed pursuant to an External Demand. Notwithstanding the destruction or return of Confidential Information, you\nand your Representatives shall continue to be bound by the obligations contained herein with respect to any Confidential Information\nretained by you or your Representatives for such period of time as you and such Representatives retain such Confidential Information\nuntil such Confidential Information is returned or destroyed or no longer constitutes Confidential Information pursuant to the terms\nhereof.\n7. Other than in connection with a Cleansing Event permitted by Paragraph 10, you agree that until 5:30 PM New York City time\non the Termination Date (as defined below), neither you nor your Representatives may, directly or indirectly, without the prior\napproval of the Company’s board of directors (the “Board”) (a) make any public announcement with respect to the Company’s\nmanagement, policies, strategies, equity securities (except for disclosures required under the Exchange Act, or disclosures in response\nto statements made by the Company identifying you and your Affiliates) or the Board, or take any action that would reasonably be\nexpected to require the Company to make such a public announcement; (b) nominate, give notice of an intent to nominate or\nrecommend for nomination a person for election at any meeting of the Company’s shareholders (a “Shareholder Meeting”) at which\nthe Company’s directors are to be elected; (c) knowingly initiate, encourage or participate in any solicitation of proxies in respect of\n(i) any election contest or removal contest with respect to the Company’s directors or (ii) any shareholder proposal for consideration\nat, or other business brought before, any Shareholder Meeting; (d) knowingly initiate, encourage or participate in any “withhold” or\nsimilar campaign with respect to any Shareholder Meeting; (e) form, join or in any way knowingly participate in any group or\nagreement of any kind with respect to any voting\n3\nsecurities of the Company in connection with any election or removal contest with respect to the Company’s directors or any\nshareholder proposal or other business brought before any Shareholder Meeting; (f) seek publicly, alone or in concert with others, to\namend any provision of the Company’s charter or bylaws; (g) demand an inspection of the Company’s books and records pursuant to\nSection 302A.461 of the Minnesota Business Corporation Act; (h) make or seek to make an offer or proposal (with or without\nconditions) with respect to any merger, tender (or exchange) offer, acquisition, recapitalization, restructuring, disposition or other\nbusiness combination involving the Company, or encourage, facilitate, initiate or support any third party in making or seeking to\nmake such an offer or proposal; (i) violate any other such restrictions you agree to in writing (including email) prior to or subsequent\nto the signing of this Agreement or (j) enter into any negotiations, agreements or understandings with any third party with respect to\nthe foregoing clauses (a) through (i) of this Paragraph 7, or knowingly advise, assist, encourage or seek to persuade any third party to\ntake any action with respect to any of the foregoing clauses (a) through (j) of this Paragraph 7. Nothing in this Paragraph 7 shall be\ndeemed to prohibit you or your Affiliates or Representatives from communicating privately with the Company’s directors, officers\nand Representatives so long as such private communications would not be reasonably determined to trigger public disclosure\nobligations for any party and would not circumvent any of your obligations under this Paragraph 7.\n8. The Company shall hold its 2019 annual meeting of shareholders (the “2019 Annual Meeting”) no earlier than 45 days after the\nTermination Date. The Company shall consider any notice from Engaged Capital pursuant to Section 1.09 of the Company’s\nAmended and Restated By-laws with respect to the 2019 Annual Meeting timely if such notice is received by the Company by 5:30\nPM New York City time on the 15th day following the Termination Date. In addition to any other access rights granted to you by the\nCompany in writing (including email) prior to or subsequent to the signing of this Agreement, prior to the Termination Date and\nsubject to applicable laws, the Company shall provide Glenn W. Welling reasonable opportunities to meet with the Chief Executive\nOfficer of the Company or the Chairman of the Board on a periodic basis, including reasonable access to certain advisors of the\nCompany; provided, however, that the Company shall not be required to provide any such opportunities that would unreasonably\ninterfere with the business or operations of the Company.\n9. This Agreement shall terminate at 5:30 PM New York City time on the date that is six months from the effective date of this\nAgreement, except that the Company may terminate this Agreement at any time by giving Engaged Capital written notice (including\nby email) (the effective date of termination, the “Termination Date”); provided, however, that you and your Representatives shall\nmaintain in accordance with the confidentiality obligations set forth herein any Confidential Information constituting trade secrets for\nsuch longer time as such information constitutes a trade secret of the Company or any of its Affiliates under applicable law; and\nprovided, further, (x) that any liability for breach of this Agreement prior to such termination and (y) the provisions of Paragraph 8\nthrough Paragraph 11 and Paragraph 13 through Paragraph 15 shall survive such termination.\n10. Engaged Capital acknowledges that it is aware (and Engaged Capital shall also advise each of its Representatives that is\nprovided with Confidential Information) of its obligations under applicable United States securities laws. No later than 8:30 AM New\nYork City time on the second business day following the Termination Date, the Company shall publicly disclose\n4\nany and all material nonpublic information delivered to Engaged Capital by means of a filing on Form 8-K or other periodic report\nrequired or permitted to be filed under applicable laws an appropriate summary description of any Confidential Information that the\nCompany determines, based on advice of the Company’s outside counsel, constitutes material nonpublic information as of such date.\nIn the event that the Company fails to comply with the foregoing obligation by 8:30 AM New York City time on the second business\nday following the Termination Date, then Engaged Capital shall thereafter be permitted to publicly disclose without liability a\nsummary that reflects any Confidential Information that it in good faith believes constitutes material nonpublic information regarding\nthe Company. The occurrence of any of the actions described in the preceding two sentences (each a “Cleansing Event”) shall\nconstitute definitive proof that Engaged Capital is free from any trading restriction imposed by or associated with this Agreement and\nnot in possession of material non-public information of the Company, and the Company and its Representatives shall not directly or\nindirectly, publicly (including in court) or privately (including via confidential communications with the SEC) take any contrary\nposition. In addition, nothing contained in this Agreement shall restrict the ability of Engaged Capital from purchasing, selling or\notherwise trading securities of the Company pursuant to any Rule 10b5-1 under the Exchange Act trading plan adopted prior to the\nexecution of this Agreement.\n11. The parties acknowledge and agree that money damages would not be a sufficient remedy for any breach (or threatened breach)\nof this Agreement and that the non-breaching party shall be entitled to equitable relief, including injunction and specific performance,\nas a remedy for any such breach (or threatened breach), without proof of damages, and the parties further agree to waive, and to\ninstruct their Representatives to waive any requirement for the securing or posting of any bond in connection with any such remedy.\nSuch remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies\navailable at law or in equity. If any action, suit or proceeding is initiated by a party to enforce the provisions hereof, the prevailing\nparty in such action, suit or proceeding shall be entitled to reimbursement of all costs and expenses, including attorneys’ fees,\nincurred by such prevailing party in connection therewith.\n12. You agree that (a) none of the Company or its Representatives shall have any liability to you or any of your Representatives\nresulting from the selection, use or content of the Confidential Information by you or your Representatives and (b) none of the\nCompany or its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of any\nConfidential Information. All Confidential Information shall remain the property of the Company and its Affiliates. Neither you nor\nany of your Representatives shall by virtue of any disclosure of and/or your or their use of any Confidential Information acquire any\nrights with respect thereto, all of which rights shall remain exclusively with the Company and its Affiliates. No failure or delay by\nany party or any of its Representatives in exercising any right, power or privilege under this Agreement shall operate as a waiver\nthereof, and no modification hereof shall be effective, unless in writing and signed by the parties hereto.\n13. All notices and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be\nin writing and shall be deemed to have been given (a) when delivered by hand, with written confirmation of receipt; (b) upon sending\nif sent by electronic mail to the electronic mail addresses below, with confirmation of receipt from the receiving party by electronic\nmail; (c) one day after being sent by a nationally recognized\n5\novernight carrier to the addresses set forth below or (d) when actually delivered if sent by any other method that results in delivery,\nwith written confirmation of receipt:\nIf to the Company:\nwith mandatory copies (which shall not\nconstitute notice) to:\nApogee Enterprises, Inc.\n4400 West 78th Street, Suite 520\nMinneapolis, MN 55435\nAttention: Patricia A. Beithon\nEmail: pbeithon@apog.com\nSidley Austin LLP\n787 Seventh Avenue, 23rd Floor\nNew York, NY 10019\nAttention: Kai H. Liekefett\nScott R. Williams\nEmail: kliekefett@sidley.com\nswilliams@sidley.com\nIf to Engaged Capital:\nwith mandatory copies (which shall not\nconstitute notice) to:\nEngaged Capital, LLC\n610 Newport Center Drive, Suite 250\nNewport Beach, CA 92660\nAttention: Glenn W. Welling\nEmail: glenn@engagedcapital.com\nOlshan Frome Wolosky LLP\n1325 Avenue of the Americas\nNew York, NY 10019\nAttention: Steve Wolosky\nRyan P. Nebel\nEmail: swolosky@olshanlaw.com\nrnebel@olshanlaw.com\n14. The illegality, invalidity or unenforceability of any provision hereof under the laws of any jurisdiction shall not affect its\nlegality, validity or enforceability under the laws of any other jurisdiction, nor the legality, validity or enforceability of any other\nprovision.\n15. This Agreement and all matters arising out of or relating to this Agreement or the validity thereof shall be governed by, and\nconstrued in accordance with, the laws of the State of Minnesota, without giving effect to its principles or rules regarding conflicts of\nlaws. The parties agree that the State and Federal courts in Hennepin County, Minnesota shall have exclusive jurisdiction for\npurposes of any action, suit or proceeding arising hereunder. Each party hereto hereby irrevocably submits with regard to any such\naction or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the\naforesaid courts and agrees that it will not bring any action relating to this Agreement in any court other than the aforesaid courts.\nEach party hereto hereby irrevocably waives, and agrees not to assert in any action or proceeding with respect to this Agreement, any\nclaim that it is not personally subject to the jurisdiction of the above-named courts for any reason, (b) any claim that it or its property\nis exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through\nservice of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and\n(c) to the fullest extent permitted by applicable legal requirements, any claim that (i) the suit, action or proceeding in such court is\nbrought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject\nmatter hereof, may not be enforced in or by\n6\nsuch courts. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN\nANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n16. As used in this Agreement: (a) the terms “Affiliate” and “Associate” (and any plurals thereof) shall have the meanings ascribed\nto such terms under Rule 12b-2 promulgated by the SEC under the Exchange Act, and (b) the term “Representatives” shall mean a\nperson’s Affiliates and Associates and its and their respective directors, officers, employees, partners, members, managers,\nconsultants, accountants, attorneys, legal or other advisors, agents and other representatives. Notwithstanding anything in this\nAgreement to the contrary, without the prior written consent of the Company, you shall not directly or indirectly share any\nConfidential Information with any of your Representatives other than (i) your officers, directors (including any members of your\nadvisory board) and employees, (ii) Olshan Frome Wolosky LLP, and (iii) such other advisors that the Company and you agreed\nupon in writing (including email).\n17. This Agreement constitutes the only agreement between the parties hereto with respect to the subject matter hereof and\nsupersedes all prior agreements, understandings, negotiations and discussions, whether oral or written. This Agreement may be\namended only by an agreement in writing executed by the parties hereto.\n18. This Agreement may be executed in separate counterparts (including by fax, .jpeg, .gif, .bmp and .pdf), each of which when so\nexecuted shall be an original, but all such counterparts shall together constitute one and the same instrument.\n19. Each party to this Agreement acknowledges that it has been represented by counsel of its choice throughout all negotiations that\nhave preceded the execution of this Agreement, and that it has executed this Agreement with the advice of such counsel. Each party\nand its counsel cooperated and participated in the drafting and preparation of this Agreement, and any and all drafts relating thereto\nexchanged among the parties hereto shall be deemed the work product of all of the parties and may not be construed against any party\nby reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any\nambiguities in this Agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each\nof the parties hereto, and any controversy over interpretations of this Agreement shall be decided without regards to events of drafting\nor preparation.\nVery truly yours,\nAPOGEE ENTERPRISES, INC.\nBy: /s/ Patricia A. Beithon\nName: Patricia A. Beithon\nTitle:\nGeneral Counsel and\nSecretary\n7\nACCEPTED AND AGREED TO BY:\nEngaged Capital Flagship Master Fund, LP\nBy: Engaged Capital, LLC\nGeneral Partner\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle:\nFounder and Chief\nInvestment Officer\nEngaged Capital Co-Invest VIII, LP\nBy: Engaged Capital, LLC\nGeneral Partner\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle:\nFounder and Chief\nInvestment Officer\nEngaged Capital Flagship Fund, LP\nBy: Engaged Capital, LLC\nGeneral Partner\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle:\nFounder and Chief\nInvestment Officer\nEngaged Capital Flagship Fund, Ltd.\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle:\nDirector\nEngaged Capital, LLC\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle:\nFounder and Chief\nInvestment Officer\nEngaged Capital Holdings, LLC\nBy: /s/ Glenn W. Welling\nName: Glenn W. Welling\nTitle:\nSole Member\n/s/ Glenn W. Welling\nGlenn W. Welling
+9872a341364a7a1b279d025c8fe86ce7.pdf	effective_date jurisdiction party term	EX-99.D.5 15 g87249toexv99wdw5.htm EX-99.D.5\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement") is made as of December 2, 2003 by and between Compass Group\nUSA, Inc., a Delaware corporation (“Compass"), and Creative Host Services, Inc., a California corporation (“Creative Host").\n1. Purpose. Compass and Creative Host wish to explore a potential business combination (a “Transaction”) in connection with which each may\ndisclose its Confidential Information to the other. Each party is willing to furnish such information to the other only for the purpose of evaluating\nsuch business combination and only pursuant to the terms of this Agreement.\n2. Definitions. As used in this Agreement:\nA party’s “Associates” shall include such party’s subsidiaries and other affiliates and the respective directors, officers, employees, agents,\nrepresentatives, consultants, accountants, attorneys, and financial or other advisors of such party and its affiliates.\n“Confidential Information” means (i) any information that relates, directly or indirectly to the business or operations of the disclosing party or\nany predecessor entity, subsidiary or affiliate of the disclosing party (including but not limited to, information concerning technical data, know-how\nand other intellectual property rights, developments, inventions, processes, designs, drawings, engineering, product plans, products, services,\nemployees, suppliers, customers, markets, software, hardware configuration information, marketing, finances, projections, budgets, notes, analyses\nor studies and all tangible and intangible embodiments thereof of any kind whatsoever, whether conveyed in writing or orally) that is or has been\nconveyed or made available to the receiving party or any Associate of the receiving party by or on behalf of the disclosing party or any Associate of\nthe disclosing party, (ii) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is\nor has been prepared by or for the receiving party or any Associate of the receiving party and that contains, reflects or interprets or is based directly\nor indirectly upon any information of the type referred to in clause “(i)” of this sentence, (iii) the existence and terms of this Agreement, and the fact\nthat information of the type referred to in clause “(i)” of this sentence has been made available to the receiving party or any of its Associates, and\n(iv) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the receiving party and the\ndisclosing party, and the proposed terms of any such transaction. Notwithstanding the foregoing, Confidential Information shall include all\ninformation which due to its nature would cause a reasonable person to know that it is confidential and proprietary to the disclosing party.\nConfidential Information does not include information, technical data or know-how which: (i) is in the possession of the receiving party at the time\nof disclosure as shown by the receiving party’s files and records immediately prior to the time of disclosure; provided that the source of such\ninformation was not bound by a confidentiality agreement with respect to such information or was not otherwise in violation of any applicable legal\nrequirement with respect to the disclosure of such information; (ii) prior to or after the time of disclosure becomes part of the public knowledge or\nliterature, not as a result\n1.\nof any inaction or action of the receiving party or its Associates; (iii) is approved for release by the disclosing party in writing; or (iv) is\nindependently developed by the receiving party without knowledge of the disclosing party’s Confidential Information.\n“Person” shall mean any individual, corporation, limited liability company, partnership, or other business entity, tribunal or governmental\nauthority.\n3. Nondisclosure of Confidential Information.\n(a) Each of Compass and Creative Host agrees to maintain in trust and confidence the Confidential Information disclosed to it by the other\nparty or its Associates, and not to use such Confidential Information for its own use or for any purpose except solely to carry out discussions\nconcerning, and the undertaking of, any negotiated business combination between the parties approved by the board of directors of each of the\nparties (“Negotiated Transaction"). Neither party will disclose any Confidential Information of the other party to third parties except those\nAssociates of such party who are required to have the information in order to carry out the discussions conduct due diligence and other activities\nrelated to the contemplated Negotiated Transaction. Each party has informed or will inform those Associates of such party to whom Confidential\nInformation of the other party is disclosed or who have access to Confidential Information of the other party of the existence of this Agreement and\nsuch party’s obligations under this Agreement with respect to Confidential Information. A breach of the terms of this Agreement by any Associate of\na party shall be deemed a breach of this Agreement by such party. Each party agrees that it will take all reasonable measures to protect the secrecy of\nand avoid disclosure or use of Confidential Information of the other party in order to prevent it from falling into the public domain or the possession\nof Persons other than those Persons authorized hereunder to have any such information, which measures shall include the degree of care that either\nparty utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify promptly the other party in writing of any\nmisuse or misappropriation of such Confidential Information of the other party which may come to its attention.\n(b) Neither this Agreement nor any action taken prior to or in connection with this Agreement will give rise to any obligation on the part of\nCompass or Creative Host (i) to engage in any discussions or negotiations with the other party or with any of the other party’s Associates or (ii) to\npursue or enter into any transaction of any nature with the other party. Each party acknowledges that neither the other party nor any of its Associates\nmakes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, or that it has provided\nthe other party with all of the information such party has requested. Except as may be provided in a definitive written agreement with respect to a\nNegotiated Transaction between the parties, if any, (A) Creative Host agrees that neither Compass nor its Associates shall have any liability to\nCreative Host or any of its Associates resulting from the use of the Confidential Information by Creative Host or its Associates or their reliance\nthereon, and (B) Compass agrees that neither Creative Host nor its Associates shall have any liability to Compass or any of its Associates resulting\nfrom the use of the Confidential Information by Compass or its Associates or their reliance thereon. Each party agrees that unless and until a\ndefinitive written agreement with respect to a Negotiated Transaction has been executed and delivered (if ever), neither party is under any legal\nobligation or liability of any kind whatsoever\n2.\nwith respect to any transaction between the parties whatsoever (including, but not limited by virtue of any written or oral expressions of interest by\ntheir respective Associates), other than the parties’ obligations to each other under this Agreement.\n4. Mandatory Disclosure.\n(a) In the event that Compass or its Associates become legally compelled under the United States securities laws or as may be required by the\nSecurities and Exchange Commission or in a proceeding before a court, arbitrator or administrative agency to disclose (A) any portion of the\nConfidential Information of Creative Host, (B) that such Confidential Information has been made available to Compass or its Associates, (C) that\ndiscussions or negotiations between Creative Host, Compass and their respective Associates are taking place, or (D) any of the terms, conditions or\nother facts with respect to any transaction between the parties hereto, including the status thereof, Compass will, and will direct its Associates to,\nprovide Creative Host with prompt written notice (to the extent permitted by law) of such legal compulsion and its intent to disclose any\nConfidential Information of Creative Host, and shall delay disclosure, if and to the extent practicable and permitted by law, until Creative Host has\nhad an opportunity to seek a protective order or other appropriate remedy or to waive compliance by Compass and/or its Associates with the relevant\nprovisions of this Agreement; provided, that no such delay or waiver shall be required as to any disclosure that Compass is advised by its counsel\nthat it is then required to make under applicable law. Compass also agrees, to the extent permitted by law, to provide Creative Host, reasonably far in\nadvance of making any such disclosure, with copies of any Confidential Information that it intends to disclose (and, if applicable, the text of the\ndisclosure language itself) and to cooperate with Creative Host, at the expense of Creative Host, in order to seek to obtain a protective order, if\navailable, and to take any other legally available steps to limit such disclosure. In the event that a protective order or other remedy is not obtained in\nsuch a proceeding, or Creative Host fails to waive compliance with the relevant provisions of this Agreement, Compass agrees that it will, and will\ncause its Associates to, disclose only that Confidential Information of Creative Host which its counsel advises (except that no advice of counsel shall\nbe required in the case of oral testimony where (X) it is impracticable to obtain such advice and (Y) counsel has advised the testifying witness of the\nobligations imposed by this Section 4 prior to his or her testimony) is legally required to be disclosed and will exercise its best efforts, and will cause\nits Associates to exercise their best efforts, at the request and expense of Creative Host, to cooperate with Creative Host to obtain reliable assurance\nthat confidential treatment will be accorded the Confidential Information which is so disclosed.\n(b) In the event that Creative Host or its Associates become legally compelled under the United States securities laws or as may be required\nby the Securities and Exchange Commission or in a proceeding before a court, arbitrator or administrative agency to disclose (A) any portion of the\nConfidential Information of Compass, (B) that such Confidential Information has been made available to Creative Host or its Associates, (C) that\ndiscussions or negotiations between Creative Host, Compass and their respective Associates are taking place, or (D) any of the terms, conditions or\nother facts with respect to any transaction between the parties hereto, including the status thereof, Creative Host will, and will direct its Associates\nto, provide Compass with prompt written notice (to the extent permitted by law) of such legal compulsion\n3.\nand its intent to disclose any Confidential Information of Compass, and shall delay disclosure, if and to the extent practicable and permitted by law,\nuntil Compass has had an opportunity to seek a protective order or other appropriate remedy or to waive compliance by Creative Host and/or its\nAssociates with the relevant provisions of this Agreement provided, that no such delay or waiver shall be required as to any disclosure that Creative\nHost is advised by its counsel that it is then required to make under applicable law. Creative Host also agrees, to the extent permitted by law, to\nprovide Compass, reasonably far in advance of making any such disclosure, with copies of any Confidential Information that it intends to disclose\n(and, if applicable, the text of the disclosure language itself) and to cooperate with Compass, at the expense of Compass, in order to seek to obtain a\nprotective order, if available, and to take any other legally available steps to limit such disclosure. In the event that a protective order or other remedy\nis not obtained in such a proceeding, or Compass fails to waive compliance with the relevant provisions of this Agreement, Creative Host agrees that\nit will, and will cause its Associates to, disclose only that Confidential Information of Compass which its counsel advises (except that no advice of\ncounsel shall be required in the case of oral testimony where (X) it is impracticable to obtain such advice and (Y) counsel has advised the testifying\nwitness of the obligations imposed by this Section 4 prior to his or her testimony) is legally required to be disclosed and will exercise its best efforts,\nand will cause its Associates to exercise their best efforts, at the request and expense of Compass, to cooperate with Compass to obtain reliable\nassurance that confidential treatment will be accorded the Confidential Information which is so disclosed.\n(c) Notwithstanding anything herein to the contrary, any party to this Agreement (and any Associate of any party to this Agreement) may\ndisclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind\n(including opinions or other tax analyses) that are provided to it relating to such tax treatment and tax structure; provided, however, that such\ndisclosure may not be made (i) until the earlier of (x) the date of the public announcement of discussions relating to the Transaction, if any, (y) the\ndate of the public announcement of the Transaction, if any and (z) the date of the execution of an agreement to enter into the Transaction, if any and\n(ii) to the extent required to be kept confidential to comply with any applicable federal or state securities laws, provided, however, that neither party\n(nor its Associates) may disclose any other information that is not relevant to understanding the tax treatment and tax structure of the Transaction.\n5. Return of Materials. Promptly upon request by the disclosing party, the receiving party will, and will cause its Associates to, deliver to the\ndisclosing party any written Confidential Information of the disclosing party and all copies or modifications thereof, except for that portion of the\nConfidential Information which consists of analyses, compilations, studies or other documents prepared by the receiving party or its Associates,\nwithout retaining any copy thereof. That portion of the Confidential Information or any modification thereof which consists of analyses,\ncompilations, studies or other documents prepared by the receiving party or its Associates and that is not returned to the other party shall be\ndestroyed and no copy thereof shall be retained and such receiving party shall certify in writing that such destruction has occurred. Notwithstanding\nthe foregoing, legal counsel to each of Compass and Creative Host may retain one copy of all Confidential Information possessed by such legal\ncounsel for their records.\n4.\n6. No License Granted; Privileged Information. Nothing in this Agreement is intended to grant any rights to either party under any patent,\ncopyright, trade secret or other intellectual property right nor shall this Agreement grant either party any rights in or to the other party’s Confidential\nInformation, except the limited right to review such Confidential Information solely for the purposes of determining whether to enter into the\nproposed business relationship between the parties. To the extent that any Confidential Information includes materials or other information that may\nbe subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidentiality\nInformation or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed\nthat the parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or\ndispute and that it is the parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended\nto, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such\nmaterials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all\nConfidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or\ndoctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the parties agree to take\nall measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n7. Nonpublicity. The existence and the terms of this Agreement, the transactions contemplated hereby, and the existence and nature of the\ndiscussions between the parties shall be maintained in confidence by the parties hereto and by their respective Associates and shall not be disclosed\nto any third party. Neither party hereto shall take, or cause to be taken, any action which might require the other party to make a public\nannouncement regarding the transactions contemplated under this Agreement. By executing and delivering this agreement each of Creative Host and\nCompass confirms to the other that it is aware and that its Associates have been advised that the federal and state securities laws prohibit any person\nwho possesses material, non-public information about a company from purchasing or selling securities of such company, so long as such information\nremains material and non-public.\n8. Mutual Nonsolicitation. Creative Host and Compass each covenants and agrees that for a period expiring one (1) year after the date of this\nAgreement, the parties will not directly or indirectly solicit, induce, recruit or encourage any then-current employees of the other party that they\ncame in contact with in connection with their consideration of the Transaction to terminate their employment, or attempt to solicit, induce or recruit\nsuch specified employees of the other party. The publication of advertisements in newspapers and/or other publications of general circulation\n(including trade publications) shall not in any event be deemed a violation of any provision of this Agreement so long as such advertisements do not\nspecifically target any above-referenced employee of Creative Host or Compass.\n9. Standstill Provisions. During the one-year period commencing on the date of this letter agreement (the “Standstill Period"), except\npursuant to a Negotiated Transaction, neither Compass nor any of Compass’s Associates will, in any manner, directly or indirectly:\n5.\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Creative Host or any securities\nof any subsidiary or other affiliate of Creative Host, (ii) any acquisition of any assets of Creative Host or any assets of any subsidiary or other\naffiliate of Creative Host, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation,\ndissolution or extraordinary transaction involving Creative Host or any subsidiary or other affiliate of Creative Host, or involving any securities\nor assets of Creative Host or any securities or assets of any subsidiary or other affiliate of Creative Host, or (iv) any “solicitation” of “proxies”\n(as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Creative\nHost;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Creative Host;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Creative Host;\n(d) take any action that might require Creative Host to make a public announcement regarding any of the types of matters set forth in clause\n“(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clauses “(a)”, “(b)”, “(c)” or\n“(d)” of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clauses “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this\nsentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) publicly request or propose that Creative Host or any of Creative Host’s Associates amend, waive or consider the amendment or waiver\nof any provision set forth in this Section 9.\nNotwithstanding this Section 9, if (a)(i) the Board of Directors of Creative Host approves a transaction with any person and (ii) such transaction\nwould result in such person beneficially owning more than 50% of the outstanding voting securities of Creative Host or all or substantially all of\nCreative Host’s assets, or (b) any person or “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended,\nshall have commenced or publicly announced its intention to commence a tender or exchange offer for more than 50% of the outstanding voting\nsecurities of Creative Host, or any securities convertible into more than 50% of the outstanding voting securities of Creative Host, or any options,\nwarrants or other rights to acquire more than 50% of the outstanding voting securities of Creative Host, then Compass or any of Compass’s\nAssociates shall not be prohibited thereafter from taking any of the actions described in this Section 9.\n6.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.\n10. Term. The covenants and commitments of either party in this Agreement shall survive any termination of discussions between the parties,\nand shall continue for a period of two (2) years following the date of this Agreement.\n11. Successors and Assigns; Waiver and Amendment. The provisions of this Agreement shall inure to the benefit of and be binding upon\nCreative Host, Compass and their respective affiliates, successors and assigns, including any successor to Creative Host or Compass of substantially\nall of Creative Host’s or Compass’ assets or business, by merger, consolidation, purchase of assets, purchase of stock or otherwise. No failure or\ndelay by either party or any of its Associates in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and\nno single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right,\npower or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is\nvalidly executed on behalf of each of the parties and that refers specifically to the particular provision or provisions being waived or amended.\n12. Dispute Resolution and Governing Law. Should any dispute between the parties arise under this Agreement, Compass and Creative Host,\nthrough appropriately senior persons, shall first meet and attempt to resolve the dispute in face-to-face negotiations. This meeting shall occur within\nthirty days of the time the dispute arises.\nIf no resolution is reached, Compass and Creative Host shall, within forty-five days of the first meeting, attempt to settle the dispute by formal\nmediation. If the parties cannot agree upon the appointment of a mediator and the place of the mediation within sixty days of the first meeting, the\nmediation shall be administered by the American Arbitration Association in Wilmington, Delaware with the parties splitting the cost of the mediator.\nIf no resolution is reached in mediation, the dispute shall be resolved by binding arbitration before a three-arbitrator panel, administered by the\nAmerican Arbitration Association.\nThis Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, and shall be\nbinding upon the parties hereto in the United States and worldwide.\nNotwithstanding the foregoing dispute resolution and governing law provisions, Compass and Creative Host shall each retain the right to seek\njudicial injunctive and other equitable relief, as provided in Section 13, where appropriate.\n13. Remedies; Severability. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party\nand the other party’s business, and expressly agrees that monetary damages may be inadequate to compensate the other party for any breach by either\nparty of any covenants and agreements set forth herein. Accordingly, each party\n7.\nagrees and acknowledges that any such violation or threatened violation will cause irreparable injury to the other party and that, in addition to any\nother remedies that may be available, in law, in equity or otherwise, the other party shall be entitled to injunctive relief against the threatened breach\nof this Agreement or the continuation of any such breach, without the necessity of proving actual damages. Each party also agrees that it will not\nseek and agrees to waive any requirement for the securing or posting of a bond in connection with the aggrieved party’s obtaining of equitable relief\npursuant to this Section 13. The equitable remedies referred to above will not be deemed to be the exclusive remedy for a breach of this Agreement,\nbut rather will be in addition to all other remedies available at law or in equity to the parties. The invalidity or unenforceability of any provision of\nthis Agreement shall not affect the validity or enforceability of any other provision of this Agreement.\n14. Complete Agreement. This Agreement constitutes the entire agreement between Compass and Creative Host regarding the subject matter\nhereof and supersedes any prior agreement between the parties hereto, including the Confidential Disclosure Agreement dated August 21, 2003,\nregarding the subject matter hereof.\n15. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one and the same instrument.\n[SIGNATURE PAGE TO FOLLOW]\n8.\nIn witness whereof, the parties have executed this Agreement as of the day and year first above written.\nCompass Group USA, Inc.\nBy:\n/s/ C. Palmer Brown\nTitle: VP Corporate Development\nCreative Host Services, Inc.\nBy:\n/s/ Sayed Ali\nTitle: President\n[SIGNATURE PAGE TO MUTUAL NONDISCLOSURE AGREEMENT]	EX-99.D.5 15 g87249toexv99wdwb5.htm EX-99.D.5\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement") is made as of December 2, 2003 by and between Compass Group\nUSA, Inc., a Delaware corporation (“Compass"), and Creative Host Services, Inc., a California corporation (“Creative Host").\n1. Purpose. Compass and Creative Host wish to explore a potential business combination (a “Transaction”) in connection with which each may\ndisclose its Confidential Information to the other. Each party is willing to furnish such information to the other only for the purpose of evaluating\nsuch business combination and only pursuant to the terms of this Agreement.\n2. Definitions. As used in this Agreement:\nA party’s “Associates” shall include such party’s subsidiaries and other affiliates and the respective directors, officers, employees, agents,\nrepresentatives, consultants, accountants, attorneys, and financial or other advisors of such party and its affiliates.\n“Confidential Information” means (i) any information that relates, directly or indirectly to the business or operations of the disclosing party or\nany predecessor entity, subsidiary or affiliate of the disclosing party (including but not limited to, information concerning technical data, know-how\nand other intellectual property rights, developments, inventions, processes, designs, drawings, engineering, product plans, products, services,\nemployees, suppliers, customers, markets, software, hardware configuration information, marketing, finances, projections, budgets, notes, analyses\nor studies and all tangible and intangible embodiments thereof of any kind whatsoever, whether conveyed in writing or orally) that is or has been\nconveyed or made available to the receiving party or any Associate of the receiving party by or on behalf of the disclosing party or any Associate of\nthe disclosing party, (ii) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is\nor has been prepared by or for the receiving party or any Associate of the receiving party and that contains, reflects or interprets or is based directly\nor indirectly upon any information of the type referred to in clause “(i)” of this sentence, (iii) the existence and terms of this Agreement, and the fact\nthat information of the type referred to in clause “(i)” of this sentence has been made available to the receiving party or any of its Associates, and\n(iv) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the receiving party and the\ndisclosing party, and the proposed terms of any such transaction. Notwithstanding the foregoing, Confidential Information shall include all\ninformation which due to its nature would cause a reasonable person to know that it is confidential and proprietary to the disclosing party.\nConfidential Information does not include information, technical data or know-how which: (i) is in the possession of the receiving party at the time\nof disclosure as shown by the receiving party’s files and records immediately prior to the time of disclosure; provided that the source of such\ninformation was not bound by a confidentiality agreement with respect to such information or was not otherwise in violation of any applicable legal\nrequirement with respect to the disclosure of such information; (ii) prior to or after the time of disclosure becomes part of the public knowledge or\nliterature, not as a result\n \nof any inaction or action of the receiving party or its Associates; (iii) is approved for release by the disclosing party in writing; or (iv) is\nindependently developed by the receiving party without knowledge of the disclosing party’s Confidential Information.\n“Person” shall mean any individual, corporation, limited liability company, partnership, or other business entity, tribunal or governmental\nauthority.\n3. Nondisclosure of Confidential Information.\n(a) Each of Compass and Creative Host agrees to maintain in trust and confidence the Confidential Information disclosed to it by the other\nparty or its Associates, and not to use such Confidential Information for its own use or for any purpose except solely to carry out discussions\nconcerning, and the undertaking of, any negotiated business combination between the parties approved by the board of directors of each of the\nparties (“Negotiated Transaction"). Neither party will disclose any Confidential Information of the other party to third parties except those\nAssociates of such party who are required to have the information in order to carry out the discussions conduct due diligence and other activities\nrelated to the contemplated Negotiated Transaction. Each party has informed or will inform those Associates of such party to whom Confidential\nInformation of the other party is disclosed or who have access to Confidential Information of the other party of the existence of this Agreement and\nsuch party’s obligations under this Agreement with respect to Confidential Information. A breach of the terms of this Agreement by any Associate of\na party shall be deemed a breach of this Agreement by such party. Each party agrees that it will take all reasonable measures to protect the secrecy of\nand avoid disclosure or use of Confidential Information of the other party in order to prevent it from falling into the public domain or the possession\nof Persons other than those Persons authorized hereunder to have any such information, which measures shall include the degree of care that either\nparty utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify promptly the other party in writing of any\nmisuse or misappropriation of such Confidential Information of the other party which may come to its attention.\n(b) Neither this Agreement nor any action taken prior to or in connection with this Agreement will give rise to any obligation on the part of\nCompass or Creative Host (i) to engage in any discussions or negotiations with the other party or with any of the other party’s Associates or (ii) to\npursue or enter into any transaction of any nature with the other party. Each party acknowledges that neither the other party nor any of its Associates\nmakes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, or that it has provided\nthe other party with all of the information such party has requested. Except as may be provided in a definitive written agreement with respect to a\nNegotiated Transaction between the parties, if any, (A) Creative Host agrees that neither Compass nor its Associates shall have any liability to\nCreative Host or any of its Associates resulting from the use of the Confidential Information by Creative Host or its Associates or their reliance\nthereon, and (B) Compass agrees that neither Creative Host nor its Associates shall have any liability to Compass or any of its Associates resulting\nfrom the use of the Confidential Information by Compass or its Associates or their reliance thereon. Each party agrees that unless and until a\ndefinitive written agreement with respect to a Negotiated Transaction has been executed and delivered (if ever), neither party is under any legal\nobligation or liability of any kind whatsoever\n \nwith respect to any transaction between the parties whatsoever (including, but not limited by virtue of any written or oral expressions of interest by\ntheir respective Associates), other than the parties’ obligations to each other under this Agreement.\n4. Mandatory Disclosure.\n(a) In the event that Compass or its Associates become legally compelled under the United States securities laws or as may be required by the\nSecurities and Exchange Commission or in a proceeding before a court, arbitrator or administrative agency to disclose (A) any portion of the\nConfidential Information of Creative Host, (B) that such Confidential Information has been made available to Compass or its Associates, (C) that\ndiscussions or negotiations between Creative Host, Compass and their respective Associates are taking place, or (D) any of the terms, conditions or\nother facts with respect to any transaction between the parties hereto, including the status thereof, Compass will, and will direct its Associates to,\nprovide Creative Host with prompt written notice (to the extent permitted by law) of such legal compulsion and its intent to disclose any\nConfidential Information of Creative Host, and shall delay disclosure, if and to the extent practicable and permitted by law, until Creative Host has\nhad an opportunity to seek a protective order or other appropriate remedy or to waive compliance by Compass and/or its Associates with the relevant\nprovisions of this Agreement; provided, that no such delay or waiver shall be required as to any disclosure that Compass is advised by its counsel\nthat it is then required to make under applicable law. Compass also agrees, to the extent permitted by law, to provide Creative Host, reasonably far in\nadvance of making any such disclosure, with copies of any Confidential Information that it intends to disclose (and, if applicable, the text of the\ndisclosure language itself) and to cooperate with Creative Host, at the expense of Creative Host, in order to seek to obtain a protective order, if\navailable, and to take any other legally available steps to limit such disclosure. In the event that a protective order or other remedy is not obtained in\nsuch a proceeding, or Creative Host fails to waive compliance with the relevant provisions of this Agreement, Compass agrees that it will, and will\ncause its Associates to, disclose only that Confidential Information of Creative Host which its counsel advises (except that no advice of counsel shall\nbe required in the case of oral testimony where (X) it is impracticable to obtain such advice and (Y) counsel has advised the testifying witness of the\nobligations imposed by this Section 4 prior to his or her testimony) is legally required to be disclosed and will exercise its best efforts, and will cause\nits Associates to exercise their best efforts, at the request and expense of Creative Host, to cooperate with Creative Host to obtain reliable assurance\nthat confidential treatment will be accorded the Confidential Information which is so disclosed.\n(b) In the event that Creative Host or its Associates become legally compelled under the United States securities laws or as may be required\nby the Securities and Exchange Commission or in a proceeding before a court, arbitrator or administrative agency to disclose (A) any portion of the\nConfidential Information of Compass, (B) that such Confidential Information has been made available to Creative Host or its Associates, (C) that\ndiscussions or negotiations between Creative Host, Compass and their respective Associates are taking place, or (D) any of the terms, conditions or\nother facts with respect to any transaction between the parties hereto, including the status thereof, Creative Host will, and will direct its Associates\nto, provide Compass with prompt written notice (to the extent permitted by law) of such legal compulsion\n3.\n \nand its intent to disclose any Confidential Information of Compass, and shall delay disclosure, if and to the extent practicable and permitted by law,\nuntil Compass has had an opportunity to seek a protective order or other appropriate remedy or to waive compliance by Creative Host and/or its\nAssociates with the relevant provisions of this Agreement provided, that no such delay or waiver shall be required as to any disclosure that Creative\nHost is advised by its counsel that it is then required to make under applicable law. Creative Host also agrees, to the extent permitted by law, to\nprovide Compass, reasonably far in advance of making any such disclosure, with copies of any Confidential Information that it intends to disclose\n(and, if applicable, the text of the disclosure language itself) and to cooperate with Compass, at the expense of Compass, in order to seek to obtain a\nprotective order, if available, and to take any other legally available steps to limit such disclosure. In the event that a protective order or other remedy\nis not obtained in such a proceeding, or Compass fails to waive compliance with the relevant provisions of this Agreement, Creative Host agrees that\nit will, and will cause its Associates to, disclose only that Confidential Information of Compass which its counsel advises (except that no advice of\ncounsel shall be required in the case of oral testimony where (X) it is impracticable to obtain such advice and (Y) counsel has advised the testifying\nwitness of the obligations imposed by this Section 4 prior to his or her testimony) is legally required to be disclosed and will exercise its best efforts,\nand will cause its Associates to exercise their best efforts, at the request and expense of Compass, to cooperate with Compass to obtain reliable\nassurance that confidential treatment will be accorded the Confidential Information which is so disclosed.\n(c) Notwithstanding anything herein to the contrary, any party to this Agreement (and any Associate of any party to this Agreement) may\ndisclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind\n(including opinions or other tax analyses) that are provided to it relating to such tax treatment and tax structure; provided, however, that such\ndisclosure may not be made (i) until the earlier of (x) the date of the public announcement of discussions relating to the Transaction, if any, (y) the\ndate of the public announcement of the Transaction, if any and (z) the date of the execution of an agreement to enter into the Transaction, if any and\n(ii) to the extent required to be kept confidential to comply with any applicable federal or state securities laws, provided, however, that neither party\n(nor its Associates) may disclose any other information that is not relevant to understanding the tax treatment and tax structure of the Transaction.\n5. Return of Materials. Promptly upon request by the disclosing party, the receiving party will, and will cause its Associates to, deliver to the\ndisclosing party any written Confidential Information of the disclosing party and all copies or modifications thereof, except for that portion of the\nConfidential Information which consists of analyses, compilations, studies or other documents prepared by the receiving party or its Associates,\nwithout retaining any copy thereof. That portion of the Confidential Information or any modification thereof which consists of analyses,\ncompilations, studies or other documents prepared by the receiving party or its Associates and that is not returned to the other party shall be\ndestroyed and no copy thereof shall be retained and such receiving party shall certify in writing that such destruction has occurred. Notwithstanding\nthe foregoing, legal counsel to each of Compass and Creative Host may retain one copy of all Confidential Information possessed by such legal\ncounsel for their records.\n \n6. No License Granted; Privileged Information. Nothing in this Agreement is intended to grant any rights to either party under any patent,\ncopyright, trade secret or other intellectual property right nor shall this Agreement grant either party any rights in or to the other party’s Confidential\nInformation, except the limited right to review such Confidential Information solely for the purposes of determining whether to enter into the\nproposed business relationship between the parties. To the extent that any Confidential Information includes materials or other information that may\nbe subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidentiality\nInformation or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed\nthat the parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or\ndispute and that it is the parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended\nto, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such\nmaterials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all\nConfidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or\ndoctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the parties agree to take\nall measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n7. Nonpublicity. The existence and the terms of this Agreement, the transactions contemplated hereby, and the existence and nature of the\ndiscussions between the parties shall be maintained in confidence by the parties hereto and by their respective Associates and shall not be disclosed\nto any third party. Neither party hereto shall take, or cause to be taken, any action which might require the other party to make a public\nannouncement regarding the transactions contemplated under this Agreement. By executing and delivering this agreement each of Creative Host and\nCompass confirms to the other that it is aware and that its Associates have been advised that the federal and state securities laws prohibit any person\nwho possesses material, non-public information about a company from purchasing or selling securities of such company, so long as such information\nremains material and non-public.\n8. Mutual Nonsolicitation. Creative Host and Compass each covenants and agrees that for a period expiring one (1) year after the date of this\nAgreement, the parties will not directly or indirectly solicit, induce, recruit or encourage any then-current employees of the other party that they\ncame in contact with in connection with their consideration of the Transaction to terminate their employment, or attempt to solicit, induce or recruit\nsuch specified employees of the other party. The publication of advertisements in newspapers and/or other publications of general circulation\n(including trade publications) shall not in any event be deemed a violation of any provision of this Agreement so long as such advertisements do not\nspecifically target any above-referenced employee of Creative Host or Compass.\n9. Standstill Provisions. During the one-year period commencing on the date of this letter agreement (the “Standstill Period"), except\npursuant to a Negotiated Transaction, neither Compass nor any of Compass’s Associates will, in any manner, directly or indirectly:\n5.\n \n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Creative Host or any securities\nof any subsidiary or other affiliate of Creative Host, (ii) any acquisition of any assets of Creative Host or any assets of any subsidiary or other\naffiliate of Creative Host, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation,\ndissolution or extraordinary transaction involving Creative Host or any subsidiary or other affiliate of Creative Host, or involving any securities\nor assets of Creative Host or any securities or assets of any subsidiary or other affiliate of Creative Host, or (iv) any “solicitation” of “proxies”\n(as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Creative\nHost;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Creative Host;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Creative Host;\n(d) take any action that might require Creative Host to make a public announcement regarding any of the types of matters set forth in clause\n“(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clauses “(a)”, “(b)”, “(c)” or\n“(d)” of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clauses “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this\nsentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) publicly request or propose that Creative Host or any of Creative Host’s Associates amend, waive or consider the amendment or waiver\nof any provision set forth in this Section 9.\nNotwithstanding this Section 9, if (a)(i) the Board of Directors of Creative Host approves a transaction with any person and (ii) such transaction\nwould result in such person beneficially owning more than 50% of the outstanding voting securities of Creative Host or all or substantially all of Creative Host’s assets, or (b) any person or “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, shall have commenced or publicly announced its intention to commence a tender or exchange offer for more than 50% of the outstanding voting securities of Creative Host, or any securities convertible into more than 50% of the outstanding voting securities of Creative Host, or any options, warrants or other rights to acquire more than 50% of the outstanding voting securities of Creative Host, then Compass or any of Compass’s Associates shall not be prohibited thereafter from taking any of the actions described in this Section 9. 6.\n \nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.\n10. Term. The covenants and commitments of either party in this Agreement shall survive any termination of discussions between the parties,\nand shall continue for a period of two (2) years following the date of this Agreement.\n11.  Successors and Assigns; Waiver and Amendment. The provisions of this Agreement shall inure to the benefit of and be binding upon\nCreative Host, Compass and their respective affiliates, successors and assigns, including any successor to Creative Host or Compass of substantially\nall of Creative Host’s or Compass’ assets or business, by merger, consolidation, purchase of assets, purchase of stock or otherwise. No failure or\ndelay by either party or any of its Associates in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and\nno single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right,\npower or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is\nvalidly executed on behalf of each of the parties and that refers specifically to the particular provision or provisions being waived or amended.\n12. Dispute Resolution and Governing Law. Should any dispute between the parties arise under this Agreement, Compass and Creative Host,\nthrough appropriately senior persons, shall first meet and attempt to resolve the dispute in face-to-face negotiations. This meeting shall occur within\nthirty days of the time the dispute arises.\nIf no resolution is reached, Compass and Creative Host shall, within forty-five days of the first meeting, attempt to settle the dispute by formal\nmediation. If the parties cannot agree upon the appointment of a mediator and the place of the mediation within sixty days of the first meeting, the\nmediation shall be administered by the American Arbitration Association in Wilmington, Delaware with the parties splitting the cost of the mediator.\nIf no resolution is reached in mediation, the dispute shall be resolved by binding arbitration before a three-arbitrator panel, administered by the\nAmerican Arbitration Association.\nThis Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, and shall be\nbinding upon the parties hereto in the United States and worldwide.\nNotwithstanding the foregoing dispute resolution and governing law provisions, Compass and Creative Host shall each retain the right to seek\njudicial injunctive and other equitable relief, as provided in Section 13, where appropriate.\n13. Remedies; Severability. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party\nand the other party’s business, and expressly agrees that monetary damages may be inadequate to compensate the other party for any breach by either\nparty of any covenants and agreements set forth herein. Accordingly, each party\n7.\n \nagrees and acknowledges that any such violation or threatened violation will cause irreparable injury to the other party and that, in addition to any\nother remedies that may be available, in law, in equity or otherwise, the other party shall be entitled to injunctive relief against the threatened breach\nof this Agreement or the continuation of any such breach, without the necessity of proving actual damages. Each party also agrees that it will not\nseek and agrees to waive any requirement for the securing or posting of a bond in connection with the aggrieved party’s obtaining of equitable relief\npursuant to this Section 13. The equitable remedies referred to above will not be deemed to be the exclusive remedy for a breach of this Agreement,\nbut rather will be in addition to all other remedies available at law or in equity to the parties. The invalidity or unenforceability of any provision of\nthis Agreement shall not affect the validity or enforceability of any other provision of this Agreement.\n14. Complete Agreement. This Agreement constitutes the entire agreement between Compass and Creative Host regarding the subject matter\nhereof and supersedes any prior agreement between the parties hereto, including the Confidential Disclosure Agreement dated August 21, 2003,\nregarding the subject matter hereof.\n15. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one and the same instrument.\n[SIGNATURE PAGE TO FOLLOW]\n8.\nIn witness whereof, the parties have executed this Agreement as of the day and year first above written.\nCompass Group USA, Inc.\nBy: /s/ C. Palmer Brown\nTitle: VP Corporate Development\nCreative Host Services, Inc.\nBy: /s/ Sayed Ali\nTitle:  President\n[SIGNATURE PAGE TO MUTUAL NONDISCLOSURE AGREEMENT]	EX-99.D.5 15 g87249toexv99wdw5.htm E EX-99.D.5\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS MUTUAL NONDISCLOSURE AGREEMENT (this "Agreement") is made as of December 2, 2003 by and between Compass Group\nUSA, Inc., a Delaware corporation ("Compass"), and Creative Host Services, Inc., a California corporation ("Creative Host").\n1.\nPurpose. Compass and Creative Host wish to explore a potential business combination (a "Transaction") in connection with which each may\ndisclose its Confidential Information to the other. Each party is willing to furnish such information to the other only for the purpose of evaluating\nsuch business combination and only pursuant to the terms of this Agreement.\n2. Definitions. As used in this Agreement:\nA\nparty's "Associates" shall include such party's subsidiaries and other affiliates and the respective directors, officers, employees, agents,\nrepresentatives, consultants, accountants, attorneys, and financial or other advisors of such party and its affiliates.\n"Confidential Information" means (i) any information that relates, directly or indirectly to the business or operations of the disclosing party or\nany predecessor entity, subsidiary or affiliate of the disclosing party (including but not limited to, information concerning technical data, know-how\nand other intellectual property rights, developments, inventions, processes, designs, drawings, engineering, product plans, products, services,\nemployees, suppliers, customers, markets, software, hardware configuration information, marketing, finances, projections, budgets, notes, analyses\nor studies and all tangible and intangible embodiments thereof of any kind whatsoever, whether conveyed in writing or orally) that is or has been\nconveyed or made available to the receiving party or any Associate of the receiving party by or on behalf of the disclosing party or any Associate of\nthe disclosing party, (ii) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that\nis\nor has been prepared by or for the receiving party or any Associate of the receiving party and that contains, reflects or interprets or is based directly\nor\nindirectly upon any information of the type referred to in clause "(i)" of this sentence, (iii) the existence and terms of this Agreement, and the fact\nthat information of the type referred to in clause "(i)" of this sentence has been made available to the receiving party or any of its Associates, and\n(iv) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the receiving party and the\ndisclosing party, and the proposed terms of any such transaction. Notwithstanding the foregoing, Confidential Information shall include all\ninformation which due to its nature would cause a reasonable person to know that it is confidential and proprietary to the disclosing party.\nConfidential Information does not include information, technical data or know-how which: (i) is in the possession of the receiving party at the time\nof disclosure as shown by the receiving party's files and records immediately prior to the time of disclosure; provided that the source of such\ninformation was not bound by a confidentiality agreement with respect to such information or was not otherwise in violation of any applicable legal\nrequirement with respect to the disclosure of such information; (ii) prior to or after the time of disclosure becomes part of the public knowledge or\nliterature, not as a result\n1.\nof any inaction or action of the receiving party or its Associates; (iii) is approved for release by the disclosing party in writing; or (iv) is\nindependently developed by the receiving party without knowledge of the disclosing party's Confidential Information.\n"Person" shall mean any individual, corporation, limited liability company, partnership, or other business entity, tribunal or governmental\nauthority.\n3. Nondisclosure of Confidential Information.\n(a) Each of Compass and Creative Host agrees to maintain in trust and confidence the Confidentia Information disclosed to it by the other\nparty or its Associates, and not to use such Confidential Information for its own use or for any purpose except solely to carry out discussions\nconcerning, and the undertaking of, any negotiated business combination between the parties approved by the board of directors of each of\nthe\nparties ("Negotiated Transaction") Neither party will disclose any Confidential Information of the other party to third parties except those\nAssociates of such party who are required to have the information in order to carry out the discussions conduct due diligence and other activities\nrelated to the contemplated Negotiated Transaction. Each party has informed or will inform those Associates of such party to whom Confidential\nInformation of the other party is disclosed or who have access to Confidential Information of the other party of the existence of this Agreement and\nsuch party's obligations under this Agreement with respect to Confidential Information. A breach of the terms of this Agreement by any Associate of\na party shall be deemed a breach of this Agreement by such party. Each party agrees that it will take all reasonable measures to protect the secrecy\nof\nand avoid disclosure or use of Confidential Information of the other party in order to prevent it from falling into the public domain or the possession\nof Persons other than those Persons authorized hereunder to have any such information, which measures shall include the degree of care that either\nparty utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify promptly the other party in writing of any\nmisuse or misappropriation of such Confidential Information of the other party which may come to its attention.\n(b) Neither this Agreement nor any action taken prior to or in connection with this Agreement will give rise to any obligation on the part of\nCompass or Creative Host (i) to engage in any discussions or negotiations with the other party or with any of the other party's Associates or (ii) to\npursue or enter into any transaction of any nature with the other party. Each party acknowledges that neither the other party nor any of its Associates\nmakes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, or that it has provided\nthe other party with all of the information such party has requested. Except as may be provided in a definitive written agreement with respect to a\nNegotiated Transaction between the parties, if any, (A) Creative Host agrees that neither Compass nor its Associates shall have any liability\nto\nCreative Host or any of its Associates resulting from the use of the Confidential Information by Creative Host or its Associates or their reliance\nthereon, and (B) Compass agrees that neither Creative Host nor its Associates shall have any liability to Compass or any of its Associates resulting\nfrom the use of the Confidential Information by Compass or its Associates or their reliance thereon. Each party agrees that unless and until a\ndefinitive written agreement with respect to a Negotiated Transaction has been executed and delivered (if ever), neither party is under any legal\nobligation or liability of any kind whatsoever\n2.\nwith respect to any transaction between the parties whatsoever (including, but not limited by virtue of any written or oral expressions of interest by\ntheir respective Associates), other than the parties' obligations to each other under this Agreement.\n4. Mandatory Disclosure.\n(a) In the event that Compass or its Associates become legally compelled under the United States securities laws or as may be required by the\nSecurities and Exchange Commission or in a proceeding before a court, arbitrator or administrative agency to disclose (A) any portion of the\nConfidential Information of Creative Host, (B) that such Confidential Information has been made available to Compass or its Associates, (C) that\ndiscussions or negotiations between Creative Host, Compass and their respective Associates are taking place, or (D) any of the terms, conditions or\nother facts with respect to any transaction between the parties hereto, including the status thereof, Compass will, and will direct its Associates to,\nprovide Creative Host with prompt written notice (to the extent permitted by law) of such legal compulsion and its intent to disclose any\nConfidential Information of Creative Host, and shall delay disclosure, if and to the extent practicable and permitted by law, until Creative Host\nhas\nhad an opportunity to seek a protective order or other appropriate remedy or to waive compliance by Compass and/or its Associates with the relevant\nprovisions of this Agreement; provided, that no such delay or waiver shall be required as to any disclosure that Compass is advised by its counsel\nthat it is then required to make under applicable law. Compass also agrees, to the extent permitted by law, to provide Creative Host, reasonably far in\nadvance of making any such disclosure, with copies of any Confidential Information that it intends to disclose (and, if applicable, the text of\nthe\ndisclosure language itself) and to cooperate with Creative Host, at the expense of Creative Host, in order to seek to obtain a protective order, if\navailable, and to take any other legally available steps to limit such disclosure. In the event that a protective order or other remedy is not obtained in\nsuch a proceeding, or Creative Host fails to waive compliance with the relevant provisions of this Agreement, Compass agrees that it will, and will\ncause its Associates to, disclose only that Confidential Information of Creative Host which its counsel advises (except that no advice of counsel shall\nbe required in the case of oral testimony where (X) it is impracticable to obtain such advice and (Y) counsel has advised the testifying witness of the\nobligations imposed by this Section 4 prior to his or her testimony) is legally required to be disclosed and will exercise its best efforts, and will cause\nits Associates to exercise their best efforts, at the request and expense of Creative Host, to cooperate with Creative Host to obtain reliable assurance\nthat confidential treatment will be accorded the Confidential Information which is so disclosed.\n(b) In the event that Creative Host or its Associates become legally compelled under the United States securities laws or as may be required\nby the Securities and Exchange Commission or in a proceeding before a court, arbitrator or administrative agency to disclose (A) any portion of the\nConfidential Information of Compass, (B) that such Confidential Information has been made available to Creative Host or its Associates, (C) that\ndiscussions or negotiations between Creative Host, Compass and their respective Associates are taking place, or (D) any of the terms, conditions or\nother facts with respect to any transaction between the parties hereto, including the status thereof, Creative Host will, and will direct its Associates\nto, provide Compass with prompt written notice (to the extent permitted by law) of such legal compulsion\n3.\nand its intent to disclose any Confidential Information of Compass, and shall delay disclosure, if and to the extent practicable and permitted by law,\nuntil Compass has had an opportunity to seek a protective order or other appropriate remedy or to waive compliance by Creative Host and/or its\nAssociates with the relevant provisions of this Agreement provided, that no such delay or waiver shall be required as to any disclosure that Creative\nHost is advised by its counsel that it is then required to make under applicable law. Creative Host also agrees, to the extent permitted by law, to\nprovide Compass, reasonably far in advance of making any such disclosure, with copies of any Confidential Information that it intends to disclose\n(and, if applicable, the text of the disclosure language itself) and to cooperate with Compass, at the expense of Compass, in order to seek to obtain a\nprotective order, if available, and to take any other legally available steps to limit such disclosure. In the event that a protective order or other remedy\nis not obtained in such a proceeding, or Compass fails to waive compliance with the relevant provisions of this Agreement, Creative Host agrees that\nit\nwill, and will cause its Associates to, disclose only that Confidential Information of Compass which its counsel advises (except that no advice of\ncounsel shall be required in the case of oral testimony where (X) it is impracticable to obtain such advice and (Y) counsel has advised the testifying\nwitness of the obligations imposed by this Section 4 prior to his or her testimony) is legally required to be disclosed and will exercise\nits\nbest\nefforts,\nand will cause its Associates to exercise their best efforts, at the request and expense of Compass, to cooperate with Compass to obtain reliable\nassurance that confidential treatment will be accorded the Confidential Information which is so disclosed.\n(c) Notwithstanding anything herein to the contrary, any party to this Agreement (and any Associate of any party to this Agreement) may\ndisclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind\n(including opinions or other tax analyses) that are provided to it relating to such tax treatment and tax structure; provided, however, that such\ndisclosure may not be made (i) until the earlier of (x) the date of the public announcement of discussions relating to the Transaction, if any, (y)\nthe\ndate of the public announcement of the Transaction, if any and (z) the date of the execution of an agreement to enter into the Transaction, if any and\n(ii)\nto the extent required to be kept confidential to comply with any applicable federal or state securities laws, provided, however, that neither party\n(nor its Associates) may disclose any other information that is not relevant to understanding the tax treatment and tax structure of the Transaction.\n5.\nReturn of Materials. Promptly upon request by the disclosing party, the receiving party will, and will cause its Associates\nto,\ndeliver\nto\nthe\ndisclosing party any written Confidential Information of the disclosing party and all copies or modifications thereof, except for that portion of the\nConfidential Information which consists of analyses, compilations, studies or other documents prepared by the receiving party or its Associates,\nwithout retaining any copy thereof. That portion of the Confidential Information or any modification thereof which consists of analyses,\ncompilations, studies or other documents prepared by the receiving party or its Associates and that is not returned to the other party shall be\ndestroyed and no copy thereof shall be retained and such receiving party shall certify in writing that such destruction has occurred. Notwithstanding\nthe foregoing, legal counsel to each of Compass and Creative Host may retain one copy of all Confidentia Information possessed by such legal\ncounsel for their records.\n4.\n6. No License Granted; Privileged Information. Nothing in this Agreement is intended to grant any rights to either party under any patent,\ncopyright, trade secret or other intellectual property right nor shall this Agreement grant either party any rights in or to the other party's Confidential\nInformation, except the limited right to review such Confidential Information solely for the purposes of determining whether to enter into the\nproposed business relationship between the parties. To the extent that any Confidential Information includes materials or other information that may\nbe subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidentiality\nInformation or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed\nthat the parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or\ndispute and that it is the parties' mutual desire, intention and understanding that the sharing of such materials and other information is not intended\nto,\nand shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such\nmaterials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly,\nall\nConfidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or\ndoctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the parties agree to take\nall measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n7. Nonpublicity. The existence and the terms of this Agreement, the transactions contemplated hereby, and the existence and nature of the\ndiscussions between the parties shall be maintained in confidence by the parties hereto and by their respective Associates and shall not be disclosed\nto any third party. Neither party hereto shall take, or cause to be taken, any action which might require the other party to make a public\nannouncement regarding the transactions contemplated under this Agreement. By executing and delivering this agreement each of Creative Host and\nCompass confirms to the other that it is aware and that its Associates have been advised that the federal and state securities laws prohibit any person\nwho possesses material, non-public information about a company from purchasing or selling securities of such company, so long as such information\nremains material and non-public.\n8.\nMutual\nNonsolicitation.\nCreative\nHost\nand\nCompass\neach\ncovenants\nand\nagrees\nthat\nfor\na\nperiod\nexpiring\none\n(1)\nyear\nafter\nthe\ndate\nof\nthis\nAgreement, the parties will not directly or indirectly solicit, induce, recruit or encourage any then-current employees of the other party that they\ncame in contact with in connection with their consideration of the Transaction to terminate their employment, or attempt to solicit, induce or recruit\nsuch specified employees of the other party. The publication of advertisements in newspapers and/or other publications of general circulation\n(including trade publications) shall not in any event be deemed a violation of any provision of this Agreement so long as such advertisements do not\nspecifically target any above-referenced employee of Creative Host or Compass.\n9.\nStandstill Provisions. During the one-year period commencing on the date of this letter agreement (the "Standstill Period"), except\npursuant to a Negotiated Transaction, neither Compass nor any of Compass's Associates will, in any manner, directly or indirectly:\n5.\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Creative Host or any securities\nof any subsidiary or other affiliate of Creative Host, (ii) any acquisition of any assets of Creative Host or any assets of any subsidiary or other\naffiliate of Creative Host, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation,\ndissolution or extraordinary transaction involving Creative Host or any subsidiary or other affiliate of Creative Host, or involving any securities\nor assets of Creative Host or any securities or assets of any subsidiary or other affiliate of Creative Host, or (iv) any "solicitation" of "proxies"\n(as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Creative\nHost;\n(b) form, join or participate in a "group" (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Creative Host;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Creative Host;\n(d) take any action that might require Creative Host to make a public announcement regarding any of the types of matters set forth in clause\n"(a)" of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clauses "(a)", "(b)", "(c)" or\n"(d)" of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clauses "(a)", "(b)", "(c)", "(d)" or "(e)" of this\nsentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) publicly request or propose that Creative Host or any of Creative Host's Associates amend, waive or consider the amendment or waiver\nof any provision set forth in this Section 9.\nNotwithstanding this Section 9, if (a)(i) the Board of Directors of Creative Host approves a transaction with any person and (ii) such transaction\nwould result in such person beneficially owning more than 50% of the outstanding voting securities of Creative Host or all or substantially all of\nCreative Host's assets, or (b) any person or "group" within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended,\nshall have commenced or publicly announced its intention to commence a tender or exchange offer for more than 50% of the outstanding voting\nsecurities of Creative Host, or any securities convertible into more than 50% of the outstanding voting securities of Creative Host, or any options,\nwarrants or other rights to acquire more than 50% of the outstanding voting securities of Creative Host, then Compass or any of Compass's\nAssociates shall not be prohibited thereafter from taking any of the actions described in this Section 9.\n6.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.\n10. Term. The covenants and commitments of either party in this Agreement shall survive any termination of discussions between the parties,\nand shall continue for a period of two (2) years following the date of this Agreement.\n11. Successors and Assigns; Waiver and Amendment. The provisions of this Agreement shall inure to the benefit of and be binding upon\nCreative Host, Compass and their respective affiliates, successors and assigns, including any successor to Creative Host or Compass of substantially\nall of Creative Host's or Compass' assets or business, by merger, consolidation, purchase of assets, purchase of stock or otherwise. No failure or\ndelay by either party or any of its Associates in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and\nno single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right,\npower\nor\nprivilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is\nvalidly executed on behalf of each of the parties and that refers specifically to the particular provision or provisions being waived or amended.\n12.\nDispute Resolution and Governing Law. Should any dispute between the parties arise under this Agreement, Compass and Creative Host,\nthrough appropriately senior persons, shall first meet and attempt to resolve the dispute in face-to-face negotiations. This meeting shall occur within\nthirty days of the time the dispute arises.\nIf no resolution is reached, Compass and Creative Host shall, within forty-five days of the first meeting, attempt to settle the dispute by formal\nmediation. If the parties cannot agree upon the appointment of a mediator and the place of the mediation within sixty days of the first meeting, the\nmediation shall be administered by the American Arbitration Association in Wilmington, Delaware with the parties splitting the cost of the mediator.\nIf no resolution is reached in mediation, the dispute shall be resolved by binding arbitration before a three-arbitrator panel, administered by the\nAmerican Arbitration Association.\nThis Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, and shall be\nbinding upon the parties hereto in the United States and worldwide.\nNotwithstanding the foregoing dispute resolution and governing law provisions, Compass and Creative Host shall each retain the right to seek\njudicial injunctive and other equitable relief, as provided in Section 13, where appropriate.\n13. Remedies; Severability. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party\nand the other party's business, and expressly agrees that monetary damages may be inadequate to compensate the other party for any breach by\neither\nparty of any covenants and agreements set forth herein. Accordingly, each party\n7.\nagrees and acknowledges that any such violation or threatened violation will cause irreparable injury to the other party and that, in addition to any\nother remedies that may be available, in law, in equity or otherwise, the other party shall be entitled to injunctive relief against the threatened breach\nof this Agreement or the continuation of any such breach, without the necessity of proving actual damages. Each party also agrees that it will not\nseek and agrees to waive any requirement for the securing or posting of a bond in connection with the aggrieved party's obtaining of equitable relief\npursuant to this Section 13. The equitable remedies referred to above will not be deemed to be the exclusive remedy for a breach of this Agreement,\nbut rather will be in addition to all other remedies available at law or in equity to the parties. The invalidity or unenforceability of any provision\nof\nthis Agreement shall not affect the validity or enforceability of any other provision of this Agreement.\n14.\nComplete Agreement. This Agreement constitutes the entire agreement between Compass and Creative Host regarding the subject\nmatter\nhereof and supersedes any prior agreement between the parties hereto, including the Confidential Disclosure Agreement dated August 21, 2003,\nregarding the subject matter hereof.\n15. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one and the same instrument.\n[SIGNATURE PAGE TO FOLLOW]\n8.\nIn witness whereof, the parties have executed this Agreement as of the day and year first above written.\nCompass Group USA, Inc.\nBy:\n/s/ /s/ C. C. Palmer Brown\nTitle: VP Corporate Development\nCreative Host Services, Inc.\nBy:\n/s/ Sayed Ali\nTitle: President\n[SIGNATURE PAGE TO MUTUAL NONDISCLOSURE AGREEMENT]	EX-99.D.5 15 g87249toexv99wdw5.htm EX-99.D.5\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement") is made as of December 2, 2003 by and between Compass Group\nUSA, Inc., a Delaware corporation (“Compass"), and Creative Host Services, Inc., a California corporation (“Creative Host").\n1. Purpose. Compass and Creative Host wish to explore a potential business combination (a “Transaction”) in connection with which each may\ndisclose its Confidential Information to the other. Each party is willing to furnish such information to the other only for the purpose of evaluating\nsuch business combination and only pursuant to the terms of this Agreement.\n2. Definitions. As used in this Agreement:\nA party’s “Associates” shall include such party’s subsidiaries and other affiliates and the respective directors, officers, employees, agents,\nrepresentatives, consultants, accountants, attorneys, and financial or other advisors of such party and its affiliates.\n“Confidential Information” means (i) any information that relates, directly or indirectly to the business or operations of the disclosing party or\nany predecessor entity, subsidiary or affiliate of the disclosing party (including but not limited to, information concerning technical data, know-how\nand other intellectual property rights, developments, inventions, processes, designs, drawings, engineering, product plans, products, services,\nemployees, suppliers, customers, markets, software, hardware configuration information, marketing, finances, projections, budgets, notes, analyses\nor studies and all tangible and intangible embodiments thereof of any kind whatsoever, whether conveyed in writing or orally) that is or has been\nconveyed or made available to the receiving party or any Associate of the receiving party by or on behalf of the disclosing party or any Associate of\nthe disclosing party, (ii) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is\nor has been prepared by or for the receiving party or any Associate of the receiving party and that contains, reflects or interprets or is based directly\nor indirectly upon any information of the type referred to in clause “(i)” of this sentence, (iii) the existence and terms of this Agreement, and the fact\nthat information of the type referred to in clause “(i)” of this sentence has been made available to the receiving party or any of its Associates, and\n(iv) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the receiving party and the\ndisclosing party, and the proposed terms of any such transaction. Notwithstanding the foregoing, Confidential Information shall include all\ninformation which due to its nature would cause a reasonable person to know that it is confidential and proprietary to the disclosing party.\nConfidential Information does not include information, technical data or know-how which: (i) is in the possession of the receiving party at the time\nof disclosure as shown by the receiving party’s files and records immediately prior to the time of disclosure; provided that the source of such\ninformation was not bound by a confidentiality agreement with respect to such information or was not otherwise in violation of any applicable legal\nrequirement with respect to the disclosure of such information; (ii) prior to or after the time of disclosure becomes part of the public knowledge or\nliterature, not as a result\n1.\nof any inaction or action of the receiving party or its Associates; (iii) is approved for release by the disclosing party in writing; or (iv) is\nindependently developed by the receiving party without knowledge of the disclosing party’s Confidential Information.\n“Person” shall mean any individual, corporation, limited liability company, partnership, or other business entity, tribunal or governmental\nauthority.\n3. Nondisclosure of Confidential Information.\n(a) Each of Compass and Creative Host agrees to maintain in trust and confidence the Confidential Information disclosed to it by the other\nparty or its Associates, and not to use such Confidential Information for its own use or for any purpose except solely to carry out discussions\nconcerning, and the undertaking of, any negotiated business combination between the parties approved by the board of directors of each of the\nparties (“Negotiated Transaction"). Neither party will disclose any Confidential Information of the other party to third parties except those\nAssociates of such party who are required to have the information in order to carry out the discussions conduct due diligence and other activities\nrelated to the contemplated Negotiated Transaction. Each party has informed or will inform those Associates of such party to whom Confidential\nInformation of the other party is disclosed or who have access to Confidential Information of the other party of the existence of this Agreement and\nsuch party’s obligations under this Agreement with respect to Confidential Information. A breach of the terms of this Agreement by any Associate of\na party shall be deemed a breach of this Agreement by such party. Each party agrees that it will take all reasonable measures to protect the secrecy of\nand avoid disclosure or use of Confidential Information of the other party in order to prevent it from falling into the public domain or the possession\nof Persons other than those Persons authorized hereunder to have any such information, which measures shall include the degree of care that either\nparty utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify promptly the other party in writing of any\nmisuse or misappropriation of such Confidential Information of the other party which may come to its attention.\n(b) Neither this Agreement nor any action taken prior to or in connection with this Agreement will give rise to any obligation on the part of\nCompass or Creative Host (i) to engage in any discussions or negotiations with the other party or with any of the other party’s Associates or (ii) to\npursue or enter into any transaction of any nature with the other party. Each party acknowledges that neither the other party nor any of its Associates\nmakes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, or that it has provided\nthe other party with all of the information such party has requested. Except as may be provided in a definitive written agreement with respect to a\nNegotiated Transaction between the parties, if any, (A) Creative Host agrees that neither Compass nor its Associates shall have any liability to\nCreative Host or any of its Associates resulting from the use of the Confidential Information by Creative Host or its Associates or their reliance\nthereon, and (B) Compass agrees that neither Creative Host nor its Associates shall have any liability to Compass or any of its Associates resulting\nfrom the use of the Confidential Information by Compass or its Associates or their reliance thereon. Each party agrees that unless and until a\ndefinitive written agreement with respect to a Negotiated Transaction has been executed and delivered (if ever), neither party is under any legal\nobligation or liability of any kind whatsoever\n2.\nwith respect to any transaction between the parties whatsoever (including, but not limited by virtue of any written or oral expressions of interest by\ntheir respective Associates), other than the parties’ obligations to each other under this Agreement.\n4. Mandatory Disclosure.\n(a) In the event that Compass or its Associates become legally compelled under the United States securities laws or as may be required by the\nSecurities and Exchange Commission or in a proceeding before a court, arbitrator or administrative agency to disclose (A) any portion of the\nConfidential Information of Creative Host, (B) that such Confidential Information has been made available to Compass or its Associates, (C) that\ndiscussions or negotiations between Creative Host, Compass and their respective Associates are taking place, or (D) any of the terms, conditions or\nother facts with respect to any transaction between the parties hereto, including the status thereof, Compass will, and will direct its Associates to,\nprovide Creative Host with prompt written notice (to the extent permitted by law) of such legal compulsion and its intent to disclose any\nConfidential Information of Creative Host, and shall delay disclosure, if and to the extent practicable and permitted by law, until Creative Host has\nhad an opportunity to seek a protective order or other appropriate remedy or to waive compliance by Compass and/or its Associates with the relevant\nprovisions of this Agreement; provided, that no such delay or waiver shall be required as to any disclosure that Compass is advised by its counsel\nthat it is then required to make under applicable law. Compass also agrees, to the extent permitted by law, to provide Creative Host, reasonably far in\nadvance of making any such disclosure, with copies of any Confidential Information that it intends to disclose (and, if applicable, the text of the\ndisclosure language itself) and to cooperate with Creative Host, at the expense of Creative Host, in order to seek to obtain a protective order, if\navailable, and to take any other legally available steps to limit such disclosure. In the event that a protective order or other remedy is not obtained in\nsuch a proceeding, or Creative Host fails to waive compliance with the relevant provisions of this Agreement, Compass agrees that it will, and will\ncause its Associates to, disclose only that Confidential Information of Creative Host which its counsel advises (except that no advice of counsel shall\nbe required in the case of oral testimony where (X) it is impracticable to obtain such advice and (Y) counsel has advised the testifying witness of the\nobligations imposed by this Section 4 prior to his or her testimony) is legally required to be disclosed and will exercise its best efforts, and will cause\nits Associates to exercise their best efforts, at the request and expense of Creative Host, to cooperate with Creative Host to obtain reliable assurance\nthat confidential treatment will be accorded the Confidential Information which is so disclosed.\n(b) In the event that Creative Host or its Associates become legally compelled under the United States securities laws or as may be required\nby the Securities and Exchange Commission or in a proceeding before a court, arbitrator or administrative agency to disclose (A) any portion of the\nConfidential Information of Compass, (B) that such Confidential Information has been made available to Creative Host or its Associates, (C) that\ndiscussions or negotiations between Creative Host, Compass and their respective Associates are taking place, or (D) any of the terms, conditions or\nother facts with respect to any transaction between the parties hereto, including the status thereof, Creative Host will, and will direct its Associates\nto, provide Compass with prompt written notice (to the extent permitted by law) of such legal compulsion\n3.\nand its intent to disclose any Confidential Information of Compass, and shall delay disclosure, if and to the extent practicable and permitted by law,\nuntil Compass has had an opportunity to seek a protective order or other appropriate remedy or to waive compliance by Creative Host and/or its\nAssociates with the relevant provisions of this Agreement provided, that no such delay or waiver shall be required as to any disclosure that Creative\nHost is advised by its counsel that it is then required to make under applicable law. Creative Host also agrees, to the extent permitted by law, to\nprovide Compass, reasonably far in advance of making any such disclosure, with copies of any Confidential Information that it intends to disclose\n(and, if applicable, the text of the disclosure language itself) and to cooperate with Compass, at the expense of Compass, in order to seek to obtain a\nprotective order, if available, and to take any other legally available steps to limit such disclosure. In the event that a protective order or other remedy\nis not obtained in such a proceeding, or Compass fails to waive compliance with the relevant provisions of this Agreement, Creative Host agrees that\nit will, and will cause its Associates to, disclose only that Confidential Information of Compass which its counsel advises (except that no advice of\ncounsel shall be required in the case of oral testimony where (X) it is impracticable to obtain such advice and (Y) counsel has advised the testifying\nwitness of the obligations imposed by this Section 4 prior to his or her testimony) is legally required to be disclosed and will exercise its best efforts,\nand will cause its Associates to exercise their best efforts, at the request and expense of Compass, to cooperate with Compass to obtain reliable\nassurance that confidential treatment will be accorded the Confidential Information which is so disclosed.\n(c) Notwithstanding anything herein to the contrary, any party to this Agreement (and any Associate of any party to this Agreement) may\ndisclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind\n(including opinions or other tax analyses) that are provided to it relating to such tax treatment and tax structure; provided, however, that such\ndisclosure may not be made (i) until the earlier of (x) the date of the public announcement of discussions relating to the Transaction, if any, (y) the\ndate of the public announcement of the Transaction, if any and (z) the date of the execution of an agreement to enter into the Transaction, if any and\n(ii) to the extent required to be kept confidential to comply with any applicable federal or state securities laws, provided, however, that neither party\n(nor its Associates) may disclose any other information that is not relevant to understanding the tax treatment and tax structure of the Transaction.\n5. Return of Materials. Promptly upon request by the disclosing party, the receiving party will, and will cause its Associates to, deliver to the\ndisclosing party any written Confidential Information of the disclosing party and all copies or modifications thereof, except for that portion of the\nConfidential Information which consists of analyses, compilations, studies or other documents prepared by the receiving party or its Associates,\nwithout retaining any copy thereof. That portion of the Confidential Information or any modification thereof which consists of analyses,\ncompilations, studies or other documents prepared by the receiving party or its Associates and that is not returned to the other party shall be\ndestroyed and no copy thereof shall be retained and such receiving party shall certify in writing that such destruction has occurred. Notwithstanding\nthe foregoing, legal counsel to each of Compass and Creative Host may retain one copy of all Confidential Information possessed by such legal\ncounsel for their records.\n4.\n6. No License Granted; Privileged Information. Nothing in this Agreement is intended to grant any rights to either party under any patent,\ncopyright, trade secret or other intellectual property right nor shall this Agreement grant either party any rights in or to the other party’s Confidential\nInformation, except the limited right to review such Confidential Information solely for the purposes of determining whether to enter into the\nproposed business relationship between the parties. To the extent that any Confidential Information includes materials or other information that may\nbe subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidentiality\nInformation or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed\nthat the parties have a commonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or\ndispute and that it is the parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended\nto, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such\nmaterials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all\nConfidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or\ndoctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the parties agree to take\nall measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n7. Nonpublicity. The existence and the terms of this Agreement, the transactions contemplated hereby, and the existence and nature of the\ndiscussions between the parties shall be maintained in confidence by the parties hereto and by their respective Associates and shall not be disclosed\nto any third party. Neither party hereto shall take, or cause to be taken, any action which might require the other party to make a public\nannouncement regarding the transactions contemplated under this Agreement. By executing and delivering this agreement each of Creative Host and\nCompass confirms to the other that it is aware and that its Associates have been advised that the federal and state securities laws prohibit any person\nwho possesses material, non-public information about a company from purchasing or selling securities of such company, so long as such information\nremains material and non-public.\n8. Mutual Nonsolicitation. Creative Host and Compass each covenants and agrees that for a period expiring one (1) year after the date of this\nAgreement, the parties will not directly or indirectly solicit, induce, recruit or encourage any then-current employees of the other party that they\ncame in contact with in connection with their consideration of the Transaction to terminate their employment, or attempt to solicit, induce or recruit\nsuch specified employees of the other party. The publication of advertisements in newspapers and/or other publications of general circulation\n(including trade publications) shall not in any event be deemed a violation of any provision of this Agreement so long as such advertisements do not\nspecifically target any above-referenced employee of Creative Host or Compass.\n9. Standstill Provisions. During the one-year period commencing on the date of this letter agreement (the “Standstill Period"), except\npursuant to a Negotiated Transaction, neither Compass nor any of Compass’s Associates will, in any manner, directly or indirectly:\n5.\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Creative Host or any securities\nof any subsidiary or other affiliate of Creative Host, (ii) any acquisition of any assets of Creative Host or any assets of any subsidiary or other\naffiliate of Creative Host, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation,\ndissolution or extraordinary transaction involving Creative Host or any subsidiary or other affiliate of Creative Host, or involving any securities\nor assets of Creative Host or any securities or assets of any subsidiary or other affiliate of Creative Host, or (iv) any “solicitation” of “proxies”\n(as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Creative\nHost;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Creative Host;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Creative Host;\n(d) take any action that might require Creative Host to make a public announcement regarding any of the types of matters set forth in clause\n“(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clauses “(a)”, “(b)”, “(c)” or\n“(d)” of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clauses “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this\nsentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) publicly request or propose that Creative Host or any of Creative Host’s Associates amend, waive or consider the amendment or waiver\nof any provision set forth in this Section 9.\nNotwithstanding this Section 9, if (a)(i) the Board of Directors of Creative Host approves a transaction with any person and (ii) such transaction\nwould result in such person beneficially owning more than 50% of the outstanding voting securities of Creative Host or all or substantially all of\nCreative Host’s assets, or (b) any person or “group” within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended,\nshall have commenced or publicly announced its intention to commence a tender or exchange offer for more than 50% of the outstanding voting\nsecurities of Creative Host, or any securities convertible into more than 50% of the outstanding voting securities of Creative Host, or any options,\nwarrants or other rights to acquire more than 50% of the outstanding voting securities of Creative Host, then Compass or any of Compass’s\nAssociates shall not be prohibited thereafter from taking any of the actions described in this Section 9.\n6.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.\n10. Term. The covenants and commitments of either party in this Agreement shall survive any termination of discussions between the parties,\nand shall continue for a period of two (2) years following the date of this Agreement.\n11. Successors and Assigns; Waiver and Amendment. The provisions of this Agreement shall inure to the benefit of and be binding upon\nCreative Host, Compass and their respective affiliates, successors and assigns, including any successor to Creative Host or Compass of substantially\nall of Creative Host’s or Compass’ assets or business, by merger, consolidation, purchase of assets, purchase of stock or otherwise. No failure or\ndelay by either party or any of its Associates in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and\nno single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right,\npower or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is\nvalidly executed on behalf of each of the parties and that refers specifically to the particular provision or provisions being waived or amended.\n12. Dispute Resolution and Governing Law. Should any dispute between the parties arise under this Agreement, Compass and Creative Host,\nthrough appropriately senior persons, shall first meet and attempt to resolve the dispute in face-to-face negotiations. This meeting shall occur within\nthirty days of the time the dispute arises.\nIf no resolution is reached, Compass and Creative Host shall, within forty-five days of the first meeting, attempt to settle the dispute by formal\nmediation. If the parties cannot agree upon the appointment of a mediator and the place of the mediation within sixty days of the first meeting, the\nmediation shall be administered by the American Arbitration Association in Wilmington, Delaware with the parties splitting the cost of the mediator.\nIf no resolution is reached in mediation, the dispute shall be resolved by binding arbitration before a three-arbitrator panel, administered by the\nAmerican Arbitration Association.\nThis Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, and shall be\nbinding upon the parties hereto in the United States and worldwide.\nNotwithstanding the foregoing dispute resolution and governing law provisions, Compass and Creative Host shall each retain the right to seek\njudicial injunctive and other equitable relief, as provided in Section 13, where appropriate.\n13. Remedies; Severability. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party\nand the other party’s business, and expressly agrees that monetary damages may be inadequate to compensate the other party for any breach by either\nparty of any covenants and agreements set forth herein. Accordingly, each party\n7.\nagrees and acknowledges that any such violation or threatened violation will cause irreparable injury to the other party and that, in addition to any\nother remedies that may be available, in law, in equity or otherwise, the other party shall be entitled to injunctive relief against the threatened breach\nof this Agreement or the continuation of any such breach, without the necessity of proving actual damages. Each party also agrees that it will not\nseek and agrees to waive any requirement for the securing or posting of a bond in connection with the aggrieved party’s obtaining of equitable relief\npursuant to this Section 13. The equitable remedies referred to above will not be deemed to be the exclusive remedy for a breach of this Agreement,\nbut rather will be in addition to all other remedies available at law or in equity to the parties. The invalidity or unenforceability of any provision of\nthis Agreement shall not affect the validity or enforceability of any other provision of this Agreement.\n14. Complete Agreement. This Agreement constitutes the entire agreement between Compass and Creative Host regarding the subject matter\nhereof and supersedes any prior agreement between the parties hereto, including the Confidential Disclosure Agreement dated August 21, 2003,\nregarding the subject matter hereof.\n15. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one and the same instrument.\n[SIGNATURE PAGE TO FOLLOW]\n8.\nIn witness whereof, the parties have executed this Agreement as of the day and year first above written.\nCompass Group USA, Inc.\nBy:\n/s/ C. Palmer Brown\nTitle: VP Corporate Development\nCreative Host Services, Inc.\nBy:\n/s/ Sayed Ali\nTitle: President\n[SIGNATURE PAGE TO MUTUAL NONDISCLOSURE AGREEMENT]
+9943c30609c49ce8ba0161c673e46cc6.pdf	jurisdiction party	EX-10 .47 19 b316817_ex10-47.txt STOCK PURCHASE AGREEMENT EXHIBIT D NON-COMPETITION AND NON -DISCLOSURE AGREEMENT AGREEMENT\n(this "Agreement"), made and entered into as of the ___ day of _________, 200 2, by and between COMMERCIAL CONSOLIDATORS CORP. , a c orporation\norganized under the laws of Alberta, Canada ("Purchaser "); AMERICAN WAY IMPORTING, INC. , a California corporation (the "Company"); and those\nindividuals who have executed this Agreement on the signature page under the designation "Stockholders" (individually, a "Stockholder" and collectively, the\n"Stockholders"); W I T N E S S E T H : WHEREAS, Purchaser has agreed to acquire from the Stockholders 100% of the shares of capital stock of the Company\npursuant to the terms of a stock purchase agreement dated January __, 2 002 (the "Purchase Agreement") among Purchaser, the Company, and the\nStockholders; and WHEREAS, by reason of their prior ownership of the capital stock of the Company and employment in the Company, each of the Stockholders\nhas detailed knowledge and possesses confidential information concerning the Company and the business and operations thereof, and WHEREAS, on the date\nhereof, the Company, (i) an Affiliate of Steven Javidzad, one of the Stockholders, is entering into separate consulting agreement (the "Consulting Agreement")\npursuant to which such Stockholders Affiliate will provide consulting services to the Company, and (ii) certain of the other Stockholders will continue to be\nemployed by the Company, and in connection with which such Stockholders will continue to have access to confidential and proprietary information relating to the\nbusiness of the Company; and WHEREAS, in order to induce Purchaser to consummate the transactions contemplated by the Purchase Agreement, and to\ninduce Purchaser to cause the Company to enter into the Consulting Agreement and to continue to employ certain of the other Stockholders, each of the\nStockholders has agreed, and Purchaser has required the Stockholders, to enter into this Agreement; NOW, THEREFORE , in consideration of the premises and\nthe mutual covenants and agreements contained herein, the parties hereby agree as follows: 1. Restrictive Covenants. (a) Each of the Stockholders do hereby\nacknowledge and agree that: (i) the business contacts, customers, suppliers, technology, know-how, trade secrets, marketing techniques and other aspects of the\nCompany have been of substantial value to the Company, and will hereafter provide Purchaser with substantial competitive advantage, (ii) such elements and\naspects of the Business are not generally known to the public or available through any source other than the Stockholders, and reasonable efforts have been\nmade to maintain the confidentiality thereof to the date hereof, (iii) they have detailed knowledge of and possesses confidential information concerning the\nCompany, and (iv) by reason of their duties and responsibilities pursuant to the Consulting Agreement and their continued employment with the Company, they\nwill become privy to confidential and proprietary information of the Company. 1 (b) Each of the Stockholders do hereby agree, for the benefit of Purchaser, the\nCompany and their respective subsidiaries, successors and assigns, that neither he nor she shall, directly or indirectly, for himself or herself or through or on\nbehalf of any other person or entity: (i) at any time from and after the date hereof, divulge, transmit or otherwise disclose or cause to be divulged, transmitted or\notherwise disclosed, any business contacts, client or customer lists, technology, know-how, trade secrets, marketing techniques, contracts or other confidential or\nproprietary information of or relating to the Company or its subsidiaries of whatever nature (provided, however, that for purposes hereof, information shall not be\nconsidered to be confidential or proprietary if (A) it is a matter of common knowledge or public record, (B) it is generally known throughout the industry, or (C)\nsuch Stockholder can demonstrate that such information was already known to the recipient thereof other than by reason of any breach of any obligation under\nthis Agreement or any other confidentiality or nondisclosure agreement); and/or (ii) at any time from the date hereof through and including February 28, 2006,\ninvest, carry on, engage or become involved, either as an owner, principal, agent, advisor, stockholder (excluding passive ownership of not more than 1% of the\noutstanding shares of a publicly held corporation if such ownership does not involve managerial or operational involvement or activity), manager, partner, joint\nventurer, participant or consultant, in any business enterprise (other than Purchaser, the Company and their subsidiaries, successors or assigns) which derives\n10% or more of their consolidated revenues from the business of purchasing, marketing, distributing and selling cellular telephones, pagers and other\ntelecommunications devices (the "Business"). (iii) Notwithstanding the foregoing provisions of paragraph 1(b)(ii), it shall not be a violation of paragraph 1(b)(ii) for\nany of the Stockholders to own an equity interest in Wireless Lines Corporation or Platinum Wireless Corporation , both Affiliates of the Stockholders (collectively,\n"Wireless Lines"), if and for so long as Wireless Lines or any subsidiary or Affiliate of such corporations shall not: (A) sell any products, on a wholesale basis,\nwhich are carried and sold by the Company on the Closing Date, other than not more than 5,000 cellular phones per year which may be sold on a bulk basis by\nWireless Lines; or (B) otherwise engage in direct competition with the Business now or hereafter conducted by the Company. (c) Unless otherwise separately\ndefined in this Agreement, when used herein, all capitalized terms shall have the same meaning as is defined in the Purchase Agreement. 2. Remedies. The\nparties hereby acknowledge and agree that any breach by any of the Stockholders or any of their respective Affiliates, directly or indirectly, of any of the foregoing\nrestrictive covenants will cause Purchaser and the Company irreparable injury for which there is no adequate remedy at law. Accordingly, the Stockholders do\nhereby expressly agree that, in the event that any of the Stockholders or any of their respective Affiliates shall commit any such breach or any threatened breach\nhereunder, directly or indirectly, Purchaser and/or the Company shall be entitled, in addition to any and all other remedies available at law, to seek and obtain,\nwithout requirement of posting any bond or other security, injunctive and/or other equitable relief to require specific performance of or prevent, restrain and/or\nenjoin the breaching party or parties under the provisions of this Agreement. 2 3 . Expenses. In the event of any dispute under or arising out of this Agreement, the\nprevailing party in such dispute shall be entitled to recover from the non-prevailing party, in addition to any damages and/or other relief that may be awarded, its\nreasonable costs and expenses (including reasonable attorneys' fees) incurred in connection with prosecuting or defending the subject dispute. 4 . Benefits and\nObligations. This Agreement shall be binding upon and inure to the benefit of and shall be enforceable by Purchaser and/or the Company and their respective\naffiliates, successors and assigns, and the Stockholders and their respective affiliates, successors and assigns; provided, however , that neither Russell's nor\nSpeciale's obligations contained herein may not be delegated or assigned. 5. Governing Law. This Agreement shall be governed by and construed in accordance\nwith the laws of the State of California, United States of America. 6. Resolution of Certain Disputes. Except for any claim or proceeding seeking to assert or obtain\nequitable remedies hereunder (including, without limitation, injunctive relief and/or specific enforcement), which claim or proceeding may be asserted or brought in\nany court of competent jurisdiction sitting in California (as to which courts, the parties hereby consent to the jurisdiction thereof), any dispute involving the\ninterpretation or application of this Agreement shall be resolved in accordance with the procedures specified in the Purchase Agreement. 7. Severability. It is\nacknowledged, understood and agreed that the restrictions contained in this Agreement (a) are made for good, valuable and adequate consideration received and\nto be received by each of the Stockholders, (b) are reasonable and necessary, in terms of the time, geographic scope and nature of the restrictions, for the\nprotection of Purchaser and/or the Company and their respective Affiliates and their good will, and (c) will not pose any undue hardship on any Stockholder or\nmaterially impair his or her ability to support himself. It is intended that said provisions be fully severable, and in the event that any of the foregoing restrictions, or\nany portion of the foregoing restrictions, shall be deemed contrary to law, invalid or unenforceable in any respect by any court or other tribunal of competent\njurisdiction, then such restrictions shall be deemed to be amended, modified and reduced in scope and effect, only to that extent necessary to render same valid\nand enforceable, and all other restrictions shall be unaffected and shall remain in full force and effect. 8. Waiver, Amendment or Modification. Neither this\nAgreement nor any of the terms and conditions hereof may be waived, amended or modified except by means of a written instrument duly executed by the party\nto be charged therewith. No waiver of any provision, performance or default hereunder in any instance shall be construed as a continuing waiver of such\nprovision, performance or default, or a waiver of any other provision, performance or default, or of any future performance or default. 3 9. Notices. Any notice,\nrequest, demand or other communication required or permitted under this Agreement shall be in writing and shall be given in the manner provided in the\nPurchase Agreement. 10. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of\nwhich shall together constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set\nforth above. COMMERCIAL CONSOLIDATORS CORP . By:______________________________ AMERICAN WAY IMPORTING, INC.\nBy:______________________________ STOCKHOLDERS: _________________________ STEVEN JAVIDZAD _________________________ SHAWN\nJAVIDZAD _________________________ JEFF JAVIDZAD _________________________ BOBBY MELAMED 4\n_________________________\nBAZE\nMELAMED _________________________ _________________________ _________________________ 5	EX-10.47 19 b316817_ex10-47.txtSTOCK PURCHASE AGREEMENT EXHIBIT D NON-COMPETITION AND NON-DISCLOSURE AGREEMENT AGREEMENT\n(this "Agreement"), made and entered into as ofthe ___ day of _________ , 2002, by and between COMME RC IAL CONSOLIDATO RS CORP ., a corporation\norganized underthe laws ofAlberta, Canada ("Purchaser "); AMERICAN WAY IM PO RTING, INC., a California corporation (the "Company"); and those\nindividuals who have executed this Agreementon Ihe signature page under Ihe designation "Stockholders" (individually, a "Stockholder" and collectively, Ihe\n"Stockholders"); W IT N E S S E T H : WHEREAS, Purchaser has agreed to acquire from the Stockholders 100% of the shares ofcapital stock oflhe Company\npursuantto Ihe terms of a stock purchase agreementdatedJ anuary __, 2002 (the "P urchase Agreement") among Purchaser, the Company, and the\nStockholders; and WHEREAS, by reason of Iheir prior ownership ofthe capital stock of Ihe Company and employment in the Company, each ofthe Stockholders\nhas detailed knowledge and possesses confidential information concerning Ihe Company and the business and operations Ihereof, and WHE REAS, on the date\nhereof, Ihe Company, (i) an Affiliate of Steven J avidzad, one ofthe Stockholders, is entering into separate consulting agreement (the "Consulting Agreement")\npursuantto which such Stockholders Affiliate will provide consulting services to the Company, and (ii) certain of Ihe other Stockholders will continue to be\nemployed by Ihe Company, and in connection with which such Stockholders will continue to have access to confidential and proprietary information relating to Ihe\nbusiness of Ihe Company; and WHEREAS, in order to induce Purchaser to consummate the transactions contemplated by Ihe Purchase Agreement, and to\ninduce Purchaser to cause the Company to enter into Ihe Consulting Agreement and to continue to employ certain of the other Stockholders, each of Ihe\nStockholders has agreed, and Purchaser has required the Stockholders, to enter into this Agreement; NOW, THE RE FORE, in consideration of Ihe premises and\nIhe mutual covenants and agreements contained herein, the parties hereby agree as follows: 1. Restrictive CovenanIs. (a) Each ofthe Stockholders do hereby\nacknowledge and agree that: (i) the business contacts, customers, suppliers, technology, know-how, trade secreIs, marketing techniques and other aspects ofthe\nCompany have been of substantial value to Ihe Company, and will hereafter provide Purchaser with substantial competitive advantage, (ii) such elemenIs and\naspects ofthe Business are notgenerally known to Ihe public or available Ihrough any source other Ihan the Stockholders, and reasonable efforts have been\nmade to maintain the confidentiality thereofto the date hereof, (iii) they have detailed knowledge of and possesses confidential information concerning Ihe\nCompany, and (iv) by reason of their duties and responsibilities pursuant to the Consulting Agreement and their continued employment with the Company, they\nwill become privy to confidential and proprietary information of Ihe Company. 1 (b) Each of the Stockholders do hereby agree, for the benefit of Purchaser, the\nCompany and their respective subsidiaries, successors and assigns, that neither he nor she shall, direcij or indirectly, for himself or herself or through or on\nbehalf of any olher person or entity: (i) at any time from and after the date hereof, divulge, transmitor otherwise disclose or cause to be divulged, transmitted or\nothenNise disclosed, any business contacts, clientor customer lists, technology, know-how, trade secrets, marketing techniques, contracts or other confidential or\nproprietary information of or relating to the Company or its subsidiaries of whatever nature (provided, however, thatfor purposes hereof, information shall not be\nconsidered to be confidential or proprietary if (A) it is a matter ofcommon knowledge or public record, (B) it is generally known Ihroughout Ihe industry, or (C)\nsuch Stockholder can demonstrate Ihatsuch information was already known to the recipient thereofolher than by reason of any breach of any obligation under\nIhis Agreement or any olher confidentiality or nondisclosure agreement); and/or (ii) at any time from Ihe date hereof through and including February 28, 2006,\ninvest, carry on, engage or become involved, eilher as an owner, principal, agent, advisor, stockholder (excluding passive ownership of not more than 1% ofthe\nouIstanding shares of a publicly held corporation ifsuch ownership does not involve managerial or operational involvementor activity), manager, partner, joint\nventurer, participant or consultant, in any business enterprise (other than Purchaser, the Company and Iheir subsidiaries, successors or assigns) which derives\n10% or more oftheir consolidated revenues from the business of purchasing, marketing, distributing and selling cellular telephones, pagers and other\ntelecommunications devices (Ihe "Business"). (iii) Notwithstanding Ihe foregoing provisions ofparagraph 1(b)(ii), itshall notbe a violation of paragraph 1(b)(ii) for\nany of Ihe Stockholders to own an equity interest in Wireless Lines Corporation or Platinum Wireless Corporation, both Affiliates of Ihe Stockholders (collectively,\n"Wireless Lines"), if and for so long as Wireless Lines or any subsidiary or Affiliate ofsuch corporations shall not: (A) sell any products, on a wholesale basis,\nwhich are carried and sold by the Company on the Closing Date, olher than not more Ihan 5,000 cellular phones per year which may be sold on a bulk basis by\nWireless Lines; or (B) othenNise engage in direct competition wilh the Business now or hereafter conducted by Ihe Company. (c) Unless olhenNise separately\ndefined in this Agreement, when used herein, all capitalized terms shall have the same meaning as is defined in the Purchase Agreement. 2. Remedies. The\nparties hereby acknowledge and agree that any breach by any of Ihe Stockholders or any oftheir respective Affiliates, directly or indirectly, of any of Ihe foregoing\nrestrictive covenants will cause Purchaser and the Company irreparable injury for which there is no adequate remedy at law. Accordingly, the Stockholders do\nhereby expressly agree that, in Ihe eventthat any of Ihe Stockholders or any of their respective Affiliates shall commit any such breach or any threatened breach\nhereunder, directly or indirecij, Purchaser and/or Ihe Company shall be entitled, in addition to any and all other remedies available at law, to seek and obtain,\nwithout requirement of posting any bond or other security, injunctive and/or other equitable relief to require specific performance ofor prevent, restrain and/or\nenjoin the breaching party or parties under Ihe provisions of Ihis Agreement. 2 3. Expenses. In the event of any dispute under or arising out of Ihis Agreement, the\nprevailing party in such dispute shall be entitled to recover from the non-prevailing party, in addition to any damages and/or olher relief Ihat may be awarded, its\nreasonable cosIs and expenses (including reasonable attorneys' fees) incurred in connection with prosecuting or defending the subjectdispute. 4. Benefits and\nObligations. This Agreement shall be binding upon and inure to the benefit of and shall be enforceable by Purchaser and/or the Company and their respective\naffiliates, successors and assigns, and Ihe Stockholders and their respective affiliates, successors and assigns; provided, however , that neither Russell's nor\nSpeciale's obligations contained herein may not be delegated or assigned. 5. Governing Law. This Agreementshall be governed by and construed in accordance\nwith the laws ofthe State of California, United States ofAmerica. 6. Resolution of Certain Disputes. Except for any claim or proceeding seeking to assert or obtain\nequitable remedies hereunder (including, without limitation, injunctive relief and/or specific enforcement), which claim or proceeding may be asserted or brought in\nany court of competentjurisdiction sitting in California (as to which courIs, the parties hereby consent to the jurisdiction Ihereof), any dispute involving the\ninterpretation or application ofthis Agreementshall be resolved in accordance with Ihe procedures specified in Ihe Purchase Agreement. 7. Severability. It is\nacknowledged, understood and agreed Ihat Ihe restrictions contained in Ihis Agreement (a) are made for good, valuable and adequate consideration received and\nto be received by each of Ihe Stockholders, (b) are reasonable and necessary, in terms ofthe time, geographic scope and nature of Ihe restrictions, for the\nprotection of Purchaser and/or Ihe Company and their respective Affiliates and their good will, and (c) will not pose any undue hardship on any Stockholder or\nmaterially impair his or her ability to support himself. It is intended thatsaid provisions be fully severable, and in Ihe eventthat any of Ihe foregoing restrictions, or\nany portion of Ihe foregoing restrictions, shall be deemed contrary to law, invalid or unenforceable in any respect by any court or other tribunal of competent\njurisdiction, Ihen such restrictions shall be deemed to be amended, modified and reduced in scope and effect, only to thatextent necessary to render same valid\nand enforceable, and all other restrictions shall be unaffected and shall remain in full force and effect. 8. Waiver, Amendmentor Modification. Neither this\nAgreement nor any ofthe terms and conditions hereof may be waived, amended or modified except by means of a written instrumentduly executed by Ihe party\nto be charged Iherewith. No waiver of any provision, performance or default hereunder in any instance shall be construed as a continuing waiver of such\nprovision, performance or default, or a waiver of any olher provision, performance or default, or of any future performance or default. 3 9. Notices. Any notice,\nrequest, demand or olher communication required or permitted under this Agreementshall be in writing and shall be given in the manner provided in the\nPurchase Agreement. 10. Counterparts. This Agreement may be executed in any number ofcounterparIs, each ofwhich shall be deemed an original, but all of\nwhich shall together constitute one and Ihe same instrument. IN WITN ESS WHE REOF, the parties hereto have executed this Agreement as of the date firstset\nforth above. COMMERCIAL CONSOLIDATORS CORP. By: AMERICAN WAY IMPORTING, INC.\nBy: STOCKHOLDERS: STEVENJAVIDZAD SHAWN\nJEFFJAVIDZAD BOBBY MELAMED4 BAZE\nMELAMED	EX-10.47 19 STOCK PURCHASE AGREEMENT EXHIBIT D NON-COMPETITION AND NON-DISCLOSURE AGREEMENT AGREEMENT\n(this "Agreement"), made and entered into as of the\nday of\n2002, by and between COMMERCIAL CONSOLIDATORS CORP. a corporation\norganized\nunder the laws of Alberta, Canada Purchaser AMERICAN WAY IMPORTING, INC., a California corporation (the "Company"); and those\nindividuals who have executed this Agreement on the signature page under the designation "Stockholders" (individually, a "Stockholder" and collectively, the\n"Stockholders") W H WHEREAS, Purchaser has agreed to acquire from the Stockholders 100% of the shares of capital stock of the Company\npursuant to the terms of a stock purchase agreement dated J anuary 2002 (the "Purchase Agreement") among Purchaser, the Company, and the\nStockholders; and WHEREAS, by reason of their prior ownership of the capita stock of the Company and employment in the Company, each of the Stockholders\nhas detailed knowledge and possesses confidentia information concerning the Company and the business and operations thereof, and WHEREAS, on the date\nhereof, the Company, (i) an Affiliate of Steven J avidzad, one of the Stockholders, is entering into separate consulting agreement (the Consulting Agreement")\npursuant to which such Stockholders Affiliate will provide consulting services to the Company, and (ii) certain of the other Stockholders will continue to be\nemployed by the Company, and in connection with which such Stockholders will continue to have access to confidential and proprietary information relating to the\nbusiness of the Company; and WHEREAS, in order to induce Purchaser to consummate the transactions contemplated by the Purchase Agreement, and to\ninduce Purchaser to cause the Company to enter into the Consulting Agreement and to continue to employ certain of the other Stockholders, each of the\nStockholders has agreed, and Purchaser has required the Stockholders, to enter into this Agreement; NOW, THEREFORE, in consideration of the premises and\nthe mutual covenants and agreements contained herein, the parties hereby agree as follows: 1. estrictive Covenants (a) ach of the Stockholders do hereby\nacknowledge and agree that: (i) the business contacts, customers, suppliers, technology, know-how, trade secrets, marketing techniques and other aspects of the\nCompany have been of substantial value to the Company, and will hereafter provide Purchaser with substantial competitive advantage, (ii) such elements and\naspects of the Business are not generally known to the public or available through any source other than the Stockholders, and reasonable efforts have been\nmade to maintain the confidentiality thereof to the date hereof, (iii) they have detailed knowledge of and possesses confidential information concerning the\nCompany, and (iv) by reason of their duties and responsibilities pursuant to the Consulting Agreement and their continued employment with the Company,\nthey\nwill become privy to confidential and proprietary information of the Company. 1 (b) Each of the Stockholders do hereby agree, for the benefit of Purchaser, the\nCompany and their respective subsidiaries, successors and assigns, that neither he nor she shall, directly or indirectly, for himself or herself or through or on\nbehalf of any other person or entity: (i) at any time from and after the date hereof, divulge, transmit or otherwise disclose or cause to be divulged, transmitted or\notherwise disclosed, any business contacts, client or customer lists, technology, know-how, trade secrets, marketing techniques, contracts or other confidential\nor\nproprietary information of or relating to the Company or its subsidiaries of whatever nature (provided, however, that for purposes hereof, information shall not be\nconsidered to be confidential or proprietary if (A it is a matter of common knowledge or public record, (B) it is generally known throughout the industry, or (C)\nsuch Stockholder can demonstrate that such information was already known to the recipient thereof other than by reason of any breach of any obligation\nunder\nthis Agreement or any other confidentiality or nondisclosure agreement); and/or (ii) at any time from the date hereof through and including February 28, 2006,\ninvest, carry on, engage or become involved, either as an owner, principal, agent, advisor, stockholder (excluding passive ownership of not more than 1% of the\noutstanding shares of a publicly held corporation if such ownership does not involve managerial or operational involvement or activity), manager, partner, joint\nventurer, participant or consultant, in any business enterprise (other than urchaser, the Company and their subsidiaries, successors or assigns) which derives\n10% or more of their consolidated revenues from the business of purchasing, marketing, distributing and selling cellular telephones, pagers and other\ntelecommunications devices (the "Business"). (iii) Notwithstanding the foregoing provisions of paragraph 1(b)(ii), it shall not be a violation of paragraph 1(b)(ii) for\nany of the Stockholders to own an equity interest in Wireless Lines Corporation or Platinum Wireless Corporation both Affiliates of the Stockholders (collectively,\n"Wireless Lines"), if and for so long as Wireless Lines or any subsidiary or Affiliate of such corporations shall not: (A) sell any products, on a wholesale basis,\nwhich are carried and sold by the Company on the Closing Date, other than not more than 5,000 cellular phones per year which may be sold on a bulk basis by\nWireless Lines; or (B) otherwise engage in direct competition with the Business now or hereafter conducted by the Company. (c) Unless otherwise separately\ndefined in this Agreement, when used herein, all capitalized terms shal have the same meaning as is defined in the Purchase Agreement. 2. Remedies. The\nparties hereby acknowledge and agree that any breach by any of the Stockholders or any of their respective Affiliates, directly or indirectly, of any of the foregoing\nrestrictive covenants will cause Purchaser and the Company irreparable injury for which there is no adequate remedy at law. Accordingly, the Stockholders do\nhereby expressly agree that, in the event that any of the Stockholders or any of their respective Affiliates shall commit any such breach or any threatened breach\nhereunder, directly or indirectly, Purchaser and/or the Company shall be entitled, in addition to any and all other remedies available at law, to seek and obtain,\nwithout requirement of posting any bond or other security, injunctive and/or other equitable relief to require specific performance of or prevent, restrain and/or\nenjoin the breaching party or parties under the provisions of this Agreement. 2 3. xpenses. In the event of any dispute under or arising out of this Agreement, the\nprevailing party in such dispute shall be entitled to recover from the non-prevailing party, in addition to any damages and/or other relief that may be awarded, its\nreasonable costs and expenses (including reasonable attorneys' fees) incurred in connection with prosecuting or defending the subject dispute 4. Benefits and\nObligations. This Agreement shall be binding upon and inure to the benefit of and shall be enforceable by Purchaser and/or the Company and their respective\naffiliates, successors and assigns, and the Stockholders and their respective affiliates, successors and assigns; provided, however that neither Russell's nor\npeciale's obligations contained herein may not be delegated or assigned. 5. Governing Law. This Agreement shall be governed by and construed in accordance\nwith the laws of the State of California, United States of America. 6. Resolution of Certain Disputes. Except for any claim or proceeding seeking to assert or obtain\nequitable remedies hereunder (including, without limitation, injunctive relief and/or specific enforcement), which claim or proceeding may be asserted or brought\nin\nany court of competent jurisdiction sitting in California (as to which courts, the parties hereby consent to the jurisdiction thereof), any dispute involving the\ninterpretation or application of this Agreement shall be resolved in accordance with the procedures specified in the Purchase Agreement. 7. Severability. It is\nacknowledged, understood and agreed that the restrictions contained in this Agreement (a) are made for good, valuable and adequate consideration received and\nto be received by each of the Stockholders, (b) are reasonable and necessary, in terms of the time, geographic scope and nature of the restrictions, for\nthe\nprotection of Purchaser and/or the Company and their respective Affiliates and their good will, and (c) will not pose any undue hardship on any Stockholder or\nmaterially impair his or her ability to support himself. It is intended that said provisions be fully severable, and in the event that any of the foregoing restrictions,\nor\nany portion of the foregoing restrictions, shall be deemed contrary to law, invalid or unenforceable in any respect by any court or other tribunal of competent\njurisdiction, then such restrictions shall be deemed to be amended, modified and reduced in scope and effect, only to that extent necessary to render same valid\nand enforceable, and all other restrictions shall be unaffected and shall remain in full force and effect. 8. Waiver, Amendment or Modification. Neither this\nAgreement nor any of the terms and conditions hereof may be waived, amended or modified except by means of a written instrument duly executed by the party\nto be charged therewith. No waiver of any provision, performance or default hereunder in any instance shall be construed as a continuing waiver of such\nprovision, performance or default, or a waiver of any other provision, performance or default, or of any future performance or default. 3 9. Notices. Any notice,\nrequest, demand or other communication required or permitted under this Agreement shall be in writing and shal be given in the manner provided in the\nPurchase Agreement. 10. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of\nwhich shall together constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set\nforth above. COMMERCIAL CONSOLIDATORS CORP. By\nAMERICAN WAY IMPORTING, INC.\nBy\nSTOCKHOLDERS\nSTEVEN AVIDZAD\nSHAWN\nAVIDZAD\nEFF AVIDZAD\nBOBBY MELAMED 4\nBAZE\nLO	EX-10 .47 19 b316817_ex10-47.txt STOCK PURCHASE AGREEMENT EXHIBIT D NON-COMPETITION AND NON -DISCLOSURE AGREEMENT AGREEMENT\n(this "Agreement"), made and entered into as of the ___ day of _________, 200 2, by and between COMMERCIAL CONSOLIDATORS CORP. , a c orporation\norganized under the laws of Alberta, Canada ("Purchaser "); AMERICAN WAY IMPORTING, INC. , a California corporation (the "Company"); and those\nindividuals who have executed this Agreement on the signature page under the designation "Stockholders" (individually, a "Stockholder" and collectively, the\n"Stockholders"); W I T N E S S E T H : WHEREAS, Purchaser has agreed to acquire from the Stockholders 100% of the shares of capital stock of the Company\npursuant to the terms of a stock purchase agreement dated January __, 2 002 (the "Purchase Agreement") among Purchaser, the Company, and the\nStockholders; and WHEREAS, by reason of their prior ownership of the capital stock of the Company and employment in the Company, each of the Stockholders\nhas detailed knowledge and possesses confidential information concerning the Company and the business and operations thereof, and WHEREAS, on the date\nhereof, the Company, (i) an Affiliate of Steven Javidzad, one of the Stockholders, is entering into separate consulting agreement (the "Consulting Agreement")\npursuant to which such Stockholders Affiliate will provide consulting services to the Company, and (ii) certain of the other Stockholders will continue to be\nemployed by the Company, and in connection with which such Stockholders will continue to have access to confidential and proprietary information relating to the\nbusiness of the Company; and WHEREAS, in order to induce Purchaser to consummate the transactions contemplated by the Purchase Agreement, and to\ninduce Purchaser to cause the Company to enter into the Consulting Agreement and to continue to employ certain of the other Stockholders, each of the\nStockholders has agreed, and Purchaser has required the Stockholders, to enter into this Agreement; NOW, THEREFORE , in consideration of the premises and\nthe mutual covenants and agreements contained herein, the parties hereby agree as follows: 1. Restrictive Covenants. (a) Each of the Stockholders do hereby\nacknowledge and agree that: (i) the business contacts, customers, suppliers, technology, know-how, trade secrets, marketing techniques and other aspects of the\nCompany have been of substantial value to the Company, and will hereafter provide Purchaser with substantial competitive advantage, (ii) such elements and\naspects of the Business are not generally known to the public or available through any source other than the Stockholders, and reasonable efforts have been\nmade to maintain the confidentiality thereof to the date hereof, (iii) they have detailed knowledge of and possesses confidential information concerning the\nCompany, and (iv) by reason of their duties and responsibilities pursuant to the Consulting Agreement and their continued employment with the Company, they\nwill become privy to confidential and proprietary information of the Company. 1 (b) Each of the Stockholders do hereby agree, for the benefit of Purchaser, the\nCompany and their respective subsidiaries, successors and assigns, that neither he nor she shall, directly or indirectly, for himself or herself or through or on\nbehalf of any other person or entity: (i) at any time from and after the date hereof, divulge, transmit or otherwise disclose or cause to be divulged, transmitted or\notherwise disclosed, any business contacts, client or customer lists, technology, know-how, trade secrets, marketing techniques, contracts or other confidential or\nproprietary information of or relating to the Company or its subsidiaries of whatever nature (provided, however, that for purposes hereof, information shall not be\nconsidered to be confidential or proprietary if (A) it is a matter of common knowledge or public record, (B) it is generally known throughout the industry, or (C)\nsuch Stockholder can demonstrate that such information was already known to the recipient thereof other than by reason of any breach of any obligation under\nthis Agreement or any other confidentiality or nondisclosure agreement); and/or (ii) at any time from the date hereof through and including February 28, 2006,\ninvest, carry on, engage or become involved, either as an owner, principal, agent, advisor, stockholder (excluding passive ownership of not more than 1% of the\noutstanding shares of a publicly held corporation if such ownership does not involve managerial or operational involvement or activity), manager, partner, joint\nventurer, participant or consultant, in any business enterprise (other than Purchaser, the Company and their subsidiaries, successors or assigns) which derives\n10% or more of their consolidated revenues from the business of purchasing, marketing, distributing and selling cellular telephones, pagers and other\ntelecommunications devices (the "Business"). (iii) Notwithstanding the foregoing provisions of paragraph 1(b)(ii), it shall not be a violation of paragraph 1(b)(ii) for\nany of the Stockholders to own an equity interest in Wireless Lines Corporation or Platinum Wireless Corporation , both Affiliates of the Stockholders (collectively,\n"Wireless Lines"), if and for so long as Wireless Lines or any subsidiary or Affiliate of such corporations shall not: (A) sell any products, on a wholesale basis,\nwhich are carried and sold by the Company on the Closing Date, other than not more than 5,000 cellular phones per year which may be sold on a bulk basis by\nWireless Lines; or (B) otherwise engage in direct competition with the Business now or hereafter conducted by the Company. (c) Unless otherwise separately\ndefined in this Agreement, when used herein, all capitalized terms shall have the same meaning as is defined in the Purchase Agreement. 2. Remedies. The\nparties hereby acknowledge and agree that any breach by any of the Stockholders or any of their respective Affiliates, directly or indirectly, of any of the foregoing\nrestrictive covenants will cause Purchaser and the Company irreparable injury for which there is no adequate remedy at law. Accordingly, the Stockholders do\nhereby expressly agree that, in the event that any of the Stockholders or any of their respective Affiliates shall commit any such breach or any threatened breach\nhereunder, directly or indirectly, Purchaser and/or the Company shall be entitled, in addition to any and all other remedies available at law, to seek and obtain,\nwithout requirement of posting any bond or other security, injunctive and/or other equitable relief to require specific performance of or prevent, restrain and/or\nenjoin the breaching party or parties under the provisions of this Agreement. 2 3 . Expenses. In the event of any dispute under or arising out of this Agreement, the\nprevailing party in such dispute shall be entitled to recover from the non-prevailing party, in addition to any damages and/or other relief that may be awarded, its\nreasonable costs and expenses (including reasonable attorneys' fees) incurred in connection with prosecuting or defending the subject dispute. 4 . Benefits and\nObligations. This Agreement shall be binding upon and inure to the benefit of and shall be enforceable by Purchaser and/or the Company and their respective\naffiliates, successors and assigns, and the Stockholders and their respective affiliates, successors and assigns; provided, however , that neither Russell's nor\nSpeciale's obligations contained herein may not be delegated or assigned. 5. Governing Law. This Agreement shall be governed by and construed in accordance\nwith the laws of the State of California, United States of America. 6. Resolution of Certain Disputes. Except for any claim or proceeding seeking to assert or obtain\nequitable remedies hereunder (including, without limitation, injunctive relief and/or specific enforcement), which claim or proceeding may be asserted or brought in\nany court of competent jurisdiction sitting in California (as to which courts, the parties hereby consent to the jurisdiction thereof), any dispute involving the\ninterpretation or application of this Agreement shall be resolved in accordance with the procedures specified in the Purchase Agreement. 7. Severability. It is\nacknowledged, understood and agreed that the restrictions contained in this Agreement (a) are made for good, valuable and adequate consideration received and\nto be received by each of the Stockholders, (b) are reasonable and necessary, in terms of the time, geographic scope and nature of the restrictions, for the\nprotection of Purchaser and/or the Company and their respective Affiliates and their good will, and (c) will not pose any undue hardship on any Stockholder or\nmaterially impair his or her ability to support himself. It is intended that said provisions be fully severable, and in the event that any of the foregoing restrictions, or\nany portion of the foregoing restrictions, shall be deemed contrary to law, invalid or unenforceable in any respect by any court or other tribunal of competent\njurisdiction, then such restrictions shall be deemed to be amended, modified and reduced in scope and effect, only to that extent necessary to render same valid\nand enforceable, and all other restrictions shall be unaffected and shall remain in full force and effect. 8. Waiver, Amendment or Modification. Neither this\nAgreement nor any of the terms and conditions hereof may be waived, amended or modified except by means of a written instrument duly executed by the party\nto be charged therewith. No waiver of any provision, performance or default hereunder in any instance shall be construed as a continuing waiver of such\nprovision, performance or default, or a waiver of any other provision, performance or default, or of any future performance or default. 3 9. Notices. Any notice,\nrequest, demand or other communication required or permitted under this Agreement shall be in writing and shall be given in the manner provided in the\nPurchase Agreement. 10. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of\nwhich shall together constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set\nforth above. COMMERCIAL CONSOLIDATORS CORP . By:______________________________ AMERICAN WAY IMPORTING, INC.\nBy:______________________________ STOCKHOLDERS: _________________________ STEVEN JAVIDZAD _________________________ SHAWN\nJAVIDZAD _________________________ JEFF JAVIDZAD _________________________ BOBBY MELAMED 4\n_________________________\nBAZE\nMELAMED _________________________ _________________________ _________________________ 5
+995ae558bdeb22005bc8807f3924c60e.pdf	effective_date jurisdiction party	Confidentiality and Non-Compete Agreement\nIn consideration of my employment by the Company, or future employment with an affiliate to whom I am transferred (together the “Company”), the compensation and other benefits to be received by me from the Company, I agree that:\n1. Definitions\nThe term “Confidential Information” as used in this Agreement includes all business information and records which relate to the Company or to parties working with the Company under a confidentiality agreement, and which are not\nknown to the public generally, including, but not limited to, technical notebook records, technical reports, patent applications, machine equipment, computer software, models, process and product designs including any drawings and\ndescriptions, unwritten knowledge and “know-how”, operating instructions, training manuals, production and development processes, production or other schedules, customer lists, customer buying records, product sales records, sales\nrequests, territory listings, market surveys, plans including marketing plans and long-range plans, salary information, contracts, supplier lists, product costs, policy statements, policy procedures, policy manuals, flowcharts, computer\nprintouts, program listings, reproductions and correspondence.\nThe term “Invention” as used in this Agreement includes any discovery, improvement, design or idea, patentable, copywriteable or otherwise, which relates to any activity or business in which the Company is engaged or any process,\nequipment, material, product or method (including computer software) in which the Company has any direct or indirect interest.\n2. Inventions\nI will disclose promptly to the Company any Invention conceived, developed or perfected by me, either alone or jointly with another or others, while I am an employee, whether or not such conception, development or perfection occurs\nduring the hours of my employment.\nI grant to the Company without further compensation, all my right, title and interest in and to any such Invention for the sole use and benefit of the Company, together with all U.S. and foreign patents, trademarks or copyrights that may at\nany time be granted, and all reissues, renewals and extensions of such patents, trademarks or copyrights. At the request and expense of the Company, I will at any time do what the Company reasonably believes to be necessary to assist the\nCompany to vest full right and title to each such Invention in the Company, enable the Company to obtain and maintain full right and title in any country, prosecute applications for and secure patents (including their reissue, renewal and\nextension), trademarks, copyrights and any other form of protection for each such Invention, and prosecute or defend any interference or opposition which may be declared involving any such application or patent and any litigation in\nwhich the Company may be involved concerning any such Invention. This will include preparing, executing and delivering any written document, drawings, flowcharts, or computer printouts. The provisions of this section will continue\nafter I stop working for the Company and shall be binding on my executors, administrators and assigns, unless waived in writing by the Company.\n11\n3. Confidential Information\nI have not disclosed and will not disclose to the Company, and I will not use, in the discharge of my duties as an employee of the Company, any trade secret or confidential information belonging to a former employer or other person and\nwhich has been classified by the former employer or other person as a trade secret or confidential information. The limitation set forth in this section shall not apply to matters which (a) are or become public knowledge, (b) were\npreviously known to the Company, (c) are subsequently received by the Company from a third party, or (d) are independently derived by the Company.\nI will not, directly or indirectly, during or at any time after the period of my employment by the Company, use for myself or others, or disclose to others, any Confidential Information, no matter how such information becomes known to\nme, unless I first obtain the Company’s written consent.\nWhen I leave the Company’s employ, or at any other time upon request by the Company, I will promptly deliver to the Company all documents and records, including but not limited to those listed under the definition of Confidential\nInformation, which are in my possession or under my control and which pertain to the Company, any of its activities or any of my activities while in the course of my employment and all copies thereof. I will not retain or deliver to any\nothers copies of these documents or records.\n4. Non-Competition\nI acknowledge and agree that the Company’s business competes upon a worldwide basis, and that the degree of competition in that business is high. I recognize that the Company may assign me to duties in a geographic area or specific\nmarket. I agree that, unless I first obtain the Company’s written consent, I will not during my employment with the Company and for a period of two (2) years following the termination of my employment (provided, however, that if I am\nemployed by the Company for less than two (2) years, the post-employment period to which this section applies shall be the greater of six (6) months or the length of my employment in any capacity), directly or indirectly or through others,\nindividually, or as a member, officer, director, employee, agent, or investor of any partnership or entity (except ownership of not more than one percent (1%) of the outstanding publicly traded stock of any company):\n(i) participate in the ownership, management, operation or control of, or work for (as an employee, consultant or independent contractor) or have any material financial interest in, any business competitive with the Company in (a) any\nmarket in which the company for which I have worked in the two (2) preceding years has sold or attempted to sell any of its product in the two (2) years preceding my termination or (b) if the Company has assigned me to duties in a\ngeographic area, within two hundred fifty (250) miles of any such geographic area in which I have worked in the two (2) years preceding my termination,\n12\n(ii) induce or encourage any employee of the Company to terminate his or her employment with the Company, or\n(iii) solicit, induce or encourage any person, business or entity which is a supplier of, a purchaser from, or a contracting party with, the Company to terminate any written or oral agreement, order or understanding with the Company or to\nconduct business in a way that results in an adverse impact to the Company.\nI further understand and agree that the remedy at law for any breach or threatened breach of my agreement not to compete contained in this section would be inadequate and that any breach or attempted breach would result in irreparable\ndamage to the Company, the monetary amount of which would be impossible to ascertain. Thus, I agree that in the event of any breach or threatened breach of my agreement not to compete, in addition to all other available legal or\nequitable remedies, the Company may obtain injunctive relief to remedy damage caused by such breach or threatened breach, and that the Company shall be entitled to recover from me its costs and expenses, including reasonable attorney\nfees, incurred in remedying such breach or threatened breach.\n5. General Terms\nI represent and agree that I have and will assume no obligations to others inconsistent with any of my obligations to the Company under this Agreement.\nIn consideration of my employment, I agree to conform to the policies of the Company. I understand that my employment is for an indefinite period and can be terminated at any time, with or without cause or prior notice by either the\nCompany or me, and will remain so unless a written agreement for a specific term is entered into and executed by me and the Company’s CEO or CFO. No other representations or agreements have been made regarding the term or\ntermination of my employment. I understand that no employee of the Company other than its CEO or CFO has the authority to enter into any agreement, commitment or guarantees binding on the Company regarding my employment and\nthen only by a signed, written document.\nThis Agreement, which is ancillary to any other agreement I may have with the Company, (a) is intended as the complete and exclusive statement of my agreement with the Company with respect to its subject matter, (b) shall be binding\nupon my heirs, executors and administrators, (c) shall be assignable by the Company to its successors; (d) shall not be modified unless in writing and signed by me and the Company, (e) shall be governed by and construed in accordance\nwith the law of the State of Connecticut, the Company ‘s home office state, and (f) if any part of this Agreement is found invalid by any court, the remainder shall be valid and enforceable in law and equity.\n/s/ David Freeman\n(Employee Signature)\n/s/ Rae Holmes\n(Witness to Signature)\nDavid Freeman\n(Employee printed name) 7/2/03\n(Date)\n13\nLydall, Inc.\nBy:\n/s/ Roger M. Widmann\nName:\nRoger M. Widmann\nTitle:\nChairman\n14	C onfidentiality and Non-Compete Agreement\nIn consideration of my employment by the Company, or future employment with an affiliate to whom I am transferred (together the "Company”), the compensation and other benefits to be received by me from the Company, I agree that:\n1. Definitions\nThe term "Confidential Information” as used in this Agreement includes all business information and records which relate to the Company or to parties working with the Company under a confidentiality agreement, and which are not\nknown to the public generally, including, but not limited to, technical notebook records, technical reports, patent applications, machine equipment, computer software, models, process and product designs including any drawings and\ndescriptions, unwritten knowledge and "know-how", operating instructions, training manuals, production and development processes, production or other schedules, customer lists, customer buying records, product sales records, sales\nrequests, territory listings, market surveys, plans including marketing plans and long-range plans, salary information, contracts, supplier lists, product costs, policy smtements, policy procedures, policy manuals, flowcharts, computer\nprintouts, program listings, reproductions and correspondence\nThe term "Invention" as used in this Agreement includes any discovery, improvement, design or idea, patentable, copywriteable or otherwise, which relates to any activity or business in which the Company is engaged or any process,\nequipment, material, product or method (including computer software) in which the Company has any direct or indirect interest.\n2. Inventions\nI will disclose promptly to the Company any Invention conceived, developed or perfected by me, either alone or jointly with another or others, while I am an employee, whether or not such conception, development or perfection occurs\nduring the hours of my employment.\nI grant to the Company without further compensation, all my right, title and interest in and to any such Invention for the sole use and benefit of the Company, together with all US. and foreign patents, trademarks or copyrights that may at\nany time be granted, and all reissues, renewals and extensions of such patents, trademarks or copyrights At the request and expense of the Company, I will at any time do what the Company reasonably believes to be necessary to assist the\nCompany to vest full right and title to each such Invention in the Company, enable the Company to obtain and maintain full right and title in any country, prosecute applications for and secure patents (including their reissue, renewal and\nextension), trademarks, copyrights and any other form of protection for each such Invention, and prosecute or defend any interference or opposition which may be declared involving any such application or patent and any litigation in\nwhich the Company may be involved concerning any such Invention. This will include preparing, executing and delivering any written document, drawings, flowcharts, or computer printouts. The provisions of this section will continue\nafterI stop working for the Company and shall be binding on my executors, administrators and assigns, unless waived in writing by the Company.\n11\n—\n3‘ Confidential Information\nI have not disclosed and will not disclose to the Company, and I will not use, in the discharge of my duties as an employee of the Company, any trade secret or confidential information belonging to a former employer or other person and\nwhich has been classified by the former employer or other person as a trade secret or confidential information The limitation set forth in this section shall not apply to matters which (a) are or become public knowledge, (b) were\npreviously known to the Company, (c) are subsequently received by the Company from a third party, or (d) are independently derived by the Company,\nI will not, directly or indirectly, during or at any time after the period of my employment by the Company, use for myself or others, or disclose to others, any Confidential Information, no matter how such information becomes known to\nme, unless I first obtain the Company’s written consent.\nWhen I leave the Company’s employ, or at any other time upon request by the Company, I will promptly deliver to the Company all documents and records, including but not limited to those listed under the definition of Confidential\nInformation, which are in my possession or under my control and which pertain to the Company, any of its activities or any of my activities while in the course of my employment and all copies thereof I will not retain or deliver to any\nothers copies of these documents or records\n4‘ Non-Competition\nI acknowledge and agree that the Company’s business competes upon a worldwide basis, and that the degree of competition in that business is high‘ I recognize that the Company may assign me to duties in a geographic area or specific\nmarket I agree that, unless I first obmin the Company’s written consent, I will not during my employment with the Company and for a period of two (2) years following the termination of my employment (provided, however, that if I am\nemployed by the Company for less than two (2) years, the post-employment period to which this section applies shall be the greater of six (6) months or the length of my employment in any capacity), directly or indirectly or through others,\nindividually, or as a member, officer, director, employee, agent, or investor of any partnership or entity (except ownership of not more than one percent (1%) of the outstanding publicly traded stock of any company):\n(i) participate in the ownership, management, operation or control of, or work for (as an employee, consultant or independent contractor) or have any material financial interest in, any business competitive with the Company in (a) any\nmarket in which the company for which I have worked in the two (2) preceding years has sold or attempted to sell any of its product in the two (2) years preceding my termination or (b) if the Company has assigned me to duties in a\ngeographic area, within two hundred fifty (250) miles of any such geographic area in which I have worked in the two (2) years preceding my termination,\n12\n(ii) induce or encourage any employee of the Company to terminate his or her employment with the Company, or\n(iii) solicit, induce or encourage any person, business or entity which is a supplier of, a purchaser from, or a contracting party with, the Company to terminate any written or oral agreement, order or understanding with the Company or to\nconduct business in a way that results in an adverse impact to the Company.\nI further understand and agree that the remedy at law for any breach or threatened breach of my agreement not to compete contained in this section would be inadequate and that any breach or attempted breach would result in irreparable\ndamage to the Company, the monetary amount of which would be impossible to ascertain Thus, I agree that in the event of any breach or threatened breach of my agreement not to compete, in addition to all other available legal or\nequitable remedies, the Company may obtain injunctive relief to remedy damage caused by such breach or threatened breach, and that the Company shall be entitled to recover from me its costs and expenses, including reasonable attorney\nfees, incurred in remedying such breach or threatened breach\n5‘ General Terms\n1 represent and agree that I have and will assume no obligations to others inconsistent with any of my obligations to the Company under this Agreement\nIn consideration of my employment, I agree to conform to the policies of the Company‘ I understand that my employment is for an indefinite period and can be terminated at any time, with or without cause or prior notice by either the\nCompany or me, and will remain so unless a written agreement for a specific term is entered into and executed by me and the Company's CEO or CFO, No other representations or agreements have been made regarding the term or\ntermination of my employment I undersmnd that no employee of the Company other than its CEO or CFO has the authority to enter into any agreement, commitment or guarantees binding on the Company regarding my employment and\nthen only by a signed, written document.\nThis Agreement, which is ancillary to any other agreementl may have with the Company, (a) is intended as the complete and exclusive statement of my agreement with the Company with respect to its subject matter, (b) shall be binding\nupon my heirs, executors and administrators, (c) shall be assignable by the Company to its successors; (d) shall not be modified unless in writing and signed by me and the Company, (e) shall be governed by and construed in accordance\nwith the law of the State of Connecticut, the Company '5 home office state, and (f) if any part of this Agreement is found invalid by any court, the remainder shall be valid and enforceable in law and equity‘\n/s/ David Freeman (Employee Signature) /s/ Rae Holmes (Witness to Signature)\nW (Employee printed name) 772703— (Date)\n13\n— Lydall, Inc. By:\nName:\nTitle:\n[5/ Roger M. Widmann\nvamam—\nChairman\n14	Confidentiality and Non-Compete Agreement\nIn consideration of my employment by the Company, or future employment with an affiliate to whom I am transferred (together the "Company"), the compensation and other benefits to be received by me from the Company, I agree that:\n1. Definitions\nThe term "Confidential Information" as used in this Agreement includes all business information and records which relate to the Company or to parties working with the Company under a confidentiality agreement, and which are not\nknown to the public generally, including, but not limited to, technical notebook records technical reports, patent applications, machine equipment, computer software, models, process and product designs including any drawings and\ndescriptions, unwritten knowledge and "know-how", operating instructions, training manuals, production and development processes, production or other schedules, customer lists, customer buying records product sales records, sales\nrequests, territory listings market surveys, plans including marketing plans and long-range plans, salary information, contracts, supplier lists, product costs, policy statements policy procedures, policy manuals, flowcharts computer\nprintouts, program listings, reproductions and correspondence.\nThe term "Invention" as used in this Agreement includes any discovery, improvement, design or idea, patentable, copywriteable or otherwise, which relates to any activity or business in which the Company is engaged or any process,\nequipment, material, product or method (including computer software) in which the Company has any direct or indirect interest.\n2. Inventions\nI will disclose promptly to the Company any Invention conceived, developed or perfected by me, either alone or jointly with another or others, while I am an employee whether or not such conception, development or perfection occurs\nduring the hours of my employment\nI grant to the Company without further compensation, all my right, title and interest in and to any such Invention for the sole use and benefit of the Company, together with all U.S. and foreign patents, trademarks or copyrights that may at\nany\ntime be granted, and all reissues, renewals and extensions of such patents, trademarks or copyrights At the request and expense of the Company, I will at any time do what the Company reasonably believes to be necessary to assist the\nCompany to vest full righ and title to each such Invention in the Company, enable the Company to obtain and maintain full right and title in any country, prosecute applications for and secure patents (including their reissue, renewal and\nextension), trademarks, copyrights and any other form of protection for each such Invention, and prosecute or defend any interference or opposition which be declared involving any such application or patent and any litigation in\nmay\nwhich the Company may be involved concerning any such Invention. This will include preparing, executing and delivering any written document, drawings, flowcharts, or computer printouts The provisions of this section will continue\nafter I stop working for the Company and shall be binding on my executors administrators and assigns, unless waived in writing by the Company\n11\n3. Confidential Information\nI have not disclosed and will not disclose to the Company, and I will not use, in the discharge of my duties as an employee of the Company, any trade secret or confidential information belonging to a former employer or other person and\nwhich has been classified by the former employer or other person as a trade secret or confidential information The limitation set forth in this section shall not apply to matters which (a) are or become public knowledge, (b) were\npreviously known to the Company, (c) are subsequently received by the Company from a third party, or (d) are independently derived by the Company.\nI\nwill not, directly or indirectly, during or at any time after the period of my employmen by the Company use for myself or others, or disclose to others, any Confidential Information, no matter how such information becomes known to\nme, unless I first obtain the Company's written consent.\nWhen I leave the Company's employ, or at any other time upon request by the Company, I will promptly deliver to the Company all documents and records, including but not limited to those listed under the definition of Confidential\nInformation, which are in my possession or under my contro and which pertain to the Company, any of its activities or any of my activities while in the course of my employment and all copies thereof. I will not retain or deliver to any\nothers copies of these documents or records.\n4. Non- -Competition\nI acknowledge and agree that the Company's business competes upon a worldwide basis, and that the degree of competition in that business is high. I recognize that the Company may assign me to duties in a geographic area or specific\nmarket. I agree that, unless I first obtain the Company's written consent, ] will not during my employmer with the Company and for a period of two (2) years following the termination of my employment (provided, however, that if am\nemployed by the Company for less than two (2) years, the post-employment period to which this section applies shall be the greater of six (6) months or the length of my employment in any capacity), directly or indirectly or through others,\nindividually or as a member, officer, director, employee, agent, or investor of any partnership or entity (except ownership of not more than one percent (1%) of the outstanding publicly traded stock of any company):\n(i) participate in the ownership management, operation or control of, or work for (as an employee, consultant or independent contractor) or have any material financial interest in, any business competitive with the Company in (a) any\nmarket in which the company for which I have worked in the two (2) preceding years has sold or attempted to sell any of its product in the two (2) years preceding my termination or (b) if the Company has assigned me to duties in a\ngeographic area, within two hundred fifty (250) miles of any such geographic area in which have worked in the two (2) years preceding my termination,\n12\n(ii) induce or encourage any employee of the Company to terminate his or her employment with the Company, or\n(iii) solicit induce or encourage any person, business or entity which is a supplier of, a purchaser from, or a contracting party with the Company to terminate any written or oral agreement, order or understanding with the Company or to\nconduct business in a way that results in an adverse impact to the Company\nIfurther understand and agree that the remedy at law for any breach or threatened breach of my agreement not to compete contained in this section would be inadequate and that any breach or attempted breach would result in irreparable\ndamage to the Company, the monetary amount of which would be impossible to ascertain. Thus I agree that in the event of any breach or threatened breach of my agreement not to compete, in addition to all other available legal or\nequitable remedies, the Company may obtain injunctive relief to remedy damage caused by such breach or threatened breach, and that the Company shall be entitled to recover from me its costs and expenses, including reasonable attorey\nfees, incurred in remedying such breach or threatened breach.\n5. General Terms\nI represent and agree that I have and will assume no obligations to others inconsistent with any of my obligations to the Company under this Agreement.\nIn consideration of my employment I agree to conform to the policies of the Company. I understand that my employment is for an indefinite period and can be terminated at any time, with or without cause or prior notice by either the\nCompany or me, and will remain so unless a written agreement for a specific term is entered into and executed by me and the Company's CEO or CFO. No other representations or agreements have been made regarding the term or\ntermination of my employment I understand that no employee of the Company other than its CEO or CFO has the authority to enter into any agreement, commitment or guarantees binding on the Company regarding my employ ymen\nand\nthen only by a signed written document.\nThis A greement, which is ancillary to any other agreement I may have with the Company, (a) is intended as the complete and exclusive statement of my agreement with the Company with respect to its subject matter, (b) shall be binding\nupon my heirs executors and administrators, (c) shall be assignable by the Company to its successors; (d) shall not be modified unless in writing and signed by me and the Company, (e) shall be governed by and construed in accordance\nwith the law of the State of Connecticut, the Company 's home office state, and (f) if any part of this Agreement is found invalid by any court, the remainder shall be valid and enforceable in law and equity.\n/s/ David Freeman\n(Employee Signature)\n/s/ Rae Holmes\nWitness to Signature)\nDavid Freeman\n(Employee printed name)\n772703\n(Date)\n13\nLydall, Inc.\nBy:\n/s/ Roger M. Widmann\nName:\nKoger M. W 1amann\nTitle:\nChairman\n14	Confidentiality and Non-Compete Agreement\nIn consideration of my employment by the Company, or future employment with an affiliate to whom I am transferred (together the “Company”), the compensation and other benefits to be received by me from the Company, I agree that:\n1. Definitions\nThe term “Confidential Information” as used in this Agreement includes all business information and records which relate to the Company or to parties working with the Company under a confidentiality agreement, and which are not\nknown to the public generally, including, but not limited to, technical notebook records, technical reports, patent applications, machine equipment, computer software, models, process and product designs including any drawings and\ndescriptions, unwritten knowledge and “know-how”, operating instructions, training manuals, production and development processes, production or other schedules, customer lists, customer buying records, product sales records, sales\nrequests, territory listings, market surveys, plans including marketing plans and long-range plans, salary information, contracts, supplier lists, product costs, policy statements, policy procedures, policy manuals, flowcharts, computer\nprintouts, program listings, reproductions and correspondence.\nThe term “Invention” as used in this Agreement includes any discovery, improvement, design or idea, patentable, copywriteable or otherwise, which relates to any activity or business in which the Company is engaged or any process,\nequipment, material, product or method (including computer software) in which the Company has any direct or indirect interest.\n2. Inventions\nI will disclose promptly to the Company any Invention conceived, developed or perfected by me, either alone or jointly with another or others, while I am an employee, whether or not such conception, development or perfection occurs\nduring the hours of my employment.\nI grant to the Company without further compensation, all my right, title and interest in and to any such Invention for the sole use and benefit of the Company, together with all U.S. and foreign patents, trademarks or copyrights that may at\nany time be granted, and all reissues, renewals and extensions of such patents, trademarks or copyrights. At the request and expense of the Company, I will at any time do what the Company reasonably believes to be necessary to assist the\nCompany to vest full right and title to each such Invention in the Company, enable the Company to obtain and maintain full right and title in any country, prosecute applications for and secure patents (including their reissue, renewal and\nextension), trademarks, copyrights and any other form of protection for each such Invention, and prosecute or defend any interference or opposition which may be declared involving any such application or patent and any litigation in\nwhich the Company may be involved concerning any such Invention. This will include preparing, executing and delivering any written document, drawings, flowcharts, or computer printouts. The provisions of this section will continue\nafter I stop working for the Company and shall be binding on my executors, administrators and assigns, unless waived in writing by the Company.\n11\n3. Confidential Information\nI have not disclosed and will not disclose to the Company, and I will not use, in the discharge of my duties as an employee of the Company, any trade secret or confidential information belonging to a former employer or other person and\nwhich has been classified by the former employer or other person as a trade secret or confidential information. The limitation set forth in this section shall not apply to matters which (a) are or become public knowledge, (b) were\npreviously known to the Company, (c) are subsequently received by the Company from a third party, or (d) are independently derived by the Company.\nI will not, directly or indirectly, during or at any time after the period of my employment by the Company, use for myself or others, or disclose to others, any Confidential Information, no matter how such information becomes known to\nme, unless I first obtain the Company’s written consent.\nWhen I leave the Company’s employ, or at any other time upon request by the Company, I will promptly deliver to the Company all documents and records, including but not limited to those listed under the definition of Confidential\nInformation, which are in my possession or under my control and which pertain to the Company, any of its activities or any of my activities while in the course of my employment and all copies thereof. I will not retain or deliver to any\nothers copies of these documents or records.\n4. Non-Competition\nI acknowledge and agree that the Company’s business competes upon a worldwide basis, and that the degree of competition in that business is high. I recognize that the Company may assign me to duties in a geographic area or specific\nmarket. I agree that, unless I first obtain the Company’s written consent, I will not during my employment with the Company and for a period of two (2) years following the termination of my employment (provided, however, that if I am\nemployed by the Company for less than two (2) years, the post-employment period to which this section applies shall be the greater of six (6) months or the length of my employment in any capacity), directly or indirectly or through others,\nindividually, or as a member, officer, director, employee, agent, or investor of any partnership or entity (except ownership of not more than one percent (1%) of the outstanding publicly traded stock of any company):\n(i) participate in the ownership, management, operation or control of, or work for (as an employee, consultant or independent contractor) or have any material financial interest in, any business competitive with the Company in (a) any\nmarket in which the company for which I have worked in the two (2) preceding years has sold or attempted to sell any of its product in the two (2) years preceding my termination or (b) if the Company has assigned me to duties in a\ngeographic area, within two hundred fifty (250) miles of any such geographic area in which I have worked in the two (2) years preceding my termination,\n12\n(ii) induce or encourage any employee of the Company to terminate his or her employment with the Company, or\n(iii) solicit, induce or encourage any person, business or entity which is a supplier of, a purchaser from, or a contracting party with, the Company to terminate any written or oral agreement, order or understanding with the Company or to\nconduct business in a way that results in an adverse impact to the Company.\nI further understand and agree that the remedy at law for any breach or threatened breach of my agreement not to compete contained in this section would be inadequate and that any breach or attempted breach would result in irreparable\ndamage to the Company, the monetary amount of which would be impossible to ascertain. Thus, I agree that in the event of any breach or threatened breach of my agreement not to compete, in addition to all other available legal or\nequitable remedies, the Company may obtain injunctive relief to remedy damage caused by such breach or threatened breach, and that the Company shall be entitled to recover from me its costs and expenses, including reasonable attorney\nfees, incurred in remedying such breach or threatened breach.\n5. General Terms\nI represent and agree that I have and will assume no obligations to others inconsistent with any of my obligations to the Company under this Agreement.\nIn consideration of my employment, I agree to conform to the policies of the Company. I understand that my employment is for an indefinite period and can be terminated at any time, with or without cause or prior notice by either the\nCompany or me, and will remain so unless a written agreement for a specific term is entered into and executed by me and the Company’s CEO or CFO. No other representations or agreements have been made regarding the term or\ntermination of my employment. I understand that no employee of the Company other than its CEO or CFO has the authority to enter into any agreement, commitment or guarantees binding on the Company regarding my employment and\nthen only by a signed, written document.\nThis Agreement, which is ancillary to any other agreement I may have with the Company, (a) is intended as the complete and exclusive statement of my agreement with the Company with respect to its subject matter, (b) shall be binding\nupon my heirs, executors and administrators, (c) shall be assignable by the Company to its successors; (d) shall not be modified unless in writing and signed by me and the Company, (e) shall be governed by and construed in accordance\nwith the law of the State of Connecticut, the Company ‘s home office state, and (f) if any part of this Agreement is found invalid by any court, the remainder shall be valid and enforceable in law and equity.\n/s/ David Freeman\n(Employee Signature)\n/s/ Rae Holmes\n(Witness to Signature)\nDavid Freeman\n(Employee printed name) 7/2/03\n(Date)\n13\nLydall, Inc.\nBy:\n/s/ Roger M. Widmann\nName:\nRoger M. Widmann\nTitle:\nChairman\n14
+99991fda39f5d1bc0076f36d9f86d6d5.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 10 nc10001202x4_ex-d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nExecution Version\nNON-DISCLOSURE AGREEMENT\nThis Non-disclosure Agreement (the “Agreement”) is made and entered into effective as of February 14, 2019, by and between\nThe KeyW Holding Corporation (collectively with its subsidiaries and controlled affiliates, the “Company”), and Jacobs\nEngineering Group Inc. (including, where the context requires, its subsidiaries and affiliates, “Recipient”). In consideration of the\nmutual covenants and conditions contained herein, to induce the Company to provide certain information to Recipient and for other\ngood and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties to this Agreement do\nhereby agree as follows:\n1.\nDefinition of Confidential Information. For all purposes of this Agreement, the term “Confidential Information” shall\ncollectively refer to all information or material disclosed or provided by the Company to Recipient, either orally or in writing, or\nobtained by Recipient from a third party or any other source, regardless of the manner in which it is furnished, concerning any\naspect of the business or affairs of the Company or its “affiliates” (as such term is defined in Rule 12b-2 under the Securities\nExchange Act of 1934, as amended (the “Exchange Act”)). Confidential Information also includes any notes, analyses,\ncompilations, data, forecasts, reports, summaries, studies or other material or documents prepared by Recipient which contain,\nreflect or are based, in whole or in part, on the Confidential Information.\nNotwithstanding the foregoing, Confidential Information shall not include information or material that (i) is publicly available\nor becomes publicly available through no action or fault of Recipient, (ii) was already in Recipient’s possession or known to\nRecipient prior to being disclosed or provided to Recipient by or on behalf of the Company, provided, that, the source of such\ninformation or material was not bound by a contractual, legal or fiduciary obligation of confidentiality to the Company or any other\nparty with respect thereto, (iii) was or is obtained by Recipient from a third party, provided, that, such third party was not bound by\na contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information or\nmaterial, or (iv) is independently developed by the Recipient without use of or reference to the Confidential Information.\n2. Restrictions on Disclosure and Use. Recipient does hereby covenant and agree with the Company as follows:\n2.1 Non-disclosure. Recipient shall keep strictly confidential and shall not disclose, or cause or permit to be disclosed, to\nany person or entity, (i) any information about a potential transaction between Recipient and the Company (the “Transaction”) or the\nfact that Recipient has received, or may receive, Confidential Information and is considering the Transaction and all discussions\nbetween the Company and Recipient related thereto, including the existence of this Agreement, except that (subject to Section 2.2\nbelow) Recipient may make such disclosure if it has received the reasonable written advice of its outside counsel that such\ndisclosure must be made in order that Recipient not commit a violation of law, and (ii) the Confidential Information, except to those\nofficers, employees or other authorized Representatives (as defined herein) and who shall agree to be bound by the terms of this\nAgreement, and except as otherwise consented to in writing by the Company. Recipient shall take all actions reasonably necessary\nto ensure that the Confidential Information remains strictly confidential and is not disclosed to or seen, used or obtained by any\nperson or entity except in accordance with the terms of this Agreement. Recipient agrees not to contact any shareholders, directors,\nofficers, employees, agents, customers, or suppliers of the Company or its affiliates with respect to the Transaction or for the\npurpose of obtaining information for use in evaluating the Transaction, without the Company’s prior written consent. Recipient\nfurther agrees that all inquiries, requests for information and other communications concerning the Transaction shall be made only\nthrough Guggenheim Securities, LLC (“Guggenheim”). Company agrees that, without Recipient’s prior written consent, it and its\nRepresentatives will not disclose to any other person the fact that Recipient is considering the Transaction, that this Agreement\nexists, that the Confidential Information has been made available to Recipient, that discussions or negotiations are taking place\nconcerning the Transaction or any of the terms, conditions or other facts with respect thereto including the status thereof, the\nvaluation, or indicative offers, or proposals.\n2.2\nRequest for Production of Confidential Information. In the event that Recipient is requested or required (by oral\nquestions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other\nsimilar process or by any law, rule or regulation of any governmental agency or regulatory authority) to disclose any of the\nConfidential Information, Recipient shall provide the Company with prompt written notice of any such request or requirement prior\nto such disclosure so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the\nprovisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Company,\nRecipient is nonetheless,\nlegally compelled to disclose Confidential Information, Recipient may, without liability hereunder, disclose to such tribunal only\nthat portion of the Confidential Information which outside counsel advises, in writing, Recipient is legally required to be disclosed,\nprovided that Recipient shall use its best efforts to preserve the confidentiality of the Confidential Information, including, without\nlimitation, by cooperating with the Company to obtain an appropriate protective order or other reliable assurance that confidential\ntreatment will be afforded the Confidential Information by such tribunal.\n2.3\nOwnership. The Confidential Information is owned solely and exclusively by the Company and shall remain the\nexclusive property of the Company. No right, title or interest in or to any of the Confidential Information or any material developed\ntherefrom is transferred to Recipient hereby or by its delivery to Recipient hereunder.\n2.4 Use. Recipient agrees not to use any Confidential Information of the Company for any purpose except to evaluate and\nengage in discussions regarding the Transaction. Recipient agrees not to disclose any Confidential Information of the Company to\nanyone, except to those directors, officers, employees, or Representatives of the Recipient who are required to have the information\nin order to evaluate or engage in discussions concerning the Transaction. Recipient shall not reverse engineer, disassemble or\ndecompile any prototypes, software or other tangible objects which embody the Company’s Confidential Information and which are\nprovided to the Recipient hereunder.\nNotwithstanding the above, the Recipient may disclose Confidential Information to (1) directors, officers, and employees of its\nparent company or, (2) directors, officers, and employees of a wholly-owned subsidiary of its parent company or, (3) directors,\nofficers employees of the Recipient’s wholly owned subsidiaries, or, (4) agents or advisors of Recipient, including, without\nlimitation, attorneys, accountants, consultants, bankers and financial advisors (collectively, “Representatives”) who are party to an\nassociated non-disclosure agreement with Recipient, provided that such Representatives have a need to know for the purposes of\nthis Agreement and are under an obligation to hold such information in confidence. Prior to providing the Confidential Information\nto any Representative, the Recipient shall notify each Representative to whom such disclosure is made that such Confidential\nInformation is received in confidence and direct such Representative to maintain such confidentiality and not to use the Confidential\nInformation for any purpose other than its evaluation of the Transaction. Recipient agrees that it will be responsible for any breach\nby its Representatives of the confidentiality and non-use provisions of this Agreement, except to the extent that any such\nRepresentative shall have entered into its own definitive confidentiality agreement with the Company.\n3. No Solicitation. For a period of eighteen (18) months from the date of this Agreement, Recipient will not directly or indirectly\n(and will not cause or permit any person controlled by Recipient to), solicit for employment, offer to hire, employ, hire, otherwise\ncontract for the services of, or otherwise interfere with the employment relationship of any individual who is an employee of the\nCompany or its affiliates and who is named in the Confidential Information Memorandum furnished by Company (or other similar\ndocument) or whom Recipient learns of by name through due diligence efforts provided, however, that this prohibition shall not\napply to any person (i) who responds to a general employment advertisement, social media, or whose resume is posted on social\nmedia sites, or use of employment agencies, not specifically directed at the Company’s employees, (ii) who has been terminated by\nthe Company prior to commencement of employment discussions with Recipient or its Representatives, (iii) with whom Recipient is\ncurrently engaged in employment discussion (as evidenced by written documentation in the event of a dispute), or (iv) who was\nsolicited for employment, offered to hire, employed, hired, or otherwise contracted for the services of the Company with the\nCompany’s prior written consent.\n4. Return of Confidential Information. Recipient shall, upon accomplishing the limited purpose of evaluating the Transaction, or\nat any time upon the request of the Company, immediately destroy or return to the Company all Confidential Information (including\nnotes, writings and other material developed therefrom by Recipient) and all copies thereof and retain none for its files.\nNotwithstanding the foregoing, neither the Recipient nor its Representatives will be required to erase electronically stored\nConfidential Information that has been saved to a back-up file or other electronic medium in accordance with its or its\nRepresentatives’ ordinary back-up practices. Notwithstanding such return or destruction, Recipient shall continue to be bound by\nthis Agreement.\n5. Anti-Clubbing.\n5.1\nThe Recipient hereby represents and warrants that the Recipient is not acting as a broker for any other Person in\nconnection with the Transaction, and is considering the Transaction only for its own account and for the account of its affiliates.\nExcept with the prior written consent of the Company, the Recipient agrees that (i) it will\nnot act as a joint bidder or co-bidder with any other person with respect to the Transaction, and (ii) the Recipient will not enter into\nany discussions, negotiations, agreements, arrangements or understandings (whether written or oral) with any other person regarding\nthe Transaction, other than the Company and its representatives, and the Recipient’s Representatives (to the extent permitted\nhereunder).\n5.2\nNotwithstanding anything to the contrary contained herein, without the prior written consent of the Company, the\nRecipient agrees that it will not disclose any Confidential Information to any actual or potential sources of financing (debt, equity or\notherwise).\n6. Standstill. Unless approved in advance in writing by the board of directors of the Company, the Recipient agrees that it will\nnot, for a period of one (1) year after the date of this Agreement, directly or indirectly:\n6.1\nmake any statement or proposal to the board of directors of any of the Company, any of the Company’s Representatives\nor any of the Company’s stockholders regarding, or make any public announcement, proposal or offer (including any “solicitation”\nof “proxies” as such terms are defined or used in Regulation 14A of the Exchange Act) with respect to, or otherwise solicit, seek or\noffer to effect (including, for the avoidance of doubt, indirectly by means of communication with the press or media) (i) any\nbusiness combination, merger, tender offer, exchange offer or similar transaction involving the Company or any of its subsidiaries,\n(ii) any restructuring, recapitalization, liquidation or similar transaction involving the Company or any of its subsidiaries, (iii) any\nacquisition of any of the Company’s loans, debt securities, equity securities or assets, or rights or options to acquire interests in any\nof the Company’s loans, debt securities, equity securities or assets, (iv) any proposal to seek representation on the board of directors\nof the Company or otherwise seek to control or influence the management, board of directors or policies of any of the Company, (v)\nany request or proposal to waive, terminate or amend the provisions of this Agreement or (vi) any proposal, arrangement or other\nstatement that is inconsistent with the terms of this Agreement, including this Section 6;\n6.2 instigate, encourage or assist any third party (including forming a “group” within the meaning of Section 13(d)(3) of the\nExchange Act with any such third party) to do, or enter into any discussions or agreements with any third party with respect to, any\nof the actions set forth in clause 6.1 above;\n6.3\nacquire (or offer, propose or agree to acquire), or solicit an offer to acquire, of record or beneficially, directly or\nindirectly, acting alone or in concert, by purchase or otherwise, any loans, debt securities, equity securities or assets of the Company\nor any of its subsidiaries, or rights or options to acquire interests in any of the Company’s loans, debt securities, equity securities or\nassets, except that Recipient may beneficially own up to 4.9% of the Company’s outstanding loans, debt securities and equity\nsecurities and may own an amount in excess of such percentage solely to the extent resulting exclusively from actions taken by the\nCompany;\n6.4\nacquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange\nor otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its affiliates or (ii) direct or indirect rights,\nwarrants or options to acquire any assets of the Company or any of its affiliates, except for such assets as are then being offered for\nsale by the Company or any of its affiliates;\n6.5\narrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities of the\nCompany or any securities convertible into or exchangeable or exercisable for any voting securities or assets of the Company,\nexcept for such assets as are then being offered for sale by the Company or any of its affiliates; or\n6.6\ntake any action which would reasonably be expected to require the Company or any of its affiliates to make a public\nannouncement regarding any of the actions set forth in clauses 6.1 -6 .3 above.\n6.7\nThe foregoing restrictions shall not apply to any of the Recipient’s Representatives effecting or recommending\ntransactions in securities (a) in the ordinary course of its business as an investment advisor, broker, dealer in securities, market\nmaker, specialist or block positioner and (b) not at the direction or request of the Recipient.\n6.8 Notwithstanding the foregoing provisions of this Section 6, the restrictions set forth in this Section 6 shall terminate and\nbe of no further force and effect if the Company enters into a definitive agreement with respect to, or publicly announces that it\nplans to enter into, a transaction involving all or a controlling portion of the Company’s equity securities or all or substantially all of\nthe Company’s assets (whether by merger, consolidation, business combination, tender or exchange offer, recapitalization,\nrestructuring, sale, equity issuance or otherwise).\n7.\nNo Representations or Warranties. The Confidential Information is being provided to Recipient “as is” and without any\nrepresentation or warranty of any kind, either express or implied, regarding the accuracy or completeness or other quality of the\nConfidential Information. In no event shall the Company or its affiliates or any of their respective directors, officers, employees,\nagents or Representatives (including, without limitation, Guggenheim) have any liability to Recipient relating to or arising out of\nany use of the Confidential Information.\n8. Indemnification. Recipient shall indemnify and hold harmless the Company and its affiliates and their respective directors,\nofficers, employees, agents and Representatives from and against any and all losses, damages, costs and expenses (including,\nwithout limitation, reasonable attorneys’ fees and expenses) caused by or arising out of any breach of this Agreement by Recipient\nor any breach for which Recipient is responsible hereunder. In any and all actions, suits, proceedings, claims, demands or judgments\narising out of or related to this agreement the prevailing party shall be entitled to recovery of attorney’s fees and other costs and\nexpenses.\n9. Equitable Remedies. Recipient hereby agrees that its failure to perform any obligation or duty which it has agreed to perform\nunder this Agreement will cause irreparable harm to the Company, which harm cannot be adequately compensated for by money\ndamages. It is further agreed by Recipient that an order of specific performance or for injunctive relief against Recipient in the event\nof a breach or default under the terms of this Agreement would be equitable and would not work a hardship on Recipient.\nAccordingly, in the event of a breach or default by Recipient hereunder, the Company, without any bond or other security being\nrequired and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to\ncompel specific performance by, or to obtain injunctive relief against, Recipient, with respect to any obligation or duty herein or\nbreach thereof.\n10. No Licenses Granted. The Company grants no licenses, by implication or otherwise, under any patent, copyright, trademark,\nintellectual property rights, trade secret or other rights by disclosing Confidential Information under this Agreement.\n11. Definitive Agreement. The Company and the Recipient understand and agree that no contract or agreement providing for any\ntransaction involving the Company or Recipient shall be deemed to exist between Recipient and the Company unless and until a\nfinal definitive agreement has been executed and delivered, and the Company and the Recipient hereby waive in advance, any\nclaims (including, without limitation, breach of contract) in connection with any such transaction unless and until Recipient and the\nCompany shall have entered into a final definitive agreement. The Company and the Recipient also agree that unless and until a\nfinal definitive agreement between Recipient and the Company has been executed and delivered, neither Recipient nor the Company\nwill be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for\nthe matters specifically agreed to herein. The Company reserves the right, in its sole discretion, to reject any and all proposals made\nby Recipient and to terminate discussions and negotiations with Recipient at any time. Recipient further understands that (i) the\nCompany shall be free to conduct any process for any transaction involving the Company, if and as the Company in its sole\ndiscretion shall determine (including, without limitation, negotiating with any other interested party and entering into a definitive\nagreement without prior notice to Recipient or any other person), (ii) any procedures relating to such process or transaction may be\nchanged at any time in the Company’s sole discretion without notice to Recipient or any other person, and (iii) Recipient shall not\nhave any claims whatsoever against the Company or any of its agents or representatives (including, without limitation,\nGuggenheim) arising out of or relating to any transaction involving the Company (other than any claims against the parties to a\ndefinitive agreement with Recipient in accordance with the terms thereof) nor, unless a definitive agreement is entered into with\nRecipient, against any third party with whom a transaction is entered into.\n12. Trading in Securities. Recipient acknowledges that it is aware, and agrees to advise its directors, officers, employees, agents\nand Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities\nlaws prohibit any person who has material, non-public information concerning the Transaction from purchasing or selling securities\nof a company that may be a party to such Transaction or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n13. Export. Recipient and its employees shall abide by all export laws, rules and regulations of the United States Government, or\nany agency thereof, including, but not limited to, the Export Control Regulations of the US Department of Commerce, the\nInternational Traffic in Arms Regulations of the US Department of State, and the National Industrial Security Program Operating\nManual (DOD 5220.22 -M), in connection with the disclosure, use, export and/or re-export of all information disclosed under this\nAgreement.\n14. Miscellaneous. This Agreement shall be binding upon, and inure to the benefit of, and be enforceable by, the parties hereto\nand their respective successors and assigns, but this Agreement shall not be assignable by Recipient without the prior written\nconsent of the Company. This Agreement constitutes the complete agreement between the parties hereto with respect to the subject\nmatter hereof and shall continue in full force and effect until terminated by mutual agreement of the parties hereto. The section\nheadings used herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this\nAgreement. This Agreement shall be construed, performed and enforced in accordance with, and governed by, the internal laws of\nthe State of Maryland, without giving effect to the principles of conflicts of law thereof, and each party consents to personal\njurisdiction in such state and voluntarily submits to the jurisdiction of the state and federal courts in Baltimore, Maryland, in any\naction or proceeding relating to this Agreement. Whenever possible, each provision of this Agreement shall be interpreted in such a\nmanner as to be effective and valid under applicable law, but if any provision hereof is held to be invalid, illegal or unenforceable\nunder any applicable law or rule in any jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegality,\nor unenforceability, without invalidating the remainder of this Agreement. This Agreement may not be modified or amended and no\nprovision hereof may be waived, in whole or in part, except by a written agreement signed by the parties hereto. No waiver of any\nbreach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any\nsubsequent breach or default of the same or similar nature. This Agreement may be executed in any number of counterparts, each of\nwhich shall be deemed an original, but all of which taken together shall constitute one and the same instrument.\n15. Term. This Agreement shall remain in full force and effect for two (2) years from the date hereof.\nIN WITNESS WHEREOF, the parties hereto have duly executed this Agreement effective as of the date first set forth above.\nThe KeyW Holding Corporation\nJacobs Engineering Group Inc.\nBy:\n/s/ Philip Luci, Jr.\nBy:\n/s/ Jeff Goldfarb\nTitle:\nEVP & General Counsel\nTitle:\nSVP, Corporate Development	EX-99.(D)(2) 10 nc10001202x4._ex-d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nExecution Version\nNON-DISCLOSURE AGREEMENT\nThis Non-disclosure Agreement (the “Agreement”) is made and entered into effective as of February 14, 2019, by and between\nThe KeyW Holding Corporation (collectively with its subsidiaries and controlled affiliates, the “Company”), and Jacobs\nEngineering Group Inc. (including, where the context requires, its subsidiaries and affiliates, “Recipient”). In consideration of the\nmutual covenants and conditions contained herein, to induce the Company to provide certain information to Recipient and for other\ngood and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties to this Agreement do\nhereby agree as follows:\n1. Definition of Confidential Information. For all purposes of this Agreement, the term “Confidential Information” shall\ncollectively refer to all information or material disclosed or provided by the Company to Recipient, either orally or in writing, or\nobtained by Recipient from a third party or any other source, regardless of the manner in which it is furnished, concerning any\naspect of the business or affairs of the Company or its “affiliates” (as such term is defined in Rule 12b-2 under the Securities\nExchange Act of 1934, as amended (the “Exchange Act”)). Confidential Information also includes any notes, analyses,\ncompilations, data, forecasts, reports, summaries, studies or other material or documents prepared by Recipient which contain,\nreflect or are based, in whole or in part, on the Confidential Information.\n \nNotwithstanding the foregoing, Confidential Information shall not include information or material that (i) is publicly available\nor becomes publicly available through no action or fault of Recipient, (ii) was already in Recipient’s possession or known to\nRecipient prior to being disclosed or provided to Recipient by or on behalf of the Company, provided, that, the source of such\ninformation or material was not bound by a contractual, legal or fiduciary obligation of confidentiality to the Company or any other\nparty with respect thereto, (iii) was or is obtained by Recipient from a third party, provided, that, such third party was not bound by\na contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information or\nmaterial, or (iv) is independently developed by the Recipient without use of or reference to the Confidential Information.\n2. Restrictions on Disclosure and Use. Recipient does hereby covenant and agree with the Company as follows:\n2.1 Non-disclosure. Recipient shall keep strictly confidential and shall not disclose, or cause or permit to be disclosed, to\nany person or entity, (i) any information about a potential transaction between Recipient and the Company (the “Transaction”) or the\nfact that Recipient has received, or may receive, Confidential Information and is considering the Transaction and all discussions\nbetween the Company and Recipient related thereto, including the existence of this Agreement, except that (subject to Section 2.2\nbelow) Recipient may make such disclosure if it has received the reasonable written advice of its outside counsel that such\ndisclosure must be made in order that Recipient not commit a violation of law, and (ii) the Confidential Information, except to those\nofficers, employees or other authorized Representatives (as defined herein) and who shall agree to be bound by the terms of this\nAgreement, and except as otherwise consented to in writing by the Company. Recipient shall take all actions reasonably necessary\nto ensure that the Confidential Information remains strictly confidential and is not disclosed to or seen, used or obtained by any\nperson or entity except in accordance with the terms of this Agreement. Recipient agrees not to contact any shareholders, directors,\nofficers, employees, agents, customers, or suppliers of the Company or its affiliates with respect to the Transaction or for the\npurpose of obtaining information for use in evaluating the Transaction, without the Company’s prior written consent. Recipient\nfurther agrees that all inquiries, requests for information and other communications concerning the Transaction shall be made only\nthrough Guggenheim Securities, LLC (“Guggenheim”). Company agrees that, without Recipient’s prior written consent, it and its\nRepresentatives will not disclose to any other person the fact that Recipient is considering the Transaction, that this Agreement\nexists, that the Confidential Information has been made available to Recipient, that discussions or negotiations are taking place\nconcerning the Transaction or any of the terms, conditions or other facts with respect thereto including the status thereof, the\nvaluation, or indicative offers, or proposals.\n2.2 Request for Production of Confidential Information. In the event that Recipient is requested or required (by oral\nquestions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other\nsimilar process or by any law, rule or regulation of any governmental agency or regulatory authority) to disclose any of the\nConfidential Information, Recipient shall provide the Company with prompt written notice of any such request or requirement prior\nto such disclosure so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the\nprovisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Company,\nRecipient is nonetheless,\nlegally compelled to disclose Confidential Information, Recipient may, without liability hereunder, disclose to such tribunal only\nthat portion of the Confidential Information which outside counsel advises, in writing, Recipient is legally required to be disclosed,\nprovided that Recipient shall use its best efforts to preserve the confidentiality of the Confidential Information, including, without\nlimitation, by cooperating with the Company to obtain an appropriate protective order or other reliable assurance that confidential\ntreatment will be afforded the Confidential Information by such tribunal.\n2.3 Ownership. The Confidential Information is owned solely and exclusively by the Company and shall remain the\nexclusive property of the Company. No right, title or interest in or to any of the Confidential Information or any material developed\ntherefrom is transferred to Recipient hereby or by its delivery to Recipient hereunder.\n2.4 Use. Recipient agrees not to use any Confidential Information of the Company for any purpose except to evaluate and\nengage in discussions regarding the Transaction. Recipient agrees not to disclose any Confidential Information of the Company to\nanyone, except to those directors, officers, employees, or Representatives of the Recipient who are required to have the information\nin order to evaluate or engage in discussions concerning the Transaction. Recipient shall not reverse engineer, disassemble or\ndecompile any prototypes, software or other tangible objects which embody the Company’s Confidential Information and which are\nprovided to the Recipient hereunder.\nNotwithstanding the above, the Recipient may disclose Confidential Information to (1) directors, officers, and employees of its\nparent company or, (2) directors, officers, and employees of a wholly-owned subsidiary of its parent company or, (3) directors,\nofficers employees of the Recipient’s wholly owned subsidiaries, or, (4) agents or advisors of Recipient, including, without\nlimitation, attorneys, accountants, consultants, bankers and financial advisors (collectively, “Representatives”) who are party to an\nassociated non-disclosure agreement with Recipient, provided that such Representatives have a need to know for the purposes of\nthis Agreement and are under an obligation to hold such information in confidence. Prior to providing the Confidential Information\nto any Representative, the Recipient shall notify each Representative to whom such disclosure is made that such Confidential\nInformation is received in confidence and direct such Representative to maintain such confidentiality and not to use the Confidential\nInformation for any purpose other than its evaluation of the Transaction. Recipient agrees that it will be responsible for any breach\nby its Representatives of the confidentiality and non-use provisions of this Agreement, except to the extent that any such\nRepresentative shall have entered into its own definitive confidentiality agreement with the Company.\n3.  No Solicitation. For a period of eighteen (18) months from the date of this Agreement, Recipient will not directly or indirectly\n(and will not cause or permit any person controlled by Recipient to), solicit for employment, offer to hire, employ, hire, otherwise\ncontract for the services of, or otherwise interfere with the employment relationship of any individual who is an employee of the\nCompany or its affiliates and who is named in the Confidential Information Memorandum furnished by Company (or other similar\ndocument) or whom Recipient learns of by name through due diligence efforts provided, however, that this prohibition shall not\napply to any person (i) who responds to a general employment advertisement, social media, or whose resume is posted on social\nmedia sites, or use of employment agencies, not specifically directed at the Company’s employees, (ii) who has been terminated by\nthe Company prior to commencement of employment discussions with Recipient or its Representatives, (iii) with whom Recipient is\ncurrently engaged in employment discussion (as evidenced by written documentation in the event of a dispute), or (iv) who was\nsolicited for employment, offered to hire, employed, hired, or otherwise contracted for the services of the Company with the\nCompany’s prior written consent.\n4.  Return of Confidential Information. Recipient shall, upon accomplishing the limited purpose of evaluating the Transaction, or\nat any time upon the request of the Company, immediately destroy or return to the Company all Confidential Information (including\nnotes, writings and other material developed therefrom by Recipient) and all copies thereof and retain none for its files.\nNotwithstanding the foregoing, neither the Recipient nor its Representatives will be required to erase electronically stored\nConfidential Information that has been saved to a back-up file or other electronic medium in accordance with its or its\nRepresentatives’ ordinary back-up practices. Notwithstanding such return or destruction, Recipient shall continue to be bound by\nthis Agreement.\n5. Anti-Clubbing.\n5.1 The Recipient hereby represents and warrants that the Recipient is not acting as a broker for any other Person in\nconnection with the Transaction, and is considering the Transaction only for its own account and for the account of its affiliates.\nExcept with the prior written consent of the Company, the Recipient agrees that (i) it will\nnot act as a joint bidder or co-bidder with any other person with respect to the Transaction, and (ii) the Recipient will not enter into\nany discussions, negotiations, agreements, arrangements or understandings (whether written or oral) with any other person regarding\nthe Transaction, other than the Company and its representatives, and the Recipient’s Representatives (to the extent permitted\nhereunder).\n5.2 Notwithstanding anything to the contrary contained herein, without the prior written consent of the Company, the\nRecipient agrees that it will not disclose any Confidential Information to any actual or potential sources of financing (debt, equity or\notherwise).\n6. Standstill. Unless approved in advance in writing by the board of directors of the Company, the Recipient agrees that it will\nnot, for a period of one (1) year after the date of this Agreement, directly or indirectly:\n6.1  make any statement or proposal to the board of directors of any of the Company, any of the Company’s Representatives\nor any of the Company’s stockholders regarding, or make any public announcement, proposal or offer (including any “solicitation”\nof “proxies” as such terms are defined or used in Regulation 14A of the Exchange Act) with respect to, or otherwise solicit, seek or\noffer to effect (including, for the avoidance of doubt, indirectly by means of communication with the press or media) (i) any\nbusiness combination, merger, tender offer, exchange offer or similar transaction involving the Company or any of its subsidiaries,\n(ii) any restructuring, recapitalization, liquidation or similar transaction involving the Company or any of its subsidiaries, (iii) any\nacquisition of any of the Company’s loans, debt securities, equity securities or assets, or rights or options to acquire interests in any\nof the Company’s loans, debt securities, equity securities or assets, (iv) any proposal to seek representation on the board of directors\nof the Company or otherwise seek to control or influence the management, board of directors or policies of any of the Company, (v)\nany request or proposal to waive, terminate or amend the provisions of this Agreement or (vi) any proposal, arrangement or other\nstatement that is inconsistent with the terms of this Agreement, including this Section 6;\n6.2  instigate, encourage or assist any third party (including forming a “group” within the meaning of Section 13(d)(3) of the\nExchange Act with any such third party) to do, or enter into any discussions or agreements with any third party with respect to, any\nof the actions set forth in clause 6.1 above;\n6.3 acquire (or offer, propose or agree to acquire), or solicit an offer to acquire, of record or beneficially, directly or\nindirectly, acting alone or in concert, by purchase or otherwise, any loans, debt securities, equity securities or assets of the Company\nor any of its subsidiaries, or rights or options to acquire interests in any of the Company’s loans, debt securities, equity securities or\nassets, except that Recipient may beneficially own up to 4.9% of the Company’s outstanding loans, debt securities and equity\nsecurities and may own an amount in excess of such percentage solely to the extent resulting exclusively from actions taken by the\nCompany;\n6.4  acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange\nor otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its affiliates or (ii) direct or indirect rights,\nwarrants or options to acquire any assets of the Company or any of its affiliates, except for such assets as are then being offered for\nsale by the Company or any of its affiliates;\n6.5 arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities of the\nCompany or any securities convertible into or exchangeable or exercisable for any voting securities or assets of the Company,\nexcept for such assets as are then being offered for sale by the Company or any of its affiliates; or\n6.6 take any action which would reasonably be expected to require the Company or any of its affiliates to make a public\nannouncement regarding any of the actions set forth in clauses 6.1-6.3 above.\n6.7 The foregoing restrictions shall not apply to any of the Recipient’s Representatives effecting or recommending\ntransactions in securities (a) in the ordinary course of its business as an investment advisor, broker, dealer in securities, market\nmaker, specialist or block positioner and (b) not at the direction or request of the Recipient.\n6.8  Notwithstanding the foregoing provisions of this Section 6, the restrictions set forth in this Section 6 shall terminate and\nbe of no further force and effect if the Company enters into a definitive agreement with respect to, or publicly announces that it\nplans to enter into, a transaction involving all or a controlling portion of the Company’s equity securities or all or substantially all of\nthe Company’s assets (whether by merger, consolidation, business combination, tender or exchange offer, recapitalization,\nrestructuring, sale, equity issuance or otherwise).\n7. No Representations or Warranties. The Confidential Information is being provided to Recipient “as is” and without any\nrepresentation or warranty of any kind, either express or implied, regarding the accuracy or completeness or other quality of the\nConfidential Information. In no event shall the Company or its affiliates or any of their respective directors, officers, employees,\nagents or Representatives (including, without limitation, Guggenheim) have any liability to Recipient relating to or arising out of\nany use of the Confidential Information.\n8. Indemnification. Recipient shall indemnify and hold harmless the Company and its affiliates and their respective directors,\nofficers, employees, agents and Representatives from and against any and all losses, damages, costs and expenses (including,\nwithout limitation, reasonable attorneys’ fees and expenses) caused by or arising out of any breach of this Agreement by Recipient\nor any breach for which Recipient is responsible hereunder. In any and all actions, suits, proceedings, claims, demands or judgments\narising out of or related to this agreement the prevailing party shall be entitled to recovery of attorney’s fees and other costs and\nexpenses.\n9.  Equitable Remedies. Recipient hereby agrees that its failure to perform any obligation or duty which it has agreed to perform\nunder this Agreement will cause irreparable harm to the Company, which harm cannot be adequately compensated for by money\ndamages. It is further agreed by Recipient that an order of specific performance or for injunctive relief against Recipient in the event\nof a breach or default under the terms of this Agreement would be equitable and would not work a hardship on Recipient.\nAccordingly, in the event of a breach or default by Recipient hereunder, the Company, without any bond or other security being\nrequired and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to\ncompel specific performance by, or to obtain injunctive relief against, Recipient, with respect to any obligation or duty herein or\nbreach thereof.\n10.  No Licenses Granted. The Company grants no licenses, by implication or otherwise, under any patent, copyright, trademark,\nintellectual property rights, trade secret or other rights by disclosing Confidential Information under this Agreement.\n11.  Definitive Agreement. The Company and the Recipient understand and agree that no contract or agreement providing for any\ntransaction involving the Company or Recipient shall be deemed to exist between Recipient and the Company unless and until a\nfinal definitive agreement has been executed and delivered, and the Company and the Recipient hereby waive in advance, any\nclaims (including, without limitation, breach of contract) in connection with any such transaction unless and until Recipient and the\nCompany shall have entered into a final definitive agreement. The Company and the Recipient also agree that unless and until a\nfinal definitive agreement between Recipient and the Company has been executed and delivered, neither Recipient nor the Company\nwill be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for\nthe matters specifically agreed to herein. The Company reserves the right, in its sole discretion, to reject any and all proposals made\nby Recipient and to terminate discussions and negotiations with Recipient at any time. Recipient further understands that (i) the\nCompany shall be free to conduct any process for any transaction involving the Company, if and as the Company in its sole\ndiscretion shall determine (including, without limitation, negotiating with any other interested party and entering into a definitive\nagreement without prior notice to Recipient or any other person), (ii) any procedures relating to such process or transaction may be\nchanged at any time in the Company’s sole discretion without notice to Recipient or any other person, and (iii) Recipient shall not\nhave any claims whatsoever against the Company or any of its agents or representatives (including, without limitation,\nGuggenheim) arising out of or relating to any transaction involving the Company (other than any claims against the parties to a\ndefinitive agreement with Recipient in accordance with the terms thereof) nor, unless a definitive agreement is entered into with\nRecipient, against any third party with whom a transaction is entered into.\n12.  Trading in Securities. Recipient acknowledges that it is aware, and agrees to advise its directors, officers, employees, agents\nand Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities\nlaws prohibit any person who has material, non-public information concerning the Transaction from purchasing or selling securities\nof a company that may be a party to such Transaction or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n13.  Export. Recipient and its employees shall abide by all export laws, rules and regulations of the United States Government, or\nany agency thereof, including, but not limited to, the Export Control Regulations of the US Department of Commerce, the\nInternational Traffic in Arms Regulations of the US Department of State, and the National Industrial Security Program Operating\nManual (DOD 5220.22-M), in connection with the disclosure, use, export and/or re-export of all information disclosed under this\nAgreement.\n14. Miscellaneous. This Agreement shall be binding upon, and inure to the benefit of, and be enforceable by, the parties hereto\nand their respective successors and assigns, but this Agreement shall not be assignable by Recipient without the prior written\nconsent of the Company. This Agreement constitutes the complete agreement between the parties hereto with respect to the subject\nmatter hereof and shall continue in full force and effect until terminated by mutual agreement of the parties hereto. The section\nheadings used herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this\nAgreement. This Agreement shall be construed, performed and enforced in accordance with, and governed by, the internal laws of\nthe State of Maryland, without giving effect to the principles of conflicts of law thereof, and each party consents to personal\njurisdiction in such state and voluntarily submits to the jurisdiction of the state and federal courts in Baltimore, Maryland, in any\naction or proceeding relating to this Agreement. Whenever possible, each provision of this Agreement shall be interpreted in such a\nmanner as to be effective and valid under applicable law, but if any provision hereof is held to be invalid, illegal or unenforceable\nunder any applicable law or rule in any jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegality,\nor unenforceability, without invalidating the remainder of this Agreement. This Agreement may not be modified or amended and no\nprovision hereof may be waived, in whole or in part, except by a written agreement signed by the parties hereto. No waiver of any\nbreach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any\nsubsequent breach or default of the same or similar nature. This Agreement may be executed in any number of counterparts, each of\nwhich shall be deemed an original, but all of which taken together shall constitute one and the same instrument.\n15.  Term. This Agreement shall remain in full force and effect for two (2) years from the date hereof.\nIN WITNESS WHEREOF, the parties hereto have duly executed this Agreement effective as of the date first set forth above.\nThe KeyW Holding Corporation Jacobs Engineering Group Inc.\nBy: /s/ Philip Luci, Jr. By: /s/ Jeff Goldfarb\nTitle: EVP & General Counsel Title: SVP, Corporate Development	EX-99.(D)(2) 10 c10001202x4_ex-d2.htn EXHIBIT (D)(2)\nExhibit (d)(2)\nExecution Version\nNON-DISCLOSURE AGREEMENT\nThis Non-disclosure Agreement (the "Agreement") is made and entered into effective as of February 14, 2019, by and between\nThe\nKeyW Holding Corporation (collectively with its subsidiaries and controlled affiliates, the "Company."), and Jacobs\nEngineering Group Inc. (including, where the context requires, its subsidiaries and affiliates, "Recipient"). In consideration of the\nmutual covenants and conditions contained herein, to induce the Company to provide certain information to Recipient and for other\ngood and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties to this Agreement do\nhereby agree as follows:\n1.\nDefinition of Confidential Information. For all purposes of this Agreement, the term "Confidential Information" shall\ncollectively refer to all information or material disclosed or provided by the Company to Recipient, either orally or in writing, or\nobtained by Recipient from a third party or any other source, regardless of the manner in which it is furnished, concerning any\naspect of the business or affairs of the Company or its "affiliates" (as such term is defined in Rule 12b-2 under the Securities\nExchange Act of 1934, as amended (the "ExchangeAct' Confidential Information also includes any notes, analyses,\ncompilations, data, forecasts, reports, summaries, studies or other material or documents prepared by Recipient which contain,\nreflect or are based, in whole or in part, on the Confidentia Information.\nNotwithstanding the foregoing, Confidentia Information shall not include information or material that (i) is publicly available\nor becomes publicly available through no action or fault of Recipient, (ii) was already in Recipient's possession or known to\nRecipient prior to being disclosed or provided to Recipient by or on behalf of the Company, provided, that, the source of such\ninformation or material was not bound by a contractual, legal or fiduciary obligation of confidentiality to the Company or any other\nparty with respect thereto, (iii) was or is obtained by Recipient from a third party, provided, that, such third party was not bound by\na contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information or\nmaterial, or (iv) is independently developed by the Recipient without use of or reference to the Confidential Information.\n2.\nRestrictions on Disclosure and Use. Recipient does hereby covenant and agree with the Company as follows:\n2.1\nNon-disclosure. Recipient shall keep strictly confidential and shall not disclose, or cause or permit to be disclosed,\nto\nany person or entity, (i) any information about a potential transaction between Recipient and the Company (the "Transaction") or the\nfact that Recipient has received, or may receive, Confidential Information and is considering the Transaction and all discussions\nbetween the Company and Recipient related thereto, including the existence of this Agreement, except that (subject to Section 2.2\nbelow) Recipient may make such disclosure if it has received the reasonable written advice of its outside counsel that such\ndisclosure must be made in order that Recipient not commit a violation of law, and (ii) the Confidential Information, except to those\nofficers, employees or other authorized Representatives (as defined herein) and who shall agree to be bound by the terms of this\nAgreement, and except as otherwise consented to in writing by the Company. Recipient shall take all actions reasonably necessary\nto ensure that the Confidential Information remains strictly confidential and is not disclosed to or seen, used or obtained by any\nperson or entity except in accordance with the terms of this Agreement. Recipient agrees not to contact any shareholders, directors,\nofficers, employees, agents, customers, or suppliers of the Company or its affiliates with respect to the Transaction or for\nthe\npurpose of obtaining information for use in evaluating the Transaction, without the Company's prior written consent. Recipient\nfurther agrees that all inquiries, requests for information and other communications concerning the Transaction shall be made only\nthrough\nGuggenheim\nSecurities,\nLLC\n("Guggenheim").\nCompany\nagrees\nthat,\nwithout\nRecipient's\nprior\nwritten\nconsent,\nit\nand\nits\nRepresentatives will not disclose to any other person the fact that Recipient is considering the Transaction, that this Agreement\nexists, that the Confidential Information has been made available to Recipient, that discussions or negotiations are taking place\nconcerning the Transaction or any of the terms, conditions or other facts with respect thereto including the status thereof, the\nvaluation, or indicative offers, or proposals.\n2.2\nRequest for Production of Confidential Information. In the event that Recipient is requested or required (by oral\nquestions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other\nsimilar process or by any law, rule or regulation of any governmental agency or regulatory authority) to disclose any of the\nConfidentia Information, Recipient shall provide the Company with prompt written notice of any such request or requirement prior\nto such disclosure so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the\nprovisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Company,\nRecipient is nonetheless,\nlegally compelled to disclose Confidential Information, Recipient may, without liability hereunder, disclose to such tribunal only\nthat\nportion of the Confidential Information which outside counsel advises, in writing, Recipient is legally required to be disclosed,\nprovided that Recipient shall use its best efforts to preserve the confidentiality of the Confidential Information, including, without\nlimitation, by cooperating with the Company to obtain an appropriate protective order or other reliable assurance that confidential\ntreatment will be afforded the Confidential Information by such tribunal.\n2.3\nOwnership. The Confidential Information is owned solely and exclusively by the Company and shall remain the\nexclusive property of the Company. No right, title or interest in or to any of the Confidential Information or any material developed\ntherefrom is transferred to Recipient hereby or by its delivery to Recipient hereunder.\n2.4\nUse. Recipient agrees not to use any Confidentia Information of the Company for any purpose except to evaluate and\nengage in discussions regarding the Transaction. Recipient agrees not to disclose any Confidential Information of the Company to\nanyone, except to those directors, officers, employees, or Representatives of the Recipient who are required to have the information\nin order to evaluate or engage in discussions concerning the Transaction. Recipient shall not reverse engineer, disassemble or\ndecompile any prototypes, software or other tangible objects which embody the Company's Confidential Information and which are\nprovided to the Recipient hereunder.\nNotwithstanding the above, the Recipient may disclose Confidential Information to (1) directors, officers, and employees of its\nparent company or, (2) directors, officers, and employees of a wholly-owned subsidiary of its parent company or, (3) directors,\nofficers employees of the Recipient's wholly owned subsidiaries, or, (4) agents or advisors of Recipient, including, without\nlimitation, attorneys, accountants, consultants, bankers and financial advisors (collectively, "Representatives") who are party to an\nassociated non-disclosure agreement with Recipient, provided that such Representatives have a need to know for the purposes of\nthis Agreement and are under an obligation to hold such information in confidence. Prior to providing the Confidential Information\nto any Representative, the Recipient shall notify each Representative to whom such disclosure is made that such Confidential\nInformation\nis\nreceived in confidence and direct such Representative to maintain such confidentiality and not to use the Confidential\nInformation for any purpose other than its evaluation of the Transaction. Recipient agrees that it will be responsible for any breach\nby its Representatives of the confidentiality and non-use provisions of this Agreement, except to the extent that any such\nRepresentative shall have entered into its own definitive confidentiality agreement with the Company.\n3.\nNo Solicitation. For a period of eighteen (18) months from the date of this Agreement, Recipient will not directly or indirectly\n(and will not cause or permit any person controlled by Recipient to), solicit for employment, offer to hire, employ, hire, otherwise\ncontract for the services of, or otherwise interfere with the employment relationship of any individual who is an employee of the\nCompany or its affiliates and who is named in the Confidential Information Memorandum furnished by Company (or other similar\ndocument) or whom Recipient learns of by name through due diligence efforts provided, however, that this prohibition shall not\napply to any person (i) who responds to a general employment advertisement, social media, or whose resume is posted on social\nmedia sites, or use of employment agencies, not specifically directed at the Company's employees, (ii) who has been terminated by\nthe Company prior to commencement of employment discussions with Recipient or its Representatives, (iii) with whom Recipient is\ncurrently engaged in employment discussion (as evidenced by written documentation in the event of a dispute), or (iv) who was\nsolicited for employment, offered to hire, employed, hired, or otherwise contracted for the services of the Company with the\nCompany's prior written consent.\n4.\nReturn of Confidential Information. Recipient shall, upon accomplishing the limited purpose of evaluating the Transaction, or\nat any time upon the request of the Company, immediately destroy or return to the Company all Confidential Information (including\nnotes, writings and other material developed therefrom by Recipient) and all copies thereof and retain none for its files.\nNotwithstanding the foregoing, neither the Recipient nor its Representatives will be required to erase electronically stored\nConfidential Information that has been saved to a back-up file or other electronic medium in accordance with its or its\nRepresentatives' ordinary back-up practices. Notwithstanding such return or destruction, Recipient shall continue to be bound by\nthis Agreement.\n5. Anti-Clubbing.\n5.1\nThe Recipient hereby represents and warrants that the Recipient is not acting as a broker for any other Person in\nconnection with the Transaction, and is considering the Transaction only for its own account and for the account of its affiliates.\nExcept with the prior written consent of the Company, the Recipient agrees that (i) it will\nnot act as a joint bidder or co-bidder with any other person with respect to the Transaction, and (ii) the Recipient will not enter into\nany discussions, negotiations, agreements, arrangements or understandings (whether written or oral) with any other person regarding\nthe Transaction, other than the Company and its representatives, and the Recipient's Representatives (to the extent permitted\nhereunder).\n5.2\nNotwithstanding anything to the contrary contained herein, without the prior written consent of the Company, the\nRecipient agrees that it will not disclose any Confidential Information to any actual or potential sources of financing (debt, equity or\notherwise).\n6.\nStandstill. Unless approved in advance in writing by the board of directors of the Company, the Recipient agrees that it will\nnot, for a period of one (1) year after the date of this Agreement, directly or indirectly:\n6.1\nmake any statement or proposal to the board of directors of any of the Company, any of the Company's Representatives\nor any of the Company's stockholders regarding, or make any public announcement, proposal or offer (including any "'solicitation"\nof "proxies" as such terms are defined or used in Regulation 14A of the Exchange Act) with respect to, or otherwise solicit, seek or\noffer to effect (including, for the avoidance of doubt, indirectly by means of communication with the press or media) (i) any\nbusiness combination, merger, tender offer, exchange offer or similar transaction involving the Company or any of its subsidiaries,\n(ii) any restructuring, recapitalization, liquidation or similar transaction involving the Company or any of its subsidiaries, (iii) any\nacquisition of any of the Company's loans, debt securities, equity securities or assets, or rights or options to acquire interests in any\nof the Company's loans, debt securities, equity securities or assets, (iv) any proposal to seek representation on the board of directors\nof the Company or otherwise seek to control or influence the management, board of directors or policies of any of the Company, (v)\nany request or proposal to waive, terminate or amend the provisions of this Agreement or (vi) any proposal, arrangement or other\nstatement that is inconsistent with the terms of this Agreement, including this Section 6;\n6.2 instigate, encourage or assist any third party (including forming a "group" within the meaning of Section 13(d)(3) of\nthe\nExchange Act with any such third party) to do, or enter into any discussions or agreements with any third party with respect to, any\nof the actions set forth in clause 6.1 above;\n6.3\nacquire (or offer, propose or agree to acquire), or solicit an offer to acquire, of record or beneficially, directly or\nindirectly, acting alone or in concert, by purchase or otherwise, any loans, debt securities, equity securities or assets of the Company\nor any of its subsidiaries, or rights or options to acquire interests in any of the Company's loans, debt securities, equity securities or\nassets,\nexcept\nthat\nRecipient\nmay\nbeneficially\nown\nup\nto\n4.9%\nof\nthe\nCompany's\noutstanding\nloans,\ndebt\nsecurities\nand\nequity\nsecurities and may own an amount in excess of such percentage solely to the extent resulting exclusively from actions taken by the\nCompany;\n6.4\nacquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange\nor otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its affiliates or (ii) direct or indirect rights,\nwarrants or options to acquire any assets of the Company or any of its affiliates, except for such assets as are then being offered for\nsale by the Company or any of its affiliates;\n6.5\narrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities of the\nCompany or any securities convertible into or exchangeable or exercisable for any voting securities or assets of the Company,\nexcept for such assets as are then being offered for sale by the Company or any of its affiliates; or\n6.6 take any action which would reasonably be expected to require the Company or any of its affiliates to make a public\nannouncement regarding any of the actions set forth in clauses 6.1-6.3 above.\n6.7\nThe foregoing restrictions shall not apply to any of the Recipient's Representatives effecting or recommending\ntransactions in securities (a) in the ordinary course of its business as an investment advisor, broker, dealer in securities, market\nmaker, specialist or block positioner and (b) not at the direction or request of the Recipient.\n6.8\nNotwithstanding the foregoing provisions of this Section 6, the restrictions set forth in this Section 6 shall terminate\nand\nbe of no further force and effect if the Company enters into a definitive agreement with respect to, or publicly announces that it\nplans to enter into, a transaction involving all or a controlling portion of the Company's equity securities or all or substantially all of\nthe Company's assets (whether by merger, consolidation, business combination, tender or exchange offer, recapitalization,\nrestructuring, sale, equity issuance or otherwise).\n7.\nNo Representations or Warranties. The Confidential Information is being provided to Recipient "as is" and without any\nrepresentation or warranty of any kind, either express or implied, regarding the accuracy or completeness or other quality of the\nConfidentia\nInformation.\nIn\nno\nevent\nshall\nthe\nCompany\nor\nits\naffiliates\nor\nany\nof\ntheir\nrespective\ndirectors,\nofficers,\nemployees,\nagents or Representatives (including, without limitation, Guggenheim) have any liability to Recipient relating to or arising out of\nany use of the Confidential Information.\n8. Indemnification. Recipient shall indemnify and hold harmless the Company and its affiliates and their respective directors,\nofficers, employees, agents and Representatives from and against any and all losses, damages, costs and expenses (including,\nwithout\nlimitation,\nreasonable\nattorneys'\nfees\nand\nexpenses)\ncaused\nby\nor\narising\nout\nof\nany\nbreach\nof\nthis\nAgreement\nby\nRecipient\nor any breach for which Recipient is responsible hereunder. In any and all actions, suits, proceedings, claims, demands or judgments\narising out of or related to this agreement the prevailing party shall be entitled to recovery of attorney's fees and other costs and\nexpenses.\n9. Equitable Remedies. Recipient hereby agrees that its failure to perform any obligation or duty which it has agreed to perform\nunder this Agreement will cause irreparable harm to the Company, which harm cannot be adequately compensated for by money\ndamages. It is further agreed by Recipient that an order of specific performance or for injunctive relief against Recipient in the event\nof a breach or default under the terms of this Agreement would be equitable and would not work a hardship on Recipient.\nAccordingly, in the event of a breach or default by Recipient hereunder, the Company, without any bond or other security being\nrequired and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to\ncompe specific performance by, or to obtain injunctive relief against, Recipient, with respect to any obligation or duty herein or\nbreach thereof.\n10.\nNo Licenses Granted. The Company grants no licenses, by implication or otherwise, under any patent, copyright, trademark,\nintellectual property rights, trade secret or other rights by disclosing Confidential Information under this Agreement.\n11. Definitive Agreement. The Company and the Recipient understand and agree that no contract or agreement providing for any\ntransaction involving the Company or Recipient shall be deemed to exist between Recipient and the Company unless and until a\nfinal definitive agreement has been executed and delivered, and the Company and the Recipient hereby waive in advance, any\nclaims (including, without limitation, breach of contract) in connection with any such transaction unless and until Recipient and the\nCompany shall have entered into a final definitive agreement. The Company and the Recipient also agree that unless and until\na\nfinal definitive agreement between Recipient and the Company has been executed and delivered, neither Recipient nor the Company\nwill be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for\nthe matters specifically agreed to herein. The Company reserves the right, in its sole discretion, to reject any and all proposals made\nby\nRecipient\nand\nto\nterminate\ndiscussions\nand\nnegotiations\nwith\nRecipient\nat\nany\ntime.\nRecipient\nfurther\nunderstands\nthat\n(i)\nthe\nCompany shall be free to conduct any process for any transaction involving the Company, if and as the Company in its sole\ndiscretion shall determine (including, without limitation, negotiating with any other interested party and entering into a definitive\nagreement without prior notice to Recipient or any other person), (ii) any procedures relating to such process or transaction may be\nchanged at any time in the Company's sole discretion without notice to Recipient or any other person, and (iii) Recipient shall not\nhave any claims whatsoever against the Company or any of its agents or representatives (including, without limitation,\nGuggenheim) arising out of or relating to any transaction involving the Company (other than any claims against the parties to a\ndefinitive agreement with Recipient in accordance with the terms thereof) nor, unless a definitive agreement is entered into with\nRecipient, against any third party with whom a transaction is entered into.\n12.\nTrading in Securities. Recipient acknowledges that it is aware, and agrees to advise its directors, officers, employees, agents\nand Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities\nlaws prohibit any person who has material, non-public information concerning the Transaction from purchasing or selling securities\nof a company that may be a party to such Transaction or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n13.\nExport. Recipient and its employees shal abide by all export laws, rules and regulations of the United States Government, or\nany agency thereof, including, but not limited to, the Export Control Regulations of the US Department of Commerce, the\nInternational Traffic in Arms Regulations of the US Department of State, and the National Industrial Security Program Operating\nManual (DOD 5220.22-M), in connection with the disclosure, use, export and/or re-export of all information disclosed under this\nAgreement.\n14.\nMiscellaneous. This Agreement shall be binding upon, and inure to the benefit of, and be enforceable by, the parties hereto\nand their respective successors and assigns, but this Agreement shall not be assignable by Recipient without the prior written\nconsent of the Company. This Agreement constitutes the complete agreement between the parties hereto with respect to the subject\nmatter hereof and shall continue in full force and effect until terminated by mutual agreement of the parties hereto. The section\nheadings used herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this\nAgreement. This Agreement shall be construed, performed and enforced in accordance with, and governed by, the internal laws\nof\nthe State of Maryland, without giving effect to the principles of conflicts of law thereof, and each party consents to personal\njurisdiction in such state and voluntarily submits to the jurisdiction of the state and federal courts in Baltimore, Maryland, in any\naction or proceeding relating to this Agreement. Whenever possible, each provision of this Agreement shall be interpreted in such a\nmanner as to be effective and valid under applicable law, but if any provision hereof is held to be invalid, illegal or unenforceable\nunder any applicable law or rule in any jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegality,\nor\nunenforceability, without invalidating the remainder of this Agreement. This Agreement may not be modified or amended and no\nprovision hereof may be waived, in whole or in part, except by a written agreement signed by the parties hereto. No waiver of any\nbreach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any\nsubsequent breach or default of the same or similar nature. This Agreement may be executed in any number of counterparts, each of\nwhich shall be deemed an original, but all of which taken together shall constitute one and the same instrument.\n15. Term. This Agreement shall remain in full force and effect for two (2) years from the date hereof.\nIN WITNESS WHEREOF, the parties hereto have duly executed this Agreement effective as of the date first set forth above.\nThe KeyW Holding Corporation\nJacobs Engineering Group Inc.\nBy:\n/s/ Philip Luci, Jr.\nBy:\n/s/ Jeff Goldfarb\nTitle:\nEVP & General Counsel\nTitle:\nSVP, Corporate Development	EX-99.(D)(2) 10 nc10001202x4_ex-d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nExecution Version\nNON-DISCLOSURE AGREEMENT\nThis Non-disclosure Agreement (the “Agreement”) is made and entered into effective as of February 14, 2019, by and between\nThe KeyW Holding Corporation (collectively with its subsidiaries and controlled affiliates, the “Company”), and Jacobs\nEngineering Group Inc. (including, where the context requires, its subsidiaries and affiliates, “Recipient”). In consideration of the\nmutual covenants and conditions contained herein, to induce the Company to provide certain information to Recipient and for other\ngood and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties to this Agreement do\nhereby agree as follows:\n1.\nDefinition of Confidential Information. For all purposes of this Agreement, the term “Confidential Information” shall\ncollectively refer to all information or material disclosed or provided by the Company to Recipient, either orally or in writing, or\nobtained by Recipient from a third party or any other source, regardless of the manner in which it is furnished, concerning any\naspect of the business or affairs of the Company or its “affiliates” (as such term is defined in Rule 12b-2 under the Securities\nExchange Act of 1934, as amended (the “Exchange Act”)). Confidential Information also includes any notes, analyses,\ncompilations, data, forecasts, reports, summaries, studies or other material or documents prepared by Recipient which contain,\nreflect or are based, in whole or in part, on the Confidential Information.\nNotwithstanding the foregoing, Confidential Information shall not include information or material that (i) is publicly available\nor becomes publicly available through no action or fault of Recipient, (ii) was already in Recipient’s possession or known to\nRecipient prior to being disclosed or provided to Recipient by or on behalf of the Company, provided, that, the source of such\ninformation or material was not bound by a contractual, legal or fiduciary obligation of confidentiality to the Company or any other\nparty with respect thereto, (iii) was or is obtained by Recipient from a third party, provided, that, such third party was not bound by\na contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information or\nmaterial, or (iv) is independently developed by the Recipient without use of or reference to the Confidential Information.\n2. Restrictions on Disclosure and Use. Recipient does hereby covenant and agree with the Company as follows:\n2.1 Non-disclosure. Recipient shall keep strictly confidential and shall not disclose, or cause or permit to be disclosed, to\nany person or entity, (i) any information about a potential transaction between Recipient and the Company (the “Transaction”) or the\nfact that Recipient has received, or may receive, Confidential Information and is considering the Transaction and all discussions\nbetween the Company and Recipient related thereto, including the existence of this Agreement, except that (subject to Section 2.2\nbelow) Recipient may make such disclosure if it has received the reasonable written advice of its outside counsel that such\ndisclosure must be made in order that Recipient not commit a violation of law, and (ii) the Confidential Information, except to those\nofficers, employees or other authorized Representatives (as defined herein) and who shall agree to be bound by the terms of this\nAgreement, and except as otherwise consented to in writing by the Company. Recipient shall take all actions reasonably necessary\nto ensure that the Confidential Information remains strictly confidential and is not disclosed to or seen, used or obtained by any\nperson or entity except in accordance with the terms of this Agreement. Recipient agrees not to contact any shareholders, directors,\nofficers, employees, agents, customers, or suppliers of the Company or its affiliates with respect to the Transaction or for the\npurpose of obtaining information for use in evaluating the Transaction, without the Company’s prior written consent. Recipient\nfurther agrees that all inquiries, requests for information and other communications concerning the Transaction shall be made only\nthrough Guggenheim Securities, LLC (“Guggenheim”). Company agrees that, without Recipient’s prior written consent, it and its\nRepresentatives will not disclose to any other person the fact that Recipient is considering the Transaction, that this Agreement\nexists, that the Confidential Information has been made available to Recipient, that discussions or negotiations are taking place\nconcerning the Transaction or any of the terms, conditions or other facts with respect thereto including the status thereof, the\nvaluation, or indicative offers, or proposals.\n2.2\nRequest for Production of Confidential Information. In the event that Recipient is requested or required (by oral\nquestions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other\nsimilar process or by any law, rule or regulation of any governmental agency or regulatory authority) to disclose any of the\nConfidential Information, Recipient shall provide the Company with prompt written notice of any such request or requirement prior\nto such disclosure so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the\nprovisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Company,\nRecipient is nonetheless,\nlegally compelled to disclose Confidential Information, Recipient may, without liability hereunder, disclose to such tribunal only\nthat portion of the Confidential Information which outside counsel advises, in writing, Recipient is legally required to be disclosed,\nprovided that Recipient shall use its best efforts to preserve the confidentiality of the Confidential Information, including, without\nlimitation, by cooperating with the Company to obtain an appropriate protective order or other reliable assurance that confidential\ntreatment will be afforded the Confidential Information by such tribunal.\n2.3\nOwnership. The Confidential Information is owned solely and exclusively by the Company and shall remain the\nexclusive property of the Company. No right, title or interest in or to any of the Confidential Information or any material developed\ntherefrom is transferred to Recipient hereby or by its delivery to Recipient hereunder.\n2.4 Use. Recipient agrees not to use any Confidential Information of the Company for any purpose except to evaluate and\nengage in discussions regarding the Transaction. Recipient agrees not to disclose any Confidential Information of the Company to\nanyone, except to those directors, officers, employees, or Representatives of the Recipient who are required to have the information\nin order to evaluate or engage in discussions concerning the Transaction. Recipient shall not reverse engineer, disassemble or\ndecompile any prototypes, software or other tangible objects which embody the Company’s Confidential Information and which are\nprovided to the Recipient hereunder.\nNotwithstanding the above, the Recipient may disclose Confidential Information to (1) directors, officers, and employees of its\nparent company or, (2) directors, officers, and employees of a wholly-owned subsidiary of its parent company or, (3) directors,\nofficers employees of the Recipient’s wholly owned subsidiaries, or, (4) agents or advisors of Recipient, including, without\nlimitation, attorneys, accountants, consultants, bankers and financial advisors (collectively, “Representatives”) who are party to an\nassociated non-disclosure agreement with Recipient, provided that such Representatives have a need to know for the purposes of\nthis Agreement and are under an obligation to hold such information in confidence. Prior to providing the Confidential Information\nto any Representative, the Recipient shall notify each Representative to whom such disclosure is made that such Confidential\nInformation is received in confidence and direct such Representative to maintain such confidentiality and not to use the Confidential\nInformation for any purpose other than its evaluation of the Transaction. Recipient agrees that it will be responsible for any breach\nby its Representatives of the confidentiality and non-use provisions of this Agreement, except to the extent that any such\nRepresentative shall have entered into its own definitive confidentiality agreement with the Company.\n3. No Solicitation. For a period of eighteen (18) months from the date of this Agreement, Recipient will not directly or indirectly\n(and will not cause or permit any person controlled by Recipient to), solicit for employment, offer to hire, employ, hire, otherwise\ncontract for the services of, or otherwise interfere with the employment relationship of any individual who is an employee of the\nCompany or its affiliates and who is named in the Confidential Information Memorandum furnished by Company (or other similar\ndocument) or whom Recipient learns of by name through due diligence efforts provided, however, that this prohibition shall not\napply to any person (i) who responds to a general employment advertisement, social media, or whose resume is posted on social\nmedia sites, or use of employment agencies, not specifically directed at the Company’s employees, (ii) who has been terminated by\nthe Company prior to commencement of employment discussions with Recipient or its Representatives, (iii) with whom Recipient is\ncurrently engaged in employment discussion (as evidenced by written documentation in the event of a dispute), or (iv) who was\nsolicited for employment, offered to hire, employed, hired, or otherwise contracted for the services of the Company with the\nCompany’s prior written consent.\n4. Return of Confidential Information. Recipient shall, upon accomplishing the limited purpose of evaluating the Transaction, or\nat any time upon the request of the Company, immediately destroy or return to the Company all Confidential Information (including\nnotes, writings and other material developed therefrom by Recipient) and all copies thereof and retain none for its files.\nNotwithstanding the foregoing, neither the Recipient nor its Representatives will be required to erase electronically stored\nConfidential Information that has been saved to a back-up file or other electronic medium in accordance with its or its\nRepresentatives’ ordinary back-up practices. Notwithstanding such return or destruction, Recipient shall continue to be bound by\nthis Agreement.\n5. Anti-Clubbing.\n5.1\nThe Recipient hereby represents and warrants that the Recipient is not acting as a broker for any other Person in\nconnection with the Transaction, and is considering the Transaction only for its own account and for the account of its affiliates.\nExcept with the prior written consent of the Company, the Recipient agrees that (i) it will\nnot act as a joint bidder or co-bidder with any other person with respect to the Transaction, and (ii) the Recipient will not enter into\nany discussions, negotiations, agreements, arrangements or understandings (whether written or oral) with any other person regarding\nthe Transaction, other than the Company and its representatives, and the Recipient’s Representatives (to the extent permitted\nhereunder).\n5.2\nNotwithstanding anything to the contrary contained herein, without the prior written consent of the Company, the\nRecipient agrees that it will not disclose any Confidential Information to any actual or potential sources of financing (debt, equity or\notherwise).\n6. Standstill. Unless approved in advance in writing by the board of directors of the Company, the Recipient agrees that it will\nnot, for a period of one (1) year after the date of this Agreement, directly or indirectly:\n6.1\nmake any statement or proposal to the board of directors of any of the Company, any of the Company’s Representatives\nor any of the Company’s stockholders regarding, or make any public announcement, proposal or offer (including any “solicitation”\nof “proxies” as such terms are defined or used in Regulation 14A of the Exchange Act) with respect to, or otherwise solicit, seek or\noffer to effect (including, for the avoidance of doubt, indirectly by means of communication with the press or media) (i) any\nbusiness combination, merger, tender offer, exchange offer or similar transaction involving the Company or any of its subsidiaries,\n(ii) any restructuring, recapitalization, liquidation or similar transaction involving the Company or any of its subsidiaries, (iii) any\nacquisition of any of the Company’s loans, debt securities, equity securities or assets, or rights or options to acquire interests in any\nof the Company’s loans, debt securities, equity securities or assets, (iv) any proposal to seek representation on the board of directors\nof the Company or otherwise seek to control or influence the management, board of directors or policies of any of the Company, (v)\nany request or proposal to waive, terminate or amend the provisions of this Agreement or (vi) any proposal, arrangement or other\nstatement that is inconsistent with the terms of this Agreement, including this Section 6;\n6.2 instigate, encourage or assist any third party (including forming a “group” within the meaning of Section 13(d)(3) of the\nExchange Act with any such third party) to do, or enter into any discussions or agreements with any third party with respect to, any\nof the actions set forth in clause 6.1 above;\n6.3\nacquire (or offer, propose or agree to acquire), or solicit an offer to acquire, of record or beneficially, directly or\nindirectly, acting alone or in concert, by purchase or otherwise, any loans, debt securities, equity securities or assets of the Company\nor any of its subsidiaries, or rights or options to acquire interests in any of the Company’s loans, debt securities, equity securities or\nassets, except that Recipient may beneficially own up to 4.9% of the Company’s outstanding loans, debt securities and equity\nsecurities and may own an amount in excess of such percentage solely to the extent resulting exclusively from actions taken by the\nCompany;\n6.4\nacquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange\nor otherwise, (i) any of the assets, tangible or intangible, of the Company or any of its affiliates or (ii) direct or indirect rights,\nwarrants or options to acquire any assets of the Company or any of its affiliates, except for such assets as are then being offered for\nsale by the Company or any of its affiliates;\n6.5\narrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting securities of the\nCompany or any securities convertible into or exchangeable or exercisable for any voting securities or assets of the Company,\nexcept for such assets as are then being offered for sale by the Company or any of its affiliates; or\n6.6\ntake any action which would reasonably be expected to require the Company or any of its affiliates to make a public\nannouncement regarding any of the actions set forth in clauses 6.1 -6 .3 above.\n6.7\nThe foregoing restrictions shall not apply to any of the Recipient’s Representatives effecting or recommending\ntransactions in securities (a) in the ordinary course of its business as an investment advisor, broker, dealer in securities, market\nmaker, specialist or block positioner and (b) not at the direction or request of the Recipient.\n6.8 Notwithstanding the foregoing provisions of this Section 6, the restrictions set forth in this Section 6 shall terminate and\nbe of no further force and effect if the Company enters into a definitive agreement with respect to, or publicly announces that it\nplans to enter into, a transaction involving all or a controlling portion of the Company’s equity securities or all or substantially all of\nthe Company’s assets (whether by merger, consolidation, business combination, tender or exchange offer, recapitalization,\nrestructuring, sale, equity issuance or otherwise).\n7.\nNo Representations or Warranties. The Confidential Information is being provided to Recipient “as is” and without any\nrepresentation or warranty of any kind, either express or implied, regarding the accuracy or completeness or other quality of the\nConfidential Information. In no event shall the Company or its affiliates or any of their respective directors, officers, employees,\nagents or Representatives (including, without limitation, Guggenheim) have any liability to Recipient relating to or arising out of\nany use of the Confidential Information.\n8. Indemnification. Recipient shall indemnify and hold harmless the Company and its affiliates and their respective directors,\nofficers, employees, agents and Representatives from and against any and all losses, damages, costs and expenses (including,\nwithout limitation, reasonable attorneys’ fees and expenses) caused by or arising out of any breach of this Agreement by Recipient\nor any breach for which Recipient is responsible hereunder. In any and all actions, suits, proceedings, claims, demands or judgments\narising out of or related to this agreement the prevailing party shall be entitled to recovery of attorney’s fees and other costs and\nexpenses.\n9. Equitable Remedies. Recipient hereby agrees that its failure to perform any obligation or duty which it has agreed to perform\nunder this Agreement will cause irreparable harm to the Company, which harm cannot be adequately compensated for by money\ndamages. It is further agreed by Recipient that an order of specific performance or for injunctive relief against Recipient in the event\nof a breach or default under the terms of this Agreement would be equitable and would not work a hardship on Recipient.\nAccordingly, in the event of a breach or default by Recipient hereunder, the Company, without any bond or other security being\nrequired and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to\ncompel specific performance by, or to obtain injunctive relief against, Recipient, with respect to any obligation or duty herein or\nbreach thereof.\n10. No Licenses Granted. The Company grants no licenses, by implication or otherwise, under any patent, copyright, trademark,\nintellectual property rights, trade secret or other rights by disclosing Confidential Information under this Agreement.\n11. Definitive Agreement. The Company and the Recipient understand and agree that no contract or agreement providing for any\ntransaction involving the Company or Recipient shall be deemed to exist between Recipient and the Company unless and until a\nfinal definitive agreement has been executed and delivered, and the Company and the Recipient hereby waive in advance, any\nclaims (including, without limitation, breach of contract) in connection with any such transaction unless and until Recipient and the\nCompany shall have entered into a final definitive agreement. The Company and the Recipient also agree that unless and until a\nfinal definitive agreement between Recipient and the Company has been executed and delivered, neither Recipient nor the Company\nwill be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for\nthe matters specifically agreed to herein. The Company reserves the right, in its sole discretion, to reject any and all proposals made\nby Recipient and to terminate discussions and negotiations with Recipient at any time. Recipient further understands that (i) the\nCompany shall be free to conduct any process for any transaction involving the Company, if and as the Company in its sole\ndiscretion shall determine (including, without limitation, negotiating with any other interested party and entering into a definitive\nagreement without prior notice to Recipient or any other person), (ii) any procedures relating to such process or transaction may be\nchanged at any time in the Company’s sole discretion without notice to Recipient or any other person, and (iii) Recipient shall not\nhave any claims whatsoever against the Company or any of its agents or representatives (including, without limitation,\nGuggenheim) arising out of or relating to any transaction involving the Company (other than any claims against the parties to a\ndefinitive agreement with Recipient in accordance with the terms thereof) nor, unless a definitive agreement is entered into with\nRecipient, against any third party with whom a transaction is entered into.\n12. Trading in Securities. Recipient acknowledges that it is aware, and agrees to advise its directors, officers, employees, agents\nand Representatives who are informed as to the matters which are the subject of this Agreement, that the United States securities\nlaws prohibit any person who has material, non-public information concerning the Transaction from purchasing or selling securities\nof a company that may be a party to such Transaction or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n13. Export. Recipient and its employees shall abide by all export laws, rules and regulations of the United States Government, or\nany agency thereof, including, but not limited to, the Export Control Regulations of the US Department of Commerce, the\nInternational Traffic in Arms Regulations of the US Department of State, and the National Industrial Security Program Operating\nManual (DOD 5220.22 -M), in connection with the disclosure, use, export and/or re-export of all information disclosed under this\nAgreement.\n14. Miscellaneous. This Agreement shall be binding upon, and inure to the benefit of, and be enforceable by, the parties hereto\nand their respective successors and assigns, but this Agreement shall not be assignable by Recipient without the prior written\nconsent of the Company. This Agreement constitutes the complete agreement between the parties hereto with respect to the subject\nmatter hereof and shall continue in full force and effect until terminated by mutual agreement of the parties hereto. The section\nheadings used herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this\nAgreement. This Agreement shall be construed, performed and enforced in accordance with, and governed by, the internal laws of\nthe State of Maryland, without giving effect to the principles of conflicts of law thereof, and each party consents to personal\njurisdiction in such state and voluntarily submits to the jurisdiction of the state and federal courts in Baltimore, Maryland, in any\naction or proceeding relating to this Agreement. Whenever possible, each provision of this Agreement shall be interpreted in such a\nmanner as to be effective and valid under applicable law, but if any provision hereof is held to be invalid, illegal or unenforceable\nunder any applicable law or rule in any jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegality,\nor unenforceability, without invalidating the remainder of this Agreement. This Agreement may not be modified or amended and no\nprovision hereof may be waived, in whole or in part, except by a written agreement signed by the parties hereto. No waiver of any\nbreach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any\nsubsequent breach or default of the same or similar nature. This Agreement may be executed in any number of counterparts, each of\nwhich shall be deemed an original, but all of which taken together shall constitute one and the same instrument.\n15. Term. This Agreement shall remain in full force and effect for two (2) years from the date hereof.\nIN WITNESS WHEREOF, the parties hereto have duly executed this Agreement effective as of the date first set forth above.\nThe KeyW Holding Corporation\nJacobs Engineering Group Inc.\nBy:\n/s/ Philip Luci, Jr.\nBy:\n/s/ Jeff Goldfarb\nTitle:\nEVP & General Counsel\nTitle:\nSVP, Corporate Development
+9a7975811ae1ee69f6fb40c4e14c69a1.pdf	effective_date jurisdiction party term	EX-99.(E)(3) 2 d334994dex99e3.htm EX-(E)(3)\nExhibit (e)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made as of November 17, 2016, by and between Nimble\nStorage, Inc. a corporation organized under the laws of Delaware (the “Company”), and Hewlett Packard Enterprise Company, a Delaware\ncorporation (“HPE”).\nHPE is evaluating forms of a potential transaction with respect to the Company (a “Transaction”), in connection with which each may\ndisclose certain information, including Confidential 1nformation (as defined below), to the other. As a condition to such information being\nfurnished to each party, its affiliates, its subsidiaries and other individuals and entities controlled, directly or indirectly, by such party\n(“Affiliates”), and the respective directors, employees, consultants, accountants, attorneys and advisors of such party and its Affiliates with\nwhich such party has entered into confidentiality agreements with material terms that are substantially similar to those in this Agreement\n(collectively with such Affiliates, “Associates”), each party agrees such information shall be provided to Associates for the limited purpose of\nevaluating, negotiating or consummating the Transaction, to treat the other party’s Confidential Information in accordance with the provisions of\nthis Agreement and to take or abstain from taking certain other actions, as described in this Agreement. The foregoing definition of Associates\nwho may be furnished confidential information hereby specifically excludes third parties who provide stockholder representation services. A\nparty disclosing Confidential Information hereunder is referred to herein as “the disclosing party” and a party receiving the Confidential\nInformation of a disclosing party hereunder is referred to herein as “the receiving party.”\n1. Definition of Confidential Information; Use and Disclosure.\n“Confidential Information” means any information, technical data or know-how, including, but not limited to, that which relates to\nresearch, product or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other\nstrategic partners, stockholders, markets, software, know-how, developments, inventions, processes, designs, drawings, engineering, hardware\nconfiguration information, marketing, finances, notes, analyses or studies and all tangible and intangible embodiments thereof of any kind\nwhatsoever, whether conveyed in writing or orally by the disclosing party or its Associates to the receiving party or its Associates in connection\nwith the evaluation of a Transaction. The term “Confidential Information” shall be deemed to include those portions of any notes, analyses,\ncompilations, studies, interpretations, memoranda or other documents (regardless of the form thereof) prepared by the receiving party or its\nAssociates which contain, reflect or are based upon, in whole or in part, any information furnished to the receiving party or its Associates\npursuant hereto. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is\nin the possession of the receiving party or its Associates at the time of disclosure, as shown by files and records immediately prior to the time of\ndisclosure; (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action\nof the receiving party or its Associates; (iii) is obtained by the receiving party or its Associates from a source other than the disclosing party or its\nAssociates, which source would not be reasonably expected by the\nreceiving party or its Associates to have any obligation of confidentiality to the disclosing party with respect to such information; (iv) is\napproved, in writing, for release by the disclosing party; or (v) the receiving party or its Associates can document was independently developed\nby the receiving party or its Associates without use of or reference to the disclosing party’s Confidential Information.\nEach of the parties hereto agree not to use the Confidential Information disclosed to it by the other party or its Associates except in\nconnection with preparing a proposal for and any discussions of a Transaction or as otherwise permitted hereunder. Neither party will disclose\nany Confidential Information of the other party to third parties except those of its Associates who are required to have the information in order to\nevaluate and discuss a Transaction. The receiving party shall inform its Associates of the confidential nature of the Confidential Information and\nshall instruct them to treat the information confidentially. The receiving party shall be responsible for any breach of this Agreement by its\nAssociates and agrees, at its sole expense, to take all commercially reasonable measures to restrain its Associates from disclosure or use of the\nConfidential Information in breach of this Agreement. Each party agrees that it will take commercially reasonable measures to protect the\nconfidentiality of, and to avoid having Confidential Information of the other party enter the public domain, become publicly available, or be held\nby persons not authorized hereunder to have such Confidential Information, which measures shall include at least the same degree of care that the\nreceiving party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party in writing of\nany misuse or misappropriation of such Confidential Information of the other party that may come to its attention.\n2. Nonpublicity. The existence and the terms of this Agreement, any Transaction, the fact that any Confidential Information has been\nprovided to the other party, and the existence, nature and status of any discussions between the parties shall be treated as Confidential\nInformation hereunder, shall be maintained in strict confidence by the parties hereto and by their respective Associates and, subject to Section 3\nof this Agreement, shall not be disclosed to any third party.\n3. Required Disclosure. In the event that a receiving party or its Associates is or becomes legally compelled under applicable law,\nregulation or securities exchange listing agreement, or by a competent governmental, administrative or regulatory authority or in a proceeding\nbefore a court, arbitrator or administrative agency, whether or not as a result of a Transaction to which the Company has consented, to disclose\nany portion of the Confidential Information of a disclosing party, that discussions or negotiations between the parties hereto are taking place or\nhave taken place, or any of the terms, conditions or other facts with respect to a Transaction, including the status thereof, the receiving party will,\nand will direct its Associates to, provide the disclosing party with prompt written notice (unless prohibited by law) of such legal compulsion, and\nshall delay disclosure, if and to the extent permitted or practicable, until the disclaiming party has had an opportunity to seek a protective order or\nother appropriate remedy or to waive compliance by the receiving party and/or its Associates with the relevant provisions of this Agreement. In\nthe event that a protective order or other remedy is not obtained in such a proceeding, or the disclosing party fails to waive compliance with the\nrelevant provisions of this Agreement, the receiving party agrees that it will, and will direct its Associates to, disclose only that Confidential\nInformation of the disclosing party which its counsel advises\nis legally required to be disclosed and will exercise commercially reasonable efforts, and will direct its Associates to exercise their commercially\nreasonable efforts, at the request and expense of the disclosing party, to cooperate with the disclosing party in its efforts to obtain reliable\nassurance that confidential treatment will be accorded the Confidential Information which is so disclosed.\n4. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret\nor other intellectual property right, nor shall this Agreement grant either party any rights in or to the other party’s Confidential Information,\nexcept the limited right to review such Confidential Information solely for the purposes of determining whether to enter into, and the undertaking\nof or the advising with respect to, a Transaction.\n5. No Representation of Accuracy.· Each party acknowledges that neither the other party nor any of its Associates has made any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information made available by the other\nparty or its Associates. Each party agrees that, except as set forth in a definitive agreement executed by the parties, neither party nor any of its\nAssociates shall have any liability to the other party or to any of its Associates relating to or resulting from the use of such other party’s\nConfidential Information or any errors therein m omissions therefrom. Only those representations or warranties made in a definitive agreement,\nwhen, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n6. Definitive Agreements. Each party acknowledges and agrees that other than with respect to the matters specifically set forth herein, no\ncontract or agreement providing a Transaction shall be deemed to exist between the parties unless and until a definitive agreement has been\nexecuted and delivered. The parties further agree that each party reserves the right, in its sole discretion, to reject any and all proposals made by\nthe other party or any of its Associates with regard to a Transaction and to terminate discussions or negotiations at any time.\n7. Similar Products. Each disclosing party acknowledges that the receiving party or its Associates may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the disclosing party’s Confidential Information.\nNothing in this Agreement will prohibit the receiving party or its Associates from developing, manufacturing, marketing, selling, servicing or\nsupporting or having developed, manufactured, marketed, sold, serviced or supported for it products, concepts, systems or techniques that are\nsimilar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the disclosing party’s Confidential\nInformation, provided that the receiving party and its Associates do not use any of the disclosing party’s Confidential Information in connection\nwith such activities. Neither party nor its respective Associates shall have any obligation to limit or restrict the assignment of its respective\nemployees or consultants as a result of their having had access to Confidential Information of the other party or its Associates.\n8. Residuals. The receiving party’s employees may use any Residuals for any purpose, provided that this paragraph does not grant or\nimply any license or other right to use any patent, trademark, copyright, mask work right or other intellectual property right. “Residuals” means\ninformation that is retained, as general knowledge and experience, in the\nunaided memory of the receiving party’s employees who have had access to the disclosing party’s Confidential Information within the scope of\nthe receiving party’s obligations under this Agreement, but who no longer have access to such Confidential Information. However, Residuals\ndoes not include any detailed financial or personnel data. The ability to use Residuals shall be narrowly construed, is intended only to alleviate\nthe possibility of inadvertent breach of this Agreement as a result of routine, unaided memory retention, and does not allow the receiving party to\nuse or disclose information known to the receiving party to be Confidential Information that is subject to this Agreement. The memory of an\nemployee of the receiving party is unaided if such employee has not intentionally memorized the Confidential Information or retained notes or\nother aids to such memory,\n9. Commercial Relationship Use. Notwithstanding any obligations or restrictions to the contrary contained herein, if during due diligence\nreview, HPE learns of flaws or problems with Company’s products, software, services or intellectual property rights, the Associates of HPE\nevaluating the potential Transaction may share such information with the Associates of HPE who are responsible for purchasing such products,\nsoftware or services or licensing such intellectual property on behalf of HPE (“Purchasing Associates”). For avoidance of doubt, Purchasing\nAssociates of the receiving party that receive such information agree to be bound by the terms of this Agreement. In the event any Confidential\nInformation is disclosed pursuant to this Section 9, HPE shall notify the Company of any information shared with Associates of HPE within\nfifteen (15) business days after such disclosure.\n10. Termination of Discussions. Following written notice by one party to another of the termination of discussions between the parties,\nupon written request of the disclosing party, the receiving party shall take reasonable steps to instruct all persons involved in the Transaction to\ndestroy all Confidential Information furnished to the receiving party by or on behalf of the disclosing party pursuant to this Agreement.\nNotwithstanding the foregoing, the receiving party and its Associates may retain any Confidential Information to the extent required pursuant to\nthe regulatory compliance or record retention policies of such receiving party or Associate.\n11. Term. The foregoing commitments of either party in this Agreement regarding the confidentiality and non-use of Confidential\nInformation shall survive any termination of discussions between the parties and shall continue for a period of eighteen (18) months following\nthe date of this Agreement.\n12. Attorney-Client Privilege. To the extent that any Confidential Information of the disclosing party may include materials subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or\ngovernmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their\ndesire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine and other\napplicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine,\n13. Notice. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in\nwriting and shall he deemed properly given on the day of delivery (or, if such date is not a business day, on the first business day after delivery) if\ndelivered by hand or email (if submitting by email, substantive discussions to be included only in password protected attachments) (with\nconfirmation of delivery), or on the first business day after being sent by overnight courier or overnight express delivery service (in each case,\nwith confirmation of delivery) to the address set forth beneath the name of such party below (or to such other address as such party shall have\nspecified in a written notice given to the other parties hereto):\nif to HPE:\nHewlett Packard Enterprise Company\n3000 Hanover Street\nPalo Alto, CA 94304\nAttn: General Counsel\nif to the Company:\nNimble Storage, Inc.\n211 River Oaks Parkway\nSan Jose, CA 95134\nAttn: General Counsel\nGC@nimblestorage.com\n14. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the\nState of Delaware applicable to agreements made and to be performed within that state. Each of the parties hereby agrees and irrevocably\nconsents to personal jurisdiction and venue in any federal or state court within Wilmington, Delaware, having subject matter jurisdiction, for the\npurposes of any action, suit or proceeding arising out of or relating to this agreement. To the fullest extent permitted by law, each of the parties\nhereby agrees to waive trial by jury in any action proceeding or counterclaim brought by or on behalf of either party with respect to any matter\nwhatsoever relating to this Agreement.\n15. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto and supersedes all other prior\nagreements and understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof.\nAll modifications of, waivers of and amendments to this letter agreement must be in writing and signed by both parties hereto.\n16. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument. Any counterpart signed by an authorized representative of a party and delivered to the other party by\nemail, facsimile, PDF, or other similar electronic means shall be deemed an original counterpart and duly delivered.\n[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have executed this Mutual Non-Disclosure Agreement as of the day and year first above written.\nNIMBLE STORAGE, INC.\nBy: /s/ Suresh Vasudevan\nName: Suresh Vasudevan\nTitle: CEO\nHEWLETT PACKARD ENTERPRISE\nCOMPANY\nBy: /s/ Vishal Bhagwati\nName: Vishal Bhagwati\nTitle: SVP – Corporate Development	EX-99.(E)(3) 2 d334994dex99e3.htm EX-(E)(3)\nExhibit (e)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made as of November 17, 2016, by and between Nimble\nStorage, Inc. a corporation organized under the laws of Delaware (the “Company”), and Hewlett Packard Enterprise Company, a Delaware\ncorporation (“HPE”).\nHPE is evaluating forms of a potential transaction with respect to the Company (a “Transaction™), in connection with which each may\ndisclose certain information, including Confidential 1nformation (as defined below), to the other. As a condition to such information being\nfurnished to each party, its affiliates, its subsidiaries and other individuals and entities controlled, directly or indirectly, by such party\n(“Affiliates™), and the respective directors, employees, consultants, accountants, attorneys and advisors of such party and its Affiliates with\nwhich such party has entered into confidentiality agreements with material terms that are substantially similar to those in this Agreement\n(collectively with such Affiliates, “Associates”), each party agrees such information shall be provided to Associates for the limited purpose of\nevaluating, negotiating or consummating the Transaction, to treat the other party’s Confidential Information in accordance with the provisions of\nthis Agreement and to take or abstain from taking certain other actions, as described in this Agreement. The foregoing definition of Associates\nwho may be furnished confidential information hereby specifically excludes third parties who provide stockholder representation services. A\nparty disclosing Confidential Information hereunder is referred to herein as “the disclosing party” and a party receiving the Confidential\nInformation of a disclosing party hereunder is referred to herein as “the receiving party.”\n1. Definition of Confidential Information; Use and Disclosure.\n“Confidential Information” means any information, technical data or know-how, including, but not limited to, that which relates to\nresearch, product or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other\nstrategic partners, stockholders, markets, software, know-how, developments, inventions, processes, designs, drawings, engineering, hardware\nconfiguration information, marketing, finances, notes, analyses or studies and all tangible and intangible embodiments thereof of any kind\nwhatsoever, whether conveyed in writing or orally by the disclosing party or its Associates to the receiving party or its Associates in connection\nwith the evaluation of a Transaction. The term “Confidential Information” shall be deemed to include those portions of any notes, analyses,\ncompilations, studies, interpretations, memoranda or other documents (regardless of the form thereof) prepared by the receiving party or its\nAssociates which contain, reflect or are based upon, in whole or in part, any information furnished to the receiving party or its Associates\npursuant hereto. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is\nin the possession of the receiving party or its Associates at the time of disclosure, as shown by files and records immediately prior to the time of\ndisclosure; (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action\nof the receiving party or its Associates; (iii) is obtained by the receiving party or its Associates from a source other than the disclosing party or its\nAssociates, which source would not be reasonably expected by the\nreceiving party or its Associates to have any obligation of confidentiality to the disclosing party with respect to such information; (iv) is\napproved, in writing, for release by the disclosing party; or (v) the receiving party or its Associates can document was independently developed\nby the receiving party or its Associates without use of or reference to the disclosing party’s Confidential Information.\nEach of the parties hereto agree not to use the Confidential Information disclosed to it by the other party or its Associates except in\nconnection with preparing a proposal for and any discussions of a Transaction or as otherwise permitted hereunder. Neither party will disclose\nany Confidential Information of the other party to third parties except those of its Associates who are required to have the information in order to\nevaluate and discuss a Transaction. The receiving party shall inform its Associates of the confidential nature of the Confidential Information and\nshall instruct them to treat the information confidentially. The receiving party shall be responsible for any breach of this Agreement by its\nAssociates and agrees, at its sole expense, to take all commercially reasonable measures to restrain its Associates from disclosure or use of the\nConfidential Information in breach of this Agreement. Each party agrees that it will take commercially reasonable measures to protect the\nconfidentiality of, and to avoid having Confidential Information of the other party enter the public domain, become publicly available, or be held\nby persons not authorized hereunder to have such Confidential Information, which measures shall include at least the same degree of care that the\nreceiving party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party in writing of\nany misuse or misappropriation of such Confidential Information of the other party that may come to its attention.\n2. Nonpublicity. The existence and the terms of this Agreement, any Transaction, the fact that any Confidential Information has been\nprovided to the other party, and the existence, nature and status of any discussions between the parties shall be treated as Confidential\nInformation hereunder, shall be maintained in strict confidence by the parties hereto and by their respective Associates and, subject to Section 3\nof this Agreement, shall not be disclosed to any third party.\n3. Required Disclosure. In the event that a receiving party or its Associates is or becomes legally compelled under applicable law,\nregulation or securities exchange listing agreement, or by a competent governmental, administrative or regulatory authority or in a proceeding\nbefore a court, arbitrator or administrative agency, whether or not as a result of a Transaction to which the Company has consented, to disclose\nany portion of the Confidential Information of a disclosing party, that discussions or negotiations between the parties hereto are taking place or\nhave taken place, or any of the terms, conditions or other facts with respect to a Transaction, including the status thereof, the receiving party will,\nand will direct its Associates to, provide the disclosing party with prompt written notice (unless prohibited by law) of such legal compulsion, and\nshall delay disclosure, if and to the extent permitted or practicable, until the disclaiming party has had an opportunity to seek a protective order or\nother appropriate remedy or to waive compliance by the receiving party and/or its Associates with the relevant provisions of this Agreement. In\nthe event that a protective order or other remedy is not obtained in such a proceeding, or the disclosing party fails to waive compliance with the\nrelevant provisions of this Agreement, the receiving party agrees that it will, and will direct its Associates to, disclose only that Confidential\nInformation of the disclosing party which its counsel advises\nis legally required to be disclosed and will exercise commercially reasonable efforts, and will direct its Associates to exercise their commercially\nreasonable efforts, at the request and expense of the disclosing party, to cooperate with the disclosing party in its efforts to obtain reliable\nassurance that confidential treatment will be accorded the Confidential Information which is so disclosed.\n4. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret\nor other intellectual property right, nor shall this Agreement grant either party any rights in or to the other party’s Confidential Information,\nexcept the limited right to review such Confidential Information solely for the purposes of determining whether to enter into, and the undertaking\nof or the advising with respect to, a Transaction.\n5. No Representation of Accuracy.- Each party acknowledges that neither the other party nor any of its Associates has made any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information made available by the other\nparty or its Associates. Each party agrees that, except as set forth in a definitive agreement executed by the parties, neither party nor any of its\nAssociates shall have any liability to the other party or to any of its Associates relating to or resulting from the use of such other party’s\nConfidential Information or any errors therein m omissions therefrom. Only those representations or warranties made in a definitive agreement,\nwhen, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n6. Definitive Agreements. Each party acknowledges and agrees that other than with respect to the matters specifically set forth herein, no\ncontract or agreement providing a Transaction shall be deemed to exist between the parties unless and until a definitive agreement has been\nexecuted and delivered. The parties further agree that each party reserves the right, in its sole discretion, to reject any and all proposals made by\nthe other party or any of its Associates with regard to a Transaction and to terminate discussions or negotiations at any time.\n7. Similar Products. Each disclosing party acknowledges that the receiving party or its Associates may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the disclosing party’s Confidential Information.\nNothing in this Agreement will prohibit the receiving party or its Associates from developing, manufacturing, marketing, selling, servicing or\nsupporting or having developed, manufactured, marketed, sold, serviced or supported for it products, concepts, systems or techniques that are\nsimilar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the disclosing party’s Confidential\nInformation, provided that the receiving party and its Associates do not use any of the disclosing party’s Confidential Information in connection\nwith such activities. Neither party nor its respective Associates shall have any obligation to limit or restrict the assignment of its respective\nemployees or consultants as a result of their having had access to Confidential Information of the other party or its Associates.\n8. Residuals. The receiving party’s employees may use any Residuals for any purpose, provided that this paragraph does not grant or\nimply any license or other right to use any patent, trademark, copyright, mask work right or other intellectual property right. “Residuals” means\ninformation that is retained, as general knowledge and experience, in the\nunaided memory of the receiving party’s employees who have had access to the disclosing party’s Confidential Information within the scope of\nthe receiving party’s obligations under this Agreement, but who no longer have access to such Confidential Information. However, Residuals\ndoes not include any detailed financial or personnel data. The ability to use Residuals shall be narrowly construed, is intended only to alleviate\nthe possibility of inadvertent breach of this Agreement as a result of routine, unaided memory retention, and does not allow the receiving party to\nuse or disclose information known to the receiving party to be Confidential Information that is subject to this Agreement. The memory of an\nemployee of the receiving party is unaided if such employee has not intentionally memorized the Confidential Information or retained notes or\nother aids to such memory,\n9. Commercial Relationship Use. Notwithstanding any obligations or restrictions to the contrary contained herein, if during due diligence\nreview, HPE learns of flaws or problems with Company’s products, software, services or intellectual property rights, the Associates of HPE\nevaluating the potential Transaction may share such information with the Associates of HPE who are responsible for purchasing such products,\nsoftware or services or licensing such intellectual property on behalf of HPE (“Purchasing Associates”). For avoidance of doubt, Purchasing\nAssociates of the receiving party that receive such information agree to be bound by the terms of this Agreement. In the event any Confidential\nInformation is disclosed pursuant to this Section 9, HPE shall notify the Company of any information shared with Associates of HPE within\nfifteen (15) business days after such disclosure.\n10. Termination of Discussions. Following written notice by one party to another of the termination of discussions between the parties,\nupon written request of the disclosing party, the receiving party shall take reasonable steps to instruct all persons involved in the Transaction to\ndestroy all Confidential Information furnished to the receiving party by or on behalf of the disclosing party pursuant to this Agreement.\nNotwithstanding the foregoing, the receiving party and its Associates may retain any Confidential Information to the extent required pursuant to\nthe regulatory compliance or record retention policies of such receiving party or Associate.\n11. Term. The foregoing commitments of either party in this Agreement regarding the confidentiality and non-use of Confidential\nInformation shall survive any termination of discussions between the parties and shall continue for a period of eighteen (18) months following\nthe date of this Agreement.\n12.  Attorney-Client Privilege. To the extent that any Confidential Information of the disclosing party may include materials subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or\ngovernmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their\ndesire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine and other\napplicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine,\n13. Notice. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in\nwriting and shall he deemed properly given on the day of delivery (or, if such date is not a business day, on the first business day after delivery) if\ndelivered by hand or email (if submitting by email, substantive discussions to be included only in password protected attachments) (with\nconfirmation of delivery), or on the first business day after being sent by overnight courier or overnight express delivery service (in each case,\nwith confirmation of delivery) to the address set forth beneath the name of such party below (or to such other address as such party shall have\nspecified in a written notice given to the other parties hereto):\nif to HPE:\nHewlett Packard Enterprise Company\n3000 Hanover Street\nPalo Alto, CA 94304\nAttn: General Counsel\nif to the Company:\nNimble Storage, Inc.\n211 River Oaks Parkway\nSan Jose, CA 95134\nAttn: General Counsel\nGC@nimblestorage.com\n14. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the\nState of Delaware applicable to agreements made and to be performed within that state. Each of the parties hereby agrees and irrevocably\nconsents to personal jurisdiction and venue in any federal or state court within Wilmington, Delaware, having subject matter jurisdiction, for the\npurposes of any action, suit or proceeding arising out of or relating to this agreement. To the fullest extent permitted by law, each of the parties\nhereby agrees to waive trial by jury in any action proceeding or counterclaim brought by or on behalf of either party with respect to any matter\nwhatsoever relating to this Agreement.\n15. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto and supersedes all other prior\nagreements and understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof.\nAll modifications of, waivers of and amendments to this letter agreement must be in writing and signed by both parties hereto.\n \n16. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument. Any counterpart signed by an authorized representative of a party and delivered to the other party by\nemail, facsimile, PDF, or other similar electronic means shall be deemed an original counterpart and duly delivered.\n \n[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREQF, the parties have executed this Mutual Non-Disclosure Agreement as of the day and year first above written.\nNIMBLE STORAGE, INC.\nBy:  /s/ Suresh Vasudevan\nName: Suresh Vasudevan\nTitle: CEO\nHEWLETT PACKARD ENTERPRISE\nCOMPANY\nBy:  /s/ Vishal Bhagwati\nName: Vishal Bhagwati\nTitle: SVP — Corporate Development	EX-99.(E)(3) 2 d334994dex99e3.htm EX-(E)(3)\nExhibit (e)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this "Agreement") is made as of November 17, 2016, by and between Nimble\nStorage, Inc. a corporation organized under the laws of Delaware (the "Company"), and Hewlett Packard Enterprise Company, a Delaware\ncorporation ("HPE").\nHPE is evaluating forms of a potential transaction with respect to the Company (a "Transaction"), in connection with which each may\ndisclose certain information, including Confidential 1nformation (as defined below), to the other. As a condition to such information being\nfurnished to each party, its affiliates, its subsidiaries and other individuals and entities controlled, directly or indirectly, by such party\n("Affiliates"), and the respective directors, employees, consultants, accountants, attorneys and advisors of such party and its Affiliates with\nwhich such party has entered into confidentiality agreements with material terms that are substantially similar to those in this Agreement\n(collectively with such Affiliates, "Associates"), each party agrees such information shall be provided to Associates for the limited purpose\nof\nevaluating, negotiating or consummating the Transaction, to treat the other party's Confidential Information in accordance with the provisions of\nthis Agreement and to take or abstain from taking certain other actions, as described in this Agreement. The foregoing definition of Associates\nwho may be furnished confidential information hereby specifically excludes third parties who provide stockholder representation services.\nA\nparty disclosing Confidential Information hereunder is referred to herein as "the disclosing party" and a party receiving the Confidentia\nInformation of a disclosing party hereunder is referred to herein as "the receiving party."\n1.\nDefinition of Confidential Information; Use and Disclosure.\n"Confidential Information" means any information, technical data or know-how, including, but not limited to, that which relates to\nresearch, product or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other\nstrategic partners, stockholders, markets, software, know-how, developments, inventions, processes, designs, drawings, engineering, hardware\nconfiguration information, marketing, finances, notes, analyses or studies and all tangible and intangible embodiments thereof of any kind\nwhatsoever, whether conveyed in writing or orally by the disclosing party or its Associates to the receiving party or its Associates in connection\nwith\nthe evaluation of a Transaction. The term "Confidential Information" shall be deemed to include those portions of any notes, analyses,\ncompilations, studies, interpretations, memoranda or other documents (regardless of the form thereof) prepared by the receiving party or its\nAssociates which contain, reflect or are based upon, in whole or in part, any information furnished to the receiving party or its Associates\npursuant hereto. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is\nin the possession of the receiving party or its Associates at the time of disclosure, as shown by files and records immediately prior to the time of\ndisclosure; (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action\nof the receiving party or its Associates; (iii) is obtained by the receiving party or its Associates from a source other than the disclosing party or its\nAssociates, which source would not be reasonably expected by the\nreceiving party or its Associates to have any obligation of confidentiality to the disclosing party with respect to such information; (iv)\nis\napproved, in writing, for release by the disclosing party; or (v) the receiving party or its Associates can document was independently developed\nby the receiving party or its Associates without use of or reference to the disclosing party's Confidential Information.\nEach of the parties hereto agree not to use the Confidential Information disclosed to it by the other party or its Associates except in\nconnection with preparing a proposal for and any discussions of a Transaction or as otherwise permitted hereunder. Neither party will disclose\nany Confidential Information of the other party to third parties except those of its Associates who are required to have the information in order\nto\nevaluate and discuss a Transaction. The receiving party shall inform its Associates of the confidential nature of the Confidential Information\nand\nshall instruct them to treat the information confidentially. The receiving party shall be responsible for any breach of this Agreement by\nits\nAssociates and agrees, at its sole expense, to take all commercially reasonable measures to restrain its Associates from disclosure or use of the\nConfidential Information in breach of this Agreement. Each party agrees that it will take commercially reasonable measures to protect the\nconfidentiality of, and to avoid having Confidential Information of the other party enter the public domain, become publicly available, or be held\nby persons not authorized hereunder to have such Confidentia Information, which measures shall include at least the same degree of care that\nthe\nreceiving party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party in writing of\nany misuse or misappropriation of such Confidential Information of the other party that may come to its attention.\n2. Nonpublicity.. The existence and the terms of this Agreement, any Transaction, the fact that any Confidential Information has been\nprovided to the other party, and the existence, nature and status of any discussions between the parties shall be treated as Confidential\nInformation hereunder, shall be maintained in strict confidence by the parties hereto and by their respective Associates and, subject to Section\n3\nof this Agreement, shall not be disclosed to any third party.\n3. Required Disclosure. In the event that a receiving party or its Associates is or becomes legally compelled under applicable law,\nregulation or securities exchange listing agreement, or by a competent governmental, administrative or regulatory authority or in a proceeding\nbefore a court, arbitrator or administrative agency, whether or not as a result of a Transaction to which the Company has consented, to disclose\nany portion of the Confidential Information of a disclosing party, that discussions or negotiations between the parties hereto are taking place\nor\nhave\ntaken\nplace,\nor\nany of the terms, conditions or other facts with respect to a Transaction, including the status thereof, the receiving party will,\nand will direct its Associates to, provide the disclosing party with prompt written notice (unless prohibited by law) of such legal compulsion, and\nshall delay disclosure, if and to the extent permitted or practicable, until the disclaiming party has had an opportunity to seek a protective order\nor\nother appropriate remedy or to waive compliance by the receiving party and/or its Associates with the relevant provisions of this Agreement.\nIn\nthe event that a protective order or other remedy is not obtained in such a proceeding, or the disclosing party fails to waive compliance with the\nrelevant provisions of this Agreement, the receiving party agrees that it will, and will direct its Associates to, disclose only that Confidential\nInformation of the disclosing party which its counsel advises\nis legally required to be disclosed and will exercise commercially reasonable efforts, and wil direct its Associates to exercise their commercially\nreasonable efforts, at the request and expense of the disclosing party, to cooperate with the disclosing party in its efforts to obtain reliable\nassurance that confidential treatment will be accorded the Confidential Information which is so disclosed.\n4. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret\nor other intellectual property right, nor shall this Agreement grant either party any rights in or to the other party's Confidential Information,\nexcept the limited right to review such Confidential Information solely for the purposes of determining whether to enter into, and the undertaking\nof or the advising with respect to, a Transaction.\n5. No Representation of Accuracy. Each party acknowledges that neither the other party nor any of its Associates has made any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information made available by the other\nparty or its Associates. Each party agrees that, except as set forth in a definitive agreement executed by the parties, neither party nor any of\nits\nAssociates shall have any liability to the other party or to any of its Associates relating to or resulting from the use of such other party's\nConfidential Information or any errors therein m omissions therefrom. Only those representations or warranties made in a definitive agreement,\nwhen, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n6. Definitive Agreements. Each party acknowledges and agrees that other than with respect to the matters specifically set forth herein, no\ncontract or agreement providing a Transaction shall be deemed to exist between the parties unless and until a definitive agreement has been\nexecuted and delivered. The parties further agree that each party reserves the right, in its sole discretion, to reject any and all proposals made\nby\nthe other party or any of its Associates with regard to a Transaction and to terminate discussions or negotiations at any time.\n7. Similar Products. Each disclosing party acknowledges that the receiving party or its Associates may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the disclosing party's Confidential Information.\nNothing in this Agreement will prohibit the receiving party or its Associates from developing, manufacturing, marketing, selling, servicing or\nsupporting or having developed, manufactured, marketed, sold, serviced or supported for it products, concepts, systems or techniques that are\nsimilar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the disclosing party's Confidential\nInformation, provided that the receiving party and its Associates do not use any of the disclosing party's Confidential Information in connection\nwith such activities. Neither party nor its respective Associates shall have any obligation to limit or restrict the assignment of its respective\nemployees or consultants as a result of their having had access to Confidential Information of the other party or its Associates.\n8.\nResiduals. The receiving party's employees may use any Residuals for any purpose, provided that this paragraph does not grant or\nimply any license or other right to use any patent, trademark, copyright, mask work right or other intellectual property right. "Residuals" means\ninformation that is retained, as general knowledge and experience, in the\nunaided memory of the receiving party's employees who have had access to the disclosing party's Confidential Information within the scope of\nthe receiving party's obligations under this Agreement, but who no longer have access to such Confidential Information. However, Residuals\ndoes not include any detailed financial or personnel data. The ability to use Residuals shall be narrowly construed, is intended only to alleviate\nthe possibility of inadvertent breach of this Agreement as a result of routine, unaided memory retention, and does not allow the receiving party\nto\nuse or disclose information known to the receiving party to be Confidential Information that is subject to this Agreement. The memory of an\nemployee of the receiving party is unaided if such employee has not intentionally memorized the Confidential Information or retained notes\nor\nother aids to such memory,\n9. Commercial Relationship Use. Notwithstanding any obligations or restrictions to the contrary contained herein, if during due diligence\nreview, HPE learns of flaws or problems with Company's products, software, services or intellectual property rights, the Associates of HPE\nevaluating the potential Transaction may share such information with the Associates of HPE who are responsible for purchasing such products,\nsoftware or services or licensing such intellectual property on behalf of HPE ("Purchasing Associates"). For avoidance of doubt, Purchasing\nAssociates of the receiving party that receive such information agree to be bound by the terms of this Agreement. In the event any Confidential\nInformation is disclosed pursuant to this Section 9, HPE shall notify the Company of any information shared with Associates of HPE within\nfifteen (15) business days after such disclosure.\n10. Termination of Discussions. Following written notice by one party to another of the termination of discussions between the parties,\nupon written request of the disclosing party, the receiving party shall take reasonable steps to instruct all persons involved in the Transaction to\ndestroy all Confidential Information furnished to the receiving party by or on behalf of the disclosing party pursuant to this Agreement.\nNotwithstanding the foregoing, the receiving party and its Associates may retain any Confidential Information to the extent required pursuant to\nthe regulatory compliance or record retention policies of such receiving party or Associate.\n11. Term. The foregoing commitments of either party in this Agreement regarding the confidentiality and non-use of Confidential\nInformation shall survive any termination of discussions between the parties and shall continue for a period of eighteen (18) months following\nthe date of this Agreement.\n12. Attorney-Client Privilege. To the extent that any Confidential Information of the disclosing party may include materials subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings\nor\ngovernmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their\ndesire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way\nthe\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine and other\napplicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine,\n13. Notice. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in\nwriting and shall he deemed properly given on the day of delivery (or, if such date is not a business day, on the first business day after delivery) if\ndelivered by hand or email (if submitting by email, substantive discussions to be included only in password protected attachments) (with\nconfirmation of delivery), or on the first business day after being sent by overnight courier or overnight express delivery service (in each case,\nwith confirmation of delivery) to the address set forth beneath the name of such party below (or to such other address as such party shall have\nspecified in a written notice given to the other parties hereto):\nif to HPE:\nHewlett Packard Enterprise Company\n3000 Hanover Street\nPalo Alto, CA 94304\nAttn: General Counsel\nif to the Company:\nNimble Storage, Inc.\n211 River Oaks Parkway\nSan Jose, CA 95134\nAttn: General Counsel\nGC@nimblestorage.com\n14. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the\nState of Delaware applicable to agreements made and to be performed within that state. Each of the parties hereby agrees and irrevocably\nconsents to personal jurisdiction and venue in any federal or state court within Wilmington, Delaware, having subject matter jurisdiction, for the\npurposes of any action, suit or proceeding arising out of or relating to this agreement. To the fullest extent permitted by law, each of the parties\nhereby agrees to waive trial by jury in any action proceeding or counterclaim brought by or on behalf of either party with respect to any matter\nwhatsoever relating to this Agreement.\n15. Entire Agreement This Agreement constitutes the entire agreement among the parties hereto and supersedes all other prior\nagreements and understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof.\nAll modifications of, waivers of and amendments to this letter agreement must be in writing and signed by both parties hereto.\n16. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument. Any counterpart signed by an authorized representative of a party and delivered to the other party by\nemail, facsimile, PDF, or other similar electronic means shall be deemed an original counterpart and duly delivered.\n[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have executed this Mutual Non-Disclosure Agreement as of the day and year first above written.\nNIMBLE STORAGE, INC.\nBy:\n/s/ Suresh Vasudevan\nName: Suresh Vasudevan\nTitle: CEO\nHEWLETT PACKARD ENTERPRISE\nCOMPANY\nBy:\n/s/ Vishal Bhagwati\nName: Vishal Bhagwati\nTitle: SVP - Corporate Development	EX-99.(E)(3) 2 d334994dex99e3.htm EX-(E)(3)\nExhibit (e)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made as of November 17, 2016, by and between Nimble\nStorage, Inc. a corporation organized under the laws of Delaware (the “Company”), and Hewlett Packard Enterprise Company, a Delaware\ncorporation (“HPE”).\nHPE is evaluating forms of a potential transaction with respect to the Company (a “Transaction”), in connection with which each may\ndisclose certain information, including Confidential 1nformation (as defined below), to the other. As a condition to such information being\nfurnished to each party, its affiliates, its subsidiaries and other individuals and entities controlled, directly or indirectly, by such party\n(“Affiliates”), and the respective directors, employees, consultants, accountants, attorneys and advisors of such party and its Affiliates with\nwhich such party has entered into confidentiality agreements with material terms that are substantially similar to those in this Agreement\n(collectively with such Affiliates, “Associates”), each party agrees such information shall be provided to Associates for the limited purpose of\nevaluating, negotiating or consummating the Transaction, to treat the other party’s Confidential Information in accordance with the provisions of\nthis Agreement and to take or abstain from taking certain other actions, as described in this Agreement. The foregoing definition of Associates\nwho may be furnished confidential information hereby specifically excludes third parties who provide stockholder representation services. A\nparty disclosing Confidential Information hereunder is referred to herein as “the disclosing party” and a party receiving the Confidential\nInformation of a disclosing party hereunder is referred to herein as “the receiving party.”\n1. Definition of Confidential Information; Use and Disclosure.\n“Confidential Information” means any information, technical data or know-how, including, but not limited to, that which relates to\nresearch, product or service plans, business practices, agreement terms, products, services, employees, suppliers, customers, technology or other\nstrategic partners, stockholders, markets, software, know-how, developments, inventions, processes, designs, drawings, engineering, hardware\nconfiguration information, marketing, finances, notes, analyses or studies and all tangible and intangible embodiments thereof of any kind\nwhatsoever, whether conveyed in writing or orally by the disclosing party or its Associates to the receiving party or its Associates in connection\nwith the evaluation of a Transaction. The term “Confidential Information” shall be deemed to include those portions of any notes, analyses,\ncompilations, studies, interpretations, memoranda or other documents (regardless of the form thereof) prepared by the receiving party or its\nAssociates which contain, reflect or are based upon, in whole or in part, any information furnished to the receiving party or its Associates\npursuant hereto. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is\nin the possession of the receiving party or its Associates at the time of disclosure, as shown by files and records immediately prior to the time of\ndisclosure; (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action\nof the receiving party or its Associates; (iii) is obtained by the receiving party or its Associates from a source other than the disclosing party or its\nAssociates, which source would not be reasonably expected by the\nreceiving party or its Associates to have any obligation of confidentiality to the disclosing party with respect to such information; (iv) is\napproved, in writing, for release by the disclosing party; or (v) the receiving party or its Associates can document was independently developed\nby the receiving party or its Associates without use of or reference to the disclosing party’s Confidential Information.\nEach of the parties hereto agree not to use the Confidential Information disclosed to it by the other party or its Associates except in\nconnection with preparing a proposal for and any discussions of a Transaction or as otherwise permitted hereunder. Neither party will disclose\nany Confidential Information of the other party to third parties except those of its Associates who are required to have the information in order to\nevaluate and discuss a Transaction. The receiving party shall inform its Associates of the confidential nature of the Confidential Information and\nshall instruct them to treat the information confidentially. The receiving party shall be responsible for any breach of this Agreement by its\nAssociates and agrees, at its sole expense, to take all commercially reasonable measures to restrain its Associates from disclosure or use of the\nConfidential Information in breach of this Agreement. Each party agrees that it will take commercially reasonable measures to protect the\nconfidentiality of, and to avoid having Confidential Information of the other party enter the public domain, become publicly available, or be held\nby persons not authorized hereunder to have such Confidential Information, which measures shall include at least the same degree of care that the\nreceiving party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party in writing of\nany misuse or misappropriation of such Confidential Information of the other party that may come to its attention.\n2. Nonpublicity. The existence and the terms of this Agreement, any Transaction, the fact that any Confidential Information has been\nprovided to the other party, and the existence, nature and status of any discussions between the parties shall be treated as Confidential\nInformation hereunder, shall be maintained in strict confidence by the parties hereto and by their respective Associates and, subject to Section 3\nof this Agreement, shall not be disclosed to any third party.\n3. Required Disclosure. In the event that a receiving party or its Associates is or becomes legally compelled under applicable law,\nregulation or securities exchange listing agreement, or by a competent governmental, administrative or regulatory authority or in a proceeding\nbefore a court, arbitrator or administrative agency, whether or not as a result of a Transaction to which the Company has consented, to disclose\nany portion of the Confidential Information of a disclosing party, that discussions or negotiations between the parties hereto are taking place or\nhave taken place, or any of the terms, conditions or other facts with respect to a Transaction, including the status thereof, the receiving party will,\nand will direct its Associates to, provide the disclosing party with prompt written notice (unless prohibited by law) of such legal compulsion, and\nshall delay disclosure, if and to the extent permitted or practicable, until the disclaiming party has had an opportunity to seek a protective order or\nother appropriate remedy or to waive compliance by the receiving party and/or its Associates with the relevant provisions of this Agreement. In\nthe event that a protective order or other remedy is not obtained in such a proceeding, or the disclosing party fails to waive compliance with the\nrelevant provisions of this Agreement, the receiving party agrees that it will, and will direct its Associates to, disclose only that Confidential\nInformation of the disclosing party which its counsel advises\nis legally required to be disclosed and will exercise commercially reasonable efforts, and will direct its Associates to exercise their commercially\nreasonable efforts, at the request and expense of the disclosing party, to cooperate with the disclosing party in its efforts to obtain reliable\nassurance that confidential treatment will be accorded the Confidential Information which is so disclosed.\n4. No License Granted. Nothing in this Agreement is intended to grant any rights to either party under any patent, copyright, trade secret\nor other intellectual property right, nor shall this Agreement grant either party any rights in or to the other party’s Confidential Information,\nexcept the limited right to review such Confidential Information solely for the purposes of determining whether to enter into, and the undertaking\nof or the advising with respect to, a Transaction.\n5. No Representation of Accuracy.· Each party acknowledges that neither the other party nor any of its Associates has made any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information made available by the other\nparty or its Associates. Each party agrees that, except as set forth in a definitive agreement executed by the parties, neither party nor any of its\nAssociates shall have any liability to the other party or to any of its Associates relating to or resulting from the use of such other party’s\nConfidential Information or any errors therein m omissions therefrom. Only those representations or warranties made in a definitive agreement,\nwhen, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n6. Definitive Agreements. Each party acknowledges and agrees that other than with respect to the matters specifically set forth herein, no\ncontract or agreement providing a Transaction shall be deemed to exist between the parties unless and until a definitive agreement has been\nexecuted and delivered. The parties further agree that each party reserves the right, in its sole discretion, to reject any and all proposals made by\nthe other party or any of its Associates with regard to a Transaction and to terminate discussions or negotiations at any time.\n7. Similar Products. Each disclosing party acknowledges that the receiving party or its Associates may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the disclosing party’s Confidential Information.\nNothing in this Agreement will prohibit the receiving party or its Associates from developing, manufacturing, marketing, selling, servicing or\nsupporting or having developed, manufactured, marketed, sold, serviced or supported for it products, concepts, systems or techniques that are\nsimilar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the disclosing party’s Confidential\nInformation, provided that the receiving party and its Associates do not use any of the disclosing party’s Confidential Information in connection\nwith such activities. Neither party nor its respective Associates shall have any obligation to limit or restrict the assignment of its respective\nemployees or consultants as a result of their having had access to Confidential Information of the other party or its Associates.\n8. Residuals. The receiving party’s employees may use any Residuals for any purpose, provided that this paragraph does not grant or\nimply any license or other right to use any patent, trademark, copyright, mask work right or other intellectual property right. “Residuals” means\ninformation that is retained, as general knowledge and experience, in the\nunaided memory of the receiving party’s employees who have had access to the disclosing party’s Confidential Information within the scope of\nthe receiving party’s obligations under this Agreement, but who no longer have access to such Confidential Information. However, Residuals\ndoes not include any detailed financial or personnel data. The ability to use Residuals shall be narrowly construed, is intended only to alleviate\nthe possibility of inadvertent breach of this Agreement as a result of routine, unaided memory retention, and does not allow the receiving party to\nuse or disclose information known to the receiving party to be Confidential Information that is subject to this Agreement. The memory of an\nemployee of the receiving party is unaided if such employee has not intentionally memorized the Confidential Information or retained notes or\nother aids to such memory,\n9. Commercial Relationship Use. Notwithstanding any obligations or restrictions to the contrary contained herein, if during due diligence\nreview, HPE learns of flaws or problems with Company’s products, software, services or intellectual property rights, the Associates of HPE\nevaluating the potential Transaction may share such information with the Associates of HPE who are responsible for purchasing such products,\nsoftware or services or licensing such intellectual property on behalf of HPE (“Purchasing Associates”). For avoidance of doubt, Purchasing\nAssociates of the receiving party that receive such information agree to be bound by the terms of this Agreement. In the event any Confidential\nInformation is disclosed pursuant to this Section 9, HPE shall notify the Company of any information shared with Associates of HPE within\nfifteen (15) business days after such disclosure.\n10. Termination of Discussions. Following written notice by one party to another of the termination of discussions between the parties,\nupon written request of the disclosing party, the receiving party shall take reasonable steps to instruct all persons involved in the Transaction to\ndestroy all Confidential Information furnished to the receiving party by or on behalf of the disclosing party pursuant to this Agreement.\nNotwithstanding the foregoing, the receiving party and its Associates may retain any Confidential Information to the extent required pursuant to\nthe regulatory compliance or record retention policies of such receiving party or Associate.\n11. Term. The foregoing commitments of either party in this Agreement regarding the confidentiality and non-use of Confidential\nInformation shall survive any termination of discussions between the parties and shall continue for a period of eighteen (18) months following\nthe date of this Agreement.\n12. Attorney-Client Privilege. To the extent that any Confidential Information of the disclosing party may include materials subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or\ngovernmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their\ndesire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine and other\napplicable privilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine,\n13. Notice. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in\nwriting and shall he deemed properly given on the day of delivery (or, if such date is not a business day, on the first business day after delivery) if\ndelivered by hand or email (if submitting by email, substantive discussions to be included only in password protected attachments) (with\nconfirmation of delivery), or on the first business day after being sent by overnight courier or overnight express delivery service (in each case,\nwith confirmation of delivery) to the address set forth beneath the name of such party below (or to such other address as such party shall have\nspecified in a written notice given to the other parties hereto):\nif to HPE:\nHewlett Packard Enterprise Company\n3000 Hanover Street\nPalo Alto, CA 94304\nAttn: General Counsel\nif to the Company:\nNimble Storage, Inc.\n211 River Oaks Parkway\nSan Jose, CA 95134\nAttn: General Counsel\nGC@nimblestorage.com\n14. Governing Law and Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the\nState of Delaware applicable to agreements made and to be performed within that state. Each of the parties hereby agrees and irrevocably\nconsents to personal jurisdiction and venue in any federal or state court within Wilmington, Delaware, having subject matter jurisdiction, for the\npurposes of any action, suit or proceeding arising out of or relating to this agreement. To the fullest extent permitted by law, each of the parties\nhereby agrees to waive trial by jury in any action proceeding or counterclaim brought by or on behalf of either party with respect to any matter\nwhatsoever relating to this Agreement.\n15. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto and supersedes all other prior\nagreements and understandings, both written and oral, among or between any of the parties with respect to the subject matter hereof and thereof.\nAll modifications of, waivers of and amendments to this letter agreement must be in writing and signed by both parties hereto.\n16. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which\ntogether shall constitute one instrument. Any counterpart signed by an authorized representative of a party and delivered to the other party by\nemail, facsimile, PDF, or other similar electronic means shall be deemed an original counterpart and duly delivered.\n[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have executed this Mutual Non-Disclosure Agreement as of the day and year first above written.\nNIMBLE STORAGE, INC.\nBy: /s/ Suresh Vasudevan\nName: Suresh Vasudevan\nTitle: CEO\nHEWLETT PACKARD ENTERPRISE\nCOMPANY\nBy: /s/ Vishal Bhagwati\nName: Vishal Bhagwati\nTitle: SVP – Corporate Development
+9ab3b4ff495e339138dfb9178140218f.pdf	effective_date jurisdiction party term	Exhibit 10.2\nNon–Competition, Non–Solicitation, and Confidentiality Agreement\nThis Non–Competition, Non–Solicitation, and Confidentiality Agreement, dated as of January 16, 2019 (this “Agreement”), is made\nby and among Glacier Bancorp, Inc. (“GBCI”), Glacier Bank, a wholly owned subsidiary of GBCI (“Glacier Bank”), FNB Bancorp\n(“FNB”), The First National Bank of Layton, a wholly owned subsidiary of FNB (“First National Bank”), and the undersigned, each\nof whom is a director of FNB and First National Bank (each, a “Director”).\nRecitals\nA. FNB and First National Bank have entered into a Plan and Agreement of Merger, dated January 16, 2019 (the “Merger\nAgreement”), with GBCI and Glacier Bank. Under the terms of the Merger Agreement, FNB will merge with and into GBCI,\nFirst National Bank will merge with and into Glacier Bank (collectively, the “Merger”), and the former branches of First\nNational Bank will operate as a division of Glacier Bank (the “Division”).\nB. The parties to this Agreement believe that the future success of GBCI, Glacier Bank, and the Division following the Merger\nrequires that no Director be affiliated in any substantial way with a Competing Business for a reasonable period of time after\nclosing of the Merger or, if applicable, termination of such Director’s service as a post-Merger member of the Division’s\nadvisory board (the “Advisory Board”).\nAgreement\nIn consideration of the parties’ performance under the Merger Agreement, each Director agrees as follows:\n1. Definitions. Capitalized terms not defined in this Agreement have the meaning assigned to those terms in the Merger\nAgreement. The following definitions also apply to this Agreement:\na. A “Competing Business” means any depository, financial institution, wealth management company, or trust company, or\nholding company thereof (including without limitation any start-up bank or bank in formation), operating anywhere within\nthe Covered Area.\nb. The “Covered Area” means the following counties in the State of Utah: Box Elder County, Davis County, Morgan County,\nSalt Lake County, Summit County, Utah County, and Weber County.\nc. The “Term” means, with respect to each Director, the period of time beginning on the Effective Date and ending on the\nlater to occur of (i) two (2) years after the Effective Date or, if applicable, (ii) one (1) year following the termination of any\nservice by such Director as a post-Merger member of the Advisory Board; provided, however, that in no event shall the\nTerm exceed four (4) years after the Effective Date.\n-1-\n2. Participation in Competing Business. Except as provided in Section 5 or 6, during the Term, each Director agrees not to\nbecome involved with a Competing Business in any capacity or serve, directly or indirectly, a Competing Business in any\nmanner, including without limitation (a) as a shareholder, member, partner, director, officer, manager, investor, organizer,\nfounder, employee, consultant, agent, or representative, or (b) during the organization and pre-opening phases in the formation of\na Competing Business; provided, however, that for the avoidance of doubt, the restrictions set forth herein shall not prevent a\nDirector from using services of any Competing Business that are generally available to the public.\n3. Non-Solicitation. During the Term, each Director agrees not to, directly or indirectly, either for himself or herself or for any\nother person, solicit or attempt to solicit: (a) any employees or independent contractors of GBCI or GBCI’s subsidiaries,\ndivisions, or affiliates to participate, as an employee or otherwise, in any manner in a Competing Business; (b) any customers,\nbusiness partners, or joint venturers of GBCI or GBCI’s subsidiaries, divisions, or affiliates to transfer their business to a\nCompeting Business or to reduce such customers’, business partners’ or joint venturers’ business or cease doing business with\nGBCI or GBCI’s subsidiaries, divisions, or affiliates; or (c) the termination of an employment or contractual relationship\nbetween GBCI or GBCI’s subsidiaries, divisions, or affiliates and any employee, independent contractor, customer, business\npartner, or joint venturer. Solicitation prohibited under this Section 3 includes solicitation by any means, including without\nlimitation meetings, letters, or other direct mailings, electronic communications of any kind, and internet communications;\nprovided, however, that nothing contained in this Section 3 is intended to prohibit general advertising or general solicitation not\ndirected at such employees, general contractors, customers, business partners, or joint venturers.\n4. Confidential Information.\na. Confidentiality. During and after the Term, each Director shall not at any time, directly or indirectly, divulge, reveal, or\ncommunicate any Confidential Information of FNB, First National Bank, GBCI or GBCI’s subsidiaries, divisions, or\naffiliates obtained by the Director while serving as a director of FNB and/or First National Bank (or, if applicable, as a\npost-Merger member of the Advisory Board) to any person or use any Confidential Information for his or her own benefit or\nfor the benefit of any other person. For purposes of this Agreement, “Confidential Information” includes all secrets and\nother confidential information, knowledge, know-how, sales, financial information, customers, lists of customers and\nprospective customers, broker lists, rate sheets, strategies, or products, as well as all documents, reports, and proposals\nrelating to the same, with respect to FNB, First National Bank, GBCI, or GBCI’s subsidiaries, divisions, or affiliates.\nNotwithstanding the foregoing, “Confidential Information” does not include (i) information that is or becomes generally\n-2-\navailable to the public other than as a result of an unauthorized disclosure by the Director, (ii) information that was in the\nDirector’s possession prior to serving as a director of FNB and/or First National Bank or information received by the\nDirector from another person without any limitations on disclosure, but only if the Director had no reason to believe the\nother person was prohibited from using or disclosing the information by contractual or fiduciary obligation, or\n(iii) information that was independently developed by the Director without using any Confidential Information of FNB,\nFirst National Bank, GBCI, or GBCI’s subsidiaries, divisions, or affiliates.\nb. Defend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, 18 U.S .C . § 1833(b), a Director will not be\nheld criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made\n(i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for\nthe purpose of reporting or investigating a suspected violation of law, or (ii) is made in a complaint or other document filed\nin a proceeding, if such filing is made under seal.\nc. Legally Required Disclosures. Notwithstanding any provision of this Agreement to the contrary, a Director may disclose or\nreveal any information, whether including in whole or in part any Confidential Information, that such Director is required to\ndisclose or reveal under any applicable law or is otherwise required to disclose or reveal by any governmental authority (by\noral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand, or other similar process); provided, however, that such Director makes a good faith request that the confidentiality\nof the Confidential Information be preserved and, to the extent not prohibited by applicable law, gives GBCI prompt notice\nof such requirement in advance of such disclosure and exercises reasonable efforts to preserve the confidentiality of such\nConfidential Information, including, without limitation, by reasonably cooperating with GBCI to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded to such Confidential Information by\nthe governmental authority or other recipient of the Confidential Information. If, in the absence of a protective order (or\nother reliable assurance) or the receipt of a written waiver from GBCI, the Director is nonetheless legally compelled to\ndisclose Confidential Information to a governmental authority, the Director may disclose to such governmental authority\nonly that portion of the Confidential Information which is legally required to be disclosed.\n5. Outside Covered Area; Requests for Consent. Nothing in this Agreement prevents a Director from becoming involved with,\nas a shareholder, member, partner, director, officer, manager, investor, organizer, founder, employee, consultant, agent,\nrepresentative, or otherwise, a financial institution that has no operations in the Covered Area. During the Term, prior to\nengaging in any manner in a Competing Business, a Director may request in writing that GBCI waive the restrictions set forth in\nthis Agreement with respect to a particular proposed activity. If GBCI determines, in its sole discretion, that such activity is\nacceptable, GBCI may provide such Director with written consent to engage in such activity, and such activity will thereafter not\nbe deemed a Competing Business.\n-3-\n6. Passive Interest. Notwithstanding anything to the contrary contained herein, nothing in this Agreement will prevent a Director\nfrom owning two percent (2%) or less of any class of security of a Competing Business.\n7. Miscellaneous.\na. Individual Obligations. The obligations of each of the signatories to this Agreement are independent of one another and are\nnot intended to be joint obligations of the undersigned. This Agreement is intended to be enforceable by GBCI and/or\nGlacier Bank against each Director individually.\nb. Severability. If any provision of this Agreement or the application of such provision to any person or circumstances will be\nheld invalid or unenforceable by a court of competent jurisdiction, such provision or application will be unenforceable only\nto the extent of such invalidity or unenforceability, and the remainder of the provision held invalid or unenforceable and the\napplication of such provision to persons or circumstances, other than the party as to which it is held invalid, and the\nremainder of this Agreement, will not be affected.\nc. Reformation. If any court determines that the obligations and restrictions set forth in this Agreement are unenforceable, then\nthe parties request such court to reform any unenforceable provisions to the maximum obligations or restrictions, term, and\nscope, as applicable, that such court finds enforceable.\nd. Expenses. Except as otherwise may be agreed in writing, all costs, fees, and expenses incurred in connection with this\nAgreement and the transactions contemplated hereby shall be paid by the party incurring such costs, fees, and expenses.\ne. Amendments; Waivers. Any provision of this Agreement may be amended or waived if, and only if, such amendment or\nwaiver is in writing and signed (i) in the case of an amendment, by GBCI and the Director to be bound by such amendment,\nand (ii) in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by any party in\nexercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.\nf. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Utah,\nexcept to the extent that federal law may govern certain matters.\n-4-\ng. Remedies. Any breach of this Agreement by a Director will entitle GBCI and/or Glacier Bank, together with their\nsuccessors and assigns, to injunctive relief and/or specific performance, as well as to any other legal or equitable remedies it\nmay be entitled to, it being agreed that money damages alone would be an inadequate remedy for such breach. The rights\nand remedies of the parties to this Agreement are cumulative and not alternative.\nh. Counterparts. This Agreement may be executed in one or more counterparts, including facsimile and/or scanned\ncounterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same\ndocument.\n[Signatures appear on the following pages]\n-5-\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nGLACIER BANCORP, INC.\nFNB BANCORP\nBy:Randall M. Chesler\nBy:K. John Jones\nIts:President and CEO\nIts:President and CEO\nGLACIER BANK\nTHE FIRST NATIONAL\nBANK OF LAYTON\nBy:Randall M. Chesler\nBy:K. John Jones\nIts:President and CEO\nIts:President and CEO\n[Director signatures appear on the following pages]\n[Signature Page to Non-Competition, Non-Solicitation, and Confidentiality Agreement]\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nDIRECTOR:\n[Director Signature Page to Non–Competition, Non–Solicitation, and Confidentiality Agreement]	Exhibit 10.2\nNon- C ompetition, Non- Solicitation, and C onfidentiality Agreement\nThis Non—Competition, Non— Solicitation, and Confidentiality Agreement, dated as of January 16, 2019 (this ”Agreement”), is made\nby and among Glacier Bancorp, Inc. (”G BCI”), Glacier Bank, a wholly owned subsidiary of GBCI (”G lacier Bank"), FNB Bancorp\n(”FNB"), The First National Bank of Layton, a wholly owned subsidiary of FNB (”First National Bank"), and the undersigned, each\nof whom is a director of FNB and First National Bank (each, a ”Director").\nRecitals\nA. FNB and First National Bank have entered into a Plan and A greement of Merger, datedJanuary 16, 2019 (the ”M erger\nAgreement”), with GBCI and Glacier Bank. Under the terms of the Merger Agreement, FNB will merge with and into GBCI,\nFirst National Bank will merge with and into Glacier Bank (collectively, the ”Merger”), and the former branches of First\nNational Bank will operate as a division of Glacier Bank (the ”Division").\nB. The parties to this Agreement believe that the future success of GBCI, Glacier Bank, and the Division following the Merger\nrequires that no Director be affiliated in any substantial way with a Competing Business for a reasonable period of time after\nclosing of the Merger or, if applicable, termination of such Director’ s service as a post-Merger member of the Division’ s\nadvisory board (the ”Advisory Board”).\nAgreement\nIn consideration of the parties' performance under the Merger Agreement, each Director agrees as follows:\n1. Definitions. Capitalized terms not defined in this Agreement have the meaning assigned to those terms in the Merger\nAgreement. The following definitions also apply to this Agreement:\na. A ”Competing Business” means any depository, financial institution, wealth management company, or trust company, or\nholding company thereof (including without limitation any start-up bank or bank in formation), operating anywhere within\nthe Covered Area.\nb. The ”Covered Area” means the following counties in the State of Utah: Box Elder County, Davis County, Morgan County,\nSalt Lake County, Summit County, Utah County, and Weber County.\nc. The ”Term” means, with respect to each Director, the period of time beginning on the Effective Date and ending on the\nlater to occur of (i) two (2) years after the Effective D ate or, if applicable, (ii) one (1) year following the termination of any\nservice by such Director as a post-Merger member of the Advisory Board; provided, however, that in no event shall the\nTerm exceed four (4) years after the Effective Date.\n \nParticipation in Competing Business. Except as provided in Section 5 or 6, during the Term, each Director agrees not to\nbecome involved with a Competing Business in any capacity or serve, directly or indirectly, a Competing Business in any\nmanner, including without limitation (a) as a shareholder, member, partner, director, officer, manager, investor, organizer,\nfounder, employee, consultant, agent, or representative, or (b) during the organization and pre opening phases in the formation of\na Competing Business; provided, however, that for the avoidance of doubt, the restrictions set forth herein shall not prevent a\nDirector from using services of any Competing Business that are generally available to the public.\n \nNon-Solicitation. During the Term, each Director agrees not to, directly or indirectly, either for himself or herself or for any\nother person, solicit or attempt to solicit: (a) any employees or independent contractors of GBCI or GBCI’ s subsidiaries,\ndivisions, or affiliates to participate, as an employee or otherwise, in any manner in a Competing Business; (b) any customers,\nbusiness partners, or joint venturers of G B Cl or G B Cl’ s subsidiaries, divisions, or affiliates to transfer their business to a\nCompeting Business or to reduce such customers', business partners’ or joint venturers’ business or cease doing business with\nG B Cl or G B Cl’ s subsidiaries, divisions, or affiliates; or (c) the termination of an employment or contractual relationship\nbetween G B Cl or G B Cl’ s subsidiaries, divisions, or affiliates and any employee, independent contractor, customer, business\npartner, or joint venturer. Solicitation prohibited under this Section 3 includes solicitation by any means, including without\nlimitation meetings, letters, or other direct mailings, electronic communications of any kind, and intemet communications;\nprovided, however, that nothing contained in this Section 3 is intended to prohibit general advertising or general solicitation not\ndirected at such employees, general contractors, customers, business partners, or joint venturers.\nC onfidential Information.\na. Confidentiality. During and after the Term, each Director shall not at any time, directly or indirectly, divulge, reveal, or\ncommunicate any Confidential Information of FNB, First National Bank, GBCI or GBCI’ s subsidiaries, divisions, or\naffiliates obtained by the Director while serving as a director of FNB and/or First National Bank (or, if applicable, as a\npost-Merger member of the Advisory Board) to any person or use any Confidential Information for his or her own benefit or\nfor the benefit of any other person. For purposes of this Agreement, ”C onfidential Information” includes all secrets and\nother confidential information, knowledge, know-how, sales, financial information, customers, lists of customers and\nprospective customers, broker lists, rate sheets, strategies, or products, as well as all documents, reports, and proposals\nrelating to the same, with respect to FNB, First National Bank, GBCI, or GBCI' s subsidiaries, divisions, or affiliates.\nNotwithstanding the foregoing, ”Confidential Information” does not include (i) information that is or becomes generally\n-2-\n \navailable to the public other than as a result of an unauthorized disclosure by the Director, (ii) information that was in the\nDirector’ s possession prior to serving as a director of FNB and/or First National Bank or information received by the\nDirector from another person without any limitations on disclosure, but only if the Director had no reason to believe the\nother person was prohibited from using or disclosing the information by contractual or fiduciary obligation, or\n(iii) information that was independently developed by the Director without using any Confidential Information of FNB,\nFirst National Bank, G B CI, or G B CI’ s subsidiaries, divisions, or affiliates.\nb. Defend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1833(b), a Director will not be\nheld criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made\n(i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for\nthe purpose of reporting or investigating a suspected violation of law, or (ii) is made in a complaint or other document filed\nin a proceeding, if such filing is made under seal.\nc. Legally Required Disclosures. Notwithstanding any provision of this Agreement to the contrary, a Director may disclose or\nreveal any information, whether including in whole or in part any Confidential Information, that such Director is required to\ndisclose or reveal under any applicable law or is otherwise required to disclose or reveal by any governmental authority (by\noral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand, or other similar process); provided, however, that such Director makes a good faith request that the confidentiality\nof the Confidential Information be preserved and, to the extent not prohibited by applicable law, gives GBCI prompt notice\nof such requirement in advance of such disclosure and exercises reasonable efforts to preserve the confidentiality of such\nConfidential Information, including, without limitation, by reasonably cooperating with GBCI to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded to such Confidential Information by\nthe governmental authority or other recipient of the Confidential Information. If, in the absence of a protective order (or\nother reliable assurance) or the receipt of a written waiver from G BCI, the Director is nonetheless legally compelled to\ndisclose Confidential Information to a governmental authority, the Director may disclose to such governmental authority\nonly that portion of the Confidential Information which is legally required to be disclosed.\nOutside Covered Area; Requests for Consent. Nothing in this Agreement prevents a Director from becoming involved with,\nas a shareholder, member, partner, director, officer, manager, investor, organizer, founder, employee, consultant, agent,\nrepresentative, or otherwise, a financial institution that has no operations in the Covered Area. During the Term, prior to\nengaging in any manner in a Competing Business, a Director may request in writing that GBCI waive the restrictions set forth in\nthis Agreement with respect to a particular proposed activity. If GBCI determines, in its sole discretion, that such activity is\nacceptable, GBCI may provide such Director with written consent to engage in such activity, and such activity will thereafter not\nbe deemed a Competing Business.\n \n6. Passive Interest. Notwithstanding anything to the contrary contained herein, nothing in this Agreement will prevent a Director\nfrom owning two percent (2%) or less of any class of security of a Competing Business.\nMiscellaneous.\na. Individual Obligations. The obligations of each of the signatories to this A greement are independent of one another and are\nnot intended to be joint obligations of the undersigned. This Agreement is intended to be enforceable by GBCI and/or\nGlacier Bank against each Director individually.\nb. Severabilily. If any provision of this Agreement or the application of such provision to any person or circumstances will be\nheld invalid or unenforceable by a court of competent jurisdiction, such provision or application will be unenforceable only\nto the extent of such invalidity or unenforceability, and the remainder of the provision held invalid or unenforceable and the\napplication of such provision to persons or circumstances, other than the party as to which it is held invalid, and the\nremainder of this A greement, will not be affected.\nc. Reformation. If any court determines that the obligations and restrictions set forth in this Agreement are unenforceable, then\nthe parties request such court to reform any unenforceable provisions to the maximum obligations or restrictions, term, and\nscope, as applicable, that such court finds enforceable.\nd. Expenses. Except as otherwise may be agreed in writing, all costs, fees, and expenses incurred in connection with this\nAgreement and the transactions contemplated hereby shall be paid by the party incurring such costs, fees, and expenses.\ne. Amendments; Waivers. Any provision of this A greement may be amended or waived if, and only if, such amendment or\nwaiver is in writing and signed (i) in the case of an amendment, by GBCI and the Director to be bound by such amendment,\nand (ii) in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by any party in\nexercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.\nf. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Utah,\nexcept to the extent that federal law may govern certain matters.\n \ng. Remedies. Any breach of this Agreement by a Director will entitle GBCI and/or Glacier Bank, together with their\nsuccessors and assigns, to injunctive relief and/or specific performance, as well as to any other legal or equitable remedies it\nmay be entitled to, it being agreed that money damages alone would be an inadequate remedy for such breach. The rights\nand remedies of the parties to this Agreement are cumulative and not alternative.\nh. Counterparts. This A greement may be executed in one or more counterparts, including facsimile and/or scanned\ncounterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same\ndocument.\n[Signatures appear on the following pages]\n \nIN WITNESS WHEREOE, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nGLACIER BANCORP, INC. FNB BANCORP\nB3Randall M. Chesler B3K. Jothones\nIt5President and CEO It5President and CEO\nGLACIER BANK THE FIRST NATIONAL\nBANK OF LAYTON\nB3Randall M. Chesler B3K. Jothones\nIt5President and CEO It5President and CEO\n[Director signatures appear on the following pages]\n[Signature Page to Non-Competition, Non-Solicitation, and Confidentiality Agreement]\n \nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nDIRECTOR:\n[Director Signature Page to Non—Competition, Non— Solicitation, and Confidentiality Agreement]	Exhibit 10.2\nNon-Competition, Non-Solicitation, and Confidentiality Agreement\nThis Non-Competition, Non-Solicitation, and Confidentiality A greement, dated as of January 16, 2019 (this "Agreement"), is made\nby\nand among Glacier Bancorp, Inc. ("GBCI"), Glacier Bank, a wholly owned subsidiary of GBCI ("Glacier Bank"), FNB Bancorp\n("FNB"), The First National Bank of Layton, a wholly owned subsidiary of FNB ("First National Bank"), and the undersigned, each\nof whom is a director of FNB and First National Bank (each, a "Director").\nRecitals\nA. FNB and First National Bank have entered into a Plan and A greement of Merger, dated January 16, 2019 (the "Merger\nAgreement"), with GBCI and Glacier Bank. Under the terms of the Merger A greement, FNB will merge with and into GBCI,\nFirst National Bank will merge with and into Glacier Bank (collectively, the "Merger"), and the former branches of First\nNational Bank will operate as a division of Glacier Bank (the "Division").\nB. The parties to this A greement believe that the future success of GBCI, Glacier Bank, and the Division following the Merger\nrequires that no Director be affiliated in any substantial way with a Competing Business for a reasonable period of time after\nclosing of the Merger or, if applicable, termination of such Director's service as a post- Merger member of the Division's\nadvisory board (the "Advisory Board").\nAgreement\nIn consideration of the parties' performance under the Merger A greement, each Director agrees as follows:\n1.\nDefinitions. Capitalized terms not defined in this A greement have the meaning assigned to those terms in the Merger\nA greement. The following definitions also apply to this greement:\na. A Competing Business" means any depository, financial institution, wealth management company, or trust company, or\nholding company thereof (including without limitation any start-up bank or bank in formation), operating anywhere within\nthe Covered Area.\nb.\nThe "Covered Area" means the following counties in the State of Utah: Box Elder County, Davis County, Morgan County,\nSalt Lake County, Summit County, Utah County, and Weber County.\nC.\nThe "Term" means, with respect to each Director, the period of time beginning on the Effective Date and ending on the\nlater to occur of (i) two (2) years after the Effective Date or, if applicable, (ii) one (1) year following the termination of any\nservice by such Director as a st-Merger member of the dvisory Board; provided, however, that in no event shall the\nTerm exceed four (4) years after the Effective Date.\n-1-\n2.\nParticipation in Competing Business. Except as provided in Section 5 or 6, during the Term, each Director agrees not to\nbecome involved with a Competing Business in any capacity or serve, directly or indirectly, a Competing Business in any\nmanner, including without limitation (a) as a shareholder, member, partner, director, officer, manager, investor, organizer,\nfounder, employee, consultant, agent, or representative, or (b) during the organization and pre-opening phases in the formation of\na Competing Business; provided, however that for the avoidance of doubt, the restrictions set forth herein shall not prevent\na\nDirector from using services of any Competing Business that are generally available to the public.\n3.\nNon-Solicitation. During the Term, each Director agrees not to, directly or indirectly, either for himself or herself or for any\nother person, solicit or attempt to solicit: (a) any employees or independent contractors of GBCI or GBCI's subsidiaries,\ndivisions, or affiliates to participate, as an employee or otherwise, in any manner in a Competing Business; (b) any customers,\nbusiness partners, or joint venturers of GBCI or GBCI's subsidiaries, divisions, or affiliates to transfer their business to a\nCompeting Business or to reduce such customers', business partners' or joint venturers' business or cease doing business with\nGBCI or GBCI's subsidiaries, divisions, or affiliates; or (c) the termination of an employment or contractual relationship\nbetween GBCI or GBCI's subsidiaries, divisions, or affiliates and any employee, independent contractor, customer, business\npartner or joint venturer. Solicitation prohibited under this Section 3 includes solicitation by any means, including without\nlimitation meetings, letters, or other direct mailings, electronic communications of any kind, and internet communications;\nprovided, however, that nothing contained in this Section 3 is intended to prohibit general advertising or general solicitation not\ndirected at such employees, general contractors, customers, business partners, or joint venturers.\n4.\nConfidential Information.\na.\nConfidentiality. During and after the Term, each Director shall not at any time, directly or indirectly, divulge, reveal, or\ncommunicate any Confidential Information of FNB, First National Bank, GBCI or GBCI's subsidiaries, divisions, or\naffiliates obtained by the Director while serving as a director of FNB and/or First National Bank (or, if applicable, as\na\nMerger member of the A dvisory Board) to any person or use any Confidential Information for his or her own benefit or\nfor the benefit of any other person. For purposes of this Agreement, "Confidential Information" includes all secrets and\nother confidential information, knowledge, know-how, sales, financial information, customers, lists of customers and\nprospective customers, broker lists, rate sheets, strategies, or products, as well as all documents, reports, and proposals\nrelating to the same, with respect to FNB, First National Bank, GBCI, or GBCI's subsidiaries, divisions, or affiliates.\nNotwithstanding the foregoing, 'Confidential Information" does not include (i) information that is or becomes generally\n-2-\navailable to the public other than as a result of an unauthorized disclosure by the Director, (ii) information that was in the\nDirector's possession prior to serving as a director of FNB and/or First National Bank or information received by the\nDirector from another person without any limitations on disclosure, but only if the Director had no reason to believe the\nother person was prohibited from using or disclosing the information by contractual or fiduciary obligation, or\n(iii) information that was independently developed by the Director without using any Confidential Information of FNB,\nFirst National Bank, GBCI, or GBCI's subsidiaries, divisions, or affiliates.\nb. Defend Trade Secrets Act. Pursuant to the Defend Trade Secrets A ct of 2016, 18 U.S.C. 1833(b), a Director will not be\nheld criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made\n(i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for\nthe purpose of reporting or investigating a suspected violation of law, or (ii) is made in a complaint or other document filed\nin a proceeding, if such filing is made under seal.\nC.\nLegally Required Disclosures. Notwithstanding any provision of this A greement to the contrary, a Director may disclose or\nreveal any information, whether including in whole or in part any Confidential Information, that such Director is required to\ndisclose or reveal under any applicable law or is otherwise required to disclose or reveal by any governmenta authority (by\noral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand, or other similar process); provided, however, that such Director makes a good faith request that the confidentiality\nof the Confidential Information be preserved and, to the extent not prohibited by applicable law, gives GBCI prompt notice\nof such requirement in advance of such disclosure and exercises reasonable efforts to preserve the confidentiality of such\nConfidential Information, including, without limitation, by reasonably cooperating with GBCI to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded to such Confidential Information by\nthe governmental authority or other recipient of the Confidential Information. If, in the absence of a protective order (or\nother reliable assurance) or the receipt of a written waiver from GBCI, the Director is nonetheless legally compelled to\ndisclose Confidential Information to a governmental authority, the Director may disclose to such governmental authority\nonly that portion of the Confidential Information which is legally required to be disclosed.\n5. Outside Covered Area; Requests for Consent. Nothing in this greement prevents a Director from becoming involved with,\nas a shareholder, member, partner, director, officer, manager, investor, organizer, founder, employee, consultant, agent,\nrepresentative, or otherwise, a financial institution that has no operations in the Covered Area. During the Term, prior to\nengaging in any manner in a Competing Business, a Director may request in writing that GBCI waive the restrictions set forth in\nthis greement with respect to a particular proposed activity. If GBCI determines, in its sole discretion, that such activity is\nacceptable, GBCI may provide such Director with written consent to engage in such activity, and such activity will thereafter not\nbe deemed a Competing Business.\n-3-\n6.\nPassive Interest. Notwithstanding anything to the contrary contained herein, nothing in this A greement will prevent a Director\nfrom owning two percent (2%) or less of any class of security of a Competing Business.\n7. Miscellaneous.\na.\nIndividual Obligations The obligations of each of the signatories to this A greement are independent of one another and are\nnot intended to be joint obligations of the undersigned. This A greement is intended to be enforceable by GBCI and/or\nGlacier Bank against each Director individually.\nb.\nSeverability. If any provision of this A greement or the application of such provision to any person or circumstances will be\nheld invalid or unenforceable by a court of competent jurisdiction, such provision or application will be unenforceable only\nto the extent of such invalidity or unenforceability, and the remainder of the provision held invalid or unenforceable and the\napplication of such provision to persons or circumstances other than the party as to which it is held invalid, and the\nremainder of this Agreement, will not be affected.\nC.\nReformation. If any court determines that the obligations and restrictions set forth in this A greement are unenforceable, then\nthe parties request such court to reform any unenforceable provisions to the maximum obligations or restrictions, term, and\nscope, as applicable, that such court finds enforceable.\nd.\nExpenses. Except as otherwise may be agreed in writing, all costs, fees, and expenses incurred in connection with this\nAgreement and the transactions contemplated hereby shall be paid by the party incurring such costs, fees, and expenses.\ne.\nA mendments; Waivers Any provision of this A greement may be amended or waived if, and only if, such amendment or\nwaiver is in writing and signed (i) in the case of an amendment, by GBCI and the Director to be bound by such amendment\nand (ii) in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by any party in\nexercising any right, power, or privilege under this A greement shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.\nf.\nGoverning Law. This A greement will be governed by and construed in accordance with the laws of the State of Utah,\nexcept to the extent that federal law may govern certain matters.\n-4-\ng.\nRemedies. Any breach of this Agreement by a Director will entitle GBCI and/or Glacier Bank, together with their\nsuccessors and assigns, to injunctive relief and/or specific performance, as well as to any other legal or equitable remedies it\nmay be entitled to, it being agreed that money damages alone would be an inadequate remedy for such breach. The rights\nand remedies of the parties to this Agreement are cumulative and not altemative.\nh.\nCounterparts. This A greement may be executed in one or more counterparts, including facsimile and/or scanned\ncounterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same\ndocument.\n[Signatures appear on the following pages]\n-5-\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nGLACIER BANCORP, INC.\nFNB BANCORP\nByRandall M. Chesler\nByK. John Jones\nItsresident and CEO\nItsPresident and CEO\nGLACIER BANK\nTHE FIRST NATIONAL\nBANK OF LAYTON\nByRandall M. Chesler\nByK. John Jones\nItsPresident and CEO\nItsPresident and CEO\nDirector signatures appear on the following pages]\n[Signature Page to Non-Competition, Non-Solicitation, and Confidentiality Agreement]\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nDIRECTOR:\n[Director Signature Page to Non-Competition, Non-Solicitation, and Confidentiality Agreement]	Exhibit 10.2\nNon–Competition, Non–Solicitation, and Confidentiality Agreement\nThis Non–Competition, Non–Solicitation, and Confidentiality Agreement, dated as of January 16, 2019 (this “Agreement”), is made\nby and among Glacier Bancorp, Inc. (“GBCI”), Glacier Bank, a wholly owned subsidiary of GBCI (“Glacier Bank”), FNB Bancorp\n(“FNB”), The First National Bank of Layton, a wholly owned subsidiary of FNB (“First National Bank”), and the undersigned, each\nof whom is a director of FNB and First National Bank (each, a “Director”).\nRecitals\nA. FNB and First National Bank have entered into a Plan and Agreement of Merger, dated January 16, 2019 (the “Merger\nAgreement”), with GBCI and Glacier Bank. Under the terms of the Merger Agreement, FNB will merge with and into GBCI,\nFirst National Bank will merge with and into Glacier Bank (collectively, the “Merger”), and the former branches of First\nNational Bank will operate as a division of Glacier Bank (the “Division”).\nB. The parties to this Agreement believe that the future success of GBCI, Glacier Bank, and the Division following the Merger\nrequires that no Director be affiliated in any substantial way with a Competing Business for a reasonable period of time after\nclosing of the Merger or, if applicable, termination of such Director’s service as a post-Merger member of the Division’s\nadvisory board (the “Advisory Board”).\nAgreement\nIn consideration of the parties’ performance under the Merger Agreement, each Director agrees as follows:\n1. Definitions. Capitalized terms not defined in this Agreement have the meaning assigned to those terms in the Merger\nAgreement. The following definitions also apply to this Agreement:\na. A “Competing Business” means any depository, financial institution, wealth management company, or trust company, or\nholding company thereof (including without limitation any start-up bank or bank in formation), operating anywhere within\nthe Covered Area.\nb. The “Covered Area” means the following counties in the State of Utah: Box Elder County, Davis County, Morgan County,\nSalt Lake County, Summit County, Utah County, and Weber County.\nc. The “Term” means, with respect to each Director, the period of time beginning on the Effective Date and ending on the\nlater to occur of (i) two (2) years after the Effective Date or, if applicable, (ii) one (1) year following the termination of any\nservice by such Director as a post-Merger member of the Advisory Board; provided, however, that in no event shall the\nTerm exceed four (4) years after the Effective Date.\n-1-\n2. Participation in Competing Business. Except as provided in Section 5 or 6, during the Term, each Director agrees not to\nbecome involved with a Competing Business in any capacity or serve, directly or indirectly, a Competing Business in any\nmanner, including without limitation (a) as a shareholder, member, partner, director, officer, manager, investor, organizer,\nfounder, employee, consultant, agent, or representative, or (b) during the organization and pre-opening phases in the formation of\na Competing Business; provided, however, that for the avoidance of doubt, the restrictions set forth herein shall not prevent a\nDirector from using services of any Competing Business that are generally available to the public.\n3. Non-Solicitation. During the Term, each Director agrees not to, directly or indirectly, either for himself or herself or for any\nother person, solicit or attempt to solicit: (a) any employees or independent contractors of GBCI or GBCI’s subsidiaries,\ndivisions, or affiliates to participate, as an employee or otherwise, in any manner in a Competing Business; (b) any customers,\nbusiness partners, or joint venturers of GBCI or GBCI’s subsidiaries, divisions, or affiliates to transfer their business to a\nCompeting Business or to reduce such customers’, business partners’ or joint venturers’ business or cease doing business with\nGBCI or GBCI’s subsidiaries, divisions, or affiliates; or (c) the termination of an employment or contractual relationship\nbetween GBCI or GBCI’s subsidiaries, divisions, or affiliates and any employee, independent contractor, customer, business\npartner, or joint venturer. Solicitation prohibited under this Section 3 includes solicitation by any means, including without\nlimitation meetings, letters, or other direct mailings, electronic communications of any kind, and internet communications;\nprovided, however, that nothing contained in this Section 3 is intended to prohibit general advertising or general solicitation not\ndirected at such employees, general contractors, customers, business partners, or joint venturers.\n4. Confidential Information.\na. Confidentiality. During and after the Term, each Director shall not at any time, directly or indirectly, divulge, reveal, or\ncommunicate any Confidential Information of FNB, First National Bank, GBCI or GBCI’s subsidiaries, divisions, or\naffiliates obtained by the Director while serving as a director of FNB and/or First National Bank (or, if applicable, as a\npost-Merger member of the Advisory Board) to any person or use any Confidential Information for his or her own benefit or\nfor the benefit of any other person. For purposes of this Agreement, “Confidential Information” includes all secrets and\nother confidential information, knowledge, know-how, sales, financial information, customers, lists of customers and\nprospective customers, broker lists, rate sheets, strategies, or products, as well as all documents, reports, and proposals\nrelating to the same, with respect to FNB, First National Bank, GBCI, or GBCI’s subsidiaries, divisions, or affiliates.\nNotwithstanding the foregoing, “Confidential Information” does not include (i) information that is or becomes generally\n-2-\navailable to the public other than as a result of an unauthorized disclosure by the Director, (ii) information that was in the\nDirector’s possession prior to serving as a director of FNB and/or First National Bank or information received by the\nDirector from another person without any limitations on disclosure, but only if the Director had no reason to believe the\nother person was prohibited from using or disclosing the information by contractual or fiduciary obligation, or\n(iii) information that was independently developed by the Director without using any Confidential Information of FNB,\nFirst National Bank, GBCI, or GBCI’s subsidiaries, divisions, or affiliates.\nb. Defend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, 18 U.S .C . § 1833(b), a Director will not be\nheld criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made\n(i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for\nthe purpose of reporting or investigating a suspected violation of law, or (ii) is made in a complaint or other document filed\nin a proceeding, if such filing is made under seal.\nc. Legally Required Disclosures. Notwithstanding any provision of this Agreement to the contrary, a Director may disclose or\nreveal any information, whether including in whole or in part any Confidential Information, that such Director is required to\ndisclose or reveal under any applicable law or is otherwise required to disclose or reveal by any governmental authority (by\noral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand, or other similar process); provided, however, that such Director makes a good faith request that the confidentiality\nof the Confidential Information be preserved and, to the extent not prohibited by applicable law, gives GBCI prompt notice\nof such requirement in advance of such disclosure and exercises reasonable efforts to preserve the confidentiality of such\nConfidential Information, including, without limitation, by reasonably cooperating with GBCI to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded to such Confidential Information by\nthe governmental authority or other recipient of the Confidential Information. If, in the absence of a protective order (or\nother reliable assurance) or the receipt of a written waiver from GBCI, the Director is nonetheless legally compelled to\ndisclose Confidential Information to a governmental authority, the Director may disclose to such governmental authority\nonly that portion of the Confidential Information which is legally required to be disclosed.\n5. Outside Covered Area; Requests for Consent. Nothing in this Agreement prevents a Director from becoming involved with,\nas a shareholder, member, partner, director, officer, manager, investor, organizer, founder, employee, consultant, agent,\nrepresentative, or otherwise, a financial institution that has no operations in the Covered Area. During the Term, prior to\nengaging in any manner in a Competing Business, a Director may request in writing that GBCI waive the restrictions set forth in\nthis Agreement with respect to a particular proposed activity. If GBCI determines, in its sole discretion, that such activity is\nacceptable, GBCI may provide such Director with written consent to engage in such activity, and such activity will thereafter not\nbe deemed a Competing Business.\n-3-\n6. Passive Interest. Notwithstanding anything to the contrary contained herein, nothing in this Agreement will prevent a Director\nfrom owning two percent (2%) or less of any class of security of a Competing Business.\n7. Miscellaneous.\na. Individual Obligations. The obligations of each of the signatories to this Agreement are independent of one another and are\nnot intended to be joint obligations of the undersigned. This Agreement is intended to be enforceable by GBCI and/or\nGlacier Bank against each Director individually.\nb. Severability. If any provision of this Agreement or the application of such provision to any person or circumstances will be\nheld invalid or unenforceable by a court of competent jurisdiction, such provision or application will be unenforceable only\nto the extent of such invalidity or unenforceability, and the remainder of the provision held invalid or unenforceable and the\napplication of such provision to persons or circumstances, other than the party as to which it is held invalid, and the\nremainder of this Agreement, will not be affected.\nc. Reformation. If any court determines that the obligations and restrictions set forth in this Agreement are unenforceable, then\nthe parties request such court to reform any unenforceable provisions to the maximum obligations or restrictions, term, and\nscope, as applicable, that such court finds enforceable.\nd. Expenses. Except as otherwise may be agreed in writing, all costs, fees, and expenses incurred in connection with this\nAgreement and the transactions contemplated hereby shall be paid by the party incurring such costs, fees, and expenses.\ne. Amendments; Waivers. Any provision of this Agreement may be amended or waived if, and only if, such amendment or\nwaiver is in writing and signed (i) in the case of an amendment, by GBCI and the Director to be bound by such amendment,\nand (ii) in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by any party in\nexercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.\nf. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Utah,\nexcept to the extent that federal law may govern certain matters.\n-4-\ng. Remedies. Any breach of this Agreement by a Director will entitle GBCI and/or Glacier Bank, together with their\nsuccessors and assigns, to injunctive relief and/or specific performance, as well as to any other legal or equitable remedies it\nmay be entitled to, it being agreed that money damages alone would be an inadequate remedy for such breach. The rights\nand remedies of the parties to this Agreement are cumulative and not alternative.\nh. Counterparts. This Agreement may be executed in one or more counterparts, including facsimile and/or scanned\ncounterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same\ndocument.\n[Signatures appear on the following pages]\n-5-\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nGLACIER BANCORP, INC.\nFNB BANCORP\nBy:Randall M. Chesler\nBy:K. John Jones\nIts:President and CEO\nIts:President and CEO\nGLACIER BANK\nTHE FIRST NATIONAL\nBANK OF LAYTON\nBy:Randall M. Chesler\nBy:K. John Jones\nIts:President and CEO\nIts:President and CEO\n[Director signatures appear on the following pages]\n[Signature Page to Non-Competition, Non-Solicitation, and Confidentiality Agreement]\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nDIRECTOR:\n[Director Signature Page to Non–Competition, Non–Solicitation, and Confidentiality Agreement]
+9c945db7f1dc0702f98a1e2b4dad7adc.pdf	effective_date jurisdiction party term	EX-99.(D)(9) 16 dex99d9.htm MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(9)\nPROJECT ATHENS\nCONFIDENTIAL\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”) by and between Raytheon Company, a Delaware corporation, including on behalf\nof its subsidiaries, and Applied Signal Technology, Inc., a California corporation, including on behalf of its subsidiaries (each a “Party” and\ncollectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto.\n1. General. In connection with the consideration of a possible transaction (a “Possible Transaction”) between the Parties, each Party (in its\ncapacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Party (in its capacity as a recipient of\ninformation hereunder, a “Recipient”) certain Evaluation Material (as defined in Section 2 below) in accordance with the provisions of this\nAgreement, and to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its\nRepresentatives (as defined below) in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial\ncondition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared\nby the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider\nhereunder. The term Evaluation Material does not include information which (i) is or becomes publicly available other than as a result of a\ndisclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being\nfurnished to the Recipient by or on behalf of the Provider, (iii) is or becomes available to the Recipient on a non-confidential basis from a\nsource other than the Provider or its Representatives, (iv) Recipient can reasonably show was independently developed by the Recipient or the\nRecipient’s Representatives without the use of or reference to any Evaluation Material provided by or on behalf of Provider or its\nRepresentatives or (v) is intentionally released by Provider to a third party without any restriction as to use or disclosure.\n(b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without\nlimitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable.\n(c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. Each Recipient shall use the Evaluation Material solely for the purpose of evaluating a Possible Transaction\nand, subject to Section 5, will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such\ninformation may be disclosed to the Recipient’s Representatives for the purpose of helping the Recipient evaluate a Possible Transaction.\n4. Non-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other Party, such Party\nwill not, and will instruct its Representative not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Parties,\n(ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or\n(iii) any of the terms, conditions or other facts with respect thereto (including the status thereof); provided, however, that nothing contained herein\nshall be deemed to inhibit, impair or restrict the ability of Recipient or its Representatives from having discussions or negotiations with other persons\nrelating to potential financing in connection with the Possible Transaction so long as each of such Persons agrees in writing to be bound by the terms\nof this Agreement. Each Party shall be responsible for any breach of this Agreement by any of its Representatives.\n5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests\nfor information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation\nMaterial or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall, unless it is advised in good faith by its\ncounsel that it is not legally permitted to do so, provide the Provider with prompt written notice of any such request or requirement. If, in the absence\nof a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or any of its Representatives is advised in good faith by\nits counsel that it is nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under\nSection 4, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such\nEvaluation Material or any such facts which the Recipient or its Representatives is advised in good faith by its counsel is legally required to be\ndisclosed.\n6. Termination of Discussions. If either Party decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the\nother Party of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, promptly after receipt of such\nnotice or request, destroy all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities,\nand no copy or extract thereof (including electronic copies) shall be retained. Notwithstanding the foregoing, (i) a Recipient shall not be required to\ndelete, erase or destroy any Evaluation Material contained in an archived computer backup system stored as a result of automated back-up\nprocedures, and (ii) a Recipient may retain one copy of the Evaluation Material in its Office of the General Counsel solely for record-keeping\npurposes. The Recipient shall provide to the Provider a certificate of compliance with this provision. Notwithstanding the destruction or retention of\nthe Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to\nsuch Evaluation Material.\n7. No Solicitation. Each Recipient agrees that, for eighteen months from the date of this Agreement, no person in its organization who receives\nor has access to the Evaluation Material or has knowledge about the Possible Transaction will, directly or indirectly, solicit, or cause the soliciting of,\nor assist or encourage others in the soliciting of, the employment or consulting services of any of the officers of a Provider or any of its subsidiaries\nor employees engaged in research and development for Provider or any of its subsidiaries or any other employee of the Provider or any if its\nsubsidiaries with whom the Recipient has had contact in connection with its evaluation of a Possible Transaction or of whom it has become aware as\na result of its receipt of any Evaluation Material, so long as they are employed by the Provider or any of its subsidiaries and for two months\nthereafter (each, a “Covered Employee”). A Recipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any\nparticular individual or the employees of the Provider or its subsidiaries generally, or (ii) engaging any recruiting firm or similar organization to\nidentify or solicit individuals for employment on behalf of such Recipient (and soliciting any person identified by any such recruiting firm or\norganization) so long as such Recipient does not identify the individuals to be solicited by such recruiting firm or organization. The provisions of this\nSection 7 shall terminate and be of no further effect with respect to the Covered Employees upon the acquisition of such Provider by a third party.\n2\n8. Standstill. Each Party agrees that, for a period of eighteen (18) months from the date of this Agreement (the “Standstill Period”), unless\nspecifically invited in writing by the other Party, neither it nor any of its majority-owned subsidiaries will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way intentionally assist any\nother Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Party or any of its subsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving the other Party or any of its subsidiaries,\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party\nor any of its subsidiaries, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of the other Party;\n(b) form, join or in any way participate in a “group” (as defined under the Securities Exchange Act of 1934, as amended) with respect to\nthe securities of the other Party;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without conditions), any\nextraordinary transaction involving the other Party or its securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to change or influence the control of the management, Board of Directors or\npolicies of the other Party;\n(e) take any action which might force the other Party to make a public announcement regarding any of the types of matters set forth in\n(a) above; or\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Party also agrees during\nsuch period not to request the other Party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any\nprovision of this paragraph (including this sentence).\nNotwithstanding anything in this Section 8 to the contrary, if, at any time during the Standstill Period, (A) an announcement is made by a\nProvider or any other person (other than the Recipient or its Representatives) that a third party (other than the Recipient or its Representatives) is or\nmay be interested in acquiring at least twenty percent (20%) of the outstanding capital stock of the Provider, voting control or a material part of the\nProvider’s assets (by way of a tender offer, exchange offer, proxy contest, acquisition or other similar transaction), or (B) a definitive agreement is\nexecuted by the Provider with a third party relating to such an acquisition of capital stock or assets, the restrictions set forth in this Section 8 shall\nimmediately terminate and cease to be of any further effect on the Recipient.\n3\nNotwithstanding any other provision of this Section 8, nothing in this Agreement shall prohibit or otherwise restrict a Recipient’s ability, either\ndirectly or through its Representative(s), to make any confidential proposal or offer, or to negotiate a confidential proposal or offer, with respect to a\nProvider to, or through, the Provider’s Board of Directors, the Chairman of the Board, the Chief Executive Officer, or any other officer of the\nProvider authorized by any of the foregoing to discuss offers or proposals (a “Permitted Proposal”), so long as the Permitted Proposal and\nnegotiations related to a Permitted Proposal are not made public by the Recipient or its Representatives in violation of this Agreement. Further, the\nParties agree that the (a) restrictions in this Agreement shall not prevent (i) any pension plan related to a Recipient or its subsidiaries from acquiring,\nor offering to acquire, securities of a Provider at any time or (ii) a Recipient’s financial advisors from engaging in ordinary course brokerage or other\ntransactions involving the securities of a Provider at any time to the extent such transactions are executed by or on behalf of customers other than\nsuch Recipient or its subsidiaries.\n9. Compliance with Securities Laws. Each Recipient agrees not to use any Evaluation Material of the Provider in violation of applicable\nsecurities laws.\n10. Not a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered by both Parties. Each\nParty also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Party\nwill be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the\nmatters specifically agreed to herein. Neither Party is under any obligation to accept any proposal regarding a Possible Transaction, and either Party\nmay terminate discussions and negotiations with the other Party at any time.\n11. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of\nthe other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n12. Remedies. Each Party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by\neither Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to seek equitable relief,\nincluding injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the\nexclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other remedies available at law or equity to the Party\nagainst which such breach is committed.\n13. Governing Law. This Agreement is for the benefit of each Party and shall be governed by and construed in accordance with the laws of\nCalifornia applicable to agreements made and to be performed entirely within such state.\n14. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n4\n15. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n16. Term. This Agreement shall terminate two years after the date hereof.\n17. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n18. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of\nthe date written below.\nRAYTHEON COMPANY\nAPPLIED SIGNAL TECHNOLOGY, INC.\nBy: /s/ Kathryn G. Simpson\nBy: /s/ William B. Van Vleet\nName: Kathryn G. Simpson\nName: William Van Vleet\nTitle: Vice President, Legal – Corporate\nTransactions and Governance\nTitle: Chief Executive Officer, President\nand Director\nDate: October 19, 2010\nDate: October 19, 2010\n5	EX-99.(D)(9) 16 dex99d9.htm MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(9)\nPROJECT ATHENS\nCONFIDENTIAL\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”) by and between Raytheon Company, a Delaware corporation, including on behalf\nof its subsidiaries, and Applied Signal Technology, Inc., a California corporation, including on behalf of its subsidiaries (each a “Party” and\ncollectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto.\n1. General. In connection with the consideration of a possible transaction (a “Possible Transaction”) between the Parties, each Party (in its\ncapacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Party (in its capacity as a recipient of\ninformation hereunder, a “Recipient”) certain Evaluation Material (as defined in Section 2 below) in accordance with the provisions of this\nAgreement, and to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its\nRepresentatives (as defined below) in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial\ncondition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared\nby the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider\nhereunder. The term Evaluation Material does not include information which (i) is or becomes publicly available other than as a result of a\ndisclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being\nfurnished to the Recipient by or on behalf of the Provider, (iii) is or becomes available to the Recipient on a non-confidential basis from a\nsource other than the Provider or its Representatives, (iv) Recipient can reasonably show was independently developed by the Recipient or the\nRecipient’s Representatives without the use of or reference to any Evaluation Material provided by or on behalf of Provider or its\nRepresentatives or (v) is intentionally released by Provider to a third party without any restriction as to use or disclosure.\n(b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without\nlimitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable.\n(c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. Each Recipient shall use the Evaluation Material solely for the purpose of evaluating a Possible Transaction\nand, subject to Section 5, will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such\ninformation may be disclosed to the Recipient’s Representatives for the purpose of helping the Recipient evaluate a Possible Transaction.\n4. Non-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other Party, such Party\nwill not, and will instruct its Representative not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Parties,\n(ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or\n(iii) any of the terms, conditions or other facts with respect thereto (including the status thereof); provided, however, that nothing contained herein\nshall be deemed to inhibit, impair or restrict the ability of Recipient or its Representatives from having discussions or negotiations with other persons\nrelating to potential financing in connection with the Possible Transaction so long as each of such Persons agrees in writing to be bound by the terms\nof this Agreement. Each Party shall be responsible for any breach of this Agreement by any of its Representatives.\n5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests\nfor information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation\nMaterial or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall, unless it is advised in good faith by its\ncounsel that it is not legally permitted to do so, provide the Provider with prompt written notice of any such request or requirement. If, in the absence\nof a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or any of its Representatives is advised in good faith by\nits counsel that it is nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under\nSection 4, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such\nEvaluation Material or any such facts which the Recipient or its Representatives is advised in good faith by its counsel is legally required to be\ndisclosed.\n6. Termination of Discussions. If either Party decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the\nother Party of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, promptly after receipt of such\nnotice or request, destroy all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities,\nand no copy or extract thereof (including electronic copies) shall be retained. Notwithstanding the foregoing, (i) a Recipient shall not be required to\ndelete, erase or destroy any Evaluation Material contained in an archived computer backup system stored as a result of automated back-up\nprocedures, and (ii) a Recipient may retain one copy of the Evaluation Material in its Office of the General Counsel solely for record-keeping\npurposes. The Recipient shall provide to the Provider a certificate of compliance with this provision. Notwithstanding the destruction or retention of\nthe Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to\nsuch Evaluation Material.\n7. No Solicitation. Each Recipient agrees that, for eighteen months from the date of this Agreement, no person in its organization who receives\nor has access to the Evaluation Material or has knowledge about the Possible Transaction will, directly or indirectly, solicit, or cause the soliciting of,\nor assist or encourage others in the soliciting of, the employment or consulting services of any of the officers of a Provider or any of its subsidiaries\nor employees engaged in research and development for Provider or any of its subsidiaries or any other employee of the Provider or any if its\nsubsidiaries with whom the Recipient has had contact in connection with its evaluation of a Possible Transaction or of whom it has become aware as\na result of its receipt of any Evaluation Material, so long as they are employed by the Provider or any of its subsidiaries and for two months\nthereafter (each, a “Covered Employee”). A Recipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any\nparticular individual or the employees of the Provider or its subsidiaries generally, or (ii) engaging any recruiting firm or similar organization to\nidentify or solicit individuals for employment on behalf of such Recipient (and soliciting any person identified by any such recruiting firm or\norganization) so long as such Recipient does not identify the individuals to be solicited by such recruiting firm or organization. The provisions of this\nSection 7 shall terminate and be of no further effect with respect to the Covered Employees upon the acquisition of such Provider by a third party.\n2\n8. Standstill. Each Party agrees that, for a period of eighteen (18) months from the date of this Agreement (the “Standstill Period”), unless\nspecifically invited in writing by the other Party, neither it nor any of its majority-owned subsidiaries will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way intentionally assist any\nother Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Party or any of its subsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving the other Party or any of its subsidiaries,\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party\nor any of its subsidiaries, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of the other Party;\n(b) form, join or in any way participate in a “group” (as defined under the Securities Exchange Act of 1934, as amended) with respect to\nthe securities of the other Party;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without conditions), any\nextraordinary transaction involving the other Party or its securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to change or influence the control of the management, Board of Directors or\npolicies of the other Party;\n(e) take any action which might force the other Party to make a public announcement regarding any of the types of matters set forth in\n(a) above; or\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Party also agrees during\nsuch period not to request the other Party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any\nprovision of this paragraph (including this sentence).\nNotwithstanding anything in this Section 8 to the contrary, if, at any time during the Standstill Period, (A) an announcement is made by a\nProvider or any other person (other than the Recipient or its Representatives) that a third party (other than the Recipient or its Representatives) is or\nmay be interested in acquiring at least twenty percent (20%) of the outstanding capital stock of the Provider, voting control or a material part of the\nProvider’s assets (by way of a tender offer, exchange offer, proxy contest, acquisition or other similar transaction), or (B) a definitive agreement is\nexecuted by the Provider with a third party relating to such an acquisition of capital stock or assets, the restrictions set forth in this Section 8 shall\nimmediately terminate and cease to be of any further effect on the Recipient.\n3\nNotwithstanding any other provision of this Section 8, nothing in this Agreement shall prohibit or otherwise restrict a Recipient’s ability, either\ndirectly or through its Representative(s), to make any confidential proposal or offer, or to negotiate a confidential proposal or offer, with respect to a\nProvider to, or through, the Provider’s Board of Directors, the Chairman of the Board, the Chief Executive Officer, or any other officer of the\nProvider authorized by any of the foregoing to discuss offers or proposals (a “Permitted Proposal”), so long as the Permitted Proposal and\nnegotiations related to a Permitted Proposal are not made public by the Recipient or its Representatives in violation of this Agreement. Further, the\nParties agree that the (a) restrictions in this Agreement shall not prevent (i) any pension plan related to a Recipient or its subsidiaries from acquiring,\nor offering to acquire, securities of a Provider at any time or (ii) a Recipient’s financial advisors from engaging in ordinary course brokerage or other\ntransactions involving the securities of a Provider at any time to the extent such transactions are executed by or on behalf of customers other than\nsuch Recipient or its subsidiaries.\n9. Compliance with Securities Laws. Each Recipient agrees not to use any Evaluation Material of the Provider in violation of applicable\nsecurities laws.\n10. Not a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered by both Parties. Each\nParty also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Party\nwill be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the\nmatters specifically agreed to herein. Neither Party is under any obligation to accept any proposal regarding a Possible Transaction, and either Party\nmay terminate discussions and negotiations with the other Party at any time.\n11. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of\nthe other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n12. Remedies. Each Party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by\neither Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to seek equitable relief,\nincluding injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the\nexclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other remedies available at law or equity to the Party\nagainst which such breach is committed.\n13. Governing Law. This Agreement is for the benefit of each Party and shall be governed by and construed in accordance with the laws of\nCalifornia applicable to agreements made and to be performed entirely within such state.\n14. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n15. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n16. Term. This Agreement shall terminate two years after the date hereof.\n17. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n18. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of\nthe date written below.\nRAYTHEON COMPANY APPLIED SIGNAL TECHNOLOGY, INC.\nBy: /s/ Kathryn G. Simpson By: /s/ William B. Van Vleet\nName: Kathryn G. Simpson Name: William Van Vleet\nTitle: Vice President, Legal — Corporate Title: Chief Executive Officer, President\nTransactions and Governance and Director\nDate: October 19, 2010 Date: October 19, 2010	EX-99.(D)(9) 16 dex99d9.htm MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(9)\nPROJECT ATHENS\nCONFIDENTIAL\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this "Agreement") by and between Raytheon Company, a Delaware corporation, including on behalf\nof its subsidiaries, and Applied Signal Technology, Inc., a California corporation, including on behalf of its subsidiaries (each a "Party" and\ncollectively, the "Parties"), is dated as of the latest date set forth on the signature page hereto.\n1. General. In connection with the consideration of a possible transaction (a "Possible Transaction") between the Parties, each Party (in its\ncapacity as a provider of information hereunder, a "Provider") is prepared to make available to the other Party (in its capacity as a recipient of\ninformation hereunder, a "Recipient") certain Evaluation Material (as defined in Section 2 below) in accordance with the provisions of this\nAgreement, and to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term "Evaluation Material" means information concerning the Provider which has been or is furnished to the Recipient or\nits\nRepresentatives (as defined below) in connection with the Recipient's evaluation of a Possible Transaction, including its business, financial\ncondition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared\nby the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider\nhereunder. The term Evaluation Material does not include information which (i) is or becomes publicly available other than as a result of\na\ndisclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient's possession prior to its being\nfurnished to the Recipient by or on behalf of the Provider, (iii) is or becomes available to the Recipient on a non-confidential basis from a\nsource other than the Provider or its Representatives, (iv) Recipient can reasonably show was independently developed by the Recipient or the\nRecipient's Representatives without the use of or reference to any Evaluation Material provided by or on behalf of Provider or its\nRepresentatives or (v) is intentionally released by Provider to a third party without any restriction as to use or disclosure.\n(b) The term "Representatives" shall include the directors, officers, employees, agents, partners or advisors (including, without\nlimitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable.\n(c) The term "Person" includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. Each Recipient shall use the Evaluation Material solely for the purpose of evaluating a Possible Transaction\nand, subject to Section 5, will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such\ninformation may be disclosed to the Recipient's Representatives for the purpose of helping the Recipient evaluate a Possible Transaction.\n4. Non-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other Party, such Party\nwill not, and will instruct its Representative not to, disclose to any other Person (i) that Evaluation Material has been exchanged between\nthe\nParties,\n(ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or\n(iii) any of the terms, conditions or other facts with respect thereto (including the status thereof); provided, however, that nothing contained herein\nshall be deemed to inhibit, impair or restrict the ability of Recipient or its Representatives from having discussions or negotiations with other persons\nrelating to potential financing in connection with the Possible Transaction so long as each of such Persons agrees in writing to be bound by the terms\nof this Agreement. Each Party shall be responsible for any breach of this Agreement by any of its Representatives.\n5.\nLegally\nRequired\nDisclosure.\nIf\na\nRecipient\nor\nits\nRepresentatives\nare\nrequested\nor\nrequired\n(by\noral\nquestions,\ninterrogatories,\nother\nrequests\nfor information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation\nMaterial or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall, unless it is advised in good faith by its\ncounsel that it is not legally permitted to do so, provide the Provider with prompt written notice of any such request or requirement. If, in the absence\nof a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or any of its Representatives is advised in good faith by\nits counsel that it is nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under\nSection 4, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such\nEvaluation Material or any such facts which the Recipient or its Representatives is advised in good faith by its counsel is legally required to be\ndisclosed.\n6.\nTermination of Discussions. If either Party decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the\nother Party of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, promptly after receipt of such\nnotice or request, destroy all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities,\nand no copy or extract thereof (including electronic copies) shall be retained. Notwithstanding the foregoing, (i) a Recipient shall not be required to\ndelete, erase or destroy any Evaluation Material contained in an archived computer backup system stored as a result of automated back-up\nprocedures, and (ii) a Recipient may retain one copy of the Evaluation Material in its Office of the General Counsel solely for record-keeping\npurposes. The Recipient shall provide to the Provider a certificate of compliance with this provision. Notwithstanding the destruction or retention\nof\nthe Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient's obligations hereunder with respect\nto\nsuch Evaluation Material.\n7. No Solicitation. Each Recipient agrees that, for eighteen months from the date of this Agreement, no person in its organization who receives\nor has access to the Evaluation Material or has knowledge about the Possible Transaction will, directly or indirectly, solicit, or cause the soliciting of,\nor assist or encourage others in the soliciting of, the employment or consulting services of any of the officers of a Provider or any of its subsidiaries\nor employees engaged in research and development for Provider or any of its subsidiaries or any other employee of the Provider or any if its\nsubsidiaries with whom the Recipient has had contact in connection with its evaluation of a Possible Transaction or of whom it has become aware\nas\na result of its receipt of any Evaluation Material, so long as they are employed by the Provider or any of its subsidiaries and for two months\nthereafter (each, a "Covered Employee"). A Recipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any\nparticular individual or the employees of the Provider or its subsidiaries generally, or (ii) engaging any recruiting firm or similar organization\nto\nidentify or solicit individuals for employment on behalf of such Recipient (and soliciting any person identified by any such recruiting firm or\norganization) so long as such Recipient does not identify the individuals to be solicited by such recruiting firm or organization. The provisions of this\nSection 7 shall terminate and be of no further effect with respect to the Covered Employees upon the acquisition of such Provider by a third party.\n2\n8. Standstill. Each Party agrees that, for a period of eighteen (18) months from the date of this Agreement (the "Standstill Period"), unless\nspecifically invited in writing by the other Party, neither it nor any of its majority-owned subsidiaries will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way intentionally assist any\nother Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Party or any of its subsidiaries,\n(ii)\nany tender or exchange offer, merger or other business combination involving the other Party or any of its subsidiaries,\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party\nor any of its subsidiaries, or\n(iv)\nany "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of the other Party;\n(b) form, join or in any way participate in a "group" (as defined under the Securities Exchange Act of 1934, as amended) with respect to\nthe securities of the other Party;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without conditions), any\nextraordinary transaction involving the other Party or its securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to change or influence the control of the management, Board of Directors or\npolicies of the other Party;\n(e) take any action which might force the other Party to make a public announcement regarding any of the types of matters set forth in\n(a) above; or\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Party also agrees during\nsuch period not to request the other Party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any\nprovision of this paragraph (including this sentence).\nNotwithstanding anything in this Section 8 to the contrary, if, at any time during the Standstill Period, (A) an announcement is made by\na\nProvider or any other person (other than the Recipient or its Representatives) that a third party (other than the Recipient or its Representatives) is or\nmay be interested in acquiring at least twenty percent (20%) of the outstanding capital stock of the Provider, voting control or a material part of the\nProvider's assets (by way of a tender offer, exchange offer, proxy contest, acquisition or other similar transaction), or (B) a definitive agreement is\nexecuted by the Provider with a third party relating to such an acquisition of capital stock or assets, the restrictions set forth in this Section 8 shall\nimmediately terminate and cease to be of any further effect on the Recipient.\n3\nNotwithstanding any other provision of this Section 8, nothing in this Agreement shall prohibit or otherwise restrict a Recipient's ability, either\ndirectly or through its Representative(s), to make any confidential proposal or offer, or to negotiate a confidential proposal or offer, with respect to a\nProvider to, or through, the Provider's Board of Directors, the Chairman of the Board, the Chief Executive Officer, or any other officer of\nthe\nProvider authorized by any of the foregoing to discuss offers or proposals (a "Permitted Proposal"), so long as the Permitted Proposal and\nnegotiations related to a Permitted Proposal are not made public by the Recipient or its Representatives in violation of this Agreement. Further,\nthe\nParties agree that the (a) restrictions in this Agreement shall not prevent (i) any pension plan related to a Recipient or its subsidiaries from acquiring,\nor\noffering to acquire, securities of a Provider at any time or (ii) a Recipient's financial advisors from engaging in ordinary course brokerage or other\ntransactions involving the securities of a Provider at any time to the extent such transactions are executed by or on behalf of customers other than\nsuch Recipient or its subsidiaries.\n9. Compliance with Securities Laws. Each Recipient agrees not to use any Evaluation Material of the Provider in violation of applicable\nsecurities laws.\n10. Not a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered by both Parties. Each\nParty also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Party\nwill be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the\nmatters specifically agreed to herein. Neither Party is under any obligation to accept any proposal regarding a Possible Transaction, and either Party\nmay terminate discussions and negotiations with the other Party at any time.\n11.\nModifications\nand\nWaiver.\nNo\nprovision\nof\nthis\nAgreement\ncan\nbe\nwaived\nor\namended\nin\nfavor\nof\neither\nParty\nexcept\nby\nwritten\nconsent\nof\nthe other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n12. Remedies. Each Party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by\neither Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to seek equitable relief,\nincluding injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the\nexclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other remedies available at law or equity to the Party\nagainst which such breach is committed.\n13. Governing Law. This Agreement is for the benefit of each Party and shall be governed by and construed in accordance with the laws of\nCalifornia applicable to agreements made and to be performed entirely within such state.\n14. Severability.. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n4\n15. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n16. Term. This Agreement shall terminate two years after the date hereof.\n17. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n18. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall\nbe\ndeemed to constitute a single instrument.\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of\nthe date written below.\nRAYTHEON COMPANY\nAPPLIED SIGNAL TECHNOLOGY, INC.\nBy: /s/ Kathryn G. Simpson\nBy: /s/ William B. Van Vleet\nName: Kathryn G. Simpson\nName: William Van Vleet\nTitle: Vice President, Legal - Corporate\nTitle: Chief Executive Officer, President\nTransactions and Governance\nand Director\nDate: October 19, 2010\nDate: October 19, 2010\n5	EX-99.(D)(9) 16 dex99d9.htm MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(9)\nPROJECT ATHENS\nCONFIDENTIAL\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”) by and between Raytheon Company, a Delaware corporation, including on behalf\nof its subsidiaries, and Applied Signal Technology, Inc., a California corporation, including on behalf of its subsidiaries (each a “Party” and\ncollectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto.\n1. General. In connection with the consideration of a possible transaction (a “Possible Transaction”) between the Parties, each Party (in its\ncapacity as a provider of information hereunder, a “Provider”) is prepared to make available to the other Party (in its capacity as a recipient of\ninformation hereunder, a “Recipient”) certain Evaluation Material (as defined in Section 2 below) in accordance with the provisions of this\nAgreement, and to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term “Evaluation Material” means information concerning the Provider which has been or is furnished to the Recipient or its\nRepresentatives (as defined below) in connection with the Recipient’s evaluation of a Possible Transaction, including its business, financial\ncondition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies, interpretations or other documents prepared\nby the Recipient or its Representatives which contain or are based upon, in whole or in part, the information furnished by the Provider\nhereunder. The term Evaluation Material does not include information which (i) is or becomes publicly available other than as a result of a\ndisclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was within the Recipient’s possession prior to its being\nfurnished to the Recipient by or on behalf of the Provider, (iii) is or becomes available to the Recipient on a non-confidential basis from a\nsource other than the Provider or its Representatives, (iv) Recipient can reasonably show was independently developed by the Recipient or the\nRecipient’s Representatives without the use of or reference to any Evaluation Material provided by or on behalf of Provider or its\nRepresentatives or (v) is intentionally released by Provider to a third party without any restriction as to use or disclosure.\n(b) The term “Representatives” shall include the directors, officers, employees, agents, partners or advisors (including, without\nlimitation, attorneys, accountants, consultants, bankers and financial advisors) of the Recipient or Provider, as applicable.\n(c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. Each Recipient shall use the Evaluation Material solely for the purpose of evaluating a Possible Transaction\nand, subject to Section 5, will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such\ninformation may be disclosed to the Recipient’s Representatives for the purpose of helping the Recipient evaluate a Possible Transaction.\n4. Non-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other Party, such Party\nwill not, and will instruct its Representative not to, disclose to any other Person (i) that Evaluation Material has been exchanged between the Parties,\n(ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or\n(iii) any of the terms, conditions or other facts with respect thereto (including the status thereof); provided, however, that nothing contained herein\nshall be deemed to inhibit, impair or restrict the ability of Recipient or its Representatives from having discussions or negotiations with other persons\nrelating to potential financing in connection with the Possible Transaction so long as each of such Persons agrees in writing to be bound by the terms\nof this Agreement. Each Party shall be responsible for any breach of this Agreement by any of its Representatives.\n5. Legally Required Disclosure. If a Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests\nfor information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation\nMaterial or any of the facts disclosure of which is prohibited under Section 4 above, such Recipient shall, unless it is advised in good faith by its\ncounsel that it is not legally permitted to do so, provide the Provider with prompt written notice of any such request or requirement. If, in the absence\nof a protective order or other remedy or the receipt of a waiver by the Provider, a Recipient or any of its Representatives is advised in good faith by\nits counsel that it is nonetheless legally compelled to disclose Evaluation Material or any of the facts disclosure of which is prohibited under\nSection 4, such Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such\nEvaluation Material or any such facts which the Recipient or its Representatives is advised in good faith by its counsel is legally required to be\ndisclosed.\n6. Termination of Discussions. If either Party decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the\nother Party of that decision. In that case, or at any time upon the request of a Provider for any reason, a Recipient will, promptly after receipt of such\nnotice or request, destroy all Evaluation Material in any way relating to the Provider or its products, services, employees or other assets or liabilities,\nand no copy or extract thereof (including electronic copies) shall be retained. Notwithstanding the foregoing, (i) a Recipient shall not be required to\ndelete, erase or destroy any Evaluation Material contained in an archived computer backup system stored as a result of automated back-up\nprocedures, and (ii) a Recipient may retain one copy of the Evaluation Material in its Office of the General Counsel solely for record-keeping\npurposes. The Recipient shall provide to the Provider a certificate of compliance with this provision. Notwithstanding the destruction or retention of\nthe Evaluation Material, the Recipient and its Representatives will continue to be bound by such Recipient’s obligations hereunder with respect to\nsuch Evaluation Material.\n7. No Solicitation. Each Recipient agrees that, for eighteen months from the date of this Agreement, no person in its organization who receives\nor has access to the Evaluation Material or has knowledge about the Possible Transaction will, directly or indirectly, solicit, or cause the soliciting of,\nor assist or encourage others in the soliciting of, the employment or consulting services of any of the officers of a Provider or any of its subsidiaries\nor employees engaged in research and development for Provider or any of its subsidiaries or any other employee of the Provider or any if its\nsubsidiaries with whom the Recipient has had contact in connection with its evaluation of a Possible Transaction or of whom it has become aware as\na result of its receipt of any Evaluation Material, so long as they are employed by the Provider or any of its subsidiaries and for two months\nthereafter (each, a “Covered Employee”). A Recipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any\nparticular individual or the employees of the Provider or its subsidiaries generally, or (ii) engaging any recruiting firm or similar organization to\nidentify or solicit individuals for employment on behalf of such Recipient (and soliciting any person identified by any such recruiting firm or\norganization) so long as such Recipient does not identify the individuals to be solicited by such recruiting firm or organization. The provisions of this\nSection 7 shall terminate and be of no further effect with respect to the Covered Employees upon the acquisition of such Provider by a third party.\n2\n8. Standstill. Each Party agrees that, for a period of eighteen (18) months from the date of this Agreement (the “Standstill Period”), unless\nspecifically invited in writing by the other Party, neither it nor any of its majority-owned subsidiaries will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way intentionally assist any\nother Person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of any securities (or beneficial ownership thereof) or assets of the other Party or any of its subsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving the other Party or any of its subsidiaries,\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other Party\nor any of its subsidiaries, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of the other Party;\n(b) form, join or in any way participate in a “group” (as defined under the Securities Exchange Act of 1934, as amended) with respect to\nthe securities of the other Party;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without conditions), any\nextraordinary transaction involving the other Party or its securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to change or influence the control of the management, Board of Directors or\npolicies of the other Party;\n(e) take any action which might force the other Party to make a public announcement regarding any of the types of matters set forth in\n(a) above; or\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Each Party also agrees during\nsuch period not to request the other Party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any\nprovision of this paragraph (including this sentence).\nNotwithstanding anything in this Section 8 to the contrary, if, at any time during the Standstill Period, (A) an announcement is made by a\nProvider or any other person (other than the Recipient or its Representatives) that a third party (other than the Recipient or its Representatives) is or\nmay be interested in acquiring at least twenty percent (20%) of the outstanding capital stock of the Provider, voting control or a material part of the\nProvider’s assets (by way of a tender offer, exchange offer, proxy contest, acquisition or other similar transaction), or (B) a definitive agreement is\nexecuted by the Provider with a third party relating to such an acquisition of capital stock or assets, the restrictions set forth in this Section 8 shall\nimmediately terminate and cease to be of any further effect on the Recipient.\n3\nNotwithstanding any other provision of this Section 8, nothing in this Agreement shall prohibit or otherwise restrict a Recipient’s ability, either\ndirectly or through its Representative(s), to make any confidential proposal or offer, or to negotiate a confidential proposal or offer, with respect to a\nProvider to, or through, the Provider’s Board of Directors, the Chairman of the Board, the Chief Executive Officer, or any other officer of the\nProvider authorized by any of the foregoing to discuss offers or proposals (a “Permitted Proposal”), so long as the Permitted Proposal and\nnegotiations related to a Permitted Proposal are not made public by the Recipient or its Representatives in violation of this Agreement. Further, the\nParties agree that the (a) restrictions in this Agreement shall not prevent (i) any pension plan related to a Recipient or its subsidiaries from acquiring,\nor offering to acquire, securities of a Provider at any time or (ii) a Recipient’s financial advisors from engaging in ordinary course brokerage or other\ntransactions involving the securities of a Provider at any time to the extent such transactions are executed by or on behalf of customers other than\nsuch Recipient or its subsidiaries.\n9. Compliance with Securities Laws. Each Recipient agrees not to use any Evaluation Material of the Provider in violation of applicable\nsecurities laws.\n10. Not a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered by both Parties. Each\nParty also agrees that, unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Party\nwill be under any legal obligation of any kind whatsoever with respect to such Possible Transaction by virtue of this Agreement except for the\nmatters specifically agreed to herein. Neither Party is under any obligation to accept any proposal regarding a Possible Transaction, and either Party\nmay terminate discussions and negotiations with the other Party at any time.\n11. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of\nthe other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n12. Remedies. Each Party understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by\neither Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to seek equitable relief,\nincluding injunction and specific performance, as a remedy for any such breach or threat thereof. Such remedies shall not be deemed to be the\nexclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other remedies available at law or equity to the Party\nagainst which such breach is committed.\n13. Governing Law. This Agreement is for the benefit of each Party and shall be governed by and construed in accordance with the laws of\nCalifornia applicable to agreements made and to be performed entirely within such state.\n14. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n4\n15. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n16. Term. This Agreement shall terminate two years after the date hereof.\n17. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n18. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of\nthe date written below.\nRAYTHEON COMPANY\nAPPLIED SIGNAL TECHNOLOGY, INC.\nBy: /s/ Kathryn G. Simpson\nBy: /s/ William B. Van Vleet\nName: Kathryn G. Simpson\nName: William Van Vleet\nTitle: Vice President, Legal – Corporate\nTransactions and Governance\nTitle: Chief Executive Officer, President\nand Director\nDate: October 19, 2010\nDate: October 19, 2010\n5
+9f9cc24e4dd83ea52e9108d59ec937aa.pdf	effective_date jurisdiction party term	EX-10 .4 2 exh10-4 .htm NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE, AND WORKING AGREEMENT WITH\nMONNIT CORP.\nExhibit 10.4\nMonnit Corp. Logo.\nNON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE\nAND WORKING AGREEMENT\nThis Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this “Agreement”) is made and entered\ninto by Monnit Corp., a Utah Corporation (“Monnit”) and iMetrik M2M Solutions Inc., a Nevada Corporation\n(“Receiving Party”) as of February 12, 2012.\nRECITALS\nWHEREAS, Monnit possesses certain information relating to third party business opportunities (“Business Sources”) not\nknown by Receiving Party;\nWHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and\nWHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal\nobligations.\nAGREEMENT\nNOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the\nreceipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:\n1.\nBusiness Source Identification. Monnit will identify certain Business Sources not known by Receiving Party\nwhich shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business\nSource, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to\nReceiving Party. The Receiving Party shall have 2 business days to object to the amendment to Exhibit A by providing\ndocumentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If\nReceiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business\nSource, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.\n2.\nNon-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner\naccess, contact, solicit or conduct any business with a Business Source that has been made available by and through\nMonnit. The Receiving Party shall not in any way whatsoever circumvent or attempt to circumvent Monnit and\nPage1of4\nMonnit Corp. Logo.\nshall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.\n2.\nNon-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their\naffiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and\ngranted an expressed written permission of Monnit.\n3.\nBroker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties\ntogether to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be\nnegotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any\nbusiness transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted\nwithout the prior agreement of Monnit’s compensation for such business transaction(s).\n3.\nDamages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the\ncircumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it\nwould have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of\nthe recovery of such compensation.\n4.\nTerm. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the\nParties therein, with renewal to be agreed upon between the signatories.\n5.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah\napplicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict\nof laws.\n7.\nBinding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of\nindividual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their\nsuccessors and assigns.\n8.\nAssignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one\nparty without the prior written consent of the other party. Any such attempt by one party without the prior written consent\nof the other party shall be void.\n9.\nEntire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior\nproposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.\nPage2of4\nMonnit Corp. Logo.\n10. Counterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile\ncopies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.\nAccepted and Agreed: On this 13 day of February, 2012.\nMONNIT CORP.\nRECEIVING PARTY\nBy:\nBy: MICHEL ST-PIERRE\nName:\nName: Michel St-Pierre\nIs:\nIts:\nPage3of4\nMonnit Corp. Logo.\nExhibit A\nWithin 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and\ndeliver a copy of the amended Exhibit A to Receiving Party.\nBusiness Source provided by Monnit:\n_________________________________________________________________________________\n_________________________________________________________________________________\n_________________________________________________________________________________\n_________________________________________________________________________________\nPage4of4	EX-10.4 2 exh10-4.htm NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE, AND WORKING AGREEMENT WITH\nMONNIT CORP.\nExhibit 10.4\nl#.Monnit Corp. Logo.\nNON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE\nAND WORKING AGREEMENT\nThis Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this “Agreement”) is made and entered\ninto by Monnit Corp., a Utah Corporation (“Monnit”) and iMetrik M2M Solutions Inc., a Nevada Corporation\n(“Receiving Party”) as of February 12, 2012.\nRECITALS\nWHEREAS, Monnit possesses certain information relating to third party business opportunities (“Business Sources”) not\nknown by Receiving Party;\nWHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and\nWHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal\nobligations.\nAGREEMENT\nNOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the\nreceipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:\n1. Business Source Identification. Monnit will identify certain Business Sources not known by Receiving Party\nwhich shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business\nSource, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to\nReceiving Party. The Receiving Party shall have 2 business days to object to the amendment to Exhibit A by providing\ndocumentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If\nReceiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business\nSource, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.\n2. Non-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner\naccess, contact, solicit or conduct any business with a Business Source that has been made available by and through\nMonnit. The Receiving Party shall not in any way whatsoever circuamvent or attempt to circumvent Monnit and\nPage 1 of 4\n \nl#.Monnit Corp. Logo.\nshall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.\n2. Non-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their\naffiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and\ngranted an expressed written permission of Monnit.\n3. Broker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties\ntogether to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be\nnegotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any\nbusiness transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted\nwithout the prior agreement of Monnit’s compensation for such business transaction(s).\n3. Damages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the\ncircumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it\nwould have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of\nthe recovery of such compensation.\n4. Term. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the\nParties therein, with renewal to be agreed upon between the signatories.\n5. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah\napplicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict\nof laws.\n7. Binding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of\nindividual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their\nsuccessors and assigns.\n8. Assignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one\nparty without the prior written consent of the other party. Any such attempt by one party without the prior written consent\nof the other party shall be void.\n9. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior\nproposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.\nPage 2 of 4\n \nl#.Monnit Corp. Logo.\n10. Counterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile\ncopies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.\nAccepted and Agreed: On this 13 day of February, 2012.\nMONNIT CORP. RECEIVING PARTY\nBy: By: MICHEL ST-PIERRE\nName: Name: Michel St-Pierre\nIs: Its:\nPage 3 of 4\n».Monnit Corp. Logo.\nExhibit A\nWithin 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and\ndeliver a copy of the amended Exhibit A to Receiving Party.\nBusiness Source provided by Monnit:\nPage 4 of 4	EX-10.4 2 exh10-4.htm NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE, AND WORKING AGREEMENT WITH\nMONNIT CORP.\nExhibit 10.4\nMonnit Corp. Logo.\nNON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE\nAND WORKING AGREEMENT\nThis Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this "Agreement") is made and entered\ninto by Monnit Corp., a Utah Corporation ("Monnit") and iMetrik M2M Solutions Inc., a Nevada Corporation\n("Receiving Party") as of February 12, 2012.\nRECITALS\nWHEREAS, Monnit possesses certain information relating to third party business opportunities ("Business Sources") not\nknown by Receiving Party;\nWHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and\nWHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal\nobligations.\nAGREEMENT\nNOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the\nreceipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:\n1.\nBusiness Source Identification. Monnit will identify certain Business Sources not known by Receiving Party\nwhich shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business\nSource, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to\nReceiving\nParty.\nThe\nReceiving\nParty\nshall\nhave\n2\nbusiness\ndays\nto\nobject\nto\nthe\namendment\nto\nExhibit\nA\nby\nproviding\ndocumentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If\nReceiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business\nSource, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.\n2.\nNon-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner\naccess, contact, solicit or conduct any business with a Business Source that has been made available by and through\nMonnit. The Receiving Party shall not in any way whatsoever circumvent or attempt to circumvent Monnit and\nPage 1 of 4\nMonnit Corp. Logo.\nshall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.\n2.\nNon-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their\naffiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and\ngranted an expressed written permission of Monnit.\n3.\nBroker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties\ntogether to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be\nnegotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any\nbusiness transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted\nwithout the prior agreement of Monnit's compensation for such business transaction(s).\n3.\nDamages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the\ncircumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it\nwould have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of\nthe recovery of such compensation.\n4.\nTerm. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the\nParties therein, with renewal to be agreed upon between the signatories.\n5.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah\napplicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict\nof laws.\n7.\nBinding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of\nindividual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their\nsuccessors and assigns.\n8.\nAssignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one\nparty without the prior written consent of the other party. Any such attempt by one party without the prior written consent\nof the other party shall be void.\n9.\nEntire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior\nproposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.\nPage 2 of 4\nMonnit Corp. Logo.\n10.\nCounterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile\ncopies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.\nAccepted and Agreed: On this 13 day of February, 2012.\nMONNIT CORP.\nRECEIVING PARTY\nBy:\nBy: MICHEL ST-PIERRE\nName:\nName: Michel St-Pierre\nIs:\nIts:\nPage 3 of 4\nMonnit Corp. Logo.\nExhibit A\nWithin 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and\ndeliver a copy of the amended Exhibit A to Receiving Party.\nBusiness Source provided by Monnit:\nPage 4 of 4	EX-10 .4 2 exh10-4 .htm NON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE, AND WORKING AGREEMENT WITH\nMONNIT CORP.\nExhibit 10.4\nMonnit Corp. Logo.\nNON-CIRCUMVENTION, NON-DISCLOSURE, BROKERAGE\nAND WORKING AGREEMENT\nThis Non-Circumvention, Non-Disclosure, Brokerage and Working Agreement (this “Agreement”) is made and entered\ninto by Monnit Corp., a Utah Corporation (“Monnit”) and iMetrik M2M Solutions Inc., a Nevada Corporation\n(“Receiving Party”) as of February 12, 2012.\nRECITALS\nWHEREAS, Monnit possesses certain information relating to third party business opportunities (“Business Sources”) not\nknown by Receiving Party;\nWHEREAS, the Receiving Party is interested in entering into business transactions with such Business Sources; and\nWHEREAS, Monnit and Receiving Party wish to enter into this agreement to define certain parameters of their future legal\nobligations.\nAGREEMENT\nNOW, THEREFORE, in consideration of mutual promises contained herein and other good and valuable considerations the\nreceipt and sufficiency of which is hereby acknowledged, the parties hereto mutually and voluntarily agree as follows:\n1.\nBusiness Source Identification. Monnit will identify certain Business Sources not known by Receiving Party\nwhich shall be set forth on Exhibit A, attached hereto and incorporated herein. Within 10 days of identifying a Business\nSource, Monnit shall amend Exhibit A to include such Business Source and deliver a copy of the amended Exhibit A to\nReceiving Party. The Receiving Party shall have 2 business days to object to the amendment to Exhibit A by providing\ndocumentation that evidences Receiving Party's prior relationship with the Business Source added to Exhibit A. If\nReceiving Party fails to object or provide evidence documenting Receiving Party's prior relationship with the Business\nSource, the revised Exhibit A shall be deemed automatically amended and incorporated into this Agreement.\n2.\nNon-Solicitation; Non-Circumvention. Neither the Receiving Party nor any of its agents shall, in any manner\naccess, contact, solicit or conduct any business with a Business Source that has been made available by and through\nMonnit. The Receiving Party shall not in any way whatsoever circumvent or attempt to circumvent Monnit and\nPage1of4\nMonnit Corp. Logo.\nshall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by Monnit.\n2.\nNon-Disclosure. The parties shall maintain complete confidentiality regarding each other's business and/or their\naffiliates and shall only disclose information pertaining to the Business Sources as permitted by Monnit, unless agreed and\ngranted an expressed written permission of Monnit.\n3.\nBroker Relationship. The parties agree that Monnit is acting solely as a broker in bringing interested parties\ntogether to conduct business. As such, Monnit shall be entitled to compensation for such business. Compensation shall be\nnegotiated separately and through a subsequent agreement by the Receiving Party and Monnit. Both parties agree that any\nbusiness transaction(s) between the Receiving Party and those Business Sources provided by Monnit will not be conducted\nwithout the prior agreement of Monnit’s compensation for such business transaction(s).\n3.\nDamages. In the event of circumvention by any of the undersigned Parties, whether direct and/or indirect, the\ncircumvented Party shall be entitled to a legal monetary compensation equal to ten times the maximum service fees it\nwould have realized from such a transaction, plus any and all expenses, including any and all legal fees incurred in lieu of\nthe recovery of such compensation.\n4.\nTerm. This agreement is valid for five (5) years from the date of signature, for any and all transactions between the\nParties therein, with renewal to be agreed upon between the signatories.\n5.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws of the State of Utah\napplicable to contracts executed and to be performed in the State of Utah with exception of its provisions regarding conflict\nof laws.\n7.\nBinding on Successors and Assigns. This Agreement shall be binding upon the Parties hereto and in the case of\nindividual parties, their respective heirs, administrators and executors and in the case of all corporate Parties, their\nsuccessors and assigns.\n8.\nAssignment. This Agreement, and the rights and obligations hereunder, may not be transferred or assigned by one\nparty without the prior written consent of the other party. Any such attempt by one party without the prior written consent\nof the other party shall be void.\n9.\nEntire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior\nproposals, representations, negotiations and communications oral or written, with respect to the subject matter herein.\nPage2of4\nMonnit Corp. Logo.\n10. Counterparts. This agreement may be signed in one or more counterparts and the parties agree that facsimile\ncopies of this Agreement to be considered as one legal original and signatures thereon shall be legal and binding.\nAccepted and Agreed: On this 13 day of February, 2012.\nMONNIT CORP.\nRECEIVING PARTY\nBy:\nBy: MICHEL ST-PIERRE\nName:\nName: Michel St-Pierre\nIs:\nIts:\nPage3of4\nMonnit Corp. Logo.\nExhibit A\nWithin 10 days of identifying a Business Source, Monnit shall amend this Exhibit A to include such Business Source and\ndeliver a copy of the amended Exhibit A to Receiving Party.\nBusiness Source provided by Monnit:\n_________________________________________________________________________________\n_________________________________________________________________________________\n_________________________________________________________________________________\n_________________________________________________________________________________\nPage4of4
+a0ccd78c9587178ea47d960208ae4b5e.pdf	effective_date jurisdiction party	EX-10 .1 2 a17-22528 _1ex10d1.htm EX-10.1\nAttachment B\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS AGREEMENT is entered into between RICHARD A. DINKEL and EVOLVING SYSTEMS, INC. as of the Effective Date noted on\nthe signature page.\nRECITALS\nThe parties contemplate entering into a business relationship (“Purpose”) during which one party (“Disclosing Party”) may disclose to the other party (“Receiving Party”) certain confidential or proprietary information; and\nWith respect to the information exchanged between the parties, the parties agree as follows:\n1.\nDefinition of Confidential Information. “Confidential Information” means information, including, but not be limited\nto, performance, sales, financial, contractual and special marketing information, ideas, technical data, and concepts originated by the\nDisclosing Party and furnished to a Receiving Party, whether orally, in writing or any other medium, which information the\nDisclosing Party desires to protect against unrestricted disclosure or competitive use which (i) has not previously been published or\notherwise disclosed to the general public, (ii) has not previously been made available without restriction to the Receiving Party or\nothers, (iii) is marked as, indicated as, or could be reasonably construed to be confidential or proprietary.\n2.\nObligation to Maintain Confidentiality and Limitation on Use. The Receiving Party will:\na.\nhold the Confidential Information in confidence, exercising a degree of care not less than the care used by such party to\nprotect its own proprietary or confidential information that it does not wish to disclose, and in no event less than a reasonable degree\nof care;\nb.\nrestrict disclosure of the Confidential Information solely to those Representatives with a need to know and not disclose it to\nany other person;\nc.\nadvise those Representatives of their obligations with respect to the Confidential Information; and\nd.\nuse the Confidential Information only in connection with the Purpose and reproduce such Confidential Information only to\nthe extent necessary for such Purpose.\nThe term “Representatives” means the Affiliates of either party and the respective directors, officers, employees, attorneys, consultants and other agents and advisors of either party or of the Affiliates of either party. An “Affiliate”\nmeans any entity that directly or indirectly controls, is controlled by or is under common control with a party, whether such control arises through the ownership of voting stock, by contract, or otherwise. Each party will be responsible for\nany breach of this Agreement by its respective Representatives and will take all reasonably necessary measures to restrain its Representatives from unauthorized disclosure or use of Confidential Information.\n3.\nExclusions. The Receiving Party will have no obligation to preserve the confidential nature of any information which:\na.\nwas previously known to such party free of any obligation to keep it confidential; or\nb.\nis or becomes publicly available by means other than unauthorized disclosure; or\nc.\nis developed by or on behalf of such party independent of any Confidential Information furnished under this Agreement; or\nd.\nis received from a third party whose disclosure does not violate any confidentiality obligation.\n4.\nMandatory Disclosure Exemption. In the event the Receiving Party or its employees need (for securities law purposes)\nto make disclosures of Confidential Information or become legally compelled (by oral questions, interrogatories, requests for\ninformation or documents, subpoenas, civil investigative demands or otherwise) to disclose any Confidential Information of the\nDisclosing Party, the Receiving Party will provide the Disclosing Party with prompt written notice so that (a) the Disclosing Party\ncan work with the Receiving Party to limit the disclosure to the greatest extent possible consistent with legal obligations (it being\nunderstood that disclosure of the name of the other party will never be made without that party’s prior written consent) or (b) the\nDisclosing Party may seek a protective order or other appropriate remedy, or if the Disclosing Party so directs, the Receiving Party\nwill exercise its reasonable best efforts to obtain a protective order or other appropriate remedy at the Disclosing Party’s reasonable\nexpense. Failing the entry of a protective order or other appropriate remedy or receipt of a waiver hereunder, the Receiving Party will\nfurnish only that portion of the Confidential Information which it is\nadvised by its counsel is legally required to be furnished and will exercise its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential Information.\n5.\nNo Rights Granted. All Confidential Information and all tangible forms of such information received under this\nAgreement by the Receiving Party will remain the property of Disclosing Party. Nothing contained in this Agreement will be\nconstrued as (i) requiring Disclosing Party to disclose, or Receiving Party to accept, any particular information, or (ii) granting to\nReceiving Party a license, either express or implied, under any patent, copyright, trade secret, or other intellectual property rights now\nor hereafter owned, obtained or licensable by Disclosing Party. Neither this Agreement, nor the disclosure of Confidential\nInformation under this Agreement will constitute or imply any promise or any commitment by either party with respect to any other\npresent or future transaction. Each party agrees that it will not modify or create other works with the other party’s Confidential\nInformation, or reverse engineer or decompile or disassemble any software programs contained therein.\n6.\nNo Warranty. All Confidential Information is provided “As Is”, without warranty of any kind. In particular, the parties do\nnot warrant, assure or guarantee that the information disclosed constitutes a non-infringement of other third-party trademarks, patents,\ncopyrights, mask works or any other intellectual property right in the information disclosed. Receiving Party agrees that Disclosing\nParty will not have liability or responsibility for any errors or omissions in, or any business decisions made by Receiving Party in\nreliance on, any Confidential Information disclosed by Disclosing Party under this Agreement.\n7.\nRemedies. Each party agrees that the Disclosing Party would be irreparably injured by a breach of this Agreement by the\nReceiving Party or its Representatives and that the Disclosing Party will be entitled to equitable relief, including injunctive relief and\nspecific performance, in the event of any breach of the provisions of this Agreement. Such remedies will not be deemed to be the\nexclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity.\n8.\nCompliance with Export Regulations. Each Party agrees that it will not export or re-export outside the United States,\neither directly or indirectly, any Confidential Information without first obtaining the prior written approval of the Disclosing Party,\nwhich may entail obtaining clearance or licensing by a governmental authority.\n9.\nTerm. The term of this Agreement will commence on the Effective Date and will continue for the term of the Consulting\nServices Agreement entered into between the parties (the “Term”). A party’s obligations to protect Confidential Information which it\nhas received during the Term will survive for a period of three (3) years after the date of disclosure of such Confidential Information;\nprovided, however, that a party’s obligation to protect any Confidential Information which is a trade secret under applicable law will\ncontinue as long as such Confidential Information remains a trade secret under applicable law.\n10.\nGoverning Law. This Agreement will be governed by and construed under the laws of the State of Colorado. Each party\nirrevocably consents to the jurisdiction and venue of the state and federal courts located in Douglas County, Colorado.\n11.\nEntire Agreement. This Agreement constitutes the entire understanding between the parties with respect to Confidential\nInformation provided in connection with the Purpose and supersedes all prior agreements between the parties with respect to\nConfidential Information provided in connection with Purpose. No amendment or modification of this Agreement will be valid or\nbinding on the parties unless made in writing and executed on behalf of each party by its duly authorized representative. If any\nprovision of this Agreement is found to be unenforceable, the remainder will be enforced as fully as possible and the unenforceable\nprovision will be deemed to be modified to the limited extent required to permit its enforcement in a manner most closely\napproximating the intention of the parties as expressed in this Agreement.\n12.\nNotices. All notices and other communications provided for or permitted under this Agreement will be in writing, made by\nhand delivery; first class mail, postage prepaid, return receipt requested; or by reliable overnight courier addressed to a party at the\naddress indicated in this Agreement. Notices will be deemed delivered when received by the party being notified, or, if sent via first\nclass mail as above, will be deemed delivered four days after such remittance.\n13.\nAssignment. Neither this Agreement nor any of the rights and obligations created in this Agreement may be assigned, in\nwhole or in part, by either party, without the prior written consent of the other party. Any assignment contrary to the foregoing is\nvoid. This Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and\nassigns.\n14.\nAdministrative Ease. The parties agree that this Agreement may be executed in counterparts, and that such counterpart\nsignatures will be considered effective if provided by PDF or facsimile transmission.\nEach party has caused this Agreement to be executed on its behalf as of the 1st day of October, 2017 (“Effective Date”).\nRICHARD A. DINKEL\n/s/ RICHARD A. DINKEL\nEVOLVING SYSTEMS, INC .\nBy:\n/s/ JULIE GOSAL HOARAU\nJulie Gosal Hoarau\nTitle: SVP Finance	EX-10.l 2 al7-22528_lexlOdl.htm EX-10.l\nAttachment B\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS AGREEMENTIS entered into between RIC HARD A. DINKEL and EVOLVING SYSTEMS, INC. as of the Effective Date noted on\nthe signature page.\nRE C ITA L S\nThe parties contemplate entering into a business relationship ("Purpose") during which one party ("Disclosing Party”) may disclose to the other party ("Receiving Party”) certain confidential or proprietary information; and\nWith respect to the information exchanged between the parties, the parties agree as follows:\n1. Definition of C onfidential Information. ”C onfidential Information” means information, including, but not be limited\nto, performance, sales, financial, contractual and special marketing information, ideas, technical data, and concepts originated by the\nDisclosing Party and furnished to a Receiving Party, whether orally, in writing or any other medium, which information the\nDisclosing Party desires to protect against unrestricted disclosure or competitive use which (i) has not previously been published or\notherwise disclosed to the general public, (ii) has not previously been made available without restriction to the Receiving Party or\nothers, (iii) is marked as, indicated as, or could be reasonably construed to be confidential or proprietary.\n2. Obligation to Maintain Confidentiality and Limitation on Use. The Receiving Party will:\na. hold the Confidential Information in confidence, exercising a degree of care not less than the care used by such party to\nprotect its own proprietary or confidential information that it does not wish to disclose, and in no event less than a reasonable degree\nof care;\nb. restrict disclosure of the Confidential Information solely to those Representatives with a need to know and not disclose it to\nany other person;\nc. advise those Representatives of their obligations with respect to the Confidential Information; and\nd. use the Confidential Information only in connection with the Purpose and reproduce such Confidential Information only to\nthe extent necessary for such Purpose.\nThe term "Represenmtives" means the Affiliates of either party and the respective directors, officers, employees, attorneys, consultants and other agents and advisors of either party or of the Affiliates of either party. An "Affiliate"\nmeans any entity that directly or indirectly controls, is contiolled by or is under common control with a party, whether such control arises through the ownership of voting stock, by contract, or otherwise. Each party will be responsible for\nany breach of this Agreement by its respective Representatives and will take all reasonably necessary measures to restiain its Representatives from unauthorized disclosure or use of Confidential Information.\n3. Exclusions. The Receiving Party will have no obligation to preserve the confidential nature of any information which:\na. was previously known to such party free of any obligation to keep it confidential; or\nb. is or becomes publicly available by means other than unauthorized disclosure; or\nc. is developed by or on behalf of such party independent of any Confidential Information furnished under this Agreement; or\nd. is received from a third party whose disclosure does not violate any confidentiality obligation.\n4. Mandatory Disclosure Exemption. In the event the Receiving Party or its employees need (for securities law purposes)\nto make disclosures of Confidential Information or become legally compelled (by oral questions, interrogatories, requests for\ninformation or documents, subpoenas, civil investigative demands or otherwise) to disclose any Confidential Information of the\nDisclosing Party, the Receiving Party will provide the Disclosing Party with prompt written notice so that (a) the Disclosing Party\ncan work with the Receiving Party to limit the disclosure to the greatest extent possible consistent with legal obligations (it being\nunderstood that disclosure of the name of the other party will never be made without that party’ s prior written consent) or (b) the\nDisclosing Party may seek a protective order or other appropriate remedy, or if the Disclosing Party so directs, the Receiving Party\nwill exercise its reasonable best efforts to obtain a protective order or other appropriate remedy at the Disclosing Party’ s reasonable\nexpense. Failing the entry of a protective order or other appropriate remedy or receipt of a waiver hereunder, the Receiving Party will\nfurnish only that portion of the Confidential Information which it is\n \nadvised by its counsel is legally required to be furnished and will exercise its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential Information.\n5. No Rights G ranted. All Confidential Information and all tangible forms of such information received under this\nAgreement by the Receiving Party will remain the property of Disclosing Party. Nothing contained in this Agreement will be\nconstrued as (i) requiring Disclosing Party to disclose, or Receiving Party to accept, any particular information, or (ii) granting to\nReceiving Party a license, either express or implied, under any patent, copyright, trade secret, or other intellectual property rights now\nor hereafter owned, obtained or licensable by Disclosing Party. Neither this Agreement, nor the disclosure of Confidential\nInformation under this Agreement will constitute or imply any promise or any commitment by either party with respect to any other\npresent or future transaction. Each party agrees that it will not modify or create other works with the other party’ s Confidential\nInformation, or reverse engineer or decompile or disassemble any software programs contained therein.\na. No Warranty. All Confidential Information is provided ”As Is", without warranty of any kind. In particular, the parties do\nnot warrant, assure or guarantee that the information disclosed constitutes a non-infringement of other third-party trademarks, patents,\ncopyrights, mask works or any other intellectual property right in the information disclosed. Receiving Party agrees that Disclosing\nParty will not have liability or responsibility for any errors or omissions in, or any business decisions made by Receiving Party in\nreliance on, any Confidential Information disclosed by Disclosing Party under this Agreement.\n7. Remedies. Each party agrees that the Disclosing Party would be irreparably injured by a breach of this Agreement by the\nReceiving Party or its Representatives and that the Disclosing Party will be entitled to equitable relief, including injunctive relief and\nspecific performance, in the event of any breach of the provisions of this Agreement. Such remedies will not be deemed to be the\nexclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity.\n8. Compliance with Export Regulations. Each Party agrees that it will not export or reexport outside the United States,\neither directly or indirectly, any Confidential Information without first obtaining the prior written approval of the Disclosing Party,\nwhich may entail obtaining clearance or licensing by a governmental authority.\n9. Term. The term of this Agreement will commence on the Effective Date and will continue for the term of the Consulting\nServices Agreement entered into between the parties (the ”Term"). A party’ s obligations to protect Confidential Information which it\nhas received during the Term will survive for a period of three (3) years after the date of disclosure of such Confidential Information;\nprovided, however, that a party’ s obligation to protect any Confidential Information which is a trade secret under applicable law will\ncontinue as long as such Confidential Information remains a trade secret under applicable law.\n10. G overning Law. This Agreement will be governed by and construed under the laws of the State of Colorado. Each party\nirrevocably consents to the jurisdiction and venue of the state and federal courts located in Douglas County, Colorado.\n11. Entire Agreement. This A greement constitutes the entire understanding between the parties with respect to Confidential\nInformation provided in connection with the Purpose and supersedes all prior agreements between the parties with respect to\nConfidential Information provided in connection with Purpose. No amendment or modification of this Agreement will be valid or\nbinding on the parties unless made in writing and executed on behalf of each party by its duly authorized representative. If any\nprovision of this Agreement is found to be unenforceable, the remainder will be enforced as fully as possible and the unenforceable\nprovision will be deemed to be modified to the limited extent required to permit its enforcement in a manner most closely\napproximating the intention of the parties as expressed in this Agreement.\n12. Notices. All notices and other communications provided for or permitted under this Agreement will be in writing, made by\nhand delivery; first class mail, postage prepaid, return receipt requested; or by reliable overnight courier addressed to a party at the\naddress indicated in this Agreement. Notices will be deemed delivered when received by the party being notified, or, if sent via first\nclass mail as above, will be deemed delivered four days after such remittance.\n13. Assignment. Neither this Agreement nor any of the rights and obligations created in this Agreement may be assigned, in\nwhole or in part, by either party, without the prior written consent of the other party. Any assignment contrary to the foregoing is\nvoid. This Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and\nassigns.\n \n14. Administrative Ease. The parties agree that this Agreement may be executed in counterparts, and that such counterpart\nsignatures will be considered effective if provided by PDF or facsimile transmission.\nEach party has caused this Agreement to be executed on its behalf as of the lst day Of 0 CtOber, 2017 (”E ffective Date" ) .\nRICHARD A. DINKEL\n/s/ RICHARD A. DINKEL\nEVOLVING SY STEMS. INC.\nBy: /S/]ULIE GOSAL HOARAU\nI ulie (l osal Hoarau\nTitle: SVP Finance	EX-10.1 al7-22528lex10d1.htm EX-10.1\nAttachment B\nMUTUAL NONDISCLOSUR AGREEMENT\nTHIS AGREEMENT is entered into between RICHARD A. DINKEL and EVOLVING SYSTEMS, INC. as of the Effective Date noted on\nthe signature page.\nRECITALS\nThe parties contemplate entering into a business relationship ("Purpose") during which one party ("Disclosing Party") may disclose to the other party ("Receiving Party") certain confidential or proprietary information; and\nWith respect to the information exchanged between the parties, the parties agree as follows:\n1.\nDefinition of Confidential Information. "Confidential Information" means information including, but not be limited\nto, performance, sales, financial contractual and special marketing information, ideas, technical data, and concepts originated by the\nDisclosing Party and furnished to a Receiving Party, whether orally, in writing or any other medium, which information the\nDisclosing Party desires to protect against unrestricted disclosure or competitive use which (i) has not previously been published or\notherwise disclosed to the general public, (ii) has not previously been made available without restriction to the Receiving Party or\nothers, (iii) is marked as, indicated as, or could be reasonably construed to be confidential or proprietary.\n2.\nObligation to Maintain Confidentiality and Limitation on Use. The Receiving Party will:\na.\nhold the Confidential Information in confidence, exercising a degree of care not less than the care used by such party to\nprotect its own proprietary or confidential information that it does not wish to disclose, and in no event less than a reasonable degree\nof care;\nb.\nrestrict disclosure of the Confidential Information solely to those Representatives with a need to know and not disclose it to\nany other person;\nc.\nadvise those Representatives of their obligations with respect to the Confidential Information and\nd.\nuse the Confidential Information only in connection with the Purpose and reproduce such Confidential Information only to\nthe extent necessary for such Purpose.\nThe term "Representatives" means the Affiliates of either party and the respective directors, officers, employees, attorneys, consultants and other agents and advisors of either party or of the Affiliates of either party. An Affiliate"\nmeans any entity that directly or indirectly controls, is controlled by or is under common control with a party whether such control arises through the ownership of voting stock, by contract, or otherwise. Each party wil be responsible for\nany\nbreach of this Agreement by its respective Representatives and will take all reasonably necessary measures to restrain its Representatives from unauthorized disclosure or use of Confidential Information.\n3.\nExclusions. The Receiving Party will have no obligation to preserve the confidential nature of any information which:\na.\nwas previously known to such party free of any obligation to keep it confidential; or\nb.\nis or becomes publicly available by means other than unauthorized disclosure; or\nc.\nis developed by or on behalf of such party independent of any Confidential Information furnished under this A greement; or\nd.\nis received from a third party whose disclosure does not violate any confidentiality obligation.\n4.\nMandatory Disclosure Exemption. In the event the Receiving Party or its employees need (for securities law purposes)\nto make disclosures of Confidential Information or become legally compelled (by oral questions, interrogatories, requests for\ninformation or documents, subpoenas, civil investigative demands or otherwise) to disclose any Confidential Information of the\nDisclosing Party, the Receiving Party will provide the Disclosing Party with prompt written notice so that (a) the Disclosing Party\ncan work with the Receiving Party to limit the disclosure to the greatest extent possible consistent with legal obligations (it being\nunderstood that disclosure of the name of the other party will never be made without that party's prior written consent) or (b) the\nDisclosing Party may seek a protective order or other appropriate remedy, or if the Disclosing Party so directs, the Receiving Party\nwill exercise its reasonable best efforts to obtain a protective order or other appropriate remedy at the Disclosing Party's reasonable\nexpense. Failing the entry of a protective order or other appropriate remedy or receipt of a waiver hereunder, the Receiving Party will\nfurnish only that portion of the Confidential Information which it is\nadvised by its counsel is legally required to be furnished and will exercise its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential Information.\n5.\nNo Rights G ranted. All Confidential Information and all tangible forms of such information received under this\nA greement by the Receiving Party will remain the property of Disclosing Party. Nothing contained in this A greement will be\nconstrued as (i) requiring Disclosing Party to disclose, or Receiving Party to accept, any particular information, or (ii) granting to\nReceiving Party a license, either express or implied, under any patent, copyright, trade secret, or other intellectual property rights now\nor hereafter owned obtained or licensable by isclosing Party Neither this A greement, nor the disclosure of Confidentia\nInformation under this A greement will constitute or imply any promise or any commitment by either party with respect to any other\npresent or future transaction. Each party agrees that it will not modify or create other works with the other party's Confidential\nInformation, or reverse engineer or decompile or disassemble any software programs contained therein.\n6.\nNo Warranty. All Confidential Information is provided "As Is", without warranty of any kind. In particular, the parties do\nnot warrant, assure or guarantee that the information disclosed constitutes a non-infringement of other third-party trademarks, patents,\ncopyrights, mask works or any other intellectual property right in the information disclosed. Receiving Party agrees that Disclosing\nParty will not have liability or responsibility for any errors or omissions in, or any business decisions made by Receiving Party in\nreliance on, any Confidential Information disclosed by Disclosing Party under this A greement.\n7.\nRemedies. Each party agrees that the Disclosing Party would be irreparably injured by a breach of this A greement by the\nReceiving Party or its Representatives and that the Disclosing Party will be entitled to equitable relief including injunctive relief and\nspecific performance, in the event of any breach of the provisions of this greement. Such remedies will not be deemed to be the\nexclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity.\n8.\nCompliance with Export Regulations. Each Party agrees that it will not export or re-export outside the United States,\neither directly or indirectly, any Confidential Information without first obtaining the prior written approval of the Disclosing Party,\nwhich may entail obtaining clearance or licensing by a governmental authority.\n9.\nTerm. The term of this A greement will commence on the Effective Date and will continue for the term of the Consulting\nServices greement entered into between the parties (the "Term"). A party's obligations to protect Confidential Information which it\nhas received during the Term will survive for a period of three (3) years after the date of disclosure of such Confidential Information;\nprovided, however, that a party's obligation to protect any Confidential Information which is a trade secret under applicable law will\ncontinue as long as such Confidential Information remains a trade secret under applicable law.\n10.\nGoverning Law. This A greement will be governed by and construed under the laws of the State of Colorado. Each party\nirrevocably consents to the jurisdiction and venue of the state and federal courts located in Douglas County, Colorado.\n11.\nEntire Agreement. This A greement constitutes the entire understanding between the parties with respect to Confidential\nInformation provided in connection with the Purpose and supersedes all prior agreements between the parties with respect to\nConfidential Information provided in connection with Purpose. No amendment or modification of this greement will be valid or\nbinding on the parties unless made in writing and executed on behalf of each party by its duly authorized representative If any\nprovision of this A greement is found to be unenforceable, the remainder will be enforced as fully as possible and the unenforceable\nprovision will be deemed to be modified to the limited extent required to permit its enforcement in a manner most closely\napproximating the intention of the parties as expressed in this A greement\n12.\nNotices. All notices and other communications provided for or permitted under this A greement will be in writing, made by\nhand delivery; first class mail, postage prepaid, return receipt requested; or by reliable overnight courier addressed to a party at the\naddress indicated in this Agreement. Notices will be deemed delivered when received by the party being notified, or, if sent via first\nclass mail as above, will be deemed delivered four days after such remittance.\n13.\nA ssignment. Neither this A greement nor any of the rights and obligations created in this A greement may be assigned, in\nwhole or in part, by either party, without the prior written consent of the other party. Any assignment contrary to the foregoing is\nvoid. This A greement will be binding upon and inure to the benefit of the parties and their respective permitted successors and\nassigns.\n14.\nAdministrative Ease. The parties agree that this A greement may be executed in counterparts, and that such counterpart\nsignatures will be considered effective if provided by PDF or facsimile transmission.\nEach party has caused this Agreement to be executed on its behalf as of the 1st day of October, 2017 ("Effective Date").\nRICHARD A. DINKEL\nIS/ RICHARD A. DINKEL\nEVOLVING SY STEMS, INC.\nBy:\n/s/ JULIE GOSAL HOARAU\nJule Goal Hoarau\nTitle: SVP Finance	EX-10 .1 2 a17-22528 _1ex10d1.htm EX-10.1\nAttachment B\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS AGREEMENT is entered into between RICHARD A. DINKEL and EVOLVING SYSTEMS, INC. as of the Effective Date noted on\nthe signature page.\nRECITALS\nThe parties contemplate entering into a business relationship (“Purpose”) during which one party (“Disclosing Party”) may disclose to the other party (“Receiving Party”) certain confidential or proprietary information; and\nWith respect to the information exchanged between the parties, the parties agree as follows:\n1.\nDefinition of Confidential Information. “Confidential Information” means information, including, but not be limited\nto, performance, sales, financial, contractual and special marketing information, ideas, technical data, and concepts originated by the\nDisclosing Party and furnished to a Receiving Party, whether orally, in writing or any other medium, which information the\nDisclosing Party desires to protect against unrestricted disclosure or competitive use which (i) has not previously been published or\notherwise disclosed to the general public, (ii) has not previously been made available without restriction to the Receiving Party or\nothers, (iii) is marked as, indicated as, or could be reasonably construed to be confidential or proprietary.\n2.\nObligation to Maintain Confidentiality and Limitation on Use. The Receiving Party will:\na.\nhold the Confidential Information in confidence, exercising a degree of care not less than the care used by such party to\nprotect its own proprietary or confidential information that it does not wish to disclose, and in no event less than a reasonable degree\nof care;\nb.\nrestrict disclosure of the Confidential Information solely to those Representatives with a need to know and not disclose it to\nany other person;\nc.\nadvise those Representatives of their obligations with respect to the Confidential Information; and\nd.\nuse the Confidential Information only in connection with the Purpose and reproduce such Confidential Information only to\nthe extent necessary for such Purpose.\nThe term “Representatives” means the Affiliates of either party and the respective directors, officers, employees, attorneys, consultants and other agents and advisors of either party or of the Affiliates of either party. An “Affiliate”\nmeans any entity that directly or indirectly controls, is controlled by or is under common control with a party, whether such control arises through the ownership of voting stock, by contract, or otherwise. Each party will be responsible for\nany breach of this Agreement by its respective Representatives and will take all reasonably necessary measures to restrain its Representatives from unauthorized disclosure or use of Confidential Information.\n3.\nExclusions. The Receiving Party will have no obligation to preserve the confidential nature of any information which:\na.\nwas previously known to such party free of any obligation to keep it confidential; or\nb.\nis or becomes publicly available by means other than unauthorized disclosure; or\nc.\nis developed by or on behalf of such party independent of any Confidential Information furnished under this Agreement; or\nd.\nis received from a third party whose disclosure does not violate any confidentiality obligation.\n4.\nMandatory Disclosure Exemption. In the event the Receiving Party or its employees need (for securities law purposes)\nto make disclosures of Confidential Information or become legally compelled (by oral questions, interrogatories, requests for\ninformation or documents, subpoenas, civil investigative demands or otherwise) to disclose any Confidential Information of the\nDisclosing Party, the Receiving Party will provide the Disclosing Party with prompt written notice so that (a) the Disclosing Party\ncan work with the Receiving Party to limit the disclosure to the greatest extent possible consistent with legal obligations (it being\nunderstood that disclosure of the name of the other party will never be made without that party’s prior written consent) or (b) the\nDisclosing Party may seek a protective order or other appropriate remedy, or if the Disclosing Party so directs, the Receiving Party\nwill exercise its reasonable best efforts to obtain a protective order or other appropriate remedy at the Disclosing Party’s reasonable\nexpense. Failing the entry of a protective order or other appropriate remedy or receipt of a waiver hereunder, the Receiving Party will\nfurnish only that portion of the Confidential Information which it is\nadvised by its counsel is legally required to be furnished and will exercise its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential Information.\n5.\nNo Rights Granted. All Confidential Information and all tangible forms of such information received under this\nAgreement by the Receiving Party will remain the property of Disclosing Party. Nothing contained in this Agreement will be\nconstrued as (i) requiring Disclosing Party to disclose, or Receiving Party to accept, any particular information, or (ii) granting to\nReceiving Party a license, either express or implied, under any patent, copyright, trade secret, or other intellectual property rights now\nor hereafter owned, obtained or licensable by Disclosing Party. Neither this Agreement, nor the disclosure of Confidential\nInformation under this Agreement will constitute or imply any promise or any commitment by either party with respect to any other\npresent or future transaction. Each party agrees that it will not modify or create other works with the other party’s Confidential\nInformation, or reverse engineer or decompile or disassemble any software programs contained therein.\n6.\nNo Warranty. All Confidential Information is provided “As Is”, without warranty of any kind. In particular, the parties do\nnot warrant, assure or guarantee that the information disclosed constitutes a non-infringement of other third-party trademarks, patents,\ncopyrights, mask works or any other intellectual property right in the information disclosed. Receiving Party agrees that Disclosing\nParty will not have liability or responsibility for any errors or omissions in, or any business decisions made by Receiving Party in\nreliance on, any Confidential Information disclosed by Disclosing Party under this Agreement.\n7.\nRemedies. Each party agrees that the Disclosing Party would be irreparably injured by a breach of this Agreement by the\nReceiving Party or its Representatives and that the Disclosing Party will be entitled to equitable relief, including injunctive relief and\nspecific performance, in the event of any breach of the provisions of this Agreement. Such remedies will not be deemed to be the\nexclusive remedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity.\n8.\nCompliance with Export Regulations. Each Party agrees that it will not export or re-export outside the United States,\neither directly or indirectly, any Confidential Information without first obtaining the prior written approval of the Disclosing Party,\nwhich may entail obtaining clearance or licensing by a governmental authority.\n9.\nTerm. The term of this Agreement will commence on the Effective Date and will continue for the term of the Consulting\nServices Agreement entered into between the parties (the “Term”). A party’s obligations to protect Confidential Information which it\nhas received during the Term will survive for a period of three (3) years after the date of disclosure of such Confidential Information;\nprovided, however, that a party’s obligation to protect any Confidential Information which is a trade secret under applicable law will\ncontinue as long as such Confidential Information remains a trade secret under applicable law.\n10.\nGoverning Law. This Agreement will be governed by and construed under the laws of the State of Colorado. Each party\nirrevocably consents to the jurisdiction and venue of the state and federal courts located in Douglas County, Colorado.\n11.\nEntire Agreement. This Agreement constitutes the entire understanding between the parties with respect to Confidential\nInformation provided in connection with the Purpose and supersedes all prior agreements between the parties with respect to\nConfidential Information provided in connection with Purpose. No amendment or modification of this Agreement will be valid or\nbinding on the parties unless made in writing and executed on behalf of each party by its duly authorized representative. If any\nprovision of this Agreement is found to be unenforceable, the remainder will be enforced as fully as possible and the unenforceable\nprovision will be deemed to be modified to the limited extent required to permit its enforcement in a manner most closely\napproximating the intention of the parties as expressed in this Agreement.\n12.\nNotices. All notices and other communications provided for or permitted under this Agreement will be in writing, made by\nhand delivery; first class mail, postage prepaid, return receipt requested; or by reliable overnight courier addressed to a party at the\naddress indicated in this Agreement. Notices will be deemed delivered when received by the party being notified, or, if sent via first\nclass mail as above, will be deemed delivered four days after such remittance.\n13.\nAssignment. Neither this Agreement nor any of the rights and obligations created in this Agreement may be assigned, in\nwhole or in part, by either party, without the prior written consent of the other party. Any assignment contrary to the foregoing is\nvoid. This Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and\nassigns.\n14.\nAdministrative Ease. The parties agree that this Agreement may be executed in counterparts, and that such counterpart\nsignatures will be considered effective if provided by PDF or facsimile transmission.\nEach party has caused this Agreement to be executed on its behalf as of the 1st day of October, 2017 (“Effective Date”).\nRICHARD A. DINKEL\n/s/ RICHARD A. DINKEL\nEVOLVING SYSTEMS, INC .\nBy:\n/s/ JULIE GOSAL HOARAU\nJulie Gosal Hoarau\nTitle: SVP Finance
+a280f2042bdbc08700bf943438114839.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 9 a2201585zex-99 _d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nMUTUAL CONFIDENTIALITY AGREEMENT\nTHIS MUTUAL CONFIDENTIALITY AGREEMENT (“Agreement”) is entered into on the\nday of December, 2009 but with\neffect as of the 8th day of December, 2009 (the “Effective Date”), by and between MARTEK BIOSCIENCES CORPORATION\n(“MARTEK”), a Delaware, U.S .A., corporation having its principal place of business at 6480 Dobbin Road, Columbia, Maryland 21045 and\nKONINKLIJKE DSM N.V. (“COMPANY”), a Dutch corporation having its principal place of business at Het Overloon 1, 6401 JH Heerlen,\nThe Netherlands.\nWITNESSETH:\nWHEREAS, MARTEK has developed proprietary technology relating to the development, manufacture and commercialization of\n(1) infant formula ingredients, pharmaceuticals, nutritional supplements, food ingredients and other high value products derived from algae,\nfungi and other sources and (2) products and processes involving metabolic engineering and molecular genetics of organisms and MARTEK is in\nownership and possession of certain Confidential Information (as defined below) related to the foregoing which MARTEK considers proprietary,\nand\nWHEREAS, such Confidential Information is an integral part of the business activities of MARTEK, and\nWHEREAS, COMPANY and its Affiliates have developed proprietary technology, knowledge and expertise relating to the\ndevelopment, manufacture and commercialization of ingredients for the food, feed and beverage industries and is in ownership and possession of\ncertain Confidential Information (as defined below) related thereto which COMPANY considers proprietary, and\nWHEREAS, such Confidential Information is an integral part of the business activities of COMPANY, and\nWHEREAS, MARTEK and COMPANY desire to discuss certain strategic business opportunities, and\nWHEREAS, each party hereto desires to review the Confidential Information of the other for the purpose of evaluating a potential\nbusiness collaboration between the parties, and\nWHEREAS, each party hereto desires to receive from the other party covenants relating to the non-disclosure and non-use of the\nConfidential Information.\nNOW, THEREFORE, in consideration of the disclosure of Confidential Information by a party hereto (the “Disclosing Party”) to the\nother party (the “Receiving Party”), and the premises\nand mutual covenants and agreements contained herein, MARTEK and COMPANY, intending to be legally bound, hereby agree as follows:\n1.\nConfidential Information. The term “Confidential Information” shall include all confidential and proprietary information\nrelating to the respective products and operations of MARTEK and COMPANY that is marked confidential and disclosed by MARTEK or\nCOMPANY to the other party orally, by observation, in writing or photographs or through product samples or any other tangible or intangible\nform or method; provided, however, that information disclosed orally shall be Confidential Information within the meaning of this Agreement\nonly if it is reduced to writing or other tangible form and marked confidential and submitted to the Receiving Party as soon as practicable\nthereafter but, in any event, no later than thirty (30) days after such oral disclosure. Without limiting the generality of the foregoing, Confidential\nInformation shall include information with respect to MARTEK’s and COMPANY’s respective present and prospective products, processes\n(manufacturing and otherwise), plans, technology, trade secrets, systems, agreements, customers, financial conditions and projections, and sales\nand marketing methods.\nBoth parties hereto acknowledge that such Confidential Information has been and will continue to be of central importance to\neach other’s business and that disclosure of it to others or its use by others or by the Receiving Party, other than the use or disclosure of such\ninformation by the Receiving Party for the purposes set forth hereunder, could cause substantial loss to the Disclosing Party. Each of MARTEK\nand COMPANY accordingly agrees that the Confidential Information shall be kept confidential and shall only be used in accordance with the\nterms of this Agreement by such party, its Affiliates (as defined below) and their respective Representatives (as defined below) and, except as\nrequired by law or as expressly otherwise permitted by the terms hereof, will not be disclosed to any third party by such party, its Affiliates or\ntheir respective Representatives. The Receiving Party shall be responsible for ensuring compliance with the terms of this Agreement by its\nAffiliates and their respective Representatives. Nothing contained in this Agreement shall prevent the Disclosing Party from enforcing its rights,\nif any, under this Agreement against the Receiving Party, its Affiliates or their respective Representatives, either jointly or severally. The\nReceiving Party shall be permitted to disclose Confidential Information only to its Affiliates, and to the directors, officers, employees, agents,\nadvisors (including attorneys, accountants and financial advisors) and prospective lenders (“Representatives”) of the Receiving Party and its\nAffiliates, who have a need to know such Confidential Information for the purposes set forth herein and only when such Representatives have\nbeen advised of the confidential nature of the information and of the terms of this Agreement. The Receiving Party shall treat any and all such\nConfidential Information in the same manner and with the same protection as it maintains for its own confidential information.\nth\nThis obligation of confidentiality will not apply to any information to the extent that such information: (i) is known to the\nReceiving Party prior to the original disclosure of such information by the Disclosing Party to the Receiving Party, as evidenced by the Receiving\nParty’s written records or otherwise; (ii) is now or later becomes generally available to the public, such as by publication or otherwise, through\nno fault of the Receiving Party; (iii) is obtained by the Receiving Party from a third party who is not known by the Receiving Party to be\nprohibited from making such a disclosure; or (iv) is independently developed by individual employees of the Receiving Party who had no access\nto the Confidential Information of the Disclosing Party, as evidenced by the Receiving Party’s written records or otherwise. Notwithstanding\nanything to the contrary herein, the parties agree that no Confidential Information will be exchanged between the parties if such exchange would\nconstitute a violation of applicable antitrust laws or regulations; provided that any such Confidential Information may be disclosed to the\nReceiving Party’s outside legal advisors on the condition that such advisors shall not disclose such Confidential Information to the Receiving\nParty except in a form or in a manner that would not constitute a violation of applicable antitrust laws or regulations. For purposes of this\nAgreement, “Affiliate” means with respect to either party hereto, any person directly or indirectly controlling, controlled by, or under common\ncontrol with, such party. A person shall be deemed to “control” another person if such person possesses, directly or indirectly, the power to direct\nor cause the direction of the management or policies of such other person, whether through ownership of voting securities, by contract or\notherwise. The term “person” as used in this Agreement shall be construed broadly to include without limitation any corporation, company,\nlimited liability company, partnership or individual.\nThe Receiving Party agrees that all such Confidential Information disclosed to it by the Disclosing Party shall remain the\nproperty of the Disclosing Party. Any and all Confidential Information obtained by the Receiving Party shall be returned to the Disclosing Party\nor destroyed (with any such destruction certified by the Receiving Party), at the Receiving Party’s option, upon the earlier of the Disclosing\nParty’s request or the expiration of this Agreement, except that one copy of the Confidential Information may be retained by legal counsel of the\nReceiving Party and used solely for the purpose of providing legal advice on the scope of its obligations under this Agreement and in connection\nwith any dispute arising out of or under this Agreement.\nNotwithstanding anything to the contrary herein, in the event that the Receiving Party or any Representative is requested or\nrequired, by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process, to\ndisclose Confidential Information, it is agreed that the Receiving Party or such Representative will, if legally permitted, provide the Disclosing\nParty with prompt notice of such event so that the Disclosing Party may seek a protective order or other appropriate remedy or waive compliance\nwith the applicable provisions of this Agreement by the Receiving Party or such Representative. In the event and to the extent that such\nprotective order or other remedy is not obtained and disclosure of Confidential Information is required under law, or the Disclosing Party grants a\nwaiver hereunder, the Receiving Party or such Representative, as the case may be, (i) may, without liability hereunder furnish that portion (and\nonly that portion) of the Confidential Information which, in the opinion of counsel to the Receiving Party or such Representative, as the case may\nbe, the Receiving Party or such Representative is legally\nrequired to disclose and (ii) will exercise its commercially reasonable efforts to have confidential treatment accorded any Confidential\nInformation so furnished.\n2.\nProprietary Rights; Etc. This Agreement shall in no way be construed as the granting of a license by one party hereto to the\nother directly or indirectly under any patent or patent application or other form of proprietary property owned by either party hereto.\nFurthermore, nothing in this Agreement shall be interpreted so as to obligate either party to continue to evaluate mutual strategic business\nopportunities or to negotiate or enter into a further agreement with the other party to engage in any transaction.\n3.\nTerm of Agreement. All disclosures of Confidential Information shall be completed within one year of the Effective Date,\nunless either party before such date gives notice that it no longer desires to consider such mutual strategic business opportunities, but the\nobligations of Receiving Party under Paragraph 1 shall survive for a period of five years from the Effective Date.\n4.\nDelivery of Confidential Information; Notices. In the case of COMPANY, all Confidential Information shall be provided to,\nand any notices, requests, demands or other communications provided for by this Agreement shall be sufficient if in writing and if sent by\nregistered or certified mail to the attention of, Mr. Gertjan de Koning at the address of COMPANY set forth above or at such other address as\nCOMPANY has filed in writing with MARTEK. In the case of MARTEK, all Confidential Information shall be provided to, and any notices,\nrequests, demands or other communications provided for by this Agreement shall be sufficient if in writing and if sent by registered or certified\nmail to the attention of, David M. Feitel, Esq. at the address of MARTEK set forth above or at such other address as MARTEK has filed in\nwriting with COMPANY.\n5.\nSecurities Laws Compliance. Each party acknowledges and agrees that it will comply with all applicable securities laws,\nincluding without limitation, the following:\n(a)\nInsider Information. The Federal securities laws of the U.S. strictly prohibit the purchase or sale of a publicly held\nsecurity by persons who are in the possession of “material non-public information” relating to that security. Generally, “material non-public\ninformation” is information (i) which is possessed by a person by virtue of a special relationship between such person and a company whose\nsecurities are publicly-held, such as a relationship that a recipient of confidential information may have with such a company, and (ii) which\nwould be considered important by a person in considering whether to buy or sell the securities of such a company. Each party acknowledges that\ntrading in the securities of the other party, or of any publicly traded Affiliate of the other party, when in possession of “material non-public\ninformation” regarding the other party or any such Affiliate is strictly prohibited.\n(b)\nTipping. The Federal securities laws of the U.S. also prohibit a person from communicating “material non-public\ninformation” to a third party in circumstances in which it is reasonably likely that such person will use such information in dealing with the\nsecurities of a publicly held company (i.e ., “tipping”). Any person who communicates a “tip” is in violation of these rules and is subject to\nmonetary penalties and/or imprisonment. Each party acknowledges that communicating “material non-public information” regarding the other\nparty or any of its publicly traded Affiliates in such circumstances is strictly prohibited.\n(c)\nStandstill Period. Each party also agrees that for a period ending the earlier of eighteen months from the Effective\nDate and the date of a Significant Event (as defined below), neither such party nor any of its Affiliates will, without the prior written consent of\nthe other party, directly or indirectly: (1) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, any voting securities of\nthe other party or any of its Affiliates or any direct or indirect rights, options or interests with respect to any voting securities (whether by\npurchase, business combination, merger, consolidation, share exchange, joint venture or similar transaction); (2) solicit proxies or consents or\nbecome a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended\n(the “Exchange Act”)) of proxies or consents with respect to securities of the other party or its Affiliates or initiate any stockholder proposal with\nrespect to the other party or its Affiliates; (3) seek to control or influence the management, board of directors or policies of the other party or any\nof its Affiliates, or take action for the purpose of convening a stockholders meeting of the other party or any of its Affiliates; (4) make any\nproposal or any public announcement relating to a tender or exchange offer for voting securities of the other party or any of its Affiliates or\nrelating to any business combination, acquisition, merger, consolidation, share exchange, sale of substantially all assets, liquidation or similar\ntransaction involving the other party, any of its voting securities or material assets or any voting securities or material assets of any of its\nAffiliates (other than the purchase and sale of assets in the ordinary course of business between the parties and their respective Affiliates), or take\nany action that would or would reasonably be expected to require the other party or any of its Affiliates to make a public announcement\nregarding any of the foregoing; (5) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Exchange Act for the\npurpose of acquiring, holding, voting or disposing of voting securities of the other party or any of its Affiliates or taking any other actions\nrestricted or prohibited under clauses (1) through (4) of this paragraph; (6) enter into any discussions, negotiations, arrangements or\nunderstandings with any third party, with respect to any of the actions restricted or prohibited under clauses (1) through (5) of this paragraph; or\n(7) knowingly advise, assist or encourage any other person in connection with any action restricted or prohibited under clauses (1) through (5) of\nthis paragraph.\nFor purposes of this Agreement, a “Significant Event” means (i) the public announcement by the other party or any of its\nAffiliates of the entry by it into a definitive agreement providing for a business combination, merger, consolidation, share exchange, sale of more\nthan 50% of its assets, liquidation or similar transaction involving such other party or any of its Affiliates or any of their securities pursuant to\nwhich at least 50% of the outstanding shares of common stock of such party or Affiliate would be converted into cash or securities of another\nperson or 50% or more of the then outstanding shares of common stock of such party or Affiliate would be owned by persons other than the then\ncurrent holders of shares of common stock of\nsuch party or Affiliate, or which would result in more than 50% of the assets of such party and its Affiliates taken as a whole being sold to any\nperson or (ii) the commencement by an unAffiliated third party of a tender or exchange offer to acquire beneficial ownership of 50% or more of\nthe outstanding voting securities of the other party or any of its Affiliates.\n(d)\nFor the avoidance of doubt, it is understood and agreed that the obligations contained in this Section 5 are in addition\nto and are in no way in lieu of any other obligations that the parties may have under applicable securities laws and regulations. Each party\nhereby agrees to indemnify and hold harmless the other party and its Affiliates from and against any damage, loss, cost or liability (including\nreasonable legal fees and the cost of enforcing this indemnity) arising out of or resulting from any violation by such first party of any applicable\nsecurities laws or regulations.\n6.\nEntire Agreement. This Agreement constitutes the entire understanding of COMPANY and MARTEK with respect to the\nsubject matter hereof and supersedes any and all prior understandings, written or oral.\n7.\nThird Party Beneficiaries. It is understood and agreed that any breach by a party to this Agreement could have an adverse\neffect on one or more the Affiliates of the other party (in addition to the party itself). As a result, the Affiliates of each party shall be deemed to\nbe third party beneficiaries hereunder and shall have the right, as third party beneficiaries, to enforce the provisions of this Agreement against the\nother party.\n8.\nGoverning Law. This Agreement shall be governed by the substantive laws of the State of New York located in the United\nStates (excluding choice of law rules thereof that would result in the application of the laws of another jurisdiction). Each party irrevocably\nconsents to the personal jurisdiction of, and venue in, the state and federal courts within the State of New York.\n9.\nSeverability. The invalidity or unenforceability of any provisions hereof shall in no way affect the validity or enforceability of\nany other such provision. If any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so\nbroad as is enforceable.\n10.\nInjunctive Relief. Each party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential\nInformation and the standstill provisions of this Agreement, there can be no adequate remedy at law for any breach of a party’s obligations\nhereunder, that any such breach may result in irreparable harm to the other party, and therefore, that upon any such breach or threat thereof, the\nother party shall be entitled to seek injunctive relief to prevent such irreparable harm in addition to whatever remedies it might have at law or in\nequity.\n11.\nWaiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY\nAND ALL RIGHTS TO TRIAL BY JURY IN\nANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FROM ANY COUNTERCLAIM THEREIN.\n12.\nCounterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which\ntogether shall constitute one and the same instrument.\nIN WITNESS WHEREOF, each party hereto acknowledges that the representative named below has the authority to execute this\nAgreement on behalf of the respective party to form a legally binding contract and has caused this Agreement to be duly executed on its behalf.\nMARTEK BIOSCIENCES CORPORATION\nBy:\n/s/ David M. Feitel\nName: David M. Feitel\nTitle:\nExecutive VP and General Counsel\nKONINKLIJKE DSM N.V.\nBy:\n/s/ Hein Schreuder\nName: Hein Schreuder\nTitle:\nExecutive Vice President Corporate Strategy & Acquisitions\nBy:\n/s/ Stephan Tanda\nName: Stephan Tanda\nTitle:\nManaging Board Member\nAmendment No. 1\nto MUTUAL CONFIDENTIALITY AGREEMENT\nbetween\nMartek Biosciences Corporation\nand\nKoninklijke DSM N.V.\nThis Amendment No. 1 to the Mutual Confidentiality Agreement (“FIRST AMENDMENT”), is made and entered into as of December 7 2010,\nbetween Martek Biosciences Corporation, a Delaware Corporation having its principal place of business at 6480 Dobbin Road, Columbia,\nMaryland 21045 (herein referred to as “MARTEK”) and Koninklijke DSM N.V., having its principal place of business at Het Overloon 1, 6401\nJH Heerlen, The Netherlands (“COMPANY”).\nWHEREAS, MARTEK and COMPANY previously entered into a Mutual Confidentiality Agreement (“AGREEMENT”) dated\nDecember 8, 2009, and\nWHEREAS, MARTEK and COMPANY desire to amend section 3 of the AGREEMENT.\nNOW THEREFORE, in consideration of the premises and of the mutual covenants of the parties hereto, each party hereby agrees with\nthe other effective as of the date first above written, to amend the AGREEMENT as follows:\n1.\nSection 3 of the AGREEMENT, shall be replaced in its entirety with the following:\nTerm of Agreement. All disclosures of Confidential Information shall be completed within two (2) years of the Effective Date,\nunless either party before such date gives notice that it no longer desires to consider such mutual strategic business\nopportunities, but the obligations of Receiving Party under Paragraph 1 shall survive the expiration or terminate of this\nAgreement.\n2.\nThis FIRST AMENDMENT may be executed in counterparts, each of which shall be deemed an original and all of which\ntogether shall constitute one and the same FIRST AMENDMENT.\n3.\nAll other terms and conditions of the AGREEMENT not expressly modified herein shall remain in full force and effect.\nIN WITNESS WHEREOF, the parties have each caused this FIRST AMENDMENT to be signed and delivered by their duly\nauthorized representatives as of the date first written above.\nMARTEK BIOSCIENCES CORPORATION\nKONINKLIJKE DSM N.V.\nBy:\n/s/ David M. Feitel\nBy:\n/s/ Stephen Tanda\nName:\nDavid M. Feitel\nName:\nStephen Tanda\nTitle:\nEVP and General Counsel\nTitle:\nMember Managing Board\nBy:\n/s/ L.H. Staal\nName:\nL.H Staal\nTitle:\nPresident & CEO DNP	EX-99.(D)(2) 9 a2201585zex-99_d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nMUTUAL CONFIDENTIALITY AGREEMENT\nTHIS MUTUAL CONFIDENTIALITY AGREEMENT (“Agreement”) is entered into on the th day of December, 2009 but with\neffect as of the 8th day of December, 2009 (the “Effective Date”), by and between MARTEK BIOSCIENCES CORPORATION\n(“MARTEK?”), a Delaware, U.S.A., corporation having its principal place of business at 6480 Dobbin Road, Columbia, Maryland 21045 and\nKONINKLIJKE DSM N.V. (“COMPANY”), a Dutch corporation having its principal place of business at Het Overloon 1, 6401 JH Heerlen,\nThe Netherlands.\nWITNESSETH:\nWHEREAS, MARTEK has developed proprietary technology relating to the development, manufacture and commercialization of\n(1) infant formula ingredients, pharmaceuticals, nutritional supplements, food ingredients and other high value products derived from algae,\nfungi and other sources and (2) products and processes involving metabolic engineering and molecular genetics of organisms and MARTEK is in\nownership and possession of certain Confidential Information (as defined below) related to the foregoing which MARTEK considers proprietary,\nand\nWHEREAS, such Confidential Information is an integral part of the business activities of MARTEK, and\nWHEREAS, COMPANY and its Affiliates have developed proprietary technology, knowledge and expertise relating to the\ndevelopment, manufacture and commercialization of ingredients for the food, feed and beverage industries and is in ownership and possession of\ncertain Confidential Information (as defined below) related thereto which COMPANY considers proprietary, and\nWHEREAS, such Confidential Information is an integral part of the business activities of COMPANY, and\nWHEREAS, MARTEK and COMPANY desire to discuss certain strategic business opportunities, and\nWHEREAS, each party hereto desires to review the Confidential Information of the other for the purpose of evaluating a potential\nbusiness collaboration between the parties, and\nWHEREAS, each party hereto desires to receive from the other party covenants relating to the non-disclosure and non-use of the\nConfidential Information.\nNOW, THEREFORE, in consideration of the disclosure of Confidential Information by a party hereto (the “Disclosing Party”) to the\nother party (the “Receiving Party”), and the premises\n \nand mutual covenants and agreements contained herein, MARTEK and COMPANY, intending to be legally bound, hereby agree as follows:\n1. Confidential Information. The term “Confidential Information” shall include all confidential and proprietary information\nrelating to the respective products and operations of MARTEK and COMPANY that is marked confidential and disclosed by MARTEK or\nCOMPANY to the other party orally, by observation, in writing or photographs or through product samples or any other tangible or intangible\nform or method; provided, however, that information disclosed orally shall be Confidential Information within the meaning of this Agreement\nonly if it is reduced to writing or other tangible form and marked confidential and submitted to the Receiving Party as soon as practicable\nthereafter but, in any event, no later than thirty (30) days after such oral disclosure. Without limiting the generality of the foregoing, Confidential\nInformation shall include information with respect to MARTEK’s and COMPANY’s respective present and prospective products, processes\n(manufacturing and otherwise), plans, technology, trade secrets, systems, agreements, customers, financial conditions and projections, and sales\nand marketing methods.\nBoth parties hereto acknowledge that such Confidential Information has been and will continue to be of central importance to\neach other’s business and that disclosure of it to others or its use by others or by the Receiving Party, other than the use or disclosure of such\ninformation by the Receiving Party for the purposes set forth hereunder, could cause substantial loss to the Disclosing Party. Each of MARTEK\nand COMPANY accordingly agrees that the Confidential Information shall be kept confidential and shall only be used in accordance with the\nterms of this Agreement by such party, its Affiliates (as defined below) and their respective Representatives (as defined below) and, except as\nrequired by law or as expressly otherwise permitted by the terms hereof, will not be disclosed to any third party by such party, its Affiliates or\ntheir respective Representatives. The Receiving Party shall be responsible for ensuring compliance with the terms of this Agreement by its\nAffiliates and their respective Representatives. Nothing contained in this Agreement shall prevent the Disclosing Party from enforcing its rights,\nif any, under this Agreement against the Receiving Party, its Affiliates or their respective Representatives, either jointly or severally. The\nReceiving Party shall be permitted to disclose Confidential Information only to its Affiliates, and to the directors, officers, employees, agents,\nadvisors (including attorneys, accountants and financial advisors) and prospective lenders (“Representatives”) of the Receiving Party and its\nAffiliates, who have a need to know such Confidential Information for the purposes set forth herein and only when such Representatives have\nbeen advised of the confidential nature of the information and of the terms of this Agreement. The Receiving Party shall treat any and all such\nConfidential Information in the same manner and with the same protection as it maintains for its own confidential information.\nThis obligation of confidentiality will not apply to any information to the extent that such information: (i) is known to the\nReceiving Party prior to the original disclosure of such information by the Disclosing Party to the Receiving Party, as evidenced by the Receiving\n \nParty’s written records or otherwise; (ii) is now or later becomes generally available to the public, such as by publication or otherwise, through\nno fault of the Receiving Party; (iii) is obtained by the Receiving Party from a third party who is not known by the Receiving Party to be\nprohibited from making such a disclosure; or (iv) is independently developed by individual employees of the Receiving Party who had no access\nto the Confidential Information of the Disclosing Party, as evidenced by the Receiving Party’s written records or otherwise. Notwithstanding\nanything to the contrary herein, the parties agree that no Confidential Information will be exchanged between the parties if such exchange would\nconstitute a violation of applicable antitrust laws or regulations; provided that any such Confidential Information may be disclosed to the\nReceiving Party’s outside legal advisors on the condition that such advisors shall not disclose such Confidential Information to the Receiving\nParty except in a form or in a manner that would not constitute a violation of applicable antitrust laws or regulations. For purposes of this\nAgreement, “Affiliate” means with respect to either party hereto, any person directly or indirectly controlling, controlled by, or under common\ncontrol with, such party. A person shall be deemed to “control” another person if such person possesses, directly or indirectly, the power to direct\nor cause the direction of the management or policies of such other person, whether through ownership of voting securities, by contract or\notherwise. The term “person” as used in this Agreement shall be construed broadly to include without limitation any corporation, company,\nlimited liability company, partnership or individual.\nThe Receiving Party agrees that all such Confidential Information disclosed to it by the Disclosing Party shall remain the\nproperty of the Disclosing Party. Any and all Confidential Information obtained by the Receiving Party shall be returned to the Disclosing Party\nor destroyed (with any such destruction certified by the Receiving Party), at the Receiving Party’s option, upon the earlier of the Disclosing\nParty’s request or the expiration of this Agreement, except that one copy of the Confidential Information may be retained by legal counsel of the\nReceiving Party and used solely for the purpose of providing legal advice on the scope of its obligations under this Agreement and in connection\nwith any dispute arising out of or under this Agreement.\nNotwithstanding anything to the contrary herein, in the event that the Receiving Party or any Representative is requested or\nrequired, by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process, to\ndisclose Confidential Information, it is agreed that the Receiving Party or such Representative will, if legally permitted, provide the Disclosing\nParty with prompt notice of such event so that the Disclosing Party may seek a protective order or other appropriate remedy or waive compliance\nwith the applicable provisions of this Agreement by the Receiving Party or such Representative. In the event and to the extent that such\nprotective order or other remedy is not obtained and disclosure of Confidential Information is required under law, or the Disclosing Party grants a\nwaiver hereunder, the Receiving Party or such Representative, as the case may be, (i) may, without liability hereunder furnish that portion (and\nonly that portion) of the Confidential Information which, in the opinion of counsel to the Receiving Party or such Representative, as the case may\nbe, the Receiving Party or such Representative is legally\n \nrequired to disclose and (ii) will exercise its commercially reasonable efforts to have confidential treatment accorded any Confidential\nInformation so furnished.\n2. Proprietary Rights; Etc. This Agreement shall in no way be construed as the granting of a license by one party hereto to the\nother directly or indirectly under any patent or patent application or other form of proprietary property owned by either party hereto.\nFurthermore, nothing in this Agreement shall be interpreted so as to obligate either party to continue to evaluate mutual strategic business\nopportunities or to negotiate or enter into a further agreement with the other party to engage in any transaction.\n3. Term of Agreement. All disclosures of Confidential Information shall be completed within one year of the Effective Date,\nunless either party before such date gives notice that it no longer desires to consider such mutual strategic business opportunities, but the\nobligations of Receiving Party under Paragraph 1 shall survive for a period of five years from the Effective Date.\n \n4, Delivery of Confidential Information; Notices. In the case of COMPANY, all Confidential Information shall be provided to,\nand any notices, requests, demands or other communications provided for by this Agreement shall be sufficient if in writing and if sent by\nregistered or certified mail to the attention of, Mr. Gertjan de Koning at the address of COMPANY set forth above or at such other address as\nCOMPANY has filed in writing with MARTEK. In the case of MARTEK, all Confidential Information shall be provided to, and any notices,\nrequests, demands or other communications provided for by this Agreement shall be sufficient if in writing and if sent by registered or certified\nmail to the attention of, David M. Feitel, Esq. at the address of MARTEK set forth above or at such other address as MARTEK has filed in\nwriting with COMPANY.\n5. Securities Laws Compliance. Each party acknowledges and agrees that it will comply with all applicable securities laws,\nincluding without limitation, the following:\n \n(a) Insider Information. The Federal securities laws of the U.S. strictly prohibit the purchase or sale of a publicly held\nsecurity by persons who are in the possession of “material non-public information” relating to that security. Generally, “material non-public\ninformation” is information (i) which is possessed by a person by virtue of a special relationship between such person and a company whose\nsecurities are publicly-held, such as a relationship that a recipient of confidential information may have with such a company, and (ii) which\nwould be considered important by a person in considering whether to buy or sell the securities of such a company. Each party acknowledges that\ntrading in the securities of the other party, or of any publicly traded Affiliate of the other party, when in possession of “material non-public\ninformation” regarding the other party or any such Affiliate is strictly prohibited.\n(b) Tipping. The Federal securities laws of the U.S. also prohibit a person from communicating “material non-public\ninformation” to a third party in circumstances in which it is reasonably likely that such person will use such information in dealing with the\n \nsecurities of a publicly held company (i.e., “tipping”). Any person who communicates a “tip” is in violation of these rules and is subject to\nmonetary penalties and/or imprisonment. Each party acknowledges that communicating “material non-public information” regarding the other\nparty or any of its publicly traded Affiliates in such circumstances is strictly prohibited.\n(©) Standstill Period. Each party also agrees that for a period ending the earlier of eighteen months from the Effective\nDate and the date of a Significant Event (as defined below), neither such party nor any of its Affiliates will, without the prior written consent of\nthe other party, directly or indirectly: (1) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, any voting securities of\nthe other party or any of its Affiliates or any direct or indirect rights, options or interests with respect to any voting securities (whether by\npurchase, business combination, merger, consolidation, share exchange, joint venture or similar transaction); (2) solicit proxies or consents or\nbecome a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended\n(the “Exchange Act)) of proxies or consents with respect to securities of the other party or its Affiliates or initiate any stockholder proposal with\nrespect to the other party or its Affiliates; (3) seek to control or influence the management, board of directors or policies of the other party or any\nof its Affiliates, or take action for the purpose of convening a stockholders meeting of the other party or any of its Affiliates; (4) make any\nproposal or any public announcement relating to a tender or exchange offer for voting securities of the other party or any of its Affiliates or\nrelating to any business combination, acquisition, merger, consolidation, share exchange, sale of substantially all assets, liquidation or similar\ntransaction involving the other party, any of its voting securities or material assets or any voting securities or material assets of any of its\nAffiliates (other than the purchase and sale of assets in the ordinary course of business between the parties and their respective Affiliates), or take\nany action that would or would reasonably be expected to require the other party or any of its Affiliates to make a public announcement\nregarding any of the foregoing; (5) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Exchange Act for the\npurpose of acquiring, holding, voting or disposing of voting securities of the other party or any of its Affiliates or taking any other actions\nrestricted or prohibited under clauses (1) through (4) of this paragraph; (6) enter into any discussions, negotiations, arrangements or\nunderstandings with any third party, with respect to any of the actions restricted or prohibited under clauses (1) through (5) of this paragraph; or\n(7) knowingly advise, assist or encourage any other person in connection with any action restricted or prohibited under clauses (1) through (5) of\nthis paragraph.\nFor purposes of this Agreement, a “Significant Event” means (i) the public announcement by the other party or any of its\nAffiliates of the entry by it into a definitive agreement providing for a business combination, merger, consolidation, share exchange, sale of more\nthan 50% of its assets, liquidation or similar transaction involving such other party or any of its Affiliates or any of their securities pursuant to\nwhich at least 50% of the outstanding shares of common stock of such party or Affiliate would be converted into cash or securities of another\nperson or 50% or more of the then outstanding shares of common stock of such party or Affiliate would be owned by persons other than the then\ncurrent holders of shares of common stock of\n \nsuch party or Affiliate, or which would result in more than 50% of the assets of such party and its Affiliates taken as a whole being sold to any\nperson or (ii) the commencement by an unAffiliated third party of a tender or exchange offer to acquire beneficial ownership of 50% or more of\nthe outstanding voting securities of the other party or any of its Affiliates.\n(d) For the avoidance of doubt, it is understood and agreed that the obligations contained in this Section 5 are in addition\nto and are in no way in lieu of any other obligations that the parties may have under applicable securities laws and regulations. Each party\nhereby agrees to indemnify and hold harmless the other party and its Affiliates from and against any damage, loss, cost or liability (including\nreasonable legal fees and the cost of enforcing this indemnity) arising out of or resulting from any violation by such first party of any applicable\nsecurities laws or regulations.\n6. Entire Agreement. This Agreement constitutes the entire understanding of COMPANY and MARTEK with respect to the\nsubject matter hereof and supersedes any and all prior understandings, written or oral.\n \n7. Third Party Beneficiaries. It is understood and agreed that any breach by a party to this Agreement could have an adverse\neffect on one or more the Affiliates of the other party (in addition to the party itself). As a result, the Affiliates of each party shall be deemed to\nbe third party beneficiaries hereunder and shall have the right, as third party beneficiaries, to enforce the provisions of this Agreement against the\nother party.\n8. Governing Law. This Agreement shall be governed by the substantive laws of the State of New York located in the United\nStates (excluding choice of law rules thereof that would result in the application of the laws of another jurisdiction). Each party irrevocably\nconsents to the personal jurisdiction of, and venue in, the state and federal courts within the State of New York.\n9. Severability. The invalidity or unenforceability of any provisions hereof shall in no way affect the validity or enforceability of\nany other such provision. If any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so\nbroad as is enforceable.\n10. Injunctive Relief. Each party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential\nInformation and the standstill provisions of this Agreement, there can be no adequate remedy at law for any breach of a party’s obligations\nhereunder, that any such breach may result in irreparable harm to the other party, and therefore, that upon any such breach or threat thereof, the\nother party shall be entitled to seek injunctive relief to prevent such irreparable harm in addition to whatever remedies it might have at law or in\nequity.\n11. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY\nAND ALL RIGHTS TO TRIAL BY JURY IN\n \nANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FROM ANY COUNTERCLAIM THEREIN.\n12. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which\ntogether shall constitute one and the same instrument.\nIN WITNESS WHEREOQF, each party hereto acknowledges that the representative named below has the authority to execute this\nAgreement on behalf of the respective party to form a legally binding contract and has caused this Agreement to be duly executed on its behalf.\nMARTEK BIOSCIENCES CORPORATION\nBy: /s/ David M. Feitel\nName: David M. Feitel\nTitle: Executive VP and General Counsel\nKONINKLIJKE DSM N.V.\nBy: /s/ Hein Schreuder\nName: Hein Schreuder\nTitle: Executive Vice President Corporate Strategy & Acquisitions\nBy: /s/ Stephan Tanda\nName:  Stephan Tanda\nTitle: Managing Board Member\n \nAmendment No. 1\nto MUTUAL CONFIDENTIALITY AGREEMENT\nbetween\nMartek Biosciences Corporation\nand\nKoninklijke DSM N.V.\nThis Amendment No. 1 to the Mutual Confidentiality Agreement (“FIRST AMENDMENT”), is made and entered into as of December 7 2010,\nbetween Martek Biosciences Corporation, a Delaware Corporation having its principal place of business at 6480 Dobbin Road, Columbia,\nMaryland 21045 (herein referred to as “MARTEK”) and Koninklijke DSM N.V., having its principal place of business at Het Overloon 1, 6401\nJH Heerlen, The Netherlands (“COMPANY™).\nWHEREAS, MARTEK and COMPANY previously entered into a Mutual Confidentiality Agreement (“AGREEMENT”) dated\nDecember 8, 2009, and\nWHEREAS, MARTEK and COMPANY desire to amend section 3 of the AGREEMENT.\nNOW THEREFORE, in consideration of the premises and of the mutual covenants of the parties hereto, each party hereby agrees with\nthe other effective as of the date first above written, to amend the AGREEMENT as follows:\n1. Section 3 of the AGREEMENT, shall be replaced in its entirety with the following:\n \nTerm of Agreement. All disclosures of Confidential Information shall be completed within two (2) years of the Effective Date,\nunless either party before such date gives notice that it no longer desires to consider such mutual strategic business\nopportunities, but the obligations of Receiving Party under Paragraph 1 shall survive the expiration or terminate of this\nAgreement.\n2. This FIRST AMENDMENT may be executed in counterparts, each of which shall be deemed an original and all of which\ntogether shall constitute one and the same FIRST AMENDMENT.\n3. All other terms and conditions of the AGREEMENT not expressly modified herein shall remain in full force and effect.\nIN WITNESS WHEREOF, the parties have each caused this FIRST AMENDMENT to be signed and delivered by their duly\nauthorized representatives as of the date first written above.\nMARTEK BIOSCIENCES CORPORATION KONINKLIJKE DSM N.V.\nBy: /s/ David M. Feitel By: /s/ Stephen Tanda\nName:  David M. Feitel Name: Stephen Tanda\nTitle: EVP and General Counsel Title: Member Managing Board\nBy: /s/ L.H. Staal\nName: L.H Staal\nTitle: President & CEO DNP\n	EX-99.(D)(2) 9 a2201585zex-99_d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nMUTUAL CONFIDENTIALITY AGREEMENT\nTHIS MUTUAL CONFIDENTIALITY AGREEMENT ("Agreement") is entered into on the\nth day of December, 2009 but with\neffect as of the 8th day of December, 2009 (the "Effective Date"), by and between MARTEK BIOSCIENCES CORPORATION\n("MARTEK"), a Delaware, U.S.A., corporation having its principal place of business at 6480 Dobbin Road, Columbia, Maryland 21045 and\nKONINKLIJKE DSM N.V. ("COMPANY"), a Dutch corporation having its principal place of business at Het Overloon 1, 6401 JH Heerlen,\nThe Netherlands.\nWITNESSETH:\nWHEREAS, MARTEK has developed proprietary technology relating to the development, manufacture and commercialization of\n(1) infant formula ingredients, pharmaceuticals, nutritional supplements, food ingredients and other high value products derived from algae,\nfungi and other sources and (2) products and processes involving metabolic engineering and molecular genetics of organisms and MARTEK is in\nownership and possession of certain Confidential Information (as defined below) related to the foregoing which MARTEK considers proprietary,\nand\nWHEREAS, such Confidential Information is an integral part of the business activities of MARTEK, and\nWHEREAS, COMPANY and its Affiliates have developed proprietary technology, knowledge and expertise relating to the\ndevelopment, manufacture and commercialization of ingredients for the food, feed and beverage industries and is in ownership and possession of\ncertain Confidential Information (as defined below) related thereto which COMPANY considers proprietary, and\nWHEREAS, such Confidential Information is an integral part of the business activities of COMPANY, and\nWHEREAS, MARTEK and COMPANY desire to discuss certain strategic business opportunities, and\nWHEREAS, each party hereto desires to review the Confidential Information of the other for the purpose of evaluating a potential\nbusiness collaboration between the parties, and\nWHEREAS, each party hereto desires to receive from the other party covenants relating to the non-disclosure and non-use of the\nConfidential Information.\nNOW, THEREFORE, in consideration of the disclosure of Confidential Information by a party hereto (the "Disclosing Party") to the\nother party (the "Receiving Party"), and the premises\nand mutual covenants and agreements contained herein, MARTEK and COMPANY, intending to be legally bound, hereby agree as follows:\n1.\nConfidential Information. The term "Confidential Information" shall include all confidential and proprietary information\nrelating to the respective products and operations of MARTEK and COMPANY that is marked confidential and disclosed by MARTEK or\nCOMPANY\nto\nthe\nother\nparty\norally,\nby\nobservation,\nin\nwriting\nor\nphotographs\nor\nthrough\nproduct\nsamples\nor\nany\nother\ntangible\nor\nintangible\nform or method; provided, however, that information disclosed orally shall be Confidential Information within the meaning of this Agreement\nonly if it is reduced to writing or other tangible form and marked confidential and submitted to the Receiving Party as soon as practicable\nthereafter but, in any event, no later than thirty (30) days after such oral disclosure. Without limiting the generality of the foregoing, Confidentia\nInformation shall include information with respect to MARTEK'S and COMPANY'S respective present and prospective products, processes\n(manufacturing and otherwise), plans, technology, trade secrets, systems, agreements, customers, financial conditions and projections, and sales\nand marketing methods.\nBoth parties hereto acknowledge that such Confidentia Information has been and will continue to be of central importance to\neach other's business and that disclosure of it to others or its use by others or by the Receiving Party, other than the use or disclosure of such\ninformation by the Receiving Party for the purposes set forth hereunder, could cause substantial loss to the Disclosing Party. Each of MARTEK\nand COMPANY accordingly agrees that the Confidential Information shall be kept confidential and shall only be used in accordance with the\nterms of this Agreement by such party, its Affiliates (as defined below) and their respective Representatives (as defined below) and, except as\nrequired by law or as expressly otherwise permitted by the terms hereof, will not be disclosed to any third party by such party, its Affiliates or\ntheir respective Representatives. The Receiving Party shall be responsible for ensuring compliance with the terms of this Agreement by its\nAffiliates and their respective Representatives. Nothing contained in this Agreement shall prevent the Disclosing Party from enforcing its rights,\nif any, under this Agreement against the Receiving Party, its Affiliates or their respective Representatives, either jointly or severally. The\nReceiving Party shall be permitted to disclose Confidentia Information only to its Affiliates, and to the directors, officers, employees, agents,\nadvisors (including attorneys, accountants and financial advisors) and prospective lenders ("Representatives") of the Receiving Party and its\nAffiliates, who have a need to know such Confidentia Information for the purposes set forth herein and only when such Representatives have\nbeen\nadvised\nof\nthe\nconfidential\nnature\nof\nthe\ninformation\nand\nof\nthe\nterms\nof\nthis\nAgreement.\nThe\nReceiving\nParty\nshall\ntreat\nany\nand\nall\nsuch\nConfidential Information in the same manner and with the same protection as it maintains for its own confidential information.\nThis obligation of confidentiality will not apply to any information to the extent that such information: (i) is known to the\nReceiving Party prior to the original disclosure of such information by the Disclosing Party to the Receiving Party, as evidenced by the Receiving\nParty's written records or otherwise; (ii) is now or later becomes generally available to the public, such as by publication or otherwise, through\nno fault of the Receiving Party; (iii) is obtained by the Receiving Party from a third party who is not known by the Receiving Party to\nbe\nprohibited\nfrom\nmaking\nsuch\na\ndisclosure;\nor\n(iv)\nis\nindependently\ndeveloped\nby\nindividual\nemployees\nof\nthe\nReceiving\nParty\nwho\nhad\nno\naccess\nto the Confidential Information of the Disclosing Party, as evidenced by the Receiving Party's written records or otherwise. Notwithstanding\nanything to the contrary herein, the parties agree that no Confidential Information will be exchanged between the parties if such exchange would\nconstitute a violation of applicable antitrust laws or regulations; provided that any such Confidentia Information may be disclosed to the\nReceiving Party's outside legal advisors on the condition that such advisors shall not disclose such Confidential Information to the Receiving\nParty except in a form or in a manner that would not constitute a violation of applicable antitrust laws or regulations. For purposes of this\nAgreement, "Affiliate" means with respect to either party hereto, any person directly or indirectly controlling, controlled by, or under common\ncontrol with, such party. A person shall be deemed to "control" another person if such person possesses, directly or indirectly, the power to direct\nor cause the direction of the management or policies of such other person, whether through ownership of voting securities, by contract or\notherwise. The term "person" as used in this Agreement shall be construed broadly to include without limitation any corporation, company,\nlimited liability company, partnership or individual.\nThe Receiving Party agrees that all such Confidentia Information disclosed to it by the Disclosing Party shall remain the\nproperty of the Disclosing Party. Any and all Confidential Information obtained by the Receiving Party shall be returned to the Disclosing Party\nor destroyed (with any such destruction certified by the Receiving Party), at the Receiving Party's option, upon the earlier of the Disclosing\nParty's request or the expiration of this Agreement, except that one copy of the Confidential Information may be retained by legal counsel of\nthe\nReceiving Party and used solely for the purpose of providing legal advice on the scope of its obligations under this Agreement and in connection\nwith any dispute arising out of or under this Agreement.\nNotwithstanding anything to the contrary herein, in the event that the Receiving Party or any Representative is requested or\nrequired, by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process, to\ndisclose Confidential Information, it is agreed that the Receiving Party or such Representative will, if legally permitted, provide the Disclosing\nParty with prompt notice of such event so that the Disclosing Party may seek a protective order or other appropriate remedy or waive compliance\nwith the applicable provisions of this Agreement by the Receiving Party or such Representative. In the event and to the extent that such\nprotective order or other remedy is not obtained and disclosure of Confidential Information is required under law, or the Disclosing Party grants a\nwaiver hereunder, the Receiving Party or such Representative, as the case may be, (i) may, without liability hereunder furnish that portion (and\nonly that portion) of the Confidential Information which, in the opinion of counsel to the Receiving Party or such Representative, as the case may\nbe, the Receiving Party or such Representative is legally\nrequired to disclose and (ii) will exercise its commercially reasonable efforts to have confidential treatment accorded any Confidential\nInformation so furnished.\n2.\nProprietary Rights; Etc. This Agreement shall in no way be construed as the granting of a license by one party hereto to\nthe\nother directly or indirectly under any patent or patent application or other form of proprietary property owned by either party hereto.\nFurthermore, nothing in this Agreement shall be interpreted so as to obligate either party to continue to evaluate mutual strategic business\nopportunities or to negotiate or enter into a further agreement with the other party to engage in any transaction.\n3.\nTerm of Agreement. All disclosures of Confidential Information shall be completed within one year of the Effective Date,\nunless either party before such date gives notice that it no longer desires to consider such mutual strategic business opportunities, but the\nobligations of Receiving Party under Paragraph 1 shall survive for a period of five years from the Effective Date.\n4.\nDelivery of Confidential Information; Notices. In the case of COMPANY, all Confidential Information shall be provided to,\nand any notices, requests, demands or other communications provided for by this Agreement shall be sufficient if in writing and if sent by\nregistered or certified mail to the attention of, Mr. Gertjan de Koning at the address of COMPANY set forth above or at such other address as\nCOMPANY has filed in writing with MARTEK. In the case of MARTEK, all Confidential Information shall be provided to, and any notices,\nrequests, demands or other communications provided for by this Agreement shall be sufficient if in writing and if sent by registered or certified\nmail to the attention of, David M. Feitel, Esq. at the address of MARTEK set forth above or at such other address as MARTEK has filed in\nwriting with COMPANY.\n5.\nSecurities Laws Compliance. Each party acknowledges and agrees that it will comply with all applicable securities laws,\nincluding without limitation, the following:\n(a)\nInsider Information. The Federal securities laws of the U.S. strictly prohibit the purchase or sale of a publicly held\nsecurity by persons who are in the possession of "'material non-public information" relating to that security. Generally, "material non-public\ninformation" is information (i) which is possessed by a person by virtue of a special relationship between such person and a company whose\nsecurities are publicly-held, such as a relationship that a recipient of confidential information may have with such a company, and (ii) which\nwould be considered important by a person in considering whether to buy or sell the securities of such a company. Each party acknowledges\nthat\ntrading in the securities of the other party, or of any publicly traded Affiliate of the other party, when in possession of "material non-public\ninformation" regarding the other party or any such Affiliate is strictly prohibited.\n(b)\nTipping. The Federal securities laws of the U.S. also prohibit a person from communicating "material non-public\ninformation" to a third party in circumstances in which it is reasonably likely that such person will use such information in dealing with the\nsecurities of a publicly held company (i.e., "tipping"). Any person who communicates a "tip" is in violation of these rules and is subject to\nmonetary penalties and/or imprisonment. Each party acknowledges that communicating "material non-public information" regarding the other\nparty or any of its publicly traded Affiliates in such circumstances is strictly prohibited.\n(c)\nStandstill Period. Each party also agrees that for a period ending the earlier of eighteen months from the Effective\nDate and the date of a Significant Event (as defined below), neither such party nor any of its Affiliates will, without the prior written consent of\nthe other party, directly or indirectly: (1) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, any voting securities of\nthe other party or any of its Affiliates or any direct or indirect rights, options or interests with respect to any voting securities (whether by\npurchase, business combination, merger, consolidation, share exchange, joint venture or similar transaction); (2) solicit proxies or consents or\nbecome a "participant" in a "solicitation" (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended\n(the "Exchange Act")) of proxies or consents with respect to securities of the other party or its Affiliates or initiate any stockholder proposal with\nrespect to the other party or its Affiliates; (3) seek to control or influence the management, board of directors or policies of the other party or\nany\nof its Affiliates, or take action for the purpose of convening a stockholders meeting of the other party or any of its Affiliates; (4) make any\nproposal or any public announcement relating to a tender or exchange offer for voting securities of the other party or any of its Affiliates or\nrelating to any business combination, acquisition, merger, consolidation, share exchange, sale of substantially all assets, liquidation or similar\ntransaction involving the other party, any of its voting securities or material assets or any voting securities or material assets of any of its\nAffiliates (other than the purchase and sale of assets in the ordinary course of business between the parties and their respective Affiliates), or take\nany action that would or would reasonably be expected to require the other party or any of its Affiliates to make a public announcement\nregarding any of the foregoing; (5) form, join or in any way participate in a "group" as defined in Section 13(d)(3) of the Exchange Act for the\npurpose of acquiring, holding, voting or disposing of voting securities of the other party or any of its Affiliates or taking any other actions\nrestricted or prohibited under clauses (1) through (4) of this paragraph; (6) enter into any discussions, negotiations, arrangements or\nunderstandings with any third party, with respect to any of the actions restricted or prohibited under clauses (1) through (5) of this paragraph;\nor\n(7) knowingly advise, assist or encourage any other person in connection with any action restricted or prohibited under clauses (1) through (5) of\nthis paragraph.\nFor purposes of this Agreement, a "Significant Event" means (i) the public announcement by the other party or any of its\nAffiliates of the entry by it into a definitive agreement providing for a business combination, merger, consolidation, share exchange, sale of more\nthan 50% of its assets, liquidation or similar transaction involving such other party or any of its Affiliates or any of their securities pursuant\nto\nwhich\nat\nleast\n50%\nof\nthe\noutstanding\nshares\nof\ncommon\nstock\nof\nsuch\nparty\nor\nAffiliate\nwould\nbe\nconverted\ninto\ncash\nor\nsecurities\nof\nanother\nperson or 50% or more of the then outstanding shares of common stock of such party or Affiliate would be owned by persons other than the then\ncurrent holders of shares of common stock of\nsuch party or Affiliate, or which would result in more than 50% of the assets of such party and its Affiliates taken as a whole being sold to any\nperson\nor\n(ii)\nthe\ncommencement\nby\nan\nnAffiliated\nthird\nparty\nof\na\ntender\nor\nexchange\noffer\nto\nacquire\nbeneficial\nownership\nof\n50%\nor\nmore\nof\nthe outstanding voting securities of the other party or any of its Affiliates.\n(d)\nFor the avoidance of doubt, it is understood and agreed that the obligations contained in this Section 5 are in addition\nto and are in no way in lieu of any other obligations that the parties may have under applicable securities laws and regulations. Each party\nhereby agrees to indemnify and hold harmless the other party and its Affiliates from and against any damage, loss, cost or liability (including\nreasonable legal fees and the cost of enforcing this indemnity) arising out of or resulting from any violation by such first party of any applicable\nsecurities laws or regulations.\n6.\nEntire Agreement. This Agreement constitutes the entire understanding of COMPANY and MARTEK with respect to the\nsubject matter hereof and supersedes any and all prior understandings, written or oral.\n7.\nThird\nParty\nBeneficiaries.\nIt\nis\nunderstood\nand\nagreed\nthat\nany\nbreach\nby\na\nparty\nto\nthis\nAgreement\ncould\nhave\nan\nadverse\neffect on one or more the Affiliates of the other party (in addition to the party itself). As a result, the Affiliates of each party shall be deemed to\nbe third party beneficiaries hereunder and shall have the right, as third party beneficiaries, to enforce the provisions of this Agreement against the\nother party.\n8.\nGoverning Law. This Agreement shall be governed by the substantive laws of the State of New York located in the United\nStates (excluding choice of law rules thereof that would result in the application of the laws of another jurisdiction). Each party irrevocably\nconsents to the personal jurisdiction of, and venue in, the state and federal courts within the State of New York.\n9.\nSeverability.. The invalidity or unenforceability of any provisions hereof shall in no way affect the validity or enforceability of\nany other such provision. If any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so\nbroad as is enforceable.\n10. Injunctive Relief. Each party acknowledges and agrees that due to the unique nature of the Disclosing Party's Confidential\nInformation and the standstill provisions of this Agreement, there can be no adequate remedy at law for any breach of a party's obligations\nhereunder, that any such breach may result in irreparable harm to the other party, and therefore, that upon any such breach or threat thereof, the\nother party shall be entitled to seek injunctive relief to prevent such irreparable harm in addition to whatever remedies it might have at law or in\nequity.\n11.\nWaiver of Jury. Trial. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY\nAND ALL RIGHTS TO TRIAL BY JURY IN\nANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FROM ANY COUNTERCLAIM THEREIN.\n12.\nCounterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which\ntogether shall constitute one and the same instrument.\nIN WITNESS WHEREOF, each party hereto acknowledges that the representative named below has the authority to execute this\nAgreement on behalf of the respective party to form a legally binding contract and has caused this Agreement to be duly executed on its behalf.\nMARTEK BIOSCIENCES CORPORATION\nBy:\n/s/ David M. Feitel\nName: David M. Feitel\nTitle:\nExecutive VP and General Counsel\nKONINKLIJKE DSM N.V.\nBy:\n/s/ Hein Schreuder\nName:\nHein Schreuder\nTitle:\nExecutive Vice President Corporate Strategy & Acquisitions\nBy:\n/s/ Stephan Tanda\nName: Stephan Tanda\nTitle:\nManaging Board Member\nAmendment No. 1\nto MUTUAL CONFIDENTIALITY AGREEMENT\nbetween\nMartek Biosciences Corporation\nand\nKoninklijke DSM N.V.\nThis Amendment No. 1 to the Mutual Confidentiality Agreement ("FIRST AMENDMENT"), is made and entered into as of December 7 2010,\nbetween Martek Biosciences Corporation, a Delaware Corporation having its principal place of business at 6480 Dobbin Road, Columbia,\nMaryland 21045 (herein referred to as "MARTEK") and Koninklijke DSM N.V., having its principal place of business at Het Overloon 1, 6401\nJH Heerlen, The Netherlands ("COMPANY").\nWHEREAS, MARTEK and COMPANY previously entered into a Mutual Confidentiality Agreement ("AGREEMENT") dated\nDecember 8, 2009, and\nWHEREAS, MARTEK and COMPANY desire to amend section 3 of the AGREEMENT.\nNOW THEREFORE, in consideration of the premises and of the mutual covenants of the parties hereto, each party hereby agrees with\nthe other effective as of the date first above written, to amend the AGREEMENT as follows:\n1.\nSection 3 of the AGREEMENT, shall be replaced in its entirety with the following:\nTerm of Agreement. All disclosures of Confidential Information shall be completed within two (2) years of the Effective Date,\nunless either party before such date gives notice that it no longer desires to consider such mutual strategic business\nopportunities, but the obligations of Receiving Party under Paragraph 1 shall survive the expiration or terminate of this\nAgreement.\n2.\nThis FIRST AMENDMENT may be executed in counterparts, each of which shall be deemed an original and all of which\ntogether shall constitute one and the same FIRST AMENDMENT.\n3.\nAll other terms and conditions of the AGREEMENT not expressly modified herein shall remain in full force and effect.\nIN WITNESS WHEREOF, the parties have each caused this FIRST AMENDMENT to be signed and delivered by their duly\nauthorized representatives as of the date first written above.\nMARTEK BIOSCIENCES CORPORATION\nKONINKLIJKE DSM N.V.\nBy:\n/s/ David M. Feitel\nBy:\n/s/ Stephen Tanda\nName:\nDavid M. Feitel\nName:\nStephen Tanda\nTitle:\nEVP and General Counsel\nTitle:\nMember Managing Board\nBy:\n/s/ L.H. Staal\nName:\nL.H Staal\nTitle:\nPresident & CEO DNP	EX-99.(D)(2) 9 a2201585zex-99 _d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nMUTUAL CONFIDENTIALITY AGREEMENT\nTHIS MUTUAL CONFIDENTIALITY AGREEMENT (“Agreement”) is entered into on the\nday of December, 2009 but with\neffect as of the 8th day of December, 2009 (the “Effective Date”), by and between MARTEK BIOSCIENCES CORPORATION\n(“MARTEK”), a Delaware, U.S .A., corporation having its principal place of business at 6480 Dobbin Road, Columbia, Maryland 21045 and\nKONINKLIJKE DSM N.V. (“COMPANY”), a Dutch corporation having its principal place of business at Het Overloon 1, 6401 JH Heerlen,\nThe Netherlands.\nWITNESSETH:\nWHEREAS, MARTEK has developed proprietary technology relating to the development, manufacture and commercialization of\n(1) infant formula ingredients, pharmaceuticals, nutritional supplements, food ingredients and other high value products derived from algae,\nfungi and other sources and (2) products and processes involving metabolic engineering and molecular genetics of organisms and MARTEK is in\nownership and possession of certain Confidential Information (as defined below) related to the foregoing which MARTEK considers proprietary,\nand\nWHEREAS, such Confidential Information is an integral part of the business activities of MARTEK, and\nWHEREAS, COMPANY and its Affiliates have developed proprietary technology, knowledge and expertise relating to the\ndevelopment, manufacture and commercialization of ingredients for the food, feed and beverage industries and is in ownership and possession of\ncertain Confidential Information (as defined below) related thereto which COMPANY considers proprietary, and\nWHEREAS, such Confidential Information is an integral part of the business activities of COMPANY, and\nWHEREAS, MARTEK and COMPANY desire to discuss certain strategic business opportunities, and\nWHEREAS, each party hereto desires to review the Confidential Information of the other for the purpose of evaluating a potential\nbusiness collaboration between the parties, and\nWHEREAS, each party hereto desires to receive from the other party covenants relating to the non-disclosure and non-use of the\nConfidential Information.\nNOW, THEREFORE, in consideration of the disclosure of Confidential Information by a party hereto (the “Disclosing Party”) to the\nother party (the “Receiving Party”), and the premises\nand mutual covenants and agreements contained herein, MARTEK and COMPANY, intending to be legally bound, hereby agree as follows:\n1.\nConfidential Information. The term “Confidential Information” shall include all confidential and proprietary information\nrelating to the respective products and operations of MARTEK and COMPANY that is marked confidential and disclosed by MARTEK or\nCOMPANY to the other party orally, by observation, in writing or photographs or through product samples or any other tangible or intangible\nform or method; provided, however, that information disclosed orally shall be Confidential Information within the meaning of this Agreement\nonly if it is reduced to writing or other tangible form and marked confidential and submitted to the Receiving Party as soon as practicable\nthereafter but, in any event, no later than thirty (30) days after such oral disclosure. Without limiting the generality of the foregoing, Confidential\nInformation shall include information with respect to MARTEK’s and COMPANY’s respective present and prospective products, processes\n(manufacturing and otherwise), plans, technology, trade secrets, systems, agreements, customers, financial conditions and projections, and sales\nand marketing methods.\nBoth parties hereto acknowledge that such Confidential Information has been and will continue to be of central importance to\neach other’s business and that disclosure of it to others or its use by others or by the Receiving Party, other than the use or disclosure of such\ninformation by the Receiving Party for the purposes set forth hereunder, could cause substantial loss to the Disclosing Party. Each of MARTEK\nand COMPANY accordingly agrees that the Confidential Information shall be kept confidential and shall only be used in accordance with the\nterms of this Agreement by such party, its Affiliates (as defined below) and their respective Representatives (as defined below) and, except as\nrequired by law or as expressly otherwise permitted by the terms hereof, will not be disclosed to any third party by such party, its Affiliates or\ntheir respective Representatives. The Receiving Party shall be responsible for ensuring compliance with the terms of this Agreement by its\nAffiliates and their respective Representatives. Nothing contained in this Agreement shall prevent the Disclosing Party from enforcing its rights,\nif any, under this Agreement against the Receiving Party, its Affiliates or their respective Representatives, either jointly or severally. The\nReceiving Party shall be permitted to disclose Confidential Information only to its Affiliates, and to the directors, officers, employees, agents,\nadvisors (including attorneys, accountants and financial advisors) and prospective lenders (“Representatives”) of the Receiving Party and its\nAffiliates, who have a need to know such Confidential Information for the purposes set forth herein and only when such Representatives have\nbeen advised of the confidential nature of the information and of the terms of this Agreement. The Receiving Party shall treat any and all such\nConfidential Information in the same manner and with the same protection as it maintains for its own confidential information.\nth\nThis obligation of confidentiality will not apply to any information to the extent that such information: (i) is known to the\nReceiving Party prior to the original disclosure of such information by the Disclosing Party to the Receiving Party, as evidenced by the Receiving\nParty’s written records or otherwise; (ii) is now or later becomes generally available to the public, such as by publication or otherwise, through\nno fault of the Receiving Party; (iii) is obtained by the Receiving Party from a third party who is not known by the Receiving Party to be\nprohibited from making such a disclosure; or (iv) is independently developed by individual employees of the Receiving Party who had no access\nto the Confidential Information of the Disclosing Party, as evidenced by the Receiving Party’s written records or otherwise. Notwithstanding\nanything to the contrary herein, the parties agree that no Confidential Information will be exchanged between the parties if such exchange would\nconstitute a violation of applicable antitrust laws or regulations; provided that any such Confidential Information may be disclosed to the\nReceiving Party’s outside legal advisors on the condition that such advisors shall not disclose such Confidential Information to the Receiving\nParty except in a form or in a manner that would not constitute a violation of applicable antitrust laws or regulations. For purposes of this\nAgreement, “Affiliate” means with respect to either party hereto, any person directly or indirectly controlling, controlled by, or under common\ncontrol with, such party. A person shall be deemed to “control” another person if such person possesses, directly or indirectly, the power to direct\nor cause the direction of the management or policies of such other person, whether through ownership of voting securities, by contract or\notherwise. The term “person” as used in this Agreement shall be construed broadly to include without limitation any corporation, company,\nlimited liability company, partnership or individual.\nThe Receiving Party agrees that all such Confidential Information disclosed to it by the Disclosing Party shall remain the\nproperty of the Disclosing Party. Any and all Confidential Information obtained by the Receiving Party shall be returned to the Disclosing Party\nor destroyed (with any such destruction certified by the Receiving Party), at the Receiving Party’s option, upon the earlier of the Disclosing\nParty’s request or the expiration of this Agreement, except that one copy of the Confidential Information may be retained by legal counsel of the\nReceiving Party and used solely for the purpose of providing legal advice on the scope of its obligations under this Agreement and in connection\nwith any dispute arising out of or under this Agreement.\nNotwithstanding anything to the contrary herein, in the event that the Receiving Party or any Representative is requested or\nrequired, by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process, to\ndisclose Confidential Information, it is agreed that the Receiving Party or such Representative will, if legally permitted, provide the Disclosing\nParty with prompt notice of such event so that the Disclosing Party may seek a protective order or other appropriate remedy or waive compliance\nwith the applicable provisions of this Agreement by the Receiving Party or such Representative. In the event and to the extent that such\nprotective order or other remedy is not obtained and disclosure of Confidential Information is required under law, or the Disclosing Party grants a\nwaiver hereunder, the Receiving Party or such Representative, as the case may be, (i) may, without liability hereunder furnish that portion (and\nonly that portion) of the Confidential Information which, in the opinion of counsel to the Receiving Party or such Representative, as the case may\nbe, the Receiving Party or such Representative is legally\nrequired to disclose and (ii) will exercise its commercially reasonable efforts to have confidential treatment accorded any Confidential\nInformation so furnished.\n2.\nProprietary Rights; Etc. This Agreement shall in no way be construed as the granting of a license by one party hereto to the\nother directly or indirectly under any patent or patent application or other form of proprietary property owned by either party hereto.\nFurthermore, nothing in this Agreement shall be interpreted so as to obligate either party to continue to evaluate mutual strategic business\nopportunities or to negotiate or enter into a further agreement with the other party to engage in any transaction.\n3.\nTerm of Agreement. All disclosures of Confidential Information shall be completed within one year of the Effective Date,\nunless either party before such date gives notice that it no longer desires to consider such mutual strategic business opportunities, but the\nobligations of Receiving Party under Paragraph 1 shall survive for a period of five years from the Effective Date.\n4.\nDelivery of Confidential Information; Notices. In the case of COMPANY, all Confidential Information shall be provided to,\nand any notices, requests, demands or other communications provided for by this Agreement shall be sufficient if in writing and if sent by\nregistered or certified mail to the attention of, Mr. Gertjan de Koning at the address of COMPANY set forth above or at such other address as\nCOMPANY has filed in writing with MARTEK. In the case of MARTEK, all Confidential Information shall be provided to, and any notices,\nrequests, demands or other communications provided for by this Agreement shall be sufficient if in writing and if sent by registered or certified\nmail to the attention of, David M. Feitel, Esq. at the address of MARTEK set forth above or at such other address as MARTEK has filed in\nwriting with COMPANY.\n5.\nSecurities Laws Compliance. Each party acknowledges and agrees that it will comply with all applicable securities laws,\nincluding without limitation, the following:\n(a)\nInsider Information. The Federal securities laws of the U.S. strictly prohibit the purchase or sale of a publicly held\nsecurity by persons who are in the possession of “material non-public information” relating to that security. Generally, “material non-public\ninformation” is information (i) which is possessed by a person by virtue of a special relationship between such person and a company whose\nsecurities are publicly-held, such as a relationship that a recipient of confidential information may have with such a company, and (ii) which\nwould be considered important by a person in considering whether to buy or sell the securities of such a company. Each party acknowledges that\ntrading in the securities of the other party, or of any publicly traded Affiliate of the other party, when in possession of “material non-public\ninformation” regarding the other party or any such Affiliate is strictly prohibited.\n(b)\nTipping. The Federal securities laws of the U.S. also prohibit a person from communicating “material non-public\ninformation” to a third party in circumstances in which it is reasonably likely that such person will use such information in dealing with the\nsecurities of a publicly held company (i.e ., “tipping”). Any person who communicates a “tip” is in violation of these rules and is subject to\nmonetary penalties and/or imprisonment. Each party acknowledges that communicating “material non-public information” regarding the other\nparty or any of its publicly traded Affiliates in such circumstances is strictly prohibited.\n(c)\nStandstill Period. Each party also agrees that for a period ending the earlier of eighteen months from the Effective\nDate and the date of a Significant Event (as defined below), neither such party nor any of its Affiliates will, without the prior written consent of\nthe other party, directly or indirectly: (1) acquire, offer or propose to acquire, or agree to acquire, directly or indirectly, any voting securities of\nthe other party or any of its Affiliates or any direct or indirect rights, options or interests with respect to any voting securities (whether by\npurchase, business combination, merger, consolidation, share exchange, joint venture or similar transaction); (2) solicit proxies or consents or\nbecome a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Securities Exchange Act of 1934, as amended\n(the “Exchange Act”)) of proxies or consents with respect to securities of the other party or its Affiliates or initiate any stockholder proposal with\nrespect to the other party or its Affiliates; (3) seek to control or influence the management, board of directors or policies of the other party or any\nof its Affiliates, or take action for the purpose of convening a stockholders meeting of the other party or any of its Affiliates; (4) make any\nproposal or any public announcement relating to a tender or exchange offer for voting securities of the other party or any of its Affiliates or\nrelating to any business combination, acquisition, merger, consolidation, share exchange, sale of substantially all assets, liquidation or similar\ntransaction involving the other party, any of its voting securities or material assets or any voting securities or material assets of any of its\nAffiliates (other than the purchase and sale of assets in the ordinary course of business between the parties and their respective Affiliates), or take\nany action that would or would reasonably be expected to require the other party or any of its Affiliates to make a public announcement\nregarding any of the foregoing; (5) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Exchange Act for the\npurpose of acquiring, holding, voting or disposing of voting securities of the other party or any of its Affiliates or taking any other actions\nrestricted or prohibited under clauses (1) through (4) of this paragraph; (6) enter into any discussions, negotiations, arrangements or\nunderstandings with any third party, with respect to any of the actions restricted or prohibited under clauses (1) through (5) of this paragraph; or\n(7) knowingly advise, assist or encourage any other person in connection with any action restricted or prohibited under clauses (1) through (5) of\nthis paragraph.\nFor purposes of this Agreement, a “Significant Event” means (i) the public announcement by the other party or any of its\nAffiliates of the entry by it into a definitive agreement providing for a business combination, merger, consolidation, share exchange, sale of more\nthan 50% of its assets, liquidation or similar transaction involving such other party or any of its Affiliates or any of their securities pursuant to\nwhich at least 50% of the outstanding shares of common stock of such party or Affiliate would be converted into cash or securities of another\nperson or 50% or more of the then outstanding shares of common stock of such party or Affiliate would be owned by persons other than the then\ncurrent holders of shares of common stock of\nsuch party or Affiliate, or which would result in more than 50% of the assets of such party and its Affiliates taken as a whole being sold to any\nperson or (ii) the commencement by an unAffiliated third party of a tender or exchange offer to acquire beneficial ownership of 50% or more of\nthe outstanding voting securities of the other party or any of its Affiliates.\n(d)\nFor the avoidance of doubt, it is understood and agreed that the obligations contained in this Section 5 are in addition\nto and are in no way in lieu of any other obligations that the parties may have under applicable securities laws and regulations. Each party\nhereby agrees to indemnify and hold harmless the other party and its Affiliates from and against any damage, loss, cost or liability (including\nreasonable legal fees and the cost of enforcing this indemnity) arising out of or resulting from any violation by such first party of any applicable\nsecurities laws or regulations.\n6.\nEntire Agreement. This Agreement constitutes the entire understanding of COMPANY and MARTEK with respect to the\nsubject matter hereof and supersedes any and all prior understandings, written or oral.\n7.\nThird Party Beneficiaries. It is understood and agreed that any breach by a party to this Agreement could have an adverse\neffect on one or more the Affiliates of the other party (in addition to the party itself). As a result, the Affiliates of each party shall be deemed to\nbe third party beneficiaries hereunder and shall have the right, as third party beneficiaries, to enforce the provisions of this Agreement against the\nother party.\n8.\nGoverning Law. This Agreement shall be governed by the substantive laws of the State of New York located in the United\nStates (excluding choice of law rules thereof that would result in the application of the laws of another jurisdiction). Each party irrevocably\nconsents to the personal jurisdiction of, and venue in, the state and federal courts within the State of New York.\n9.\nSeverability. The invalidity or unenforceability of any provisions hereof shall in no way affect the validity or enforceability of\nany other such provision. If any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so\nbroad as is enforceable.\n10.\nInjunctive Relief. Each party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential\nInformation and the standstill provisions of this Agreement, there can be no adequate remedy at law for any breach of a party’s obligations\nhereunder, that any such breach may result in irreparable harm to the other party, and therefore, that upon any such breach or threat thereof, the\nother party shall be entitled to seek injunctive relief to prevent such irreparable harm in addition to whatever remedies it might have at law or in\nequity.\n11.\nWaiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY\nAND ALL RIGHTS TO TRIAL BY JURY IN\nANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FROM ANY COUNTERCLAIM THEREIN.\n12.\nCounterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which\ntogether shall constitute one and the same instrument.\nIN WITNESS WHEREOF, each party hereto acknowledges that the representative named below has the authority to execute this\nAgreement on behalf of the respective party to form a legally binding contract and has caused this Agreement to be duly executed on its behalf.\nMARTEK BIOSCIENCES CORPORATION\nBy:\n/s/ David M. Feitel\nName: David M. Feitel\nTitle:\nExecutive VP and General Counsel\nKONINKLIJKE DSM N.V.\nBy:\n/s/ Hein Schreuder\nName: Hein Schreuder\nTitle:\nExecutive Vice President Corporate Strategy & Acquisitions\nBy:\n/s/ Stephan Tanda\nName: Stephan Tanda\nTitle:\nManaging Board Member\nAmendment No. 1\nto MUTUAL CONFIDENTIALITY AGREEMENT\nbetween\nMartek Biosciences Corporation\nand\nKoninklijke DSM N.V.\nThis Amendment No. 1 to the Mutual Confidentiality Agreement (“FIRST AMENDMENT”), is made and entered into as of December 7 2010,\nbetween Martek Biosciences Corporation, a Delaware Corporation having its principal place of business at 6480 Dobbin Road, Columbia,\nMaryland 21045 (herein referred to as “MARTEK”) and Koninklijke DSM N.V., having its principal place of business at Het Overloon 1, 6401\nJH Heerlen, The Netherlands (“COMPANY”).\nWHEREAS, MARTEK and COMPANY previously entered into a Mutual Confidentiality Agreement (“AGREEMENT”) dated\nDecember 8, 2009, and\nWHEREAS, MARTEK and COMPANY desire to amend section 3 of the AGREEMENT.\nNOW THEREFORE, in consideration of the premises and of the mutual covenants of the parties hereto, each party hereby agrees with\nthe other effective as of the date first above written, to amend the AGREEMENT as follows:\n1.\nSection 3 of the AGREEMENT, shall be replaced in its entirety with the following:\nTerm of Agreement. All disclosures of Confidential Information shall be completed within two (2) years of the Effective Date,\nunless either party before such date gives notice that it no longer desires to consider such mutual strategic business\nopportunities, but the obligations of Receiving Party under Paragraph 1 shall survive the expiration or terminate of this\nAgreement.\n2.\nThis FIRST AMENDMENT may be executed in counterparts, each of which shall be deemed an original and all of which\ntogether shall constitute one and the same FIRST AMENDMENT.\n3.\nAll other terms and conditions of the AGREEMENT not expressly modified herein shall remain in full force and effect.\nIN WITNESS WHEREOF, the parties have each caused this FIRST AMENDMENT to be signed and delivered by their duly\nauthorized representatives as of the date first written above.\nMARTEK BIOSCIENCES CORPORATION\nKONINKLIJKE DSM N.V.\nBy:\n/s/ David M. Feitel\nBy:\n/s/ Stephen Tanda\nName:\nDavid M. Feitel\nName:\nStephen Tanda\nTitle:\nEVP and General Counsel\nTitle:\nMember Managing Board\nBy:\n/s/ L.H. Staal\nName:\nL.H Staal\nTitle:\nPresident & CEO DNP
+a379d8a70e3f5c317078e4cb92bec8f0.pdf	effective_date jurisdiction party term	NON-DISCLOSURE AGREEMENT\nRELATING TO [***]\nThis Non Disclosure Agreement (hereinafter called the "NDA") is made on this 15th day of December 2017.\nBETWEEN\nAIRBUS S.A.S., a French société par actions simplifiée, with its registered office at 2, rond-point Emile Dewoitine, 31700 Blagnac,\nFrance, registered with the Commercial and Companies Register of Toulouse under number 383 474 814 (hereinafter referred to as\n"Airbus")\nAND\nDelta Air Lines, Inc., incorporated under the laws of Delaware, with offices at 1050 Delta Boulevard, Atlanta GE 30320\n(hereinafter referred to as the "Company")\n(Each of them hereinafter referred to as "Party" or together as "Parties")\nWHEREAS:\nThe Company and the Buyer have entered into an Airbus A321 NEO Aircraft Purchase Agreement of even date herewith (the\n“Agreement”) which covers, among other matters, the sale by the Seller and the purchase by the Buyer of certain Aircraft, under the\nterms and conditions set forth in said Agreement.\nA.\nAs part of its commitment in the Agreement, Airbus has agreed to [***]\nC\nIn order to protect any such information, the Parties have decided to enter into this NDA. For avoidance of doubt, the\nAirbus Companies shall not be deemed to be third parties and any such information may freely circulate among them.\nNOW IT IS HEREBY AGREED AS FOLLOWS:\n1.\nDEFINITIONS\nIn this NDA and unless otherwise defined herein, the following terms shall have the meanings set out below:\n“Airbus Companies”\nmeans Airbus S.A.S or its affiliates\n"Confidential Information"\nmeans any proprietary, confidential and sensitive commercial or technical information disclosed by\nthe Disclosing Party (as defined below) to the Receiving Party (as defined below) in relation to or\nin anyway connected with the [***]\nFor avoidance of doubt, all and any version of Airbus specifications shall be considered as Confidential\nInformation.\n"Disclosing Party" means Airbus;\n"Employees"\nmeans the employees, officers, directors, and agents of the Receiving Party;\n"Receiving Party" means the Company.\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\n2.\nOBLIGATIONS OF THE RECEIVING PARTY\nIn consideration of its receipt of the Confidential Information from the Disclosing Party, the Receiving Party shall:\n(a)\nTreat all Confidential Information received from the Disclosing Party as proprietary and confidential and unless\nexpressly authorized in writing to do so by the Disclosing Party, shall not disclose any Confidential Information to\nthird parties (except as provided herein) and shall only use such Confidential Information for purposes relating to\nthe support of its own operations and network planning activities. .\n(b) Only disseminate Confidential Information to Employees to the extent that such Employees have a demonstrable\nneed to know the same in order to carry out their tasks in relation to the Project;\n(c)\nEnsure that all Employees who have access to Confidential Information are made aware of the confidential nature\nof the Confidential Information and of the obligations contained in this NDA;\n(d) Promptly notify the Disclosing Party if it becomes aware of a breach of any provision of this NDA by any of its\nEmployees and take all the necessary measures to ensure that the disclosures in breach of this NDA cease\nimmediately;\n(e)\nExcept as authorized in writing by the Disclosing Party, only use, copy or reduce Confidential Information into\ntangible, visible or recorded form as is strictly necessary for the performance of the Project;\n(f)\nProtect the Confidential Information with at least the same degree of care as it uses to protect its own Confidential\nInformation but in no instance shall such standard be less than reasonable care;\n(g) Not remove, alter or deface any designations relating to the confidential or proprietary nature of the Confidential\nInformation;\n3. LIMITS TO OBLIGATIONS ON THE RECEIVING PARTY\n3.1\nThe obligations contained in Article 2 above shall not apply to Confidential Information:\n(a)\nWhich is in the public domain at the time of disclosure or becomes part of the public domain after disclosure\notherwise than through a breach of this NDA; or\n(b)\nFor which the Receiving Party can provide evidence that it was in its lawful possession prior to disclosure to it by\nthe Disclosing Party or which is lawfully and bona fide obtained thereafter by the Receiving Party from a third\nparty who, to the knowledge or reasonable belief of the Receiving Party, did not receive such information directly\nor indirectly from the Disclosing Party when under a duty of confidentiality; or\n(c)\nFor which the Receiving Party can provide proof that it was independently developed by the Receiving Party\nwithout prior knowledge of any Confidential Information obtained from the Disclosing Party.\n3.2\nThe obligations contained in Article 2 shall not apply to a specific disclosure of Confidential Information if such disclosure\nmeets one of the following conditions:\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\n(a)\nIt has to be disclosed by reason of a governmental or judicial order or applicable law. In such a case, the Party\nhaving received such an order or being subject to such applicable law shall promptly inform the Disclosing Party of\nits obligation to disclose Confidential Information if possible prior to such disclosure and consult the Disclosing\nParty on the advisability of taking steps to limit the disclosure. If the Disclosing Party wishes to counter such order\nor applicable law, the Receiving Party shall provide reasonable assistance to it in doing so, at the Disclosing Party’s\nexpense, provided that neither such time to consult, nor such reasonable assistance, shall compromise the obligation\nof the Party having received such an order to respond to such governmental or judicial order; or\n(b) It is further disclosed by the Receiving Party in confidence to any third party with the prior written consent of the\nDisclosing Party.\n4. PROPRIETARY RIGHTS\nExcept as expressly stated in writing by the Disclosing Party, neither the disclosure pursuant to this NDA of Confidential\nInformation nor anything contained in this NDA shall be construed as expressly or implicitly granting any rights to the\nReceiving Party in respect of any patent, copyright, license or other intellectual property right in force and belonging to or\ndisclosed by, the Disclosing Party.\n5. PROVISIONS IN CASE OF BREACH\n(a)\nTermination\nIf the Receiving Party has committed a breach of any provision of this NDA, the Disclosing Party shall have the\nright to terminate forthwith this NDA by written notice thereof and without prejudice to any other right, claim or\nremedy it may have at law or in contract. The Receiving Party shall, upon request from and at the discretion of the\nDisclosing Party, immediately return or destroy all copies of Confidential Information disclosed under or in relation\nto this NDA. All Confidential information disclosed between the parties before such termination shall remain\nconfidential.\n(b)\nTraditional Remedies\nIn that situation, both parties keep their usual rights to seek remedies for their damages incurred by such violation\nby the Receiving Party or its representative(s).\n(c)\nParties will be entitled to use other legal remedies available including, but not limited to injunction.\n6. NO WAIVER\nThe Receiving Party agrees that no failure nor any delay in exercising on the part of the Disclosing Party any right or\nremedy under this NDA shall operate as a waiver thereof (in whole or in part), nor shall any single or partial exercise of any\nright or remedy prevent any further, future or other exercise thereof or any other right or remedy. The rights and remedies\nexisting by virtue of this NDA shall be cumulative and not exclusive of any rights or remedies provided by law.\n7. DURATION OF THIS NDA\n(a)\nThis NDA shall commence on the date first above written and shall continue for [***] or until both Parties agree in\nwriting that such NDA is no longer needed and decide to cease it. Notwithstanding the termination of the NDA, all\nConfidential information that will have been disclosed prior to the date of termination shall remain confidential\nexcept if such information ceases to be confidential for the reasons mentioned in Article 3 above.\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\n(b) Upon termination each Party shall, upon request of the other Party, return, at the requester’s costs, or destroy any\nConfidential Information received by the other Party.\n8. MISCELLANEOUS\n(a)\nNeither Party shall publicly release any information relating to this NDA and the result of the discussions without\nthe prior written consent of the other Party.\n(b)\nThe invalidity, illegality or unenforceability of any provision of this NDA under any jurisdiction shall not affect the\nvalidity, legality or enforceability of any other provision hereof.\n(c)\nEach Party shall promptly advise the other in the event that it becomes aware of the possession, use or knowledge\nof any Confidential Information by any third party not authorized to possess, use or have such knowledge.\n9. GOVERNING LAW AND ARBITRATION\n9.1\nTHIS NDA SHALL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF SHALL BE\nDETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING\nEFFECT TO ITS CONFLICTS OF LAWS PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF THE\nLAW OF ANY OTHER JURISDICTION.\n9.2\nEach of the Company and Airbus (i) hereby irrevocably submits itself to the exclusive jurisdiction of the courts sitting in\nthe Borough of Manhattan, New York County, New York, for the purposes of any suit, action or other proceeding arising\nout of this Agreement, the subject matter hereof or any of the transactions contemplated hereby brought by any party or\nparties hereto, and (ii) hereby waives, and agrees not to assert, by way of motion, as a defence or otherwise, in any such\nsuit, action or proceeding, to the extent permitted by applicable law, any defence based on sovereign or other immunity or\nthat the suit, action or proceeding which is referred to in clause (i) above is brought in an inconvenient forum, that the\nvenue of such suit, action or proceeding is improper, or that this Agreement or the subject matter hereof or any of the\ntransactions contemplated hereby may not be enforced in or by these courts.\n10. ASSIGNMENT; COUNTERPARTS\nNeither Party shall assign or transfer any of its rights or obligations under this NDA without the prior written consent of the\nother Party, such consent not to be unreasonably withheld or delayed.\nNotwithstanding the above, Airbus may assign this NDA, upon notice in writing to the other Party, to a company controlled\nby Airbus.\nThis Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and\ndelivered will be an original, but all such counterparts will together constitute but one and the same instrument.\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\nIN WITNESS WHEREOF the Parties have executed this NDA on the date first above written, in two (2) original copies.\nAIRBUS SAS\nacting in its own name and in the name and on behalf of the Airbus Companies\nName: /s/ Christophe Mourey\nTitle: Senior Vice President Contracts\nDELTA AIR LINES, INC.\nName: /s/ Gregory A. May\nTitle: Senior Vice President - Supply Chain Management and Fleet\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.	NON-DISCLOSURE AGREEMENT\nRELATING TO [***]\nThis Non Disclosure Agreement (hereinafter called the "NDA") is made on this 15" day of December 2017.\nBETWEEN\nAIRBUS S.A.S., a French société par actions simplifiée, with its registered office at 2, rond-point Emile Dewoitine, 31700 Blagnac,\nFrance, registered with the Commercial and Companies Register of Toulouse under number 383 474 814 (hereinafter referred to as\n"Airbus")\nAND\nDelta Air Lines, Inc., incorporated under the laws of Delaware, with offices at 1050 Delta Boulevard, Atlanta GE 30320\n(hereinafter referred to as the "Company")\n(Each of them hereinafter referred to as "Party" or together as "Parties")\nWHEREAS:\nThe Company and the Buyer have entered into an Airbus A321 NEO Aircraft Purchase Agreement of even date herewith (the\n“Agreement”) which covers, among other matters, the sale by the Seller and the purchase by the Buyer of certain Aircraft, under the\nterms and conditions set forth in said Agreement.\nA. As part of its commitment in the Agreement, Airbus has agreed to [***]\nC In order to protect any such information, the Parties have decided to enter into this NDA. For avoidance of doubt, the\nAirbus Companies shall not be deemed to be third parties and any such information may freely circulate among them.\nNOW IT IS HEREBY AGREED AS FOLLOWS:\n1. DEFINITIONS\nIn this NDA and unless otherwise defined herein, the following terms shall have the meanings set out below:\n“Airbus Companies”  means Airbus S.A.S or its affiliates\n"Confidential Information" means any proprietary, confidential and sensitive commercial or technical information disclosed by\nthe Disclosing Party (as defined below) to the Receiving Party (as defined below) in relation to or\nin anyway connected with the [***]\nFor avoidance of doubt, all and any version of Airbus specifications shall be considered as Confidential\nInformation.\n"Disclosing Party" means Airbus;\n"Employees" means the employees, officers, directors, and agents of the Receiving Party;\n"Receiving Party" means the Company.\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\n2. OBLIGATIONS OF THE RECEIVING PARTY In consideration of its receipt of the Confidential Information from the Disclosing Party, the Receiving Party shall: (a)\n(b)\n(©\n(d)\n(e)\n()\n(8\nTreat all Confidential Information received from the Disclosing Party as proprietary and confidential and unless\nexpressly authorized in writing to do so by the Disclosing Party, shall not disclose any Confidential Information to\nthird parties (except as provided herein) and shall only use such Confidential Information for purposes relating to\nthe support of its own operations and network planning activities. .\nOnly disseminate Confidential Information to Employees to the extent that such Employees have a demonstrable\nneed to know the same in order to carry out their tasks in relation to the Project;\nEnsure that all Employees who have access to Confidential Information are made aware of the confidential nature\nof the Confidential Information and of the obligations contained in this NDA;\nPromptly notify the Disclosing Party if it becomes aware of a breach of any provision of this NDA by any of its\nEmployees and take all the necessary measures to ensure that the disclosures in breach of this NDA cease\nimmediately;\nExcept as authorized in writing by the Disclosing Party, only use, copy or reduce Confidential Information into\ntangible, visible or recorded form as is strictly necessary for the performance of the Project;\nProtect the Confidential Information with at least the same degree of care as it uses to protect its own Confidential\nInformation but in no instance shall such standard be less than reasonable care;\nNot remove, alter or deface any designations relating to the confidential or proprietary nature of the Confidential\nInformation;\n3. LIMITS TO OBLIGATIONS ON THE RECEIVING PARTY 3.1 The obligations contained in Article 2 above shall not apply to Confidential Information: (a)\n(b)\n(©\nWhich is in the public domain at the time of disclosure or becomes part of the public domain after disclosure\notherwise than through a breach of this NDA; or\nFor which the Receiving Party can provide evidence that it was in its lawful possession prior to disclosure to it by\nthe Disclosing Party or which is lawfully and bona fide obtained thereafter by the Receiving Party from a third\nparty who, to the knowledge or reasonable belief of the Receiving Party, did not receive such information directly\nor indirectly from the Disclosing Party when under a duty of confidentiality; or\nFor which the Receiving Party can provide proof that it was independently developed by the Receiving Party\nwithout prior knowledge of any Confidential Information obtained from the Disclosing Party.\n3.2 The obligations contained in Article 2 shall not apply to a specific disclosure of Confidential Information if such disclosure meets one of the following conditions: NDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\f(b)\nIt has to be disclosed by reason of a governmental or judicial order or applicable law. In such a case, the Party\nhaving received such an order or being subject to such applicable law shall promptly inform the Disclosing Party of\nits obligation to disclose Confidential Information if possible prior to such disclosure and consult the Disclosing\nParty on the advisability of taking steps to limit the disclosure. If the Disclosing Party wishes to counter such order\nor applicable law, the Receiving Party shall provide reasonable assistance to it in doing so, at the Disclosing Party’s\nexpense, provided that neither such time to consult, nor such reasonable assistance, shall compromise the obligation\nof the Party having received such an order to respond to such governmental or judicial order; or\nIt is further disclosed by the Receiving Party in confidence to any third party with the prior written consent of the\nDisclosing Party.\n4. PROPRIETARY RIGHTS Except as expressly stated in writing by the Disclosing Party, neither the disclosure pursuant to this NDA of Confidential Information nor anything contained in this NDA shall be construed as expressly or implicitly granting any rights to the Receiving Party in respect of any patent, copyright, license or other intellectual property right in force and belonging to or disclosed by, the Disclosing Party. 5. PROVISIONS IN CASE OF BREACH (a)\n(b)\n(©\nTermination\nIf the Receiving Party has committed a breach of any provision of this NDA, the Disclosing Party shall have the\nright to terminate forthwith this NDA by written notice thereof and without prejudice to any other right, claim or\nremedy it may have at law or in contract. The Receiving Party shall, upon request from and at the discretion of the\nDisclosing Party, immediately return or destroy all copies of Confidential Information disclosed under or in relation\nto this NDA. All Confidential information disclosed between the parties before such termination shall remain\nconfidential.\nTraditional Remedies\nIn that situation, both parties keep their usual rights to seek remedies for their damages incurred by such violation\nby the Receiving Party or its representative(s).\nParties will be entitled to use other legal remedies available including, but not limited to injunction.\n6. NO WAIVER The Receiving Party agrees that no failure nor any delay in exercising on the part of the Disclosing Party any right or remedy under this NDA shall operate as a waiver thereof (in whole or in part), nor shall any single or partial exercise of any right or remedy prevent any further, future or other exercise thereof or any other right or remedy. The rights and remedies existing by virtue of this NDA shall be cumulative and not exclusive of any rights or remedies provided by law. 7. DURATION OF THIS NDA (a)\nThis NDA shall commence on the date first above written and shall continue for [***] or until both Parties agree in\nwriting that such NDA is no longer needed and decide to cease it. Notwithstanding the termination of the NDA, all\nConfidential information that will have been disclosed prior to the date of termination shall remain confidential\nexcept if such information ceases to be confidential for the reasons mentioned in Article 3 above.\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\f(b) Upon termination each Party shall, upon request of the other Party, return, at the requester’s costs, or destroy any\nConfidential Information received by the other Party.\n8. MISCELLANEOUS (a) Neither Party shall publicly release any information relating to this NDA and the result of the discussions without\nthe prior written consent of the other Party.\n(b) The invalidity, illegality or unenforceability of any provision of this NDA under any jurisdiction shall not affect the\nvalidity, legality or enforceability of any other provision hereof.\n(© Each Party shall promptly advise the other in the event that it becomes aware of the possession, use or knowledge\nof any Confidential Information by any third party not authorized to possess, use or have such knowledge.\n9. GOVERNING LAW AND ARBITRATION 9.1\n9.2\nTHIS NDA SHALL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF SHALL BE\nDETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING\nEFFECT TO ITS CONFLICTS OF LAWS PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF THE\nLAW OF ANY OTHER JURISDICTION.\nEach of the Company and Airbus (i) hereby irrevocably submits itself to the exclusive jurisdiction of the courts sitting in\nthe Borough of Manhattan, New York County, New York, for the purposes of any suit, action or other proceeding arising\nout of this Agreement, the subject matter hereof or any of the transactions contemplated hereby brought by any party or\nparties hereto, and (ii) hereby waives, and agrees not to assert, by way of motion, as a defence or otherwise, in any such\nsuit, action or proceeding, to the extent permitted by applicable law, any defence based on sovereign or other immunity or\nthat the suit, action or proceeding which is referred to in clause (i) above is brought in an inconvenient forum, that the\nvenue of such suit, action or proceeding is improper, or that this Agreement or the subject matter hereof or any of the\ntransactions contemplated hereby may not be enforced in or by these courts.\n10. ASSIGNMENT; COUNTERPARTS Neither Party shall assign or transfer any of its rights or obligations under this NDA without the prior written consent of the\nother Party, such consent not to be unreasonably withheld or delayed.\nNotwithstanding the above, Airbus may assign this NDA, upon notice in writing to the other Party, to a company controlled\nby Airbus.\nThis Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and\ndelivered will be an original, but all such counterparts will together constitute but one and the same instrument.\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\fIN WITNESS WHEREOF the Parties have executed this NDA on the date first above written, in two (2) original copies.\nAIRBUS SAS\nacting in its own name and in the name and on behalf of the Airbus Companies\nName: /s/ Christophe Mourey\nTitle: Senior Vice President Contracts\nDEITA AIR LINES, INC.\nName: /s/ Gregory A. May\nTitle: Senior Vice President - Supply Chain Management and Fleet\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.	NON-DISCLOSURE AGREEMENT\nRELATING TO [*****]\nThis Non Disclosure Agreement (hereinafter called the "NDA") is made on this 15th day of December 2017.\nBETWEEN\nAIRBUS S.A.S., a French societe par actions simplifiee, with its registered office at 2, rond-point Emile Dewoitine, 31700 Blagnac,\nFrance, registered with the Commercial and Companies Register of Toulouse under number 383 474 814 (hereinafter referred to as\n"Airbus")\nAND\nDelta Air Lines, Inc., incorporated under the laws of Delaware, with offices at 1050 Delta Boulevard, Atlanta GE 30320\n(hereinafter referred to as the "Company")\n(Each of them hereinafter referred to as "Party" or together as "Parties")\nWHEREAS:\nThe Company and the Buyer have entered into an Airbus A321 NEO Aircraft Purchase Agreement of even date herewith (the\n"Agreement") which covers, among other matters, the sale by the Seller and the purchase by the Buyer of certain Aircraft, under the\nterms and conditions set forth in said Agreement.\nA.\nAs part of its commitment in the Agreement, Airbus has agreed to [****]\nC\nIn order to protect any such information, the Parties have decided to enter into this NDA. For avoidance of doubt, the\nAirbus Companies shall not be deemed to be third parties and any such information may freely circulate among them.\nNOW IT IS HEREBY AGREED AS FOLLOWS:\n1.\nDEFINITIONS\nIn this NDA and unless otherwise defined herein, the following terms shall have the meanings set out below:\n"Airbus Companies" means Airbus S.A.S or its affiliates\n"Confidential Information" means any proprietary, confidential and sensitive commercial or technical information disclosed by\nthe Disclosing Party (as defined below) to the Receiving Party (as defined below) in relation to or\nin anyway connected with the [****]\nFor avoidance of doubt, all and any version of Airbus specifications shall be considered as Confidential\nInformation.\n"Disclosing Party" means Airbus;\n"Employees"\nmeans the employees, officers, directors, and agents of the Receiving Party;\n"Receiving Party"\nmeans the Company.\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [****]\n[*****] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\n2.\nOBLIGATIONS OF THE RECEIVING PARTY\nIn consideration of its receipt of the Confidential Information from the Disclosing Party, the Receiving Party shall:\n(a)\nTreat all Confidential Information received from the Disclosing Party as proprietary and confidential and unless\nexpressly authorized in writing to do SO by the Disclosing Party, shall not disclose any Confidential Information to\nthird parties (except as provided herein) and shall only use such Confidential Information for purposes relating to\nthe support of its own operations and network planning activities.\n(b)\nOnly disseminate Confidential Information to Employees to the extent that such Employees have a demonstrable\nneed to know the same in order to carry out their tasks in relation to the Project;\n(c)\nEnsure that all Employees who have access to Confidential Information are made aware of the confidential nature\nof the Confidential Information and of the obligations contained in this NDA;\n(d)\nPromptly notify the Disclosing Party if it becomes aware of a breach of any provision of this NDA by any of its\nEmployees and take all the necessary measures to ensure that the disclosures in breach of this NDA cease\nimmediately;\n(e)\nExcept as authorized in writing by the Disclosing Party, only use, copy or reduce Confidential Information into\ntangible, visible or recorded form as is strictly necessary for the performance of the Project;\n(f)\nProtect the Confidential Information with at least the same degree of care as it uses to protect its own Confidential\nInformation but in no instance shall such standard be less than reasonable care;\n(g)\nNot remove, alter or deface any designations relating to the confidential or proprietary nature of the Confidential\nInformation;\n3.\nLIMITS TO OBLIGATIONS ON THE RECEIVING PARTY\n3.1\nThe obligations contained in Article 2 above shall not apply to Confidential Information:\n(a)\nWhich is in the public domain at the time of disclosure or becomes part of the public domain after disclosure\notherwise than through a breach of this NDA; or\n(b)\nFor which the Receiving Party can provide evidence that it was in its lawful possession prior to disclosure to it by\nthe Disclosing Party or which is lawfully and bona fide obtained thereafter by the Receiving Party from a third\nparty who, to the knowledge or reasonable belief of the Receiving Party, did not receive such information directly\nor indirectly from the Disclosing Party when under a duty of confidentiality; or\n(c)\nFor which the Receiving Party can provide proof that it was independently developed by the Receiving Party\nwithout prior knowledge of any Confidential Information obtained from the Disclosing Party.\n3.2\nThe obligations contained in Article 2 shall not apply to a specific disclosure of Confidential Information if such disclosure\nmeets one of the following conditions\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [*****]\n[****] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\n(a)\nIt has to be disclosed by reason of a governmental or judicial order or applicable law. In such a case, the Party\nhaving received such an order or being subject to such applicable law shall promptly inform the Disclosing Party of\nits obligation to disclose Confidential Information if possible prior to such disclosure and consult the Disclosing\nParty\non\nthe advisability of taking steps to limit the disclosure. If the Disclosing Party wishes to counter such order\nor applicable law, the Receiving Party shall provide reasonable assistance to it in doing so, at the Disclosing Party's\nexpense, provided that neither such time to consult, nor such reasonable assistance, shall compromise the obligation\nof the Party having received such an order to respond to such governmental or judicial order; or\n(b)\nIt is further disclosed by the Receiving Party in confidence to any third party with the prior written consent of the\nDisclosing Party.\n4.\nPROPRIETARY RIGHTS\nExcept as expressly stated in writing by the Disclosing Party, neither the disclosure pursuant to this NDA of Confidential\nInformation\nnor anything contained in this NDA shall be construed as expressly or implicitly granting any rights to the\nReceiving Party in respect of any patent, copyright, license or other intellectual property right in force and belonging to or\ndisclosed by, the Disclosing Party.\n5. PROVISIONS IN CASE OF BREACH\n(a)\nTermination\nIf the Receiving Party has committed a breach of any provision of this NDA, the Disclosing Party shall have the\nright to terminate forthwith this NDA by written notice thereof and without prejudice to any other right, claim or\nremedy it may have at law or in contract. The Receiving Party shall, upon request from and at the discretion of the\nDisclosing Party, immediately return or destroy all copies of Confidential Information disclosed under or in relation\nto this NDA. All Confidentia information disclosed between the parties before such termination shall remain\nconfidential.\n(b)\nTraditional Remedies\nIn that situation, both parties keep their usual rights to seek remedies for their damages incurred by such violation\nby the Receiving Party or its representative(s).\n(c)\nParties will be entitled to use other legal remedies available including, but not limited to injunction.\n6. NO WAIVER\nThe Receiving Party agrees that no failure nor any delay in exercising on the part of the Disclosing Party any right or\nremedy under this NDA shall operate as a waiver thereof (in whole or in part), nor shall any single or partial exercise of any\nright or remedy prevent any further, future or other exercise thereof or any other right or remedy. The rights and remedies\nexisting by virtue of this NDA shall be cumulative and not exclusive of any rights or remedies provided by law.\n7.\nDURATION OF THIS NDA\n(a)\nThis NDA shall commence on the date first above written and shall continue for [***] or until both Parties agree in\nwriting that such NDA is no longer needed and decide to cease it. Notwithstanding the termination of the NDA, all\nConfidential information that will have been disclosed prior to the date of termination shall remain confidential\nexcept if such information ceases to be confidential for the reasons mentioned in Article 3 above.\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\nConfidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\n(b)\nUpon termination each Party shall, upon request of the other Party, return, at the requester's costs, or destroy any\nConfidential Information received by the other Party.\n8. MISCELLANEOUS\n(a)\nNeither Party shall publicly release any information relating to this NDA and the result of the discussions without\nthe prior written consent of the other Party.\n(b)\nThe invalidity, illegality or unenforceability of any provision of this NDA under any jurisdiction shall not affect the\nvalidity, legality or enforceability of any other provision hereof.\n(c)\nEach Party shall promptly advise the other in the event that it becomes aware of the possession, use or knowledge\nof any Confidential Information by any third party not authorized to possess, use or have such knowledge.\n9. GOVERNING LAW AND ARBITRATION\n9.1\nTHIS NDA SHALL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF SHALL BE\nDETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING\nEFFECT TO ITS CONFLICTS OF LAWS PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF THE\nLAW OF ANY OTHER JURISDICTION.\n9.2\nEach of the Company and Airbus (i) hereby irrevocably submits itself to the exclusive jurisdiction of the courts sitting in\nthe Borough of Manhattan, New York County, New York, for the purposes of any suit, action or other proceeding arising\nout of this Agreement, the subject matter hereof or any of the transactions contemplated hereby brought by any party or\nparties hereto, and (ii) hereby waives, and agrees not to assert, by way of motion, as a defence or otherwise, in any such\nsuit, action or proceeding, to the extent permitted by applicable law, any defence based on sovereign or other immunity or\nthat the suit, action or proceeding which is referred to in clause (i) above is brought in an inconvenient forum, that the\nvenue of such suit, action or proceeding is improper, or that this Agreement or the subject matter hereof or any of the\ntransactions contemplated hereby may not be enforced in or by these courts.\n10. ASSIGNMENT; COUNTERPARTS\nNeither Party shall assign or transfer any of its rights or obligations under this NDA without the prior written consent of the\nother Party, such consent not to be unreasonably withheld or delayed.\nNotwithstanding the above, Airbus may assign this NDA, upon notice in writing to the other Party, to a company controlled\nby Airbus.\nThis Agreement may be executed by the parties hereto in separate counterparts, each of which when SO executed and\ndelivered will be an original, but all such counterparts will together constitute but one and the same instrument.\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [****]\n[****] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\nIN WITNESS WHEREOF the Parties have executed this NDA on the date first above written, in two (2) original copies.\nAIRBUS SAS\nacting in its own name and in the name and on behalf of the Airbus Companies\nName: /s/ Christophe Mourey.\nTitle: Senior Vice President Contracts\nDELTA AIR LINES, INC.\nName: /s/ Gregory_ A. May.\nTitle: Senior Vice President - Supply Chain Management and Fleet\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [** ****]\n[****] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.	NON-DISCLOSURE AGREEMENT\nRELATING TO [***]\nThis Non Disclosure Agreement (hereinafter called the "NDA") is made on this 15th day of December 2017.\nBETWEEN\nAIRBUS S.A.S., a French société par actions simplifiée, with its registered office at 2, rond-point Emile Dewoitine, 31700 Blagnac,\nFrance, registered with the Commercial and Companies Register of Toulouse under number 383 474 814 (hereinafter referred to as\n"Airbus")\nAND\nDelta Air Lines, Inc., incorporated under the laws of Delaware, with offices at 1050 Delta Boulevard, Atlanta GE 30320\n(hereinafter referred to as the "Company")\n(Each of them hereinafter referred to as "Party" or together as "Parties")\nWHEREAS:\nThe Company and the Buyer have entered into an Airbus A321 NEO Aircraft Purchase Agreement of even date herewith (the\n“Agreement”) which covers, among other matters, the sale by the Seller and the purchase by the Buyer of certain Aircraft, under the\nterms and conditions set forth in said Agreement.\nA.\nAs part of its commitment in the Agreement, Airbus has agreed to [***]\nC\nIn order to protect any such information, the Parties have decided to enter into this NDA. For avoidance of doubt, the\nAirbus Companies shall not be deemed to be third parties and any such information may freely circulate among them.\nNOW IT IS HEREBY AGREED AS FOLLOWS:\n1.\nDEFINITIONS\nIn this NDA and unless otherwise defined herein, the following terms shall have the meanings set out below:\n“Airbus Companies”\nmeans Airbus S.A.S or its affiliates\n"Confidential Information"\nmeans any proprietary, confidential and sensitive commercial or technical information disclosed by\nthe Disclosing Party (as defined below) to the Receiving Party (as defined below) in relation to or\nin anyway connected with the [***]\nFor avoidance of doubt, all and any version of Airbus specifications shall be considered as Confidential\nInformation.\n"Disclosing Party" means Airbus;\n"Employees"\nmeans the employees, officers, directors, and agents of the Receiving Party;\n"Receiving Party" means the Company.\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\n2.\nOBLIGATIONS OF THE RECEIVING PARTY\nIn consideration of its receipt of the Confidential Information from the Disclosing Party, the Receiving Party shall:\n(a)\nTreat all Confidential Information received from the Disclosing Party as proprietary and confidential and unless\nexpressly authorized in writing to do so by the Disclosing Party, shall not disclose any Confidential Information to\nthird parties (except as provided herein) and shall only use such Confidential Information for purposes relating to\nthe support of its own operations and network planning activities. .\n(b) Only disseminate Confidential Information to Employees to the extent that such Employees have a demonstrable\nneed to know the same in order to carry out their tasks in relation to the Project;\n(c)\nEnsure that all Employees who have access to Confidential Information are made aware of the confidential nature\nof the Confidential Information and of the obligations contained in this NDA;\n(d) Promptly notify the Disclosing Party if it becomes aware of a breach of any provision of this NDA by any of its\nEmployees and take all the necessary measures to ensure that the disclosures in breach of this NDA cease\nimmediately;\n(e)\nExcept as authorized in writing by the Disclosing Party, only use, copy or reduce Confidential Information into\ntangible, visible or recorded form as is strictly necessary for the performance of the Project;\n(f)\nProtect the Confidential Information with at least the same degree of care as it uses to protect its own Confidential\nInformation but in no instance shall such standard be less than reasonable care;\n(g) Not remove, alter or deface any designations relating to the confidential or proprietary nature of the Confidential\nInformation;\n3. LIMITS TO OBLIGATIONS ON THE RECEIVING PARTY\n3.1\nThe obligations contained in Article 2 above shall not apply to Confidential Information:\n(a)\nWhich is in the public domain at the time of disclosure or becomes part of the public domain after disclosure\notherwise than through a breach of this NDA; or\n(b)\nFor which the Receiving Party can provide evidence that it was in its lawful possession prior to disclosure to it by\nthe Disclosing Party or which is lawfully and bona fide obtained thereafter by the Receiving Party from a third\nparty who, to the knowledge or reasonable belief of the Receiving Party, did not receive such information directly\nor indirectly from the Disclosing Party when under a duty of confidentiality; or\n(c)\nFor which the Receiving Party can provide proof that it was independently developed by the Receiving Party\nwithout prior knowledge of any Confidential Information obtained from the Disclosing Party.\n3.2\nThe obligations contained in Article 2 shall not apply to a specific disclosure of Confidential Information if such disclosure\nmeets one of the following conditions:\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\n(a)\nIt has to be disclosed by reason of a governmental or judicial order or applicable law. In such a case, the Party\nhaving received such an order or being subject to such applicable law shall promptly inform the Disclosing Party of\nits obligation to disclose Confidential Information if possible prior to such disclosure and consult the Disclosing\nParty on the advisability of taking steps to limit the disclosure. If the Disclosing Party wishes to counter such order\nor applicable law, the Receiving Party shall provide reasonable assistance to it in doing so, at the Disclosing Party’s\nexpense, provided that neither such time to consult, nor such reasonable assistance, shall compromise the obligation\nof the Party having received such an order to respond to such governmental or judicial order; or\n(b) It is further disclosed by the Receiving Party in confidence to any third party with the prior written consent of the\nDisclosing Party.\n4. PROPRIETARY RIGHTS\nExcept as expressly stated in writing by the Disclosing Party, neither the disclosure pursuant to this NDA of Confidential\nInformation nor anything contained in this NDA shall be construed as expressly or implicitly granting any rights to the\nReceiving Party in respect of any patent, copyright, license or other intellectual property right in force and belonging to or\ndisclosed by, the Disclosing Party.\n5. PROVISIONS IN CASE OF BREACH\n(a)\nTermination\nIf the Receiving Party has committed a breach of any provision of this NDA, the Disclosing Party shall have the\nright to terminate forthwith this NDA by written notice thereof and without prejudice to any other right, claim or\nremedy it may have at law or in contract. The Receiving Party shall, upon request from and at the discretion of the\nDisclosing Party, immediately return or destroy all copies of Confidential Information disclosed under or in relation\nto this NDA. All Confidential information disclosed between the parties before such termination shall remain\nconfidential.\n(b)\nTraditional Remedies\nIn that situation, both parties keep their usual rights to seek remedies for their damages incurred by such violation\nby the Receiving Party or its representative(s).\n(c)\nParties will be entitled to use other legal remedies available including, but not limited to injunction.\n6. NO WAIVER\nThe Receiving Party agrees that no failure nor any delay in exercising on the part of the Disclosing Party any right or\nremedy under this NDA shall operate as a waiver thereof (in whole or in part), nor shall any single or partial exercise of any\nright or remedy prevent any further, future or other exercise thereof or any other right or remedy. The rights and remedies\nexisting by virtue of this NDA shall be cumulative and not exclusive of any rights or remedies provided by law.\n7. DURATION OF THIS NDA\n(a)\nThis NDA shall commence on the date first above written and shall continue for [***] or until both Parties agree in\nwriting that such NDA is no longer needed and decide to cease it. Notwithstanding the termination of the NDA, all\nConfidential information that will have been disclosed prior to the date of termination shall remain confidential\nexcept if such information ceases to be confidential for the reasons mentioned in Article 3 above.\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\n(b) Upon termination each Party shall, upon request of the other Party, return, at the requester’s costs, or destroy any\nConfidential Information received by the other Party.\n8. MISCELLANEOUS\n(a)\nNeither Party shall publicly release any information relating to this NDA and the result of the discussions without\nthe prior written consent of the other Party.\n(b)\nThe invalidity, illegality or unenforceability of any provision of this NDA under any jurisdiction shall not affect the\nvalidity, legality or enforceability of any other provision hereof.\n(c)\nEach Party shall promptly advise the other in the event that it becomes aware of the possession, use or knowledge\nof any Confidential Information by any third party not authorized to possess, use or have such knowledge.\n9. GOVERNING LAW AND ARBITRATION\n9.1\nTHIS NDA SHALL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF SHALL BE\nDETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING\nEFFECT TO ITS CONFLICTS OF LAWS PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF THE\nLAW OF ANY OTHER JURISDICTION.\n9.2\nEach of the Company and Airbus (i) hereby irrevocably submits itself to the exclusive jurisdiction of the courts sitting in\nthe Borough of Manhattan, New York County, New York, for the purposes of any suit, action or other proceeding arising\nout of this Agreement, the subject matter hereof or any of the transactions contemplated hereby brought by any party or\nparties hereto, and (ii) hereby waives, and agrees not to assert, by way of motion, as a defence or otherwise, in any such\nsuit, action or proceeding, to the extent permitted by applicable law, any defence based on sovereign or other immunity or\nthat the suit, action or proceeding which is referred to in clause (i) above is brought in an inconvenient forum, that the\nvenue of such suit, action or proceeding is improper, or that this Agreement or the subject matter hereof or any of the\ntransactions contemplated hereby may not be enforced in or by these courts.\n10. ASSIGNMENT; COUNTERPARTS\nNeither Party shall assign or transfer any of its rights or obligations under this NDA without the prior written consent of the\nother Party, such consent not to be unreasonably withheld or delayed.\nNotwithstanding the above, Airbus may assign this NDA, upon notice in writing to the other Party, to a company controlled\nby Airbus.\nThis Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and\ndelivered will be an original, but all such counterparts will together constitute but one and the same instrument.\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.\nIN WITNESS WHEREOF the Parties have executed this NDA on the date first above written, in two (2) original copies.\nAIRBUS SAS\nacting in its own name and in the name and on behalf of the Airbus Companies\nName: /s/ Christophe Mourey\nTitle: Senior Vice President Contracts\nDELTA AIR LINES, INC.\nName: /s/ Gregory A. May\nTitle: Senior Vice President - Supply Chain Management and Fleet\nNDA BETWEEN DAL AND AIRBUS FOR A321NEO [***]\n[***] Confidential portion omitted and filed separately with the Commission Pursuant to a Request for Confidential Treatment.
+a4460113a76297d8670fa741a1cb2c46.pdf	effective_date jurisdiction party term	EX-99.(D)(4) 14 dex99d4.htm MUTUAL CONFIDENTAILITY AGREEMENT\nEXHIBIT 99(d)(4)\n[OPENWAVE LOGO]\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (the “Agreement”) is entered into and is effective as of February 28, 2002 (the “Effective Date”) by\nand between Openwave Systems Inc., on behalf of itself and its subsidiaries, located at 1400 Seaport Boulevard, Redwood City, CA 94063\n(“Openwave”), and SignalSoft Corporation, located at 1495 Canyon Boulevard, Boulder, CO (“Company”).\nWHEREAS, each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose certain Confidential\nInformation as further described in Section 1 below for the purpose of a potential business transaction (the “Purpose”).\nWHEREAS, in consideration of the disclosure of such information to Openwave and/or Company, Openwave and/or Company is willing to\nkeep such information confidential in accordance with the terms and conditions set forth in this Agreement.\nNOW, THEREFORE, Openwave and Company hereby agree as follows:\n1. Definition of Confidential Information.\n“Confidential Information” shall mean (i) all information disclosed in tangible form by the\nDisclosing Party and marked “confidential” or “proprietary” or which by its nature should be readily recognized as confidential or proprietary\ninformation of the disclosing party, and (ii) all information disclosed orally by the Disclosing Party and designated in writing as confidential or\nproprietary within two (2) weeks of the disclosure. Confidential Information may include, without limitation, computer programs, code, algorithms,\nnames and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and\nother technical, business, financial and product development plans, forecasts, strategies and information.\n2. Confidentiality Obligation. The Receiving Party agrees (i) to protect the Confidential Information by using the same degree of care,\nbut not less than a reasonable degree of care, to prevent the unauthorized dissemination or publication of the Confidential Information as the\nReceiving Party uses to protect its own confidential or proprietary information of a like nature and (ii) not to use the Confidential Information for\nany purpose other than to evaluate a potential business transaction between the parties. The Receiving Party shall limit access to the Disclosing\nParty’s Confidential Information to the Receiving Party’s employees and professional advisors who (i) have a need to know and have been notified\nthat such information is Confidential Information for the Purpose; and (ii) are under binding obligations of confidentiality no less restrictive than\nthose of this Agreement. The Receiving Party shall be responsible for any breaches by its employees and professional advisors of the Receiving\nParty’s obligations under this Agreement.\n3. Term. The Receiving Party’s obligation to protect Confidential Information hereunder shall expire three (3) years from the date of each\nsuch disclosure of Confidential Information, except when such Confidential Information disclosed by the Disclosing Party is source code, in which\ncase the Receiving Party’s obligations to protect such Confidential Information shall be perpetual.\n4. Exclusions. Confidential Information shall not include Confidential Information that: (i) is or becomes a matter of public knowledge\nthrough no fault of the Receiving Party; or (ii) was rightfully in the Receiving Party’s possession prior to receipt from the Disclosing Party as shown\nby the Receiving Party’s files and records immediately prior to the time of disclosure; or (iii) was rightfully disclosed to the Receiving Party by a\nthird party that lawfully and rightfully possesses such information and has no obligations of confidentiality; or (iv) is independently developed by the\nReceiving Party without use of or reference to the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential\nInformation pursuant to any statutory or regulatory authority or court order, provided the Disclosing Party is given prompt prior written notice of\nsuch requirement and the scope of such disclosure is limited to the extent possible.\n5. Ownership/Return of Materials. All Confidential Information, unless otherwise specified in writing, remains the property of the\nDisclosing Party. Upon written request by the Disclosing Party at any time, the Receiving Party shall: (i) promptly turn over to the Disclosing Party\nall Confidential Information of the Disclosing Party, all documents or media containing the Confidential Information, and any and all\n1\ncopies or extracts thereof, that the Receiving Party possesses or controls; or (ii) promptly destroy the Confidential Information, and any and all\ncopies or extracts thereof that the Receiving Party possesses or controls, and provide the Disclosing Party with written certification of such\ndestruction signed by an authorized representative of the Receiving Party.\n6. Equitable Relief. The Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential\nInformation, there may be no adequate remedy at law for any breach of its obligations. The Receiving Party further acknowledges that any such\nbreach may allow the Receiving Party or third parties to unfairly compete with the Disclosing Party resulting in irreparable harm to the Disclosing\nParty and, therefore, that upon any such breach or any threat thereof, the Disclosing Party shall be entitled to seek appropriate equitable relief,\nincluding but not limited to injunction in addition to whatever remedies it may have at law. The Receiving Party will notify the Disclosing Party in\nwriting immediately upon the occurrence of any such unauthorized release or other breach.\n7. Warranty. THE CONFIDENTIAL INFORMATION DISCLOSED UNDER THIS AGREEMENT IS DELIVERED “AS IS,” AND\nALL REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OR CONDITIONS FOR\nFITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NON-INFRINGEMENT ARE HEREBY DISCLAIMED .\n8. Export. Each party agrees that the export of encryption related information and encryption-enabled software from the United States may\nbe regulated by US law, and agree to comply with such laws and regulations.\n9. Notices. All notices required or permitted to be given under this Agreement shall be given in writing and shall be effective from the date\nsent by registered or certified mail, by hand, facsimile or overnight courier to the addresses of the parties set forth above, or such other address as\neither party shall have furnished to the other pursuant to this Section 9.\n10. Independent Development. The Disclosing Party understands that the Receiving Party may currently or in the future be developing\ninformation internally, or receiving information from other parties that may be similar to the Disclosing Party’s information. Accordingly, nothing in\nthis Agreement will be construed as a representation or inference that the Receiving Party will not develop products, or have products developed for\nit, that, without violation of this Agreement, compete with the products or systems contemplated by the Disclosing Party’s Confidential Information.\nFurther, Confidential Information as defined in Section 1 above shall not include the residuals resulting from access to such Confidential\nInformation. As used herein, residuals means information in intangible form which is unintentionally retained in the unaided memories of Receiving\nParty’s employees who have had access to the Disclosing Party’s Confidential Information. The foregoing shall not be deemed to grant to either\nparty a license under the Disclosing Party’s copyrights or patents.\n11 No Solicitation. Each of the parties agrees that for a period of 9 (nine) months from the date hereof, it shall not, and shall cause its\nemployees not to, solicit for employment or for independent consulting services any employee of such other party. The parties agree that a breach of\nthis Section 11 shall require as the sole and exclusive remedy, the payment of liquidated damages equal to 50% of the base salary of any employees\nhired in violation of this section. Each party also agrees that its rights under this Section 11 shall automatically terminate upon a change of control of\nsuch party (more than 50% change in the beneficial ownership of such party), cessation of the conduct of regular business by such party, or an event\nof liquidation of such party.\n12. Restriction Regarding Securities. Each of the parties agrees that it shall not purchase or sell any direct or derivative interest in the\ncommon stock of the other party for six months from the date hereof, or, if later, the date allowed by applicable securities laws.\n13. General. This Agreement supersedes all prior discussions and writings with respect to the subject matter hereof, and constitutes the\nentire agreement between the parties with respect to the subject matter hereof. No waiver or modification of this Agreement will be binding upon\neither party unless made in writing and signed by a duly authorized representative of each party and no failure or\n2\ndelay in enforcing any right will be deemed a waiver. Neither party may assign this Agreement, or its limited rights or obligations hereunder, to any\nthird party without the prior written consent of the other party. The parties understand that nothing herein requires either party to proceed with any\nproposed transaction or relationship in connection with which Confidential Information may be disclosed. In the event that any of the provisions of\nthis Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in\nfull force and effect. This Agreement shall be governed by the laws of the State of California, without regard to conflicts of law provisions. The\nheadings to the Sections of this Agreement are included merely for reference and shall not affect the meaning of the language included therein. This\nAgreement is written in the English language only, which language shall be controlling in all respects. This Agreement may be delivered by\nfacsimile and signed in counterparts, each of which shall be deemed an original and both of which together shall be considered as one fully executed\nagreement.\n3\nUnderstood and agreed:\nOPENWAVE SYSTEMS INC.\nSIGNALSOFT CORPORATION\nBy: /s/ DOUGLAS P. SOLOMON\nBy: /s/ ANDREW M. MURRAY\nSignature\nSignature\nName: Douglas P. Solomon\nName: Andrew M. Murray\nPrint or Type\nPrint or Type\nTitle: Associate General Counsel\nTitle: SVP, CFO\n4	EX-99.(D)(4) 14 dex99d4.htm MUTUAL CONFIDENTAILITY AGREEMENT\nEXHIBIT 99(d)(4)\n[OPENWAVE LOGO]\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (the “Agreement”) is entered into and is effective as of February 28, 2002 (the “Effective Date”) by\nand between Openwave Systems Inc., on behalf of itself and its subsidiaries, located at 1400 Seaport Boulevard, Redwood City, CA 94063\n(“Openwave”), and SignalSoft Corporation, located at 1495 Canyon Boulevard, Boulder, CO (“Company™).\nWHEREAS, each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose certain Confidential\nInformation as further described in Section 1 below for the purpose of a potential business transaction (the “Purpose”).\nWHEREAS, in consideration of the disclosure of such information to Openwave and/or Company, Openwave and/or Company is willing to\nkeep such information confidential in accordance with the terms and conditions set forth in this Agreement.\nNOW, THEREFORE, Openwave and Company hereby agree as follows:\n1. Definition of Confidential Information. “Confidential Information” shall mean (i) all information disclosed in tangible form by the\nDisclosing Party and marked “confidential” or “proprietary” or which by its nature should be readily recognized as confidential or proprietary\ninformation of the disclosing party, and (ii) all information disclosed orally by the Disclosing Party and designated in writing as confidential or\nproprietary within two (2) weeks of the disclosure. Confidential Information may include, without limitation, computer programs, code, algorithms,\nnames and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and\nother technical, business, financial and product development plans, forecasts, strategies and information.\n2. Confidentiality Obligation. The Receiving Party agrees (i) to protect the Confidential Information by using the same degree of care,\nbut not less than a reasonable degree of care, to prevent the unauthorized dissemination or publication of the Confidential Information as the\nReceiving Party uses to protect its own confidential or proprietary information of a like nature and (ii) not to use the Confidential Information for\nany purpose other than to evaluate a potential business transaction between the parties. The Receiving Party shall limit access to the Disclosing\nParty’s Confidential Information to the Receiving Party’s employees and professional advisors who (i) have a need to know and have been notified\nthat such information is Confidential Information for the Purpose; and (ii) are under binding obligations of confidentiality no less restrictive than\nthose of this Agreement. The Receiving Party shall be responsible for any breaches by its employees and professional advisors of the Receiving\nParty’s obligations under this Agreement.\n3. Term. The Receiving Party’s obligation to protect Confidential Information hereunder shall expire three (3) years from the date of each\nsuch disclosure of Confidential Information, except when such Confidential Information disclosed by the Disclosing Party is source code, in which\ncase the Receiving Party’s obligations to protect such Confidential Information shall be perpetual.\n4. Exclusions. Confidential Information shall not include Confidential Information that: (i) is or becomes a matter of public knowledge\nthrough no fault of the Receiving Party; or (ii) was rightfully in the Receiving Party’s possession prior to receipt from the Disclosing Party as shown\nby the Receiving Party’s files and records immediately prior to the time of disclosure; or (iii) was rightfully disclosed to the Receiving Party by a\nthird party that lawfully and rightfully possesses such information and has no obligations of confidentiality; or (iv) is independently developed by the\nReceiving Party without use of or reference to the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential\nInformation pursuant to any statutory or regulatory authority or court order, provided the Disclosing Party is given prompt prior written notice of\nsuch requirement and the scope of such disclosure is limited to the extent possible.\n5. Ownership/Return of Materials. All Confidential Information, unless otherwise specified in writing, remains the property of the\nDisclosing Party. Upon written request by the Disclosing Party at any time, the Receiving Party shall: (i) promptly turn over to the Disclosing Party\nall Confidential Information of the Disclosing Party, all documents or media containing the Confidential Information, and any and all\n1\ncopies or extracts thereof, that the Receiving Party possesses or controls; or (ii) promptly destroy the Confidential Information, and any and all\ncopies or extracts thereof that the Receiving Party possesses or controls, and provide the Disclosing Party with written certification of such\ndestruction signed by an authorized representative of the Receiving Party.\n6. Equitable Relief. The Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential\nInformation, there may be no adequate remedy at law for any breach of its obligations. The Receiving Party further acknowledges that any such\nbreach may allow the Receiving Party or third parties to unfairly compete with the Disclosing Party resulting in irreparable harm to the Disclosing\nParty and, therefore, that upon any such breach or any threat thereof, the Disclosing Party shall be entitled to seek appropriate equitable relief,\nincluding but not limited to injunction in addition to whatever remedies it may have at law. The Receiving Party will notify the Disclosing Party in\nwriting immediately upon the occurrence of any such unauthorized release or other breach.\n7. Warranty. THE CONFIDENTIAL INFORMATION DISCLOSED UNDER THIS AGREEMENT IS DELIVERED “AS IS,” AND\nALL REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OR CONDITIONS FOR\nFITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NON-INFRINGEMENT ARE HEREBY DISCLAIMED.\n8. Export. Each party agrees that the export of encryption related information and encryption-enabled software from the United States may\nbe regulated by US law, and agree to comply with such laws and regulations.\n9. Notices. All notices required or permitted to be given under this Agreement shall be given in writing and shall be effective from the date\nsent by registered or certified mail, by hand, facsimile or overnight courier to the addresses of the parties set forth above, or such other address as\neither party shall have furnished to the other pursuant to this Section 9.\n10. Independent Development. The Disclosing Party understands that the Receiving Party may currently or in the future be developing\ninformation internally, or receiving information from other parties that may be similar to the Disclosing Party’s information. Accordingly, nothing in\nthis Agreement will be construed as a representation or inference that the Receiving Party will not develop products, or have products developed for\nit, that, without violation of this Agreement, compete with the products or systems contemplated by the Disclosing Party’s Confidential Information.\nFurther, Confidential Information as defined in Section 1 above shall not include the residuals resulting from access to such Confidential\nInformation. As used herein, residuals means information in intangible form which is unintentionally retained in the unaided memories of Receiving\nParty’s employees who have had access to the Disclosing Party’s Confidential Information. The foregoing shall not be deemed to grant to either\nparty a license under the Disclosing Party’s copyrights or patents.\n11 No Solicitation. Each of the parties agrees that for a period of 9 (nine) months from the date hereof, it shall not, and shall cause its\nemployees not to, solicit for employment or for independent consulting services any employee of such other party. The parties agree that a breach of\nthis Section 11 shall require as the sole and exclusive remedy, the payment of liquidated damages equal to 50% of the base salary of any employees\nhired in violation of this section. Each party also agrees that its rights under this Section 11 shall automatically terminate upon a change of control of\nsuch party (more than 50% change in the beneficial ownership of such party), cessation of the conduct of regular business by such party, or an event\nof liquidation of such party.\n12. Restriction Regarding Securities. Each of the parties agrees that it shall not purchase or sell any direct or derivative interest in the\ncommon stock of the other party for six months from the date hereof, or, if later, the date allowed by applicable securities laws.\n13. General. This Agreement supersedes all prior discussions and writings with respect to the subject matter hereof, and constitutes the\nentire agreement between the parties with respect to the subject matter hereof. No waiver or modification of this Agreement will be binding upon\neither party unless made in writing and signed by a duly authorized representative of each party and no failure or\n2\ndelay in enforcing any right will be deemed a waiver. Neither party may assign this Agreement, or its limited rights or obligations hereunder, to any\nthird party without the prior written consent of the other party. The parties understand that nothing herein requires either party to proceed with any\nproposed transaction or relationship in connection with which Confidential Information may be disclosed. In the event that any of the provisions of\nthis Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in\nfull force and effect. This Agreement shall be governed by the laws of the State of California, without regard to conflicts of law provisions. The\nheadings to the Sections of this Agreement are included merely for reference and shall not affect the meaning of the language included therein. This\nAgreement is written in the English language only, which language shall be controlling in all respects. This Agreement may be delivered by\nfacsimile and signed in counterparts, each of which shall be deemed an original and both of which together shall be considered as one fully executed\nagreement.\nUnderstood and agreed:\nOPENWAVE SYSTEMS INC.\nBy:__/s/ DOUGLAS P. SOLOMON Signature\nName:__Douglas P. Solomon Print or Type\nTitle:__Associate General Counsel SIGNALSOFT CORPORATION\nBy:__ /s/ ANDREW M. MURRAY\nSignature\nName:__Andrew M. Murray\nPrint or Type\nTitle:__SVP, CFO	EX-99.(D)(4) 14 dex99d4.htm MUTUAL CONFIDENTAILITY AGREEMENT\nEXHIBIT 99(d)(4)\n[OPENWAVE LOGO]\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (the "Agreement") is entered into and is effective as of February 28, 2002 (the "Effective Date") by\nand between Openwave Systems Inc., on behalf of itself and its subsidiaries, located at 1400 Seaport Boulevard, Redwood City, CA 94063\n("Openwave"), and Signalsoft Corporation, located at 1495 Canyon Boulevard, Boulder, CO ("Company").\nWHEREAS, each party (the "Receiving Party") understands that the other party (the "Disclosing Party") may disclose certain Confidential\nInformation as further described in Section 1 below for the purpose of a potential business transaction (the "Purpose").\nWHEREAS, in consideration of the disclosure of such information to Openwave and/or Company, Openwave and/or Company is willing\nto\nkeep such information confidential in accordance with the terms and conditions set forth in this Agreement.\nNOW, THEREFORE, Openwave and Company hereby agree as follows:\n1. Definition of Confidential Information. "Confidentia Information" shall mean (i) all information disclosed in tangible form by the\nDisclosing Party and marked "confidential" or "proprietary" or which by its nature should be readily recognized as confidential or proprietary\ninformation of the disclosing party, and (ii) all information disclosed orally by the Disclosing Party and designated in writing as confidential or\nproprietary within two (2) weeks of the disclosure. Confidential Information may include, without limitation, computer programs, code, algorithms,\nnames and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and\nother technical, business, financial and product development plans, forecasts, strategies and information.\n2. Confidentiality Obligation. The Receiving Party agrees (i) to protect the Confidential Information by using the same degree of care,\nbut not less than a reasonable degree of care, to prevent the unauthorized dissemination or publication of the Confidential Information as the\nReceiving Party uses to protect its own confidential or proprietary information of a like nature and (ii) not to use the Confidential Information for\nany purpose other than to evaluate a potential business transaction between the parties. The Receiving Party shall limit access to the Disclosing\nParty's Confidential Information to the Receiving Party's employees and professional advisors who (i) have a need to know and have been notified\nthat such information is Confidential Information for the Purpose; and (ii) are under binding obligations of confidentiality no less restrictive than\nthose of this Agreement. The Receiving Party shall be responsible for any breaches by its employees and professional advisors of the Receiving\nParty's obligations under this Agreement.\n3. Term. The Receiving Party's obligation to protect Confidential Information hereunder shall expire three (3) years from the date of each\nsuch disclosure of Confidential Information, except when such Confidential Information disclosed by the Disclosing Party is source code, in which\ncase the Receiving Party's obligations to protect such Confidential Information shall be perpetual.\n4.\nExclusions. Confidential Information shall not include Confidential Information that: (i) is or becomes a matter of public knowledge\nthrough no fault of the Receiving Party; or (ii) was rightfully in the Receiving Party's possession prior to receipt from the Disclosing Party as shown\nby the Receiving Party's files and records immediately prior to the time of disclosure; or (iii) was rightfully disclosed to the Receiving Party by a\nthird\nparty\nthat\nlawfully\nand\nrightfully\npossesses\nsuch\ninformation\nand\nhas\nno\nobligations\nof\nconfidentiality;\nor\n(iv)\nis\nindependently\ndeveloped\nby\nthe\nReceiving Party without use of or reference to the Disclosing Party's Confidential Information. The Receiving Party may disclose Confidential\nInformation pursuant to any statutory or regulatory authority or court order, provided the Disclosing Party is given prompt prior written notice of\nsuch requirement and the scope of such disclosure is limited to the extent possible.\n5. Ownership/Return of Materials. All Confidential Information, unless otherwise specified in writing, remains the property of the\nDisclosing Party. Upon written request by the Disclosing Party at any time, the Receiving Party shall: (i) promptly turn over to the Disclosing Party\nall Confidential Information of the Disclosing Party, all documents or media containing the Confidential Information, and any and all\n1\ncopies or extracts thereof, that the Receiving Party possesses or controls; or (ii) promptly destroy the Confidential Information, and any and all\ncopies or extracts thereof that the Receiving Party possesses or controls, and provide the Disclosing Party with written certification of such\ndestruction signed by an authorized representative of the Receiving Party.\n6. Equitable Relief. The Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party's Confidentia\nInformation,\nthere\nmay\nbe\nno\nadequate\nremedy\nat\nlaw\nfor\nany\nbreach\nof\nits\nobligations.\nThe\nReceiving\nParty\nfurther\nacknowledges\nthat\nany\nsuch\nbreach may allow the Receiving Party or third parties to unfairly compete with the Disclosing Party resulting in irreparable harm to the Disclosing\nParty and, therefore, that upon any such breach or any threat thereof, the Disclosing Party shall be entitled to seek appropriate equitable relief,\nincluding but not limited to injunction in addition to whatever remedies it may have at law. The Receiving Party will notify the Disclosing Party in\nwriting immediately upon the occurrence of any such unauthorized release or other breach.\n7.\nWarranty. THE CONFIDENTIAL INFORMATION DISCLOSED UNDER THIS AGREEMENT IS DELIVERED "AS IS," AND\nALL REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OR CONDITIONS FOR\nFITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NON-INFRINGEMENT ARE HEREBY DISCLAIMED.\n8. Export. Each party agrees that the export of encryption related information and encryption-enabled software from the United States may\nbe regulated by US law, and agree to comply with such laws and regulations.\n9. Notices. All notices required or permitted to be given under this Agreement shall be given in writing and shall be effective from the date\nsent by registered or certified mail, by hand, facsimile or overnight courier to the addresses of the parties set forth above, or such other address as\neither party shall have furnished to the other pursuant to this Section 9.\n10. Independent Development. The Disclosing Party understands that the Receiving Party may currently or in the future be developing\ninformation internally, or receiving information from other parties that may be similar to the Disclosing Party's information. Accordingly, nothing in\nthis Agreement will be construed as a representation or inference that the Receiving Party will not develop products, or have products developed for\nit, that, without violation of this Agreement, compete with the products or systems contemplated by the Disclosing Party's Confidential Information.\nFurther, Confidential Information as defined in Section 1 above shall not include the residuals resulting from access to such Confidential\nInformation. As used herein, residuals means information in intangible form which is unintentionally retained in the unaided memories of Receiving\nParty's employees who have had access to the Disclosing Party's Confidential Information. The foregoing shall not be deemed to grant to either\nparty a license under the Disclosing Party's copyrights or patents.\n11 No Solicitation. Each of the parties agrees that for a period of 9 (nine) months from the date hereof, it shall not, and shall cause its\nemployees not to, solicit for employment or for independent consulting services any employee of such other party. The parties agree that a breach of\nthis Section 11 shall require as the sole and exclusive remedy, the payment of liquidated damages equal to 50% of the base salary of any employees\nhired in violation of this section. Each party also agrees that its rights under this Section 11 shall automatically terminate upon a change of control of\nsuch party (more than 50% change in the beneficial ownership of such party), cessation of the conduct of regular business by such party, or an event\nof liquidation of such party.\n12. Restriction Regarding Securities. Each of the parties agrees that it shall not purchase or sell any direct or derivative interest in the\ncommon stock of the other party for six months from the date hereof, or, if later, the date allowed by applicable securities laws.\n13. General. This Agreement supersedes all prior discussions and writings with respect to the subject matter hereof, and constitutes the\nentire agreement between the parties with respect to the subject matter hereof. No waiver or modification of this Agreement will be binding upon\neither party unless made in writing and signed by a duly authorized representative of each party and no failure or\n2\ndelay in enforcing any right will be deemed a waiver. Neither party may assign this Agreement, or its limited rights or obligations hereunder, to any\nthird party without the prior written consent of the other party. The parties understand that nothing herein requires either party to proceed with any\nproposed transaction or relationship in connection with which Confidential Information may be disclosed. In the event that any of the provisions of\nthis Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in\nfull force and effect. This Agreement shall be governed by the laws of the State of California, without regard to conflicts of law provisions. The\nheadings to the Sections of this Agreement are included merely for reference and shall not affect the meaning of the language included therein. This\nAgreement is written in the English language only, which language shall be controlling in all respects. This Agreement may be delivered by\nfacsimile and signed in counterparts, each of which shall be deemed an original and both of which together shall be considered as one fully executed\nagreement.\n3\nUnderstood and agreed:\nOPENWAVE SYSTEMS INC.\nSIGNALSOFT CORPORATION\nBy: /s/ DOUGLAS P. SOLOMON\nBy: /s/ ANDREW M. MURRAY\nSignature\nSignature\nName: Douglas P. Solomon\nName: Name: Andr Andrew M. Murray.\nPrint or Type\nPrint or Type\nTitle: Associate General Counsel\nTitle: SVP, CFO\n4	EX-99.(D)(4) 14 dex99d4.htm MUTUAL CONFIDENTAILITY AGREEMENT\nEXHIBIT 99(d)(4)\n[OPENWAVE LOGO]\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (the “Agreement”) is entered into and is effective as of February 28, 2002 (the “Effective Date”) by\nand between Openwave Systems Inc., on behalf of itself and its subsidiaries, located at 1400 Seaport Boulevard, Redwood City, CA 94063\n(“Openwave”), and SignalSoft Corporation, located at 1495 Canyon Boulevard, Boulder, CO (“Company”).\nWHEREAS, each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose certain Confidential\nInformation as further described in Section 1 below for the purpose of a potential business transaction (the “Purpose”).\nWHEREAS, in consideration of the disclosure of such information to Openwave and/or Company, Openwave and/or Company is willing to\nkeep such information confidential in accordance with the terms and conditions set forth in this Agreement.\nNOW, THEREFORE, Openwave and Company hereby agree as follows:\n1. Definition of Confidential Information.\n“Confidential Information” shall mean (i) all information disclosed in tangible form by the\nDisclosing Party and marked “confidential” or “proprietary” or which by its nature should be readily recognized as confidential or proprietary\ninformation of the disclosing party, and (ii) all information disclosed orally by the Disclosing Party and designated in writing as confidential or\nproprietary within two (2) weeks of the disclosure. Confidential Information may include, without limitation, computer programs, code, algorithms,\nnames and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and\nother technical, business, financial and product development plans, forecasts, strategies and information.\n2. Confidentiality Obligation. The Receiving Party agrees (i) to protect the Confidential Information by using the same degree of care,\nbut not less than a reasonable degree of care, to prevent the unauthorized dissemination or publication of the Confidential Information as the\nReceiving Party uses to protect its own confidential or proprietary information of a like nature and (ii) not to use the Confidential Information for\nany purpose other than to evaluate a potential business transaction between the parties. The Receiving Party shall limit access to the Disclosing\nParty’s Confidential Information to the Receiving Party’s employees and professional advisors who (i) have a need to know and have been notified\nthat such information is Confidential Information for the Purpose; and (ii) are under binding obligations of confidentiality no less restrictive than\nthose of this Agreement. The Receiving Party shall be responsible for any breaches by its employees and professional advisors of the Receiving\nParty’s obligations under this Agreement.\n3. Term. The Receiving Party’s obligation to protect Confidential Information hereunder shall expire three (3) years from the date of each\nsuch disclosure of Confidential Information, except when such Confidential Information disclosed by the Disclosing Party is source code, in which\ncase the Receiving Party’s obligations to protect such Confidential Information shall be perpetual.\n4. Exclusions. Confidential Information shall not include Confidential Information that: (i) is or becomes a matter of public knowledge\nthrough no fault of the Receiving Party; or (ii) was rightfully in the Receiving Party’s possession prior to receipt from the Disclosing Party as shown\nby the Receiving Party’s files and records immediately prior to the time of disclosure; or (iii) was rightfully disclosed to the Receiving Party by a\nthird party that lawfully and rightfully possesses such information and has no obligations of confidentiality; or (iv) is independently developed by the\nReceiving Party without use of or reference to the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential\nInformation pursuant to any statutory or regulatory authority or court order, provided the Disclosing Party is given prompt prior written notice of\nsuch requirement and the scope of such disclosure is limited to the extent possible.\n5. Ownership/Return of Materials. All Confidential Information, unless otherwise specified in writing, remains the property of the\nDisclosing Party. Upon written request by the Disclosing Party at any time, the Receiving Party shall: (i) promptly turn over to the Disclosing Party\nall Confidential Information of the Disclosing Party, all documents or media containing the Confidential Information, and any and all\n1\ncopies or extracts thereof, that the Receiving Party possesses or controls; or (ii) promptly destroy the Confidential Information, and any and all\ncopies or extracts thereof that the Receiving Party possesses or controls, and provide the Disclosing Party with written certification of such\ndestruction signed by an authorized representative of the Receiving Party.\n6. Equitable Relief. The Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential\nInformation, there may be no adequate remedy at law for any breach of its obligations. The Receiving Party further acknowledges that any such\nbreach may allow the Receiving Party or third parties to unfairly compete with the Disclosing Party resulting in irreparable harm to the Disclosing\nParty and, therefore, that upon any such breach or any threat thereof, the Disclosing Party shall be entitled to seek appropriate equitable relief,\nincluding but not limited to injunction in addition to whatever remedies it may have at law. The Receiving Party will notify the Disclosing Party in\nwriting immediately upon the occurrence of any such unauthorized release or other breach.\n7. Warranty. THE CONFIDENTIAL INFORMATION DISCLOSED UNDER THIS AGREEMENT IS DELIVERED “AS IS,” AND\nALL REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OR CONDITIONS FOR\nFITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NON-INFRINGEMENT ARE HEREBY DISCLAIMED .\n8. Export. Each party agrees that the export of encryption related information and encryption-enabled software from the United States may\nbe regulated by US law, and agree to comply with such laws and regulations.\n9. Notices. All notices required or permitted to be given under this Agreement shall be given in writing and shall be effective from the date\nsent by registered or certified mail, by hand, facsimile or overnight courier to the addresses of the parties set forth above, or such other address as\neither party shall have furnished to the other pursuant to this Section 9.\n10. Independent Development. The Disclosing Party understands that the Receiving Party may currently or in the future be developing\ninformation internally, or receiving information from other parties that may be similar to the Disclosing Party’s information. Accordingly, nothing in\nthis Agreement will be construed as a representation or inference that the Receiving Party will not develop products, or have products developed for\nit, that, without violation of this Agreement, compete with the products or systems contemplated by the Disclosing Party’s Confidential Information.\nFurther, Confidential Information as defined in Section 1 above shall not include the residuals resulting from access to such Confidential\nInformation. As used herein, residuals means information in intangible form which is unintentionally retained in the unaided memories of Receiving\nParty’s employees who have had access to the Disclosing Party’s Confidential Information. The foregoing shall not be deemed to grant to either\nparty a license under the Disclosing Party’s copyrights or patents.\n11 No Solicitation. Each of the parties agrees that for a period of 9 (nine) months from the date hereof, it shall not, and shall cause its\nemployees not to, solicit for employment or for independent consulting services any employee of such other party. The parties agree that a breach of\nthis Section 11 shall require as the sole and exclusive remedy, the payment of liquidated damages equal to 50% of the base salary of any employees\nhired in violation of this section. Each party also agrees that its rights under this Section 11 shall automatically terminate upon a change of control of\nsuch party (more than 50% change in the beneficial ownership of such party), cessation of the conduct of regular business by such party, or an event\nof liquidation of such party.\n12. Restriction Regarding Securities. Each of the parties agrees that it shall not purchase or sell any direct or derivative interest in the\ncommon stock of the other party for six months from the date hereof, or, if later, the date allowed by applicable securities laws.\n13. General. This Agreement supersedes all prior discussions and writings with respect to the subject matter hereof, and constitutes the\nentire agreement between the parties with respect to the subject matter hereof. No waiver or modification of this Agreement will be binding upon\neither party unless made in writing and signed by a duly authorized representative of each party and no failure or\n2\ndelay in enforcing any right will be deemed a waiver. Neither party may assign this Agreement, or its limited rights or obligations hereunder, to any\nthird party without the prior written consent of the other party. The parties understand that nothing herein requires either party to proceed with any\nproposed transaction or relationship in connection with which Confidential Information may be disclosed. In the event that any of the provisions of\nthis Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining portions hereof shall remain in\nfull force and effect. This Agreement shall be governed by the laws of the State of California, without regard to conflicts of law provisions. The\nheadings to the Sections of this Agreement are included merely for reference and shall not affect the meaning of the language included therein. This\nAgreement is written in the English language only, which language shall be controlling in all respects. This Agreement may be delivered by\nfacsimile and signed in counterparts, each of which shall be deemed an original and both of which together shall be considered as one fully executed\nagreement.\n3\nUnderstood and agreed:\nOPENWAVE SYSTEMS INC.\nSIGNALSOFT CORPORATION\nBy: /s/ DOUGLAS P. SOLOMON\nBy: /s/ ANDREW M. MURRAY\nSignature\nSignature\nName: Douglas P. Solomon\nName: Andrew M. Murray\nPrint or Type\nPrint or Type\nTitle: Associate General Counsel\nTitle: SVP, CFO\n4
+a5328b08888c6b137f624e0478c233e5.pdf	effective_date jurisdiction party term	Exhibit D\nMutual Nondisclosure Agreement\nThis MUTUAL Non-Disclosure Agreement (the “Mutual NDA”), dated as of July 29, 2013 (the “Effective Date”), by and among Cytori\nTherapeutics, Inc., a Delaware corporation with its principal place of business located at 3020 Callan Road, San Diego, CA 92121, U.S.A.\n(“Cytori”), and BIMINI TECHNOLOGIES LLC, a corporation with its principal office at 3020 Callan Road, San Diego, CA 92121 (“Bimini”).\nCytori and Bimini may each individually be referred to herein as a “Party” and collectively as the “Parties,” as the context may require.\nRECITALS\nWHEREAS, Cytori has acquired, developed and possesses, through the expenditure of considerable time, effort and money, certain proprietary\nproducts and intellectual property rights (including medical devices, techniques and therapies, know-how, patents, patent applications and\ntechnical trade secrets) in connection with regenerative cell technology, cell/tissue banking technology, and adipose tissue processing and\npreparation technology used to carry out regenerative cell therapies and autologous fat transplantation (“Cytori Technology”); and\nWHEREAS, Cytori and Bimini have entered into the SALE AND EXCLUSIVE LICENSE / SUPPLY AGREEMENT by and between Cytori\nand Bimini, dated as of July 29, 2013 (the “SLSA”);\nWHEREAS, on and subject to the terms and conditions set forth herein, and in accordance with the SLSA, the Parties desire to exchange\nconfidential information and materials with each other (from time to time in connection with the manufacturing and supply of the Puregraft\nProducts and Celution Products (as defined in the SLSA).\nWHEREAS, Cytori and Bimini are willing to disclose and receive such confidential information and materials under the terms and conditions set\nforth in this Mutual NDA.\nNOW, THEREFORE, in consideration of the foregoing, the mutual promises herein contained, and for other good and valuable consideration, the\nreceipt and adequacy of which are acknowledged, the Parties agree as follows:\n1) Definitions.\n1.1\n“Confidential Information” shall mean (a) any information disclosed by or on behalf of one party (“Disclosing Party”) to another party\n(“Receiving Party”), marked as confidential if in written (including electronic) form, or if in oral form, if followed by a writing confirming\nthat the information is “Confidential” within thirty (30) business days after oral disclosure, (b) any information, whether or not such\nmaterials are marked or confirmed as confidential, that is treated as confidential by the Disclosing Party, and is reasonably understood to be\nthe Disclosing Party’s confidential information, and (c) information designated as “Technology & Source Codes in Escrow” (as defined in\nthe SLSA), including but not limited to information related to the Celution Products manufacturing technology and software codes as well\nas the PureGraft Product manufacturing technology. For the avoidance of doubt, “Confidential Information” shall\nalso include, without limitation, financial or business information of the Parties, tangible materials containing Confidential Information,\nsuch as, among other things, technical information, written or printed documents, processes and raw material reduced to formulae, and\ncomputer print-outs, disks, memory devices or tapes, whether machine or user readable; objects of a proprietary nature, including, without\nlimitation, specifications, biochemical and biological materials, reagents, samples, models, and prototypes, regardless of whether such\nConfidential Information is related to the Puregraft and/or Cytori Product(s) (as defined in the SLSA), or any matter relating to this Mutual\nNDA; and any proprietary information of a third party which has been entrusted to the Disclosing Party.\n1.2\n“Affiliate” shall mean, as to any Party, any Person that, directly or indirectly, controls, or is controlled by, or is under common control with,\nsuch Party, where “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means (a) the\nbeneficial ownership of fifty percent (50%) or more of the outstanding voting securities of a Party, or (b) the possession, directly or\nindirectly, of the power to direct or cause the direction of management or policies of a Party, whether through the ownership of securities or\npartnership or other ownership interests, by contract or otherwise.\n2) Obligations.\n2.1 The Receiving Party shall hold in confidence and not use or disclose (except solely as permitted in Paragraph 4, below, and subject to the\nterms and conditions of Paragraph 4) Confidential Information of the Disclosing Party for any purposes other than those set forth in the\nSLSA (the “Purpose”). The Receiving Party shall treat the Confidential Information of the Disclosing Party as it would its own proprietary\ninformation, and shall take all reasonable precautions to prevent the disclosure of the Disclosing Party’s Confidential Information to any\nthird party, other than an Affiliate (as defined in the SLSA) of the Receiving Party which agrees to also be bound by this Mutual NDA,\nwithout the prior written consent of the Disclosing Party.\n2.2 The rights and obligations set forth herein shall commence on the Effective Date and shall continue in full force and effect for the duration\nof the term of the SLSA, unless earlier terminated as provided per the termination provisions in the SLSA. In such case of earlier\ntermination, such rights and obligations set forth herein shall expire seven (7) years from the date of termination. However, such rights and\nobligations shall run in perpetuity for information designated as “Trade Secret” by the Disclosing Party at the time of disclosure.\n3) Exceptions.\n3.1 Each Party shall be prospectively relieved of any and all obligations under Paragraph 2 of this Mutual NDA regarding information of\nthe Disclosing Party which:\n(a) is or becomes a part of the public domain through no fault of the Receiving Party or any party to whom the Receiving Party\nhas disclosed the information pursuant to Paragraph 4, below; or\n(b) the Receiving Party can demonstrate was in its rightful possession, without a restriction on use or disclosure, prior to receipt of\nthe information from the Disclosing Party or an entity acting on its behalf; or\n(c)\nthe Receiving Party can demonstrate was rightfully received from a third party without a restriction on use or disclosure; or\n(d) the Receiving Party can demonstrate by written evidence was independently developed by the Receiving Party without access\nto or use of (directly or indirectly) Confidential Information of the Disclosing Party; or\n(e) is required to be, and is, disclosed in response to a valid order from a judicial or administrative authority; provided, however,\nthat the Receiving Party shall promptly notify the Disclosing Party upon its receipt of such order, shall use commercially\nreasonable efforts to limit disclosure, and shall make commercially reasonable efforts to obtain confidential treatment or a\nprotective order for the disclosure so ordered, and prior to such disclosure to permit the Disclosing Party to oppose same by\nappropriate legal action.\n3.2 Confidential Information that is disclosed in accordance with this Mutual NDA shall not be deemed to be in the public domain\nmerely because any part of the Confidential Information is embodied in general disclosures, or because individual features,\ncomponents or combinations of the Confidential Information or portions thereof are now or become known to the public.\n4) Permitted Disclosure to Representatives. The Receiving Party shall disclose the Disclosing Party’s Confidential Information (a) only to its\nemployees, agents, consultants or independent contractors (the “Representatives”) on a “need to know” basis and solely in furtherance of\nthe Purpose; and (b) only if each such Representative shall have first entered into a written agreement with the Receiving Party whereby\nsuch Representative agrees to be bound by similar or more stringent obligations of nonuse and nondisclosure pertaining to the Confidential\nInformation as those imposed on the Receiving Party under this Mutual NDA. The Receiving Party shall ensure that such Representatives\ncomply with such obligations.\n5) Return or Destruction of Confidential Information. Upon the written request of the Disclosing Party, the Receiving Party shall return or\ndestroy all copies of the Confidential Information of the Disclosing Party; provided however, that the Receiving Party may retain one copy\nof such Confidential Information in its legal files for archival/compliance purposes only.\n6) No Other Rights. Nothing herein shall be construed (a) to grant to the Receiving Party any express or implied option, license or other right,\ntitle or interest in or ownership to the Confidential Information of the Disclosing Party; (b) to grant to the Receiving Party any option,\nlicense or right under any other intellectual property rights of the Disclosing Party; or (c) to obligate a Party to enter into any additional\nagreement granting any of the foregoing, by implication or otherwise.\n7) Remedy. The Receiving Party acknowledges and agrees that, due to the unique nature of the Confidential Information of the Disclosing\nParty, any unauthorized disclosure or use of the Disclosing Party’s Confidential Information may cause great or irreparable harm to the\nDisclosing Party, for which damages would not afford an adequate remedy. The Receiving Party further agrees that the Disclosing Party\nshall therefore have the right to seek and to obtain immediate temporary, preliminary and/or permanent injunctive relief, without any\nrequirement to post a bond or other security, in addition to any other rights and remedies it may have at law or in equity.\n8) Waiver. A Party’s failure to require any other Party to comply with any provision of this Mutual NDA shall not be deemed a waiver of such\nprovision or any other provision of this Mutual NDA.\n9) Amendment; Severability. Any modification to or waiver of this Mutual NDA must be made in writing and signed by all Parties, or else it\nshall not be effective. If any court of competent jurisdiction determines that any provision of this Mutual NDA is partially or wholly\nunenforceable under applicable law, such provision shall be construed or reformed so as to render it enforceable to the maximum extent\npermitted by applicable law, and the remaining provisions of this Mutual NDA shall remain in full force and effect.\n10) Entire Understanding. This Mutual NDA shall constitute the entire understanding by and among the Parties with respect to the subject\nmatter hereof, and any prior less restrictive oral and written understandings and agreements regarding Confidential Information are hereby\nsuperseded with respect to any disclosures of Confidential Information after the Effective Date. To the extent any previous non-disclosure\nor non-use agreement among the Parties, or between any two Parties, is more stringent than, or is equally stringent as, this Mutual NDA in\nany regard, then in that regard it shall remain effective in addition to the corresponding provisions of this Mutual NDA.\n11) Governing Law. This Mutual NDA shall be construed and interpreted in accordance with the laws of the State of New York, without regard\nto its choice of law principles.\n[The remainder of this page left intentionally blank]\nIN WITNESS WHEREOF, the Parties by their duly authorized representatives have caused this Mutual Non-Disclosure Agreement to be\nexecuted as of the Effective Date.\nCYTORI THERAPEUTICS, INC\nBIMINI TECHNOLOGIES LLC\nBy: /s/ Christopher J. Calhoun\nBy: /s/ Bradford A. Conlan\nName: Christopher J. Calhoun\nName: Bradford A. Conlan\nTitle: Chief Executive Officer\nTitle: Chief Executive Officer\nDate: July 29, 2013\nDate: July 29, 2013	Exhibit D\nMutual Nondisclosure Agreement\nThis MUTUAL Non-Disclosure Agreement (the “Mutual NDA”), dated as of July 29, 2013 (the “Effective Date”), by and among Cytori\nTherapeutics, Inc., a Delaware corporation with its principal place of business located at 3020 Callan Road, San Diego, CA 92121, U.S.A.\n(“Cytori”), and BIMINI TECHNOLOGIES LLC, a corporation with its principal office at 3020 Callan Road, San Diego, CA 92121 (“Bimini”).\nCytori and Bimini may each individually be referred to herein as a “Party” and collectively as the “Parties,” as the context may require.\nRECITALS\nWHEREAS, Cytori has acquired, developed and possesses, through the expenditure of considerable time, effort and money, certain proprietary\nproducts and intellectual property rights (including medical devices, techniques and therapies, know-how, patents, patent applications and\ntechnical trade secrets) in connection with regenerative cell technology, cell/tissue banking technology, and adipose tissue processing and\npreparation technology used to carry out regenerative cell therapies and autologous fat transplantation (“Cytori Technology”); and\nWHEREAS, Cytori and Bimini have entered into the SALE AND EXCLUSIVE LICENSE / SUPPLY AGREEMENT by and between Cytori\nand Bimini, dated as of July 29, 2013 (the “SLSA”);\nWHEREAS, on and subject to the terms and conditions set forth herein, and in accordance with the SLSA, the Parties desire to exchange\nconfidential information and materials with each other (from time to time in connection with the manufacturing and supply of the Puregraft\nProducts and Celution Products (as defined in the SLSA).\nWHEREAS, Cytori and Bimini are willing to disclose and receive such confidential information and materials under the terms and conditions set\nforth in this Mutual NDA.\nNOW, THEREFORE, in consideration of the foregoing, the mutual promises herein contained, and for other good and valuable consideration, the\nreceipt and adequacy of which are acknowledged, the Parties agree as follows:\n1)  Definitions.\n1.1 “Confidential Information” shall mean (a) any information disclosed by or on behalf of one party (“Disclosing Party”) to another party\n(“Receiving Party”), marked as confidential if in written (including electronic) form, or if in oral form, if followed by a writing confirming\nthat the information is “Confidential” within thirty (30) business days after oral disclosure, (b) any information, whether or not such\nmaterials are marked or confirmed as confidential, that is treated as confidential by the Disclosing Party, and is reasonably understood to be\nthe Disclosing Party’s confidential information, and (c) information designated as “Technology & Source Codes in Escrow” (as defined in\nthe SLSA), including but not limited to information related to the Celution Products manufacturing technology and software codes as well\nas the PureGraft Product manufacturing technology. For the avoidance of doubt, “Confidential Information” shall\n1.2\n2)\n2.1\n2.2\n3)\nalso include, without limitation, financial or business information of the Parties, tangible materials containing Confidential Information,\nsuch as, among other things, technical information, written or printed documents, processes and raw material reduced to formulae, and\ncomputer print-outs, disks, memory devices or tapes, whether machine or user readable; objects of a proprietary nature, including, without\nlimitation, specifications, biochemical and biological materials, reagents, samples, models, and prototypes, regardless of whether such\nConfidential Information is related to the Puregraft and/or Cytori Product(s) (as defined in the SLSA), or any matter relating to this Mutual\nNDA; and any proprietary information of a third party which has been entrusted to the Disclosing Party.\n“Affiliate” shall mean, as to any Party, any Person that, directly or indirectly, controls, or is controlled by, or is under common control with,\nsuch Party, where “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means (a) the\nbeneficial ownership of fifty percent (50%) or more of the outstanding voting securities of a Party, or (b) the possession, directly or\nindirectly, of the power to direct or cause the direction of management or policies of a Party, whether through the ownership of securities or\npartnership or other ownership interests, by contract or otherwise.\nObligations.\nThe Receiving Party shall hold in confidence and not use or disclose (except solely as permitted in Paragraph 4, below, and subject to the\nterms and conditions of Paragraph 4) Confidential Information of the Disclosing Party for any purposes other than those set forth in the\nSLSA (the “Purpose”). The Receiving Party shall treat the Confidential Information of the Disclosing Party as it would its own proprietary\ninformation, and shall take all reasonable precautions to prevent the disclosure of the Disclosing Party’s Confidential Information to any\nthird party, other than an Affiliate (as defined in the SLSA) of the Receiving Party which agrees to also be bound by this Mutual NDA,\nwithout the prior written consent of the Disclosing Party.\nThe rights and obligations set forth herein shall commence on the Effective Date and shall continue in full force and effect for the duration\nof the term of the SLSA, unless earlier terminated as provided per the termination provisions in the SLSA. In such case of earlier\ntermination, such rights and obligations set forth herein shall expire seven (7) years from the date of termination. However, such rights and\nobligations shall run in perpetuity for information designated as “Trade Secret” by the Disclosing Party at the time of disclosure.\nExceptions.\n3.1 Each Party shall be prospectively relieved of any and all obligations under Paragraph 2 of this Mutual NDA regarding information of\nthe Disclosing Party which:\n(a)  isorbecomes a part of the public domain through no fault of the Receiving Party or any party to whom the Receiving Party\nhas disclosed the information pursuant to Paragraph 4, below; or\n(b)  the Receiving Party can demonstrate was in its rightful possession, without a restriction on use or disclosure, prior to receipt of\nthe information from the Disclosing Party or an entity acting on its behalf; or\n4)\n5)\n6)\n7)\n(c)  the Receiving Party can demonstrate was rightfully received from a third party without a restriction on use or disclosure; or\n(d)  the Receiving Party can demonstrate by written evidence was independently developed by the Receiving Party without access\nto or use of (directly or indirectly) Confidential Information of the Disclosing Party; or\n(e)  isrequired to be, and is, disclosed in response to a valid order from a judicial or administrative authority; provided, however,\nthat the Receiving Party shall promptly notify the Disclosing Party upon its receipt of such order, shall use commercially\nreasonable efforts to limit disclosure, and shall make commercially reasonable efforts to obtain confidential treatment or a\nprotective order for the disclosure so ordered, and prior to such disclosure to permit the Disclosing Party to oppose same by\nappropriate legal action.\n3.2 Confidential Information that is disclosed in accordance with this Mutual NDA shall not be deemed to be in the public domain\nmerely because any part of the Confidential Information is embodied in general disclosures, or because individual features,\ncomponents or combinations of the Confidential Information or portions thereof are now or become known to the public.\nPermitted Disclosure to Representatives. The Receiving Party shall disclose the Disclosing Party’s Confidential Information (a) only to its\nemployees, agents, consultants or independent contractors (the “Representatives”) on a “need to know” basis and solely in furtherance of\nthe Purpose; and (b) only if each such Representative shall have first entered into a written agreement with the Receiving Party whereby\nsuch Representative agrees to be bound by similar or more stringent obligations of nonuse and nondisclosure pertaining to the Confidential\nInformation as those imposed on the Receiving Party under this Mutual NDA. The Receiving Party shall ensure that such Representatives\ncomply with such obligations.\nReturn or Destruction of Confidential Information. Upon the written request of the Disclosing Party, the Receiving Party shall return or\ndestroy all copies of the Confidential Information of the Disclosing Party; provided however, that the Receiving Party may retain one copy\nof such Confidential Information in its legal files for archival/compliance purposes only.\nNo Other Rights. Nothing herein shall be construed (a) to grant to the Receiving Party any express or implied option, license or other right,\ntitle or interest in or ownership to the Confidential Information of the Disclosing Party; (b) to grant to the Receiving Party any option,\nlicense or right under any other intellectual property rights of the Disclosing Party; or (c) to obligate a Party to enter into any additional\nagreement granting any of the foregoing, by implication or otherwise.\nRemedy. The Receiving Party acknowledges and agrees that, due to the unique nature of the Confidential Information of the Disclosing\nParty, any unauthorized disclosure or use of the Disclosing Party’s Confidential Information may cause great or irreparable harm to the\nDisclosing Party, for which damages would not afford an adequate remedy. The Receiving Party further agrees that the Disclosing Party\nshall therefore have the right to seek and to obtain immediate temporary, preliminary and/or permanent injunctive relief, without any\nrequirement to post a bond or other security, in addition to any other rights and remedies it may have at law or in equity.\n8)\n9)\n10)\n11)\nWaiver. A Party’s failure to require any other Party to comply with any provision of this Mutual NDA shall not be deemed a waiver of such\nprovision or any other provision of this Mutual NDA.\nAmendment; Severability. Any modification to or waiver of this Mutual NDA must be made in writing and signed by all Parties, or else it\nshall not be effective. If any court of competent jurisdiction determines that any provision of this Mutual NDA is partially or wholly\nunenforceable under applicable law, such provision shall be construed or reformed so as to render it enforceable to the maximum extent\npermitted by applicable law, and the remaining provisions of this Mutual NDA shall remain in full force and effect.\nEntire Understanding. This Mutual NDA shall constitute the entire understanding by and among the Parties with respect to the subject\nmatter hereof, and any prior less restrictive oral and written understandings and agreements regarding Confidential Information are hereby\nsuperseded with respect to any disclosures of Confidential Information after the Effective Date. To the extent any previous non-disclosure\nor non-use agreement among the Parties, or between any two Parties, is more stringent than, or is equally stringent as, this Mutual NDA in\nany regard, then in that regard it shall remain effective in addition to the corresponding provisions of this Mutual NDA.\nGoverning Law. This Mutual NDA shall be construed and interpreted in accordance with the laws of the State of New York, without regard\nto its choice of law principles.\n[The remainder of this page left intentionally blank]\fIN WITNESS WHEREQF, the Parties by their duly authorized representatives have caused this Mutual Non-Disclosure Agreement to be\nexecuted as of the Effective Date.\nCYTORI THERAPEUTICS, INC BIMINI TECHNOLOGIES LLC\nBy: /s/ Christopher J. Calhoun By: /s/ Bradford A. Conlan\nName: Christopher J. Calhoun Name: Bradford A. Conlan\nTitle: Chief Executive Officer Title: Chief Executive Officer\nDate: July 29, 2013 Date: July 29, 2013	Exhibit D\nMutual Nondisclosure Agreement\nThis MUTUAL Non-Disclosure Agreement (the "Mutual NDA"), dated as of July 29, 2013 (the "Effective Date"), by and among Cytori\nTherapeutics, Inc., a Delaware corporation with its principal place of business located at 3020 Callan Road, San Diego, CA 92121, U.S.A.\n("Cytori"), and BIMINI TECHNOLOGIES LLC, a corporation with its principal office at 3020 Callan Road, San Diego, CA 92121 ("Bimini").\nCytori and Bimini may each individually be referred to herein as a "Party" and collectively as the "Parties," as the context may require.\nRECITALS\nWHEREAS, Cytori has acquired, developed and possesses, through the expenditure of considerable time, effort and money, certain proprietary\nproducts and intellectual property rights (including medical devices, techniques and therapies, know-how, patents, patent applications and\ntechnical trade secrets) in connection with regenerative cell technology, cell/tissue banking technology, and adipose tissue processing and\npreparation technology used to carry out regenerative cell therapies and autologous fat transplantation ("Cytori Technology"); and\nWHEREAS, Cytori and Bimini have entered into the SALE AND EXCLUSIVE LICENSE / SUPPLY AGREEMENT by and between Cytori\nand Bimini, dated as of July 29, 2013 (the "SLSA");\nWHEREAS, on and subject to the terms and conditions set forth herein, and in accordance with the SLSA, the Parties desire to exchange\nconfidential information and materials with each other (from time to time in connection with the manufacturing and supply of the Puregraft\nProducts and Celution Products (as defined in the SLSA).\nWHEREAS, Cytori and Bimini are willing to disclose and receive such confidential information and materials under the terms and conditions set\nforth in this Mutual NDA.\nNOW, THEREFORE, in consideration of the foregoing, the mutual promises herein contained, and for other good and valuable consideration, the\nreceipt and adequacy of which are acknowledged, the Parties agree as follows:\n1) Definitions.\n1.1 "Confidential Information" shall mean (a) any information disclosed by or on behalf of one party ("Disclosing Party") to another party\n("Receiving Party"), marked as confidential if in written (including electronic) form, or if in oral form, if followed by a writing confirming\nthat the information is "Confidential" within thirty (30) business days after oral disclosure, (b) any information, whether or not such\nmaterials are marked or confirmed as confidential, that is treated as confidential by the Disclosing Party, and is reasonably understood to be\nthe\nDisclosing Party's confidential information, and (c) information designated as "Technology & Source Codes in Escrow" (as defined in\nthe SLSA), including but not limited to information related to the Celution Products manufacturing technology and software codes as well\nas the PureGraft Product manufacturing technology. For the avoidance of doubt, "Confidential Information" shall\nalso include, without limitation, financial or business information of the Parties, tangible materials containing Confidential Information,\nsuch as, among other things, technical information, written or printed documents, processes and raw material reduced to formulae, and\ncomputer print-outs, disks, memory devices or tapes, whether machine or user readable; objects of a proprietary nature, including, without\nlimitation, specifications, biochemical and biological materials, reagents, samples, models, and prototypes, regardless of whether such\nConfidential Information is related to the Puregraft and/or Cytori Product(s) (as defined in the SLSA), or any matter relating to this Mutual\nNDA; and any proprietary information of a third party which has been entrusted to the Disclosing Party.\n1.2\n"Affiliate" shall mean, as to any Party, any Person that, directly or indirectly, controls, or is controlled by, or is under common control with,\nsuch Party, where "control" (including, with its correlative meanings, "controlled by" and "under common control with") means (a) the\nbeneficial ownership of fifty percent (50%) or more of the outstanding voting securities of a Party, or (b) the possession, directly or\nindirectly, of the power to direct or cause the direction of management or policies of a Party, whether through the ownership of securities\nor\npartnership or other ownership interests, by contract or otherwise.\n2) Obligations.\n2.1 The Receiving Party shall hold in confidence and not use or disclose (except solely as permitted in Paragraph 4, below, and subject to the\nterms and conditions of Paragraph 4) Confidential Information of the Disclosing Party for any purposes other than those set forth in the\nSLSA (the "Purpose"). The Receiving Party shall treat the Confidential Information of the Disclosing Party as it would its own proprietary\ninformation, and shall take all reasonable precautions to prevent the disclosure of the Disclosing Party's Confidential Information to any\nthird party, other than an Affiliate (as defined in the SLSA) of the Receiving Party which agrees to also be bound by this Mutual NDA,\nwithout the prior written consent of the Disclosing Party.\n2.2\nThe rights and obligations set forth herein shall commence on the Effective Date and shall continue in full force and effect for the duration\nof the term of the SLSA, unless earlier terminated as provided per the termination provisions in the SLSA. In such case of earlier\ntermination, such rights and obligations set forth herein shall expire seven (7) years from the date of termination. However, such rights and\nobligations shall run in perpetuity for information designated as "Trade Secret" by the Disclosing Party at the time of disclosure.\n3) Exceptions.\n3.1 Each Party shall be prospectively relieved of any and all obligations under Paragraph 2 of this Mutual NDA regarding information of\nthe Disclosing Party which:\n(a)\nis or becomes a part of the public domain through no fault of the Receiving Party or any party to whom the Receiving Party\nhas disclosed the information pursuant to Paragraph 4, below; or\n(b)\nthe Receiving Party can demonstrate was in its rightful possession, without a restriction on use or disclosure, prior to receipt of\nthe information from the Disclosing Party or an entity acting on its behalf; or\n(c)\nthe Receiving Party can demonstrate was rightfully received from a third party without a restriction on use or disclosure;\nor\n(d)\nthe Receiving Party can demonstrate by written evidence was independently developed by the Receiving Party without access\nto or use of (directly or indirectly) Confidential Information of the Disclosing Party; or\n(e)\nis required to be, and is, disclosed in response to a valid order from a judicial or administrative authority; provided, however,\nthat the Receiving Party shall promptly notify the Disclosing Party upon its receipt of such order, shall use commercially\nreasonable efforts to limit disclosure, and shall make commercially reasonable efforts to obtain confidential treatment or a\nprotective order for the disclosure so ordered, and prior to such disclosure to permit the Disclosing Party to oppose same\nby\nappropriate legal action.\n3.2\nConfidential Information that is disclosed in accordance with this Mutual NDA shall not be deemed to be in the public domain\nmerely because any part of the Confidential Information is embodied in general disclosures, or because individual features,\ncomponents or combinations of the Confidential Information or portions thereof are now or become known to the public.\n4)\nPermitted Disclosure to Representatives. The Receiving Party shall disclose the Disclosing Party's Confidential Information (a) only to its\nemployees, agents, consultants or independent contractors (the "Representatives") on a "need to know" basis and solely in furtherance of\nthe Purpose; and (b) only if each such Representative shall have first entered into a written agreement with the Receiving Party whereby\nsuch Representative agrees to be bound by similar or more stringent obligations of nonuse and nondisclosure pertaining to the Confidential\nInformation as those imposed on the Receiving Party under this Mutual NDA. The Receiving Party shall ensure that such Representatives\ncomply with such obligations.\n5)\nReturn or Destruction of Confidential Information. Upon the written request of the Disclosing Party, the Receiving Party shall return or\ndestroy all copies of the Confidential Information of the Disclosing Party; provided however, that the Receiving Party may retain one copy\nof such Confidential Information in its legal files for archival/compliance purposes only.\n6)\nNo Other Rights. Nothing herein shall be construed (a) to grant to the Receiving Party any express or implied option, license or other right,\ntitle or interest in or ownership to the Confidential Information of the Disclosing Party; (b) to grant to the Receiving Party any option,\nlicense or right under any other intellectual property rights of the Disclosing Party; or (c) to obligate a Party to enter into any additional\nagreement granting any of the foregoing, by implication or otherwise.\n7)\nRemedy.\nThe\nReceiving\nParty\nacknowledges\nand\nagrees\nthat,\ndue\nto\nthe\nunique\nnature\nof\nthe\nConfidential\nInformation\nof\nthe\nDisclosing\nParty, any unauthorized disclosure or use of the Disclosing Party's Confidentia Information may cause great or irreparable harm to the\nDisclosing Party, for which damages would not afford an adequate remedy. The Receiving Party further agrees that the Disclosing Party\nshall therefore have the right to seek and to obtain immediate temporary, preliminary and/or permanent injunctive relief, without any\nrequirement to post a bond or other security, in addition to any other rights and remedies it may have at law or in equity.\n8)\nWaiver. A Party's failure to require any other Party to comply with any provision of this Mutual NDA shall not be deemed a waiver of such\nprovision or any other provision of this Mutual NDA.\n9)\nAmendment; Severability. Any modification to or waiver of this Mutual NDA must be made in writing and signed by all Parties, or else it\nshall not be effective. If any court of competent jurisdiction determines that any provision of this Mutual NDA is partially or wholly\nunenforceable under applicable law, such provision shall be construed or reformed so as to render it enforceable to the maximum extent\npermitted by applicable law, and the remaining provisions of this Mutual NDA shall remain in full force and effect.\n10) Entire Understanding. This Mutual NDA shall constitute the entire understanding by and among the Parties with respect to the subject\nmatter hereof, and any prior less restrictive oral and written understandings and agreements regarding Confidential Information are hereby\nsuperseded with respect to any disclosures of Confidential Information after the Effective Date. To the extent any previous non-disclosure\nor non-use agreement among the Parties, or between any two Parties, is more stringent than, or is equally stringent as, this Mutual NDA in\nany regard, then in that regard it shall remain effective in addition to the corresponding provisions of this Mutual NDA.\n11) Governing Law. This Mutual NDA shall be construed and interpreted in accordance with the laws of the State of New York, without regard\nto its choice of law principles.\n[The remainder of this page left intentionally blank]\nIN WITNESS WHEREOF, the Parties by their duly authorized representatives have caused this Mutual Non-Disclosure Agreement to be\nexecuted as of the Effective Date.\nCYTORI THERAPEUTICS, INC\nBIMINI TECHNOLOGIES LLC\nBy: /s/ Christopher J. Calhoun\nBy: /s/ Bradford A. Conlan\nName: Christopher J. Calhoun\nName: Bradford A. Conlan\nTitle: Chief Executive Officer\nTitle: Chief Executive Officer\nDate: July 29, 2013\nDate: July 29, 2013	Exhibit D\nMutual Nondisclosure Agreement\nThis MUTUAL Non-Disclosure Agreement (the “Mutual NDA”), dated as of July 29, 2013 (the “Effective Date”), by and among Cytori\nTherapeutics, Inc., a Delaware corporation with its principal place of business located at 3020 Callan Road, San Diego, CA 92121, U.S.A.\n(“Cytori”), and BIMINI TECHNOLOGIES LLC, a corporation with its principal office at 3020 Callan Road, San Diego, CA 92121 (“Bimini”).\nCytori and Bimini may each individually be referred to herein as a “Party” and collectively as the “Parties,” as the context may require.\nRECITALS\nWHEREAS, Cytori has acquired, developed and possesses, through the expenditure of considerable time, effort and money, certain proprietary\nproducts and intellectual property rights (including medical devices, techniques and therapies, know-how, patents, patent applications and\ntechnical trade secrets) in connection with regenerative cell technology, cell/tissue banking technology, and adipose tissue processing and\npreparation technology used to carry out regenerative cell therapies and autologous fat transplantation (“Cytori Technology”); and\nWHEREAS, Cytori and Bimini have entered into the SALE AND EXCLUSIVE LICENSE / SUPPLY AGREEMENT by and between Cytori\nand Bimini, dated as of July 29, 2013 (the “SLSA”);\nWHEREAS, on and subject to the terms and conditions set forth herein, and in accordance with the SLSA, the Parties desire to exchange\nconfidential information and materials with each other (from time to time in connection with the manufacturing and supply of the Puregraft\nProducts and Celution Products (as defined in the SLSA).\nWHEREAS, Cytori and Bimini are willing to disclose and receive such confidential information and materials under the terms and conditions set\nforth in this Mutual NDA.\nNOW, THEREFORE, in consideration of the foregoing, the mutual promises herein contained, and for other good and valuable consideration, the\nreceipt and adequacy of which are acknowledged, the Parties agree as follows:\n1) Definitions.\n1.1\n“Confidential Information” shall mean (a) any information disclosed by or on behalf of one party (“Disclosing Party”) to another party\n(“Receiving Party”), marked as confidential if in written (including electronic) form, or if in oral form, if followed by a writing confirming\nthat the information is “Confidential” within thirty (30) business days after oral disclosure, (b) any information, whether or not such\nmaterials are marked or confirmed as confidential, that is treated as confidential by the Disclosing Party, and is reasonably understood to be\nthe Disclosing Party’s confidential information, and (c) information designated as “Technology & Source Codes in Escrow” (as defined in\nthe SLSA), including but not limited to information related to the Celution Products manufacturing technology and software codes as well\nas the PureGraft Product manufacturing technology. For the avoidance of doubt, “Confidential Information” shall\nalso include, without limitation, financial or business information of the Parties, tangible materials containing Confidential Information,\nsuch as, among other things, technical information, written or printed documents, processes and raw material reduced to formulae, and\ncomputer print-outs, disks, memory devices or tapes, whether machine or user readable; objects of a proprietary nature, including, without\nlimitation, specifications, biochemical and biological materials, reagents, samples, models, and prototypes, regardless of whether such\nConfidential Information is related to the Puregraft and/or Cytori Product(s) (as defined in the SLSA), or any matter relating to this Mutual\nNDA; and any proprietary information of a third party which has been entrusted to the Disclosing Party.\n1.2\n“Affiliate” shall mean, as to any Party, any Person that, directly or indirectly, controls, or is controlled by, or is under common control with,\nsuch Party, where “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means (a) the\nbeneficial ownership of fifty percent (50%) or more of the outstanding voting securities of a Party, or (b) the possession, directly or\nindirectly, of the power to direct or cause the direction of management or policies of a Party, whether through the ownership of securities or\npartnership or other ownership interests, by contract or otherwise.\n2) Obligations.\n2.1 The Receiving Party shall hold in confidence and not use or disclose (except solely as permitted in Paragraph 4, below, and subject to the\nterms and conditions of Paragraph 4) Confidential Information of the Disclosing Party for any purposes other than those set forth in the\nSLSA (the “Purpose”). The Receiving Party shall treat the Confidential Information of the Disclosing Party as it would its own proprietary\ninformation, and shall take all reasonable precautions to prevent the disclosure of the Disclosing Party’s Confidential Information to any\nthird party, other than an Affiliate (as defined in the SLSA) of the Receiving Party which agrees to also be bound by this Mutual NDA,\nwithout the prior written consent of the Disclosing Party.\n2.2 The rights and obligations set forth herein shall commence on the Effective Date and shall continue in full force and effect for the duration\nof the term of the SLSA, unless earlier terminated as provided per the termination provisions in the SLSA. In such case of earlier\ntermination, such rights and obligations set forth herein shall expire seven (7) years from the date of termination. However, such rights and\nobligations shall run in perpetuity for information designated as “Trade Secret” by the Disclosing Party at the time of disclosure.\n3) Exceptions.\n3.1 Each Party shall be prospectively relieved of any and all obligations under Paragraph 2 of this Mutual NDA regarding information of\nthe Disclosing Party which:\n(a) is or becomes a part of the public domain through no fault of the Receiving Party or any party to whom the Receiving Party\nhas disclosed the information pursuant to Paragraph 4, below; or\n(b) the Receiving Party can demonstrate was in its rightful possession, without a restriction on use or disclosure, prior to receipt of\nthe information from the Disclosing Party or an entity acting on its behalf; or\n(c)\nthe Receiving Party can demonstrate was rightfully received from a third party without a restriction on use or disclosure; or\n(d) the Receiving Party can demonstrate by written evidence was independently developed by the Receiving Party without access\nto or use of (directly or indirectly) Confidential Information of the Disclosing Party; or\n(e) is required to be, and is, disclosed in response to a valid order from a judicial or administrative authority; provided, however,\nthat the Receiving Party shall promptly notify the Disclosing Party upon its receipt of such order, shall use commercially\nreasonable efforts to limit disclosure, and shall make commercially reasonable efforts to obtain confidential treatment or a\nprotective order for the disclosure so ordered, and prior to such disclosure to permit the Disclosing Party to oppose same by\nappropriate legal action.\n3.2 Confidential Information that is disclosed in accordance with this Mutual NDA shall not be deemed to be in the public domain\nmerely because any part of the Confidential Information is embodied in general disclosures, or because individual features,\ncomponents or combinations of the Confidential Information or portions thereof are now or become known to the public.\n4) Permitted Disclosure to Representatives. The Receiving Party shall disclose the Disclosing Party’s Confidential Information (a) only to its\nemployees, agents, consultants or independent contractors (the “Representatives”) on a “need to know” basis and solely in furtherance of\nthe Purpose; and (b) only if each such Representative shall have first entered into a written agreement with the Receiving Party whereby\nsuch Representative agrees to be bound by similar or more stringent obligations of nonuse and nondisclosure pertaining to the Confidential\nInformation as those imposed on the Receiving Party under this Mutual NDA. The Receiving Party shall ensure that such Representatives\ncomply with such obligations.\n5) Return or Destruction of Confidential Information. Upon the written request of the Disclosing Party, the Receiving Party shall return or\ndestroy all copies of the Confidential Information of the Disclosing Party; provided however, that the Receiving Party may retain one copy\nof such Confidential Information in its legal files for archival/compliance purposes only.\n6) No Other Rights. Nothing herein shall be construed (a) to grant to the Receiving Party any express or implied option, license or other right,\ntitle or interest in or ownership to the Confidential Information of the Disclosing Party; (b) to grant to the Receiving Party any option,\nlicense or right under any other intellectual property rights of the Disclosing Party; or (c) to obligate a Party to enter into any additional\nagreement granting any of the foregoing, by implication or otherwise.\n7) Remedy. The Receiving Party acknowledges and agrees that, due to the unique nature of the Confidential Information of the Disclosing\nParty, any unauthorized disclosure or use of the Disclosing Party’s Confidential Information may cause great or irreparable harm to the\nDisclosing Party, for which damages would not afford an adequate remedy. The Receiving Party further agrees that the Disclosing Party\nshall therefore have the right to seek and to obtain immediate temporary, preliminary and/or permanent injunctive relief, without any\nrequirement to post a bond or other security, in addition to any other rights and remedies it may have at law or in equity.\n8) Waiver. A Party’s failure to require any other Party to comply with any provision of this Mutual NDA shall not be deemed a waiver of such\nprovision or any other provision of this Mutual NDA.\n9) Amendment; Severability. Any modification to or waiver of this Mutual NDA must be made in writing and signed by all Parties, or else it\nshall not be effective. If any court of competent jurisdiction determines that any provision of this Mutual NDA is partially or wholly\nunenforceable under applicable law, such provision shall be construed or reformed so as to render it enforceable to the maximum extent\npermitted by applicable law, and the remaining provisions of this Mutual NDA shall remain in full force and effect.\n10) Entire Understanding. This Mutual NDA shall constitute the entire understanding by and among the Parties with respect to the subject\nmatter hereof, and any prior less restrictive oral and written understandings and agreements regarding Confidential Information are hereby\nsuperseded with respect to any disclosures of Confidential Information after the Effective Date. To the extent any previous non-disclosure\nor non-use agreement among the Parties, or between any two Parties, is more stringent than, or is equally stringent as, this Mutual NDA in\nany regard, then in that regard it shall remain effective in addition to the corresponding provisions of this Mutual NDA.\n11) Governing Law. This Mutual NDA shall be construed and interpreted in accordance with the laws of the State of New York, without regard\nto its choice of law principles.\n[The remainder of this page left intentionally blank]\nIN WITNESS WHEREOF, the Parties by their duly authorized representatives have caused this Mutual Non-Disclosure Agreement to be\nexecuted as of the Effective Date.\nCYTORI THERAPEUTICS, INC\nBIMINI TECHNOLOGIES LLC\nBy: /s/ Christopher J. Calhoun\nBy: /s/ Bradford A. Conlan\nName: Christopher J. Calhoun\nName: Bradford A. Conlan\nTitle: Chief Executive Officer\nTitle: Chief Executive Officer\nDate: July 29, 2013\nDate: July 29, 2013
+a5d9e80a972e73f6f9eb78bab20202b3.pdf	effective_date jurisdiction party term	Exhibit 10.2\nAMENDED AND RESTATED EMPLOYMENT, NON-COMPETE\nAND CONFIDENTIALITY AGREEMENT\n(amended and restated effective as of April 1, 2018)\nTHIS AMENDED AND RESTATED EMPLOYMENT, NON-COMPETE AND CONFIDENTIALITY\nAGREEMENT ("Agreement"), is entered into between Richard A. Montoni (the "Employee") and MAXIMUS,\nInc., a Virginia corporation with its principal place of business in Reston, Virginia (the "Corporation") with\nreference to the following:\nWHEREAS, the parties entered into that certain Executive Employment, Non-Compete and\nConfidentiality Agreement effective April 21, 2006, which was subsequently amended on November 20, 2007,\nDecember 22, 2009, October 7, 2013, and March 4, 2014 (as amended, the “Current Agreement”); and\nWHEREAS, the parties believe Employee possesses the experience and capabilities to provide\nvaluable service on behalf of the Corporation; and\nWHEREAS, the Corporation desires to employ Employee as Senior Advisor to the Chief Executive\nOfficer; and\nWHEREAS, Employee desires to be employed by the Corporation at the salary, benefits and other\nterms and conditions specified herein; and\nWHEREAS, the parties desire to amend and restate the Current Agreement in its entirety, effective as\nof April 1, 2018 (the “Effective Date”), pursuant to the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of these premises and for other good and valuable\nconsideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:\n1.\nEmployment.\n1.1.Duties. The Corporation hereby employs Employee, and Employee hereby accepts such\nemployment, to serve as the Senior Advisor to the Chief Executive Officer. Employee hereby represents and\nwarrants that he is in good health and capable of performing the services required hereunder. Employee shall\nperform such services and duties as are delegated to Employee by the Corporation’s Board of Directors\n(“Board”) or the Chief Executive Officer as the designee of the Board. During the term of this Agreement,\nEmployee shall be an employee of the Corporation and shall devote such time and attention to the discharge\nof his duties as may be necessary and appropriate to accomplish and complete such duties, it being the\nunderstanding of the parties that Employee’s services shall not require Employee’s full time and attention and\nwill average to be approximately 50% of full-time.\nEmployee shall be nominated by the Board for election as a director holding the position of Vice\nChairman and shall serve as a member of the Board subject to his being so elected by the Corporation's\nstockholders; provided that, during the term of this Agreement, Employee shall serve on the Board without\nadditional compensation.\n1.2.Compensation.\n(a)Salary. As of the Effective Date, the Corporation shall pay Employee an annual salary of\n$1,000,000 ("Salary").\n(b)Bonus. During the term of this Agreement, Employee will be eligible for discretionary bonus\nawards as determined in the sole discretion of the Board. Employee, the Chairman of the Board and\nthe Chief Executive Officer will meet not less than quarterly and establish performance objectives for\nEmployee and incentive bonus targets as appropriate. During the term of this Agreement, Employee\nwill not be eligible for awards under the Corporation’s Management Bonus Plan and the 2017 Equity\nIncentive Plan (or successor plans) and will not participate in the Corporation’s Income Continuity\nProgram. Any other compensation shall be in the sole discretion of the Compensation Committee of\nthe Corporations’ Board of Directors.\n(c)Equity Awards. The Corporation agrees to proportionately adjust Employee’s vested and\nunvested equity awards in the event the Corporation declares an extraordinary dividend during the\nterm hereof. For these purposes, an “extraordinary dividend” would be any distribution per share\nhaving a value in excess of ten percent (10%) of the average trading price of the Corporation’s\ncommon stock during the three-month period preceding such distribution. Notwithstanding the\nexpiration or mutual termination of this Agreement, any Restricted Stock Units or other equity awards\npreviously made to Employee on or after October 1, 2013, shall vest according to their stated vesting\nschedules (or pursuant to the acceleration feature in connection with a Change in Control). For\navoidance of doubt, vesting and settlement of such Restricted Stock Units or other equity awards shall\noccur on the dates set forth in the stated vesting schedules (or pursuant to the acceleration feature in\nconnection with a Change in Control) and without regard to whether Employee is employed by the\nCorporation on any such dates.\n(d)Vacation, Insurance, Expenses, Etc. Employee shall receive such health, disability and life\ninsurance and other benefits and expense reimbursements, including but not limited to travel and\nentertainment, in a manner consistent with the Corporation's past practices and as are provided to the\nCorporation’s senior executives. The Corporation will reimburse Employee for the reasonable\nattorney’s fees incurred in connection with the review and negotiation of this Agreement.\n(e)Insurance and Indemnification. The Corporation shall maintain Employee as an insured\nparty on all directors' and officers' insurance maintained by the Corporation for the benefit of its\ndirectors and officers on at least the same basis as all other covered individuals and provide Employee\nwith at least the same corporate indemnification as its officers.\n1.3.Place of Performance. Employee may perform the advisory services under this Agreement from\nsuch locations as are determined by Employee, except that Employee shall upon reasonable advance notice\nby the Board or the Chief Executive Officer attend such meetings at the Corporation’s headquarters in Reston,\nVirginia or at such other locations as may be deemed necessary and in the best interests of the Corporation.\nIn furtherance of his performance of services under this Agreement, Employee may establish or make\narrangements for office space and administrative support in such locations as Employee shall determine. The\nCorporation shall either pay directly or reimburse Employee for the reasonable costs of such office space and\nadministrative support.\n1.4.Term; Termination. The term of the employment agreement set forth in this Section 1 shall be for a\nperiod commencing at the Effective Date and continuing until September 30, 2019 (the "Scheduled Term")\nprovided that this Agreement shall terminate:\n(a)by mutual written consent of the parties;\n(b)upon Employee's death or inability, by reason of physical or mental impairment, to perform\nsubstantially all of Employee's duties as contemplated herein for a continuous period of 120 days or\nmore; or\n(c)by the Corporation for Cause (as defined below).\nUpon any termination of employment under this Section 1.4, neither party shall have any obligation to\nthe other pursuant to this Section 1, but such termination shall have no effect on the obligations of the parties\nunder other provisions of this Agreement.\nUntil the Effective Date, the Current Agreement between the parties shall remain in full force and\neffect.\n1.5.Severance. The parties agree that in the event the Corporation terminates Employee's employment\nwithout Cause or Employee terminates the employment for Good Reason (as defined below) prior to the\nexpiration of the Scheduled Term, Employee shall be entitled to the following:\n(a) benefits, at the Corporation's expense, as provided under Section 1.2 for the greater of\nthe remainder of the Scheduled Term or twelve (12) months. To the extent that these payments are\nnot exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) under\nthe COBRA, reimbursement, in-kind benefit, or other applicable exceptions thereunder, such payments\nshall be made at the time and in the amount required under the documents governing each such\nbenefit;\n(b) continued vesting of stock options and Restricted Stock Units as set forth in Section\n1.2(c); and\n(c) a lump sum, payable within 30 days following termination of employment, equal to the\nSalary for the remainder of the Scheduled Term, which lump sum shall be considered a separate\npayment for purposes of Section 409A of the Code.\n1.6.Definitions. For purposes of the Agreement, “Cause” and “Good Reason” shall have the meanings\nprovided in the Corporation’s Income Continuity Program as it exists on the execution date of this Agreement.\n2.Non-Competition.\n2.1.Prohibited Activities.\n(a)Employee agrees that, during his employment with the Corporation and for a period of one\n(1) year after the termination of such employment, Employee will not engage in any Unethical Behavior\nwhich may adversely affect the Corporation. For the purpose of this Section 2.1, "Unethical Behavior"\nis defined as:\n(i)any attempt, successful or unsuccessful, by Employee to divert any existing or\npending contracts or subcontracts from the Corporation to any other firm, whether or not\naffiliated with Employee;\n(ii)any attempt, successful or unsuccessful, by Employee, to influence clients of the\nCorporation or organizations with which the Corporation has an existing or pending contract or\nproposal to refrain from doing business with the Corporation or to terminate existing business\nwith the Corporation;\n(iii)any attempt, successful or unsuccessful, by Employee to offer his services, or to\ninfluence any other employee of the Corporation to offer their services, to any firm to compete\nagainst the Corporation; or\n(iv)any attempt, successful or unsuccessful, by Employee to employ or offer\nemployment to, or cause any other person to employ or offer employment to any individual who\nwas an employee of the Corporation at any time during Employee’s last six months of\nemployment with the Corporation.\n(b)Employee shall notify any new employer, partner, association or any other firm or\ncorporation in competition with the Corporation with whom Employee shall become associated in any\ncapacity whatsoever of the provisions of this Section 2 and Employee agrees that the Corporation may\ngive such notice to such firm, corporation or other person.\n2.2.Business Opportunities; Conflicts of Interest; Other Employment and Activities of Employee.\n(a)Employee agrees promptly to advise the Corporation of, and provide the Corporation with an\nopportunity to pursue, all business opportunities of which Employee becomes aware that reasonably\nrelate to the present business conducted by the Corporation.\n(b)Employee, in his capacity as an employee of the Corporation, shall not cause the\nCorporation to engage in any business with any member of Employee's immediate family or with any\nperson or business entity in which Employee or any member of Employee's immediate family has any\nownership interest or financial interest, unless and until Employee has first fully disclosed such interest\nto and received written consent from the Board of Directors. As used herein, the term "immediate\nfamily" means Employee's spouse, natural or adopted children, parents or siblings and the term\n"financial interest" means any relationship with such person or business entity that may monetarily\nbenefit Employee or member of Employee's immediate family, including any lending relationship or the\nguarantying of any obligations of such person or business entity by Employee or member of his\nimmediate family.\n(c)The parties hereto agree that Employee may, consistent with this Section 2.2, continue his\ninvolvement with the Northern Virginia Technology Counsel and such other trade associations, civic\norganizations and educational institutions in which he is involved as of the Effective Date and may\nengage in such other activities and business opportunities which do not interfere with Employee’s\nability to perform the duties described in Section 1.1 .\n3.Confidentiality. Employee agrees that the Corporation's books, records, files and all other non-public\ninformation relating to the Corporation, its business, clients and employees are proprietary in nature and\ncontain trade secrets and shall be held in strict confidence by Employee, and shall not, either during the term\nof this Agreement or after the termination hereof, be used by Employee or disclosed, directly or indirectly, to\nany third party, except to the extent such use or disclosure is in furtherance of the Corporation's business or\nrequired by any law, rule, regulation or other legal process. The trade secrets or other proprietary or\nconfidential information referred to in the prior sentence includes, without limitation, all proposals to clients or\npotential clients, contracts, client or potential client lists, fee policies, financial information, administration or\nmarketing practices or procedures and all other information regarding the business of the Corporation and its\nclients not generally known to the public.\n4.Miscellaneous.\n4.1.Notices. All notices, requests, demands or other communications provided for in this Agreement\nshall be in writing and shall be delivered by hand, e-mail, sent prepaid by overnight delivery service or sent by\nthe United States mail, certified, postage prepaid, return receipt request, to the following:\nIf to the Corporation:\nMAXIMUS, Inc.\n1891 Metro Center Drive\nReston, Virginia 20190\nAttention: General Counsel\nIf to Employee:\nRichard A. Montoni\nAny notice, request, demand or other communication delivered or sent in the foregoing manner shall be\ndeemed given or made (as the case may be) upon the earliest of (i) the date it is actually received, (ii) the\nbusiness-day after the day on which it is delivered by hand or sent by e-mail, (iii) the business day after the\nday on which it is properly delivered to Federal Express (or a comparable overnight delivery service), or (iv)\nthe third business day after the date on which it is deposited in the United States mail. Either party may\nchange its address by notifying the other party of the new address in any manner permitted by this paragraph.\n4.2.Remedies. The parties agree and acknowledge that any violation by Employee of the terms hereof\nmay result in irreparable injury and damage to the Corporation or its clients, which may not adequately be\ncompensable in monetary damages, that the Corporation will have no adequate remedy at law therefor, and\nthat the Corporation may obtain such preliminary, temporary or permanent mandatory or restraining\ninjunctions, orders or decrees as may be necessary to protect it against, or on account of, any breach of the\nprovisions contained in this Agreement.\n4.3.No Obligation of Continued Employment. Employee understands that this Agreement does not\ncreate an obligation on the part of the Corporation to continue Employee's employment with the Corporation\nafter the expiration or termination of this Agreement.\n4.4.Benefit; Assignment. This Agreement shall bind and inure to the benefit of the parties and their\nrespective personal representatives, heirs, successors and assigns, provided this Agreement may not be\nassigned by either party without the consent of the other, except that the Corporation may assign this\nAgreement in connection with the merger, consolidation or sale of all or substantially all of its business or\nassets.\n4.5.Entire Agreement. This Agreement supersedes all prior agreements, written or oral, with respect to\nthe subject matter of this Agreement, other than the Current Agreement, which shall remain in full force and\neffect until the Effective Date.\n4.6.Severability. In the event that any one or more of the provisions contained herein shall be held to\nbe invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect\nany other provisions of this Agreement, and all other provisions shall remain in full force and effect. If any of\nthe provisions of this Agreement is held to be excessively broad, it shall be reformed and construed by limiting\nand reducing it so as to be enforceable to the maximum extent permitted by law.\n4.7.Waivers. No delay or omission by the Corporation in exercising any right under this Agreement will\noperate as a waiver of that or any other right. A waiver or consent given by the Corporation on any occasion is\neffective only in that instance and will not be construed as a bar to or waiver of any right on any other\noccasion.\n4.8.Captions. The captions of the various sections and paragraphs of this Agreement have been\ninserted only for the purpose of convenience; such captions are not a part of this Agreement and shall not be\ndeemed in any manner to modify, explain, enlarge or restrict any of the provisions of this Agreement.\n4.9.Governing Law and Jurisdiction. This Agreement shall in all events and for all purposes be\ngoverned by, and construed in accordance with, the laws of the Commonwealth of Virginia. Any action or\nproceeding against the parties relating in any way to this Agreement must be brought and enforced in the\ncourts of Fairfax County, Virginia or the Northern District of Virginia, and the parties irrevocably submit to the\njurisdiction of such courts in respect of any such action or proceeding.\n4.10.Amendments. No changes to this Agreement shall be binding unless in writing and signed by both\nthe parties.\n4.11 .Counterparts. This Agreement may be executed in several counterparts, each of which shall be\ndeemed an original, and all such counterparts shall constitute one instrument.\n4.12.Survival. The provisions of this Agreement shall survive the expiration or earlier termination of this\nAgreement, to the extent necessary to give effect to such provisions. Such provisions include, but are not\nlimited to Section 1.2(c), 1.2(e), 2.1 and 3.\n4.13.Distributions to Specified Employees. Notwithstanding any provision to the contrary, to the extent\nEmployee is considered a specified employee under Section 409A of the Code and would be entitled to a\npayment by reason of his “separation from service” (as defined under Section 409A of the Code) that is not\notherwise excluded under Section 409A of the Code under the exceptions for short-term deferrals, separation\npay arrangements, reimbursements, in-kind distributions, or an otherwise applicable exemption, the payment\nwill not be made to Employee until the earlier of the six month anniversary of Employee's date of termination\nor Employee's death.\n4.14 .Section 409A of the Code. It is the intention of the parties that this Agreement comply with and be\nadministered in accordance with Section 409A of the Code and the interpretive guidance thereunder, including\nthe exceptions for short-term deferrals, separation pay arrangements, reimbursements, and in-kind\ndistributions. The Agreement shall be construed and interpreted in accordance with such intent. To the extent\nsuch potential payments or benefits could become subject to such Section, the parties shall cooperate to\namend this Agreement with the goal of giving Employee the economic benefits described herein in a manner\nthat does not result in such tax being imposed. In the event that the Corporation does not so cooperate, the\nCorporation shall indemnify Employee for any interest and additional tax arising from the application of\nSection 409A of the Code, grossed-up for any other income tax incurred by Employee related to the\nindemnification (i.e ., indemnification of such additional income tax), assuming the highest marginal income tax\nrates apply to any taxable indemnification. Any indemnification payment shall be made within ninety (90) days\nof the date Employee makes payment of the interest and/or additional tax.\nEMPLOYEE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND EMPLOYEE\nUNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. EMPLOYEE UNDERSTANDS THAT\nTHIS AGREEMENT MAY AFFECT EMPLOYEE'S RIGHT TO ACCEPT EMPLOYMENT WITH OTHER\nCOMPANIES SUBSEQUENT TO EMPLOYEE'S EMPLOYMENT WITH THE CORPORATION.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement effective as of the date\nindicated below.\nEMPLOYEE\nMAXIMUS, Inc.\n/s/ Richard A. Montoni\nBy /s/ David R. Francis\nRichard A. Montoni\nDate January 9, 2018\nTitle General Counsel	Exhibit 10.2\nAMENDED AND RESTATED EMPLOYMENT, NON-COMPETE\nAND CONFIDENTIALITY AGREEMENT\n(amended and restated effective as oprril 1I 2018)\nTHIS AMENDED AND RESTATED EMPLOYMENT, NON-COMPETE AND CONFIDENTIALITY\nAGREEMENT ("Agreement"), is entered into between Richard A. Montoni (the "Employee") and MAXIMUS,\nInc., a Virginia corporation with its principal place of business in Reston, Virginia (the "Corporation") with\nreference to the following:\nWHEREAS, the parties entered into that certain Executive Employment, Non-Compete and\nConfidentiality Agreement effective April 21, 2006, which was subsequently amended on November 20, 2007,\nDecember 22, 2009, October 7, 2013, and March 4, 2014 (as amended, the "CurrentAgreement”); and\nWHEREAS, the parties believe Employee possesses the experience and capabilities to provide\nvaluable service on behalfofthe Corporation; and\nWHEREAS, the Corporation desires to employ Employee as SeniorAdvisorto the Chief Executive\nOfficer; and\nWHEREAS, Employee desires to be employed by the Corporation atthe salary, benefits and other\nterms and conditions specified herein; and\nWHEREAS, the parties desire to amend and restate the CurrentAgreement in its entirety, effective as\noprril 1, 2018 (the "Effective Date”), pursuantto the terms and conditions ofthis Agreement.\nNOW, THEREFORE, in consideration ofthese premises and for other good and valuable\nconsideration, the receipt and adequacy ofwhich are hereby acknowledged, the parties agree as follows:\n1. E mployment.\n1.1.Duties. The Corporation hereby employs Employee, and Employee hereby accepts such\nemployment, to serve as the SeniorAdvisorto the Chief Executive Officer. Employee hereby represents and\nwarrants that he is in good health and capable of performing the services required hereunder. Employee shall\nperform such services and duties as are delegated to Employee by the Corporation’s Board of Directors\n("Board”) or the Chief Executive Officer as the designee of the Board. During the term of this Agreement,\nEmployee shall be an employee ofthe Corporation and shall devote such time and attention to the discharge\nof his duties as may be necessary and appropriate to accomplish and complete such duties, it being the\nunderstanding of the parties that Employee’s services shall not require Employee’s full time and attention and\nwill average to be approximately 50% of full-time.\n \nEmployee shall be nominated by the Board for election as a director holding the position ofVice\nChairman and shall serve as a member ofthe Board subject to his being so elected by the Corporation's\nstockholders; provided that, during the term of this Agreement, Employee shall serve on the Board without\nadditional compensation.\n1.2.Compensation.\n(a)Salary. As ofthe Effective Date, the Corporation shall pay Employee an annual salary of\n$1,000,000 ("Salary").\n(b)Bonus. During the term of this Agreement, Employee will be eligible for discretionary bonus\nawards as determined in the sole discretion of the Board. Employee, the Chairman ofthe Board and\nthe Chief Executive Officer will meet not less than quarterly and establish performance objectives for\nEmployee and incentive bonus targets as appropriate. During the term of this Agreement, Employee\nwill not be eligible for awards underthe Corporation’s Management Bonus Plan and the 2017 Equity\nIncentive Plan (or successor plans) and will not participate in the Corporation’s lncome Continuity\nProgram. Any other compensation shall be in the sole discretion ofthe Compensation Committee of\nthe Corporations’ Board of Directors.\n(c)Eguity Awards. The Corporation agrees to proportionately adjust E mployee’s vested and\nunvested equity awards in the event the Corporation declares an extraordinary dividend during the\nterm hereof. Forthese purposes, an "extraordinary dividend” would be any distribution per share\nhaving a value in excess often percent (10%) of the average trading price ofthe Corporation’s\ncommon stock during the three-month period preceding such distribution. Notwithstanding the\nexpiration or mutual termination ofthis Agreement, any Restricted Stock Units or other equity awards\npreviously made to E mployee on or after October 1, 2013, shall vest according to their stated vesting\nschedules (or pursuant to the acceleration feature in connection with a Change in Control). For\navoidance ofdoubt, vesting and settlement ofsuch Restricted Stock Units or other equity awards shall\noccur on the dates set forth in the stated vesting schedules (or pursuantto the acceleration feature in\nconnection with a Change in Control) and without regard to whether E mployee is employed by the\nCorporation on any such dates.\n(d)Vacation, Insurance, Expenses, Etc. Employee shall receive such health, disability and life\ninsurance and other benefits and expense reimbursements, including but not limited to travel and\nentertainment, in a manner consistentwith the Corporation's past practices and as are provided to the\nCorporation’s senior executives. The Corporation will reimburse Employee forthe reasonable\nattorney’s fees incurred in connection with the review and negotiation of this Agreement.\n(e)lnsurance and Indemnification. The Corporation shall maintain Employee as an insured\nparty on all directors' and officers' insurance maintained by the Corporation forthe benefit of its\ndirectors and officers on at leastthe same basis as all other covered individuals and provide Employee\nwith at least the same corporate indemnification as its officers.\n1.3.Place of Performance. Employee may perform the advisory services underthis Agreementfrom\nsuch locations as are determined by Employee, except that Employee shall upon reasonable advance notice by the Board orthe Chief Executive Officer attend such meetings atthe Corporation’s headquarters in Reston, Virginia or at such other locations as may be deemed necessary and in the best interests of the Corporation. In furtherance of his performance ofservices underthis Agreement, Employee may establish or make arrangements for office space and administrative support in such locations as Employee shall determine. The Corporation shall either pay directly or reimburse Employee for the reasonable costs ofsuch office space and administrative support. 1.4.Term; Termination. The term ofthe employment agreement set forth in this Section 1 shall be for a\nperiod commencing atthe Effective Date and continuing until September 30, 2019 (the "Scheduled Term") provided thatthis Agreement shall terminate: (a)by mutual written consent ofthe parties;\n(b)upon Employee's death or inability, by reason of physical or mental impairment, to perform\nsubstantially all of Employee's duties as contemplated herein for a continuous period of 120 days or\nmore; or\n(c)by the Corporation for Cause (as defined below).\nUpon any termination ofemployment underthis Section 1.4, neither party shall have any obligation to\nthe other pursuant to this Section 1, but such termination shall have no effecton the obligations ofthe parties\nunder other provisions of this Agreement.\nUntil the Effective Date, the CurrentAgreement between the parties shall remain in full force and\neffect.\n1.5.Severance. The parties agree that in the event the Corporation terminates Employee's employment\nwithout Cause or Employee terminates the employmentfor Good Reason (as defined below) priorto the\nexpiration ofthe Scheduled Term, E mployee shall be entitled to the following:\n(a) benefits, atthe Corporation's expense, as provided under Section 1.2 forthe greater of\nthe remainder ofthe Scheduled Term ortwelve (12) months. To the extentthatthese payments are\nnot exempt from Section 409A ofthe Internal Revenue Code of 1986, as amended (the "Code”) under\nthe COBRA, reimbursement, in-kind benefit, orotherapplicable exceptions thereunder, such payments\nshall be made atthe time and in the amount required underthe documents governing each such\nbenefit\n(b) continued vesting of stock options and Restricted Stock Units as set forth in Section\n1.2(c); and\n(c) a lump sum, payable within 30 days following termination ofemployment, equal to the\nSalary forthe remainder ofthe Scheduled Term, which lump sum shall be considered a separate\npaymentfor purposes of Section 409A ofthe Code.\n1.6.Definitions. For purposes ofthe Agreement, "Cause”and "Good Reason”sha|l have the meanings\nprovided in the Corporation’s Income Continuity Program as it exists on the execution date ofthis Agreement.\n2.Non-Competition.\n2.1.P rohibited Activities.\n(a)Employee agrees that, during his employment with the Corporation and for a period ofone\n(1) year afterthe termination ofsuch employment, Employee will not engage in any Unethical Behavior\nwhich may adversely affect the Corporation. Forthe purpose ofthis Section 2.1, "U nethical Behavior"\nis defined as:\n(i)a ny attempt, successful or unsuccessful, by E mployee to divert any existing or\npending contracts or subcontracts from the Corporation to any other firm, whether or not\naffiliated with Employee;\n(ii)any attempt, successful or unsuccessful, by E mployee, to influence clients ofthe\nCorporation or organizations with which the Corporation has an existing or pending contractor\nproposal to refrain from doing business with the Corporation orto terminate existing business\nwith the Corporation;\n(iii)any attempt, successful or unsuccessful, by Employee to offer his services, or to\ninfluence any other employee ofthe Corporation to offer their services, to any firm to compete\nagainstthe Corporation; or\n(iv)any attempt, successful or unsuccessful, by E mployee to employ or offer\nemploymentto, or cause any other person to employ or offer employment to any individual who\nwas an employee ofthe Corporation at any time during Employee’s lastsix months of\nemployment with the Corporation.\n(b)Employee shall notify any new employer, partner, association or any other firm or\ncorporation in competition with the Corporation with whom E mployee shall become associated in any\ncapacity whatsoever of the provisions ofthis Section 2 and Employee agrees thatthe Corporation may\ngive such notice to such firm, corporation or other person.\n2.2.Business Opportunities; Conflicts of Interest; Other E mployment and Activities of E mployee.\n(a)Employee agrees promptly to advise the Corporation of, and provide the Corporation with an\nopportunity to pursue, all business opportunities ofwhich Employee becomes aware that reasonably\nrelate to the present business conducted by the Corporation.\n(b)Employee, in his capacity as an employee of the Corporation, shall not cause the\nCorporation to engage in any business with any member of Employee's immediate family or with any\nperson or business entity in which Employee or any member of Employee's immediate family has any\nownership interestorfinancial interest, unless and until Employee has firstfully disclosed such interest\nto and received written consent from the Board of Directors. As used herein, the term "immediate\nfamily" means Employee's spouse, natural or adopted children, parents or siblings and the term\n"financial interest" means any relationship with such person or business entity that may monetarily\nbenefit Employee or member of Employee's immediate family, including any lending relationship orthe\nguarantying ofany obligations ofsuch person or business entity by Employee or member of his\nimmediate family.\n(c)The parties hereto agree that Employee may, consistent with this Section 2.2, continue his\ninvolvement with the Northern Virginia Technology Counsel and such other trade associations, civic\norganizations and educational institutions in which he is involved as of the Effective Date and may\nengage in such other activities and business opportunities which do not interfere with Employee’s\nability to perform the duties described in Section 1.1.\n3.Confidentiality. Employee agrees thatthe Corporation's books, records, files and all other non-public\ninformation relating to the Corporation, its business, clients and employees are proprietary in nature and\ncontain trade secrets and shall be held in strictconfidence by Employee, and shall not, either during the term\nof this Agreement or after the termination hereof, be used by Employee or disclosed, directly or indirectly, to\nany third party, except to the extentsuch use or disclosure is in furtherance of the Corporation's business or\nrequired by any law, rule, regulation or other legal process. The trade secrets or other proprietary or\nconfidential information referred to in the prior sentence includes, without limitation, all proposals to clients or\npotential clients, contracts, clientor potential client lists, fee policies, financial information, administration or\nmarketing practices or procedures and all other information regarding the business ofthe Corporation and its\nclients not generally known to the public.\n4.Misce||aneous.\n4.1.Notices. All notices, requests, demands or other communications provided for in this Agreement\nshall be in writing and shall be delivered by hand, e-mail, sent prepaid by overnight delivery service or sent by\nthe United States mail, certified, postage prepaid, return receipt request, to the following:\nlfto the Corporation:\n \nMAXIMUS, Inc.\n1891 Metro Center Drive\nReston, Virginia 20190\nAttention: General Counsel\nlfto E mployee:\nRichard A. Montoni\nAny notice, request, demand or other communication delivered or sent in the foregoing manner shall be\ndeemed given or made (as the case may be) upon the earliest of (i) the date it is actually received, (ii) the\nbusiness-day afterthe day on which it is delivered by hand or sent by e-mail, (iii) the business day afterthe\nday on which it is properly delivered to Federal Express (or a comparable overnightdelivery service), or (iv)\nthe third business day afterthe date on which it is deposited in the United States mail. Either party may\nchange its address by notifying the other party ofthe new address in any manner permitted by this paragraph.\n4.2.Remedies. The parties agree and acknowledge that any violation by Employee of the terms hereof\nmay result in irreparable injury and damage to the Corporation or its clients, which may not adequately be\ncompensable in monetary damages, thatthe Corporation will have no adequate remedy at law therefor, and\nthat the Corporation may obtain such preliminary, temporary or permanent mandatory or restraining\ninjunctions, orders or decrees as may be necessary to protect it against, or on account of, any breach of the\nprovisions contained in this Agreement.\n4.3.No Obligation ofContinued Employment. Employee understands thatthis Agreementdoes not\ncreate an obligation on the part ofthe Corporation to continue Employee's employment with the Corporation\nafter the expiration or termination ofthis Agreement.\n4.4.Benefit; Assignment. This Agreement shall bind and inure to the benefit ofthe parties and their\nrespective personal representatives, heirs, successors and assigns, provided this Agreement may not be\nassigned by either party withoutthe consent of the other, except thatthe Corporation may assign this\nAgreement in connection with the merger, consolidation or sale ofall or substantially all of its business or\nassets.\n4.5.Entire Agreement. This Agreement supersedes all prior agreements, written or oral, with respectto\nthe subject matter of this Agreement, otherthan the CurrentAgreement, which shall remain in full force and\neffect until the Effective Date.\n4.6.Severability. In the event thatany one or more ofthe provisions contained herein shall be held to\nbe invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect\nany other provisions of this Agreement, and all other provisions shall remain in full force and effect. lfany of\nthe provisions ofthis Agreement is held to be excessively broad, itshall be reformed and construed by limiting\nand reducing itso as to be enforceable to the maximum extent permitted by law.\n4.7.Waivers. No delay or omission by the Corporation in exercising any right underthis Agreementwill\noperate as a waiver ofthat or any other right. A waiver or consent given by the Corporation on any occasion is\neffective only in that instance and will not be construed as a bar to or waiver of any right on any other\noccasion.\n \n4.8.Captions. The captions of the various sections and paragraphs ofthis Agreement have been\ninserted only forthe purpose ofconvenience; such captions are not a part ofthis Agreementand shall not be\ndeemed in any mannerto modify, explain, enlarge or restrict any ofthe provisions of this Agreement.\n4.9.Governing Law and | urisdiction. This Agreementshall in all events and forall purposes be\ngoverned by, and construed in accordance with, the laws of the Commonwealth ofVirginia. Any action or\nproceeding againstthe parties relating in any way to this Agreement must be brought and enforced in the\ncourts of Fairfax County, Virginia orthe Northern District ofVirginia, and the parties irrevocably submit to the\njurisdiction ofsuch courts in respect ofany such action or proceeding.\n4.10.Amendments. No changes to this Agreementshall be binding unless in writing and signed by both\nthe parties.\n4.11.Counterparts. This Agreement may be executed in several counterparts, each ofwhich shall be\ndeemed an original, and all such counterparts shall constitute one instrument.\n4.12.Survival. The provisions of this Agreement shall survive the expiration or earliertermination of this\nAgreement, to the extent necessary to give effect to such provisions. Such provisions include, butare not\nlimited to Section 1.2(c), 1.2(e), 2.1 and 3.\n \n4.13.Distributions to Specified Employees. Notwithstanding any provision to the contrary, to the extent\nEmployee is considered a specified employee under Section 409A of the Code and would be entitled to a\npayment by reason of his "separation from service” (as defined under Section 409A of the Code) that is not\notherwise excluded under Section 409A ofthe Code under the exceptions for short-term deferrals, separation\npay arrangements, reimbursements, in-kind distributions, or an otherwise applicable exemption, the payment\nwill not be made to Employee until the earlier ofthe six month anniversary of E mployee's date oftermination\nor Employee's death.\n4.14.Section 409A ofthe Code. It is the intention of the parties that this Agreement comply with and be\nadministered in accordance with Section 409A of the Code and the interpretive guidance thereunder, including\nthe exceptions for short-term deferrals, separation pay arrangements, reimbursements, and in-kind\ndistributions. The Agreementshall be construed and interpreted in accordance with such intent. To the extent\nsuch potential payments or benefits could become subjectto such Section, the parties shall cooperate to\namend this Agreement with the goal ofgiving Employee the economic benefits described herein in a manner\nthat does not result in such tax being imposed. In the event thatthe Corporation does not so cooperate, the\nCorporation shall indemnify Employee for any interest and additional tax arising from the application of\nSection 409A ofthe Code, grossed-up for any other income tax incurred by E mployee related to the\nindemnification (i.e., indemnification ofsuch additional income tax), assuming the highest marginal income tax\nrates apply to any taxable indemnification. Any indemnification payment shall be made within ninety (90) days\nof the date Employee makes payment of the interestand/or additional tax.\nEMPLOYEE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND EMPLOYEE\nUNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. EMPLOYEE UNDERSTANDS THAT\nTHIS AGREEMENT MAY AFFECT EMPLOYEE'S RIGHT TO ACCEPT EMPLOYMENT WITH OTHER\nCOMPANIES SUBSEQUENT TO EMPLOYEE'S EMPLOYMENT WITH THE CORPORATION.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement effective as ofthe date\nindicated below.\nEMPLOYEE MAXIMUS, Inc.\n/s/ Richard A. Montoni By /s/ David R. Francis\nRichard A. Montoni\nDate January 9, 2018 Title General Counsel	xhibit 10.2\nAMENDED AND RESTATED EMPLOYMENT, NON-COMPETE\nAND CONFIDENTIALITY AGREEMENT\n(amended and restated effective as of April 1, 2018)\nTHIS AMENDED AND RESTATED EMPLOYMENT, NON-COMPETE AND CONFIDENTIALITY\nAGREEMENT ("Agreement"), is entered into between Richard A. Montoni (the "Employee") and MAXIMUS,\nInc., a Virginia corporation with its principal place of business in Reston, Virginia (the "Corporation") with\nreference to the following:\nWHEREAS, the parties entered into that certain Executive mployment, Non-Compete and\nConfidentiality Agreement effective April 21, 2006, which was subsequently amended on November 20, 2007,\nDecember 22, 2009, October 7, 2013, and March 4, 2014 (as amended, the "Current Agreement"); and\nWHEREAS, the parties believe Employee possesses the experience and capabilities to provide\nvaluable service on behalf of the Corporation; and\nWHEREAS, the Corporation desires to employ Employee as Senior Advisor to the Chief xecutive\nOfficer; and\nWHEREAS, Employee desires to be employed by the Corporation at the salary, benefits and other\nterms and conditions specified herein; and\nWHEREAS, the parties desire to amend and restate the Current Agreement in its entirety, effective as\nof April 1, 2018 (the "Effective Date"), pursuant to the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of these premises and for other good and valuable\nconsideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:\n1.\nEmployment.\n1.1. .Duties. The Corporation hereby employs Employee, and E mployee hereby accepts such\nemployment, to serve as the Senior Advisor to the Chief xecutive Officer. mployee hereby represents and\nwarrants that he is in good health and capable of performing the services required hereunder. :mployee shall\nperform such services and duties as are delegated to E mployee by the Corporation's Board of Directors\n("Board") or the Chief Executive Officer as the designee of the Board. During the term of this Agreement,\nEmployee shal be an employee of the Corporation and shall devote such time and attention to the discharge\nof his duties as may be necessary and appropriate to accomplish and complete such duties, it being the\nunderstanding of the parties that Employee's services shall not require mployee's full time and attention and\nwill average to be approximately 50% of full-time.\nEmployee shall be nominated by the Board for election as a director holding the position of Vice\nChairman and shall serve as a member of the Board subject to his being so elected by the Corporation's\nstockholders; provided that during the term of this Agreement, Employee shall serve on the Board without\nadditiona compensation.\n1.2. 2.Compensation\n(a)Salary. As of the Effective Date, the Corporation shall pay Employee an annual salary of\n$1,000,000 ("Salary").\n(b)Bonus. During the term of this Agreement, E mployee will be eligible for discretionary bonus\nawards\nas\ndetermined\nin\nthe\nsole\ndiscretion\nof\nthe\nBoard.\nmployee,\nthe\nChairman\nof\nthe\nBoard\nand\nthe Chief Executive Officer will meet not less than quarterly and establish performance objectives for\nEmployee and incentive bonus targets as appropriate. During the term of this Agreement, E mployee\nwill not be eligible for awards under the Corporation's Management Bonus Plan and the 2017 Equity\nIncentive Plan (or successor plans) and will not participate in the Corporation's Income Continuity\nProgram. Any other compensation shall be in the sole discretion of the Compensation Committee of\nthe Corporations' Board of Directors.\n(c)E quity Awards. The Corporation agrees to proportionately adjust E mployee's vested and\nunvested equity awards in the event the Corporation declares an extraordinary dividend during the\nterm hereof. or these purposes, an "extraordinary dividend" would be any distribution per share\nhaving a value in excess of ten percent (10%) of the average trading price of the Corporation's\ncommon stock during the three-month period preceding such distribution. Notwithstanding the\nexpiration or mutual termination of this Agreement, any Restricted Stock Units or other equity awards\npreviously made to mployee on or after October 1, 2013, shall vest according to their stated vesting\nschedules (or pursuant to the acceleration feature in connection with a Change in Control). For\navoidance of doubt, vesting and settlement of such Restricted tock Units or other equity awards shal\noccur on the dates set forth in the stated vesting schedules (or pursuant to the acceleration feature in\nconnection with a Change in Control) and without regard to whether E mployee is employed by the\nCorporation on any such dates.\nd)Vacation, Insurance, E xpenses, Etc. Employee shall receive such health, disability and life\ninsurance and other benefits and expense reimbursements, including but not limited to trave and\nentertainment, in a manner consistent with the Corporation's past practices and as are provided to the\nCorporation's senior executives. The Corporation will reimburse mployee for the reasonable\nattorney's fees incurred in connection with the review and negotiation of this Agreement.\n(e)Insurance and Indemnification. The Corporation shall maintain mployee as an insured\nparty on all directors' and officers' insurance maintained by the Corporation for the benefit of its\ndirectors and officers on at least the same basis as all other covered individuals and provide Employee\nwith at least the same corporate indemnification as its officers.\n1.3.F lace of Performance. E mployee may perform the advisory services under this Agreement from\nsuch locations as are determined by E mployee, except that E mployee shall upon reasonable advance notice\nby the Board or the Chief E xecutive Officer attend such meetings at the Corporation's headquarters in eston,\nVirginia or at such other locations as may be deemed necessary and in the best interests of the Corporation.\nIn furtherance of his performance of services under this Agreement, mployee may establish or make\narrangements for office space and administrative support in such locations as Employee shall determine. The\nCorporation shall either pay directly or reimburse Employee for the reasonable costs of such office space and\nadministrative support.\n.Term; Termination. The term of the employment agreement set forth in this Section 1 shall be for\na\nperiod commencing at the ffective Date and continuing until September 30, 2019 (the "Scheduled Term")\nprovided that this Agreement shall terminate:\n(a)by mutual written consent of the parties;\n(b)upon Employee's death or inability, by reason of physical or mental impairment, to perform\nsubstantially all of Employee's duties as contemplated herein for a continuous period of 120 days or\nmore; or\n(c)by the Corporation for Cause (as defined below).\nUpon any termination of employment under this Section 1.4, neither party shall have any obligation\nto\nthe other pursuant to this Section 1, but such termination shall have no effect on the obligations of the parties\nunder other provisions of this Agreement.\nUntil the Effective Date, the Current Agreement between the parties shal remain in ful force and\neffect.\n1.5.S everance. The parties agree that in the event the Corporation terminates E mployee's employment\nwithout Cause or Employee terminates the employment for Good Reason (as defined below) prior to the\nexpiration of the Scheduled Term, Employee shall be entitled to the following:\n(a) benefits, at the Corporation's expense, as provided under ection 1.2 for the greater of\nthe remainder of the Scheduled Term or twelve (12) months. To the extent that these payments are\nnot exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the "Code") under\nthe COBRA, reimbursement, in-kind benefit, or other applicable exceptions thereunder, such payments\nshall be made at the time and in the amount required under the documents governing each such\nbenefit;\n(b)\ncontinued vesting of stock options and Restricted Stock Units as set forth in Section\n1.2(c); and\n(c) a lump sum, payable within 30 days following termination of employment, equal to the\nSalary for the remainder of the Scheduled Term, which lump sum shall be considered a separate\npayment for purposes of Section 409A of the Code.\n.Definitions. or purposes of the Agreement, "Cause" and "Good Reason" shall have the meanings\nprovided in the Corporation's Income Continuity P rogram as it exists on the execution date of this Agreement.\n2.Non-Competition.\n2.1. rohibited Activities.\n(a)E mployee agrees that, during his employment with the Corporation and for a period of one\n(1) year after the termination of such employment, E mployee will not engage in any Unethical Behavior\nwhich may adversely affect the Corporation. For the purpose of this Section 2.1, "Unethical Behavior"\nis defined as:\n(i)any attempt, successful or unsuccessful, by mployee to divert any existing or\npending contracts or subcontracts from the Corporation to any other firm, whether or not\naffiliated with E mployee;\n(ii) any attempt, successful or unsuccessful, by Employee, to influence clients of the\nCorporation or organizations with which the Corporation has an existing or pending contract or\nproposal to refrain from doing business with the Corporation or to terminate existing business\nwith the Corporation;\n(iii)any attempt, successful or unsuccessful, by Employee to offer his services, or to\ninfluence any other employee of the Corporation to offer their services, to any firm to compete\nagainst the Corporation; or\n(iv)any attempt, successful or unsuccessful, by E mployee to employ or offer\nemploymentt to, or cause any other person to employ or offer employment to any individual who\nwas an employee of the Corporation at any time during Employee's last six months of\nemployment with the Corporation.\n(b)E mployee shall notify any new employer, partner, association or any other firm or\ncorporation in competition with the Corporation with whom mployee shall become associated in any\ncapacity whatsoever of the provisions of this ection 2 and E mployee agrees that the Corporation may\ngive such notice to such firm, corporation or other person.\n2.Business Opportunities; Conflicts of Interest; Other E mployment and Activities of E mployee.\n(a)E mployee agrees promptly to advise the Corporation of, and provide the Corporation with an\nopportunity to pursue, all business opportunities of which Employee becomes aware that reasonably\nrelate to the present business conducted by the Corporation.\n(b)E mployee, in his capacity as an employee of the Corporation, shall not cause the\nCorporation to engage in any business with any member of Employee's immediate family or with any\nperson or business entity in which E mployee or any member of mployee's immediate family has any\nownership interest or financia interest, unless and until Employee has first fully disclosed such interest\nto and received written consent from the Board of Directors. As used herein, the term "immediate\nfamily" means Employee's spouse, natural or adopted children, parents or siblings and the term\n"financial interest" means any relationship with such person or business entity that may monetarily\nbenefit E mployee or member of Employee's immediate family, including any lending relationship or the\nguarantying of any obligations of such person or business entity by mployee or member of his\nimmediate family.\nThe parties hereto agree that E mployee may, consistent with this Section 2.2, continue his\ninvolvement with the Northern Virginia Technology Counse and such other trade associations, civic\norganizations and educational institutions in which he is involved as of the Effective Date and may\nengage in such other activities and business opportunities which do not interfere with E mployee's\nability to perform the duties described in Section 1.1.\nB.Confidentiality. E mployee agrees that the Corporation's books, records, files and all other non-public\ninformation relating to the Corporation, its business, clients and employees are proprietary in nature and\ncontain trade secrets and shall be held in strict confidence by Employee, and shall not, either during the term\nof\nthis\nAgreement\nor\nafter\nthe\ntermination\nhereof,\nbe\nused\nby\nEmployee\nor\ndisclosed,\ndirectly\nor\nindirectly,\nto\nany third party, except to the extent such use or disclosure is in furtherance of the Corporation's business or\nrequired by any law, rule, regulation or other legal process. The trade secrets or other proprietary or\nconfidential information referred to in the prior sentence includes, without limitation, all proposals to clients or\npotential clients, contracts, client or potential client lists, fee policies, financial information, administration or\nmarketing practices or procedures and all other information regarding the business of the Corporation and its\nclients not generally known to the public.\n4.Miscellaneous.\n1.Notices. All notices, requests, demands or other communications provided for in this Agreement\nshall be in writing and shall be delivered by hand, e-mail, sent prepaid by overnight delivery service or sent by\nthe United States mail, certified, postage prepaid, return receipt request, to the following:\nIf to the Corporation:\nMAXIMUS, Inc.\n1891 Metro Center Drive\nReston, Virginia 20190\nAttention: General Counsel\nif to Employee:\nRichard A. Montoni\nAny notice, request, demand or other communication delivered or sent in the foregoing manner shal be\ndeemed given or made (as the case may be) upon the earliest of (i) the date it is actually received, (ii) the\nbusiness-day after the day on which it is delivered by hand or sent by e-mail, (iii) the business day after the\nday on which it is properly delivered to Federal E xpress (or a comparable overnight delivery service), or (iv)\nthe third business day after the date on which it is deposited in the United States mail. E ither party may\nchange its address by notifying the other party of the new address in any manner permitted by this paragraph.\nRemedies. The parties agree and acknowledge that any violation by mployee of the terms hereof\nmay result in irreparable injury and damage to the Corporation or its clients, which may not adequately be\ncompensable in monetary damages, that the Corporation wil have no adequate remedy at law therefor, and\nthat the Corporation may obtain such preliminary, temporary or permanent mandatory or restraining\ninjunctions, orders or decrees as may be necessary to protect it against, or on account of, any breach of the\nprovisions contained in this Agreement.\n4.3.No Obligation of Continued E mployment E mployee understands that this Agreement does not\ncreate an obligation on the part of the Corporation to continue Employee's employment with the Corporation\nafter the expiration or termination of this Agreement.\n4.4. Benefit; Assignment. This Agreement shall bind and inure to the benefit of the parties and their\nrespective personal representatives, heirs, successors and assigns, provided this Agreement may not be\nassigned by either party without the consent of the other, except that the Corporation may assign this\nAgreement in connection with the merger, consolidation or sale of all or substantially all of its business or\nassets.\n4.5. ntire Agreement This Agreement supersedes all prior agreements, written or oral, with respect to\nthe subject matter of this Agreement, other than the Current Agreement, which shall remain in ful force and\neffect until the Effective Date.\n4.6.5 Severability. In the event that any one or more of the provisions contained herein shall be held to\nbe invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect\nany other provisions of this Agreement, and all other provisions shall remain in full force and effect. If any of\nthe provisions of this Agreement is held to be excessively broad, it shall be reformed and construed by limiting\nand reducing it SO as to be enforceable to the maximum extent permitted by law.\n.Waivers. No delay or omission by the Corporation in exercising any right under this Agreement will\noperate as a waiver of that or any other right. A waiver or consent given by the Corporation on any occasion is\neffective only in that instance and will not be construed as a bar to or waiver of any right on any other\noccasion.\n8.Captions. The captions of the various sections and paragraphs of this Agreement have been\ninserted only for the purpose of convenience; such captions are not a part of this Agreement and shall not be\ndeemed in any manner to modify, explain, enlarge or restrict any of the provisions of this Agreement.\nGoverning Law and urisdiction. This Agreement shall in all events and for all purposes be\ngoverned by, and construed in accordance with, the laws of the Commonwealth of Virginia. Any action\nor\nproceeding against the parties relating in any way to this Agreement must be brought and enforced in the\ncourts of Fairfax County, Virginia or the Northern District of Virginia, and the parties irrevocably submit to the\njurisdiction of such courts in respect of any such action or proceeding.\n.10.Amendments. No changes to this Agreement shall be binding unless in writing and signed by both\nthe parties.\n1.Counterparts. This Agreement may be executed in several counterparts, each of which shall be\ndeemed an original, and all such counterparts shall constitute one instrument.\n.12.Survival The provisions of this Agreement shall survive the expiration or earlier termination of this\nAgreement, to the extent necessary to give effect to such provisions. Such provisions include, but are not\nlimited to Section 1.2(c), 1.2(e), 2.1 and 3.\n13.Distributions to Specified Employees. Notwithstanding any provision to the contrary, to the extent\nEmployee is considered a specified employee under Section 409A of the Code and would be entitled to a\npayment\nby\nreason\nof\nhis\n"separation\nfrom\nservice"\n(as\ndefined\nunder\nSection\n409A\nof\nthe\nCode)\nthat\nis\nnot\notherwise excluded under Section 409A of the Code under the exceptions for short-term deferrals, separation\npay arrangements, reimbursements in-kind distributions, or an otherwise applicable exemption, the payment\nwill not be made to Employee until the earlier of the six month anniversary of E mployee's date of termination\nor E mployee's death.\n.14.Section 409A of the Code. it is the intention of the parties that this Agreement comply with and be\nadministered in accordance with Section 409A of the Code and the interpretive guidance thereunder, including\nthe exceptions for short-term deferrals, separation pay arrangements, reimbursements, and in-kind\ndistributions. The Agreement shall be construed and interpreted in accordance with such intent. To the extent\nsuch potential payments or benefits could become subject to such Section, the parties shall cooperate to\namend this Agreement with the goal of giving E mployee the economic benefits described herein in a manner\nthat does not result in such tax being imposed. In the event that the Corporation does not so cooperate, the\nCorporation shal indemnify Employee for any interest and additiona tax arising from the application of\nSection 409A of the Code, grossed-up for any other income tax incurred by E mployee related to the\nindemnification (i.e., indemnification of such additional income tax), assuming the highest marginal income tax\nrates apply to any taxable indemnification. Any indemnification payment shall be made within ninety (90) days\nof the date mployee makes payment of the interest and/or additional tax.\nEMPLOYEE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND EMPLOYEE\nUNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. EMPLOYEE UNDERSTANDS THAT\nTHIS AGREEMENT MAY AFFECT EMPLOYEE'S RIGHT TO ACCEPT EMPLOYMENT WITH OTHER\nCOMPANIES SUBSEQUENT TO EMPLOYEE'S EMPLOYMENT WITH THE CORPORATION.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement effective as of the date\nindicated below.\nEMPLOYEE\nMAXIMUS, Inc.\n/s/ Richard A. Montoni\nBy /s/ David R. Francis\nRichard A. Montoni\nDate J anuary 9, 2018\nTitle General Counsel	Exhibit 10.2\nAMENDED AND RESTATED EMPLOYMENT, NON-COMPETE\nAND CONFIDENTIALITY AGREEMENT\n(amended and restated effective as of April 1, 2018)\nTHIS AMENDED AND RESTATED EMPLOYMENT, NON-COMPETE AND CONFIDENTIALITY\nAGREEMENT ("Agreement"), is entered into between Richard A. Montoni (the "Employee") and MAXIMUS,\nInc., a Virginia corporation with its principal place of business in Reston, Virginia (the "Corporation") with\nreference to the following:\nWHEREAS, the parties entered into that certain Executive Employment, Non-Compete and\nConfidentiality Agreement effective April 21, 2006, which was subsequently amended on November 20, 2007,\nDecember 22, 2009, October 7, 2013, and March 4, 2014 (as amended, the “Current Agreement”); and\nWHEREAS, the parties believe Employee possesses the experience and capabilities to provide\nvaluable service on behalf of the Corporation; and\nWHEREAS, the Corporation desires to employ Employee as Senior Advisor to the Chief Executive\nOfficer; and\nWHEREAS, Employee desires to be employed by the Corporation at the salary, benefits and other\nterms and conditions specified herein; and\nWHEREAS, the parties desire to amend and restate the Current Agreement in its entirety, effective as\nof April 1, 2018 (the “Effective Date”), pursuant to the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of these premises and for other good and valuable\nconsideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:\n1.\nEmployment.\n1.1.Duties. The Corporation hereby employs Employee, and Employee hereby accepts such\nemployment, to serve as the Senior Advisor to the Chief Executive Officer. Employee hereby represents and\nwarrants that he is in good health and capable of performing the services required hereunder. Employee shall\nperform such services and duties as are delegated to Employee by the Corporation’s Board of Directors\n(“Board”) or the Chief Executive Officer as the designee of the Board. During the term of this Agreement,\nEmployee shall be an employee of the Corporation and shall devote such time and attention to the discharge\nof his duties as may be necessary and appropriate to accomplish and complete such duties, it being the\nunderstanding of the parties that Employee’s services shall not require Employee’s full time and attention and\nwill average to be approximately 50% of full-time.\nEmployee shall be nominated by the Board for election as a director holding the position of Vice\nChairman and shall serve as a member of the Board subject to his being so elected by the Corporation's\nstockholders; provided that, during the term of this Agreement, Employee shall serve on the Board without\nadditional compensation.\n1.2.Compensation.\n(a)Salary. As of the Effective Date, the Corporation shall pay Employee an annual salary of\n$1,000,000 ("Salary").\n(b)Bonus. During the term of this Agreement, Employee will be eligible for discretionary bonus\nawards as determined in the sole discretion of the Board. Employee, the Chairman of the Board and\nthe Chief Executive Officer will meet not less than quarterly and establish performance objectives for\nEmployee and incentive bonus targets as appropriate. During the term of this Agreement, Employee\nwill not be eligible for awards under the Corporation’s Management Bonus Plan and the 2017 Equity\nIncentive Plan (or successor plans) and will not participate in the Corporation’s Income Continuity\nProgram. Any other compensation shall be in the sole discretion of the Compensation Committee of\nthe Corporations’ Board of Directors.\n(c)Equity Awards. The Corporation agrees to proportionately adjust Employee’s vested and\nunvested equity awards in the event the Corporation declares an extraordinary dividend during the\nterm hereof. For these purposes, an “extraordinary dividend” would be any distribution per share\nhaving a value in excess of ten percent (10%) of the average trading price of the Corporation’s\ncommon stock during the three-month period preceding such distribution. Notwithstanding the\nexpiration or mutual termination of this Agreement, any Restricted Stock Units or other equity awards\npreviously made to Employee on or after October 1, 2013, shall vest according to their stated vesting\nschedules (or pursuant to the acceleration feature in connection with a Change in Control). For\navoidance of doubt, vesting and settlement of such Restricted Stock Units or other equity awards shall\noccur on the dates set forth in the stated vesting schedules (or pursuant to the acceleration feature in\nconnection with a Change in Control) and without regard to whether Employee is employed by the\nCorporation on any such dates.\n(d)Vacation, Insurance, Expenses, Etc. Employee shall receive such health, disability and life\ninsurance and other benefits and expense reimbursements, including but not limited to travel and\nentertainment, in a manner consistent with the Corporation's past practices and as are provided to the\nCorporation’s senior executives. The Corporation will reimburse Employee for the reasonable\nattorney’s fees incurred in connection with the review and negotiation of this Agreement.\n(e)Insurance and Indemnification. The Corporation shall maintain Employee as an insured\nparty on all directors' and officers' insurance maintained by the Corporation for the benefit of its\ndirectors and officers on at least the same basis as all other covered individuals and provide Employee\nwith at least the same corporate indemnification as its officers.\n1.3.Place of Performance. Employee may perform the advisory services under this Agreement from\nsuch locations as are determined by Employee, except that Employee shall upon reasonable advance notice\nby the Board or the Chief Executive Officer attend such meetings at the Corporation’s headquarters in Reston,\nVirginia or at such other locations as may be deemed necessary and in the best interests of the Corporation.\nIn furtherance of his performance of services under this Agreement, Employee may establish or make\narrangements for office space and administrative support in such locations as Employee shall determine. The\nCorporation shall either pay directly or reimburse Employee for the reasonable costs of such office space and\nadministrative support.\n1.4.Term; Termination. The term of the employment agreement set forth in this Section 1 shall be for a\nperiod commencing at the Effective Date and continuing until September 30, 2019 (the "Scheduled Term")\nprovided that this Agreement shall terminate:\n(a)by mutual written consent of the parties;\n(b)upon Employee's death or inability, by reason of physical or mental impairment, to perform\nsubstantially all of Employee's duties as contemplated herein for a continuous period of 120 days or\nmore; or\n(c)by the Corporation for Cause (as defined below).\nUpon any termination of employment under this Section 1.4, neither party shall have any obligation to\nthe other pursuant to this Section 1, but such termination shall have no effect on the obligations of the parties\nunder other provisions of this Agreement.\nUntil the Effective Date, the Current Agreement between the parties shall remain in full force and\neffect.\n1.5.Severance. The parties agree that in the event the Corporation terminates Employee's employment\nwithout Cause or Employee terminates the employment for Good Reason (as defined below) prior to the\nexpiration of the Scheduled Term, Employee shall be entitled to the following:\n(a) benefits, at the Corporation's expense, as provided under Section 1.2 for the greater of\nthe remainder of the Scheduled Term or twelve (12) months. To the extent that these payments are\nnot exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) under\nthe COBRA, reimbursement, in-kind benefit, or other applicable exceptions thereunder, such payments\nshall be made at the time and in the amount required under the documents governing each such\nbenefit;\n(b) continued vesting of stock options and Restricted Stock Units as set forth in Section\n1.2(c); and\n(c) a lump sum, payable within 30 days following termination of employment, equal to the\nSalary for the remainder of the Scheduled Term, which lump sum shall be considered a separate\npayment for purposes of Section 409A of the Code.\n1.6.Definitions. For purposes of the Agreement, “Cause” and “Good Reason” shall have the meanings\nprovided in the Corporation’s Income Continuity Program as it exists on the execution date of this Agreement.\n2.Non-Competition.\n2.1.Prohibited Activities.\n(a)Employee agrees that, during his employment with the Corporation and for a period of one\n(1) year after the termination of such employment, Employee will not engage in any Unethical Behavior\nwhich may adversely affect the Corporation. For the purpose of this Section 2.1, "Unethical Behavior"\nis defined as:\n(i)any attempt, successful or unsuccessful, by Employee to divert any existing or\npending contracts or subcontracts from the Corporation to any other firm, whether or not\naffiliated with Employee;\n(ii)any attempt, successful or unsuccessful, by Employee, to influence clients of the\nCorporation or organizations with which the Corporation has an existing or pending contract or\nproposal to refrain from doing business with the Corporation or to terminate existing business\nwith the Corporation;\n(iii)any attempt, successful or unsuccessful, by Employee to offer his services, or to\ninfluence any other employee of the Corporation to offer their services, to any firm to compete\nagainst the Corporation; or\n(iv)any attempt, successful or unsuccessful, by Employee to employ or offer\nemployment to, or cause any other person to employ or offer employment to any individual who\nwas an employee of the Corporation at any time during Employee’s last six months of\nemployment with the Corporation.\n(b)Employee shall notify any new employer, partner, association or any other firm or\ncorporation in competition with the Corporation with whom Employee shall become associated in any\ncapacity whatsoever of the provisions of this Section 2 and Employee agrees that the Corporation may\ngive such notice to such firm, corporation or other person.\n2.2.Business Opportunities; Conflicts of Interest; Other Employment and Activities of Employee.\n(a)Employee agrees promptly to advise the Corporation of, and provide the Corporation with an\nopportunity to pursue, all business opportunities of which Employee becomes aware that reasonably\nrelate to the present business conducted by the Corporation.\n(b)Employee, in his capacity as an employee of the Corporation, shall not cause the\nCorporation to engage in any business with any member of Employee's immediate family or with any\nperson or business entity in which Employee or any member of Employee's immediate family has any\nownership interest or financial interest, unless and until Employee has first fully disclosed such interest\nto and received written consent from the Board of Directors. As used herein, the term "immediate\nfamily" means Employee's spouse, natural or adopted children, parents or siblings and the term\n"financial interest" means any relationship with such person or business entity that may monetarily\nbenefit Employee or member of Employee's immediate family, including any lending relationship or the\nguarantying of any obligations of such person or business entity by Employee or member of his\nimmediate family.\n(c)The parties hereto agree that Employee may, consistent with this Section 2.2, continue his\ninvolvement with the Northern Virginia Technology Counsel and such other trade associations, civic\norganizations and educational institutions in which he is involved as of the Effective Date and may\nengage in such other activities and business opportunities which do not interfere with Employee’s\nability to perform the duties described in Section 1.1 .\n3.Confidentiality. Employee agrees that the Corporation's books, records, files and all other non-public\ninformation relating to the Corporation, its business, clients and employees are proprietary in nature and\ncontain trade secrets and shall be held in strict confidence by Employee, and shall not, either during the term\nof this Agreement or after the termination hereof, be used by Employee or disclosed, directly or indirectly, to\nany third party, except to the extent such use or disclosure is in furtherance of the Corporation's business or\nrequired by any law, rule, regulation or other legal process. The trade secrets or other proprietary or\nconfidential information referred to in the prior sentence includes, without limitation, all proposals to clients or\npotential clients, contracts, client or potential client lists, fee policies, financial information, administration or\nmarketing practices or procedures and all other information regarding the business of the Corporation and its\nclients not generally known to the public.\n4.Miscellaneous.\n4.1.Notices. All notices, requests, demands or other communications provided for in this Agreement\nshall be in writing and shall be delivered by hand, e-mail, sent prepaid by overnight delivery service or sent by\nthe United States mail, certified, postage prepaid, return receipt request, to the following:\nIf to the Corporation:\nMAXIMUS, Inc.\n1891 Metro Center Drive\nReston, Virginia 20190\nAttention: General Counsel\nIf to Employee:\nRichard A. Montoni\nAny notice, request, demand or other communication delivered or sent in the foregoing manner shall be\ndeemed given or made (as the case may be) upon the earliest of (i) the date it is actually received, (ii) the\nbusiness-day after the day on which it is delivered by hand or sent by e-mail, (iii) the business day after the\nday on which it is properly delivered to Federal Express (or a comparable overnight delivery service), or (iv)\nthe third business day after the date on which it is deposited in the United States mail. Either party may\nchange its address by notifying the other party of the new address in any manner permitted by this paragraph.\n4.2.Remedies. The parties agree and acknowledge that any violation by Employee of the terms hereof\nmay result in irreparable injury and damage to the Corporation or its clients, which may not adequately be\ncompensable in monetary damages, that the Corporation will have no adequate remedy at law therefor, and\nthat the Corporation may obtain such preliminary, temporary or permanent mandatory or restraining\ninjunctions, orders or decrees as may be necessary to protect it against, or on account of, any breach of the\nprovisions contained in this Agreement.\n4.3.No Obligation of Continued Employment. Employee understands that this Agreement does not\ncreate an obligation on the part of the Corporation to continue Employee's employment with the Corporation\nafter the expiration or termination of this Agreement.\n4.4.Benefit; Assignment. This Agreement shall bind and inure to the benefit of the parties and their\nrespective personal representatives, heirs, successors and assigns, provided this Agreement may not be\nassigned by either party without the consent of the other, except that the Corporation may assign this\nAgreement in connection with the merger, consolidation or sale of all or substantially all of its business or\nassets.\n4.5.Entire Agreement. This Agreement supersedes all prior agreements, written or oral, with respect to\nthe subject matter of this Agreement, other than the Current Agreement, which shall remain in full force and\neffect until the Effective Date.\n4.6.Severability. In the event that any one or more of the provisions contained herein shall be held to\nbe invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect\nany other provisions of this Agreement, and all other provisions shall remain in full force and effect. If any of\nthe provisions of this Agreement is held to be excessively broad, it shall be reformed and construed by limiting\nand reducing it so as to be enforceable to the maximum extent permitted by law.\n4.7.Waivers. No delay or omission by the Corporation in exercising any right under this Agreement will\noperate as a waiver of that or any other right. A waiver or consent given by the Corporation on any occasion is\neffective only in that instance and will not be construed as a bar to or waiver of any right on any other\noccasion.\n4.8.Captions. The captions of the various sections and paragraphs of this Agreement have been\ninserted only for the purpose of convenience; such captions are not a part of this Agreement and shall not be\ndeemed in any manner to modify, explain, enlarge or restrict any of the provisions of this Agreement.\n4.9.Governing Law and Jurisdiction. This Agreement shall in all events and for all purposes be\ngoverned by, and construed in accordance with, the laws of the Commonwealth of Virginia. Any action or\nproceeding against the parties relating in any way to this Agreement must be brought and enforced in the\ncourts of Fairfax County, Virginia or the Northern District of Virginia, and the parties irrevocably submit to the\njurisdiction of such courts in respect of any such action or proceeding.\n4.10.Amendments. No changes to this Agreement shall be binding unless in writing and signed by both\nthe parties.\n4.11 .Counterparts. This Agreement may be executed in several counterparts, each of which shall be\ndeemed an original, and all such counterparts shall constitute one instrument.\n4.12.Survival. The provisions of this Agreement shall survive the expiration or earlier termination of this\nAgreement, to the extent necessary to give effect to such provisions. Such provisions include, but are not\nlimited to Section 1.2(c), 1.2(e), 2.1 and 3.\n4.13.Distributions to Specified Employees. Notwithstanding any provision to the contrary, to the extent\nEmployee is considered a specified employee under Section 409A of the Code and would be entitled to a\npayment by reason of his “separation from service” (as defined under Section 409A of the Code) that is not\notherwise excluded under Section 409A of the Code under the exceptions for short-term deferrals, separation\npay arrangements, reimbursements, in-kind distributions, or an otherwise applicable exemption, the payment\nwill not be made to Employee until the earlier of the six month anniversary of Employee's date of termination\nor Employee's death.\n4.14 .Section 409A of the Code. It is the intention of the parties that this Agreement comply with and be\nadministered in accordance with Section 409A of the Code and the interpretive guidance thereunder, including\nthe exceptions for short-term deferrals, separation pay arrangements, reimbursements, and in-kind\ndistributions. The Agreement shall be construed and interpreted in accordance with such intent. To the extent\nsuch potential payments or benefits could become subject to such Section, the parties shall cooperate to\namend this Agreement with the goal of giving Employee the economic benefits described herein in a manner\nthat does not result in such tax being imposed. In the event that the Corporation does not so cooperate, the\nCorporation shall indemnify Employee for any interest and additional tax arising from the application of\nSection 409A of the Code, grossed-up for any other income tax incurred by Employee related to the\nindemnification (i.e ., indemnification of such additional income tax), assuming the highest marginal income tax\nrates apply to any taxable indemnification. Any indemnification payment shall be made within ninety (90) days\nof the date Employee makes payment of the interest and/or additional tax.\nEMPLOYEE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND EMPLOYEE\nUNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. EMPLOYEE UNDERSTANDS THAT\nTHIS AGREEMENT MAY AFFECT EMPLOYEE'S RIGHT TO ACCEPT EMPLOYMENT WITH OTHER\nCOMPANIES SUBSEQUENT TO EMPLOYEE'S EMPLOYMENT WITH THE CORPORATION.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement effective as of the date\nindicated below.\nEMPLOYEE\nMAXIMUS, Inc.\n/s/ Richard A. Montoni\nBy /s/ David R. Francis\nRichard A. Montoni\nDate January 9, 2018\nTitle General Counsel
+a690a18d80e339c882febf1b56eda53d.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 14 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nAdams, Harkness & Hill, Inc\n60 State Street\nBoston, MA 62109\n(617) 371-3700\nConfidential\nMay 8, 2002\nAllan Routh\nPresident and CEO\nSunrich Foods\n3824 Southwest 93rd Street\nHope, MN 56046\nLadies and Gentlemen:\nAdams, Harkness & Hill, Inc. (“AH&H”), on behalf of and as exclusive, retained advisor to Opta Food Ingredients, Inc., a Delaware\ncorporation (the “Company”), and the Company are prepared to furnish you with certain publicly available and material non-public information\ndescribing the Company in connection with your consideration of a possible negotiated transaction with the Company. As a condition to our\ndisclosure of the identity of the Company and furnishing such publicly available and material non-public information you agree, on behalf of your\ndirectors, officers, employees, affiliates, advisors and agents (your “Representatives”) to the terms of this Agreement:\n1. Definition of Confidential Information. In the context of this Agreement, Confidential Information shall mean (i) the identity of the\nCompany; (ii) any information, written or oral, whether prepared by AH&H, the Company, its advisors, agents or otherwise that is to be, or has been,\nfurnished by or on behalf of the Company in accordance with the provisions of this letter; and (iii) your consideration of a possible negotiated\ntransaction with the Company.\n2. Use of Confidential Information. You hereby agree that the Confidential Information will be used solely for the purpose of evaluating a\npossible negotiated transaction between you and the Company and not in any way directly or indirectly detrimental to the Company. Unless\notherwise required by law, you and your Representatives will not disclose the Confidential Information, without the prior written consent of the\nCompany, to any person (including any corporation, company, partnership, or individual) and will limit the dissemination of the Confidential\nInformation to your Representatives who need to know the information for the sole purpose of evaluating a possible negotiated transaction with the\nCompany. You shall be fully liable for any breach of this Agreement by any of your Representatives. You further agree to treat the Confidential\nInformation in the same manner as you treat confidential information of a similar nature. You also agree that you will inform each of your\nRepresentatives who will receive Confidential Information of your obligations under this letter. This paragraph shall be broadly interpreted to\nprohibit, without limitation, any discussions with potential co-bidders or other transaction partners without the prior written consent of the Company.\n3. No Contacts with the Company. You agree that, at the conclusion of your review of the Confidential Information, or within three\nbusiness days of the Company’s request, you and your Representatives shall redeliver to AH&H all copies of the Confidential Information in any\nform whatsoever (including without limitation any reports, memoranda or other material prepared by you or your Representatives). Unless consented\nto in advance in writing by the Chief Executive Officer of the Company, for a period of one year after the date hereof, you shall not, and you shall\nnot permit any Representative of yours to, directly or indirectly, solicit any Company personnel with whom you or any Representative of yours has\ncontact in connection with discussions or negotiations regarding a possible negotiated transaction to leave the employ of the Company or to accept\nemployment by you or any affiliate of yours or have any discussions with any such person regarding such cessation of employment or re-\nemployment.\n1\n4. Agreement to Standstill. You agree that, for a period of eighteen months from the date of this agreement (the “Standstill Period”), unless\nspecifically invited in writing by us or the Company, neither you nor any of your Representatives, acting on your behalf, will in any manner, directly\nor indirectly, (a) other than through a confidential offer directed to the Company, effect or seek offer or propose to effect, or cause or participate in or\nin any way assist any other person to effect or seek, offer or propose to effect or participate in, (i) any acquisition of any securities (or beneficial\nownership thereof) or assets of the Company; (ii) any tender or exchange offer, merger or other business combination involving the Company; (iii)\nany recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company; or (iv) any “solicitation”\nof “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the\nother party; (b) from, join or in any way participate in a “group” (as defined under the Securities Exchange Act of 1934, as amended) with respect to\nthe Company; (c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the\nCompany; (d) take any action that might force the Company to make a public announcement regarding any of the types of matters set forth in (a)\nabove; or (e) enter into any discussion or arrangements with any third party with respect to any of the foregoing. Notwithstanding the foregoing, if\nduring the Standstill Period, any third party shall publicly announce and thereafter commence a tender or exchange offer which, if consummated,\nwould give such third party ownership of 50% or more of the outstanding shares of the Company (a “Third Party Offer”), you shall be entitled to\ncommence a tender offer (a “Competing Offer”) for at least the same number of shares (provided that the Competing Offer provides for a second-\nstep merger yielding a blended purchase price per share which is at least equal to the purchase price per share offered by the third party in the Third\nParty Offer and in any subsequent second-step merger or acquisition transaction if one is proposed by such third party) and to purchase shares\npursuant to such Competing Offer.\n5. Subpoena or Other Order. In the event that you or your Representatives receive a request to disclose all or any part of the Confidential\nInformation under the terms of a valid and effective subpoena or other order issued by a court having jurisdiction or by a governmental body, or, in\naccordance with the written legal opinion of your counsel, by any federal or state law or regulation, you agree that you will promptly notify AH&H\nand the Company of the existence, terms and circumstances surrounding such a request, so that the Company may seek an appropriate protective\norder or other remedy and/or waive your compliance with the provisions of this Agreement. If disclosure of such information is required in the\nwritten opinion of your counsel, you agree that you will exercise reasonable efforts to obtain an order or other reliable assurance that confidential\ntreatment will be accorded to such of the disclosed information which we or the Company so designates.\n6. No Representation as to Accuracy. You understand that neither AH&H, the Company nor any of their respective agents or employees\nhas made or makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information. Neither\nAH&H nor the Company shall have any liability to anyone resulting from the use of any Confidential Information (or any errors therein or omissions\ntherefrom), except as provided in any definitive acquisition or other agreement between the Company and you.\n7. No Binding Agreement for Transaction Herein. You agree that unless and until a definitive agreement between the Company and you\nwith respect to any transaction involving the Company has been executed and delivered, neither the Company nor you will be under any legal\nobligation of any kind whatsoever with respect to such a transaction by virtue of this letter or any other written or oral expression with respect to\nsuch a transaction by any of the directors, officers, employees, representatives, advisors, or agents of the Company except, in the case of this\nAgreement, for the matters specifically agreed to herein.\n8. Remedies. You agree that money damages would not be a sufficient remedy for any breach of the agreements contained in this letter by\nyou or your Representatives, and that the Company shall be entitled to specific performance and injunctive relief as remedies for any such breach or\nthreatened breach. Such remedies shall not be considered to be the exclusive remedies for any such breach or threatened breach, but shall be in\naddition to all other remedies available at law or equity to the Company.\n2\n9. Entire Agreement. This Agreement constitutes the entire understanding of the parties hereto with respect to the subject matter hereof and\nsupersedes all prior agreements and understandings with respect thereto.\n10. Jurisdiction. This Confidentiality Agreement is being executed by AH&H in the Commonwealth of Massachusetts and it is understood\nthat AH&H will perform its services hereunder in that jurisdiction. Accordingly, this Confidentiality Agreement and all questions relating to its\nvalidity, interpretation, performance, and enforcement shall be governed by and construed, interpreted, and enforced in accordance with the internal\nlaws, and not the law of conflicts of law, of the Commonwealth of Massachusetts. To the extent that a court of competent jurisdiction determines that\nany provision or provisions contained herein are not enforceable, such provision or provisions shall be limited to the maximum extent enforceable\nunder applicable law.\n11. Termination. The provisions relating to confidentiality contained in this letter shall terminate upon the earlier of (a) five years from the\ndate hereof, (b) the execution of a separate agreement addressing the confidential use of non-public information specifically superceding this\nAgreement, or (c) if you enter into a negotiated transaction with the Company, as of the date such transaction is consummated.\nIf you agree with and accept the foregoing, please sign and return one copy of this Agreement, which will constitute our agreement with respect to\nthe subject matter of this letter.\nVery truly yours,\nADAMS, HARKNESS & HILL, INC.\nBy: /S/ DAVID THIBODEAU\nDavid Thibodeau\nPrincipal\nACCEPTED AND AGREED:\nSUNRICH FOODS\nBy: /S/ ALLAN ROUTH\nName: Allan Routh\nTitle President/CEO\nDate: May 8, 2002\n3	EX-99.(D)(3) 14 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nAdams, Harkness & Hill, Inc\n60 State Street\nBoston, MA 62109\n(617) 371-3700\nConfidential\nMay 8, 2002\nAllan Routh\nPresident and CEO\nSunrich Foods\n3824 Southwest 93" Street\nHope, MN 56046\nLadies and Gentlemen:\nAdams, Harkness & Hill, Inc. (“AH&H?”), on behalf of and as exclusive, retained advisor to Opta Food Ingredients, Inc., a Delaware\ncorporation (the “Company”), and the Company are prepared to furnish you with certain publicly available and material non-public information\ndescribing the Company in connection with your consideration of a possible negotiated transaction with the Company. As a condition to our\ndisclosure of the identity of the Company and furnishing such publicly available and material non-public information you agree, on behalf of your\ndirectors, officers, employees, affiliates, advisors and agents (your “Representatives™) to the terms of this Agreement:\n1. Definition of Confidential Information. In the context of this Agreement, Confidential Information shall mean (i) the identity of the\nCompany; (ii) any information, written or oral, whether prepared by AH&H, the Company, its advisors, agents or otherwise that is to be, or has been,\nfurnished by or on behalf of the Company in accordance with the provisions of this letter; and (iii) your consideration of a possible negotiated\ntransaction with the Company.\n2. Use of Confidential Information. You hereby agree that the Confidential Information will be used solely for the purpose of evaluating a\npossible negotiated transaction between you and the Company and not in any way directly or indirectly detrimental to the Company. Unless\notherwise required by law, you and your Representatives will not disclose the Confidential Information, without the prior written consent of the\nCompany, to any person (including any corporation, company, partnership, or individual) and will limit the dissemination of the Confidential\nInformation to your Representatives who need to know the information for the sole purpose of evaluating a possible negotiated transaction with the\nCompany. You shall be fully liable for any breach of this Agreement by any of your Representatives. You further agree to treat the Confidential\nInformation in the same manner as you treat confidential information of a similar nature. You also agree that you will inform each of your\nRepresentatives who will receive Confidential Information of your obligations under this letter. This paragraph shall be broadly interpreted to\nprohibit, without limitation, any discussions with potential co-bidders or other transaction partners without the prior written consent of the Company.\n3. No Contacts with the Company. You agree that, at the conclusion of your review of the Confidential Information, or within three\nbusiness days of the Company’s request, you and your Representatives shall redeliver to AH&H all copies of the Confidential Information in any\nform whatsoever (including without limitation any reports, memoranda or other material prepared by you or your Representatives). Unless consented\nto in advance in writing by the Chief Executive Officer of the Company, for a period of one year after the date hereof, you shall not, and you shall\nnot permit any Representative of yours to, directly or indirectly, solicit any Company personnel with whom you or any Representative of yours has\ncontact in connection with discussions or negotiations regarding a possible negotiated transaction to leave the employ of the Company or to accept\nemployment by you or any affiliate of yours or have any discussions with any such person regarding such cessation of employment or re-\nemployment.\n4. Agreement to Standstill. You agree that, for a period of eighteen months from the date of this agreement (the “Standstill Period”), unless\nspecifically invited in writing by us or the Company, neither you nor any of your Representatives, acting on your behalf, will in any manner, directly\nor indirectly, (a) other than through a confidential offer directed to the Company, effect or seek offer or propose to effect, or cause or participate in or\nin any way assist any other person to effect or seek, offer or propose to effect or participate in, (i) any acquisition of any securities (or beneficial\nownership thereof) or assets of the Company; (ii) any tender or exchange offer, merger or other business combination involving the Company; (iii)\nany recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company; or (iv) any “solicitation”\nof “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the\nother party; (b) from, join or in any way participate in a “group” (as defined under the Securities Exchange Act of 1934, as amended) with respect to\nthe Company; (c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the\nCompany; (d) take any action that might force the Company to make a public announcement regarding any of the types of matters set forth in (a)\nabove; or (e) enter into any discussion or arrangements with any third party with respect to any of the foregoing. Notwithstanding the foregoing, if\nduring the Standstill Period, any third party shall publicly announce and thereafter commence a tender or exchange offer which, if consummated,\nwould give such third party ownership of 50% or more of the outstanding shares of the Company (a “Third Party Offer”), you shall be entitled to\ncommence a tender offer (a “Competing Offer”) for at least the same number of shares (provided that the Competing Offer provides for a second-\nstep merger yielding a blended purchase price per share which is at least equal to the purchase price per share offered by the third party in the Third\nParty Offer and in any subsequent second-step merger or acquisition transaction if one is proposed by such third party) and to purchase shares\npursuant to such Competing Offer.\n5. Subpoena or Other Order. In the event that you or your Representatives receive a request to disclose all or any part of the Confidential\nInformation under the terms of a valid and effective subpoena or other order issued by a court having jurisdiction or by a governmental body, or, in\naccordance with the written legal opinion of your counsel, by any federal or state law or regulation, you agree that you will promptly notify AH&H\nand the Company of the existence, terms and circumstances surrounding such a request, so that the Company may seek an appropriate protective\norder or other remedy and/or waive your compliance with the provisions of this Agreement. If disclosure of such information is required in the\nwritten opinion of your counsel, you agree that you will exercise reasonable efforts to obtain an order or other reliable assurance that confidential\ntreatment will be accorded to such of the disclosed information which we or the Company so designates.\n6. No Representation as to Accuracy. You understand that neither AH&H, the Company nor any of their respective agents or employees\nhas made or makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information. Neither\nAH&H nor the Company shall have any liability to anyone resulting from the use of any Confidential Information (or any errors therein or omissions\ntherefrom), except as provided in any definitive acquisition or other agreement between the Company and you.\n7. No Binding Agreement for Transaction Herein. You agree that unless and until a definitive agreement between the Company and you\nwith respect to any transaction involving the Company has been executed and delivered, neither the Company nor you will be under any legal\nobligation of any kind whatsoever with respect to such a transaction by virtue of this letter or any other written or oral expression with respect to\nsuch a transaction by any of the directors, officers, employees, representatives, advisors, or agents of the Company except, in the case of this\nAgreement, for the matters specifically agreed to herein.\n8. Remedies. You agree that money damages would not be a sufficient remedy for any breach of the agreements contained in this letter by\nyou or your Representatives, and that the Company shall be entitled to specific performance and injunctive relief as remedies for any such breach or\nthreatened breach. Such remedies shall not be considered to be the exclusive remedies for any such breach or threatened breach, but shall be in\naddition to all other remedies available at law or equity to the Company.\n9. Entire Agreement. This Agreement constitutes the entire understanding of the parties hereto with respect to the subject matter hereof and\nsupersedes all prior agreements and understandings with respect thereto.\n10. Jurisdiction. This Confidentiality Agreement is being executed by AH&H in the Commonwealth of Massachusetts and it is understood\nthat AH&H will perform its services hereunder in that jurisdiction. Accordingly, this Confidentiality Agreement and all questions relating to its\nvalidity, interpretation, performance, and enforcement shall be governed by and construed, interpreted, and enforced in accordance with the internal\nlaws, and not the law of conflicts of law, of the Commonwealth of Massachusetts. To the extent that a court of competent jurisdiction determines that\nany provision or provisions contained herein are not enforceable, such provision or provisions shall be limited to the maximum extent enforceable\nunder applicable law.\n11. Termination. The provisions relating to confidentiality contained in this letter shall terminate upon the earlier of (a) five years from the\ndate hereof, (b) the execution of a separate agreement addressing the confidential use of non-public information specifically superceding this\nAgreement, or (c) if you enter into a negotiated transaction with the Company, as of the date such transaction is consummated.\nIf you agree with and accept the foregoing, please sign and return one copy of this Agreement, which will constitute our agreement with respect to\nthe subject matter of this letter.\nVery truly yours,\nADAMS, HARKNESS & HILL, INC.\nBy: /s/ DAVID THIBODEAU\nDavid Thibodeau\nPrincipal\nACCEPTED AND AGREED:\nSUNRICH FOODS\nBy: /s/ ALLAN ROUTH\nName: Allan Routh\nTitle President/CEO\nDate: May 8, 2002	EX-99.(D)(3) 14 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nAdams, Harkness & Hill, Inc\n60 State Street\nBoston, MA 62109\n(617) 371-3700\nConfidential\nMay 8, 2002\nAllan Routh\nPresident and CEO\nSunrich Foods\n3824 Southwest 93rd Street\nHope, MN 56046\nLadies and Gentlemen:\nAdams, Harkness & Hill, Inc. ("AH&H"), on behalf of and as exclusive, retained advisor to Opta Food Ingredients, Inc., a Delaware\ncorporation (the "Company"), and the Company are prepared to furnish you with certain publicly available and material non-public information\ndescribing the Company in connection with your consideration of a possible negotiated transaction with the Company. As a condition to our\ndisclosure of the identity of the Company and furnishing such publicly available and material non-public information you agree, on behalf of your\ndirectors, officers, employees, affiliates, advisors and agents (your "Representatives") to the terms of this Agreement:\n1. Definition of Confidential Information. In the context of this Agreement, Confidentia Information shal mean (i) the identity of the\nCompany; (ii) any information, written or oral, whether prepared by AH&H, the Company, its advisors, agents or otherwise that is to be, or has been,\nfurnished by or on behalf of the Company in accordance with the provisions of this letter; and (iii) your consideration of a possible negotiated\ntransaction with the Company.\n2. Use of Confidential Information. You hereby agree that the Confidential Information will be used solely for the purpose of evaluating a\npossible negotiated transaction between you and the Company and not in any way directly or indirectly detrimental to the Company. Unless\notherwise required by law, you and your Representatives will not disclose the Confidential Information, without the prior written consent of the\nCompany, to any person (including any corporation, company, partnership, or individual) and will limit the dissemination of the Confidential\nInformation to your Representatives who need to know the information for the sole purpose of evaluating a possible negotiated transaction with the\nCompany. You shall be fully liable for any breach of this Agreement by any of your Representatives. You further agree to treat the Confidential\nInformation in the same manner as you treat confidential information of a similar nature. You also agree that you will inform each of your\nRepresentatives who will receive Confidentia Information of your obligations under this letter. This paragraph shall be broadly interpreted to\nprohibit, without limitation, any discussions with potential co-bidders or other transaction partners without the prior written consent of the Company.\n3. No Contacts with the Company. You agree that, at the conclusion of your review of the Confidential Information, or within three\nbusiness days of the Company's request, you and your Representatives shall redeliver to AH&H all copies of the Confidential Information in\nany\nform whatsoever (including without limitation any reports, memoranda or other material prepared by you or your Representatives). Unless consented\nto in advance in writing by the Chief Executive Officer of the Company, for a period of one year after the date hereof, you shall not, and you shall\nnot permit any Representative of yours to, directly or indirectly, solicit any Company personnel with whom you or any Representative of yours\nhas\ncontact in connection with discussions or negotiations regarding a possible negotiated transaction to leave the employ of the Company or to accept\nemployment by you or any affiliate of yours or have any discussions with any such person regarding such cessation of employment or re-\nemployment.\n1\n4. Agreement to Standstill. You agree that, for a period of eighteen months from the date of this agreement (the "Standstill Period"), unless\nspecifically invited in writing by us or the Company, neither you nor any of your Representatives, acting on your behalf, will in any manner, directly\nor indirectly, (a) other than through a confidential offer directed to the Company, effect or seek offer or propose to effect, or cause or participate in or\nin any way assist any other person to effect or seek, offer or propose to effect or participate in, (i) any acquisition of any securities (or beneficial\nownership\nthereof) or assets of the Company; (ii) any tender or exchange offer, merger or other business combination involving the Company; (iii)\nany recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company; or (iv) any "solicitation"\nof "proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of\nthe\nother\nparty;\n(b)\nfrom,\njoin\nor\nin\nany\nway\nparticipate\nin\na\n"group"\n(as\ndefined\nunder\nthe\nSecurities\nExchange\nAct\nof\n1934,\nas\namended)\nwith\nrespect\nto\nthe Company; (c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the\nCompany; (d) take any action that might force the Company to make a public announcement regarding any of the types of matters set forth in (a)\nabove; or (e) enter into any discussion or arrangements with any third party with respect to any of the foregoing. Notwithstanding the foregoing,\nif\nduring the Standstill Period, any third party shall publicly announce and thereafter commence a tender or exchange offer which, if consummated,\nwould give such third party ownership of 50% or more of the outstanding shares of the Company (a "Third Party Offer"), you shall be entitled to\ncommence a tender offer (a "Competing Offer") for at least the same number of shares (provided that the Competing Offer provides for a second-\nstep merger yielding a blended purchase price per share which is at least equal to the purchase price per share offered by the third party in the Third\nParty Offer and in any subsequent second-step merger or acquisition transaction if one is proposed by such third party) and to purchase shares\npursuant to such Competing Offer.\n5. Subpoena or Other Order. In the event that you or your Representatives receive a request to disclose all or any part of the Confidential\nInformation under the terms of a valid and effective subpoena or other order issued by a court having jurisdiction or by a governmental body, or, in\naccordance with the written legal opinion of your counsel, by any federal or state law or regulation, you agree that you will promptly notify AH&H\nand the Company of the existence, terms and circumstances surrounding such a request, so that the Company may seek an appropriate protective\norder or other remedy and/or waive your compliance with the provisions of this Agreement. If disclosure of such information is required in the\nwritten opinion of your counsel, you agree that you will exercise reasonable efforts to obtain an order or other reliable assurance that confidential\ntreatment will be accorded to such of the disclosed information which we or the Company so designates.\n6. No Representation as to Accuracy. You understand that neither AH&H, the Company nor any of their respective agents or employees\nhas made or makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information. Neither\nAH&H nor the Company shall have any liability to anyone resulting from the use of any Confidential Information (or any errors therein or omissions\ntherefrom), except as provided in any definitive acquisition or other agreement between the Company and you.\n7.\nNo Binding Agreement for Transaction Herein. You agree that unless and until a definitive agreement between the Company and you\nwith respect to any transaction involving the Company has been executed and delivered, neither the Company nor you will be under any legal\nobligation of any kind whatsoever with respect to such a transaction by virtue of this letter or any other written or oral expression with respect\nto\nsuch a transaction by any of the directors, officers, employees, representatives, advisors, or agents of the Company except, in the case of this\nAgreement, for the matters specifically agreed to herein.\n8.\nRemedies. You agree that money damages would not be a sufficient remedy for any breach of the agreements contained in this letter by\nyou or your Representatives, and that the Company shall be entitled to specific performance and injunctive relief as remedies for any such breach or\nthreatened breach. Such remedies shall not be considered to be the exclusive remedies for any such breach or threatened breach, but shall be in\naddition to all other remedies available at law or equity to the Company.\n2\n9. Entire Agreement. This Agreement constitutes the entire understanding of the parties hereto with respect to the subject matter hereof and\nsupersedes all prior agreements and understandings with respect thereto.\n10. Jurisdiction. This Confidentiality Agreement is being executed by AH&H in the Commonwealth of Massachusetts and it is understood\nthat AH&H will perform its services hereunder in that jurisdiction. Accordingly, this Confidentiality Agreement and all questions relating to its\nvalidity, interpretation, performance, and enforcement shall be governed by and construed, interpreted, and enforced in accordance with the internal\nlaws, and not the law of conflicts of law, of the Commonwealth of Massachusetts. To the extent that a court of competent jurisdiction determines that\nany provision or provisions contained herein are not enforceable, such provision or provisions shall be limited to the maximum extent enforceable\nunder applicable law.\n11. Termination. The provisions relating to confidentiality contained in this letter shall terminate upon the earlier of (a) five years from the\ndate hereof, (b) the execution of a separate agreement addressing the confidential use of non-public information specifically superceding this\nAgreement, or (c) if you enter into a negotiated transaction with the Company, as of the date such transaction is consummated.\nIf you agree with and accept the foregoing, please sign and return one copy of this Agreement, which will constitute our agreement with respect\nto\nthe subject matter of this letter.\nVery truly yours,\nADAMS, HARKNESS & HILL, INC.\nBy: /S/ DAVID THIBODEAU\nDavid Thibodeau\nPrincipal\nACCEPTED AND AGREED:\nSUNRICH FOODS\nBy: /S/ ALLAN ROUTH\nName: Allan Routh\nTitle President/CEO\nDate: May 8, 2002\n3	EX-99.(D)(3) 14 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nAdams, Harkness & Hill, Inc\n60 State Street\nBoston, MA 62109\n(617) 371-3700\nConfidential\nMay 8, 2002\nAllan Routh\nPresident and CEO\nSunrich Foods\n3824 Southwest 93rd Street\nHope, MN 56046\nLadies and Gentlemen:\nAdams, Harkness & Hill, Inc. (“AH&H”), on behalf of and as exclusive, retained advisor to Opta Food Ingredients, Inc., a Delaware\ncorporation (the “Company”), and the Company are prepared to furnish you with certain publicly available and material non-public information\ndescribing the Company in connection with your consideration of a possible negotiated transaction with the Company. As a condition to our\ndisclosure of the identity of the Company and furnishing such publicly available and material non-public information you agree, on behalf of your\ndirectors, officers, employees, affiliates, advisors and agents (your “Representatives”) to the terms of this Agreement:\n1. Definition of Confidential Information. In the context of this Agreement, Confidential Information shall mean (i) the identity of the\nCompany; (ii) any information, written or oral, whether prepared by AH&H, the Company, its advisors, agents or otherwise that is to be, or has been,\nfurnished by or on behalf of the Company in accordance with the provisions of this letter; and (iii) your consideration of a possible negotiated\ntransaction with the Company.\n2. Use of Confidential Information. You hereby agree that the Confidential Information will be used solely for the purpose of evaluating a\npossible negotiated transaction between you and the Company and not in any way directly or indirectly detrimental to the Company. Unless\notherwise required by law, you and your Representatives will not disclose the Confidential Information, without the prior written consent of the\nCompany, to any person (including any corporation, company, partnership, or individual) and will limit the dissemination of the Confidential\nInformation to your Representatives who need to know the information for the sole purpose of evaluating a possible negotiated transaction with the\nCompany. You shall be fully liable for any breach of this Agreement by any of your Representatives. You further agree to treat the Confidential\nInformation in the same manner as you treat confidential information of a similar nature. You also agree that you will inform each of your\nRepresentatives who will receive Confidential Information of your obligations under this letter. This paragraph shall be broadly interpreted to\nprohibit, without limitation, any discussions with potential co-bidders or other transaction partners without the prior written consent of the Company.\n3. No Contacts with the Company. You agree that, at the conclusion of your review of the Confidential Information, or within three\nbusiness days of the Company’s request, you and your Representatives shall redeliver to AH&H all copies of the Confidential Information in any\nform whatsoever (including without limitation any reports, memoranda or other material prepared by you or your Representatives). Unless consented\nto in advance in writing by the Chief Executive Officer of the Company, for a period of one year after the date hereof, you shall not, and you shall\nnot permit any Representative of yours to, directly or indirectly, solicit any Company personnel with whom you or any Representative of yours has\ncontact in connection with discussions or negotiations regarding a possible negotiated transaction to leave the employ of the Company or to accept\nemployment by you or any affiliate of yours or have any discussions with any such person regarding such cessation of employment or re-\nemployment.\n1\n4. Agreement to Standstill. You agree that, for a period of eighteen months from the date of this agreement (the “Standstill Period”), unless\nspecifically invited in writing by us or the Company, neither you nor any of your Representatives, acting on your behalf, will in any manner, directly\nor indirectly, (a) other than through a confidential offer directed to the Company, effect or seek offer or propose to effect, or cause or participate in or\nin any way assist any other person to effect or seek, offer or propose to effect or participate in, (i) any acquisition of any securities (or beneficial\nownership thereof) or assets of the Company; (ii) any tender or exchange offer, merger or other business combination involving the Company; (iii)\nany recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company; or (iv) any “solicitation”\nof “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of the\nother party; (b) from, join or in any way participate in a “group” (as defined under the Securities Exchange Act of 1934, as amended) with respect to\nthe Company; (c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the\nCompany; (d) take any action that might force the Company to make a public announcement regarding any of the types of matters set forth in (a)\nabove; or (e) enter into any discussion or arrangements with any third party with respect to any of the foregoing. Notwithstanding the foregoing, if\nduring the Standstill Period, any third party shall publicly announce and thereafter commence a tender or exchange offer which, if consummated,\nwould give such third party ownership of 50% or more of the outstanding shares of the Company (a “Third Party Offer”), you shall be entitled to\ncommence a tender offer (a “Competing Offer”) for at least the same number of shares (provided that the Competing Offer provides for a second-\nstep merger yielding a blended purchase price per share which is at least equal to the purchase price per share offered by the third party in the Third\nParty Offer and in any subsequent second-step merger or acquisition transaction if one is proposed by such third party) and to purchase shares\npursuant to such Competing Offer.\n5. Subpoena or Other Order. In the event that you or your Representatives receive a request to disclose all or any part of the Confidential\nInformation under the terms of a valid and effective subpoena or other order issued by a court having jurisdiction or by a governmental body, or, in\naccordance with the written legal opinion of your counsel, by any federal or state law or regulation, you agree that you will promptly notify AH&H\nand the Company of the existence, terms and circumstances surrounding such a request, so that the Company may seek an appropriate protective\norder or other remedy and/or waive your compliance with the provisions of this Agreement. If disclosure of such information is required in the\nwritten opinion of your counsel, you agree that you will exercise reasonable efforts to obtain an order or other reliable assurance that confidential\ntreatment will be accorded to such of the disclosed information which we or the Company so designates.\n6. No Representation as to Accuracy. You understand that neither AH&H, the Company nor any of their respective agents or employees\nhas made or makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential Information. Neither\nAH&H nor the Company shall have any liability to anyone resulting from the use of any Confidential Information (or any errors therein or omissions\ntherefrom), except as provided in any definitive acquisition or other agreement between the Company and you.\n7. No Binding Agreement for Transaction Herein. You agree that unless and until a definitive agreement between the Company and you\nwith respect to any transaction involving the Company has been executed and delivered, neither the Company nor you will be under any legal\nobligation of any kind whatsoever with respect to such a transaction by virtue of this letter or any other written or oral expression with respect to\nsuch a transaction by any of the directors, officers, employees, representatives, advisors, or agents of the Company except, in the case of this\nAgreement, for the matters specifically agreed to herein.\n8. Remedies. You agree that money damages would not be a sufficient remedy for any breach of the agreements contained in this letter by\nyou or your Representatives, and that the Company shall be entitled to specific performance and injunctive relief as remedies for any such breach or\nthreatened breach. Such remedies shall not be considered to be the exclusive remedies for any such breach or threatened breach, but shall be in\naddition to all other remedies available at law or equity to the Company.\n2\n9. Entire Agreement. This Agreement constitutes the entire understanding of the parties hereto with respect to the subject matter hereof and\nsupersedes all prior agreements and understandings with respect thereto.\n10. Jurisdiction. This Confidentiality Agreement is being executed by AH&H in the Commonwealth of Massachusetts and it is understood\nthat AH&H will perform its services hereunder in that jurisdiction. Accordingly, this Confidentiality Agreement and all questions relating to its\nvalidity, interpretation, performance, and enforcement shall be governed by and construed, interpreted, and enforced in accordance with the internal\nlaws, and not the law of conflicts of law, of the Commonwealth of Massachusetts. To the extent that a court of competent jurisdiction determines that\nany provision or provisions contained herein are not enforceable, such provision or provisions shall be limited to the maximum extent enforceable\nunder applicable law.\n11. Termination. The provisions relating to confidentiality contained in this letter shall terminate upon the earlier of (a) five years from the\ndate hereof, (b) the execution of a separate agreement addressing the confidential use of non-public information specifically superceding this\nAgreement, or (c) if you enter into a negotiated transaction with the Company, as of the date such transaction is consummated.\nIf you agree with and accept the foregoing, please sign and return one copy of this Agreement, which will constitute our agreement with respect to\nthe subject matter of this letter.\nVery truly yours,\nADAMS, HARKNESS & HILL, INC.\nBy: /S/ DAVID THIBODEAU\nDavid Thibodeau\nPrincipal\nACCEPTED AND AGREED:\nSUNRICH FOODS\nBy: /S/ ALLAN ROUTH\nName: Allan Routh\nTitle President/CEO\nDate: May 8, 2002\n3
+a7b5a4ad7e03751de380f2fba0a89b1f.pdf	effective_date jurisdiction party term	EX-10.1 2 dex101.htm NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT\nExhibit 10.1\nNON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”), which is effective as of\nJanuary 31, 2007 (the “Effective Date”), is by and among L. Don Stricklin, an individual who resides in La Grange, Texas (the “Undersigned”),\nTexas United Bancshares, Inc., a Texas corporation (the “Company”), and Prosperity Bancshares, Inc., a Texas corporation (“Prosperity\nBancshares”). Prosperity Bancshares and Prosperity Bank, a Texas banking association are collectively referred to herein as “Prosperity.”\nWHEREAS, this Agreement is being entered into in connection with the Agreement and Plan of Reorganization, dated as of July 18, 2006, as\namended, by and between Prosperity Bancshares and the Company (the “Merger Agreement”), pursuant to which the Company will merge with and\ninto Prosperity Bancshares, with Prosperity Bancshares as the surviving entity (the “Merger”); and\nWHEREAS, Prosperity Bancshares has required as a condition to consummation of the Merger that the Undersigned execute and deliver a\nnon-competition and non-solicitation agreement for the benefit of Prosperity and the Undersigned’s agreement to and compliance with the provisions\nof this Agreement are a material factor, material inducement and material condition to Prosperity’s participation in the transactions contemplated by\nthe Merger Agreement; and\nWHEREAS, Prosperity has agreed to pay the Undersigned $65,000 per year for two years in consideration for the Undersigned executing and\ndelivering this Agreement; and\nWHEREAS, the Undersigned will receive pecuniary and other benefits as a result of the Merger; and\nWHEREAS, the Undersigned, as a director, executive officer and/or shareholder of the Company, as the case may be, has had access to certain\nConfidential Information (as hereinafter defined), including, without limitation, information concerning the Company’s business and the\nrelationships between the Company, its subsidiaries and their customers, and the Undersigned will continue to have access to Confidential\nInformation and may have access to new Confidential Information of the Company; and\nWHEREAS, the Undersigned recognizes that Prosperity Bancshares would not have entered into the Merger Agreement without the\nUndersigned agreeing to the terms and conditions of this Agreement; and\nWHEREAS, any capitalized term not defined herein shall have the meaning set forth in the Merger Agreement;\n1\nNOW, THEREFORE, in consideration of the good and valuable consideration contained herein and in the Merger Agreement, the receipt and\nsufficiency of which are hereby acknowledged, the Undersigned hereby agrees as follows:\n1. The Undersigned agrees that he will not, at any time after the Effective Date and through and including the Closing Date make any\nunauthorized disclosure, directly or indirectly, of any Confidential Information of the Company or third parties, or make any use thereof, directly or\nindirectly. The Undersigned further agrees that he will not, at any time after the Effective Date make any unauthorized disclosure, directly or\nindirectly, of any Confidential Information of Prosperity or third parties, or make any use thereof, directly or indirectly and that he shall deliver\npromptly to Prosperity at any time after the Effective Time of the Merger, at its reasonable request, without retaining any copies, all documents and\nother material in the Undersigned’s possession at that time relating, directly or indirectly, to any Confidential Information or other information of the\nCompany, or Confidential Information or other information regarding third parties, learned in such person’s position as a director, officer or\nshareholder of the Company.\nFor purposes of this Agreement, “Confidential Information” means and includes Prosperity’s and/or the Company’s confidential and/or\nproprietary information and/or trade secrets, including those of their respective subsidiaries, including Prosperity Bank, Gateway National Bank,\nGNB Financial, n.a., Northwest Bank and State Bank, that have been and/or will be developed or used and that cannot be obtained readily by third\nparties from outside sources. Confidential Information includes, but is not limited to, the following: information regarding past, current and\nprospective customers and investors and business affiliates, employees, contractors, and the industry not generally known to the public; strategies,\nmethods, books, records, and documents; technical information concerning products, equipment, services, and processes; procurement procedures,\npricing, and pricing techniques, including contact names, services provided, pricing, type and amount of services used; financial data; pricing\nstrategies and price curves; positions; plans or strategies for expansion or acquisitions; budgets; research; financial and sales data; trading\nmethodologies and terms; communications information; evaluations, opinions and interpretations of information and data; marketing and\nmerchandising techniques; electronic databases; models; specifications; computer programs; contracts; bids or proposals; technologies and methods;\ntraining methods and processes; organizational structure; personnel information; payments or rates paid to consultants or other service providers; and\nother such confidential or proprietary information. The term “Confidential Information” does not include any information that (i) at the time of\ndisclosure or thereafter is generally available to and known to the public, other than by a breach of this Agreement by the disclosing party, (ii) was\navailable to the disclosing party on a non-confidential basis from a source other than the non-disclosing party or (iii) was independently acquired or\ndeveloped without violating any obligations of this Agreement. The Undersigned acknowledges that the Company’s and Prosperity’s business is\nhighly competitive, that this Confidential Information constitutes a valuable, special and unique asset to be acquired by Prosperity in the Merger and\nthat protection of such Confidential Information against unauthorized disclosure and use is of critical importance to the Company and Prosperity.\n2\n2. The Undersigned agrees that, for the period (the “Non-Competition Period”) beginning on the Effective Date and through the second\nanniversary of the Closing Date, the Undersigned will not, in any capacity, directly or indirectly:\na)\ncompete or engage, anywhere in the geographic area comprised of the fifty (50) mile radius surrounding any banking center of\nthe Company or Prosperity or any other banking center operated or owned directly or indirectly by Prosperity (the “Market\nArea”), in a business similar to that of the Company or Prosperity, or compete or engage in that type of business which the\nCompany or Prosperity has plans to engage in, or any business which the Company or Prosperity has engaged in during the\npreceding twelve (12) month period if within the twenty-four (24) months before the Closing Date, the Undersigned had access or\npotential access to Confidential Information regarding the proposed plans or the business in which the Company or Prosperity\nengaged or planned to engage; or\nb) take any action to invest in, own, manage, operate, control, participate in, be employed or engaged by or be connected in any\nmanner with any partnership, corporation or other business or entity engaging in a business similar to that of Prosperity or the\nCompany anywhere within the Market Area. Notwithstanding the foregoing, the Undersigned is permitted hereunder to own,\ndirectly or indirectly, up to one percent (1%) of the issued and outstanding securities of any publicly traded financial institution\nconducting business in the Market Area; or\nc)\ncall on, service or solicit competing business from customers or prospective customers of the Company or Prosperity or their\nrespective Subsidiaries.\n3. The Undersigned agrees that, other than as set forth in this Section 3, for the period (the “Non-Solicitation Period”) beginning on the\nEffective Date and through the fifth anniversary of the Closing Date, the Undersigned will not, in any capacity, directly or indirectly, call on, solicit,\nor hire any current or past employee of the Company or any of its subsidiaries and/or of Prosperity or any of its subsidiaries, and will not assist any\nother person or entity in such activities. Additionally, the Undersigned agrees that for the Non-Solicitation Period he will not, in any capacity,\ndirectly or indirectly, induce any employee of the Company or any of its subsidiaries and/or of Prosperity or any of its subsidiaries to terminate\nemployment from the Company or any of its subsidiaries or from Prosperity or any of its subsidiaries, and will not assist any other person or entity in\nsuch activities. The Undersigned further agrees and acknowledges that he may be permitted to call on, solicit, or hire any such employee who is no\nlonger employed by the Company or any of its subsidiaries or by Prosperity or any of its subsidiaries; provided the Undersigned receives prior\nwritten authorization from Prosperity before engaging in any such action. Provided, however, that after the second anniversary of the Closing Date,\nif Prosperity shall not be the surviving corporation in a merger then the Non-Solicitation Period shall end.\n4. The Undersigned acknowledges that the restrictions imposed by this Agreement are legitimate, reasonable and necessary to protect\nProsperity’s proposed acquisition of the\n3\nCompany and the goodwill thereof. The Undersigned acknowledges that the scope and duration of the restrictions contained herein are reasonable in\nlight of the time that the Undersigned has been engaged in the business of the Company and the Undersigned’s relationship with the customers of the\nCompany. The Undersigned further acknowledges that the restrictions contained herein are not burdensome to the Undersigned in light of the\nconsideration to be paid therefor and the other opportunities that remain open to the Undersigned. Moreover, the Undersigned acknowledges that he\nhas and will have other means available to him for the pursuit of his livelihood after the Effective Date.\n5. The Undersigned acknowledges and agrees that the breach of any of the covenants made by the Undersigned in this Agreement would cause\nirreparable injury to Prosperity, which could not sufficiently be remedied by monetary damages; and, therefore, that Prosperity shall be entitled to\nobtain such equitable relief as declaratory judgments; temporary, preliminary and permanent injunctions, without posting of any bond, and order of\nspecific performance to enforce those covenants or to prohibit any act or omission that constitutes a breach thereof. If Prosperity must bring suit to\nenforce this Agreement, the prevailing party shall be entitled to recover its attorneys’ fees and costs related thereto.\n6. In the event that Prosperity shall file a lawsuit in any court of competent jurisdiction alleging a breach of the non-disclosure, non-\ncompetition or non-solicitation provisions of this Agreement by the Undersigned, then any time period set forth in this Agreement including the time\nperiod set forth in Sections 2 and 3 above, shall be deemed tolled as of the time such lawsuit is filed and shall remain tolled until such dispute finally\nis resolved either by written settlement agreement resolving all claims raised in such lawsuit or by entry of a final judgment in such lawsuit and the\nfinal resolution of any post-judgment appellate proceedings.\n7. In consideration for the above obligations of the Undersigned, in addition to those matters set forth in the Recitals to this Agreement, the\nCompany agrees to provide the Undersigned with immediate access to new Confidential Information relating to the Company’s business, which will\nbecome Prosperity’s business after the Closing Date. The Undersigned also will have immediate access to, or knowledge of, new Confidential\nInformation of third parties, such as actual and potential customers, suppliers, partners, joint venturers, investors, financing sources, etc., of the\nCompany and of Prosperity after the Closing Date. In addition, in exchange for the Undersigned’s promises in Sections 2 and 3 of this Agreement,\nProsperity will pay the Undersigned a payment of $65,000 per year for two years, less applicable withholding taxes, payable in equal installments on\na semi-monthly basis beginning with the first installment to be made on the Closing Date and each subsequent installment to be made on the first and\nfifteenth day of each month following the Closing Date (or as soon as administratively practicable thereafter). Notwithstanding any provision of this\nAgreement to the contrary, no payment or benefit will be provided under this Section 7 until the earliest of (i) the date which is 6 months after the\ndate of the Undersigned’s termination of employment, or (ii) the date of Undersigned’s death. Payments to which the Undersigned would otherwise\nbe entitled during the 6-month period described above will be accumulated and paid in a lump sum on the first day of the seventh month after the\ndate of the Undersigned’s termination of employment. In addition, if any provision of this Agreement (or of any award of compensation) would\ncause the Undersigned to incur any additional tax or interest under Section 409A of the Code or any regulations or\n4\nTreasury guidance promulgated thereunder, the Undersigned shall reform such provision; provided that Prosperity shall (A) maintain, to the\nmaximum extent practicable, the original intent of the applicable provision without violating the provisions of Section 409A of the Code and\n(B) notify and consult with the Undersigned regarding such amendments or modifications prior to the effective date of any such change.\n8. This Agreement exclusively shall be governed by and construed in accordance with the laws of the State of Texas. Exclusive venue of any\ndispute relating to this Agreement shall be, and is convenient in federal district court or in the district courts of Harris County, Texas. The\nUndersigned agrees that he will not contest venue in Harris County, Texas or the application of Texas laws to any dispute relating to this Agreement\nor the Undersigned’s employment with the Company and/or Prosperity.\n9. This Agreement shall not be amended, modified, or altered in any manner except in writing signed by both parties.\n10. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining\nprovisions shall remain in full force and effect, as if this Agreement has been executed without any such invalid provisions having been included.\nSuch invalid provision shall be reformed in a manner that is both (i) legal and enforceable, and (ii) most closely represents the parties’ original\nintent.\n11. EACH OF THE PARTIES HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR\nCAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR ANY DEALINGS BETWEEN THEM RELATING TO THE\nSUBJECT MATTER OF THIS AGREEMENT OR THE RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS\nWAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND\nTHAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,\nBREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO\nACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP THAT\nEACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE\nTO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND\nREPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND\nVOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS\nIRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A\nMUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION AND EXECUTED BY EACH OF THE PARTIES\nHERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS\nHERETO. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE\nCOURT.\n5\n12. This Agreement sets forth the entire agreement of the parties relating to the subject matter hereof, and supersede any and all other\nagreements or understandings, written or oral, between Prosperity and the Undersigned. The Undersigned has no oral representations,\nunderstandings or agreements with Prosperity or any of its officers, directors or representatives covering the same subject matter as this Agreement.\nThis Agreement is the final, complete and exclusive statement and expression of the agreement among the parties hereto and of all the terms of this\nAgreement, and it cannot be varied, contradicted or supplemented by evidence of any prior or contemporaneous oral or written agreements.\n13. This Agreement shall be binding upon and shall inure to the benefit of Prosperity and its successors and assigns, including, without\nlimitation, any successor by merger, consolidation or stock purchase of Prosperity and any entity or person that acquires all or substantially all of the\nassets of Prosperity.\n[Signature Page Follows]\n6\nIN WITNESS WHEREOF, the Undersigned has caused this Agreement to be duly executed as of the date first written above.\nUNDERSIGNED\n/s/ L. Don Stricklin\nL. Don Stricklin\nTEXAS UNITED BANCSHARES, INC.\nBy: /s/ Jeff A. Wilkinson\nName: Jeff A. Wilkinson\nTitle: Chief Financial Officer and Executive Vice\nPresident\nPROSPERITY BANCSHARES, INC.\nBy: /s/ David Zalman\nName: David Zalman\nTitle: Chairman of the Board and Chief Executive Officer\n7	EX-10.1 2 dex101.htm NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT\nExhibit 10.1\nNON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”), which is effective as of\nJanuary 31, 2007 (the “Effective Date”), is by and among L. Don Stricklin, an individual who resides in La Grange, Texas (the “Undersigned”),\nTexas United Bancshares, Inc., a Texas corporation (the “Company”), and Prosperity Bancshares, Inc., a Texas corporation (“Prosperity\nBancshares”). Prosperity Bancshares and Prosperity Bank, a Texas banking association are collectively referred to herein as “Prosperity.”\nWHEREAS, this Agreement is being entered into in connection with the Agreement and Plan of Reorganization, dated as of July 18, 2006, as\namended, by and between Prosperity Bancshares and the Company (the “Merger Agreement”), pursuant to which the Company will merge with and\ninto Prosperity Bancshares, with Prosperity Bancshares as the surviving entity (the “Merger”); and\nWHEREAS, Prosperity Bancshares has required as a condition to consummation of the Merger that the Undersigned execute and deliver a\nnon-competition and non-solicitation agreement for the benefit of Prosperity and the Undersigned’s agreement to and compliance with the provisions\nof this Agreement are a material factor, material inducement and material condition to Prosperity’s participation in the transactions contemplated by\nthe Merger Agreement; and\nWHEREAS, Prosperity has agreed to pay the Undersigned $65,000 per year for two years in consideration for the Undersigned executing and\ndelivering this Agreement; and\nWHEREAS, the Undersigned will receive pecuniary and other benefits as a result of the Merger; and\nWHEREAS, the Undersigned, as a director, executive officer and/or shareholder of the Company, as the case may be, has had access to certain\nConfidential Information (as hereinafter defined), including, without limitation, information concerning the Company’s business and the\nrelationships between the Company, its subsidiaries and their customers, and the Undersigned will continue to have access to Confidential\nInformation and may have access to new Confidential Information of the Company; and\nWHEREAS, the Undersigned recognizes that Prosperity Bancshares would not have entered into the Merger Agreement without the\nUndersigned agreeing to the terms and conditions of this Agreement; and\nWHEREAS, any capitalized term not defined herein shall have the meaning set forth in the Merger Agreement;\n1\nNOW, THEREFORE, in consideration of the good and valuable consideration contained herein and in the Merger Agreement, the receipt and\nsufficiency of which are hereby acknowledged, the Undersigned hereby agrees as follows:\n1. The Undersigned agrees that he will not, at any time after the Effective Date and through and including the Closing Date make any\nunauthorized disclosure, directly or indirectly, of any Confidential Information of the Company or third parties, or make any use thereof, directly or\nindirectly. The Undersigned further agrees that he will not, at any time after the Effective Date make any unauthorized disclosure, directly or\nindirectly, of any Confidential Information of Prosperity or third parties, or make any use thereof, directly or indirectly and that he shall deliver\npromptly to Prosperity at any time after the Effective Time of the Merger, at its reasonable request, without retaining any copies, all documents and\nother material in the Undersigned’s possession at that time relating, directly or indirectly, to any Confidential Information or other information of the\nCompany, or Confidential Information or other information regarding third parties, learned in such person’s position as a director, officer or\nshareholder of the Company.\nFor purposes of this Agreement, “Confidential Information” means and includes Prosperity’s and/or the Company’s confidential and/or\nproprietary information and/or trade secrets, including those of their respective subsidiaries, including Prosperity Bank, Gateway National Bank,\nGNB Financial, n.a., Northwest Bank and State Bank, that have been and/or will be developed or used and that cannot be obtained readily by third\nparties from outside sources. Confidential Information includes, but is not limited to, the following: information regarding past, current and\nprospective customers and investors and business affiliates, employees, contractors, and the industry not generally known to the public; strategies,\nmethods, books, records, and documents; technical information concerning products, equipment, services, and processes; procurement procedures,\npricing, and pricing techniques, including contact names, services provided, pricing, type and amount of services used; financial data; pricing\nstrategies and price curves; positions; plans or strategies for expansion or acquisitions; budgets; research; financial and sales data; trading\nmethodologies and terms; communications information; evaluations, opinions and interpretations of information and data; marketing and\nmerchandising techniques; electronic databases; models; specifications; computer programs; contracts; bids or proposals; technologies and methods;\ntraining methods and processes; organizational structure; personnel information; payments or rates paid to consultants or other service providers; and\nother such confidential or proprietary information. The term “Confidential Information” does not include any information that (i) at the time of\ndisclosure or thereafter is generally available to and known to the public, other than by a breach of this Agreement by the disclosing party, (ii) was\navailable to the disclosing party on a non-confidential basis from a source other than the non-disclosing party or (iii) was independently acquired or\ndeveloped without violating any obligations of this Agreement. The Undersigned acknowledges that the Company’s and Prosperity’s business is\nhighly competitive, that this Confidential Information constitutes a valuable, special and unique asset to be acquired by Prosperity in the Merger and\nthat protection of such Confidential Information against unauthorized disclosure and use is of critical importance to the Company and Prosperity.\n2\n2. The Undersigned agrees that, for the period (the “Non-Competition Period”) beginning on the Effective Date and through the second anniversary of the Closing Date, the Undersigned will not, in any capacity, directly or indirectly: a)\nb)\n0)\ncompete or engage, anywhere in the geographic area comprised of the fifty (50) mile radius surrounding any banking center of\nthe Company or Prosperity or any other banking center operated or owned directly or indirectly by Prosperity (the “Market\nArea”), in a business similar to that of the Company or Prosperity, or compete or engage in that type of business which the\nCompany or Prosperity has plans to engage in, or any business which the Company or Prosperity has engaged in during the\npreceding twelve (12) month period if within the twenty-four (24) months before the Closing Date, the Undersigned had access or\npotential access to Confidential Information regarding the proposed plans or the business in which the Company or Prosperity\nengaged or planned to engage; or\ntake any action to invest in, own, manage, operate, control, participate in, be employed or engaged by or be connected in any\nmanner with any partnership, corporation or other business or entity engaging in a business similar to that of Prosperity or the\nCompany anywhere within the Market Area. Notwithstanding the foregoing, the Undersigned is permitted hereunder to own,\ndirectly or indirectly, up to one percent (1%) of the issued and outstanding securities of any publicly traded financial institution\nconducting business in the Market Area; or\ncall on, service or solicit competing business from customers or prospective customers of the Company or Prosperity or their\nrespective Subsidiaries.\n3. The Undersigned agrees that, other than as set forth in this Section 3, for the period (the “Non-Solicitation Period”) beginning on the Effective Date and through the fifth anniversary of the Closing Date, the Undersigned will not, in any capacity, directly or indirectly, call on, solicit, or hire any current or past employee of the Company or any of its subsidiaries and/or of Prosperity or any of its subsidiaries, and will not assist any other person or entity in such activities. Additionally, the Undersigned agrees that for the Non-Solicitation Period he will not, in any capacity, directly or indirectly, induce any employee of the Company or any of its subsidiaries and/or of Prosperity or any of its subsidiaries to terminate employment from the Company or any of its subsidiaries or from Prosperity or any of its subsidiaries, and will not assist any other person or entity in such activities. The Undersigned further agrees and acknowledges that he may be permitted to call on, solicit, or hire any such employee who is no longer employed by the Company or any of its subsidiaries or by Prosperity or any of its subsidiaries; provided the Undersigned receives prior written authorization from Prosperity before engaging in any such action. Provided, however, that after the second anniversary of the Closing Date, if Prosperity shall not be the surviving corporation in a merger then the Non-Solicitation Period shall end. 4. The Undersigned acknowledges that the restrictions imposed by this Agreement are legitimate, reasonable and necessary to protect Prosperity’s proposed acquisition of the\fCompany and the goodwill thereof. The Undersigned acknowledges that the scope and duration of the restrictions contained herein are reasonable in\nlight of the time that the Undersigned has been engaged in the business of the Company and the Undersigned’s relationship with the customers of the\nCompany. The Undersigned further acknowledges that the restrictions contained herein are not burdensome to the Undersigned in light of the\nconsideration to be paid therefor and the other opportunities that remain open to the Undersigned. Moreover, the Undersigned acknowledges that he\nhas and will have other means available to him for the pursuit of his livelihood after the Effective Date.\n5. The Undersigned acknowledges and agrees that the breach of any of the covenants made by the Undersigned in this Agreement would cause\nirreparable injury to Prosperity, which could not sufficiently be remedied by monetary damages; and, therefore, that Prosperity shall be entitled to\nobtain such equitable relief as declaratory judgments; temporary, preliminary and permanent injunctions, without posting of any bond, and order of\nspecific performance to enforce those covenants or to prohibit any act or omission that constitutes a breach thereof. If Prosperity must bring suit to\nenforce this Agreement, the prevailing party shall be entitled to recover its attorneys’ fees and costs related thereto.\n6. In the event that Prosperity shall file a lawsuit in any court of competent jurisdiction alleging a breach of the non-disclosure, non-\ncompetition or non-solicitation provisions of this Agreement by the Undersigned, then any time period set forth in this Agreement including the time\nperiod set forth in Sections 2 and 3 above, shall be deemed tolled as of the time such lawsuit is filed and shall remain tolled until such dispute finally\nis resolved either by written settlement agreement resolving all claims raised in such lawsuit or by entry of a final judgment in such lawsuit and the\nfinal resolution of any post-judgment appellate proceedings.\n7. In consideration for the above obligations of the Undersigned, in addition to those matters set forth in the Recitals to this Agreement, the\nCompany agrees to provide the Undersigned with immediate access to new Confidential Information relating to the Company’s business, which will\nbecome Prosperity’s business after the Closing Date. The Undersigned also will have immediate access to, or knowledge of, new Confidential\nInformation of third parties, such as actual and potential customers, suppliers, partners, joint venturers, investors, financing sources, etc., of the\nCompany and of Prosperity after the Closing Date. In addition, in exchange for the Undersigned’s promises in Sections 2 and 3 of this Agreement,\nProsperity will pay the Undersigned a payment of $65,000 per year for two years, less applicable withholding taxes, payable in equal installments on\na semi-monthly basis beginning with the first installment to be made on the Closing Date and each subsequent installment to be made on the first and\nfifteenth day of each month following the Closing Date (or as soon as administratively practicable thereafter). Notwithstanding any provision of this\nAgreement to the contrary, no payment or benefit will be provided under this Section 7 until the earliest of (i) the date which is 6 months after the\ndate of the Undersigned’s termination of employment, or (ii) the date of Undersigned’s death. Payments to which the Undersigned would otherwise\nbe entitled during the 6-month period described above will be accumulated and paid in a lump sum on the first day of the seventh month after the\ndate of the Undersigned’s termination of employment. In addition, if any provision of this Agreement (or of any award of compensation) would\ncause the Undersigned to incur any additional tax or interest under Section 409A of the Code or any regulations or\n4\nTreasury guidance promulgated thereunder, the Undersigned shall reform such provision; provided that Prosperity shall (A) maintain, to the\nmaximum extent practicable, the original intent of the applicable provision without violating the provisions of Section 409A of the Code and\n(B) notify and consult with the Undersigned regarding such amendments or modifications prior to the effective date of any such change.\n8. This Agreement exclusively shall be governed by and construed in accordance with the laws of the State of Texas. Exclusive venue of any\ndispute relating to this Agreement shall be, and is convenient in federal district court or in the district courts of Harris County, Texas. The\nUndersigned agrees that he will not contest venue in Harris County, Texas or the application of Texas laws to any dispute relating to this Agreement\nor the Undersigned’s employment with the Company and/or Prosperity.\n9. This Agreement shall not be amended, modified, or altered in any manner except in writing signed by both parties.\n10. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining\nprovisions shall remain in full force and effect, as if this Agreement has been executed without any such invalid provisions having been included.\nSuch invalid provision shall be reformed in a manner that is both (i) legal and enforceable, and (ii) most closely represents the parties’ original\nintent.\n11. EACH OF THE PARTIES HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR\nCAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR ANY DEALINGS BETWEEN THEM RELATING TO THE\nSUBJECT MATTER OF THIS AGREEMENT OR THE RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS\nWAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND\nTHAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,\nBREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO\nACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP THAT\nEACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE\nTO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND\nREPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND\nVOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS\nIRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A\nMUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION AND EXECUTED BY EACH OF THE PARTIES\nHERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS\nHERETO. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE\nCOURT.\n12. This Agreement sets forth the entire agreement of the parties relating to the subject matter hereof, and supersede any and all other\nagreements or understandings, written or oral, between Prosperity and the Undersigned. The Undersigned has no oral representations,\nunderstandings or agreements with Prosperity or any of its officers, directors or representatives covering the same subject matter as this Agreement.\nThis Agreement is the final, complete and exclusive statement and expression of the agreement among the parties hereto and of all the terms of this\nAgreement, and it cannot be varied, contradicted or supplemented by evidence of any prior or contemporaneous oral or written agreements.\n13. This Agreement shall be binding upon and shall inure to the benefit of Prosperity and its successors and assigns, including, without\nlimitation, any successor by merger, consolidation or stock purchase of Prosperity and any entity or person that acquires all or substantially all of the\nassets of Prosperity.\n[Signature Page Follows]\n6\nIN WITNESS WHEREOF, the Undersigned has caused this Agreement to be duly executed as of the date first written above.\nUNDERSIGNED\n/s/ L. Don Stricklin\nL. Don Stricklin\nTEXAS UNITED BANCSHARES, INC.\nBy: /s/ Jeff A. Wilkinson\nName: Jeff A. Wilkinson\nTitle: Chief Financial Officer and Executive Vice\nPresident\nPROSPERITY BANCSHARES, INC.\nBy: /s/ David Zalman\nName: David Zalman\nTitle: Chairman of the Board and Chief Executive Officer	EX-10.1 2 dex101.htm NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT\nExhibit 10.1\nNON-COMPETITION, NNON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this "Agreement"), which is effective as of\nJanuary 31, 2007 (the "Effective Date"), is by and among L. Don Stricklin, an individual who resides in La Grange, Texas (the "Undersigned"),\nTexas United Bancshares, Inc., a Texas corporation (the "Company"), and Prosperity Bancshares, Inc., a Texas corporation ("Prosperity\nBancshares"). Prosperity Bancshares and Prosperity Bank, a Texas banking association are collectively referred to herein as "Prosperity."\nWHEREAS, this Agreement is being entered into in connection with the Agreement and Plan of Reorganization, dated as of July 18, 2006, as\namended, by and between Prosperity Bancshares and the Company (the "Merger Agreement"), pursuant to which the Company will merge with and\ninto Prosperity Bancshares, with Prosperity Bancshares as the surviving entity (the "Merger"); and\nWHEREAS, Prosperity Bancshares has required as a condition to consummation of the Merger that the Undersigned execute and deliver a\nnon-competition and non-solicitation agreement for the benefit of Prosperity and the Undersigned's agreement to and compliance with the provisions\nof this Agreement are a material factor, material inducement and material condition to Prosperity's participation in the transactions contemplated by\nthe Merger Agreement; and\nWHEREAS, Prosperity has agreed to pay the Undersigned $65,000 per year for two years in consideration for the Undersigned executing and\ndelivering this Agreement; and\nWHEREAS, the Undersigned will receive pecuniary and other benefits as a result of the Merger; and\nWHEREAS, the Undersigned, as a director, executive officer and/or shareholder of the Company, as the case may be, has had access to certain\nConfidential Information (as hereinafter defined), including, without limitation, information concerning the Company's business and the\nrelationships between the Company, its subsidiaries and their customers, and the Undersigned will continue to have access to Confidential\nInformation and may have access to new Confidential Information of the Company; and\nWHEREAS, the Undersigned recognizes that Prosperity Bancshares would not have entered into the Merger Agreement without the\nUndersigned agreeing to the terms and conditions of this Agreement; and\nWHEREAS, any capitalized term not defined herein shall have the meaning set forth in the Merger Agreement;\n1\nNOW, THEREFORE, in consideration of the good and valuable consideration contained herein and in the Merger Agreement, the receipt and\nsufficiency of which are hereby acknowledged, the Undersigned hereby agrees as follows:\n1. The Undersigned agrees that he will not, at any time after the Effective Date and through and including the Closing Date make any\nunauthorized disclosure, directly or indirectly, of any Confidential Information of the Company or third parties, or make any use thereof, directly\nor\nindirectly. The Undersigned further agrees that he will not, at any time after the Effective Date make any unauthorized disclosure, directly or\nindirectly, of any Confidential Information of Prosperity or third parties, or make any use thereof, directly or indirectly and that he shall deliver\npromptly to Prosperity at any time after the Effective Time of the Merger, at its reasonable request, without retaining any copies, all documents and\nother material in the Undersigned's possession at that time relating, directly or indirectly, to any Confidential Information or other information of the\nCompany, or Confidential Information or other information regarding third parties, learned in such person's position as a director, officer or\nshareholder of the Company.\nFor purposes of this Agreement, "Confidential Information" means and includes Prosperity's and/or the Company's confidential and/or\nproprietary information and/or trade secrets, including those of their respective subsidiaries, including Prosperity Bank, Gateway National Bank,\nGNB Financial, n.a., Northwest Bank and State Bank, that have been and/or will be developed or used and that cannot be obtained readily by third\nparties from outside sources. Confidential Information includes, but is not limited to, the following: information regarding past, current and\nprospective customers and investors and business affiliates, employees, contractors, and the industry not generally known to the public; strategies,\nmethods, books, records, and documents; technical information concerning products, equipment, services, and processes; procurement procedures,\npricing, and pricing techniques, including contact names, services provided, pricing, type and amount of services used; financial data; pricing\nstrategies and price curves; positions; plans or strategies for expansion or acquisitions; budgets; research; financial and sales data; trading\nmethodologies and terms; communications information; evaluations, opinions and interpretations of information and data; marketing and\nmerchandising techniques; electronic databases; models; specifications; computer programs; contracts; bids or proposals; technologies and methods;\ntraining methods and processes; organizational structure; personnel information; payments or rates paid to consultants or other service providers; and\nother\nsuch confidential or proprietary information. The term "Confidential Information" does not include any information that (i) at the time of\ndisclosure or thereafter is generally available to and known to the public, other than by a breach of this Agreement by the disclosing party, (ii) was\navailable to the disclosing party on a non-confidential basis from a source other than the non-disclosing party or (iii) was independently acquired\nor\ndeveloped without violating any obligations of this Agreement. The Undersigned acknowledges that the Company's and Prosperity's business is\nhighly competitive, that this Confidential Information constitutes a valuable, special and unique asset to be acquired by Prosperity in the Merger and\nthat protection of such Confidential Information against unauthorized disclosure and use is of critical importance to the Company and Prosperity.\n2\n2. The Undersigned agrees that, for the period (the "Non-Competition Period") beginning on the Effective Date and through the second\nanniversary of the Closing Date, the Undersigned will not, in any capacity, directly or indirectly:\na)\ncompete or engage, anywhere in the geographic area comprised of the fifty (50) mile radius surrounding any banking center of\nthe Company or Prosperity or any other banking center operated or owned directly or indirectly by Prosperity (the "Market\nArea"), in a business similar to that of the Company or Prosperity, or compete or engage in that type of business which the\nCompany or Prosperity has plans to engage in, or any business which the Company or Prosperity has engaged in during the\npreceding twelve (12) month period if within the twenty-four (24) months before the Closing Date, the Undersigned had access\nor\npotential access to Confidential Information regarding the proposed plans or the business in which the Company or Prosperity\nengaged or planned to engage; or\nb)\ntake any action to invest in, own, manage, operate, control, participate in, be employed or engaged by or be connected in any\nmanner with any partnership, corporation or other business or entity engaging in a business similar to that of Prosperity or the\nCompany anywhere within the Market Area. Notwithstanding the foregoing, the Undersigned is permitted hereunder to own,\ndirectly or indirectly, up to one percent (1%) of the issued and outstanding securities of any publicly traded financial institution\nconducting business in the Market Area; or\nc)\ncall on, service or solicit competing business from customers or prospective customers of the Company or Prosperity or their\nrespective Subsidiaries.\n3. The Undersigned agrees that, other than as set forth in this Section 3, for the period (the "Non-Solicitation Period") beginning on the\nEffective Date and through the fifth anniversary of the Closing Date, the Undersigned will not, in any capacity, directly or indirectly, call on, solicit,\nor hire any current or past employee of the Company or any of its subsidiaries and/or of Prosperity or any of its subsidiaries, and will not assist any\nother person or entity in such activities. Additionally, the Undersigned agrees that for the Non-Solicitation Period he will not, in any capacity,\ndirectly or indirectly, induce any employee of the Company or any of its subsidiaries and/or of Prosperity or any of its subsidiaries to terminate\nemployment from the Company or any of its subsidiaries or from Prosperity or any of its subsidiaries, and will not assist any other person or entity in\nsuch activities. The Undersigned further agrees and acknowledges that he may be permitted to call on, solicit, or hire any such employee who is\nno\nlonger\nemployed by the Company or any of its subsidiaries or by Prosperity or any of its subsidiaries; provided the Undersigned receives prior\nwritten authorization from Prosperity before engaging in any such action. Provided, however, that after the second anniversary of the Closing Date,\nif Prosperity shall not be the surviving corporation in a merger then the Non-Solicitation Period shall end.\n4. The Undersigned acknowledges that the restrictions imposed by this Agreement are legitimate, reasonable and necessary to protect\nProsperity's proposed acquisition of the\n3\nCompany and the goodwill thereof. The Undersigned acknowledges that the scope and duration of the restrictions contained herein are reasonable in\nlight of the time that the Undersigned has been engaged in the business of the Company and the Undersigned's relationship with the customers of the\nCompany. The Undersigned further acknowledges that the restrictions contained herein are not burdensome to the Undersigned in light of the\nconsideration to be paid therefor and the other opportunities that remain open to the Undersigned. Moreover, the Undersigned acknowledges that he\nhas and will have other means available to him for the pursuit of his livelihood after the Effective Date.\n5. The Undersigned acknowledges and agrees that the breach of any of the covenants made by the Undersigned in this Agreement would cause\nirreparable injury to Prosperity, which could not sufficiently be remedied by monetary damages; and, therefore, that Prosperity shall be entitled\nto\nobtain such equitable relief as declaratory judgments; temporary, preliminary and permanent injunctions, without posting of any bond, and order of\nspecific performance to enforce those covenants or to prohibit any act or omission that constitutes a breach thereof. If Prosperity must bring suit to\nenforce this Agreement, the prevailing party shall be entitled to recover its attorneys' fees and costs related thereto.\n6. In the event that Prosperity shall file a lawsuit in any court of competent jurisdiction alleging a breach of the non-disclosure, non-\ncompetition or non-solicitation provisions of this Agreement by the Undersigned, then any time period set forth in this Agreement including the\ntime\nperiod set forth in Sections 2 and 3 above, shall be deemed tolled as of the time such lawsuit is filed and shall remain tolled until such dispute finally\nis resolved either by written settlement agreement resolving all claims raised in such lawsuit or by entry of a final judgment in such lawsuit and the\nfinal resolution of any post-judgment appellate proceedings.\n7. In consideration for the above obligations of the Undersigned, in addition to those matters set forth in the Recitals to this Agreement, the\nCompany agrees to provide the Undersigned with immediate access to new Confidential Information relating to the Company's business, which\nwill\nbecome Prosperity's business after the Closing Date. The Undersigned also will have immediate access to, or knowledge of, new Confidential\nInformation of third parties, such as actual and potential customers, suppliers, partners, joint venturers, investors, financing sources, etc., of the\nCompany and of Prosperity after the Closing Date. In addition, in exchange for the Undersigned's promises in Sections 2 and 3 of this Agreement,\nProsperity will pay the Undersigned a payment of $65,000 per year for two years, less applicable withholding taxes, payable in equal installments on\na semi-monthly basis beginning with the first installment to be made on the Closing Date and each subsequent installment to be made on the first and\nfifteenth day of each month following the Closing Date (or as soon as administratively practicable thereafter). Notwithstanding any provision of this\nAgreement to the contrary, no payment or benefit will be provided under this Section 7 until the earliest of (i) the date which is 6 months after the\ndate of the Undersigned's termination of employment, or (ii) the date of Undersigned's death. Payments to which the Undersigned would otherwise\nbe entitled during the 6-month period described above will be accumulated and paid in a lump sum on the first day of the seventh month after the\ndate of the Undersigned's termination of employment. In addition, if any provision of this Agreement (or of any award of compensation) would\ncause the Undersigned to incur any additional tax or interest under Section 409A of the Code or any regulations or\n4\nTreasury guidance promulgated thereunder, the Undersigned shall reform such provision; provided that Prosperity shall (A) maintain, to the\nmaximum extent practicable, the original intent of the applicable provision without violating the provisions of Section 409A of the Code and\n(B) notify and consult with the Undersigned regarding such amendments or modifications prior to the effective date of any such change.\n8. This Agreement exclusively shall be governed by and construed in accordance with the laws of the State of Texas. Exclusive venue of any\ndispute relating to this Agreement shall be, and is convenient in federal district court or in the district courts of Harris County, Texas. The\nUndersigned agrees that he will not contest venue in Harris County, Texas or the application of Texas laws to any dispute relating to this Agreement\nor the Undersigned's employment with the Company and/or Prosperity.\n9. This Agreement shall not be amended, modified, or altered in any manner except in writing signed by both parties.\n10. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining\nprovisions shall remain in full force and effect, as if this Agreement has been executed without any such invalid provisions having been included.\nSuch invalid provision shall be reformed in a manner that is both (i) legal and enforceable, and (ii) most closely represents the parties' original\nintent.\n11. EACH OF THE PARTIES HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM\nOR\nCAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR ANY DEALINGS BETWEEN THEM RELATING TO THE\nSUBJECT MATTER OF THIS AGREEMENT OR THE RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS\nWAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND\nTHAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,\nBREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO\nACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP THAT\nEACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE\nTO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND\nREPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND\nVOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS\nIRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A\nMUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION AND EXECUTED BY EACH OF THE PARTIES\nHERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS\nHERETO. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE\nCOURT.\n5\n12. This Agreement sets forth the entire agreement of the parties relating to the subject matter hereof, and supersede any and all other\nagreements or understandings, written or oral, between Prosperity and the Undersigned. The Undersigned has no oral representations,\nunderstandings or agreements with Prosperity or any of its officers, directors or representatives covering the same subject matter as this Agreement.\nThis Agreement is the final, complete and exclusive statement and expression of the agreement among the parties hereto and of all the terms of this\nAgreement, and it cannot be varied, contradicted or supplemented by evidence of any prior or contemporaneous oral or written agreements.\n13. This Agreement shall be binding upon and shall inure to the benefit of Prosperity and its successors and assigns, including, without\nlimitation, any successor by merger, consolidation or stock purchase of Prosperity and any entity or person that acquires all or substantially all of the\nassets of Prosperity.\n[Signature Page Follows]\n6\nIN\nWITNESS WHEREOF, the Undersigned has caused this Agreement to be duly executed as of the date first written above.\nUNDERSIGNED\n/s/ L. Don Stricklin\nL. Don Stricklin\nTEXAS UNITED BANCSHARES, INC.\nBy: /s/ Jeff A. Wilkinson\nName: Jeff A. Wilkinson\nTitle: Chief Financial Officer and Executive Vice\nPresident\nPROSPERITY BANCSHARES, INC.\nBy: /s/ David Zalman\nName: David Zalman\nTitle: Chairman of the Board and Chief Executive Officer\n7	EX-10.1 2 dex101.htm NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT\nExhibit 10.1\nNON-COMPETITION, NON-SOLICITATION\nAND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY AGREEMENT (this “Agreement”), which is effective as of\nJanuary 31, 2007 (the “Effective Date”), is by and among L. Don Stricklin, an individual who resides in La Grange, Texas (the “Undersigned”),\nTexas United Bancshares, Inc., a Texas corporation (the “Company”), and Prosperity Bancshares, Inc., a Texas corporation (“Prosperity\nBancshares”). Prosperity Bancshares and Prosperity Bank, a Texas banking association are collectively referred to herein as “Prosperity.”\nWHEREAS, this Agreement is being entered into in connection with the Agreement and Plan of Reorganization, dated as of July 18, 2006, as\namended, by and between Prosperity Bancshares and the Company (the “Merger Agreement”), pursuant to which the Company will merge with and\ninto Prosperity Bancshares, with Prosperity Bancshares as the surviving entity (the “Merger”); and\nWHEREAS, Prosperity Bancshares has required as a condition to consummation of the Merger that the Undersigned execute and deliver a\nnon-competition and non-solicitation agreement for the benefit of Prosperity and the Undersigned’s agreement to and compliance with the provisions\nof this Agreement are a material factor, material inducement and material condition to Prosperity’s participation in the transactions contemplated by\nthe Merger Agreement; and\nWHEREAS, Prosperity has agreed to pay the Undersigned $65,000 per year for two years in consideration for the Undersigned executing and\ndelivering this Agreement; and\nWHEREAS, the Undersigned will receive pecuniary and other benefits as a result of the Merger; and\nWHEREAS, the Undersigned, as a director, executive officer and/or shareholder of the Company, as the case may be, has had access to certain\nConfidential Information (as hereinafter defined), including, without limitation, information concerning the Company’s business and the\nrelationships between the Company, its subsidiaries and their customers, and the Undersigned will continue to have access to Confidential\nInformation and may have access to new Confidential Information of the Company; and\nWHEREAS, the Undersigned recognizes that Prosperity Bancshares would not have entered into the Merger Agreement without the\nUndersigned agreeing to the terms and conditions of this Agreement; and\nWHEREAS, any capitalized term not defined herein shall have the meaning set forth in the Merger Agreement;\n1\nNOW, THEREFORE, in consideration of the good and valuable consideration contained herein and in the Merger Agreement, the receipt and\nsufficiency of which are hereby acknowledged, the Undersigned hereby agrees as follows:\n1. The Undersigned agrees that he will not, at any time after the Effective Date and through and including the Closing Date make any\nunauthorized disclosure, directly or indirectly, of any Confidential Information of the Company or third parties, or make any use thereof, directly or\nindirectly. The Undersigned further agrees that he will not, at any time after the Effective Date make any unauthorized disclosure, directly or\nindirectly, of any Confidential Information of Prosperity or third parties, or make any use thereof, directly or indirectly and that he shall deliver\npromptly to Prosperity at any time after the Effective Time of the Merger, at its reasonable request, without retaining any copies, all documents and\nother material in the Undersigned’s possession at that time relating, directly or indirectly, to any Confidential Information or other information of the\nCompany, or Confidential Information or other information regarding third parties, learned in such person’s position as a director, officer or\nshareholder of the Company.\nFor purposes of this Agreement, “Confidential Information” means and includes Prosperity’s and/or the Company’s confidential and/or\nproprietary information and/or trade secrets, including those of their respective subsidiaries, including Prosperity Bank, Gateway National Bank,\nGNB Financial, n.a., Northwest Bank and State Bank, that have been and/or will be developed or used and that cannot be obtained readily by third\nparties from outside sources. Confidential Information includes, but is not limited to, the following: information regarding past, current and\nprospective customers and investors and business affiliates, employees, contractors, and the industry not generally known to the public; strategies,\nmethods, books, records, and documents; technical information concerning products, equipment, services, and processes; procurement procedures,\npricing, and pricing techniques, including contact names, services provided, pricing, type and amount of services used; financial data; pricing\nstrategies and price curves; positions; plans or strategies for expansion or acquisitions; budgets; research; financial and sales data; trading\nmethodologies and terms; communications information; evaluations, opinions and interpretations of information and data; marketing and\nmerchandising techniques; electronic databases; models; specifications; computer programs; contracts; bids or proposals; technologies and methods;\ntraining methods and processes; organizational structure; personnel information; payments or rates paid to consultants or other service providers; and\nother such confidential or proprietary information. The term “Confidential Information” does not include any information that (i) at the time of\ndisclosure or thereafter is generally available to and known to the public, other than by a breach of this Agreement by the disclosing party, (ii) was\navailable to the disclosing party on a non-confidential basis from a source other than the non-disclosing party or (iii) was independently acquired or\ndeveloped without violating any obligations of this Agreement. The Undersigned acknowledges that the Company’s and Prosperity’s business is\nhighly competitive, that this Confidential Information constitutes a valuable, special and unique asset to be acquired by Prosperity in the Merger and\nthat protection of such Confidential Information against unauthorized disclosure and use is of critical importance to the Company and Prosperity.\n2\n2. The Undersigned agrees that, for the period (the “Non-Competition Period”) beginning on the Effective Date and through the second\nanniversary of the Closing Date, the Undersigned will not, in any capacity, directly or indirectly:\na)\ncompete or engage, anywhere in the geographic area comprised of the fifty (50) mile radius surrounding any banking center of\nthe Company or Prosperity or any other banking center operated or owned directly or indirectly by Prosperity (the “Market\nArea”), in a business similar to that of the Company or Prosperity, or compete or engage in that type of business which the\nCompany or Prosperity has plans to engage in, or any business which the Company or Prosperity has engaged in during the\npreceding twelve (12) month period if within the twenty-four (24) months before the Closing Date, the Undersigned had access or\npotential access to Confidential Information regarding the proposed plans or the business in which the Company or Prosperity\nengaged or planned to engage; or\nb) take any action to invest in, own, manage, operate, control, participate in, be employed or engaged by or be connected in any\nmanner with any partnership, corporation or other business or entity engaging in a business similar to that of Prosperity or the\nCompany anywhere within the Market Area. Notwithstanding the foregoing, the Undersigned is permitted hereunder to own,\ndirectly or indirectly, up to one percent (1%) of the issued and outstanding securities of any publicly traded financial institution\nconducting business in the Market Area; or\nc)\ncall on, service or solicit competing business from customers or prospective customers of the Company or Prosperity or their\nrespective Subsidiaries.\n3. The Undersigned agrees that, other than as set forth in this Section 3, for the period (the “Non-Solicitation Period”) beginning on the\nEffective Date and through the fifth anniversary of the Closing Date, the Undersigned will not, in any capacity, directly or indirectly, call on, solicit,\nor hire any current or past employee of the Company or any of its subsidiaries and/or of Prosperity or any of its subsidiaries, and will not assist any\nother person or entity in such activities. Additionally, the Undersigned agrees that for the Non-Solicitation Period he will not, in any capacity,\ndirectly or indirectly, induce any employee of the Company or any of its subsidiaries and/or of Prosperity or any of its subsidiaries to terminate\nemployment from the Company or any of its subsidiaries or from Prosperity or any of its subsidiaries, and will not assist any other person or entity in\nsuch activities. The Undersigned further agrees and acknowledges that he may be permitted to call on, solicit, or hire any such employee who is no\nlonger employed by the Company or any of its subsidiaries or by Prosperity or any of its subsidiaries; provided the Undersigned receives prior\nwritten authorization from Prosperity before engaging in any such action. Provided, however, that after the second anniversary of the Closing Date,\nif Prosperity shall not be the surviving corporation in a merger then the Non-Solicitation Period shall end.\n4. The Undersigned acknowledges that the restrictions imposed by this Agreement are legitimate, reasonable and necessary to protect\nProsperity’s proposed acquisition of the\n3\nCompany and the goodwill thereof. The Undersigned acknowledges that the scope and duration of the restrictions contained herein are reasonable in\nlight of the time that the Undersigned has been engaged in the business of the Company and the Undersigned’s relationship with the customers of the\nCompany. The Undersigned further acknowledges that the restrictions contained herein are not burdensome to the Undersigned in light of the\nconsideration to be paid therefor and the other opportunities that remain open to the Undersigned. Moreover, the Undersigned acknowledges that he\nhas and will have other means available to him for the pursuit of his livelihood after the Effective Date.\n5. The Undersigned acknowledges and agrees that the breach of any of the covenants made by the Undersigned in this Agreement would cause\nirreparable injury to Prosperity, which could not sufficiently be remedied by monetary damages; and, therefore, that Prosperity shall be entitled to\nobtain such equitable relief as declaratory judgments; temporary, preliminary and permanent injunctions, without posting of any bond, and order of\nspecific performance to enforce those covenants or to prohibit any act or omission that constitutes a breach thereof. If Prosperity must bring suit to\nenforce this Agreement, the prevailing party shall be entitled to recover its attorneys’ fees and costs related thereto.\n6. In the event that Prosperity shall file a lawsuit in any court of competent jurisdiction alleging a breach of the non-disclosure, non-\ncompetition or non-solicitation provisions of this Agreement by the Undersigned, then any time period set forth in this Agreement including the time\nperiod set forth in Sections 2 and 3 above, shall be deemed tolled as of the time such lawsuit is filed and shall remain tolled until such dispute finally\nis resolved either by written settlement agreement resolving all claims raised in such lawsuit or by entry of a final judgment in such lawsuit and the\nfinal resolution of any post-judgment appellate proceedings.\n7. In consideration for the above obligations of the Undersigned, in addition to those matters set forth in the Recitals to this Agreement, the\nCompany agrees to provide the Undersigned with immediate access to new Confidential Information relating to the Company’s business, which will\nbecome Prosperity’s business after the Closing Date. The Undersigned also will have immediate access to, or knowledge of, new Confidential\nInformation of third parties, such as actual and potential customers, suppliers, partners, joint venturers, investors, financing sources, etc., of the\nCompany and of Prosperity after the Closing Date. In addition, in exchange for the Undersigned’s promises in Sections 2 and 3 of this Agreement,\nProsperity will pay the Undersigned a payment of $65,000 per year for two years, less applicable withholding taxes, payable in equal installments on\na semi-monthly basis beginning with the first installment to be made on the Closing Date and each subsequent installment to be made on the first and\nfifteenth day of each month following the Closing Date (or as soon as administratively practicable thereafter). Notwithstanding any provision of this\nAgreement to the contrary, no payment or benefit will be provided under this Section 7 until the earliest of (i) the date which is 6 months after the\ndate of the Undersigned’s termination of employment, or (ii) the date of Undersigned’s death. Payments to which the Undersigned would otherwise\nbe entitled during the 6-month period described above will be accumulated and paid in a lump sum on the first day of the seventh month after the\ndate of the Undersigned’s termination of employment. In addition, if any provision of this Agreement (or of any award of compensation) would\ncause the Undersigned to incur any additional tax or interest under Section 409A of the Code or any regulations or\n4\nTreasury guidance promulgated thereunder, the Undersigned shall reform such provision; provided that Prosperity shall (A) maintain, to the\nmaximum extent practicable, the original intent of the applicable provision without violating the provisions of Section 409A of the Code and\n(B) notify and consult with the Undersigned regarding such amendments or modifications prior to the effective date of any such change.\n8. This Agreement exclusively shall be governed by and construed in accordance with the laws of the State of Texas. Exclusive venue of any\ndispute relating to this Agreement shall be, and is convenient in federal district court or in the district courts of Harris County, Texas. The\nUndersigned agrees that he will not contest venue in Harris County, Texas or the application of Texas laws to any dispute relating to this Agreement\nor the Undersigned’s employment with the Company and/or Prosperity.\n9. This Agreement shall not be amended, modified, or altered in any manner except in writing signed by both parties.\n10. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining\nprovisions shall remain in full force and effect, as if this Agreement has been executed without any such invalid provisions having been included.\nSuch invalid provision shall be reformed in a manner that is both (i) legal and enforceable, and (ii) most closely represents the parties’ original\nintent.\n11. EACH OF THE PARTIES HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR\nCAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR ANY DEALINGS BETWEEN THEM RELATING TO THE\nSUBJECT MATTER OF THIS AGREEMENT OR THE RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS\nWAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND\nTHAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,\nBREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO\nACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP THAT\nEACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE\nTO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND\nREPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND\nVOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS\nIRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A\nMUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION AND EXECUTED BY EACH OF THE PARTIES\nHERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS\nHERETO. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE\nCOURT.\n5\n12. This Agreement sets forth the entire agreement of the parties relating to the subject matter hereof, and supersede any and all other\nagreements or understandings, written or oral, between Prosperity and the Undersigned. The Undersigned has no oral representations,\nunderstandings or agreements with Prosperity or any of its officers, directors or representatives covering the same subject matter as this Agreement.\nThis Agreement is the final, complete and exclusive statement and expression of the agreement among the parties hereto and of all the terms of this\nAgreement, and it cannot be varied, contradicted or supplemented by evidence of any prior or contemporaneous oral or written agreements.\n13. This Agreement shall be binding upon and shall inure to the benefit of Prosperity and its successors and assigns, including, without\nlimitation, any successor by merger, consolidation or stock purchase of Prosperity and any entity or person that acquires all or substantially all of the\nassets of Prosperity.\n[Signature Page Follows]\n6\nIN WITNESS WHEREOF, the Undersigned has caused this Agreement to be duly executed as of the date first written above.\nUNDERSIGNED\n/s/ L. Don Stricklin\nL. Don Stricklin\nTEXAS UNITED BANCSHARES, INC.\nBy: /s/ Jeff A. Wilkinson\nName: Jeff A. Wilkinson\nTitle: Chief Financial Officer and Executive Vice\nPresident\nPROSPERITY BANCSHARES, INC.\nBy: /s/ David Zalman\nName: David Zalman\nTitle: Chairman of the Board and Chief Executive Officer\n7
+a87c00460edbc6ccd0451589ae609b9b.pdf	effective_date jurisdiction party term	EX-99.(D)(1) 12 f81012tex99-d1.txt EXHIBIT 99.(D)(1) Exhibit (d)(1) MUTUAL NON-DISCLOSURE\nAGREEMENT This Non-Disclosure Agreement (this "Agreement") is made as of October 5, 2001 by and between\nInnoveda, Inc., having a principal place of business at 293 Boston Post Road West, Marlboro, Massachusetts 01752\n("Innoveda") and Mentor Graphics Corporation having a principal place of business at 8005 S.W. Boeckman Road,\nWilsonville, Oregon 97070 (the "Company"). In the course of dealings between Innoveda and Company, either party\nmay learn or receive from the other party "Confidential Information" (as that term is later defined in this Agreement) for\nthe purpose of considering various business relationships between Company and Innoveda. Company and Innoveda\ndesire to establish and set forth each party's obligations with respect to the other party's Confidential Information. In\nconsideration of the foregoing, Company and Innoveda agree as follows: 1. The term "Confidential Information" shall\nmean any and all data, know-how, trade secrets, software, technology, intellectual property, financial information,\nproduct plans, marketing plans, documentation and other information which is related to the products, technology,\nintellectual property or business of either party and which either party learns or receives from the other party, except that\nwhich the receiving party can establish: (1) was, on the date of this Agreement, generally known to the public; or (2)\nbecame generally known to the public after the date of this Agreement other than as a result of the act or omission of the\nreceiving party or such party's directors, officers, partners or employees; or (3) was rightfully known to the receiving\nparty prior to learning or receiving same from the other party; or (4) is or was disclosed by the disclosing party to third\nparties generally without restrictions on use and disclosure; or (5) the receiving party lawfully received from a third party\nwithout that third party's breach of agreement or obligation of trust; or (6) was independently developed by the receiving\nparty without the use of the other party's Confidential Information; or (7) is not disclosed to the receiving party in\ntangible form and conspicuously labeled as "confidential," "proprietary" or some similar designation, or, if disclosed\norally, is not stated to be confidential at the time of disclosure and summarized in writing within fifteen days after\ndisclosure and conspicuously labeled as confidential or some similar designation. 2. Each party considers all of its\nConfidential Information to be confidential and proprietary. All of the disclosing party's Confidential Information shall at\nall times, and throughout the world, remain the property of the disclosing party, exclusively, and all applicable rights in\npatents, copyrights and trade secrets, and all other intellectual property rights, shall remain in the disclosing party,\nexclusively. 3. The receiving party shall not directly or indirectly use any of the disclosing party's Confidential\nInformation for any purpose, except for the purpose set forth above. 4. The receiving party shall not disclose, or permit\naccess to, any portion of the other party's Confidential Information to any person except if: (1) such person is an\nemployee or consultant of the receiving party and has a need to know the Confidential Information for the purpose set\nforth above; and (2) such person is legally bound by a written contract to comply with the provisions of this Agreement.\nThe receiving party shall use the same degree of care that the receiving party uses with respect to its own information of\na similar nature, but in any event reasonable care, to prevent disclosure of the other party's Confidential Information.\nProvided, however, Confidential Information of the disclosing party may be disclosed by the receiving party as required\nby applicable law or court order but only if prior to any such disclosure, such party shall, to the extent permitted by\napplicable law, first give the other party a reasonable opportunity to review the proposed disclosure and to comment\nthereon and to provide for the protection of the Confidential Information. 5. This Agreement shall be effective as of the\ndate first written above and shall continue until either party terminates this Agreement upon ten days prior written notice\nto the other party. Each party's obligations with respect to each item of Confidential Information which it learns or\nreceives from the other party prior to the date of termination of this Agreement shall terminate five years after the date of\ntermination of this Agreement. Promptly after termination of this Agreement, each party shall return to the other party all\nof the other party's Confidential Information in tangible form, which is in its possession at the time of termination. 6.\nThis Agreement is the complete and exclusive statement of the agreement between the parties and supersedes all prior\nwritten and oral communications and agreements relating to the subject matter hereof; however, if a specific item or\nitems of Confidential Information are governed by another valid and binding written agreement between the parties\nhereto, such other written agreement shall govern in the event of conflict with this Agreement. No modification,\ntermination, extension, renewal or waiver of any provision of this Agreement shall be effective unless in writing and\nsigned by an authorized representative of each party. AGREED TO AND ACCEPTED BY: INNOVEDA, INC.\nMENTOR GRAPHICS CORPORATION By /s/ Peter T. Johnson By /s/ Yvonne Lawson -------------------------------------\n-- -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - Title Chief Legal Officer Title Associate General Counsel ----------------------------------- -------\n-- -- - -- - -- - -- - -- - -- - -- Date 10/5/01 Date 10/5/01 ------------------------------------ ------------------------------- 2	EX-99.(D)(1) 12 £81012tex99-d1.txt EXHIBIT 99.(D)(1) Exhibit (d)(1) MUTUAL NON-DISCLOSURE\nAGREEMENT This Non-Disclosure Agreement (this "Agreement") is made as of October 5, 2001 by and between\nInnoveda, Inc., having a principal place of business at 293 Boston Post Road West, Marlboro, Massachusetts 01752\n("Innoveda") and Mentor Graphics Corporation having a principal place of business at 8005 S.W. Boeckman Road,\nWilsonville, Oregon 97070 (the "Company"). In the course of dealings between Innoveda and Company, either party\nmay learn or receive from the other party "Confidential Information" (as that term is later defined in this Agreement) for\nthe purpose of considering various business relationships between Company and Innoveda. Company and Innoveda\ndesire to establish and set forth each party's obligations with respect to the other party's Confidential Information. In\nconsideration of the foregoing, Company and Innoveda agree as follows: 1. The term "Confidential Information" shall\nmean any and all data, know-how, trade secrets, software, technology, intellectual property, financial information,\nproduct plans, marketing plans, documentation and other information which is related to the products, technology,\nintellectual property or business of either party and which either party learns or receives from the other party, except that\nwhich the receiving party can establish: (1) was, on the date of this Agreement, generally known to the public; or (2)\nbecame generally known to the public after the date of this Agreement other than as a result of the act or omission of the\nreceiving party or such party's directors, officers, partners or employees; or (3) was rightfully known to the receiving\nparty prior to learning or receiving same from the other party; or (4) is or was disclosed by the disclosing party to third\nparties generally without restrictions on use and disclosure; or (5) the receiving party lawfully received from a third party\nwithout that third party's breach of agreement or obligation of trust; or (6) was independently developed by the receiving\nparty without the use of the other party's Confidential Information; or (7) is not disclosed to the receiving party in\ntangible form and conspicuously labeled as "confidential," "proprietary" or some similar designation, or, if disclosed\norally, is not stated to be confidential at the time of disclosure and summarized in writing within fifteen days after\ndisclosure and conspicuously labeled as confidential or some similar designation. 2. Each party considers all of its\nConfidential Information to be confidential and proprietary. All of the disclosing party's Confidential Information shall at\nall times, and throughout the world, remain the property of the disclosing party, exclusively, and all applicable rights in\npatents, copyrights and trade secrets, and all other intellectual property rights, shall remain in the disclosing party,\nexclusively. 3. The receiving party shall not directly or indirectly use any of the disclosing party's Confidential\nInformation for any purpose, except for the purpose set forth above. 4. The receiving party shall not disclose, or permit\naccess to, any portion of the other party's Confidential Information to any person except if: (1) such person is an\nemployee or consultant of the receiving party and has a need to know the Confidential Information for the purpose set\nforth above; and (2) such person is legally bound by a written contract to comply with the provisions of this Agreement.\nThe receiving party shall use the same degree of care that the receiving party uses with respect to its own information of\na similar nature, but in any event reasonable care, to prevent disclosure of the other party's Confidential Information.\nProvided, however, Confidential Information of the disclosing party may be disclosed by the receiving party as required\nby applicable law or court order but only if prior to any such disclosure, such party shall, to the extent permitted by\napplicable law, first give the other party a reasonable opportunity to review the proposed disclosure and to comment\nthereon and to provide for the protection of the Confidential Information. 5. This Agreement shall be effective as of the\ndate first written above and shall continue until either party terminates this Agreement upon ten days prior written notice\nto the other party. Each party's obligations with respect to each item of Confidential Information which it learns or\nreceives from the other party prior to the date of termination of this Agreement shall terminate five years after the date of\ntermination of this Agreement. Promptly after termination of this Agreement, each party shall return to the other party all\nof the other party's Confidential Information in tangible form, which is in its possession at the time of termination. 6.\nThis Agreement is the complete and exclusive statement of the agreement between the parties and supersedes all prior\nwritten and oral communications and agreements relating to the subject matter hereof; however, if a specific item or\nitems of Confidential Information are governed by another valid and binding written agreement between the parties\nhereto, such other written agreement shall govern in the event of conflict with this Agreement. No modification,\ntermination, extension, renewal or waiver of any provision of this Agreement shall be effective unless in writing and\nsigned by an authorized representative of each party. AGREED TO AND ACCEPTED BY: INNOVEDA, INC.\nMENTOR GRAPHICS CORPORATION By /s/ Peter T. Johnson By /s/ Yvonne Lawson -------=-===-=mmmmmmmmmmmmmmeomean\n-------------------------------- Title Chief Legal Officer Title Associate General Counsel --------=====-mmmmmmmmmmmmmmmeee eeee\n---------------------- Date 10/5/01 Date 10/5/01 =-mmnmmmmmmmm e e e e e )	EX-99.(D)(1) 12 f81012tex99-d1.tx EXHIBIT 99.(D)(1) Exhibit (d)(1) MUTUAL NON-DISCLOSURE\nAGREEMENT This Non-Disclosure Agreement (this "Agreement") is made as of October 5, 2001 by and between\nInnoveda, Inc., having a principal place of business at 293 Boston Post Road West, Marlboro, Massachusetts 01752\n("Innoveda") and Mentor Graphics Corporation having a principal place of business at 8005 S.W. Boeckman Road,\nWilsonville, Oregon 97070 (the "Company"). In the course of dealings between Innoveda and Company, either party\nmay learn or receive from the other party "Confidential Information" (as that term is later defined in this Agreement) for\nthe purpose of considering various business relationships between Company and Innoveda. Company and Innoveda\ndesire to establish and set forth each party's obligations with respect to the other party's Confidential Information. In\nconsideration of the foregoing, Company and Innoveda agree as follows: 1. The term "Confidential Information" shall\nmean any and all data, know-how, trade secrets, software, technology, intellectual property, financial information\nproduct plans, marketing plans, documentation and other information which is related to the products, technology,\nintellectual property or business of either party and which either party learns or receives from the other party, except that\nwhich\nthe\nreceiving\nparty\ncan\nestablish:\n(1)\nwas,\non\nthe\ndate\nof\nthis\nAgreement,\ngenerally\nknown\nto\nthe\npublic;\nor\n(2)\nbecame generally known to the public after the date of this Agreement other than as a result of the act or omission of the\nreceiving party or such party's directors, officers, partners or employees; or (3) was rightfully known to the receiving\nparty prior to learning or receiving same from the other party; or (4) is or was disclosed by the disclosing party to third\nparties generally without restrictions on use and disclosure; or (5) the receiving party lawfully received from a third party\nwithout that third party's breach of agreement or obligation of trust; or (6) was independently developed by the receiving\nparty without the use of the other party's Confidential Information; or (7) is not disclosed to the receiving party\nin\ntangible form and conspicuously labeled as "confidential," "proprietary" or some similar designation, or, if disclosed\norally, is not stated to be confidential at the time of disclosure and summarized in writing within fifteen days after\ndisclosure and conspicuously labeled as confidential or some similar designation. 2. Each party considers all of its\nConfidential Information to be confidential and proprietary. All of the disclosing party's Confidential Information shall at\nall times, and throughout the world, remain the property of the disclosing party, exclusively, and all applicable rights in\npatents, copyrights and trade secrets, and all other intellectual property rights, shall remain in the disclosing party,\nexclusively. 3. The receiving party shall not directly or indirectly use any of the disclosing party's Confidential\nInformation for any purpose, except for the purpose set forth above. 4. The receiving party shall not disclose, or permit\naccess to, any portion of the other party's Confidential Information to any person except if: (1) such person is an\nemployee or consultant of the receiving party and has a need to know the Confidential Information for the purpose set\nforth above; and (2) such person is legally bound by a written contract to comply with the provisions of this Agreement.\nThe\nreceiving\nparty\nshall\nuse\nthe\nsame\ndegree\nof\ncare\nthat\nthe\nreceiving\nparty\nuses\nwith\nrespect\nto\nits\nown\ninformation\nof\na similar nature, but in any event reasonable care, to prevent disclosure of the other party's Confidential Information.\nProvided, however, Confidential Information of the disclosing party may be disclosed by the receiving party as required\nby applicable law or court order but only if prior to any such disclosure, such party shall, to the extent permitted by\napplicable law, first give the other party a reasonable opportunity to review the proposed disclosure and to comment\nthereon and to provide for the protection of the Confidential Information. 5. This Agreement shall be effective as of the\ndate first written above and shall continue until either party terminates this Agreement upon ten days prior written notice\nto the other party. Each party's obligations with respect to each item of Confidential Information which it learns or\nreceives from the other party prior to the date of termination of this Agreement shall terminate five years after the date of\ntermination of this Agreement. Promptly after termination of this Agreement, each party shall return to the other party all\nof the other party's Confidential Information in tangible form, which is in its possession at the time of termination. 6.\nThis Agreement is the complete and exclusive statement of the agreement between the parties and supersedes all prior\nwritten and oral communications and agreements relating to the subject matter hereof; however, if a specific item or\nitems of Confidential Information are governed by another valid and binding written agreement between the parties\nhereto, such other written agreement shall govern in the event of conflict with this Agreement. No modification,\ntermination, extension, renewal or waiver of any provision of this Agreement shall be effective unless in writing and\nsigned by an authorized representative of each party. AGREED TO AND ACCEPTED BY: INNOVEDA, INC.\nMENTOR GRAPHICS CORPORATION By /s/ Peter T. Johnson By /s/ Yvonne Lawson\nTitle Chief Legal Officer Title Associate General Counsel\nDate 10/5/01 Date 10/5/01\n2	EX-99.(D)(1) 12 f81012tex99-d1.txt EXHIBIT 99.(D)(1) Exhibit (d)(1) MUTUAL NON-DISCLOSURE\nAGREEMENT This Non-Disclosure Agreement (this "Agreement") is made as of October 5, 2001 by and between\nInnoveda, Inc., having a principal place of business at 293 Boston Post Road West, Marlboro, Massachusetts 01752\n("Innoveda") and Mentor Graphics Corporation having a principal place of business at 8005 S.W. Boeckman Road,\nWilsonville, Oregon 97070 (the "Company"). In the course of dealings between Innoveda and Company, either party\nmay learn or receive from the other party "Confidential Information" (as that term is later defined in this Agreement) for\nthe purpose of considering various business relationships between Company and Innoveda. Company and Innoveda\ndesire to establish and set forth each party's obligations with respect to the other party's Confidential Information. In\nconsideration of the foregoing, Company and Innoveda agree as follows: 1. The term "Confidential Information" shall\nmean any and all data, know-how, trade secrets, software, technology, intellectual property, financial information,\nproduct plans, marketing plans, documentation and other information which is related to the products, technology,\nintellectual property or business of either party and which either party learns or receives from the other party, except that\nwhich the receiving party can establish: (1) was, on the date of this Agreement, generally known to the public; or (2)\nbecame generally known to the public after the date of this Agreement other than as a result of the act or omission of the\nreceiving party or such party's directors, officers, partners or employees; or (3) was rightfully known to the receiving\nparty prior to learning or receiving same from the other party; or (4) is or was disclosed by the disclosing party to third\nparties generally without restrictions on use and disclosure; or (5) the receiving party lawfully received from a third party\nwithout that third party's breach of agreement or obligation of trust; or (6) was independently developed by the receiving\nparty without the use of the other party's Confidential Information; or (7) is not disclosed to the receiving party in\ntangible form and conspicuously labeled as "confidential," "proprietary" or some similar designation, or, if disclosed\norally, is not stated to be confidential at the time of disclosure and summarized in writing within fifteen days after\ndisclosure and conspicuously labeled as confidential or some similar designation. 2. Each party considers all of its\nConfidential Information to be confidential and proprietary. All of the disclosing party's Confidential Information shall at\nall times, and throughout the world, remain the property of the disclosing party, exclusively, and all applicable rights in\npatents, copyrights and trade secrets, and all other intellectual property rights, shall remain in the disclosing party,\nexclusively. 3. The receiving party shall not directly or indirectly use any of the disclosing party's Confidential\nInformation for any purpose, except for the purpose set forth above. 4. The receiving party shall not disclose, or permit\naccess to, any portion of the other party's Confidential Information to any person except if: (1) such person is an\nemployee or consultant of the receiving party and has a need to know the Confidential Information for the purpose set\nforth above; and (2) such person is legally bound by a written contract to comply with the provisions of this Agreement.\nThe receiving party shall use the same degree of care that the receiving party uses with respect to its own information of\na similar nature, but in any event reasonable care, to prevent disclosure of the other party's Confidential Information.\nProvided, however, Confidential Information of the disclosing party may be disclosed by the receiving party as required\nby applicable law or court order but only if prior to any such disclosure, such party shall, to the extent permitted by\napplicable law, first give the other party a reasonable opportunity to review the proposed disclosure and to comment\nthereon and to provide for the protection of the Confidential Information. 5. This Agreement shall be effective as of the\ndate first written above and shall continue until either party terminates this Agreement upon ten days prior written notice\nto the other party. Each party's obligations with respect to each item of Confidential Information which it learns or\nreceives from the other party prior to the date of termination of this Agreement shall terminate five years after the date of\ntermination of this Agreement. Promptly after termination of this Agreement, each party shall return to the other party all\nof the other party's Confidential Information in tangible form, which is in its possession at the time of termination. 6.\nThis Agreement is the complete and exclusive statement of the agreement between the parties and supersedes all prior\nwritten and oral communications and agreements relating to the subject matter hereof; however, if a specific item or\nitems of Confidential Information are governed by another valid and binding written agreement between the parties\nhereto, such other written agreement shall govern in the event of conflict with this Agreement. No modification,\ntermination, extension, renewal or waiver of any provision of this Agreement shall be effective unless in writing and\nsigned by an authorized representative of each party. AGREED TO AND ACCEPTED BY: INNOVEDA, INC.\nMENTOR GRAPHICS CORPORATION By /s/ Peter T. Johnson By /s/ Yvonne Lawson -------------------------------------\n-- -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - Title Chief Legal Officer Title Associate General Counsel ----------------------------------- -------\n-- -- - -- - -- - -- - -- - -- - -- Date 10/5/01 Date 10/5/01 ------------------------------------ ------------------------------- 2
+a936f23f68928e47d1a2372391080b3a.pdf	effective_date jurisdiction party term	NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this “Agreement”) is made effective as of April 23, 2007 by and between ADA-ES, Inc. (“ADA”)\nand Industrial Furnace Company (the “Company”). In connection with discussions between ADA and the Company (individually, a “Party” and\ncollectively, the “Parties”) regarding a proposed transaction between them (the “Proposed Transaction”), each of the Parties may receive from time\nto time hereafter Confidential Information from the other. The Parties agree as follows:\n1. Confidential Information.\n(a) For purposes hereof “Confidential Information” shall mean any and all materials and information which any Party makes available to the\nother Party or which has or may come into possession of any Party in connection with the Proposed Transaction and which is labeled or marked\nconfidential, including, without limitation, the following: information relating to the business, financial condition, operations, assets and liabilities of\na Party or its affiliates; business plans; software programs and enhancements, upgrades and modifications thereof; user and other manuals;\ndocuments; specifications; financial reports, statements and projections; client lists, marketing material, data, data listing, and information; project\nplans and case studies; references; and all copies, summaries, outlines or other representations of any of the foregoing.\n(b) The Confidential Information will be used by the Parties solely for the purpose of evaluating the Proposed Transaction.\n(c) Each Party hereby acknowledges that the Confidential Information obtained by it is valuable and proprietary trade secret information of the\nother Party, the disclosure of which would be harmful to such other Party. Each Party agrees to hold such Confidential Information in the strictest\nconfidence and not to disclose same or release it to any other person except to its Representatives (as defined below) who need to know the\ninformation for purposes of evaluating the Proposed Transaction and as otherwise permitted hereunder. It is further agreed that each Party shall take\nreasonable measures to ensure that its agents, representatives, officers, directors, employees, consultants, agencies or potential financial or equity\npartners (collectively, “Representatives”) do not disclose such Confidential Information, except as permitted hereunder.\n(d) No Party will reverse engineer, disassemble, decompile or copy the Confidential Information except as permitted hereunder. No Party shall,\ndirectly or indirectly ( including in the conduct of its business), use, or permit to be used, the Confidential Information obtained from any other Party\nto that Party’s detriment, whether or not the former Party benefits from such detrimental use.\n(e) The term person as used in this Agreement shall be broadly interpreted to include, without limitation, the media, any governmental agency,\ndepartment or other body or instrumentality and any corporation, partnership, limited liability company, association, group, individual or other entity.\n-1-\nPage A11-5\n2. Excluded Information. The term “Confidential Information” does not include any Confidential Information disclosed by a party which (a) at the\ntime of disclosure to the receiving Party or thereafter is generally available to and known by the public (other than as a result of a disclosure in\nviolation of this Agreement), (b) was available to such Party on a non-confidential basis from a source other than a Party, provided that such a source\nis not and was not bound by a confidentiality agreement with such Party, or (c) has been independently acquired or developed by such Party without\nviolating any of the obligations under this Agreement. Confidential Information shall not be deemed to fall within the exception of subparts (a) to (c)\nabove merely because it is included in a document which also includes information that does fall within such exceptions.\n3. Other Disclosures. In addition to the foregoing, each Party will not disclose to any person (other than to such party’s Representatives), without the\nprior written consent of the other party, that (a) any investigations, discussions or negotiations are taking place concerning the Proposed Transaction,\n(b) the Confidential Information has been exchanged, (c) a party has expressed an interest or submitted an indication of interest in connection with\nthe Proposed Transaction, or (d) any of the terms, conditions or other facts with respect to such indication of interest of the Proposed Transaction,\nincluding the status thereof, other than the fact that a Party is no longer pursuing the Proposed Transaction in the event such Party decides not to\npursue the Proposed Transaction. Nothing contained herein shall in any way prohibit any of ADA’s direct or indirect subsidiaries or their respective\nRepresentatives, from providing any information, data and/or advice to, or entering into any transactions with, third parties which may involve the\nassets which are the subject of the Proposed Transaction; provided, that, such subsidiaries and its Representatives do not use or disclose any\nConfidential Information of the Company or its affiliates that is prohibited from disclosure hereby.\n4. Legally Compelled Disclosures. In the event that a Party becomes legally compelled (by deposition, interrogatory, request for documents, order,\nsubpoena, civil investigative demand or similar process issued by a court of competent jurisdiction or by a government body) to disclose any of the\nConfidential Information, prompt prior written notice of any such requirement shall be provided to the other Party so that such Party may seek a\nprotective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or\nother remedy is not obtained, and irrespective of whether or not compliance with the provisions hereof is waived, only that portion of the\nConfidential Information which the Party subject to such legal compulsion is advised in writing by its counsel is legally required to be disclosed\nshall be disclosed and reasonable efforts shall be made to obtain assurance that confidential treatment will be accorded such Confidential\nInformation.\n5. Return of Information. If so requested by a party, (i) all Confidential Information shall be returned to the originating Party or destroyed by the\nreceiving Party, at the receiving Party’s option, and (ii) each Party shall destroy all additional copies of the other Party’s Confidential Information in\nits possession and all copies of any analyses, compilations, studies or other documents prepared, used or created containing or reflecting any\nConfidential Information.\n6. Representations. The originating Party hereby represents and warrants that it has the right and authority to disclose the Confidential Information\ndisclosed or to be disclosed by it, pursuant to, and for the purposes of, this Agreement and shall indemnify and hold the receiving\n-2-\nPage A11-6\nParty harmless for any liability incurred by it to third parties resulting from the breach of such representation and warranty. Each Party hereby\nacknowledges that although each Party shall endeavor to include in the Confidential Information provided by such Party all information known to\nsuch Party which such Party believes to be relevant for the purpose of the other Party’s investigation, unless\notherwise stated in writing, neither Party has made or shall make any representation or warranty, express or implied, as to the accuracy or\ncompleteness of the Confidential Information.\n7. Equitable Relief: Jurisdiction. Each Party agrees that a Party shall be entitled to seek equitable relief, including without limitation, injunctive relief\nand specific performance, in the event of any breach of the provisions of this Agreement by the other Party, in addition to all other remedies\navailable at law or in equity. Each Party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the\nState of Colorado or of the United States of America located in the State of Colorado for any actions, suits or proceedings arising out of or relating to\nthis Agreement and each Party hereby irrevocably and unconditionally\nwaives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement, in such courts, and hereby further\nirrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any\nsuch court has been brought in an inconvenient forum. The Parties irrevocably waive any right to a trial by jury for any claims or counterclaims\narising hereunder.\n8. Miscellaneous. The Parties understand and agree that no contract or agreement providing for the entering into of the Proposed Transaction shall be\ndeemed to exist between the Parties as a result of the execution and delivery of this Agreement or in connection with the exchange of the\nConfidential Information unless and until a further written agreement has been executed and delivered. This Agreement may be modified or waived\nonly by a separate writing signed by each of the Parties. The Agreement contains the entire agreement between the Parties regarding its subject\nmatter and supersedes all prior agreements, understanding, arrangements and\ndiscussions between the Parties regarding such subject matter. It is further understood and agreed that no failure or delay by any Party in exercising\nany right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further\nexercise thereof or the exercise of any right, power or privilege hereunder. Each Party agrees that all of the provisions of this Agreement will apply\nto all affiliates of the Parties, as such term may be broadly interpreted, to the same extent as if they were signatories to this Agreement. This\nAgreement is for benefit of the Parties and their successors in interest. This Agreement may be executed in two or more counterparts, with each\ncounterpart constituting a single original. This Agreement shall terminate upon the sooner to occur of the execution by the Parties of a definitive\nagreement in connection with a Proposed Transaction and two (2) years from the date hereof.\n-3-\nPage A11-7\nIN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the date first above written.\nADA-ES, Inc.\nBy: /s/ Richard Schlager\nName: Richard Schlager\nTitle: Vice President\nIndustrial Furnace Company, Inc.\nBy: /s/ William A. Mansfield\nName: William A. Mansfield\nTitle: V.P. - Engineering\n-4-\nPage A11-8	NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this “Agreement”) is made effective as of April 23, 2007 by and between ADA-ES, Inc. (“ADA”)\nand Industrial Furnace Company (the “Company”). In connection with discussions between ADA and the Company (individually, a “Party” and\ncollectively, the “Parties”) regarding a proposed transaction between them (the “Proposed Transaction”), each of the Parties may receive from time\nto time hereafter Confidential Information from the other. The Parties agree as follows:\n1. Confidential Information.\n(a) For purposes hereof “Confidential Information” shall mean any and all materials and information which any Party makes available to the\nother Party or which has or may come into possession of any Party in connection with the Proposed Transaction and which is labeled or marked\nconfidential, including, without limitation, the following: information relating to the business, financial condition, operations, assets and liabilities of\na Party or its affiliates; business plans; software programs and enhancements, upgrades and modifications thereof; user and other manuals;\ndocuments; specifications; financial reports, statements and projections; client lists, marketing material, data, data listing, and information; project\nplans and case studies; references; and all copies, summaries, outlines or other representations of any of the foregoing.\n(b) The Confidential Information will be used by the Parties solely for the purpose of evaluating the Proposed Transaction.\n(c) Each Party hereby acknowledges that the Confidential Information obtained by it is valuable and proprietary trade secret information of the\nother Party, the disclosure of which would be harmful to such other Party. Each Party agrees to hold such Confidential Information in the strictest\nconfidence and not to disclose same or release it to any other person except to its Representatives (as defined below) who need to know the\ninformation for purposes of evaluating the Proposed Transaction and as otherwise permitted hereunder. It is further agreed that each Party shall take\nreasonable measures to ensure that its agents, representatives, officers, directors, employees, consultants, agencies or potential financial or equity\npartners (collectively, “Representatives”) do not disclose such Confidential Information, except as permitted hereunder.\n(d) No Party will reverse engineer, disassemble, decompile or copy the Confidential Information except as permitted hereunder. No Party shall,\ndirectly or indirectly (including in the conduct of its business), use, or permit to be used, the Confidential Information obtained from any other Party\nto that Party’s detriment, whether or not the former Party benefits from such detrimental use.\n(e) The term person as used in this Agreement shall be broadly interpreted to include, without limitation, the media, any governmental agency,\ndepartment or other body or instrumentality and any corporation, partnership, limited liability company, association, group, individual or other entity.\n-1-\nPage A11-5\n2. Excluded Information. The term “Confidential Information” does not include any Confidential Information disclosed by a party which (a) at the\ntime of disclosure to the receiving Party or thereafter is generally available to and known by the public (other than as a result of a disclosure in\nviolation of this Agreement), (b) was available to such Party on a non-confidential basis from a source other than a Party, provided that such a source\nis not and was not bound by a confidentiality agreement with such Party, or (c) has been independently acquired or developed by such Party without\nviolating any of the obligations under this Agreement. Confidential Information shall not be deemed to fall within the exception of subparts (a) to (c)\nabove merely because it is included in a document which also includes information that does fall within such exceptions.\n3. Other Disclosures. In addition to the foregoing, each Party will not disclose to any person (other than to such party’s Representatives), without the\nprior written consent of the other party, that (a) any investigations, discussions or negotiations are taking place concerning the Proposed Transaction,\n(b) the Confidential Information has been exchanged, (c) a party has expressed an interest or submitted an indication of interest in connection with\nthe Proposed Transaction, or (d) any of the terms, conditions or other facts with respect to such indication of interest of the Proposed Transaction,\nincluding the status thereof, other than the fact that a Party is no longer pursuing the Proposed Transaction in the event such Party decides not to\npursue the Proposed Transaction. Nothing contained herein shall in any way prohibit any of ADA’s direct or indirect subsidiaries or their respective\nRepresentatives, from providing any information, data and/or advice to, or entering into any transactions with, third parties which may involve the\nassets which are the subject of the Proposed Transaction; provided, that, such subsidiaries and its Representatives do not use or disclose any\nConfidential Information of the Company or its affiliates that is prohibited from disclosure hereby.\n4. Legally Compelled Disclosures. In the event that a Party becomes legally compelled (by deposition, interrogatory, request for documents, order,\nsubpoena, civil investigative demand or similar process issued by a court of competent jurisdiction or by a government body) to disclose any of the\nConfidential Information, prompt prior written notice of any such requirement shall be provided to the other Party so that such Party may seek a\nprotective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or\nother remedy is not obtained, and irrespective of whether or not compliance with the provisions hereof is waived, only that portion of the\nConfidential Information which the Party subject to such legal compulsion is advised in writing by its counsel is legally required to be disclosed\nshall be disclosed and reasonable efforts shall be made to obtain assurance that confidential treatment will be accorded such Confidential\nInformation.\n5. Return of Information. If so requested by a party, (i) all Confidential Information shall be returned to the originating Party or destroyed by the\nreceiving Party, at the receiving Party’s option, and (ii) each Party shall destroy all additional copies of the other Party’s Confidential Information in\nits possession and all copies of any analyses, compilations, studies or other documents prepared, used or created containing or reflecting any\nConfidential Information.\n6. Representations. The originating Party hereby represents and warrants that it has the right and authority to disclose the Confidential Information\ndisclosed or to be disclosed by it, pursuant to, and for the purposes of, this Agreement and shall indemnify and hold the receiving\n_2-\nPage A11-6\nParty harmless for any liability incurred by it to third parties resulting from the breach of such representation and warranty. Each Party hereby\nacknowledges that although each Party shall endeavor to include in the Confidential Information provided by such Party all information known to\nsuch Party which such Party believes to be relevant for the purpose of the other Party’s investigation, unless\notherwise stated in writing, neither Party has made or shall make any representation or warranty, express or implied, as to the accuracy or\ncompleteness of the Confidential Information.\n7. Equitable Relief: Jurisdiction. Each Party agrees that a Party shall be entitled to seek equitable relief, including without limitation, injunctive relief\nand specific performance, in the event of any breach of the provisions of this Agreement by the other Party, in addition to all other remedies\navailable at law or in equity. Each Party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the\nState of Colorado or of the United States of America located in the State of Colorado for any actions, suits or proceedings arising out of or relating to\nthis Agreement and each Party hereby irrevocably and unconditionally\nwaives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement, in such courts, and hereby further\nirrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any\nsuch court has been brought in an inconvenient forum. The Parties irrevocably waive any right to a trial by jury for any claims or counterclaims\narising hereunder.\n8. Miscellaneous. The Parties understand and agree that no contract or agreement providing for the entering into of the Proposed Transaction shall be\ndeemed to exist between the Parties as a result of the execution and delivery of this Agreement or in connection with the exchange of the\nConfidential Information unless and until a further written agreement has been executed and delivered. This Agreement may be modified or waived\nonly by a separate writing signed by each of the Parties. The Agreement contains the entire agreement between the Parties regarding its subject\nmatter and supersedes all prior agreements, understanding, arrangements and\ndiscussions between the Parties regarding such subject matter. It is further understood and agreed that no failure or delay by any Party in exercising\nany right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further\nexercise thereof or the exercise of any right, power or privilege hereunder. Each Party agrees that all of the provisions of this Agreement will apply\nto all affiliates of the Parties, as such term may be broadly interpreted, to the same extent as if they were signatories to this Agreement. This\nAgreement is for benefit of the Parties and their successors in interest. This Agreement may be executed in two or more counterparts, with each\ncounterpart constituting a single original. This Agreement shall terminate upon the sooner to occur of the execution by the Parties of a definitive\nagreement in connection with a Proposed Transaction and two (2) years from the date hereof.\n_3-\nPage A11-7\nIN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the date first above written. Page A11-8\nADA-ES, Inc.\nBy:  /s/Richard Schlager\nName: Richard Schlager\nTitle:  Vice President\nIndustrial Furnace Company, Inc.\nBy:  /s/William A. Mansfield\nName: William A. Mansfield\nTitle: V.P. - Engineering	NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this "Agreement") is made effective as of April 23, 2007 by and between ADA-ES, Inc. ("ADA")\nand Industrial Furnace Company (the "Company"). In connection with discussions between ADA and the Company (individually, a "Party" and\ncollectively, the "Parties") regarding a proposed transaction between them (the "Proposed Transaction"), each of the Parties may receive from time\nto time hereafter Confidential Information from the other. The Parties agree as follows:\n1. Confidential Information.\n(a) For purposes hereof "Confidential Information" shall mean any and all materials and information which any Party makes available to the\nother Party or which has or may come into possession of any Party in connection with the Proposed Transaction and which is labeled or marked\nconfidential, including, without limitation, the following: information relating to the business, financial condition, operations, assets and liabilities of\na Party or its affiliates; business plans; software programs and enhancements, upgrades and modifications thereof; user and other manuals;\ndocuments; specifications; financial reports, statements and projections; client lists, marketing material, data, data listing, and information; project\nplans and case studies; references; and all copies, summaries, outlines or other representations of any of the foregoing.\n(b) The Confidential Information will be used by the Parties solely for the purpose of evaluating the Proposed Transaction.\n(c) Each Party hereby acknowledges that the Confidential Information obtained by it is valuable and proprietary trade secret information of the\nother Party, the disclosure of which would be harmful to such other Party. Each Party agrees to hold such Confidential Information in the strictest\nconfidence and not to disclose same or release it to any other person except to its Representatives (as defined below) who need to know the\ninformation for purposes of evaluating the Proposed Transaction and as otherwise permitted hereunder. It is further agreed that each Party shall take\nreasonable measures to ensure that its agents, representatives, officers, directors, employees, consultants, agencies or potential financial or equity\npartners (collectively, "Representatives" do not disclose such Confidentia Information, except as permitted hereunder.\n(d) No Party will reverse engineer, disassemble, decompile or copy the Confidential Information except as permitted hereunder. No Party\nshall,\ndirectly or indirectly C including in the conduct of its business), use, or permit to be used, the Confidential Information obtained from any other Party\nto that Party's detriment, whether or not the former Party benefits from such detrimental use.\n(e) The term person as used in this Agreement shall be broadly interpreted to include, without limitation, the media, any governmental agency,\ndepartment or other body or instrumentality and any corporation, partnership, limited liability company, association, group, individual or other entity.\n1\nPage A11-5\n2. Excluded Information. The term "Confidential Information" does not include any Confidential Information disclosed by a party which (a) at the\ntime of disclosure to the receiving Party or thereafter is generally available to and known by the public (other than as a result of a disclosure\nin\nviolation of this Agreement), (b) was available to such Party on a non-confidential basis from a source other than a Party, provided that such a source\nis not and was not bound by a confidentiality agreement with such Party, or (c) has been independently acquired or developed by such Party without\nviolating any of the obligations under this Agreement. Confidential Information shall not be deemed to fall within the exception of subparts (a) to (c)\nabove merely because it is included in a document which also includes information that does fall within such exceptions.\n3. Other Disclosures. In addition to the foregoing, each Party will not disclose to any person (other than to such party's Representatives), without the\nprior written consent of the other party, that (a) any investigations, discussions or negotiations are taking place concerning the Proposed Transaction,\n(b) the Confidential Information has been exchanged, (c) a party has expressed an interest or submitted an indication of interest in connection with\nthe Proposed Transaction, or (d) any of the terms, conditions or other facts with respect to such indication of interest of the Proposed Transaction,\nincluding the status thereof, other than the fact that a Party is no longer pursuing the Proposed Transaction in the event such Party decides not to\npursue the Proposed Transaction. Nothing contained herein shall in any way prohibit any of ADA's direct or indirect subsidiaries or their respective\nRepresentatives, from providing any information, data and/or advice to, or entering into any transactions with, third parties which may involve the\nassets which are the subject of the Proposed Transaction; provided, that, such subsidiaries and its Representatives do not use or disclose any\nConfidential Information of the Company or its affiliates that is prohibited from disclosure hereby.\n4. Legally. Compelled Disclosures. In the event that a Party becomes legally compelled (by deposition, interrogatory, request for documents, order,\nsubpoena, civil investigative demand or similar process issued by a court of competent jurisdiction or by a government body) to disclose any of the\nConfidential Information, prompt prior written notice of any such requirement shall be provided to the other Party so that such Party may seek a\nprotective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order\nor\nother remedy is not obtained, and irrespective of whether or not compliance with the provisions hereof is waived, only that portion of the\nConfidential Information which the Party subject to such legal compulsion is advised in writing by its counsel is legally required to be disclosed\nshall be disclosed and reasonable efforts shall be made to obtain assurance that confidential treatment will be accorded such Confidential\nInformation.\n5. Return of Information. If so requested by a party, (i) all Confidential Information shall be returned to the originating Party or destroyed by the\nreceiving Party, at the receiving Party's option, and (ii) each Party shall destroy all additional copies of the other Party's Confidential Information in\nits possession and all copies of any analyses, compilations, studies or other documents prepared, used or created containing or reflecting any\nConfidential Information.\n6. Representations. The originating Party hereby represents and warrants that it has the right and authority to disclose the Confidential Information\ndisclosed or to be disclosed by it, pursuant to, and for the purposes of, this Agreement and shall indemnify and hold the receiving\n2\nPage A11-6\nParty harmless for any liability incurred by it to third parties resulting from the breach of such representation and warranty. Each Party hereby\nacknowledges that although each Party shall endeavor to include in the Confidential Information provided by such Party all information known\nto\nsuch Party which such Party believes to be relevant for the purpose of the other Party's investigation, unless\notherwise stated in writing, neither Party has made or shall make any representation or warranty, express or implied, as to the accuracy or\ncompleteness of the Confidential Information.\n7. Equitable Relief: Jurisdiction. Each Party agrees that a Party shall be entitled to seek equitable relief, including without limitation, injunctive relief\nand specific performance, in the event of any breach of the provisions of this Agreement by the other Party, in addition to all other remedies\navailable at law or in equity. Each Party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the\nState of Colorado or of the United States of America located in the State of Colorado for any actions, suits or proceedings arising out of or relating to\nthis Agreement and each Party hereby irrevocably and unconditionally\nwaives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement, in such courts, and hereby further\nirrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any\nsuch court has been brought in an inconvenient forum. The Parties irrevocably waive any right to a trial by jury for any claims or counterclaims\narising hereunder.\n8.\nMiscellaneous. The Parties understand and agree that no contract or agreement providing for the entering into of the Proposed Transaction shall be\ndeemed to exist between the Parties as a result of the execution and delivery of this Agreement or in connection with the exchange of the\nConfidential Information unless and until a further written agreement has been executed and delivered. This Agreement may be modified or waived\nonly by a separate writing signed by each of the Parties. The Agreement contains the entire agreement between the Parties regarding its subject\nmatter and supersedes all prior agreements, understanding, arrangements and\ndiscussions between the Parties regarding such subject matter. It is further understood and agreed that no failure or delay by any Party in exercising\nany right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further\nexercise thereof or the exercise of any right, power or privilege hereunder. Each Party agrees that all of the provisions of this Agreement will apply\nto\nall affiliates of the Parties, as such term may be broadly interpreted, to the same extent as if they were signatories to this Agreement. This\nAgreement is for benefit of the Parties and their successors in interest. This Agreement may be executed in two or more counterparts, with each\ncounterpart constituting a single original. This Agreement shall terminate upon the sooner to occur of the execution by the Parties of a definitive\nagreement in connection with a Proposed Transaction and two (2) years from the date hereof.\n3\nPage A11-7\nIN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the date first above written.\nADA-ES, Inc.\nBy:\n/s/ Richard Schlager\nName: Richard Schlager\nTitle: Vice President\nIndustrial Furnace Company, Inc.\nBy: /s/ William A. Mansfield\nName: William A. Mansfield\nTitle: V.P. - Engineering\n4 -\nPage A11-8	NON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this “Agreement”) is made effective as of April 23, 2007 by and between ADA-ES, Inc. (“ADA”)\nand Industrial Furnace Company (the “Company”). In connection with discussions between ADA and the Company (individually, a “Party” and\ncollectively, the “Parties”) regarding a proposed transaction between them (the “Proposed Transaction”), each of the Parties may receive from time\nto time hereafter Confidential Information from the other. The Parties agree as follows:\n1. Confidential Information.\n(a) For purposes hereof “Confidential Information” shall mean any and all materials and information which any Party makes available to the\nother Party or which has or may come into possession of any Party in connection with the Proposed Transaction and which is labeled or marked\nconfidential, including, without limitation, the following: information relating to the business, financial condition, operations, assets and liabilities of\na Party or its affiliates; business plans; software programs and enhancements, upgrades and modifications thereof; user and other manuals;\ndocuments; specifications; financial reports, statements and projections; client lists, marketing material, data, data listing, and information; project\nplans and case studies; references; and all copies, summaries, outlines or other representations of any of the foregoing.\n(b) The Confidential Information will be used by the Parties solely for the purpose of evaluating the Proposed Transaction.\n(c) Each Party hereby acknowledges that the Confidential Information obtained by it is valuable and proprietary trade secret information of the\nother Party, the disclosure of which would be harmful to such other Party. Each Party agrees to hold such Confidential Information in the strictest\nconfidence and not to disclose same or release it to any other person except to its Representatives (as defined below) who need to know the\ninformation for purposes of evaluating the Proposed Transaction and as otherwise permitted hereunder. It is further agreed that each Party shall take\nreasonable measures to ensure that its agents, representatives, officers, directors, employees, consultants, agencies or potential financial or equity\npartners (collectively, “Representatives”) do not disclose such Confidential Information, except as permitted hereunder.\n(d) No Party will reverse engineer, disassemble, decompile or copy the Confidential Information except as permitted hereunder. No Party shall,\ndirectly or indirectly ( including in the conduct of its business), use, or permit to be used, the Confidential Information obtained from any other Party\nto that Party’s detriment, whether or not the former Party benefits from such detrimental use.\n(e) The term person as used in this Agreement shall be broadly interpreted to include, without limitation, the media, any governmental agency,\ndepartment or other body or instrumentality and any corporation, partnership, limited liability company, association, group, individual or other entity.\n-1-\nPage A11-5\n2. Excluded Information. The term “Confidential Information” does not include any Confidential Information disclosed by a party which (a) at the\ntime of disclosure to the receiving Party or thereafter is generally available to and known by the public (other than as a result of a disclosure in\nviolation of this Agreement), (b) was available to such Party on a non-confidential basis from a source other than a Party, provided that such a source\nis not and was not bound by a confidentiality agreement with such Party, or (c) has been independently acquired or developed by such Party without\nviolating any of the obligations under this Agreement. Confidential Information shall not be deemed to fall within the exception of subparts (a) to (c)\nabove merely because it is included in a document which also includes information that does fall within such exceptions.\n3. Other Disclosures. In addition to the foregoing, each Party will not disclose to any person (other than to such party’s Representatives), without the\nprior written consent of the other party, that (a) any investigations, discussions or negotiations are taking place concerning the Proposed Transaction,\n(b) the Confidential Information has been exchanged, (c) a party has expressed an interest or submitted an indication of interest in connection with\nthe Proposed Transaction, or (d) any of the terms, conditions or other facts with respect to such indication of interest of the Proposed Transaction,\nincluding the status thereof, other than the fact that a Party is no longer pursuing the Proposed Transaction in the event such Party decides not to\npursue the Proposed Transaction. Nothing contained herein shall in any way prohibit any of ADA’s direct or indirect subsidiaries or their respective\nRepresentatives, from providing any information, data and/or advice to, or entering into any transactions with, third parties which may involve the\nassets which are the subject of the Proposed Transaction; provided, that, such subsidiaries and its Representatives do not use or disclose any\nConfidential Information of the Company or its affiliates that is prohibited from disclosure hereby.\n4. Legally Compelled Disclosures. In the event that a Party becomes legally compelled (by deposition, interrogatory, request for documents, order,\nsubpoena, civil investigative demand or similar process issued by a court of competent jurisdiction or by a government body) to disclose any of the\nConfidential Information, prompt prior written notice of any such requirement shall be provided to the other Party so that such Party may seek a\nprotective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or\nother remedy is not obtained, and irrespective of whether or not compliance with the provisions hereof is waived, only that portion of the\nConfidential Information which the Party subject to such legal compulsion is advised in writing by its counsel is legally required to be disclosed\nshall be disclosed and reasonable efforts shall be made to obtain assurance that confidential treatment will be accorded such Confidential\nInformation.\n5. Return of Information. If so requested by a party, (i) all Confidential Information shall be returned to the originating Party or destroyed by the\nreceiving Party, at the receiving Party’s option, and (ii) each Party shall destroy all additional copies of the other Party’s Confidential Information in\nits possession and all copies of any analyses, compilations, studies or other documents prepared, used or created containing or reflecting any\nConfidential Information.\n6. Representations. The originating Party hereby represents and warrants that it has the right and authority to disclose the Confidential Information\ndisclosed or to be disclosed by it, pursuant to, and for the purposes of, this Agreement and shall indemnify and hold the receiving\n-2-\nPage A11-6\nParty harmless for any liability incurred by it to third parties resulting from the breach of such representation and warranty. Each Party hereby\nacknowledges that although each Party shall endeavor to include in the Confidential Information provided by such Party all information known to\nsuch Party which such Party believes to be relevant for the purpose of the other Party’s investigation, unless\notherwise stated in writing, neither Party has made or shall make any representation or warranty, express or implied, as to the accuracy or\ncompleteness of the Confidential Information.\n7. Equitable Relief: Jurisdiction. Each Party agrees that a Party shall be entitled to seek equitable relief, including without limitation, injunctive relief\nand specific performance, in the event of any breach of the provisions of this Agreement by the other Party, in addition to all other remedies\navailable at law or in equity. Each Party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the\nState of Colorado or of the United States of America located in the State of Colorado for any actions, suits or proceedings arising out of or relating to\nthis Agreement and each Party hereby irrevocably and unconditionally\nwaives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement, in such courts, and hereby further\nirrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any\nsuch court has been brought in an inconvenient forum. The Parties irrevocably waive any right to a trial by jury for any claims or counterclaims\narising hereunder.\n8. Miscellaneous. The Parties understand and agree that no contract or agreement providing for the entering into of the Proposed Transaction shall be\ndeemed to exist between the Parties as a result of the execution and delivery of this Agreement or in connection with the exchange of the\nConfidential Information unless and until a further written agreement has been executed and delivered. This Agreement may be modified or waived\nonly by a separate writing signed by each of the Parties. The Agreement contains the entire agreement between the Parties regarding its subject\nmatter and supersedes all prior agreements, understanding, arrangements and\ndiscussions between the Parties regarding such subject matter. It is further understood and agreed that no failure or delay by any Party in exercising\nany right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further\nexercise thereof or the exercise of any right, power or privilege hereunder. Each Party agrees that all of the provisions of this Agreement will apply\nto all affiliates of the Parties, as such term may be broadly interpreted, to the same extent as if they were signatories to this Agreement. This\nAgreement is for benefit of the Parties and their successors in interest. This Agreement may be executed in two or more counterparts, with each\ncounterpart constituting a single original. This Agreement shall terminate upon the sooner to occur of the execution by the Parties of a definitive\nagreement in connection with a Proposed Transaction and two (2) years from the date hereof.\n-3-\nPage A11-7\nIN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of the date first above written.\nADA-ES, Inc.\nBy: /s/ Richard Schlager\nName: Richard Schlager\nTitle: Vice President\nIndustrial Furnace Company, Inc.\nBy: /s/ William A. Mansfield\nName: William A. Mansfield\nTitle: V.P. - Engineering\n-4-\nPage A11-8
+aa1aff1f6643fbe404819e99cff4ca3c.pdf	effective_date jurisdiction party term	EX-10 .3 2 exhibit_10 -3.htm NON-COMPETITION/NON-SOLICITATION/NON-DISCLOSURE AGREEMENT\nNON-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE AGREEMENT (“Agreement”) is entered\ninto between Giant Beverage, Inc. (“Giant”), Anthony Iemmiti, and Frank Iemmiti on April 26, 2018 (the “Effective Date”).\nWHEREAS, Life on Earth, Inc. (the “Company”) has entered into and closed on a Purchase Agreement with Anthony\nIemmiti and Frank Iemmiti as the Sellers in connection with the sale of Giant to the Company for various consideration\n(the “Purchase Agreement”).\nWHEREAS, Anthony Iemmiti and Frank Iemmiti, were the two and sole owners of Giant prior to the Company’s\npurchase of Giant and have access to: (a) Giant’s trade secrets and other valuable confidential business information;\nand (ii) substantial relationships with Giant’s existing and prospective customers and clients.\nWHEREAS, Giant, Anthony Iemmiti and Frank Iemmiti desire to enter into this Agreement to memorialize the terms and\nconditions of this Agreement.\nNOW, THEREFORE, in consideration of the terms to the Purchase Agreement and addendums thereto, Iemmiti hereby\nagrees to the following.\nSECTION 1\nTERM OF AGREEMENT\nThis Agreement shall remain in effect for a period of 2 years after the Effective Date.\nSECTION 2\nAGREEMENT NOT TO COMPETE\nAnthony Iemmiti and Frank Iemmiti agree that during the term of this Agreement they shall not become employed,\ndirectly or indirectly, or form any business, whether as an independent contractor, consultant, or otherwise, with any\nsimilar business to Giant located in New York City, which includes the five New York City boroughs of Manhattan,\nBrooklyn, Queens, State Island and the Bronx, and Rockland, Westchester, Nassau and Suffolk counties.\nSECTION 3\nAGREEMENT NOT TO SOLICIT\nAnthony Iemmiti and Frank Iemmiti further agree that during the term of this Agreement, they shall not, directly or\nindirectly, solicit the business of any customer of Giant, regardless of whether they were responsible for generating such\ncustomer’s business for Giant. In addition, Anthony Iemmiti and Frank Iemmiti agree that during the term of this\nAgreement and this provision, they shall not directly or indirectly solicit the employment of any Giant employee.\nSECTION 4\nAGREEMENT NOT TO DISCLOSE\nDuring and after the term of this Agreement, Anthony Iemmiti and Frank Iemmiti shall use their best efforts and utmost\ndiligence to guard and protect all of the Giant’s trade secrets and any other confidential business information and shall\nnot, either during or after the term of this Agreement, for any reason, use in any capacity, or divulge or disclose in any\nmanner, to any person or entity, the identity of Giant’s customers, methods of operation, marketing or promotional\nmethods, processes, techniques, systems, formulas, programs, trade secrets, or other confidential information relating\nto Giant’s business. Upon termination of Iemmiti’s position as General Manager, for any reason, Frank Iemmiti shall\nimmediately return and deliver to Giant, all records and papers and all materials which bear trade secrets or other\nconfidential business information.\nSECTION 5\nREPRESENTATIONS AND ACKNOWLEDGMENTS OF ANTHONY IEMMITI AND FRANK IEMMITI\nAnthony Iemmiti and Frank Iemmiti hereby agree that the duration of the anti-competitive covenants set forth in Section\n2 of this Agreement are reasonable, and that their geographic scope is not unduly restrictive. Furthermore, Iemmiti\nacknowledges that Giant has a legitimate business interest in enforcing Section 2, 3 and 4 of this Agreement, because\nof Iemmiti’s access to valuable and confidential information about Giant, as well as confidential information about\nGiant’s existing and prospective customers.\nSECTION 6\nENFORCEMENT\nAnthony Iemmiti and Frank Iemmiti acknowledge and agree that money damages cannot fully compensate Giant in the\nevent of Iemmiti’s violation of the provisions of this Agreement, Thus, in the event of a breach of any of the provisions of\nthis Agreement, Anthony Iemmiti and Frank Iemmiti agree that Giant, upon application to a court of competent\njurisdiction, shall be entitled to an injunction restraining Iemmiti from any further breach of the terms or provisions of this\nAgreement and in such case Iemmiti’s sole remedy, in the event of the wrongful entry of such injunction, shall be the\ndissolution of such injunction. Iemmiti hereby waives any and all claims for damages by reason of the wrongful issuance\nof any such injunction.\nSECTION 7\nMODIFICATION AND WAIVER\nThis Agreement may not be modified or amended except as agreed to in writing by the parties hereto. No term or\ncondition of this Agreement shall be deemed to have been waived, nor shall there be any estoppel against the\nenforcement of any provision of this Agreement, except by written instrument of the party charged with such waiver or\nestoppel. No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such\nwaiver shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or\ncondition for the future, or as to any act other than that specifically waived.\nSECTION 8\nATTORNEYS’ FEES\nIn the event of any proceeding occurring out of or involving this Agreement, the prevailing party shall be entitled to the\nrecovery of reasonable attorneys’ fees, expenses, and costs, including fees and costs to enforce an award.\nSECTION 9\nSEVERABILITY\nThe invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement, which shall remain in foil force and effect.\nSECTION 10\nHEADINGS FOR REFERENCE ONLY\nThe headings of the Sections herein are included solely for convenience of reference and shall not control the meaning\nor the interpretation of any of the provisions of this Agreement.\nSECTION 11\nAPPLICABLE LAW\nThis Agreement shall be governed in all respects and be interpreted by and under the laws of the State of New York,\nand venue for any action hereunder shall lie in New York City, New York.\nSECTION 12\nNO CONTRACT OF EMPLOYMENT\nThis Agreement shall not, under any circumstances, be deemed to constitute an employment contract between Giant\nand Frank Iemmiti. Nothing contained in this Agreement shall be deemed to give Frank Iemmiti the right to be retained\nin the service of Giant, or to interfere with the right of Giant to discharge Frank Iemmiti at any time.\nIN WITNESS WHEREOF, Giant and Iemmiti have duly executed this Agreement this 26th day of April 2018.\n/s/ Anthony Iemmiti\nAnthony Iemmiti\n/s/ Frank Iemmiti\nFrank Iemmiti\nTHE GIANT BEVERAGE CO, INC.\n/s/ Fernando Oswaldo Leonzo\nFernando Oswaldo Leonzo\nChief Executive Officer	EX-10.3 2 exhibit_10-3.htm NON-COMPETITION/NON-SOLICITATION/NON-DISCLOSURE AGREEMENT\nNON-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE AGREEMENT (“Agreement”) is entered\ninto between Giant Beverage, Inc. (“Giant”), Anthony lemmiti, and Frank lemmiti on April 26, 2018 (the “Effective Date”).\nWHEREAS, Life on Earth, Inc. (the “Company”) has entered into and closed on a Purchase Agreement with Anthony\nlemmiti and Frank lemmiti as the Sellers in connection with the sale of Giant to the Company for various consideration\n(the “Purchase Agreement”).\nWHEREAS, Anthony lemmiti and Frank lemmiti, were the two and sole owners of Giant prior to the Company’s\npurchase of Giant and have access to: (a) Giant's trade secrets and other valuable confidential business information;\nand (ii) substantial relationships with Giant’s existing and prospective customers and clients.\nWHEREAS, Giant, Anthony lemmiti and Frank lemmiti desire to enter into this Agreement to memorialize the terms and\nconditions of this Agreement.\nNOW, THEREFORE, in consideration of the terms to the Purchase Agreement and addendums thereto, lemmiti hereby\nagrees to the following.\nSECTION 1\nTERM OF AGREEMENT\nThis Agreement shall remain in effect for a period of 2 years after the Effective Date.\nSECTION 2\nAGREEMENT NOT TO COMPETE\nAnthony lemmiti and Frank lemmiti agree that during the term of this Agreement they shall not become employed,\ndirectly or indirectly, or form any business, whether as an independent contractor, consultant, or otherwise, with any\nsimilar business to Giant located in New York City, which includes the five New York City boroughs of Manhattan,\nBrooklyn, Queens, State Island and the Bronx, and Rockland, Westchester, Nassau and Suffolk counties.\nSECTION 3\nAGREEMENT NOT TO SOLICIT\nAnthony lemmiti and Frank lemmiti further agree that during the term of this Agreement, they shall not, directly or\nindirectly, solicit the business of any customer of Giant, regardless of whether they were responsible for generating such\ncustomer’s business for Giant. In addition, Anthony lemmiti and Frank lemmiti agree that during the term of this\nAgreement and this provision, they shall not directly or indirectly solicit the employment of any Giant employee.\nSECTION 4\nAGREEMENT NOT TO DISCLOSE\nDuring and after the term of this Agreement, Anthony lemmiti and Frank lemmiti shall use their best efforts and utmost\ndiligence to guard and protect all of the Giant’s trade secrets and any other confidential business information and shall\nnot, either during or after the term of this Agreement, for any reason, use in any capacity, or divulge or disclose in any\nmanner, to any person or entity, the identity of Giant’s customers, methods of operation, marketing or promotional\nmethods, processes, techniques, systems, formulas, programs, trade secrets, or other confidential information relating\nto Giant’s business. Upon termination of lemmiti’s position as General Manager, for any reason, Frank lemmiti shall\nimmediately return and deliver to Giant, all records and papers and all materials which bear trade secrets or other\nconfidential business information.\nSECTION 5\nREPRESENTATIONS AND ACKNOWLEDGMENTS OF ANTHONY IEMMITI AND FRANK IEMMITI\nAnthony lemmiti and Frank lemmiti hereby agree that the duration of the anti-competitive covenants set forth in Section\n2 of this Agreement are reasonable, and that their geographic scope is not unduly restrictive. Furthermore, lemmiti\nacknowledges that Giant has a legitimate business interest in enforcing Section 2, 3 and 4 of this Agreement, because\nof lemmiti's access to valuable and confidential information about Giant, as well as confidential information about\nGiant's existing and prospective customers.\nSECTION 6\nENFORCEMENT\nAnthony lemmiti and Frank lemmiti acknowledge and agree that money damages cannot fully compensate Giant in the\nevent of lemmiti’s violation of the provisions of this Agreement, Thus, in the event of a breach of any of the provisions of\nthis Agreement, Anthony lemmiti and Frank lemmiti agree that Giant, upon application to a court of competent\njurisdiction, shall be entitled to an injunction restraining lemmiti from any further breach of the terms or provisions of this\nAgreement and in such case lemmiti’s sole remedy, in the event of the wrongful entry of such injunction, shall be the\ndissolution of such injunction. lemmiti hereby waives any and all claims for damages by reason of the wrongful issuance\nof any such injunction.\nSECTION 7\nMODIFICATION AND WAIVER\nThis Agreement may not be modified or amended except as agreed to in writing by the parties hereto. No term or\ncondition of this Agreement shall be deemed to have been waived, nor shall there be any estoppel against the\nenforcement of any provision of this Agreement, except by written instrument of the party charged with such waiver or\nestoppel. No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such\nwaiver shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or\ncondition for the future, or as to any act other than that specifically waived.\nSECTION 8\nATTORNEYS’ FEES\nIn the event of any proceeding occurring out of or involving this Agreement, the prevailing party shall be entitled to the\nrecovery of reasonable attorneys’ fees, expenses, and costs, including fees and costs to enforce an award.\nSECTION 9\nSEVERABILITY\nThe invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement, which shall remain in foil force and effect.\nSECTION 10\nHEADINGS FOR REFERENCE ONLY\nThe headings of the Sections herein are included solely for convenience of reference and shall not control the meaning\nor the interpretation of any of the provisions of this Agreement.\nSECTION 11\nAPPLICABLE LAW\nThis Agreement shall be governed in all respects and be interpreted by and under the laws of the State of New York,\nand venue for any action hereunder shall lie in New York City, New York.\nSECTION 12\nNO CONTRACT OF EMPLOYMENT\nThis Agreement shall not, under any circumstances, be deemed to constitute an employment contract between Giant\nand Frank lemmiti. Nothing contained in this Agreement shall be deemed to give Frank lemmiti the right to be retained\nin the service of Giant, or to interfere with the right of Giant to discharge Frank lemmiti at any time.\nIN WITNESS WHEREOF, Giant and lemmiti have duly executed this Agreement this 26th day of April 2018.\n/s/ Anthony Temmiti\nAnthony Iemmiti\n/s/ Frank Iemmiti\nFrank Iemmiti\nTHE GIANT BEVERAGE CO, INC.\n/s/ Fernando Oswaldo Leonzo\nFernando Oswaldo Leonzo\nChief Executive Officer	EX-10.3 2 exhibit_10-3.htm NON COMPETITIONNON-SOLICITATIONNON-DISCLOSUREAGR AGREEMENT\nNON-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE AGREEMENT ("Agreement") is entered\ninto between Giant Beverage, Inc. ("Giant"), Anthony lemmiti, and Frank lemmiti on April 26, 2018 (the "Effective Date").\nWHEREAS, Life on Earth, Inc. (the "Company") has entered into and closed on a Purchase Agreement with Anthony\nlemmiti\nand\nFrank\nlemmiti\nas\nthe\nSellers\nin\nconnection\nwith\nthe\nsale\nof\nGiant\nto\nthe\nCompany\nfor\nvarious\nconsideration\n(the "Purchase Agreement").\nWHEREAS, Anthony lemmiti and Frank lemmiti, were the two and sole owners of Giant prior to the Company's\npurchase of Giant and have access to: (a) Giant's trade secrets and other valuable confidential business information;\nand (ii) substantial relationships with Giant's existing and prospective customers and clients.\nWHEREAS, Giant, Anthony lemmiti and Frank lemmiti desire to enter into this Agreement to memorialize the terms and\nconditions of this Agreement.\nNOW, THEREFORE, in consideration of the terms to the Purchase Agreement and addendums thereto, lemmiti hereby\nagrees to the following.\nSECTION 1\nTERM OF AGREEMENT\nThis Agreement shall remain in effect for a period of 2 years after the Effective Date.\nSECTION 2\nAGREEMENT NOT TO COMPETE\nAnthony lemmiti and Frank lemmiti agree that during the term of this Agreement they shall not become employed,\ndirectly or indirectly, or form any business, whether as an independent contractor, consultant, or otherwise, with\nany\nsimilar business to Giant located in New York City, which includes the five New York City boroughs of Manhattan,\nBrooklyn, Queens, State Island and the Bronx, and Rockland, Westchester, Nassau and Suffolk counties.\nSECTION 3\nAGREEMENT NOT TO SOLICIT\nAnthony lemmiti and Frank lemmiti further agree that during the term of this Agreement, they shall not, directly or\nindirectly, solicit the business of any customer of Giant, regardless of whether they were responsible for generating such\ncustomer's business for Giant. In addition, Anthony lemmiti and Frank lemmiti agree that during the term of this\nAgreement and this provision, they shall not directly or indirectly solicit the employment of any Giant employee.\nSECTION 4\nAGREEMENT NOT TO DISCLOSE\nDuring and after the term of this Agreement, Anthony lemmiti and Frank lemmiti shall use their best efforts and utmost\ndiligence to guard and protect all of the Giant's trade secrets and any other confidential business information and shall\nnot, either during or after the term of this Agreement, for any reason, use in any capacity, or divulge or disclose in any\nmanner, to any person or entity, the identity of Giant's customers, methods of operation, marketing or promotional\nmethods, processes, techniques, systems, formulas, programs, trade secrets, or other confidential information relating\nto Giant's business. Upon termination of lemmiti's position as General Manager, for any reason, Frank lemmiti shal\nimmediately return and deliver to Giant, all records and papers and all materials which bear trade secrets or other\nconfidential business information.\nSECTION 5\nREPRESENTATIONS AND ACKNOWLEDGMENTS OF ANTHONY IEMMITI AND FRANK IEMMITI\nAnthony\nlemmiti\nand\nFrank\nlemmiti\nhereby\nagree\nthat\nthe\nduration\nof\nthe\nanti-competitive\ncovenants\nset\nforth\nin\nSection\n2 of this Agreement are reasonable, and that their geographic scope is not unduly restrictive. Furthermore, lemmiti\nacknowledges that Giant has a legitimate business interest in enforcing Section 2, 3 and 4 of this Agreement, because\nof lemmiti's access to valuable and confidential information about Giant, as well as confidential information about\nGiant's existing and prospective customers.\nSECTION 6\nENFORCEMENT\nAnthony lemmiti and Frank lemmiti acknowledge and agree that money damages cannot fully compensate Giant in the\nevent of lemmiti's violation of the provisions of this Agreement, Thus, in the event of a breach of any of the provisions of\nthis Agreement, Anthony lemmiti and Frank lemmiti agree that Giant, upon application to a court of competent\njurisdiction, shall be entitled to an injunction restraining lemmiti from any further breach of the terms or provisions of this\nAgreement and in such case lemmiti's sole remedy, in the event of the wrongful entry of such injunction, shall be the\ndissolution of such injunction. lemmiti hereby waives any and all claims for damages by reason of the wrongful issuance\nof any such injunction.\nSECTION 7\nMODIFICATION AND WAIVER\nThis Agreement may not be modified or amended except as agreed to in writing by the parties hereto. No term or\ncondition of this Agreement shal be deemed to have been waived, nor shall there be any estoppel against the\nenforcement\nof\nany\nprovision\nof\nthis\nAgreement,\nexcept\nby\nwritten\ninstrument\nof\nthe\nparty\ncharged\nwith\nsuch\nwaiver\nor\nestoppel. No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such\nwaiver shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or\ncondition for the future, or as to any act other than that specifically waived.\nSECTION 8\nATTORNEYS' FEES\nIn the event of any proceeding occurring out of or involving this Agreement, the prevailing party shall be entitled to the\nrecovery of reasonable attorneys' fees, expenses, and costs, including fees and costs to enforce an award.\nSECTION 9\nSEVERABILITY\nThe invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement, which shall remain in foil force and effect.\nSECTION 10\nHEADINGS FOR REFERENCE ONLY\nThe headings of the Sections herein are included solely for convenience of reference and shall not control the meaning\nor the interpretation of any of the provisions of this Agreement.\nSECTION 11\nAPPLICABLE LAW\nThis Agreement shall be governed in all respects and be interpreted by and under the laws of the State of New York,\nand venue for any action hereunder shall lie in New York City, New York.\nSECTION 12\nNO CONTRACT OF EMPLOYMENT\nThis Agreement shall not, under any circumstances, be deemed to constitute an employment contract between Giant\nand Frank lemmiti. Nothing contained in this Agreement shall be deemed to give Frank lemmiti the right to be retained\nin the service of Giant, or to interfere with the right of Giant to discharge Frank lemmiti at any time.\nIN WITNESS WHEREOF, Giant and lemmiti have duly executed this Agreement this 26th day of April 2018.\n/s/ Anthony Iemmiti\nAnthony Iemmiti\n/s/ Frank Iemmiti\nFrank Iemmiti\nTHE GIANT BEVERAGE CO, INC.\n/s/ Fernando Oswaldo Leonzo\nFernando Oswaldo Leonzo\nChief Executive Officer	EX-10 .3 2 exhibit_10 -3.htm NON-COMPETITION/NON-SOLICITATION/NON-DISCLOSURE AGREEMENT\nNON-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE AGREEMENT (“Agreement”) is entered\ninto between Giant Beverage, Inc. (“Giant”), Anthony Iemmiti, and Frank Iemmiti on April 26, 2018 (the “Effective Date”).\nWHEREAS, Life on Earth, Inc. (the “Company”) has entered into and closed on a Purchase Agreement with Anthony\nIemmiti and Frank Iemmiti as the Sellers in connection with the sale of Giant to the Company for various consideration\n(the “Purchase Agreement”).\nWHEREAS, Anthony Iemmiti and Frank Iemmiti, were the two and sole owners of Giant prior to the Company’s\npurchase of Giant and have access to: (a) Giant’s trade secrets and other valuable confidential business information;\nand (ii) substantial relationships with Giant’s existing and prospective customers and clients.\nWHEREAS, Giant, Anthony Iemmiti and Frank Iemmiti desire to enter into this Agreement to memorialize the terms and\nconditions of this Agreement.\nNOW, THEREFORE, in consideration of the terms to the Purchase Agreement and addendums thereto, Iemmiti hereby\nagrees to the following.\nSECTION 1\nTERM OF AGREEMENT\nThis Agreement shall remain in effect for a period of 2 years after the Effective Date.\nSECTION 2\nAGREEMENT NOT TO COMPETE\nAnthony Iemmiti and Frank Iemmiti agree that during the term of this Agreement they shall not become employed,\ndirectly or indirectly, or form any business, whether as an independent contractor, consultant, or otherwise, with any\nsimilar business to Giant located in New York City, which includes the five New York City boroughs of Manhattan,\nBrooklyn, Queens, State Island and the Bronx, and Rockland, Westchester, Nassau and Suffolk counties.\nSECTION 3\nAGREEMENT NOT TO SOLICIT\nAnthony Iemmiti and Frank Iemmiti further agree that during the term of this Agreement, they shall not, directly or\nindirectly, solicit the business of any customer of Giant, regardless of whether they were responsible for generating such\ncustomer’s business for Giant. In addition, Anthony Iemmiti and Frank Iemmiti agree that during the term of this\nAgreement and this provision, they shall not directly or indirectly solicit the employment of any Giant employee.\nSECTION 4\nAGREEMENT NOT TO DISCLOSE\nDuring and after the term of this Agreement, Anthony Iemmiti and Frank Iemmiti shall use their best efforts and utmost\ndiligence to guard and protect all of the Giant’s trade secrets and any other confidential business information and shall\nnot, either during or after the term of this Agreement, for any reason, use in any capacity, or divulge or disclose in any\nmanner, to any person or entity, the identity of Giant’s customers, methods of operation, marketing or promotional\nmethods, processes, techniques, systems, formulas, programs, trade secrets, or other confidential information relating\nto Giant’s business. Upon termination of Iemmiti’s position as General Manager, for any reason, Frank Iemmiti shall\nimmediately return and deliver to Giant, all records and papers and all materials which bear trade secrets or other\nconfidential business information.\nSECTION 5\nREPRESENTATIONS AND ACKNOWLEDGMENTS OF ANTHONY IEMMITI AND FRANK IEMMITI\nAnthony Iemmiti and Frank Iemmiti hereby agree that the duration of the anti-competitive covenants set forth in Section\n2 of this Agreement are reasonable, and that their geographic scope is not unduly restrictive. Furthermore, Iemmiti\nacknowledges that Giant has a legitimate business interest in enforcing Section 2, 3 and 4 of this Agreement, because\nof Iemmiti’s access to valuable and confidential information about Giant, as well as confidential information about\nGiant’s existing and prospective customers.\nSECTION 6\nENFORCEMENT\nAnthony Iemmiti and Frank Iemmiti acknowledge and agree that money damages cannot fully compensate Giant in the\nevent of Iemmiti’s violation of the provisions of this Agreement, Thus, in the event of a breach of any of the provisions of\nthis Agreement, Anthony Iemmiti and Frank Iemmiti agree that Giant, upon application to a court of competent\njurisdiction, shall be entitled to an injunction restraining Iemmiti from any further breach of the terms or provisions of this\nAgreement and in such case Iemmiti’s sole remedy, in the event of the wrongful entry of such injunction, shall be the\ndissolution of such injunction. Iemmiti hereby waives any and all claims for damages by reason of the wrongful issuance\nof any such injunction.\nSECTION 7\nMODIFICATION AND WAIVER\nThis Agreement may not be modified or amended except as agreed to in writing by the parties hereto. No term or\ncondition of this Agreement shall be deemed to have been waived, nor shall there be any estoppel against the\nenforcement of any provision of this Agreement, except by written instrument of the party charged with such waiver or\nestoppel. No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such\nwaiver shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or\ncondition for the future, or as to any act other than that specifically waived.\nSECTION 8\nATTORNEYS’ FEES\nIn the event of any proceeding occurring out of or involving this Agreement, the prevailing party shall be entitled to the\nrecovery of reasonable attorneys’ fees, expenses, and costs, including fees and costs to enforce an award.\nSECTION 9\nSEVERABILITY\nThe invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement, which shall remain in foil force and effect.\nSECTION 10\nHEADINGS FOR REFERENCE ONLY\nThe headings of the Sections herein are included solely for convenience of reference and shall not control the meaning\nor the interpretation of any of the provisions of this Agreement.\nSECTION 11\nAPPLICABLE LAW\nThis Agreement shall be governed in all respects and be interpreted by and under the laws of the State of New York,\nand venue for any action hereunder shall lie in New York City, New York.\nSECTION 12\nNO CONTRACT OF EMPLOYMENT\nThis Agreement shall not, under any circumstances, be deemed to constitute an employment contract between Giant\nand Frank Iemmiti. Nothing contained in this Agreement shall be deemed to give Frank Iemmiti the right to be retained\nin the service of Giant, or to interfere with the right of Giant to discharge Frank Iemmiti at any time.\nIN WITNESS WHEREOF, Giant and Iemmiti have duly executed this Agreement this 26th day of April 2018.\n/s/ Anthony Iemmiti\nAnthony Iemmiti\n/s/ Frank Iemmiti\nFrank Iemmiti\nTHE GIANT BEVERAGE CO, INC.\n/s/ Fernando Oswaldo Leonzo\nFernando Oswaldo Leonzo\nChief Executive Officer
+abdb673749695a4cebaadb12ab1940e3.pdf	jurisdiction party	Exhibit B\nNon-Competition, Non-Solicitation and Confidential Information Agreement\nThis Non-Competition, Non-Solicitation and Confidential Information Agreement\n("Non-Competition and Confidentiality Agreement") is between Flagstar Bancorp, Inc., a Michigan\ncorporation (the “Company”), Flagstar Bank, FSB, a federally chartered savings bank and wholly-owned\nsubsidiary of the Company (the “Bank” and, together with the Company, “Flagstar”) and James Ciroli (the\n“Executive”), and is effective as of the time the Executive executes this Agreement.\nIn consideration of Executive’s employment with Flagstar, and the compensation and benefits to be\nprovided to Executive by Flagstar, Executive hereby acknowledges and agrees as follows:\n1. Confidential Information. "Confidential Information" is to be broadly interpreted and means (i)\nall non- public techniques/strategies and information that Flagstar has or Executive (in the course and scope of\nemployment with Flagstar) develops, compiles, acquires, or receives that has or may have commercial value or\nusefulness to Flagstar, to its clients or to their competitors in their respective businesses; (ii) all non-public\ninformation that, if disclosed without authorization, could be detrimental to the interest of Flagstar or its\nclients/customers, whether or not such information is identified as Confidential Information or otherwise\n“confidential” by Flagstar or its Clients; (iii) any consumer, customer, or employee information, including all\npersonally identifiable information of any consumer, customer, or employee in any format to which Executive\nmay have access during employment with Flagstar and (iv) all information belonging to third parties, such as\nvendors, that Flagstar is bound by contract or otherwise to keep confidential. Confidential Information includes\nnot only information disclosed by Flagstar (including its employees, agents, and independent contractors) or its\nclients to Executive, but also information developed or learned by Executive in the course and scope of\nemployment with Flagstar.\nBy example only and without limitation, “Confidential Information” includes all information on trade\nsecrets, inventions, innovations, processes, discoveries, improvements, research or development test results,\nspecifications, data, data compilations and analyses, know-how, formats, employee information, subscriber\ninformation, marketing plans, business plans, strategies, forecasts, unpublished financial information, budgets,\nprojections, and client, prospective client and supplier identities and contact information, characteristics and\nagreements, whether in print, in electronic files, or residing on non-public Internet sites. Flagstar is the sole\nowner of the Confidential Information or is authorized by a third party to use the Confidential Information for\nlimited purposes. Executive hereby irrevocably assigns to Flagstar all right, title, and interest Executive may\nhave or may acquire to all Confidential Information.\n2. Use of Confidential Information. At all times during Executive’s employment with Flagstar, and\nafter such employment ends (for any reason, voluntarily or involuntarily), Executive shall hold in trust, keep\nconfidential and shall not make any direct or indirect use or disclosure of any Confidential Information, to or\nfor Executive’s benefit or the benefit of any third\n16\nparty. In the event that Executive is not sure whether certain information is Confidential Information,\nExecutive shall err on the side of caution and treat such information as Confidential Information. It is\nExecutive’s responsibility to understand what is considered to be Confidential Information and to follow any\nspecific guidelines and procedures set forth by Flagstar to protect such Confidential Information. Executive\nshall not remove any Confidential Information from Flagstar’s premises or computer/electronic systems unless\nstrictly required by Executive’s job, in which case, Executive shall undertake diligent steps to insure that it\nremains confidential and that it is protected from loss, damage, theft and disclosure, and Executive shall\nimmediately return the Confidential Information (and any copies thereof) to Flagstar’s premises\ncomputer/electronic systems.\nConfidential Information shall not be deemed to include information that (i) becomes generally\navailable to the public through no fault of the Executive, (ii) is previously known by the Executive prior to his\nreceipt of such information from Flagstar, (iii) becomes available to the Executive on a non-confidential basis\nfrom a source which, to the Executive’s knowledge, is not prohibited from disclosing such information by\nlegal, contractual or fiduciary obligation to Flagstar, or (iv) is required to be disclosed in order to comply with\nany applicable law or court order.\n3. Protected Rights. Executive understands that this Agreement does not limit Executive’s ability to\ncommunicate with any Government Agencies or otherwise participate in any investigation or proceeding that\nmay be conducted by any Government Agency, including providing documents or other information, without\nnotice to Flagstar. Executive may disclose Confidential Information that qualifies as trade secrets in\nconfidence, either directly or indirectly, to a Federal, State, or local government official, or to an attorney,\nsolely for the purpose of reporting or investigating a suspected violation of law, or in a complaint or other\ndocument filed in a lawsuit or other proceeding, if such filing is made under seal.\n4. Non-Competition. At all times during Executive’s employment with Flagstar and for a period of\none (1) year after such employment ends (for any reason, voluntarily or involuntarily), Executive agrees that\nthe Executive shall not, on behalf of the Executive or for others, directly or indirectly (whether as employee,\nconsultant, investor, partner, sole proprietor or otherwise), be employed by, have an ownership interest in, or\nperform any services for a financial institution engaged in (or planning to become engaged in) the same lines of\nbusiness as Flagstar or its subsidiaries (“Business of Flagstar”) in any state of the United States where the\nFlagstar or its subsidiaries are doing business. The Parties agree that this provision shall not prohibit the\nownership by the Executive, solely as an investment, of securities of a person engaged in the Business of\nFlagstar if (i) the Executive is not an “affiliate” (as such term is defined in Rule 12b-2 of the regulations\npromulgated under the Exchange Act) of the issuer of such securities, (ii) such securities are publicly traded on\na national securities exchange and (iii) the Executive does not, directly or indirectly, beneficially own more\nthan two percent (2%) of the class of which such securities are a part.\n5. Non-Solicitation of Employees. At all times during Executive’s employment with Flagstar, and\nfor a period of one (1) year after such employment ends (for any reason, voluntarily or involuntarily),\nExecutive will not, directly or indirectly, on behalf of Executive or any other person or entity, hire, engage or\nsolicit to hire for employment or consulting (or other provision of\n17\nservices) any person who is actively employed (or in the six (6) months preceding the Executive’s termination\nof employment with Flagstar or its subsidiaries was actively employed) by Flagstar or its subsidiaries. This\nincludes, but is not limited to, inducing or attempting to induce, or influence or attempting to influence, any\nperson employed by Flagstar to terminate his or her employment with Flagstar or its subsidiaries. This\nparagraph does not prohibit an employee from independently locating and applying for any public job posting\nand actually being hired for such position as long as the Executive has not been directly or indirectly involved\nin the process in any way.\n6. Non-Solicitation of Customers. At all times during Executive’s employment with Flagstar, and\nfor a period of one (1) year after such employment ends (for any reason, voluntarily or involuntarily),\nExecutive will not, directly or indirectly, on behalf of the Executive or any entity/person engaged in (or\nplanning to become engaged in) the Business of Flagstar, solicit or accept the business of any entity in any\nstate of the United States where the Flagstar or its subsidiaries are doing business who is, or was in the past (1)\none year, a customer of Flagstar or its subsidiaries.\n7. Miscellaneous. In the event any term of this Non-Competition and Confidentiality Agreement\n(Exhibit B), is deemed unreasonable by a court (or arbitrator), Flagstar and Executive agree and request that the\ncourt (or arbitrator) reform the unreasonable terms or term to ensure the restrictive covenants are enforceable to\nthe maximum extent legally permissible under Michigan law. This Non-Competition and Confidentiality\nAgreement, in conjunction with the Agreement and Release Agreement (Exhibit A), constitute the full,\ncomplete and exclusive agreement between the Parties pertaining to the subject matters covered, and supersede\nall prior and contemporaneous understandings or agreements pertaining to the subject matters covered hereby.\nThis Non-Competition and Confidentiality Agreement is governed by the laws of the State of Michigan\nwithout regard it its conflict of law provisions and may not be amended or modified except with a writing that\nspecifically amends this Agreement and is signed by Executive and the Chief Executive Officer of Flagstar.\nFLAGSTAR BANK, FSB\nBy: _____________________________\nName: ___________________________\nTitle: ____________________________\nDate: ____________________________\nFLAGSTAR BANCORP, INC.\nBy: _____________________________\nName: ___________________________\nTitle: ____________________________\nDate: ____________________________\nEXECUTIVE\nSignature__________________________\nName (Printed):_____________________\nDate: ___________________________\n18	Exhibit B\nNon-C ompetition, Non-Solicitation and C onfidential Information Agreement\nThis Non-C ompetition, Non-Solicitation and Confidential Information Agreement\n("Non-Competition and Confidentiality Agreement") is between Flagstar Bancorp, Inc., a Michigan\ncorporation (the ”Company”), Flagstar Bank, FSB, a federally chartered savings bank and wholly-owned\nsubsidiary of the Company (the ”Bank" and, together with the Company, ”Flagstar”) and James Ciroli (the\n”Executive”), and is effective as of the time the Executive executes this Agreement.\nIn consideration of Executive’s employment with Flagstar, and the compensation and benefits to be\nprovided to Executive by Flagstar, Executive hereby acknowledges and agrees as follows:\n1. Confidential Information. "Confidential Information" is to be broadly interpreted and means (i)\nall non- public techniques/strategies and information that Flagstar has or Executive (in the course and scope of\nemployment with Flagstar) develops, compiles, acquires, or receives that has or may have commercial value or\nusefulness to Flagstar, to its clients or to their competitors in their respective businesses; (ii) all non-public\ninformation that, if disclosed without authorization, could be detrimental to the interest of Flagstar or its\nclients/customers, whether or not such information is identified as Confidential Information or otherwise\n”confidential” by Flagstar or its Clients; (iii) any consumer, customer, or employee information, including all\npersonally identifiable information of any consumer, customer, or employee in any format to which Executive\nmay have access during employment with Flagstar and (iv) all information belonging to third parties, such as\nvendors, that Flagstar is bound by contract or otherwise to keep confidential. Confidential Information includes\nnot only information disclosed by Flagstar (including its employees, agents, and independent contractors) or its\nclients to Executive, but also information developed or learned by Executive in the course and scope of\nemployment with Flagstar.\nBy example only and without limitation, ”Confidential Information” includes all information on trade\nsecrets, inventions, innovations, processes, discoveries, improvements, research or development test results,\nspecifications, data, data compilations and analyses, know-how, forrrrats, employee information, subscriber\ninformation, marketing plans, business plans, strategies, forecasts, unpublished financial information, budgets,\nprojections, and client, prospective client and supplier identities and contact information, characteristics and\nagreements, whether in print, in electronic files, or residing on non-public Internet sites. Flagstar is the sole\nowner of the Confidential Information or is authorized by a third party to use the Confidential Information for\nlimited purposes. Executive hereby irrevocably assigns to Flagstar all right, title, and interest Executive may\nhave or may acquire to all Confidential Information.\n2. Use of Confidential Information. At all times during Executive’s employment with Flagstar, and\nafter such employment ends (for any reason, voluntarily or involuntarily), Executive shall hold in trust, keep\nconfidential and shall not make any direct or indirect use or disclosure of any Confidential Information, to or\nfor Executive’s benefit or the benefit of any third\n16\nparty. In the event that Executive is not sure whether certain information is Confidential Information,\nExecutive shall err on the side of caution and treat such information as Confidential Information. It is\nExecutive’s responsibility to understand what is considered to be Confidential Information and to follow any\nspecific guidelines and procedures set forth by Flagstar to protect such Confidential Information. Executive\nshall not remove any Confidential Information from Flagstar s premises or computer/electronic systems unless\nstrictly required by Executive’s job, in which case, Executive shall undertake diligent steps to insure that it\nremains confidential and that it is protected from loss, damage, theft and disclosure, and Executive shall\nimmediately return the Confidential Information (and any copies thereof) to Flagstars premises\ncomputer/electronic systems.\nConfidential Information shall not be deemed to include information that (1) becomes generally\navailable to the public through no fault of the Executive, (ii) is previously known by the Executive prior to his\nreceipt of such information from Flagstar, (iii) becomes available to the Executive on a non-confidential basis\nfrom a source which, to the Executive's knowledge, is not prohibited from disclosing such information by\nlegal, contractual or fiduciary obligation to Flagstar, or (iv) is required to be disclosed in order to comply with\nany applicable law or court order.\n3. Protected Rights. Executive understands that this Agreement does not limit Executive's ability to\ncommunicate with any Government Agencies or otherwise participate in any investigation or proceeding that\nmay be conducted by any Government Agency, including providing documents or other information, without\nnotice to Flagstar. Executive may disclose Confidential Information that qualifies as trade secrets in\nconfidence, either directly or indirectly, to a Federal, State, or local government official, or to an attorney,\nsolely for the purpose of reporting or investigating a suspected violation of law, or in a complaint or other\ndocument filed in a lawsuit or other proceeding, if such filing is made under seal.\n4. Non-C ompetition. At all times during Executive’s employment with Flagstar and for a period of\none (1) year after such employment ends (for any reason, voluntarily or involuntarily), Executive agrees that\nthe Executive shall not, on behalf of the Executive or for others, directly or indirectly (whether as employee,\nconsultant, investor, partner, sole proprietor or otherwise), be employed by, have an ownership interest in, or\nperform any services for a financial institution engaged in (or planning to become engaged in) the same lines of\nbusiness as Flagstar or its subsidiaries (”Business of Flagstar”) in any state of the United States where the\nFlagstar or its subsidiaries are doing business. The Parties agree that this provision shall not prohibit the\nownership by the Executive, solely as an investment, of securities of a person engaged in the Business of\nFlagstar if (i) the Executive is not an ”affiliate" (as such term is defined in Rule 12b—2 of the regulations\npromulgated under the Exchange Act) of the issuer of such securities, (ii) such securities are publicly traded on\na national securities exchange and (iii) the Executive does not, directly or indirectly, beneficially own more\nthan two percent (2%) of the class of which such securities are a part.\n5. Non-Solicitation of Employees. At all times during Executive’s employment with Flagstar, and\nfor a period of one (1) year after such employment ends (for any reason, voluntarily or involuntarily),\nExecutive will not, directly or indirectly, on behalf of Executive or any other person or entity, hire, engage or\nsolicit to hire for employment or consulting (or other provision of\n17\nservices) any person who is actively employed (or in the six (6) months preceding the Executive’s termination\nof employment with Flagstar or its subsidiaries was actively employed) by Flagstar or its subsidiaries. This\nincludes, but is not limited to, inducing or attempting to induce, or influence or attempting to influence, any\nperson employed by Flagstar to terminate his or her employment with Flagstar or its subsidiaries. This\nparagraph does not prohibit an employee from independently locating and applying for any public job posting\nand actually being hired for such position as long as the Executive has not been directly or indirectly involved\nin the process in any way.\n6. Non-Solicitation of Customers. At all times during Executive’s employment with Flagstar, and\nfor a period of one (1) year after such employment ends (for any reason, voluntarily or involuntarily),\nExecutive will not, directly or indirectly, on behalf of the Executive or any entity/person engaged in (or\nplanning to become engaged in) the Business of Flagstar, solicit or accept the business of any entity in any\nstate of the United States where the Flagstar or its subsidiaries are doing business who is, or was in the past (1)\none year, a customer of Flagstar or its subsidiaries.\n7. Miscellaneous. In the event any term of this Non-Competition and Confidentiality Agreement\n(Exhibit B), is deemed unreasonable by a court (or arbitrator), Flagstar and Executive agree and request that the\ncourt (or arbitrator) reform the unreasonable terms or term to ensure the restrictive covenants are enforceable to\nthe maximum extent legally permissible under Michigan law. This Non-Competition and Confidentiality\nAgreement, in conjunction with the Agreement and Release Agreement (Exhibit A), constitute the full,\ncomplete and exclusive agreement between the Parties pertaining to the subject matters covered, and supersede\nall prior and contemporaneous understandings or agreements pertaining to the subject matters covered hereby.\nThis Non-Competition and Confidentiality Agreement is governed by the laws of the State of Michigan\nwithout regard it its conflict of law provisions and may not be amended or modified except with a writing that\nspecifically amends this Agreement and is signed by Executive and the Chief Executive Officer of Flagstar.\n \n \n \n \nFLAG STAR BANK, FSB FLAG STAR BANCORP, INC.\nBY: By:\nName: Name:\nTitle: Title:\n \n \nDate: Date:\n \n \nEXECUTIVE\nSignature\n \nDate:\nName (Printed):\n \n18\n	Exhibit B\non-Competition, Non-Solicitation and Confidential Information Agreement\nThis Non-Competition, Non-Solicitation and Confidential Information Agreement\n("Non-Competition and Confidentiality A greement") is between Flagstar Bancorp, Inc., a Michigan\ncorporation (the "Company"), Flagstar Bank, FSB, a federally chartered savings bank and wholly-owned\nsubsidiary of the Company (the "Bank" and, together with the Company, "Flagstar") and James Ciroli (the\n"Executive") and is effective as of the time the Executive executes this A greement.\nIn consideration of Executive's employment with Flagstar, and the compensation and benefits to be\nprovided to Executive by Flagstar, Executive hereby acknowledges and agrees as follows:\n1.\nConfidential Information. "Confidential Information" is to be broadly interpreted and means\n(i)\nall non- public techniques/strategies and information that Flagstar has or Executive (in the course and scope of\nemployment with Flagstar) develops, compiles, acquires, or receives that has or may have commercial value or\nusefulness to Flagstar, to its clients or to their competitors in their respective businesses; (ii) all non-public\ninformation that, if disclosed without authorization, could be detrimental to the interest of Flagstar or its\nclients/customers, whether or not such information is identified as Confidential Information or otherwise\n"confidential"\nby\nFlagstar\nor\nits\nClients;\n(iii)\nany\nconsumer,\ncustomer,\nor\nemployee\ninformation,\nincluding\nall\npersonally identifiable information of any consumer, customer, or employee in any format to which Executive\nmay have access during employment with Flagstar and (iv) all information belonging to third parties, such as\nvendors, that Flagstar is bound by contract or otherwise to keep confidential. Confidential Information includes\nnot only information disclosed by Flagstar (including its employees, agents, and independent contractors) or its\nclients to Executive, but also information developed or learned by Executive in the course and scope of\nemployment with Flagstar.\nBy example only and without limitation "Confidential Information" includes all information on trade\nsecrets, inventions, innovations, processes, discoveries, improvements, research or development test results,\nspecifications, data, data compilations and analyses, know-how, formats, employee information, subscriber\ninformation, marketing plans, business plans, strategies, forecasts, unpublished financial information, budgets,\nprojections, and client, prospective client and supplier identities and contact information, characteristics and\nagreements, whether in print, in electronic files, or residing on non-public Internet sites. Flagstar is the sole\nowner of the Confidential Information or is authorized by a third party to use the Confidential Information for\nlimited purposes. Executive hereby irrevocably assigns to Flagstar all right, title, and interest Executive may\nhave or may acquire to all Confidential Information.\n2. Use of Confidential Information. A all times during Executive's employment with Flagstar, and\nafter such employment ends (for any reason, voluntarily or involuntarily), Executive shall hold in trust, keep\nconfidential and shall not make any direct or indirect use or disclosure of any Confidential Information, to or\nfor Executive's benefit or the benefit of any third\n16\nparty. In the event that Executive is not sure whether certain information is Confidential Information,\nExecutive shall err on the side of caution and treat such information as Confidential Information. It is\nExecutive's responsibility to understand what is considered to be Confidential Information and to follow any\nspecific guidelines and procedures set forth by Flagstar to protect such Confidential Information. Executive\nshall not remove any Confidential Information from Flagstar's premises or computer/electronic systems unless\nstrictly\nrequired\nby\nExecutive's\njob,\nin\nwhich\ncase,\nExecutive\nshall\nundertake\ndiligent\nsteps\nto\ninsure\nthat\nit\nremains confidential and that it is protected from loss, damage, theft and disclosure, and Executive shall\nimmediately return the Confidential Information (and any copies thereof) to Flagstar's premises\ncomputer/electronic systems.\nConfidential Information shall not be deemed to include information that (i) becomes generally\navailable\nto\nthe\npublic\nthrough\nno\nfault\nof\nthe\nExecutive,\n(ii)\nis\npreviously\nknown\nby\nthe\nExecutive\nprior\nto\nhis\nreceipt of such information from Flagstar, (iii) becomes available to the Executive on a non-confidential basis\nfrom a source which, to the Executive's knowledge, is not prohibited from disclosing such information by\nlegal, contractual or fiduciary obligation to Flagstar, or (iv) is required to be disclosed in order to comply with\nany applicable law or court order.\n3. Protected Rights. Executive understands that this A greement does not limit Executive's ability to\ncommunicate with any Government gencies or otherwise participate in any investigation or proceeding that\nmay be conducted by any Government gency, including providing documents or other information, without\nnotice to Flagstar. Executive may disclose Confidential Information that qualifies as trade secrets in\nconfidence, either directly or indirectly, to a Federal, State, or local government official, or to an attorney,\nsolely for the purpose of reporting or investigating a suspected violation of law, or in a complaint or other\ndocument filed in a lawsuit or other proceeding, if such filing is made under seal.\n4.\non-Competition. At all times during Executive's employment with Flagstar and for a period of\none (1) year after such employment ends (for any reason, voluntarily or involuntarily), Executive agrees that\nthe Executive shall not, on behalf of the Executive or for others, directly or indirectly (whether as employee,\nconsultant, investor, partner, sole proprietor or otherwise), be employed by, have an ownership interest in, or\nperform any services for a financial institution engaged in (or planning to become engaged in) the same lines of\nbusiness as Flagstar or its subsidiaries ("Business of Flagstar") in any state of the United States where the\nFlagstar or its subsidiaries are doing business. The Parties agree that this provision shall not prohibit the\nownership by the Executive, solely as an investment, of securities of a person engaged in the Business of\nFlagstar if (i) the Executive is not an "affiliate" (as such term is defined in Rule 12b-2 of the regulations\npromulgated under the Exchange ct) of the issuer of such securities, (ii) such securities are publicly traded on\na national securities exchange and (iii) the Executive does not directly or indirectly, beneficially own more\nthan two percent (2%) of the class of which such securities are a part.\n5.\nNon-Solicitation of Employees. A all times during Executive's employment with Flagstar, and\nfor a period of one (1) year after such employment ends (for any reason, voluntarily or involuntarily),\nExecutive will not, directly or indirectly, on behalf of Executive or any other person or entity, hire, engage or\nsolicit to hire for employment or consulting (or other provision of\n17\nservices) any person who is actively employed (or in the six (6) months preceding the Executive's termination\nof employment with Flagstar or its subsidiaries was actively employed) by Flagstar or its subsidiaries. This\nincludes, but is not limited to, inducing or attempting to induce, or influence or attempting to influence, any\nperson employed by Flagstar to terminate his or her employment with Flagstar or its subsidiaries. This\nparagraph does not prohibit an employee from independently locating and applying for any public job posting\nand actually being hired for such position as long as the Executive has not been directly or indirectly involved\nin the process in any way.\n6. Non-Solicitation of Customers. A all times during Executive's employment with Flagstar, and\nfor a period of one (1) year after such employment ends (for any reason, voluntarily or involuntarily),\nExecutive will not, directly or indirectly, on behalf of the Executive or any entity/person engaged in (or\nplanning to become engaged in) the Business of Flagstar, solicit or accept the business of any\nentity\nin\nany\nstate of the United States where the Flagstar or its subsidiaries are doing business who is, or was in the past (1)\none year, a customer of Flagstar or its subsidiaries.\n7. Miscellaneous. In the event any term of this Non-Competition and Confidentiality A greement\n(Exhibit B), is deemed unreasonable by a court (or arbitrator), Flagstar and Executive agree and request that the\ncourt\n(or\narbitrator)\nreform\nthe\nunreasonable\nterms\nor\nterm\nto\nensure\nthe\nrestrictive\ncovenants\nare\nenforceable\nto\nthe maximum extent legally permissible under Michigan law. This Non-Competition and Confidentiality\nA greement in conjunction with the A greement and Release A greement (Exhibit A), constitute the full,\ncomplete and exclusive agreement between the Parties pertaining to the subject matters covered, and supersede\nall prior and contemporaneous understandings or agreements pertaining to the subject matters covered hereby.\nThis Non-Competition and Confidentiality A greement is governed by the laws of the State of Michigan\nwithout regard it its conflict of law provisions and may not be amended or modified except with a writing that\nspecifically amends this A greement and is signed by Executive and the Chief Executive Officer of Flagstar.\nFLAGSTAR BANK, FSB\nFLAGSTAR BANCORP, INC.\nBy:\nBy:\nName:\nName:\nTitle:\nTitle:\nDate:\nDate:\nEXECUTIVE\nSignature\nDate:\nName (Printed)\n18	Exhibit B\nNon-Competition, Non-Solicitation and Confidential Information Agreement\nThis Non-Competition, Non-Solicitation and Confidential Information Agreement\n("Non-Competition and Confidentiality Agreement") is between Flagstar Bancorp, Inc., a Michigan\ncorporation (the “Company”), Flagstar Bank, FSB, a federally chartered savings bank and wholly-owned\nsubsidiary of the Company (the “Bank” and, together with the Company, “Flagstar”) and James Ciroli (the\n“Executive”), and is effective as of the time the Executive executes this Agreement.\nIn consideration of Executive’s employment with Flagstar, and the compensation and benefits to be\nprovided to Executive by Flagstar, Executive hereby acknowledges and agrees as follows:\n1. Confidential Information. "Confidential Information" is to be broadly interpreted and means (i)\nall non- public techniques/strategies and information that Flagstar has or Executive (in the course and scope of\nemployment with Flagstar) develops, compiles, acquires, or receives that has or may have commercial value or\nusefulness to Flagstar, to its clients or to their competitors in their respective businesses; (ii) all non-public\ninformation that, if disclosed without authorization, could be detrimental to the interest of Flagstar or its\nclients/customers, whether or not such information is identified as Confidential Information or otherwise\n“confidential” by Flagstar or its Clients; (iii) any consumer, customer, or employee information, including all\npersonally identifiable information of any consumer, customer, or employee in any format to which Executive\nmay have access during employment with Flagstar and (iv) all information belonging to third parties, such as\nvendors, that Flagstar is bound by contract or otherwise to keep confidential. Confidential Information includes\nnot only information disclosed by Flagstar (including its employees, agents, and independent contractors) or its\nclients to Executive, but also information developed or learned by Executive in the course and scope of\nemployment with Flagstar.\nBy example only and without limitation, “Confidential Information” includes all information on trade\nsecrets, inventions, innovations, processes, discoveries, improvements, research or development test results,\nspecifications, data, data compilations and analyses, know-how, formats, employee information, subscriber\ninformation, marketing plans, business plans, strategies, forecasts, unpublished financial information, budgets,\nprojections, and client, prospective client and supplier identities and contact information, characteristics and\nagreements, whether in print, in electronic files, or residing on non-public Internet sites. Flagstar is the sole\nowner of the Confidential Information or is authorized by a third party to use the Confidential Information for\nlimited purposes. Executive hereby irrevocably assigns to Flagstar all right, title, and interest Executive may\nhave or may acquire to all Confidential Information.\n2. Use of Confidential Information. At all times during Executive’s employment with Flagstar, and\nafter such employment ends (for any reason, voluntarily or involuntarily), Executive shall hold in trust, keep\nconfidential and shall not make any direct or indirect use or disclosure of any Confidential Information, to or\nfor Executive’s benefit or the benefit of any third\n16\nparty. In the event that Executive is not sure whether certain information is Confidential Information,\nExecutive shall err on the side of caution and treat such information as Confidential Information. It is\nExecutive’s responsibility to understand what is considered to be Confidential Information and to follow any\nspecific guidelines and procedures set forth by Flagstar to protect such Confidential Information. Executive\nshall not remove any Confidential Information from Flagstar’s premises or computer/electronic systems unless\nstrictly required by Executive’s job, in which case, Executive shall undertake diligent steps to insure that it\nremains confidential and that it is protected from loss, damage, theft and disclosure, and Executive shall\nimmediately return the Confidential Information (and any copies thereof) to Flagstar’s premises\ncomputer/electronic systems.\nConfidential Information shall not be deemed to include information that (i) becomes generally\navailable to the public through no fault of the Executive, (ii) is previously known by the Executive prior to his\nreceipt of such information from Flagstar, (iii) becomes available to the Executive on a non-confidential basis\nfrom a source which, to the Executive’s knowledge, is not prohibited from disclosing such information by\nlegal, contractual or fiduciary obligation to Flagstar, or (iv) is required to be disclosed in order to comply with\nany applicable law or court order.\n3. Protected Rights. Executive understands that this Agreement does not limit Executive’s ability to\ncommunicate with any Government Agencies or otherwise participate in any investigation or proceeding that\nmay be conducted by any Government Agency, including providing documents or other information, without\nnotice to Flagstar. Executive may disclose Confidential Information that qualifies as trade secrets in\nconfidence, either directly or indirectly, to a Federal, State, or local government official, or to an attorney,\nsolely for the purpose of reporting or investigating a suspected violation of law, or in a complaint or other\ndocument filed in a lawsuit or other proceeding, if such filing is made under seal.\n4. Non-Competition. At all times during Executive’s employment with Flagstar and for a period of\none (1) year after such employment ends (for any reason, voluntarily or involuntarily), Executive agrees that\nthe Executive shall not, on behalf of the Executive or for others, directly or indirectly (whether as employee,\nconsultant, investor, partner, sole proprietor or otherwise), be employed by, have an ownership interest in, or\nperform any services for a financial institution engaged in (or planning to become engaged in) the same lines of\nbusiness as Flagstar or its subsidiaries (“Business of Flagstar”) in any state of the United States where the\nFlagstar or its subsidiaries are doing business. The Parties agree that this provision shall not prohibit the\nownership by the Executive, solely as an investment, of securities of a person engaged in the Business of\nFlagstar if (i) the Executive is not an “affiliate” (as such term is defined in Rule 12b-2 of the regulations\npromulgated under the Exchange Act) of the issuer of such securities, (ii) such securities are publicly traded on\na national securities exchange and (iii) the Executive does not, directly or indirectly, beneficially own more\nthan two percent (2%) of the class of which such securities are a part.\n5. Non-Solicitation of Employees. At all times during Executive’s employment with Flagstar, and\nfor a period of one (1) year after such employment ends (for any reason, voluntarily or involuntarily),\nExecutive will not, directly or indirectly, on behalf of Executive or any other person or entity, hire, engage or\nsolicit to hire for employment or consulting (or other provision of\n17\nservices) any person who is actively employed (or in the six (6) months preceding the Executive’s termination\nof employment with Flagstar or its subsidiaries was actively employed) by Flagstar or its subsidiaries. This\nincludes, but is not limited to, inducing or attempting to induce, or influence or attempting to influence, any\nperson employed by Flagstar to terminate his or her employment with Flagstar or its subsidiaries. This\nparagraph does not prohibit an employee from independently locating and applying for any public job posting\nand actually being hired for such position as long as the Executive has not been directly or indirectly involved\nin the process in any way.\n6. Non-Solicitation of Customers. At all times during Executive’s employment with Flagstar, and\nfor a period of one (1) year after such employment ends (for any reason, voluntarily or involuntarily),\nExecutive will not, directly or indirectly, on behalf of the Executive or any entity/person engaged in (or\nplanning to become engaged in) the Business of Flagstar, solicit or accept the business of any entity in any\nstate of the United States where the Flagstar or its subsidiaries are doing business who is, or was in the past (1)\none year, a customer of Flagstar or its subsidiaries.\n7. Miscellaneous. In the event any term of this Non-Competition and Confidentiality Agreement\n(Exhibit B), is deemed unreasonable by a court (or arbitrator), Flagstar and Executive agree and request that the\ncourt (or arbitrator) reform the unreasonable terms or term to ensure the restrictive covenants are enforceable to\nthe maximum extent legally permissible under Michigan law. This Non-Competition and Confidentiality\nAgreement, in conjunction with the Agreement and Release Agreement (Exhibit A), constitute the full,\ncomplete and exclusive agreement between the Parties pertaining to the subject matters covered, and supersede\nall prior and contemporaneous understandings or agreements pertaining to the subject matters covered hereby.\nThis Non-Competition and Confidentiality Agreement is governed by the laws of the State of Michigan\nwithout regard it its conflict of law provisions and may not be amended or modified except with a writing that\nspecifically amends this Agreement and is signed by Executive and the Chief Executive Officer of Flagstar.\nFLAGSTAR BANK, FSB\nBy: _____________________________\nName: ___________________________\nTitle: ____________________________\nDate: ____________________________\nFLAGSTAR BANCORP, INC.\nBy: _____________________________\nName: ___________________________\nTitle: ____________________________\nDate: ____________________________\nEXECUTIVE\nSignature__________________________\nName (Printed):_____________________\nDate: ___________________________\n18
+ac78301152c67fe15d50045143498982.pdf	effective_date jurisdiction party term	Michael Baker Corporation\nAirside Business Park\n100 Airside Drive\nMoon Township, PA 15108\nJanuary 31, 2013\nGladiator Holdco LLC\nc/o DC Capital Partners, LLC\n11 Canal Center Plaza, Suite 350\nAlexandria, VA 22314\nAttention:\nThomas J. Campbell\nChairman\nLadies & Gentlemen:\nGladiator Holdco LLC (together with its controlled affiliates, “Receiving Party”) has requested that Michael Baker\nCorporation, a Pennsylvania corporation (the “Company”), furnish Receiving Party information relating to the Company\n(such information, as more specifically defined in Paragraph 2 below, “Confidential Information”). In connection therewith,\nReceiving Party agrees to treat the Confidential Information in accordance with the provisions of this agreement and\ncomply with the other provisions hereof.\n1. Use of Confidential Information. Receiving Party will use the Confidential Information only in connection with\na possible transaction involving the Company (any such transaction, a “Transaction” and such purpose, the “Permitted\nPurpose”). For the avoidance of doubt, a “Transaction” will include any transaction between the Receiving Party and the\nCompany or its stockholders, whether or not done on a consensual basis, provided, however, that this sentence does not\nlimit or otherwise affect Paragraph 5 hereof. Receiving Party will treat the Confidential Information in all material respects\nin the same way that it treats its own non-public proprietary information, but in any case using no less than a reasonable\ndegree of care. Receiving Party will not disclose any Confidential Information publicly or to any third party, except that:\n(a)\nReceiving Party may disclose Confidential Information to its directors, officers, attorneys or\nfinancial advisors (collectively, “Representatives”) whom Receiving Party reasonably determines need to know\nthe information for the Permitted Purpose (it being understood that Receiving Party will inform its\nRepresentatives of the confidential nature of the Confidential Information and will cause its Representatives to\ntreat the Confidential Information in the same manner as Receiving Party is required to treat it under this\nagreement);\n(b) Confidential Information may be furnished to any bank or other debt financing source that\nagrees, in writing, for the benefit of the Company, (i) to maintain the confidentiality of the Confidential Information\nsubstantially to the same extent as provided in Paragraphs 1, 2, 3 and 4 hereof and (ii) that it has no agreement,\narrangement or understanding that would preclude it from providing financing to any party to a possible\nTransaction other than Receiving Party and its Affiliates; and\n(c) Confidential Information may be disclosed in accordance with Paragraph 3 hereof.\n2. Confidential Information. For purposes of this agreement, the term “Confidential Information” includes (a) all\ninformation concerning the Company (whether prepared by the Company or its agents or other representatives and\nirrespective of the form of communication and when such communication was made) that is or has been furnished to\nReceiving Party by or on behalf of the Company, (b) the possible terms of any Transaction, and (c) all notes, analyses,\nreports, compilations, studies, interpretations, summaries or other documents that are prepared by Receiving Party or\nany of its Representatives that contain, reflect or are based on, in whole or in part, any of the foregoing (“Derived\nConfidential Information”), provided, however, that the term “Confidential Information” does not include information that:\n(i) is or becomes generally available to the public other than as a result of the disclosure thereof by\nReceiving Party or any of its agents or other representatives or a breach of this agreement by Receiving Party or\nany of its agents or other representatives;\n(ii) was within Receiving Party’s possession before being furnished to Receiving Party by or on\nbehalf of the Company, provided that the source of the information was not bound by a confidentiality agreement\nwith, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with\nrespect to that information;\n(iii) is or becomes available to Receiving Party on a non-confidential basis from a source other than\nthe Company, provided that the source of the information was not bound by a confidentiality agreement with, or\nother contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to\nthat information; or\n(iv) is independently developed by Receiving Party without use of information disclosed by the\nCompany or otherwise violating Receiving Party’s obligations under this agreement.\n3. Requested or Required Disclosure. (a) If Receiving Party or any of its agents or other representatives is\nrequested or required by oral questions, interrogatories, requests for information or documents in a legal proceeding,\nsubpoena, civil investigative demand or other similar legal process to disclose any of the Confidential Information,\nReceiving Party will provide the Company prompt notice of the request or requirement so that the Company may seek a\nprotective order or other appropriate remedy or waive compliance with the provisions of this agreement. If, in the absence\nof a protective order or other similar remedy, Receiving Party or any of its agents or other representatives is required to\ndisclose Confidential Information in any response to any such request or requirement, Receiving Party or any of its\nagents or other representatives may, without liability under this agreement, disclose to such requesting person only that\nportion of the Confidential Information that is required to be disclosed so long as Receiving Party and each of its agents\nor other representatives use reasonable efforts to preserve the confidentiality of all other Confidential Information,\nincluding without limitation by cooperating with the Company to obtain an appropriate protective order or other reliable\nassurance that confidential treatment will be accorded the other Confidential Information by the requesting person.\n2\n(b) Nothing in this Agreement prohibits Receiving Party or its Representatives from disclosing Confidential\nInformation required by applicable federal or state securities laws to be disclosed in connection with any solicitation of\nproxies or any business combination, acquisition, merger, consolidation or other transaction relating to the Company or\nany of its affiliates, or in connection with preparing beneficial ownership reports required by Sections 13(d) or 13(g) of\nthe Securities Exchange Act of 1934, in each case so long as such transaction does not breach Paragraphs 4 or 5\nhereof.\n4. Securities Laws. Receiving Party hereby (a) acknowledges that it is aware (and that its agents or other\nrepresentatives who are apprised of the matters contemplated hereby have been or will be advised) that federal and\nstate laws prohibit persons with material non-public information about a company obtained directly or indirectly from that\ncompany from purchasing or selling securities of such company, or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person may purchase or sell such securities,\nand (b) agrees to not to purchase or offer to purchase any securities of the Company while in the possession of any such\ninformation.\n5. Covenants of Receiving Party. (a) As of the date of this agreement, except as previously disclosed to the\nCompany (including by virtue of a public filing), Receiving Party represents and warrants that it does not own beneficially\nor of record any securities entitled to be voted generally in the election of the other Company’s directors or any direct or\nindirect options or other rights to acquire or dispose of any such securities or any economic or voting interests associated\nwith, or the value of which is derived from, any such securities (“Voting Securities”).\n(b) Without limiting the generality or effect of any other provision hereof, Receiving Party agrees that for a period\nending March 31, 2014 (the “Assessment Period”), except within the terms of a specific written request from the\nCompany, neither Receiving Party nor any of its affiliates nor any of their respective representatives or agents acting as a\nprincipal of Receiving Party or such affiliates will propose or publicly announce or otherwise disclose an intent to propose,\nor enter into or agree to enter into, singly or with any other person:\n(i) any form of business combination, acquisition, merger, consolidation or other transaction relating to the\nCompany or any of its affiliates;\n(ii) any form of restructuring, recapitalization or similar transaction with respect to the Company or any of its\naffiliates;\n3\nnor except as aforesaid during the Standstill Period will Receiving Party or any of its agents or other representatives,\nacting as a principal of Receiving Party:\n(iii) acquire, or offer, propose or agree to acquire, by purchase or otherwise, record or beneficial ownership of\nany Voting Securities of the Company;\n(iv) make, or in any way participate in, any solicitation of proxies with respect to any Voting Securities\n(including by the execution of action by written consent of the Company), become a participant in any election\ncontest with respect to the Company, seek to influence any person with respect to any Voting Securities or\ndemand a copy of the Company’s list of stockholders or other books and records;\n(v) participate in or encourage the formation of any partnership, syndicate or other group that owns or seeks\nor offers to acquire beneficial ownership of any Voting Securities or that seeks to affect control of the Company\nor has the purpose of circumventing any provision of this agreement;\n(vi) otherwise act, alone or in concert with others (including by providing financing for another person), to seek\nor to offer to control or influence, in any manner, the Company’s management, Board of Directors or policies;\n(vii) request any waiver or amendment to any provision of this agreement; or\n(viii) make any proposal or other communication designed to, or which could reasonably be expected to,\ncompel the Company to make a public announcement thereof in respect of any matter referred to in this\nagreement.\n(c) In the event that, prior to March 31, 2014, the Company enters into a confidentiality agreement with any third\nparty in connection with possible discussions of a merger, consolidation, sale of stock or assets, tender offer or other\nbusiness combination transaction involving the possible acquisition by such third party of control of, or a sale of all or\nsubstantially all of the assets of, the Company, which agreement provides for a standstill period that ends before March\n31, 2014 or is on terms that are substantially more favorable to the third party than the terms of Paragraph 5(b) hereof, (i)\nthe terms of Paragraph 5(b) hereof will be deemed, without further action, to have been automatically amended so as to\ninclude such shorter standstill period or more favorable terms and (ii) the Company will notify the Receiving Party thereof\nand, if requested, the parties will agree to amendments hereto to reflect such changes. For the avoidance of doubt, a\ndefinitive agreement providing for a transaction of a type referred to in Paragraph 5(b) will not trigger the protections\nprovided in this Paragraph 5(c).\n(d) Receiving Party agrees to vote or cause to be voted its shares of common stock of the Company beneficially\nowned by it or any of its affiliates in respect of the election of directors at the Company’s 2013 annual meeting of\nshareholders (i) in the same proportion as all other shares of common stock are voted by other shareholders or (ii) at\nReceiving Party’s election, as recommended by the Company’s Board of Directors.\n4\n(e) Notwithstanding anything to the contrary set forth in the foregoing provisions of this Paragraph 5, neither\nReceiving Party nor any of its applicable affiliates will be precluded from voting the shares of common stock of the\nCompany beneficially owned by it in opposition to any transaction involving the sale or acquisition of all or a controlling\nportion of the Company’s equity securities or all or substantially all of the Company’s assets (whether by merger,\nconsolidation, business combination, tender or exchange offer, recapitalization, restructuring, sale, equity issuance or\notherwise).\n6. Termination of Discussions. The Company will not be under any contractual or legal obligation of any kind\nwhatsoever to furnish Confidential Information to Receiving Party and reserves the right, in its sole discretion, to\nterminate providing Confidential Information at any time. In that case, on the request of the Company for any or no\nreason, Receiving Party will, and will cause its Representatives to, promptly deliver to the Company or destroy all\nConfidential Information, including all Derived Confidential Information (and all copies thereof and extracts therefrom),\nprovided that (i) neither the Receiving Party nor any of its Representatives will be required to destroy any electronic copy\nof any Confidential Information that is created pursuant to such person’s standard electronic backup and archival\nprocedures if (x) personnel whose functions are not primarily information technology in nature do not have access to\nsuch retained copies and (y) personnel whose functions are primarily information technology in nature have access to\nsuch copies only as reasonably necessary for the performance of their information technology duties (e.g., for purposes\nof system recovery), and (ii) the Receiving Party and its Representatives may each retain (A) one copy of any\nConfidential Information to the extent required to defend or maintain any litigation relating to this Agreement or the\nConfidential Information, or established document retention policies and (B) such copies of the Confidential Information to\nthe extent required to comply with requirements of applicable law. Compliance with the preceding sentence will be\ncertified in writing by an authorized officer of Receiving Party within five calendar days of the delivery of the notice.\nNotwithstanding the return or destruction of the Confidential Information, each party will continue to be bound by its\nobligations of confidentiality and other obligations under this agreement.\n7. Coordination of Contacts. Prior to March 31, 2014, Receiving Party will not, and will cause its agents and\nother representatives not to, except within the terms of a specific written request from the Company or any of the\nCompany’s authorized representatives, initiate contact with any director, officer, employee or person known to Receiving\nParty to be a securityholder, partner, joint venturer or contracting party of the Company in connection with any matter\nreferred to in this agreement. The parties agree that all (a) communications regarding the matters herein contemplated,\n(b) requests for information, and (c) discussions or questions regarding procedures with respect to the matters herein\ncontemplated, will be first submitted or directed to the individual specified on the signature page to this agreement.\n8. No Warranty of Accuracy. Receiving Party acknowledges that neither the Company nor any of its agents or\nrepresentatives makes any representation or warranty as to the accuracy or completeness of any the Confidential\nInformation furnished to Receiving Party. Neither the Company nor any of its agents or other representatives will have\nany liability to Receiving Party or its agents or other representatives resulting from the use of the Confidential Information.\n5\n9. Miscellaneous. No failure or delay by any party in exercising any right, power or privilege under this\nagreement will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further\nexercise of any right, power or privilege under this agreement. No provision of this agreement may be waived, amended\nor assigned except, as to any waiver or amendment, with the written consent of each party in its sole discretion, which\nconsent specifically refers to the provision waived or amended. If any provision of this agreement is deemed to be invalid,\nillegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this agreement will not in\nany way be affected or impaired thereby. This agreement represents the entire understanding of the parties with respect\nto the matters referred to in this letter agreement and supersedes all prior or contemporaneous understandings, written or\noral, between the parties with respect to such matters.\n10. Governing Law. This agreement is governed by, and will be construed in accordance with, the internal laws\nof the State of Pennsylvania, without giving effect to the principles of conflict of laws thereof. Each party submits to the\nexclusive jurisdiction of the federal or state courts in Pittsburgh, Pennsylvania (the “Selected Court”) in respect of any\naction or proceeding arising out of this agreement, agrees that venue for any action on this agreement will be properly\nlaid in the Selected Court and waives any objection to the bringing of any action or proceeding in the venue.\n11. Injunctive Relief. Each party acknowledges and agrees that money damages would not be a sufficient\nremedy for any breach of this agreement by another party or any of its affiliates, agents or other representatives and that\nthe non-breaching party will be entitled to equitable relief, including injunction and specific performance, as a remedy for\nany breach (and the party will not raise the defense of an adequate remedy at law) without the party of a bond or other\nform of assurance or surety. Such remedies will be in addition to all other remedies available at law or equity.\n12. Counterparts. This agreement may be executed in two or more counterparts, each of which will be deemed\nan original, but all of which together will constitute one and the same instrument.\n13. Termination. This agreement will terminate without further action two years after the date first above written.\nThe termination will not, however, affect the liability of any party for any prior breach of any provision hereof.\n14. Certain Definitions. In addition to the terms defined elsewhere herein, for purposes of this agreement, (a) the\nterm “affiliate” has the meaning set forth in Rule 12b-2 promulgated by the Securities and Exchange Commission under\nthe Securities Exchange Act of 1934 and (b) the term “person” means any individual or legal entity.\n[SIGNATURE PAGE FOLLOWS]\n6\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the\nundersigned, whereupon this agreement will become a binding agreement among the parties.\nVery truly yours,\nMichael Baker Corporation\nBy: /s/ H. James McKnight\nName: H. James McKnight\nTitle: Executive VP & CLO\nContact person for Paragraph 7:\nName: H. James McKnight\nTitle: Executive VP & CLO\nEmail: jmcknight@mbakercorp.com\nAccepted and agreed as of the date first written above:\nGladiator Holdco LLC\nBy: /s/ Thomas J. Campbell\nName: Thomas J. Campbell\nTitle: Chairman\nContact person for Paragraph 7:\nName:Thomas J. Campbell\nTitle:Chairman\nEmail:\ntcampbell@dccapitalpartners.com\n7	Michael Baker Corporation\nAirside Business Park\n100 Airside Drive\nMoon Township, PA 15108\nJanuary 31, 2013\nGladiator Holdco LLC\nc/o DC Capital Partners, LLC\n11 Canal Center Plaza, Suite 350\nAlexandria, VA 22314\nA ttention: Thomas]. Campbell\nChairman\nLadies & Gentlemen:\nGladiator Holdco LLC (together with its controlled affiliates, “Receiving Par_ty”) has requested that Michael Baker\nCorporation, a Pennsylvania corporation (the “Company”), furnish Receiving Party information relating to the Company\n(such information, as more specifically defined in Paragraph 2 below, “Confidential Information”). In connection therewith,\nReceiving Party agrees to treat the Confidential Information in accordance with the provisions of this agreement and\ncomply with the other provisions hereof.\n1. Use of Confidential Information. Receiving Party will use the Confidential Information only in connection with\na possible transaction involving the Company (any such transaction, a 'Transaction”and such purpose, the “Permitted\nPurpose”). Forthe avoidance ofdoubt, a ’Transaction”wi|| include any transaction between the Receiving Party and the\nCompany or its stockholders, whether or notdone on a consensual basis, provided, however, thatthis sentence does not\nlimit or otherwise affect Paragraph 5 hereof. Receiving Party will treat the Confidential Information in all material respects\nin the same way that it treats its own non-public proprietary information, but in any case using no less than a reasonable\ndegree of care. Receiving Party will not disclose any Confidential Information publicly orto any third party, except that:\n(a) Receiving Party may disclose Confidential Information to its directors, officers, attorneys or\nfinancial advisors (collectively, “Representatives”) whom Receiving Party reasonably determines need to know\nthe information forthe Permitted Purpose (it being understood that Receiving Party will inform its\nRepresentatives of the confidential nature of the Confidential Information and will cause its Representatives to\ntreatthe Confidential Information in the same manner as Receiving Party is required to treat it underthis\nagreement);\n(b) Confidential Information may be furnished to any bank or other debt financing source that\nagrees, in writing, forthe benefit of the Company, (i) to maintain the confidentiality of the Confidential Information\nsubstantially to the same extent as provided in Paragraphs 1, 2, 3 and 4 hereofand (ii) that it has no agreement,\narrangement or understanding that would preclude it from providing financing to any party to a possible\nTransaction other than Receiving Party and its Affiliates; and\n(c) Confidential Information may be disclosed in accordance with Paragraph 3 hereof.\n2. Confidential Information. For purposes of this agreement, the term “Confidential Information” includes (a) all\ninformation concerning the Company (whether prepared by the Company or its agents or other representatives and\nirrespective ofthe form of communication and when such communication was made) that is or has been furnished to\nReceiving Party by or on behalf of the Company, (b) the possible terms ofany Transaction, and (c) all notes, analyses,\nreports, compilations, studies, interpretations, summaries or other documents that are prepared by Receiving Party or\nany of its Representatives that contain, reflect or are based on, in whole or in part, any of the foregoing (“Derived\nConfidential Information”), provided, however, that the term “Confidential Information” does not include information that:\n(i) is or becomes generally available to the public other than as a result of the disclosure thereof by\nReceiving Party or any of its agents or other representatives or a breach of this agreement by Receiving Party or\nany of its agents or other representatives;\n(ii) was within Receiving Party's possession before being furnished to Receiving Party by or on\nbehalf of the Company, provided that the source of the information was not bound by a confidentiality agreement\nwith, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with\nrespect to that information;\n(iii) is or becomes available to Receiving Party on a non-confidential basis from a source otherthan\nthe Company, provided that the source of the information was not bound by a confidentiality agreement with, or\nother contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to\nthat information; or\n(iv) is independently developed by Receiving Party without use of information disclosed by the\nCompany or otherwise violating Receiving Party's obligations under this agreement.\n3. Reguested or Reguired Disclosure. (a) If Receiving Party or any of its agents or other representatives is\nrequested or required by oral questions, interrogatories, requests for information or documents in a legal proceeding,\nsubpoena, civil investigative demand or other similar legal process to disclose any of the Confidential Information,\nReceiving Party will provide the Company prompt notice of the request or requirement so that the Company may seek a\nprotective order or other appropriate remedy or waive compliance with the provisions of this agreement. If, in the absence\nof a protective order or other similar remedy, Receiving Party or any of its agents or other representatives is required to\ndisclose Confidential Information in any response to any such request or requirement, Receiving Party or any of its\nagents or other representatives may, without liability underthis agreement, disclose to such requesting person only that\nportion of the Confidential Information that is required to be disclosed so long as Receiving Party and each of its agents\nor other representatives use reasonable efforts to preserve the confidentiality of all other Confidential Information,\nincluding without limitation by cooperating with the Company to obtain an appropriate protective order or other reliable\nassurance that confidential treatment will be accorded the other Confidential Information by the requesting person.\n(b) Nothing in this Agreement prohibits Receiving Party or its Representatives from disclosing Confidential\nInformation required by applicable federal or state securities laws to be disclosed in connection with any solicitation of\nproxies or any business combination, acquisition, merger, consolidation or other transaction relating to the Company or\nany of its affiliates, or in connection with preparing beneficial ownership reports required by Sections 13(d) or 13(g) of\nthe Securities Exchange Actof 1934, in each case so long as such transaction does not breach Paragraphs 4 or 5\nhereof.\n4. Securities Laws. Receiving Party hereby (a) acknowledges that it is aware (and that its agents or other\nrepresentatives who are apprised ofthe matters contemplated hereby have been or will be advised) that federal and\nstate laws prohibit persons with material non-public information about a company obtained directly or indirectly from that\ncompany from purchasing or selling securities ofsuch company, orfrom communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person may purchase or sell such securities,\nand (b) agrees to not to purchase or offerto purchase any securities of the Company while in the possession of any such\ninformation.\n5. Covenants of Receiving Par_ty. (a) As of the date of this agreement, exceptas previously disclosed to the\nCompany (including by virtue ofa public filing), Receiving Party represents and warrants that itdoes not own beneficially\nor of record any securities entitled to be voted generally in the election of the other Company's directors or any direct or\nindirect options or other rights to acquire or dispose of any such securities or any economic or voting interests associated\nwith, or the value of which is derived from, any such securities ("Voting Securities”).\n(b) Without limiting the generality or effect of any other provision hereof, Receiving Party agrees that for a period\nending March 31, 2014 (the “Assessment Period”), except within the terms of a specific written request from the\nCompany, neither Receiving Party nor any of its affiliates nor any of their respective representatives or agents acting as a\nprincipal of Receiving Party or such affiliates will propose or publicly announce or otherwise disclose an intent to propose,\nor enter into or agree to enter into, singly or with any other person:\n(i) any form of business combination, acquisition, merger, consolidation or othertransaction relating to the\nCompany or any of its affiliates;\n(ii) any form of restructuring, recapitalization or similartransaction with respect to the Company or any of its\naffiliates;\nnor except as aforesaid during the Standstill Period will Receiving Party or any of its agents or other representatives,\nacting as a principal of Receiving Party:\n(iii) acquire, or offer, propose or agree to acquire, by purchase or otherwise, record or beneficial ownership of\nany Voting Securities of the Company;\n(iv) make, or in any way participate in, any solicitation of proxies with respect to any Voting Securities\n(including by the execution of action by written consent of the Company), become a participant in any election\ncontest with respect to the Company, seek to influence any person with respect to any Voting Securities or\ndemand a copy of the Company's list of stockholders or other books and records;\n(v) participate in or encourage the formation of any partnership, syndicate or other group that owns or seeks\nor offers to acquire beneficial ownership of any Voting Securities or that seeks to affect control of the Company\nor has the purpose of circumventing any provision of this agreement;\n(vi) otherwise act, alone or in concert with others (including by providing financing for another person), to seek\norto offer to control or influence, in any manner, the Company's management, Board of Directors or policies;\n(vii) request any waiver or amendment to any provision of this agreement; or\n(viii) make any proposal or other communication designed to, or which could reasonably be expected to,\ncompel the Company to make a public announcement thereof in respect of any matter referred to in this\nagreement.\n(c) In the event that, priorto March 31, 2014, the Company enters into a confidentiality agreement with any third\nparty in connection with possible discussions of a merger, consolidation, sale of stock or assets, tender offer or other\nbusiness combination transaction involving the possible acquisition by such third party of control of, or a sale of all or\nsubstantially all of the assets of, the Company, which agreement provides for a standstill period that ends before March\n31,2014 or is on terms that are substantially more favorable to the third party than the terms of Paragraph 5(b) hereof, (i)\nthe terms of Paragraph 5(b) hereof will be deemed, withoutfurther action, to have been automatically amended so as to\ninclude such shorter standstill period or more favorable terms and (ii) the Company will notify the Receiving Party thereof\nand, if requested, the parties will agree to amendments hereto to reflectsuch changes. Forthe avoidance ofdoubt, a\ndefinitive agreement providing for a transaction of a type referred to in Paragraph 5(b) will not triggerthe protections\nprovided in this Paragraph 5(c).\n(d) Receiving Party agrees to vote or cause to be voted its shares of common stock of the Company beneficially\nowned by it or any of its affiliates in respect of the election of directors atthe Company's 2013 annual meeting of\nshareholders (i) in the same proportion as all other shares of common stock are voted by other shareholders or (ii) at\nReceiving Party's election, as recommended by the Company's Board of Directors.\n(e) Notwithstanding anything to the contrary set forth in the foregoing provisions of this Paragraph 5, neither\nReceiving Party nor any of its applicable affiliates will be precluded from voting the shares of common stock of the\nCompany beneficially owned by it in opposition to any transaction involving the sale or acquisition of all or a controlling\nportion of the Company's equity securities or all or substantially all ofthe Company's assets (whether by merger,\nconsolidation, business combination, tender or exchange offer, recapitalization, restructuring, sale, equity issuance or\notherwise).\n6. Termination of Discussions. The Company will not be under any contractual or legal obligation of any kind\nwhatsoeverto furnish Confidential Information to Receiving Party and reserves the right, in its sole discretion, to\nterminate providing Confidential Information at any time. In that case, on the request of the Company for any or no\nreason, Receiving Party will, and will cause its Representatives to, promptly deliverto the Company or destroy all\nConfidential Information, including all Derived Confidential Information (and all copies thereof and extracts therefrom),\nprovided that (i) neither the Receiving Party nor any of its Representatives will be required to destroy any electronic copy\nof any Confidential Information that is created pursuant to such person's standard electronic backup and archival\nprocedures if (x) personnel whose functions are not primarily information technology in nature do not have access to\nsuch retained copies and (y) personnel whose functions are primarily information technology in nature have access to\nsuch copies only as reasonably necessary forthe performance of their information technology duties (e.g., for purposes\nofsystem recovery), and (ii) the Receiving Party and its Representatives may each retain (A) one copy ofany\nConfidential Information to the extent required to defend or maintain any litigation relating to this Agreement or the\nConfidential Information, or established document retention policies and (B) such copies of the Confidential Information to\nthe extent required to comply with requirements of applicable law. Compliance with the preceding sentence will be\ncertified in writing by an authorized officer of Receiving Party within five calendar days of the delivery of the notice.\nNotwithstanding the return or destruction of the Confidential Information, each party will continue to be bound by its\nobligations of confidentiality and other obligations underthis agreement.\n7. Coordination ofContacts. Priorto March 31, 2014, Receiving Party will not, and will cause its agents and\nother representatives not to, except within the terms of a specific written request from the Company or any of the\nCompany's authorized representatives, initiate contact with any director, officer, employee or person known to Receiving\nParty to be a securityholder, partner, joint venturer or contracting party of the Company in connection with any matter\nreferred to in this agreement. The parties agree that all (a) communications regarding the matters herein contemplated,\n(b) requests for information, and (c) discussions or questions regarding procedures with respectto the matters herein\ncontemplated, will be first submitted or directed to the individual specified on the signature page to this agreement.\n8. No Warranty of Accuracy. Receiving Party acknowledges that neitherthe Company nor any of its agents or\nrepresentatives makes any representation or warranty as to the accuracy or completeness of any the Confidential\nInformation furnished to Receiving Party. Neither the Company nor any of its agents or other representatives will have\nany liability to Receiving Party or its agents or other representatives resulting from the use of the Confidential Information.\n9. Miscellaneous. No failure or delay by any party in exercising any right, power or privilege underthis\nagreement will operate as a waiverthereof, nor will any single or partial exercise thereof preclude any other orfurther\nexercise of any right, power or privilege underthis agreement. No provision of this agreement may be waived, amended\nor assigned except, as to any waiver or amendment, with the written consent of each party in its sole discretion, which\nconsent specifically refers to the provision waived or amended. If any provision of this agreement is deemed to be invalid,\nillegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this agreement will not in\nany way be affected or impaired thereby. This agreement represents the entire understanding ofthe parties with respect\nto the matters referred to in this letter agreementand supersedes all prior or contemporaneous understandings, written or\noral, between the parties with respectto such matters.\n10. Governing Law. This agreement is governed by, and will be construed in accordance with, the internal laws\nof the State of Pennsylvania, without giving effect to the principles of conflict of laws thereof. Each party submits to the\nexclusive jurisdiction of the federal or state courts in Pittsburgh, Pennsylvania (the “Selected Court”) in respectofany\naction or proceeding arising out of this agreement, agrees thatvenue for any action on this agreement will be properly\nlaid in the Selected Court and waives any objection to the bringing of any action or proceeding in the venue.\n11. Injunctive Relief. Each party acknowledges and agrees that money damages would not be a sufficient\nremedy for any breach of this agreement by another party or any of its affiliates, agents or other representatives and that\nthe non-breaching party will be entitled to equitable relief, including injunction and specific performance, as a remedy for\nany breach (and the party will not raise the defense of an adequate remedy at law) withoutthe party of a bond or other\nform ofassurance or surety. Such remedies will be in addition to all other remedies available at law or equity.\n12. Counterparts. This agreement may be executed in two or more counterparts, each of which will be deemed\nan original, but all of which together will constitute one and the same instrument.\n13. Termination. This agreement will terminate without further action two years after the date first above written.\nThe termination will not, however, affect the liability of any party for any prior breach of any provision hereof.\n14. Certain Definitions. In addition to the terms defined elsewhere herein, for purposes of this agreement, (a) the\nterm “affiliate” has the meaning setforth in Rule 12b-2 promulgated by the Securities and Exchange Commission under\nthe Securities Exchange Act of 1934 and (b) the term “person” means any individual or legal entity.\n[SIGNATURE PAGE FOLLOWS]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the\nundersigned, whereupon this agreementwill become a binding agreementamong the parties.\nVery truly yours,\nMichael Baker Corporation\nBy: /s/ H. James McKnight\name: . ames c nig\nTitle: ExecufiveVPZSECEU\nContact person for Paragraph 7:\nName: H. James McKnight\nTitle: Execufive V F’ 82 (ZEU —\nEmail: W\nAccepted and agreed as of the date first written above:\nGladiator Holdco LLC\nBy: /s/ ThomasJ. Campbell\name: omas . amp e\nTitle: Chairman\nContact person for Paragraph 7:\nNmnThomas J. Campbell\nTitletw\nE l:\nmalltcampbell@ dccapitalpartnerscom	Michael Baker Corporation\nAirside Business Park\n100 Airside Drive\nMoon Township, PA 15108\nJ anuary 31, 2013\nGladiator Holdco LLC\nc/o DC Capital Partners, LLC\n11 Canal Center Plaza, Suite 350\nAlexandria, VA 22314\nAttention:\nThomas J. Campbell\nChairman\nLadies & Gentlemen:\nGladiator Holdco LLC (together with its controlled affiliates, "Receiving Party") has requested that Michael Baker\nCorporation, a Pennsylvania corporation (the "Company"), furnish Receiving arty information relating to the Company\n(such information, as more specifically defined in Paragraph 2 below, "Confidential Information"). In connection therewith,\nReceiving arty agrees to treat the Confidentia Information in accordance with the provisions of this agreement and\ncomply with the other provisions hereof.\n1. Use of Confidentia Information. Receiving Party will use the Confidentia Information only in connection with\na possible transaction involving the Company (any such transaction, a "Transaction" and such purpose, the "Permitted\nPurpose"). For the avoidance of doubt, a "Transaction" will include any transaction between the Receiving Party and the\nCompany or its stockholders, whether or not done on a consensual basis, provided, however, that this sentence does not\nlimit or otherwise affect aragraph 5 hereof. Receiving arty will treat the Confidentia Information in all material respects\nin the same way that it treats its own non-public proprietary information, but in any case using no less than a reasonable\ndegree of care. Receiving Party will not disclose any Confidential Information publicly or to any third party, except that:\n(a)\nReceiving Party may disclose Confidential Information to its directors, officers, attorneys or\nfinancial advisors (collectively, "Representatives") whom Receiving arty reasonably determines need to know\nthe information for the Permitted Purpose (it being understood that Receiving Party will inform its\nRepresentatives of the confidential nature of the Confidential Information and will cause its Representatives to\ntreat the Confidential Information in the same manner as Receiving Party is required to treat it under this\nagreement);\n(b)\nConfidential Information may be furnished to any bank or other debt financing source that\nagrees, in writing, for the benefit of the Company, (i) to maintain the confidentiality of the Confidentia Information\nsubstantially to the same extent as provided in Paragraphs 1, 2, 3 and 4 hereof and (ii) that it has no agreement,\narrangement or understanding that would preclude it from providing financing to any party to a possible\nTransaction other than Receiving arty and its Affiliates; and\n(c)\nConfidential Information may be disclosed in accordance with Paragraph 3 hereof.\n2. Confidentia Information. For purposes of this agreement, the term "Confidential Information" includes (a) all\ninformation concerning the Company (whether prepared by the Company or its agents or other representatives and\nirrespective of the form of communication and when such communication was made) that is or has been furnished to\nReceiving arty by or on behalf of the Company, (b) the possible terms of any Transaction, and (c) all notes, analyses,\nreports, compilations, studies, interpretations, summaries or other documents that are prepared by Receiving Party or\nany of its Representatives that contain, reflect or are based on, in whole or in part, any of the foregoing ("Derived\nConfidential Information") provided, however, that the term "Confidential Information" does not include information that:\n(i)\nis or becomes generally available to the public other than as a result of the disclosure thereof by\nReceiving Party or any of its agents or other representatives or a breach of this agreement by Receiving arty or\nany of its agents or other representatives;\n(ii)\nwas within Receiving Party's possession before being furnished to Receiving arty by or on\nbehalf of the Company, provided that the source of the information was not bound by a confidentiality agreement\nwith, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with\nrespect to that information;\n(iii) is or becomes available to Receiving Party on a non-confidential basis from a source other than\nthe Company, provided that the source of the information was not bound by a confidentiality agreement with, or\nother contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to\nthat information; or\n(iv) is independently developed by Receiving Party without use of information disclosed by the\nCompany or otherwise violating Receiving Party's obligations under this agreement\n3.\nRequested or Required Disclosure. (a) If Receiving Party or any of its agents or other representatives is\nrequested or required by oral questions, interrogatories, requests for information or documents in a legal proceeding,\nsubpoena, civil investigative demand or other similar legal process to disclose any of the Confidential Information,\nReceiving arty will provide the Company prompt notice of the request or requirement so that the Company may seek a\nprotective order or other appropriate remedy or waive compliance with the provisions of this agreement. If, in the absence\nof a protective order or other similar remedy, Receiving Party or any of its agents or other representatives is required to\ndisclose Confidential Information in any response to any such request or requirement, eceiving Party or any of its\nagents or other representatives may, without liability under this agreement, disclose to such requesting person only that\nportion of the Confidentia Information that is required to be disclosed so long as Receiving Party and each of its agents\nor other representatives use reasonable efforts to preserve the confidentiality of all other Confidential Information,\nincluding without limitation by cooperating with the Company to obtain an appropriate protective order or other reliable\nassurance that confidential treatment will be accorded the other Confidential Information by the requesting person.\n2\n(b) Nothing in this Agreement prohibits Receiving arty or its Representatives from disclosing Confidential\nInformation required by applicable federal or state securities laws to be disclosed in connection with any solicitation of\nproxies or any business combination, acquisition, merger, consolidation or other transaction relating to the Company or\nany of its affiliates, or in connection with preparing beneficial ownership reports required by Sections 13(d) or 13(g) of\nthe Securities E xchange Act of 1934, in each case so long as such transaction does not breach Paragraphs 4 or 5\nhereof.\n4. Securities Laws. Receiving Party hereby (a) acknowledges that it is aware (and that its agents or other\nrepresentatives who are apprised of the matters contemplated hereby have been or will be advised) that federal and\nstate laws prohibit persons with material non-public information about a company obtained directly or indirectly from that\ncompany from purchasing or selling securities of such company, or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person may purchase or sell such securities,\nand (b) agrees to not to purchase or offer to purchase any securities of the Company while in the possession of any such\ninformation.\n5. Covenants of Receiving Party. (a) As of the date of this agreement, except as previously disclosed to the\nCompany (including by virtue of a public filing), Receiving Party represents and warrants that it does not own beneficially\nor of record any securities entitled to be voted generally in the election of the other Company's directors or any direct or\nindirect options or other rights to acquire or dispose of any such securities or any economic or voting interests associated\nwith, or the value of which is derived from, any such securities ("Voting Securities").\n(b) Without limiting the generality or effect of any other provision hereof, Receiving arty agrees that for a period\nending March 31, 2014 (the "Assessment Period"), except within the terms of a specific written request from the\nCompany, neither Receiving Party nor any of its affiliates nor any of their respective representatives or agents acting as a\nprincipal of Receiving Party or such affiliates will propose or publicly announce or otherwise disclose an intent to propose,\nor enter into or agree to enter into, singly or with any other person:\n(i) any form of business combination, acquisition, merger, consolidation or other transaction relating to the\nCompany or any of its affiliates;\n(ii) any form of restructuring, recapitalization or similar transaction with respect to the Company or any of its\naffiliates;\n3\nnor except as aforesaid during the Standstill eriod will Receiving Party or any of its agents or other representatives,\nacting as a principa of Receiving Party:\n(iii acquire, or offer, propose or agree to acquire, by purchase or otherwise, record or beneficial ownership of\nany Voting Securities of the Company;\n(iv) make, or in any way participate in, any solicitation of proxies with respect to any Voting Securities\n(including by the execution of action by written consent of the Company), become a participant in any election\ncontest with respect to the Company, seek to influence any person with respect to any Voting Securities or\ndemand a copy of the Company's list of stockholders or other books and records;\n(v) participate in or encourage the formation of any partnership, syndicate or other group that owns or seeks\nor offers to acquire beneficial ownership of any Voting Securities or that seeks to affect control of the Company\nor has the purpose of circumventing any provision of this agreement;\n(vi) otherwise act, alone or in concert with others (including by providing financing for another person), to seek\nor to offer to control or influence, in any manner, the Company's management, Board of Directors or policies;\n(vii) request any waiver or amendment to any provision of this agreement; or\n(viii) make any proposa or other communication designed to, or which could reasonably be expected to,\ncompel the Company to make a public announcement thereof in respect of any matter referred to in this\nagreement\n(c) In the event that, prior to March 31, 2014, the Company enters into a confidentiality agreement with any third\nparty in connection with possible discussions of a merger, consolidation, sale of stock or assets, tender offer or other\nbusiness combination transaction involving the possible acquisition by such third party of control of, or a sale of all or\nsubstantially all of the assets of, the Company, which agreement provides for a standstill period that ends before March\n31, 2014 or is on terms that are substantially more favorable to the third party than the terms of Paragraph 5(b) hereof, (i)\nthe terms of Paragraph 5(b) hereof will be deemed, without further action, to have been automatically amended so as to\ninclude such shorter standstill period or more favorable terms and (ii) the Company wil notify the R eceiving Party thereof\nand, if requested, the parties will agree to amendments hereto to reflect such changes. F or the avoidance of doubt, a\ndefinitive agreement providing for a transaction of a type referred to in Paragraph 5(b) wil not trigger the protections\nprovided in this Paragraph 5(c).\n(d) Receiving arty agrees to vote or cause to be voted its shares of common stock of the Company beneficially\nowned by it or any of its affiliates in respect of the election of directors at the Company's 2013 annual meeting of\nshareholders (i) in the same proportion as all other shares of common stock are voted by other shareholders or (ii) at\nReceiving arty's election, as recommended by the Company's Board of Directors.\n4\n(e) Notwithstanding anything to the contrary set forth in the foregoing provisions of this Paragraph 5, neither\nReceiving arty nor any of its applicable affiliates will be precluded from voting the shares of common stock of the\nCompany beneficially owned by it in opposition to any transaction involving the sale or acquisition of all or a controlling\nportion of the Company's equity securities or all or substantially all of the Company's assets (whether by merger,\nconsolidation, business combination, tender or exchange offer, recapitalization, restructuring, sale, equity issuance or\notherwise).\n6.\nTermination of Discussions The Company will not be under any contractua or legal obligation of any kind\nwhatsoever to furnish Confidential Information to Receiving Party and reserves the right, in its sole discretion, to\nterminate providing Confidential Information at any time. In that case, on the request of the Company for any or no\nreason, Receiving arty will, and will cause its Representatives to, promptly deliver to the Company or destroy all\nConfidential Information, including all Derived Confidential Information (and all copies thereof and extracts therefrom),\nprovided that (i) neither the Receiving Party nor any of its Representatives will be required to destroy any electronic copy\nof any Confidential Information that is created pursuant to such person's standard electronic backup and archiva\nprocedures if (x) personne whose functions are not primarily information technology in nature do not have access to\nsuch retained copies and (y) personnel whose functions are primarily information technology in nature have access to\nsuch copies only as reasonably necessary for the performance of their information technology duties (e.g., for purposes\nof system recovery), and (ii) the Receiving arty and its Representatives may each retain (A) one copy of any\nConfidential Information to the extent required to defend or maintain any litigation relating to this Agreement or the\nConfidentia Information, or established document retention policies and (B) such copies of the Confidentia Information to\nthe extent required to comply with requirements of applicable law. Compliance with the preceding sentence will be\ncertified in writing by an authorized officer of Receiving Party within five calendar days of the delivery of the notice.\nNotwithstanding the return or destruction of the Confidential Information, each party will continue to be bound by its\nobligations of confidentiality and other obligations under this agreement.\n7. Coordination of Contacts. Prior to March 31, 2014, Receiving Party will not, and wil cause its agents and\nother representatives not to, except within the terms of a specific written request from the Company or any of the\nCompany's authorized representatives, initiate contact with any director, officer, employee or person known to Receiving\nParty to be a securityholder, partner, joint venturer or contracting party of the Company in connection with any matter\nreferred to in this agreement The parties agree that all (a) communications regarding the matters herein contemplated,\n(b) requests for information, and (c) discussions or questions regarding procedures with respect to the matters herein\ncontemplated, will be first submitted or directed to the individual specified on the signature page to this agreement.\n8. No Warranty of Accuracy. Receiving Party acknowledges that neither the Company nor any of its agents or\nrepresentatives makes any representation or warranty as to the accuracy or completeness of any the Confidential\nInformation furnished to Receiving Party. Neither the Company nor any of its agents or other representatives will have\nany liability to eceiving arty or its agents or other representatives resulting from the use of the Confidentia Information.\n5\n9. Miscellaneous. No failure or delay by any party in exercising any right, power or privilege under this\nagreement will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further\nexercise of any right, power or privilege under this agreement. No provision of this agreement may be waived, amended\nor assigned except, as to any waiver or amendment, with the written consent of each party in its sole discretion, which\nconsent specifically refers to the provision waived or amended. If any provision of this agreement is deemed to be invalid,\nillegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this agreement will not in\nany way be affected or impaired thereby. This agreement represents the entire understanding of the parties with respect\nto the matters referred to in this letter agreement and supersedes all prior or contemporaneous understandings, written or\noral, between the parties with respect to such matters.\n10. Governing Law. This agreement is governed by, and wil be construed in accordance with, the internal laws\nof\nthe State of Pennsylvania, without giving effect to the principles of conflict of laws thereof. Each party submits to the\nexclusive jurisdiction of the federal or state courts in Pittsburgh, Pennsylvania (the "Selected Court") in respect of any\naction or proceeding arising out of this agreement, agrees that venue for any action on this agreement will be properly\nlaid in the Selected Court and waives any objection to the bringing of any action or proceeding in the venue.\n11. Injunctive Relief. Each party acknowledges and agrees that money damages would not be a sufficient\nremedy for any breach of this agreement by another party or any of its affiliates, agents or other representatives and that\nthe non-breaching party will be entitled to equitable relief, including injunction and specific performance, as a remedy for\nany breach (and the party wil not raise the defense of an adequate remedy at law) without the party of a bond or other\nform of assurance or surety. Such remedies will be in addition to all other remedies available at law or equity.\n12. Counterparts. This agreement may be executed in two or more counterparts, each of which will be deemed\nan original, but all of which together will constitute one and the same instrument.\n13. Termination. This agreement will terminate without further action two years after the date first above written.\nThe termination will not, however, affect the liability of any party for any prior breach of any provision hereof.\n14. Certain Definitions In addition to the terms defined elsewhere herein, for purposes of this agreement, (a) the\nterm "affiliate" has the meaning set forth in Rule 12b-2 promulgated by the Securities and Exchange Commission under\nthe Securities E xchange Act of 1934 and (b) the term "person" means any individual or legal entity.\n[SIGNATURE PAGE FOLLOWS]\n6\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the\nundersigned, whereupon this agreement will become a binding agreement among the parties\nVery truly yours,\nMichael Baker Corporation\nBy: /s/ H. James McK (night\nName: H. James MCK night\nTitle:\nExecutive VP CLO\nContact person for Paragraph 7:\nName: H. James McK night\nTitle:\nExecuuve VP CLU\nEmail: jmcknight@mbakercorp.com\nAccepted and agreed as of the date first written above:\nGladiator Holdco LLC\nBy: /s/ Thomas J. Campbell\nName: Thomas J. Campbell\nTitle: Chairman\nContact person for Paragraph 7:\nName:homas J. Campbell\nTitleChairman\nEmail:\ncampbell@dccapitalpartners.com\n7	Michael Baker Corporation\nAirside Business Park\n100 Airside Drive\nMoon Township, PA 15108\nJanuary 31, 2013\nGladiator Holdco LLC\nc/o DC Capital Partners, LLC\n11 Canal Center Plaza, Suite 350\nAlexandria, VA 22314\nAttention:\nThomas J. Campbell\nChairman\nLadies & Gentlemen:\nGladiator Holdco LLC (together with its controlled affiliates, “Receiving Party”) has requested that Michael Baker\nCorporation, a Pennsylvania corporation (the “Company”), furnish Receiving Party information relating to the Company\n(such information, as more specifically defined in Paragraph 2 below, “Confidential Information”). In connection therewith,\nReceiving Party agrees to treat the Confidential Information in accordance with the provisions of this agreement and\ncomply with the other provisions hereof.\n1. Use of Confidential Information. Receiving Party will use the Confidential Information only in connection with\na possible transaction involving the Company (any such transaction, a “Transaction” and such purpose, the “Permitted\nPurpose”). For the avoidance of doubt, a “Transaction” will include any transaction between the Receiving Party and the\nCompany or its stockholders, whether or not done on a consensual basis, provided, however, that this sentence does not\nlimit or otherwise affect Paragraph 5 hereof. Receiving Party will treat the Confidential Information in all material respects\nin the same way that it treats its own non-public proprietary information, but in any case using no less than a reasonable\ndegree of care. Receiving Party will not disclose any Confidential Information publicly or to any third party, except that:\n(a)\nReceiving Party may disclose Confidential Information to its directors, officers, attorneys or\nfinancial advisors (collectively, “Representatives”) whom Receiving Party reasonably determines need to know\nthe information for the Permitted Purpose (it being understood that Receiving Party will inform its\nRepresentatives of the confidential nature of the Confidential Information and will cause its Representatives to\ntreat the Confidential Information in the same manner as Receiving Party is required to treat it under this\nagreement);\n(b) Confidential Information may be furnished to any bank or other debt financing source that\nagrees, in writing, for the benefit of the Company, (i) to maintain the confidentiality of the Confidential Information\nsubstantially to the same extent as provided in Paragraphs 1, 2, 3 and 4 hereof and (ii) that it has no agreement,\narrangement or understanding that would preclude it from providing financing to any party to a possible\nTransaction other than Receiving Party and its Affiliates; and\n(c) Confidential Information may be disclosed in accordance with Paragraph 3 hereof.\n2. Confidential Information. For purposes of this agreement, the term “Confidential Information” includes (a) all\ninformation concerning the Company (whether prepared by the Company or its agents or other representatives and\nirrespective of the form of communication and when such communication was made) that is or has been furnished to\nReceiving Party by or on behalf of the Company, (b) the possible terms of any Transaction, and (c) all notes, analyses,\nreports, compilations, studies, interpretations, summaries or other documents that are prepared by Receiving Party or\nany of its Representatives that contain, reflect or are based on, in whole or in part, any of the foregoing (“Derived\nConfidential Information”), provided, however, that the term “Confidential Information” does not include information that:\n(i) is or becomes generally available to the public other than as a result of the disclosure thereof by\nReceiving Party or any of its agents or other representatives or a breach of this agreement by Receiving Party or\nany of its agents or other representatives;\n(ii) was within Receiving Party’s possession before being furnished to Receiving Party by or on\nbehalf of the Company, provided that the source of the information was not bound by a confidentiality agreement\nwith, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with\nrespect to that information;\n(iii) is or becomes available to Receiving Party on a non-confidential basis from a source other than\nthe Company, provided that the source of the information was not bound by a confidentiality agreement with, or\nother contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to\nthat information; or\n(iv) is independently developed by Receiving Party without use of information disclosed by the\nCompany or otherwise violating Receiving Party’s obligations under this agreement.\n3. Requested or Required Disclosure. (a) If Receiving Party or any of its agents or other representatives is\nrequested or required by oral questions, interrogatories, requests for information or documents in a legal proceeding,\nsubpoena, civil investigative demand or other similar legal process to disclose any of the Confidential Information,\nReceiving Party will provide the Company prompt notice of the request or requirement so that the Company may seek a\nprotective order or other appropriate remedy or waive compliance with the provisions of this agreement. If, in the absence\nof a protective order or other similar remedy, Receiving Party or any of its agents or other representatives is required to\ndisclose Confidential Information in any response to any such request or requirement, Receiving Party or any of its\nagents or other representatives may, without liability under this agreement, disclose to such requesting person only that\nportion of the Confidential Information that is required to be disclosed so long as Receiving Party and each of its agents\nor other representatives use reasonable efforts to preserve the confidentiality of all other Confidential Information,\nincluding without limitation by cooperating with the Company to obtain an appropriate protective order or other reliable\nassurance that confidential treatment will be accorded the other Confidential Information by the requesting person.\n2\n(b) Nothing in this Agreement prohibits Receiving Party or its Representatives from disclosing Confidential\nInformation required by applicable federal or state securities laws to be disclosed in connection with any solicitation of\nproxies or any business combination, acquisition, merger, consolidation or other transaction relating to the Company or\nany of its affiliates, or in connection with preparing beneficial ownership reports required by Sections 13(d) or 13(g) of\nthe Securities Exchange Act of 1934, in each case so long as such transaction does not breach Paragraphs 4 or 5\nhereof.\n4. Securities Laws. Receiving Party hereby (a) acknowledges that it is aware (and that its agents or other\nrepresentatives who are apprised of the matters contemplated hereby have been or will be advised) that federal and\nstate laws prohibit persons with material non-public information about a company obtained directly or indirectly from that\ncompany from purchasing or selling securities of such company, or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person may purchase or sell such securities,\nand (b) agrees to not to purchase or offer to purchase any securities of the Company while in the possession of any such\ninformation.\n5. Covenants of Receiving Party. (a) As of the date of this agreement, except as previously disclosed to the\nCompany (including by virtue of a public filing), Receiving Party represents and warrants that it does not own beneficially\nor of record any securities entitled to be voted generally in the election of the other Company’s directors or any direct or\nindirect options or other rights to acquire or dispose of any such securities or any economic or voting interests associated\nwith, or the value of which is derived from, any such securities (“Voting Securities”).\n(b) Without limiting the generality or effect of any other provision hereof, Receiving Party agrees that for a period\nending March 31, 2014 (the “Assessment Period”), except within the terms of a specific written request from the\nCompany, neither Receiving Party nor any of its affiliates nor any of their respective representatives or agents acting as a\nprincipal of Receiving Party or such affiliates will propose or publicly announce or otherwise disclose an intent to propose,\nor enter into or agree to enter into, singly or with any other person:\n(i) any form of business combination, acquisition, merger, consolidation or other transaction relating to the\nCompany or any of its affiliates;\n(ii) any form of restructuring, recapitalization or similar transaction with respect to the Company or any of its\naffiliates;\n3\nnor except as aforesaid during the Standstill Period will Receiving Party or any of its agents or other representatives,\nacting as a principal of Receiving Party:\n(iii) acquire, or offer, propose or agree to acquire, by purchase or otherwise, record or beneficial ownership of\nany Voting Securities of the Company;\n(iv) make, or in any way participate in, any solicitation of proxies with respect to any Voting Securities\n(including by the execution of action by written consent of the Company), become a participant in any election\ncontest with respect to the Company, seek to influence any person with respect to any Voting Securities or\ndemand a copy of the Company’s list of stockholders or other books and records;\n(v) participate in or encourage the formation of any partnership, syndicate or other group that owns or seeks\nor offers to acquire beneficial ownership of any Voting Securities or that seeks to affect control of the Company\nor has the purpose of circumventing any provision of this agreement;\n(vi) otherwise act, alone or in concert with others (including by providing financing for another person), to seek\nor to offer to control or influence, in any manner, the Company’s management, Board of Directors or policies;\n(vii) request any waiver or amendment to any provision of this agreement; or\n(viii) make any proposal or other communication designed to, or which could reasonably be expected to,\ncompel the Company to make a public announcement thereof in respect of any matter referred to in this\nagreement.\n(c) In the event that, prior to March 31, 2014, the Company enters into a confidentiality agreement with any third\nparty in connection with possible discussions of a merger, consolidation, sale of stock or assets, tender offer or other\nbusiness combination transaction involving the possible acquisition by such third party of control of, or a sale of all or\nsubstantially all of the assets of, the Company, which agreement provides for a standstill period that ends before March\n31, 2014 or is on terms that are substantially more favorable to the third party than the terms of Paragraph 5(b) hereof, (i)\nthe terms of Paragraph 5(b) hereof will be deemed, without further action, to have been automatically amended so as to\ninclude such shorter standstill period or more favorable terms and (ii) the Company will notify the Receiving Party thereof\nand, if requested, the parties will agree to amendments hereto to reflect such changes. For the avoidance of doubt, a\ndefinitive agreement providing for a transaction of a type referred to in Paragraph 5(b) will not trigger the protections\nprovided in this Paragraph 5(c).\n(d) Receiving Party agrees to vote or cause to be voted its shares of common stock of the Company beneficially\nowned by it or any of its affiliates in respect of the election of directors at the Company’s 2013 annual meeting of\nshareholders (i) in the same proportion as all other shares of common stock are voted by other shareholders or (ii) at\nReceiving Party’s election, as recommended by the Company’s Board of Directors.\n4\n(e) Notwithstanding anything to the contrary set forth in the foregoing provisions of this Paragraph 5, neither\nReceiving Party nor any of its applicable affiliates will be precluded from voting the shares of common stock of the\nCompany beneficially owned by it in opposition to any transaction involving the sale or acquisition of all or a controlling\nportion of the Company’s equity securities or all or substantially all of the Company’s assets (whether by merger,\nconsolidation, business combination, tender or exchange offer, recapitalization, restructuring, sale, equity issuance or\notherwise).\n6. Termination of Discussions. The Company will not be under any contractual or legal obligation of any kind\nwhatsoever to furnish Confidential Information to Receiving Party and reserves the right, in its sole discretion, to\nterminate providing Confidential Information at any time. In that case, on the request of the Company for any or no\nreason, Receiving Party will, and will cause its Representatives to, promptly deliver to the Company or destroy all\nConfidential Information, including all Derived Confidential Information (and all copies thereof and extracts therefrom),\nprovided that (i) neither the Receiving Party nor any of its Representatives will be required to destroy any electronic copy\nof any Confidential Information that is created pursuant to such person’s standard electronic backup and archival\nprocedures if (x) personnel whose functions are not primarily information technology in nature do not have access to\nsuch retained copies and (y) personnel whose functions are primarily information technology in nature have access to\nsuch copies only as reasonably necessary for the performance of their information technology duties (e.g., for purposes\nof system recovery), and (ii) the Receiving Party and its Representatives may each retain (A) one copy of any\nConfidential Information to the extent required to defend or maintain any litigation relating to this Agreement or the\nConfidential Information, or established document retention policies and (B) such copies of the Confidential Information to\nthe extent required to comply with requirements of applicable law. Compliance with the preceding sentence will be\ncertified in writing by an authorized officer of Receiving Party within five calendar days of the delivery of the notice.\nNotwithstanding the return or destruction of the Confidential Information, each party will continue to be bound by its\nobligations of confidentiality and other obligations under this agreement.\n7. Coordination of Contacts. Prior to March 31, 2014, Receiving Party will not, and will cause its agents and\nother representatives not to, except within the terms of a specific written request from the Company or any of the\nCompany’s authorized representatives, initiate contact with any director, officer, employee or person known to Receiving\nParty to be a securityholder, partner, joint venturer or contracting party of the Company in connection with any matter\nreferred to in this agreement. The parties agree that all (a) communications regarding the matters herein contemplated,\n(b) requests for information, and (c) discussions or questions regarding procedures with respect to the matters herein\ncontemplated, will be first submitted or directed to the individual specified on the signature page to this agreement.\n8. No Warranty of Accuracy. Receiving Party acknowledges that neither the Company nor any of its agents or\nrepresentatives makes any representation or warranty as to the accuracy or completeness of any the Confidential\nInformation furnished to Receiving Party. Neither the Company nor any of its agents or other representatives will have\nany liability to Receiving Party or its agents or other representatives resulting from the use of the Confidential Information.\n5\n9. Miscellaneous. No failure or delay by any party in exercising any right, power or privilege under this\nagreement will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further\nexercise of any right, power or privilege under this agreement. No provision of this agreement may be waived, amended\nor assigned except, as to any waiver or amendment, with the written consent of each party in its sole discretion, which\nconsent specifically refers to the provision waived or amended. If any provision of this agreement is deemed to be invalid,\nillegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this agreement will not in\nany way be affected or impaired thereby. This agreement represents the entire understanding of the parties with respect\nto the matters referred to in this letter agreement and supersedes all prior or contemporaneous understandings, written or\noral, between the parties with respect to such matters.\n10. Governing Law. This agreement is governed by, and will be construed in accordance with, the internal laws\nof the State of Pennsylvania, without giving effect to the principles of conflict of laws thereof. Each party submits to the\nexclusive jurisdiction of the federal or state courts in Pittsburgh, Pennsylvania (the “Selected Court”) in respect of any\naction or proceeding arising out of this agreement, agrees that venue for any action on this agreement will be properly\nlaid in the Selected Court and waives any objection to the bringing of any action or proceeding in the venue.\n11. Injunctive Relief. Each party acknowledges and agrees that money damages would not be a sufficient\nremedy for any breach of this agreement by another party or any of its affiliates, agents or other representatives and that\nthe non-breaching party will be entitled to equitable relief, including injunction and specific performance, as a remedy for\nany breach (and the party will not raise the defense of an adequate remedy at law) without the party of a bond or other\nform of assurance or surety. Such remedies will be in addition to all other remedies available at law or equity.\n12. Counterparts. This agreement may be executed in two or more counterparts, each of which will be deemed\nan original, but all of which together will constitute one and the same instrument.\n13. Termination. This agreement will terminate without further action two years after the date first above written.\nThe termination will not, however, affect the liability of any party for any prior breach of any provision hereof.\n14. Certain Definitions. In addition to the terms defined elsewhere herein, for purposes of this agreement, (a) the\nterm “affiliate” has the meaning set forth in Rule 12b-2 promulgated by the Securities and Exchange Commission under\nthe Securities Exchange Act of 1934 and (b) the term “person” means any individual or legal entity.\n[SIGNATURE PAGE FOLLOWS]\n6\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the\nundersigned, whereupon this agreement will become a binding agreement among the parties.\nVery truly yours,\nMichael Baker Corporation\nBy: /s/ H. James McKnight\nName: H. James McKnight\nTitle: Executive VP & CLO\nContact person for Paragraph 7:\nName: H. James McKnight\nTitle: Executive VP & CLO\nEmail: jmcknight@mbakercorp.com\nAccepted and agreed as of the date first written above:\nGladiator Holdco LLC\nBy: /s/ Thomas J. Campbell\nName: Thomas J. Campbell\nTitle: Chairman\nContact person for Paragraph 7:\nName:Thomas J. Campbell\nTitle:Chairman\nEmail:\ntcampbell@dccapitalpartners.com\n7
+acd14a52da94474c076247260e2174b4.pdf	effective_date jurisdiction party term	Schedule C\nNON DISCLOSURE AGREEMENT\nThis Non Disclosure Agreement (the “NDA”) entered into on the 22nd day of September (the “Effective Date”), 2006 by and between Can-Fite\nBioPharma, Ltd., having its principal place of business at 10 Bareket St. Petach Tikva, Israel (the “Disclosing Party”), and Fuji Techno Interface\nLtd, a company organized under the laws of the State of Japan, having its principal place of business at Kioicho Hills l.F 3-32 Kioicho Chiyoda –\nku Tokyo 102-0094, Japan (the “Reciveing Party”).\nWITNESSETH\nWHEREAS, the DISCLOSING PARTY has disclosed and wishes to disclose to the RECEIVING PARTY certain information relating to\nthe DISCLOSING PARTY’s technology (the “Technology”) and business issue relating thereto (the “Confidential Information”), all of which\ninformation the DISCLOSING PARTY deems to be confidential; and\nWHEREAS, the RECEIVING PARTY has been willing and is willing to receive such information from the DISCLOSING PARTY for\nthe purpose of assisting and advising the Company in the negotiations and ongoing relationships with SKK, regarding, among others, the subject\nmatter of the License Agreement (the “Project”) and any other business matter relating to the Technology; and\nWHEREAS, the RECEIVING PARTY acknowledges the sensitivity of the Confidential Information.\nNOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and promises herein contained, the parties\nhereto agree as follows:\n1.\nThis Agreement shall terminate upon the later to occur of completion of the Project or seven years from the Effective Date first stated\nabove, whichever occurs first. Notwithstanding the aforesaid, the RECEIVING PARTY’s undertaking to maintain the Confidential\nInformation (as defined below) in strictly confidence shall continue for a period of five (5) years after the termination of this\nAgreement.\n2.\nConfidential Information shall , any and all inventions, ideas, discoveries, data, · instructions, designs, information, components,\nmethods, tools, developments, innovations, techniques, materials, technology, protocols, procedures, results, formulae, trade secrets,\nknow-how and other non-public and proprietary materials, products, processes or information, including research, product plans,\nmanufacturing processes, manufacturing or operating costs, services, software, hardware, customer lists, price lists, business plans,\nmarketing plans or financial information, that is or was disclosed or supplied by the Disclosing Party to the Receiving Party in\nconnection with the Project. Disclosures by a Party’s Affiliate shall be deemed disclosures by that Party, and disclosures to a Party’s\nAffiliate shall be deemed disclosures to that Party\n3.\nThe RECEIVING PARTY shall (a) use the Confidential Information solely to the extent necessary for the purpose of the Project; (b)\nrestrict disclosure of the confidential Information to those of its employees who are directly responsible for the fulfillment of such\npurpose; and (c) disclose the Confidential Information only to the extent it is strictly necessary for each such employees to perform such\nduties for the RECEIVING PARTY Before making any disclosure of the Confidential Information to such employee, the RECEIVING\nPARTY shall ensure that such employee is bound by a Confidentiality and Nondisclosure Agreement which prohibits such employee\nfrom disclosing the Confidential Information. Notwithstanding the forgoing, the RECEIVING PARTY shall be jointly liable to the\nDISCLOSING PARTY with each of its employees and ex-employees, at all times, regardless of termination of any labor, employment\nor other relationship, for any breach of confidentiality or nondisclosure obligation by any such person in connection with the\nConfidential Information.\n7\n4.\nInformation shall not be deemed confidential, and the RECEIVING PARTY shall have no obligation with respect to any such\ninformation, which the RECEIVING PARTY can evidence, to the DISCLOSING PARTY by appropriate documentation:\n(i)\nIs already known to the RECEIVING PARTY; or\n(ii)\nIs or becomes publicly known through no wrongful act of the RECEIVING PARTY; or\n(iii)\nIs independently developed by the RECEIVING PARTY or is rightfully received by the RECEIVING PARTY from a\nthird party without restriction and without breach of this Agreement; or\n(iv)\nIs approved for release by written, authorization of the DISCLOSING PARTY.\n5.\nThe Confidential Information is and shall always remain the exclusive property of the DISCLOSING PARTY, and the RECEIVING\nPARTY hereby acknowledges the right, title and interest of the DISCLOSING PARTY in and to the Confidential Information. The\nRECEIVING PARTY will not at any time infringe, contest, dispute or question such right, title or interest nor aid others in doing so\ndirectly or indirectly. The Provision of this Section will not apply to Confidential Information previously known to The RECEIVING\nPARTY as provided in Section 4 above.\n6.\nThe RECEIVING PARTY shall use the same standard of care it uses to protect its own, Confidential Information to avoid disclosure to\nany third party of any the DISCLOSING PARTY Confidential Information for the duration of this Agreement and for a period of five\n(5) years from the Effective Date of the termination of this Agreement. The RECEIVING PARTY shall not disclose to other of its\ncustomers, clients, contractors, suppliers or other affiliates its relationship with the DISCLOSING PARTY nor the Project which is the\nsubstance of this Agreement.\n7.\nAll the DISCLOSING PARTY’s Confidential Information and all tangible forms of such information including, but not limited to,\nbusiness information, data, documents, drawings, specifications, prototypes, and software received hereunder by the RECEIVING\nPARTY from the DISCLOSING PARTY shall remain the property of the DISCLOSING PARTY. Upon written request by the\nDISCLOSING PARTY, the RECEIVING PARTY shall return to the DISCLOSING PARTY all tangible forms of the DISCLOSING\nPARTY Confidential Information, including any and all copies thereof, except for one copy which may be retained by an attorney for\nthe RECEIVING PARTY for archival purposes.\n8\n8.\nNothing contained in this Agreement shall be construed as (i) requiring the DISCLOSING PARTY to disclose, or the RECEIVING\nPARTY to accept, any particular information, or (ii) granting to the RECEIVING PARTY a license, either express or implied, under any\npatent, copyright, trade secret, or other intellectual property rights now or hereafter owned, obtained, or licensable by the DISCLOSING\nPARTY.\n9.\nThis Agreement and any dispute arising from the performance or breach hereof shall be governed by and construed and enforced in\naccordance with the laws of State of New York, without reference to conflicts of laws principles, and only the courts sitting in that State\nshall have exclusive jurisdiction of the parties for the purposes of adjudicating any disputes under this Agreement. The RECEIVING\nPARTY acknowledges that the Confidential Information is the valuable proprietary information and/or confidential trade secrets of the\nDISCLOSING PARTY and that the DISCLOSING PARTY will sustain irreparable financial and business loss by any breach of the\nterms of this Agreement, in the event of a breach of this Agreement by the RECEIVING PARTY, the DISCLOSING PARTY shall be\nentitled, without prejudice to all attendant remedies, to all injunction or other court-order relief that may be available against a\nthreatened or continuing breach. The parties further agree that service of process may be accomplished by certified mail, as follows:\nIf to the DISCLOSlNG PARTY:\n10 Bareket St.\nPetach Tikva\nIsrael\nTel: (972)-3-924-1114\nFax: (972)-3 -924-9378\n.\nIf to the RECEIVING PARTY\nKioicho Hills 1F 3-32\nKioicho Chiyoda –ku\nTokyo 102-0094\nJapan\nTel:\n+81-3 -5210-2231\nFax:\n+81-3 -5210-5050\n10.\nNeither party under this NDA shall publicly announce or disclose the existence of this NDA, or its contents, any discussions relating\nthereto, or the discussions of the business relationship being considered, without the prior consent of the other party or except as may be\nrequired by law, in which case the party required to make disclosure shall give the other party the maximum feasible prior notice of such\ndisclosure.\n11.\nThis Agreement expresses the entire agreement and understanding between the parties respecting the subject matter hereof and shall not\nbe modified except by a writing signed by authorized representatives of the parties on or after the date hereof.\n12.\nThe persons executing this Agreement for and on behalf of the parties hereto represent that they are fully authorized to do so for and on\nbehalf of their respective principals.\n9\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the effective date first written above.\nTHE DISCLOSING PARTY\nTHE RECEIVING PARTY\n/s/ Pnina Fishman\n/s/ Osamu Fujimaki\nCan-Fite BioPharma, Ltd\nFuji Techno Interface Ltd\nBy:\nPnina Fishman\nBy: Osamu Fujimaki\nTitle: CEO\nTitle: President\nDate: September 22, 2006\nDate: September 28, 2006\n10	Schedule C\nNON DISCLOSURE AGREEMENT\nThis Non Disclosure Agreement (the “NDA”) entered into on the 22nd day of September (the “Effective Date”), 2006 by and between Can-Fite\nBioPharma, Ltd., having its principal place of business at 10 Bareket St. Petach Tikva, Israel (the “Disclosing Party”), and Fuji Techno Interface\nLtd, a company organized under the laws of the State of Japan, having its principal place of business at Kioicho Hills 1.F 3-32 Kioicho Chiyoda —\nku Tokyo 102-0094, Japan (the “Reciveing Party”).\nWITNESSETH\nWHEREAS, the DISCLOSING PARTY has disclosed and wishes to disclose to the RECEIVING PARTY certain information relating to\nthe DISCLOSING PARTY’s technology (the “Technology”) and business issue relating thereto (the “Confidential Information”), all of which\ninformation the DISCLOSING PARTY deems to be confidential; and\nWHEREAS, the RECEIVING PARTY has been willing and is willing to receive such information from the DISCLOSING PARTY for\nthe purpose of assisting and advising the Company in the negotiations and ongoing relationships with SKK, regarding, among others, the subject\nmatter of the License Agreement (the “Project”) and any other business matter relating to the Technology; and\nWHEREAS, the RECEIVING PARTY acknowledges the sensitivity of the Confidential Information.\nNOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and promises herein contained, the parties\nhereto agree as follows:\n1. This Agreement shall terminate upon the later to occur of completion of the Project or seven years from the Effective Date first stated\nabove, whichever occurs first. Notwithstanding the aforesaid, the RECEIVING PARTY’s undertaking to maintain the Confidential\nInformation (as defined below) in strictly confidence shall continue for a period of five (5) years after the termination of this\nAgreement.\n2. Confidential Information shall , any and all inventions, ideas, discoveries, data, - instructions, designs, information, components,\nmethods, tools, developments, innovations, techniques, materials, technology, protocols, procedures, results, formulae, trade secrets,\nknow-how and other non-public and proprietary materials, products, processes or information, including research, product plans,\nmanufacturing processes, manufacturing or operating costs, services, software, hardware, customer lists, price lists, business plans,\nmarketing plans or financial information, that is or was disclosed or supplied by the Disclosing Party to the Receiving Party in\nconnection with the Project. Disclosures by a Party’s Affiliate shall be deemed disclosures by that Party, and disclosures to a Party’s\nAffiliate shall be deemed disclosures to that Party\n3. The RECEIVING PARTY shall (a) use the Confidential Information solely to the extent necessary for the purpose of the Project; (b)\nrestrict disclosure of the confidential Information to those of its employees who are directly responsible for the fulfillment of such\npurpose; and (c) disclose the Confidential Information only to the extent it is strictly necessary for each such employees to perform such\nduties for the RECEIVING PARTY Before making any disclosure of the Confidential Information to such employee, the RECEIVING\nPARTY shall ensure that such employee is bound by a Confidentiality and Nondisclosure Agreement which prohibits such employee\nfrom disclosing the Confidential Information. Notwithstanding the forgoing, the RECEIVING PARTY shall be jointly liable to the\nDISCLOSING PARTY with each of its employees and ex-employees, at all times, regardless of termination of any labor, employment\nor other relationship, for any breach of confidentiality or nondisclosure obligation by any such person in connection with the\nConfidential Information.\nInformation shall not be deemed confidential, and the RECEIVING PARTY shall have no obligation with respect to any such\ninformation, which the RECEIVING PARTY can evidence, to the DISCLOSING PARTY by appropriate documentation:\n@) Is already known to the RECEIVING PARTY; or\n(ii) Is or becomes publicly known through no wrongful act of the RECEIVING PARTY; or\n(iii) Is independently developed by the RECEIVING PARTY or is rightfully received by the RECEIVING PARTY from a\nthird party without restriction and without breach of this Agreement; or\n@iv) Is approved for release by written, authorization of the DISCLOSING PARTY.\nThe Confidential Information is and shall always remain the exclusive property of the DISCLOSING PARTY, and the RECEIVING\nPARTY hereby acknowledges the right, title and interest of the DISCLOSING PARTY in and to the Confidential Information. The\nRECEIVING PARTY will not at any time infringe, contest, dispute or question such right, title or interest nor aid others in doing so\ndirectly or indirectly. The Provision of this Section will not apply to Confidential Information previously known to The RECEIVING\nPARTY as provided in Section 4 above.\nThe RECEIVING PARTY shall use the same standard of care it uses to protect its own, Confidential Information to avoid disclosure to\nany third party of any the DISCLOSING PARTY Confidential Information for the duration of this Agreement and for a period of five\n(5) years from the Effective Date of the termination of this Agreement. The RECEIVING PARTY shall not disclose to other of its\ncustomers, clients, contractors, suppliers or other affiliates its relationship with the DISCLOSING PARTY nor the Project which is the\nsubstance of this Agreement.\nAll the DISCLOSING PARTY’s Confidential Information and all tangible forms of such information including, but not limited to,\nbusiness information, data, documents, drawings, specifications, prototypes, and software received hereunder by the RECEIVING\nPARTY from the DISCLOSING PARTY shall remain the property of the DISCLOSING PARTY. Upon written request by the\nDISCLOSING PARTY, the RECEIVING PARTY shall return to the DISCLOSING PARTY all tangible forms of the DISCLOSING\nPARTY Confidential Information, including any and all copies thereof, except for one copy which may be retained by an attorney for\nthe RECEIVING PARTY for archival purposes.\n10. 11. 12. Nothing contained in this Agreement shall be construed as (i) requiring the DISCLOSING PARTY to disclose, or the RECEIVING\nPARTY to accept, any particular information, or (ii) granting to the RECEIVING PARTY a license, either express or implied, under any\npatent, copyright, trade secret, or other intellectual property rights now or hereafter owned, obtained, or licensable by the DISCLOSING\nPARTY.\nThis Agreement and any dispute arising from the performance or breach hereof shall be governed by and construed and enforced in\naccordance with the laws of State of New York, without reference to conflicts of laws principles, and only the courts sitting in that State\nshall have exclusive jurisdiction of the parties for the purposes of adjudicating any disputes under this Agreement. The RECEIVING\nPARTY acknowledges that the Confidential Information is the valuable proprietary information and/or confidential trade secrets of the\nDISCLOSING PARTY and that the DISCLOSING PARTY will sustain irreparable financial and business loss by any breach of the\nterms of this Agreement, in the event of a breach of this Agreement by the RECEIVING PARTY, the DISCLOSING PARTY shall be\nentitled, without prejudice to all attendant remedies, to all injunction or other court-order relief that may be available against a\nthreatened or continuing breach. The parties further agree that service of process may be accomplished by certified mail, as follows:\nIf to the DISCLOSING PARTY:\n10 Bareket St.\nPetach Tikva\nIsrael\nTel:  (972)-3-924-1114\nFax: (972)-3-924-9378\nIf to the RECEIVING PARTY\nKioicho Hills 1F 3-32\nKioicho Chiyoda —ku\nTokyo 102-0094\nJapan\nTel: +81-3-5210-2231\nFax: +81-3-5210-5050\nNeither party under this NDA shall publicly announce or disclose the existence of this NDA, or its contents, any discussions relating\nthereto, or the discussions of the business relationship being considered, without the prior consent of the other party or except as may be\nrequired by law, in which case the party required to make disclosure shall give the other party the maximum feasible prior notice of such\ndisclosure.\nThis Agreement expresses the entire agreement and understanding between the parties respecting the subject matter hereof and shall not\nbe modified except by a writing signed by authorized representatives of the parties on or after the date hereof.\nThe persons executing this Agreement for and on behalf of the parties hereto represent that they are fully authorized to do so for and on\nbehalf of their respective principals.\nIN WITNESS WHEREQF, the parties hereto have executed this Agreement as of the effective date first written above.\nTHE DISCLOSING PARTY THE RECEIVING PARTY\n/s/ Pnina Fishman /s/ Osamu Fujimaki\nCan-Fite BioPharma, Ltd Fuji Techno Interface Ltd\nBy: Pnina Fishman By: Osamu Fujimaki\nTitle: CEO Title:  President\nDate:  September 22, 2006 Date:  September 28, 2006\n10	Schedule C\nNON DISCLOSURE AGREEMENT\nThis Non Disclosure Agreement (the "NDA") entered into on the 22nd day of September (the "Effective Date"), 2006 by and between Can-Fite\nBioPharma, Ltd., having its principal place of business at 10 Bareket St. Petach Tikva, Israel (the "Disclosing Party"), and Fuji Techno Interface\nLtd, a company organized under the laws of the State of Japan, having its principal place of business at Kioicho Hills 1.F 3-32 Kioicho Chiyoda\nku Tokyo 102-0094, Japan (the "Reciveing Party").\nWITNESSETH\nWHEREAS, the DISCLOSING PARTY has disclosed and wishes to disclose to the RECEIVING PARTY certain information relating to\nthe DISCLOSING PARTY's technology (the "Technology") and business issue relating thereto (the "Confidential Information"), all of which\ninformation the DISCLOSING PARTY deems to be confidential; and\nWHEREAS, the RECEIVING PARTY has been willing and is willing to receive such information from the DISCLOSING PARTY for\nthe purpose of assisting and advising the Company in the negotiations and ongoing relationships with SKK, regarding, among others, the subject\nmatter of the License Agreement (the "Project") and any other business matter relating to the Technology; and\nWHEREAS, the RECEIVING PARTY acknowledges the sensitivity of the Confidential Information.\nNOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and promises herein contained, the parties\nhereto agree as follows:\n1.\nThis Agreement shall terminate upon the later to occur of completion of the Project or seven years from the Effective Date first stated\nabove, whichever occurs first. Notwithstanding the aforesaid, the RECEIVING PARTY's undertaking to maintain the Confidential\nInformation (as defined below) in strictly confidence shall continue for a period of five (5) years after the termination of this\nAgreement.\n2.\nConfidential Information shall any and all inventions, ideas, discoveries, data, instructions, designs, information, components,\nmethods, tools, developments, innovations, techniques, materials, technology, protocols, procedures, results, formulae, trade secrets,\nknow-how and other non-public and proprietary materials, products, processes or information, including research, product plans,\nmanufacturing processes, manufacturing or operating costs, services, software, hardware, customer lists, price lists, business plans,\nmarketing plans or financial information, that is or was disclosed or supplied by the Disclosing Party to the Receiving Party in\nconnection with the Project. Disclosures by a Party's Affiliate shall be deemed disclosures by that Party, and disclosures to a Party's\nAffiliate shall be deemed disclosures to that Party\n3.\nThe RECEIVING PARTY shall (a) use the Confidentia Information solely to the extent necessary for the purpose of the Project; (b)\nrestrict disclosure of the confidential Information to those of its employees who are directly responsible for the fulfillment of such\npurpose; and (c) disclose the Confidential Information only to the extent it is strictly necessary for each such employees to perform such\nduties for the RECEIVING PARTY Before making any disclosure of the Confidential Information to such employee, the RECEIVING\nPARTY shall ensure that such employee is bound by a Confidentiality and Nondisclosure Agreement which prohibits such employee\nfrom disclosing the Confidential Information. Notwithstanding the forgoing, the RECEIVING PARTY shall be jointly liable to the\nDISCLOSING PARTY with each of its employees and ex-employees, at all times, regardless of termination of any labor, employment\nor other relationship, for any breach of confidentiality or nondisclosure obligation by any such person in connection with the\nConfidential Information.\n7\n4.\nInformation shall not be deemed confidential, and the RECEIVING PARTY shall have no obligation with respect to any such\ninformation, which the RECEIVING PARTY can evidence, to the DISCLOSING PARTY by appropriate documentation:\n(i)\nIs already known to the RECEIVING PARTY; or\n(ii)\nIs or becomes publicly known through no wrongful act of the RECEIVING PARTY; or\n(iii)\nIs independently developed by the RECEIVING PARTY or is rightfully received by the RECEIVING PARTY from a\nthird party without restriction and without breach of this Agreement; or\n(iv)\nIs approved for release by written, authorization of the DISCLOSING PARTY.\n5.\nThe Confidential Information is and shall always remain the exclusive property of the DISCLOSING PARTY, and the RECEIVING\nPARTY hereby acknowledges the right, title and interest of the DISCLOSING PARTY in and to the Confidential Information. The\nRECEIVING PARTY will not at any time infringe, contest, dispute or question such right, title or interest nor aid others in doing so\ndirectly or indirectly. The Provision of this Section will not apply to Confidential Information previously known to The RECEIVING\nPARTY as provided in Section 4 above.\n6.\nThe RECEIVING PARTY shall use the same standard of care it uses to protect its own, Confidentia Information to avoid disclosure to\nany\nthird party of any the DISCLOSING PARTY Confidential Information for the duration of this Agreement and for a period of five\n(5) years from the Effective Date of the termination of this Agreement. The RECEIVING PARTY shall not disclose to other of its\ncustomers, clients, contractors, suppliers or other affiliates its relationship with the DISCLOSING PARTY nor the Project which is the\nsubstance of this Agreement.\n7.\nAll the DISCLOSING PARTY's Confidential Information and all tangible forms of such information including, but not limited to,\nbusiness information, data, documents, drawings, specifications, prototypes, and software received hereunder by the RECEIVING\nPARTY from the DISCLOSING PARTY shall remain the property of the DISCLOSING PARTY. Upon written request by the\nDISCLOSING PARTY, the RECEIVING PARTY shall return to the DISCLOSING PARTY all tangible forms of the DISCLOSING\nPARTY Confidential Information, including any and all copies thereof, except for one copy which may be retained by an attorney for\nthe RECEIVING PARTY for archival purposes.\n8\n8.\nNothing contained in this Agreement shall be construed as (i) requiring the DISCLOSING PARTY to disclose, or the RECEIVING\nPARTY to accept, any particular information, or (ii) granting to the RECEIVING PARTY a license, either express or implied, under any\npatent, copyright, trade secret, or other intellectual property rights now or hereafter owned, obtained, or licensable by the DISCLOSING\nPARTY.\n9.\nThis Agreement and any dispute arising from the performance or breach hereof shall be governed by and construed and enforced in\naccordance with the laws of State of New York, without reference to conflicts of laws principles, and only the courts sitting in that State\nshall\nhave exclusive jurisdiction of the parties for the purposes of adjudicating any disputes under this Agreement. The RECEIVING\nPARTY acknowledges that the Confidential Information is the valuable proprietary information and/or confidential trade secrets of the\nDISCLOSING PARTY and that the DISCLOSING PARTY will sustain irreparable financial and business loss by any breach of the\nterms of this Agreement, in the event of a breach of this Agreement by the RECEIVING PARTY, the DISCLOSING PARTY shall be\nentitled, without prejudice to all attendant remedies, to all injunction or other court-order relief that may be available against a\nthreatened or continuing breach. The parties further agree that service of process may be accomplished by certified mail, as follows:\nIf to the DISCLOSING PARTY:\n10 Bareket St.\nPetach Tikva\nIsrael\nTel: (972)-3-924-1114\nFax: (972)-3-924-9378\nIf to the RECEIVING PARTY\nKioicho Hills 1F 3-32\nKioicho Chiyoda -ku\nTokyo 102-0094\nJapan\nTel: +81-3-5210-2231\nFax: +81-3-5210-5050\n10.\nNeither party under this NDA shall publicly announce or disclose the existence of this NDA, or its contents, any discussions relating\nthereto, or the discussions of the business relationship being considered, without the prior consent of the other party or except as may be\nrequired by law, in which case the party required to make disclosure shall give the other party the maximum feasible prior notice of such\ndisclosure.\n11.\nThis Agreement expresses the entire agreement and understanding between the parties respecting the subject matter hereof and shall not\nbe modified except by a writing signed by authorized representatives of the parties on or after the date hereof.\n12.\nThe persons executing this Agreement for and on behalf of the parties hereto represent that they are fully authorized to do so for and on\nbehalf of their respective principals.\n9\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the effective date first written above.\nTHE DISCLOSING PARTY\nTHE RECEIVING PARTY\n/s/ Pnina Fishman\n/s/ Osamu Fujimaki\nCan-Fite BioPharma, Ltd\nFuji Techno Interface Ltd\nBy:\nPnina Fishman\nBy:\nOsamu Fujimaki\nTitle:\nCEO\nTitle: President\nDate:\nSeptember 22, 2006\nDate:\nSeptember 28, 2006\n10	Schedule C\nNON DISCLOSURE AGREEMENT\nThis Non Disclosure Agreement (the “NDA”) entered into on the 22nd day of September (the “Effective Date”), 2006 by and between Can-Fite\nBioPharma, Ltd., having its principal place of business at 10 Bareket St. Petach Tikva, Israel (the “Disclosing Party”), and Fuji Techno Interface\nLtd, a company organized under the laws of the State of Japan, having its principal place of business at Kioicho Hills l.F 3-32 Kioicho Chiyoda –\nku Tokyo 102-0094, Japan (the “Reciveing Party”).\nWITNESSETH\nWHEREAS, the DISCLOSING PARTY has disclosed and wishes to disclose to the RECEIVING PARTY certain information relating to\nthe DISCLOSING PARTY’s technology (the “Technology”) and business issue relating thereto (the “Confidential Information”), all of which\ninformation the DISCLOSING PARTY deems to be confidential; and\nWHEREAS, the RECEIVING PARTY has been willing and is willing to receive such information from the DISCLOSING PARTY for\nthe purpose of assisting and advising the Company in the negotiations and ongoing relationships with SKK, regarding, among others, the subject\nmatter of the License Agreement (the “Project”) and any other business matter relating to the Technology; and\nWHEREAS, the RECEIVING PARTY acknowledges the sensitivity of the Confidential Information.\nNOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and promises herein contained, the parties\nhereto agree as follows:\n1.\nThis Agreement shall terminate upon the later to occur of completion of the Project or seven years from the Effective Date first stated\nabove, whichever occurs first. Notwithstanding the aforesaid, the RECEIVING PARTY’s undertaking to maintain the Confidential\nInformation (as defined below) in strictly confidence shall continue for a period of five (5) years after the termination of this\nAgreement.\n2.\nConfidential Information shall , any and all inventions, ideas, discoveries, data, · instructions, designs, information, components,\nmethods, tools, developments, innovations, techniques, materials, technology, protocols, procedures, results, formulae, trade secrets,\nknow-how and other non-public and proprietary materials, products, processes or information, including research, product plans,\nmanufacturing processes, manufacturing or operating costs, services, software, hardware, customer lists, price lists, business plans,\nmarketing plans or financial information, that is or was disclosed or supplied by the Disclosing Party to the Receiving Party in\nconnection with the Project. Disclosures by a Party’s Affiliate shall be deemed disclosures by that Party, and disclosures to a Party’s\nAffiliate shall be deemed disclosures to that Party\n3.\nThe RECEIVING PARTY shall (a) use the Confidential Information solely to the extent necessary for the purpose of the Project; (b)\nrestrict disclosure of the confidential Information to those of its employees who are directly responsible for the fulfillment of such\npurpose; and (c) disclose the Confidential Information only to the extent it is strictly necessary for each such employees to perform such\nduties for the RECEIVING PARTY Before making any disclosure of the Confidential Information to such employee, the RECEIVING\nPARTY shall ensure that such employee is bound by a Confidentiality and Nondisclosure Agreement which prohibits such employee\nfrom disclosing the Confidential Information. Notwithstanding the forgoing, the RECEIVING PARTY shall be jointly liable to the\nDISCLOSING PARTY with each of its employees and ex-employees, at all times, regardless of termination of any labor, employment\nor other relationship, for any breach of confidentiality or nondisclosure obligation by any such person in connection with the\nConfidential Information.\n7\n4.\nInformation shall not be deemed confidential, and the RECEIVING PARTY shall have no obligation with respect to any such\ninformation, which the RECEIVING PARTY can evidence, to the DISCLOSING PARTY by appropriate documentation:\n(i)\nIs already known to the RECEIVING PARTY; or\n(ii)\nIs or becomes publicly known through no wrongful act of the RECEIVING PARTY; or\n(iii)\nIs independently developed by the RECEIVING PARTY or is rightfully received by the RECEIVING PARTY from a\nthird party without restriction and without breach of this Agreement; or\n(iv)\nIs approved for release by written, authorization of the DISCLOSING PARTY.\n5.\nThe Confidential Information is and shall always remain the exclusive property of the DISCLOSING PARTY, and the RECEIVING\nPARTY hereby acknowledges the right, title and interest of the DISCLOSING PARTY in and to the Confidential Information. The\nRECEIVING PARTY will not at any time infringe, contest, dispute or question such right, title or interest nor aid others in doing so\ndirectly or indirectly. The Provision of this Section will not apply to Confidential Information previously known to The RECEIVING\nPARTY as provided in Section 4 above.\n6.\nThe RECEIVING PARTY shall use the same standard of care it uses to protect its own, Confidential Information to avoid disclosure to\nany third party of any the DISCLOSING PARTY Confidential Information for the duration of this Agreement and for a period of five\n(5) years from the Effective Date of the termination of this Agreement. The RECEIVING PARTY shall not disclose to other of its\ncustomers, clients, contractors, suppliers or other affiliates its relationship with the DISCLOSING PARTY nor the Project which is the\nsubstance of this Agreement.\n7.\nAll the DISCLOSING PARTY’s Confidential Information and all tangible forms of such information including, but not limited to,\nbusiness information, data, documents, drawings, specifications, prototypes, and software received hereunder by the RECEIVING\nPARTY from the DISCLOSING PARTY shall remain the property of the DISCLOSING PARTY. Upon written request by the\nDISCLOSING PARTY, the RECEIVING PARTY shall return to the DISCLOSING PARTY all tangible forms of the DISCLOSING\nPARTY Confidential Information, including any and all copies thereof, except for one copy which may be retained by an attorney for\nthe RECEIVING PARTY for archival purposes.\n8\n8.\nNothing contained in this Agreement shall be construed as (i) requiring the DISCLOSING PARTY to disclose, or the RECEIVING\nPARTY to accept, any particular information, or (ii) granting to the RECEIVING PARTY a license, either express or implied, under any\npatent, copyright, trade secret, or other intellectual property rights now or hereafter owned, obtained, or licensable by the DISCLOSING\nPARTY.\n9.\nThis Agreement and any dispute arising from the performance or breach hereof shall be governed by and construed and enforced in\naccordance with the laws of State of New York, without reference to conflicts of laws principles, and only the courts sitting in that State\nshall have exclusive jurisdiction of the parties for the purposes of adjudicating any disputes under this Agreement. The RECEIVING\nPARTY acknowledges that the Confidential Information is the valuable proprietary information and/or confidential trade secrets of the\nDISCLOSING PARTY and that the DISCLOSING PARTY will sustain irreparable financial and business loss by any breach of the\nterms of this Agreement, in the event of a breach of this Agreement by the RECEIVING PARTY, the DISCLOSING PARTY shall be\nentitled, without prejudice to all attendant remedies, to all injunction or other court-order relief that may be available against a\nthreatened or continuing breach. The parties further agree that service of process may be accomplished by certified mail, as follows:\nIf to the DISCLOSlNG PARTY:\n10 Bareket St.\nPetach Tikva\nIsrael\nTel: (972)-3-924-1114\nFax: (972)-3 -924-9378\n.\nIf to the RECEIVING PARTY\nKioicho Hills 1F 3-32\nKioicho Chiyoda –ku\nTokyo 102-0094\nJapan\nTel:\n+81-3 -5210-2231\nFax:\n+81-3 -5210-5050\n10.\nNeither party under this NDA shall publicly announce or disclose the existence of this NDA, or its contents, any discussions relating\nthereto, or the discussions of the business relationship being considered, without the prior consent of the other party or except as may be\nrequired by law, in which case the party required to make disclosure shall give the other party the maximum feasible prior notice of such\ndisclosure.\n11.\nThis Agreement expresses the entire agreement and understanding between the parties respecting the subject matter hereof and shall not\nbe modified except by a writing signed by authorized representatives of the parties on or after the date hereof.\n12.\nThe persons executing this Agreement for and on behalf of the parties hereto represent that they are fully authorized to do so for and on\nbehalf of their respective principals.\n9\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the effective date first written above.\nTHE DISCLOSING PARTY\nTHE RECEIVING PARTY\n/s/ Pnina Fishman\n/s/ Osamu Fujimaki\nCan-Fite BioPharma, Ltd\nFuji Techno Interface Ltd\nBy:\nPnina Fishman\nBy: Osamu Fujimaki\nTitle: CEO\nTitle: President\nDate: September 22, 2006\nDate: September 28, 2006\n10
+ad1d6128258524d7b4e21d7cb333cd34.pdf	effective_date jurisdiction party term	EX-10 .9 6 hpyexhibit109michaellawler.htm CONFIDENTIALITY, NON-COMPETE AGREEMENT MICHAEL LAWLER\nEMPLOYEE CONFIDENTIAL INFORMATION\nAND\nNONCOMPETITION AGREEMENT\nThis Employee Confidential Information and Noncompetition Agreement is made and entered into on\nthis 13th day of July, 2012, by and between Michael A. Lawler, hereinafter “Employee,” and Heartland\nPayment Systems, Inc., a Delaware corporation (collectively with any and all current and future subsidiary\nand/or affiliate companies, the “Company”).\nWHEREAS, Employee has established an employment relationship with the Company and has\nreceived, and may continue to receive, certain benefits including stock grants and options; and\nWHEREAS, by reason of employment by the Company, Employee has received, and will continue to\nreceive, the value and advantage of confidential information and special training and skills, and the expert\nknowledge and experience of the contacts with other Company employees; and\nWHEREAS, the future granting of stock grants and options represents an advantage to Employee and\nwas conditioned upon Employee entering into this Agreement; and\nNOW THEREFORE, in exchange for good and valuable consideration, the sufficiency and receipt of\nwhich is hereby acknowledged, it is agreed as follows:\nSection 1. Scope of Agreement.\n(a)\nThis contract is not a contract of employment for any particular term. Employee's employment\nby the Company is at will, unless otherwise agreed by the Company and Employee in writing.\n(b)\nSeverance policies and procedures are as set forth in the Employee Policy Manual of the\nCompany; provided, that in the event of a conflict between this Agreement and the Employee Policy Manual,\nthis Agreement shall govern.\nSection 2. Severance and Bonuses.\n(a)\nIn consideration of the covenants by Employee contained below, in the event of a termination\nof Employee's employment by action of the Company other than for Cause or Disability, the Employee will\nreceive severance pay, in an amount equal to the base salary that would have been paid for a period of twelve\n(12) months payable in accordance with the Company's regular payroll practices, plus medical benefits for such\n1\nperiod; provided, that the Employee shall not be eligible to receive such severance pay unless such termination\nof employment occurs after the ninetieth (90th) day of the Employee's employment by the Company. Medical\nbenefit continuation during such severance period shall be counted against the benefit continuation period\nrequired under COBRA.\n(b)\nIn the event of a termination of Employee's employment by action of the Company other than\nfor Cause or in the event of termination of Employee's employment by death of Employee, the Employee shall\nalso be entitled to receive a pro rata portion (based on the number of days of Employee's employment during\nthe fiscal quarter in which the Employee's employment is terminated) of any bonus payment that would have\nbeen payable to him for that fiscal quarter if the Employee had been in the employ of the Company for the full\nfiscal quarter. If the Employee's compensation arrangement did not contemplate a bonus payable on a quarterly\nbasis, but instead contemplated a bonus paid on some longer fiscal period (such as a half-year or full year), then\nthe pro rata bonus shall be computed based on the number of days of Employee's employment during such\nlonger fiscal period in which the Employee's employment is terminated and the amount of the bonus payment\nthat would have been payable to him for such longer fiscal period. No bonus will be payable to the Employee\nwith respect to any bonus period commencing after the bonus period in which the Employee's employment\nterminated.\n(c)\nCause. “Cause” means:\n(i)\nThe Employee has breached the provisions of Section 4, Section 5, Section 6, or Section\n7 of this Agreement in any material respect;\n(ii)\nThe Employee has been convicted of, or plead guilty or no contest to, (A) fraud,\nmisappropriation or embezzlement in connection with the Company's business, or (B) a felony, and has\nfailed to submit a resignation in accordance with Section 2(e) below; or\n(iii)\nThe Employee has breached his or her duties hereunder or failed to perform his or her\nduties as an officer or employee of the Company, if such breach or failure has not been cured within\nthirty (30) days after receipt of written notice from the Company of such breach or failure.\nNotwithstanding the foregoing, the Employee shall not be deemed to have been terminated for Cause\npursuant to clause (i) above unless and until there shall have been delivered to the Employee (A) a notice of\ntermination and (B) a copy of a resolution duly adopted by the Board of Directors of the Company finding that,\nafter reasonable notice to the Employee and an opportunity to be heard, in the good faith opinion of the Board\nof Directors of the Company, the Employee has engaged in conduct constituting Cause for termination\nhereunder.\n2\n(d)\nDisability. “Disability” means any mental or physical condition that renders the Employee\nunable to perform the essential functions of his position, with or without reasonable accommodation, for a\nperiod in excess of six (6) months.\n(e)\nIf the Employee is ever convicted of, or pleads guilty or no contest to, any felony offense, then\nthe Employee shall immediately tender a resignation from each and every position the Employee then holds\nwith the Company (whether as officer, director, employee, consultant or otherwise).\nSection 3. Employees' Acknowledgments.\n(a)\nThe Employee understands and acknowledges that because of the confidential and sensitive\nnature of the information to which the Employee will have access during the course of his employment with the\nCompany, any unauthorized use, disclosure or misappropriation of such information will cause irreparable\ndamage to the Company.\n(b)\nThe Employee acknowledges that the Company has expended considerable resources to\ndevelop the confidential information and the relationships that the Company enjoys with its customers,\nsuppliers, employees, officers and other agents, and these assets of the Company are critical to the business of\nthe Company. The Employee agrees that the restrictions set forth below are necessary to prevent even the\ninadvertent disclosure of this confidential information or the interference with these relationships and to protect\nthe legitimate business interests of the Company and are reasonable in scope and content.\nSection 4. Protection of Information.\n(a)\nThe Employee hereby covenants with Company that, throughout the term of his employment\nby the Company, Employee will serve Company's best interests loyally and diligently. Throughout the course of\nemployment by Company and thereafter, Employee will not disclose to any person, firm, corporation or entity\n(except when expressly authorized in writing by Company) any information relating to Company's business,\nincluding, without limitation, merchant application processing and credit underwriting software, merchant\ninformation systems, sales compensation and sales force automation software and systems, electronic payment\ntransaction processing software, fraud and risk analysis systems, human resources and time and attendance\ninformation systems and software, payroll services information systems and payroll application processing\nsoftware, sales policy documents, marketing communications materials, information relating to trade secrets,\nbusiness methods, products, processes, procedures, development or experimental projects, suppliers, customer\nlists or the needs of customers or prospective customers, clients, etc., and will not use such information for his\nown purpose or for the purpose of any person, firm, corporation or entity except the Company.\n3\n(b)\nUpon termination of his employment with the Company, the Employee shall deliver promptly\nto the Company all records, manuals, books, blank forms, documents, letters, memoranda, notes, notebooks,\nreports, data, tables, calculations or copies thereof that relate in any way to the business, products, practices or\ntechniques of the Company, and all other property trade secrets and confidential information of the Company,\nincluding, but not limited to, all documents that in whole or in part contain any trade secrets or confidential\ninformation of the Company, which in any of these cases are in his possession or under his control.\nSection 5. Covenant Not to Compete.\n(a)\nDuring the Restricted Period (as defined below), Employee will not (i) directly or indirectly\nengage in any business or activity which markets, sells or is developing products or services which compete\nwith the products or services marketed, sold or being developed by the Company at the time of such\ntermination (such business or activity being hereinafter sometimes called a “Competing Business”), in any\ncountry, state, territory, region or other geographic area, whether in the United States or otherwise, in which, at\nthe time the Employee becomes no longer employed by the Company, the Company transacts business or sells\nor markets its products or services, whether such engagement by the Employee shall be as an officer, principal,\nagent, director, owner, employee, partner, affiliate, consultant or other participant in any Competing Business,\nor (ii) assist others in engaging in any Competing Business in any manner described in the foregoing clause (i).\n(b)\nThe Employee understands that the foregoing restrictions may limit his ability to earn a\nlivelihood in a business competitive to the business of the Company, but he nevertheless believes that he has\nreceived and will receive sufficient consideration and other benefits in connection with the Company's issuance\nof certain stock and stock options to the Employee as well as other benefits to clearly justify such restrictions\nwhich, in any event (given his education, skills and ability), the Employee does not believe would prevent him\nfrom earning a living.\n(c)\n“Restricted Period” shall mean the period commencing on the date hereof and ending on the\nlast day of the twelfth (12th) full calendar month following the Employee's termination for any reason\nwhatsoever including but not limited to involuntary termination (with or without Cause) and/or voluntary\ntermination; provided that the Restricted Period shall be extended by any amount of time that the Employee has\nfailed to comply with his promises contained in this Section 5 of this Agreement.\nSection 6. Non Solicitation.\n(a)\nDuring the period commencing on the date hereof and ending on the last day of the twelfth\n(12th) full calendar month following the Employee's termination for any reason whatsoever including but not\nlimited to involuntary termination (with or\n4\nwithout Cause) and/or voluntary termination, Employee hereby covenants that he will not, directly or indirectly,\nsolicit, entice or induce any Customer or Supplier (as defined below) of the Company to (i) become a Customer\nor Supplier of any other person or entity engaged in any business activity that competes with any business\nconducted by the Company at any time during the period of Employee's employment with the Company, or any\nbusiness planned by the Company at any time during the period of Employee's employment with the Company\nor (ii) cease doing business with the Company, and Employee agrees that he will not assist any person or entity\nin taking any action described in the foregoing clauses (i) and (ii). For purposes of this Section 6, (A) a\n“Customer” of the Company means any person, corporation, partnership, trust, division, business unit,\ndepartment or agency which, at the time of termination or within one year prior thereto, shall be or shall have\nbeen a customer, distributor or agent of the Company or shall be or shall have been contacted by the Company\nfor the purpose of soliciting it to become a customer, distributor or agent of the Company; and (B) a “Supplier”\nof the Company means any person, corporation, partnership, trust, division, business unit, department or agency\nwhich, at the time of termination or within one year prior thereto, shall be or shall have been a supplier, vendor,\nmanufacturer or developer for any product or service or significant component used in any product or service of\nthe Company.\n(b)\nDuring the period commencing on the date hereof and ending on the last day of the twenty-\nfourth (24th) full calendar month following the Employee's termination for any reason whatsoever, including\nbut not limited to involuntary termination (with or without Cause) and/or voluntary termination, the Employee\nwill not, directly or indirectly, induce other employees of the Company to terminate their employment with the\nCompany or engage in any Competing Business.\nSection 7. Company Right to Inventions.\nThe Employee shall promptly disclose, grant and assign ownership to the Company for its sole use and\nbenefit any and all inventions, improvements, technical information and suggestions relating in any way to the\nbusiness of the Company (whether patentable or not), which he may develop, acquire, conceive or reduce to\npractice while employed by the Company (whether or not during usual working hours), together with all patent\napplications, letters patent, copyrights and reissues thereof that may at any time be granted for or upon any such\ninvention, improvement or technical information. In connection therewith:\n(a)\nThe Employee shall without charge, but at the expense of the Company, promptly at all times\nhereafter execute and deliver such applications, assignments, descriptions and other instruments as may be\nnecessary or proper in the opinion of the Company to vest title to any such inventions, improvements, technical\ninformation, patent applications, patents, copyrights or reissues thereof in the corporation and to enable it to\nobtain and maintain the entire right and title thereto throughout the world; and\n5\n(b)\nThe Employee shall render to the Company at its expense (including a reasonable payment for\nthe time involved in case he is not then in its employ) all such assistance as it may require in the prosecution of\napplications for said patents, copyrights or reissues thereof, in the prosecution or defense of interferences which\nmay be declared involving any said applications, patents or copyrights and in any litigation in which the\nCompany may be involved relating to any such patents, inventions, improvements or technical information.\nSection 8. Remedies; Survival.\n(a)\nThe Employee acknowledges and understands that the provisions of this Agreement are of a\nspecial and unique nature, the loss of which cannot be accurately compensated for in damages by an action at\nlaw, and that the breach or threatened breach of the provisions of this Agreement would cause the Company\nirreparable harm. In the event of a breach or threatened breach by the Employee of the provisions in Section 4,\nSection 5, Section 6, or Section 7 hereof, the Company shall be entitled to but not limited to injunctive relief\nrestraining him from such breach without posting any bond. Nothing herein contained shall be construed as\nprohibiting the Company from pursuing any other additional or alternative remedies available for any breach or\nthreatened breach of this Agreement, including but not limited to monetary damages.\n(b)\nNotwithstanding anything contained in the Agreement to the contrary, the provisions of\nSection 4, Section 5, Section 6, Section 7 and this Section 8, shall survive the expiration or other termination of\nthis Agreement or employment of the Employee by the Company until by their terms, such provisions are no\nlonger operative.\nSection 9. Other Agreements: Prohibition Against Use of Trade Secrets of Others.\n(a)\nEmployee represents and warrants to the Company that except for agreements set forth in\nExhibit A attached hereto, if any, he is not a party to any agreement or other arrangement with any other\ncorporation, partnership or entity relating to noncompetition with such entity or to non-disclosure of\nconfidential and proprietary information of such entity or to other matters similar to the matters set forth in this\nAgreement.\n(b)\nEmployee represents, warrants and agrees that he can and will perform his duties for the\nCompany without the unauthorized use of any confidential and/or proprietary information of others.\n6\nSection 10. General Provisions.\n(a)\nThis Agreement and any or all terms hereof may not be changed, waived, discharged, or\nterminated orally, but only by way of an instrument in writing executed by the Company and the Employee.\n(b)\nThis Agreement shall be governed by and construed in accordance with the laws of the State of\nNew Jersey without regard to legal principles pertaining to conflict of laws.\n(c)\nIt is the desire and intent of the parties hereto that the provisions of this Agreement shall be\nenforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in\nwhich enforcement is sought. Accordingly, to the extent that a restriction contained in this Agreement is more\nrestrictive than permitted by the laws of any jurisdiction where this Agreement may be subject to review and\ninterpretation, the terms of such restriction, for the purpose only of the operation of such restriction in such\njurisdiction, shall be the maximum restriction allowed by the laws of such jurisdiction and such restriction shall\nbe deemed to have been revised accordingly herein.\n(d)\nAny suit, action or proceeding arising out of or relating to this Agreement shall be brought\nonly in the Superior Court in the County of Mercer, New Jersey or the United States District Court for the\nDistrict of New Jersey, and Employee hereby agrees and consents to the personal and exclusive jurisdiction of\nsaid courts over him or her as to all suits, actions and proceedings arising out of or relating to this Agreement,\nand Employee further waives any claim that such suit, action or proceeding is brought in an improper or\ninconvenient forum.\n(e)\nIf any portion of this Agreement shall be found to be invalid or contrary to public policy, the\nsame may be modified or stricken by a Court of competent jurisdiction, to the extent necessary to allow the\nCourt to enforce such provision in a manner which is as consistent with the original intent of the provision as\npossible. The striking or modification by the Court of any provision shall not have the effect of invalidating the\nAgreement as a whole.\n(f)\nThis Agreement constitutes the entire and exclusive agreement between Employee and\nCompany pertaining to the subject matter thereof, and supersedes and replaces any and all earlier confidential\ninformation, invention and noncompetition agreements between Company and Employee and representations\nand understandings of the parties with respect thereto, without extinguishing whatsoever rights heretofore\nacquired by Company under any previous agreements.\n7\n(g)\nThe Company may assign any of its rights under this Agreement to any successor entity to the\nCompany, including, but not limited to, any entity formed by the Company to carry on the business of the\nCompany.\n[SIGNATURES APPEAR ON NEXT PAGE]\n8\nIN WITNESS WHEREOF, the Agreement has been executed as aforesaid.\nCOMPANY\nHEARTLAND PAYMENT SYSTEMS, INC.\nBy: /s/ Robert O. Carr\nName: Robert O. Carr\nTitle: Chief Executive Officer\nEMPLOYEE:\nBy: /s/ Michael A. Lawler\nName: Michael A. Lawler\n9\nEXHIBIT A\nOTHER AGREEMENTS\n[NONE]\n10	EX-10.9 6 hpyexhibit109michaellawler.htm CONFIDENTIALITY, NON-COMPETE AGREEMENT MICHAEL LAWLER\nEMPLOYEE CONFIDENTIAL INFORMATION\nAND\nNONCOMPETITION AGREEMENT\nThis Employee Confidential Information and Noncompetition Agreement is made and entered into on\nthis 13th day of July, 2012, by and between Michael A. Lawler, hereinafter “Employee,” and Heartland\nPayment Systems, Inc., a Delaware corporation (collectively with any and all current and future subsidiary\nand/or affiliate companies, the “Company”).\nWHEREAS, Employee has established an employment relationship with the Company and has\nreceived, and may continue to receive, certain benefits including stock grants and options; and\nWHEREAS, by reason of employment by the Company, Employee has received, and will continue to\nreceive, the value and advantage of confidential information and special training and skills, and the expert\nknowledge and experience of the contacts with other Company employees; and\nWHEREAS, the future granting of stock grants and options represents an advantage to Employee and\nwas conditioned upon Employee entering into this Agreement; and\nNOW THEREFORE, in exchange for good and valuable consideration, the sufficiency and receipt of\nwhich is hereby acknowledged, it is agreed as follows:\nSection 1.  Scope of Agreement.\n(a) This contract is not a contract of employment for any particular term. Employee's employment\nby the Company is at will, unless otherwise agreed by the Company and Employee in writing.\n(b) Severance policies and procedures are as set forth in the Employee Policy Manual of the\nCompany; provided, that in the event of a conflict between this Agreement and the Employee Policy Manual,\nthis Agreement shall govern.\nSection 2. Severance and Bonuses.\n(a) In consideration of the covenants by Employee contained below, in the event of a termination\nof Employee's employment by action of the Corngany other than for Cause or Dlsablhty, the Employee will\nreceive severance I?ay, in an amount equal to the base salary that would have been paid for a period of twelve\n(12) months payable in accordance with the Company's regular payroll practices, plus medical benefits for such\nperiod; provided, that the Employee shall not be eligible to receive such severance pay unless such termination\nof employment occurs after the ninetieth (90th) day of the Employee's employment by the Company. Medical\nbenefit continuation during such severance period shall be counted against the benefit continuation period\nrequired under COBRA.\n(b) In the event of a termination of Employee's employment by action of the Company other than\nfor Cause or in the event of termination of Employee's employment by death of Employee, the Employee shall\nalso be entitled to receive a pro rata portion (based on the number of days of Employee's employment during\nthe fiscal quarter in which the Employee's employment is terminated) of any bonus payment that would have\nbeen payable to him for that fiscal quarter if the Employee had been in the employ of the Company for the full\nfiscal quarter. If the Employee's compensation arrangement did not contemplate a bonus payable on a quarterly\nbasis, but instead contemplated a bonus paid on some longer fiscal period (such as a half-year or full year), then\nthe pro rata bonus shall be computed based on the number of days of Employee's employment during such\nlonger fiscal period in which the Employee's employment is terminated and the amount of the bonus payment\nthat would have been payable to him for such longer fiscal period. No bonus will be payable to the Employee\nwith respgct to any bonus period commencing after the bonus period in which the Employee's employment\nterminated.\n(© Cause. “Cause” means:\n(i) The Employee has breached the provisions of Section 4, Section 5, Section 6, or Section\n7 of this Agreement in any material respect;\n(ii) The Emplo?fee has been convicted of, or plead guilty or no contest to, (A) fraud,\nmisappropriation or embezzlement in connection with the Company's business, or (B) a felony, and has\nfailed to submit a resignation in accordance with Section 2(e) below; or\n(iii) The Employee has breached his or her duties hereunder or failed to perform his or her\nduties as an officer or employee of the Company, if such breach or failure has not been cured within\nthirty (30) days after receipt of written notice from the Company of such breach or failure.\nNotwithstanding the foregoing, the Employee shall not be deemed to have been terminated for Cause\npursuant to clause (i) above unless and until there shall have been delivered to the Employee (A) a notice of\ntermination and (B) a copy of a resolution duly adopted by the Board of Directors of the Company finding that,\nafter reasonable notice to the Employee and an opportunity to be heard, in the good faith opinion of the Board\nof Directors of the Company, the Employee has engaged in conduct constituting Cause for termination\nhereunder.\n(d) Disability. “Disability” means any mental or physical condition that renders the Employee\nunable to perform the essential functions of his position, with or without reasonable accommodation, for a\nperiod in excess of six (6) months.\n(e) If the Employee is ever convicted of, or pleads guilty or no contest to, any felony offense, then\nthe Employee shall immediately tender a resignation from each and every flosition the Employee then holds\nwith the Company (whether as officer, director, employee, consultant or otherwise).\nSection 3. Employees' Acknowledgments.\n(a) The Employee understands and acknowledges that because of the confidential and sensitive\nnature of the information to which the Employee will have access during the course of his employment with the\nCompany, any unauthorized use, disclosure or misappropriation of such information will cause irreparable\ndamage to the Company.\n(b) The Employee acknowledges that the Company has expended considerable resources to\ndevelop the confidential information and the relationships that the Company enjoys with its customers,\nsuppliers, employees, officers and other agents, and these assets of the Company are critical to the business of\nthe Company. The Employee agrees that the restrictions set forth below are necessary to prevent even the\ninadvertent disclosure of this confidential information or the interference with these relationships and to protect\nthe legitimate business interests of the Company and are reasonable in scope and content.\nSection 4. Protection of Information.\n(a) The Employee hereby covenants with Company that, throughout the term of his employment\nby the Company, Employee will serve Company's best interests loyally and diligently. Throughout the course of\nemployment by Company and thereafter, Employee will not disclose to any person, firm, corporation or entity\n(except when expressly authorized in writing by Company) any information relating to Company's business,\nincluding, without limitation, merchant application processing and credit underwriting software, merchant\ninformation systems, sales compensation and sales force automation software and systems, electronic payment\ntransaction processing software, fraud and risk analysis systems, human resources and time and attendance\ninformation systems and software, payroll services information systems and payroll application processing\nsoftware, sales policy documents, marketing communications materials, information relating to trade secrets,\nbusiness methods, products, processes, procedures, development or experimental projects, suppliers, customer\nlists or the needs O‘P customers or Prospective customers, clients, etc., and will not use such information for his\nown purpose or for the purpose of any person, firm, corporation or entity except the Company.\n(b) ]pon termination of his employment with the Company, the Employee shall deliver promptly\nto the Company all records, manuals, books, blank forms, documents, letters, memoranda, notes, notebooks,\nreports, data, tables, calculations or copies thereof that relate in any way to the business, products practices or\ntechniques of the Cornpany, and all other property trade secrets and confidential information of the Company,\nincluding, but not limited to, all documents that in whole or in part contain any trade secrets or confidential\ninformation of the Company, which in any of these cases are in his possession or under his control.\nSection 5. Covenant Not to Compete.\n(a) During the Restricted Period (as defined below), Employee will not (i) directly or indirectly\nengage in any business or activity which markets, sells or is developing products or services which compete\nwith the products or services marketed, sold or beinfg developed by the Company at the time of such\ntermination (such business or activity being hereinafter sometimes called a “Competing Business”), in any\ncountry, state, territory, region or other geographic area, whether in the United States or otherwise, in which, at\nthe time the Employee becomes no longer employed by the Company, the Company transacts business or sells\nor markets its products or services, whether such engagement by the Employee shafi be as an officer, principal,\nagent, director, owner, employee, partner, affiliate, consultant or other participant in any Competing Business,\nor (ii) assist others in engaging in any Competing Business in any manner described in the foregoing clause (i).\n(b) The Employee understands that the foregoing restrictions may limit his ability to earn a\nlivelihood in a business competitive to the business of the Company, but he nevertheless believes that he has\nreceived and will receive sufficient consideration and other benefits in connection with the Company's issuance\nof certain stock and stock o]Etlons to the Employee as well as other benefits to clearly justify such restrictions\nwhich, in any event (given his education, skills and ability), the Employee does not geheve would prevent him\nfrom earning a living.\n© “Restricted Period” shall mean the ]]Iaerlod commencing on the date hereof and ending on the\nlast day of the twelfth (12th) full calendar month following the Employee's termination for any reason\nwhatsoever including but not limited to involuntary termination (with or without Cause) and/or voluntary\ntermination; provided that the Restricted Period shall be extended by any amount of time that the Employee has\nfailed to comply with his promises contained in this Section 5 of this Agreement.\nSection 6. Non Solicitation.\n(a) During the period commencing on the date hereof and ending on the last day of the twelfth\n(12th) full calendar month following the Employee's termination for any reason whatsoever including but not\nlimited to involuntary termination (with or\nwithout Cause) and/or voluntary termination, Employee hereby covenants that he will not, directly or indirectly,\nsolicit, entice or induce any Customer or Supplier (as defined below) of the Company to (i) become a Customer\nor Supplier of any other person or entity engaged in any business activity that competes with any business\nconducted by the Company at any time during the period of Employee's employment with the Company, or any\nbusiness planned by the Company at any time during the period of Employee's employment with the Company\nor (ii) cease doing gusiness with the Company, and Employee agrees that he will not assist any person or entity\nin taking any action described in the foregoing clauses (i) and (ii). For purposes of this Section 6, (A) a\n“Customer” of the Company means any person, corporation, partnership, trust, division, business unit,\ndepartment or agency which, at the time of termination or within one year prior thereto, shall be or shall have\nbeen a customer, distributor or agent of the Company or shall be or shall have been contacted by the Company\nfor the purpose of soliciting it to become a customer, distributor or agent of the Company; and (B) a “Supplier”\nof the Company means any person, corporation, partnership, trust, division, business unit, department or agency\nwhich, at the time of termination or within one year prior thereto, shall be or shall have been a supplier, vendor,\nmanufacturer or developer for any product or service or significant component used in any product or service of\nthe Company.\n(b) During the period commencing on the date hereof and ending on the last day of the twenty-\nfourth (24th) full calendar month following the Employee's termination for any reason whatsoever, including\nbut not limited to involuntary termination (with or without Cause) and/or voluntary termination, the Employee\nwill not, directly or indirectly, induce other employees of the Company to terminate their employment with the\nCompany or engage in any Competing Business.\nSection 7. Company Right to Inventions.\nThe Employee shall promptly disclose, grant and assign ownership to the Company for its sole use and\nbenefit any and all inventions, improvements, technical information and suggestions relating in any way to the\nbusiness of the Company (whether patentable or not), which he may develop, acquire, conceive or reduce to\npractice while employed by the Company (whether or not during usual working hours), together with all patent\napplications, letters patent, copyrights and reissues thereof that may at any time be granted for or upon any such\ninvention, improvement or technical information. In connection therewith:\n(@) The Employee shall without charge, but at the expense of the Company, promptly at all times\nhereafter execute and deliver such applications, assignments, descriptions and other instruments as may be\nnecessary or proper in the opinion of the Company to vest title to any such inventions, improvements, technical\ninformation, patent ali:plications, atents, copyrights or reissues thereof in the corporation and to enable it to\nobtain and maintain the entire right and title thereto throughout the world; and\n(b) The Employee shall render to the Company at its expense (including a reasonable payment for\nthe time involved in case he is not then in its employ) all such assistance as it may require in the prosecution of\napplications for said patents, copyrights or reissues thereof, in the prosecution or defense of interferences which\nmay be declared involving any said applications, patents or copyrights and in any litigation in which the\nCompany may be involved re?fating to any such patents, inventions, improvements or technical information.\nSection 8. Remedies; Survival.\n(@) The Employee acknowledges and understands that the provisions of this Agreement are of a\nspecial and unique nature, the loss of which cannot be accurately compensated for in damages by an action at\nlaw, and that the breach or threatened breach of the provisions of this Agreement would cause the Company\nirreparable harm. In the event of a breach or threatened breach by the Employee of the provisions in Section 4,\nSection 5, Section 6, or Section 7 hereof, the Company shall be entitled to but not limited to injunctive relief\nrestraining him from such breach without posting any bond. Nothing herein contained shall be construed as\nprohibiting the Cornfpany from pursuing any other additional or alternative remedies available for any breach or\nthreatened breach of this Agreement, including but not limited to monetary damages.\n(b) Notwithstanding anything contained in the Agreement to the contrary, the provisions of\nSection 4, Section 5, Section 6, Section 7 and this Section 8, shall survive the expiration or other termination of\nthis Agreement or employment of the Employee by the Company until by their terms, such provisions are no\nlonger operative.\nSection 9. Other Agreements: Prohibition Against Use of Trade Secrets of Others.\na Employee represents and warrants to the Company that except for agreements set forth in\nExhibit A attached hereto, if any, he is not a party to any agreement or other arrangement with any other\ncorporation, partnership or entity relating to noncompetition with such entity or to non-disclosure of\nconfidential and proprietary information of such entity or to other matters similar to the matters set forth in this\nAgreement.\n(b) Employee represents, warrants and agrees that he can and will perform his duties for the\nCompany without the unauthorized use of any confidential and/or proprietary information of others.\nSection 10. General Provisions.\n(@) This Agreement and any or all terms hereof may not be changed, waived, discharged, or\nterminated orally, but only by way of an instrument in writing executed by the Company and the Employee.\n(b) This Agreement shall be governed by and construed in accordance with the laws of the State of\nNew Jersey without regard to legal principles pertaining to conflict of laws.\n© It is the desire and intent of the parties hereto that the provisions of this Agreement shall be\nenforced to the fullest extent permissible under the laws and public pollfcies applied in each jurisdiction in\nwhich enforcement is sou%ht. Accordingly, to the extent that a restriction contained in this Agreement is more\nrestrictive than Eermitted y the laws of any jurisdiction where this Agreement may be subject to review and\ninterpretation, the terms of such restriction, for the purpose only of the operation of such restriction in such\njurisdiction, shall be the maximum restriction allowed by the laws of such jurisdiction and such restriction shall\ne deemed to have been revised accordingly herein.\n(d) Any suit, action or proceeding arising out of or relating to this Agreement shall be brought\nonly in the Superior Court in the County of Mercer, New Jersey or the United States District Court for the\nDistrict of New Jersey, and Employee hereby agrees and consents to the personal and exclusive jurisdiction of\nsaid courts over him or her as to afifsuits, actions and proceedings arising out of or relating to this Agreement,\nand Employee further waives any claim that such suit, action or proceeding is brought in an improper or\ninconvenient forum.\n(e) If any portion of this Agreement shall be found to be invalid or contrary to public policy, the\nsame may be modified or stricken by a Court of competent jurisdiction, to the extent necessary to allow the\nCourt to enforce such provision in a manner which is as consistent with the original intent of the provision as\npossible. The striking or modification by the Court of any provision shall not have the effect of invalidating the\nAgreement as a whole.\n® This Agreement constitutes the entire and exclusive agreement between Employee and\nCompany pertaining to the subject matter thereof, and supersedes and replaces any and all earlier confidential\ninformation, invention and noncompetition agreements between Company and Employee and representations\nand understandings of the parties with respect thereto, without extinguishing whatsoever rights heretofore\nacquired by Company under any previous agreements.\n() The Company may assign any of its rights under this Agreement to any successor entity to the\nCompany, including, but not limited to, any entity formed by the Company to carry on the business of the\nCompany.\n[SIGNATURES APPEAR ON NEXT PAGE]\nIN WITNESS WHEREOQF, the Agreement has been executed as aforesaid.\nCOMPANY\nHEARTLAND PAYMENT SYSTEMS, INC.\nBy: /s/ Robert O. Carr\nName: Robert O. Carr\nTitle: Chief Executive Officer\nEMPLOYEE:\nBy: /s/ Michael A. Lawler\nName: Michael A. Lawler\n9\nEXHIBIT A\nOTHER AGREEMENTS\n[NONE]\n10	EX-10.9 6 pyexhibit109michaellawler.htm CONFIDENTIALITY, NON-COMPETE AGREEMENT MICHAEL LAWLER\nEMPLOYEE CONFIDENTIAL INFORMATION\nAND\nNONCOMPETITION AGREEMENT\nThis Employee Confidential Information and Noncompetition Agreement is made and entered into on\nthis 13th day of July, 2012, by and between Michael A. Lawler, hereinafter "Employee," and Heartland\nPayment Systems, Inc., a Delaware corporation (collectively with any and all current and future subsidiary\nand/or affiliate companies, the "Company").\nWHEREAS, Employee has established an employment relationship with the Company and has\nreceived, and may continue to receive, certain benefits including stock grants and options; and\nWHEREAS, by reason of employment by the Company, Employee has received, and will continue to\nreceive, the value and advantage of confidential information and special training and skills, and the expert\nknowledge and experience of the contacts with other Company employees; and\nWHEREAS, the future granting of stock grants and options represents an advantage to Employee and\nwas conditioned upon Employee entering into this Agreement; and\nNOW THEREFORE, in exchange for good and valuable consideration, the sufficiency and receipt of\nwhich is hereby acknowledged, it is agreed as follows:\nSection 1.\nScope of Agreement.\n(a)\nThis contract is not a contract of employment for any particular term. Employee's employment\nby the Company is at will, unless otherwise agreed by the Company and Employee in writing.\n(b)\nSeverance policies and procedures are as set forth in the Employee Policy Manual of the\nCompany; provided, that in the event of a conflict between this Agreement and the Employee Policy Manual,\nthis Agreement shall govern.\nSection 2.\nSeverance and Bonuses.\n(a)\nIn consideration of the covenants by Employee contained below, in the event of a termination\nof Employee's employment by action of the Company other than for Cause or Disability, the Employee will\nreceive severance pay, in an amount equal to the base salary that would have been paid for a period of twelve\n(12) months payable in accordance with the Company's regular payroll practices, plus medical benefits for such\n1\nperiod; provided, that the Employee shall not be eligible to receive such severance pay unless such termination\nof employment occurs after the ninetieth (90th) day of the Employee's employment by the Company. Medical\nbenefit continuation during such severance period shall be counted against the benefit continuation period\nrequired under COBRA.\n(b)\nIn the event of a termination of Employee's employment by action of the Company other than\nfor Cause or in the event of termination of Employee's employment by death of Employee, the Employee shall\nalso be entitled to receive a pro rata portion (based on the number of days of Employee's employment during\nthe fiscal quarter in which the Employee's employment is terminated) of any bonus payment that would have\nbeen payable to him for that fiscal quarter if the Employee had been in the employ of the Company for the full\nfiscal basis, quarter. but instead If the contemplated Employee's a compensation bonus paid on arrangement some longer did fiscal not period contemplate (such as a bonus a half-year payable or full on a year), quarterly then\nthe pro rata bonus shall be computed based on the number of days of Employee's employment during such\nlonger fiscal period in which the Employee's employment is terminated and the amount of the bonus payment\nthat would have been payable to him for such longer fiscal period. No bonus will be payable to the Employee\nwith respect to any bonus period commencing after the bonus period in which the Employee's employment\nterminated.\n(c)\nCause. "Cause" means:\n(i)\nThe Employee has breached the provisions of Section 4, Section 5, Section 6, or Section\n7 of this Agreement in any material respect;\n(ii)\nThe Employee has been convicted of, or plead guilty or no contest to, (A) fraud,\nmisappropriation or embezzlement in connection with the Company's business, or (B) a felony, and has\nfailed to submit a resignation in accordance with Section 2(e) below; or\n(iii)\nThe Employee has breached his or her duties hereunder or failed to perform his or her\nduties as an officer or employee of the Company, if such breach or failure has not been cured within\nthirty (30) days after receipt of written notice from the Company of such breach or failure.\nNotwithstanding the foregoing, the Employee shall not be deemed to have been terminated for Cause\npursuant to clause (i) above unless and until there shall have been delivered to the Employee (A) a notice of\ntermination and (B) a copy of a resolution duly adopted by the Board of Directors of the Company finding that,\nafter reasonable notice to the Employee and an opportunity to be heard, in the good faith opinion of the Board\nof Directors of the Company, the Employee has engaged in conduct constituting Cause for termination\nhereunder.\n2\n(d)\nDisability. "Disability" means any mental or physical condition that renders the Employee\nunable to perform the essential functions of his position, with or without reasonable accommodation, for a\nperiod in excess of six (6) months.\n(e)\nIf the Employee is ever convicted of, or pleads guilty or no contest to, any felony offense, then\nthe Employee shall immediately tender a resignation from each and every position the Employee then holds\nwith the Company (whether as officer, director, employee, consultant or otherwise).\nSection 3.\nEmployees' Acknowledgments.\n(a)\nThe Employee understands and acknowledges that because of the confidential and sensitive\nnature of the information to which the Employee will have access during the course of his employment with the\nCompany, any unauthorized use, disclosure or misappropriation of such information will cause irreparable\ndamage to the Company.\n(b)\nThe Employee acknowledges that the Company has expended considerable resources to\ndevelop the confidential information and the relationships that the Company enjoys with its customers,\nsuppliers, employees, officers and other agents, and these assets of the Company are critical to the business of\nthe Company. The Employee agrees that the restrictions set forth below are necessary to prevent even the\ninadvertent disclosure of this confidential information or the interference with these relationships and to protect\nthe legitimate business interests of the Company and are reasonable in scope and content.\nSection 4.\nProtection of Information.\n(a)\nThe Employee hereby covenants with Company that, throughout the term of his employment\nby the Company, Employee will serve Company's best interests loyally and diligently. Throughout the course of\nemployment\nby Company and thereafter, Employee will not disclose to any person, firm, corporation or entity\n(except when expressly authorized in writing by Company) any information relating to Company's business,\nincluding, without limitation, merchant application processing and credit underwriting software, merchant\ninformation\nsystems,\nsales\ncompensation\nand\nsales\nforce\nautomation\nsoftware\nand\nsystems,\nelectronic\npayment\ntransaction processing software, fraud and risk analysis systems, human resources and time and attendance\ninformation systems and software, payroll services information systems and payroll application processing\nsoftware, sales policy documents, marketing communications materials, information relating to trade secrets,\nbusiness methods, products, processes, procedures, development or experimental projects, suppliers, customer\nlists or the needs of customers or prospective customers, clients, etc., and will not use such information for his\nown purpose or for the purpose of any person, firm, corporation or entity except the Company.\n3\n(b)\nUpon termination of his employment with the Company, the Employee shall deliver promptly\nto the Company alf records, manuals, books, blank forms, documents, letters, memoranda, notes, notebooks,\nreports, data, tables, calculations or copies thereof that relate in any way to the business, products, practices or\ntechniques of the Company, and all other property trade secrets and confidential information of the Company,\nincluding, but not limited to, all documents that in whole or in part contain any trade secrets or confidential\ninformation of the Company, which in any of these cases are in his possession or under his control.\nSection 5.\nCovenant Not to Compete.\n(a)\nDuring the Restricted Period (as defined below), Employee will not (i) directly or indirectly\nengage in any business or activity which markets, sells or is developing products or services which compete\nwith the products or services marketed, sold or being developed by the Company at the time of such\ntermination (such business or activity being hereinafter sometimes called a "Competing Business"), in any\ncountry, state, territory, region or other geographic area, whether in the United States or otherwise, in which, at\nthe time the Employee becomes no longer employed by the Company, the Company transacts business or sells\nor markets its products or services, whether such engagement by the Employee shall be as an officer, principal,\nagent, or (ii) assist director, others owner, in engaging employee, in partner, any Competing affiliate, Business consultant in or any other manner participant described in any in the Competing foregoing Business, clause (i).\n(b) The Employee understands that the foregoing restrictions may limit his ability to earn a\nlivelihood in a business competitive to the business of the Company, but he nevertheless believes that he has\nreceived and will receive sufficient consideration and other benefits in connection with the Company's issuance\nof certain stock and stock options to the Employee as well as other benefits to clearly justify such restrictions\nwhich, in any event (given his education, skills and ability), the Employee does not believe would prevent him\nfrom earning a living.\n(c)\n"Restricted Period" shall mean the period commencing on the date hereof and ending on\nthe\nlast day of the twelfth (12th) full calendar month following the Employee's termination for any reason\nwhatsoever including but not limited to involuntary termination (with or without Cause) and/or voluntary\ntermination; provided that the Restricted Period shall be extended by any amount of time that the Employee has\nfailed to comply with his promises contained in this Section 5 of this Agreement.\nSection 6.\nNon Solicitation.\n(a)\nDuring the period commencing on the date hereof and ending on the last day of the twelfth\n(12th) full calendar month following the Employee's termination for any reason whatsoever including but not\nlimited to involuntary termination (with or\n4\nwithout Cause) and/or voluntary termination, Employee hereby covenants that he will not, directly or indirectly,\nsolicit, entice or induce any Customer or Supplier (as defined below) of the Company to (i) become a Customer\nor Supplier of any other person or entity engaged in any business activity that competes with any business\nconducted by the Company at any time during the period of Employee's employment with the Company, or any\nbusiness planned by the Company at any time during the period of Employee's employment with the Company\nor (ii) cease doing business with the Company, and Employee agrees that he will not assist any person or entity\nin\ntaking\nany\naction\ndescribed\nin\nthe\nforegoing\nclauses\n(i)\nand\n(ii).\nFor\npurposes\nof\nthis\nSection\n6,\n(A)\na\n"Customer" of the Company means any person, corporation, partnership, trust, division, business unit,\ndepartment or agency which, at the time of termination or within one year prior thereto, shall be or shall have\nbeen a customer, distributor or agent of the Company or shall be or shall have been contacted by the Company\nfor of the the Company purpose of means soliciting any person, it to become corporation, a customer, partnership, distributor trust, or division, agent of the business Company; unit, department and (B) a "Supplier" or agency\nwhich, at the time of termination or within one year prior thereto, shall be or shall have been a supplier, vendor,\nmanufacturer or developer for any product or service or significant component used in any product or service of\nthe Company.\n(b)\nDuring the period commencing on the date hereof and ending on the last day of the twenty-\nfourth (24th) full calendar month following the Employee's termination for any reason whatsoever, including\nbut not limited to involuntary termination (with or without Cause) and/or voluntary termination, the Employee\nwill not, directly or indirectly, induce other employees of the Company to terminate their employment with the\nCompany or engage in any Competing Business.\nSection 7. Company Right to Inventions.\nThe Employee shall promptly disclose, grant and assign ownership to the Company for its sole use and\nbenefit any and all inventions, improvements, technical information and suggestions relating in any way to the\nbusiness of the Company (whether patentable or not), which he may develop, acquire, conceive or reduce to\npractice while employed by the Company (whether or not during usual working hours), together with all patent\napplications, letters patent, copyrights and reissues thereof that may at any time be granted for or upon any such\ninvention, improvement or technical information. In connection therewith:\n(a)\nThe Employee shall without charge, but at the expense of the Company, promptly at all times\nhereafter execute and deliver such applications, assignments, descriptions and other instruments as may be\nnecessary or proper in the opinion of the Company to vest title to any such inventions, improvements, technical\ninformation, patent applications, patents, copyrights or reissues thereof in the corporation and to enable it to\nobtain and maintain the entire right and title thereto throughout the world; and\n5\n(b)\nThe Employee shall render to the Company at its expense (including a reasonable payment for\nthe time involved in case he is not then in its employ) all such assistance as it may require in the prosecution of\napplications for said patents, copyrights or reissues thereof, in the prosecution or defense of interferences which\nmay be declared involving any said applications, patents or copyrights and in any litigation in which the\nCompany may be involved relating to any such patents, inventions, improvements or technical information.\nSection 8.\nRemedies; Survival.\n(a)\nThe Employee acknowledges and understands that the provisions of this Agreement are of a\nspecial\nand\nunique\nnature,\nthe\nloss\nof\nwhich\ncannot\nbe\naccurately\ncompensated\nfor\nin\ndamages\nby\nan\naction\nat\nlaw, and that the breach or threatened breach of the provisions of this Agreement would cause the Company\nirreparable harm. In the event of a breach or threatened breach by the Employee of the provisions in Section 4,\nSection 5, Section 6, or Section 7 hereof, the Company shall be entitled to but not limited to injunctive relief\nrestraining him from such breach without posting any bond. Nothing herein contained shall be construed as\nprohibiting the Company from pursuing any other additional or alternative remedies available for any breach or\nthreatened breach of this Agreement, including but not limited to monetary damages.\n(b)\nNotwithstanding anything contained in the Agreement to the contrary, the provisions of\nSection 4, Section 5, Section 6, Section 7 and this Section 8, shall survive the expiration or other termination of\nthis Agreement or employment of the Employee by the Company until by their terms, such provisions are no\nlonger operative.\nSection 9.\nOther Agreements: Prohibition Against Use of Trade Secrets of Others.\n(a)\nEmployee represents and warrants to the Company that except for agreements set forth in\nExhibit A attached hereto, if any, he is not a party to any agreement or other arrangement with any other\ncorporation, partnership or entity relating to noncompetition with such entity or to non-disclosure of\nconfidential and proprietary information of such entity or to other matters similar to the matters set forth in this\nAgreement.\n(b)\nEmployee represents, warrants and agrees that he can and will perform his duties for the\nCompany without the unauthorized use of any confidential and/or proprietary information of others.\n6\nSection 10. General Provisions.\n(a)\nThis Agreement and any or all terms hereof may not be changed, waived, discharged, or\nterminated orally, but only by way of an instrument in writing executed by the Company and the Employee.\n(b)\nThis Agreement shall be governed by and construed in accordance with the laws of the State of\nNew Jersey without regard to legal principles pertaining to conflict of laws.\n(c)\nIt is the desire and intent of the parties hereto that the provisions of this Agreement shall be\nenforced\nto\nthe\nfullest\nextent\npermissible\nunder\nthe\nlaws\nand\npublic\npolicies\napplied\nin\neach\njurisdiction\nin\nwhich enforcement is sought. Accordingly, to the extent that a restriction contained in this Agreement is more\nrestrictive than permitted by the laws of any jurisdiction where this Agreement may be subject to review and\ninterpretation, the terms of such restriction, for the purpose only of the operation of such restriction in such\njurisdiction, shall be the maximum restriction allowed by the laws of such jurisdiction and such restriction shall\nbe deemed to have been revised accordingly herein.\n(d)\nAny suit, action or proceeding arising out of or relating to this Agreement shall be brought\nonly in the Superior Court in the County of Mercer, New Jersey or the United States District Court for the\nDistrict of New Jersey, and Employee hereby agrees and consents to the personal and exclusive jurisdiction of\nsaid courts over him or her as to all suits, actions and proceedings arising out of or relating to this Agreement,\nand Employee further waives any claim that such suit, action or proceeding is brought in an improper or\ninconvenient forum.\n(e)\nIf any portion of this Agreement shall be found to be invalid or contrary to public policy, the\nsame may be modified or stricken by a Court of competent jurisdiction, to the extent necessary to allow the\nCourt to enforce such provision in a manner which is as consistent with the original intent of the provision as\npossible. The striking or modification by the Court of any provision shall not have the effect of invalidating the\nAgreement as a whole.\n(f)\nThis Agreement constitutes the entire and exclusive agreement between Employee and\nCompany pertaining to the subject matter thereof, and supersedes and replaces any and all earlier confidential\ninformation, invention and noncompetition agreements between Company and Employee and representations\nand understandings of the parties with respect thereto, without extinguishing whatsoever rights heretofore\nacquired by Company under any previous agreements.\n7\n(g)\nThe Company may assign any of its rights under this Agreement to any successor entity to the\nCompany, including, but not limited to, any entity formed by the Company to carry on the business of the\nCompany.\n[SIGNATURES APPEAR ON NEXT PAGE]\n8\nIN WITNESS WHEREOF, the Agreement has been executed as aforesaid.\nCOMPANY\nHEARTLAND PAYMENT SYSTEMS, INC.\nBy:\n/s/ Robert O. Carr\nName: Robert O. Carr\nTitle: Chief Executive Officer\nEMPLOYEE:\nBy: /s/ Michael A. Lawler\nName: Michael A. Lawler\n9\nEXHIBIT A\nOTHER AGREEMENTS\n[NONE]\n10	EX-10 .9 6 hpyexhibit109michaellawler.htm CONFIDENTIALITY, NON-COMPETE AGREEMENT MICHAEL LAWLER\nEMPLOYEE CONFIDENTIAL INFORMATION\nAND\nNONCOMPETITION AGREEMENT\nThis Employee Confidential Information and Noncompetition Agreement is made and entered into on\nthis 13th day of July, 2012, by and between Michael A. Lawler, hereinafter “Employee,” and Heartland\nPayment Systems, Inc., a Delaware corporation (collectively with any and all current and future subsidiary\nand/or affiliate companies, the “Company”).\nWHEREAS, Employee has established an employment relationship with the Company and has\nreceived, and may continue to receive, certain benefits including stock grants and options; and\nWHEREAS, by reason of employment by the Company, Employee has received, and will continue to\nreceive, the value and advantage of confidential information and special training and skills, and the expert\nknowledge and experience of the contacts with other Company employees; and\nWHEREAS, the future granting of stock grants and options represents an advantage to Employee and\nwas conditioned upon Employee entering into this Agreement; and\nNOW THEREFORE, in exchange for good and valuable consideration, the sufficiency and receipt of\nwhich is hereby acknowledged, it is agreed as follows:\nSection 1. Scope of Agreement.\n(a)\nThis contract is not a contract of employment for any particular term. Employee's employment\nby the Company is at will, unless otherwise agreed by the Company and Employee in writing.\n(b)\nSeverance policies and procedures are as set forth in the Employee Policy Manual of the\nCompany; provided, that in the event of a conflict between this Agreement and the Employee Policy Manual,\nthis Agreement shall govern.\nSection 2. Severance and Bonuses.\n(a)\nIn consideration of the covenants by Employee contained below, in the event of a termination\nof Employee's employment by action of the Company other than for Cause or Disability, the Employee will\nreceive severance pay, in an amount equal to the base salary that would have been paid for a period of twelve\n(12) months payable in accordance with the Company's regular payroll practices, plus medical benefits for such\n1\nperiod; provided, that the Employee shall not be eligible to receive such severance pay unless such termination\nof employment occurs after the ninetieth (90th) day of the Employee's employment by the Company. Medical\nbenefit continuation during such severance period shall be counted against the benefit continuation period\nrequired under COBRA.\n(b)\nIn the event of a termination of Employee's employment by action of the Company other than\nfor Cause or in the event of termination of Employee's employment by death of Employee, the Employee shall\nalso be entitled to receive a pro rata portion (based on the number of days of Employee's employment during\nthe fiscal quarter in which the Employee's employment is terminated) of any bonus payment that would have\nbeen payable to him for that fiscal quarter if the Employee had been in the employ of the Company for the full\nfiscal quarter. If the Employee's compensation arrangement did not contemplate a bonus payable on a quarterly\nbasis, but instead contemplated a bonus paid on some longer fiscal period (such as a half-year or full year), then\nthe pro rata bonus shall be computed based on the number of days of Employee's employment during such\nlonger fiscal period in which the Employee's employment is terminated and the amount of the bonus payment\nthat would have been payable to him for such longer fiscal period. No bonus will be payable to the Employee\nwith respect to any bonus period commencing after the bonus period in which the Employee's employment\nterminated.\n(c)\nCause. “Cause” means:\n(i)\nThe Employee has breached the provisions of Section 4, Section 5, Section 6, or Section\n7 of this Agreement in any material respect;\n(ii)\nThe Employee has been convicted of, or plead guilty or no contest to, (A) fraud,\nmisappropriation or embezzlement in connection with the Company's business, or (B) a felony, and has\nfailed to submit a resignation in accordance with Section 2(e) below; or\n(iii)\nThe Employee has breached his or her duties hereunder or failed to perform his or her\nduties as an officer or employee of the Company, if such breach or failure has not been cured within\nthirty (30) days after receipt of written notice from the Company of such breach or failure.\nNotwithstanding the foregoing, the Employee shall not be deemed to have been terminated for Cause\npursuant to clause (i) above unless and until there shall have been delivered to the Employee (A) a notice of\ntermination and (B) a copy of a resolution duly adopted by the Board of Directors of the Company finding that,\nafter reasonable notice to the Employee and an opportunity to be heard, in the good faith opinion of the Board\nof Directors of the Company, the Employee has engaged in conduct constituting Cause for termination\nhereunder.\n2\n(d)\nDisability. “Disability” means any mental or physical condition that renders the Employee\nunable to perform the essential functions of his position, with or without reasonable accommodation, for a\nperiod in excess of six (6) months.\n(e)\nIf the Employee is ever convicted of, or pleads guilty or no contest to, any felony offense, then\nthe Employee shall immediately tender a resignation from each and every position the Employee then holds\nwith the Company (whether as officer, director, employee, consultant or otherwise).\nSection 3. Employees' Acknowledgments.\n(a)\nThe Employee understands and acknowledges that because of the confidential and sensitive\nnature of the information to which the Employee will have access during the course of his employment with the\nCompany, any unauthorized use, disclosure or misappropriation of such information will cause irreparable\ndamage to the Company.\n(b)\nThe Employee acknowledges that the Company has expended considerable resources to\ndevelop the confidential information and the relationships that the Company enjoys with its customers,\nsuppliers, employees, officers and other agents, and these assets of the Company are critical to the business of\nthe Company. The Employee agrees that the restrictions set forth below are necessary to prevent even the\ninadvertent disclosure of this confidential information or the interference with these relationships and to protect\nthe legitimate business interests of the Company and are reasonable in scope and content.\nSection 4. Protection of Information.\n(a)\nThe Employee hereby covenants with Company that, throughout the term of his employment\nby the Company, Employee will serve Company's best interests loyally and diligently. Throughout the course of\nemployment by Company and thereafter, Employee will not disclose to any person, firm, corporation or entity\n(except when expressly authorized in writing by Company) any information relating to Company's business,\nincluding, without limitation, merchant application processing and credit underwriting software, merchant\ninformation systems, sales compensation and sales force automation software and systems, electronic payment\ntransaction processing software, fraud and risk analysis systems, human resources and time and attendance\ninformation systems and software, payroll services information systems and payroll application processing\nsoftware, sales policy documents, marketing communications materials, information relating to trade secrets,\nbusiness methods, products, processes, procedures, development or experimental projects, suppliers, customer\nlists or the needs of customers or prospective customers, clients, etc., and will not use such information for his\nown purpose or for the purpose of any person, firm, corporation or entity except the Company.\n3\n(b)\nUpon termination of his employment with the Company, the Employee shall deliver promptly\nto the Company all records, manuals, books, blank forms, documents, letters, memoranda, notes, notebooks,\nreports, data, tables, calculations or copies thereof that relate in any way to the business, products, practices or\ntechniques of the Company, and all other property trade secrets and confidential information of the Company,\nincluding, but not limited to, all documents that in whole or in part contain any trade secrets or confidential\ninformation of the Company, which in any of these cases are in his possession or under his control.\nSection 5. Covenant Not to Compete.\n(a)\nDuring the Restricted Period (as defined below), Employee will not (i) directly or indirectly\nengage in any business or activity which markets, sells or is developing products or services which compete\nwith the products or services marketed, sold or being developed by the Company at the time of such\ntermination (such business or activity being hereinafter sometimes called a “Competing Business”), in any\ncountry, state, territory, region or other geographic area, whether in the United States or otherwise, in which, at\nthe time the Employee becomes no longer employed by the Company, the Company transacts business or sells\nor markets its products or services, whether such engagement by the Employee shall be as an officer, principal,\nagent, director, owner, employee, partner, affiliate, consultant or other participant in any Competing Business,\nor (ii) assist others in engaging in any Competing Business in any manner described in the foregoing clause (i).\n(b)\nThe Employee understands that the foregoing restrictions may limit his ability to earn a\nlivelihood in a business competitive to the business of the Company, but he nevertheless believes that he has\nreceived and will receive sufficient consideration and other benefits in connection with the Company's issuance\nof certain stock and stock options to the Employee as well as other benefits to clearly justify such restrictions\nwhich, in any event (given his education, skills and ability), the Employee does not believe would prevent him\nfrom earning a living.\n(c)\n“Restricted Period” shall mean the period commencing on the date hereof and ending on the\nlast day of the twelfth (12th) full calendar month following the Employee's termination for any reason\nwhatsoever including but not limited to involuntary termination (with or without Cause) and/or voluntary\ntermination; provided that the Restricted Period shall be extended by any amount of time that the Employee has\nfailed to comply with his promises contained in this Section 5 of this Agreement.\nSection 6. Non Solicitation.\n(a)\nDuring the period commencing on the date hereof and ending on the last day of the twelfth\n(12th) full calendar month following the Employee's termination for any reason whatsoever including but not\nlimited to involuntary termination (with or\n4\nwithout Cause) and/or voluntary termination, Employee hereby covenants that he will not, directly or indirectly,\nsolicit, entice or induce any Customer or Supplier (as defined below) of the Company to (i) become a Customer\nor Supplier of any other person or entity engaged in any business activity that competes with any business\nconducted by the Company at any time during the period of Employee's employment with the Company, or any\nbusiness planned by the Company at any time during the period of Employee's employment with the Company\nor (ii) cease doing business with the Company, and Employee agrees that he will not assist any person or entity\nin taking any action described in the foregoing clauses (i) and (ii). For purposes of this Section 6, (A) a\n“Customer” of the Company means any person, corporation, partnership, trust, division, business unit,\ndepartment or agency which, at the time of termination or within one year prior thereto, shall be or shall have\nbeen a customer, distributor or agent of the Company or shall be or shall have been contacted by the Company\nfor the purpose of soliciting it to become a customer, distributor or agent of the Company; and (B) a “Supplier”\nof the Company means any person, corporation, partnership, trust, division, business unit, department or agency\nwhich, at the time of termination or within one year prior thereto, shall be or shall have been a supplier, vendor,\nmanufacturer or developer for any product or service or significant component used in any product or service of\nthe Company.\n(b)\nDuring the period commencing on the date hereof and ending on the last day of the twenty-\nfourth (24th) full calendar month following the Employee's termination for any reason whatsoever, including\nbut not limited to involuntary termination (with or without Cause) and/or voluntary termination, the Employee\nwill not, directly or indirectly, induce other employees of the Company to terminate their employment with the\nCompany or engage in any Competing Business.\nSection 7. Company Right to Inventions.\nThe Employee shall promptly disclose, grant and assign ownership to the Company for its sole use and\nbenefit any and all inventions, improvements, technical information and suggestions relating in any way to the\nbusiness of the Company (whether patentable or not), which he may develop, acquire, conceive or reduce to\npractice while employed by the Company (whether or not during usual working hours), together with all patent\napplications, letters patent, copyrights and reissues thereof that may at any time be granted for or upon any such\ninvention, improvement or technical information. In connection therewith:\n(a)\nThe Employee shall without charge, but at the expense of the Company, promptly at all times\nhereafter execute and deliver such applications, assignments, descriptions and other instruments as may be\nnecessary or proper in the opinion of the Company to vest title to any such inventions, improvements, technical\ninformation, patent applications, patents, copyrights or reissues thereof in the corporation and to enable it to\nobtain and maintain the entire right and title thereto throughout the world; and\n5\n(b)\nThe Employee shall render to the Company at its expense (including a reasonable payment for\nthe time involved in case he is not then in its employ) all such assistance as it may require in the prosecution of\napplications for said patents, copyrights or reissues thereof, in the prosecution or defense of interferences which\nmay be declared involving any said applications, patents or copyrights and in any litigation in which the\nCompany may be involved relating to any such patents, inventions, improvements or technical information.\nSection 8. Remedies; Survival.\n(a)\nThe Employee acknowledges and understands that the provisions of this Agreement are of a\nspecial and unique nature, the loss of which cannot be accurately compensated for in damages by an action at\nlaw, and that the breach or threatened breach of the provisions of this Agreement would cause the Company\nirreparable harm. In the event of a breach or threatened breach by the Employee of the provisions in Section 4,\nSection 5, Section 6, or Section 7 hereof, the Company shall be entitled to but not limited to injunctive relief\nrestraining him from such breach without posting any bond. Nothing herein contained shall be construed as\nprohibiting the Company from pursuing any other additional or alternative remedies available for any breach or\nthreatened breach of this Agreement, including but not limited to monetary damages.\n(b)\nNotwithstanding anything contained in the Agreement to the contrary, the provisions of\nSection 4, Section 5, Section 6, Section 7 and this Section 8, shall survive the expiration or other termination of\nthis Agreement or employment of the Employee by the Company until by their terms, such provisions are no\nlonger operative.\nSection 9. Other Agreements: Prohibition Against Use of Trade Secrets of Others.\n(a)\nEmployee represents and warrants to the Company that except for agreements set forth in\nExhibit A attached hereto, if any, he is not a party to any agreement or other arrangement with any other\ncorporation, partnership or entity relating to noncompetition with such entity or to non-disclosure of\nconfidential and proprietary information of such entity or to other matters similar to the matters set forth in this\nAgreement.\n(b)\nEmployee represents, warrants and agrees that he can and will perform his duties for the\nCompany without the unauthorized use of any confidential and/or proprietary information of others.\n6\nSection 10. General Provisions.\n(a)\nThis Agreement and any or all terms hereof may not be changed, waived, discharged, or\nterminated orally, but only by way of an instrument in writing executed by the Company and the Employee.\n(b)\nThis Agreement shall be governed by and construed in accordance with the laws of the State of\nNew Jersey without regard to legal principles pertaining to conflict of laws.\n(c)\nIt is the desire and intent of the parties hereto that the provisions of this Agreement shall be\nenforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in\nwhich enforcement is sought. Accordingly, to the extent that a restriction contained in this Agreement is more\nrestrictive than permitted by the laws of any jurisdiction where this Agreement may be subject to review and\ninterpretation, the terms of such restriction, for the purpose only of the operation of such restriction in such\njurisdiction, shall be the maximum restriction allowed by the laws of such jurisdiction and such restriction shall\nbe deemed to have been revised accordingly herein.\n(d)\nAny suit, action or proceeding arising out of or relating to this Agreement shall be brought\nonly in the Superior Court in the County of Mercer, New Jersey or the United States District Court for the\nDistrict of New Jersey, and Employee hereby agrees and consents to the personal and exclusive jurisdiction of\nsaid courts over him or her as to all suits, actions and proceedings arising out of or relating to this Agreement,\nand Employee further waives any claim that such suit, action or proceeding is brought in an improper or\ninconvenient forum.\n(e)\nIf any portion of this Agreement shall be found to be invalid or contrary to public policy, the\nsame may be modified or stricken by a Court of competent jurisdiction, to the extent necessary to allow the\nCourt to enforce such provision in a manner which is as consistent with the original intent of the provision as\npossible. The striking or modification by the Court of any provision shall not have the effect of invalidating the\nAgreement as a whole.\n(f)\nThis Agreement constitutes the entire and exclusive agreement between Employee and\nCompany pertaining to the subject matter thereof, and supersedes and replaces any and all earlier confidential\ninformation, invention and noncompetition agreements between Company and Employee and representations\nand understandings of the parties with respect thereto, without extinguishing whatsoever rights heretofore\nacquired by Company under any previous agreements.\n7\n(g)\nThe Company may assign any of its rights under this Agreement to any successor entity to the\nCompany, including, but not limited to, any entity formed by the Company to carry on the business of the\nCompany.\n[SIGNATURES APPEAR ON NEXT PAGE]\n8\nIN WITNESS WHEREOF, the Agreement has been executed as aforesaid.\nCOMPANY\nHEARTLAND PAYMENT SYSTEMS, INC.\nBy: /s/ Robert O. Carr\nName: Robert O. Carr\nTitle: Chief Executive Officer\nEMPLOYEE:\nBy: /s/ Michael A. Lawler\nName: Michael A. Lawler\n9\nEXHIBIT A\nOTHER AGREEMENTS\n[NONE]\n10
+ad2edbcc96c787344ad157abcc07325d.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 9 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nMay 27, 2011\nCONFIDENTIAL\nTPG Capital, L.P.\n301 Commerce Street\nSuite 3300\nFort Worth, TX 76102\nAttention: Ronald Cami, Vice President\nLadies and Gentlemen:\nTPG Capital, L.P., a Texas limited partnership (“TPG”), and Immucor, Inc., a Georgia corporation (“Immucor”), each have expressed\ninterest in discussing steps that could lead to a negotiated transaction. TPG and Immucor are hereafter sometimes referred to individually as a\n“Party” and collectively as the “Parties”.\nThis letter agreement sets forth the Parties’ agreement and understanding with respect to the disclosure by a Party (the “Disclosing\nParty”) of certain of its confidential information regarding itself and its businesses to the other Party (the “Receiving Party”). As a condition to the\nDisclosing Party furnishing the Receiving Party with such information, the Receiving Party agrees to treat any information, whether written or oral,\nconcerning the Disclosing Party (whether prepared by the Disclosing Party, its advisors or otherwise) that is furnished to the Receiving Party,\nwhether before or after the date hereof, by or on behalf of the Disclosing Party regardless of whether such information is identified as “confidential”\n(herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or abstain from\ntaking certain other actions herein set forth. The Receiving Party recognizes and acknowledges the competitive value of the Evaluation Material and\nthe damage that could result to the Disclosing Party if any of the Evaluation Material was used or disclosed except as authorized by this letter\nagreement.\nFor purposes of this letter agreement, the term “Evaluation Material” includes, without limitation, all notes, files, analyses, compilations,\nspreadsheets, data, reports, studies, interpretations or other documents relating to (a) technology for use with blood and blood component products,\n(b) blood grouping, typing and genotyping and related instrumentation, (c) nucleic acid testing of infectious diseases for blood screening and related\ninstrumentation, (d) existing products, products in development, and intellectual property (whether owned or licensed), (e) market sizes, market\nshare, growth potential, market development plans and strategy, (f) financial statements, financial projections and related financial analysis,\n(g) litigation, investigations and other judicial or administrative proceedings, (h) vendors, suppliers, customers, distributors and other commercial\nrelationships, and (i) any other aspects of the Disclosing Party’s business, furnished to the Receiving Party or its directors, officers, employees,\nagents, advisors (including, without limitation, attorneys, accountants, consultants and financial advisors) and lenders and other sources of debt or\nequity financing (collectively, the “Representatives”) or prepared by the Receiving Party or its Representatives to the extent such materials reflect or\nare based upon, in whole or in part, the Evaluation Material or the Receiving\nTPG Capital, L.P.\nMay 27, 2011\nPage 2\nParty’s review, or interest in, the Disclosing Party. Notwithstanding the foregoing, Ron Labrum shall be deemed to be a Representative of TPG.\nNotwithstanding the preceding sentence, the term “Evaluation Material” does not include information that (i) is or becomes available to the\nReceiving Party on a nonconfidential basis from a source other than the Disclosing Party or its Representatives (provided that such source is not,\nafter reasonable inquiry, known to the Receiving Party to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation to, the Disclosing Party or its Representatives that prohibits such disclosure), (ii) is or becomes generally available to the public other than\nas a result of a disclosure by the Receiving Party or its Representatives in violation of this letter agreement, or (iii) has been or is independently\ndeveloped by the Receiving Party or its Representatives without the use of the Evaluation Material or in violation of the terms of this letter\nagreement.\n1. The Receiving Party hereby agrees that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating\nand negotiating a possible negotiated transaction between the Parties and/or one or more affiliates and/or subsidiaries of the Parties (a “Possible\nTransaction”); provided, however, that, subject to the last sentence of this paragraph 1, the Evaluation Material may be disclosed (a) to\nRepresentatives who need to know such information for the sole purpose of evaluating and negotiating a Possible Transaction and (b) as the\nDisclosing Party may otherwise consent in writing. All such Representatives shall be informed by the Receiving Party of the confidential nature of\nthe Evaluation Material and of the terms of this letter agreement, and the Receiving Party shall cause all such Representatives to agree to keep the\nEvaluation Material strictly confidential and to abide by the terms hereof to the same extent as if they were parties to this letter agreement; provided,\nhowever, that the restrictions set forth in paragraphs 6 and 7 shall not apply to the Receiving Party’s agents and advisors (including, without\nlimitation, attorneys, accountants, consultants and financial advisors). The Receiving Party agrees to be responsible for any breaches of, or failures to\ncomply with, any of the provisions of this letter agreement by it or any of its Representatives, provided that the Receiving Party shall not be\nresponsible for any of its Representatives that have entered into, or that subsequently enter into, any separate confidentiality agreement with the\nDisclosing Party containing provisions mutually acceptable to the parties thereto. The Receiving Party further agrees that the Disclosing Party\nreserves the right to adopt additional specific procedures to protect the confidentiality of certain sensitive Evaluation Material, provided that the\nReceiving Party shall not be obligated to comply with such procedures until such time as the Disclosing Party has provided the Receiving Party with\nwritten notice of such procedures. Notwithstanding anything in this letter agreement to the contrary (including the definition of “Representatives”),\nthe Receiving Party hereby agrees that it will not, and will cause its Representatives not to, (i) contact or check conflicts with any potential lenders or\nother sources of debt or equity financing with respect to the Possible Transaction or (ii) directly or indirectly, share the Evaluation Material with or\nenter into any agreement, arrangement or understanding, or any discussions which could reasonably be expected to lead to such an agreement,\narrangement or understanding, with any potential lenders or other sources of debt or equity financing, in each case without the prior written consent\nof Immucor and only upon such person executing a confidentiality agreement in favor of Immucor with terms and conditions satisfactory to\nImmucor.\nTPG Capital, L.P.\nMay 27, 2011\nPage 3\n2. Without the prior written consent of the other Party, except as required by applicable law, regulation, legal process or stock exchange\nregulations (in which case the Party seeking to make such disclosure will use its reasonable best efforts to notify the other Party in advance of such\nproposed disclosure), neither Party will, and each Party will cause its Representatives not to, disclose to any person (a) the fact that investigations,\ndiscussions or negotiations are taking place or have taken place concerning a Possible Transaction, (b) any of the terms, conditions or other facts\nwith respect to any such Possible Transaction, including the status thereof or the fact that the other Party is considering or has considered such a\nPossible Transaction, or (c) that this letter agreement exists, or that Evaluation Material has been requested or made available to it or its\nRepresentatives. The term “person” as used in this letter agreement shall be interpreted broadly to include any corporation, company, governmental\nagency or body, entity, partnership, group or individual.\n3. Each Party hereby acknowledges that it and its Representatives are aware that the United States securities laws generally prohibit any\nperson who has material, non-public information concerning a company from purchasing or selling securities of such company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor sell such securities.\n4. Notwithstanding the foregoing, in the event the Receiving Party or any of its Representatives receives a request or is required by\napplicable law, regulation or legal process (including by deposition, interrogatory, request for documents, subpoena, civil investigative demand or\nsimilar process) to disclose all or any part of the Evaluation Material, the Receiving Party or its Representatives, as the case may be, agree to\n(a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such request or requirement (to the extent such\nnotification is legally permitted), (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such\nrequest or requirement, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate\nremedy (if the Disclosing Party chooses to seek such an order or remedy, in its sole discretion). In the event that such protective order or other\nremedy is not sought or obtained, the Receiving Party or its Representatives, as the case may be, may disclose only that portion of the Evaluation\nMaterial which the Receiving Party or its Representatives, as the case may be, are advised by outside counsel in writing is legally required to be\ndisclosed, and the Receiving Party or its Representatives shall exercise reasonable best efforts to obtain assurance that confidential treatment will be\naccorded such Evaluation Material.\n5. Unless otherwise agreed to by the Parties in writing, (a) all communications regarding the Possible Transaction will be submitted or\ndirected exclusively to the individuals set forth in Exhibit A to this letter agreement and (b) each Party agrees not to directly or indirectly contact or\ncommunicate with any other executive or employee of the other Party concerning a Possible Transaction or to seek any information in connection\ntherewith from any such person.\n6. Each Party agrees that, for a period of eighteen months after the date hereof, neither it nor any of its affiliates (including its related or\nmanaged portfolio companies\nTPG Capital, L.P.\nMay 27, 2011\nPage 4\nand managers) who in each case have received Evaluation Material of the other Party or who such Party or such Party’s Representatives have made\naware of a Possible Transaction will, directly or indirectly, solicit for employment or employ, or cause to leave the employ of the other Party, any\nindividual serving as (a) an officer of the other Party, or (b) any employee of the other Party with whom a Party has had substantive contact, or who\nis specifically identified to a Party, during a Party’s investigation of such other Party and its business, in each case without obtaining the prior written\nconsent of the other Party; provided, however, that the foregoing provision shall not preclude a Party or such of its affiliates from making good faith\ngeneralized solicitations for employees (not targeted at employees of the other Party or any of its controlled affiliates) through advertisements or\nsearch firms and hiring any persons solely resulting through such solicitations provided that neither such Party nor any of its Representatives\nencourages or advises such firm to approach any such employee.\n7. TPG agrees that, for a period that is the shorter of (a) eighteen (18) months after the date hereof or (b) twelve (12) months after the\ndate on which discussions between the Parties regarding a Possible Transaction cease, neither it nor any of its directors, officers, employees or\naffiliates (including its related or managed portfolio companies and managers which have received Evaluation Material of Immucor or which have\nbeen made aware of a Possible Transaction by TPG or TPG’s Representatives) will, unless specifically invited in writing by the board of directors of\nImmucor, acting by resolution approved by a majority of all members of the board, directly or indirectly, in any manner (TPG’s obligations pursuant\nto this paragraph being, the “Standstill”): (a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly,\nalone or in concert with others, by purchase or otherwise, any direct or indirect beneficial interest in any voting or other securities or direct or\nindirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting or other securities of Immucor or any of\nits subsidiaries (collectively, the “Company”), (b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any\n“solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to\nSection 14 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), whether subject to or exempt from the proxy rules, or seek to\nadvise or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company, (c) form, join\nor any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting or other securities of the\nCompany, (d) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise,\n(i) any of the assets, tangible and intangible, of the Company or (ii) direct or indirect rights, warrants or options to acquire any assets of the\nCompany, (e) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting or other securities or securities\nconvertible or exchangeable into or exercisable for any voting or other securities or assets of the Company, (f) otherwise act, alone or in concert with\nothers, to seek to propose to the Company or any of its shareholders any merger, business combination, share exchange, consolidation, sale,\nrestructuring, reorganization, recapitalization or other transaction involving the Company or otherwise seek, alone or in concert with others, to\ncontrol, change or influence the management, board of directors or policies of the Company or nominate any person as a director who is not\nTPG Capital, L.P.\nMay 27, 2011\nPage 5\nnominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company, (g) make any request or\nproposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any\nprovision of the Standstill, or (h) announce an intention to do, or enter into any arrangement or understanding with others to do, any of the actions\nrestricted or prohibited under clauses (a) through (g) of this Standstill, or take any action that would reasonably be expected to result in the Company\nhaving to make a public announcement regarding any of the matters referred to in clauses (a) through (g) of the Standstill. For the avoidance of\ndoubt, TPG’s related or managed portfolio companies and managers which have not received Evaluation Material of Immucor and which have not\nbeen made aware of a Possible Transaction by TPG or TPG’s Representatives shall be deemed not to be affiliates of TPG for purposes of the\nimmediately preceding sentence.\n8. This letter agreement does not constitute or create any obligation on the part of either Party or its Representatives to provide any\nparticular Evaluation Material to the other Party. Although the Disclosing Party has endeavored to include in the Evaluation Material information\nknown to it which it believes to be relevant for the purpose of the Receiving Party’s investigation, the Receiving Party understands and\nacknowledges that none of the Disclosing Party or its affiliates or Representatives have made or make any representation or warranty, express or\nimplied, as to the accuracy or completeness of the Evaluation Material. The Receiving Party agrees that none of the Disclosing Party or its affiliates\nor Representatives shall have any liability to the Receiving Party or any of its Representatives resulting from the selection, use or content of the\nEvaluation Material by the Receiving Party or its Representatives.\n9. Upon the Disclosing Party’s written request, the Receiving Party shall, and shall cause its Representatives to, promptly, and in any\nevent within ten business days after such request, deliver to the Disclosing Party or, at the Receiving Party’s option, destroy all written Evaluation\nMaterial and any other written materials constituting Evaluation Material without retaining, in whole or in part, any copies, extracts or other\nreproductions (whatever the form or storage medium) of such materials, and shall certify the return or the destruction (as the case may be) of such\nmaterials in writing to the Disclosing Party; provided, however, that the decision of whether to deliver to the Disclosing Party or destroy any written\nEvaluation Material furnished by or on behalf of the Disclosing Party relating to any litigation or Department of Justice, FDA or other government\ninvestigation, action or inquiry (“Restricted Evaluation Material”) shall be at the option of the Disclosing Party. To the extent any Evaluation\nMaterial (or Restricted Evaluation Material) has been incorporated into materials developed by the Receiving Party or its Representatives, the\nReceiving Party shall, and shall ensure that its Representatives, destroy such materials promptly, and in any event within ten business days after the\nDisclosing Party’s written request to destroy such materials. Notwithstanding the foregoing, (i) the Receiving Party and its Representatives that are\nattorneys, financial advisors, accounting firms, lenders or other consultants may retain, solely for compliance purposes, copies of the Evaluation\nMaterial if such party determines after consulting with counsel that such retention is necessary to comply with law or regulation and (ii) the\nReceiving Party and its Representatives shall not be required to use more than commercially reasonable efforts to expunge any Evaluation Material\nstored\nTPG Capital, L.P.\nMay 27, 2011\nPage 6\nelectronically on back up servers that are routinely overwritten. Notwithstanding the return or destruction of the Evaluation Material, the Receiving\nParty and its Representatives will continue to be bound by their obligations under this letter agreement during the term hereof.\n10. Each Party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of\nthis letter agreement by the other Party or such other Party’s affiliates or Representatives and that, in the event of any breach or threatened breach\nhereof, (a) the non-breaching Party shall be entitled to injunctive and other equitable relief, without proof of actual damages, (b) the breaching Party\nshall not plead in defense thereto that there would be an adequate remedy at law, and (c) the breaching Party agrees to waive, and to use its\nreasonable best efforts to cause its Representatives to waive, any applicable right or requirement that a bond be posted by the non-breaching Party.\nSuch remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law\nor in equity.\n11. Each Party agrees that unless and until a definitive agreement between the Parties with respect to a Possible Transaction has been\nexecuted and delivered, neither Party nor any Representative of either Party will be under any legal obligation of any kind whatsoever by virtue of\nthis or any written or oral expression with respect to any Possible Transaction except, in the case of this letter agreement, for the matters specifically\nagreed to herein, and each Party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with any\nPossible Transaction. For purposes of this letter agreement, the term “definitive agreement” does not include an executed letter of intent or any other\npreliminary written agreement (including drafts or other documents that are exchanged relating to a Possible Transaction), nor does it include any\noral acceptance of an offer or bid by either Party. The agreement set forth in this paragraph may be modified or waived only pursuant to a separate\nwriting (a) expressly so modifying or waiving such agreement and (b) executed by the Parties.\n12. If any term or provision of this letter agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the\nremainder of the terms and provisions of this letter agreement shall remain in full force and effect and shall in no way be affected, impaired or\ninvalidated.\n13. No waiver of any provision of this letter agreement, or of a breach hereof, shall be effective unless it is expressly stated in a writing\nsigned by the Party waiving the provision or the breach hereof. No waiver of a breach of this letter agreement (whether express or implied) shall\nconstitute a waiver of a subsequent breach hereof. Each Party understands and agrees that no failure or delay by the other Party in exercising any\nright, power or privilege under this letter agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any\nother or future exercise of any right, power or privilege hereunder.\n14. This letter agreement shall be governed by and construed in accordance with the laws of the State of New York.\nTPG Capital, L.P.\nMay 27, 2011\nPage7\n15. This letter agreement shall be binding upon the Parties and upon their respective successors and permitted assigns. Neither Party is\npermitted to assign any of its rights or delegate any of its duties under this letter agreement without the prior written consent of the other Party, and\nany attempt to do so without such consent shall be void.\n16. This letter agreement shall expire and cease to have any force or effect on the earlier of (a) the date that is the second anniversary of\nthe date of this letter agreement and (b) the date on which the Possible Transaction is consummated.\n17. Effective as of the date first set forth above, this letter agreement supersedes and replaces the prior Confidentiality Agreement\nbetween the Parties dated May 5, 2011.\n18. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall\nconstitute the same agreement. One or more counterparts of this letter agreement may be delivered by telecopier or PDF electronic transmission,\nwith the intention that they shall have the same effect as an original counterpart hereof.\n19. Immucor agrees that neither Immucor nor any of its Representatives will share with any other person (including, without limitation,\nany other potential participants in a transaction similar to the Possible Transaction) any analysis or other work product prepared by TPG or any of its\nRepresentatives in connection with the Possible Transaction.\nVery truly yours,\nImmucor, Inc.\nBy: /s/ Philip H. Moise\nPhilip H. Moise\nEVP & General Counsel\nTPG Capital, L.P.\nMay 27, 2011\nPage 8\nConfirmed and Agreed to:\nTPG Capital, L.P.\nBy: TPG Capital Advisors, LLC\nBy: /s/ Ronald Cami\nName: Ronald Cami\nTitle: Vice President\nDate: May 27, 2011	EX-99.(D)(2) 9 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nMay 27, 2011\nCONFIDENTIAL\nTPG Capital, L.P.\n301 Commerce Street\nSuite 3300\nFort Worth, TX 76102\nAttention: Ronald Cami, Vice President\nLadies and Gentlemen:\nTPG Capital, L.P., a Texas limited partnership (“IPG”), and Immucor, Inc., a Georgia corporation (“Immucor”), each have expressed\ninterest in discussing steps that could lead to a negotiated transaction. TPG and Immucor are hereafter sometimes referred to individually as a\n“Party” and collectively as the “Parties”.\nThis letter agreement sets forth the Parties’ agreement and understanding with respect to the disclosure by a Party (the “Disclosing\nParty”) of certain of its confidential information regarding itself and its businesses to the other Party (the “Receiving Party”). As a condition to the\nDisclosing Party furnishing the Receiving Party with such information, the Receiving Party agrees to treat any information, whether written or oral,\nconcerning the Disclosing Party (whether prepared by the Disclosing Party, its advisors or otherwise) that is furnished to the Receiving Party,\nwhether before or after the date hereof, by or on behalf of the Disclosing Party regardless of whether such information is identified as “confidential”\n(herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or abstain from\ntaking certain other actions herein set forth. The Receiving Party recognizes and acknowledges the competitive value of the Evaluation Material and\nthe damage that could result to the Disclosing Party if any of the Evaluation Material was used or disclosed except as authorized by this letter\nagreement.\nFor purposes of this letter agreement, the term “Evaluation Material” includes, without limitation, all notes, files, analyses, compilations,\nspreadsheets, data, reports, studies, interpretations or other documents relating to (a) technology for use with blood and blood component products,\n(b) blood grouping, typing and genotyping and related instrumentation, (c) nucleic acid testing of infectious diseases for blood screening and related\ninstrumentation, (d) existing products, products in development, and intellectual property (whether owned or licensed), (e) market sizes, market\nshare, growth potential, market development plans and strategy, (f) financial statements, financial projections and related financial analysis,\n(g) litigation, investigations and other judicial or administrative proceedings, (h) vendors, suppliers, customers, distributors and other commercial\nrelationships, and (i) any other aspects of the Disclosing Party’s business, furnished to the Receiving Party or its directors, officers, employees,\nagents, advisors (including, without limitation, attorneys, accountants, consultants and financial advisors) and lenders and other sources of debt or\nequity financing (collectively, the “Representatives”) or prepared by the Receiving Party or its Representatives to the extent such materials reflect or\nare based upon, in whole or in part, the Evaluation Material or the Receiving\nTPG Capital, L.P.\nMay 27, 2011\nPage 2\nParty’s review, or interest in, the Disclosing Party. Notwithstanding the foregoing, Ron Labrum shall be deemed to be a Representative of TPG.\nNotwithstanding the preceding sentence, the term “Evaluation Material” does not include information that (i) is or becomes available to the\nReceiving Party on a nonconfidential basis from a source other than the Disclosing Party or its Representatives (provided that such source is not,\nafter reasonable inquiry, known to the Receiving Party to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation to, the Disclosing Party or its Representatives that prohibits such disclosure), (ii) is or becomes generally available to the public other than\nas a result of a disclosure by the Receiving Party or its Representatives in violation of this letter agreement, or (iii) has been or is independently\ndeveloped by the Receiving Party or its Representatives without the use of the Evaluation Material or in violation of the terms of this letter\nagreement.\n1. The Receiving Party hereby agrees that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating\nand negotiating a possible negotiated transaction between the Parties and/or one or more affiliates and/or subsidiaries of the Parties (a “Possible\nTransaction”); provided, however, that, subject to the last sentence of this paragraph 1, the Evaluation Material may be disclosed (a) to\nRepresentatives who need to know such information for the sole purpose of evaluating and negotiating a Possible Transaction and (b) as the\nDisclosing Party may otherwise consent in writing. All such Representatives shall be informed by the Receiving Party of the confidential nature of\nthe Evaluation Material and of the terms of this letter agreement, and the Receiving Party shall cause all such Representatives to agree to keep the\nEvaluation Material strictly confidential and to abide by the terms hereof to the same extent as if they were parties to this letter agreement; provided,\nhowever, that the restrictions set forth in paragraphs 6 and 7 shall not apply to the Receiving Party’s agents and advisors (including, without\nlimitation, attorneys, accountants, consultants and financial advisors). The Receiving Party agrees to be responsible for any breaches of, or failures to\ncomply with, any of the provisions of this letter agreement by it or any of its Representatives, provided that the Receiving Party shall not be\nresponsible for any of its Representatives that have entered into, or that subsequently enter into, any separate confidentiality agreement with the\nDisclosing Party containing provisions mutually acceptable to the parties thereto. The Receiving Party further agrees that the Disclosing Party\nreserves the right to adopt additional specific procedures to protect the confidentiality of certain sensitive Evaluation Material, provided that the\nReceiving Party shall not be obligated to comply with such procedures until such time as the Disclosing Party has provided the Receiving Party with\nwritten notice of such procedures. Notwithstanding anything in this letter agreement to the contrary (including the definition of “Representatives”),\nthe Receiving Party hereby agrees that it will not, and will cause its Representatives not to, (i) contact or check conflicts with any potential lenders or\nother sources of debt or equity financing with respect to the Possible Transaction or (ii) directly or indirectly, share the Evaluation Material with or\nenter into any agreement, arrangement or understanding, or any discussions which could reasonably be expected to lead to such an agreement,\narrangement or understanding, with any potential lenders or other sources of debt or equity financing, in each case without the prior written consent\nof Immucor and only upon such person executing a confidentiality agreement in favor of Immucor with terms and conditions satisfactory to\nImmucor.\nTPG Capital, L.P.\nMay 27, 2011\nPage 3\n2. Without the prior written consent of the other Party, except as required by applicable law, regulation, legal process or stock exchange\nregulations (in which case the Party seeking to make such disclosure will use its reasonable best efforts to notify the other Party in advance of such\nproposed disclosure), neither Party will, and each Party will cause its Representatives not to, disclose to any person (a) the fact that investigations,\ndiscussions or negotiations are taking place or have taken place concerning a Possible Transaction, (b) any of the terms, conditions or other facts\nwith respect to any such Possible Transaction, including the status thereof or the fact that the other Party is considering or has considered such a\nPossible Transaction, or (c) that this letter agreement exists, or that Evaluation Material has been requested or made available to it or its\nRepresentatives. The term “person” as used in this letter agreement shall be interpreted broadly to include any corporation, company, governmental\nagency or body, entity, partnership, group or individual.\n3. Each Party hereby acknowledges that it and its Representatives are aware that the United States securities laws generally prohibit any\nperson who has material, non-public information concerning a company from purchasing or selling securities of such company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor sell such securities.\n4. Notwithstanding the foregoing, in the event the Receiving Party or any of its Representatives receives a request or is required by\napplicable law, regulation or legal process (including by deposition, interrogatory, request for documents, subpoena, civil investigative demand or\nsimilar process) to disclose all or any part of the Evaluation Material, the Receiving Party or its Representatives, as the case may be, agree to\n(a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such request or requirement (to the extent such\nnotification is legally permitted), (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such\nrequest or requirement, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate\nremedy (if the Disclosing Party chooses to seek such an order or remedy, in its sole discretion). In the event that such protective order or other\nremedy is not sought or obtained, the Receiving Party or its Representatives, as the case may be, may disclose only that portion of the Evaluation\nMaterial which the Receiving Party or its Representatives, as the case may be, are advised by outside counsel in writing is legally required to be\ndisclosed, and the Receiving Party or its Representatives shall exercise reasonable best efforts to obtain assurance that confidential treatment will be\naccorded such Evaluation Material.\n5. Unless otherwise agreed to by the Parties in writing, (a) all communications regarding the Possible Transaction will be submitted or\ndirected exclusively to the individuals set forth in Exhibit A to this letter agreement and (b) each Party agrees not to directly or indirectly contact or\ncommunicate with any other executive or employee of the other Party concerning a Possible Transaction or to seek any information in connection\ntherewith from any such person.\n6. Each Party agrees that, for a period of eighteen months after the date hereof, neither it nor any of its affiliates (including its related or\nmanaged portfolio companies\nTPG Capital, L.P.\nMay 27, 2011\nPage 4\nand managers) who in each case have received Evaluation Material of the other Party or who such Party or such Party’s Representatives have made\naware of a Possible Transaction will, directly or indirectly, solicit for employment or employ, or cause to leave the employ of the other Party, any\nindividual serving as (a) an officer of the other Party, or (b) any employee of the other Party with whom a Party has had substantive contact, or who\nis specifically identified to a Party, during a Party’s investigation of such other Party and its business, in each case without obtaining the prior written\nconsent of the other Party; provided, however, that the foregoing provision shall not preclude a Party or such of its affiliates from making good faith\ngeneralized solicitations for employees (not targeted at employees of the other Party or any of its controlled affiliates) through advertisements or\nsearch firms and hiring any persons solely resulting through such solicitations provided that neither such Party nor any of its Representatives\nencourages or advises such firm to approach any such employee.\n7. TPG agrees that, for a period that is the shorter of (a) eighteen (18) months after the date hereof or (b) twelve (12) months after the\ndate on which discussions between the Parties regarding a Possible Transaction cease, neither it nor any of its directors, officers, employees or\naffiliates (including its related or managed portfolio companies and managers which have received Evaluation Material of Immucor or which have\nbeen made aware of a Possible Transaction by TPG or TPG’s Representatives) will, unless specifically invited in writing by the board of directors of\nImmucor, acting by resolution approved by a majority of all members of the board, directly or indirectly, in any manner (TPG’s obligations pursuant\nto this paragraph being, the “Standstill”): (a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly,\nalone or in concert with others, by purchase or otherwise, any direct or indirect beneficial interest in any voting or other securities or direct or\nindirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting or other securities of Immucor or any of\nits subsidiaries (collectively, the “Company”), (b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any\n“solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to\nSection 14 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), whether subject to or exempt from the proxy rules, or seek to\nadvise or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company, (c) form, join\nor any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting or other securities of the\nCompany, (d) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise,\n(i) any of the assets, tangible and intangible, of the Company or (ii) direct or indirect rights, warrants or options to acquire any assets of the\nCompany, (e) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting or other securities or securities\nconvertible or exchangeable into or exercisable for any voting or other securities or assets of the Company, (f) otherwise act, alone or in concert with\nothers, to seek to propose to the Company or any of its shareholders any merger, business combination, share exchange, consolidation, sale,\nrestructuring, reorganization, recapitalization or other transaction involving the Company or otherwise seek, alone or in concert with others, to\ncontrol, change or influence the management, board of directors or policies of the Company or nominate any person as a director who is not\nTPG Capital, L.P.\nMay 27, 2011\nPage 5\nnominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company, (g) make any request or\nproposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any\nprovision of the Standstill, or (h) announce an intention to do, or enter into any arrangement or understanding with others to do, any of the actions\nrestricted or prohibited under clauses (a) through (g) of this Standstill, or take any action that would reasonably be expected to result in the Company\nhaving to make a public announcement regarding any of the matters referred to in clauses (a) through (g) of the Standstill. For the avoidance of\ndoubt, TPG’s related or managed portfolio companies and managers which have not received Evaluation Material of Immucor and which have not\nbeen made aware of a Possible Transaction by TPG or TPG’s Representatives shall be deemed not to be affiliates of TPG for purposes of the\nimmediately preceding sentence.\n8. This letter agreement does not constitute or create any obligation on the part of either Party or its Representatives to provide any\nparticular Evaluation Material to the other Party. Although the Disclosing Party has endeavored to include in the Evaluation Material information\nknown to it which it believes to be relevant for the purpose of the Receiving Party’s investigation, the Receiving Party understands and\nacknowledges that none of the Disclosing Party or its affiliates or Representatives have made or make any representation or warranty, express or\nimplied, as to the accuracy or completeness of the Evaluation Material. The Receiving Party agrees that none of the Disclosing Party or its affiliates\nor Representatives shall have any liability to the Receiving Party or any of its Representatives resulting from the selection, use or content of the\nEvaluation Material by the Receiving Party or its Representatives.\n9. Upon the Disclosing Party’s written request, the Receiving Party shall, and shall cause its Representatives to, promptly, and in any\nevent within ten business days after such request, deliver to the Disclosing Party or, at the Receiving Party’s option, destroy all written Evaluation\nMaterial and any other written materials constituting Evaluation Material without retaining, in whole or in part, any copies, extracts or other\nreproductions (whatever the form or storage medium) of such materials, and shall certify the return or the destruction (as the case may be) of such\nmaterials in writing to the Disclosing Party; provided, however, that the decision of whether to deliver to the Disclosing Party or destroy any written\nEvaluation Material furnished by or on behalf of the Disclosing Party relating to any litigation or Department of Justice, FDA or other government\ninvestigation, action or inquiry (“Restricted Evaluation Material”) shall be at the option of the Disclosing Party. To the extent any Evaluation\nMaterial (or Restricted Evaluation Material) has been incorporated into materials developed by the Receiving Party or its Representatives, the\nReceiving Party shall, and shall ensure that its Representatives, destroy such materials promptly, and in any event within ten business days after the\nDisclosing Party’s written request to destroy such materials. Notwithstanding the foregoing, (i) the Receiving Party and its Representatives that are\nattorneys, financial advisors, accounting firms, lenders or other consultants may retain, solely for compliance purposes, copies of the Evaluation\nMaterial if such party determines after consulting with counsel that such retention is necessary to comply with law or regulation and (ii) the\nReceiving Party and its Representatives shall not be required to use more than commercially reasonable efforts to expunge any Evaluation Material\nstored\nTPG Capital, L.P.\nMay 27, 2011\nPage 6\nelectronically on back up servers that are routinely overwritten. Notwithstanding the return or destruction of the Evaluation Material, the Receiving\nParty and its Representatives will continue to be bound by their obligations under this letter agreement during the term hereof.\n10. Each Party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of\nthis letter agreement by the other Party or such other Party’s affiliates or Representatives and that, in the event of any breach or threatened breach\nhereof, (a) the non-breaching Party shall be entitled to injunctive and other equitable relief, without proof of actual damages, (b) the breaching Party\nshall not plead in defense thereto that there would be an adequate remedy at law, and (c) the breaching Party agrees to waive, and to use its\nreasonable best efforts to cause its Representatives to waive, any applicable right or requirement that a bond be posted by the non-breaching Party.\nSuch remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law\nor in equity.\n11. Each Party agrees that unless and until a definitive agreement between the Parties with respect to a Possible Transaction has been\nexecuted and delivered, neither Party nor any Representative of either Party will be under any legal obligation of any kind whatsoever by virtue of\nthis or any written or oral expression with respect to any Possible Transaction except, in the case of this letter agreement, for the matters specifically\nagreed to herein, and each Party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with any\nPossible Transaction. For purposes of this letter agreement, the term “definitive agreement” does not include an executed letter of intent or any other\npreliminary written agreement (including drafts or other documents that are exchanged relating to a Possible Transaction), nor does it include any\noral acceptance of an offer or bid by either Party. The agreement set forth in this paragraph may be modified or waived only pursuant to a separate\nwriting (a) expressly so modifying or waiving such agreement and (b) executed by the Parties.\n12. If any term or provision of this letter agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the\nremainder of the terms and provisions of this letter agreement shall remain in full force and effect and shall in no way be affected, impaired or\ninvalidated.\n13. No waiver of any provision of this letter agreement, or of a breach hereof, shall be effective unless it is expressly stated in a writing\nsigned by the Party waiving the provision or the breach hereof. No waiver of a breach of this letter agreement (whether express or implied) shall\nconstitute a waiver of a subsequent breach hereof. Each Party understands and agrees that no failure or delay by the other Party in exercising any\nright, power or privilege under this letter agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any\nother or future exercise of any right, power or privilege hereunder.\n14. This letter agreement shall be governed by and construed in accordance with the laws of the State of New York.\nTPG Capital, L.P.\nMay 27, 2011\nPage7\n15. This letter agreement shall be binding upon the Parties and upon their respective successors and permitted assigns. Neither Party is\npermitted to assign any of its rights or delegate any of its duties under this letter agreement without the prior written consent of the other Party, and\nany attempt to do so without such consent shall be void.\n16. This letter agreement shall expire and cease to have any force or effect on the earlier of (a) the date that is the second anniversary of\nthe date of this letter agreement and (b) the date on which the Possible Transaction is consummated.\n17. Effective as of the date first set forth above, this letter agreement supersedes and replaces the prior Confidentiality Agreement\nbetween the Parties dated May 5, 2011.\n18. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall\nconstitute the same agreement. One or more counterparts of this letter agreement may be delivered by telecopier or PDF electronic transmission,\nwith the intention that they shall have the same effect as an original counterpart hereof.\n19. Immucor agrees that neither Immucor nor any of its Representatives will share with any other person (including, without limitation,\nany other potential participants in a transaction similar to the Possible Transaction) any analysis or other work product prepared by TPG or any of its\nRepresentatives in connection with the Possible Transaction.\nVery truly yours,\nImmucor, Inc.\nBy: /s/ Philip H. Moise\nPhilip H. Moise\nEVP & General Counsel\nTPG Capital, L.P.\nMay 27, 2011\nPage 8\nConfirmed and Agreed to:\nTPG Capital, L.P.\nBy: TPG Capital Advisors, LLC\nBy: /s/Ronald Cami\nName: Ronald Cami\nTitle: Vice President\nDate: May 27, 2011	EX-99.(D)(2) 9 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nMay 27, 2011\nCONFIDENTIAL\nTPG Capital, L.P.\n301 Commerce Street\nSuite 3300\nFort Worth, TX 76102\nAttention: Ronald Cami, Vice President\nLadies and Gentlemen:\nTPG Capital, L.P., a Texas limited partnership ("TPG"), and Immucor, Inc., a Georgia corporation ("Immucor"), each have expressed\ninterest in discussing steps that could lead to a negotiated transaction. TPG and Immucor are hereafter sometimes referred to individually as a\n"Party." and collectively as the "Parties".\nThis letter agreement sets forth the Parties' agreement and understanding with respect to the disclosure by a Party (the "Disclosing\nParty.") of certain of its confidential information regarding itself and its businesses to the other Party (the "ReceivingI Party."). As a condition to the\nDisclosing Party furnishing the Receiving Party with such information, the Receiving Party agrees to treat any information, whether written or oral,\nconcerning the Disclosing Party (whether prepared by the Disclosing Party, its advisors or otherwise) that is furnished to the Receiving Party,\nwhether before or after the date hereof, by or on behalf of the Disclosing Party regardless of whether such information is identified as "confidential"\n(herein collectively referred to as the "Evaluation Material") in accordance with the provisions of this letter agreement and to take or abstain from\ntaking certain other actions herein set forth. The Receiving Party recognizes and acknowledges the competitive value of the Evaluation Material and\nthe damage that could result to the Disclosing Party if any of the Evaluation Material was used or disclosed except as authorized by this letter\nagreement.\nFor purposes of this letter agreement, the term "Evaluation Material" includes, without limitation, all notes, files, analyses, compilations,\nspreadsheets, data, reports, studies, interpretations or other documents relating to (a) technology for use with blood and blood component products,\n(b) blood grouping, typing and genotyping and related instrumentation, (c) nucleic acid testing of infectious diseases for blood screening and related\ninstrumentation, (d) existing products, products in development, and intellectual property (whether owned or licensed), (e) market sizes, market\nshare, growth potential, market development plans and strategy, (f) financial statements, financial projections and related financial analysis,\n(g) litigation, investigations and other judicial or administrative proceedings, (h) vendors, suppliers, customers, distributors and other commercial\nrelationships, and (i) any other aspects of the Disclosing Party's business, furnished to the Receiving Party or its directors, officers, employees,\nagents, advisors (including, without limitation, attorneys, accountants, consultants and financial advisors) and lenders and other sources of debt\nor\nequity financing (collectively, the "Representatives") or prepared by the Receiving Party or its Representatives to the extent such materials reflect or\nare based upon, in whole or in part, the Evaluation Material or the Receiving\nTPG Capital, L.P.\nMay 27, 2011\nPage 2\nParty's review, or interest in, the Disclosing Party. Notwithstanding the foregoing, Ron Labrum shall be deemed to be a Representative of TPG.\nNotwithstanding the preceding sentence, the term "Evaluation Material" does not include information that (i) is or becomes available to the\nReceiving Party on a nonconfidential basis from a source other than the Disclosing Party or its Representatives (provided that such source is\nnot,\nafter reasonable inquiry, known to the Receiving Party to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation to, the Disclosing Party or its Representatives that prohibits such disclosure), (ii) is or becomes generally available to the public other than\nas a result of a disclosure by the Receiving Party or its Representatives in violation of this letter agreement, or (iii) has been or is independently\ndeveloped by the Receiving Party or its Representatives without the use of the Evaluation Material or in violation of the terms of this letter\nagreement.\n1. The Receiving Party hereby agrees that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating\nand negotiating a possible negotiated transaction between the Parties and/or one or more affiliates and/or subsidiaries of the Parties (a "Possible\nTransaction"); provided, however, that, subject to the last sentence of this paragraph 1, the Evaluation Material may be disclosed (a) to\nRepresentatives who need to know such information for the sole purpose of evaluating and negotiating a Possible Transaction and (b) as the\nDisclosing Party may otherwise consent in writing. All such Representatives shall be informed by the Receiving Party of the confidential nature\nof\nthe Evaluation Material and of the terms of this letter agreement, and the Receiving Party shall cause all such Representatives to agree to keep the\nEvaluation Material strictly confidential and to abide by the terms hereof to the same extent as if they were parties to this letter agreement; provided,\nhowever, that the restrictions set forth in paragraphs 6 and 7 shall not apply to the Receiving Party's agents and advisors (including, without\nlimitation, attorneys, accountants, consultants and financial advisors). The Receiving Party agrees to be responsible for any breaches of, or failures to\ncomply with, any of the provisions of this letter agreement by it or any of its Representatives, provided that the Receiving Party shall not be\nresponsible for any of its Representatives that have entered into, or that subsequently enter into, any separate confidentiality agreement with\nthe\nDisclosing Party containing provisions mutually acceptable to the parties thereto. The Receiving Party further agrees that the Disclosing Party\nreserves the right to adopt additional specific procedures to protect the confidentiality of certain sensitive Evaluation Material, provided that the\nReceiving Party shall not be obligated to comply with such procedures until such time as the Disclosing Party has provided the Receiving Party with\nwritten notice of such procedures. Notwithstanding anything in this letter agreement to the contrary (including the definition of "Representatives"),\nthe Receiving Party hereby agrees that it will not, and will cause its Representatives not to, (i) contact or check conflicts with any potential lenders\nor\nother sources of debt or equity financing with respect to the Possible Transaction or (ii) directly or indirectly, share the Evaluation Material with or\nenter into any agreement, arrangement or understanding, or any discussions which could reasonably be expected to lead to such an agreement,\narrangement or understanding, with any potential lenders or other sources of debt or equity financing, in each case without the prior written consent\nof Immucor and only upon such person executing a confidentiality agreement in favor of Immucor with terms and conditions satisfactory to\nImmucor.\nTPG Capital, L.P.\nMay 27, 2011\nPage 3\n2. Without the prior written consent of the other Party, except as required by applicable law, regulation, legal process or stock exchange\nregulations (in which case the Party seeking to make such disclosure will use its reasonable best efforts to notify the other Party in advance of such\nproposed disclosure), neither Party will, and each Party will cause its Representatives not to, disclose to any person (a) the fact that investigations,\ndiscussions or negotiations are taking place or have taken place concerning a Possible Transaction, (b) any of the terms, conditions or other facts\nwith respect to any such Possible Transaction, including the status thereof or the fact that the other Party is considering or has considered such\na\nPossible Transaction, or (c) that this letter agreement exists, or that Evaluation Material has been requested or made available to it or its\nRepresentatives. The term "person" as used in this letter agreement shall be interpreted broadly to include any corporation, company, governmental\nagency or body, entity, partnership, group or individual.\n3. Each Party hereby acknowledges that it and its Representatives are aware that the United States securities laws generally prohibit\nany\nperson who has material, non-public information concerning a company from purchasing or selling securities of such company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor sell such securities.\n4. Notwithstanding the foregoing, in the event the Receiving Party or any of its Representatives receives a request or is required by\napplicable law, regulation or legal process (including by deposition, interrogatory, request for documents, subpoena, civil investigative demand\nor\nsimilar process) to disclose all or any part of the Evaluation Material, the Receiving Party or its Representatives, as the case may be, agree to\n(a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such request or requirement (to the extent such\nnotification is legally permitted), (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such\nrequest or requirement, and (c) assist the Disclosing Party, at the Disclosing Party's expense, in seeking a protective order or other appropriate\nremedy (if the Disclosing Party chooses to seek such an order or remedy, in its sole discretion). In the event that such protective order or other\nremedy is not sought or obtained, the Receiving Party or its Representatives, as the case may be, may disclose only that portion of the Evaluation\nMaterial which the Receiving Party or its Representatives, as the case may be, are advised by outside counsel in writing is legally required to be\ndisclosed, and the Receiving Party or its Representatives shall exercise reasonable best efforts to obtain assurance that confidential treatment will be\naccorded such Evaluation Material.\n5. Unless otherwise agreed to by the Parties in writing, (a) all communications regarding the Possible Transaction will be submitted or\ndirected exclusively to the individuals set forth in Exhibit A to this letter agreement and (b) each Party agrees not to directly or indirectly contact or\ncommunicate with any other executive or employee of the other Party concerning a Possible Transaction or to seek any information in connection\ntherewith from any such person.\n6. Each Party agrees that, for a period of eighteen months after the date hereof, neither it nor any of its affiliates (including its related or\nmanaged portfolio companies\nTPG Capital, L.P.\nMay 27, 2011\nPage 4\nand managers) who in each case have received Evaluation Material of the other Party or who such Party or such Party's Representatives have made\naware of a Possible Transaction will, directly or indirectly, solicit for employment or employ, or cause to leave the employ of the other Party, any\nindividual serving as (a) an officer of the other Party, or (b) any employee of the other Party with whom a Party has had substantive contact, or who\nis specifically identified to a Party, during a Party's investigation of such other Party and its business, in each case without obtaining the prior written\nconsent of the other Party; provided, however, that the foregoing provision shall not preclude a Party or such of its affiliates from making good faith\ngeneralized solicitations for employees (not targeted at employees of the other Party or any of its controlled affiliates) through advertisements or\nsearch firms and hiring any persons solely resulting through such solicitations provided that neither such Party nor any of its Representatives\nencourages or advises such firm to approach any such employee.\n7. TPG agrees that, for a period that is the shorter of (a) eighteen (18) months after the date hereof or (b) twelve (12) months after\nthe\ndate on which discussions between the Parties regarding a Possible Transaction cease, neither it nor any of its directors, officers, employees or\naffiliates (including its related or managed portfolio companies and managers which have received Evaluation Material of Immucor or which have\nbeen made aware of a Possible Transaction by TPG or TPG's Representatives) will, unless specifically invited in writing by the board of directors\nof\nImmucor, acting by resolution approved by a majority of all members of the board, directly or indirectly, in any manner (TPG's obligations pursuant\nto this paragraph being, the "Standstill"): (a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly,\nalone or in concert with others, by purchase or otherwise, any direct or indirect beneficial interest in any voting or other securities or direct or\nindirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting or other securities of Immucor or any of\nits\nsubsidiaries (collectively, the "Company."), (b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any\n"solicitation" of "proxies" to vote (as such terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to\nSection 14 of the Securities Exchange Act of 1934, as amended (the "Exchange Ac whether subject to or exempt from the proxy rules, or seek\nto\nadvise or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company, (c) form, join\nor any way participate in a "group" within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting or other securities of the\nCompany, (d) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise,\n(i) any of the assets, tangible and intangible, of the Company or (ii) direct or indirect rights, warrants or options to acquire any assets of the\nCompany, (e) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting or other securities or securities\nconvertible or exchangeable into or exercisable for any voting or other securities or assets of the Company, (f) otherwise act, alone or in concert with\nothers, to seek to propose to the Company or any of its shareholders any merger, business combination, share exchange, consolidation, sale,\nrestructuring, reorganization, recapitalization or other transaction involving the Company or otherwise seek, alone or in concert with others,\nto\ncontrol, change or influence the management, board of directors or policies of the Company or nominate any person as a director who is not\nTPG Capital, L.P.\nMay 27, 2011\nPage 5\nnominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company, (g) make any request or\nproposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement\nwith\nrespect\nto\nany\nprovision of the Standstill, or (h) announce an intention to do, or enter into any arrangement or understanding with others to do, any of the actions\nrestricted or prohibited under clauses (a) through (g) of this Standstill, or take any action that would reasonably be expected to result in the Company\nhaving to make a public announcement regarding any of the matters referred to in clauses (a) through (g) of the Standstill. For the avoidance\nof\ndoubt, TPG's related or managed portfolio companies and managers which have not received Evaluation Material of Immucor and which have not\nbeen made aware of a Possible Transaction by TPG or TPG's Representatives shall be deemed not to be affiliates of TPG for purposes of the\nimmediately preceding sentence.\n8. This letter agreement does not constitute or create any obligation on the part of either Party or its Representatives to provide any\nparticular Evaluation Material to the other Party. Although the Disclosing Party has endeavored to include in the Evaluation Material information\nknown to it which it believes to be relevant for the purpose of the Receiving Party's investigation, the Receiving Party understands and\nacknowledges that none of the Disclosing Party or its affiliates or Representatives have made or make any representation or warranty, express or\nimplied, as to the accuracy or completeness of the Evaluation Material. The Receiving Party agrees that none of the Disclosing Party or its affiliates\nor Representatives shall have any liability to the Receiving Party or any of its Representatives resulting from the selection, use or content of the\nEvaluation Material by the Receiving Party or its Representatives.\n9. Upon the Disclosing Party's written request, the Receiving Party shall, and shall cause its Representatives to, promptly, and in any\nevent within ten business days after such request, deliver to the Disclosing Party or, at the Receiving Party's option, destroy all written Evaluation\nMaterial and any other written materials constituting Evaluation Material without retaining, in whole or in part, any copies, extracts or other\nreproductions (whatever the form or storage medium) of such materials, and shall certify the return or the destruction (as the case may be) of such\nmaterials in writing to the Disclosing Party; provided, however, that the decision of whether to deliver to the Disclosing Party or destroy any written\nEvaluation Material furnished by or on behalf of the Disclosing Party relating to any litigation or Department of Justice, FDA or other government\ninvestigation, action or inquiry ("Restricted Evaluation Material") shall be at the option of the Disclosing Party. To the extent any Evaluation\nMaterial (or Restricted Evaluation Material) has been incorporated into materials developed by the Receiving Party or its Representatives, the\nReceiving Party shall, and shall ensure that its Representatives, destroy such materials promptly, and in any event within ten business days after the\nDisclosing Party's written request to destroy such materials. Notwithstanding the foregoing, (i) the Receiving Party and its Representatives that are\nattorneys, financial advisors, accounting firms, lenders or other consultants may retain, solely for compliance purposes, copies of the Evaluation\nMaterial if such party determines after consulting with counsel that such retention is necessary to comply with law or regulation and (ii) the\nReceiving Party and its Representatives shall not be required to use more than commercially reasonable efforts to expunge any Evaluation Material\nstored\nTPG Capital, L.P.\nMay 27, 2011\nPage 6\nelectronically on back up servers that are routinely overwritten. Notwithstanding the return or destruction of the Evaluation Material, the Receiving\nParty and its Representatives will continue to be bound by their obligations under this letter agreement during the term hereof.\n10. Each Party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of\nthis letter agreement by the other Party or such other Party's affiliates or Representatives and that, in the event of any breach or threatened breach\nhereof, (a) the non-breaching Party shall be entitled to injunctive and other equitable relief, without proof of actual damages, (b) the breaching Party\nshall not plead in defense thereto that there would be an adequate remedy at law, and (c) the breaching Party agrees to waive, and to use\nits\nreasonable\nbest\nefforts\nto\ncause\nits\nRepresentatives\nto\nwaive,\nany\napplicable\nright\nor\nrequirement\nthat\na\nbond\nbe\nposted\nby\nthe\nnon-breaching\nParty.\nSuch remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law\nor in equity.\n11. Each Party agrees that unless and until a definitive agreement between the Parties with respect to a Possible Transaction has been\nexecuted and delivered, neither Party nor any Representative of either Party will be under any legal obligation of any kind whatsoever by virtue of\nthis or any written or oral expression with respect to any Possible Transaction except, in the case of this letter agreement, for the matters specifically\nagreed to herein, and each Party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with any\nPossible Transaction. For purposes of this letter agreement, the term "definitive agreement" does not include an executed letter of intent or any other\npreliminary written agreement (including drafts or other documents that are exchanged relating to a Possible Transaction), nor does it include any\noral acceptance of an offer or bid by either Party. The agreement set forth in this paragraph may be modified or waived only pursuant to a separate\nwriting (a) expressly so modifying or waiving such agreement and (b) executed by the Parties.\n12. If any term or provision of this letter agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the\nremainder of the terms and provisions of this letter agreement shall remain in full force and effect and shall in no way be affected, impaired or\ninvalidated.\n13. No waiver of any provision of this letter agreement, or of a breach hereof, shall be effective unless it is expressly stated in a writing\nsigned by the Party waiving the provision or the breach hereof. No waiver of a breach of this letter agreement (whether express or implied) shall\nconstitute a waiver of a subsequent breach hereof. Each Party understands and agrees that no failure or delay by the other Party in exercising any\nright, power or privilege under this letter agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any\nother or future exercise of any right, power or privilege hereunder.\n14. This letter agreement shall be governed by and construed in accordance with the laws of the State of New York.\nTPG Capital, L.P.\nMay 27, 2011\nPage7\n15. This letter agreement shall be binding upon the Parties and upon their respective successors and permitted assigns. Neither Party is\npermitted to assign any of its rights or delegate any of its duties under this letter agreement without the prior written consent of the other Party, and\nany attempt to do SO without such consent shall be void.\n16. This letter agreement shall expire and cease to have any force or effect on the earlier of (a) the date that is the second anniversary of\nthe date of this letter agreement and (b) the date on which the Possible Transaction is consummated.\n17. Effective as of the date first set forth above, this letter agreement supersedes and replaces the prior Confidentiality Agreement\nbetween the Parties dated May 5, 2011.\n18. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall\nconstitute the same agreement. One or more counterparts of this letter agreement may be delivered by telecopier or PDF electronic transmission,\nwith the intention that they shall have the same effect as an original counterpart hereof.\n19. Immucor agrees that neither Immucor nor any of its Representatives will share with any other person (including, without limitation,\nany\nother potential participants in a transaction similar to the Possible Transaction) any analysis or other work product prepared by TPG or any of its\nRepresentatives in connection with the Possible Transaction.\nVery truly yours,\nImmucor, Inc.\nBy: /s/ Philip H. Moise\nPhilip H. Moise\nEVP & General Counsel\nTPG Capital, L.P.\nMay 27, 2011\nPage 8\nConfirmed and Agreed to:\nTPG Capital, L.P.\nBy: TPG Capital Advisors, LLC\nBy:\n/s/ Ronald Cami\nName: Ronald Cami\nTitle: Vice President\nDate: May 27, 2011	EX-99.(D)(2) 9 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nMay 27, 2011\nCONFIDENTIAL\nTPG Capital, L.P.\n301 Commerce Street\nSuite 3300\nFort Worth, TX 76102\nAttention: Ronald Cami, Vice President\nLadies and Gentlemen:\nTPG Capital, L.P., a Texas limited partnership (“TPG”), and Immucor, Inc., a Georgia corporation (“Immucor”), each have expressed\ninterest in discussing steps that could lead to a negotiated transaction. TPG and Immucor are hereafter sometimes referred to individually as a\n“Party” and collectively as the “Parties”.\nThis letter agreement sets forth the Parties’ agreement and understanding with respect to the disclosure by a Party (the “Disclosing\nParty”) of certain of its confidential information regarding itself and its businesses to the other Party (the “Receiving Party”). As a condition to the\nDisclosing Party furnishing the Receiving Party with such information, the Receiving Party agrees to treat any information, whether written or oral,\nconcerning the Disclosing Party (whether prepared by the Disclosing Party, its advisors or otherwise) that is furnished to the Receiving Party,\nwhether before or after the date hereof, by or on behalf of the Disclosing Party regardless of whether such information is identified as “confidential”\n(herein collectively referred to as the “Evaluation Material”) in accordance with the provisions of this letter agreement and to take or abstain from\ntaking certain other actions herein set forth. The Receiving Party recognizes and acknowledges the competitive value of the Evaluation Material and\nthe damage that could result to the Disclosing Party if any of the Evaluation Material was used or disclosed except as authorized by this letter\nagreement.\nFor purposes of this letter agreement, the term “Evaluation Material” includes, without limitation, all notes, files, analyses, compilations,\nspreadsheets, data, reports, studies, interpretations or other documents relating to (a) technology for use with blood and blood component products,\n(b) blood grouping, typing and genotyping and related instrumentation, (c) nucleic acid testing of infectious diseases for blood screening and related\ninstrumentation, (d) existing products, products in development, and intellectual property (whether owned or licensed), (e) market sizes, market\nshare, growth potential, market development plans and strategy, (f) financial statements, financial projections and related financial analysis,\n(g) litigation, investigations and other judicial or administrative proceedings, (h) vendors, suppliers, customers, distributors and other commercial\nrelationships, and (i) any other aspects of the Disclosing Party’s business, furnished to the Receiving Party or its directors, officers, employees,\nagents, advisors (including, without limitation, attorneys, accountants, consultants and financial advisors) and lenders and other sources of debt or\nequity financing (collectively, the “Representatives”) or prepared by the Receiving Party or its Representatives to the extent such materials reflect or\nare based upon, in whole or in part, the Evaluation Material or the Receiving\nTPG Capital, L.P.\nMay 27, 2011\nPage 2\nParty’s review, or interest in, the Disclosing Party. Notwithstanding the foregoing, Ron Labrum shall be deemed to be a Representative of TPG.\nNotwithstanding the preceding sentence, the term “Evaluation Material” does not include information that (i) is or becomes available to the\nReceiving Party on a nonconfidential basis from a source other than the Disclosing Party or its Representatives (provided that such source is not,\nafter reasonable inquiry, known to the Receiving Party to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation to, the Disclosing Party or its Representatives that prohibits such disclosure), (ii) is or becomes generally available to the public other than\nas a result of a disclosure by the Receiving Party or its Representatives in violation of this letter agreement, or (iii) has been or is independently\ndeveloped by the Receiving Party or its Representatives without the use of the Evaluation Material or in violation of the terms of this letter\nagreement.\n1. The Receiving Party hereby agrees that the Evaluation Material will be kept confidential and used solely for the purpose of evaluating\nand negotiating a possible negotiated transaction between the Parties and/or one or more affiliates and/or subsidiaries of the Parties (a “Possible\nTransaction”); provided, however, that, subject to the last sentence of this paragraph 1, the Evaluation Material may be disclosed (a) to\nRepresentatives who need to know such information for the sole purpose of evaluating and negotiating a Possible Transaction and (b) as the\nDisclosing Party may otherwise consent in writing. All such Representatives shall be informed by the Receiving Party of the confidential nature of\nthe Evaluation Material and of the terms of this letter agreement, and the Receiving Party shall cause all such Representatives to agree to keep the\nEvaluation Material strictly confidential and to abide by the terms hereof to the same extent as if they were parties to this letter agreement; provided,\nhowever, that the restrictions set forth in paragraphs 6 and 7 shall not apply to the Receiving Party’s agents and advisors (including, without\nlimitation, attorneys, accountants, consultants and financial advisors). The Receiving Party agrees to be responsible for any breaches of, or failures to\ncomply with, any of the provisions of this letter agreement by it or any of its Representatives, provided that the Receiving Party shall not be\nresponsible for any of its Representatives that have entered into, or that subsequently enter into, any separate confidentiality agreement with the\nDisclosing Party containing provisions mutually acceptable to the parties thereto. The Receiving Party further agrees that the Disclosing Party\nreserves the right to adopt additional specific procedures to protect the confidentiality of certain sensitive Evaluation Material, provided that the\nReceiving Party shall not be obligated to comply with such procedures until such time as the Disclosing Party has provided the Receiving Party with\nwritten notice of such procedures. Notwithstanding anything in this letter agreement to the contrary (including the definition of “Representatives”),\nthe Receiving Party hereby agrees that it will not, and will cause its Representatives not to, (i) contact or check conflicts with any potential lenders or\nother sources of debt or equity financing with respect to the Possible Transaction or (ii) directly or indirectly, share the Evaluation Material with or\nenter into any agreement, arrangement or understanding, or any discussions which could reasonably be expected to lead to such an agreement,\narrangement or understanding, with any potential lenders or other sources of debt or equity financing, in each case without the prior written consent\nof Immucor and only upon such person executing a confidentiality agreement in favor of Immucor with terms and conditions satisfactory to\nImmucor.\nTPG Capital, L.P.\nMay 27, 2011\nPage 3\n2. Without the prior written consent of the other Party, except as required by applicable law, regulation, legal process or stock exchange\nregulations (in which case the Party seeking to make such disclosure will use its reasonable best efforts to notify the other Party in advance of such\nproposed disclosure), neither Party will, and each Party will cause its Representatives not to, disclose to any person (a) the fact that investigations,\ndiscussions or negotiations are taking place or have taken place concerning a Possible Transaction, (b) any of the terms, conditions or other facts\nwith respect to any such Possible Transaction, including the status thereof or the fact that the other Party is considering or has considered such a\nPossible Transaction, or (c) that this letter agreement exists, or that Evaluation Material has been requested or made available to it or its\nRepresentatives. The term “person” as used in this letter agreement shall be interpreted broadly to include any corporation, company, governmental\nagency or body, entity, partnership, group or individual.\n3. Each Party hereby acknowledges that it and its Representatives are aware that the United States securities laws generally prohibit any\nperson who has material, non-public information concerning a company from purchasing or selling securities of such company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor sell such securities.\n4. Notwithstanding the foregoing, in the event the Receiving Party or any of its Representatives receives a request or is required by\napplicable law, regulation or legal process (including by deposition, interrogatory, request for documents, subpoena, civil investigative demand or\nsimilar process) to disclose all or any part of the Evaluation Material, the Receiving Party or its Representatives, as the case may be, agree to\n(a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such request or requirement (to the extent such\nnotification is legally permitted), (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such\nrequest or requirement, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other appropriate\nremedy (if the Disclosing Party chooses to seek such an order or remedy, in its sole discretion). In the event that such protective order or other\nremedy is not sought or obtained, the Receiving Party or its Representatives, as the case may be, may disclose only that portion of the Evaluation\nMaterial which the Receiving Party or its Representatives, as the case may be, are advised by outside counsel in writing is legally required to be\ndisclosed, and the Receiving Party or its Representatives shall exercise reasonable best efforts to obtain assurance that confidential treatment will be\naccorded such Evaluation Material.\n5. Unless otherwise agreed to by the Parties in writing, (a) all communications regarding the Possible Transaction will be submitted or\ndirected exclusively to the individuals set forth in Exhibit A to this letter agreement and (b) each Party agrees not to directly or indirectly contact or\ncommunicate with any other executive or employee of the other Party concerning a Possible Transaction or to seek any information in connection\ntherewith from any such person.\n6. Each Party agrees that, for a period of eighteen months after the date hereof, neither it nor any of its affiliates (including its related or\nmanaged portfolio companies\nTPG Capital, L.P.\nMay 27, 2011\nPage 4\nand managers) who in each case have received Evaluation Material of the other Party or who such Party or such Party’s Representatives have made\naware of a Possible Transaction will, directly or indirectly, solicit for employment or employ, or cause to leave the employ of the other Party, any\nindividual serving as (a) an officer of the other Party, or (b) any employee of the other Party with whom a Party has had substantive contact, or who\nis specifically identified to a Party, during a Party’s investigation of such other Party and its business, in each case without obtaining the prior written\nconsent of the other Party; provided, however, that the foregoing provision shall not preclude a Party or such of its affiliates from making good faith\ngeneralized solicitations for employees (not targeted at employees of the other Party or any of its controlled affiliates) through advertisements or\nsearch firms and hiring any persons solely resulting through such solicitations provided that neither such Party nor any of its Representatives\nencourages or advises such firm to approach any such employee.\n7. TPG agrees that, for a period that is the shorter of (a) eighteen (18) months after the date hereof or (b) twelve (12) months after the\ndate on which discussions between the Parties regarding a Possible Transaction cease, neither it nor any of its directors, officers, employees or\naffiliates (including its related or managed portfolio companies and managers which have received Evaluation Material of Immucor or which have\nbeen made aware of a Possible Transaction by TPG or TPG’s Representatives) will, unless specifically invited in writing by the board of directors of\nImmucor, acting by resolution approved by a majority of all members of the board, directly or indirectly, in any manner (TPG’s obligations pursuant\nto this paragraph being, the “Standstill”): (a) acquire, offer or propose to acquire, solicit an offer to sell or agree to acquire, directly or indirectly,\nalone or in concert with others, by purchase or otherwise, any direct or indirect beneficial interest in any voting or other securities or direct or\nindirect rights, warrants or options to acquire, or securities convertible into or exchangeable for, any voting or other securities of Immucor or any of\nits subsidiaries (collectively, the “Company”), (b) make, or in any way participate in, directly or indirectly, alone or in concert with others, any\n“solicitation” of “proxies” to vote (as such terms are used in the proxy rules of the Securities and Exchange Commission promulgated pursuant to\nSection 14 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), whether subject to or exempt from the proxy rules, or seek to\nadvise or influence in any manner whatsoever any person or entity with respect to the voting of any voting securities of the Company, (c) form, join\nor any way participate in a “group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to any voting or other securities of the\nCompany, (d) acquire, offer to acquire or agree to acquire, directly or indirectly, alone or in concert with others, by purchase, exchange or otherwise,\n(i) any of the assets, tangible and intangible, of the Company or (ii) direct or indirect rights, warrants or options to acquire any assets of the\nCompany, (e) arrange, or in any way participate, directly or indirectly, in any financing for the purchase of any voting or other securities or securities\nconvertible or exchangeable into or exercisable for any voting or other securities or assets of the Company, (f) otherwise act, alone or in concert with\nothers, to seek to propose to the Company or any of its shareholders any merger, business combination, share exchange, consolidation, sale,\nrestructuring, reorganization, recapitalization or other transaction involving the Company or otherwise seek, alone or in concert with others, to\ncontrol, change or influence the management, board of directors or policies of the Company or nominate any person as a director who is not\nTPG Capital, L.P.\nMay 27, 2011\nPage 5\nnominated by the then incumbent directors, or propose any matter to be voted upon by the shareholders of the Company, (g) make any request or\nproposal to amend, waive or terminate any provision of this Standstill or seek permission to or make any public announcement with respect to any\nprovision of the Standstill, or (h) announce an intention to do, or enter into any arrangement or understanding with others to do, any of the actions\nrestricted or prohibited under clauses (a) through (g) of this Standstill, or take any action that would reasonably be expected to result in the Company\nhaving to make a public announcement regarding any of the matters referred to in clauses (a) through (g) of the Standstill. For the avoidance of\ndoubt, TPG’s related or managed portfolio companies and managers which have not received Evaluation Material of Immucor and which have not\nbeen made aware of a Possible Transaction by TPG or TPG’s Representatives shall be deemed not to be affiliates of TPG for purposes of the\nimmediately preceding sentence.\n8. This letter agreement does not constitute or create any obligation on the part of either Party or its Representatives to provide any\nparticular Evaluation Material to the other Party. Although the Disclosing Party has endeavored to include in the Evaluation Material information\nknown to it which it believes to be relevant for the purpose of the Receiving Party’s investigation, the Receiving Party understands and\nacknowledges that none of the Disclosing Party or its affiliates or Representatives have made or make any representation or warranty, express or\nimplied, as to the accuracy or completeness of the Evaluation Material. The Receiving Party agrees that none of the Disclosing Party or its affiliates\nor Representatives shall have any liability to the Receiving Party or any of its Representatives resulting from the selection, use or content of the\nEvaluation Material by the Receiving Party or its Representatives.\n9. Upon the Disclosing Party’s written request, the Receiving Party shall, and shall cause its Representatives to, promptly, and in any\nevent within ten business days after such request, deliver to the Disclosing Party or, at the Receiving Party’s option, destroy all written Evaluation\nMaterial and any other written materials constituting Evaluation Material without retaining, in whole or in part, any copies, extracts or other\nreproductions (whatever the form or storage medium) of such materials, and shall certify the return or the destruction (as the case may be) of such\nmaterials in writing to the Disclosing Party; provided, however, that the decision of whether to deliver to the Disclosing Party or destroy any written\nEvaluation Material furnished by or on behalf of the Disclosing Party relating to any litigation or Department of Justice, FDA or other government\ninvestigation, action or inquiry (“Restricted Evaluation Material”) shall be at the option of the Disclosing Party. To the extent any Evaluation\nMaterial (or Restricted Evaluation Material) has been incorporated into materials developed by the Receiving Party or its Representatives, the\nReceiving Party shall, and shall ensure that its Representatives, destroy such materials promptly, and in any event within ten business days after the\nDisclosing Party’s written request to destroy such materials. Notwithstanding the foregoing, (i) the Receiving Party and its Representatives that are\nattorneys, financial advisors, accounting firms, lenders or other consultants may retain, solely for compliance purposes, copies of the Evaluation\nMaterial if such party determines after consulting with counsel that such retention is necessary to comply with law or regulation and (ii) the\nReceiving Party and its Representatives shall not be required to use more than commercially reasonable efforts to expunge any Evaluation Material\nstored\nTPG Capital, L.P.\nMay 27, 2011\nPage 6\nelectronically on back up servers that are routinely overwritten. Notwithstanding the return or destruction of the Evaluation Material, the Receiving\nParty and its Representatives will continue to be bound by their obligations under this letter agreement during the term hereof.\n10. Each Party acknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of\nthis letter agreement by the other Party or such other Party’s affiliates or Representatives and that, in the event of any breach or threatened breach\nhereof, (a) the non-breaching Party shall be entitled to injunctive and other equitable relief, without proof of actual damages, (b) the breaching Party\nshall not plead in defense thereto that there would be an adequate remedy at law, and (c) the breaching Party agrees to waive, and to use its\nreasonable best efforts to cause its Representatives to waive, any applicable right or requirement that a bond be posted by the non-breaching Party.\nSuch remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law\nor in equity.\n11. Each Party agrees that unless and until a definitive agreement between the Parties with respect to a Possible Transaction has been\nexecuted and delivered, neither Party nor any Representative of either Party will be under any legal obligation of any kind whatsoever by virtue of\nthis or any written or oral expression with respect to any Possible Transaction except, in the case of this letter agreement, for the matters specifically\nagreed to herein, and each Party hereby waives, in advance, any claims (including, without limitation, breach of contract) in connection with any\nPossible Transaction. For purposes of this letter agreement, the term “definitive agreement” does not include an executed letter of intent or any other\npreliminary written agreement (including drafts or other documents that are exchanged relating to a Possible Transaction), nor does it include any\noral acceptance of an offer or bid by either Party. The agreement set forth in this paragraph may be modified or waived only pursuant to a separate\nwriting (a) expressly so modifying or waiving such agreement and (b) executed by the Parties.\n12. If any term or provision of this letter agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the\nremainder of the terms and provisions of this letter agreement shall remain in full force and effect and shall in no way be affected, impaired or\ninvalidated.\n13. No waiver of any provision of this letter agreement, or of a breach hereof, shall be effective unless it is expressly stated in a writing\nsigned by the Party waiving the provision or the breach hereof. No waiver of a breach of this letter agreement (whether express or implied) shall\nconstitute a waiver of a subsequent breach hereof. Each Party understands and agrees that no failure or delay by the other Party in exercising any\nright, power or privilege under this letter agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any\nother or future exercise of any right, power or privilege hereunder.\n14. This letter agreement shall be governed by and construed in accordance with the laws of the State of New York.\nTPG Capital, L.P.\nMay 27, 2011\nPage7\n15. This letter agreement shall be binding upon the Parties and upon their respective successors and permitted assigns. Neither Party is\npermitted to assign any of its rights or delegate any of its duties under this letter agreement without the prior written consent of the other Party, and\nany attempt to do so without such consent shall be void.\n16. This letter agreement shall expire and cease to have any force or effect on the earlier of (a) the date that is the second anniversary of\nthe date of this letter agreement and (b) the date on which the Possible Transaction is consummated.\n17. Effective as of the date first set forth above, this letter agreement supersedes and replaces the prior Confidentiality Agreement\nbetween the Parties dated May 5, 2011.\n18. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall\nconstitute the same agreement. One or more counterparts of this letter agreement may be delivered by telecopier or PDF electronic transmission,\nwith the intention that they shall have the same effect as an original counterpart hereof.\n19. Immucor agrees that neither Immucor nor any of its Representatives will share with any other person (including, without limitation,\nany other potential participants in a transaction similar to the Possible Transaction) any analysis or other work product prepared by TPG or any of its\nRepresentatives in connection with the Possible Transaction.\nVery truly yours,\nImmucor, Inc.\nBy: /s/ Philip H. Moise\nPhilip H. Moise\nEVP & General Counsel\nTPG Capital, L.P.\nMay 27, 2011\nPage 8\nConfirmed and Agreed to:\nTPG Capital, L.P.\nBy: TPG Capital Advisors, LLC\nBy: /s/ Ronald Cami\nName: Ronald Cami\nTitle: Vice President\nDate: May 27, 2011
+ad3e097afaa361cfc8e6882ab6c12d24.pdf	jurisdiction party	EXHIBIT B\nTO\nBROKERAGE AGREEMENT\nForm of Confidentiality Agreement between Company and Broker\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is made as of the\nday of\n, 2001, by and between, ChoiceTel Communications, Inc., a Minnesota corporation (the "Company") , and Wimbish Riteway Realtors, a Florida\ncorporation (the "Recipient") .\nIn connection with the engagement of Recipient as brokerage agent pursuant to that certain Brokerage Agreement of even date herewith (the "Brokerage Agreement") between the Recipient and the Company,\nthe Company is prepared to make available to the Recipient certain information with respect to the Company which is non-public, confidential or proprietary in nature. As a condition to furnishing such information to\nthe Recipient, the Company requires and the Recipient agrees that any information concerning the Company (whether prepared by the Company, its advisors or otherwise) which is furnished to the Recipient by or on\nbehalf of the Company (whether before or after the date of this Agreement, whether furnished orally or in writing or gathered by inspection, and regardless of whether or not specifically marked or identified as\n"c onfidential") (the "Confidential Material") shall be safeguarded and treated as confidential in accordance with the provisions of this Agreement. The term "Confidential Material" does not include information which\n(a) is or becomes generally available to the public other than by disclosure by the Recipient, (b) was or becomes available to the Recipient on a non-confidential basis from a third party who, to the best of the\nRecipient's knowledge, was not under an obligation of confidentiality to the Company, or (c) was or is independently developed by the Recipient without reference to the Confidential Material.\n1. Use of Confidential Material. The Recipient agrees that it shall use the Confidential Material solely for the purpose of performing Recipient's obligations under the Brokerage Agreement and not for any other\npurpose. The Recipient further agrees that it shall not take, or fail to take, any action that would allow, assist or permit any other person or entity to use the Brokerage Material in a manner that, if so used by the\nRecipient, would be in violation of any of the terms of this Agreement.\n2. Non-Disclosure of Confidential Material. The Recipient agrees that the Confidential Material shall be kept confidential by it and its Representatives, and that the Recipient shall not disclose any of the\nConfidential Material in any manner whatsoever except (a) to those directors, officers, employees, consultants, auditors or counsel of the Recipient (the "Representatives") who need to know such information for\npurposes directly relating to the Brokerage Agreement, or (b) with the prior written consent of the Company. The Recipient agrees to expressly advise such Representatives that the information is to be kept\nconfidential, and such Representatives shall agree to keep such information confidential and abide by the terms of this Agreement.\n3. Legal Proceedings. In the event that Recipient is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other process or\nrequirement of law) to disclose (i) all or any part of the Confidential Material or (ii) any information relating to its opinion, judgment or recommendations concerning the Company, its affiliates or subsidiaries as\ndeveloped from Confidential Material, Recipient will provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order, other appropriate\nremedy or waive Recipient's compliance with the provisions of this Agreement. If, failing the entry of a protective order or other appropriate remedy or the receipt of a waiver hereunder, disclosure of all or any part of\nthe Confidential Material is required, Recipient may disclose that portion of the Confidential Material which, upon advise of counsel, Recipient is compelled to disclose. In any event, Recipient will not oppose action by\nthe Company to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded to the Confidential Material.\n4. Return of Confidential Material. Upon termination of the Brokerage Agreement, the Recipient and its Representatives shall promptly deliver to the Company all written Confidential Material (and copies\nthereof) and all information derived therefrom. At any time upon the written request of the Company for any reason, the Recipient shall promptly deliver to the Company (or certify the destruction of) all Confidential\nMaterial (and all copies thereof) furnished to the Recipient or its Representatives by or on behalf of the Company pursuant to this Agreement.\n5. Disclaimer. Neither the Company nor its representatives makes any representation or warranty as to the accuracy or completeness of the Confidential Material. Neither the Company nor its representatives\nshall have any liability to the Recipient resulting from the use of the Confidential Material.\n6. Remedies. The parties agree that money damages would not be a sufficient remedy for any breach of this Agreement and that the Company shall be entitled to equitable relief, including injunction and specific\nperformance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach by the Recipient of this Agreement but shall be in addition to all other remedies available\nat law or equity.\n7. General Provisions.\na. No failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise\nthereof or the exercise of any right, power or privilege.\nb. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota.\nc. This Agreement shall be binding and inure to the benefit of the parties hereto and their respective successors and assigns.\nd. This Agreement shall constitute the entire agreement between the parties hereto with regard to the subject matter hereof. No modification, amendment or waiver shall be binding without the written consent\nof the parties. Each party hereto represents and warrants that it has the full power and authority to enter into this Agreement and to perform its obligations hereunder.\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.\nRECIPIENT:\nWIMBISH RITEWAY REALTORS\nBy\nIts\nCOMPANY:\nCHOICETEL COMMUNICATIONS, INC .\nBy\nIts	EXHIBIT B\nTo\nBROKERAGE AGREEMENT\nForm of Confidentiality Agreement between Company and Broker\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is made as of the day of , 2001, by and between, ChoiceTel Communications, Inc., a Minnesota corporation (the "C ompany"), and Wimbish Riteway Realtors, a Florida\ncorporation (the "Recipient").\nIn connection with the engagement of Recipient as brokerage agent pursuant to that certain Brokerage Agreement of even date herewith (the "Brokerage Agreement") between the Recipient and the Company,\nthe Company is prepared to make available to the Recipient certain information with respect to the Company which is non-public, confidential or proprietary in nature. As a condition to furnishing such information to\nthe Recipient, the Company requires and the Recipient agrees that any information concerning the Company (whether prepared by the Company, its advisors or otherwise) which is furnished to the Recipient by or on\nbehalf of the Company (whether before or after the date of this Agreement, whether furnished orally or in writing or gathered by inspection, and regardless of whether or not specifically marked or identified as\n"confidential") (the "Confidential Material") shall be safeguarded and treated as confidential in accordance with the provisions of this Agreement. The term "Confidential Material" does not include information which\n(a) is or becomes generally available to the public other than by disclosure by the Recipient, (b) was or becomes available to the Recipienton a non-confidential basis from a third party who, to the best of the\nRecipient‘s knowledge, was not under an obligation of confidentiality to the Company, or (c) was or is independently developed by the Recipient without reference to the Confidential Material.\n1. Use of Confidential Material. The Recipient agrees that it shall use the Confidential Material solely forthe purpose of performing Recipient's obligations under the Brokerage Agreement and not for any other\npurpose. The Recipientfurther agrees that itshalI not take, orfail to take, any action that would allow, assist or permit any other person or entity to use the Brokerage Material in a manner that, if so used by the\nRecipient, would be in violation of any of the terms of this Agreement.\n2. Non-Disclosure ofConfidential Material. The Recipient agrees that the Confidential Material shall be kept confidential by it and its Representatives, and that the Recipient shall notdisclose any of the\nConfidential Material in any manner whatsoever except (a) to those directors, officers, employees, consultants, auditors or counsel of the Recipient (the "Representatives") who need to know such information for\npurposes directly relating to the Brokerage Agreement, or (b) with the prior written consent of the Company. The Recipient agrees to expressly advise such Representatives that the information is to be kept\nconfidential, and such Representatives shall agree to keep such information confidential and abide by the terms of this Agreement.\n3. Legal Proceedings. In the event that Recipient is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other process or\nrequirement of law) to disclose (i) all or any part of the Confidential Material or (ii) any information relating to its opinion, judgment or recommendations concerning the Company, its affiliates or subsidiaries as\ndeveloped from Confidential Material, Recipient will provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order, other appropriate\nremedy or waive Recipient's compliance with the provisions of this Agreement. If, failing the entry of a protective order or other appropriate remedy or the receipt of a waiver hereunder, disclosure of all or any part of\nthe Confidential Material is required, Recipient may disclose that portion of the Confidential Material which, upon advise of counsel, Recipient is compelled to disclose. In any event, Recipient will not oppose action by\nthe Company to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded to the Confidential Material.\n4. Return of Confidential Material. Upon termination of the Brokerage Agreement, the Recipientand its Representatives shall promptly deliver to the Company all written Confidential Material (and copies\nthereof) and all information derived therefrom. At any time upon the written request of the Company for any reason, the Recipient shall promptly deliver to the Company (or certify the destruction of) all Confidential\nMaterial (and all copies thereof) furnished to the Recipientor its Representatives by or on behalf of the Company pursuant to this Agreement.\n5. Disclaimer. Neither the Company nor its representatives makes any representation or warranty as to the accuracy or completeness of the Confidential Material. Neither the Company nor its representatives\nshall have any liability to the Recipient resulting from the use of the Confidential Material.\n6. Remedies. The parties agree that money damages would not be a sufficient remedy for any breach of this Agreement and that the Company shall be entitled to equitable relief, including injunction and specific\nperformance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach by the Recipient of this Agreement but shall be in addition to all other remedies available\natlaw orequity.\n7. General Provisions.\na. No failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other orfurther exercise\nthereof or the exercise of any right, power or privilege.\nb. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota.\nc. This Agreement shall be binding and inure to the benefit of the parties hereto and their respective successors and assigns.\nd. This Agreement shall constitute the entire agreement between the parties hereto with regard to the subject matter hereof. No modification, amendment or waiver shall be binding without the written consent\nof the parties. Each party hereto represents and warrants that it has the full power and authority to enter into this Agreement and to perform its obligations hereunder.\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date firstabove written.\nRECIPIENT: WIMBISH RITEWAY REALTORS\nBY\nCOMPANY: CHOICETELCOMMUNICATIONS,INC.\nBY	EXHIBIT B\nTO\nBROKERAGE AGREEMENT\nForm of Confidentiality Agreement between Company and Broker\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is made as of the\nday of\n2001, by and between, ChoiceTe Communications, Inc. a Minnesota corporation (the "Company"), and Wimbish Riteway Realtors, a Florida\ncorporation (the "Recipient").\nIn connection with the engagement of Recipient as brokerage agent pursuant to that certain Brokerage Agreement of even date herewith (the "Brokerage Agreement") between the Recipient and the\nCompany,\nthe Company is prepared to make available to the Recipient certain information with respect to the Company which is non-public, confidential or proprietary in nature. As a condition to furnishing such information to\nthe ecipient, the Company requires and the Recipient agrees that any information concerning the Company (whether prepared by the Company, its advisors or otherwise) which is furnished to the Recipient by or on\nbehalf of the Company (whether before or after the date of this Agreement, whether furnished orally or in writing or gathered by inspection, and regardless of whether or not specifically marked or identified as\n"confidential") (the "Confidential Material") shal be safeguarded and treated as confidential in accordance with the provisions of this Agreement. The term "Confidential Material" does not include information which\n(a)\nis or becomes generally available to the public other than by disclosure by the Recipient, (b) was or becomes available to the Recipient on a non-confidential basis from a third party who, to the best of the\nRecipient's knowledge, was not under an obligation of confidentiality to the Company, or (c) was or is independently developed by the Recipient without reference to the Confidentia Material.\n1.\nUse of Confidential Material. The Recipient agrees that it shal use the Confidential Material solely for the purpose of performing Recipient's obligations under the Brokerage Agreement and not for any other\npurpose. The Recipient further agrees that it shall not take, or fai to take, any action that would allow, assist or permit any other person or entity to use the Brokerage Material in a manner that, if so used by the\nRecipient, would be in violation of any of the terms of this Agreement.\n2.\nNon-Disclosure\nof\nConfidential Material. The ecipient agrees that the Confidential Material shal be kept confidential by it and its Representatives, and that the Recipient shall not disclose any of the\nConfidential Material in any manner whatsoever except (a) to those directors, officers, employees, consultants, auditors or counsel of the Recipient (the "Representatives") who need to know such information for\npurposes directly relating to the Brokerage Agreement, or (b) with the prior written consent of the Company. The Recipient agrees to expressly advise such Representatives that the information is to be kept\nconfidential, and such R Representatives shal agree to keep such information confidential and abide by the terms of this Agreement\n3. Legal Proceedings. In the event that R ecipient is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other process\nor\nrequirement of law) to disclose (i) all or any part of the Confidential Material or (ii) any information relating to its opinion, judgment or recommendations concerning the Company, its affiliates or subsidiaries as\ndeveloped from Confidential Material, Recipient will provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order, other appropriate\nremedy or waive Recipient's compliance with the provisions of this Agreement. if, failing the entry of a protective order or other appropriate remedy or the receipt of a waiver hereunder, disclosure of all or any part of\nthe Confidential Materia is required Recipient may disclose that portion of the Confidential Material which, upon advise of counsel, Recipient is compelled to disclose. In any event, Recipient will not\noppose\naction\nby\nthe Company to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment wil be accorded to the Confidential Material.\n4.\nReturn of Confidential Material. Upon termination of the Brokerage Agreement, the Recipient and its Representatives shall promptly deliver to the Company all written Confidential Material (and copies\nthereof) and all information derived therefrom. At any time upon the written request of the Company for any reason, the Recipient shall promptly deliver to the Company (or certify the destruction of) all Confidential\nMaterial (and all copies thereof) furnished to the Recipient or its Representatives by or on behalf of the Company pursuant to this Agreement\n5.\nDisclaimer. Neither the Company nor its representatives makes any representation or warranty as to the accuracy or completeness of the Confidential Material. Neither the Company nor its representatives\nshal have any liability to the Recipient resulting from the use of the Confidentia Material.\n6. Remedies. The parties agree that money damages would not be a sufficient remedy for any breach of this Agreement and that the Company shal be entitled to equitable relief, including injunction and specific\nperformance, as a remedy for any such breach Such remedies shall not be deemed to be the exclusive remedies for a breach by the Recipient of this Agreement but shall be in addition to all other remedies available\nat law or equity.\n7. General Provisions.\na. No failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or\nfurther\nexercise\nthereof or the exercise of any right, power or privilege.\nb. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota.\nC. This Agreement shall be binding and inure to the benefit of the parties hereto and their respective successors and assigns.\nd. This Agreement shall constitute the entire agreement between the parties hereto with regard to the subject matter hereof. No modification, amendment or waiver shall be binding without the written consent\nof the parties. Each party hereto represents and warrants that it has the full power and authority to enter into this Agreement and to perform its obligations hereunder.\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.\nRECIPIENT:\nWIMBISH RITEWAY REALTORS\nBy\nIts\nCHOICETEL COMMUNICATIONS, INC.\nCOMPANY:\nBy\nIts	EXHIBIT B\nTO\nBROKERAGE AGREEMENT\nForm of Confidentiality Agreement between Company and Broker\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is made as of the\nday of\n, 2001, by and between, ChoiceTel Communications, Inc., a Minnesota corporation (the "Company") , and Wimbish Riteway Realtors, a Florida\ncorporation (the "Recipient") .\nIn connection with the engagement of Recipient as brokerage agent pursuant to that certain Brokerage Agreement of even date herewith (the "Brokerage Agreement") between the Recipient and the Company,\nthe Company is prepared to make available to the Recipient certain information with respect to the Company which is non-public, confidential or proprietary in nature. As a condition to furnishing such information to\nthe Recipient, the Company requires and the Recipient agrees that any information concerning the Company (whether prepared by the Company, its advisors or otherwise) which is furnished to the Recipient by or on\nbehalf of the Company (whether before or after the date of this Agreement, whether furnished orally or in writing or gathered by inspection, and regardless of whether or not specifically marked or identified as\n"c onfidential") (the "Confidential Material") shall be safeguarded and treated as confidential in accordance with the provisions of this Agreement. The term "Confidential Material" does not include information which\n(a) is or becomes generally available to the public other than by disclosure by the Recipient, (b) was or becomes available to the Recipient on a non-confidential basis from a third party who, to the best of the\nRecipient's knowledge, was not under an obligation of confidentiality to the Company, or (c) was or is independently developed by the Recipient without reference to the Confidential Material.\n1. Use of Confidential Material. The Recipient agrees that it shall use the Confidential Material solely for the purpose of performing Recipient's obligations under the Brokerage Agreement and not for any other\npurpose. The Recipient further agrees that it shall not take, or fail to take, any action that would allow, assist or permit any other person or entity to use the Brokerage Material in a manner that, if so used by the\nRecipient, would be in violation of any of the terms of this Agreement.\n2. Non-Disclosure of Confidential Material. The Recipient agrees that the Confidential Material shall be kept confidential by it and its Representatives, and that the Recipient shall not disclose any of the\nConfidential Material in any manner whatsoever except (a) to those directors, officers, employees, consultants, auditors or counsel of the Recipient (the "Representatives") who need to know such information for\npurposes directly relating to the Brokerage Agreement, or (b) with the prior written consent of the Company. The Recipient agrees to expressly advise such Representatives that the information is to be kept\nconfidential, and such Representatives shall agree to keep such information confidential and abide by the terms of this Agreement.\n3. Legal Proceedings. In the event that Recipient is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other process or\nrequirement of law) to disclose (i) all or any part of the Confidential Material or (ii) any information relating to its opinion, judgment or recommendations concerning the Company, its affiliates or subsidiaries as\ndeveloped from Confidential Material, Recipient will provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order, other appropriate\nremedy or waive Recipient's compliance with the provisions of this Agreement. If, failing the entry of a protective order or other appropriate remedy or the receipt of a waiver hereunder, disclosure of all or any part of\nthe Confidential Material is required, Recipient may disclose that portion of the Confidential Material which, upon advise of counsel, Recipient is compelled to disclose. In any event, Recipient will not oppose action by\nthe Company to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded to the Confidential Material.\n4. Return of Confidential Material. Upon termination of the Brokerage Agreement, the Recipient and its Representatives shall promptly deliver to the Company all written Confidential Material (and copies\nthereof) and all information derived therefrom. At any time upon the written request of the Company for any reason, the Recipient shall promptly deliver to the Company (or certify the destruction of) all Confidential\nMaterial (and all copies thereof) furnished to the Recipient or its Representatives by or on behalf of the Company pursuant to this Agreement.\n5. Disclaimer. Neither the Company nor its representatives makes any representation or warranty as to the accuracy or completeness of the Confidential Material. Neither the Company nor its representatives\nshall have any liability to the Recipient resulting from the use of the Confidential Material.\n6. Remedies. The parties agree that money damages would not be a sufficient remedy for any breach of this Agreement and that the Company shall be entitled to equitable relief, including injunction and specific\nperformance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach by the Recipient of this Agreement but shall be in addition to all other remedies available\nat law or equity.\n7. General Provisions.\na. No failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise\nthereof or the exercise of any right, power or privilege.\nb. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota.\nc. This Agreement shall be binding and inure to the benefit of the parties hereto and their respective successors and assigns.\nd. This Agreement shall constitute the entire agreement between the parties hereto with regard to the subject matter hereof. No modification, amendment or waiver shall be binding without the written consent\nof the parties. Each party hereto represents and warrants that it has the full power and authority to enter into this Agreement and to perform its obligations hereunder.\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.\nRECIPIENT:\nWIMBISH RITEWAY REALTORS\nBy\nIts\nCOMPANY:\nCHOICETEL COMMUNICATIONS, INC .\nBy\nIts
+ad608ce99e4d07c363f5e6d414af7416.pdf	effective_date jurisdiction party	Exhibit 10.2\nRESTRICTIVE COVENANT and\nconfidentiality AGREEMENT\nNovember 1, 2018\nAs a condition of my employment with LSI Industries Inc. (“LSI”), and in consideration of my employment with LSI and the\ninducement award of stock options by LSI to me, I, James A. Clark, agree to the following provisions of this Restrictive Covenant\nand Confidentiality Agreement concerning my employment with LSI (“the Agreement”):\n1. AT -WILL EMPLOYMENT\nI understand and acknowledge that my employment with LSI is for no specified term and constitutes “At Will” employment.\nI also understand that any representation to the contrary is unauthorized and not valid unless in writing and signed by the chief\nhuman resources officer of LSI. Accordingly, I acknowledge that my employment relationship may be terminated at any time,\nwith or without good cause or for any or no cause, or for any reason or no reason at my option or at the option of LSI, with or\nwithout notice. I further acknowledge that LSI may modify job titles, salaries, and benefits from time to time as it deems\nappropriate or necessary.\n2. CONFIDENTIALITY\nA.\n“Confidential Information” means any data, information or material (whether in written, oral, graphic, electronic or\nother form) with respect to LSI’s past, current or anticipated business that is not generally known by the public or in the industry,\nincluding confidential or proprietary business information and trade secrets, whether or not such information is marked or\notherwise designated as confidential or restricted. Confidential Information does not include any information that: (a) is or\nbecomes part of the public domain or is or becomes publicly available without breach of this agreement by me; (b) I lawfully\nacquire from a source not under any non-use or confidentiality obligation regarding such information; (c) is disclosed to any third\nparty by or with the permission of LSI without confidentiality restrictions; or, (d) is independently developed by a person who has\nnot received, directly or indirectly, any Confidential Information from any source. Confidential Information does include, but is\nnot limited to:\n(i) Products and processes and their development and performance;\n(ii) Any scientific, engineering, or technical information used during the course of my employment at LSI;\n(iii) Computer software and firmware;\n(iv) Business and financial information, including names of and contact information for customers, prospective\ncustomers and suppliers;\n(v) Information relating to manufacturing, purchasing, sourcing, inventories, data processing, personnel, marketing,\nsales, pricing, costs and quotations; and\n(vi) Information regarding third parties or provided by third parties and known to LSI which LSI is obligated by\nstatute, regulation, license or other agreement not to disclose or to only use for limited purposes.\nB.\nNonuse and Nondisclosure. I agree that during and after my employment with LSI, I will hold in the strictest\nconfidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of Confidential Information, and I\nwill not (i) use the Confidential Information for any purpose whatsoever other than for the benefit of LSI in the course of my\nemployment, or (ii) disclose Confidential Information to any third party without the prior written authorization of my supervisor\nand in compliance with LSI policy regarding the transmittal of Confidential Information. Upon termination of my assignment, my\nemployment, or as requested by my supervisor, I will promptly return all materials containing Confidential Information and\ncopies thereof to LSI. If compelled to produce Confidential Information by applicable law, I shall provide prior written notice of\nat least seven business days to my supervisor. I agree that I obtain no license, copyright, title or any other ownership rights to any\nConfidential Information, and that as between LSI and me, LSI retains all Confidential Information as its sole property. I\nunderstand that my unauthorized use or disclosure of Confidential Information during my employment may lead to disciplinary\naction, up to and including immediate termination and legal action by LSI. I understand that my obligations under this section\nsurvive the termination of my employment.\nC. Notice of Immunity from Liability for Confidential Disclosure of a Trade Secret to the Government or in a Court Filing.\nNotwithstanding anything herein to the contrary, pursuant to the Federal Defend Trade Secrets Act of 2016, an individual may not\nbe held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made\n(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for\nthe purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a\nlawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for\nreporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret\ninformation in the court proceeding if the individual files any document containing the trade secret under seal and does not\ndisclose the trade secret except pursuant to court order. Nothing herein is intended, or should be construed, to affect the\nimmunities created by the Defend Trade Secrets Act of 2016.\nD. Former Employer. I agree that I will not, during my employment with LSI, improperly use or disclose any proprietary\ninformation of any former or concurrent employer or other person or entity, and that I will not bring onto the premises of LSI any\nunpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing\nby such employer, person or entity. I also represent and warrant that I am not subject to any agreements with any third person or\nentity that would limit or affect my ability to work for and on behalf of LSI; provided, however, that if I am subject to such an\nagreement, then I will strictly abide by such agreement.\n3. NON-COMPETITION AND NON-SOLICITATION\nIn consideration for LSI’s agreement to employ and compensate me, and/or continue to employ and compensate me, and\nLSI’s granting of access to me to Confidential Information, and for other good and valuable consideration, the sufficiency of\nwhich I acknowledge, I agree as follows:\n2\nA. By virtue of my employment with LSI, I acquired Confidential Information, as defined by this Agreement, and but for\nmy association with LSI, I would not have had access to the Confidential Information. The Confidential Information allows for\nLSI to have a competitive advantage. I acknowledge that if I disclose or use the Confidential Information, I will cause irreparable\nharm to LSI.\nB. For purposes of this Agreement, the “Non-Compete and Non-Solicit Period” means a period of 12 months following the\ntermination of my employment with LSI.\nC. For purposes of this Agreement, “Competitor” means any person or entity with which LSI competes in the lighting and\nlighting controls industries (including but not limited to Acuity Brands, Eaton / Cooper Lighting, Hubbell Lighting, Philips\nLighting, Cree, General Electric, H.E . Williams, Legrand, Leviton and Lutron) or graphics or digital signage industries (including\nbut not limited to Federal Heath, YESCO, Blair, Everbrite, ICON, Vomeal, Miller Zell, Persona, Sign Resource, Stratacache,\nAVI, Whitlock, Diversified, Tech Innovations, CCS, HB Comm, Sicom and Four Winds) and each of their affiliates, subsidiaries\nand related businesses operating in such industries.\nD. For purposes of this Agreement, “Customer” means any person or entity with which LSI has an ongoing business\nrelationship or a prospective business relationship for the 12 months prior to the date of this Agreement, including vendors,\nrepresentatives or suppliers.\nE. For purposes of this Agreement, “Competitive Activity” means directly or indirectly, individually or in combination\nwith others, engaging in any one or more of the following acts:\n(i) accepting employment with a Competitor;\n(ii) calling on, contacting, communicating with, or soliciting any Customer for the purpose of inducing them to\ndivert their business to another entity or business;\n(iii) interfering with any contract or other agreement that LSI may now or hereafter have, including, that would or\ncould in any way be injurious or detrimental to LSI’s image, business relationships or its business; or\n(iv) encouraging or soliciting any of LSI’s employees or agents to terminate or modify their relationships with LSI\nor hiring or engaging such persons for any purpose whatsoever. I acknowledge that this covenant is necessary to enable\nLSI to maintain a stable workforce.\nF. I agree to refrain from directly or indirectly engaging in any Competitive Activity, including assisting another to engage\nin any Competitive Activity, at all times during my employment with LSI and during the Non-Compete and Non-Solicit Period.\n3\nG. Recognizing that irreparable injury will result to LSI, its business and property if I were to breach any of the foregoing\ncovenants or my obligations as set forth in this Agreement, I agree that in the event of any such breach or threatened breach, LSI\nis entitled, in addition to any other remedies and damages available, to an injunction to restrain the violation or continued\nviolation of this Agreement by me. In the event any provision, restriction or part of this section of the Agreement shall be\ninvalidated, the remainder thereof shall nevertheless continue to be valid and fully enforceable.\nH. I understand and agree that this agreement is in addition to and does not limit my obligations under any LSI policy, or\nany statute, regulation or common law, regarding the matters covered above. I understand that a breach or violation of this\nagreement could subject me to disciplinary action, including termination or legal action, or both. I further understand that nothing\nin this agreement prevents me from giving truthful testimony or otherwise complying with applicable legal requirements.\nI. In the event any provision, restriction or part of this section of the Agreement shall be invalidated, the remainder thereof\nshall nevertheless continue to be valid and fully enforceable, and in the event any claims of any invalidity or unenforceability\nshall be predicated upon the temporal and/or geographic area covered thereby, it is expressly agreed that such provision shall\nthereby be deemed modified to the maximum geographic area and the maximum temporal duration.\n4. INTELLECTUAL PROPERTY\nI acknowledge and agree that all plans, designs, processes, research and development, original works of authorship, product\nknow-how and show-how, methodologies, techniques, inventions, discoveries, improvements, modifications, derivative works,\ncomputer programs, computer hardware and software, including source code and object code, algorithms and any other\nintellectual property, whether or not subject to patent or copyright protection, relating to the LSI’s business are the sole and\nexclusive property of LSI (“LSI Intellectual Property”). I shall promptly disclose all LSI Intellectual Property that I make,\ncreate, author, originate, conceive, develop or reduce to practice, either alone or jointly with others, at any time during my\nemployment with LSI, which are within or in any way related to the existing or contemplated scope of LSI’s business (all of\nwhich LSI Intellectual Property shall be deemed made during the employment relationship if made or conceived within twelve\n(12) months following termination of my employment). I shall assign, without additional consideration, and hereby irrevocably\nassign to LSI any and all rights, title and interest that I may have or acquire in LSI Intellectual Property and all patents,\ncopyrights, trademarks and other rights associated therewith.\nI shall cooperate with and assist LSI, as is reasonably required, to protect its interests in LSI Intellectual Property, including\nbut not limited to executing and filing any document requested by the LSI if it deems necessary to apply for any patent, copyright,\ntrademark or other proprietary right in any and all countries, or to convey any rights, title or interest therein to any of its\nnominees, successors or assigns. Notwithstanding anything herein to the contrary, nothing is intended to assign any of my rights\ntitles or interests in or to any patents, copyrights or trademarks, or applications therefor that was developed entirely outside of the\nemployment relationship with LSI, unless the patents, copyrights or trademarks, or applications therefor, or any other intellectual\nproperty: (i) relates to the business of LSI or to LSI’s actual or demonstrably anticipated research and development; or (ii) results\nfrom any work performed by me for LSI.\n4\n5. RETURN OF LSI MATERIALS\nUpon separation from employment with LSI, on LSI’s earlier request during my employment, or at any time subsequent to\nmy employment upon demand from LSI, I will immediately deliver to LSI, and will not keep in my possession, recreate, or\ndeliver to anyone else, any and all LSI property, including, but not limited to, Confidential Information, all devices and\nequipment belonging to LSI (including computers, handheld electronic devices, telephone equipment, and other electronic\ndevices), all tangible embodiments of the Inventions, all electronically stored information and passwords to access such property,\nLSI credit cards, records, data, notes, notebooks, reports, files, proposals, lists, correspondence, specifications, drawings,\nblueprints, sketches, materials, photographs, charts, any other documents and property, and reproductions of any of the foregoing\nitems. I also consent to an exit interview to confirm my compliance with the terms of this Agreement.\n6. NOTIFICATION OF NEW EMPLOYER\nIn the event that I leave the employ of LSI, I hereby grant consent to notification by LSI to my new employer about my rights\nand obligations under this Agreement. I also agree to disclose the existence and terms of this Agreement to any subsequent\npotential employer or principal who competes in any way with LSI for business, customers and/or employees no later than\nfourteen (14) days prior to the commencement of employment with that employer.\n7. MISCELLANEOUS\nA. Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the State of Ohio\nwithout regard to Ohio conflicts of law rules that may result in the application of the laws of any jurisdiction other than Ohio. To\nthe extent that any lawsuit is permitted under this Agreement, I hereby expressly consent to the personal and exclusive\njurisdiction and venue of the state and federal courts located in Hamilton County, Ohio for any lawsuit filed against me by LSI.\nB.\nAssignability. This Agreement will be binding upon my heirs, executors, assigns, administrators, and other legal\nrepresentatives, and will be for the benefit of LSI, its successors, and its assigns. There are no intended third-party beneficiaries to\nthis Agreement, except as may be expressly otherwise stated. Notwithstanding anything to the contrary herein, LSI may assign\nthis Agreement and its rights and obligations under this Agreement to any successor to all or substantially all of LSI’s relevant\nassets, whether by merger, consolidation, reorganization, reincorporation, conversion, sale of assets, sale of membership interests,\nstock or other equity interests, or otherwise.\nC. Entire Agreement. This Agreement sets forth the entire agreement and understanding between LSI and me with respect\nto the subject matter herein and supersedes all prior written and oral agreements, discussions, or representations between us,\nincluding, but not limited to, any representations made during my interview(s). I represent and warrant that I am not relying on\nany statement or representation not contained in this Agreement. Any subsequent change or changes in my duties, salary, or\ncompensation will not affect the validity or scope of this Agreement.\n5\nD. Headings. Headings are used in this Agreement for reference only and shall not be considered when interpreting this\nAgreement.\nE. Severability. If a court or other body of competent jurisdiction finds, or the Parties mutually believe, any provision of\nthis Agreement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent\npermissible so as to affect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.\nF. Modification, Waiver. No modification of or amendment to this Agreement, nor any waiver of any rights under this\nAgreement, will be effective unless in a writing signed by a manager or officer of LSI and me. Waiver by LSI of a particular\nbreach of any provision of this Agreement will not operate as a waiver of any other provision or subsequent breach.\nG. Survivorship. The rights and obligations of the parties to this Agreement will survive termination of my employment\nwith LSI.\n/s/ James A. Clark\nSignature\nJames A. Clark\nNovember 1, 2018\nLSI INDUSTRIES INC.\n/s/ Howard E. Japlon\nSignature\nHoward E. Japlon\nEVP, Human Resources & General Counsel\nNovember 1, 2018\n6	Exhibit 10.2\nRE STRICTIVE COVENANT and\nconfidentiality A G RE E M E NT\nNovember 1, 2018\nAs a condition of my employment with LSI Industries Inc. (”L SI”), and in consideration of my employment with LSI and the\ninducement award of stock options by LSI to me, I, James A. Clark, agree to the following provisions of this Restrictive Covenant\nand Confidentiality Agreement concerning my employment with LSI (”the Agreement”):\n1. AT-WILL EMPLOYMENT\nI understand and acknowledge that my employment with LSI is for no specified term and constitutes ”At Will” employment.\nI also understand that any representation to the contrary is unauthorized and not valid unless in writing and signed by the chief\nhuman resources officer of LSI. Accordingly, I acknowledge that my employment relationship may be terminated at any time,\nwith or without good cause or for any or no cause, or for any reason or no reason at my option or at the option of LSI, with or\nwithout notice. I further acknowledge that LSI may modify job titles, salaries, and benefits from time to time as it deems\nappropriate or necessary.\n2. C O NFIDENTIALITY\nA. ”Confidential Information” means any data, information or material (whether in written, oral, graphic, electronic or\nother form) with respect to LSI' s past, current or anticipated business that is not generally known by the public or in the industry,\nincluding confidential or proprietary business information and trade secrets, whether or not such information is marked or\notherwise designated as confidential or restricted. Confidential Information does not include any information that: (a) is or\nbecomes part of the public domain or is or becomes publicly available without breach of this agreement by me; (b) I lawfully\nacquire from a source not under any non-use or confidentiality obligation regarding such information; (c) is disclosed to any third\nparty by or with the permission of LSI without confidentiality restrictions; or, (d) is independently developed by a person who has\nnot received, directly or indirectly, any Confidential Information from any source. Confidential Information does include, but is\nnot limited to:\n(i) Products and processes and their development and performance;\n(ii) Any scientific, engineering, or technical information used during the course of my employment at LSI;\n(iii) Computer software and firmware;\n(iv) Business and financial information, including names of and contact information for customers, prospective\ncustomers and suppliers;\n(v) Information relating to manufacturing, purchasing, sourcing, inventories, data processing, personnel, marketing,\nsales, pricing, costs and quotations; and\n(vi) Information regarding third parties or provided by third parties and known to LSI which LSI is obligated by\nstatute, regulation, license or other agreement not to disclose or to only use for limited purposes.\nB. Nonuse and Nondisclosure. I agree that during and after my employment with LSI, I will hold in the strictest\nconfidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of Confidential lnfonnation, and I\nwill not (i) use the Confidential lnfonnation for any purpose whatsoever other than for the benefit of LSI in the course of my\nemployment, or (ii) disclose Confidential Information to any third party without the prior written authorization of my supervisor\nand in compliance with LSI policy regarding the transmittal of Confidential lnfonnation. Upon termination of my assignment, my\nemployment, or as requested by my supervisor, I will promptly return all materials containing Confidential Information and\ncopies thereof to LSI. If compelled to produce Confidential lnfonnation by applicable law, I shall provide prior written notice of\nat least seven business days to my supervisor. I agree that I obtain no license, copyright, title or any other ownership rights to any\nConfidential lnfonnation, and that as between LSI and me, LSI retains all Confidential lnfonnation as its sole property. I\nunderstand that my unauthorized use or disclosure of Confidential lnfonnation during my employment may lead to disciplinary\naction, up to and including immediate termination and legal action by LSI. I understand that my obligations under this section\nsurvive the termination of my employment.\nC. Notice of Immunity from Liability for Confidential Disclosure of a Trade Secret to the Government or in a Court Filing.\nNotwithstanding anything herein to the contrary, pursuant to the Federal Defend Trade Secrets A ct of 2016, an individual may not\nbe held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made\n(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for\nthe purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a\nlawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for\nreporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret\ninformation in the court proceeding if the individual files any document containing the trade secret under seal and does not\ndisclose the trade secret except pursuant to court order. Nothing herein is intended, or should be construed, to affect the\nimmunities created by the Defend Trade Secrets A ct of 2016.\nD. Former Employer. I agree that I will not, during my employment with LSI, improperly use or disclose any proprietary\ninformation of any former or concurrent employer or other person or entity, and that I will not bring onto the premises of LSI any\nunpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing\nby such employer, person or entity. I also represent and warrant that I am not subject to any agreements with any third person or\nentity that would limit or affect my ability to work for and on behalf of LSI; provided, however, that if I am subject to such an\nagreement, then I will strictly abide by such agreement.\n3. NON-COMPETITION AND NON-SOLICITATION\nIn consideration for LSI’s agreement to employ and compensate me, and/or continue to employ and compensate me, and\nLSI’s granting of access to me to Confidential Information, and for other good and valuable consideration, the sufficiency of\nwhich I acknowledge, I agree as follows:\nA. By virtue of my employment with LSI, I acquired Confidential lnfonnation, as defined by this Agreement, and but for\nmy association with LSI, I would not have had access to the Confidential lnfonnation. The Confidential lnfonnation allows for\nLSI to have a competitive advantage. I acknowledge that if I disclose or use the Confidential lnfonnation, I will cause irreparable\nharm to LSI.\nB. For purposes of this Agreement, the ”Non-Compete and Non-Solicit Period” means a period of 12 months following the\ntermination of my employment with LSI.\nC. For purposes of this Agreement, ”Competitor” means any person or entity with which LSI competes in the lighting and\nlighting controls industries (including but not limited to Acuity Brands, Eaton / Cooper Lighting, Hubbell Lighting, Philips\nLighting, Cree, General Electric, H.E. Williams, Legrand, Leviton and Lutron) or graphics or digital signage industries (including\nbut not limited to Federal Heath, YESCO, Blair, Everbrite, ICON, Vomeal, Miller Zell, Persona, Sign Resource, Stratacache,\nAVI, Whitlock, Diversified, Tech Innovations, CCS, HB Comm, Sicom and Four Winds) and each of their affiliates, subsidiaries\nand related businesses operating in such industries.\nD. For purposes of this Agreement, ”Customer” means any person or entity with which LSI has an ongoing business\nrelationship or a prospective business relationship for the 12 months prior to the date of this Agreement, including vendors,\nrepresentatives or suppliers.\nE. For purposes of this Agreement, ”Competitive Activity" means directly or indirectly, individually or in combination\nwith others, engaging in any one or more of the following acts:\n(i) accepting employment with a Competitor;\n(ii) calling on, contacting, communicating with, or soliciting any Customer for the purpose of inducing them to\ndivert their business to another entity or business;\n(iii) interfering with any contract or other agreement that LSI may now or hereafter have, including, that would or\ncould in any way be injurious or detrimental to LSI' s image, business relationships or its business; or\n(iv) encouraging or soliciting any of LSI’s employees or agents to terminate or modify their relationships with LSI\nor hiring or engaging such persons for any purpose whatsoever. I acknowledge that this covenant is necessary to enable\nLSI to maintain a stable workforce.\nE. I agree to refrain from directly or indirectly engaging in any Competitive Activity, including assisting another to engage\nin any Competitive Activity, at all times during my employment with LSI and during the Non-Compete and Non-Solicit Period.\nG. Recognizing that irreparable injury will result to LSI, its business and property if I were to breach any of the foregoing\ncovenants or my obligations as set forth in this Agreement, I agree that in the event of any such breach or threatened breach, LSI\nis entitled, in addition to any other remedies and damages available, to an injunction to restrain the violation or continued\nviolation of this Agreement by me. In the event any provision, restriction or part of this section of the Agreement shall be\ninvalidated, the remainder thereof shall nevertheless continue to be valid and fully enforceable.\nH. I understand and agree that this agreement is in addition to and does not limit my obligations under any LSI policy, or\nany statute, regulation or common law, regarding the matters covered above. I understand that a breach or violation of this\nagreement could subject me to disciplinary action, including termination or legal action, or both. I further understand that nothing\nin this agreement prevents me from giving truthful testimony or otherwise complying with applicable legal requirements.\nI. In the event any provision, restriction or part of this section of the Agreement shall be invalidated, the remainder thereof\nshall nevertheless continue to be valid and fully enforceable, and in the event any claims of any invalidity or unenforceability\nshall be predicated upon the temporal and/or geographic area covered thereby, it is expressly agreed that such provision shall\nthereby be deemed modified to the maximum geographic area and the maximum temporal duration.\n4. INTEL L ECTUAL PRO PE RTY\nI acknowledge and agree that all plans, designs, processes, research and development, original works of authorship, product\nknow-how and show-how, methodologies, techniques, inventions, discoveries, improvements, modifications, derivative works,\ncomputer programs, computer hardware and software, including source code and object code, algorithms and any other\nintellectual property, whether or not subject to patent or copyright protection, relating to the LSI’s business are the sole and\nexclusive property of LSI (”LSI Intellectual Property”). I shall promptly disclose all LSI Intellectual Property that I make,\ncreate, author, originate, conceive, develop or reduce to practice, either alone or jointly with others, at any time during my\nemployment with LSI, which are within or in any way related to the existing or contemplated scope of LSI’s business (all of\nwhich LSI Intellectual Property shall be deemed made during the employment relationship if made or conceived within twelve\n(12) months following termination of my employment). I shall assign, without additional consideration, and hereby irrevocably\nassign to LSI any and all rights, title and interest that I may have or acquire in LSI Intellectual Property and all patents,\ncopyrights, trademarks and other rights associated therewith.\nI shall cooperate with and assist LSI, as is reasonably required, to protect its interests in LSI Intellectual Property, including\nbut not limited to executing and filing any document requested by the LSI if it deems necessary to apply for any patent, copyright,\ntrademark or other proprietary right in any and all countries, or to convey any rights, title or interest therein to any of its\nnominees, successors or assigns. Notwithstanding anything herein to the contrary, nothing is intended to assign any of my rights\ntitles or interests in or to any patents, copyrights or trademarks, or applications therefor that was developed entirely outside of the\nemployment relationship with LSI, unless the patents, copyrights or trademarks, or applications therefor, or any other intellectual\nproperty: (1) relates to the business of LSI or to LSI’s actual or demonstrably anticipated research and development; or (ii) results\nfrom any work performed by me for LSI.\n5. RETURN OF LSI MATERIALS\nUpon separation from employment with LSI, on LSI’s earlier request during my employment, or at any time subsequent to\nmy employment upon demand from LSI, I will immediately deliver to LSI, and will not keep in my possession, recreate, or\ndeliver to anyone else, any and all LSI property, including, but not limited to, Confidential Information, all devices and\nequipment belonging to LSI (including computers, handheld electronic devices, telephone equipment, and other electronic\ndevices), all tangible embodiments of the Inventions, all electronically stored information and passwords to access such property,\nLSI credit cards, records, data, notes, notebooks, reports, files, proposals, lists, correspondence, specifications, drawings,\nblueprints, sketches, materials, photographs, charts, any other documents and property, and reproductions of any of the foregoing\nitems. I also consent to an exit interview to confirm my compliance with the terms of this Agreement.\n6. NOTIFICATION OF NEW EMPLOYER\nIn the event that I leave the employ of LSI, I hereby grant consent to notification by LSI to my new employer about my rights\nand obligations under this Agreement. I also agree to disclose the existence and terms of this Agreement to any subsequent\npotential employer or principal who competes in any way with LSI for business, customers and/or employees no later than\nfourteen (14) days prior to the commencement of employment with that employer.\n7. MISCELLANEOUS\nA. Governing Law; Consent to Personal urisdiction. This Agreement will be governed by the laws of the State of Ohio\nwithout regard to Ohio conflicts of law rules that may result in the application of the laws of any jurisdiction other than Ohio. To\nthe extent that any lawsuit is permitted under this Agreement, I hereby expressly consent to the personal and exclusive\njurisdiction and venue of the state and federal courts located in Hamilton County, Ohio for any lawsuit filed against me by LSI.\nB. Assignability. This Agreement will be binding upon my heirs, executors, assigns, administrators, and other legal\nrepresentatives, and will be for the benefit of LSI, its successors, and its assigns. There are no intended third-party beneficiaries to\nthis Agreement, except as may be expressly otherwise stated. Notwithstanding anything to the contrary herein, LSI may assign\nthis Agreement and its rights and obligations under this Agreement to any successor to all or substantially all of LSI’s relevant\nassets, whether by merger, consolidation, reorganization, reincorporation, conversion, sale of assets, sale of membership interests,\nstock or other equity interests, or otherwise.\nC. Entire Agreement. This Agreement sets forth the entire agreement and understanding between LSI and me with respect\nto the subject matter herein and supersedes all prior written and oral agreements, discussions, or representations between us,\nincluding, but not limited to, any representations made during my interview(s). I represent and warrant that I am not relying on\nany statement or representation not contained in this Agreement. Any subsequent change or changes in my duties, salary, or\ncompensation will not affect the validity or scope of this A greement.\nD. Headings. Headings are used in this Agreement for reference only and shall not be considered when interpreting this\nAgreement.\nE. Severabiligl. If a court or other body of competent jurisdiction finds, or the Parties mutually believe, any provision of\nthis Agreement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent\npermissible so as to affect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.\nF. Modification, Waiver. No modification of or amendment to this Agreement, nor any waiver of any rights under this\nAgreement, will be effective unless in a writing signed by a manager or officer of LSI and me. Waiver by LSI of a particular\nbreach of any provision of this Agreement will not operate as a waiver of any other provision or subsequent breach.\nG. Survivorship. The rights and obligations of the parties to this Agreement will survive termination of my employment\nwith LSI.\n/s/ James A. Clark\nTignafire\nJames A. Clark\nNovember 1, 2018\nLSI INDUSTRIES INC.\n/s/ Howard E. Japlon\nSlgnafire\nHoward E. aplon\nEV P, Human Resources & General Counsel\nNovember 1, 2018	Exhibit 10.2\nRESTRICTIVE COVENANT and\nconfidentiality AGREEMENT\nNovember 1, 2018\nAs a condition of my employment with LSI Industries Inc. ("LSI"), and in consideration of my employment with LSI and the\ninducement award of stock options by LSI to me, I, James A. Clark, agree to the following provisions of this Restrictive Covenant\nand Confidentiality Agreement concerning my employment with LSI ("the Agreement"):\n1. AT-WILL EMPLOYMENT\nI understand and acknowledge that my employment with LSI is for no specified term and constitutes "At Will" employment.\nI also understand that any representation to the contrary is unauthorized and not valid unless in writing and signed by the chief\nhuman resources officer of LSI. Accordingly, I acknowledge that my employment relationship may be terminated at any time,\nwith or without good cause or for any or no cause, or for any reason or no reason at my option or at the option of LSI, with or\nwithout notice. I further acknowledge that LSI may modify job titles, salaries, and benefits from time to time as it deems\nappropriate or necessary.\n2. CONFIDENTIALITY\nA.\n"Confidential Inforation" means any data, information or material (whether in written, oral, graphic, electronic or\nother form) with respect to LSI's past, current or anticipated business that is not generally known by the public or in the industry,\nincluding confidential or proprietary business information and trade secrets, whether or not such information is marked or\notherwise designated as confidential or restricted. Confidential Information does not include any information that: (a) is or\nbecomes part of the public domain or is or becomes publicly available without breach of this agreement by me; (b) I lawfully\nacquire from a source not under any non-use or confidentiality obligation regarding such information; (c) is disclosed to any third\nparty by or with the permission of LSI without confidentiality restrictions; or, (d) is independently developed by a person who has\nnot received, directly or indirectly, any Confidential Information from any source. Confidentia Information does include, but is\nnot limited to:\n(i)\nProducts and processes and their development and performance;\n(ii)\nAny scientific, engineering, or technical information used during the course of my employment at LSI;\n(iii)\nComputer software and firmware;\n(iv)\nBusiness and financial information, including names of and contact information for customers, prospective\ncustomers and suppliers;\n(v) Information relating to manufacturing, purchasing, sourcing, inventories, data processing, personnel, marketing,\nsales, pricing, costs and quotations; and\n(vi)\nInformation regarding third parties or provided by third parties and known to LSI which LSI is obligated by\nstatute, regulation, license or other agreement not to disclose or to only use for limited purposes.\nB.\nNonuse and Nondisclosure. I agree that during and after my employment with LSI, I will hold in the strictest\nconfidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of Confidential Information, and I\nwill not (i) use the Confidential Information for any purpose whatsoever other than for the benefit of LSI in the course of my\nemployment, or (ii) disclose Confidential Information to any third party without the prior written authorization of my supervisor\nand in compliance with LSI policy regarding the transmittal of Confidential Information. Upon termination of my assignment, my\nemployment or as requested by my supervisor, I will promptly return all materials containing Confidential Information and\ncopies thereof to LSI. If compelled to produce Confidential Information by applicable law, I shall provide prior written notice of\nat least seven business days to my supervisor. I agree that I obtain no license, copyright, title or any other ownership rights to any\nConfidential Information, and that as between LSI and me, LSI retains all Confidential Information as its sole property. I\nunderstand that my unauthorized use or disclosure of Confidential Information during my employment may lead to disciplinary\naction, up to and including immediate termination and legal action by LSI. I understand that my obligations under this section\nsurvive the termination of my employment\nC. Notice of Immunity from Liability for Confidential Disclosure of a Trade Secret to the Goverment or in a Court Filing.\nNotwithstanding anything herein to the contrary, pursuant to the Federal Defend Trade Secrets A ct of 2016, an individual may not\nbe held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made\n(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for\nthe purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a\nlawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for\nreporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret\ninformation in the court proceeding if the individual files any document containing the trade secret under seal and does not\ndisclose the trade secret except pursuant to court order. Nothing herein is intended, or should be construed, to affect the\nimmunities created by the Defend Trade Secrets A ct of 2016.\nD. Former Employer. I agree that I will not, during my employment with LSI, improperly use or disclose any proprietary\ninformation of any former or concurrent employer or other person or entity, and that I will not bring onto the premises of LSI any\nunpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing\nby such employer, person or entity. I also represent and warrant that I am not subject to any agreements with any third person or\nentity that would limit or affect my ability to work for and on behalf of LSI; provided, however, that if I am subject to such an\nagreement, then I will strictly abide by such agreement.\n3.\nNON-COMPETITION AND NON-SOLICITATION\nIn consideration for LSI's agreement to employ and compensate me, and/or continue to employ and compensate me, and\nLSI's granting of access to me to Confidential Information, and for other good and valuable consideration, the sufficiency of\nwhich I acknowledge, I agree as follows:\n2\nA. By virtue of my employment with LSI, I acquired Confidential Information, as defined by this Agreement, and but for\nmy association with LSI, I would not have had access to the Confidential Information. The Confidential Inforation allows for\nLSI to have a competitive advantage. I acknowledge that if I disclose or use the Confidential Information, I will cause irreparable\nharm to LSI.\nB. For purposes of this greement, the "Non-Compete and Non-Solicit Period" means a period of 12 months following the\ntermination of my employment with LSI.\nC.\nFor purposes of this Agreement, "Competitor" means any person or entity with which LSI competes in the lighting and\nlighting controls industries (including but not limited to Acuity Brands, Eaton / Cooper Lighting, Hubbell Lighting, Philips\nLighting, Cree, General Electric, H.E. Williams, Legrand, Leviton and Lutron) or graphics or digital signage industries (including\nbut not limited to Federal Heath, ESCO, Blair, Everbrite, ICON, Vomeal, Miller Zell, Persona, Sign Resource, Stratacache,\nAVI, Whitlock, Diversified, Tech Innovations, CCS, HB Comm, Sicom and Four Winds) and each of their affiliates, subsidiaries\nand related businesses operating in such industries.\nD. For purposes of this Agreement "Customer" means any person or entity with which LSI has an ongoing business\nrelationship or a prospective business relationship for the 12 months prior to the date of this Agreement, including vendors,\nrepresentatives or suppliers.\nE.\nFor purposes of this A greement, "Competitive Activity" means directly or indirectly, individually or in combination\nwith others, engaging in any one or more of the following acts:\n(i)\naccepting employment with a Competitor;\n(ii)\ncalling on, contacting, communicating with, or soliciting any Customer for the purpose of inducing them to\ndivert their business to another entity or business;\n(iii)\ninterfering with any contract or other agreement that LSI may now or hereafter have, including, that would or\ncould in any way be injurious or detrimental to LSI's image, business relationships or its business; or\n(iv) encouraging or soliciting any of LSI's employees or agents to terminate or modify their relationships with LSI\nor hiring or engaging such persons for any purpose whatsoever. I acknowledge that this covenant is necessary to enable\nLSI to maintain a stable workforce.\nF.\nI agree to refrain from directly or indirectly engaging in any Competitive Activity, including assisting another to engage\nin any Competitive ctivity, at all times during my employment with LSI and during the Non-Compete and Non-Solicit Period\n3\nG. Recognizing that irreparable injury will result to LSI, its business and property if I were to breach any of the foregoing\ncovenants or my obligations as set forth in this Agreement, I agree that in the event of any such breach or threatened breach, LSI\nis entitled, in addition to any other remedies and damages available, to an injunction to restrain the violation or continued\nviolation of this Agreement by me. In the event any provision, restriction or part of this section of the Agreement shall be\ninvalidated, the remainder thereof shall nevertheless continue to be valid and fully enforceable.\nH.\nI understand and agree that this agreement is in addition to and does not limit my obligations under any LSI policy, or\nany statute, regulation or common law, regarding the matters covered above. I understand that a breach or violation of this\nagreement could subject me to disciplinary action, including termination or legal action, or both. I further understand that nothing\nin this agreement prevents me from giving truthful testimony or otherwise complying with applicable legal requirements.\nI.\nIn the event any provision, restriction or part of this section of the greement shall be invalidated, the remainder thereof\nshall nevertheless continue to be valid and fully enforceable, and in the event any claims of any invalidity or unenforceability\nshall be predicated upon the temporal and/or geographic area covered thereby, it is expressly agreed that such provision shall\nthereby be deemed modified to the maximum geographic area and the maximum temporal duration.\n4. INTELLECTUAL PROPERTY\nI acknowledge and agree that all plans, designs, processes, research and development, original works of authorship, product\nknow-how and show-how, methodologies, techniques, inventions, discoveries, improvements, modifications, derivative works,\ncomputer programs, computer hardware and software, including source code and object code, algorithms and any other\nintellectual property, whether or not subject to patent or copyright protection, relating to the LSI's business are the sole and\nexclusive property of LSI ("LSI Intellectual Property"). I shall promptly disclose all LSI Intellectual Property that I make,\ncreate, author, originate, conceive, develop or reduce to practice, either alone or jointly with others, at any time during my\nemployment with LSI, which are within or in any way related to the existing or contemplated scope of LSI'S business (all\nof\nwhich LSI Intellectual Property shall be deemed made during the employment relationship if made or conceived within twelve\n(12) months following termination of my employment). I shall assign, without additional consideration, and hereby irrevocably\nassign to LSI any and all rights, title and interest that I may have or acquire in LSI Intellectual Property and all patents,\ncopyrights, trademarks and other rights associated therewith.\nI shall cooperate with and assist LSI, as is reasonably required, to protect its interests in LSI Intellectual Property, including\nbut not limited to executing and filing any document requested by the LSI if it deems necessary to apply for any patent, copyright,\ntrademark or other proprietary right in any and all countries, or to convey any rights, title or interest therein to any of its\nnominees, successors or assigns. Notwithstanding anything herein to the contrary, nothing is intended to assign any of my rights\ntitles or interests in or to any patents, copyrights or trademarks, or applications therefor that was developed entirely outside of the\nemployment relationship with LSI, unless the patents, copyrights or trademarks, or applications therefor, or any other intellectual\nproperty: (i) relates to the business of LSI or to LSI's actual or demonstrably anticipated research and development; or (ii) results\nfrom any work performed by me for LSI.\n4\n5.\nRETURN OF LSI MATERIALS\nUpon separation from employment with LSI, on LSI'S earlier request during my employment, or at any time subsequent to\nmy\nemployment\nupon\ndemand\nfrom\nLSI,\nI\nwill\nimmediately\ndeliver\nto\nLSI,\nand\nwill\nnot\nkeep\nin\nmy\npossession,\nrecreate,\nor\ndeliver to anyone else, any and all LSI property, including, but not limited to, Confidential Information, all devices and\nequipment belonging to LSI (including computers, handheld electronic devices, telephone equipment, and other electronic\ndevices), all tangible embodiments of the Inventions, all electronically stored information and passwords to access such property,\nLSI credit cards, records, data, notes, notebooks, reports, files, proposals, lists, correspondence, specifications, drawings,\nblueprints, sketches, materials, photographs, charts, any other documents and property, and reproductions of any of the foregoing\nitems. I also consent to an exit interview to confirm my compliance with the terms of this Agreement.\n6.\nNOTIFICATION OF NEW EMPLOYER\nIn the event that I leave the employ of LSI, I hereby grant consent to notification by LSI to my new employer about my rights\nand obligations under this A greement. I also agree to disclose the existence and terms of this greement to any subsequent\npotential employer or principal who competes in any way with LSI for business, customers and/or employees no later than\nfourteen (14) days prior to the commencement of employment with that employer.\n7. MISCELLANEOUS\nA.\nGoverning Law; Consent to Personal Jurisdiction. This Agreement will be govemed by the laws of the State of Ohio\nwithout regard to Ohio conflicts of law rules that may result in the application of the laws of any jurisdiction other than Ohio. To\nthe extent that any lawsuit is permitted under this Agreement, I hereby expressly consent to the personal and exclusive\njurisdiction and venue of the state and federal courts located in Hamilton County, Ohio for any lawsuit filed against me by LSI.\nB.\nAssignability. This Agreement will be binding upon my heirs, executors, assigns, administrators, and other legal\nrepresentatives, and will be for the benefit of LSI, its successors, and its assigns. There are no intended third-party beneficiaries to\nthis Agreement, except as may be expressly otherwise stated. Notwithstanding anything to the contrary herein, LSI may assign\nthis Agreement and its rights and obligations under this A greement to any successor to all or substantially all of LSI's relevant\nassets, whether by merger, consolidation, reorganization, reincorporation, conversion sale of assets, sale of membership interests,\nstock or other equity interests, or otherwise.\nC.\nEntire A greement. This Agreement sets forth the entire agreement and understanding between LSI and me with respect\nto the subject matter herein and supersedes all prior written and oral agreements, discussions, or representations between us,\nincluding, but not limited to, any representations made during my interview(s). I represent and warrant that I am not relying on\nany statement or representation not contained in this Agreement. Any subsequent change or changes in my duties, salary, or\ncompensation will not affect the validity or scope of this Agreement.\n5\nD.\nHeadings. Headings are used in this Agreement for reference only and shall not be considered when interpreting this\nAgreement.\nE. Severability If a court or other body of competent jurisdiction finds, or the Parties mutually believe, any provision of\nthis A greement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent\npermissible so as to affect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.\nF.\nModification, Waiver. No modification of or amendment to this Agreement, nor any waiver of any rights under this\ngreement, will be effective unless in a writing signed by a manager or officer of LSI and me. Waiver by LSI of a particular\nbreach of any provision of this A greement will not operate as a waiver of any other provision or subsequent breach.\nG. Survivorship. The rights and obligations of the parties to this Agreement will survive termination of my employment\nwith LSI.\n/s/ James A. Clark\nS1gnature\nJames A. Clark\nNovember 1, 2018\nLSI INDUSTRIES INC.\n/s/ Howard E. Japlon\nS1gnature\nHoward E. Japlon\nEVP, Human Resources & General Counsel\nNovember 1, 2018\n6	Exhibit 10.2\nRESTRICTIVE COVENANT and\nconfidentiality AGREEMENT\nNovember 1, 2018\nAs a condition of my employment with LSI Industries Inc. (“LSI”), and in consideration of my employment with LSI and the\ninducement award of stock options by LSI to me, I, James A. Clark, agree to the following provisions of this Restrictive Covenant\nand Confidentiality Agreement concerning my employment with LSI (“the Agreement”):\n1. AT -WILL EMPLOYMENT\nI understand and acknowledge that my employment with LSI is for no specified term and constitutes “At Will” employment.\nI also understand that any representation to the contrary is unauthorized and not valid unless in writing and signed by the chief\nhuman resources officer of LSI. Accordingly, I acknowledge that my employment relationship may be terminated at any time,\nwith or without good cause or for any or no cause, or for any reason or no reason at my option or at the option of LSI, with or\nwithout notice. I further acknowledge that LSI may modify job titles, salaries, and benefits from time to time as it deems\nappropriate or necessary.\n2. CONFIDENTIALITY\nA.\n“Confidential Information” means any data, information or material (whether in written, oral, graphic, electronic or\nother form) with respect to LSI’s past, current or anticipated business that is not generally known by the public or in the industry,\nincluding confidential or proprietary business information and trade secrets, whether or not such information is marked or\notherwise designated as confidential or restricted. Confidential Information does not include any information that: (a) is or\nbecomes part of the public domain or is or becomes publicly available without breach of this agreement by me; (b) I lawfully\nacquire from a source not under any non-use or confidentiality obligation regarding such information; (c) is disclosed to any third\nparty by or with the permission of LSI without confidentiality restrictions; or, (d) is independently developed by a person who has\nnot received, directly or indirectly, any Confidential Information from any source. Confidential Information does include, but is\nnot limited to:\n(i) Products and processes and their development and performance;\n(ii) Any scientific, engineering, or technical information used during the course of my employment at LSI;\n(iii) Computer software and firmware;\n(iv) Business and financial information, including names of and contact information for customers, prospective\ncustomers and suppliers;\n(v) Information relating to manufacturing, purchasing, sourcing, inventories, data processing, personnel, marketing,\nsales, pricing, costs and quotations; and\n(vi) Information regarding third parties or provided by third parties and known to LSI which LSI is obligated by\nstatute, regulation, license or other agreement not to disclose or to only use for limited purposes.\nB.\nNonuse and Nondisclosure. I agree that during and after my employment with LSI, I will hold in the strictest\nconfidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of Confidential Information, and I\nwill not (i) use the Confidential Information for any purpose whatsoever other than for the benefit of LSI in the course of my\nemployment, or (ii) disclose Confidential Information to any third party without the prior written authorization of my supervisor\nand in compliance with LSI policy regarding the transmittal of Confidential Information. Upon termination of my assignment, my\nemployment, or as requested by my supervisor, I will promptly return all materials containing Confidential Information and\ncopies thereof to LSI. If compelled to produce Confidential Information by applicable law, I shall provide prior written notice of\nat least seven business days to my supervisor. I agree that I obtain no license, copyright, title or any other ownership rights to any\nConfidential Information, and that as between LSI and me, LSI retains all Confidential Information as its sole property. I\nunderstand that my unauthorized use or disclosure of Confidential Information during my employment may lead to disciplinary\naction, up to and including immediate termination and legal action by LSI. I understand that my obligations under this section\nsurvive the termination of my employment.\nC. Notice of Immunity from Liability for Confidential Disclosure of a Trade Secret to the Government or in a Court Filing.\nNotwithstanding anything herein to the contrary, pursuant to the Federal Defend Trade Secrets Act of 2016, an individual may not\nbe held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made\n(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for\nthe purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a\nlawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for\nreporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret\ninformation in the court proceeding if the individual files any document containing the trade secret under seal and does not\ndisclose the trade secret except pursuant to court order. Nothing herein is intended, or should be construed, to affect the\nimmunities created by the Defend Trade Secrets Act of 2016.\nD. Former Employer. I agree that I will not, during my employment with LSI, improperly use or disclose any proprietary\ninformation of any former or concurrent employer or other person or entity, and that I will not bring onto the premises of LSI any\nunpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing\nby such employer, person or entity. I also represent and warrant that I am not subject to any agreements with any third person or\nentity that would limit or affect my ability to work for and on behalf of LSI; provided, however, that if I am subject to such an\nagreement, then I will strictly abide by such agreement.\n3. NON-COMPETITION AND NON-SOLICITATION\nIn consideration for LSI’s agreement to employ and compensate me, and/or continue to employ and compensate me, and\nLSI’s granting of access to me to Confidential Information, and for other good and valuable consideration, the sufficiency of\nwhich I acknowledge, I agree as follows:\n2\nA. By virtue of my employment with LSI, I acquired Confidential Information, as defined by this Agreement, and but for\nmy association with LSI, I would not have had access to the Confidential Information. The Confidential Information allows for\nLSI to have a competitive advantage. I acknowledge that if I disclose or use the Confidential Information, I will cause irreparable\nharm to LSI.\nB. For purposes of this Agreement, the “Non-Compete and Non-Solicit Period” means a period of 12 months following the\ntermination of my employment with LSI.\nC. For purposes of this Agreement, “Competitor” means any person or entity with which LSI competes in the lighting and\nlighting controls industries (including but not limited to Acuity Brands, Eaton / Cooper Lighting, Hubbell Lighting, Philips\nLighting, Cree, General Electric, H.E . Williams, Legrand, Leviton and Lutron) or graphics or digital signage industries (including\nbut not limited to Federal Heath, YESCO, Blair, Everbrite, ICON, Vomeal, Miller Zell, Persona, Sign Resource, Stratacache,\nAVI, Whitlock, Diversified, Tech Innovations, CCS, HB Comm, Sicom and Four Winds) and each of their affiliates, subsidiaries\nand related businesses operating in such industries.\nD. For purposes of this Agreement, “Customer” means any person or entity with which LSI has an ongoing business\nrelationship or a prospective business relationship for the 12 months prior to the date of this Agreement, including vendors,\nrepresentatives or suppliers.\nE. For purposes of this Agreement, “Competitive Activity” means directly or indirectly, individually or in combination\nwith others, engaging in any one or more of the following acts:\n(i) accepting employment with a Competitor;\n(ii) calling on, contacting, communicating with, or soliciting any Customer for the purpose of inducing them to\ndivert their business to another entity or business;\n(iii) interfering with any contract or other agreement that LSI may now or hereafter have, including, that would or\ncould in any way be injurious or detrimental to LSI’s image, business relationships or its business; or\n(iv) encouraging or soliciting any of LSI’s employees or agents to terminate or modify their relationships with LSI\nor hiring or engaging such persons for any purpose whatsoever. I acknowledge that this covenant is necessary to enable\nLSI to maintain a stable workforce.\nF. I agree to refrain from directly or indirectly engaging in any Competitive Activity, including assisting another to engage\nin any Competitive Activity, at all times during my employment with LSI and during the Non-Compete and Non-Solicit Period.\n3\nG. Recognizing that irreparable injury will result to LSI, its business and property if I were to breach any of the foregoing\ncovenants or my obligations as set forth in this Agreement, I agree that in the event of any such breach or threatened breach, LSI\nis entitled, in addition to any other remedies and damages available, to an injunction to restrain the violation or continued\nviolation of this Agreement by me. In the event any provision, restriction or part of this section of the Agreement shall be\ninvalidated, the remainder thereof shall nevertheless continue to be valid and fully enforceable.\nH. I understand and agree that this agreement is in addition to and does not limit my obligations under any LSI policy, or\nany statute, regulation or common law, regarding the matters covered above. I understand that a breach or violation of this\nagreement could subject me to disciplinary action, including termination or legal action, or both. I further understand that nothing\nin this agreement prevents me from giving truthful testimony or otherwise complying with applicable legal requirements.\nI. In the event any provision, restriction or part of this section of the Agreement shall be invalidated, the remainder thereof\nshall nevertheless continue to be valid and fully enforceable, and in the event any claims of any invalidity or unenforceability\nshall be predicated upon the temporal and/or geographic area covered thereby, it is expressly agreed that such provision shall\nthereby be deemed modified to the maximum geographic area and the maximum temporal duration.\n4. INTELLECTUAL PROPERTY\nI acknowledge and agree that all plans, designs, processes, research and development, original works of authorship, product\nknow-how and show-how, methodologies, techniques, inventions, discoveries, improvements, modifications, derivative works,\ncomputer programs, computer hardware and software, including source code and object code, algorithms and any other\nintellectual property, whether or not subject to patent or copyright protection, relating to the LSI’s business are the sole and\nexclusive property of LSI (“LSI Intellectual Property”). I shall promptly disclose all LSI Intellectual Property that I make,\ncreate, author, originate, conceive, develop or reduce to practice, either alone or jointly with others, at any time during my\nemployment with LSI, which are within or in any way related to the existing or contemplated scope of LSI’s business (all of\nwhich LSI Intellectual Property shall be deemed made during the employment relationship if made or conceived within twelve\n(12) months following termination of my employment). I shall assign, without additional consideration, and hereby irrevocably\nassign to LSI any and all rights, title and interest that I may have or acquire in LSI Intellectual Property and all patents,\ncopyrights, trademarks and other rights associated therewith.\nI shall cooperate with and assist LSI, as is reasonably required, to protect its interests in LSI Intellectual Property, including\nbut not limited to executing and filing any document requested by the LSI if it deems necessary to apply for any patent, copyright,\ntrademark or other proprietary right in any and all countries, or to convey any rights, title or interest therein to any of its\nnominees, successors or assigns. Notwithstanding anything herein to the contrary, nothing is intended to assign any of my rights\ntitles or interests in or to any patents, copyrights or trademarks, or applications therefor that was developed entirely outside of the\nemployment relationship with LSI, unless the patents, copyrights or trademarks, or applications therefor, or any other intellectual\nproperty: (i) relates to the business of LSI or to LSI’s actual or demonstrably anticipated research and development; or (ii) results\nfrom any work performed by me for LSI.\n4\n5. RETURN OF LSI MATERIALS\nUpon separation from employment with LSI, on LSI’s earlier request during my employment, or at any time subsequent to\nmy employment upon demand from LSI, I will immediately deliver to LSI, and will not keep in my possession, recreate, or\ndeliver to anyone else, any and all LSI property, including, but not limited to, Confidential Information, all devices and\nequipment belonging to LSI (including computers, handheld electronic devices, telephone equipment, and other electronic\ndevices), all tangible embodiments of the Inventions, all electronically stored information and passwords to access such property,\nLSI credit cards, records, data, notes, notebooks, reports, files, proposals, lists, correspondence, specifications, drawings,\nblueprints, sketches, materials, photographs, charts, any other documents and property, and reproductions of any of the foregoing\nitems. I also consent to an exit interview to confirm my compliance with the terms of this Agreement.\n6. NOTIFICATION OF NEW EMPLOYER\nIn the event that I leave the employ of LSI, I hereby grant consent to notification by LSI to my new employer about my rights\nand obligations under this Agreement. I also agree to disclose the existence and terms of this Agreement to any subsequent\npotential employer or principal who competes in any way with LSI for business, customers and/or employees no later than\nfourteen (14) days prior to the commencement of employment with that employer.\n7. MISCELLANEOUS\nA. Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the State of Ohio\nwithout regard to Ohio conflicts of law rules that may result in the application of the laws of any jurisdiction other than Ohio. To\nthe extent that any lawsuit is permitted under this Agreement, I hereby expressly consent to the personal and exclusive\njurisdiction and venue of the state and federal courts located in Hamilton County, Ohio for any lawsuit filed against me by LSI.\nB.\nAssignability. This Agreement will be binding upon my heirs, executors, assigns, administrators, and other legal\nrepresentatives, and will be for the benefit of LSI, its successors, and its assigns. There are no intended third-party beneficiaries to\nthis Agreement, except as may be expressly otherwise stated. Notwithstanding anything to the contrary herein, LSI may assign\nthis Agreement and its rights and obligations under this Agreement to any successor to all or substantially all of LSI’s relevant\nassets, whether by merger, consolidation, reorganization, reincorporation, conversion, sale of assets, sale of membership interests,\nstock or other equity interests, or otherwise.\nC. Entire Agreement. This Agreement sets forth the entire agreement and understanding between LSI and me with respect\nto the subject matter herein and supersedes all prior written and oral agreements, discussions, or representations between us,\nincluding, but not limited to, any representations made during my interview(s). I represent and warrant that I am not relying on\nany statement or representation not contained in this Agreement. Any subsequent change or changes in my duties, salary, or\ncompensation will not affect the validity or scope of this Agreement.\n5\nD. Headings. Headings are used in this Agreement for reference only and shall not be considered when interpreting this\nAgreement.\nE. Severability. If a court or other body of competent jurisdiction finds, or the Parties mutually believe, any provision of\nthis Agreement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent\npermissible so as to affect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.\nF. Modification, Waiver. No modification of or amendment to this Agreement, nor any waiver of any rights under this\nAgreement, will be effective unless in a writing signed by a manager or officer of LSI and me. Waiver by LSI of a particular\nbreach of any provision of this Agreement will not operate as a waiver of any other provision or subsequent breach.\nG. Survivorship. The rights and obligations of the parties to this Agreement will survive termination of my employment\nwith LSI.\n/s/ James A. Clark\nSignature\nJames A. Clark\nNovember 1, 2018\nLSI INDUSTRIES INC.\n/s/ Howard E. Japlon\nSignature\nHoward E. Japlon\nEVP, Human Resources & General Counsel\nNovember 1, 2018\n6
+aea0ce61011e0ec2fbae5fb0b59d03a0.pdf	effective_date jurisdiction party term	14 ADDENDUM 7 NON-DISCLOSURE AGREEMENT This non-disclosure agreement (the "AGREEMENT") is\nentered into this 1ST DAY OF JUNE, 1996 by ACUMED, INC., (the\n"DISCLOSING PARTY") and O.J .I . SURGICAL, INC., its PRINCIPALS, MANAGEMENT and STAFF (the\n"RECEIVING PARTY") for the purpose of preventing the unauthorized disclosure of Confidential Information (as\ndefined below) of the Disclosing Party which may be disclosed to the Receiving Party for the purpose of pursuing the\nestablishment of a business relationship or negotiating any contract or agreement between the Disclosing Party and the\nReceiving Party. For purposes of the agreement, Confidential Information shall mean any and all information relating to\nAcumed Products and Pricing. In consideration of the Disclosing Party's disclosure of Confidential Information to the\nReceiving party, the Receiving Party hereby agrees as follows: 1. The Receiving party shall hold and maintain the\nConfidential Information in strictest confidence and in trust for the sole and exclusive benefit of the Disclosing party . 2.\nThe Receiving party shall not, without the prior written approval of the Disclosing Party, use for its own benefit, publish\nor otherwise disclose to others, or permit the use by others for their benefit or to the detriment of the Disclosing party,\nany of the Confidential Information. 3. The Receiving party shall carefully restrict access to the Confidential Information\nto those of its officers, directors and employees who clearly need such access in order to participate on the behalf of the\nReceiving Party in the analysis and negotiation of a business relationship or any contract or agreement, or the advisability\nthereof, with the Disclosing Party .The Receiving Party further warrants and represents that it will advise each of the\npersons to whom it provides access to any of the Confidential Information pursuant to the foregoing sentence that such\npersons are strictly prohibited from making use, publishing or otherwise disclosing to others or permitting others to use\nfor their benefit or to the detriment of the Disclosing Party, any of the Confidential Information. 4. The Receiving Party\nshall take actions necessary to protect the confidentiality of the Confidential Information except for its disclosure\npursuant to paragraph 3 above, and hereby indemnifies the Disclosing Party against any and all losses, damages, claims\nor expenses incurred or suffered by the Disclosing Party as a result of the Receiving Party's breach of this Agreement. 5.\nThis agreement shal1 continue in full force and effect indefinitely, except that the Receiving Party's obligations hereunder\nshal1 not extend to any of the Confidential Information which the Receiving Party can demonstrate was in the public\ndomain on the date of this Agreement. 6. The Receiving Party understands and acknowledges that any disclosure or\nmisappropriation of any of the Confidential Information in violation of this Agreement may cause the disclosing Party\nirreparable harm, the amount of which may be difficult to ascertain and, therefore, agrees that the Disclosing Party shall\nhave the right to apply to a court of competent jurisdiction for an order restraining any such further disclosure or\nmisappropriation and for such other relief as the Disclosing Party shall deem appropriate, such right of the Disclosing\nParty to be in addition to the remedies otherwise available to the Disclosing Party at law or in equity. 7. The Receiving\nparty shall return to the Disclosing party any and all records, notes and other written, printed or tangible materials\npertaining to the Confidential Information immediately upon written request of the Disclosing Party. 15 8. This\nAgreement and the Receiving Party's obligations hereunder shall be binding upon the representatives, assigns and\nsuccessors of the Receiving Party and shall inure to the benefit of the assigns and successors of the Disclosing Party. 9.\nThe Agreement shall be governed by and construed in accordance with internal laws of the State of Oregon. 10. If any\naction at law or inequity is brought to enforce or interpret the provisions of this Agreement, the prevailing party in such\naction shall be entitled to reasonable attorney's fees. 11. The Agreement constitutes the sole understanding of the parties\nwith respect to the subject matter hereof and may not be amended or modified except in writing signed by each of the\nparties hereto. IN WITNESS WHEREOF, THE PARTIES HERETO HAVE ENTERED INTO THIS AGREEMENT ON THE DATE SET\nFORTH ABOVE. Disclosing Party: Receiving Party: ACUMED, INC. O.J.I . SURGICAL, INC. By: Randall Huebner By: Harry\nKraus ------------------- --------------- /s/ RANDALL HUEBNER /S/ HARRY KRAUS ------------------- --------------- Signature\nSignature It: President Its: President ------------- -------------- Date: 4/28/97 Date: 4/21/97 ------------- -------------	14 ADDENDUM 7 NON-DISCLOSURE AGREEMENT This non-disclosure agreement (the "AGREEMENT") is\nentered into this 1ST DAY OF JUNE, 1996 by ACUMED, INC., (the\n"DISCLOSING PARTY") and O.J.I. SURGICAL, INC., its PRINCIPALS, MANAGEMENT and STAFF (the\n"RECEIVING PARTY") for the purpose of preventing the unauthorized disclosure of Confidential Information (as\ndefined below) of the Disclosing Party which may be disclosed to the Receiving Party for the purpose of pursuing the\nestablishment of a business relationship or negotiating any contract or agreement between the Disclosing Party and the\nReceiving Party. For purposes of the agreement, Confidential Information shall mean any and all information relating to\nAcumed Products and Pricing. In consideration of the Disclosing Party's disclosure of Confidential Information to the\nReceiving party, the Receiving Party hereby agrees as follows: 1. The Receiving party shall hold and maintain the\nConfidential Information in strictest confidence and in trust for the sole and exclusive benefit of the Disclosing party . 2.\nThe Receiving party shall not, without the prior written approval of the Disclosing Party, use for its own benefit, publish\nor otherwise disclose to others, or permit the use by others for their benefit or to the detriment of the Disclosing party,\nany of the Confidential Information. 3. The Receiving party shall carefully restrict access to the Confidential Information\nto those of its officers, directors and employees who clearly need such access in order to participate on the behalf of the\nReceiving Party in the analysis and negotiation of a business relationship or any contract or agreement, or the advisability\nthereof, with the Disclosing Party .The Receiving Party further warrants and represents that it will advise each of the\npersons to whom it provides access to any of the Confidential Information pursuant to the foregoing sentence that such\npersons are strictly prohibited from making use, publishing or otherwise disclosing to others or permitting others to use\nfor their benefit or to the detriment of the Disclosing Party, any of the Confidential Information. 4. The Receiving Party\nshall take actions necessary to protect the confidentiality of the Confidential Information except for its disclosure\npursuant to paragraph 3 above, and hereby indemnifies the Disclosing Party against any and all losses, damages, claims\nor expenses incurred or suffered by the Disclosing Party as a result of the Receiving Party's breach of this Agreement. 5.\nThis agreement shall continue in full force and effect indefinitely, except that the Receiving Party's obligations hereunder\nshall not extend to any of the Confidential Information which the Receiving Party can demonstrate was in the public\ndomain on the date of this Agreement. 6. The Receiving Party understands and acknowledges that any disclosure or\nmisappropriation of any of the Confidential Information in violation of this Agreement may cause the disclosing Party\nirreparable harm, the amount of which may be difficult to ascertain and, therefore, agrees that the Disclosing Party shall\nhave the right to apply to a court of competent jurisdiction for an order restraining any such further disclosure or\nmisappropriation and for such other relief as the Disclosing Party shall deem appropriate, such right of the Disclosing\nParty to be in addition to the remedies otherwise available to the Disclosing Party at law or in equity. 7. The Receiving\nparty shall return to the Disclosing party any and all records, notes and other written, printed or tangible materials\npertaining to the Confidential Information immediately upon written request of the Disclosing Party. 15 8. This\nAgreement and the Receiving Party's obligations hereunder shall be binding upon the representatives, assigns and\nsuccessors of the Receiving Party and shall inure to the benefit of the assigns and successors of the Disclosing Party. 9.\nThe Agreement shall be governed by and construed in accordance with internal laws of the State of Oregon. 10. If any\naction at law or inequity is brought to enforce or interpret the provisions of this Agreement, the prevailing party in such\naction shall be entitled to reasonable attorney's fees. 11. The Agreement constitutes the sole understanding of the parties\nwith respect to the subject matter hereof and may not be amended or modified except in writing signed by each of the\nparties hereto. IN WITNESS WHEREOF, THE PARTIES HERETO HAVE ENTERED INTO THIS AGREEMENT ON THE DATE SET\nFORTH ABOVE. Disclosing Party: Receiving Party: ACUMED, INC. O.J.I. SURGICAL, INC. By: Randall Huebner By: Harry\nKraus ------=-=-=s-m-emme comemeeeeeeeeee /s/ RANDALL HUEBNER /S/ HARRY KRAUS -----=======mmmmmmm —mommmeeeeeee Signature\nSignature It: President Its: President ------------- -------—-—--—- Date: 4/28/97 Date: 4/21/97 --------=-=-- ====--=----—-	14 ADDENDUM 7 NON-DISCLOSURE AGREEMENT This non-disclosure agreement (the "AGREEMENT")\nis\nentered into this 1ST DAY OF JUNE, 1996 by ACUMED, INC., (the\n"DISCLOSING PARTY") and O.J.I. SURGICAL, INC., its PRINCIPALS, MANAGEMENT and STAFF (the\n"RECEIVING PARTY") for the purpose of preventing the unauthorized disclosure of Confidential Information (as\ndefined below) of the Disclosing Party which may be disclosed to the Receiving Party for the purpose of pursuing\nthe\nestablishment of a business relationship or negotiating any contract or agreement between the Disclosing Party and the\nReceiving Party. For purposes of the agreement, Confidential Information shall mean any and all information relating to\nAcumed Products and Pricing. In consideration of the Disclosing Party's disclosure of Confidential Information to the\nReceiving party, the Receiving Party hereby agrees as follows: 1. The Receiving party shall hold and maintain the\nConfidential Information in strictest confidence and in trust for the sole and exclusive benefit of the Disclosing party\n2.\nThe Receiving party shall not, without the prior written approval of the Disclosing Party, use for its own benefit, publish\nor otherwise disclose to others, or permit the use by others for their benefit or to the detriment of the Disclosing party,\nany of the Confidential Information. 3. The Receiving party shall carefully restrict access to the Confidential Information\nto those of its officers, directors and employees who clearly need such access in order to participate on the behalf of the\nReceiving Party in the analysis and negotiation of a business relationship or any contract or agreement, or the advisability\nthereof,\nwith\nthe\nDisclosing\nParty\n.The\nReceiving\nParty\nfurther\nwarrants\nand\nrepresents\nthat\nit\nwill\nadvise\neach\nof\nthe\npersons to whom it provides access to any of the Confidential Information pursuant to the foregoing sentence that such\npersons are strictly prohibited from making use, publishing or otherwise disclosing to others or permitting others to use\nfor their benefit or to the detriment of the Disclosing Party, any of the Confidential Information. 4. The Receiving Party\nshall take actions necessary to protect the confidentiality of the Confidential Information except for its disclosure\npursuant to paragraph 3 above, and hereby indemnifies the Disclosing Party against any and all losses, damages, claims\nor expenses incurred or suffered by the Disclosing Party as a result of the Receiving Party's breach of this Agreement. 5.\nThis agreement shall continue in full force and effect indefinitely, except that the Receiving Party's obligations hereunder\nshal1 not extend to any of the Confidential Information which the Receiving Party can demonstrate was in the public\ndomain on the date of this Agreement. 6. The Receiving Party understands and acknowledges that any disclosure or\nmisappropriation of any of the Confidential Information in violation of this Agreement may cause the disclosing Party\nirreparable harm, the amount of which may be difficult to ascertain and, therefore, agrees that the Disclosing Party shall\nhave the right to apply to a court of competent jurisdiction for an order restraining any such further disclosure or\nmisappropriation and for such other relief as the Disclosing Party shall deem appropriate, such right of the Disclosing\nParty to be in addition to the remedies otherwise available to the Disclosing Party at law or in equity. 7. The Receiving\nparty shall return to the Disclosing party any and all records, notes and other written, printed or tangible materials\npertaining to the Confidential Information immediately upon written request of the Disclosing Party. 15 8. This\nAgreement and the Receiving Party's obligations hereunder shall be binding upon the representatives, assigns and\nsuccessors\nof\nthe\nReceiving\nParty\nand\nshall\ninure\nto\nthe\nbenefit\nof\nthe\nassigns\nand\nsuccessors\nof\nthe\nDisclosing\nParty\n9.\nThe Agreement shall be governed by and construed in accordance with internal laws of the State of Oregon. 10. If any\naction at law or inequity is brought to enforce or interpret the provisions of this Agreement, the prevailing party in such\naction shall be entitled to reasonable attorney's fees. 11. The Agreement constitutes the sole understanding of the parties\nwith respect to the subject matter hereof and may not be amended or modified except in writing signed by each of the\nparties hereto. IN WITNESS WHEREOF, THE PARTIES HERETO HAVE ENTERED INTO THIS AGREEMENT ON THE DATE SET\nFORTH ABOVE. Disclosing Party: Receiving Party: ACUMED, INC. O.J.I. SURGICAL, INC. By: Randall Huebner By: Harry\nKraus\n/s/ RANDALL HUEBNER /S/ HARRY KRAUS\nSignature\nSignature It: President Its: President\nDate: 4/28/97 Date: 4/21/97	14 ADDENDUM 7 NON-DISCLOSURE AGREEMENT This non-disclosure agreement (the "AGREEMENT") is\nentered into this 1ST DAY OF JUNE, 1996 by ACUMED, INC., (the\n"DISCLOSING PARTY") and O.J .I . SURGICAL, INC., its PRINCIPALS, MANAGEMENT and STAFF (the\n"RECEIVING PARTY") for the purpose of preventing the unauthorized disclosure of Confidential Information (as\ndefined below) of the Disclosing Party which may be disclosed to the Receiving Party for the purpose of pursuing the\nestablishment of a business relationship or negotiating any contract or agreement between the Disclosing Party and the\nReceiving Party. For purposes of the agreement, Confidential Information shall mean any and all information relating to\nAcumed Products and Pricing. In consideration of the Disclosing Party's disclosure of Confidential Information to the\nReceiving party, the Receiving Party hereby agrees as follows: 1. The Receiving party shall hold and maintain the\nConfidential Information in strictest confidence and in trust for the sole and exclusive benefit of the Disclosing party . 2.\nThe Receiving party shall not, without the prior written approval of the Disclosing Party, use for its own benefit, publish\nor otherwise disclose to others, or permit the use by others for their benefit or to the detriment of the Disclosing party,\nany of the Confidential Information. 3. The Receiving party shall carefully restrict access to the Confidential Information\nto those of its officers, directors and employees who clearly need such access in order to participate on the behalf of the\nReceiving Party in the analysis and negotiation of a business relationship or any contract or agreement, or the advisability\nthereof, with the Disclosing Party .The Receiving Party further warrants and represents that it will advise each of the\npersons to whom it provides access to any of the Confidential Information pursuant to the foregoing sentence that such\npersons are strictly prohibited from making use, publishing or otherwise disclosing to others or permitting others to use\nfor their benefit or to the detriment of the Disclosing Party, any of the Confidential Information. 4. The Receiving Party\nshall take actions necessary to protect the confidentiality of the Confidential Information except for its disclosure\npursuant to paragraph 3 above, and hereby indemnifies the Disclosing Party against any and all losses, damages, claims\nor expenses incurred or suffered by the Disclosing Party as a result of the Receiving Party's breach of this Agreement. 5.\nThis agreement shal1 continue in full force and effect indefinitely, except that the Receiving Party's obligations hereunder\nshal1 not extend to any of the Confidential Information which the Receiving Party can demonstrate was in the public\ndomain on the date of this Agreement. 6. The Receiving Party understands and acknowledges that any disclosure or\nmisappropriation of any of the Confidential Information in violation of this Agreement may cause the disclosing Party\nirreparable harm, the amount of which may be difficult to ascertain and, therefore, agrees that the Disclosing Party shall\nhave the right to apply to a court of competent jurisdiction for an order restraining any such further disclosure or\nmisappropriation and for such other relief as the Disclosing Party shall deem appropriate, such right of the Disclosing\nParty to be in addition to the remedies otherwise available to the Disclosing Party at law or in equity. 7. The Receiving\nparty shall return to the Disclosing party any and all records, notes and other written, printed or tangible materials\npertaining to the Confidential Information immediately upon written request of the Disclosing Party. 15 8. This\nAgreement and the Receiving Party's obligations hereunder shall be binding upon the representatives, assigns and\nsuccessors of the Receiving Party and shall inure to the benefit of the assigns and successors of the Disclosing Party. 9.\nThe Agreement shall be governed by and construed in accordance with internal laws of the State of Oregon. 10. If any\naction at law or inequity is brought to enforce or interpret the provisions of this Agreement, the prevailing party in such\naction shall be entitled to reasonable attorney's fees. 11. The Agreement constitutes the sole understanding of the parties\nwith respect to the subject matter hereof and may not be amended or modified except in writing signed by each of the\nparties hereto. IN WITNESS WHEREOF, THE PARTIES HERETO HAVE ENTERED INTO THIS AGREEMENT ON THE DATE SET\nFORTH ABOVE. Disclosing Party: Receiving Party: ACUMED, INC. O.J.I . SURGICAL, INC. By: Randall Huebner By: Harry\nKraus ------------------- --------------- /s/ RANDALL HUEBNER /S/ HARRY KRAUS ------------------- --------------- Signature\nSignature It: President Its: President ------------- -------------- Date: 4/28/97 Date: 4/21/97 ------------- -------------
+af782a84af12408eee79b42ca3d9a416.pdf	effective_date jurisdiction party	CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nTHIS CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT (this “Agreement”) is made effective as of July 15, 2014,\n(and subject to the occurrence of the Merger, as defined below) by and between Realogy Group LLC (together with its parents,\naffiliates, subsidiaries, divisions, successors and assigns (hereinafter collectively referred to as the “Company”), with offices at 175\nPark Avenue, Madison, New Jersey and Charles C. Baker, a prospective employee of the Company (hereinafter “Employee”).\nWHEREAS, the Company is a global provider of real estate and relocation services company serving real estate companies,\ncorporations and financial institutions in support of residential and commercial real estate transactions. The Company employs people\nprimarily to engage in the marketing, sale and support of franchise license agreements.\nWHEREAS, by offer letter of July 15, 2014 herewith the Company has offered employment to Employee, subject to the\nconsummation of the acquisition of ZipRealty Inc. by a subsidiary of Realogy Group LLC (the “Merger”) pursuant to the Agreement\nand Plan of Merger dated as of July 15, 2014 by and among ZipRealty, Inc., Realogy Group LLC and Honeycomb Acquisition, Inc.;\nand\nWHEREAS, in connection with work performed by Employee on behalf of the Company, it may be necessary for the Company\nand/or its clients and customers (collectively, the “Company”) to disclose to Employee certain documentation and information which\nthe Company considers proprietary and confidential, including but not limited to: franchise sales training, market research, customer\nor prospect correspondence whether on paper or in electronic or other form, broker business plans, Company business and strategic\nplans, financial data, regional sales plans, personal broker information, franchise acquisition strategies or candidates, contract or\nlicense expiration dates, renewal targets or candidates, operating procedures, potential franchise candidates, terms of any financing\nmade available generally to franchise candidates or to specific candidates, and any other business terms of any potential franchise,\nfranchise offerings, reports, manuals, contracts, current and prospective client and supplier lists, and all other documentation,\nbusiness knowledge, data, material, property and developments related to the Company, regardless of whether possessed or\ndeveloped by you in the course of your employment or obtained from a customer, prospect, supplier, or employee whether or not\ndesignated as confidential or proprietary by the Company (hereinafter “Confidential Information”); and\nWHEREAS, both parties understand the desire that such documentation and information be maintained in confidence, that it shall be\nused only for the Company’s business purposes and shall not be used in any way in competition with the Company’s business\npurposes, and that any disclosure or competing use thereof would cause irreparable harm to the Company; and\nNOW, THEREFORE, in consideration of the foregoing, including, but not limited to, the Company’s employment of Employee, and\nfor other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and\nEmployee hereby covenant and agree as follows:\n1. In addition to the Confidential Information identified above, the Company may from time to time furnish to Employee financial,\ntechnical, legal, marketing, or other proprietary or confidential reports, analyses, records, pricing information, data, computer\nprograms, systems or output, information, or other material relating to the Company and/or work done for its clients and customers,\nin oral, written or other format, developed by the Company and/or others, which the Company deems and Employee should consider\nproprietary and confidential to, and of independent economic value to, the Company, actual or potential, regardless whether\notherwise protectable under any law, and regardless of protections, lack of markings or dissemination (collectively, the “Company\nConfidential Information”).\n2. Employee agrees that, during the term of Employee’s employment with the Company and thereafter, all Company Confidential\nInformation shall be treated as proprietary and confidential to the Company. Furthermore, Employee agrees that, except in\nfurtherance of the Company’s business, Employee will not disclose or permit disclosure of such Company Confidential Information\nto any third party unless\nand until Employee has obtained the prior written consent of the Company (which may be conditioned upon such third party’s\nexecution of an agreement similar to this one as well as other factors). Without limitation to Employee’s obligations, Employee\nagrees to safeguard all Company Confidential Information in accordance with the Realogy Information Management Policy, as well\nas the applicable information management and protection provisions of the Code of Ethics and Key Polices. As a condition to such\nCompany Confidential Information being furnished to Employee, during the term of Employee’s employment with the Company and\nthereafter, Employee agrees to treat any Company Confidential Information concerning the Company (whether prepared by the\nCompany, its advisors or otherwise, irrespective of the form of communication) which is furnished to Employee in accordance with\nthe provisions of this Agreement and to take or abstain from taking certain other actions hereinafter set forth. Employee further\nagrees that no such Company Confidential Information will be knowingly or negligently misappropriated or used by Employee for\nhis/her own benefit or for the benefit of others except upon the written agreement of the Company and Employee as to the use of such\nCompany Confidential Information. In no event will Employee knowingly or willfully permit Company Confidential Information to\nbe used by any person in competition with or to the detriment of the Company. In addition to the foregoing, in the event that the\nCompany Confidential Information contains any personally identifiable information of the Company’s (and/or its affiliated entities’)\nemployees, clients or customers, Employee agrees to comply at all times with, and maintain and safeguard such information in\naccordance with, (i) the Company’s (and/or its affiliated entities’) then-current privacy policies and procedures, and (ii) any and all\napplicable privacy laws, regulations, statutes, and guidelines.\n3. Employee agrees to assist the Company in obtaining, securing, maintaining, preserving any protections and patents, copyrights,\ntrademarks or design right in and to Company Confidential Information or other information or data that Employee has accessed\nduring employment with the Company, even where such information or data was created, conceived, or designed by Employee solely\nor jointly with other employees of the Company. It is further understood and agreed that all written documentation and all work done\nor prepared by Employee during his employment (the “Works”) with the Company shall be deemed as “work made for hire” for the\nCompany under the United States Copyright Laws (17 U.S.C . Section 101, and any amendments thereto) and ownership of all such\nWorks shall be held at all time by the Company. If for any reason the Works are held not to be “work made for hire,” Employee\nhereby assigns all its right, title and interest in and to the Works to the Company.\n4. All Company Confidential Information transmitted or disclosed hereunder will be and remain the property of the Company and the\nCompany may notify Employee in writing that all such Company Confidential Information and any copies thereof shall be returned\nto the Company. Promptly upon request from the Company, Employee shall redeliver to the Company all tangible Company\nConfidential Information, and any other tangible material containing, prepared on the basis of, or reflecting any information in the\nCompany Confidential Information, (whether prepared by the parties, their advisors or otherwise), including all reports, analyses,\ncompilations, studies and other materials containing or based on the Company Confidential Information, or reflecting the review of,\nor interest in, the Company’s business, and will not retain any copies, extracts or other reproductions in whole or in part of such\nCompany Confidential Information.\n5. In acknowledging the unique and proprietary nature of the Company Confidential Information, the parties further understand and\nagree that money damages may not be a sufficient remedy for any breach of this Agreement by Employee and that the Company may\nsuffer great and irreparable injury as a consequence of such breach; therefore, the Company shall be entitled to seek equitable relief,\nincluding injunction and specific performance as a remedy for such breach. The Company may seek a court order or injunction\nwithout further notice to protect the confidentiality of its information and to halt any unauthorized disclosure thereof. Such remedies\nshall not be deemed to be exclusive remedies for a breach by Employee but shall be in addition to all other remedies provided\nhereunder or available at law or equity to the Company.\n6. If Employee is served with a subpoena or other process requiring the production or disclosure of Company Confidential\nInformation, then the Employee, before complying with such subpoena or other process, shall immediately notify the Company of\nsame and permit the Company a reasonable period of time to intervene and contest disclosure or production. Employee will cooperate\nin seeking, performing and enforcing a protective order for the Company Confidential Information.\n7. The Employee may not assign or otherwise transfer any of his rights or obligations under this Agreement to any third party without\nthe prior written consent of the Company. No permitted assignment shall relieve the Employee of his obligations hereunder with\nrespect to Company Confidential Information disclosed prior to the assignment. Any assignment in violation of this Section shall be\nnull and void.\n8. THIS AGREEMENT DOES NOT MODIFY OR ALTER, IN ANY WAY THE AT-WILL NATURE OF EMPLOYEE’S\nEMPLOYMENT. EMPLOYEE’S EMPLOYMENT IS AT-WILL, WHICH MEANS THAT EITHER EMPLOYEE OR\nCOMPANY CAN TERMINATE THE EMPLOYMENT RELATIONSHIP AT ANY TIME, FOR ANY LAWFUL REASON,\nWITH OR WITHOUT NOTICE. THE AT-WILL NATURE OF SUCH EMPLOYMENT CAN ONLY BE MODIFIED BY A\nWRITING SIGNED BY THE COMPANY’S PRESIDENT OR GENERAL COUNSEL.\n9. With the exception of the letter from the Company offering employment to the Employee which is being presented to Employee on\ngiven date, this Agreement constitutes the entire agreement and understanding of the parties on the subject matter hereof and\nsupersedes all prior communications, agreements, and understandings, whether written or oral, relating thereto. This Agreement may\nbe modified only by further written agreement signed by each of the parties hereto. This Agreement will be governed in all respects\nby the laws of the State of New Jersey.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date indicated above.\nREALOGY GROUP LLC\nEMPLOYEE\nBy:\n/s/ David J. Weaving\nBy:/s/ Charles C. Baker\nName:\nDavid J. Weaving\nName:\nCharles C. Baker\nTitle:\nEVP/CAO\nTitle:15 July 2014	CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nTHIS CONFIDENTIALITY AND NONDISCLO SURE AGREEMENT (this ”A greement”) is made effective as ofJuly 15, 2014,\n(and subject to the occurrence of the Merger, as defined below) by and between Realogy Group LLC (together with its parents,\naffiliates, subsidiaries, divisions, successors and assigns (hereinafter collectively referred to as the ”Company”), with offices at 175\nPark Avenue, Madison, New Jersey and Charles C. Baker, a prospective employee of the Company (hereinafter ”Employee”).\nWHEREAS, the Company is a global provider of real estate and relocation services company serving real estate companies,\ncorporations and financial institutions in support of residential and commercial real estate transactions. The Company employs people\nprimarily to engage in the marketing, sale and support of franchise license agreements.\nWHEREAS, by offer letter of July 15, 2014 herewith the Company has offered employment to Employee, subject to the\nconsummation of the acquisition of ZipRealty Inc. by a subsidiary of Realogy Group LLC (the ”Merger”) pursuant to the Agreement\nand Plan of Merger dated as of July 15, 2014 by and among ZipRealty, Inc., Realogy Group LLC and Honeycomb Acquisition, Inc.;\nand\nWHEREA S, in connection with work performed by Employee on behalf of the Company, it may be necessary for the Company\nand/or its clients and customers (collectively, the ”Company") to disclose to Employee certain documentation and information which\nthe Company considers proprietary and confidential, including but not limited to: franchise sales training, market research, customer\nor prospect correspondence whether on paper or in electronic or other form, broker business plans, Company business and strategic\nplans, financial data, regional sales plans, personal broker information, franchise acquisition strategies or candidates, contract or\nlicense expiration dates, renewal targets or candidates, operating procedures, potential franchise candidates, terms of any financing\nmade available generally to franchise candidates or to specific candidates, and any other business terms of any potential franchise,\nfranchise offerings, reports, manuals, contracts, current and prospective client and supplier lists, and all other documentation,\nbusiness knowledge, data, material, property and developments related to the Company, regardless of whether possessed or\ndeveloped by you in the course of your employment or obtained from a customer, prospect, supplier, or employee whether or not\ndesignated as confidential or proprietary by the Company (hereinafter ”Confidential Information”); and\nWHEREA S, both parties understand the desire that such documentation and information be maintained in confidence, that it shall be\nused only for the Company' s business purposes and shall not be used in any way in competition with the Company' s business\npurposes, and that any disclosure or competing use thereof would cause irreparable harm to the Company; and\nNOW, THEREFORE, in consideration of the foregoing, including, but not limited to, the Company' s employment of Employee, and\nfor other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and\nEmployee hereby covenant and agree as follows:\n1. In addition to the Confidential Information identified above, the Company may from time to time furnish to Employee financial,\ntechnical, legal, marketing, or other proprietary or confidential reports, analyses, records, pricing information, data, computer\nprograms, systems or output, information, or other material relating to the Company and/or work done for its clients and customers,\nin oral, written or other format, developed by the Company and/or others, which the Company deems and Employee should consider\nproprietary and confidential to, and of independent economic value to, the Company, actual or potential, regardless whether\notherwise protectable under any law, and regardless of protections, lack of markings or dissemination (collectively, the ”Company\nConfidential Information”).\n2. Employee agrees that, during the term of Employee' s employment with the Company and thereafter, all Company Confidential\nInformation shall be treated as proprietary and confidential to the Company. Furthermore, Employee agrees that, except in\nfurtherance of the Company' s business, Employee will not disclose or permit disclosure of such Company Confidential Information\nto any third party unless\n \nand until Employee has obtained the prior written consent of the Company (which may be conditioned upon such third party’ s\nexecution of an agreement similar to this one as well as other factors). Without limitation to Employee' s obligations, Employee\nagrees to safeguard all Company Confidential Information in accordance with the Realogy Information Management Policy, as well\nas the applicable information management and protection provisions of the Code of Ethics and Key Polices. As a condition to such\nCompany Confidential Information being furnished to Employee, during the term of Employee' s employment with the Company and\nthereafter, Employee agrees to treat any Company Confidential Information concerning the Company (whether prepared by the\nCompany, its advisors or otherwise, irrespective of the form of communication) which is furnished to Employee in accordance with\nthe provisions of this Agreement and to take or abstain from taking certain other actions hereinafter set forth. Employee further\nagrees that no such Company Confidential Information will be knowingly or negligently misappropriated or used by Employee for\nhis/her own benefit or for the benefit of others except upon the written agreement of the Company and Employee as to the use of such\nCompany Confidential Information. In no event will Employee knowingly or willfully permit Company Confidential Information to\nbe used by any person in competition with or to the detriment of the Company. In addition to the foregoing, in the event that the\nCompany Confidential Information contains any personally identifiable information of the Company's (and/or its affiliated entities’)\nemployees, clients or customers, Employee agrees to comply at all times with, and maintain and safeguard such information in\naccordance with, (i) the Company's (and/or its affiliated entities') then- current privacy policies and procedures, and (ii) any and all\napplicable privacy laws, regulations, statutes, and guidelines.\n3. Employee agrees to assist the Company in obtaining, securing, maintaining, preserving any protections and patents, copyrights,\ntrademarks or design right in and to Company Confidential Information or other information or data that Employee has accessed\nduring employment with the Company, even where such information or data was created, conceived, or designed by Employee solely\nor jointly with other employees of the Company. It is further understood and agreed that all written documentation and all work done\nor prepared by Employee during his employment (the ”W orks") with the Company shall be deemed as ”work made for hire" for the\nCompany under the United States Copyright Laws (17 U.S.C. Section 101, and any amendments thereto) and ownership of all such\nWorks shall be held at all time by the Company. If for any reason the Works are held not to be ”work made for hire, ” Employee\nhereby assigns all its right, title and interest in and to the Works to the Company.\n4. All Company Confidential Information transmitted or disclosed hereunder will be and remain the property of the Company and the\nCompany may notify Employee in writing that all such Company Confidential Information and any copies thereof shall be returned\nto the Company. Promptly upon request from the Company, Employee shall redeliver to the Company all tangible Company\nConfidential Information, and any other tangible material containing, prepared on the basis of, or reflecting any information in the\nCompany Confidential Information, (whether prepared by the parties, their advisors or otherwise), including all reports, analyses,\ncompilations, studies and other materials containing or based on the Company Confidential Information, or reflecting the review of,\nor interest in, the Company's business, and will not retain any copies, extracts or other reproductions in whole or in part of such\nCompany Confidential Information.\n5. In acknowledging the unique and proprietary nature of the Company Confidential Information, the parties further understand and\nagree that money damages may not be a sufficient remedy for any breach of this Agreement by Employee and that the Company may\nsuffer great and irreparable injury as a consequence of such breach; therefore, the Company shall be entitled to seek equitable relief,\nincluding injunction and specific performance as a remedy for such breach. The Company may seek a court order or injunction\nwithout further notice to protect the confidentiality of its information and to halt any unauthorized disclosure thereof. Such remedies\nshall not be deemed to be exclusive remedies for a breach by Employee but shall be in addition to all other remedies provided\nhereunder or available at law or equity to the Company.\n \n6. If Employee is served with a subpoena or other process requiring the production or disclosure of Company Confidential\nInformation, then the Employee, before complying with such subpoena or other process, shall immediately notify the Company of\nsame and permit the Company a reasonable period of time to intervene and contest disclosure or production. Employee will cooperate\nin seeking, performing and enforcing a protective order for the Company Confidential Information.\n7. The Employee may not assign or otherwise transfer any of his rights or obligations under this Agreement to any third party without\nthe prior written consent of the Company. No permitted assignment shall relieve the Employee of his obligations hereunder with\nrespect to Company Confidential Information disclosed prior to the assignment. Any assignment in violation of this Section shall be\nnull and void.\n8. THIS AGREEMENT DOES NOT MODIFY OR ALTER, IN ANY WAY THE AT-WILL NATURE OF EMPLOYEE’S\nEMPLOYMENT. EMPLOYEE’S EMPLOYMENT IS AT-WILL, WHICH MEANS THAT EITHER EMPLOYEE OR\nCOMPANY CAN TERMINATE THE EMPLOYMENT RELATIONSHIP AT ANY TIME, FOR ANY LAWFUL REASON,\nWITH OR WITHOUT NOTICE. THE AT-WILL NATURE OF SUCH EMPLOYMENT CAN ONLY BE MODIFIED BY A\nWRITING SIGNED BY THE COMPANY’S PRESIDENT OR GENERAL COUNSEL.\n9. With the exception of the letter from the Company offering employment to the Employee which is being presented to Employee on\ngiven date, this Agreement constitutes the entire agreement and understanding of the parties on the subject matter hereof and\nsupersedes all prior communications, agreements, and understandings, whether written or oral, relating thereto. This A greement may\nbe modified only by further written agreement signed by each of the parties hereto. This Agreement will be governed in all respects\nby the laws of the State of NewJersey.\nIN WITNESS WHEREOE, the parties hereto have executed this Agreement effective as of the date indicated above.\nREALOGY GROUP LLC EMPLOYEE\nBy: /s/ DavidJ. Weaving By:/s/ Charles C. Baker\nName: av1 . eav1ng NarEéIar es C. Baker\nTitle: EVP/CAO Titlé5July 2014	CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nTHIS CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT (this "Agreement") is made effective as of July 15, 2014,\n(and subject to the occurrence of the Merger, as defined below) by and between Realogy Group LLC (together with its parents,\naffiliates, subsidiaries, divisions, successors and assigns (hereinafter collectively referred to as the "Company"), with offices at 175\nPark venue, Madison, New Jersey and Charles C. Baker, a prospective employee of the Company (hereinafter "Employee").\nWHEREAS, the Company is a global provider of real estate and relocation services company serving real estate companies,\ncorporations and financial institutions in support of residential and commercial real estate transactions The Company employs people\nprimarily to engage in the marketing, sale and support of franchise license agreements.\nWHEREAS, by offer letter of July 15, 2014 herewith the Company has offered employment to Employee, subject to the\nconsummation of the acquisition of ZipRealty Inc. by a subsidiary of Realogy Group LLC (the "Merger") pursuant to the greement\nand Plan of Merger dated as of July 15, 2014 by and among ZipRealty, Inc., Realogy Group LLC and Honeycomb A cquisition, Inc.;\nand\nWHEREAS, in connection with work performed by Employee on behalf of the Company, it may be necessary for the Company\nand/or its clients and customers (collectively, the "Company") to disclose to Employee certain documentation and information which\nthe Company considers proprietary and confidential, including but not limited to: franchise sales training, market research, customer\nor prospect correspondence whether on paper or in electronic or other form, broker business plans, Company business and strategic\nplans, financial data, regional sales plans, personal broker information, franchise acquisition strategies or candidates, contract or\nlicense expiration dates, renewal targets or candidates, operating procedures, potential franchise candidates, terms of any financing\nmade available generally to franchise candidates or to specific candidates, and any other business terms of any potential franchise,\nfranchise offerings, reports, manuals, contracts, current and prospective client and supplier lists, and all other documentation,\nbusiness knowledge, data, material, property and developments related to the Company, regardless of whether possessed or\ndeveloped by you in the course of your employment or obtained from a customer, prospect, supplier, or employee whether or not\ndesignated as confidential or proprietary by the Company (hereinafter "Confidential Information"); and\nWHEREAS, both parties understand the desire that such documentation and information be maintained in confidence, that it shall be\nused only for the Company's business purposes and shall not be used in any way in competition with the Company's business\npurposes, and that any disclosure or competing use thereof would cause irreparable harm to the Company; and\nNOW, THEREFORE, in consideration of the foregoing, including, but not limited to, the Company's employment of Employee, and\nfor other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and\nEmployee hereby covenant and agree as follows:\n1. In addition to the Confidential Information identified above, the Company may from time to time furnish to Employee financial,\ntechnical, legal, marketing, or other proprietary or confidential reports, analyses, records, pricing inforation, data, computer\nprograms, systems or output, information, or other material relating to the Company and/or work done for its clients and customers,\nin oral, written or other format, developed by the Company and/or others, which the Company deems and Employee should consider\nproprietary and confidential to, and of independent economic value to, the Company, actual or potential, regardless whether\notherwise protectable under any law, and regardless of protections, lack of markings or dissemination (collectively, the "Company\nConfidential Information").\n2. Employee agrees that, during the term of Employee's employment with the Company and thereafter, all Company Confidential\nInformation shall be treated as proprietary and confidential to the Company. Furthermore, Employee agrees that except in\nfurtherance of the Company's business, Employee will not disclose or permit disclosure of such Company Confidential Information\nto any third party unless\nand until Employee has obtained the prior written consent of the Company (which may be conditioned upon such third party's\nexecution of an agreement similar to this one as well as other factors). Without limitation to Employee's obligations, Employee\nagrees to safeguard all Company Confidential Information in accordance with the Realogy Information Management Policy, as well\nas the applicable information management and protection provisions of the Code of Ethics and Key Polices. As a condition to such\nCompany Confidential Information being furnished to Employee, during the term of Employee's employment with the Company and\nthereafter, Employee agrees to treat any Company Confidential Information concerning the Company (whether prepared by the\nCompany, its advisors or otherwise, irrespective of the form of communication) which is furnished to Employee in accordance with\nthe provisions of this A greement and to take or abstain from taking certain other actions hereinafter set forth. Employee further\nagrees that no such Company Confidential Information will be knowingly or negligently misappropriated or used by Employee for\nhis/her own benefit or for the benefit of others except upon the written agreement of the Company and Employee as to the use of such\nCompany Confidential Information In no event will Employee knowingly or willfully permit Company Confidential Information to\nbe used by any person in competition with or to the detriment of the Company. In addition to the foregoing, in the event that the\nCompany Confidential Information contains any personally identifiable information of the Company's (and/or its affiliated entities')\nemployees, clients or customers, Employee agrees to comply at all times with, and maintain and safeguard such information in\naccordance with, (i) the Company's (and/or its affiliated entities') then-current privacy policies and procedures, and (ii) any and all\napplicable privacy laws, regulations, statutes, and guidelines.\n3. Employee agrees to assist the Company in obtaining, securing, maintaining, preserving any protections and patents, copyrights,\ntrademarks or design right in and to Company Confidential Information or other information or data that Employee has accessed\nduring employment with the Company, even where such information or data was created, conceived, or designed by Employee solely\nor jointly with other employees of the Company It is further understood and agreed that all written documentation and all work done\nor prepared by Employee during his employment (the "Works") with the Company shall be deemed as "work made for hire" for the\nCompany under the United States Copyright Laws (17 U.S.C. Section 101, and any amendments thereto) and ownership of all such\nWorks shall be held at all time by the Company. If for any reason the Works are held not to be "work made for hire," Employee\nhereby assigns all its right, title and interest in and to the Works to the Company.\n4. All Company Confidential Information transmitted or disclosed hereunder will be and remain the property of the Company and the\nCompany may notify Employee in writing that all such Company Confidential Information and any copies thereof shall be returned\nto the Company. Promptly upon request from the Company, Employee shall redeliver to the Company all tangible Company\nConfidential Information, and any other tangible material containing, prepared on the basis of, or reflecting any information in the\nCompany Confidential Information, (whether prepared by the parties, their advisors or otherwise), including all reports, analyses,\ncompilations, studies and other materials containing or based on the Company Confidential Information, or reflecting the review\nof,\nor interest in, the Company's business, and will not retain any copies, extracts or other reproductions in whole or in part of such\nCompany Confidential Information.\n5. In acknowledging the unique and proprietary nature of the Company Confidentia Information, the parties further understand\nand\nagree that money damages may not be a sufficient remedy for any breach of this A greement by Employee and that the Company may\nsuffer great and irreparable injury as a consequence of such breach; therefore, the Company shall be entitled to seek equitable relief,\nincluding injunction and specific performance as a remedy for such breach. The Company may seek a court order or injunction\nwithout further notice to protect the confidentiality of its information and to halt any unauthorized disclosure thereof. Such remedies\nshall not be deemed to be exclusive remedies for a breach by Employee but shall be in addition to all other remedies provided\nhereunder or available at law or equity to the Company.\n6. If Employee is served with a subpoena or other process requiring the production or disclosure of Company Confidential\nInformation, then the Employee, before complying with such subpoena or other process, shall immediately notify the Company of\nsame and permit the Company a reasonable period of time to intervene and contest disclosure or production Employee will cooperate\nin seeking, performing and enforcing a protective order for the Company Confidential Information.\n7. The Employee may not assign or otherwise transfer any of his rights or obligations under this A greement to any third party without\nthe prior written consent of the Company. No permitted assignment shall relieve the Employee of his obligations hereunder with\nrespect to Company Confidential Information disclosed prior to the assignment. Any assignment in violation of this Section shall be\nnull and void.\n8. THIS AGREEMENT DOES NOT MODIFY OR ALTER, IN ANY WAY THE AT-WILL NATURE OF EMPLOYEE'S\nEMPLOYMENT. EMPLOYEE'S EMPLOYM MENT IS AT-WILL, WHICH MEANS THAT EITHER EMPLOYEE OR\nCOMPANY CAN TERMINATE THE EMPLOYMENT RELATIONSHIP AT ANY TIME, FOR ANY LAWFUL REASON,\nWITH OR WITHOUT NOTICE. THE AT-WILL NATURE OF SUCH EMPLOYMENT CAN ONLY BE MODIFIED BY A\nWRITING SIGNED BY THE COMPANY'S PRESIDENT OR GENERAL COUNSEL.\n9. With the exception of the letter from the Company offering employment to the Employee which is being presented to Employee on\ngiven date, this A greement constitutes the entire agreement and understanding of the parties on the subject matter hereof and\nsupersedes all prior communications, agreements, and understandings, whether written or oral, relating thereto. This A greement may\nbe modified only by further written agreement signed by each of the parties hereto. This A greement will be governed in all respects\nby the laws of the State of New Jersey.\nIN WITNESS WHEREOF, the parties hereto have executed this A greement effective as of the date indicated above.\nREALOGY GROUP LLC\nEMPLOYEE\nBy:\n/s/ David J. Weaving\nBy:/s/ Charles C. Baker\nName:\nDavidj. Weaving\nNarbearles C. Baker\nTitle:\nEVP/CAO\nTitle5 July 2014	CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nTHIS CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT (this “Agreement”) is made effective as of July 15, 2014,\n(and subject to the occurrence of the Merger, as defined below) by and between Realogy Group LLC (together with its parents,\naffiliates, subsidiaries, divisions, successors and assigns (hereinafter collectively referred to as the “Company”), with offices at 175\nPark Avenue, Madison, New Jersey and Charles C. Baker, a prospective employee of the Company (hereinafter “Employee”).\nWHEREAS, the Company is a global provider of real estate and relocation services company serving real estate companies,\ncorporations and financial institutions in support of residential and commercial real estate transactions. The Company employs people\nprimarily to engage in the marketing, sale and support of franchise license agreements.\nWHEREAS, by offer letter of July 15, 2014 herewith the Company has offered employment to Employee, subject to the\nconsummation of the acquisition of ZipRealty Inc. by a subsidiary of Realogy Group LLC (the “Merger”) pursuant to the Agreement\nand Plan of Merger dated as of July 15, 2014 by and among ZipRealty, Inc., Realogy Group LLC and Honeycomb Acquisition, Inc.;\nand\nWHEREAS, in connection with work performed by Employee on behalf of the Company, it may be necessary for the Company\nand/or its clients and customers (collectively, the “Company”) to disclose to Employee certain documentation and information which\nthe Company considers proprietary and confidential, including but not limited to: franchise sales training, market research, customer\nor prospect correspondence whether on paper or in electronic or other form, broker business plans, Company business and strategic\nplans, financial data, regional sales plans, personal broker information, franchise acquisition strategies or candidates, contract or\nlicense expiration dates, renewal targets or candidates, operating procedures, potential franchise candidates, terms of any financing\nmade available generally to franchise candidates or to specific candidates, and any other business terms of any potential franchise,\nfranchise offerings, reports, manuals, contracts, current and prospective client and supplier lists, and all other documentation,\nbusiness knowledge, data, material, property and developments related to the Company, regardless of whether possessed or\ndeveloped by you in the course of your employment or obtained from a customer, prospect, supplier, or employee whether or not\ndesignated as confidential or proprietary by the Company (hereinafter “Confidential Information”); and\nWHEREAS, both parties understand the desire that such documentation and information be maintained in confidence, that it shall be\nused only for the Company’s business purposes and shall not be used in any way in competition with the Company’s business\npurposes, and that any disclosure or competing use thereof would cause irreparable harm to the Company; and\nNOW, THEREFORE, in consideration of the foregoing, including, but not limited to, the Company’s employment of Employee, and\nfor other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and\nEmployee hereby covenant and agree as follows:\n1. In addition to the Confidential Information identified above, the Company may from time to time furnish to Employee financial,\ntechnical, legal, marketing, or other proprietary or confidential reports, analyses, records, pricing information, data, computer\nprograms, systems or output, information, or other material relating to the Company and/or work done for its clients and customers,\nin oral, written or other format, developed by the Company and/or others, which the Company deems and Employee should consider\nproprietary and confidential to, and of independent economic value to, the Company, actual or potential, regardless whether\notherwise protectable under any law, and regardless of protections, lack of markings or dissemination (collectively, the “Company\nConfidential Information”).\n2. Employee agrees that, during the term of Employee’s employment with the Company and thereafter, all Company Confidential\nInformation shall be treated as proprietary and confidential to the Company. Furthermore, Employee agrees that, except in\nfurtherance of the Company’s business, Employee will not disclose or permit disclosure of such Company Confidential Information\nto any third party unless\nand until Employee has obtained the prior written consent of the Company (which may be conditioned upon such third party’s\nexecution of an agreement similar to this one as well as other factors). Without limitation to Employee’s obligations, Employee\nagrees to safeguard all Company Confidential Information in accordance with the Realogy Information Management Policy, as well\nas the applicable information management and protection provisions of the Code of Ethics and Key Polices. As a condition to such\nCompany Confidential Information being furnished to Employee, during the term of Employee’s employment with the Company and\nthereafter, Employee agrees to treat any Company Confidential Information concerning the Company (whether prepared by the\nCompany, its advisors or otherwise, irrespective of the form of communication) which is furnished to Employee in accordance with\nthe provisions of this Agreement and to take or abstain from taking certain other actions hereinafter set forth. Employee further\nagrees that no such Company Confidential Information will be knowingly or negligently misappropriated or used by Employee for\nhis/her own benefit or for the benefit of others except upon the written agreement of the Company and Employee as to the use of such\nCompany Confidential Information. In no event will Employee knowingly or willfully permit Company Confidential Information to\nbe used by any person in competition with or to the detriment of the Company. In addition to the foregoing, in the event that the\nCompany Confidential Information contains any personally identifiable information of the Company’s (and/or its affiliated entities’)\nemployees, clients or customers, Employee agrees to comply at all times with, and maintain and safeguard such information in\naccordance with, (i) the Company’s (and/or its affiliated entities’) then-current privacy policies and procedures, and (ii) any and all\napplicable privacy laws, regulations, statutes, and guidelines.\n3. Employee agrees to assist the Company in obtaining, securing, maintaining, preserving any protections and patents, copyrights,\ntrademarks or design right in and to Company Confidential Information or other information or data that Employee has accessed\nduring employment with the Company, even where such information or data was created, conceived, or designed by Employee solely\nor jointly with other employees of the Company. It is further understood and agreed that all written documentation and all work done\nor prepared by Employee during his employment (the “Works”) with the Company shall be deemed as “work made for hire” for the\nCompany under the United States Copyright Laws (17 U.S.C . Section 101, and any amendments thereto) and ownership of all such\nWorks shall be held at all time by the Company. If for any reason the Works are held not to be “work made for hire,” Employee\nhereby assigns all its right, title and interest in and to the Works to the Company.\n4. All Company Confidential Information transmitted or disclosed hereunder will be and remain the property of the Company and the\nCompany may notify Employee in writing that all such Company Confidential Information and any copies thereof shall be returned\nto the Company. Promptly upon request from the Company, Employee shall redeliver to the Company all tangible Company\nConfidential Information, and any other tangible material containing, prepared on the basis of, or reflecting any information in the\nCompany Confidential Information, (whether prepared by the parties, their advisors or otherwise), including all reports, analyses,\ncompilations, studies and other materials containing or based on the Company Confidential Information, or reflecting the review of,\nor interest in, the Company’s business, and will not retain any copies, extracts or other reproductions in whole or in part of such\nCompany Confidential Information.\n5. In acknowledging the unique and proprietary nature of the Company Confidential Information, the parties further understand and\nagree that money damages may not be a sufficient remedy for any breach of this Agreement by Employee and that the Company may\nsuffer great and irreparable injury as a consequence of such breach; therefore, the Company shall be entitled to seek equitable relief,\nincluding injunction and specific performance as a remedy for such breach. The Company may seek a court order or injunction\nwithout further notice to protect the confidentiality of its information and to halt any unauthorized disclosure thereof. Such remedies\nshall not be deemed to be exclusive remedies for a breach by Employee but shall be in addition to all other remedies provided\nhereunder or available at law or equity to the Company.\n6. If Employee is served with a subpoena or other process requiring the production or disclosure of Company Confidential\nInformation, then the Employee, before complying with such subpoena or other process, shall immediately notify the Company of\nsame and permit the Company a reasonable period of time to intervene and contest disclosure or production. Employee will cooperate\nin seeking, performing and enforcing a protective order for the Company Confidential Information.\n7. The Employee may not assign or otherwise transfer any of his rights or obligations under this Agreement to any third party without\nthe prior written consent of the Company. No permitted assignment shall relieve the Employee of his obligations hereunder with\nrespect to Company Confidential Information disclosed prior to the assignment. Any assignment in violation of this Section shall be\nnull and void.\n8. THIS AGREEMENT DOES NOT MODIFY OR ALTER, IN ANY WAY THE AT-WILL NATURE OF EMPLOYEE’S\nEMPLOYMENT. EMPLOYEE’S EMPLOYMENT IS AT-WILL, WHICH MEANS THAT EITHER EMPLOYEE OR\nCOMPANY CAN TERMINATE THE EMPLOYMENT RELATIONSHIP AT ANY TIME, FOR ANY LAWFUL REASON,\nWITH OR WITHOUT NOTICE. THE AT-WILL NATURE OF SUCH EMPLOYMENT CAN ONLY BE MODIFIED BY A\nWRITING SIGNED BY THE COMPANY’S PRESIDENT OR GENERAL COUNSEL.\n9. With the exception of the letter from the Company offering employment to the Employee which is being presented to Employee on\ngiven date, this Agreement constitutes the entire agreement and understanding of the parties on the subject matter hereof and\nsupersedes all prior communications, agreements, and understandings, whether written or oral, relating thereto. This Agreement may\nbe modified only by further written agreement signed by each of the parties hereto. This Agreement will be governed in all respects\nby the laws of the State of New Jersey.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date indicated above.\nREALOGY GROUP LLC\nEMPLOYEE\nBy:\n/s/ David J. Weaving\nBy:/s/ Charles C. Baker\nName:\nDavid J. Weaving\nName:\nCharles C. Baker\nTitle:\nEVP/CAO\nTitle:15 July 2014
+af7e0fefad62fc589c126cd4cd44dbf3.pdf	effective_date jurisdiction party term	EX-99.(D)(5) 19 dex99d5.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(5)\nHTE, Inc.\n149 South Ridgewood Avenue, Suite 550\nDaytona Beach, FL 32114\nSeptember 5, 2002\nSunGard Data Systems Inc.\n1285 Drummers Lane\nWayne, PA 19087-1586\nCONFIDENTIALITY/NONDISCLOSURE AGREEMENT\nLadies and Gentlemen:\nIn connection with our discussions concerning a possible negotiated business arrangement (the “Proposed Transaction”) between HTE, Inc.\n(“HTE”) and SunGard Data Systems Inc. (“SunGard”), or an affiliate thereof, certain non-public confidential and proprietary information may be\nfurnished to SunGard or its directors, officers, employees, affiliates, representatives (including, without limitation, SunGard’s financial advisors,\nattorneys and accountants), agents and controlling persons (collectively, “SunGard’s Representatives”) by HTE or its directors, officers, employees\naffiliates, representatives (including, without limitation, HTE’s financial advisors, attorneys and accountants) or agents (collectively “HTE’s\nRepresentatives”), upon SunGard’s execution and delivery to us of this Agreement. Such information (“Confidential Information”) includes any oral\nor written non-public information furnished by HTE or HTE’s Representatives (or that may otherwise be obtained by SunGard from one or more\nconversations with HTE or HTE’s Representatives or by an inspection of HTE’s facilities), whether before, on or after the date hereof, regardless of\nthe manner in which it is furnished, to SunGard or SunGard’s Representatives, together with all analyses, compilation, forecasts, studies or other\ndocuments prepared by SunGard or SunGard’s Representatives, to the extent they contain or reflect any such information of a business or technical\nnature, including, without limitation, inventions, trade secrets, ideas, processes, formulas, source codes, works of authorship, know-how,\nimprovements, discoveries, developments, designs and techniques, and software, as well as information regarding plans for research, development,\nnew products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, and suppliers and\ncustomers, as well as the nature and proposed terms and conditions of the Proposed Transaction itself.\nIn order to induce HTE to enter into negotiations regarding the Proposed Transaction, and in consideration of same, SunGard agrees that any\nConfidential Information received shall be held in strict confidence by SunGard and SunGard’s Representatives; shall be used by SunGard and\nSunGard’s Representatives only in connection with evaluating the Proposed Transaction; shall not be disclosed, directly or indirectly, by SunGard or\nSunGard’s Representatives to anyone except SunGard’s Representatives who use such information for the purpose of evaluating the Proposed\nTransaction; and shall not be disclosed, directly or indirectly, to third parties without the prior written consent of HTE. Among other things, SunGard\nshall not, directly or indirectly, disclose or otherwise use any Confidential Information in deciding to (or advising others to) buy, sell or\n1\notherwise deal in securities of HTE. Without limiting the generality of the foregoing, SunGard shall exercise no less care to safeguard the\nConfidential Information than SunGard exercises in safeguarding SunGard’s own non-public, confidential and proprietary information. In addition,\nSunGard shall not, without the prior written consent of HTE, disclose to any third party the fact that Confidential Information has been made\navailable or that discussions or negotiations are taking place concerning the Proposed Transaction. SunGard shall cause SunGard’s Representatives\nto observe the terms of this Agreement, and SunGard shall be responsible for any breach of this Agreement by any of SunGard’s Representatives.\nSunGard shall promptly notify HTE of any breach of this Agreement by SunGard or SunGard’s Representatives, and shall cooperate fully in\npursuing any lawful remedies therefor.\nThe foregoing restrictions on SunGard’s disclosure and use of Confidential Information shall not apply to the extent that such information: (a)\nis or becomes generally available to the public other than as a result of a disclosure by SunGard or SunGard’s Representatives; (b) becomes available\nto SunGard on a nonconfidential basis from a person other than HTE or HTE’s Representatives who is not bound by a confidentiality agreement with\nHTE or any of HTE’s Representatives, or is not otherwise under an obligation to HTE or any of HTE’s Representatives not to transmit the\ninformation to SunGard; or (c) has been or is independently developed by SunGard; provided, however, that SunGard shall have the burden of proof\nrespecting (b) and (c) of the aforementioned events on which SunGard relies as relieving SunGard of any restrictions hereunder, and provided\nfurther, that in the case of (a), (b) and/or (c) above, the removal of restrictions shall be effective only as of the date of occurrence of the applicable\nevent.\nIn the event that SunGard or any of SunGard’s Representatives are or is requested pursuant to, or required by, applicable law or regulation or\nby legal process to disclose any Confidential Information, SunGard agrees that it will provide HTE with prompt written notice of such request or\nrequirement in order to enable HTE to seek an appropriate protective order or other remedy, to consult with SunGard with respect to HTE’s taking\nsteps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in part, with the terms of this Agreement. If\nno such protective order or other remedy is obtained or HTE waives compliance with the terms of this Agreement, SunGard or SunGard’s\nRepresentatives will furnish only that portion of the Confidential Information which SunGard is reasonably advised by its counsel is legally required\nto be furnished and SunGard will use its reasonable efforts to ensure that all Confidential Information and other information that is so disclosed will\nbe accorded confidential treatment. Notwithstanding the foregoing to the contrary, SunGard’s Legal Department may retain, for archival purposes\nonly, one confidential copy of any Confidential Information presented to SunGard’s Board of Directors regarding the Proposed Transaction.\nSunGard will inform HTE which of the Confidential Information SunGard has retained for this purpose.\nSunGard also agrees that for a period of two years from the date of this Agreement SunGard will not, without the prior written consent of\nHTE: (a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, greater than five percent (5%) of any\nsecurities (whether equity, debt, convertible or any other type of securities), or direct or indirect rights to acquire greater than five percent (5%) of\nany securities, of HTE; (b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in\nthe rules of the Securities and Exchange Commission), or seek to advise or influence any person or entity with\n2\nrespect to the voting of any voting securities of HTE or any subsidiary thereof; (c) make any public announcement with respect to, or submit a\nproposal for, or offer of (with or without conditions) any extraordinary transaction involving HTE or any subsidiary thereof or any of its or their\nsecurities or assets; or (d) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended, in connection with any of the foregoing.\nThe furnishing of Confidential Information shall not constitute or be construed as a grant of any express or implied license or other right, or a\ncovenant not to sue or forbearance from any other right of action (except as to permitted activities hereunder), by HTE to SunGard or SunGard’s\nRepresentatives under any of HTE’s patents or other intellectual property rights.\nIf SunGard decides not to proceed with the Proposed Transaction, SunGard will promptly advise HTE of that decision. In that case, or in the\nevent that HTE, in its sole discretion, so requests, SunGard and SunGard’s Representatives shall promptly destroy (providing written confirmation of\nsuch destruction) or return all written graphic or other tangible forms of the Confidential Information and all copies, reproductions, summaries,\nanalyses or extracts thereof. Any oral Confidential Information will continue to be subject to the terms of this Agreement. The foregoing shall not\napply to any archival copies of Board of Director materials which SunGard’s Legal Department is entitled to retain as provided above.\nSunGard acknowledges and agrees that neither HTE nor any of HTE’s Representatives makes any express or implied representation or\nwarranty as to the accuracy or completeness of any Confidential Information, and SunGard agrees that no such person or entity shall have any\nliability to SunGard as a result of the use of Confidential Information by SunGard or any of SunGard’s Representatives, it being understood that only\nthose specific representations and warranties which may be made in a definitive agreement with respect to the Proposed Transaction when, as and if\nsuch an agreement is executed shall have any legal effect. It is similarly understood that this Agreement does not contain all matters upon which\nagreement must be reached in order for the Proposed Transaction to be consummated and, therefore, HTE is not in any way bound hereunder with\nrespect to the Proposed Transaction.\nSunGard agrees that, without HTE’s prior written consent, SunGard will not, for a period of eighteen (18) months from the date hereof, solicit\nfor employment any person who is now employed by HTE or any of its subsidiaries and who is identified by SunGard as a result of SunGard’s\nevaluation of the Proposed Transaction. The term “solicit” shall not to include general solicitations or advertisements of employment not specifically\ndirected to such employees of HTE or any of its subsidiaries.\nSunGard understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement and that HTE may be\nentitled to equitable relief (including, but not limited to, an injunction or specific performance) to enforce the terms of this Agreement in the event of\nany breach by SunGard or SunGard’s Representatives of the provisions of this Agreement. In the event of litigation relating to this Agreement, if a\ncourt of competent jurisdiction determines in a final order that this Agreement has been breached by SunGard or SunGard’s Representatives, then\nSunGard will reimburse HTE for its costs and expenses (including, without limitation, legal fees and expenses) incurred in connection with such\nlitigation. SunGard hereby: (a) submits to the\n3\njurisdiction of any state or federal court sitting in Orlando, Florida with respect to all actions and proceedings arising out of or relating to this\nAgreement (although HTE reserves the right to bring such action or proceeding in any other jurisdiction to which SunGard is subject); (b) agrees that\nall claims with respect to any such action or proceeding may be heard and determined in such court; (c) waives the defense of an inconvenient\nforum; (d) consents to service of process upon SunGard by mailing (by certified mail, return receipt requested, to the attention of the General\nCounsel) or delivering (to the attention of the General Counsel) such service to SunGard at its principal business address as of the date hereof (or\nsuch other principal business address of which SunGard may notify HTE in the future); and (e) agrees that a final judgment in any such action or\nproceeding may be enforced in other jurisdictions by suit on the judgment.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to conflicts of law\nprinciples. This Agreement contains the entire agreement relating to the subject matter hereof and supersedes the April 29, 1999 confidentiality\nagreement between the parties and all other prior or contemporaneous oral or written agreements. No failure or delay by HTE in exercising any right,\npower or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise\nthereof or the exercise of any right, power or privilege hereunder. No amendment or modification of this Agreement or waiver of the terms or\nconditions hereof shall be binding upon SunGard or HTE except by mutual written agreement of each of HTE and SunGard. Any assignment of this\nletter agreement by SunGard without HTE’s prior written consent shall be null and void. This Agreement shall be binding upon SunGard and its\nheirs, legal representatives, successors, and permitted assigns, and shall inure to the benefit of HTE and its successors and assigns.\nPlease confirm SunGard’s agreement with the foregoing by signing and returning the duplicate copy of this letter enclosed herewith to me at\nthe address indicated in the letterhead hereof.\nVery truly yours,\nH.T.E ., Inc.\nBy:\n/s/ L.A. GORNTO, JR.\nL. A. Gornto, Jr., Exec. Vice President\nACCEPTED AND AGREED AS OF THE DATE FIRST\nABOVE WRITTEN:\nSunGard Data Systems Inc.\nBy:\n/s/ RICHARD C. TARBOX\nRichard C. Tarbox\nSenior Vice President-Corporate Development\n4	EX-99.(D)(5) 19 dex99d5.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(5)\nHTE, Inc.\n149 South Ridgewood Avenue, Suite 550\nDaytona Beach, FL 32114\nSeptember 5, 2002\nSunGard Data Systems Inc.\n1285 Drummers Lane\nWayne, PA 19087-1586\nCONFIDENTIALITY/NONDISCLOSURE AGREEMENT\nLadies and Gentlemen:\nIn connection with our discussions concerning a possible negotiated business arrangement (the “Proposed Transaction”) between HTE, Inc.\n(“HTE”) and SunGard Data Systems Inc. (“SunGard”), or an affiliate thereof, certain non-public confidential and proprietary information may be\nfurnished to SunGard or its directors, officers, employees, affiliates, representatives (including, without limitation, SunGard’s financial advisors,\nattorneys and accountants), agents and controlling persons (collectively, “SunGard’s Representatives”) by HTE or its directors, officers, employees\naffiliates, representatives (including, without limitation, HTE’s financial advisors, attorneys and accountants) or agents (collectively “HTE’s\nRepresentatives”), upon SunGard’s execution and delivery to us of this Agreement. Such information (“Confidential Information”) includes any oral\nor written non-public information furnished by HTE or HTE’s Representatives (or that may otherwise be obtained by SunGard from one or more\nconversations with HTE or HTE’s Representatives or by an inspection of HTE’s facilities), whether before, on or after the date hereof, regardless of\nthe manner in which it is furnished, to SunGard or SunGard’s Representatives, together with all analyses, compilation, forecasts, studies or other\ndocuments prepared by SunGard or SunGard’s Representatives, to the extent they contain or reflect any such information of a business or technical\nnature, including, without limitation, inventions, trade secrets, ideas, processes, formulas, source codes, works of authorship, know-how,\nimprovements, discoveries, developments, designs and techniques, and software, as well as information regarding plans for research, development,\nnew products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, and suppliers and\ncustomers, as well as the nature and proposed terms and conditions of the Proposed Transaction itself.\nIn order to induce HTE to enter into negotiations regarding the Proposed Transaction, and in consideration of same, SunGard agrees that any\nConfidential Information received shall be held in strict confidence by SunGard and SunGard’s Representatives; shall be used by SunGard and\nSunGard’s Representatives only in connection with evaluating the Proposed Transaction; shall not be disclosed, directly or indirectly, by SunGard or\nSunGard’s Representatives to anyone except SunGard’s Representatives who use such information for the purpose of evaluating the Proposed\nTransaction; and shall not be disclosed, directly or indirectly, to third parties without the prior written consent of HTE. Among other things, SunGard\nshall not, directly or indirectly, disclose or otherwise use any Confidential Information in deciding to (or advising others to) buy, sell or\n1\notherwise deal in securities of HTE. Without limiting the generality of the foregoing, SunGard shall exercise no less care to safeguard the\nConfidential Information than SunGard exercises in safeguarding SunGard’s own non-public, confidential and proprietary information. In addition,\nSunGard shall not, without the prior written consent of HTE, disclose to any third party the fact that Confidential Information has been made\navailable or that discussions or negotiations are taking place concerning the Proposed Transaction. SunGard shall cause SunGard’s Representatives\nto observe the terms of this Agreement, and SunGard shall be responsible for any breach of this Agreement by any of SunGard’s Representatives.\nSunGard shall promptly notify HTE of any breach of this Agreement by SunGard or SunGard’s Representatives, and shall cooperate fully in\npursuing any lawful remedies therefor.\nThe foregoing restrictions on SunGard’s disclosure and use of Confidential Information shall not apply to the extent that such information: (a)\nis or becomes generally available to the public other than as a result of a disclosure by SunGard or SunGard’s Representatives; (b) becomes available\nto SunGard on a nonconfidential basis from a person other than HTE or HTE’s Representatives who is not bound by a confidentiality agreement with\nHTE or any of HTE’s Representatives, or is not otherwise under an obligation to HTE or any of HTE’s Representatives not to transmit the\ninformation to SunGard; or (c) has been or is independently developed by SunGard; provided, however, that SunGard shall have the burden of proof\nrespecting (b) and (c) of the aforementioned events on which SunGard relies as relieving SunGard of any restrictions hereunder, and provided\nfurther, that in the case of (a), (b) and/or (c) above, the removal of restrictions shall be effective only as of the date of occurrence of the applicable\nevent.\nIn the event that SunGard or any of SunGard’s Representatives are or is requested pursuant to, or required by, applicable law or regulation or\nby legal process to disclose any Confidential Information, SunGard agrees that it will provide HTE with prompt written notice of such request or\nrequirement in order to enable HTE to seek an appropriate protective order or other remedy, to consult with SunGard with respect to HTE’s taking\nsteps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in part, with the terms of this Agreement. If\nno such protective order or other remedy is obtained or HTE waives compliance with the terms of this Agreement, SunGard or SunGard’s\nRepresentatives will furnish only that portion of the Confidential Information which SunGard is reasonably advised by its counsel is legally required\nto be furnished and SunGard will use its reasonable efforts to ensure that all Confidential Information and other information that is so disclosed will\nbe accorded confidential treatment. Notwithstanding the foregoing to the contrary, SunGard’s Legal Department may retain, for archival purposes\nonly, one confidential copy of any Confidential Information presented to SunGard’s Board of Directors regarding the Proposed Transaction.\nSunGard will inform HTE which of the Confidential Information SunGard has retained for this purpose.\nSunGard also agrees that for a period of two years from the date of this Agreement SunGard will not, without the prior written consent of\nHTE: (a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, greater than five percent (5%) of any\nsecurities (whether equity, debt, convertible or any other type of securities), or direct or indirect rights to acquire greater than five percent (5%) of\nany securities, of HTE,; (b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in\nthe rules of the Securities and Exchange Commission), or seek to advise or influence any person or entity with\n2\nrespect to the voting of any voting securities of HTE or any subsidiary thereof; (c) make any public announcement with respect to, or submit a\nproposal for, or offer of (with or without conditions) any extraordinary transaction involving HTE or any subsidiary thereof or any of its or their\nsecurities or assets; or (d) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended, in connection with any of the foregoing.\nThe furnishing of Confidential Information shall not constitute or be construed as a grant of any express or implied license or other right, or a\ncovenant not to sue or forbearance from any other right of action (except as to permitted activities hereunder), by HTE to SunGard or SunGard’s\nRepresentatives under any of HTE’s patents or other intellectual property rights.\nIf SunGard decides not to proceed with the Proposed Transaction, SunGard will promptly advise HTE of that decision. In that case, or in the\nevent that HTE, in its sole discretion, so requests, SunGard and SunGard’s Representatives shall promptly destroy (providing written confirmation of\nsuch destruction) or return all written graphic or other tangible forms of the Confidential Information and all copies, reproductions, summaries,\nanalyses or extracts thereof. Any oral Confidential Information will continue to be subject to the terms of this Agreement. The foregoing shall not\napply to any archival copies of Board of Director materials which SunGard’s Legal Department is entitled to retain as provided above.\nSunGard acknowledges and agrees that neither HTE nor any of HTE’s Representatives makes any express or implied representation or\nwarranty as to the accuracy or completeness of any Confidential Information, and SunGard agrees that no such person or entity shall have any\nliability to SunGard as a result of the use of Confidential Information by SunGard or any of SunGard’s Representatives, it being understood that only\nthose specific representations and warranties which may be made in a definitive agreement with respect to the Proposed Transaction when, as and if\nsuch an agreement is executed shall have any legal effect. It is similarly understood that this Agreement does not contain all matters upon which\nagreement must be reached in order for the Proposed Transaction to be consummated and, therefore, HTE is not in any way bound hereunder with\nrespect to the Proposed Transaction.\nSunGard agrees that, without HTE’s prior written consent, SunGard will not, for a period of eighteen (18) months from the date hereof, solicit\nfor employment any person who is now employed by HTE or any of its subsidiaries and who is identified by SunGard as a result of SunGard’s\nevaluation of the Proposed Transaction. The term “solicit” shall not to include general solicitations or advertisements of employment not specifically\ndirected to such employees of HTE or any of its subsidiaries.\nSunGard understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement and that HTE may be\nentitled to equitable relief (including, but not limited to, an injunction or specific performance) to enforce the terms of this Agreement in the event of\nany breach by SunGard or SunGard’s Representatives of the provisions of this Agreement. In the event of litigation relating to this Agreement, if a\ncourt of competent jurisdiction determines in a final order that this Agreement has been breached by SunGard or SunGard’s Representatives, then\nSunGard will reimburse HTE for its costs and expenses (including, without limitation, legal fees and expenses) incurred in connection with such\nlitigation. SunGard hereby: (a) submits to the\njurisdiction of any state or federal court sitting in Orlando, Florida with respect to all actions and proceedings arising out of or relating to this\nAgreement (although HTE reserves the right to bring such action or proceeding in any other jurisdiction to which SunGard is subject); (b) agrees that\nall claims with respect to any such action or proceeding may be heard and determined in such court; (c) waives the defense of an inconvenient\nforum; (d) consents to service of process upon SunGard by mailing (by certified mail, return receipt requested, to the attention of the General\nCounsel) or delivering (to the attention of the General Counsel) such service to SunGard at its principal business address as of the date hereof (or\nsuch other principal business address of which SunGard may notify HTE in the future); and (e) agrees that a final judgment in any such action or\nproceeding may be enforced in other jurisdictions by suit on the judgment.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to conflicts of law\nprinciples. This Agreement contains the entire agreement relating to the subject matter hereof and supersedes the April 29, 1999 confidentiality\nagreement between the parties and all other prior or contemporaneous oral or written agreements. No failure or delay by HTE in exercising any right,\npower or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise\nthereof or the exercise of any right, power or privilege hereunder. No amendment or modification of this Agreement or waiver of the terms or\nconditions hereof shall be binding upon SunGard or HTE except by mutual written agreement of each of HTE and SunGard. Any assignment of this\nletter agreement by SunGard without HTE’s prior written consent shall be null and void. This Agreement shall be binding upon SunGard and its\nheirs, legal representatives, successors, and permitted assigns, and shall inure to the benefit of HTE and its successors and assigns.\nPlease confirm SunGard’s agreement with the foregoing by signing and returning the duplicate copy of this letter enclosed herewith to me at\nthe address indicated in the letterhead hereof.\nVery truly yours,\nH.T.E., Inc.\nBy: /s/ L.A. GORNTO, JR.\nL. A. Gornto, Jr., Exec. Vice President\nACCEPTED AND AGREED AS OF THE DATE FIRST\nABOVE WRITTEN:\nSunGard Data Systems Inc.\nBy: /s/  RICHARD C. TARBOX\nRichard C. Tarbox\nSenior Vice President-Corporate Development	EX-99.(D)(5) 19 dex99d5.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(5)\nHTE, Inc.\n149 South Ridgewood Avenue, Suite 550\nDaytona Beach, FL 32114\nSeptember 5, 2002\nSunGard Data Systems Inc.\n1285 Drummers Lane\nWayne, PA 19087-1586\nCONFIDENTIALITY/NONDISCLOSURE AGREEMENT\nLadies and Gentlemen:\nIn connection with our discussions concerning a possible negotiated business arrangement (the "Proposed Transaction") between HTE, Inc.\n("HTE") and SunGard Data Systems Inc. ("SunGard"), or an affiliate thereof, certain non-public confidential and proprietary information may be\nfurnished to SunGard or its directors, officers, employees, affiliates, representatives (including, without limitation, SunGard's financial advisors,\nattorneys and accountants), agents and controlling persons (collectively, "SunGard's Representatives") by HTE or its directors, officers, employees\naffiliates, representatives (including, without limitation, HTE's financial advisors, attorneys and accountants) or agents (collectively "HTE's\nRepresentatives"), upon SunGard's execution and delivery to us of this Agreement. Such information ("Confidential Information") includes any oral\nor written non-public information furnished by HTE or HTE's Representatives (or that may otherwise be obtained by SunGard from one or more\nconversations with HTE or HTE's Representatives or by an inspection of HTE's facilities), whether before, on or after the date hereof, regardless of\nthe manner in which it is furnished, to SunGard or SunGard's Representatives, together with all analyses, compilation, forecasts, studies or other\ndocuments prepared by SunGard or SunGard's Representatives, to the extent they contain or reflect any such information of a business or technical\nnature, including, without limitation, inventions, trade secrets, ideas, processes, formulas, source codes, works of authorship, know-how,\nimprovements, discoveries, developments, designs and techniques, and software, as well as information regarding plans for research, development,\nnew products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, and suppliers and\ncustomers, as well as the nature and proposed terms and conditions of the Proposed Transaction itself.\nIn order to induce HTE to enter into negotiations regarding the Proposed Transaction, and in consideration of same, SunGard agrees that any\nConfidential Information received shall be held in strict confidence by SunGard and SunGard's Representatives; shall be used by SunGard and\nSunGard's Representatives only in connection with evaluating the Proposed Transaction; shall not be disclosed, directly or indirectly, by SunGard or\nSunGard's Representatives to anyone except SunGard's Representatives who use such information for the purpose of evaluating the Proposed\nTransaction; and shall not be disclosed, directly or indirectly, to third parties without the prior written consent of HTE. Among other things, SunGard\nshall not, directly or indirectly, disclose or otherwise use any Confidential Information in deciding to (or advising others to) buy, sell or\n1\notherwise deal in securities of HTE. Without limiting the generality of the foregoing, SunGard shall exercise no less care to safeguard the\nConfidential Information than SunGard exercises in safeguarding SunGard's own non-public, confidential and proprietary information. In addition,\nSunGard shall not, without the prior written consent of HTE, disclose to any third party the fact that Confidential Information has been made\navailable or that discussions or negotiations are taking place concerning the Proposed Transaction. SunGard shall cause SunGard's Representatives\nto observe the terms of this Agreement, and SunGard shall be responsible for any breach of this Agreement by any of SunGard's Representatives.\nSunGard shall promptly notify HTE of any breach of this Agreement by SunGard or SunGard's Representatives, and shall cooperate fully\nin\npursuing any lawful remedies therefor.\nThe foregoing restrictions on SunGard's disclosure and use of Confidential Information shall not apply to the extent that such information: (a)\nis or becomes generally available to the public other than as a result of a disclosure by SunGard or SunGard's Representatives; (b) becomes available\nto SunGard on a nonconfidential basis from a person other than HTE or HTE's Representatives who is not bound by a confidentiality agreement with\nHTE or any of HTE's Representatives, or is not otherwise under an obligation to HTE or any of HTE's Representatives not to transmit the\ninformation to SunGard; or (c) has been or is independently developed by SunGard; provided, however, that SunGard shall have the burden of proof\nrespecting (b) and (c) of the aforementioned events on which SunGard relies as relieving SunGard of any restrictions hereunder, and provided\nfurther, that in the case of (a), (b) and/or (c) above, the removal of restrictions shall be effective only as of the date of occurrence of the applicable\nevent.\nIn the event that SunGard or any of SunGard's Representatives are or is requested pursuant to, or required by, applicable law or regulation or\nby legal process to disclose any Confidential Information, SunGard agrees that it will provide HTE with prompt written notice of such request or\nrequirement in order to enable HTE to seek an appropriate protective order or other remedy, to consult with SunGard with respect to HTE's taking\nsteps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in part, with the terms of this Agreement. If\nno\nsuch protective order or other remedy is obtained or HTE waives compliance with the terms of this Agreement, SunGard or SunGard's\nRepresentatives will furnish only that portion of the Confidential Information which SunGard is reasonably advised by its counsel is legally required\nto be furnished and SunGard will use its reasonable efforts to ensure that all Confidentia Information and other information that is so disclosed will\nbe accorded confidential treatment. Notwithstanding the foregoing to the contrary, SunGard's Legal Department may retain, for archival purposes\nonly, one confidential copy of any Confidential Information presented to SunGard's Board of Directors regarding the Proposed Transaction.\nSunGard will inform HTE which of the Confidential Information SunGard has retained for this purpose.\nSunGard also agrees that for a period of two years from the date of this Agreement SunGard will not, without the prior written consent of\nHTE: (a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, greater than five percent (5%) of any\nsecurities (whether equity, debt, convertible or any other type of securities), or direct or indirect rights to acquire greater than five percent (5%) of\nany securities, of HTE; (b) make, or in any way participate, directly or indirectly, in any "'solicitation" of "proxies" to vote (as such terms are used\nin\nthe rules of the Securities and Exchange Commission), or seek to advise or influence any person or entity with\n2\nrespect to the voting of any voting securities of HTE or any subsidiary thereof; (c) make any public announcement with respect to, or submit\na\nproposal for, or offer of (with or without conditions) any extraordinary transaction involving HTE or any subsidiary thereof or any of its or their\nsecurities or assets; or (d) form, join or in any way participate in a "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended, in connection with any of the foregoing.\nThe furnishing of Confidential Information shall not constitute or be construed as a grant of any express or implied license or other right, or a\ncovenant not to sue or forbearance from any other right of action (except as to permitted activities hereunder), by HTE to SunGard or SunGard's\nRepresentatives under any of HTE's patents or other intellectual property rights.\nIf SunGard decides not to proceed with the Proposed Transaction, SunGard will promptly advise HTE of that decision. In that case, or in the\nevent that HTE, in its sole discretion, so requests, SunGard and SunGard's Representatives shall promptly destroy (providing written confirmation of\nsuch\ndestruction) or return all written graphic or other tangible forms of the Confidential Information and all copies, reproductions, summaries,\nanalyses or extracts thereof. Any oral Confidential Information will continue to be subject to the terms of this Agreement. The foregoing shall not\napply to any archival copies of Board of Director materials which SunGard's Legal Department is entitled to retain as provided above.\nSunGard acknowledges and agrees that neither HTE nor any of HTE's Representatives makes any express or implied representation or\nwarranty as to the accuracy or completeness of any Confidential Information, and SunGard agrees that no such person or entity shall have any\nliability to SunGard as a result of the use of Confidential Information by SunGard or any of SunGard's Representatives, it being understood that only\nthose specific representations and warranties which may be made in a definitive agreement with respect to the Proposed Transaction when, as and if\nsuch an agreement is executed shall have any legal effect. It is similarly understood that this Agreement does not contain all matters upon which\nagreement must be reached in order for the Proposed Transaction to be consummated and, therefore, HTE is not in any way bound hereunder with\nrespect to the Proposed Transaction.\nSunGard agrees that, without HTE's prior written consent, SunGard will not, for a period of eighteen (18) months from the date hereof, solicit\nfor employment any person who is now employed by HTE or any of its subsidiaries and who is identified by SunGard as a result of SunGard's\nevaluation of the Proposed Transaction. The term "solicit" shall not to include general solicitations or advertisements of employment not specifically\ndirected to such employees of HTE or any of its subsidiaries.\nSunGard understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement and that HTE may be\nentitled to equitable relief (including, but not limited to, an injunction or specific performance) to enforce the terms of this Agreement in the event of\nany breach by SunGard or SunGard's Representatives of the provisions of this Agreement. In the event of litigation relating to this Agreement, if\na\ncourt of competent jurisdiction determines in a final order that this Agreement has been breached by SunGard or SunGard's Representatives, then\nSunGard will reimburse HTE for its costs and expenses (including, without limitation, legal fees and expenses) incurred in connection with such\nlitigation. SunGard hereby: (a) submits to the\n3\njurisdiction of any state or federal court sitting in Orlando, Florida with respect to all actions and proceedings arising out of or relating to this\nAgreement (although HTE reserves the right to bring such action or proceeding in any other jurisdiction to which SunGard is subject); (b) agrees that\nall claims with respect to any such action or proceeding may be heard and determined in such court; (c) waives the defense of an inconvenient\nforum; (d) consents to service of process upon SunGard by mailing (by certified mail, return receipt requested, to the attention of the General\nCounsel) or delivering (to the attention of the General Counsel) such service to SunGard at its principal business address as of the date hereof (or\nsuch other principal business address of which SunGard may notify HTE in the future); and (e) agrees that a final judgment in any such action\nor\nproceeding may be enforced in other jurisdictions by suit on the judgment.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to conflicts of law\nprinciples. This Agreement contains the entire agreement relating to the subject matter hereof and supersedes the April 29, 1999 confidentiality\nagreement between the parties and all other prior or contemporaneous oral or written agreements. No failure or delay by HTE in exercising any right,\npower or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise\nthereof or the exercise of any right, power or privilege hereunder. No amendment or modification of this Agreement or waiver of the terms or\nconditions hereof shall be binding upon SunGard or HTE except by mutual written agreement of each of HTE and SunGard. Any assignment of this\nletter agreement by SunGard without HTE's prior written consent shall be null and void. This Agreement shall be binding upon SunGard and its\nheirs, legal representatives, successors, and permitted assigns, and shall inure to the benefit of HTE and its successors and assigns.\nPlease confirm SunGard's agreement with the foregoing by signing and returning the duplicate copy of this letter enclosed herewith to me at\nthe address indicated in the letterhead hereof.\nVery truly yours,\nH.T.E., Inc.\nBy:\n/s/ L.A. GORNTO, JR.\nL. A. Gornto, Jr., Exec. Vice President\nACCEPTED AND AGREED AS OF THE DATE FIRST\nABOVE WRITTEN:\nSunGard Data Systems Inc.\nBy:\n/s/ RICHARD C. TARBOX\nRichard C. Tarbox\nSenior Vice President-Corporate Development\n4	EX-99.(D)(5) 19 dex99d5.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(5)\nHTE, Inc.\n149 South Ridgewood Avenue, Suite 550\nDaytona Beach, FL 32114\nSeptember 5, 2002\nSunGard Data Systems Inc.\n1285 Drummers Lane\nWayne, PA 19087-1586\nCONFIDENTIALITY/NONDISCLOSURE AGREEMENT\nLadies and Gentlemen:\nIn connection with our discussions concerning a possible negotiated business arrangement (the “Proposed Transaction”) between HTE, Inc.\n(“HTE”) and SunGard Data Systems Inc. (“SunGard”), or an affiliate thereof, certain non-public confidential and proprietary information may be\nfurnished to SunGard or its directors, officers, employees, affiliates, representatives (including, without limitation, SunGard’s financial advisors,\nattorneys and accountants), agents and controlling persons (collectively, “SunGard’s Representatives”) by HTE or its directors, officers, employees\naffiliates, representatives (including, without limitation, HTE’s financial advisors, attorneys and accountants) or agents (collectively “HTE’s\nRepresentatives”), upon SunGard’s execution and delivery to us of this Agreement. Such information (“Confidential Information”) includes any oral\nor written non-public information furnished by HTE or HTE’s Representatives (or that may otherwise be obtained by SunGard from one or more\nconversations with HTE or HTE’s Representatives or by an inspection of HTE’s facilities), whether before, on or after the date hereof, regardless of\nthe manner in which it is furnished, to SunGard or SunGard’s Representatives, together with all analyses, compilation, forecasts, studies or other\ndocuments prepared by SunGard or SunGard’s Representatives, to the extent they contain or reflect any such information of a business or technical\nnature, including, without limitation, inventions, trade secrets, ideas, processes, formulas, source codes, works of authorship, know-how,\nimprovements, discoveries, developments, designs and techniques, and software, as well as information regarding plans for research, development,\nnew products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, and suppliers and\ncustomers, as well as the nature and proposed terms and conditions of the Proposed Transaction itself.\nIn order to induce HTE to enter into negotiations regarding the Proposed Transaction, and in consideration of same, SunGard agrees that any\nConfidential Information received shall be held in strict confidence by SunGard and SunGard’s Representatives; shall be used by SunGard and\nSunGard’s Representatives only in connection with evaluating the Proposed Transaction; shall not be disclosed, directly or indirectly, by SunGard or\nSunGard’s Representatives to anyone except SunGard’s Representatives who use such information for the purpose of evaluating the Proposed\nTransaction; and shall not be disclosed, directly or indirectly, to third parties without the prior written consent of HTE. Among other things, SunGard\nshall not, directly or indirectly, disclose or otherwise use any Confidential Information in deciding to (or advising others to) buy, sell or\n1\notherwise deal in securities of HTE. Without limiting the generality of the foregoing, SunGard shall exercise no less care to safeguard the\nConfidential Information than SunGard exercises in safeguarding SunGard’s own non-public, confidential and proprietary information. In addition,\nSunGard shall not, without the prior written consent of HTE, disclose to any third party the fact that Confidential Information has been made\navailable or that discussions or negotiations are taking place concerning the Proposed Transaction. SunGard shall cause SunGard’s Representatives\nto observe the terms of this Agreement, and SunGard shall be responsible for any breach of this Agreement by any of SunGard’s Representatives.\nSunGard shall promptly notify HTE of any breach of this Agreement by SunGard or SunGard’s Representatives, and shall cooperate fully in\npursuing any lawful remedies therefor.\nThe foregoing restrictions on SunGard’s disclosure and use of Confidential Information shall not apply to the extent that such information: (a)\nis or becomes generally available to the public other than as a result of a disclosure by SunGard or SunGard’s Representatives; (b) becomes available\nto SunGard on a nonconfidential basis from a person other than HTE or HTE’s Representatives who is not bound by a confidentiality agreement with\nHTE or any of HTE’s Representatives, or is not otherwise under an obligation to HTE or any of HTE’s Representatives not to transmit the\ninformation to SunGard; or (c) has been or is independently developed by SunGard; provided, however, that SunGard shall have the burden of proof\nrespecting (b) and (c) of the aforementioned events on which SunGard relies as relieving SunGard of any restrictions hereunder, and provided\nfurther, that in the case of (a), (b) and/or (c) above, the removal of restrictions shall be effective only as of the date of occurrence of the applicable\nevent.\nIn the event that SunGard or any of SunGard’s Representatives are or is requested pursuant to, or required by, applicable law or regulation or\nby legal process to disclose any Confidential Information, SunGard agrees that it will provide HTE with prompt written notice of such request or\nrequirement in order to enable HTE to seek an appropriate protective order or other remedy, to consult with SunGard with respect to HTE’s taking\nsteps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in part, with the terms of this Agreement. If\nno such protective order or other remedy is obtained or HTE waives compliance with the terms of this Agreement, SunGard or SunGard’s\nRepresentatives will furnish only that portion of the Confidential Information which SunGard is reasonably advised by its counsel is legally required\nto be furnished and SunGard will use its reasonable efforts to ensure that all Confidential Information and other information that is so disclosed will\nbe accorded confidential treatment. Notwithstanding the foregoing to the contrary, SunGard’s Legal Department may retain, for archival purposes\nonly, one confidential copy of any Confidential Information presented to SunGard’s Board of Directors regarding the Proposed Transaction.\nSunGard will inform HTE which of the Confidential Information SunGard has retained for this purpose.\nSunGard also agrees that for a period of two years from the date of this Agreement SunGard will not, without the prior written consent of\nHTE: (a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, greater than five percent (5%) of any\nsecurities (whether equity, debt, convertible or any other type of securities), or direct or indirect rights to acquire greater than five percent (5%) of\nany securities, of HTE; (b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in\nthe rules of the Securities and Exchange Commission), or seek to advise or influence any person or entity with\n2\nrespect to the voting of any voting securities of HTE or any subsidiary thereof; (c) make any public announcement with respect to, or submit a\nproposal for, or offer of (with or without conditions) any extraordinary transaction involving HTE or any subsidiary thereof or any of its or their\nsecurities or assets; or (d) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as\namended, in connection with any of the foregoing.\nThe furnishing of Confidential Information shall not constitute or be construed as a grant of any express or implied license or other right, or a\ncovenant not to sue or forbearance from any other right of action (except as to permitted activities hereunder), by HTE to SunGard or SunGard’s\nRepresentatives under any of HTE’s patents or other intellectual property rights.\nIf SunGard decides not to proceed with the Proposed Transaction, SunGard will promptly advise HTE of that decision. In that case, or in the\nevent that HTE, in its sole discretion, so requests, SunGard and SunGard’s Representatives shall promptly destroy (providing written confirmation of\nsuch destruction) or return all written graphic or other tangible forms of the Confidential Information and all copies, reproductions, summaries,\nanalyses or extracts thereof. Any oral Confidential Information will continue to be subject to the terms of this Agreement. The foregoing shall not\napply to any archival copies of Board of Director materials which SunGard’s Legal Department is entitled to retain as provided above.\nSunGard acknowledges and agrees that neither HTE nor any of HTE’s Representatives makes any express or implied representation or\nwarranty as to the accuracy or completeness of any Confidential Information, and SunGard agrees that no such person or entity shall have any\nliability to SunGard as a result of the use of Confidential Information by SunGard or any of SunGard’s Representatives, it being understood that only\nthose specific representations and warranties which may be made in a definitive agreement with respect to the Proposed Transaction when, as and if\nsuch an agreement is executed shall have any legal effect. It is similarly understood that this Agreement does not contain all matters upon which\nagreement must be reached in order for the Proposed Transaction to be consummated and, therefore, HTE is not in any way bound hereunder with\nrespect to the Proposed Transaction.\nSunGard agrees that, without HTE’s prior written consent, SunGard will not, for a period of eighteen (18) months from the date hereof, solicit\nfor employment any person who is now employed by HTE or any of its subsidiaries and who is identified by SunGard as a result of SunGard’s\nevaluation of the Proposed Transaction. The term “solicit” shall not to include general solicitations or advertisements of employment not specifically\ndirected to such employees of HTE or any of its subsidiaries.\nSunGard understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement and that HTE may be\nentitled to equitable relief (including, but not limited to, an injunction or specific performance) to enforce the terms of this Agreement in the event of\nany breach by SunGard or SunGard’s Representatives of the provisions of this Agreement. In the event of litigation relating to this Agreement, if a\ncourt of competent jurisdiction determines in a final order that this Agreement has been breached by SunGard or SunGard’s Representatives, then\nSunGard will reimburse HTE for its costs and expenses (including, without limitation, legal fees and expenses) incurred in connection with such\nlitigation. SunGard hereby: (a) submits to the\n3\njurisdiction of any state or federal court sitting in Orlando, Florida with respect to all actions and proceedings arising out of or relating to this\nAgreement (although HTE reserves the right to bring such action or proceeding in any other jurisdiction to which SunGard is subject); (b) agrees that\nall claims with respect to any such action or proceeding may be heard and determined in such court; (c) waives the defense of an inconvenient\nforum; (d) consents to service of process upon SunGard by mailing (by certified mail, return receipt requested, to the attention of the General\nCounsel) or delivering (to the attention of the General Counsel) such service to SunGard at its principal business address as of the date hereof (or\nsuch other principal business address of which SunGard may notify HTE in the future); and (e) agrees that a final judgment in any such action or\nproceeding may be enforced in other jurisdictions by suit on the judgment.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to conflicts of law\nprinciples. This Agreement contains the entire agreement relating to the subject matter hereof and supersedes the April 29, 1999 confidentiality\nagreement between the parties and all other prior or contemporaneous oral or written agreements. No failure or delay by HTE in exercising any right,\npower or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise\nthereof or the exercise of any right, power or privilege hereunder. No amendment or modification of this Agreement or waiver of the terms or\nconditions hereof shall be binding upon SunGard or HTE except by mutual written agreement of each of HTE and SunGard. Any assignment of this\nletter agreement by SunGard without HTE’s prior written consent shall be null and void. This Agreement shall be binding upon SunGard and its\nheirs, legal representatives, successors, and permitted assigns, and shall inure to the benefit of HTE and its successors and assigns.\nPlease confirm SunGard’s agreement with the foregoing by signing and returning the duplicate copy of this letter enclosed herewith to me at\nthe address indicated in the letterhead hereof.\nVery truly yours,\nH.T.E ., Inc.\nBy:\n/s/ L.A. GORNTO, JR.\nL. A. Gornto, Jr., Exec. Vice President\nACCEPTED AND AGREED AS OF THE DATE FIRST\nABOVE WRITTEN:\nSunGard Data Systems Inc.\nBy:\n/s/ RICHARD C. TARBOX\nRichard C. Tarbox\nSenior Vice President-Corporate Development\n4
+b10c9cd20a455613ff67c3f91d68224a.pdf	effective_date jurisdiction party	EX-10 .12 4 v83383orexv10w12.txt EXHIBIT 10.12 COVENANT NOT TO COMPETE AND NON -DISCLOSURE AGREEMENT PARTIES: Mindy Grossman\n(EMPLOYEE) and NIKE, Inc. , and its divisions, subsidiaries and affiliates. (NIKE): RECITALS: A. This Covenant Not to Compete and Non-Disclosure Agreement\nis executed upon initial employment or upon the EMPLOYEE's advancement with NIKE and is a condition of such employment or advancement. B . Over the\ncourse of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to develop confidential information peculiar to\nNIKE's business and not generally known to the public as defined below ("Protected Information"). It is anticipated that EMPLOYEE will continue to be exposed to\nProtected Information of greater sensitivity as EMPLOYEE advances in the company. C. The nature of NIKE's business is highly competitive and disclosure of\nany Protected Information would result in severe damage to NIKE and be difficult to measure. D . NIKE makes use of its Protective Information throughout the\nworld. Protective Information of NIKE can be used to NIKE's detriment anywhere in the world. AGREEMENT: In consideration of the foregoing, and the terms and\nconditions set forth below, the parties agree as follows: 1. COVENANT NOT TO COMPETE . (a) COMPETITION RESTRICTION. During EMPLOYEE's\nemployment by NIKE, under the terms of any employment contract or otherwise, and for one year thereafter, (the "Restriction Period"), EMPLOYEE will not\ndirectly or indirectly, own, manage, control, or participate in the ownership, management or control of, or be employed by, consult for, or be connected in any\nmanner with, any business engaged anywhere in the world in the athletic footwear, athletic apparel or sports equipment and accessories business, or any other\nbusiness which directly competes with NIKE or any of its parent, subsidiaries or affiliated corporations ("Competitor"). BY WAY OF ILLUSTRATION ONLY ,\nexamples of NIKE competitors include, but are not limited to: Adidas, FILA , Reebok, Puma, Champion, Oakley, DKNY , Converse, Asics, Saucony, New Balance,\nB.U .M, FUBU , The Gap, Tommy Hilfiger, Umbro, Northface, Venator (Footlockers), Sports Authority, Columbia Sportswear, Wilson, Mizuno, Callaway Golf and\nTitleist. This provision is subject to NIKE's option to waive all or any portion of the Restriction Period as more specifically provided below. (b) EXTENSION OF\nTIME. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall automatically toll from the date of the first breach, and all\nsubsequent breaches, until the resolution of the breach through private settlement, judicial or other action, including all appeals. The Restriction Period shall\ncontinue upon the effective date of any such settlement judicial or other resolution. NIKE shall not be obligated to pay EMPLOYEE the additional compensation\ndescribed in paragraph 1(d) below during any period of time in which this Agreement is tolled due to EMPLOYEE's breach. In the event EMPLOYEE receives\nsuch additional compensation pursuant to paragraph 1(d) below after any such breach, EMPLOYEE must immediately reimburse NIKE in the amount of all such\ncompensation upon the receipt of a written request by NIKE. (c) WAIVER OF NON-COMPETE . NIKE has the option, in its sole discretion, to elect to waive all or a\nportion of the Restriction Period or to limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a\nportion of the Restriction Period is waived, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to compete has\nbeen waived. (d) ADDITIONAL CONSIDERATION. As additional consideration for the covenant not to compete described above, if after termination of\nEMPLOYEE's employment for any reason, NIKE elects to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a monthly payment equal to one\nhundred percent (100%) of EMPLOYEE's last monthly base salary while the Restriction Period is in effect. The first payment to EMPLOYEE of additional\nconsideration shall follow on the next applicable pay period after the election to enforce the non-competition agreement, payable in accordance with NIKE's\npayroll practices. 2. SUBSEQUENT EMPLOYER. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE's new\nemployer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period, wherever located and\nregardless of whether such employer is a competitor of NIKE. 3. NON -DISCLOSURE AGREEMENT. (a) PROTECTABLE INFORMATION DEFINED. "Protected\nInformation" shall mean all proprietary information, in whatever form and format, of NIKE and all information provided to NIKE by third parties which NIKE is\nobligated to keep confidential. EMPLOYEE agrees that any and all information to which EMPLOYEE has access concerning NIKE projects and internal NIKE\ninformation is Protected Information, whether in verbal form, machine-readable form, written or other tangible form, and whether designated as confidential or\nunmarked. Without limiting the foregoing, Protected Information includes information relating to NIKE's research and development activities, its intellectual\nproperty and the filing or pendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor\nlists, contract factory lists, pricing information, manufacturing plans, business and marketing plans, sales information, methods of operation, manufacturing\nprocesses and methods, products, and personnel information. (b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any\ninformation that is or becomes part of the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, employees shall be permitted to\nretain as part of their personal portfolio copies of the employees' original artwork and designs, provided the artwork or designs have become part of the public\ndomain. In any dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be by clear and\nconvincing evidence. (c) Employee's Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter, EMPLOYEE will hold in\nconfidence and protect all Protected Information and will not, at any time, directly or indirectly, use any Protected Information for any purpose outside the scope of\nEMPLOYEE's employment with NIKE or disclose any Protected Information to any third person or organization without the prior written consent of NIKE.\nSpecifically, but not by way of limitation, EMPLOYEE will not ever copy, transmit, reproduce, summarize, quote, publish or make any commercial or other use\nwhatsoever of any Protected Information without the prior written consent of NIKE. EMPLOYEE will also take reasonable security precautions and such other\nactions as may be necessary to insure that there is no use or disclosure, intentional or inadvertent, of Protected Information in violation of this Agreement. 4 .\nRETURN OF PROTECTED INFORMATION. At the request of NIKE at anytime, and in any event, upon termination of employment, EMPLOYEE shall\nimmediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other similar repositories of or containing\nProtected Information, and all copies thereof, then in EMPLOYEE's possession or under EMPLOYEE's control. 5 . UNAUTHORIZED USE. During the period of\nemployment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if EMPLOYEE becomes aware of the unauthorized possession, use or\nknowledge of any Protected Information by any person employed or not employed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will\ncooperate with NIKE in the investigation of any such incident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect\nthe Protected Information. NIKE shall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by\noperation of any payment under Paragraph 1(d) of this Agreement. 6. NON -RECRUITMENT. During the term of this Agreement and for a period of one (1) year\nthereafter, EMPLOYEE will not directly or indirectly , solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or\nbusiness organization, any NIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not such employment is\npursuant to a written agreement or is at will. 7. ACCOUNTING OF PROFITS . EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement,\nNIKE shall be entitled to an accounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly\nhas realized and/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid by NIKE pursuant\nto Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to which NIKE may be\nentitled at law or in equity. 8. GENERAL PROVISIONS . (a) SURVIVAL. This Agreement shall continue in effect after the termination of EMPLOYEE's\nemployment, regardless of the reason for termination. (b) WAIVER. No waiver, amendment, modification or cancellation of any term or condition of this\nAgreement will be effective unless executed in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts\nspecifically referred to therein.. (c) SEVERABILITY. Each provision herein will be treated as a separate and independent clause and unenforceability of any one\nclause will in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable or invalid by a\ncourt of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that jurisdiction. (d) APPLICABLE\nLAW/JURISDICTION. This Agreement, and EMPLOYEE's employment hereunder, shall be construed according to the laws of the State of Oregon. EMPLOYEE\nfurther hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and venue for any action or proceeding arising out of or relating to this\nAgreement shall lie in the state and federal courts located in Oregon. EMPLOYEE NIKE , Inc. /s/ Mindy Grossman By /s/ Lindsay D. Stewart --------------------\n-- --- -- --- -- --- -- --- -- -- - Name: Lindsay D. Stewart DATE 9-7-00 Title: Vice President ----------------	EX-10.12 4 v83383orexv10w12.txt EXHIBIT 10.12 COVE NANT NOT TO COM P ETE AN D NON-DISC LOSU RE AGREE M E NT PARTIES: Mindy Grossman\n(EMPLOYEE) and NIKE, Inc., and its divisions, subsidiaries and affiliates. (NIKE): RECITALS: A. This Covenant Not to Compete and Non-Disclosure Agreement\nis executed upon initial employmentor upon the E M P LOYE E's advancement with N IKE and is a condition ofsuch employment or advancement. B. Over the\ncourse of E M P LOYE E's employmentwilh N IKE, EM PLOYE E will be or has been exposed to and/or is in a position to develop confidential information peculiar to\nNIKE '5 business and notgenerally known to the public as defined below ("Protected Information"). It is anticipated that E M P LOYE E will continue to be exposed to\nProtected Information ofgreater sensitivity as E M P LOYE E advances in Ihe company. C. The nature of N IKE '5 business is highly competitive and disclosure of\nany Protected Information would result in severe damage to NIKE and be difficult to measure. D. NIKE makes use ofits Protective Information Ihroughoutlhe\nworld. Protective Information of N IKE can be used to N IKE's detriment anywhere in Ihe world. AGRE EM E NT: In consideration of the foregoing, and the terms and\nconditions set forth below, Ihe parties agree as follows: 1. COVENANT NOT TO COMPETE. (a) COMPETITION RESTRICTION. During EMPLOYEE's\nemployment by N IKE, under the terms of any employment contract or oIhenNise, and for one year Ihereafter, (the "Restriction Period"), E M PLOYE E will not\ndirectly or indirectly, own, manage, control, or participate in the ownership, managementor control of, or be employed by, consult for, or be connected in any\nmanner with, any business engaged anywhere in the world in the athletic footwear, thletic apparel or sports equipment and accessories business, or any other\nbusiness which directly competes wilh N IKE or any of its parent, subsidiaries or affiliated corporations ("Competitor"). BY WAY OF ILLUSTRATION ONLY,\nexamples of NIKE competitors include, butare notlimited to: Adidas, FILA, Reebok, Puma, Champion, Oakley, DKNY, Converse, Asics, Saucony, New Balance,\nB.U.M, FUBU, The Gap, Tommy Hilfiger, Umbro, Northface, Venator (Footlockers), SporIs Athority, Columbia Sportswear, Wilson, Mizuno, Callaway Golfand\nTineist. This provision is subject to NIKE's option to waive all or any portion of the Restriction Period as more specifically provided below. (b) EXTE NSION OF\nTIM E. In Ihe event E M P LOYE E breaches Ihis covenant not to compete, Ihe Restriction Period shall automatically toll from Ihe date ofthe first breach, and all\nsubsequent breaches, until the resolution ofthe breach through private settlement, judicial or other action, including all appeals. The Restriction Period shall\ncontinue upon Ihe effective date of any such sethementjudicial or other resolution. N IKE shall not be obligated to pay EM PLOYE E the additional compensation\ndescribed in paragraph 1(d) below during any period of time in which Ihis Agreement is tolled due to E M P LOYE E's breach. In Ihe event E M P LOYE E receives\nsuch additional compensation pursuant to paragraph 1(d) below after any such breach, E M PLOYE E must immediately reimburse NIKE in the amountof all such\ncompensation upon the receipt of a written requestby NIKE. (c) WAIVER OF NON-COMPETE. NIKE has the option, in its sole discretion, to electto waive all or a\nportion of Ihe Restriction Period or to limit Ihe definition ofCompetitor, by giving E M P LOYEE seven (7) days prior notice of such election. In the event all or a\nportion of Ihe Restriction Period is waived, N IKE shall not be obligated to pay E M P LOYE E for any period of time as to which the covenant notto compete has\nbeen waived. (d) ADDITIONAL CONSIDE RATION. As additional consideration for Ihe covenant not to compete described above, if after termination of\nE M PLOYE E's employment for any reason, N IKE elects to enforce Ihe non-competition agreement, N IKE shall pay E M P LOYE E a monIhly paymentequal to one\nhundred percent (100%) of E M P LOYE E's last monthly base salary while the Restriction Period is in effect. The first payment to E M P LOYE E of additional\nconsideration shall follow on the next applicable pay period after the election to enforce the non-competition agreement, payable in accordance with NIKE 's\npayroll practices. 2. SU BS EOU E NT E M P LOY E R. E M P LOY E E agrees to notify NIKE at the time of separation of employment of Ihe name of E M P LOY E E's new\nemployer, if known. EM PLOYE E futher agrees to disclose to NIKE the name of any subsequentemployer during the Restriction Period, wherever located and\nregardless ofwhether such employer is a competitor of N IKE. 3. NON-DISC LOSURE AGRE E M ENT. (a) P ROTECTABLE IN FORMATION DEFINE D. "Protected\nInformation" shall mean all proprietary information, in whateverform and format, of NIKE and all information provided to NIKE by third parties which NIKE is\nobligated to keep confidential. E M P LOYE E agrees Ihat any and all information to which E M P LOYE E has access concerning N IKE projecIs and internal NIKE\ninformation is Protected Information, wheIher in verbal form, machine-readable form, written or other tangible form, and wheIher designated as confidential or\nunmarked. WiIhout limiting Ihe foregoing, Protected Information includes information relating to NIKE's research and developmentactivities, its intellectual\nproperty and the filing or pendency of patent applications, confidential techniques, methods, styles, designs, design concepIs and ideas, customer and vendor\nlists, contract factory lisIs, pricing information, manufacturing plans, business and marketing plans, sales information, meIhods ofoperation, manufacturing\nprocesses and methods, products, and personnel information. (b) Excluded Information. Notwilhstanding paragraph 3(a), Protected Information excludes any\ninformation that is or becomes part of the public domain through no actor failure to act on the part of EM P LOYE E. Specifically, employees shall be permitted to\nretain as part of Iheir personal portfolio copies ofthe employees' original artwork and designs, provided the artwork or designs have become part of Ihe public\ndomain. In any dispute between Ihe parties wilh respect to this exclusion, the burden of proofwill be on E M P LOYE E and such proofwill be by clear and\nconvincing evidence. (c) Employee's Obligations. During the period of employment by N IKE and for a period oftwo (2) years thereafter, EM P LOYE E will hold in\nconfidence and protect all Protected Information and will not, at any time, direcij or indirectly, use any Protected Information for any purpose ouIside the scope of\nE M PLOYE E's employment with N IKE or disclose any Protected Information to any third person or organization wilhout the prior written consentof NIKE.\nSpecifically, but not by way of limitation, E M P LOYE E will not ever copy, transmit, reproduce, summarize, quote, publish or make any commercial or olher use\nwhatsoever of any Protected Information withoutthe prior written consentof N IKE. E M P LOYEE will also take reasonable security precautions and such olher\nactions as may be necessary to insure that Ihere is no use or disclosure, intentional or inadvertent, of Protected Information in violation of Ihis Agreement. 4.\nRETURN OF PROTECTED INFORMATION. Atthe request of NIKE at anytime, and in any event, upon termination ofemployment, EMPLOYEE shall\nimmediately return to N IKE all confidential documents, including tapes, notebooks, drawings, computer disks and olher similar repositories ofor containing\nP rotected Information, and all copies Ihereof, then in E M P LOY E E's possession or under E M P LOY E E's control. 5. U NAUTHO RIZE D U S E. During the period of\nemployment with NIKE and thereafter, E M P LOYE E will notify NIKE immediately if E M P LOYE E becomes aware of the unauthorized possession, use or\nknowledge of any Protected Information by any person employed or not employed by NIKE atthe time of such possession, use or knowledge. E M P LOYEE will\ncooperate with NIKE in the investigation of any such incident and will cooperate wilh N IKE in any litigation with Ihird parties deemed necessary by N IKE to protect\nIhe Protected Information. NIKE shall provide reasonable reimbursementto EMPLOYEE for each hour so engaged and thatamountshall not be diminished by\noperation of any payment under Paragraph 1(d) of this Agreement. 6. NON-RECRUITM E NT. During the term ofthis Agreement and for a period ofone (1) year\nIhereafter, E M P LOY E E will not directly or indirectly , solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or\nbusiness organization, any N IKE employee, whether or notsuch employee is a full-time employee or temporary employee and wheIher or notsuch employment is\npursuantto a written agreement or is atwill. 7. ACCOUNTING OF P ROFITS. E M P LOYEE agrees that, if E M P LOYE E should violate any term of this Agreement,\nNIKE shall be entitled to an accounting and repaymentof all profiIs, compensation, commissions, remuneration or benefiIs which E M P LOYEE direcij or indirectly\nhas realized and/or may realize as a resultofor in connection with any such violation (including the return of any additional consideration paid by NIKE pursuant\nto Paragraph 1(d) above). Such remedy shall be in addition to and notin limitation ofany injunctive reliefor other rights or remedies to which NIKE may be\nentitled at law or in equity. 8. G E N E RAL P ROVIS IO NS. (a) SU RVIVAL. This Agreement shall continue in effect after Ihe termination of E M P LOY E E's\nemployment, regardless of Ihe reason for termination. (b) WAIVE R. No waiver, amendment, modification or cancellation of any term or condition of Ihis\nAgreementwill be effective unless executed in writing by boIh parties. No written waiver will excuse Ihe performance of any actolher than Ihe actor acIs\nspecifically referred to therein.. (c) SEVERABILITY. Each provision herein will be treated as a separate and independentclause and unenforceability of any one\nclause will in no way impactthe enforceability of any other clause. Should any of the provisions in Ihis Agreement be found to be unreasonable or invalid by a\ncourt of competentjurisdiction, such provision will be enforceable to the maximum extentenforceable by Ihe law ofthatjurisdiction. (d) AP P LICABLE\nLAW/J URISDICTION. This Agreement, and E M P LOYE E's employment hereunder, shall be construed according to the laws ofthe State of Oregon. E M P LOYEE\nfurther hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and venue for any action or proceeding arising outofor relating to this\nAgreementshall lie in the state and federal courts located in Oregon. EMPLOYEE NIKE, Inc. /s/ Mindy Grossman By/s/ Lindsay D. Stewart --------------------\n------------------------- Name: Lindsay D. Stewart DATE 9-7-00 Title: Vice President----------------	EX-10.12 4 v83383orexv10w12.b EXHIBIT 10.12 COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT PARTIES: Mindy Grossman\n(EMPLOYEE) and NIKE, Inc., and its divisions, subsidiaries and affiliates. (NIKE): RECITALS: A. This Covenant Not to Compete and Non-Disclosure Agreement\nis executed upon initial employment or upon the EMPLOYEE'S advancement with NIKE and is a condition of such employment or advancement. B. ver the\ncourse of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to develop confidential information peculiar\nto\nNIKE's business and not generally known to the public as defined below "Protected Information"). It is anticipated that EMPLOYEE will continue to be exposed to\nProtected Information of greater sensitivity as EMPLOYEE advances in the company. C. The nature of NIKE's business is highly competitive and disclosure\nof\nany Protected Information would result in severe damage to NIKE and be difficult to measure. D. NIKE makes use of its Protective Information throughout the\nworld. rotective Information of NIKE can be used to NIKE's detriment anywhere in the world. AGREEMENT: In consideration of the foregoing, and the terms and\nconditions set forth below, the parties agree as follows: 1. COVENANT NOT TO COMPETE. (a) COMPETITION RESTRICTION. During EMPLOYEE's\nemployment by NIKE, under the terms of any employment contract or otherwise, and for one year thereafter, (the "Restriction Period"), EMPLOYEE will not\ndirectly or indirectly, own, manage, control, or participate in the ownership, management or control of, or be employed by, consult for, or be connected in any\nmanner with, any business engaged anywhere in the world in the athletic footwear, athletic apparel or sports equipment and accessories business, or any other\nbusiness which directly competes with NIKE or any of its parent, subsidiaries or affiliated corporations ("Competitor"). BY WAY OF ILLUSTRATION ONLY,\nexamples of NIKE competitors include, but are not limited to: Adidas FILA, Reebok, Puma, Champion, Oakley, DKNY, Converse, Asics, Saucony, New Balance,\nB.U.M, FUBU, The Gap, Tommy Hilfiger, Umbro, Northface, Venator (Footlockers), Sports Authority, Columbia s portswear, Wilson, Mizuno, Callaway Golf and\nTitleist. This provision is subject to NIKE's option to waive all or any portion of the estriction Period as more specifically provided below. (b) EXTENSION OF\nTIME. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall automatically toll from the date of the first breach, and\nall\nsubsequent breaches, unti the resolution of the breach through private settlement, judicia or other action, including all appeals. The Restriction Period shall\ncontinue upon the effective date of any such settlement judicial or other resolution. NIKE shall not be obligated to pay EMPLOYEE the additional compensation\ndescribed in paragraph 1(d) below during any period of time in which this Agreement is tolled due to EMPLOYEE's breach. In the event EMPLOYEE receives\nsuch additional compensation pursuant to paragraph 1(d) below after any such breach, EMPLOYEE must immediately reimburse NIKE in the amount of all such\ncompensation upon the receipt of a written request by NIKE (c) WAIVER OF NON-COMPETE. NIKE has the option, in its sole discretion, to elect to waive all or\na\nportion of the Restriction eriod or to limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or\na\nportion of the Restriction Period is waived, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to compete has\nbeen waived. (d) ADDITIONAL CONSIDERATION. As additional consideration for the covenant not to compete described above, if after termination of\nEMPLOYEE's employment for any reason, NIKE elects to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a monthly payment equal to one\nhundred percent (100%) of EMPLOYEE'S last monthly base salary while the Restriction Period is in effect. The first payment to EMPLOYEE of additional\nconsideration shall follow on the next applicable pay period after the election to enforce the non-competition agreement, payable in accordance with NIKE'S\npayroll practices. 2. SUBSEQUENT EMPLOYER. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE's new\nemployer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction eriod, wherever located and\nregardless of whether such employer is a competitor of NIKE. 3. NON-DISCLOSURE AGREEMENT. (a) PROTECTABLE INFORMATION DEFINED. Protected\nInformation" shall mean all proprietary information, in whatever form and format, of NIKE and all information provided to NIKE by third parties which NIKE is\nobligated to keep confidential EMPLOYEE agrees that any and all information to which EMPLOYEE has access concerning NIKE projects and interna NIKE\ninformation is Protected Information, whether in verbal form, machine-readable form, written or other tangible form, and whether designated as confidential\nor\nunmarked. Without limiting the foregoing, rotected Information includes information relating to NIKE's research and development activities, its intellectual\nproperty and the filing or pendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas customer and vendor\nlists, contract factory lists, pricing information, manufacturing plans, business and marketing plans, sales information, methods of operation, manufacturing\nprocesses and methods, products, and personnel information. (b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any\ninformation that is or becomes part of the public domain through no act or failure to act on the part of EMPLOYEE. pecifically, employees shall be permitted to\nretain as part of their personal portfolio copies of the employees' original artwork and designs, provided the artwork or designs have become part of the public\ndomain. In any dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be by clear and\nconvincing evidence. (c) Employee's Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter, EMPLOYEE will hold in\nconfidence and protect all Protected Information and wil not, at any time, directly or indirectly, use any rotected Information for any purpose outside the scope of\nEMPLOYEE's employment with NIKE or disclose any Protected Information to any third person or organization without the prior written consent of NIKE.\npecifically, but not by way of limitation, EMPLOYEE will not ever copy, transmit, reproduce, summarize, quote, publish or make any commercial or other\nuse\nwhatsoever of any Protected Information without the prior written consent of NIKE. EMPLOYEE wil also take reasonable security precautions and such other\nactions as may be necessary to insure that there is no use or disclosure, intentional or inadvertent, of Protected Information in violation of this Agreement 4.\nRETURN OF PROTECTED INFORMATION. At the request of NIKE at anytime, and in any event upon termination of employment, EMPLOYEE shall\nimmediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other similar repositories of or containing\nProtected Information, and all copies thereof, then in EMPLOYEE'S possession or under EMPLOYEE's control. 5. UNAUTHORIZED USE. During the period of\nemployment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if EMPLOYEE becomes aware of the unauthorized possession, use or\nknowledge of any Protected Information by any person employed or not employed by NIKE at the time of such possession, use or knowledge. EMPLOYEE wil\ncooperate with NIKE in the investigation of any such incident and wil cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect\nthe\nProtected Information. NIKE shall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by\noperation of any payment under Paragraph 1(d) of this Agreement. 6. NON-RECRUITMENT. During the term of this Agreement and for a period of one (1) year\nthereafter, EMPLOYEE will not directly or indirectly solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or\nbusiness organization, any NIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not such employment\nis\npursuant to a written agreement or is at will. 7. ACCOUNTING OF PROFITS. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement,\nNIKE shal be entitled to an accounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly\nhas realized and/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid by NIKE pursuant\nto Paragraph 1(d) above). uch remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to which NIKE may be\nentitled at law or in equity. 8. GENERAL PROVISIONS. (a) SURVIVAL. This Agreement shall continue in effect after the termination of EMPLOYEE'S\nemployment, regardless of the reason for termination. (b) WAIVER. No waiver, amendment, modification or cancellation of any term or condition of this\nAgreement will be effective unless executed in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts\nspecifically referred to therein. (c) SEVERABILITY. Each provision herein will be treated as a separate and independent clause and unenforceability of\nany\none\nclause will in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable or invalid by a\ncourt of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that jurisdiction. (d) PPLICABLE\nLAW/J URISDICTION. This Agreement, and EMPLOYEE's employment hereunder, shall be construed according to the laws of the State of Oregon. EMPLOYEE\nfurther hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and venue for any action or proceeding arising out of or relating to this\nAgreement shall lie in the state and federal courts located in Oregon EMPLOYEE NIKE, Inc. /s/ Mindy Grossman By /s/ Lindsay\nD.\nStewart\nName: Lindsay D. Stewart DATE 9-7-00 Title: Vice President	EX-10 .12 4 v83383orexv10w12.txt EXHIBIT 10.12 COVENANT NOT TO COMPETE AND NON -DISCLOSURE AGREEMENT PARTIES: Mindy Grossman\n(EMPLOYEE) and NIKE, Inc. , and its divisions, subsidiaries and affiliates. (NIKE): RECITALS: A. This Covenant Not to Compete and Non-Disclosure Agreement\nis executed upon initial employment or upon the EMPLOYEE's advancement with NIKE and is a condition of such employment or advancement. B . Over the\ncourse of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to develop confidential information peculiar to\nNIKE's business and not generally known to the public as defined below ("Protected Information"). It is anticipated that EMPLOYEE will continue to be exposed to\nProtected Information of greater sensitivity as EMPLOYEE advances in the company. C. The nature of NIKE's business is highly competitive and disclosure of\nany Protected Information would result in severe damage to NIKE and be difficult to measure. D . NIKE makes use of its Protective Information throughout the\nworld. Protective Information of NIKE can be used to NIKE's detriment anywhere in the world. AGREEMENT: In consideration of the foregoing, and the terms and\nconditions set forth below, the parties agree as follows: 1. COVENANT NOT TO COMPETE . (a) COMPETITION RESTRICTION. During EMPLOYEE's\nemployment by NIKE, under the terms of any employment contract or otherwise, and for one year thereafter, (the "Restriction Period"), EMPLOYEE will not\ndirectly or indirectly, own, manage, control, or participate in the ownership, management or control of, or be employed by, consult for, or be connected in any\nmanner with, any business engaged anywhere in the world in the athletic footwear, athletic apparel or sports equipment and accessories business, or any other\nbusiness which directly competes with NIKE or any of its parent, subsidiaries or affiliated corporations ("Competitor"). BY WAY OF ILLUSTRATION ONLY ,\nexamples of NIKE competitors include, but are not limited to: Adidas, FILA , Reebok, Puma, Champion, Oakley, DKNY , Converse, Asics, Saucony, New Balance,\nB.U .M, FUBU , The Gap, Tommy Hilfiger, Umbro, Northface, Venator (Footlockers), Sports Authority, Columbia Sportswear, Wilson, Mizuno, Callaway Golf and\nTitleist. This provision is subject to NIKE's option to waive all or any portion of the Restriction Period as more specifically provided below. (b) EXTENSION OF\nTIME. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall automatically toll from the date of the first breach, and all\nsubsequent breaches, until the resolution of the breach through private settlement, judicial or other action, including all appeals. The Restriction Period shall\ncontinue upon the effective date of any such settlement judicial or other resolution. NIKE shall not be obligated to pay EMPLOYEE the additional compensation\ndescribed in paragraph 1(d) below during any period of time in which this Agreement is tolled due to EMPLOYEE's breach. In the event EMPLOYEE receives\nsuch additional compensation pursuant to paragraph 1(d) below after any such breach, EMPLOYEE must immediately reimburse NIKE in the amount of all such\ncompensation upon the receipt of a written request by NIKE. (c) WAIVER OF NON-COMPETE . NIKE has the option, in its sole discretion, to elect to waive all or a\nportion of the Restriction Period or to limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a\nportion of the Restriction Period is waived, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to compete has\nbeen waived. (d) ADDITIONAL CONSIDERATION. As additional consideration for the covenant not to compete described above, if after termination of\nEMPLOYEE's employment for any reason, NIKE elects to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a monthly payment equal to one\nhundred percent (100%) of EMPLOYEE's last monthly base salary while the Restriction Period is in effect. The first payment to EMPLOYEE of additional\nconsideration shall follow on the next applicable pay period after the election to enforce the non-competition agreement, payable in accordance with NIKE's\npayroll practices. 2. SUBSEQUENT EMPLOYER. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE's new\nemployer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period, wherever located and\nregardless of whether such employer is a competitor of NIKE. 3. NON -DISCLOSURE AGREEMENT. (a) PROTECTABLE INFORMATION DEFINED. "Protected\nInformation" shall mean all proprietary information, in whatever form and format, of NIKE and all information provided to NIKE by third parties which NIKE is\nobligated to keep confidential. EMPLOYEE agrees that any and all information to which EMPLOYEE has access concerning NIKE projects and internal NIKE\ninformation is Protected Information, whether in verbal form, machine-readable form, written or other tangible form, and whether designated as confidential or\nunmarked. Without limiting the foregoing, Protected Information includes information relating to NIKE's research and development activities, its intellectual\nproperty and the filing or pendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor\nlists, contract factory lists, pricing information, manufacturing plans, business and marketing plans, sales information, methods of operation, manufacturing\nprocesses and methods, products, and personnel information. (b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any\ninformation that is or becomes part of the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, employees shall be permitted to\nretain as part of their personal portfolio copies of the employees' original artwork and designs, provided the artwork or designs have become part of the public\ndomain. In any dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be by clear and\nconvincing evidence. (c) Employee's Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter, EMPLOYEE will hold in\nconfidence and protect all Protected Information and will not, at any time, directly or indirectly, use any Protected Information for any purpose outside the scope of\nEMPLOYEE's employment with NIKE or disclose any Protected Information to any third person or organization without the prior written consent of NIKE.\nSpecifically, but not by way of limitation, EMPLOYEE will not ever copy, transmit, reproduce, summarize, quote, publish or make any commercial or other use\nwhatsoever of any Protected Information without the prior written consent of NIKE. EMPLOYEE will also take reasonable security precautions and such other\nactions as may be necessary to insure that there is no use or disclosure, intentional or inadvertent, of Protected Information in violation of this Agreement. 4 .\nRETURN OF PROTECTED INFORMATION. At the request of NIKE at anytime, and in any event, upon termination of employment, EMPLOYEE shall\nimmediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other similar repositories of or containing\nProtected Information, and all copies thereof, then in EMPLOYEE's possession or under EMPLOYEE's control. 5 . UNAUTHORIZED USE. During the period of\nemployment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if EMPLOYEE becomes aware of the unauthorized possession, use or\nknowledge of any Protected Information by any person employed or not employed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will\ncooperate with NIKE in the investigation of any such incident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect\nthe Protected Information. NIKE shall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by\noperation of any payment under Paragraph 1(d) of this Agreement. 6. NON -RECRUITMENT. During the term of this Agreement and for a period of one (1) year\nthereafter, EMPLOYEE will not directly or indirectly , solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or\nbusiness organization, any NIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not such employment is\npursuant to a written agreement or is at will. 7. ACCOUNTING OF PROFITS . EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement,\nNIKE shall be entitled to an accounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly\nhas realized and/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid by NIKE pursuant\nto Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to which NIKE may be\nentitled at law or in equity. 8. GENERAL PROVISIONS . (a) SURVIVAL. This Agreement shall continue in effect after the termination of EMPLOYEE's\nemployment, regardless of the reason for termination. (b) WAIVER. No waiver, amendment, modification or cancellation of any term or condition of this\nAgreement will be effective unless executed in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts\nspecifically referred to therein.. (c) SEVERABILITY. Each provision herein will be treated as a separate and independent clause and unenforceability of any one\nclause will in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable or invalid by a\ncourt of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that jurisdiction. (d) APPLICABLE\nLAW/JURISDICTION. This Agreement, and EMPLOYEE's employment hereunder, shall be construed according to the laws of the State of Oregon. EMPLOYEE\nfurther hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and venue for any action or proceeding arising out of or relating to this\nAgreement shall lie in the state and federal courts located in Oregon. EMPLOYEE NIKE , Inc. /s/ Mindy Grossman By /s/ Lindsay D. Stewart --------------------\n-- --- -- --- -- --- -- --- -- -- - Name: Lindsay D. Stewart DATE 9-7-00 Title: Vice President ----------------
+b110d1e6157e7704f7da51ffbcb77307.pdf	effective_date jurisdiction party term	SCHEDULE 4\nTO MANUFACTURING SERVICES AGREEMENT\nBETWEEN JABIL AND COMPANY\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), effective as of the date set forth last below, is made by and between the\nundersigned counter party (the “Counter Party”) and iROBOT CORPORATION (“iROBOT”). In consideration of the mutual agreements and other\nprovisions of this Agreement, the parties hereto agree as follows:\n1 Scope of Proprietary Information.\n1.1 “Proprietary Information” means, subject to the exceptions set forth in Section 1.2 hereof, any information or data, regardless of whether it is in\ntangible form, that is disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) and that (a) the Disclosing Party has\nmarked as confidential or proprietary, or (b) the Disclosing Party identifies as confidential or proprietary at the time of disclosure with written\nconfirmation within thirty (30) days of disclosure to the Receiving Party, provided, however, that:\n1.1.1 Reports and/or information related to or regarding the Disclosing Party’s business plans, business methodologies, strategies, specifications,\ndevelopment plans, customers, and/or billing records will be deemed Proprietary Information of the Disclosing Party even if not so marked or\nidentified.\n1.1.2 Prototypes, mockups, models, designs, project deliverables, and/or depictions thereof, observed within or upon the Disclosing Party’s business\npremises will be deemed Proprietary Information of the Disclosing Party even if not so marked or identified.\n1.2 “Proprietary Information” shall not include any information which: (a) the Receiving Party can show by written record was in its possession prior\nto disclosure by the Disclosing Party hereunder, provided that the Receiving Party must promptly notify the Disclosing Party of any prior knowledge\nin the manner provided in Section 5 below; (b) appears in a patent or publication, or which otherwise is or becomes generally known in the trade other\nthan through the Receiving Party’s failure to observe any or all terms and conditions hereof; provided that the foregoing shall not be interpreted to\ncreate any express or implied license, or the right to obtain a license, to any patents which may be issued to the Disclosing Party; or (c) subsequent to\ndisclosure to the Receiving Party by the Disclosing Party, is obtained by the Receiving Party from a third person who is lawfully in possession of such\ninformation, and who is not in violation of any contractual, legal or fiduciary obligations to the Disclosing Party in making such disclosure to the\nReceiving Party and does not require the Receiving Party to refrain from disclosing such information to others.\n2 Use and Disclosure of Proprietary Information.\n2.1 The Receiving Party may only use the Proprietary Information for the purpose of evaluating or operating pursuant to a business relationship or\npotential business relationship between the Receiving Party and the Disclosing Party (the “Permitted Purpose”). The Receiving Party must keep secret\nand shall not disclose, publish, divulge, furnish or make accessible to anyone any of the Proprietary Information of the Disclosing Party, other than\nfurnishing such Proprietary Information to the Receiving Party’s employees, agents, representatives, consultants and contractors who are required to\nhave access to such Proprietary Information in connection with the Permitted Purpose during the time that the Receiving Party is permitted to retain\nsuch Proprietary Information hereunder; provided that such persons are bound by written agreements respecting the Proprietary Information in the\nmanner set forth in this Agreement.\n2.2 The Receiving Party shall not embody any of the Proprietary Information of the Disclosing Party in any of the Receiving Party’s products,\nprocesses or services, or duplicate, copy or exploit any of such Proprietary Information in the Receiving Party’s business, or otherwise use any of the\nProprietary Information for any purpose other than for the Permitted Purpose.\nPortions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s\napplication requesting confidential treatment under Rule 24b-2 of the Exchange Act — [*] denotes omissions.\n2.3 The Receiving Party shall use the equivalent of measures that the Receiving Party uses to protect the Receiving Party’s own proprietary\ninformation, but in no event less than reasonable care and adequate measures, to protect the security of the Proprietary Information of the Disclosing\nParty and to ensure that any Proprietary Information of the Disclosing Party is not disclosed or otherwise made available to other persons or used in\nviolation of this Agreement.\n2.4 In the event that the Receiving Party is required by law to make any disclosure of any of the Proprietary Information of the Disclosing Party, by\nsubpoena, judicial or administrative order or otherwise, the Receiving Party shall first give written notice of such requirement to the Disclosing Party,\nand shall permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Proprietary Information, and provide full\ncooperation and assistance to the Disclosing Party in seeking to obtain such protection.\n3 Certain Rights and Limitations.\n3.1 The Receiving Party will provide upon the Disclosing Party’s request a certification that access and use is being controlled in accordance with this\nAgreement.\n3.2 The provision of Proprietary Information hereunder shall not transfer any right, title or interest in such information to Receiving Party. Disclosing\nParty does not grant any express or implied right to Receiving Party to or under Disclosing Party’s patents, copyrights, trademarks, trade secret\ninformation or other proprietary rights.\n3.3 All tangible embodiments of the Proprietary Information of the Disclosing Party (e.g., drawings, memoranda and notes) and all copies thereof,\nwhether in hard-copy or machine-readable form and whether supplied by the Disclosing Party or made by or for the Receiving Party (collectively, the\n“Tangible Embodiments”), shall at all times be and remain the property of the Disclosing Party.\n3.4 The Receiving Party shall not reverse-engineer, decompile, or disassemble any software or firmware disclosed or provided to it under this\nAgreement and shall not remove, overprint or deface any notice of confidentiality, copyright, trademark, logo, legend or other notices of ownership or\nconfidentiality from any originals or copies of Proprietary Information it obtains from the Disclosing Party.\n4 Remedies. Receiving Party acknowledges that a breach by it of any of the terms of this Agreement would cause irreparable harm to the Disclosing\nParty for which Disclosing Party could not be adequately compensated by money damages. Accordingly, Receiving Party agrees that, in addition to\nall other remedies available to Disclosing Party in an action at law, in the event of any breach or threatened breach by the Receiving Party of the terms\nof this Agreement, the Disclosing Party shall, without the necessity of proving actual damages or posting any bond or other security, be entitled to\ntemporary and permanent injunctive relief, including, but not limited to, specific performance of the terms of this Agreement.\n5 Notice of Independent Knowledge or Breach. The Receiving Party agrees to notify the Disclosing Party promptly in writing if (a) upon disclosure\nof Proprietary Information by the Disclosing Party, the Receiving Party has prior knowledge of the same; or (b) subsequent to disclosure of any\nProprietary Information by the Disclosing Party, information is disclosed to the Receiving Party in a manner described in Section 1.2 or (c) the\nReceiving Party becomes aware of any breach of this Agreement with respect to the Proprietary Information of the Disclosing Party in the Receiving\nParty’s possession.\n6 Termination.\n6.1 Notice and Effect of Termination. This Agreement shall remain in effect until it is terminated by either party with thirty (30) days prior written\nnotice. The terms and conditions of this Agreement shall survive any such termination with respect to Proprietary Information that is disclosed prior\nto the effective date of such termination for a period of [*] from the date of termination.\n6.2 Return of Proprietary Information. Upon the earlier of (a) the termination of this Agreement, (b) Disclosing Party’s written request or (c) such\ntime as the Receiving Party no longer requires the Proprietary Information for the Permitted Purpose, Receiving Party agrees to promptly return to\nDisclosing Party or destroy all Proprietary Information and any Tangible Embodiments that are in the possession of Receiving Party and to certify the\nreturn or destruction of all such Proprietary Information and embodiments.\nPortions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s\napplication requesting confidential treatment under Rule 24b-2 of the Exchange Act — [*] denotes omissions.\n7 Warranty. Disclosing Party warrants that it has the right to make the disclosures under this Agreement. NO OTHER WARRANTY IS MADE BY\nEITHER PARTY UNDER THIS AGREEMENT. ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED “AS IS.”\n8 United States Government Regulations. The parties shall adhere to any applicable U.S. and foreign export control laws and regulations and shall\nnot export or reexport any technical data or products received or the direct product of such technical data except in compliance with the applicable\nexport control laws and regulations of the U.S . and any applicable foreign country.\n9 Miscellaneous. This Agreement does not create any joint venture, pooling arrangement, agency or partnership relationship between the parties\nhereto, nor does it create any obligation or commitment on the part of either party to submit a proposal from or perform any contract or services with\nthe other party. Nothing herein shall be construed as providing for the sharing of profits or losses arising out of the parties efforts. This Agreement\nshall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts governing such agreements, without regard\nto conflicts-of-law principles. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate\nfederal or state court located in the Commonwealth of Massachusetts, and the parties agree not to raise, and waive, any objections or defenses based\nupon venue or forum non conveniens. This Agreement contains the complete and exclusive agreement of the parties with respect to the subject matter\nhereof and supersedes all prior agreements and understandings whether written or oral, express or implied. If any provision of this Agreement is held\ninvalid, illegal or unenforceable by a court of competent jurisdiction, such shall not affect any other provision of this Agreement, which shall remain\nin full force and effect. No amendment or alteration of the terms of this Agreement shall be effective unless made in writing and executed by both\nparties hereto. A failure or delay in exercising any right in respect to this Agreement will not be presumed to operate as a waiver, and a single or\npartial exercise of any right will not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right. Any\nmodification or waiver of any provision of this Agreement shall not be effective unless made in writing. Any such waiver shall be effective only in the\nspecific instance and for the purpose given.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed below by their duly authorized signatories.\nJABIL, INC.\nIROBOT CORPORATION\nBy: /s/ Arthur W. Hook\n(Counter Party)\nBy: /s/ Oscar Zamorano\nName: Arthur W. Hook\nName: Oscar Zamorano\nTitle: Director of Sales\nTitle VP Operations & Supply Chain\nDate: June 23rd, 2009\nDate June 23rd, 2009\nAddress for notices to Counter Party:\nAddress for notices to iROBOT CORPORATION:\nJabil, Inc.\niRobot Corporation\nAttn: Legal Dept.\nAttn: Legal Department\n10560 Rev. Martin Luther King Jr. Street North\n8 Crosby Drive\nSt. Petersburg, FL 33716\nBedford. MA 01730\nPortions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s\napplication requesting confidential treatment under Rule 24b-2 of the Exchange Act — [*] denotes omissions.	SCHEDULE 4\nTO MANUFACTURING SERVICES AGREEMENT\nBETWEEN JABIL AND COMPANY\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), effective as of the date set forth last below, is made by and between the\nundersigned counter party (the “Counter Party”) and iROBOT CORPORATION (“iROBOT?”). In consideration of the mutual agreements and other\nprovisions of this Agreement, the parties hereto agree as follows:\n1 Scope of Proprietary Information.\n1.1 “Proprietary Information” means, subject to the exceptions set forth in Section 1.2 hereof, any information or data, regardless of whether it is in\ntangible form, that is disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) and that (a) the Disclosing Party has\nmarked as confidential or proprietary, or (b) the Disclosing Party identifies as confidential or proprietary at the time of disclosure with written\nconfirmation within thirty (30) days of disclosure to the Receiving Party, provided, however, that:\n1.1.1 Reports and/or information related to or regarding the Disclosing Party’s business plans, business methodologies, strategies, specifications,\ndevelopment plans, customers, and/or billing records will be deemed Proprietary Information of the Disclosing Party even if not so marked or\nidentified.\n1.1.2 Prototypes, mockups, models, designs, project deliverables, and/or depictions thereof, observed within or upon the Disclosing Party’s business\npremises will be deemed Proprietary Information of the Disclosing Party even if not so marked or identified.\n1.2 “Proprietary Information” shall not include any information which: (a) the Receiving Party can show by written record was in its possession prior\nto disclosure by the Disclosing Party hereunder, provided that the Receiving Party must promptly notify the Disclosing Party of any prior knowledge\nin the manner provided in Section 5 below; (b) appears in a patent or publication, or which otherwise is or becomes generally known in the trade other\nthan through the Receiving Party’s failure to observe any or all terms and conditions hereof; provided that the foregoing shall not be interpreted to\ncreate any express or implied license, or the right to obtain a license, to any patents which may be issued to the Disclosing Party; or (c) subsequent to\ndisclosure to the Receiving Party by the Disclosing Party, is obtained by the Receiving Party from a third person who is lawfully in possession of such\ninformation, and who is not in violation of any contractual, legal or fiduciary obligations to the Disclosing Party in making such disclosure to the\nReceiving Party and does not require the Receiving Party to refrain from disclosing such information to others.\n2 Use and Disclosure of Proprietary Information.\n2.1 The Receiving Party may only use the Proprietary Information for the purpose of evaluating or operating pursuant to a business relationship or\npotential business relationship between the Receiving Party and the Disclosing Party (the “Permitted Purpose”). The Receiving Party must keep secret\nand shall not disclose, publish, divulge, furnish or make accessible to anyone any of the Proprietary Information of the Disclosing Party, other than\nfurnishing such Proprietary Information to the Receiving Party’s employees, agents, representatives, consultants and contractors who are required to\nhave access to such Proprietary Information in connection with the Permitted Purpose during the time that the Receiving Party is permitted to retain\nsuch Proprietary Information hereunder; provided that such persons are bound by written agreements respecting the Proprietary Information in the\nmanner set forth in this Agreement.\n2.2 The Receiving Party shall not embody any of the Proprietary Information of the Disclosing Party in any of the Receiving Party’s products,\nprocesses or services, or duplicate, copy or exploit any of such Proprietary Information in the Receiving Party’s business, or otherwise use any of the\nProprietary Information for any purpose other than for the Permitted Purpose.\nPortions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s\napplication requesting confidential treatment under Rule 24b-2 of the Exchange Act — [*] denotes omissions.\n2.3 The Receiving Party shall use the equivalent of measures that the Receiving Party uses to protect the Receiving Party’s own proprietary\ninformation, but in no event less than reasonable care and adequate measures, to protect the security of the Proprietary Information of the Disclosing\nParty and to ensure that any Proprietary Information of the Disclosing Party is not disclosed or otherwise made available to other persons or used in\nviolation of this Agreement.\n2.4 In the event that the Receiving Party is required by law to make any disclosure of any of the Proprietary Information of the Disclosing Party, by\nsubpoena, judicial or administrative order or otherwise, the Receiving Party shall first give written notice of such requirement to the Disclosing Party,\nand shall permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Proprietary Information, and provide full\ncooperation and assistance to the Disclosing Party in seeking to obtain such protection.\n3 Certain Rights and Limitations.\n3.1 The Receiving Party will provide upon the Disclosing Party’s request a certification that access and use is being controlled in accordance with this\nAgreement.\n3.2 The provision of Proprietary Information hereunder shall not transfer any right, title or interest in such information to Receiving Party. Disclosing\nParty does not grant any express or implied right to Receiving Party to or under Disclosing Party’s patents, copyrights, trademarks, trade secret\ninformation or other proprietary rights.\n3.3 All tangible embodiments of the Proprietary Information of the Disclosing Party (e.g., drawings, memoranda and notes) and all copies thereof,\nwhether in hard-copy or machine-readable form and whether supplied by the Disclosing Party or made by or for the Receiving Party (collectively, the\n“Tangible Embodiments™), shall at all times be and remain the property of the Disclosing Party.\n3.4 The Receiving Party shall not reverse-engineer, decompile, or disassemble any software or firmware disclosed or provided to it under this\nAgreement and shall not remove, overprint or deface any notice of confidentiality, copyright, trademark, logo, legend or other notices of ownership or\nconfidentiality from any originals or copies of Proprietary Information it obtains from the Disclosing Party.\n4 Remedies. Receiving Party acknowledges that a breach by it of any of the terms of this Agreement would cause irreparable harm to the Disclosing\nParty for which Disclosing Party could not be adequately compensated by money damages. Accordingly, Receiving Party agrees that, in addition to\nall other remedies available to Disclosing Party in an action at law, in the event of any breach or threatened breach by the Receiving Party of the terms\nof this Agreement, the Disclosing Party shall, without the necessity of proving actual damages or posting any bond or other security, be entitled to\ntemporary and permanent injunctive relief, including, but not limited to, specific performance of the terms of this Agreement.\n5 Notice of Independent Knowledge or Breach. The Receiving Party agrees to notify the Disclosing Party promptly in writing if (a) upon disclosure\nof Proprietary Information by the Disclosing Party, the Receiving Party has prior knowledge of the same; or (b) subsequent to disclosure of any\nProprietary Information by the Disclosing Party, information is disclosed to the Receiving Party in a manner described in Section 1.2 or (c) the\nReceiving Party becomes aware of any breach of this Agreement with respect to the Proprietary Information of the Disclosing Party in the Receiving\nParty’s possession.\n6 Termination.\n6.1 Notice and Effect of Termination. This Agreement shall remain in effect until it is terminated by either party with thirty (30) days prior written\nnotice. The terms and conditions of this Agreement shall survive any such termination with respect to Proprietary Information that is disclosed prior\nto the effective date of such termination for a period of [*] from the date of termination.\n6.2 Return of Proprietary Information. Upon the earlier of (a) the termination of this Agreement, (b) Disclosing Party’s written request or (c) such\ntime as the Receiving Party no longer requires the Proprietary Information for the Permitted Purpose, Receiving Party agrees to promptly return to\nDisclosing Party or destroy all Proprietary Information and any Tangible Embodiments that are in the possession of Receiving Party and to certify the\nreturn or destruction of all such Proprietary Information and embodiments.\nPortions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s\napplication requesting confidential treatment under Rule 24b-2 of the Exchange Act — [*] denotes omissions.\n7 Warranty. Disclosing Party warrants that it has the right to make the disclosures under this Agreement. NO OTHER WARRANTY IS MADE BY\nEITHER PARTY UNDER THIS AGREEMENT. ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED “AS IS.”\n8 United States Government Regulations. The parties shall adhere to any applicable U.S. and foreign export control laws and regulations and shall\nnot export or reexport any technical data or products received or the direct product of such technical data except in compliance with the applicable\nexport control laws and regulations of the U.S. and any applicable foreign country.\n9 Miscellaneous. This Agreement does not create any joint venture, pooling arrangement, agency or partnership relationship between the parties\nhereto, nor does it create any obligation or commitment on the part of either party to submit a proposal from or perform any contract or services with\nthe other party. Nothing herein shall be construed as providing for the sharing of profits or losses arising out of the parties efforts. This Agreement\nshall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts governing such agreements, without regard\nto conflicts-of-law principles. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate\nfederal or state court located in the Commonwealth of Massachusetts, and the parties agree not to raise, and waive, any objections or defenses based\nupon venue or forum non conveniens. This Agreement contains the complete and exclusive agreement of the parties with respect to the subject matter\nhereof and supersedes all prior agreements and understandings whether written or oral, express or implied. If any provision of this Agreement is held\ninvalid, illegal or unenforceable by a court of competent jurisdiction, such shall not affect any other provision of this Agreement, which shall remain\nin full force and effect. No amendment or alteration of the terms of this Agreement shall be effective unless made in writing and executed by both\nparties hereto. A failure or delay in exercising any right in respect to this Agreement will not be presumed to operate as a waiver, and a single or\npartial exercise of any right will not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right. Any\nmodification or waiver of any provision of this Agreement shall not be effective unless made in writing. Any such waiver shall be effective only in the\nspecific instance and for the purpose given.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed below by their duly authorized signatories.\nJABIL, INC. IROBOT CORPORATION\nBy: /s/ Arthur W. Hook (Counter Party) By: /s/ Oscar Zamorano\nName: Arthur W. Hook Name: Oscar Zamorano\nTitle: Director of Sales Title VP Operations & Supply Chain\nDate: June 23rd, 2009 Date June 23rd, 2009\nAddress for notices to Counter Party: Address for notices to iROBOT CORPORATION:\nJabil, Inc. iRobot Corporation\nAttn: Legal Dept. Attn: Legal Department\n10560 Rev. Martin Luther King Jr. Street North 8 Crosby Drive\nSt. Petersburg, FL 33716 Bedford. MA 01730\nPortions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s\napplication requesting confidential treatment under Rule 24b-2 of the Exchange Act — [*] denotes omissions.	SCHEDULE 4\nTO MANUFACTURING SERVICES AGREEMENT\nBETWEEN JABIL AND COMPANY\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis MUTUAL NON-DISCLOSURE AGREEMENT (this "Agreement"), effective as of the date set forth last below, is made by and between the\nundersigned counter party (the "Counter Party") and IROBOT CORPORATION ("iROBOT"). In consideration of the mutual agreements and other\nprovisions of this Agreement, the parties hereto agree as follows:\n1 Scope of Proprietary Information.\n1.1 "Proprietary Information" means, subject to the exceptions set forth in Section 1.2 hereof, any information or data, regardless of whether it is\nin\ntangible form, that is disclosed by a party (the "Disclosing Party") to the other party (the "Receiving Party") and that (a) the Disclosing Party has\nmarked as confidential or proprietary, or (b) the Disclosing Party identifies as confidential or proprietary at the time of disclosure with written\nconfirmation within thirty (30) days of disclosure to the Receiving Party, provided, however, that:\n1.1.1 Reports and/or information related to or regarding the Disclosing Party's business plans, business methodologies, strategies, specifications,\ndevelopment plans, customers, and/or billing records will be deemed Proprietary Information of the Disclosing Party even if not so marked or\nidentified.\n1.1.2 Prototypes, mockups, models, designs, project deliverables, and/or depictions thereof, observed within or upon the Disclosing Party's business\npremises will be deemed Proprietary Information of the Disclosing Party even if not so marked or identified.\n1.2 "Proprietary Information" shall not include any information which: (a) the Receiving Party can show by written record was in its possession prior\nto disclosure by the Disclosing Party hereunder, provided that the Receiving Party must promptly notify the Disclosing Party of any prior knowledge\nin the manner provided in Section 5 below; (b) appears in a patent or publication, or which otherwise is or becomes generally known in the trade other\nthan through the Receiving Party's failure to observe any or all terms and conditions hereof; provided that the foregoing shall not be interpreted to\ncreate any express or implied license, or the right to obtain a license, to any patents which may be issued to the Disclosing Party; or (c) subsequent\nto\ndisclosure to the Receiving Party by the Disclosing Party, is obtained by the Receiving Party from a third person who is lawfully in possession of such\ninformation, and who is not in violation of any contractual, legal or fiduciary obligations to the Disclosing Party in making such disclosure to the\nReceiving Party and does not require the Receiving Party to refrain from disclosing such information to others.\n2 Use and Disclosure of Proprietary Information\n2.1 The Receiving Party may only use the Proprietary Information for the purpose of evaluating or operating pursuant to a business relationship or\npotential business relationship between the Receiving Party and the Disclosing Party (the "Permitted Purpose"). The Receiving Party must keep secret\nand shall not disclose, publish, divulge, furnish or make accessible to anyone any of the Proprietary Information of the Disclosing Party, other than\nfurnishing such Proprietary Information to the Receiving Party's employees, agents, representatives, consultants and contractors who are required to\nhave access to such Proprietary Information in connection with the Permitted Purpose during the time that the Receiving Party is permitted to retain\nsuch Proprietary Information hereunder; provided that such persons are bound by written agreements respecting the Proprietary Information in the\nmanner set forth in this Agreement.\n2.2 The Receiving Party shall not embody any of the Proprietary Information of the Disclosing Party in any of the Receiving Party's products,\nprocesses or services, or duplicate, copy or exploit any of such Proprietary Information in the Receiving Party's business, or otherwise use any of the\nProprietary Information for any purpose other than for the Permitted Purpose.\nPortions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company's\napplication requesting confidential treatment under Rule 24b-2 of the Exchange Act [*] denotes omissions.\n2.3 The Receiving Party shall use the equivalent of measures that the Receiving Party uses to protect the Receiving Party's own proprietary\ninformation, but in no event less than reasonable care and adequate measures, to protect the security of the Proprietary Information of the Disclosing\nParty and to ensure that any Proprietary Information of the Disclosing Party is not disclosed or otherwise made available to other persons or used in\nviolation of this Agreement.\n2.4 In the event that the Receiving Party is required by law to make any disclosure of any of the Proprietary Information of the Disclosing Party,\nby\nsubpoena, judicial or administrative order or otherwise, the Receiving Party shall first give written notice of such requirement to the Disclosing Party,\nand shall permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Proprietary Information, and provide full\ncooperation and assistance to the Disclosing Party in seeking to obtain such protection.\n3 Certain Rights and Limitations.\n3.1 The Receiving Party will provide upon the Disclosing Party's request a certification that access and use is being controlled in accordance with this\nAgreement.\n3.2 The provision of Proprietary Information hereunder shall not transfer any right, title or interest in such information to Receiving Party. Disclosing\nParty does not grant any express or implied right to Receiving Party to or under Disclosing Party's patents, copyrights, trademarks, trade secret\ninformation or other proprietary rights.\n3.3 All tangible embodiments of the Proprietary Information of the Disclosing Party (e.g., drawings, memoranda and notes) and all copies thereof,\nwhether in hard-copy or machine-readable form and whether supplied by the Disclosing Party or made by or for the Receiving Party (collectively, the\n"Tangible Embodiments"), shall at all times be and remain the property of the Disclosing Party.\n3.4 The Receiving Party shall not reverse-engineer, decompile, or disassemble any software or firmware disclosed or provided to it under\nthis\nAgreement and shall not remove, overprint or deface any notice of confidentiality, copyright, trademark, logo, legend or other notices of ownership or\nconfidentiality from any originals or copies of Proprietary Information it obtains from the Disclosing Party.\n4 Remedies. Receiving Party acknowledges that a breach by it of any of the terms of this Agreement would cause irreparable harm to the Disclosing\nParty for which Disclosing Party could not be adequately compensated by money damages. Accordingly, Receiving Party agrees that, in addition to\nall other remedies available to Disclosing Party in an action at law, in the event of any breach or threatened breach by the Receiving Party of the terms\nof this Agreement, the Disclosing Party shall, without the necessity of proving actual damages or posting any bond or other security, be entitled to\ntemporary and permanent injunctive relief, including, but not limited to, specific performance of the terms of this Agreement.\n5 Notice of Independent Knowledge or Breach. The Receiving Party agrees to notify the Disclosing Party promptly in writing if (a) upon disclosure\nof Proprietary Information by the Disclosing Party, the Receiving Party has prior knowledge of the same; or (b) subsequent to disclosure of any\nProprietary Information by the Disclosing Party, information is disclosed to the Receiving Party in a manner described in Section 1.2 or (c) the\nReceiving Party becomes aware of any breach of this Agreement with respect to the Proprietary Information of the Disclosing Party in the Receiving\nParty's possession.\n6 Termination.\n6.1 Notice and Effect of Termination. This Agreement shall remain in effect until it is terminated by either party with thirty (30) days prior written\nnotice. The terms and conditions of this Agreement shall survive any such termination with respect to Proprietary Information that is disclosed prior\nto the effective date of such termination for a period of [*] from the date of termination.\n6.2 Return of Proprietary Information. Upon the earlier of (a) the termination of this Agreement, (b) Disclosing Party's written request or (c) such\ntime as the Receiving Party no longer requires the Proprietary Information for the Permitted Purpose, Receiving Party agrees to promptly return to\nDisclosing Party or destroy all Proprietary Information and any Tangible Embodiments that are in the possession of Receiving Party and to certify the\nreturn or destruction of all such Proprietary Information and embodiments.\nPortions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company's\napplication requesting confidential treatment under Rule 24b-2 of the Exchange Act [*] denotes omissions.\n7 Warranty. Disclosing Party warrants that it has the right to make the disclosures under this Agreement. NO OTHER WARRANTY IS MADE BY\nEITHER PARTY UNDER THIS AGREEMENT. ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED "AS IS."\n8 United States Government Regulations. The parties shall adhere to any applicable U.S. and foreign export control laws and regulations and shall\nnot export or reexport any technical data or products received or the direct product of such technical data except in compliance with the applicable\nexport control laws and regulations of the U.S. and any applicable foreign country.\n9 Miscellaneous. This Agreement does not create any joint venture, pooling arrangement, agency or partnership relationship between the parties\nhereto, nor does it create any obligation or commitment on the part of either party to submit a proposal from or perform any contract or services with\nthe other party. Nothing herein shall be construed as providing for the sharing of profits or losses arising out of the parties efforts. This Agreement\nshall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts governing such agreements, without regard\nto conflicts-of-law principles. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate\nfederal or state court located in the Commonwealth of Massachusetts, and the parties agree not to raise, and waive, any objections or defenses based\nupon venue or forum non conveniens. This Agreement contains the complete and exclusive agreement of the parties with respect to the subject matter\nhereof and supersedes all prior agreements and understandings whether written or oral, express or implied. If any provision of this Agreement is held\ninvalid, illegal or unenforceable by a court of competent jurisdiction, such shall not affect any other provision of this Agreement, which shall remain\nin full force and effect. No amendment or alteration of the terms of this Agreement shall be effective unless made in writing and executed by both\nparties hereto. A failure or delay in exercising any right in respect to this Agreement will not be presumed to operate as a waiver, and a single or\npartial exercise of any right will not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right. Any\nmodification or waiver of any provision of this Agreement shall not be effective unless made in writing. Any such waiver shall be effective only in the\nspecific instance and for the purpose given.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed below by their duly authorized signatories.\nJABIL, INC.\nIROBOT CORPORATION\nBy: /s/ Arthur W. Hook\n(Counter Party)\nBy: /s/ Oscar Zamorano\nName: Arthur W. Hook\nName: Oscar Zamorano\nTitle: Director of Sales\nTitle VP Operations & Supply Chain\nDate: June 23rd, 2009\nDate June 23rd, 2009\nAddress for notices to Counter Party.:\nAddress for notices to iROBOT CORPORATION:\nJabil, Inc.\niRobot Corporation\nAttn: Legal Dept.\nAttn: Legal Department\n10560 Rev. Martin Luther King Jr. Street North\n8 Crosby Drive\nSt. Petersburg, FL 33716\nBedford. MA 01730\nPortions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company's\napplication requesting confidential treatment under Rule 24b-2 of the Exchange Act [*] denotes omissions.	SCHEDULE 4\nTO MANUFACTURING SERVICES AGREEMENT\nBETWEEN JABIL AND COMPANY\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), effective as of the date set forth last below, is made by and between the\nundersigned counter party (the “Counter Party”) and iROBOT CORPORATION (“iROBOT”). In consideration of the mutual agreements and other\nprovisions of this Agreement, the parties hereto agree as follows:\n1 Scope of Proprietary Information.\n1.1 “Proprietary Information” means, subject to the exceptions set forth in Section 1.2 hereof, any information or data, regardless of whether it is in\ntangible form, that is disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) and that (a) the Disclosing Party has\nmarked as confidential or proprietary, or (b) the Disclosing Party identifies as confidential or proprietary at the time of disclosure with written\nconfirmation within thirty (30) days of disclosure to the Receiving Party, provided, however, that:\n1.1.1 Reports and/or information related to or regarding the Disclosing Party’s business plans, business methodologies, strategies, specifications,\ndevelopment plans, customers, and/or billing records will be deemed Proprietary Information of the Disclosing Party even if not so marked or\nidentified.\n1.1.2 Prototypes, mockups, models, designs, project deliverables, and/or depictions thereof, observed within or upon the Disclosing Party’s business\npremises will be deemed Proprietary Information of the Disclosing Party even if not so marked or identified.\n1.2 “Proprietary Information” shall not include any information which: (a) the Receiving Party can show by written record was in its possession prior\nto disclosure by the Disclosing Party hereunder, provided that the Receiving Party must promptly notify the Disclosing Party of any prior knowledge\nin the manner provided in Section 5 below; (b) appears in a patent or publication, or which otherwise is or becomes generally known in the trade other\nthan through the Receiving Party’s failure to observe any or all terms and conditions hereof; provided that the foregoing shall not be interpreted to\ncreate any express or implied license, or the right to obtain a license, to any patents which may be issued to the Disclosing Party; or (c) subsequent to\ndisclosure to the Receiving Party by the Disclosing Party, is obtained by the Receiving Party from a third person who is lawfully in possession of such\ninformation, and who is not in violation of any contractual, legal or fiduciary obligations to the Disclosing Party in making such disclosure to the\nReceiving Party and does not require the Receiving Party to refrain from disclosing such information to others.\n2 Use and Disclosure of Proprietary Information.\n2.1 The Receiving Party may only use the Proprietary Information for the purpose of evaluating or operating pursuant to a business relationship or\npotential business relationship between the Receiving Party and the Disclosing Party (the “Permitted Purpose”). The Receiving Party must keep secret\nand shall not disclose, publish, divulge, furnish or make accessible to anyone any of the Proprietary Information of the Disclosing Party, other than\nfurnishing such Proprietary Information to the Receiving Party’s employees, agents, representatives, consultants and contractors who are required to\nhave access to such Proprietary Information in connection with the Permitted Purpose during the time that the Receiving Party is permitted to retain\nsuch Proprietary Information hereunder; provided that such persons are bound by written agreements respecting the Proprietary Information in the\nmanner set forth in this Agreement.\n2.2 The Receiving Party shall not embody any of the Proprietary Information of the Disclosing Party in any of the Receiving Party’s products,\nprocesses or services, or duplicate, copy or exploit any of such Proprietary Information in the Receiving Party’s business, or otherwise use any of the\nProprietary Information for any purpose other than for the Permitted Purpose.\nPortions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s\napplication requesting confidential treatment under Rule 24b-2 of the Exchange Act — [*] denotes omissions.\n2.3 The Receiving Party shall use the equivalent of measures that the Receiving Party uses to protect the Receiving Party’s own proprietary\ninformation, but in no event less than reasonable care and adequate measures, to protect the security of the Proprietary Information of the Disclosing\nParty and to ensure that any Proprietary Information of the Disclosing Party is not disclosed or otherwise made available to other persons or used in\nviolation of this Agreement.\n2.4 In the event that the Receiving Party is required by law to make any disclosure of any of the Proprietary Information of the Disclosing Party, by\nsubpoena, judicial or administrative order or otherwise, the Receiving Party shall first give written notice of such requirement to the Disclosing Party,\nand shall permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Proprietary Information, and provide full\ncooperation and assistance to the Disclosing Party in seeking to obtain such protection.\n3 Certain Rights and Limitations.\n3.1 The Receiving Party will provide upon the Disclosing Party’s request a certification that access and use is being controlled in accordance with this\nAgreement.\n3.2 The provision of Proprietary Information hereunder shall not transfer any right, title or interest in such information to Receiving Party. Disclosing\nParty does not grant any express or implied right to Receiving Party to or under Disclosing Party’s patents, copyrights, trademarks, trade secret\ninformation or other proprietary rights.\n3.3 All tangible embodiments of the Proprietary Information of the Disclosing Party (e.g., drawings, memoranda and notes) and all copies thereof,\nwhether in hard-copy or machine-readable form and whether supplied by the Disclosing Party or made by or for the Receiving Party (collectively, the\n“Tangible Embodiments”), shall at all times be and remain the property of the Disclosing Party.\n3.4 The Receiving Party shall not reverse-engineer, decompile, or disassemble any software or firmware disclosed or provided to it under this\nAgreement and shall not remove, overprint or deface any notice of confidentiality, copyright, trademark, logo, legend or other notices of ownership or\nconfidentiality from any originals or copies of Proprietary Information it obtains from the Disclosing Party.\n4 Remedies. Receiving Party acknowledges that a breach by it of any of the terms of this Agreement would cause irreparable harm to the Disclosing\nParty for which Disclosing Party could not be adequately compensated by money damages. Accordingly, Receiving Party agrees that, in addition to\nall other remedies available to Disclosing Party in an action at law, in the event of any breach or threatened breach by the Receiving Party of the terms\nof this Agreement, the Disclosing Party shall, without the necessity of proving actual damages or posting any bond or other security, be entitled to\ntemporary and permanent injunctive relief, including, but not limited to, specific performance of the terms of this Agreement.\n5 Notice of Independent Knowledge or Breach. The Receiving Party agrees to notify the Disclosing Party promptly in writing if (a) upon disclosure\nof Proprietary Information by the Disclosing Party, the Receiving Party has prior knowledge of the same; or (b) subsequent to disclosure of any\nProprietary Information by the Disclosing Party, information is disclosed to the Receiving Party in a manner described in Section 1.2 or (c) the\nReceiving Party becomes aware of any breach of this Agreement with respect to the Proprietary Information of the Disclosing Party in the Receiving\nParty’s possession.\n6 Termination.\n6.1 Notice and Effect of Termination. This Agreement shall remain in effect until it is terminated by either party with thirty (30) days prior written\nnotice. The terms and conditions of this Agreement shall survive any such termination with respect to Proprietary Information that is disclosed prior\nto the effective date of such termination for a period of [*] from the date of termination.\n6.2 Return of Proprietary Information. Upon the earlier of (a) the termination of this Agreement, (b) Disclosing Party’s written request or (c) such\ntime as the Receiving Party no longer requires the Proprietary Information for the Permitted Purpose, Receiving Party agrees to promptly return to\nDisclosing Party or destroy all Proprietary Information and any Tangible Embodiments that are in the possession of Receiving Party and to certify the\nreturn or destruction of all such Proprietary Information and embodiments.\nPortions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s\napplication requesting confidential treatment under Rule 24b-2 of the Exchange Act — [*] denotes omissions.\n7 Warranty. Disclosing Party warrants that it has the right to make the disclosures under this Agreement. NO OTHER WARRANTY IS MADE BY\nEITHER PARTY UNDER THIS AGREEMENT. ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED “AS IS.”\n8 United States Government Regulations. The parties shall adhere to any applicable U.S. and foreign export control laws and regulations and shall\nnot export or reexport any technical data or products received or the direct product of such technical data except in compliance with the applicable\nexport control laws and regulations of the U.S . and any applicable foreign country.\n9 Miscellaneous. This Agreement does not create any joint venture, pooling arrangement, agency or partnership relationship between the parties\nhereto, nor does it create any obligation or commitment on the part of either party to submit a proposal from or perform any contract or services with\nthe other party. Nothing herein shall be construed as providing for the sharing of profits or losses arising out of the parties efforts. This Agreement\nshall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts governing such agreements, without regard\nto conflicts-of-law principles. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate\nfederal or state court located in the Commonwealth of Massachusetts, and the parties agree not to raise, and waive, any objections or defenses based\nupon venue or forum non conveniens. This Agreement contains the complete and exclusive agreement of the parties with respect to the subject matter\nhereof and supersedes all prior agreements and understandings whether written or oral, express or implied. If any provision of this Agreement is held\ninvalid, illegal or unenforceable by a court of competent jurisdiction, such shall not affect any other provision of this Agreement, which shall remain\nin full force and effect. No amendment or alteration of the terms of this Agreement shall be effective unless made in writing and executed by both\nparties hereto. A failure or delay in exercising any right in respect to this Agreement will not be presumed to operate as a waiver, and a single or\npartial exercise of any right will not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right. Any\nmodification or waiver of any provision of this Agreement shall not be effective unless made in writing. Any such waiver shall be effective only in the\nspecific instance and for the purpose given.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed below by their duly authorized signatories.\nJABIL, INC.\nIROBOT CORPORATION\nBy: /s/ Arthur W. Hook\n(Counter Party)\nBy: /s/ Oscar Zamorano\nName: Arthur W. Hook\nName: Oscar Zamorano\nTitle: Director of Sales\nTitle VP Operations & Supply Chain\nDate: June 23rd, 2009\nDate June 23rd, 2009\nAddress for notices to Counter Party:\nAddress for notices to iROBOT CORPORATION:\nJabil, Inc.\niRobot Corporation\nAttn: Legal Dept.\nAttn: Legal Department\n10560 Rev. Martin Luther King Jr. Street North\n8 Crosby Drive\nSt. Petersburg, FL 33716\nBedford. MA 01730\nPortions of this Exhibit were omitted and have been filed separately with the Secretary of the Commission pursuant to the Company’s\napplication requesting confidential treatment under Rule 24b-2 of the Exchange Act — [*] denotes omissions.
+b29bfc4e7b6740f87dd1cd83c3b2d1e8.pdf	effective_date jurisdiction party	EXHIBIT 10.19\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nThis Non-Competition and Confidentiality Agreement (“Agreement”), is made as of the first day of December, 1998 and effective\nApril 1, 1998 between DR. JOHN J. HARRINGTON, an individual (“Employee”), and ATHERSYS, INC., a Delaware corporation\n(“Athersys”).\nRECITALS:\nA. Athersys is engaged in the competitive business of developing, marketing and selling certain core biotechnologies for the\ndiagnosis and treatment of genetic and infectious disease.\nB. Athersys employs Employee as of the date hereof (provided that nothing stated herein shall be deemed to be a promise by\nAthersys of future employment).\nC. As a part of such employment, Employee has access to certain “Confidential Information” (as herein defined).\nD. In consideration of the new employment arrangements set forth in the Amended and Restated Employment Agreement between\nEmployee and Athersys dated as of the date hereof (the “Employment Agreement”), Employee has agreed to execute this Agreement.\nE. For the purposes of this Agreement, the term “Athersys” shall be deemed to include Athersys, its predecessor and any affiliates\nor subsidiaries, together with their respective successors or assigns.\nAGREEMENTS:\nNOW THEREFORE, for and in consideration of the premises, mutual covenants and undertakings set forth herein, and other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties to this\nAgreement hereby agree as follows:\n1. Non-Competition and Confidentiality.\n(a) Employee agrees that, so long as he remains employed by Athersys in any capacity and for a period of eighteen (18) months\nafter the effective date of the termination of said employment by Athersys or Employee, Employee shall not do or suffer any of the\nfollowing:\n(i) Own, control or manage, or participate in the ownership, control or management of, render consulting services to, or be\nemployed by any corporation, partnership or other entity that is engaged in the business of researching, developing, marketing or\nselling any technology relating to the field of gene therapy, including,\nwithout limitation, synthetic microchromosomal technologies, gene activation technologies, centromere technologies or any other\ntype of technology, which is substantially similar to that researched, developed, marketed or sold or contemplated to be researched,\ndeveloped, marketed or sold by Athersys prior to the Termination Effective Date in any geographic areas in the United States or any\ncountries outside the United States where Athersys has researched, developed, marketed or sold such technologies prior to the\nTermination Effective Date. For the purposes of this subsection (i), the term “ownership” shall be defined as holding five percent\n(5%) or more ownership interest or voting control interest in the entity in issue;\n(ii) Knowingly attempt to employ or employ, attempt to assist in employing or assist in employing, or otherwise interfere with the\nemployment of, any employee or officer of Athersys; or\n(iii) Solicit, divert or attempt to divert any customer, sponsor, investor, research collaborator or other business relations of\nAthersys from associating, collaborating or otherwise doing business with Athersys.\nNotwithstanding the foregoing, the provisions of this Section 1(a) shall terminate on the date that Employee ceases to receive the\ntermination compensation from Athersys pursuant to Section 8(c) of the Employment Agreement.\n(b) Employee agrees that from and after the date of this Agreement, Employee shall not disclose, divulge, discuss, copy or\notherwise use or suffer to be used any item of confidential information of Athersys, including, without limitation, technologies,\nproduct development procedures, new products, customer lists, client lists, sales methods, pricing or cost data, software or software\ndocumentation, methods, product research or engineering data, documents, instruments, drawings, or designs (“Confidential\nInformation”). The term “Confidential Information” shall include, by way of example not limitation, any information which, in the\ngood faith opinion of the Board of Directors, constitutes “trade secrets” of Athersys, as such term is defined in Ohio Revised Code\nSection 1333.51 .\n2. Injunctive Relief. Employee acknowledges and agrees that: (i) each term of Section 1 of this Agreement is fully required to\nprotect Athersys’ interest and that no term in Section 1 confers a benefit on Athersys that is disproportionate to the detriment imposed\non Employee and each provision of such Section 1 is reasonable in time and territory and does not stifle Employee’s inherent skill\nand experience and will not operate as a bar to Employee’s sole means of support; (ii) the remedy at law for any breach by Employee\nof any term of Section 1 would be inadequate; and (iii) the damages flowing from such breach are not readily susceptible to\nmeasurement in monetary terms. Accordingly, upon adequate proof of Employee’s violation of any legally enforceable provision of\nSection 1 of this Agreement, Athersys shall be entitled to immediate injunctive relief and may obtain a temporary order restraining\nany threatened or future breach. Nothing in this Agreement shall\n2\nbe deemed to limit Athersys’ remedies at law or in equity for any breach by Employee of any term of this Agreement.\n3. Ownership of Technology. Any technology, procedure, design feature, invention, improvement, development or discovery\n(whether or not patentable or copyrightable) that Employee may conceive of, make, invent, suggest, or otherwise obtain knowledge\nof during the course of Employee’s employment or other relationship with Athersys (whether individually or jointly with any other\nperson or persons), relating in any way to the field of gene therapy or any other business of Athersys or to the proposed contemplated\nbusiness of which Athersys will be a part of, shall be the sole, exclusive and absolute property of Athersys, as shall all physical\nembodiments and manifestations thereof and all research data regarding, including, without limitation, all proprietary rights,\ntechniques, specifications, any methods and apparatuses for data manipulation and utilization. Employee will immediately disclose\nany such technology, procedure, design feature, invention, improvement, development or discovery to Athersys and will, at any time,\nupon Athersys’ request and without additional compensation, execute any documents and give all lawful testimony which may be\nrequired respecting the patenting or copyrighting of any such technology, procedure, design feature, invention, improvement,\ndevelopment or discovery, as well as any papers which may be considered necessary or helpful by Athersys in the processing of\napplications for patents thereon, to vest title thereto in Athersys, or which may relate to any litigation or controversy in connection\ntherewith, all expenses incident thereto to be borne by Athersys. Employee, whether or not still employed by Athersys, will cooperate\nwith Athersys, at Athersys’ expense, in any litigation or other matter relating to Athersys’ right in any of the foregoing.\n4. Severability. In the event that Sections 1, 2 and 3 shall be found by a court of competent jurisdiction to be invalid or\nunenforceable as against public policy, such court shall exercise its discretion in reforming such provisions to the end that Employee\nshall be subject to nondisclosure, noncompetitive and noninterference covenants that are reasonable under the circumstances and\nenforceable by Athersys. In the event that any other provision or term of this Agreement is found to be void or unenforceable to any\nextent for any reason, it is the agreed-upon intent of the parties hereto that all remaining provisions or terms of this Agreement shall\nremain in full force and effect to the maximum extent permitted and that this Agreement shall be enforceable as if such void or\nunenforceable provision or term had never been a part hereof. To the extent that any obligations of Employee in this Agreement shall\nbe illegal and/or unenforceable with respect to any jurisdiction, said covenants shall not be affected thereby with respect to each other\njurisdiction, such covenants with respect to each such jurisdiction being construed as severable and independent. In the event Seller\nshall violate any legally enforceable provision of this Agreement as to which there is a specific time period during which Athersys is\nprohibited from taking certain actions or from engaging in certain activities, as set forth in this Agreement, then, in such event, such\nviolation shall toll the running of such time period from the date such violation commences until, and including, the date such\nviolation shall cease.\n3\n5. Notice. Notices, demands and all other communications provided for in this Agreement will be in writing and will be deemed to\nhave been duly given when delivered, if delivered personally, or (unless otherwise specified) mailed by United States certified or\nregistered mail, return receipt requested, postage prepaid, and when received if delivered otherwise, addressed as follows:\nIf to Employee:\nDr. John J. Harrington\n6487 Meadowbrook Dr.\nMentor, Ohio 44060\nIf to Athersys:\nAthersys, Inc.\n11000 Cedar Avenue, Suite 210\nCleveland, Ohio 44106\nAttention: Dr. Gil Van Bokkelen, President\nor to such other address as any party may have furnished to the other in writing, except that notices of change of address will be\neffective only upon receipt.\n6. General Provisions. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification\nor discharge is agreed to in writing signed by the parties hereto. No waiver by either party to this Agreement at any time of any\nbreach by the other party of, or compliance with, any condition or provision of this Agreement to be performed by such other party\nwill be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. The validity,\ninterpretation, construction and performance of this Agreement will be governed by the laws of the State of Ohio without regard to its\nconflicts of law principles.\n7. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but\nall of which together will constitute one and the same instrument.\n8. Captions. The headings of paragraphs are included solely for convenience of reference only and are not part of this Agreement\nand will not be used in construing it.\n9. Consent to Jurisdiction and Forum. Employee expressly and irrevocably agrees that Athersys may bring any action, whether at\nlaw or in equity, arising out of or based upon this Agreement in the State of Ohio or in any federal court therein. Employee\nirrevocably consents to personal jurisdiction in such court and to accept service of process in accordance with the provisions of the\nlaws of the State of Ohio.\n4\n10. Entire Agreement. This Agreement sets forth the entire agreement of the parties in respect of the subject matter contained in\nthis Agreement and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or\nwarranties, whether oral or written, by any officer, employee or representative of any party; and any prior agreement of the parties in\nrespect of the subject mater contained in this Agreement is terminated and canceled.\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Confidentiality Agreement as of the date first\nabove written.\nATHERSYS, INC.\nBy:\n/s/ Gil Van Bokkelen\nGil Van Bokkelen, President & CEO\n“EMPLOYEE”\n/s/ Dr. John J. Harrington\nDr. John J. Harrington\n5	EXHIBIT 10.19\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nThis Non-Competition and Confidentiality Agreement (”A greement”), is made as of the first day of December, 1998 and effective\nApril 1, 1998 between DR. JOHN J. HARRINGTON, an individual (”Employee”), and ATHERSY S, INC., a Delaware corporation\n(”A thersys”).\nRECITALS:\nA. Athersys is engaged in the competitive business of developing, marketing and selling certain core biotechnologies for the\ndiagnosis and treatment of genetic and infectious disease.\nB. Athersys employs Employee as of the date hereof (provided that nothing stated herein shall be deemed to be a promise by\nAthersys of future employment).\nC. A s a part of such employment, Employee has access to certain ”Confidential Information” (as herein defined).\nD. In consideration of the new employment arrangements set forth in the Amended and Restated Employment Agreement between\nEmployee and Athersys dated as of the date hereof (the ”Employment Agreement"), Employee has agreed to execute this Agreement.\nE. For the purposes of this Agreement, the term ”A thersys" shall be deemed to include Athersys, its predecessor and any affiliates\nor subsidiaries, together with their respective successors or assigns.\nAGREEMENTS:\nNOW THEREFORE, for and in consideration of the premises, mutual covenants and undertakings set forth herein, and other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties to this\nA greement hereby agree as follows:\n1. Non-Competition and Confidentialifl.\n(a) Employee agrees that, so long as he remains employed by Athersys in any capacity and for a period of eighteen (18) months\nafter the effective date of the termination of said employment by Athersys or Employee, Employee shall not do or suffer any of the\nfollowing:\n(i) Own, control or manage, or participate in the ownership, control or management of, render consulting services to, or be\nemployed by any corporation, partnership or other entity that is engaged in the business of researching, developing, marketing or\nselling any technology relating to the field of gene therapy, including,\nwithout limitation, synthetic microchromosomal technologies, gene activation technologies, centromere technologies or any other\ntype of technology, which is substantially similar to that researched, developed, marketed or sold or contemplated to be researched,\ndeveloped, marketed or sold by Athersys prior to the Termination Effective Date in any geographic areas in the United States or any\ncountries outside the United States where Athersys has researched, developed, marketed or sold such technologies prior to the\nTermination Effective Date. For the purposes of this subsection (i), the term ”ownership” shall be defined as holding five percent\n(5%) or more ownership interest or voting control interest in the entity in issue;\n(ii) Knowingly attempt to employ or employ, attempt to assist in employing or assist in employing, or otherwise interfere with the\nemployment of, any employee or officer of Athersys; or\n(iii) Solicit, divert or attempt to divert any customer, sponsor, investor, research collaborator or other business relations of\nAthersys from associating, collaborating or otherwise doing business with Athersys.\nNotwithstanding the foregoing, the provisions of this Section 1(a) shall terminate on the date that Employee ceases to receive the\ntermination compensation from Athersys pursuant to Section 8(c) of the Employment Agreement.\n(b) Employee agrees that from and after the date of this Agreement, Employee shall not disclose, divulge, discuss, copy or\notherwise use or suffer to be used any item of confidential information of Athersys, including, without limitation, technologies,\nproduct development procedures, new products, customer lists, client lists, sales methods, pricing or cost data, software or software\ndocumentation, methods, product research or engineering data, documents, instruments, drawings, or designs (”Confidential\nInformation”). The term ”Confidential Information” shall include, by way of example not limitation, any information which, in the\ngood faith opinion of the Board of Directors, constitutes ”trade secrets” of Athersys, as such term is defined in Ohio Revised Code\nSection 1333.51.\n2. lnjunctive Relief. Employee acknowledges and agrees that: (i) each term of Section 1 of this Agreement is fully required to\nprotect Athersys' interest and that no term in Section 1 confers a benefit on Athersys that is disproportionate to the detriment imposed\non Employee and each provision of such Section 1 is reasonable in time and territory and does not stifle Employee' s inherent skill\nand experience and will not operate as a bar to Employee' s sole means of support; (ii) the remedy at law for any breach by Employee\nof any term of Section 1 would be inadequate; and (iii) the damages flowing from such breach are not readily susceptible to\nmeasurement in monetary terms. Accordingly, upon adequate proof of Employee’s violation of any legally enforceable provision of\nSection 1 of this Agreement, Athersys shall be entitled to immediate injunctive relief and may obtain a temporary order restraining\nany threatened or future breach. Nothing in this Agreement shall\nbe deemed to limit Athersys' remedies at law or in equity for any breach by Employee of any term of this Agreement.\n3. Ownership of Technology. Any technology, procedure, design feature, invention, improvement, development or discovery\n(whether or not patentable or copyrightable) that Employee may conceive of, make, invent, suggest, or otherwise obtain knowledge\nof during the course of Employee' s employment or other relationship with Athersys (whether individually or jointly with any other\nperson or persons), relating in any way to the field of gene therapy or any other business of Athersys or to the proposed contemplated\nbusiness of which Athersys will be a part of, shall be the sole, exclusive and absolute property of Athersys, as shall all physical\nembodiments and manifestations thereof and all research data regarding, including, without limitation, all proprietary rights,\ntechniques, specifications, any methods and apparatuses for data manipulation and utilization. Employee will immediately disclose\nany such technology, procedure, design feature, invention, improvement, development or discovery to Athersys and will, at any time,\nupon Athersys' request and without additional compensation, execute any documents and give all lawful testimony which may be\nrequired respecting the patenting or copyrighting of any such technology, procedure, design feature, invention, improvement,\ndevelopment or discovery, as well as any papers which may be considered necessary or helpful by Athersys in the processing of\napplications for patents thereon, to vest title thereto in Athersys, or which may relate to any litigation or controversy in connection\ntherewith, all expenses incident thereto to be borne by Athersys. Employee, whether or not still employed by Athersys, will cooperate\nwith Athersys, at Athersys' expense, in any litigation or other matter relating to Athersys' right in any of the foregoing.\n4. Severabilifl. In the event that Sections 1, 2 and 3 shall be found by a court of competent jurisdiction to be invalid or\nunenforceable as against public policy, such court shall exercise its discretion in reforming such provisions to the end that Employee\nshall be subject to nondisclosure, noncompetitive and noninterference covenants that are reasonable under the circumstances and\nenforceable by Athersys. In the event that any other provision or term of this Agreement is found to be void or unenforceable to any\nextent for any reason, it is the agreed-upon intent of the parties hereto that all remaining provisions or terms of this Agreement shall\nremain in full force and effect to the maximum extent permitted and that this Agreement shall be enforceable as if such void or\nunenforceable provision or term had never been a part hereof. To the extent that any obligations of Employee in this Agreement shall\nbe illegal and/or unenforceable with respect to any jurisdiction, said covenants shall not be affected thereby with respect to each other\njurisdiction, such covenants with respect to each such jurisdiction being construed as severable and independent. In the event Seller\nshall violate any legally enforceable provision of this A greement as to which there is a specific time period during which Athersys is\nprohibited from taking certain actions or from engaging in certain activities, as set forth in this Agreement, then, in such event, such\nviolation shall toll the running of such time period from the date such violation commences until, and including, the date such\nviolation shall cease.\n5. Notice. Notices, demands and all other communications provided for in this Agreement will be in writing and will be deemed to\nhave been duly given when delivered, if delivered personally, or (unless otherwise specified) mailed by United States certified or\nregistered mail, return receipt requested, postage prepaid, and when received if delivered otherwise, addressed as follows:\nIf to Employee:\nDr. John J. Harrington\n6487 Meadowbrook Dr.\nMentor, Ohio 44060\nIf to Athersys:\nAthersys, Inc.\n11000 Cedar Avenue, Suite 210\nCleveland, Ohio 44106\nAttention: Dr. Gil V an B okkelen, President\nor to such other address as any party may have furnished to the other in writing, except that notices of change of address will be\neffective only upon receipt.\n6. General Provisions. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification\nor discharge is agreed to in writing signed by the parties hereto. No waiver by either party to this Agreement at any time of any\nbreach by the other party of, or compliance with, any condition or provision of this Agreement to be performed by such other party\nwill be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. The validity,\ninterpretation, construction and performance of this Agreement will be governed by the laws of the State of Ohio without regard to its\nconflicts of law principles.\n7. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but\nall of which together will constitute one and the same instrument.\n8. Captions. The headings of paragraphs are included solely for convenience of reference only and are not part of this Agreement\nand will not be used in construing it.\n9. Consent to urisdiction and Forum. Employee expressly and irrevocably agrees that Athersys may bring any action, whether at\nlaw or in equity, arising out of or based upon this Agreement in the State of Ohio or in any federal court therein. Employee\nirrevocably consents to personal jurisdiction in such court and to accept service of process in accordance with the provisions of the\nlaws of the State of Ohio.\n10. Entire Agreement. This Agreement sets forth the entire agreement of the parties in respect of the subject matter contained in\nthis Agreement and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or\nwarranties, whether oral or written, by any officer, employee or representative of any party; and any prior agreement of the parties in\nrespect of the subject mater contained in this Agreement is terminated and canceled.\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Confidentiality Agreement as of the date first\nabove written.\nATHERSY S, INC.\nBy: /s/ Gil Van Bokkelen\n(31 Van BoERe en, Pres1dent82 (2E0\n”EMPLOY EE"\n/s/ Dr. John]. Harrington\nr. o . arring on	EXHIBIT 10.19\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nThis Non-Competition and Confidentiality A greement "Agreement"), is made as of the first day of December, 1998 and effective\npril 1, 1998 between DR. JOHN J. IARRINGTON, an individual ("Employee"), and ATHERSY S, INC., a Delaware corporation\n("Athersys").\nRECITALS:\nA. A thersys is engaged in the competitive business of developing, marketing and selling certain core biotechnologies for the\ndiagnosis and treatment of genetic and infectious disease.\nB. A thersys employs Employee as of the date hereof (provided that nothing stated herein shall be deemed to be a promise by\nA thersys of future employment).\nC. A a part of such employment, Employee has access to certain "Confidential Information" (as herein defined).\nD. In consideration of the new employment arrangements set forth in the Amended and Restated Employment A greement between\nEmployee and A thersys dated as of the date hereof (the "Employment A greement"), Employee has agreed to execute this A greement.\nE. For the purposes of this Agreement, the term "Athersys" shall be deemed to include A thersys, its predecessor and any affiliates\nor subsidiaries, together with their respective successors or assigns.\nAGREEMENTS:\nNOW THEREFORE, for and in consideration of the premises, mutual covenants and undertakings set forth herein, and other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties to this\nA greement hereby agree as follows:\n1. Non-Competition and Confidentiality.\n(a) Employee agrees that, so long as he remains employed by A thersys in any capacity and for a period of eighteen (18) months\nafter the effective date of the termination of said employment by A thersys or Employee, Employee shall not do or suffer any of the\nfollowing:\n(i) Own, control or manage, or participate in the ownership, control or management of, render consulting services to, or be\nemployed by any corporation partnership or other entity that is engaged in the business of researching, developing, marketing or\nselling any technology relating to the field of gene therapy, including,\nwithout limitation, synthetic microchromosomal technologies, gene activation technologies, centromere technologies or any other\ntype of technology, which is substantially similar to that researched, developed, marketed or sold or contemplated to be researched,\ndeveloped, marketed or sold by A thersys prior to the Termination Effective Date in any geographic areas in the United States or any\ncountries outside the United States where A thersys has researched developed, marketed or sold such technologies prior to the\nTermination Effective Date. For the purposes of this subsection (i), the term "ownership" shall be defined as holding five percent\n(5%) or more ownership interest or voting control interest in the entity in issue;\n(ii) Knowingly attempt to employ or employ, attempt to assist in employing or assist in employing, or otherwise interfere with the\nemployment of, any employee or officer of A thersys; or\n(iii) Solicit, divert or attempt to divert any customer, sponsor, investor, research collaborator or other business relations of\nA thersys from associating, collaborating or otherwise doing business with A thersys.\nNotwithstanding the foregoing, the provisions of this Section 1(a) shall terminate on the date that Employee ceases to receive the\ntermination compensation from A thersys pursuant to Section 8(c) of the Employment A greement\n(b) Employee agrees that from and after the date of this greement, Employee shall not disclose, divulge, discuss, copy or\notherwise use or suffer to be used any item of confidential information of A thersys, including, without limitation, technologies,\nproduct development procedures, new products, customer lists, client lists, sales methods, pricing or cost data, software or software\ndocumentation, methods, product research or engineering data, documents, instruments, drawings or designs ("Confidential\nInformation"). The term "Confidential Information" shall include, by way of example not limitation, any information which, in the\ngood faith opinion of the Board of Directors, constitutes "trade secrets" of A thersys, as such term is defined in Ohio Revised Code\nSection 1333.51.\n2. Injunctive Relief. Employee acknowledges and agrees that: (i) each term of Section 1 of this greement is fully required to\nprotect A thersys' interest and that no term in Section 1 confers a benefit on A thersys that is disproportionate to the detriment imposed\non Employee and each provision of such Section 1 is reasonable in time and territory and does not stifle Employee's inherent skill\nand experience and will not operate as a bar to Employee's sole means of support; (ii) the remedy at law for any breach by Employee\nof any term of Section 1 would be inadequate; and (iii) the damages flowing from such breach are not readily susceptible to\nmeasurement in monetary terms. A ccordingly, upon adequate proof of Employee's violation of any legally enforceable provision\nof\nSection 1 of this A greement, A thersys shall be entitled to immediate injunctive relief and may obtain a temporary order restraining\nany threatened or future breach. Nothing in this Agreement shall\n2\nbe deemed to limit A thersys' remedies at law or in equity for any breach by Employee of any term of this A greement.\n3. Ownership of Technology Any technology, procedure, design feature, invention, improvement, development or discovery\n(whether or not patentable or copyrightable) that Employee may conceive of, make, invent, suggest, or otherwise obtain knowledge\nof during the course of Employee's employment or other relationship with A thersys (whether individually or jointly with any other\nperson or persons), relating in any way to the field of gene therapy or any other business of A thersys or to the proposed contemplated\nbusiness of which A thersys will be a part of, shall be the sole, exclusive and absolute property of thersys, as shall all physical\nembodiments and manifestations thereof and all research data regarding, including, without limitation, all proprietary rights,\ntechniques, specifications, any methods and apparatuses for data manipulation and utilization. Employee will immediately disclose\nany such technology, procedure, design feature, invention, improvement, development or discovery to A thersys and will, at any time,\nupon A thersys' request and without additional compensation, execute any documents and give all lawful testimony which may be\nrequired respecting the patenting or copyrighting of any such technology, procedure, design feature, invention, improvement,\ndevelopment or discovery, as well as any papers which may be considered necessary or helpful by A thersys in the processing of\napplications for patents thereon, to vest title thereto in A thersys, or which may relate to any litigation or controversy in connection\ntherewith, all expenses incident thereto to be borne by A thersys. Employee, whether or not still employed by thersys, will cooperate\nwith A thersys, at thersys' expense, in any litigation or other matter relating to Athersys' right in any of the foregoing.\n4. Severability. In the event that Sections 1, 2 and 3 shall be found by a court of competent jurisdiction to be invalid or\nunenforceable as against public policy, such court shall exercise its discretion in reforming such provisions to the end that Employee\nshall be subject to nondisclosure, noncompetitive and noninterference covenants that are reasonable under the circumstances and\nenforceable by A thersys. In the event that any other provision or term of this A greement is found to be void or unenforceable to\nany\nextent for any reason, it is the agreed-upon intent of the parties hereto that all remaining provisions or terms of this greement shall\nremain in full force and effect to the maximum extent permitted and that this A greement shall be enforceable as if such void or\nunenforceable provision or term had never been a part hereof. To the extent that any obligations of Employee in this A greement shall\nbe illegal and/or unenforceable with respect to any jurisdiction said covenants shall not be affected thereby with respect to each other\njurisdiction, such covenants with respect to each such jurisdiction being construed as severable and independent. In the event Seller\nshall violate any legally enforceable provision of this A greement as to which there is a specific time period during which A thersys is\nprohibited from taking certain actions or from engaging in certain activities, as set forth in this greement, then, in such event, such\nviolation shall toll the running of such time period from the date such violation commences until, and including, the date such\nviolation shall cease.\n3\n5. Notice. Notices, demands and all other communications provided for in this A greement will be in writing and will be deemed to\nhave been duly given when delivered, if delivered personally, or (unless otherwise specified) mailed by United States certified or\nregistered mail, return receipt requested, postage prepaid, and when received if delivered otherwise, addressed as follows:\nIf to Employee:\nDr. John J. Harrington\n6487 Meadowbrook Dr.\nMentor, Ohio 44060\nIf to A thersys:\nA thersys, Inc.\n11000 Cedar Avenue, Suite 210\nCleveland, Ohio 44106\nA ttention: Dr. Gil Van Bokkelen, President\nor\nto such other address as any party may have furnished to the other in writing, except that notices of change of address will be\neffective only upon receipt.\n6. General Provisions. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification\nor discharge is agreed to in writing signed by the parties hereto. No waiver by either party to this A greement at any time of any\nbreach by the other party of, or compliance with, any condition or provision of this A greement to be performed by such other party\nwill be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. The validity,\ninterpretation, construction and performance of this A greement will be governed by the laws of the State of Ohio without regard to its\nconflicts of law principles.\n7. Counterparts. This A greement may be executed in one or more counterparts, each of which will be deemed to be an original but\nall of which together will constitute one and the same instrument.\n8. Captions. The headings of paragraphs are included solely for convenience of reference only and are not part of this Agreement\nand will not be used in construing it.\n9. Consent to Jurisdiction and Forum. Employee expressly and irrevocably agrees that A thersys may bring any action, whether at\nlaw or in equity, arising out of or based upon this A greement in the State of Ohio or in any federal court therein. Employee\nirrevocably consents to personal jurisdiction in such court and to accept service of process in accordance with the provisions of the\nlaws of the State of Ohio.\n4\n10. Entire A greement. This A greement sets forth the entire agreement of the parties in respect of the subject matter contained in\nthis A greement and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or\nwarranties, whether oral or written by any officer, employee or representative of any party; and any prior agreement of the parties in\nrespect of the subject mater contained in this A greement is terminated and canceled.\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Confidentiality Agreement as of the date first\nabove written.\nATHERSY S, INC.\nBy:\n/s/ Gil Van Bokkelen\nGil Van Bokkelen, President CEO\n"EMPLOY EE"\n/s/ Dr. John J. Harrington\nDr. John Harrngton\n5	EXHIBIT 10.19\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nThis Non-Competition and Confidentiality Agreement (“Agreement”), is made as of the first day of December, 1998 and effective\nApril 1, 1998 between DR. JOHN J. HARRINGTON, an individual (“Employee”), and ATHERSYS, INC., a Delaware corporation\n(“Athersys”).\nRECITALS:\nA. Athersys is engaged in the competitive business of developing, marketing and selling certain core biotechnologies for the\ndiagnosis and treatment of genetic and infectious disease.\nB. Athersys employs Employee as of the date hereof (provided that nothing stated herein shall be deemed to be a promise by\nAthersys of future employment).\nC. As a part of such employment, Employee has access to certain “Confidential Information” (as herein defined).\nD. In consideration of the new employment arrangements set forth in the Amended and Restated Employment Agreement between\nEmployee and Athersys dated as of the date hereof (the “Employment Agreement”), Employee has agreed to execute this Agreement.\nE. For the purposes of this Agreement, the term “Athersys” shall be deemed to include Athersys, its predecessor and any affiliates\nor subsidiaries, together with their respective successors or assigns.\nAGREEMENTS:\nNOW THEREFORE, for and in consideration of the premises, mutual covenants and undertakings set forth herein, and other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties to this\nAgreement hereby agree as follows:\n1. Non-Competition and Confidentiality.\n(a) Employee agrees that, so long as he remains employed by Athersys in any capacity and for a period of eighteen (18) months\nafter the effective date of the termination of said employment by Athersys or Employee, Employee shall not do or suffer any of the\nfollowing:\n(i) Own, control or manage, or participate in the ownership, control or management of, render consulting services to, or be\nemployed by any corporation, partnership or other entity that is engaged in the business of researching, developing, marketing or\nselling any technology relating to the field of gene therapy, including,\nwithout limitation, synthetic microchromosomal technologies, gene activation technologies, centromere technologies or any other\ntype of technology, which is substantially similar to that researched, developed, marketed or sold or contemplated to be researched,\ndeveloped, marketed or sold by Athersys prior to the Termination Effective Date in any geographic areas in the United States or any\ncountries outside the United States where Athersys has researched, developed, marketed or sold such technologies prior to the\nTermination Effective Date. For the purposes of this subsection (i), the term “ownership” shall be defined as holding five percent\n(5%) or more ownership interest or voting control interest in the entity in issue;\n(ii) Knowingly attempt to employ or employ, attempt to assist in employing or assist in employing, or otherwise interfere with the\nemployment of, any employee or officer of Athersys; or\n(iii) Solicit, divert or attempt to divert any customer, sponsor, investor, research collaborator or other business relations of\nAthersys from associating, collaborating or otherwise doing business with Athersys.\nNotwithstanding the foregoing, the provisions of this Section 1(a) shall terminate on the date that Employee ceases to receive the\ntermination compensation from Athersys pursuant to Section 8(c) of the Employment Agreement.\n(b) Employee agrees that from and after the date of this Agreement, Employee shall not disclose, divulge, discuss, copy or\notherwise use or suffer to be used any item of confidential information of Athersys, including, without limitation, technologies,\nproduct development procedures, new products, customer lists, client lists, sales methods, pricing or cost data, software or software\ndocumentation, methods, product research or engineering data, documents, instruments, drawings, or designs (“Confidential\nInformation”). The term “Confidential Information” shall include, by way of example not limitation, any information which, in the\ngood faith opinion of the Board of Directors, constitutes “trade secrets” of Athersys, as such term is defined in Ohio Revised Code\nSection 1333.51 .\n2. Injunctive Relief. Employee acknowledges and agrees that: (i) each term of Section 1 of this Agreement is fully required to\nprotect Athersys’ interest and that no term in Section 1 confers a benefit on Athersys that is disproportionate to the detriment imposed\non Employee and each provision of such Section 1 is reasonable in time and territory and does not stifle Employee’s inherent skill\nand experience and will not operate as a bar to Employee’s sole means of support; (ii) the remedy at law for any breach by Employee\nof any term of Section 1 would be inadequate; and (iii) the damages flowing from such breach are not readily susceptible to\nmeasurement in monetary terms. Accordingly, upon adequate proof of Employee’s violation of any legally enforceable provision of\nSection 1 of this Agreement, Athersys shall be entitled to immediate injunctive relief and may obtain a temporary order restraining\nany threatened or future breach. Nothing in this Agreement shall\n2\nbe deemed to limit Athersys’ remedies at law or in equity for any breach by Employee of any term of this Agreement.\n3. Ownership of Technology. Any technology, procedure, design feature, invention, improvement, development or discovery\n(whether or not patentable or copyrightable) that Employee may conceive of, make, invent, suggest, or otherwise obtain knowledge\nof during the course of Employee’s employment or other relationship with Athersys (whether individually or jointly with any other\nperson or persons), relating in any way to the field of gene therapy or any other business of Athersys or to the proposed contemplated\nbusiness of which Athersys will be a part of, shall be the sole, exclusive and absolute property of Athersys, as shall all physical\nembodiments and manifestations thereof and all research data regarding, including, without limitation, all proprietary rights,\ntechniques, specifications, any methods and apparatuses for data manipulation and utilization. Employee will immediately disclose\nany such technology, procedure, design feature, invention, improvement, development or discovery to Athersys and will, at any time,\nupon Athersys’ request and without additional compensation, execute any documents and give all lawful testimony which may be\nrequired respecting the patenting or copyrighting of any such technology, procedure, design feature, invention, improvement,\ndevelopment or discovery, as well as any papers which may be considered necessary or helpful by Athersys in the processing of\napplications for patents thereon, to vest title thereto in Athersys, or which may relate to any litigation or controversy in connection\ntherewith, all expenses incident thereto to be borne by Athersys. Employee, whether or not still employed by Athersys, will cooperate\nwith Athersys, at Athersys’ expense, in any litigation or other matter relating to Athersys’ right in any of the foregoing.\n4. Severability. In the event that Sections 1, 2 and 3 shall be found by a court of competent jurisdiction to be invalid or\nunenforceable as against public policy, such court shall exercise its discretion in reforming such provisions to the end that Employee\nshall be subject to nondisclosure, noncompetitive and noninterference covenants that are reasonable under the circumstances and\nenforceable by Athersys. In the event that any other provision or term of this Agreement is found to be void or unenforceable to any\nextent for any reason, it is the agreed-upon intent of the parties hereto that all remaining provisions or terms of this Agreement shall\nremain in full force and effect to the maximum extent permitted and that this Agreement shall be enforceable as if such void or\nunenforceable provision or term had never been a part hereof. To the extent that any obligations of Employee in this Agreement shall\nbe illegal and/or unenforceable with respect to any jurisdiction, said covenants shall not be affected thereby with respect to each other\njurisdiction, such covenants with respect to each such jurisdiction being construed as severable and independent. In the event Seller\nshall violate any legally enforceable provision of this Agreement as to which there is a specific time period during which Athersys is\nprohibited from taking certain actions or from engaging in certain activities, as set forth in this Agreement, then, in such event, such\nviolation shall toll the running of such time period from the date such violation commences until, and including, the date such\nviolation shall cease.\n3\n5. Notice. Notices, demands and all other communications provided for in this Agreement will be in writing and will be deemed to\nhave been duly given when delivered, if delivered personally, or (unless otherwise specified) mailed by United States certified or\nregistered mail, return receipt requested, postage prepaid, and when received if delivered otherwise, addressed as follows:\nIf to Employee:\nDr. John J. Harrington\n6487 Meadowbrook Dr.\nMentor, Ohio 44060\nIf to Athersys:\nAthersys, Inc.\n11000 Cedar Avenue, Suite 210\nCleveland, Ohio 44106\nAttention: Dr. Gil Van Bokkelen, President\nor to such other address as any party may have furnished to the other in writing, except that notices of change of address will be\neffective only upon receipt.\n6. General Provisions. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification\nor discharge is agreed to in writing signed by the parties hereto. No waiver by either party to this Agreement at any time of any\nbreach by the other party of, or compliance with, any condition or provision of this Agreement to be performed by such other party\nwill be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. The validity,\ninterpretation, construction and performance of this Agreement will be governed by the laws of the State of Ohio without regard to its\nconflicts of law principles.\n7. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but\nall of which together will constitute one and the same instrument.\n8. Captions. The headings of paragraphs are included solely for convenience of reference only and are not part of this Agreement\nand will not be used in construing it.\n9. Consent to Jurisdiction and Forum. Employee expressly and irrevocably agrees that Athersys may bring any action, whether at\nlaw or in equity, arising out of or based upon this Agreement in the State of Ohio or in any federal court therein. Employee\nirrevocably consents to personal jurisdiction in such court and to accept service of process in accordance with the provisions of the\nlaws of the State of Ohio.\n4\n10. Entire Agreement. This Agreement sets forth the entire agreement of the parties in respect of the subject matter contained in\nthis Agreement and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or\nwarranties, whether oral or written, by any officer, employee or representative of any party; and any prior agreement of the parties in\nrespect of the subject mater contained in this Agreement is terminated and canceled.\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Confidentiality Agreement as of the date first\nabove written.\nATHERSYS, INC.\nBy:\n/s/ Gil Van Bokkelen\nGil Van Bokkelen, President & CEO\n“EMPLOYEE”\n/s/ Dr. John J. Harrington\nDr. John J. Harrington\n5
+b2a6e7e95e101794df750e892a8afa42.pdf	effective_date jurisdiction party term	EX-99.E3 3 dex99e3.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(3)\nLOGO\n345 California Street, Suite 2400 San Francisco, CA 94104\nTel: (800) 981-1203\nFax: (415) 277-1552\nTel: (415) 277-1500\nPiper Jaffray & Co. Since 1895. Member SIPC and NYSE.\nCONFIDENTIAL\nFebruary 19, 2008\nMr. Anthony Morro\nBay Harbour Management, L.C.\n885 Third Avenue, 34th Floor\nNew York, NY 10022\nDear Mr. Morro:\nWe have advised you that Piper Jaffray & Co. (“Piper Jaffray”) has been retained on behalf of BUCA, Inc. (the “Company”) to explore a possible\nacquisition transaction (“Transaction”) between the Company and Bay Harbour Management, L.C. (“you” or “your”). You have indicated an interest\nin a Transaction with the Company and agree to enter into this letter agreement to facilitate the delivery of certain information to you to assist you in\nthe evaluation of a Transaction.\n1. Evaluation Material\n(a) As a condition to furnishing you with such information you agree to treat confidentially such information and any other information, whether\nwritten or oral, relating to the Company that Piper Jaffray or any of the Company’s officers, employees, affiliates, representatives or agents furnish,\nwhether directly or indirectly, whether before or after the date hereof, to you or to which you are otherwise afforded access (collectively, the\n“Evaluation Material”). The term “Evaluation Material” shall also include any and all information which contains or otherwise reflects or is derived,\ndirectly or indirectly, therefrom, as well as any and all notes, analyses, compilations, studies or other documents prepared by any of (i) you, (ii) your\ndirectors, agents, representatives and employees and advisors retained and engaged by you in connection with the Transaction (collectively, your\n“Agents”), or (iii) your prospective debt financing sources who have been identified in writing to Piper Jaffray (collectively, your “Lenders”) which\ncontain or otherwise reflect or are derived, directly or indirectly, from such information. Notwithstanding the foregoing, the term Evaluation Material\ndoes not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by you or your Agents or\nLenders or (ii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Agents, provided that such\nsource is not known by you to be bound by any contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with\nrespect to such information and you and your Representatives have no reasonable basis for concluding that such source may be so bound.\n(b) You agree that the Evaluation Material shall be held and treated by you and your Agents and Lenders with the utmost and strictest\nconfidence, and shall not, without the prior written consent of the Company, be disclosed by you or your Agents or Lenders in any manner\nwhatsoever, in whole or in part, or used by you or your Agents or Lenders other than for the purpose of evaluating a Transaction. The Evaluation\nMaterial shall not, without the prior written consent of the Company, be disclosed to any person or entity other than your Agents or Lenders who\nneed to know such information for the purpose of evaluating a Transaction (and in those instances only to the extent justifiable by that need);\nprovided, however, that such Agents or Lenders must be informed by you of the confidential nature of the Evaluation Material and must agree to be\nbound by this letter agreement prior to any such disclosure. You agree to be responsible for any disclosure of Evaluation Material or any breach of\nthis letter agreement by your Agents or Lenders as if they were a party hereto. In addition, you will not, and you will direct your Agents and Lenders\nnot to, disclose that discussions or negotiations are taking place concerning a possible Transaction between you and the Company, or any of the\nterms, conditions or other information with respect to any such possible Transaction including the status thereof. With respect to any Evaluation\nMaterial disclosed to you that is the subject of a confidentiality agreement between the Company or Piper Jaffray and any third party, you agree to\ncomply with the terms of such confidentiality agreements, for the benefit of each of the Company and Piper Jaffray, as if you were a recipient of\nconfidential information thereunder and a signatory thereto, but only to the extent that such confidentiality agreements are more restrictive than the\nterms hereof.\n(c) Until the earliest of the execution of a definitive agreement, an acquisition of the Company by you or a third party, or eighteen months (18) from\nthe date of this agreement, you will not initiate or maintain contact with any officer, director, employee, agent, member, creditor, supplier, or of the\nCompany regarding the Evaluation Material or the business, operations, prospects, or finances of the Company except Piper Jaffray.\n2. Disclosure Required by Law. If you or your Agents or Lenders are required by law or requested or required by regulatory agencies to\ndisclose Evaluation Material, you shall provide the Company with prompt written notice thereof, so that the Company may seek a protective order or\nother appropriate remedy, as well as notice of the terms and circumstances surrounding such request or requirement. You and your Agents and\nLenders will use reasonable efforts to obtain and will not oppose action by the Company to obtain such protective order or other appropriate remedy.\nIf such protective order or other remedy is not obtained, then you will furnish only that portion of the Evaluation Material which you are advised by\nyour legal counsel is legally required and will exercise all reasonable efforts to obtain assurance that confidential treatment, if available, will be\naccorded such Evaluation Material. Without limiting the foregoing, you expressly confirm and agree that (i) no public disclosure with respect to any\ndiscussions or negotiations concerning a possible Transaction is now required by you by reason of securities laws or similar requirements related to\ngeneral disclosure and in the event you determine that such disclosure is required in the future, no such disclosures shall be made unless and until\nyou consult with the Company regarding the necessity and form of any such disclosure and (ii) except as required by applicable law, no government\nor regulatory filings shall be made with respect to a possible Transaction except pursuant to mutual agreement of the parties with respect to the\nmaking and the form and content of any such filings.\n3. Securities Laws. You acknowledge that you are aware, and that you will advise your Agents and Lenders who receive the Evaluation\nMaterial, that the United States securities laws prohibit any person who has material, non-public information concerning the matters which are\nthe subject of this letter agreement from purchasing or selling securities of the Company or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person including, without limitation, any of your Agents or Lenders, is\nlikely to purchase or sell such securities.\n4. Standstill Agreement. In consideration of the Company furnishing its Evaluation Material, you agree that, beginning on the date of this\nletter and ending on that date which is the earlier of (i) the eighteen month anniversary of the date hereof and (ii) the date on which the Company’s\nboard of directors publicly announces its approval of an acquisition, merger, asset sale or business combination between the Company and a third\nparty involving 50% or more of the Company’s voting securities or a material portion of the Company’s assets, you will not (and will not assist or\nencourage others to) in any manner, directly or indirectly, unless specifically requested in writing in advance by a majority of the Company’s board\nof directors, (i) acquire, or agree, offer or propose to acquire, directly or indirectly, from the Company or any other person, any material portion of\nthe Company’s business or assets (whether in a single transaction or in a series of related transactions), or any of Company’s voting securities or any\nright, warranty or option to acquire any of the foregoing, or propose to enter into, directly or indirectly, any merger or business combination\ninvolving the Company or any of the Company’s subsidiaries or to purchase, directly or indirectly, any material portion of the Company’s assets\n(whether in a single transaction or in a series of related transactions), except, in each event, pursuant to any proposal expressly solicited by the Chief\nExecutive Officer of the Company, and in such event such proposal will not be pursued, directly or indirectly, by you or any of your Affiliates (as\ndefined in Rule 12b-2 of the Exchange Act), if you are hereafter advised by the Company or Piper Jaffray that the Company is no longer interested in\npursuing such proposal; (ii) make any proposal or request to the Company or any of the Company’s officers or directors relating, directly or\nindirectly, to any modification or waiver of any provision of this paragraph; (iii) make or participate in, directly or indirectly, any “solicitation” of\n“proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) to vote or seek to advise or influence any person\nwith respect to the voting of any of the Company’s voting securities; (iv) form, join or in any way participate in a “group” (within the meaning of\nSection 13(d)(3) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any of the Company’s voting\nsecurities; (v) act alone or in concert with others to seek to control or influence the Company’s management or the Company’s board of directors;\n(vi) advise, assist or enter into any discussions, negotiations, arrangements or understandings with any other person with respect to any of the\nforegoing; or (vii) make any public statement or disclosure of any kind with respect to any matter addressed by this paragraph (unless required by\nlaw, and then only in accordance with Section 2 of this agreement) or take any other action which might reasonably be expected to result in any such\npublic disclosure.\n5. Termination of Discussions. You acknowledge and agree that the Company reserves the right, in its sole and absolute discretion, to reject\nany or all proposals and to terminate discussions and negotiations with you at any time and for any reason.\n6. Redelivery of Evaluation Material. If at any time the Company or you advise the other party that it does not wish to continue discussions\nwith respect to a proposed transaction between you and Company, or at any time upon the request of the Company or Piper Jaffray, you shall\npromptly redeliver to the Company all written material containing or reflecting any information contained in the Evaluation Material (including all\ncopies, extracts or other reproductions including those derived from electronic files and electronic correspondence) and agree to destroy all\ndocuments, memoranda, notes and other writings whatsoever (including all copies, extracts or other reproductions as well as all electronic files and\nelectronic correspondence), prepared by you or your Agents or Lenders based on the information contained in the Evaluation Material. Upon\nrequest, you agree to certify the same to the Company or Piper Jaffray in writing. Notwithstanding the return and/or destruction of the\nEvaluation Material, you and your Agents and Lenders will continue to be bound by the obligations of confidentiality and other obligations\nhereunder. However, notwithstanding this paragraph, you will be able to retain copies of the evaluation material for the purposes of satisfying\ninternal and regulatory compliance requirements.\n7. No Warranties of Accuracy or Completeness. You understand and acknowledge that none of the Company, Piper Jaffray nor any of their\naffiliates, agents or representatives makes any representation or warranty, either express or implied, as to the accuracy or completeness of the\nEvaluation Material or any other information provided by or on behalf of the Company. You agree that none of Piper Jaffray, the Company, nor any\nof their affiliates, agents or representatives shall have any liability to you or any of your Agents or Lenders resulting from the use of the Evaluation\nMaterial or such other information or any errors or omissions therefrom. Only those representations and warranties which are made in a final\ndefinitive agreement regarding a transaction, when, as and if executed and subject to such limitations and restrictions as may be specified therein,\nwill have any legal effect.\n8. Non-Exclusivity. You acknowledge and agree that until such time you and the Company have negotiated and executed a definitive\nagreement with respect to the Transaction, the Company is not under a legal obligation of any kind whatsoever with respect to a potential\nTransaction by virtue of this letter agreement or otherwise. Without limiting the foregoing, the Company may without prior notice or liability to you:\n(a) disclose Evaluation Material to and negotiate with any other prospective buyer and enter into a preliminary or definitive agreement with respect\nto the Transaction with any such buyer, (b) change the procedures relating to its consideration of the Transaction and (c) reject any proposals made\nby you or your Agents and Lenders with respect to the Transaction or terminate discussions and negotiations with respect to the Transaction with you\nor with any other person at any time and for any reason.\n9. No Solicitation of Employees. You agree that for a period of eighteen months (18) from the date hereof you will not directly or indirectly\nrecruit, solicit or hire any regional or district managers, corporate office employee, member of senior management of the Company (including store\nmanagers), or other employee of the Company identified to you or with whom you have had contact during your evaluation of the Transaction to\nbecome an employee of yours or any of your affiliates or otherwise interfere with any such employee’s employment relationship with the Company,\nunless the employee has been involuntarily terminated by the Company; provided however, that this prohibition shall not apply to any employee who\nfirst initiates contact with you related to employment in response to a general advertisement or solicitation program through communications made\navailable to the public generally.\n10. Equitable Remedies. It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter\nagreement and that the Company shall be entitled to equitable relief, including specific performance and injunction, as a remedy for any such breach\nwithout posting a bond or other security. Such remedies shall not be deemed to be the exclusive remedies for your breach of this letter agreement,\nbut shall be in addition to all other remedies available at law or equity to the Company.\n11. Governing Law; Jurisdiction; Miscellaneous. This letter agreement shall be governed by and construed in accordance with the internal\nlaws of the State of Minnesota, without giving effect to the principles of conflict of laws thereof. Your obligations of confidentiality contained in this\nletter agreement shall terminate on the second anniversary of the date of this agreement. This letter agreement may be amended, modified or waived\nonly in writing signed by the parties. No failure or delay in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor\nwill any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder. In case any provision of this letter agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the\nremaining provisions hereof shall not in any way be affected or impaired thereby. You agree that any dispute under this letter agreement shall be\ndetermined in the first instance by district courts (Federal or state) located within the State of Minnesota, and you hereby submit and consent to such\ncourts’ exercise of jurisdiction. The prevailing party in any suit to enforce this letter agreement shall be entitled to recover its reasonable costs and\nattorneys’ fees. A fax copy of this signed letter agreement shall be enforceable to the same extent as an original.\nUnder no circumstances should the Company or any of its officers, directors, employees, agents, shareholders, creditors or suppliers be\ncontacted directly. All contacts with the Company relating to the potential Transaction, the Evaluation Material or the business, operations,\nprospects, or finances of the Company shall be arranged through Piper Jaffray.\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this letter agreement, whereupon it will constitute\nour agreement with respect to the subject matter hereof.\nSincerely,\nPIPER JAFFRAY & CO.\nas Agent for and on behalf of the Company\nBy /s/ John T. Twichell\nMr. John T. Twichell\nManaging Director, Investment Banking\nBAY HARBOUR MANAGEMENT, L.C .\nBy /s/ Anthony C. Morrow\nIts VP and General Counsel	EX-99.E3 3 dex99e3.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(3)\n. LOGO\n345 California Street, Suite 2400 San Francisco, CA 94104\nTel: (800) 981-1203\nFax: (415) 277-1552\nTel: (415) 277-1500\nPiper Jaffray & Co. Since 1895. Member SIPC and NY SE.\nCONFIDENTIAL\nFebruary 19, 2008\nMr. Anthony Morro\nBay Harbour Management, L.C.\n885 Third Avenue, 34th Floor\nNew York, NY 10022\nDear Mr. Morro:\nWe have advised you that Piper Jaffray & Co. (“Piper Jaffray”) has been retained on behalf of BUCA, Inc. (the “Company”) to explore a possible\nacquisition transaction (“Transaction”) between the Company and Bay Harbour Management, L.C. (“you” or “your”). You have indicated an interest\nin a Transaction with the Company and agree to enter into this letter agreement to facilitate the delivery of certain information to you to assist you in\nthe evaluation of a Transaction.\n1. Evaluation Material\n(a) As a condition to furnishing you with such information you agree to treat confidentially such information and any other information, whether\nwritten or oral, relating to the Company that Piper Jaffray or any of the Company’s officers, employees, affiliates, representatives or agents furnish,\nwhether directly or indirectly, whether before or after the date hereof, to you or to which you are otherwise afforded access (collectively, the\n“Evaluation Material”). The term “Evaluation Material” shall also include any and all information which contains or otherwise reflects or is derived,\ndirectly or indirectly, therefrom, as well as any and all notes, analyses, compilations, studies or other documents prepared by any of (i) you, (ii) your\ndirectors, agents, representatives and employees and advisors retained and engaged by you in connection with the Transaction (collectively, your\n“Agents™), or (iii) your prospective debt financing sources who have been identified in writing to Piper Jaffray (collectively, your “Lenders”) which\ncontain or otherwise reflect or are derived, directly or indirectly, from such information. Notwithstanding the foregoing, the term Evaluation Material\ndoes not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by you or your Agents or\nLenders or (ii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Agents, provided that such\nsource is not known by you to be bound by any contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with\nrespect to such information and you and your Representatives have no reasonable basis for concluding that such source may be so bound.\n(b) You agree that the Evaluation Material shall be held and treated by you and your Agents and Lenders with the utmost and strictest\nconfidence, and shall not, without the prior written consent of the Company, be disclosed by you or your Agents or Lenders in any manner\nwhatsoever, in whole or in part, or used by you or your Agents or Lenders other than for the purpose of evaluating a Transaction. The Evaluation\nMaterial shall not, without the prior written consent of the Company, be disclosed to any person or entity other than your Agents or Lenders who\nneed to know such information for the purpose of evaluating a Transaction (and in those instances only to the extent justifiable by that need);\nprovided, however, that such Agents or Lenders must be informed by you of the confidential nature of the Evaluation Material and must agree to be\nbound by this letter agreement prior to any such disclosure. You agree to be responsible for any disclosure of Evaluation Material or any breach of\nthis letter agreement by your Agents or Lenders as if they were a party hereto. In addition, you will not, and you will direct your Agents and Lenders\nnot to, disclose that discussions or negotiations are taking place concerning a possible Transaction between you and the Company, or any of the\nterms, conditions or other information with respect to any such possible Transaction including the status thereof. With respect to any Evaluation\nMaterial disclosed to you that is the subject of a confidentiality agreement between the Company or Piper Jaffray and any third party, you agree to\ncomply with the terms of such confidentiality agreements, for the benefit of each of the Company and Piper Jaffray, as if you were a recipient of\nconfidential information thereunder and a signatory thereto, but only to the extent that such confidentiality agreements are more restrictive than the\nterms hereof.\n(c) Until the earliest of the execution of a definitive agreement, an acquisition of the Company by you or a third party, or eighteen months (18) from\nthe date of this agreement, you will not initiate or maintain contact with any officer, director, employee, agent, member, creditor, supplier, or of the\nCompany regarding the Evaluation Material or the business, operations, prospects, or finances of the Company except Piper Jaffray.\n2. Disclosure Required by Law. If you or your Agents or Lenders are required by law or requested or required by regulatory agencies to\ndisclose Evaluation Material, you shall provide the Company with prompt written notice thereof, so that the Company may seek a protective order or\nother appropriate remedy, as well as notice of the terms and circumstances surrounding such request or requirement. You and your Agents and\nLenders will use reasonable efforts to obtain and will not oppose action by the Company to obtain such protective order or other appropriate remedy.\nIf such protective order or other remedy is not obtained, then you will furnish only that portion of the Evaluation Material which you are advised by\nyour legal counsel is legally required and will exercise all reasonable efforts to obtain assurance that confidential treatment, if available, will be\naccorded such Evaluation Material. Without limiting the foregoing, you expressly confirm and agree that (i) no public disclosure with respect to any\ndiscussions or negotiations concerning a possible Transaction is now required by you by reason of securities laws or similar requirements related to\ngeneral disclosure and in the event you determine that such disclosure is required in the future, no such disclosures shall be made unless and until\nyou consult with the Company regarding the necessity and form of any such disclosure and (ii) except as required by applicable law, no government\nor regulatory filings shall be made with respect to a possible Transaction except pursuant to mutual agreement of the parties with respect to the\nmaking and the form and content of any such filings.\n3. Securities Laws. You acknowledge that you are aware, and that you will advise your Agents and Lenders who receive the Evaluation\nMaterial, that the United States securities laws prohibit any person who has material, non-public information concerning the matters which are\nthe subject of this letter agreement from purchasing or selling securities of the Company or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person including, without limitation, any of your Agents or Lenders, is\nlikely to purchase or sell such securities.\n4. Standstill Agreement. In consideration of the Company furnishing its Evaluation Material, you agree that, beginning on the date of this\nletter and ending on that date which is the earlier of (i) the eighteen month anniversary of the date hereof and (ii) the date on which the Company’s\nboard of directors publicly announces its approval of an acquisition, merger, asset sale or business combination between the Company and a third\nparty involving 50% or more of the Company’s voting securities or a material portion of the Company’s assets, you will not (and will not assist or\nencourage others to) in any manner, directly or indirectly, unless specifically requested in writing in advance by a majority of the Company’s board\nof directors, (i) acquire, or agree, offer or propose to acquire, directly or indirectly, from the Company or any other person, any material portion of\nthe Company’s business or assets (whether in a single transaction or in a series of related transactions), or any of Company’s voting securities or any\nright, warranty or option to acquire any of the foregoing, or propose to enter into, directly or indirectly, any merger or business combination\ninvolving the Company or any of the Company’s subsidiaries or to purchase, directly or indirectly, any material portion of the Company’s assets\n(whether in a single transaction or in a series of related transactions), except, in each event, pursuant to any proposal expressly solicited by the Chief\nExecutive Officer of the Company, and in such event such proposal will not be pursued, directly or indirectly, by you or any of your Affiliates (as\ndefined in Rule 12b-2 of the Exchange Act), if you are hereafter advised by the Company or Piper Jaffray that the Company is no longer interested in\npursuing such proposal; (ii) make any proposal or request to the Company or any of the Company’s officers or directors relating, directly or\nindirectly, to any modification or waiver of any provision of this paragraph; (iii) make or participate in, directly or indirectly, any “solicitation” of\n“proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) to vote or seek to advise or influence any person\nwith respect to the voting of any of the Company’s voting securities; (iv) form, join or in any way participate in a “group” (within the meaning of\nSection 13(d)(3) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any of the Company’s voting\nsecurities; (v) act alone or in concert with others to seek to control or influence the Company’s management or the Company’s board of directors;\n(vi) advise, assist or enter into any discussions, negotiations, arrangements or understandings with any other person with respect to any of the\nforegoing; or (vii) make any public statement or disclosure of any kind with respect to any matter addressed by this paragraph (unless required by\nlaw, and then only in accordance with Section 2 of this agreement) or take any other action which might reasonably be expected to result in any such\npublic disclosure.\n5. Termination of Discussions. You acknowledge and agree that the Company reserves the right, in its sole and absolute discretion, to reject\nany or all proposals and to terminate discussions and negotiations with you at any time and for any reason.\n6. Redelivery of Evaluation Material. If at any time the Company or you advise the other party that it does not wish to continue discussions\nwith respect to a proposed transaction between you and Company, or at any time upon the request of the Company or Piper Jaffray, you shall\npromptly redeliver to the Company all written material containing or reflecting any information contained in the Evaluation Material (including all\ncopies, extracts or other reproductions including those derived from electronic files and electronic correspondence) and agree to destroy all\ndocuments, memoranda, notes and other writings whatsoever (including all copies, extracts or other reproductions as well as all electronic files and\nelectronic correspondence), prepared by you or your Agents or Lenders based on the information contained in the Evaluation Material. Upon\nrequest, you agree to certify the same to the Company or Piper Jaffray in writing. Notwithstanding the return and/or destruction of the\nEvaluation Material, you and your Agents and Lenders will continue to be bound by the obligations of confidentiality and other obligations\nhereunder. However, notwithstanding this paragraph, you will be able to retain copies of the evaluation material for the purposes of satisfying\ninternal and regulatory compliance requirements.\n7. No Warranties of Accuracy or Completeness. You understand and acknowledge that none of the Company, Piper Jaffray nor any of their\naffiliates, agents or representatives makes any representation or warranty, either express or implied, as to the accuracy or completeness of the\nEvaluation Material or any other information provided by or on behalf of the Company. You agree that none of Piper Jaffray, the Company, nor any\nof their affiliates, agents or representatives shall have any liability to you or any of your Agents or Lenders resulting from the use of the Evaluation\nMaterial or such other information or any errors or omissions therefrom. Only those representations and warranties which are made in a final\ndefinitive agreement regarding a transaction, when, as and if executed and subject to such limitations and restrictions as may be specified therein,\nwill have any legal effect.\n8. Non-Exclusivity. You acknowledge and agree that until such time you and the Company have negotiated and executed a definitive\nagreement with respect to the Transaction, the Company is not under a legal obligation of any kind whatsoever with respect to a potential\nTransaction by virtue of this letter agreement or otherwise. Without limiting the foregoing, the Company may without prior notice or liability to you:\n(a) disclose Evaluation Material to and negotiate with any other prospective buyer and enter into a preliminary or definitive agreement with respect\nto the Transaction with any such buyer, (b) change the procedures relating to its consideration of the Transaction and (c) reject any proposals made\nby you or your Agents and Lenders with respect to the Transaction or terminate discussions and negotiations with respect to the Transaction with you\nor with any other person at any time and for any reason.\n9. No Solicitation of Employees. You agree that for a period of eighteen months (18) from the date hereof you will not directly or indirectly\nrecruit, solicit or hire any regional or district managers, corporate office employee, member of senior management of the Company (including store\nmanagers), or other employee of the Company identified to you or with whom you have had contact during your evaluation of the Transaction to\nbecome an employee of yours or any of your affiliates or otherwise interfere with any such employee’s employment relationship with the Company,\nunless the employee has been involuntarily terminated by the Company; provided however, that this prohibition shall not apply to any employee who\nfirst initiates contact with you related to employment in response to a general advertisement or solicitation program through communications made\navailable to the public generally.\n10. Equitable Remedies. It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter\nagreement and that the Company shall be entitled to equitable relief, including specific performance and injunction, as a remedy for any such breach\nwithout posting a bond or other security. Such remedies shall not be deemed to be the exclusive remedies for your breach of this letter agreement,\nbut shall be in addition to all other remedies available at law or equity to the Company.\n11. Governing Law; Jurisdiction; Miscellaneous. This letter agreement shall be governed by and construed in accordance with the internal\nlaws of the State of Minnesota, without giving effect to the principles of conflict of laws thereof. Your obligations of confidentiality contained in this\nletter agreement shall terminate on the second anniversary of the date of this agreement. This letter agreement may be amended, modified or waived\nonly in writing signed by the parties. No failure or delay in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor\nwill any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder. In case any provision of this letter agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the\nremaining provisions hereof shall not in any way be affected or impaired thereby. You agree that any dispute under this letter agreement shall be\ndetermined in the first instance by district courts (Federal or state) located within the State of Minnesota, and you hereby submit and consent to such\ncourts’ exercise of jurisdiction. The prevailing party in any suit to enforce this letter agreement shall be entitled to recover its reasonable costs and\nattorneys’ fees. A fax copy of this signed letter agreement shall be enforceable to the same extent as an original.\nUnder no circumstances should the Company or any of its officers, directors, employees, agents, shareholders, creditors or suppliers be\ncontacted directly. All contacts with the Company relating to the potential Transaction, the Evaluation Material or the business, operations,\nprospects, or finances of the Company shall be arranged through Piper Jaffray.\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this letter agreement, whereupon it will constitute\nour agreement with respect to the subject matter hereof.\nSincerely,\nPIPER JAFFRAY & CO.\nas Agent for and on behalf of the Company\nBy /s/ John T. Twichell\nMr. John T. Twichell\nManaging Director, Investment Banking\nBAY HARBOUR MANAGEMENT, L.C.\nBy /s/ Anthony C. Morrow\nIts VP and General Counsel	EX-99.E3 3 dex99e3.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(3)\nLOGO\n345 California Street, Suite 2400 San Francisco, CA 94104\nTel: (800) 981-1203\nFax: (415) 277-1552\nTel: (415) 277-1500\nPiper Jaffray & Co. Since 1895. Member SIPC and NYSE.\nCONFIDENTIAL\nFebruary 19, 2008\nMr. Anthony Morro\nBay Harbour Management, L.C.\n885 Third Avenue, 34th Floor\nNew York, NY 10022\nDear Mr. Morro:\nWe have advised you that Piper Jaffray & Co. ("Piper Jaffray") has been retained on behalf of BUCA, Inc. (the "Company") to explore a possible\nacquisition transaction ("Transaction") between the Company and Bay Harbour Management, L.C. ("you" or "your"). You have indicated an interest\nin a Transaction with the Company and agree to enter into this letter agreement to facilitate the delivery of certain information to you to assist you in\nthe evaluation of a Transaction.\n1. Evaluation Material\n(a) As a condition to furnishing you with such information you agree to treat confidentially such information and any other information, whether\nwritten or oral, relating to the Company that Piper Jaffray or any of the Company's officers, employees, affiliates, representatives or agents furnish,\nwhether directly or indirectly, whether before or after the date hereof, to you or to which you are otherwise afforded access (collectively, the\n"Evaluation Material"). The term "Evaluation Material" shall also include any and all information which contains or otherwise reflects or is derived,\ndirectly\nor\nindirectly, therefrom, as well as any and all notes, analyses, compilations, studies or other documents prepared by any of (i) you, (ii) your\ndirectors, agents, representatives and employees and advisors retained and engaged by you in connection with the Transaction (collectively, your\n"Agents"), or (iii) your prospective debt financing sources who have been identified in writing to Piper Jaffray (collectively, your "Lenders") which\ncontain or otherwise reflect or are derived, directly or indirectly, from such information. Notwithstanding the foregoing, the term Evaluation Material\ndoes not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by you or your Agents or\nLenders or (ii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Agents, provided that such\nsource is not known by you to be bound by any contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with\nrespect to such information and you and your Representatives have no reasonable basis for concluding that such source may be so bound.\n(b) You agree that the Evaluation Material shall be held and treated by you and your Agents and Lenders with the utmost and strictest\nconfidence, and shall not, without the prior written consent of the Company, be disclosed by you or your Agents or Lenders in any manner\nwhatsoever, in whole or in part, or used by you or your Agents or Lenders other than for the purpose of evaluating a Transaction. The Evaluation\nMaterial shall not, without the prior written consent of the Company, be disclosed to any person or entity other than your Agents or Lenders\nwho\nneed to know such information for the purpose of evaluating a Transaction (and in those instances only to the extent justifiable by that need);\nprovided, however, that such Agents or Lenders must be informed by you of the confidential nature of the Evaluation Material and must agree to\nbe\nbound by this letter agreement prior to any such disclosure. You agree to be responsible for any disclosure of Evaluation Material or any breach of\nthis letter agreement by your Agents or Lenders as if they were a party hereto. In addition, you will not, and you will direct your Agents and Lenders\nnot to, disclose that discussions or negotiations are taking place concerning a possible Transaction between you and the Company, or any of the\nterms, conditions or other information with respect to any such possible Transaction including the status thereof. With respect to any Evaluation\nMaterial disclosed to you that is the subject of a confidentiality agreement between the Company or Piper Jaffray and any third party, you agree to\ncomply with the terms of such confidentiality agreements, for the benefit of each of the Company and Piper Jaffray, as if you were a recipient of\nconfidential information thereunder and a signatory thereto, but only to the extent that such confidentiality agreements are more restrictive than the\nterms hereof.\n(c) Until the earliest of the execution of a definitive agreement, an acquisition of the Company by you or a third party, or eighteen months (18) from\nthe date of this agreement, you will not initiate or maintain contact with any officer, director, employee, agent, member, creditor, supplier, or of\nthe\nCompany regarding the Evaluation Material or the business, operations, prospects, or finances of the Company except Piper Jaffray.\n2. Disclosure Required by Law. If you or your Agents or Lenders are required by law or requested or required by regulatory agencies to\ndisclose Evaluation Material, you shall provide the Company with prompt written notice thereof, so that the Company may seek a protective order or\nother appropriate remedy, as well as notice of the terms and circumstances surrounding such request or requirement. You and your Agents and\nLenders will use reasonable efforts to obtain and will not oppose action by the Company to obtain such protective order or other appropriate remedy.\nIf such protective order or other remedy is not obtained, then you will furnish only that portion of the Evaluation Material which you are advised\nby\nyour legal counsel is legally required and will exercise all reasonable efforts to obtain assurance that confidential treatment, if available, will be\naccorded such Evaluation Material. Without limiting the foregoing, you expressly confirm and agree that (i) no public disclosure with respect to any\ndiscussions or negotiations concerning a possible Transaction is now required by you by reason of securities laws or similar requirements related\nto\ngeneral disclosure and in the event you determine that such disclosure is required in the future, no such disclosures shall be made unless and until\nyou consult with the Company regarding the necessity and form of any such disclosure and (ii) except as required by applicable law, no government\nor regulatory filings shall be made with respect to a possible Transaction except pursuant to mutual agreement of the parties with respect to the\nmaking and the form and content of any such filings.\n3. Securities Laws. You acknowledge that you are aware, and that you will advise your Agents and Lenders who receive the Evaluation\nMaterial, that the United States securities laws prohibit any person who has material, non-public information concerning the matters which are\nthe subject of this letter agreement from purchasing or selling securities of the Company or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person including, without limitation, any of your Agents or Lenders, is\nlikely to purchase or sell such securities.\n4. Standstill Agreement. In consideration of the Company furnishing its Evaluation Material, you agree that, beginning on the date of this\nletter and ending on that date which is the earlier of (i) the eighteen month anniversary of the date hereof and (ii) the date\non\nwhich\nthe\nCompany's\nboard of directors publicly announces its approval of an acquisition, merger, asset sale or business combination between the Company and a third\nparty involving 50% or more of the Company's voting securities or a material portion of the Company's assets, you will not (and will not assist\nor\nencourage others to) in any manner, directly or indirectly, unless specifically requested in writing in advance by a majority of the Company's board\nof directors, (i) acquire, or agree, offer or propose to acquire, directly or indirectly, from the Company or any other person, any material portion of\nthe Company's business or assets (whether in a single transaction or in a series of related transactions), or any of Company's voting securities or any\nright, warranty or option to acquire any of the foregoing, or propose to enter into, directly or indirectly, any merger or business combination\ninvolving the Company or any of the Company's subsidiaries or to purchase, directly or indirectly, any material portion of the Company's assets\n(whether in a single transaction or in a series of related transactions), except, in each event, pursuant to any proposal expressly solicited by the Chief\nExecutive Officer of the Company, and in such event such proposal will not be pursued, directly or indirectly, by you or any of your Affiliates\n(as\ndefined in Rule 12b-2 of the Exchange Act), if you are hereafter advised by the Company or Piper Jaffray that the Company is no longer interested in\npursuing such proposal; (ii) make any proposal or request to the Company or any of the Company's officers or directors relating, directly or\nindirectly, to any modification or waiver of any provision of this paragraph; (iii) make or participate in, directly or indirectly, any "solicitation"\nof\n"proxies" (as those terms are used in the proxy rules of the Securities and Exchange Commission) to vote or seek to advise or influence any person\nwith respect to the voting of any of the Company's voting securities; (iv) form, join or in any way participate in a "group" (within the meaning of\nSection 13(d)(3) under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) with respect to any of the Company's voting\nsecurities; (v) act alone or in concert with others to seek to control or influence the Company's management or the Company's board of directors;\n(vi) advise, assist or enter into any discussions, negotiations, arrangements or understandings with any other person with respect to any of the\nforegoing; or (vii) make any public statement or disclosure of any kind with respect to any matter addressed by this paragraph (unless required by\nlaw, and then only in accordance with Section 2 of this agreement) or take any other action which might reasonably be expected to result in any\nsuch\npublic disclosure.\n5. Termination of Discussions. You acknowledge and agree that the Company reserves the right, in its sole and absolute discretion, to reject\nany or all proposals and to terminate discussions and negotiations with you at any time and for any reason.\n6. Redelivery of Evaluation Material. If at any time the Company or you advise the other party that it does not wish to continue discussions\nwith respect to a proposed transaction between you and Company, or at any time upon the request of the Company or Piper Jaffray, you shall\npromptly redeliver to the Company all written material containing or reflecting any information contained in the Evaluation Material (including all\ncopies, extracts or other reproductions including those derived from electronic files and electronic correspondence) and agree to destroy all\ndocuments, memoranda, notes and other writings whatsoever (including all copies, extracts or other reproductions as well as all electronic files\nand\nelectronic correspondence), prepared by you or your Agents or Lenders based on the information contained in the Evaluation Material. Upon\nrequest, you agree to certify the same to the Company or Piper Jaffray in writing. Notwithstanding the return and/or destruction of the\nEvaluation Material, you and your Agents and Lenders will continue to be bound by the obligations of confidentiality and other obligations\nhereunder. However, notwithstanding this paragraph, you will be able to retain copies of the evaluation material for the purposes of satisfying\ninternal and regulatory compliance requirements.\n7. No Warranties of Accuracy or Completeness. You understand and acknowledge that none of the Company, Piper Jaffray nor any of their\naffiliates, agents or representatives makes any representation or warranty, either express or implied, as to the accuracy or completeness of the\nEvaluation Material or any other information provided by or on behalf of the Company. You agree that none of Piper Jaffray, the Company, nor any\nof their affiliates, agents or representatives shall have any liability to you or any of your Agents or Lenders resulting from the use of the Evaluation\nMaterial or such other information or any errors or omissions therefrom. Only those representations and warranties which are made in a final\ndefinitive agreement regarding a transaction, when, as and if executed and subject to such limitations and restrictions as may be specified therein,\nwill have any legal effect.\n8. Non-Exclusivity. You acknowledge and agree that until such time you and the Company have negotiated and executed a definitive\nagreement with respect to the Transaction, the Company is not under a legal obligation of any kind whatsoever with respect to a potential\nTransaction by virtue of this letter agreement or otherwise. Without limiting the foregoing, the Company may without prior notice or liability to you:\n(a) disclose Evaluation Material to and negotiate with any other prospective buyer and enter into a preliminary or definitive agreement with respect\nto the Transaction with any such buyer, (b) change the procedures relating to its consideration of the Transaction and (c) reject any proposals made\nby you or your Agents and Lenders with respect to the Transaction or terminate discussions and negotiations with respect to the Transaction with you\nor with any other person at any time and for any reason.\n9.\nNo Solicitation of Employees. You agree that for a period of eighteen months (18) from the date hereof you will not directly or indirectly\nrecruit, solicit or hire any regional or district managers, corporate office employee, member of senior management of the Company (including store\nmanagers), or other employee of the Company identified to you or with whom you have had contact during your evaluation of the Transaction to\nbecome an employee of yours or any of your affiliates or otherwise interfere with any such employee's employment relationship with the Company,\nunless the employee has been involuntarily terminated by the Company; provided however, that this prohibition shall not apply to any employee who\nfirst initiates contact with you related to employment in response to a general advertisement or solicitation program through communications made\navailable to the public generally.\n10. Equitable Remedies. It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter\nagreement and that the Company shall be entitled to equitable relief, including specific performance and injunction, as a remedy for any such breach\nwithout posting a bond or other security. Such remedies shall not be deemed to be the exclusive remedies for your breach of this letter agreement,\nbut shall be in addition to all other remedies available at law or equity to the Company.\n11. Governing Law; Jurisdiction; Miscellaneous. This letter agreement shall be governed by and construed in accordance with the internal\nlaws of the State of Minnesota, without giving effect to the principles of conflict of laws thereof. Your obligations of confidentiality contained in this\nletter agreement shall terminate on the second anniversary of the date of this agreement. This letter agreement may be amended, modified or waived\nonly in writing signed by the parties. No failure or delay in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor\nwill any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder. In case any provision of this letter agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the\nremaining provisions hereof shall not in any way be affected or impaired thereby. You agree that any dispute under this letter agreement shall be\ndetermined in the first instance by district courts (Federal or state) located within the State of Minnesota, and you hereby submit and consent to such\ncourts' exercise of jurisdiction The prevailing party in any suit to enforce this letter agreement shall be entitled to recover its reasonable costs and\nattorneys' fees. A fax copy of this signed letter agreement shall be enforceable to the same extent as an original.\nUnder no circumstances should the Company or any of its officers, directors, employees, agents, shareholders, creditors or suppliers be\ncontacted directly. All contacts with the Company relating to the potential Transaction, the Evaluation Material or the business, operations,\nprospects, or finances of the Company shall be arranged through Piper Jaffray.\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this letter agreement, whereupon it will constitute\nour agreement with respect to the subject matter hereof.\nSincerely,\nPIPER JAFFRAY & CO.\nas Agent for and on behalf of the Company\nBy /s/ John T. Twichell\nMr. John T. Twichell\nManaging Director, Investment Banking\nBAY HARBOUR MANAGEMENT, L.C.\nBy /s/ Anthony C. Morrow\nIts\nVP and General Counsel	EX-99.E3 3 dex99e3.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(3)\nLOGO\n345 California Street, Suite 2400 San Francisco, CA 94104\nTel: (800) 981-1203\nFax: (415) 277-1552\nTel: (415) 277-1500\nPiper Jaffray & Co. Since 1895. Member SIPC and NYSE.\nCONFIDENTIAL\nFebruary 19, 2008\nMr. Anthony Morro\nBay Harbour Management, L.C.\n885 Third Avenue, 34th Floor\nNew York, NY 10022\nDear Mr. Morro:\nWe have advised you that Piper Jaffray & Co. (“Piper Jaffray”) has been retained on behalf of BUCA, Inc. (the “Company”) to explore a possible\nacquisition transaction (“Transaction”) between the Company and Bay Harbour Management, L.C. (“you” or “your”). You have indicated an interest\nin a Transaction with the Company and agree to enter into this letter agreement to facilitate the delivery of certain information to you to assist you in\nthe evaluation of a Transaction.\n1. Evaluation Material\n(a) As a condition to furnishing you with such information you agree to treat confidentially such information and any other information, whether\nwritten or oral, relating to the Company that Piper Jaffray or any of the Company’s officers, employees, affiliates, representatives or agents furnish,\nwhether directly or indirectly, whether before or after the date hereof, to you or to which you are otherwise afforded access (collectively, the\n“Evaluation Material”). The term “Evaluation Material” shall also include any and all information which contains or otherwise reflects or is derived,\ndirectly or indirectly, therefrom, as well as any and all notes, analyses, compilations, studies or other documents prepared by any of (i) you, (ii) your\ndirectors, agents, representatives and employees and advisors retained and engaged by you in connection with the Transaction (collectively, your\n“Agents”), or (iii) your prospective debt financing sources who have been identified in writing to Piper Jaffray (collectively, your “Lenders”) which\ncontain or otherwise reflect or are derived, directly or indirectly, from such information. Notwithstanding the foregoing, the term Evaluation Material\ndoes not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by you or your Agents or\nLenders or (ii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Agents, provided that such\nsource is not known by you to be bound by any contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with\nrespect to such information and you and your Representatives have no reasonable basis for concluding that such source may be so bound.\n(b) You agree that the Evaluation Material shall be held and treated by you and your Agents and Lenders with the utmost and strictest\nconfidence, and shall not, without the prior written consent of the Company, be disclosed by you or your Agents or Lenders in any manner\nwhatsoever, in whole or in part, or used by you or your Agents or Lenders other than for the purpose of evaluating a Transaction. The Evaluation\nMaterial shall not, without the prior written consent of the Company, be disclosed to any person or entity other than your Agents or Lenders who\nneed to know such information for the purpose of evaluating a Transaction (and in those instances only to the extent justifiable by that need);\nprovided, however, that such Agents or Lenders must be informed by you of the confidential nature of the Evaluation Material and must agree to be\nbound by this letter agreement prior to any such disclosure. You agree to be responsible for any disclosure of Evaluation Material or any breach of\nthis letter agreement by your Agents or Lenders as if they were a party hereto. In addition, you will not, and you will direct your Agents and Lenders\nnot to, disclose that discussions or negotiations are taking place concerning a possible Transaction between you and the Company, or any of the\nterms, conditions or other information with respect to any such possible Transaction including the status thereof. With respect to any Evaluation\nMaterial disclosed to you that is the subject of a confidentiality agreement between the Company or Piper Jaffray and any third party, you agree to\ncomply with the terms of such confidentiality agreements, for the benefit of each of the Company and Piper Jaffray, as if you were a recipient of\nconfidential information thereunder and a signatory thereto, but only to the extent that such confidentiality agreements are more restrictive than the\nterms hereof.\n(c) Until the earliest of the execution of a definitive agreement, an acquisition of the Company by you or a third party, or eighteen months (18) from\nthe date of this agreement, you will not initiate or maintain contact with any officer, director, employee, agent, member, creditor, supplier, or of the\nCompany regarding the Evaluation Material or the business, operations, prospects, or finances of the Company except Piper Jaffray.\n2. Disclosure Required by Law. If you or your Agents or Lenders are required by law or requested or required by regulatory agencies to\ndisclose Evaluation Material, you shall provide the Company with prompt written notice thereof, so that the Company may seek a protective order or\nother appropriate remedy, as well as notice of the terms and circumstances surrounding such request or requirement. You and your Agents and\nLenders will use reasonable efforts to obtain and will not oppose action by the Company to obtain such protective order or other appropriate remedy.\nIf such protective order or other remedy is not obtained, then you will furnish only that portion of the Evaluation Material which you are advised by\nyour legal counsel is legally required and will exercise all reasonable efforts to obtain assurance that confidential treatment, if available, will be\naccorded such Evaluation Material. Without limiting the foregoing, you expressly confirm and agree that (i) no public disclosure with respect to any\ndiscussions or negotiations concerning a possible Transaction is now required by you by reason of securities laws or similar requirements related to\ngeneral disclosure and in the event you determine that such disclosure is required in the future, no such disclosures shall be made unless and until\nyou consult with the Company regarding the necessity and form of any such disclosure and (ii) except as required by applicable law, no government\nor regulatory filings shall be made with respect to a possible Transaction except pursuant to mutual agreement of the parties with respect to the\nmaking and the form and content of any such filings.\n3. Securities Laws. You acknowledge that you are aware, and that you will advise your Agents and Lenders who receive the Evaluation\nMaterial, that the United States securities laws prohibit any person who has material, non-public information concerning the matters which are\nthe subject of this letter agreement from purchasing or selling securities of the Company or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person including, without limitation, any of your Agents or Lenders, is\nlikely to purchase or sell such securities.\n4. Standstill Agreement. In consideration of the Company furnishing its Evaluation Material, you agree that, beginning on the date of this\nletter and ending on that date which is the earlier of (i) the eighteen month anniversary of the date hereof and (ii) the date on which the Company’s\nboard of directors publicly announces its approval of an acquisition, merger, asset sale or business combination between the Company and a third\nparty involving 50% or more of the Company’s voting securities or a material portion of the Company’s assets, you will not (and will not assist or\nencourage others to) in any manner, directly or indirectly, unless specifically requested in writing in advance by a majority of the Company’s board\nof directors, (i) acquire, or agree, offer or propose to acquire, directly or indirectly, from the Company or any other person, any material portion of\nthe Company’s business or assets (whether in a single transaction or in a series of related transactions), or any of Company’s voting securities or any\nright, warranty or option to acquire any of the foregoing, or propose to enter into, directly or indirectly, any merger or business combination\ninvolving the Company or any of the Company’s subsidiaries or to purchase, directly or indirectly, any material portion of the Company’s assets\n(whether in a single transaction or in a series of related transactions), except, in each event, pursuant to any proposal expressly solicited by the Chief\nExecutive Officer of the Company, and in such event such proposal will not be pursued, directly or indirectly, by you or any of your Affiliates (as\ndefined in Rule 12b-2 of the Exchange Act), if you are hereafter advised by the Company or Piper Jaffray that the Company is no longer interested in\npursuing such proposal; (ii) make any proposal or request to the Company or any of the Company’s officers or directors relating, directly or\nindirectly, to any modification or waiver of any provision of this paragraph; (iii) make or participate in, directly or indirectly, any “solicitation” of\n“proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) to vote or seek to advise or influence any person\nwith respect to the voting of any of the Company’s voting securities; (iv) form, join or in any way participate in a “group” (within the meaning of\nSection 13(d)(3) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any of the Company’s voting\nsecurities; (v) act alone or in concert with others to seek to control or influence the Company’s management or the Company’s board of directors;\n(vi) advise, assist or enter into any discussions, negotiations, arrangements or understandings with any other person with respect to any of the\nforegoing; or (vii) make any public statement or disclosure of any kind with respect to any matter addressed by this paragraph (unless required by\nlaw, and then only in accordance with Section 2 of this agreement) or take any other action which might reasonably be expected to result in any such\npublic disclosure.\n5. Termination of Discussions. You acknowledge and agree that the Company reserves the right, in its sole and absolute discretion, to reject\nany or all proposals and to terminate discussions and negotiations with you at any time and for any reason.\n6. Redelivery of Evaluation Material. If at any time the Company or you advise the other party that it does not wish to continue discussions\nwith respect to a proposed transaction between you and Company, or at any time upon the request of the Company or Piper Jaffray, you shall\npromptly redeliver to the Company all written material containing or reflecting any information contained in the Evaluation Material (including all\ncopies, extracts or other reproductions including those derived from electronic files and electronic correspondence) and agree to destroy all\ndocuments, memoranda, notes and other writings whatsoever (including all copies, extracts or other reproductions as well as all electronic files and\nelectronic correspondence), prepared by you or your Agents or Lenders based on the information contained in the Evaluation Material. Upon\nrequest, you agree to certify the same to the Company or Piper Jaffray in writing. Notwithstanding the return and/or destruction of the\nEvaluation Material, you and your Agents and Lenders will continue to be bound by the obligations of confidentiality and other obligations\nhereunder. However, notwithstanding this paragraph, you will be able to retain copies of the evaluation material for the purposes of satisfying\ninternal and regulatory compliance requirements.\n7. No Warranties of Accuracy or Completeness. You understand and acknowledge that none of the Company, Piper Jaffray nor any of their\naffiliates, agents or representatives makes any representation or warranty, either express or implied, as to the accuracy or completeness of the\nEvaluation Material or any other information provided by or on behalf of the Company. You agree that none of Piper Jaffray, the Company, nor any\nof their affiliates, agents or representatives shall have any liability to you or any of your Agents or Lenders resulting from the use of the Evaluation\nMaterial or such other information or any errors or omissions therefrom. Only those representations and warranties which are made in a final\ndefinitive agreement regarding a transaction, when, as and if executed and subject to such limitations and restrictions as may be specified therein,\nwill have any legal effect.\n8. Non-Exclusivity. You acknowledge and agree that until such time you and the Company have negotiated and executed a definitive\nagreement with respect to the Transaction, the Company is not under a legal obligation of any kind whatsoever with respect to a potential\nTransaction by virtue of this letter agreement or otherwise. Without limiting the foregoing, the Company may without prior notice or liability to you:\n(a) disclose Evaluation Material to and negotiate with any other prospective buyer and enter into a preliminary or definitive agreement with respect\nto the Transaction with any such buyer, (b) change the procedures relating to its consideration of the Transaction and (c) reject any proposals made\nby you or your Agents and Lenders with respect to the Transaction or terminate discussions and negotiations with respect to the Transaction with you\nor with any other person at any time and for any reason.\n9. No Solicitation of Employees. You agree that for a period of eighteen months (18) from the date hereof you will not directly or indirectly\nrecruit, solicit or hire any regional or district managers, corporate office employee, member of senior management of the Company (including store\nmanagers), or other employee of the Company identified to you or with whom you have had contact during your evaluation of the Transaction to\nbecome an employee of yours or any of your affiliates or otherwise interfere with any such employee’s employment relationship with the Company,\nunless the employee has been involuntarily terminated by the Company; provided however, that this prohibition shall not apply to any employee who\nfirst initiates contact with you related to employment in response to a general advertisement or solicitation program through communications made\navailable to the public generally.\n10. Equitable Remedies. It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter\nagreement and that the Company shall be entitled to equitable relief, including specific performance and injunction, as a remedy for any such breach\nwithout posting a bond or other security. Such remedies shall not be deemed to be the exclusive remedies for your breach of this letter agreement,\nbut shall be in addition to all other remedies available at law or equity to the Company.\n11. Governing Law; Jurisdiction; Miscellaneous. This letter agreement shall be governed by and construed in accordance with the internal\nlaws of the State of Minnesota, without giving effect to the principles of conflict of laws thereof. Your obligations of confidentiality contained in this\nletter agreement shall terminate on the second anniversary of the date of this agreement. This letter agreement may be amended, modified or waived\nonly in writing signed by the parties. No failure or delay in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor\nwill any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder. In case any provision of this letter agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the\nremaining provisions hereof shall not in any way be affected or impaired thereby. You agree that any dispute under this letter agreement shall be\ndetermined in the first instance by district courts (Federal or state) located within the State of Minnesota, and you hereby submit and consent to such\ncourts’ exercise of jurisdiction. The prevailing party in any suit to enforce this letter agreement shall be entitled to recover its reasonable costs and\nattorneys’ fees. A fax copy of this signed letter agreement shall be enforceable to the same extent as an original.\nUnder no circumstances should the Company or any of its officers, directors, employees, agents, shareholders, creditors or suppliers be\ncontacted directly. All contacts with the Company relating to the potential Transaction, the Evaluation Material or the business, operations,\nprospects, or finances of the Company shall be arranged through Piper Jaffray.\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this letter agreement, whereupon it will constitute\nour agreement with respect to the subject matter hereof.\nSincerely,\nPIPER JAFFRAY & CO.\nas Agent for and on behalf of the Company\nBy /s/ John T. Twichell\nMr. John T. Twichell\nManaging Director, Investment Banking\nBAY HARBOUR MANAGEMENT, L.C .\nBy /s/ Anthony C. Morrow\nIts VP and General Counsel
+b4e221e3ca291a3c049038a4ae36eaaa.pdf	effective_date jurisdiction party term	EXHIBIT B\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this "Agreement"), is made and entered into as of the date on which it is fully executed,\nas indicated by signatures below, by and among Sunshine Financial, Inc. (the "Company"), The Stilwell Group (composed of Stilwell Value\nPartners VII, L.P., Stilwell Activist Fund, L.P., Stilwell Activist Investments, L.P., Stilwell Partners, L.P., and Stilwell Value LLC, and their\nemployees and representatives), and Corissa J. Briglia (the "Director").\nWHEREAS, the Director is a member of the Board of Directors of the Company and its wholly owned subsidiary, Sunshine Savings\nBank (the "Bank");\nWHEREAS, the Company, The Stilwell Group and the Director have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree\nas follows:\n1. In connection with the Director serving on the Boards of Directors of the Company and the Bank, the Director and other\nCompany employees, directors, and agents may divulge nonpublic information concerning the Company and its subsidiaries to The Stilwell\nGroup and such information may be shared among The Stilwell Group's employees, representatives, and agents who have a need to know such\ninformation. The Stilwell Group expressly agrees to maintain all nonpublic information concerning the Company and its subsidiaries in\nconfidence. The Stilwell Group expressly acknowledges that federal and state securities laws may prohibit a person from purchasing or selling\nsecurities of a company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable\nthat such other person is likely to purchase or sell such securities, while the first-mentioned person is in possession of material nonpublic\ninformation about such company. The Stilwell Group agrees to comply with the Company's insider trading policies and procedures, as in effect\nfrom time to time, to the same extent as if it were a director of the Company. To the extent any nonpublic information concerning the Company\nand its subsidiaries received by The Stilwell Group is material, this Agreement is intended to satisfy the confidentiality agreement exclusion of\nRegulation FD of the U.S . Securities and Exchange Commission (the "SEC") set forth in Rule 100(b)(2)(ii) of Regulation FD of the SEC.\n2. Each of The Stilwell Group and the Director represents and warrants to the Company that this Agreement has been duly and\nvalidly authorized (in the case of the entity members of The Stilwell Group), executed and delivered by them, and is a valid and binding\nagreement enforceable against them in accordance with its terms.\n3. The Director hereby further confirms to the Company that no event has occurred with respect to the Director that would require\ndisclosure in a document filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act\nof 1934, as amended, under Item 401(f) or Item 404(a) of SEC Regulation S-K.\n4. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic information of\nthe Company and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and\nthat, in addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable relief as a\nremedy for such breach, and agrees that in conjunction therewith the Company shall not be required to post any bond.\n5. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and\nsupersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not\nreferred to herein.\n6. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Maryland, without regard to\nchoice of law principles that may otherwise compel the application of the laws of any\nother jurisdiction. Each of the parties hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in the State of\nMaryland to resolve any dispute arising from this Agreement and waives any defense of inconvenient or improper forum.\n7. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion\nthereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8. All representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Agreement.\n9. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written\nagreement executed by all of the parties hereto.\n10. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one\nand the same agreement.\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as of as of the\nday and year indicated below.\nTHE STILWELL GROUP\nBy:\n_______________________\nMegan Parisi\nCo-Managing Member, Stilwell Value LLC\nDated: February ___, 2016\nDIRECTOR\n_____________________\nCorissa J. Briglia\nDate: February ___, 2016\nSUNSHINE FINANCIAL, INC.\nBy:\n________________________________\nLouis O. Davis\nPresident & CEO\nDate: February ____, 2016	EXHIBIT B\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this "Agreement"), is made and entered into as of the date on which it is fully executed,\nas indicated by signatures below, by and among Sunshine Financial, Inc. (the "Company"), The Stilwell Group (composed of Stilwell Value\nPartners VII, L.P., Stilwell Activist Fund, L.P., Stilwell Activist Investments, L.P., Stilwell Partners, L.P., and Stilwell Value LLC, and their\nemployees and representatives), and Corissa J. Briglia (the "Director").\nWHEREAS, the Director is a member of the Board of Directors of the Company and its wholly owned subsidiary, Sunshine Savings\nBank (the "Bank");\nWHEREAS, the Company, The Stilwell Group and the Director have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree\nas follows:\n1. In connection with the Director serving on the Boards of Directors of the Company and the Bank, the Director and other\nCompany employees, directors, and agents may divulge nonpublic information concerning the Company and its subsidiaries to The Stilwell\nGroup and such information may be shared among The Stilwell Group's employees, representatives, and agents who have a need to know such\ninformation. The Stilwell Group expressly agrees to maintain all nonpublic information concerning the Company and its subsidiaries in\nconfidence. The Stilwell Group expressly acknowledges that federal and state securities laws may prohibit a person from purchasing or selling\nsecurities of a company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable\nthat such other person is likely to purchase or sell such securities, while the first-mentioned person is in possession of material nonpublic\ninformation about such company. The Stilwell Group agrees to comply with the Company's insider trading policies and procedures, as in effect\nfrom time to time, to the same extent as if it were a director of the Company. To the extent any nonpublic information concerning the Company\nand its subsidiaries received by The Stilwell Group is material, this Agreement is intended to satisfy the confidentiality agreement exclusion of\nRegulation FD of the U.S. Securities and Exchange Commission (the "SEC") set forth in Rule 100(b)(2)(ii) of Regulation FD of the SEC.\n2. Each of The Stilwell Group and the Director represents and warrants to the Company that this Agreement has been duly and\nvalidly authorized (in the case of the entity members of The Stilwell Group), executed and delivered by them, and is a valid and binding\nagreement enforceable against them in accordance with its terms.\n3. The Director hereby further confirms to the Company that no event has occurred with respect to the Director that would require\ndisclosure in a document filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act\nof 1934, as amended, under Item 401(f) or Item 404(a) of SEC Regulation S-K.\n4. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic information of\nthe Company and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and\nthat, in addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable relief as a\nremedy for such breach, and agrees that in conjunction therewith the Company shall not be required to post any bond.\n5. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and\nsupersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not\nreferred to herein.\n6. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Maryland, without regard to\nchoice of law principles that may otherwise compel the application of the laws of any\nother jurisdiction. Each of the parties hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in the State of\nMaryland to resolve any dispute arising from this Agreement and waives any defense of inconvenient or improper forum.\n7. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion\nthereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8. All representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Agreement.\n9. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written\nagreement executed by all of the parties hereto.\n10. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one\nand the same agreement.\nIN WITNESS WHEREQOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as of as of the\nday and year indicated below.\nTHE STILWELL GROUP\nBy:\nMegan Parisi\nCo-Managing Member, Stilwell Value LLC\nDated: February ___, 2016\nDIRECTOR\nCorissa J. Briglia\nDate: February ___, 2016\nSUNSHINE FINANCIAL, INC.\nBy:\n \nLouis O. Davis\nPresident & CEO\nDate: February , 2016	EXHIBIT B\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this "Agreement"), is made and entered into as of the date on which it is fully executed,\nas indicated by signatures below, by and among Sunshine Financial, Inc. (the "Company"), The Stilwell Group (composed of Stilwell Value\nPartners VII, L.P., Stilwell Activist Fund, L.P., Stilwell Activist Investments, L.P., Stilwell Partners, L.P., and Stilwell Value LLC, and their\nemployees and representatives), and Corissa J. Briglia (the "Director").\nWHEREAS, the Director is a member of the Board of Directors of the Company and its wholly owned subsidiary, Sunshine Savings\nBank (the "Bank");\nWHEREAS, the Company, The Stilwell Group and the Director have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree\nas follows:\n1. In connection with the Director serving on the Boards of Directors of the Company and the Bank, the Director and other\nCompany employees, directors, and agents may divulge nonpublic information concerning the Company and its subsidiaries to The Stilwell\nGroup and such information may be shared among The Stilwell Group's employees, representatives, and agents who have a need to know such\ninformation. The Stilwell Group expressly agrees to maintain all nonpublic information concerning the Company and its subsidiaries in\nconfidence. The Stilwell Group expressly acknowledges that federal and state securities laws may prohibit a person from purchasing or selling\nsecurities of a company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable\nthat such other person is likely to purchase or sell such securities, while the first-mentioned person is in possession of material nonpublic\ninformation about such company. The Stilwell Group agrees to comply with the Company's insider trading policies and procedures, as in effect\nfrom time to time, to the same extent as if it were a director of the Company. To the extent any nonpublic information concerning the Company\nand its subsidiaries received by The Stilwell Group is material, this Agreement is intended to satisfy the confidentiality agreement exclusion of\nRegulation FD of the U.S. Securities and Exchange Commission (the "SEC") set forth in Rule 100(b)(2)(ii) of Regulation FD of the SEC.\n2. Each of The Stilwell Group and the Director represents and warrants to the Company that this Agreement has been duly and\nvalidly authorized (in the case of the entity members of The Stilwell Group), executed and delivered by them, and is a valid and binding\nagreement enforceable against them in accordance with its terms.\n3. The Director hereby further confirms to the Company that no event has occurred with respect to the Director that would require\ndisclosure in a document filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act\nof 1934, as amended, under Item 401(f) or Item 404(a) of SEC Regulation S-K.\n4. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic information of\nthe Company and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and\nthat, in addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable relief as a\nremedy for such breach, and agrees that in conjunction therewith the Company shall not be required to post any bond.\n5. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and\nsupersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not\nreferred to herein.\n6. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Maryland, without regard to\nchoice of law principles that may otherwise compel the application of the laws of any\nother jurisdiction. Each of the parties hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in the State of\nMaryland to resolve any dispute arising from this Agreement and waives any defense of inconvenient or improper forum.\n7.\nThe terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion\nthereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8. All representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Agreement.\n9.\nThis Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written\nagreement executed by all of the parties hereto.\n10. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one\nand the same agreement.\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as of as of the\nday and year indicated below.\nTHE STILWELL GROUP\nBy:\nMegan Parisi\nCo-Managing Member, Stilwell Value LLC\nDated: February 2016\nDIRECTOR\nCorissa J. Briglia\nDate: February > 2016\nSUNSHINE FINANCIAL, INC.\nBy:\nLouis O. Davis\nPresident & CEO\nDate: February\n> 2016	EXHIBIT B\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT (this "Agreement"), is made and entered into as of the date on which it is fully executed,\nas indicated by signatures below, by and among Sunshine Financial, Inc. (the "Company"), The Stilwell Group (composed of Stilwell Value\nPartners VII, L.P., Stilwell Activist Fund, L.P., Stilwell Activist Investments, L.P., Stilwell Partners, L.P., and Stilwell Value LLC, and their\nemployees and representatives), and Corissa J. Briglia (the "Director").\nWHEREAS, the Director is a member of the Board of Directors of the Company and its wholly owned subsidiary, Sunshine Savings\nBank (the "Bank");\nWHEREAS, the Company, The Stilwell Group and the Director have agreed that it is in their mutual interests to enter into this\nAgreement as hereinafter described.\nNOW THEREFORE, for good and valuable consideration, and intending to be legally bound hereby, the parties hereto mutually agree\nas follows:\n1. In connection with the Director serving on the Boards of Directors of the Company and the Bank, the Director and other\nCompany employees, directors, and agents may divulge nonpublic information concerning the Company and its subsidiaries to The Stilwell\nGroup and such information may be shared among The Stilwell Group's employees, representatives, and agents who have a need to know such\ninformation. The Stilwell Group expressly agrees to maintain all nonpublic information concerning the Company and its subsidiaries in\nconfidence. The Stilwell Group expressly acknowledges that federal and state securities laws may prohibit a person from purchasing or selling\nsecurities of a company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable\nthat such other person is likely to purchase or sell such securities, while the first-mentioned person is in possession of material nonpublic\ninformation about such company. The Stilwell Group agrees to comply with the Company's insider trading policies and procedures, as in effect\nfrom time to time, to the same extent as if it were a director of the Company. To the extent any nonpublic information concerning the Company\nand its subsidiaries received by The Stilwell Group is material, this Agreement is intended to satisfy the confidentiality agreement exclusion of\nRegulation FD of the U.S . Securities and Exchange Commission (the "SEC") set forth in Rule 100(b)(2)(ii) of Regulation FD of the SEC.\n2. Each of The Stilwell Group and the Director represents and warrants to the Company that this Agreement has been duly and\nvalidly authorized (in the case of the entity members of The Stilwell Group), executed and delivered by them, and is a valid and binding\nagreement enforceable against them in accordance with its terms.\n3. The Director hereby further confirms to the Company that no event has occurred with respect to the Director that would require\ndisclosure in a document filed by the Company with the SEC pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act\nof 1934, as amended, under Item 401(f) or Item 404(a) of SEC Regulation S-K.\n4. The Stilwell Group acknowledges that with regard to its obligations to maintain the confidentiality of nonpublic information of\nthe Company and its subsidiaries, monetary damages may not be a sufficient remedy for any breach or threatened breach of this Agreement and\nthat, in addition to all other remedies, the Company may be entitled to seek specific performance and injunctive or other equitable relief as a\nremedy for such breach, and agrees that in conjunction therewith the Company shall not be required to post any bond.\n5. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and\nsupersedes all prior and contemporaneous agreements, understandings, negotiations and discussions of the parties in connection therewith not\nreferred to herein.\n6. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Maryland, without regard to\nchoice of law principles that may otherwise compel the application of the laws of any\nother jurisdiction. Each of the parties hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts sitting in the State of\nMaryland to resolve any dispute arising from this Agreement and waives any defense of inconvenient or improper forum.\n7. The terms and provisions of this Agreement shall be deemed severable and, in the event any term or provision hereof or portion\nthereof is deemed or held to be invalid, illegal or unenforceable, such provision shall be conformed to prevailing law rather than voided, if\npossible, in order to achieve the intent of the parties, and, in any event, the remaining terms and provisions of this Agreement shall nevertheless\ncontinue and be deemed to be in full force and effect and binding upon the parties.\n8. All representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Agreement.\n9. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of a written\nagreement executed by all of the parties hereto.\n10. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one\nand the same agreement.\nIN WITNESS WHEREOF, this Agreement has been duly executed and delivered by duly authorized officers of the undersigned as of as of the\nday and year indicated below.\nTHE STILWELL GROUP\nBy:\n_______________________\nMegan Parisi\nCo-Managing Member, Stilwell Value LLC\nDated: February ___, 2016\nDIRECTOR\n_____________________\nCorissa J. Briglia\nDate: February ___, 2016\nSUNSHINE FINANCIAL, INC.\nBy:\n________________________________\nLouis O. Davis\nPresident & CEO\nDate: February ____, 2016
+b5690711912ee1ff847cb4947c1aeb20.pdf	effective_date jurisdiction party	EXHIBIT 10.33\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\n(Gregory Ray)\nThis NON-COMPETITION AND NON-DISCLOSURE AGREEMENT is entered into this 15th day of November, 1999, by\nand between Gregory Ray, who resides at 39W750 Crosscreek Lane, St. Charles, Illinois 60175 (“Executive”) and Heritage-Crystal\nClean, LLC, an Indiana limited liability company (“Crystal Clean”);\nWITNESSETH:\nWHEREAS, Executive is a Unit holder and Member of Crystal Clean and serves as its Vice President of Business Management\nand as a result of his positions with Crystal Clean, Executive has access to and knowledge of all of Crystal Clean’s business\ninformation and confidential data; and\nWHEREAS, Executive’s right to subscribe for and receive ownership of Units in Crystal Clean is expressly conditioned upon\nExecutive’s entering into an Executive Employment Agreement (“Employment Agreement”) and this Non-Competition and\nNon-Disclosure Agreement;\nNOW THEREFORE, pursuant to the above and in consideration of the terms and conditions contained herein and for other good\nand valuable considerations, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:\n(1) Consideration. Executive acknowledges that the consideration received by Executive under the Subscription Agreement and\nthe Employment Agreement and otherwise resulting from the agreement of The Heritage Group, an Indiana general partnership, and\ncertain of its affiliates, partners and their beneficiaries (collectively, “Heritage”) to organize Crystal Clean, is good and sufficient\nconsideration for Executive’s covenants, agreements and forebearances contained in this Agreement and that Executive would not\nhave been allowed to subscribe for Units but for Executive’s entering into this Agreement.\n(2) Non-Disclosure. Executive will not, at any time following this date except as required by the duties of his employment with\nCrystal Clean and/or its subsidiaries or affiliates, disclose to any person, firm or corporation, any confidential information concerning\nCrystal Clean or its assets or business, except as may be required by governmental law or regulation or in legal proceedings to which\nExecutive is subpoenaed to give testimony, in which event Executive shall notify Crystal Clean immediately upon learning that\nExecutive may be required or compelled to divulge any confidential information. For purposes of this Agreement, “confidential\ninformation” consists of that proprietary information subject to protection under the Uniform Trade Secrets Act and includes, without\nlimitation, Crystal Clean’s customer list and price information for all customers and other intangible property to be transferred to\nCrystal Clean by Heritage. “Confidential information” does not include information in the public domain through no fault of the\nExecutive or reasonably discoverable without access to internal documents or information.\n1\n(3) Non Competition. During the term of Executive’s employment with Crystal Clean, and for a period of two (2) years from the\ndate of Executive’s Termination of Employment under the Employment Agreement (“Restricted Period”), Executive will not, other\nthan for the exclusive benefit of Crystal Clean, engage in the Business (as defined below) in the geographical area in which Crystal\nClean conducts Business during the term of Executive’s employment with Crystal Clean (“Territory”),whether as an employee,\nowner, member, manager, consultant, agent, partner, service provider or in any other capacity. For purposes of this Agreement, the\nterm “Business” means the business of providing environmental and fluid management services to small and medium sized customers\nand providing parts washing and drum disposal services (“Business”). Notwithstanding the foregoing, the parties agree that Executive\nmay at any time engage in the following activities, except to the extent such activities conflict with or breach Executive’s duties and\ncovenants as otherwise described in this Agreement and in the Employment Agreement (such as including but not limited to the\nprovisions regarding confidential information, non-disclosure, non-solicitation and non-piracy and the provisions regarding regular\nand full-time employment with the Company): (a) owning, directly or indirectly, any of the equity or debt securities of Evergreen\nHoldings, Inc., a corporation which engages in a business similar to a portion of the Business conducted by the Company, or its\naffiliates (collectively, “Evergreen”); (b) only with respect to Evergreen’s used oil collection and re-refining business, acting as an\nadviser or member of the Board of Directors of Evergreen; and (c) assisting with the sale (including a public offering) or liquidation\nof Evergreen (all such activities collectively referred to as “Evergreen Activities”). The parties further acknowledge that Executive\nhas disclosed to the Company, as a potential conflict of interest, Executive’s interest as both the son-in-law of the owner of Evergreen\nand a claimant of Evergreen shares in an amount not exceeding .3%.\n(4) Non-Solicitation; Non-Piracy. During the Restricted Period, Executive will not personally call on any person or business\norganization which was a customer of Crystal Clean during the Executive’s term of employment for Business within the Territory.\nFurther, during the Restricted Period, Executive will not, without the consent of Crystal Clean, for the Executive’s own account or for\nany third party, solicit or endeavor to entice away, offer employment to or employ any person who was employed by Crystal Clean\nduring the twelve (12) month period immediately before the termination of Executive’s employment with Crystal Clean.\n(5) Other Services. Executive may, without causing Executive to be in breach of this Agreement, enter into other business\nendeavors during the Restricted Period or may engage in the Business outside of the Territory; provided that Executive’s other\npermitted services will not be deemed to allow Executive to use or disclose “Confidential Information” in contravention of this\nAgreement or other agreements between Executive and Crystal Clean. Executive also may, without causing Executive to be in breach\nof this Agreement, engage in the Evergreen Activities to the extent and on the terms provided in Section 3.\n(6) Default and Remedies. Executive acknowledges and agrees that, if Executive directly or indirectly breaches, violates, or fails\nto perform fully its obligations under this Agreement (“Default”), each Default shall cause immediate and irreparable harm to Crystal\nClean, in a manner which cannot be adequately compensated in damages. Crystal Clean and Executive agree that in the\n2\nevent of any such Default, Crystal Clean, in addition to all other available remedies at law or in equity, may, insofar as Executive\nmay be concerned, be entitled to temporary, preliminary and permanent injunctive relief to restrain such Default(s) by Executive or\nothers acting in concert with Executive, and to all of its costs, expenses, and reasonable attorneys’ .fees incurred in any enforcement\nproceedings in which Crystal Clean prevails in whole or in part. Nothing contained herein shall restrict or limit in any manner Crystal\nClean’s right to obtain any form of relief, legal or equitable, in an action brought to enforce Crystal Clean’s rights.\n(7) Severability. All provisions of this Agreement are intended to be severable. Each provision of this Agreement constitutes a\nseparate and distinct covenant. In the event any term, provision, or restriction in this Agreement is held to be illegal, invalid or\nunenforceable in any respect, such finding shall in no way affect the legality, validity, or enforceability of all other provisions of this\nAgreement. Crystal Clean and Executive agree that any such unenforceable term, provision or restriction shall be deemed modified to\nthe extent necessary to permit its enforcement to the maximum extent permitted by applicable law.\n(8) No Waiver of Rights. Neither any failure or any delay on the part of any party in exercising its rights shall operate as a\nwaiver, nor shall a single or partial exercise preclude any further exercise of any right, power, or privilege by any party.\n(9) Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws\nof the State of Indiana. The state and federal courts located in Marion County, Indiana, or Cook County, Illinois shall be the courts of\nexclusive jurisdiction and venue over any enforcement of this Agreement.\n(10) Benefit. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and\nassigns of the parties hereto. Executive hereby agrees that the provisions of this Agreement may be assigned in whole or in part by\nCrystal Clean, and Executive hereby consents to such assignment and agrees to be bound to the assignee under all of the terms and\nconditions of this Agreement.\n(11) Notices. All notices and communications hereunder shall be in writing and shall be deemed to be duly given if delivered in\naccordance with Section 17 of the Employment Agreement.\n(12) Modification. No waiver, alteration or modification of any provision of this Agreement will be valid unless made in writing\nand signed by all parties hereto. The waiver of any breach or default shall not be deemed to waive any subsequent breach or default.\n(13) Entire Agreement. This Agreement constitutes the entire agreement of the parties relative to the subject matter and\nsupersedes any prior understanding, agreements or representations by or among the parties, written or oral with regard to the subject\nmatter of this Agreement.\n3\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Non-Disclosure Agreement on the day and year\nfirst above written.\nEXECUTIVE\n/s/ Gregory Ray\nGregory Ray\nHERITAGE-CRYSTAL CLEAN, LLC\nBy: /s/ Fred M. Fehsenfeld, Jr.\nFred M. Fehsenfeld, Jr., Chairman\n4	EXHIBIT 10.33\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\n(Gregory Ray)\nThis N0 N-COMPETITION AND NON-DISCLOSURE AG REEMENT is entered into this 15th day of November, 1999, by\nand between G regory Ray, who resides at 39W 750 Crosscreek Lane, St. Charles, Illinois 60175 (”Executive”) and Heritage-C rystal\nClean, LLC, an Indiana limited liability company (”Crystal Clean”);\nWITNESSETH:\nWHE REA S, Executive is a Unit holder and Member of Crystal Clean and serves as its Vice President of Business Management\nand as a result of his positions with Crystal Clean, Executive has access to and knowledge of all of Crystal Clean’ s business\ninformation and confidential data; and\nWHE REA S, Executive’s right to subscribe for and receive ownership of Units in Crystal Clean is expressly conditioned upon\nExecutive’s entering into an Executive Employment Agreement (”Employment Agreement”) and this Non-Competition and\nNon-D isclosure A greement;\nNOW THEREFORE, pursuant to the above and in consideration of the terms and conditions contained herein and for other good\nand valuable considerations, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:\n(1) Consideration. Executive acknowledges that the consideration received by Executive under the Subscription Agreement and\nthe Employment Agreement and otherwise resulting from the agreement of The Heritage Group, an Indiana general partnership, and\ncertain of its affiliates, partners and their beneficiaries (collectively, ”Heritage”) to organize Crystal Clean, is good and sufficient\nconsideration for Executive’s covenants, agreements and forebearances contained in this Agreement and that Executive would not\nhave been allowed to subscribe for Units but for Executive’s entering into this Agreement.\n(2) Non-Disclosure. Executive will not, at any time following this date except as required by the duties of his employment with\nCrystal Clean and/or its subsidiaries or affiliates, disclose to any person, firm or corporation, any confidential information concerning\nCrystal Clean or its assets or business, except as may be required by governmental law or regulation or in legal proceedings to which\nExecutive is subpoenaed to give testimony, in which event Executive shall notify Crystal Clean immediately upon learning that\nExecutive may be required or compelled to divulge any confidential information. For purposes of this Agreement, ”confidential\ninformation” consists of that proprietary information subject to protection under the Uniform Trade Secrets Act and includes, without\nlimitation, Crystal Clean’ s customer list and price information for all customers and other intangible property to be transferred to\nCrystal Clean by Heritage. ”Confidential information” does not include information in the public domain through no fault of the\nExecutive or reasonably discoverable without access to internal documents or information.\n1\n(3) Non Competition. During the term of Executive’s employment with Crystal Clean, and for a period of two (2) years from the\ndate of Executive’s Termination of Employment under the Employment A greement (”Restricted Period”), Executive will not, other\nthan for the exclusive benefit of Crystal Clean, engage in the Business (as defined below) in the geographical area in which Crystal\nClean conducts Business during the term of Executive’s employment with Crystal Clean (”Territory”),whether as an employee,\nowner, member, manager, consultant, agent, partner, service provider or in any other capacity. For purposes of this A greement, the\nterm ”Business” means the business of providing environmental and fluid management services to small and medium sized customers\nand providing parts washing and drum disposal services (”Business”). Notwithstanding the foregoing, the parties agree that Executive\nmay at any time engage in the following activities, except to the extent such activities conflict with or breach Executive’s duties and\ncovenants as otherwise described in this Agreement and in the Employment Agreement (such as including but not limited to the\nprovisions regarding confidential information, non- disclosure, non-solicitation and non-piracy and the provisions regarding regular\nand full-time employment with the Company): (a) owning, directly or indirectly, any of the equity or debt securities of Evergreen\nHoldings, Inc., a corporation which engages in a business similar to a portion of the Business conducted by the Company, or its\naffiliates (collectively, ”Evergreen”); (b) only with respect to Evergreen’ s used oil collection and rerefining business, acting as an\nadviser or member of the Board of Directors of Evergreen; and (c) assisting with the sale (including a public offering) or liquidation\nof Evergreen (all such activities collectively referred to as ”Evergreen Activities"). The parties further acknowledge that Executive\nhas disclosed to the Company, as a potential conflict of interest, Executive’s interest as both the son-in-law of the owner of Evergreen\nand a claimant of Evergreen shares in an amount not exceeding .3%.\n(4) Non-Solicitation; Non-Piragy. During the Restricted Period, Executive will not personally call on any person or business\norganization which was a customer of Crystal Clean during the Executive’s term of employment for Business within the Territory.\nFurther, during the Restricted Period, Executive will not, without the consent of Crystal Clean, for the Executive’s own account or for\nany third party, solicit or endeavor to entice away, offer employment to or employ any person who was employed by Crystal Clean\nduring the twelve (12) month period immediately before the termination of Executive’s employment with Crystal Clean.\n(5) Other Services. Executive may, without causing Executive to be in breach of this Agreement, enter into other business\nendeavors during the Restricted Period or may engage in the Business outside of the Territory; provided that Executive’s other\npermitted services will not be deemed to allow Executive to use or disclose ”Confidential lnforrnation” in contravention of this\nAgreement or other agreements between Executive and Crystal Clean. Executive also may, without causing Executive to be in breach\nof this Agreement, engage in the Evergreen Activities to the extent and on the terms provided in Section 3.\n(6) Default and Remedies. Executive acknowledges and agrees that, if Executive directly or indirectly breaches, violates, or fails\nto perform fully its obligations under this Agreement (”Default”), each Default shall cause immediate and irreparable harm to Crystal\nClean, in a manner which cannot be adequately compensated in damages. Crystal Clean and Executive agree that in the\n2\nevent of any such Default, Crystal Clean, in addition to all other available remedies at law or in equity, may, insofar as Executive\nmay be concerned, be entitled to temporary, preliminary and permanent injunctive relief to restrain such Default(s) by Executive or\nothers acting in concert with Executive, and to all of its costs, expenses, and reasonable attorneys’ .fees incurred in any enforcement\nproceedings in which Crystal Clean prevails in whole or in part. Nothing contained herein shall restrict or limit in any manner Crystal\nClean’s right to obtain any form of relief, legal or equitable, in an action brought to enforce Crystal Clean’s rights.\n(7) Severability. All provisions of this Agreement are intended to be severable. Each provision of this Agreement constitutes a\nseparate and distinct covenant. In the event any term, provision, or restriction in this Agreement is held to be illegal, invalid or\nunenforceable in any respect, such finding shall in no way affect the legality, validity, or enforceability of all other provisions of this\nAgreement. Crystal Clean and Executive agree that any such unenforceable term, provision or restriction shall be deemed modified to\nthe extent necessary to permit its enforcement to the maximum extent permitted by applicable law.\n(8) No Waiver of Rights. Neither any failure or any delay on the part of any party in exercising its rights shall operate as a\nwaiver, nor shall a single or partial exercise preclude any further exercise of any right, power, or privilege by any party.\n(9) G overning Law; | urisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws\nof the State of Indiana. The state and federal courts located in Marion County, Indiana, or Cook County, Illinois shall be the courts of\nexclusive jurisdiction and venue over any enforcement of this Agreement.\n(10) Benefit. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and\nassigns of the parties hereto. Executive hereby agrees that the provisions of this Agreement may be assigned in whole or in part by\nCrystal Clean, and Executive hereby consents to such assignment and agrees to be bound to the assignee under all of the terms and\nconditions of this Agreement.\n \n(11) Notices. All notices and communications hereunder shall be in writing and shall be deemed to be duly given if delivered in\naccordance with Section 17 of the Employment A greement.\n(12) Modification. No waiver, alteration or modification of any provision of this Agreement will be valid unless made in writing\nand signed by all parties hereto. The waiver of any breach or default shall not be deemed to waive any subsequent breach or default.\n(13) Entire Agreement. This Agreement constitutes the entire agreement of the parties relative to the subject matter and\nsupersedes any prior understanding, agreements or representations by or among the parties, written or oral with regard to the subject\nmatter of this A greement.\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Non-Disclosure Agreement on the day and year\nfirst above written.\nEXECUTIVE\n/s/ Gregory Ray\nGregory Ray\nHERITAGE-CRY STAL CLEAN, LLC\nBy: /s/ Fred M. Fehsenfeld, Jr.\nFred M. Fehsenfeld, Jr., Chairman\n4	EXHIBIT 10.33\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\n(Gregory Ray)\nThis NON-COMPETITION AND NON-DISCLOSURE AGREEMENT is entered into this 15th day of November, 1999, by\nand between Gregory Ray, who resides at 39W 750 Crosscreek Lane, St. Charles, Illinois 60175 ("Executive") and Heritage-Crys\nClean, LLC, an Indiana limited liability company ("Crystal Clean");\nWITNESSETH:\nWHEREAS, Executive is a Unit holder and Member of Crystal Clean and serves as its Vice President of Business Management\nand as a result of his positions with Crystal Clean, Executive has access to and knowledge of all of Crystal Clean's business\ninformation and confidential data; and\nWHEREAS, Executive's right to subscribe for and receive ownership of Units in Crystal Clean is expressly conditioned upon\nExecutive's entering into an Executive Employment A greement ("Employment A greement") and this Non-Competition and\nNon-Disclosure Agreement;\nNOW THEREFORE, pursuant to the above and in consideration of the terms and conditions contained herein and for other good\nand valuable considerations, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:\n(1) Consideration. Executive acknowledges that the consideration received by Executive under the Subscription A greement and\nthe Employment A greement and otherwise resulting from the agreement of The Heritage Group, an Indiana general partnership, and\ncertain of its affiliates, partners and their beneficiaries (collectively, "Heritage") to organize Crystal Clean, is good and sufficient\nconsideration for Executive's covenants, agreements and forebearances contained in this Agreement and that Executive would not\nhave been allowed to subscribe for Units but for Executive's entering into this A greement.\n(2) Non-Disclosure. Executive will not, at any time following this date except as required by the duties of his employment with\nCrystal Clean and/or its subsidiaries or affiliates, disclose to any person, firm or corporation, any confidentia information concerning\nCrystal Clean or its assets or business, except as may be required by governmenta law or regulation or in legal proceedings to which\nExecutive is subpoenaed to give testimony, in which event Executive shall notify Crystal Clean immediately upon learning that\nExecutive may be required or compelled to divulge any confidential information For purposes of this Agreement, "confidential\ninformation" consists of that proprietary information subject to protection under the Uniform Trade Secrets Act and includes, without\nlimitation, Crystal Clean's customer list and price information for all customers and other intangible property to be transferred to\nCrystal Clean by Heritage. "Confidential information" does not include information in the public domain through no fault of the\nExecutive or reasonably discoverable without access to internal documents or information.\n1\n(3) Non Competition. During the term of Executive's employment with Crystal Clean, and for a period of two (2) years from the\ndate of Executive's Termination of Employment under the Employment A greement ("Restricted Period"), Executive will not, other\nthan for the exclusive benefit of Crystal Clean, engage in the Business (as defined below) in the geographical area in which Crystal\nClean conducts Business during the term of Executive's employment with Crystal Clean ("Territory"), whether as an employee,\nowner, member, manager, consultant, agent, partner, service provider or in any other capacity. For purposes of this greement, the\nterm "Business" means the business of providing environmental and fluid management services to small and medium sized customers\nand providing parts washing and drum disposal services ("Business"). Notwithstanding the foregoing, the parties agree that Executive\nmay at any time engage in the following activities, except to the extent such activities conflict with or breach Executive's duties and\ncovenants as otherwise described in this A greement and in the Employment A greement (such as including but not limited to the\nprovisions regarding confidentia information, non-disclosure, non-solicitation and non-piracy and the provisions regarding regular\nand full-time employment with the Company): (a) owning, directly or indirectly, any of the equity or debt securities of Evergreen\nHoldings, Inc., a corporation which engages in a business similar to a portion of the Business conducted by the Company, or its\naffiliates (collectively, "Evergreen"); (b) only with respect to Evergreen's used oil collection and re-refining business, acting as an\nadviser or member of the Board of Directors of Evergreen; and (c) assisting with the sale (including a public offering) or liquidation\nof Evergreen (all such activities collectively referred to as "Evergreen Activities"). The parties further acknowledge that Executive\nhas disclosed to the Company, as a potential conflict of interest, Executive's interest as both the son-in-law of the owner of Evergreen\nand a claimant of Evergreen shares in an amount not exceeding .3%.\n(4)\nNon-Solicitation; Non-Piracy. During the Restricted Period, Executive will not personally call on any person or business\norganization which was a customer of Crystal Clean during the Executive's term of employment for Business within the Territory.\nFurther, during the Restricted Period, Executive will not without the consent of Crystal Clean, for the Executive's own account or for\nany third party, solicit or endeavor to entice away, offer employment to or employ any person who was employed by Crystal Clean\nduring the twelve (12) month period immediately before the termination of Executive's employment with Crystal Clean.\n(5) Other Services. Executive may, without causing Executive to be in breach of this Agreement, enter into other business\nendeavors during the Restricted Period or may engage in the Business outside of the Territory; provided that Executive's other\npermitted services will not be deemed to allow Executive to use or disclose "Confidential Information" in contravention of this\nA greement or other agreements between Executive and Crystal Clean. Executive also may, without causing Executive to be in breach\nof this A greement, engage in the Evergreen A ctivities to the extent and on the terms provided in Section 3.\n(6) Default and Remedies. Executive acknowledges and agrees that, if Executive directly or indirectly breaches, violates, or fails\nto perform fully its obligations under this A greement ("Default"), each Default shall cause immediate and irreparable harm to Crystal\nClean, in a manner which cannot be adequately compensated in damages. Crysta Clean and Executive agree that in the\n2\nevent of any such Default, Crystal Clean in addition to all other available remedies at law or in equity, may, insofar as Executive\nmay be concerned, be entitled to temporary, preliminary and permanent injunctive relief to restrain such Default(s) by Executive or\nothers acting in concert with Executive, and to all of its costs, expenses, and reasonable attoreys' .fees incurred in any enforcement\nproceedings in which Crystal Clean prevails in whole or in part Nothing contained herein shall restrict or limit in any manner Crystal\nClean's right to obtain any form of relief, legal or equitable, in an action brought to enforce Crystal Clean's rights.\n(7) Severability. All provisions of this A greement are intended to be severable. Each provision of this A greement constitutes a\nseparate and distinct covenant. In the event any term, provision, or restriction in this A greement is held to be illegal, invalid or\nunenforceable in any respect, such finding shall in no way affect the legality, validity, or enforceability of all other provisions of this\nA greement. Crystal Clean and Executive agree that any such unenforceable term, provision or restriction shall be deemed modified to\nthe extent necessary to permit its enforcement to the maximum extent permitted by applicable law.\n(8) No Waiver of Rights. Neither any failure or any delay on the part of any party in exercising its rights shall operate as\na\nwaiver, nor shall a single or partial exercise preclude any further exercise of any right power, or privilege by any party.\n(9) Governing Law; urisdiction and Venue. This A greement shall be governed by and construed in accordance with the laws\nof the State of Indiana. The state and federal courts located in Marion County, Indiana, or Cook County, Illinois shall be the courts of\nexclusive jurisdiction and venue over any enforcement of this greement.\n(10) Benefit. This A greement shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and\nassigns of the parties hereto. Executive hereby agrees that the provisions of this greement may be assigned in whole or in part by\nCrystal Clean, and Executive hereby consents to such assignment and agrees to be bound to the assignee under all of the terms and\nconditions of this A greement.\n(11) Notices. All notices and communications hereunder shall be in writing and shall be deemed to be duly given if delivered in\naccordance with Section 17 of the Employment A greement\n(12) Modification. No waiver, alteration or modification of any provision of this A greement will be valid unless made in writing\nand signed by all parties hereto. The waiver of any breach or default shall not be deemed to waive any subsequent breach or default.\n(13) Entire Agreement. This greement constitutes the entire agreement of the parties relative to the subject matter and\nsupersedes any prior understanding, agreements or representations by or among the parties, written or oral with regard to the subject\nmatter of this A greement.\n3\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Non-Disclosure Agreement on the day and year\nfirst above written.\nEXECUTIVE\n/s/ Gregory Ray\nGregory Ray\nHERITAGE-CRYSTAL CLEAN, LLC\nBy:/s/ Fred M. Fehsenfeld, Jr.\nFred M. Fehsenfeld, Jr., Chairman\n4	EXHIBIT 10.33\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\n(Gregory Ray)\nThis NON-COMPETITION AND NON-DISCLOSURE AGREEMENT is entered into this 15th day of November, 1999, by\nand between Gregory Ray, who resides at 39W750 Crosscreek Lane, St. Charles, Illinois 60175 (“Executive”) and Heritage-Crystal\nClean, LLC, an Indiana limited liability company (“Crystal Clean”);\nWITNESSETH:\nWHEREAS, Executive is a Unit holder and Member of Crystal Clean and serves as its Vice President of Business Management\nand as a result of his positions with Crystal Clean, Executive has access to and knowledge of all of Crystal Clean’s business\ninformation and confidential data; and\nWHEREAS, Executive’s right to subscribe for and receive ownership of Units in Crystal Clean is expressly conditioned upon\nExecutive’s entering into an Executive Employment Agreement (“Employment Agreement”) and this Non-Competition and\nNon-Disclosure Agreement;\nNOW THEREFORE, pursuant to the above and in consideration of the terms and conditions contained herein and for other good\nand valuable considerations, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:\n(1) Consideration. Executive acknowledges that the consideration received by Executive under the Subscription Agreement and\nthe Employment Agreement and otherwise resulting from the agreement of The Heritage Group, an Indiana general partnership, and\ncertain of its affiliates, partners and their beneficiaries (collectively, “Heritage”) to organize Crystal Clean, is good and sufficient\nconsideration for Executive’s covenants, agreements and forebearances contained in this Agreement and that Executive would not\nhave been allowed to subscribe for Units but for Executive’s entering into this Agreement.\n(2) Non-Disclosure. Executive will not, at any time following this date except as required by the duties of his employment with\nCrystal Clean and/or its subsidiaries or affiliates, disclose to any person, firm or corporation, any confidential information concerning\nCrystal Clean or its assets or business, except as may be required by governmental law or regulation or in legal proceedings to which\nExecutive is subpoenaed to give testimony, in which event Executive shall notify Crystal Clean immediately upon learning that\nExecutive may be required or compelled to divulge any confidential information. For purposes of this Agreement, “confidential\ninformation” consists of that proprietary information subject to protection under the Uniform Trade Secrets Act and includes, without\nlimitation, Crystal Clean’s customer list and price information for all customers and other intangible property to be transferred to\nCrystal Clean by Heritage. “Confidential information” does not include information in the public domain through no fault of the\nExecutive or reasonably discoverable without access to internal documents or information.\n1\n(3) Non Competition. During the term of Executive’s employment with Crystal Clean, and for a period of two (2) years from the\ndate of Executive’s Termination of Employment under the Employment Agreement (“Restricted Period”), Executive will not, other\nthan for the exclusive benefit of Crystal Clean, engage in the Business (as defined below) in the geographical area in which Crystal\nClean conducts Business during the term of Executive’s employment with Crystal Clean (“Territory”),whether as an employee,\nowner, member, manager, consultant, agent, partner, service provider or in any other capacity. For purposes of this Agreement, the\nterm “Business” means the business of providing environmental and fluid management services to small and medium sized customers\nand providing parts washing and drum disposal services (“Business”). Notwithstanding the foregoing, the parties agree that Executive\nmay at any time engage in the following activities, except to the extent such activities conflict with or breach Executive’s duties and\ncovenants as otherwise described in this Agreement and in the Employment Agreement (such as including but not limited to the\nprovisions regarding confidential information, non-disclosure, non-solicitation and non-piracy and the provisions regarding regular\nand full-time employment with the Company): (a) owning, directly or indirectly, any of the equity or debt securities of Evergreen\nHoldings, Inc., a corporation which engages in a business similar to a portion of the Business conducted by the Company, or its\naffiliates (collectively, “Evergreen”); (b) only with respect to Evergreen’s used oil collection and re-refining business, acting as an\nadviser or member of the Board of Directors of Evergreen; and (c) assisting with the sale (including a public offering) or liquidation\nof Evergreen (all such activities collectively referred to as “Evergreen Activities”). The parties further acknowledge that Executive\nhas disclosed to the Company, as a potential conflict of interest, Executive’s interest as both the son-in-law of the owner of Evergreen\nand a claimant of Evergreen shares in an amount not exceeding .3%.\n(4) Non-Solicitation; Non-Piracy. During the Restricted Period, Executive will not personally call on any person or business\norganization which was a customer of Crystal Clean during the Executive’s term of employment for Business within the Territory.\nFurther, during the Restricted Period, Executive will not, without the consent of Crystal Clean, for the Executive’s own account or for\nany third party, solicit or endeavor to entice away, offer employment to or employ any person who was employed by Crystal Clean\nduring the twelve (12) month period immediately before the termination of Executive’s employment with Crystal Clean.\n(5) Other Services. Executive may, without causing Executive to be in breach of this Agreement, enter into other business\nendeavors during the Restricted Period or may engage in the Business outside of the Territory; provided that Executive’s other\npermitted services will not be deemed to allow Executive to use or disclose “Confidential Information” in contravention of this\nAgreement or other agreements between Executive and Crystal Clean. Executive also may, without causing Executive to be in breach\nof this Agreement, engage in the Evergreen Activities to the extent and on the terms provided in Section 3.\n(6) Default and Remedies. Executive acknowledges and agrees that, if Executive directly or indirectly breaches, violates, or fails\nto perform fully its obligations under this Agreement (“Default”), each Default shall cause immediate and irreparable harm to Crystal\nClean, in a manner which cannot be adequately compensated in damages. Crystal Clean and Executive agree that in the\n2\nevent of any such Default, Crystal Clean, in addition to all other available remedies at law or in equity, may, insofar as Executive\nmay be concerned, be entitled to temporary, preliminary and permanent injunctive relief to restrain such Default(s) by Executive or\nothers acting in concert with Executive, and to all of its costs, expenses, and reasonable attorneys’ .fees incurred in any enforcement\nproceedings in which Crystal Clean prevails in whole or in part. Nothing contained herein shall restrict or limit in any manner Crystal\nClean’s right to obtain any form of relief, legal or equitable, in an action brought to enforce Crystal Clean’s rights.\n(7) Severability. All provisions of this Agreement are intended to be severable. Each provision of this Agreement constitutes a\nseparate and distinct covenant. In the event any term, provision, or restriction in this Agreement is held to be illegal, invalid or\nunenforceable in any respect, such finding shall in no way affect the legality, validity, or enforceability of all other provisions of this\nAgreement. Crystal Clean and Executive agree that any such unenforceable term, provision or restriction shall be deemed modified to\nthe extent necessary to permit its enforcement to the maximum extent permitted by applicable law.\n(8) No Waiver of Rights. Neither any failure or any delay on the part of any party in exercising its rights shall operate as a\nwaiver, nor shall a single or partial exercise preclude any further exercise of any right, power, or privilege by any party.\n(9) Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws\nof the State of Indiana. The state and federal courts located in Marion County, Indiana, or Cook County, Illinois shall be the courts of\nexclusive jurisdiction and venue over any enforcement of this Agreement.\n(10) Benefit. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and\nassigns of the parties hereto. Executive hereby agrees that the provisions of this Agreement may be assigned in whole or in part by\nCrystal Clean, and Executive hereby consents to such assignment and agrees to be bound to the assignee under all of the terms and\nconditions of this Agreement.\n(11) Notices. All notices and communications hereunder shall be in writing and shall be deemed to be duly given if delivered in\naccordance with Section 17 of the Employment Agreement.\n(12) Modification. No waiver, alteration or modification of any provision of this Agreement will be valid unless made in writing\nand signed by all parties hereto. The waiver of any breach or default shall not be deemed to waive any subsequent breach or default.\n(13) Entire Agreement. This Agreement constitutes the entire agreement of the parties relative to the subject matter and\nsupersedes any prior understanding, agreements or representations by or among the parties, written or oral with regard to the subject\nmatter of this Agreement.\n3\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Non-Disclosure Agreement on the day and year\nfirst above written.\nEXECUTIVE\n/s/ Gregory Ray\nGregory Ray\nHERITAGE-CRYSTAL CLEAN, LLC\nBy: /s/ Fred M. Fehsenfeld, Jr.\nFred M. Fehsenfeld, Jr., Chairman\n4
+b6323928675ffdb3a92be0a3fc863f59.pdf	effective_date jurisdiction party term	1.\n2.\nExhibit A\nCONFIDENTIALITY/ NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”) is made and entered into as of the\ndate of the latter of the two signatures appearing below between Social Reality, Inc. (“Employer”) and Erin DeRuggiero\n(“Executive”).\nPurpose. Employer wishes to employ the Executive pursuant, during which employment the Employer\nmay disclose to Executive certain confidential technical, financial, and business information including, but not limited\nto, information relating to advertising techniques, historical prices, Internet-based advertising, marketing practices,\nclients, prospective clients, proprietary software, trade secrets, and other intellectual property which Employer desires\nExecutive to treat as confidential during and after the termination of Executive’s employment.\nDefinition.\n"Confidential Information" means any information, documents, and/or tangible things\ndisclosed to Executive by Employer, either directly or indirectly in writing, orally or by inspection of tangible objects,\nincluding without limitation the Employer's business and operating plans, software, and competitors. Without limiting\nthe generality of the foregoing, Confidential Information shall include trade secrets as “trade secrets” are defined under\nthe version of the Uniform Trade Secrets Act adopted and in effect in the State of California, as amended from time to\ntime during the term of this Agreement, the provisions of which defining “trade secrets” are incorporated herein by\nreference. Confidential Information shall also include but not be limited to all other discoveries, developments, designs,\nimprovements, inventions, formulas, software programs, business plans, processes, username and password information,\ntechniques, know-how, negative know-how, data, research, techniques, technical data, client and customer and supplier\nlists, financial projections, current and prospective financing arrangements, marketing methods, plans, and related data,\ncustomer lists, buying habits and practices, pricing structures, and payment and credit histories, costs of sales and terms\nof trade, the identity and business practices of vendors, suppliers, financiers, bankers, agents, or brokers, the identity,\nskill sets, and job duties of vendors, employees, independent contractors, or Executives, terms of employment for\nemployees, agents, and representatives, including employee stock option plans and participation, written records and\ndata used in developing and operating its business, other confidential information of, about, or concerning Employer ’s\nbusiness and affairs, the financing and operations of its business, and its relationships with its employees, agents,\ncustomers, vendors, or representatives, and any modifications or enhancements of any of the foregoing, and all Employer\nprogram, pricing, marketing, sales, business contract, or other financial or business information. Confidential\nInformation shall not, however, include any information which Executive can establish: (i) was publicly known and\nmade generally available in the public domain prior to the time of disclosure to Executive by Employer; (ii) becomes\npublicly known and made generally available after disclosure to Executive by Employer through no action or inaction of\nExecutive; or (iii) is in the possession of Executive, without confidentiality restrictions, at the time of disclosure by the\nEmployer as shown by Executive's files and records immediately prior to the time of disclosure. It shall be presumed that\nany information in the possession of Executive that has been disclosed\n3.\n4.\n5.\nOwnership.\n6.\n7.\nto Executive by Employer, or any agent or representative of Employer, is not within any of the exceptions to the\ndefinition of Confidential Information set forth in the previous sentence, and the burden is on Executive to prove\notherwise by written records and documentation.\nNon-use and Non-disclosure. Executive agrees not to use or disclose any Confidential Information for\nany purpose except as part of Executive’s performance of his job duties during his employment by the Employer.\nExecutive shall not reverse-engineer, disassemble or decompile any prototypes, software or other tangible objects,\nwhich embody Employer's Confidential Information and which are provided to Executive hereunder. The Executive\nagrees that all Confidential Information shall not be used by the Executive in any way adverse to the interests of the\nEmployer or any of its subsidiaries during the Term of this Agreement, and shall not be used by the Executive in any\nway whatsoever following the Term of this Agreement. The Executive will not, during the Term or thereafter, use,\nreference, paraphrase, deliver, reproduce, or in any way allow such information, documents, and/or things to be used,\ndelivered, reproduced, or referenced, by any third party without specific prior written request to and the written\nauthorization from a duly authorized representative of the Employer. During and after termination of the Executive’s\nemployment with the Employer, the Executive will not use, publish, release, reproduce, or otherwise make available to\nany third party any information, document, or thing containing or describing any trade secret or other Confidential\nInformation of the Employer without prior specific written authorization of the Employer.\nMaintenance of Confidentiality. Executive agrees that he shall take all reasonable measures to protect\nthe secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the\nforegoing, Executive shall take at least those measures that Executive takes to protect his own most highly confidential\ninformation. Executive shall not make any copies of Confidential Information, except as previously approved in writing\nby the Employer. Executive shall reproduce the Employer's proprietary rights and confidentiality notices on any such\napproved copies, in the same manner in which such notices were set forth in or on the original. Executive shall\nimmediately notify the Employer in the event of any unauthorized use or disclosure of the Confidential Information.\nAll documentary Confidential Information, and all copies and summaries or synopses\nthereof, however made or obtained, and whether in tangible or electronic medium, are and shall remain the exclusive\nproperty of the Employer.\nReturn of Materials. All documents and other tangible objects containing or representing Confidential\nInformation and all copies thereof which are in the possession of Executive shall be and remain the property of\nEmployer and shall be promptly returned to Employer upon Employer's request.\nNo License. Nothing in this Agreement is intended to grant any rights to Executive under any patent,\nmask work right, or copyright of Employer, nor shall this Agreement grant Executive any rights in or to Confidential\nInformation except as expressly set forth herein.\n12\n8.\n9.\nDate:\nBy:\nName:\nTitle:\nDate:\nTerm. This Agreement shall survive until such time as all Confidential Information disclosed hereunder\nbecomes publicly known and made generally available through no action or inaction of Executive.\nRemedies. Executive agrees that any violation or threatened violation of this Agreement will cause\nirreparable injury to the Employer, entitling Employer to seek injunctive relief in addition to all legal remedies.\nAGREED AND ACCEPTED:\nERIN DERUGGIERO (“Executive”):\n/s/ Erin DeRuggiero\nOctober 19, 2015\nSOCIAL REALITY, INC. (“Employer”):\n/s/ Chris Miglino\nChris Miglino\nChief Executive Officer\nOctober 19, 2015\n13	Exhibit A\nCONFIDENTIALITY/ NON-DISCIL.OSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”) is made and entered into as of the\ndate of the latter of the two signatures appearing below between Social Reality, Inc. (“Employer”) and Erin DeRuggiero\n(“Executive”).\n1. Purpose. Employer wishes to employ the Executive pursuant, during which employment the Employer\nmay disclose to Executive certain confidential technical, financial, and business information including, but not limited\nto, information relating to advertising techniques, historical prices, Internet-based advertising, marketing practices,\nclients, prospective clients, proprietary software, trade secrets, and other intellectual property which Employer desires\nExecutive to treat as confidential during and after the termination of Executive’s employment.\n2. Definition. "Confidential Information" means any information, documents, and/or tangible things\ndisclosed to Executive by Employer, either directly or indirectly in writing, orally or by inspection of tangible objects,\nincluding without limitation the Employer's business and operating plans, software, and competitors. Without limiting\nthe generality of the foregoing, Confidential Information shall include trade secrets as “trade secrets” are defined under\nthe version of the Uniform Trade Secrets Act adopted and in effect in the State of California, as amended from time to\ntime during the term of this Agreement, the provisions of which defining “trade secrets” are incorporated herein by\nreference. Confidential Information shall also include but not be limited to all other discoveries, developments, designs,\nimprovements, inventions, formulas, software programs, business plans, processes, username and password information,\ntechniques, know-how, negative know-how, data, research, techniques, technical data, client and customer and supplier\nlists, financial projections, current and prospective financing arrangements, marketing methods, plans, and related data,\ncustomer lists, buying habits and practices, pricing structures, and payment and credit histories, costs of sales and terms\nof trade, the identity and business practices of vendors, suppliers, financiers, bankers, agents, or brokers, the identity,\nskill sets, and job duties of vendors, employees, independent contractors, or Executives, terms of employment for\nemployees, agents, and representatives, including employee stock option plans and participation, written records and\ndata used in developing and operating its business, other confidential information of, about, or concerning Employer’s\nbusiness and affairs, the financing and operations of its business, and its relationships with its employees, agents,\ncustomers, vendors, or representatives, and any modifications or enhancements of any of the foregoing, and all Employer\nprogram, pricing, marketing, sales, business contract, or other financial or business information. Confidential\nInformation shall not, however, include any information which Executive can establish: (i) was publicly known and\nmade generally available in the public domain prior to the time of disclosure to Executive by Employer; (ii) becomes\npublicly known and made generally available after disclosure to Executive by Employer through no action or inaction of\nExecutive; or (iii) is in the possession of Executive, without confidentiality restrictions, at the time of disclosure by the\nEmployer as shown by Executive's files and records immediately prior to the time of disclosure. It shall be presumed that\nany information in the possession of Executive that has been disclosed\n-\nto Executive by Employer, or any agent or representative of Employer, is not within any of the exceptions to the\ndefinition of Confidential Information set forth in the previous sentence, and the burden is on Executive to prove\notherwise by written records and documentation.\n3. Non-use and Non-disclosure. Executive agrees not to use or disclose any Confidential Information for\nany purpose except as part of Executive’s performance of his job duties during his employment by the Employer.\nExecutive shall not reverse-engineer, disassemble or decompile any prototypes, software or other tangible objects,\nwhich embody Employer's Confidential Information and which are provided to Executive hereunder. The Executive\nagrees that all Confidential Information shall not be used by the Executive in any way adverse to the interests of the\nEmployer or any of its subsidiaries during the Term of this Agreement, and shall not be used by the Executive in any\nway whatsoever following the Term of this Agreement. The Executive will not, during the Term or thereafter, use,\nreference, paraphrase, deliver, reproduce, or in any way allow such information, documents, and/or things to be used,\ndelivered, reproduced, or referenced, by any third party without specific prior written request to and the written\nauthorization from a duly authorized representative of the Employer. During and after termination of the Executive’s\nemployment with the Employer, the Executive will not use, publish, release, reproduce, or otherwise make available to\nany third party any information, document, or thing containing or describing any trade secret or other Confidential\nInformation of the Employer without prior specific written authorization of the Employer.\n4. Maintenance of Confidentiality. Executive agrees that he shall take all reasonable measures to protect\nthe secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the\nforegoing, Executive shall take at least those measures that Executive takes to protect his own most highly confidential\ninformation. Executive shall not make any copies of Confidential Information, except as previously approved in writing\nby the Employer. Executive shall reproduce the Employer's proprietary rights and confidentiality notices on any such\napproved copies, in the same manner in which such notices were set forth in or on the original. Executive shall\nimmediately notify the Employer in the event of any unauthorized use or disclosure of the Confidential Information.\n5. Ownership. All documentary Confidential Information, and all copies and summaries or synopses\nthereof, however made or obtained, and whether in tangible or electronic medium, are and shall remain the exclusive\nproperty of the Employer.\n6. Return of Materials. All documents and other tangible objects containing or representing Confidential\nInformation and all copies thereof which are in the possession of Executive shall be and remain the property of\nEmployer and shall be promptly returned to Employer upon Employer's request.\n7. No License. Nothing in this Agreement is intended to grant any rights to Executive under any patent,\nmask work right, or copyright of Employer, nor shall this Agreement grant Executive any rights in or to Confidential\nInformation except as expressly set forth herein.\n12\n8. Term. This Agreement shall survive until such time as all Confidential Information disclosed hereunder\nbecomes publicly known and made generally available through no action or inaction of Executive.\n9. Remedies. Executive agrees that any violation or threatened violation of this Agreement will cause\nirreparable injury to the Employer, entitling Employer to seek injunctive relief in addition to all legal remedies.\nAGREED AND ACCEPTED:\nERIN DERUGGIERO (“Executive”):\n/s/ Erin DeRuggiero\nDate: October 19, 2015\nSOCIAL REALITY, INC. (“Employer”):\nBy: /s/ Chris Miglino\nName: Chris Miglino\nTitle: Chief Executive Officer\nDate: October 19, 2015\n13	Exhibit A\nCONFIDENTIALITY/NON-DISCLOSUREA AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this "Agreement") is made and entered into as of the\ndate of the latter of the two signatures appearing below between Social Reality, Inc. ("Employer") and Erin DeRuggiero\n("Executive").\n1.\nPurpose. Employer wishes to employ the Executive pursuant, during which employment the Employer\nmay disclose to Executive certain confidential technical, financial, and business information including, but not limited\nto, information relating to advertising techniques, historical prices, Internet-based advertising, marketing practices,\nclients, prospective clients, proprietary software, trade secrets, and other intellectual property which Employer desires\nExecutive to treat as confidential during and after the termination of Executive's employment.\n2.\nDefinition. "Confidential Information" means any information, documents, and/or tangible things\ndisclosed\nto\nExecutive\nby\nEmployer,\neither\ndirectly\nor\nindirectly\nin\nwriting,\norally\nor\nby\ninspection\nof\ntangible\nobjects,\nincluding without limitation the Employer's business and operating plans, software, and competitors. Without limiting\nthe generality of the foregoing, Confidential Information shall include trade secrets as "trade secrets" are defined under\nthe version of the Uniform Trade Secrets Act adopted and in effect in the State of California, as amended from time\nto\ntime during the term of this Agreement, the provisions of which defining "trade secrets" are incorporated herein by\nreference.\nConfidential\nInformation\nshall\nalso\ninclude\nbut\nnot\nbe\nlimited\nto\nall\nother\ndiscoveries,\ndevelopments,\ndesigns,\nimprovements, inventions, formulas, software programs, business plans, processes, username and password information,\ntechniques, know-how, negative know-how, data, research, techniques, technical data, client and customer and supplier\nlists, financial projections, current and prospective financing arrangements, marketing methods, plans, and related data,\ncustomer lists, buying habits and practices, pricing structures, and payment and credit histories, costs of sales and terms\nof trade, the identity and business practices of vendors, suppliers, financiers, bankers, agents, or brokers, the identity,\nskill sets, and job duties of vendors, employees, independent contractors, or Executives, terms of employment for\nemployees, agents, and representatives, including employee stock option plans and participation, written records and\ndata used in developing and operating its business, other confidential information of, about, or concerning Employer's\nbusiness and affairs, the financing and operations of its business, and its relationships with its employees, agents,\ncustomers, vendors, or representatives, and any modifications or enhancements of any of the foregoing, and all Employer\nprogram, pricing, marketing, sales, business contract, or other financial or business information. Confidential\nInformation shall not, however, include any information which Executive can establish: (i) was publicly known and\nmade\ngenerally\navailable\nin\nthe\npublic\ndomain\nprior\nto\nthe\ntime\nof\ndisclosure\nto\nExecutive\nby\nEmployer;\n(ii)\nbecomes\npublicly known and made generally available after disclosure to Executive by Employer through no action or inaction of\nExecutive; or (iii) is in the possession of Executive, without confidentiality restrictions, at the time of disclosure by the\nEmployer as shown by Executive's files and records immediately prior to the time of disclosure. It shall be presumed that\nany information in the possession of Executive that has been disclosed\nto Executive by Employer, or any agent or representative of Employer, is not within any of the exceptions to the\ndefinition of Confidential Information set forth in the previous sentence, and the burden is on Executive to prove\notherwise by written records and documentation.\n3.\nNon-use and Non-disclosure. Executive agrees not to use or disclose any Confidential Information for\nany purpose except as part of Executive's performance of his job duties during his employment by the Employer.\nExecutive shall not reverse-engineer, disassemble or decompile any prototypes, software or other tangible objects,\nwhich embody Employer's Confidential Information and which are provided to Executive hereunder. The Executive\nagrees that all Confidential Information shall not be used by the Executive in any way adverse to the interests of the\nEmployer or any of its subsidiaries during the Term of this Agreement, and shall not be used by the Executive in any\nway whatsoever following the Term of this Agreement. The Executive will not, during the Term or thereafter, use,\nreference, paraphrase, deliver, reproduce, or in any way allow such information, documents, and/or things to be used,\ndelivered, reproduced, or referenced, by any third party without specific prior written request to and the written\nauthorization from a duly authorized representative of the Employer. During and after termination of the Executive's\nemployment with the Employer, the Executive will not use, publish, release, reproduce, or otherwise make available to\nany third party any information, document, or thing containing or describing any trade secret or other Confidential\nInformation of the Employer without prior specific written authorization of the Employer.\n4.\nMaintenance of Confidentiality. Executive agrees that he shall take all reasonable measures to protect\nthe secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the\nforegoing,\nExecutive\nshall\ntake\nat\nleast\nthose\nmeasures\nthat\nExecutive\ntakes\nto\nprotect\nhis\nown\nmost\nhighly\nconfidential\ninformation. Executive shall not make any copies of Confidential Information, except as previously approved in writing\nby the Employer. Executive shall reproduce the Employer's proprietary rights and confidentiality notices on any such\napproved copies, in the same manner in which such notices were set forth in or on the original. Executive shall\nimmediately notify the Employer in the event of any unauthorized use or disclosure of the Confidential Information.\n5.\nOwnership. All documentary Confidential Information, and all copies and summaries or synopses\nthereof, however made or obtained, and whether in tangible or electronic medium, are and shall remain the exclusive\nproperty of the Employer.\n6.\nReturn of Materials. All documents and other tangible objects containing or representing Confidential\nInformation and all copies thereof which are in the possession of Executive shall be and remain the property of\nEmployer and shall be promptly returned to Employer upon Employer's request.\n7.\nNo License. Nothing in this Agreement is intended to grant any rights to Executive under any patent,\nmask work right, or copyright of Employer, nor shall this Agreement grant Executive any rights in or to Confidential\nInformation except as expressly set forth herein.\n12\n8.\nTerm. This Agreement shall survive until such time as all Confidential Information disclosed hereunder\nbecomes publicly known and made generally available through no action or inaction of Executive.\n9.\nRemedies. Executive agrees that any violation or threatened violation of this Agreement will cause\nirreparable injury to the Employer, entitling Employer to seek injunctive relief in addition to all legal remedies.\nAGREED AND ACCEPTED:\nERIN DERUGGIERO ("Executive"):\n/s/ Erin DeRuggiero\nDate:\nOctober 19, 2015\nSOCIAL REALITY, INC. ("Employer"):\nBy:\n/s/ Chris Miglino\nName:\nChris Miglino\nTitle:\nChief Executive Officer\nDate:\nOctober 19, 2015\n13	1.\n2.\nExhibit A\nCONFIDENTIALITY/ NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”) is made and entered into as of the\ndate of the latter of the two signatures appearing below between Social Reality, Inc. (“Employer”) and Erin DeRuggiero\n(“Executive”).\nPurpose. Employer wishes to employ the Executive pursuant, during which employment the Employer\nmay disclose to Executive certain confidential technical, financial, and business information including, but not limited\nto, information relating to advertising techniques, historical prices, Internet-based advertising, marketing practices,\nclients, prospective clients, proprietary software, trade secrets, and other intellectual property which Employer desires\nExecutive to treat as confidential during and after the termination of Executive’s employment.\nDefinition.\n"Confidential Information" means any information, documents, and/or tangible things\ndisclosed to Executive by Employer, either directly or indirectly in writing, orally or by inspection of tangible objects,\nincluding without limitation the Employer's business and operating plans, software, and competitors. Without limiting\nthe generality of the foregoing, Confidential Information shall include trade secrets as “trade secrets” are defined under\nthe version of the Uniform Trade Secrets Act adopted and in effect in the State of California, as amended from time to\ntime during the term of this Agreement, the provisions of which defining “trade secrets” are incorporated herein by\nreference. Confidential Information shall also include but not be limited to all other discoveries, developments, designs,\nimprovements, inventions, formulas, software programs, business plans, processes, username and password information,\ntechniques, know-how, negative know-how, data, research, techniques, technical data, client and customer and supplier\nlists, financial projections, current and prospective financing arrangements, marketing methods, plans, and related data,\ncustomer lists, buying habits and practices, pricing structures, and payment and credit histories, costs of sales and terms\nof trade, the identity and business practices of vendors, suppliers, financiers, bankers, agents, or brokers, the identity,\nskill sets, and job duties of vendors, employees, independent contractors, or Executives, terms of employment for\nemployees, agents, and representatives, including employee stock option plans and participation, written records and\ndata used in developing and operating its business, other confidential information of, about, or concerning Employer ’s\nbusiness and affairs, the financing and operations of its business, and its relationships with its employees, agents,\ncustomers, vendors, or representatives, and any modifications or enhancements of any of the foregoing, and all Employer\nprogram, pricing, marketing, sales, business contract, or other financial or business information. Confidential\nInformation shall not, however, include any information which Executive can establish: (i) was publicly known and\nmade generally available in the public domain prior to the time of disclosure to Executive by Employer; (ii) becomes\npublicly known and made generally available after disclosure to Executive by Employer through no action or inaction of\nExecutive; or (iii) is in the possession of Executive, without confidentiality restrictions, at the time of disclosure by the\nEmployer as shown by Executive's files and records immediately prior to the time of disclosure. It shall be presumed that\nany information in the possession of Executive that has been disclosed\n3.\n4.\n5.\nOwnership.\n6.\n7.\nto Executive by Employer, or any agent or representative of Employer, is not within any of the exceptions to the\ndefinition of Confidential Information set forth in the previous sentence, and the burden is on Executive to prove\notherwise by written records and documentation.\nNon-use and Non-disclosure. Executive agrees not to use or disclose any Confidential Information for\nany purpose except as part of Executive’s performance of his job duties during his employment by the Employer.\nExecutive shall not reverse-engineer, disassemble or decompile any prototypes, software or other tangible objects,\nwhich embody Employer's Confidential Information and which are provided to Executive hereunder. The Executive\nagrees that all Confidential Information shall not be used by the Executive in any way adverse to the interests of the\nEmployer or any of its subsidiaries during the Term of this Agreement, and shall not be used by the Executive in any\nway whatsoever following the Term of this Agreement. The Executive will not, during the Term or thereafter, use,\nreference, paraphrase, deliver, reproduce, or in any way allow such information, documents, and/or things to be used,\ndelivered, reproduced, or referenced, by any third party without specific prior written request to and the written\nauthorization from a duly authorized representative of the Employer. During and after termination of the Executive’s\nemployment with the Employer, the Executive will not use, publish, release, reproduce, or otherwise make available to\nany third party any information, document, or thing containing or describing any trade secret or other Confidential\nInformation of the Employer without prior specific written authorization of the Employer.\nMaintenance of Confidentiality. Executive agrees that he shall take all reasonable measures to protect\nthe secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the\nforegoing, Executive shall take at least those measures that Executive takes to protect his own most highly confidential\ninformation. Executive shall not make any copies of Confidential Information, except as previously approved in writing\nby the Employer. Executive shall reproduce the Employer's proprietary rights and confidentiality notices on any such\napproved copies, in the same manner in which such notices were set forth in or on the original. Executive shall\nimmediately notify the Employer in the event of any unauthorized use or disclosure of the Confidential Information.\nAll documentary Confidential Information, and all copies and summaries or synopses\nthereof, however made or obtained, and whether in tangible or electronic medium, are and shall remain the exclusive\nproperty of the Employer.\nReturn of Materials. All documents and other tangible objects containing or representing Confidential\nInformation and all copies thereof which are in the possession of Executive shall be and remain the property of\nEmployer and shall be promptly returned to Employer upon Employer's request.\nNo License. Nothing in this Agreement is intended to grant any rights to Executive under any patent,\nmask work right, or copyright of Employer, nor shall this Agreement grant Executive any rights in or to Confidential\nInformation except as expressly set forth herein.\n12\n8.\n9.\nDate:\nBy:\nName:\nTitle:\nDate:\nTerm. This Agreement shall survive until such time as all Confidential Information disclosed hereunder\nbecomes publicly known and made generally available through no action or inaction of Executive.\nRemedies. Executive agrees that any violation or threatened violation of this Agreement will cause\nirreparable injury to the Employer, entitling Employer to seek injunctive relief in addition to all legal remedies.\nAGREED AND ACCEPTED:\nERIN DERUGGIERO (“Executive”):\n/s/ Erin DeRuggiero\nOctober 19, 2015\nSOCIAL REALITY, INC. (“Employer”):\n/s/ Chris Miglino\nChris Miglino\nChief Executive Officer\nOctober 19, 2015\n13
+b721dcae6974087868aeb77364c6d4b2.pdf	effective_date jurisdiction party	Exhibit 10.2\nCorporate Headquarters\n8250 Jones Branch Drive\nMcLean, VA 22102\nTel: (703) 918-5000\nwww.FreddieMac.com\nRESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT\nIn exchange for the mutual promises and consideration set forth below, this Restrictive Covenant and Confidentiality Agreement\n(“Agreement”) is entered into by and between the Federal Home Loan Mortgage Corporation (“Freddie Mac” or “Company”) and\nDonald H. Layton (“Executive” or “you”), effective as of May 21, 2012. To the extent that any required approval of this Agreement\nor the employment agreement of which this Agreement forms a part is not obtained, this Agreement shall be null and void in all\nrespects and you shall have no further obligations under this Agreement, the employment agreement or any other plan, policy or\nprogram of Freddie Mac.\nI.\nDefinitions\nThe following terms shall have the meanings indicated when used in this Agreement.\nA.\nProhibited Competition: Considering offers of employment from, seeking or accepting employment with, directly or\nindirectly providing professional services to, becoming a director of, or being an investor (representing more than a five (5) percent\nequity interest) in, (i) Fannie Mae (ii) all Federal Home Loan Banks (including the Office of Finance); and (iii) such other entities to\nwhich the Executive and the Company may agree in writing from time-to-time.\nB.\nConfidential Information: Information or materials in written, oral, magnetic, digital, computer, photographic, optical,\nelectronic, or other form, whether now existing or developed or created during the period of Executive’s employment with Freddie\nMac, that constitutes trade secrets and/or proprietary or confidential information. This information includes, but is not limited to:\n(i) all information marked Proprietary or Confidential; (ii) information concerning the components, capabilities, and attributes of\nFreddie Mac’s business plans, methods, and strategies; (iii) information relating to tactics, plans, or strategies concerning\nshareholders, investors, pricing, investment, marketing, sales, trading, funding, hedging, modeling, sales and risk management;\n(iv) financial or tax information and analyses, including but not limited to, information concerning Freddie Mac’s capital structure\nand tax or financial planning; (v) confidential information about Freddie Mac’s customers, borrowers, employees, or others;\n(vi) pricing and quoting information, policies, procedures, and practices; (vii) confidential customer lists; (viii) proprietary\nalgorithms; (ix) confidential contract terms; (x) confidential information concerning Freddie Mac’s policies, procedures, and\npractices or the way in which Freddie Mac does business; (xi) proprietary or confidential data bases, including their structure and\ncontent; (xii) proprietary Freddie Mac business software, including its design, specifications and documentation; (xiii) information\nabout Freddie Mac products, programs, and services which has not yet been made public; (xiv) confidential information about\nFreddie Mac’s dealings with third parties, including dealers, customers, vendors, and regulators; and/or (xv) confidential information\nbelonging to third parties to which Executive received access in connection with Executive’s employment with Freddie Mac.\nConfidential Information does not include general skills, experience, or knowledge acquired in connection with Executive’s\nemployment with Freddie Mac that otherwise are generally known to the public or within the industry or trade in which Freddie Mac\noperates.\nII.\nNon-Competition\nExecutive recognizes that as a result of Executive’s employment with Freddie Mac, Executive has access to and knowledge of\ncritically sensitive Confidential Information, the improper disclosure or use of which would result in grave competitive harm to\nFreddie Mac. Therefore, Executive agrees that during\n2\nExecutive’s employment with Freddie Mac and for twenty-four (24) months immediately following termination of Executive’s\nemployment for any reason, Executive shall not engage in Prohibited Competition. Executive acknowledges and agrees that this\ncovenant has unique, substantial and immeasurable value to Freddie Mac, that Executive has sufficient skills to provide a livelihood\nfor Executive while this covenant remains in force, and that this covenant will not interfere with Executive’s ability to work\nconsistent with Executive’s experience, training and education. This non-competition covenant applies regardless of whether\nExecutive’s employment is terminated by Executive, by Freddie Mac, or by a joint decision.\nIII.\nNon-Solicitation and Non-Recruitment\nDuring Executive’s employment with Freddie Mac and for a period of twelve (12) months after Executive’s termination of\nemployment for any reason, Executive shall not directly or indirectly, on his own behalf of or on behalf of any other person,\ncorporation, partnership, firm, financial institution or other business entity, recruit or solicit or attempt to recruit or solicit or assist\nanother to recruit or solicit any person (who at such time is employed as a Freddie Mac officer (or equivalent)) to cease their\nemployment relationship with Freddie Mac for the purpose of their being employed by or providing professional services to any other\nentity or person; provided that this section shall not be construed as a prohibition on the ability of Executive to provide a reference to\nany person or entity with which Executive has no affiliation provided the Freddie Mac employee has notified Freddie Mac of his or\nher intent to terminate their employment with Freddie Mac.\nIV.\nTreatment of Confidential Information\nA.\nNon-Disclosure. Executive recognizes that Freddie Mac is engaged in an extremely competitive business and that, in the\ncourse of performing Executive’s job duties, Executive will have access to and gain knowledge about Confidential Information.\nExecutive further recognizes the importance of carefully protecting this Confidential Information in order for Freddie Mac to\ncompete successfully. Therefore, Executive agrees that Executive will neither divulge Confidential Information to any persons,\nincluding to other Freddie Mac employees who do not have a Freddie Mac business-related need to know, nor make use of the\nConfidential Information for the Executive’s own benefit or for the benefit of anyone else other than Freddie Mac. Executive further\nagrees to take all reasonable precautions to prevent the disclosure of Confidential Information to unauthorized persons or entities, and\nto comply with all Company policies, procedures, and instructions regarding the treatment of such information.\nB.\nReturn of Materials. Executive agrees that upon termination of Executive’s employment with Freddie Mac for any reason\nwhatsoever, Executive will deliver to Freddie Mac’s General Counsel all tangible materials embodying Confidential Information,\nincluding, but not limited to, any documentation, records, listings, notes, files, data, sketches, memoranda, models, accounts,\nreference materials, samples, machine-readable media, computer disks, tapes, and equipment which in any way relate to Confidential\nInformation, whether developed by Executive or not. Executive further agrees not to retain any copies of any materials embodying\nConfidential Information.\nC.\nPost-Termination Obligations. Executive agrees that after the termination of Executive’s employment for any reason,\nExecutive will not use in any way whatsoever, nor disclose any Confidential Information learned or obtained in connection with\nExecutive’s employment with Freddie Mac without first obtaining the written permission of the Senior Vice President of Human\nResources of Freddie Mac. Executive further agrees that, in order to assure the continued confidentiality of the Confidential\nInformation, Freddie Mac may correspond with Executive’s future employers to advise them generally of Executive’s exposure to\nand knowledge of Confidential Information, and Executive’s obligations and responsibilities regarding the Confidential Information.\nExecutive understands and agrees that any such contact may include a request for assurance and confirmation from such employer(s)\nthat Executive will not disclose Confidential Information to such employer(s), nor will such employer(s) permit any use\n3\nwhatsoever of the Confidential Information. To enable Freddie Mac to monitor compliance with the obligations imposed by this\nAgreement, Executive further agrees to inform in writing Freddie Mac’s Senior Vice President of Human Resources of the identity of\nExecutive’s subsequent employer(s) and Executive’s prospective job title and responsibilities prior to beginning employment.\nExecutive agrees that this notice requirement shall remain in effect for twelve (12) months following the termination of Executive’s\nFreddie Mac employment.\nD.\nAbility to Enforce Agreement and Assist Government Investigations. Nothing in this Agreement prohibits or otherwise\nrestricts you from: (1) making any disclosure of information required by law; (2) assisting any regulatory or law enforcement agency\nor legislative body to the extent you maintain a legal right to do so notwithstanding this Agreement; (3) filing, testifying, participating\nin or otherwise assisting in a proceeding relating to the alleged violation of any federal, state, or local law, regulation, or rule, to the\nextent you maintain a legal right to do so notwithstanding this Agreement; (4) filing, testifying, participating in or otherwise assisting\nthe Securities and Exchange Commission or any other proper authority in a proceeding relating to allegations of fraud, (5) enforcing\nany rights or defending any claims hereunder or under the employment agreement or any plan or program of Freddie Mac, or\n(6) making any disclosure with the prior written consent of the Board.\nV.\nConsideration Given to Executive\nIn exchange for agreeing to be bound by the terms, conditions, and restrictions stated in this Agreement, Freddie Mac will provide the\nExecutive with the following consideration, which itself is adequate consideration for Executive’s agreement to be bound by the\nprovisions of this Agreement:\n•\nCompensation. Freddie Mac has agreed to hire and to compensate Executive as its Chief Executive Officer pursuant to the\nterms and conditions set forth in the May 7, 2012 memorandum between Executive and Freddie Mac.\nVI.\nCompliance with the Code of Conduct and Corporate Policies, Including Personal Securities\nInvestments Policy\nAs a Freddie Mac employee, Executive will be subject to Freddie Mac’s Code of Conduct (“Code”) and to Corporate Policy 3-206,\nPersonal Securities Investments Policy (“Policy”) that, among other things, limit the investment activities of Freddie Mac employees.\nExecutive agrees to fully comply with the Code and the Policy.\nVII.\nAbsence of Any Conflict of Interest\nOther than as disclosed in the Executive’s D&O Questionnaire that was previously provided to you, (i) Executive represents that\nExecutive does not have any confidential information, trade secrets or other proprietary information that Executive obtained as the\nresult of Executive’s employment with another employer that Executive will be using in Executive’s position at Freddie Mac; and\n(ii) Executive also represents that Executive is not subject to any employment, confidentiality or stock grant agreements, or any other\nrestrictions or limitations imposed by a prior employer, which would affect Executive’s ability to perform the duties and\nresponsibilities of Chief Executive Officer of Freddie Mac and that Executive has provided Freddie Mac with copies of any such\nagreements or limitations so that Freddie Mac can make an independent judgment that Executive’s employment with Freddie Mac is\nnot inconsistent with any of its terms.\nVIII.\nEffect of Termination of Employment\nIn the event that your employment terminates for any reason, you agree that you shall be deemed to have resigned, effective as of the\ndate of such termination of employment with Freddie Mac, as a member of\n4\nFreddie Mac’s Board of Directors and from all positions, titles, duties, authorities and responsibilities arising out of or relating to\nyour employment or such Board membership, including any directorships or fiduciary positions to which you were serving at the\nrequest of, or appointment by, Freddie Mac. You also agree that you will execute any such documents and take any such further steps\nas Freddie Mac’s Board of Directors reasonably may ask of you to effectuate such resignations.\nIX.\nReservation of Rights\nThis Agreement in not intended, nor shall it be interpreted, to constitute a contract of employment for a specified duration. Your\nemployment is “at-will” and each of you and Freddie Mac retain the discretion to terminate the employment relationship at any time\nfor any lawful reason with or without notice.\nX.\nEnforcement\nA.\nExecutive acknowledges that Executive may be subject to discipline, up to and including termination of employment, for\nExecutive’s breach or threat of breach of any provision of this Agreement.\nB.\nExecutive agrees that irreparable injury will result to Freddie Mac’s business interests in the event of breach or threatened\nbreach of this Agreement, the full extent of Freddie Mac’s damages will be impossible to ascertain, and monetary damages will not\nbe an adequate remedy for Freddie Mac. Therefore, Executive agrees that in the event of a breach or threat of breach of any\nprovision(s) of this Agreement, Freddie Mac, in addition to any other relief available, shall be entitled to temporary, preliminary, and\npermanent equitable relief to restrain any such breach or threat of breach by Executive and all persons acting for and/or in concert\nwith Executive, without the necessity of posting bond or security, which Executive expressly waives.\nC.\nExecutive agrees that each of Executive’s obligations specified in this Agreement is a separate and independent covenant,\nand that all of Executive’s obligations set forth herein shall survive any termination, for any reason, of Executive’s Freddie Mac\nemployment. To the extent that any provision of this Agreement is determined by a court of competent jurisdiction to be\nunenforceable because it is overbroad, that provision shall be limited and enforced to the extent permitted by applicable law. Should\nany provision of this Agreement be declared or determined by any court of competent jurisdiction to be unenforceable or invalid\nunder applicable law, the validity of the remaining obligations will not be affected thereby and only the unenforceable or invalid\nobligation will be deemed not to be a part of this Agreement.\nD.\nThis Agreement is governed by, and will be construed in accordance with, the laws of the Commonwealth of Virginia,\nwithout regard to its or any other jurisdiction’s conflict-of-law provisions. Executive agrees that any action related to or arising out of\nthis Agreement shall be brought exclusively in the United States District Court for the Eastern District of Virginia, and Executive\nhereby irrevocably consents to personal jurisdiction and venue in such court and to service of process by United States Mail or\nexpress courier service in any such action.\nE.\nIf any dispute(s) arise(s) between Freddie Mac and Executive with respect to any matter which is the subject of this\nAgreement, the prevailing party in such dispute(s) shall be entitled to recover from the other party all of its costs and expenses,\nincluding its reasonable attorneys’ fees.\nExecutive has been advised to discuss all aspects of this Agreement with Executive’s private attorney. Executive\nacknowledges that Executive has carefully read and understands the terms and provisions of this Agreement and that they\nare reasonable. Executive signs this Agreement voluntarily and accepts all obligations contained in this Agreement in\nexchange for the consideration to be given to Executive as outlined above, which Executive acknowledges is adequate\n5\nand satisfactory, and which Executive further acknowledges Freddie Mac is not otherwise obligated to provide to Executive.\nNeither Freddie Mac nor its agents, representatives, directors, officers or employees have made any representations to\nExecutive concerning the terms or effects of this Agreement, other than those contained in this Agreement.\nBy:\n/s/ Donald H. Layton\nDate: May 7, 2012\nDonald H. Layton	Exhibit 10.2\nCorporate Headquarters Tel: (703) 918-5000\n8250Jones Branch Drive www.FreddieMac.com\nMcLean,VA 22102\nRESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT\nIn exchange for the mutual promises and consideration set forth below, this Restrictive Covenant and Confidentiality Agreement\n(”A greement”) is entered into by and between the Federal Home Loan Mortgage Corporation (”Freddie Mac” or ”Company”) and\nDonald H. Layton (”Executive” or ”you”), effective as of May 21, 2012. To the extent that any required approval of this Agreement\nor the employment agreement of which this Agreement forms a part is not obtained, this Agreement shall be null and void in all\nrespects and you shall have no further obligations under this Agreement, the employment agreement or any other plan, policy or\nprogram of Freddie Mac.\n1. Definitions\nThe following terms shall have the meanings indicated when used in this Agreement.\nA. Prohibited C ompetition: Considering offers of employment from, seeking or accepting employment with, directly or\nindirectly providing professional services to, becoming a director of, or being an investor (representing more than a five (5) percent\nequity interest) in, (i) Fannie Mae (ii) all Federal Home Loan Banks (including the Office of Finance); and (iii) such other entities to\nwhich the Executive and the Company may agree in writing from time-to-time.\nB. C onfidential Information: Information or materials in written, oral, magnetic, digital, computer, photographic, optical,\nelectronic, or other form, whether now existing or developed or created during the period of Executive’s employment with Freddie\nMac, that constitutes trade secrets and/or proprietary or confidential information. This information includes, but is not limited to:\n(i) all information marked Proprietary or Confidential; (ii) information concerning the components, capabilities, and attributes of\nFreddie Mac’s business plans, methods, and strategies; (iii) information relating to tactics, plans, or strategies concerning\nshareholders, investors, pricing, investment, marketing, sales, trading, funding, hedging, modeling, sales and risk management;\n(iv) financial or tax information and analyses, including but not limited to, information concerning Freddie Mac’s capital structure\nand tax or financial planning; (v) confidential information about Freddie Mac’s customers, borrowers, employees, or others;\n(vi) pricing and quoting information, policies, procedures, and practices; (vii) confidential customer lists; (viii) proprietary\nalgorithms; (ix) confidential contract terms; (x) confidential information concerning Freddie Mac’s policies, procedures, and\npractices or the way in which Freddie Mac does business; (xi) proprietary or confidential data bases, including their structure and\ncontent; (xii) proprietary Freddie Mac business software, including its design, specifications and documentation; (xiii) information\nabout Freddie Mac products, programs, and services which has not yet been made public; (xiv) confidential information about\nFreddie Mac’s dealings with third parties, including dealers, customers, vendors, and regulators; and/or (xv) confidential information\nbelonging to third parties to which Executive received access in connection with Executive’s employment with Freddie Mac.\nConfidential Information does not include general skills, experience, or knowledge acquired in connection with Executive’s\nemployment with Freddie Mac that otherwise are generally known to the public or within the industry or trade in which Freddie Mac\noperates.\n11. Non-C ompetition\nExecutive recognizes that as a result of Executive’s employment with Freddie Mac, Executive has access to and knowledge of\ncritically sensitive Confidential Information, the improper disclosure or use of which would result in grave competitive harm to\nFreddie Mac. Therefore, Executive agrees that during\nExecutive’s employment with Freddie Mac and for twenty-four (24) months immediately following termination of Executive’s\nemployment for any reason, Executive shall not engage in Prohibited Competition. Executive acknowledges and agrees that this\ncovenant has unique, substantial and immeasurable value to Freddie Mac, that Executive has sufficient skills to provide a livelihood\nfor Executive while this covenant remains in force, and that this covenant will not interfere with Executive’s ability to work\nconsistent with Executive’s experience, training and education. This non-competition covenant applies regardless of whether\nExecutive’s employment is terminated by Executive, by Freddie Mac, or by a joint decision.\nIII. Non-Solicitation and Non-Recruitment\nDuring Executive’s employment with Freddie Mac and for a period of twelve (12) months after Executive’s termination of\nemployment for any reason, Executive shall not directly or indirectly, on his own behalf of or on behalf of any other person,\ncorporation, partnership, firm, financial institution or other business entity, recruit or solicit or attempt to recruit or solicit or assist\nanother to recruit or solicit any person (who at such time is employed as a Freddie Mac officer (or equivalent)) to cease their\nemployment relationship with Freddie Mac for the purpose of their being employed by or providing professional services to any other\nentity or person; provided that this section shall not be construed as a prohibition on the ability of Executive to provide a reference to\nany person or entity with which Executive has no affiliation provided the Freddie Mac employee has notified Freddie Mac of his or\nher intent to terminate their employment with Freddie Mac.\nIV. Treatment of C onfidential Information\nA. Non-D isclosure. Executive recognizes that Freddie Mac is engaged in an extremely competitive business and that, in the\ncourse of performing Executive’s job duties, Executive will have access to and gain knowledge about Confidential lnfonnation.\nExecutive further recognizes the importance of carefully protecting this Confidential Information in order for Freddie Mac to\ncompete successfully. Therefore, Executive agrees that Executive will neither divulge Confidential lnfonnation to any persons,\nincluding to other Freddie Mac employees who do not have a Freddie Mac business-related need to know, nor make use of the\nConfidential Information for the Executive’s own benefit or for the benefit of anyone else other than Freddie Mac. Executive further\nagrees to take all reasonable precautions to prevent the disclosure of Confidential lnfonnation to unauthorized persons or entities, and\nto comply with all Company policies, procedures, and instructions regarding the treatment of such information.\nB. Return of Materials. Executive agrees that upon termination of Executive’s employment with Freddie Mac for any reason\nwhatsoever, Executive will deliver to Freddie Mac’s General Counsel all tangible materials embodying Confidential Information,\nincluding, but not limited to, any documentation, records, listings, notes, files, data, sketches, memoranda, models, accounts,\nreference materials, samples, machine-readable media, computer disks, tapes, and equipment which in any way relate to Confidential\nInformation, whether developed by Executive or not. Executive further agrees not to retain any copies of any materials embodying\nConfidential Information.\nC. Post-Termination Obligations. Executive agrees that after the termination of Executive’s employment for any reason,\nExecutive will not use in any way whatsoever, nor disclose any Confidential Information learned or obtained in connection with\nExecutive’s employment with Freddie Mac without first obtaining the written permission of the Senior Vice President of Human\nResources of Freddie Mac. Executive further agrees that, in order to assure the continued confidentiality of the Confidential\nInformation, Freddie Mac may correspond with Executive’s future employers to advise them generally of Executive’s exposure to\nand knowledge of Confidential Information, and Executive’s obligations and responsibilities regarding the Confidential lnfonnation.\nExecutive understands and agrees that any such contact may include a request for assurance and confirmation from such employer(s)\nthat Executive will not disclose Confidential lnfonnation to such employer(s), nor will such employer(s) permit any use\nwhatsoever of the Confidential Information. To enable Freddie Mac to monitor compliance with the obligations imposed by this\nAgreement, Executive further agrees to inform in writing Freddie Mac’s Senior Vice President of Human Resources of the identity of\nExecutive’s subsequent employer(s) and Executive’s prospective job title and responsibilities prior to beginning employment.\nExecutive agrees that this notice requirement shall remain in effect for twelve (12) months following the termination of Executive’s\nFreddie Mac employment.\nD. Ability to Enforce Agreement and Assist G overnment Investigations. Nothing in this Agreement prohibits or otherwise\nrestricts you from: (1) making any disclosure of information required by law; (2) assisting any regulatory or law enforcement agency\nor legislative body to the extent you maintain a legal right to do so notwithstanding this Agreement; (3) filing, testifying, participating\nin or otherwise assisting in a proceeding relating to the alleged violation of any federal, state, or local law, regulation, or rule, to the\nextent you maintain a legal right to do so notwithstanding this A greement; (4) filing, testifying, participating in or otherwise assisting\nthe Securities and Exchange Commission or any other proper authority in a proceeding relating to allegations of fraud, (5) enforcing\nany rights or defending any claims hereunder or under the employment agreement or any plan or program of Freddie Mac, or\n(6) making any disclosure with the prior written consent of the Board.\nV. C onsideration Given to Executive\nIn exchange for agreeing to be bound by the terms, conditions, and restrictions stated in this Agreement, Freddie Mac will provide the\nExecutive with the following consideration, which itself is adequate consideration for Executive’s agreement to be bound by the\nprovisions of this A greement:\nC ompensation. Freddie Mac has agreed to hire and to compensate Executive as its Chief Executive Officer pursuant to the\nterms and conditions set forth in the May 7, 2012 memorandum between Executive and Freddie Mac.\nVI. C ompliance with the C ode of C onduct and C orporate Policies, Including Personal Securities\nInvestments Policy\nAs a Freddie Mac employee, Executive will be subject to Freddie Mac’s Code of Conduct (”Code”) and to Corporate Policy 3-206,\nPersonal Securities Investments Policy (”Policy”) that, among other things, limit the investment activities of Freddie Mac employees.\nExecutive agrees to fully comply with the Code and the Policy.\nVII. Absence of Any C onflict of Interest\nOther than as disclosed in the Executive’s D&O Questionnaire that was previously provided to you, (i) Executive represents that\nExecutive does not have any confidential information, trade secrets or other proprietary information that Executive obtained as the\nresult of Executive’s employment with another employer that Executive will be using in Executive’s position at Freddie Mac; and\n(ii) Executive also represents that Executive is not subject to any employment, confidentiality or stock grant agreements, or any other\nrestrictions or limitations imposed by a prior employer, which would affect Executive’s ability to perform the duties and\nresponsibilities of Chief Executive Officer of Freddie Mac and that Executive has provided Freddie Mac with copies of any such\nagreements or limitations so that Freddie Mac can make an independent judgment that Executive’ 5 employment with Freddie Mac is\nnot inconsistent with any of its terms.\nVIII. Effect of Termination of Employment\nIn the event that your employment terminates for any reason, you agree that you shall be deemed to have resigned, effective as of the\ndate of such termination of employment with Freddie Mac, as a member of\nFreddie Mac’s Board of Directors and from all positions, titles, duties, authorities and responsibilities arising out of or relating to\nyour employment or such Board membership, including any directorships or fiduciary positions to which you were serving at the\nrequest of, or appointment by, Freddie Mac. Y ou also agree that you will execute any such documents and take any such further steps\nas Freddie Mac’s Board of Directors reasonably may ask of you to effectuate such resignations.\nIX. Reservation of Rights\nThis Agreement in not intended, nor shall it be interpreted, to constitute a contract of employment for a specified duration. Y our\nemployment is ”at-will” and each of you and Freddie Mac retain the discretion to terminate the employment relationship at any time\nfor any lawful reason with or without notice.\nX. Enforcement\nA. Executive acknowledges that Executive may be subject to discipline, up to and including termination of employment, for\nExecutive’s breach or threat of breach of any provision of this Agreement.\nB. Executive agrees that irreparable injury will result to Freddie Mac’s business interests in the event of breach or threatened\nbreach of this Agreement, the full extent of Freddie Mac’s damages will be impossible to ascertain, and monetary damages will not\nbe an adequate remedy for Freddie Mac. Therefore, Executive agrees that in the event of a breach or threat of breach of any\nprovision(s) of this Agreement, Freddie Mac, in addition to any other relief available, shall be entitled to temporary, preliminary, and\npermanent equitable relief to restrain any such breach or threat of breach by Executive and all persons acting for and/or in concert\nwith Executive, without the necessity of posting bond or security, which Executive expressly waives.\nC. Executive agrees that each of Executive’s obligations specified in this Agreement is a separate and independent covenant,\nand that all of Executive’s obligations set forth herein shall survive any termination, for any reason, of Executive’s Freddie Mac\nemployment. To the extent that any provision of this Agreement is determined by a court of competent jurisdiction to be\nunenforceable because it is overbroad, that provision shall be limited and enforced to the extent permitted by applicable law. Should\nany provision of this Agreement be declared or determined by any court of competent jurisdiction to be unenforceable or invalid\nunder applicable law, the validity of the remaining obligations will not be affected thereby and only the unenforceable or invalid\nobligation will be deemed not to be a part of this Agreement.\nD. This Agreement is governed by, and will be construed in accordance with, the laws of the Commonwealth of Virginia,\nwithout regard to its or any other jurisdiction’ 5 conflict-of-law provisions. Executive agrees that any action related to or arising out of\nthis Agreement shall be brought exclusively in the United States District Court for the Eastern District of Virginia, and Executive\nhereby irrevocably consents to personal jurisdiction and venue in such court and to service of process by United States Mail or\nexpress courier service in any such action.\nE. If any dispute(s) arise(s) between Freddie Mac and Executive with respect to any matter which is the subject of this\nAgreement, the prevailing party in such dispute(s) shall be entitled to recover from the other party all of its costs and expenses,\nincluding its reasonable attorneys’ fees.\nExecutive has been advised to discuss all aspects of this Agreement with Executive’s private attorney. Executive\nacknowledges that Executive has carefully read and understands the terms and provisions of this Agreement and that they\nare reasonable. Executive signs this Agreement voluntarily and accepts all obligations contained in this Agreement in\nexchange for the consideration to be given to Executive as outlined above, which Executive acknowledges is adequate\nand satisfactory, and which Executive further acknowledges Freddie Mac is not otherwise obligated to provide to Executive.\nNeither Freddie Mac nor its agents, representatives, directors, officers or employees have made any representations to\nExecutive concerning the terms or effects of this Agreement, other than those contained in this Agreement.\nBy: /s/ Donald H. Layton Date: May 7, 2012\nDona d H. Layton	Exhibit 10.2\nCorporate Headquarters\nTel: (703) 918-5000\n8250 J ones Branch Drive\nwww.FreddieMac.com\nMcLean, VA 22102\nRESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT\nIn exchange for the mutual promises and consideration set forth below, this Restrictive Covenant and Confidentiality Agreement\n"Agreement") is entered into by and between the Federal Home Loan Mortgage Corporation ("Freddie Mac" or "Company") and\nDonald H. Layton ("Executive" or "you"), effective as of May 21, 2012. To the extent that any required approval of this A greement\nor the employment agreement of which this A greement forms a part is not obtained, this A greement shall be null and void in all\nrespects and you shall have no further obligations under this greement, the employment agreement or any other plan, policy or\nprogram of Freddie Mac.\nI.\nDefinitions\nThe following terms shall have the meanings indicated when used in this A greement.\nA.\nProhibited Competition: Considering offers of employment from, seeking or accepting employment with, directly or\nindirectly providing professional services to, becoming a director of, or being an investor (representing more than a five (5) percent\nequity interest) in, (i) Fannie Mae (ii) all Federal Home Loan Banks (including the Office of Finance); and (iii) such other entities to\nwhich the Executive and the Company may agree in writing from time-to-time.\nB.\nConfidentia Information: Information or materials in written, oral, magnetic, digital, computer, photographic, optical,\nelectronic, or other form, whether now existing or developed or created during the period of Executive's employment with Freddie\nMac, that constitutes trade secrets and/or proprietary or confidential information. This information includes, but is not limited to:\n(i) all information marked Proprietary or Confidential; (ii) information concerning the components, capabilities, and attributes of\nFreddie Mac's business plans, methods, and strategies; (iii) information relating to tactics, plans, or strategies concerning\nshareholders, investors, pricing, investment, marketing, sales, trading, funding, hedging, modeling, sales and risk management;\n(iv) financial or tax information and analyses, including but not limited to, information concerning Freddie Mac's capital structure\nand tax or financial planning; (v) confidential information about Freddie Mac's customers, borrowers, employees, or others;\n(vi) pricing and quoting information, policies, procedures, and practices; (vii) confidential customer lists; (viii) proprietary\nalgorithms; (ix) confidential contract terms; (x) confidential information concerning Freddie Mac's policies, procedures, and\npractices or the way in which Freddie Mac does business; (xi) proprietary or confidential data bases, including their structure and\ncontent; (xii) proprietary Freddie Mac business software, including its design, specifications and documentation; (xiii) information\nabout Freddie Mac products, programs, and services which has not yet been made public; (xiv) confidential information about\nFreddie Mac's dealings with third parties, including dealers, customers, vendors, and regulators; and/or (xv) confidential information\nbelonging to third parties to which Executive received access in connection with Executive's employment with Freddie Mac.\nConfidential Information does not include general skills, experience, or knowledge acquired in connection with Executive's\nemployment with Freddie Mac that otherwise are generally known to the public or within the industry or trade in which Freddie Mac\noperates.\nII.\nompetition\nExecutive recognizes that as a result of Executive's employment with Freddie Mac, Executive has access to and knowledge of\ncritically sensitive Confidential Information, the improper disclosure or use of which would result in grave competitive harm to\nFreddie Mac. Therefore, Executive agrees that during\n2\nExecutive's employment with Freddie Mac and for twenty-four (24) months immediately following termination of Executive's\nemployment for any reason, Executive shall not engage in Prohibited Competition Executive acknowledges and agrees that this\ncovenant has unique, substantial and immeasurable value to Freddie Mac, that Executive has sufficient skills to provide a livelihood\nfor Executive while this covenant remains in force, and that this covenant will not interfere with Executive's ability to work\nconsistent with Executive's experience, training and education. This non-competition covenant applies regardless of whether\nExecutive's employment is terminated by Executive, by Freddie Mac, or by a joint decision.\nIII.\nNon-Solicitation and Non-Recruitment\nDuring Executive's employment with Freddie Mac and for a period of twelve (12) months after Executive's termination of\nemployment for any reason, Executive shall not directly or indirectly, on his own behalf of or on behalf of any other person,\ncorporation, partnership, firm, financial institution or other business entity, recruit or solicit or attempt to recruit or solicit or assist\nanother to recruit or solicit any person (who at such time is employed as a Freddie Mac officer (or equivalent)) to cease their\nemployment relationship with Freddie Mac for the purpose of their being employed by or providing professional services to any other\nentity or person; provided that this section shall not be construed as a prohibition on the ability of Executive to provide a reference to\nany person or entity with which Executive has no affiliation provided the Freddie Mac employee has notified Freddie Mac of his or\nher intent to terminate their employment with Freddie Mac.\nIV.\nTreatment of Confidential Information\nA.\nNon-Disclosure. Executive recognizes that Freddie Mac is engaged in an extremely competitive business and that, in the\ncourse of performing Executive's job duties, Executive will have access to and gain knowledge about Confidential Information.\nExecutive further recognizes the importance of carefully protecting this Confidential Information in order for Freddie Mac\nto\ncompete successfully. Therefore, Executive agrees that Executive will neither divulge Confidential Information to any persons,\nincluding to other Freddie Mac employees who do not have a Freddie Mac business-related need to know, nor make use of the\nConfidential Information for the Executive's own benefit or for the benefit of anyone else other than Freddie Mac. Executive further\nagrees to take all reasonable precautions to prevent the disclosure of Confidential Information to unauthorized persons or entities, and\nto comply with all Company policies, procedures, and instructions regarding the treatment of such information.\nB.\nReturn of Materials. Executive agrees that upon termination of Executive's employment with Freddie Mac for any reason\nwhatsoever, Executive will deliver to Freddie Mac's General Counsel all tangible materials embodying Confidential Information,\nincluding, but not limited to, any documentation, records, listings, notes, files, data sketches, memoranda, models, accounts,\nreference materials, samples, machine-readable media, computer disks, tapes, and equipment which in any way relate to Confidential\nInformation, whether developed by Executive or not. Executive further agrees not to retain any copies of any materials embodying\nConfidential Information.\nC.\nPost-Termination Obligations Executive agrees that after the termination of Executive's employment for any reason,\nExecutive will not use in any way whatsoever, nor disclose any Confidential Information learned or obtained in connection with\nExecutive's employment with Freddie Mac without first obtaining the written permission of the Senior Vice President of Human\nResources of Freddie Mac. Executive further agrees that, in order to assure the continued confidentiality of the Confidential\nInformation, Freddie Mac may correspond with Executive's future employers to advise them generally of Executive's exposure to\nand\nknowledge\nof\nConfidential\nInformation,\nand\nExecutive's\nobligations\nand\nresponsibilities\nregarding\nthe\nConfidential\nInformation.\nExecutive understands and agrees that any such contact may include a request for assurance and confirmation from such employer(s)\nthat Executive will not disclose Confidential Information to such employer(s), nor will such employer(s) permit any use\n3\nwhatsoever of the Confidential Information. To enable Freddie Mac to monitor compliance with the obligations imposed by this\ngreement, Executive further agrees to inform in writing Freddie Mac's Senior Vice President of Human Resources of the identity of\nExecutive's subsequent employer(s) and Executive's prospective job title and responsibilities prior to beginning employment.\nExecutive agrees that this notice requirement shall remain in effect for twelve (12) months following the termination of Executive's\nFreddie Mac employment.\nD.\nAbility to Enforce Agreement and Assist Government Investigations Nothing in this greement prohibits or otherwise\nrestricts you from: (1) making any disclosure of information required by law; (2) assisting any regulatory or law enforcement agency\nor\nlegislative\nbody\nto\nthe\nextent\nyou\nmaintain\na\nlegal\nright\nto\ndo\nso\nnotwithstanding\nthis\nA\ngreement;\n(3)\nfiling,\ntestifying,\nparticipating\nin or otherwise assisting in a proceeding relating to the alleged violation of any federal, state, or local law, regulation, or rule, to the\nextent you maintain a legal right to do so notwithstanding this A greement; (4) filing, testifying, participating in or otherwise assisting\nthe Securities and Exchange Commission or any other proper authority in a proceeding relating to allegations of fraud, (5) enforcing\nany rights or defending any claims hereunder or under the employment agreement or any plan or program of Freddie Mac, or\n(6) making any disclosure with the prior written consent of the Board.\nV.\nConsideration iven to Executive\nIn exchange for agreeing to be bound by the terms, conditions, and restrictions stated in this A greement, Freddie Mac will provide the\nExecutive with the following consideration, which itself is adequate consideration for Executive's agreement to be bound by the\nprovisions of this A greement:\nCompensation. Freddie Mac has agreed to hire and to compensate Executive as its Chief Executive Officer pursuant to the\nterms and conditions set forth in the May 7, 2012 memorandum between Executive and Freddie Mac.\nVI.\nompliance with the Code of Conduct and Corporate Policies, Including Personal Securities\nInvestments Policy\nAs\na\nFreddie Mac employee, Executive will be subject to Freddie Mac's Code of Conduct ("Code") and to Corporate Policy 3-206,\nPersonal Securities Investments Policy ("Policy") that, among other things, limit the investment activities of Freddie Mac employees.\nExecutive agrees to fully comply with the Code and the Policy.\nVII.\nAbsence of Any Conflict of Interest\nOther than as disclosed in the Executive's D&O Questionnaire that was previously provided to you, (i) Executive represents that\nExecutive does not have any confidential information, trade secrets or other proprietary information that Executive obtained as the\nresult of Executive's employment with another employer that Executive will be using in Executive's position at Freddie Mac; and\n(ii) Executive also represents that Executive is not subject to any employment, confidentiality or stock grant agreements, or any other\nrestrictions or limitations imposed by a prior employer, which would affect Executive's ability to perform the duties and\nresponsibilities of Chief Executive Officer of Freddie Mac and that Executive has provided Freddie Mac with copies of any such\nagreements or limitations so that Freddie Mac can make an independent judgment that Executive's employment with Freddie Mac is\nnot inconsistent with any of its terms.\nVIII.\nEffect of Termination of Employment\nIn the event that your employment terminates for any reason, you agree that you shall be deemed to have resigned, effective as of the\ndate of such termination of employment with Freddie Mac, as a member of\n4\nFreddie Mac's Board of Directors and from all positions, titles, duties, authorities and responsibilities arising out of or relating to\nyour employment or such Board membership, including any directorships or fiduciary positions to which you were serving at the\nrequest of, or appointment by, Freddie Mac. Y ou also agree that you will execute any such documents and take any such further steps\nas Freddie Mac's Board of Directors reasonably may ask of you to effectuate such resignations\nIX.\nReservation of Rights\nThis A greement in not intended, nor shall it be interpreted, to constitute a contract of employment for a specified duration. Y our\nemployment is "at-will" and each of you and Freddie Mac retain the discretion to terminate the employment relationship at any time\nfor any lawful reason with or without notice.\nX.\nEnforcement\nA.\nExecutive acknowledges that Executive may be subject to discipline, up to and including termination of employment, for\nExecutive's breach or threat of breach of any provision of this A greement.\nB.\nExecutive agrees that irreparable injury will result to Freddie Mac's business interests in the event of breach or threatened\nbreach of this greement, the full extent of Freddie Mac's damages will be impossible to ascertain, and monetary damages will not\nbe an adequate remedy for Freddie Mac. Therefore, Executive agrees that in the event of a breach or threat of breach of any\nprovision(s) of this greement, Freddie Mac, in addition to any other relief available, shall be entitled to temporary, preliminary, and\npermanent equitable relief to restrain any such breach or threat of breach by Executive and all persons acting for and/or in concert\nwith Executive, without the necessity of posting bond or security, which Executive expressly waives.\nC.\nExecutive agrees that each of Executive's obligations specified in this greement is a separate and independent covenant,\nand that all of Executive's obligations set forth herein shall survive any termination, for any reason, of Executive's Freddie Mac\nemployment. To the extent that any provision of this A greement is determined by a court of competent jurisdiction to be\nunenforceable because it is overbroad, that provision shall be limited and enforced to the extent permitted by applicable law. Should\nany provision of this A greement be declared or determined by any court of competent jurisdiction to be unenforceable or invalid\nunder applicable law, the validity of the remaining obligations will not be affected thereby and only the unenforceable or invalid\nobligation will be deemed not to be a part of this A greement.\nD.\nThis A greement is governed by, and will be construed in accordance with, the laws of the Commonwealth of Virginia,\nwithout regard to its or any other jurisdiction's conflict-of-law provisions. Executive agrees that any action related to or arising out of\nthis A greement shall be brought exclusively in the United States District Court for the Eastern District of Virginia, and Executive\nhereby irrevocably consents to personal jurisdiction and venue in such court and to service of process by United States Mail or\nexpress courier service in any such action.\nE.\nIf any dispute(s) arise(s) between Freddie Mac and Executive with respect to any matter which is the subject of this\nA greement, the prevailing party in such dispute(s) shall be entitled to recover from the other party all of its costs and expenses,\nincluding its reasonable attorneys' fees.\nExecutive has been advised to discuss all aspects of this Agreement with Executive's private attorney. Executive\nacknowledges that Executive has carefully read and understands the terms and provisions of this Agreement and that they\nare reasonable. Executive signs this Agreement voluntarily and accepts all obligations contained in this Agreement in\nexchange for the consideration to be given to Executive as outlined above, which Executive acknowledges is adequate\n5\nand satisfactory, and which Executive further acknowledges Freddie Mac is not otherwise obligated to provide to Executive.\nNeither Freddie Mac nor its agents, representatives, directors, officers or employees have made any representations to\nExecutive concerning the terms or effects of this Agreement, other than those contained in this Agreement.\nBy:\n/s/ Donald H. Layton\nDate:\nMay 7, 2012\nDonald H. Layton	Exhibit 10.2\nCorporate Headquarters\n8250 Jones Branch Drive\nMcLean, VA 22102\nTel: (703) 918-5000\nwww.FreddieMac.com\nRESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT\nIn exchange for the mutual promises and consideration set forth below, this Restrictive Covenant and Confidentiality Agreement\n(“Agreement”) is entered into by and between the Federal Home Loan Mortgage Corporation (“Freddie Mac” or “Company”) and\nDonald H. Layton (“Executive” or “you”), effective as of May 21, 2012. To the extent that any required approval of this Agreement\nor the employment agreement of which this Agreement forms a part is not obtained, this Agreement shall be null and void in all\nrespects and you shall have no further obligations under this Agreement, the employment agreement or any other plan, policy or\nprogram of Freddie Mac.\nI.\nDefinitions\nThe following terms shall have the meanings indicated when used in this Agreement.\nA.\nProhibited Competition: Considering offers of employment from, seeking or accepting employment with, directly or\nindirectly providing professional services to, becoming a director of, or being an investor (representing more than a five (5) percent\nequity interest) in, (i) Fannie Mae (ii) all Federal Home Loan Banks (including the Office of Finance); and (iii) such other entities to\nwhich the Executive and the Company may agree in writing from time-to-time.\nB.\nConfidential Information: Information or materials in written, oral, magnetic, digital, computer, photographic, optical,\nelectronic, or other form, whether now existing or developed or created during the period of Executive’s employment with Freddie\nMac, that constitutes trade secrets and/or proprietary or confidential information. This information includes, but is not limited to:\n(i) all information marked Proprietary or Confidential; (ii) information concerning the components, capabilities, and attributes of\nFreddie Mac’s business plans, methods, and strategies; (iii) information relating to tactics, plans, or strategies concerning\nshareholders, investors, pricing, investment, marketing, sales, trading, funding, hedging, modeling, sales and risk management;\n(iv) financial or tax information and analyses, including but not limited to, information concerning Freddie Mac’s capital structure\nand tax or financial planning; (v) confidential information about Freddie Mac’s customers, borrowers, employees, or others;\n(vi) pricing and quoting information, policies, procedures, and practices; (vii) confidential customer lists; (viii) proprietary\nalgorithms; (ix) confidential contract terms; (x) confidential information concerning Freddie Mac’s policies, procedures, and\npractices or the way in which Freddie Mac does business; (xi) proprietary or confidential data bases, including their structure and\ncontent; (xii) proprietary Freddie Mac business software, including its design, specifications and documentation; (xiii) information\nabout Freddie Mac products, programs, and services which has not yet been made public; (xiv) confidential information about\nFreddie Mac’s dealings with third parties, including dealers, customers, vendors, and regulators; and/or (xv) confidential information\nbelonging to third parties to which Executive received access in connection with Executive’s employment with Freddie Mac.\nConfidential Information does not include general skills, experience, or knowledge acquired in connection with Executive’s\nemployment with Freddie Mac that otherwise are generally known to the public or within the industry or trade in which Freddie Mac\noperates.\nII.\nNon-Competition\nExecutive recognizes that as a result of Executive’s employment with Freddie Mac, Executive has access to and knowledge of\ncritically sensitive Confidential Information, the improper disclosure or use of which would result in grave competitive harm to\nFreddie Mac. Therefore, Executive agrees that during\n2\nExecutive’s employment with Freddie Mac and for twenty-four (24) months immediately following termination of Executive’s\nemployment for any reason, Executive shall not engage in Prohibited Competition. Executive acknowledges and agrees that this\ncovenant has unique, substantial and immeasurable value to Freddie Mac, that Executive has sufficient skills to provide a livelihood\nfor Executive while this covenant remains in force, and that this covenant will not interfere with Executive’s ability to work\nconsistent with Executive’s experience, training and education. This non-competition covenant applies regardless of whether\nExecutive’s employment is terminated by Executive, by Freddie Mac, or by a joint decision.\nIII.\nNon-Solicitation and Non-Recruitment\nDuring Executive’s employment with Freddie Mac and for a period of twelve (12) months after Executive’s termination of\nemployment for any reason, Executive shall not directly or indirectly, on his own behalf of or on behalf of any other person,\ncorporation, partnership, firm, financial institution or other business entity, recruit or solicit or attempt to recruit or solicit or assist\nanother to recruit or solicit any person (who at such time is employed as a Freddie Mac officer (or equivalent)) to cease their\nemployment relationship with Freddie Mac for the purpose of their being employed by or providing professional services to any other\nentity or person; provided that this section shall not be construed as a prohibition on the ability of Executive to provide a reference to\nany person or entity with which Executive has no affiliation provided the Freddie Mac employee has notified Freddie Mac of his or\nher intent to terminate their employment with Freddie Mac.\nIV.\nTreatment of Confidential Information\nA.\nNon-Disclosure. Executive recognizes that Freddie Mac is engaged in an extremely competitive business and that, in the\ncourse of performing Executive’s job duties, Executive will have access to and gain knowledge about Confidential Information.\nExecutive further recognizes the importance of carefully protecting this Confidential Information in order for Freddie Mac to\ncompete successfully. Therefore, Executive agrees that Executive will neither divulge Confidential Information to any persons,\nincluding to other Freddie Mac employees who do not have a Freddie Mac business-related need to know, nor make use of the\nConfidential Information for the Executive’s own benefit or for the benefit of anyone else other than Freddie Mac. Executive further\nagrees to take all reasonable precautions to prevent the disclosure of Confidential Information to unauthorized persons or entities, and\nto comply with all Company policies, procedures, and instructions regarding the treatment of such information.\nB.\nReturn of Materials. Executive agrees that upon termination of Executive’s employment with Freddie Mac for any reason\nwhatsoever, Executive will deliver to Freddie Mac’s General Counsel all tangible materials embodying Confidential Information,\nincluding, but not limited to, any documentation, records, listings, notes, files, data, sketches, memoranda, models, accounts,\nreference materials, samples, machine-readable media, computer disks, tapes, and equipment which in any way relate to Confidential\nInformation, whether developed by Executive or not. Executive further agrees not to retain any copies of any materials embodying\nConfidential Information.\nC.\nPost-Termination Obligations. Executive agrees that after the termination of Executive’s employment for any reason,\nExecutive will not use in any way whatsoever, nor disclose any Confidential Information learned or obtained in connection with\nExecutive’s employment with Freddie Mac without first obtaining the written permission of the Senior Vice President of Human\nResources of Freddie Mac. Executive further agrees that, in order to assure the continued confidentiality of the Confidential\nInformation, Freddie Mac may correspond with Executive’s future employers to advise them generally of Executive’s exposure to\nand knowledge of Confidential Information, and Executive’s obligations and responsibilities regarding the Confidential Information.\nExecutive understands and agrees that any such contact may include a request for assurance and confirmation from such employer(s)\nthat Executive will not disclose Confidential Information to such employer(s), nor will such employer(s) permit any use\n3\nwhatsoever of the Confidential Information. To enable Freddie Mac to monitor compliance with the obligations imposed by this\nAgreement, Executive further agrees to inform in writing Freddie Mac’s Senior Vice President of Human Resources of the identity of\nExecutive’s subsequent employer(s) and Executive’s prospective job title and responsibilities prior to beginning employment.\nExecutive agrees that this notice requirement shall remain in effect for twelve (12) months following the termination of Executive’s\nFreddie Mac employment.\nD.\nAbility to Enforce Agreement and Assist Government Investigations. Nothing in this Agreement prohibits or otherwise\nrestricts you from: (1) making any disclosure of information required by law; (2) assisting any regulatory or law enforcement agency\nor legislative body to the extent you maintain a legal right to do so notwithstanding this Agreement; (3) filing, testifying, participating\nin or otherwise assisting in a proceeding relating to the alleged violation of any federal, state, or local law, regulation, or rule, to the\nextent you maintain a legal right to do so notwithstanding this Agreement; (4) filing, testifying, participating in or otherwise assisting\nthe Securities and Exchange Commission or any other proper authority in a proceeding relating to allegations of fraud, (5) enforcing\nany rights or defending any claims hereunder or under the employment agreement or any plan or program of Freddie Mac, or\n(6) making any disclosure with the prior written consent of the Board.\nV.\nConsideration Given to Executive\nIn exchange for agreeing to be bound by the terms, conditions, and restrictions stated in this Agreement, Freddie Mac will provide the\nExecutive with the following consideration, which itself is adequate consideration for Executive’s agreement to be bound by the\nprovisions of this Agreement:\n•\nCompensation. Freddie Mac has agreed to hire and to compensate Executive as its Chief Executive Officer pursuant to the\nterms and conditions set forth in the May 7, 2012 memorandum between Executive and Freddie Mac.\nVI.\nCompliance with the Code of Conduct and Corporate Policies, Including Personal Securities\nInvestments Policy\nAs a Freddie Mac employee, Executive will be subject to Freddie Mac’s Code of Conduct (“Code”) and to Corporate Policy 3-206,\nPersonal Securities Investments Policy (“Policy”) that, among other things, limit the investment activities of Freddie Mac employees.\nExecutive agrees to fully comply with the Code and the Policy.\nVII.\nAbsence of Any Conflict of Interest\nOther than as disclosed in the Executive’s D&O Questionnaire that was previously provided to you, (i) Executive represents that\nExecutive does not have any confidential information, trade secrets or other proprietary information that Executive obtained as the\nresult of Executive’s employment with another employer that Executive will be using in Executive’s position at Freddie Mac; and\n(ii) Executive also represents that Executive is not subject to any employment, confidentiality or stock grant agreements, or any other\nrestrictions or limitations imposed by a prior employer, which would affect Executive’s ability to perform the duties and\nresponsibilities of Chief Executive Officer of Freddie Mac and that Executive has provided Freddie Mac with copies of any such\nagreements or limitations so that Freddie Mac can make an independent judgment that Executive’s employment with Freddie Mac is\nnot inconsistent with any of its terms.\nVIII.\nEffect of Termination of Employment\nIn the event that your employment terminates for any reason, you agree that you shall be deemed to have resigned, effective as of the\ndate of such termination of employment with Freddie Mac, as a member of\n4\nFreddie Mac’s Board of Directors and from all positions, titles, duties, authorities and responsibilities arising out of or relating to\nyour employment or such Board membership, including any directorships or fiduciary positions to which you were serving at the\nrequest of, or appointment by, Freddie Mac. You also agree that you will execute any such documents and take any such further steps\nas Freddie Mac’s Board of Directors reasonably may ask of you to effectuate such resignations.\nIX.\nReservation of Rights\nThis Agreement in not intended, nor shall it be interpreted, to constitute a contract of employment for a specified duration. Your\nemployment is “at-will” and each of you and Freddie Mac retain the discretion to terminate the employment relationship at any time\nfor any lawful reason with or without notice.\nX.\nEnforcement\nA.\nExecutive acknowledges that Executive may be subject to discipline, up to and including termination of employment, for\nExecutive’s breach or threat of breach of any provision of this Agreement.\nB.\nExecutive agrees that irreparable injury will result to Freddie Mac’s business interests in the event of breach or threatened\nbreach of this Agreement, the full extent of Freddie Mac’s damages will be impossible to ascertain, and monetary damages will not\nbe an adequate remedy for Freddie Mac. Therefore, Executive agrees that in the event of a breach or threat of breach of any\nprovision(s) of this Agreement, Freddie Mac, in addition to any other relief available, shall be entitled to temporary, preliminary, and\npermanent equitable relief to restrain any such breach or threat of breach by Executive and all persons acting for and/or in concert\nwith Executive, without the necessity of posting bond or security, which Executive expressly waives.\nC.\nExecutive agrees that each of Executive’s obligations specified in this Agreement is a separate and independent covenant,\nand that all of Executive’s obligations set forth herein shall survive any termination, for any reason, of Executive’s Freddie Mac\nemployment. To the extent that any provision of this Agreement is determined by a court of competent jurisdiction to be\nunenforceable because it is overbroad, that provision shall be limited and enforced to the extent permitted by applicable law. Should\nany provision of this Agreement be declared or determined by any court of competent jurisdiction to be unenforceable or invalid\nunder applicable law, the validity of the remaining obligations will not be affected thereby and only the unenforceable or invalid\nobligation will be deemed not to be a part of this Agreement.\nD.\nThis Agreement is governed by, and will be construed in accordance with, the laws of the Commonwealth of Virginia,\nwithout regard to its or any other jurisdiction’s conflict-of-law provisions. Executive agrees that any action related to or arising out of\nthis Agreement shall be brought exclusively in the United States District Court for the Eastern District of Virginia, and Executive\nhereby irrevocably consents to personal jurisdiction and venue in such court and to service of process by United States Mail or\nexpress courier service in any such action.\nE.\nIf any dispute(s) arise(s) between Freddie Mac and Executive with respect to any matter which is the subject of this\nAgreement, the prevailing party in such dispute(s) shall be entitled to recover from the other party all of its costs and expenses,\nincluding its reasonable attorneys’ fees.\nExecutive has been advised to discuss all aspects of this Agreement with Executive’s private attorney. Executive\nacknowledges that Executive has carefully read and understands the terms and provisions of this Agreement and that they\nare reasonable. Executive signs this Agreement voluntarily and accepts all obligations contained in this Agreement in\nexchange for the consideration to be given to Executive as outlined above, which Executive acknowledges is adequate\n5\nand satisfactory, and which Executive further acknowledges Freddie Mac is not otherwise obligated to provide to Executive.\nNeither Freddie Mac nor its agents, representatives, directors, officers or employees have made any representations to\nExecutive concerning the terms or effects of this Agreement, other than those contained in this Agreement.\nBy:\n/s/ Donald H. Layton\nDate: May 7, 2012\nDonald H. Layton
+b82a10c42fc284dba9870ac7c75cd386.pdf	effective_date jurisdiction party term	EX-10.29 4 cxw-ex1029_421.htm EX-10.29\nExhibit 10.29\n[CoreCivic Letterhead]\nDecember 31, 2017\nHarley G. Lappin\nCoreCivic, Inc.\n10 Burton Hills Boulevard\nNashville, TN 37215\nRe:\nNon-Competition, Non-Solicitation and Confidentiality and Non-Disclosure during your “at-will”\nemployment with CoreCivic of Tennessee, LLC ("Employer")\nMr. Lappin:\nAs we've discussed, you previously notified CoreCivic, Inc. ("CoreCivic" and, collectively with Employer, the\n"Company") of your intention to retire from your position as Executive Vice President and Chief Corrections Officer effective\nJanuary 1, 2018. Your Employment Agreement with the Company expires effective December 31, 2017. However,\nnotwithstanding the expiration of your Employment Agreement, the Company desires that you continue your employment with\nEmployer as an "at will" employee on terms and conditions established from time to time by the Employer.\nThis letter is to clarify and confirm that, in consideration of Employer continuing your employment on an "at will” basis\nwith an annual salary of $175,000.00, which shall be payable in accordance with Employer’s normal payroll practices, you agree to\nbe bound by and to comply with the provisions regarding non-competition, non-solicitation and confidentiality and non-disclosure\nset forth on Exhibit A accompanying this letter.\nPlease confirm your acknowledgement of and agreement with the foregoing by reviewing and signing this letter in the\nspace provided below.\nVery truly yours,\nCORECIVIC, INC.\nBy: /s/ Damon T. Hininger\nDamon T. Hininger\nPresident and Chief Executive Officer\nConfirmed and Agreed as\nof the date written above:\n/s/ Harley G. Lappin\nHarley G. Lappin\nExhibit A\nNon-Competition, Non-Solicitation and Confidentiality and Non-Disclosure\n1.\nBusiness Considerations. All confidential or proprietary information, including but not limited to, any programs, plans or\ndesigns whether in hard copy or electronic format developed by, at the direction of, or with the assistance and/or collaboration of\nHarley G. Lappin ("Employee") during his employment with CoreCivic of Tennessee, LLC (together with its parent, subsidiaries\nand affiliates, the "Company"), contract terms, financial information, operating data, staffing patterns, wage levels, quality\nassurance audit materials and techniques, customer lists, supplier lists, pricing policies, marketing plans, business plans or models,\nmarketing or lobbying information and all other information (the “Confidential & Proprietary Information”), and all other tangible\nor intangible items or ideas making up the Confidential & Proprietary Information owned or developed by or related to the\nCompany, and the goodwill associated with them, which (i) is or was obtained or created by Employee in whole or in part as a result\nof his employment with the Company, and (ii) is not generally available to the public, shall remain the sole and exclusive property\nof the Company.\n2.\nNon-Competition, Non-Solicitation. Employee hereby covenants and agrees that during the term of Employee’s\nemployment with the Company and for a period of one (1) year thereafter, Employee shall not, directly or indirectly: (i) own any\ninterest in, operate, join, control or participate as a partner, director, principal, officer or agent of, enter into the employment of, act\nas a consultant to, or perform any services for any entity (each a “Competing Entity”) which has material operations which compete\nwith any business in which the Company or any of its subsidiaries is then engaged or, to the then existing knowledge of Employee,\nproposes to engage; (ii) solicit any customer or client of the Company or any of its subsidiaries, affiliates, (other than on behalf of\nthe Company) with respect to any business in which the Company or any of its subsidiaries or affiliates is then engaged or, to the\nthen existing knowledge of Employee, proposes to engage; or (iii) induce or encourage any employee of the Company or any of its\nsubsidiaries to leave the employ of the Company or any of its subsidiaries; provided, that Employee may, solely as an investment,\nhold not more than five percent (5%) of the combined voting securities of any publicly-traded corporation or other business entity.\nThe foregoing covenants and agreements of Employee are referred to herein as the “Restrictive Covenant.” Employee\nacknowledges that Employee has carefully read and considered the provisions of the Restrictive Covenant and, having done so,\nagrees that the restrictions set forth herein , including without limitation the time period of restriction set forth above, are fair and\nreasonable and are reasonably required for the protection of the legitimate business and economic interests of the Company.\nEmployee further acknowledges that the Company would not have continued Employee's employment with the Company on an "at\nwill" basis absent Employee’s agreement to the foregoing. In the event that, notwithstanding the foregoing, any of the provisions of\nthis Exhibit A or any parts hereof shall be held to be invalid or unenforceable, the remaining provisions or parts hereof shall\nnevertheless continue to be valid and enforceable as though the invalid or unenforceable portions or parts had not been included\nherein. In the event that any provision of this Exhibit A relating to the time period and/or the area of restriction, if any, and/or\nrelated aspects shall be declared by a court of competent jurisdiction to exceed the maximum restrictiveness such court deems\nreasonable and enforceable, the time period and/or area of restriction and/or related aspects deemed reasonable and enforceable by\nsuch court shall become and thereafter be the maximum restrictions in such regard, and the provisions of the Restrictive Covenant\nshall remain enforceable to the fullest extent deemed reasonable by such court.\n3.\nConfidentiality and Non-Disclosure. In consideration of the continuation of Employee's employment with the Company\non an "at will" basis, Employee agrees that during the term of employment with the Company and thereafter to hold in confidence\nthe Company's Confidential and Proprietary Information, whether communicated orally or in documentary or other tangible form.\nEmployee recognizes that the Company has invested considerable amounts of time and money in attaining and developing all of the\ninformation described above, and any unauthorized disclosure or release of such Confidential and Proprietary Information in any\nform would irreparably harm the Company. Notwithstanding the foregoing, nothing in this Exhibit A limits rights of Employee to\nfile a charge or complaint with or from participating in an investigation or proceeding conducted by the Equal Employment\nOpportunity Commission, National Labor Relations Board, Occupational Safety and Health Administration, the Securities and\nExchange Commission, or any other any federal, state or local agency charged with the enforcement of any laws, including\nproviding documents or any other information.\n4.\nEquitable Relief. Employee agrees that it would be impossible to adequately compensate the Company and its\nsubsidiaries for the damage suffered by the Company or its subsidiaries as a result of Employee’s breach of any of the covenants\nand obligations set forth in this Exhibit A. Accordingly, Employee agrees that if Employee breaches any such covenants and\nobligations, the Company or its subsidiaries may, in addition to any other right or remedy available, obtain an injunction from a\ncourt of competent jurisdiction restraining such breach or threatened breach and to specific performance of any such provision of\nthis Exhibit A. Employee further agrees that no bond or other security shall be required in obtaining such equitable relief and\nEmployee hereby consents to the issuance of such injunction and to the ordering of specific performance.	EX-10.29 4 cxw-ex1029_421.htm EX-10.29\nExhibit 10.29\n[CoreCivic Letterhead]\nDecember 31, 2017\nHarley G. Lappin\nCoreCivic, Inc.\n10 Burton Hills Boulevard\nNashville, TN 37215\nRe: Non-Competition, Non-Solicitation and Confidentiality and Non-Disclosure during your “at-will”\nemployment with CoreCivic of Tennessee, LL.C ("Employer")\nMr. Lappin:\nAs we've discussed, you previously notified CoreCivic, Inc. ("CoreCivic" and, collectively with Employer, the\n"Company") of your intention to retire from your position as Executive Vice President and Chief Corrections Officer effective\nJanuary 1, 2018. Your Employment Agreement with the Company expires effective December 31, 2017. However,\nnotwithstanding the expiration of your Employment Agreement, the Company desires that you continue your employment with\nEmployer as an "at will" employee on terms and conditions established from time to time by the Employer.\nThis letter is to clarify and confirm that, in consideration of Employer continuing your employment on an "at will” basis\nwith an annual salary of $175,000.00, which shall be payable in accordance with Employer’s normal payroll practices, you agree to\nbe bound by and to comply with the provisions regarding non-competition, non-solicitation and confidentiality and non-disclosure\nset forth on Exhibit A accompanying this letter.\nPlease confirm your acknowledgement of and agreement with the foregoing by reviewing and signing this letter in the\nspace provided below.\nVery truly yours,\nCORECIVIC, INC.\nBy: /s/ Damon T. Hininger\nDamon T. Hininger\nPresident and Chief Executive Officer\nConfirmed and Agreed as\nof the date written above:\n/s/ Harley G. Lappin\nHarley G. Lappin\nExhibit A\nNon-Competition, Non-Solicitation and Confidentiality and Non-Disclosure\n \n1. Business Considerations. All confidential or proprietary information, including but not limited to, any programs, plans or\ndesigns whether in hard copy or electronic format developed by, at the direction of, or with the assistance and/or collaboration of\nHarley G. Lappin ("Employee") during his employment with CoreCivic of Tennessee, LLC (together with its parent, subsidiaries\nand affiliates, the "Company"), contract terms, financial information, operating data, staffing patterns, wage levels, quality\nassurance audit materials and techniques, customer lists, supplier lists, pricing policies, marketing plans, business plans or models,\nmarketing or lobbying information and all other information (the “Confidential & Proprietary Information”), and all other tangible\nor intangible items or ideas making up the Confidential & Proprietary Information owned or developed by or related to the\nCompany, and the goodwill associated with them, which (i) is or was obtained or created by Employee in whole or in part as a result\nof his employment with the Company, and (ii) is not generally available to the public, shall remain the sole and exclusive property\nof the Company.\n2. Non-Competition, Non-Solicitation. Employee hereby covenants and agrees that during the term of Employee’s\nemployment with the Company and for a period of one (1) year thereafter, Employee shall not, directly or indirectly: (i) own any\ninterest in, operate, join, control or participate as a partner, director, principal, officer or agent of, enter into the employment of, act\nas a consultant to, or perform any services for any entity (each a “Competing Entity””) which has material operations which compete\nwith any business in which the Company or any of its subsidiaries is then engaged or, to the then existing knowledge of Employee,\nproposes to engage; (ii) solicit any customer or client of the Company or any of its subsidiaries, affiliates, (other than on behalf of\nthe Company) with respect to any business in which the Company or any of its subsidiaries or affiliates is then engaged or, to the\nthen existing knowledge of Employee, proposes to engage; or (iii) induce or encourage any employee of the Company or any of its\nsubsidiaries to leave the employ of the Company or any of its subsidiaries; provided, that Employee may, solely as an investment,\nhold not more than five percent (5%) of the combined voting securities of any publicly-traded corporation or other business entity.\nThe foregoing covenants and agreements of Employee are referred to herein as the “Restrictive Covenant.” Employee\nacknowledges that Employee has carefully read and considered the provisions of the Restrictive Covenant and, having done so,\nagrees that the restrictions set forth herein , including without limitation the time period of restriction set forth above, are fair and\nreasonable and are reasonably required for the protection of the legitimate business and economic interests of the Company.\nEmployee further acknowledges that the Company would not have continued Employee's employment with the Company on an "at\nwill" basis absent Employee’s agreement to the foregoing. In the event that, notwithstanding the foregoing, any of the provisions of\nthis Exhibit A or any parts hereof shall be held to be invalid or unenforceable, the remaining provisions or parts hereof shall\nnevertheless continue to be valid and enforceable as though the invalid or unenforceable portions or parts had not been included\nherein. In the event that any provision of this Exhibit A relating to the time period and/or the area of restriction, if any, and/or\nrelated aspects shall be declared by a court of competent jurisdiction to exceed the maximum restrictiveness such court deems\nreasonable and enforceable, the time period and/or area of restriction and/or related aspects deemed reasonable and enforceable by\nsuch court shall become and thereafter be the maximum restrictions in such regard, and the provisions of the Restrictive Covenant\nshall remain enforceable to the fullest extent deemed reasonable by such court.\n3. Confidentiality and Non-Disclosure. In consideration of the continuation of Employee's employment with the Company\non an "at will" basis, Employee agrees that during the term of employment with the Company and thereafter to hold in confidence\nthe Company's Confidential and Proprietary Information, whether communicated orally or in documentary or other tangible form.\nEmployee recognizes that the Company has invested considerable amounts of time and money in attaining and developing all of the\ninformation described above, and any unauthorized disclosure or release of such Confidential and Proprietary Information in any\nform would irreparably harm the Company. Notwithstanding the foregoing, nothing in this Exhibit A limits rights of Employee to\nfile a charge or complaint with or from participating in an investigation or proceeding conducted by the Equal Employment\nOpportunity Commission, National Labor Relations Board, Occupational Safety and Health Administration, the Securities and\nExchange Commission, or any other any federal, state or local agency charged with the enforcement of any laws, including\nproviding documents or any other information.\n4. Equitable Relief. Employee agrees that it would be impossible to adequately compensate the Company and its\nsubsidiaries for the damage suffered by the Company or its subsidiaries as a result of Employee’s breach of any of the covenants\nand obligations set forth in this Exhibit A. Accordingly, Employee agrees that if Employee breaches any such covenants and\nobligations, the Company or its subsidiaries may, in addition to any other right or remedy available, obtain an injunction from a\ncourt of competent jurisdiction restraining such breach or threatened breach and to specific performance of any such provision of\nthis Exhibit A. Employee further agrees that no bond or other security shall be required in obtaining such equitable relief and\nEmployee hereby consents to the issuance of such injunction and to the ordering of specific performance.	EX-10.29 4 cxW-ex1029_421.htm EX-10.29\nExhibit 10.29\n[CoreCivic Letterhead]\nDecember 31, 2017\nHarley G. Lappin\nCoreCivic, Inc.\n10 Burton Hills Boulevard\nNashville, TN 37215\nRe:\nNon-Competition, Non-Solicitation and Confidentiality and Non-Disclosure during your "at-will"\nemployment with CoreCivic of Tennessee, LLC ("Employer")\nMr. Lappin:\nAs we've discussed, you previously notified CoreCivic, Inc. ("CoreCivic" and, collectively with Employer, the\n"Company") of your intention to retire from your position as Executive Vice President and Chief Corrections Officer effective\nJanuary 1, 2018. Your Employment Agreement with the Company expires effective December 31, 2017. However,\nnotwithstanding the expiration of your Employment Agreement, the Company desires that you continue your employment with\nEmployer as an "at will" employee on terms and conditions established from time to time by the Employer.\nThis letter is to clarify and confirm that, in consideration of Employer continuing your employment on an "at will" basis\nwith an annual salary of $175,000.00, which shall be payable in accordance with Employer's normal payroll practices, you agree to\nbe bound by and to comply with the provisions regarding non-competition, non-solicitation and confidentiality and non-disclosure\nset forth on Exhibit A accompanying this letter.\nPlease confirm your acknowledgement of and agreement with the foregoing by reviewing and signing this letter in the\nspace provided below.\nVery truly yours,\nCORECIVIC, INC.\nBy: /s/ Damon T. Hininger\nDamon T. Hininger\nPresident and Chief Executive Officer\nConfirmed and Agreed as\nof the date written above:\n/s/ Harley G. Lappin\nHarley G. Lappin\nExhibit A\nNon-Competition, Non-Solicitation and Confidentiality. and Non-Disclosure\n1.\nBusiness Considerations. All confidentia or proprietary information, including but not limited to, any programs, plans or\ndesigns whether in hard copy or electronic format developed by, at the direction of, or with the assistance and/or collaboration of\nHarley G. Lappin ("Employee") during his employment with CoreCivic of Tennessee, LLC (together with its parent, subsidiaries\nand affiliates, the "Company"), contract terms, financial information, operating data, staffing patterns, wage levels, quality\nassurance audit materials and techniques, customer lists, supplier lists, pricing policies, marketing plans, business plans or models,\nmarketing or lobbying information and all other information (the "Confidential & Proprietary Information"), and all other tangible\nor intangible items or ideas making up the Confidential & Proprietary Information owned or developed by or related to the\nCompany, and the goodwill associated with them, which (i) is or was obtained or created by Employee in whole or in part as a result\nof his employment with the Company, and (ii) is not generally available to the public, shall remain the sole and exclusive property\nof the Company.\n2.\nNon-Competition, Non-Solicitation. Employee hereby covenants and agrees that during the term of Employee's\nemployment with the Company and for a period of one (1) year thereafter, Employee shall not, directly or indirectly: (i) own any\ninterest in, operate, join, control or participate as a partner, director, principal, officer or agent of, enter into the employment of,\nact\nas a consultant to, or perform any services for any entity (each a "Competing. Entity.") which has material operations which compete\nwith\nany\nbusiness\nin\nwhich\nthe\nCompany\nor\nany\nof\nits\nsubsidiaries\nis\nthen\nengaged\nor,\nto\nthe\nthen\nexisting\nknowledge\nof\nEmployee,\nproposes to engage; (ii) solicit any customer or client of the Company or any of its subsidiaries, affiliates, (other than on behalf of\nthe Company) with respect to any business in which the Company or any of its subsidiaries or affiliates is then engaged or, to the\nthen\nexisting\nknowledge\nof\nEmployee,\nproposes\nto\nengage;\nor\n(iii)\ninduce\nor\nencourage\nany\nemployee\nof\nthe\nCompany\nor\nany\nof\nits\nsubsidiaries to leave the employ of the Company or any of its subsidiaries; provided, that Employee may, solely as an investment,\nhold not more than five percent (5%) of the combined voting securities of any publicly-traded corporation or other business entity.\nThe foregoing covenants and agreements of Employee are referred to herein as the "Restrictive Covenant." Employee\nacknowledges that Employee has carefully read and considered the provisions of the Restrictive Covenant and, having done so,\nagrees that the restrictions set forth herein including without limitation the time period of restriction set forth above, are fair and\nreasonable and are reasonably required for the protection of the legitimate business and economic interests of the Company.\nEmployee further acknowledges that the Company would not have continued Employee's employment with the Company on an "at\nwill" basis absent Employee's agreement to the foregoing. In the event that, notwithstanding the foregoing, any of the provisions of\nthis Exhibit A or any parts hereof shall be held to be invalid or unenforceable, the remaining provisions or parts hereof shall\nnevertheless continue to be valid and enforceable as though the invalid or unenforceable portions or parts had not been included\nherein. In the event that any provision of this Exhibit A relating to the time period and/or the area of restriction, if any, and/or\nrelated aspects shall be declared by a court of competent jurisdiction to exceed the maximum restrictiveness such court deems\nreasonable and enforceable, the time period and/or area of restriction and/or related aspects deemed reasonable and enforceable\nby\nsuch court shall become and thereafter be the maximum restrictions in such regard, and the provisions of the Restrictive Covenant\nshall remain enforceable to the fullest extent deemed reasonable by such court.\n3.\nConfidentiality and Non-Disclosure. In consideration of the continuation of Employee's employment with the Company\non\nan "at will" basis, Employee agrees that during the term of employment with the Company and thereafter to hold in confidence\nthe Company's Confidential and Proprietary Information, whether communicated orally or in documentary or other tangible form.\nEmployee recognizes that the Company has invested considerable amounts of time and money in attaining and developing all of the\ninformation described above, and any unauthorized disclosure or release of such Confidential and Proprietary Information in any\nform would irreparably harm the Company. Notwithstanding the foregoing, nothing in this Exhibit A limits rights of Employee\nto\nfile a charge or complaint with or from participating in an investigation or proceeding conducted by the Equal Employment\nOpportunity Commission, National Labor Relations Board, Occupational Safety and Health Administration, the Securities and\nExchange Commission, or any other any federal, state or local agency charged with the enforcement of any laws, including\nproviding documents or any other information.\n4.\nEquitable Relief. Employee agrees that it would be impossible to adequately compensate the Company and\nits\nsubsidiaries for the damage suffered by the Company or its subsidiaries as a result of Employee's breach of any of the covenants\nand obligations set forth in this Exhibit A. Accordingly, Employee agrees that if Employee breaches any such covenants and\nobligations, the Company or its subsidiaries may, in addition to any other right or remedy available, obtain an injunction from a\ncourt of competent jurisdiction restraining such breach or threatened breach and to specific performance of any such provision of\nthis Exhibit A. Employee further agrees that no bond or other security shall be required in obtaining such equitable relief and\nEmployee hereby consents to the issuance of such injunction and to the ordering of specific performance.	EX-10.29 4 cxw-ex1029_421.htm EX-10.29\nExhibit 10.29\n[CoreCivic Letterhead]\nDecember 31, 2017\nHarley G. Lappin\nCoreCivic, Inc.\n10 Burton Hills Boulevard\nNashville, TN 37215\nRe:\nNon-Competition, Non-Solicitation and Confidentiality and Non-Disclosure during your “at-will”\nemployment with CoreCivic of Tennessee, LLC ("Employer")\nMr. Lappin:\nAs we've discussed, you previously notified CoreCivic, Inc. ("CoreCivic" and, collectively with Employer, the\n"Company") of your intention to retire from your position as Executive Vice President and Chief Corrections Officer effective\nJanuary 1, 2018. Your Employment Agreement with the Company expires effective December 31, 2017. However,\nnotwithstanding the expiration of your Employment Agreement, the Company desires that you continue your employment with\nEmployer as an "at will" employee on terms and conditions established from time to time by the Employer.\nThis letter is to clarify and confirm that, in consideration of Employer continuing your employment on an "at will” basis\nwith an annual salary of $175,000.00, which shall be payable in accordance with Employer’s normal payroll practices, you agree to\nbe bound by and to comply with the provisions regarding non-competition, non-solicitation and confidentiality and non-disclosure\nset forth on Exhibit A accompanying this letter.\nPlease confirm your acknowledgement of and agreement with the foregoing by reviewing and signing this letter in the\nspace provided below.\nVery truly yours,\nCORECIVIC, INC.\nBy: /s/ Damon T. Hininger\nDamon T. Hininger\nPresident and Chief Executive Officer\nConfirmed and Agreed as\nof the date written above:\n/s/ Harley G. Lappin\nHarley G. Lappin\nExhibit A\nNon-Competition, Non-Solicitation and Confidentiality and Non-Disclosure\n1.\nBusiness Considerations. All confidential or proprietary information, including but not limited to, any programs, plans or\ndesigns whether in hard copy or electronic format developed by, at the direction of, or with the assistance and/or collaboration of\nHarley G. Lappin ("Employee") during his employment with CoreCivic of Tennessee, LLC (together with its parent, subsidiaries\nand affiliates, the "Company"), contract terms, financial information, operating data, staffing patterns, wage levels, quality\nassurance audit materials and techniques, customer lists, supplier lists, pricing policies, marketing plans, business plans or models,\nmarketing or lobbying information and all other information (the “Confidential & Proprietary Information”), and all other tangible\nor intangible items or ideas making up the Confidential & Proprietary Information owned or developed by or related to the\nCompany, and the goodwill associated with them, which (i) is or was obtained or created by Employee in whole or in part as a result\nof his employment with the Company, and (ii) is not generally available to the public, shall remain the sole and exclusive property\nof the Company.\n2.\nNon-Competition, Non-Solicitation. Employee hereby covenants and agrees that during the term of Employee’s\nemployment with the Company and for a period of one (1) year thereafter, Employee shall not, directly or indirectly: (i) own any\ninterest in, operate, join, control or participate as a partner, director, principal, officer or agent of, enter into the employment of, act\nas a consultant to, or perform any services for any entity (each a “Competing Entity”) which has material operations which compete\nwith any business in which the Company or any of its subsidiaries is then engaged or, to the then existing knowledge of Employee,\nproposes to engage; (ii) solicit any customer or client of the Company or any of its subsidiaries, affiliates, (other than on behalf of\nthe Company) with respect to any business in which the Company or any of its subsidiaries or affiliates is then engaged or, to the\nthen existing knowledge of Employee, proposes to engage; or (iii) induce or encourage any employee of the Company or any of its\nsubsidiaries to leave the employ of the Company or any of its subsidiaries; provided, that Employee may, solely as an investment,\nhold not more than five percent (5%) of the combined voting securities of any publicly-traded corporation or other business entity.\nThe foregoing covenants and agreements of Employee are referred to herein as the “Restrictive Covenant.” Employee\nacknowledges that Employee has carefully read and considered the provisions of the Restrictive Covenant and, having done so,\nagrees that the restrictions set forth herein , including without limitation the time period of restriction set forth above, are fair and\nreasonable and are reasonably required for the protection of the legitimate business and economic interests of the Company.\nEmployee further acknowledges that the Company would not have continued Employee's employment with the Company on an "at\nwill" basis absent Employee’s agreement to the foregoing. In the event that, notwithstanding the foregoing, any of the provisions of\nthis Exhibit A or any parts hereof shall be held to be invalid or unenforceable, the remaining provisions or parts hereof shall\nnevertheless continue to be valid and enforceable as though the invalid or unenforceable portions or parts had not been included\nherein. In the event that any provision of this Exhibit A relating to the time period and/or the area of restriction, if any, and/or\nrelated aspects shall be declared by a court of competent jurisdiction to exceed the maximum restrictiveness such court deems\nreasonable and enforceable, the time period and/or area of restriction and/or related aspects deemed reasonable and enforceable by\nsuch court shall become and thereafter be the maximum restrictions in such regard, and the provisions of the Restrictive Covenant\nshall remain enforceable to the fullest extent deemed reasonable by such court.\n3.\nConfidentiality and Non-Disclosure. In consideration of the continuation of Employee's employment with the Company\non an "at will" basis, Employee agrees that during the term of employment with the Company and thereafter to hold in confidence\nthe Company's Confidential and Proprietary Information, whether communicated orally or in documentary or other tangible form.\nEmployee recognizes that the Company has invested considerable amounts of time and money in attaining and developing all of the\ninformation described above, and any unauthorized disclosure or release of such Confidential and Proprietary Information in any\nform would irreparably harm the Company. Notwithstanding the foregoing, nothing in this Exhibit A limits rights of Employee to\nfile a charge or complaint with or from participating in an investigation or proceeding conducted by the Equal Employment\nOpportunity Commission, National Labor Relations Board, Occupational Safety and Health Administration, the Securities and\nExchange Commission, or any other any federal, state or local agency charged with the enforcement of any laws, including\nproviding documents or any other information.\n4.\nEquitable Relief. Employee agrees that it would be impossible to adequately compensate the Company and its\nsubsidiaries for the damage suffered by the Company or its subsidiaries as a result of Employee’s breach of any of the covenants\nand obligations set forth in this Exhibit A. Accordingly, Employee agrees that if Employee breaches any such covenants and\nobligations, the Company or its subsidiaries may, in addition to any other right or remedy available, obtain an injunction from a\ncourt of competent jurisdiction restraining such breach or threatened breach and to specific performance of any such provision of\nthis Exhibit A. Employee further agrees that no bond or other security shall be required in obtaining such equitable relief and\nEmployee hereby consents to the issuance of such injunction and to the ordering of specific performance.
+b912f78ad89e18faf671787773efc271.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of February 16, 2009 (the “Effective Date”), between\nCHORDIANT SOFTWARE, INC. (“Chordiant”) and PEGASYSTEMS INC. (“Pegasystems”).\nIn order to facilitate the consideration and negotiation of a possible transaction involving Chordiant and Pegasystems (referred to collectively\nas the “Parties” and individually as a “Party”), each Party has requested access to certain non-public information regarding the other Party and the\nother Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each Party,\nin its capacity as a recipient of information, is referred to in this Agreement as the “Recipient.”) This Agreement sets forth the Parties’ obligations\nregarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to section 4 below, neither the Recipient nor any of the\nRecipient’s Representatives (as defined in section 13 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a possible transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person (as defined in section 13 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives (it being understood that any action or\nomission on the part of any Representative of the Recipient shall be deemed to constitute a breach or violation of this Agreement if such action or\nomission would constitute a breach or violation of this Agreement if taken or omitted by the Recipient). The Recipient will (at its own expense) take\nall commercially reasonable actions necessary to ensure that its Representatives not make any unauthorized use or disclosure of any of the Provider’s\nConfidential Information.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to any of the individuals identified opposite the name of the Provider on Exhibit A (the “Provider Contact Person”).\nNeither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the\nProvider with respect to the possible transaction that is the subject matter of this Agreement or any related matters without the prior written\nauthorization of one of the Provider Contact Persons. Nothing in this Section 2 shall prohibit any communications by the Recipient to the Provider’s\nboard of directors.\n3. No Representations by Provider. The Provider Contact Person will have the exclusive authority to decide what Confidential Information\n(if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of the Provider’s\nRepresentatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the\nRecipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished. Neither the Provider nor\nany of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the\nProvider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the\nRecipient’s Representatives relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors\ntherein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that\nprovides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a “Definitive\nAgreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to\nthe Recipient’s disclosure thereof;\n(ii) subject to section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the\nRecipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of\nhelping the Recipient consider, evaluate or negotiate a possible transaction between the Parties, and (B) has been provided with a copy of\nthis Agreement, has been instructed to abide by the provisions hereof and is under an obligation to maintain the confidentiality of such\nConfidential Information; and\n(iii) subject to section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed\nonly to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in section 4(a)(ii) above, the\nRecipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the\nRecipient.\n(c) Notwithstanding the limitations set forth in section 1 above, if the Recipient or any of the Recipient’s Representatives is required by\nlaw or governmental or other regulation or by subpoena or other valid legal process to disclose any of the Provider’s Confidential Information\nto any Person, then the Recipient will immediately provide the Provider with written notice of the applicable law, regulation or process so that\nthe Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate fully with the\nProvider and the Provider’s Representatives in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider\nelects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the\nRecipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential Information to the extent\nlegally required; provided, however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential\nInformation is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver\nto the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the\nRecipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any such Confidential Information, the Recipient may\ndestroy such Confidential Information and deliver to the Provider a certificate confirming its destruction; provided, further, that outside counsel to\nthe Recipient may retain one copy of such Confidential Information to show compliance with this Agreement or to comply with applicable law, rule\nor regulation. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant\nto this section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n6. Limitation on Soliciting Employees. During the one-year period commencing on the Effective Date, neither Party nor any of such Party’s\nRepresentatives will directly or indirectly solicit for employment or knowingly induce or encourage (in each case, other than by means of a general\nsolicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its business) any\nCovered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of the other Party in\norder to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter agreement, “Covered\nPerson” shall mean any Person who is an employee of the other Party or any subsidiary or other affiliate of the other Party as of the\n2\nEffective Date or who becomes an employee of the other Party or of any subsidiary or other affiliate of the other Party before the termination of\ndiscussions regarding a possible transaction involving the Parties, in each case, who is either (x) involved in the discussions regarding the possible\ntransaction that is the subject matter of this Agreement or (y) a key employee of the Provider which will be defined as being a vice president level\nemployee or above.\n7. Standstill Provision. During the one-year period commencing on the Effective Date (the “Standstill Period”), neither Pegasystems nor any\nof Pegasystems’ Representatives will, in any manner, directly or indirectly:\n(a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any\nsecurities of Chordiant or any securities of any subsidiary or other affiliate of Chordiant, (ii) any acquisition of any assets of Chordiant or any\nassets of any subsidiary or other affiliate of Chordiant, (iii) any tender offer, exchange offer, merger, business combination, recapitalization,\nrestructuring, liquidation, dissolution or extraordinary transaction involving Chordiant or any subsidiary or other affiliate of Chordiant, or\ninvolving any securities or assets of Chordiant or any securities or assets of any subsidiary or other affiliate of Chordiant, or (iv) any\n“solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to\nany securities of Chordiant; provided that, the foregoing restrictions shall not prohibit the Company in any way from making non-public offers\nor non-public proposals addressed to the board of directors of Chordiant;\n(b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the\nbeneficial ownership of any securities of Chordiant;\n(c) act, alone or in concert with others, to seek to control the management, board of directors or policies of Chordiant;\n(d) take any action that would reasonably be likely to require Chordiant to make a public announcement regarding any of the types of\nmatters set forth in clause “(a)” of this sentence; or\n(e) enter into any arrangement or agreement with any other Person relating to any of the foregoing.\nNotwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by Chordiant\nand a third party (other than Pegasystems or any affiliate of Pegasystems) to effect (i) a merger, recapitalization or other business combination or\ntransaction that, if consummated, would result in the holders of the outstanding shares of common stock of Pegasystems immediately prior to such\nmerger or other business combination or transaction owning less than 50% of the outstanding voting power of such third party or the resulting entity\nimmediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the assets of Chordiant and\nits subsidiaries taken as a whole (each such transaction, a “Change of Control Transaction”), or (B) at any time during the Standstill Period (1) an\noffer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) Pegasystems requests an\nopportunity to meet with the board of directors of Chordiant, and (3) Chordiant does not grant such request within seven days following the date\nthereof or thereafter continue such discussions in good faith, then the restrictions set forth in this section 7 shall immediately terminate and cease to\nbe of any further force or effect (it being understood that any good faith rejection by Chordiant of any offer or proposal made by Pegasystems as part\nof such discussions shall not cause the restrictions set forth in this section 7 to terminate). The expiration of the Standstill Period or the termination\nof the restrictions set forth in this section 7 will not terminate or otherwise affect any of the other provisions of this Agreement. Chordiant hereby\nrepresents and warrants to Pegasystems that, during the 12-month period prior to the date of this Agreement, Chordiant has not entered into any\nconfidentiality agreement in connection with a Change of Control Transaction that does not a include a standstill provision.\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with\n3\nthe other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or\nproposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any\nother Person; (b) to reject any proposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving\nsuch Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly\nprovided in any binding written agreement between the Parties that is executed on or after the Effective Date: (i) the other Party and its\nRepresentatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will\nnot have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or\nproposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended\nexcept by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision\nor provisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party’s Representatives and that the other Party is likely to suffer irreparable harm as a result of any such breach.\nAccordingly, each Party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or\nthreatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not\nbe deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in\nequity to the Parties. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its\nRepresentatives has breached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the\nreasonable legal fees incurred by the other Party and the other Party’s Representatives in connection with such litigation (including any appeal\nrelating thereto).\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or\nproceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\nproceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and\nunconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or\nproceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought\nin an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only\nthe following:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the\nProvider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has been made available\n4\nto the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider, regardless of the\nmanner in which it was made available;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient to the extent that it contains, reflects, interprets or is based\ndirectly or indirectly upon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms, conditions or other facts with respect to any such transaction, including the status thereof.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives in breach or in violation of this Agreement;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the\nRecipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such\ninformation was not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the\nProvider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) is independently developed by the Recipient without use of or reference to any of the Provider’s Confidential Information.\n13. Miscellaneous; Termination.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a\nsubsidiary or other controlled affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or\nrepresentative of such Party or of any of such Party’s subsidiaries or other controlled affiliates.\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in\nany other situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is\nnot, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n5\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that\nit is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall\nnot, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such\nmaterials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly,\nall Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nor doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties\nagree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(g) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(h) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission\nor by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\n(i) This Agreement shall terminate on the second anniversary of the Effective Date; provided, however, that (i) the restrictions and\ncovenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property,\nintellectual property rights and/or technical information shall terminate on the fifth anniversary of the Effective Date; and (ii) the termination\nof this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this\nAgreement.\n[Remainder of page intentionally left blank]\n6\nThe parties have caused this Agreement to be executed as of the Effective Date.\nCHORDIANT SOFTWARE, INC.\nPEGASYSTEMS INC.\nBy: /s/ Steven R. Springsteel\nBy: /s/ Alan Trefler\nName: Steven R. Springsteel\nName: Alan Trefler\nTitle: Chairman, President and CEO\nTitle: Chief Executive Officer\nSignature Page to Confidentiality Agreement\nAMENDMENT TO CONFIDENTIALITY AGREEMENT\nThis Amendment to Confidentiality Agreement (this “Amendment”) is entered into as of March 16, 2009, between Chordiant Software, Inc., a\nDelaware corporation (“Chordiant”), and Pegasystems Inc., a Delaware corporation (“Pegasystems”).\nRecitals\nA. Chordiant and Pegasystems are parties to a Confidentiality Agreement dated as of February 16, 2009 (the “Confidentiality Agreement”).\nCapitalized terms not otherwise defined in this Amendment will have the meanings given to such terms in the Confidentiality Agreement.\nB. The parties desire to amend the Confidentiality Agreement as set forth herein.\nAgreement\nThe parties to this Amendment, intending to be legally bound, agree as follows:\n1. The Confidentiality Agreement is hereby amended by adding a new Section 14 and a new Section 15, which will read in their entirety as follows:\n“14. Disclosure Procedures for Highly Confidential Financial Information.\n(a) Notwithstanding anything in this Agreement to the contrary, the parties agree that the only individuals representing Pegasystems who\nwill be granted access to Highly Confidential Financial Information (as defined below) are those representatives of Ernst & Young listed on\nExhibit A hereto (the “Financial Clean Team”). For purposes of this Agreement, “Highly Confidential Financial Information” means\nChordiant’s PBC reports, the audit work papers relating to the Company prepared by BDO Seidman, LLP, Chordiant’s independent auditors,\nand any other Confidential Information identified by Chordiant in writing (prior to disclosure to Pegasystems or its representatives) to be of\nthis level of sensitivity, except to the extent of data previously provided through the data room.\n(b) Pegasystems hereby agrees to cause the individuals on the Financial Clean Team not to disclose, prior to the consummation of the\nproposed acquisition of Chordiant by Pegasystems, any of the Highly Confidential Financial Information to any employees, officers, directors,\nor representatives of Pegasystems, or to any other individuals who are not on the Financial Clean Team, except that they may disclose this\ninformation in written summaries, so long as these written summaries do not provide pricing terms, customer-specific information, or provide\nthe means of determining the identity of specific customers, to members of the Pegasystems due diligence team determined by the Financial\nClean Team to have a good faith “need to know” basis for the information at the level of detail these summaries provide. Subsequent to signing\na definitive agreement but prior to consummating the transaction, Pegasystems may request that individuals not listed on Exhibit A or Exhibit\nB have access to specified Highly Confidential Financial Information for integration planning purposes, with access subject to the prior written\napproval of Chordiant.\n15. Disclosure Procedures for Other Highly Confidential Information.\n(a) Notwithstanding anything in this Agreement to the contrary, the parties agree that the only individuals representing Pegasystems who\nwill be granted access to Other Highly Confidential Information (as defined below) are those individuals listed on Exhibit B hereto (the “Non-\nFinancial Clean Team”). For purposes of this Agreement, “Other Highly Confidential Information” means any Chordiant customer, OEM or\npartner agreement, and any other Confidential Information identified by Chordiant in writing (prior to disclosure to Pegasystems or its\nrepresentatives) to be of this level of sensitivity, except to the extent previously provided through the data room.\n(b) Pegasystems hereby agrees to cause the individuals on the Non-Financial Clean Team not to disclose, prior to the consummation of\nthe proposed acquisition of Chordiant by Pegasystems, any of the Other Highly Confidential Information to any employees, officers, directors,\nor representatives of Pegasystems, or to any other individuals who are not on the Non-Financial Clean Team, except that they may disclose this\ninformation in written summaries, so long as these written summaries do not provide pricing terms, customer-specific information, or provide\nthe means of determining the identity of specific customers, to members of the Pegasystems due diligence team determined by the Financial\nClean Team to have a good faith “need to know” basis for the information at the level of detail these summaries provide, and Chordiant has\nprovided written approval of the disclosure of these summaries to them after first having received the names and titles of individuals to whom\nPegasystems wants to share this information (and a brief description of which summaries it seeks to share with which individuals) and these\nrecipients are not permitted to share the summaries or any of their contents with any other individuals without Chordiant’s prior written\nauthorization. Subsequent to signing a definitive agreement but prior to consummating the transaction, Pegasystems may request that\nindividuals not listed on Exhibit A or Exhibit B have access to specified Other Highly Confidential Information for integration planning\npurposes, with access subject to the prior written approval of Chordiant.”\n2. Except as it has been specifically amended pursuant to Section 1 of this Amendment, the Confidentiality Agreement will continue in full force and\neffect.\n3. This Amendment may be executed in counterparts, each of which will constitute an original and all of which, when taken together, will constitute\none agreement.\nThe parties to this Amendment have caused this Amendment to be executed and delivered as of the date first set forth above.\nCHORDIANT SOFTWARE, INC.\nBy: /s/ David Zuckerman\nName: David Zuckerman\nTitle: VP, General Counsel and Secretary\nPEGASYSTEMS INC.\nBy: /s/ Shawn Hoyt\nName: Shawn Hoyt\nTitle: General Counsel and Secretary\n2\nAMENDMENT TO CONFIDENTIALITY AGREEMENT\nThis AMENDMENT TO CONFIDENTIALITY AGREEMENT (“Amendment”) is being entered into as of March 2, 2010 between\nCHORDIANT SOFTWARE, INC. (“Chordiant”) and PEGASYSTEMS INC. (“Pegasystems”).\nWHEREAS, Chordiant and Pegasystems previously entered into a Confidentiality Agreement dated as of February 16, 2009 (the\n“Confidentiality Agreement”), which Confidentiality Agreement remains in effect; and\nWHEREAS, Chordiant and Pegasystems desire to delete Sections 6, 7 and 13(i) of the Confidentiality Agreement and replace them with new\nprovisions which extend the term of those sections;\nNOW THEREFORE, BE IT RESOLVED, that the Parties, intending to be legally bound, acknowledge and agree as follows:\n14. Limitation on Soliciting Employees. Section 6 of the Confidentiality Agreement is hereby deleted in its entirety and replaced with the\nfollowing:\n6. Limitation on Soliciting Employees. During the 18-month period commencing on the Effective Date, neither Party nor any of such Party’s\nRepresentatives will directly or indirectly solicit for employment or knowingly induce or encourage (in each case, other than by means of a\ngeneral solicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its\nbusiness) any Covered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of\nthe other Party in order to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter\nagreement, “Covered Person” shall mean any Person who is an employee of the other Party or any subsidiary or other affiliate of the other\nParty as of the Effective Date or who becomes an employee of the other Party or of any subsidiary or other affiliate of the other Party before\nthe termination of discussions regarding a possible transaction involving the Parties, in each case, who is either (x) involved in the discussions\nregarding the possible transaction that is the subject matter of this Agreement or (y) a key employee of the Provider which will be defined as\nbeing a vice president level employee or above.\n2. Standstill Provision. Section 7 of the Confidentiality Agreement is hereby deleted in its entirety and replaced with the following:\n7. Standstill Provision. During the 18-month period commencing on the Effective Date (the “Standstill Period”), neither Pegasystems nor\nany of Pegasystems’ Representatives will, in any manner, directly or indirectly:\n(a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any\nsecurities of Chordiant or any securities of any subsidiary or other affiliate of Chordiant, (ii) any acquisition of any assets of Chordiant or any\nassets of any subsidiary or other affiliate of Chordiant, (iii) any tender offer, exchange offer, merger, business combination, recapitalization,\nrestructuring, liquidation, dissolution or extraordinary transaction involving Chordiant or any subsidiary or other affiliate of Chordiant, or\ninvolving any securities or assets of Chordiant or any securities or assets of any subsidiary or other affiliate of Chordiant, or (iv) any\n“solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to\nany securities of Chordiant; provided that, the foregoing restrictions shall not prohibit Pegasystems in any way from making non-public offers\nor non-public proposals addressed to the board of directors of Chordiant;\n(b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the\nbeneficial ownership of any securities of Chordiant;\n(c) act, alone or in concert with others, to seek to control the management, board of directors or policies of Chordiant;\n(d) take any action that would reasonably be likely to require Chordiant to make a public announcement regarding any of the types of\nmatters set forth in clause “(a)” of this sentence; or\n(e) enter into any arrangement or agreement with any other Person relating to any of the foregoing.\nNotwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by\nChordiant and a third party (other than Pegasystems or any affiliate of Pegasystems) to effect (i) a merger, recapitalization or other business\ncombination or transaction that, if consummated, would result in the holders of the outstanding shares of common stock of Chordiant\nimmediately prior to such merger or other business combination or transaction owning less than 50% of the outstanding voting power of such\nthird party or the resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or\nsubstantially all of the assets of Chordiant and its subsidiaries taken as a whole (each such transaction, a “Change of Control Transaction”),\nor (B) at any time during the Standstill Period (1) Pegasystems requests in writing an opportunity to meet with the board of directors of\nChordiant, and (2) Chordiant does not grant such request within seven days following the date thereof or thereafter continue such discussions\nin good faith, then the restrictions set forth in this section 7 shall immediately terminate and cease to be of any further force or effect (it being\nunderstood that any good faith rejection by Chordiant of any offer or proposal made by Pegasystems as part of such discussions shall not cause\nthe restrictions set forth in this section 7 to terminate). The expiration of the Standstill Period or the termination of the restrictions set forth in\nthis section 7 will not terminate or otherwise affect any of the other provisions of this Agreement. Chordiant hereby represents and warrants to\nPegasystems that, during the 12-month period prior to the date of this Agreement, Chordiant has not entered into any confidentiality agreement\nin connection with a Change of Control Transaction that does not a include a standstill provision.\n3. Term. Section 13(i) of the Confidentiality Agreement is hereby deleted in its entirety and replaced with the following:\n(i) This Agreement shall terminate on the third anniversary of the Effective Date; provided, however, that (i) the restrictions and\ncovenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property,\nintellectual property rights and/or technical information shall terminate on the sixth anniversary of the Effective Date; and (ii) the termination\nof this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this\nAgreement.\n4. Miscellaneous.\n(a) Defined terms used but not defined herein shall have the meaning ascribed to them in the Confidentiality Agreement.\n(b) Except as otherwise provided herein, the Confidentiality Agreement shall remain in full force and effect.\n(c) This Amendment may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Amendment (in counterparts or otherwise) by electronic\ntransmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Amendment.\n[Remainder of page intentionally left blank]\n2\nThe parties have caused this Amendment to be executed as of the date first written above.\nCHORDIANT SOFTWARE, INC.\nPEGASYSTEMS INC.\nBy: /s/ Robert A. Roepke, Jr.\nBy: /s/ Shawn Hoyt\nName: Robert A. Roepke, Jr.\nName: Shawn Hoyt\nTitle: VP, Finance\nTitle: General Counsel\nSignature Page to Amendment to Confidentiality Agreement\nAMENDMENT TO CONFIDENTIALITY AGREEMENT\nThis Amendment to Confidentiality Agreement (this “Amendment”) is entered into as of March 3, 2010, between Chordiant Software, Inc., a\nDelaware corporation (“Chordiant”), and Pegasystems Inc., a Delaware corporation (“Pegasystems”).\nRecitals\nA. Chordiant and Pegasystems are parties to a Confidentiality Agreement dated as of February 16, 2009 (as previously amended on March 16,\n2009 and March 2, 2010, the “Confidentiality Agreement”). Capitalized terms not otherwise defined in this Amendment will have the meanings\ngiven to such terms in the Confidentiality Agreement.\nB. The parties desire to amend the Confidentiality Agreement as set forth herein.\nAgreement\nThe parties to this Amendment, intending to be legally bound, agree as follows:\n1. The Confidentiality Agreement is hereby amended by substituting the following new Section 14 in lieu of the prior Section 14 added by\namendment on March 16, 2009, and by deleting the prior Section 15 added by amendment on March 16, 2009. Accordingly, Section 14 will read in\nits entirety as follows:\n“14. Disclosure Procedures for Highly Confidential Information.\n(a) Notwithstanding anything in this Agreement to the contrary, the parties agree that the only individuals representing Pegasystems who\nwill be granted access to Highly Confidential Information (as defined below) are those Pegasystems employees and representatives of\nPegasystems’ financial and legal advisors listed on Exhibit A hereto (the “Clean Team”). For purposes of this Agreement, “Highly\nConfidential Information” means (1) Chordiant’s PBC reports, the audit work papers relating to the Company prepared by BDO Seidman, LLP,\nChordiant’s independent auditors, (2) any Chordiant customer, OEM or partner agreement, and (3) and any other Confidential Information\nidentified by Chordiant in writing (prior to disclosure to Pegasystems or its representatives) to be of this level of sensitivity. Notwithstanding\nanything herein to the contrary, any information previously provided to Pegasystems through the data room as Highly Confidential Financial\nInformation or Other Highly Confidential Information shall be Highly Confidential Information hereunder.\n(b) Pegasystems hereby agrees to cause the individuals on the Clean Team not to disclose, prior to the consummation of the proposed\nacquisition of Chordiant by Pegasystems, any of the Highly Confidential Information to any employees, officers, directors, or representatives\nof Pegasystems, or to any other individuals who are not on the Clean Team, except that they may disclose this information in written\nsummaries, so long as these written summaries do not provide pricing terms, customer-specific information, or provide the means of\ndetermining the identity of specific customers, to members of the Pegasystems due diligence team determined by the Clean Team to have a\ngood faith “need to know” basis for the information at the level of detail these summaries provide. Subsequent to signing a definitive\nagreement but prior to consummating the transaction, Pegasystems may request that individuals not listed on Exhibit A have access to\nspecified Highly Confidential Information for integration planning purposes, with access subject to the prior written approval of Chordiant.\n2. Except as it has been specifically amended pursuant to Section 1 of this Amendment, the Confidentiality Agreement will continue in full force and\neffect.\n3. This Amendment may be executed in counterparts, each of which will constitute an original and all of which, when taken together, will constitute\none agreement.\nThe parties to this Amendment have caused this Amendment to be executed and delivered as of the date first set forth above.\nCHORDIANT SOFTWARE, INC.\nBy: /s/ David Zuckerman\nName: David Zuckerman\nTitle: VP, General Counsel and Secretary\nPEGASYSTEMS INC.\nBy: /s/ Shawn Hoyt\nName: Shawn Hoyt\nTitle: General Counsel and Secretary\n2	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of February 16, 2009 (the “Effective Date”), between\nCHORDIANT SOFTWARE, INC. (“Chordiant”) and PEGASYSTEMS INC. (“Pegasystems”).\nIn order to facilitate the consideration and negotiation of a possible transaction involving Chordiant and Pegasystems (referred to collectively\nas the “Parties” and individually as a “Party”), each Party has requested access to certain non-public information regarding the other Party and the\nother Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each Party,\nin its capacity as a recipient of information, is referred to in this Agreement as the “Recipient.”) This Agreement sets forth the Parties’ obligations\nregarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to section 4 below, neither the Recipient nor any of the\nRecipient’s Representatives (as defined in section 13 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a possible transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person (as defined in section 13 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives (it being understood that any action or\nomission on the part of any Representative of the Recipient shall be deemed to constitute a breach or violation of this Agreement if such action or\nomission would constitute a breach or violation of this Agreement if taken or omitted by the Recipient). The Recipient will (at its own expense) take\nall commercially reasonable actions necessary to ensure that its Representatives not make any unauthorized use or disclosure of any of the Provider’s\nConfidential Information.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to any of the individuals identified opposite the name of the Provider on Exhibit A (the “Provider Contact Person”).\nNeither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the\nProvider with respect to the possible transaction that is the subject matter of this Agreement or any related matters without the prior written\nauthorization of one of the Provider Contact Persons. Nothing in this Section 2 shall prohibit any communications by the Recipient to the Provider’s\nboard of directors.\n3. No Representations by Provider. The Provider Contact Person will have the exclusive authority to decide what Confidential Information\n(if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of the Provider’s\nRepresentatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the\nRecipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished. Neither the Provider nor\nany of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the\nProvider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the\nRecipient’s Representatives relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors\ntherein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that\nprovides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a “Definitive\nAgreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to\nthe Recipient’s disclosure thereof;\n(ii) subject to section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the\nRecipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of\nhelping the Recipient consider, evaluate or negotiate a possible transaction between the Parties, and (B) has been provided with a copy of\nthis Agreement, has been instructed to abide by the provisions hereof and is under an obligation to maintain the confidentiality of such\nConfidential Information; and\n(iii) subject to section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed\nonly to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in section 4(a)(ii) above, the\nRecipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the\nRecipient.\n(c) Notwithstanding the limitations set forth in section 1 above, if the Recipient or any of the Recipient’s Representatives is required by\nlaw or governmental or other regulation or by subpoena or other valid legal process to disclose any of the Provider’s Confidential Information\nto any Person, then the Recipient will immediately provide the Provider with written notice of the applicable law, regulation or process so that\nthe Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate fully with the\nProvider and the Provider’s Representatives in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider\nelects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the\nRecipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential Information to the extent\nlegally required; provided, however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential\nInformation is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver\nto the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the\nRecipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any such Confidential Information, the Recipient may\ndestroy such Confidential Information and deliver to the Provider a certificate confirming its destruction; provided, further, that outside counsel to\nthe Recipient may retain one copy of such Confidential Information to show compliance with this Agreement or to comply with applicable law, rule\nor regulation. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant\nto this section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n6. Limitation on Soliciting Employees. During the one-year period commencing on the Effective Date, neither Party nor any of such Party’s\nRepresentatives will directly or indirectly solicit for employment or knowingly induce or encourage (in each case, other than by means of a general\nsolicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its business) any\nCovered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of the other Party in\norder to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter agreement, “Covered\nPerson” shall mean any Person who is an employee of the other Party or any subsidiary or other affiliate of the other Party as of the\n2\nEffective Date or who becomes an employee of the other Party or of any subsidiary or other affiliate of the other Party before the termination of\ndiscussions regarding a possible transaction involving the Parties, in each case, who is either (x) involved in the discussions regarding the possible\ntransaction that is the subject matter of this Agreement or (y) a key employee of the Provider which will be defined as being a vice president level\nemployee or above.\n7. Standstill Provision. During the one-year period commencing on the Effective Date (the “Standstill Period”), neither Pegasystems nor any\nof Pegasystems’ Representatives will, in any manner, directly or indirectly:\n(a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any\nsecurities of Chordiant or any securities of any subsidiary or other affiliate of Chordiant, (ii) any acquisition of any assets of Chordiant or any\nassets of any subsidiary or other affiliate of Chordiant, (iii) any tender offer, exchange offer, merger, business combination, recapitalization,\nrestructuring, liquidation, dissolution or extraordinary transaction involving Chordiant or any subsidiary or other affiliate of Chordiant, or\ninvolving any securities or assets of Chordiant or any securities or assets of any subsidiary or other affiliate of Chordiant, or (iv) any\n“solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to\nany securities of Chordiant; provided that, the foregoing restrictions shall not prohibit the Company in any way from making non-public offers\nor non-public proposals addressed to the board of directors of Chordiant;\n(b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the\nbeneficial ownership of any securities of Chordiant;\n(c) act, alone or in concert with others, to seek to control the management, board of directors or policies of Chordiant;\n(d) take any action that would reasonably be likely to require Chordiant to make a public announcement regarding any of the types of\nmatters set forth in clause “(a)” of this sentence; or\n(e) enter into any arrangement or agreement with any other Person relating to any of the foregoing.\nNotwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by Chordiant\nand a third party (other than Pegasystems or any affiliate of Pegasystems) to effect (i) a merger, recapitalization or other business combination or\ntransaction that, if consummated, would result in the holders of the outstanding shares of common stock of Pegasystems immediately prior to such\nmerger or other business combination or transaction owning less than 50% of the outstanding voting power of such third party or the resulting entity\nimmediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the assets of Chordiant and\nits subsidiaries taken as a whole (each such transaction, a “Change of Control Transaction”), or (B) at any time during the Standstill Period (1) an\noffer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) Pegasystems requests an\nopportunity to meet with the board of directors of Chordiant, and (3) Chordiant does not grant such request within seven days following the date\nthereof or thereafter continue such discussions in good faith, then the restrictions set forth in this section 7 shall immediately terminate and cease to\nbe of any further force or effect (it being understood that any good faith rejection by Chordiant of any offer or proposal made by Pegasystems as part\nof such discussions shall not cause the restrictions set forth in this section 7 to terminate). The expiration of the Standstill Period or the termination\nof the restrictions set forth in this section 7 will not terminate or otherwise affect any of the other provisions of this Agreement. Chordiant hereby\nrepresents and warrants to Pegasystems that, during the 12-month period prior to the date of this Agreement, Chordiant has not entered into any\nconfidentiality agreement in connection with a Change of Control Transaction that does not a include a standstill provision.\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with\nthe other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or\nproposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any\nother Person; (b) to reject any proposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving\nsuch Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly\nprovided in any binding written agreement between the Parties that is executed on or after the Effective Date: (i) the other Party and its\nRepresentatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will\nnot have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or\nproposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended\nexcept by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision\nor provisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party’s Representatives and that the other Party is likely to suffer irreparable harm as a result of any such breach.\nAccordingly, each Party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or\nthreatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not\nbe deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in\nequity to the Parties. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its\nRepresentatives has breached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the\nreasonable legal fees incurred by the other Party and the other Party’s Representatives in connection with such litigation (including any appeal\nrelating thereto).\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or\nproceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\nproceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and\nunconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or\nproceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought\nin an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only\nthe following:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the\nProvider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has been made available\n4\nto the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider, regardless of the\nmanner in which it was made available;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient to the extent that it contains, reflects, interprets or is based\ndirectly or indirectly upon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms, conditions or other facts with respect to any such transaction, including the status thereof.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives in breach or in violation of this Agreement;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the\nRecipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such\ninformation was not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the\nProvider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) is independently developed by the Recipient without use of or reference to any of the Provider’s Confidential Information.\n13. Miscellaneous; Termination.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a\nsubsidiary or other controlled affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or\nrepresentative of such Party or of any of such Party’s subsidiaries or other controlled affiliates.\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in\nany other situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is\nnot, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n5\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that\nit is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall\nnot, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such\nmaterials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly,\nall Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nor doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties\nagree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(g) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(h) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission\nor by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\n(i) This Agreement shall terminate on the second anniversary of the Effective Date; provided, however, that (i) the restrictions and\ncovenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property,\nintellectual property rights and/or technical information shall terminate on the fifth anniversary of the Effective Date; and (ii) the termination\nof this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this\nAgreement.\n[Remainder of page intentionally left blank]\n6\nThe parties have caused this Agreement to be executed as of the Effective Date.\nCHORDIANT SOFTWARE, INC. PEGASYSTEMS INC.\nBy: /s/ Steven R. Springsteel By: /s/ Alan Trefler\nName: Steven R. Springsteel Name: Alan Trefler\nTitle: Chairman, President and CEO Title: Chief Executive Officer\nSignature Page to Confidentiality Agreement\nAMENDMENT TO CONFIDENTIALITY AGREEMENT\nThis Amendment to Confidentiality Agreement (this “Amendment”) is entered into as of March 16, 2009, between Chordiant Software, Inc., a\nDelaware corporation (“Chordiant”), and Pegasystems Inc., a Delaware corporation (“Pegasystems”).\nRecitals\nA. Chordiant and Pegasystems are parties to a Confidentiality Agreement dated as of February 16, 2009 (the “Confidentiality Agreement”).\nCapitalized terms not otherwise defined in this Amendment will have the meanings given to such terms in the Confidentiality Agreement.\nB. The parties desire to amend the Confidentiality Agreement as set forth herein.\nAgreement\nThe parties to this Amendment, intending to be legally bound, agree as follows:\n1. The Confidentiality Agreement is hereby amended by adding a new Section 14 and a new Section 15, which will read in their entirety as follows:\n“14. Disclosure Procedures for Highly Confidential Financial Information.\n(a) Notwithstanding anything in this Agreement to the contrary, the parties agree that the only individuals representing Pegasystems who\nwill be granted access to Highly Confidential Financial Information (as defined below) are those representatives of Ernst & Young listed on\nExhibit A hereto (the “Financial Clean Team”). For purposes of this Agreement, “Highly Confidential Financial Information” means\nChordiant’s PBC reports, the audit work papers relating to the Company prepared by BDO Seidman, LLP, Chordiant’s independent auditors,\nand any other Confidential Information identified by Chordiant in writing (prior to disclosure to Pegasystems or its representatives) to be of\nthis level of sensitivity, except to the extent of data previously provided through the data room.\n(b) Pegasystems hereby agrees to cause the individuals on the Financial Clean Team not to disclose, prior to the consummation of the\nproposed acquisition of Chordiant by Pegasystems, any of the Highly Confidential Financial Information to any employees, officers, directors,\nor representatives of Pegasystems, or to any other individuals who are not on the Financial Clean Team, except that they may disclose this\ninformation in written summaries, so long as these written summaries do not provide pricing terms, customer-specific information, or provide\nthe means of determining the identity of specific customers, to members of the Pegasystems due diligence team determined by the Financial\nClean Team to have a good faith “need to know” basis for the information at the level of detail these summaries provide. Subsequent to signing\na definitive agreement but prior to consummating the transaction, Pegasystems may request that individuals not listed on Exhibit A or Exhibit\nB have access to specified Highly Confidential Financial Information for integration planning purposes, with access subject to the prior written\napproval of Chordiant.\n15. Disclosure Procedures for Other Highly Confidential Information.\n(a) Notwithstanding anything in this Agreement to the contrary, the parties agree that the only individuals representing Pegasystems who\nwill be granted access to Other Highly Confidential Information (as defined below) are those individuals listed on Exhibit B hereto (the “Non-\nFinancial Clean Team”). For purposes of this Agreement, “Other Highly Confidential Information” means any Chordiant customer, OEM or\npartner agreement, and any other Confidential Information identified by Chordiant in writing (prior to disclosure to Pegasystems or its\nrepresentatives) to be of this level of sensitivity, except to the extent previously provided through the data room.\n(b) Pegasystems hereby agrees to cause the individuals on the Non-Financial Clean Team not to disclose, prior to the consummation of\nthe proposed acquisition of Chordiant by Pegasystems, any of the Other Highly Confidential Information to any employees, officers, directors,\nor representatives of Pegasystems, or to any other individuals who are not on the Non-Financial Clean Team, except that they may disclose this\ninformation in written summaries, so long as these written summaries do not provide pricing terms, customer-specific information, or provide\nthe means of determining the identity of specific customers, to members of the Pegasystems due diligence team determined by the Financial\nClean Team to have a good faith “need to know” basis for the information at the level of detail these summaries provide, and Chordiant has\nprovided written approval of the disclosure of these summaries to them after first having received the names and titles of individuals to whom\nPegasystems wants to share this information (and a brief description of which summaries it seeks to share with which individuals) and these\nrecipients are not permitted to share the summaries or any of their contents with any other individuals without Chordiant’s prior written\nauthorization. Subsequent to signing a definitive agreement but prior to consummating the transaction, Pegasystems may request that\nindividuals not listed on Exhibit A or Exhibit B have access to specified Other Highly Confidential Information for integration planning\npurposes, with access subject to the prior written approval of Chordiant.”\n2. Except as it has been specifically amended pursuant to Section 1 of this Amendment, the Confidentiality Agreement will continue in full force and\neffect.\n3. This Amendment may be executed in counterparts, each of which will constitute an original and all of which, when taken together, will constitute\none agreement.\nThe parties to this Amendment have caused this Amendment to be executed and delivered as of the date first set forth above.\nCHORDIANT SOFTWARE, INC.\nBy: /s/ David Zuckerman\nName: David Zuckerman\nTitle: VP, General Counsel and Secretary\nPEGASYSTEMS INC.\nBy: /s/ Shawn Hoyt\nName: Shawn Hoyt\nTitle: General Counsel and Secretary\nAMENDMENT TO CONFIDENTIALITY AGREEMENT\nThis AMENDMENT TO CONFIDENTIALITY AGREEMENT (“Amendment”) is being entered into as of March 2, 2010 between\nCHORDIANT SOFTWARE, INC. (“Chordiant”) and PEGASYSTEMS INC. (“Pegasystems”).\nWHEREAS, Chordiant and Pegasystems previously entered into a Confidentiality Agreement dated as of February 16, 2009 (the\n“Confidentiality Agreement”), which Confidentiality Agreement remains in effect; and\nWHEREAS, Chordiant and Pegasystems desire to delete Sections 6, 7 and 13(i) of the Confidentiality Agreement and replace them with new\nprovisions which extend the term of those sections;\nNow THEREFORE, BE IT RESOLVED, that the Parties, intending to be legally bound, acknowledge and agree as follows:\n14. Limitation on Soliciting Employees. Section 6 of the Confidentiality Agreement is hereby deleted in its entirety and replaced with the\nfollowing:\n6. Limitation on Soliciting Employees. During the 18-month period commencing on the Effective Date, neither Party nor any of such Party’s\nRepresentatives will directly or indirectly solicit for employment or knowingly induce or encourage (in each case, other than by means of a\ngeneral solicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its\nbusiness) any Covered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of\nthe other Party in order to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter\nagreement, “Covered Person” shall mean any Person who is an employee of the other Party or any subsidiary or other affiliate of the other\nParty as of the Effective Date or who becomes an employee of the other Party or of any subsidiary or other affiliate of the other Party before\nthe termination of discussions regarding a possible transaction involving the Parties, in each case, who is either (x) involved in the discussions\nregarding the possible transaction that is the subject matter of this Agreement or (y) a key employee of the Provider which will be defined as\nbeing a vice president level employee or above.\n2. Standstill Provision. Section 7 of the Confidentiality Agreement is hereby deleted in its entirety and replaced with the following:\n7. Standstill Provision. During the 18-month period commencing on the Effective Date (the “Standstill Period”), neither Pegasystems nor\nany of Pegasystems’ Representatives will, in any manner, directly or indirectly:\n(a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any\nsecurities of Chordiant or any securities of any subsidiary or other affiliate of Chordiant, (ii) any acquisition of any assets of Chordiant or any\nassets of any subsidiary or other affiliate of Chordiant, (iii) any tender offer, exchange offer, merger, business combination, recapitalization,\nrestructuring, liquidation, dissolution or extraordinary transaction involving Chordiant or any subsidiary or other affiliate of Chordiant, or\ninvolving any securities or assets of Chordiant or any securities or assets of any subsidiary or other affiliate of Chordiant, or (iv) any\n“solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to\nany securities of Chordiant; provided that, the foregoing restrictions shall not prohibit Pegasystems in any way from making non-public offers\nor non-public proposals addressed to the board of directors of Chordiant;\n(b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the\nbeneficial ownership of any securities of Chordiant;\n(c) act, alone or in concert with others, to seek to control the management, board of directors or policies of Chordiant;\n(d) take any action that would reasonably be likely to require Chordiant to make a public announcement regarding any of the types of\nmatters set forth in clause “(a)” of this sentence; or\n(e) enter into any arrangement or agreement with any other Person relating to any of the foregoing.\nNotwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by\nChordiant and a third party (other than Pegasystems or any affiliate of Pegasystems) to effect (i) a merger, recapitalization or other business\ncombination or transaction that, if consummated, would result in the holders of the outstanding shares of common stock of Chordiant\nimmediately prior to such merger or other business combination or transaction owning less than 50% of the outstanding voting power of such\nthird party or the resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or\nsubstantially all of the assets of Chordiant and its subsidiaries taken as a whole (each such transaction, a “Change of Control Transaction”),\nor (B) at any time during the Standstill Period (1) Pegasystems requests in writing an opportunity to meet with the board of directors of\nChordiant, and (2) Chordiant does not grant such request within seven days following the date thereof or thereafter continue such discussions\nin good faith, then the restrictions set forth in this section 7 shall immediately terminate and cease to be of any further force or effect (it being\nunderstood that any good faith rejection by Chordiant of any offer or proposal made by Pegasystems as part of such discussions shall not cause\nthe restrictions set forth in this section 7 to terminate). The expiration of the Standstill Period or the termination of the restrictions set forth in\nthis section 7 will not terminate or otherwise affect any of the other provisions of this Agreement. Chordiant hereby represents and warrants to\nPegasystems that, during the 12-month period prior to the date of this Agreement, Chordiant has not entered into any confidentiality agreement\nin connection with a Change of Control Transaction that does not a include a standstill provision.\n3. Term. Section 13(i) of the Confidentiality Agreement is hereby deleted in its entirety and replaced with the following:\n(i) This Agreement shall terminate on the third anniversary of the Effective Date; provided, however, that (i) the restrictions and\ncovenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property,\nintellectual property rights and/or technical information shall terminate on the sixth anniversary of the Effective Date; and (ii) the termination\nof this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this\nAgreement.\n4. Miscellaneous.\n(a) Defined terms used but not defined herein shall have the meaning ascribed to them in the Confidentiality Agreement.\n(b) Except as otherwise provided herein, the Confidentiality Agreement shall remain in full force and effect.\n(c) This Amendment may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Amendment (in counterparts or otherwise) by electronic\ntransmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Amendment.\n[Remainder of page intentionally left blank]\n2\nThe parties have caused this Amendment to be executed as of the date first written above.\nCHORDIANT SOFTWARE, INC. PEGASYSTEMS INC.\nBy: /s/ Robert A. Roepke, Jr. By: /s/ Shawn Hoyt\nName: Robert A. Roepke, Jr. Name: Shawn Hoyt\nTitle: VP, Finance Title;  General Counsel\nSignature Page to Amendment to Confidentiality Agreement\fAMENDMENT TO CONFIDENTIALITY AGREEMENT\nThis Amendment to Confidentiality Agreement (this “Amendment”) is entered into as of March 3, 2010, between Chordiant Software, Inc., a\nDelaware corporation (“Chordiant”), and Pegasystems Inc., a Delaware corporation (“Pegasystems”).\nRecitals\nA. Chordiant and Pegasystems are parties to a Confidentiality Agreement dated as of February 16, 2009 (as previously amended on March 16,\n2009 and March 2, 2010, the “Confidentiality Agreement”). Capitalized terms not otherwise defined in this Amendment will have the meanings\ngiven to such terms in the Confidentiality Agreement.\nB. The parties desire to amend the Confidentiality Agreement as set forth herein.\nAgreement\nThe parties to this Amendment, intending to be legally bound, agree as follows:\n1. The Confidentiality Agreement is hereby amended by substituting the following new Section 14 in lieu of the prior Section 14 added by\namendment on March 16, 2009, and by deleting the prior Section 15 added by amendment on March 16, 2009. Accordingly, Section 14 will read in\nits entirety as follows:\n“14. Disclosure Procedures for Highly Confidential Information.\n(a) Notwithstanding anything in this Agreement to the contrary, the parties agree that the only individuals representing Pegasystems who\nwill be granted access to Highly Confidential Information (as defined below) are those Pegasystems employees and representatives of\nPegasystems’ financial and legal advisors listed on Exhibit A hereto (the “Clean Team”). For purposes of this Agreement, “Highly\nConfidential Information” means (1) Chordiant’s PBC reports, the audit work papers relating to the Company prepared by BDO Seidman, LLP,\nChordiant’s independent auditors, (2) any Chordiant customer, OEM or partner agreement, and (3) and any other Confidential Information\nidentified by Chordiant in writing (prior to disclosure to Pegasystems or its representatives) to be of this level of sensitivity. Notwithstanding\nanything herein to the contrary, any information previously provided to Pegasystems through the data room as Highly Confidential Financial\nInformation or Other Highly Confidential Information shall be Highly Confidential Information hereunder.\n(b) Pegasystems hereby agrees to cause the individuals on the Clean Team not to disclose, prior to the consummation of the proposed\nacquisition of Chordiant by Pegasystems, any of the Highly Confidential Information to any employees, officers, directors, or representatives\nof Pegasystems, or to any other individuals who are not on the Clean Team, except that they may disclose this information in written\nsummaries, so long as these written summaries do not provide pricing terms, customer-specific information, or provide the means of\ndetermining the identity of specific customers, to members of the Pegasystems due diligence team determined by the Clean Team to have a\ngood faith “need to know” basis for the information at the level of detail these summaries provide. Subsequent to signing a definitive\nagreement but prior to consummating the transaction, Pegasystems may request that individuals not listed on Exhibit A have access to\nspecified Highly Confidential Information for integration planning purposes, with access subject to the prior written approval of Chordiant.\n2. Except as it has been specifically amended pursuant to Section 1 of this Amendment, the Confidentiality Agreement will continue in full force and\neffect.\n3. This Amendment may be executed in counterparts, each of which will constitute an original and all of which, when taken together, will constitute\none agreement.\nThe parties to this Amendment have caused this Amendment to be executed and delivered as of the date first set forth above.\nCHORDIANT SOFTWARE, INC.\nBy: /s/ David Zuckerman\nName: David Zuckerman\nTitle: VP, General Counsel and Secretary\nPEGASYSTEMS INC.\nBy:_/s/ Shawn Hoyt\nName: Shawn Hoyt\nTitle: General Counsel and Secretary,	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT ("Agreement") is being entered into as of February 16, 2009 (the "Effective Date"), between\nCHORDIANT SOFTWARE, INC. ("Chordiant") and PEGASYSTEMS INC. ("Pegasystems").\nIn\norder to facilitate the consideration and negotiation of a possible transaction involving Chordiant and Pegasystems (referred to collectively\nas\nthe "Parties" and individually as a "Party"), each Party has requested access to certain non-public information regarding the other Party and the\nother Party's subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the "Provider"; and each Party,\nin\nits capacity as a recipient of information, is referred to in this Agreement as the "Recipient.") This Agreement sets forth the Parties' obligations\nregarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to section 4 below, neither the Recipient nor any of the\nRecipient's Representatives (as defined in section 13 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider's Confidential Information (as defined in section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a possible transaction between the Parties; or\n(b) disclose any of the Provider's Confidential Information to any other Person (as defined in section 13 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives (it being understood that any action or\nomission on the part of any Representative of the Recipient shall be deemed to constitute a breach or violation of this Agreement if such action or\nomission would constitute a breach or violation of this Agreement if taken or omitted by the Recipient). The Recipient will (at its own expense) take\nall commercially reasonable actions necessary to ensure that its Representatives not make any unauthorized use or disclosure of any of the Provider's\nConfidential Information.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider's Confidential\nInformation must be directed to any of the individuals identified opposite the name of the Provider on Exhibit A (the "Provider Contact Person").\nNeither the Recipient nor any of the Recipient's Representatives will contact or otherwise communicate with any other Representative of the\nProvider with respect to the possible transaction that is the subject matter of this Agreement or any related matters without the prior written\nauthorization of one of the Provider Contact Persons. Nothing in this Section 2 shall prohibit any communications by the Recipient to the Provider's\nboard of directors.\n3. No Representations by Provider. The Provider Contact Person will have the exclusive authority to decide what Confidential Information\n(if\nany) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of the Provider's\nRepresentatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the\nRecipient's Representatives or to supplement or update any Confidential Information of the Provider previously furnished. Neither the Provider nor\nany of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the\nProvider's Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the\nRecipient's Representatives relating to or resulting from the use of any of the Provider's Confidential Information or any inaccuracies or errors\ntherein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement\nthat\nprovides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a "Definitive\nAgreement") will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to\nthe Recipient's disclosure thereof;\n(ii) subject to section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the\nRecipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of\nhelping the Recipient consider, evaluate or negotiate a possible transaction between the Parties, and (B) has been provided with a copy of\nthis Agreement, has been instructed to abide by the provisions hereof and is under an obligation to maintain the confidentiality of such\nConfidential Information; and\n(iii) subject to section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed\nonly to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in section 4(a)(ii) above, the\nRecipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the\nRecipient.\n(c) Notwithstanding the limitations set forth in section 1 above, if the Recipient or any of the Recipient's Representatives is required by\nlaw or governmental or other regulation or by subpoena or other valid legal process to disclose any of the Provider's Confidential Information\nto\nany\nPerson,\nthen\nthe\nRecipient\nwill\nimmediately\nprovide\nthe\nProvider\nwith\nwritten\nnotice\nof\nthe\napplicable\nlaw,\nregulation\nor\nprocess\nso\nthat\nthe Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate fully with the\nProvider and the Provider's Representatives in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider\nelects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the\nRecipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidentia Information to the extent\nlegally required; provided, however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential\nInformation is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider's request, the Recipient and the Recipient's Representatives will promptly deliver\nto the Provider any of the Provider's Confidentia Information (and all copies thereof) obtained or possessed by the Recipient or any of the\nRecipient's Representatives; provided, however, that, in lieu of delivering to the Provider any such Confidential Information, the Recipient may\ndestroy such Confidential Information and deliver to the Provider a certificate confirming its destruction; provided, further, that outside counsel to\nthe Recipient may retain one copy of such Confidential Information to show compliance with this Agreement or to comply with applicable law, rule\nor regulation. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant\nto this section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n6. Limitation on Soliciting Employees. During the one-year period commencing on the Effective Date, neither Party nor any of such Party's\nRepresentatives will directly or indirectly solicit for employment or knowingly induce or encourage (in each case, other than by means of a general\nsolicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its business) any\nCovered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of the other Party\nin\norder to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter agreement, "Covered\nPerson" shall mean any Person who is an employee of the other Party or any subsidiary or other affiliate of the other Party as of the\n2\nEffective Date or who becomes an employee of the other Party or of any subsidiary or other affiliate of the other Party before the termination\nof\ndiscussions regarding a possible transaction involving the Parties, in each case, who is either (x) involved in the discussions regarding the possible\ntransaction that is the subject matter of this Agreement or (y) a key employee of the Provider which will be defined as being a vice president level\nemployee or above.\n7. Standstill Provision. During the one-year period commencing on the Effective Date (the "Standstill Period"), neither Pegasystems nor any\nof Pegasystems' Representatives will, in any manner, directly or indirectly:\n(a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any\nsecurities of Chordiant or any securities of any subsidiary or other affiliate of Chordiant, (ii) any acquisition of any assets of Chordiant or any\nassets of any subsidiary or other affiliate of Chordiant, (iii) any tender offer, exchange offer, merger, business combination, recapitalization,\nrestructuring, liquidation, dissolution or extraordinary transaction involving Chordiant or any subsidiary or other affiliate of Chordiant, or\ninvolving any securities or assets of Chordiant or any securities or assets of any subsidiary or other affiliate of Chordiant, or (iv) any\n"solicitation" of "proxies" (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to\nany securities of Chordiant; provided that, the foregoing restrictions shall not prohibit the Company in any way from making non-public\noffers\nor non-public proposals addressed to the board of directors of Chordiant;\n(b) form or join a "group" (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the\nbeneficial ownership of any securities of Chordiant;\n(c) act, alone or in concert with others, to seek to control the management, board of directors or policies of Chordiant;\n(d) take any action that would reasonably be likely to require Chordiant to make a public announcement regarding any of the types of\nmatters set forth in clause "(a)" of this sentence; or\n(e) enter into any arrangement or agreement with any other Person relating to any of the foregoing.\nNotwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by Chordiant\nand a third party (other than Pegasystems or any affiliate of Pegasystems) to effect (i) a merger, recapitalization or other business combination or\ntransaction that, if consummated, would result in the holders of the outstanding shares of common stock of Pegasystems immediately prior to such\nmerger or other business combination or transaction owning less than 50% of the outstanding voting power of such third party or the resulting entity\nimmediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the assets of Chordiant and\nits subsidiaries taken as a whole (each such transaction, a "Change of Control Transaction"), or (B) at any time during the Standstill Period (1) an\noffer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) Pegasystems requests an\nopportunity to meet with the board of directors of Chordiant, and (3) Chordiant does not grant such request within seven days following the date\nthereof or thereafter continue such discussions in good faith, then the restrictions set forth in this section 7 shall immediately terminate and cease to\nbe of any further force or effect (it being understood that any good faith rejection by Chordiant of any offer or proposal made by Pegasystems as part\nof\nsuch\ndiscussions shall not cause the restrictions set forth in this section 7 to terminate). The expiration of the Standstill Period or the termination\nof the restrictions set forth in this section 7 will not terminate or otherwise affect any of the other provisions of this Agreement. Chordiant hereby\nrepresents and warrants to Pegasystems that, during the 12-month period prior to the date of this Agreement, Chordiant has not entered into any\nconfidentiality agreement in connection with a Change of Control Transaction that does not a include a standstill provision.\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter\ninto\nany such agreement or transaction with\n3\nthe other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or\nproposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any\nother Person; (b) to reject any proposal made by the other Party or any of the other Party's Representatives with respect to a transaction involving\nsuch Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly\nprovided in any binding written agreement between the Parties that is executed on or after the Effective Date: (i) the other Party and its\nRepresentatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will\nnot have any rights or claims against the other Party or any of the other Party's Representatives arising out of or relating to any transaction or\nproposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended\nexcept by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision\nor provisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party's Representatives and that the other Party is likely to suffer irreparable harm as a result of any such breach.\nAccordingly, each Party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or\nthreatened breach of this Agreement by the other Party or any of the other Party's Representatives. The equitable remedies referred to above will not\nbe deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or\nin\nequity to the Parties. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its\nRepresentatives has breached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party's Representatives, the\nreasonable legal fees incurred by the other Party and the other Party's Representatives in connection with such litigation (including any appeal\nrelating thereto).\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or\nproceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\nproceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and\nunconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or\nproceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought\nin an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider's "Confidential Information" will be deemed to include only\nthe following:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the\nProvider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has been made available\n4\nto the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider, regardless of\nthe\nmanner in which it was made available;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient to the extent that it contains, reflects, interprets or is based\ndirectly or indirectly upon any information of the type referred to in clause "(a)" of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause "(a)" of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms, conditions or other facts with respect to any such transaction, including the status thereof.\nHowever, the Provider's "Confidential Information" will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient's Representatives in breach or in violation of this Agreement;\n(ii) any information that was in the Recipient's possession prior to the time it was first made available to the Recipient or any of the\nRecipient's Representatives by or on behalf of the Provider or any of the Provider's Representatives, provided that the source of such\ninformation was not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the\nProvider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider's Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) is independently developed by the Recipient without use of or reference to any of the Provider's Confidential Information.\n13. Miscellaneous; Termination.\n(a) For purposes of this Agreement, a Party's "Representatives" will be deemed to include each Person that is or becomes (i) a\nsubsidiary or other controlled affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or\nrepresentative of such Party or of any of such Party's subsidiaries or other controlled affiliates.\n(b) The term "Person," as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in\nany other situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient's Representatives, the Provider is\nnot, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n5\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that\nit is the Parties' mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall\nnot, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such\nmaterials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly,\nall Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nor doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties\nagree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(g) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(h) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission\nor by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\n(i) This Agreement shall terminate on the second anniversary of the Effective Date; provided, however, that (i) the restrictions and\ncovenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property,\nintellectual property rights and/or technical information shall terminate on the fifth anniversary of the Effective Date; and (ii) the termination\nof this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this\nAgreement.\n[Remainder of page intentionally left blank]\n6\nThe parties have caused this Agreement to be executed as of the Effective Date.\nCHORDIANT SOFTWARE, INC.\nPEGASYSTEMS INC.\nBy: /s/ Steven R. Springsteel\nBy: /s/ Alan Trefler\nName: Steven R. Springsteel\nName: Alan Trefler\nTitle: Chairman, President and CEO\nTitle: Chief Executive Officer\nSignature Page to Confidentiality Agreement\nAMENDMENT TO CONFIDENTIALITY AGREEMENT\nThis Amendment to Confidentiality Agreement (this "Amendment") is entered into as of March 16, 2009, between Chordiant Software, Inc., a\nDelaware corporation ("Chordiant"), and Pegasystems Inc., a Delaware corporation ("Pegasystems").\nRecitals\nA. Chordiant and Pegasystems are parties to a Confidentiality Agreement dated as of February 16, 2009 (the "Confidentiality Agreement").\nCapitalized terms not otherwise defined in this Amendment will have the meanings given to such terms in the Confidentiality Agreement.\nB. The parties desire to amend the Confidentiality Agreement as set forth herein.\nAgreement\nThe parties to this Amendment, intending to be legally bound, agree as follows:\n1. The Confidentiality Agreement is hereby amended by adding a new Section 14 and a new Section 15, which will read in their entirety as follows:\n"14. Disclosure Procedures for Highly Confidential Financial Information.\n(a) Notwithstanding anything in this Agreement to the contrary, the parties agree that the only individuals representing Pegasystems who\nwill be granted access to Highly Confidential Financial Information (as defined below) are those representatives of Ernst & Young listed on\nExhibit A hereto (the "Financial Clean Team"). For purposes of this Agreement, "Highly Confidential Financial Information" means\nChordiant's PBC reports, the audit work papers relating to the Company prepared by BDO Seidman, LLP, Chordiant's independent auditors,\nand any other Confidential Information identified by Chordiant in writing (prior to disclosure to Pegasystems or its representatives) to be of\nthis level of sensitivity, except to the extent of data previously provided through the data room.\n(b) Pegasystems hereby agrees to cause the individuals on the Financial Clean Team not to disclose, prior to the consummation of the\nproposed acquisition of Chordiant by Pegasystems, any of the Highly Confidential Financial Information to any employees, officers, directors,\nor\nrepresentatives\nof\nPegasystems,\nor\nto\nany\nother\nindividuals\nwho\nare\nnot\non\nthe\nFinancial\nClean\nTeam,\nexcept\nthat\nthey\nmay\ndisclose\nthis\ninformation in written summaries, so long as these written summaries do not provide pricing terms, customer-specific information, or provide\nthe means of determining the identity of specific customers, to members of the Pegasystems due diligence team determined by the Financial\nClean Team to have a good faith "need to know" basis for the information at the level of detail these summaries provide. Subsequent to signing\na definitive agreement but prior to consummating the transaction, Pegasystems may request that individuals not listed on Exhibit A or Exhibit\nB have access to specified Highly Confidential Financial Information for integration planning purposes, with access subject to the prior written\napproval of Chordiant.\n15. Disclosure Procedures for Other Highly Confidentia Information.\n(a) Notwithstanding anything in this Agreement to the contrary, the parties agree that the only individuals representing Pegasystems who\nwill be granted access to Other Highly Confidential Information (as defined below) are those individuals listed on Exhibit B hereto (the "Non-\nFinancial\nClean\nTeam").\nFor\npurposes\nof\nthis\nAgreement,\n"Other\nHighly\nConfidential\nInformation"\nmeans\nany\nChordiant\ncustomer,\nOEM\nor\npartner agreement, and any other Confidential Information identified by Chordiant in writing (prior to disclosure to Pegasystems or its\nrepresentatives) to be of this level of sensitivity, except to the extent previously provided through the data room.\n(b) Pegasystems hereby agrees to cause the individuals on the Non-Financial Clean Team not to disclose, prior to the consummation of\nthe proposed acquisition of Chordiant by Pegasystems, any of the Other Highly Confidential Information to any employees, officers, directors,\nor representatives of Pegasystems, or to any other individuals who are not on the Non-Financial Clean Team, except that they may disclose this\ninformation in written summaries, so long as these written summaries do not provide pricing terms, customer-specific information, or provide\nthe means of determining the identity of specific customers, to members of the Pegasystems due diligence team determined by the Financial\nClean Team to have a good faith "need to know" basis for the information at the level of detail these summaries provide, and Chordiant has\nprovided written approval of the disclosure of these summaries to them after first having received the names and titles of individuals to whom\nPegasystems wants to share this information (and a brief description of which summaries it seeks to share with which individuals) and these\nrecipients are not permitted to share the summaries or any of their contents with any other individuals without Chordiant's prior written\nauthorization. Subsequent to signing a definitive agreement but prior to consummating the transaction, Pegasystems may request that\nindividuals not listed on Exhibit A or Exhibit B have access to specified Other Highly Confidential Information for integration planning\npurposes, with access subject to the prior written approval of Chordiant."\n2. Except as it has been specifically amended pursuant to Section 1 of this Amendment, the Confidentiality Agreement will continue in full force and\neffect.\n3. This Amendment may be executed in counterparts, each of which will constitute an original and all of which, when taken together, will constitute\none agreement.\nThe parties to this Amendment have caused this Amendment to be executed and delivered as of the date first set forth above.\nCHORDIANT SOFTWARE, INC.\nBy: /s/ David Zuckerman\nName: David Zuckerman\nTitle: VP, General Counsel and Secretary\nPEGASYSTEMS INC.\nBy: /s/ Shawn Hoyt\nName: Shawn Hoyt\nTitle: General Counsel and Secretary\n2\nAMENDMENT TO CONFIDENTIALITY AGREEMENT\nThis AMENDMENT TO CONFIDENTIALITY AGREEMENT ("Amendment") is being entered into as of March 2, 2010 between\nCHORDIANT SOFTWARE, INC. ("Chordiant") and PEGASYSTEMS INC. ("Pegasystems").\nWHEREAS, Chordiant and Pegasystems previously entered into a Confidentiality Agreement dated as of February 16, 2009 (the\n"Confidentiality Agreement"), which Confidentiality Agreement remains in effect; and\nWHEREAS, Chordiant and Pegasystems desire to delete Sections 6, 7 and 13(i) of the Confidentiality Agreement and replace them with new\nprovisions which extend the term of those sections;\nNow THEREFORE, BE IT RESOLVED, that the Parties, intending to be legally bound, acknowledge and agree as follows:\n14. Limitation on Soliciting Employees. Section 6 of the Confidentiality Agreement is hereby deleted in its entirety and replaced with the\nfollowing:\n6. Limitation on Soliciting Employees. During the 18-month period commencing on the Effective Date, neither Party nor any of such Party's\nRepresentatives will directly or indirectly solicit for employment or knowingly induce or encourage (in each case, other than by means of a\ngeneral solicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of\nits\nbusiness) any Covered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of\nthe other Party in order to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter\nagreement, "Covered Person" shall mean any Person who is an employee of the other Party or any subsidiary or other affiliate of the other\nParty as of the Effective Date or who becomes an employee of the other Party or of any subsidiary or other affiliate of the other Party before\nthe termination of discussions regarding a possible transaction involving the Parties, in each case, who is either (x) involved in the discussions\nregarding the possible transaction that is the subject matter of this Agreement or (y) a key employee of the Provider which will be defined as\nbeing a vice president level employee or above.\n2. Standstill Provision. Section 7 of the Confidentiality Agreement is hereby deleted in its entirety and replaced with the following:\n7. Standstill Provision. During the 18-month period commencing on the Effective Date (the "Standstill Period"), neither Pegasystems nor\nany of Pegasystems' Representatives will, in any manner, directly or indirectly:\n(a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any\nsecurities of Chordiant or any securities of any subsidiary or other affiliate of Chordiant, (ii) any acquisition of any assets of Chordiant or any\nassets of any subsidiary or other affiliate of Chordiant, (iii) any tender offer, exchange offer, merger, business combination, recapitalization,\nrestructuring, liquidation, dissolution or extraordinary transaction involving Chordiant or any subsidiary or other affiliate of Chordiant, or\ninvolving any securities or assets of Chordiant or any securities or assets of any subsidiary or other affiliate of Chordiant, or (iv) any\n"solicitation" of "proxies" (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with\nrespect\nto\nany securities of Chordiant; provided that, the foregoing restrictions shall not prohibit Pegasystems in any way from making non-public offers\nor non-public proposals addressed to the board of directors of Chordiant;\n(b) form or join a "group" (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the\nbeneficial ownership of any securities of Chordiant;\n(c) act, alone or in concert with others, to seek to control the management, board of directors or policies of Chordiant;\n(d) take any action that would reasonably be likely to require Chordiant to make a public announcement regarding any of the types of\nmatters set forth in clause "(a)" of this sentence; or\n(e) enter into any arrangement or agreement with any other Person relating to any of the foregoing.\nNotwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by\nChordiant and a third party (other than Pegasystems or any affiliate of Pegasystems) to effect (i) a merger, recapitalization or other business\ncombination or transaction that, if consummated, would result in the holders of the outstanding shares of common stock of Chordiant\nimmediately prior to such merger or other business combination or transaction owning less than 50% of the outstanding voting power of such\nthird party or the resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or\nsubstantially all of the assets of Chordiant and its subsidiaries taken as a whole (each such transaction, a "Change of Control Transaction"),\nor\n(B)\nat\nany\ntime\nduring\nthe\nStandstill\nPeriod\n(1)\nPegasystems\nrequests\nin\nwriting\nan\nopportunity\nto\nmeet\nwith\nthe\nboard\nof\ndirectors\nof\nChordiant, and (2) Chordiant does not grant such request within seven days following the date thereof or thereafter continue such discussions\nin good faith, then the restrictions set forth in this section 7 shall immediately terminate and cease to be of any further force or effect (it being\nunderstood that any good faith rejection by Chordiant of any offer or proposal made by Pegasystems as part of such discussions shall not cause\nthe restrictions set forth in this section 7 to terminate). The expiration of the Standstill Period or the termination of the restrictions set forth in\nthis section 7 will not terminate or otherwise affect any of the other provisions of this Agreement. Chordiant hereby represents and warrants to\nPegasystems that, during the 12-month period prior to the date of this Agreement, Chordiant has not entered into any confidentiality agreement\nin connection with a Change of Control Transaction that does not a include a standstill provision.\n3. Term. Section 13(i) of the Confidentiality Agreement is hereby deleted in its entirety and replaced with the following:\n(i) This Agreement shall terminate on the third anniversary of the Effective Date; provided, however, that (i) the restrictions and\ncovenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property,\nintellectual property rights and/or technical information shall terminate on the sixth anniversary of the Effective Date; and (ii) the termination\nof\nthis Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this\nAgreement.\n4. Miscellaneous.\n(a) Defined terms used but not defined herein shall have the meaning ascribed to them in the Confidentiality Agreement.\n(b) Except as otherwise provided herein, the Confidentiality Agreement shall remain in full force and effect.\n(c) This Amendment may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Amendment (in counterparts or otherwise) by electronic\ntransmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Amendment.\n[Remainder of page intentionally left blank]\n2\nThe parties have caused this Amendment to be executed as of the date first written above.\nCHORDIANT SOFTWARE, INC.\nPEGASYSTEMS INC.\nBy:\n/s/ Robert A. Roepke, Jr.\nBy:\n/s/ Shawn Hoyt\nName: Robert A. Roepke, Jr.\nName: Shawn Hoyt\nTitle: VP, Finance\nTitle: General Counsel\nSignature Page to Amendment to Confidentiality Agreement\nAMENDMENT TO CONFIDENTIALITY AGREEMENT\nThis Amendment to Confidentiality Agreement (this "Amendment") is entered into as of March 3, 2010, between Chordiant Software, Inc., a\nDelaware corporation ("Chordiant"), and Pegasystems Inc., a Delaware corporation ("Pegasystems").\nRecitals\nA. Chordiant and Pegasystems are parties to a Confidentiality Agreement dated as of February 16, 2009 (as previously amended on March 16,\n2009 and March 2, 2010, the "Confidentiality Agreement"). Capitalized terms not otherwise defined in this Amendment will have the meanings\ngiven to such terms in the Confidentiality Agreement.\nB. The parties desire to amend the Confidentiality Agreement as set forth herein.\nAgreement\nThe parties to this Amendment, intending to be legally bound, agree as follows:\n1.\nThe\nConfidentiality Agreement is hereby amended by substituting the following new Section 14 in lieu of the prior Section 14 added by\namendment on March 16, 2009, and by deleting the prior Section 15 added by amendment on March 16, 2009. Accordingly, Section 14 will read\nin\nits entirety as follows:\n"14. Disclosure Procedures for Highly Confidential Information.\n(a) Notwithstanding anything in this Agreement to the contrary, the parties agree that the only individuals representing Pegasystems who\nwill be granted access to Highly Confidential Information (as defined below) are those Pegasystems employees and representatives of\nPegasystems' financial and legal advisors listed on Exhibit A hereto (the "Clean Team"). For purposes of this Agreement, "Highly\nConfidential Information" means (1) Chordiant's PBC reports, the audit work papers relating to the Company prepared by BDO Seidman, LLP,\nChordiant's independent auditors, (2) any Chordiant customer, OEM or partner agreement, and (3) and any other Confidential Information\nidentified by Chordiant in writing (prior to disclosure to Pegasystems or its representatives) to be of this level of sensitivity. Notwithstanding\nanything herein to the contrary, any information previously provided to Pegasystems through the data room as Highly Confidential Financial\nInformation or Other Highly Confidential Information shall be Highly Confidential Information hereunder.\n(b) Pegasystems hereby agrees to cause the individuals on the Clean Team not to disclose, prior to the consummation of the proposed\nacquisition of Chordiant by Pegasystems, any of the Highly Confidential Information to any employees, officers, directors, or representatives\nof Pegasystems, or to any other individuals who are not on the Clean Team, except that they may disclose this information in written\nsummaries, so long as these written summaries do not provide pricing terms, customer-specific information, or provide the\nmeans\nof\ndetermining the identity of specific customers, to members of the Pegasystems due diligence team determined by the Clean Team to have a\ngood faith "need to know" basis for the information at the level of detail these summaries provide. Subsequent to signing a definitive\nagreement\nbut\nprior\nto\nconsummating\nthe\ntransaction,\nPegasystems\nmay\nrequest\nthat\nindividuals\nnot\nlisted\non\nExhibit\nA\nhave\naccess\nto\nspecified Highly Confidential Information for integration planning purposes, with access subject to the prior written approval of Chordiant.\n2. Except as it has been specifically amended pursuant to Section 1 of this Amendment, the Confidentiality Agreement will continue in full force and\neffect.\n3.\nThis Amendment may be executed in counterparts, each of which will constitute an original and all of which, when taken together, will constitute\none agreement.\nThe parties to this Amendment have caused this Amendment to be executed and delivered as of the date first set forth above.\nCHORDIANT SOFTWARE, INC.\nBy: /s/ David Zuckerman\nName: David Zuckerman\nTitle: VP, General Counsel and Secretary\nPEGASYSTEMS INC.\nBy: /s/ Shawn Hoyt\nName: Shawn Hoyt\nTitle: General Counsel and Secretary.\n2	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of February 16, 2009 (the “Effective Date”), between\nCHORDIANT SOFTWARE, INC. (“Chordiant”) and PEGASYSTEMS INC. (“Pegasystems”).\nIn order to facilitate the consideration and negotiation of a possible transaction involving Chordiant and Pegasystems (referred to collectively\nas the “Parties” and individually as a “Party”), each Party has requested access to certain non-public information regarding the other Party and the\nother Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each Party,\nin its capacity as a recipient of information, is referred to in this Agreement as the “Recipient.”) This Agreement sets forth the Parties’ obligations\nregarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Subject to section 4 below, neither the Recipient nor any of the\nRecipient’s Representatives (as defined in section 13 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a possible transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person (as defined in section 13 below).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives (it being understood that any action or\nomission on the part of any Representative of the Recipient shall be deemed to constitute a breach or violation of this Agreement if such action or\nomission would constitute a breach or violation of this Agreement if taken or omitted by the Recipient). The Recipient will (at its own expense) take\nall commercially reasonable actions necessary to ensure that its Representatives not make any unauthorized use or disclosure of any of the Provider’s\nConfidential Information.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to any of the individuals identified opposite the name of the Provider on Exhibit A (the “Provider Contact Person”).\nNeither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the\nProvider with respect to the possible transaction that is the subject matter of this Agreement or any related matters without the prior written\nauthorization of one of the Provider Contact Persons. Nothing in this Section 2 shall prohibit any communications by the Recipient to the Provider’s\nboard of directors.\n3. No Representations by Provider. The Provider Contact Person will have the exclusive authority to decide what Confidential Information\n(if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of the Provider’s\nRepresentatives will be under any obligation to make any particular Confidential Information of the Provider available to the Recipient or any of the\nRecipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished. Neither the Provider nor\nany of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any of the\nProvider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the Recipient or to any of the\nRecipient’s Representatives relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors\ntherein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that\nprovides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties (a “Definitive\nAgreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to\nthe Recipient’s disclosure thereof;\n(ii) subject to section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the\nRecipient, but only to the extent such Representative (A) reasonably needs to know such Confidential Information for the purpose of\nhelping the Recipient consider, evaluate or negotiate a possible transaction between the Parties, and (B) has been provided with a copy of\nthis Agreement, has been instructed to abide by the provisions hereof and is under an obligation to maintain the confidentiality of such\nConfidential Information; and\n(iii) subject to section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed\nonly to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in section 4(a)(ii) above, the\nRecipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the\nRecipient.\n(c) Notwithstanding the limitations set forth in section 1 above, if the Recipient or any of the Recipient’s Representatives is required by\nlaw or governmental or other regulation or by subpoena or other valid legal process to disclose any of the Provider’s Confidential Information\nto any Person, then the Recipient will immediately provide the Provider with written notice of the applicable law, regulation or process so that\nthe Provider may seek a protective order or other appropriate remedy. The Recipient and its Representatives will cooperate fully with the\nProvider and the Provider’s Representatives in any attempt by the Provider to obtain any such protective order or other remedy. If the Provider\nelects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the\nRecipient disclose Confidential Information of the Provider, then the Recipient may disclose such Confidential Information to the extent\nlegally required; provided, however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such Confidential\nInformation is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver\nto the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the\nRecipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any such Confidential Information, the Recipient may\ndestroy such Confidential Information and deliver to the Provider a certificate confirming its destruction; provided, further, that outside counsel to\nthe Recipient may retain one copy of such Confidential Information to show compliance with this Agreement or to comply with applicable law, rule\nor regulation. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant\nto this section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n6. Limitation on Soliciting Employees. During the one-year period commencing on the Effective Date, neither Party nor any of such Party’s\nRepresentatives will directly or indirectly solicit for employment or knowingly induce or encourage (in each case, other than by means of a general\nsolicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its business) any\nCovered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of the other Party in\norder to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter agreement, “Covered\nPerson” shall mean any Person who is an employee of the other Party or any subsidiary or other affiliate of the other Party as of the\n2\nEffective Date or who becomes an employee of the other Party or of any subsidiary or other affiliate of the other Party before the termination of\ndiscussions regarding a possible transaction involving the Parties, in each case, who is either (x) involved in the discussions regarding the possible\ntransaction that is the subject matter of this Agreement or (y) a key employee of the Provider which will be defined as being a vice president level\nemployee or above.\n7. Standstill Provision. During the one-year period commencing on the Effective Date (the “Standstill Period”), neither Pegasystems nor any\nof Pegasystems’ Representatives will, in any manner, directly or indirectly:\n(a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any\nsecurities of Chordiant or any securities of any subsidiary or other affiliate of Chordiant, (ii) any acquisition of any assets of Chordiant or any\nassets of any subsidiary or other affiliate of Chordiant, (iii) any tender offer, exchange offer, merger, business combination, recapitalization,\nrestructuring, liquidation, dissolution or extraordinary transaction involving Chordiant or any subsidiary or other affiliate of Chordiant, or\ninvolving any securities or assets of Chordiant or any securities or assets of any subsidiary or other affiliate of Chordiant, or (iv) any\n“solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to\nany securities of Chordiant; provided that, the foregoing restrictions shall not prohibit the Company in any way from making non-public offers\nor non-public proposals addressed to the board of directors of Chordiant;\n(b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the\nbeneficial ownership of any securities of Chordiant;\n(c) act, alone or in concert with others, to seek to control the management, board of directors or policies of Chordiant;\n(d) take any action that would reasonably be likely to require Chordiant to make a public announcement regarding any of the types of\nmatters set forth in clause “(a)” of this sentence; or\n(e) enter into any arrangement or agreement with any other Person relating to any of the foregoing.\nNotwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by Chordiant\nand a third party (other than Pegasystems or any affiliate of Pegasystems) to effect (i) a merger, recapitalization or other business combination or\ntransaction that, if consummated, would result in the holders of the outstanding shares of common stock of Pegasystems immediately prior to such\nmerger or other business combination or transaction owning less than 50% of the outstanding voting power of such third party or the resulting entity\nimmediately following such merger or other business combination or transaction, or (ii) a sale of all or substantially all of the assets of Chordiant and\nits subsidiaries taken as a whole (each such transaction, a “Change of Control Transaction”), or (B) at any time during the Standstill Period (1) an\noffer for a Change of Control Transaction that specifies a per share price is publicly announced by a third party, (2) Pegasystems requests an\nopportunity to meet with the board of directors of Chordiant, and (3) Chordiant does not grant such request within seven days following the date\nthereof or thereafter continue such discussions in good faith, then the restrictions set forth in this section 7 shall immediately terminate and cease to\nbe of any further force or effect (it being understood that any good faith rejection by Chordiant of any offer or proposal made by Pegasystems as part\nof such discussions shall not cause the restrictions set forth in this section 7 to terminate). The expiration of the Standstill Period or the termination\nof the restrictions set forth in this section 7 will not terminate or otherwise affect any of the other provisions of this Agreement. Chordiant hereby\nrepresents and warrants to Pegasystems that, during the 12-month period prior to the date of this Agreement, Chordiant has not entered into any\nconfidentiality agreement in connection with a Change of Control Transaction that does not a include a standstill provision.\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with\n3\nthe other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems appropriate with respect to any transaction or\nproposed transaction involving such Party and to modify any procedures relating to any such process without giving notice to the other Party or any\nother Person; (b) to reject any proposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving\nsuch Party; and (c) to terminate discussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly\nprovided in any binding written agreement between the Parties that is executed on or after the Effective Date: (i) the other Party and its\nRepresentatives will be free to negotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will\nnot have any rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or\nproposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended\nexcept by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision\nor provisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such\nParty or by any of such Party’s Representatives and that the other Party is likely to suffer irreparable harm as a result of any such breach.\nAccordingly, each Party will be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or\nthreatened breach of this Agreement by the other Party or any of the other Party’s Representatives. The equitable remedies referred to above will not\nbe deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in\nequity to the Parties. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its\nRepresentatives has breached this Agreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the\nreasonable legal fees incurred by the other Party and the other Party’s Representatives in connection with such litigation (including any appeal\nrelating thereto).\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or\nproceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\nproceeding arising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (d) irrevocably and\nunconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or\nproceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought\nin an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only\nthe following:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the\nProvider (whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has been made available\n4\nto the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider, regardless of the\nmanner in which it was made available;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient to the extent that it contains, reflects, interprets or is based\ndirectly or indirectly upon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms, conditions or other facts with respect to any such transaction, including the status thereof.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives in breach or in violation of this Agreement;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the\nRecipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such\ninformation was not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the\nProvider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) is independently developed by the Recipient without use of or reference to any of the Provider’s Confidential Information.\n13. Miscellaneous; Termination.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a\nsubsidiary or other controlled affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or\nrepresentative of such Party or of any of such Party’s subsidiaries or other controlled affiliates.\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(d) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in\nany other situation or in any other jurisdiction.\n(e) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is\nnot, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n5\n(f) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that\nit is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall\nnot, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such\nmaterials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly,\nall Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nor doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties\nagree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(g) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(h) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission\nor by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.\n(i) This Agreement shall terminate on the second anniversary of the Effective Date; provided, however, that (i) the restrictions and\ncovenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property,\nintellectual property rights and/or technical information shall terminate on the fifth anniversary of the Effective Date; and (ii) the termination\nof this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this\nAgreement.\n[Remainder of page intentionally left blank]\n6\nThe parties have caused this Agreement to be executed as of the Effective Date.\nCHORDIANT SOFTWARE, INC.\nPEGASYSTEMS INC.\nBy: /s/ Steven R. Springsteel\nBy: /s/ Alan Trefler\nName: Steven R. Springsteel\nName: Alan Trefler\nTitle: Chairman, President and CEO\nTitle: Chief Executive Officer\nSignature Page to Confidentiality Agreement\nAMENDMENT TO CONFIDENTIALITY AGREEMENT\nThis Amendment to Confidentiality Agreement (this “Amendment”) is entered into as of March 16, 2009, between Chordiant Software, Inc., a\nDelaware corporation (“Chordiant”), and Pegasystems Inc., a Delaware corporation (“Pegasystems”).\nRecitals\nA. Chordiant and Pegasystems are parties to a Confidentiality Agreement dated as of February 16, 2009 (the “Confidentiality Agreement”).\nCapitalized terms not otherwise defined in this Amendment will have the meanings given to such terms in the Confidentiality Agreement.\nB. The parties desire to amend the Confidentiality Agreement as set forth herein.\nAgreement\nThe parties to this Amendment, intending to be legally bound, agree as follows:\n1. The Confidentiality Agreement is hereby amended by adding a new Section 14 and a new Section 15, which will read in their entirety as follows:\n“14. Disclosure Procedures for Highly Confidential Financial Information.\n(a) Notwithstanding anything in this Agreement to the contrary, the parties agree that the only individuals representing Pegasystems who\nwill be granted access to Highly Confidential Financial Information (as defined below) are those representatives of Ernst & Young listed on\nExhibit A hereto (the “Financial Clean Team”). For purposes of this Agreement, “Highly Confidential Financial Information” means\nChordiant’s PBC reports, the audit work papers relating to the Company prepared by BDO Seidman, LLP, Chordiant’s independent auditors,\nand any other Confidential Information identified by Chordiant in writing (prior to disclosure to Pegasystems or its representatives) to be of\nthis level of sensitivity, except to the extent of data previously provided through the data room.\n(b) Pegasystems hereby agrees to cause the individuals on the Financial Clean Team not to disclose, prior to the consummation of the\nproposed acquisition of Chordiant by Pegasystems, any of the Highly Confidential Financial Information to any employees, officers, directors,\nor representatives of Pegasystems, or to any other individuals who are not on the Financial Clean Team, except that they may disclose this\ninformation in written summaries, so long as these written summaries do not provide pricing terms, customer-specific information, or provide\nthe means of determining the identity of specific customers, to members of the Pegasystems due diligence team determined by the Financial\nClean Team to have a good faith “need to know” basis for the information at the level of detail these summaries provide. Subsequent to signing\na definitive agreement but prior to consummating the transaction, Pegasystems may request that individuals not listed on Exhibit A or Exhibit\nB have access to specified Highly Confidential Financial Information for integration planning purposes, with access subject to the prior written\napproval of Chordiant.\n15. Disclosure Procedures for Other Highly Confidential Information.\n(a) Notwithstanding anything in this Agreement to the contrary, the parties agree that the only individuals representing Pegasystems who\nwill be granted access to Other Highly Confidential Information (as defined below) are those individuals listed on Exhibit B hereto (the “Non-\nFinancial Clean Team”). For purposes of this Agreement, “Other Highly Confidential Information” means any Chordiant customer, OEM or\npartner agreement, and any other Confidential Information identified by Chordiant in writing (prior to disclosure to Pegasystems or its\nrepresentatives) to be of this level of sensitivity, except to the extent previously provided through the data room.\n(b) Pegasystems hereby agrees to cause the individuals on the Non-Financial Clean Team not to disclose, prior to the consummation of\nthe proposed acquisition of Chordiant by Pegasystems, any of the Other Highly Confidential Information to any employees, officers, directors,\nor representatives of Pegasystems, or to any other individuals who are not on the Non-Financial Clean Team, except that they may disclose this\ninformation in written summaries, so long as these written summaries do not provide pricing terms, customer-specific information, or provide\nthe means of determining the identity of specific customers, to members of the Pegasystems due diligence team determined by the Financial\nClean Team to have a good faith “need to know” basis for the information at the level of detail these summaries provide, and Chordiant has\nprovided written approval of the disclosure of these summaries to them after first having received the names and titles of individuals to whom\nPegasystems wants to share this information (and a brief description of which summaries it seeks to share with which individuals) and these\nrecipients are not permitted to share the summaries or any of their contents with any other individuals without Chordiant’s prior written\nauthorization. Subsequent to signing a definitive agreement but prior to consummating the transaction, Pegasystems may request that\nindividuals not listed on Exhibit A or Exhibit B have access to specified Other Highly Confidential Information for integration planning\npurposes, with access subject to the prior written approval of Chordiant.”\n2. Except as it has been specifically amended pursuant to Section 1 of this Amendment, the Confidentiality Agreement will continue in full force and\neffect.\n3. This Amendment may be executed in counterparts, each of which will constitute an original and all of which, when taken together, will constitute\none agreement.\nThe parties to this Amendment have caused this Amendment to be executed and delivered as of the date first set forth above.\nCHORDIANT SOFTWARE, INC.\nBy: /s/ David Zuckerman\nName: David Zuckerman\nTitle: VP, General Counsel and Secretary\nPEGASYSTEMS INC.\nBy: /s/ Shawn Hoyt\nName: Shawn Hoyt\nTitle: General Counsel and Secretary\n2\nAMENDMENT TO CONFIDENTIALITY AGREEMENT\nThis AMENDMENT TO CONFIDENTIALITY AGREEMENT (“Amendment”) is being entered into as of March 2, 2010 between\nCHORDIANT SOFTWARE, INC. (“Chordiant”) and PEGASYSTEMS INC. (“Pegasystems”).\nWHEREAS, Chordiant and Pegasystems previously entered into a Confidentiality Agreement dated as of February 16, 2009 (the\n“Confidentiality Agreement”), which Confidentiality Agreement remains in effect; and\nWHEREAS, Chordiant and Pegasystems desire to delete Sections 6, 7 and 13(i) of the Confidentiality Agreement and replace them with new\nprovisions which extend the term of those sections;\nNOW THEREFORE, BE IT RESOLVED, that the Parties, intending to be legally bound, acknowledge and agree as follows:\n14. Limitation on Soliciting Employees. Section 6 of the Confidentiality Agreement is hereby deleted in its entirety and replaced with the\nfollowing:\n6. Limitation on Soliciting Employees. During the 18-month period commencing on the Effective Date, neither Party nor any of such Party’s\nRepresentatives will directly or indirectly solicit for employment or knowingly induce or encourage (in each case, other than by means of a\ngeneral solicitation pursuant to a newspaper or other media advertisement or other customary means by such party in the ordinary course of its\nbusiness) any Covered Person (as defined herein) to terminate his or her relationship with the other Party or any subsidiary or other affiliate of\nthe other Party in order to become an employee, consultant or independent contractor of or to any other Person. For purposes of this letter\nagreement, “Covered Person” shall mean any Person who is an employee of the other Party or any subsidiary or other affiliate of the other\nParty as of the Effective Date or who becomes an employee of the other Party or of any subsidiary or other affiliate of the other Party before\nthe termination of discussions regarding a possible transaction involving the Parties, in each case, who is either (x) involved in the discussions\nregarding the possible transaction that is the subject matter of this Agreement or (y) a key employee of the Provider which will be defined as\nbeing a vice president level employee or above.\n2. Standstill Provision. Section 7 of the Confidentiality Agreement is hereby deleted in its entirety and replaced with the following:\n7. Standstill Provision. During the 18-month period commencing on the Effective Date (the “Standstill Period”), neither Pegasystems nor\nany of Pegasystems’ Representatives will, in any manner, directly or indirectly:\n(a) make, effect, initiate, propose, cause, participate in or knowingly encourage (i) any acquisition of beneficial ownership of any\nsecurities of Chordiant or any securities of any subsidiary or other affiliate of Chordiant, (ii) any acquisition of any assets of Chordiant or any\nassets of any subsidiary or other affiliate of Chordiant, (iii) any tender offer, exchange offer, merger, business combination, recapitalization,\nrestructuring, liquidation, dissolution or extraordinary transaction involving Chordiant or any subsidiary or other affiliate of Chordiant, or\ninvolving any securities or assets of Chordiant or any securities or assets of any subsidiary or other affiliate of Chordiant, or (iv) any\n“solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to\nany securities of Chordiant; provided that, the foregoing restrictions shall not prohibit Pegasystems in any way from making non-public offers\nor non-public proposals addressed to the board of directors of Chordiant;\n(b) form or join a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the\nbeneficial ownership of any securities of Chordiant;\n(c) act, alone or in concert with others, to seek to control the management, board of directors or policies of Chordiant;\n(d) take any action that would reasonably be likely to require Chordiant to make a public announcement regarding any of the types of\nmatters set forth in clause “(a)” of this sentence; or\n(e) enter into any arrangement or agreement with any other Person relating to any of the foregoing.\nNotwithstanding the foregoing, if (A) at any time during the Standstill Period a binding definitive acquisition agreement is executed by\nChordiant and a third party (other than Pegasystems or any affiliate of Pegasystems) to effect (i) a merger, recapitalization or other business\ncombination or transaction that, if consummated, would result in the holders of the outstanding shares of common stock of Chordiant\nimmediately prior to such merger or other business combination or transaction owning less than 50% of the outstanding voting power of such\nthird party or the resulting entity immediately following such merger or other business combination or transaction, or (ii) a sale of all or\nsubstantially all of the assets of Chordiant and its subsidiaries taken as a whole (each such transaction, a “Change of Control Transaction”),\nor (B) at any time during the Standstill Period (1) Pegasystems requests in writing an opportunity to meet with the board of directors of\nChordiant, and (2) Chordiant does not grant such request within seven days following the date thereof or thereafter continue such discussions\nin good faith, then the restrictions set forth in this section 7 shall immediately terminate and cease to be of any further force or effect (it being\nunderstood that any good faith rejection by Chordiant of any offer or proposal made by Pegasystems as part of such discussions shall not cause\nthe restrictions set forth in this section 7 to terminate). The expiration of the Standstill Period or the termination of the restrictions set forth in\nthis section 7 will not terminate or otherwise affect any of the other provisions of this Agreement. Chordiant hereby represents and warrants to\nPegasystems that, during the 12-month period prior to the date of this Agreement, Chordiant has not entered into any confidentiality agreement\nin connection with a Change of Control Transaction that does not a include a standstill provision.\n3. Term. Section 13(i) of the Confidentiality Agreement is hereby deleted in its entirety and replaced with the following:\n(i) This Agreement shall terminate on the third anniversary of the Effective Date; provided, however, that (i) the restrictions and\ncovenants set forth in this Agreement relating to Confidential Information consisting of or relating to trade secrets, intellectual property,\nintellectual property rights and/or technical information shall terminate on the sixth anniversary of the Effective Date; and (ii) the termination\nof this Agreement shall not relieve any Party from any liability with respect to any violation or breach of any provision contained in this\nAgreement.\n4. Miscellaneous.\n(a) Defined terms used but not defined herein shall have the meaning ascribed to them in the Confidentiality Agreement.\n(b) Except as otherwise provided herein, the Confidentiality Agreement shall remain in full force and effect.\n(c) This Amendment may be executed in several counterparts, each of which shall constitute an original and all of which, when taken\ntogether, shall constitute one agreement. The exchange of a fully executed Amendment (in counterparts or otherwise) by electronic\ntransmission or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Amendment.\n[Remainder of page intentionally left blank]\n2\nThe parties have caused this Amendment to be executed as of the date first written above.\nCHORDIANT SOFTWARE, INC.\nPEGASYSTEMS INC.\nBy: /s/ Robert A. Roepke, Jr.\nBy: /s/ Shawn Hoyt\nName: Robert A. Roepke, Jr.\nName: Shawn Hoyt\nTitle: VP, Finance\nTitle: General Counsel\nSignature Page to Amendment to Confidentiality Agreement\nAMENDMENT TO CONFIDENTIALITY AGREEMENT\nThis Amendment to Confidentiality Agreement (this “Amendment”) is entered into as of March 3, 2010, between Chordiant Software, Inc., a\nDelaware corporation (“Chordiant”), and Pegasystems Inc., a Delaware corporation (“Pegasystems”).\nRecitals\nA. Chordiant and Pegasystems are parties to a Confidentiality Agreement dated as of February 16, 2009 (as previously amended on March 16,\n2009 and March 2, 2010, the “Confidentiality Agreement”). Capitalized terms not otherwise defined in this Amendment will have the meanings\ngiven to such terms in the Confidentiality Agreement.\nB. The parties desire to amend the Confidentiality Agreement as set forth herein.\nAgreement\nThe parties to this Amendment, intending to be legally bound, agree as follows:\n1. The Confidentiality Agreement is hereby amended by substituting the following new Section 14 in lieu of the prior Section 14 added by\namendment on March 16, 2009, and by deleting the prior Section 15 added by amendment on March 16, 2009. Accordingly, Section 14 will read in\nits entirety as follows:\n“14. Disclosure Procedures for Highly Confidential Information.\n(a) Notwithstanding anything in this Agreement to the contrary, the parties agree that the only individuals representing Pegasystems who\nwill be granted access to Highly Confidential Information (as defined below) are those Pegasystems employees and representatives of\nPegasystems’ financial and legal advisors listed on Exhibit A hereto (the “Clean Team”). For purposes of this Agreement, “Highly\nConfidential Information” means (1) Chordiant’s PBC reports, the audit work papers relating to the Company prepared by BDO Seidman, LLP,\nChordiant’s independent auditors, (2) any Chordiant customer, OEM or partner agreement, and (3) and any other Confidential Information\nidentified by Chordiant in writing (prior to disclosure to Pegasystems or its representatives) to be of this level of sensitivity. Notwithstanding\nanything herein to the contrary, any information previously provided to Pegasystems through the data room as Highly Confidential Financial\nInformation or Other Highly Confidential Information shall be Highly Confidential Information hereunder.\n(b) Pegasystems hereby agrees to cause the individuals on the Clean Team not to disclose, prior to the consummation of the proposed\nacquisition of Chordiant by Pegasystems, any of the Highly Confidential Information to any employees, officers, directors, or representatives\nof Pegasystems, or to any other individuals who are not on the Clean Team, except that they may disclose this information in written\nsummaries, so long as these written summaries do not provide pricing terms, customer-specific information, or provide the means of\ndetermining the identity of specific customers, to members of the Pegasystems due diligence team determined by the Clean Team to have a\ngood faith “need to know” basis for the information at the level of detail these summaries provide. Subsequent to signing a definitive\nagreement but prior to consummating the transaction, Pegasystems may request that individuals not listed on Exhibit A have access to\nspecified Highly Confidential Information for integration planning purposes, with access subject to the prior written approval of Chordiant.\n2. Except as it has been specifically amended pursuant to Section 1 of this Amendment, the Confidentiality Agreement will continue in full force and\neffect.\n3. This Amendment may be executed in counterparts, each of which will constitute an original and all of which, when taken together, will constitute\none agreement.\nThe parties to this Amendment have caused this Amendment to be executed and delivered as of the date first set forth above.\nCHORDIANT SOFTWARE, INC.\nBy: /s/ David Zuckerman\nName: David Zuckerman\nTitle: VP, General Counsel and Secretary\nPEGASYSTEMS INC.\nBy: /s/ Shawn Hoyt\nName: Shawn Hoyt\nTitle: General Counsel and Secretary\n2
+b970c7aa92ceff20f116a49c87cbfda0.pdf	effective_date jurisdiction party term	CONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (the "Agreement"), is made this 19th day of December, 2007 by and between Welocalize, Inc. , a Delaware\nCorporation ("Welocalize"), and Targetek Co. , Ltd. ("Supplier").\nWHEREAS, the Supplier will provide certain specialized services to include software development, translation, localization and globalization consulting (the\n"Services") for customers of Welocalize (each, a "Customer Company") or for Welocalize and,\nWHEREAS, the Supplier will need to have access to certain proprietary technology and materials (including methodologies, translation memory databases,\nsoftware programs and source code, identification names and passwords, documentation and/or marketing materials or other business information) in order to\nevaluate its strategy for delivering the Services and for actually delivering the Services; and,\nWHEREAS, the Supplier and Welocalize consider such documents, identification names and passwords, records, translation memory databases and information\npertaining to products confidential and do not want them disclosed to third parties;\nNOW, THEREFORE IN CONSIDERATION of the mutual covenants and conditions herein contained, the parties agree as follows:\n1. OBLIGATION NOT TO USE OR DISCLOSE\nBoth parties agree to keep confidential all information concerning the other party's business or its ideas, products, customers or services that could be considered\nto be "Confidential Information," as such term is defined herein.\nThe receiving party will not, during or subsequent to the term of this Agreement, use the Confidential Information for any purpose whatsoever other than the\nperformance of the Services for the benefit of Welocalize, or disclose Confidential Information to any third party other than its employees or subcontractors who\nhave a need to have access to and knowledge of the Confidential Information solely in connection with the performance of Services hereunder.\nPrior to disclosure, the receiving party shall have entered into non-disclosure agreements with such employees and subcontractors having obligations of\nconfidentiality as strict as those contained in this Section, to ensure against unauthorized use or disclosure of Confidential Information.\n2. DEFINITION OF CONFIDENTIAL INFORMATION\n"Confidential Information" shall be deemed to include any technology, proprietary information, technical data, trade secrets and/or know-how, including, without\nlimitation, research, product plans, products, services, customers, customer lists, pricing, revenue, markets, software, developments, inventions, processes,\nformulas, technology, designs, drawings, engineering, hardware configuration information, methodologies, translation memory databases, software programs and\nsource code including those licensed by Welocalize and made available to Supplier for the purpose of facilitating Supplier's performance of services for\nWelocalize's or its customers' benefit, identification names and passwords, documentation, proprietary information belonging to third-party Welocalize customers\nor licensors, and/or marketing, finances or other business information, disclosed by the disclosing party either directly or indirectly in writing, orally, electronically,\nor by drawings or inspection of parts or equipment, including but not limited to any work product delivered hereunder, and other such information which, by its\nnature, is normally understood to be confidential.\n1\nCONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\n3. EXCLUSIONS\nThe obligations described in Section 1 shall not extend to the following:\n•\nConfidential Information which at the time of\ndisclosure is in the public domain\n•\nConfidential Information which after generation or\ndisclosure is published or otherwise becomes part of\nthe public domain through no fault of the receiving\nparty (but only after and to the extent that it is\npublished or otherwise becomes part of the public\ndomain)\n•\nConfidential Information which either party can show\nwas in its possession at the time of generation or\ndisclosure and was not acquired, directly or indirectly,\nfrom the other party or from a third party under an\nobligation of confidence\n•\nConfidential Information which was received after the\ntime of generation or disclosure hereunder, from a\nthird party who did not require that party to hold it in\nconfidence and who did not acquire it, directly or\nindirectly, from the other party under an obligation of\nconfidence; and\n•\nConfidential Information which the receiving party can\nshow was developed independently without benefit of,\nor being based on, information generated hereunder\nor made available by the other party\n4. STANDARD OF CARE\nEach party shall exercise at least such care in protection of the confidential information of the other as they exercise in the protection of Confidential Information\nof their own, but in no event shall such party exercise less than reasonable care in doing so.\nIt is the Supplier's responsibility to notify Welocalize if and when an employee with access to their identification names and passwords leaves the company.\nWelocalize will reset the password upon notification.\n5. ACTS OF EMPLOYEES, FT AL.\nEach party shall be responsible for the acts or failures to act of its respective employees, including in Supplier's case, any ex-employee possessed of\nidentification names and passwords as contemplated by Section 4 above,\n6. RETURN OF CONFIDENTIAL INFORMATION\nUpon the expiration or termination of this Agreement or upon the earlier demand of the other party, each party agrees to return to the other all of the documents,\nsoftware source code, translation memory databases (TMs), discs, files, printed materials and other Confidential Information provided hereunder, and all copies\nthereof.\n7. RIGHT TO DISCLOSE; NO LICENSE\nEach party warrants to the other that it has the unqualified right to disclose to each other the Confidential Information disclosed hereunder. All such Confidential\nInformation will remain the property of the disclosing party and the receiving party will not acquire any rights to that confidential information. No license or other\nrights in and to Confidential Information is granted hereunder and neither of the parties hereto is under any obligation to enter into any business/technical\narrangement or agreement with the other party by virtue of this Agreement or any disclosure hereunder, or in fact to make any disclosure hereunder. In particular,\nthis Agreement does not grant any right or license, express or implied, to use Confidential Information except as permitted by this Agreement, nor any right to\nlicense, express or implied, under any patent, nor any right to purchase, distribute or sell any product.\n8. CLIENT CONTACT\nExcept where expressly authorized by Welocalize, the Supplier shall not contact any client for whom it is performing work through Welocalize.\n2\nCONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\n9. NOTIFICATION OF PARTNER OWNERSHIP CHANGE . In the event of a change in ownership of the Supplier pursuant to which the group of equity owners\npossessing a majority of the equity interests of the company immediately prior to the change, fails to possess a majority after the change, the Supplier shall\nimmediately notify Welocalize in writing about the change. This applies regardless of context and regardless of the corporate form of Supplier — e .g . , it applies to\npartnerships, acquisitions, mergers and/or the bringing in of new investors, etc.\n10. ASSIGNMENT . Neither party shall assign this Agreement (directly, indirectly, or by operation of law as the result of a merger, sale of equity interest or\notherwise) without the other party's consent, and any attempt to do so shall be void. Notwithstanding the foregoing, however, a party shall have the right to assign\nthis Agreement to an affiliate, provided the affiliate agrees in writing to be bound by the terms of this Agreement, and provided that such assignment shall not\nrelease the assigning party from its obligations hereunder.\n11. NON-HIRING. During any period in which this Agreement is effective, and for twelve (12) months thereafter, neither party will solicit any employee of the other\nparty for the purposes of offering employment. Each party shall promptly notify the other of any communications with any personnel regarding employment.\n12. NON-SOLICITATION . During the term of this Agreement and for twelve (12) months thereafter, the Supplier agrees that it will not directly or indirectly\napproach any Customer Company for whom it is providing Services with the intention of providing such Services, or similar services, directly to the Customer\nCompany. All communication on projects and on the Services will be through Welocalize project manager unless otherwise authorized by Welocalize in writing.\nThe Supplier will promptly notify Welocalize if the Supplier is approached directly or indirectly by the Customer Company to perform the work for which it has been\nengaged by Welocalize to perform for Customer Company, or by a competitor of Welocalize to perform the work for which it has been engaged by Welocalize to\nperform for Customer Company. This restriction does not apply with respect to any service engagement between the Supplier (either directly or through other\nMLVs) to a Customer Company in effect prior to the date of this Agreement.\n13. PARTNER COMPLIANCE WITH LAWS . The Supplier shall not take any action, or fail to warn Welocalize not to take any action when Supplier is possessed\nof advance knowledge of Welocalize's intended action, where such action or failure to warn may cause Welocalize to be in violation of any law in any jurisdiction\nin any service area, or the U.S . , Including but not limited to the U.S . Foreign Corrupt Practices Act of 1977 as amended, the U.S. Export Control Laws and the\nU.S . Anti-Boycott laws.\n14. INDEMNIFICATION; EQUITABLE RELIEF. The Supplier shall reimburse and indemnify Welocalize for any losses or damages incurred by it as a result of any\nbreach by the Supplier of this Agreement. The Supplier acknowledges that monetary damages may not be an adequate remedy for a breach of this agreement by\nthe Supplier and, consequently, that an injunction and/or other appropriate equitable relief may be obtained to remedy a breach or threatened breach hereof.\n15. TERM. This Agreement commences on the Effective Date for an initial period of one year and shall automatically renew on each anniversary of the Effective\nDate for successive one-year periods, unless neither party has disclosed any Confidential Information to the other party within the prior six (6) months.\nNotwithstanding the foregoing, the obligations of confidentiality set forth in this Agreement shall survive expiration of the Agreement for a period equal to the\nlonger of (a) three (3) years following the last disclosure of Confidential Information made hereunder or, (b) if the Confidential Information constitutes a trade\nsecret under applicable law, for such time as it remains a trade secret. Nothing in this Agreement shall be construed so as to require either party to disclose any\nparticular Confidential Information to the other.\n16. CHOICE OF LAW . This Agreement shall be governed in accordance with the laws of the State of Maryland, United States of America, excluding principles of\nconflict of laws. Each party agrees and consents to venue and jurisdiction in connection with any action arising hereunder, or in connection herewith, solely within\nthe state courts sitting in Frederick County or Montgomery County, Maryland or, if a federal action, the federal District Court for the District of Maryland, in each\ncase at the option of Welocalize.\n3\nCONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\n17. MISCELLANEOUS . This Agreement constitutes the entire agreement between the parties hereto and supersedes and cancels any prior agreements or\ncommunications, whether oral or written, between the Parties hereto relating to the subject matter hereof. This Agreement may not be changed, waived,\ndischarged or terminated orally, but only by an agreement in writing signed by the party against which the enforcement of such change, waiver, discharge or\ntermination is sought. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which shall be\ndeemed to be one and the same instrument.\nIN WITNESS HEREOF, the parties hereto by their duly authorized representatives have executed this Agreement as of the date first written above.\nDate: __09/10/07__\nDate: __12/19/07__\nAccepted by:\nAccepted by:\nWelocalize Inc.\nTargetek Co., Ltd.\n(Company Name)\n(Company Name)\n/s/ Olga Blasco\n/s/ Wen-Hui Lee\n(Signature)\n(Signature)\nOlga Blasco\nLee, Wen-Hui\n(Name)\n(Name Printed)\nDirector, Global Language Services\nApproved Contract Officer\n(Title)\n(Title)\n52-2212421\n(Federal ID#)\n(Federal ID# or Tax ID)\n241 East 4th Street. Suite 207\n11F, No. 216, Sec. 2,\nFrederick. Maryland 21701\nNanjina E. Rd. , Taipei 10489. Taiwan\n(Address)\n(Address)\n4	CONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NO N-DISC LOSURE AGREEMENT (the "Agreement"), is made this 19th day of December, 2007 by and between Welocalize, Inc., a Delaware\nCorporation ("Welocalize"), and Targetek Co., Ltd. ("Supplier").\nWHE REAS, the Supplier will provide certain specialized sen/ices to include software development, translation, localization and globalization consulting (the\n"Sen/ices") for customers of Welocalize (each, a "C ustomer Company") or for Welocalize and,\nWHE REAS, the Supplier will need to have access to certain proprietary technology and materials (including methodologies, translation memory databases,\nsoftware programs and source code, identification names and passwords, documentation and/or marketing materials or other business information) in order to\nevaluate is strategy for delivering the Services and for actually delivering the Sen/ices; and,\nWHE REAS, the Supplier and Welocalize consider such documens, identification names and passwords, records, translation memory databases and information\npertaining to producs confidential and do notwant them disclosed to third parties;\nNOW, THEREFORE IN CONSIDERATION ofthe mutual covenants and conditions herein contained, the parties agree as follows:\n1. OBLIGATION NOT TO USE OR DISCLOSE\nBoth parties agree to keep confidential all information concerning the other party's business or is ideas, producs, customers or services thatcould be considered\nto be "Confidential Information," as such term is defined herein.\nThe receiving party will not, during or subsequent to the term ofthis Agreement, use the Confidential Information for any purpose whasoever other than the\nperformance of the Sen/ices for the benefit of Welocalize, or disclose Confidential Information to any third party other than is employees or subcontractors who\nhave a need to have access to and knowledge ofthe Confidential Information solely in connection with the performance of Sen/ices hereunder.\nPrior to disclosure, the receiving party shall have entered into non-disclosure agreemens with such employees and subcontractors having obligations of\nconfidentiality as strict as those contained in this Section, to ensure against unauthorized use or disclosure ofConfidential Information.\n2. DEFINITION OF CONFIDENTIAL INFORMATION\n"Confidential Information" shall be deemed to include any technology, proprietary information, technical data, trade secres and/or know-how, including, without\nlimitation, research, product plans, producs, sen/ices, customers, customer liss, pricing, revenue, markes, software, developmens, inventions, processes,\nformulas, technology, designs, drawings, engineering, hardware configuration information, methodologies, translation memory databases, software programs and\nsource code including those licensed by Welocalize and made available to Supplier for the purpose offacilitating Supplier's performance ofservices for\nWelocalize's or is customers' benefit, identification names and passwords, documentation, proprietary information belonging to third-party Welocalize customers\nor licensors, and/or marketing, finances or other business information, disclosed by the disclosing party either directly or indirectly in writing, orally, electronically,\nor by drawings or inspection of pars or equipment, including but not limited to any work product delivered hereunder, and other such information which, by is\nnature, is normally understood to be confidential.\n \nCONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\n3. EXCLUSIONS\nThe obligations described in Section 1 shall not extend to the following:\nConfidential Information which at the time of\ndisclosure is in the public domain\nConfidential Information which after generation or\ndisclosure is published or othenNise becomes part of\nthe public domain through no fault of the receiving\nparty (butonly after and to the extentthat it is\npublished or otherwise becomes part of the public\ndomain)\nConfidential Information which either party can show\nwas in its possession at the time of generation or\n. disclosure and was not acquired, directly or indirectly,\nfrom the other party or from a third party under an\nobligation of confidence\nConfidential Information which was received after the\ntime of generation or disclosure hereunder, from a\nthird party who did not require that party to hold it in\nconfidence and who did not acquire it, directly or\nindirectly, from the other party under an obligation of\nconfidence; and\nConfidential Information which the receiving party can\nshow was developed independently without benefit of,\nor being based on, information generated hereunder\nor made available by the other party\n4. STANDARD OF CARE\nEach party shall exercise at leastsuch care in protection ofthe confidential information ofthe other as they exercise in the protection ofConfidential Information\nof their own, but in no eventshall such party exercise less than reasonable care in doing so.\nIt is the Supplier's responsibility to notify Welocalize if and when an employee with access to their identification names and passwords leaves the company.\nWelocalize will reset the password upon notification.\n5.ACTS OF EMPLOYEES, FT AL.\nEach party shall be responsible for the acts or failures to act of its respective employees, including in Supplier's case, any ex-employee possessed of\nidentification names and passwords as contemplated by Section 4 above,\n6. RETURN OF CONFIDENTIAL INFORMATION\nUpon the expiration or termination of this Agreement or upon the earlier demand of the other party, each party agrees to return to the other all of the documents,\nsoftware source code, translation memory databases (TMs), discs, files, printed materials and other Confidential Information provided hereunder, and all copies\nthereof.\n7. RIGHT TO DISCLOSE; NO LICENSE\nEach party warrants to the other that it has the unqualified right to disclose to each other the Confidential Information disclosed hereunder. All such Confidential\nInformation will remain the property ofthe disclosing party and the receiving party will not acquire any rights to thatconfidential information. No license or other\nrights in and to Confidential Information is granted hereunder and neither ofthe parties hereto is under any obligation to enter into any business/technical\narrangement or agreementwith the other party by virtue ofthis Agreementor any disclosure hereunder, or in factto make any disclosure hereunder. In particular,\nthis Agreement does notgrant any right or license, express or implied, to use Confidential Information except as permitted by this Agreement, nor any rightto\nlicense, express or implied, under any patent, nor any right to purchase, distribute or sell any product.\n8. CLIENT CONTACT\nExceptwhere expressly authorized by Welocalize, the Supplier shall not contact any client for whom it is performing work through Welocalize.\n \nCONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\n9. NOTIFICATION OF PARTN E R OWNE RSHIP C HANGE. In the eventof a change in ownership ofthe Supplier pursuant to which the group of equity owners\npossessing a majority of the equity interests of the company immediately prior to the change, fails to possess a majority after the change, the Supplier shall\nimmediately notify Welocalize in writing aboutthe change. This applies regardless of context and regardless of the corporate form of Supplier — e.g., it applies to\npartnerships, acquisitions, mergers and/or the bringing in of new investors, etc.\n10. ASSIGN ME NT. Neither party shall assign this Agreement (directly, indirectly, or by operation of law as the result of a merger, sale ofequity interestor\nothenNise) without the other party's consent, and any attempt to do so shall be void. Notwithstanding the foregoing, however, a party shall have the rightto assign\nthis Agreement to an affiliate, provided the affiliate agrees in writing to be bound by the terms of this Agreement, and provided that such assignment shall not\nrelease the assigning party from its obligations hereunder.\n11. NO N-HIRING. During any period in which this Agreement is effective, and for twelve (12) months thereafter, neither party will solicit any employee ofthe other\nparty for the purposes ofoffering employment. Each party shall promptly notify the other of any communications with any personnel regarding employment.\n12. NO N-SOLIC ITATION. During the term ofthis Agreement and for twelve (12) months thereafter, the Supplier agrees that itwill not directly or indirectly\napproach any Customer Company for whom it is providing Sen/ices with the intention of providing such Services, or similar sen/ices, directly to the Customer\nCompany. All communication on projects and on the Services will be through Welocalize project manager unless othenNise authorized by Welocalize in writing.\nThe Supplier will promptly notify Welocalize if the Supplier is approached directly or indirectly by the Customer Company to perform the work for which it has been\nengaged by Welocalize to perform for Customer Company, or by a competitor of Welocalize to perform the work for which it has been engaged by Welocalize to\nperform for Customer Company. This restriction does not apply with respect to any service engagement between the Supplier (either directly or through other\nMLVs) to a Customer Company in effect prior to the date of this Agreement.\n13. PARTN E R COMP LIANC E WITH LAWS. The Supplier shall not take any action, or fail to warn Welocalize not to take any action when Supplier is possessed\nof advance knowledge ofWelocalize's intended action, where such action or failure to warn may cause Welocalize to be in violation of any law in anyjurisdiction\nin any sen/ice area, orthe U.S., Including butnotlimited to the US. Foreign Corrupt Practices Actof 1977 as amended, the US. Export Control Laws and the\nUS. Anti-Boycottlaws.\nl4. INDEMNIFICATION; EOUITAB LE RELIEF. The Supplier shall reimburse and indemnify Welocalize for any losses or damages incurred by itas a result of any\nbreach by the Supplier of this Agreement. The Supplier acknowledges that monetary damages may not be an adequate remedy for a breach of this agreement by\nthe Supplier and, consequently, that an injunction and/or other appropriate equitable relief may be obtained to remedy a breach or threatened breach hereof.\n15. TE RM. This Agreementcommences on the Effective Date for an initial period of one year and shall automatically renew on each anniversary of the Effective\nDate for successive one-year periods, unless neither party has disclosed any Confidential Information to the other party within the prior six (6) months.\nNotwithstanding the foregoing, the obligations ofconfidentiality set forth in this Agreementshall sun/ive expiration of the Agreementfor a period equal to the\nlonger of (a) three (3) years following the lastdisclosure of Confidential Information made hereunder or, (b) if the Confidential Information constitutes a trade\nsecret under applicable law, for such time as it remains a trade secret. Nothing in this Agreement shall be construed so as to require either party to disclose any\nparticular Confidential Information to the other.\n16. CHOIC E OF LAW. This Agreement shall be governed in accordance with the laws of the State of Maryland, United States ofAmerica, excluding principles of\nconflict of laws. Each party agrees and consents to venue and jurisdiction in connection with any action arising hereunder, or in connection herewith, solely within\nthe state courts sitting in Frederick County or Montgomery County, Maryland or, if a federal action, the federal DistrictCourtfor the Districtof Maryland, in each\ncase atthe option ofWelocalize.\n \nCONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\n17. MISC E LLAN EOUS. This Agreementconstitutes the entire agreement between the parties hereto and supersedes and cancels any prior agreements or\ncommunications, whether oral or written, between the Parties hereto relating to the subject matter hereof. This Agreement may not be changed, waived,\ndischarged or terminated orally, butonly by an agreement in writing signed by the party against which the enforcement ofsuch change, waiver, discharge or\ntermination is sought. This Agreement may be executed in any number of counterparts, each ofwhich shall be deemed an original, and all of which shall be\ndeemed to be one and the same instrument.\nIN WITN ESS HE REOF, the parties hereto by their duly authorized representatives have executed this Agreement as of the date firstwritten above.\nDate: __09/10/07__ Date: __12/19/07__\nAccepted by: Accepted by:\nWelocalize Inc. Targetek Co., Ltd.\n(Company Name) (Company Name)\n/s/Olga Blasco /s/Wen-Hui Lee\n(Signature) (Signature)\nOlga Blasco Lee, Wen-Hui\n(Name) (Name Printed)\nDirector, Global Language Services Approved ContractOf'ficer\n(Title) (Title)\n52-2212421\n(Federal ID#) (Federal ID#or Tax ID)\n241 East 4th Street. Suite 207 11F, No. 216, Sec. 2,\nFrederick. Maryland 21701 Nanjina E. Rd., Taipei 10489. Taiwan\n(Address) (Address)\n	CONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (the "Agreement"), is made this 19th day of December, 2007 by and between Welocalize, Inc., a Delaware\nCorporation ("Welocalize"), and Targetek Co., Ltd. ("Supplier").\nWHEREAS, the Supplier will provide certain specialized services to include software development, translation, localization and globalization consulting (the\n"Services") for customers of Welocalize (each, a "Customer Company") or for Welocalize and,\nWHEREAS, the Supplier will need to have access to certain proprietary technology and materials (including methodologies, translation memory databases,\nsoftware programs and source code, identification names and passwords, documentation and/or marketing materials or other business information) in order to\nevaluate its strategy for delivering the Services and for actually delivering the Services; and,\nWHEREAS, the Supplier and Welocalize consider such documents, identification names and passwords, records, translation memory databases and information\npertaining to products confidential and do not want them disclosed to third parties;\nNOW, THEREFORE IN CONSIDERATION of the mutual covenants and conditions herein contained, the parties agree as follows:\n1. OBLIGATION NOT TO USE OR DISCLOSE\nBoth parties agree to keep confidential all information concerning the other party's business or its ideas, products, customers or services that could be considered\nto be "Confidential Information," as such term is defined herein.\nThe receiving party will not, during or subsequent to the term of this Agreement, use the Confidential Information for any purpose whatsoever other than the\nperformance of the S ervices for the benefit of Welocalize, or disclose Confidential Information to any third party other than its employees or subcontractors who\nhave a need to have access to and knowledge of the Confidential Information solely in connection with the performance of Services hereunder.\nP rior to disclosure, the receiving party shall have entered into non-disclosure agreements with such employees and subcontractors having obligations of\nconfidentiality as strict as those contained in this Section to ensure against unauthorized use or disclosure of Confidential Information.\n2. DEFINITION OF CONFIDENTIAL INFORMATION\n"Confidential Information" shall be deemed to include any technology, proprietary information, technical data, trade secrets and/or know-how, including, without\nlimitation, research, product plans, products, services, customers, customer lists, pricing, revenue, markets, software, developments, inventions, processes,\nformulas, technology, designs, drawings, engineering, hardware configuration information, methodologies, translation memory databases, software programs and\nsource code including those licensed by Welocalize and made available to s upplier for the purpose of facilitating Supplier's performance of services for\nWelocalize's or its customers' benefit, identification names and passwords documentation, proprietary information belonging to third-party Welocalize customers\nor licensors, and/or marketing, finances or other business information, disclosed by the disclosing party either directly or indirectly in writing, orally, electronically,\nor by drawings or inspection of parts or equipment, including but not limited to any work product delivered hereunder, and other such information which, by its\nnature, is normally understood to be confidential.\n1\nCONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\n3. EXCLUSIONS\nThe obligations described in Section 1 shall not extend to the following:\nConfidential Information which at the time of\ndisclosure is in the public domain\nConfidential Information which after generation or\ndisclosure is published or otherwise becomes part of\nthe public domain through no fault of the receiving\nparty (but only after and to the extent that it is\npublished or otherwise becomes part of the public\ndomain)\nConfidential Information which either party can show\nwas in its possession at the time of generation or\ndisclosure and was not acquired, directly or indirectly,\nfrom the other party or from a third party under an\nobligation of confidence\nConfidential Information which was received after the\ntime of generation or disclosure hereunder, from a\nthird party who did not require that party to hold it in\nconfidence and who did not acquire it, directly or\nindirectly, from the other party under an obligation of\nconfidence; and\nConfidential Information which the receiving party can\nshow was developed independently without benefit of,\nor being based on, information generated hereunder\nor made available by the other party\n4. STANDARD OF CARE\nEach party shall exercise at least such care in protection of the confidential information of the other as they exercise in the protection of Confidential Information\nof their own, but in no event shall such party exercise less than reasonable care in doing so.\nIt is the Supplier's responsibility to notify Welocalize if and when an employee with access to their identification names and passwords leaves the company.\nWelocalize will reset the password upon notification.\n5. ACTS OF EMPLOYEES, FT AL.\nEach party shall be responsible for the acts or failures to act of its respective employees, including in Supplier's case, any ex-employee possessed of\nidentification names and passwords as contemplated by Section 4 above,\n6. RETURN OF CONFIDENTIAL INFORMATION\nUpon the expiration or termination of this Agreement or upon the earlier demand of the other party, each party agrees to return to the other all of the documents,\nsoftware source code, translation memory databases (TMs), discs, files, printed materials and other Confidential Information provided hereunder, and all copies\nthereof.\n7. RIGHT TO DISCLOSE; NO LICENSE\nEach party warrants to the other that it has the unqualified right to disclose to each other the Confidential Information disclosed hereunder. All such Confidentia\nInformation will remain the property of the disclosing party and the receiving party will not acquire any rights to that confidential information. No license or other\nrights in and to Confidential Information is granted hereunder and neither of the parties hereto is under any obligation to enter into any business/technical\narrangement or agreement with the other party by virtue of this Agreement or any disclosure hereunder, or in fact to make any disclosure hereunder. In particular,\nthis Agreement does not grant any right or license, express or implied, to use Confidential Information except as permitted by this Agreement, nor any right to\nlicense, express or implied, under any patent, nor any right to purchase, distribute or sell any product.\n8. CLIENT CONTACT\nExcept where expressly authorized by Welocalize, the Supplier shall not contact any client for whom it is performing work through Welocalize.\n2\nCONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\n9. NOTIFICATION OF PARTNER OWNERSHIP CHANGE. In the event of a change in ownership of the Supplier pursuant to which the group of equity owners\npossessing a majority of the equity interests of the company immediately prior to the change, fails to possess a majority after the change, the S upplier shall\nimmediately notify Welocalize in writing about the change. This applies regardless of context and regardless of the corporate form of s upplier e.g., it applies to\npartnerships, acquisitions, mergers and/or the bringing in of new investors, etc.\n10 ASSIGNMENT. Neither party shall assign this Agreement (directly, indirectly, or by operation of law as the result of a merger, sale of equity interest or\notherwise) without the other party's consent, and any attempt to do so shal be void. Notwithstanding the foregoing, however, a party shall have the right\nto\nassign\nthis Agreement to an affiliate, provided the affiliate agrees in writing to be bound by the terms of this Agreement, and provided that such assignment shall not\nrelease the assigning party from its obligations hereunder.\n11. NON-HIRING. During any period in which this Agreement is effective, and for twelve (12) months thereafter, neither party will solicit any employee of the other\nparty for the purposes of offering employment. Each party shall promptly notify the other of any communications with any personnel regarding employment.\n12. NON-SOLICITATION. During the term of this Agreement and for twelve (12) months thereafter, the s upplier agrees that it will not directly or indirectly\napproach any Customer Company for whom it is providing Services with the intention of providing such Services, or similar services, directly to the Customer\nCompany. All communication on projects and on the Services will be through Welocalize project manager unless otherwise authorized by Welocalize in writing\nThe Supplier will promptly notify Welocalize if the S upplier is approached directly or indirectly by the Customer Company to perform the work for which it has been\nengaged by Welocalize to perform for Customer Company, or by a competitor of Welocalize to perform the work for which it has been engaged by Welocalize to\nperform for Customer Company. This restriction does not apply with respect to any service engagement between the S upplier (either directly or through other\nMLVs) to a Customer Company in effect prior to the date of this Agreement.\n13.\nPARTNER COMPLIANCE WITH LAWS. The Supplier shall not take any action, or fail to warn Welocalize not to take any action when Supplier is possessed\nof advance knowledge of Welocalize's intended action, where such action or failure to warn may cause Welocalize to be in violation of any law in any jurisdiction\nin any service area, or the U.S., Including but not limited to the U.S. oreign Corrupt ractices Act of 1977 as amended, the U.S. xport Control Laws and the\nU.S. Anti-Boycott\n14.\nINDEMNIFICATION; EQUITABLE RELIEF. The Supplier shall reimburse and indemnify Welocalize for any losses or damages incurred by it as a result of any\nbreach by the Supplier of this Agreement. The Supplier acknowledges that monetary damages may not be an adequate remedy for a breach of this agreement by\nthe S upplier and, consequently, that an injunction and/or other appropriate equitable relief may be obtained to remedy a breach or threatened breach hereof.\n15. TERM. This Agreement commences on the ffective Date for an initial period of one year and shall automatically renew on each anniversary of the E Effective\nDate for successive one-year periods, unless neither party has disclosed any Confidential Information to the other party within the prior six (6) months.\nNotwithstanding the foregoing, the obligations of confidentiality set forth in this Agreement shall survive expiration of the Agreement for a period equal to the\nlonger of (a) three (3) years following the last disclosure of Confidential Information made hereunder or, (b) if the Confidential Information constitutes a trade\nsecret under applicable law, for such time as it remains a trade secret. Nothing in this Agreement shall be construed so as to require either party to disclose any\nparticular Confidential Information to the other.\n16. CHOICE OF LAW. This Agreement shall be governed in accordance with the laws of the State of Maryland, United States of America, excluding principles of\nconflict of laws. Each party agrees and consents to venue and jurisdiction in connection with any action arising hereunder, or in connection herewith, solely within\nthe state courts sitting in F rederick County or Montgomery County, Maryland or, if a federal action, the federal District Court for the District of Maryland, in each\ncase at the option of Welocalize.\n3\nCONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\n17. MISCELLANEOUS. This Agreement constitutes the entire agreement between the parties hereto and supersedes and cancels any prior agreements or\ncommunications, whether oral or written, between the arties hereto relating to the subject matter hereof. This Agreement may not be changed, waived,\ndischarged or terminated orally, but only by an agreement in writing signed by the party against which the enforcement of such change, waiver, discharge or\ntermination is sought. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which shall be\ndeemed to be one and the same instrument.\nIN WITNESS HEREOF, the parties hereto by their duly authorized representatives have executed this Agreement as of the date first written above.\nDate: 09/10/07\nDate: 12/19/07\nAccepted by:\nAccepted by:\nWelocalize Inc.\nTargetek Co., Ltd.\n(Company Name)\n(Company Name)\n/s/ Olga Blasco\n/s/ Wen-Hui Lee\n(Signature)\n(Signature)\nOlga Blasco\nLee, Wen-Hui\n(Name)\n(Name Printed)\nDirector, Globa Language Services\nApproved Contract Officer\n(Title)\n(Title)\n52-2212421\n(Federal ID#)\n(Federa ID # or Tax ID)\n241 East 4th Street. Suite 207\n11F, No. 216, Sec. 2,\nFrederick. Maryland 21701\nNanjina E. Rd., Taipei 10489. Taiwan\n(Address)\n(Address)\n4	CONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (the "Agreement"), is made this 19th day of December, 2007 by and between Welocalize, Inc. , a Delaware\nCorporation ("Welocalize"), and Targetek Co. , Ltd. ("Supplier").\nWHEREAS, the Supplier will provide certain specialized services to include software development, translation, localization and globalization consulting (the\n"Services") for customers of Welocalize (each, a "Customer Company") or for Welocalize and,\nWHEREAS, the Supplier will need to have access to certain proprietary technology and materials (including methodologies, translation memory databases,\nsoftware programs and source code, identification names and passwords, documentation and/or marketing materials or other business information) in order to\nevaluate its strategy for delivering the Services and for actually delivering the Services; and,\nWHEREAS, the Supplier and Welocalize consider such documents, identification names and passwords, records, translation memory databases and information\npertaining to products confidential and do not want them disclosed to third parties;\nNOW, THEREFORE IN CONSIDERATION of the mutual covenants and conditions herein contained, the parties agree as follows:\n1. OBLIGATION NOT TO USE OR DISCLOSE\nBoth parties agree to keep confidential all information concerning the other party's business or its ideas, products, customers or services that could be considered\nto be "Confidential Information," as such term is defined herein.\nThe receiving party will not, during or subsequent to the term of this Agreement, use the Confidential Information for any purpose whatsoever other than the\nperformance of the Services for the benefit of Welocalize, or disclose Confidential Information to any third party other than its employees or subcontractors who\nhave a need to have access to and knowledge of the Confidential Information solely in connection with the performance of Services hereunder.\nPrior to disclosure, the receiving party shall have entered into non-disclosure agreements with such employees and subcontractors having obligations of\nconfidentiality as strict as those contained in this Section, to ensure against unauthorized use or disclosure of Confidential Information.\n2. DEFINITION OF CONFIDENTIAL INFORMATION\n"Confidential Information" shall be deemed to include any technology, proprietary information, technical data, trade secrets and/or know-how, including, without\nlimitation, research, product plans, products, services, customers, customer lists, pricing, revenue, markets, software, developments, inventions, processes,\nformulas, technology, designs, drawings, engineering, hardware configuration information, methodologies, translation memory databases, software programs and\nsource code including those licensed by Welocalize and made available to Supplier for the purpose of facilitating Supplier's performance of services for\nWelocalize's or its customers' benefit, identification names and passwords, documentation, proprietary information belonging to third-party Welocalize customers\nor licensors, and/or marketing, finances or other business information, disclosed by the disclosing party either directly or indirectly in writing, orally, electronically,\nor by drawings or inspection of parts or equipment, including but not limited to any work product delivered hereunder, and other such information which, by its\nnature, is normally understood to be confidential.\n1\nCONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\n3. EXCLUSIONS\nThe obligations described in Section 1 shall not extend to the following:\n•\nConfidential Information which at the time of\ndisclosure is in the public domain\n•\nConfidential Information which after generation or\ndisclosure is published or otherwise becomes part of\nthe public domain through no fault of the receiving\nparty (but only after and to the extent that it is\npublished or otherwise becomes part of the public\ndomain)\n•\nConfidential Information which either party can show\nwas in its possession at the time of generation or\ndisclosure and was not acquired, directly or indirectly,\nfrom the other party or from a third party under an\nobligation of confidence\n•\nConfidential Information which was received after the\ntime of generation or disclosure hereunder, from a\nthird party who did not require that party to hold it in\nconfidence and who did not acquire it, directly or\nindirectly, from the other party under an obligation of\nconfidence; and\n•\nConfidential Information which the receiving party can\nshow was developed independently without benefit of,\nor being based on, information generated hereunder\nor made available by the other party\n4. STANDARD OF CARE\nEach party shall exercise at least such care in protection of the confidential information of the other as they exercise in the protection of Confidential Information\nof their own, but in no event shall such party exercise less than reasonable care in doing so.\nIt is the Supplier's responsibility to notify Welocalize if and when an employee with access to their identification names and passwords leaves the company.\nWelocalize will reset the password upon notification.\n5. ACTS OF EMPLOYEES, FT AL.\nEach party shall be responsible for the acts or failures to act of its respective employees, including in Supplier's case, any ex-employee possessed of\nidentification names and passwords as contemplated by Section 4 above,\n6. RETURN OF CONFIDENTIAL INFORMATION\nUpon the expiration or termination of this Agreement or upon the earlier demand of the other party, each party agrees to return to the other all of the documents,\nsoftware source code, translation memory databases (TMs), discs, files, printed materials and other Confidential Information provided hereunder, and all copies\nthereof.\n7. RIGHT TO DISCLOSE; NO LICENSE\nEach party warrants to the other that it has the unqualified right to disclose to each other the Confidential Information disclosed hereunder. All such Confidential\nInformation will remain the property of the disclosing party and the receiving party will not acquire any rights to that confidential information. No license or other\nrights in and to Confidential Information is granted hereunder and neither of the parties hereto is under any obligation to enter into any business/technical\narrangement or agreement with the other party by virtue of this Agreement or any disclosure hereunder, or in fact to make any disclosure hereunder. In particular,\nthis Agreement does not grant any right or license, express or implied, to use Confidential Information except as permitted by this Agreement, nor any right to\nlicense, express or implied, under any patent, nor any right to purchase, distribute or sell any product.\n8. CLIENT CONTACT\nExcept where expressly authorized by Welocalize, the Supplier shall not contact any client for whom it is performing work through Welocalize.\n2\nCONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\n9. NOTIFICATION OF PARTNER OWNERSHIP CHANGE . In the event of a change in ownership of the Supplier pursuant to which the group of equity owners\npossessing a majority of the equity interests of the company immediately prior to the change, fails to possess a majority after the change, the Supplier shall\nimmediately notify Welocalize in writing about the change. This applies regardless of context and regardless of the corporate form of Supplier — e .g . , it applies to\npartnerships, acquisitions, mergers and/or the bringing in of new investors, etc.\n10. ASSIGNMENT . Neither party shall assign this Agreement (directly, indirectly, or by operation of law as the result of a merger, sale of equity interest or\notherwise) without the other party's consent, and any attempt to do so shall be void. Notwithstanding the foregoing, however, a party shall have the right to assign\nthis Agreement to an affiliate, provided the affiliate agrees in writing to be bound by the terms of this Agreement, and provided that such assignment shall not\nrelease the assigning party from its obligations hereunder.\n11. NON-HIRING. During any period in which this Agreement is effective, and for twelve (12) months thereafter, neither party will solicit any employee of the other\nparty for the purposes of offering employment. Each party shall promptly notify the other of any communications with any personnel regarding employment.\n12. NON-SOLICITATION . During the term of this Agreement and for twelve (12) months thereafter, the Supplier agrees that it will not directly or indirectly\napproach any Customer Company for whom it is providing Services with the intention of providing such Services, or similar services, directly to the Customer\nCompany. All communication on projects and on the Services will be through Welocalize project manager unless otherwise authorized by Welocalize in writing.\nThe Supplier will promptly notify Welocalize if the Supplier is approached directly or indirectly by the Customer Company to perform the work for which it has been\nengaged by Welocalize to perform for Customer Company, or by a competitor of Welocalize to perform the work for which it has been engaged by Welocalize to\nperform for Customer Company. This restriction does not apply with respect to any service engagement between the Supplier (either directly or through other\nMLVs) to a Customer Company in effect prior to the date of this Agreement.\n13. PARTNER COMPLIANCE WITH LAWS . The Supplier shall not take any action, or fail to warn Welocalize not to take any action when Supplier is possessed\nof advance knowledge of Welocalize's intended action, where such action or failure to warn may cause Welocalize to be in violation of any law in any jurisdiction\nin any service area, or the U.S . , Including but not limited to the U.S . Foreign Corrupt Practices Act of 1977 as amended, the U.S. Export Control Laws and the\nU.S . Anti-Boycott laws.\n14. INDEMNIFICATION; EQUITABLE RELIEF. The Supplier shall reimburse and indemnify Welocalize for any losses or damages incurred by it as a result of any\nbreach by the Supplier of this Agreement. The Supplier acknowledges that monetary damages may not be an adequate remedy for a breach of this agreement by\nthe Supplier and, consequently, that an injunction and/or other appropriate equitable relief may be obtained to remedy a breach or threatened breach hereof.\n15. TERM. This Agreement commences on the Effective Date for an initial period of one year and shall automatically renew on each anniversary of the Effective\nDate for successive one-year periods, unless neither party has disclosed any Confidential Information to the other party within the prior six (6) months.\nNotwithstanding the foregoing, the obligations of confidentiality set forth in this Agreement shall survive expiration of the Agreement for a period equal to the\nlonger of (a) three (3) years following the last disclosure of Confidential Information made hereunder or, (b) if the Confidential Information constitutes a trade\nsecret under applicable law, for such time as it remains a trade secret. Nothing in this Agreement shall be construed so as to require either party to disclose any\nparticular Confidential Information to the other.\n16. CHOICE OF LAW . This Agreement shall be governed in accordance with the laws of the State of Maryland, United States of America, excluding principles of\nconflict of laws. Each party agrees and consents to venue and jurisdiction in connection with any action arising hereunder, or in connection herewith, solely within\nthe state courts sitting in Frederick County or Montgomery County, Maryland or, if a federal action, the federal District Court for the District of Maryland, in each\ncase at the option of Welocalize.\n3\nCONFIDENTIAL AND PROPRIETARY\nWelocalize, Inc\n17. MISCELLANEOUS . This Agreement constitutes the entire agreement between the parties hereto and supersedes and cancels any prior agreements or\ncommunications, whether oral or written, between the Parties hereto relating to the subject matter hereof. This Agreement may not be changed, waived,\ndischarged or terminated orally, but only by an agreement in writing signed by the party against which the enforcement of such change, waiver, discharge or\ntermination is sought. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which shall be\ndeemed to be one and the same instrument.\nIN WITNESS HEREOF, the parties hereto by their duly authorized representatives have executed this Agreement as of the date first written above.\nDate: __09/10/07__\nDate: __12/19/07__\nAccepted by:\nAccepted by:\nWelocalize Inc.\nTargetek Co., Ltd.\n(Company Name)\n(Company Name)\n/s/ Olga Blasco\n/s/ Wen-Hui Lee\n(Signature)\n(Signature)\nOlga Blasco\nLee, Wen-Hui\n(Name)\n(Name Printed)\nDirector, Global Language Services\nApproved Contract Officer\n(Title)\n(Title)\n52-2212421\n(Federal ID#)\n(Federal ID# or Tax ID)\n241 East 4th Street. Suite 207\n11F, No. 216, Sec. 2,\nFrederick. Maryland 21701\nNanjina E. Rd. , Taipei 10489. Taiwan\n(Address)\n(Address)\n4
+b9bfe58b6aa5e99ced3783edcc3ce9fc.pdf	effective_date jurisdiction party	EX-10 .1 2 a13-7365_1ex10d1.htm EX-10.1\nEXHIBIT 10.1\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”), is entered into on this 11th day of March, 2013, between Ikonics Corporation, a Minnesota corporation (the “Company”), and Joseph R. Nerges, an individual resident of\nthe State of Pennsylvania (the “Shareholder”).\nRECITALS\nWHEREAS, the common stock of the Company, par value $0.10 per share (the “Common Stock”), is the only authorized and issued voting security of the Company;\nWHEREAS, the Common Stock is traded in the Nasdaq Capital Market under the ticker symbol IKNX;\nWHEREAS, the Shareholder is the Company’s largest shareholder and is an “affiliate” as such term is defined under the Exchange Act;\nWHEREAS, the Shareholder has requested that the Company disclose material, nonpublic information regarding the Company and its Common Stock to the Shareholder; and\nWHEREAS, the Company is willing to disclose to the Shareholder certain material, nonpublic information regarding the Company or its Common Stock subject to and in accordance with the terms and conditions set forth\nin this Agreement.\nAGREEMENT\nNOW, THEREFORE, in view of the foregoing, the Parties agree as follows:\n1.\nCertain Definitions. As used herein:\n(a)\n“ Confidential Information” means any information regarding the Company or its Common Stock, whether in written, electronic or oral form, including data, reports, interpretations, forecasts,\nrecords, statements, documents and information of any kind concerning the Company or any of its subsidiaries which the Company or any of its Representatives provides to the Shareholder; provided, however, that “Confidential\nInformation” shall not include information that (i) has become available to the public other than as a result of a disclosure by the Shareholder or any of its Representatives, (ii) was available to the Shareholder or any of its Representatives\non a non-confidential basis prior to its disclosure to the Shareholder by the Company or any of its Representatives, (iii) has become available to the Shareholder or any of its Representatives on a non-confidential basis from a source other\nthan the Company or any of its Representatives, provided that such source is not bound by law or a confidentiality agreement in respect of such information with the Company or such Representative or otherwise prohibited from\ntransmitting such information to the Shareholder or such Representative by a contractual, legal or fiduciary obligation, or (iv) has been independently developed or acquired by the Shareholder or any of its Representatives without\nviolating any of its obligations under this Agreement.\n(b)\nThe term “person” shall mean an individual, corporation, partnership, limited liability company, association, trust, governmental entity, any other organization or entity or any group including any\nof the foregoing, and the terms “group” and “affiliate” shall have the meanings provided under the Exchange Act.\n(c)\n“ Exchange Act” means the Securities Exchange Act of 1934.\n(d)\n“Parties” means the Company and the Shareholder and “Party” means either of them.\n(e)\n“ Representative” means, in relation to any Party, such Party’s affiliates and such Party’s and its affiliates’ respective directors, officers, employees, agents or representatives, including, without\nlimitation, financial advisors, attorneys or accountants of such person.\n2.\nDisclosure of Confidential Information to the Shareholder.\n(a)\nIn light of the Shareholder’s status as the Company’s largest shareholder and as an affiliate of the Company, the Company may, in its sole discretion, disclose certain Confidential Information to the Shareholder\nwhich is initially expected to include the Company’s 2013 strategic plan and budget, a current status report on certain ongoing projects as of the date of this Agreement, and monthly financial information in the form provided to the\nCompany’s non-employee directors together with a brief narrative on such financial information from the Company’s Chief Executive Officer; provided however, that: (i) the Shareholder shall protect and maintain the confidentiality of\nany Confidential Information and shall not in any manner, directly or indirectly, disclose, in whole or in part, any Confidential Information to any person (including to the Shareholder’s Representatives), (ii) the Shareholder shall not in\nany manner, directly or indirectly, use any Confidential Information for any purpose other than analyzing the Shareholder’s investment in the Company, (iii) the Shareholder shall not, directly or indirectly, contact or have communications\nwith any person at the Company regarding any Confidential Information other than the Company’s Chief Executive Officer (currently Bill Ulland) or the Company’s Chief Financial Officer (currently Jon Gerlach), (iv) the Shareholder\nshall be subject to, and shall abide by, both the Company’s General Policy on Securities Trading by Company Employees, Agents and Advisors and the Company’s Supplemental Policy on Securities Trading by Officers, Directors and\nOther Access Personnel (including by refraining from trading in the Company’s Common Stock during all restricted trading periods described in such Supplemental Policy), copies of which have been provided to the Shareholder, and\n(v) the Shareholder shall take all steps necessary to comply with International Traffic in Arms Regulations with respect to the Confidential Information.\n(b)\nThe Shareholder acknowledges and agrees that (i) if the Company or any of its Representatives discloses to the Shareholder any Confidential Information about the Company or its Common Stock, that such\ndisclosure is being made pursuant to this Agreement and in accordance with the confidentiality agreement exclusion in Rule 100(b)(2)(ii) of Regulation FD promulgated under the Exchange Act, (ii) the Shareholder is otherwise aware of\nthe requirements of Regulation FD, and (iii) the Shareholder is aware that the United States securities laws\n2\nprohibit any person who has material, nonpublic information about a company from purchasing or selling securities of such company or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n3.\nExceptions to the Shareholder’s Confidentiality Obligations.\n(a)\nIn the event that the Shareholder is required by law, regulation or other legal process or is requested (by oral questions, interrogatories, requests for information or documents, subpoena, court\norder, civil investigative demand or other process) to disclose any Confidential Information, which disclosure is not otherwise permitted hereunder, the Shareholder shall provide the Company with prompt written notice of any such\nrequest or requirement (if legally permitted) so that the Company may seek an appropriate protective order or waive compliance with the provisions of this Agreement. If, failing the entry of a protective order or the receipt of a waiver\nhereunder, the Shareholder is, after consultation with legal counsel for the Shareholder, required or compelled to disclose Confidential Information pursuant to such request, the Shareholder may disclose that portion of the Confidential\nInformation which such counsel has advised that the Shareholder is required or compelled to disclose as aforesaid. In any event, the Shareholder will not oppose action by, and will cooperate with, the Company, at the Company’s\nexpense, in its efforts to obtain an appropriate protective order or other assurance that confidential treatment will be accorded the Confidential Information. All references to the Shareholder in this paragraph shall be deemed to include the\nShareholder’s Representatives.\n(b)\nIf at any time, in the opinion of legal counsel for the Shareholder, the Shareholder is required by law, regulation or other legal process or stock exchange or stock market rules to disclose\nConfidential Information in a context that is not covered by the immediately preceding Section 3(a), the Shareholder may disclose that portion of the Confidential Information that such counsel has advised that the Shareholder is required\nto disclose, provided that the Shareholder gives the Company prompt written notice of such disclosure (if legally permitted).\n4.\nNo Representations or Warranties. The Shareholder acknowledges and agrees that, except as expressly set forth in any definitive, written documentation, neither the Company nor any of its Representatives\nmakes any representation or warranty as to the accuracy or completeness of any Confidential Information and that neither the Company nor its Representatives shall have any liability to the Shareholder or any of its Representatives\nresulting from the use of the Confidential Information by the Shareholder.\n5.\nEquitable Remedies. The Shareholder agrees that money damages would not be a sufficient remedy for any breach of this Agreement by it or any of its Representatives and that the Company shall be entitled to\nspecific performance and injunctive or other equitable relief as remedies for any such breach. Such remedies shall not be deemed to be the exclusive remedies but shall be in addition to all other remedies available at law or in equity to the\nCompany.\n3\n6.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws of the State of Minnesota without giving effect to its conflicts of laws principles or rules.\n7.\nTerm; Survivability; Disclosure of Agreement. Notwithstanding anything to the contrary in this Agreement, the Company is not obligated to furnish the Shareholder with any Confidential Information and the\nCompany may terminate the Shareholder’s access to any Confidential Information at any time in its sole discretion. This Agreement may be terminated by either Party for any or no reason upon written notice to the other Party and shall\nterminate immediately upon the breach of this Agreement by either Party; provided, however, that the Shareholder’s confidentiality obligations under this Agreement shall remain effective and survive the termination of this Agreement\nwith respect to any Confidential Information furnished by the Company during the term of this Agreement. This Agreement may be disclosed by either Party in a filing with the Securities and Exchange Commission if required by\napplicable law or regulation.\n8.\nMiscellaneous. This Agreement sets forth the entire agreement of the Parties with respect to the subject matter hereof. This Agreement may not be assigned, in whole or in part, by either Party without the prior\nwritten consent of the other Party. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their successors and permitted assigns. This Agreement is solely for the benefit of the Parties and may not be\nenforced by any third party. If any of the provisions of this Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be affected thereby. No failure or delay in exercising any other right,\npower or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement\nmay only be amended by the mutual written agreement of the Parties.\n[signature page follows]\n4\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first set forth above.\nCOMPANY:\nIKONICS CORPORATION\n/s/ William C. Ulland\nBy:\nBill Ulland\nTitle:\nCEO\nSHAREHOLDER:\n/s/ Joseph R. Nerges\nJoseph R. Nerges\n[Signature page to Confidentiality Agreement]	EX-10.l 2 al3-7365_leXlOdl.htm EX-10.l\nEXHIBIT 10.1\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this "Agreement"), is entered into on this 11th day of March, 2013, between Ikonics Corporation, a Minnesom corporation (the "Company"), andJoseph R. Nerges, an individual resident of\nthe State of Pennsylvania (the "Shareholder").\nRECITALS\nWHEREAS, the common stock of the Company, par value $0.10 per share (the "Common Stock"), is the only authorized and issued voting security of the Company;\nWHEREAS, the Common Stock is traded in the Nasdaq Capital Market under the ticker symbol IKNX ,-\nWHEREAS, the Shareholder is the Company’s largest shareholder and is an ”affiliate" as such term is defined under the Exchange Act;\nWHEREAS, the Shareholder has requested that the Company disclose material, nonpublic information regarding the Company and its Common Stock to the Shareholder: and\nWHEREAS, the Company is willing to disclose to the Shareholder certain material, nonpublic information regarding the Company or its Common Stock subject to and in accordance with the terms and conditions set forth\nin this A greement.\nAG RE EM ENT\nNOW, THEREFORE, in view of the foregoing, the Parties agree as follows:\n1. Certain Definitions. As used herein:\n(a) ”Confidential Information" means any information regarding the Company orits Common Stock, whether in written, electronic or oral form, including data, reports, interpretations, forecasts,\nrecords, statements, documents and information of any kind concerning the Company or any of its subsidiaries which the Company or any of its Representatives provides to the Shareholder, Mded, 1m that "Confidential\nInformation" shall not include information that (i) has become available to the public other than as a result of a disclosure by the Shareholder or any of its Representatives, (ii) was available to the Shareholder or any of its Representatives\non a non-confidential basis prior to its disclosure to the Shareholder by the Company or any of its Representatives, (iii) has become available to the Shareholder or any of its Representatives on a non-confidential basis from a source other\nthan the Company or any of its Representatives, provided that such source is not bound by law or a confidentiality agreement in respect of such information with the Company or such Representative or otherwise prohibited from\ntransmitting such information to the Shareholder or such Representative by a contractual, legal or fiduciary obligation, or (iv) has been independently developed or acquired by the Shareholder or any of its Representatives without\nviolating any of its obligations under this Agreement\n(b) The term "person" shall mean an individual, corporation, partnership, limited liability company, association, trust, governmental entity, any other organization or entity or any group including any\nof the foregoing, and the terms "group" and "affiliate” shall have the meanings provided under the Exchange Act.\n(c) ”Exchange Act” means the Securities Exchange Act of 1934.\n(d) "Parties” means the Company and the Shareholder and "Party" means either of them.\n(e) ”Represenmtive” means, in relation to any Party, such Party’s affiliates and such Party' s and its affiliates' respective directors, officers, employees, agents or represenmtives, including, without\nlimitation, financial advisors, attorneys or accounmnts of such person.\n2. Disclosure of Confidential Information to the Shareholder.\n \n(a) In light of the Shareholders status as the Company’s largest shareholder and as an affiliate of the Company, the Company may, in its sole discretion, disclose certain Confidential Information to the Shareholder\nwhich is initially expected to include the Company's 2013 strategic plan and budget, a current smtus report on certain ongoing projects as of the date of this Agreement, and monthly financial information in the form provided to the\nCompany's non-employee directors together with a brief narrative on such financial information from the Company's Chief Executive Officer: Mded how—ever, that: (i) the Shareholder shall protect and maintain the confidentiality of\nany Confidential Information and shall not in any manner, directly or indirectly, disclose, in whole or in part, any Confidential Information to any person (including to the Shareholder s Representatives), (ii) the Shareholder shall not in\nany manner, directly or indirectly, use any Confidential Information for any purpose other than analyzing the Shareholder’ s investment in the Company, (iii) the Shareholder shall not, directly or indirectly, contact or have communications\nwith any person at the Company regarding any Confidential Information other than the Company's Chief Executive Officer (currently Bill Ulland) or the Company' s Chief Financial Officer (currently Jon Geriach), (iv) the Shareholder\nshall be subject to, and shall abide by, both the Company's General Policy on Securities Trading by Company Employees, Agents and Advisors and the Company's Supplemental Policy on Securities Trading by Officers, Directors and\nOtherAccess Personnel (including by refraining from trading in the Company’s Common Stock during all restricted trading periods described in such Supplemental Policy), copies of which have been provided to the Shareholder, and\n(v) the Shareholder shall take all steps necessary to comply with International Traffic in Arms Regulations with respect to the Confidential Information.\n(b) The Shareholder acknowledges and agrees that (i) if the Company or any of its Representatives discloses to the Shareholder any Confidential Information about the Company or its Common Stock, that such\ndisclosure is being made pursuant to this Agreement and in accordance with the confidentiality agreement exclusion in Rule 100(b)(2)(ii) of Regulation FD promulgated under the Exchange Act, (ii) the Shareholder is otherwise aware of\nthe requirements of Regulation FD, and (iii) the Shareholder is aware that the United States securities laws\nprohibit any person who has material, nonpublic information about a company from purchasing or selling securities of such company or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities\n3. Exceptions to the Shareholder’ s Confidentiality Obligations.\n \n(a) In the event that the Shareholder is required by law, regulation or other legal process or is requested (by oral questions, interrogatories, requests for information or documents, subpoena, court\norder, civil investigative demand or other process) to disclose any Confidential Information, which disclosure is not otherwise permitted hereunder, the Shareholder shall provide the Company with prompt written notice of any such\nrequest or requirement (if legally permitted) so that the Company may seek an appropriate protective order or waive compliance with the provisions of this Agreement. If, failing the entry of a protective order or the receipt of a waiver\nhereunder, the Shareholder is, after consultation with legal counsel for the Shareholder, required or compelled to disclose Confidential Information pursuant to such request, the Shareholder may disclose that portion of the Confidential\nInformation which such counsel has advised that the Shareholder is required or compelled to disclose as aforesaid. In any event, the Shareholder will not oppose action by, and will cooperate with, the Company, at the Company's\nexpense, in its effom to obtain an appropriate protective order or other assurance that confidential treatment will be accorded the Confidential Information. All references to the Shareholder in this paragraph shall be deemed to include the\nShareholder’ s Representatives.\n(b) If at any time, in the opinion of legal counsel for the Shareholder, the Shareholder is required by law, regulation or other legal process or stock exchange or stock market rules to disclose\nConfidential Information in a context that is not covered by the immediately preceding Section 3(a), the Shareholder may disclose that portion of the Confidential Information that such counsel has advised that the Shareholder is required\nto disclose, provided that the Shareholder gives the Company prompt written notice of such disclosure (if legally permitted).\n4. No Representations orWarranties. The Shareholder acknowledges and agrees that, except as expressly set forth in any definitive, written documentation, neither the Company nor any of its Representatives\nmakes any representation or warranty as to the accuracy or completeness of any Confidential Information and that neither the Company nor its Representatives shall have any liability to the Shareholder or any of its Representatives\nresulting from the use of the Confidential Information by the Shareholder.\n5. Egg imble Remedies. The Shareholder agrees that money damages would not be a sufficient remedy for any breach of this Agreement by it or any of its Representatives and that the Company shall be entitled to\nspecific performance and injunctive or other equimble relief as remedies for any such breach. Such remedies shall not be deemed to be the exclusive remedies but shall be in addition to all other remedies available at law orin equity to the\nCompany.\n6. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Minnesota without giving effect to its conflicts of laws principles or rules.\n7. Term- Survivabilim- Disclosure of Agreement. Notwithstanding anything to the contrary in this Agreement, the Company is not obligated to furnish the Shareholder with any Confidential Information and the\nCompany may terminate the Shareholder’ s access to any Confidential Information at any time in its sole discretion. This Agreement may be terminated by either Party for any or no reason upon written notice to the other Party and shall\nterminate immediately upon the breach of this Agreement by either Party,- Muled, how—ever, that the Shareholder’ s confidentiality obligations under this Agreement shall remain effective and survive the termination of this Agreement\nwith respect to any Confidential Information furnished by the Company during the term of this Agreement. This Agreement may be disclosed by either Party in a filing with the Securities and Exchange Commission if required by\napplicable law or regulation.\n8. Miscellaneous. This Agreement sets forth the entire agreement of the Parties with respect to the subject matter hereof. This Agreement may not be assigned, in whole or in part, by either Party without the prior\nwritten consent of the other Party. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their successors and permitted assigns. This Agreement is solely for the benefit of the Parties and may not be\nenforced by any third party. If any of the provisions of this Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be affected thereby. No failure or delay in exercising any other right,\npower or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement\nmay only be amended by the mutual written agreement of the Parties.\n[signature page follows]\nIN WITNESS WHEREOE, the undersigned have executed this Agreement as of the date first set forth above.\nCOMPANY:\nIKONICS CORPORATION\n/5/ William C. Ulland\nSHAREHOLDER:\n/S/ Joseph R. NeIges\nWWW—\n[Signature page to Confidentiality Agreement]	EX-10.1 2 a13-7365 lex10d1.htm EX-10.1\nEXHIBIT 10.1\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this "Agreement") is entered into on this 11th day of March, 2013, between Ikonics Corporation, a Minnesota corporation (the "Company"), and Joseph R. Nerges, an individual resident\nof\nthe State of Pennsylvania (the "Shareholder")\nRECITALS\nWHEREAS, the common stock of the Company, par value $0.10 per share (the "Common Stock"), is the only authorized and issued voting security of the Company;\nWHEREAS, the Common Stock is traded in the Nasdaq Capital Market under the ticker symbol IKNX;\nWHEREAS, the Shareholder is the Company's s largest shareholder and is an "affiliate" as such term is defined under the Exchange Act;\nWHEREAS the Shareholder has requested that the Company disclose material nonpublic information regarding the Company and its Common Stock to the Shareholder; and\nWHEREAS, the Company is willing to disclose to the Shareholder certain material, nonpublic information regarding the Company or its Common Stock subject to and in accordance with the terms and conditions set forth\nin this Agreement\nAGREEMENT\nNOW, THEREFORE, in view of the foregoing, the Parties agree as follows:\n1.\nCertain Definitions As used herein:\n(a)\n"Confidential Information" means any information regarding the Company or its Common Stock, whether in written, electronic roral form, including data, reports, interpretations, forecasts,\nrecords, statements, documents and information of any kind conceming the Company or any of its subsidiaries which the Company or any of its Representatives provides to the Shareholder; provided however that "Confidential\nInformation" shall not include inforation that (i) has become available to the public other than as a result of a disclosure by the Shareholder or any of its Representatives, (ii) was available to the Shareholder or any of its Representatives\non a non-confidential basis prior to its disclosure to the Shareholder by the Company or any of its Representatives, (iii) has become available to the Shareholder or any of its Representatives on a non-confidential basis from a source other\nthan the Company or any of its Representatives, provided that such source is not bound by law or confidentiality agreement in respect of such information with the Company or such Representative or otherwise prohibited from\ntransmitting such information to the Shareholder or such Representative by a contractual legal or fiduciary obligation or (iv) has been independently developed or acquired by the Shareholder or any of its Representatives without\nviolating any of its obligations under this Agreement.\n(b)\nThe term "person" shall mean an individual, corporation, partnership, limited liability company, association, trust, govermental entity any other organization or entity or any group including any\nof the foregoing, and the terms "group" and "affiliate" shall have the meanings provided under the Exchange Act.\n(c)\n"Exchange Act" means the Securities Exchange Act of 1934.\n(d)\n"Parties" means the Company and the Shareholder and "Party" means either of them.\n(e)\n"Representative" means, in relation to any Party, such Party's affiliates and such Party's and its affiliates' respective directors, officers, employees, agents or representatives, including, without\nlimitation, financial advisors, attorneys or accountants of such person.\n2.\nDisclosure of Confidential Information to the Shareholder\n(a)\nIn light of the Shareholder's status as the Company's largest shareholder and as an affiliate of the Company, the Company may, in its sole discretion, disclose certain Confidential Information to the Shareholder\nwhich is initially expected to include the Company's 2013 strategic plan and budget, a current status report on certain ongoing projects as of the date of this Agreement, and monthly financial information in the form provided to the\nCompany's non-employee directors together with a brief narrative on such financial information from the Company's Chief Executive Officer; provided however that: (i) the Shareholder shall protect and maintain the confidentiality of\nany Confidential Information and shall not in any manner, directly or indirectly, disclose, in whole or in part, any Confidential Information to any person (including to the Shareholder' Representatives), (ii) the Shareholder shall not\nin\nany manner, directly or indirectly, use any Confidential Information for any purpose other than analyzing the Shareholder's investment in the Company, (iii) the Shareholder shall not, directly or indirectly, contact or have communications\nwith any person at the Company regarding any Confidential Information other than the Company's Chief Executive Officer (currently Bill Ulland) or the Company's Chief Financial Officer (currently Jon Gerlach), (iv) the Shareholder\nshall be subject to, and shall abide by, both the Company's General Policy on Securities Trading by Company Employees Agents and Advisors and the Company's Supplemental Policy on Securities Trading by Officers, Directors\nand\nOther Access Personnel (including by refraining from trading in the Company's Common Stock during all restricted trading periods described in such Supplemental Policy), copies of which have been provided to the Shareholder, and\n(v) the Shareholder shall take all steps necessary to comply with Intemational Traffic in Arms Regulations with respect to the Confidential Information.\n(b)\nThe Shareholder acknowledges and agrees that (i) if the Company or any of its Representatives discloses to the Shareholder any Confidential Information about the Company or its Common Stock, that such\ndisclosure is being made pursuant to this Agreement and in accordance with the confidentiality agreement exclusion in Rule 100(b)(2)(ii) of Regulation FD promulgated under the Exchange Act (ii) the Shareholder is otherwise aware of\nthe requirements of Regulation FD, and (iii) the Shareholder is aware that the United States securities laws\n2\nprohibit any person who has material nonpublic information about a company from purchasing or selling securities of such company or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n3.\nExceptions to the Shareholder's Confidentiality Obligations\n(a)\nIn the event that the Shareholder is required by law, regulation or other legal process or is requested (by oral questions, interrogatories, requests for information or documents, subpoena court\norder, civil investigative demand or other process) to disclose any Confidential Information which disclosure is not otherwise permitted hereunder, the Shareholder shall provide the Company with prompt written notice of any such\nrequest or requirement (if legally permitted) so that the Company may seek an appropriate protective order or waive compliance with the provisions of this Agreement. If, failing the entry of a protective order or the receipt of a waiver\nhereunder, the Shareholder is, after consultation with legal counsel for the Shareholder, required or compelled to disclose Confidential Information pursuant to such request, the Shareholder may disclose that portion of the Confidential\nInformation which such counsel has advised that the Shareholder is required or compelled to disclose as aforesaid. In any event the Shareholder will not oppose action by, and will cooperate with the Company, at the Company's\nexpense, in its efforts to obtain an appropriate protective order or other assurance that confidential treatment will be accorded the Confidential Information. All references to the Shareholder in this paragraph shall be deemed to include the\nShareholder's Representatives.\n(b)\nIf at any time, in the opinion of legal counsel for the Shareholder, the Shareholder is required by law regulation or other legal process or stock exchange or stock market rules to disclose\nConfidential Information in a context that is not covered by the immediately preceding Section 3(a) the Shareholder may disclose that portion of the Confidential Information that such counsel has advised that the Shareholder is required\nto\ndisclose, provided that the Shareholder gives the Company prompt written notice of such disclosure (if legally permitted).\n4.\nNo Representations or Warranties. The Shareholder acknowledges and agrees that, except as expressly set forth in any definitive, written documentation, neither the Company nor any of its Representatives\nmakes any representation or warranty as to the accuracy or completeness of any Confidential Information and that neither the Company nor its Representatives shall have any liability to the Shareholder or any of its Representatives\nresulting from the use of the Confidential Information by the Shareholder.\n5.\nEquitable Remedies The Shareholder agrees that money damages would not be a sufficient remedy for any breach of this Agreement by it or any of its Representatives and that the Company shall be entitled to\nspecific performance and injunctive or other equitable relief as remedies for any such breach. Such remedies shall not be deemed to be the exclusive remedies but shall be in addition to all other remedies available at law or in equity to the\nCompany.\n3\n6.\nGoverning Law This A greement shall be govemed and construed in accordance with the laws of the State of Minnesota without giving effect to its conflicts of laws principles or rules\n7.\nTerm; Survivability; Disclosure of Agreement. Notwithstanding anything to the contrary in this A greement, the Company is not obligated to furnish the Shareholder with any Confidential Information and the\nCompany may terminate the Shareholder's access to any Confidential Information at any time in its sole discretion. This Agreement may be terminated by either Party for any or no reason upon written notice to the other Party and shall\nterminate immediately upon the breach of this Agreement by either Party provided, however, that the Shareholder's confidentiality obligations under this Agreement shall remain effective and survive the termination of this Agreement\nwith\nrespect to any Confidential Information furnished by the Company during the term of this Agreement This Agreement may be disclosed by either Party in a filing with the Securities and Exchange Commission if required by\napplicable law or regulation.\n8.\nMiscellaneous. This Agreement sets forth the entire agreement of the Parties with respect to the subject matter hereof. This Agreement may not be assigned in whole or in part, by either Party without the prior\nwritten consent of the other Party. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their successors and permitted assigns. This Agreement is solely for the benefit of the Parties and may not be\nenforced by any third party. If any of the provisions of this Agreement is not enforceable in whole or in part, the remaining provisions of this greement shall not be affected thereby. No failure or delay in exercising any other right\npower or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement\nmay only be amended by the mutual written agreement of the Parties\n[signature page follows\n4\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first set forth above.\nCOMPANY:\nIKONICS CORPORATION\n/s/ William C. Ulland\nBy:\nBIII UIand\nTitle:\nCEU\nSHAREHOLDER:\n/s/ Joseph R. Nerges\nJosepn R. Nerges\n[Signature page to Confidentiality Agreement]	EX-10 .1 2 a13-7365_1ex10d1.htm EX-10.1\nEXHIBIT 10.1\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”), is entered into on this 11th day of March, 2013, between Ikonics Corporation, a Minnesota corporation (the “Company”), and Joseph R. Nerges, an individual resident of\nthe State of Pennsylvania (the “Shareholder”).\nRECITALS\nWHEREAS, the common stock of the Company, par value $0.10 per share (the “Common Stock”), is the only authorized and issued voting security of the Company;\nWHEREAS, the Common Stock is traded in the Nasdaq Capital Market under the ticker symbol IKNX;\nWHEREAS, the Shareholder is the Company’s largest shareholder and is an “affiliate” as such term is defined under the Exchange Act;\nWHEREAS, the Shareholder has requested that the Company disclose material, nonpublic information regarding the Company and its Common Stock to the Shareholder; and\nWHEREAS, the Company is willing to disclose to the Shareholder certain material, nonpublic information regarding the Company or its Common Stock subject to and in accordance with the terms and conditions set forth\nin this Agreement.\nAGREEMENT\nNOW, THEREFORE, in view of the foregoing, the Parties agree as follows:\n1.\nCertain Definitions. As used herein:\n(a)\n“ Confidential Information” means any information regarding the Company or its Common Stock, whether in written, electronic or oral form, including data, reports, interpretations, forecasts,\nrecords, statements, documents and information of any kind concerning the Company or any of its subsidiaries which the Company or any of its Representatives provides to the Shareholder; provided, however, that “Confidential\nInformation” shall not include information that (i) has become available to the public other than as a result of a disclosure by the Shareholder or any of its Representatives, (ii) was available to the Shareholder or any of its Representatives\non a non-confidential basis prior to its disclosure to the Shareholder by the Company or any of its Representatives, (iii) has become available to the Shareholder or any of its Representatives on a non-confidential basis from a source other\nthan the Company or any of its Representatives, provided that such source is not bound by law or a confidentiality agreement in respect of such information with the Company or such Representative or otherwise prohibited from\ntransmitting such information to the Shareholder or such Representative by a contractual, legal or fiduciary obligation, or (iv) has been independently developed or acquired by the Shareholder or any of its Representatives without\nviolating any of its obligations under this Agreement.\n(b)\nThe term “person” shall mean an individual, corporation, partnership, limited liability company, association, trust, governmental entity, any other organization or entity or any group including any\nof the foregoing, and the terms “group” and “affiliate” shall have the meanings provided under the Exchange Act.\n(c)\n“ Exchange Act” means the Securities Exchange Act of 1934.\n(d)\n“Parties” means the Company and the Shareholder and “Party” means either of them.\n(e)\n“ Representative” means, in relation to any Party, such Party’s affiliates and such Party’s and its affiliates’ respective directors, officers, employees, agents or representatives, including, without\nlimitation, financial advisors, attorneys or accountants of such person.\n2.\nDisclosure of Confidential Information to the Shareholder.\n(a)\nIn light of the Shareholder’s status as the Company’s largest shareholder and as an affiliate of the Company, the Company may, in its sole discretion, disclose certain Confidential Information to the Shareholder\nwhich is initially expected to include the Company’s 2013 strategic plan and budget, a current status report on certain ongoing projects as of the date of this Agreement, and monthly financial information in the form provided to the\nCompany’s non-employee directors together with a brief narrative on such financial information from the Company’s Chief Executive Officer; provided however, that: (i) the Shareholder shall protect and maintain the confidentiality of\nany Confidential Information and shall not in any manner, directly or indirectly, disclose, in whole or in part, any Confidential Information to any person (including to the Shareholder’s Representatives), (ii) the Shareholder shall not in\nany manner, directly or indirectly, use any Confidential Information for any purpose other than analyzing the Shareholder’s investment in the Company, (iii) the Shareholder shall not, directly or indirectly, contact or have communications\nwith any person at the Company regarding any Confidential Information other than the Company’s Chief Executive Officer (currently Bill Ulland) or the Company’s Chief Financial Officer (currently Jon Gerlach), (iv) the Shareholder\nshall be subject to, and shall abide by, both the Company’s General Policy on Securities Trading by Company Employees, Agents and Advisors and the Company’s Supplemental Policy on Securities Trading by Officers, Directors and\nOther Access Personnel (including by refraining from trading in the Company’s Common Stock during all restricted trading periods described in such Supplemental Policy), copies of which have been provided to the Shareholder, and\n(v) the Shareholder shall take all steps necessary to comply with International Traffic in Arms Regulations with respect to the Confidential Information.\n(b)\nThe Shareholder acknowledges and agrees that (i) if the Company or any of its Representatives discloses to the Shareholder any Confidential Information about the Company or its Common Stock, that such\ndisclosure is being made pursuant to this Agreement and in accordance with the confidentiality agreement exclusion in Rule 100(b)(2)(ii) of Regulation FD promulgated under the Exchange Act, (ii) the Shareholder is otherwise aware of\nthe requirements of Regulation FD, and (iii) the Shareholder is aware that the United States securities laws\n2\nprohibit any person who has material, nonpublic information about a company from purchasing or selling securities of such company or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n3.\nExceptions to the Shareholder’s Confidentiality Obligations.\n(a)\nIn the event that the Shareholder is required by law, regulation or other legal process or is requested (by oral questions, interrogatories, requests for information or documents, subpoena, court\norder, civil investigative demand or other process) to disclose any Confidential Information, which disclosure is not otherwise permitted hereunder, the Shareholder shall provide the Company with prompt written notice of any such\nrequest or requirement (if legally permitted) so that the Company may seek an appropriate protective order or waive compliance with the provisions of this Agreement. If, failing the entry of a protective order or the receipt of a waiver\nhereunder, the Shareholder is, after consultation with legal counsel for the Shareholder, required or compelled to disclose Confidential Information pursuant to such request, the Shareholder may disclose that portion of the Confidential\nInformation which such counsel has advised that the Shareholder is required or compelled to disclose as aforesaid. In any event, the Shareholder will not oppose action by, and will cooperate with, the Company, at the Company’s\nexpense, in its efforts to obtain an appropriate protective order or other assurance that confidential treatment will be accorded the Confidential Information. All references to the Shareholder in this paragraph shall be deemed to include the\nShareholder’s Representatives.\n(b)\nIf at any time, in the opinion of legal counsel for the Shareholder, the Shareholder is required by law, regulation or other legal process or stock exchange or stock market rules to disclose\nConfidential Information in a context that is not covered by the immediately preceding Section 3(a), the Shareholder may disclose that portion of the Confidential Information that such counsel has advised that the Shareholder is required\nto disclose, provided that the Shareholder gives the Company prompt written notice of such disclosure (if legally permitted).\n4.\nNo Representations or Warranties. The Shareholder acknowledges and agrees that, except as expressly set forth in any definitive, written documentation, neither the Company nor any of its Representatives\nmakes any representation or warranty as to the accuracy or completeness of any Confidential Information and that neither the Company nor its Representatives shall have any liability to the Shareholder or any of its Representatives\nresulting from the use of the Confidential Information by the Shareholder.\n5.\nEquitable Remedies. The Shareholder agrees that money damages would not be a sufficient remedy for any breach of this Agreement by it or any of its Representatives and that the Company shall be entitled to\nspecific performance and injunctive or other equitable relief as remedies for any such breach. Such remedies shall not be deemed to be the exclusive remedies but shall be in addition to all other remedies available at law or in equity to the\nCompany.\n3\n6.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws of the State of Minnesota without giving effect to its conflicts of laws principles or rules.\n7.\nTerm; Survivability; Disclosure of Agreement. Notwithstanding anything to the contrary in this Agreement, the Company is not obligated to furnish the Shareholder with any Confidential Information and the\nCompany may terminate the Shareholder’s access to any Confidential Information at any time in its sole discretion. This Agreement may be terminated by either Party for any or no reason upon written notice to the other Party and shall\nterminate immediately upon the breach of this Agreement by either Party; provided, however, that the Shareholder’s confidentiality obligations under this Agreement shall remain effective and survive the termination of this Agreement\nwith respect to any Confidential Information furnished by the Company during the term of this Agreement. This Agreement may be disclosed by either Party in a filing with the Securities and Exchange Commission if required by\napplicable law or regulation.\n8.\nMiscellaneous. This Agreement sets forth the entire agreement of the Parties with respect to the subject matter hereof. This Agreement may not be assigned, in whole or in part, by either Party without the prior\nwritten consent of the other Party. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their successors and permitted assigns. This Agreement is solely for the benefit of the Parties and may not be\nenforced by any third party. If any of the provisions of this Agreement is not enforceable in whole or in part, the remaining provisions of this Agreement shall not be affected thereby. No failure or delay in exercising any other right,\npower or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement\nmay only be amended by the mutual written agreement of the Parties.\n[signature page follows]\n4\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first set forth above.\nCOMPANY:\nIKONICS CORPORATION\n/s/ William C. Ulland\nBy:\nBill Ulland\nTitle:\nCEO\nSHAREHOLDER:\n/s/ Joseph R. Nerges\nJoseph R. Nerges\n[Signature page to Confidentiality Agreement]
+b9c6fcdb370e1b2763166d0bdb4b57da.pdf	effective_date jurisdiction party	Exhibit 10(u)\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION and CONFIDENTIALITY AGREEMENT (“Agreement”) is made and entered\ninto this 7th day of December, 2015, by and between Myers Industries, Inc., an Ohio Corporation (the\n“Company”), and R. David Banyard (the “Executive”).\nRECITALS:\nA.The Company is a diversified international manufacturer of polymer products for the industrial, agricultural,\nautomotive, commercial and consumer markets and distributor of tools, equipment and supplies for tire service\nand under vehicle repair.\nB.Executive is being employed by the Company as President and Chief Executive Officer.\nC.The Company has acquired and established valuable and competitively sensitive information through its\nbusiness, research, development and practices, which information is described more extensively herein, and is\ncollectively referred to as the “Confidential Information.” To protect the business interests of the Company and\nthe competitive advantage derived from the Confidential Information, it is necessary that such Confidential\nInformation be kept secret and confidential.\nD.The Executive, from and after the commencement of employment with the Company, will be engaged in\nactivities such that the Executive will have extensive access to and become familiar with, and may develop or\ncontribute to, some or all of the Company’s Confidential Information. In addition, Executive will have\nextensive contact with the customers of the Company and will develop relationships with such customers on\nbehalf of the Company. The Executive recognizes that the Confidential Information and the Company’s\ncustomer relationships are vital to the success of the Company and that extensive, irreparable harm would\nresult were such Confidential Information to be disclosed outside the Company or if Executive were to engage\nin activity which competes with the Company.\nNOW, THEREFORE, in view of the above and in consideration for the mutual covenants and promises set\nforth below, the parties agree as follows:\n1.Confidential Information: For purposes of this Agreement, Confidential Information includes, but is not\nlimited to, business plans and strategies, marketing plans and strategies, customer lists, customer purchasing\ninformation, customer contact information, product design and development information, methods of\noperation, technical services, non-public financial information, business development plans and strategies,\nsystem analyses, quality control programs and information, computer programs, software and hardware\nconfigurations, information regarding the terms of the Company’s relationships with suppliers, pricing\ninformation, processes and techniques, creations, innovations, and any other information which the Company\nmay reasonably treat or designate as confidential from time to time. Confidential Information, however, shall\nnot include any information or materials that is or becomes publicly available other than through Executive’s\nwrongful disclosure of such information or materials. The Company believes that all Confidential Information\nconstitutes trade secret information under applicable law. Executive shall,\nhowever, maintain the confidentiality of all Confidential Information whether or not ultimately determined to\nbe a trade secret.\n2.Confidentiality and Non-Competition:\nA. Covenants\n(a)Executive acknowledges that the Company would be irreparably injured and the good will of the Company\nwould be irreparably damaged if Executive were to breach the covenants set forth in this Paragraph\n2. Executive further acknowledges that the covenants set forth in this Paragraph 2 are reasonable in scope and\nduration and do not unreasonably restrict Executive’s association with other business entities, either as an\nexecutive or otherwise as set forth herein.\n(b)During Executive’s employment with the Company and any time thereafter, except as may be required by\nlaw, Executive shall not, directly or indirectly, disclose, disseminate, reveal, divulge, discuss, copy or\notherwise use or suffer to be used, any Confidential Information other than in the authorized scope of\nExecutive’s employment with the Company. Upon termination of employment, no matter what the reason for\nsuch termination, and at any other time upon the request of the Company, Executive shall immediately return\nto the Company any and all Confidential Information, and all other materials, property and information in\ntangible or electronic form concerning the business and affairs of the Company and/or its customers.\n(c)Executive agrees that during Executive’s employment and for a period of two (2) years following the\ntermination of such employment, no matter what the reason for such termination, Executive will not directly or\nindirectly, whether on Executive’s own behalf or on behalf of any other person or entity, do or suffer any of the\nfollowing\n(i)Own, manage, control, participate in the ownership, management or control of, be employed or engaged by\nor otherwise affiliated or associated as a consultant, independent contractor or otherwise with, any person or\nbusiness entity that competes with the Company in the United States or in any geographic area(s) outside the\nUnited States in which the Company does business (the “Restricted Territory”). Without limiting the\ngenerality and scope of the foregoing, any business entity or person providing products or services competitive\nwith those of the Company in the Restricted Territory from either inside or outside the Restricted Territory is\ndeemed to be competing within the Restricted Territory. For purposes of this Agreement, the phrase\n“competes with” means providing services and products which are the same as, similar to, reasonably\nsubstitutable for, or otherwise capable of displacing the services and products of the\nCompany. Notwithstanding the foregoing, Executive’s passive investment ownership of not more than one\npercent (1%) of the stock of any publicly or privately held corporation shall not be deemed a violation of this\nprovision.\n(ii)Solicit, provide, sell, attempt to provide or sell, or otherwise deliver or supply any products or services\nwhich compete with the products or services of the Company to any person or business entity which is or was\na customer or prospective customer of the Company at any time during the last thirty-six (36) months of\n2\nExecutive’s employment, nor shall Executive in any way assist any other person or entity in such activity. For\npurposes of this Agreement, (1) the phrase “products or services which compete with the products or services\nof the Company means products or services which are the same as, similar to, reasonably substitutable for, or\notherwise capable of displacing the products or services of the Company; and (2) the term “prospective\ncustomer” means any person or entity the Company solicited, called on or otherwise specifically identified as a\ntarget for the sale of its products or services.\n(iii)Solicit the services of any person who then currently is, or who at any time during the last twelve (12)\nmonths of Executive’s employment with the Company was, an employee of the Company, or otherwise\nencourage or induce any such person to discontinue his or her relationship with the Company. Executive will\nnot engage in any business relationship with any consultant, independent contractor, subcontractor, supplier or\nservice provider of the Company which interferes with the Company’s relationship with such consultant,\nindependent contractor, subcontractor, supplier or service provider, or in any way causes such consultant,\nindependent contractor, subcontractor, supplier or service provider to reduce, alter, modify or discontinue the\nbusiness it (they) do(es) with the Company or any of its affiliates.\n3.Inventions: Executive hereby expressly agrees that all research discoveries, inventions and innovations\n(whether or not reduced to practice or documented), improvements, developments, methods, designs, analyses,\ndrawings, reports and all similar or related information (whether patentable or unpatentable, and whether or not\nreduced to writing), Confidential Information and copyrightable works, and similar and related information (in\nwhatever form or medium), which (1) either (i) relate to the Company’s or its affiliates’ actual or anticipated\nbusiness, research and development or existing or future products or services or (ii) result from or are\nsuggested by any work performed by the Executive for the Company or its affiliates and (2) are conceived,\ndeveloped, made or contributed to in whole or in part by the Executive during his employment (“Work\nProduct”) shall be and remain the sole and exclusive property of the Company or such affiliate.\n(i)Work Made for Hire. The Executive acknowledges that, unless otherwise agreed in writing by the\nCompany, all Work Product eligible for any form of copyright, trademark or patent protection made or\ncontributed to in whole or in part by the Executive within the scope of Executive’s employment by the\ncompany during the period of Executive’s employment with the Company shall be deemed a “work made for\nhire” and shall be owned by the Company or its affiliates, as applicable.\n(ii)Assignment of Proprietary Rights. The Executive hereby assigns, transfers and conveys to the Company,\nand shall assign, transfer and convey to the Company, all right, title and interest in and to all inventions, ideas,\nimprovements, designs, processes, patent rights, copyrights, trademarks, service marks, trade names, trade\nsecrets, trade dress, data, discoveries and other proprietary assets and proprietary rights in and of the Work\nProduct (the “Proprietary Rights”) for the Company’s exclusive ownership and use, together with all rights to\nsue and recover for past and future infringement or misappropriation thereof provided that if an affiliate of the\nCompany is the owner thereof; such assignment, transfer and\n3\nconveyance shall be made to such affiliate, which shall enjoy exclusive ownership and use, together with all\nrights to sue and recover for past and future infringement or misappropriation thereof.\n(iii)Further Instruments. At the request of the Company (or its affiliates, as the case may be), at all times\nduring Executive’s employment with the Company and thereafter, the Executive will promptly and fully assist\nthe Company (or its affiliates, as the case may be) in effecting the purpose of the foregoing assignment,\nincluding but not limited to the further acts of executing any and all documents necessary to secure for the\nCompany (or its affiliates, as the case may be) such Proprietary Rights and other rights to all Work Product\nand all confidential information related thereto, providing cooperation and giving testimony.\n(iv)Inapplicability of Paragraph 3 In Certain Circumstances. The Company expressly acknowledges and agrees\nthat, and the Executive is hereby advised that, this Paragraph 3 does not apply to any invention for which no\nequipment, supplies, facilities, trade secret information or Confidential Information of the Company or its\naffiliates was used and which was developed entirely on the Executive’s own time, unless (i) the invention\nrelates to the business of the Company or its affiliates, or to the Company’s or its affiliates’ actual or\ndemonstrably anticipated research or development or (ii) the invention results from or is suggested by any\nwork performed or observed by the Executive for the Company or any of its affiliates.\n4.Remedies: Executive acknowledges that the restrictions contained in Paragraphs 2 and 3 of this Agreement\nare reasonable in light of Executive’s position with the Company and are necessary to protect the Company\nfrom unfair competitive harm. Executive further acknowledges that any breach of this Agreement will result in\nimmediate irreparable harm to the Company and that the Company shall be entitled to immediate injunctive\nrelief upon any such breach, in addition to all other legal and equitable remedies the Company may have. This\nAgreement is to be construed as separate and independent from any other obligations and any claim by\nExecutive asserted against the Company and shall not constitute a defense to the enforcement of this\nAgreement. In the event any court determines that the restrictions set forth herein are unreasonable or\nunenforceable for any reason, the court will enforce such restrictions to the fullest extent permitted by law.\n5.Position of Employment: Executive expressly acknowledges that the obligations contained in Paragraphs 2\nand 3 of this Agreement shall remain in full force and effect during Executive’s employment in any position\nwith the Company, with respect to any Confidential Information of the Company.\n6.Validity: In the event any provision of this Agreement, or portion thereof, is held by a court of competent\njurisdiction to be unreasonable, arbitrary, or against public policy, then such provision, or portion thereof, shall\nbe enforced against the Executive to the extent the court deems to be reasonable or in accordance with public\npolicy. In the event any provision of this Agreement shall for any reason be wholly invalid, or unenforceable in\nany respect, such invalidity shall not affect the validity of any remaining portion which shall remain in full\nforce and effect as if the invalid portion was never part of this Agreement.\n4\n7.Miscellaneous: Executive acknowledges that the Executive has carefully read this entire Agreement and\nfully agrees with and understands all of the provisions the hereof. This Agreement supersedes all prior\nagreements between the Company and the Executive regarding the subject matter of this Agreement and\nconstitutes the entire agreement between the parties with respect to such subject matter. The Executive further\nagrees that in executing this Agreement, the Executive has not relied on any written or oral representations,\npromises, conditions, or understandings of the Company, express or implied, except as set forth herein. This\nAgreement may not be amended or modified other than in writing signed by the parties. This Agreement and\nany disputes arising thereunder shall be governed by the laws of the State of Ohio without regard to any State’s\nchoice of law, rules or principles. Executive and the Company expressly agree that any legal action arising out\nof or related to this Agreement will be brought exclusively in the state or federal courts located in Summit\nCounty, Ohio, and each party expressly consents to the jurisdiction of such courts and waives any and all\nobjections to the jurisdiction or venue thereof. This Agreement may be assigned to any successor-in-interest to\nthe business of the Company without the consent of Executive, but may not be assigned by Executive to any\nthird party. This Agreement is not a contract of employment for any definite period and Executive\nacknowledges that Executive’s employment with the Company is terminable at-will.\nIN WITNESS WHEREOF, the parties have hereunto executed this Agreement as of the date first set forth\nabove.\nMyers Industries, Inc.\nDate: 12/2/15\nBy:\n/s/ Sarah R. Coffin\nPrint Name:\nSarah R. Coffin, Chairman,\nCompensation Committee\nExecutive\nDate: 12/2/15\nSignature:\n/s/ R. David Banyard\nPrint Name:\nR. David Banyard\n5	Exhibit 10(u)\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION and CONFIDENTIALITY AGREEMENT (”Agreement”) is made and entered\ninto this @ day of December, 2015, by and between Myers Industries, Inc., an Ohio Corporation (the\n”Company”), and R. David Banyard (the ”Executive”).\nRECITALS:\nA .The Company is a diversified international manufacturer of polymer products for the industrial, agricultural,\nautomotive, commercial and consumer markets and distributor of tools, equipment and supplies for tire service\nand under vehicle repair.\nB.Executive is being employed by the Company as President and Chief Executive Officer.\nC.The Company has acquired and established valuable and competitively sensitive information through its\nbusiness, research, development and practices, which information is described more extensively herein, and is\ncollectively referred to as the ”Confidential Information.” To protect the business interests of the Company and\nthe competitive advantage derived from the Confidential Information, it is necessary that such Confidential\nInformation be kept secret and confidential.\nD.The Executive, from and after the commencement of employment with the Company, will be engaged in\nactivities such that the Executive will have extensive access to and become familiar with, and may develop or\ncontribute to, some or all of the Company’s Confidential Information. In addition, Executive will have\nextensive contact with the customers of the Company and will develop relationships with such customers on\nbehalf of the Company. The Executive recognizes that the Confidential Information and the Company’s\ncustomer relationships are vital to the success of the Company and that extensive, irreparable harm would\nresult were such Confidential Information to be disclosed outside the Company or if Executive were to engage\nin activity which competes with the Company.\nNOW, THEREFORE, in view of the above and in consideration for the mutual covenants and promises set\nforth below, the parties agree as follows:\n1.Confidential Information: For purposes of this Agreement, Confidential Information includes, but is not\nlimited to, business plans and strategies, marketing plans and strategies, customer lists, customer purchasing\ninformation, customer contact information, product design and development information, methods of\noperation, technical services, non-public financial information, business development plans and strategies,\nsystem analyses, quality control programs and information, computer programs, software and hardware\nconfigurations, information regarding the terms of the Company’s relationships with suppliers, pricing\ninformation, processes and techniques, creations, innovations, and any other information which the Company\nmay reasonably treat or designate as confidential from time to time. Confidential Information, however, shall\nnot include any information or materials that is or becomes publicly available other than through Executive’s\nwrongful disclosure of such information or materials. The Company believes that all Confidential Information\nconstitutes trade secret infomation under applicable law. Executive shall,\nhowever, maintain the confidentiality of all Confidential Information whether or not ultimately determined to\nbe a trade secret.\n2.Confidentialit_:y and Non-Competition:\nA. Covenants\n(a)Executive acknowledges that the Company would be irreparably injured and the good will of the Company\nwould be irreparably damaged if Executive were to breach the covenants set forth in this Paragraph\n2. Executive further acknowledges that the covenants set forth in this Paragraph 2 are reasonable in scope and\nduration and do not unreasonably restrict Executive’s association with other business entities, either as an\nexecutive or otherwise as set forth herein.\n(b)During Executive’s employment with the Company and any time thereafter, except as may be required by\nlaw, Executive shall not, directly or indirectly, disclose, disseminate, reveal, divulge, discuss, copy or\notherwise use or suffer to be used, any Confidential Information other than in the authorized scope of\nExecutive’s employment with the Company. Upon termination of employment, no matter what the reason for\nsuch termination, and at any other time upon the request of the Company, Executive shall immediately return\nto the Company any and all Confidential Information, and all other materials, property and information in\ntangible or electronic form concerning the business and affairs of the Company and/or its customers.\n(c)Executive agrees that during Executive’s employment and for a period of two (2) years following the\ntermination of such employment, no matter what the reason for such termination, Executive will not directly or\nindirectly, whether on Executive’ s own behalf or on behalf of any other person or entity, do or suffer any of the\nfollowing\n(i)Own, manage, control, participate in the ownership, management or control of, be employed or engaged by\nor otherwise affiliated or associated as a consultant, independent contractor or otherwise with, any person or\nbusiness entity that competes with the Company in the United States or in any geographic area(s) outside the\nUnited States in which the Company does business (the ”Restricted Territory”). Without limiting the\ngenerality and scope of the foregoing, any business entity or person providing products or services competitive\nwith those of the Company in the Restricted Territory from either inside or outside the Restricted Territory is\ndeemed to be competing within the Restricted Territory. For purposes of this Agreement, the phrase\n”competes with” means providing services and products which are the same as, similar to, reasonably\nsubstitutable for, or otherwise capable of displacing the services and products of the\nCompany. Notwithstanding the foregoing, Executive’s passive investment ownership of not more than one\npercent (1%) of the stock of any publicly or privately held corporation shall not be deemed a violation of this\nprov1s10n.\n(ii)Solicit, provide, sell, attempt to provide or sell, or otherwise deliver or supply any products or services\nwhich compete with the products or services of the Company to any person or business entity which is or was\na customer or prospective customer of the Company at any time during the last thirty-six (36) months of\n2\nExecutive’s employment, nor shall Executive in any way assist any other person or entity in such activity. For\npurposes of this Agreement, (1) the phrase ”products or services which compete with the products or services\nof the Company means products or services which are the same as, similar to, reasonably substitutable for, or\notherwise capable of displacing the products or services of the Company; and (2) the term ”prospective\ncustomer” means any person or entity the Company solicited, called on or otherwise specifically identified as a\ntarget for the sale of its products or services.\n(iii)Solicit the services of any person who then currently is, or who at any time during the last twelve (12)\nmonths of Executive’s employment with the Company was, an employee of the Company, or otherwise\nencourage or induce any such person to discontinue his or her relationship with the Company. Executive will\nnot engage in any business relationship with any consultant, independent contractor, subcontractor, supplier or\nservice provider of the Company which interferes with the Company’s relationship with such consultant,\nindependent contractor, subcontractor, supplier or service provider, or in any way causes such consultant,\nindependent contractor, subcontractor, supplier or service provider to reduce, alter, modify or discontinue the\nbusiness it (they) do(es) with the Company or any of its affiliates.\n3.Inventions: Executive hereby expressly agrees that all research discoveries, inventions and innovations\n(whether or not reduced to practice or documented), improvements, developments, methods, designs, analyses,\ndrawings, reports and all similar or related information (whether patentable or unpatentable, and whether or not\nreduced to writing), Confidential Information and copyrightable works, and similar and related information (in\nwhatever form or medium), which (1) either (i) relate to the Company’s or its affiliates’ actual or anticipated\nbusiness, research and development or existing or future products or services or (ii) result from or are\nsuggested by any work performed by the Executive for the Company or its affiliates and (2) are conceived,\ndeveloped, made or contributed to in whole or in part by the Executive during his employment (”Work\nProduct”) shall be and remain the sole and exclusive property of the Company or such affiliate.\n(i)Work Made for Hire. The Executive acknowledges that, unless otherwise agreed in writing by the\nCompany, all Work Product eligible for any form of copyright, trademark or patent protection made or\ncontributed to in whole or in part by the Executive within the scope of Executive’s employment by the\ncompany during the period of Executive’s employment with the Company shall be deemed a ”work made for\nhire” and shall be owned by the Company or its affiliates, as applicable.\n(ii)A ssignment of Propriem Rights. The Executive hereby assigns, transfers and conveys to the Company,\nand shall assign, transfer and convey to the Company, all right, title and interest in and to all inventions, ideas,\nimprovements, designs, processes, patent rights, copyrights, trademarks, service marks, trade names, trade\nsecrets, trade dress, data, discoveries and other proprietary assets and proprietary rights in and of the Work\nProduct (the ”Proprietary Rights”) for the Company’s exclusive ownership and use, together with all rights to\nsue and recover for past and future infringement or misappropriation thereof provided that if an affiliate of the\nCompany is the owner thereof ; such assignment, transfer and\n3\nconveyance shall be made to such affiliate, which shall enjoy exclusive ownership and use, together with all\nrights to sue and recover for past and future infringement or misappropriation thereof.\n(iii)Eurther Instruments. At the request of the Company (or its affiliates, as the case may be), at all times\nduring Executive’s employment with the Company and thereafter, the Executive will promptly and fully assist\nthe Company (or its affiliates, as the case may be) in effecting the purpose of the foregoing assignment,\nincluding but not limited to the further acts of executing any and all documents necessary to secure for the\nCompany (or its affiliates, as the case may be) such Proprietary Rights and other rights to all Work Product\nand all confidential information related thereto, providing cooperation and giving testimony.\n(iv)Inapplicabilit_:y of Paragraph 3 In Certain Circumstances. The Company expressly acknowledges and agrees\nthat, and the Executive is hereby advised that, this Paragraph 3 does not apply to any invention for which no\nequipment, supplies, facilities, trade secret information or Confidential Information of the Company or its\naffiliates was used and which was developed entirely on the Executive’s own time, unless (i) the invention\nrelates to the business of the Company or its affiliates, or to the Company’s or its affiliates’ actual or\ndemonstrably anticipated research or development or (ii) the invention results from or is suggested by any\nwork performed or observed by the Executive for the Company or any of its affiliates.\n4.Remedies: Executive acknowledges that the restrictions contained in Paragraphs 2 and 3 of this Agreement\nare reasonable in light of Executive’s position with the Company and are necessary to protect the Company\nfrom unfair competitive harm. Executive further acknowledges that any breach of this Agreement will result in\nimmediate irreparable harm to the Company and that the Company shall be entitled to immediate injunctive\nrelief upon any such breach, in addition to all other legal and equitable remedies the Company may have. This\nAgreement is to be construed as separate and independent from any other obligations and any claim by\nExecutive asserted against the Company and shall not constitute a defense to the enforcement of this\nAgreement. In the event any court determines that the restrictions set forth herein are unreasonable or\nunenforceable for any reason, the court will enforce such restrictions to the fullest extent permitted by law.\n5.Position of Employment: Executive expressly acknowledges that the obligations contained in Paragraphs 2\nand 3 of this Agreement shall remain in full force and effect during Executive’s employment in any position\nwith the Company, with respect to any Confidential Information of the Company.\n6.V alidity: In the event any provision of this Agreement, or portion thereof, is held by a court of competent\njurisdiction to be unreasonable, arbitrary, or against public policy, then such provision, or portion thereof, shall\nbe enforced against the Executive to the extent the court deems to be reasonable or in accordance with public\npolicy. In the event any provision of this Agreement shall for any reason be wholly invalid, or unenforceable in\nany respect, such invalidity shall not affect the validity of any remaining portion which shall remain in full\nforce and effect as if the invalid portion was never part of this Agreement.\n4\n7.Miscellaneous: Executive acknowledges that the Executive has carefully read this entire Agreement and\nfully agrees with and understands all of the provisions the hereof. This Agreement supersedes all prior\nagreements between the Company and the Executive regarding the subject matter of this Agreement and\nconstitutes the entire agreement between the parties with respect to such subject matter. The Executive further\nagrees that in executing this Agreement, the Executive has not relied on any written or oral representations,\npromises, conditions, or understandings of the Company, express or implied, except as set forth herein. This\nAgreement may not be amended or modified other than in writing signed by the parties. This Agreement and\nany disputes arising thereunder shall be governed by the laws of the State of Ohio without regard to any State’s\nchoice of law, rules or principles. Executive and the Company expressly agree that any legal action arising out\nof or related to this Agreement will be brought exclusively in the state or federal courts located in Summit\nCounty, Ohio, and each party expressly consents to the jurisdiction of such courts and waives any and all\nobjections to the jurisdiction or venue thereof. This Agreement may be assigned to any successor-in-interest to\nthe business of the Company without the consent of Executive, but may not be assigned by Executive to any\nthird party. This Agreement is not a contract of employment for any definite period and Executive\nacknowledges that Executive’ s employment with the Company is terminable at- will.\nIN WITNESS WHEREOE, the parties have hereunto executed this Agreement as of the date first set forth\nabove.\nMyers Industries, Inc.\nDate: M By: /s/ Sarah R. Coffin\nPrint Name: Sarah R. Coffin, Chairman,\nCompensation Commfifl\nExecutive\nDate: % Signature: /s/ R. David Banyard\nPrintName: R. David Banyard	Exhibit 10(u)\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION and CONFIDENTIALITY AGREEMENT 'Agreement") is made and entered\ninto this 7th day of December, 2015, by and between Myers Industries, Inc., an Ohio Corporation (the\n"Company"), and R. David Banyard (the "Executive").\nRECITALS:\nA.The Company is a diversified international manufacturer of polymer products for the industrial, agricultural,\nautomotive, commercial and consumer markets and distributor of tools, equipment and supplies for tire service\nand under vehicle repair.\nB.Executive is being employed by the Company as President and Chief Executive Officer.\nC.The Company has acquired and established valuable and competitively sensitive information through its\nbusiness, research, development and practices, which information is described more extensively herein, and is\ncollectively referred to as the "Confidential Information." To protect the business interests of the Company and\nthe competitive advantage derived from the Confidential Information, it is necessary that such Confidential\nInformation be kept secret and confidential.\nD.The Executive, from and after the commencement of employment with the Company, will be engaged in\nactivities such that the Executive will have extensive access to and become familiar with, and may develop or\ncontribute to, some or all of the Company's Confidential Information. In addition, Executive will have\nextensive contact with the customers of the Company and will develop relationships with such customers on\nbehalf of the Company. The Executive recognizes that the Confidential Information and the Company's\ncustomer relationships are vital to the success of the Company and that extensive, irreparable harm would\nresult were such Confidential Information to be disclosed outside the Company or if Executive were to engage\nin activity which competes with the Company.\nNOW, THEREFORE, in view of the above and in consideration for the mutual covenants and promises set\nforth below, the parties agree as follows:\n1.Confidential Information: For purposes of this A greement, Confidential Information includes, but is not\nlimited to, business plans and strategies, marketing plans and strategies, customer lists, customer purchasing\ninformation, customer contact information, product design and development information, methods of\noperation, technical services, non-public financial information, business development plans and strategies,\nsystem analyses, quality control programs and information, computer programs, software and hardware\nconfigurations, information regarding the terms of the Company's relationships with suppliers, pricing\ninformation, processes and techniques, creations, innovations, and any other information which the Company\nmay reasonably treat or designate as confidential from time to time. Confidential Information, however, shall\nnot include any information or materials that is or becomes publicly available other than through Executive's\nwrongful disclosure of such information or materials. The Company believes that all Confidential Information\nconstitutes trade secret information under applicable law. Executive shall\nhowever, maintain the confidentiality of all Confidential Information whether or not ultimately determined to\nbe a trade secret.\n2.Confidentiality and Non-Competition\nA.\nCovenants\na)Executive acknowledges that the Company would be irreparably injured and the good will of the Company\nwould be irreparably damaged if Executive were to breach the covenants set forth in this Paragraph\n2. Executive further acknowledges that the covenants set forth in this Paragraph 2 are reasonable in scope and\nduration and do not unreasonably restrict Executive's association with other business entities, either as an\nexecutive or otherwise as set forth herein.\n(b)During Executive's employment with the Company and any time thereafter, except as may be required by\nlaw, Executive shall not, directly or indirectly, disclose, disseminate, reveal, divulge, discuss, copy or\notherwise use or suffer to be used, any Confidential Information other than in the authorized scope of\nExecutive's employment with the Company. Upon termination of employment, no matter what the reason for\nsuch termination, and at any other time upon the request of the Company, Executive shall immediately return\nto the Company any and all Confidential Information, and all other materials, property and information in\ntangible or electronic form concerning the business and affairs of the Company and/or its customers.\n)Executive agrees that during Executive's employment and for a period of two (2) years following the\ntermination of such employment no matter what the reason for such termination, Executive will not directly or\nindirectly, whether on Executive's own behalf or on behalf of any other person or entity, do or suffer any of the\nfollowing\n(i)Own, manage, control, participate in the ownership, management or control of, be employed or engaged by\nor otherwise affiliated or associated as a consultant, independent contractor or otherwise with, any person or\nbusiness entity that competes with the Company in the United States or in any geographic area(s) outside the\nUnited States in which the Company does business (the "Restricted Territory"). Without limiting the\ngenerality and scope of the foregoing, any business entity or person providing products or services competitive\nwith those of the Company in the Restricted Territory from either inside or outside the Restricted Territory is\ndeemed to be competing within the Restricted Territory. For purposes of this Agreement, the phrase\n"competes with" means providing services and products which are the same as, similar to, reasonably\nsubstitutable for, or otherwise capable of displacing the services and products of the\nCompany. Notwithstanding the foregoing, Executive's passive investment ownership of not more than one\npercent (1%) of the stock of any publicly or privately held corporation shall not be deemed a violation of this\nprovision.\n(ii)Solicit, provide, sell, attempt to provide or sell, or otherwise deliver or supply any products or services\nwhich compete with the products or services of the Company to any person or business entity which is or was\na customer or prospective customer of the Company at any time during the last thirty-six (36) months of\n2\nExecutive's employment, nor shall Executive in any way assist any other person or entity in such activity. For\npurposes of this A greement, (1) the phrase "products or services which compete with the products or services\nof the Company means products or services which are the same as, similar to, reasonably substitutable for,\nor\notherwise capable of displacing the products or services of the Company; and (2) the term "prospective\ncustomer" means any person or entity the Company solicited, called on or otherwise specifically identified as a\ntarget for the sale of its products or services.\niii)Solicit the services of any person who then currently is, or who at any time during the last twelve (12)\nmonths of Executive's employment with the Company was, an employee of the Company, or otherwise\nencourage or induce any such person to discontinue his or her relationship with the Company. Executive will\nnot engage in any business relationship with any consultant, independent contractor, subcontractor, supplier or\nservice provider of the Company which interferes with the Company's relationship with such consultant,\nindependent contractor, subcontractor, supplier or service provider, or in any way causes such consultant,\nindependent contractor, subcontractor, supplier or service provider to reduce, alter, modify or discontinue the\nbusiness it (they) do(es) with the Company or any of its affiliates.\n3.Inventions: Executive hereby expressly agrees that all research discoveries, inventions and innovations\n(whether or not reduced to practice or documented), improvements, developments, methods, designs, analyses,\ndrawings, reports and all similar or related information (whether patentable or unpatentable, and whether or not\nreduced to writing), Confidential Information and copyrightable works, and similar and related information (in\nwhatever form or medium), which (1) either (i) relate to the Company's or its affiliates' actual or anticipated\nbusiness, research and development or existing or future products or services or (ii) result from or are\nsuggested by any work performed by the Executive for the Company or its affiliates and (2) are conceived,\ndeveloped, made or contributed to in whole or in part by the Executive during his employment ("Work\nProduct") shall be and remain the sole and exclusive property of the Company or such affiliate.\n(i)Work Made for Hire. The Executive acknowledges that, unless otherwise agreed in writing by the\nCompany, all Work Product eligible for any form of copyright, trademark or patent protection made or\ncontributed to in whole or in part by the Executive within the scope of Executive's employment by the\ncompany during the period of Executive's employment with the Company shall be deemed a "work made for\nhire" and shall be owned by the Company or its affiliates, as applicable.\n)Assignment of Proprietary Rights. The Executive hereby assigns, transfers and conveys to the Company,\nand shall assign, transfer and convey to the Company, all right, title and interest in and to all inventions, ideas,\nimprovements, designs, processes, patent rights, copyrights, trademarks, service marks, trade names, trade\nsecrets, trade dress, data, discoveries and other proprietary assets and proprietary rights in and of the Work\nProduct (the "Proprietary Rights") for the Company's exclusive ownership and use, together with all rights to\nsue and recover for past and future infringement or misappropriation thereof provided that if an affiliate of the\nCompany is the owner thereof; such assignment, transfer and\n3\nconveyance shall be made to such affiliate, which shall enjoy exclusive ownership and use, together with all\nrights to sue and recover for past and future infringement or misappropriation thereof.\n(iii) Further Instruments. At the request of the Company (or its affiliates, as the case may be), at all times\nduring Executive's employment with the Company and thereafter, the Executive will promptly and fully assist\nthe Company (or its affiliates as the case may be) in effecting the purpose of the foregoing assignment,\nincluding but not limited to the further acts of executing any and all documents necessary to secure for the\nCompany (or its affiliates, as the case may be) such Proprietary Rights and other rights to all Work Product\nand all confidential information related thereto, providing cooperation and giving testimony.\n(iv)Inapplicability of Paragraph 3 In Certain Circumstances. The Company expressly acknowledges and agrees\nthat, and the Executive is hereby advised that, this Paragraph 3 does not apply to any invention for which no\nequipment, supplies, facilities, trade secret information or Confidential Information of the Company or its\naffiliates was used and which was developed entirely on the Executive's own time, unless (i) the invention\nrelates to the business of the Company or its affiliates, or to the Company's or its affiliates' actual or\ndemonstrably anticipated research or development or (ii) the invention results from or is suggested by any\nwork performed or observed by the Executive for the Company or any of its affiliates.\n4.Remedies: Executive acknowledges that the restrictions contained in Paragraphs 2 and 3 of this Agreement\nare reasonable in light of Executive's position with the Company and are necessary to protect the Company\nfrom unfair competitive harm. Executive further acknowledges that any breach of this A greement will result in\nimmediate irreparable harm to the Company and that the Company shall be entitled to immediate injunctive\nrelief upon any such breach, in addition to all other legal and equitable remedies the Company may have. This\nA greement is to be construed as separate and independent from any other obligations and any claim by\nExecutive asserted against the Company and shall not constitute a defense to the enforcement of this\nA\ngreement. In the event any court determines that the restrictions set forth herein are unreasonable or\nunenforceable for any reason, the court will enforce such restrictions to the fullest extent permitted by law.\n5.Position of Employment: Executive expressly acknowledges that the obligations contained in Paragraphs 2\nand 3 of this Agreement shall remain in full force and effect during Executive's employment in any position\nwith the Company, with respect to any Confidential Information of the Company.\n.Validity: In the event any provision of this Agreement, or portion thereof, is held by a court of competent\njurisdiction to be unreasonable, arbitrary, or against public policy, then such provision, or portion thereof, shall\nbe enforced against the Executive to the extent the court deems to be reasonable or in accordance with public\npolicy. In the event any provision of this A greement shall for any reason be wholly invalid, or unenforceable in\nany respect, such invalidity shall not affect the validity of any remaining portion which shall remain in full\nforce and effect as if the invalid portion was never part of this Agreement.\n4\n.Miscellaneous: Executive acknowledges that the Executive has carefully read this entire A greement and\nfully agrees with and understands all of the provisions the hereof. This A greement supersedes all prior\nagreements between the Company and the Executive regarding the subject matter of this A greement and\nconstitutes the entire agreement between the parties with respect to such subject matter. The Executive further\nagrees that in executing this A greement the Executive has not relied on any written or oral representations,\npromises, conditions, or understandings of the Company, express or implied, except as set forth herein. This\nA greement may not be amended or modified other than in writing signed by the parties. This greement and\nany disputes arising thereunder shall be governed by the laws of the State of Ohio without regard to any State's\nchoice of law, rules or principles. Executive and the Company expressly agree that any legal action arising out\nof or related to this Agreement will be brought exclusively in the state or federal courts located in Summit\nCounty, Ohio, and each party expressly consents to the jurisdiction of such courts and waives any and all\nobjections to the jurisdiction or venue thereof. This Agreement may be assigned to any successor-in-interest to\nthe business of the Company without the consent of Executive, but may not be assigned by Executive to any\nthird party. This Agreement is not a contract of employment for any definite period and Executive\nacknowledges that Executive's employment with the Company is terminable at-will.\nIN WITNESS WHEREOF, the parties have hereunto executed this Agreement as of the date first set forth\nabove.\nMyers Industries, Inc.\nDate: 12/2/15\nBy:\n/s/ Sarah R. Coffin\nPrint Name:\nSarah R. Coffin, Chairman,\nCompensation Committee\nExecutive\nDate: 12/2/15\nSignature:\n/S/R. David Banyard\nPrint Name:\nR. David Banyard\n5	Exhibit 10(u)\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION and CONFIDENTIALITY AGREEMENT (“Agreement”) is made and entered\ninto this 7th day of December, 2015, by and between Myers Industries, Inc., an Ohio Corporation (the\n“Company”), and R. David Banyard (the “Executive”).\nRECITALS:\nA.The Company is a diversified international manufacturer of polymer products for the industrial, agricultural,\nautomotive, commercial and consumer markets and distributor of tools, equipment and supplies for tire service\nand under vehicle repair.\nB.Executive is being employed by the Company as President and Chief Executive Officer.\nC.The Company has acquired and established valuable and competitively sensitive information through its\nbusiness, research, development and practices, which information is described more extensively herein, and is\ncollectively referred to as the “Confidential Information.” To protect the business interests of the Company and\nthe competitive advantage derived from the Confidential Information, it is necessary that such Confidential\nInformation be kept secret and confidential.\nD.The Executive, from and after the commencement of employment with the Company, will be engaged in\nactivities such that the Executive will have extensive access to and become familiar with, and may develop or\ncontribute to, some or all of the Company’s Confidential Information. In addition, Executive will have\nextensive contact with the customers of the Company and will develop relationships with such customers on\nbehalf of the Company. The Executive recognizes that the Confidential Information and the Company’s\ncustomer relationships are vital to the success of the Company and that extensive, irreparable harm would\nresult were such Confidential Information to be disclosed outside the Company or if Executive were to engage\nin activity which competes with the Company.\nNOW, THEREFORE, in view of the above and in consideration for the mutual covenants and promises set\nforth below, the parties agree as follows:\n1.Confidential Information: For purposes of this Agreement, Confidential Information includes, but is not\nlimited to, business plans and strategies, marketing plans and strategies, customer lists, customer purchasing\ninformation, customer contact information, product design and development information, methods of\noperation, technical services, non-public financial information, business development plans and strategies,\nsystem analyses, quality control programs and information, computer programs, software and hardware\nconfigurations, information regarding the terms of the Company’s relationships with suppliers, pricing\ninformation, processes and techniques, creations, innovations, and any other information which the Company\nmay reasonably treat or designate as confidential from time to time. Confidential Information, however, shall\nnot include any information or materials that is or becomes publicly available other than through Executive’s\nwrongful disclosure of such information or materials. The Company believes that all Confidential Information\nconstitutes trade secret information under applicable law. Executive shall,\nhowever, maintain the confidentiality of all Confidential Information whether or not ultimately determined to\nbe a trade secret.\n2.Confidentiality and Non-Competition:\nA. Covenants\n(a)Executive acknowledges that the Company would be irreparably injured and the good will of the Company\nwould be irreparably damaged if Executive were to breach the covenants set forth in this Paragraph\n2. Executive further acknowledges that the covenants set forth in this Paragraph 2 are reasonable in scope and\nduration and do not unreasonably restrict Executive’s association with other business entities, either as an\nexecutive or otherwise as set forth herein.\n(b)During Executive’s employment with the Company and any time thereafter, except as may be required by\nlaw, Executive shall not, directly or indirectly, disclose, disseminate, reveal, divulge, discuss, copy or\notherwise use or suffer to be used, any Confidential Information other than in the authorized scope of\nExecutive’s employment with the Company. Upon termination of employment, no matter what the reason for\nsuch termination, and at any other time upon the request of the Company, Executive shall immediately return\nto the Company any and all Confidential Information, and all other materials, property and information in\ntangible or electronic form concerning the business and affairs of the Company and/or its customers.\n(c)Executive agrees that during Executive’s employment and for a period of two (2) years following the\ntermination of such employment, no matter what the reason for such termination, Executive will not directly or\nindirectly, whether on Executive’s own behalf or on behalf of any other person or entity, do or suffer any of the\nfollowing\n(i)Own, manage, control, participate in the ownership, management or control of, be employed or engaged by\nor otherwise affiliated or associated as a consultant, independent contractor or otherwise with, any person or\nbusiness entity that competes with the Company in the United States or in any geographic area(s) outside the\nUnited States in which the Company does business (the “Restricted Territory”). Without limiting the\ngenerality and scope of the foregoing, any business entity or person providing products or services competitive\nwith those of the Company in the Restricted Territory from either inside or outside the Restricted Territory is\ndeemed to be competing within the Restricted Territory. For purposes of this Agreement, the phrase\n“competes with” means providing services and products which are the same as, similar to, reasonably\nsubstitutable for, or otherwise capable of displacing the services and products of the\nCompany. Notwithstanding the foregoing, Executive’s passive investment ownership of not more than one\npercent (1%) of the stock of any publicly or privately held corporation shall not be deemed a violation of this\nprovision.\n(ii)Solicit, provide, sell, attempt to provide or sell, or otherwise deliver or supply any products or services\nwhich compete with the products or services of the Company to any person or business entity which is or was\na customer or prospective customer of the Company at any time during the last thirty-six (36) months of\n2\nExecutive’s employment, nor shall Executive in any way assist any other person or entity in such activity. For\npurposes of this Agreement, (1) the phrase “products or services which compete with the products or services\nof the Company means products or services which are the same as, similar to, reasonably substitutable for, or\notherwise capable of displacing the products or services of the Company; and (2) the term “prospective\ncustomer” means any person or entity the Company solicited, called on or otherwise specifically identified as a\ntarget for the sale of its products or services.\n(iii)Solicit the services of any person who then currently is, or who at any time during the last twelve (12)\nmonths of Executive’s employment with the Company was, an employee of the Company, or otherwise\nencourage or induce any such person to discontinue his or her relationship with the Company. Executive will\nnot engage in any business relationship with any consultant, independent contractor, subcontractor, supplier or\nservice provider of the Company which interferes with the Company’s relationship with such consultant,\nindependent contractor, subcontractor, supplier or service provider, or in any way causes such consultant,\nindependent contractor, subcontractor, supplier or service provider to reduce, alter, modify or discontinue the\nbusiness it (they) do(es) with the Company or any of its affiliates.\n3.Inventions: Executive hereby expressly agrees that all research discoveries, inventions and innovations\n(whether or not reduced to practice or documented), improvements, developments, methods, designs, analyses,\ndrawings, reports and all similar or related information (whether patentable or unpatentable, and whether or not\nreduced to writing), Confidential Information and copyrightable works, and similar and related information (in\nwhatever form or medium), which (1) either (i) relate to the Company’s or its affiliates’ actual or anticipated\nbusiness, research and development or existing or future products or services or (ii) result from or are\nsuggested by any work performed by the Executive for the Company or its affiliates and (2) are conceived,\ndeveloped, made or contributed to in whole or in part by the Executive during his employment (“Work\nProduct”) shall be and remain the sole and exclusive property of the Company or such affiliate.\n(i)Work Made for Hire. The Executive acknowledges that, unless otherwise agreed in writing by the\nCompany, all Work Product eligible for any form of copyright, trademark or patent protection made or\ncontributed to in whole or in part by the Executive within the scope of Executive’s employment by the\ncompany during the period of Executive’s employment with the Company shall be deemed a “work made for\nhire” and shall be owned by the Company or its affiliates, as applicable.\n(ii)Assignment of Proprietary Rights. The Executive hereby assigns, transfers and conveys to the Company,\nand shall assign, transfer and convey to the Company, all right, title and interest in and to all inventions, ideas,\nimprovements, designs, processes, patent rights, copyrights, trademarks, service marks, trade names, trade\nsecrets, trade dress, data, discoveries and other proprietary assets and proprietary rights in and of the Work\nProduct (the “Proprietary Rights”) for the Company’s exclusive ownership and use, together with all rights to\nsue and recover for past and future infringement or misappropriation thereof provided that if an affiliate of the\nCompany is the owner thereof; such assignment, transfer and\n3\nconveyance shall be made to such affiliate, which shall enjoy exclusive ownership and use, together with all\nrights to sue and recover for past and future infringement or misappropriation thereof.\n(iii)Further Instruments. At the request of the Company (or its affiliates, as the case may be), at all times\nduring Executive’s employment with the Company and thereafter, the Executive will promptly and fully assist\nthe Company (or its affiliates, as the case may be) in effecting the purpose of the foregoing assignment,\nincluding but not limited to the further acts of executing any and all documents necessary to secure for the\nCompany (or its affiliates, as the case may be) such Proprietary Rights and other rights to all Work Product\nand all confidential information related thereto, providing cooperation and giving testimony.\n(iv)Inapplicability of Paragraph 3 In Certain Circumstances. The Company expressly acknowledges and agrees\nthat, and the Executive is hereby advised that, this Paragraph 3 does not apply to any invention for which no\nequipment, supplies, facilities, trade secret information or Confidential Information of the Company or its\naffiliates was used and which was developed entirely on the Executive’s own time, unless (i) the invention\nrelates to the business of the Company or its affiliates, or to the Company’s or its affiliates’ actual or\ndemonstrably anticipated research or development or (ii) the invention results from or is suggested by any\nwork performed or observed by the Executive for the Company or any of its affiliates.\n4.Remedies: Executive acknowledges that the restrictions contained in Paragraphs 2 and 3 of this Agreement\nare reasonable in light of Executive’s position with the Company and are necessary to protect the Company\nfrom unfair competitive harm. Executive further acknowledges that any breach of this Agreement will result in\nimmediate irreparable harm to the Company and that the Company shall be entitled to immediate injunctive\nrelief upon any such breach, in addition to all other legal and equitable remedies the Company may have. This\nAgreement is to be construed as separate and independent from any other obligations and any claim by\nExecutive asserted against the Company and shall not constitute a defense to the enforcement of this\nAgreement. In the event any court determines that the restrictions set forth herein are unreasonable or\nunenforceable for any reason, the court will enforce such restrictions to the fullest extent permitted by law.\n5.Position of Employment: Executive expressly acknowledges that the obligations contained in Paragraphs 2\nand 3 of this Agreement shall remain in full force and effect during Executive’s employment in any position\nwith the Company, with respect to any Confidential Information of the Company.\n6.Validity: In the event any provision of this Agreement, or portion thereof, is held by a court of competent\njurisdiction to be unreasonable, arbitrary, or against public policy, then such provision, or portion thereof, shall\nbe enforced against the Executive to the extent the court deems to be reasonable or in accordance with public\npolicy. In the event any provision of this Agreement shall for any reason be wholly invalid, or unenforceable in\nany respect, such invalidity shall not affect the validity of any remaining portion which shall remain in full\nforce and effect as if the invalid portion was never part of this Agreement.\n4\n7.Miscellaneous: Executive acknowledges that the Executive has carefully read this entire Agreement and\nfully agrees with and understands all of the provisions the hereof. This Agreement supersedes all prior\nagreements between the Company and the Executive regarding the subject matter of this Agreement and\nconstitutes the entire agreement between the parties with respect to such subject matter. The Executive further\nagrees that in executing this Agreement, the Executive has not relied on any written or oral representations,\npromises, conditions, or understandings of the Company, express or implied, except as set forth herein. This\nAgreement may not be amended or modified other than in writing signed by the parties. This Agreement and\nany disputes arising thereunder shall be governed by the laws of the State of Ohio without regard to any State’s\nchoice of law, rules or principles. Executive and the Company expressly agree that any legal action arising out\nof or related to this Agreement will be brought exclusively in the state or federal courts located in Summit\nCounty, Ohio, and each party expressly consents to the jurisdiction of such courts and waives any and all\nobjections to the jurisdiction or venue thereof. This Agreement may be assigned to any successor-in-interest to\nthe business of the Company without the consent of Executive, but may not be assigned by Executive to any\nthird party. This Agreement is not a contract of employment for any definite period and Executive\nacknowledges that Executive’s employment with the Company is terminable at-will.\nIN WITNESS WHEREOF, the parties have hereunto executed this Agreement as of the date first set forth\nabove.\nMyers Industries, Inc.\nDate: 12/2/15\nBy:\n/s/ Sarah R. Coffin\nPrint Name:\nSarah R. Coffin, Chairman,\nCompensation Committee\nExecutive\nDate: 12/2/15\nSignature:\n/s/ R. David Banyard\nPrint Name:\nR. David Banyard\n5
+be638cc77cd0903a2526f16e8229cfe1.pdf	effective_date jurisdiction party term	EXHIBIT A NONDISCLOSURE AGREEMENT This Nondisclosure Agreement ("Agreement") is made effective as of\nAugust 2, 2000 by and between Solar Turbines Incorporated, a Delaware corporation having its principal office in San\nDiego, California ("Solar") and Capstone Turbine Corp., a California corporation having its principal office in Woodland\nHills, California ("Capstone"). WHEREAS, Solar and Capstone entered into an Alliance Agreement dated August 25,\n1997 ("Alliance Agreement"), under which Solar has been supplying certain primary surface recuperators ("PSRs") for\nCapstone's Microturbine Generator sets and Capstone has been purchasing PSRs from Solar. WHEREAS, on August 25,\n1997 Solar and Capstone also entered into a License Agreement ("License Agreement") under which Solar agreed, upon\nCapstone's election, to license Solar Intellectual Property (as defined therein) to Capstone to manufacture and modify\nPSRs for incorporation into Capstone's Microturbines, all in accordance with the terms of such License Agreement.\nWHEREAS, Capstone agreed to pay Solar certain Transition Fees pursuant to that certain Transition Agreement dated\nAugust 2, 2000 between the parties ("Transition Agreement") for the buyout and termination of the Alliance Agreement,\nthe modification and amendment of the License Agreement and the assistance to be provided by Solar in transitioning its\npresent manufacturing capabilities for PSRs for Capstone Microturbines to Capstone, all pursuant and subject to the\nTransition Agreement and the Amended And Restated License Agreement between the parties of even date herewith (the\n"Amended and Restated License Agreement") which define in further detail the transaction contemplated thereby (the\n"Transaction"). WHEREAS, Solar has agreed to share and disclose certain proprietary information and Solar Technology\n(collectively the "Solar Technology" hereunder), as defined in the Amended and Restated License Agreement, to\nCapstone as part of and in furtherance of the Transaction. WHEREAS, certain proprietary information was disclosed\nunder the Alliance Agreement subject to that certain Nondisclosure Agreement dated June 1, 1996 between the parties\nwhich was Exhibit C to the Alliance Agreement ("Prior Nondisclosure Agreement"). WHEREAS, Solar and Capstone\nexecuted a Nondisclosure Agreement, dated July 11, 1994, ("Prior Nondisclosure Agreement") when Capstone was\noperating under the name "NoMac Energy Systems, Inc.". WHEREAS, Capstone is actively engaged in the development\nof gas turbines and recuperated gas turbines in the *** size range and in the development of major components of both\ngas turbines and recuperated gas turbines in this size range; including turbines, 15 16 compressors, air bearings,\ncombustors, permanent magnet alternators, electronic convertors and recuperators and has the right to disclose certain\nproprietary information related thereto ("Capstone Proprietary Information"). WHEREAS, the parties agree that all\nproprietary information disclosed under each of the above described Prior Nondisclosure Agreements and the Solar\nTechnology (as defined in the Amended and Restated Licensing Agreement) and the Capstone Proprietary Information\n(as defined just above), collectively, shall be referred to herein as "proprietary information" and be subject to this\nAgreement. WHEREAS, each party desires to disclose such proprietary information to the other party for the limited\npurposes authorized under and in furtherance of the Transaction and, as to the Solar Technology and Solar proprietary\ninformation, subject to the terms of the Amended and Restated Licensing Agreement. WHEREAS, as used herein,\n"Party", receiving party" and "disclosing party" means each and every party who may receive or disclose Proprietary\nInformation regardless of the use of the singular rather than the plural form "parties". NOW, THEREFORE, in\nconsideration of the foregoing premises, the following promises, covenants and undertakings, and other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound, the\nparties agree as follows: 1. Each Party will use its best efforts to keep in confidence, and not disclose to any person or\npersons or use for purposes other than as allowed under the Amended and Restated License Agreement, proprietary\ninformation disclosed to it under this Agreement. Each Party recognizes that any disclosure of proprietary information\nreceived by it from the other would substantially injure the disclosing Party's business, impair its investments and\ngoodwill and jeopardize its relationships with its buyers and customers. In order to protect such proprietary information,\neach Party agrees: (a) to hold all proprietary information disclosed to it in safekeeping and in strict confidence and not to\ndisclose such proprietary information to any third parties or permit use of all such information to the disadvantage of the\ndisclosing Party; (b) to treat all proprietary information disclosed to it with at least the same degree of care with which\neach treats and protects its own proprietary information which does not wish to disclose to third parties, which in any\nevent shall be reasonable under the circumstances; (c) to limit the access of all proprietary information disclosed to it to\nonly those employees within its organization who require such proprietary information in performing the limited purpose\nof this Agreement, and to inform each of its employees of the provisions of this agreement; and 16 17 (d) to use\nproprietary information disclosed to it only to the extent necessary for performing the limited purposes of this\nAgreement 2. Exceptions. The restrictions contained in Section 1 shall not apply to any proprietary information if the\nsame is: (a) in the public domain at the lime of disclosure, or is subsequently made available by the disclosing Party to\nthe general public without restriction; (b) known by the receiving Party at the time of disclosure, as evidenced by\nappropriate documentation, or independently developed, as evidenced by appropriate documentation, by the receiving\nParty; (c) used or disclosed with the prior written approval of the disclosing Party; (d) becomes known to the receiving\nParty without similar restrictions as to its use or disclosure from a source other than the disclosing Party; (e) used or\ndisclosed after a period of ten (10) years from the date of termination of this Agreement; (f) becomes known pursuant to\njudicial action or Governmental regulations or requirements, provided that the recipient of such data shall have notified\nthe other Party. 3. Neither the execution of this Agreement, nor the furnishing of any materials hereunder, shall be\nconstrued as granting, either expressly or by implication, estoppel or otherwise, any license under any invention or patent\nnow or hereafter owned by or controlled by the Party furnishing the materials. 4. No rights or obligations other than\nthose expressly recited herein are to be implied by this Agreement with respect to patents, inventions and proprietary\ninformation. In providing data pursuant to this Agreement, the Party providing the proprietary information makes no\nrepresentation, either expressed or implied, as to adequacy, sufficiency, or freedom from fault of such proprietary\ninformation and incurs no responsibility nor obligation whatsoever by reason thereof; and the furnishing of such\nproprietary information shall not convey any rights or license with respect to such proprietary information. 5. Nothing in\nthis Agreement shall grant to either Party the right to make commitments of any kind for or on behalf of the other Party\nwithout the prior written consent of the other Party. 6. If a contractual relationship results from discussions between\nSolar and Capstone, the contract or purchase order will authorize Solar to disclose information to other parties which\nhave a need to know after Solar ensures that a nondisclosure agreement such 17 18 as this Agreement is in place with\nsuch parties. Similarly, such contract or purchase order will authorize Capstone, subject to the provision of Paragraph 3.2\nof the Amended and Restated License Agreement, to disclose information to other parties which have a need to know\nafter Capstone ensures that a nondisclosure agreement such as this Agreement is in place with such parties. 7. This\nAgreement may be terminated (a) by either Party for breach of the terms hereof or of the License Agreement or\nTransition Agreement upon giving sixty (60) written notice of its intention to terminate to the other Party unless the\ndefaulting party cures each and every breach within such cure period; or (b) the Agreement shall automatically expire ten\n(10) years from the Effective Date provided, however, that when the Agreement terminates, the obligations not to use\nand not to disclose proprietary information exchanged hereunder shall continue for the period specified hereinabove. 8.\nAll modifications to this Agreement shall be in writing and signed by duly authorized representatives of both\ncorporations. 9. All notices and information shall be addressed as follows: If to Capstone: Capstone Turbine Corp. 21211\nNordhoff Street Chatsworth, California 91311-5844 Attn: Ake Almgren President and Chief Executive Officer With a\ncopy to: Capstone Turbine Corp. 21211 Nordhoff Street Chatsworth, California 91311-5844 Attn: Jeff Watts Chief\nFinancial Officer If to Solar: Solar Turbines Incorporated 2200 Pacific Highway San Diego, CA 92101 Attn: Director,\nRecuperator Business 18 19 With a copy to: General Counsel Legal Department Solar Turbines Incorporated 2200\nPacific Highway San Diego, CA 92101 10. Return of Proprietary information. All proprietary information disclosed to\nthe receiving Party shall remain the property of the disclosing Party and within thirty (30) days of any termination of this\nAgreement in accordance with Paragraph 7 above, the receiving Party agrees to immediately return all proprietary\ninformation and all copies to the disclosing Party with a written statement that the foregoing has been accomplished. 11.\nNotification -and Injunctive Relief. If either Party, inadvertently or otherwise, makes an unauthorized disclosure of the\nother Party's proprietary information to a third party, the violating Party shall immediately take every reasonable action\nto recover the improperly disclosed proprietary information, execute a retroactive protective agreement with the\nunauthorized third party if possible and immediately notify the Party whose data was improperly disclosed ("Injured\nParty") and provide complete information about the unauthorized disclosure and the corrective measures being taken.\nThe Parties agree that monetary damages are inadequate for any material breach involving an unauthorized disclosure\nwhen the Injured Party reasonably believes said breach will cause it to suffer significant business harm. If the Injured\nParty believes, based on the facts, it will suffer material harm from the unauthorized disclosure and the corrective\nmeasures being taken by the violating Party are inadequate to mitigate this harm, the Parties agree the Injured Party shall\nbe entitled to prompt injunctive relief. Both Parties' other legal and equitable remedies and defenses remain unchanged\nby this provision. 12. Each Party reserves the right to change its designation of authorized representative, should\ncircumstances so require, and to notify the other Party, in writing, of any such changes. 13. (a) All technical information\nand ideas relating to any proprietary information disclosed hereunder shall be in writing and will be identified, in\nwriting, as being proprietary information. (b) Oral communications which are considered proprietary by the originating\nParty and so identified shall be reduced to writing within thirty (30) days and shall contain a notice thereon to the effect\nthat any disclosure and use shall be subject to the terms and conditions of this present Agreement. Such orally disclosed\ninformation shall be given the protection afforded proprietary information hereunder during such thirty (30) day period.\n(c) All copies of proprietary information shall contain a similar identification. 19 20 14. This Agreement shall be\ngoverned by and construed in accordance with the laws of the State of California as if made in California for\nperformance entirely within the State of California. 15. This Agreement constitutes the entire agreement between the\nParties with respect to the subject matter hereof, supersedes all prior oral or written agreements regarding the subject\nmatter hereof, and cannot be changed or terminated except by a writing signed by both Parties. 16. If any provision of\nthis Agreement is held illegal, invalid or unenforceable under present or future state or federal laws, or rules and\nregulations promulgated thereunder, effective during the term hereof, such provision shall be fully severable, and this\nAgreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a\npart hereof; and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the\nillegal, invalid or unenforceable provision or by its severance herefrom. Furthermore, in lieu of such illegal, invalid, or\nunenforceable provision, there shall be automatically as part of this Agreement a provision similar in terms to such\nillegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable. 17. This Agreement\nis not assignable or transferable without the prior written consent of each Party, which consent may be withheld for any\nreason. 18. Nothing herein shall be construed as a grant of a license or conveyance of any rights under any discoveries,\ninventions, patents, trade secrets, copyrights, industrial property rights or know-how belonging to any Party hereto. 19.\nThis Agreement shall not constitute, create, give effect to or otherwise imply a teaming, joint venture, leader-follower or\nother formal business relationship. Further, nothing herein shall be construed as providing for the sharing of profits or\nlosses arising out of the efforts of the Parties. No Party shall be liable to the other for any of the costs, expenses, risks, or\nliabilities arising out of the other Party's efforts in connection with this Agreement. 20. Each Party to this Agreement has\nhad the opportunity to review the Agreement with legal counsel. This Agreement shall not be construed or interpreted\nagainst either Party on the basis that such Party drafted or authorized a particular provision, parts of, or the entirety of\nthis Agreement 20 21 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly\nauthorized officers. CAPSTONE TURBINE CORPORATION SOLAR TURBINES INCORPORATED By: /s/ AKE\nALMGREN By: /s/ GARY STROUP --------------------------------- ------------------------------------ Title: President & CEO\nTitle: President ------------------------------ -------------------------------- Date: August 7, 2000 Date: August 3, 2000 ----------\n--------------------- ---------------------------------- CAPSTONE TURBINE CORPORATION SOLAR TURBINES\nINCORPORATED By: /s/ WILLIAM TREECE By: /s/ DAVID W. ESBECK --------------------------------- ------------------\n-- - -- -- - -- - -- - -- - - Title: Sr. VP Strategic Technology Title: Vice President ------------------------------ ----------------------------\n-- - -- Date: August 7, 2000 Date: August 4, 2000 ------------------------------- ---------------------------------- 21	EXHIBIT A NONDISCLOSURE AGREEMENT This Nondisclosure Agreement ("Agreement") is made effective as of\nAugust 2, 2000 by and between Solar Turbines Incorporated, a Delaware corporation having its principal office in San\nDiego, California ("Solar") and Capstone Turbine Corp., a California corporation having its principal office in Woodland\nHills, California ("Capstone"). WHEREAS, Solar and Capstone entered into an Alliance Agreement dated August 25,\n1997 ("Alliance Agreement"), under which Solar has been supplying certain primary surface recuperators ("PSRs") for\nCapstone's Microturbine Generator sets and Capstone has been purchasing PSRs from Solar. WHEREAS, on August 25,\n1997 Solar and Capstone also entered into a License Agreement ("License Agreement") under which Solar agreed, upon\nCapstone's election, to license Solar Intellectual Property (as defined therein) to Capstone to manufacture and modify\nPSRs for incorporation into Capstone's Microturbines, all in accordance with the terms of such License Agreement.\nWHEREAS, Capstone agreed to pay Solar certain Transition Fees pursuant to that certain Transition Agreement dated\nAugust 2, 2000 between the parties ("Transition Agreement") for the buyout and termination of the Alliance Agreement,\nthe modification and amendment of the License Agreement and the assistance to be provided by Solar in transitioning its\npresent manufacturing capabilities for PSRs for Capstone Microturbines to Capstone, all pursuant and subject to the\nTransition Agreement and the Amended And Restated License Agreement between the parties of even date herewith (the\n"Amended and Restated License Agreement") which define in further detail the transaction contemplated thereby (the\n"Transaction"). WHEREAS, Solar has agreed to share and disclose certain proprietary information and Solar Technology\n(collectively the "Solar Technology" hereunder), as defined in the Amended and Restated License Agreement, to\nCapstone as part of and in furtherance of the Transaction. WHEREAS, certain proprietary information was disclosed\nunder the Alliance Agreement subject to that certain Nondisclosure Agreement dated June 1, 1996 between the parties\nwhich was Exhibit C to the Alliance Agreement ("Prior Nondisclosure Agreement"). WHEREAS, Solar and Capstone\nexecuted a Nondisclosure Agreement, dated July 11, 1994, ("Prior Nondisclosure Agreement") when Capstone was\noperating under the name "NoMac Energy Systems, Inc.". WHEREAS, Capstone is actively engaged in the development\nof gas turbines and recuperated gas turbines in the *** size range and in the development of major components of both\ngas turbines and recuperated gas turbines in this size range; including turbines, 15 16 compressors, air bearings,\ncombustors, permanent magnet alternators, electronic convertors and recuperators and has the right to disclose certain\nproprietary information related thereto ("Capstone Proprietary Information"). WHEREAS, the parties agree that all\nproprietary information disclosed under each of the above described Prior Nondisclosure Agreements and the Solar\nTechnology (as defined in the Amended and Restated Licensing Agreement) and the Capstone Proprietary Information\n(as defined just above), collectively, shall be referred to herein as "proprietary information" and be subject to this\nAgreement. WHEREAS, each party desires to disclose such proprietary information to the other party for the limited\npurposes authorized under and in furtherance of the Transaction and, as to the Solar Technology and Solar proprietary\ninformation, subject to the terms of the Amended and Restated Licensing Agreement. WHEREAS, as used herein,\n"Party", receiving party" and "disclosing party" means each and every party who may receive or disclose Proprietary\nInformation regardless of the use of the singular rather than the plural form "parties". NOW, THEREFORE, in\nconsideration of the foregoing premises, the following promises, covenants and undertakings, and other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound, the\nparties agree as follows: 1. Each Party will use its best efforts to keep in confidence, and not disclose to any person or\npersons or use for purposes other than as allowed under the Amended and Restated License Agreement, proprietary\ninformation disclosed to it under this Agreement. Each Party recognizes that any disclosure of proprietary information\nreceived by it from the other would substantially injure the disclosing Party's business, impair its investments and\ngoodwill and jeopardize its relationships with its buyers and customers. In order to protect such proprietary information,\neach Party agrees: (a) to hold all proprietary information disclosed to it in safekeeping and in strict confidence and not to\ndisclose such proprietary information to any third parties or permit use of all such information to the disadvantage of the\ndisclosing Party; (b) to treat all proprietary information disclosed to it with at least the same degree of care with which\neach treats and protects its own proprietary information which does not wish to disclose to third parties, which in any\nevent shall be reasonable under the circumstances; (c) to limit the access of all proprietary information disclosed to it to\nonly those employees within its organization who require such proprietary information in performing the limited purpose\nof this Agreement, and to inform each of its employees of the provisions of this agreement; and 16 17 (d) to use\nproprietary information disclosed to it only to the extent necessary for performing the limited purposes of this\nAgreement 2. Exceptions. The restrictions contained in Section 1 shall not apply to any proprietary information if the\nsame is: (a) in the public domain at the lime of disclosure, or is subsequently made available by the disclosing Party to\nthe general public without restriction; (b) known by the receiving Party at the time of disclosure, as evidenced by\nappropriate documentation, or independently developed, as evidenced by appropriate documentation, by the receiving\nParty; (c) used or disclosed with the prior written approval of the disclosing Party; (d) becomes known to the receiving\nParty without similar restrictions as to its use or disclosure from a source other than the disclosing Party; (e) used or\ndisclosed after a period of ten (10) years from the date of termination of this Agreement; (f) becomes known pursuant to\njudicial action or Governmental regulations or requirements, provided that the recipient of such data shall have notified\nthe other Party. 3. Neither the execution of this Agreement, nor the furnishing of any materials hereunder, shall be\nconstrued as granting, either expressly or by implication, estoppel or otherwise, any license under any invention or patent\nnow or hereafter owned by or controlled by the Party furnishing the materials. 4. No rights or obligations other than\nthose expressly recited herein are to be implied by this Agreement with respect to patents, inventions and proprietary\ninformation. In providing data pursuant to this Agreement, the Party providing the proprietary information makes no\nrepresentation, either expressed or implied, as to adequacy, sufficiency, or freedom from fault of such proprietary\ninformation and incurs no responsibility nor obligation whatsoever by reason thereof; and the furnishing of such\nproprietary information shall not convey any rights or license with respect to such proprietary information. 5. Nothing in\nthis Agreement shall grant to either Party the right to make commitments of any kind for or on behalf of the other Party\nwithout the prior written consent of the other Party. 6. If a contractual relationship results from discussions between\nSolar and Capstone, the contract or purchase order will authorize Solar to disclose information to other parties which\nhave a need to know after Solar ensures that a nondisclosure agreement such 17 18 as this Agreement is in place with\nsuch parties. Similarly, such contract or purchase order will authorize Capstone, subject to the provision of Paragraph 3.2\nof the Amended and Restated License Agreement, to disclose information to other parties which have a need to know\nafter Capstone ensures that a nondisclosure agreement such as this Agreement is in place with such parties. 7. This\nAgreement may be terminated (a) by either Party for breach of the terms hereof or of the License Agreement or\nTransition Agreement upon giving sixty (60) written notice of its intention to terminate to the other Party unless the\ndefaulting party cures each and every breach within such cure period; or (b) the Agreement shall automatically expire ten\n(10) years from the Effective Date provided, however, that when the Agreement terminates, the obligations not to use\nand not to disclose proprietary information exchanged hereunder shall continue for the period specified hereinabove. 8.\nAll modifications to this Agreement shall be in writing and signed by duly authorized representatives of both\ncorporations. 9. All notices and information shall be addressed as follows: If to Capstone: Capstone Turbine Corp. 21211\nNordhoff Street Chatsworth, California 91311-5844 Attn: Ake Almgren President and Chief Executive Officer With a\ncopy to: Capstone Turbine Corp. 21211 Nordhoff Street Chatsworth, California 91311-5844 Attn: Jeff Watts Chief\nFinancial Officer If to Solar: Solar Turbines Incorporated 2200 Pacific Highway San Diego, CA 92101 Attn: Director,\nRecuperator Business 18 19 With a copy to: General Counsel Legal Department Solar Turbines Incorporated 2200\nPacific Highway San Diego, CA 92101 10. Return of Proprietary information. All proprietary information disclosed to\nthe receiving Party shall remain the property of the disclosing Party and within thirty (30) days of any termination of this\nAgreement in accordance with Paragraph 7 above, the receiving Party agrees to immediately return all proprietary\ninformation and all copies to the disclosing Party with a written statement that the foregoing has been accomplished. 11.\nNotification -and Injunctive Relief. If either Party, inadvertently or otherwise, makes an unauthorized disclosure of the\nother Party's proprietary information to a third party, the violating Party shall immediately take every reasonable action\nto recover the improperly disclosed proprietary information, execute a retroactive protective agreement with the\nunauthorized third party if possible and immediately notify the Party whose data was improperly disclosed ("Injured\nParty") and provide complete information about the unauthorized disclosure and the corrective measures being taken.\nThe Parties agree that monetary damages are inadequate for any material breach involving an unauthorized disclosure\nwhen the Injured Party reasonably believes said breach will cause it to suffer significant business harm. If the Injured\nParty believes, based on the facts, it will suffer material harm from the unauthorized disclosure and the corrective\nmeasures being taken by the violating Party are inadequate to mitigate this harm, the Parties agree the Injured Party shall\nbe entitled to prompt injunctive relief. Both Parties' other legal and equitable remedies and defenses remain unchanged\nby this provision. 12. Each Party reserves the right to change its designation of authorized representative, should\ncircumstances so require, and to notify the other Party, in writing, of any such changes. 13. (a) All technical information\nand ideas relating to any proprietary information disclosed hereunder shall be in writing and will be identified, in\nwriting, as being proprietary information. (b) Oral communications which are considered proprietary by the originating\nParty and so identified shall be reduced to writing within thirty (30) days and shall contain a notice thereon to the effect\nthat any disclosure and use shall be subject to the terms and conditions of this present Agreement. Such orally disclosed\ninformation shall be given the protection afforded proprietary information hereunder during such thirty (30) day period.\n(c) All copies of proprietary information shall contain a similar identification. 19 20 14. This Agreement shall be\ngoverned by and construed in accordance with the laws of the State of California as if made in California for\nperformance entirely within the State of California. 15. This Agreement constitutes the entire agreement between the\nParties with respect to the subject matter hereof, supersedes all prior oral or written agreements regarding the subject\nmatter hereof, and cannot be changed or terminated except by a writing signed by both Parties. 16. If any provision of\nthis Agreement is held illegal, invalid or unenforceable under present or future state or federal laws, or rules and\nregulations promulgated thereunder, effective during the term hereof, such provision shall be fully severable, and this\nAgreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a\npart hereof; and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the\nillegal, invalid or unenforceable provision or by its severance herefrom. Furthermore, in lieu of such illegal, invalid, or\nunenforceable provision, there shall be automatically as part of this Agreement a provision similar in terms to such\nillegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable. 17. This Agreement\nis not assignable or transferable without the prior written consent of each Party, which consent may be withheld for any\nreason. 18. Nothing herein shall be construed as a grant of a license or conveyance of any rights under any discoveries,\ninventions, patents, trade secrets, copyrights, industrial property rights or know-how belonging to any Party hereto. 19.\nThis Agreement shall not constitute, create, give effect to or otherwise imply a teaming, joint venture, leader-follower or\nother formal business relationship. Further, nothing herein shall be construed as providing for the sharing of profits or\nlosses arising out of the efforts of the Parties. No Party shall be liable to the other for any of the costs, expenses, risks, or\nliabilities arising out of the other Party's efforts in connection with this Agreement. 20. Each Party to this Agreement has\nhad the opportunity to review the Agreement with legal counsel. This Agreement shall not be construed or interpreted\nagainst either Party on the basis that such Party drafted or authorized a particular provision, parts of, or the entirety of\nthis Agreement 20 21 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly\nauthorized officers. CAPSTONE TURBINE CORPORATION SOLAR TURBINES INCORPORATED By: /s/ AKE\nALMGREN By: /s/ GARY STROUP ---------mmm oo e Title: President & CEO\nTitle: President —--------=mmmmmm oo oo e Date: August 7, 2000 Date: August 3, 2000 ----------\n------------------------------------------------------- CAPSTONE TURBINE CORPORATION SOLAR TURBINES\nINCORPORATED By: /s/ WILLIAM TREECE By: /s/ DAVID W. ESBECK --------=---mom e e\n------------------ Title: Sr. VP Strategic Technology Title: Vice President -----=--=====-mmmmmmmm e o\n----- Date: August 7, 2000 Date: August 4, 2000 ----=-====nmmmmmmm oo e D]	EXHIBIT A NONDISCLOSURE AGREEMENT This Nondisclosure Agreement ("Agreement") is made effective as of\nAugust 2, 2000 by and between Solar Turbines Incorporated, a Delaware corporation having its principal office in San\nDiego, California ("Solar") and Capstone Turbine Corp., a California corporation having its principal office in Woodland\nHills, California ("Capstone"). WHEREAS, Solar and Capstone entered into an Alliance Agreement dated August 25,\n1997\n("Alliance\nAgreement"),\nunder\nwhich\nSolar\nhas\nbeen\nsupplying\ncertain\nprimary\nsurface\nrecuperators\n("PSRs")\nfor\nCapstone's 1997 Solar Microturbine and Capstone Generator also entered sets into and a Capstone License Agreement has been purchasing ("License Agreement") PSRs from Solar. under WHEREAS, which Solar on agreed, August upon 25,\nCapstone's election, to license Solar Intellectual Property (as defined therein) to Capstone to manufacture and modify\nPSRs for incorporation into Capstone's Microturbines, all in accordance with the terms of such License Agreement.\nWHEREAS,\nCapstone\nagreed\nto\npay\nSolar\ncertain\nTransition\nFees\npursuant\nto\nthat\ncertain\nTransition\nAgreement\ndated\nAugust 2, 2000 between the parties ("Transition Agreement") for the buyout and termination of the Alliance Agreement,\nthe modification and amendment of the License Agreement and the assistance to be provided by Solar in transitioning its\npresent manufacturing capabilities for PSRs for Capstone Microturbines to Capstone, all pursuant and subject to the\nTransition Agreement and the Amended And Restated License Agreement between the parties of even date herewith (the\n"Amended and Restated License Agreement") which define in further detail the transaction contemplated thereby (the\n"Transaction") WHEREAS, Solar has agreed to share and disclose certain proprietary information and Solar Technology\n(collectively the "Solar Technology" hereunder), as defined in the Amended and Restated License Agreement, to\nCapstone as part of and in furtherance of the Transaction. WHEREAS, certain proprietary information was disclosed\nunder the Alliance Agreement subject to that certain Nondisclosure Agreement dated June 1, 1996 between the parties\nwhich was Exhibit C to the Alliance Agreement ("Prior Nondisclosure Agreement"). WHEREAS, Solar and Capstone\nexecuted a Nondisclosure Agreement, dated July 11, 1994, ("Prior Nondisclosure Agreement") when Capstone was\noperating under the name "NoMac Energy Systems, Inc.". WHEREAS, Capstone is actively engaged in the development\nof\ngas turbines and recuperated gas turbines in the ** size range and in the development of major components of\nboth\ngas turbines and recuperated gas turbines in this size range; including turbines, 15 16 compressors, air bearings,\ncombustors, permanent magnet alternators, electronic convertors and recuperators and has the right to disclose certain\nproprietary information related thereto ("Capstone Proprietary Information"). WHEREAS, the parties agree that all\nproprietary information disclosed under each of the above described Prior Nondisclosure Agreements and the Solar\nTechnology (as defined in the Amended and Restated Licensing Agreement) and the Capstone Proprietary Information\n(as defined just above), collectively, shall be referred to herein as "proprietary information" and be subject to this\nAgreement. WHEREAS, each party desires to disclose such proprietary information to the other party for the limited\npurposes authorized under and in furtherance of the Transaction and, as to the Solar Technology and Solar proprietary\ninformation, subject to the terms of the Amended and Restated Licensing Agreement WHEREAS, as used herein,\n"Party", receiving party" and "disclosing party" means each and every party who may receive or disclose Proprietary\nInformation regardless of the use of the singular rather than the plural form "parties". NOW, THEREFORE, in\nconsideration of the foregoing premises, the following promises, covenants and undertakings, and other good and\nvaluable\nconsideration,\nthe\nreceipt\nand\nsufficiency\nof\nwhich\nare\nhereby\nacknowledged,\nintending\nto\nbe\nlegally\nbound,\nthe\nparties agree as follows: 1. Each Party will use its best efforts to keep in confidence, and not disclose to any person or\npersons or use for purposes other than as allowed under the Amended and Restated License Agreement, proprietary\ninformation disclosed to it under this Agreement. Each Party recognizes that any disclosure of proprietary information\nreceived by it from the other would substantially injure the disclosing Party's business, impair its investments and\ngoodwill and jeopardize its relationships with its buyers and customers. In order to protect such proprietary information,\neach Party agrees: (a) to hold all proprietary information disclosed to it in safekeeping and in strict confidence and not\nto\ndisclose such proprietary information to any third parties or permit use of all such information to the disadvantage of the\ndisclosing Party; (b) to treat all proprietary information disclosed to it with at least the same degree of care with which\neach treats and protects its own proprietary information which does not wish to disclose to third parties, which in any\nevent shall be reasonable under the circumstances; (c) to limit the access of all proprietary information disclosed to it\nto\nonly those employees within its organization who require such proprietary information in performing the limited purpose\nof this Agreement, and to inform each of its employees of the provisions of this agreement; and 16 17 (d) to use\nproprietary information disclosed to it only to the extent necessary for performing the limited purposes of this\nAgreement 2. Exceptions. The restrictions contained in Section 1 shall not apply to any proprietary information if the\nsame is: (a) in the public domain at the lime of disclosure, or is subsequently made available by the disclosing Party\nto\nthe general public without restriction; (b) known by the receiving Party at the time of disclosure, as evidenced by\nappropriate documentation, or independently developed as evidenced by appropriate documentation, by the receiving\nParty;\n(c)\nused or disclosed with the prior written approval of the disclosing Party; (d) becomes known to the receiving\nParty without similar restrictions as to its use or disclosure from a source other than the disclosing Party; (e) used or\ndisclosed after a period of ten (10) years from the date of termination of this Agreement; (f) becomes known pursuant to\njudicial action or Governmental regulations or requirements, provided that the recipient of such data shall have notified\nthe other Party. 3. Neither the execution of this Agreement, nor the furnishing of any materials hereunder, shall be\nconstrued as granting, either expressly or by implication, estoppel or otherwise, any license under any invention or\npatent\nnow or hereafter owned by or controlled by the Party furnishing the materials. 4. No rights or obligations other than\nthose expressly recited herein are to be implied by this Agreement with respect to patents, inventions and proprietary\ninformation. In providing data pursuant to this Agreement, the Party providing the proprietary information makes no\nrepresentation, either expressed or implied, as to adequacy, sufficiency, or freedom from fault of such proprietary\ninformation and incurs no responsibility nor obligation whatsoever by reason thereof; and the furnishing of such\nproprietary information shall not convey any rights or license with respect to such proprietary information. 5. Nothing\nin\nthis Agreement shall grant to either Party the right to make commitments of any kind for or on behalf of the other Party\nwithout the prior written consent of the other Party. 6. If a contractual relationship results from discussions between\nSolar and Capstone, the contract or purchase order will authorize Solar to disclose information to other parties which\nhave a need to know after Solar ensures that a nondisclosure agreement such 17 18 as this Agreement is in place with\nsuch parties. Similarly, such contract or purchase order will authorize Capstone, subject to the provision of Paragraph 3.2\nof the Amended and Restated License Agreement, to disclose information to other parties which have a need to know\nafter\nCapstone\nensures\nthat\na\nnondisclosure\nagreement\nsuch\nas\nthis\nAgreement\nis\nin\nplace\nwith\nsuch\nparties.\n7.\nThis\nAgreement may be terminated (a) by either Party for breach of the terms hereof or of the License Agreement or\nTransition Agreement upon giving sixty (60) written notice of its intention to terminate to the other Party unless the\ndefaulting party cures each and every breach within such cure period; or (b) the Agreement shall automatically expire\nten\n(10) years from the Effective Date provided, however, that when the Agreement terminates, the obligations not to use\nand\nnot to disclose proprietary information exchanged hereunder shall continue for the period specified hereinabove.\n8.\nAll modifications to this Agreement shall be in writing and signed by duly authorized representatives of both\ncorporations. 9. All notices and information shall be addressed as follows: If to Capstone: Capstone Turbine Corp. 21211\nNordhoff Street Chatsworth, California 91311-5844 Attn: Ake Almgren President and Chief Executive Officer With\na\ncopy to: Capstone Turbine Corp. 21211 Nordhoff Street Chatsworth, California 91311-5844 Attn: Jeff Watts Chief\nFinancial Officer If to Solar: Solar Turbines Incorporated 2200 Pacific Highway San Diego, CA 92101 Attn: Director,\nRecuperator Business 18 19 With a copy to: General Counsel Legal Department Solar Turbines Incorporated 2200\nPacific Highway San Diego, CA 92101 10. Return of Proprietary information. All proprietary information disclosed to\nthe\nreceiving\nParty\nshall remain the property of the disclosing Party and within thirty (30) days of any termination\nof\nthis\nAgreement in accordance with Paragraph 7 above, the receiving Party agrees to immediately return all proprietary\ninformation and all copies to the disclosing Party with a written statement that the foregoing has been accomplished. 11.\nNotification -and Injunctive Relief. If either Party, inadvertently or otherwise, makes an unauthorized disclosure of the\nother Party's proprietary information to a third party, the violating Party shall immediately take every reasonable action\nto recover the improperly disclosed proprietary information, execute a retroactive protective agreement with the\nunauthorized third party if possible and immediately notify the Party whose data was improperly disclosed ("Injured\nParty") and provide complete information about the unauthorized disclosure and the corrective measures being taken.\nThe Parties agree that monetary damages are inadequate for any material breach involving an unauthorized disclosure\nwhen the Injured Party reasonably believes said breach will cause it to suffer significant business harm. If the Injured\nParty believes, based on the facts, it will suffer material harm from the unauthorized disclosure and the corrective\nmeasures being taken by the violating Party are inadequate to mitigate this harm, the Parties agree the Injured Party shall\nbe entitled to prompt injunctive relief. Both Parties' other legal and equitable remedies and defenses remain unchanged\nby this provision. 12. Each Party reserves the right to change its designation of authorized representative, should\ncircumstances SO require, and to notify the other Party, in writing, of any such changes. 13. (a) All technical information\nand ideas relating to any proprietary information disclosed hereunder shall be in writing and will be identified, in\nwriting, as being proprietary information. (b) Oral communications which are considered proprietary by the originating\nParty and SO identified shall be reduced to writing within thirty (30) days and shall contain a notice thereon to the effect\nthat\nany disclosure and use shall be subject to the terms and conditions of this present Agreement. Such orally disclosed\ninformation shall be given the protection afforded proprietary information hereunder during such thirty (30) day period.\n(c) All copies of proprietary information shall contain a similar identification. 19 20 14. This Agreement shall be\ngoverned by and construed in accordance with the laws of the State of California as if made in California for\nperformance entirely within the State of California. 15. This Agreement constitutes the entire agreement between the\nParties with respect to the subject matter hereof, supersedes all prior oral or written agreements regarding the subject\nmatter hereof, and cannot be changed or terminated except by a writing signed by both Parties. 16. If any provision of\nthis Agreement is held illegal, invalid or unenforceable under present or future state or federal laws, or rules and\nregulations promulgated thereunder, effective during the term hereof, such provision shall be fully severable, and this\nAgreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a\npart hereof; and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the\nillegal, invalid or unenforceable provision or by its severance herefrom. Furthermore, in lieu of such illegal, invalid,\nor\nunenforceable provision, there shall be automatically as part of this Agreement a provision similar in terms to such\nillegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable. 17. This Agreement\nis not assignable or transferable without the prior written consent of each Party, which consent may be withheld for any\nreason. 18. Nothing herein shall be construed as a grant of a license or conveyance of any rights under any discoveries,\ninventions, patents, trade secrets, copyrights, industrial property rights or know-how belonging to any Party hereto. 19.\nThis Agreement shall not constitute, create, give effect to or otherwise imply a teaming, joint venture, leader-follower or\nother\nformal\nbusiness\nrelationship.\nFurther,\nnothing\nherein\nshall\nbe\nconstrued\nas\nproviding\nfor\nthe\nsharing\nof\nprofits\nor\nlosses arising out of the efforts of the Parties. No Party shall be liable to the other for any of the costs, expenses, risks, or\nliabilities arising out of the other Party's efforts in connection with this Agreement. 20. Each Party to this Agreement has\nhad the opportunity to review the Agreement with legal counsel. This Agreement shall not be construed or interpreted\nagainst either Party on the basis that such Party drafted or authorized a particular provision, parts of, or the entirety of\nthis Agreement 20 21 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly\nauthorized officers. CAPSTONE TURBINE CORPORATION SOLAR TURBINES INCORPORATED By: /s/ AKE\nALMGREN By: /s/ GARY STROUP\nTitle: President & CEO\nTitle: President\nDate: August 7, 2000 Date: August 3, 2000\nCAPSTONE TURBINE CORPORATION SOLAR TURBINES\nINCORPORATED By: /s/ WILLIAM TREECE By: /s/ DAVID W. ESBECK\nTitle: Sr. VP Strategic Technology Title: Vice President\nDate: August 7, 2000 Date: August 4, 2000\n21	EXHIBIT A NONDISCLOSURE AGREEMENT This Nondisclosure Agreement ("Agreement") is made effective as of\nAugust 2, 2000 by and between Solar Turbines Incorporated, a Delaware corporation having its principal office in San\nDiego, California ("Solar") and Capstone Turbine Corp., a California corporation having its principal office in Woodland\nHills, California ("Capstone"). WHEREAS, Solar and Capstone entered into an Alliance Agreement dated August 25,\n1997 ("Alliance Agreement"), under which Solar has been supplying certain primary surface recuperators ("PSRs") for\nCapstone's Microturbine Generator sets and Capstone has been purchasing PSRs from Solar. WHEREAS, on August 25,\n1997 Solar and Capstone also entered into a License Agreement ("License Agreement") under which Solar agreed, upon\nCapstone's election, to license Solar Intellectual Property (as defined therein) to Capstone to manufacture and modify\nPSRs for incorporation into Capstone's Microturbines, all in accordance with the terms of such License Agreement.\nWHEREAS, Capstone agreed to pay Solar certain Transition Fees pursuant to that certain Transition Agreement dated\nAugust 2, 2000 between the parties ("Transition Agreement") for the buyout and termination of the Alliance Agreement,\nthe modification and amendment of the License Agreement and the assistance to be provided by Solar in transitioning its\npresent manufacturing capabilities for PSRs for Capstone Microturbines to Capstone, all pursuant and subject to the\nTransition Agreement and the Amended And Restated License Agreement between the parties of even date herewith (the\n"Amended and Restated License Agreement") which define in further detail the transaction contemplated thereby (the\n"Transaction"). WHEREAS, Solar has agreed to share and disclose certain proprietary information and Solar Technology\n(collectively the "Solar Technology" hereunder), as defined in the Amended and Restated License Agreement, to\nCapstone as part of and in furtherance of the Transaction. WHEREAS, certain proprietary information was disclosed\nunder the Alliance Agreement subject to that certain Nondisclosure Agreement dated June 1, 1996 between the parties\nwhich was Exhibit C to the Alliance Agreement ("Prior Nondisclosure Agreement"). WHEREAS, Solar and Capstone\nexecuted a Nondisclosure Agreement, dated July 11, 1994, ("Prior Nondisclosure Agreement") when Capstone was\noperating under the name "NoMac Energy Systems, Inc.". WHEREAS, Capstone is actively engaged in the development\nof gas turbines and recuperated gas turbines in the *** size range and in the development of major components of both\ngas turbines and recuperated gas turbines in this size range; including turbines, 15 16 compressors, air bearings,\ncombustors, permanent magnet alternators, electronic convertors and recuperators and has the right to disclose certain\nproprietary information related thereto ("Capstone Proprietary Information"). WHEREAS, the parties agree that all\nproprietary information disclosed under each of the above described Prior Nondisclosure Agreements and the Solar\nTechnology (as defined in the Amended and Restated Licensing Agreement) and the Capstone Proprietary Information\n(as defined just above), collectively, shall be referred to herein as "proprietary information" and be subject to this\nAgreement. WHEREAS, each party desires to disclose such proprietary information to the other party for the limited\npurposes authorized under and in furtherance of the Transaction and, as to the Solar Technology and Solar proprietary\ninformation, subject to the terms of the Amended and Restated Licensing Agreement. WHEREAS, as used herein,\n"Party", receiving party" and "disclosing party" means each and every party who may receive or disclose Proprietary\nInformation regardless of the use of the singular rather than the plural form "parties". NOW, THEREFORE, in\nconsideration of the foregoing premises, the following promises, covenants and undertakings, and other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound, the\nparties agree as follows: 1. Each Party will use its best efforts to keep in confidence, and not disclose to any person or\npersons or use for purposes other than as allowed under the Amended and Restated License Agreement, proprietary\ninformation disclosed to it under this Agreement. Each Party recognizes that any disclosure of proprietary information\nreceived by it from the other would substantially injure the disclosing Party's business, impair its investments and\ngoodwill and jeopardize its relationships with its buyers and customers. In order to protect such proprietary information,\neach Party agrees: (a) to hold all proprietary information disclosed to it in safekeeping and in strict confidence and not to\ndisclose such proprietary information to any third parties or permit use of all such information to the disadvantage of the\ndisclosing Party; (b) to treat all proprietary information disclosed to it with at least the same degree of care with which\neach treats and protects its own proprietary information which does not wish to disclose to third parties, which in any\nevent shall be reasonable under the circumstances; (c) to limit the access of all proprietary information disclosed to it to\nonly those employees within its organization who require such proprietary information in performing the limited purpose\nof this Agreement, and to inform each of its employees of the provisions of this agreement; and 16 17 (d) to use\nproprietary information disclosed to it only to the extent necessary for performing the limited purposes of this\nAgreement 2. Exceptions. The restrictions contained in Section 1 shall not apply to any proprietary information if the\nsame is: (a) in the public domain at the lime of disclosure, or is subsequently made available by the disclosing Party to\nthe general public without restriction; (b) known by the receiving Party at the time of disclosure, as evidenced by\nappropriate documentation, or independently developed, as evidenced by appropriate documentation, by the receiving\nParty; (c) used or disclosed with the prior written approval of the disclosing Party; (d) becomes known to the receiving\nParty without similar restrictions as to its use or disclosure from a source other than the disclosing Party; (e) used or\ndisclosed after a period of ten (10) years from the date of termination of this Agreement; (f) becomes known pursuant to\njudicial action or Governmental regulations or requirements, provided that the recipient of such data shall have notified\nthe other Party. 3. Neither the execution of this Agreement, nor the furnishing of any materials hereunder, shall be\nconstrued as granting, either expressly or by implication, estoppel or otherwise, any license under any invention or patent\nnow or hereafter owned by or controlled by the Party furnishing the materials. 4. No rights or obligations other than\nthose expressly recited herein are to be implied by this Agreement with respect to patents, inventions and proprietary\ninformation. In providing data pursuant to this Agreement, the Party providing the proprietary information makes no\nrepresentation, either expressed or implied, as to adequacy, sufficiency, or freedom from fault of such proprietary\ninformation and incurs no responsibility nor obligation whatsoever by reason thereof; and the furnishing of such\nproprietary information shall not convey any rights or license with respect to such proprietary information. 5. Nothing in\nthis Agreement shall grant to either Party the right to make commitments of any kind for or on behalf of the other Party\nwithout the prior written consent of the other Party. 6. If a contractual relationship results from discussions between\nSolar and Capstone, the contract or purchase order will authorize Solar to disclose information to other parties which\nhave a need to know after Solar ensures that a nondisclosure agreement such 17 18 as this Agreement is in place with\nsuch parties. Similarly, such contract or purchase order will authorize Capstone, subject to the provision of Paragraph 3.2\nof the Amended and Restated License Agreement, to disclose information to other parties which have a need to know\nafter Capstone ensures that a nondisclosure agreement such as this Agreement is in place with such parties. 7. This\nAgreement may be terminated (a) by either Party for breach of the terms hereof or of the License Agreement or\nTransition Agreement upon giving sixty (60) written notice of its intention to terminate to the other Party unless the\ndefaulting party cures each and every breach within such cure period; or (b) the Agreement shall automatically expire ten\n(10) years from the Effective Date provided, however, that when the Agreement terminates, the obligations not to use\nand not to disclose proprietary information exchanged hereunder shall continue for the period specified hereinabove. 8.\nAll modifications to this Agreement shall be in writing and signed by duly authorized representatives of both\ncorporations. 9. All notices and information shall be addressed as follows: If to Capstone: Capstone Turbine Corp. 21211\nNordhoff Street Chatsworth, California 91311-5844 Attn: Ake Almgren President and Chief Executive Officer With a\ncopy to: Capstone Turbine Corp. 21211 Nordhoff Street Chatsworth, California 91311-5844 Attn: Jeff Watts Chief\nFinancial Officer If to Solar: Solar Turbines Incorporated 2200 Pacific Highway San Diego, CA 92101 Attn: Director,\nRecuperator Business 18 19 With a copy to: General Counsel Legal Department Solar Turbines Incorporated 2200\nPacific Highway San Diego, CA 92101 10. Return of Proprietary information. All proprietary information disclosed to\nthe receiving Party shall remain the property of the disclosing Party and within thirty (30) days of any termination of this\nAgreement in accordance with Paragraph 7 above, the receiving Party agrees to immediately return all proprietary\ninformation and all copies to the disclosing Party with a written statement that the foregoing has been accomplished. 11.\nNotification -and Injunctive Relief. If either Party, inadvertently or otherwise, makes an unauthorized disclosure of the\nother Party's proprietary information to a third party, the violating Party shall immediately take every reasonable action\nto recover the improperly disclosed proprietary information, execute a retroactive protective agreement with the\nunauthorized third party if possible and immediately notify the Party whose data was improperly disclosed ("Injured\nParty") and provide complete information about the unauthorized disclosure and the corrective measures being taken.\nThe Parties agree that monetary damages are inadequate for any material breach involving an unauthorized disclosure\nwhen the Injured Party reasonably believes said breach will cause it to suffer significant business harm. If the Injured\nParty believes, based on the facts, it will suffer material harm from the unauthorized disclosure and the corrective\nmeasures being taken by the violating Party are inadequate to mitigate this harm, the Parties agree the Injured Party shall\nbe entitled to prompt injunctive relief. Both Parties' other legal and equitable remedies and defenses remain unchanged\nby this provision. 12. Each Party reserves the right to change its designation of authorized representative, should\ncircumstances so require, and to notify the other Party, in writing, of any such changes. 13. (a) All technical information\nand ideas relating to any proprietary information disclosed hereunder shall be in writing and will be identified, in\nwriting, as being proprietary information. (b) Oral communications which are considered proprietary by the originating\nParty and so identified shall be reduced to writing within thirty (30) days and shall contain a notice thereon to the effect\nthat any disclosure and use shall be subject to the terms and conditions of this present Agreement. Such orally disclosed\ninformation shall be given the protection afforded proprietary information hereunder during such thirty (30) day period.\n(c) All copies of proprietary information shall contain a similar identification. 19 20 14. This Agreement shall be\ngoverned by and construed in accordance with the laws of the State of California as if made in California for\nperformance entirely within the State of California. 15. This Agreement constitutes the entire agreement between the\nParties with respect to the subject matter hereof, supersedes all prior oral or written agreements regarding the subject\nmatter hereof, and cannot be changed or terminated except by a writing signed by both Parties. 16. If any provision of\nthis Agreement is held illegal, invalid or unenforceable under present or future state or federal laws, or rules and\nregulations promulgated thereunder, effective during the term hereof, such provision shall be fully severable, and this\nAgreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a\npart hereof; and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the\nillegal, invalid or unenforceable provision or by its severance herefrom. Furthermore, in lieu of such illegal, invalid, or\nunenforceable provision, there shall be automatically as part of this Agreement a provision similar in terms to such\nillegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable. 17. This Agreement\nis not assignable or transferable without the prior written consent of each Party, which consent may be withheld for any\nreason. 18. Nothing herein shall be construed as a grant of a license or conveyance of any rights under any discoveries,\ninventions, patents, trade secrets, copyrights, industrial property rights or know-how belonging to any Party hereto. 19.\nThis Agreement shall not constitute, create, give effect to or otherwise imply a teaming, joint venture, leader-follower or\nother formal business relationship. Further, nothing herein shall be construed as providing for the sharing of profits or\nlosses arising out of the efforts of the Parties. No Party shall be liable to the other for any of the costs, expenses, risks, or\nliabilities arising out of the other Party's efforts in connection with this Agreement. 20. Each Party to this Agreement has\nhad the opportunity to review the Agreement with legal counsel. This Agreement shall not be construed or interpreted\nagainst either Party on the basis that such Party drafted or authorized a particular provision, parts of, or the entirety of\nthis Agreement 20 21 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly\nauthorized officers. CAPSTONE TURBINE CORPORATION SOLAR TURBINES INCORPORATED By: /s/ AKE\nALMGREN By: /s/ GARY STROUP --------------------------------- ------------------------------------ Title: President & CEO\nTitle: President ------------------------------ -------------------------------- Date: August 7, 2000 Date: August 3, 2000 ----------\n--------------------- ---------------------------------- CAPSTONE TURBINE CORPORATION SOLAR TURBINES\nINCORPORATED By: /s/ WILLIAM TREECE By: /s/ DAVID W. ESBECK --------------------------------- ------------------\n-- - -- -- - -- - -- - -- - - Title: Sr. VP Strategic Technology Title: Vice President ------------------------------ ----------------------------\n-- - -- Date: August 7, 2000 Date: August 4, 2000 ------------------------------- ---------------------------------- 21
+bed0aec4a6819b285bfe7475122ec4f7.pdf	effective_date jurisdiction party	NON-DISCLOSURE CONFIDENTIALITY AGREEMENT\nDOUBLETAKE SOFTWARE, INC.\nS. Craig Huke (hereinafter referred to as the “employee”) hereby acknowledges that Double-Take Software, Inc., et al. (hereinafter\nreferred to as the “Corporation”) is engaged in the business of developing, selling, distributing, supporting, installing and servicing\ncomputer related software. Both parties agree that the operation of the business and performance of the work of the Corporation\ninvolves special skills, knowledge, trade secrets, special techniques, procedures or names and addresses of the customers, past and\npresent, of the Corporation. The employee acknowledges that he is being employed with the express understanding that all of the\nforegoing shall not be divulged or otherwise disclosed to anyone at any time.\nIt is further understood and agreed to by the employee, that during the time of his employment by the Corporation, that his time and\nefforts will be exclusively devoted to the Corporation’s business, and that he will not participate in any activity of a similar nature\nwith any other entity, in any capacity, (e.g. sales, consulting, engineering, supervision or hands on activity). All computer program\nsource and information relating to such source code, trade secrets, books, manuals, bulletins, work papers, files, reports and other\nrelated materials are the property of the Corporation and must be returned to the Corporation upon request or at the termination of\nemployment, along with any reproductions of such documentation.\nEmployee agrees to hold in confidence and to refrain from using or disclosing to any third party, without prior written consent of\nCorporation, (a( any information disclosed in confidence to employee by the Corporation, and (b( any information developed or\ndelivered by employee during the term of employee’s employment by the Corporation. All computer program source and information\nrelating to such source code received, developed or delivered by employee in connection with his employment shall be deemed\nconfidential information and belonging exclusively to the Corporation for purposes of this paragraph.\nEmployee agrees to provide the Corporation with all source code and complete source code documentation for all computer programs\ndeveloped or modified by employee in the course of his employment by the Corporation. Ownership of all goods, code, and\nmaterials, etc; delivered by employee hereunder is hereby assigned irrevocably to the Corporation, including but not limited to all\ncopyrights, trademarks, trade secrets and patent rights in such goods and materials. Employee agrees to execute and return to the\nCorporation all documents required by the Corporation from time to time to evidence, document or, if necessary, to perfect such\nownership, for any purpose desired by the Corporation, and hereby appoints the Corporation employee’s attorney-in-fact with full\npowers to execute such document itself in the event employee is unable to provide the Corporation with such signed documents.\nIn the event the term of the employee’s employment shall expire or terminate,\n4of5\nCONFIDENTIAL\nemployee agrees not to divulge any of the above information, etc., or to engage or participate, directly or indirectly, for himself or on\nbehalf of or for the benefit of a third party, firm or corporation in developing products based on the information gained during his\nterm of employment by the Corporation. Employee also agrees he will not participate, directly or indirectly, for himself or on behalf\nof or for the benefit of a third party, firm or corporation in soliciting competing products, services and/or solutions to the\nCorporation’s existing customers or proposed customers (which were being solicited by the Corporation during the time of his\nemployment) for a period of two (2) years and will not encourage, induce or attempt to induce any employee of the Corporation to\nleave the employ of the corporation for a period of two (2) years.\nThe employee agrees that these terms are so vitally important to the operation of the business of the Corporation, that any violation of\nthe above conditions will result in their termination of employment, forfeitures of any and all benefits and bonuses accrued, as well as\nentitling the Corporation to any injunctive relief allowed by Law.\nThis Agreement shall be governed by the Laws of the State of New Jersey and there are no understandings, agreements,\nrepresentations, express or implied, not specified herein.\nAGREED TO BY:\n/s/ S. Craig Huke\n10/31/06\nEmployee\n(DATE)\nACCEPTED BY:\n/s/ Dean Goodermote\nFor the Corporation\nTITLE:Chief Executive Officer\n11/1/06\n(DATE)\n5of5\nCONFIDENTIAL	NON-DISCLOSURE CONFIDENTIALITY AGREEMENT\nDOUBLETAKE SOFTWARE, INC.\nS. Craig Huke (hereinafter referred to as the ”employee”) hereby acknowledges that Double-Take Software, Inc., et al. (hereinafter\nreferred to as the ”Corporation") is engaged in the business of developing, selling, distributing, supporting, installing and servicing\ncomputer related software. Both parties agree that the operation of the business and performance of the work of the Corporation\ninvolves special skills, knowledge, trade secrets, special techniques, procedures or names and addresses of the customers, past and\npresent, of the Corporation. The employee acknowledges that he is being employed with the express understanding that all of the\nforegoing shall not be divulged or otherwise disclosed to anyone at any time.\nIt is further understood and agreed to by the employee, that during the time of his employment by the Corporation, that his time and\nefforts will be exclusively devoted to the Corporation' s business, and that he will not participate in any activity of a similar nature\nwith any other entity, in any capacity, (e.g. sales, consulting, engineering, supervision or hands on activity). All computer program\nsource and information relating to such source code, trade secrets, books, manuals, bulletins, work papers, files, reports and other\nrelated materials are the property of the Corporation and must be returned to the Corporation upon request or at the termination of\nemployment, along with any reproductions of such documentation.\nEmployee agrees to hold in confidence and to refrain from using or disclosing to any third party, without prior written consent of\nCorporation, (a( any information disclosed in confidence to employee by the Corporation, and (b( any information developed or\ndelivered by employee during the term of employee' s employment by the Corporation. All computer program source and information\nrelating to such source code received, developed or delivered by employee in connection with his employment shall be deemed\nconfidential information and belonging exclusively to the Corporation for purposes of this paragraph.\nEmployee agrees to provide the Corporation with all source code and complete source code documentation for all computer programs\ndeveloped or modified by employee in the course of his employment by the Corporation. Ownership of all goods, code, and\nmaterials, etc; delivered by employee hereunder is hereby assigned irrevocably to the Corporation, including but not limited to all\ncopyrights, trademarks, trade secrets and patent rights in such goods and materials. Employee agrees to execute and return to the\nCorporation all documents required by the Corporation from time to time to evidence, document or, if necessary, to perfect such\nownership, for any purpose desired by the Corporation, and hereby appoints the Corporation employee's attomey-in-fact with full\npowers to execute such document itself in the event employee is unable to provide the Corporation with such signed documents.\nIn the event the term of the employee' s employment shall expire or terminate,\n4 of 5\nCONFIDENTIAL\nemployee agrees not to divulge any of the above information, etc., or to engage or participate, directly or indirectly, for himself or on\nbehalf of or for the benefit of a third party, firm or corporation in developing products based on the information gained during his\nterm of employment by the Corporation. Employee also agrees he will not participate, directly or indirectly, for himself or on behalf\nof or for the benefit of a third party, firm or corporation in soliciting competing products, services and/or solutions to the\nCorporation' s existing customers or proposed customers (which were being solicited by the Corporation during the time of his\nemployment) for a period of two (2) years and will not encourage, induce or attempt to induce any employee of the Corporation to\nleave the employ of the corporation for a period of two (2) years.\nThe employee agrees that these terms are so vitally important to the operation of the business of the Corporation, that any violation of\nthe above conditions will result in their termination of employment, forfeitures of any and all benefits and bonuses accrued, as well as\nentitling the Corporation to any injunctive relief allowed by Law.\nThis Agreement shall be governed by the Laws of the State of New Jersey and there are no understandings, agreements,\nrepresentations, express or implied, not specified herein.\nAGREED TO BY:\n/s/ S. Craig Huke 10/31/06\nEmployee (DATE)\nACCEPTED BY:\n/s/ Dean Goodermote\nFor the Corporation\nTITLE Chief Executive Officer 11/1/06\n(DATE)\n5 of 5\nCONFIDENTIAL	NON-DISCLOSURE CONFIDENTIALITY AGREEMENT\nDOUBLETAKE SOFTWARE, INC.\nS. Craig Huke (hereinafter referred to as the "employee") hereby acknowledges that Double-Take Software, Inc., et al. (hereinafter\nreferred to as the "Corporation") is engaged in the business of developing, selling, distributing, supporting, installing and servicing\ncomputer related software. Both parties agree that the operation of the business and performance of the work of the Corporation\ninvolves special skills, knowledge, trade secrets, special techniques, procedures or names and addresses of the customers, past and\npresent, of the Corporation. The employee acknowledges that he is being employed with the express understanding that all of the\nforegoing shall not be divulged or otherwise disclosed to anyone at any time.\nIt is further understood and agreed to by the employee, that during the time of his employment by the Corporation that his time\nand\nefforts will be exclusively devoted to the Corporation's business, and that he will not participate in any activity of a similar nature\nwith any other entity, in any capacity, (e.g. sales, consulting engineering, supervision or hands on activity). All computer program\nsource and information relating to such source code, trade secrets, books, manuals, bulletins, work papers, files, reports and other\nrelated materials are the property of the Corporation and must be returned to the Corporation upon request or at the termination of\nemployment, along with any reproductions of such documentation.\nEmployee agrees to hold in confidence and to refrain from using or disclosing to any third party, without prior written consent of\nCorporation, (a( any information disclosed in confidence to employee by the Corporation, and (b( any information developed or\ndelivered by employee during the term of employee's employment by the Corporation. All computer program source and information\nrelating to such source code received, developed or delivered by employee in connection with his employment shall be deemed\nconfidential information and belonging exclusively to the Corporation for purposes of this paragraph.\nEmployee agrees to provide the Corporation with all source code and complete source code documentation for all computer programs\ndeveloped or modified by employee in the course of his employment by the Corporation. Ownership of all goods, code, and\nmaterials, etc; delivered by employee hereunder is hereby assigned irrevocably to the Corporation, including but not limited to all\ncopyrights, trademarks, trade secrets and patent rights in such goods and materials. Employee agrees to execute and return to the\nCorporation all documents required by the Corporation from time to time to evidence, document or, if necessary, to perfect such\nownership, for any purpose desired by the Corporation, and hereby appoints the Corporation employee's attomey-in-fact with full\npowers to execute such document itself in the event employee is unable to provide the Corporation with such signed documents.\nIn the event the term of the employee's employment shall expire or terminate,\n4 of 5\nCONFIDENTIAL\nemployee agrees not to divulge any of the above information, etc., or to engage or participate, directly or indirectly, for himself or on\nbehalf of or for the benefit of a third party, firm or corporation in developing products based on the information gained during his\nterm of employment by the Corporation. Employee also agrees he will not participate, directly or indirectly, for himself or on behalf\nof or for the benefit of a third party, firm or corporation in soliciting competing products, services and/or solutions to the\nCorporation's existing customers or proposed customers (which were being solicited by the Corporation during the time of his\nemployment) for a period of two (2) years and will not encourage, induce or attempt to induce any employee of the Corporation to\nleave the employ of the corporation for a period of two (2) years.\nThe employee agrees that these terms are so vitally important to the operation of the business of the Corporation, that any violation of\nthe above conditions will result in their termination of employment, forfeitures of any and all benefits and bonuses accrued, as well\nas\nentitling the Corporation to any injunctive relief allowed by Law.\nThis Agreement shall be governed by the Laws of the State of New Jersey and there are no understandings, agreements,\nrepresentations, express or implied, not specified herein.\nAGREED TO BY\n/s/ S. Craig Huke\n10/31/06\nEmployee\n(DATE)\nACCEPTED BY:\n/s/ Dean Goodermote\nFor the Corporation\nTITLECH Chief Executive Officer\n11/1/06\n(DATE)\n5 of 5\nCONFIDENTIAL	NON-DISCLOSURE CONFIDENTIALITY AGREEMENT\nDOUBLETAKE SOFTWARE, INC.\nS. Craig Huke (hereinafter referred to as the “employee”) hereby acknowledges that Double-Take Software, Inc., et al. (hereinafter\nreferred to as the “Corporation”) is engaged in the business of developing, selling, distributing, supporting, installing and servicing\ncomputer related software. Both parties agree that the operation of the business and performance of the work of the Corporation\ninvolves special skills, knowledge, trade secrets, special techniques, procedures or names and addresses of the customers, past and\npresent, of the Corporation. The employee acknowledges that he is being employed with the express understanding that all of the\nforegoing shall not be divulged or otherwise disclosed to anyone at any time.\nIt is further understood and agreed to by the employee, that during the time of his employment by the Corporation, that his time and\nefforts will be exclusively devoted to the Corporation’s business, and that he will not participate in any activity of a similar nature\nwith any other entity, in any capacity, (e.g. sales, consulting, engineering, supervision or hands on activity). All computer program\nsource and information relating to such source code, trade secrets, books, manuals, bulletins, work papers, files, reports and other\nrelated materials are the property of the Corporation and must be returned to the Corporation upon request or at the termination of\nemployment, along with any reproductions of such documentation.\nEmployee agrees to hold in confidence and to refrain from using or disclosing to any third party, without prior written consent of\nCorporation, (a( any information disclosed in confidence to employee by the Corporation, and (b( any information developed or\ndelivered by employee during the term of employee’s employment by the Corporation. All computer program source and information\nrelating to such source code received, developed or delivered by employee in connection with his employment shall be deemed\nconfidential information and belonging exclusively to the Corporation for purposes of this paragraph.\nEmployee agrees to provide the Corporation with all source code and complete source code documentation for all computer programs\ndeveloped or modified by employee in the course of his employment by the Corporation. Ownership of all goods, code, and\nmaterials, etc; delivered by employee hereunder is hereby assigned irrevocably to the Corporation, including but not limited to all\ncopyrights, trademarks, trade secrets and patent rights in such goods and materials. Employee agrees to execute and return to the\nCorporation all documents required by the Corporation from time to time to evidence, document or, if necessary, to perfect such\nownership, for any purpose desired by the Corporation, and hereby appoints the Corporation employee’s attorney-in-fact with full\npowers to execute such document itself in the event employee is unable to provide the Corporation with such signed documents.\nIn the event the term of the employee’s employment shall expire or terminate,\n4of5\nCONFIDENTIAL\nemployee agrees not to divulge any of the above information, etc., or to engage or participate, directly or indirectly, for himself or on\nbehalf of or for the benefit of a third party, firm or corporation in developing products based on the information gained during his\nterm of employment by the Corporation. Employee also agrees he will not participate, directly or indirectly, for himself or on behalf\nof or for the benefit of a third party, firm or corporation in soliciting competing products, services and/or solutions to the\nCorporation’s existing customers or proposed customers (which were being solicited by the Corporation during the time of his\nemployment) for a period of two (2) years and will not encourage, induce or attempt to induce any employee of the Corporation to\nleave the employ of the corporation for a period of two (2) years.\nThe employee agrees that these terms are so vitally important to the operation of the business of the Corporation, that any violation of\nthe above conditions will result in their termination of employment, forfeitures of any and all benefits and bonuses accrued, as well as\nentitling the Corporation to any injunctive relief allowed by Law.\nThis Agreement shall be governed by the Laws of the State of New Jersey and there are no understandings, agreements,\nrepresentations, express or implied, not specified herein.\nAGREED TO BY:\n/s/ S. Craig Huke\n10/31/06\nEmployee\n(DATE)\nACCEPTED BY:\n/s/ Dean Goodermote\nFor the Corporation\nTITLE:Chief Executive Officer\n11/1/06\n(DATE)\n5of5\nCONFIDENTIAL
+bf331c53fe1197f9f0e634dc3fece13e.pdf	jurisdiction party	EXHIBIT 10.18\nFORM OF NON-DISCLOSURE AGREEMENT\n____________________\n(Company Name), with its principal offices located at _____________ _____________________________________ (Company\nAddress) (herein after called "ABC"), is interested in entering into a business relationship (a "Possible Transaction") with AeroGrow International, Inc. , a Nevada\ncorporation, with its headquarters located at 900 28th Street, Suite 201, Boulder, CO 80303 (herein after called "AeroGrow"). In order to discuss and evaluate the\nPossible Transaction, (a) ABC has requested that disclose AeroGrow disclose to ABC certain confidential and proprietary data and other information of\nsubstantial value to AeroGrow, and (b) AeroGrow has requested that ABC disclose to AeroGrow certain confidential and proprietary data and other information of\nsubstantial value to ABC. This information may be in both oral and written form. Each of ABC and AeroGrow acknowledges that the other's disclosure of its\nconfidential and proprietary data and information to third parties will prejudice its ability to conduct its business successfully. Accordingly, each of ABC and\nAeroGrow agrees that its respective receipt and use of the other's confidential and proprietary data and information will be subject to the following terms and\nconditions:\n1. As used in this Agreement, the following terms have the following meanings:\n(a) "Affiliate" means (i) any other Person directly or indirectly (through one or more intermediaries) controlling, controlled by or under common control with that\nPerson; (ii) any other Person owning or controlling ten percent (10%) or more of the outstanding voting securities or beneficial interests of that Person; or (iii) an\nofficer, director, partner or member, or a member of the immediate family of an officer, director, partner or member, of that Person. For these purposes "control"\nmeans the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership\nor voting securities, by contract or otherwise.\n(b) "Confidential Information" means: (i) all information, data and materials disclosed or made available to the Receiving Party by the Disclosing Party in\nconnection with a Possible Transaction, including, without limitation, all trade secrets, inventions, drawings, file data, test data, documentation, diagrams,\nspecifications, know how, processes, formulas, models, flow charts, software in various stages of development, source codes, object codes, research and\ndevelopment procedures, test results, marketing techniques and materials, marketing and development plans, price lists, pricing policies, business plans,\ninformation relating to customers and/or suppliers' identities, characteristics and agreements, financial information and projection, and employee files and (ii) all\nanalyses, compilations, studies, reports, records or other documents or materials which contain, or are prepared on the basis of any such non-public information\nand which are either furnished to the Receiving Party or are prepared by or for the Receiving Party or any of its directors, officers, employees, members,\nmanagers, agents, advisors or Affiliates. Notwithstanding the above, "Confidential Information" does not include any information that (i) is or becomes public\nknowledge otherwise than by the Receiving Party's act or omission; or (ii) is or becomes available to the Receiving Party without obligation of confidence, of\nwhich the Receiving Party was or should have been aware, from a source (other than the Disclosing Party) having the legal right to disclose that information; or\n(iii) is already in the possession of the Receiving Party in documented form without an obligation of confidence, of which the Receiving Party was or should have\nbeen aware, and was not received by the Receiving Party in anticipation of a Possible Transaction or as a result of a prior relationship with the Disclosing Party.\n(c) "Disclosing Party" means the Person, either ABC or AeroGrow that is disclosing the Confidential Information to the Receiving Party.\n(d) "Person" means any entity, corporation, company, association, joint venture, partnership, trust, limited liability company, limited liability partnership, real\nestate investment trust, organization, individual (including personal representatives, executors and heirs of a deceased individual), nation, state, government\n(including agencies, departments, bureaus, boards, divisions and instrumentalities thereof), court, tribunal, mediator, arbitrator, trustee, receiver or liquidator.\n(e) "Receiving Party" means the Person, either ABC or AeroGrow, that is receiving the Confidential Information from the Disclosing Party.\n(f) "Representative" of a Person means any director, officer, employee, shareholder, partner, member, Affiliate, agent or advisor of that Person, including,\nwithout limitation, any attorney, accountant, consultant, banker or financial advisor of that Person.\n2. The Receiving Party will preserve as confidential all Confidential Information which the Receiving Party may obtain or prepare (a) during the course of\ndiscussions between ABC and AeroGrow concerning a Possible Transaction, (b) during the evaluation of a Possible Transaction and (c) during the course of any\nbusiness relationship which may be established between ABC and AeroGrow. Without the prior written consent of the Disclosing Party, which may be given or\nwithheld by the Disclosing Party in its sole and absolute discretion, the Receiving Party will not (a) disclose or demonstrate any Confidential Information to any\nother Person nor give any other Person access thereto, nor (b) use any Confidential Information except in evaluating a Possible Transaction, nor (c) disclose to\nany other Person either the fact that discussions or negotiations are taking place concerning a Possible Transaction, or the terms, conditions or status thereof or\nthe fact that Confidential Information is being made available to the Receiving Party; provided, however, that any such Confidential Information may be disclosed\nto those of the Receiving Party's Representatives who (i) need to know the same for the sole purpose of evaluating a Possible Transaction and (ii) agree to keep\nsuch Confidential Information confidential and to be bound by the terms of this Agreement to the same extent as if they were parties hereto. If so requested by the\nDisclosing Party, the Receiving Party will cause any such Representatives to execute this Agreement so as to be personally bound hereby. In any event, the\nReceiving Party will be responsible for any breach of this Agreement by any of its Representatives, and the Receiving Party will, at its sole expense, take all\nreasonable measures (including, but not limited to, court proceedings) to restrain its Representatives from any prohibited or unauthorized disclosure or use of the\nConfidential Information. Furthermore, no publicity release or announcement concerning the discussions between ABC and AeroGrow, this Agreement or a\nPossible Transaction will be issued, by either ABC or AeroGrow without the advance written approval of the form and substance thereof by the other. In the event\nthat any such publicity release or announcement is required by law (in the opinion of either party's counsel), ABC or AeroGrow will consult with each other in\nadvance and cooperate with respect to any required press release or other disclosure.\n-2-\n3. If the Receiving Party or any of its Representatives is requested (by subpoena, interrogatory, request for information or documents, civil investigate demand or\nother similar legal process) to disclose any of the Confidential Information to any other Person, the Receiving Party will provide the Disclosing Party with prompt\nwritten notice of such request so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions\nof this Agreement. Thereafter, if the Receiving Party or any such Representative is nevertheless, in the opinion of its counsel, legally compelled to disclose the\nConfidential Information so requested or else stand liable for contempt or suffer other censure or penalty, the Receiving Party or that Representative may, without\nliability hereunder, disclose to such other Person only that portion of the Confidential Information which the Receiving Party's counsel advises is legally required\nto be disclosed. The Receiving Party will, in addition, exercise its best efforts to preserve the confidentiality of the Confidential Information so "disclosed and\ncooperate with the Disclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the\nConfidential Information so disclosed.\n4. The Receiving Party will use at least the same degree of care to avoid the publication, disclosure, reproduction or other dissemination of the Confidential\nInformation as the Receiving Party employs with respect to its own valuable, proprietary information which it protects from unauthorized publication, disclosure,\nreproduction or other dissemination, but no less than a reasonable degree of care.\n5. The Receiving Party will not conduct any inquiries regarding the Confidential Information or a Possible Transaction with any of the Disclosing Party's\nstockholders, officers, members, managers, directors, employees, affiliates, suppliers, proposed business partners or customers or with others having business\nrelationships with the Disclosing Party except through Representatives of the Disclosing Party designated in writing by the Disclosing Party from time to time.\n6. All documents, drawings, records, data bases, programs and other physical media of expression incorporating or containing any Confidential Information\nwhich the Disclosing Party furnishes to the Receiving Party are acknowledged to be the property of the Disclosing Party and will be promptly surrendered to the\nDisclosing Party upon the expiration or termination of the discussions between ABC and AeroGrow or any business relationship which may be established\nbetween ABC and AeroGrow. In addition, except to the extent the Receiving Party is advised by counsel that such action is prohibited by law, the Receiving Party\nwill also destroy all copies, summaries and notes thereof made by the Receiving Party and all analyses, compilations, studies, reports or other documents or\nmaterials which are prepared by the Receiving Party or its advisors and which contain or reflect any Confidential Information which the Disclosing Party furnishes\nto the Receiving Party. After such expiration or termination the Receiving Party will make no further use of any of these materials, and if so requested by the\nDisclosing Party, a duly authorized officer of the Receiving Party will deliver to the Disclosing Party a certificate indicating that the requirements of the immediately\npreceding two sentences have been satisfied in full. The foregoing will apply regardless of the reasons for or circumstances surrounding such expiration or\ntermination.\n-3-\n7. Except as otherwise provided in any binding agreement between ABC and AeroGrow, all designs, methods, processes, developments, ideas and/or inventions\ndirectly related to, or usable in, the Disclosing Party's business which the Receiving Party conceives, develops or reduces to practice, or causes to be conceived,\ndeveloped or reduced to practice, as a result of the Receiving Party's access to the Confidential Information will be the Disclosing Party's sole property. Upon\ndemand and without any further consideration the Receiving Party will confirm such ownership by executing assignments of all of the Receiving Party's rights\ntherein to the Disclosing Party.\n8. The Receiving Party understands that the Disclosing Party makes no representations or warranties as to the accuracy or completeness of any Confidential\nInformation disclosed to the Receiving Party, and the Receiving Party agrees that neither the Disclosing Party nor any of its officers, directors, stockholders,\nmembers, managers, employees, agents or attorneys or controlling Persons within the meaning of Section 20 of the Securities Exchange Act of 1934 will have\nany liability to the Receiving Party arising from the Receiving Party's use of the Confidential Information, except if the Disclosing Party is held to be in breach of\nthis Agreement.\n9. The Receiving Party agrees that money damages will not be a sufficient remedy for any breach of this Agreement by the Receiving Party or any of its\nRepresentatives and that in addition to all other remedies which may be available, the Disclosing Party will be entitled to seek specific performance and injunctive\nor other equitable relied without bond, as a remedy for any such breach or threatened breach.\n10. To the fullest extent permitted by applicable law, rule or regulation, all of the covenants and agreements contained in this Agreement will survive the\ntermination of any discussions between ABC and AeroGrow or the termination or expiration of any business relationship which may hereafter be established\nbetween ABC and AeroGrow, and will also survive any definitive agreements entered into by ABC and AeroGrow, in each such case for a period of three (3)\nyears from the date hereof, unless and only to the extent that such definitive agreements expressly supersede the covenants and agreements contained herein;\nprovided, however, that the provisions of this Agreement relating to the preservation of the confidentiality of the Confidential Information and each party's\nobligation to reimburse the other for all costs incurred by the other in connection with the successful enforcement of this Agreement as to such matters will, in any\nevent, survive for so long as the Confidential Information remains confidential.\n11. This Agreement supersedes all previous agreements, written or oral, relating to the above subject matter, and may be modified only by a written instrument\nduly executed by ABC and AeroGrow.\n12. In the event of any litigation between ABC and AeroGrow in connection with this Agreement, the unsuccessful party to such litigation will pay to the\nsuccessful party therein all reasonable costs and expenses, including but not limited to reasonable attorneys' fees incurred therein by such successful party,\nwhich costs, expenses and attorneys' fees shall be included as a part of any judgment rendered in such action in addition to any other relief to which the\nsuccessful party may be entitled.\n-4-\n13. All clauses and covenants contained in this Agreement are severable and in the event any of them is held to be invalid by any court, this Agreement will be\ninterpreted as if such invalid clauses and covenants were not contained herein.\n14. This Agreement will be construed according to the laws of the State of Colorado, without regard to its principles concerning conflicts of law. Any suit brought\nhereon must be brought in the state or federal courts sitting in the County of Denver, Colorado. ABC and AeroGrow hereby waive any claim or defense that such\nforum is not convenient or proper.\nACKNOWLEDGED AND AGREED\nAS OF _______________:\nACKNOWLEDGED AND AGREED\nAS OF _______________ , 2 0__ __:\nAEROGROW INTERNATIONAL, INC .\nF. Wiedemann, VP\n-5-	EXHIBIT 10.18\nFORM OF NON-DISCLOSURE AGREEMENT\n \n(Company Name), with is principal offices located at __________________________________________________ (Company\nAddress) (herein after called "ABC"), is interested in entering into a business relationship (a "Possible Transaction") with AeroGrow International, Inc., a Nevada\ncorporation, with is headquarters located at 900 28th Street, Suite 201, Boulder, CO 80303 (herein after called "AeroGrow"). In orderto discuss and evaluate the\nPossible Transaction, (a) ABC has requested that disclose AeroG row disclose to ABC certain confidential and proprietary data and other information of\nsubstantial value to AeroG row, and (b) AeroG row has requested thatABC disclose to AeroG row certain confidential and proprietary data and other information of\nsubstantial value to ABC. This information may be in both oral and written form. Each ofABC and AeroG row acknowledges that the other's disclosure of is\nconfidential and proprietary data and information to third parties will prejudice is ability to conduct is business successfully. Accordingly, each ofABC and\nAeroG row agrees that is respective receipt and use of the other's confidential and proprietary data and information will be subjectto the following terms and\nconditions:\n1. As used in this Agreement, the following terms have the following meanings:\n(a) "Affiliate" means (i) any other Person directly or indirectly (through one or more intermediaries) controlling, controlled by or under common control with that\nPerson; (ii) any other Person owning or controlling ten percent (10%) or more of the outstanding voting securities or beneficial interess of that Person; or (iii) an\nofficer, director, partner or member, or a member of the immediate family of an officer, director, partner or member, of that Person. For these purposes "control"\nmeans the possession, director indirect, of the power to director cause the direction of the management and policies of a Person, whether through the ownership\nor voting securities, by contractor otherwise.\n(b) "Confidential Information" means: (i) all information, data and materials disclosed or made available to the Receiving Party by the Disclosing Party in\nconnection with a Possible Transaction, including, without limitation, all trade secres, inventions, drawings, file data, test data, documentation, diagrams,\nspecifications, know how, processes, formulas, models, flow charts, software in various stages ofdevelopment, source codes, objectcodes, research and\ndevelopment procedures, test results, marketing techniques and materials, marketing and development plans, price lists, pricing policies, business plans,\ninformation relating to customers and/or suppliers' identities, characteristics and agreements, financial information and projection, and employee files and (ii) all\nanalyses, compilations, studies, repors, records or other documents or materials which contain, or are prepared on the basis of any such non-public information\nand which are either furnished to the Receiving Party or are prepared by or for the Receiving Party or any of is directors, officers, employees, members,\nmanagers, agens, advisors or Affiliates. Notwithstanding the above, "Confidential Information" does notinclude any information that(i) is or becomes public\nknowledge othenNise than by the Receiving Party's actor omission; or (ii) is or becomes available to the Receiving Party withoutobligation ofconfidence, of\nwhich the Receiving Party was or should have been aware, from a source (other than the Disclosing Party) having the legal right to disclose that information; or\n(iii) is already in the possession of the Receiving Party in documented form without an obligation ofconfidence, ofwhich the Receiving Party was or should have\nbeen aware, and was not received by the Receiving Party in anticipation of a Possible Transaction or as a resultof a prior relationship with the Disclosing Party.\n \n(c) " isclosing Party" means the Person, either ABC or AeroGrow thatis disclosing the Confidential Information to the Receiving Party.\n(d) "Person" means any entity, corporation, company, association, joint venture, partnership, trust, limited liability company, limited liability partnership, real\nestate investment trust, organization, individual (including personal representatives, executors and heirs of a deceased individual), nation, state, government\n(including agencies, departments, bureaus, boards, divisions and instrumentalities thereof), court, tribunal, mediator, arbitrator, trustee, receiver or liquidator.\n(e) " eceiving Par_ty" means the Person, either ABC or AeroGrow, thatis receiving the Confidential Information from the Disclosing Party.\n(f) " epresentative" of a Person means any director, officer, employee, shareholder, partner, member, Affiliate, agentor advisorofthat Person, including,\nwithout limitation, any attorney, accountant, consultant, banker or financial advisor of that Person.\n2. The Receiving Party will preserve as confidential all Confidential Information which the Receiving Party may obtain or prepare (a) during the course of\ndiscussions between ABC and AeroG row concerning a Possible Transaction, (b) during the evaluation of a Possible Transaction and (c) during the course of any\nbusiness relationship which may be established between ABC and AeroG row. Withoutthe prior written consentof the Disclosing Party, which may be given or\nwithheld by the Disclosing Party in is sole and absolute discretion, the Receiving Party will not (a) disclose or demonstrate any Confidential Information to any\nother Person nor give any other Person access thereto, nor (b) use any Confidential Information except in evaluating a Possible Transaction, nor (c) disclose to\nany other Person either the factthatdiscussions or negotiations are taking place concerning a Possible Transaction, or the terms, conditions or status thereofor\nthe factthat Confidential Information is being made available to the Receiving Party; provided, however, that any such Confidential Information may be disclosed\nto those of the Receiving Party's Representatives who (i) need to know the same for the sole purpose ofevaluating a Possible Transaction and (ii) agree to keep\nsuch Confidential Information confidential and to be bound by the terms of this Agreement to the same extent as if they were parties hereto. Ifso requested by the\nDisclosing Party, the Receiving Party will cause any such Representatives to execute this Agreement so as to be personally bound hereby. In any event, the\nReceiving Party will be responsible for any breach of this Agreement by any of is Representatives, and the Receiving Party will, at is sole expense, take all\nreasonable measures (including, but not limited to, court proceedings) to restrain is Representatives from any prohibited or unauthorized disclosure or use of the\nConfidential Information. Furthermore, no publicity release or announcementconcerning the discussions between ABC and AeroG row, this Agreement or a\nPossible Transaction will be issued, by either ABC or AeroG row without the advance written approval of the form and substance thereof by the other. In the event\nthat any such publicity release or announcement is required by law (in the opinion ofeither party's counsel), ABC or AeroG row will consultwith each other in\nadvance and cooperate with respectto any required press release or other disclosure.\n \n3. Ifthe Receiving Party or any of its Representatives is requested (by subpoena, interrogatory, requestfor information or documents, civil investigate demand or\nother similar legal process) to disclose any ofthe Confidential Information to any other Person, the Receiving Party will provide the Disclosing Party with prompt\nwritten notice ofsuch requestso thatthe Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions\nof this Agreement. Thereafter, if the Receiving Party or any such Representative is nevertheless, in the opinion of its counsel, legally compelled to disclose the\nConfidential Information so requested or else stand liable for contemptor suffer other censure or penalty, the Receiving Party or that Representative may, without\nliability hereunder, disclose to such other Person only that portion of the Confidential Information which the Receiving Party's counsel advises is legally required\nto be disclosed. The Receiving Party will, in addition, exercise its bestefforts to preserve the confidentiality of the Confidential Information so "disclosed and\ncooperate with the Disclosing Party to obtain an appropriate protective order or other reliable assurance thatconfidential treatmentwill be accorded to the\nConfidential Information so disclosed.\n4. The Receiving Party will use at least the same degree of care to avoid the publication, disclosure, reproduction or other dissemination of the Confidential\nInformation as the Receiving Party employs with respect to its own valuable, proprietary information which it protects from unauthorized publication, disclosure,\nreproduction or other dissemination, but no less than a reasonable degree ofcare.\n5. The Receiving Party will notconduct any inquiries regarding the Confidential Information or a Possible Transaction with any of the Disclosing Party's\nstockholders, officers, members, managers, directors, employees, affiliates, suppliers, proposed business partners or customers or with others having business\nrelationships with the Disclosing Party except through Representatives of the Disclosing Party designated in writing by the Disclosing Party from time to time.\n6. All documents, drawings, records, data bases, programs and other physical media of expression incorporating or containing any Confidential Information\nwhich the Disclosing Party furnishes to the Receiving Party are acknowledged to be the property of the Disclosing Party and will be promptly surrendered to the\nDisclosing Party upon the expiration or termination of the discussions between ABC and AeroG row or any business relationship which may be established\nbetween ABC and AeroG row. In addition, except to the extent the Receiving Party is advised by counsel thatsuch action is prohibited by law, the Receiving Party\nwill also destroy all copies, summaries and notes thereof made by the Receiving Party and all analyses, compilations, studies, reports or other documents or\nmaterials which are prepared by the Receiving Party or its advisors and which contain or reflect any Confidential Information which the Disclosing Party furnishes\nto the Receiving Party. After such expiration or termination the Receiving Party will make no further use of any ofthese materials, and ifso requested by the\nDisclosing Party, a duly authorized officer of the Receiving Party will deliver to the Disclosing Party a certificate indicating thatthe requirements ofthe immediately\npreceding two sentences have been satisfied in full. The foregoing will apply regardless of the reasons for or circumstances surrounding such expiration or\ntermination.\n.3.\n \n7. Except as othenNise provided in any binding agreement between ABC and AeroG row, all designs, methods, processes, developments, ideas and/or inventions\ndirectly related to, or usable in, the Disclosing Party's business which the Receiving Party conceives, develops or reduces to practice, or causes to be conceived,\ndeveloped or reduced to practice, as a result of the Receiving Party's access to the Confidential Information will be the Disclosing Party's sole property. Upon\ndemand and without any further consideration the Receiving Party will confirm such ownership by executing assignments of all of the Receiving Party's rights\ntherein to the Disclosing Party.\n8. The Receiving Party understands thatthe Disclosing Party makes no representations or warranties as to the accuracy or completeness ofany Confidential\nInformation disclosed to the Receiving Party, and the Receiving Party agrees that neither the Disclosing Party nor any of its officers, directors, stockholders,\nmembers, managers, employees, agents or attorneys or controlling Persons within the meaning of Section 20 of the Securities Exchange Act of 1934 will have\nany liability to the Receiving Party arising from the Receiving Party's use ofthe Confidential Information, except if the Disclosing Party is held to be in breach of\nthis Agreement.\n9. The Receiving Party agrees that money damages will not be a sufficient remedy for any breach of this Agreement by the Receiving Party or any of its\nRepresentatives and that in addition to all other remedies which may be available, the Disclosing Party will be entitled to seek specific performance and injunctive\nor other equitable relied without bond, as a remedy for any such breach or threatened breach.\n10. To the fullestextent permitted by applicable law, rule or regulation, all of the covenants and agreements contained in this Agreement will sun/ive the\ntermination of any discussions between ABC and AeroG row or the termination or expiration of any business relationship which may hereafter be established\nbetween ABC and AeroG row, and will also survive any definitive agreements entered into by ABC and AeroG row, in each such case for a period ofthree (3)\nyears from the date hereof, unless and only to the extentthatsuch definitive agreements expressly supersede the covenants and agreements contained herein;\nprovided, however, thatthe provisions of this Agreement relating to the preservation of the confidentiality of the Confidential Information and each party's\nobligation to reimburse the other for all costs incurred by the other in connection with the successful enforcement of this Agreement as to such matters will, in any\nevent, sun/ive for so long as the Confidential Information remains confidential.\n11. This Agreement supersedes all previous agreements, written or oral, relating to the above subject matter, and may be modified only by a written instrument\nduly executed by ABC and AeroG row.\n12. In the event of any litigation between ABC and AeroG row in connection with this Agreement, the unsuccessful party to such litigation will pay to the\nsuccessful party therein all reasonable costs and expenses, including but not limited to reasonable attorneys' fees incurred therein by such successful party,\nwhich costs, expenses and attorneys' fees shall be included as a part of anyjudgment rendered in such action in addition to any other relief to which the\nsuccessful party may be entitled.\n.4.\n \n13. All clauses and covenants contained in this Agreement are severable and in the event any of them is held to be invalid by any court, this Agreementwill be\ninterpreted as if such invalid clauses and covenants were not contained herein.\n14. This Agreement will be construed according to the laws of the State of Colorado, without regard to its principles concerning conflicts of law. Any suit brought\nhereon must be brought in the state or federal courts sitting in the County of Denver, Colorado. ABC and AeroG row hereby waive any claim or defense thatsuch\nforum is not convenient or proper.\nACKNOWLEDGED AND AGREED\nACKNOWLEDGED AND AGREED\nAEROG ROW INTERNATIONAL, INC.\nF. Wiedemann, VP	EXHIBIT 10.18\nFORM OF NON-DISCLOSURE AGREEMENT\nCompany Name), with its principal offices located at\n(Company\nAddress) (herein after called "ABC"), is interested in entering into a business relationship (a "Possible Transaction") with AeroGrov International, Inc., a Nevada\ncorporation, with its headquarters located at 900 28th Street, Suite 201, Boulder, CO 80303 (herein after called "AeroGrow"). In order to discuss and evaluate the\nPossible Transaction, (a) ABC has requested that disclose AeroGrow disclose to ABC certain confidential and proprietary data and other information of\nsubstantial value to AeroGrow, and (b) AeroGrow has requested that ABC disclose to AeroGrow certain confidential and proprietary data and other information of\nsubstantial value to ABC. This information may be in both oral and written form. Each of ABC and AeroGrow acknowledges that the other's disclosure of its\nconfidential and proprietary data and information to third parties will prejudice its ability to conduct its business successfully. Accordingly, each of ABC and\nAeroGrow agrees that its respective receipt and use of the other's confidential and proprietary data and information wil be subject to the following terms and\nconditions:\n1. As used in this Agreement, the following terms have the following meanings:\n(a) "Affiliate" means (i) any other Person directly or indirectly (through one or more intermediaries controlling, controlled by or under common control with that\nPerson; (ii) any other Person owning or controlling ten percent (10%) or more of the outstanding voting securities or beneficial interests of that Person; or (iii) an\nofficer, director, partner or member, or a member of the immediate family of an officer, director, partner or member, of that Person. or these purposes "control"\nmeans the possession direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership\nor voting securities, by contract or otherwise.\n(b) "Confidential Information" means: (i) all information, data and materials disclosed or made available to the Receiving Party by the Disclosing Party in\nconnection with a Possible Transaction, including, without limitation, all trade secrets, inventions, drawings, file data test data, documentation, diagrams,\nspecifications, know how, processes, formulas, models, flow charts, software in various stages of development, source codes, object codes, research and\ndevelopment procedures, test results, marketing techniques and materials, marketing and development plans, price lists, pricing policies, business plans,\ninformation relating to customers and/or suppliers' identities, characteristics and agreements, financial information and projection, and employee files and (ii) all\nanalyses, compilations, studies, reports, records or other documents or materials which contain, or are prepared on the basis of any such non-public information\nand which are either furnished to the Receiving Party or are prepared by or for the Receiving Party or any of its directors, officers, employees, members,\nmanagers, agents, advisors or Affiliates. Notwithstanding the above, "Confidential Information" does not include any information that (i) is or becomes public\nknowledge otherwise than by the Receiving Party's act or omission; or (ii) is or becomes available to the Receiving arty without obligation of confidence, of\nwhich the Receiving Party was or should have been aware, from a source (other than the Disclosing Party) having the legal right to disclose that information;\nor\n(iii) is already in the possession of the Receiving Party in documented form without an obligation of confidence, of which the Receiving Party was or should have\nbeen aware, and was not received by the eceiving Party in anticipation of a Possible Transaction or as a result of a prior relationship with the Disclosing Party.\n(c)\n"Disclosing Party" means the Person, either ABC or AeroGrow that is disclosing the Confidential Information to the Receiving Party.\n(d) "Person" means any entity, corporation, company, association, joint venture, partnership, trust, limited liability company, limited liability partnership, real\nestate investment trust, organization, individual (including personal representatives, executors and heirs of a deceased individual), nation, state, government\n(including agencies, departments, bureaus, boards, divisions and instrumentalities thereof), court, tribunal, mediator, arbitrator, trustee, receiver or liquidator.\n(e)\n"Receiving Party" means the Person, either ABC or AeroGrow, that is receiving the Confidentia Information from the Disclosing Party.\n(f) 'Representative" of a Person means any director, officer, employee, shareholder, partner, member, Affiliate, agent or advisor of that Person, including,\nwithout limitation, any attorney, accountant, consultant, banker or financial advisor of that Person.\n2. The Receiving Party will preserve as confidential all Confidential Information which the Receiving Party may obtain or prepare (a) during the course of\ndiscussions between ABC and AeroGrow concerning a Possible Transaction, (b) during the evaluation of a Possible Transaction and (c) during the course of any\nbusiness relationship which may be established between ABC and AeroGrow Vithout the prior written consent of the Disclosing arty, which may be given or\nwithheld by the Disclosing Party in its sole and absolute discretion, the eceiving Party will not (a) disclose or demonstrate any Confidential Information to any\nother Person nor give any other Person access thereto, nor (b) use any Confidential Information except in evaluating a Possible Transaction, nor (c) disclose\nto\nany other Person either the fact that discussions or negotiations are taking place concerning a Possible Transaction, or the terms, conditions or status thereof\nor\nthe fact that Confidential Information is being made available to the Receiving Party; provided, however, that any such Confidential Information may be disclosed\nto those of the Receiving Party's Representatives who (i) need to know the same for the sole purpose of evaluating a Possible Transaction and (ii) agree to keep\nsuch Confidential Information confidential and to be bound by the terms of this Agreement to the same extent as if they were parties hereto. If so requested by the\nDisclosing Party, the eceiving Party will cause any such Representatives to execute this Agreement so as to be personally bound hereby. In any event, the\nReceiving Party will be responsible for any breach of this Agreement by any of its Representatives, and the Receiving Party will, at its sole expense, take all\nreasonable measures (including, but not limited to, court proceedings) to restrain its Representatives from any prohibited or unauthorized disclosure or use of the\nConfidential Information Furthermore, no publicity release or announcement concerning the discussions between ABC and AeroGrow, this Agreement or a\nPossible Transaction wil be issued, by either ABC or AeroGrow without the advance written approval of the form and substance thereof by the other. In the event\nthat any such publicity release or announcement is required by law (in the opinion of either party's counsel), ABC or AeroGrow will consult with each other in\nadvance and cooperate with respect to any required press release or other disclosure.\n-2-\n3. If the Receiving arty or any of its Representatives is requested (by subpoena, interrogatory, request for information or documents, civil investigate demand or\nother similar legal process) to disclose any of the Confidential Information to any other Person, the eceiving Party wil provide the Disclosing arty with prompt\nwritten notice of such request so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions\nof this Agreement. Thereafter, if the eceiving Party or any such Representative is nevertheless, in the opinion of its counsel, legally compelled to disclose the\nConfidential Information so requested or else stand liable for contempt or suffer other censure or penalty the R eceiving Party or that R epresentative may, without\nliability hereunder, disclose to such other erson only that portion of the Confidentia Information which the Receiving arty's counse advises is legally required\nto be disclosed. The R eceiving Party will, in addition, exercise its best efforts to preserve the confidentiality of the Confidential Information so "disclosed and\ncooperate with the Disclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the\nConfidential Information so disclosed.\n4. The Receiving Party will use at least the same degree of care to avoid the publication, disclosure, reproduction or other dissemination of the Confidential\nInformation as the Receiving arty employs with respect to its own valuable, proprietary information which it protects from unauthorized publication, disclosure,\nreproduction or other dissemination, but no less than a reasonable degree of care.\n5. The Receiving Party will not conduct any inquiries regarding the Confidential Information or a Possible Transaction with any of the Disclosing Party's\nstockholders, officers, members, managers, directors, employees, affiliates, suppliers, proposed business partners or customers or with others having business\nrelationships with the Disclosing Party except through R epresentatives of the Disclosing Party designated in writing by the Disclosing Party from time to time.\n6. AIl documents, drawings, records, data bases, programs and other physical media of expression incorporating or containing any Confidential Information\nwhich the Disclosing Party furnishes to the R eceiving Party are acknowledged to be the property of the Disclosing arty and will be promptly surrendered to the\nDisclosing arty upon the expiration or termination of the discussions between ABC and AeroG row or any business relationship which may be established\nbetween ABC and AeroGrov In addition, except to the extent the Receiving Party is advised by counsel that such action is prohibited by law, the Receiving Party\nwil also destroy all copies, summaries and notes thereof made by the Receiving Party and all analyses, compilations, studies, reports or other documents or\nmaterials which are prepared by the R eceiving arty or its advisors and which contain or reflect any Confidential Information which the Disclosing Party furnishes\nto the Receiving Party After such expiration or termination the eceiving Party will make no further use of any of these materials, and if so requested by the\nDisclosing arty, a duly authorized officer of the R eceiving Party will deliver to the Disclosing arty a certificate indicating that the requirements of the immediately\npreceding two sentences have been satisfied in full. The foregoing will apply regardless of the reasons for or circumstances surrounding such expiration or\ntermination.\n-3-\n7. Except as otherwise provided in any binding agreement between ABC and AeroGrow, all designs, methods, processes, developments, ideas and/or inventions\ndirectly related to, or usable in, the Disclosing arty's business which the R eceiving Party conceives, develops or reduces to practice, or causes to be conceived,\ndeveloped or reduced to practice, as a result of the Receiving Party's access to the Confidential Information wil be the Disclosing Party's sole property. U pon\ndemand and without any further consideration the Receiving P arty will confirm such ownership by executing assignments of all of the Receiving arty's rights\ntherein to the Disclosing Party.\n8.\nThe Receiving Party understands that the Disclosing Party makes no representations or warranties as to the accuracy or completeness of any Confidential\nInformation disclosed to the Receiving arty, and the Receiving Party agrees that neither the Disclosing Party nor any of its officers, directors, stockholders,\nmembers, managers, employees, agents or attorneys or controlling ersons within the meaning of Section 20 of the Securities xchange Act of 1934 will have\nany liability to the Receiving Party arising from the Receiving Party's use of the Confidentia Information, except if the Disclosing Party is held to be in breach\nof\nthis Agreement.\n9. The Receiving Party agrees that money damages will not be a sufficient remedy for any breach of this Agreement by the Receiving P arty or any of its\nRepresentatives and that in addition to all other remedies which may be available, the Disclosing arty wil be entitled to seek specific performance and injunctive\nor other equitable relied without bond, as a remedy for any such breach or threatened breach.\n10. To the fullest extent permitted by applicable law, rule or regulation, all of the covenants and agreements contained in this Agreement will survive the\ntermination of any discussions between ABC and AeroGrow or the termination or expiration of any business relationship which may hereafter be established\nbetween ABC and AeroGro and will also survive any definitive agreements entered into by ABC and AeroGrow, in each such case for a period of three (3)\nyears from the date hereof, unless and only to the extent that such definitive agreements expressly supersede the covenants and agreements contained herein;\nprovided, however, that the provisions of this Agreement relating to the preservation of the confidentiality of the Confidentia Information and each party's\nobligation to reimburse the other for all costs incurred by the other in connection with the successful enforcement of this Agreement as to such matters will, in any\nevent, survive for so long as the Confidential Information remains confidential.\n11. This Agreement supersedes all previous agreements, written or oral, relating to the above subject matter, and may be modified only by a written instrument\nduly executed by ABC and AeroGrow.\n12. In the event of any litigation between ABC and AeroG row in connection with this Agreement, the unsuccessful party to such litigation wil pay to the\nsuccessful party therein all reasonable costs and expenses, including but not limited to reasonable attorneys' fees incurred therein by such successful party,\nwhich costs, expenses and attorneys' fees shall be included as a part of any judgment rendered in such action in addition to any other relief to which the\nsuccessful party may be entitled.\n-4-\n13. All clauses and covenants contained in this Agreement are severable and in the event any of them is held to be invalid by any court, this Agreement will be\ninterpreted as if such invalid clauses and covenants were not contained herein.\n14. This Agreement will be construed according to the laws of the State of Colorado, without regard to its principles concerning conflicts of law. Any suit brought\nhereon must be brought in the state or federal courts sitting in the County of Denver, Colorado. ABC and AeroGrow hereby waive any claim or defense that such\nforum is not convenient or proper.\nACKNOWLEDGED AND AGREED\nAS OF\nACKNOWLEDGED AND AGREED\nAS OF\n20\n:\nAEROGROW INTERNATIONAL, INC.\nF. Wiedemann, VP\n-5-	EXHIBIT 10.18\nFORM OF NON-DISCLOSURE AGREEMENT\n____________________\n(Company Name), with its principal offices located at _____________ _____________________________________ (Company\nAddress) (herein after called "ABC"), is interested in entering into a business relationship (a "Possible Transaction") with AeroGrow International, Inc. , a Nevada\ncorporation, with its headquarters located at 900 28th Street, Suite 201, Boulder, CO 80303 (herein after called "AeroGrow"). In order to discuss and evaluate the\nPossible Transaction, (a) ABC has requested that disclose AeroGrow disclose to ABC certain confidential and proprietary data and other information of\nsubstantial value to AeroGrow, and (b) AeroGrow has requested that ABC disclose to AeroGrow certain confidential and proprietary data and other information of\nsubstantial value to ABC. This information may be in both oral and written form. Each of ABC and AeroGrow acknowledges that the other's disclosure of its\nconfidential and proprietary data and information to third parties will prejudice its ability to conduct its business successfully. Accordingly, each of ABC and\nAeroGrow agrees that its respective receipt and use of the other's confidential and proprietary data and information will be subject to the following terms and\nconditions:\n1. As used in this Agreement, the following terms have the following meanings:\n(a) "Affiliate" means (i) any other Person directly or indirectly (through one or more intermediaries) controlling, controlled by or under common control with that\nPerson; (ii) any other Person owning or controlling ten percent (10%) or more of the outstanding voting securities or beneficial interests of that Person; or (iii) an\nofficer, director, partner or member, or a member of the immediate family of an officer, director, partner or member, of that Person. For these purposes "control"\nmeans the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership\nor voting securities, by contract or otherwise.\n(b) "Confidential Information" means: (i) all information, data and materials disclosed or made available to the Receiving Party by the Disclosing Party in\nconnection with a Possible Transaction, including, without limitation, all trade secrets, inventions, drawings, file data, test data, documentation, diagrams,\nspecifications, know how, processes, formulas, models, flow charts, software in various stages of development, source codes, object codes, research and\ndevelopment procedures, test results, marketing techniques and materials, marketing and development plans, price lists, pricing policies, business plans,\ninformation relating to customers and/or suppliers' identities, characteristics and agreements, financial information and projection, and employee files and (ii) all\nanalyses, compilations, studies, reports, records or other documents or materials which contain, or are prepared on the basis of any such non-public information\nand which are either furnished to the Receiving Party or are prepared by or for the Receiving Party or any of its directors, officers, employees, members,\nmanagers, agents, advisors or Affiliates. Notwithstanding the above, "Confidential Information" does not include any information that (i) is or becomes public\nknowledge otherwise than by the Receiving Party's act or omission; or (ii) is or becomes available to the Receiving Party without obligation of confidence, of\nwhich the Receiving Party was or should have been aware, from a source (other than the Disclosing Party) having the legal right to disclose that information; or\n(iii) is already in the possession of the Receiving Party in documented form without an obligation of confidence, of which the Receiving Party was or should have\nbeen aware, and was not received by the Receiving Party in anticipation of a Possible Transaction or as a result of a prior relationship with the Disclosing Party.\n(c) "Disclosing Party" means the Person, either ABC or AeroGrow that is disclosing the Confidential Information to the Receiving Party.\n(d) "Person" means any entity, corporation, company, association, joint venture, partnership, trust, limited liability company, limited liability partnership, real\nestate investment trust, organization, individual (including personal representatives, executors and heirs of a deceased individual), nation, state, government\n(including agencies, departments, bureaus, boards, divisions and instrumentalities thereof), court, tribunal, mediator, arbitrator, trustee, receiver or liquidator.\n(e) "Receiving Party" means the Person, either ABC or AeroGrow, that is receiving the Confidential Information from the Disclosing Party.\n(f) "Representative" of a Person means any director, officer, employee, shareholder, partner, member, Affiliate, agent or advisor of that Person, including,\nwithout limitation, any attorney, accountant, consultant, banker or financial advisor of that Person.\n2. The Receiving Party will preserve as confidential all Confidential Information which the Receiving Party may obtain or prepare (a) during the course of\ndiscussions between ABC and AeroGrow concerning a Possible Transaction, (b) during the evaluation of a Possible Transaction and (c) during the course of any\nbusiness relationship which may be established between ABC and AeroGrow. Without the prior written consent of the Disclosing Party, which may be given or\nwithheld by the Disclosing Party in its sole and absolute discretion, the Receiving Party will not (a) disclose or demonstrate any Confidential Information to any\nother Person nor give any other Person access thereto, nor (b) use any Confidential Information except in evaluating a Possible Transaction, nor (c) disclose to\nany other Person either the fact that discussions or negotiations are taking place concerning a Possible Transaction, or the terms, conditions or status thereof or\nthe fact that Confidential Information is being made available to the Receiving Party; provided, however, that any such Confidential Information may be disclosed\nto those of the Receiving Party's Representatives who (i) need to know the same for the sole purpose of evaluating a Possible Transaction and (ii) agree to keep\nsuch Confidential Information confidential and to be bound by the terms of this Agreement to the same extent as if they were parties hereto. If so requested by the\nDisclosing Party, the Receiving Party will cause any such Representatives to execute this Agreement so as to be personally bound hereby. In any event, the\nReceiving Party will be responsible for any breach of this Agreement by any of its Representatives, and the Receiving Party will, at its sole expense, take all\nreasonable measures (including, but not limited to, court proceedings) to restrain its Representatives from any prohibited or unauthorized disclosure or use of the\nConfidential Information. Furthermore, no publicity release or announcement concerning the discussions between ABC and AeroGrow, this Agreement or a\nPossible Transaction will be issued, by either ABC or AeroGrow without the advance written approval of the form and substance thereof by the other. In the event\nthat any such publicity release or announcement is required by law (in the opinion of either party's counsel), ABC or AeroGrow will consult with each other in\nadvance and cooperate with respect to any required press release or other disclosure.\n-2-\n3. If the Receiving Party or any of its Representatives is requested (by subpoena, interrogatory, request for information or documents, civil investigate demand or\nother similar legal process) to disclose any of the Confidential Information to any other Person, the Receiving Party will provide the Disclosing Party with prompt\nwritten notice of such request so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions\nof this Agreement. Thereafter, if the Receiving Party or any such Representative is nevertheless, in the opinion of its counsel, legally compelled to disclose the\nConfidential Information so requested or else stand liable for contempt or suffer other censure or penalty, the Receiving Party or that Representative may, without\nliability hereunder, disclose to such other Person only that portion of the Confidential Information which the Receiving Party's counsel advises is legally required\nto be disclosed. The Receiving Party will, in addition, exercise its best efforts to preserve the confidentiality of the Confidential Information so "disclosed and\ncooperate with the Disclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the\nConfidential Information so disclosed.\n4. The Receiving Party will use at least the same degree of care to avoid the publication, disclosure, reproduction or other dissemination of the Confidential\nInformation as the Receiving Party employs with respect to its own valuable, proprietary information which it protects from unauthorized publication, disclosure,\nreproduction or other dissemination, but no less than a reasonable degree of care.\n5. The Receiving Party will not conduct any inquiries regarding the Confidential Information or a Possible Transaction with any of the Disclosing Party's\nstockholders, officers, members, managers, directors, employees, affiliates, suppliers, proposed business partners or customers or with others having business\nrelationships with the Disclosing Party except through Representatives of the Disclosing Party designated in writing by the Disclosing Party from time to time.\n6. All documents, drawings, records, data bases, programs and other physical media of expression incorporating or containing any Confidential Information\nwhich the Disclosing Party furnishes to the Receiving Party are acknowledged to be the property of the Disclosing Party and will be promptly surrendered to the\nDisclosing Party upon the expiration or termination of the discussions between ABC and AeroGrow or any business relationship which may be established\nbetween ABC and AeroGrow. In addition, except to the extent the Receiving Party is advised by counsel that such action is prohibited by law, the Receiving Party\nwill also destroy all copies, summaries and notes thereof made by the Receiving Party and all analyses, compilations, studies, reports or other documents or\nmaterials which are prepared by the Receiving Party or its advisors and which contain or reflect any Confidential Information which the Disclosing Party furnishes\nto the Receiving Party. After such expiration or termination the Receiving Party will make no further use of any of these materials, and if so requested by the\nDisclosing Party, a duly authorized officer of the Receiving Party will deliver to the Disclosing Party a certificate indicating that the requirements of the immediately\npreceding two sentences have been satisfied in full. The foregoing will apply regardless of the reasons for or circumstances surrounding such expiration or\ntermination.\n-3-\n7. Except as otherwise provided in any binding agreement between ABC and AeroGrow, all designs, methods, processes, developments, ideas and/or inventions\ndirectly related to, or usable in, the Disclosing Party's business which the Receiving Party conceives, develops or reduces to practice, or causes to be conceived,\ndeveloped or reduced to practice, as a result of the Receiving Party's access to the Confidential Information will be the Disclosing Party's sole property. Upon\ndemand and without any further consideration the Receiving Party will confirm such ownership by executing assignments of all of the Receiving Party's rights\ntherein to the Disclosing Party.\n8. The Receiving Party understands that the Disclosing Party makes no representations or warranties as to the accuracy or completeness of any Confidential\nInformation disclosed to the Receiving Party, and the Receiving Party agrees that neither the Disclosing Party nor any of its officers, directors, stockholders,\nmembers, managers, employees, agents or attorneys or controlling Persons within the meaning of Section 20 of the Securities Exchange Act of 1934 will have\nany liability to the Receiving Party arising from the Receiving Party's use of the Confidential Information, except if the Disclosing Party is held to be in breach of\nthis Agreement.\n9. The Receiving Party agrees that money damages will not be a sufficient remedy for any breach of this Agreement by the Receiving Party or any of its\nRepresentatives and that in addition to all other remedies which may be available, the Disclosing Party will be entitled to seek specific performance and injunctive\nor other equitable relied without bond, as a remedy for any such breach or threatened breach.\n10. To the fullest extent permitted by applicable law, rule or regulation, all of the covenants and agreements contained in this Agreement will survive the\ntermination of any discussions between ABC and AeroGrow or the termination or expiration of any business relationship which may hereafter be established\nbetween ABC and AeroGrow, and will also survive any definitive agreements entered into by ABC and AeroGrow, in each such case for a period of three (3)\nyears from the date hereof, unless and only to the extent that such definitive agreements expressly supersede the covenants and agreements contained herein;\nprovided, however, that the provisions of this Agreement relating to the preservation of the confidentiality of the Confidential Information and each party's\nobligation to reimburse the other for all costs incurred by the other in connection with the successful enforcement of this Agreement as to such matters will, in any\nevent, survive for so long as the Confidential Information remains confidential.\n11. This Agreement supersedes all previous agreements, written or oral, relating to the above subject matter, and may be modified only by a written instrument\nduly executed by ABC and AeroGrow.\n12. In the event of any litigation between ABC and AeroGrow in connection with this Agreement, the unsuccessful party to such litigation will pay to the\nsuccessful party therein all reasonable costs and expenses, including but not limited to reasonable attorneys' fees incurred therein by such successful party,\nwhich costs, expenses and attorneys' fees shall be included as a part of any judgment rendered in such action in addition to any other relief to which the\nsuccessful party may be entitled.\n-4-\n13. All clauses and covenants contained in this Agreement are severable and in the event any of them is held to be invalid by any court, this Agreement will be\ninterpreted as if such invalid clauses and covenants were not contained herein.\n14. This Agreement will be construed according to the laws of the State of Colorado, without regard to its principles concerning conflicts of law. Any suit brought\nhereon must be brought in the state or federal courts sitting in the County of Denver, Colorado. ABC and AeroGrow hereby waive any claim or defense that such\nforum is not convenient or proper.\nACKNOWLEDGED AND AGREED\nAS OF _______________:\nACKNOWLEDGED AND AGREED\nAS OF _______________ , 2 0__ __:\nAEROGROW INTERNATIONAL, INC .\nF. Wiedemann, VP\n-5-
+bf515f4c0d420674991aba8bdadc84f4.pdf	jurisdiction party	EXHIBIT 5.16\nFORM OF NONSOLICITATION AGREEMENT\n(See attached)\nEXHIBIT 5.16\nNON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nThis Non-Solicitation and Non-Disclosure Agreement (the “Agreement”), is made this\nday of\n, 2018, by and\namong GEORGE CVACK (the “Executive”), NORTHWEST INDIANA BANCORP (the “Holding Company”), and PEOPLES BANK SB (the\n“Bank”). The Holding Company, the Bank, and their affiliated entities are collectively referred to herein as “NWIN.”\nRECITALS\nWHEREAS, Executive previously served as the [●] of First Personal Bank or one or more of its affiliates (“FPB”), including First\nPersonal Financial Corp. (“First Personal”). First Personal and FPB are collectively referred to herein as the “First Personal\nEntities;” and\nWHEREAS, First Personal and the Holding Company have entered into an Agreement and Plan of Merger (the “Merger\nAgreement”) whereby First Personal will merge with and into the Holding Company (the “Merger”). The combined entities,\noperations, and assets of NWIN and the First Personal Entities after the Merger are referred to herein as the “Company;” and\nWHEREAS, the Executive will be an employee of the Bank for a period of time after the Merger, and may receive certain other\npayments or benefits as a result of the Merger; and\nWHEREAS, as a condition to its agreement to consummate the Merger under the terms of the Merger Agreement and the continued\nemployment of the Executive, NWIN has requested that the Executive agree to certain restrictions, covenants, and agreements, as set\nforth in this Agreement in order to protect the Company’s business interests and goodwill, as well as its confidential and proprietary\ninformation; and\nWHEREAS, the Executive, in consideration of the benefits of the Merger to the Executive, including but not limited to the continued\nemployment of the Executive, has agreed to execute and deliver this Agreement.\nNOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants, agreements, and obligations contained\nherein, and subject to and effective only upon the consummation of the Merger, and for other good and valuable consideration, the\nreceipt, legal adequacy and sufficiency of which are hereby acknowledged, the parties agree as follows:\nSection 1. Contingency. This Agreement shall be contingent on the consummation of the Merger. If the Merger is not\nconsummated for any reason, this Agreement will be null and void as of the date of the public announcement of the cancellation of\nthe intent to consummate the Merger.\nSection 2. Definitions.\nEXHIBIT 5.16\n(a) Confidential Information. For purposes of this Agreement, the term “Confidential Information” means any and all:\n(i) materials, records, data, documents, lists, writings, and information (whether in writing, printed, verbal, electronic,\ncomputerized, on disk or otherwise) relating or referring in any manner to the business, operations, affairs, financial condition, results\nof operation, cash flow, assets, liabilities, sales, revenues, income, estimates, projections, policies, strategies, techniques, methods,\nproducts, developments, suppliers, relationships, and/or customers of the First Personal Entities, NWIN, the Company, or any\naffiliate of any of them that are not generally known by the public at large and/or which provide the Company with a competitive\nadvantage;\n(ii) “trade secrets” of the First Personal Entities, NWIN, the Company, or any affiliate of any of them, as defined under Indiana\nlaw; and\n(iii) any and all copies, summaries, analyses, and extracts which relate or refer to or reflect any of the items set forth in (i) or (ii)\nabove. The Executive agrees that all Confidential Information is confidential and is and at all times will remain the property of\nNWIN.\nSection 3. Access to and Return of Confidential Information.\n(a) The Executive understands, acknowledges, and agrees that during the course of his employment with the Company he has\ngained or will gain information regarding, knowledge of, and familiarity with the Confidential Information of the Company and that\nif the Confidential Information was disclosed by the Executive, NWIN would suffer irreparable damage and harm. The Executive\nunderstands, acknowledges, and agrees that the Confidential Information derives substantial economic value from, among other\nreasons, not being known or readily ascertainable by proper means by others who could obtain economic value therefrom upon\ndisclosure. The Executive acknowledges and agrees that NWIN uses reasonable means to maintain the secrecy and confidentiality of\nthe Confidential Information.\n(b) The Executive covenants and agrees:\n(i) to keep all Confidential Information subject to NWIN’s custody and control and to promptly return to NWIN all Confidential\nInformation that is still in the Executive’s possession or control at the termination of the Executive’s employment with NWIN; and\n(ii) promptly upon termination of the Executive’s employment with NWIN, to return to NWIN, at NWIN’s principal office, all\nvehicles, equipment, computers, credit cards, and other property of the Company and to cease using any of the foregoing.\nSection 4. Restrictive Covenants.\n(a) Non-Solicitation. The Executive covenants that, during the Executive’s employment with NWIN and for a period of 18 months\nfollowing the date of termination of his employment with NWIN, the Executive shall not: (i) directly recruit any person who is an\nemployee of Peoples Bank; (ii) solicit, encourage, or induce any such employee to leave Peoples Bank’s employ; or (iii) solicit,\nencourage, or induce any customer of Peoples Bank to cease doing or reduce such customer’s level of business with Peoples Bank.\nEXHIBIT 5.16\n(b) Non-Disclosure. At all times during and after the termination of his employment, the Executive shall not (i) directly or\nindirectly disclose, provide, or discuss any Confidential Information with or to any person other than those directors, officers,\nemployees, representatives, and agents of NWIN who need to know such Confidential Information for a proper corporate purpose,\nand (ii) directly or indirectly use any Confidential Information (A) to compete against NWIN, or (B) for the Executive’s own benefit\nor for the benefit of any person or entity other than NWIN.\nSection 5. Periods of Noncompliance and Reasonableness of Periods. The restrictions and covenants contained in Section 4 shall\nbe deemed not to run during all periods of noncompliance, the intention of the parties hereto being to have such restrictions and\ncovenants apply during the term of this Agreement and for the full periods specified in Section 4. The parties hereto understand,\nacknowledge, and agree that the restrictions and covenants contained in Section 4 are reasonable in view of the nature of the business\nin which the Company is engaged, the Executive’s position with the Company and the Executive’s advantageous knowledge of and\nfamiliarity with the business, operations, affairs, employees, and customers of the Company.\nThe restrictions and covenants contained in Section 4 are essential terms and conditions to NWIN entering into this Agreement, and\nshall be construed as independent of any other provision in this Agreement. The existence of any claim or cause of action the\nExecutive has against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the\nenforcement by the Bank or the Holding Company of these covenants.\nNWIN’s obligation to pay any amounts otherwise payable to the Executive pursuant to this Agreement or any other agreement or\narrangement shall immediately terminate in the event that the Executive breaches any of the provisions of Section 4. Notwithstanding\nthe foregoing:\n(a) the covenants of the Executive set forth in Section 4 shall continue in full force and effect and be binding upon the Executive;\n(b) the Bank and the Holding Company shall each be entitled to the remedies specified in Section 6; and\n(c) the Bank and the Holding Company shall each be entitled to its damages, costs, and expenses (including, without limitation,\nreasonable attorneys’ fees and expenses) resulting from or relating to the Executive’s breach of any of the provisions of Section 4.\nSection 6. Remedies. The Executive agrees that NWIN shall suffer irreparable damage and injury and shall not have an adequate\nremedy at law in the event of any actual, threatened, or attempted breach by the Executive of any provision of Section 4.\nAccordingly, in the event of a breach or a threatened or attempted breach by the Executive of any provision of Section 4, in addition\nto all other remedies to which NWIN is entitled at law, in equity, or otherwise, it may be entitled to a temporary restraining order and\na permanent injunction or a\nEXHIBIT 5.16\ndecree of specific performance of any provision of Section 4. The foregoing remedies shall not be deemed to be the exclusive rights\nor remedies of NWIN for any breach of or noncompliance with this Agreement by the Executive but shall be in addition to all other\nrights and remedies available to it at law, in equity, or otherwise.\nSection 7. Severability. In case any one or more of the provisions (or any portion thereof) contained herein will, for any reason, be\nheld to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other\nprovision of this Agreement, but this Agreement shall be construed as if such invalid, illegal, or unenforceable provision or\nprovisions (or portion thereof) had never been contained herein. If any provision of this Agreement shall be determined by a court of\ncompetent jurisdiction to be unenforceable because of the provision’s scope, duration, or other factor, then such provision shall be\nconsidered divisible and the court making such determination shall have the power to reduce or limit (but not increase or make\ngreater) such scope, duration, or other factor or to reform (but not increase or make greater) such provision to make it enforceable to\nthe maximum extent permitted by law, and such provision shall then be enforceable against the appropriate party hereto in its\nreformed, reduced, or limited form; provided that, a provision shall be enforceable in its reformed, reduced, or limited form only in\nthe particular jurisdiction in which a court of competent jurisdiction makes such determination.\nSection 8. Effect of Headings. The descriptive headings of the Sections and, where applicable, subsections, of this Agreement are\ninserted for convenience and identification only and do not constitute a part of this Agreement for purposes of interpretation.\nSection 9. Controlling Law. Except to the extent superseded by the laws of the United States, the laws of the State of Indiana,\nwithout reference to the choice of law principles thereof, shall be controlling in all matters relating to this Agreement.\nSection 10. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an\noriginal, but all of which collectively shall constitute one and the same instrument.\n[Signature page follows]\nEXHIBIT 5.16\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written.\nPEOPLES BANK SB\nNORTHWEST INDIANA BANCORP\nBy:\nBy:\nBenjamin J. Bochnowski\nBenjamin J. Bochnowski\nChief Executive Officer\nChief Executive Officer\nEXECUTIVE\nGeorge Cvack\nEXHIBIT 5.16	EXHIBIT 5.16\nFORM OF NONSOLICITATION AGREEMENT\n(See attached)\nEXHIBIT 5.16\n \nNON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nThis Non-Solicitation and Non-Disclosure Agreement (the ”Agreement”), is made this day of , 2018, by and\namong GEORGE CVACK (the ”Executive"), NORTHWEST INDIANA BANCORP (the ”Holding Company”), and PEOPLES BANK SB (the\n”Bank”). The Holding Company, the Bank, and their affiliated entities are collectively referred to herein as ”NWIN.”\nRECITALS\nWHEREA S, Executive previously served as the [0] of First Personal Bank or one or more of its affiliates (”F PB"), including First\nPersonal Financial Corp. (”F irst Personal”). First Personal and FPB are collectively referred to herein as the ”F irst Personal\nE nlilies;" and\nWHEREA S, First Personal and the Holding Company have entered into an Agreement and Plan of Merger (the ”Merger\nAgreement”) whereby First Personal will merge with and into the Holding Company (the ”Merger"). The combined entities,\noperations, and assets of NWIN and the First Personal Entities after the Merger are referred to herein as the ”Company;" and\nWHEREA S, the Executive will be an employee of the Bank for a period of time after the Merger, and may receive certain other\npayments or benefits as a result of the Merger; and\nWHEREA S, as a condition to its agreement to consummate the Merger under the terms of the Merger A greement and the continued\nemployment of the Executive, NWIN has requested that the Executive agree to certain restrictions, covenants, and agreements, as set\nforth in this Agreement in order to protect the Company' s business interests and goodwill, as well as its confidential and proprietary\ninformation; and\nWHEREA S, the Executive, in consideration of the benefits of the Merger to the Executive, including but not limited to the continued\nemployment of the Executive, has agreed to execute and deliver this Agreement.\nNOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants, agreements, and obligations contained\nherein, and subject to and effective only upon the consummation of the Merger, and for other good and valuable consideration, the\nreceipt, legal adequacy and sufficiency of which are hereby acknowledged, the parties agree as follows:\nSection 1. Contingency. This Agreement shall be contingent on the consummation of the Merger. If the Merger is not\nconsummated for any reason, this A greement will be null and void as of the date of the public announcement of the cancellation of\nthe intent to consummate the Merger.\nSection 2. Definitions.\nEXHIBIT 5.16\n \n(a) C onfidential Information. For purposes of this A greement, the term ”C onfidential Information” means any and all:\n(i) materials, records, data, documents, lists, writings, and information (whether in writing, printed, verbal, electronic,\ncomputerized, on disk or otherwise) relating or referring in any manner to the business, operations, affairs, financial condition, results\nof operation, cash flow, assets, liabilities, sales, revenues, income, estimates, projections, policies, strategies, techniques, methods,\nproducts, developments, suppliers, relationships, and/or customers of the First Personal Entities, NWIN, the Company, or any\naffiliate of any of them that are not generally known by the public at large and/or which provide the Company with a competitive\nadvantage;\n(ii) ”trade secrets” of the First Personal Entities, NWIN, the Company, or any affiliate of any of them, as defined under Indiana\nlaw; and\n(iii) any and all copies, summaries, analyses, and extracts which relate or refer to or reflect any of the items set forth in (i) or (ii)\nabove. The Executive agrees that all Confidential Information is confidential and is and at all times will remain the property of\nNWIN.\nSection 3. Access to and Return of Confidential Information.\n(a) The Executive understands, acknowledges, and agrees that during the course of his employment with the Company he has\ngained or will gain information regarding, knowledge of, and familiarity with the Confidential Information of the Company and that\nif the Confidential Information was disclosed by the Executive, NWIN would suffer irreparable damage and harm. The Executive\nunderstands, acknowledges, and agrees that the Confidential Information derives substantial economic value from, among other\nreasons, not being known or readily ascertainable by proper means by others who could obtain economic value therefrom upon\ndisclosure. The Executive acknowledges and agrees that NWIN uses reasonable means to maintain the secrecy and confidentiality of\nthe Confidential Information.\n(b) The Executive covenants and agrees:\n(i) to keep all Confidential Information subject to NWIN’s custody and control and to promptly return to NWIN all Confidential\nInformation that is still in the Executive’s possession or control at the termination of the Executive’s employment with NWIN; and\n(ii) promptly upon termination of the Executive’s employment with NWIN, to return to NWIN, at NWIN’ s principal office, all\nvehicles, equipment, computers, credit cards, and other property of the Company and to cease using any of the foregoing.\nSection 4. Restrictive Covenants.\n(a) Non-Solicitation. The Executive covenants that, during the Executive’s employment with NWIN and for a period of 18 months\nfollowing the date of termination of his employment with NWIN, the Executive shall not: (i) directly recruit any person who is an\nemployee of Peoples Bank; (ii) solicit, encourage, or induce any such employee to leave Peoples Bank’s employ; or (iii) solicit,\nencourage, or induce any customer of Peoples Bank to cease doing or reduce such customer’ s level of business with Peoples Bank.\nEXHIBIT 5.16\n \n(b) Non-Disclosure. At all times during and after the termination of his employment, the Executive shall not (i) directly or\nindirectly disclose, provide, or discuss any Confidential Information with or to any person other than those directors, officers,\nemployees, representatives, and agents of NWIN who need to know such Confidential Information for a proper corporate purpose,\nand (ii) directly or indirectly use any Confidential Information (A) to compete against NWIN, or (B) for the Executive’s own benefit\nor for the benefit of any person or entity other than NWIN.\nSection 5. Periods of Noncompliance and Reasonableness of Periods. The restrictions and covenants contained in Section 4 shall\nbe deemed not to run during all periods of noncompliance, the intention of the parties hereto being to have such restrictions and\ncovenants apply during the term of this Agreement and for the full periods specified in Section 4. The parties hereto understand,\nacknowledge, and agree that the restrictions and covenants contained in Section 4 are reasonable in view of the nature of the business\nin which the Company is engaged, the Executive’s position with the Company and the Executive’s advantageous knowledge of and\nfamiliarity with the business, operations, affairs, employees, and customers of the Company.\nThe restrictions and covenants contained in Section 4 are essential terms and conditions to NWIN entering into this Agreement, and\nshall be construed as independent of any other provision in this Agreement. The existence of any claim or cause of action the\nExecutive has against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the\nenforcement by the Bank or the Holding Company of these covenants.\nNWIN’ s obligation to pay any amounts otherwise payable to the Executive pursuant to this Agreement or any other agreement or\narrangement shall immediately terminate in the event that the Executive breaches any of the provisions of Section 4. Notwithstanding\nthe foregoing:\n(a) the covenants of the Executive set forth in Section 4 shall continue in full force and effect and be binding upon the Executive;\n(b) the Bank and the Holding Company shall each be entitled to the remedies specified in Section 6; and\n(c) the Bank and the Holding Company shall each be entitled to its damages, costs, and expenses (including, without limitation,\nreasonable attorneys’ fees and expenses) resulting from or relating to the Executive’s breach of any of the provisions of Section 4.\nSection 6. Remedies. The Executive agrees that NWIN shall suffer irreparable damage and injury and shall not have an adequate\nremedy at law in the event of any actual, threatened, or attempted breach by the Executive of any provision of Section 4.\nAccordingly, in the event of a breach or a threatened or attempted breach by the Executive of any provision of Section 4, in addition\nto all other remedies to which NWIN is entitled at law, in equity, or otherwise, it may be entitled to a temporary restraining order and\na permanent injunction or a\nEXHIBIT 5.16\n \ndecree of specific performance of any provision of Section 4. The foregoing remedies shall not be deemed to be the exclusive rights\nor remedies of NWIN for any breach of or noncompliance with this Agreement by the Executive but shall be in addition to all other\nrights and remedies available to it at law, in equity, or otherwise.\nSection 7. Severahility. In case any one or more of the provisions (or any portion thereof) contained herein will, for any reason, be\nheld to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other\nprovision of this Agreement, but this Agreement shall be construed as if such invalid, illegal, or unenforceable provision or\nprovisions (or portion thereof) had never been contained herein. If any provision of this Agreement shall be determined by a court of\ncompetent jurisdiction to be unenforceable because of the provision' s scope, duration, or other factor, then such provision shall be\nconsidered divisible and the court making such determination shall have the power to reduce or limit (but not increase or make\ngreater) such scope, duration, or other factor or to reform (but not increase or make greater) such provision to make it enforceable to\nthe maximum extent permitted by law, and such provision shall then be enforceable against the appropriate party hereto in its\nreformed, reduced, or limited form; provided that, a provision shall be enforceable in its reformed, reduced, or limited form only in\nthe particular jurisdiction in which a court of competent jurisdiction makes such determination.\nSection 8. Effect of Headings. The descriptive headings of the Sections and, where applicable, subsections, of this Agreement are\ninserted for convenience and identification only and do not constitute a part of this Agreement for purposes of interpretation.\nSection 9. Controlling Law. Except to the extent superseded by the laws of the United States, the laws of the State of Indiana,\nwithout reference to the choice of law principles thereof, shall be controlling in all matters relating to this Agreement.\nSection 10. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an\noriginal, but all of which collectively shall constitute one and the same instrument.\n[Signature page follows]\nEXHIBIT 5.16\n \nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. PEOPLES BANK SB\nBy:\nBenjamin]. B ochnowski Chief Executive Officer\nEXECUTIVE\nG eorge CVBCK\nEXHIBIT 5.16\nNORTHWEST INDIANA BANCORP\nBy:\nB enj aInin J. B ochnowski\nChief Executive Officer	EXHIBIT 5.16\nFORM OF NONSOLICITATION AGREEMENT\n(See attached)\nExHIBIT 5.16\nNON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nThis Non-Solicitation and Non-Disclosure A greement (the "Agreement"), is made this day of\n2018, by and\namong GEORGE CVACK (the "Executive"), NORTHWEST INDIANA BANCoRP (the "Holding Company"), and PEOPLES BANK SB (the\n"Bank"). The Holding Company, the Bank, and their affiliated entities are collectively referred to herein as "NWIN."\nRECITALS\nWHEREAS, Executive previously served as the of First Personal Bank or one or more of its affiliates ("FPB"), including First\nPersonal Financial Corp. ("F irst Personal"). First Personal and FPB are collectively referred to herein as the "First Personal\nEntities;" and\nWHEREAS, First Personal and the Holding Company have entered into an Agreement and Plan of Merger (the "Merger\nAgreement") whereby First Personal will merge with and into the Holding Company (the "Merger"). The combined entities,\noperations, and assets of NWIN and the First Personal Entities after the Merger are referred to herein as the "Company;" and\nWHEREAS, the Executive will be an employee of the Bank for a period of time after the Merger, and may receive certain other\npayments or benefits as a result of the Merger; and\nWHEREAS, as a condition to its agreement to consummate the Merger under the terms of the Merger A greement and the continued\nemployment of the Executive, NWIN has requested that the Executive agree to certain restrictions, covenants, and agreements, as set\nforth in this greement in order to protect the Company's business interests and goodwill, as well as its confidential and proprietary\ninformation; and\nWHEREAS, the Executive, in consideration of the benefits of the Merger to the Executive, including but not limited to the continued\nemployment of the Executive, has agreed to execute and deliver this A greement.\nNOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants, agreements, and obligations contained\nherein, and subject to and effective only upon the consummation of the Merger, and for other good and valuable consideration, the\nreceipt legal adequacy and sufficiency of which are hereby acknowledged, the parties agree as follows:\nSection 1. Contingency. This A greement shall be contingent on the consummation of the Merger. If the Merger is not\nconsummated for any reason, this A greement will be null and void as of the date of the public announcement of the cancellation of\nthe intent to consummate the Merger.\nSection 2. Definitions.\nExHIBIT 5.16\n(a) Confidential Information. For purposes of this A greement, the term Confidential Information" means any and all:\n(i) materials, records, data, documents, lists, writings, and information (whether in writing, printed, verbal, electronic,\ncomputerized, on disk or otherwise) relating or referring in any manner to the business, operations, affairs, financial condition, results\nof operation, cash flow, assets, liabilities, sales, revenues, income, estimates, projections, policies, strategies, techniques, methods,\nproducts, developments, suppliers, relationships, and/or customers of the First Personal Entities, NWIN, the Company, or any\naffiliate of any of them that are not generally known by the public at large and/or which provide the Company with a competitive\nadvantage;\n(ii) "trade secrets" of the First Personal Entities, NWIN, the Company, or any affiliate of any of them, as defined under Indiana\nlaw; and\n(iii) any and all copies, summaries, analyses, and extracts which relate or refer to or reflect any of the items set forth in (i) or (ii)\nabove. The Executive agrees that all Confidential Information is confidential and is and at all times will remain the property of\nNWIN.\nSection 3. Access to and Return of Confidential Information.\n(a) The Executive understands, acknowledges, and agrees that during the course of his employment with the Company he has\ngained or will gain information regarding, knowledge of, and familiarity with the Confidential Information of the Company and that\nif the Confidential Information was disclosed by the Executive, NWIN would suffer irreparable damage and harm The Executive\nunderstands, acknowledges, and agrees that the Confidential Information derives substantial economic value from, among other\nreasons, not being known or readily ascertainable by proper means by others who could obtain economic value therefrom upon\ndisclosure. The Executive acknowledges and agrees that NWIN uses reasonable means to maintain the secrecy and confidentiality of\nthe Confidential Information.\n(b) The Executive covenants and agrees:\n(i) to keep all Confidential Information subject to NWIN's custody and control and to promptly return to NWIN all Confidential\nInformation that is still in the Executive's possession or control at the termination of the Executive's employment with NWIN; and\n(ii) promptly upon termination of the Executive's employment with NWIN, to return to NWIN, at NWIN's principal office, all\nvehicles, equipment computers, credit cards, and other property of the Company and to cease using any of the foregoing.\nSection 4. Restrictive Covenants.\n(a) Non-Solicitation. The Executive covenants that, during the Executive's employment with NWIN and for a period of 18 months\nfollowing the date of termination of his employment with NWIN, the Executive shall not: (i) directly recruit any person who is an\nemployee of Peoples Bank; (ii) solicit, encourage, or induce any such employee to leave Peoples Bank's employ; or (iii) solicit,\nencourage, or induce any customer of Peoples Bank to cease doing or reduce such customer's level of business with Peoples Bank.\nExHIBIT 5.16\n(b) Non-Disclosure. A t all times during and after the termination of his employment, the Executive shall not (i) directly or\nindirectly disclose, provide, or discuss any Confidential Information with or to any person other than those directors, officers,\nemployees, representatives, and agents of NWIN who need to know such Confidential Information for a proper corporate purpose,\nand (ii) directly or indirectly use any Confidential Information (A) to compete against NWIN, or (B) for the Executive's own benefit\nor for the benefit of any person or entity other than NWIN.\nSection 5. Periods of Noncompliance and Reasonableness of Periods. The restrictions and covenants contained in Section 4 shall\nbe deemed not to run during all periods of noncompliance, the intention of the parties hereto being to have such restrictions and\ncovenants apply during the term of this greement and for the full periods specified in Section 4. The parties hereto understand,\nacknowledge, and agree that the restrictions and covenants contained in Section 4 are reasonable in view of the nature of the business\nin which the Company is engaged, the Executive's position with the Company and the Executive's advantageous knowledge of and\nfamiliarity with the business, operations, affairs, employees, and customers of the Company.\nThe restrictions and covenants contained in Section 4 are essential terms and conditions to NWIN entering into this greement, and\nshall be construed as independent of any other provision in this Agreement The existence of any claim or cause of action the\nExecutive has against the Company, whether predicated on this A greement or otherwise, shall not constitute a defense to the\nenforcement by the Bank or the Holding Company of these covenants.\nNWIN's obligation to pay any amounts otherwise payable to the Executive pursuant to this A greement or any other agreement or\narrangement shall immediately terminate in the event that the Executive breaches any of the provisions of Section 4. Notwithstanding\nthe foregoing:\n(a) the covenants of the Executive set forth in Section 4 shall continue in full force and effect and be binding upon the Executive;\n(b)\nthe Bank and the Holding Company shall each be entitled to the remedies specified in Section 6; and\n(c) the Bank and the Holding Company shall each be entitled to its damages, costs, and expenses (including, without limitation,\nreasonable attorneys' fees and expenses) resulting from or relating to the Executive's breach of any of the provisions of Section 4.\nSection 6. Remedies. The Executive agrees that NWIN shall suffer irreparable damage and injury and shall not have an adequate\nremedy at law in the event of any actual, threatened, or attempted breach by the Executive of any provision of Section 4.\nA ccordingly, in the event of a breach or a threatened or attempted breach by the Executive of any provision of Section 4, in addition\nto all other remedies to which NWIN is entitled at law, in equity, or otherwise, it may be entitled to a temporary restraining order and\na permanent injunction or a\nExHIBIT 5.16\ndecree of specific performance of any provision of Section 4. The foregoing remedies shall not be deemed to be the exclusive rights\nor remedies of NWIN for any breach of or noncompliance with this A greement by the Executive but shall be in addition to all other\nrights and remedies available to it at law, in equity, or otherwise.\nSection 7. Severability. In case any one or more of the provisions (or any portion thereof) contained herein will, for any reason, be\nheld to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other\nprovision of this A greement, but this A greement shall be construed as if such invalid, illegal, or unenforceable provision or\nprovisions (or portion thereof) had never been contained herein. If any provision of this A greement shall be determined by a court of\ncompetent jurisdiction to be unenforceable because of the provision's scope, duration, or other factor, then such provision shall be\nconsidered divisible and the court making such determination shall have the power to reduce or limit (but not increase or make\ngreater) such scope, duration, or other factor or to reform (but not increase or make greater) such provision to make it enforceable to\nthe maximum extent permitted by law, and such provision shall then be enforceable against the appropriate party hereto in its\nreformed, reduced, or limited form; provided that, a provision shall be enforceable in its reformed, reduced, or limited form only in\nthe particular jurisdiction in which a court of competent jurisdiction makes such determination.\nSection 8. Effect of Headings. The descriptive headings of the Sections and, where applicable, subsections, of this greement are\ninserted for convenience and identification only and do not constitute a part of this A greement for purposes of interpretation.\nSection 9. Controlling Law. Except to the extent superseded by the laws of the United States, the laws of the State of Indiana,\nwithout reference to the choice of law principles thereof, shall be controlling in all matters relating to this A greement\nSection 10. Counterparts. This A greement may be executed in two or more counterparts, each of which shall be deemed an\noriginal, but all of which collectively shall constitute one and the same instrument.\n[Signature page follows]\nExHIBIT 5.16\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written.\nPEOPLES BANK SB\nNoRTHWEsT INDIANA BANCoRp\nBy:\nBy:\nBenjamin J. Bochnowski\nBenjamin J. Bochnowski\nChief Executive Officer\nChief Executive Officer\nEXECUTIVE\nGeorge Cvack\nExHIBIT 5.16	EXHIBIT 5.16\nFORM OF NONSOLICITATION AGREEMENT\n(See attached)\nEXHIBIT 5.16\nNON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nThis Non-Solicitation and Non-Disclosure Agreement (the “Agreement”), is made this\nday of\n, 2018, by and\namong GEORGE CVACK (the “Executive”), NORTHWEST INDIANA BANCORP (the “Holding Company”), and PEOPLES BANK SB (the\n“Bank”). The Holding Company, the Bank, and their affiliated entities are collectively referred to herein as “NWIN.”\nRECITALS\nWHEREAS, Executive previously served as the [●] of First Personal Bank or one or more of its affiliates (“FPB”), including First\nPersonal Financial Corp. (“First Personal”). First Personal and FPB are collectively referred to herein as the “First Personal\nEntities;” and\nWHEREAS, First Personal and the Holding Company have entered into an Agreement and Plan of Merger (the “Merger\nAgreement”) whereby First Personal will merge with and into the Holding Company (the “Merger”). The combined entities,\noperations, and assets of NWIN and the First Personal Entities after the Merger are referred to herein as the “Company;” and\nWHEREAS, the Executive will be an employee of the Bank for a period of time after the Merger, and may receive certain other\npayments or benefits as a result of the Merger; and\nWHEREAS, as a condition to its agreement to consummate the Merger under the terms of the Merger Agreement and the continued\nemployment of the Executive, NWIN has requested that the Executive agree to certain restrictions, covenants, and agreements, as set\nforth in this Agreement in order to protect the Company’s business interests and goodwill, as well as its confidential and proprietary\ninformation; and\nWHEREAS, the Executive, in consideration of the benefits of the Merger to the Executive, including but not limited to the continued\nemployment of the Executive, has agreed to execute and deliver this Agreement.\nNOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants, agreements, and obligations contained\nherein, and subject to and effective only upon the consummation of the Merger, and for other good and valuable consideration, the\nreceipt, legal adequacy and sufficiency of which are hereby acknowledged, the parties agree as follows:\nSection 1. Contingency. This Agreement shall be contingent on the consummation of the Merger. If the Merger is not\nconsummated for any reason, this Agreement will be null and void as of the date of the public announcement of the cancellation of\nthe intent to consummate the Merger.\nSection 2. Definitions.\nEXHIBIT 5.16\n(a) Confidential Information. For purposes of this Agreement, the term “Confidential Information” means any and all:\n(i) materials, records, data, documents, lists, writings, and information (whether in writing, printed, verbal, electronic,\ncomputerized, on disk or otherwise) relating or referring in any manner to the business, operations, affairs, financial condition, results\nof operation, cash flow, assets, liabilities, sales, revenues, income, estimates, projections, policies, strategies, techniques, methods,\nproducts, developments, suppliers, relationships, and/or customers of the First Personal Entities, NWIN, the Company, or any\naffiliate of any of them that are not generally known by the public at large and/or which provide the Company with a competitive\nadvantage;\n(ii) “trade secrets” of the First Personal Entities, NWIN, the Company, or any affiliate of any of them, as defined under Indiana\nlaw; and\n(iii) any and all copies, summaries, analyses, and extracts which relate or refer to or reflect any of the items set forth in (i) or (ii)\nabove. The Executive agrees that all Confidential Information is confidential and is and at all times will remain the property of\nNWIN.\nSection 3. Access to and Return of Confidential Information.\n(a) The Executive understands, acknowledges, and agrees that during the course of his employment with the Company he has\ngained or will gain information regarding, knowledge of, and familiarity with the Confidential Information of the Company and that\nif the Confidential Information was disclosed by the Executive, NWIN would suffer irreparable damage and harm. The Executive\nunderstands, acknowledges, and agrees that the Confidential Information derives substantial economic value from, among other\nreasons, not being known or readily ascertainable by proper means by others who could obtain economic value therefrom upon\ndisclosure. The Executive acknowledges and agrees that NWIN uses reasonable means to maintain the secrecy and confidentiality of\nthe Confidential Information.\n(b) The Executive covenants and agrees:\n(i) to keep all Confidential Information subject to NWIN’s custody and control and to promptly return to NWIN all Confidential\nInformation that is still in the Executive’s possession or control at the termination of the Executive’s employment with NWIN; and\n(ii) promptly upon termination of the Executive’s employment with NWIN, to return to NWIN, at NWIN’s principal office, all\nvehicles, equipment, computers, credit cards, and other property of the Company and to cease using any of the foregoing.\nSection 4. Restrictive Covenants.\n(a) Non-Solicitation. The Executive covenants that, during the Executive’s employment with NWIN and for a period of 18 months\nfollowing the date of termination of his employment with NWIN, the Executive shall not: (i) directly recruit any person who is an\nemployee of Peoples Bank; (ii) solicit, encourage, or induce any such employee to leave Peoples Bank’s employ; or (iii) solicit,\nencourage, or induce any customer of Peoples Bank to cease doing or reduce such customer’s level of business with Peoples Bank.\nEXHIBIT 5.16\n(b) Non-Disclosure. At all times during and after the termination of his employment, the Executive shall not (i) directly or\nindirectly disclose, provide, or discuss any Confidential Information with or to any person other than those directors, officers,\nemployees, representatives, and agents of NWIN who need to know such Confidential Information for a proper corporate purpose,\nand (ii) directly or indirectly use any Confidential Information (A) to compete against NWIN, or (B) for the Executive’s own benefit\nor for the benefit of any person or entity other than NWIN.\nSection 5. Periods of Noncompliance and Reasonableness of Periods. The restrictions and covenants contained in Section 4 shall\nbe deemed not to run during all periods of noncompliance, the intention of the parties hereto being to have such restrictions and\ncovenants apply during the term of this Agreement and for the full periods specified in Section 4. The parties hereto understand,\nacknowledge, and agree that the restrictions and covenants contained in Section 4 are reasonable in view of the nature of the business\nin which the Company is engaged, the Executive’s position with the Company and the Executive’s advantageous knowledge of and\nfamiliarity with the business, operations, affairs, employees, and customers of the Company.\nThe restrictions and covenants contained in Section 4 are essential terms and conditions to NWIN entering into this Agreement, and\nshall be construed as independent of any other provision in this Agreement. The existence of any claim or cause of action the\nExecutive has against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the\nenforcement by the Bank or the Holding Company of these covenants.\nNWIN’s obligation to pay any amounts otherwise payable to the Executive pursuant to this Agreement or any other agreement or\narrangement shall immediately terminate in the event that the Executive breaches any of the provisions of Section 4. Notwithstanding\nthe foregoing:\n(a) the covenants of the Executive set forth in Section 4 shall continue in full force and effect and be binding upon the Executive;\n(b) the Bank and the Holding Company shall each be entitled to the remedies specified in Section 6; and\n(c) the Bank and the Holding Company shall each be entitled to its damages, costs, and expenses (including, without limitation,\nreasonable attorneys’ fees and expenses) resulting from or relating to the Executive’s breach of any of the provisions of Section 4.\nSection 6. Remedies. The Executive agrees that NWIN shall suffer irreparable damage and injury and shall not have an adequate\nremedy at law in the event of any actual, threatened, or attempted breach by the Executive of any provision of Section 4.\nAccordingly, in the event of a breach or a threatened or attempted breach by the Executive of any provision of Section 4, in addition\nto all other remedies to which NWIN is entitled at law, in equity, or otherwise, it may be entitled to a temporary restraining order and\na permanent injunction or a\nEXHIBIT 5.16\ndecree of specific performance of any provision of Section 4. The foregoing remedies shall not be deemed to be the exclusive rights\nor remedies of NWIN for any breach of or noncompliance with this Agreement by the Executive but shall be in addition to all other\nrights and remedies available to it at law, in equity, or otherwise.\nSection 7. Severability. In case any one or more of the provisions (or any portion thereof) contained herein will, for any reason, be\nheld to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other\nprovision of this Agreement, but this Agreement shall be construed as if such invalid, illegal, or unenforceable provision or\nprovisions (or portion thereof) had never been contained herein. If any provision of this Agreement shall be determined by a court of\ncompetent jurisdiction to be unenforceable because of the provision’s scope, duration, or other factor, then such provision shall be\nconsidered divisible and the court making such determination shall have the power to reduce or limit (but not increase or make\ngreater) such scope, duration, or other factor or to reform (but not increase or make greater) such provision to make it enforceable to\nthe maximum extent permitted by law, and such provision shall then be enforceable against the appropriate party hereto in its\nreformed, reduced, or limited form; provided that, a provision shall be enforceable in its reformed, reduced, or limited form only in\nthe particular jurisdiction in which a court of competent jurisdiction makes such determination.\nSection 8. Effect of Headings. The descriptive headings of the Sections and, where applicable, subsections, of this Agreement are\ninserted for convenience and identification only and do not constitute a part of this Agreement for purposes of interpretation.\nSection 9. Controlling Law. Except to the extent superseded by the laws of the United States, the laws of the State of Indiana,\nwithout reference to the choice of law principles thereof, shall be controlling in all matters relating to this Agreement.\nSection 10. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an\noriginal, but all of which collectively shall constitute one and the same instrument.\n[Signature page follows]\nEXHIBIT 5.16\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written.\nPEOPLES BANK SB\nNORTHWEST INDIANA BANCORP\nBy:\nBy:\nBenjamin J. Bochnowski\nBenjamin J. Bochnowski\nChief Executive Officer\nChief Executive Officer\nEXECUTIVE\nGeorge Cvack\nEXHIBIT 5.16
+c0044bfb754cbc782dc5e8e6e1a7f891.pdf	jurisdiction party term	EX-10 .1 2 a06-10517 _1ex10d1.htm EX-10\nExhibit 10.1\nEXECUTIVE EMPLOYMENT, NON -COMPETE\nAND CONFIDENTIALITY AGREEMENT\nTHIS EXECUTIVE EMPLOYMENT, NON -COMPETE AND CONFIDENTIALITY AGREEMENT (“Agreement”) , is entered into as of the date set forth on the signature page by and between Richard A. Montoni (the\n“Executive”) and MAXIMUS, Inc., a Virginia corporation with its principal place of business in Reston, Virginia (the “Corporation”) with reference to the following:\nWHEREAS, the parties believe the Executive possesses the experience and capabilities to provide valuable service on behalf of the Corporation; and\nWHEREAS, the Corporation desires to employ the Executive as its Chief Executive Officer; and\nWHEREAS, the Executive desires to be employed by the Corporation at the salary, benefits and other terms and conditions specified herein.\nNOW, THEREFORE, in consideration of these premises and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:\n1.\nEmployment.\n1.1\nDuties. The Corporation hereby employs the Executive, and the Executive hereby accepts such employment, to\nserve as the Chief Executive Officer. The Executive hereby represents and warrants that he is in good health and capable of\nperforming the services required hereunder. The Executive shall perform such services and duties as are appropriate to such office or\ndelegated to the Executive by the Corporation’s Board of Directors (“Board”). During the term of this Agreement, the Executive shall\nbe a full-time employee of the Corporation and shall devote such time and attention to the discharge of his duties as may be necessary\nand appropriate to accomplish and complete such duties.\nThe Executive shall be nominated by the Board for election as a director and shall serve, without additional compensation, as a member of the Board, subject to his being so elected by the Corporation’s stockholders. The\nExecutive agrees to obtain the consent of the Board, which consent may be withheld in the Board’s sole discretion, before serving on the board of any other entity or organization.\n1.2\nCompensation.\n(a)\nBase Salary. As compensation for performance of his obligations hereunder, the Corporation shall pay the\nExecutive an annual salary of $600,000 (“Base Salary”), such Base Salary to be reviewed annually beginning on or about\nOctober 1, 2006.\n(b)\nYear-End Bonus. The Executive will participate in the Corporation’s annual bonus program, with any\nawards dependent on the performance of the Executive and the Corporation. The target cash bonus for the Executive will be\nseventy percent\n(70%) of annual Base Salary for accomplishing his annual goals; except the Corporation shall pay the Executive a bonus for fiscal year 2006 equal to $600,000. Commencing on the first day of employment, the Executive\nshall be permitted to draw against his 2006 bonus in the amount of $25,000 per month; provided, however, that the Executive shall repay the Corporation any and all such amounts should the Executive terminate his\nemployment with the Corporation before the earliest of (i) September 30, 2006, (ii) a “Change in Control” (as defined in the Income Continuity Plan), or (iii) his death or disability.\n(c)\nSigning Bonus. The Corporation shall pay the Executive a lump sum cash bonus of $300,000 upon his\nexecution of this Agreement; provided that, the Executive shall repay this bonus amount in full if he terminates employment\nwith the Corporation before the earliest of (i) the one-year anniversary of the Effective Date, (ii) a “Change in Control” (as\ndefined in the Income Continuity Plan), or (iii) his death or disability.\n(d)\nEquity Awards. On the Effective Date, the Corporation shall award the Executive 112,500 Restricted\nStock Units, under and subject to the terms of the MAXIMUS, Inc. 1997 Equity Incentive Plan (the “Equity Plan”), vesting\nat one-third on March 31, 2007, March 31, 2008 and March 31, 2009. Such award shall (i) provide for accelerated vesting in\nthe event of a Change in Control and (ii) have such other terms and conditions as are included in the standard MAXIMUS\nRestricted Stock Unit Agreement that will be subsequently executed by the parties. In addition, the Executive shall be\nentitled to future awards under the Equity Plan in the discretion of the Corporation’s Board of Directors, and shall also be\nentitled to participate in stock option and similar plans as currently exist or may be established by the Corporation from time\nto time. The Corporation agrees to proportionately adjust the Executive’s vested and unvested equity awards in the event the\nCorporation declares an extraordinary dividend during the term hereof. For these purposes, an “extraordinary dividend”\nwould be any distribution per share having a value in excess of ten percent (10%) of the average trading price of the\nCorporation’s common stock during the three-month period preceding such distribution.\n(e)\nIncome Continuity Program. On the Effective Date, the Executive shall become a Participant in the\nMAXIMUS, Inc. Income Continuity Program (the “Income Continuity Plan”).\n(f)\nVacation, Insurance, Expenses, Etc. The Executive shall be entitled to 20 days accrual paid vacation per\nyear, and such benefits, health, disability and life insurance and other benefits and expense reimbursements in a manner\nconsistent with the Corporation’s past practices and as are provided to executives at a similar level.\n(g)\nInsurance. The Corporation shall maintain the Executive as an insured party on all directors’ and officers’\ninsurance maintained by the Corporation for the benefit of its directors and officers on at least the same basis as all other\ncovered individuals and provide the Executive with at least the same corporate indemnification as its officers.\n(h)\nIndemnification. The Corporation shall reimburse the Executive for reasonable attorneys’ fees incurred in\nconnection with the review and negotiation of this\n2\nAgreement as well as the termination of his employment with his immediate predecessor employer. The Corporation shall indemnify the Executive for any losses or costs (including reasonable attorneys’ fees) arising from\na claim by his immediate predecessor employer that the Executive breached his employment agreement with them or otherwise wrongfully terminated his employment with them. The amount of such indemnification shall\nnot exceed $500,000. This provision shall survive the termination of Executive’s employment, except in the case of a Termination for Cause (as defined in the Income Continuity Plan).\n1.3\nTerm; Termination. The term of the employment agreement set forth in this Section 1 shall be for a period\ncommencing at the Effective Date and continuing for four (4) years thereafter (the “Scheduled Term”) provided that this Agreement\nshall terminate:\n(a)\nby mutual written consent of the parties;\n(b)\nupon Executive’s death or inability, by reason of physical or mental impairment, to perform substantially\nall of Executive’s duties as contemplated herein for a continuous period of 120 days or more; or\n(c)\nby the Corporation for Cause (as defined in the Income Continuity Plan).\nUpon any termination of employment under this Section 1.3, neither party shall have any obligation to the other pursuant to this Section 1, but such termination shall have no effect on the obligations of the parties under\nother provisions of this Agreement.\n“Effective Date” shall mean the date Executive commences work for the Corporation, which shall not be later than May 1, 2006.\n1.4\nSeverance. The parties agree that in the event the Corporation terminates the Executive’s employment without\nCause or the Executive terminates the employment for “Good Reason” (as defined in the Income Continuity Plan) prior to the\nexpiration of the Scheduled Term, the Executive shall be entitled to receive the greater of (i) Base Salary and benefits (including the\nbenefits specified in Section 1.2 above and the vesting of stock options and Restricted Stock Units) for the remainder of the\nScheduled Term or (ii) the severance benefits specified in the severance guidelines adopted by the Compensation Committee of the\nCorporation’s Board of Directors on March 21, 2006. If the Executive’s employment termination occurs in connection with a Change\nin Control, the Executive shall be entitled to receive such payments and benefits as provided under the Income Continuity Plan, and\nthis Section 1.4 shall not apply.\n1.5\nContinuation of Employment and Benefits. The Corporation shall treat the Executive as remaining in employment\nwith the Corporation continuously during the period beginning March 18, 2002 through the Effective Date, to the maximum extent\npermitted by law and the terms of the applicable plan documents. If any law or the terms of any plan document (or related agreement)\nprevents the Corporation from treating the Executive as remaining in employment with the Corporation continuously during this\nperiod, the Corporation shall pay or provide to the Executive an amount equal to the difference between (a) and (b), where (a) and\n(b) are determined as follows:\n3\n(a)\nThe payments or benefits the Executive would have received or been entitled to if the Executive had\nremained in employment with the Corporation continuously during the period beginning March 18, 2002 through the\nEffective Date; and\n(b)\nThe payments or benefits the Executive actually received or is entitled to under applicable law and the\nterms of the applicable plan documents;\n2.\nNon-Competition.\n2.1\nProhibited Activities.\n(a)\nThe Executive agrees that, during his employment with the Corporation and for a period of one (1) year\nafter the termination of such employment, the Executive will not engage in any Unethical Behavior which may adversely\naffect the Corporation. For the purpose of this Section 2.1, “Unethical Behavior” is defined as:\n(i)\nany attempt, successful or unsuccessful, by the Executive to divert any existing or pending\ncontracts or subcontracts from the Corporation to any other firm, whether or not affiliated with the Executive;\n(ii)\nany attempt, successful or unsuccessful, by the Executive, to influence clients of the Corporation\nor organizations with which the Corporation has an existing or pending contract or proposal to refrain from doing\nbusiness with the Corporation or to terminate existing business with the Corporation;\n(iii)\nany attempt, successful or unsuccessful, by the Executive to offer his services, or to influence\nany other employee of the Corporation to offer their services, to any firm to compete against the Corporation; or\n(iv)\nany attempt, successful or unsuccessful, by the Executive to employ or offer employment to, or\ncause any other person to employ or offer employment to any individual who was an employee of the Corporation\nat any time during the Executive’s last six months of employment with the Corporation.\n(b)\nThe Executive shall notify any new employer, partner, association or any other firm or corporation in\ncompetition with the Corporation with whom the Executive shall become associated in any capacity whatsoever of the\nprovisions of this Section 2 and the Executive agrees that the Corporation may give such notice to such firm, corporation or\nother person.\n2.2\nBusiness Opportunities; Conflicts of Interest; Other Employment and Activities of the Executive.\n(a)\nThe Executive agrees promptly to advise the Corporation of, and provide the Corporation with an\nopportunity to pursue, all business opportunities that reasonably relate to the present business conducted by the Corporation.\n(b)\nThe Executive, in his capacity as an employee of the Corporation, shall not engage in any business with\nany member of the Executive’s immediate family or with\n4\nany person or business entity in which the Executive or any member of the Executive’s immediate family has any ownership interest or financial interest, unless and until the Executive has first fully disclosed such interest\nto and received written consent from the Board of Directors. As used herein, the term “immediate family” means the Executive’s spouse, natural or adopted children, parents or siblings and the term “financial interest”\nmeans any relationship with such person or business entity that may monetarily benefit the Executive or member of the Executive’s immediate family, including any lending relationship or the guarantying of any\nobligations of such person or business entity by the Executive or member of his immediate family.\n(c)\nThe parties hereto agree that the Executive may, consistent with this Section 2.2, receive and retain\nspeaking fees, referral fees from business opportunities not accepted by the Corporation, and fees from outside business\nactivities and opportunities of the Executive consented to by the Board of Directors.\n3.\nConfidentiality. The Executive agrees that the Corporation’s books, records, files and all other non-public information\nrelating to the Corporation, its business, clients and employees are proprietary in nature and contain trade secrets and shall be held in\nstrict confidence by the Executive, and shall not, either during the term of this Agreement or after the termination hereof, be used by\nExecutive or disclosed, directly or indirectly, to any third party, except to the extent such use or disclosure is in furtherance of the\nCorporation’s business or required by any law, rule, regulation or other legal process. The trade secrets or other proprietary or\nconfidential information referred to in the prior sentence includes, without limitation, all proposals to clients or potential clients,\ncontracts, client or potential client lists, fee policies, financial information, administration or marketing practices or procedures and\nall other information regarding the business of the Corporation and its clients not generally known to the public.\n4.\nMiscellaneous.\n4.1\nNotices. All notices, requests, demands or other communications provided for in this Agreement shall be in\nwriting and shall be delivered by hand, sent prepaid by overnight delivery service or sent by the United States mail, certified, postage\nprepaid, return receipt request, to the following:\nIf to the Corporation:\nMAXIMUS, Inc.\n11419 Sunset Hills Road\nReston, Virginia 20190\nAttention: General Counsel\n5\nIf to the Executive:\nRichard A. Montoni\n9317 Morison Lane\nGreat Falls, Virginia 22066\nAny notice, request, demand or other communication delivered or sent in the foregoing manner shall be deemed given or made (as the case may be) upon the earliest of (i) the date it is actually received, (ii) the business-day after the day\non which it is delivered by hand, (iii) the business day after the day on which it is properly delivered to Federal Express (or a comparable overnight delivery service), or (iv) the third business day after the date on which it is deposited in\nthe United States mail. Either party may change its address by notifying the other party of the new address in any manner permitted by this paragraph.\n4.2\nRemedies. The parties agree and acknowledge that any violation by the Executive of the terms hereof may result in\nirreparable injury and damage to the Corporation or its clients, which may not adequately be compensable in monetary damages, that\nthe Corporation will have no adequate remedy at law therefor, and that the Corporation may obtain such preliminary, temporary or\npermanent mandatory or restraining injunctions, orders or decrees as may be necessary to protect it against, or on account of, any\nbreach of the provisions contained in this Agreement.\n4.3\nNo Obligation of Continued Employment. The Executive understands that this Agreement does not create an\nobligation on the part of the Corporation to continue the Executive’s employment with the Corporation after the expiration or\ntermination of this Agreement.\n4.4\nBenefit; Assignment. This Agreement shall bind and inure to the benefit of the parties and their respective personal\nrepresentatives, heirs, successors and assigns, provided this Agreement may not be assigned by either party without the consent of the\nother, except that the Corporation may assign this Agreement in connection with the merger, consolidation or sale of all or\nsubstantially all of its business or assets.\n4.5\nEntire Agreement. This Agreement supersedes all prior agreements, written or oral, with respect to the subject\nmatter of this Agreement.\n4.6\nSeverability. In the event that any one or more of the provisions contained herein shall be held to be invalid,\nillegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this\nAgreement, and all other provisions shall remain in full force and effect. If any of the provisions of this Agreement is held to be\nexcessively broad, it shall be reformed and construed by limiting and reducing it so as to be enforceable to the maximum extent\npermitted by law.\n4.7\nWaivers. No delay or omission by the Corporation in exercising any right under this Agreement will operate as a\nwaiver of that or any other right. A waiver or consent given by the Corporation on any occasion is effective only in that instance and\nwill not be construed as a bar to or waiver of any right on any other occasion.\n6\n4.8\nCaptions. The captions of the various sections and paragraphs of this Agreement have been inserted only for the\npurpose of convenience; such captions are not a part of this Agreement and shall not be deemed in any manner to modify, explain,\nenlarge or restrict any of the provisions of this Agreement.\n4.9\nGoverning Law and Jurisdiction. This Agreement shall in all events and for all purposes be governed by, and\nconstrued in accordance with, the laws of the Commonwealth of Virginia. Any action or proceeding against the parties relating in any\nway to this Agreement must be brought and enforced in the courts of Fairfax County, Virginia or the Northern District of Virginia,\nand the parties irrevocably submit to the jurisdiction of such courts in respect of any such action or proceeding.\n4.10\nAmendments. No changes to this Agreement shall be binding unless in writing and signed by both the parties.\n4.11\nCounterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original,\nand all such counterparts shall constitute one instrument.\nTHE EXECUTIVE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND THE EXECUTIVE UNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. THE EXECUTIVE\nUNDERSTANDS THAT THIS AGREEMENT MAY AFFECT THE EXECUTIVE’S RIGHT TO ACCEPT EMPLOYMENT WITH OTHER COMPANIES SUBSEQUENT TO THE EXECUTIVE’S EMPLOYMENT\nWITH THE CORPORATION.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement effective as of the date first above written.\nEXECUTIVE\nMAXIMUS, Inc.\nBy\nRichard A. Montoni\nDate\nTitle\n7	EX-10.l 2 a06-10517_leX10dl.htm EX-lO\nExhibithJ\nEXECUTIVE EMPLOYMENT, NON-COMPETE\nAND CONFIDENTIALITY AGREEMENT\nTHIS EXECUTIVE EMPLOY MENT, NO N-COMPETE AND CONFIDENTIALITY AGREEMENT ("Agreement"), is entered into as of the date set forth on the signature page by and between Richard A, Montoni (the\n"Executive”) and MAX IMUS, Inc., a Virginia corporation with its principal place of business in Reston, Virginia (the ”Corporation”) with reference to the following:\nWHEREAS, the parties believe the Executive possesses the experience and capabilities to provide valuable service on behalf of the Corporation; and\nWHEREAS, the Corporation desires to employ the Executive as its Chief Executive Officer; and\nWHEREAS, the Executive desires to be employed by the Corporation at the salary, benefits and other terms and conditions specified herein,\nNOW, THEREFORE, in consideration of these premises and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:\n1. Employment.\n1.1 Du_ties. The Corporation hereby employs the Executive, and the Executive hereby accepts such employment, to\nserve as the Chief Executive Officer. The Executive hereby represents and warrants that he is in good health and capable of\nperforming the services required hereunder. The Executive shall perform such services and duties as are appropriate to such office or\ndelegated to the Executive by the Corporation’ 5 Board of Directors (”Board”). During the term of this Agreement, the Executive shall\nbe a full-time employee of the Corporation and shall devote such time and attention to the discharge of his duties as may be necessary\nand appropriate to accomplish and complete such duties.\nThe Executive shall be nominated by the Board for election as a director and shall serve, without additional compensation, as a member of the Board, subject to his being so elected by the Corporation's stockholders, The\nExecutive agrees to obtain the consent of the Board, which consent may be withheld in the Board's sole discretion, before serving on the board of any other entity or organization,\n12 Compensation.\n(a) Base Salary. As compensation for performance of his obligations hereunder, the Corporation shall pay the\nExecutive an annual salary of $600,000 (”Base Salary”), such Base Salary to be reviewed annually beginning on or about\nOctober 1, 2006.\n111) Y ear-End Bonus. The Executive Will participate in the Corporation’ 5 annual bonus program, with any\nawards dependent on the performance of the Executive and the Corporation. The target cash bonus for the Executive Will be\nseventy percent\n \n(70%) of annual Base Salary for accomplishing his annual goals,- except the Corporation shall pay the Executive a bonus for fiscal year 2006 equal to $600,000. Commencing on the first day of employment, the Executive\nshall be permitted to draw against his 2006 bonus in the amount of $25,000 per month; provided, however, that the Executive shall repay the Corporation any and all such amounts should the Executive terminate his\nemployment with the Corporation before the earliest of (i) September 30, 2006, (ii) a "Change in Control" (as defined in the Income Continuity Plan), or (iii) his death or disability.\n(c) Signing Bonus. The Corporation shall pay the Executive a lump sum cash bonus of $300,000 upon his\nexecution of this Agreement; provided that, the Executive shall repay this bonus amount in full if he terminates employment\nwith the Corporation before the earliest of (i) the one-year anniversary of the Effective Date, (ii) a ”Change in Control" (as\ndefined in the Income Continuity Plan), or (iii) his death or disability.\n11) Eguity Awards. On the Effective Date, the Corporation shall award the Executive 112,500 Restricted\nStock Units, under and subject to the terms of the MAXIMUS, Inc. 1997 Equity Incentive Plan (the ”Equity Plan”), vesting\nat onethird on March 31, 2007, March 31, 2008 and March 31, 2009. Such award shall (i) provide for accelerated vesting in\nthe event of a Change in Control and (ii) have such other terms and conditions as are included in the standard MAX IMUS\nRestricted Stock Unit Agreement that will be subsequently executed by the parties. In addition, the Executive shall be\nentitled to future awards under the Equity Plan in the discretion of the Corporation’s Board of Directors, and shall also be\nentitled to participate in stock option and similar plans as currently exist or may be established by the Corporation from time\nto time. The Corporation agrees to proportionately adjust the Executive’s vested and unvested equity awards in the event the\nCorporation declares an extraordinary dividend during the term hereof. For these purposes, an ”extraordinary dividend”\nwould be any distribution per share having a value in excess of ten percent (10%) of the average trading price of the\nCorporation’s common stock during the threemonth period preceding such distribution.\n(e) Income Continuity Program. On the Effective Date, the Executive shall become a Participant in the\nMAXIMUS, Inc. Income Continuity Program (the ”Income Continuity Plan”).\n(f) Vacation, Insurance, Expenses, Etc. The Executive shall be entitled to 20 days accrual paid vacation per\nyear, and such benefits, health, disability and life insurance and other benefits and expense reimbursements in a manner\nconsistent with the Corporation’s past practices and as are provided to executives at a similar level.\n(g) Insurance. The Corporation shall maintain the Executive as an insured party on all directors’ and officers’\ninsurance maintained by the Corporation for the benefit of its directors and officers on at least the same basis as all other\ncovered individuals and provide the Executive with at least the same corporate indemnification as its officers.\n(h) Indemnification. The Corporation shall reimburse the Executive for reasonable attorneys’ fees incurred in\nconnection with the review and negotiation of this\nAgreement as well as the termination of his employment with his immediate predecessor employer. The Corporation shall indemnify the Executive for any losses or costs (including reasonable attorneys' fees) arising from\na claim by his immediate predecessor employer that the Executive breached his employment agreement with them or otherwise wrongfully terminated his employment with them. The amount of such indemnification shall\nnot exceed $500,000. This provision shall survive the termination of Executive’s employment, except in the case of a Termination for Cause (as defined in the Income Continuity Plan).\n1.3 Term; Termination. The term of the employment agreement set forth in this Section 1 shall be for a period\ncommencing at the Effective Date and continuing for four (4) years thereafter (the ”Scheduled Term”) provided that this Agreement\nshall terminate:\n(a) by mutual written consent of the parties;\n(b) upon Executive’s death or inability, by reason of physical or mental impairment, to perform substantially\nall of Executive’s duties as contemplated herein for a continuous period of 120 days or more; or\n(a by the Corporation for Cause (as defined in the Income Continuity Plan).\nUpon any termination of employment under this Section 1.3, neither party shall have any obligation to the other pursuant to this Section 1, but such termination shall have no effect on the obligations of the parties under\nother provisions of this A greement.\n"Effective Date" shall mean the date Executive commences work for the Corporation, which shall not be later than May 1, 2006.\n1.4 Severance. The parties agree that in the event the Corporation terminates the Executive’s employment without\nCause or the Executive terminates the employment for ”Good Reason” (as defined in the Income Continuity Plan) prior to the\nexpiration of the Scheduled Term, the Executive shall be entitled to receive the greater of (1) Base Salary and benefits (including the\nbenefits specified in Section 1.2 above and the vesting of stock options and Restricted Stock Units) for the remainder of the\nScheduled Term or (ii) the severance benefits specified in the severance guidelines adopted by the Compensation Committee of the\nCorporation’s Board of Directors on March 21, 2006. If the Executive’s employment termination occurs in connection with a Change\nin Control, the Executive shall be entitled to receive such payments and benefits as provided under the Income Continuity Plan, and\nthis Section 1.4 shall not apply.\n1.5 Continuation of Employment and Benefits. The Corporation shall treat the Executive as remaining in employment\nwith the Corporation continuously during the period beginning March 18, 2002 through the Effective Date, to the maximum extent\npermitted by law and the terms of the applicable plan documents. If any law or the terms of any plan document (or related agreement)\nprevents the Corporation from treating the Executive as remaining in employment with the Corporation continuously during this\nperiod, the Corporation shall pay or provide to the Executive an amount equal to the difference between (a) and (b), where (a) and\n(b) are determined as follows:\n(a) The payments or benefits the Executive would have received or been entitled to if the Executive had\nremained in employment with the Corporation continuously during the period beginning March 18, 2002 through the\nEffective Date; and\n(h) The payments or benefits the Executive actually received or is entitled to under applicable law and the\nterms of the applicable plan documents;\n2. Non-Competition.\n2.1 Prohibited A ctivities.\n(a) The Executive agrees that, during his employment with the Corporation and for a period of one (1) year\nafter the termination of such employment, the Executive will not engage in any Unethical Behavior which may adversely\naffect the Corporation. For the purpose of this Section 2.1, ”Unethical Behavior" is defined as:\n(1) any attempt, successful or unsuccessful, by the Executive to divert any existing or pending\ncontracts or subcontracts from the Corporation to any other firm, whether or not affiliated with the Executive;\n(in any attempt, successful or unsuccessful, by the Executive, to influence clients of the Corporation\nor organizations with which the Corporation has an existing or pending contract or proposal to refrain from doing\nbusiness with the Corporation or to terminate existing business with the Corporation;\n(iii) any attempt, successful or unsuccessful, by the Executive to offer his services, or to influence\nany other employee of the Corporation to offer their services, to any firm to compete against the Corporation; or\n(m any attempt, successful or unsuccessful, by the Executive to employ or offer employment to, or\ncause any other person to employ or offer employment to any individual who was an employee of the Corporation\nat any time during the Executives last six months of employment with the Corporation.\n(h) The Executive shall notify any new employer, partner, association or any other firm or corporation in\ncompetition with the Corporation with whom the Executive shall become associated in any capacity whatsoever of the\nprovisions of this Section 2 and the Executive agrees that the Corporation may give such notice to such firm, corporation or\nother person.\n2.2 Business Opportunities; Conflicts of Interest; Other Employment and Activities of the Executive.\n(a) The Executive agrees promptly to advise the Corporation of, and provide the Corporation with an\nopportunity to pursue, all business opportunities that reasonably relate to the present business conducted by the Corporation.\n(h) The Executive, in his capacity as an employee of the Corporation, shall not engage in any business With\nany member of the Executive’ s immediate family or with\n \nany person or business entity in which the Executive or any member of the Executive' s immediate family has any ownership interest or financial interest, unless and until the Executive has first fully disclosed such interest\nto and received written consent from the Board of Directors As used herein, the term ”immediate family" means the Executive's spouse, natural or adopted children, parents or siblings and the term "financial interest"\nmeans any relationship with such person or business entity that may monetarily benefit the Executive or member of the Executive’s immediate family, including any lending relationship or the guarantying of any\nobligations of such person or business entity by the Executive or member of his immediate family.\n(a The parties hereto agree that the Executive may, consistent With this Section 2.2, receive and retain\nspeaking fees, referral fees from business opportunities not accepted by the Corporation, and fees from outside business\nactivities and opportunities of the Executive consented to by the Board of Directors.\n3. Confidentiality. The Executive agrees that the Corporation’s books, records, files and all other non-public information\nrelating to the Corporation, its business, clients and employees are proprietary in nature and contain trade secrets and shall be held in\nstrict confidence by the Executive, and shall not, either during the term of this Agreement or after the termination hereof, be used by\nExecutive or disclosed, directly or indirectly, to any third party, except to the extent such use or disclosure is in furtherance of the\nCorporation’ s business or required by any law, rule, regulation or other legal process. The trade secrets or other proprietary or\nconfidential information referred to in the prior sentence includes, Without limitation, all proposals to clients or potential clients,\ncontracts, client or potential client lists, fee policies, financial information, administration or marketing practices or procedures and\nall other information regarding the business of the Corporation and its clients not generally known to the public.\n4. Miscellaneous.\n4.4 Notices. All notices, requests, demands or other communications provided for in this Agreement shall be in\nwriting and shall be delivered by hand, sent prepaid by overnight delivery service or sent by the United States mail, certified, postage\nprepaid, return receipt request, to the following:\nIf to the Corporation:\nMAXIMUS, Inc.\n11419 Sunset Hills Road\nReston, Virginia 20190\nAttention: General Counsel\n \nIf to the Executive:\nRichard A. Montoni\n9317 Morison Lane\nGreat Falls, Virginia 22066\nAny notice, request, demand or other communication delivered or sent in the foregoing manner shall be deemed given or made (as the case may be) upon the earliest of (i) the date it is actually received, (ii) the business-day after the day\non which it is delivered by hand, (iii) the business day after the day on which it is properly delivered to Federal Express (or a comparable overnight delivery service), or (iv) the third business day after the date on which it is deposited in\nthe United Smtes mail. Either party may change its address by notifying the other party of the new address in any manner permitted by this paragraph.\n4.2 Remedies. The parties agree and acknowledge that any violation by the Executive of the terms hereof may result in\nirreparable injury and damage to the Corporation or its clients, Which may not adequately be compensable in monetary damages, that\nthe Corporation Will have no adequate remedy at law therefor, and that the Corporation may obtain such preliminary, temporary or\npermanent mandatory or restraining injunctions, orders or decrees as may be necessary to protect it against, or on account of, any\nbreach of the provisions contained in this Agreement.\n4.3 No Obligation of Continued Employment. The Executive understands that this Agreement does not create an\nobligation on the part of the Corporation to continue the Executive’ s employment with the Corporation after the expiration or\ntermination of this A greement.\n4.4 Benefit; Assignment. This Agreement shall bind and inure to the benefit of the parties and their respective personal\nrepresentatives, heirs, successors and assigns, provided this Agreement may not be assigned by either party without the consent of the\nother, except that the Corporation may assign this Agreement in connection with the merger, consolidation or sale of all or\nsubstantially all of its business or assets.\n4.5 Entire A greement. This A greement supersedes all prior agreements, written or oral, with respect to the subject\nmatter of this A greement.\n4.6 Severabilitgy. In the event that any one or more of the provisions contained herein shall be held to be invalid,\nillegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this\nAgreement, and all other provisions shall remain in full force and effect. If any of the provisions of this Agreement is held to be\nexcessively broad, it shall be reformed and construed by limiting and reducing it so as to be enforceable to the maximum extent\npermitted by law.\n4.7 Waivers. No delay or omission by the Corporation in exercising any right under this Agreement will operate as a\nwaiver of that or any other right. A waiver or consent given by the Corporation on any occasion is effective only in that instance and\nwill not be construed as a bar to or waiver of any right on any other occasion.\n \n4.3 Captions. The captions of the various sections and paragraphs of this Agreement have been inserted only for the\npurpose of convenience; such captions are not a part of this Agreement and shall not be deemed in any manner to modify, explain,\nenlarge or restrict any of the provisions of this Agreement.\n4.9 Governing Law and urisdiction. This A greement shall in all events and for all purposes be governed by, and\nconstrued in accordance with, the laws of the Commonwealth of Virginia. Any action or proceeding against the parties relating in any\nway to this Agreement must be brought and enforced in the courts of Fairfax County, Virginia or the Northern District of Virginia,\nand the parties irrevocably submit to the jurisdiction of such courts in respect of any such action or proceeding.\n4.10 Amendments. No changes to this Agreement shall be binding unless in writing and signed by both the parties.\n4.11 Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original,\nand all such counterparts shall constitute one instrument.\nTHE EXECUTIVE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND THE EXECUTIVE UNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. THE EXECUTIVE\nUNDERSTANDS THAT THIS AGREEMENT MAY AFFECT THE EXECUTIVE'S RIGHT TO ACCEPT EMPLOYMENT WITH OTHER COMPANIES SUBSEQUENT TO THE EXECUTIVE’S EMPLOYMENT\nWITH THE CORPORATION.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement effective as of the date first above written.\nEXECUTIVE MAXIMUS, Inc.\nBY\n1C . on Onl\nDate Title	EX-10.1 2a06-10517 1ex10d1.htm EX-10\nExhibit 10.1\nEXECUTIVE EMPLOYMENT, NON-COMPETE\nAND CONFIDENTIALITY AGREEMENT\nTHIS EXECUTIVE EMPLOY MENT, NON-COMPETE AND CONFIDENTIALITY AGREEMENT ("Agreement"), is entered into as of the date set forth on the signature page by and between Richard A. Montoni (the\n"Executive") and MAXIMUS, Inc., a Virginia corporation with its principal place of business in Reston, Virginia (the "Corporation") with reference to the following:\nWHEREAS, the parties believe the Executive possesses the experience and capabilities to provide valuable service on behalf of the Corporation; and\nWHEREAS, the Corporation desires to employ the Executive as its Chief Executive Officer; and\nWHEREAS, the Executive desires to be employed by the Corporation at the salary, benefits and other terms and conditions specified herein.\nNOW THEREFORE in consideration of these premises and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:\n1.\nEmployment\n1.1\nDuties. The Corporation hereby employs the Executive, and the Executive hereby accepts such employment, to\nserve as the Chief Executive Officer. The Executive hereby represents and warrants that he is in good health and capable of\nperforming the services required hereunder. The Executive shall perform such services and duties as are appropriate to such office or\ndelegated to the Executive by the Corporation's Board of Directors ("Board"). During the term of this greement, the Executive shall\nbe a full-time employee of the Corporation and shall devote such time and attention to the discharge of his duties as may be necessary\nand appropriate to accomplish and complete such duties.\nThe Executive shall be nominated by the Board for election as a director and shall serve, without additional compensation, as a member of the Board, subject to his being so elected by the Corporation's stockholders. The\nExecutive agrees to obtain the consent of the Board, which consent may be withheld in the Board's sole discretion, before serving on the board of any other entity or organization\n1.2\nCompensation.\n(a)\nBase Salary. As compensation for performance of his obligations hereunder, the Corporation shall pay the\nExecutive an annual salary of $600,000 ("Base Salary"), such Base Salary to be reviewed annually beginning on or about\nOctober 1, 2006.\n(b)\nYear-End Bonus. The Executive will participate in the Corporation's annual bonus program, with any\nawards dependent on the performance of the Executive and the Corporation. The target cash bonus for the Executive will be\nseventy percent\n(70%) of annual Base Salary for accomplishing his annual goals; except the Corporation shall pay the Executive a bonus for fiscal year 2006 equal to $600,000. Commencing on the first day of employment, the\nExecutive\nshall be permitted to draw against his 2006 bonus in the amount of $25,000 per month; provided however, that the Executive shall repay the Corporation any and all such amounts should the Executive terminate his\nemployment with the Corporation before the earliest of (i) September 30, 2006, (ii) a "Change in Control" (as defined in the Income Continuity Plan), or (iii) his death or disability.\n(c)\nSigning Bonus. The Corporation shall pay the Executive a lump sum cash bonus of $300,000 upon his\nexecution of this A greement; provided that the Executive shall repay this bonus amount in full if he terminates employment\nwith the Corporation before the earliest of (i) the one-year anniversary of the Effective Date, (ii) a "Change in Control" (as\ndefined in the Income Continuity Plan), or (iii) his death or disability.\n(d)\nEquity Awards. On the Effective Date, the Corporation shall award the Executive 112,500 Restricted\nStock Units, under and subject to the terms of the MAXIMUS, Inc. 1997 Equity Incentive Plan (the "Equity Plan"), vesting\nat one-third on March 31, 2007, March 31, 2008 and March 31, 2009. Such award shall (i) provide for accelerated vesting in\nthe event of a Change in Control and (ii) have such other terms and conditions as are included in the standard MAXIMUS\nRestricted Stock Unit A greement that will be subsequently executed by the parties. In addition, the Executive shall be\nentitled to future awards under the Equity Plan in the discretion of the Corporation's Board of Directors, and shall also be\nentitled to participate in stock option and similar plans as currently exist or may be established by the Corporation from time\nto time. The Corporation agrees to proportionately adjust the Executive's vested and unvested equity awards in the event the\nCorporation declares an extraordinary dividend during the term hereof. For these purposes, an "extraordinary dividend"\nwould be any distribution per share having a value in excess of ten percent (10%) of the average trading price of the\nCorporation's common stock during the three-month period preceding such distribution.\n(e)\nIncome Continuity Program. On the Effective Date, the Executive shall become a Participant in the\nMAXIMUS, Inc. Income Continuity Program (the "Income Continuity Plan").\n(f)\nVacation, Insurance, Expenses, Etc. The Executive shall be entitled to 20 days accrual paid vacation\nper\nyear, and such benefits, health, disability and life insurance and other benefits and expense reimbursements in a manner\nconsistent with the Corporation's past practices and as are provided to executives at a similar level.\n(g)\nInsurance The Corporation shall maintain the Executive as an insured party on all directors' and officers'\ninsurance maintained by the Corporation for the benefit of its directors and officers on at least the same basis as all other\ncovered individuals and provide the Executive with at least the same corporate indemnification as its officers.\n(h)\nIndemnification. The Corporation shall reimburse the Executive for reasonable attorneys' fees incurred in\nconnection with the review and negotiation of this\n2\nAgreement as well as the termination of his employment with his immediate predecessor employer. The Corporation shall indemnify the Executive for any losses or costs (including reasonable attomeys' fees) arising\nfrom\na claim by his immediate predecessor employer that the Executive breached his employment agreement with them or otherwise wrongfully terminated his employment with them. The amount of such indemnification\nshall\nnot exceed $500,000. This provision shall survive the termination of Executive's employment, except in the case of a Termination for Cause (as defined in the Income Continuity Plan).\n1.3\nTerm; Termination. The term of the employment agreement set forth in this Section 1 shall be for a period\ncommencing at the Effective Date and continuing for four (4) years thereafter (the "Scheduled Term") provided that this A greement\nshall terminate:\n(a)\nby mutual written consent of the parties;\n(b)\nupon Executive's death or inability, by reason of physical or mental impairment, to perform substantially\nall of Executive's duties as contemplated herein for a continuous period of 120 days or more; or\n(c)\nby the Corporation for Cause (as defined in the Income Continuity Plan).\nUpon any termination of employment under this Section 1.3, neither party shall have any obligation to the other pursuant to this Section 1, but such termination shall have no effect on the obligations of the parties under\nother provisions of this Agreement.\n"Effective Date" shall mean the date Executive commences work for the Corporation, which shall not be later than May 1, 2006.\n1.4\nSeverance. The parties agree that in the event the Corporation terminates the Executive's employment without\nCause or the Executive terminates the employment for "Good Reason" (as defined in the Income Continuity Plan) prior to the\nexpiration of the Scheduled Term, the Executive shall be entitled to receive the greater of (i) Base Salary and benefits (including the\nbenefits specified in Section 1.2 above and the vesting of stock options and Restricted Stock Units) for the remainder of the\nScheduled Term or (ii) the severance benefits specified in the severance guidelines adopted by the Compensation Committee of the\nCorporation's Board of Directors on March 21, 2006. If the Executive's employment termination occurs in connection with a Change\nin Control, the Executive shall be entitled to receive such payments and benefits as provided under the Income Continuity Plan, and\nthis Section 1.4 shall not apply.\n1.5\nContinuation of Employment and Benefits. The Corporation shall treat the Executive as remaining in employment\nwith the Corporation continuously during the period beginning March 18, 2002 through the Effective Date, to the maximum extent\npermitted by law and the terms of the applicable plan documents. If any law or the terms of any plan document (or related agreement)\nprevents the Corporation from treating the Executive as remaining in employment with the Corporation continuously during this\nperiod the Corporation shall pay or provide to the Executive an amount equal to the difference between (a) and (b), where (a) and\n(b) are determined as follows:\n3\n(a)\nThe payments or benefits the Executive would have received or been entitled to if the Executive had\nremained in employment with the Corporation continuously during the period beginning March 18, 2002 through the\nEffective Date; and\n(b)\nThe payments or benefits the Executive actually received or is entitled to under applicable law and the\nterms of the applicable plan documents;\nNon-Competition\n2.1\nProhibited ctivities.\n(a)\nThe Executive agrees that, during his employment with the Corporation and for a period of one (1) year\nafter the termination of such employment, the Executive will not engage in any Unethical Behavior which may adversely\naffect the Corporation. For the purpose of this Section 2.1, "Unethical Behavior" is defined as:\n(i)\nany attempt, successful or unsuccessful, by the Executive to divert any existing or pending\ncontracts or subcontracts from the Corporation to any other firm, whether or not affiliated with the Executive;\n(ii)\nany attempt, successful or unsuccessful by the Executive, to influence clients of the Corporation\nor organizations with which the Corporation has an existing or pending contract or proposal to refrain from doing\nbusiness with the Corporation or to terminate existing business with the Corporation;\n(iii)\nany attempt, successful or unsuccessful, by the Executive to offer his services, or to influence\nany other employee of the Corporation to offer their services, to any firm to compete against the Corporation; or\n(iv)\nany attempt, successful or unsuccessful, by the Executive to employ or offer employment to, or\ncause any other person to employ or offer employment to any individual who was an employee of the Corporation\nat any time during the Executive's last six months of employment with the Corporation.\n(b)\nThe Executive shall notify any new employer, partner, association or any other firm or corporation in\ncompetition with the Corporation with whom the Executive shall become associated in any capacity whatsoever of the\nprovisions of this Section 2 and the Executive agrees that the Corporation may give such notice to such firm, corporation or\nother person.\n2.2\nBusiness Opportunities; Conflicts of Interest; Other Employment and Activities of the Executive.\n(a)\nThe Executive agrees promptly to advise the Corporation of, and provide the Corporation with an\nopportunity to pursue, all business opportunities that reasonably relate to the present business conducted by the Corporation.\n(b)\nThe Executive, in his capacity as an employee of the Corporation, shall not engage in any business with\nany member of the Executive's immediate family or with\nany person or business entity in which the Executive or any member of the Executive's immediate family has any ownership interest or financial interest, unless and until the Executive has first fully disclosed such interest\nto and received written consent from the Board of Directors. As used herein, the term "immediate family" means the Executive's spouse, natural or adopted children, parents or siblings and the term "financial interest"\nmeans any relationship with such person or business entity that may monetarily benefit the Executive or member of the Executive' immediate family, including any lending relationship or the guarantying of any\nobligations of such person or business entity by the Executive or member of his immediate family.\n(c)\nThe parties hereto agree that the Executive may, consistent with this Section 2.2, receive and retain\nspeaking fees, referral fees from business opportunities not accepted by the Corporation, and fees from outside business\nactivities and opportunities of the Executive consented to by the Board of Directors.\n3.\nConfidentiality The Executive agrees that the Corporation's books, records, files and all other non-public information\nrelating to the Corporation, its business, clients and employees are proprietary in nature and contain trade secrets and shall be held in\nstrict confidence by the Executive, and shall not either during the term of this A greement or after the termination hereof, be used by\nExecutive or disclosed directly or indirectly, to any third party, except to the extent such use or disclosure is in furtherance of the\nCorporation's business or required by any law, rule, regulation or other legal process. The trade secrets or other proprietary or\nconfidential information referred to in the prior sentence includes, without limitation, all proposals to clients or potential clients,\ncontracts, client or potential client lists, fee policies financial information administration or marketing practices or procedures and\nall other information regarding the business of the Corporation and its clients not generally known to the public.\n4.\nMiscellaneous.\n4.1\nNotices. All notices, requests, demands or other communications provided for in this A greement shall be in\nwriting and shall be delivered by hand, sent prepaid by ovemight delivery service or sent by the United States mail, certified, postage\nprepaid, return receipt request, to the following:\nIf to the Corporation:\nMAXIMUS, Inc.\n11419 Sunset Hills Road\nReston, Virginia 20190\nAttention: General Counsel\n5\nIf to the Executive:\nRichard A Montoni\n9317 Morison Lane\nGreat Falls, Virginia 22066\nAny notice, request, demand or other communication delivered or sent in the foregoing manner shall be deemed given or made (as the case may be) upon the earliest of (i) the date it is actually received, (ii) the business-da after the day\non which it is delivered by hand, (iii) the business day after the day on which it is properly delivered to Federal Express (or a comparable overnight delivery service), or (iv) the third business day after the date on which it is deposited in\nthe United States mail Either party may change its address by notifying the other party of the new address in any manner permitted by this paragraph.\n4.2\nRemedies. The parties agree and acknowledge that any violation by the Executive of the terms hereof may result\nin\nirreparable injury and damage to the Corporation or its clients, which may not adequately be compensable in monetary damages, that\nthe Corporation will have no adequate remedy at law therefor, and that the Corporation may obtain such preliminary, temporary or\npermanent mandatory or restraining injunctions, orders or decrees as may be necessary to protect it against or on account of, any\nbreach of the provisions contained in this greement\n4.3\nNo Obligation of Continued Employment The Executive understands that this A greement does not create an\nobligation on the part of the Corporation to continue the Executive's employment with the Corporation after the expiration or\ntermination of this A greement\n4.4\nBenefit; A ssignment. This A greement shall bind and inure to the benefit of the parties and their respective personal\nrepresentatives, heirs, successors and assigns, provided this Agreement may not be assigned by either party without the consent of the\nother, except that the Corporation may assign this Agreement in connection with the merger, consolidation or sale of all or\nsubstantially all of its business or assets.\n4.5\nEntire A greement. This greement supersedes all prior agreements, written or oral, with respect to the subject\nmatter of this greement.\n4.6\nSeverability In the event that any one or more of the provisions contained herein shall be held to be invalid,\nillegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this\nA greement, and all other provisions shall remain in full force and effect. If any of the provisions of this greement is held to be\nexcessively broad, it shall be reformed and construed by limiting and reducing it so as to be enforceable to the maximum extent\npermitted by law.\n4.7\nWaivers. No delay or omission by the Corporation in exercising any right under this A greement will operate as a\nwaiver of that or any other right. A waiver or consent given by the Corporation on any occasion is effective only in that instance and\nwill not be construed as a bar to or waiver of any right on any other occasion.\n4.8\nCaptions. The captions of the various sections and paragraphs of this A greement have been inserted only for the\npurpose of convenience; such captions are not a part of this A greement and shall not be deemed in any manner to modify, explain,\nenlarge or restrict any of the provisions of this greement.\n4.9\nGoverning Law and Jurisdiction This A greement shall in all events and for all purposes be governed by, and\nconstrued in accordance with, the laws of the Commonwealth of Virginia. Any action or proceeding against the parties relating in any\nway to this A greement must be brought and enforced in the courts of Fairfax County, Virginia or the Northern District of Virginia,\nand the parties irrevocably submit to the jurisdiction of such courts in respect of any such action or proceeding.\n4.10\nAmendments. No changes to this A greement shall be binding unless in writing and signed by both the parties.\n4.11\nCounterparts. This A greement may be executed in several counterparts, each of which shall be deemed an original,\nand all such counterparts shall constitute one instrument.\nTHE EXECUTIVE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND THE EXECUTIVE UNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. THE EXECUTIVE\nUNDERSTANDS THAT THIS AGREEMENT MAY AFFECT THE EXECUTIVE' RIGHT TO ACCEPT EMPLOYMENT WITH OTHER COMPANIES SUBSEQUENT TO THE EXECUTIVE' EMPLOY MENT\nWITH THE CORPORATION.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement effective as of the date first above written.\nEXECUTIVE\nMAXIMUS Inc.\nBy\nRichard A. Montoni\nTitle\nDate\n7	EX-10 .1 2 a06-10517 _1ex10d1.htm EX-10\nExhibit 10.1\nEXECUTIVE EMPLOYMENT, NON -COMPETE\nAND CONFIDENTIALITY AGREEMENT\nTHIS EXECUTIVE EMPLOYMENT, NON -COMPETE AND CONFIDENTIALITY AGREEMENT (“Agreement”) , is entered into as of the date set forth on the signature page by and between Richard A. Montoni (the\n“Executive”) and MAXIMUS, Inc., a Virginia corporation with its principal place of business in Reston, Virginia (the “Corporation”) with reference to the following:\nWHEREAS, the parties believe the Executive possesses the experience and capabilities to provide valuable service on behalf of the Corporation; and\nWHEREAS, the Corporation desires to employ the Executive as its Chief Executive Officer; and\nWHEREAS, the Executive desires to be employed by the Corporation at the salary, benefits and other terms and conditions specified herein.\nNOW, THEREFORE, in consideration of these premises and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:\n1.\nEmployment.\n1.1\nDuties. The Corporation hereby employs the Executive, and the Executive hereby accepts such employment, to\nserve as the Chief Executive Officer. The Executive hereby represents and warrants that he is in good health and capable of\nperforming the services required hereunder. The Executive shall perform such services and duties as are appropriate to such office or\ndelegated to the Executive by the Corporation’s Board of Directors (“Board”). During the term of this Agreement, the Executive shall\nbe a full-time employee of the Corporation and shall devote such time and attention to the discharge of his duties as may be necessary\nand appropriate to accomplish and complete such duties.\nThe Executive shall be nominated by the Board for election as a director and shall serve, without additional compensation, as a member of the Board, subject to his being so elected by the Corporation’s stockholders. The\nExecutive agrees to obtain the consent of the Board, which consent may be withheld in the Board’s sole discretion, before serving on the board of any other entity or organization.\n1.2\nCompensation.\n(a)\nBase Salary. As compensation for performance of his obligations hereunder, the Corporation shall pay the\nExecutive an annual salary of $600,000 (“Base Salary”), such Base Salary to be reviewed annually beginning on or about\nOctober 1, 2006.\n(b)\nYear-End Bonus. The Executive will participate in the Corporation’s annual bonus program, with any\nawards dependent on the performance of the Executive and the Corporation. The target cash bonus for the Executive will be\nseventy percent\n(70%) of annual Base Salary for accomplishing his annual goals; except the Corporation shall pay the Executive a bonus for fiscal year 2006 equal to $600,000. Commencing on the first day of employment, the Executive\nshall be permitted to draw against his 2006 bonus in the amount of $25,000 per month; provided, however, that the Executive shall repay the Corporation any and all such amounts should the Executive terminate his\nemployment with the Corporation before the earliest of (i) September 30, 2006, (ii) a “Change in Control” (as defined in the Income Continuity Plan), or (iii) his death or disability.\n(c)\nSigning Bonus. The Corporation shall pay the Executive a lump sum cash bonus of $300,000 upon his\nexecution of this Agreement; provided that, the Executive shall repay this bonus amount in full if he terminates employment\nwith the Corporation before the earliest of (i) the one-year anniversary of the Effective Date, (ii) a “Change in Control” (as\ndefined in the Income Continuity Plan), or (iii) his death or disability.\n(d)\nEquity Awards. On the Effective Date, the Corporation shall award the Executive 112,500 Restricted\nStock Units, under and subject to the terms of the MAXIMUS, Inc. 1997 Equity Incentive Plan (the “Equity Plan”), vesting\nat one-third on March 31, 2007, March 31, 2008 and March 31, 2009. Such award shall (i) provide for accelerated vesting in\nthe event of a Change in Control and (ii) have such other terms and conditions as are included in the standard MAXIMUS\nRestricted Stock Unit Agreement that will be subsequently executed by the parties. In addition, the Executive shall be\nentitled to future awards under the Equity Plan in the discretion of the Corporation’s Board of Directors, and shall also be\nentitled to participate in stock option and similar plans as currently exist or may be established by the Corporation from time\nto time. The Corporation agrees to proportionately adjust the Executive’s vested and unvested equity awards in the event the\nCorporation declares an extraordinary dividend during the term hereof. For these purposes, an “extraordinary dividend”\nwould be any distribution per share having a value in excess of ten percent (10%) of the average trading price of the\nCorporation’s common stock during the three-month period preceding such distribution.\n(e)\nIncome Continuity Program. On the Effective Date, the Executive shall become a Participant in the\nMAXIMUS, Inc. Income Continuity Program (the “Income Continuity Plan”).\n(f)\nVacation, Insurance, Expenses, Etc. The Executive shall be entitled to 20 days accrual paid vacation per\nyear, and such benefits, health, disability and life insurance and other benefits and expense reimbursements in a manner\nconsistent with the Corporation’s past practices and as are provided to executives at a similar level.\n(g)\nInsurance. The Corporation shall maintain the Executive as an insured party on all directors’ and officers’\ninsurance maintained by the Corporation for the benefit of its directors and officers on at least the same basis as all other\ncovered individuals and provide the Executive with at least the same corporate indemnification as its officers.\n(h)\nIndemnification. The Corporation shall reimburse the Executive for reasonable attorneys’ fees incurred in\nconnection with the review and negotiation of this\n2\nAgreement as well as the termination of his employment with his immediate predecessor employer. The Corporation shall indemnify the Executive for any losses or costs (including reasonable attorneys’ fees) arising from\na claim by his immediate predecessor employer that the Executive breached his employment agreement with them or otherwise wrongfully terminated his employment with them. The amount of such indemnification shall\nnot exceed $500,000. This provision shall survive the termination of Executive’s employment, except in the case of a Termination for Cause (as defined in the Income Continuity Plan).\n1.3\nTerm; Termination. The term of the employment agreement set forth in this Section 1 shall be for a period\ncommencing at the Effective Date and continuing for four (4) years thereafter (the “Scheduled Term”) provided that this Agreement\nshall terminate:\n(a)\nby mutual written consent of the parties;\n(b)\nupon Executive’s death or inability, by reason of physical or mental impairment, to perform substantially\nall of Executive’s duties as contemplated herein for a continuous period of 120 days or more; or\n(c)\nby the Corporation for Cause (as defined in the Income Continuity Plan).\nUpon any termination of employment under this Section 1.3, neither party shall have any obligation to the other pursuant to this Section 1, but such termination shall have no effect on the obligations of the parties under\nother provisions of this Agreement.\n“Effective Date” shall mean the date Executive commences work for the Corporation, which shall not be later than May 1, 2006.\n1.4\nSeverance. The parties agree that in the event the Corporation terminates the Executive’s employment without\nCause or the Executive terminates the employment for “Good Reason” (as defined in the Income Continuity Plan) prior to the\nexpiration of the Scheduled Term, the Executive shall be entitled to receive the greater of (i) Base Salary and benefits (including the\nbenefits specified in Section 1.2 above and the vesting of stock options and Restricted Stock Units) for the remainder of the\nScheduled Term or (ii) the severance benefits specified in the severance guidelines adopted by the Compensation Committee of the\nCorporation’s Board of Directors on March 21, 2006. If the Executive’s employment termination occurs in connection with a Change\nin Control, the Executive shall be entitled to receive such payments and benefits as provided under the Income Continuity Plan, and\nthis Section 1.4 shall not apply.\n1.5\nContinuation of Employment and Benefits. The Corporation shall treat the Executive as remaining in employment\nwith the Corporation continuously during the period beginning March 18, 2002 through the Effective Date, to the maximum extent\npermitted by law and the terms of the applicable plan documents. If any law or the terms of any plan document (or related agreement)\nprevents the Corporation from treating the Executive as remaining in employment with the Corporation continuously during this\nperiod, the Corporation shall pay or provide to the Executive an amount equal to the difference between (a) and (b), where (a) and\n(b) are determined as follows:\n3\n(a)\nThe payments or benefits the Executive would have received or been entitled to if the Executive had\nremained in employment with the Corporation continuously during the period beginning March 18, 2002 through the\nEffective Date; and\n(b)\nThe payments or benefits the Executive actually received or is entitled to under applicable law and the\nterms of the applicable plan documents;\n2.\nNon-Competition.\n2.1\nProhibited Activities.\n(a)\nThe Executive agrees that, during his employment with the Corporation and for a period of one (1) year\nafter the termination of such employment, the Executive will not engage in any Unethical Behavior which may adversely\naffect the Corporation. For the purpose of this Section 2.1, “Unethical Behavior” is defined as:\n(i)\nany attempt, successful or unsuccessful, by the Executive to divert any existing or pending\ncontracts or subcontracts from the Corporation to any other firm, whether or not affiliated with the Executive;\n(ii)\nany attempt, successful or unsuccessful, by the Executive, to influence clients of the Corporation\nor organizations with which the Corporation has an existing or pending contract or proposal to refrain from doing\nbusiness with the Corporation or to terminate existing business with the Corporation;\n(iii)\nany attempt, successful or unsuccessful, by the Executive to offer his services, or to influence\nany other employee of the Corporation to offer their services, to any firm to compete against the Corporation; or\n(iv)\nany attempt, successful or unsuccessful, by the Executive to employ or offer employment to, or\ncause any other person to employ or offer employment to any individual who was an employee of the Corporation\nat any time during the Executive’s last six months of employment with the Corporation.\n(b)\nThe Executive shall notify any new employer, partner, association or any other firm or corporation in\ncompetition with the Corporation with whom the Executive shall become associated in any capacity whatsoever of the\nprovisions of this Section 2 and the Executive agrees that the Corporation may give such notice to such firm, corporation or\nother person.\n2.2\nBusiness Opportunities; Conflicts of Interest; Other Employment and Activities of the Executive.\n(a)\nThe Executive agrees promptly to advise the Corporation of, and provide the Corporation with an\nopportunity to pursue, all business opportunities that reasonably relate to the present business conducted by the Corporation.\n(b)\nThe Executive, in his capacity as an employee of the Corporation, shall not engage in any business with\nany member of the Executive’s immediate family or with\n4\nany person or business entity in which the Executive or any member of the Executive’s immediate family has any ownership interest or financial interest, unless and until the Executive has first fully disclosed such interest\nto and received written consent from the Board of Directors. As used herein, the term “immediate family” means the Executive’s spouse, natural or adopted children, parents or siblings and the term “financial interest”\nmeans any relationship with such person or business entity that may monetarily benefit the Executive or member of the Executive’s immediate family, including any lending relationship or the guarantying of any\nobligations of such person or business entity by the Executive or member of his immediate family.\n(c)\nThe parties hereto agree that the Executive may, consistent with this Section 2.2, receive and retain\nspeaking fees, referral fees from business opportunities not accepted by the Corporation, and fees from outside business\nactivities and opportunities of the Executive consented to by the Board of Directors.\n3.\nConfidentiality. The Executive agrees that the Corporation’s books, records, files and all other non-public information\nrelating to the Corporation, its business, clients and employees are proprietary in nature and contain trade secrets and shall be held in\nstrict confidence by the Executive, and shall not, either during the term of this Agreement or after the termination hereof, be used by\nExecutive or disclosed, directly or indirectly, to any third party, except to the extent such use or disclosure is in furtherance of the\nCorporation’s business or required by any law, rule, regulation or other legal process. The trade secrets or other proprietary or\nconfidential information referred to in the prior sentence includes, without limitation, all proposals to clients or potential clients,\ncontracts, client or potential client lists, fee policies, financial information, administration or marketing practices or procedures and\nall other information regarding the business of the Corporation and its clients not generally known to the public.\n4.\nMiscellaneous.\n4.1\nNotices. All notices, requests, demands or other communications provided for in this Agreement shall be in\nwriting and shall be delivered by hand, sent prepaid by overnight delivery service or sent by the United States mail, certified, postage\nprepaid, return receipt request, to the following:\nIf to the Corporation:\nMAXIMUS, Inc.\n11419 Sunset Hills Road\nReston, Virginia 20190\nAttention: General Counsel\n5\nIf to the Executive:\nRichard A. Montoni\n9317 Morison Lane\nGreat Falls, Virginia 22066\nAny notice, request, demand or other communication delivered or sent in the foregoing manner shall be deemed given or made (as the case may be) upon the earliest of (i) the date it is actually received, (ii) the business-day after the day\non which it is delivered by hand, (iii) the business day after the day on which it is properly delivered to Federal Express (or a comparable overnight delivery service), or (iv) the third business day after the date on which it is deposited in\nthe United States mail. Either party may change its address by notifying the other party of the new address in any manner permitted by this paragraph.\n4.2\nRemedies. The parties agree and acknowledge that any violation by the Executive of the terms hereof may result in\nirreparable injury and damage to the Corporation or its clients, which may not adequately be compensable in monetary damages, that\nthe Corporation will have no adequate remedy at law therefor, and that the Corporation may obtain such preliminary, temporary or\npermanent mandatory or restraining injunctions, orders or decrees as may be necessary to protect it against, or on account of, any\nbreach of the provisions contained in this Agreement.\n4.3\nNo Obligation of Continued Employment. The Executive understands that this Agreement does not create an\nobligation on the part of the Corporation to continue the Executive’s employment with the Corporation after the expiration or\ntermination of this Agreement.\n4.4\nBenefit; Assignment. This Agreement shall bind and inure to the benefit of the parties and their respective personal\nrepresentatives, heirs, successors and assigns, provided this Agreement may not be assigned by either party without the consent of the\nother, except that the Corporation may assign this Agreement in connection with the merger, consolidation or sale of all or\nsubstantially all of its business or assets.\n4.5\nEntire Agreement. This Agreement supersedes all prior agreements, written or oral, with respect to the subject\nmatter of this Agreement.\n4.6\nSeverability. In the event that any one or more of the provisions contained herein shall be held to be invalid,\nillegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this\nAgreement, and all other provisions shall remain in full force and effect. If any of the provisions of this Agreement is held to be\nexcessively broad, it shall be reformed and construed by limiting and reducing it so as to be enforceable to the maximum extent\npermitted by law.\n4.7\nWaivers. No delay or omission by the Corporation in exercising any right under this Agreement will operate as a\nwaiver of that or any other right. A waiver or consent given by the Corporation on any occasion is effective only in that instance and\nwill not be construed as a bar to or waiver of any right on any other occasion.\n6\n4.8\nCaptions. The captions of the various sections and paragraphs of this Agreement have been inserted only for the\npurpose of convenience; such captions are not a part of this Agreement and shall not be deemed in any manner to modify, explain,\nenlarge or restrict any of the provisions of this Agreement.\n4.9\nGoverning Law and Jurisdiction. This Agreement shall in all events and for all purposes be governed by, and\nconstrued in accordance with, the laws of the Commonwealth of Virginia. Any action or proceeding against the parties relating in any\nway to this Agreement must be brought and enforced in the courts of Fairfax County, Virginia or the Northern District of Virginia,\nand the parties irrevocably submit to the jurisdiction of such courts in respect of any such action or proceeding.\n4.10\nAmendments. No changes to this Agreement shall be binding unless in writing and signed by both the parties.\n4.11\nCounterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original,\nand all such counterparts shall constitute one instrument.\nTHE EXECUTIVE HAS READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND THE EXECUTIVE UNDERSTANDS, AND AGREES TO, EACH OF SUCH PROVISIONS. THE EXECUTIVE\nUNDERSTANDS THAT THIS AGREEMENT MAY AFFECT THE EXECUTIVE’S RIGHT TO ACCEPT EMPLOYMENT WITH OTHER COMPANIES SUBSEQUENT TO THE EXECUTIVE’S EMPLOYMENT\nWITH THE CORPORATION.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement effective as of the date first above written.\nEXECUTIVE\nMAXIMUS, Inc.\nBy\nRichard A. Montoni\nDate\nTitle\n7
+c0125d77e2ef0b53a7490234828629d8.pdf	jurisdiction party	Exhibit 10.21\nAT-WILL CONFIDENTIALITY AGREEMENT\nREGARDING\nCERTAIN TERMS AND CONDITIONS\nOF EMPLOYMENT\nAT SPS COMMERCE, INC.\nTHIS AMENDED AND RESTATED AGREEMENT (the “Agreement”) dated as of , 2008 (the “Effective Date”) is made\nbetween\n,\n,\n, MN (hereinafter referred to as “Employee”) and SPS Commerce, Inc., a Delaware corporation,\nwith offices at 333 South Seventh Street, Suite 1000, Minneapolis, Minnesota 55402 (hereinafter referred to as “Employer”);\nWHEREAS, Employer is engaged in the business of developing, marketing and distributing computer software products and\nservices;\nWHEREAS, Employee has knowledge and experience in the above-designated business;\nWHEREAS, Employee and Employer are parties to an At-Will Confidentiality Agreement Regarding Certain Terms and\nConditions of Employment at SPS Commerce, Inc., dated\n(the “Prior Agreement”), which the parties desire to amend and\nrestate in its entirety with this Agreement;\nWHEREAS, Employer and Employee desire to amend, modify, and restate the Prior Agreement to comply with the requirements\nof Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and with the intent to exclude amounts payable as\nseverance from deferred compensation under Code Section 409A(a)(1); and\nWHEREAS, Employee acknowledges the receipt of good and valuable consideration from Employer in support of the Prior\nAgreement, and Employee further acknowledges and agrees that such consideration shall, together with the benefits hereunder,\nsupport the restatement of his/her obligations in this Agreement.\nFor the reasons set forth above, and in consideration of the mutual promises and agreements hereinafter set forth, Employer and\nEmployee agree as follows:\n1. EMPLOYMENT. Employee shall serve as\n, subject to the general supervision and pursuant to the order, advice, and\ndirection of Employer. Employee shall perform such duties as are customarily performed by one holding such position in other, same,\nor similar businesses or enterprises as that engaged in by Employer, and shall also additionally render such other and unrelated\nservices and duties as may reasonably be assigned to him/her from time to time by Employer.\n2. BEST EFFORTS OF EMPLOYEE. Employee agrees that he/she will at all times faithfully, industriously, and to the best of\nhis/her ability, experience and talents, perform all of the duties that may be required of and from his/her pursuant to the express and\nimplicit terms hereof, to the reasonable satisfaction of Employer.\n-1-\n3. OTHER EMPLOYMENT. Employee shall devote all of his/her time, attention, knowledge, and skills solely to the business\nand interest of Employer.\n4. CONFIDENTIALITY AND TRADE SECRETS. Employee will not disclose, use, reveal, disseminate or transfer any\nconfidential information acquired by Employee to any outside party, except as directly required in the performance of Employee’s\nduties for Employer or as required by law. Confidential information includes, but is not limited to, information regarding Employer’s\nproducts, processes, services, research, development, inventions, computer media, operations, manufacture, purchasing, accounting,\nfinancial data, engineering, sales, marketing, merchandising, selling, payroll, customer lists, credit classification, record, statistics,\ncontracts and suppliers which was obtained by Employee while employed by Employer or as a consequence of such employment\nwith Employer and not generally known. The foregoing is all deemed as confidential information and/or a trade secret, whether or not\nsuch information is clearly marked as “Confidential” or as a “Trade Secret”, the parties hereto stipulating that as between them the\nsame are important, material, confidential and constitute trade secrets, and as such gravely affect the effective and successful conduct\nof Employer’s business and goodwill. Confidential information also includes similar information belonging to Employer’s customers\nwhich Employee may gain access to in rendering services to any such customer on behalf of Employer.\n5. DISCLOSURE AND ASSIGNMENT. Employee agrees that all trade secrets, all inventions and patents, except those\nexcluded from any obligation to assign to Employer as a matter of law by any applicable state statute existing at the time such\ninvention was made, all works of authorship (including, but not limited to, illustrations, writing, mask works, software and computer\nprograms, and other programming documentation) and all other business or technical information created, prepared or conceived by\nEmployee, either alone or with others, while employed by Employer and related to the existing or contemplated business or research\nof Employer, or resulting from Employee’s work with Employer or from Employee’s knowledge of any proprietary, technical or\nbusiness information possessed or owned by Employer under paragraph 4 above, belongs to Employer. All such works of authorship\nshall be works made for hire. Until proven otherwise, any invention shall be presumed to have been conceived during such\nemployment if, within one (1) year after termination of such employment, it is disclosed to others, completed, or it has a copyright\nnotice affixed thereto or a patent application filed thereon.\nEmployee will promptly disclose to Employer all trade secrets, inventions, works of authorship, and information which belong to\nEmployer as set forth herein; and Employee will assign to Employer, or to others as directed by Employer, all of Employee’s interest\nin such inventions and works of authorship, and will execute any papers and do any acts which Employer may consider necessary to\nsecure to it any and all rights relating to such inventions and works of authorship, including all patents and copyrights (and renewals\nthereof) in any country.\nPursuant to Minnesota Statute 181.78, Subd. 1, the assignment provisions of this paragraph shall not apply to any ideas,\ndiscoveries, inventions or improvement for which no equipment, supplies, facility or trade secret information of the Employer was\nused, and which was developed entirely on Employee’s own time, and (1) which does not relate (a) directly to the\n-2-\nbusiness of the Employer or (b) to the Employer’s actual or demonstrably anticipated research or development; or (2) which does not\nresult from any work performed by Employee for the Employer.\n6. ASSISTANCE TO EMPLOYER. Employee shall give Employer, at Employer’s expense, all assistance Employer reasonably\nrequires to perfect, protect, and exercise the rights to all ideas, discoveries, inventions or improvements acquired by Employer\npursuant to the assignment provisions of paragraph 5 of this Agreement.\n7. RETURN OF DOCUMENTS. All documents or other property relating in any way to the business of Employer which are\nconceived or generated by Employee or come into Employee’s possession during Employee’s employment shall be and remain\nEmployer’s exclusive property. Employee will, upon termination of employment, leave with or deliver to Employer’s possession all\ncopies of documents, records, notes, books, directories, telephone and/or address listings, computer media, and similar repositories\ncontaining any confidential information whether prepared or maintained by Employee or another.\n8. NON-COMPETITION AND NON-SOLICITATION. During the term of employment with Employer and for one (1) year\nthereafter, Employee will not act as a Competing Person or Organization, act as an employee, owner, partner, consultant, or agent of\nany Competing Person or Organization or render any services, directly or indirectly, to any Competing Person or Organization.\n“Competing Person or Organization” includes any person or organization engaged in, or about to become engaged in, research,\ndevelopment, production, marketing or selling of any product, process or service in which the Employee was involved in any\ncapacity, or about which Employee obtained confidential information while employed by Employer. Competing Person or\nOrganization does not include:\n(A)\nA person or organization involved solely in a business substantially different from those in which Employee was engaged, and\nabout which Employee obtained no confidential information while employed by Employer; or\n(B)\nA person or organization involved in a business similar to that in which Employee was engaged while employed by Employer\nbut which markets and sells exclusively to persons or organizations: (i) which have not purchased any product, process or\nservice from Employer within two (2) years prior to Employee’s separation from employment; and (ii) about which Employee\nobtained no confidential information while employed by Employer.\nDuring the term of employment with Employer and for one (1) year thereafter, Employee will not, individually or in combination\nwith any Competing Person or Organization, market, produce, solicit orders, sell, deliver, create or provide any product, process, or\nservice which resembles or competes with a product, process or service with which Employee was involved in any capacity while\nemployed by Employer to any person or organization that was a customer or identified prospect of Employer within the two (2) year\nperiod prior to the date of Employee’s\n-3-\nseparation from employment or was contacted by the Employee within two (2) years prior to the date of Employee’s separation from\nemployment.\nEmployee further agrees that during the term of employment and for one (1) year thereafter, Employee shall not directly or\nindirectly in any manner solicit, assist, or encourage (or assist any other person or entity in soliciting or encouraging) any other\nofficer or employee of Employer to work or otherwise provide services to Employee or to any entity in which Employee participates\nin the ownership, management, operation, or control of, or is connected with in any manner as an independent contractor, consultant,\nor otherwise.\n9. REASONABLENESS OF TERMS. Employee acknowledges that compliance with the covenants contained herein upon\nseparation from employment with Employer shall not impair Employee’s ability to earn a livelihood. Employee further acknowledges\nthat the time and area restrictions contained herein are reasonable and not unduly burdensome.\n10. AT -WILL EMPLOYMENT; TERMINATION. Employee understands that Employer is an at-will employment employer.\nThis means the employment relationship may be terminated by either party at any time and for any reason. This Agreement is not a\ncontract for employment for any specific length of time. Notwithstanding the foregoing, if either Employee or Employer desire to\nterminate the employment of Employee, each such party shall give at least 30 days notice to the other party prior to the effective date\nof such termination (except in the case of a termination by Employer for Cause (as defined in paragraph 11(c) below), in which case\nEmployer shall be permitted to terminate Employee’s employment immediately upon notice thereof).\n11. SEVERANCE.\na. Involuntary Termination without Cause. In the event that Employer terminates Employee’s employment without Cause,\nand provided that such termination of employment does not occur upon or within twelve (12) months after a Change in Control,\nEmployer shall pay Employee severance equal to six (6) months of Employee’s then current base salary, provided that such severance\nshall not exceed two times the lesser of (a) the Code § 401(a)(17) compensation limit for the year in which the Termination Date\noccurs, or (b) Employee’s annualized compensation based upon the annual rate of pay for services to Employer for the calendar year\nprior to the calendar year in which the Termination Date occurs (adjusted for any increase during that year that was expected to\ncontinue indefinitely if the Employee had not separated from service). Payment of such severance will be conditioned on Employee’s\nexecution (and non-rescission) of a standard release of claims in the form provided by Employer at the time of such termination.\nSeverance will be paid to Employee over the six (6) month severance period commencing from and after the Termination Date, in\naccordance with Employer’s normal payroll schedule. Severance payments shall be subject to normal payroll withholdings. The\nEmployer and Employee intend the severance payments under this paragraph 11(a) to be a “separation pay plan due to involuntary\nseparation from service” under Treas. Reg. § 1.409A-1(b)(9)(iii).\nb. Involuntary Termination After Change in Control. In the event that Employer terminates Employee’s employment\nwithout Cause upon or within twelve (12) months\n-4-\nafter a Change in Control, or in the event that Employee quits for Good Reason upon or within twelve (12) months after a Change in\nControl, Employer shall pay Employee severance equal to twelve months of Employee’s then current base salary, as follows:\n(i) Limitation on Payment Amount. Such severance shall not exceed a maximum amount of two times the lesser of (x) the\nCode § 401(a)(17) compensation limit for the year in which the Termination Date occurs, or (y) Employee’s annualized\ncompensation based upon the annual rate of pay for services to the Service Recipient for the calendar year prior to the calendar year\nin which the Termination Date occurs (adjusted for any increase during that year that was expected to continue indefinitely if the\nEmployee had not separated from service). Severance will be paid to Employee over the twelve-month severance period commencing\nfrom and after the Termination Date, in accordance with Employer’s normal payroll schedule. Employer and Employee intend the\nseverance payments under this paragraph 11(b)(i) to be a “separation pay plan due to involuntary separation from service” under\nTreas. Reg. § 1.409A-1(b)(9)(iii).\n(ii) Alternative Form of Payment. If the severance otherwise payable to Employee is reduced to zero (0) by application of\nthe maximum limitation under paragraph 11(b)(i)(y), then Employer shall in the alternative pay Employee severance equal to twelve\nmonths of Employee’s then-current base salary commencing from and after the Termination Date, in accordance with the normal\npayroll schedule of Employer, except that any amounts that remain payable as of the Short-Term Deferral Deadline shall be paid in a\nlump sum no later than the Short-Term Deferral Deadline. Employer and Employee intend the severance payments under this\nparagraph 11(b)(ii) to constitute a short-term deferral under Treas. Reg. § 1.409A-1(b)(4).\n(iii) Other Conditions. Payment of such severance under this paragraph 11(b) will be conditioned on Employee’s execution\n(and non-rescission) of a standard release of claims in the form provided by Employer at the time of such termination. If Employee’s\nemployment is terminated without Cause under conditions such that he/she is entitled to severance payments under this paragraph\n11(b), then Employee shall be entitled to severance payments only under this paragraph 11(b) and shall not be entitled to any\nseverance payments under paragraph 11(a) of this Agreement. Severance payments shall be subject to normal payroll withholdings.\nc. Definitions. For purposes of this Agreement, the following terms shall have the following meanings:\n(i) “Cause” and “Change in Control” shall have the meanings ascribed to those terms as set forth in the SPS Commerce,\nInc. 2001 Stock Option Plan (the “Stock Option Plan”), as amended.\n(ii) “Employer” shall include any current or future successor, parent, subsidiary, affiliate or other joint venture partner to\nwhich any right or obligation has been assigned or delegated by SPS Commerce, Inc. or by operation of law.\n-5-\n(iii) “Good Reason” shall mean a material reduction in Employee’s then-current base salary at the time of the Change in\nControl or a material reduction in Employee’s employment responsibilities following such Change in Control, in each case without\nEmployee’s consent, provided that Employee first gives notice of the material reduction giving rise to Good Reason to the Employer\nwithin ninety (90) days of the first occurrence of the reduction, and provided further that upon giving notice Employee provides\nEmployer 30 days in which to remedy the reduction and not be required to pay the severance amount set forth in paragraph 11(b).\nNotwithstanding anything to the contrary in this paragraph 11(c), Employee shall not be deemed to have quit for Good Reason, and\nEmployee shall not be entitled to payments upon his/her resignation under this Agreement, unless Employee’s Termination Date\nfollowing his/her resignation for Good Reason occurs within two (2) years following the first occurrence of the reduction.\n(iv) “Service Recipient” shall have the meaning set forth in Treas. Reg. § 1.409A-1(g).\n(v) “Short-Term Deferral Deadline” shall mean the date that is the 15th day of the third month following the end of the later\nof the calendar year, or the Service Recipient’s taxable year, in which the Termination Date occurs.\n(vi) “Termination Date” shall mean the date upon which Employee’s termination of employment with Employer is\neffective. For purposes of paragraph 11 of this Agreement only, the Termination Date shall mean the date on which a “separation\nfrom service” has occurred for purposes of Section 409A of the Code and the regulations and guidance thereunder.\n12. SURVIVAL OF OBLIGATIONS. All provisions of this Agreement relating to discoveries, confidential information, trade\nsecrets, competitive activities, and ownership of proprietary property, shall survive termination of the employment relationship\nbetween Employee and Employer.\n13. MODIFICATION OF AGREEMENT. No waiver or modification of this Agreement or of any covenant, condition, or\nlimitation herein contained shall be valid unless in writing and duly executed by both parties.\n14. CHOICE OF LAW, JURISDICTION, AND VENUE. The validity, construction and performance of this Agreement shall\nbe governed by, and construed in accordance with, the laws of the State of Minnesota, without reference to any choice of laws\nprovisions thereof. The parties further agree that any litigation or proceeding arising out of, or relating to, this Agreement (whether\nthe same sounds in tort or contract or both) shall be commenced and maintained in a federal or state court located in Hennepin\nCounty, Minnesota, and for such purpose the parties consent to any such court’s exercise of personal jurisdiction over them.\n15. INJUNCTIVE RELIEF — ATTORNEY’S FEES. In recognition of the irreparable harm that violation of this Agreement\ncould cause Employer, Employee agrees that, in addition to any relief afforded by law, an injunction against such violation or\nviolations may\n-6-\nbe issued against Employee, it being understood by the parties that both damages and an injunction shall be proper modes of relief\nand not considered alternative remedies. In the event of any such violation(s), Employee agrees to pay the reasonable attorneys’ fees\nincurred by Employer in the enforcement of any of its rights with respect to said violation(s), in addition to the actual damages\nsustained by Employer as a result thereof.\n16. ASSIGNMENTS. This Agreement is personal in nature and cannot be assigned by Employee. The terms, conditions,\ncovenants, and representations herein shall inure to and be binding upon the heirs and representatives of Employee and shall inure to\nthe benefit of and shall be binding upon the successors and assigns of Employer.\n17. SEVERABILITY. Agreements and covenants contained herein are severable, and in the event any of them shall be held to be\ninvalid by any competent court, this Agreement shall be interpreted as if such invalid agreement or covenants were not contained\nherein.\n18. INTERPRETATION. This Agreement is intended to satisfy, or be exempt from, the requirements of Section 409A(a)(2), (3),\nand (4) of the Code, including current and future guidance and regulations interpreting such provisions, and should be interpreted\naccordingly.\n19. TAXES. Employer may withhold from any amounts payable under this Agreement such federal, state and local income and\nemployment taxes as Employer shall determine are required to be withheld pursuant to any applicable law or regulation. Employee\nshall be solely responsible for the payment of all taxes due and owing with respect to wages, benefits, and other compensation\nprovided to him/her hereunder.\n20. COMPLETE AGREEMENT. This Agreement and any stock option agreements between Employer and Employee contain\nthe complete agreement concerning the terms and conditions of the employment arrangement between the parties and shall, as of the\neffective date hereof, supersede all other agreements between the parties, including without limitation the Prior Agreement. The\nparties stipulate that neither of them has made any representation with respect to the subject matter of this Agreement or any\nrepresentations including the execution and delivery hereof except such representations as are specifically set forth herein and the\nparties hereto acknowledge that they have relied on their own judgment in entering into this Agreement.\nSPS COMMERCE, INC.\nEMPLOYEE\nEMPLOYER\nBy:\nBy:\nIts:\nDate:\nDate:\n-7-	Exhibit 10.21\nAT-WILL CONFIDENTIALITY AGREEMENT\nREGARDING\nCERTAIN TERMS AND CONDITIONS\nOF EMPLOYMENT\nAT SPS COMMERCE, INC.\nTHIS AMENDED AND RE STATED AG REEMENT (the ”Agreement") dated as of , 2008 (the ”Effective Date") is made\nbetween , , , MN (hereinafter referred to as ”Employee”) and SP8 Commerce, Inc., a Delaware corporation,\nwith offices at 333 South Seventh Street, Suite 1000, Minneapolis, Minnesota 55402 (hereinafter referred to as ”Employer”);\nWHEREAS, Employer is engaged in the business of developing, marketing and distributing computer software products and\nservices;\nWHEREAS, Employee has knowledge and experience in the above designated business;\nWHEREAS, Employee and Employer are parties to an At-Will Confidentiality Agreement Regarding Certain Terms and\nConditions of Employment at SPS Commerce, Inc., dated (the ”Prior Agreement"), which the parties desire to amend and\nrestate in its entirety with this Agreement;\nWHEREAS, Employer and Employee desire to amend, modify, and restate the Prior Agreement to comply with the requirements\nof Section 409A of the lntemal Revenue Code of 1986, as amended (the ”C ode”), and with the intent to exclude amounts payable as\nseverance from deferred compensation under Code Section 409A (a)(1); and\nWHEREAS, Employee acknowledges the receipt of good and valuable consideration from Employer in support of the Prior\nAgreement, and Employee further acknowledges and agrees that such consideration shall, together with the benefits hereunder,\nsupport the restatement of his/her obligations in this A greement.\nFor the reasons set forth above, and in consideration of the mutual promises and agreements hereinafter set forth, Employer and\nEmployee agree as follows:\n1. EMPLOYMENT. Employee shall serve as , subject to the general supervision and pursuant to the order, advice, and\ndirection of Employer. Employee shall perform such duties as are customarily performed by one holding such position in other, same,\nor similar businesses or enterprises as that engaged in by Employer, and shall also additionally render such other and unrelated\nservices and duties as may reasonably be assigned to him/her from time to time by Employer.\n2. BE ST EFFORTS OF EMPLOYEE. Employee agrees that he/she will at all times faithfully, industriously, and to the best of\nhis/her ability, experience and talents, perform all of the duties that may be required of and from his/her pursuant to the express and\nimplicit terms hereof, to the reasonable satisfaction of Employer.\n3. OTHER EMPLOYMENT. Employee shall devote all of his/her time, attention, knowledge, and skills solely to the business\nand interest of Employer.\n4. CONFIDENTIALITY AND TRADE SECRETS. Employee will not disclose, use, reveal, disseminate or transfer any\nconfidential information acquired by Employee to any outside party, except as directly required in the performance of Employee' s\nduties for Employer or as required by law. Confidential information includes, but is not limited to, information regarding Employer” s\nproducts, processes, services, research, development, inventions, computer media, operations, manufacture, purchasing, accounting,\nfinancial data, engineering, sales, marketing, merchandising, selling, payroll, customer lists, credit classification, record, statistics,\ncontracts and suppliers which was obtained by Employee while employed by Employer or as a consequence of such employment\nwith Employer and not generally known. The foregoing is all deemed as confidential information and/or a trade secret, whether or not\nsuch information is clearly marked as ”Confidential" or as a ”Trade Secret", the parties hereto stipulating that as between them the\nsame are important, material, confidential and constitute trade secrets, and as such gravely affect the effective and successful conduct\nof Employer” s business and goodwill. Confidential information also includes similar information belonging to Employer” s customers\nwhich Employee may gain access to in rendering services to any such customer on behalf of Employer.\n5. DISCLOSURE AND ASSIG NMENT. Employee agrees that all trade secrets, all inventions and patents, except those\nexcluded from any obligation to assign to Employer as a matter of law by any applicable state statute existing at the time such\ninvention was made, all works of authorship (including, but not limited to, illustrations, writing, mask works, software and computer\nprograms, and other programming documentation) and all other business or technical information created, prepared or conceived by\nEmployee, either alone or with others, while employed by Employer and related to the existing or contemplated business or research\nof Employer, or resulting from Employee' s work with Employer or from Employee' s knowledge of any proprietary, technical or\nbusiness information possessed or owned by Employer under paragraph 4 above, belongs to Employer. All such works of authorship\nshall be works made for hire. Until proven otherwise, any invention shall be presumed to have been conceived during such\nemployment if, within one (1) year after termination of such employment, it is disclosed to others, completed, or it has a copyright\nnotice affixed thereto or a patent application filed thereon.\nEmployee will promptly disclose to Employer all trade secrets, inventions, works of authorship, and information which belong to\nEmployer as set forth herein; and Employee will assign to Employer, or to others as directed by Employer, all of Employee' s interest\nin such inventions and works of authorship, and will execute any papers and do any acts which Employer may consider necessary to\nsecure to it any and all rights relating to such inventions and works of authorship, including all patents and copyrights (and renewals\nthereof) in any country.\nPursuant to Minnesota Statute 181.78, Subd. 1, the assignment provisions of this paragraph shall not apply to any ideas,\ndiscoveries, inventions or improvement for which no equipment, supplies, facility or trade secret information of the Employer was\nused, an_d which was developed entirely on Employee' s own time, Q (1) which does not relate (a) directly to the\n-2-\nbusiness of the Employer or (b) to the Employer” s actual or demonstrably anticipated research or development; or (2) which does not\nresult from any work performed by Employee for the Employer.\n6. ASSISTANCE TO EMPLOYER. Employee shall give Employer, at Employer s expense, all assistance Employer reasonably\nrequires to perfect, protect, and exercise the rights to all ideas, discoveries, inventions or improvements acquired by Employer\npursuant to the assignment provisions of paragraph 5 of this Agreement.\n7. RETURN OF DOCUMENTS. All documents or other property relating in any way to the business of Employer which are\nconceived or generated by Employee or come into Employee' s possession during Employee' s employment shall be and remain\nEmployer“ s exclusive property. Employee will, upon termination of employment, leave with or deliver to Employer” s possession all\ncopies of documents, records, notes, books, directories, telephone and/or address listings, computer media, and similar repositories\ncontaining any confidential information whether prepared or maintained by Employee or another.\n8. NON-COMPETITION AND NON-SOLICITATION. During the term of employment with Employer and for one (1) year\nthereafter, Employee will not act as a Competing Person or Organization, act as an employee, owner, partner, consultant, or agent of\nany Competing Person or Organization or render any services, directly or indirectly, to any Competing Person or Organization.\n”Competing Person or Organization” includes any person or organization engaged in, or about to become engaged in, research,\ndevelopment, production, marketing or selling of any product, process or service in which the Employee was involved in any\ncapacity, or about which Employee obtained confidential information while employed by Employer. Competing Person or\nOrganization does not include:\nA person or organization involved solely in a business substantially different from those in which Employee was engaged, and\nabout which Employee obtained no confidential information while employed by Employer; or\nA person or organization involved in a business similar to that in which Employee was engaged while employed by Employer\nbut which markets and sells exclusively to persons or organizations: (1) which have not purchased any product, process or\nservice from Employer within two (2) years prior to Employee’s separation from employment; and (ii) about which Employee\nobtained no confidential information while employed by Employer.\nDuring the term of employment with Employer and for one (1) year thereafter, Employee will not, individually or in combination\nwith any Competing Person or Organization, market, produce, solicit orders, sell, deliver, create or provide any product, process, or\nservice which resembles or competes with a product, process or service with which Employee was involved in any capacity while\nemployed by Employer to any person or organization that was a customer or identified prospect of Employer within the two (2) year\nperiod prior to the date of Employee’s\nseparation from employment or was contacted by the Employee within two (2) years prior to the date of Employee’ s separation from\nemployment.\nEmployee further agrees that during the term of employment and for one (1) year thereafter, Employee shall not directly or\nindirectly in any manner solicit, assist, or encourage (or assist any other person or entity in soliciting or encouraging) any other\nofficer or employee of Employer to work or otherwise provide services to Employee or to any entity in which Employee participates\nin the ownership, management, operation, or control of, or is connected with in any manner as an independent contractor, consultant,\nor otherwise.\n9. REA SO NABLENE SS OF TERMS. Employee acknowledges that compliance with the covenants contained herein upon\nseparation from employment with Employer shall not impair Employee' s ability to earn a livelihood. Employee further acknowledges\nthat the time and area restrictions contained herein are reasonable and not unduly burdensome.\n10. AT-W ILL EMPLOYMENT- TERMINATION. Employee understands that Employer is an at-will employment employer.\nThis means the employment relationship may be terminated by either party at any time and for any reason. This Agreement is not a\ncontract for employment for any specific length of time. Notwithstanding the foregoing, if either Employee or Employer desire to\nterminate the employment of Employee, each such party shall give at least 30 days notice to the other party prior to the effective date\nof such termination (except in the case of a termination by Employer for Cause (as defined in paragraph 11(c) below), in which case\nEmployer shall be permitted to terminate Employee' s employment immediately upon notice thereof).\n \n11. SEVERANCE.\na. Involuntary Termination without C ause. In the event that Employer terminates Employee' s employment without Cause,\nand provided that such termination of employment does not occur upon or within twelve (12) months after a Change in Control,\nEmployer shall pay Employee severance equal to six (6) months of Employee' s then current base salary, provided that such severance\nshall not exceed two times the lesser of (a) the Code § 401(a)(17) compensation limit for the year in which the Termination Date\noccurs, or (b) Employee' s annualized compensation based upon the annual rate of pay for services to Employer for the calendar year\nprior to the calendar year in which the Termination D ate occurs (adjusted for any increase during that year that was expected to\ncontinue indefinitely if the Employee had not separated from service). Payment of such severance will be conditioned on Employee' s\nexecution (and non-rescission) of a standard release of claims in the form provided by Employer at the time of such termination.\nSeverance will be paid to Employee over the six (6) month severance period commencing from and after the Termination Date, in\naccordance with Employer s normal payroll schedule. Severance payments shall be subject to normal payroll withholdings. The\nEmployer and Employee intend the severance payments under this paragraph 11(a) to be a ”separation pay plan due to involuntary\nseparation from service” under Treas. Reg. § 1.409A-1(b)(9)(iii).\nb. Involuntary Termination After Change in Control. In the event that Employer terminates Employee' s employment\nwithout Cause upon or within twelve (12) months\nafter a Change in Control, or in the event that Employee quits for Good Reason upon or within twelve (12) months after a Change in\nControl, Employer shall pay Employee severance equal to twelve months of Employee' 5 then current base salary, as follows:\n(i) Limitation on Payment Amount. Such severance shall not exceed a maximum amount of two times the lesser of (x) the\nCode § 401(a)(17) compensation limit for the year in which the Termination Date occurs, or (y) Employee' 5 annualized\ncompensation based upon the annual rate of pay for services to the Service Recipient for the calendar year prior to the calendar year\nin which the Termination Date occurs (adjusted for any increase during that year that was expected to continue indefinitely if the\nEmployee had not separated from service). Severance will be paid to Employee over the twelvemonth severance period commencing\nfrom and after the Termination Date, in accordance with Employer” 5 normal payroll schedule. Employer and Employee intend the\nseverance payments under this paragraph 11(b)(i) to be a ”separation pay plan due to involuntary separation from service” under\nTreas. Reg. § 1.409A-1(b)(9)(iii).\n(ii) Alternative Form of Payment. If the severance otherwise payable to Employee is reduced to zero (0) by application of\nthe maximum limitation under paragraph 11(b)(i)(y), then Employer shall in the alternative pay Employee severance equal to twelve\nmonths of Employee' 5 then-current base salary commencing from and after the Termination Date, in accordance with the normal\npayroll schedule of Employer, except that any amounts that remain payable as of the Short-Term D eferral Deadline shall be paid in a\nlump sum no later than the Short-Term Deferral Deadline. Employer and Employee intend the severance payments under this\nparagraph 11(b)(ii) to constitute a short-term deferral under Treas. Reg. § 1.409A-1(b)(4).\n(iii) Other Conditions. Payment of such severance under this paragraph 11(b) will be conditioned on Employee’s execution\n(and non-rescission) of a standard release of claims in the form provided by Employer at the time of such termination. If Employee’s\nemployment is terminated without Cause under conditions such that he/she is entitled to severance payments under this paragraph\n11(b), then Employee shall be entitled to severance payments only under this paragraph 11(b) and shall not be entitled to any\nseverance payments under paragraph 11(a) of this Agreement. Severance payments shall be subject to normal payroll withholdings.\n0. Definitions. For purposes of this Agreement, the following terms shall have the following meanings:\n(i) ”C ause” and ”Change in C ontrol" shall have the meanings ascribed to those terms as set forth in the SPS Commerce,\nInc. 2001 Stock Option Plan (the ”Stock Option Plan”), as amended.\n(ii) ”Employer" shall include any current or future successor, parent, subsidiary, affiliate or other joint venture partner to\nwhich any right or obligation has been assigned or delegated by SPS Commerce, Inc. or by operation of law.\n-5-\n(iii) ”G ood Reason" shall mean a material reduction in Employee' s then-current base salary at the time of the Change in\nControl or a material reduction in Employee' s employment responsibilities following such Change in Control, in each case without\nEmployee' s consent, provided that Employee first gives notice of the material reduction giving rise to Good Reason to the Employer\nwithin ninety (90) days of the first occurrence of the reduction, and provided further that upon giving notice Employee provides\nEmployer 30 days in which to remedy the reduction and not be required to pay the severance amount set forth in paragraph 11(b).\nNotwithstanding anything to the contrary in this paragraph 11(c), Employee shall not be deemed to have quit for Good Reason, and\nEmployee shall not be entitled to payments upon his/her resignation under this Agreement, unless Employee' s Termination Date\nfollowing his/her resignation for Good Reason occurs within two (2) years following the first occurrence of the reduction.\n(iv) ”Service Recipient" shall have the meaning set forth in Treas. Reg. § 1.409A-1(g).\n(v) ”Short-Term D eferral D eadline" shall mean the date that is the 15th day of the third month following the end of the later\nof the calendar year, or the Service Recipient’ s taxable year, in which the Termination D ate occurs.\n(vi) ”Termination D ate" shall mean the date upon which Employee' s termination of employment with Employer is\neffective. For purposes of paragraph 11 of this Agreement only, the Termination Date shall mean the date on which a ”separation\nfrom service” has occurred for purposes of Section 409A of the Code and the regulations and guidance thereunder.\n12. SURVIVAL OF OBLIGATIONS. All provisions of this Agreement relating to discoveries, confidential information, trade\nsecrets, competitive activities, and ownership of proprietary property, shall survive termination of the employment relationship\nbetween Employee and Employer.\n13. MODIFICATION OF AG REEMENT. No waiver or modification of this Agreement or of any covenant, condition, or\nlimitation herein contained shall be valid unless in writing and duly executed by both parties.\n14. CHOIC E OF LAW, |URISDICTION, AND VENUE. The validity, construction and performance of this Agreement shall\nbe governed by, and construed in accordance with, the laws of the State of Minnesota, without reference to any choice of laws\nprovisions thereof. The parties further agree that any litigation or proceeding arising out of, or relating to, this Agreement (whether\nthe same sounds in tort or contract or both) shall be commenced and maintained in a federal or state court located in Hennepin\nCounty, Minnesota, and for such purpose the parties consent to any such court' s exercise of personal jurisdiction over them.\n15. IN| UNCTIVE RELIEF — ATTORNEY’S FEES. In recognition of the irreparable harm that violation of this Agreement\ncould cause Employer, Employee agrees that, in addition to any relief afforded by law, an injunction against such violation or\nviolations may\nbe issued against Employee, it being understood by the parties that both damages and an injunction shall be proper modes of relief\nand not considered alternative remedies. In the event of any such violation(s), Employee agrees to pay the reasonable attorneys’ fees\nincurred by Employer in the enforcement of any of its rights with respect to said violation(s), in addition to the actual damages\nsustained by Employer as a result thereof.\n16. ASSIG NMENTS. This Agreement is personal in nature and cannot be assigned by Employee. The terms, conditions,\ncovenants, and representations herein shall inure to and be binding upon the heirs and representatives of Employee and shall inure to\nthe benefit of and shall be binding upon the successors and assigns of Employer.\n17. SEVERABIL ITY. Agreements and covenants contained herein are severable, and in the event any of them shall be held to be\ninvalid by any competent court, this Agreement shall be interpreted as if such invalid agreement or covenants were not contained\nherein.\n18. INTERPRETATION. This Agreement is intended to satisfy, or be exempt from, the requirements of Section 409A (a)(2), (3),\nand (4) of the Code, including current and future guidance and regulations interpreting such provisions, and should be interpreted\naccordingly.\n19. TAXES. Employer may withhold from any amounts payable under this Agreement such federal, state and local income and\nemployment taxes as Employer shall determine are required to be withheld pursuant to any applicable law or regulation. Employee\nshall be solely responsible for the payment of all taxes due and owing with respect to wages, benefits, and other compensation\nprovided to him/her hereunder.\n20. COMPLETE AG REEMENT. This Agreement and any stock option agreements between Employer and Employee contain\nthe complete agreement concerning the terms and conditions of the employment arrangement between the parties and shall, as of the\neffective date hereof, supersede all other agreements between the parties, including without limitation the Prior Agreement. The\nparties stipulate that neither of them has made any representation with respect to the subject matter of this A greement or any\nrepresentations including the execution and delivery hereof except such representations as are specifically set forth herein and the\nparties hereto acknowledge that they have relied on their own judgment in entering into this Agreement.\nSPS COMMERCE, INC.\nEMPLOYEE EMPLOYER\nBy: By:\nIts:\nDate: Date:	Exhibit 10.21\nAT-WILL CONFIDENTIALITY AGREEMENT\nREGARDING\nCERTAIN TERMS AND CONDITIONS\nOF EMPLOYMENT\nAT SPS COMMERCE, INC.\nTHIS AMENDED AND RESTATED AGREEMENT (the "Agreement") dated as of 2008 (the "Effective Date")\nis\nmade\nbetween\nMN (hereinafter referred to as "Employee") and SPS Commerce, Inc., a Delaware corporation\nwith offices at 333 South Seventh Street, Suite 1000, Minneapolis, Minnesota 55402 (hereinafter referred to as "Employer");\nWHEREAS, Employer is engaged in the business of developing, marketing and distributing computer software products and\nservices;\nWHEREAS, Employee has knowledge and experience in the above-designated business;\nWHEREAS, Employee and Employer are parties to an At-Will Confidentiality greement Regarding Certain Terms and\nConditions of Employment at SPS Commerce, Inc., dated (the "Prior Agreement"), which the parties desire to amend and\nrestate in its entirety with this Agreement;\nWHEREAS, Employer and Employee desire to amend, modify, and restate the Prior A greement to comply with the requirements\nof Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), and with the intent to exclude amounts payable as\nseverance from deferred compensation under Code Section 409A and\nWHEREAS, Employee acknowledges the receipt of good and valuable consideration from Employer in support of the Prior\nA greement, and Employee further acknowledges and agrees that such consideration shall, together with the benefits hereunder,\nsupport the restatement of his/her obligations in this Agreement.\nFor the reasons set forth above, and in consideration of the mutual promises and agreements hereinafter set forth, Employer and\nEmployee agree as follows:\n1. EMPLOYMENT Employee shall serve as\nsubject to the general supervision and pursuant to the order, advice, and\ndirection of Employer. Employee shall perform such duties as are customarily performed by one holding such position in other, same,\nor similar businesses or enterprises as that engaged in by Employer, and shall also additionally render such other and unrelated\nservices and duties as may reasonably be assigned to him/her from time to time by Employer.\n2. BEST EFFORTS OF EMPLOYEE. Employee agrees that he/she will at all times faithfully, industriously, and to the best of\nhis/her ability, experience and talents, perform all of the duties that may be required of and from his/her pursuant to the express and\nimplicit terms hereof, to the reasonable satisfaction of Employer.\n-1-\n3.\nOTHER EMPLOYMENT. Employee shall devote all of his/her time, attention, knowledge, and skills solely to the business\nand interest of Employer.\n4. CONFIDENTIALITY AND TRADE SECRETS. Employee will not disclose, use, reveal, disseminate or transfer any\nconfidential information acquired by Employee to any outside party, except as directly required in the performance of Employee's\nduties for Employer or as required by law. Confidential information includes, but is not limited to, information regarding Employer's\nproducts, processes, services, research, development, inventions, computer media, operations, manufacture, purchasing, accounting,\nfinancial data, engineering, sales, marketing, merchandising, selling, payroll, customer lists, credit classification, record, statistics,\ncontracts and suppliers which was obtained by Employee while employed by Employer or as a consequence of such employment\nwith Employer and not generally known. The foregoing is all deemed as confidential information and/or a trade secret, whether or not\nsuch information is clearly marked as "Confidential" or as a "Trade Secret", the parties hereto stipulating that as between them the\nsame are important, material, confidential and constitute trade secrets, and as such gravely affect the effective and successful conduct\nof Employer's business and goodwill. Confidential information also includes similar information belonging to Employer's customers\nwhich Employee may gain access to in rendering services to any such customer on behalf of Employer.\n5. DISCLOSURE AND ASSIGNMENT. Employee agrees that all trade secrets, all inventions and patents, except those\nexcluded from any obligation to assign to Employer as a matter of law by any applicable state statute existing at the time such\ninvention was made, all works of authorship (including, but not limited to, illustrations, writing, mask works, software and computer\nprograms, and other programming documentation) and all other business or technical information created, prepared or conceived by\nEmployee, either alone or with others, while employed by Employer and related to the existing or contemplated business or research\nof\nEmployer, or resulting from Employee's work with Employer or from Employee's knowledge of any proprietary, technical or\nbusiness information possessed or owned by Employer under paragraph 4 above, belongs to Employer. All such works of authorship\nshall be works made for hire. Until proven otherwise, any invention shall be presumed to have been conceived during such\nemployment if, within one (1) year after termination of such employment, it is disclosed to others, completed, or it has a copyright\nnotice affixed thereto or a patent application filed thereon.\nEmployee will promptly disclose to Employer all trade secrets, inventions, works of authorship, and information which belong\nto\nEmployer as set forth herein; and Employee will assign to Employer, or to others as directed by Employer, all of Employee's interest\nin such inventions and works of authorship, and will execute any papers and do any acts which Employer may consider necessary to\nsecure to it any and all rights relating to such inventions and works of authorship, including all patents and copyrights (and renewals\nthereof) in any country.\nPursuant to Minnesota Statute 181.78, Subd 1, the assignment provisions of this paragraph shall not apply to any ideas,\ndiscoveries, inventions or improvement for which no equipment, supplies, facility or trade secret information of the Employer was\nused, and which was developed entirely on Employee's own time, and (1) which does not relate (a) directly to the\n-2-\nbusiness of the Employer or (b) to the Employer's actual or demonstrably anticipated research or development; or (2) which does not\nresult from any work performed by Employee for the Employer.\n6. ASSISTANCE TO EMPLOYER. Employee shall give Employer, at Employer's expense, all assistance Employer reasonably\nrequires to perfect, protect, and exercise the rights to all ideas, discoveries, inventions or improvements acquired by Employer\npursuant to the assignment provisions of paragraph 5 of this Agreement.\n7. RETURN OF DOCUMENTS. All documents or other property relating in any way to the business of Employer which are\nconceived or generated by Employee or come into Employee's possession during Employee's employment shall be and remain\nEmployer's\nexclusive property. Employee will, upon termination of employment, leave with or deliver to Employer's possession\nall\ncopies of documents, records, notes, books, directories, telephone and/or address listings, computer media, and similar repositories\ncontaining any confidential information whether prepared or maintained by Employee or another.\n8. NON-COMPETITION AND NON-SOLICITATION During the term of employment with Employer and for one (1) year\nthereafter, Employee will not act as a Competing Person or Organization, act as an employee, owner, partner, consultant, or agent of\nany Competing Person or Organization or render any services, directly or indirectly, to any Competing Person or Organization.\n"Competing Person or Organization" includes any person or organization engaged in, or about to become engaged in, research,\ndevelopment, production, marketing or selling of any product, process or service in which the Employee was involved in any\ncapacity, or about which Employee obtained confidential information while employed by Employer. Competing Person or\nOrganization does not include:\n(A)\nA person or organization involved solely in a business substantially different from those in which Employee was engaged, and\nabout which Employee obtained no confidential information while employed by Employer; or\nA person or organization involved in a business similar to that in which Employee was engaged while employed by Employer\nor\n(B)\nbut which markets and sells exclusively to persons or organizations: (i) which have not purchased any product, process\nservice from Employer within two (2) years prior to Employee's separation from employment; and (ii) about which Employee\nobtained no confidential information while employed by Employer.\nDuring the term of employment with Employer and for one (1) year thereafter, Employee will not individually or in combination\nwith any Competing Person or Organization, market, produce, solicit orders, sell, deliver, create or provide any product, process, or\nservice\nwhich resembles or competes with a product, process or service with which Employee was involved in any capacity while\nemployed by Employer to any person or organization that was a customer or identified prospect of Employer within the two (2) year\nperiod prior to the date of Employee's\n-3-\nseparation from employment or was contacted by the Employee within two (2) years prior to the date of Employee's separation from\nemployment.\nEmployee further agrees that during the term of employment and for one (1) year thereafter, Employee shall not directly or\nindirectly in any manner solicit, assist, or encourage (or assist any other person or entity in soliciting or encouraging) any other\nofficer or employee of Employer to work or otherwise provide services to Employee or to any entity in which Employee participates\nin the ownership, management, operation, or control of, or is connected with in any manner as an independent contractor, consultant,\nor otherwise.\n9. REASONABLENESS OF TERMS. Employee acknowledges that compliance with the covenants contained herein upon\nseparation from employment with Employer shall not impair Employee's ability to earn a livelihood. Employee further acknowledges\nthat the time and area restrictions contained herein are reasonable and not unduly burdensome.\n10. AT-WILL EMPLOYMENT; TERMINATION. Employee understands that Employer is an at-will employment employer.\nThis\nmeans\nthe\nemployment\nrelationship\nmay\nbe\nterminated\nby\neither\nparty\nat\nany\ntime\nand\nfor\nany\nreason.\nThis\nA\ngreement\nis\nnot\na\ncontract for employment for any specific length of time. Notwithstanding the foregoing, if either Employee or Employer desire to\nterminate the employment of Employee, each such party shall give at least 30 days notice to the other party prior to the effective date\nof such termination (except in the case of a termination by Employer for Cause (as defined in paragraph 11(c) below), in which case\nEmployer shall be permitted to terminate Employee's employment immediately upon notice thereof).\n11. SEVERANCE.\na. Involuntary Termination without Cause. In the event that Employer terminates Employee's employment without Cause,\nand provided that such termination of employment does not occur upon or within twelve (12) months after a Change in Control,\nEmployer shall pay Employee severance equal to six (6) months of Employee's then current base salary, provided that such severance\nshall not exceed two times the lesser of (a) the Code S 401(a)(17 compensation limit for the year in which the Termination ate\noccurs, or (b) Employee's annualized compensation based upon the annual rate of pay for services to Employer for the calendar year\nprior to the calendar year in which the Termination Date occurs (adjusted for any increase during that year that was expected to\ncontinue indefinitely if the Employee had not separated from service) Payment of such severance will be conditioned on Employee's\nexecution (and non-rescission) of a standard release of claims in the form provided by Employer at the time of such termination.\nSeverance will be paid to Employee over the six (6) month severance period commencing from and after the Termination Date, in\naccordance with Employer's normal payroll schedule. Severance payments shall be subject to normal payroll withholdings. The\nEmployer and Employee intend the severance payments under this paragraph 11(a) to be a "separation pay plan due to involuntary\nseparation from service" under Treas. Reg. S 1.409A-1(b)(9)(iii).\nb. Involuntary Termination After Change in Control. In the event that Employer terminates Employee's employment\nwithout Cause upon or within twelve (12) months\n-4-\nafter a Change in Control, or in the event that Employee quits for Good Reason upon or within twelve (12) months after a Change in\nControl, Employer shall pay Employee severance equal to twelve months of Employee's then current base salary, as follows:\n(i) Limitation on Payment mount. Such severance shall not exceed a maximum amount of two times the lesser of (x) the\nCode S 401(a)(17) compensation limit for the year in which the Termination Date occurs, or (y) Employee's annualized\ncompensation based upon the annual rate of pay for services to the Service Recipient for the calendar year prior to the calendar year\nin which the Termination Date occurs (adjusted for any increase during that year that was expected to continue indefinitely if the\nEmployee had not separated from service) Severance will be paid to Employee over the twelve-month severance period commencing\nfrom and after the Termination Date, in accordance with Employer's normal payroll schedule. Employer and Employee intend the\nseverance payments under this paragraph 11(b)(i) to be a "separation pay plan due to involuntary separation from service" under\nTreas. Reg. S 1.409A-1(b)(9)(iii).\n(ii) Alternative Form of Payment. If the severance otherwise payable to Employee is reduced to zero (0) by application of\nthe maximum limitation under paragraph 11(b)(i)(y), then Employer shall in the alternative pay Employee severance equal to twelve\nmonths of Employee's then-current base salary commencing from and after the Termination Date, in accordance with the normal\npayroll schedule of Employer, except that any amounts that remain payable as of the Short-Term Deferral Deadline shall be paid in a\nlump sum no later than the Short-Term Deferral Deadline. Employer and Employee intend the severance payments under this\nparagraph 11(b)(ii) to constitute a short-term deferral under Treas. Reg. S 1.409A-1(b)(4).\n(iii) Other Conditions Payment of such severance under this paragraph 11(b) will be conditioned on Employee's execution\n(and non-rescission) of a standard release of claims in the form provided by Employer at the time of such termination. If Employee's\nemployment is terminated without Cause under conditions such that he/she is entitled to severance payments under this paragraph\n11(b), then Employee shall be entitled to severance payments only under this paragraph 11(b) and shall not be entitled to any\nseverance payments under paragraph 11(a) of this Agreement. Severance payments shall be subject to normal payroll withholdings.\nc. Definitions. For purposes of this greement, the following terms shall have the following meanings:\n(i) "Cause" and "Change in Control" shall have the meanings ascribed to those terms as set forth in the SPS Commerce\nInc. 2001 Stock Option Plan (the "Stock Option Plan"), as amended.\n(ii) "Employer" shall include any current or future successor, parent, subsidiary, affiliate or other joint venture partner to\nwhich any right or obligation has been assigned or delegated by SPS Commerce, Inc. or by operation of law.\n-5-\n(iii) "G ood Reason" shall mean a material reduction in Employee's then-current base salary at the time of the Change in\nControl or a material reduction in Employee's employment responsibilities following such Change in Control, in each case without\nEmployee's consent, provided that Employee first gives notice of the material reduction giving rise to Good Reason to the Employer\nwithin ninety (90) days of the first occurrence of the reduction, and provided further that upon giving notice Employee provides\nEmployer 30 days in which to remedy the reduction and not be required to pay the severance amount set forth in paragraph 11(b).\nNotwithstanding anything to the contrary in this paragraph 11(c), Employee shall not be deemed to have quit for Good Reason, and\nEmployee shall not be entitled to payments upon his/her resignation under this A greement, unless Employee's Termination Date\nfollowing his/her resignation for Good Reason occurs within two (2) years following the first occurrence of the reduction.\n(iv) "Service Recipient" shall have the meaning set forth in Treas. Reg. S 1.409A-1(g)\n(v) "Short-Term Deferral Deadline" shall mean the date that is the 15th day of the third month following the end of the later\nof the calendar year, or the Service Recipient's taxable year, in which the Termination ate occurs.\n(vi) "Termination Date" shall mean the date upon which Employee's termination of employment with Employer is\neffective. For purposes of paragraph 11 of this Agreement only, the Termination Date shall mean the date on which a "separation\nfrom service" has occurred for purposes of Section 409A of the Code and the regulations and guidance thereunder.\n12. SURVIVAL OF OBLIGATIONS. All provisions of this Agreement relating to discoveries, confidential information trade\nsecrets, competitive activities, and ownership of proprietary property, shall survive termination of the employment relationship\nbetween Employee and Employer.\n13. MODIFICATION OF AGREEMENT. No waiver or modification of this Agreement or of any covenant, condition, or\nlimitation herein contained shall be valid unless in writing and duly executed by both parties.\n14. CHOICE OF LAW, JURISDICTION, AND VENUE. The validity, construction and performance of this A greement shall\nbe governed by, and construed in accordance with, the laws of the State of Minnesota, without reference to any choice of laws\nprovisions thereof. The parties further agree that any litigation or proceeding arising out of, or relating to, this A greement (whether\nthe same sounds in tort or contract or both) shall be commenced and maintained in a federal or state court located in Hennepin\nCounty, Minnesota, and for such purpose the parties consent to any such court's exercise of personal jurisdiction over them.\n15. INJUNCTIVE RELIEF ATTORNEY'S FEES. In recognition of the irreparable harm that violation of this greement\ncould cause Employer, Employee agrees that, in addition to any relief afforded by law, an injunction against such violation or\nviolations may\n-6-\nbe issued against Employee, it being understood by the parties that both damages and an injunction shall be proper modes of relief\nand not considered alternative remedies. In the event of any such violation(s), Employee agrees to pay the reasonable attorneys' fees\nincurred by Employer in the enforcement of any of its rights with respect to said violation(s), in addition to the actual damages\nsustained by Employer as a result thereof.\n16. ASSIGNMENTS. This A greement is personal in nature and cannot be assigned by Employee. The terms, conditions,\ncovenants, and representations herein shall inure to and be binding upon the heirs and representatives of Employee and shall inure to\nthe benefit of and shall be binding upon the successors and assigns of Employer.\n17. SEVERABILITY. A greements and covenants contained herein are severable, and in the event any of them shall be held to be\ninvalid by any competent court, this A greement shall be interpreted as if such invalid agreement or covenants were not contained\nherein.\n18. INTERPRETATION. This greement is intended to satisfy, or be exempt from, the requirements of Section 409A( 09A(a)(2), (3),\nand (4) of the Code, including current and future guidance and regulations interpreting such provisions, and should be interpreted\naccordingly.\n19. TAXES. Employer may withhold from any amounts payable under this A greement such federal, state and local income and\nemployment taxes as Employer shall determine are required to be withheld pursuant to any applicable law or regulation. Employee\nshall be solely responsible for the payment of all taxes due and owing with respect to wages, benefits, and other compensation\nprovided to him/her hereunder.\n20. COMPLETE AGREEMENT This Agreement and any stock option agreements between Employer and Employee contain\nthe complete agreement concerning the terms and conditions of the employment arrangement between the parties and shall, as of the\neffective date hereof, supersede all other agreements between the parties, including without limitation the Prior A greement. The\nparties stipulate that neither of them has made any representation with respect to the subject matter of this A greement or any\nrepresentations including the execution and delivery hereof except such representations as are specifically set forth herein and the\nparties hereto acknowledge that they have relied on their own judgment in entering into this A greement.\nSPS COMMERCE, INC.\nEMPLOYEE\nEMPLOYER\nBy:\nBy:\nIts:\nDate:\nDate:\n-7-	Exhibit 10.21\nAT-WILL CONFIDENTIALITY AGREEMENT\nREGARDING\nCERTAIN TERMS AND CONDITIONS\nOF EMPLOYMENT\nAT SPS COMMERCE, INC.\nTHIS AMENDED AND RESTATED AGREEMENT (the “Agreement”) dated as of , 2008 (the “Effective Date”) is made\nbetween\n,\n,\n, MN (hereinafter referred to as “Employee”) and SPS Commerce, Inc., a Delaware corporation,\nwith offices at 333 South Seventh Street, Suite 1000, Minneapolis, Minnesota 55402 (hereinafter referred to as “Employer”);\nWHEREAS, Employer is engaged in the business of developing, marketing and distributing computer software products and\nservices;\nWHEREAS, Employee has knowledge and experience in the above-designated business;\nWHEREAS, Employee and Employer are parties to an At-Will Confidentiality Agreement Regarding Certain Terms and\nConditions of Employment at SPS Commerce, Inc., dated\n(the “Prior Agreement”), which the parties desire to amend and\nrestate in its entirety with this Agreement;\nWHEREAS, Employer and Employee desire to amend, modify, and restate the Prior Agreement to comply with the requirements\nof Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and with the intent to exclude amounts payable as\nseverance from deferred compensation under Code Section 409A(a)(1); and\nWHEREAS, Employee acknowledges the receipt of good and valuable consideration from Employer in support of the Prior\nAgreement, and Employee further acknowledges and agrees that such consideration shall, together with the benefits hereunder,\nsupport the restatement of his/her obligations in this Agreement.\nFor the reasons set forth above, and in consideration of the mutual promises and agreements hereinafter set forth, Employer and\nEmployee agree as follows:\n1. EMPLOYMENT. Employee shall serve as\n, subject to the general supervision and pursuant to the order, advice, and\ndirection of Employer. Employee shall perform such duties as are customarily performed by one holding such position in other, same,\nor similar businesses or enterprises as that engaged in by Employer, and shall also additionally render such other and unrelated\nservices and duties as may reasonably be assigned to him/her from time to time by Employer.\n2. BEST EFFORTS OF EMPLOYEE. Employee agrees that he/she will at all times faithfully, industriously, and to the best of\nhis/her ability, experience and talents, perform all of the duties that may be required of and from his/her pursuant to the express and\nimplicit terms hereof, to the reasonable satisfaction of Employer.\n-1-\n3. OTHER EMPLOYMENT. Employee shall devote all of his/her time, attention, knowledge, and skills solely to the business\nand interest of Employer.\n4. CONFIDENTIALITY AND TRADE SECRETS. Employee will not disclose, use, reveal, disseminate or transfer any\nconfidential information acquired by Employee to any outside party, except as directly required in the performance of Employee’s\nduties for Employer or as required by law. Confidential information includes, but is not limited to, information regarding Employer’s\nproducts, processes, services, research, development, inventions, computer media, operations, manufacture, purchasing, accounting,\nfinancial data, engineering, sales, marketing, merchandising, selling, payroll, customer lists, credit classification, record, statistics,\ncontracts and suppliers which was obtained by Employee while employed by Employer or as a consequence of such employment\nwith Employer and not generally known. The foregoing is all deemed as confidential information and/or a trade secret, whether or not\nsuch information is clearly marked as “Confidential” or as a “Trade Secret”, the parties hereto stipulating that as between them the\nsame are important, material, confidential and constitute trade secrets, and as such gravely affect the effective and successful conduct\nof Employer’s business and goodwill. Confidential information also includes similar information belonging to Employer’s customers\nwhich Employee may gain access to in rendering services to any such customer on behalf of Employer.\n5. DISCLOSURE AND ASSIGNMENT. Employee agrees that all trade secrets, all inventions and patents, except those\nexcluded from any obligation to assign to Employer as a matter of law by any applicable state statute existing at the time such\ninvention was made, all works of authorship (including, but not limited to, illustrations, writing, mask works, software and computer\nprograms, and other programming documentation) and all other business or technical information created, prepared or conceived by\nEmployee, either alone or with others, while employed by Employer and related to the existing or contemplated business or research\nof Employer, or resulting from Employee’s work with Employer or from Employee’s knowledge of any proprietary, technical or\nbusiness information possessed or owned by Employer under paragraph 4 above, belongs to Employer. All such works of authorship\nshall be works made for hire. Until proven otherwise, any invention shall be presumed to have been conceived during such\nemployment if, within one (1) year after termination of such employment, it is disclosed to others, completed, or it has a copyright\nnotice affixed thereto or a patent application filed thereon.\nEmployee will promptly disclose to Employer all trade secrets, inventions, works of authorship, and information which belong to\nEmployer as set forth herein; and Employee will assign to Employer, or to others as directed by Employer, all of Employee’s interest\nin such inventions and works of authorship, and will execute any papers and do any acts which Employer may consider necessary to\nsecure to it any and all rights relating to such inventions and works of authorship, including all patents and copyrights (and renewals\nthereof) in any country.\nPursuant to Minnesota Statute 181.78, Subd. 1, the assignment provisions of this paragraph shall not apply to any ideas,\ndiscoveries, inventions or improvement for which no equipment, supplies, facility or trade secret information of the Employer was\nused, and which was developed entirely on Employee’s own time, and (1) which does not relate (a) directly to the\n-2-\nbusiness of the Employer or (b) to the Employer’s actual or demonstrably anticipated research or development; or (2) which does not\nresult from any work performed by Employee for the Employer.\n6. ASSISTANCE TO EMPLOYER. Employee shall give Employer, at Employer’s expense, all assistance Employer reasonably\nrequires to perfect, protect, and exercise the rights to all ideas, discoveries, inventions or improvements acquired by Employer\npursuant to the assignment provisions of paragraph 5 of this Agreement.\n7. RETURN OF DOCUMENTS. All documents or other property relating in any way to the business of Employer which are\nconceived or generated by Employee or come into Employee’s possession during Employee’s employment shall be and remain\nEmployer’s exclusive property. Employee will, upon termination of employment, leave with or deliver to Employer’s possession all\ncopies of documents, records, notes, books, directories, telephone and/or address listings, computer media, and similar repositories\ncontaining any confidential information whether prepared or maintained by Employee or another.\n8. NON-COMPETITION AND NON-SOLICITATION. During the term of employment with Employer and for one (1) year\nthereafter, Employee will not act as a Competing Person or Organization, act as an employee, owner, partner, consultant, or agent of\nany Competing Person or Organization or render any services, directly or indirectly, to any Competing Person or Organization.\n“Competing Person or Organization” includes any person or organization engaged in, or about to become engaged in, research,\ndevelopment, production, marketing or selling of any product, process or service in which the Employee was involved in any\ncapacity, or about which Employee obtained confidential information while employed by Employer. Competing Person or\nOrganization does not include:\n(A)\nA person or organization involved solely in a business substantially different from those in which Employee was engaged, and\nabout which Employee obtained no confidential information while employed by Employer; or\n(B)\nA person or organization involved in a business similar to that in which Employee was engaged while employed by Employer\nbut which markets and sells exclusively to persons or organizations: (i) which have not purchased any product, process or\nservice from Employer within two (2) years prior to Employee’s separation from employment; and (ii) about which Employee\nobtained no confidential information while employed by Employer.\nDuring the term of employment with Employer and for one (1) year thereafter, Employee will not, individually or in combination\nwith any Competing Person or Organization, market, produce, solicit orders, sell, deliver, create or provide any product, process, or\nservice which resembles or competes with a product, process or service with which Employee was involved in any capacity while\nemployed by Employer to any person or organization that was a customer or identified prospect of Employer within the two (2) year\nperiod prior to the date of Employee’s\n-3-\nseparation from employment or was contacted by the Employee within two (2) years prior to the date of Employee’s separation from\nemployment.\nEmployee further agrees that during the term of employment and for one (1) year thereafter, Employee shall not directly or\nindirectly in any manner solicit, assist, or encourage (or assist any other person or entity in soliciting or encouraging) any other\nofficer or employee of Employer to work or otherwise provide services to Employee or to any entity in which Employee participates\nin the ownership, management, operation, or control of, or is connected with in any manner as an independent contractor, consultant,\nor otherwise.\n9. REASONABLENESS OF TERMS. Employee acknowledges that compliance with the covenants contained herein upon\nseparation from employment with Employer shall not impair Employee’s ability to earn a livelihood. Employee further acknowledges\nthat the time and area restrictions contained herein are reasonable and not unduly burdensome.\n10. AT -WILL EMPLOYMENT; TERMINATION. Employee understands that Employer is an at-will employment employer.\nThis means the employment relationship may be terminated by either party at any time and for any reason. This Agreement is not a\ncontract for employment for any specific length of time. Notwithstanding the foregoing, if either Employee or Employer desire to\nterminate the employment of Employee, each such party shall give at least 30 days notice to the other party prior to the effective date\nof such termination (except in the case of a termination by Employer for Cause (as defined in paragraph 11(c) below), in which case\nEmployer shall be permitted to terminate Employee’s employment immediately upon notice thereof).\n11. SEVERANCE.\na. Involuntary Termination without Cause. In the event that Employer terminates Employee’s employment without Cause,\nand provided that such termination of employment does not occur upon or within twelve (12) months after a Change in Control,\nEmployer shall pay Employee severance equal to six (6) months of Employee’s then current base salary, provided that such severance\nshall not exceed two times the lesser of (a) the Code § 401(a)(17) compensation limit for the year in which the Termination Date\noccurs, or (b) Employee’s annualized compensation based upon the annual rate of pay for services to Employer for the calendar year\nprior to the calendar year in which the Termination Date occurs (adjusted for any increase during that year that was expected to\ncontinue indefinitely if the Employee had not separated from service). Payment of such severance will be conditioned on Employee’s\nexecution (and non-rescission) of a standard release of claims in the form provided by Employer at the time of such termination.\nSeverance will be paid to Employee over the six (6) month severance period commencing from and after the Termination Date, in\naccordance with Employer’s normal payroll schedule. Severance payments shall be subject to normal payroll withholdings. The\nEmployer and Employee intend the severance payments under this paragraph 11(a) to be a “separation pay plan due to involuntary\nseparation from service” under Treas. Reg. § 1.409A-1(b)(9)(iii).\nb. Involuntary Termination After Change in Control. In the event that Employer terminates Employee’s employment\nwithout Cause upon or within twelve (12) months\n-4-\nafter a Change in Control, or in the event that Employee quits for Good Reason upon or within twelve (12) months after a Change in\nControl, Employer shall pay Employee severance equal to twelve months of Employee’s then current base salary, as follows:\n(i) Limitation on Payment Amount. Such severance shall not exceed a maximum amount of two times the lesser of (x) the\nCode § 401(a)(17) compensation limit for the year in which the Termination Date occurs, or (y) Employee’s annualized\ncompensation based upon the annual rate of pay for services to the Service Recipient for the calendar year prior to the calendar year\nin which the Termination Date occurs (adjusted for any increase during that year that was expected to continue indefinitely if the\nEmployee had not separated from service). Severance will be paid to Employee over the twelve-month severance period commencing\nfrom and after the Termination Date, in accordance with Employer’s normal payroll schedule. Employer and Employee intend the\nseverance payments under this paragraph 11(b)(i) to be a “separation pay plan due to involuntary separation from service” under\nTreas. Reg. § 1.409A-1(b)(9)(iii).\n(ii) Alternative Form of Payment. If the severance otherwise payable to Employee is reduced to zero (0) by application of\nthe maximum limitation under paragraph 11(b)(i)(y), then Employer shall in the alternative pay Employee severance equal to twelve\nmonths of Employee’s then-current base salary commencing from and after the Termination Date, in accordance with the normal\npayroll schedule of Employer, except that any amounts that remain payable as of the Short-Term Deferral Deadline shall be paid in a\nlump sum no later than the Short-Term Deferral Deadline. Employer and Employee intend the severance payments under this\nparagraph 11(b)(ii) to constitute a short-term deferral under Treas. Reg. § 1.409A-1(b)(4).\n(iii) Other Conditions. Payment of such severance under this paragraph 11(b) will be conditioned on Employee’s execution\n(and non-rescission) of a standard release of claims in the form provided by Employer at the time of such termination. If Employee’s\nemployment is terminated without Cause under conditions such that he/she is entitled to severance payments under this paragraph\n11(b), then Employee shall be entitled to severance payments only under this paragraph 11(b) and shall not be entitled to any\nseverance payments under paragraph 11(a) of this Agreement. Severance payments shall be subject to normal payroll withholdings.\nc. Definitions. For purposes of this Agreement, the following terms shall have the following meanings:\n(i) “Cause” and “Change in Control” shall have the meanings ascribed to those terms as set forth in the SPS Commerce,\nInc. 2001 Stock Option Plan (the “Stock Option Plan”), as amended.\n(ii) “Employer” shall include any current or future successor, parent, subsidiary, affiliate or other joint venture partner to\nwhich any right or obligation has been assigned or delegated by SPS Commerce, Inc. or by operation of law.\n-5-\n(iii) “Good Reason” shall mean a material reduction in Employee’s then-current base salary at the time of the Change in\nControl or a material reduction in Employee’s employment responsibilities following such Change in Control, in each case without\nEmployee’s consent, provided that Employee first gives notice of the material reduction giving rise to Good Reason to the Employer\nwithin ninety (90) days of the first occurrence of the reduction, and provided further that upon giving notice Employee provides\nEmployer 30 days in which to remedy the reduction and not be required to pay the severance amount set forth in paragraph 11(b).\nNotwithstanding anything to the contrary in this paragraph 11(c), Employee shall not be deemed to have quit for Good Reason, and\nEmployee shall not be entitled to payments upon his/her resignation under this Agreement, unless Employee’s Termination Date\nfollowing his/her resignation for Good Reason occurs within two (2) years following the first occurrence of the reduction.\n(iv) “Service Recipient” shall have the meaning set forth in Treas. Reg. § 1.409A-1(g).\n(v) “Short-Term Deferral Deadline” shall mean the date that is the 15th day of the third month following the end of the later\nof the calendar year, or the Service Recipient’s taxable year, in which the Termination Date occurs.\n(vi) “Termination Date” shall mean the date upon which Employee’s termination of employment with Employer is\neffective. For purposes of paragraph 11 of this Agreement only, the Termination Date shall mean the date on which a “separation\nfrom service” has occurred for purposes of Section 409A of the Code and the regulations and guidance thereunder.\n12. SURVIVAL OF OBLIGATIONS. All provisions of this Agreement relating to discoveries, confidential information, trade\nsecrets, competitive activities, and ownership of proprietary property, shall survive termination of the employment relationship\nbetween Employee and Employer.\n13. MODIFICATION OF AGREEMENT. No waiver or modification of this Agreement or of any covenant, condition, or\nlimitation herein contained shall be valid unless in writing and duly executed by both parties.\n14. CHOICE OF LAW, JURISDICTION, AND VENUE. The validity, construction and performance of this Agreement shall\nbe governed by, and construed in accordance with, the laws of the State of Minnesota, without reference to any choice of laws\nprovisions thereof. The parties further agree that any litigation or proceeding arising out of, or relating to, this Agreement (whether\nthe same sounds in tort or contract or both) shall be commenced and maintained in a federal or state court located in Hennepin\nCounty, Minnesota, and for such purpose the parties consent to any such court’s exercise of personal jurisdiction over them.\n15. INJUNCTIVE RELIEF — ATTORNEY’S FEES. In recognition of the irreparable harm that violation of this Agreement\ncould cause Employer, Employee agrees that, in addition to any relief afforded by law, an injunction against such violation or\nviolations may\n-6-\nbe issued against Employee, it being understood by the parties that both damages and an injunction shall be proper modes of relief\nand not considered alternative remedies. In the event of any such violation(s), Employee agrees to pay the reasonable attorneys’ fees\nincurred by Employer in the enforcement of any of its rights with respect to said violation(s), in addition to the actual damages\nsustained by Employer as a result thereof.\n16. ASSIGNMENTS. This Agreement is personal in nature and cannot be assigned by Employee. The terms, conditions,\ncovenants, and representations herein shall inure to and be binding upon the heirs and representatives of Employee and shall inure to\nthe benefit of and shall be binding upon the successors and assigns of Employer.\n17. SEVERABILITY. Agreements and covenants contained herein are severable, and in the event any of them shall be held to be\ninvalid by any competent court, this Agreement shall be interpreted as if such invalid agreement or covenants were not contained\nherein.\n18. INTERPRETATION. This Agreement is intended to satisfy, or be exempt from, the requirements of Section 409A(a)(2), (3),\nand (4) of the Code, including current and future guidance and regulations interpreting such provisions, and should be interpreted\naccordingly.\n19. TAXES. Employer may withhold from any amounts payable under this Agreement such federal, state and local income and\nemployment taxes as Employer shall determine are required to be withheld pursuant to any applicable law or regulation. Employee\nshall be solely responsible for the payment of all taxes due and owing with respect to wages, benefits, and other compensation\nprovided to him/her hereunder.\n20. COMPLETE AGREEMENT. This Agreement and any stock option agreements between Employer and Employee contain\nthe complete agreement concerning the terms and conditions of the employment arrangement between the parties and shall, as of the\neffective date hereof, supersede all other agreements between the parties, including without limitation the Prior Agreement. The\nparties stipulate that neither of them has made any representation with respect to the subject matter of this Agreement or any\nrepresentations including the execution and delivery hereof except such representations as are specifically set forth herein and the\nparties hereto acknowledge that they have relied on their own judgment in entering into this Agreement.\nSPS COMMERCE, INC.\nEMPLOYEE\nEMPLOYER\nBy:\nBy:\nIts:\nDate:\nDate:\n-7-
+c0386cee910f8b8a7c2679297e5dfedf.pdf	effective_date jurisdiction party term	EX-4.5 2 dex45.htm EMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nExhibit 4.5\nCTRIP.COM INTERNATIONAL, LTD.\nEMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nEMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nThis Employment and Confidentiality Agreement (the “Agreement”) is made as of this 1st December day of 2005 (“Effective Date”) by and\nbetween Ctrip.com International, Ltd. (the “Company”) and Ms. Jie Sun (the “Employee”).\n(The Company and the Employee are hereinafter referred to individually as a “Party” and collectively as the “Parties”.)\nWHEREAS, the Company desires to engage the services of Employee and the Employee desires to perform such services upon the terms and\nconditions set forth below.\nNOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements hereafter set forth, the Parties agree as follows:\nARTICLE 1 APPOINTMENT\n1.1 Subject to the terms and conditions herein, the Company agrees to employ Employee and cause its subsidiary Ctrip Computer Technology\n(Shanghai) Limited (“Ctrip Shanghai”) to employ Employee as the Chief Financial Officer of the Company and Ctrip Shanghai, and Employee\nagrees to serve the Company and Ctrip Shanghai in such capacity, and/or in such other capacity as the Company and the Employee may from\ntime to time agree upon, on the terms set out in this Agreement (“Appointment”).\nARTICLE 2 DUTIES\n2.1 The Employee shall be responsible for financial management of the Company and Ctrip Shanghai in accordance with this Agreement, the\nMemorandum and Articles of Association of the Company (the “Articles of Association”), and the guidelines, policies and procedures of the\nCompany approved from time to time by the Board.\n2.2 The Employee shall use his best endeavor to perform Employee’s duties hereunder and hereby agrees that Employee shall not, without the\nprior written consent of the Board, become an employee of any entity other than the Company and shall not be concerned or interested in any\nother business directly competitive with that carried on by the Company, provided that nothing in this clause shall preclude the Employee from\nholding or being otherwise interested in any shares or other securities of any company any part of those share capital is listed or dealt in on any\nstock exchange or recognized securities market anywhere and the Employee should notifies the Company in writing of his interest in such\nshares or securities in a timely manner and with such details and particulars as the Company may reasonably require.\n2\nARTICLE 3 REMUNERATION\n3.1 In consideration for the services rendered by the Employee to the Company and Ctrip Shanghai hereunder, the Company shall cause Ctrip\nShanghai to pay to the Employee a salary (the “Salary”) consisting of (i) a fixed component and (ii) a variable component as indicated in\nAppendix 1.\n3.2 Salary shall be deemed to accrue from day to day, with the first monthly installment calculated from the Effective Date and the last monthly\ninstallment calculated down to the Expiration Date, or, in the event of early termination, to the date this Agreement is terminated, whichever is\nearlier.\n3.3 The Employee shall be solely responsible for all individual income tax and any other tax whatsoever imposed under applicable law of the\njurisdiction of the Company and Ctrip Shanghai, or otherwise on the Salary and any other amounts paid to the Employee by the Company for\nEmployee’s employment.\n3.4 The Company or Ctrip Shanghai shall reimburse travel, hotel and other out-of-pocket expenses properly incurred by the Employee in the\ncourse of Employee’s employment.\nARTICLE 4 PAID HOLIDAY AND SICK LEAVE\n4.1 The Employee shall be paid in full during any period of absence from work due to sickness or injury not exceeding 15 working days in any\nperiod of 12 months, and to the production of satisfactory evidence from a qualified medical practitioner in respect of any period of absence in\nexcess of 14 consecutive working days. The Employee’s salary during any period of absence due to sickness or injury shall be inclusive of any\nsickness allowance or other amount to which he is entitled from the Company.\n4.2 The Employee shall be entitled to a 5 day vacation days in the first year, and the number of vacation days will increase to 7 days in the second\nyear, 9 days in the third year, 11 days in the fourth year, 13 days in the fifth year and 15 days in the sixth year. Any entitlement to holiday\nremaining at the end of any contract year may not be carried forward to the next year.\nARTICLE 5 CONFIDENTIALITY\n5.1 Save insofar as such information is already lawfully in the public domain, the Employee shall keep secret and shall not at any time (whether\nduring the Term or thereafter) use for Employee’s own or any third party’s advantage, or reveal to any person, firm, company or organization\nand shall use Employee’s best endeavors to prevent the publication or disclosure of all Confidential Information (as defined herein below).\n5.2 If the Employee breaches this obligation of confidentiality, the Employee shall be liable to the Company for all damages (direct or\nconsequential) incurred as a result of the Employee’s breach.\n3\n5.3 The restrictions in this Article 5 shall not apply to any disclosure or use authorized by the Board or required by law or by the intended\nperformance of this Agreement.\n5.4\n“Confidential Information”, for the purpose of this Agreement, shall mean information relating to the business, customers, products and\naffairs of the Company (including without limitation marketing information) deemed confidential by the Company, treated by the Company or\nwhich the Employee knows or ought reasonably to have known to be confidential, and trade secrets, including without limitation designs,\nprocesses, pricing policies, methods, inventions, technology, technical data, financial information and know-how relating to the business of the\nCompany.\nFor purposes of Articles 5 and 6 of this Agreement, the Company shall include all subsidiaries and affiliated Chinese entities of the Company,\nincluding without limitation, Ctrip.com (Hong Kong) Limited, Ctrip Shanghai, and Ctrip Travel Information Technology (Shanghai) Limited.\n5.5 All notes, memoranda, records, drawings, designs, sketches, writing (by whatever medium kept or made) concerning the business of the\nCompany or customers of the Company made or received by the Employee during the course of the Employee’s employment shall be and\nremain the exclusive property of the Company and shall be handed over by the Employee to the Company upon the request of the Company at\nany time during the course of Employee’s employment and at the termination of this Agreement or in any event upon Employee’s leaving the\nservice of the Company.\nARTICLE 6 NON-COMPETITION\n6.l In consideration of the Salary paid to the Employee by the Company, the Employee agrees that during the Term and for a period of two\n(2) years following the termination or expiration of this Agreement (for whatever reason):\n(a) Employee will not approach clients, customers or contacts of the Company or other persons or entities introduced to Employee in\nEmployee’s capacity as a representative of the Company for the purposes of doing business with such persons or entities and will not\ninterfere with the business relationship between the Company and such persons and/or entities;\n(b) unless expressly consented to by the Company, Employee will not assume employment with or provide services as a director or\notherwise for any competitor of the Company, or engage, whether as principal, partner, licensor or otherwise, in any business which is in\ndirect or indirect competition with the business of the Company; and\n(c) unless expressly consented to by the Company, Employee will not seek directly or indirectly, by the offer of alternative employment or\nother inducement whatsoever, to solicit the services of any employee of the Company employed as at the date of such termination, or in\nthe year preceding such termination.\n4\n6.2 The provisions provided in Article 6.1 shall be separate and severable and enforceable independently of each other and independent of any\nother provision of this Agreement.\n6.3 The provisions contained in Article 6.1 are considered reasonable by the Parties but, in the event that any such provisions should be found to\nbe void under relevant PRC laws and regulations but would be valid if some part thereof was deleted or the period or area of application\nreduced, such provisions shall apply with such modification as may be necessary to make them valid and effective.\nARTICLE 7 TERMINATION\n7.1 Termination for Convenience. The Company may, terminate the Appointment by giving one month notice in writing to the Employee or the\nEmployee may also terminate the Appointment by giving one month notice in writing to the company.\n7.2 Termination for Cause.\nThe employment of the Employee may be terminated by the Company:\n(a) If the Employee is guilty of any gross default or gross misconduct in connection with or affecting the business of the Company to which\nhe is required by this Agreement to render services; or\n(b) If the Employee is convicted of any arrestable criminal offence.\n7.3 On termination of this Agreement for whatever reason (and whether in breach of contract or otherwise) the Employee shall deliver forthwith to\nthe Company all books, documents, papers (including copies), materials, credit cards, the company car and car keys (if any) and all other\nproperty relating to the business of or belonging to the Company which is in Employee’s possession or under Employee’s power or control.\nARTICLE 8 ASSIGNMENT\n8.l This Agreement will be binding upon and inure to the benefit of any successor of the Company. Any such successor of the Company will be\ndeemed substituted for the Company under the terms of this Agreement for all purposes. For this purpose, “successor” means any person, firm,\ncorporation or other business entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires all or\nsubstantially all of the assets or business of the Company.\n5\nARTICLE 9 APPLICABLE LAW AND DISPUTE RESOLUTION\n9.1 This validity, interpretation, execution and settlement of any disputes arising from this Agreement shall be governed by the laws of New York,\nUSA.\n9.2 In the case that any one or more of the provisions contained in this Agreement shall be held invalid, illegal or unenforceable in any respect\nunder any applicable law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected\nor impaired thereby.\n9.3 For labor disputes arising from the execution of, or in relation to this Agreement, the Parties shall first try to resolve the dispute through\nfriendly consultations. The Parties may also apply for mediation and/or arbitration in accordance with relevant New York laws and regulations.\nARTICLE 10 MISCELLANEOUS\n10.1 The Parties agree that the rights and obligations set forth in Articles 5, 6, 7.3, 9, and 10 shall survive the termination of this Agreement.\n10.2 This Agreement constitutes the entire agreement and understanding between the Parties and supersedes all other oral and written agreements\nbetween the Company and the Employee regarding the subject matter hereof. The Employee acknowledges that Employee has not entered into\nthis Agreement in reliance upon any representation, warranty or undertaking which is not set forth in this Agreement or expressly referred to in\nit as forming part of the Employee’s contract of employment.\n10.3 Any notice to be given under this Agreement to the Employee may be served by being handed to Employee personally or by being sent by\nrecorded delivery first class post to Employee at Employee’s usual or last known address; and any notice to be given to the Company may be\nserved by being left at or by being sent by recorded delivery first class post to its registered office. Any notice served by post shall be deemed\nto have been served on the day (excluding Sundays and statutory holidays) next following the date of posting and in proving such service it\nshall be sufficient proof that the envelope containing the notice was properly addressed and posted as a prepaid letter by recorded delivery first\nclass post.\n10.4 If one or more provisions of this Agreement are held to be unenforceable under applicable law, thus such provision(s) shall be deemed to be\nexcluded from this Agreement and the balance of this Agreement shall be enforceable in accordance with its terms.\n10.5 The rights and duties of the Employee under this Agreement shall not be subject to alienation, assignment or transfer.\n6\n10.6 The headings of the Articles of this Agreement are for the convenience of the Parties hereto and shall not be deemed a substantive part of this\nAgreement.\n10.7 No change in, or addition to, the terms of this Agreement shall be valid unless in writing and signed by both Parties hereto.\n10.8 This Agreement may be signed in two (2) counterparts and each counterpart shall be deemed to be an original.\n[SIGNATURE PAGE FOLLOWS]\n7\nIN WITNESS WHEREOF this Agreement has been executed on the date first above written.\nCtrip.com International, Ltd.\nEmployee\nSignature: /s/ James Jianzhang Liang\nSignature: /s/ Jie Sun\nName:\nJames Jianzhang Liang\nName:\nJie Sun\n8\nAppendix 1\n[Omitted]\n9	EX-4.5 2 dex45.htm EMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nExhibit 4.5\nCTRIP.COM INTERNATIONAL, LTD.\nEMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nEMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nThis Employment and Confidentiality Agreement (the “Agreement”) is made as of this 1st December day of 2005 (“Effective Date”) by and\nbetween Ctrip.com International, Ltd. (the “Company”) and Ms. Jie Sun (the “Employee”).\n(The Company and the Employee are hereinafter referred to individually as a “Party” and collectively as the “Parties”.)\nWHEREAS, the Company desires to engage the services of Employee and the Employee desires to perform such services upon the terms and\nconditions set forth below.\nNOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements hereafter set forth, the Parties agree as follows:\nARTICLE 1 APPOINTMENT\n1.1  Subject to the terms and conditions herein, the Company agrees to employ Employee and cause its subsidiary Ctrip Computer Technology\n(Shanghai) Limited (“Ctrip Shanghai”) to employ Employee as the Chief Financial Officer of the Company and Ctrip Shanghai, and Employee\nagrees to serve the Company and Ctrip Shanghai in such capacity, and/or in such other capacity as the Company and the Employee may from\ntime to time agree upon, on the terms set out in this Agreement (“Appointment”).\nARTICLE 2 DUTIES\n2.1 The Employee shall be responsible for financial management of the Company and Ctrip Shanghai in accordance with this Agreement, the\nMemorandum and Articles of Association of the Company (the “Articles of Association”), and the guidelines, policies and procedures of the\nCompany approved from time to time by the Board.\n2.2 The Employee shall use his best endeavor to perform Employee’s duties hereunder and hereby agrees that Employee shall not, without the\nprior written consent of the Board, become an employee of any entity other than the Company and shall not be concerned or interested in any\nother business directly competitive with that carried on by the Company, provided that nothing in this clause shall preclude the Employee from\nholding or being otherwise interested in any shares or other securities of any company any part of those share capital is listed or dealt in on any\nstock exchange or recognized securities market anywhere and the Employee should notifies the Company in writing of his interest in such\nshares or securities in a timely manner and with such details and particulars as the Company may reasonably require.\n2\nARTICLE 3 REMUNERATION 3.1\n3.2\n3.3\n3.4\nIn consideration for the services rendered by the Employee to the Company and Ctrip Shanghai hereunder, the Company shall cause Ctrip\nShanghai to pay to the Employee a salary (the “Salary”) consisting of (i) a fixed component and (ii) a variable component as indicated in\nAppendix 1.\nSalary shall be deemed to accrue from day to day, with the first monthly installment calculated from the Effective Date and the last monthly\ninstallment calculated down to the Expiration Date, or, in the event of early termination, to the date this Agreement is terminated, whichever is\nearlier.\nThe Employee shall be solely responsible for all individual income tax and any other tax whatsoever imposed under applicable law of the\njurisdiction of the Company and Ctrip Shanghai, or otherwise on the Salary and any other amounts paid to the Employee by the Company for\nEmployee’s employment.\nThe Company or Ctrip Shanghai shall reimburse travel, hotel and other out-of-pocket expenses properly incurred by the Employee in the\ncourse of Employee’s employment.\nARTICLE 4 PAID HOLIDAY AND SICK LEAVE 4.1\n4.2\nThe Employee shall be paid in full during any period of absence from work due to sickness or injury not exceeding 15 working days in any\nperiod of 12 months, and to the production of satisfactory evidence from a qualified medical practitioner in respect of any period of absence in\nexcess of 14 consecutive working days. The Employee’s salary during any period of absence due to sickness or injury shall be inclusive of any\nsickness allowance or other amount to which he is entitled from the Company.\nThe Employee shall be entitled to a 5 day vacation days in the first year, and the number of vacation days will increase to 7 days in the second\nyear, 9 days in the third year, 11 days in the fourth year, 13 days in the fifth year and 15 days in the sixth year. Any entitlement to holiday\nremaining at the end of any contract year may not be carried forward to the next year.\nARTICLE 5 CONFIDENTIALITY 5.1\n5.2\nSave insofar as such information is already lawfully in the public domain, the Employee shall keep secret and shall not at any time (whether\nduring the Term or thereafter) use for Employee’s own or any third party’s advantage, or reveal to any person, firm, company or organization\nand shall use Employee’s best endeavors to prevent the publication or disclosure of all Confidential Information (as defined herein below).\nIf the Employee breaches this obligation of confidentiality, the Employee shall be liable to the Company for all damages (direct or\nconsequential) incurred as a result of the Employee’s breach.\n5.3\n5.4\n5.5\nThe restrictions in this Article 5 shall not apply to any disclosure or use authorized by the Board or required by law or by the intended\nperformance of this Agreement.\n“Confidential Information”, for the purpose of this Agreement, shall mean information relating to the business, customers, products and\naffairs of the Company (including without limitation marketing information) deemed confidential by the Company, treated by the Company or\nwhich the Employee knows or ought reasonably to have known to be confidential, and trade secrets, including without limitation designs,\nprocesses, pricing policies, methods, inventions, technology, technical data, financial information and know-how relating to the business of the\nCompany.\nFor purposes of Articles 5 and 6 of this Agreement, the Company shall include all subsidiaries and affiliated Chinese entities of the Company,\nincluding without limitation, Ctrip.com (Hong Kong) Limited, Ctrip Shanghai, and Ctrip Travel Information Technology (Shanghai) Limited.\nAll notes, memoranda, records, drawings, designs, sketches, writing (by whatever medium kept or made) concerning the business of the\nCompany or customers of the Company made or received by the Employee during the course of the Employee’s employment shall be and\nremain the exclusive property of the Company and shall be handed over by the Employee to the Company upon the request of the Company at\nany time during the course of Employee’s employment and at the termination of this Agreement or in any event upon Employee’s leaving the\nservice of the Company.\nARTICLE 6 NON-COMPETITION 6.1\nIn consideration of the Salary paid to the Employee by the Company, the Employee agrees that during the Term and for a period of two\n(2) years following the termination or expiration of this Agreement (for whatever reason):\n(a) Employee will not approach clients, customers or contacts of the Company or other persons or entities introduced to Employee in\nEmployee’s capacity as a representative of the Company for the purposes of doing business with such persons or entities and will not\ninterfere with the business relationship between the Company and such persons and/or entities;\n(b) unless expressly consented to by the Company, Employee will not assume employment with or provide services as a director or\notherwise for any competitor of the Company, or engage, whether as principal, partner, licensor or otherwise, in any business which is in\ndirect or indirect competition with the business of the Company; and\n(c) unless expressly consented to by the Company, Employee will not seek directly or indirectly, by the offer of alternative employment or\nother inducement whatsoever, to solicit the services of any employee of the Company employed as at the date of such termination, or in\nthe year preceding such termination.\n6.2\n6.3\nThe provisions provided in Article 6.1 shall be separate and severable and enforceable independently of each other and independent of any\nother provision of this Agreement.\nThe provisions contained in Article 6.1 are considered reasonable by the Parties but, in the event that any such provisions should be found to\nbe void under relevant PRC laws and regulations but would be valid if some part thereof was deleted or the period or area of application\nreduced, such provisions shall apply with such modification as may be necessary to make them valid and effective.\nARTICLE 7 TERMINATION 7.1\n7.2\n7.3\nTermination for Convenience. The Company may, terminate the Appointment by giving one month notice in writing to the Employee or the\nEmployee may also terminate the Appointment by giving one month notice in writing to the company.\nTermination for Cause.\nThe employment of the Employee may be terminated by the Company:\n(a) If the Employee is guilty of any gross default or gross misconduct in connection with or affecting the business of the Company to which\nhe is required by this Agreement to render services; or\n(b) If the Employee is convicted of any arrestable criminal offence.\nOn termination of this Agreement for whatever reason (and whether in breach of contract or otherwise) the Employee shall deliver forthwith to\nthe Company all books, documents, papers (including copies), materials, credit cards, the company car and car keys (if any) and all other\nproperty relating to the business of or belonging to the Company which is in Employee’s possession or under Employee’s power or control.\nARTICLE 8 ASSIGNMENT 8.1\nThis Agreement will be binding upon and inure to the benefit of any successor of the Company. Any such successor of the Company will be\ndeemed substituted for the Company under the terms of this Agreement for all purposes. For this purpose, “successor” means any person, firm,\ncorporation or other business entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires all or\nsubstantially all of the assets or business of the Company.\nARTICLE 9 APPLICABLE LAW AND DISPUTE RESOLUTION 9.1\n9.2\n9.3\nThis validity, interpretation, execution and settlement of any disputes arising from this Agreement shall be governed by the laws of New York,\nUSA.\nIn the case that any one or more of the provisions contained in this Agreement shall be held invalid, illegal or unenforceable in any respect\nunder any applicable law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected\nor impaired thereby.\nFor labor disputes arising from the execution of, or in relation to this Agreement, the Parties shall first try to resolve the dispute through\nfriendly consultations. The Parties may also apply for mediation and/or arbitration in accordance with relevant New York laws and regulations.\nARTICLE 10 MISCELLANEOUS 10.1\n10.2\n10.3\n10.4\n10.5\nThe Parties agree that the rights and obligations set forth in Articles 5, 6, 7.3, 9, and 10 shall survive the termination of this Agreement.\nThis Agreement constitutes the entire agreement and understanding between the Parties and supersedes all other oral and written agreements\nbetween the Company and the Employee regarding the subject matter hereof. The Employee acknowledges that Employee has not entered into\nthis Agreement in reliance upon any representation, warranty or undertaking which is not set forth in this Agreement or expressly referred to in\nit as forming part of the Employee’s contract of employment.\nAny notice to be given under this Agreement to the Employee may be served by being handed to Employee personally or by being sent by\nrecorded delivery first class post to Employee at Employee’s usual or last known address; and any notice to be given to the Company may be\nserved by being left at or by being sent by recorded delivery first class post to its registered office. Any notice served by post shall be deemed\nto have been served on the day (excluding Sundays and statutory holidays) next following the date of posting and in proving such service it\nshall be sufficient proof that the envelope containing the notice was properly addressed and posted as a prepaid letter by recorded delivery first\nclass post.\nIf one or more provisions of this Agreement are held to be unenforceable under applicable law, thus such provision(s) shall be deemed to be\nexcluded from this Agreement and the balance of this Agreement shall be enforceable in accordance with its terms.\nThe rights and duties of the Employee under this Agreement shall not be subject to alienation, assignment or transfer.\n6\n10.6 The headings of the Articles of this Agreement are for the convenience of the Parties hereto and shall not be deemed a substantive part of this\nAgreement.\n10.7 No change in, or addition to, the terms of this Agreement shall be valid unless in writing and signed by both Parties hereto.\n10.8 This Agreement may be signed in two (2) counterparts and each counterpart shall be deemed to be an original.\n[SIGNATURE PAGE FOLLOWS]\n7\nIN WITNESS WHEREOF this Agreement has been executed on the date first above written.\nCtrip.com International, Ltd. Employee\nSignature: /s/ James Jianzhang Liang Signature: /s/ Jie Sun\nName: James Jianzhang Liang Name: Jie Sun\n \nAppendix 1\n[Omitted]	EX-4.5 2 dex45.htm EMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nExhibit 4.5\nCTRIP.COM INTERNATIONAL, LTD.\nEMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nEMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nThis Employment and Confidentiality Agreement (the "Agreement") is made as of this 1st December day of 2005 ("Effective Date") by and\nbetween Ctrip.com International, Ltd. (the "Company") and Ms. Jie Sun (the "Employee").\n(The Company and the Employee are hereinafter referred to individually as a "Party" and collectively as the "Parties".)\nWHEREAS, the Company desires to engage the services of Employee and the Employee desires to perform such services upon the terms and\nconditions set forth below.\nNOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements hereafter set forth, the Parties agree as follows:\nARTICLE 1 APPOINTMENT\n1.1 Subject to the terms and conditions herein, the Company agrees to employ Employee and cause its subsidiary Ctrip Computer Technology\n(Shanghai) Limited ("Ctrip Shanghai") to employ Employee as the Chief Financial Officer of the Company and Ctrip Shanghai, and Employee\nagrees to serve the Company and Ctrip Shanghai in such capacity, and/or in such other capacity as the Company and the Employee may from\ntime to time agree upon, on the terms set out in this Agreement ("Appointment").\nARTICLE 2 DUTIES\n2.1 The Employee shall be responsible for financial management of the Company and Ctrip Shanghai in accordance with this Agreement, the\nMemorandum and Articles of Association of the Company (the "Articles of Association"), and the guidelines, policies and procedures of the\nCompany approved from time to time by the Board.\n2.2\nThe Employee shall use his best endeavor to perform Employee's duties hereunder and hereby agrees that Employee shall not, without the\nprior written consent of the Board, become an employee of any entity other than the Company and shall not be concerned or interested in any\nother business directly competitive with that carried on by the Company, provided that nothing in this clause shall preclude the Employee from\nholding or being otherwise interested in any shares or other securities of any company any part of those share capital is listed or dealt in on any\nstock exchange or recognized securities market anywhere and the Employee should notifies the Company in writing of his interest in such\nshares or securities in a timely manner and with such details and particulars as the Company may reasonably require.\n2\nARTICLE 3 REMUNERATION\n3.1\nIn consideration for the services rendered by the Employee to the Company and Ctrip Shanghai hereunder, the Company shall cause Ctrip\nShanghai to pay to the Employee a salary (the "Salary") consisting of (i) a fixed component and (ii) a variable component as indicated in\nAppendix 1.\n3.2\nSalary shall be deemed to accrue from day to day, with the first monthly installment calculated from the Effective Date and the last monthly\ninstallment calculated down to the Expiration Date, or, in the event of early termination, to the date this Agreement is terminated, whichever is\nearlier.\n3.3 The Employee shall be solely responsible for all individual income tax and any other tax whatsoever imposed under applicable law of the\njurisdiction of the Company and Ctrip Shanghai, or otherwise on the Salary and any other amounts paid to the Employee by the Company for\nEmployee's employment.\n3.4 The Company or Ctrip Shanghai shall reimburse travel, hotel and other out-of-pocket expenses properly incurred by the Employee in the\ncourse of Employee's employment.\nARTICLE 4 PAID HOLIDAY AND SICK LEAVE\n4.1\nThe Employee shall be paid in full during any period of absence from work due to sickness or injury not exceeding 15 working days in any\nperiod of 12 months, and to the production of satisfactory evidence from a qualified medical practitioner in respect of any period of absence in\nexcess of 14 consecutive working days. The Employee's salary during any period of absence due to sickness or injury shall be inclusive of any\nsickness allowance or other amount to which he is entitled from the Company.\n4.2\nThe Employee shall be entitled to a 5 day vacation days in the first year, and the number of vacation days will increase to 7 days in the second\nyear, 9 days in the third year, 11 days in the fourth year, 13 days in the fifth year and 15 days in the sixth year. Any entitlement to holiday\nremaining at the end of any contract year may not be carried forward to the next year.\nARTICLE 5 CONFIDENTIALITY\n5.1\nSave insofar as such information is already lawfully in the public domain, the Employee shall keep secret and shall not at any time (whether\nduring the Term or thereafter) use for Employee's own or any third party's advantage, or reveal to any person, firm, company or organization\nand shall use Employee's best endeavors to prevent the publication or disclosure of all Confidential Information (as defined herein below).\n5.2 If the Employee breaches this obligation of confidentiality, the Employee shall be liable to the Company for all damages (direct or\nconsequential) incurred as a result of the Employee's breach.\n3\n5.3 The restrictions in this Article 5 shall not apply to any disclosure or use authorized by the Board or required by law or by the intended\nperformance of this Agreement.\n5.4\n"Confidential Information", for the purpose of this Agreement, shall mean information relating to the business, customers, products and\naffairs of the Company (including without limitation marketing information) deemed confidentia by the Company, treated by the Company or\nwhich the Employee knows or ought reasonably to have known to be confidential, and trade secrets, including without limitation designs,\nprocesses, pricing policies, methods, inventions, technology, technical data, financial information and know-how relating to the business of the\nCompany.\nFor purposes of Articles 5 and 6 of this Agreement, the Company shall include all subsidiaries and affiliated Chinese entities of the Company,\nincluding without limitation, Ctrip.com (Hong Kong) Limited, Ctrip Shanghai, and Ctrip Travel Information Technology (Shanghai) Limited.\n5.5 All notes, memoranda, records, drawings, designs, sketches, writing (by whatever medium kept or made) concerning the business of the\nCompany or customers of the Company made or received by the Employee during the course of the Employee's employment shall be and\nremain the exclusive property of the Company and shall be handed over by the Employee to the Company upon the request of the Company at\nany time during the course of Employee's employment and at the termination of this Agreement or in any event upon Employee's leaving the\nservice of the Company.\nARTICLE 6 NON-COMPETITION\n6.1\nIn consideration of the Salary paid to the Employee by the Company, the Employee agrees that during the Term and for a period of two\n(2) years following the termination or expiration of this Agreement (for whatever reason):\n(a) Employee will not approach clients, customers or contacts of the Company or other persons or entities introduced to Employee in\nEmployee's capacity as a representative of the Company for the purposes of doing business with such persons or entities and will not\ninterfere with the business relationship between the Company and such persons and/or entities;\n(b)\nunless expressly consented to by the Company, Employee will not assume employment with or provide services as a director or\notherwise for any competitor of the Company, or engage, whether as principal, partner, licensor or otherwise, in any business which is\nin\ndirect or indirect competition with the business of the Company; and\n(c)\nunless expressly consented to by the Company, Employee will not seek directly or indirectly, by the offer of alternative employment or\nother inducement whatsoever, to solicit the services of any employee of the Company employed as at the date of such termination, or in\nthe year preceding such termination.\n4\n6.2 The provisions provided in Article 6.1 shall be separate and severable and enforceable independently of each other and independent of any\nother provision of this Agreement.\n6.3 The provisions contained in Article 6.1 are considered reasonable by the Parties but, in the event that any such provisions should be found to\nbe void under relevant PRC laws and regulations but would be valid if some part thereof was deleted or the period or area of application\nreduced, such provisions shall apply with such modification as may be necessary to make them valid and effective.\nARTICLE 7 TERMINATION\n7.1\nTermination for Convenience. The Company may, terminate the Appointment by giving one month notice in writing to the Employee or the\nEmployee may also terminate the Appointment by giving one month notice in writing to the company.\n7.2 Termination for Cause.\nThe employment of the Employee may be terminated by the Company:\n(a)\nIf the Employee is guilty of any gross default or gross misconduct in connection with or affecting the business of the Company to which\nhe is required by this Agreement to render services; or\n(b) If the Employee is convicted of any arrestable criminal offence.\n7.3\nOn termination of this Agreement for whatever reason (and whether in breach of contract or otherwise) the Employee shall deliver forthwith to\nthe Company all books, documents, papers (including copies), materials, credit cards, the company car and car keys (if any) and all other\nproperty relating to the business of or belonging to the Company which is in Employee's possession or under Employee's power or control.\nARTICLE 8 ASSIGNMENT\n8.1\nThis Agreement will be binding upon and inure to the benefit of any successor of the Company. Any such successor of the Company will be\ndeemed substituted for the Company under the terms of this Agreement for all purposes. For this purpose, "successor" means any person, firm,\ncorporation or other business entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires all or\nsubstantially all of the assets or business of the Company.\n5\nARTICLE 9 APPLICABLE LAW AND DISPUTE RESOLUTION\n9.1\nThis validity, interpretation, execution and settlement of any disputes arising from this Agreement shall be governed by the laws of New York,\nUSA.\n9.2\nIn the case that any one or more of the provisions contained in this Agreement shall be held invalid, illegal or unenforceable in any respect\nunder any applicable law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected\nor impaired thereby.\n9.3 For labor disputes arising from the execution of, or in relation to this Agreement, the Parties shall first try to resolve the dispute through\nfriendly consultations. The Parties may also apply for mediation and/or arbitration in accordance with relevant New York laws and regulations.\nARTICLE 10 MISCELLANEOUS\n10.1 The Parties agree that the rights and obligations set forth in Articles 5, 6, 7.3, 9, and 10 shall survive the termination of this Agreement.\n10.2 This Agreement constitutes the entire agreement and understanding between the Parties and supersedes all other oral and written agreements\nbetween the Company and the Employee regarding the subject matter hereof. The Employee acknowledges that Employee has not entered into\nthis Agreement in reliance upon any representation, warranty or undertaking which is not set forth in this Agreement or expressly referred to in\nit as forming part of the Employee's contract of employment.\n10.3 Any notice to be given under this Agreement to the Employee may be served by being handed to Employee personally or by being sent by\nrecorded delivery first class post to Employee at Employee's usual or last known address; and any notice to be given to the Company may be\nserved by being left at or by being sent by recorded delivery first class post to its registered office. Any notice served by post shall be deemed\nto have been served on the day (excluding Sundays and statutory holidays) next following the date of posting and in proving such service it\nshall be sufficient proof that the envelope containing the notice was properly addressed and posted as a prepaid letter by recorded delivery first\nclass post.\n10.4 If one or more provisions of this Agreement are held to be unenforceable under applicable law, thus such provision(s) shall be deemed to be\nexcluded from this Agreement and the balance of this Agreement shall be enforceable in accordance with its terms.\n10.5 The rights and duties of the Employee under this Agreement shall not be subject to alienation, assignment or transfer.\n6\n10.6 The headings of the Articles of this Agreement are for the convenience of the Parties hereto and shall not be deemed a substantive part of this\nAgreement.\n10.7 No change in, or addition to, the terms of this Agreement shall be valid unless in writing and signed by both Parties hereto.\n10.8 This Agreement may be signed in two (2) counterparts and each counterpart shall be deemed to be an original.\n[SIGNATURE PAGE FOLLOWS]\n7\nIN WITNESS WHEREOF this Agreement has been executed on the date first above written.\nCtrip.com International, Ltd.\nEmployee\nSignature: /s/ James Jianzhang Liang\nSignature: /s/ Jie Sun\nName:\nJames Jianzhang Liang\nName:\nJie Sun\n8\nAppendix 1\n[Omitted]\n9	EX-4.5 2 dex45.htm EMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nExhibit 4.5\nCTRIP.COM INTERNATIONAL, LTD.\nEMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nEMPLOYMENT AND CONFIDENTIALITY AGREEMENT\nThis Employment and Confidentiality Agreement (the “Agreement”) is made as of this 1st December day of 2005 (“Effective Date”) by and\nbetween Ctrip.com International, Ltd. (the “Company”) and Ms. Jie Sun (the “Employee”).\n(The Company and the Employee are hereinafter referred to individually as a “Party” and collectively as the “Parties”.)\nWHEREAS, the Company desires to engage the services of Employee and the Employee desires to perform such services upon the terms and\nconditions set forth below.\nNOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements hereafter set forth, the Parties agree as follows:\nARTICLE 1 APPOINTMENT\n1.1 Subject to the terms and conditions herein, the Company agrees to employ Employee and cause its subsidiary Ctrip Computer Technology\n(Shanghai) Limited (“Ctrip Shanghai”) to employ Employee as the Chief Financial Officer of the Company and Ctrip Shanghai, and Employee\nagrees to serve the Company and Ctrip Shanghai in such capacity, and/or in such other capacity as the Company and the Employee may from\ntime to time agree upon, on the terms set out in this Agreement (“Appointment”).\nARTICLE 2 DUTIES\n2.1 The Employee shall be responsible for financial management of the Company and Ctrip Shanghai in accordance with this Agreement, the\nMemorandum and Articles of Association of the Company (the “Articles of Association”), and the guidelines, policies and procedures of the\nCompany approved from time to time by the Board.\n2.2 The Employee shall use his best endeavor to perform Employee’s duties hereunder and hereby agrees that Employee shall not, without the\nprior written consent of the Board, become an employee of any entity other than the Company and shall not be concerned or interested in any\nother business directly competitive with that carried on by the Company, provided that nothing in this clause shall preclude the Employee from\nholding or being otherwise interested in any shares or other securities of any company any part of those share capital is listed or dealt in on any\nstock exchange or recognized securities market anywhere and the Employee should notifies the Company in writing of his interest in such\nshares or securities in a timely manner and with such details and particulars as the Company may reasonably require.\n2\nARTICLE 3 REMUNERATION\n3.1 In consideration for the services rendered by the Employee to the Company and Ctrip Shanghai hereunder, the Company shall cause Ctrip\nShanghai to pay to the Employee a salary (the “Salary”) consisting of (i) a fixed component and (ii) a variable component as indicated in\nAppendix 1.\n3.2 Salary shall be deemed to accrue from day to day, with the first monthly installment calculated from the Effective Date and the last monthly\ninstallment calculated down to the Expiration Date, or, in the event of early termination, to the date this Agreement is terminated, whichever is\nearlier.\n3.3 The Employee shall be solely responsible for all individual income tax and any other tax whatsoever imposed under applicable law of the\njurisdiction of the Company and Ctrip Shanghai, or otherwise on the Salary and any other amounts paid to the Employee by the Company for\nEmployee’s employment.\n3.4 The Company or Ctrip Shanghai shall reimburse travel, hotel and other out-of-pocket expenses properly incurred by the Employee in the\ncourse of Employee’s employment.\nARTICLE 4 PAID HOLIDAY AND SICK LEAVE\n4.1 The Employee shall be paid in full during any period of absence from work due to sickness or injury not exceeding 15 working days in any\nperiod of 12 months, and to the production of satisfactory evidence from a qualified medical practitioner in respect of any period of absence in\nexcess of 14 consecutive working days. The Employee’s salary during any period of absence due to sickness or injury shall be inclusive of any\nsickness allowance or other amount to which he is entitled from the Company.\n4.2 The Employee shall be entitled to a 5 day vacation days in the first year, and the number of vacation days will increase to 7 days in the second\nyear, 9 days in the third year, 11 days in the fourth year, 13 days in the fifth year and 15 days in the sixth year. Any entitlement to holiday\nremaining at the end of any contract year may not be carried forward to the next year.\nARTICLE 5 CONFIDENTIALITY\n5.1 Save insofar as such information is already lawfully in the public domain, the Employee shall keep secret and shall not at any time (whether\nduring the Term or thereafter) use for Employee’s own or any third party’s advantage, or reveal to any person, firm, company or organization\nand shall use Employee’s best endeavors to prevent the publication or disclosure of all Confidential Information (as defined herein below).\n5.2 If the Employee breaches this obligation of confidentiality, the Employee shall be liable to the Company for all damages (direct or\nconsequential) incurred as a result of the Employee’s breach.\n3\n5.3 The restrictions in this Article 5 shall not apply to any disclosure or use authorized by the Board or required by law or by the intended\nperformance of this Agreement.\n5.4\n“Confidential Information”, for the purpose of this Agreement, shall mean information relating to the business, customers, products and\naffairs of the Company (including without limitation marketing information) deemed confidential by the Company, treated by the Company or\nwhich the Employee knows or ought reasonably to have known to be confidential, and trade secrets, including without limitation designs,\nprocesses, pricing policies, methods, inventions, technology, technical data, financial information and know-how relating to the business of the\nCompany.\nFor purposes of Articles 5 and 6 of this Agreement, the Company shall include all subsidiaries and affiliated Chinese entities of the Company,\nincluding without limitation, Ctrip.com (Hong Kong) Limited, Ctrip Shanghai, and Ctrip Travel Information Technology (Shanghai) Limited.\n5.5 All notes, memoranda, records, drawings, designs, sketches, writing (by whatever medium kept or made) concerning the business of the\nCompany or customers of the Company made or received by the Employee during the course of the Employee’s employment shall be and\nremain the exclusive property of the Company and shall be handed over by the Employee to the Company upon the request of the Company at\nany time during the course of Employee’s employment and at the termination of this Agreement or in any event upon Employee’s leaving the\nservice of the Company.\nARTICLE 6 NON-COMPETITION\n6.l In consideration of the Salary paid to the Employee by the Company, the Employee agrees that during the Term and for a period of two\n(2) years following the termination or expiration of this Agreement (for whatever reason):\n(a) Employee will not approach clients, customers or contacts of the Company or other persons or entities introduced to Employee in\nEmployee’s capacity as a representative of the Company for the purposes of doing business with such persons or entities and will not\ninterfere with the business relationship between the Company and such persons and/or entities;\n(b) unless expressly consented to by the Company, Employee will not assume employment with or provide services as a director or\notherwise for any competitor of the Company, or engage, whether as principal, partner, licensor or otherwise, in any business which is in\ndirect or indirect competition with the business of the Company; and\n(c) unless expressly consented to by the Company, Employee will not seek directly or indirectly, by the offer of alternative employment or\nother inducement whatsoever, to solicit the services of any employee of the Company employed as at the date of such termination, or in\nthe year preceding such termination.\n4\n6.2 The provisions provided in Article 6.1 shall be separate and severable and enforceable independently of each other and independent of any\nother provision of this Agreement.\n6.3 The provisions contained in Article 6.1 are considered reasonable by the Parties but, in the event that any such provisions should be found to\nbe void under relevant PRC laws and regulations but would be valid if some part thereof was deleted or the period or area of application\nreduced, such provisions shall apply with such modification as may be necessary to make them valid and effective.\nARTICLE 7 TERMINATION\n7.1 Termination for Convenience. The Company may, terminate the Appointment by giving one month notice in writing to the Employee or the\nEmployee may also terminate the Appointment by giving one month notice in writing to the company.\n7.2 Termination for Cause.\nThe employment of the Employee may be terminated by the Company:\n(a) If the Employee is guilty of any gross default or gross misconduct in connection with or affecting the business of the Company to which\nhe is required by this Agreement to render services; or\n(b) If the Employee is convicted of any arrestable criminal offence.\n7.3 On termination of this Agreement for whatever reason (and whether in breach of contract or otherwise) the Employee shall deliver forthwith to\nthe Company all books, documents, papers (including copies), materials, credit cards, the company car and car keys (if any) and all other\nproperty relating to the business of or belonging to the Company which is in Employee’s possession or under Employee’s power or control.\nARTICLE 8 ASSIGNMENT\n8.l This Agreement will be binding upon and inure to the benefit of any successor of the Company. Any such successor of the Company will be\ndeemed substituted for the Company under the terms of this Agreement for all purposes. For this purpose, “successor” means any person, firm,\ncorporation or other business entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires all or\nsubstantially all of the assets or business of the Company.\n5\nARTICLE 9 APPLICABLE LAW AND DISPUTE RESOLUTION\n9.1 This validity, interpretation, execution and settlement of any disputes arising from this Agreement shall be governed by the laws of New York,\nUSA.\n9.2 In the case that any one or more of the provisions contained in this Agreement shall be held invalid, illegal or unenforceable in any respect\nunder any applicable law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected\nor impaired thereby.\n9.3 For labor disputes arising from the execution of, or in relation to this Agreement, the Parties shall first try to resolve the dispute through\nfriendly consultations. The Parties may also apply for mediation and/or arbitration in accordance with relevant New York laws and regulations.\nARTICLE 10 MISCELLANEOUS\n10.1 The Parties agree that the rights and obligations set forth in Articles 5, 6, 7.3, 9, and 10 shall survive the termination of this Agreement.\n10.2 This Agreement constitutes the entire agreement and understanding between the Parties and supersedes all other oral and written agreements\nbetween the Company and the Employee regarding the subject matter hereof. The Employee acknowledges that Employee has not entered into\nthis Agreement in reliance upon any representation, warranty or undertaking which is not set forth in this Agreement or expressly referred to in\nit as forming part of the Employee’s contract of employment.\n10.3 Any notice to be given under this Agreement to the Employee may be served by being handed to Employee personally or by being sent by\nrecorded delivery first class post to Employee at Employee’s usual or last known address; and any notice to be given to the Company may be\nserved by being left at or by being sent by recorded delivery first class post to its registered office. Any notice served by post shall be deemed\nto have been served on the day (excluding Sundays and statutory holidays) next following the date of posting and in proving such service it\nshall be sufficient proof that the envelope containing the notice was properly addressed and posted as a prepaid letter by recorded delivery first\nclass post.\n10.4 If one or more provisions of this Agreement are held to be unenforceable under applicable law, thus such provision(s) shall be deemed to be\nexcluded from this Agreement and the balance of this Agreement shall be enforceable in accordance with its terms.\n10.5 The rights and duties of the Employee under this Agreement shall not be subject to alienation, assignment or transfer.\n6\n10.6 The headings of the Articles of this Agreement are for the convenience of the Parties hereto and shall not be deemed a substantive part of this\nAgreement.\n10.7 No change in, or addition to, the terms of this Agreement shall be valid unless in writing and signed by both Parties hereto.\n10.8 This Agreement may be signed in two (2) counterparts and each counterpart shall be deemed to be an original.\n[SIGNATURE PAGE FOLLOWS]\n7\nIN WITNESS WHEREOF this Agreement has been executed on the date first above written.\nCtrip.com International, Ltd.\nEmployee\nSignature: /s/ James Jianzhang Liang\nSignature: /s/ Jie Sun\nName:\nJames Jianzhang Liang\nName:\nJie Sun\n8\nAppendix 1\n[Omitted]\n9
+c2a0229bebde5f504f5dfce35848dda3.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 8 d642137dex99d2.htm EX-99 .(D)(2)\nExhibit 99.(d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE A GREEMENT (this “Agreement”), entered into as of October 9, 2018 (the “Effective Date”), governs the\ndisclosure of information by and between Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300,\nPhiladelphia, PA (“Spark”), and Roche Holdings Inc, a Delaware company having an address at 1 DNA Way, South San Francisco, CA 94080\n(“Company”). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and\nreceiving party herein, shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may\nbe; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co., Ltd, 1-1 Nihonbashi-Muromachi\n2-chome, Chuo-ku, Tokyo, 103-8324 (“Chugai”) unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving\nwritten notice to the Company.\n1. Purpose. This Agreement is made in order for each party to disclose to the other, during the term of this Agreement, such scientific, technical,\nbusiness and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose\nof evaluating the Confidential Information internally in connection with evaluating a possible transaction between the parties relating to one, more\nor all of Spark’s gene therapy product candidates and/or assets (the “Purpose”) under terms that will protect the confidential and proprietary\nnature of such information.\n2. Confidential Information. As used herein, “Confidential Information” will mean any and all scientific, technical, business and financial\ninformation, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of whether tangible,\nintangible, visual, or oral), to the receiving party, before or after the Effective Date. “Confidential Information” includes but is not limited to:\n(a) patent and patent applications; (b) manufacturing, including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade\nsecrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical compounds, assays, biological materials,\ntechniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to\nthe current, future, and proposed products and services of each of the parties, and including without limitation, their respective information\nconcerning research, experimental work, development, design details and specifications, engineering, financial information, procurement\nrequirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst\nreports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.\n3. Obligations. Each receiving party agrees: (a) to use the disclosing party’s Confidential Information solely for the Purpose stated above and\nfor no other reason; (b) to protect the confidentiality of the disclosing party’s Confidential Information; (c) not to disclose any of the disclosing\nparty’s Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its\nAffiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are otherwise bound by\nconfidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees, consultants\nand representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality\nobligations. The receiving party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its employees,\nconsultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential\nInformation, each such copy will contain and state the same confidential or proprietary notices or legends, if any, that appear on the original.\n4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving\nparty can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent court: (a) is already\nknown to the receiving party prior to the disclosing party’s disclosure; (b) is or becomes publicly available through no fault of the receiving party;\n(c) is obtained by the receiving party from a third party; or (d) is independently developed by the receiving party without use of or reference to any\nConfidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing\nexceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving\nparty, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the\npublic domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain\nor in the possession of the receiving party. Notwithstanding anything contained in this Agreement, other than in the case of an External Demand\n(as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any\nof the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidential Information has been made\navailable to the receiving party (such information, “Transaction Information”) if but only if (i) such disclosure is required under applicable\nsecurities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure\nrequirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition,\ninterrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory\nexaminer (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Confidential Information of the\ndisclosing party or the Transaction Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and\ncircumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally available steps to\nresist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party’s expense, in seeking a protective order or\nother appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or\nthat the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential\nInformation or Transaction Information which the receiving party is advised by counsel is legally\n-2-\nrequired to be disclosed and to only those persons to whom the receiving party is advised by counsel are legally required to receive such\ninformation, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded\nsuch Confidential Information or Transaction Information, and (y) the receiving party shall not be liable for such disclosure, unless such\ndisclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.\n5. Handling of Information and Materials. Confidential Information will not be reproduced in any form except as required to accomplish the\nPurpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing\nparty and will contain and state any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized\nin writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each\nreceiving party will promptly destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other\ntangible materials representing the disclosing party’s Confidential Information and all copies thereof. Notwithstanding the forgoing the receiving\nparty may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external\nadvisors, if any, may keep one copy of their Confidential Information in accordance with the laws and professional standards applicable to them.\n6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property rights,\nby license or otherwise, to any Confidential Information of the disclosing party disclosed pursuant to this Agreement, or to any invention or any\npatent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each\nreceiving party will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any\nConfidential Information of the disclosing party.\n7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of twelve (12) months from the date\nof this Agreement (the “Restricted Period”) none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange\nAct of 1934, as amended) who are provided with Confidential Information or become aware of Company’s discussions with Spark, will:\n(a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of Spark’s assets or businesses, or similar\ntransactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i)\nacquire beneficial ownership of any voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii)\nand (b)(i) involving a majority of Spark’s outstanding voting securities or consolidated assets, is referred to as a “Business Combination”), (ii)\npropose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange\nCommission) of proxies or consents to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark,\nor (iv)\n-3-\npropose any matter to be voted upon by the stockholders of Spark; (c) directly or indirectly, form, join or in any way participate in a third party\n“group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a\ngroup) with respect to any voting securities (including in derivative form) of Spark or a Business Combination involving Spark; (d) request Spark\n(or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this\nsentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public\nannouncement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit Company from make\na confidential proposal to Spark or Spark’s Chairman of the Board of Directors for a transaction involving a Business Combination at any time for\na transaction involving a Business Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing\nrestrictions set forth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its Affiliates\nwithout any further action in the event that (A) Spark’s board of directors (or a committee thereof) approves, or Spark enters into a definitive\nagreement providing for, a Business Combination, (B) a third party commences, or announces an intention to commence, a tender or exchange\noffer, the consummation of which would constitute a Business Combination and (i) the board of directors (or a committee thereof) of Spark at any\ntime recommends, or publicly discloses an intention to recommend, that Spark’s shareholders tender their shares into such tender or exchange\noffer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days from the\ndate such offer is first published, sent or given to shareholders, recommend that Spark’s shareholders not tender their shares into such tender or\nexchange offer (as it may have been amended) or at any time thereafter changes its recommendation with respect to such tender or exchange offer\n(as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark’s\nshareholders not tender their shares into such tender or exchange offer, (C) any person or “group” (as such term is used under the Exchange Act)\ncommences, or announces an intention to commence, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) or consents\nwith respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority of\nthe members of the board of directors of Spark or result in a majority of the seats of the board of directors of Spark becoming vacant, or (D) with\nrespect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination,\nSpark’s board of directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange\noffer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill agreements similar to the\nprovision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark (“Other Standstill\nAgreement”), and the parties hereby agree that, to the extent that any such Other Standstill Agreement contains provisions that are more favorable\nto the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable\nterms as set forth in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this\n-4-\nagreement shall restrict Company or its Affiliates, directly or indirectly, from taking any action described in this paragraph 7 (including using for\nthe purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph 7\nshall prevent the Company from entering into license, collaboration or other similar agreements in the ordinary course of business.\n8. Passive Investments. The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares\nor other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5% of such voting\nsecurities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company’s or its\nAffiliates employees so long as such investments are directed by independent trustees, administrators or employees to whom no Confidential\nInformation has been disclosed.\n9. Term and Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time\nupon thirty (30) days written notice to the other party. The receiving party’s obligations under this Agreement will survive termination or\nexpiration of this Agreement for a period of five (5) years after the termination or expiration hereof and will be binding upon the receiving party’s\nheirs, successors and assigns after such termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth\ntherein.\n10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth in the opening\nparagraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight\ncourier; or (b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.\n11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This\nAgreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this\nAgreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of any provision\nhereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or\nmodification is made in writing and signed by both parties. This Agreement will be governed by and construed in accordance with the laws of the\nState of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the\nFederal courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party\nacknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the\nreceiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific\nperformance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use\nits best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any\nsuch remedy. Such remedies shall not be the exclusive\n-5-\nremedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this\nAgreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement\nunenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such\nunenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights\nor obligations under this Agreement without the prior written consent of the other party, provided that a party may assign this Agreement to an\nAffiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control, sale of\nsubstantially all assets or similar transaction of the assigning party. Neither party will export, directly or indirectly, any technical data acquired\nfrom the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency\nthereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. This\nAgreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall constitute one and\nthe same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.\n*\n*\n*\n-6-\nIN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.\nSPARK THERAPEUTICS, INC.\nROCHE HOLDINGS INC.\nBy: /s/ Joseph W. LaBarge\nBy: /s/ Bruce Resnick\nName: Joseph W. LaBarge\nName: Bruce Resnick\nTitle: Chief Legal Officer\nTitle: Vice President	EX-99.(D)(2) 8 d642137dex99d2.htm EX-99.(D)(2)\nExhibit 99.(d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE A GREEMENT (this “Agreement”), entered into as of October 9, 2018 (the “Effective Date”), governs the\ndisclosure of information by and between Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300,\nPhiladelphia, PA (“Spark”), and Roche Holdings Inc, a Delaware company having an address at 1 DNA Way, South San Francisco, CA 94080\n(“Company”). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and\nreceiving party herein, shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may\nbe; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co., Ltd, 1-1 Nihonbashi-Muromachi\n2-chome, Chuo-ku, Tokyo, 103-8324 (“Chugai”) unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving\nwritten notice to the Company.\n1. Purpose. This Agreement is made in order for each party to disclose to the other, during the term of this Agreement, such scientific, technical,\nbusiness and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose\nof evaluating the Confidential Information internally in connection with evaluating a possible transaction between the parties relating to one, more\nor all of Spark’s gene therapy product candidates and/or assets (the “Purpose”) under terms that will protect the confidential and proprietary\nnature of such information.\n2. Confidential Information. As used herein, “Confidential Information” will mean any and all scientific, technical, business and financial\ninformation, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of whether tangible,\nintangible, visual, or oral), to the receiving party, before or after the Effective Date. “Confidential Information” includes but is not limited to:\n(a) patent and patent applications; (b) manufacturing, including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade\nsecrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical compounds, assays, biological materials,\ntechniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to\nthe current, future, and proposed products and services of each of the parties, and including without limitation, their respective information\nconcerning research, experimental work, development, design details and specifications, engineering, financial information, procurement\nrequirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst\nreports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.\n3. Obligations. Each receiving party agrees: (a) to use the disclosing party’s Confidential Information solely for the Purpose stated above and\nfor no other reason; (b) to protect the confidentiality of the disclosing party’s Confidential Information; (c) not to disclose any of the disclosing\nparty’s Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its\nAffiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are otherwise bound by\nconfidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees, consultants\nand representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality\nobligations. The receiving party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its employees,\nconsultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential\nInformation, each such copy will contain and state the same confidential or proprietary notices or legends, if any, that appear on the original.\n4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving\nparty can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent court: (a) is already\nknown to the receiving party prior to the disclosing party’s disclosure; (b) is or becomes publicly available through no fault of the receiving party;\n(c) is obtained by the receiving party from a third party; or (d) is independently developed by the receiving party without use of or reference to any\nConfidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing\nexceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving\nparty, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the\npublic domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain\nor in the possession of the receiving party. Notwithstanding anything contained in this Agreement, other than in the case of an External Demand\n(as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any\nof the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidential Information has been made\navailable to the receiving party (such information, “Transaction Information”) if but only if (i) such disclosure is required under applicable\nsecurities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure\nrequirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition,\ninterrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory\nexaminer (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Confidential Information of the\ndisclosing party or the Transaction Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and\ncircumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally available steps to\nresist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party’s expense, in seeking a protective order or\nother appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or\nthat the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential\nInformation or Transaction Information which the receiving party is advised by counsel is legally\n-\nrequired to be disclosed and to only those persons to whom the receiving party is advised by counsel are legally required to receive such\ninformation, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded\nsuch Confidential Information or Transaction Information, and (y) the receiving party shall not be liable for such disclosure, unless such\ndisclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.\n5. Handling of Information and Materials. Confidential Information will not be reproduced in any form except as required to accomplish the\nPurpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing\nparty and will contain and state any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized\nin writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each\nreceiving party will promptly destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other\ntangible materials representing the disclosing party’s Confidential Information and all copies thereof. Notwithstanding the forgoing the receiving\nparty may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external\nadvisors, if any, may keep one copy of their Confidential Information in accordance with the laws and professional standards applicable to them.\n6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property rights,\nby license or otherwise, to any Confidential Information of the disclosing party disclosed pursuant to this Agreement, or to any invention or any\npatent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each\nreceiving party will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any\nConfidential Information of the disclosing party.\n7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of twelve (12) months from the date\nof this Agreement (the “Restricted Period”) none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange\nAct of 1934, as amended) who are provided with Confidential Information or become aware of Company’s discussions with Spark, will:\n(a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of Spark’s assets or businesses, or similar\ntransactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i)\nacquire beneficial ownership of any voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii)\nand (b)(i) involving a majority of Spark’s outstanding voting securities or consolidated assets, is referred to as a “Business Combination”), (ii)\npropose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange\nCommission) of proxies or consents to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark,\nor (iv)\n3-\npropose any matter to be voted upon by the stockholders of Spark; (c) directly or indirectly, form, join or in any way participate in a third party\n“group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a\ngroup) with respect to any voting securities (including in derivative form) of Spark or a Business Combination involving Spark; (d) request Spark\n(or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this\nsentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public\nannouncement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit Company from make\na confidential proposal to Spark or Spark’s Chairman of the Board of Directors for a transaction involving a Business Combination at any time for\na transaction involving a Business Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing\nrestrictions set forth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its Affiliates\nwithout any further action in the event that (A) Spark’s board of directors (or a committee thereof) approves, or Spark enters into a definitive\nagreement providing for, a Business Combination, (B) a third party commences, or announces an intention to commence, a tender or exchange\noffer, the consummation of which would constitute a Business Combination and (i) the board of directors (or a committee thereof) of Spark at any\ntime recommends, or publicly discloses an intention to recommend, that Spark’s shareholders tender their shares into such tender or exchange\noffer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days from the\ndate such offer is first published, sent or given to shareholders, recommend that Spark’s shareholders not tender their shares into such tender or\nexchange offer (as it may have been amended) or at any time thereafter changes its recommendation with respect to such tender or exchange offer\n(as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark’s\nshareholders not tender their shares into such tender or exchange offer, (C) any person or “group” (as such term is used under the Exchange Act)\ncommences, Or announces an intention to commence, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) or consents\nwith respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority of\nthe members of the board of directors of Spark or result in a majority of the seats of the board of directors of Spark becoming vacant, or (D) with\nrespect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination,\nSpark’s board of directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange\noffer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill agreements similar to the\nprovision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark (“Other Standstill\nAgreement”), and the parties hereby agree that, to the extent that any such Other Standstill Agreement contains provisions that are more favorable\nto the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable\nterms as set forth in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this\n4-\nagreement shall restrict Company or its Affiliates, directly or indirectly, from taking any action described in this paragraph 7 (including using for\nthe purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph 7\nshall prevent the Company from entering into license, collaboration or other similar agreements in the ordinary course of business.\n8. Passive Investments. The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares\nor other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5% of such voting\nsecurities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company’s or its\nAffiliates employees so long as such investments are directed by independent trustees, administrators or employees to whom no Confidential\nInformation has been disclosed.\n9. Term and Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time\nupon thirty (30) days written notice to the other party. The receiving party’s obligations under this Agreement will survive termination or\nexpiration of this Agreement for a period of five (5) years after the termination or expiration hereof and will be binding upon the receiving party’s\nheirs, successors and assigns after such termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth\ntherein.\n10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth in the opening\nparagraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight\ncourier; or (b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.\n11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This\nAgreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this\nAgreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of any provision\nhereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or\nmodification is made in writing and signed by both parties. This Agreement will be governed by and construed in accordance with the laws of the\nState of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the\nFederal courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party\nacknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the\nreceiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific\nperformance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use\nits best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any\nsuch remedy. Such remedies shall not be the exclusive\n-5-\nremedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this\nAgreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement\nunenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such\nunenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights\nor obligations under this Agreement without the prior written consent of the other party, provided that a party may assign this Agreement to an\nAffiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control, sale of\nsubstantially all assets or similar transaction of the assigning party. Neither party will export, directly or indirectly, any technical data acquired\nfrom the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency\nthereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. This\nAgreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall constitute one and\nthe same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.\n-6-\nIN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.\nSPARK THERAPEUTICS, INC. ROCHE HOLDINGS INC.\nBy: /s/ Joseph W. LaBarge By: /s/ Bruce Resnick\nName: Joseph W. LaBarge Name: Bruce Resnick\nTitle:  Chief Legal Officer Title:  Vice President	EX-99.(D)(2) 8 d642137dex99d2.htm EX-99.(D)(2)\nExhibit 99.(d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this "Agreement"), entered into as of October 9, 2018 (the "Effective Date"), governs the\ndisclosure of information by and between Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300,\nPhiladelphia, PA ("Spark"), and Roche Holdings Inc, a Delaware company having an address at 1 DNA Way, South San Francisco, CA 94080\n("Company"). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and\nreceiving party herein, shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may\nbe; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co., Ltd, 1-1 Nihonbashi-Muromachi\n2-chome, Chuo-ku, Tokyo, 103-8324 ("Chugai") unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving\nwritten notice to the Company.\n1.\nPurpose. This Agreement is made in order for each party to disclose to the other, during the term of this Agreement, such scientific, technical,\nbusiness and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose\nof\nevaluating the Confidentia Information internally in connection with evaluating a possible transaction between the parties relating to one, more\nor all of Spark's gene therapy product candidates and/or assets (the "Purpose") under terms that will protect the confidential and proprietary\nnature of such information.\n2.\nConfidential Information. As used herein, "Confidential Information" will mean any and all scientific, technical, business and financial\ninformation, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of whether tangible,\nintangible, visual, or oral), to the receiving party, before or after the Effective Date. "Confidential Information" includes but is not limited to:\n(a) patent and patent applications; (b) manufacturing, including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade\nsecrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical compounds, assays, biological materials,\ntechniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to\nthe current, future, and proposed products and services of each of the parties, and including without limitation, their respective information\nconcerning research, experimental work, development, design details and specifications, engineering, financial information, procurement\nrequirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst\nreports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.\n3. Obligations. Each receiving party agrees: (a) to use the disclosing party's Confidential Information solely for the Purpose stated above and\nfor no other reason; (b) to protect the confidentiality of the disclosing party's Confidential Information; (c) not to disclose any of the disclosing\nparty's Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its\nAffiliates who have a "need to know" the information for the Purpose and who have signed confidentiality agreements or are otherwise bound by\nconfidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees, consultants\nand representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality\nobligations. The receiving party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its employees,\nconsultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential\nInformation, each such copy will contain and state the same confidential or proprietary notices or legends, if any, that appear on the original.\n4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving\nparty can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent court: (a) is already\nknown to the receiving party prior to the disclosing party's disclosure; (b) is or becomes publicly available through no fault of the receiving party;\n(c) is obtained by the receiving party from a third party; or (d) is independently developed by the receiving party without use of or reference to any\nConfidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing\nexceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving\nparty, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the\npublic domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain\nor in the possession of the receiving party. Notwithstanding anything contained in this Agreement, other than in the case of an External Demand\n(as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any\nof the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidentia Information has been made\navailable to the receiving party (such information, "Transaction Information") if but only if (i) such disclosure is required under applicable\nsecurities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure\nrequirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition,\ninterrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory\nexaminer (any such requested or required disclosure, an "External Demand") to disclose all or any part of the Confidential Information of the\ndisclosing party or the Transaction Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and\ncircumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally available steps to\nresist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party's expense, in seeking a protective order\nor\nother appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or\nthat the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential\nInformation or Transaction Information which the receiving party is advised by counsel is legally\n-2-\nrequired to be disclosed and to only those persons to whom the receiving party is advised by counsel are legally required to receive such\ninformation, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded\nsuch Confidential Information or Transaction Information, and (y) the receiving party shall not be liable for such disclosure, unless such\ndisclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.\n5.\nHandling of Information and Materials. Confidential Information will not be reproduced in any form except as required to accomplish the\nPurpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing\nparty and will contain and state any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized\nin writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each\nreceiving party will promptly destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other\ntangible materials representing the disclosing party's Confidential Information and all copies thereof. Notwithstanding the forgoing the receiving\nparty may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external\nadvisors, if any, may keep one copy of their Confidential Information in accordance with the laws and professional standards applicable to them.\n6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property rights,\nby\nlicense\nor\notherwise,\nto\nany\nConfidential\nInformation\nof\nthe\ndisclosing\nparty\ndisclosed\npursuant\nto\nthis\nAgreement,\nor\nto\nany\ninvention\nor\nany\npatent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each\nreceiving party will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any\nConfidential Information of the disclosing party.\n7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of twelve (12) months from the date\nof this Agreement (the "Restricted Period") none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange\nAct of 1934, as amended) who are provided with Confidential Information or become aware of Company's discussions with Spark, will:\n(a)\npropose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of Spark's assets or businesses, or similar\ntransactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i)\nacquire beneficial ownership of any voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii)\nand (b)(i) involving a majority of Spark's outstanding voting securities or consolidated assets, is referred to as a "Business Combination") (ii)\npropose or seek, whether alone or in concert with others, any "'solicitation" (as such term is used in the rules of the Securities and Exchange\nCommission) of proxies or consents to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark,\nor (iv)\n-3-\npropose any matter to be voted upon by the stockholders of Spark; (c) directly or indirectly, form, join or in any way participate in a third party\n"group" (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a\ngroup)\nwith\nrespect\nto\nany\nvoting\nsecurities\n(including\nin\nderivative\nform)\nof\nSpark\nor\na\nBusiness\nCombination\ninvolving\nSpark;\n(d)\nrequest\nSpark\n(or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this\nsentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public\nannouncement\nregarding\na\npotential\nBusiness\nCombination;\nprovided,\nhowever,\nthat\nnothing\nin\nthis\nparagraph\nshall\nprohibit\nCompany\nfrom\nmake\na confidential proposal to Spark or Spark's Chairman of the Board of Directors for a transaction involving a Business Combination at any time for\na transaction involving a Business Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing\nrestrictions\nset\nforth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its\nAffiliates\nwithout any further action in the event that (A) Spark's board of directors (or a committee thereof) approves, or Spark enters into a definitive\nagreement providing for, a Business Combination, (B) a third party commences, or announces an intention to commence, a tender or exchange\noffer,\nthe\nconsummation\nof\nwhich\nwould\nconstitute\na\nBusiness\nCombination\nand\n(i)\nthe\nboard\nof\ndirectors\n(or\na\ncommittee\nthereof)\nof\nSpark\nat\nany\ntime recommends, or publicly discloses an intention to recommend, that Spark's shareholders tender their shares into such tender or exchange\noffer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days from the\ndate such offer is first published, sent or given to shareholders, recommend that Spark's shareholders not tender their shares into such tender or\nexchange offer (as it may have been amended) or at any time thereafter changes its recommendation with respect to such tender or exchange offer\n(as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark's\nshareholders not tender their shares into such tender or exchange offer, (C) any person or "group" (as such term is used under the Exchange Act)\ncommences, or announces an intention to commence, any "solicitation" of "proxies" (as such terms are used under the Exchange Act) or consents\nwith respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority\nof\nthe members of the board of directors of Spark or result in a majority of the seats of the board of directors of Spark becoming vacant, or (D) with\nrespect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination,\nSpark's board of directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange\noffer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill agreements similar to the\nprovision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark ("Other Standstill\nAgreement"), and the parties hereby agree that, to the extent that any such Other Standstill Agreement contains provisions that are more favorable\nto the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable\nterms as set forth in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this\n-4-\nagreement shall restrict Company or its Affiliates, directly or indirectly, from taking any action described in this paragraph 7 (including using for\nthe purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph\n7\nshall prevent the Company from entering into license, collaboration or other similar agreements in the ordinary course of business.\n8. Passive Investments. The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares\nor other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5% of such voting\nsecurities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company's or its\nAffiliates employees so long as such investments are directed by independent trustees, administrators or employees to whom no Confidential\nInformation has been disclosed.\n9. Term and Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time\nupon thirty (30) days written notice to the other party. The receiving party's obligations under this Agreement will survive termination or\nexpiration\nof\nthis\nAgreement\nfor\na\nperiod\nof\nfive\n(5)\nyears\nafter\nthe\ntermination\nor\nexpiration\nhereof\nand\nwill\nbe\nbinding\nupon\nthe\nreceiving\nparty's\nheirs, successors and assigns after such termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth\ntherein.\n10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth in the opening\nparagraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight\ncourier; or (b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.\n11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This\nAgreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this\nAgreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of any provision\nhereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or\nmodification is made in writing and signed by both parties. This Agreement will be governed by and construed in accordance with the laws of\nthe\nState of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the\nFederal courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party\nacknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the\nreceiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific\nperformance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use\nits best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any\nsuch remedy. Such remedies shall not be the exclusive\n-5-\nremedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this\nAgreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement\nunenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such\nunenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights\nor obligations under this Agreement without the prior written consent of the other party, provided that a party may assign this Agreement to an\nAffiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control,\nsale\nof\nsubstantially all assets or similar transaction of the assigning party. Neither party will export, directly or indirectly, any technical data acquired\nfrom the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency\nthereof at the time of export requires an export license or other governmenta approval without first obtaining such license or approval. This\nAgreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall constitute one and\nthe same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.\n*\n-6-\nIN\nWITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.\nSPARK THERAPEUTICS, INC.\nROCHE HOLDINGS INC.\nBy: /s/ Joseph W. LaBarge\nBy: /s/ Bruce Resnick\nName: Joseph W. LaBarge\nName: Bruce Resnick\nTitle: Chief Legal Officer\nTitle: Vice President	EX-99.(D)(2) 8 d642137dex99d2.htm EX-99 .(D)(2)\nExhibit 99.(d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE A GREEMENT (this “Agreement”), entered into as of October 9, 2018 (the “Effective Date”), governs the\ndisclosure of information by and between Spark Therapeutics, Inc., a Delaware corporation, having an address at 3737 Market Street, Suite 1300,\nPhiladelphia, PA (“Spark”), and Roche Holdings Inc, a Delaware company having an address at 1 DNA Way, South San Francisco, CA 94080\n(“Company”). For purposes of this Agreement, references to each of Spark and Company, and corresponding references to disclosing party and\nreceiving party herein, shall include the respective subsidiaries and other entities controlled, directly or indirectly by Spark or Company, as the case may\nbe; provided, however, with respect to Company, the foregoing provision shall exclude Chugai Pharmaceutical Co., Ltd, 1-1 Nihonbashi-Muromachi\n2-chome, Chuo-ku, Tokyo, 103-8324 (“Chugai”) unless the Company opts for such inclusion of Chugai and their respective subsidiaries by giving\nwritten notice to the Company.\n1. Purpose. This Agreement is made in order for each party to disclose to the other, during the term of this Agreement, such scientific, technical,\nbusiness and financial information as the disclosing party may elect to disclose so that the receiving party may use the same solely for the purpose\nof evaluating the Confidential Information internally in connection with evaluating a possible transaction between the parties relating to one, more\nor all of Spark’s gene therapy product candidates and/or assets (the “Purpose”) under terms that will protect the confidential and proprietary\nnature of such information.\n2. Confidential Information. As used herein, “Confidential Information” will mean any and all scientific, technical, business and financial\ninformation, including third party information, that is furnished or disclosed, in whatever form or medium (regardless of whether tangible,\nintangible, visual, or oral), to the receiving party, before or after the Effective Date. “Confidential Information” includes but is not limited to:\n(a) patent and patent applications; (b) manufacturing, including process and know-how; (c) clinical trial design or results; (d) vendors; (e) trade\nsecrets; and (f) other proprietary information, ideas, gene sequences, cell lines, samples, chemical compounds, assays, biological materials,\ntechniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, and formulae related to\nthe current, future, and proposed products and services of each of the parties, and including without limitation, their respective information\nconcerning research, experimental work, development, design details and specifications, engineering, financial information, procurement\nrequirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, analyst\nreports, sales and merchandising, marketing plans and any additional non-public information the disclosing party provides.\n3. Obligations. Each receiving party agrees: (a) to use the disclosing party’s Confidential Information solely for the Purpose stated above and\nfor no other reason; (b) to protect the confidentiality of the disclosing party’s Confidential Information; (c) not to disclose any of the disclosing\nparty’s Confidential Information to anyone, except those employees, consultants or representatives of the receiving party or its\nAffiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are otherwise bound by\nconfidentiality and non-use obligations at least as restrictive as those contained herein; and (d) to notify appropriately such employees, consultants\nand representatives of the receiving party or its Affiliates that the disclosure is made in confidence and under the applicable confidentiality\nobligations. The receiving party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its employees,\nconsultants or representatives. Each receiving party agrees that in the event permission is granted by the disclosing party to copy Confidential\nInformation, each such copy will contain and state the same confidential or proprietary notices or legends, if any, that appear on the original.\n4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that the receiving\nparty can establish by competent evidence acceptable under applicable law and as deemed appropriate by the competent court: (a) is already\nknown to the receiving party prior to the disclosing party’s disclosure; (b) is or becomes publicly available through no fault of the receiving party;\n(c) is obtained by the receiving party from a third party; or (d) is independently developed by the receiving party without use of or reference to any\nConfidential Information. Notwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing\nexceptions merely because such information is embraced by more general information in the public domain or in the possession of the receiving\nparty, and (ii) any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the\npublic domain or in the possession of the receiving party, but only if the combination itself and its principle of operation are in the public domain\nor in the possession of the receiving party. Notwithstanding anything contained in this Agreement, other than in the case of an External Demand\n(as defined below), the receiving party may disclose either the fact that discussions or negotiations are taking place concerning the Purpose or any\nof the terms, conditions or other facts with respect to the Purpose, including the status thereof or that Confidential Information has been made\navailable to the receiving party (such information, “Transaction Information”) if but only if (i) such disclosure is required under applicable\nsecurities or antitrust laws or under applicable stock exchange rules as determined based on advice of legal counsel and (ii) such disclosure\nrequirement does not arise from a breach of this Agreement. In the event the receiving party receives a request or is required by deposition,\ninterrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a regulatory\nexaminer (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Confidential Information of the\ndisclosing party or the Transaction Information, the receiving party shall (1) immediately notify the disclosing party of the existence, terms and\ncircumstances surrounding such External Demand, (2) consult with the disclosing party on the advisability of taking legally available steps to\nresist or narrow such request or disclosure, and (3) assist the disclosing party, at the disclosing party’s expense, in seeking a protective order or\nother appropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained or\nthat the disclosing party waives compliance with the provisions hereof, (x) the receiving party may disclose only that portion of the Confidential\nInformation or Transaction Information which the receiving party is advised by counsel is legally\n-2-\nrequired to be disclosed and to only those persons to whom the receiving party is advised by counsel are legally required to receive such\ninformation, and the receiving party shall exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded\nsuch Confidential Information or Transaction Information, and (y) the receiving party shall not be liable for such disclosure, unless such\ndisclosure was caused by or resulted from a previous disclosure by the receiving party not permitted by this Agreement.\n5. Handling of Information and Materials. Confidential Information will not be reproduced in any form except as required to accomplish the\nPurpose of this Agreement. Any reproduction of any Confidential Information of the disclosing party will remain the property of the disclosing\nparty and will contain and state any and all confidential or proprietary notices or legends that appear on the original, unless otherwise authorized\nin writing by the disclosing party. Upon termination or expiration of this Agreement, or upon written request of the disclosing party, each\nreceiving party will promptly destroy (to the extent reasonably practicable in case of electronic files) or return to the other all documents and other\ntangible materials representing the disclosing party’s Confidential Information and all copies thereof. Notwithstanding the forgoing the receiving\nparty may retain one copy of all Confidential Information in its legal department solely for archival and compliance purposes and its external\nadvisors, if any, may keep one copy of their Confidential Information in accordance with the laws and professional standards applicable to them.\n6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement will be construed as granting any property rights,\nby license or otherwise, to any Confidential Information of the disclosing party disclosed pursuant to this Agreement, or to any invention or any\npatent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Each\nreceiving party will not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any\nConfidential Information of the disclosing party.\n7. Standstill. Company hereby acknowledges that, unless otherwise agreed in writing by Spark, for a period of twelve (12) months from the date\nof this Agreement (the “Restricted Period”) none of Company, nor any of its Affiliates (as defined in Rule 12b-2 under the Securities Exchange\nAct of 1934, as amended) who are provided with Confidential Information or become aware of Company’s discussions with Spark, will:\n(a) propose (i) any merger, consolidation, business combination, tender or exchange offer, purchase of Spark’s assets or businesses, or similar\ntransactions involving Spark or (ii) any recapitalization, restructuring, liquidation or other extraordinary transaction with respect to Spark; (b) (i)\nacquire beneficial ownership of any voting securities (including in derivative form) of Spark (collectively, a transaction specified in (a)(i), (a)(ii)\nand (b)(i) involving a majority of Spark’s outstanding voting securities or consolidated assets, is referred to as a “Business Combination”), (ii)\npropose or seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange\nCommission) of proxies or consents to vote any securities (including in derivative form) of Spark, (iii) nominate any person as a director of Spark,\nor (iv)\n-3-\npropose any matter to be voted upon by the stockholders of Spark; (c) directly or indirectly, form, join or in any way participate in a third party\n“group” (as such term is used in the rules of the Securities and Exchange Commission) (or discuss with any third party the potential formation of a\ngroup) with respect to any voting securities (including in derivative form) of Spark or a Business Combination involving Spark; (d) request Spark\n(or any of its officers, directors or representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this\nsentence) in a way which would require Spark to publicly disclose the same; or (d) take any action that could require Spark to make a public\nannouncement regarding a potential Business Combination; provided, however, that nothing in this paragraph shall prohibit Company from make\na confidential proposal to Spark or Spark’s Chairman of the Board of Directors for a transaction involving a Business Combination at any time for\na transaction involving a Business Combination. Notwithstanding the foregoing provisions of this paragraph to the contrary, the foregoing\nrestrictions set forth in this paragraph shall immediately and automatically terminate and cease to apply with respect to Company and its Affiliates\nwithout any further action in the event that (A) Spark’s board of directors (or a committee thereof) approves, or Spark enters into a definitive\nagreement providing for, a Business Combination, (B) a third party commences, or announces an intention to commence, a tender or exchange\noffer, the consummation of which would constitute a Business Combination and (i) the board of directors (or a committee thereof) of Spark at any\ntime recommends, or publicly discloses an intention to recommend, that Spark’s shareholders tender their shares into such tender or exchange\noffer (as it may have been amended), or (ii) the board of directors (or a committee thereof) of Spark does not, within ten business days from the\ndate such offer is first published, sent or given to shareholders, recommend that Spark’s shareholders not tender their shares into such tender or\nexchange offer (as it may have been amended) or at any time thereafter changes its recommendation with respect to such tender or exchange offer\n(as it may have been amended) or takes any similar action that results in such board of directors no longer recommending that Spark’s\nshareholders not tender their shares into such tender or exchange offer, (C) any person or “group” (as such term is used under the Exchange Act)\ncommences, or announces an intention to commence, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) or consents\nwith respect to the voting securities of Spark in which such person or group would, if successful, elect or acquire the ability to elect a majority of\nthe members of the board of directors of Spark or result in a majority of the seats of the board of directors of Spark becoming vacant, or (D) with\nrespect to any pending tender offer or exchange offer for shares of Spark, the consummation of which would constitute a Business Combination,\nSpark’s board of directors (or any committee thereof) no longer recommends that its shareholders tender their shares into such tender or exchange\noffer (as it may have been amended). The parties further acknowledge that Spark may enter into additional standstill agreements similar to the\nprovision in this paragraph with third parties in connection with such third parties evaluating a possible transaction with Spark (“Other Standstill\nAgreement”), and the parties hereby agree that, to the extent that any such Other Standstill Agreement contains provisions that are more favorable\nto the third party than the provisions in this paragraph, this Agreement shall be deemed automatically amended to incorporate such more favorable\nterms as set forth in the Other Standstill Agreement. Following the expiration of the Restricted Period, no provision of this\n-4-\nagreement shall restrict Company or its Affiliates, directly or indirectly, from taking any action described in this paragraph 7 (including using for\nthe purpose of such action, but not otherwise disclosing any Confidential Information). For the avoidance of doubt, nothing in this paragraph 7\nshall prevent the Company from entering into license, collaboration or other similar agreements in the ordinary course of business.\n8. Passive Investments. The provisions of paragraph 7 shall not prohibit, Company or its Affiliates from owning and/or acquiring voting shares\nor other ownership interests in Spark provided that Company together with its Affiliates owns, in the aggregate, not more 5% of such voting\nsecurities. The provisions of paragraph 7 shall not prohibit passive investments by a pension or employee benefit plan or trust for Company’s or its\nAffiliates employees so long as such investments are directed by independent trustees, administrators or employees to whom no Confidential\nInformation has been disclosed.\n9. Term and Termination. This Agreement will terminate one (1) year after the Effective Date, or may be terminated by either party at any time\nupon thirty (30) days written notice to the other party. The receiving party’s obligations under this Agreement will survive termination or\nexpiration of this Agreement for a period of five (5) years after the termination or expiration hereof and will be binding upon the receiving party’s\nheirs, successors and assigns after such termination or expiration; provided that the rights and obligations in Section 7 shall expire as set forth\ntherein.\n10. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth in the opening\nparagraph above (unless either provides written notice of a different address) and will be deemed given: (a) upon delivery if sent by overnight\ncourier; or (b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.\n11. General. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement. This\nAgreement supersedes all previous agreements between the parties relating to the subject matter hereof. The headings to sections of this\nAgreement are inserted for convenience only and will not be deemed a part hereof or affect the construction or interpretation of any provision\nhereof. No provision of this Agreement will be deemed waived, amended or modified by either party, unless such waiver, amendment or\nmodification is made in writing and signed by both parties. This Agreement will be governed by and construed in accordance with the laws of the\nState of Delaware, without reference to conflict of laws principles. Any dispute under this Agreement may be brought in the state courts and the\nFederal courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue of these courts. Each party\nacknowledges and agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the\nreceiving party or its Affiliates or representatives and that the disclosing party shall be entitled to equitable relief, including injunction and specific\nperformance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive, and use\nits best efforts to cause its Affiliates and representatives to waive any requirement for the securing or posting of any bond in connection with any\nsuch remedy. Such remedies shall not be the exclusive\n-5-\nremedies for a breach of this Agreement, but will be in addition to all other remedies available at law or in equity. If any provision of this\nAgreement is found by a proper authority to be unenforceable or invalid, such unenforceability or invalidity will not render this Agreement\nunenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such\nunenforceable or invalid provision within the limits of applicable law or applicable court decisions. Neither party will assign or transfer any rights\nor obligations under this Agreement without the prior written consent of the other party, provided that a party may assign this Agreement to an\nAffiliate or successor without the consent of the other party in connection with a merger, reorganization, consolidation, change of control, sale of\nsubstantially all assets or similar transaction of the assigning party. Neither party will export, directly or indirectly, any technical data acquired\nfrom the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency\nthereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval. This\nAgreement may be executed in one (1) or more counterparts, each of which shall be an original and all of which together shall constitute one and\nthe same document. Signatures delivered by facsimile, PDF or electronic mail shall be as effective as original signatures.\n*\n*\n*\n-6-\nIN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date.\nSPARK THERAPEUTICS, INC.\nROCHE HOLDINGS INC.\nBy: /s/ Joseph W. LaBarge\nBy: /s/ Bruce Resnick\nName: Joseph W. LaBarge\nName: Bruce Resnick\nTitle: Chief Legal Officer\nTitle: Vice President
+c33d42525dbd70fbab9367cb3f6a8e6a.pdf	effective_date jurisdiction party term	EX-10.2 2 dex102.htm SETTLEMENT, RELEASE, COVENANT NOT TO SUE, WAIVER AND NON-DISCLOSURE\nAGREEMENT\nExhibit 10.2\nExecution Copy\nSETTLEMENT, RELEASE, COVENANT NOT\nTO SUE, WAIVER AND NON-DISCLOSURE AGREEMENT\nWHEREAS, ANDREW BANHIDI, individually and on behalf of all his successors, heirs, executors, administrators, legal representatives, and\nassigns (hereinafter referred to collectively as “Banhidi”), and INSTINET GROUP INCORPORATED, on behalf of its parents, subsidiaries\ndivisions and affiliates, and their respective predecessors, successors, assigns, representatives, officers, directors, shareholders, agents, employees\nand attorneys (hereinafter referred to collectively as “Instinet”), have reached agreement with respect to all matters arising out of Banhidi’s\nemployment with Instinet and the termination thereof;\nNOW, THEREFORE, in consideration of the mutual convenants and undertakings set forth herein, Banhidi and Instinet agree as follows:\n1. Termination of Employment. By mutual agreement between the parties, Banhidi’s employment with Instinet shall terminate on August 1,\n2005 (“Termination Date”). Through the Termination Date, Instinet will continue to pay Banhidi at his current base salary of $350,000 per annum,\nwith continuation of Instinet’s benefit programs through such date.\n2. Separation Payments and Benefits. Instinet will pay Banhidi the amounts described below, subject to the provisions of this Agreement. The\npayments to be provided by this paragraph are in place of, and not in addition to, payments Banhidi would otherwise be entitled to pursuant to any\npolicy or practice of Instinet. All payments made pursuant to this paragraph will be reduced by any and all applicable payroll deductions including,\nbut not limited to, federal, state and local tax withholdings.\n(a) Severance Payments. Banhidi will be entitled to receive severance payments for an 18 month period (the “Severance Period”) at the\nrate of $350,000 per annum from the Termination Date through February 1, 2007. During the Severance Period, Banhidi will be eligible to continue\nhis current health and dental coverage for himself and his family, but will not be eligible for life insurance, 401(k) contributions, long-term disability\ninsurance or any other perquisites or benefits.\n1\n(b) Pro Rata Bonus. Within five business days following the date (the “Bonus Payment Date”) annual bonuses for such fiscal year\nare actually paid by Instinet to its active employees, but in no event later than February 28, 2006, Instinet will pay Banhidi $758,630 as his pro rata\nbonus for fiscal year 2005.\n(c) 150% of Average Annual Bonus. Instinet agrees to pay Banhidi two equal installments of $975,000 each, the first such\ninstallment to be paid in February 2006 and the second such installment to be paid in February 2007.\n3. Return of Instinet Property. Banhidi agrees to return to Instinet by no later than the Termination Date, any and all property (including but not\nlimited to files, records, computer software, computer access codes, home computers, laptop computers, pagers, Palm Pilots, fax machines, company\nIDs, business credit cards, proprietary and confidential information) which belongs to Instinet, and shall not retain any copies, duplicates or excerpts\nthereof, except that Instinet agrees to transfer to Banhidi all rights to his Blackberry from the Termination Date. Banhidi will be responsible for all\ncosts relating to the Blackberry from August 2, 2005 forward.\n4. Outplacement Services. At the request of Banhidi, Instinet will make available executive outplacement services to Banhidi, to be provided\nby an outplacement firm to be selected by Instinet, for a period of up to three months. These services will include the provision of an office and\ntelephone for Banhidi to use during the outplacement period.\n5. Instinet Options and Performance Shares. Banhidi agrees that any options awarded to him under Instinet 2000 Stock Option Plan (the\n“Option Plan”) and any performance shares awarded him under the Instinet 2004 Performance Share Plan (the “Performance Share Plan”) will be\ntreated as provided in the Option Plan and the Performance Share Plan.\n2\n6. Full Satisfaction. Banhidi, by entering into this Agreement, accepts the benefits to be conferred on him hereunder in full and complete\nsatisfaction of any and all asserted and unasserted claims of any kind or description against Instinet as of the date of this Agreement, including, but\nnot limited to, claims arising under any federal, state and local fair employment practice law, workers’ compensation law, and any other employee\nrelations statute, executive order, law and ordinance, including, but not limited to, Title VII of the Civil Rights Act of 1964, as amended, the Age\nDiscrimination in Employment Act of 1967, as amended, the Rehabilitation Act of 1973, as amended, the Family and Medical Leave Act, the\nAmericans With Disabilities Act of 1990, as amended, the Civil Rights Acts of 1866 and 1871, and, except as otherwise expressly set forth herein, of\nany other duty and/or other employment related obligation (all of which are hereinafter referred to as “employment relations laws”) as well as any\nclaims arising from tort, tortious course of conduct, contract (including without limitation any claims arising under Banhidi’s Employment\nAgreement dated November 1, 2003, any offer letter or secondment letter), obligations of “good faith,” public policy, statute, common law, equity,\nand all claims for wages and benefits, monetary and equitable relief, punitive and compensatory relief, and attorneys’ fees and costs.\n7. Releases.\n(A) In consideration of the covenants and undertakings above, Banhidi releases and discharges Instinet from any and all liability, and waives\nany and all rights of any kind and description that he has or may have against Instinet as of the date of this Agreement, including, but not limited to,\nany asserted and unasserted claims arising from any employment relations laws, tort, tortious course of conduct, contract (including without\nlimitation any claims arising under Banhidi’s Employment Agreement dated November 1, 2003, any offer letter or secondment letter), public policy,\nstatute, common law, and equity, and claims for wages and benefits, monetary and equitable relief, punitive and compensatory relief, and attorneys’\nfees and costs. The foregoing notwithstanding, Banhidi’s release and waiver do not apply to: (a) his rights\n3\narising out of this Agreement; (b) any rights that Banhidi and any covered dependents may have to purchase health benefit continuation coverage\nunder federal law commonly known as COBRA; (c) any accrued and vested payouts or benefits under Instinet qualified benefit plans; or (d) any\nrights that Banhidi may have to indemnification under Instinet’s general corporate indemnity for acts undertaken by Banhidi within the scope of his\nduties while employed at Instinet.\n(B) Instinet releases and discharges Banhidi from any and all liability, and waives any and all rights of any kind and description that it has or\nmay have against Banhidi as of the date of this Agreement, regarding which Instinet has actual knowledge or should have had knowledge, other than\nrights under this Agreement or arising as a result of any criminal act of Banhidi.\n8. Non-Competition Covenant. Banhidi agrees that he will not, through February 1, 2006, directly or indirectly, become employed by, engage\nin business with, serve as an agent or consultant to, or become a partner, member, principal, stockholder or other owner (other than a holder of less\nthan 1% of the outstanding voting shares of any publicly held company) of any direct market access (“DMA”) broker-dealer or technology vendor\n(including but not limited to ITG, E*Trade Institutional, Lava Trading, Sonic Financial Technologies, Liquidnet, DEx unit of BNY Brokerage, AES\nunit of CSFB, DMA unit of BancAmerica Securities, etc.) in the United States. For these purposes, DMA broker-dealers or technology vendors are\nthose that offer a technology-enhanced consolidated point of entry to electronically and automatically route securities orders to market destinations\nand pools of liquidity. This Section shall not, however, prevent or restrict Banhidi from being employed by an entity that conducts such DMA\nbusiness, provided that Banhidi is not personally involved in the day-to-day activities of such entity in DMA business.\n4\n9. Non-Solicitation Covenant. Banhidi further agrees that he will not (i) through August 1, 2006, directly or indirectly solicit any employee of\nInstinet to leave the employ of Instinet, or otherwise interfere with the relationship of Instinet or any of its Affiliates with any natural person\nthroughout the world who is or was employed by or otherwise engaged to perform services for Instinet or any of its Affiliates at any time during\nwhich Banhidi was employed by Instinet; or (ii) through August 1, 2006, directly or indirectly solicit or initiate contact with any Instinet client to\ntransact with any other company business in which Instinet is engaged, including but not limited to institutional equities, order-matching, clearing\nand after-hours trading, or to reduce or refrain from doing any business with Instinet. The term “client” means any client of Instinet with whom\nBanhidi had personal contact, or for whom he personally transacted business, or whose identity became known to him in connection with his\nrelationship with or employment by Instinet.\n10. Non-Disparagement. Banhidi and Instinet each agree that except, for truthful statements in any proceeding to enforce this Agreement or\npursuant to a valid Subpoena or Court Order, neither will make or publish any statement (orally or in writing) that becomes or reasonably could be\nexpected to become publicly known, or instigate, assist or participate in the making or publication of any such statement, which would libel, slander\nor disparage (whether or not such disparagement legally constitutes libel or slander) the other or, with respect to Instinet, any of its affiliates or any\nother entity or person within Instinet or its affiliates, any of their affairs or operations, or the reputations of any of their past or present officers,\ndirectors, agents, representatives and employees.\n11. Unauthorized Disclosure. Without the prior written consent of Instinet, except to the extent required by an order of a court having\njurisdiction or under subpoena from an\n5\nappropriate government agency, in which event, Banhidi shall use his best efforts to consult with Instinet prior to responding to any such order or\nsubpoena, Banhidi shall not disclose any confidential or proprietary trade secrets, customer lists, drawings, designs, programs, software, protocols,\ninformation regarding product development, marketing plans, sales plans, manufacturing plans, management organization information, operating\npolicies or manuals, business plans, financial records, packaging design or other financial, commercial, business or technical information (a) relating\nto Instinet or any of its Affiliates or (b) that Instinet or any of its Affiliates may receive belonging to suppliers, customers or others who do business\nwith Instinet or any of its Affiliates (collectively, “Confidential Information”) to any third person unless such Confidential Information has been\npreviously disclosed to the public or is in the public domain (other than by reason of Banhidi’s breach of this Section).\nThe parties further agree that the terms of this Agreement, and the negotiations leading up to it shall not be disclosed by the parties to any\nperson, other than in a proceeding to enforce the terms of this Agreement or pursuant to valid subpoena or court order, with the exception of the\nparties’ lawyers, accountants, tax preparers and, with respect to Banhidi, his immediate family, provided that the parties inform any such persons that\nthey must not disclose the same to any person and they agree to that condition. In response to any inquiry from third parties, the parties and their\nattorneys may state only that the parties have resolved the matter.\n12. Rights To Intellectual Property. Banhidi acknowledges and agrees that Instinet is the sole and exclusive owner of all right, title and interest\nin and to all trademarks, copyrights and all other rights in and to all software, computer programs, works of authorship, writings (whether or not\ncopyrightable), inventions (whether or not patentable), discoveries, methods, improvements, processes, ideas, systems, know-how, data, and any\nother intellectual creations of any nature whatsoever that Banhidi developed, or assisted in the development of, in the course of\n6\nhis employment by Instinet (collectively, the “Instinet Intellectual Property”). All Instinet Intellectual Property is deemed to be “work made for\nhire”pursuant to the United States Copyright Act of 1976 (the “Act”) and Instinet thereby owns all right, title and interest in all Instinet Intellectual\nProperty. To the extent that the Instinet Intellectual Property or any part thereof is deemed by any court of competent jurisdiction or any\ngovernmental or regulatory agency not to be a “work made for hire” within the meaning of the Act, the provisions of this section will still control\nand, for the consideration set forth herein, Banhidi hereby irrevocably and absolutely assigns, sets over and grants to Instinet the Instinet Intellectual\nProperty and all of his rights therein. Banhidi further agrees to deliver or execute such documents and to do or refrain from doing such acts as\nInstinet or its nominee may reasonably request to protect its rights in the Instinet Intellectual Property.\n13. Reemployment or Reinstatement. Banhidi agrees not to seek reinstatement or reemployment with Instinet, and hereby waives any rights\nthat may accrue to his from any rejection of any application for employment with Instinet that he may make.\n14. No Admission of Liability. By entering into this Agreement, the parties do not admit to any liability, wrongdoing, breach of any contract,\ncommission of any tort or the violation of any statute or law alleged by the other to have been violated or otherwise.\n15. Entire Agreement and Severability. This Agreement constitutes the complete settlement of all issues and disputes existing between Banhidi\nand Instinet as of the date hereof, and may not be modified except by a suitable writing signed by both Banhidi and Instinet. This Agreement has\nbeen entered into by Banhidi and Instinet voluntarily, knowingly, and upon advice of counsel. If any provision of this Agreement is held to be\ninvalid, the remaining provisions shall remain in full force and effect.\n16. Injunctive Relief. Banhidi acknowledges that a violation on Banhidi’s part of this Agreement, including in particular violation of the\nprovisions of paragraphs 8, 9, 10 and 11\n7\nwould cause irreparable damage to Instinet. Accordingly, Banhidi agrees that Instinet is entitled to injunctive relief from any court of competent\njurisdiction for any actual or threatened violation of this Agreement in addition to any other remedies it may have.\n17. Change in Control. Instinet agrees that, should it experience a Change in Control (as defined herein), it will undertake to ensure that any\nsuccessor entity shall become legally responsible for Instinet’s obligations hereunder. Should Instinet fail to ensure that the successor entity will\nassume Instinet’s obligations hereunder, within 30 days of the event constituting a Change of Control, then all remaining compensation obligations\nowed to Banhidi by Instinet shall become immediately due and payable. For purposes of this paragraph, “Change in Control” shall mean: (i) an\nacquisition in open market purchases of Instinet Common Stock by a third party of the greater of 30% or the percentage then owned in aggregate by\nReuters and its controlled affiliates; (ii) a merger or similar combination following which Instinet’s shareholders prior to the merger are no longer in\ncontrol of the surviving entity; and/or (iii) a sale of substantially all of Instinet’s assets or a liquidation of Instinet.\n18. Breach of Agreement. Banhidi agrees that, without limiting Instinet’s remedies, should he commence, continue, join in, or in any other\nmanner attempt to assert any claim released in connection herewith, or otherwise violate in a material fashion any of the terms of this Agreement,\nInstinet shall not be required to make any further payments to Banhidi pursuant to this Agreement and that Instinet shall be entitled to recover all\npayments already made by it (including interest thereon), in addition to all damages, attorney’s fees and costs, Instinet incurs in connection with the\nBanhidi’s proven breach of this Agreement. Banhidi further agrees that Instinet shall be entitled to the repayments and recovery of damages\ndescribed above without waiver of or prejudice to the release granted by him in connection with this Agreement, and that his proven violation or\nbreach of any provision of this Agreement shall forever release and discharge Instinet from the performance of its obligations arising from the\nAgreement.\n8\n19. Attorney Fees. The parties agree that, in any suit brought by either party for breach of this Agreement by the other, the non-prevailing party\nwill be liable for the reasonable attorneys fees of the prevailing party.\n20. Execution.\na. Banhidi acknowledges that he has had up to forty-five (45) days from his receipt of this document to review it. Upon execution,\nBanhidi or his attorney must promptly send this document by overnight mail to the General Counsel at Instinet. A copy may be retained by Banhidi.\nb. Following his signing of the Agreement, Banhidi has the right to revoke the Agreement at any time within seven (7) calendar days of\nhis signing it, not including the date of his signing (the “Revocation Period”). Notice of Revocation shall be given in writing and sent by overnight\nmail no later than the seventh day following the date Banhidi signs this Agreement to General Counsel, Instinet Group Incorporated, 3 Times Square,\nNew York, NY 10036. If Banhidi does not revoke the Agreement, this Agreement shall be deemed to be effective and to be enforceable as of the last\ndate set forth opposite any signature hereto. If Banhidi gives Notice of Revocation during the Revocation Period in the manner specified above, this\nAgreement shall become null and void and all rights and claims of the parties which would have existed, but for the execution of this Agreement\nshall be restored.\n21. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the law of the State of New York. An\naction for breach of this Agreement may be brought in any court of competent jurisdiction located in New York.\n22. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the heirs, successors and assigns of the\nparties hereto.\n9\nTHE UNDERSIGNED, intending to be legally bound, have executed this Agreement on this 27th day of July, 2005.\nANDREW BANHIDI\nINSTINET GROUP INCORPORATED\n/s/ Andrew Banhidi\nBy: /s/ Alexander Goor\nName: Alexander Goor\nTitle: Co-President\nSTATEMENT BY THE EMPLOYEE WHO IS SIGNING BELOW: INSTINET HAS ADVISED ME IN WRITING TO CONSULT WITH AN\nATTORNEY PRIOR TO EXECUTING THIS RELEASE. I HAVE CAREFULLY READ AND FULLY UNDERSTAND THE PROVISIONS OF\nTHIS RELEASE AND HAVE HAD SUFFICIENT TIME AND OPPORTUNITY TO CONSULT WITH MY PERSONAL TAX, FINANCIAL AND\nLEGAL ADVISORS PRIOR TO EXECUTING THIS DOCUMENT, AND I INTEND TO BE LEGALLY BOUND BY ITS TERMS. I\nUNDERSTAND THAT I MAY REVOKE THIS RELEASE WITHIN SEVEN (7) DAYS FOLLOWING MY SIGNING, AND THIS RELEASE\nWILL NOT BECOME ENFORCEABLE OR EFFECTIVE UNTIL THAT SEVEN (7) DAY PERIOD HAS EXPIRED.\nANDREW BANHIDI\nSigned: /s/ Andrew Banhidi\nTHIS IS A RELEASE. READ CAREFULLY BEFORE SIGNING .\n10	EX-10.2 2 dex102.htm SETTLEMENT, RELEASE, COVENANT NOT TO SUE, WAIVER AND NON-DISCLOSURE\nAGREEMENT\nExhibit 10.2\nExecution Copy.\nSETTLEMENT, RELEASE, COVENANT NOT\nTO SUE, WAIVER AND NON-DISCL.OSURE AGREEMENT\nWHEREAS, ANDREW BANHIDI, individually and on behalf of all his successors, heirs, executors, administrators, legal representatives, and\nassigns (hereinafter referred to collectively as “Banhidi”), and INSTINET GROUP INCORPORATED, on behalf of its parents, subsidiaries\ndivisions and affiliates, and their respective predecessors, successors, assigns, representatives, officers, directors, shareholders, agents, employees\nand attorneys (hereinafter referred to collectively as “Instinet”), have reached agreement with respect to all matters arising out of Banhidi’s\nemployment with Instinet and the termination thereof;\nNOW, THEREFORE, in consideration of the mutual convenants and undertakings set forth herein, Banhidi and Instinet agree as follows:\n1. Termination of Employment. By mutual agreement between the parties, Banhidi’s employment with Instinet shall terminate on August 1,\n2005 (“Termination Date”). Through the Termination Date, Instinet will continue to pay Banhidi at his current base salary of $350,000 per annum,\nwith continuation of Instinet’s benefit programs through such date.\n2. Separation Payments and Benefits. Instinet will pay Banhidi the amounts described below, subject to the provisions of this Agreement. The\npayments to be provided by this paragraph are in place of, and not in addition to, payments Banhidi would otherwise be entitled to pursuant to any\npolicy or practice of Instinet. All payments made pursuant to this paragraph will be reduced by any and all applicable payroll deductions including,\nbut not limited to, federal, state and local tax withholdings.\n(a) Severance Payments. Banhidi will be entitled to receive severance payments for an 18 month period (the “Severance Period”) at the\nrate of $350,000 per annum from the Termination Date through February 1, 2007. During the Severance Period, Banhidi will be eligible to continue\nhis current health and dental coverage for himself and his family, but will not be eligible for life insurance, 401(k) contributions, long-term disability\ninsurance or any other perquisites or benefits.\n \n(b) Pro Rata Bonus. Within five business days following the date (the “Bonus Payment Date”) annual bonuses for such fiscal year\nare actually paid by Instinet to its active employees, but in no event later than February 28, 2006, Instinet will pay Banhidi $758,630 as his pro rata\nbonus for fiscal year 2005.\n(c) 150% of Average Annual Bonus. Instinet agrees to pay Banhidi two equal installments of $975,000 each, the first such\ninstallment to be paid in February 2006 and the second such installment to be paid in February 2007.\n3. Return of Instinet Property. Banhidi agrees to return to Instinet by no later than the Termination Date, any and all property (including but not\nlimited to files, records, computer software, computer access codes, home computers, laptop computers, pagers, Palm Pilots, fax machines, company\nIDs, business credit cards, proprietary and confidential information) which belongs to Instinet, and shall not retain any copies, duplicates or excerpts\nthereof, except that Instinet agrees to transfer to Banhidi all rights to his Blackberry from the Termination Date. Banhidi will be responsible for all\ncosts relating to the Blackberry from August 2, 2005 forward.\n4. Outplacement Services. At the request of Banhidi, Instinet will make available executive outplacement services to Banhidi, to be provided\nby an outplacement firm to be selected by Instinet, for a period of up to three months. These services will include the provision of an office and\ntelephone for Banhidi to use during the outplacement period.\n5. Instinet Options and Performance Shares. Banhidi agrees that any options awarded to him under Instinet 2000 Stock Option Plan (the\n“Option Plan”) and any performance shares awarded him under the Instinet 2004 Performance Share Plan (the “Performance Share Plan”) will be\ntreated as provided in the Option Plan and the Performance Share Plan.\n6. Full Satisfaction. Banhidi, by entering into this Agreement, accepts the benefits to be conferred on him hereunder in full and complete\nsatisfaction of any and all asserted and unasserted claims of any kind or description against Instinet as of the date of this Agreement, including, but\nnot limited to, claims arising under any federal, state and local fair employment practice law, workers’ compensation law, and any other employee\nrelations statute, executive order, law and ordinance, including, but not limited to, Title VII of the Civil Rights Act of 1964, as amended, the Age\nDiscrimination in Employment Act of 1967, as amended, the Rehabilitation Act of 1973, as amended, the Family and Medical Leave Act, the\nAmericans With Disabilities Act of 1990, as amended, the Civil Rights Acts of 1866 and 1871, and, except as otherwise expressly set forth herein, of\nany other duty and/or other employment related obligation (all of which are hereinafter referred to as “employment relations laws”) as well as any\nclaims arising from tort, tortious course of conduct, contract (including without limitation any claims arising under Banhidi’s Employment\nAgreement dated November 1, 2003, any offer letter or secondment letter), obligations of “good faith,” public policy, statute, common law, equity,\nand all claims for wages and benefits, monetary and equitable relief, punitive and compensatory relief, and attorneys’ fees and costs.\n7. Releases.\n(A) In consideration of the covenants and undertakings above, Banhidi releases and discharges Instinet from any and all liability, and waives\nany and all rights of any kind and description that he has or may have against Instinet as of the date of this Agreement, including, but not limited to,\nany asserted and unasserted claims arising from any employment relations laws, tort, tortious course of conduct, contract (including without\nlimitation any claims arising under Banhidi’s Employment Agreement dated November 1, 2003, any offer letter or secondment letter), public policy,\nstatute, common law, and equity, and claims for wages and benefits, monetary and equitable relief, punitive and compensatory relief, and attorneys’\nfees and costs. The foregoing notwithstanding, Banhidi’s release and waiver do not apply to: (a) his rights\n3\narising out of this Agreement; (b) any rights that Banhidi and any covered dependents may have to purchase health benefit continuation coverage\nunder federal law commonly known as COBRA; (c) any accrued and vested payouts or benefits under Instinet qualified benefit plans; or (d) any\nrights that Banhidi may have to indemnification under Instinet’s general corporate indemnity for acts undertaken by Banhidi within the scope of his\nduties while employed at Instinet.\n(B) Instinet releases and discharges Banhidi from any and all liability, and waives any and all rights of any kind and description that it has or\nmay have against Banhidi as of the date of this Agreement, regarding which Instinet has actual knowledge or should have had knowledge, other than\nrights under this Agreement or arising as a result of any criminal act of Banhidi.\n8. Non-Competition Covenant. Banhidi agrees that he will not, through February 1, 2006, directly or indirectly, become employed by, engage\nin business with, serve as an agent or consultant to, or become a partner, member, principal, stockholder or other owner (other than a holder of less\nthan 1% of the outstanding voting shares of any publicly held company) of any direct market access (“DMA”) broker-dealer or technology vendor\n(including but not limited to ITG, E*Trade Institutional, Lava Trading, Sonic Financial Technologies, Liquidnet, DEx unit of BN'Y Brokerage, AES\nunit of CSFB, DMA unit of BancAmerica Securities, etc.) in the United States. For these purposes, DMA broker-dealers or technology vendors are\nthose that offer a technology-enhanced consolidated point of entry to electronically and automatically route securities orders to market destinations\nand pools of liquidity. This Section shall not, however, prevent or restrict Banhidi from being employed by an entity that conducts such DMA\nbusiness, provided that Banhidi is not personally involved in the day-to-day activities of such entity in DMA business.\n4\n9. Non-Solicitation Covenant. Banhidi further agrees that he will not (i) through August 1, 2006, directly or indirectly solicit any employee of\nInstinet to leave the employ of Instinet, or otherwise interfere with the relationship of Instinet or any of its Affiliates with any natural person\nthroughout the world who is or was employed by or otherwise engaged to perform services for Instinet or any of its Affiliates at any time during\nwhich Banhidi was employed by Instinet; or (ii) through August 1, 2006, directly or indirectly solicit or initiate contact with any Instinet client to\ntransact with any other company business in which Instinet is engaged, including but not limited to institutional equities, order-matching, clearing\nand after-hours trading, or to reduce or refrain from doing any business with Instinet. The term “client” means any client of Instinet with whom\nBanhidi had personal contact, or for whom he personally transacted business, or whose identity became known to him in connection with his\nrelationship with or employment by Instinet.\n10. Non-Disparagement. Banhidi and Instinet each agree that except, for truthful statements in any proceeding to enforce this Agreement or\npursuant to a valid Subpoena or Court Order, neither will make or publish any statement (orally or in writing) that becomes or reasonably could be\nexpected to become publicly known, or instigate, assist or participate in the making or publication of any such statement, which would libel, slander\nor disparage (whether or not such disparagement legally constitutes libel or slander) the other or, with respect to Instinet, any of its affiliates or any\nother entity or person within Instinet or its affiliates, any of their affairs or operations, or the reputations of any of their past or present officers,\ndirectors, agents, representatives and employees.\n11. Unauthorized Disclosure. Without the prior written consent of Instinet, except to the extent required by an order of a court having\njurisdiction or under subpoena from an\nappropriate government agency, in which event, Banhidi shall use his best efforts to consult with Instinet prior to responding to any such order or\nsubpoena, Banhidi shall not disclose any confidential or proprietary trade secrets, customer lists, drawings, designs, programs, software, protocols,\ninformation regarding product development, marketing plans, sales plans, manufacturing plans, management organization information, operating\npolicies or manuals, business plans, financial records, packaging design or other financial, commercial, business or technical information (a) relating\nto Instinet or any of its Affiliates or (b) that Instinet or any of its Affiliates may receive belonging to suppliers, customers or others who do business\nwith Instinet or any of its Affiliates (collectively, “Confidential Information”) to any third person unless such Confidential Information has been\npreviously disclosed to the public or is in the public domain (other than by reason of Banhidi’s breach of this Section).\nThe parties further agree that the terms of this Agreement, and the negotiations leading up to it shall not be disclosed by the parties to any\nperson, other than in a proceeding to enforce the terms of this Agreement or pursuant to valid subpoena or court order, with the exception of the\nparties’ lawyers, accountants, tax preparers and, with respect to Banhidi, his immediate family, provided that the parties inform any such persons that\nthey must not disclose the same to any person and they agree to that condition. In response to any inquiry from third parties, the parties and their\nattorneys may state only that the parties have resolved the matter.\n12. Rights To Intellectual Property. Banhidi acknowledges and agrees that Instinet is the sole and exclusive owner of all right, title and interest\nin and to all trademarks, copyrights and all other rights in and to all software, computer programs, works of authorship, writings (whether or not\ncopyrightable), inventions (whether or not patentable), discoveries, methods, improvements, processes, ideas, systems, know-how, data, and any\nother intellectual creations of any nature whatsoever that Banhidi developed, or assisted in the development of, in the course of\n6\nhis employment by Instinet (collectively, the “Instinet Intellectual Property”). All Instinet Intellectual Property is deemed to be “work made for\nhire”pursuant to the United States Copyright Act of 1976 (the “Act”) and Instinet thereby owns all right, title and interest in all Instinet Intellectual\nProperty. To the extent that the Instinet Intellectual Property or any part thereof is deemed by any court of competent jurisdiction or any\ngovernmental or regulatory agency not to be a “work made for hire” within the meaning of the Act, the provisions of this section will still control\nand, for the consideration set forth herein, Banhidi hereby irrevocably and absolutely assigns, sets over and grants to Instinet the Instinet Intellectual\nProperty and all of his rights therein. Banhidi further agrees to deliver or execute such documents and to do or refrain from doing such acts as\nInstinet or its nominee may reasonably request to protect its rights in the Instinet Intellectual Property.\n13. Reemployment or Reinstatement. Banhidi agrees not to seek reinstatement or reemployment with Instinet, and hereby waives any rights\nthat may accrue to his from any rejection of any application for employment with Instinet that he may make.\n14. No Admission of Liability. By entering into this Agreement, the parties do not admit to any liability, wrongdoing, breach of any contract,\ncommission of any tort or the violation of any statute or law alleged by the other to have been violated or otherwise.\n15. Entire Agreement and Severability. This Agreement constitutes the complete settlement of all issues and disputes existing between Banhidi\nand Instinet as of the date hereof, and may not be modified except by a suitable writing signed by both Banhidi and Instinet. This Agreement has\nbeen entered into by Banhidi and Instinet voluntarily, knowingly, and upon advice of counsel. If any provision of this Agreement is held to be\ninvalid, the remaining provisions shall remain in full force and effect.\n16. Injunctive Relief. Banhidi acknowledges that a violation on Banhidi’s part of this Agreement, including in particular violation of the\nprovisions of paragraphs 8, 9, 10 and 11\nwould cause irreparable damage to Instinet. Accordingly, Banhidi agrees that Instinet is entitled to injunctive relief from any court of competent\njurisdiction for any actual or threatened violation of this Agreement in addition to any other remedies it may have.\n17. Change in Control. Instinet agrees that, should it experience a Change in Control (as defined herein), it will undertake to ensure that any\nsuccessor entity shall become legally responsible for Instinet’s obligations hereunder. Should Instinet fail to ensure that the successor entity will\nassume Instinet’s obligations hereunder, within 30 days of the event constituting a Change of Control, then all remaining compensation obligations\nowed to Banhidi by Instinet shall become immediately due and payable. For purposes of this paragraph, “Change in Control” shall mean: (i) an\nacquisition in open market purchases of Instinet Common Stock by a third party of the greater of 30% or the percentage then owned in aggregate by\nReuters and its controlled affiliates; (ii) a merger or similar combination following which Instinet’s shareholders prior to the merger are no longer in\ncontrol of the surviving entity; and/or (iii) a sale of substantially all of Instinet’s assets or a liquidation of Instinet.\n18. Breach of Agreement. Banhidi agrees that, without limiting Instinet’s remedies, should he commence, continue, join in, or in any other\nmanner attempt to assert any claim released in connection herewith, or otherwise violate in a material fashion any of the terms of this Agreement,\nInstinet shall not be required to make any further payments to Banhidi pursuant to this Agreement and that Instinet shall be entitled to recover all\npayments already made by it (including interest thereon), in addition to all damages, attorney’s fees and costs, Instinet incurs in connection with the\nBanhidi’s proven breach of this Agreement. Banhidi further agrees that Instinet shall be entitled to the repayments and recovery of damages\ndescribed above without waiver of or prejudice to the release granted by him in connection with this Agreement, and that his proven violation or\nbreach of any provision of this Agreement shall forever release and discharge Instinet from the performance of its obligations arising from the\nAgreement.\n19. Attorney Fees. The parties agree that, in any suit brought by either party for breach of this Agreement by the other, the non-prevailing party\nwill be liable for the reasonable attorneys fees of the prevailing party.\n20. Execution.\na. Banhidi acknowledges that he has had up to forty-five (45) days from his receipt of this document to review it. Upon execution,\nBanhidi or his attorney must promptly send this document by overnight mail to the General Counsel at Instinet. A copy may be retained by Banhidi.\nb. Following his signing of the Agreement, Banhidi has the right to revoke the Agreement at any time within seven (7) calendar days of\nhis signing it, not including the date of his signing (the “Revocation Period”). Notice of Revocation shall be given in writing and sent by overnight\nmail no later than the seventh day following the date Banhidi signs this Agreement to General Counsel, Instinet Group Incorporated, 3 Times Square,\nNew York, NY 10036. If Banhidi does not revoke the Agreement, this Agreement shall be deemed to be effective and to be enforceable as of the last\ndate set forth opposite any signature hereto. If Banhidi gives Notice of Revocation during the Revocation Period in the manner specified above, this\nAgreement shall become null and void and all rights and claims of the parties which would have existed, but for the execution of this Agreement\nshall be restored.\n21. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the law of the State of New York. An\naction for breach of this Agreement may be brought in any court of competent jurisdiction located in New York.\n22. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the heirs, successors and assigns of the\nparties hereto.\nTHE UNDERSIGNED, intending to be legally bound, have executed this Agreement on this 27th day of July, 2005.\nANDREW BANHIDI INSTINET GROUP INCORPORATED\n/s/ Andrew Banhidi By: /s/ Alexander Goor\nName: Alexander Goor\nTitle: Co-President\nSTATEMENT BY THE EMPLOYEE WHO IS SIGNING BELOW: INSTINET HAS ADVISED ME IN WRITING TO CONSULT WITH AN\nATTORNEY PRIOR TO EXECUTING THIS RELEASE. I HAVE CAREFULLY READ AND FULLY UNDERSTAND THE PROVISIONS OF\nTHIS RELEASE AND HAVE HAD SUFFICIENT TIME AND OPPORTUNITY TO CONSULT WITH MY PERSONAL TAX, FINANCIAL AND\nLEGAL ADVISORS PRIOR TO EXECUTING THIS DOCUMENT, AND I INTEND TO BE LEGALLY BOUND BY ITS TERMS. I\nUNDERSTAND THAT I MAY REVOKE THIS RELEASE WITHIN SEVEN (7) DAYS FOLLOWING MY SIGNING, AND THIS RELEASE\nWILL NOT BECOME ENFORCEABLE OR EFFECTIVE UNTIL THAT SEVEN (7) DAY PERIOD HAS EXPIRED.\nANDREW BANHIDI\nSigned: /s/ Andrew Banhidi\nTHIS IS A RELEASE. READ CAREFULLY BEFORE SIGNING.\n10	EX-10.2 2 dex102.htm SETTLEMENT, RELEASE, COVENANT NOT TO SUE, WAIVER AND NON-DISCLOSURE\nAGREEMENT\nExhibit 10.2\nExecution Copy.\nSETTLEMENT, RELEASE, COVENANT NOT\nTO SUE, WAIVER AND NON-DISCLOSURE AGREEMENT\nWHEREAS, ANDREW BANHIDI, individually and on behalf of all his successors, heirs, executors, administrators, legal representatives, and\nassigns (hereinafter referred to collectively as "Banhidi"), and INSTINET GROUP INCORPORATED, on behalf of its parents, subsidiaries\ndivisions and affiliates, and their respective predecessors, successors, assigns, representatives, officers, directors, shareholders, agents, employees\nand attorneys (hereinafter referred to collectively as "Instinet"), have reached agreement with respect to all matters arising out of Banhidi's\nemployment with Instinet and the termination thereof;\nNOW, THEREFORE, in consideration of the mutual convenants and undertakings set forth herein, Banhidi and Instinet agree as follows:\n1. Termination of Employment. By mutual agreement between the parties, Banhidi's employment with Instinet shall terminate on August 1,\n2005 ("Termination Date"). Through the Termination Date, Instinet will continue to pay Banhidi at his current base salary of $350,000 per annum,\nwith continuation of Instinet's benefit programs through such date.\n2. Separation Payments and Benefits. Instinet will pay Banhidi the amounts described below, subject to the provisions of this Agreement. The\npayments to be provided by this paragraph are in place of, and not in addition to, payments Banhidi would otherwise be entitled to pursuant to any\npolicy or practice of Instinet. All payments made pursuant to this paragraph will be reduced by any and all applicable payroll deductions including,\nbut not limited to, federal, state and local tax withholdings.\n(a) Severance Payments. Banhidi will be entitled to receive severance payments for an 18 month period (the "Severance Period") at the\nrate of $350,000 per annum from the Termination Date through February 1, 2007. During the Severance Period, Banhidi will be eligible to continue\nhis current health and dental coverage for himself and his family, but will not be eligible for life insurance, 401(k) contributions, long-term disability\ninsurance or any other perquisites or benefits.\n1\n(b) Pro Rata Bonus. Within five business days following the date (the "Bonus Payment Date") annual bonuses for such fiscal year\nare actually paid by Instinet to its active employees, but in no event later than February 28, 2006, Instinet will pay Banhidi $758,630 as his pro rata\nbonus for fiscal year 2005.\n(c) 150% of Average Annual Bonus. Instinet agrees to pay Banhidi two equal installments of $975,000 each, the first such\ninstallment to be paid in February 2006 and the second such installment to be paid in February 2007.\n3. Return of Instinet Property.. Banhidi agrees to return to Instinet by no later than the Termination Date, any and all property (including but not\nlimited\nto\nfiles, records, computer software, computer access codes, home computers, laptop computers, pagers, Palm Pilots, fax machines, company\nIDs, business credit cards, proprietary and confidential information) which belongs to Instinet, and shall not retain any copies, duplicates or excerpts\nthereof, except that Instinet agrees to transfer to Banhidi all rights to his Blackberry from the Termination Date. Banhidi will be responsible for all\ncosts relating to the Blackberry from August 2, 2005 forward.\n4. Outplacement Services. At the request of Banhidi, Instinet will make available executive outplacement services to Banhidi, to be provided\nby an outplacement firm to be selected by Instinet, for a period of up to three months. These services will include the provision of an office and\ntelephone for Banhidi to use during the outplacement period.\n5. Instinet Options and Performance Shares. Banhidi agrees that any options awarded to him under Instinet 2000 Stock Option Plan (the\n"Option Plan") and any performance shares awarded him under the Instinet 2004 Performance Share Plan (the "Performance Share Plan") will be\ntreated as provided in the Option Plan and the Performance Share Plan.\n2\n6. Full Satisfaction. Banhidi, by entering into this Agreement, accepts the benefits to be conferred on him hereunder in full and complete\nsatisfaction of any and all asserted and unasserted claims of any kind or description against Instinet as of the date of this Agreement, including, but\nnot limited to, claims arising under any federal, state and local fair employment practice law, workers' compensation law, and any other employee\nrelations statute, executive order, law and ordinance, including, but not limited to, Title VII of the Civil Rights Act of 1964, as amended, the Age\nDiscrimination in Employment Act of 1967, as amended, the Rehabilitation Act of 1973, as amended, the Family and Medical Leave Act, the\nAmericans With Disabilities Act of 1990, as amended, the Civil Rights Acts of 1866 and 1871, and, except as otherwise expressly set forth herein, of\nany other duty and/or other employment related obligation (all of which are hereinafter referred to as "employment relations laws") as well as any\nclaims arising from tort, tortious course of conduct, contract (including without limitation any claims arising under Banhidi's Employment\nAgreement dated November 1, 2003, any offer letter or secondment letter), obligations of "good faith," public policy, statute, common law, equity,\nand all claims for wages and benefits, monetary and equitable relief, punitive and compensatory relief, and attorneys' fees and costs.\n7. Releases.\n(A) In consideration of the covenants and undertakings above, Banhidi releases and discharges Instinet from any and all liability, and waives\nany and all rights of any kind and description that he has or may have against Instinet as of the date of this Agreement, including, but not limited to,\nany asserted and unasserted claims arising from any employment relations laws, tort, tortious course of conduct, contract (including without\nlimitation any claims arising under Banhidi's Employment Agreement dated November 1, 2003, any offer letter or secondment letter), public policy,\nstatute,\ncommon law, and equity, and claims for wages and benefits, monetary and equitable relief, punitive and compensatory relief, and attorneys'\nfees and costs. The foregoing notwithstanding, Banhidi's release and waiver do not apply to: (a) his rights\n3\narising out of this Agreement; (b) any rights that Banhidi and any covered dependents may have to purchase health benefit continuation coverage\nunder federal law commonly known as COBRA; (c) any accrued and vested payouts or benefits under Instinet qualified benefit plans; or (d) any\nrights that Banhidi may have to indemnification under Instinet's general corporate indemnity for acts undertaken by Banhidi within the scope of\nhis\nduties while employed at Instinet.\n(B) Instinet releases and discharges Banhidi from any and all liability, and waives any and all rights of any kind and description that it has or\nmay have against Banhidi as of the date of this Agreement, regarding which Instinet has actual knowledge or should have had knowledge, other than\nrights under this Agreement or arising as a result of any criminal act of Banhidi.\n8. Non-Competition Covenant. Banhidi agrees that he will not, through February 1, 2006, directly or indirectly, become employed by, engage\nin\nbusiness with, serve as an agent or consultant to, or become a partner, member, principal, stockholder or other owner (other than a holder of less\nthan 1% of the outstanding voting shares of any publicly held company) of any direct market access ("DMA") broker-dealer or technology vendor\n(including but not limited to ITG, E*Trade Institutional, Lava Trading, Sonic Financial Technologies, Liquidnet, DEx unit of BNY Brokerage, AES\nunit of CSFB, DMA unit of BancAmerica Securities, etc.) in the United States. For these purposes, DMA broker-dealers or technology vendors are\nthose that offer a technology-enhanced consolidated point of entry to electronically and automatically route securities orders to market destinations\nand pools of liquidity. This Section shall not, however, prevent or restrict Banhidi from being employed by an entity that conducts such DMA\nbusiness, provided that Banhidi is not personally involved in the day-to-day activities of such entity in DMA business.\n4\n9. Non-Solicitation Covenant. Banhidi further agrees that he will not (i) through August 1, 2006, directly or indirectly solicit any employee of\nInstinet to leave the employ of Instinet, or otherwise interfere with the relationship of Instinet or any of its Affiliates with any natural person\nthroughout the world who is or was employed by or otherwise engaged to perform services for Instinet or any of its Affiliates at any time during\nwhich Banhidi was employed by Instinet; or (ii) through August 1, 2006, directly or indirectly solicit or initiate contact with any Instinet client to\ntransact with any other company business in which Instinet is engaged, including but not limited to institutional equities, order-matching, clearing\nand after-hours trading, or to reduce or refrain from doing any business with Instinet. The term "client" means any client of Instinet with whom\nBanhidi had personal contact, or for whom he personally transacted business, or whose identity became known to him in connection with his\nrelationship with or employment by Instinet.\n10. Non-Disparagement. Banhidi and Instinet each agree that except, for truthful statements in any proceeding to enforce this Agreement or\npursuant to a valid Subpoena or Court Order, neither will make or publish any statement (orally or in writing) that becomes or reasonably could be\nexpected to become publicly known, or instigate, assist or participate in the making or publication of any such statement, which would libel, slander\nor disparage (whether or not such disparagement legally constitutes libel or slander) the other or, with respect to Instinet, any of its affiliates or any\nother entity or person within Instinet or its affiliates, any of their affairs or operations, or the reputations of any of their past or present officers,\ndirectors, agents, representatives and employees.\n11. Unauthorized Disclosure. Without the prior written consent of Instinet, except to the extent required by an order of a court having\njurisdiction or under subpoena from an\n5\nappropriate government agency, in which event, Banhidi shall use his best efforts to consult with Instinet prior to responding to any such order or\nsubpoena, Banhidi shall not disclose any confidential or proprietary trade secrets, customer lists, drawings, designs, programs, software, protocols,\ninformation regarding product development, marketing plans, sales plans, manufacturing plans, management organization information, operating\npolicies or manuals, business plans, financial records, packaging design or other financial, commercial, business or technical information (a) relating\nto\nInstinet or any of its Affiliates or (b) that Instinet or any of its Affiliates may receive belonging to suppliers, customers or others who do business\nwith Instinet or any of its Affiliates (collectively, "Confidential Information") to any third person unless such Confidential Information has been\npreviously disclosed to the public or is in the public domain (other than by reason of Banhidi's breach of this Section).\nThe parties further agree that the terms of this Agreement, and the negotiations leading up to it shall not be disclosed by the parties to any\nperson, other than in a proceeding to enforce the terms of this Agreement or pursuant to valid subpoena or court order, with the exception of the\nparties' lawyers, accountants, tax preparers and, with respect to Banhidi, his immediate family, provided that the parties inform any such persons\nthat\nthey must not disclose the same to any person and they agree to that condition. In response to any inquiry from third parties, the parties and their\nattorneys may state only that the parties have resolved the matter.\n12. Rights To Intellectual Property. Banhidi acknowledges and agrees that Instinet is the sole and exclusive owner of all right, title and interest\nin and to all trademarks, copyrights and all other rights in and to all software, computer programs, works of authorship, writings (whether or not\ncopyrightable), inventions (whether or not patentable), discoveries, methods, improvements, processes, ideas, systems, know-how, data, and any\nother intellectual creations of any nature whatsoever that Banhidi developed, or assisted in the development of, in the course of\n6\nhis employment by Instinet (collectively, the "Instinet Intellectual Property"). All Instinet Intellectual Property is deemed to be "work made for\nhire" "pursuant to the United States Copyright Act of 1976 (the "Act") and Instinet thereby owns all right, title and interest in all Instinet Intellectual\nProperty. To the extent that the Instinet Intellectual Property or any part thereof is deemed by any court of competent jurisdiction or any\ngovernmental or regulatory agency not to be a "work made for hire" within the meaning of the Act, the provisions of this section will still control\nand, for the consideration set forth herein, Banhidi hereby irrevocably and absolutely assigns, sets over and grants to Instinet the Instinet Intellectual\nProperty and all of his rights therein. Banhidi further agrees to deliver or execute such documents and to do or refrain from doing such acts as\nInstinet or its nominee may reasonably request to protect its rights in the Instinet Intellectual Property.\n13. Reemployment or Reinstatement. Banhidi agrees not to seek reinstatement or reemployment with Instinet, and hereby waives any rights\nthat may accrue to his from any rejection of any application for employment with Instinet that he may make.\n14. No Admission of Liability.. By entering into this Agreement, the parties do not admit to any liability, wrongdoing, breach of any contract,\ncommission of any tort or the violation of any statute or law alleged by the other to have been violated or otherwise.\n15. Entire Agreement and Severability.. This Agreement constitutes the complete settlement of all issues and disputes existing between Banhidi\nand Instinet as of the date hereof, and may not be modified except by a suitable writing signed by both Banhidi and Instinet. This Agreement has\nbeen entered into by Banhidi and Instinet voluntarily, knowingly, and upon advice of counsel. If any provision of this Agreement is held to\nbe\ninvalid, the remaining provisions shall remain in full force and effect.\n16. Injunctive Relief. Banhidi acknowledges that a violation on Banhidi's part of this Agreement, including in particular violation of the\nprovisions of paragraphs 8, 9, 10 and 11\n7\nwould cause irreparable damage to Instinet. Accordingly, Banhidi agrees that Instinet is entitled to injunctive relief from any court of competent\njurisdiction for any actual or threatened violation of this Agreement in addition to any other remedies it may have.\n17. Change in Control. Instinet agrees that, should it experience a Change in Control (as defined herein), it will undertake to ensure that any\nsuccessor entity shall become legally responsible for Instinet's obligations hereunder. Should Instinet fail to ensure that the successor entity will\nassume Instinet's obligations hereunder, within 30 days of the event constituting a Change of Control, then all remaining compensation obligations\nowed to Banhidi by Instinet shall become immediately due and payable. For purposes of this paragraph, "Change in Control" shall mean: (i) an\nacquisition in open market purchases of Instinet Common Stock by a third party of the greater of 30% or the percentage then owned in aggregate by\nReuters and its controlled affiliates; (ii) a merger or similar combination following which Instinet's shareholders prior to the merger are no longer in\ncontrol of the surviving entity; and/or (iii) a sale of substantially all of Instinet's assets or a liquidation of Instinet.\n18. Breach of Agreement. Banhidi agrees that, without limiting Instinet's remedies, should he commence, continue, join in, or in any other\nmanner attempt to assert any claim released in connection herewith, or otherwise violate in a material fashion any of the terms of this Agreement,\nInstinet shall not be required to make any further payments to Banhidi pursuant to this Agreement and that Instinet shall be entitled to recover all\npayments already made by it (including interest thereon), in addition to all damages, attorney's fees and costs, Instinet incurs in connection with the\nBanhidi's proven breach of this Agreement. Banhidi further agrees that Instinet shall be entitled to the repayments and recovery of damages\ndescribed above without waiver of or prejudice to the release granted by him in connection with this Agreement, and that his proven violation or\nbreach of any provision of this Agreement shall forever release and discharge Instinet from the performance of its obligations arising from the\nAgreement.\n8\n19. Attorney. Fees. The parties agree that, in any suit brought by either party for breach of this Agreement by the other, the non-prevailing party\nwill be liable for the reasonable attorneys fees of the prevailing party.\n20. Execution.\na. Banhidi acknowledges that he has had up to forty-five (45) days from his receipt of this document to review it. Upon execution,\nBanhidi or his attorney must promptly send this document by overnight mail to the General Counsel at Instinet. A copy may be retained by Banhidi.\nb. Following his signing of the Agreement, Banhidi has the right to revoke the Agreement at any time within seven (7) calendar days of\nhis signing it, not including the date of his signing (the "Revocation Period"). Notice of Revocation shall be given in writing and sent by overnight\nmail no later than the seventh day following the date Banhidi signs this Agreement to General Counsel, Instinet Group Incorporated, 3 Times Square\nNew York, NY 10036. If Banhidi does not revoke the Agreement, this Agreement shall be deemed to be effective and to be enforceable as of the last\ndate set forth opposite any signature hereto. If Banhidi gives Notice of Revocation during the Revocation Period in the manner specified above, this\nAgreement shall become null and void and all rights and claims of the parties which would have existed, but for the execution of this Agreement\nshall be restored.\n21. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the law of the State of New York. An\naction for breach of this Agreement may be brought in any court of competent jurisdiction located in New York.\n22. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the heirs, successors and assigns of the\nparties hereto.\n9\nTHE UNDERSIGNED, intending to be legally bound, have executed this Agreement on this 27th day of July, 2005.\nANDREW BANHIDI\nINSTINET GROUP INCORPORATED\n/s/ Andrew Banhidi\nBy:\n/s/ Alexander Goor\nName: Alexander Goor\nTitle: Co-President\nSTATEMENT BY THE EMPLOYEE WHO IS SIGNING BELOW: INSTINET HAS ADVISED ME IN WRITING TO CONSULT WITH AN\nATTORNEY PRIOR TO EXECUTING THIS RELEASE. I HAVE CAREFULLY READ AND FULLY UNDERSTAND THE PROVISIONS OF\nTHIS RELEASE AND HAVE HAD SUFFICIENT TIME AND OPPORTUNITY TO CONSULT WITH MY PERSONAL TAX, FINANCIAL AND\nLEGAL ADVISORS PRIOR TO EXECUTING THIS DOCUMENT, AND I INTEND TO BE LEGALLY BOUND BY ITS TERMS. I\nUNDERSTAND THAT I MAY REVOKE THIS RELEASE WITHIN SEVEN (7) DAYS FOLLOWING MY SIGNING, AND THIS RELEASE\nWILL NOT BECOME ENFORCEABLE OR EFFECTIVE UNTIL THAT SEVEN (7) DAY PERIOD HAS EXPIRED.\nANDREW BANHIDI\nSigned: /s/ Andrew Banhidi\nTHIS IS A RELEASE. READ CAREFULLY BEFORE SIGNING.\n10	EX-10.2 2 dex102.htm SETTLEMENT, RELEASE, COVENANT NOT TO SUE, WAIVER AND NON-DISCLOSURE\nAGREEMENT\nExhibit 10.2\nExecution Copy\nSETTLEMENT, RELEASE, COVENANT NOT\nTO SUE, WAIVER AND NON-DISCLOSURE AGREEMENT\nWHEREAS, ANDREW BANHIDI, individually and on behalf of all his successors, heirs, executors, administrators, legal representatives, and\nassigns (hereinafter referred to collectively as “Banhidi”), and INSTINET GROUP INCORPORATED, on behalf of its parents, subsidiaries\ndivisions and affiliates, and their respective predecessors, successors, assigns, representatives, officers, directors, shareholders, agents, employees\nand attorneys (hereinafter referred to collectively as “Instinet”), have reached agreement with respect to all matters arising out of Banhidi’s\nemployment with Instinet and the termination thereof;\nNOW, THEREFORE, in consideration of the mutual convenants and undertakings set forth herein, Banhidi and Instinet agree as follows:\n1. Termination of Employment. By mutual agreement between the parties, Banhidi’s employment with Instinet shall terminate on August 1,\n2005 (“Termination Date”). Through the Termination Date, Instinet will continue to pay Banhidi at his current base salary of $350,000 per annum,\nwith continuation of Instinet’s benefit programs through such date.\n2. Separation Payments and Benefits. Instinet will pay Banhidi the amounts described below, subject to the provisions of this Agreement. The\npayments to be provided by this paragraph are in place of, and not in addition to, payments Banhidi would otherwise be entitled to pursuant to any\npolicy or practice of Instinet. All payments made pursuant to this paragraph will be reduced by any and all applicable payroll deductions including,\nbut not limited to, federal, state and local tax withholdings.\n(a) Severance Payments. Banhidi will be entitled to receive severance payments for an 18 month period (the “Severance Period”) at the\nrate of $350,000 per annum from the Termination Date through February 1, 2007. During the Severance Period, Banhidi will be eligible to continue\nhis current health and dental coverage for himself and his family, but will not be eligible for life insurance, 401(k) contributions, long-term disability\ninsurance or any other perquisites or benefits.\n1\n(b) Pro Rata Bonus. Within five business days following the date (the “Bonus Payment Date”) annual bonuses for such fiscal year\nare actually paid by Instinet to its active employees, but in no event later than February 28, 2006, Instinet will pay Banhidi $758,630 as his pro rata\nbonus for fiscal year 2005.\n(c) 150% of Average Annual Bonus. Instinet agrees to pay Banhidi two equal installments of $975,000 each, the first such\ninstallment to be paid in February 2006 and the second such installment to be paid in February 2007.\n3. Return of Instinet Property. Banhidi agrees to return to Instinet by no later than the Termination Date, any and all property (including but not\nlimited to files, records, computer software, computer access codes, home computers, laptop computers, pagers, Palm Pilots, fax machines, company\nIDs, business credit cards, proprietary and confidential information) which belongs to Instinet, and shall not retain any copies, duplicates or excerpts\nthereof, except that Instinet agrees to transfer to Banhidi all rights to his Blackberry from the Termination Date. Banhidi will be responsible for all\ncosts relating to the Blackberry from August 2, 2005 forward.\n4. Outplacement Services. At the request of Banhidi, Instinet will make available executive outplacement services to Banhidi, to be provided\nby an outplacement firm to be selected by Instinet, for a period of up to three months. These services will include the provision of an office and\ntelephone for Banhidi to use during the outplacement period.\n5. Instinet Options and Performance Shares. Banhidi agrees that any options awarded to him under Instinet 2000 Stock Option Plan (the\n“Option Plan”) and any performance shares awarded him under the Instinet 2004 Performance Share Plan (the “Performance Share Plan”) will be\ntreated as provided in the Option Plan and the Performance Share Plan.\n2\n6. Full Satisfaction. Banhidi, by entering into this Agreement, accepts the benefits to be conferred on him hereunder in full and complete\nsatisfaction of any and all asserted and unasserted claims of any kind or description against Instinet as of the date of this Agreement, including, but\nnot limited to, claims arising under any federal, state and local fair employment practice law, workers’ compensation law, and any other employee\nrelations statute, executive order, law and ordinance, including, but not limited to, Title VII of the Civil Rights Act of 1964, as amended, the Age\nDiscrimination in Employment Act of 1967, as amended, the Rehabilitation Act of 1973, as amended, the Family and Medical Leave Act, the\nAmericans With Disabilities Act of 1990, as amended, the Civil Rights Acts of 1866 and 1871, and, except as otherwise expressly set forth herein, of\nany other duty and/or other employment related obligation (all of which are hereinafter referred to as “employment relations laws”) as well as any\nclaims arising from tort, tortious course of conduct, contract (including without limitation any claims arising under Banhidi’s Employment\nAgreement dated November 1, 2003, any offer letter or secondment letter), obligations of “good faith,” public policy, statute, common law, equity,\nand all claims for wages and benefits, monetary and equitable relief, punitive and compensatory relief, and attorneys’ fees and costs.\n7. Releases.\n(A) In consideration of the covenants and undertakings above, Banhidi releases and discharges Instinet from any and all liability, and waives\nany and all rights of any kind and description that he has or may have against Instinet as of the date of this Agreement, including, but not limited to,\nany asserted and unasserted claims arising from any employment relations laws, tort, tortious course of conduct, contract (including without\nlimitation any claims arising under Banhidi’s Employment Agreement dated November 1, 2003, any offer letter or secondment letter), public policy,\nstatute, common law, and equity, and claims for wages and benefits, monetary and equitable relief, punitive and compensatory relief, and attorneys’\nfees and costs. The foregoing notwithstanding, Banhidi’s release and waiver do not apply to: (a) his rights\n3\narising out of this Agreement; (b) any rights that Banhidi and any covered dependents may have to purchase health benefit continuation coverage\nunder federal law commonly known as COBRA; (c) any accrued and vested payouts or benefits under Instinet qualified benefit plans; or (d) any\nrights that Banhidi may have to indemnification under Instinet’s general corporate indemnity for acts undertaken by Banhidi within the scope of his\nduties while employed at Instinet.\n(B) Instinet releases and discharges Banhidi from any and all liability, and waives any and all rights of any kind and description that it has or\nmay have against Banhidi as of the date of this Agreement, regarding which Instinet has actual knowledge or should have had knowledge, other than\nrights under this Agreement or arising as a result of any criminal act of Banhidi.\n8. Non-Competition Covenant. Banhidi agrees that he will not, through February 1, 2006, directly or indirectly, become employed by, engage\nin business with, serve as an agent or consultant to, or become a partner, member, principal, stockholder or other owner (other than a holder of less\nthan 1% of the outstanding voting shares of any publicly held company) of any direct market access (“DMA”) broker-dealer or technology vendor\n(including but not limited to ITG, E*Trade Institutional, Lava Trading, Sonic Financial Technologies, Liquidnet, DEx unit of BNY Brokerage, AES\nunit of CSFB, DMA unit of BancAmerica Securities, etc.) in the United States. For these purposes, DMA broker-dealers or technology vendors are\nthose that offer a technology-enhanced consolidated point of entry to electronically and automatically route securities orders to market destinations\nand pools of liquidity. This Section shall not, however, prevent or restrict Banhidi from being employed by an entity that conducts such DMA\nbusiness, provided that Banhidi is not personally involved in the day-to-day activities of such entity in DMA business.\n4\n9. Non-Solicitation Covenant. Banhidi further agrees that he will not (i) through August 1, 2006, directly or indirectly solicit any employee of\nInstinet to leave the employ of Instinet, or otherwise interfere with the relationship of Instinet or any of its Affiliates with any natural person\nthroughout the world who is or was employed by or otherwise engaged to perform services for Instinet or any of its Affiliates at any time during\nwhich Banhidi was employed by Instinet; or (ii) through August 1, 2006, directly or indirectly solicit or initiate contact with any Instinet client to\ntransact with any other company business in which Instinet is engaged, including but not limited to institutional equities, order-matching, clearing\nand after-hours trading, or to reduce or refrain from doing any business with Instinet. The term “client” means any client of Instinet with whom\nBanhidi had personal contact, or for whom he personally transacted business, or whose identity became known to him in connection with his\nrelationship with or employment by Instinet.\n10. Non-Disparagement. Banhidi and Instinet each agree that except, for truthful statements in any proceeding to enforce this Agreement or\npursuant to a valid Subpoena or Court Order, neither will make or publish any statement (orally or in writing) that becomes or reasonably could be\nexpected to become publicly known, or instigate, assist or participate in the making or publication of any such statement, which would libel, slander\nor disparage (whether or not such disparagement legally constitutes libel or slander) the other or, with respect to Instinet, any of its affiliates or any\nother entity or person within Instinet or its affiliates, any of their affairs or operations, or the reputations of any of their past or present officers,\ndirectors, agents, representatives and employees.\n11. Unauthorized Disclosure. Without the prior written consent of Instinet, except to the extent required by an order of a court having\njurisdiction or under subpoena from an\n5\nappropriate government agency, in which event, Banhidi shall use his best efforts to consult with Instinet prior to responding to any such order or\nsubpoena, Banhidi shall not disclose any confidential or proprietary trade secrets, customer lists, drawings, designs, programs, software, protocols,\ninformation regarding product development, marketing plans, sales plans, manufacturing plans, management organization information, operating\npolicies or manuals, business plans, financial records, packaging design or other financial, commercial, business or technical information (a) relating\nto Instinet or any of its Affiliates or (b) that Instinet or any of its Affiliates may receive belonging to suppliers, customers or others who do business\nwith Instinet or any of its Affiliates (collectively, “Confidential Information”) to any third person unless such Confidential Information has been\npreviously disclosed to the public or is in the public domain (other than by reason of Banhidi’s breach of this Section).\nThe parties further agree that the terms of this Agreement, and the negotiations leading up to it shall not be disclosed by the parties to any\nperson, other than in a proceeding to enforce the terms of this Agreement or pursuant to valid subpoena or court order, with the exception of the\nparties’ lawyers, accountants, tax preparers and, with respect to Banhidi, his immediate family, provided that the parties inform any such persons that\nthey must not disclose the same to any person and they agree to that condition. In response to any inquiry from third parties, the parties and their\nattorneys may state only that the parties have resolved the matter.\n12. Rights To Intellectual Property. Banhidi acknowledges and agrees that Instinet is the sole and exclusive owner of all right, title and interest\nin and to all trademarks, copyrights and all other rights in and to all software, computer programs, works of authorship, writings (whether or not\ncopyrightable), inventions (whether or not patentable), discoveries, methods, improvements, processes, ideas, systems, know-how, data, and any\nother intellectual creations of any nature whatsoever that Banhidi developed, or assisted in the development of, in the course of\n6\nhis employment by Instinet (collectively, the “Instinet Intellectual Property”). All Instinet Intellectual Property is deemed to be “work made for\nhire”pursuant to the United States Copyright Act of 1976 (the “Act”) and Instinet thereby owns all right, title and interest in all Instinet Intellectual\nProperty. To the extent that the Instinet Intellectual Property or any part thereof is deemed by any court of competent jurisdiction or any\ngovernmental or regulatory agency not to be a “work made for hire” within the meaning of the Act, the provisions of this section will still control\nand, for the consideration set forth herein, Banhidi hereby irrevocably and absolutely assigns, sets over and grants to Instinet the Instinet Intellectual\nProperty and all of his rights therein. Banhidi further agrees to deliver or execute such documents and to do or refrain from doing such acts as\nInstinet or its nominee may reasonably request to protect its rights in the Instinet Intellectual Property.\n13. Reemployment or Reinstatement. Banhidi agrees not to seek reinstatement or reemployment with Instinet, and hereby waives any rights\nthat may accrue to his from any rejection of any application for employment with Instinet that he may make.\n14. No Admission of Liability. By entering into this Agreement, the parties do not admit to any liability, wrongdoing, breach of any contract,\ncommission of any tort or the violation of any statute or law alleged by the other to have been violated or otherwise.\n15. Entire Agreement and Severability. This Agreement constitutes the complete settlement of all issues and disputes existing between Banhidi\nand Instinet as of the date hereof, and may not be modified except by a suitable writing signed by both Banhidi and Instinet. This Agreement has\nbeen entered into by Banhidi and Instinet voluntarily, knowingly, and upon advice of counsel. If any provision of this Agreement is held to be\ninvalid, the remaining provisions shall remain in full force and effect.\n16. Injunctive Relief. Banhidi acknowledges that a violation on Banhidi’s part of this Agreement, including in particular violation of the\nprovisions of paragraphs 8, 9, 10 and 11\n7\nwould cause irreparable damage to Instinet. Accordingly, Banhidi agrees that Instinet is entitled to injunctive relief from any court of competent\njurisdiction for any actual or threatened violation of this Agreement in addition to any other remedies it may have.\n17. Change in Control. Instinet agrees that, should it experience a Change in Control (as defined herein), it will undertake to ensure that any\nsuccessor entity shall become legally responsible for Instinet’s obligations hereunder. Should Instinet fail to ensure that the successor entity will\nassume Instinet’s obligations hereunder, within 30 days of the event constituting a Change of Control, then all remaining compensation obligations\nowed to Banhidi by Instinet shall become immediately due and payable. For purposes of this paragraph, “Change in Control” shall mean: (i) an\nacquisition in open market purchases of Instinet Common Stock by a third party of the greater of 30% or the percentage then owned in aggregate by\nReuters and its controlled affiliates; (ii) a merger or similar combination following which Instinet’s shareholders prior to the merger are no longer in\ncontrol of the surviving entity; and/or (iii) a sale of substantially all of Instinet’s assets or a liquidation of Instinet.\n18. Breach of Agreement. Banhidi agrees that, without limiting Instinet’s remedies, should he commence, continue, join in, or in any other\nmanner attempt to assert any claim released in connection herewith, or otherwise violate in a material fashion any of the terms of this Agreement,\nInstinet shall not be required to make any further payments to Banhidi pursuant to this Agreement and that Instinet shall be entitled to recover all\npayments already made by it (including interest thereon), in addition to all damages, attorney’s fees and costs, Instinet incurs in connection with the\nBanhidi’s proven breach of this Agreement. Banhidi further agrees that Instinet shall be entitled to the repayments and recovery of damages\ndescribed above without waiver of or prejudice to the release granted by him in connection with this Agreement, and that his proven violation or\nbreach of any provision of this Agreement shall forever release and discharge Instinet from the performance of its obligations arising from the\nAgreement.\n8\n19. Attorney Fees. The parties agree that, in any suit brought by either party for breach of this Agreement by the other, the non-prevailing party\nwill be liable for the reasonable attorneys fees of the prevailing party.\n20. Execution.\na. Banhidi acknowledges that he has had up to forty-five (45) days from his receipt of this document to review it. Upon execution,\nBanhidi or his attorney must promptly send this document by overnight mail to the General Counsel at Instinet. A copy may be retained by Banhidi.\nb. Following his signing of the Agreement, Banhidi has the right to revoke the Agreement at any time within seven (7) calendar days of\nhis signing it, not including the date of his signing (the “Revocation Period”). Notice of Revocation shall be given in writing and sent by overnight\nmail no later than the seventh day following the date Banhidi signs this Agreement to General Counsel, Instinet Group Incorporated, 3 Times Square,\nNew York, NY 10036. If Banhidi does not revoke the Agreement, this Agreement shall be deemed to be effective and to be enforceable as of the last\ndate set forth opposite any signature hereto. If Banhidi gives Notice of Revocation during the Revocation Period in the manner specified above, this\nAgreement shall become null and void and all rights and claims of the parties which would have existed, but for the execution of this Agreement\nshall be restored.\n21. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the law of the State of New York. An\naction for breach of this Agreement may be brought in any court of competent jurisdiction located in New York.\n22. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the heirs, successors and assigns of the\nparties hereto.\n9\nTHE UNDERSIGNED, intending to be legally bound, have executed this Agreement on this 27th day of July, 2005.\nANDREW BANHIDI\nINSTINET GROUP INCORPORATED\n/s/ Andrew Banhidi\nBy: /s/ Alexander Goor\nName: Alexander Goor\nTitle: Co-President\nSTATEMENT BY THE EMPLOYEE WHO IS SIGNING BELOW: INSTINET HAS ADVISED ME IN WRITING TO CONSULT WITH AN\nATTORNEY PRIOR TO EXECUTING THIS RELEASE. I HAVE CAREFULLY READ AND FULLY UNDERSTAND THE PROVISIONS OF\nTHIS RELEASE AND HAVE HAD SUFFICIENT TIME AND OPPORTUNITY TO CONSULT WITH MY PERSONAL TAX, FINANCIAL AND\nLEGAL ADVISORS PRIOR TO EXECUTING THIS DOCUMENT, AND I INTEND TO BE LEGALLY BOUND BY ITS TERMS. I\nUNDERSTAND THAT I MAY REVOKE THIS RELEASE WITHIN SEVEN (7) DAYS FOLLOWING MY SIGNING, AND THIS RELEASE\nWILL NOT BECOME ENFORCEABLE OR EFFECTIVE UNTIL THAT SEVEN (7) DAY PERIOD HAS EXPIRED.\nANDREW BANHIDI\nSigned: /s/ Andrew Banhidi\nTHIS IS A RELEASE. READ CAREFULLY BEFORE SIGNING .\n10
+c47091363755b1f8e9848e685072facd.pdf	effective_date jurisdiction party term	EX-99.(D)(2)(II) 11 d344651dex99d2ii.htm EX-(D)(2)(II)\nExhibit (d)(2)(ii)\nGIGPEAK, INC.\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”), effective 1/16, 2017 (“Effective Date”), is entered into by\nand between GigPeak, Inc., a Delaware corporation having offices at 130 Baytech Drive, San Jose, CA 95134 (“GigPeak”), and\nIntegrated Device Technology, Inc., a Delaware corporation having offices at 6024 Silver Creek Valley Road, San Jose, CA 95138\n(“Investor”) (each herein referred to individually as a “Party,” or collectively as the “Parties”). In consideration of the covenants\nand conditions contained herein, the Parties hereby agree to the following:\nPage 1\n1. PURPOSE\nThe Parties wish to explore a business strategic opportunity of mutual\ninterest (the “Opportunity”), and in connection with the Opportunity, each Party has\ndisclosed, and may further disclose certain confidential technical and business\ninformation (in such capacity a Party disclosing the information, the “Discloser”) to\nthe other Party (in such capacity a Party receiving the information, the “Recipient”),\nthat Discloser desires Recipient to treat as confidential.\n2. CONFIDENTIAL INFORMATION\nA. Definition.\n“ Confidential Information” means (a) any information disclosed\n(directly or indirectly) by Discloser to Recipient pursuant to this Agreement that is in\nwritten, graphic, machine readable or other tangible form objects (including, without\nlimitation, documents, software, prototypes, samples, data sets, and plant and\nequipment) and is marked “Confidential,” “Proprietary” or in some other manner to\nindicate its confidential nature; (b) oral information disclosed (directly or indirectly) by\nDiscloser to Recipient pursuant to this Agreement, provided that such information is\ndesignated as confidential at the time of disclosure and reduced to a written summary\nby Discloser that is marked in a manner to indicate its confidential nature and delivered\nto Recipient within thirty (30) days after its oral disclosure; and (c) information\notherwise reasonably expected to be treated in a confidential manner under the\ncircumstances of disclosure under this Agreement or by the nature of the information\nitself. Confidential Information may include information of a third party that is in the\npossession of Discloser and is disclosed to Recipient under this Agreement.\nB.\nExceptions.\nConfidential Information shall not, however, include any\ninformation that (i) was publicly known or made generally available without a duty of\nconfidentiality prior to the time of disclosure by Discloser to Recipient; (ii) becomes\npublicly known or made generally available without a duty of confidentiality after\ndisclosure by Discloser to Recipient through no wrongful action or inaction of\nRecipient; (iii) is in the rightful possession of Recipient without confidentiality\nobligations at the time of disclosure by Discloser to Recipient as shown by Recipient’s\nthen-contemporaneous written files and records kept in the ordinary course of\nbusiness; (iv) is obtained by Recipient from a third party without an accompanying\nduty of confidentiality without a breach of such third party’s obligations of\nconfidentiality; or (v) is independently developed by Recipient without use of or\nreference to Discloser’s Confidential Information, as shown by written records and\nother competent evidence prepared contemporaneously with such independent\ndevelopment.\nC. Compelled Disclosure. If Recipient becomes legally compelled to disclose any\nConfidential Information, other than pursuant to a confidentiality agreement, Recipient\nwill provide Discloser prompt written notice, if legally permissible, and will use its\nbest efforts to assist Discloser in seeking a protective order or another appropriate\nremedy. If Discloser waives Recipient’s compliance with this Agreement or fails to\nobtain a protective order or other appropriate remedy, Recipient will furnish only that\nportion of the Confidential\nInformation that is legally required to be disclosed, provided that any Confidential\nInformation so disclosed shall maintain its confidentiality protection for all purposes\nother than such legally compelled disclosure.\n3. NONUSE AND NONDISCLOSURE\nRecipient shall not use any Confidential Information of Discloser for any\npurpose except to evaluate and engage in discussions concerning the Opportunity.\nRecipient shall not disclose any Confidential Information of Discloser to third parties\nor to Recipient’s employees, except that, subject to Section 4 below, Recipient may\ndisclose Discloser ’s Confidential Information to those employees of Recipient who are\nrequired to have the information in order to evaluate or engage in discussions\nconcerning the Opportunity. Recipient shall be responsible for any breach of this\nAgreement by its employees, agents and other representatives, it being understood that\nsuch responsibility shall be in addition to and not by way of limitation of any right or\nremedy Discloser may have against such representatives with respect to any such\nbreach. Recipient shall not reverse engineer, disassemble, or decompile any prototypes,\nsoftware, samples, or other tangible objects that embody Discloser’s Confidential\nInformation and that are provided to Recipient under this Agreement.\n4. MAINTENANCE OF CONFIDENTIALITY\nRecipient shall take reasonable measures to protect the secrecy of and\navoid disclosure and unauthorized use of the Confidential Information of Discloser.\nWithout limiting the foregoing, Recipient shall take at least those measures that it\nemploys to protect its own confidential information of a similar nature and shall ensure\nthat its employees who have access to Confidential Information of Discloser have\nsigned a nonuse and nondisclosure agreement in content at least as protective of\nDiscloser’s Confidential Information as the provisions of this Agreement, prior to any\ndisclosure of Confidential Information to such employees. The Recipient shall not\nmake any copies of the Confidential Information of Discloser unless the same are\npreviously approved in writing by Discloser. The Recipient shall reproduce Discloser ’s\nproprietary rights notices on any such authorized copies in the same manner in which\nsuch notices were set forth in or on the original. The Recipient shall promptly notify\nDiscloser of any unauthorized use or disclosure, or suspected unauthorized use or\ndisclosure, of Discloser’s Confidential Information of which Recipient becomes aware.\n5. NO OBLIGATION\nNothing in this Agreement shall obligate either Party to (a) disclose any\nConfidential Information, which shall be disclosed, if at all, solely at the Discloser ’s\noption, or (b) proceed with any transaction between them, and each Party reserves the\nright, in its sole discretion, to terminate the discussions contemplated by this\nAgreement concerning the Opportunity. Nothing in this Agreement shall be construed\nto restrict either Party’s use or disclosure of its own Confidential Information.\nPage 2\n6. NO WARRANTY\nALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS .”\nNEITHER PARTY MAKES ANY WARRANTIES, EXPRESS , IMPLIED OR\nOTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR\nPERFORMANCE OF ANY CONFIDENTIAL INFORMATION, OR WITH\nRESPECT TO NON-INFRINGEMENT OR OTHER VIOLATION OF ANY\nINTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY OR OF RECIPIENT.\n7. RETURN OF MATERIALS\nAll documents and other tangible objects containing or representing\nConfidential Information that have been disclosed by Discloser to Recipient, and all\ncopies or extracts thereof or notes derived therefrom that are in the possession of\nRecipient, shall be and remain the property of Discloser and shall be promptly returned\nto Discloser or destroyed (with proof of such destruction), at Discloser’s choice, either\nupon the Parties’ termination of discussions regarding the Opportunity or upon\nDiscloser ’s prior written request. Notwithstanding the foregoing, if compliance with\nthe foregoing would violate any applicable law, regulation or applicable professional\nstandards of the American Institute of Certified Public Accountants, Public Company\nAccounting Oversight Board or state boards of accountancy, then such information\nmay be retained provided that it is used for no other purpose than to evidence\nRecipient’s or its representatives’ compliance with such law, regulation or professional\nstandard, and that such Information is maintained in confidence as set forth in this\nAgreement.\n8. NO LICENSE\nNothing in this Agreement is intended to grant any rights to Recipient\nunder any patent, mask work right, copyright or other intellectual property right of\nDiscloser, nor shall this Agreement grant Recipient any rights in or to the Confidential\nInformation of Discloser other than the limited right to review such Confidential\nInformation solely for the purpose of determining whether to enter into a transaction\nconcerning the Opportunity as expressly set forth in Section 3 of this Agreement.\n9. NON-SOLICITATION\nEach party hereby agrees that for a period of two (2) years from file date\nof this Agreement, without the prior written consent of the other party in the event a\ntransaction related to the Opportunity is not consummated, it will not (a) solicit to hire\n(or cause or seek to cause to leave the employ of the other party’ any executive of the\nother party or any other employee of other party or any subsidiary with whom it has\nhad contact or who (or whose performance) became known to it in connection with the\nprocess contemplated by this Agreement (provided, however, that a party is not\nrestricted from hiring any such individual who is hired as a result of such individual\nresponding to a general advertisement for employment) or (b) hold any discussions\nregarding the other party or any of its subsidiaries with any suppliers, customers and/or\nother material business relationships of the other party or any of its subsidiaries, except\nfor those contacts or discussions held in the ordinary course of business.\n10. STANDSTILL AGREEMENT\nInvestor hereby agrees that, for a period ending on the earlier of one\n(1) years from the date of this Agreement or the occurrence of a Significant Event (as\ndefined below), neither the Investor nor any of its affiliates or representatives to whom\nit has provided Confidential Information will, unless first invited (on an unsolicited\nbasis in the case of proposed activities involving persons other than GigPeak or its\nsubsidiaries) by GigPeak’s Board of Directors, or a special committee thereof, in\nwriting, directly or indirectly:\n(a)\nacquire, offer or propose to acquire, or agree or seek to acquire,\ndirectly or indirectly, by purchase or otherwise, greater than an aggregate of an\nadditional 5% of the outstanding number of shares of any class of voting securities (as\ndefined below) of GigPeak or any subsidiary thereof, or of any successor to or person\nin control of GigPeak (other than as a result of a Significant Event) or direct or indirect\nrights or options to acquire any such securities, or any material portion of the assets of\nGigPeak or any subsidiary or division thereof, or of any such successor or controlling\nperson (other than as a result of a Significant Event);\n(b) make any public announcement with respect to, or enter into or agree\nto enter into, offer, propose or seek to enter into, or otherwise be involved in or part of,\ndirectly or indirectly, any acquisition transaction or other business combination\ninvolving all or part of GigPeak or its subsidiaries or any acquisition transaction for all\nor a material portion of the assets of GigPeak or any subsidiary or any of their\nrespective businesses;\n(c)\nmake, or in any way participate in, directly or indirectly, any\n“ s olicitation” of “proxies” (as such terms are used in the rules of the Securities and\nExchange Commission) to vote, or seek to advise or influence any person with respect\nto the voting of, any voting securities of GigPeak or any subsidiary thereof;\n(d) form, join or in any way participate in a “group” (within the meaning\nof Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) (a “13D\nGroup”) with respect to any voting securities of GigPeak or any of its subsidiaries;\n(e)\ndirectly or indirectly enter into any discussions, negotiations,\narrangements or understandings with any other person with respect to any of the\nforegoing activities or publicly propose any of such activities to any other person; or\n(f) disclose any intention, plan or arrangement consistent with any of the\nforegoing in a manner that would require public disclosure thereof by GigPeak.\nInvestor acknowledges that its activities not expressly prohibited by this Section\n10 may be subject to applicable federal and state securities laws.\nFor purposes of this Agreement, (i) a “Significant Event” means (A) the acquisition\nby any person or 13D Group of beneficial ownership of voting securities of GigPeak\nrepresenting 15% or more of the then outstanding voting securities of GigPeak; (B) the\nannouncement or commencement by any person or 13D Group of a tender or exchange\noffer to acquire voting securities of GigPeak which, if successful, would result in such\nperson or 13D Group owning, when combined with any other voting securities of\nGigPeak owned by such person or 13D Group, 15% or more of the then outstanding\nvoting securities of GigPeak; (C) file entry into by GigPeak, or determination by\nGigPeak to seek to enter into, of any merger, sale or other business combination\ntransaction pursuant to which the outstanding shares of common stock of GigPeak\nwould be converted into cash or securities of another person or 13D Group or 50% or\nmore of the then outstanding shares of common stock of GigPeak would be owned by\npersons other than the then current holders of shares of common stock of GigPeak, or\nwhich would result in all or a substantial portion of GigPeak’s assets being sold to any\nperson or 13D Group; (D) GigPeak or any of its subsidiaries makes an assignment for\nthe benefit of creditors or commences any proceeding under any bankruptcy,\nreorganization, insolvency, dissolution or liquidation law of any jurisdiction; or (E) any\nsuch petition is filed or any such proceeding is commenced against GigPeak or any of\nits subsidiaries and either (1) GigPeak or such subsidiary by any act indicates its\napproval thereof, consent thereto or acquiescence therein or (2) such petition,\napplication or proceeding is not dismissed within 30 days; (ii) “person” means any\ncorporation, company, group, partnership or other entity or individual (including the\nmedia); and (iii) “voting securities” means at any time shares of any class of capital\nstock of GigPeak which are then entitled to vote\nIN WITNESS WHEREOF, the Parties by their duly authorized representatives have executed this Agreement as of the Effective Date.\nPage 3\ngenerally in the election of directors and any securities convertible or exchangeable\ninto or exercisable for any such shares; provided, that for purposes of this definition\nany securities of GigPeak which at such time are convertible or exchangeable into or\nexercisable for such shares of GigPeak shall be deemed to have been so converted,\nexchanged or exercised.\n11. EXPORT RESTRICTIONS\nAny software and other technical information disclosed under this\nAgreement may be subject to restrictions and controls imposed by the Export\nAdministration Act, Export Administration Regulations and other laws and regulations\nof the United States and any other applicable government or jurisdiction, as enacted\nfrom time to time (the “Acts”). The Parties shall comply with all restrictions and\ncontrols imposed by the Acts.\n12. NO GUARANTY\nRecipient acknowledges and agrees that Discloser is not making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of\nthe Confidential Information, and Disclosure will not have any liability to Recipient or\nany other person resulting from Recipient’s use of the Confidential Information. Only\nthose representations or warranties that are made to Recipient in a definitive agreement\nwhen, as , and if executed, and subject to such limitations and restrictions as may be\nspecified in such definitive agreement, will have any legal effect.\n13. TERM\nThe obligations of Recipient under this Agreement shall survive until such\ntime as all Confidential Information of Discloser hereunder qualifies as any of the\nexceptions to Confidential Information set forth in Section 2.B through no wrongful\naction or inaction of Recipient.\n14. REMEDIES\nRecipient agrees that any violation or threatened violation of this\nAgreement may cause irreparable injury to Discloser, entitling Discloser to seek\ninjunctive relief in addition to all legal remedies. In the event of litigation relating to\nthis Agreement, if a court of competent jurisdiction determines in a final,\nnonappealable order that this Agreement has been breached by the Investor or its\nrepresentatives, then the Investor will reimburse GigPeak for its costs and expenses\n(including legal fees and expenses) incurred in connection with all such litigation.\n15. MISCELLANEOUS\nThis Agreement shall bind and inure to the benefit of the Parties and their\nrespective successors and permitted assigns. Neither Party may assign or otherwise\ntransfer this Agreement without the prior written consent of the other Party, except that\neither Party may assign this Agreement without consent in connection with a merger,\nreorganization, consolidation, or sale of all or substantially all of the assets to which\nthis Agreement pertains, provided that the assigning Party provides prompt written\nnotice to the other Party prior to any such permitted assignment. Any assignment or\ntransfer of this Agreement in violation of the foregoing shall be null and void. This\nAgreement will be interpreted and construed in accordance with the laws of the State\nof California, without regard to conflict of law principles. Each Party hereby represents\nand warrants that the persons executing this Agreement on its behalf have express\nauthority to do so, and, in so doing, to bind such Party thereto. This Agreement\ncontains the entire agreement between the Parties with respect to the Opportunity and\nsupersedes all prior written and oral agreements between the Parties regarding the\nOpportunity. Recipient shall not have any obligation, express or implied by law, with\nrespect to trade secret or proprietary information of Discloser disclosed under this\nAgreement except as set forth herein. If a court or other body of competent jurisdiction\nfinds, or the Parties mutually believe, any provision of this Agreement, or portion\nthereof, to be invalid or unenforceable, such provision will be enforced to the\nmaximum extent permissible so as to effect the intent of the Parties, and the remainder\nof this Agreement will continue in full force and effect. No provision of this\nAgreement may be waived except by a writing executed by the Party against whom the\nwaiver is to be effective. A Party’s failure to enforce any provision of this Agreement\nshall neither be construed as a waiver of the provision nor prevent the Party from\nenforcing any other provision of this Agreement. No provision of this Agreement may\nbe amended or otherwise modified except by a writing signed by the Parties to this\nAgreement. The Parties may execute this Agreement in counterparts, each of which is\ndeemed an original, but all of which together constitute one and the same agreement.\nThis Agreement may be delivered by facsimile transmission, and facsimile copies of\nexecuted signature pages shall be binding as originals.\n16. DISPUTES\nAll disputes arising out of this Agreement will be subject to the exclusive\njurisdiction and venue of the state courts located in Santa Clara County, California and\nthe federal courts located in the Northern District of California and each Party hereby\nconsents to the personal jurisdiction thereof.\nGIGPEAK, INC.\nBy:\n/s/ Avi Katz\nName: Avi Katz\nTitle: CEO\nINTEGRATED DEVICE TECHNOLOGY, INC.\nBy:\n/s/ Sailesh Chittipeddi\nName: Sailesh Chittipeddi\nTitle: VP Global Operations & CTO	EX-99.(D)(2)(II) 11 d344651dex99d2ii.htm EX-(D)(2)(IL)\nExhibit (d)(2)(ii)\nGIGPEAK, INC.\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”), effective 1/16, 2017 (“Effective Date”), is entered into by\nand between GigPeak, Inc., a Delaware corporation having offices at 130 Baytech Drive, San Jose, CA 95134 (“GigPeak”), and\nIntegrated Device Technology, Inc., a Delaware corporation having offices at 6024 Silver Creek Valley Road, San Jose, CA 95138\n(“Investor™) (each herein referred to individually as a “Party,” or collectively as the “Parties”). In consideration of the covenants\nand conditions contained herein, the Parties hereby agree to the following: 1. PURPOSE\nThe Parties wish to explore a business strategic opportunity of mutual\ninterest (the “Opportunity”), and in connection with the Opportunity, each Party has\ndisclosed, and may further disclose certain confidential technical and business\ninformation (in such capacity a Party disclosing the information, the “Discloser”) to\nthe other Party (in such capacity a Party receiving the information, the “Recipient™),\nthat Discloser desires Recipient to treat as confidential.\n2. CONFIDENTIAL INFORMATION\nA. Definition. “Confidential Information” means (a) any information disclosed\n(directly or indirectly) by Discloser to Recipient pursuant to this Agreement that is in\nwritten, graphic, machine readable or other tangible form objects (including, without\nlimitation, documents, software, prototypes, samples, data sets, and plant and\nequipment) and is marked “Confidential,” “Proprietary” or in some other manner to\nindicate its confidential nature; (b) oral information disclosed (directly or indirectly) by\nDiscloser to Recipient pursuant to this Agreement, provided that such information is\ndesignated as confidential at the time of disclosure and reduced to a written summary\nby Discloser that is marked in a manner to indicate its confidential nature and delivered\nto Recipient within thirty (30) days after its oral disclosure; and (c) information\notherwise reasonably expected to be treated in a confidential manner under the\ncircumstances of disclosure under this Agreement or by the nature of the information\nitself. Confidential Information may include information of a third party that is in the\npossession of Discloser and is disclosed to Recipient under this Agreement.\nB. Exceptions. Confidential Information shall not, however, include any\ninformation that (i) was publicly known or made generally available without a duty of\nconfidentiality prior to the time of disclosure by Discloser to Recipient; (ii) becomes\npublicly known or made generally available without a duty of confidentiality after\ndisclosure by Discloser to Recipient through no wrongful action or inaction of\nRecipient; (iii) is in the rightful possession of Recipient without confidentiality\nobligations at the time of disclosure by Discloser to Recipient as shown by Recipient’s\nthen-contemporaneous written files and records kept in the ordinary course of\nbusiness; (iv) is obtained by Recipient from a third party without an accompanying\nduty of confidentiality without a breach of such third party’s obligations of\nconfidentiality; or (v) is independently developed by Recipient without use of or\nreference to Discloser’s Confidential Information, as shown by written records and\nother competent evidence prepared contemporaneously with such independent\ndevelopment.\nC.  Compelled Disclosure. If Recipient becomes legally compelled to disclose any\nConfidential Information, other than pursuant to a confidentiality agreement, Recipient\nwill provide Discloser prompt written notice, if legally permissible, and will use its\nbest efforts to assist Discloser in seeking a protective order or another appropriate\nremedy. If Discloser waives Recipient’s compliance with this Agreement or fails to\nobtain a protective order or other appropriate remedy, Recipient will furnish only that\nportion of the Confidential\nInformation that is legally required to be disclosed, provided that any Confidential\nInformation so disclosed shall maintain its confidentiality protection for all purposes\nother than such legally compelled disclosure.\n3. NONUSE AND NONDISCLOSURE\nRecipient shall not use any Confidential Information of Discloser for any\npurpose except to evaluate and engage in discussions concerning the Opportunity.\nRecipient shall not disclose any Confidential Information of Discloser to third parties\nor to Recipient’s employees, except that, subject to Section 4 below, Recipient may\ndisclose Discloser’s Confidential Information to those employees of Recipient who are\nrequired to have the information in order to evaluate or engage in discussions\nconcerning the Opportunity. Recipient shall be responsible for any breach of this\nAgreement by its employees, agents and other representatives, it being understood that\nsuch responsibility shall be in addition to and not by way of limitation of any right or\nremedy Discloser may have against such representatives with respect to any such\nbreach. Recipient shall not reverse engineer, disassemble, or decompile any prototypes,\nsoftware, samples, or other tangible objects that embody Discloser’s Confidential\nInformation and that are provided to Recipient under this Agreement.\n4. MAINTENANCE OF CONFIDENTIALITY\nRecipient shall take reasonable measures to protect the secrecy of and\navoid disclosure and unauthorized use of the Confidential Information of Discloser.\nWithout limiting the foregoing, Recipient shall take at least those measures that it\nemploys to protect its own confidential information of a similar nature and shall ensure\nthat its employees who have access to Confidential Information of Discloser have\nsigned a nonuse and nondisclosure agreement in content at least as protective of\nDiscloser’s Confidential Information as the provisions of this Agreement, prior to any\ndisclosure of Confidential Information to such employees. The Recipient shall not\nmake any copies of the Confidential Information of Discloser unless the same are\npreviously approved in writing by Discloser. The Recipient shall reproduce Discloser’s\nproprietary rights notices on any such authorized copies in the same manner in which\nsuch notices were set forth in or on the original. The Recipient shall promptly notify\nDiscloser of any unauthorized use or disclosure, or suspected unauthorized use or\ndisclosure, of Discloser’s Confidential Information of which Recipient becomes aware.\n5. NO OBLIGATION\nNothing in this Agreement shall obligate either Party to (a) disclose any\nConfidential Information, which shall be disclosed, if at all, solely at the Discloser’s\noption, or (b) proceed with any transaction between them, and each Party reserves the\nright, in its sole discretion, to terminate the discussions contemplated by this\nAgreement concerning the Opportunity. Nothing in this Agreement shall be construed\nto restrict either Party’s use or disclosure of its own Confidential Information.\nPage 1\f6. NO WARRANTY\nALL CONFIDENTIAL INFORMATION IS PROVIDED “AS 1IS.”\nNEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR\nOTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR\nPERFORMANCE OF ANY CONFIDENTIAL INFORMATION, OR WITH\nRESPECT TO NON-INFRINGEMENT OR OTHER VIOLATION OF ANY\nINTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY OR OF RECIPIENT.\n7. RETURN OF MATERIALS\nAll documents and other tangible objects containing or representing\nConfidential Information that have been disclosed by Discloser to Recipient, and all\ncopies or extracts thereof or notes derived therefrom that are in the possession of\nRecipient, shall be and remain the property of Discloser and shall be promptly returned\nto Discloser or destroyed (with proof of such destruction), at Discloser’s choice, either\nupon the Parties’ termination of discussions regarding the Opportunity or upon\nDiscloser’s prior written request. Notwithstanding the foregoing, if compliance with\nthe foregoing would violate any applicable law, regulation or applicable professional\nstandards of the American Institute of Certified Public Accountants, Public Company\nAccounting Oversight Board or state boards of accountancy, then such information\nmay be retained provided that it is used for no other purpose than to evidence\nRecipient’s or its representatives’ compliance with such law, regulation or professional\nstandard, and that such Information is maintained in confidence as set forth in this\nAgreement.\n8. NO LICENSE\nNothing in this Agreement is intended to grant any rights to Recipient\nunder any patent, mask work right, copyright or other intellectual property right of\nDiscloser, nor shall this Agreement grant Recipient any rights in or to the Confidential\nInformation of Discloser other than the limited right to review such Confidential\nInformation solely for the purpose of determining whether to enter into a transaction\nconcerning the Opportunity as expressly set forth in Section 3 of this Agreement.\n9. NON-SOLICITATION\nEach party hereby agrees that for a period of two (2) years from file date\nof this Agreement, without the prior written consent of the other party in the event a\ntransaction related to the Opportunity is not consummated, it will not (a) solicit to hire\n(or cause or seek to cause to leave the employ of the other party’ any executive of the\nother party or any other employee of other party or any subsidiary with whom it has\nhad contact or who (or whose performance) became known to it in connection with the\nprocess contemplated by this Agreement (provided, however, that a party is not\nrestricted from hiring any such individual who is hired as a result of such individual\nresponding to a general advertisement for employment) or (b) hold any discussions\nregarding the other party or any of its subsidiaries with any suppliers, customers and/or\nother material business relationships of the other party or any of its subsidiaries, except\nfor those contacts or discussions held in the ordinary course of business.\n10. STANDSTILL AGREEMENT\nInvestor hereby agrees that, for a period ending on the earlier of one\n(1) years from the date of this Agreement or the occurrence of a Significant Event (as\ndefined below), neither the Investor nor any of its affiliates or representatives to whom\nit has provided Confidential Information will, unless first invited (on an unsolicited\nbasis in the case of proposed activities involving persons other than GigPeak or its\nsubsidiaries) by GigPeak’s Board of Directors, or a special committee thereof, in\nwriting, directly or indirectly:\n(a) acquire, offer or propose to acquire, or agree or seek to acquire,\ndirectly or indirectly, by purchase or otherwise, greater than an aggregate of an\nadditional 5% of the outstanding number of shares of any class of voting securities (as\ndefined below) of GigPeak or any subsidiary thereof, or of any successor to or person\nin control of GigPeak (other than as a result of a Significant Event) or direct or indirect\nrights or options to acquire any such securities, or any material portion of the assets of\nGigPeak or any subsidiary or division thereof, or of any such successor or controlling\nperson (other than as a result of a Significant Event);\n(b) make any public announcement with respect to, or enter into or agree\nto enter into, offer, propose or seek to enter into, or otherwise be involved in or part of,\ndirectly or indirectly, any acquisition transaction or other business combination\ninvolving all or part of GigPeak or its subsidiaries or any acquisition transaction for all\nor a material portion of the assets of GigPeak or any subsidiary or any of their\nrespective businesses;\n(@] make, or in any way participate in, directly or indirectly, any\n“solicitation” of “proxies” (as such terms are used in the rules of the Securities and\nExchange Commission) to vote, or seek to advise or influence any person with respect\nto the voting of, any voting securities of GigPeak or any subsidiary thereof;\n(d) form, join or in any way participate in a “group” (within the meaning\nof Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) (a “13D\nGroup”) with respect to any voting securities of GigPeak or any of its subsidiaries;\n(e) directly or indirectly enter into any discussions, negotiations,\narrangements or understandings with any other person with respect to any of the\nforegoing activities or publicly propose any of such activities to any other person; or\n(f) disclose any intention, plan or arrangement consistent with any of the\nforegoing in a manner that would require public disclosure thereof by GigPeak.\nInvestor acknowledges that its activities not expressly prohibited by this Section\n10 may be subject to applicable federal and state securities laws.\nFor purposes of this Agreement, (i) a “Significant Event” means (A) the acquisition\nby any person or 13D Group of beneficial ownership of voting securities of GigPeak\nrepresenting 15% or more of the then outstanding voting securities of GigPeak; (B) the\nannouncement or commencement by any person or 13D Group of a tender or exchange\noffer to acquire voting securities of GigPeak which, if successful, would result in such\nperson or 13D Group owning, when combined with any other voting securities of\nGigPeak owned by such person or 13D Group, 15% or more of the then outstanding\nvoting securities of GigPeak; (C) file entry into by GigPeak, or determination by\nGigPeak to seek to enter into, of any merger, sale or other business combination\ntransaction pursuant to which the outstanding shares of common stock of GigPeak\nwould be converted into cash or securities of another person or 13D Group or 50% or\nmore of the then outstanding shares of common stock of GigPeak would be owned by\npersons other than the then current holders of shares of common stock of GigPeak, or\nwhich would result in all or a substantial portion of GigPeak’s assets being sold to any\nperson or 13D Group; (D) GigPeak or any of its subsidiaries makes an assignment for\nthe benefit of creditors or commences any proceeding under any bankruptcy,\nreorganization, insolvency, dissolution or liquidation law of any jurisdiction; or (E) any\nsuch petition is filed or any such proceeding is commenced against GigPeak or any of\nits subsidiaries and either (1) GigPeak or such subsidiary by any act indicates its\napproval thereof, consent thereto or acquiescence therein or (2) such petition,\napplication or proceeding is not dismissed within 30 days; (ii) “person” means any\ncorporation, company, group, partnership or other entity or individual (including the\nmedia); and (iii) “veoting securities” means at any time shares of any class of capital\nstock of GigPeak which are then entitled to vote\nPage 2\fgenerally in the election of directors and any securities convertible or exchangeable\ninto or exercisable for any such shares; provided, that for purposes of this definition\nany securities of GigPeak which at such time are convertible or exchangeable into or\nexercisable for such shares of GigPeak shall be deemed to have been so converted,\nexchanged or exercised.\n11. EXPORT RESTRICTIONS\nAny software and other technical information disclosed under this\nAgreement may be subject to restrictions and controls imposed by the Export\nAdministration Act, Export Administration Regulations and other laws and regulations\nof the United States and any other applicable government or jurisdiction, as enacted\nfrom time to time (the “Acts”). The Parties shall comply with all restrictions and\ncontrols imposed by the Acts.\n12. NO GUARANTY\nRecipient acknowledges and agrees that Discloser is not making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of\nthe Confidential Information, and Disclosure will not have any liability to Recipient or\nany other person resulting from Recipient’s use of the Confidential Information. Only\nthose representations or warranties that are made to Recipient in a definitive agreement\nwhen, as, and if executed, and subject to such limitations and restrictions as may be\nspecified in such definitive agreement, will have any legal effect.\n13. TERM\nThe obligations of Recipient under this Agreement shall survive until such\ntime as all Confidential Information of Discloser hereunder qualifies as any of the\nexceptions to Confidential Information set forth in Section 2.B through no wrongful\naction or inaction of Recipient.\n14. REMEDIES\nRecipient agrees that any violation or threatened violation of this\nAgreement may cause irreparable injury to Discloser, entitling Discloser to seek\ninjunctive relief in addition to all legal remedies. In the event of litigation relating to\nthis Agreement, if a court of competent jurisdiction determines in a final,\nnonappealable order that this Agreement has been breached by the Investor or its\nrepresentatives, then the Investor will reimburse GigPeak for its costs and expenses\n(including legal fees and expenses) incurred in connection with all such litigation.\n15. MISCELLANEOUS\nThis Agreement shall bind and inure to the benefit of the Parties and their\nrespective successors and permitted assigns. Neither Party may assign or otherwise\ntransfer this Agreement without the prior written consent of the other Party, except that\neither Party may assign this Agreement without consent in connection with a merger,\nreorganization, consolidation, or sale of all or substantially all of the assets to which\nthis Agreement pertains, provided that the assigning Party provides prompt written\nnotice to the other Party prior to any such permitted assignment. Any assignment or\ntransfer of this Agreement in violation of the foregoing shall be null and void. This\nAgreement will be interpreted and construed in accordance with the laws of the State\nof California, without regard to conflict of law principles. Each Party hereby represents\nand warrants that the persons executing this Agreement on its behalf have express\nauthority to do so, and, in so doing, to bind such Party thereto. This Agreement\ncontains the entire agreement between the Parties with respect to the Opportunity and\nsupersedes all prior written and oral agreements between the Parties regarding the\nOpportunity. Recipient shall not have any obligation, express or implied by law, with\nrespect to trade secret or proprietary information of Discloser disclosed under this\nAgreement except as set forth herein. If a court or other body of competent jurisdiction\nfinds, or the Parties mutually believe, any provision of this Agreement, or portion\nthereof, to be invalid or unenforceable, such provision will be enforced to the\nmaximum extent permissible so as to effect the intent of the Parties, and the remainder\nof this Agreement will continue in full force and effect. No provision of this\nAgreement may be waived except by a writing executed by the Party against whom the\nwaiver is to be effective. A Party’s failure to enforce any provision of this Agreement\nshall neither be construed as a waiver of the provision nor prevent the Party from\nenforcing any other provision of this Agreement. No provision of this Agreement may\nbe amended or otherwise modified except by a writing signed by the Parties to this\nAgreement. The Parties may execute this Agreement in counterparts, each of which is\ndeemed an original, but all of which together constitute one and the same agreement.\nThis Agreement may be delivered by facsimile transmission, and facsimile copies of\nexecuted signature pages shall be binding as originals.\n16. DISPUTES\nAll disputes arising out of this Agreement will be subject to the exclusive\njurisdiction and venue of the state courts located in Santa Clara County, California and\nthe federal courts located in the Northern District of California and each Party hereby\nconsents to the personal jurisdiction thereof.\nIN WITNESS WHEREOF, the Parties by their duly authorized representatives have executed this Agreement as of the Effective Date. GIGPEAK, INC.\nBy: /s/ Avi Katz\nName: Avi Katz\nTitle: CEO\nINTEGRATED DEVICE TECHNOLOGY, INC.\nBy: /s/ Sailesh Chittipeddi\nName:  Sailesh Chittipeddi\nTitle: VP Global Operations & CTO\nPage 3	EX-99.(D)(2)(II) 11 d344651dex99d2ii.htn EX-(D)(2)(II)\nExhibit (d)(2)(ii)\nGIGPEAK, INC.\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this "Agreement"), effective 1/16, 2017 ("Effective Date"), is\nentered\ninto\nby\nand\nbetween GigPeak, Inc., a Delaware corporation having offices at 130 Baytech Drive, San Jose, CA 95134 ("GigPeak"), and\nIntegrated Device Technology, Inc., a Delaware corporation having offices at 6024 Silver Creek Valley Road, San Jose, CA 95138\n("Investor") (each herein referred to individually as a "Party," or collectively as the "Parties"). In consideration of the covenants\nand conditions contained herein, the Parties hereby agree to the following:\n1. PURPOSE\nInformation that is legally required to be disclosed, provided that any Confidential\nThe Parties wish to explore a business strategic opportunity of mutual\nInformation so disclosed shall maintain its confidentiality protection for all purposes\ninterest (the "Opportunity"), and in connection with the Opportunity, each Party has\nother than such legally compelled disclosure.\ndisclosed, and may further disclose certain confidential technical and business\n3.\nNONUSE AND NONDISCLOSURE\ninformation (in such capacity a Party disclosing the information, the "Discloser") to\nthe other Party (in such capacity a Party receiving the information, the "Recipient"),\nRecipient shall not use any Confidential Information of Discloser for any\nthat Discloser desires Recipient to treat as confidential.\npurpose except to evaluate and engage in discussions concerning the Opportunity.\nRecipient shall not disclose any Confidential Information of Discloser to third parties\n2.\nCONFIDENTIAL INFORMATION\nor to Recipient's employees, except that, subject to Section 4 below, Recipient may\ndisclose Discloser's Confidential Information to those employees of Recipient who are\nA. Definition. "Confidential Information" means (a) any information disclosed\n(directly or indirectly) by Discloser to Recipient pursuant to this Agreement that is in\nrequired to have the information in order to evaluate or engage in discussions\nwritten, graphic, machine readable or other tangible form objects (including, without\nconcerning the Opportunity. Recipient shall be responsible for any breach of this\nlimitation, documents, software, prototypes, samples, data sets, and plant and\nAgreement by its employees, agents and other representatives, it being understood that\nequipment) and is marked "Confidential," "Proprietary" or in some other manner to\nsuch responsibility shall be in addition to and not by way of limitation of any right or\nindicate its confidential nature; (b) oral information disclosed (directly or indirectly) by\nremedy Discloser may have against such representatives with respect to any such\nDiscloser to Recipient pursuant to this Agreement, provided that such information is\nbreach. Recipient shall not reverse engineer, disassemble, or decompile any prototypes,\ndesignated as confidential at the time of disclosure and reduced to a written summary\nsoftware, samples, or other tangible objects that embody Discloser's Confidential\nby Discloser that is marked in a manner to indicate its confidential nature and delivered\nInformation and that are provided to Recipient under this Agreement.\nto Recipient within thirty (30) days after its oral disclosure; and (c) information\n4.\nMAINTENANCE OF CONFIDENTIALITY\notherwise reasonably expected to be treated in a confidential manner under the\ncircumstances of disclosure under this Agreement or by the nature of the information\nRecipient shall take reasonable measures to protect the secrecy of and\nitself. Confidential Information may include information of a third party that is in the\navoid disclosure and unauthorized use of the Confidential Information of Discloser.\npossession of Discloser and is disclosed to Recipient under this Agreement.\nWithout limiting the foregoing, Recipient shall take at least those measures that it\nemploys to protect its own confidential information of a similar nature and shall ensure\nB.\nExceptions. Confidential Information shall not, however, include any\nthat its employees who have access to Confidential Information of Discloser have\ninformation that (i) was publicly known or made generally available without a duty of\nsigned a nonuse and nondisclosure agreement in content at least as protective of\nconfidentiality prior to the time of disclosure by Discloser to Recipient; (ii) becomes\nDiscloser's Confidential Information as the provisions of this Agreement, prior to any\npublicly known or made generally available without a duty of confidentiality after\ndisclosure of Confidentia Information to such employees. The Recipient shall not\ndisclosure by Discloser to Recipient through no wrongful action or inaction of\nmake any copies of the Confidential Information of Discloser unless the same are\nRecipient (iii) is in the rightful possession of Recipient without confidentiality\npreviously approved in writing by Discloser. The Recipient shall reproduce Discloser's\nobligations at the time of disclosure by Discloser to Recipient as shown by Recipient's\nproprietary rights notices on any such authorized copies in the same manner in which\nthen-contemporaneous written files and records kept in the ordinary course of\nsuch notices were set forth in or on the original. The Recipient shall promptly notify\nbusiness; (iv) is obtained by Recipient from a third party without an accompanying\nDiscloser of any unauthorized use or disclosure, or suspected unauthorized use or\nduty of confidentiality without a breach of such third party's obligations of\ndisclosure, of Discloser's Confidential Information of which Recipient becomes aware.\nconfidentiality; or (v) is independently developed by Recipient without use of or\nreference to Discloser's Confidential Information, as shown by written records and\n5.\nNo OBLIGATION\nother competent evidence prepared contemporaneously with such independent\ndevelopment.\nNothing in this Agreement shall obligate either Party to (a) disclose any\nConfidential Information, which shall be disclosed, if at all, solely at the Discloser's\nC. Compelled Disclosure. If Recipient becomes legally compelled to disclose any\noption, or (b) proceed with any transaction between them, and each Party reserves the\nConfidential Information, other than pursuant to a confidentiality agreement, Recipient\nright, in its sole discretion, to terminate the discussions contemplated by this\nwill provide Discloser prompt written notice, if legally permissible, and will use its\nAgreement concerning the Opportunity. Nothing in this Agreement shall be construed\nbest efforts to assist Discloser in seeking a protective order or another appropriate\nto restrict either Party's use or disclosure of its own Confidential Information.\nremedy. If Discloser waives Recipient's compliance with this Agreement or fails to\nobtain a protective order or other appropriate remedy, Recipient will furnish only that\nportion of the Confidential\nPage 1\n6.\nNo WARRANTY\n(a) acquire, offer or propose to acquire, or agree or seek to acquire,\nALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS."\ndirectly or indirectly, by purchase or otherwise, greater than an aggregate of an\nadditional 5% of the outstanding number of shares of any class of voting securities (as\nNEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, IMPLIED OR\ndefined below) of GigPeak or any subsidiary thereof, or of any successor to or person\nOTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR\nin control of GigPeak (other than as a result of a Significant Event) or direct or indirect\nPERFORMANCE OF ANY CONFIDENTIAL INFORMATION, OR WITH\nRESPECT TO NON-INFRINGEMENT OR OTHER VIOLATION OF ANY\nrights or options to acquire any such securities, or any material portion of the assets of\nINTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY OR OF RECIPIENT.\nGigPeak or any subsidiary or division thereof, or of any such successor or controlling\nperson (other than as a result of a Significant Event);\n7.\nRETURN OF MATERIALS\n(b) make any public announcement with respect to, or enter into or agree\nAll documents and other tangible objects containing or representing\nto enter into, offer, propose or seek to enter into, or otherwise be involved in or part of,\nConfidential Information that have been disclosed by Discloser to Recipient, and all\ndirectly\nor\nindirectly,\nany\nacquisition\ntransaction\nor\nother\nbusiness\ncombination\ncopies or extracts thereof or notes derived therefrom that are in the possession of\ninvolving all or part of GigPeak or its subsidiaries or any acquisition transaction for all\nRecipient, shall be and remain the property of Discloser and shall be promptly returned\nor a material portion of the assets of GigPeak or any subsidiary or any of their\nto Discloser or destroyed (with proof of such destruction), at Discloser's choice, either\nrespective businesses;\nupon the Parties' termination of discussions regarding the Opportunity or upon\n(c) make, or in any way participate in, directly or indirectly, any\nDiscloser's prior written request. Notwithstanding the foregoing, if compliance with\n"solicitation" of "proxies" (as such terms are used in the rules of the Securities and\nthe foregoing would violate any applicable law, regulation or applicable professional\nExchange Commission) to vote, or seek to advise or influence any person with respect\nstandards of the American Institute of Certified Public Accountants, Public Company\nto the voting of, any voting securities of GigPeak or any subsidiary thereof;\nAccounting Oversight Board or state boards of accountancy, then such information\nmay be retained provided that it is used for no other purpose than to evidence\n(d) form, join or in any way participate in a "group" (within the meaning\nRecipient's or its representatives' compliance with such law, regulation or professional\nof Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) (a "13D\nstandard, and that such Information is maintained in confidence as set forth in this\nGroup") with respect to any voting securities of GigPeak or any of its subsidiaries;\nAgreement.\n(e) directly or indirectly enter into any discussions negotiations,\n8.\nNo LICENSE\narrangements or understandings with any other person with respect to any of the\nforegoing activities or publicly propose any of such activities to any other person; or\nNothing in this Agreement is intended to grant any rights to Recipient\nunder any patent, mask work right, copyright or other intellectual property right of\n(f) disclose any intention, plan or arrangement consistent with any of the\nDiscloser, nor shall this Agreement grant Recipient any rights in or to the Confidential\nforegoing in a manner that would require public disclosure thereof by GigPeak.\nInformation Information solely of Discloser for the other purpose than of determining the limited right whether to review to enter such into a Confidential transaction\nInvestor acknowledges that its activities not expressly prohibited by this Section\nconcerning the Opportunity as expressly set forth in Section 3 of this Agreement.\n10 may be subject to applicable federal and state securities laws.\n9. NON-SOLICITATION\nFor purposes of this Agreement, (i) a "Significant Event" means (A) the acquisition\nby any person or 13D Group of beneficial ownership of voting securities of GigPeak\nEach party hereby agrees that for a period of two (2) years from file date\nrepresenting 15% or more of the then outstanding voting securities of GigPeak; (B) the\nof this Agreement, without the prior written consent of the other party in the event a\nannouncement or commencement by any person or 13D Group of a tender or exchange\ntransaction related to the Opportunity is not consummated, it will not (a) solicit to hire\noffer to acquire voting securities of GigPeak which, if successful, would result in such\n(or other cause party or or seek any to other cause employee to leave the of other employ party of the or any other subsidiary party' any with executive whom of it has the\nperson\nor\n13D\nGroup\nowning,\nwhen\ncombined\nwith\nany\nother\nvoting\nsecurities\nof\nGigPeak owned by such person or 13D Group, 15% or more of the then outstanding\nhad contact or who (or whose performance) became known to it in connection with the\nvoting securities of GigPeak; (C) file entry into by GigPeak, or determination by\nprocess contemplated by this Agreement (provided, however, that a party is not\nGigPeak to seek to enter into, of any merger, sale or other business combination\nrestricted from hiring any such individual who is hired as a result of such individual\ntransaction pursuant to which the outstanding shares of common stock of GigPeak\nresponding to a general advertisement for employment) or (b) hold any discussions\nwould be converted into cash or securities of another person or 13D Group or 50% or\nregarding the other party or any of its subsidiaries with any suppliers, customers and/or\nmore of the then outstanding shares of common stock of GigPeak would be owned by\nother material business relationships of the other party or any of its subsidiaries, except\npersons other than the then current holders of shares of common stock of GigPeak, or\nfor those contacts or discussions held in the ordinary course of business.\nwhich would result in all or a substantial portion of GigPeak's assets being sold to any\nperson or 13D Group; (D) GigPeak or any of its subsidiaries makes an assignment for\n10. STANDSTILL AGREEMENT\nthe benefit of creditors or commences any proceeding under any bankruptcy,\nreorganization, insolvency, dissolution or liquidation law of any jurisdiction; or (E) any\nInvestor hereby agrees that, for a period ending on the earlier of one\nsuch petition is filed or any such proceeding is commenced against GigPeak or any of\n(1) years from the date of this Agreement or the occurrence of a Significant Event (as\nits subsidiaries and either (1) GigPeak or such subsidiary by any act indicates its\ndefined below), neither the Investor nor any of its affiliates or representatives to whom\napproval thereof, consent thereto or acquiescence therein or (2) such petition,\nit has provided Confidential Information will, unless first invited (on an unsolicited\napplication or proceeding is not dismissed within 30 days; (ii) "person" means any\nbasis in the case of proposed activities involving persons other than GigPeak or its\ncorporation, company, group, partnership or other entity or individual (including the\nsubsidiaries) by GigPeak's Board of Directors, or a special committee thereof, in\nmedia); and (iii) "voting securities" means at any time shares of any class of capital\nwriting, directly or indirectly:\nstock of GigPeak which are then entitled to vote\nPage 2\ngenerally in the election of directors and any securities convertible or exchangeable\n15. MISCELLANEOUS\ninto or exercisable for any such shares; provided, that for purposes of this definition\nany securities of GigPeak which at such time are convertible or exchangeable into or\nThis Agreement shall bind and inure to the benefit of the Parties and their\nexercisable for such shares of GigPeak shall be deemed to have been so converted,\nrespective successors and permitted assigns. Neither Party may assign or otherwise\nexchanged or exercised.\ntransfer this Agreement without the prior written consent of the other Party, except that\neither Party may assign this Agreement without consent in connection with a merger,\n11. EXPORT RESTRICTIONS\nreorganization, consolidation, or sale of all or substantially all of the assets to which\nthis Agreement pertains, provided that the assigning Party provides prompt written\nAny software and other technical information disclosed under this\nnotice to the other Party prior to any such permitted assignment. Any assignment or\nAgreement may be subject to restrictions and controls imposed by the Export\ntransfer of this Agreement in violation of the foregoing shall be null and void. This\nAdministration Act, Export Administration Regulations and other laws and regulations\nAgreement will be interpreted and construed in accordance with the laws of the State\nof the United States and any other applicable government or jurisdiction, as enacted\nof California, without regard to conflict of law principles. Each Party hereby represents\nfrom time to time (the "Acts"). The Parties shall comply with all restrictions and\nand warrants that the persons executing this Agreement on its behalf have express\ncontrols imposed by the Acts.\nauthority to do so, and, in so doing, to bind such Party thereto. This Agreement\n12. No GUARANTY\ncontains the entire agreement between the Parties with respect to the Opportunity and\nsupersedes all prior written and oral agreements between the Parties regarding the\nRecipient acknowledges and agrees that Discloser is not making any\nOpportunity. Recipient shall not have any obligation, express or implied by law, with\nrepresentation or warranty, express or implied, as to the accuracy or completeness of\nrespect to trade secret or proprietary information of Discloser disclosed under this\nthe Confidential Information, and Disclosure will not have any liability to Recipient or\nAgreement except as set forth herein. If a court or other body of competent jurisdiction\nany other person resulting from Recipient's use of the Confidential Information. Only\nfinds, or the Parties mutually believe, any provision of this Agreement, or portion\nthose representations or warranties that are made to Recipient in a definitive agreement\nthereof, to be invalid or unenforceable, such provision will be enforced to the\nwhen, as, and if executed, and subject to such limitations and restrictions as may be\nmaximum extent permissible so as to effect the intent of the Parties, and the remainder\nspecified in such definitive agreement, will have any legal effect.\nof this Agreement will continue in full force and effect. No provision of this\nAgreement may be waived except by a writing executed by the Party against whom the\n13. TERM\nwaiver is to be effective. A Party's failure to enforce any provision of this Agreement\nshall neither be construed as a waiver of the provision nor prevent the Party from\nThe obligations of Recipient under this Agreement shall survive until such\nenforcing any other provision of this Agreement. No provision of this Agreement may\ntime as all Confidential Information of Discloser hereunder qualifies as any of the\nbe amended or otherwise modified except by a writing signed by the Parties to this\nexceptions to Confidential Information set forth in Section 2.B through no wrongful\nAgreement. The Parties may execute this Agreement in counterparts, each of which is\naction or inaction of Recipient.\ndeemed an original, but all of which together constitute one and the same agreement.\nThis Agreement may be delivered by facsimile transmission, and facsimile copies of\n14. REMEDIES\nexecuted signature pages shall be binding as originals.\nRecipient agrees that any violation or threatened violation of this\nAgreement may cause irreparable injury to Discloser, entitling Discloser to seek\n16. DISPUTES\ninjunctive relief in addition to all legal remedies. In the event of litigation relating to\nAll disputes arising out of this Agreement will be subject to the exclusive\nthis Agreement, if a court of competent jurisdiction determines in a final,\njurisdiction and venue of the state courts located in Santa Clara County, California and\nnonappealable order that this Agreement has been breached by the Investor or its\nthe federal courts located in the Northern District of California and each Party hereby\nrepresentatives, then the Investor will reimburse GigPeak for its costs and expenses\nconsents to the personal jurisdiction thereof.\n(including legal fees and expenses) incurred in connection with all such litigation.\nIN WITNESS WHEREOF, the Parties by their duly authorized representatives have executed this Agreement as of the Effective Date.\nGIGPEAK, INC.\nINTEGRATED DEVICE TECHNOLOGY, INC.\nBy:\n/s/ Avi Katz\nBy:\n/s/ Sailesh Chittipeddi\nName:\nAvi Katz\nName: Sailesh Chittipeddi\nTitle:\nCEO\nTitle:\nVP Global Operations & CTO\nPage 3	EX-99.(D)(2)(II) 11 d344651dex99d2ii.htm EX-(D)(2)(II)\nExhibit (d)(2)(ii)\nGIGPEAK, INC.\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”), effective 1/16, 2017 (“Effective Date”), is entered into by\nand between GigPeak, Inc., a Delaware corporation having offices at 130 Baytech Drive, San Jose, CA 95134 (“GigPeak”), and\nIntegrated Device Technology, Inc., a Delaware corporation having offices at 6024 Silver Creek Valley Road, San Jose, CA 95138\n(“Investor”) (each herein referred to individually as a “Party,” or collectively as the “Parties”). In consideration of the covenants\nand conditions contained herein, the Parties hereby agree to the following:\nPage 1\n1. PURPOSE\nThe Parties wish to explore a business strategic opportunity of mutual\ninterest (the “Opportunity”), and in connection with the Opportunity, each Party has\ndisclosed, and may further disclose certain confidential technical and business\ninformation (in such capacity a Party disclosing the information, the “Discloser”) to\nthe other Party (in such capacity a Party receiving the information, the “Recipient”),\nthat Discloser desires Recipient to treat as confidential.\n2. CONFIDENTIAL INFORMATION\nA. Definition.\n“ Confidential Information” means (a) any information disclosed\n(directly or indirectly) by Discloser to Recipient pursuant to this Agreement that is in\nwritten, graphic, machine readable or other tangible form objects (including, without\nlimitation, documents, software, prototypes, samples, data sets, and plant and\nequipment) and is marked “Confidential,” “Proprietary” or in some other manner to\nindicate its confidential nature; (b) oral information disclosed (directly or indirectly) by\nDiscloser to Recipient pursuant to this Agreement, provided that such information is\ndesignated as confidential at the time of disclosure and reduced to a written summary\nby Discloser that is marked in a manner to indicate its confidential nature and delivered\nto Recipient within thirty (30) days after its oral disclosure; and (c) information\notherwise reasonably expected to be treated in a confidential manner under the\ncircumstances of disclosure under this Agreement or by the nature of the information\nitself. Confidential Information may include information of a third party that is in the\npossession of Discloser and is disclosed to Recipient under this Agreement.\nB.\nExceptions.\nConfidential Information shall not, however, include any\ninformation that (i) was publicly known or made generally available without a duty of\nconfidentiality prior to the time of disclosure by Discloser to Recipient; (ii) becomes\npublicly known or made generally available without a duty of confidentiality after\ndisclosure by Discloser to Recipient through no wrongful action or inaction of\nRecipient; (iii) is in the rightful possession of Recipient without confidentiality\nobligations at the time of disclosure by Discloser to Recipient as shown by Recipient’s\nthen-contemporaneous written files and records kept in the ordinary course of\nbusiness; (iv) is obtained by Recipient from a third party without an accompanying\nduty of confidentiality without a breach of such third party’s obligations of\nconfidentiality; or (v) is independently developed by Recipient without use of or\nreference to Discloser’s Confidential Information, as shown by written records and\nother competent evidence prepared contemporaneously with such independent\ndevelopment.\nC. Compelled Disclosure. If Recipient becomes legally compelled to disclose any\nConfidential Information, other than pursuant to a confidentiality agreement, Recipient\nwill provide Discloser prompt written notice, if legally permissible, and will use its\nbest efforts to assist Discloser in seeking a protective order or another appropriate\nremedy. If Discloser waives Recipient’s compliance with this Agreement or fails to\nobtain a protective order or other appropriate remedy, Recipient will furnish only that\nportion of the Confidential\nInformation that is legally required to be disclosed, provided that any Confidential\nInformation so disclosed shall maintain its confidentiality protection for all purposes\nother than such legally compelled disclosure.\n3. NONUSE AND NONDISCLOSURE\nRecipient shall not use any Confidential Information of Discloser for any\npurpose except to evaluate and engage in discussions concerning the Opportunity.\nRecipient shall not disclose any Confidential Information of Discloser to third parties\nor to Recipient’s employees, except that, subject to Section 4 below, Recipient may\ndisclose Discloser ’s Confidential Information to those employees of Recipient who are\nrequired to have the information in order to evaluate or engage in discussions\nconcerning the Opportunity. Recipient shall be responsible for any breach of this\nAgreement by its employees, agents and other representatives, it being understood that\nsuch responsibility shall be in addition to and not by way of limitation of any right or\nremedy Discloser may have against such representatives with respect to any such\nbreach. Recipient shall not reverse engineer, disassemble, or decompile any prototypes,\nsoftware, samples, or other tangible objects that embody Discloser’s Confidential\nInformation and that are provided to Recipient under this Agreement.\n4. MAINTENANCE OF CONFIDENTIALITY\nRecipient shall take reasonable measures to protect the secrecy of and\navoid disclosure and unauthorized use of the Confidential Information of Discloser.\nWithout limiting the foregoing, Recipient shall take at least those measures that it\nemploys to protect its own confidential information of a similar nature and shall ensure\nthat its employees who have access to Confidential Information of Discloser have\nsigned a nonuse and nondisclosure agreement in content at least as protective of\nDiscloser’s Confidential Information as the provisions of this Agreement, prior to any\ndisclosure of Confidential Information to such employees. The Recipient shall not\nmake any copies of the Confidential Information of Discloser unless the same are\npreviously approved in writing by Discloser. The Recipient shall reproduce Discloser ’s\nproprietary rights notices on any such authorized copies in the same manner in which\nsuch notices were set forth in or on the original. The Recipient shall promptly notify\nDiscloser of any unauthorized use or disclosure, or suspected unauthorized use or\ndisclosure, of Discloser’s Confidential Information of which Recipient becomes aware.\n5. NO OBLIGATION\nNothing in this Agreement shall obligate either Party to (a) disclose any\nConfidential Information, which shall be disclosed, if at all, solely at the Discloser ’s\noption, or (b) proceed with any transaction between them, and each Party reserves the\nright, in its sole discretion, to terminate the discussions contemplated by this\nAgreement concerning the Opportunity. Nothing in this Agreement shall be construed\nto restrict either Party’s use or disclosure of its own Confidential Information.\nPage 2\n6. NO WARRANTY\nALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS .”\nNEITHER PARTY MAKES ANY WARRANTIES, EXPRESS , IMPLIED OR\nOTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR\nPERFORMANCE OF ANY CONFIDENTIAL INFORMATION, OR WITH\nRESPECT TO NON-INFRINGEMENT OR OTHER VIOLATION OF ANY\nINTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY OR OF RECIPIENT.\n7. RETURN OF MATERIALS\nAll documents and other tangible objects containing or representing\nConfidential Information that have been disclosed by Discloser to Recipient, and all\ncopies or extracts thereof or notes derived therefrom that are in the possession of\nRecipient, shall be and remain the property of Discloser and shall be promptly returned\nto Discloser or destroyed (with proof of such destruction), at Discloser’s choice, either\nupon the Parties’ termination of discussions regarding the Opportunity or upon\nDiscloser ’s prior written request. Notwithstanding the foregoing, if compliance with\nthe foregoing would violate any applicable law, regulation or applicable professional\nstandards of the American Institute of Certified Public Accountants, Public Company\nAccounting Oversight Board or state boards of accountancy, then such information\nmay be retained provided that it is used for no other purpose than to evidence\nRecipient’s or its representatives’ compliance with such law, regulation or professional\nstandard, and that such Information is maintained in confidence as set forth in this\nAgreement.\n8. NO LICENSE\nNothing in this Agreement is intended to grant any rights to Recipient\nunder any patent, mask work right, copyright or other intellectual property right of\nDiscloser, nor shall this Agreement grant Recipient any rights in or to the Confidential\nInformation of Discloser other than the limited right to review such Confidential\nInformation solely for the purpose of determining whether to enter into a transaction\nconcerning the Opportunity as expressly set forth in Section 3 of this Agreement.\n9. NON-SOLICITATION\nEach party hereby agrees that for a period of two (2) years from file date\nof this Agreement, without the prior written consent of the other party in the event a\ntransaction related to the Opportunity is not consummated, it will not (a) solicit to hire\n(or cause or seek to cause to leave the employ of the other party’ any executive of the\nother party or any other employee of other party or any subsidiary with whom it has\nhad contact or who (or whose performance) became known to it in connection with the\nprocess contemplated by this Agreement (provided, however, that a party is not\nrestricted from hiring any such individual who is hired as a result of such individual\nresponding to a general advertisement for employment) or (b) hold any discussions\nregarding the other party or any of its subsidiaries with any suppliers, customers and/or\nother material business relationships of the other party or any of its subsidiaries, except\nfor those contacts or discussions held in the ordinary course of business.\n10. STANDSTILL AGREEMENT\nInvestor hereby agrees that, for a period ending on the earlier of one\n(1) years from the date of this Agreement or the occurrence of a Significant Event (as\ndefined below), neither the Investor nor any of its affiliates or representatives to whom\nit has provided Confidential Information will, unless first invited (on an unsolicited\nbasis in the case of proposed activities involving persons other than GigPeak or its\nsubsidiaries) by GigPeak’s Board of Directors, or a special committee thereof, in\nwriting, directly or indirectly:\n(a)\nacquire, offer or propose to acquire, or agree or seek to acquire,\ndirectly or indirectly, by purchase or otherwise, greater than an aggregate of an\nadditional 5% of the outstanding number of shares of any class of voting securities (as\ndefined below) of GigPeak or any subsidiary thereof, or of any successor to or person\nin control of GigPeak (other than as a result of a Significant Event) or direct or indirect\nrights or options to acquire any such securities, or any material portion of the assets of\nGigPeak or any subsidiary or division thereof, or of any such successor or controlling\nperson (other than as a result of a Significant Event);\n(b) make any public announcement with respect to, or enter into or agree\nto enter into, offer, propose or seek to enter into, or otherwise be involved in or part of,\ndirectly or indirectly, any acquisition transaction or other business combination\ninvolving all or part of GigPeak or its subsidiaries or any acquisition transaction for all\nor a material portion of the assets of GigPeak or any subsidiary or any of their\nrespective businesses;\n(c)\nmake, or in any way participate in, directly or indirectly, any\n“ s olicitation” of “proxies” (as such terms are used in the rules of the Securities and\nExchange Commission) to vote, or seek to advise or influence any person with respect\nto the voting of, any voting securities of GigPeak or any subsidiary thereof;\n(d) form, join or in any way participate in a “group” (within the meaning\nof Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) (a “13D\nGroup”) with respect to any voting securities of GigPeak or any of its subsidiaries;\n(e)\ndirectly or indirectly enter into any discussions, negotiations,\narrangements or understandings with any other person with respect to any of the\nforegoing activities or publicly propose any of such activities to any other person; or\n(f) disclose any intention, plan or arrangement consistent with any of the\nforegoing in a manner that would require public disclosure thereof by GigPeak.\nInvestor acknowledges that its activities not expressly prohibited by this Section\n10 may be subject to applicable federal and state securities laws.\nFor purposes of this Agreement, (i) a “Significant Event” means (A) the acquisition\nby any person or 13D Group of beneficial ownership of voting securities of GigPeak\nrepresenting 15% or more of the then outstanding voting securities of GigPeak; (B) the\nannouncement or commencement by any person or 13D Group of a tender or exchange\noffer to acquire voting securities of GigPeak which, if successful, would result in such\nperson or 13D Group owning, when combined with any other voting securities of\nGigPeak owned by such person or 13D Group, 15% or more of the then outstanding\nvoting securities of GigPeak; (C) file entry into by GigPeak, or determination by\nGigPeak to seek to enter into, of any merger, sale or other business combination\ntransaction pursuant to which the outstanding shares of common stock of GigPeak\nwould be converted into cash or securities of another person or 13D Group or 50% or\nmore of the then outstanding shares of common stock of GigPeak would be owned by\npersons other than the then current holders of shares of common stock of GigPeak, or\nwhich would result in all or a substantial portion of GigPeak’s assets being sold to any\nperson or 13D Group; (D) GigPeak or any of its subsidiaries makes an assignment for\nthe benefit of creditors or commences any proceeding under any bankruptcy,\nreorganization, insolvency, dissolution or liquidation law of any jurisdiction; or (E) any\nsuch petition is filed or any such proceeding is commenced against GigPeak or any of\nits subsidiaries and either (1) GigPeak or such subsidiary by any act indicates its\napproval thereof, consent thereto or acquiescence therein or (2) such petition,\napplication or proceeding is not dismissed within 30 days; (ii) “person” means any\ncorporation, company, group, partnership or other entity or individual (including the\nmedia); and (iii) “voting securities” means at any time shares of any class of capital\nstock of GigPeak which are then entitled to vote\nIN WITNESS WHEREOF, the Parties by their duly authorized representatives have executed this Agreement as of the Effective Date.\nPage 3\ngenerally in the election of directors and any securities convertible or exchangeable\ninto or exercisable for any such shares; provided, that for purposes of this definition\nany securities of GigPeak which at such time are convertible or exchangeable into or\nexercisable for such shares of GigPeak shall be deemed to have been so converted,\nexchanged or exercised.\n11. EXPORT RESTRICTIONS\nAny software and other technical information disclosed under this\nAgreement may be subject to restrictions and controls imposed by the Export\nAdministration Act, Export Administration Regulations and other laws and regulations\nof the United States and any other applicable government or jurisdiction, as enacted\nfrom time to time (the “Acts”). The Parties shall comply with all restrictions and\ncontrols imposed by the Acts.\n12. NO GUARANTY\nRecipient acknowledges and agrees that Discloser is not making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of\nthe Confidential Information, and Disclosure will not have any liability to Recipient or\nany other person resulting from Recipient’s use of the Confidential Information. Only\nthose representations or warranties that are made to Recipient in a definitive agreement\nwhen, as , and if executed, and subject to such limitations and restrictions as may be\nspecified in such definitive agreement, will have any legal effect.\n13. TERM\nThe obligations of Recipient under this Agreement shall survive until such\ntime as all Confidential Information of Discloser hereunder qualifies as any of the\nexceptions to Confidential Information set forth in Section 2.B through no wrongful\naction or inaction of Recipient.\n14. REMEDIES\nRecipient agrees that any violation or threatened violation of this\nAgreement may cause irreparable injury to Discloser, entitling Discloser to seek\ninjunctive relief in addition to all legal remedies. In the event of litigation relating to\nthis Agreement, if a court of competent jurisdiction determines in a final,\nnonappealable order that this Agreement has been breached by the Investor or its\nrepresentatives, then the Investor will reimburse GigPeak for its costs and expenses\n(including legal fees and expenses) incurred in connection with all such litigation.\n15. MISCELLANEOUS\nThis Agreement shall bind and inure to the benefit of the Parties and their\nrespective successors and permitted assigns. Neither Party may assign or otherwise\ntransfer this Agreement without the prior written consent of the other Party, except that\neither Party may assign this Agreement without consent in connection with a merger,\nreorganization, consolidation, or sale of all or substantially all of the assets to which\nthis Agreement pertains, provided that the assigning Party provides prompt written\nnotice to the other Party prior to any such permitted assignment. Any assignment or\ntransfer of this Agreement in violation of the foregoing shall be null and void. This\nAgreement will be interpreted and construed in accordance with the laws of the State\nof California, without regard to conflict of law principles. Each Party hereby represents\nand warrants that the persons executing this Agreement on its behalf have express\nauthority to do so, and, in so doing, to bind such Party thereto. This Agreement\ncontains the entire agreement between the Parties with respect to the Opportunity and\nsupersedes all prior written and oral agreements between the Parties regarding the\nOpportunity. Recipient shall not have any obligation, express or implied by law, with\nrespect to trade secret or proprietary information of Discloser disclosed under this\nAgreement except as set forth herein. If a court or other body of competent jurisdiction\nfinds, or the Parties mutually believe, any provision of this Agreement, or portion\nthereof, to be invalid or unenforceable, such provision will be enforced to the\nmaximum extent permissible so as to effect the intent of the Parties, and the remainder\nof this Agreement will continue in full force and effect. No provision of this\nAgreement may be waived except by a writing executed by the Party against whom the\nwaiver is to be effective. A Party’s failure to enforce any provision of this Agreement\nshall neither be construed as a waiver of the provision nor prevent the Party from\nenforcing any other provision of this Agreement. No provision of this Agreement may\nbe amended or otherwise modified except by a writing signed by the Parties to this\nAgreement. The Parties may execute this Agreement in counterparts, each of which is\ndeemed an original, but all of which together constitute one and the same agreement.\nThis Agreement may be delivered by facsimile transmission, and facsimile copies of\nexecuted signature pages shall be binding as originals.\n16. DISPUTES\nAll disputes arising out of this Agreement will be subject to the exclusive\njurisdiction and venue of the state courts located in Santa Clara County, California and\nthe federal courts located in the Northern District of California and each Party hereby\nconsents to the personal jurisdiction thereof.\nGIGPEAK, INC.\nBy:\n/s/ Avi Katz\nName: Avi Katz\nTitle: CEO\nINTEGRATED DEVICE TECHNOLOGY, INC.\nBy:\n/s/ Sailesh Chittipeddi\nName: Sailesh Chittipeddi\nTitle: VP Global Operations & CTO
+c679c8394acaa72a263e8ff71b434c04.pdf	effective_date jurisdiction party term	EX-99.(D)(6) 10 dex99d6.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nLOGO\nThird Wave Technologies\n502 South Rosa Road\nMadison, WI 53719\nFax: 608.663.7037\nWeb: www.twt.com\nMarch 28, 2008\nSTRICTLY CONFIDENTIAL\nHologic, Inc.\n35 Crosby Drive\nBedford, MA 01730\nU.S .A.\nAttention: Rohan Hastie, Senior Director, Business Development\nLadies and Gentlemen:\nIn connection with the consideration of a possible business transaction (the “Transaction”) between Hologic, Inc. (“Company”) and Third\nWave Technologies, Inc. (“TWT”), TWT has and will provide Company from time to time with certain non-public information regarding TWT’s\noperations, assets, liabilities, business prospects, financial projections and financial condition, as well as information pertaining to other matters that\nmay arise in connection with Company’s evaluation of the Transaction. As a condition to, and in consideration of, such information being provided\nor made available to Company and its Representatives (as defined below), Company agrees to treat such information (whether prepared by TWT, its\nRepresentatives or otherwise and regardless of the form of communication) which is provided or made available hereunder to Company or to its\nRepresentatives by or on behalf of TWT or its Representatives in accordance with the provisions of this letter agreement, and to take or abstain from\ntaking certain other actions set forth herein. Each of TWT and Company is sometimes referred to herein individually as a “party” and collectively as\nthe “parties.”\nAs used herein, the term “Evaluation Material” shall mean any information (whether prepared by TWT or any of its Representatives or\notherwise and whether oral, written or otherwise) which is furnished after execution of this letter agreement to Company or any of its\nRepresentatives by or on behalf of TWT or any of its Representatives for the purpose of Company’s evaluation of the Transaction, including any\nreport, analysis, compilation, study, interpretation, forecast, record, reproduction, summary, note or other material prepared by Company or any of its\nRepresentatives, in whatever form maintained (whether documentary, computer storage or otherwise) to the extent containing, in whole or in part,\nany such information.\nNotwithstanding the foregoing, the term “Evaluation Material” does not include information which: (i) is or becomes generally available to the\npublic other than as a result of a disclosure by Company or its Representatives, or anyone to whom Company or its Representatives transmits such\ninformation; (ii) as evidenced by written records, was already in the possession of Company or its Representatives, provided that the source of such\ninformation, insofar as is known to Company or any of its Representatives, was not prohibited from transmitting such information to Company or its\nRepresentatives by a contractual, legal, fiduciary or other obligation to TWT; (iii) as evidenced by written records, was or becomes available to\nCompany or its Representatives on a non-confidential basis from a source, other than TWT or one of its Representatives, provided that the source of\nsuch information, insofar as is known to Company, was not prohibited from transmitting such information to Company or its Representatives by a\ncontractual, legal, fiduciary or other obligation to TWT; or (iv) is independently developed by Company or its Representatives without reliance on\nthe Evaluation Materials.\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\nAs used herein, “Representatives” shall mean a person’s officers, directors, subsidiaries and “Affiliates” or “Associates” (as each term is\ndefined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), employees, agents, advisors (including,\nwithout limitation, attorneys, accountants, consultants, prospective lenders and underwriters and financial advisors).\nThe term “person” as used herein shall be broadly interpreted to include, without limitation, the media and any corporation, limited liability\ncompany, company, unincorporated association, group, partnership, individual or other entity, but shall not include the United States Securities\nExchange Commission or other federal or state regulatory agencies. Each term “TWT” and “Company” includes, without limitation, its subsidiaries\nand Affiliates.\nIn consideration of being furnished with the Evaluation Material:\n1. Company hereby agrees that Company has not received from TWT by virtue of this letter agreement any rights or claims with respect to the\nEvaluation Material except as specified herein and that, subject to paragraph 3, Company and its Representatives will keep the Evaluation Material\nconfidential and will not, without the prior written consent of TWT, disclose the Evaluation Material, in whole or in part, or use it, directly or\nindirectly, for any purpose other than for the sole purpose of evaluating a possible Transaction. Moreover, Company agrees to disclose that it is\nevaluating a Transaction and to transmit Evaluation Material only to those Representatives of Company who are assisting Company with evaluating\nsuch Transaction and are informed by Company of the confidential nature of the Evaluation Material and agree with Company to be bound by the\nterms of this letter agreement to the extent stated to be applicable to it prior to the delivery of any Evaluation Material. Company will be responsible\nfor any actions by its Representatives which would be a breach of this letter agreement.\n2.(a) Company agrees that subject to paragraph 3, without the prior written consent of TWT, neither Company nor its Representatives will\ndisclose to any person (other than Company’s Representatives) any information regarding a possible Transaction or the Evaluation Material,\nincluding, without limitation (i) the fact that discussions or negotiations are taking place concerning a possible Transaction, including the status\nthereof, or the termination of discussions or negotiations with TWT, (ii) any of the terms, conditions or other facts with respect to any such possible\nTransaction or of TWT’s consideration of a possible Transaction, (iii) that this letter agreement exists or the terms hereof, or that Evaluation Material\nhas been made available to Company or (iv) any opinion or view with respect to the Evaluation Material; provided that Company or its\nRepresentatives may make such disclosures if Company believes on advice of its counsel that such disclosure must be made by Company or its\nRepresentatives to avoid committing a violation of law or of any rule or regulation of any securities association, stock exchange or national securities\nquotation system on which Company’s or its Representatives’ securities are listed or traded. In such event, Company shall use its reasonable best\nefforts to give advance written notice to TWT. Neither Company nor its Representatives shall consult any third party regarding the possibility for\ncollaboration with Company in connection with a possible Transaction without the prior written consent of TWT.\n(b) TWT agrees that, neither TWT nor its Representatives will disclose to any person (other than TWT’s Representatives) (i) the fact that\ndiscussions or negotiations are taking place concerning a possible Transaction with Company, including the status thereof, or the termination of\ndiscussions or negotiations with Company, (ii) any of the terms, conditions or other facts with respect to any such possible Transaction with the\nCompany or of Company’s consideration of a possible Transaction, or (iii) that this letter agreement exists or the terms hereof, or that Evaluation\nMaterial has been made available to Company; provided that TWT or its Representatives may make such disclosures as TWT determines in good\nfaith upon the advice of counsel may be required by law or any rule or regulation of any securities association, stock exchange or national securities\nquotation system on which TWT’s securities are listed or traded. In such event, TWT shall use its reasonable efforts to give advance written notice to\nCompany.\n3. Company agrees that if Company or any of its Representatives are requested or required (by oral questions, interrogatories, requests for\ninformation or documents, subpoena, civil investigative demand, regulatory request or similar process by any government or governmental agencies\nor authority or by law or regulation) to\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\ndisclose any Evaluation Material, or any of the facts or information referred to in paragraph 2, or any information relating to a possible Transaction,\nCompany will notify TWT timely in writing of the existence, terms and circumstances surrounding such request or requirement (to the extent\npermitted by law) so that TWT, in its sole discretion, may seek a protective order or other appropriate remedy and/or waive compliance with the\nprovisions of this letter agreement; provided that if, in the opinion of Company’s outside counsel, the disclosure to TWT of the factual circumstances\nsurrounding such request or requirement would require disclosure to TWT of confidential information of Company and that such disclosure would\nbe adverse to Company, then TWT will, at its option, either (i) enter into a reasonable confidentiality agreement with respect to such confidential\ninformation or (ii) agree that communication will be made by Company to TWT’s outside counsel on a confidential basis. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by TWT or any of its Representatives, Company or its Representatives are nonetheless\ncompelled to disclose Evaluation Material to any tribunal, then Company or its Representative may, without liability hereunder, disclose to such\ntribunal only that portion of the Evaluation Material which such counsel advises Company or its Representative is required to be disclosed, provided\nthat such party exercises its reasonable best efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by\ncooperating reasonably with TWT to obtain an appropriate protective order or other assurance that such tribunal will accord the Evaluation Material\nconfidential treatment.\n4. Company understands that, except and to the extent called for in a definitive agreement executed by Company and TWT, neither TWT nor\nany of its Representatives makes any representation or warranty hereunder, express or implied, as to the accuracy or completeness of the Evaluation\nMaterial. Company agrees that neither TWT nor its Representatives shall have any liability to Company or any of its Representatives hereunder\nrelating to or resulting from the use of the Evaluation Material, or any errors therein or omissions therefrom or Company’s or its Representative’s\nconsideration, or participation in a process relating to, a possible Transaction.\n5. Each party agrees that neither party hereto will be under any legal obligation of any kind whatsoever hereunder with respect to a\nTransaction, except for the matters specifically agreed to herein. If either party decides that it does not wish to proceed with a Transaction with the\nother party, then such party will promptly inform the other party of that decision. In that case, or at any time upon the request of TWT for any reason,\nCompany shall promptly redeliver to TWT or certify destruction of all Evaluation Material and any other material (including but not limited to\nwritten and computer files) to the extent containing any Evaluation Material (whether prepared by TWT, its Representatives or otherwise) furnished\nto Company or any of its Representatives and will not retain any copies, extracts or other reproductions in whole or in part of such material,\nprovided, Company and its Representatives shall be permitted to retain all or any portion of the Evaluation Material, in each case in accordance with\nthe confidentiality obligations specified in this letter agreement, (i) to the extent required by applicable law or regulatory authority and (ii) one copy\nof any analysis, interpretation or notes prepared by Company based on Evaluation Material may be retained by Company’s legal department.\nNotwithstanding the return or destruction of the Evaluation Material, Company will continue to be bound by its obligations of confidentiality and\nother obligations hereunder and TWT shall continue to be bound by its obligations hereunder until the termination of this letter agreement pursuant\nto Section 19.\n6. Company agrees that it and its Representatives will direct all inquiries and any requests for information concerning a possible Transaction to\nMerrill Lynch & Co. (“Merrill Lynch”) and XMS Capital Partners (“XMS”). Except as authorized by Merrill Lynch and XMS, Company shall not\ncontact any other members of management or employees of TWT or any customers, suppliers or other third parties (other than Company’s\nRepresentatives) that conduct business with TWT with respect to the Transaction. Notwithstanding anything to the contrary in this letter agreement,\nhowever, the parties and their Representatives also may continue to engage in the same course of communications as they have in the past in the\nordinary course of business.\n7. Company agrees that, for a period of twelve (12) months from the date of this letter agreement, it will not, without the prior written consent\nof TWT, directly or indirectly, solicit for employment or enter into any employment agreement (conditional or otherwise) with or employ any\nemployee of TWT (or anyone who was at any\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\ntime during the twelve (12) month period prior to the date of such solicitation or employment an employee of TWT), except that Company shall not\nbe precluded from hiring an employee who has been terminated by TWT prior to commencement of employment discussions between Company and\nsuch employee, provided such hiring is consistent with such employee’s contractual obligations to TWT. The placing of an advertisement of a\nposition by Company to members of the public generally, such as through newspapers, radio or television, or general mass mailings to the public,\nshall not itself constitute a breach of this paragraph 7.\n8. During the period of twelve (12) months from the date of this letter agreement (the “Standstill Period”), the Company and its\nRepresentatives will not, directly or indirectly, in any manner, without the prior written authorization of the Board of Directors of TWT (i) acquire or\nagree to acquire or make any offer or proposal to acquire any common stock of TWT; (ii) assist, advise, encourage, agree with, discuss or negotiate\nor otherwise act in concert with any other persons to acquire or agree to acquire any material assets of TWT; (iii) solicit, or in any way participate in\nany solicitation of, proxies from holders of the common stock of TWT or form, join or in any way participate in a proxy contest with respect to the\ncommon stock of TWT; (iv) make any proposal for or offer of an extraordinary transaction (including, without limitation, by way of a take-over bid,\ntender or exchange offer, amalgamation, merger or other business combination) involving TWT; (v) engage in any discussions or enter into any\nagreements, commitments or understandings with any person related to or any acquisition of securities or material assets of TWT, (vi) otherwise seek\nto influence or control the Board of Directors, management or policies of TWT or any of its affiliates, (vii) seek any modification to or waiver of the\nCompany’s obligations under this Agreement; (viii) make any public announcement with respect to the foregoing, except as may be required by\napplicable law or regulatory authorities; (ix) take any initiative with respect to TWT that reasonably would be expected to require TWT to make a\npublic announcement; or (x) assist, advise or encourage any person in doing any of the foregoing (including by providing or arranging any\nfinancing).\n9. Each party acknowledges that it and its Affiliates and its and their Representatives may become aware of “material nonpublic\ninformation” (as defined under applicable securities laws) regarding the other party. Both parties understand, and will communicate to all Affiliates\nand Representatives and other persons having knowledge of any material nonpublic information, that it and they are required under applicable\nsecurities laws to refrain from trading in securities of the other party while in possession of this information.\n10. Company agrees that an inadvertent production to it by TWT or any of its Representatives of Evaluation Material protected by the attorney\nclient, attorney work product or other applicable privilege (“Privilege”) of TWT or any of its Representatives, is not intended to constitute a waiver\nof any such Privilege by TWT or any of its Representatives and Company agrees that, upon request, it will immediately return such inadvertently\nproduced Evaluation Material.\n11. This letter agreement is the complete and exclusive statement regarding the subject matter hereof and supersedes all prior and\ncontemporaneous agreements, understandings and communications, oral or written, between the parties regarding such subject matter.\n12. The provisions and covenants set forth in this letter agreement may be amended, modified or waived only by an instrument in writing\nexecuted by TWT and Company, specifying the provision or covenant to be waived or amended. No failure or delay by TWT or Company in\nexercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other\nfurther exercise thereof or the exercise of any other right, power, or privilege hereunder.\n13. Any provision of this letter agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent\nnot held invalid or unenforceable.\n14. Notwithstanding any provision to the contrary contained elsewhere herein, the confidentiality obligations contained in this letter agreement\nor in any other agreement between the parties hereto, as they relate to\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\nany negotiated transaction, shall not apply to the federal tax structure or federal tax treatment of the transaction, and Company (and any of its\nRepresentative) may disclose to any and all persons, without limitation of any kind, the federal tax structure and federal tax treatment of any\ntransaction; provided, that such disclosure may not be made until the earliest of (x) the date of the public announcement of discussions relating to the\ntransaction, (y) the date of the public announcement of the transaction, or (z) the date of the execution of a definitive written agreement to enter into\nthe transaction. The preceding sentence is intended to cause the transaction to be treated as not having been offered under conditions of\nconfidentiality for purposes of Section 1.6011–4(b)(3) (or any successor provision) of the Treasury Regulations promulgated under Section 6011 of\nthe Internal Revenue Code of 1986, as amended, and shall be construed in a manner consistent with such purpose. Subject to the proviso with respect\nto disclosure in the first sentence of this paragraph, TWT acknowledges that it has no proprietary or exclusive rights to the federal tax structure of the\ntransaction or any federal tax matter or federal tax idea related to any negotiated transaction.\n15. Each party agrees that money damages would not be a sufficient remedy for any breach of this letter agreement by it; and that, in addition\nto all other remedies, each party shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach,\nand each party further agrees to waive and to use its best commercially reasonable efforts to cause its Affiliates and their respective Representatives\nto waive any requirement for the securing or posting of any bond in connection with such remedy. In addition, each party agrees that if the other\nparty is the prevailing party in any such litigation, the other party shall be entitled to recover from it all fees, costs and expenses of enforcing any\nright of the other party under or with respect to this letter agreement, including without limitation, such reasonable fees and expenses of attorneys,\nwhich shall include, without limitation, all fees, costs and expenses of appeals.\n16. This letter agreement shall be governed by, and construed (both as to validity and performance) in accordance with, the laws of the State of\nDelaware, without regard to the principles of the conflicts of laws thereof. As the letter agreement is the product of negotiations between the parties,\nneither party shall be deemed the drafter for purposes of construing any ambiguity.\n17. This letter agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken\ntogether shall constitute one and the same agreement, it being understood that all of the parties need not sign the same counterpart. This letter\nagreement may be executed and delivered by facsimile or email transmission of a file in “.pdf” or similar format and upon such delivery, each\nsignature shall be deemed to have the same effect as if the original signature had been delivered to the other party.\n18. Each party’s rights (but not its obligations) under this letter agreement may be assigned by such party to any of its Affiliates or to any party\nthat enters into a transaction substantially similar to the Transaction with such other party. This letter agreement shall inure to the benefit of the\nparties hereto and their respective successors and assigns.\n19. Except as otherwise provided herein, this letter agreement shall terminate twenty-four (24) months after the later of (a) the date of this\nletter agreement or (b) the date upon which Company completes returning the materials required to be returned to TWT pursuant to paragraph 5\nabove, if applicable.\n[SIGNATURE PAGE FOLLOWS]\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between TWT and Company.\nVery truly yours,\nTHIRD WAVE TECHNOLOGIES, INC.\nBy: /s/ Kevin T. Conroy\nName: Kevin T. Conroy\nTitle: Chief Executive Officer\nAccepted and agreed to as of\nthe date first written above:\nHOLOGIC, INC.\nBy:\nName: Mark J. Casey\nTitle: SVP & General Counsel\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between TWT and Company.\nVery truly yours,\nTHIRD WAVE TECHNOLOGIES, INC.\nBy:\nName: Kevin T. Conroy\nTitle: Chief Executive Officer\nAccepted and agreed to as of\nthe date first written above:\nHOLOGIC, INC.\nBy: Mark J. Casey\nName: Mark J. Casey\nTitle: SVP & General Counsel\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM	EX-99.(D)(6) 10 dex99d6.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nThird Wave Technologies\n502 South Rosa Road\nMadison, WI 53719\nFax: 608.663.7037\nWeb: www.twt.com\n. LOGO March 28, 2008\nSTRICTLY CONFIDENTIAL\nHologic, Inc.\n35 Crosby Drive\nBedford, MA 01730\nU.S.A.\nAttention: Rohan Hastie, Senior Director, Business Development\nLadies and Gentlemen:\nIn connection with the consideration of a possible business transaction (the “Transaction”) between Hologic, Inc. (“Company”) and Third\nWave Technologies, Inc. (“T'WT?”), TWT has and will provide Company from time to time with certain non-public information regarding TWT’s\noperations, assets, liabilities, business prospects, financial projections and financial condition, as well as information pertaining to other matters that\nmay arise in connection with Company’s evaluation of the Transaction. As a condition to, and in consideration of, such information being provided\nor made available to Company and its Representatives (as defined below), Company agrees to treat such information (whether prepared by TWT, its\nRepresentatives or otherwise and regardless of the form of communication) which is provided or made available hereunder to Company or to its\nRepresentatives by or on behalf of TWT or its Representatives in accordance with the provisions of this letter agreement, and to take or abstain from\ntaking certain other actions set forth herein. Each of TWT and Company is sometimes referred to herein individually as a “party” and collectively as\nthe “parties.”\nAs used herein, the term “Evaluation Material” shall mean any information (whether prepared by TWT or any of its Representatives or\notherwise and whether oral, written or otherwise) which is furnished after execution of this letter agreement to Company or any of its\nRepresentatives by or on behalf of TWT or any of its Representatives for the purpose of Company’s evaluation of the Transaction, including any\nreport, analysis, compilation, study, interpretation, forecast, record, reproduction, summary, note or other material prepared by Company or any of its\nRepresentatives, in whatever form maintained (whether documentary, computer storage or otherwise) to the extent containing, in whole or in part,\nany such information.\nNotwithstanding the foregoing, the term “Evaluation Material” does not include information which: (i) is or becomes generally available to the\npublic other than as a result of a disclosure by Company or its Representatives, or anyone to whom Company or its Representatives transmits such\ninformation; (ii) as evidenced by written records, was already in the possession of Company or its Representatives, provided that the source of such\ninformation, insofar as is known to Company or any of its Representatives, was not prohibited from transmitting such information to Company or its\nRepresentatives by a contractual, legal, fiduciary or other obligation to TWT; (iii) as evidenced by written records, was or becomes available to\nCompany or its Representatives on a non-confidential basis from a source, other than TWT or one of its Representatives, provided that the source of\nsuch information, insofar as is known to Company, was not prohibited from transmitting such information to Company or its Representatives by a\ncontractual, legal, fiduciary or other obligation to TWT; or (iv) is independently developed by Company or its Representatives without reliance on\nthe Evaluation Materials.\n502 SOUTH ROSA RD, MADISON, WI 53719-1256 Fax: 608.663.7037 WEB: WWW.TWT.COM\nAs used herein, “Representatives” shall mean a person’s officers, directors, subsidiaries and “Affiliates” or “Associates” (as each term is\ndefined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), employees, agents, advisors (including,\nwithout limitation, attorneys, accountants, consultants, prospective lenders and underwriters and financial advisors).\nThe term “person” as used herein shall be broadly interpreted to include, without limitation, the media and any corporation, limited liability\ncompany, company, unincorporated association, group, partnership, individual or other entity, but shall not include the United States Securities\nExchange Commission or other federal or state regulatory agencies. Each term “TWT” and “Company” includes, without limitation, its subsidiaries\nand Affiliates.\nIn consideration of being furnished with the Evaluation Material:\n1. Company hereby agrees that Company has not received from TWT by virtue of this letter agreement any rights or claims with respect to the\nEvaluation Material except as specified herein and that, subject to paragraph 3, Company and its Representatives will keep the Evaluation Material\nconfidential and will not, without the prior written consent of TWT, disclose the Evaluation Material, in whole or in part, or use it, directly or\nindirectly, for any purpose other than for the sole purpose of evaluating a possible Transaction. Moreover, Company agrees to disclose that it is\nevaluating a Transaction and to transmit Evaluation Material only to those Representatives of Company who are assisting Company with evaluating\nsuch Transaction and are informed by Company of the confidential nature of the Evaluation Material and agree with Company to be bound by the\nterms of this letter agreement to the extent stated to be applicable to it prior to the delivery of any Evaluation Material. Company will be responsible\nfor any actions by its Representatives which would be a breach of this letter agreement.\n2.(a) Company agrees that subject to paragraph 3, without the prior written consent of TWT, neither Company nor its Representatives will\ndisclose to any person (other than Company’s Representatives) any information regarding a possible Transaction or the Evaluation Material,\nincluding, without limitation (i) the fact that discussions or negotiations are taking place concerning a possible Transaction, including the status\nthereof, or the termination of discussions or negotiations with TWT, (ii) any of the terms, conditions or other facts with respect to any such possible\nTransaction or of TWT’s consideration of a possible Transaction, (iii) that this letter agreement exists or the terms hereof, or that Evaluation Material\nhas been made available to Company or (iv) any opinion or view with respect to the Evaluation Material; provided that Company or its\nRepresentatives may make such disclosures if Company believes on advice of its counsel that such disclosure must be made by Company or its\nRepresentatives to avoid committing a violation of law or of any rule or regulation of any securities association, stock exchange or national securities\nquotation system on which Company’s or its Representatives’ securities are listed or traded. In such event, Company shall use its reasonable best\nefforts to give advance written notice to TWT. Neither Company nor its Representatives shall consult any third party regarding the possibility for\ncollaboration with Company in connection with a possible Transaction without the prior written consent of TWT.\n(b) TWT agrees that, neither TWT nor its Representatives will disclose to any person (other than TWT’s Representatives) (i) the fact that\ndiscussions or negotiations are taking place concerning a possible Transaction with Company, including the status thereof, or the termination of\ndiscussions or negotiations with Company, (ii) any of the terms, conditions or other facts with respect to any such possible Transaction with the\nCompany or of Company’s consideration of a possible Transaction, or (iii) that this letter agreement exists or the terms hereof, or that Evaluation\nMaterial has been made available to Company; provided that TWT or its Representatives may make such disclosures as TWT determines in good\nfaith upon the advice of counsel may be required by law or any rule or regulation of any securities association, stock exchange or national securities\nquotation system on which TWT’s securities are listed or traded. In such event, TWT shall use its reasonable efforts to give advance written notice to\nCompany.\n3. Company agrees that if Company or any of its Representatives are requested or required (by oral questions, interrogatories, requests for\ninformation or documents, subpoena, civil investigative demand, regulatory request or similar process by any government or governmental agencies\nor authority or by law or regulation) to\n502 SOUTH ROSA RD, MADISON, WI 53719-1256 Fax: 608.663.7037 WEB: WWW.TWT.COM\ndisclose any Evaluation Material, or any of the facts or information referred to in paragraph 2, or any information relating to a possible Transaction,\nCompany will notify TWT timely in writing of the existence, terms and circumstances surrounding such request or requirement (to the extent\npermitted by law) so that TWT, in its sole discretion, may seek a protective order or other appropriate remedy and/or waive compliance with the\nprovisions of this letter agreement; provided that if, in the opinion of Company’s outside counsel, the disclosure to TWT of the factual circumstances\nsurrounding such request or requirement would require disclosure to TWT of confidential information of Company and that such disclosure would\nbe adverse to Company, then TWT will, at its option, either (i) enter into a reasonable confidentiality agreement with respect to such confidential\ninformation or (ii) agree that communication will be made by Company to TWT’s outside counsel on a confidential basis. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by TWT or any of its Representatives, Company or its Representatives are nonetheless\ncompelled to disclose Evaluation Material to any tribunal, then Company or its Representative may, without liability hereunder, disclose to such\ntribunal only that portion of the Evaluation Material which such counsel advises Company or its Representative is required to be disclosed, provided\nthat such party exercises its reasonable best efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by\ncooperating reasonably with TWT to obtain an appropriate protective order or other assurance that such tribunal will accord the Evaluation Material\nconfidential treatment.\n4. Company understands that, except and to the extent called for in a definitive agreement executed by Company and TWT, neither TWT nor\nany of its Representatives makes any representation or warranty hereunder, express or implied, as to the accuracy or completeness of the Evaluation\nMaterial. Company agrees that neither TWT nor its Representatives shall have any liability to Company or any of its Representatives hereunder\nrelating to or resulting from the use of the Evaluation Material, or any errors therein or omissions therefrom or Company’s or its Representative’s\nconsideration, or participation in a process relating to, a possible Transaction.\n5. Each party agrees that neither party hereto will be under any legal obligation of any kind whatsoever hereunder with respect to a\nTransaction, except for the matters specifically agreed to herein. If either party decides that it does not wish to proceed with a Transaction with the\nother party, then such party will promptly inform the other party of that decision. In that case, or at any time upon the request of TWT for any reason,\nCompany shall promptly redeliver to TWT or certify destruction of all Evaluation Material and any other material (including but not limited to\nwritten and computer files) to the extent containing any Evaluation Material (whether prepared by TWT, its Representatives or otherwise) furnished\nto Company or any of its Representatives and will not retain any copies, extracts or other reproductions in whole or in part of such material,\nprovided, Company and its Representatives shall be permitted to retain all or any portion of the Evaluation Material, in each case in accordance with\nthe confidentiality obligations specified in this letter agreement, (i) to the extent required by applicable law or regulatory authority and (ii) one copy\nof any analysis, interpretation or notes prepared by Company based on Evaluation Material may be retained by Company’s legal department.\nNotwithstanding the return or destruction of the Evaluation Material, Company will continue to be bound by its obligations of confidentiality and\nother obligations hereunder and TWT shall continue to be bound by its obligations hereunder until the termination of this letter agreement pursuant\nto Section 19.\n6. Company agrees that it and its Representatives will direct all inquiries and any requests for information concerning a possible Transaction to\nMerrill Lynch & Co. (“Merrill Lynch”) and XMS Capital Partners (“XMS”). Except as authorized by Merrill Lynch and XMS, Company shall not\ncontact any other members of management or employees of TWT or any customers, suppliers or other third parties (other than Company’s\nRepresentatives) that conduct business with TWT with respect to the Transaction. Notwithstanding anything to the contrary in this letter agreement,\nhowever, the parties and their Representatives also may continue to engage in the same course of communications as they have in the past in the\nordinary course of business.\n7. Company agrees that, for a period of twelve (12) months from the date of this letter agreement, it will not, without the prior written consent\nof TWT, directly or indirectly, solicit for employment or enter into any employment agreement (conditional or otherwise) with or employ any\nemployee of TWT (or anyone who was at any\n502 SOUTH ROSA RD, MADISON, WI 53719-1256 Fax: 608.663.7037 WEB: WWW.TWT.COM\ntime during the twelve (12) month period prior to the date of such solicitation or employment an employee of TWT), except that Company shall not\nbe precluded from hiring an employee who has been terminated by TWT prior to commencement of employment discussions between Company and\nsuch employee, provided such hiring is consistent with such employee’s contractual obligations to TWT. The placing of an advertisement of a\nposition by Company to members of the public generally, such as through newspapers, radio or television, or general mass mailings to the public,\nshall not itself constitute a breach of this paragraph 7.\n8. During the period of twelve (12) months from the date of this letter agreement (the “Standstill Period”), the Company and its\nRepresentatives will not, directly or indirectly, in any manner, without the prior written authorization of the Board of Directors of TWT (i) acquire or\nagree to acquire or make any offer or proposal to acquire any common stock of TWT; (ii) assist, advise, encourage, agree with, discuss or negotiate\nor otherwise act in concert with any other persons to acquire or agree to acquire any material assets of TWT; (iii) solicit, or in any way participate in\nany solicitation of, proxies from holders of the common stock of TWT or form, join or in any way participate in a proxy contest with respect to the\ncommon stock of TWT; (iv) make any proposal for or offer of an extraordinary transaction (including, without limitation, by way of a take-over bid,\ntender or exchange offer, amalgamation, merger or other business combination) involving TWT; (v) engage in any discussions or enter into any\nagreements, commitments or understandings with any person related to or any acquisition of securities or material assets of TWT, (vi) otherwise seek\nto influence or control the Board of Directors, management or policies of TWT or any of its affiliates, (vii) seek any modification to or waiver of the\nCompany’s obligations under this Agreement; (viii) make any public announcement with respect to the foregoing, except as may be required by\napplicable law or regulatory authorities; (ix) take any initiative with respect to TWT that reasonably would be expected to require TWT to make a\npublic announcement; or (x) assist, advise or encourage any person in doing any of the foregoing (including by providing or arranging any\nfinancing).\n9. Each party acknowledges that it and its Affiliates and its and their Representatives may become aware of “material nonpublic\ninformation” (as defined under applicable securities laws) regarding the other party. Both parties understand, and will communicate to all Affiliates\nand Representatives and other persons having knowledge of any material nonpublic information, that it and they are required under applicable\nsecurities laws to refrain from trading in securities of the other party while in possession of this information.\n10. Company agrees that an inadvertent production to it by TWT or any of its Representatives of Evaluation Material protected by the attorney\nclient, attorney work product or other applicable privilege (“Privilege”) of TWT or any of its Representatives, is not intended to constitute a waiver\nof any such Privilege by TWT or any of its Representatives and Company agrees that, upon request, it will immediately return such inadvertently\nproduced Evaluation Material.\n11. This letter agreement is the complete and exclusive statement regarding the subject matter hereof and supersedes all prior and\ncontemporaneous agreements, understandings and communications, oral or written, between the parties regarding such subject matter.\n12. The provisions and covenants set forth in this letter agreement may be amended, modified or waived only by an instrument in writing\nexecuted by TWT and Company, specifying the provision or covenant to be waived or amended. No failure or delay by TWT or Company in\nexercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other\nfurther exercise thereof or the exercise of any other right, power, or privilege hereunder.\n13. Any provision of this letter agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent\nnot held invalid or unenforceable.\n14. Notwithstanding any provision to the contrary contained elsewhere herein, the confidentiality obligations contained in this letter agreement\nor in any other agreement between the parties hereto, as they relate to\n502 SOUTH ROSA RD, MADISON, WI 53719-1256 Fax: 608.663.7037 WEB: WWW.TWT.COM\nany negotiated transaction, shall not apply to the federal tax structure or federal tax treatment of the transaction, and Company (and any of its\nRepresentative) may disclose to any and all persons, without limitation of any kind, the federal tax structure and federal tax treatment of any\ntransaction; provided, that such disclosure may not be made until the earliest of (x) the date of the public announcement of discussions relating to the\ntransaction, (y) the date of the public announcement of the transaction, or (z) the date of the execution of a definitive written agreement to enter into\nthe transaction. The preceding sentence is intended to cause the transaction to be treated as not having been offered under conditions of\nconfidentiality for purposes of Section 1.6011-4(b)(3) (or any successor provision) of the Treasury Regulations promulgated under Section 6011 of\nthe Internal Revenue Code of 1986, as amended, and shall be construed in a manner consistent with such purpose. Subject to the proviso with respect\nto disclosure in the first sentence of this paragraph, TWT acknowledges that it has no proprietary or exclusive rights to the federal tax structure of the\ntransaction or any federal tax matter or federal tax idea related to any negotiated transaction.\n15. Each party agrees that money damages would not be a sufficient remedy for any breach of this letter agreement by it; and that, in addition\nto all other remedies, each party shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach,\nand each party further agrees to waive and to use its best commercially reasonable efforts to cause its Affiliates and their respective Representatives\nto waive any requirement for the securing or posting of any bond in connection with such remedy. In addition, each party agrees that if the other\nparty is the prevailing party in any such litigation, the other party shall be entitled to recover from it all fees, costs and expenses of enforcing any\nright of the other party under or with respect to this letter agreement, including without limitation, such reasonable fees and expenses of attorneys,\nwhich shall include, without limitation, all fees, costs and expenses of appeals.\n16. This letter agreement shall be governed by, and construed (both as to validity and performance) in accordance with, the laws of the State of\nDelaware, without regard to the principles of the conflicts of laws thereof. As the letter agreement is the product of negotiations between the parties,\nneither party shall be deemed the drafter for purposes of construing any ambiguity.\n17. This letter agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken\ntogether shall constitute one and the same agreement, it being understood that all of the parties need not sign the same counterpart. This letter\nagreement may be executed and delivered by facsimile or email transmission of a file in “.pdf” or similar format and upon such delivery, each\nsignature shall be deemed to have the same effect as if the original signature had been delivered to the other party.\n18. Each party’s rights (but not its obligations) under this letter agreement may be assigned by such party to any of its Affiliates or to any party\nthat enters into a transaction substantially similar to the Transaction with such other party. This letter agreement shall inure to the benefit of the\nparties hereto and their respective successors and assigns.\n19. Except as otherwise provided herein, this letter agreement shall terminate twenty-four (24) months after the later of (a) the date of this\nletter agreement or (b) the date upon which Company completes returning the materials required to be returned to TWT pursuant to paragraph 5\nabove, if applicable.\n[SIGNATURE PAGE FOLLOWS]\n502 SOUTH ROSA RD, MADISON, WI 53719-1256 Fax: 608.663.7037 WEB: WWW.TWT.COM\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between TWT and Company.\nVery truly yours,\nTHIRD WAVE TECHNOLOGIES, INC.\nBy: /s/Kevin T. Conroy\nName: Kevin T. Conroy\nTitle: Chief Executive Officer\nAccepted and agreed to as of\nthe date first written above:\nHOLOGIC, INC.\nBy:\nName: Mark J. Casey\nTitle: SVP & General Counsel\n502 SOUTH ROSA RD, MADISON, WI 53719-1256 Fax: 608.663.7037 WEB: WWW.TWT.COM\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between TWT and Company.\nVery truly yours,\nTHIRD WAVE TECHNOLOGIES, INC.\nBy:\nName: Kevin T. Conroy\nTitle: Chief Executive Officer\nAccepted and agreed to as of\nthe date first written above:\nHOLOGIC, INC.\nBy:  Mark J. Casey\nName: Mark J. Casey\nTitle: SVP & General Counsel\n502 SOUTH ROSA RD, MADISON, WI 53719-1256 Fax: 608.663.7037 WEB: WWW.TWT.COM	EX-99.(D)(6) 10 dex99d6.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nThird Wave Technologies\n502 South Rosa Road\nMadison, WI 53719\nFax: 608.663.7037\nWeb: www.twt.com\nLOGO\nMarch 28, 2008\nSTRICTLY CONFIDENTIAL\nHologic, Inc.\n35 Crosby Drive\nBedford, MA 01730\nU.S.A.\nAttention: Rohan Hastie, Senior Director, Business Development\nLadies and Gentlemen:\nIn connection with the consideration of a possible business transaction (the "Transaction") between Hologic, Inc. ("Company") and Third\nWave Technologies, Inc. ("TWT"), TWT has and will provide Company from time to time with certain non-public information regarding TWT's\noperations, assets, liabilities, business prospects, financial projections and financial condition, as well as information pertaining to other matters that\nmay arise in connection with Company's evaluation of the Transaction. As a condition to, and in consideration of, such information being provided\nor made available to Company and its Representatives (as defined below), Company agrees to treat such information (whether prepared by TWT, its\nRepresentatives or otherwise and regardless of the form of communication) which is provided or made available hereunder to Company or to its\nRepresentatives by or on behalf of TWT or its Representatives in accordance with the provisions of this letter agreement, and to take or abstain from\ntaking certain other actions set forth herein. Each of TWT and Company is sometimes referred to herein individually as a "party" and collectively as\nthe "parties."\nAs used herein, the term "Evaluation Material" shall mean any information (whether prepared by TWT or any of its Representatives or\notherwise and whether oral, written or otherwise) which is furnished after execution of this letter agreement to Company or any of its\nRepresentatives by or on behalf of TWT or any of its Representatives for the purpose of Company's evaluation of the Transaction, including any\nreport, analysis, compilation, study, interpretation, forecast, record, reproduction, summary, note or other material prepared by Company or any\nof\nits\nRepresentatives, in whatever form maintained (whether documentary, computer storage or otherwise) to the extent containing, in whole or in part,\nany such information.\nNotwithstanding the foregoing, the term "Evaluation Material" does not include information which: (i) is or becomes generally available to the\npublic other than as a result of a disclosure by Company or its Representatives, or anyone to whom Company or its Representatives transmits such\ninformation; (ii) as evidenced by written records, was already in the possession of Company or its Representatives, provided that the source of\nsuch\ninformation, insofar as is known to Company or any of its Representatives, was not prohibited from transmitting such information to Company or its\nRepresentatives by a contractual, legal, fiduciary or other obligation to TWT; (iii) as evidenced by written records, was or becomes available to\nCompany or its Representatives on a non-confidential basis from a source, other than TWT or one of its Representatives, provided that the source of\nsuch information, insofar as is known to Company, was not prohibited from transmitting such information to Company or its Representatives by a\ncontractual, legal, fiduciary or other obligation to TWT; or (iv) is independently developed by Company or its Representatives without reliance\non\nthe Evaluation Materials.\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\nAs\nused herein, "Representatives" shall mean a person's officers, directors, subsidiaries and "Affiliates" or "Associates" (as each term\nis\ndefined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), employees, agents, advisors (including,\nwithout limitation, attorneys, accountants, consultants, prospective lenders and underwriters and financial advisors).\nThe term "person" as used herein shall be broadly interpreted to include, without limitation, the media and any corporation, limited liability\ncompany, company, unincorporated association, group, partnership, individual or other entity, but shall not include the United States Securities\nExchange Commission or other federal or state regulatory agencies. Each term "TWT" and "Company" includes, without limitation, its subsidiaries\nand Affiliates.\nIn consideration of being furnished with the Evaluation Material:\n1. Company hereby agrees that Company has not received from TWT by virtue of this letter agreement any rights or claims with respect to the\nEvaluation Material except as specified herein and that, subject to paragraph 3, Company and its Representatives will keep the Evaluation Material\nconfidential and will not, without the prior written consent of TWT, disclose the Evaluation Material, in whole or in part, or use it, directly or\nindirectly, for any purpose other than for the sole purpose of evaluating a possible Transaction. Moreover, Company agrees to disclose that it is\nevaluating a Transaction and to transmit Evaluation Material only to those Representatives of Company who are assisting Company with evaluating\nsuch Transaction and are informed by Company of the confidential nature of the Evaluation Material and agree with Company to be bound by the\nterms of this letter agreement to the extent stated to be applicable to it prior to the delivery of any Evaluation Material. Company will be responsible\nfor any actions by its Representatives which would be a breach of this letter agreement.\n2.(a) Company agrees that subject to paragraph 3, without the prior written consent of TWT, neither Company nor its Representatives will\ndisclose to any person (other than Company's Representatives) any information regarding a possible Transaction or the Evaluation Material,\nincluding, without limitation (i) the fact that discussions or negotiations are taking place concerning a possible Transaction, including the status\nthereof, or the termination of discussions or negotiations with TWT, (ii) any of the terms, conditions or other facts with respect to any such possible\nTransaction or of TWT's consideration of a possible Transaction, (iii) that this letter agreement exists or the terms hereof, or that Evaluation Material\nhas been made available to Company or (iv) any opinion or view with respect to the Evaluation Material; provided that Company or its\nRepresentatives may make such disclosures if Company believes on advice of its counsel that such disclosure must be made by Company or its\nRepresentatives to avoid committing a violation of law or of any rule or regulation of any securities association, stock exchange or national securities\nquotation system on which Company's or its Representatives' securities are listed or traded. In such event, Company shall use its reasonable best\nefforts to give advance written notice to TWT. Neither Company nor its Representatives shall consult any third party regarding the possibility for\ncollaboration with Company in connection with a possible Transaction without the prior written consent of TWT.\n(b) TWT agrees that, neither TWT nor its Representatives will disclose to any person (other than TWT's Representatives) (i) the fact that\ndiscussions or negotiations are taking place concerning a possible Transaction with Company, including the status thereof, or the termination of\ndiscussions or negotiations with Company, (ii) any of the terms, conditions or other facts with respect to any such possible Transaction with the\nCompany or of Company's consideration of a possible Transaction, or (iii) that this letter agreement exists or the terms hereof, or that Evaluation\nMaterial has been made available to Company; provided that TWT or its Representatives may make such disclosures as TWT determines in good\nfaith upon the advice of counsel may be required by law or any rule or regulation of any securities association, stock exchange or national securities\nquotation system on which TWT's securities are listed or traded. In such event, TWT shall use its reasonable efforts to give advance written notice to\nCompany.\n3. Company agrees that if Company or any of its Representatives are requested or required (by oral questions, interrogatories, requests for\ninformation or documents, subpoena, civil investigative demand, regulatory request or similar process by any government or governmental agencies\nor authority or by law or regulation) to\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\ndisclose any Evaluation Material, or any of the facts or information referred to in paragraph 2, or any information relating to a possible Transaction,\nCompany will notify TWT timely in writing of the existence, terms and circumstances surrounding such request or requirement (to the extent\npermitted by law) so that TWT, in its sole discretion, may seek a protective order or other appropriate remedy and/or waive compliance with the\nprovisions of this letter agreement; provided that if, in the opinion of Company's outside counsel, the disclosure to TWT of the factual circumstances\nsurrounding such request or requirement would require disclosure to TWT of confidential information of Company and that such disclosure would\nbe adverse to Company, then TWT will, at its option, either (i) enter into a reasonable confidentiality agreement with respect to such confidential\ninformation or (ii) agree that communication will be made by Company to TWT's outside counsel on a confidential basis. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by TWT or any of its Representatives, Company or its Representatives are nonetheless\ncompelled to disclose Evaluation Material to any tribunal, then Company or its Representative may, without liability hereunder disclose to such\ntribunal only that portion of the Evaluation Material which such counsel advises Company or its Representative is required to be disclosed, provided\nthat such party exercises its reasonable best efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by\ncooperating reasonably with TWT to obtain an appropriate protective order or other assurance that such tribunal will accord the Evaluation Material\nconfidential treatment.\n4. Company understands that, except and to the extent called for in a definitive agreement executed by Company and TWT, neither TWT nor\nany of its Representatives makes any representation or warranty hereunder, express or implied, as to the accuracy or completeness of the Evaluation\nMaterial. Company agrees that neither TWT nor its Representatives shall have any liability to Company or any of its Representatives hereunder\nrelating to or resulting from the use of the Evaluation Material, or any errors therein or omissions therefrom or Company's or its Representative's\nconsideration, or participation in a process relating to, a possible Transaction.\n5. Each party agrees that neither party hereto will be under any legal obligation of any kind whatsoever hereunder with respect to a\nTransaction, except for the matters specifically agreed to herein. If either party decides that it does not wish to proceed with a Transaction with the\nother party, then such party will promptly inform the other party of that decision. In that case, or at any time upon the request of TWT for any reason,\nCompany shall promptly redeliver to TWT or certify destruction of all Evaluation Material and any other material (including but not limited to\nwritten and computer files) to the extent containing any Evaluation Material (whether prepared by TWT, its Representatives or otherwise) furnished\nto Company or any of its Representatives and will not retain any copies, extracts or other reproductions in whole or in part of such material,\nprovided, Company and its Representatives shall be permitted to retain all or any portion of the Evaluation Material, in each case in accordance with\nthe confidentiality obligations specified in this letter agreement, (i) to the extent required by applicable law or regulatory authority and (ii) one copy\nof any analysis, interpretation or notes prepared by Company based on Evaluation Material may be retained by Company's legal department.\nNotwithstanding the return or destruction of the Evaluation Material, Company will continue to be bound by its obligations of confidentiality and\nother obligations hereunder and TWT shall continue to be bound by its obligations hereunder until the termination of this letter agreement pursuant\nto Section 19.\n6. Company agrees that it and its Representatives will direct all inquiries and any requests for information concerning a possible Transaction to\nMerrill Lynch & Co. ("Merrill Lynch") and XMS Capital Partners ("XMS"). Except as authorized by Merrill Lynch and XMS, Company shall not\ncontact any other members of management or employees of TWT or any customers, suppliers or other third parties (other than Company's\nRepresentatives) that conduct business with TWT with respect to the Transaction. Notwithstanding anything to the contrary in this letter agreement,\nhowever, the parties and their Representatives also may continue to engage in the same course of communications as they have in the past in the\nordinary course of business.\n7. Company agrees that, for a period of twelve (12) months from the date of this letter agreement, it will not, without the prior written consent\nof TWT, directly or indirectly, solicit for employment or enter into any employment agreement (conditional or otherwise) with or employ any\nemployee of TWT (or anyone who was at any\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\ntime during the twelve (12) month period prior to the date of such solicitation or employment an employee of TWT), except that Company shall not\nbe precluded from hiring an employee who has been terminated by TWT prior to commencement of employment discussions between Company and\nsuch employee, provided such hiring is consistent with such employee's contractual obligations to TWT. The placing of an advertisement of\na\nposition by Company to members of the public generally, such as through newspapers, radio or television, or general mass mailings to the public,\nshall not itself constitute a breach of this paragraph 7.\n8. During the period of twelve (12) months from the date of this letter agreement (the "Standstill Period"), the Company and its\nRepresentatives will not, directly or indirectly, in any manner, without the prior written authorization of the Board of Directors of TWT (i) acquire\nor\nagree to acquire or make any offer or proposal to acquire any common stock of TWT; (ii) assist, advise, encourage, agree with, discuss or negotiate\nor otherwise act in concert with any other persons to acquire or agree to acquire any material assets of TWT; (iii) solicit, or in any way participate in\nany solicitation of, proxies from holders of the common stock of TWT or form, join or in any way participate in a proxy contest with respect to the\ncommon stock of TWT; (iv) make any proposal for or offer of an extraordinary transaction (including, without limitation, by way of a take-over bid,\ntender or exchange offer, amalgamation, merger or other business combination) involving TWT; (v) engage in any discussions or enter into any\nagreements, commitments or understandings with any person related to or any acquisition of securities or material assets of TWT, (vi) otherwise seek\nto influence or control the Board of Directors, management or policies of TWT or any of its affiliates, (vii) seek any modification to or waiver of the\nCompany's obligations under this Agreement; (viii) make any public announcement with respect to the foregoing, except as may be required by\napplicable law or regulatory authorities; (ix) take any initiative with respect to TWT that reasonably would be expected to require TWT to make\na\npublic announcement; or (x) assist, advise or encourage any person in doing any of the foregoing (including by providing or arranging any\nfinancing).\n9. Each party acknowledges that it and its Affiliates and its and their Representatives may become aware of "material nonpublic\ninformation" (as defined under applicable securities laws) regarding the other party. Both parties understand, and will communicate to all Affiliates\nand Representatives and other persons having knowledge of any material nonpublic information, that it and they are required under applicable\nsecurities laws to refrain from trading in securities of the other party while in possession of this information.\n10. Company agrees that an inadvertent production to it by TWT or any of its Representatives of Evaluation Material protected by the attorney\nclient, attorney work product or other applicable privilege ("Privilege") of TWT or any of its Representatives, is not intended to constitute a waiver\nof any such Privilege by TWT or any of its Representatives and Company agrees that, upon request, it will immediately return such inadvertently\nproduced Evaluation Material.\n11. This letter agreement is the complete and exclusive statement regarding the subject matter hereof and supersedes all prior and\ncontemporaneous agreements, understandings and communications, oral or written, between the parties regarding such subject matter.\n12. The provisions and covenants set forth in this letter agreement may be amended, modified or waived only by an instrument in writing\nexecuted by TWT and Company, specifying the provision or covenant to be waived or amended. No failure or delay by TWT or Company in\nexercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other\nfurther exercise thereof or the exercise of any other right, power, or privilege hereunder.\n13. Any provision of this letter agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent\nnot held invalid or unenforceable.\n14. Notwithstanding any provision to the contrary contained elsewhere herein, the confidentiality obligations contained in this letter agreement\nor in any other agreement between the parties hereto, as they relate to\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\nany negotiated transaction, shall not apply to the federal tax structure or federal tax treatment of the transaction, and Company (and any of its\nRepresentative) may disclose to any and all persons, without limitation of any kind, the federal tax structure and federal tax treatment of any\ntransaction; provided, that such disclosure may not be made until the earliest of (x) the date of the public announcement of discussions relating to the\ntransaction, (y) the date of the public announcement of the transaction, or (z) the date of the execution of a definitive written agreement to enter into\nthe transaction. The preceding sentence is intended to cause the transaction to be treated as not having been offered under conditions of\nconfidentiality for purposes of Section 1.6011-4(b)(3) (or any successor provision) of the Treasury Regulations promulgated under Section 6011 of\nthe Internal Revenue Code of 1986, as amended, and shall be construed in a manner consistent with such purpose. Subject to the proviso with respect\nto disclosure in the first sentence of this paragraph, TWT acknowledges that it has no proprietary or exclusive rights to the federal tax structure of the\ntransaction or any federal tax matter or federal tax idea related to any negotiated transaction.\n15. Each party agrees that money damages would not be a sufficient remedy for any breach of this letter agreement by it; and that, in addition\nto all other remedies, each party shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach,\nand each party further agrees to waive and to use its best commercially reasonable efforts to cause its Affiliates and their respective Representatives\nto waive any requirement for the securing or posting of any bond in connection with such remedy. In addition, each party agrees that if the other\nparty is the prevailing party in any such litigation, the other party shall be entitled to recover from it all fees, costs and expenses of enforcing any\nright of the other party under or with respect to this letter agreement, including without limitation, such reasonable fees and expenses of attorneys,\nwhich shall include, without limitation, all fees, costs and expenses of appeals.\n16. This letter agreement shall be governed by, and construed (both as to validity and performance) in accordance with, the laws of the State of\nDelaware, without regard to the principles of the conflicts of laws thereof. As the letter agreement is the product of negotiations between the parties,\nneither party shall be deemed the drafter for purposes of construing any ambiguity.\n17. This letter agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken\ntogether shall constitute one and the same agreement, it being understood that all of the parties need not sign the same counterpart. This letter\nagreement may be executed and delivered by facsimile or email transmission of a file in ".pdf" or similar format and upon such delivery, each\nsignature shall be deemed to have the same effect as if the original signature had been delivered to the other party.\n18. Each party's rights (but not its obligations) under this letter agreement may be assigned by such party to any of its Affiliates or to any party\nthat enters into a transaction substantially similar to the Transaction with such other party. This letter agreement shall inure to the benefit of the\nparties hereto and their respective successors and assigns.\n19. Except as otherwise provided herein, this letter agreement shall terminate twenty-four (24) months after the later of (a) the date of this\nletter agreement or (b) the date upon which Company completes returning the materials required to be returned to TWT pursuant to paragraph 5\nabove, if applicable.\n[SIGNATURE PAGE FOLLOWS]\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between TWT and Company.\nVery truly yours,\nTHIRD WAVE TECHNOLOGIES, INC.\nBy: /s/ Kevin T. Conroy\nName: Kevin T. Conroy\nTitle: Chief Executive Officer\nAccepted and agreed to as of\nthe date first written above:\nHOLOGIC, INC.\nBy:\nName: Mark J. Casey\nTitle: SVP & General Counsel\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between TWT and Company.\nVery truly yours,\nTHIRD WAVE TECHNOLOGIES, INC.\nBy:\nName: Kevin T. Conroy\nTitle: Chief Executive Officer\nAccepted and agreed to as of\nthe date first written above:\nHOLOGIC, INC.\nBy: Mark J. Casey\nName: Mark J. Casey\nTitle: SVP & General Counsel\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM	EX-99.(D)(6) 10 dex99d6.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nLOGO\nThird Wave Technologies\n502 South Rosa Road\nMadison, WI 53719\nFax: 608.663.7037\nWeb: www.twt.com\nMarch 28, 2008\nSTRICTLY CONFIDENTIAL\nHologic, Inc.\n35 Crosby Drive\nBedford, MA 01730\nU.S .A.\nAttention: Rohan Hastie, Senior Director, Business Development\nLadies and Gentlemen:\nIn connection with the consideration of a possible business transaction (the “Transaction”) between Hologic, Inc. (“Company”) and Third\nWave Technologies, Inc. (“TWT”), TWT has and will provide Company from time to time with certain non-public information regarding TWT’s\noperations, assets, liabilities, business prospects, financial projections and financial condition, as well as information pertaining to other matters that\nmay arise in connection with Company’s evaluation of the Transaction. As a condition to, and in consideration of, such information being provided\nor made available to Company and its Representatives (as defined below), Company agrees to treat such information (whether prepared by TWT, its\nRepresentatives or otherwise and regardless of the form of communication) which is provided or made available hereunder to Company or to its\nRepresentatives by or on behalf of TWT or its Representatives in accordance with the provisions of this letter agreement, and to take or abstain from\ntaking certain other actions set forth herein. Each of TWT and Company is sometimes referred to herein individually as a “party” and collectively as\nthe “parties.”\nAs used herein, the term “Evaluation Material” shall mean any information (whether prepared by TWT or any of its Representatives or\notherwise and whether oral, written or otherwise) which is furnished after execution of this letter agreement to Company or any of its\nRepresentatives by or on behalf of TWT or any of its Representatives for the purpose of Company’s evaluation of the Transaction, including any\nreport, analysis, compilation, study, interpretation, forecast, record, reproduction, summary, note or other material prepared by Company or any of its\nRepresentatives, in whatever form maintained (whether documentary, computer storage or otherwise) to the extent containing, in whole or in part,\nany such information.\nNotwithstanding the foregoing, the term “Evaluation Material” does not include information which: (i) is or becomes generally available to the\npublic other than as a result of a disclosure by Company or its Representatives, or anyone to whom Company or its Representatives transmits such\ninformation; (ii) as evidenced by written records, was already in the possession of Company or its Representatives, provided that the source of such\ninformation, insofar as is known to Company or any of its Representatives, was not prohibited from transmitting such information to Company or its\nRepresentatives by a contractual, legal, fiduciary or other obligation to TWT; (iii) as evidenced by written records, was or becomes available to\nCompany or its Representatives on a non-confidential basis from a source, other than TWT or one of its Representatives, provided that the source of\nsuch information, insofar as is known to Company, was not prohibited from transmitting such information to Company or its Representatives by a\ncontractual, legal, fiduciary or other obligation to TWT; or (iv) is independently developed by Company or its Representatives without reliance on\nthe Evaluation Materials.\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\nAs used herein, “Representatives” shall mean a person’s officers, directors, subsidiaries and “Affiliates” or “Associates” (as each term is\ndefined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), employees, agents, advisors (including,\nwithout limitation, attorneys, accountants, consultants, prospective lenders and underwriters and financial advisors).\nThe term “person” as used herein shall be broadly interpreted to include, without limitation, the media and any corporation, limited liability\ncompany, company, unincorporated association, group, partnership, individual or other entity, but shall not include the United States Securities\nExchange Commission or other federal or state regulatory agencies. Each term “TWT” and “Company” includes, without limitation, its subsidiaries\nand Affiliates.\nIn consideration of being furnished with the Evaluation Material:\n1. Company hereby agrees that Company has not received from TWT by virtue of this letter agreement any rights or claims with respect to the\nEvaluation Material except as specified herein and that, subject to paragraph 3, Company and its Representatives will keep the Evaluation Material\nconfidential and will not, without the prior written consent of TWT, disclose the Evaluation Material, in whole or in part, or use it, directly or\nindirectly, for any purpose other than for the sole purpose of evaluating a possible Transaction. Moreover, Company agrees to disclose that it is\nevaluating a Transaction and to transmit Evaluation Material only to those Representatives of Company who are assisting Company with evaluating\nsuch Transaction and are informed by Company of the confidential nature of the Evaluation Material and agree with Company to be bound by the\nterms of this letter agreement to the extent stated to be applicable to it prior to the delivery of any Evaluation Material. Company will be responsible\nfor any actions by its Representatives which would be a breach of this letter agreement.\n2.(a) Company agrees that subject to paragraph 3, without the prior written consent of TWT, neither Company nor its Representatives will\ndisclose to any person (other than Company’s Representatives) any information regarding a possible Transaction or the Evaluation Material,\nincluding, without limitation (i) the fact that discussions or negotiations are taking place concerning a possible Transaction, including the status\nthereof, or the termination of discussions or negotiations with TWT, (ii) any of the terms, conditions or other facts with respect to any such possible\nTransaction or of TWT’s consideration of a possible Transaction, (iii) that this letter agreement exists or the terms hereof, or that Evaluation Material\nhas been made available to Company or (iv) any opinion or view with respect to the Evaluation Material; provided that Company or its\nRepresentatives may make such disclosures if Company believes on advice of its counsel that such disclosure must be made by Company or its\nRepresentatives to avoid committing a violation of law or of any rule or regulation of any securities association, stock exchange or national securities\nquotation system on which Company’s or its Representatives’ securities are listed or traded. In such event, Company shall use its reasonable best\nefforts to give advance written notice to TWT. Neither Company nor its Representatives shall consult any third party regarding the possibility for\ncollaboration with Company in connection with a possible Transaction without the prior written consent of TWT.\n(b) TWT agrees that, neither TWT nor its Representatives will disclose to any person (other than TWT’s Representatives) (i) the fact that\ndiscussions or negotiations are taking place concerning a possible Transaction with Company, including the status thereof, or the termination of\ndiscussions or negotiations with Company, (ii) any of the terms, conditions or other facts with respect to any such possible Transaction with the\nCompany or of Company’s consideration of a possible Transaction, or (iii) that this letter agreement exists or the terms hereof, or that Evaluation\nMaterial has been made available to Company; provided that TWT or its Representatives may make such disclosures as TWT determines in good\nfaith upon the advice of counsel may be required by law or any rule or regulation of any securities association, stock exchange or national securities\nquotation system on which TWT’s securities are listed or traded. In such event, TWT shall use its reasonable efforts to give advance written notice to\nCompany.\n3. Company agrees that if Company or any of its Representatives are requested or required (by oral questions, interrogatories, requests for\ninformation or documents, subpoena, civil investigative demand, regulatory request or similar process by any government or governmental agencies\nor authority or by law or regulation) to\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\ndisclose any Evaluation Material, or any of the facts or information referred to in paragraph 2, or any information relating to a possible Transaction,\nCompany will notify TWT timely in writing of the existence, terms and circumstances surrounding such request or requirement (to the extent\npermitted by law) so that TWT, in its sole discretion, may seek a protective order or other appropriate remedy and/or waive compliance with the\nprovisions of this letter agreement; provided that if, in the opinion of Company’s outside counsel, the disclosure to TWT of the factual circumstances\nsurrounding such request or requirement would require disclosure to TWT of confidential information of Company and that such disclosure would\nbe adverse to Company, then TWT will, at its option, either (i) enter into a reasonable confidentiality agreement with respect to such confidential\ninformation or (ii) agree that communication will be made by Company to TWT’s outside counsel on a confidential basis. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by TWT or any of its Representatives, Company or its Representatives are nonetheless\ncompelled to disclose Evaluation Material to any tribunal, then Company or its Representative may, without liability hereunder, disclose to such\ntribunal only that portion of the Evaluation Material which such counsel advises Company or its Representative is required to be disclosed, provided\nthat such party exercises its reasonable best efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by\ncooperating reasonably with TWT to obtain an appropriate protective order or other assurance that such tribunal will accord the Evaluation Material\nconfidential treatment.\n4. Company understands that, except and to the extent called for in a definitive agreement executed by Company and TWT, neither TWT nor\nany of its Representatives makes any representation or warranty hereunder, express or implied, as to the accuracy or completeness of the Evaluation\nMaterial. Company agrees that neither TWT nor its Representatives shall have any liability to Company or any of its Representatives hereunder\nrelating to or resulting from the use of the Evaluation Material, or any errors therein or omissions therefrom or Company’s or its Representative’s\nconsideration, or participation in a process relating to, a possible Transaction.\n5. Each party agrees that neither party hereto will be under any legal obligation of any kind whatsoever hereunder with respect to a\nTransaction, except for the matters specifically agreed to herein. If either party decides that it does not wish to proceed with a Transaction with the\nother party, then such party will promptly inform the other party of that decision. In that case, or at any time upon the request of TWT for any reason,\nCompany shall promptly redeliver to TWT or certify destruction of all Evaluation Material and any other material (including but not limited to\nwritten and computer files) to the extent containing any Evaluation Material (whether prepared by TWT, its Representatives or otherwise) furnished\nto Company or any of its Representatives and will not retain any copies, extracts or other reproductions in whole or in part of such material,\nprovided, Company and its Representatives shall be permitted to retain all or any portion of the Evaluation Material, in each case in accordance with\nthe confidentiality obligations specified in this letter agreement, (i) to the extent required by applicable law or regulatory authority and (ii) one copy\nof any analysis, interpretation or notes prepared by Company based on Evaluation Material may be retained by Company’s legal department.\nNotwithstanding the return or destruction of the Evaluation Material, Company will continue to be bound by its obligations of confidentiality and\nother obligations hereunder and TWT shall continue to be bound by its obligations hereunder until the termination of this letter agreement pursuant\nto Section 19.\n6. Company agrees that it and its Representatives will direct all inquiries and any requests for information concerning a possible Transaction to\nMerrill Lynch & Co. (“Merrill Lynch”) and XMS Capital Partners (“XMS”). Except as authorized by Merrill Lynch and XMS, Company shall not\ncontact any other members of management or employees of TWT or any customers, suppliers or other third parties (other than Company’s\nRepresentatives) that conduct business with TWT with respect to the Transaction. Notwithstanding anything to the contrary in this letter agreement,\nhowever, the parties and their Representatives also may continue to engage in the same course of communications as they have in the past in the\nordinary course of business.\n7. Company agrees that, for a period of twelve (12) months from the date of this letter agreement, it will not, without the prior written consent\nof TWT, directly or indirectly, solicit for employment or enter into any employment agreement (conditional or otherwise) with or employ any\nemployee of TWT (or anyone who was at any\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\ntime during the twelve (12) month period prior to the date of such solicitation or employment an employee of TWT), except that Company shall not\nbe precluded from hiring an employee who has been terminated by TWT prior to commencement of employment discussions between Company and\nsuch employee, provided such hiring is consistent with such employee’s contractual obligations to TWT. The placing of an advertisement of a\nposition by Company to members of the public generally, such as through newspapers, radio or television, or general mass mailings to the public,\nshall not itself constitute a breach of this paragraph 7.\n8. During the period of twelve (12) months from the date of this letter agreement (the “Standstill Period”), the Company and its\nRepresentatives will not, directly or indirectly, in any manner, without the prior written authorization of the Board of Directors of TWT (i) acquire or\nagree to acquire or make any offer or proposal to acquire any common stock of TWT; (ii) assist, advise, encourage, agree with, discuss or negotiate\nor otherwise act in concert with any other persons to acquire or agree to acquire any material assets of TWT; (iii) solicit, or in any way participate in\nany solicitation of, proxies from holders of the common stock of TWT or form, join or in any way participate in a proxy contest with respect to the\ncommon stock of TWT; (iv) make any proposal for or offer of an extraordinary transaction (including, without limitation, by way of a take-over bid,\ntender or exchange offer, amalgamation, merger or other business combination) involving TWT; (v) engage in any discussions or enter into any\nagreements, commitments or understandings with any person related to or any acquisition of securities or material assets of TWT, (vi) otherwise seek\nto influence or control the Board of Directors, management or policies of TWT or any of its affiliates, (vii) seek any modification to or waiver of the\nCompany’s obligations under this Agreement; (viii) make any public announcement with respect to the foregoing, except as may be required by\napplicable law or regulatory authorities; (ix) take any initiative with respect to TWT that reasonably would be expected to require TWT to make a\npublic announcement; or (x) assist, advise or encourage any person in doing any of the foregoing (including by providing or arranging any\nfinancing).\n9. Each party acknowledges that it and its Affiliates and its and their Representatives may become aware of “material nonpublic\ninformation” (as defined under applicable securities laws) regarding the other party. Both parties understand, and will communicate to all Affiliates\nand Representatives and other persons having knowledge of any material nonpublic information, that it and they are required under applicable\nsecurities laws to refrain from trading in securities of the other party while in possession of this information.\n10. Company agrees that an inadvertent production to it by TWT or any of its Representatives of Evaluation Material protected by the attorney\nclient, attorney work product or other applicable privilege (“Privilege”) of TWT or any of its Representatives, is not intended to constitute a waiver\nof any such Privilege by TWT or any of its Representatives and Company agrees that, upon request, it will immediately return such inadvertently\nproduced Evaluation Material.\n11. This letter agreement is the complete and exclusive statement regarding the subject matter hereof and supersedes all prior and\ncontemporaneous agreements, understandings and communications, oral or written, between the parties regarding such subject matter.\n12. The provisions and covenants set forth in this letter agreement may be amended, modified or waived only by an instrument in writing\nexecuted by TWT and Company, specifying the provision or covenant to be waived or amended. No failure or delay by TWT or Company in\nexercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other\nfurther exercise thereof or the exercise of any other right, power, or privilege hereunder.\n13. Any provision of this letter agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent\nnot held invalid or unenforceable.\n14. Notwithstanding any provision to the contrary contained elsewhere herein, the confidentiality obligations contained in this letter agreement\nor in any other agreement between the parties hereto, as they relate to\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\nany negotiated transaction, shall not apply to the federal tax structure or federal tax treatment of the transaction, and Company (and any of its\nRepresentative) may disclose to any and all persons, without limitation of any kind, the federal tax structure and federal tax treatment of any\ntransaction; provided, that such disclosure may not be made until the earliest of (x) the date of the public announcement of discussions relating to the\ntransaction, (y) the date of the public announcement of the transaction, or (z) the date of the execution of a definitive written agreement to enter into\nthe transaction. The preceding sentence is intended to cause the transaction to be treated as not having been offered under conditions of\nconfidentiality for purposes of Section 1.6011–4(b)(3) (or any successor provision) of the Treasury Regulations promulgated under Section 6011 of\nthe Internal Revenue Code of 1986, as amended, and shall be construed in a manner consistent with such purpose. Subject to the proviso with respect\nto disclosure in the first sentence of this paragraph, TWT acknowledges that it has no proprietary or exclusive rights to the federal tax structure of the\ntransaction or any federal tax matter or federal tax idea related to any negotiated transaction.\n15. Each party agrees that money damages would not be a sufficient remedy for any breach of this letter agreement by it; and that, in addition\nto all other remedies, each party shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach,\nand each party further agrees to waive and to use its best commercially reasonable efforts to cause its Affiliates and their respective Representatives\nto waive any requirement for the securing or posting of any bond in connection with such remedy. In addition, each party agrees that if the other\nparty is the prevailing party in any such litigation, the other party shall be entitled to recover from it all fees, costs and expenses of enforcing any\nright of the other party under or with respect to this letter agreement, including without limitation, such reasonable fees and expenses of attorneys,\nwhich shall include, without limitation, all fees, costs and expenses of appeals.\n16. This letter agreement shall be governed by, and construed (both as to validity and performance) in accordance with, the laws of the State of\nDelaware, without regard to the principles of the conflicts of laws thereof. As the letter agreement is the product of negotiations between the parties,\nneither party shall be deemed the drafter for purposes of construing any ambiguity.\n17. This letter agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken\ntogether shall constitute one and the same agreement, it being understood that all of the parties need not sign the same counterpart. This letter\nagreement may be executed and delivered by facsimile or email transmission of a file in “.pdf” or similar format and upon such delivery, each\nsignature shall be deemed to have the same effect as if the original signature had been delivered to the other party.\n18. Each party’s rights (but not its obligations) under this letter agreement may be assigned by such party to any of its Affiliates or to any party\nthat enters into a transaction substantially similar to the Transaction with such other party. This letter agreement shall inure to the benefit of the\nparties hereto and their respective successors and assigns.\n19. Except as otherwise provided herein, this letter agreement shall terminate twenty-four (24) months after the later of (a) the date of this\nletter agreement or (b) the date upon which Company completes returning the materials required to be returned to TWT pursuant to paragraph 5\nabove, if applicable.\n[SIGNATURE PAGE FOLLOWS]\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between TWT and Company.\nVery truly yours,\nTHIRD WAVE TECHNOLOGIES, INC.\nBy: /s/ Kevin T. Conroy\nName: Kevin T. Conroy\nTitle: Chief Executive Officer\nAccepted and agreed to as of\nthe date first written above:\nHOLOGIC, INC.\nBy:\nName: Mark J. Casey\nTitle: SVP & General Counsel\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between TWT and Company.\nVery truly yours,\nTHIRD WAVE TECHNOLOGIES, INC.\nBy:\nName: Kevin T. Conroy\nTitle: Chief Executive Officer\nAccepted and agreed to as of\nthe date first written above:\nHOLOGIC, INC.\nBy: Mark J. Casey\nName: Mark J. Casey\nTitle: SVP & General Counsel\n502 SOUTH ROSA RD, MADISON, WI 53719-1256\nFax: 608.663.7037\nWEB: WWW.TWT.COM
+c7871f8e79dca4e051a17b51a411dc98.pdf	effective_date jurisdiction party term	EX-10.5 15 d349756dex105.htm SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT - JOHN\nM. EGLE\nExhibit 10.5\nSECOND AMENDED & RESTATED EMPLOYMENT,\nNON-DISCLOSURE, AND NON-COMPETE AGREEMENT\nThis Second Amended & Restated Employment, Non-Disclosure, and Non-Compete Agreement (this “AGREEMENT”) is made effective as of\nMay 1, 2011, by Hub City Industries, L.L.C ., a Louisiana liability company (the “EMPLOYER”), and John M. Egle, an individual resident in\nLafayette, Louisiana (the “EMPLOYEE”).\nRECITALS\nThe Employer desires the Employee’s continued employment with the Employer, and the Employee wishes to accept such continued\nemployment, upon the terms and conditions set forth in this Agreement.\nAGREEMENT\nThe parties, intending to be legally bound, agree as follows:\n1. DEFINITIONS\nFor the purposes of this Agreement, the following terms have the meanings specified or referred to in this Section 1.\n“AGREEMENT”—this Employment, Non-Disclosure, and Non-Competition Agreement, as amended from time to time.\n“BASIC COMPENSATION”—Salary and Benefits.\n“BENEFITS”—as defined in Section 3.1(b).\n“CONFIDENTIAL INFORMATION”—any and all:\n(a) trade secrets concerning the business and affairs of the Employer, product specifications, data, know-how, formulae, compositions,\nprocesses, designs, sketches, photographs, graphs, drawings, samples, inventions and ideas, past, current, and planned research and\ndevelopment, current and planned manufacturing or distribution methods and processes, customer lists, current and anticipated customer\nrequirements, price lists, market studies, business plans, computer software and programs (including object code and source code), computer\nsoftware and database technologies, systems, structures, and architectures (and related formulae, compositions, processes, improvements,\ndevices, know-how, inventions, discoveries, concepts, ideas, designs, methods and information) and any other information, however\ndocumented, that is a trade secret within the meaning of trade secret laws of the State of Louisiana;\n(b) information concerning the business and affairs of the Employer (which includes historical financial statements, financial projections\nand budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, personnel\ntraining and techniques and materials); and\n1\n(c) notes, analysis, compilations, studies, summaries, and other material prepared by or for the Employer containing or based, in whole or\nin part, on any information included in the foregoing.\n“DISABILITY”—as defined in Section 6.2.\n“EFFECTIVE DATE”—the date stated in the first paragraph of the Agreement.\n“EMPLOYMENT PERIOD”—the term of the Executive’s employment under this Agreement.\n“FISCAL YEAR”—the Employer’s fiscal year, as it exists on the Effective Date or as changed from time to time.\n“FOR CAUSE”—as defined in Section 6.3.\n“PERSON”—any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint\nventure, estate, trust, association, organization, or governmental body.\n“POST-EMPLOYMENT PERIOD”—as defined in Section 8.2.\n“PROPRIETARY ITEMS”—as defined in Section 7.2(a)(iv).\n“SALARY”—as defined in Section 3.1(a).\n2. EMPLOYMENT TERMS AND DUTIES\n2.1 EMPLOYMENT\nThe Employer hereby employs the Employee, and the Employee hereby accepts employment by the Employer, upon the terms and conditions\nset forth in this Agreement.\n2.2 TERM\nSubject to the provisions of Section 6, the term of the Employee’s employment under this Agreement will be 2 years, beginning on the 1 day\nof May 2011 and ending on April 30, 2012. The 2nd year of the Agreement is conditioned upon the Employee booking International sales in excess\nof one million ($1,000,000) dollars, within the 1 year of the Agreement. Upon agreement of the Employer and Employee, the terms of this\nAgreement may be extended beyond the initial term until terminated for cause or until terminated as otherwise provided in this Agreement.\n2\nst\nst\n2.3 DUTIES\nThe Employee will initially serve as the Special Assistant to Michel Moreno, and may sometimes also be referred to as the “Market Advisor”\nof the Employer. The Employee will use his best efforts to promote the success of the Employer’s business, and will cooperate fully with the other\nemployees in the advancement of the best interests of Employer. Employee will expand the business opportunities of the Employer, including, but\nnot limited to, increasing revenues and earnings of the Employer. Nothing in this Section 2.3, however, will prevent the Employee from engaging in\nadditional activities in connection with personal investments and community affairs that are not inconsistent with Employee’s duties under this\nAgreement.\n3. COMPENSATION\n3.1 BASIC COMPENSATION\n(a) Salary. The Employee will be paid an annual salary of $244,000.00, subject to adjustment as provided below (the “SALARY”), which\nwill be payable in equal periodic installments according to the Employer’s customary payroll practices, but no less frequently than monthly.\nThe Salary will be reviewed by the Michel Moreno not less frequently than annually, and may not be adjusted downward.\n(b) Benefits. The Employee will, during the Employment Period, be permitted to participate in the pension, profit sharing, bonus, life\ninsurance, hospitalization, major medical, and other employee benefit plans of the Employer that may be in effect from time to time, to the\nextent the Employee is eligible under the terms of those plans (collectively, the “BENEFITS”). The Employer shall not by reason of this\nSection 3 be obligated to institute, maintain, or refrain from changing, amending, or discontinuing, any employee benefit program or plan, so\nlong as such actions are similarly applicable to covered employees generally. The Employer will pay 100% of Employee’s group health and\ndisability insurance premiums as maintained by the Employer.\n(c) The Employer may withhold from the Salary, incentive compensation, and any other compensation, benefits, or amounts payable\nunder this Agreement all federal, state, city, or other taxes as may be required pursuant to any law or governmental regulation or ruling.\n3.2 INCENTIVE COMPENSATION\n(a) The Employee will be entitled to receive 3% to 5%, (percentage to be jointly determined by Employer and Employee), of revenue\ndirectly generated from international sales by Employee for the Company. Gross Revenue as used herein shall be based upon billings made by\nthe Company and compensation predicated thereon shall be paid irrespective of the date of payment to the Company. Employee shall receive\ncompensation upon revenue generated during the term of this Agreement but billed thereafter. Cash and trade discounts shall not be deducted\nfrom the gross selling price.\n3\n(b) Examination of books-Employee shall have the right personally, or through an agent, but at his own expense, to examine the books\nand records of the Company for the purpose of determining the gross revenue.\n4. FACILITIES AND EXPENSES\n4.1 GENERAL\nThe Employee will work at his preferred location and will be directed by his efforts alone. In accordance with the Employer’s\nemployment policies, Employee will be reimbursed reasonable expenses incurred by the Employee, in appropriate entertainment activities, and for\nbusiness promotional expenses. The Employee must file expense reports with respect to such expenses in accordance with the Employer’s policies\nand approved by Michel Moreno.\n4.2 AUTOMOBILE\nThe Employer will pay the Employee an automobile allowance of $1,300.00 per month. The Employee will own his own automobile,\nand maintain and insure it at his own expense, for his business use in connection with his employment under this Agreement. The Employee will at\nhis own expense maintain liability insurance on any automobile used in connection with the Employer’s business, including excess liability\n(umbrella) insurance coverage in an amount not less than $1,000,000 per occurrence, with underlying insurance coverage as required by such excess\nliability insurance policy, and the Employee will furnish proof of such insurance to the Employer as requested by the Employer. The Employee will\nbe solely responsible for all automobile expenses, except for gas and oil expenses which will, with written proof of such expenses, be reimbursed to\nthe Employee by the Employer. All such oil and gas expenses submitted for reimbursement must be allocated by Employee between Employer, and\nany of Employer’s affiliated Employee may be employed by, and Employee will be responsible for all taxes applicable to the reimbursement of these\noil and gas expenses.\n5. VACATIONS AND HOLIDAYS\nThe Employee will be entitled to four (4) weeks’ paid vacation each Fiscal Year to be taken at times selected by him, with the prior notice to\nthe Company’s Members, and in accordance with the vacation policies of the Employer in effect for its Employee officers from time to time. The\nEmployee will also be entitled to the paid holidays set forth in the Employer’s policies.\n6. TERMINATION\n6.1 EVENTS OF TERMINATION\nThe Employment Period, the Employee’s Basic Compensation, and any and all other rights of the Employee under this Agreement or\notherwise as an employee of the Employer will terminate (except as otherwise provided in this Section 6):\n(a) upon the death of the Employee; or\n4\n(b) upon the disability of the Employee (as defined in Section 6.2) immediately upon notice from either party to the other;\n(c) for cause (as defined in Section 6.3), immediately upon notice from the Employer to the Employee, or at such later time as such\nnotice may specify;\n(d) by Employee without cause, immediately upon notice from Employee or at Employee’s later time as such notice may specify.\n6.2 DEFINITION OF DISABILITY\nFor purposes of Section 6.1, the Employee will be deemed to have a “disability” if, for physical or mental reasons, the Employee is\nunable to perform the essential functions of the Employee’s duties under this Agreement for 120 consecutive days, or 180 days during any twelve-\nmonth period, as determined in accordance with this Section 6.2 . The disability of the Employee will be determined by a medical doctor selected by\nwritten agreement of the Employer and the Employee upon the request of either party by notice to the other. If the Employer and the Employee\ncannot agree on the selection of a medical doctor, each of them will select a medical doctor and the two medical doctors will select a third medical\ndoctor who will determine whether the Employee has a disability. The determination of the medical doctor selected under this Section 6.2 will be\nbinding on both parties. The Employee must submit to a reasonable number of examinations by the medical doctor making the determination of\ndisability under this Section 6.2, and the Employee hereby authorizes the disclosure and release to the Employer of such determination and all\nsupporting medical records. If the Employee is not legally competent, the Employee’s legal guardian or duly authorized attorney-in-fact will act in\nthe Employee’s stead, under this Section 6.2, for the purposes of submitting the Employee to the examinations, and providing the authorization of\ndisclosure, required under this Section 6.2 .\n6.3 DEFINITION OF “FOR CAUSE”\nFor purposes of Section 6.1, the phrase “for cause” means: (a) the Employee’s material breach of this Agreement; (b) the Employee’s material\nfailure to adhere to any written Employer policy; (c) the appropriation (or attempted appropriation) of a material business opportunity of the\nEmployer, including attempting to secure or securing any personal profit in connection with any transaction entered into on behalf of the Employer;\n(d) the misappropriation (or attempted misappropriation) of any of the Employer’s funds, property, or opportunity; (e) the conviction of, the\nindictment for (or its procedural equivalent), or the entering of a guilty plea or plea of no contest with respect to a felony punishable by\nimprisonment; (f) Employee’s gross negligence in the performance of the duties and services required of the Employee pursuant to this Agreement\nthat has a material adverse effect on the Employer or any affiliate; or (g) it is found that a material representation or warranty made by the Employee\nin this Agreement was untrue at the time such representation or warranty was made.\n6.4 TERMINATION PAY\nEffective upon the termination of this Agreement, the Employer will be obligated to pay the Employee (or, in the event of his death, his\ndesignated beneficiary as defined below) only such compensation as is provided in this Section 6.4, and in lieu of all other amounts and in\n5\nsettlement and complete release of all claims the Employee may have against the Employer. For purposes of this Section 6.4, the Employee’s\ndesignated beneficiary will be such individual beneficiary or trust, located at such address, as the Employee may designate by notice to the\nEmployer. from time to time or, if the Employee fails to give notice to the Employer of such a beneficiary, the Employee’s estate. Notwithstanding\nthe preceding sentence, the Employer will have no duty, in any circumstances, to attempt to open an estate on behalf of the Employee, to determine\nwhether any beneficiary designated by the Employee is alive or to ascertain the address of any such beneficiary, to determine the existence of any\ntrust, to determine whether any person or entity purporting to act as the Employee’s personal representative (or the trustee of a trust established by\nthe Employee) is duly authorized to act in that capacity, or to locate or attempt to locate any beneficiary, personal representative, or trustee.\n(a) Termination by the Employer for Cause. If the Employer terminates this Agreement for cause, the Employee will be entitled to\nreceive his Salary only through the date this Agreement is effective.\n(b) Termination upon Disability. If this Agreement is terminated by either party as a result of the Employee’s disability, as determined\nunder Section 6.2, the Employer will continue to pay the Employee his Salary for the period of two months following this notice of termination\nless any disability insurance benefits received by Employee under the disability insurance coverage furnished by Employer.\n(c) Termination upon Death. If this Agreement is terminated because of the Employee’s death, the Employee will be entitled to receive\nhis Salary through the end of the calendar month in which his death occurs and one additional month.\n(d) Termination without cause. If this Agreement is terminated because without cause, the Employee will be entitled to receive his Salary\nas it becomes due for the remaining term of this Agreement. If the Employee terminates this Agreement, without cause, Employee will be\nentitled to his Salary only through the date such termination is effective.\n(e) If the Employee terminates this Agreement, Employee will be entitled to his Salary only through the date such termination is\neffective.\n(f) Benefits. The Employee’s accrual of, or participation in plans providing for, the Benefits will cease at the effective date of the\ntermination of this Agreement, and the Employee will be entitled to accrued Benefits pursuant to such plans only as provided in such plans.\nExcluding a termination without cause as provided in Section 6.4(d) and/or a resignation of employment by Employee, the Employee will not\nreceive, as part of his termination pay pursuant to this Section 6, any payment or other compensation for any vacation, holiday, sick leave, or\nother leave unused on the date the notice of termination is given under this Agreement.\n6\n7. NON -DISCLOSURE COVENANT\n7.1 ACKNOWLEDGMENTS BY THE EMPLOYEE\nThe Employee acknowledges that (a) during the Employment Period and as a part of his employment, the Employee will be afforded\naccess to Confidential Information; (b) public disclosure of such Confidential Information could have an adverse effect on the Employer and its\nbusiness; (c) because the Employee possesses substantial technical expertise and skill with respect to the Employer’s business; and (d) the provisions\nof this Section 7 are reasonable and necessary to prevent the improper use or disclosure of Confidential Information.\n7.2 AGREEMENTS OF THE EMPLOYEE\nIn consideration of the compensation and benefits to be paid or provided to the Employee by the Employer under this Agreement, the\nEmployee covenants as follows:\nConfidentiality.\n(i) During and for 2 years following the Employment Period, the Employee will hold in confidence the Confidential Information\nand will not disclose it to any person except with the specific prior written consent of the Employer or except as otherwise expressly\npermitted by the terms of this Agreement.\n(ii) Any trade secrets of the Employer will be entitled to all of the protections and benefits under the trade secret law of the States\nof Louisiana and any other applicable law. If any information that the Employer deems to be a trade secret is found by a court of\ncompetent jurisdiction not to be a trade secret for purposes of this Agreement, such information will, nevertheless, be considered\nConfidential Information for purposes of this Agreement. The Employee hereby waives any requirement that the Employer submit proof\nof the economic value of any trade secret or post a bond or other security.\n(iii) None of the foregoing obligations and restrictions applies to any part of the Confidential information that the Employee\ndemonstrates was or became generally available to the public other than as a result of a disclosure by the Employee.\n(iv) The Employee will not remove from the Employer’s premises (except to the extent such removal is necessary for purposes of\nthe performance of the Employee’s duties at home or while traveling, or except as otherwise specifically authorized by the Employer)\nany document, record, notebook, plan, model, component, device, or computer software or code, whether embodied in a disk or in any\nother form (collectively, the “PROPRIETARY ITEMS”). The Employee recognizes that, as between the Employer and the Employee, all\nof the Proprietary items, whether or not developed by the Employee, are the exclusive property of the Employer. Upon termination of\nthis Agreement by either party, or upon the request of the Employer during the Employment Period, the Employee will return to the\nEmployer all of the Proprietary items in the Employee’s possession or subject to the Employee’s control, and the Employee shall not\nretain any copies, abstracts, sketches, or other physical or electronic embodiment of any of the Proprietary items.\n7\n(v) All information, ideas, concepts, improvements, discoveries, and inventions, whether patentable or not, which are conceived,\nmade, developed or acquired by Employee, individually or in conjunction with others, during Employee’s employment by the Employer\n(whether’ during business hours or otherwise and whether on the Employer’s premises or otherwise) which relate to the Employer’s\nbusiness, products or services (including, without limitation, all such information relating to corporate opportunities, research, financial\nand sales data, pricing and trading terms, evaluations, opinions, interpretations, acquisition prospects, the identity of customers or their\nrequirements, the identity of key contacts within the customer’s organizations or within the organization of acquisition prospects, or\nmarketing and merchandising techniques, prospective names, and marks), and all writings or materials of any type embodying any of\nsuch items, will be the sole and exclusive property of the Employer.\n7.3 DISPUTES OR CONTROVERSIES\nThe Employee recognizes that should a dispute or controversy arising from or relating to this Agreement be submitted for adjudication to\nany court, arbitration panel, or other third party, the preservation of the secrecy of Confidential information may be jeopardized. All pleadings,\ndocuments, testimony, and records relating to any such adjudication will be maintained in secrecy and will be available for inspection by the\nEmployer, the Employee, and their respective attorneys and experts, who will agree, in advance and in writing, to receive and maintain all such\ninformation in secrecy, except as may be limited by them in writing.\n8. NON -COMPETITION AND NON-INTERFERENCE\n8.1 ACKNOWLEDGMENTS BY THE EMPLOYEE\nThe Employee acknowledges that: (a) the services to be performed by him under this Agreement are of a special, unique, unusual,\nextraordinary, and intellectual character; (b) the Employer’s business is regional in scope and its products are marketed throughout the States of\nLouisiana, Mississippi, Texas and offshore in the Gulf of Mexico; (c) the Employer competes with other businesses that are or could be located in\nany part of the States of Louisiana, Mississippi, or Texas and (d) the provisions of this Section 8 are reasonable and necessary to protect the\nEmployer’s business.\n8.2 COVENANTS OF THE EMPLOYEE\nIn consideration of the acknowledgments by the Employee, and in consideration of the compensation and benefits to be paid or provided\nto the Employee by the Employer, the Employee covenants that he will not, directly or indirectly:\n8\n(a) during the Employment Period, except in the course of his employment hereunder, and during the Post-Employment Period, engage\nor invest in, own, manage, operate, finance, control, or participate in the ownership, management, operation, financing, or control of, be\nemployed by, associated with, or in any manner connected with, lend the Employee’s name or any similar name to, lend Employee’s credit to\nor render services or advice to, any business that competes in whole or in part with the business of the Employer anywhere the Employer\nconducts business, and specifically within the States of Mississippi, Texas, the parishes of Louisiana described in Exhibit A attached hereto\nand offshore in the Gulf of Mexico; provided, however, that the Employee may purchase or otherwise acquire up to (but not more than) five\npercent of any class of securities of any enterprise (but without otherwise participating in the activities of such enterprise) if such securities are\nlisted on any national or regional securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934;\n(b) whether for the Employee’s own account or for the account of any other person, at any time during the Employment Period and the\nPost-Employment Period, solicit business of the same or similar type being carried on by the Employer, from any person known by the\nEmployee to be a customer of the Employer, whether or not the Employee had personal contact with such person during and by reason of the\nEmployee’s employment with the Employer;\n(c) whether for the Employee’s own account or the account of any other person (i) at any time during the Employment Period and the\nPost-Employment Period, solicit, employ, or otherwise engage as an employee, independent contractor, or otherwise, any person who is or was\nan employee of the Employer at any time during the Employment Period or in any manner induce or attempt to induce any employee of the\nEmployer to terminate his employment with the Employer; or (ii) at any time during the Employment Period and the Post-Employment Period\ninterfere with the Employer’s relationship with any person, including any person who at any time during the Employment Period was an\nemployee, contractor, supplier, or customer of the Employer; or\n(d) at any time during or after the Employment Period, disparage the Employer or any of its shareholders, directors, officers, employees,\nor agents.\nFor purposes of this Section 8.2, the term “Post-Employment Period” means the two year period beginning on the date of termination of the\nEmployee’s employment with the Employer.\nEmployee acknowledges and agrees that Employee, while employed by the Employer, owes a fiduciary duty of loyalty, fidelity and allegiance\nto act at all times in the best interest of the Employer, to do no act which would intentionally injure the Employer’s business, interests, or reputation.\nIn keeping with Employee’s fiduciary duties owed to the Employer, Employee agrees that Employee will not knowingly become involved in a\nconflict of interest with the Employer or its affiliates, or upon discovery thereof, allow such a conflict to continue.\n9\nIf any covenant in this Section 8.2 is held to be unreasonable, arbitrary, or against public policy, such covenant will be considered to be\ndivisible with respect to scope, time, and geographic area, and such lesser scope, time, or geographic area, or all of them, as a court of competent\njurisdiction may determine to be reasonable, not arbitrary, and not against public policy, will be effective, binding, and enforceable against the\nEmployee. Nevertheless, if any of the aforesaid restrictions are found by a court having jurisdiction to be unreasonable or overly broad as to\ngeographic area or time, or otherwise unenforceable, the parties intend for the restrictions herein set forth to be modified by such courts so as to be\nreasonable and enforceable and, as so modified to be fully enforced.\nThe Employee will, while the covenant under this Section 8.2 is in effect, give notice to the Employer, within ten days after accepting any\nother employment, of the identity of the Employee’s employer. The Buyer or the Employer may notify such employer that the Employee is bound by\nthis Agreement and, at the Employer’s election, furnish such employer with a copy of this Agreement or relevant portions thereof.\n9. GENERAL PROVISIONS\n9.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY\nThe Employee acknowledges that the injury that would be suffered by the Employer as a result of a breach of the provisions of this\nAgreement (including but not limited to any provision of Sections 7 and 8) would be irreparable and that an award of monetary damages to the\nEmployer for such a breach would be an inadequate remedy. Consequently, the Employer will have the right, in addition to any other rights it may\nhave, to obtain injunctive relief to restrain any breach or threatened breach or otherwise to specifically enforce any provision of this Agreement and\nthe Employer will not be obligated to post bond or other security in seeking such relief. Without limiting the Employer’s rights under this Section 9\nor any other remedies of the Employer, if the Employee breaches any of the provisions of Section 7 or 8, the Employer will have the right to cease\nmaking any payments otherwise due to the Employee under this Agreement.\n9.2 COVENANTS OF SECTIONS 7 AND 8 ARE ESSENTIAL AND INDEPENDENT COVENANTS\nThe covenants by the Employee in Sections 7 and 8 are essential elements of this Agreement, and without the Employee’s agreement to\ncomply with such covenants, the Employer would not have entered into this Agreement or employed or continued the employment of the Employee.\nThe Employer and the Employee have independently consulted their respective counsel and have been advised in all respects concerning the\nreasonableness and propriety of such covenants, with specific regard to the nature of the business conducted by the Employer.\nThe Employee’s covenants in Sections 7 and 8 are independent covenants and the existence of any claim by the Employee against the\nEmployer under this Agreement or otherwise, or against the Buyer, will not excuse the Employee’s breach of any covenant in Section 7 or 8.\n10\nIf the Employee’s employment hereunder expires or is terminated, this Agreement will continue in full force and effect as is necessary or\nappropriate to enforce the covenants and agreements of the Employee in Sections 7 and 8.\n9.3 REPRESENTATIONS AND WARRANTIES BY THE EMPLOYEE\nThe Employee represents and warrants to the Employer that the execution and delivery by the Employee of this Agreement do not, and\nthe performance by the Employee of the Employee’s obligations hereunder will not, with or without the giving of notice or the passage of time, or\nboth: (a) violate any judgment, writ, injunction, or order of any court, arbitrator, or governmental agency applicable to the Employee; or (b) conflict\nwith, result in the breach of any provisions of or the termination of, or constitute a default under, any agreement to which the Employee is a party or\nby which the Employee is or may be bound.\n9.4 OBLIGATIONS CONTINGENT ON PERFORMANCE\nThe obligations of the Employer hereunder, including its obligations to pay the compensation provided for herein, are contingent upon\nthe Employee’s performance of all the Employee’s obligations hereunder.\n9.5 WAIVER\nThe rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by either\nparty in exercising any right, power, or privilege under this Agreement will operate as a waiver of such right, power, or privilege, and no single or\npartial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of\nany other right, power, or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be\ndischarged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no\nwaiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one\nparty will be deemed to be a waiver of any obligation of that party or of the right of the party giving the notice or demand to take further action\nwithout notice or demand as provided in this Agreement.\n9.6 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED\nThis Agreement will inure to the benefit of, and will be binding upon, the parties hereto and their respective successors, assigns, heirs,\nand legal representatives, including any entity with which the Employer may merge or consolidate or to which all or substantially all of its assets\nmay be transferred. The duties and covenants of the Employee under this Agreement, being personal, may not be delegated.\n9.7 NOTICES\nAll notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly\ngiven when (a) delivered by hand (with written confirmation of receipt), (b) sent by facsimile (with written confirmation of receipt),\n11\nprovided that a copy is mailed by registered mail, return receipt requested, or (c) when received by the addressee, if sent by a nationally recognized\novernight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to any other\naddresses and facsimile numbers as a party may designate by notice to the other parties):\nIf to Employer:\nHub City Industries, L.L .C.\n500 Dover Blvd., Suite 100\nLafayette, LA 70503\nAttention: Earl Blackwell\nWith a copy to:\nFrank S. Slavich, III\nBabineaux, Poche, Anthony & Slavich, LLC\n1201 Camellia Blvd., Suite 300\nLafayette, LA 70508\nIf to the Employee:\nJohn Egle\n112 East Peck Blvd.\nLafayette, LA 70508\nWith a copy to:\nCharles Rush, Esq.\n202 Magnate Drive\nLafayette, LA 70508\n9.8 INDEMNIFICATION OF EMPLOYEE\nThe Employer will defend, indemnify, and hold harmless Employee if Employee is made a party to a proceeding because he is a party to\nthis Agreement against liability incurred in the proceeding, if he:\n(a) conducted himself in good faith;\n(b) Reasonably believed that his conduct was in or at least not opposed to the Company’s best interest; and\n(c) In the case of any criminal proceeding, had no reasonable cause to believe his conduct was unlawful.\n9.9 ENTIRE AGREEMENT: AMENDMENTS\nThis Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersede all prior\nagreements and understandings, oral or written, between the parties hereto with respect to the subject matter hereof. This Agreement may not be\namended orally, but only by an agreement in writing signed by the parties this Agreement.\n12\n9.10 GOVERNING LAW\nThis Agreement will be governed by the laws of the State of Louisiana without regard to conflicts of laws principles.\n9.11 JURISDICTION\nAny action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement will be brought\nagainst either of the parties in the courts of the State of Louisiana, Parish of Lafayette, or if it has or can acquire jurisdiction, in the United States\nDistrict Court for the Western District of Louisiana, and each of the parties consents to the jurisdiction of such courts (and of the appropriate\nappellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding referred to in\nthe preceding sentence may be served on either party anywhere in the world.\n9.12 SECTION HEADINGS, CONSTRUCTION\nThe headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All\nreferences to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in\nthis Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word\n“including” does not limit the preceding words or terms.\n9.13 SEVERABILITY\nIf any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this\nAgreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in\nfull force and effect to the extent not held invalid or unenforceable.\n9.14 COUNTERPARTS\nThis Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement\nand all of which, when taken together, will be deemed to constitute one and the same agreement.\n9.15 ATTORNEY’S FEES\nIn the event that there is any controversy or claim arising out of or relating to this Agreement, or to the interpretation, breach or\nenforcement thereof, and any action or proceeding is commenced to enforce the provisions of this Agreement, the prevailing party shall be entitled to\na reasonable attorney’s fee, costs and expenses.\n9.16 JOINT DRAFTING\nThe parties have participated jointly in negotiating and drafting this Agreement. If a question of interpretation arises, this Agreement\nshall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of\nthe authorship of any provision of this Agreement.\n13\n9.17 WAIVE OF JURY TRIAL\nTHE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO\nTHIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS, WHETHER NOW EXISTING OR HEREAFTER ARISING,\nAND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY\nOF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR\nAGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY PROCEEDING WHATSOEVER\nBETWEEN THEM RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS SHALL INSTEAD BE\nTRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.\n9.18 TERMINATION OF PRIOR EMPLOYEMENT AGREEMENT\nThis Agreement hereby supersedes and replaces that certain Amended and Restated Employment, Non-Disclosure, and Non-Compete\nAgreement dated January 15, 2009 (the “Original Agreement”). The parties acknowledge and agree that the Original Agreement is terminated as of\nthe Effective Date of this Agreement.\nIN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date above first written above.\nEMPLOYER:\nHUB CITY INDUSTRIES, L.L.C\nBy: /s/ Michel B. Moreno\nName: Michel B. Moreno\nTitle: Managing Manger\nEMPLOYEE:\n/s/ John M. Egle\nJOHN M. EGLE\n14\nEXHIBIT A\nLOUISIANA PARISHES\nAcadia\nAllen\nAscension\nAssumption\nAvoyelles\nBeauregard\nBienville\nBossier\nCaddo\nCalcasieu\nCaldwell\nCameron\nCatahoula\nClaiborne\nConcordia\nDeSoto\nEast Baton Rouge\nEast Carroll\nEast Feliciana\nEvangeline\nFranklin\nGrant\nIberia\nIberville\nJackson\nJefferson\nJefferson Davis\nLafayette\nLafourche\nLaSalle\nLincoln\nLivingston\nMadison\nMorehouse\nNatchitoches\nOrleans\nOuachita\nPlaquemines\nPointe Coupee\nRapides\nRed River\nRichland\nSabine\nSt. Bernard\nSt. Charles\nSt. Helena\nSt. James\nSt. John the Baptist\nSt. Landry\nSt. Martin\nSt. Mary\nSt. Tammany\nTangipahoa\nTensas\nTerrebonne\nUnion\nVermillion\nVernon\nWashington\nWebster\nWest Baton Rouge\nWest Carroll\nWest Feliciana\nWinn\n15	EX-10.5 15 d349756dex105.htm SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT - JOHN\nM. EGLE\nExhibit 10.5\nSECOND AMENDED & RESTATED EMPLOYMENT,\nNON-DISCLOSURE, AND NON-COMPETE AGREEMENT\nThis Second Amended & Restated Employment, Non-Disclosure, and Non-Compete Agreement (this “AGREEMENT”) is made effective as of\nMay 1, 2011, by Hub City Industries, L.L.C., a Louisiana liability company (the “EMPLOYER”), and John M. Egle, an individual resident in\nLafayette, Louisiana (the “EMPLOYEE”).\nRECITALS\nThe Employer desires the Employee’s continued employment with the Employer, and the Employee wishes to accept such continued\nemployment, upon the terms and conditions set forth in this Agreement.\nAGREEMENT\nThe parties, intending to be legally bound, agree as follows:\n1. DEFINITIONS\nFor the purposes of this Agreement, the following terms have the meanings specified or referred to in this Section 1.\n“AGREEMENT”—this Employment, Non-Disclosure, and Non-Competition Agreement, as amended from time to time.\n“BASIC COMPENSATION”—Salary and Benefits.\n“BENEFITS”—as defined in Section 3.1(b).\n“CONFIDENTIAL INFORMATION”—any and all:\n(a) trade secrets concerning the business and affairs of the Employer, product specifications, data, know-how, formulae, compositions,\nprocesses, designs, sketches, photographs, graphs, drawings, samples, inventions and ideas, past, current, and planned research and\ndevelopment, current and planned manufacturing or distribution methods and processes, customer lists, current and anticipated customer\nrequirements, price lists, market studies, business plans, computer software and programs (including object code and source code), computer\nsoftware and database technologies, systems, structures, and architectures (and related formulae, compositions, processes, improvements,\ndevices, know-how, inventions, discoveries, concepts, ideas, designs, methods and information) and any other information, however\ndocumented, that is a trade secret within the meaning of trade secret laws of the State of Louisiana;\n(b) information concerning the business and affairs of the Employer (which includes historical financial statements, financial projections\nand budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, personnel\ntraining and techniques and materials); and\n(c) notes, analysis, compilations, studies, summaries, and other material prepared by or for the Employer containing or based, in whole or\nin part, on any information included in the foregoing.\n“DISABILITY”—as defined in Section 6.2.\n“EFFECTIVE DATE”—the date stated in the first paragraph of the Agreement.\n“EMPLOYMENT PERIOD”—the term of the Executive’s employment under this Agreement.\n“FISCAL YEAR”—the Employer’s fiscal year, as it exists on the Effective Date or as changed from time to time.\n“FOR CAUSE”—as defined in Section 6.3.\n“PERSON”—any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint\nventure, estate, trust, association, organization, or governmental body.\n“POST-EMPLOYMENT PERIOD”—as defined in Section 8.2.\n“PROPRIETARY ITEMS”—as defined in Section 7.2(a)(iv).\n“SALARY”—as defined in Section 3.1(a).\nEMPLOYMENT TERMS AND DUTIES\n2.1 EMPLOYMENT\nThe Employer hereby employs the Employee, and the Employee hereby accepts employment by the Employer, upon the terms and conditions\nset forth in this Agreement. 22 TERM\nSubject to the provisions of Section 6, the term of the Employee’s employment under this Agreement will be 2 years, beginning on the 1st day\nof May 2011 and ending on April 30, 2012. The 2nd year of the Agreement is conditioned upon the Employee booking International sales in excess of one million ($1,000,000) dollars, within the 1st year of the Agreement. Upon agreement of the Employer and Employee, the terms of this Agreement may be extended beyond the initial term until terminated for cause or until terminated as otherwise provided in this Agreement. 2\n2.3 DUTIES\nThe Employee will initially serve as the Special Assistant to Michel Moreno, and may sometimes also be referred to as the “Market Advisor”\nof the Employer. The Employee will use his best efforts to promote the success of the Employer’s business, and will cooperate fully with the other\nemployees in the advancement of the best interests of Employer. Employee will expand the business opportunities of the Employer, including, but\nnot limited to, increasing revenues and earnings of the Employer. Nothing in this Section 2.3, however, will prevent the Employee from engaging in\nadditional activities in connection with personal investments and community affairs that are not inconsistent with Employee’s duties under this\nAgreement.\n3. COMPENSATION\n3.1 BASIC COMPENSATION\n(a) Salary. The Employee will be paid an annual salary of $244,000.00, subject to adjustment as provided below (the “SALARY”), which\nwill be payable in equal periodic installments according to the Employer’s customary payroll practices, but no less frequently than monthly.\nThe Salary will be reviewed by the Michel Moreno not less frequently than annually, and may not be adjusted downward.\n(b) Benefits. The Employee will, during the Employment Period, be permitted to participate in the pension, profit sharing, bonus, life\ninsurance, hospitalization, major medical, and other employee benefit plans of the Employer that may be in effect from time to time, to the\nextent the Employee is eligible under the terms of those plans (collectively, the “BENEFITS”). The Employer shall not by reason of this\nSection 3 be obligated to institute, maintain, or refrain from changing, amending, or discontinuing, any employee benefit program or plan, so\nlong as such actions are similarly applicable to covered employees generally. The Employer will pay 100% of Employee’s group health and\ndisability insurance premiums as maintained by the Employer.\n(c) The Employer may withhold from the Salary, incentive compensation, and any other compensation, benefits, or amounts payable\nunder this Agreement all federal, state, city, or other taxes as may be required pursuant to any law or governmental regulation or ruling.\n3.2 INCENTIVE COMPENSATION\n(a) The Employee will be entitled to receive 3% to 5%, (percentage to be jointly determined by Employer and Employee), of revenue\ndirectly generated from international sales by Employee for the Company. Gross Revenue as used herein shall be based upon billings made by\nthe Company and compensation predicated thereon shall be paid irrespective of the date of payment to the Company. Employee shall receive\ncompensation upon revenue generated during the term of this Agreement but billed thereafter. Cash and trade discounts shall not be deducted\nfrom the gross selling price.\n(b) Examination of books-Employee shall have the right personally, or through an agent, but at his own expense, to examine the books\nand records of the Company for the purpose of determining the gross revenue.\n4. FACILITIES AND EXPENSES\n4.1 GENERAL\nThe Employee will work at his preferred location and will be directed by his efforts alone. In accordance with the Employer’s\nemployment policies, Employee will be reimbursed reasonable expenses incurred by the Employee, in appropriate entertainment activities, and for\nbusiness promotional expenses. The Employee must file expense reports with respect to such expenses in accordance with the Employer’s policies\nand approved by Michel Moreno.\n4.2 AUTOMOBILE\nThe Employer will pay the Employee an automobile allowance of $1,300.00 per month. The Employee will own his own automobile,\nand maintain and insure it at his own expense, for his business use in connection with his employment under this Agreement. The Employee will at\nhis own expense maintain liability insurance on any automobile used in connection with the Employer’s business, including excess liability\n(umbrella) insurance coverage in an amount not less than $1,000,000 per occurrence, with underlying insurance coverage as required by such excess\nliability insurance policy, and the Employee will furnish proof of such insurance to the Employer as requested by the Employer. The Employee will\nbe solely responsible for all automobile expenses, except for gas and oil expenses which will, with written proof of such expenses, be reimbursed to\nthe Employee by the Employer. All such oil and gas expenses submitted for reimbursement must be allocated by Employee between Employer, and\nany of Employer’s affiliated Employee may be employed by, and Employee will be responsible for all taxes applicable to the reimbursement of these\noil and gas expenses.\n5. VACATIONS AND HOLIDAYS\nThe Employee will be entitled to four (4) weeks’ paid vacation each Fiscal Year to be taken at times selected by him, with the prior notice to\nthe Company’s Members, and in accordance with the vacation policies of the Employer in effect for its Employee officers from time to time. The\nEmployee will also be entitled to the paid holidays set forth in the Employer’s policies.\n6. TERMINATION\n6.1 EVENTS OF TERMINATION\nThe Employment Period, the Employee’s Basic Compensation, and any and all other rights of the Employee under this Agreement or\notherwise as an employee of the Employer will terminate (except as otherwise provided in this Section 6):\n(a) upon the death of the Employee; or\n(b) upon the disability of the Employee (as defined in Section 6.2) immediately upon notice from either party to the other;\n(c) for cause (as defined in Section 6.3), immediately upon notice from the Employer to the Employee, or at such later time as such\nnotice may specify;\n(d) by Employee without cause, immediately upon notice from Employee or at Employee’s later time as such notice may specify.\n6.2 DEFINITION OF DISABILITY\nFor purposes of Section 6.1, the Employee will be deemed to have a “disability” if, for physical or mental reasons, the Employee is\nunable to perform the essential functions of the Employee’s duties under this Agreement for 120 consecutive days, or 180 days during any twelve-\nmonth period, as determined in accordance with this Section 6.2. The disability of the Employee will be determined by a medical doctor selected by\nwritten agreement of the Employer and the Employee upon the request of either party by notice to the other. If the Employer and the Employee\ncannot agree on the selection of a medical doctor, each of them will select a medical doctor and the two medical doctors will select a third medical\ndoctor who will determine whether the Employee has a disability. The determination of the medical doctor selected under this Section 6.2 will be\nbinding on both parties. The Employee must submit to a reasonable number of examinations by the medical doctor making the determination of\ndisability under this Section 6.2, and the Employee hereby authorizes the disclosure and release to the Employer of such determination and all\nsupporting medical records. If the Employee is not legally competent, the Employee’s legal guardian or duly authorized attorney-in-fact will act in\nthe Employee’s stead, under this Section 6.2, for the purposes of submitting the Employee to the examinations, and providing the authorization of\ndisclosure, required under this Section 6.2.\n6.3 DEFINITION OF “FOR CAUSE”\nFor purposes of Section 6.1, the phrase “for cause” means: (a) the Employee’s material breach of this Agreement; (b) the Employee’s material\nfailure to adhere to any written Employer policy; (c) the appropriation (or attempted appropriation) of a material business opportunity of the\nEmployer, including attempting to secure or securing any personal profit in connection with any transaction entered into on behalf of the Employer;\n(d) the misappropriation (or attempted misappropriation) of any of the Employer’s funds, property, or opportunity; (e) the conviction of, the\nindictment for (or its procedural equivalent), or the entering of a guilty plea or plea of no contest with respect to a felony punishable by\nimprisonment; (f) Employee’s gross negligence in the performance of the duties and services required of the Employee pursuant to this Agreement\nthat has a material adverse effect on the Employer or any affiliate; or (g) it is found that a material representation or warranty made by the Employee\nin this Agreement was untrue at the time such representation or warranty was made.\n6.4 TERMINATION PAY\nEffective upon the termination of this Agreement, the Employer will be obligated to pay the Employee (or, in the event of his death, his\ndesignated beneficiary as defined below) only such compensation as is provided in this Section 6.4, and in lieu of all other amounts and in\n5\nsettlement and complete release of all claims the Employee may have against the Employer. For purposes of this Section 6.4, the Employee’s\ndesignated beneficiary will be such individual beneficiary or trust, located at such address, as the Employee may designate by notice to the\nEmployer. from time to time or, if the Employee fails to give notice to the Employer of such a beneficiary, the Employee’s estate. Notwithstanding\nthe preceding sentence, the Employer will have no duty, in any circumstances, to attempt to open an estate on behalf of the Employee, to determine\nwhether any beneficiary designated by the Employee is alive or to ascertain the address of any such beneficiary, to determine the existence of any\ntrust, to determine whether any person or entity purporting to act as the Employee’s personal representative (or the trustee of a trust established by\nthe Employee) is duly authorized to act in that capacity, or to locate or attempt to locate any beneficiary, personal representative, or trustee.\n(a) Termination by the Employer for Cause. If the Employer terminates this Agreement for cause, the Employee will be entitled to\nreceive his Salary only through the date this Agreement is effective.\n(b) Termination upon Disability. If this Agreement is terminated by either party as a result of the Employee’s disability, as determined\nunder Section 6.2, the Employer will continue to pay the Employee his Salary for the period of two months following this notice of termination\nless any disability insurance benefits received by Employee under the disability insurance coverage furnished by Employer.\n(c) Termination upon Death. If this Agreement is terminated because of the Employee’s death, the Employee will be entitled to receive\nhis Salary through the end of the calendar month in which his death occurs and one additional month.\n(d) Termination without cause. If this Agreement is terminated because without cause, the Employee will be entitled to receive his Salary\nas it becomes due for the remaining term of this Agreement. If the Employee terminates this Agreement, without cause, Employee will be\nentitled to his Salary only through the date such termination is effective.\n(e) If the Employee terminates this Agreement, Employee will be entitled to his Salary only through the date such termination is\neffective.\n(f) Benefits. The Employee’s accrual of, or participation in plans providing for, the Benefits will cease at the effective date of the\ntermination of this Agreement, and the Employee will be entitled to accrued Benefits pursuant to such plans only as provided in such plans.\nExcluding a termination without cause as provided in Section 6.4(d) and/or a resignation of employment by Employee, the Employee will not\nreceive, as part of his termination pay pursuant to this Section 6, any payment or other compensation for any vacation, holiday, sick leave, or\nother leave unused on the date the notice of termination is given under this Agreement.\n \n6\n7. NON-DISCLOSURE COVENANT\n7.1 ACKNOWLEDGMENTS BY THE EMPLOYEE\nThe Employee acknowledges that (a) during the Employment Period and as a part of his employment, the Employee will be afforded\naccess to Confidential Information; (b) public disclosure of such Confidential Information could have an adverse effect on the Employer and its\nbusiness; (c) because the Employee possesses substantial technical expertise and skill with respect to the Employer’s business; and (d) the provisions\nof this Section 7 are reasonable and necessary to prevent the improper use or disclosure of Confidential Information.\n7.2 AGREEMENTS OF THE EMPL.OYEE\nIn consideration of the compensation and benefits to be paid or provided to the Employee by the Employer under this Agreement, the\nEmployee covenants as follows:\nConfidentiality.\n(i) During and for 2 years following the Employment Period, the Employee will hold in confidence the Confidential Information\nand will not disclose it to any person except with the specific prior written consent of the Employer or except as otherwise expressly\npermitted by the terms of this Agreement.\n(ii) Any trade secrets of the Employer will be entitled to all of the protections and benefits under the trade secret law of the States\nof Louisiana and any other applicable law. If any information that the Employer deems to be a trade secret is found by a court of\ncompetent jurisdiction not to be a trade secret for purposes of this Agreement, such information will, nevertheless, be considered\nConfidential Information for purposes of this Agreement. The Employee hereby waives any requirement that the Employer submit proof\nof the economic value of any trade secret or post a bond or other security.\n(iii) None of the foregoing obligations and restrictions applies to any part of the Confidential information that the Employee\ndemonstrates was or became generally available to the public other than as a result of a disclosure by the Employee.\n(iv) The Employee will not remove from the Employer’s premises (except to the extent such removal is necessary for purposes of\nthe performance of the Employee’s duties at home or while traveling, or except as otherwise specifically authorized by the Employer)\nany document, record, notebook, plan, model, component, device, or computer software or code, whether embodied in a disk or in any\nother form (collectively, the “PROPRIETARY ITEMS”). The Employee recognizes that, as between the Employer and the Employee, all\nof the Proprietary items, whether or not developed by the Employee, are the exclusive property of the Employer. Upon termination of\nthis Agreement by either party, or upon the request of the Employer during the Employment Period, the Employee will return to the\nEmployer all of the Proprietary items in the Employee’s possession or subject to the Employee’s control, and the Employee shall not\nretain any copies, abstracts, sketches, or other physical or electronic embodiment of any of the Proprietary items.\n7\n(v) All information, ideas, concepts, improvements, discoveries, and inventions, whether patentable or not, which are conceived,\nmade, developed or acquired by Employee, individually or in conjunction with others, during Employee’s employment by the Employer\n(whether’ during business hours or otherwise and whether on the Employer’s premises or otherwise) which relate to the Employer’s\nbusiness, products or services (including, without limitation, all such information relating to corporate opportunities, research, financial\nand sales data, pricing and trading terms, evaluations, opinions, interpretations, acquisition prospects, the identity of customers or their\nrequirements, the identity of key contacts within the customer’s organizations or within the organization of acquisition prospects, or\nmarketing and merchandising techniques, prospective names, and marks), and all writings or materials of any type embodying any of\nsuch items, will be the sole and exclusive property of the Employer.\n7.3 DISPUTES OR CONTROVERSIES\nThe Employee recognizes that should a dispute or controversy arising from or relating to this Agreement be submitted for adjudication to\nany court, arbitration panel, or other third party, the preservation of the secrecy of Confidential information may be jeopardized. All pleadings,\ndocuments, testimony, and records relating to any such adjudication will be maintained in secrecy and will be available for inspection by the\nEmployer, the Employee, and their respective attorneys and experts, who will agree, in advance and in writing, to receive and maintain all such\ninformation in secrecy, except as may be limited by them in writing.\n8. NON-COMPETITION AND NON-INTERFERENCE\n8.1 ACKNOWLEDGMENTS BY THE EMPL.OYEE\nThe Employee acknowledges that: (a) the services to be performed by him under this Agreement are of a special, unique, unusual,\nextraordinary, and intellectual character; (b) the Employer’s business is regional in scope and its products are marketed throughout the States of\nLouisiana, Mississippi, Texas and offshore in the Gulf of Mexico; (c) the Employer competes with other businesses that are or could be located in\nany part of the States of Louisiana, Mississippi, or Texas and (d) the provisions of this Section 8 are reasonable and necessary to protect the\nEmployer’s business.\n8.2 COVENANTS OF THE EMPLOYEE\nIn consideration of the acknowledgments by the Employee, and in consideration of the compensation and benefits to be paid or provided\nto the Employee by the Employer, the Employee covenants that he will not, directly or indirectly:\n8\n(a) during the Employment Period, except in the course of his employment hereunder, and during the Post-Employment Period, engage\nor invest in, own, manage, operate, finance, control, or participate in the ownership, management, operation, financing, or control of, be\nemployed by, associated with, or in any manner connected with, lend the Employee’s name or any similar name to, lend Employee’s credit to\nor render services or advice to, any business that competes in whole or in part with the business of the Employer anywhere the Employer\nconducts business, and specifically within the States of Mississippi, Texas, the parishes of Louisiana described in Exhibit A attached hereto\nand offshore in the Gulf of Mexico; provided, however, that the Employee may purchase or otherwise acquire up to (but not more than) five\npercent of any class of securities of any enterprise (but without otherwise participating in the activities of such enterprise) if such securities are\nlisted on any national or regional securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934;\n(b) whether for the Employee’s own account or for the account of any other person, at any time during the Employment Period and the\nPost-Employment Period, solicit business of the same or similar type being carried on by the Employer, from any person known by the\nEmployee to be a customer of the Employer, whether or not the Employee had personal contact with such person during and by reason of the\nEmployee’s employment with the Employer;\n(c) whether for the Employee’s own account or the account of any other person (i) at any time during the Employment Period and the\nPost-Employment Period, solicit, employ, or otherwise engage as an employee, independent contractor, or otherwise, any person who is or was\nan employee of the Employer at any time during the Employment Period or in any manner induce or attempt to induce any employee of the\nEmployer to terminate his employment with the Employer; or (ii) at any time during the Employment Period and the Post-Employment Period\ninterfere with the Employer’s relationship with any person, including any person who at any time during the Employment Period was an\nemployee, contractor, supplier, or customer of the Employer; or\n(d) at any time during or after the Employment Period, disparage the Employer or any of its shareholders, directors, officers, employees,\nor agents.\nFor purposes of this Section 8.2, the term “Post-Employment Period” means the two year period beginning on the date of termination of the Employee’s employment with the Employer. Employee acknowledges and agrees that Employee, while employed by the Employer, owes a fiduciary duty of loyalty, fidelity and allegiance\nto act at all times in the best interest of the Employer, to do no act which would intentionally injure the Employer’s business, interests, or reputation. In keeping with Employee’s fiduciary duties owed to the Employer, Employee agrees that Employee will not knowingly become involved in a conflict of interest with the Employer or its affiliates, or upon discovery thereof, allow such a conflict to continue. 9\nIf any covenant in this Section 8.2 is held to be unreasonable, arbitrary, or against public policy, such covenant will be considered to be\ndivisible with respect to scope, time, and geographic area, and such lesser scope, time, or geographic area, or all of them, as a court of competent\njurisdiction may determine to be reasonable, not arbitrary, and not against public policy, will be effective, binding, and enforceable against the\nEmployee. Nevertheless, if any of the aforesaid restrictions are found by a court having jurisdiction to be unreasonable or overly broad as to\ngeographic area or time, or otherwise unenforceable, the parties intend for the restrictions herein set forth to be modified by such courts so as to be\nreasonable and enforceable and, as so modified to be fully enforced.\nThe Employee will, while the covenant under this Section 8.2 is in effect, give notice to the Employer, within ten days after accepting any\nother employment, of the identity of the Employee’s employer. The Buyer or the Employer may notify such employer that the Employee is bound by\nthis Agreement and, at the Employer’s election, furnish such employer with a copy of this Agreement or relevant portions thereof.\n9. GENERAL PROVISIONS\n9.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY\nThe Employee acknowledges that the injury that would be suffered by the Employer as a result of a breach of the provisions of this\nAgreement (including but not limited to any provision of Sections 7 and 8) would be irreparable and that an award of monetary damages to the\nEmployer for such a breach would be an inadequate remedy. Consequently, the Employer will have the right, in addition to any other rights it may\nhave, to obtain injunctive relief to restrain any breach or threatened breach or otherwise to specifically enforce any provision of this Agreement and\nthe Employer will not be obligated to post bond or other security in seeking such relief. Without limiting the Employer’s rights under this Section 9\nor any other remedies of the Employer, if the Employee breaches any of the provisions of Section 7 or 8, the Employer will have the right to cease\nmaking any payments otherwise due to the Employee under this Agreement.\n9.2 COVENANTS OF SECTIONS 7 AND 8§ ARE ESSENTIAL AND INDEPENDENT COVENANTS\nThe covenants by the Employee in Sections 7 and 8 are essential elements of this Agreement, and without the Employee’s agreement to\ncomply with such covenants, the Employer would not have entered into this Agreement or employed or continued the employment of the Employee.\nThe Employer and the Employee have independently consulted their respective counsel and have been advised in all respects concerning the\nreasonableness and propriety of such covenants, with specific regard to the nature of the business conducted by the Employer.\nThe Employee’s covenants in Sections 7 and 8 are independent covenants and the existence of any claim by the Employee against the\nEmployer under this Agreement or otherwise, or against the Buyer, will not excuse the Employee’s breach of any covenant in Section 7 or 8.\n10\nIf the Employee’s employment hereunder expires or is terminated, this Agreement will continue in full force and effect as is necessary or\nappropriate to enforce the covenants and agreements of the Employee in Sections 7 and 8.\n9.3 REPRESENTATIONS AND WARRANTIES BY THE EMPLOYEE\nThe Employee represents and warrants to the Employer that the execution and delivery by the Employee of this Agreement do not, and\nthe performance by the Employee of the Employee’s obligations hereunder will not, with or without the giving of notice or the passage of time, or\nboth: (a) violate any judgment, writ, injunction, or order of any court, arbitrator, or governmental agency applicable to the Employee; or (b) conflict\nwith, result in the breach of any provisions of or the termination of, or constitute a default under, any agreement to which the Employee is a party or\nby which the Employee is or may be bound.\n9.4 OBLIGATIONS CONTINGENT ON PERFORMANCE\nThe obligations of the Employer hereunder, including its obligations to pay the compensation provided for herein, are contingent upon\nthe Employee’s performance of all the Employee’s obligations hereunder.\n9.5 WAIVER\nThe rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by either\nparty in exercising any right, power, or privilege under this Agreement will operate as a waiver of such right, power, or privilege, and no single or\npartial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of\nany other right, power, or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be\ndischarged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no\nwaiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one\nparty will be deemed to be a waiver of any obligation of that party or of the right of the party giving the notice or demand to take further action\nwithout notice or demand as provided in this Agreement.\n9.6 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED\nThis Agreement will inure to the benefit of, and will be binding upon, the parties hereto and their respective successors, assigns, heirs,\nand legal representatives, including any entity with which the Employer may merge or consolidate or to which all or substantially all of its assets\nmay be transferred. The duties and covenants of the Employee under this Agreement, being personal, may not be delegated.\n9.7 NOTICES\nAll notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly\ngiven when (a) delivered by hand (with written confirmation of receipt), (b) sent by facsimile (with written confirmation of receipt),\n11\nprovided that a copy is mailed by registered mail, return receipt requested, or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to any other addresses and facsimile numbers as a party may designate by notice to the other parties): If to Employer:\nWith a copy to:\nIf to the Employee:\nWith a copy to:\n9.8 INDEMNIFICATION OF EMPL.OYEE Hub City Industries, L.L.C.\n500 Dover Blvd., Suite 100\nLafayette, LA 70503\nAttention: Earl Blackwell\nFrank S. Slavich, III\nBabineaux, Poche, Anthony & Slavich, LLC\n1201 Camellia Blvd., Suite 300\nLafayette, LA 70508\nJohn Egle\n112 East Peck Blvd.\nLafayette, LA 70508\nCharles Rush, Esq.\n202 Magnate Drive\nLafayette, LA 70508\nThe Employer will defend, indemnify, and hold harmless Employee if Employee is made a party to a proceeding because he is a party to this Agreement against liability incurred in the proceeding, if he: (a) conducted himself in good faith; (b) Reasonably believed that his conduct was in or at least not opposed to the Company’s best interest; and (c) In the case of any criminal proceeding, had no reasonable cause to believe his conduct was unlawful. 9.9 ENTIRE AGREEMENT: AMENDMENTS This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, oral or written, between the parties hereto with respect to the subject matter hereof. This Agreement may not be amended orally, but only by an agreement in writing signed by the parties this Agreement. 12\n9.10 GOVERNING LAW\nThis Agreement will be governed by the laws of the State of Louisiana without regard to conflicts of laws principles.\n9.11 JURISDICTION\nAny action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement will be brought\nagainst either of the parties in the courts of the State of Louisiana, Parish of Lafayette, or if it has or can acquire jurisdiction, in the United States\nDistrict Court for the Western District of Louisiana, and each of the parties consents to the jurisdiction of such courts (and of the appropriate\nappellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding referred to in\nthe preceding sentence may be served on either party anywhere in the world.\n9.12 SECTION HEADINGS, CONSTRUCTION\nThe headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All\nreferences to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in\nthis Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word\n“including” does not limit the preceding words or terms.\n9.13 SEVERABILITY\nIf any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this\nAgreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in\nfull force and effect to the extent not held invalid or unenforceable.\n9.14 COUNTERPARTS\nThis Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement\nand all of which, when taken together, will be deemed to constitute one and the same agreement.\n9.15 ATTORNEY’S FEES\nIn the event that there is any controversy or claim arising out of or relating to this Agreement, or to the interpretation, breach or\nenforcement thereof, and any action or proceeding is commenced to enforce the provisions of this Agreement, the prevailing party shall be entitled to\na reasonable attorney’s fee, costs and expenses.\n9.16 JOINT DRAFTING\nThe parties have participated jointly in negotiating and drafting this Agreement. If a question of interpretation arises, this Agreement\nshall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of\nthe authorship of any provision of this Agreement.\n13\n9.17 WAIVE OF JURY TRIAL\nTHE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO\nTHIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS, WHETHER NOW EXISTING OR HEREAFTER ARISING,\nAND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY\nOF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR\nAGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY PROCEEDING WHATSOEVER\nBETWEEN THEM RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS SHALL INSTEAD BE\nTRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.\n9.18 TERMINATION OF PRIOR EMPLOYEMENT AGREEMENT\nThis Agreement hereby supersedes and replaces that certain Amended and Restated Employment, Non-Disclosure, and Non-Compete\nAgreement dated January 15, 2009 (the “Original Agreement”). The parties acknowledge and agree that the Original Agreement is terminated as of\nthe Effective Date of this Agreement.\nIN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date above first written above.\nEMPLOYER: HUB CITY INDUSTRIES, L.L.C\nBy: /s/ Michel B. Moreno\nName: Michel B. Moreno\nTitle: Managing Manger\nEMPLOYEE: /s/ John M. Egle\nJOHN M. EGLE\n14\nAcadia\nAllen\nAscension\nAssumption\nAvoyelles\nBeauregard\nBienville\nBossier\nCaddo\nCalcasieu\nCaldwell\nCameron\nCatahoula\nClaiborne\nConcordia\nDeSoto\nEast Baton Rouge\nEast Carroll\nEast Feliciana\nEvangeline\nFranklin\nGrant\nIberia\nIberville\nJackson\nJefferson\nJefferson Davis\nLafayette\nLafourche\nLaSalle\nLincoln\nLivingston\nEXHIBIT A\nLOUISIANA PARISHES\n15\nMadison\nMorehouse\nNatchitoches\nOrleans\nOuachita\nPlaquemines\nPointe Coupee\nRapides\nRed River\nRichland\nSabine\nSt. Bernard\nSt. Charles\nSt. Helena\nSt. James\nSt. John the Baptist\nSt. Landry\nSt. Martin\nSt. Mary\nSt. Tammany\nTangipahoa\nTensas\nTerrebonne\nUnion\nVermillion\nVernon\nWashington\nWebster\nWest Baton Rouge\nWest Carroll\nWest Feliciana\nWinn	EX-10.5 15 d349756dex105.htn SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT - JOHN\nM. EGLE\nExhibit 10.5\nSECOND AMENDED & RESTATED EMPLOYMENT,\nNON-DISCLOSURE, AND NON-COMPETE AGREEMENT\nThis Second Amended & Restated Employment, Non-Disclosure, and Non-Compete Agreement (this "AGREEMENT") is made effective as of\nMay 1, 2011, by Hub City Industries, L.L.C., a Louisiana liability company (the "EMPLOYER"), and John M. Egle, an individual resident in\nLafayette, Louisiana (the "EMPLOYEE").\nRECITALS\nThe Employer desires the Employee's continued employment with the Employer, and the Employee wishes to accept such continued\nemployment, upon the terms and conditions set forth in this Agreement.\nAGREEMENT\nThe parties, intending to be legally bound, agree as follows:\n1. DEFINITIONS\nFor the purposes of this Agreement, the following terms have the meanings specified or referred to in this Section 1.\n"AGREEMENT"-th Employment, Non-Disclosure, and Non-Competition Agreement, as amended from time to time.\n"BAsIC COMPENSATION"-Salary and Benefits.\n"BENEFITS"-aS defined in Section 3.1(b).\n"CONFIDENTIAL INFORMATION"- and all:\n(a) trade secrets concerning the business and affairs of the Employer, product specifications, data, know-how, formulae, compositions,\nprocesses, designs, sketches, photographs, graphs, drawings, samples, inventions and ideas, past, current, and planned research and\ndevelopment, current and planned manufacturing or distribution methods and processes, customer lists, current and anticipated customer\nrequirements, price lists, market studies, business plans, computer software and programs (including object code and source code), computer\nsoftware and database technologies, systems, structures, and architectures (and related formulae, compositions, processes, improvements,\ndevices, know-how, inventions, discoveries, concepts, ideas, designs, methods and information) and any other information, however\ndocumented, that is a trade secret within the meaning of trade secret laws of the State of Louisiana;\n(b) information concerning the business and affairs of the Employer (which includes historical financial statements, financial projections\nand budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, personnel\ntraining and techniques and materials); and\n1\n(c) notes, analysis, compilations, studies, summaries, and other material prepared by or for the Employer containing or based, in whole or\nin part, on any information included in the foregoing.\n"DISABILITY"- defined in Section 6.2.\n"EFFECTIVE DATe" date stated in the first paragraph of the Agreement.\n"EMPLOYMENT PERIOD" term of the Executive's employment under this Agreement.\n"FISCAL YEAR" -the Employer's fiscal year, as it exists on the Effective Date or as changed from time to time.\n"FOR CAUsE" defined in Section 6.3.\n"PERSON"-a individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint\nventure, estate, trust, association, organization, or governmental body.\n"POST-EMPLOYMENT PERIOD"- defined in Section 8.2.\n"PROPRIETARY ITEMS" -as defined in Section 7.2(a)(iv).\n"SALARY"- defined in Section 3.1(a).\n2.\nEMPLOYMENT TERMS AND DUTIES\n2.1 EMPLOYMENT\nThe Employer hereby employs the Employee, and the Employee hereby accepts employment by the Employer, upon the terms and conditions\nset forth in this Agreement.\n2.2 TERM\nSubject to the provisions of Section 6, the term of the Employee's employment under this Agreement will be 2 years, beginning on the 1st day\nof May 2011 and ending on April 30, 2012. The 2nd year of the Agreement is conditioned upon the Employee booking International sales in excess\nof one million ($1,000,000) dollars, within the 1st year of the Agreement Upon agreement of the Employer and Employee, the terms of this\nAgreement may be extended beyond the initial term until terminated for cause or until terminated as otherwise provided in this Agreement.\n2\n2.3 DUTIES\nThe Employee will initially serve as the Special Assistant to Michel Moreno, and may sometimes also be referred to as the "Market Advisor"\nof the Employer. The Employee will use his best efforts to promote the success of the Employer's business, and will cooperate fully with the other\nemployees in the advancement of the best interests of Employer. Employee will expand the business opportunities of the Employer, including, but\nnot\nlimited to, increasing revenues and earnings of the Employer. Nothing in this Section 2.3, however, will prevent the Employee from engaging\nin\nadditional activities in connection with personal investments and community affairs that are not inconsistent with Employee's duties under this\nAgreement.\n3. COMPENSATION\n3.1 BASIC COMPENSATION\n(a) Salary.. The Employee will be paid an annual salary of $244,000.00, subject to adjustment as provided below (the "SALARY"), which\nwill be payable in equal periodic installments according to the Employer's customary payroll practices, but no less frequently than monthly.\nThe Salary will be reviewed by the Michel Moreno not less frequently than annually, and may not be adjusted downward.\n(b) Benefits. The Employee will, during the Employment Period, be permitted to participate in the pension, profit sharing, bonus, life\ninsurance, hospitalization, major medical, and other employee benefit plans of the Employer that may be in effect from time to time, to the\nextent the Employee is eligible under the terms of those plans (collectively, the "BENEFITS"). The Employer shall not by reason of this\nSection 3 be obligated to institute, maintain, or refrain from changing, amending, or discontinuing, any employee benefit program or plan,\nso\nlong as such actions are similarly applicable to covered employees generally. The Employer will pay 100% of Employee's group health and\ndisability insurance premiums as maintained by the Employer.\n(c) The Employer may withhold from the Salary, incentive compensation, and any other compensation, benefits, or amounts payable\nunder this Agreement all federal, state, city, or other taxes as may be required pursuant to any law or governmental regulation or ruling.\n3.2 INCENTIVE COMPENSATION\n(a) The Employee will be entitled to receive 3% to 5%, (percentage to be jointly determined by Employer and Employee), of revenue\ndirectly generated from international sales by Employee for the Company. Gross Revenue as used herein shall be based upon billings made by\nthe Company and compensation predicated thereon shall be paid irrespective of the date of payment to the Company. Employee shall receive\ncompensation upon revenue generated during the term of this Agreement but billed thereafter. Cash and trade discounts shall not be deducted\nfrom the gross selling price.\n3\n(b) Examination of books-Employee shall have the right personally, or through an agent, but at his own expense, to examine the books\nand records of the Company for the purpose of determining the gross revenue.\n4.\nFACILITIES AND EXPENSES\n4.1 GENERAL\nThe Employee will work at his preferred location and will be directed by his efforts alone. In accordance with the Employer's\nemployment policies, Employee will be reimbursed reasonable expenses incurred by the Employee, in appropriate entertainment activities, and for\nbusiness promotional expenses. The Employee must file expense reports with respect to such expenses in accordance with the Employer's policies\nand approved by Michel Moreno.\n4.2 AUTOMOBILE\nThe Employer will pay the Employee an automobile allowance of $1,300.00 per month. The Employee will own his own automobile,\nand maintain and insure it at his own expense, for his business use in connection with his employment under this Agreement. The Employee will at\nhis own expense maintain liability insurance on any automobile used in connection with the Employer's business, including excess liability\n(umbrella) insurance coverage in an amount not less than $1,000,000 per occurrence, with underlying insurance coverage as required by such excess\nliability insurance policy, and the Employee will furnish proof of such insurance to the Employer as requested by the Employer. The Employee will\nbe solely responsible for all automobile expenses, except for gas and oil expenses which will, with written proof of such expenses, be reimbursed to\nthe Employee by the Employer. All such oil and gas expenses submitted for reimbursement must be allocated by Employee between Employer, and\nany of Employer's affiliated Employee may be employed by, and Employee will be responsible for all taxes applicable to the reimbursement of these\noil and gas expenses.\n5.\nVACATIONS AND HOLIDAYS\nThe Employee will be entitled to four (4) weeks' paid vacation each Fiscal Year to be taken at times selected by him, with the prior notice\nto\nthe Company's Members, and in accordance with the vacation policies of the Employer in effect for its Employee officers from time to time. The\nEmployee will also be entitled to the paid holidays set forth in the Employer's policies.\n6. TERMINATION\n6.1 EVENTS OF TERMINATION\nThe Employment Period, the Employee's Basic Compensation, and any and all other rights of the Employee under this Agreement or\notherwise as an employee of the Employer will terminate (except as otherwise provided in this Section 6):\n(a) upon the death of the Employee; or\n4\n(b)\nupon the disability of the Employee (as defined in Section 6.2) immediately upon notice from either party to the other;\n(c) for cause (as defined in Section 6.3), immediately upon notice from the Employer to the Employee, or at such later time as such\nnotice may specify;\n(d) by Employee without cause, immediately upon notice from Employee or at Employee's later time as such notice may specify.\n6.2 DEFINITION OF DISABILITY\nFor purposes of Section 6.1, the Employee will be deemed to have a "disability" if, for physical or mental reasons, the Employee is\nunable to perform the essential functions of the Employee's duties under this Agreement for 120 consecutive days, or 180 days during any twelve-\nmonth period, as determined in accordance with this Section 6.2. The disability of the Employee will be determined by a medical doctor selected\nby\nwritten agreement of the Employer and the Employee upon the request of either party by notice to the other. If the Employer and the Employee\ncannot agree on the selection of a medical doctor, each of them will select a medical doctor and the two medical doctors will select a third medical\ndoctor who will determine whether the Employee has a disability. The determination of the medical doctor selected under this Section 6.2 will\nbe\nbinding\non\nboth\nparties.\nThe\nEmployee\nmust\nsubmit\nto\na\nreasonable\nnumber\nof\nexaminations\nby\nthe\nmedical\ndoctor\nmaking\nthe\ndetermination\nof\ndisability under this Section 6.2, and the Employee hereby authorizes the disclosure and release to the Employer of such determination and all\nsupporting medical records. If the Employee is not legally competent, the Employee's legal guardian or duly authorized attorney-in-fact will act in\nthe\nEmployee's stead, under this Section 6.2, for the purposes of submitting the Employee to the examinations, and providing the authorization of\ndisclosure, required under this Section 6.2.\n6.3 DEFINITION OF "FOR CAUSE"\nFor purposes of Section 6.1, the phrase "for cause" means: (a) the Employee's material breach of this Agreement; (b) the Employee's material\nfailure to adhere to any written Employer policy; (c) the appropriation (or attempted appropriation) of a material business opportunity of the\nEmployer, including attempting to secure or securing any personal profit in connection with any transaction entered into on behalf of the Employer;\n(d) the misappropriation (or attempted misappropriation) of any of the Employer's funds, property, or opportunity; (e) the conviction of, the\nindictment for (or its procedural equivalent), or the entering of a guilty plea or plea of no contest with respect to a felony punishable by\nimprisonment; (f) Employee's gross negligence in the performance of the duties and services required of the Employee pursuant to this Agreement\nthat has a material adverse effect on the Employer or any affiliate; or (g) it is found that a material representation or warranty made by the Employee\nin this Agreement was untrue at the time such representation or warranty was made.\n6.4 TERMINATION PAY\nEffective upon the termination of this Agreement, the Employer will be obligated to pay the Employee (or, in the event of his death, his\ndesignated beneficiary as defined below) only such compensation as is provided in this Section 6.4, and in lieu of all other amounts and in\n5\nsettlement and complete release of all claims the Employee may have against the Employer. For purposes of this Section 6.4, the Employee's\ndesignated beneficiary will be such individual beneficiary or trust, located at such address, as the Employee may designate by notice to the\nEmployer. from time to time or, if the Employee fails to give notice to the Employer of such a beneficiary, the Employee's estate. Notwithstanding\nthe preceding sentence, the Employer will have no duty, in any circumstances, to attempt to open an estate on behalf of the Employee, to determine\nwhether any beneficiary designated by the Employee is alive or to ascertain the address of any such beneficiary, to determine the existence of any\ntrust, to determine whether any person or entity purporting to act as the Employee's personal representative (or the trustee of a trust established by\nthe Employee) is duly authorized to act in that capacity, or to locate or attempt to locate any beneficiary, personal representative, or trustee.\n(a) Termination by the Employer for Cause. If the Employer terminates this Agreement for cause, the Employee will be entitled to\nreceive his Salary only through the date this Agreement is effective.\n(b) Termination upon Disability. If this Agreement is terminated by either party as a result of the Employee's disability, as determined\nunder Section 6.2, the Employer will continue to pay the Employee his Salary for the period of two months following this notice of termination\nless any disability insurance benefits received by Employee under the disability insurance coverage furnished by Employer.\n(c) Termination upon Death. If this Agreement is terminated because of the Employee's death, the Employee will be entitled to receive\nhis Salary through the end of the calendar month in which his death occurs and one additional month.\n(d) Termination without cause. If this Agreement is terminated because without cause, the Employee will be entitled to receive his Salary\nas it becomes due for the remaining term of this Agreement. If the Employee terminates this Agreement without cause, Employee will be\nentitled to his Salary only through the date such termination is effective.\n(e) If the Employee terminates this Agreement, Employee will be entitled to his Salary only through the date such termination is\neffective.\n(f) Benefits. The Employee's accrual of, or participation in plans providing for, the Benefits will cease at the effective date of the\ntermination of this Agreement, and the Employee will be entitled to accrued Benefits pursuant to such plans only as provided in such plans.\nExcluding a termination without cause as provided in Section 6.4(d) and/or a resignation of employment by Employee, the Employee will\nnot\nreceive, as part of his termination pay pursuant to this Section 6, any payment or other compensation for any vacation, holiday, sick leave, or\nother leave unused on the date the notice of termination is given under this Agreement.\n6\n7.\nNON-DISCLOSURE COVENANT\n7.1\nACKNOWLEDGMENTS BY THE EMPLOYEE\nThe Employee acknowledges that (a) during the Employment Period and as a part of his employment, the Employee will be afforded\naccess to Confidential Information; (b) public disclosure of such Confidential Information could have an adverse effect on the Employer and its\nbusiness; (c) because the Employee possesses substantial technical expertise and skill with respect to the Employer's business; and (d) the provisions\nof this Section 7 are reasonable and necessary to prevent the improper use or disclosure of Confidential Information.\n7.2 AGREEMENTS OF THE EMPLOYEE\nIn consideration of the compensation and benefits to be paid or provided to the Employee by the Employer under this Agreement, the\nEmployee covenants as follows:\nConfidentiality.\n(i) During and for 2 years following the Employment Period, the Employee will hold in confidence the Confidential Information\nand will not disclose it to any person except with the specific prior written consent of the Employer or except as otherwise expressly\npermitted by the terms of this Agreement.\n(ii) Any trade secrets of the Employer will be entitled to all of the protections and benefits under the trade secret law of the States\nof Louisiana and any other applicable law. If any information that the Employer deems to be a trade secret is found by a court of\ncompetent jurisdiction not to be a trade secret for purposes of this Agreement, such information will, nevertheless, be considered\nConfidential Information for purposes of this Agreement. The Employee hereby waives any requirement that the Employer submit proof\nof the economic value of any trade secret or post a bond or other security.\n(iii) None of the foregoing obligations and restrictions applies to any part of the Confidential information that the Employee\ndemonstrates was or became generally available to the public other than as a result of a disclosure by the Employee.\n(iv) The Employee will not remove from the Employer's premises (except to the extent such removal is necessary for purposes of\nthe performance of the Employee's duties at home or while traveling, or except as otherwise specifically authorized by the Employer)\nany document, record, notebook, plan, model, component, device, or computer software or code, whether embodied in a disk or in any\nother form (collectively, the "PROPRIETARY ITEMS"). The Employee recognizes that, as between the Employer and the Employee, all\nof the Proprietary items, whether or not developed by the Employee, are the exclusive property of the Employer. Upon termination of\nthis Agreement by either party, or upon the request of the Employer during the Employment Period, the Employee will return to the\nEmployer all of the Proprietary items in the Employee's possession or subject to the Employee's control, and the Employee shall not\nretain any copies, abstracts, sketches, or other physical or electronic embodiment of any of the Proprietary items.\n7\n(v) All information, ideas, concepts, improvements, discoveries, and inventions, whether patentable or not, which are conceived,\nmade, developed or acquired by Employee, individually or in conjunction with others, during Employee's employment by the Employer\n(whether' during business hours or otherwise and whether on the Employer's premises or otherwise) which relate to the Employer's\nbusiness, products or services (including, without limitation, all such information relating to corporate opportunities, research, financial\nand sales data, pricing and trading terms, evaluations, opinions, interpretations, acquisition prospects, the identity of customers or their\nrequirements, the identity of key contacts within the customer's organizations or within the organization of acquisition prospects, or\nmarketing and merchandising techniques, prospective names, and marks), and all writings or materials of any type embodying any of\nsuch items, will be the sole and exclusive property of the Employer.\n7.3 DISPUTES OR CONTROVERSIES\nThe Employee recognizes that should a dispute or controversy arising from or relating to this Agreement be submitted for adjudication to\nany court, arbitration panel, or other third party, the preservation of the secrecy of Confidential information may be jeopardized All pleadings,\ndocuments, testimony, and records relating to any such adjudication will be maintained in secrecy and will be available for inspection by the\nEmployer, the Employee, and their respective attorneys and experts, who will agree, in advance and in writing, to receive and maintain all such\ninformation in secrecy, except as may be limited by them in writing.\n8.\nNON-COMPETITION AND NON-INTERFERENCE\n8.1\nACKNOWLEDGMENTS BY THE EMPLOYEE\nThe Employee acknowledges that: (a) the services to be performed by him under this Agreement are of a special, unique, unusual,\nextraordinary, and intellectual character; (b) the Employer's business is regional in scope and its products are marketed throughout the States of\nLouisiana, Mississippi, Texas and offshore in the Gulf of Mexico; (c) the Employer competes with other businesses that are or could be located in\nany part of the States of Louisiana, Mississippi, or Texas and (d) the provisions of this Section 8 are reasonable and necessary to protect the\nEmployer's business.\n8.2 COVENANTS OF THE EMPLOYEE\nIn consideration of the acknowledgments by the Employee, and in consideration of the compensation and benefits to be paid or provided\nto the Employee by the Employer, the Employee covenants that he will not, directly or indirectly:\n8\n(a) during the Employment Period, except in the course of his employment hereunder, and during the Post-Employment Period, engage\nor invest in, own, manage, operate, finance, control, or participate in the ownership, management, operation, financing, or control of,\nbe\nemployed by, associated with, or in any manner connected with, lend the Employee's name or any similar name to, lend Employee's credit to\nor render services or advice to, any business that competes in whole or in part with the business of the Employer anywhere the Employer\nconducts business, and specifically within the States of Mississippi, Texas, the parishes of Louisiana described in Exhibit A attached hereto\nand offshore in the Gulf of Mexico; provided, however, that the Employee may purchase or otherwise acquire up to (but not more than) five\npercent of any class of securities of any enterprise (but without otherwise participating in the activities of such enterprise) if such securities are\nlisted on any national or regional securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934;\n(b) whether for the Employee's own account or for the account of any other person, at any time during the Employment Period and the\nPost-Employment Period, solicit business of the same or similar type being carried on by the Employer, from any person known by the\nEmployee to be a customer of the Employer, whether or not the Employee had personal contact with such person during and by reason of the\nEmployee's employment with the Employer;\n(c) whether for the Employee's own account or the account of any other person (i) at any time during the Employment Period and the\nPost-Employment Period, solicit, employ, or otherwise engage as an employee, independent contractor, or otherwise, any person who is or was\nan employee of the Employer at any time during the Employment Period or in any manner induce or attempt to induce any employee of the\nEmployer to terminate his employment with the Employer; or (ii) at any time during the Employment Period and the Post-Employment Period\ninterfere with the Employer's relationship with any person, including any person who at any time during the Employment Period was an\nemployee, contractor, supplier, or customer of the Employer; or\n(d) at any time during or after the Employment Period, disparage the Employer or any of its shareholders, directors, officers, employees,\nor agents.\nFor purposes of this Section 8.2, the term "Post-Employment Period" means the two year period beginning on the date of termination of the\nEmployee's employment with the Employer.\nEmployee acknowledges and agrees that Employee, while employed by the Employer, owes a fiduciary duty of loyalty, fidelity and allegiance\nto act at all times in the best interest of the Employer, to do no act which would intentionally injure the Employer's business, interests, or reputation.\nIn keeping with Employee's fiduciary duties owed to the Employer, Employee agrees that Employee will not knowingly become involved in a\nconflict of interest with the Employer or its affiliates, or upon discovery thereof, allow such a conflict to continue.\n9\nIf any covenant in this Section 8.2 is held to be unreasonable, arbitrary, or against public policy, such covenant will be considered to be\ndivisible with respect to scope, time, and geographic area, and such lesser scope, time, or geographic area, or all of them, as a court of competent\njurisdiction may determine to be reasonable, not arbitrary, and not against public policy, will be effective, binding, and enforceable against the\nEmployee. Nevertheless, if any of the aforesaid restrictions are found by a court having jurisdiction to be unreasonable or overly broad as to\ngeographic area or time, or otherwise unenforceable, the parties intend for the restrictions herein set forth to be modified by such courts so as to be\nreasonable and enforceable and, as so modified to be fully enforced.\nThe Employee will, while the covenant under this Section 8.2 is in effect, give notice to the Employer, within ten days after accepting any\nother employment, of the identity of the Employee's employer. The Buyer or the Employer may notify such employer that the Employee is bound by\nthis Agreement and, at the Employer's election, furnish such employer with a copy of this Agreement or relevant portions thereof.\n9.\nGENERAL PROVISIONS\n9.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY\nThe Employee acknowledges that the injury that would be suffered by the Employer as a result of a breach of the provisions of this\nAgreement (including but not limited to any provision of Sections 7 and 8) would be irreparable and that an award of monetary damages to the\nEmployer for such a breach would be an inadequate remedy. Consequently, the Employer will have the right, in addition to any other rights it may\nhave, to obtain injunctive relief to restrain any breach or threatened breach or otherwise to specifically enforce any provision of this Agreement and\nthe Employer will not be obligated to post bond or other security in seeking such relief. Without limiting the Employer's rights under this Section 9\nor any other remedies of the Employer, if the Employee breaches any of the provisions of Section 7 or 8, the Employer will have the right to cease\nmaking any payments otherwise due to the Employee under this Agreement.\n9.2 COVENANTS OF SECTIONS 7 AND 8 ARE ESSENTIAL AND INDEPENDENT COVENANTS\nThe covenants by the Employee in Sections 7 and 8 are essential elements of this Agreement, and without the Employee's agreement to\ncomply with such covenants, the Employer would not have entered into this Agreement or employed or continued the employment of the Employee.\nThe Employer and the Employee have independently consulted their respective counsel and have been advised in all respects concerning the\nreasonableness and propriety of such covenants, with specific regard to the nature of the business conducted by the Employer.\nThe Employee's covenants in Sections 7 and 8 are independent covenants and the existence of any claim by the Employee against the\nEmployer under this Agreement or otherwise, or against the Buyer, will not excuse the Employee's breach of any covenant in Section 7 or 8.\n10\nIf the Employee's employment hereunder expires or is terminated, this Agreement will continue in full force and effect as is necessary or\nappropriate to enforce the covenants and agreements of the Employee in Sections 7 and 8.\n9.3 REPRESENTATIONS AND WARRANTIES BY THE EMPLOYEE\nThe Employee represents and warrants to the Employer that the execution and delivery by the Employee of this Agreement do not, and\nthe performance by the Employee of the Employee's obligations hereunder will not, with or without the giving of notice or the passage of time, or\nboth: (a) violate any judgment, writ, injunction, or order of any court, arbitrator, or governmental agency applicable to the Employee; or (b) conflict\nwith, result in the breach of any provisions of or the termination of, or constitute a default under, any agreement to which the Employee is a party or\nby which the Employee is or may be bound.\n9.4 OBLIGATIONS CONTINGENT ON PERFORMANCE\nThe obligations of the Employer hereunder, including its obligations to pay the compensation provided for herein, are contingent upon\nthe Employee's performance of all the Employee's obligations hereunder.\n9.5 WAIVER\nThe rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by either\nparty in exercising any right, power, or privilege under this Agreement will operate as a waiver of such right, power, or privilege, and no single or\npartial\nexercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of\nany other right, power, or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be\ndischarged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no\nwaiver\nthat\nmay be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one\nparty will be deemed to be a waiver of any obligation of that party or of the right of the party giving the notice or demand to take further action\nwithout notice or demand as provided in this Agreement.\n9.6 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED\nThis Agreement will inure to the benefit of, and will be binding upon, the parties hereto and their respective successors, assigns, heirs,\nand legal representatives, including any entity with which the Employer may merge or consolidate or to which all or substantially all of its assets\nmay be transferred. The duties and covenants of the Employee under this Agreement, being personal, may not be delegated.\n9.7 NOTICES\nAll notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly\ngiven when (a) delivered by hand (with written confirmation of receipt), (b) sent by facsimile (with written confirmation of receipt),\n11\nprovided that a copy is mailed by registered mail, return receipt requested, or (c) when received by the addressee, if sent by a nationally recognized\novernight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to any other\naddresses and facsimile numbers as a party may designate by notice to the other parties):\nIf to Employer:\nHub City Industries, L.L.C.\n500 Dover Blvd., Suite 100\nLafayette, LA 70503\nAttention: Earl Blackwell\nWith a copy to:\nFrank S. Slavich, III\nBabineaux, Poche, Anthony & Slavich, LLC\n1201 Camellia Blvd., Suite 300\nLafayette, LA 70508\nIf to the Employee:\nJohn Egle\n112 East Peck Blvd.\nLafayette, LA 70508\nWith a copy to:\nCharles Rush, Esq.\n202 Magnate Drive\nLafayette, LA 70508\n9.8 INDEMNIFICATION OF EMPLOYEE\nThe Employer will defend, indemnify, and hold harmless Employee if Employee is made a party to a proceeding because he is a party to\nthis Agreement against liability incurred in the proceeding, if he:\n(a) conducted himself in good faith;\n(b) Reasonably believed that his conduct was in or at least not opposed to the Company's best interest; and\n(c) In the case of any criminal proceeding, had no reasonable cause to believe his conduct was unlawful.\n9.9 ENTIRE AGREEMENT: AMENDMENTS\nThis Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersede all prior\nagreements and understandings, oral or written, between the parties hereto with respect to the subject matter hereof. This Agreement may not be\namended orally, but only by an agreement in writing signed by the parties this Agreement.\n12\n9.10 GOVERNING LAW\nThis Agreement will be governed by the laws of the State of Louisiana without regard to conflicts of laws principles.\n9.11 JURISDICTION\nAny action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement will be brought\nagainst either of the parties in the courts of the State of Louisiana, Parish of Lafayette, or if it has or can acquire jurisdiction, in the United States\nDistrict Court for the Western District of Louisiana, and each of the parties consents to the jurisdiction of such courts (and of the appropriate\nappellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding referred to in\nthe preceding sentence may be served on either party anywhere in the world.\n9.12 SECTION HEADINGS, CONSTRUCTION\nThe headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All\nreferences to "Section" or "Sections" refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in\nthis Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word\n"including" does not limit the preceding words or terms.\n9.13 SEVERABILITY\nIf any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this\nAgreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in\nfull force and effect to the extent not held invalid or unenforceable.\n9.14 COUNTERPARTS\nThis Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement\nand all of which, when taken together, will be deemed to constitute one and the same agreement.\n9.15 ATTORNEY'S FEES\nIn the event that there is any controversy or claim arising out of or relating to this Agreement, or to the interpretation, breach or\nenforcement thereof, and any action or proceeding is commenced to enforce the provisions of this Agreement, the prevailing party shall be entitled to\na reasonable attorney's fee, costs and expenses.\n9.16 JOINT DRAFTING\nThe parties have participated jointly in negotiating and drafting this Agreement. If a question of interpretation arises, this Agreement\nshall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of\nthe authorship of any provision of this Agreement.\n13\n9.17 WAIVE OF JURY TRIAL\nTHE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO\nTHIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS, WHETHER NOW EXISTING OR HEREAFTER ARISING,\nAND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY\nOF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR\nAGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY PROCEEDING WHATSOEVER\nBETWEEN THEM RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS SHALL INSTEAD BE\nTRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.\n9.18 TERMINATION OF PRIOR EMPLOYEMENT AGREEMENT\nThis Agreement hereby supersedes and replaces that certain Amended and Restated Employment, Non-Disclosure, and Non-Compete\nAgreement dated January 15, 2009 (the "Original Agreement"). The parties acknowledge and agree that the Original Agreement is terminated as of\nthe Effective Date of this Agreement.\nIN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date above first written above.\nEMPLOYER:\nHUB CITY INDUSTRIES, L.L.C\nBy:\n/s/ Michel B. Moreno\nName: Michel B. Moreno\nTitle: Managing Manger\nEMPLOYEE:\n/s/ John M. Egle\nJOHN M. EGLE\n14\nEXHIBIT A\nLOUISIANA PARISHES\nAcadia\nMadison\nAllen\nMorehouse\nAscension\nNatchitoches\nAssumption\nOrleans\nAvoyelles\nOuachita\nBeauregard\nPlaquemines\nBienville\nPointe Coupee\nBossier\nRapides\nCaddo\nRed River\nCalcasieu\nRichland\nCaldwell\nSabine\nCameron\nSt. Bernard\nCatahoula\nSt. Charles\nClaiborne\nSt. Helena\nConcordia\nSt. James\nDeSoto\nSt. John the Baptist\nEast Baton Rouge\nSt. Landry\nEast Carroll\nSt. Martin\nEast Feliciana\nSt. Mary\nEvangeline\nSt. Tammany\nFranklin\nTangipahoa\nGrant\nTensas\nIberia\nTerrebonne\nIberville\nUnion\nJackson\nVermillion\nJefferson\nVernon\nJefferson Davis\nWashington\nLafayette\nWebster\nLafourche\nWest Baton Rouge\nLaSalle\nWest Carroll\nLincoln\nWest Feliciana\nLivingston\nWinn\n15	EX-10.5 15 d349756dex105.htm SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT - JOHN\nM. EGLE\nExhibit 10.5\nSECOND AMENDED & RESTATED EMPLOYMENT,\nNON-DISCLOSURE, AND NON-COMPETE AGREEMENT\nThis Second Amended & Restated Employment, Non-Disclosure, and Non-Compete Agreement (this “AGREEMENT”) is made effective as of\nMay 1, 2011, by Hub City Industries, L.L.C ., a Louisiana liability company (the “EMPLOYER”), and John M. Egle, an individual resident in\nLafayette, Louisiana (the “EMPLOYEE”).\nRECITALS\nThe Employer desires the Employee’s continued employment with the Employer, and the Employee wishes to accept such continued\nemployment, upon the terms and conditions set forth in this Agreement.\nAGREEMENT\nThe parties, intending to be legally bound, agree as follows:\n1. DEFINITIONS\nFor the purposes of this Agreement, the following terms have the meanings specified or referred to in this Section 1.\n“AGREEMENT”—this Employment, Non-Disclosure, and Non-Competition Agreement, as amended from time to time.\n“BASIC COMPENSATION”—Salary and Benefits.\n“BENEFITS”—as defined in Section 3.1(b).\n“CONFIDENTIAL INFORMATION”—any and all:\n(a) trade secrets concerning the business and affairs of the Employer, product specifications, data, know-how, formulae, compositions,\nprocesses, designs, sketches, photographs, graphs, drawings, samples, inventions and ideas, past, current, and planned research and\ndevelopment, current and planned manufacturing or distribution methods and processes, customer lists, current and anticipated customer\nrequirements, price lists, market studies, business plans, computer software and programs (including object code and source code), computer\nsoftware and database technologies, systems, structures, and architectures (and related formulae, compositions, processes, improvements,\ndevices, know-how, inventions, discoveries, concepts, ideas, designs, methods and information) and any other information, however\ndocumented, that is a trade secret within the meaning of trade secret laws of the State of Louisiana;\n(b) information concerning the business and affairs of the Employer (which includes historical financial statements, financial projections\nand budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, personnel\ntraining and techniques and materials); and\n1\n(c) notes, analysis, compilations, studies, summaries, and other material prepared by or for the Employer containing or based, in whole or\nin part, on any information included in the foregoing.\n“DISABILITY”—as defined in Section 6.2.\n“EFFECTIVE DATE”—the date stated in the first paragraph of the Agreement.\n“EMPLOYMENT PERIOD”—the term of the Executive’s employment under this Agreement.\n“FISCAL YEAR”—the Employer’s fiscal year, as it exists on the Effective Date or as changed from time to time.\n“FOR CAUSE”—as defined in Section 6.3.\n“PERSON”—any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint\nventure, estate, trust, association, organization, or governmental body.\n“POST-EMPLOYMENT PERIOD”—as defined in Section 8.2.\n“PROPRIETARY ITEMS”—as defined in Section 7.2(a)(iv).\n“SALARY”—as defined in Section 3.1(a).\n2. EMPLOYMENT TERMS AND DUTIES\n2.1 EMPLOYMENT\nThe Employer hereby employs the Employee, and the Employee hereby accepts employment by the Employer, upon the terms and conditions\nset forth in this Agreement.\n2.2 TERM\nSubject to the provisions of Section 6, the term of the Employee’s employment under this Agreement will be 2 years, beginning on the 1 day\nof May 2011 and ending on April 30, 2012. The 2nd year of the Agreement is conditioned upon the Employee booking International sales in excess\nof one million ($1,000,000) dollars, within the 1 year of the Agreement. Upon agreement of the Employer and Employee, the terms of this\nAgreement may be extended beyond the initial term until terminated for cause or until terminated as otherwise provided in this Agreement.\n2\nst\nst\n2.3 DUTIES\nThe Employee will initially serve as the Special Assistant to Michel Moreno, and may sometimes also be referred to as the “Market Advisor”\nof the Employer. The Employee will use his best efforts to promote the success of the Employer’s business, and will cooperate fully with the other\nemployees in the advancement of the best interests of Employer. Employee will expand the business opportunities of the Employer, including, but\nnot limited to, increasing revenues and earnings of the Employer. Nothing in this Section 2.3, however, will prevent the Employee from engaging in\nadditional activities in connection with personal investments and community affairs that are not inconsistent with Employee’s duties under this\nAgreement.\n3. COMPENSATION\n3.1 BASIC COMPENSATION\n(a) Salary. The Employee will be paid an annual salary of $244,000.00, subject to adjustment as provided below (the “SALARY”), which\nwill be payable in equal periodic installments according to the Employer’s customary payroll practices, but no less frequently than monthly.\nThe Salary will be reviewed by the Michel Moreno not less frequently than annually, and may not be adjusted downward.\n(b) Benefits. The Employee will, during the Employment Period, be permitted to participate in the pension, profit sharing, bonus, life\ninsurance, hospitalization, major medical, and other employee benefit plans of the Employer that may be in effect from time to time, to the\nextent the Employee is eligible under the terms of those plans (collectively, the “BENEFITS”). The Employer shall not by reason of this\nSection 3 be obligated to institute, maintain, or refrain from changing, amending, or discontinuing, any employee benefit program or plan, so\nlong as such actions are similarly applicable to covered employees generally. The Employer will pay 100% of Employee’s group health and\ndisability insurance premiums as maintained by the Employer.\n(c) The Employer may withhold from the Salary, incentive compensation, and any other compensation, benefits, or amounts payable\nunder this Agreement all federal, state, city, or other taxes as may be required pursuant to any law or governmental regulation or ruling.\n3.2 INCENTIVE COMPENSATION\n(a) The Employee will be entitled to receive 3% to 5%, (percentage to be jointly determined by Employer and Employee), of revenue\ndirectly generated from international sales by Employee for the Company. Gross Revenue as used herein shall be based upon billings made by\nthe Company and compensation predicated thereon shall be paid irrespective of the date of payment to the Company. Employee shall receive\ncompensation upon revenue generated during the term of this Agreement but billed thereafter. Cash and trade discounts shall not be deducted\nfrom the gross selling price.\n3\n(b) Examination of books-Employee shall have the right personally, or through an agent, but at his own expense, to examine the books\nand records of the Company for the purpose of determining the gross revenue.\n4. FACILITIES AND EXPENSES\n4.1 GENERAL\nThe Employee will work at his preferred location and will be directed by his efforts alone. In accordance with the Employer’s\nemployment policies, Employee will be reimbursed reasonable expenses incurred by the Employee, in appropriate entertainment activities, and for\nbusiness promotional expenses. The Employee must file expense reports with respect to such expenses in accordance with the Employer’s policies\nand approved by Michel Moreno.\n4.2 AUTOMOBILE\nThe Employer will pay the Employee an automobile allowance of $1,300.00 per month. The Employee will own his own automobile,\nand maintain and insure it at his own expense, for his business use in connection with his employment under this Agreement. The Employee will at\nhis own expense maintain liability insurance on any automobile used in connection with the Employer’s business, including excess liability\n(umbrella) insurance coverage in an amount not less than $1,000,000 per occurrence, with underlying insurance coverage as required by such excess\nliability insurance policy, and the Employee will furnish proof of such insurance to the Employer as requested by the Employer. The Employee will\nbe solely responsible for all automobile expenses, except for gas and oil expenses which will, with written proof of such expenses, be reimbursed to\nthe Employee by the Employer. All such oil and gas expenses submitted for reimbursement must be allocated by Employee between Employer, and\nany of Employer’s affiliated Employee may be employed by, and Employee will be responsible for all taxes applicable to the reimbursement of these\noil and gas expenses.\n5. VACATIONS AND HOLIDAYS\nThe Employee will be entitled to four (4) weeks’ paid vacation each Fiscal Year to be taken at times selected by him, with the prior notice to\nthe Company’s Members, and in accordance with the vacation policies of the Employer in effect for its Employee officers from time to time. The\nEmployee will also be entitled to the paid holidays set forth in the Employer’s policies.\n6. TERMINATION\n6.1 EVENTS OF TERMINATION\nThe Employment Period, the Employee’s Basic Compensation, and any and all other rights of the Employee under this Agreement or\notherwise as an employee of the Employer will terminate (except as otherwise provided in this Section 6):\n(a) upon the death of the Employee; or\n4\n(b) upon the disability of the Employee (as defined in Section 6.2) immediately upon notice from either party to the other;\n(c) for cause (as defined in Section 6.3), immediately upon notice from the Employer to the Employee, or at such later time as such\nnotice may specify;\n(d) by Employee without cause, immediately upon notice from Employee or at Employee’s later time as such notice may specify.\n6.2 DEFINITION OF DISABILITY\nFor purposes of Section 6.1, the Employee will be deemed to have a “disability” if, for physical or mental reasons, the Employee is\nunable to perform the essential functions of the Employee’s duties under this Agreement for 120 consecutive days, or 180 days during any twelve-\nmonth period, as determined in accordance with this Section 6.2 . The disability of the Employee will be determined by a medical doctor selected by\nwritten agreement of the Employer and the Employee upon the request of either party by notice to the other. If the Employer and the Employee\ncannot agree on the selection of a medical doctor, each of them will select a medical doctor and the two medical doctors will select a third medical\ndoctor who will determine whether the Employee has a disability. The determination of the medical doctor selected under this Section 6.2 will be\nbinding on both parties. The Employee must submit to a reasonable number of examinations by the medical doctor making the determination of\ndisability under this Section 6.2, and the Employee hereby authorizes the disclosure and release to the Employer of such determination and all\nsupporting medical records. If the Employee is not legally competent, the Employee’s legal guardian or duly authorized attorney-in-fact will act in\nthe Employee’s stead, under this Section 6.2, for the purposes of submitting the Employee to the examinations, and providing the authorization of\ndisclosure, required under this Section 6.2 .\n6.3 DEFINITION OF “FOR CAUSE”\nFor purposes of Section 6.1, the phrase “for cause” means: (a) the Employee’s material breach of this Agreement; (b) the Employee’s material\nfailure to adhere to any written Employer policy; (c) the appropriation (or attempted appropriation) of a material business opportunity of the\nEmployer, including attempting to secure or securing any personal profit in connection with any transaction entered into on behalf of the Employer;\n(d) the misappropriation (or attempted misappropriation) of any of the Employer’s funds, property, or opportunity; (e) the conviction of, the\nindictment for (or its procedural equivalent), or the entering of a guilty plea or plea of no contest with respect to a felony punishable by\nimprisonment; (f) Employee’s gross negligence in the performance of the duties and services required of the Employee pursuant to this Agreement\nthat has a material adverse effect on the Employer or any affiliate; or (g) it is found that a material representation or warranty made by the Employee\nin this Agreement was untrue at the time such representation or warranty was made.\n6.4 TERMINATION PAY\nEffective upon the termination of this Agreement, the Employer will be obligated to pay the Employee (or, in the event of his death, his\ndesignated beneficiary as defined below) only such compensation as is provided in this Section 6.4, and in lieu of all other amounts and in\n5\nsettlement and complete release of all claims the Employee may have against the Employer. For purposes of this Section 6.4, the Employee’s\ndesignated beneficiary will be such individual beneficiary or trust, located at such address, as the Employee may designate by notice to the\nEmployer. from time to time or, if the Employee fails to give notice to the Employer of such a beneficiary, the Employee’s estate. Notwithstanding\nthe preceding sentence, the Employer will have no duty, in any circumstances, to attempt to open an estate on behalf of the Employee, to determine\nwhether any beneficiary designated by the Employee is alive or to ascertain the address of any such beneficiary, to determine the existence of any\ntrust, to determine whether any person or entity purporting to act as the Employee’s personal representative (or the trustee of a trust established by\nthe Employee) is duly authorized to act in that capacity, or to locate or attempt to locate any beneficiary, personal representative, or trustee.\n(a) Termination by the Employer for Cause. If the Employer terminates this Agreement for cause, the Employee will be entitled to\nreceive his Salary only through the date this Agreement is effective.\n(b) Termination upon Disability. If this Agreement is terminated by either party as a result of the Employee’s disability, as determined\nunder Section 6.2, the Employer will continue to pay the Employee his Salary for the period of two months following this notice of termination\nless any disability insurance benefits received by Employee under the disability insurance coverage furnished by Employer.\n(c) Termination upon Death. If this Agreement is terminated because of the Employee’s death, the Employee will be entitled to receive\nhis Salary through the end of the calendar month in which his death occurs and one additional month.\n(d) Termination without cause. If this Agreement is terminated because without cause, the Employee will be entitled to receive his Salary\nas it becomes due for the remaining term of this Agreement. If the Employee terminates this Agreement, without cause, Employee will be\nentitled to his Salary only through the date such termination is effective.\n(e) If the Employee terminates this Agreement, Employee will be entitled to his Salary only through the date such termination is\neffective.\n(f) Benefits. The Employee’s accrual of, or participation in plans providing for, the Benefits will cease at the effective date of the\ntermination of this Agreement, and the Employee will be entitled to accrued Benefits pursuant to such plans only as provided in such plans.\nExcluding a termination without cause as provided in Section 6.4(d) and/or a resignation of employment by Employee, the Employee will not\nreceive, as part of his termination pay pursuant to this Section 6, any payment or other compensation for any vacation, holiday, sick leave, or\nother leave unused on the date the notice of termination is given under this Agreement.\n6\n7. NON -DISCLOSURE COVENANT\n7.1 ACKNOWLEDGMENTS BY THE EMPLOYEE\nThe Employee acknowledges that (a) during the Employment Period and as a part of his employment, the Employee will be afforded\naccess to Confidential Information; (b) public disclosure of such Confidential Information could have an adverse effect on the Employer and its\nbusiness; (c) because the Employee possesses substantial technical expertise and skill with respect to the Employer’s business; and (d) the provisions\nof this Section 7 are reasonable and necessary to prevent the improper use or disclosure of Confidential Information.\n7.2 AGREEMENTS OF THE EMPLOYEE\nIn consideration of the compensation and benefits to be paid or provided to the Employee by the Employer under this Agreement, the\nEmployee covenants as follows:\nConfidentiality.\n(i) During and for 2 years following the Employment Period, the Employee will hold in confidence the Confidential Information\nand will not disclose it to any person except with the specific prior written consent of the Employer or except as otherwise expressly\npermitted by the terms of this Agreement.\n(ii) Any trade secrets of the Employer will be entitled to all of the protections and benefits under the trade secret law of the States\nof Louisiana and any other applicable law. If any information that the Employer deems to be a trade secret is found by a court of\ncompetent jurisdiction not to be a trade secret for purposes of this Agreement, such information will, nevertheless, be considered\nConfidential Information for purposes of this Agreement. The Employee hereby waives any requirement that the Employer submit proof\nof the economic value of any trade secret or post a bond or other security.\n(iii) None of the foregoing obligations and restrictions applies to any part of the Confidential information that the Employee\ndemonstrates was or became generally available to the public other than as a result of a disclosure by the Employee.\n(iv) The Employee will not remove from the Employer’s premises (except to the extent such removal is necessary for purposes of\nthe performance of the Employee’s duties at home or while traveling, or except as otherwise specifically authorized by the Employer)\nany document, record, notebook, plan, model, component, device, or computer software or code, whether embodied in a disk or in any\nother form (collectively, the “PROPRIETARY ITEMS”). The Employee recognizes that, as between the Employer and the Employee, all\nof the Proprietary items, whether or not developed by the Employee, are the exclusive property of the Employer. Upon termination of\nthis Agreement by either party, or upon the request of the Employer during the Employment Period, the Employee will return to the\nEmployer all of the Proprietary items in the Employee’s possession or subject to the Employee’s control, and the Employee shall not\nretain any copies, abstracts, sketches, or other physical or electronic embodiment of any of the Proprietary items.\n7\n(v) All information, ideas, concepts, improvements, discoveries, and inventions, whether patentable or not, which are conceived,\nmade, developed or acquired by Employee, individually or in conjunction with others, during Employee’s employment by the Employer\n(whether’ during business hours or otherwise and whether on the Employer’s premises or otherwise) which relate to the Employer’s\nbusiness, products or services (including, without limitation, all such information relating to corporate opportunities, research, financial\nand sales data, pricing and trading terms, evaluations, opinions, interpretations, acquisition prospects, the identity of customers or their\nrequirements, the identity of key contacts within the customer’s organizations or within the organization of acquisition prospects, or\nmarketing and merchandising techniques, prospective names, and marks), and all writings or materials of any type embodying any of\nsuch items, will be the sole and exclusive property of the Employer.\n7.3 DISPUTES OR CONTROVERSIES\nThe Employee recognizes that should a dispute or controversy arising from or relating to this Agreement be submitted for adjudication to\nany court, arbitration panel, or other third party, the preservation of the secrecy of Confidential information may be jeopardized. All pleadings,\ndocuments, testimony, and records relating to any such adjudication will be maintained in secrecy and will be available for inspection by the\nEmployer, the Employee, and their respective attorneys and experts, who will agree, in advance and in writing, to receive and maintain all such\ninformation in secrecy, except as may be limited by them in writing.\n8. NON -COMPETITION AND NON-INTERFERENCE\n8.1 ACKNOWLEDGMENTS BY THE EMPLOYEE\nThe Employee acknowledges that: (a) the services to be performed by him under this Agreement are of a special, unique, unusual,\nextraordinary, and intellectual character; (b) the Employer’s business is regional in scope and its products are marketed throughout the States of\nLouisiana, Mississippi, Texas and offshore in the Gulf of Mexico; (c) the Employer competes with other businesses that are or could be located in\nany part of the States of Louisiana, Mississippi, or Texas and (d) the provisions of this Section 8 are reasonable and necessary to protect the\nEmployer’s business.\n8.2 COVENANTS OF THE EMPLOYEE\nIn consideration of the acknowledgments by the Employee, and in consideration of the compensation and benefits to be paid or provided\nto the Employee by the Employer, the Employee covenants that he will not, directly or indirectly:\n8\n(a) during the Employment Period, except in the course of his employment hereunder, and during the Post-Employment Period, engage\nor invest in, own, manage, operate, finance, control, or participate in the ownership, management, operation, financing, or control of, be\nemployed by, associated with, or in any manner connected with, lend the Employee’s name or any similar name to, lend Employee’s credit to\nor render services or advice to, any business that competes in whole or in part with the business of the Employer anywhere the Employer\nconducts business, and specifically within the States of Mississippi, Texas, the parishes of Louisiana described in Exhibit A attached hereto\nand offshore in the Gulf of Mexico; provided, however, that the Employee may purchase or otherwise acquire up to (but not more than) five\npercent of any class of securities of any enterprise (but without otherwise participating in the activities of such enterprise) if such securities are\nlisted on any national or regional securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934;\n(b) whether for the Employee’s own account or for the account of any other person, at any time during the Employment Period and the\nPost-Employment Period, solicit business of the same or similar type being carried on by the Employer, from any person known by the\nEmployee to be a customer of the Employer, whether or not the Employee had personal contact with such person during and by reason of the\nEmployee’s employment with the Employer;\n(c) whether for the Employee’s own account or the account of any other person (i) at any time during the Employment Period and the\nPost-Employment Period, solicit, employ, or otherwise engage as an employee, independent contractor, or otherwise, any person who is or was\nan employee of the Employer at any time during the Employment Period or in any manner induce or attempt to induce any employee of the\nEmployer to terminate his employment with the Employer; or (ii) at any time during the Employment Period and the Post-Employment Period\ninterfere with the Employer’s relationship with any person, including any person who at any time during the Employment Period was an\nemployee, contractor, supplier, or customer of the Employer; or\n(d) at any time during or after the Employment Period, disparage the Employer or any of its shareholders, directors, officers, employees,\nor agents.\nFor purposes of this Section 8.2, the term “Post-Employment Period” means the two year period beginning on the date of termination of the\nEmployee’s employment with the Employer.\nEmployee acknowledges and agrees that Employee, while employed by the Employer, owes a fiduciary duty of loyalty, fidelity and allegiance\nto act at all times in the best interest of the Employer, to do no act which would intentionally injure the Employer’s business, interests, or reputation.\nIn keeping with Employee’s fiduciary duties owed to the Employer, Employee agrees that Employee will not knowingly become involved in a\nconflict of interest with the Employer or its affiliates, or upon discovery thereof, allow such a conflict to continue.\n9\nIf any covenant in this Section 8.2 is held to be unreasonable, arbitrary, or against public policy, such covenant will be considered to be\ndivisible with respect to scope, time, and geographic area, and such lesser scope, time, or geographic area, or all of them, as a court of competent\njurisdiction may determine to be reasonable, not arbitrary, and not against public policy, will be effective, binding, and enforceable against the\nEmployee. Nevertheless, if any of the aforesaid restrictions are found by a court having jurisdiction to be unreasonable or overly broad as to\ngeographic area or time, or otherwise unenforceable, the parties intend for the restrictions herein set forth to be modified by such courts so as to be\nreasonable and enforceable and, as so modified to be fully enforced.\nThe Employee will, while the covenant under this Section 8.2 is in effect, give notice to the Employer, within ten days after accepting any\nother employment, of the identity of the Employee’s employer. The Buyer or the Employer may notify such employer that the Employee is bound by\nthis Agreement and, at the Employer’s election, furnish such employer with a copy of this Agreement or relevant portions thereof.\n9. GENERAL PROVISIONS\n9.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY\nThe Employee acknowledges that the injury that would be suffered by the Employer as a result of a breach of the provisions of this\nAgreement (including but not limited to any provision of Sections 7 and 8) would be irreparable and that an award of monetary damages to the\nEmployer for such a breach would be an inadequate remedy. Consequently, the Employer will have the right, in addition to any other rights it may\nhave, to obtain injunctive relief to restrain any breach or threatened breach or otherwise to specifically enforce any provision of this Agreement and\nthe Employer will not be obligated to post bond or other security in seeking such relief. Without limiting the Employer’s rights under this Section 9\nor any other remedies of the Employer, if the Employee breaches any of the provisions of Section 7 or 8, the Employer will have the right to cease\nmaking any payments otherwise due to the Employee under this Agreement.\n9.2 COVENANTS OF SECTIONS 7 AND 8 ARE ESSENTIAL AND INDEPENDENT COVENANTS\nThe covenants by the Employee in Sections 7 and 8 are essential elements of this Agreement, and without the Employee’s agreement to\ncomply with such covenants, the Employer would not have entered into this Agreement or employed or continued the employment of the Employee.\nThe Employer and the Employee have independently consulted their respective counsel and have been advised in all respects concerning the\nreasonableness and propriety of such covenants, with specific regard to the nature of the business conducted by the Employer.\nThe Employee’s covenants in Sections 7 and 8 are independent covenants and the existence of any claim by the Employee against the\nEmployer under this Agreement or otherwise, or against the Buyer, will not excuse the Employee’s breach of any covenant in Section 7 or 8.\n10\nIf the Employee’s employment hereunder expires or is terminated, this Agreement will continue in full force and effect as is necessary or\nappropriate to enforce the covenants and agreements of the Employee in Sections 7 and 8.\n9.3 REPRESENTATIONS AND WARRANTIES BY THE EMPLOYEE\nThe Employee represents and warrants to the Employer that the execution and delivery by the Employee of this Agreement do not, and\nthe performance by the Employee of the Employee’s obligations hereunder will not, with or without the giving of notice or the passage of time, or\nboth: (a) violate any judgment, writ, injunction, or order of any court, arbitrator, or governmental agency applicable to the Employee; or (b) conflict\nwith, result in the breach of any provisions of or the termination of, or constitute a default under, any agreement to which the Employee is a party or\nby which the Employee is or may be bound.\n9.4 OBLIGATIONS CONTINGENT ON PERFORMANCE\nThe obligations of the Employer hereunder, including its obligations to pay the compensation provided for herein, are contingent upon\nthe Employee’s performance of all the Employee’s obligations hereunder.\n9.5 WAIVER\nThe rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by either\nparty in exercising any right, power, or privilege under this Agreement will operate as a waiver of such right, power, or privilege, and no single or\npartial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of\nany other right, power, or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can be\ndischarged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no\nwaiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one\nparty will be deemed to be a waiver of any obligation of that party or of the right of the party giving the notice or demand to take further action\nwithout notice or demand as provided in this Agreement.\n9.6 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED\nThis Agreement will inure to the benefit of, and will be binding upon, the parties hereto and their respective successors, assigns, heirs,\nand legal representatives, including any entity with which the Employer may merge or consolidate or to which all or substantially all of its assets\nmay be transferred. The duties and covenants of the Employee under this Agreement, being personal, may not be delegated.\n9.7 NOTICES\nAll notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly\ngiven when (a) delivered by hand (with written confirmation of receipt), (b) sent by facsimile (with written confirmation of receipt),\n11\nprovided that a copy is mailed by registered mail, return receipt requested, or (c) when received by the addressee, if sent by a nationally recognized\novernight delivery service (receipt requested), in each case to the appropriate addresses and facsimile numbers set forth below (or to any other\naddresses and facsimile numbers as a party may designate by notice to the other parties):\nIf to Employer:\nHub City Industries, L.L .C.\n500 Dover Blvd., Suite 100\nLafayette, LA 70503\nAttention: Earl Blackwell\nWith a copy to:\nFrank S. Slavich, III\nBabineaux, Poche, Anthony & Slavich, LLC\n1201 Camellia Blvd., Suite 300\nLafayette, LA 70508\nIf to the Employee:\nJohn Egle\n112 East Peck Blvd.\nLafayette, LA 70508\nWith a copy to:\nCharles Rush, Esq.\n202 Magnate Drive\nLafayette, LA 70508\n9.8 INDEMNIFICATION OF EMPLOYEE\nThe Employer will defend, indemnify, and hold harmless Employee if Employee is made a party to a proceeding because he is a party to\nthis Agreement against liability incurred in the proceeding, if he:\n(a) conducted himself in good faith;\n(b) Reasonably believed that his conduct was in or at least not opposed to the Company’s best interest; and\n(c) In the case of any criminal proceeding, had no reasonable cause to believe his conduct was unlawful.\n9.9 ENTIRE AGREEMENT: AMENDMENTS\nThis Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersede all prior\nagreements and understandings, oral or written, between the parties hereto with respect to the subject matter hereof. This Agreement may not be\namended orally, but only by an agreement in writing signed by the parties this Agreement.\n12\n9.10 GOVERNING LAW\nThis Agreement will be governed by the laws of the State of Louisiana without regard to conflicts of laws principles.\n9.11 JURISDICTION\nAny action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement will be brought\nagainst either of the parties in the courts of the State of Louisiana, Parish of Lafayette, or if it has or can acquire jurisdiction, in the United States\nDistrict Court for the Western District of Louisiana, and each of the parties consents to the jurisdiction of such courts (and of the appropriate\nappellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding referred to in\nthe preceding sentence may be served on either party anywhere in the world.\n9.12 SECTION HEADINGS, CONSTRUCTION\nThe headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All\nreferences to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in\nthis Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word\n“including” does not limit the preceding words or terms.\n9.13 SEVERABILITY\nIf any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this\nAgreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in\nfull force and effect to the extent not held invalid or unenforceable.\n9.14 COUNTERPARTS\nThis Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement\nand all of which, when taken together, will be deemed to constitute one and the same agreement.\n9.15 ATTORNEY’S FEES\nIn the event that there is any controversy or claim arising out of or relating to this Agreement, or to the interpretation, breach or\nenforcement thereof, and any action or proceeding is commenced to enforce the provisions of this Agreement, the prevailing party shall be entitled to\na reasonable attorney’s fee, costs and expenses.\n9.16 JOINT DRAFTING\nThe parties have participated jointly in negotiating and drafting this Agreement. If a question of interpretation arises, this Agreement\nshall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of\nthe authorship of any provision of this Agreement.\n13\n9.17 WAIVE OF JURY TRIAL\nTHE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO\nTHIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS, WHETHER NOW EXISTING OR HEREAFTER ARISING,\nAND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY\nOF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR\nAGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY PROCEEDING WHATSOEVER\nBETWEEN THEM RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS SHALL INSTEAD BE\nTRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.\n9.18 TERMINATION OF PRIOR EMPLOYEMENT AGREEMENT\nThis Agreement hereby supersedes and replaces that certain Amended and Restated Employment, Non-Disclosure, and Non-Compete\nAgreement dated January 15, 2009 (the “Original Agreement”). The parties acknowledge and agree that the Original Agreement is terminated as of\nthe Effective Date of this Agreement.\nIN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date above first written above.\nEMPLOYER:\nHUB CITY INDUSTRIES, L.L.C\nBy: /s/ Michel B. Moreno\nName: Michel B. Moreno\nTitle: Managing Manger\nEMPLOYEE:\n/s/ John M. Egle\nJOHN M. EGLE\n14\nEXHIBIT A\nLOUISIANA PARISHES\nAcadia\nAllen\nAscension\nAssumption\nAvoyelles\nBeauregard\nBienville\nBossier\nCaddo\nCalcasieu\nCaldwell\nCameron\nCatahoula\nClaiborne\nConcordia\nDeSoto\nEast Baton Rouge\nEast Carroll\nEast Feliciana\nEvangeline\nFranklin\nGrant\nIberia\nIberville\nJackson\nJefferson\nJefferson Davis\nLafayette\nLafourche\nLaSalle\nLincoln\nLivingston\nMadison\nMorehouse\nNatchitoches\nOrleans\nOuachita\nPlaquemines\nPointe Coupee\nRapides\nRed River\nRichland\nSabine\nSt. Bernard\nSt. Charles\nSt. Helena\nSt. James\nSt. John the Baptist\nSt. Landry\nSt. Martin\nSt. Mary\nSt. Tammany\nTangipahoa\nTensas\nTerrebonne\nUnion\nVermillion\nVernon\nWashington\nWebster\nWest Baton Rouge\nWest Carroll\nWest Feliciana\nWinn\n15
+ca06529cf8603634a1f50eecf6c8b402.pdf	effective_date jurisdiction party term	EX-10.4 6 g10835exv10w4.htm EX-10.4 MASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nExhibit 10.4\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nbetween\nSYNOVUS FINANCIAL CORP.\nand\nTOTAL SYSTEM SERVICES, INC.\nDated November 30, 2007\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nThis MASTER CONFIDENTIAL DISCLOSURE AGREEMENT (this “Agreement”), dated as of November 30, 2007, between Synovus\nFinancial Corp., a Georgia corporation (“Synovus”), and Total System Services, Inc., a Georgia corporation (“TSYS”).\nWHEREAS, Synovus, Columbus Bank and Trust Company and TSYS have entered into an Agreement and Plan of Distribution, dated as of\nOctober 25, 2007 (as the same may be amended from time to time, the “Distribution Agreement”), which provides, subject to the terms and\nconditions in the Distribution Agreement, among other things, for the distribution of the common stock of TSYS held by Synovus as of a certain\ndate to the shareholders of Synovus; and\nWHEREAS, as part of the foregoing, the parties further desire to enter into this Agreement to provide for the protection of their Confidential\nInformation (as defined below).\nNOW, THEREFORE, in consideration of the mutual promises of the parties, and of good and valuable consideration, it is agreed by and\nbetween the parties as follows:\nARTICLE I\nDEFINITIONS\nSection 1.1 Definitions. For the purpose of this Agreement the following capitalized terms are defined in this Section 1.1 and shall have the\nmeaning specified herein:\n(a) “Affiliated Company” means, with respect to Synovus, any entity that, after the Effective Time, directly or indirectly is controlled by, or\nis under common control with, Synovus, other than any Subsidiary of Synovus, and, with respect to TSYS, any entity that, after the Effective\nTime, directly or indirectly is controlled by, or is under common control with TSYS, other than any Subsidiary of TSYS. As used herein,\n“control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such\nentity, whether through the ownership of voting securities or other interests, by contract or otherwise. For the avoidance of doubt, TSYS is not\nan Affiliated Company of Synovus for purposes of this Agreement.\n(b) “Agreement” has the meaning set forth in the preamble to this Agreement.\n(c) “Ancillary Agreements” has the meaning given to it in the Distribution Agreement.\n(d) “Commercial Agreements” has the meaning given to it in Section 6.14.\n(e) “Confidential Information” means, subject to Section 6.14, information, Trade Secrets, technical data and know-how that is not\notherwise in the public domain, that is directly related to the operation of the business of the Disclosing Party and that is either (i) known to or\nin the possession of the Receiving Party as of the Effective Time or (ii) disclosed to the Receiving Party after the Effective Time in connection\nwith the performance under any Transaction Agreement or any Commercial Agreement.\nConfidential Information shall include, with respect to a Disclosing Party, all Customer Data of such Disclosing Party. Confidential\nInformation may include information relating to, by way of example, research, products, services, customers, markets, software,\ndevelopments, inventions, processes, designs, drawings, engineering, marketing or finances, and may be in writing, disclosed orally or learned\nby inspection of computer programming code, equipment or facilities.\n(i) Confidential Information of Third Parties that is known to, in the possession of or acquired by a Receiving Party pursuant to a\nrelationship with the Disclosing Party shall be deemed the Disclosing Party’s Confidential Information for purposes herein.\n(ii) Notwithstanding the foregoing provisions of this Section 1.1(d), Confidential Information shall exclude information that: (i) was\nin the Receiving Party’s lawful possession before receipt from the Disclosing Party and obtained from a source other than the Disclosing\nParty and other than solely through the prior relationship of the Disclosing Party and the Receiving Party before the Effective Time;\n(ii) information that was lawfully possessed by both the Receiving Party and the Disclosing Party prior to the Effective Time and that\npertains to both the business of the Receiving Party and the business of the Disclosing Party; (iii) is or becomes a matter of public\nknowledge through no fault of the Receiving Party and other than as a consequence of any unauthorized disclosure, act or omission by\nthe Receiving Party or its Representatives; (iv) is lawfully received by the Receiving Party from a Third Party without a duty of\nconfidentiality; (v) is independently developed by the Receiving Party without violating any obligations hereunder; or (vi) is disclosed\nby the Receiving Party with the Disclosing Party’s prior written approval.\n(f) “Confidentiality Period” means, (i) with respect to Confidential Information that is not a Trade Secret, five (5) years after the later to\noccur of (A) the Effective Time, and (B) the date of disclosure to the Receiving Party, and (ii) with respect to Trade Secrets, the later to\noccur of (A) the date that is five (5) years after the later to occur of the Effective Time and the date of disclosure to the Receiving Party, and\n(B) the date on which the relevant Trade Secret is no longer a Trade Secret.\n(g) “Customer Data” means all data and information pertaining to any customer of a Disclosing Party and submitted to the Receiving\nParty by the Disclosing Party, or received by the Receiving Party on behalf of the Disclosing Party.\n(h) “Disclosing Party” means the party disclosing the relevant Confidential Information.\n(i) “Distribution Agreement” has the meaning set forth in the recitals to this Agreement.\n(j) “Effective Time” has the meaning set forth in the Distribution Agreement.\n(k) “Express Purpose” means: (i) with respect to the Receiving Party or any of its Representatives, to perform or assist the Receiving\nParty to perform its obligations and exercise its rights under any of the Transaction Agreements, (ii) with respect to the Receiving Party or\nany of its Representatives, to perform or assist the Receiving Party to\n2\nperform its obligations and exercise its rights under any of the Commercial Agreements and (iii) with respect to a sublicensee permitted\nunder a Transaction Agreement or Commercial Agreement, to exercise its rights under such Transaction Agreement or Commercial\nAgreement.\n(l) “Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust,\na joint venture, an unincorporated organization, and a governmental entity or any department, agency or political subdivision thereof.\n(m) “Receiving Party” means the recipient of the relevant Confidential Information.\n(n) “Representatives” has the meaning set forth in Section 2.2 of this Agreement.\n(o) “Restricted Assignment Period” has the meaning given to it in the Distribution Agreement.\n(p) “Subsidiary” has the meaning given to it in the Distribution Agreement.\n(q) “Synovus” has the meaning set forth in the preamble to this Agreement.\n(r) “Third Party” means a Person other than Synovus and its Representatives and TSYS and its Representatives.\n(s) “Trade Secret” has the meaning given to it in the Georgia Trade Secrets Act, O.C .G.A. § 10-1 -761.\n(t) “Transaction Agreements” means the Distribution Agreement and the Ancillary Agreements.\n(u) “TSYS” has the meaning set forth in the preamble to this Agreement.\nARTICLE II\nCONFIDENTIALITY\nSection 2.1 Confidentiality and Non-Use Obligations. During the Confidentiality Period, the Receiving Party shall (i) protect the\nConfidential Information of the Disclosing Party by using the same degree of care, but no less than a reasonable degree of care, including the\nutilization of security devices or procedures designed to prevent unauthorized access to such materials, to prevent the unauthorized use,\ndissemination, or publication of the Confidential Information as the Receiving Party uses to protect its own confidential information of a like\nnature, (ii) not use such Confidential Information in violation of any use restriction in this Agreement, the Distribution Agreement or any other\nAncillary Agreement or any applicable Commercial Agreement, (iii) not disclose such Confidential Information to any Third Party, except,\nsubject to applicable law, as expressly permitted under this Agreement, the Distribution Agreement or any other Ancillary Agreement, any\napplicable Commercial Agreement or in any other agreements entered into between the parties in writing, without the prior written consent of the\nDisclosing Party and (iv) not use the Confidential Information to the commercial or competitive disadvantage of the Disclosing Party. Each party\nshall instruct its officers,\n3\nemployees, agents, contractors and professional advisors (a) of its confidentiality obligations hereunder and (b) not to attempt to circumvent any\nsuch security procedures and devices. Each party’s obligation under the preceding sentence may be satisfied by the use of its standard form of\nconfidentiality agreement, if the same reasonably accomplishes the purposes here intended.\nSection 2.2 Use and Disclosure. The Receiving Party may use the Confidential Information solely for the Express Purpose and disclose the\nConfidential Information to its directors, officers, employees, professional advisors, agents, contractors, Affiliated Companies and Subsidiaries,\nand their respective directors, officers, employees, agents, contractors and sublicensees (collectively, “Representatives”) solely where such\ndisclosure is reasonably necessary for the Express Purpose, and provided that the Receiving Party may also disclose the Confidential Information\nto its sublicensees only if permitted to do so under a Transaction Agreement or an applicable Commercial Agreement. The Receiving Party’s\ndisclosure to its Representatives shall be subject to applicable law and the sublicensee’s agreement in writing to confidentiality and non-use\nterms at least as protective of the Disclosing Party as the provisions of this Agreement. The Receiving Party shall use commercially reasonable\nefforts to ensure that with regard to its Representatives’ use and possession of Confidential Information, such Representatives observe\nconfidentiality obligations at least as protective as those in this Agreement and shall be liable if such Representatives cause a breach of this\nAgreement, and for such Representatives’ failure to comply with obligations at least as protective as those in this Agreement. Each Party agrees\nthat (i) disclosure or use of Confidential Information in breach of this Agreement could cause considerable commercial and financial detriment to\nthe Disclosing Party, (ii) damages may be inadequate compensation for breach of this Agreement and (iii) if any Confidential Information is\ndisclosed or used (or threatened to be disclosed or used) in breach of this Agreement, then the Disclosing Party may seek, in addition to any other\nremedies available to it, equitable relief (including but not limited to specific performance and injunction).\nSection 2.3 Compelled Disclosure. If the Receiving Party or any of its Representatives believes that it is or will be compelled by a court or\nother authority or the rules of a stock exchange to disclose Confidential Information of the Disclosing Party, it shall (i) give the Disclosing Party\nprompt written notice so that the Disclosing Party may take steps to oppose such disclosure, but in any event the Receiving Party shall not be\nprohibited from complying with such requirement; provided, however, the Receiving Party must disclose, and ensure that the Representative\ndiscloses, only the minimum Confidential Information (as applicable) and (ii) reasonably cooperate with the Disclosing Party in its attempts to\noppose such disclosure, provided that the Disclosing Party first agrees to pay the reasonable costs of the Receiving Party in connection therewith.\nSection 2.4 No Restriction on Disclosing Party. Subject to Section 2.7, nothing in this Agreement shall restrict the Disclosing Party from\nusing, disclosing, or disseminating its own Confidential Information in any way.\nSection 2.5 No Restriction on Reassignment. This Agreement shall not restrict reassignment of the Receiving Party’s employees.\n4\nSection 2.6 Third Party Agreements. Nothing in the Agreement supersedes any restriction imposed by Third Parties on their Confidential\nInformation, and there is no obligation on the Disclosing Party to conform Third Party agreements to the terms of this Agreement.\nSection 2.7 Information Security. The Receiving Party of any Customer Data of the Disclosing Party shall be responsible for establishing,\nimplementing, maintaining and performing a reasonable information security program (including physical security of physical items) that is\nreasonably designed to (i) ensure the security and confidentiality of such Customer Data, (ii) protect against any anticipated threats or hazards to\nthe security or integrity of such Customer Data, (iii) protect against unauthorized access to or use of such Customer Data that could result in\nsubstantial material harm to the Disclosing Party or any of its customers and (iv) ensure the proper disposal of such Customer Data. The\nDisclosing Party shall maintain reasonable security for its own systems, servers, and communications links as is reasonably designed to\n(a) protect the security and integrity of its Customer Data to the extent within the Disclosing Party’s control, and (b) protect against unauthorized\naccess to or use of the Receiving Party’s systems and servers on which Customer Data of the Disclosing Party is stored to the extent within the\nDisclosing Party’s control. The Receiving Party will (1) take appropriate action to address any incident of unauthorized access to Customer Data\nof the Disclosing Party and (2) notify the Disclosing Party as soon as possible of any incident of unauthorized access to Customer Data and any\nother breach in the Receiving Party’s security that materially affects the Disclosing Party or the Disclosing Party’s customers. Either party may\nchange its security procedures from time to time as commercially reasonable to address operations risks and concerns in compliance with the\nrequirements of this section.\nARTICLE III\nWARRANTY DISCLAIMER\nEACH PARTY ACKNOWLEDGES AND AGREES THAT ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN “AS IS,\nWHERE IS” BASIS AND THAT NEITHER PARTY NOR ANY OF ITS REPRESENTATIVES HAS MADE OR WILL MAKE ANY\nREPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION,\nANY IMPLIED REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,\nENFORCEABILITY OR NON-INFRINGEMENT, OR AS TO THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL\nINFORMATION.\nARTICLE IV\nTERM AND TERMINATION\nSection 4.1 Term. This Agreement shall remain in full force and effect until the earlier to occur of: (i) the expiration of the last\nConfidentiality Period; and (ii) the termination of this Agreement by the mutual written agreement of the parties.\n5\nSection 4.2 Survival. Articles II (with respect to Confidential Information acquired or disclosed prior to the date of termination), III, IV, V, VI\nand VII shall survive any termination of this Agreement.\nSection 4.3 Return of Confidential Information.\n(a) Distribution or Ancillary Agreements. With respect to Confidential Information disclosed in connection with the Distribution\nAgreement or any Ancillary Agreement, upon the earlier to occur of: (i) the termination or expiration of this Agreement and (ii) the\ntermination of the Distribution Agreement or the whole or any part of any Ancillary Agreement, the Receiving Party shall (and shall procure\nthat its Affiliated Companies and Representatives shall) promptly but in no event later than thirty (30) days following a request made in\nwriting by the Disclosing Party: (x) return to the Disclosing Party or destroy (at the sole option of the Receiving Party) all Confidential\nInformation of the Disclosing Party in the possession or control of the Receiving Party (including, without limitation, all documents, records,\nnotebooks, data, reports, notes, compilations, computer files, data and programs, and similar repositories or materials and any and all copies or\nreproductions thereof), as directed by the Disclosing Party; provided, however, (1) the Confidential Information to be so returned or destroyed\nshall be limited to such Confidential Information that is not necessary for the performance by the Receiving Party under any then effective\nCommercial Agreement and (2) in case of a termination of the whole or part of any Ancillary Agreement (other than this Agreement), the\nConfidential Information to be so returned or destroyed shall be limited to such Confidential Information disclosed by the Disclosing Party in\nconnection with such terminated Ancillary Agreement, or part thereof, as the case may be; and (y) deliver to the Disclosing Party a certificate\nsigned by a duly authorized officer of the Receiving Party supervising such return and destruction, certifying such return or destruction in\naccordance with the provisions of this Agreement.\n(b) Commercial Agreements. With respect to Confidential Information disclosed in connection with any Commercial Agreement, upon the\ntermination or expiration of such Commercial Agreement, the Receiving Party shall (and shall procure that its Affiliated Companies and\nRepresentatives shall) promptly but in no event later than thirty (30) days following a request made in writing by the Disclosing Party:\n(x) return to the Disclosing Party or destroy (at the sole option of the Receiving Party) Confidential Information of the Disclosing Party in the\npossession or control of the Receiving Party (including, without limitation, all documents, records, notebooks, data, reports, notes,\ncompilations, computer files, data and programs, and similar repositories or materials and any and all copies or reproductions thereof), as\ndirected by the Disclosing Party; provided, however, the Confidential Information to be so returned or destroyed shall be limited to such\nConfidential Information disclosed by the Disclosing Party in connection with such terminated Commercial Agreement and shall not require\nthe destruction of any Confidential Information necessary for the performance of the Receiving Party under the Distribution Agreement, any\nAncillary Agreement or any other then effective Commercial Agreement; and (y) deliver to the Disclosing Party a certificate signed by a duly\nauthorized officer of the Receiving Party supervising such\n6\nreturn and destruction, certifying such return or destruction in accordance with the provisions of this Agreement.\n(c) Notwithstanding the foregoing provisions of Sections 4.3(a) and (b), the Receiving Party may retain Confidential Information if\nrequired to do so by applicable law, provided that the Receiving Party shall notify the Disclosing Party in writing of such obligation, and\n(A) may not use such retained Confidential Information for any purpose not strictly required to comply with such law, and (B) shall at the\nDisclosing Party’s option, return or destroy such retained Confidential Information as soon as practicable after it is no longer required by law\nto retain it.\nARTICLE V\nLIMITATION OF LIABILITY\nIN NO EVENT SHALL EITHER PARTY OR ITS SUBSIDIARIES OR AFFILIATED COMPANIES BE LIABLE TO THE OTHER PARTY\nOR ITS SUBSIDIARIES OR AFFILIATED COMPANIES FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR\nPUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING\nNEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF\nTHE POSSIBILITY OF SUCH DAMAGES.\nARTICLE VI\nMISCELLANEOUS PROVISIONS\nSection 6.1 Dispute Resolution. Any dispute arising out of or relating to the performance, breach or interpretation of this Agreement shall be\nhandled in accordance with Section 5.5 of the Distribution Agreement.\nSection 6.2 Export Restrictions. Both parties shall adhere to all applicable laws, regulations and rules relating to the export of technical data,\nand shall not export or reexport any technical data, any products received from Disclosing Party, or the direct product of such technical data, to\nany proscribed country listed in such applicable laws, regulations and rules unless properly authorized.\nSection 6.3 No Implied Licenses. The Receiving Party acknowledges that the Confidential Information is the exclusive property of the\nDisclosing Party, and the Disclosing Party has the exclusive right, title and interest to its Confidential Information. Nothing contained in this\nAgreement shall be construed as conferring any rights by implication, estoppel or otherwise, or under any intellectual property right, other than\nthe rights expressly granted in this Agreement, to the Confidential Information. Neither party is required hereunder to furnish or disclose to the\nother any technical or other information.\nSection 6.4 Infringement Suits. Neither party shall have any obligation hereunder to institute any action or suit against Third Parties for\nmisappropriation of any of its Confidential Information or to defend any action or suit brought by a Third Party that alleges infringement of\n7\nany intellectual property rights by the Receiving Party’s authorized use of the Disclosing Party’s Confidential Information.\nSection 6.5 Entire Agreement. This Agreement, the Distribution Agreement, the other Ancillary Agreements, and the Commercial\nAgreements constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all prior written and\noral and all contemporaneous oral agreements and understandings with respect to the subject matter hereof. Notwithstanding the foregoing, the\nparties agree that any agreements entered into between them after the Effective Time for the protection of specific Confidential Information shall\nsupersede the terms of this Agreement with respect to such Confidential Information.\nSection 6.6 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of\nGeorgia as to all matters regardless of the laws that might otherwise govern under principles of conflicts of laws applicable thereto.\nSection 6.7 Descriptive Headings. The descriptive headings herein are inserted for convenience of reference only and are not intended to be\npart of or to affect the meaning or interpretation of this Agreement.\nSection 6.8 Notices. All notices and other communications hereunder shall be in writing and shall be deemed effectively given the earlier of\n(i) when received, (ii) when delivered personally, (iii) one (1) Business Day after being delivered by facsimile (with receipt of appropriate\nconfirmation) or (iv) one (1) Business Day after being deposited with an overnight courier service and addressed to the respective parties as\nfollows:\nif to Synovus:\nSynovus Financial Corp.\n1111 Bay Avenue\nSuite 500\nColumbus, GA 31901\nAttention: Chief Financial Officer\nTelecopy: (706) 649-4819\nif to TSYS:\nTotal System Services, Inc.\n1600 First Avenue\nColumbus, GA 31901\nAttention: Chief Financial Officer\nTelecopy: (706) 644-1725\nor to such other address as a party may request by notifying the other in writing. As used in this Section 6.8, “Business Day” means any day\nother than a Saturday, a Sunday or a day on which banking institutions located in the city of Columbus, Georgia are authorized or obligated by\nlaw or executive order to close.\n8\nSection 6.9 Assignment. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective legal\nrepresentatives and successors, and nothing in this Agreement, express or implied, is intended to confer upon any other Person any rights or\nremedies of any nature whatsoever under or by reason of this Agreement; provided, however, except as otherwise expressly provided for in this\nAgreement, this Agreement shall not be assignable, in whole or in part, by any party without the prior written consent of the other party, and any\nattempt to assign any rights or obligations arising under this Agreement without such consent shall be null and void; provided further, that a party\nmay assign this Agreement in connection with: (i) a merger transaction in which such party is not the surviving entity or (ii) the sale, transfer,\nexchange or other disposition by such party of all or substantially all of its assets, so long as, in either case, if such merger or asset sale\ntransaction occurs during the Restricted Assignment Period, the rating of the assignee, following the consummation of such merger or asset sale\ntransaction, shall be BBB- or better from Standard & Poor’s and Baa3 or better from Moody’s Investor Services, Inc. (or if Standard & Poor ’s or\nMoody’s Investor Services, Inc. shall change their rating designations after the date of this Agreement, a comparable rating or better under such\nnew designations), and upon the effectiveness of any such valid assignment the assigning party shall be released from all of its obligations under\nthis Agreement if the surviving entity of such merger or the transferee of such assets shall agree in writing, in form and substance reasonably\nsatisfactory to the other party, to be bound by the terms of this Agreement as if named as a “party” hereto. The Receiving Party’s assignment of\nthis Agreement shall not relieve it of any of its obligations hereunder.\nSection 6.10 Severability. If any term or other provision of this Agreement is determined by a nonappealable decision of a court,\nadministrative agency or binding arbitrator by any court or in any binding arbitration to be invalid, illegal or incapable of being enforced by any\nrule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the\neconomic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either party. Upon such\ndetermination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to\nmodify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the\ntransactions contemplated hereby are fulfilled to the fullest extent possible.\nSection 6.11 Failure or Indulgence not Waiver; Remedies Cumulative. No failure or delay on the part of either party hereto in the exercise\nof any right hereunder shall impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or\nagreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. All\nrights and remedies existing under this Agreement are cumulative to, and not exclusive of, any rights or remedies otherwise available.\nSection 6.12 Amendment. No change or amendment will be made to this Agreement except by an instrument in writing signed on behalf of\neach of the parties to such agreement.\nSection 6.13 Counterparts. This Agreement may be executed in two or more counterparts, all of which, taken together, shall be considered\nto be one and the same instrument.\n9\nSection 6.14 Existing Agreements. Notwithstanding anything to the contrary in this Agreement, Confidential Information shall not include,\nand this Agreement shall not in any way apply to, any confidential information exchanged pursuant to those agreements between the parties\nand/or their respective Subsidiaries set forth on Schedule A hereto to the extent such agreements contain provisions governing the use and\ndisclosure of confidential information. Those agreements set forth on Schedule A that do not include such a provision are referred to herein as\nthe “Commercial Agreements” and the disclosure and use of confidential information under such Commercial Agreements is governed by the\nterms and conditions of this Agreement.\nSection 6.15 Effectiveness. This Agreement shall become effective upon the Effective Time and prior thereto shall be of no force or effect. If\nthe Distribution Agreement shall be terminated in accordance with its terms prior to the occurrence of the Effective Time, this Agreement and\nany actions or agreements contemplated hereby shall automatically be terminated and of no force or effect.\n[Signature page follows]\n10\nWHEREFORE, the parties have signed this Master Confidential Disclosure Agreement effective as of the Effective Time.\nSYNOVUS FINANCIAL CORP.\nTOTAL SYSTEM SERVICES, INC.\nBy: /s/ Thomas J. Prescott\nBy: /s/ James B. Lipham\nName: Thomas J. Prescott\nName: James B. Lipham\nTitle: Executive Vice President and Chief Financial Officer Title: Senior Executive Vice President and Chief Financial Officer\n[Signature page to Master Confidential Disclosure Agreement]	EX-10.4 6 g10835exv10w4.htm EX-10.4 MASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nbetween\nSYNOVUS FINANCIAL CORP.\nand\nTOTAL SYSTEM SERVICES, INC.\nDated November 30, 2007\nExhibit 10.4\nMASTER CONFIDENTTAL DISCLOSURE AGREEMENT\nThis MASTER CONFIDENTIAL DISCLOSURE AGREEMENT (this “Agreement”), dated as of November 30, 2007, between Synovus\nFinancial Corp., a Georgia corporation (“Synovus”), and Total System Services, Inc., a Georgia corporation (“ISYS”).\n \nWHEREAS, Synovus, Columbus Bank and Trust Company and TSY S have entered into an Agreement and Plan of Distribution, dated as of\nOctober 25, 2007 (as the same may be amended from time to time, the “Distribution Agreement”), which provides, subject to the terms and\nconditions in the Distribution Agreement, among other things, for the distribution of the common stock of TSY'S held by Synovus as of a certain\ndate to the shareholders of Synovus; and\n \nWHEREAS, as part of the foregoing, the parties further desire to enter into this Agreement to provide for the protection of their Confidential\nInformation (as defined below).\nNOW, THEREFORE, in consideration of the mutual promises of the parties, and of good and valuable consideration, it is agreed by and\nbetween the parties as follows:\nARTICLE 1\nDEFINITIONS\nSection 1.1 Definitions. For the purpose of this Agreement the following capitalized terms are defined in this Section 1.1 and shall have the\nmeaning specified herein:\n(a) “Affiliated Company” means, with respect to Synovus, any entity that, after the Effective Time, directly or indirectly is controlled by, or\nis under common control with, Synovus, other than any Subsidiary of Synovus, and, with respect to TSYS, any entity that, after the Effective\nTime, directly or indirectly is controlled by, or is under common control with TSYS, other than any Subsidiary of TSYS. As used herein,\n“control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such\nentity, whether through the ownership of voting securities or other interests, by contract or otherwise. For the avoidance of doubt, TSYS is not\nan Affiliated Company of Synovus for purposes of this Agreement.\n(b) “Agreement” has the meaning set forth in the preamble to this Agreement.\n(c) “Ancillary Agreements” has the meaning given to it in the Distribution Agreement.\n(d) “Commercial Agreements” has the meaning given to it in Section 6.14.\n(e) “Confidential Information” means, subject to Section 6.14, information, Trade Secrets, technical data and know-how that is not\notherwise in the public domain, that is directly related to the operation of the business of the Disclosing Party and that is either (i) known to or\nin the possession of the Receiving Party as of the Effective Time or (ii) disclosed to the Receiving Party after the Effective Time in connection\nwith the performance under any Transaction Agreement or any Commercial Agreement.\nConfidential Information shall include, with respect to a Disclosing Party, all Customer Data of such Disclosing Party. Confidential\nInformation may include information relating to, by way of example, research, products, services, customers, markets, software,\ndevelopments, inventions, processes, designs, drawings, engineering, marketing or finances, and may be in writing, disclosed orally or learned\nby inspection of computer programming code, equipment or facilities.\n(i) Confidential Information of Third Parties that is known to, in the possession of or acquired by a Receiving Party pursuant to a\nrelationship with the Disclosing Party shall be deemed the Disclosing Party’s Confidential Information for purposes herein.\n(ii) Notwithstanding the foregoing provisions of this Section 1.1(d), Confidential Information shall exclude information that: (i) was\nin the Receiving Party’s lawful possession before receipt from the Disclosing Party and obtained from a source other than the Disclosing\nParty and other than solely through the prior relationship of the Disclosing Party and the Receiving Party before the Effective Time;\n(ii) information that was lawfully possessed by both the Receiving Party and the Disclosing Party prior to the Effective Time and that\npertains to both the business of the Receiving Party and the business of the Disclosing Party; (iii) is or becomes a matter of public\nknowledge through no fault of the Receiving Party and other than as a consequence of any unauthorized disclosure, act or omission by\nthe Receiving Party or its Representatives; (iv) is lawfully received by the Receiving Party from a Third Party without a duty of\nconfidentiality; (v) is independently developed by the Receiving Party without violating any obligations hereunder; or (vi) is disclosed\nby the Receiving Party with the Disclosing Party’s prior written approval.\n(f) “Confidentiality Period” means, (i) with respect to Confidential Information that is not a Trade Secret, five (5) years after the later to\noccur of (A) the Effective Time, and (B) the date of disclosure to the Receiving Party, and (ii) with respect to Trade Secrets, the later to\noccur of (A) the date that is five (5) years after the later to occur of the Effective Time and the date of disclosure to the Receiving Party, and\n(B) the date on which the relevant Trade Secret is no longer a Trade Secret.\n \n(g) “Customer Data” means all data and information pertaining to any customer of a Disclosing Party and submitted to the Receiving\nParty by the Disclosing Party, or received by the Receiving Party on behalf of the Disclosing Party.\n(h) “Disclosing Party” means the party disclosing the relevant Confidential Information.\n(i) “Distribution Agreement” has the meaning set forth in the recitals to this Agreement.\n(j) “Effective Time” has the meaning set forth in the Distribution Agreement.\n(k) “Express Purpose” means: (i) with respect to the Receiving Party or any of its Representatives, to perform or assist the Receiving\nParty to perform its obligations and exercise its rights under any of the Transaction Agreements, (ii) with respect to the Receiving Party or\nany of its Representatives, to perform or assist the Receiving Party to\n2\nperform its obligations and exercise its rights under any of the Commercial Agreements and (iii) with respect to a sublicensee permitted\nunder a Transaction Agreement or Commercial Agreement, to exercise its rights under such Transaction Agreement or Commercial\nAgreement.\n(1) “Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust,\na joint venture, an unincorporated organization, and a governmental entity or any department, agency or political subdivision thereof.\n(m) “Receiving Party” means the recipient of the relevant Confidential Information.\n(n) “Representatives” has the meaning set forth in Section 2.2 of this Agreement.\n(o) “Restricted Assignment Period” has the meaning given to it in the Distribution Agreement.\n(p) “Subsidiary” has the meaning given to it in the Distribution Agreement.\n(q) “Synovus” has the meaning set forth in the preamble to this Agreement.\n(r) “Third Party” means a Person other than Synovus and its Representatives and TSYS and its Representatives.\n(s) “Trade Secret” has the meaning given to it in the Georgia Trade Secrets Act, O.C.G.A. § 10-1-761.\n(t) “Transaction Agreements” means the Distribution Agreement and the Ancillary Agreements.\n(u) “TSYS” has the meaning set forth in the preamble to this Agreement.\nARTICLE II\nCONFIDENTIALITY\nSection 2.1 Confidentiality and Non-Use Obligations. During the Confidentiality Period, the Receiving Party shall (i) protect the\nConfidential Information of the Disclosing Party by using the same degree of care, but no less than a reasonable degree of care, including the\nutilization of security devices or procedures designed to prevent unauthorized access to such materials, to prevent the unauthorized use,\ndissemination, or publication of the Confidential Information as the Receiving Party uses to protect its own confidential information of a like\nnature, (ii) not use such Confidential Information in violation of any use restriction in this Agreement, the Distribution Agreement or any other\nAncillary Agreement or any applicable Commercial Agreement, (iii) not disclose such Confidential Information to any Third Party, except,\nsubject to applicable law, as expressly permitted under this Agreement, the Distribution Agreement or any other Ancillary Agreement, any\napplicable Commercial Agreement or in any other agreements entered into between the parties in writing, without the prior written consent of the\nDisclosing Party and (iv) not use the Confidential Information to the commercial or competitive disadvantage of the Disclosing Party. Each party\nshall instruct its officers,\nemployees, agents, contractors and professional advisors (a) of its confidentiality obligations hereunder and (b) not to attempt to circumvent any\nsuch security procedures and devices. Each party’s obligation under the preceding sentence may be satisfied by the use of its standard form of\nconfidentiality agreement, if the same reasonably accomplishes the purposes here intended.\nSection 2.2 Use and Disclosure. The Receiving Party may use the Confidential Information solely for the Express Purpose and disclose the\nConfidential Information to its directors, officers, employees, professional advisors, agents, contractors, Affiliated Companies and Subsidiaries,\nand their respective directors, officers, employees, agents, contractors and sublicensees (collectively, “Representatives”) solely where such\ndisclosure is reasonably necessary for the Express Purpose, and provided that the Receiving Party may also disclose the Confidential Information\nto its sublicensees only if permitted to do so under a Transaction Agreement or an applicable Commercial Agreement. The Receiving Party’s\ndisclosure to its Representatives shall be subject to applicable law and the sublicensee’s agreement in writing to confidentiality and non-use\nterms at least as protective of the Disclosing Party as the provisions of this Agreement. The Receiving Party shall use commercially reasonable\nefforts to ensure that with regard to its Representatives’ use and possession of Confidential Information, such Representatives observe\nconfidentiality obligations at least as protective as those in this Agreement and shall be liable if such Representatives cause a breach of this\nAgreement, and for such Representatives’ failure to comply with obligations at least as protective as those in this Agreement. Each Party agrees\nthat (i) disclosure or use of Confidential Information in breach of this Agreement could cause considerable commercial and financial detriment to\nthe Disclosing Party, (ii) damages may be inadequate compensation for breach of this Agreement and (iii) if any Confidential Information is\ndisclosed or used (or threatened to be disclosed or used) in breach of this Agreement, then the Disclosing Party may seek, in addition to any other\nremedies available to it, equitable relief (including but not limited to specific performance and injunction).\nSection 2.3 Compelled Disclosure. If the Receiving Party or any of its Representatives believes that it is or will be compelled by a court or\nother authority or the rules of a stock exchange to disclose Confidential Information of the Disclosing Party, it shall (i) give the Disclosing Party\nprompt written notice so that the Disclosing Party may take steps to oppose such disclosure, but in any event the Receiving Party shall not be\nprohibited from complying with such requirement; provided, however, the Receiving Party must disclose, and ensure that the Representative\ndiscloses, only the minimum Confidential Information (as applicable) and (ii) reasonably cooperate with the Disclosing Party in its attempts to\noppose such disclosure, provided that the Disclosing Party first agrees to pay the reasonable costs of the Receiving Party in connection therewith.\nSection 2.4 No Restriction on Disclosing Party. Subject to Section 2.7, nothing in this Agreement shall restrict the Disclosing Party from\nusing, disclosing, or disseminating its own Confidential Information in any way.\nSection 2.5 No Restriction on Reassignment. This Agreement shall not restrict reassignment of the Receiving Party’s employees.\n4\nSection 2.6 Third Party Agreements. Nothing in the Agreement supersedes any restriction imposed by Third Parties on their Confidential\nInformation, and there is no obligation on the Disclosing Party to conform Third Party agreements to the terms of this Agreement.\nSection 2.7 Information Security. The Receiving Party of any Customer Data of the Disclosing Party shall be responsible for establishing,\nimplementing, maintaining and performing a reasonable information security program (including physical security of physical items) that is\nreasonably designed to (i) ensure the security and confidentiality of such Customer Data, (ii) protect against any anticipated threats or hazards to\nthe security or integrity of such Customer Data, (iii) protect against unauthorized access to or use of such Customer Data that could result in\nsubstantial material harm to the Disclosing Party or any of its customers and (iv) ensure the proper disposal of such Customer Data. The\nDisclosing Party shall maintain reasonable security for its own systems, servers, and communications links as is reasonably designed to\n(a) protect the security and integrity of its Customer Data to the extent within the Disclosing Party’s control, and (b) protect against unauthorized\naccess to or use of the Receiving Party’s systems and servers on which Customer Data of the Disclosing Party is stored to the extent within the\nDisclosing Party’s control. The Receiving Party will (1) take appropriate action to address any incident of unauthorized access to Customer Data\nof the Disclosing Party and (2) notify the Disclosing Party as soon as possible of any incident of unauthorized access to Customer Data and any\nother breach in the Receiving Party’s security that materially affects the Disclosing Party or the Disclosing Party’s customers. Either party may\nchange its security procedures from time to time as commercially reasonable to address operations risks and concerns in compliance with the\nrequirements of this section.\nARTICLE III\nWARRANTY DISCLAIMER\nEACH PARTY ACKNOWLEDGES AND AGREES THAT ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN “AS IS,\nWHERE IS” BASIS AND THAT NEITHER PARTY NOR ANY OF ITS REPRESENTATIVES HAS MADE OR WILL MAKE ANY\nREPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION,\nANY IMPLIED REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,\nENFORCEABILITY OR NON-INFRINGEMENT, OR AS TO THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL\nINFORMATION.\nARTICLE IV\nTERM AND TERMINATION\nSection 4.1 Term. This Agreement shall remain in full force and effect until the earlier to occur of: (i) the expiration of the last\nConfidentiality Period; and (ii) the termination of this Agreement by the mutual written agreement of the parties.\n5\nSection 4.2 Survival. Articles II (with respect to Confidential Information acquired or disclosed prior to the date of termination), III, IV, V, VI\nand VII shall survive any termination of this Agreement.\nSection 4.3 Return of Confidential Information.\n(a) Distribution or Ancillary Agreements. With respect to Confidential Information disclosed in connection with the Distribution\nAgreement or any Ancillary Agreement, upon the earlier to occur of: (i) the termination or expiration of this Agreement and (ii) the\ntermination of the Distribution Agreement or the whole or any part of any Ancillary Agreement, the Receiving Party shall (and shall procure\nthat its Affiliated Companies and Representatives shall) promptly but in no event later than thirty (30) days following a request made in\nwriting by the Disclosing Party: (x) return to the Disclosing Party or destroy (at the sole option of the Receiving Party) all Confidential\nInformation of the Disclosing Party in the possession or control of the Receiving Party (including, without limitation, all documents, records,\nnotebooks, data, reports, notes, compilations, computer files, data and programs, and similar repositories or materials and any and all copies or\nreproductions thereof), as directed by the Disclosing Party; provided, however, (1) the Confidential Information to be so returned or destroyed\nshall be limited to such Confidential Information that is not necessary for the performance by the Receiving Party under any then effective\nCommercial Agreement and (2) in case of a termination of the whole or part of any Ancillary Agreement (other than this Agreement), the\nConfidential Information to be so returned or destroyed shall be limited to such Confidential Information disclosed by the Disclosing Party in\nconnection with such terminated Ancillary Agreement, or part thereof, as the case may be; and (y) deliver to the Disclosing Party a certificate\nsigned by a duly authorized officer of the Receiving Party supervising such return and destruction, certifying such return or destruction in\naccordance with the provisions of this Agreement.\n(b) Commercial Agreements. With respect to Confidential Information disclosed in connection with any Commercial Agreement, upon the\ntermination or expiration of such Commercial Agreement, the Receiving Party shall (and shall procure that its Affiliated Companies and\nRepresentatives shall) promptly but in no event later than thirty (30) days following a request made in writing by the Disclosing Party:\n(x) return to the Disclosing Party or destroy (at the sole option of the Receiving Party) Confidential Information of the Disclosing Party in the\npossession or control of the Receiving Party (including, without limitation, all documents, records, notebooks, data, reports, notes,\ncompilations, computer files, data and programs, and similar repositories or materials and any and all copies or reproductions thereof), as\ndirected by the Disclosing Party; provided, however, the Confidential Information to be so returned or destroyed shall be limited to such\nConfidential Information disclosed by the Disclosing Party in connection with such terminated Commercial Agreement and shall not require\nthe destruction of any Confidential Information necessary for the performance of the Receiving Party under the Distribution Agreement, any\nAncillary Agreement or any other then effective Commercial Agreement; and (y) deliver to the Disclosing Party a certificate signed by a duly\nauthorized officer of the Receiving Party supervising such\nreturn and destruction, certifying such return or destruction in accordance with the provisions of this Agreement.\n(c) Notwithstanding the foregoing provisions of Sections 4.3(a) and (b), the Receiving Party may retain Confidential Information if\nrequired to do so by applicable law, provided that the Receiving Party shall notify the Disclosing Party in writing of such obligation, and\n(A) may not use such retained Confidential Information for any purpose not strictly required to comply with such law, and (B) shall at the\nDisclosing Party’s option, return or destroy such retained Confidential Information as soon as practicable after it is no longer required by law\nto retain it.\nARTICLE V\nLIMITATION OF LIABILITY\nIN NO EVENT SHALL EITHER PARTY OR ITS SUBSIDIARIES OR AFFILIATED COMPANIES BE LIABLE TO THE OTHER PARTY\nOR ITS SUBSIDIARIES OR AFFILIATED COMPANIES FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR\nPUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING\nNEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF\nTHE POSSIBILITY OF SUCH DAMAGES.\nARTICLE VI\nMISCELLANEOUS PROVISIONS\nSection 6.1 Dispute Resolution. Any dispute arising out of or relating to the performance, breach or interpretation of this Agreement shall be\nhandled in accordance with Section 5.5 of the Distribution Agreement.\nSection 6.2 Export Restrictions. Both parties shall adhere to all applicable laws, regulations and rules relating to the export of technical data,\nand shall not export or reexport any technical data, any products received from Disclosing Party, or the direct product of such technical data, to\nany proscribed country listed in such applicable laws, regulations and rules unless properly authorized.\nSection 6.3 No Implied Licenses. The Receiving Party acknowledges that the Confidential Information is the exclusive property of the\nDisclosing Party, and the Disclosing Party has the exclusive right, title and interest to its Confidential Information. Nothing contained in this\nAgreement shall be construed as conferring any rights by implication, estoppel or otherwise, or under any intellectual property right, other than\nthe rights expressly granted in this Agreement, to the Confidential Information. Neither party is required hereunder to furnish or disclose to the\nother any technical or other information.\nSection 6.4 Infringement Suits. Neither party shall have any obligation hereunder to institute any action or suit against Third Parties for\nmisappropriation of any of its Confidential Information or to defend any action or suit brought by a Third Party that alleges infringement of\n7\nany intellectual property rights by the Receiving Party’s authorized use of the Disclosing Party’s Confidential Information.\nSection 6.5 Entire Agreement. This Agreement, the Distribution Agreement, the other Ancillary Agreements, and the Commercial\nAgreements constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all prior written and\noral and all contemporaneous oral agreements and understandings with respect to the subject matter hereof. Notwithstanding the foregoing, the\nparties agree that any agreements entered into between them after the Effective Time for the protection of specific Confidential Information shall\nsupersede the terms of this Agreement with respect to such Confidential Information.\nSection 6.6 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of\nGeorgia as to all matters regardless of the laws that might otherwise govern under principles of conflicts of laws applicable thereto.\nSection 6.7 Descriptive Headings. The descriptive headings herein are inserted for convenience of reference only and are not intended to be\npart of or to affect the meaning or interpretation of this Agreement.\nSection 6.8 Notices. All notices and other communications hereunder shall be in writing and shall be deemed effectively given the earlier of\n(i) when received, (ii) when delivered personally, (iii) one (1) Business Day after being delivered by facsimile (with receipt of appropriate\nconfirmation) or (iv) one (1) Business Day after being deposited with an overnight courier service and addressed to the respective parties as\nfollows:\nif to Synovus:\nSynovus Financial Corp.\n1111 Bay Avenue\nSuite 500\nColumbus, GA 31901\nAttention:  Chief Financial Officer\nTelecopy: (706) 649-4819\nif to TSYS:\nTotal System Services, Inc.\n1600 First Avenue\nColumbus, GA 31901\nAttention:  Chief Financial Officer\nTelecopy: (706) 644-1725\nor to such other address as a party may request by notifying the other in writing. As used in this Section 6.8, “Business Day” means any day\nother than a Saturday, a Sunday or a day on which banking institutions located in the city of Columbus, Georgia are authorized or obligated by\nlaw or executive order to close.\nSection 6.9 Assignment. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective legal\nrepresentatives and successors, and nothing in this Agreement, express or implied, is intended to confer upon any other Person any rights or\nremedies of any nature whatsoever under or by reason of this Agreement; provided, however, except as otherwise expressly provided for in this\nAgreement, this Agreement shall not be assignable, in whole or in part, by any party without the prior written consent of the other party, and any\nattempt to assign any rights or obligations arising under this Agreement without such consent shall be null and void; provided further, that a party\nmay assign this Agreement in connection with: (i) a merger transaction in which such party is not the surviving entity or (ii) the sale, transfer,\nexchange or other disposition by such party of all or substantially all of its assets, so long as, in either case, if such merger or asset sale\ntransaction occurs during the Restricted Assignment Period, the rating of the assignee, following the consummation of such merger or asset sale\ntransaction, shall be BBB- or better from Standard & Poor’s and Baa3 or better from Moody’s Investor Services, Inc. (or if Standard & Poor’s or\nMoody’s Investor Services, Inc. shall change their rating designations after the date of this Agreement, a comparable rating or better under such\nnew designations), and upon the effectiveness of any such valid assignment the assigning party shall be released from all of its obligations under\nthis Agreement if the surviving entity of such merger or the transferee of such assets shall agree in writing, in form and substance reasonably\nsatisfactory to the other party, to be bound by the terms of this Agreement as if named as a “party” hereto. The Receiving Party’s assignment of\nthis Agreement shall not relieve it of any of its obligations hereunder.\nSection 6.10 Severability. If any term or other provision of this Agreement is determined by a nonappealable decision of a court,\nadministrative agency or binding arbitrator by any court or in any binding arbitration to be invalid, illegal or incapable of being enforced by any\nrule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the\neconomic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either party. Upon such\ndetermination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to\nmodify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the\ntransactions contemplated hereby are fulfilled to the fullest extent possible.\nSection 6.11 Failure or Indulgence not Waiver; Remedies Cumulative. No failure or delay on the part of either party hereto in the exercise\nof any right hereunder shall impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or\nagreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. All\nrights and remedies existing under this Agreement are cumulative to, and not exclusive of, any rights or remedies otherwise available.\nSection 6.12 Amendment. No change or amendment will be made to this Agreement except by an instrument in writing signed on behalf of\neach of the parties to such agreement.\nSection 6.13 Counterparts. This Agreement may be executed in two or more counterparts, all of which, taken together, shall be considered\nto be one and the same instrument.\nSection 6.14 Existing Agreements. Notwithstanding anything to the contrary in this Agreement, Confidential Information shall not include,\nand this Agreement shall not in any way apply to, any confidential information exchanged pursuant to those agreements between the parties\nand/or their respective Subsidiaries set forth on Schedule A hereto to the extent such agreements contain provisions governing the use and\ndisclosure of confidential information. Those agreements set forth on Schedule A that do not include such a provision are referred to herein as\nthe “Commercial Agreements” and the disclosure and use of confidential information under such Commercial Agreements is governed by the\nterms and conditions of this Agreement.\nSection 6.15 Effectiveness. This Agreement shall become effective upon the Effective Time and prior thereto shall be of no force or effect. If\nthe Distribution Agreement shall be terminated in accordance with its terms prior to the occurrence of the Effective Time, this Agreement and\nany actions or agreements contemplated hereby shall automatically be terminated and of no force or effect.\n[Signature page follows]\n10\nWHEREFORE, the parties have signed this Master Confidential Disclosure Agreement effective as of the Effective Time.\nSYNOVUS FINANCIAL CORP. TOTAL SYSTEM SERVICES, INC.\nBy:  /s/ Thomas J. Prescott By:  /s/ James B. Lipham\nName: Thomas J. Prescott Name: James B. Lipham\nTitle: Executive Vice President and Chief Financial Officer Title: Senior Executive Vice President and Chief Financial Officer\n[Signature page to Master Confidential Disclosure Agreement]	EX-10.4 6 g10835exv10w4.htm EX-10.4 MASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nExhibit 10.4\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nbetween\nSYNOVUS FINANCIAL CORP.\nand\nTOTAL SYSTEM SERVICES, INC.\nDated November 30, 2007\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nThis MASTER CONFIDENTIAL DISCLOSURE AGREEMENT (this "Agreement"), dated as of November 30, 2007, between Synovus\nFinancial Corp., a Georgia corporation ("Synovus"), and Total System Services, Inc., a Georgia corporation ("TSYS").\nWHEREAS, Synovus, Columbus Bank and Trust Company and TSYS have entered into an Agreement and Plan of Distribution, dated as of\nOctober 25, 2007 (as the same may be amended from time to time, the "Distribution Agreement"), which provides, subject to the terms and\nconditions in the Distribution Agreement, among other things, for the distribution of the common stock of TSYS held by Synovus as of a certain\ndate to the shareholders of Synovus; and\nWHEREAS, as part of the foregoing, the parties further desire to enter into this Agreement to provide for the protection of their Confidential\nInformation (as defined below).\nNOW, THEREFORE, in consideration of the mutual promises of the parties, and of good and valuable consideration, it is agreed by and\nbetween the parties as follows:\nARTICLE I\nDEFINITIONS\nSection 1.1 Definitions. For the purpose of this Agreement the following capitalized terms are defined in this Section 1.1 and shall have the\nmeaning specified herein:\n(a) "Affiliated Company." means, with respect to Synovus, any entity that, after the Effective Time, directly or indirectly is controlled by, or\nis under common control with, Synovus, other than any Subsidiary of Synovus, and, with respect to TSYS, any entity that, after the Effective\nTime, directly or indirectly is controlled by, or is under common control with TSYS, other than any Subsidiary of TSYS. As used herein,\n"control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such\nentity, whether through the ownership of voting securities or other interests, by contract or otherwise. For the avoidance of doubt, TSYS is not\nan Affiliated Company of Synovus for purposes of this Agreement.\n(b) "Agreement" has the meaning set forth in the preamble to this Agreement.\n(c) "Ancillary Agreements" has the meaning given to it in the Distribution Agreement.\n(d) "Commercial Agreements" has the meaning given to it in Section 6.14.\n(e) "Confidential Information" means, subject to Section 6.14, information, Trade Secrets, technical data and know-how that is not\notherwise in the public domain, that is directly related to the operation of the business of the Disclosing Party and that is either (i) known to or\nin the possession of the Receiving Party as of the Effective Time or (ii) disclosed to the Receiving Party after the Effective Time in connection\nwith the performance under any Transaction Agreement or any Commercial Agreement.\nConfidential Information shall include, with respect to a Disclosing Party, all Customer Data of such Disclosing Party. Confidential\nInformation may include information relating to, by way of example, research, products, services, customers, markets, software,\ndevelopments, inventions, processes, designs, drawings, engineering, marketing or finances, and may be in writing, disclosed orally or learned\nby inspection of computer programming code, equipment or facilities.\n(i) Confidential Information of Third Parties that is known to, in the possession of or acquired by a Receiving Party pursuant to a\nrelationship with the Disclosing Party shall be deemed the Disclosing Party's Confidential Information for purposes herein.\n(ii) Notwithstanding the foregoing provisions of this Section 1.1(d), Confidential Information shall exclude information that: (i) was\nin the Receiving Party's lawful possession before receipt from the Disclosing Party and obtained from a source other than the Disclosing\nParty and other than solely through the prior relationship of the Disclosing Party and the Receiving Party before the Effective Time;\n(ii)\ninformation\nthat\nwas\nlawfully\npossessed\nby\nboth\nthe\nReceiving\nParty\nand\nthe\nDisclosing\nParty\nprior\nto\nthe\nEffective\nTime\nand\nthat\npertains to both the business of the Receiving Party and the business of the Disclosing Party; (iii) is or becomes a matter of public\nknowledge through no fault of the Receiving Party and other than as a consequence of any unauthorized disclosure, act or omission by\nthe\nReceiving Party or its Representatives; (iv) is lawfully received by the Receiving Party from a Third Party without a duty of\nconfidentiality; (v) is independently developed by the Receiving Party without violating any obligations hereunder; or (vi) is disclosed\nby the Receiving Party with the Disclosing Party's prior written approval.\n(f) "Confidentiality Period" means, (i) with respect to Confidential Information that is not a Trade Secret, five (5) years after the later to\noccur of (A) the Effective Time, and (B) the date of disclosure to the Receiving Party, and (ii) with respect to Trade Secrets, the later to\noccur of (A) the date that is five (5) years after the later to occur of the Effective Time and the date of disclosure to the Receiving Party, and\n(B) the date on which the relevant Trade Secret is no longer a Trade Secret.\n(g) "Customer Data" means all data and information pertaining to any customer of a Disclosing Party and submitted to the Receiving\nParty by the Disclosing Party, or received by the Receiving Party on behalf of the Disclosing Party.\n(h) "DisclosingParty means the party disclosing the relevant Confidential Information.\n(i) "Distribution Agreement" has the meaning set forth in the recitals to this Agreement.\n(j) "Effective Time" has the meaning set forth in the Distribution Agreement.\n(k) "Express Purpose" means: (i) with respect to the Receiving Party or any of its Representatives, to perform or assist the Receiving\nParty to perform its obligations and exercise its rights under any of the Transaction Agreements, (ii) with respect to the Receiving Party or\nany of its Representatives, to perform or assist the Receiving Party to\n2\nperform its obligations and exercise its rights under any of the Commercial Agreements and (iii) with respect to a sublicensee permitted\nunder a Transaction Agreement or Commercial Agreement, to exercise its rights under such Transaction Agreement or Commercial\nAgreement.\n(1) "Person" means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust,\na joint venture, an unincorporated organization, and a governmental entity or any department, agency or political subdivision thereof.\n(m) "ReceivingPart means the recipient of the relevant Confidential Information.\n(n) "Representatives" has the meaning set forth in Section 2.2 of this Agreement.\n(o) "Restricted Assignment Period" has the meaning given to it in the Distribution Agreement.\n(p) "Subsidiary." has the meaning given to it in the Distribution Agreement.\n(q) "Synovus" has the meaning set forth in the preamble to this Agreement.\n(r) "Third Party." means a Person other than Synovus and its Representatives and TSYS and its Representatives.\n(s) "Trade Secret" has the meaning given to it in the Georgia Trade Secrets Act, O.C.G.A. 8 10-1-761.\n(t) "Transaction Agreements" means the Distribution Agreement and the Ancillary Agreements.\n(u) "TSYS" has the meaning set forth in the preamble to this Agreement.\nARTICLE II\nCONFIDENTIALITY\nSection 2.1 Confidentiality and Non-Use Obligations. During the Confidentiality Period, the Receiving Party shall (i) protect the\nConfidential Information of the Disclosing Party by using the same degree of care, but no less than a reasonable degree of care, including the\nutilization of security devices or procedures designed to prevent unauthorized access to such materials, to prevent the unauthorized use,\ndissemination, or publication of the Confidential Information as the Receiving Party uses to protect its own confidential information of a like\nnature, (ii) not use such Confidential Information in violation of any use restriction in this Agreement, the Distribution Agreement or any other\nAncillary Agreement or any applicable Commercial Agreement, (iii) not disclose such Confidential Information to any Third Party, except,\nsubject to applicable law, as expressly permitted under this Agreement, the Distribution Agreement or any other Ancillary Agreement, any\napplicable Commercial Agreement or in any other agreements entered into between the parties in writing, without the prior written consent of the\nDisclosing Party and (iv) not use the Confidential Information to the commercial or competitive disadvantage of the Disclosing Party. Each party\nshall instruct its officers,\n3\nemployees, agents, contractors and professional advisors (a) of its confidentiality obligations hereunder and (b) not to attempt to circumvent any\nsuch security procedures and devices. Each party's obligation under the preceding sentence may be satisfied by the use of its standard form of\nconfidentiality agreement, if the same reasonably accomplishes the purposes here intended.\nSection 2.2 Use and Disclosure. The Receiving Party may use the Confidential Information solely for the Express Purpose and disclose the\nConfidential Information to its directors, officers, employees, professional advisors, agents, contractors, Affiliated Companies and Subsidiaries,\nand their respective directors, officers, employees, agents, contractors and sublicensees (collectively, "Representatives") solely where such\ndisclosure is reasonably necessary for the Express Purpose, and provided that the Receiving Party may also disclose the Confidential Information\nto\nits\nsublicensees\nonly\nif\npermitted\nto\ndo\nso\nunder\na\nTransaction\nAgreement\nor\nan\napplicable\nCommercial\nAgreement.\nThe\nReceiving\nParty's\ndisclosure to its Representatives shall be subject to applicable law and the sublicensee's agreement in writing to confidentiality and non-use\nterms at least as protective of the Disclosing Party as the provisions of this Agreement. The Receiving Party shall use commercially reasonable\nefforts to ensure that with regard to its Representatives' use and possession of Confidential Information, such Representatives observe\nconfidentiality obligations at least as protective as those in this Agreement and shall be liable if such Representatives cause a breach of this\nAgreement, and for such Representatives' failure to comply with obligations at least as protective as those in this Agreement. Each Party agrees\nthat (i) disclosure or use of Confidential Information in breach of this Agreement could cause considerable commercial and financial detriment to\nthe Disclosing Party, (ii) damages may be inadequate compensation for breach of this Agreement and (iii) if any Confidential Information is\ndisclosed or used (or threatened to be disclosed or used) in breach of this Agreement, then the Disclosing Party may seek, in addition to any\nother\nremedies available to it, equitable relief (including but not limited to specific performance and injunction).\nSection 2.3 Compelled Disclosure. If the Receiving Party or any of its Representatives believes that it is or will be compelled by a court or\nother\nauthority or the rules of a stock exchange to disclose Confidential Information of the Disclosing Party, it shall (i) give the Disclosing Party\nprompt written notice so that the Disclosing Party may take steps to oppose such disclosure, but in any event the Receiving Party shall not be\nprohibited from complying with such requirement; provided, however, the Receiving Party must disclose, and ensure that the Representative\ndiscloses, only the minimum Confidential Information (as applicable) and (ii) reasonably cooperate with the Disclosing Party in its attempts to\noppose such disclosure, provided that the Disclosing Party first agrees to pay the reasonable costs of the Receiving Party in connection therewith.\nSection 2.4 No Restriction on Disclosing Party. Subject to Section 2.7, nothing in this Agreement shall restrict the Disclosing Party from\nusing, disclosing, or disseminating its own Confidential Information in any way.\nSection 2.5 No Restriction on Reassignment. This Agreement shall not restrict reassignment of the Receiving Party's employees.\n4\nSection 2.6 Third Party Agreements. Nothing in the Agreement supersedes any restriction imposed by Third Parties on their Confidential\nInformation, and there is no obligation on the Disclosing Party to conform Third Party agreements to the terms of this Agreement.\nSection 2.7 Information Security. The Receiving Party of any Customer Data of the Disclosing Party shall be responsible for establishing,\nimplementing, maintaining and performing a reasonable information security program (including physical security of physical items) that is\nreasonably designed to (i) ensure the security and confidentiality of such Customer Data, (ii) protect against any anticipated threats or hazards to\nthe security or integrity of such Customer Data, (iii) protect against unauthorized access to or use of such Customer Data that could result in\nsubstantial material harm to the Disclosing Party or any of its customers and (iv) ensure the proper disposal of such Customer Data. The\nDisclosing Party shall maintain reasonable security for its own systems, servers, and communications links as is reasonably designed to\n(a) protect the security and integrity of its Customer Data to the extent within the Disclosing Party's control, and (b) protect against unauthorized\naccess to or use of the Receiving Party's systems and servers on which Customer Data of the Disclosing Party is stored to the extent within the\nDisclosing Party's control. The Receiving Party will (1) take appropriate action to address any incident of unauthorized access to Customer Data\nof the Disclosing Party and (2) notify the Disclosing Party as soon as possible of any incident of unauthorized access to Customer Data and any\nother breach in the Receiving Party's security that materially affects the Disclosing Party or the Disclosing Party's customers. Either party may\nchange its security procedures from time to time as commercially reasonable to address operations risks and concerns in compliance with the\nrequirements of this section.\nARTICLE III\nWARRANTY DISCLAIMER\nEACH PARTY ACKNOWLEDGES AND AGREES THAT ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN "AS\nIS,\nWHERE IS" BASIS AND THAT NEITHER PARTY NOR ANY OF ITS REPRESENTATIVES HAS MADE OR WILL MAKE ANY\nREPRESENTATION\nOR\nWARRANTY\nWHATSOEVER,\nEXPRESS,\nIMPLIED\nOR\nSTATUTORY,\nINCLUDING,\nWITHOUT\nLIMITATION,\nANY IMPLIED REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,\nENFORCEABILITY OR NON-INFRINGEMENT, OR AS TO THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL\nINFORMATION.\nARTICLE IV\nTERM AND TERMINATION\nSection 4.1 Term. This Agreement shall remain in full force and effect until the earlier to occur of: (i) the expiration of the last\nConfidentiality Period; and (ii) the termination of this Agreement by the mutual written agreement of the parties.\n5\nSection 4.2 Survival. Articles II (with respect to Confidential Information acquired or disclosed prior to the date of termination), III, IV, V, VI\nand VII shall survive any termination of this Agreement.\nSection 4.3 Return of Confidential Information.\n(a) Distribution or Ancillary Agreements With respect to Confidential Information disclosed in connection with the Distribution\nAgreement or any Ancillary Agreement, upon the earlier to occur of: (i) the termination or expiration of this Agreement and (ii) the\ntermination of the Distribution Agreement or the whole or any part of any Ancillary Agreement, the Receiving Party shall (and shall procure\nthat its Affiliated Companies and Representatives shall) promptly but in no event later than thirty (30) days following a request made in\nwriting by the Disclosing Party: (x) return to the Disclosing Party or destroy (at the sole option of the Receiving Party) all Confidential\nInformation of the Disclosing Party in the possession or control of the Receiving Party (including, without limitation, all documents, records,\nnotebooks, data, reports, notes, compilations, computer files, data and programs, and similar repositories or materials and any and all\ncopies\nor\nreproductions thereof), as directed by the Disclosing Party; provided, however (1) the Confidential Information to be so returned or destroyed\nshall be limited to such Confidential Information that is not necessary for the performance by the Receiving Party under any then effective\nCommercial Agreement and (2) in case of a termination of the whole or part of any Ancillary Agreement (other than this Agreement), the\nConfidential Information to be so returned or destroyed shall be limited to such Confidential Information disclosed by the Disclosing Party\nin\nconnection with such terminated Ancillary Agreement, or part thereof, as the case may be; and (y) deliver to the Disclosing Party a certificate\nsigned by a duly authorized officer of the Receiving Party supervising such return and destruction, certifying such return or destruction in\naccordance with the provisions of this Agreement.\n(b) Commercial Agreements. With respect to Confidential Information disclosed in connection with any Commercial Agreement, upon the\ntermination or expiration of such Commercial Agreement, the Receiving Party shall (and shall procure that its Affiliated Companies and\nRepresentatives shall) promptly but in no event later than thirty (30) days following a request made in writing by the Disclosing Party:\n(x) return to the Disclosing Party or destroy (at the sole option of the Receiving Party) Confidential Information of the Disclosing Party in the\npossession or control of the Receiving Party (including, without limitation, all documents, records, notebooks, data, reports, notes,\ncompilations, computer files, data and programs, and similar repositories or materials and any and all copies or reproductions thereof), as\ndirected by the Disclosing Party; provided, however, the Confidential Information to be so returned or destroyed shall be limited to such\nConfidential Information disclosed by the Disclosing Party in connection with such terminated Commercial Agreement and shall not require\nthe destruction of any Confidentia Information necessary for the performance of the Receiving Party under the Distribution Agreement, any\nAncillary Agreement or any other then effective Commercial Agreement; and (y) deliver to the Disclosing Party a certificate signed by a duly\nauthorized officer of the Receiving Party supervising such\n6\nreturn and destruction, certifying such return or destruction in accordance with the provisions of this Agreement.\n(c) Notwithstanding the foregoing provisions of Sections 4.3(a) and (b), the Receiving Party may retain Confidential Information if\nrequired to do so by applicable law, provided that the Receiving Party shall notify the Disclosing Party in writing of such obligation, and\n(A) may not use such retained Confidential Information for any purpose not strictly required to comply with such law, and (B) shall at the\nDisclosing Party's option, return or destroy such retained Confidential Information as soon as practicable after it is no longer required by law\nto retain it.\nARTICLE V\nLIMITATION OF LIABILITY\nIN NO EVENT SHALL EITHER PARTY OR ITS SUBSIDIARIES OR AFFILIATED COMPANIES BE LIABLE TO THE OTHER PARTY\nOR ITS SUBSIDIARIES OR AFFILIATED COMPANIES FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR\nPUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING\nNEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF\nTHE POSSIBILITY OF SUCH DAMAGES.\nARTICLE VI\nMISCELLANEOUS PROVISIONS\nSection 6.1 Dispute Resolution. Any dispute arising out of or relating to the performance, breach or interpretation of this Agreement shall be\nhandled in accordance with Section 5.5 of the Distribution Agreement.\nSection 6.2 Export Restrictions. Both parties shall adhere to all applicable laws, regulations and rules relating to the export of technical data,\nand\nshall not export or reexport any technical data, any products received from Disclosing Party, or the direct product of such technical data, to\nany proscribed country listed in such applicable laws, regulations and rules unless properly authorized.\nSection 6.3 No Implied Licenses. The Receiving Party acknowledges that the Confidential Information is the exclusive property of the\nDisclosing Party, and the Disclosing Party has the exclusive right, title and interest to its Confidential Information. Nothing contained in this\nAgreement shall be construed as conferring any rights by implication, estoppel or otherwise, or under any intellectual property right, other than\nthe\nrights expressly granted in this Agreement, to the Confidential Information. Neither party is required hereunder to furnish or disclose to the\nother any technical or other information.\nSection 6.4 Infringement Suits. Neither party shall have any obligation hereunder to institute any action or suit against Third Parties for\nmisappropriation of any of its Confidentia Information or to defend any action or suit brought by a Third Party that alleges infringement of\n7\nany intellectual property rights by the Receiving Party's authorized use of the Disclosing Party's Confidential Information.\nSection 6.5 Entire Agreement. This Agreement, the Distribution Agreement, the other Ancillary Agreements, and the Commercial\nAgreements constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all prior written and\noral and all contemporaneous oral agreements and understandings with respect to the subject matter hereof. Notwithstanding the foregoing, the\nparties agree that any agreements entered into between them after the Effective Time for the protection of specific Confidential Information shall\nsupersede the terms of this Agreement with respect to such Confidential Information.\nSection 6.6 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of\nGeorgia as to all matters regardless of the laws that might otherwise govern under principles of conflicts of laws applicable thereto.\nSection 6.7 Descriptive Headings. The descriptive headings herein are inserted for convenience of reference only and are not intended to\nbe\npart of or to affect the meaning or interpretation of this Agreement.\nSection 6.8 Notices. All notices and other communications hereunder shall be in writing and shall be deemed effectively given the earlier of\n(i) when received, (ii) when delivered personally, (iii) one (1) Business Day after being delivered by facsimile (with receipt of appropriate\nconfirmation) or (iv) one (1) Business Day after being deposited with an overnight courier service and addressed to the respective parties as\nfollows:\nif to Synovus:\nSynovus Financial Corp.\n1111 Bay Avenue\nSuite 500\nColumbus, GA 31901\nAttention: Chief Financial Officer\nTelecopy: (706) 649-4819\nif to TSYS:\nTotal System Services, Inc.\n1600 First Avenue\nColumbus, GA 31901\nAttention: Chief Financial Officer\nTelecopy: (706) 644-1725\nor to such other address as a party may request by notifying the other in writing. As used in this Section 6.8, "Business Day." means any day\nother than a Saturday, a Sunday or a day on which banking institutions located in the city of Columbus, Georgia are authorized or obligated by\nlaw or executive order to close.\n8\nSection 6.9 Assignment. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective legal\nrepresentatives and successors, and nothing in this Agreement, express or implied, is intended to confer upon any other Person any rights or\nremedies of any nature whatsoever under or by reason of this Agreement; provided, however, except as otherwise expressly provided for in\nthis\nAgreement, this Agreement shall not be assignable, in whole or in part, by any party without the prior written consent of the other party, and any\nattempt to assign any rights or obligations arising under this Agreement without such consent shall be null and void; provided further, that a party\nmay assign this Agreement in connection with: (i) a merger transaction in which such party is not the surviving entity or (ii) the sale, transfer,\nexchange or other disposition by such party of all or substantially all of its assets, so long as, in either case, if such merger or asset sale\ntransaction occurs during the Restricted Assignment Period, the rating of the assignee, following the consummation of such merger or asset sale\ntransaction, shall be BBB- or better from Standard & Poor's and Baa3 or better from Moody's Investor Services, Inc. (or if Standard & Poor's or\nMoody's Investor Services, Inc. shall change their rating designations after the date of this Agreement, a comparable rating or better under such\nnew\ndesignations), and upon the effectiveness of any such valid assignment the assigning party shall be released from all of its obligations under\nthis Agreement if the surviving entity of such merger or the transferee of such assets shall agree in writing, in form and substance reasonably\nsatisfactory to the other party, to be bound by the terms of this Agreement as if named as a "party" hereto. The Receiving Party's assignment\nof\nthis Agreement shall not relieve it of any of its obligations hereunder.\nSection 6.10 Severability. If any term or other provision of this Agreement is determined by a nonappealable decision of a court,\nadministrative agency or binding arbitrator by any court or in any binding arbitration to be invalid, illegal or incapable of being enforced by any\nrule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the\neconomic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either party. Upon such\ndetermination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith\nto\nmodify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the\ntransactions contemplated hereby are fulfilled to the fullest extent possible\nSection\n6.11\nFailure\nor\nIndulgence\nnot\nWaiver;\nRemedies\nCumulative.\nNo\nfailure\nor\ndelay\non\nthe\npart\nof\neither\nparty\nhereto\nin\nthe\nexercise\nof any right hereunder shall impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or\nagreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. All\nrights and remedies existing under this Agreement are cumulative to, and not exclusive of, any rights or remedies otherwise available.\nSection 6.12 Amendment. No change or amendment will be made to this Agreement except by an instrument in writing signed on behalf of\neach of the parties to such agreement.\nSection 6.13 Counterparts. This Agreement may be executed in two or more counterparts, all of which, taken together, shall be considered\nto be one and the same instrument.\n9\nSection 6.14 Existing Agreements. Notwithstanding anything to the contrary in this Agreement, Confidential Information shall not include,\nand this Agreement shall not in any way apply to, any confidential information exchanged pursuant to those agreements between the parties\nand/or their respective Subsidiaries set forth on Schedule A hereto to the extent such agreements contain provisions governing the use and\ndisclosure of confidential information. Those agreements set forth on Schedule A that do not include such a provision are referred to herein as\nthe "Commercial Agreements" and the disclosure and use of confidential information under such Commercial Agreements is governed by the\nterms and conditions of this Agreement.\nSection 6.15 Effectiveness. This Agreement shall become effective upon the Effective Time and prior thereto shall be of no force or effect. If\nthe\nDistribution Agreement shall be terminated in accordance with its terms prior to the occurrence of the Effective Time, this Agreement and\nany actions or agreements contemplated hereby shall automatically be terminated and of no force or effect.\n[Signature page follows]\n10\nWHEREFORE, the parties have signed this Master Confidential Disclosure Agreement effective as of the Effective Time.\nSYNOVUS FINANCIAL CORP.\nTOTAL SYSTEM SERVICES, INC.\nBy:\n/s/ Thomas J. Prescott\nBy:\n/s/ James B. Lipham\nName: Thomas J. Prescott\nName: James B. Lipham\nTitle: Executive Vice President and Chief Financial Officer Title: Senior Executive Vice President and Chief Financial Officer\n[Signature page to Master Confidential Disclosure Agreement]	EX-10.4 6 g10835exv10w4.htm EX-10.4 MASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nExhibit 10.4\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nbetween\nSYNOVUS FINANCIAL CORP.\nand\nTOTAL SYSTEM SERVICES, INC.\nDated November 30, 2007\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nThis MASTER CONFIDENTIAL DISCLOSURE AGREEMENT (this “Agreement”), dated as of November 30, 2007, between Synovus\nFinancial Corp., a Georgia corporation (“Synovus”), and Total System Services, Inc., a Georgia corporation (“TSYS”).\nWHEREAS, Synovus, Columbus Bank and Trust Company and TSYS have entered into an Agreement and Plan of Distribution, dated as of\nOctober 25, 2007 (as the same may be amended from time to time, the “Distribution Agreement”), which provides, subject to the terms and\nconditions in the Distribution Agreement, among other things, for the distribution of the common stock of TSYS held by Synovus as of a certain\ndate to the shareholders of Synovus; and\nWHEREAS, as part of the foregoing, the parties further desire to enter into this Agreement to provide for the protection of their Confidential\nInformation (as defined below).\nNOW, THEREFORE, in consideration of the mutual promises of the parties, and of good and valuable consideration, it is agreed by and\nbetween the parties as follows:\nARTICLE I\nDEFINITIONS\nSection 1.1 Definitions. For the purpose of this Agreement the following capitalized terms are defined in this Section 1.1 and shall have the\nmeaning specified herein:\n(a) “Affiliated Company” means, with respect to Synovus, any entity that, after the Effective Time, directly or indirectly is controlled by, or\nis under common control with, Synovus, other than any Subsidiary of Synovus, and, with respect to TSYS, any entity that, after the Effective\nTime, directly or indirectly is controlled by, or is under common control with TSYS, other than any Subsidiary of TSYS. As used herein,\n“control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such\nentity, whether through the ownership of voting securities or other interests, by contract or otherwise. For the avoidance of doubt, TSYS is not\nan Affiliated Company of Synovus for purposes of this Agreement.\n(b) “Agreement” has the meaning set forth in the preamble to this Agreement.\n(c) “Ancillary Agreements” has the meaning given to it in the Distribution Agreement.\n(d) “Commercial Agreements” has the meaning given to it in Section 6.14.\n(e) “Confidential Information” means, subject to Section 6.14, information, Trade Secrets, technical data and know-how that is not\notherwise in the public domain, that is directly related to the operation of the business of the Disclosing Party and that is either (i) known to or\nin the possession of the Receiving Party as of the Effective Time or (ii) disclosed to the Receiving Party after the Effective Time in connection\nwith the performance under any Transaction Agreement or any Commercial Agreement.\nConfidential Information shall include, with respect to a Disclosing Party, all Customer Data of such Disclosing Party. Confidential\nInformation may include information relating to, by way of example, research, products, services, customers, markets, software,\ndevelopments, inventions, processes, designs, drawings, engineering, marketing or finances, and may be in writing, disclosed orally or learned\nby inspection of computer programming code, equipment or facilities.\n(i) Confidential Information of Third Parties that is known to, in the possession of or acquired by a Receiving Party pursuant to a\nrelationship with the Disclosing Party shall be deemed the Disclosing Party’s Confidential Information for purposes herein.\n(ii) Notwithstanding the foregoing provisions of this Section 1.1(d), Confidential Information shall exclude information that: (i) was\nin the Receiving Party’s lawful possession before receipt from the Disclosing Party and obtained from a source other than the Disclosing\nParty and other than solely through the prior relationship of the Disclosing Party and the Receiving Party before the Effective Time;\n(ii) information that was lawfully possessed by both the Receiving Party and the Disclosing Party prior to the Effective Time and that\npertains to both the business of the Receiving Party and the business of the Disclosing Party; (iii) is or becomes a matter of public\nknowledge through no fault of the Receiving Party and other than as a consequence of any unauthorized disclosure, act or omission by\nthe Receiving Party or its Representatives; (iv) is lawfully received by the Receiving Party from a Third Party without a duty of\nconfidentiality; (v) is independently developed by the Receiving Party without violating any obligations hereunder; or (vi) is disclosed\nby the Receiving Party with the Disclosing Party’s prior written approval.\n(f) “Confidentiality Period” means, (i) with respect to Confidential Information that is not a Trade Secret, five (5) years after the later to\noccur of (A) the Effective Time, and (B) the date of disclosure to the Receiving Party, and (ii) with respect to Trade Secrets, the later to\noccur of (A) the date that is five (5) years after the later to occur of the Effective Time and the date of disclosure to the Receiving Party, and\n(B) the date on which the relevant Trade Secret is no longer a Trade Secret.\n(g) “Customer Data” means all data and information pertaining to any customer of a Disclosing Party and submitted to the Receiving\nParty by the Disclosing Party, or received by the Receiving Party on behalf of the Disclosing Party.\n(h) “Disclosing Party” means the party disclosing the relevant Confidential Information.\n(i) “Distribution Agreement” has the meaning set forth in the recitals to this Agreement.\n(j) “Effective Time” has the meaning set forth in the Distribution Agreement.\n(k) “Express Purpose” means: (i) with respect to the Receiving Party or any of its Representatives, to perform or assist the Receiving\nParty to perform its obligations and exercise its rights under any of the Transaction Agreements, (ii) with respect to the Receiving Party or\nany of its Representatives, to perform or assist the Receiving Party to\n2\nperform its obligations and exercise its rights under any of the Commercial Agreements and (iii) with respect to a sublicensee permitted\nunder a Transaction Agreement or Commercial Agreement, to exercise its rights under such Transaction Agreement or Commercial\nAgreement.\n(l) “Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust,\na joint venture, an unincorporated organization, and a governmental entity or any department, agency or political subdivision thereof.\n(m) “Receiving Party” means the recipient of the relevant Confidential Information.\n(n) “Representatives” has the meaning set forth in Section 2.2 of this Agreement.\n(o) “Restricted Assignment Period” has the meaning given to it in the Distribution Agreement.\n(p) “Subsidiary” has the meaning given to it in the Distribution Agreement.\n(q) “Synovus” has the meaning set forth in the preamble to this Agreement.\n(r) “Third Party” means a Person other than Synovus and its Representatives and TSYS and its Representatives.\n(s) “Trade Secret” has the meaning given to it in the Georgia Trade Secrets Act, O.C .G.A. § 10-1 -761.\n(t) “Transaction Agreements” means the Distribution Agreement and the Ancillary Agreements.\n(u) “TSYS” has the meaning set forth in the preamble to this Agreement.\nARTICLE II\nCONFIDENTIALITY\nSection 2.1 Confidentiality and Non-Use Obligations. During the Confidentiality Period, the Receiving Party shall (i) protect the\nConfidential Information of the Disclosing Party by using the same degree of care, but no less than a reasonable degree of care, including the\nutilization of security devices or procedures designed to prevent unauthorized access to such materials, to prevent the unauthorized use,\ndissemination, or publication of the Confidential Information as the Receiving Party uses to protect its own confidential information of a like\nnature, (ii) not use such Confidential Information in violation of any use restriction in this Agreement, the Distribution Agreement or any other\nAncillary Agreement or any applicable Commercial Agreement, (iii) not disclose such Confidential Information to any Third Party, except,\nsubject to applicable law, as expressly permitted under this Agreement, the Distribution Agreement or any other Ancillary Agreement, any\napplicable Commercial Agreement or in any other agreements entered into between the parties in writing, without the prior written consent of the\nDisclosing Party and (iv) not use the Confidential Information to the commercial or competitive disadvantage of the Disclosing Party. Each party\nshall instruct its officers,\n3\nemployees, agents, contractors and professional advisors (a) of its confidentiality obligations hereunder and (b) not to attempt to circumvent any\nsuch security procedures and devices. Each party’s obligation under the preceding sentence may be satisfied by the use of its standard form of\nconfidentiality agreement, if the same reasonably accomplishes the purposes here intended.\nSection 2.2 Use and Disclosure. The Receiving Party may use the Confidential Information solely for the Express Purpose and disclose the\nConfidential Information to its directors, officers, employees, professional advisors, agents, contractors, Affiliated Companies and Subsidiaries,\nand their respective directors, officers, employees, agents, contractors and sublicensees (collectively, “Representatives”) solely where such\ndisclosure is reasonably necessary for the Express Purpose, and provided that the Receiving Party may also disclose the Confidential Information\nto its sublicensees only if permitted to do so under a Transaction Agreement or an applicable Commercial Agreement. The Receiving Party’s\ndisclosure to its Representatives shall be subject to applicable law and the sublicensee’s agreement in writing to confidentiality and non-use\nterms at least as protective of the Disclosing Party as the provisions of this Agreement. The Receiving Party shall use commercially reasonable\nefforts to ensure that with regard to its Representatives’ use and possession of Confidential Information, such Representatives observe\nconfidentiality obligations at least as protective as those in this Agreement and shall be liable if such Representatives cause a breach of this\nAgreement, and for such Representatives’ failure to comply with obligations at least as protective as those in this Agreement. Each Party agrees\nthat (i) disclosure or use of Confidential Information in breach of this Agreement could cause considerable commercial and financial detriment to\nthe Disclosing Party, (ii) damages may be inadequate compensation for breach of this Agreement and (iii) if any Confidential Information is\ndisclosed or used (or threatened to be disclosed or used) in breach of this Agreement, then the Disclosing Party may seek, in addition to any other\nremedies available to it, equitable relief (including but not limited to specific performance and injunction).\nSection 2.3 Compelled Disclosure. If the Receiving Party or any of its Representatives believes that it is or will be compelled by a court or\nother authority or the rules of a stock exchange to disclose Confidential Information of the Disclosing Party, it shall (i) give the Disclosing Party\nprompt written notice so that the Disclosing Party may take steps to oppose such disclosure, but in any event the Receiving Party shall not be\nprohibited from complying with such requirement; provided, however, the Receiving Party must disclose, and ensure that the Representative\ndiscloses, only the minimum Confidential Information (as applicable) and (ii) reasonably cooperate with the Disclosing Party in its attempts to\noppose such disclosure, provided that the Disclosing Party first agrees to pay the reasonable costs of the Receiving Party in connection therewith.\nSection 2.4 No Restriction on Disclosing Party. Subject to Section 2.7, nothing in this Agreement shall restrict the Disclosing Party from\nusing, disclosing, or disseminating its own Confidential Information in any way.\nSection 2.5 No Restriction on Reassignment. This Agreement shall not restrict reassignment of the Receiving Party’s employees.\n4\nSection 2.6 Third Party Agreements. Nothing in the Agreement supersedes any restriction imposed by Third Parties on their Confidential\nInformation, and there is no obligation on the Disclosing Party to conform Third Party agreements to the terms of this Agreement.\nSection 2.7 Information Security. The Receiving Party of any Customer Data of the Disclosing Party shall be responsible for establishing,\nimplementing, maintaining and performing a reasonable information security program (including physical security of physical items) that is\nreasonably designed to (i) ensure the security and confidentiality of such Customer Data, (ii) protect against any anticipated threats or hazards to\nthe security or integrity of such Customer Data, (iii) protect against unauthorized access to or use of such Customer Data that could result in\nsubstantial material harm to the Disclosing Party or any of its customers and (iv) ensure the proper disposal of such Customer Data. The\nDisclosing Party shall maintain reasonable security for its own systems, servers, and communications links as is reasonably designed to\n(a) protect the security and integrity of its Customer Data to the extent within the Disclosing Party’s control, and (b) protect against unauthorized\naccess to or use of the Receiving Party’s systems and servers on which Customer Data of the Disclosing Party is stored to the extent within the\nDisclosing Party’s control. The Receiving Party will (1) take appropriate action to address any incident of unauthorized access to Customer Data\nof the Disclosing Party and (2) notify the Disclosing Party as soon as possible of any incident of unauthorized access to Customer Data and any\nother breach in the Receiving Party’s security that materially affects the Disclosing Party or the Disclosing Party’s customers. Either party may\nchange its security procedures from time to time as commercially reasonable to address operations risks and concerns in compliance with the\nrequirements of this section.\nARTICLE III\nWARRANTY DISCLAIMER\nEACH PARTY ACKNOWLEDGES AND AGREES THAT ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN “AS IS,\nWHERE IS” BASIS AND THAT NEITHER PARTY NOR ANY OF ITS REPRESENTATIVES HAS MADE OR WILL MAKE ANY\nREPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION,\nANY IMPLIED REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,\nENFORCEABILITY OR NON-INFRINGEMENT, OR AS TO THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL\nINFORMATION.\nARTICLE IV\nTERM AND TERMINATION\nSection 4.1 Term. This Agreement shall remain in full force and effect until the earlier to occur of: (i) the expiration of the last\nConfidentiality Period; and (ii) the termination of this Agreement by the mutual written agreement of the parties.\n5\nSection 4.2 Survival. Articles II (with respect to Confidential Information acquired or disclosed prior to the date of termination), III, IV, V, VI\nand VII shall survive any termination of this Agreement.\nSection 4.3 Return of Confidential Information.\n(a) Distribution or Ancillary Agreements. With respect to Confidential Information disclosed in connection with the Distribution\nAgreement or any Ancillary Agreement, upon the earlier to occur of: (i) the termination or expiration of this Agreement and (ii) the\ntermination of the Distribution Agreement or the whole or any part of any Ancillary Agreement, the Receiving Party shall (and shall procure\nthat its Affiliated Companies and Representatives shall) promptly but in no event later than thirty (30) days following a request made in\nwriting by the Disclosing Party: (x) return to the Disclosing Party or destroy (at the sole option of the Receiving Party) all Confidential\nInformation of the Disclosing Party in the possession or control of the Receiving Party (including, without limitation, all documents, records,\nnotebooks, data, reports, notes, compilations, computer files, data and programs, and similar repositories or materials and any and all copies or\nreproductions thereof), as directed by the Disclosing Party; provided, however, (1) the Confidential Information to be so returned or destroyed\nshall be limited to such Confidential Information that is not necessary for the performance by the Receiving Party under any then effective\nCommercial Agreement and (2) in case of a termination of the whole or part of any Ancillary Agreement (other than this Agreement), the\nConfidential Information to be so returned or destroyed shall be limited to such Confidential Information disclosed by the Disclosing Party in\nconnection with such terminated Ancillary Agreement, or part thereof, as the case may be; and (y) deliver to the Disclosing Party a certificate\nsigned by a duly authorized officer of the Receiving Party supervising such return and destruction, certifying such return or destruction in\naccordance with the provisions of this Agreement.\n(b) Commercial Agreements. With respect to Confidential Information disclosed in connection with any Commercial Agreement, upon the\ntermination or expiration of such Commercial Agreement, the Receiving Party shall (and shall procure that its Affiliated Companies and\nRepresentatives shall) promptly but in no event later than thirty (30) days following a request made in writing by the Disclosing Party:\n(x) return to the Disclosing Party or destroy (at the sole option of the Receiving Party) Confidential Information of the Disclosing Party in the\npossession or control of the Receiving Party (including, without limitation, all documents, records, notebooks, data, reports, notes,\ncompilations, computer files, data and programs, and similar repositories or materials and any and all copies or reproductions thereof), as\ndirected by the Disclosing Party; provided, however, the Confidential Information to be so returned or destroyed shall be limited to such\nConfidential Information disclosed by the Disclosing Party in connection with such terminated Commercial Agreement and shall not require\nthe destruction of any Confidential Information necessary for the performance of the Receiving Party under the Distribution Agreement, any\nAncillary Agreement or any other then effective Commercial Agreement; and (y) deliver to the Disclosing Party a certificate signed by a duly\nauthorized officer of the Receiving Party supervising such\n6\nreturn and destruction, certifying such return or destruction in accordance with the provisions of this Agreement.\n(c) Notwithstanding the foregoing provisions of Sections 4.3(a) and (b), the Receiving Party may retain Confidential Information if\nrequired to do so by applicable law, provided that the Receiving Party shall notify the Disclosing Party in writing of such obligation, and\n(A) may not use such retained Confidential Information for any purpose not strictly required to comply with such law, and (B) shall at the\nDisclosing Party’s option, return or destroy such retained Confidential Information as soon as practicable after it is no longer required by law\nto retain it.\nARTICLE V\nLIMITATION OF LIABILITY\nIN NO EVENT SHALL EITHER PARTY OR ITS SUBSIDIARIES OR AFFILIATED COMPANIES BE LIABLE TO THE OTHER PARTY\nOR ITS SUBSIDIARIES OR AFFILIATED COMPANIES FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR\nPUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING\nNEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF\nTHE POSSIBILITY OF SUCH DAMAGES.\nARTICLE VI\nMISCELLANEOUS PROVISIONS\nSection 6.1 Dispute Resolution. Any dispute arising out of or relating to the performance, breach or interpretation of this Agreement shall be\nhandled in accordance with Section 5.5 of the Distribution Agreement.\nSection 6.2 Export Restrictions. Both parties shall adhere to all applicable laws, regulations and rules relating to the export of technical data,\nand shall not export or reexport any technical data, any products received from Disclosing Party, or the direct product of such technical data, to\nany proscribed country listed in such applicable laws, regulations and rules unless properly authorized.\nSection 6.3 No Implied Licenses. The Receiving Party acknowledges that the Confidential Information is the exclusive property of the\nDisclosing Party, and the Disclosing Party has the exclusive right, title and interest to its Confidential Information. Nothing contained in this\nAgreement shall be construed as conferring any rights by implication, estoppel or otherwise, or under any intellectual property right, other than\nthe rights expressly granted in this Agreement, to the Confidential Information. Neither party is required hereunder to furnish or disclose to the\nother any technical or other information.\nSection 6.4 Infringement Suits. Neither party shall have any obligation hereunder to institute any action or suit against Third Parties for\nmisappropriation of any of its Confidential Information or to defend any action or suit brought by a Third Party that alleges infringement of\n7\nany intellectual property rights by the Receiving Party’s authorized use of the Disclosing Party’s Confidential Information.\nSection 6.5 Entire Agreement. This Agreement, the Distribution Agreement, the other Ancillary Agreements, and the Commercial\nAgreements constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all prior written and\noral and all contemporaneous oral agreements and understandings with respect to the subject matter hereof. Notwithstanding the foregoing, the\nparties agree that any agreements entered into between them after the Effective Time for the protection of specific Confidential Information shall\nsupersede the terms of this Agreement with respect to such Confidential Information.\nSection 6.6 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of\nGeorgia as to all matters regardless of the laws that might otherwise govern under principles of conflicts of laws applicable thereto.\nSection 6.7 Descriptive Headings. The descriptive headings herein are inserted for convenience of reference only and are not intended to be\npart of or to affect the meaning or interpretation of this Agreement.\nSection 6.8 Notices. All notices and other communications hereunder shall be in writing and shall be deemed effectively given the earlier of\n(i) when received, (ii) when delivered personally, (iii) one (1) Business Day after being delivered by facsimile (with receipt of appropriate\nconfirmation) or (iv) one (1) Business Day after being deposited with an overnight courier service and addressed to the respective parties as\nfollows:\nif to Synovus:\nSynovus Financial Corp.\n1111 Bay Avenue\nSuite 500\nColumbus, GA 31901\nAttention: Chief Financial Officer\nTelecopy: (706) 649-4819\nif to TSYS:\nTotal System Services, Inc.\n1600 First Avenue\nColumbus, GA 31901\nAttention: Chief Financial Officer\nTelecopy: (706) 644-1725\nor to such other address as a party may request by notifying the other in writing. As used in this Section 6.8, “Business Day” means any day\nother than a Saturday, a Sunday or a day on which banking institutions located in the city of Columbus, Georgia are authorized or obligated by\nlaw or executive order to close.\n8\nSection 6.9 Assignment. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective legal\nrepresentatives and successors, and nothing in this Agreement, express or implied, is intended to confer upon any other Person any rights or\nremedies of any nature whatsoever under or by reason of this Agreement; provided, however, except as otherwise expressly provided for in this\nAgreement, this Agreement shall not be assignable, in whole or in part, by any party without the prior written consent of the other party, and any\nattempt to assign any rights or obligations arising under this Agreement without such consent shall be null and void; provided further, that a party\nmay assign this Agreement in connection with: (i) a merger transaction in which such party is not the surviving entity or (ii) the sale, transfer,\nexchange or other disposition by such party of all or substantially all of its assets, so long as, in either case, if such merger or asset sale\ntransaction occurs during the Restricted Assignment Period, the rating of the assignee, following the consummation of such merger or asset sale\ntransaction, shall be BBB- or better from Standard & Poor’s and Baa3 or better from Moody’s Investor Services, Inc. (or if Standard & Poor ’s or\nMoody’s Investor Services, Inc. shall change their rating designations after the date of this Agreement, a comparable rating or better under such\nnew designations), and upon the effectiveness of any such valid assignment the assigning party shall be released from all of its obligations under\nthis Agreement if the surviving entity of such merger or the transferee of such assets shall agree in writing, in form and substance reasonably\nsatisfactory to the other party, to be bound by the terms of this Agreement as if named as a “party” hereto. The Receiving Party’s assignment of\nthis Agreement shall not relieve it of any of its obligations hereunder.\nSection 6.10 Severability. If any term or other provision of this Agreement is determined by a nonappealable decision of a court,\nadministrative agency or binding arbitrator by any court or in any binding arbitration to be invalid, illegal or incapable of being enforced by any\nrule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the\neconomic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either party. Upon such\ndetermination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to\nmodify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the\ntransactions contemplated hereby are fulfilled to the fullest extent possible.\nSection 6.11 Failure or Indulgence not Waiver; Remedies Cumulative. No failure or delay on the part of either party hereto in the exercise\nof any right hereunder shall impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or\nagreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. All\nrights and remedies existing under this Agreement are cumulative to, and not exclusive of, any rights or remedies otherwise available.\nSection 6.12 Amendment. No change or amendment will be made to this Agreement except by an instrument in writing signed on behalf of\neach of the parties to such agreement.\nSection 6.13 Counterparts. This Agreement may be executed in two or more counterparts, all of which, taken together, shall be considered\nto be one and the same instrument.\n9\nSection 6.14 Existing Agreements. Notwithstanding anything to the contrary in this Agreement, Confidential Information shall not include,\nand this Agreement shall not in any way apply to, any confidential information exchanged pursuant to those agreements between the parties\nand/or their respective Subsidiaries set forth on Schedule A hereto to the extent such agreements contain provisions governing the use and\ndisclosure of confidential information. Those agreements set forth on Schedule A that do not include such a provision are referred to herein as\nthe “Commercial Agreements” and the disclosure and use of confidential information under such Commercial Agreements is governed by the\nterms and conditions of this Agreement.\nSection 6.15 Effectiveness. This Agreement shall become effective upon the Effective Time and prior thereto shall be of no force or effect. If\nthe Distribution Agreement shall be terminated in accordance with its terms prior to the occurrence of the Effective Time, this Agreement and\nany actions or agreements contemplated hereby shall automatically be terminated and of no force or effect.\n[Signature page follows]\n10\nWHEREFORE, the parties have signed this Master Confidential Disclosure Agreement effective as of the Effective Time.\nSYNOVUS FINANCIAL CORP.\nTOTAL SYSTEM SERVICES, INC.\nBy: /s/ Thomas J. Prescott\nBy: /s/ James B. Lipham\nName: Thomas J. Prescott\nName: James B. Lipham\nTitle: Executive Vice President and Chief Financial Officer Title: Senior Executive Vice President and Chief Financial Officer\n[Signature page to Master Confidential Disclosure Agreement]
+ca0b075430f1d0f830c5fb90bbaef1cc.pdf	effective_date jurisdiction party term	EX-10 .28R 5 ex1028r_formofnoncompetiti.htm EXHIBIT\nExhibit 10.28r\nNON-COMPETITION AND CONFIDENTIALITY COVENANTS\nTHIS INSTRUMENT is made and given this ___ day of _________ 2014 by __________(“Participant”) to and for\nthe benefit of Tiffany and Company, a New York corporation and its Affiliates (as defined below) with reference to the\nfollowing facts and circumstances:\nA.\nParticipant wishes to receive Equity Awards which might be granted to Participant in the future or which have\nbeen granted to Participant on the condition that Participant executes and delivers this instrument;\nB.\nParticipant wishes to have Excess DCRB Contributions made on his behalf by Tiffany pursuant to the terms\nof the Deferral Plan;\nC.\nParticipant is willing to make the promises set forth in this instrument, and to execute and deliver this\ninstrument, in order to be eligible to (i) receive Equity Awards in the future and to have the benefit of Equity\nAwards which have been granted to Participant on the condition that Participant executes and delivers this\ninstrument and (ii) to have the benefit of Excess DCRB Contributions;\nD.\nParticipant understands that Equity Awards and any Excess DCRB Contributions and Investment Fund\nperformance credited to such contributions in a Participant’s Deferred Benefit Accounts may be forfeited if\nParticipant breaches the covenants contained in this instrument;\nE.\nParticipant understands that the Proceeds of Equity Awards may become due and payable by Participant to\nTiffany and Company if Participant breaches the covenants contained in this instrument;\nF.\nParticipant agrees that the receipt of one or more Equity Awards is full and fair and consideration for the\ncovenants made in this instrument.\nNOW THEREFORE, Participant hereby agrees as follows:\n1. Defined Terms. The initially capitalized words and phrases set forth below shall have the meanings ascribed to them\nbelow:\n“Affiliate” shall mean, with reference to any Person, any second Person that controls, is controlled by, or is under\ncommon control with, any such first Person, directly or indirectly.\n“Board” means the board of directors of Tiffany and Company, a New York corporation.\n“Cause” means a termination of Participant’s employment, involuntary on Participant’s part, which is the result of:\n(i)\nParticipant’s conviction or plea of no contest to a felony involving financial impropriety or a felony which\nwould tend to subject the Company or any of its Affiliates to public criticism or materially interfere with\nParticipant’s continued service to the Company or its Affiliate;\n(ii) Participant’s willful and unauthorized disclosure of material Confidential Information which disclosure\nactually results in substantive harm to the Company’s or its Affiliate’s business or puts such business at an\nactual competitive disadvantage;\n(iii) Participant’s willful failure or refusal to perform substantially all such proper and achievable directives\nissued by Participant’s superior (other than: (A) any such failure resulting from Participant’s incapacity\ndue to physical or mental illness, or (B) any such refusal made by Participant in good faith because\nParticipant believes such directives to be illegal, unethical or immoral) after a written demand for\nsubstantial performance is delivered to Participant on behalf of Company, which demand specifically\nidentifies the manner in which Participant has not substantially performed Participant’s duties, and which\nperformance is not substantially corrected by Participant within ten (10) days of receipt of such demand;\n(iv) Participant’s commission of any willful act which is intended by Participant to result in his personal\nenrichment at the expense of the Company or any of its Affiliates, or which could reasonably be expected\nby him to materially injure the reputation, business or business relationships of the Company or any of its\nAffiliates;\n(v) A theft, fraud or embezzlement perpetrated by Participant upon Company or any of its Affiliates.\n“Change in Control” means a change in control of Parent of a nature that would be required to be reported in response to\nItem 6(e) of Schedule 14A of Regulation 14A promulgated under the Exchange Act, whether or not Parent is then\nsubject to such reporting requirement; provided, however, that, anything in this Agreement to the contrary\nnotwithstanding, a Change in Control shall be deemed to have occurred if:\n(i)\nany Person, or any syndicate or group deemed to be a person under Section 14(d)(2) of the Exchange Act,\nexcluding Parent or any of its Affiliates, a trustee or any fiduciary holding securities under an employee\nbenefit plan of Parent or any of its Affiliates, an underwriter temporarily holding securities pursuant to an\noffering of such securities or a\n2\ncorporation owned, directly or indirectly by stockholders of Parent in substantially the same proportion as\ntheir ownership of Parent, is or becomes the “beneficial owner” (as defined in Rule 13d-3 of the General\nRules and Regulations under the Exchange Act), directly or indirectly, of securities of Parent representing\nThirty-five percent (35%) or more of the combined voting power of Parent’s then outstanding securities\nentitled to vote in the election of directors of Parent;\n(ii) ten (10) days following the “Shares Acquisition Date” if any Person has in fact become and then remains\nan “Acquiring Person” under the Rights Plan;\n(iii) if the Parent Board should resolve to redeem the “Rights” under the Rights Plan in response to a proposal\nby any Person to acquire, directly or indirectly, securities of Parent representing Fifteen percent (15%) or\nmore of the combined voting power of Parent’s then outstanding securities entitled to vote in the election\nof directors of Parent;\n(iv) if the Incumbent Directors cease to constitute a majority of the Parent Board; provided, however, that no\nperson shall be deemed an Incumbent Director if he or she was appointed or elected to the Parent Board\nafter having been designated to serve on the Parent Board by a Person who has entered into an agreement\nwith Parent to effect a transaction described in clauses (i), (iii), (v), (vi), (vii), (viii) or (ix) of this\ndefinition;\n(v)\nthere occurs a reorganization, merger, consolidation or other corporate transaction involving Parent, in\neach case with respect to which the stockholders of Parent immediately prior to such transaction do not,\nimmediately after such transaction, own more than Fifty percent (50%) of the combined voting power of\nthe Parent or other corporation resulting from such transaction, as the case may be;\n(vi) all or substantially all of the assets of Parent are sold, liquidated or distributed, except to an Affiliate of\nParent;\n(vii) all or substantially all of the assets of Tiffany and Company are sold, liquidated or distributed, except to\nan Affiliate of Parent;\n(viii) any Person, or any syndicate or group deemed to be a person under Section 14(d)(2) of the Exchange Act,\nexcluding Parent or any of its Affiliates, a trustee or any fiduciary holding securities under an employee\nbenefit plan of Parent or any of its Affiliates, an underwriter temporally holding securities pursuant to an\noffering of such securities or a corporation owned, directly or indirectly by stockholders of Parent in\nsubstantially the same proportion as their ownership of Parent, is or becomes the “beneficial owner” (as\ndefined in Rule 13d-3 of the General\n3\nRules and Regulations under the Exchange Act), directly or indirectly, of securities of Tiffany and\nCompany representing Fifty percent (50%) or more of the combined voting power of Tiffany and\nCompany’s then outstanding securities entitled to vote in the election of directors of Tiffany and\nCompany; or\n(ix) there is a “change of control” or a “change in the effective control” of Parent within the meaning of\nSection 280G of the Code and the Regulations.\n“Change in Control Date” shall mean the date on which a Change of Control occurs.\n“Confidential Information” means all information relating in any manner to Tiffany or its business, including but not\nlimited to, contemplated new products and services, marketing and advertising campaigns, sales projections, creative\ncampaigns and themes, financial information, budgets and projections, system designs, employees, management\nprocedures and systems, employee training materials, equipment, production plans and techniques, product and materials\nspecifications, product designs and design techniques, client information (including purchase history and client\nidentifying information) and vendor information (including the identity of vendors and information concerning the\ncapacity of or products or pricing provided by specific vendors); notwithstanding the foregoing, “Confidential\nInformation” shall not include information that becomes generally publicly available other than as a result of a disclosure\nby Participant or that becomes available to Participant on a non-confidential basis from a Person that to the Participant’s\nknowledge, after due inquiry, is not bound by a duty of confidentiality.\n“Covered Employee” means any person who, at any date relevant to this Agreement, is an employee of Tiffany or who\nwas an employee of Tiffany during the one-year period previous to the date relevant to this Agreement.\n“Deferral Plan” means the Tiffany and Company Amended and Restated Executive Deferral Plan as it may be further\namended from time to time.\n“Deferred Benefit Accounts” means Deferred Benefit Accounts under the Deferral Plan.\n“Duration of Non-Competition Covenant” means the period beginning with Participant’s Termination Date and ending\nupon the first to occur of the following: (i) the second year anniversary of Participant’s Termination Date, (ii)\nParticipant’s Change of Control Date or (iii) Participant’s 60th birthday provided that, in no circumstance shall the\nDuration of this Covenant be less than six months.\n“Equity Awards” means any grant of options to purchase, restricted shares of, stock units that may be settled in, or stock\nappreciation rights that may be measured by appreciation in the value of, the Common Stock of Tiffany & Co., a\nDelaware corporation, including any grants made under the terms of the 1998 Employee Incentive Plan or any plan\n4\nadopted by Tiffany & Co. subsequent to the date of this instrument including grants made both before and after the date\nof this instrument.\n“Excess DCRB Contributions” means the contribution described in Sections 3.3 and 3.4 of the Deferral Plan.\n“Investment Fund” shall have the meaning ascribed to that term in the Deferral Plan.\n“Jewelry” means jewelry (including but not limited to precious metal or silver jewelry or jewelry containing gemstones)\nand watches.\n“Parent” means Tiffany & Co., a Delaware corporation.\n“Person” means any individual, firm, corporation, partnership, limited partnership, limited liability partnership, business\ntrust, limited liability company, unincorporated association or other entity, and shall include any successor (by merger or\notherwise) of such entity.\n“Proceeds of Equity Award” means, in U.S . dollars, (i) with respect to an Equity Award of restricted stock or stock units,\nthe value the shares on the date the Equity Award vests, and, (ii) with respect to an Equity Award that is an option to\npurchase or a stock appreciation right, the spread between the strike price and the market value for the underlying shares\non the exercise date, in each of cases (i) and (ii) measured by the simple average of the high and low selling prices on the\nprincipal market on which the shares are traded as of vesting or exercise date, as the case may be, if such vesting or\nexercise date is a trading date; if such vesting or exercise date is not a trading date, then as of trading date next following\nthe vesting or exercise date.\n“Normal Retirement Age” means the later of (i) Participant’s 65th birthday or (ii) the 5th anniversary from his date of\nhire.\n“Retail Jewelry Trade” means the operation of one or more retail outlets (including stores-within-stores, leased\ndepartments or concessions) selling Jewelry in any city in the world in which a TIFFANY & CO. store is located at the\ntime in question; for the purpose of this definition, a retail outlet will not be deemed engaged in the Retail Jewelry Trade\nif less than 5% of the items displayed for sale in such outlet are Jewelry, so that, by way of example, an apparel store that\noffers Jewelry as an incidental item would not be deemed engaged in the Retail Jewelry Trade.\n“Rights Plan” means the Amended and Restated Rights Agreement Dated as of September 22, 1998 by and between\nTiffany & Co., a Delaware corporation, and ChaseMellon Shareholder Services L.L .C ., as Rights Agent, as such\nAgreement may be further amended from time to time.\n5\n“Termination Date” means the date Participant ceases to be an employee of Tiffany or its Affiliate.\n“Tiffany” means Tiffany and Company, a New York corporation, and if the context so requires, Tiffany and Company\nand/or any Affiliate of Tiffany and Company, such term to be interpreted broadly so as to give rights equivalent to\nTiffany and Company to any Affiliate of Tiffany and Company.\n“Wholesale Jewelry Trade” means the sale of Jewelry or gemstones to the Retail Jewelry Trade, the development or\ndesign of Jewelry for sale to the Retail Jewelry Trade or the production of Jewelry for sale to the Retail Jewelry Trade\nregardless of where in the world such activities are conducted.\n2. Non-Competition. Participant agrees that for the Duration of the Non-Competition Covenant Participant will not\ndirectly or indirectly (whether as director, officer, consultant, principal, owner, member, partner, advisor, financier,\nemployee, agent or otherwise):\n(i) engage in, assist, have any interest in or contribute Participant’s knowledge and abilities to, any business or\nentity in the Retail Jewelry Trade or in the Wholesale Jewelry Trade or seeking to enter or about to become engaged in\nthe Retail Jewelry Trade or the Wholesale Jewelry Trade (provided that this subsection shall not prohibit an investment\nby Participant not exceeding five percent of the outstanding securities of a publicly traded company);\n(ii) employ, attempt to employ, or assist anyone in employing a Covered Employee (including by influencing any\nCovered Employee to terminate his/her employment with Tiffany or to accept employment with any Person); or\n(iii) attempt in any manner to solicit jewelry purchases by any client of Tiffany or persuade any client of Tiffany\nto cease doing business or reduce the amount of business that such client has customarily done with Tiffany.\nThe provisions of Section 2(i) above shall not apply if Participant’s employment with Tiffany or Tiffany’s Affiliate is\nterminated by Tiffany or such Affiliate for reasons other than Cause or if, having reached Participant’s Normal\nRetirement Age or Participant’s Change of Control Date, Participant voluntarily resigns from such employment. The\nprovisions of this Section 2 may be waived by the Board, in whole or in part, if deemed by the Board to be in the best\ninterests of Tiffany and Company, provided, however, that if the Participant is, on or within six months prior to\nParticipant’s Termination Date, an officer of Tiffany & Co., a Delaware corporation, then the provisions of this Section 2\nmay only be waived by the Compensation Committee (or its Stock Option Subcommittee) of the Board of Directors of\nsaid Tiffany & Co.\n3. Confidentiality. Participant acknowledges that Participant has had access to Confidential Information. Participant\nagrees not use to the detriment of Tiffany or disclose any Confidential Information. If the Participant is requested in any\ncase by a court or governmental body to make any disclosure of Confidential Information, the\n6\nParticipant shall (i) promptly notify Tiffany in writing, (ii) consult with and assist Tiffany at Tiffany’s expense in\nobtaining an injunction or other appropriate remedy to prevent such disclosure, and (iii) use Participant’s reasonable\nefforts to obtain at the Company’s expense a protective order or other reliable assurance that confidential treatment will\nbe accorded to any Confidential Information that must be disclosed. Subject to the foregoing sentence, Participant may\nfurnish that portion (and only that portion) of the Confidential Information that, in the written opinion of Participant’s\ncounsel (the form and substance of which opinion shall be reasonably acceptable to Tiffany), the Participant is legally\ncompelled or otherwise required to disclose or else stand liable for contempt or suffer other material penalty. The\nobligations in this section shall continue beyond the Duration of the Non-Competition Covenant.\n4. Forfeiture of Equity Awards and Return of Proceeds of Equity Awards in the Event of Breach; Forfeiture of\nVested DCRB Contributions. Should Participant breach Participant’s obligations under Section 2 above, Participant\nshall:\n(i) forfeit and lose all rights under any Equity Award, whether or not such Equity Award shall have vested, and\nsuch Equity Award shall thereupon become null and void;\n(ii) immediately pay to Tiffany and Company the Proceeds of Equity Award for (a) each grant of stock option or\nstock appreciation right that was exercised and (b) each grant of restricted stock or stock units that has vested, in both\ncases (a) and (b), within the following period: beginning 180 days prior to Participant’s Termination Date and including\nthe entire period of the Duration of Non-Competition Covenant;\n(iii) forfeit any Excess DCRB Contributions and Investment Fund performance credited to such contributions in\nParticipant’s Deferred Benefit Accounts that would otherwise be payable to Participant or his Beneficiary under the\nDeferral Plan; and\n(iv) promptly repay to Tiffany and Company any amounts paid from any Excess DCRB Contributions and\nInvestment Fund performance credited to such contributions in Participant’s Deferred Benefit Accounts that have been\npaid to Participant or his Beneficiary under the Deferral Plan prior to such breach.\n5. Enforcement.\n(i) Participant agrees that the restrictions set forth in this instrument are reasonable and necessary to protect the\ngoodwill of Tiffany. If any of the provisions set forth herein is deemed invalid, illegal or unenforceable based upon\nduration, geographic scope or otherwise, Participant agrees that such provision shall be modified to make it enforceable\nto the fullest extent permitted by law.\n(ii) In the event of breach or threatened breach by Participant of the provisions set forth in this instrument,\nParticipant acknowledges that Tiffany will be irreparably harmed and that monetary damages (including loss of the\nBenefit) shall be an insufficient remedy to Tiffany. Therefore, Participant consents to the enforcement of this instrument\n7\nby means of temporary or permanent injunction and other appropriate equitable relief in any competent court, in addition\nto any other remedies Tiffany may have under this Agreement or otherwise.\n6. Procedure to Obtain Determination. Should Participant wish to obtain a determination that any proposed\nemployment, disclosure, arrangement or association (each a “Proposed Transaction”) is not prohibited hereunder,\nParticipant shall direct a written request to the Board. Such request shall fully describe the Proposed Transaction. Within\n30 days after receipt of such request, the Board may (i) issue such a determination in writing, (ii) issue its refusal of such\nrequest in writing, or (iii) issue a written request for more written information concerning the Proposed Transaction. In\nthe event that alternative (iii) is elected (which election may be made on behalf of the Board by the Legal Department of\nTiffany and Company without action by the Board), any action on Participant’s request will be deferred for ten (10) days\nfollowing receipt by said Legal Department of the written information requested. Failure of the Board to act within any\nof the time periods specified in this Section 6 shall be deemed a determination that the Proposed Transaction is not\nprohibited hereunder. A determination made or deemed made under this Section 6 shall be limited in effect to the\nProposed Transaction described in the submitted materials and shall not be binding or constitute a waiver with respect to\nany other Proposed Transaction, whether proposed by such Participant or any other Person. In the event that Participant\nwishes to seek a determination that employment with a management consulting firm, an accounting firm, a law firm or\nsome other provider of consulting services to a wide variety clients will not be prohibited hereunder should such firm, at\nsome unspecified time, provide services to a Person in the Retail Jewelry Trade or the Wholesale Jewelry Trade,\nParticipant may seek a determination hereunder; in submitting such a Proposed Transaction, the Participant should\nspecify the extent that Participant will be involved in or can be excluded from involvement in the provision of such\nservices. In a making any determination under this Section 6, the Board shall not be deemed to be acting as a fiduciary\nwith respect to the Participant or any beneficiary of the Participant and shall be under no obligation to issue a\ndetermination that any Proposed Transaction is not prohibited hereunder.\n7. Arbitration and Equitable Relief. Participant and Tiffany agree that any and all disputes arising out or relating to\nthe interpretation or application of this instrument, including any dispute concerning whether any conduct is in violation\nof Section 2 or 3 above, shall be subject to arbitration in New York, New York, under the then existing Commercial\nArbitration Rules of the American Arbitration Association. Arbitration proceedings shall be conducted by three\narbitrators. Without limit to their general authority, the arbitrators shall have the right to order reasonable discovery in\naccordance with the Federal Rules of Civil Procedure. The final decision of the arbitrators shall be binding and\nenforceable without further legal proceedings in court or otherwise, provided that either party to such arbitration may\nenter judgment upon the award in any court having jurisdiction. The final decision arising from the arbitration shall be\naccompanied by a written opinion and decision which shall describe the rational underlying the award and shall include\nfindings of fact and conclusions of law. The cost of such arbitration shall be borne equally by the parties and each party\nto the arbitration shall bear its own\n8\nattorneys fees. Notwithstanding any provision in this Section 7, the requirement to arbitrate disputes shall not apply to\nany action to enforce this instrument by means of temporary or permanent injunction or other appropriate equitable\nrelief.\n8. Miscellaneous Provisions.\n(a) Tiffany may assign its rights to enforce this instrument to any of its Affiliates. Participant understands and agrees\nthat the promises in this instrument are for the benefit of Tiffany (which term includes the Tiffany and Company and its\nAffiliates) and for the benefit of the successors and assigns of Tiffany and its Affiliates.\n(b) Any determination made by the Board under Section 6 above shall bind Tiffany and Company and its Affiliates.\n(c) The laws of the State of New York, without giving effect to its conflicts of law principles, govern all matters arising\nout of or relating to this instrument and all of the prohibitions and remedies it contemplates, including, without\nlimitation, its validity, interpretation, construction, performance and enforcement.\n(d) Each Person giving or making any notice, request, demand or other communication (each, a “Notice”) pursuant to\nthis Instrument shall\n(i) give the Notice in writing; and\n(ii) use one of the following methods of delivery, each of which for purposes of this Agreement is a writing:\n(A) Personal delivery.\n(B) Registered or Certified Mail, in each case, return receipt requested and postage prepaid.\n(C) Nationally recognized overnight courier, with all fees prepaid.\n(e) Each Person giving a Notice shall address the Notice to the recipient (the “Addressee”) at the address given on the\nsignature page of this Instrument or to a changed address designated in a Notice.\n(f) A Notice is effective only if the person giving the Notice has complied with subsections (d) and (e) and if the\nAddressee has received the Notice. A Notice is deemed to have been received upon receipt as indicated by the date on\nthe signed receipt, provided, however, that if the Addressee rejects or otherwise refuses to accept the Notice, or if the\nNotice cannot be delivered because of a change in address for which no Notice was given, then upon such rejection,\nrefusal or inability to deliver such Notice will be deemed to have been received. Despite the other clauses of this\nsubsection (f), if any Notice is received after 5:00 p.m . on a business day where the Addressee is located, or on\n9\na day that is not a business day where the Addressee is located, then the Notice is deemed received at 9:00 a.m . on the\nnext business day where the Addressee is located.\n(g) This instrument shall not be amended except by a subsequent written instrument that has been executed by\nParticipant and on behalf of Tiffany by a duly authorized officer of Tiffany. Participant’s obligations under this\ninstrument may not be waived, except pursuant to a writing executed on behalf of Tiffany or as otherwise provided in\nSection 6 above.\n(h) This instrument constitutes the final expression of Participant’s post-employment confidentiality and non-\ncompetition obligations. It is the complete and exclusive expression of those obligations and all prior and\ncontemporaneous negotiations and agreement between the parties on those matters are expressly merged into and\nsuperseded by this Agreement.\n(i) Any reference in this instrument to the singular includes the plural where appropriate, and any reference in this\ninstrument to the masculine gender includes the feminine and neuter genders where appropriate. The descriptive\nheadings of the sections of this instrument are for convenience only and do not constitute part of this instrument.\nIN WITNESS WHEREOF, this instrument has been executed on the date first written above.\nParticipant\n__________________________\nName:\nNotice Address:\n__________________________\n__________________________\n__________________________\n10\nAccepted and agreed (as to Section 7)\nTiffany and Company\nBy:______________________\nName:\nTitle:\nNotice Address:\nThe Board of Directors\nTiffany and Company\nCare of:\nLegal Department\n200 Fifth Avenue\nNew York, NY 10022\n11	EX-10.28R 5 ex1028r_formofnoncompetiti.htm EXHIBIT\nExhibit 10.28r\nNON-COMPETITION AND CONFIDENTIALITY COVENANTS\nTHIS INSTRUMENT is made and given this ___ day of 2014 by (“Participant”) to and for\nthe benefit of Tiffany and Company, a New York corporation and its Affiliates (as defined below) with reference to the\nfollowing facts and circumstances:\nA. Participant wishes to receive Equity Awards which might be granted to Participant in the future or which have\nbeen granted to Participant on the condition that Participant executes and delivers this instrument;\nB. Participant wishes to have Excess DCRB Contributions made on his behalf by Tiffany pursuant to the terms\nof the Deferral Plan;\nC. Participant is willing to make the promises set forth in this instrument, and to execute and deliver this\ninstrument, in order to be eligible to (i) receive Equity Awards in the future and to have the benefit of Equity\nAwards which have been granted to Participant on the condition that Participant executes and delivers this\ninstrument and (ii) to have the benefit of Excess DCRB Contributions;\nD. Participant understands that Equity Awards and any Excess DCRB Contributions and Investment Fund\nperformance credited to such contributions in a Participant’s Deferred Benefit Accounts may be forfeited if\nParticipant breaches the covenants contained in this instrument;\nE. Participant understands that the Proceeds of Equity Awards may become due and payable by Participant to\nTiffany and Company if Participant breaches the covenants contained in this instrument;\nF. Participant agrees that the receipt of one or more Equity Awards is full and fair and consideration for the\ncovenants made in this instrument.\nNOW THEREFORE, Participant hereby agrees as follows:\n1. Defined Terms. The initially capitalized words and phrases set forth below shall have the meanings ascribed to them\nbelow:\n“Affiliate” shall mean, with reference to any Person, any second Person that controls, is controlled by, or is under\ncommon control with, any such first Person, directly or indirectly.\n“Board” means the board of directors of Tiffany and Company, a New York corporation.\n“Cause” means a termination of Participant’s employment, involuntary on Participant’s part, which is the result of: (@\n(i)\n(iii)\n(iv)\n)\nParticipant’s conviction or plea of no contest to a felony involving financial impropriety or a felony which\nwould tend to subject the Company or any of its Affiliates to public criticism or materially interfere with\nParticipant’s continued service to the Company or its Affiliate;\nParticipant’s willful and unauthorized disclosure of material Confidential Information which disclosure\nactually results in substantive harm to the Company’s or its Affiliate’s business or puts such business at an\nactual competitive disadvantage;\nParticipant’s willful failure or refusal to perform substantially all such proper and achievable directives\nissued by Participant’s superior (other than: (A) any such failure resulting from Participant’s incapacity\ndue to physical or mental illness, or (B) any such refusal made by Participant in good faith because\nParticipant believes such directives to be illegal, unethical or immoral) after a written demand for\nsubstantial performance is delivered to Participant on behalf of Company, which demand specifically\nidentifies the manner in which Participant has not substantially performed Participant’s duties, and which\nperformance is not substantially corrected by Participant within ten (10) days of receipt of such demand;\nParticipant’s commission of any willful act which is intended by Participant to result in his personal\nenrichment at the expense of the Company or any of its Affiliates, or which could reasonably be expected\nby him to materially injure the reputation, business or business relationships of the Company or any of its\nAffiliates;\nA theft, fraud or embezzlement perpetrated by Participant upon Company or any of its Affiliates.\n“Change in Control” means a change in control of Parent of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Exchange Act, whether or not Parent is then subject to such reporting requirement; provided, however, that, anything in this Agreement to the contrary notwithstanding, a Change in Control shall be deemed to have occurred if: (@\nany Person, or any syndicate or group deemed to be a person under Section 14(d)(2) of the Exchange Act,\nexcluding Parent or any of its Affiliates, a trustee or any fiduciary holding securities under an employee\nbenefit plan of Parent or any of its Affiliates, an underwriter temporarily holding securities pursuant to an\noffering of such securities or a\n(i)\n(iii)\n(iv)\n)\n(vi)\n(vii)\n(viii)\ncorporation owned, directly or indirectly by stockholders of Parent in substantially the same proportion as\ntheir ownership of Parent, is or becomes the “beneficial owner” (as defined in Rule 13d-3 of the General\nRules and Regulations under the Exchange Act), directly or indirectly, of securities of Parent representing\nThirty-five percent (35%) or more of the combined voting power of Parent’s then outstanding securities\nentitled to vote in the election of directors of Parent;\nten (10) days following the “Shares Acquisition Date” if any Person has in fact become and then remains\nan “Acquiring Person” under the Rights Plan;\nif the Parent Board should resolve to redeem the “Rights” under the Rights Plan in response to a proposal\nby any Person to acquire, directly or indirectly, securities of Parent representing Fifteen percent (15%) or\nmore of the combined voting power of Parent’s then outstanding securities entitled to vote in the election\nof directors of Parent;\nif the Incumbent Directors cease to constitute a majority of the Parent Board; provided, however, that no\nperson shall be deemed an Incumbent Director if he or she was appointed or elected to the Parent Board\nafter having been designated to serve on the Parent Board by a Person who has entered into an agreement\nwith Parent to effect a transaction described in clauses (i), (iii), (v), (vi), (vii), (viii) or (ix) of this\ndefinition;\nthere occurs a reorganization, merger, consolidation or other corporate transaction involving Parent, in\neach case with respect to which the stockholders of Parent immediately prior to such transaction do not,\nimmediately after such transaction, own more than Fifty percent (50%) of the combined voting power of\nthe Parent or other corporation resulting from such transaction, as the case may be;\nall or substantially all of the assets of Parent are sold, liquidated or distributed, except to an Affiliate of\nParent;\nall or substantially all of the assets of Tiffany and Company are sold, liquidated or distributed, except to\nan Affiliate of Parent;\nany Person, or any syndicate or group deemed to be a person under Section 14(d)(2) of the Exchange Act,\nexcluding Parent or any of its Affiliates, a trustee or any fiduciary holding securities under an employee\nbenefit plan of Parent or any of its Affiliates, an underwriter temporally holding securities pursuant to an\noffering of such securities or a corporation owned, directly or indirectly by stockholders of Parent in\nsubstantially the same proportion as their ownership of Parent, is or becomes the “beneficial owner” (as\ndefined in Rule 13d-3 of the General\nRules and Regulations under the Exchange Act), directly or indirectly, of securities of Tiffany and\nCompany representing Fifty percent (50%) or more of the combined voting power of Tiffany and\nCompany’s then outstanding securities entitled to vote in the election of directors of Tiffany and\nCompany; or\n(ix)  there is a “change of control” or a “change in the effective control” of Parent within the meaning of\nSection 280G of the Code and the Regulations.\n“Change in Control Date” shall mean the date on which a Change of Control occurs.\n“Confidential Information” means all information relating in any manner to Tiffany or its business, including but not\nlimited to, contemplated new products and services, marketing and advertising campaigns, sales projections, creative\ncampaigns and themes, financial information, budgets and projections, system designs, employees, management\nprocedures and systems, employee training materials, equipment, production plans and techniques, product and materials\nspecifications, product designs and design techniques, client information (including purchase history and client\nidentifying information) and vendor information (including the identity of vendors and information concerning the\ncapacity of or products or pricing provided by specific vendors); notwithstanding the foregoing, “Confidential\nInformation” shall not include information that becomes generally publicly available other than as a result of a disclosure\nby Participant or that becomes available to Participant on a non-confidential basis from a Person that to the Participant’s\nknowledge, after due inquiry, is not bound by a duty of confidentiality.\n“Covered Employee” means any person who, at any date relevant to this Agreement, is an employee of Tiffany or who\nwas an employee of Tiffany during the one-year period previous to the date relevant to this Agreement.\n“Deferral Plan” means the Tiffany and Company Amended and Restated Executive Deferral Plan as it may be further\namended from time to time.\n“Deferred Benefit Accounts” means Deferred Benefit Accounts under the Deferral Plan.\n“Duration of Non-Competition Covenant” means the period beginning with Participant’s Termination Date and ending\nupon the first to occur of the following: (i) the second year anniversary of Participant’s Termination Date, (ii)\nParticipant’s Change of Control Date or (iii) Participant’s 60" birthday provided that, in no circumstance shall the\nDuration of this Covenant be less than six months.\n“Equity Awards” means any grant of options to purchase, restricted shares of, stock units that may be settled in, or stock\nappreciation rights that may be measured by appreciation in the value of, the Common Stock of Tiffany & Co., a\nDelaware corporation, including any grants made under the terms of the 1998 Employee Incentive Plan or any plan\nadopted by Tiffany & Co. subsequent to the date of this instrument including grants made both before and after the date\nof this instrument.\n“Excess DCRB Contributions” means the contribution described in Sections 3.3 and 3.4 of the Deferral Plan.\n“Investment Fund” shall have the meaning ascribed to that term in the Deferral Plan.\n“Jewelry” means jewelry (including but not limited to precious metal or silver jewelry or jewelry containing gemstones)\nand watches.\n“Parent” means Tiffany & Co., a Delaware corporation.\n“Person” means any individual, firm, corporation, partnership, limited partnership, limited liability partnership, business\ntrust, limited liability company, unincorporated association or other entity, and shall include any successor (by merger or\notherwise) of such entity.\n“Proceeds of Equity Award” means, in U.S. dollars, (i) with respect to an Equity Award of restricted stock or stock units,\nthe value the shares on the date the Equity Award vests, and, (ii) with respect to an Equity Award that is an option to\npurchase or a stock appreciation right, the spread between the strike price and the market value for the underlying shares\non the exercise date, in each of cases (i) and (ii) measured by the simple average of the high and low selling prices on the\nprincipal market on which the shares are traded as of vesting or exercise date, as the case may be, if such vesting or\nexercise date is a trading date; if such vesting or exercise date is not a trading date, then as of trading date next following\nthe vesting or exercise date.\n“Normal Retirement Age” means the later of (i) Participant’s 65th birthday or (ii) the 5th anniversary from his date of\nhire.\n“Retail Jewelry Trade” means the operation of one or more retail outlets (including stores-within-stores, leased\ndepartments or concessions) selling Jewelry in any city in the world in which a TIFFANY & CO. store is located at the\ntime in question; for the purpose of this definition, a retail outlet will not be deemed engaged in the Retail Jewelry Trade\nif less than 5% of the items displayed for sale in such outlet are Jewelry, so that, by way of example, an apparel store that\noffers Jewelry as an incidental item would not be deemed engaged in the Retail Jewelry Trade.\n“Rights Plan” means the Amended and Restated Rights Agreement Dated as of September 22, 1998 by and between\nTiffany & Co., a Delaware corporation, and ChaseMellon Shareholder Services L.L.C., as Rights Agent, as such\nAgreement may be further amended from time to time.\n“Termination Date” means the date Participant ceases to be an employee of Tiffany or its Affiliate.\n“Tiffany” means Tiffany and Company, a New York corporation, and if the context so requires, Tiffany and Company\nand/or any Affiliate of Tiffany and Company, such term to be interpreted broadly so as to give rights equivalent to\nTiffany and Company to any Affiliate of Tiffany and Company.\n“Wholesale Jewelry Trade” means the sale of Jewelry or gemstones to the Retail Jewelry Trade, the development or\ndesign of Jewelry for sale to the Retail Jewelry Trade or the production of Jewelry for sale to the Retail Jewelry Trade\nregardless of where in the world such activities are conducted.\n \n2. Non-Competition. Participant agrees that for the Duration of the Non-Competition Covenant Participant will not\ndirectly or indirectly (whether as director, officer, consultant, principal, owner, member, partner, advisor, financier,\nemployee, agent or otherwise):\n(i) engage in, assist, have any interest in or contribute Participant’s knowledge and abilities to, any business or\nentity in the Retail Jewelry Trade or in the Wholesale Jewelry Trade or seeking to enter or about to become engaged in\nthe Retail Jewelry Trade or the Wholesale Jewelry Trade (provided that this subsection shall not prohibit an investment\nby Participant not exceeding five percent of the outstanding securities of a publicly traded company);\n(ii) employ, attempt to employ, or assist anyone in employing a Covered Employee (including by influencing any\nCovered Employee to terminate his/her employment with Tiffany or to accept employment with any Person); or\n(iii) attempt in any manner to solicit jewelry purchases by any client of Tiffany or persuade any client of Tiffany\nto cease doing business or reduce the amount of business that such client has customarily done with Tiffany.\nThe provisions of Section 2(i) above shall not apply if Participant’s employment with Tiffany or Tiffany’s Affiliate is\nterminated by Tiffany or such Affiliate for reasons other than Cause or if, having reached Participant’s Normal\nRetirement Age or Participant’s Change of Control Date, Participant voluntarily resigns from such employment. The\nprovisions of this Section 2 may be waived by the Board, in whole or in part, if deemed by the Board to be in the best\ninterests of Tiffany and Company, provided, however, that if the Participant is, on or within six months prior to\nParticipant’s Termination Date, an officer of Tiffany & Co., a Delaware corporation, then the provisions of this Section 2\nmay only be waived by the Compensation Committee (or its Stock Option Subcommittee) of the Board of Directors of\nsaid Tiffany & Co.\n3. Confidentiality. Participant acknowledges that Participant has had access to Confidential Information. Participant\nagrees not use to the detriment of Tiffany or disclose any Confidential Information. If the Participant is requested in any\ncase by a court or governmental body to make any disclosure of Confidential Information, the\nParticipant shall (i) promptly notify Tiffany in writing, (ii) consult with and assist Tiffany at Tiffany’s expense in\nobtaining an injunction or other appropriate remedy to prevent such disclosure, and (iii) use Participant’s reasonable\nefforts to obtain at the Company’s expense a protective order or other reliable assurance that confidential treatment will\nbe accorded to any Confidential Information that must be disclosed. Subject to the foregoing sentence, Participant may\nfurnish that portion (and only that portion) of the Confidential Information that, in the written opinion of Participant’s\ncounsel (the form and substance of which opinion shall be reasonably acceptable to Tiffany), the Participant is legally\ncompelled or otherwise required to disclose or else stand liable for contempt or suffer other material penalty. The\nobligations in this section shall continue beyond the Duration of the Non-Competition Covenant.\nVested DCRB Contributions. Should Participant breach Participant’s obligations under Section 2 above, Participant\nshall:\n(i) forfeit and lose all rights under any Equity Award, whether or not such Equity Award shall have vested, and\nsuch Equity Award shall thereupon become null and void;\n(ii) immediately pay to Tiffany and Company the Proceeds of Equity Award for (a) each grant of stock option or\nstock appreciation right that was exercised and (b) each grant of restricted stock or stock units that has vested, in both\ncases (a) and (b), within the following period: beginning 180 days prior to Participant’s Termination Date and including\nthe entire period of the Duration of Non-Competition Covenant;\n(iii) forfeit any Excess DCRB Contributions and Investment Fund performance credited to such contributions in\nParticipant’s Deferred Benefit Accounts that would otherwise be payable to Participant or his Beneficiary under the\nDeferral Plan; and\n(iv) promptly repay to Tiffany and Company any amounts paid from any Excess DCRB Contributions and\nInvestment Fund performance credited to such contributions in Participant’s Deferred Benefit Accounts that have been\npaid to Participant or his Beneficiary under the Deferral Plan prior to such breach.\n5. Enforcement.\n(i) Participant agrees that the restrictions set forth in this instrument are reasonable and necessary to protect the\ngoodwill of Tiffany. If any of the provisions set forth herein is deemed invalid, illegal or unenforceable based upon\nduration, geographic scope or otherwise, Participant agrees that such provision shall be modified to make it enforceable\nto the fullest extent permitted by law.\n(ii) In the event of breach or threatened breach by Participant of the provisions set forth in this instrument,\nParticipant acknowledges that Tiffany will be irreparably harmed and that monetary damages (including loss of the\nBenefit) shall be an insufficient remedy to Tiffany. Therefore, Participant consents to the enforcement of this instrument\nby means of temporary or permanent injunction and other appropriate equitable relief in any competent court, in addition\nto any other remedies Tiffany may have under this Agreement or otherwise.\n6. Procedure to Obtain Determination. Should Participant wish to obtain a determination that any proposed\nemployment, disclosure, arrangement or association (each a “Proposed Transaction”) is not prohibited hereunder,\nParticipant shall direct a written request to the Board. Such request shall fully describe the Proposed Transaction. Within\n30 days after receipt of such request, the Board may (i) issue such a determination in writing, (ii) issue its refusal of such\nrequest in writing, or (iii) issue a written request for more written information concerning the Proposed Transaction. In\nthe event that alternative (iii) is elected (which election may be made on behalf of the Board by the Legal Department of\nTiffany and Company without action by the Board), any action on Participant’s request will be deferred for ten (10) days\nfollowing receipt by said Legal Department of the written information requested. Failure of the Board to act within any\nof the time periods specified in this Section 6 shall be deemed a determination that the Proposed Transaction is not\nprohibited hereunder. A determination made or deemed made under this Section 6 shall be limited in effect to the\nProposed Transaction described in the submitted materials and shall not be binding or constitute a waiver with respect to\nany other Proposed Transaction, whether proposed by such Participant or any other Person. In the event that Participant\nwishes to seek a determination that employment with a management consulting firm, an accounting firm, a law firm or\nsome other provider of consulting services to a wide variety clients will not be prohibited hereunder should such firm, at\nsome unspecified time, provide services to a Person in the Retail Jewelry Trade or the Wholesale Jewelry Trade,\nParticipant may seek a determination hereunder; in submitting such a Proposed Transaction, the Participant should\nspecify the extent that Participant will be involved in or can be excluded from involvement in the provision of such\nservices. In a making any determination under this Section 6, the Board shall not be deemed to be acting as a fiduciary\nwith respect to the Participant or any beneficiary of the Participant and shall be under no obligation to issue a\ndetermination that any Proposed Transaction is not prohibited hereunder.\n7. Arbitration and Equitable Relief. Participant and Tiffany agree that any and all disputes arising out or relating to\nthe interpretation or application of this instrument, including any dispute concerning whether any conduct is in violation\nof Section 2 or 3 above, shall be subject to arbitration in New York, New York, under the then existing Commercial\nArbitration Rules of the American Arbitration Association. Arbitration proceedings shall be conducted by three\narbitrators. Without limit to their general authority, the arbitrators shall have the right to order reasonable discovery in\naccordance with the Federal Rules of Civil Procedure. The final decision of the arbitrators shall be binding and\nenforceable without further legal proceedings in court or otherwise, provided that either party to such arbitration may\nenter judgment upon the award in any court having jurisdiction. The final decision arising from the arbitration shall be\naccompanied by a written opinion and decision which shall describe the rational underlying the award and shall include\nfindings of fact and conclusions of law. The cost of such arbitration shall be borne equally by the parties and each party\nto the arbitration shall bear its own\nattorneys fees. Notwithstanding any provision in this Section 7, the requirement to arbitrate disputes shall not apply to\nany action to enforce this instrument by means of temporary or permanent injunction or other appropriate equitable\nrelief.\n8. Miscellaneous Provisions.\n(a) Tiffany may assign its rights to enforce this instrument to any of its Affiliates. Participant understands and agrees\nthat the promises in this instrument are for the benefit of Tiffany (which term includes the Tiffany and Company and its\nAffiliates) and for the benefit of the successors and assigns of Tiffany and its Affiliates.\n(b) Any determination made by the Board under Section 6 above shall bind Tiffany and Company and its Affiliates.\n(c) The laws of the State of New York, without giving effect to its conflicts of law principles, govern all matters arising\nout of or relating to this instrument and all of the prohibitions and remedies it contemplates, including, without\nlimitation, its validity, interpretation, construction, performance and enforcement.\n(d) Each Person giving or making any notice, request, demand or other communication (each, a “Notice”) pursuant to\nthis Instrument shall\n(i) give the Notice in writing; and\n(ii) use one of the following methods of delivery, each of which for purposes of this Agreement is a writing:\n(A)  Personal delivery.\n(B)  Registered or Certified Mail, in each case, return receipt requested and postage prepaid.\n(C)  Nationally recognized overnight courier, with all fees prepaid.\n(e) Each Person giving a Notice shall address the Notice to the recipient (the “Addressee”) at the address given on the\nsignature page of this Instrument or to a changed address designated in a Notice.\n(f) A Notice is effective only if the person giving the Notice has complied with subsections (d) and (e) and if the\nAddressee has received the Notice. A Notice is deemed to have been received upon receipt as indicated by the date on\nthe signed receipt, provided, however, that if the Addressee rejects or otherwise refuses to accept the Notice, or if the\nNotice cannot be delivered because of a change in address for which no Notice was given, then upon such rejection,\nrefusal or inability to deliver such Notice will be deemed to have been received. Despite the other clauses of this\nsubsection (f), if any Notice is received after 5:00 p.m. on a business day where the Addressee is located, or on\na day that is not a business day where the Addressee is located, then the Notice is deemed received at 9:00 a.m. on the\nnext business day where the Addressee is located.\n(g) This instrument shall not be amended except by a subsequent written instrument that has been executed by\nParticipant and on behalf of Tiffany by a duly authorized officer of Tiffany. Participant’s obligations under this\ninstrument may not be waived, except pursuant to a writing executed on behalf of Tiffany or as otherwise provided in\nSection 6 above.\n(h) This instrument constitutes the final expression of Participant’s post-employment confidentiality and non-\ncompetition obligations. It is the complete and exclusive expression of those obligations and all prior and\ncontemporaneous negotiations and agreement between the parties on those matters are expressly merged into and\nsuperseded by this Agreement.\n(i) Any reference in this instrument to the singular includes the plural where appropriate, and any reference in this\ninstrument to the masculine gender includes the feminine and neuter genders where appropriate. The descriptive\nheadings of the sections of this instrument are for convenience only and do not constitute part of this instrument.\nIN WITNESS WHEREOF, this instrument has been executed on the date first written above.\nParticipant\nName:\nNotice Address:\n10\nTiffany and Company\nBy:\nName:\nTitle:\n \nNotice Address:\nThe Board of Directors\nTiffany and Company\nCare of:\nLegal Department\n200 Fifth Avenue\nNew York, NY 10022\n11	EX-10.28R 5 1028r_formofnoncompetiti.htm EXHIBIT\nExhibit 10.28r\nNON-COMPETITION AND CONFIDENTIALITY COVENANTS\nTHIS INSTRUMENT is made and given this day of 2014 by ("Participant") to and for\nthe benefit of Tiffany and Company, a New York corporation and its Affiliates (as defined below) with reference to the\nfollowing facts and circumstances:\nA.\nParticipant wishes to receive Equity Awards which might be granted to Participant in the future or which have\nbeen granted to Participant on the condition that Participant executes and delivers this instrument;\nB.\nParticipant wishes to have Excess DCRB Contributions made on his behalf by Tiffany pursuant to the terms\nof the Deferral Plan;\nC.\nParticipant is willing to make the promises set forth in this instrument, and to execute and deliver this\ninstrument, in order to be eligible to (i) receive Equity Awards in the future and to have the benefit of Equity\nAwards which have been granted to Participant on the condition that Participant executes and delivers this\ninstrument and (ii) to have the benefit of Excess DCRB Contributions;\nD.\nParticipant understands that Equity Awards and any Excess DCRB Contributions and Investment Fund\nperformance credited to such contributions in a Participant's Deferred Benefit Accounts may be forfeited\nif\nParticipant breaches the covenants contained in this instrument;\nE.\nParticipant understands that the Proceeds of Equity Awards may become due and payable by Participant\nto\nTiffany and Company if Participant breaches the covenants contained in this instrument;\nF.\nParticipant agrees that the receipt of one or more Equity Awards is full and fair and consideration for the\ncovenants made in this instrument.\nNOW THEREFORE, Participant hereby agrees as follows:\n1. Defined Terms. The initially capitalized words and phrases set forth below shall have the meanings ascribed to them\nbelow:\n"Affiliate" shall mean, with reference to any Person, any second Person that controls, is controlled by, or is under\ncommon control with, any such first Person, directly or indirectly.\n"Board" means the board of directors of Tiffany and Company, a New York corporation.\n"Cause" means a termination of Participant's employment, involuntary on Participant's part, which is the result of:\n(i)\nParticipant's conviction or plea of no contest to a felony involving financial impropriety or a felony which\nwould tend to subject the Company or any of its Affiliates to public criticism or materially interfere with\nParticipant's continued service to the Company or its Affiliate;\n(ii)\nParticipant's willful and unauthorized disclosure of material Confidential Information which disclosure\nactually results in substantive harm to the Company's or its Affiliate's business or puts such business at an\nactual competitive disadvantage;\n(iii)\nParticipant's willful failure or refusal to perform substantially all such proper and achievable directives\nissued by Participant's superior (other than: (A) any such failure resulting from Participant's incapacity\ndue to physical or mental illness, or (B) any such refusal made by Participant in good faith because\nParticipant believes such directives to be illegal, unethical or immoral) after a written demand for\nsubstantial performance is delivered to Participant on behalf of Company, which demand specifically\nidentifies the manner in which Participant has not substantially performed Participant's duties, and which\nperformance is not substantially corrected by Participant within ten (10) days of receipt of such demand;\n(iv)\nParticipant's commission of any willful act which is intended by Participant to result in his personal\nenrichment at the expense of the Company or any of its Affiliates, or which could reasonably be expected\nby him to materially injure the reputation, business or business relationships of the Company or any of its\nAffiliates;\n(v)\nA theft, fraud or embezzlement perpetrated by Participant upon Company or any of its Affiliates.\n"Change in Control" means a change in control of Parent of a nature that would be required to be reported in response to\nItem 6(e) of Schedule 14A of Regulation 14A promulgated under the Exchange Act, whether or not Parent is then\nsubject to such reporting requirement; provided, however, that, anything in this Agreement to the contrary\nnotwithstanding, a Change in Control shall be deemed to have occurred if:\n(i)\nany Person, or any syndicate or group deemed to be a person under Section 14(d)(2) of the Exchange Act,\nexcluding Parent or any of its Affiliates, a trustee or any fiduciary holding securities under an employee\nbenefit plan of Parent or any of its Affiliates, an underwriter temporarily holding securities pursuant to an\noffering of such securities or a\n2\ncorporation owned, directly or indirectly by stockholders of Parent in substantially the same proportion as\ntheir ownership of Parent, is or becomes the "beneficial owner" (as defined in Rule 13d-3 of the General\nRules and Regulations under the Exchange Act), directly or indirectly, of securities of Parent representing\nThirty-five percent (35%) or more of the combined voting power of Parent's then outstanding securities\nentitled to vote in the election of directors of Parent;\n(ii)\nten (10) days following the "Shares Acquisition Date" if any Person has in fact become and then remains\nan "Acquiring Person" under the Rights Plan;\n(iii)\nif the Parent Board should resolve to redeem the "Rights" under the Rights Plan in response to a proposal\nby any Person to acquire, directly or indirectly, securities of Parent representing Fifteen percent (15%) or\nmore of the combined voting power of Parent's then outstanding securities entitled to vote in the election\nof directors of Parent;\n(iv)\nif the Incumbent Directors cease to constitute a majority of the Parent Board; provided, however, that no\nperson shall be deemed an Incumbent Director if he or she was appointed or elected to the Parent Board\nafter having been designated to serve on the Parent Board by a Person who has entered into an agreement\nwith Parent to effect a transaction described in clauses (i), (iii), (v), (vi), (vii), (viii) or (ix) of this\ndefinition;\n(v)\nthere occurs a reorganization, merger, consolidation or other corporate transaction involving Parent, in\neach case with respect to which the stockholders of Parent immediately prior to such transaction do not,\nimmediately after such transaction, own more than Fifty percent (50%) of the combined voting power\nof\nthe Parent or other corporation resulting from such transaction, as the case may be;\n(vi)\nall or substantially all of the assets of Parent are sold, liquidated or distributed, except to an Affiliate of\nParent;\n(vii)\nall or substantially all of the assets of Tiffany and Company are sold, liquidated or distributed, except to\nan Affiliate of Parent;\n(viii)\nany Person, or any syndicate or group deemed to be a person under Section 14(d)(2) of the Exchange Act,\nexcluding Parent or any of its Affiliates, a trustee or any fiduciary holding securities under an employee\nbenefit\nplan of Parent or any of its Affiliates, an underwriter temporally holding securities pursuant to\nan\noffering of such securities or a corporation owned, directly or indirectly by stockholders of Parent in\nsubstantially the same proportion as their ownership of Parent, is or becomes the "beneficial owner" (as\ndefined in Rule 13d-3 of the General\n3\nRules and Regulations under the Exchange Act), directly or indirectly, of securities of Tiffany and\nCompany representing Fifty percent (50%) or more of the combined voting power of Tiffany and\nCompany's then outstanding securities entitled to vote in the election of directors of Tiffany and\nCompany; or\n(ix)\nthere is a "change of control" or a "change in the effective control" of Parent within the meaning of\nSection 280G of the Code and the Regulations.\n"Change in Control Date" shall mean the date on which a Change of Control occurs.\n"Confidential Information" means all information relating in any manner to Tiffany or its business, including but not\nlimited to, contemplated new products and services, marketing and advertising campaigns, sales projections, creative\ncampaigns and themes, financial information, budgets and projections, system designs, employees, management\nprocedures and systems, employee training materials, equipment, production plans and techniques, product and materials\nspecifications, product designs and design techniques, client information (including purchase history and client\nidentifying information) and vendor information (including the identity of vendors and information concerning the\ncapacity of or products or pricing provided by specific vendors); notwithstanding the foregoing, "Confidential\nInformation" shall not include information that becomes generally publicly available other than as a result of a disclosure\nby Participant or that becomes available to Participant on a non-confidential basis from a Person that to the Participant's\nknowledge, after due inquiry, is not bound by a duty of confidentiality.\n"Covered Employee" means any person who, at any date relevant to this Agreement, is an employee of Tiffany or who\nwas an employee of Tiffany during the one-year period previous to the date relevant to this Agreement.\n"Deferral Plan" means the Tiffany and Company Amended and Restated Executive Deferral Plan as it may be further\namended from time to time.\n"Deferred Benefit Accounts" means Deferred Benefit Accounts under the Deferral Plan.\n"Duration of Non-Competition Covenant" means the period beginning with Participant's Termination Date and ending\nupon the first to occur of the following: (i) the second year anniversary of Participant's Termination Date, (ii)\nParticipant's Change of Control Date or (iii) Participant's 60th birthday provided that, in no circumstance shall\nthe\nDuration of this Covenant be less than six months.\n"Equity Awards" means any grant of options to purchase, restricted shares of, stock units that may be settled in, or stock\nappreciation rights that may be measured by appreciation in the value of, the Common Stock of Tiffany & Co., a\nDelaware corporation, including any grants made under the terms of the 1998 Employee Incentive Plan or any plan\n4\nadopted by Tiffany & Co. subsequent to the date of this instrument including grants made both before and after the date\nof this instrument.\n"Excess DCRB Contributions" means the contribution described in Sections 3.3 and 3.4 of the Deferral Plan.\n"Investment Fund" shall have the meaning ascribed to that term in the Deferral Plan.\n"Jewelry" means jewelry (including but not limited to precious metal or silver jewelry or jewelry containing gemstones)\nand watches.\n"Parent" means Tiffany & Co., a Delaware corporation.\n"Person" means any individual, firm, corporation, partnership, limited partnership, limited liability partnership, business\ntrust, limited liability company, unincorporated association or other entity, and shall include any successor (by merger or\notherwise) of such entity.\n"Proceeds of Equity Award" means, in U.S. dollars, (i) with respect to an Equity Award of restricted stock or stock units,\nthe value the shares on the date the Equity Award vests, and, (ii) with respect to an Equity Award that is an option to\npurchase or a stock appreciation right, the spread between the strike price and the market value for the underlying shares\non the exercise date, in each of cases (i) and (ii) measured by the simple average of the high and low selling prices on\nthe\nprincipal market on which the shares are traded as of vesting or exercise date, as the case may be, if such vesting or\nexercise date is a trading date; if such vesting or exercise date is not a trading date, then as of trading date next following\nthe vesting or exercise date.\n"Normal Retirement Age" means the later of (i) Participant's 65th birthday or (ii) the 5th anniversary from his date of\nhire.\n"Retail Jewelry Trade" means the operation of one or more retail outlets (including stores-within-stores, leased\ndepartments or concessions) selling Jewelry in any city in the world in which a TIFFANY & CO. store is located at the\ntime in question; for the purpose of this definition, a retail outlet will not be deemed engaged in the Retail Jewelry Trade\nif less than 5% of the items displayed for sale in such outlet are Jewelry, so that, by way of example, an apparel store that\noffers Jewelry as an incidental item would not be deemed engaged in the Retail Jewelry Trade.\n"Rights Plan" means the Amended and Restated Rights Agreement Dated as of September 22, 1998 by and between\nTiffany & Co., a Delaware corporation, and ChaseMellon Shareholder Services L.L.C., as Rights Agent, as such\nAgreement may be further amended from time to time.\n5\n"Termination Date" means the date Participant ceases to be an employee of Tiffany or its Affiliate.\n"Tiffany" means Tiffany and Company, a New York corporation, and if the context so requires, Tiffany and Company\nand/or any Affiliate of Tiffany and Company, such term to be interpreted broadly so as to give rights equivalent to\nTiffany and Company to any Affiliate of Tiffany and Company.\n"Wholesale Jewelry Trade" means the sale of Jewelry or gemstones to the Retail Jewelry Trade, the development or\ndesign of Jewelry for sale to the Retail Jewelry Trade or the production of Jewelry for sale to the Retail Jewelry Trade\nregardless of where in the world such activities are conducted.\n2. Non-Competition. Participant agrees that for the Duration of the Non-Competition Covenant Participant will not\ndirectly or indirectly (whether as director, officer, consultant, principal, owner, member, partner, advisor, financier,\nemployee, agent or otherwise):\n(i) engage in, assist, have any interest in or contribute Participant's knowledge and abilities to, any business or\nentity in the Retail Jewelry Trade or in the Wholesale Jewelry Trade or seeking to enter or about to become engaged in\nthe Retail Jewelry Trade or the Wholesale Jewelry Trade (provided that this subsection shall not prohibit an investment\nby Participant not exceeding five percent of the outstanding securities of a publicly traded company);\n(ii) employ, attempt to employ, or assist anyone in employing a Covered Employee (including by influencing any\nCovered Employee to terminate his/her employment with Tiffany or to accept employment with any Person); or\n(iii) attempt in any manner to solicit jewelry purchases by any client of Tiffany or persuade any client of Tiffany\nto cease doing business or reduce the amount of business that such client has customarily done with Tiffany.\nThe provisions of Section 2(i) above shall not apply if Participant's employment with Tiffany or Tiffany's Affiliate is\nterminated by Tiffany or such Affiliate for reasons other than Cause or if, having reached Participant's Normal\nRetirement Age or Participant's Change of Control Date, Participant voluntarily resigns from such employment. The\nprovisions\nof\nthis\nSection\n2\nmay\nbe\nwaived\nby\nthe\nBoard,\nin\nwhole\nor\nin\npart,\nif\ndeemed\nby\nthe\nBoard\nto\nbe\nin\nthe\nbest\ninterests of Tiffany and Company, provided, however, that if the Participant is, on or within six months prior to\nParticipant's Termination Date, an officer of Tiffany & Co., a Delaware corporation, then the provisions of this Section\n2\nmay only be waived by the Compensation Committee (or its Stock Option Subcommittee) of the Board of Directors of\nsaid Tiffany & Co.\n3. Confidentiality.. Participant acknowledges that Participant has had access to Confidential Information. Participant\nagrees not use to the detriment of Tiffany or disclose any Confidential Information. If the Participant is requested in any\ncase by a court or governmental body to make any disclosure of Confidential Information, the\n6\nParticipant shall (i) promptly notify Tiffany in writing, (ii) consult with and assist Tiffany at Tiffany's expense in\nobtaining an injunction or other appropriate remedy to prevent such disclosure, and (iii) use Participant's reasonable\nefforts to obtain at the Company's expense a protective order or other reliable assurance that confidential treatment will\nbe accorded to any Confidential Information that must be disclosed. Subject to the foregoing sentence, Participant may\nfurnish that portion (and only that portion) of the Confidential Information that, in the written opinion of Participant's\ncounsel\n(the form and substance of which opinion shall be reasonably acceptable to Tiffany), the Participant is legally\ncompelled or otherwise required to disclose or else stand liable for contempt or suffer other material penalty. The\nobligations in this section shall continue beyond the Duration of the Non-Competition Covenant.\n4. Forfeiture of Equity Awards and Return of Proceeds of Equity Equity Awards Awards in the Event of Breach; Forfeiture of\nVested DCRB Contributions. Should Participant breach Participant's obligations under Section 2 above, Participant\nshall:\n(i) forfeit and lose all rights under any Equity Award, whether or not such Equity Award shall have vested, and\nsuch Equity Award shall thereupon become null and void;\n(ii) immediately pay to Tiffany and Company the Proceeds of Equity Award for (a) each grant of stock option or\nstock appreciation right that was exercised and (b) each grant of restricted stock or stock units that has vested, in both\ncases (a) and (b), within the following period: beginning 180 days prior to Participant's Termination Date and including\nthe entire period of the Duration of Non-Competition Covenant;\n(iii) forfeit any Excess DCRB Contributions and Investment Fund performance credited to such contributions in\nParticipant's Deferred Benefit Accounts that would otherwise be payable to Participant or his Beneficiary under the\nDeferral Plan; and\n(iv) promptly repay to Tiffany and Company any amounts paid from any Excess DCRB Contributions and\nInvestment Fund performance credited to such contributions in Participant's Deferred Benefit Accounts that have been\npaid to Participant or his Beneficiary under the Deferral Plan prior to such breach.\n5. Enforcement.\n(i) Participant agrees that the restrictions set forth in this instrument are reasonable and necessary to protect the\ngoodwill of Tiffany. If any of the provisions set forth herein is deemed invalid, illegal or unenforceable based upon\nduration, geographic scope or otherwise, Participant agrees that such provision shall be modified to make it enforceable\nto the fullest extent permitted by law.\n(ii) In the event of breach or threatened breach by Participant of the provisions set forth in this instrument,\nParticipant acknowledges that Tiffany will be irreparably harmed and that monetary damages (including loss of the\nBenefit) shall be an insufficient remedy to Tiffany. Therefore, Participant consents to the enforcement of this instrument\n7\nby means of temporary or permanent injunction and other appropriate equitable relief in any competent court, in addition\nto any other remedies Tiffany may have under this Agreement or otherwise.\n6.\nProcedure to Obtain Determination. Should Participant wish to obtain a determination that any proposed\nemployment, disclosure, arrangement or association (each a "Proposed Transaction") is not prohibited hereunder,\nParticipant shall direct a written request to the Board. Such request shall fully describe the Proposed Transaction. Within\n30 days after receipt of such request, the Board may (i) issue such a determination in writing, (ii) issue its refusal of such\nrequest in writing, or (iii) issue a written request for more written information concerning the Proposed Transaction.\nIn\nthe event that alternative (iii) is elected (which election may be made on behalf of the Board by the Legal Department of\nTiffany and Company without action by the Board), any action on Participant's request will be deferred for ten (10) days\nfollowing\nreceipt by said Legal Department of the written information requested. Failure of the Board to act within\nany\nof the time periods specified in this Section 6 shall be deemed a determination that the Proposed Transaction is not\nprohibited hereunder. A determination made or deemed made under this Section 6 shall be limited in effect to the\nProposed Transaction described in the submitted materials and shall not be binding or constitute a waiver with respect to\nany other Proposed Transaction, whether proposed by such Participant or any other Person. In the event that Participant\nwishes\nto\nseek\na\ndetermination\nthat\nemployment\nwith\na\nmanagement\nconsulting\nfirm,\nan\naccounting\nfirm,\na\nlaw\nfirm\nor\nsome other provider of consulting services to a wide variety clients will not be prohibited hereunder should such firm, at\nsome unspecified time, provide services to a Person in the Retail Jewelry Trade or the Wholesale Jewelry Trade,\nParticipant may seek a determination hereunder; in submitting such a Proposed Transaction, the Participant should\nspecify the extent that Participant will be involved in or can be excluded from involvement in the provision of such\nservices. In a making any determination under this Section 6, the Board shall not be deemed to be acting as a fiduciary\nwith respect to the Participant or any beneficiary of the Participant and shall be under no obligation to issue a\ndetermination that any Proposed Transaction is not prohibited hereunder.\n7. Arbitration and Equitable Relief. Participant and Tiffany agree that any and all disputes arising out or relating to\nthe interpretation or application of this instrument, including any dispute concerning whether any conduct is in violation\nof Section 2 or 3 above, shall be subject to arbitration in New York, New York, under the then existing Commercial\nArbitration Rules of the American Arbitration Association. Arbitration proceedings shall be conducted by three\narbitrators. Without limit to their general authority, the arbitrators shall have the right to order reasonable discovery in\naccordance with the Federal Rules of Civil Procedure. The final decision of the arbitrators shall be binding and\nenforceable without further legal proceedings in court or otherwise, provided that either party to such arbitration may\nenter judgment upon the award in any court having jurisdiction. The final decision arising from the arbitration shall be\naccompanied\nby\na\nwritten\nopinion\nand\ndecision\nwhich\nshall\ndescribe\nthe\nrational\nunderlying\nthe\naward\nand\nshall\ninclude\nfindings of fact and conclusions of law. The cost of such arbitration shall be borne equally by the parties and each party\nto the arbitration shall bear its own\n8\nattorneys fees. Notwithstanding any provision in this Section 7, the requirement to arbitrate disputes shall not apply to\nany action to enforce this instrument by means of temporary or permanent injunction or other appropriate equitable\nrelief.\n8. Miscellaneous Provisions.\n(a) Tiffany may assign its rights to enforce this instrument to any of its Affiliates. Participant understands and agrees\nthat the promises in this instrument are for the benefit of Tiffany (which term includes the Tiffany and Company and\nits\nAffiliates) and for the benefit of the successors and assigns of Tiffany and its Affiliates.\n(b) Any determination made by the Board under Section 6 above shall bind Tiffany and Company and its Affiliates.\n(c)\nThe laws of the State of New York, without giving effect to its conflicts of law principles, govern all matters arising\nout of or relating to this instrument and all of the prohibitions and remedies it contemplates, including, without\nlimitation, its validity, interpretation, construction, performance and enforcement.\n(d) Each Person giving or making any notice, request, demand or other communication (each, a "Notice") pursuant to\nthis Instrument shall\n(i) give the Notice in writing; and\n(ii)\nuse one of the following methods of delivery, each of which for purposes of this Agreement is a writing:\n(A)\nPersonal delivery.\n(B)\nRegistered or Certified Mail, in each case, return receipt requested and postage prepaid.\n(C)\nNationally recognized overnight courier, with all fees prepaid.\n(e) Each Person giving a Notice shall address the Notice to the recipient (the "Addressee") at the address given on the\nsignature page of this Instrument or to a changed address designated in a Notice.\n(f) A Notice is effective only if the person giving the Notice has complied with subsections (d) and (e) and if the\nAddressee has received the Notice. A Notice is deemed to have been received upon receipt as indicated by the date on\nthe signed receipt, provided, however, that if the Addressee rejects or otherwise refuses to accept the Notice, or if the\nNotice\ncannot\nbe\ndelivered\nbecause\nof\na\nchange\nin\naddress\nfor\nwhich\nno\nNotice\nwas\ngiven,\nthen\nupon\nsuch\nrejection,\nrefusal or inability to deliver such Notice will be deemed to have been received. Despite the other clauses of this\nsubsection (f), if any Notice is received after 5:00 p.m. on a business day where the Addressee is located, or on\n9\na day that is not a business day where the Addressee is located, then the Notice is deemed received at 9:00 a.m. on the\nnext business day where the Addressee is located.\n(g) This instrument shall not be amended except by a subsequent written instrument that has been executed by\nParticipant and on behalf of Tiffany by a duly authorized officer of Tiffany. Participant's obligations under this\ninstrument may not be waived, except pursuant to a writing executed on behalf of Tiffany or as otherwise provided in\nSection 6 above.\n(h) This instrument constitutes the final expression of Participant's post-employment confidentiality and non-\ncompetition obligations. It is the complete and exclusive expression of those obligations and all prior and\ncontemporaneous negotiations and agreement between the parties on those matters are expressly merged into and\nsuperseded by this Agreement.\n(i) Any reference in this instrument to the singular includes the plural where appropriate, and any reference in this\ninstrument to the masculine gender includes the feminine and neuter genders where appropriate. The descriptive\nheadings of the sections of this instrument are for convenience only and do not constitute part of this instrument.\nIN WITNESS WHEREOF, this instrument has been executed on the date first written above.\nParticipant\nName:\nNotice Address:\n10\nAccepted and agreed (as to Section 7)\nTiffany and Company\nBy:\nName:\nTitle:\nNotice Address:\nThe Board of Directors\nTiffany and Company\nCare of:\nLegal Department\n200 Fifth Avenue\nNew York, NY 10022\n11	EX-10 .28R 5 ex1028r_formofnoncompetiti.htm EXHIBIT\nExhibit 10.28r\nNON-COMPETITION AND CONFIDENTIALITY COVENANTS\nTHIS INSTRUMENT is made and given this ___ day of _________ 2014 by __________(“Participant”) to and for\nthe benefit of Tiffany and Company, a New York corporation and its Affiliates (as defined below) with reference to the\nfollowing facts and circumstances:\nA.\nParticipant wishes to receive Equity Awards which might be granted to Participant in the future or which have\nbeen granted to Participant on the condition that Participant executes and delivers this instrument;\nB.\nParticipant wishes to have Excess DCRB Contributions made on his behalf by Tiffany pursuant to the terms\nof the Deferral Plan;\nC.\nParticipant is willing to make the promises set forth in this instrument, and to execute and deliver this\ninstrument, in order to be eligible to (i) receive Equity Awards in the future and to have the benefit of Equity\nAwards which have been granted to Participant on the condition that Participant executes and delivers this\ninstrument and (ii) to have the benefit of Excess DCRB Contributions;\nD.\nParticipant understands that Equity Awards and any Excess DCRB Contributions and Investment Fund\nperformance credited to such contributions in a Participant’s Deferred Benefit Accounts may be forfeited if\nParticipant breaches the covenants contained in this instrument;\nE.\nParticipant understands that the Proceeds of Equity Awards may become due and payable by Participant to\nTiffany and Company if Participant breaches the covenants contained in this instrument;\nF.\nParticipant agrees that the receipt of one or more Equity Awards is full and fair and consideration for the\ncovenants made in this instrument.\nNOW THEREFORE, Participant hereby agrees as follows:\n1. Defined Terms. The initially capitalized words and phrases set forth below shall have the meanings ascribed to them\nbelow:\n“Affiliate” shall mean, with reference to any Person, any second Person that controls, is controlled by, or is under\ncommon control with, any such first Person, directly or indirectly.\n“Board” means the board of directors of Tiffany and Company, a New York corporation.\n“Cause” means a termination of Participant’s employment, involuntary on Participant’s part, which is the result of:\n(i)\nParticipant’s conviction or plea of no contest to a felony involving financial impropriety or a felony which\nwould tend to subject the Company or any of its Affiliates to public criticism or materially interfere with\nParticipant’s continued service to the Company or its Affiliate;\n(ii) Participant’s willful and unauthorized disclosure of material Confidential Information which disclosure\nactually results in substantive harm to the Company’s or its Affiliate’s business or puts such business at an\nactual competitive disadvantage;\n(iii) Participant’s willful failure or refusal to perform substantially all such proper and achievable directives\nissued by Participant’s superior (other than: (A) any such failure resulting from Participant’s incapacity\ndue to physical or mental illness, or (B) any such refusal made by Participant in good faith because\nParticipant believes such directives to be illegal, unethical or immoral) after a written demand for\nsubstantial performance is delivered to Participant on behalf of Company, which demand specifically\nidentifies the manner in which Participant has not substantially performed Participant’s duties, and which\nperformance is not substantially corrected by Participant within ten (10) days of receipt of such demand;\n(iv) Participant’s commission of any willful act which is intended by Participant to result in his personal\nenrichment at the expense of the Company or any of its Affiliates, or which could reasonably be expected\nby him to materially injure the reputation, business or business relationships of the Company or any of its\nAffiliates;\n(v) A theft, fraud or embezzlement perpetrated by Participant upon Company or any of its Affiliates.\n“Change in Control” means a change in control of Parent of a nature that would be required to be reported in response to\nItem 6(e) of Schedule 14A of Regulation 14A promulgated under the Exchange Act, whether or not Parent is then\nsubject to such reporting requirement; provided, however, that, anything in this Agreement to the contrary\nnotwithstanding, a Change in Control shall be deemed to have occurred if:\n(i)\nany Person, or any syndicate or group deemed to be a person under Section 14(d)(2) of the Exchange Act,\nexcluding Parent or any of its Affiliates, a trustee or any fiduciary holding securities under an employee\nbenefit plan of Parent or any of its Affiliates, an underwriter temporarily holding securities pursuant to an\noffering of such securities or a\n2\ncorporation owned, directly or indirectly by stockholders of Parent in substantially the same proportion as\ntheir ownership of Parent, is or becomes the “beneficial owner” (as defined in Rule 13d-3 of the General\nRules and Regulations under the Exchange Act), directly or indirectly, of securities of Parent representing\nThirty-five percent (35%) or more of the combined voting power of Parent’s then outstanding securities\nentitled to vote in the election of directors of Parent;\n(ii) ten (10) days following the “Shares Acquisition Date” if any Person has in fact become and then remains\nan “Acquiring Person” under the Rights Plan;\n(iii) if the Parent Board should resolve to redeem the “Rights” under the Rights Plan in response to a proposal\nby any Person to acquire, directly or indirectly, securities of Parent representing Fifteen percent (15%) or\nmore of the combined voting power of Parent’s then outstanding securities entitled to vote in the election\nof directors of Parent;\n(iv) if the Incumbent Directors cease to constitute a majority of the Parent Board; provided, however, that no\nperson shall be deemed an Incumbent Director if he or she was appointed or elected to the Parent Board\nafter having been designated to serve on the Parent Board by a Person who has entered into an agreement\nwith Parent to effect a transaction described in clauses (i), (iii), (v), (vi), (vii), (viii) or (ix) of this\ndefinition;\n(v)\nthere occurs a reorganization, merger, consolidation or other corporate transaction involving Parent, in\neach case with respect to which the stockholders of Parent immediately prior to such transaction do not,\nimmediately after such transaction, own more than Fifty percent (50%) of the combined voting power of\nthe Parent or other corporation resulting from such transaction, as the case may be;\n(vi) all or substantially all of the assets of Parent are sold, liquidated or distributed, except to an Affiliate of\nParent;\n(vii) all or substantially all of the assets of Tiffany and Company are sold, liquidated or distributed, except to\nan Affiliate of Parent;\n(viii) any Person, or any syndicate or group deemed to be a person under Section 14(d)(2) of the Exchange Act,\nexcluding Parent or any of its Affiliates, a trustee or any fiduciary holding securities under an employee\nbenefit plan of Parent or any of its Affiliates, an underwriter temporally holding securities pursuant to an\noffering of such securities or a corporation owned, directly or indirectly by stockholders of Parent in\nsubstantially the same proportion as their ownership of Parent, is or becomes the “beneficial owner” (as\ndefined in Rule 13d-3 of the General\n3\nRules and Regulations under the Exchange Act), directly or indirectly, of securities of Tiffany and\nCompany representing Fifty percent (50%) or more of the combined voting power of Tiffany and\nCompany’s then outstanding securities entitled to vote in the election of directors of Tiffany and\nCompany; or\n(ix) there is a “change of control” or a “change in the effective control” of Parent within the meaning of\nSection 280G of the Code and the Regulations.\n“Change in Control Date” shall mean the date on which a Change of Control occurs.\n“Confidential Information” means all information relating in any manner to Tiffany or its business, including but not\nlimited to, contemplated new products and services, marketing and advertising campaigns, sales projections, creative\ncampaigns and themes, financial information, budgets and projections, system designs, employees, management\nprocedures and systems, employee training materials, equipment, production plans and techniques, product and materials\nspecifications, product designs and design techniques, client information (including purchase history and client\nidentifying information) and vendor information (including the identity of vendors and information concerning the\ncapacity of or products or pricing provided by specific vendors); notwithstanding the foregoing, “Confidential\nInformation” shall not include information that becomes generally publicly available other than as a result of a disclosure\nby Participant or that becomes available to Participant on a non-confidential basis from a Person that to the Participant’s\nknowledge, after due inquiry, is not bound by a duty of confidentiality.\n“Covered Employee” means any person who, at any date relevant to this Agreement, is an employee of Tiffany or who\nwas an employee of Tiffany during the one-year period previous to the date relevant to this Agreement.\n“Deferral Plan” means the Tiffany and Company Amended and Restated Executive Deferral Plan as it may be further\namended from time to time.\n“Deferred Benefit Accounts” means Deferred Benefit Accounts under the Deferral Plan.\n“Duration of Non-Competition Covenant” means the period beginning with Participant’s Termination Date and ending\nupon the first to occur of the following: (i) the second year anniversary of Participant’s Termination Date, (ii)\nParticipant’s Change of Control Date or (iii) Participant’s 60th birthday provided that, in no circumstance shall the\nDuration of this Covenant be less than six months.\n“Equity Awards” means any grant of options to purchase, restricted shares of, stock units that may be settled in, or stock\nappreciation rights that may be measured by appreciation in the value of, the Common Stock of Tiffany & Co., a\nDelaware corporation, including any grants made under the terms of the 1998 Employee Incentive Plan or any plan\n4\nadopted by Tiffany & Co. subsequent to the date of this instrument including grants made both before and after the date\nof this instrument.\n“Excess DCRB Contributions” means the contribution described in Sections 3.3 and 3.4 of the Deferral Plan.\n“Investment Fund” shall have the meaning ascribed to that term in the Deferral Plan.\n“Jewelry” means jewelry (including but not limited to precious metal or silver jewelry or jewelry containing gemstones)\nand watches.\n“Parent” means Tiffany & Co., a Delaware corporation.\n“Person” means any individual, firm, corporation, partnership, limited partnership, limited liability partnership, business\ntrust, limited liability company, unincorporated association or other entity, and shall include any successor (by merger or\notherwise) of such entity.\n“Proceeds of Equity Award” means, in U.S . dollars, (i) with respect to an Equity Award of restricted stock or stock units,\nthe value the shares on the date the Equity Award vests, and, (ii) with respect to an Equity Award that is an option to\npurchase or a stock appreciation right, the spread between the strike price and the market value for the underlying shares\non the exercise date, in each of cases (i) and (ii) measured by the simple average of the high and low selling prices on the\nprincipal market on which the shares are traded as of vesting or exercise date, as the case may be, if such vesting or\nexercise date is a trading date; if such vesting or exercise date is not a trading date, then as of trading date next following\nthe vesting or exercise date.\n“Normal Retirement Age” means the later of (i) Participant’s 65th birthday or (ii) the 5th anniversary from his date of\nhire.\n“Retail Jewelry Trade” means the operation of one or more retail outlets (including stores-within-stores, leased\ndepartments or concessions) selling Jewelry in any city in the world in which a TIFFANY & CO. store is located at the\ntime in question; for the purpose of this definition, a retail outlet will not be deemed engaged in the Retail Jewelry Trade\nif less than 5% of the items displayed for sale in such outlet are Jewelry, so that, by way of example, an apparel store that\noffers Jewelry as an incidental item would not be deemed engaged in the Retail Jewelry Trade.\n“Rights Plan” means the Amended and Restated Rights Agreement Dated as of September 22, 1998 by and between\nTiffany & Co., a Delaware corporation, and ChaseMellon Shareholder Services L.L .C ., as Rights Agent, as such\nAgreement may be further amended from time to time.\n5\n“Termination Date” means the date Participant ceases to be an employee of Tiffany or its Affiliate.\n“Tiffany” means Tiffany and Company, a New York corporation, and if the context so requires, Tiffany and Company\nand/or any Affiliate of Tiffany and Company, such term to be interpreted broadly so as to give rights equivalent to\nTiffany and Company to any Affiliate of Tiffany and Company.\n“Wholesale Jewelry Trade” means the sale of Jewelry or gemstones to the Retail Jewelry Trade, the development or\ndesign of Jewelry for sale to the Retail Jewelry Trade or the production of Jewelry for sale to the Retail Jewelry Trade\nregardless of where in the world such activities are conducted.\n2. Non-Competition. Participant agrees that for the Duration of the Non-Competition Covenant Participant will not\ndirectly or indirectly (whether as director, officer, consultant, principal, owner, member, partner, advisor, financier,\nemployee, agent or otherwise):\n(i) engage in, assist, have any interest in or contribute Participant’s knowledge and abilities to, any business or\nentity in the Retail Jewelry Trade or in the Wholesale Jewelry Trade or seeking to enter or about to become engaged in\nthe Retail Jewelry Trade or the Wholesale Jewelry Trade (provided that this subsection shall not prohibit an investment\nby Participant not exceeding five percent of the outstanding securities of a publicly traded company);\n(ii) employ, attempt to employ, or assist anyone in employing a Covered Employee (including by influencing any\nCovered Employee to terminate his/her employment with Tiffany or to accept employment with any Person); or\n(iii) attempt in any manner to solicit jewelry purchases by any client of Tiffany or persuade any client of Tiffany\nto cease doing business or reduce the amount of business that such client has customarily done with Tiffany.\nThe provisions of Section 2(i) above shall not apply if Participant’s employment with Tiffany or Tiffany’s Affiliate is\nterminated by Tiffany or such Affiliate for reasons other than Cause or if, having reached Participant’s Normal\nRetirement Age or Participant’s Change of Control Date, Participant voluntarily resigns from such employment. The\nprovisions of this Section 2 may be waived by the Board, in whole or in part, if deemed by the Board to be in the best\ninterests of Tiffany and Company, provided, however, that if the Participant is, on or within six months prior to\nParticipant’s Termination Date, an officer of Tiffany & Co., a Delaware corporation, then the provisions of this Section 2\nmay only be waived by the Compensation Committee (or its Stock Option Subcommittee) of the Board of Directors of\nsaid Tiffany & Co.\n3. Confidentiality. Participant acknowledges that Participant has had access to Confidential Information. Participant\nagrees not use to the detriment of Tiffany or disclose any Confidential Information. If the Participant is requested in any\ncase by a court or governmental body to make any disclosure of Confidential Information, the\n6\nParticipant shall (i) promptly notify Tiffany in writing, (ii) consult with and assist Tiffany at Tiffany’s expense in\nobtaining an injunction or other appropriate remedy to prevent such disclosure, and (iii) use Participant’s reasonable\nefforts to obtain at the Company’s expense a protective order or other reliable assurance that confidential treatment will\nbe accorded to any Confidential Information that must be disclosed. Subject to the foregoing sentence, Participant may\nfurnish that portion (and only that portion) of the Confidential Information that, in the written opinion of Participant’s\ncounsel (the form and substance of which opinion shall be reasonably acceptable to Tiffany), the Participant is legally\ncompelled or otherwise required to disclose or else stand liable for contempt or suffer other material penalty. The\nobligations in this section shall continue beyond the Duration of the Non-Competition Covenant.\n4. Forfeiture of Equity Awards and Return of Proceeds of Equity Awards in the Event of Breach; Forfeiture of\nVested DCRB Contributions. Should Participant breach Participant’s obligations under Section 2 above, Participant\nshall:\n(i) forfeit and lose all rights under any Equity Award, whether or not such Equity Award shall have vested, and\nsuch Equity Award shall thereupon become null and void;\n(ii) immediately pay to Tiffany and Company the Proceeds of Equity Award for (a) each grant of stock option or\nstock appreciation right that was exercised and (b) each grant of restricted stock or stock units that has vested, in both\ncases (a) and (b), within the following period: beginning 180 days prior to Participant’s Termination Date and including\nthe entire period of the Duration of Non-Competition Covenant;\n(iii) forfeit any Excess DCRB Contributions and Investment Fund performance credited to such contributions in\nParticipant’s Deferred Benefit Accounts that would otherwise be payable to Participant or his Beneficiary under the\nDeferral Plan; and\n(iv) promptly repay to Tiffany and Company any amounts paid from any Excess DCRB Contributions and\nInvestment Fund performance credited to such contributions in Participant’s Deferred Benefit Accounts that have been\npaid to Participant or his Beneficiary under the Deferral Plan prior to such breach.\n5. Enforcement.\n(i) Participant agrees that the restrictions set forth in this instrument are reasonable and necessary to protect the\ngoodwill of Tiffany. If any of the provisions set forth herein is deemed invalid, illegal or unenforceable based upon\nduration, geographic scope or otherwise, Participant agrees that such provision shall be modified to make it enforceable\nto the fullest extent permitted by law.\n(ii) In the event of breach or threatened breach by Participant of the provisions set forth in this instrument,\nParticipant acknowledges that Tiffany will be irreparably harmed and that monetary damages (including loss of the\nBenefit) shall be an insufficient remedy to Tiffany. Therefore, Participant consents to the enforcement of this instrument\n7\nby means of temporary or permanent injunction and other appropriate equitable relief in any competent court, in addition\nto any other remedies Tiffany may have under this Agreement or otherwise.\n6. Procedure to Obtain Determination. Should Participant wish to obtain a determination that any proposed\nemployment, disclosure, arrangement or association (each a “Proposed Transaction”) is not prohibited hereunder,\nParticipant shall direct a written request to the Board. Such request shall fully describe the Proposed Transaction. Within\n30 days after receipt of such request, the Board may (i) issue such a determination in writing, (ii) issue its refusal of such\nrequest in writing, or (iii) issue a written request for more written information concerning the Proposed Transaction. In\nthe event that alternative (iii) is elected (which election may be made on behalf of the Board by the Legal Department of\nTiffany and Company without action by the Board), any action on Participant’s request will be deferred for ten (10) days\nfollowing receipt by said Legal Department of the written information requested. Failure of the Board to act within any\nof the time periods specified in this Section 6 shall be deemed a determination that the Proposed Transaction is not\nprohibited hereunder. A determination made or deemed made under this Section 6 shall be limited in effect to the\nProposed Transaction described in the submitted materials and shall not be binding or constitute a waiver with respect to\nany other Proposed Transaction, whether proposed by such Participant or any other Person. In the event that Participant\nwishes to seek a determination that employment with a management consulting firm, an accounting firm, a law firm or\nsome other provider of consulting services to a wide variety clients will not be prohibited hereunder should such firm, at\nsome unspecified time, provide services to a Person in the Retail Jewelry Trade or the Wholesale Jewelry Trade,\nParticipant may seek a determination hereunder; in submitting such a Proposed Transaction, the Participant should\nspecify the extent that Participant will be involved in or can be excluded from involvement in the provision of such\nservices. In a making any determination under this Section 6, the Board shall not be deemed to be acting as a fiduciary\nwith respect to the Participant or any beneficiary of the Participant and shall be under no obligation to issue a\ndetermination that any Proposed Transaction is not prohibited hereunder.\n7. Arbitration and Equitable Relief. Participant and Tiffany agree that any and all disputes arising out or relating to\nthe interpretation or application of this instrument, including any dispute concerning whether any conduct is in violation\nof Section 2 or 3 above, shall be subject to arbitration in New York, New York, under the then existing Commercial\nArbitration Rules of the American Arbitration Association. Arbitration proceedings shall be conducted by three\narbitrators. Without limit to their general authority, the arbitrators shall have the right to order reasonable discovery in\naccordance with the Federal Rules of Civil Procedure. The final decision of the arbitrators shall be binding and\nenforceable without further legal proceedings in court or otherwise, provided that either party to such arbitration may\nenter judgment upon the award in any court having jurisdiction. The final decision arising from the arbitration shall be\naccompanied by a written opinion and decision which shall describe the rational underlying the award and shall include\nfindings of fact and conclusions of law. The cost of such arbitration shall be borne equally by the parties and each party\nto the arbitration shall bear its own\n8\nattorneys fees. Notwithstanding any provision in this Section 7, the requirement to arbitrate disputes shall not apply to\nany action to enforce this instrument by means of temporary or permanent injunction or other appropriate equitable\nrelief.\n8. Miscellaneous Provisions.\n(a) Tiffany may assign its rights to enforce this instrument to any of its Affiliates. Participant understands and agrees\nthat the promises in this instrument are for the benefit of Tiffany (which term includes the Tiffany and Company and its\nAffiliates) and for the benefit of the successors and assigns of Tiffany and its Affiliates.\n(b) Any determination made by the Board under Section 6 above shall bind Tiffany and Company and its Affiliates.\n(c) The laws of the State of New York, without giving effect to its conflicts of law principles, govern all matters arising\nout of or relating to this instrument and all of the prohibitions and remedies it contemplates, including, without\nlimitation, its validity, interpretation, construction, performance and enforcement.\n(d) Each Person giving or making any notice, request, demand or other communication (each, a “Notice”) pursuant to\nthis Instrument shall\n(i) give the Notice in writing; and\n(ii) use one of the following methods of delivery, each of which for purposes of this Agreement is a writing:\n(A) Personal delivery.\n(B) Registered or Certified Mail, in each case, return receipt requested and postage prepaid.\n(C) Nationally recognized overnight courier, with all fees prepaid.\n(e) Each Person giving a Notice shall address the Notice to the recipient (the “Addressee”) at the address given on the\nsignature page of this Instrument or to a changed address designated in a Notice.\n(f) A Notice is effective only if the person giving the Notice has complied with subsections (d) and (e) and if the\nAddressee has received the Notice. A Notice is deemed to have been received upon receipt as indicated by the date on\nthe signed receipt, provided, however, that if the Addressee rejects or otherwise refuses to accept the Notice, or if the\nNotice cannot be delivered because of a change in address for which no Notice was given, then upon such rejection,\nrefusal or inability to deliver such Notice will be deemed to have been received. Despite the other clauses of this\nsubsection (f), if any Notice is received after 5:00 p.m . on a business day where the Addressee is located, or on\n9\na day that is not a business day where the Addressee is located, then the Notice is deemed received at 9:00 a.m . on the\nnext business day where the Addressee is located.\n(g) This instrument shall not be amended except by a subsequent written instrument that has been executed by\nParticipant and on behalf of Tiffany by a duly authorized officer of Tiffany. Participant’s obligations under this\ninstrument may not be waived, except pursuant to a writing executed on behalf of Tiffany or as otherwise provided in\nSection 6 above.\n(h) This instrument constitutes the final expression of Participant’s post-employment confidentiality and non-\ncompetition obligations. It is the complete and exclusive expression of those obligations and all prior and\ncontemporaneous negotiations and agreement between the parties on those matters are expressly merged into and\nsuperseded by this Agreement.\n(i) Any reference in this instrument to the singular includes the plural where appropriate, and any reference in this\ninstrument to the masculine gender includes the feminine and neuter genders where appropriate. The descriptive\nheadings of the sections of this instrument are for convenience only and do not constitute part of this instrument.\nIN WITNESS WHEREOF, this instrument has been executed on the date first written above.\nParticipant\n__________________________\nName:\nNotice Address:\n__________________________\n__________________________\n__________________________\n10\nAccepted and agreed (as to Section 7)\nTiffany and Company\nBy:______________________\nName:\nTitle:\nNotice Address:\nThe Board of Directors\nTiffany and Company\nCare of:\nLegal Department\n200 Fifth Avenue\nNew York, NY 10022\n11
+ca5c99fea5c8e09d1e7fa6303f61688b.pdf	effective_date jurisdiction party term	EX-99.(E)(4) 3 d371520dex99e4.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(4)\nSTRICTLY CONFIDENTIAL\nJanuary 27, 2012\nSycamore Partners Management, L.L.C.\n9 West 57 Street, 31 Floor\nNew York, New York 10019\nAttention: Stefan Kaluzny\nManaging Director\nDear Mr. Kaluzny:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between\nSycamore Partners Management, L.L .C ., a Delaware limited liability company (the “Receiving Party”) and The Talbots,\nInc., a Delaware corporation (together with its subsidiaries, the “Company”).\n1.\nConfidential Information; Representatives. (a) The Receiving Party is considering a possible\nbusiness combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with\nrespect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible\nTransaction, the Company is prepared to make available to the Receiving Party certain information concerning the\nbusiness, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a\ncondition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals,\npartners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates,\npotential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party,\nthe Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this\nAgreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.\n(b)\nThe term “Confidential Information” shall include, without limitation, any and all information\nconcerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects\nthat is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before\nor after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans,\ncompilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda,\ndocuments or other materials (in whatever form maintained or conveyed, whether\nth\nst\ndocumentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information\nconcerning the Company or its business, operations, strategic initiatives, financing, employees, strategies or prospects\nprepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any\nCompany Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives\ninvolving or relating to the Confidential Information.\n2.\nExcluded Information.\nThe Confidential Information shall not include information that the\nReceiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving\nParty or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to\ndisclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to\nanother confidentiality agreement with the Company or another party, (c) has been independently developed by the\nReceiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving\nParty by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a\nnon-confidential basis.\n3.\nLimitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall,\nand shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible\nTransaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in\nconfidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that\n(i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by\napplicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied\nwith the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the\nConfidential Information to the extent that the Company gives its prior written consent, and (iii) any information\ncontained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably\nrequire access to such information for the purpose of evaluating a possible Transaction and who agree to keep such\ninformation in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not\nmake any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s\nprior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the\nReceiving Party or by any of its Representatives.\n(b)\nThe Receiving Party agrees that, for a period of eighteen months from the date of this Agreement,\nthe Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly,\n(i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or\n(ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee\nof the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the\npossible Transaction or about whom the Receiving Party receives Confidential\n2\nInformation; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such\nemployees of the Company shall not be considered a solicitation or unauthorized hiring.\n(c)\nIf the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information\nby it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such\nunauthorized disclosure or use.\n4.\nNon-Disclosure of Existence of Negotiations. Without the prior written consent of the Company\nor except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not\ndisclose to any person that any discussions or negotiations are taking place between the parties concerning a possible\nTransaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).\n5.\nNo Representations by the Company. The Company will have the exclusive authority to decide\nwhat Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the\nCompany nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates\n(collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential\nInformation available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update\nany Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has\nmade or is making any representation or warranty, express or implied, as to the accuracy or completeness of any\nConfidential Information, and neither the Company nor any of the Company Representatives will have any liability to\nthe Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any\nConfidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and\nwarranties (if any) that are included in any final definitive written agreement that provides for the consummation of a\nnegotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving\nParty and the Company will have legal effect.\n6.\nStandstill Agreement. In consideration of the Confidential Information being furnished to the\nReceiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of\nthis Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the\nConfidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly\nrequested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not\n(and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their\nrespective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any\nproposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner,\nbeneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company\n(including any derivative securities with economic equivalents of ownership of\n3\nany of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the\nCompany, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are\nused in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence\nany person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in\na “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to\nany voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates,\n(d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board\nof directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any\naction that could require the Company to make any public disclosure, with respect to any of the matters set forth in this\nAgreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution\nand delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or\n(g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any\nother persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request\nthe Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this\nSection 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill\nPeriod shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive\nagreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or\nmore of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its\npreviously announced strategic review process without a definitive agreement to sell the Company, (C) the Company\nmakes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization,\ninsolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such\nproceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent\nthereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the\nStandstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the\napplicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders\nmeeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses\n(c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by\nclause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).\n7.\nReturn of Confidential Information.\nPromptly upon the written request of the Company, the\nReceiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports,\nmemoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or\nreflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of\nConfidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be\nbound by their\n4\nconfidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the\nforegoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential\nInformation (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting\nfirms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable\nlaw or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it\nis “backed-up” on its or their (as the case may be) electronic information management and communications systems or\nservers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such\ninformation so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this\nAgreement for a period of eighteen months from the date hereof.\n8.\n2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012\nannual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier\nthan thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the\nCompany’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release\nannouncing the date of its 2012 annual meeting on the date such press release is publicly issued.\n9.\nSubpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses\nthe Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion\nInformation under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another\ngovernmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company\nof the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability\nof taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion\nInformation is required, furnish only such portion of the Confidential Information or Discussion Information as the\nReceiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company,\ncooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the\nConfidential Information or Discussion Information or other reliable assurance that confidential treatment will be\naccorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be\ndisclosed.\n10.\nDefinitive Agreement. Unless and until a definitive written agreement between the Receiving\nParty and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor\nthe Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of\nthis or any other written or oral expression by either of them or their Representatives except, in the case of this\nAgreement, for the matters specifically agreed to herein.\n5\n11.\nRemedies. Each of the parties hereto acknowledges that in the event of any breach of the terms\nof this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties\nhereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction\n(which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.\n12.\nCommunications. Without the Company’s prior written consent, which may be withheld by the\nCompany in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other\nthan through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing,\nany (a) communication concerning the Confidential Information, (b) requests for meetings with management of the\nCompany in connection with the possible Transaction or other transaction between the parties or (c) communication\nrelating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee\nof the Company.\n13.\nSecurities Laws.\nThe Receiving Party acknowledges that it is aware and that the Receiving\nParty and its Representatives have been advised that the United States securities laws prohibit any person having non-\npublic material information about a company from purchasing or selling securities of that company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such\nperson is likely to purchase or sell such securities.\n14.\nEntire Agreement; Amendments.\nThis Agreement represents the entire understanding and\nagreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived\nonly by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or\nwaiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective\nsuccessors and assigns.\n15.\nNo Waiver.\nNo failure or delay by either party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further\nexercise thereof or the exercise of any right, power or privilege hereunder.\n16.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws\nof the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and\nunconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York\nfor purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any\nprocess, summons, notice or document by U.S . registered mail to the address set forth at the end of this Agreement shall\nbe effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and\nunconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to\nthis Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally\n6\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit\nor proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State\nof New York has been brought in an inconvenient forum.\n17.\nExpenses.\nIn the event of litigation relating to this Agreement, if a court of competent\njurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-\nbreaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation,\nincluding any appeal therefrom.\n18.\nCaptions.\nThe Captions contained in this Agreement are for convenience only and shall not\naffect the construction or interpretation of any provisions of this Agreement.\n19.\nCounterparts. This Agreement may be executed in multiple counterparts, each of which shall\nbe deemed to be an original, but all of which shall constitute one and the same Agreement.\n20.\nSeverability. In the event any term of this Agreement is found by any court to be void or\notherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were\nabsent upon the date of its execution.\n21.\nNotices.\nAll notices and other communications required or permitted hereunder will be in\nwriting and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic\nfacsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the\naddress specified below:\nThe Talbots, Inc.\nAttention: Chief Operating Officer\nOne Talbots Drive\nHingham, MA 02043\nTelephone: 781-741-7600\nFacsimile: 781-741-4927\nwith copies to:\nThe Talbots, Inc.\nAttention: General Counsel\n211 South Ridge St.\nRye Brook, NY 10573\nTelephone: 914-934-8877\nFacsimile: 914-934-9136\nand\n7\nDewey & LeBoeuf LLP\nAttention: Morton A. Pierce, Esq.\nChang-Do Gong, Esq.\n1301 Avenue of the Americas\nNew York, NY 10019\nTelephone: 212-259-8000\nFacsimile: 212-259-6333\n22.\nNon-Private Equity Affiliates.\nNotwithstanding anything to the contrary provided elsewhere\nherein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and\nactivities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the\nprivate equity business and (b) the Confidential Information is not made available to Representatives of the Receiving\nParty and its affiliates who are not involved in the private equity business or who are engaged in investments that are not\nprivate equity investments and such ordinary course business services and activities are otherwise conducted without any\nreference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the\nReceiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including,\nwithout limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of\nthe United States).\n23.\nTermination. Except as otherwise specified herein, the obligations of the parties set forth in this\nAgreement shall terminate and be of no further force and effect eighteen months from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n8\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first\nwritten above.\nTHE TALBOTS, INC.\nBy /s/ Richard T. O’Connell, Jr.\nName: Richard T. O’Connell, Jr.\nTitle: Executive Vice President\nSYCAMORE PARTNERS MANAGEMENT,\nL.L.C .\nBy /s/ Stefan Kaluzny\nName: Stefan Kaluzny\nTitle: Managing Director	EX-99.(E)(4) 3 d371520dex99e4.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(4)\nSTRICTLY CONFIDENTIAL\nJanuary 27, 2012\nSycamore Partners Management, L.L.C.\n9 West 57t Street, 31st Floor\nNew York, New York 10019\nAttention: Stefan Kaluzny\nManaging Director\nDear Mr. Kaluzny:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between\nSycamore Partners Management, L.L..C., a Delaware limited liability company (the “Receiving Party”) and The Talbots,\nInc., a Delaware corporation (together with its subsidiaries, the “Company”).\n1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible\nbusiness combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with\nrespect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible\nTransaction, the Company is prepared to make available to the Receiving Party certain information concerning the\nbusiness, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a\ncondition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals,\npartners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates,\npotential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party,\nthe Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this\nAgreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.\n(b) The term “Confidential Information” shall include, without limitation, any and all information\nconcerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects\nthat is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before\nor after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans,\ncompilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda,\ndocuments or other materials (in whatever form maintained or conveyed, whether\ndocumentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information\nconcerning the Company or its business, operations, strategic initiatives, financing, employees, strategies or prospects\nprepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any\nCompany Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives\ninvolving or relating to the Confidential Information.\n2. Excluded Information. = The Confidential Information shall not include information that the\nReceiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving\nParty or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to\ndisclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to\nanother confidentiality agreement with the Company or another party, (c) has been independently developed by the\nReceiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving\nParty by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a\nnon-confidential basis.\n3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall,\nand shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible\nTransaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in\nconfidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that\n(i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by\napplicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied\nwith the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the\nConfidential Information to the extent that the Company gives its prior written consent, and (iii) any information\ncontained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably\nrequire access to such information for the purpose of evaluating a possible Transaction and who agree to keep such\ninformation in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not\nmake any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s\nprior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the\nReceiving Party or by any of its Representatives.\n \n \n(b) The Receiving Party agrees that, for a period of eighteen months from the date of this Agreement,\nthe Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly,\n(i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or\n(ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee\nof the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the\npossible Transaction or about whom the Receiving Party receives Confidential\n2\nInformation; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such\nemployees of the Company shall not be considered a solicitation or unauthorized hiring.\n(0 If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information\nby it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such\nunauthorized disclosure or use.\n4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the Company\nor except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not\ndisclose to any person that any discussions or negotiations are taking place between the parties concerning a possible\nTransaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).\n5. No Representations by the Company. The Company will have the exclusive authority to decide\nwhat Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the\nCompany nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates\n(collectively, the “Company_Representatives”) will be under any obligation to make any particular Confidential\nInformation available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update\nany Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has\nmade or is making any representation or warranty, express or implied, as to the accuracy or completeness of any\nConfidential Information, and neither the Company nor any of the Company Representatives will have any liability to\nthe Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any\nConfidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and\nwarranties (if any) that are included in any final definitive written agreement that provides for the consummation of a\nnegotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving\nParty and the Company will have legal effect.\n6. Standstill Agreement. In consideration of the Confidential Information being furnished to the\nReceiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of\nthis Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the\nConfidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly\nrequested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not\n(and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their\nrespective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any\nproposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner,\nbeneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company\n(including any derivative securities with economic equivalents of ownership of\n3\nany of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the\nCompany, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are\nused in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence\nany person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in\na “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to\nany voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates,\n(d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board\nof directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any\naction that could require the Company to make any public disclosure, with respect to any of the matters set forth in this\nAgreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution\nand delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or\n(g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any\nother persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request\nthe Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this\nSection 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill\nPeriod shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive\nagreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or\nmore of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its\npreviously announced strategic review process without a definitive agreement to sell the Company, (C) the Company\nmakes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization,\ninsolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such\nproceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent\nthereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the\nStandstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the\napplicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders\nmeeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses\n(), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by\nclause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).\n7. Return of Confidential Information.  Promptly upon the written request of the Company, the\nReceiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports,\nmemoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or\nreflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of\nConfidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be\nbound by their\nconfidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the\nforegoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential\nInformation (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting\nfirms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable\nlaw or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it\nis “backed-up” on its or their (as the case may be) electronic information management and communications systems or\nservers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such\ninformation so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this\nAgreement for a period of eighteen months from the date hereof.\n8. 2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012\nannual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier\nthan thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the\nCompany’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release\nannouncing the date of its 2012 annual meeting on the date such press release is publicly issued.\n9. Subpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses\nthe Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion\nInformation under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another\ngovernmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company\nof the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability\nof taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion\nInformation is required, furnish only such portion of the Confidential Information or Discussion Information as the\nReceiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company,\ncooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the\nConfidential Information or Discussion Information or other reliable assurance that confidential treatment will be\naccorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be\ndisclosed.\n10. Definitive Agreement.  Unless and until a definitive written agreement between the Receiving\nParty and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor\nthe Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of\nthis or any other written or oral expression by either of them or their Representatives except, in the case of this\nAgreement, for the matters specifically agreed to herein.\n11. Remedies. Each of the parties hereto acknowledges that in the event of any breach of the terms\nof this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties\nhereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction\n(which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.\n12. Communications. Without the Company’s prior written consent, which may be withheld by the\nCompany in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other\nthan through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing,\nany (a) communication concerning the Confidential Information, (b) requests for meetings with management of the\nCompany in connection with the possible Transaction or other transaction between the parties or (c) communication\nrelating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee\nof the Company.\n13. Securities Laws.  The Receiving Party acknowledges that it is aware and that the Receiving\nParty and its Representatives have been advised that the United States securities laws prohibit any person having non-\npublic material information about a company from purchasing or selling securities of that company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such\nperson is likely to purchase or sell such securities.\n14. Entire Agreement; Amendments.  This Agreement represents the entire understanding and\nagreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived\nonly by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or\nwaiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective\nsuccessors and assigns.\n15. No Waiver.  No failure or delay by either party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further\nexercise thereof or the exercise of any right, power or privilege hereunder.\n16. Governing Law. This Agreement shall be governed and construed in accordance with the laws\nof the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and\nunconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York\nfor purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any\nprocess, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall\nbe effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and\nunconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to\nthis Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally\n6\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit\nor proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State\nof New York has been brought in an inconvenient forum.\n17. Expenses. In the event of litigation relating to this Agreement, if a court of competent\njurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-\nbreaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation,\nincluding any appeal therefrom.\n18. Captions.  The Captions contained in this Agreement are for convenience only and shall not\naffect the construction or interpretation of any provisions of this Agreement.\n19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall\nbe deemed to be an original, but all of which shall constitute one and the same Agreement.\n20. Severability.  In the event any term of this Agreement is found by any court to be void or\notherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were\nabsent upon the date of its execution.\n21. Notices.  All notices and other communications required or permitted hereunder will be in\nwriting and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic\nfacsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the\naddress specified below:\nThe Talbots, Inc.\nAttention: Chief Operating Officer\nOne Talbots Drive\nHingham, MA 02043\nTelephone: 781-741-7600\nFacsimile: 781-741-4927\nwith copies to:\nThe Talbots, Inc.\nAttention: General Counsel\n211 South Ridge St.\nRye Brook, NY 10573\nTelephone: 914-934-8877\nFacsimile: 914-934-9136\nand\nDewey & LeBoeuf LLP\nAttention: Morton A. Pierce, Esq.\nChang-Do Gong, Esq.\n1301 Avenue of the Americas\nNew York, NY 10019\nTelephone: 212-259-8000\nFacsimile: 212-259-6333\n22. Non-Private Equity Affiliates. = Notwithstanding anything to the contrary provided elsewhere\nherein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and\nactivities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the\nprivate equity business and (b) the Confidential Information is not made available to Representatives of the Receiving\nParty and its affiliates who are not involved in the private equity business or who are engaged in investments that are not\nprivate equity investments and such ordinary course business services and activities are otherwise conducted without any\nreference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the\nReceiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including,\nwithout limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of\nthe United States).\n23. Termination. Except as otherwise specified herein, the obligations of the parties set forth in this\nAgreement shall terminate and be of no further force and effect eighteen months from the date hereof.\n[Remainder of Page Intentionally Left Blank]\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first\nwritten above.\nTHE TALBOTS, INC.\nBy_/s/ Richard T. O’Connell, Jr.\nName: Richard T. O’Connell, Jr.\nTitle: Executive Vice President\nSYCAMORE PARTNERS MANAGEMENT,\nL.L.C.\nBy _/s/ Stefan Kaluzny\nName: Stefan Kaluzny\nTitle: Managing Director	EX-99.(E)(4) 3 d371520dex99e4.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(4)\nSTRICTLY CONFIDENTIAL\nJanuary 27, 2012\nSycamore Partners Management, L.L.C.\n9 West 57th Street, 31st Floor\nNew York, New York 10019\nAttention:\nStefan Kaluzny\nManaging Director\nDear Mr. Kaluzny:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this "Agreement") is dated as of January 27, 2012 by and between\nSycamore Partners Management, L.L.C., a Delaware limited liability company (the "Receiving Party.") and The Talbots,\nInc., a Delaware corporation (together with its subsidiaries, the "Company.").\n1.\nConfidential Information; Representatives. (a) The Receiving Party is considering a possible\nbusiness combination transaction (whether negotiated directly with the Company's Board of Directors or otherwise) with\nrespect to the Company (the "Transaction"), and, in order to assist the Receiving Party in evaluating the possible\nTransaction, the Company is prepared to make available to the Receiving Party certain information concerning the\nbusiness, operations, strategy and prospects of the Company (all such information, the "Confidential Information"). As\na\ncondition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals,\npartners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates,\npotential sources of capita and financing, and financial advisors (collectively, "Representatives") of the Receiving Party,\nthe Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this\nAgreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.\n(b)\nThe term "Confidential Information" shall include, without limitation, any and all information\nconcerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects\nthat is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before\nor after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans,\ncompilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda,\ndocuments or other materials (in whatever form maintained or conveyed, whether\ndocumentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information\nconcerning the Company or its business, operations, strategic initiatives, financing, employees, strategies or prospects\nprepared by or on behalf of the Receiving Party, any of the Receiving Party's Representatives, the Company or any\nCompany Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives\ninvolving or relating to the Confidential Information.\n2.\nExcluded Information. The Confidential Information shall not include information that the\nReceiving\nParty\ncan\ndemonstrate\n(a)\nis\nor\nbecomes\navailable\nto\nthe\npublic\nother\nthan\nas\na\nresult\nof\nacts\nby\nthe\nReceiving\nParty or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party's possession prior\nto\ndisclosure by the Company, provided that such information, to the Receiving Party's knowledge, was not subject to\nanother confidentiality agreement with the Company or another party, (c) has been independently developed by the\nReceiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving\nParty by a third party, to the Receiving Party's knowledge, not bound by any duty or obligation of confidentiality on\na\nnon-confidential basis.\n3.\nLimitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall,\nand shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible\nTransaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in\nconfidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that\n(i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by\napplicable\nlaw,\nregulation\nor\nlegal\nor\nregulatory\nprocess;\nprovided,\nthat\nthe\nReceiving\nParty\nshall\nhave\nfirst\ncomplied\nwith the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the\nConfidential Information to the extent that the Company gives its prior written consent, and (iii) any information\ncontained in the Confidential Information may be disclosed to the Receiving Party's Representatives who reasonably\nrequire access to such information for the purpose of evaluating a possible Transaction and who agree to keep such\ninformation in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not\nmake any disclosure of any Confidential Information to any potential sources of equity financing without the Company's\nprior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the\nReceiving Party or by any of its Representatives.\n(b)\nThe Receiving Party agrees that, for a period of eighteen months from the date of this Agreement,\nthe Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly,\n(i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or\n(ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee\nof the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the\npossible Transaction or about whom the Receiving Party receives Confidential\n2\nInformation; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such\nemployees of the Company shall not be considered a solicitation or unauthorized hiring.\n(c)\nIf the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information\nby it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such\nunauthorized disclosure or use.\n4.\nNon-Disclosure of Existence of Negotiations. Without the prior written consent of the Company\nor except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not\ndisclose to any person that any discussions or negotiations are taking place between the parties concerning a possible\nTransaction, including the content, timing and status of such discussions or negotiations (the "Discussion Information").\n5.\nNo Representations by the Company. The Company will have the exclusive authority to\ndecide\nwhat Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the\nCompany nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates\n(collectively, the "Company Representatives") will be under any obligation to make any particular Confidential\nInformation available to the Receiving Party or any of the Receiving Party's Representatives or to supplement or update\nany Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has\nmade\nor\nis\nmaking\nany\nrepresentation\nor\nwarranty,\nexpress\nor\nimplied,\nas\nto\nthe\naccuracy\nor\ncompleteness\nof\nany\nConfidential Information, and neither the Company nor any of the Company Representatives will have any liability to\nthe Receiving Party or to any of the Receiving Party's Representatives relating to or resulting from the use of any\nConfidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and\nwarranties (if any) that are included in any final definitive written agreement that provides for the consummation of a\nnegotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving\nParty and the Company will have legal effect.\n6. Standstill Agreement. In consideration of the Confidential Information being furnished to the\nReceiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of\nthis Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the\nConfidential Information for the purpose of evaluating a possible Transaction, the "Standstill Period"), unless expressly\nrequested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not\n(and\nshall\ncause\nits\naffiliates\nnot\nto\nand\nshall\ncause\nits\nand\ntheir\nrespective\nRepresentatives\nacting\nat\nits\nand\ntheir\nrespective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any\nproposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner,\nbeneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company\n(including any derivative securities with economic equivalents of ownership of\n3\nany of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of\nthe\nCompany, (b) make, or in any way participate in, directly or indirectly, any "'solicitation" of "proxies" (as such terms are\nused in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence\nany person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate\nin\na\n"group"\n(within\nthe\nmeaning\nof\nSection\n13(d)(3)\nof\nthe\nSecurities\nExchange\nAct\nof\n1934,\nas\namended)\nwith\nrespect\nto\nany voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates,\n(d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board\nof directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any\naction that could require the Company to make any public disclosure, with respect to any of the matters set forth in this\nAgreement, other than the required amendment to the Receiving Party's Schedule 13D filing as a result of the execution\nand delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing\nor\n(g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any\nother persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request\nthe Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this\nSection 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill\nPeriod shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive\nagreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or\nmore\nof\nthe\nCompany's\noutstanding\nequity\nsecurities,\n(B)\nthe\nCompany\npublicly\nannounces\nthe\nconclusion\nof\nits\npreviously announced strategic review process without a definitive agreement to sell the Company, (C) the Company\nmakes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization,\ninsolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such\nproceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent\nthereto\nor\nacquiescence\ntherein,\nor\n(2)\nsuch\npetition\napplication\nor\nproceeding\nis\nnot\ndismissed\nwithin\n30\ndays\nand\n(ii)\nthe\nStandstill applicable Period time period solely for with stockholders respect to clause to nominate (b) of this directors Section for 6 election shall terminate at the Company's ten days prior 2012 to the annual expiration stockholders of the\nmeeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses\n(c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by\nclause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).\n7.\nReturn of Confidential Information. Promptly upon the written request of the Company, the\nReceiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports,\nmemoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or\nreflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of\nConfidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be\nbound by their\n4\nconfidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the\nforegoing, (a) the Receiving Party's legal department and/or outside counsel may keep one copy of the Confidential\nInformation (in electronic or paper form) and, with respect to the Receiving Party's Representatives who are accounting\nfirms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable\nlaw\nor\nregulation\nand\n(b)\nthe\nReceiving\nParty\nand\nits\nRepresentatives\nmay\nretain\nConfidential\nInformation\nto\nthe\nextent\nit\nis "backed-up" on its or their (as the case may be) electronic information management and communications systems or\nservers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such\ninformation so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this\nAgreement for a period of eighteen months from the date hereof.\n8.\n2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012\nannual stockholders meeting (with respect to the Company's fiscal year ended January 28, 2012) will be held no earlier\nthan thirty-one days after the first anniversary of the Company's 2011 annual stockholders meeting (with respect\nto\nthe\nCompany's fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release\nannouncing the date of its 2012 annual meeting on the date such press release is publicly issued.\n9.\nSubpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses\nthe Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion\nInformation under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another\ngovernmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company\nof\nthe\nexistence,\nterms\nand\ncircumstances\nsurrounding\nsuch\na\nrequest,\n(b)\nconsult\nwith\nthe\nCompany\non\nthe\nadvisability\nof taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion\nInformation is required, furnish only such portion of the Confidential Information or Discussion Information as the\nReceiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company,\ncooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the\nConfidential Information or Discussion Information or other reliable assurance that confidential treatment will be\naccorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be\ndisclosed.\n10.\nDefinitive Agreement. Unless and until a definitive written agreement between the Receiving\nParty and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor\nthe Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of\nthis or any other written or oral expression by either of them or their Representatives except, in the case of this\nAgreement, for the matters specifically agreed to herein.\n5\n11.\nRemedies. Each of the parties hereto acknowledges that in the event of any breach of the terms\nof this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties\nhereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction\n(which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.\n12. Communications. Without the Company's prior written consent, which may be withheld by the\nCompany in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other\nthan\nthrough\nthe\nCompany's\nfinancial\nand\nlegal\nadvisors\nor\nsuch\nother\npersons,\nas\ndesignated\nby\nthe\nCompany\nin\nwriting,\nany (a) communication concerning the Confidential Information, (b) requests for meetings with management of the\nCompany in connection with the possible Transaction or other transaction between the parties or (c) communication\nrelating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee\nof the Company.\n13.\nSecurities Laws. The Receiving Party acknowledges that it is aware and that the Receiving\nParty and its Representatives have been advised that the United States securities laws prohibit any person having non-\npublic\nmaterial\ninformation\nabout\na\ncompany\nfrom\npurchasing\nor\nselling\nsecurities\nof\nthat\ncompany\nor\nfrom\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such\nperson is likely to purchase or sell such securities.\n14.\nEntire Agreement; Amendments. This Agreement represents the entire understanding and\nagreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived\nonly by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying\nor\nwaiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective\nsuccessors and assigns.\n15.\nNo Waiver. No failure or delay by either party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further\nexercise thereof or the exercise of any right, power or privilege hereunder.\n16.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws\nof the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and\nunconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York\nfor purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any\nprocess, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement shall\nbe\neffective\nservice\nof\nprocess\nfor\nany\naction,\nsuit\nor\nproceeding\nbrought\nagainst\nsuch\nparty;\n(c)\nirrevocably\nand\nunconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to\nthis Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally\n6\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit\nor proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State\nof New York has been brought in an inconvenient forum.\n17.\nExpenses. In the event of litigation relating to this Agreement, if a court of competent\njurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-\nbreaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation,\nincluding any appeal therefrom.\n18.\nCaptions. The Captions contained in this Agreement are for convenience only and shall not\naffect the construction or interpretation of any provisions of this Agreement.\n19.\nCounterparts. This Agreement may be executed in multiple counterparts, each of which shall\nbe deemed to be an original, but all of which shall constitute one and the same Agreement.\n20.\nSeverability. In the event any term of this Agreement is found by any court to be void or\notherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were\nabsent upon the date of its execution.\n21.\nNotices. All notices and other communications required or permitted hereunder will be in\nwriting and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic\nfacsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the\naddress specified below:\nThe Talbots, Inc.\nAttention: Chief Operating Officer\nOne Talbots Drive\nHingham, MA 02043\nTelephone: 781-741-7600\nFacsimile: 781-741-4927\nwith copies to:\nThe Talbots, Inc.\nAttention: General Counsel\n211 South Ridge St.\nRye Brook, NY 10573\nTelephone: 914-934-8877\nFacsimile: 914-934-9136\nand\n7\nDewey & LeBoeuf LLP\nAttention: Morton A. Pierce, Esq.\nChang-Do Gong, Esq.\n1301 Avenue of the Americas\nNew York, NY 10019\nTelephone: 212-259-8000\nFacsimile: 212-259-6333\n22.\nNon-Private Equity Affiliates. Notwithstanding anything to the contrary provided elsewhere\nherein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and\nactivities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the\nprivate equity business and (b) the Confidential Information is not made available to Representatives of the Receiving\nParty and its affiliates who are not involved in the private equity business or who are engaged in investments\nthat\nare\nnot\nprivate equity investments and such ordinary course business services and activities are otherwise conducted without any\nreference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the\nReceiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including,\nwithout limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of\nthe United States).\n23.\nTermination. Except as otherwise specified herein, the obligations of the parties set forth in this\nAgreement shall terminate and be of no further force and effect eighteen months from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n8\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first\nwritten above.\nTHE TALBOTS, INC.\nBy/s/ /Richard T. O'Connell, Jr.\nName: Richard T. O'Connell, Jr.\nTitle: Executive Vice President\nSYCAMORE PARTNERS MANAGEMENT,\nL.L.C.\nBy/ /s/ Stefan Kaluzny\nName: Stefan Kaluzny\nTitle: Managing Director	EX-99.(E)(4) 3 d371520dex99e4.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(4)\nSTRICTLY CONFIDENTIAL\nJanuary 27, 2012\nSycamore Partners Management, L.L.C.\n9 West 57 Street, 31 Floor\nNew York, New York 10019\nAttention: Stefan Kaluzny\nManaging Director\nDear Mr. Kaluzny:\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated as of January 27, 2012 by and between\nSycamore Partners Management, L.L .C ., a Delaware limited liability company (the “Receiving Party”) and The Talbots,\nInc., a Delaware corporation (together with its subsidiaries, the “Company”).\n1.\nConfidential Information; Representatives. (a) The Receiving Party is considering a possible\nbusiness combination transaction (whether negotiated directly with the Company’s Board of Directors or otherwise) with\nrespect to the Company (the “Transaction”), and, in order to assist the Receiving Party in evaluating the possible\nTransaction, the Company is prepared to make available to the Receiving Party certain information concerning the\nbusiness, operations, strategy and prospects of the Company (all such information, the “Confidential Information”). As a\ncondition to the Confidential Information being furnished to the Receiving Party and the directors, officers, principals,\npartners, members, employees, agents, consultants, related investment funds, advisors, attorneys, accountants, affiliates,\npotential sources of capital and financing, and financial advisors (collectively, “Representatives”) of the Receiving Party,\nthe Receiving Party agrees to treat the Confidential Information strictly in accordance with the provisions of this\nAgreement and to otherwise comply, and to cause its Representatives to comply, with all obligations hereinafter set forth.\n(b)\nThe term “Confidential Information” shall include, without limitation, any and all information\nconcerning the Company and its business, operations, strategic initiatives, financing, employees, strategies or prospects\nthat is furnished to the Receiving Party or its Representatives by or on behalf of the Company, whether furnished before\nor after the date of this Agreement, including, without limitation, any written or oral analyses, business or strategic plans,\ncompilations, studies, data, reports, interpretations, projections, forecasts, records, notes, copies, excerpts, memoranda,\ndocuments or other materials (in whatever form maintained or conveyed, whether\nth\nst\ndocumentary, computerized, verbal form or otherwise), that contain or otherwise reflect Confidential Information\nconcerning the Company or its business, operations, strategic initiatives, financing, employees, strategies or prospects\nprepared by or on behalf of the Receiving Party, any of the Receiving Party’s Representatives, the Company or any\nCompany Representatives (as defined below) or that otherwise reflect any conversations with Company Representatives\ninvolving or relating to the Confidential Information.\n2.\nExcluded Information.\nThe Confidential Information shall not include information that the\nReceiving Party can demonstrate (a) is or becomes available to the public other than as a result of acts by the Receiving\nParty or its Representatives in breach of the terms of this Agreement, (b) was in the Receiving Party’s possession prior to\ndisclosure by the Company, provided that such information, to the Receiving Party’s knowledge, was not subject to\nanother confidentiality agreement with the Company or another party, (c) has been independently developed by the\nReceiving Party without reference to, or the use of, any Confidential Information or (d) is disclosed to the Receiving\nParty by a third party, to the Receiving Party’s knowledge, not bound by any duty or obligation of confidentiality on a\nnon-confidential basis.\n3.\nLimitations on Use and Disclosure of Confidential Information. (a) The Receiving Party shall,\nand shall cause its Representatives to, use the Confidential Information solely for the purpose of evaluating a possible\nTransaction. The Receiving Party shall, and shall cause its Representatives to, keep the Confidential Information in\nconfidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that\n(i) the Receiving Party may make disclosure of information contained in the Confidential Information if required by\napplicable law, regulation or legal or regulatory process; provided, that the Receiving Party shall have first complied\nwith the terms of Section 9 hereof, (ii) the Receiving Party may make disclosure of information contained in the\nConfidential Information to the extent that the Company gives its prior written consent, and (iii) any information\ncontained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably\nrequire access to such information for the purpose of evaluating a possible Transaction and who agree to keep such\ninformation in confidence to the same extent as described herein; provided, further, that the Receiving Party shall not\nmake any disclosure of any Confidential Information to any potential sources of equity financing without the Company’s\nprior written consent. The Receiving Party shall be responsible for any breach of the terms of this Agreement by the\nReceiving Party or by any of its Representatives.\n(b)\nThe Receiving Party agrees that, for a period of eighteen months from the date of this Agreement,\nthe Receiving Party shall not (and shall cause its affiliates, subject to Section 22 hereof, not to), directly or indirectly,\n(i) use the Confidential Information to divert or attempt to divert any business or customer of the Company or\n(ii) employ or solicit, or initiate contact for employment with, any (A) director, officer or other senior or key employee\nof the Company or (B) any other employee of the Company whom the Receiving Party meets during its evaluation of the\npossible Transaction or about whom the Receiving Party receives Confidential\n2\nInformation; provided, however, a general advertisement or other recruiting efforts not specifically targeting any such\nemployees of the Company shall not be considered a solicitation or unauthorized hiring.\n(c)\nIf the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information\nby it or its Representatives, the Receiving Party hereby covenants to promptly notify the Company in writing of any such\nunauthorized disclosure or use.\n4.\nNon-Disclosure of Existence of Negotiations. Without the prior written consent of the Company\nor except as may be required by applicable law or regulation, the Receiving Party and its Representatives shall not\ndisclose to any person that any discussions or negotiations are taking place between the parties concerning a possible\nTransaction, including the content, timing and status of such discussions or negotiations (the “Discussion Information”).\n5.\nNo Representations by the Company. The Company will have the exclusive authority to decide\nwhat Confidential Information (if any) is to be made available to the Receiving Party and its Representatives. Neither the\nCompany nor any of its directors, officers, employees, agents, consultants, advisors, attorneys, accountants and affiliates\n(collectively, the “Company Representatives”) will be under any obligation to make any particular Confidential\nInformation available to the Receiving Party or any of the Receiving Party’s Representatives or to supplement or update\nany Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has\nmade or is making any representation or warranty, express or implied, as to the accuracy or completeness of any\nConfidential Information, and neither the Company nor any of the Company Representatives will have any liability to\nthe Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of any\nConfidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and\nwarranties (if any) that are included in any final definitive written agreement that provides for the consummation of a\nnegotiated transaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving\nParty and the Company will have legal effect.\n6.\nStandstill Agreement. In consideration of the Confidential Information being furnished to the\nReceiving Party pursuant to this Agreement, the Receiving Party agrees that, for a period of one year from the date of\nthis Agreement (or, such shorter period agreed to by the Company with a third party who is provided access to the\nConfidential Information for the purpose of evaluating a possible Transaction, the “Standstill Period”), unless expressly\nrequested by the Company or its Board of Directors (or any committee thereof) in writing, the Receiving Party shall not\n(and shall cause its affiliates not to and shall cause its and their respective Representatives acting at its and their\nrespective behalf not to): (a) in any manner acting alone or in concert with others, acquire, agree to acquire or make any\nproposal to acquire, directly or indirectly, by means of purchase, merger, business combination or in any other manner,\nbeneficial ownership of any securities of the Company, direct or indirect rights to acquire any securities of the Company\n(including any derivative securities with economic equivalents of ownership of\n3\nany of such securities), any right to vote or to direct the voting of any securities of the Company or any assets of the\nCompany, (b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are\nused in the proxy rules of the Securities and Exchange Commission) or consents to vote, or seek to advise or influence\nany person with respect to the voting of, any voting securities of the Company, (c) form, join or in any way participate in\na “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) with respect to\nany voting securities of the Company, other than any group comprised solely of the Receiving Party and its affiliates,\n(d) otherwise act, alone or in concert with others, to seek to control, advise, change or influence the management, board\nof directors, governing instruments, policies or affairs of the Company, (e) make any public disclosure, or take any\naction that could require the Company to make any public disclosure, with respect to any of the matters set forth in this\nAgreement, other than the required amendment to the Receiving Party’s Schedule 13D filing as a result of the execution\nand delivery of this Agreement, (f) disclose any intention, plan or arrangement inconsistent with the foregoing or\n(g) have any discussions or enter into any arrangements (whether written or oral) with, or advise, assist or encourage any\nother persons in connection with any of the foregoing. The Receiving Party also agrees during such period not to request\nthe Company or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this\nSection 6 (including this sentence). Notwithstanding any provision in this Agreement to the contrary, (i) the Standstill\nPeriod shall terminate immediately if, after the date of this Agreement, (A) the Company enters into a definitive\nagreement with a third party to effectuate a sale of 50% or more of the consolidated assets of the Company or 50% or\nmore of the Company’s outstanding equity securities, (B) the Company publicly announces the conclusion of its\npreviously announced strategic review process without a definitive agreement to sell the Company, (C) the Company\nmakes an assignment for the benefit of creditors or commences any proceeding under any bankruptcy reorganization,\ninsolvency, dissolution or liquidation law of any jurisdiction or (D) any bankruptcy petition is filed or any such\nproceeding is commenced against the Company and either (1) the Company indicates its approval thereof, consent\nthereto or acquiescence therein, or (2) such petition application or proceeding is not dismissed within 30 days and (ii) the\nStandstill Period solely with respect to clause (b) of this Section 6 shall terminate ten days prior to the expiration of the\napplicable time period for stockholders to nominate directors for election at the Company’s 2012 annual stockholders\nmeeting to be scheduled in accordance with Section 8 hereof (and, for the avoidance of doubt, the restrictions in clauses\n(c), (d), (e), (f) and (g) of this Section 6 shall not apply to the activities that were previously expressly prohibited by\nclause (b) of this Section 6 in the event the restrictions in clause (b) are terminated pursuant to this clause (ii)).\n7.\nReturn of Confidential Information.\nPromptly upon the written request of the Company, the\nReceiving Party will return all copies of the Confidential Information to the Company, and all notes, studies, reports,\nmemoranda and other documents or materials prepared by the Receiving Party or its Representatives that contain or\nreflect any Confidential Information shall be destroyed. Notwithstanding the return to the Company or destruction of\nConfidential Information pursuant to this Section 7, the Receiving Party and its Representatives will continue to be\nbound by their\n4\nconfidentiality obligations and other obligations under this Agreement for the term hereof. Notwithstanding the\nforegoing, (a) the Receiving Party’s legal department and/or outside counsel may keep one copy of the Confidential\nInformation (in electronic or paper form) and, with respect to the Receiving Party’s Representatives who are accounting\nfirms, such firms may keep one copy of the Confidential Information, in each case, if required to comply with applicable\nlaw or regulation and (b) the Receiving Party and its Representatives may retain Confidential Information to the extent it\nis “backed-up” on its or their (as the case may be) electronic information management and communications systems or\nservers, is not available to an end user and cannot be expunged without considerable effort; provided, that any such\ninformation so retained pursuant to clauses (a) and (b) of this Section 7 shall be held in compliance with the terms of this\nAgreement for a period of eighteen months from the date hereof.\n8.\n2012 Annual Stockholders Meeting. The Company agrees (a) that the meeting date for its 2012\nannual stockholders meeting (with respect to the Company’s fiscal year ended January 28, 2012) will be held no earlier\nthan thirty-one days after the first anniversary of the Company’s 2011 annual stockholders meeting (with respect to the\nCompany’s fiscal year ended January 29, 2011) and (b) to provide the Receiving Party a copy of the press release\nannouncing the date of its 2012 annual meeting on the date such press release is publicly issued.\n9.\nSubpoena or Court Order. In the event that the Receiving Party or anyone to whom it discloses\nthe Confidential Information receives a request to disclose all or any part of the Confidential Information or Discussion\nInformation under the terms of a subpoena or other order issued by a court of competent jurisdiction or by another\ngovernmental agency, the Receiving Party shall if permitted pursuant to applicable law (a) promptly notify the Company\nof the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability\nof taking steps to resist or narrow such request, (c) if disclosure of such Confidential Information or Discussion\nInformation is required, furnish only such portion of the Confidential Information or Discussion Information as the\nReceiving Party is advised by its legal counsel is legally required to be disclosed and (d) if requested by the Company,\ncooperate with the Company in its efforts to obtain a protective order or other relief to prevent the disclosure of the\nConfidential Information or Discussion Information or other reliable assurance that confidential treatment will be\naccorded to such portion of the Confidential Information or Discussion Information, as applicable, that is required to be\ndisclosed.\n10.\nDefinitive Agreement. Unless and until a definitive written agreement between the Receiving\nParty and the Company with respect to a Transaction has been executed and delivered, neither the Receiving Party nor\nthe Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of\nthis or any other written or oral expression by either of them or their Representatives except, in the case of this\nAgreement, for the matters specifically agreed to herein.\n5\n11.\nRemedies. Each of the parties hereto acknowledges that in the event of any breach of the terms\nof this Agreement, the other party could not be made whole by monetary damages only. Accordingly, each of the parties\nhereto, in addition to any other remedy to which it may be entitled in law or in equity, shall be entitled to an injunction\n(which shall include a temporary restraining order) to prevent breaches of the terms of this Agreement.\n12.\nCommunications. Without the Company’s prior written consent, which may be withheld by the\nCompany in its sole discretion, the Receiving Party shall not (and shall cause its Representatives not to) initiate, other\nthan through the Company’s financial and legal advisors or such other persons, as designated by the Company in writing,\nany (a) communication concerning the Confidential Information, (b) requests for meetings with management of the\nCompany in connection with the possible Transaction or other transaction between the parties or (c) communication\nrelating to the business of the Company or the possible Transaction, in each case, with any officer, director or employee\nof the Company.\n13.\nSecurities Laws.\nThe Receiving Party acknowledges that it is aware and that the Receiving\nParty and its Representatives have been advised that the United States securities laws prohibit any person having non-\npublic material information about a company from purchasing or selling securities of that company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such\nperson is likely to purchase or sell such securities.\n14.\nEntire Agreement; Amendments.\nThis Agreement represents the entire understanding and\nagreement of the parties hereto with respect to the matters contained herein, and may be amended, modified or waived\nonly by a separate writing executed by the Receiving Party and the Company expressly so amending, modifying or\nwaiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective\nsuccessors and assigns.\n15.\nNo Waiver.\nNo failure or delay by either party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further\nexercise thereof or the exercise of any right, power or privilege hereunder.\n16.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws\nof the State of New York, without regard to the laws of conflict of laws. Each of the parties hereto: (a) irrevocably and\nunconditionally consents and submits to the jurisdiction of the state and federal courts located in the State of New York\nfor purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any\nprocess, summons, notice or document by U.S . registered mail to the address set forth at the end of this Agreement shall\nbe effective service of process for any action, suit or proceeding brought against such party; (c) irrevocably and\nunconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to\nthis Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally\n6\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit\nor proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State\nof New York has been brought in an inconvenient forum.\n17.\nExpenses.\nIn the event of litigation relating to this Agreement, if a court of competent\njurisdiction determines that a party has breached this Agreement, then such party shall be liable and pay to the non-\nbreaching party the legal fees and expenses such non-breaching party has incurred in connection with such litigation,\nincluding any appeal therefrom.\n18.\nCaptions.\nThe Captions contained in this Agreement are for convenience only and shall not\naffect the construction or interpretation of any provisions of this Agreement.\n19.\nCounterparts. This Agreement may be executed in multiple counterparts, each of which shall\nbe deemed to be an original, but all of which shall constitute one and the same Agreement.\n20.\nSeverability. In the event any term of this Agreement is found by any court to be void or\notherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were\nabsent upon the date of its execution.\n21.\nNotices.\nAll notices and other communications required or permitted hereunder will be in\nwriting and will be deemed to have been duly given when delivered in person or when dispatched by email or electronic\nfacsimile transfer (with such facsimile confirmed in writing by mail simultaneously dispatched) to the Company at the\naddress specified below:\nThe Talbots, Inc.\nAttention: Chief Operating Officer\nOne Talbots Drive\nHingham, MA 02043\nTelephone: 781-741-7600\nFacsimile: 781-741-4927\nwith copies to:\nThe Talbots, Inc.\nAttention: General Counsel\n211 South Ridge St.\nRye Brook, NY 10573\nTelephone: 914-934-8877\nFacsimile: 914-934-9136\nand\n7\nDewey & LeBoeuf LLP\nAttention: Morton A. Pierce, Esq.\nChang-Do Gong, Esq.\n1301 Avenue of the Americas\nNew York, NY 10019\nTelephone: 212-259-8000\nFacsimile: 212-259-6333\n22.\nNon-Private Equity Affiliates.\nNotwithstanding anything to the contrary provided elsewhere\nherein, none of the provisions of this Agreement shall in any way limit the ordinary course business services and\nactivities of the Receiving Party and its affiliates; provided, that (a) such services and activities are distinct from the\nprivate equity business and (b) the Confidential Information is not made available to Representatives of the Receiving\nParty and its affiliates who are not involved in the private equity business or who are engaged in investments that are not\nprivate equity investments and such ordinary course business services and activities are otherwise conducted without any\nreference to, or use of, the Confidential Information. The Receiving Party further represents to the Company that the\nReceiving Party has implemented appropriate internal restrictions on the sharing of confidential information (including,\nwithout limitation, the implementation of ethical walls around certain affiliates, to comply with federal securities laws of\nthe United States).\n23.\nTermination. Except as otherwise specified herein, the obligations of the parties set forth in this\nAgreement shall terminate and be of no further force and effect eighteen months from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n8\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first\nwritten above.\nTHE TALBOTS, INC.\nBy /s/ Richard T. O’Connell, Jr.\nName: Richard T. O’Connell, Jr.\nTitle: Executive Vice President\nSYCAMORE PARTNERS MANAGEMENT,\nL.L.C .\nBy /s/ Stefan Kaluzny\nName: Stefan Kaluzny\nTitle: Managing Director
+cb2b5e52b15ab5d6aa80c0c9ee3c18c1.pdf	effective_date jurisdiction party term	EX-10 .8 3 ex10_8.txt NON COMPETE AGREEMENT COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT PARTIES: Thomas E. Clarke\n(EMPLOYEE) NIKE, Inc. , a n Oregon corporation, and its divisions, subsidiaries and affiliates (NIKE) DATE: August 31, 1994 RECITALS: A. This Covenant Not to\nCompete is executed upon the EMPLOYEE's advancement to the position of President and nomination to the Board of Directors of NIKE. B . Over the course of\nEMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or in a position to generate confidential information including but not\nlimited to confidential techniques, methods, styles, designs and design concepts, developments, customer lists, vendor lists, contract factory lists, pricing\ninformation, manufacturing plans, business plans, marketing plans, sales information, methods of operation, knowledge and data relating to processes, products,\nmachines, compounds and compositions, formulae, lasts and molds. It is anticipated that EMPLOYEE will continue to be exposed to confidential information, will\nbe exposed to more confidential information and to confidential information of greater sensitivity as EMPLOYEE advances in the company. This confidential\ninformation is information peculiar to NIKE's business. The nature of NIKE's business is highly competitive and disclosure of any confidential information would\nresult in severe damage to NIKE and be difficult to measure. C . NIKE makes use of the confidential information described in paragraph B above throughout the\nworld. This confidential information of NIKE can be used to NIKE's detriment anywhere in the world. D . The provisions of this Covenant Not to Compete and\nNon-Disclosure Agreement are a condition of EMPLOYEE's employment advancement with NIKE. E . The provisions of this Covenant Not to Compete and\nNon-Disclosure Agreement are reasonable. AGREEMENTS: 1. COVENANT NOT TO COMPETE . During the period of time EMPLOYEE is employed by NIKE,\nunder the terms of any employment contract or otherwise, and for one (1) year thereafter, EMPLOYEE will not directly or indirectly, own, manage, operate, join,\ncontrol, or participate in the ownership, management, operation or control of, or be employed by or connected in any manner with, any business engaged\nanywhere in the world in the athletic footwear business, athletic apparel business, or any other business which directly competes with NIKE or any of its\nsubsidiaries or affiliated corporations. This provision is (a) subject to NIKE's option to waive all or any portion of the one (1) year time period of non-competition\nfollowing termination more specifically provided for in paragraph 2; and (b) subject to NIKE's option to specifically identify, at the time of termination, those\nbusinesses which EMPLOYEE may not be employed by or connected with for the period of non-competition. NIKE agrees to act in good faith in its exercise of the\nabove-noted options. 2 . ADDITIONAL CONSIDERATION . a. As additional consideration for the covenant not to compete described in paragraph 1 above, it is\nagreed that: (i) If EMPLOYEE voluntarily leaves the employ of NIKE, NIKE shall pay EMPLOYEE a monthly payment equal to one- half (1/2) of EMPLOYEE's last\nmonthly salary for the one (1) year period after termination of employment, payable on the first day of each month, or (ii) If EMPLOYEE is involuntarily terminated,\nNIKE shall pay EMPLOYEE a monthly payment equal to EMPLOYEE's last monthly salary for the one (1) year period after termination of employment, payable\non the first day of each month. b. NIKE has the option, for whatever reason, to elect to waive all or a portion of the one (1) year period of non- competition\nfollowing termination, by giving EMPLOYEE written notice of such election not less than 30 (thirty) days prior to the effective date of the waiver. In that event,\nNIKE shall not be obligated to pay EMPLOYEE under this paragraph for any months as to which the covenant not to compete has been waived. 3 . LESSER\nRESTRICTIONS. Should any of the terms of paragraphs 1 and 2 above be found unreasonable or invalid by any court of competent jurisdiction, the parties agree\nto accept as binding, in lieu thereof, the maximum terms enforceable by law. 4. EXTENSION OF TIME . The covenant not to compete described in paragraphs 1,\n2 and 3 above shall be extended by a time period equal to any time consumed in enforcement of the obligations hereunder during which EMPLOYEE engaged in\nactivities violating the covenant not to compete. 5 . NON-DISCLOSURE AGREEMENT. During the period of employment by NIKE and forever thereafter,\nEMPLOYEE will hold in confidence all information of a confidential nature, including but not limited to the information described in Recital "B", (all of which\ninformation of a confidential nature shall hereinafter be referred to as "confidential information") and will not, at any time, directly or indirectly, use any confidential\ninformation for any purpose outside the scope of EMPLOYEE's employment with NIKE or disclose any confidential information to any person or organization\nwithout the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE shall not ever copy, transmit, reproduce, summarize, quote,\npublish or make any commercial or other use whatsoever of any confidential information without the prior written consent of NIKE. 6. RETURN OF\nCONFIDENTIAL INFORMATION. Upon termination and upon written request by NIKE at any time, EMPLOYEE shall return to NIKE all documents, records,\nnotebooks and other similar repositories of or containing confidential information, including all copies thereof, then in EMPLOYEE's possession, whether prepared\nby EMPLOYEE or others, and deliver to NIKE any and all other confidential information, in whatever form, that may be in EMPLOYEE's possession or under\nEMPLOYEE's control. 7 . UNAUTHORIZED USE . During the period of employment with NIKE and thereafter, EMPLOYEE shall notify NIKE immediately of the\nunauthorized possession, use or knowledge of any confidential information by any person employed or not employed by NIKE at the time of such possession, use\nor knowledge. EMPLOYEE shall promptly furnish details of such possession, use or knowledge to NIKE, will assist in preventing the reoccurrence of such\npossession, use or knowledge, and shall cooperate with NIKE in any litigation against third parties deemed necessary by NIKE to protect the confidential\ninformation. EMPLOYEE's compliance with this paragraph shall not be construed in any way as a waiver of any of NIKE's rights or remedies against EMPLOYEE\narising out of or related to such unauthorized possession, use or knowledge. 8. INJUNCTIVE RELIEF. The remedy at law for any breach of this Covenant Not to\nCompete and Non-Disclosure Agreement will be inadequate. It is reasonable to require that EMPLOYEE not compete with NIKE in order to protect NIKE from\nunfair use of the confidential information. NIKE shall be entitled to injunctive relief in addition to any other remedy it may have. A breach of this Covenant Not to\nCompete and Non-Disclosure Agreement during the period of EMPLOYEE'S employment with NIKE shall be considered a breach of the terms of that\nemployment and NIKE shall have the right to terminate EMPLOYEE's employment in addition to any other rights or remedies NIKE may have. 9. WAIVER ,\nAMENDMENT, MODIFICATION OR CANCELLATION . No waiver, amendment, modification or cancellation of any term or condition of this Covenant Not to\nCompete and Non-Disclosure Agreement shall be effective unless executed in writing by the party charged therewith. No written waiver shall excuse the\nperformance of any act other than the act or acts specifically referred to therein. 10 . APPLICABLE LAW/JURISDICTION/VENUE. This Covenant Not to Compete\nand Non-Disclosure Agreement, and EMPLOYEE's employment hereunder, shall be construed according to the laws of the state of Oregon and EMPLOYEE\nhereby submits to the jurisdiction of the courts of the state of Oregon and waives application of any foreign law relating to this Agreement and EMPLOYEE's\nemployment by NIKE. Any suit or action of any kind relating to this Agreement or the subject matter hereof shall be brought in a court located in Washington\nCounty, Oregon. EMPLOYEE NIKE , Inc. By: /s/ Thomas E. Clarke By: /s/ Philip H. Knight __________________________ __________________________\nName: Thomas E. Clarke Name: Philip H. Knight	EX-10.8 3 ex10_8.txtNON COMPETE AGREEMENT COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT PARTIES: Thomas E. Clarke\n(EMPLOYEE) NIKE, Inc., an Oregon corporation, and its divisions, subsidiaries and affiliates (NIKE) DATE: August31, 1994 RECITALS: A. This Covenant Not to\nCompete is executed upon the E M P LOYEE 's advancement to the position of President and nomination to the Board of Directors of N IKE. B. Over the course of\nE M PLOYE E's employment with N IKE, E M P LOYE E will be or has been exposed to and/or in a position to generate confidential information including but not\nlimited to confidential techniques, methods, styles, designs and design concepts, developments, customer lists, vendor lists, contractfactory lists, pricing\ninformation, manufacturing plans, business plans, marketing plans, sales information, methods ofoperation, knowledge and data relating to processes, products,\nmachines, compounds and compositions, formulae, lasts and molds. It is anticipated that E M P LOYE E will continue to be exposed to confidential information, will\nbe exposed to more confidential information and to confidential information ofgreater sensitivity as E M P LOYE E advances in the company. This confidential\ninformation is information peculiar to N IKE '5 business. The nature of NIKE '5 business is highly competitive and disclosure of any confidential information would\nresult in severe damage to NIKE and be difficult to measure. C. NIKE makes use of the confidential information described in paragraph B above throughoutthe\nworld. This confidential information of NIKE can be used to NIKE's detriment anywhere in the world. D. The provisions ofthis Covenant Not to Compete and\nNon-Disclosure Agreement are a condition of E M P LOYE E's employment advancementwith NIKE. E. The provisions of this Covenant Not to Compete and\nNon-Disclosure Agreement are reasonable. AG RE E M E NTS: 1. COVE NANT NOT TO COM P ETE. During the period of time E M P LOYE E is employed by NIKE,\nunder the terms of any employment contract or otherwise, and for one (1) year thereafter, E M P LOY E E will not directly or indirectjy, own, manage, operate, join,\ncontrol, or participate in the ownership, management, operation or control of, or be employed by or connected in any manner with, any business engaged\nanywhere in the world in the athletic footwear business, athletic apparel business, or any other business which directly competes with NIKE or any of its\nsubsidiaries or affiliated corporations. This provision is (a) subject to N IKE '5 option to waive all or any portion ofthe one (1) year time period of non-competition\nfollowing termination more specifically provided for in paragraph 2; and (b) subject to NIKE '5 option to specifically identify, atthe time of termination, those\nbusinesses which E M P LOYEE may not be employed by or connected with for the period of non-competition. NIKE agrees to act in good faith in its exercise of the\nabove-noted options. 2. ADDITIONAL CONSIDE RATION. a. As additional consideration for the covenant not to compete described in paragraph 1 above, it is\nagreed that: (i) If E M P LOY E E voluntarily leaves the employ of N IKE, N IKE shall pay E M P LOY E E a monthly payment equal to one- half (1/2) of E M P LOY E E's last\nmonthly salary for the one (1) year period after termination ofemployment, payable on the firstday ofeach month, or (ii) If E M PLOYE E is involuntarily terminated,\nNIKE shall pay E M P LOY E E a monthly payment equal to E M P LOY E E '5 last monthly salary for the one (1) year period after termination of employment, payable\non the firstday ofeach month. b. NIKE has the option, for whatever reason, to elect to waive all or a portion of the one (1) year period of non- competition\nfollowing termination, by giving E M P LOYE E written notice ofsuch election not less than 30 (thirty) days prior to the effective date of the waiver. In thatevent,\nNIKE shall not be obligated to pay E M P LOYE E under this paragraph for any months as to which the covenant notto compete has been waived. 3. LESSE R\nRESTRICTIONS. Should any ofthe terms ofparagraphs 1 and 2 above be found unreasonable or invalid by any court ofcompetentjurisdiction, the parties agree\nto accept as binding, in lieu thereof, the maximum terms enforceable by law. 4. EXTENSION OF TIM E. The covenant not to compete described in paragraphs 1,\n2 and 3 above shall be extended by a time period equal to any time consumed in enforcementof the obligations hereunder during which E M P LOYE E engaged in\nactivities violating the covenant not to compete. 5. NON-DISC LOSU RE AGRE E M E NT. During the period ofemployment by NIKE and forever thereafter,\nE M PLOYE E will hold in confidence all information of a confidential nature, including but not limited to the information described in Recital "B", (all ofwhich\ninformation of a confidential nature shall hereinafter be referred to as "confidential information") and will not, at any time, directly or indirectly, use any confidential\ninformation for any purpose outside the scope of E M P LOYE E's employmentwith NIKE or disclose any confidential information to any person or organization\nwithout the prior written consent of N IKE. Specifically, but not by way of limitation, E M P LOYE E shall not ever copy, transmit, reproduce, summarize, quote,\npublish or make any commercial or other use whatsoever of any confidential information withoutthe prior written consentof NIKE. 6. RETU RN OF\nCONFIDENTIAL INFORMATION. Upon termination and upon written requestby NIKE atany time, EMPLOYEE shall return to NIKE all documents, records,\nnotebooks and other similar repositories ofor containing confidential information, including all copies thereof, then in EM P LOYE E's possession, whether prepared\nby E M P LOYE E or others, and deliver to N IKE any and all other confidential information, in whatever form, that may be in E M P LOYEE 's possession or under\nE M PLOYE E's control. 7. UNAUTHORIZE D USE. During the period of employmentwith NIKE and thereafter, E M P LOYEE shall notify N IKE immediately ofthe\nunauthorized possession, use or knowledge of any confidential information by any person employed or notemployed by NIKE atthe time of such possession, use\nor knowledge. E M P LOYE E shall promptly furnish details ofsuch possession, use or knowledge to N IKE, will assist in preventing the reoccurrence ofsuch\npossession, use or knowledge, and shall cooperate with N IKE in any litigation against third parties deemed necessary by N IKE to protect the confidential\ninformation. E M PLOYE E's compliance with this paragraph shall not be construed in any way as a waiver of any of N IKE '5 rights or remedies against E M PLOYE E\narising out ofor related to such unauthorized possession, use or knowledge. 8. IN) U NCTIVE RE LIEF. The remedy at law for any breach ofthis Covenant Notto\nCompete and Non-Disclosure Agreement will be inadequate. It is reasonable to require that E M P LOYE E notcompete with N IKE in order to protect N IKE from\nunfair use of the confidential information. N IKE shall be entitled to injunctive relief in addition to any other remedy it may have. A breach ofthis Covenant Notto\nCompete and Non-Disclosure Agreement during the period of E M PLOYE E 'S employmentwith N IKE shall be considered a breach ofthe terms of that\nemployment and N IKE shall have the rightto terminate E M PLOYE E's employment in addition to any other rights or remedies N IKE may have. 9. WAIVER,\nAM EN DM ENT, MODIFICATION OR CANC E LLATION. No waiver, amendment, modification or cancellation of any term or condition of this Covenant Not to\nCompete and Non-Disclosure Agreement shall be effective unless executed in writing by the party charged therewith. No written waiver shall excuse the\nperformance of any actother than the actor acts specifically referred to therein. 10. AP P LICAB LE LAW/J URISDICTIONNE NUE. This Covenant Notto Compete\nand Non-Disclosure Agreement, and E M P LOYE E's employment hereunder, shall be construed according to the laws ofthe state ofOregon and E M P LOYE E\nhereby submits to the jurisdiction ofthe courts ofthe state ofOregon and waives application of any foreign law relating to this Agreement and E M P LOYEE '5\nemployment by N IKE. Any suitor action of any kind relating to this Agreement or the subject matter hereofshall be brought in a court located in Washington\nCounty, Oregon. EMPLOYEE NIKE, Inc. By: /s/Thomas E. Clarke By: /s/ Philip H. Knight\nName: Thomas E. Clarke Name: Philip H. Knight	EX-10.8 NON COMPETE AGREEMENT COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT PARTIES: Thomas E. Clarke\n(EMPLOYEE) NIKE, Inc., an Oregon corporation, and its divisions, subsidiaries and affiliates (NIKE) DATE: August 31, 1994 RECITALS: A. This Covenant Not to\nCompete is executed upon the EMPLOYEE'S advancement to the position of President and nomination to the Board of Directors of NIKE. B. Over the\ncourse\nof\nEMPLOYEE'S employment with NIKE, EMPLOYEE will be or has been exposed to and/or in a position to generate confidential information including but not\nlimited to confidential techniques, methods, styles, designs and design concepts, developments, customer lists, vendor lists, contract factory lists, pricing\ninformation, manufacturing plans, business plans, marketing plans, sales information, methods of operation, knowledge and data relating to processes, products,\nmachines, compounds and compositions, formulae, lasts and molds. It is anticipated that EMPLOYEE will continue to be exposed to confidential information,\nwill\nbe exposed to more confidential information and to confidential information of greater sensitivity as EMPLOYEE advances in the company. This confidential\ninformation is information peculiar to NIKE's business. The nature of NIKE's business is highly competitive and disclosure of any confidential information would\nresult in severe damage to NIKE and be difficult to measure. C. NIKE makes use of the confidential information described in paragraph B above throughout the\nworld. This confidential information of NIKE can be used to NIKE'S detriment anywhere in the world. D. The provisions of this Covenant Not to Compete and\nNon-Disclosure Agreement are a condition of EMPLOYEE's employment advancement with NIKE. E. The provisions of this Covenant Not to Compete and\nNon-Disclosure Agreement are reasonable. AGREEMENTS: 1. COVENANT NOT TO COMPETE. During the period of time EMPLOYEE is employed by NIKE,\nunder the terms of any employment contract or otherwise, and for one (1) year thereafter, EMPLOYEE will not directly or indirectly, own, manage, operate, join,\ncontrol, or participate in the ownership, management, operation or control of, or be employed by or connected in any manner with, any business engaged\nanywhere in the world in the athletic footwear business, athletic apparel business, or any other business which directly competes with NIKE or any of its\nsubsidiaries or affiliated corporations. This provision is (a) subject to NIKE'S option to waive all or any portion of the one (1) year time period of non-competition\nfollowing termination more specifically provided for in paragraph 2; and (b) subject to NIKE'S option to specifically identify, at the time of termination, those\nbusinesses which EMPLOYEE may not be employed by or connected with for the period of non-competition. NIKE agrees to act in good faith in its exercise of the\nabove-noted options. 2. ADDITIONAL CONSIDERATION. a. As additional consideration for the covenant not to compete described in paragraph 1 above, it is\nagreed that: (i) If EMPLOYEE voluntarily leaves the employ of NIKE, NIKE shall pay EMPLOYEE a monthly payment equal to one- half (1/2) of EMPLOYEE'S last\nmonthly salary for the one (1) year period after termination of employment, payable on the first day of each month, or (ii) If EMPLOYEE is involuntarily terminated,\nNIKE shall pay EMPLOYEE a monthly payment equal to EMPLOYEE'S last monthly salary for the one (1) year period after termination of employment, payable\non the first day of each month. b. NIKE has the option, for whatever reason, to elect to waive all or a portion of the one (1) year period of non- competition\nfollowing termination, by giving EMPLOYEE written notice of such election not less than 30 (thirty) days prior to the effective date of the waiver. In that event,\nNIKE shall not be obligated to pay EMPLOYEE under this paragraph for any months as to which the covenant not to compete has been waived. 3. LESSER\nRESTRICTIONS. Should any of the terms of paragraphs 1 and 2 above be found unreasonable or invalid by any court of competent jurisdiction, the parties agree\nto accept as binding, in lieu thereof, the maximum terms enforceable by law. 4. EXTENSION OF TIME. The covenant not to compete described in paragraphs 1,\n2 and 3 above shall be extended by a time period equal to any time consumed in enforcement of the obligations hereunder during which EMPLOYEE engaged in\nactivities violating the covenant not to compete. 5. NON-DISCLOSURE AGREEMENT. During the period of employment by NIKE and forever thereafter,\nEMPLOYEE will hold in confidence all information of a confidential nature, including but not limited to the information described in Recital "B", (al of which\ninformation of a confidential nature shall hereinafter be referred to as "confidential information") and will not, at any time, directly or indirectly, use any confidential\ninformation for any purpose outside the scope of EMPLOYEE'S employment with NIKE or disclose any confidential information to any person or organization\nwithout the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE shall not ever copy, transmit, reproduce, summarize, quote,\npublish or make any commercial or other use whatsoever of any confidential information without the prior written consent of NIKE. 6. RETURN OF\nCONFIDENTIAL INFORMATION. Upon termination and upon written request by NIKE at any time, EMPLOYEE shall return to NIKE all documents, records,\nnotebooks and other similar repositories of or containing confidential information, including all copies thereof, then in EMPLOYEE's possession, whether prepared\nby EMPLOYEE or others, and deliver to NIKE any and all other confidential information, in whatever form, that may be in EMPLOYEE'S possession or under\nEMPLOYEE'S control. 7. UNAUTHORIZED USE. During the period of employment with NIKE and thereafter, EMPLOYEE shall notify NIKE immediately of the\nunauthorized possession, use or knowledge of any confidential information by any person employed or not employed by NIKE at the time of such possession, use\nor knowledge. EMPLOYEE shall promptly furnish details of such possession, use or knowledge to NIKE, will assist in preventing the reoccurrence of such\npossession, use or knowledge, and shall cooperate with NIKE in any litigation against third parties deemed necessary by NIKE to protect the confidential\ninformation. EMPLOYEE's compliance with this paragraph shall not be construed in any way as a waiver of any of NIKE's rights or remedies against EMPLOYEE\narising out of or related to such unauthorized possession, use or knowledge. 8. INJ UNCTIVE RELIEF. The remedy at law for any breach of this Covenant Not\nto\nCompete and Non-Disclosure Agreement will be inadequate. It is reasonable to require that EMPLOYEE not compete with NIKE in order to protect NIKE from\nunfair use of the confidential information. NIKE shall be entitled to injunctive relief in addition to any other remedy it may have. A breach of this Covenant Not to\nCompete and Non-Disclosure Agreement during the period of EMPLOYEE'S employment with NIKE shall be considered a breach of the terms of that\nemployment and NIKE shall have the right to terminate EMPLOYEE'S employment in addition to any other rights or remedies NIKE may have. 9. WAIVER,\nAMENDMENT, MODIFICATION OR CANCELLATION. No waiver, amendment, modification or cancellation of any term or condition of this Covenant Not to\nCompete and Non-Disclosure Agreement shall be effective unless executed in writing by the party charged therewith. No written waiver shall excuse the\nperformance of any act other than the act or acts specifically referred to therein. 10. APPLICABLE LAW/J URISDICTIONNENUE. This Covenant Not to Compete\nand Non-Disclosure Agreement, and EMPLOYEE's employment hereunder, shall be construed according to the laws of the state of Oregon and EMPLOYEE\nhereby submits to the jurisdiction of the courts of the state of Oregon and waives application of any foreign law relating to this Agreement and EMPLOYEE'S\nemployment by NIKE. Any suit or action of any kind relating to this Agreement or the subject matter hereof shall be brought in a court located in Washington\nCounty, Oregon. EMPLOYEE NIKE, Inc. By: /s/ Thomas E. Clarke By: /s/ Philip H. Knight\nName: Thomas E. Clarke Name: hilip H. Knight	EX-10 .8 3 ex10_8.txt NON COMPETE AGREEMENT COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT PARTIES: Thomas E. Clarke\n(EMPLOYEE) NIKE, Inc. , a n Oregon corporation, and its divisions, subsidiaries and affiliates (NIKE) DATE: August 31, 1994 RECITALS: A. This Covenant Not to\nCompete is executed upon the EMPLOYEE's advancement to the position of President and nomination to the Board of Directors of NIKE. B . Over the course of\nEMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or in a position to generate confidential information including but not\nlimited to confidential techniques, methods, styles, designs and design concepts, developments, customer lists, vendor lists, contract factory lists, pricing\ninformation, manufacturing plans, business plans, marketing plans, sales information, methods of operation, knowledge and data relating to processes, products,\nmachines, compounds and compositions, formulae, lasts and molds. It is anticipated that EMPLOYEE will continue to be exposed to confidential information, will\nbe exposed to more confidential information and to confidential information of greater sensitivity as EMPLOYEE advances in the company. This confidential\ninformation is information peculiar to NIKE's business. The nature of NIKE's business is highly competitive and disclosure of any confidential information would\nresult in severe damage to NIKE and be difficult to measure. C . NIKE makes use of the confidential information described in paragraph B above throughout the\nworld. This confidential information of NIKE can be used to NIKE's detriment anywhere in the world. D . The provisions of this Covenant Not to Compete and\nNon-Disclosure Agreement are a condition of EMPLOYEE's employment advancement with NIKE. E . The provisions of this Covenant Not to Compete and\nNon-Disclosure Agreement are reasonable. AGREEMENTS: 1. COVENANT NOT TO COMPETE . During the period of time EMPLOYEE is employed by NIKE,\nunder the terms of any employment contract or otherwise, and for one (1) year thereafter, EMPLOYEE will not directly or indirectly, own, manage, operate, join,\ncontrol, or participate in the ownership, management, operation or control of, or be employed by or connected in any manner with, any business engaged\nanywhere in the world in the athletic footwear business, athletic apparel business, or any other business which directly competes with NIKE or any of its\nsubsidiaries or affiliated corporations. This provision is (a) subject to NIKE's option to waive all or any portion of the one (1) year time period of non-competition\nfollowing termination more specifically provided for in paragraph 2; and (b) subject to NIKE's option to specifically identify, at the time of termination, those\nbusinesses which EMPLOYEE may not be employed by or connected with for the period of non-competition. NIKE agrees to act in good faith in its exercise of the\nabove-noted options. 2 . ADDITIONAL CONSIDERATION . a. As additional consideration for the covenant not to compete described in paragraph 1 above, it is\nagreed that: (i) If EMPLOYEE voluntarily leaves the employ of NIKE, NIKE shall pay EMPLOYEE a monthly payment equal to one- half (1/2) of EMPLOYEE's last\nmonthly salary for the one (1) year period after termination of employment, payable on the first day of each month, or (ii) If EMPLOYEE is involuntarily terminated,\nNIKE shall pay EMPLOYEE a monthly payment equal to EMPLOYEE's last monthly salary for the one (1) year period after termination of employment, payable\non the first day of each month. b. NIKE has the option, for whatever reason, to elect to waive all or a portion of the one (1) year period of non- competition\nfollowing termination, by giving EMPLOYEE written notice of such election not less than 30 (thirty) days prior to the effective date of the waiver. In that event,\nNIKE shall not be obligated to pay EMPLOYEE under this paragraph for any months as to which the covenant not to compete has been waived. 3 . LESSER\nRESTRICTIONS. Should any of the terms of paragraphs 1 and 2 above be found unreasonable or invalid by any court of competent jurisdiction, the parties agree\nto accept as binding, in lieu thereof, the maximum terms enforceable by law. 4. EXTENSION OF TIME . The covenant not to compete described in paragraphs 1,\n2 and 3 above shall be extended by a time period equal to any time consumed in enforcement of the obligations hereunder during which EMPLOYEE engaged in\nactivities violating the covenant not to compete. 5 . NON-DISCLOSURE AGREEMENT. During the period of employment by NIKE and forever thereafter,\nEMPLOYEE will hold in confidence all information of a confidential nature, including but not limited to the information described in Recital "B", (all of which\ninformation of a confidential nature shall hereinafter be referred to as "confidential information") and will not, at any time, directly or indirectly, use any confidential\ninformation for any purpose outside the scope of EMPLOYEE's employment with NIKE or disclose any confidential information to any person or organization\nwithout the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE shall not ever copy, transmit, reproduce, summarize, quote,\npublish or make any commercial or other use whatsoever of any confidential information without the prior written consent of NIKE. 6. RETURN OF\nCONFIDENTIAL INFORMATION. Upon termination and upon written request by NIKE at any time, EMPLOYEE shall return to NIKE all documents, records,\nnotebooks and other similar repositories of or containing confidential information, including all copies thereof, then in EMPLOYEE's possession, whether prepared\nby EMPLOYEE or others, and deliver to NIKE any and all other confidential information, in whatever form, that may be in EMPLOYEE's possession or under\nEMPLOYEE's control. 7 . UNAUTHORIZED USE . During the period of employment with NIKE and thereafter, EMPLOYEE shall notify NIKE immediately of the\nunauthorized possession, use or knowledge of any confidential information by any person employed or not employed by NIKE at the time of such possession, use\nor knowledge. EMPLOYEE shall promptly furnish details of such possession, use or knowledge to NIKE, will assist in preventing the reoccurrence of such\npossession, use or knowledge, and shall cooperate with NIKE in any litigation against third parties deemed necessary by NIKE to protect the confidential\ninformation. EMPLOYEE's compliance with this paragraph shall not be construed in any way as a waiver of any of NIKE's rights or remedies against EMPLOYEE\narising out of or related to such unauthorized possession, use or knowledge. 8. INJUNCTIVE RELIEF. The remedy at law for any breach of this Covenant Not to\nCompete and Non-Disclosure Agreement will be inadequate. It is reasonable to require that EMPLOYEE not compete with NIKE in order to protect NIKE from\nunfair use of the confidential information. NIKE shall be entitled to injunctive relief in addition to any other remedy it may have. A breach of this Covenant Not to\nCompete and Non-Disclosure Agreement during the period of EMPLOYEE'S employment with NIKE shall be considered a breach of the terms of that\nemployment and NIKE shall have the right to terminate EMPLOYEE's employment in addition to any other rights or remedies NIKE may have. 9. WAIVER ,\nAMENDMENT, MODIFICATION OR CANCELLATION . No waiver, amendment, modification or cancellation of any term or condition of this Covenant Not to\nCompete and Non-Disclosure Agreement shall be effective unless executed in writing by the party charged therewith. No written waiver shall excuse the\nperformance of any act other than the act or acts specifically referred to therein. 10 . APPLICABLE LAW/JURISDICTION/VENUE. This Covenant Not to Compete\nand Non-Disclosure Agreement, and EMPLOYEE's employment hereunder, shall be construed according to the laws of the state of Oregon and EMPLOYEE\nhereby submits to the jurisdiction of the courts of the state of Oregon and waives application of any foreign law relating to this Agreement and EMPLOYEE's\nemployment by NIKE. Any suit or action of any kind relating to this Agreement or the subject matter hereof shall be brought in a court located in Washington\nCounty, Oregon. EMPLOYEE NIKE , Inc. By: /s/ Thomas E. Clarke By: /s/ Philip H. Knight __________________________ __________________________\nName: Thomas E. Clarke Name: Philip H. Knight
+cbecb022566bb11fff3a574ae1e15ddc.pdf	jurisdiction party	Exhibit A\nConfidentiality and Non-Competition Agreement\nWe are pleased that you have decided to continue to serve as an employee of Diamond Resorts\nInternational Marketing, Inc. (the “Company”). We are concurrently executing an Employment Agreement with you.\nAs a condition to our offering you the Employment Agreement and to ensure that you understand and agree with\nsome of our more important policies, we have described them in this Agreement. Please read this Agreement\ncarefully and then sign the last page if you understand and agree to it. This is a binding contract.\n1. Confidentiality. You acknowledge that, in the course of performing your responsibilities under this\nAgreement, you will form relationships and become acquainted with Confidential Information. As an\nemployee, you will have access to much of our confidential information. By way of example, our confidential\ninformation includes information about the Company’s business, independent contractor relationships,\ncontracts, client relationships, potential customers, existing customer names, phone numbers and\naddresses, Company manuals, sales techniques, registration cards, books, records, letters, forms,\ncustomer relationships, marketing information, business plans, financial data, bank information, forecasts,\nstrategies, and information about (or acquired from) our business partners. We agree that the existence and\nnegotiation of your employment agreement, and any non-public information exchanged in connection\ntherewith, is confidential. Please note that this is not an exhaustive list of our confidential information, and\nyou agree to consult with us in advance if there is any question regarding the confidential nature of any\ninformation. You agree to keep this information strictly confidential. You may not use or disclose any of it for\nany purpose other than as necessary for Company business. Furthermore, you agree that if you leave our\nemploy you will continue to treat that information as confidential, and will return all documents and\ncomputer discs and files containing that information to us.\n2. Inventions. We invest significant time and financial resources in the development of our business. In\nrecognition of this investment, you hereby irrevocably assign to us all interest in any inventions, discoveries,\ndevelopments, improvements and innovations, whether or not patentable (“Inventions”) which you help\ndevelop during your employment with us. If requested by us, you will execute specific assignments and\nother documents helpful or necessary to evidence our ownership of such inventions and assist us in\nobtaining or defending patents for such inventions. You will promptly disclose in writing to us any inventions\nyou help develop during your employment with us regardless of whether you believe such inventions will be\nthe property of the Company. We agree to treat such disclosures in confidence.\n3. Covenant Not to Compete. You agree that our Confidential Information is valuable to us, and the\nrestrictions on your future employment contained in this Agreement are reasonably necessary in order for\nus to remain competitive in our business. You agree that during the course of your employment with the\nCompany you have learned and will learn trade secrets and valuable confidential information of the\nCompany, have developed and will develop substantial business relationships with specific customers and\nprospective customers or clients of the Company and entities doing business with the Company, including\nhomeowners associations, and have developed and will develop goodwill on behalf of the Company in\nevery geographic area in which the Company owns or manages properties or has plans to do so. You have\nparticipated and will participate in specialized training on behalf of the Company. In consideration of our\nexecution of the Employment Agreement and the compensation payable to you under the Employment\nAgreement, and in recognition of our heightened need for protection from abuse of relationships formed or\nConfidential Information garnered, you covenant and agree that during the term of your employment\nagreement and for one (1) year after termination (excluding your termination without Cause as defined\ntherein), you will not directly or indirectly engage in the\nA-1\n___ ___ _\n___ ___ _\nExecutive\nCompany\nbusiness of the Company, which shall include without limitation, timesharing, club or affiliates that (i)\noperate a timeshare, interval, points membership or vacation membership resort or (ii) have a marketing or\nsales office that engages in the business of the Company.\nYou further agree that for a period of two (2) years following your separation from the Company, you shall\nnot directly or indirectly, whether for pay or otherwise, alone or with or on behalf of others, (a) solicit or contact for\nthe purpose of providing, or provide (regardless of whether you engaged in solicitations) business services of the\nsame type provided by the Company to any homeowners association with which you have conducted business or\nwith which you have sought to do business on behalf of the Company; (b) divert or attempt to divert any\nhomeowners association with which you have conducted business or attempted to conduct business on behalf of\nthe Company to enter into business relationships with any individuals or entities of the same or similar type as the\nrelationships with which they have conducted with the Company during your employment with the Company; (c)\nassist, encourage, or induce any homeowners association with which you have dealt on behalf of the Company\nduring your employment with the Company to terminate or reduce its business relationship with the Company; (d)\nsolicit or contact any members, prospective purchasers, guests and customers of the Company to reduce or\nterminate their relationship with the Company or to enter into relationships with individuals or entities performing or\noffering services in competition with the Company; (e) provide services to any prospective purchasers, guests and\ncustomers of the Company in competition with the Company; (f) solicit, recruit, or hire (whether as a consultant,\nemployee, or independent contractor) any individual who is or who was in the six (6) months preceding the\nsolicitation, recruitment, or hiring, a team member/employee of the Company; (g) assist other individuals or entities\nto do the acts set forth in this Section, In particular, you shall not perform business services for Starwood Property\nManagement or Vacation Resorts International during the Restricted Period. It shall not be a defense to a claim of\nbreach of this provision that any homeowners association, owner, prospective purchaser, or customer first\ncontacted you to seek your services. These restrictions shall apply in any jurisdiction and location in which the\nCompany currently conducts or has active plans to conduct business,\nFurther, following your separation, you agree that you shall not use or disclose any confidential information\nor trade secrets of the Company without written authorization of the Company or as required by law and shall not\nmake false or defamatory statements regarding the Company, its business, and its officers, directors and\nemployees. To the extent that you have any questions as to whether any of these restrictions apply to any specific\nemployment or business opportunity you wish to consider you shall contact the Chief Executive Officer in writing\nsetting forth the activities in which you wish to engage and seeking a determination of whether the Company views\nsuch proposed activities as being prohibited by this Agreement. You agree that these prohibitions do not prohibit\nyou from earning a living subject to the obligations contained in this Agreement.\n4. Agreements with Former Employers. You represent and warrant to the Company that:\n(a) The performance by you of the obligations under this Agreement will not breach any agreement\nto keep in confidence proprietary information acquired by you in confidence or in trust prior to\nyour employment by the Company, and during your employment by the Company you will not\nbreach any obligation of confidentiality that you may have to any former employer.\n(b) You have not brought and will not bring to the Company or use in the performance of your\nduties at the Company any materials or documents of a former employer that are not generally\navailable to the public or otherwise subject to a duty of confidentiality, unless you have\nobtained express written authorization from the former employer for their possession and use\nand delivered a copy of such authorization to the Company.\nA-2\n___ ___ _\n___ ___ _\nExecutive\nCompany\n5. No Recruiting of Employees, Customers or Business Partners. To meet the demands of our business,\nwe invest a lot of time and resources in hiring and training quality employees, and in finding and building\nrelationships with our customers and business partners. In recognition of our investment, you agree that\nwhile you are employed by us and for one (1) year after that:\n(a)You will not directly or indirectly induce or attempt to induce any person then engaged or employed\npart-time or full-time by the Company, whether as an officer, employee, consultant, adviser or\nindependent contractor, to leave the employ of the Company or to cease providing or otherwise\nalter the services then provided to the Company.\n(b)You will not directly or indirectly induce or attempt to induce any customer or business partner of\nthe Company to cease doing business with the Company.\n6. Duty to Inform Subsequent Employer. You agree that, if you are no longer employed by us, you will\ninform any subsequent employer (or client if you engage in consulting work) that you are a party to this\nAgreement and if requested will provide a copy of this Agreement to such subsequent employer or client.\n7. Records. Because of the need for confidentiality, we must maintain tight controls over our business\nrecords. Business records are those documents whose primary purpose is to record the actions of the\nCompany, including marketing and financial matters. Therefore, you agree not to remove any business\nrecords (whether in written or electronic form) from our premises without the prior written consent of our\nChief Executive Officer. Notwithstanding the foregoing, you may remove business records from Company\npremises to the extent necessary to carry out your responsibilities under the Employment Agreement. Such\ndocuments shall be returned to the premises immediately once they are no longer necessary. All\ndocuments must immediately be returned to the Company upon termination of employment.\n8. Company Property. You agree that if you leave our employ you will promptly return any Company\nproperty in your possession wherever it may be located. You also agree to cooperate with and follow the\ninstructions of the Company and to permit access to professionals retained by the Company for assistance\nin removing any digital copies of Company documents from the hard drives of computers or electronic data\ndigital storage devices that you use, including flash drives, external hard drives, Personal Data Assistants,\ncell phones, tablet computers, and other devices. If you do not promptly return such property, we may\nexercise all of our legal remedies to recover such property, and you agree to reimburse us for all expenses\n(including attorneys’ fees and court costs) incurred in connection with the attempt to recover such property.\n9. Communication with the Public. Under all circumstances, communications with anyone from the media\nshould be strictly limited (other than to say that a call will be referred to the appropriate person within the\nCompany). Only persons authorized by the Chief Executive Officer of the Company shall be entitled to\nspeak with the press on any subject.\n10. Injunctive Relief of Breaches. I understand that any failure by me to perform my duties, obligations\nand agreements in this document could result in irreparable injury to the Company. We both agree that\ndamages would be an inadequate remedy for the Company in the event of breach or threatened breach of\nthis Agreement. Accordingly, you agree in advance that in addition to the remedies otherwise available to\nthe Company at law, the Company is entitled to receive restraining orders and/or injunctive relief without\nbond from courts of competent jurisdiction to enforce any of those duties, obligations or agreements.\nA-3\n___ ___ _\n___ ___ _\nExecutive\nCompany\n11. Arbitration. All disputes in connection with or arising out of this Agreement shall be subject to the\narbitration provisions attached hereto as Exhibit B, which exhibit is incorporated herein by this reference.\nThe only exception is that either you or we may seek injunctive relieve from any court having jurisdiction.\nBoth parties consent to exclusive jurisdiction in Clark County, Nevada.\n12. Severability. If any portion of this Agreement is invalid or unenforceable, or if this Agreement is invalid\nor unenforceable in any particular circumstance, that fact shall not affect the validity or enforceability of any\nother provision of this Agreement or its application in any other circumstance.\n13.\nGoverning Law. Our respective rights and liabilities under this Agreement shall be governed by the\nlaws of the State of Nevada, regardless of the choice of law provisions of Nevada or any other jurisdiction.\nDiamond\nResorts International Marketing, Inc.\nDate:\n___ ___ ___ ___ ____ ___ ___ ___ _\n__ ___ ___ ____ ___ ___ ___ ___ ___\n_\nBy:\nIts:\nI HAVE CAREFULLY READ AND CONSIDERED THE TERMS OF THIS AGREEMENT. I HAVE ASKED ANY\nQUESTIONS ABOUT THEM WHICH I MIGHT HAVE HAD AND UNDERSTAND THEIR IMPLICATIONS. I ALSO\nUNDERSTAND THAT ANY CHANGES IN THIS AGREEMENT MUST BE IN WRITING AND SIGNED BY THE\nCOMPANY’S CHIEF EXECUTIVE OFFICER.\nDate:\n___ ___ ___ ___ ____ ___ ___ ___ _\n__ ___ ___ ____ ___ ___ ___ ___ ___\n_\nMichael Flaskey\nDO NOT SIGN THIS AGREEMENT UNLESS YOU UNDERSTAND AND AGREE\nTO ALL OF ITS TERMS. THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE.	ExhibitA\nConfidentiality and Non-Competition Agreement\nWe are pleased that you have decided to continue to serve as an employee of Diamond Resorts\nInternational Marketing, Inc. (the “Company”). We are concurrently executing an Employment Agreement with you.\nAs a condition to our offering you the Employment Agreement and to ensure that you understand and agree with\nsome of our more important policies, we have described them in this Agreement. Please read this Agreement\ncarefully and then sign the last page if you understand and agree to it. This is a binding contract.\n1. Confidentiality. You acknowledge that, in the course of performing your responsibilities under this\nAgreement, you will form relationships and become acquainted with Confidential Information. As an\nemployee, you will have access to much ofour confidential information. By way ofexample, our confidential\ninformation includes information about the Company's business, independent contractor relationships,\ncontracts, client relationships, potential customers, existing customer names, phone numbers and\naddresses, Company manuals, sales techniques, registration cards, books, records, letters, forms,\ncustomer relationships, marketing information, business plans, financial data, bank information, forecasts,\nstrategies, and information about (or acquired from) our business partners. We agree thatthe existence and\nnegotiation of your employment agreement, and any non-public information exchanged in connection\ntherewith, is confidential. Please note that this is not an exhaustive list of our confidential information, and\nyou agree to consult with us in advance if there is any question regarding the confidential nature of any\ninformation. You agree to keep this information strictly confidential. You may not use or disclose any of it for\nany purpose other than as necessary for Company business. Furthermore, you agree that if you leave our\nemploy you will continue to treat that information as confidential, and will return all documents and\ncomputer discs and files containing that information to us.\n2. Inventions. We invest significant time and financial resources in the development of our business. In\nrecognition of this investment, you hereby irrevocably assign to us all interest in any inventions, discoveries,\ndevelopments, improvements and innovations, whether or not patentable (“Inventions”) which you help\ndevelop during your employment with us. If requested by us, you will execute specific assignments and\nother documents helpful or necessary to evidence our ownership of such inventions and assist us in\nobtaining or defending patents for such inventions. You will promptly disclose in writing to us any inventions\nyou help develop during your employment with us regardless of whether you believe such inventions will be\nthe property ofthe Company. We agree to treat such disclosures in confidence.\n3. Covenant Not to Compete. You agree that our Confidential Information is valuable to us, and the\nrestrictions on your future employment contained in this Agreement are reasonably necessary in order for\nus to remain competitive in our business. You agree that during the course of your employment with the\nCompany you have learned and will learn trade secrets and valuable confidential information of the\nCompany, have developed and will develop substantial business relationships with specific customers and\nprospective customers or clients of the Company and entities doing business with the Company, including\nhomeowners associations, and have developed and will develop goodwill on behalf of the Company in\nevery geographic area in which the Company owns or manages properties or has plans to do so. You have\nparticipated and will participate in specialized training on behalf of the Company. In consideration of our\nexecution of the Employment Agreement and the compensation payable to you under the Employment\nAgreement, and in recognition of our heightened need for protection from abuse of relationships formed or\nConfidential Information garnered, you covenant and agree that during the term of your employment\nagreement and for one (1) year after termination (excluding your termination without Cause as defined\ntherein), you will not directly or indirectly engage in the\nA-l\nExecutive Company\nbusiness of the Company, which shall include without limitation, timesharing, club or affiliates that (i)\noperate a timeshare, interval, points membership or vacation membership resort or (ii) have a marketing or\nsales office thatengages in the business of the Company.\nYou further agree that for a period of two (2) years following your separation from the Company, you shall\nnot directly or indirectly, whether for pay or otherwise, alone or with or on behalf of others, (a) solicit or contact for\nthe purpose of providing, or provide (regardless of whether you engaged in solicitations) business services of the\nsame type provided by the Company to any homeowners association with which you have conducted business or\nwith which you have sought to do business on behalf of the Company; (b) divert or attempt to divert any\nhomeowners association with which you have conducted business or attempted to conduct business on behalf of\nthe Company to enter into business relationships with any individuals or entities of the same or similar type as the\nrelationships with which they have conducted with the Company during your employment with the Company; (c)\nassist, encourage, or induce any homeowners association with which you have dealt on behalf of the Company\nduring your employment with the Company to terminate or reduce its business relationship with the Company; (d)\nsolicit or contact any members, prospective purchasers, guests and customers of the Company to reduce or\nterminate their relationship with the Company or to enter into relationships with individuals or entities performing or\noffering services in competition with the Company; (e) provide services to any prospective purchasers, guests and\ncustomers of the Company in competition with the Company; (f) solicit, recruit, or hire (whether as a consultant,\nemployee, or independent contractor) any individual who is or who was in the six (6) months preceding the\nsolicitation, recruitment, or hiring, a team member/employee of the Company; (g) assist other individuals or entities\nto do the acts set forth in this Section, In particular, you shall not perform business services for Starwood Property\nManagement or Vacation Resorts International during the Restricted Period. It shall not be a defense to a claim of\nbreach of this provision that any homeowners association, owner, prospective purchaser, or customer first\ncontacted you to seek your services. These restrictions shall apply in any jurisdiction and location in which the\nCompany currently conducts or has active plans to conduct business,\nFurther, following your separation, you agree that you shall not use or disclose any confidential information\nor trade secrets of the Company without written authorization of the Company or as required by law and shall not\nmake false or defamatory statements regarding the Company, its business, and its officers, directors and\nemployees. To the extent that you have any questions as to whether any of these restrictions apply to any specific\nemployment or business opportunity you wish to consider you shall contact the Chief Executive Officer in writing\nsetting forth the activities in which you wish to engage and seeking a determination of whether the Company views\nsuch proposed activities as being prohibited by this Agreement. You agree that these prohibitions do not prohibit\nyou from earning a living subject to the obligations contained in this Agreement.\n4. Agreements with Former Employers. You representand warrant to the Company that:\n(a) The performance by you of the obligations under this Agreement will not breach any agreement\nto keep in confidence proprietary information acquired by you in confidence or in trust prior to\nyour employment by the Company, and during your employment by the Company you will not\nbreach any obligation of confidentiality that you may have to any former employer.\n(b) You have not brought and will not bring to the Company or use in the performance of your\nduties atthe Company any materials or documents of a former employer that are not generally\navailable to the public or othenNise subject to a duty of confidentiality, unless you have\nobtained express written authorization from the former employer for their possession and use\nand delivered a copy ofsuch authorization to the Company.\nA-2\nExecutive Company\n5. No Recruiting of Employees, Customers or Business Partners. To meet the demands of our business,\nwe invest a lot of time and resources in hiring and training quality employees, and in finding and building\nrelationships with our customers and business partners. In recognition of our investment, you agree that\nwhile you are employed by us and for one (1) year afterthat:\n(3()ou will notdirectly or indirectly induce or attempt to induce any person then engaged or employed\npart-time or full-time by the Company, whether as an officer, employee, consultant, adviser or\nindependent contractor, to leave the employ of the Company or to cease providing or othenNise\nalter the services then provided to the Company.\n(M)ou will not directly or indirectly induce or attempt to induce any customer or business partner of\nthe Company to cease doing business with the Company.\n6. Dug to Inform Subseguent Employer. You agree that, if you are no longer employed by us, you will\ninform any subsequent employer (or client if you engage in consulting work) that you are a party to this\nAgreementand if requested will provide a copy ofthis Agreement to such subsequentemployer or client.\n7. Records. Because of the need for confidentiality, we must maintain tight controls over our business\nrecords. Business records are those documents whose primary purpose is to record the actions of the\nCompany, including marketing and financial matters. Therefore, you agree not to remove any business\nrecords (whether in written or electronic form) from our premises without the prior written consent of our\nChief Executive Officer. Notwithstanding the foregoing, you may remove business records from Company\npremises to the extent necessary to carry outyour responsibilities under the EmploymentAgreement. Such\ndocuments shall be returned to the premises immediately once they are no longer necessary. All\ndocuments must immediately be returned to the Company upon termination of employment.\n8. Company Property. You agree that if you leave our employ you will promptly return any Company\nproperty in your possession wherever it may be located. You also agree to cooperate with and follow the\ninstructions of the Company and to permit access to professionals retained by the Company for assistance\nin removing any digital copies ofCompany documents from the hard drives of computers or electronic data\ndigital storage devices that you use, including flash drives, external hard drives, Personal Data Assistants,\ncell phones, tablet computers, and other devices. If you do not promptly return such property, we may\nexercise all of our legal remedies to recover such property, and you agree to reimburse us for all expenses\n(including attorneys' fees and courtcosts) incurred in connection with the attempt to recover such property.\n9. Communication with the Public. Under all circumstances, communications with anyone from the media\nshould be strictly limited (other than to say that a call will be referred to the appropriate person within the\nCompany). Only persons authorized by the Chief Executive Officer of the Company shall be entitled to\nspeak with the press on any subject.\n10. Iniunctive Relief of Breaches. I understand that any failure by me to perform my duties, obligations\nand agreements in this document could result in irreparable injury to the Company. We both agree that\ndamages would be an inadequate remedy for the Company in the event of breach or threatened breach of\nthis Agreement. Accordingly, you agree in advance that in addition to the remedies othenNise available to\nthe Company at law, the Company is entitled to receive restraining orders and/or injunctive relief without\nbond from courts ofcompetentjurisdiction to enforce any ofthose duties, obligations or agreements.\nA-3\nExecutive Company\nll. Arbitration. All disputes in connection with or arising out of this Agreement shall be subject to the\narbitration provisions attached hereto as Exhibit B, which exhibit is incorporated herein by this reference.\nThe only exception is that either you or we may seek injunctive relieve from any court having jurisdiction.\nBoth parties consent to exclusive jurisdiction in Clark County, Nevada.\n12. Severabiliy. Ifany portion of this Agreement is invalid or unenforceable, or if this Agreement is invalid\nor unenforceable in any particular circumstance, that fact shall not affect the validity or enforceability of any\nother provision of this Agreement or its application in any other circumstance.\nl3. Governing Law. Our respective rights and liabilities under this Agreement shall be governed by the\nlaws ofthe State of Nevada, regardless of the choice of law provisions of Nevada or any otherjurisdiction.\nResorts International Marketing, Inc.\nI HAVE CAREFULLY READ AND CONSIDERED THE TERMS OF THIS AGREEMENT. I HAVE ASKED ANY\nQUESTIONS ABOUT THEM WHICH I MIGHT HAVE HAD AND UNDERSTAND THEIR IMPLICATIONS. I ALSO\nUNDERSTAND THAT ANY CHANGES IN THIS AGREEMENT MUST BE IN WRITING AND SIGNED BY THE\nCOMPANY'S CHIEF EXECUTIVE OFFICER.\nMichael Flaskey\nDO NOT SIGN THIS AGREEMENT UNLESS YOU UNDERSTAND AND AGREE\nTO ALL OF ITS TERMS. THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE.	Exhibit A\nConfidentiality and Non-Competition Agreement\nWe are pleased that you have decided to continue to serve as an employee of Diamond Resorts\nInternational Marketing, Inc. (the "Company"). We are concurrently executing an Employment Agreement with you.\nAs a condition to our offering you the Employment Agreement and to ensure that you understand and agree with\nsome of our more important policies, we have described them in this Agreement. Please read this Agreement\ncarefully and then sign the last page if you understand and agree to it. This is a binding contract.\n1.\nConfidentiality. You acknowledge that, in the course of performing your responsibilities under this\nAgreement, you wil form relationships and become acquainted with Confidential Information. As an\nemployee, you will have access to much of our confidentia information. By way of example, our confidential\ninformation includes information about the Company's business, independent contractor relationships,\ncontracts, client relationships, potential customers, existing customer names, phone numbers and\naddresses,\nCompany\nmanuals,\nsales\ntechniques,\nregistration\ncards,\nbooks,\nrecords,\nletters,\nforms,\ncustomer relationships, marketing information, business plans, financial data, bank information, forecasts,\nstrategies, and information about (or acquired from) our business partners. We agree that the existence and\nnegotiation of your employment agreement, and any non-public information exchanged in connection\ntherewith, is confidential. Please note that this is not an exhaustive list of our confidentia information, and\nyou agree to consult with us in advance if there is any question regarding the confidential nature of any\ninformation. You agree to keep this information strictly confidential. You may not use or disclose any of it for\nany purpose other than as necessary for Company business. Furthermore, you agree that if you leave our\nemploy you wil continue to treat that information as confidential, and will return all documents and\ncomputer discs and files containing that information to us.\n2.\nInventions. We invest significant time and financial resources in the development of our business. In\nrecognition of this investment, you hereby irrevocably assign to us all interest in any inventions, discoveries,\ndevelopments, improvements and innovations, whether or not patentable ("Inventions") which you help\ndevelop\nduring\nyour\nemployment\nwith\nus.\nIf\nrequested\nby\nus,\nyou\nwill\nexecute\nspecific\nassignments\nand\nother documents helpful or necessary to evidence our ownership of such inventions and assist us in\nobtaining or defending patents for such inventions. You will promptly disclose in writing to us any inventions\nyou help develop during your employment with us regardless of whether you believe such inventions will be\nthe property of the Company. We agree to treat such disclosures in confidence.\n3. Covenant Not to Compete. You agree that our Confidential Information is valuable to us, and the\nrestrictions on your future employment contained in this Agreement are reasonably necessary in order for\nus to remain competitive in our business. You agree that during the course of your employment with the\nCompany you have learned and will learn trade secrets and valuable confidential information of the\nCompany, have developed and will develop substantia business relationships with specific customers and\nprospective customers or clients of the Company and entities doing business with the Company, including\nhomeowners associations, and have developed and will develop goodwill on behalf of the Company in\nevery geographic area in which the Company owns or manages properties or has plans to do so. You have\nparticipated\nand\nwill\nparticipate\nin\nspecialized\ntraining\non\nbehalf\nof\nthe\nCompany.\nIn\nconsideration\nof\nour\nexecution of the Employment Agreement and the compensation payable to you under the mployment\nAgreement, and in recognition of our heightened need for protection from abuse of relationships formed or\nConfidential Information garnered, you covenant and agree that during the term of your employment\nagreement and for one (1) year after termination (excluding your termination without Cause as defined\ntherein), you will not directly or indirectly engage in the\nA-1\nExecutive\nCompany\nbusiness of the Company, which shall include without limitation, timesharing, club or affiliates that (i)\noperate a timeshare, interval, points membership or vacation membership resort or (ii) have a marketing or\nsales office that engages in the business of the Company.\nYou further agree that for a period of two (2) years following your separation from the Company, you shall\nnot directly or indirectly, whether for pay or otherwise, alone or with or on behalf of others, (a) solicit or contact for\nthe\npurpose\nof\nproviding,\nor\nprovide\n(regardless\nof\nwhether\nyou\nengaged\nin\nsolicitations)\nbusiness\nservices\nof\nthe\nsame type provided by the Company to any homeowners association with which you have conducted business or\nwith which you have sought to do business on behalf of the Company; (b) divert or attempt to divert any\nhomeowners association with which you have conducted business or attempted to conduct business on behalf of\nthe Company to enter into business relationships with any individuals or entities of the same or similar type as the\nrelationships with which they have conducted with the Company during your employment with the Company; (c)\nassist, encourage, or induce any homeowners association with which you have dealt on behalf of the Company\nduring your employment with the Company to terminate or reduce its business relationship with the Company; (d)\nsolicit or contact any members, prospective purchasers, guests and customers of the Company to reduce or\nterminate their relationship with the Company or to enter into relationships with individuals or entities performing or\noffering services in competition with the Company; (e) provide services to any prospective purchasers, guests and\ncustomers of the Company in competition with the Company; (f) solicit, recruit, or hire (whether as a consultant,\nemployee, or independent contractor) any individual who is or who was in the six (6) months preceding the\nsolicitation, recruitment, or hiring, a team member/employee of the Company; (g) assist other individuals or entities\nto\ndo\nthe\nacts\nset\nforth\nin\nthis\nSection,\nIn\nparticular,\nyou\nshall\nnot\nperform\nbusiness\nservices\nfor\nStarwood\nProperty\nManagement or Vacation Resorts International during the Restricted Period. It shall not be a defense to a claim of\nbreach of this provision that any homeowners association, owner, prospective purchaser, or customer first\ncontacted you to seek your services. These restrictions shall apply in any jurisdiction and location in which the\nCompany currently conducts or has active plans to conduct business,\nFurther, following your separation, you agree that you shall not use or disclose any confidential information\nor trade secrets of the Company without written authorization of the Company or as required by law and shall not\nmake false or defamatory statements regarding the Company, its business, and its officers, directors and\nemployees. To the extent that you have any questions as to whether any of these restrictions apply to any specific\nemployment or business opportunity you wish to consider you shall contact the Chief Executive Officer in writing\nsetting\nforth\nthe\nactivities\nin\nwhich\nyou\nwish\nto\nengage\nand\nseeking\na\ndetermination\nof\nwhether\nthe\nCompany\nviews\nsuch proposed activities as being prohibited by this Agreement. You agree that these prohibitions do not prohibit\nyou from earning a living subject to the obligations contained in this Agreement.\n4. Agreements with Former Employers. You represent and warrant to the Company that:\n(a) The performance by you of the obligations under this Agreement will not breach any agreement\nto keep in confidence proprietary information acquired by you in confidence or in trust prior to\nyour employment by the Company, and during your employment by the Company you will not\nbreach any obligation of confidentiality that you may have to any former employer.\n(b) You have not brought and will not bring to the Company or use in the performance of your\nduties at the Company any materials or documents of a former employer that are not generally\navailable to the public or otherwise subject to a duty of confidentiality, unless you have\nobtained express written authorization from the former employer for their possession and use\nand delivered a copy of such authorization to the Company.\nA-2\nExecutive Company\n5.\nNo Recruiting of mployees, Customers or Business Partners. To meet the demands of our business,\nwe invest a lot of time and resources in hiring and training quality employees, and in finding and building\nrelationships with our customers and business partners. In recognition of our investment, you agree that\nwhile you are employed by us and for one (1) year after that:\n(d)u will not directly or indirectly induce or attempt to induce any person then engaged or employed\npart-time or full-time by the Company, whether as an officer, employee, consultant, adviser or\nindependent contractor, to leave the employ of the Company or to cease providing or otherwise\nalter the services then provided to the Company.\n(b)u will not directly or indirectly induce or attempt to induce any customer or business partner of\nthe Company to cease doing business with the Company.\n6. Duty to Inform Subsequent Employer. You agree that, if you are no longer employed by us, you will\ninform any subsequent employer (or client if you engage in consulting work) that you are a party to this\nAgreement and if requested will provide a copy of this Agreement to such subsequent employer or client.\n7.\nRecords. Because of the need for confidentiality, we must maintain tight controls over our business\nrecords. Business records are those documents whose primary purpose is to record the actions of the\nCompany,\nincluding\nmarketing\nand\nfinancial\nmatters.\nTherefore,\nyou\nagree\nnot\nto\nremove\nany\nbusiness\nrecords (whether in written or electronic form) from our premises without the prior written consent of our\nChief Executive Officer. Notwithstanding the foregoing, you may remove business records from Company\npremises to the extent necessary to carry out your responsibilities under the Employment Agreement. Such\ndocuments shall be returned to the premises immediately once they are no longer necessary. All\ndocuments must immediately be returned to the Company upon termination of employment.\n8.\nCompany Property. You agree that if you leave our employ you will promptly return any Company\nproperty in your possession wherever it may be located. You also agree to cooperate with and follow the\ninstructions of the Company and to permit access to professionals retained by the Company for assistance\nin removing any digital copies of Company documents from the hard drives of computers or electronic data\ndigital storage devices that you use, including flash drives, externa hard drives, Personal Data Assistants,\ncell phones, tablet computers, and other devices. If you do not promptly return such property, we may\nexercise all of our legal remedies to recover such property, and you agree to reimburse us for all expenses\n(including attorneys' fees and court costs) incurred in connection with the attempt to recover such property.\n9.\nCommunication with the Public. Under all circumstances, communications with anyone from the media\nshould be strictly limited (other than to say that a call will be referred to the appropriate person within the\nCompany). Only persons authorized by the Chief Executive Officer of the Company shall be entitled to\nspeak with the press on any subject.\n10. Injunctive Relief of Breaches. I understand that any failure by me to perform my duties, obligations\nand agreements in this document could result in irreparable injury to the Company. We both agree that\ndamages would be an inadequate remedy for the Company in the event of breach or threatened breach of\nthis Agreement Accordingly, you agree in advance that in addition to the remedies otherwise available to\nthe Company at law, the Company is entitled to receive restraining orders and/or injunctive relief without\nbond from courts of competent jurisdiction to enforce any of those duties, obligations or agreements.\nA-3\nExecutive\nCompany\n11. Arbitration. All disputes in connection with or arising out of this Agreement shall be subject to the\narbitration provisions attached hereto as Exhibit B, which exhibit is incorporated herein by this reference.\nThe only exception is that either you or we may seek injunctive relieve from any court having jurisdiction.\nBoth parties consent to exclusive jurisdiction in Clark County, Nevada.\n12. Severability. If any portion of this Agreement is invalid or unenforceable, or if this Agreement is invalid\nor unenforceable in any particular circumstance, that fact shall not affect the validity or enforceability of any\nother provision of this Agreement or its application in any other circumstance.\n13.\nGoverning Law. Our respective rights and liabilities under this Agreement shall be governed by the\nlaws of the State of Nevada, regardless of the choice of law provisions of Nevada or any other jurisdiction.\nResorts International Marketing, Inc.\nDate:\nBy:\nIts:\nI HAVE CAREFULLY READ AND CONSIDERED THE TERMS OF THIS AGREEMENT. I HAVE ASKED ANY\nQUESTIONS ABOUT THEM WHICH I MIGHT HAVE HAD AND UNDERSTAND THEIR IMPLICATIONS. I ALSO\nUNDERSTAND THAT ANY CHANGES IN THIS AGREEMENT MUST BE IN WRITING AND SIGNED BY THE\nCOMPANY'S CHIEF EXECUTIVE OFFICER.\nDate:\nMichael Flaskey\nDO NOT SIGN THIS AGREEMENT UNLESS YOU UNDERSTAND AND AGREE\nTO ALL OF ITS TERMS. THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE.	Exhibit A\nConfidentiality and Non-Competition Agreement\nWe are pleased that you have decided to continue to serve as an employee of Diamond Resorts\nInternational Marketing, Inc. (the “Company”). We are concurrently executing an Employment Agreement with you.\nAs a condition to our offering you the Employment Agreement and to ensure that you understand and agree with\nsome of our more important policies, we have described them in this Agreement. Please read this Agreement\ncarefully and then sign the last page if you understand and agree to it. This is a binding contract.\n1. Confidentiality. You acknowledge that, in the course of performing your responsibilities under this\nAgreement, you will form relationships and become acquainted with Confidential Information. As an\nemployee, you will have access to much of our confidential information. By way of example, our confidential\ninformation includes information about the Company’s business, independent contractor relationships,\ncontracts, client relationships, potential customers, existing customer names, phone numbers and\naddresses, Company manuals, sales techniques, registration cards, books, records, letters, forms,\ncustomer relationships, marketing information, business plans, financial data, bank information, forecasts,\nstrategies, and information about (or acquired from) our business partners. We agree that the existence and\nnegotiation of your employment agreement, and any non-public information exchanged in connection\ntherewith, is confidential. Please note that this is not an exhaustive list of our confidential information, and\nyou agree to consult with us in advance if there is any question regarding the confidential nature of any\ninformation. You agree to keep this information strictly confidential. You may not use or disclose any of it for\nany purpose other than as necessary for Company business. Furthermore, you agree that if you leave our\nemploy you will continue to treat that information as confidential, and will return all documents and\ncomputer discs and files containing that information to us.\n2. Inventions. We invest significant time and financial resources in the development of our business. In\nrecognition of this investment, you hereby irrevocably assign to us all interest in any inventions, discoveries,\ndevelopments, improvements and innovations, whether or not patentable (“Inventions”) which you help\ndevelop during your employment with us. If requested by us, you will execute specific assignments and\nother documents helpful or necessary to evidence our ownership of such inventions and assist us in\nobtaining or defending patents for such inventions. You will promptly disclose in writing to us any inventions\nyou help develop during your employment with us regardless of whether you believe such inventions will be\nthe property of the Company. We agree to treat such disclosures in confidence.\n3. Covenant Not to Compete. You agree that our Confidential Information is valuable to us, and the\nrestrictions on your future employment contained in this Agreement are reasonably necessary in order for\nus to remain competitive in our business. You agree that during the course of your employment with the\nCompany you have learned and will learn trade secrets and valuable confidential information of the\nCompany, have developed and will develop substantial business relationships with specific customers and\nprospective customers or clients of the Company and entities doing business with the Company, including\nhomeowners associations, and have developed and will develop goodwill on behalf of the Company in\nevery geographic area in which the Company owns or manages properties or has plans to do so. You have\nparticipated and will participate in specialized training on behalf of the Company. In consideration of our\nexecution of the Employment Agreement and the compensation payable to you under the Employment\nAgreement, and in recognition of our heightened need for protection from abuse of relationships formed or\nConfidential Information garnered, you covenant and agree that during the term of your employment\nagreement and for one (1) year after termination (excluding your termination without Cause as defined\ntherein), you will not directly or indirectly engage in the\nA-1\n___ ___ _\n___ ___ _\nExecutive\nCompany\nbusiness of the Company, which shall include without limitation, timesharing, club or affiliates that (i)\noperate a timeshare, interval, points membership or vacation membership resort or (ii) have a marketing or\nsales office that engages in the business of the Company.\nYou further agree that for a period of two (2) years following your separation from the Company, you shall\nnot directly or indirectly, whether for pay or otherwise, alone or with or on behalf of others, (a) solicit or contact for\nthe purpose of providing, or provide (regardless of whether you engaged in solicitations) business services of the\nsame type provided by the Company to any homeowners association with which you have conducted business or\nwith which you have sought to do business on behalf of the Company; (b) divert or attempt to divert any\nhomeowners association with which you have conducted business or attempted to conduct business on behalf of\nthe Company to enter into business relationships with any individuals or entities of the same or similar type as the\nrelationships with which they have conducted with the Company during your employment with the Company; (c)\nassist, encourage, or induce any homeowners association with which you have dealt on behalf of the Company\nduring your employment with the Company to terminate or reduce its business relationship with the Company; (d)\nsolicit or contact any members, prospective purchasers, guests and customers of the Company to reduce or\nterminate their relationship with the Company or to enter into relationships with individuals or entities performing or\noffering services in competition with the Company; (e) provide services to any prospective purchasers, guests and\ncustomers of the Company in competition with the Company; (f) solicit, recruit, or hire (whether as a consultant,\nemployee, or independent contractor) any individual who is or who was in the six (6) months preceding the\nsolicitation, recruitment, or hiring, a team member/employee of the Company; (g) assist other individuals or entities\nto do the acts set forth in this Section, In particular, you shall not perform business services for Starwood Property\nManagement or Vacation Resorts International during the Restricted Period. It shall not be a defense to a claim of\nbreach of this provision that any homeowners association, owner, prospective purchaser, or customer first\ncontacted you to seek your services. These restrictions shall apply in any jurisdiction and location in which the\nCompany currently conducts or has active plans to conduct business,\nFurther, following your separation, you agree that you shall not use or disclose any confidential information\nor trade secrets of the Company without written authorization of the Company or as required by law and shall not\nmake false or defamatory statements regarding the Company, its business, and its officers, directors and\nemployees. To the extent that you have any questions as to whether any of these restrictions apply to any specific\nemployment or business opportunity you wish to consider you shall contact the Chief Executive Officer in writing\nsetting forth the activities in which you wish to engage and seeking a determination of whether the Company views\nsuch proposed activities as being prohibited by this Agreement. You agree that these prohibitions do not prohibit\nyou from earning a living subject to the obligations contained in this Agreement.\n4. Agreements with Former Employers. You represent and warrant to the Company that:\n(a) The performance by you of the obligations under this Agreement will not breach any agreement\nto keep in confidence proprietary information acquired by you in confidence or in trust prior to\nyour employment by the Company, and during your employment by the Company you will not\nbreach any obligation of confidentiality that you may have to any former employer.\n(b) You have not brought and will not bring to the Company or use in the performance of your\nduties at the Company any materials or documents of a former employer that are not generally\navailable to the public or otherwise subject to a duty of confidentiality, unless you have\nobtained express written authorization from the former employer for their possession and use\nand delivered a copy of such authorization to the Company.\nA-2\n___ ___ _\n___ ___ _\nExecutive\nCompany\n5. No Recruiting of Employees, Customers or Business Partners. To meet the demands of our business,\nwe invest a lot of time and resources in hiring and training quality employees, and in finding and building\nrelationships with our customers and business partners. In recognition of our investment, you agree that\nwhile you are employed by us and for one (1) year after that:\n(a)You will not directly or indirectly induce or attempt to induce any person then engaged or employed\npart-time or full-time by the Company, whether as an officer, employee, consultant, adviser or\nindependent contractor, to leave the employ of the Company or to cease providing or otherwise\nalter the services then provided to the Company.\n(b)You will not directly or indirectly induce or attempt to induce any customer or business partner of\nthe Company to cease doing business with the Company.\n6. Duty to Inform Subsequent Employer. You agree that, if you are no longer employed by us, you will\ninform any subsequent employer (or client if you engage in consulting work) that you are a party to this\nAgreement and if requested will provide a copy of this Agreement to such subsequent employer or client.\n7. Records. Because of the need for confidentiality, we must maintain tight controls over our business\nrecords. Business records are those documents whose primary purpose is to record the actions of the\nCompany, including marketing and financial matters. Therefore, you agree not to remove any business\nrecords (whether in written or electronic form) from our premises without the prior written consent of our\nChief Executive Officer. Notwithstanding the foregoing, you may remove business records from Company\npremises to the extent necessary to carry out your responsibilities under the Employment Agreement. Such\ndocuments shall be returned to the premises immediately once they are no longer necessary. All\ndocuments must immediately be returned to the Company upon termination of employment.\n8. Company Property. You agree that if you leave our employ you will promptly return any Company\nproperty in your possession wherever it may be located. You also agree to cooperate with and follow the\ninstructions of the Company and to permit access to professionals retained by the Company for assistance\nin removing any digital copies of Company documents from the hard drives of computers or electronic data\ndigital storage devices that you use, including flash drives, external hard drives, Personal Data Assistants,\ncell phones, tablet computers, and other devices. If you do not promptly return such property, we may\nexercise all of our legal remedies to recover such property, and you agree to reimburse us for all expenses\n(including attorneys’ fees and court costs) incurred in connection with the attempt to recover such property.\n9. Communication with the Public. Under all circumstances, communications with anyone from the media\nshould be strictly limited (other than to say that a call will be referred to the appropriate person within the\nCompany). Only persons authorized by the Chief Executive Officer of the Company shall be entitled to\nspeak with the press on any subject.\n10. Injunctive Relief of Breaches. I understand that any failure by me to perform my duties, obligations\nand agreements in this document could result in irreparable injury to the Company. We both agree that\ndamages would be an inadequate remedy for the Company in the event of breach or threatened breach of\nthis Agreement. Accordingly, you agree in advance that in addition to the remedies otherwise available to\nthe Company at law, the Company is entitled to receive restraining orders and/or injunctive relief without\nbond from courts of competent jurisdiction to enforce any of those duties, obligations or agreements.\nA-3\n___ ___ _\n___ ___ _\nExecutive\nCompany\n11. Arbitration. All disputes in connection with or arising out of this Agreement shall be subject to the\narbitration provisions attached hereto as Exhibit B, which exhibit is incorporated herein by this reference.\nThe only exception is that either you or we may seek injunctive relieve from any court having jurisdiction.\nBoth parties consent to exclusive jurisdiction in Clark County, Nevada.\n12. Severability. If any portion of this Agreement is invalid or unenforceable, or if this Agreement is invalid\nor unenforceable in any particular circumstance, that fact shall not affect the validity or enforceability of any\nother provision of this Agreement or its application in any other circumstance.\n13.\nGoverning Law. Our respective rights and liabilities under this Agreement shall be governed by the\nlaws of the State of Nevada, regardless of the choice of law provisions of Nevada or any other jurisdiction.\nDiamond\nResorts International Marketing, Inc.\nDate:\n___ ___ ___ ___ ____ ___ ___ ___ _\n__ ___ ___ ____ ___ ___ ___ ___ ___\n_\nBy:\nIts:\nI HAVE CAREFULLY READ AND CONSIDERED THE TERMS OF THIS AGREEMENT. I HAVE ASKED ANY\nQUESTIONS ABOUT THEM WHICH I MIGHT HAVE HAD AND UNDERSTAND THEIR IMPLICATIONS. I ALSO\nUNDERSTAND THAT ANY CHANGES IN THIS AGREEMENT MUST BE IN WRITING AND SIGNED BY THE\nCOMPANY’S CHIEF EXECUTIVE OFFICER.\nDate:\n___ ___ ___ ___ ____ ___ ___ ___ _\n__ ___ ___ ____ ___ ___ ___ ___ ___\n_\nMichael Flaskey\nDO NOT SIGN THIS AGREEMENT UNLESS YOU UNDERSTAND AND AGREE\nTO ALL OF ITS TERMS. THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE.
+cc37a90cde61e49f20b8d12f710a5719.pdf	effective_date jurisdiction party term	NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (the Agreement), dated as\nof,20\n, is executed by\n(Recipient) for the benefit\nof VIOLIN MEMORY, INC., a Delaware corporation (Violin). Recipient is a contractor or provider of services to premises leased by Violin\nlocated at 685 Clyde Avenue in the City of Mountain View, California (the "Premises") and in connection with Recipient's provision of such\nservices, Recipient may come into contact or observe information that is sensitive, proprietary or confidential to Violin. In consideration for payment\nto Recipient of compensation for such services pursuant to a separate agreement or agreements between Recipient and Violin, or between Recipient\nand the owner of the building in which the Premises are located, as the case may be, Recipient agrees as follows:\n1. Definition. Proprietary Information means, to the extent observed by Recipient or that otherwise is disclosed to Recipient, all financial, business,\nlegal and technical information of Violin or any of its affiliates, suppliers, customers and employees (including information about research,\ndevelopment, operations, marketing, transactions, regulatory affairs, discoveries, inventions, methods, processes, articles, materials, algorithms,\nsoftware, specifications, designs, drawings, data, strategies, plans, prospects, know-how and ideas, whether tangible or intangible, and including all\ncopies, analyses and derivatives thereof). Proprietary Information shall not include any information that (a) was rightfully known to Recipient\nwithout restriction before receipt from Violin, (b) is rightfully disclosed to Recipient by a third party without restriction or (c) is or becomes\ngenerally known to the public through no fault of Recipient.\n2. Restrictions. Recipient agrees (a) to maintain the Proprietary Information as secret, and exercise all reasonable precautions to prevent\nunauthorized access to it, (b) not to copy the Proprietary Information, and (c) not to disclose it to any third party. Recipient shall promptly notify\nViolin of any unauthorized use or disclosure of Proprietary Information, and shall be responsible for any breach of confidentiality by its employees\nand agents.\n3. Remedies. Due to the unique nature of the Proprietary Information, Recipient agrees that any breach or threatened breach of this Agreement will\ncause not only financial harm to Violin, but also irreparable harm for which money damages will not be an adequate remedy. Therefore, Violin shall\nbe entitled, in addition to any other legal or equitable remedies, to an injunction or similar equitable relief against any such breach or threatened\nbreach without the necessity of posting any bond.\n4. General. The failure of Violin to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such\nrights. Unless expressly provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity,\nand the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. In the event that any provision of this Agreement\nshall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the\nAgreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with\nthe laws of the State of California without regard to the conflicts of laws provisions thereof. Exclusive jurisdiction and venue for any action arising\nunder this Agreement is in the federal and state courts located in California having jurisdiction over Violin’s principal office, and Recipient hereby\nconsents to such jurisdiction and venue for this purpose. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will\nbe entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action or\nproceeding and enforcing any judgment or order obtained. Any notice hereunder will be effective upon receipt and shall be given in writing, in\nEnglish and delivered to the other party at its address given herein or at such other address designated by written notice.\nIN WITNESS WHEREOF, Recipient has executed this Agreement effective as of the date and year first written above.\nRECIPIENT\nBy:\nName:\nTitle:\nPage 1	NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (the Agreement), dated as of ,20 , is executed by (Recipient) for the benefit\nof VIOLIN MEMORY, INC., a Delaware corporation (Violin). Recipient is a contractor or provider of services to premises leased by Violin\nlocated at 685 Clyde Avenue in the City of Mountain View, California (the "Premises") and in connection with Recipient's provision of such\nservices, Recipient may come into contact or observe information that is sensitive, proprietary or confidential to Violin. In consideration for payment\nto Recipient of compensation for such services pursuant to a separate agreement or agreements between Recipient and Violin, or between Recipient\nand the owner of the building in which the Premises are located, as the case may be, Recipient agrees as follows:\n1. Definition. Proprietary Information means, to the extent observed by Recipient or that otherwise is disclosed to Recipient, all financial, business,\nlegal and technical information of Violin or any of its affiliates, suppliers, customers and employees (including information about research,\ndevelopment, operations, marketing, transactions, regulatory affairs, discoveries, inventions, methods, processes, articles, materials, algorithms,\nsoftware, specifications, designs, drawings, data, strategies, plans, prospects, know-how and ideas, whether tangible or intangible, and including all\ncopies, analyses and derivatives thereof). Proprietary Information shall not include any information that (a) was rightfully known to Recipient\nwithout restriction before receipt from Violin, (b) is rightfully disclosed to Recipient by a third party without restriction or (c) is or becomes\ngenerally known to the public through no fault of Recipient.\n2. Restrictions. Recipient agrees (a) to maintain the Proprietary Information as secret, and exercise all reasonable precautions to prevent\nunauthorized access to it, (b) not to copy the Proprietary Information, and (c) not to disclose it to any third party. Recipient shall promptly notify\nViolin of any unauthorized use or disclosure of Proprietary Information, and shall be responsible for any breach of confidentiality by its employees\nand agents.\n3. Remedies. Due to the unique nature of the Proprietary Information, Recipient agrees that any breach or threatened breach of this Agreement will\ncause not only financial harm to Violin, but also irreparable harm for which money damages will not be an adequate remedy. Therefore, Violin shall\nbe entitled, in addition to any other legal or equitable remedies, to an injunction or similar equitable relief against any such breach or threatened\nbreach without the necessity of posting any bond.\n4. General. The failure of Violin to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such\nrights. Unless expressly provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity,\nand the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. In the event that any provision of this Agreement\nshall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the\nAgreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with\nthe laws of the State of California without regard to the conflicts of laws provisions thereof. Exclusive jurisdiction and venue for any action arising\nunder this Agreement is in the federal and state courts located in California having jurisdiction over Violin’s principal office, and Recipient hereby\nconsents to such jurisdiction and venue for this purpose. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will\nbe entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action or\nproceeding and enforcing any judgment or order obtained. Any notice hereunder will be effective upon receipt and shall be given in writing, in\nEnglish and delivered to the other party at its address given herein or at such other address designated by written notice.\nIN WITNESS WHEREOF, Recipient has executed this Agreement effective as of the date and year first written above.\nRECIPIENT\nBy:\nName:\nTitle:\nPage 1	NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (the Agreement), dated as\nof 20 is executed by\n(Recipient) for the benefit\nof VIOLIN MEMORY, INC., a Delaware corporation (Violin). Recipient is a contractor or provider of services to premises leased by Violin\nlocated at 685 Clyde Avenue in the City of Mountain View, California (the "Premises") and in connection with Recipient's provision of such\nservices,\nRecipient may come into contact or observe information that is sensitive, proprietary or confidential to Violin. In consideration for payment\nto Recipient of compensation for such services pursuant to a separate agreement or agreements between Recipient and Violin, or between Recipient\nand the owner of the building in which the Premises are located, as the case may be, Recipient agrees as follows:\n1. Definition. Proprietary Information means, to the extent observed by Recipient or that otherwise is disclosed to Recipient, all financial, business,\nlegal and technical information of Violin or any of its affiliates, suppliers, customers and employees (including information about research,\ndevelopment, operations, marketing, transactions, regulatory affairs, discoveries, inventions, methods, processes, articles, materials, algorithms,\nsoftware, specifications, designs, drawings, data, strategies, plans, prospects, know-how and ideas, whether tangible or intangible, and including all\ncopies, analyses and derivatives thereof). Proprietary Information shall not include any information that (a) was rightfully known to Recipient\nwithout restriction before receipt from Violin, (b) is rightfully disclosed to Recipient by a third party without restriction or (c) is or becomes\ngenerally known to the public through no fault of Recipient.\n2.\nRestrictions. Recipient agrees (a) to maintain the Proprietary Information as secret, and exercise all reasonable precautions to prevent\nunauthorized access to it, (b) not to copy the Proprietary Information, and (c) not to disclose it to any third party. Recipient shall promptly notify\nViolin of any unauthorized use or disclosure of Proprietary Information, and shall be responsible for any breach of confidentiality by its employees\nand agents.\n3. Remedies. Due to the unique nature of the Proprietary Information, Recipient agrees that any breach or threatened breach of this Agreement will\ncause not only financial harm to Violin, but also irreparable harm for which money damages will not be an adequate remedy. Therefore, Violin\nshall\nbe entitled, in addition to any other legal or equitable remedies, to an injunction or similar equitable relief against any such breach or threatened\nbreach without the necessity of posting any bond.\n4. General. The failure of Violin to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such\nrights. Unless expressly provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity,\nand the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. In the event that any provision of this Agreement\nshall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the\nAgreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance\nwith\nthe\nlaws of the State of California without regard to the conflicts of laws provisions thereof. Exclusive jurisdiction and venue for any action arising\nunder this Agreement is in the federal and state courts located in California having jurisdiction over Violin's principal office, and Recipient hereby\nconsents to such jurisdiction and venue for this purpose. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will\nbe entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action\nor\nproceeding and enforcing any judgment or order obtained. Any notice hereunder will be effective upon receipt and shall be given in writing, in\nEnglish and delivered to the other party at its address given herein or at such other address designated by written notice.\nIN WITNESS WHEREOF, Recipient has executed this Agreement effective as of the date and year first written above.\nRECIPIENT\nBy:\nName:\nTitle:\nPage 1	NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (the Agreement), dated as\nof,20\n, is executed by\n(Recipient) for the benefit\nof VIOLIN MEMORY, INC., a Delaware corporation (Violin). Recipient is a contractor or provider of services to premises leased by Violin\nlocated at 685 Clyde Avenue in the City of Mountain View, California (the "Premises") and in connection with Recipient's provision of such\nservices, Recipient may come into contact or observe information that is sensitive, proprietary or confidential to Violin. In consideration for payment\nto Recipient of compensation for such services pursuant to a separate agreement or agreements between Recipient and Violin, or between Recipient\nand the owner of the building in which the Premises are located, as the case may be, Recipient agrees as follows:\n1. Definition. Proprietary Information means, to the extent observed by Recipient or that otherwise is disclosed to Recipient, all financial, business,\nlegal and technical information of Violin or any of its affiliates, suppliers, customers and employees (including information about research,\ndevelopment, operations, marketing, transactions, regulatory affairs, discoveries, inventions, methods, processes, articles, materials, algorithms,\nsoftware, specifications, designs, drawings, data, strategies, plans, prospects, know-how and ideas, whether tangible or intangible, and including all\ncopies, analyses and derivatives thereof). Proprietary Information shall not include any information that (a) was rightfully known to Recipient\nwithout restriction before receipt from Violin, (b) is rightfully disclosed to Recipient by a third party without restriction or (c) is or becomes\ngenerally known to the public through no fault of Recipient.\n2. Restrictions. Recipient agrees (a) to maintain the Proprietary Information as secret, and exercise all reasonable precautions to prevent\nunauthorized access to it, (b) not to copy the Proprietary Information, and (c) not to disclose it to any third party. Recipient shall promptly notify\nViolin of any unauthorized use or disclosure of Proprietary Information, and shall be responsible for any breach of confidentiality by its employees\nand agents.\n3. Remedies. Due to the unique nature of the Proprietary Information, Recipient agrees that any breach or threatened breach of this Agreement will\ncause not only financial harm to Violin, but also irreparable harm for which money damages will not be an adequate remedy. Therefore, Violin shall\nbe entitled, in addition to any other legal or equitable remedies, to an injunction or similar equitable relief against any such breach or threatened\nbreach without the necessity of posting any bond.\n4. General. The failure of Violin to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such\nrights. Unless expressly provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity,\nand the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. In the event that any provision of this Agreement\nshall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the\nAgreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with\nthe laws of the State of California without regard to the conflicts of laws provisions thereof. Exclusive jurisdiction and venue for any action arising\nunder this Agreement is in the federal and state courts located in California having jurisdiction over Violin’s principal office, and Recipient hereby\nconsents to such jurisdiction and venue for this purpose. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will\nbe entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action or\nproceeding and enforcing any judgment or order obtained. Any notice hereunder will be effective upon receipt and shall be given in writing, in\nEnglish and delivered to the other party at its address given herein or at such other address designated by written notice.\nIN WITNESS WHEREOF, Recipient has executed this Agreement effective as of the date and year first written above.\nRECIPIENT\nBy:\nName:\nTitle:\nPage 1
+ccfde6c941f150e15e6220cc18aa1041.pdf	effective_date jurisdiction party	Exhibit B\nNONCOMPETITION AGREEMENT\nThis NONCOMPETITION AGREEMENT (this “Agreement”) is entered into as of this 16th day of June, 2008, by and among BNC Bancorp, a North Carolina corporation, Bank of North Carolina, a North Carolina-chartered bank and wholly\nowned subsidiary of BNC Bancorp (the “Bank”), and Ralph N. Strayhorn III (the “Executive”).\nWHEREAS, the Executive’s service as an officer and director of BNC Bancorp and the Bank is terminating on June 16, 2008,\nWHEREAS, the Executive possesses skills of a special, unique, and unusual character, which therefore have distinctive value,\nWHEREAS, the Executive is familiar with BNC Bancorp’s and the Bank’s business, operations, and properties, and during the time the Executive has been employed by the Bank he has accumulated extensive banking experience and he\nhas established valuable business and client contacts in the market areas served by BNC Bancorp and the Bank,\nWHEREAS, the Executive entered into an employment agreement with BNC Bancorp and the Bank providing for payment of severance benefits after termination of the Executive’s employment, conditioned upon the Executive first\nentering into this Agreement, and\nWHEREAS, the Executive’s employment has terminated or terminates effective June 16, 2008, and severance benefits therefore will become payable under his employment agreement after execution of this Agreement.\nNOW THEREFORE, in consideration of these premises, the mutual covenants contained herein, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows.\nARTICLE 1\nAGREEMENT NOT TO COMPETE\n1.1 Noncompetition. (a) Agreement not to compete. The Executive hereby agrees that until June 16, 2010 he shall not directly or indirectly, whether for his own account or for the account of any other person, firm, corporation, or other\nbusiness organization –\n(1) engage as an employee, officer, director, manager, salesperson, consultant, independent contractor, representative, or other agent in providing Banking Services (as defined below) on behalf of any other person, firm, corporation, or\nother business organization that is a competitor of the Bank or its Affiliates (as defined below) in Davidson County, any counties contiguous thereto, any counties in which the Bank or any of its Affiliates has an office, or any counties\nfrom which the Bank or any of its affiliates derives revenue that, in the sole judgement of the Bank, is significant,\n(2) provide Banking Services to any Client (as defined below),\n(3) make any statement or take any actions that, in the sole judgement of the Bank, interfere with the Bank’s or its Affiliates’ business relationships with any Client, including but not limited to any statements that are harmful to the\nreputation of the Bank or any of its Affiliates or their standing in the communities they serve,\n(4) except on behalf of the Bank or its Affiliates as may be requested by the Bank, make contact either directly or indirectly with any Client, nor shall the Executive otherwise induce or encourage any Client to enter into any business\nrelationship with any person, firm, corporation, or other business organization other than the Bank or its Affiliates relating to Banking Services or banking business of any type,\n(5) entice or encourage any person employed by or associated with the Bank or its Affiliates as an employee, officer, director, manager, salesperson, consultant, independent contractor, representative, or other agent to serve as an\nemployee, officer, director, manager, salesperson, consultant, independent contractor, representative, or other agent of any person, firm, corporation, or other business organization other than the Bank or its Affiliates, or\n(6) take any actions interfering with the Bank’s or its Affiliates’ property rights in lists of clients, or otherwise diminish the value of such lists to the Bank or its Affiliates.\n(b) Definition of Affiliate. For purposes of this Agreement, the term “Affiliate” means any entity, corporation, or other business organization controlled by the Bank, controlling the Bank, or under common control with the Bank, including\nbut not limited to any subsidiaries of the Bank, any company controlling the Bank, or any company under common control with the Bank.\n(c) Definition of Banking Services. For purposes of this Agreement, the term “Banking Services” means retail or commercial banking business, and all other services customarily provided by banks or otherwise provided by the Bank or its\nAffiliates; provided, however that the term Banking Services specifically excludes asset and trust management, wealth management, and investment services. The Bank understands that the Executive intends after termination of his\nemployment with the Bank to engage in the business of providing asset and trust management, wealth management, and investment services and that the Executive may do so in markets in which the Bank conducts business and to\ncustomers that are or may be Clients of the Bank.\n(d) Definition of Client. For purposes of this Agreement the term “Client” means all persons, firms, corporations, entities, or business organizations who are or were customers or clients of the Bank or any of its Affiliates –\n(1) on the date of this Agreement,\n(2) on the date the Executive’s termination from active service with the Bank becomes effective,\n(3) at any time during the two-year period before the Executive’s termination from active service with the Bank becomes effective, and\n(4) any persons who become clients of the Bank or any of its Affiliates hereafter who were identified by a representative of the Bank or its Affiliates, but only if those persons are identified as prospective clients in writing by the Bank to\nthe Executive when the Executive’s termination from active service becomes effective.\n1.2 Period of time and scope. The Executive acknowledges and agrees that the duration and scope of the noncompetition provision set forth in section 1.1 are reasonable and necessary to protect the legitimate business interests of BNC\nBancorp and the Bank and that they do not interfere unduly with the Executive’s personal or economic freedoms. The Executive acknowledges that his willingness to execute and comply with this Agreement was an essential condition to\nBNC Bancorp’s and the Bank’s willingness to enter into the separate employment agreement with the Executive. If a court of competent jurisdiction or a dispute resolution proceeding authorized hereunder and to which BNC Bancorp and\nthe Bank have agreed to be subject nevertheless holds that the duration or scope, including but not limited to geographic scope, of this Agreement is unreasonable, invalid, or unenforceable, the duration or scope shall be reduced or\nreformed to the extent necessary so that section 1.1 may be enforced by BNC Bancorp and the Bank during such period and for such scope as are held to be reasonable, valid, and enforceable.\n1.3 Understandings. It is understood by and between the parties hereto that the Executive’s covenants in section 1.1 are an essential element of this Agreement and that, but for the agreement of the Executive to comply with such\ncovenants, BNC Bancorp and the Bank would not have entered into the Separation Agreement and Full and Final Release of Claims with the Executive. BNC Bancorp and the Bank and the Executive have independently consulted with or\nhave had the opportunity to independently consult with their respective counsel concerning the reasonableness and validity of such covenants.\nARTICLE 2\nCONFIDENTIALITY\n2.1 Nondisclosure. The Executive shall not reveal to any person, firm, corporation, or other business organization any confidential information of any nature concerning the Bank or its Affiliates, their business, or anything connected\ntherewith. As used in this Article 2, the term “confidential information” means all of the Bank’s and its Affiliates’ confidential and proprietary information and trade secrets in existence on the date hereof or at any time during the term of\nthis Agreement, including but not limited to –\n(a) the whole or any portion or phase of any business plans, financial information, purchasing data, supplier data, accounting data, or other financial information,\n(b) the whole or any portion or phase of any research and development information, design procedures, algorithms, or processes, or other technical information,\n(c) the whole or any portion or phase of any marketing or sales information, sales records, customer lists or client lists, prices, sales projections, or other sales information, and\n(d) trade secrets, as defined from time to time by the laws of the State of North Carolina.\nNotwithstanding the foregoing, confidential information excludes information that – as of the date hereof or at any time after the date hereof – is published or disseminated without obligation of confidence or that becomes a part of the\npublic domain (x) by or through action of the Bank or its Affiliates, and (y) otherwise than by or at the direction of the Executive. This section 2.1 does not prohibit disclosure required by an order of a court having jurisdiction or a\nsubpoena from an appropriate governmental agency.\n2.2 Return of materials. The Executive agrees to deliver or return to the Bank all written confidential information furnished by the Bank or its Affiliates or prepared by the Executive in connection with his services to the Bank. The\nExecutive shall retain no copies thereof after termination of this Agreement or termination of the Executive’s employment with the Bank.\n2.3 Injunctive relief. The Executive acknowledges that it is impossible to measure in money the damages that will accrue to BNC Bancorp and the Bank if the Executive fails to observe the obligations imposed on him by this Article 2.\nAccordingly, if BNC Bancorp or the Bank institutes an action to enforce the provisions hereof, the Executive hereby waives the claim or defense that an adequate remedy at law is available to BNC Bancorp or the Bank, and the Executive\nagrees not to urge in any such action the claim or defense that an adequate remedy at law exists.\n2.4 Survival of common law protection. During and after the term of this Agreement, in addition to the protection thereof given by this Agreement the confidential information of the Bank and its Affiliates shall be entitled to all such\nprotections as may be available under applicable law and the Bank and its Affiliates may seek to enforce any of its rights with respect thereto.\n2.5 Creative work. The Executive agrees that all creative work and work product, including but not limited to all technology, business management tools, processes, software, patents, trademarks, and copyrights developed by the\nExecutive during the term of the employment agreement, regardless of when or where such work or work product was produced, constitutes work made for hire, all rights of which are owned by BNC Bancorp and the Bank. The Executive\nhereby assigns to BNC Bancorp and to the Bank all rights, title, and interest, whether copyright, trade secret, trademark, patent, or otherwise, in all such work or work product, regardless of whether the same is subject to protection by\npatent, trademark, or copyright laws.\n2.6 Rights and obligations survive termination of this Agreement. The rights and obligations set forth in this Article 2 shall survive termination of this Agreement.\nARTICLE 3\nSPECIFIC PERFORMANCE\nThe Executive’s covenants contained in Articles 1 and 2 shall survive termination of the Executive’s employment with the Bank for any reason, and shall be enforceable after such termination. Without intending to limit the remedies\navailable to BNC Bancorp and the Bank, the Executive agrees that damages at law are an insufficient remedy for violation by the Executive of his covenants contained in this Agreement. Accordingly, the Executive hereby agrees that\neither or both of BNC Bancorp or the Bank may apply for and is entitled to injunctive relief in any court of competent jurisdiction to restrain the breach or threatened breach of, or otherwise to specifically enforce, any of the covenants of\nsuch Articles, in each case without proof of actual damages, in addition to any other remedies that may be available under applicable law. The Executive hereby waives the claim or defense that an adequate remedy at law is available to\nBNC Bancorp or the Bank, and the Executive agrees not to urge in any action or proceeding the claim or defense that an adequate remedy at law exists.\nWithout limiting the generality of the foregoing, without limiting the remedies available to BNC Bancorp or the Bank for violation of this Agreement, and without constituting an election of remedies, if the Executive violates any of the\nterms of Articles 1 or 2 he shall forfeit on his own behalf and that of his beneficiary(ies) any rights to and interest in any severance or other benefits under the Separation Agreement and Full and Final Release of Claims and the Separation\nAgreement and Full and Final Release of Claims shall thereafter be null, void, and of no further force or effect.\nARTICLE 4\nMISCELLANEOUS\n4.1 Successors and assigns. Without written consent of the other party, neither BNC Bancorp and the Bank nor the Executive shall assign, transfer, or delegate this Agreement or any rights or obligations under this Agreement except as\nexpressly provided herein. However, any merger or consolidation of the Bank (or any direct or indirect parent thereof) or any sale or transfer of all or substantially all of the stock or assets of the Bank (or any direct or indirect parent\nthereof) shall be considered an assignment expressly agreed to and consistent with the terms of this Agreement and shall not be considered a violation of this Agreement.\nThis Agreement shall be binding upon the parties hereto and their heirs, personal representatives, successors, and permitted assigns. This Agreement shall inure to the benefit of and be enforceable by the Executive’s personal or legal\nrepresentatives, executors, administrators, successors, heirs, distributees, and legatees.\n4.2 Governing law. This Agreement shall be construed under and governed by the internal laws of the State of North Carolina, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of North\nCarolina or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of North Carolina.\n4.3 Entire agreement. This Agreement, as well as the Separation Agreement of even date and this documents referenced therein at Section 7.3(a), set forth the entire agreement of the parties with respect to the subject matter and any oral\nor written statements, representations, agreements, or understandings not set forth in this Agreement that were made or entered into prior to or contemporaneously with the execution of this Agreement are hereby rescinded, revoked, and\nrendered null and void by the parties.\n4.4 Notices. Any notice required or permitted under this Agreement shall be deemed to have been effectively made or given if in writing and personally delivered, delivered by mail properly addressed in a sealed envelope, postage prepaid\nby certified or registered mail, delivered by a reputable overnight delivery service, or sent by facsimile. Unless otherwise changed by notice, notice shall be properly addressed to the Executive if addressed to 2201 Rhododendron Court,\nCharlotte, North Carolina 28205, and properly addressed to BNC Bancorp or the Bank if addressed to BNC Bancorp, 831 Julian Avenue, Thomasville, North Carolina 27361-1148, Attention: Corporate Secretary.\n4.5 Severability. In the case of conflict between any provision of this Agreement and any governing statute, law, regulation, or judicial precedent, the latter shall prevail, but the affected provisions of this Agreement shall be curtailed and\nlimited solely to the extent necessary to bring them within the requirements of law. If any provision of this Agreement is held by a court of competent jurisdiction or in a dispute resolution proceeding to which BNC Bancorp and the Bank\nhave agreed to be subject to be indefinite, invalid, void, voidable, or otherwise unenforceable, the remainder of this Agreement shall continue in full force and effect unless that would clearly be contrary to the intentions of the parties or\nwould result in an injustice.\n4.6 Captions and counterparts. The captions in this Agreement exist solely for convenience. The captions do not define, limit, or describe the scope or intent of this Agreement. This Agreement may be executed in several counterparts,\neach of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.\n4.7 Amendment and waiver. This Agreement may not be amended, released, discharged, abandoned, changed, or modified except by an instrument in writing signed by each of the parties hereto. The failure of any party hereto to enforce\nat any time any of the provisions of this Agreement shall not be construed to be a waiver of any such provision, nor affect the validity of this Agreement or any part thereof or the right of any party to enforce each and every provision. No\nwaiver or any breach of this Agreement shall be held to be a waiver of any other or subsequent breach.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first written above.\nEXECUTIVE\nBNC BANCORP\n/s/ Ralph N. Strayhorn III\nBy:\n/s/ W. Swope Montgomery, Jr.\nRalph N. Strayhorn III\nIts:\nPresident and CEO\nBANK OF NORTH CAROLINA\nBy:\n/s/ W. Swope Montgomery, Jr.\nIts:\nPresident and CEO	Exhibit B\nNONc 0MPETITION AGREEMENT\nThis NONc 0MPETITION AGREEMENT (this "Agreement? is entered into as of this 16th day of June, 2008, by and among BNC Bancorp, a North Carolina corporation, Bank of North Carolina, a North Carolina-chartered bank and wholly\nowned subsidiary of BNC Bancorp (the "Bank"), and Ralph N. Strayhorn III (the ”Executive").\nWHEREAS, the Executive’s service as an officer and director of BNC Bancorp and the Bank is terminating on June 16, 2008,\nWHEREAS, the Executive possesses skills of a special, unique, and unusual character, which therefore have distinctive value,\nWHEREAS, the Executive is familiar with BNC Bancorp's and the Bank’s business, operations, and properties, and during the time the Executive has been employed by the Bank he has accumulated extensive banking experience and he\nhas established valuable business and client conmcts in the market areas served by BNC Bancorp and the Bank,\nWHEREAS, the Executive entered into an employment agreement with BNC Bancorp and the Bank providing for payment of severance benefits after termination of the Executive's employment, conditioned upon the Executive first\nentering into this Agreement, and\nWHEREAS, the Executive’s employment has terminated or terminates effective June 16, 2008, and severance benefits therefore will become payable under his employment agreement after execution of this Agreement.\nNow THEREFORE, in consideration of these premises, the mutual covenants contained herein, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows.\nARTICLE 1\nAGREEMENT NOT To COMPETE\n1.1 Noncompetition. (a) Agreement not to compete. The Executive hereby agrees that until June 16, 2010 he shall not directly or indirectly, whether for his own account or for the account of any other person, firm, corporation, or other\nbusiness organization —\n(1) engage as an employee, officer, director, manager, salesperson, consultant, independent contractor, representative, or other agent in providing Banking Services (as defined below) on behalf of any other person, firm, corporation, or\nother business organization that is a competitor of the Bank or its Affiliates (as defined below) in Davidson County, any counties contiguous thereto, any counties in which the Bank or any of its Affiliates has an office, or any counties\nfrom which the Bank or any of its affiliates derives revenue that, in the sole judgement of the Bank, is significant,\n(2) provide Banking Services to any Client (as defined below),\n(3) make any smtement or mke any actions that, in the sole judgement of the Bank, interfere with the Bank' s or its Affiliates' business relationships with any Client, including but not limited to any statements that are harmful to the\nreputation of the Bank or any of its Affiliates or their standing in the communities they serve,\n(4) except on behalf of the Bank or its Affiliates as may be requested by the Bank, make conmct either directly or indirectly with any Client, nor shall the Executive otherwise induce or encourage any Client to enter into any business\nrelationship with any person, firm, corporation, or other business organization other than the Bank or its Affiliates relating to Banking Services or banking business of any type,\n(5) entice or encourage any person employed by or associated with the Bank or its Affiliates as an employee, officer, director, manager, salesperson, consultant, independent contiactor, represenmtive, or other agent to serve as an\nemployee, officer, director, manager, salesperson, consultant, independent contractor, representative, or other agent of any person, firm, corporation, or other business organization other than the Bank or its Affiliates, or\n(6) take any actions interfering with the Bank’s or its Affiliates' property rights in lists of clients, or otherwise diminish the value of such lists to the Bank or its Affiliates.\n—\n(b) Definition of Affiliate For purposes of this Agreement, the term "A ffiliate” means any entity, corporation, or other business organization controlled by the Bank, controlling the Bank, or under common control with the Bank, including\nbut not limited to any subsidiaries of the Bank, any company controlling the Bank, or any company under common control with the Bank.\n(c) Definition of Banking Services. For purposes of this Agreement, the term ”B anking Services" means remil or commercial banking business, and all other services customarily provided by banks or otherwise provided by the Bank or its\nAffiliates; provided, however that the term Banking Services specifically excludes asset and trust management, wealth management, and investment services. The Bank understands that the Executive intends after termination of his\nemployment with the Bank to engage in the business of providing asset and trust management, wealth management, and investment services and that the Executive may do so in markets in which the Bank conducts business and to\ncustomers that are or may be Clients of the Bank.\n(d) Definition of Client. For purposes of this Agreement the term "Client” means all persons, firms, corporations, entities, or business organizations who are or were customers or clients of the Bank or any of its Affiliates —\n(1) on the date of this Agreement,\n(2) on the date the Executive's termination from active service with the Bank becomes effective,\n(3) at any time during the two-year period before the Executive’s termination from active service with the Bank becomes effective, and\n(4) any persons who become clients of the Bank or any of its Affiliates hereafter who were identified by a representative of the Bank or its Affiliates, but only if those persons are identified as prospective clients in writing by the Bank to\nthe Executive when the Executive’s termination from active service becomes effective\n1.2 Period of time and scope. The Executive acknowledges and agrees that the duration and scope of the noncompetition provision set forth in section 1.1 are reasonable and necessary to protect the legitimate business interests of BNC\nBancorp and the Bank and that they do not interfere unduly with the Executive’s personal or economic freedoms The Executive acknowledges that his willingness to execute and comply with this Agreement was an essential condition to\nBNC Bancorp’s and the Bank’s willingness to enter into the separate employment agreement with the Executive. If a court of competent jurisdiction or a dispute resolution proceeding authorized hereunder and to which BNC Bancorp and\nthe Bank have agreed to be subject nevertheless holds that the duration or scope, including but not limited to geographic scope, of this Agreement is unreasonable, invalid, or unenforceable, the duration or scope shall be reduced or\nreformed to the extent necessary so that section 1.1 may be enforced by BNC Bancorp and the Bank during such period and for such scope as are held to be reasonable, valid, and enforceable.\n1.3 Undermndings. It is understood by and between the parties hereto that the Executive’s covenants in section 1.1 are an essential element of this Agreement and that, but for the agreement of the Executive to comply with such\ncovenants, BNC Bancorp and the Bank would not have entered into the Separation Agreement and Full and Final Release of Claims with the Executive. BNC Bancorp and the Bank and the Executive have independently consulted with or\nhave had the opportunity to independently consult with their respective counsel concerning the reasonableness and validity of such covenants.\nARTICLE 2\nCONFIDENTIALITY\n2.1 Nondisclosure The Executive shall not reveal to any person, firm, corporation, or other business organization any confidential information of any nature concerning the Bank or its Affiliates, their business, or anything connected\ntherewith. As used in this Article 2, the term "confidential information” means all of the Bank’s and its Affiliates’ confidential and proprietary information and trade secrets in existence on the date hereof or at any time during the term of\nthis Agreement, including but not limited to —\n(a) the whole or any portion or phase of any business plans, financial information, purchasing data, supplier data, accounting data, or other financial information,\n(b) the whole or any portion or phase of any research and development information, design procedures, algorithms, or processes, or other technical information,\n(c) the whole or any portion or phase of any marketing or sales information, sales records, customer lists or client lists, prices, sales projections, or other sales information, and\n(d) trade secrets, as defined from time to time by the laws of the State of North Carolina.\nNotwithsmnding the foregoing, confidential information excludes information that - as of the date hereof or at any time after the date hereof — is published or disseminated without obligation of confidence or that becomes a part of the\npublic domain (x) by or through action of the Bank orits Affiliates, and (y) otherwise than by or at the direction of the Executive. This section 2.1 does not prohibit disclosure required by an order of a court having jurisdiction or a\nsubpoena from an appropriate governmental agency.\n2.2 Return of materials. The Executive agrees to deliver or return to the Bank all written confidential information furnished by the Bank or its Affiliates or prepared by the Executive in connection with his services to the Bank. The\nExecutive shall retain no copies thereof after termination of this Agreement or termination of the Executive’s employment with the Bank.\n2.3 Injunctive relief. The Executive acknowledges that it is impossible to measure in money the damages that will accrue to BNC Bancorp and the Bank if the Executive fails to observe the obligations imposed on him by this Article 2.\nAccordingly, if BNC Bancorp or the Bank institutes an action to enforce the provisions hereof, the Executive hereby waives the claim or defense that an adequate remedy at law is available to BNC Bancorp or the Bank, and the Executive\nagrees not to urge in any such action the claim or defense that an adequate remedy at law exists\n2.4 Survival of common law protection. During and after the term of this Agreement, in addition to the protection thereof given by this Agreement the confidential information of the Bank and its Affiliates shall be entitled to all such\nprotections as may be available under applicable law and the Bank and its Affiliates may seek to enforce any of its rights with respect thereto.\n2.5 Creative work. The Executive agrees that all creative work and work product, including but not limited to all technology, business management tools, processes, software, patents, trademarks, and copyrights developed by the\nExecutive during the term of the employment agreement, regardless of when or where such work or work product was produced, constitutes work made for hire, all rights of which are owned by BNC Bancorp and the Bank. The Executive\nhereby assigns to BNC Bancorp and to the Bank all rights, title, and interest, whether copyright, trade secret, trademark, patent, or otherwise, in all such work or work product, regardless of whether the same is subject to protection by\npatent, trademark, or copyright laws.\n2.6 Rights and obligations survive termination of this Agreement. The rights and obligations set forth in this Article 2 shall survive termination of this Agreement.\nARTICLE 3\nSPECIFIC PERFORMANCE\nThe Executive's covenants contained in Articles 1 and 2 shall survive termination of the Executive’s employment with the Bank for any reason, and shall be enforceable after such termination. Without intending to limit the remedies\navailable to BNC Bancorp and the Bank, the Executive agrees that damages at law are an insufficient remedy for violation by the Executive of his covenants contained in this Agreement. Accordingly, the Executive hereby agrees that\neither or both of BNC Bancorp or the Bank may apply for and is entitled to injunctive relief in any court of competent jurisdiction to restrain the breach or threatened breach of, or otherwise to specifically enforce, any of the covenants of\nsuch Articles, in each case without proof of actual damages, in addition to any other remedies that may be available under applicable law. The Executive hereby waives the claim or defense that an adequate remedy at law is available to\nBNC Bancorp or the Bank, and the Executive agrees not to urge in any action or proceeding the claim or defense that an adequate remedy at law exists.\nWithout limiting the generality of the foregoing, without limiting the remedies available to BNC Bancorp or the Bank for violation of this Agreement, and without constituting an election of remedies, if the Executive violates any of the\nterms of Articles 1 or 2 he shall forfeit on his own behalf and that of his beneficiary(ies) any rights to and interest in any severance or other benefits under the Separation Agreement and Full and Final Release of Claims and the Separation\nAgreement and Full and Final Release of Claims shall thereafter be null, void, and of no further force or effect.\nARTICLE 4\nMISCELLANEOUS\n4.1 Successors and assigns. Without written consent of the other party, neither BNC Bancorp and the Bank nor the Executive shall assign, transfer, or delegate this Agreement or any rights or obligations under this Agreement except as\nexpressly provided herein. However, any merger or consolidation of the Bank (or any direct orindirect parent thereof) or any sale or transfer of all or substantially all of the stock or assets of the Bank (or any direct or indirect parent\nthereof) shall be considered an assignment expressly agreed to and consistent with the terms of this Agreement and shall not be considered a violation of this Agreement.\nThis Agreement shall be binding upon the parties hereto and their heirs, personal representatives, successors, and permitted assigns. This Agreement shall inure to the benefit of and be enforceable by the Executive’s personal orlegal\nrepresentatives, executors, administrators, successors, heirs, distiibutees, and legatees.\n4.2 Governing law. This Agreement shall be construed under and governed by the internal laws of the State of North Carolina, without giving effect to any choice of law or conflict of law provision or rule (whether of the Smte of North\nCarolina or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of North Carolina.\n4.3 Entire agreement. This Agreement, as well as the Separation Agreement of even date and this documents referenced therein at Section 7.3(a), set forth the entire agreement of the parties with respect to the subject matter and any oral\nor written statements, representations, agreements, or understandings not set forth in this Agreement that were made or entered into prior to or contemporaneously with the execution of this Agreement are hereby rescinded, revoked, and\nrendered null and void by the parties.\n4.4 Notices Any notice required or permitted under this Agreement shall be deemed to have been effectively made or given if in writing and personally delivered, delivered by mail properly addressed in a sealed envelope, postage prepaid\nby certified or registered mail, delivered by a reputable overnight delivery service, or sent by facsimile. Unless otherwise changed by notice, notice shall be properly addressed to the Executive if addressed to 2201 Rhododendron Court,\nCharlotte, North Carolina 28205, and properly addressed to BNC Bancorp or the Bank if addressed to BNC Bancorp, 831 Julian Avenue, Thomasville, North Carolina 27361-1148, Attention: Corporate Secremry.\n4.5 Severability. In the case of conflict between any provision of this Agreement and any governing statute, law, regulation, or judicial precedent, the latter shall prevail, but the affected provisions of this Agreement shall be curtailed and\nlimited solely to the extent necessary to bring them within the requirements of law. If any provision of this Agreement is held by a court of competent jurisdiction or in a dispute resolution proceeding to which BNC Bancorp and the Bank\nhave agreed to be subject to be indefinite, invalid, void, voidable, or otherwise unenforceable, the remainder of this Agreement shall continue in full force and effect unless that would clearly be contrary to the intentions of the parties or\nwould result in an injustice.\n4.6 Captions and counterparts. The captions in this Agreement exist solely for convenience. The captions do not define, limit, or describe the scope or intent of this Agreement. This Agreement may be executed in several counterparts,\neach of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.\n4.7 Amendment and waiver. This Agreement may not be amended, released, discharged, abandoned, changed, or modified except by an instrument in writing signed by each of the parties hereto. The failure of any party hereto to enforce\nat any time any of the provisions of this Agreement shall not be construed to be a waiver of any such provision, nor affect the validity of this Agreement or any part thereof or the right of any party to enforce each and every provision. No\nwaiver or any breach of this Agreement shall be held to be a waiver of any other or subsequent breach.\nIN WITNESS WHEREDF, the pam'es have caused this Agreement to be duly executed as of the date fiIst mitten above.\nEXECUTIVE BNC BANEORP\nls/ Ralph N‘ Strayhom 111 By:\nW1) ‘ y om\nI13:\nBANK OF NORTH CAROLINA\nBy:\n113:\n/s/ WI Swope Montgomer, Jr.\nPIesident and CEO\nls/ WI Swope Montgomer, Jr.\nPIesident and CEO	Exhibit B\nNONCOMPETITION AGREEMENT\nThis NONCOMPETITION AGREEMENT (this 'Agreement") is entered into as of this 16th day of June, 2008 by and among BNC Bancorp, a North Carolina corporation Bank of North Carolina, a North Carolina-chartered bank and wholly\nowned subsidiary of BNC Bancorp (the "Bank") and Ralph N. Strayhom III (the "Executive").\nWHEREAS, the Executive's service as an officer and director of BNC Bancorp and the Bank is terminating on June 16, 2008,\nWHEREAS the Executive possesses skills of a special, unique, and unusual character, which therefore have distinctive value,\nWHEREAS, the Executive is familiar with BNC Bancorp's and the Bank's business operations, and properties, and during the time the Executive has been employed by the Bank he has accumulated extensive banking experience and he\nhas established valuable business and client contacts in the market areas served by BNC Bancorp and the Bank,\nWHEREAS, the Executive entered into an employment agreement with BNC Bancorp and the Bank providing for payment of severance benefits after termination of the Executive's employment, conditioned upon the Executive first\nentering into this Agreement, and\nWHEREAS, the Executive's employment has terminated or terminates effective June 16, 2008, and severance benefits therefore will become payable under his employment agreement after execution of this Agreement.\nNow THEREFORE in consideration of these premises the mutual covenants contained herein, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows.\nARTICLE 1\nAGREEMENT NoT TO COMPETE\n1.1\nNoncompetition (a) Agreement not to compete The Executive hereby agrees that unti June 16, 2010 he shall not directly or indirectly, whether for his own account or for the account of any other person, firm, corporation, or other\nbusiness organization\n(1) engage as an employee, officer, director, manager, salesperson, consultant, independent contractor, representative, or other agent in providing Banking Services (as defined below) on behalf of any other person, firm, corporation, or\nother business organization that is a competitor of the Bank or its Affiliates (as defined below) in Davidson County any counties contiguous thereto, any counties in which the Bank or any of its Affiliates has an office, or any counties\nfrom which the Bank or any of its affiliates derives revenue that, in the sole judgement of the Bank, is significant\n(2) provide Banking Services to any Client (as defined below),\n(3) make any statement or take any actions that in the sole judgement of the Bank, interfere with the Bank's or its Affiliates' business relationships with any Client, including but not limited to any statements that are harmful to the\nreputation of the Bank or any of its Affiliates or their standing in the communities they serve,\n(4) except on behalf of the Bank or its Affiliates as may be requested by the Bank, make contact either directly or indirectly with any Client, nor shall the Executive otherwise induce or encourage any Client to enter into any business\nrelationship with any person, firm, corporation, or other business organization other than the Bank or its Affiliates relating to Banking Services or banking business of any type\n(5) entice or encourage any person employed by or associated with the Bank or its Affiliates as an employee, officer, director, manager, salesperson, consultant, independent contractor, representative, or other agent to serve as an\nemployee, officer, director, manager, salesperson, consultant independent contractor, representative, or other agent of any person firm, corporation, or other business organization other than the Bank or its Affiliates, or\n(6) take any actions interfering with the Bank's or its Affiliates' property rights in lists of clients, or otherwise diminish the value of such lists to the Bank or its Affiliates.\n(b)\nDefinition of Affiliate. For purposes of this Agreement, the term "Affiliate" means any entity, corporation, or other business organization controlled by the Bank, controlling the Bank, or under common control with the Bank including\nbut not limited to any subsidiaries of the Bank any company controlling the Bank, or any company under common control with the Bank\n(c) Definition of Banking Services. For purposes of this Agreement, the term "Banking Services" means retail or commercial banking business and all other services customarily provided by banks or otherwise provided by the Bank\nor\nits\nAffiliates; provided, however that the term Banking Services specifically excludes asset and trust management, wealth management, and investment services. The Bank understands that the Executive intends after termination of his\nemployment with the Bank to engage in the business of providing asset and trust management, wealth management, and investment services and that the Executive may do so in markets in which the Bank conducts business and\nto\ncustomers that are or may be Clients of the Bank.\n(d)\nDefinition of Client. For purposes of this Agreement the term "Client" means all persons, firs, corporations, entities, or business organizations who are or were customers or clients of the Bank or any of its Affiliates\n(1) on the date of this Agreement,\n(2) on the date the Executive's termination from active service with the Bank becomes effective,\n(3) at any time during the two year period before the Executive's termination from active service with the Bank becomes effective, and\n(4) any persons who become clients of the Bank or any of its Affiliates hereafter who were identified by a representative of the Bank or its Affiliates, but only if those persons are identified as prospective clients in writing by the Bank to\nthe Executive when the Executive's termination from active service becomes effective.\n1.2 Period of time and scope The Executive acknowledges and agrees that the duration and scope of the noncompetition provision set forth in section 1.1 are reasonable and necessary to protec the legitimate business interests of\nBNC\nBancorp and the Bank and that they do not interfere unduly with the Executive's personal or economic freedoms. The Executive acknowledges that his willingness to execute and comply with this Agreement was an essential condition to\nBNC Bancorp's and the Bank's willingness to enter into the separate employment agreement with the Executive. If a court of competent jurisdiction or a dispute resolution proceeding authorized hereunder and to which BNC Bancorp and\nthe Bank have agreed to be subject nevertheless holds that the duration or scope, including but not limited to geographic scope, of this Agreement is unreasonable, invalid, or unenforceable, the duration or scope shall be reduced or\nreformed to the extent necessary so that section 1.1 may be enforced by BNC Bancorp and the Bank during such period and for such scope as are held to be reasonable, valid, and enforceable.\n1.3 Understandings. It is understood by and between the parties hereto that the Executive's covenants in section 1.1 are an essential element of this Agreement and that, but for the agreement of the Executive to comply with such\ncovenants, BNC Bancorp and the Bank would not have entered into the Separation A greement and Full and Final Release of Claims with the Executive. BNC Bancorp and the Bank and the Executive have independently consulted with or\nhave had the opportunity to independently consult with their respective counsel concerning the reasonableness and validity of such covenants.\nARTICLE 2\nCONFIDENTIALITY\n2.1 Nondisclosure The Executive shall not reveal to any person, firm, corporation, or other business organization any confidentia information of any nature concerning the Bank or its Affiliates, their business, or anything connected\ntherewith. As used in this Article 2, the term "confidential information" means all of the Bank's and its ffiliates' confidential and proprietary information and trade secrets in existence on the date hereof or at any time during the term of\nthis Agreement, including but not limited to\n(a) the whole or any portion or phase of any business plans, financial inforation, purchasing data supplier data, accounting data, or other financial information\n(b) the whole or any portion or phase of any research and development information, design procedures algorithms, or processes, or other technical information,\n(c) the whole or any portion or phase of any marketing or sales information, sales records, customer lists or client lists, prices, sales projections, or other sales information and\n(d) trade secrets, as defined from time to time by the laws of the State of North Carolina.\nNotwithstanding the foregoing, confidential information excludes information that as of the date hereof or at any time after the date hereof is published or disseminated without obligation of confidence or that becomes a part of the\npublic domain (x) by or through action of the Bank or its Affiliates, and (y) otherwise than by or at the direction of the Executive. This section 2.1 does not prohibit disclosure required by an order of a court having jurisdiction or\na\nsubpoena from an appropriate governmental agency\n2.2\nReturn of materials. The Executive agrees to deliver or return to the Bank all written confidential information fumished by the Bank or its Affiliates or prepared by the Executive in connection with his services to the Bank. The\nExecutive shall retain no copies thereof after termination of this Agreement or termination of the Executive's employment with the Bank.\n2.3 Injunctive relief The Executive acknowledges that it is impossible to measure in money the damages that will accrue to BNC Bancorp and the Bank if the Executive fails to observe the obligations imposed on him by this Article 2.\nAccordingly, if BNC Bancorp or the Bank institutes an action to enforce the provisions hereof, the Executive hereby waives the claim or defense that an adequate remedy at law is available to BNC Bancorp or the Bank, and the Executive\nagrees not to urge in any such action the claim or defense that an adequate remedy at law exists.\n2.4\nSurvival of common law protection. During and after the term of this Agreement, in addition to the protection thereof given by this Agreement the confidential information of the Bank and its Affiliates shall be entitled to all such\nprotections as may be available under applicable law and the Bank and its Affiliates may seek to enforce any of its rights with respect thereto.\n2.5 Creative work The Executive agrees that all creative work and work product, including but not limited to all technology, business management tools, processes, software, patents, trademarks, and copyrights developed by\nthe\nExecutive during the term of the employment agreement, regardless of when or where such work or work product was produced, constitutes work made for hire, all rights of which are owned by BNC Bancorp and the Bank. The Executive\nhereby assigns to BNC Bancorp and to the Bank all rights, title, and interest, whether copyright, trade secret trademark, patent, or otherwise, in all such work or work product, regardless of whether the same is subject to protection\nby\npatent, trademark, or copyright laws.\n2.6 Rights and obligations survive termination of this Agreement. The rights and obligations set forth in this Article 2 shall survive termination of this Agreement.\nARTICLE 3\nSPECIFIC PERFORMANCE\nThe Executive's covenants contained in Articles 1 and 2 shall survive termination of the Executive's employment with the Bank for any reason, and shall be enforceable after such termination. Without intending to limit the remedies\navailable to BNC Bancorp and the Bank, the Executive agrees that damages at law are an insufficient remedy for violation by the Executive of his covenants contained in this Agreement. Accordingly, the Executive hereby agrees that\neither or both of BNC Bancorp or the Bank may apply for and is entitled to injunctive relief in any court of competent jurisdiction to restrain the breach or threatened breach of, or otherwise to specifically enforce, any of the covenants of\nsuch Articles, in each case without proof of actual damages, in addition to any other remedies that may be available under applicable law. The Executive hereby waives the claim or defense that an adequate remedy at law is available to\nBNC\nBancorp or the Bank, and the Executive agrees not to urge in any action or proceeding the claim or defense that an adequate remedy at law exists.\nWithout limiting the generality of the foregoing, without limiting the remedies available to BNC Bancorp or the Bank for violation of this Agreement, and without constituting an election of remedies, if the Executive violates any of the\nterms of Articles 1 or 2 he shall forfei on his own behalf and that of his beneficiary(ies) any rights to and interest in any severance or other benefits under the Separation Agreement and Full and Final Release of Claims and the Separation\nAgreement and Full and Final Release of Claims shal thereafter be null, void, and of no further force or effect\nARTICLE 4\nMISCELLANEOUS\n4.1 Successors and assigns Without written consent of the other party, neither BNC Bancorp and the Bank nor the Executive shall assign transfer, or delegate this Agreement or any rights or obligations under this Agreement except as\nexpressly provided herein. However, any merger or consolidation of the Bank (or any direc or indirect parent thereof) or any sale or transfer of all or substantially all of the stock or assets of the Bank (or any direct or indirect parent\nthereof) shall be considered an assignment expressly agreed to and consistent with the terms of this Agreement and shall not be considered a violation of this A greement.\nThis Agreement shal be binding upon the parties hereto and their heirs, personal representatives, successors, and permitted assigns. This Agreement shall inure to the benefit of and be enforceable by the Executive's personal or legal\nrepresentatives, executors administrators, successors, heirs distributees, and legatees.\n4.2 Governing law. This greement shall be construed under and governed by the internal laws of the State of North Carolina without giving effect to any choice of law or conflict of law provision or rule (whether of the State of North\nCarolina or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of North Carolina.\n4.3 Entire agreement. This Agreement as well as the Separation greement of even date and this documents referenced therein at Section 7.3(a), set forth the entire agreement of the parties with respect to the subject matter and any ora\nor written statements, representations, agreements, or understandings not set forth in this Agreement that were made or entered into prior to or contemporaneously with the execution of this Agreement are hereby rescinded, revoked, and\nrendered null and void by the parties.\n4.4 Notices. Any notice required or permitted under this Agreement shall be deemed to have been effectively made or given if in writing and personally delivered delivered by mail properly addressed in a sealed envelope, postage prepaid\nby certified or registered mail, delivered by a reputable ovemight delivery service, or sent by facsimile. Unless otherwise changed by notice, notice shall be properly addressed to the Executive if addressed to 2201 Rhododendron Court,\nCharlotte, North Carolina 28205, and properly addressed to BNC Bancorp or the Bank if addressed to BNC Bancorp, 831 Julian A venue, Thomasville, North Carolina 27361-1148, A ttention: Corporate Secretary.\n4.5 Severability. In the case of conflict between any provision of this Agreement and any governing statute, law, regulation, or judicial precedent, the latter shall prevail, but the affected provisions of this Agreement shall be curtailed and\nlimited solely to the extent necessary to bring them within the requirements of law. If any provision of this Agreement is held by a court of competent jurisdiction or in a dispute resolution proceeding to which BNC Bancorp and the Bank\nhave agreed to be subject to be indefinite, invalid, void, voidable, or otherwise unenforceable, the remainder of this Agreement shall continue in full force and effect unless that would clearly be contrary to the intentions of the parties or\nwould resul in an injustice.\n4.6 Captions and counterparts The captions in this A greement exist solely for convenience. The captions do not define, limit, or describe the scope or intent of this Agreement. This Agreement may be executed in several counterparts,\neach of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.\n4.7 Amendment and waiver This Agreement may no be amended, released discharged, abandoned, changed, or modified except by an instrument in writing signed by each of the parties hereto. The failure of any party hereto to enforce\nat any time any of the provisions of this Agreement shall not be construed to be a waiver of any such provision, nor affect the validity of this greement or any part thereof or the right of any party to enforce each and every provision\nNo\nwaiver or any breach of this Agreement shall be held to be a waiver of any other or subsequent breach.\nIN WITNess WHEREOF, the parties have caused this Agreement to be duly executed as of the date first written above.\nExECUTIve\nBNC BANCORP\n/s/ Ralph N. Strayhom III\nBy:\nIs/ W Swope Montgomery, Jr.\nKalph N. Strayhor TII\nIts:\nPresident and CEO\nBANK OF NORTH CAROLINA\nBy:\n/s/ W. Swope Montgomery, Jr.\nIts:\nPresident and CEO	Exhibit B\nNONCOMPETITION AGREEMENT\nThis NONCOMPETITION AGREEMENT (this “Agreement”) is entered into as of this 16th day of June, 2008, by and among BNC Bancorp, a North Carolina corporation, Bank of North Carolina, a North Carolina-chartered bank and wholly\nowned subsidiary of BNC Bancorp (the “Bank”), and Ralph N. Strayhorn III (the “Executive”).\nWHEREAS, the Executive’s service as an officer and director of BNC Bancorp and the Bank is terminating on June 16, 2008,\nWHEREAS, the Executive possesses skills of a special, unique, and unusual character, which therefore have distinctive value,\nWHEREAS, the Executive is familiar with BNC Bancorp’s and the Bank’s business, operations, and properties, and during the time the Executive has been employed by the Bank he has accumulated extensive banking experience and he\nhas established valuable business and client contacts in the market areas served by BNC Bancorp and the Bank,\nWHEREAS, the Executive entered into an employment agreement with BNC Bancorp and the Bank providing for payment of severance benefits after termination of the Executive’s employment, conditioned upon the Executive first\nentering into this Agreement, and\nWHEREAS, the Executive’s employment has terminated or terminates effective June 16, 2008, and severance benefits therefore will become payable under his employment agreement after execution of this Agreement.\nNOW THEREFORE, in consideration of these premises, the mutual covenants contained herein, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows.\nARTICLE 1\nAGREEMENT NOT TO COMPETE\n1.1 Noncompetition. (a) Agreement not to compete. The Executive hereby agrees that until June 16, 2010 he shall not directly or indirectly, whether for his own account or for the account of any other person, firm, corporation, or other\nbusiness organization –\n(1) engage as an employee, officer, director, manager, salesperson, consultant, independent contractor, representative, or other agent in providing Banking Services (as defined below) on behalf of any other person, firm, corporation, or\nother business organization that is a competitor of the Bank or its Affiliates (as defined below) in Davidson County, any counties contiguous thereto, any counties in which the Bank or any of its Affiliates has an office, or any counties\nfrom which the Bank or any of its affiliates derives revenue that, in the sole judgement of the Bank, is significant,\n(2) provide Banking Services to any Client (as defined below),\n(3) make any statement or take any actions that, in the sole judgement of the Bank, interfere with the Bank’s or its Affiliates’ business relationships with any Client, including but not limited to any statements that are harmful to the\nreputation of the Bank or any of its Affiliates or their standing in the communities they serve,\n(4) except on behalf of the Bank or its Affiliates as may be requested by the Bank, make contact either directly or indirectly with any Client, nor shall the Executive otherwise induce or encourage any Client to enter into any business\nrelationship with any person, firm, corporation, or other business organization other than the Bank or its Affiliates relating to Banking Services or banking business of any type,\n(5) entice or encourage any person employed by or associated with the Bank or its Affiliates as an employee, officer, director, manager, salesperson, consultant, independent contractor, representative, or other agent to serve as an\nemployee, officer, director, manager, salesperson, consultant, independent contractor, representative, or other agent of any person, firm, corporation, or other business organization other than the Bank or its Affiliates, or\n(6) take any actions interfering with the Bank’s or its Affiliates’ property rights in lists of clients, or otherwise diminish the value of such lists to the Bank or its Affiliates.\n(b) Definition of Affiliate. For purposes of this Agreement, the term “Affiliate” means any entity, corporation, or other business organization controlled by the Bank, controlling the Bank, or under common control with the Bank, including\nbut not limited to any subsidiaries of the Bank, any company controlling the Bank, or any company under common control with the Bank.\n(c) Definition of Banking Services. For purposes of this Agreement, the term “Banking Services” means retail or commercial banking business, and all other services customarily provided by banks or otherwise provided by the Bank or its\nAffiliates; provided, however that the term Banking Services specifically excludes asset and trust management, wealth management, and investment services. The Bank understands that the Executive intends after termination of his\nemployment with the Bank to engage in the business of providing asset and trust management, wealth management, and investment services and that the Executive may do so in markets in which the Bank conducts business and to\ncustomers that are or may be Clients of the Bank.\n(d) Definition of Client. For purposes of this Agreement the term “Client” means all persons, firms, corporations, entities, or business organizations who are or were customers or clients of the Bank or any of its Affiliates –\n(1) on the date of this Agreement,\n(2) on the date the Executive’s termination from active service with the Bank becomes effective,\n(3) at any time during the two-year period before the Executive’s termination from active service with the Bank becomes effective, and\n(4) any persons who become clients of the Bank or any of its Affiliates hereafter who were identified by a representative of the Bank or its Affiliates, but only if those persons are identified as prospective clients in writing by the Bank to\nthe Executive when the Executive’s termination from active service becomes effective.\n1.2 Period of time and scope. The Executive acknowledges and agrees that the duration and scope of the noncompetition provision set forth in section 1.1 are reasonable and necessary to protect the legitimate business interests of BNC\nBancorp and the Bank and that they do not interfere unduly with the Executive’s personal or economic freedoms. The Executive acknowledges that his willingness to execute and comply with this Agreement was an essential condition to\nBNC Bancorp’s and the Bank’s willingness to enter into the separate employment agreement with the Executive. If a court of competent jurisdiction or a dispute resolution proceeding authorized hereunder and to which BNC Bancorp and\nthe Bank have agreed to be subject nevertheless holds that the duration or scope, including but not limited to geographic scope, of this Agreement is unreasonable, invalid, or unenforceable, the duration or scope shall be reduced or\nreformed to the extent necessary so that section 1.1 may be enforced by BNC Bancorp and the Bank during such period and for such scope as are held to be reasonable, valid, and enforceable.\n1.3 Understandings. It is understood by and between the parties hereto that the Executive’s covenants in section 1.1 are an essential element of this Agreement and that, but for the agreement of the Executive to comply with such\ncovenants, BNC Bancorp and the Bank would not have entered into the Separation Agreement and Full and Final Release of Claims with the Executive. BNC Bancorp and the Bank and the Executive have independently consulted with or\nhave had the opportunity to independently consult with their respective counsel concerning the reasonableness and validity of such covenants.\nARTICLE 2\nCONFIDENTIALITY\n2.1 Nondisclosure. The Executive shall not reveal to any person, firm, corporation, or other business organization any confidential information of any nature concerning the Bank or its Affiliates, their business, or anything connected\ntherewith. As used in this Article 2, the term “confidential information” means all of the Bank’s and its Affiliates’ confidential and proprietary information and trade secrets in existence on the date hereof or at any time during the term of\nthis Agreement, including but not limited to –\n(a) the whole or any portion or phase of any business plans, financial information, purchasing data, supplier data, accounting data, or other financial information,\n(b) the whole or any portion or phase of any research and development information, design procedures, algorithms, or processes, or other technical information,\n(c) the whole or any portion or phase of any marketing or sales information, sales records, customer lists or client lists, prices, sales projections, or other sales information, and\n(d) trade secrets, as defined from time to time by the laws of the State of North Carolina.\nNotwithstanding the foregoing, confidential information excludes information that – as of the date hereof or at any time after the date hereof – is published or disseminated without obligation of confidence or that becomes a part of the\npublic domain (x) by or through action of the Bank or its Affiliates, and (y) otherwise than by or at the direction of the Executive. This section 2.1 does not prohibit disclosure required by an order of a court having jurisdiction or a\nsubpoena from an appropriate governmental agency.\n2.2 Return of materials. The Executive agrees to deliver or return to the Bank all written confidential information furnished by the Bank or its Affiliates or prepared by the Executive in connection with his services to the Bank. The\nExecutive shall retain no copies thereof after termination of this Agreement or termination of the Executive’s employment with the Bank.\n2.3 Injunctive relief. The Executive acknowledges that it is impossible to measure in money the damages that will accrue to BNC Bancorp and the Bank if the Executive fails to observe the obligations imposed on him by this Article 2.\nAccordingly, if BNC Bancorp or the Bank institutes an action to enforce the provisions hereof, the Executive hereby waives the claim or defense that an adequate remedy at law is available to BNC Bancorp or the Bank, and the Executive\nagrees not to urge in any such action the claim or defense that an adequate remedy at law exists.\n2.4 Survival of common law protection. During and after the term of this Agreement, in addition to the protection thereof given by this Agreement the confidential information of the Bank and its Affiliates shall be entitled to all such\nprotections as may be available under applicable law and the Bank and its Affiliates may seek to enforce any of its rights with respect thereto.\n2.5 Creative work. The Executive agrees that all creative work and work product, including but not limited to all technology, business management tools, processes, software, patents, trademarks, and copyrights developed by the\nExecutive during the term of the employment agreement, regardless of when or where such work or work product was produced, constitutes work made for hire, all rights of which are owned by BNC Bancorp and the Bank. The Executive\nhereby assigns to BNC Bancorp and to the Bank all rights, title, and interest, whether copyright, trade secret, trademark, patent, or otherwise, in all such work or work product, regardless of whether the same is subject to protection by\npatent, trademark, or copyright laws.\n2.6 Rights and obligations survive termination of this Agreement. The rights and obligations set forth in this Article 2 shall survive termination of this Agreement.\nARTICLE 3\nSPECIFIC PERFORMANCE\nThe Executive’s covenants contained in Articles 1 and 2 shall survive termination of the Executive’s employment with the Bank for any reason, and shall be enforceable after such termination. Without intending to limit the remedies\navailable to BNC Bancorp and the Bank, the Executive agrees that damages at law are an insufficient remedy for violation by the Executive of his covenants contained in this Agreement. Accordingly, the Executive hereby agrees that\neither or both of BNC Bancorp or the Bank may apply for and is entitled to injunctive relief in any court of competent jurisdiction to restrain the breach or threatened breach of, or otherwise to specifically enforce, any of the covenants of\nsuch Articles, in each case without proof of actual damages, in addition to any other remedies that may be available under applicable law. The Executive hereby waives the claim or defense that an adequate remedy at law is available to\nBNC Bancorp or the Bank, and the Executive agrees not to urge in any action or proceeding the claim or defense that an adequate remedy at law exists.\nWithout limiting the generality of the foregoing, without limiting the remedies available to BNC Bancorp or the Bank for violation of this Agreement, and without constituting an election of remedies, if the Executive violates any of the\nterms of Articles 1 or 2 he shall forfeit on his own behalf and that of his beneficiary(ies) any rights to and interest in any severance or other benefits under the Separation Agreement and Full and Final Release of Claims and the Separation\nAgreement and Full and Final Release of Claims shall thereafter be null, void, and of no further force or effect.\nARTICLE 4\nMISCELLANEOUS\n4.1 Successors and assigns. Without written consent of the other party, neither BNC Bancorp and the Bank nor the Executive shall assign, transfer, or delegate this Agreement or any rights or obligations under this Agreement except as\nexpressly provided herein. However, any merger or consolidation of the Bank (or any direct or indirect parent thereof) or any sale or transfer of all or substantially all of the stock or assets of the Bank (or any direct or indirect parent\nthereof) shall be considered an assignment expressly agreed to and consistent with the terms of this Agreement and shall not be considered a violation of this Agreement.\nThis Agreement shall be binding upon the parties hereto and their heirs, personal representatives, successors, and permitted assigns. This Agreement shall inure to the benefit of and be enforceable by the Executive’s personal or legal\nrepresentatives, executors, administrators, successors, heirs, distributees, and legatees.\n4.2 Governing law. This Agreement shall be construed under and governed by the internal laws of the State of North Carolina, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of North\nCarolina or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of North Carolina.\n4.3 Entire agreement. This Agreement, as well as the Separation Agreement of even date and this documents referenced therein at Section 7.3(a), set forth the entire agreement of the parties with respect to the subject matter and any oral\nor written statements, representations, agreements, or understandings not set forth in this Agreement that were made or entered into prior to or contemporaneously with the execution of this Agreement are hereby rescinded, revoked, and\nrendered null and void by the parties.\n4.4 Notices. Any notice required or permitted under this Agreement shall be deemed to have been effectively made or given if in writing and personally delivered, delivered by mail properly addressed in a sealed envelope, postage prepaid\nby certified or registered mail, delivered by a reputable overnight delivery service, or sent by facsimile. Unless otherwise changed by notice, notice shall be properly addressed to the Executive if addressed to 2201 Rhododendron Court,\nCharlotte, North Carolina 28205, and properly addressed to BNC Bancorp or the Bank if addressed to BNC Bancorp, 831 Julian Avenue, Thomasville, North Carolina 27361-1148, Attention: Corporate Secretary.\n4.5 Severability. In the case of conflict between any provision of this Agreement and any governing statute, law, regulation, or judicial precedent, the latter shall prevail, but the affected provisions of this Agreement shall be curtailed and\nlimited solely to the extent necessary to bring them within the requirements of law. If any provision of this Agreement is held by a court of competent jurisdiction or in a dispute resolution proceeding to which BNC Bancorp and the Bank\nhave agreed to be subject to be indefinite, invalid, void, voidable, or otherwise unenforceable, the remainder of this Agreement shall continue in full force and effect unless that would clearly be contrary to the intentions of the parties or\nwould result in an injustice.\n4.6 Captions and counterparts. The captions in this Agreement exist solely for convenience. The captions do not define, limit, or describe the scope or intent of this Agreement. This Agreement may be executed in several counterparts,\neach of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.\n4.7 Amendment and waiver. This Agreement may not be amended, released, discharged, abandoned, changed, or modified except by an instrument in writing signed by each of the parties hereto. The failure of any party hereto to enforce\nat any time any of the provisions of this Agreement shall not be construed to be a waiver of any such provision, nor affect the validity of this Agreement or any part thereof or the right of any party to enforce each and every provision. No\nwaiver or any breach of this Agreement shall be held to be a waiver of any other or subsequent breach.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first written above.\nEXECUTIVE\nBNC BANCORP\n/s/ Ralph N. Strayhorn III\nBy:\n/s/ W. Swope Montgomery, Jr.\nRalph N. Strayhorn III\nIts:\nPresident and CEO\nBANK OF NORTH CAROLINA\nBy:\n/s/ W. Swope Montgomery, Jr.\nIts:\nPresident and CEO
+d004bf3b592014a54cea588a24257068.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 11 dex99d3.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (the “Agreement”) is made as of March 12, 2008 (the “Effective Date”) by and between Kikkoman\nCorporation (“Kikkoman”), a Japanese corporation and Allergy Research Group, Inc. (“Company”), a Florida corporation.\nRecitals\nA. The parties wish to explore a possible business opportunity of mutual interest (“Business Relationship”) which may involve the disclosure\nby each party (the “Disclosing Party”) to the other party (the “Receiving Party”) of confidential and proprietary information regarding product\ninformation, technical data and other information which is owned by the Disclosing Party, its affiliates or third parties to which the Disclosing Party\nhas obligations regarding the protection of such information.\nB. As a condition to each Disclosing Party’s release of such confidential and proprietary information, the parties wish to enter into this\nAgreement.\nAgreement\nNOW, THEREFORE, in consideration of the mutual promises herein, the parties agree as follows:\n1. Confidential Information. For purposes of this Agreement, “Confidential Information” means all nonpublic information concerning or\nowned by Disclosing Party including, but not limited to, all tangible, intangible, visual, electronic, present or future information such as but not\nlimited to: (a) all intellectual property, including but not limited to patents and patent applications, and trade secrets; (b) financial information or\npersonnel matters relating to products, employees, investors or business; (c) technical information, including research, procedures, processes,\nspecifications, designs, development, data and know-how; (d) business information, including operations, planning, marketing interests, products\n(including product formulations and test data), and client and distributor lists; (e) the terms of any agreement to which Disclosing Party is a party;\n(f) discussions, negotiations or proposals related to agreements; and (g) or any other item of Confidential Information, including but not limited to all\nwritings, illustrations, photographs or other information which Disclosing Party deems to be proprietary or confidential. Confidential Information\nincludes all notes, analyses, compilations, studies, interpretations or other materials prepared by the Disclosing Party or its representatives to the\nextent such materials contain or are based on the Confidential Information furnished to the Receiving Party pursuant to this Agreement. All such\nConfidential Information shall be subject to the terms of this Agreement whether marked as “Confidential” or not and whether disclosed orally,\nelectronically, in writing or other media.\n2. Exclusions. Notwithstanding the foregoing, Confidential Information shall not include any information, however designated, which the\nReceiving Party can show (a) is or has become generally available in the public without breach of this Agreement by the Receiving Party,\n(b) became known to the Receiving Party prior to disclosure to the Receiving Party by the Disclosing Party, (c) was received from a third party\nwithout breach of any nondisclosure obligations to the Disclosing Party or otherwise in violation of the Disclosing Party’s rights, or (d) was\ndeveloped by the Receiving Party independently of any Confidential Information received from the Disclosing Party.\n3. Obligations Regarding Confidential Information. The Receiving Party (a) shall restrict disclosure of Confidential Information solely to\nemployees or consultants on a need to know basis provided such employees and/or consultants have executed appropriate written agreements with\nthe Receiving Party to enable Receiving Party to comply with all provisions of this Agreement, (b) shall protect the Confidential Information with at\nleast the same degree of care and confidentiality as it affords its own confidential information, at all times exercising at least a reasonable degree of\ncare in such protection, and (c) shall not use any Confidential Information in any manner except in furtherance of Receiving Party’s business\nrelationship with Disclosing party, or as otherwise agreed by the Disclosing Party in writing. In addition, with respect to any product or formulation\ndelivered to the Receiving Party by the Disclosing Party, the Receiving Party shall not reverse engineer, dissect, disassemble, decompile or otherwise\nanalyze the physical or chemical construction of any such Confidential Information except as\n1\nnecessary to the evaluation of the Business Relationship. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information\npursuant to an order of a court or governmental agency as so required by such order, provided that the Receiving Party shall first notify the\nDisclosing Party of such order and afford the Disclosing Party the opportunity to seek a protective order relating to such disclosure. The Receiving\nParty agrees to notify the Disclosing Party immediately if it learns of any use or disclosure of any Disclosing Party Confidential Information in\nviolation of the terms of this Agreement. With respect to any material nonpublic information of any Disclosing Party subject to regulation by the\nU.S . Securities & Exchange Commission (“SEC”), the Receiving Party agrees that it will comply with SEC Regulation FD (Fair Disclosure), as\namended, and will refrain from trading in the Disclosing Party’s stock until that nonpublic information is either publicly disseminated or deemed\nimmaterial by the Disclosing Party.\n4. Term. The term of this Agreement shall commence on the Effective Date and shall terminate three (3) years thereafter, provided that all\nobligations hereunder with respect to disclosures of Confidential Information during the term hereof shall survive termination for a period of two\n(2) years from date of disclosure.\n5. Title and Proprietary Rights. Notwithstanding the disclosure of any Confidential Information by the Disclosing Party to the Receiving\nParty, the Disclosing Party shall retain title and all intellectual property and proprietary rights thereto, and the Receiving Party will have no rights, by\nlicense or otherwise, to use the Confidential Information except as expressly provided herein. The Receiving Party shall not alter or obliterate any\ntrademark, trademark notice, copyright notice, confidentiality notice or any notice of any other proprietary right of the Disclosing Party on any copy\nof Confidential Information, and shall reproduce any such mark or notice on all copies of such Confidential Information.\n6. Return of Confidential Information. The Receiving Party shall promptly return all tangible material embodying Confidential Information\n(in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information) upon the earlier of (a) the expiration\nof this Agreement, (b) the earlier written termination of the dealings between the Disclosing Party and the Receiving Party, and (c) the Disclosing\nParty’s written request.\n7. Injunctive Relief. The parties acknowledge that monetary damages may not be sufficient for unauthorized disclosure by the Receiving\nParty of Confidential Information, and that the Disclosing Party shall be entitled, without waiving any other rights or remedies, to seek injunctive or\nequitable relief as may be deemed proper by a court of proper jurisdiction.\n8. Limited Relationship. This Agreement will not create a joint venture, partnership or other formal business relationship or entity of any\nkind, or an obligation to form any such relationship or entity. Each party shall bear all costs and expenses incurred by it in complying with this\nAgreement.\n9. Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, and each party consents to\nthe jurisdiction of the courts in the State of California, County of Alameda. The prevailing party in any suit brought to enforce rights under this\nAgreement shall be entitled to receive reasonable attorneys’ fees.\n10. General. In the event that one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or\nunenforceable in any respect, then to the maximum extent permitted by law, the remaining provisions of this Agreement shall remain in full force\nand effect. Any waiver, express or implied, by any party of any of its rights arising under this Agreement must be in writing and shall not constitute\nor be deemed a waiver of any other right hereunder, whether of a similar or dissimilar nature. This Agreement shall be binding upon and inure to the\nbenefit of the parties hereto and their respective successors and assigns.\n11. Entire Agreement; Counterparts. This Agreement constitutes the entire agreement between the parties relating to the Purpose, and\nsupercedes all prior discussions between the parties relating thereto. No amendment or modification of this Agreement shall be valid or binding on\nthe parties unless in writing and signed by each party’s authorized representative. This Agreement may be executed in two or more counterparts,\neach of which shall be considered an original, and all of which together shall constitute one and the same instrument. Each party agrees that the\ndelivery of this Agreement via facsimile shall be deemed effective delivery.\n2\nIN WITNESS WHEREOF, the parties hereto have executed this Mutual Nondisclosure Agreement as of the Effective Date.\nAllergy Research Group, Inc.\nKikkoman Corporation\nBy: /s/ Manfred Salomon\nBy: /s/ Mitsuo Someya\nSignature\nSignature\nName: Manfred Salomon\nName: Mitsuo Someya\nRepresentative Director\nTitle: President\nTitle: Senior Executive Corporate Officer\n3	EX-99.(D)(3) 11 dex99d3.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (the “Agreement™) is made as of March 12, 2008 (the “Effective Date”) by and between Kikkoman\nCorporation (“Kikkoman™), a Japanese corporation and Allergy Research Group, Inc. (“Company”), a Florida corporation.\nRecitals\nA. The parties wish to explore a possible business opportunity of mutual interest (“Business Relationship”) which may involve the disclosure\nby each party (the “Disclosing Party”) to the other party (the “Receiving Party”) of confidential and proprietary information regarding product\ninformation, technical data and other information which is owned by the Disclosing Party, its affiliates or third parties to which the Disclosing Party\nhas obligations regarding the protection of such information.\nB. As a condition to each Disclosing Party’s release of such confidential and proprietary information, the parties wish to enter into this\nAgreement.\nAgreement\nNOW, THEREFORE, in consideration of the mutual promises herein, the parties agree as follows:\n1. Confidential Information. For purposes of this Agreement, “Confidential Information” means all nonpublic information concerning or\nowned by Disclosing Party including, but not limited to, all tangible, intangible, visual, electronic, present or future information such as but not\nlimited to: (a) all intellectual property, including but not limited to patents and patent applications, and trade secrets; (b) financial information or\npersonnel matters relating to products, employees, investors or business; (c) technical information, including research, procedures, processes,\nspecifications, designs, development, data and know-how; (d) business information, including operations, planning, marketing interests, products\n(including product formulations and test data), and client and distributor lists; (e) the terms of any agreement to which Disclosing Party is a party;\n(f) discussions, negotiations or proposals related to agreements; and (g) or any other item of Confidential Information, including but not limited to all\nwritings, illustrations, photographs or other information which Disclosing Party deems to be proprietary or confidential. Confidential Information\nincludes all notes, analyses, compilations, studies, interpretations or other materials prepared by the Disclosing Party or its representatives to the\nextent such materials contain or are based on the Confidential Information furnished to the Receiving Party pursuant to this Agreement. All such\nConfidential Information shall be subject to the terms of this Agreement whether marked as “Confidential” or not and whether disclosed orally,\nelectronically, in writing or other media.\n2. Exclusions. Notwithstanding the foregoing, Confidential Information shall not include any information, however designated, which the\nReceiving Party can show (a) is or has become generally available in the public without breach of this Agreement by the Receiving Party,\n(b) became known to the Receiving Party prior to disclosure to the Receiving Party by the Disclosing Party, (c) was received from a third party\nwithout breach of any nondisclosure obligations to the Disclosing Party or otherwise in violation of the Disclosing Party’s rights, or (d) was\ndeveloped by the Receiving Party independently of any Confidential Information received from the Disclosing Party.\n3. Obligations Regarding Confidential Information. The Receiving Party (a) shall restrict disclosure of Confidential Information solely to\nemployees or consultants on a need to know basis provided such employees and/or consultants have executed appropriate written agreements with\nthe Receiving Party to enable Receiving Party to comply with all provisions of this Agreement, (b) shall protect the Confidential Information with at\nleast the same degree of care and confidentiality as it affords its own confidential information, at all times exercising at least a reasonable degree of\ncare in such protection, and (c) shall not use any Confidential Information in any manner except in furtherance of Receiving Party’s business\nrelationship with Disclosing party, or as otherwise agreed by the Disclosing Party in writing. In addition, with respect to any product or formulation\ndelivered to the Receiving Party by the Disclosing Party, the Receiving Party shall not reverse engineer, dissect, disassemble, decompile or otherwise\nanalyze the physical or chemical construction of any such Confidential Information except as\n1\nnecessary to the evaluation of the Business Relationship. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information\npursuant to an order of a court or governmental agency as so required by such order, provided that the Receiving Party shall first notify the\nDisclosing Party of such order and afford the Disclosing Party the opportunity to seek a protective order relating to such disclosure. The Receiving\nParty agrees to notify the Disclosing Party immediately if it learns of any use or disclosure of any Disclosing Party Confidential Information in\nviolation of the terms of this Agreement. With respect to any material nonpublic information of any Disclosing Party subject to regulation by the\nU.S. Securities & Exchange Commission (“SEC”), the Receiving Party agrees that it will comply with SEC Regulation FD (Fair Disclosure), as\namended, and will refrain from trading in the Disclosing Party’s stock until that nonpublic information is either publicly disseminated or deemed\nimmaterial by the Disclosing Party.\n4. Term. The term of this Agreement shall commence on the Effective Date and shall terminate three (3) years thereafter, provided that all\nobligations hereunder with respect to disclosures of Confidential Information during the term hereof shall survive termination for a period of two\n(2) years from date of disclosure.\n5. Title and Proprietary Rights. Notwithstanding the disclosure of any Confidential Information by the Disclosing Party to the Receiving\nParty, the Disclosing Party shall retain title and all intellectual property and proprietary rights thereto, and the Receiving Party will have no rights, by\nlicense or otherwise, to use the Confidential Information except as expressly provided herein. The Receiving Party shall not alter or obliterate any\ntrademark, trademark notice, copyright notice, confidentiality notice or any notice of any other proprietary right of the Disclosing Party on any copy\nof Confidential Information, and shall reproduce any such mark or notice on all copies of such Confidential Information.\n6. Return of Confidential Information. The Receiving Party shall promptly return all tangible material embodying Confidential Information\n(in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information) upon the earlier of (a) the expiration\nof this Agreement, (b) the earlier written termination of the dealings between the Disclosing Party and the Receiving Party, and (c) the Disclosing\nParty’s written request.\n7. Injunctive Relief. The parties acknowledge that monetary damages may not be sufficient for unauthorized disclosure by the Receiving\nParty of Confidential Information, and that the Disclosing Party shall be entitled, without waiving any other rights or remedies, to seek injunctive or\nequitable relief as may be deemed proper by a court of proper jurisdiction.\n8. Limited Relationship. This Agreement will not create a joint venture, partnership or other formal business relationship or entity of any\nkind, or an obligation to form any such relationship or entity. Each party shall bear all costs and expenses incurred by it in complying with this\nAgreement.\n9. Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, and each party consents to\nthe jurisdiction of the courts in the State of California, County of Alameda. The prevailing party in any suit brought to enforce rights under this\nAgreement shall be entitled to receive reasonable attorneys’ fees.\n10. General. In the event that one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or\nunenforceable in any respect, then to the maximum extent permitted by law, the remaining provisions of this Agreement shall remain in full force\nand effect. Any waiver, express or implied, by any party of any of its rights arising under this Agreement must be in writing and shall not constitute\nor be deemed a waiver of any other right hereunder, whether of a similar or dissimilar nature. This Agreement shall be binding upon and inure to the\nbenefit of the parties hereto and their respective successors and assigns.\n11. Entire Agreement; Counterparts. This Agreement constitutes the entire agreement between the parties relating to the Purpose, and\nsupercedes all prior discussions between the parties relating thereto. No amendment or modification of this Agreement shall be valid or binding on\nthe parties unless in writing and signed by each party’s authorized representative. This Agreement may be executed in two or more counterparts,\neach of which shall be considered an original, and all of which together shall constitute one and the same instrument. Each party agrees that the\ndelivery of this Agreement via facsimile shall be deemed effective delivery.\n2\nAllergy Research Group, Inc. By:\nName: Manfred Salomon === Title:\nIN WITNESS WHEREOF, the parties hereto have executed this Mutual Nondisclosure Agreement as of the Effective Date. /s/ Manfred Salomon Signature\nPresident Kikkoman Corporation\nBy: /s MitwoSomeya 0000 Signature\nName: Mitsuo Someya\nRepresentative Director Title: Senior Executive Corporate Officer	EX-99.(D)(3) 11 dex99d3.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (the "Agreement") is made as of March 12, 2008 (the "Effective Date") by and between Kikkoman\nCorporation ("Kikkoman"), a Japanese corporation and Allergy Research Group, Inc. ("Company"), a Florida corporation.\nRecitals\nA. The parties wish to explore a possible business opportunity of mutual interest ("Business Relationship") which may involve the disclosure\nby each party (the "Disclosing Party") to the other party (the "Receiving Party") of confidential and proprietary information regarding product\ninformation, technical data and other information which is owned by the Disclosing Party, its affiliates or third parties to which the Disclosing Party\nhas obligations regarding the protection of such information.\nB. As a condition to each Disclosing Party's release of such confidential and proprietary information, the parties wish to enter into this\nAgreement.\nAgreement\nNOW, THEREFORE, in consideration of the mutual promises herein, the parties agree as follows:\n1. Confidential Information. For purposes of this Agreement, "Confidential Information" means all nonpublic information concerning or\nowned by Disclosing Party including, but not limited to, all tangible, intangible, visual, electronic, present or future information such as but not\nlimited to: (a) all intellectual property, including but not limited to patents and patent applications, and trade secrets; (b) financial information or\npersonnel matters relating to products, employees, investors or business; (c) technical information, including research, procedures, processes,\nspecifications,\ndesigns,\ndevelopment,\ndata\nand\nknow-how;\n(d)\nbusiness\ninformation,\nincluding\noperations,\nplanning,\nmarketing\ninterests,\nproducts\n(including product formulations and test data), and client and distributor lists; (e) the terms of any agreement to which Disclosing Party is a party;\n(f) discussions, negotiations or proposals related to agreements; and (g) or any other item of Confidential Information, including but not limited to all\nwritings, illustrations, photographs or other information which Disclosing Party deems to be proprietary or confidential. Confidential Information\nincludes all notes, analyses, compilations, studies, interpretations or other materials prepared by the Disclosing Party or its representatives to the\nextent such materials contain or are based on the Confidential Information furnished to the Receiving Party pursuant to this Agreement. All such\nConfidential Information shall be subject to the terms of this Agreement whether marked as "Confidential" or not and whether disclosed orally,\nelectronically, in writing or other media.\n2. Exclusions. Notwithstanding the foregoing, Confidential Information shall not include any information, however designated, which the\nReceiving Party can show (a) is or has become generally available in the public without breach of this Agreement by the Receiving Party,\n(b) became known to the Receiving Party prior to disclosure to the Receiving Party by the Disclosing Party, (c) was received from a third party\nwithout breach of any nondisclosure obligations to the Disclosing Party or otherwise in violation of the Disclosing Party's rights, or (d) was\ndeveloped by the Receiving Party independently of any Confidential Information received from the Disclosing Party.\n3. Obligations Regarding Confidential Information. The Receiving Party (a) shall restrict disclosure of Confidential Information solely to\nemployees or consultants on a need to know basis provided such employees and/or consultants have executed appropriate written agreements with\nthe Receiving Party to enable Receiving Party to comply with all provisions of this Agreement, (b) shall protect the Confidential Information with\nat\nleast the same degree of care and confidentiality as it affords its own confidential information, at all times exercising at least a reasonable degree of\ncare in such protection, and (c) shall not use any Confidential Information in any manner except in furtherance of Receiving Party's business\nrelationship with Disclosing party, or as otherwise agreed by the Disclosing Party in writing. In addition, with respect to any product or formulation\ndelivered to the Receiving Party by the Disclosing Party, the Receiving Party shall not reverse engineer, dissect, disassemble, decompile or otherwise\nanalyze the physical or chemical construction of any such Confidential Information except as\n1\nnecessary to the evaluation of the Business Relationship. Notwithstanding the foregoing, the Receiving Party may disclose Confidentia Information\npursuant to an order of a court or governmental agency as so required by such order, provided that the Receiving Party shall first notify the\nDisclosing Party of such order and afford the Disclosing Party the opportunity to seek a protective order relating to such disclosure. The Receiving\nParty agrees to notify the Disclosing Party immediately if it learns of any use or disclosure of any Disclosing Party Confidential Information in\nviolation of the terms of this Agreement. With respect to any material nonpublic information of any Disclosing Party subject to regulation by the\nU.S. Securities & Exchange Commission ("SEC"), the Receiving Party agrees that it will comply with SEC Regulation FD (Fair Disclosure), as\namended, and will refrain from trading in the Disclosing Party's stock until that nonpublic information is either publicly disseminated or deemed\nimmaterial by the Disclosing Party.\n4. Term. The term of this Agreement shall commence on the Effective Date and shall terminate three (3) years thereafter, provided that all\nobligations hereunder with respect to disclosures of Confidential Information during the term hereof shall survive termination for a period of two\n(2) years from date of disclosure.\n5. Title and Proprietary Rights. Notwithstanding the disclosure of any Confidential Information by the Disclosing Party to the Receiving\nParty, the Disclosing Party shall retain title and all intellectual property and proprietary rights thereto, and the Receiving Party will have no rights, by\nlicense or otherwise, to use the Confidential Information except as expressly provided herein. The Receiving Party shall not alter or obliterate any\ntrademark, trademark notice, copyright notice, confidentiality notice or any notice of any other proprietary right of the Disclosing Party on any copy\nof Confidential Information, and shall reproduce any such mark or notice on all copies of such Confidential Information.\n6. Return of Confidential Information. The Receiving Party shall promptly return all tangible material embodying Confidential Information\n(in\nany\nform\nand\nincluding,\nwithout\nlimitation,\nall\nsummaries,\ncopies\nand\nexcerpts\nof\nConfidential\nInformation)\nupon\nthe\nearlier\nof\n(a)\nthe\nexpiration\nof this Agreement, (b) the earlier written termination of the dealings between the Disclosing Party and the Receiving Party, and (c) the Disclosing\nParty's written request.\n7. Injunctive Relief. The parties acknowledge that monetary damages may not be sufficient for unauthorized disclosure by the Receiving\nParty of Confidential Information, and that the Disclosing Party shall be entitled, without waiving any other rights or remedies, to seek injunctive\nor\nequitable relief as may be deemed proper by a court of proper jurisdiction.\n8. Limited Relationship. This Agreement will not create a joint venture, partnership or other formal business relationship or entity of any\nkind, or an obligation to form any such relationship or entity. Each party shall bear all costs and expenses incurred by it in complying with this\nAgreement.\n9.\nLaw. This Agreement shall be governed by and construed in accordance with the laws of the State of California, and each party consents to\nthe jurisdiction of the courts in the State of California, County of Alameda. The prevailing party in any suit brought to enforce rights under this\nAgreement shall be entitled to receive reasonable attorneys' fees.\n10. General. In the event that one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or\nunenforceable in any respect, then to the maximum extent permitted by law, the remaining provisions of this Agreement shall remain in full force\nand effect. Any waiver, express or implied, by any party of any of its rights arising under this Agreement must be in writing and shall not constitute\nor be deemed a waiver of any other right hereunder, whether of a similar or dissimilar nature. This Agreement shall be binding upon and inure to the\nbenefit of the parties hereto and their respective successors and assigns.\n11. Entire Agreement; Counterparts. This Agreement constitutes the entire agreement between the parties relating to the Purpose, and\nsupercedes all prior discussions between the parties relating thereto. No amendment or modification of this Agreement shall be valid or binding on\nthe parties unless in writing and signed by each party's authorized representative. This Agreement may be executed in two or more counterparts,\neach of which shall be considered an original, and all of which together shall constitute one and the same instrument. Each party agrees that the\ndelivery of this Agreement via facsimile shall be deemed effective delivery.\n2\nIN WITNESS WHEREOF, the parties hereto have executed this Mutual Nondisclosure Agreement as of the Effective Date.\nAllergy Research Group, Inc.\nKikkoman Corporation\nBy:\n/s/ Manfred Salomon\nBy:\n/s/ Mitsuo Someya\nSignature\nSignature\nName: Manfred Salomon\nName: Mitsuo Someya\nRepresentative Director\nTitle: President\nTitle: Senior Executive Corporate Officer\n3	EX-99.(D)(3) 11 dex99d3.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (the “Agreement”) is made as of March 12, 2008 (the “Effective Date”) by and between Kikkoman\nCorporation (“Kikkoman”), a Japanese corporation and Allergy Research Group, Inc. (“Company”), a Florida corporation.\nRecitals\nA. The parties wish to explore a possible business opportunity of mutual interest (“Business Relationship”) which may involve the disclosure\nby each party (the “Disclosing Party”) to the other party (the “Receiving Party”) of confidential and proprietary information regarding product\ninformation, technical data and other information which is owned by the Disclosing Party, its affiliates or third parties to which the Disclosing Party\nhas obligations regarding the protection of such information.\nB. As a condition to each Disclosing Party’s release of such confidential and proprietary information, the parties wish to enter into this\nAgreement.\nAgreement\nNOW, THEREFORE, in consideration of the mutual promises herein, the parties agree as follows:\n1. Confidential Information. For purposes of this Agreement, “Confidential Information” means all nonpublic information concerning or\nowned by Disclosing Party including, but not limited to, all tangible, intangible, visual, electronic, present or future information such as but not\nlimited to: (a) all intellectual property, including but not limited to patents and patent applications, and trade secrets; (b) financial information or\npersonnel matters relating to products, employees, investors or business; (c) technical information, including research, procedures, processes,\nspecifications, designs, development, data and know-how; (d) business information, including operations, planning, marketing interests, products\n(including product formulations and test data), and client and distributor lists; (e) the terms of any agreement to which Disclosing Party is a party;\n(f) discussions, negotiations or proposals related to agreements; and (g) or any other item of Confidential Information, including but not limited to all\nwritings, illustrations, photographs or other information which Disclosing Party deems to be proprietary or confidential. Confidential Information\nincludes all notes, analyses, compilations, studies, interpretations or other materials prepared by the Disclosing Party or its representatives to the\nextent such materials contain or are based on the Confidential Information furnished to the Receiving Party pursuant to this Agreement. All such\nConfidential Information shall be subject to the terms of this Agreement whether marked as “Confidential” or not and whether disclosed orally,\nelectronically, in writing or other media.\n2. Exclusions. Notwithstanding the foregoing, Confidential Information shall not include any information, however designated, which the\nReceiving Party can show (a) is or has become generally available in the public without breach of this Agreement by the Receiving Party,\n(b) became known to the Receiving Party prior to disclosure to the Receiving Party by the Disclosing Party, (c) was received from a third party\nwithout breach of any nondisclosure obligations to the Disclosing Party or otherwise in violation of the Disclosing Party’s rights, or (d) was\ndeveloped by the Receiving Party independently of any Confidential Information received from the Disclosing Party.\n3. Obligations Regarding Confidential Information. The Receiving Party (a) shall restrict disclosure of Confidential Information solely to\nemployees or consultants on a need to know basis provided such employees and/or consultants have executed appropriate written agreements with\nthe Receiving Party to enable Receiving Party to comply with all provisions of this Agreement, (b) shall protect the Confidential Information with at\nleast the same degree of care and confidentiality as it affords its own confidential information, at all times exercising at least a reasonable degree of\ncare in such protection, and (c) shall not use any Confidential Information in any manner except in furtherance of Receiving Party’s business\nrelationship with Disclosing party, or as otherwise agreed by the Disclosing Party in writing. In addition, with respect to any product or formulation\ndelivered to the Receiving Party by the Disclosing Party, the Receiving Party shall not reverse engineer, dissect, disassemble, decompile or otherwise\nanalyze the physical or chemical construction of any such Confidential Information except as\n1\nnecessary to the evaluation of the Business Relationship. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information\npursuant to an order of a court or governmental agency as so required by such order, provided that the Receiving Party shall first notify the\nDisclosing Party of such order and afford the Disclosing Party the opportunity to seek a protective order relating to such disclosure. The Receiving\nParty agrees to notify the Disclosing Party immediately if it learns of any use or disclosure of any Disclosing Party Confidential Information in\nviolation of the terms of this Agreement. With respect to any material nonpublic information of any Disclosing Party subject to regulation by the\nU.S . Securities & Exchange Commission (“SEC”), the Receiving Party agrees that it will comply with SEC Regulation FD (Fair Disclosure), as\namended, and will refrain from trading in the Disclosing Party’s stock until that nonpublic information is either publicly disseminated or deemed\nimmaterial by the Disclosing Party.\n4. Term. The term of this Agreement shall commence on the Effective Date and shall terminate three (3) years thereafter, provided that all\nobligations hereunder with respect to disclosures of Confidential Information during the term hereof shall survive termination for a period of two\n(2) years from date of disclosure.\n5. Title and Proprietary Rights. Notwithstanding the disclosure of any Confidential Information by the Disclosing Party to the Receiving\nParty, the Disclosing Party shall retain title and all intellectual property and proprietary rights thereto, and the Receiving Party will have no rights, by\nlicense or otherwise, to use the Confidential Information except as expressly provided herein. The Receiving Party shall not alter or obliterate any\ntrademark, trademark notice, copyright notice, confidentiality notice or any notice of any other proprietary right of the Disclosing Party on any copy\nof Confidential Information, and shall reproduce any such mark or notice on all copies of such Confidential Information.\n6. Return of Confidential Information. The Receiving Party shall promptly return all tangible material embodying Confidential Information\n(in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information) upon the earlier of (a) the expiration\nof this Agreement, (b) the earlier written termination of the dealings between the Disclosing Party and the Receiving Party, and (c) the Disclosing\nParty’s written request.\n7. Injunctive Relief. The parties acknowledge that monetary damages may not be sufficient for unauthorized disclosure by the Receiving\nParty of Confidential Information, and that the Disclosing Party shall be entitled, without waiving any other rights or remedies, to seek injunctive or\nequitable relief as may be deemed proper by a court of proper jurisdiction.\n8. Limited Relationship. This Agreement will not create a joint venture, partnership or other formal business relationship or entity of any\nkind, or an obligation to form any such relationship or entity. Each party shall bear all costs and expenses incurred by it in complying with this\nAgreement.\n9. Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, and each party consents to\nthe jurisdiction of the courts in the State of California, County of Alameda. The prevailing party in any suit brought to enforce rights under this\nAgreement shall be entitled to receive reasonable attorneys’ fees.\n10. General. In the event that one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or\nunenforceable in any respect, then to the maximum extent permitted by law, the remaining provisions of this Agreement shall remain in full force\nand effect. Any waiver, express or implied, by any party of any of its rights arising under this Agreement must be in writing and shall not constitute\nor be deemed a waiver of any other right hereunder, whether of a similar or dissimilar nature. This Agreement shall be binding upon and inure to the\nbenefit of the parties hereto and their respective successors and assigns.\n11. Entire Agreement; Counterparts. This Agreement constitutes the entire agreement between the parties relating to the Purpose, and\nsupercedes all prior discussions between the parties relating thereto. No amendment or modification of this Agreement shall be valid or binding on\nthe parties unless in writing and signed by each party’s authorized representative. This Agreement may be executed in two or more counterparts,\neach of which shall be considered an original, and all of which together shall constitute one and the same instrument. Each party agrees that the\ndelivery of this Agreement via facsimile shall be deemed effective delivery.\n2\nIN WITNESS WHEREOF, the parties hereto have executed this Mutual Nondisclosure Agreement as of the Effective Date.\nAllergy Research Group, Inc.\nKikkoman Corporation\nBy: /s/ Manfred Salomon\nBy: /s/ Mitsuo Someya\nSignature\nSignature\nName: Manfred Salomon\nName: Mitsuo Someya\nRepresentative Director\nTitle: President\nTitle: Senior Executive Corporate Officer\n3
+d35669c46ad4b8d30e5f09b4eb94d889.pdf	effective_date jurisdiction party term	EXHIBIT B\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (“Agreement”) is made and entered into as of this 9th day of July, 2008 (the “Effective Date”), by and\nbetween Innotrac Corporation having a place of business at 6655 Sugarloaf Parkway, Duluth, GA 30097 (“INNOTRAC”), and Dynamic Response\nGroup, Inc, having its principal place of business at 4770 Biscayne Blvd., Suite 1400, Miami, FL 33137 (“COMPANY”).\n1. INNOTRAC and COMPANY are entering into this Agreement in order to obtain from the other certain technical and business information\nunder terms that will protect the confidential and proprietary nature of such information. Such information shall only be used in conjunction with the\nparties entering into a new business outsourcing relationship.\n2. As used herein, “Confidential Information” shall mean any and all technical or business information, including third party information\n(including, but not limited to, trade secrets, product/service specifications, prototypes, computer programs, models, drawings, marketing plans,\nfinancial data, and personnel statistics) provided, disclosed or made accessible by one party to the other that is either identified as or would\nreasonably be understood to be confidential and/or proprietary. “Confidential Information” does not include information that the receiving party can\nclearly establish by written evidence: (a) is or becomes known to the receiving party from a third party without an obligation to maintain its\nconfidentiality; (b) is or becomes generally known to the public through no act or omission of the receiving party; or (c) is independently developed\nby the receiving party without use of Confidential Information of the disclosing party.\n3. The receiving party will make no use of Confidential Information of the disclosing party for any purpose other than that specified in\nSection 1. The receiving party will not disclose Confidential Information of the disclosing party to any third party (including any affiliates of itself or\nof the disclosing party), and will protect and treat all Confidential Information of the disclosing party with the same degree of care as it uses to\nprotect its own confidential information of like importance, but in no event with less than reasonable care. The receiving party will only disclose\nConfidential Information of the disclosing party to its employees and/or agents who have a “need to know.” The receiving party will notify and\ninform such employees and/or agents of the receiving party’s obligations imposed by this Agreement, and the receiving party will be responsible for\nany breach of this Agreement by its employees and/or agents. In the event that the receiving party is required to disclose Confidential Information of\nthe disclosing party pursuant to law, the receiving party will notify the disclosing party of the required disclosure with sufficient time for the\ndisclosing party to seek relief, will cooperate with the disclosing party in taking appropriate protective measures, and will make such disclosure in a\nfashion that maximizes protection of the Confidential Information from further disclosure.\n4. The receiving party agrees that in the event that the disclosing party grants permission for the receiving party to copy Confidential\nInformation, or that copying is otherwise permitted hereunder, each such copy shall contain the same confidential or proprietary notices or legends\nthat appear on the original.\n5. This Agreement shall remain in full force and effect during the Term of the Fulfillment Services Agreement executed by the parties dated\nJuly, 2008 and for a period of two (2) years following the expiration or termination of same.\n6. Upon termination of this Agreement for any reason or upon request of the disclosing party, the receiving party shall, at the disclosing party’s\noption, return all Confidential Information, together with any copies thereof, to the disclosing party, or certify to the disclosing party that the same\nhas been destroyed.\n7. Except for the obligations of use and confidentiality imposed herein, no obligation of any kind is assumed or implied against either party by\nvirtue of the parties’ meetings or conversations with respect to the subject matter stated above or with respect to whatever Confidential Information\nis exchanged. Without limiting the generality of the foregoing, so long as the receiving party does not breach this Agreement, this Agreement shall\nnot impair or restrict the receiving party’s right to make, procure or market any products or services, now or in the future, that may be similar to or\ncompetitive with those offered by the disclosing party, or that are the subject matter of the information exchanged pursuant to this Agreement.\n8. Nothing herein contained shall be construed as granting to either party any right or license under any copyrights, inventions, or patents now\nor hereafter owned or controlled by the other party.\nConfidential\nPage 16\n9. Without the prior consent of the other party, neither party shall disclose to any third party the terms or conditions of this Agreement and that\nConfidential Information is being shared. The parties also agree that neither party shall use any trade name, service mark, or trademark of the other\nor refer to the other party in any promotional activity or material without obtaining the prior written consent of the other party.\n10. Neither this Agreement nor any rights or obligations of either party under this Agreement shall be transferable or assignable by that party\nwithout the prior written consent of the other party, and any attempted transfer or assignment of this Agreement by either party not in accordance\nherewith shall be null and void. Notwithstanding the foregoing, COMPANY may assign this Agreement immediately, without the prior written\nconsent of the other party: (a) to any entity that controls, is controlled by, or is in common control with, COMPANY, and (b) to any successor in\ninterest to COMPANY. The rights and obligations of each party under this Agreement shall be binding upon and inure to the benefit of their\npermitted successors or assigns.\n11. This Agreement will be governed by the laws of the State of Georgia without reference to its choice of law rules. It is expressly agreed that\neither party may seek injunctive relief with respect to this Agreement in the state and federal courts in the state and county of the party defending the\naction, and the parties hereby irrevocably consent to exclusive jurisdiction and venue therein.\n12. This Agreement, together with any and all exhibits incorporated herein, constitutes the entire agreement between the parties with respect to\nthe subject matter of this Agreement and supersedes all prior oral and written understandings, arrangements and agreements between the parties\nrelating thereto. No provision of this Agreement shall be deemed waived, amended or modified by either party, unless such waiver, amendment or\nmodification is made in writing and signed by both parties.\n13. Any notice to be given hereunder by either party to the other shall be in writing and shall be hand delivered, sent by overnight courier or\nsent by U.S . mail to the address listed below. All notices shall be deemed effective upon receipt.\nINNOTRAC CORPORATION\nDYNAMIC RESPONSE GROUP, INC.\nInnotrac Corporation\nDynamic Response Group, Inc.\n6655 Sugarloaf Parkway\n4770 Biscayne Blvd., Suite 1400\nAtlanta, GA 30097\nMiami, FL 33137\nPhone: 678.584.4000\nPhone: 305.576.6889\nFax: 678.584.8950\nFax: 305.576.6997\nAttn: George Hare, CFO\nAttn: Melissa Rice, CEO\n14. Neither party will use the other party’s names, marks, codes, drawings or specifications in any advertising, press release, promotional effort\nor publicity of any kind without the prior written permission of the other party.\nIN WITNESS THEREOF, this Agreement is executed by the parties as of the date first set forth above.\nINNOTRAC CORPORATION\nDYNAMIC RESPONSE GROUP, INC.\nBy: /s/ George Hare\nBy: /s/ Melissa K. Rice\nName: George Hare\nName: Melissa K. Rice\nTitle: CEO 7-15 -08\nTitle: CEO 7-18-08\nConfidential\nPage 17	EXHIBIT B\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (“Agreement”) is made and entered into as of this 9th day of July, 2008 (the “Effective Date”), by and\nbetween Innotrac Corporation having a place of business at 6655 Sugarloaf Parkway, Duluth, GA 30097 (“INNOTRAC”), and Dynamic Response\nGroup, Inc, having its principal place of business at 4770 Biscayne Blvd., Suite 1400, Miami, FL 33137 (“COMPANY”).\n1. INNOTRAC and COMPANY are entering into this Agreement in order to obtain from the other certain technical and business information\nunder terms that will protect the confidential and proprietary nature of such information. Such information shall only be used in conjunction with the\nparties entering into a new business outsourcing relationship.\n2. As used herein, “Confidential Information” shall mean any and all technical or business information, including third party information\n(including, but not limited to, trade secrets, product/service specifications, prototypes, computer programs, models, drawings, marketing plans,\nfinancial data, and personnel statistics) provided, disclosed or made accessible by one party to the other that is either identified as or would\nreasonably be understood to be confidential and/or proprietary. “Confidential Information” does not include information that the receiving party can\nclearly establish by written evidence: (a) is or becomes known to the receiving party from a third party without an obligation to maintain its\nconfidentiality; (b) is or becomes generally known to the public through no act or omission of the receiving party; or (c) is independently developed\nby the receiving party without use of Confidential Information of the disclosing party.\n3. The receiving party will make no use of Confidential Information of the disclosing party for any purpose other than that specified in\nSection 1. The receiving party will not disclose Confidential Information of the disclosing party to any third party (including any affiliates of itself or\nof the disclosing party), and will protect and treat all Confidential Information of the disclosing party with the same degree of care as it uses to\nprotect its own confidential information of like importance, but in no event with less than reasonable care. The receiving party will only disclose\nConfidential Information of the disclosing party to its employees and/or agents who have a “need to know.” The receiving party will notify and\ninform such employees and/or agents of the receiving party’s obligations imposed by this Agreement, and the receiving party will be responsible for\nany breach of this Agreement by its employees and/or agents. In the event that the receiving party is required to disclose Confidential Information of\nthe disclosing party pursuant to law, the receiving party will notify the disclosing party of the required disclosure with sufficient time for the\ndisclosing party to seek relief, will cooperate with the disclosing party in taking appropriate protective measures, and will make such disclosure in a\nfashion that maximizes protection of the Confidential Information from further disclosure.\n4. The receiving party agrees that in the event that the disclosing party grants permission for the receiving party to copy Confidential\nInformation, or that copying is otherwise permitted hereunder, each such copy shall contain the same confidential or proprietary notices or legends\nthat appear on the original.\n5. This Agreement shall remain in full force and effect during the Term of the Fulfillment Services Agreement executed by the parties dated\nJuly, 2008 and for a period of two (2) years following the expiration or termination of same.\n6. Upon termination of this Agreement for any reason or upon request of the disclosing party, the receiving party shall, at the disclosing party’s\noption, return all Confidential Information, together with any copies thereof, to the disclosing party, or certify to the disclosing party that the same\nhas been destroyed.\n7. Except for the obligations of use and confidentiality imposed herein, no obligation of any kind is assumed or implied against either party by\nvirtue of the parties’ meetings or conversations with respect to the subject matter stated above or with respect to whatever Confidential Information\nis exchanged. Without limiting the generality of the foregoing, so long as the receiving party does not breach this Agreement, this Agreement shall\nnot impair or restrict the receiving party’s right to make, procure or market any products or services, now or in the future, that may be similar to or\ncompetitive with those offered by the disclosing party, or that are the subject matter of the information exchanged pursuant to this Agreement.\n8. Nothing herein contained shall be construed as granting to either party any right or license under any copyrights, inventions, or patents now\nor hereafter owned or controlled by the other party.\nConfidential Page 16\n9. Without the prior consent of the other party, neither party shall disclose to any third party the terms or conditions of this Agreement and that\nConfidential Information is being shared. The parties also agree that neither party shall use any trade name, service mark, or trademark of the other\nor refer to the other party in any promotional activity or material without obtaining the prior written consent of the other party.\n10. Neither this Agreement nor any rights or obligations of either party under this Agreement shall be transferable or assignable by that party\nwithout the prior written consent of the other party, and any attempted transfer or assignment of this Agreement by either party not in accordance\nherewith shall be null and void. Notwithstanding the foregoing, COMPANY may assign this Agreement immediately, without the prior written\nconsent of the other party: (a) to any entity that controls, is controlled by, or is in common control with, COMPANY, and (b) to any successor in\ninterest to COMPANY. The rights and obligations of each party under this Agreement shall be binding upon and inure to the benefit of their\npermitted successors or assigns.\n11. This Agreement will be governed by the laws of the State of Georgia without reference to its choice of law rules. It is expressly agreed that\neither party may seek injunctive relief with respect to this Agreement in the state and federal courts in the state and county of the party defending the\naction, and the parties hereby irrevocably consent to exclusive jurisdiction and venue therein.\n12. This Agreement, together with any and all exhibits incorporated herein, constitutes the entire agreement between the parties with respect to\nthe subject matter of this Agreement and supersedes all prior oral and written understandings, arrangements and agreements between the parties\nrelating thereto. No provision of this Agreement shall be deemed waived, amended or modified by either party, unless such waiver, amendment or\nmodification is made in writing and signed by both parties.\n13. Any notice to be given hereunder by either party to the other shall be in writing and shall be hand delivered, sent by overnight courier or\nsent by U.S. mail to the address listed below. All notices shall be deemed effective upon receipt.\nINNOTRAC CORPORATION DYNAMIC RESPONSE GROUP, INC.\nInnotrac Corporation Dynamic Response Group, Inc.\n6655 Sugarloaf Parkway 4770 Biscayne Blvd., Suite 1400\nAtlanta, GA 30097 Miami, FL 33137\nPhone: 678.584.4000 Phone: 305.576.6889\nFax: 678.584.8950 Fax: 305.576.6997\nAttn: George Hare, CFO Attn: Melissa Rice, CEO\n14. Neither party will use the other party’s names, marks, codes, drawings or specifications in any advertising, press release, promotional effort\nor publicity of any kind without the prior written permission of the other party.\nIN WITNESS THEREOF, this Agreement is executed by the parties as of the date first set forth above.\nINNOTRAC CORPORATION DYNAMIC RESPONSE GROUP, INC.\nBy: /s/ George Hare By: /s/ Melissa K. Rice\nName: George Hare Name: Melissa K. Rice\nTitle: CEO 7-15-08 Title: CEO 7-18-08\nConfidential Page 17	EXHIBIT B\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement ("Agreement") is made and entered into as of this 9th day of July, 2008 (the "Effective Date"), by and\nbetween Innotrac Corporation having a place of business at 6655 Sugarloaf Parkway, Duluth, GA 30097 ("INNOTRAC"), and Dynamic Response\nGroup, Inc, having its principal place of business at 4770 Biscayne Blvd., Suite 1400, Miami, FL 33137 ("COMPANY").\n1. INNOTRAC and COMPANY are entering into this Agreement in order to obtain from the other certain technical and business information\nunder terms that will protect the confidential and proprietary nature of such information. Such information shall only be used in conjunction with the\nparties entering into a new business outsourcing relationship.\n2. As used herein, "Confidential Information" shall mean any and all technical or business information including third party information\n(including, but not limited to, trade secrets, product/service specifications, prototypes, computer programs, models, drawings, marketing plans,\nfinancial data, and personnel statistics) provided, disclosed or made accessible by one party to the other that is either identified as or would\nreasonably be understood to be confidential and/or proprietary. "Confidential Information" does not include information that the receiving party can\nclearly establish by written evidence: (a) is or becomes known to the receiving party from a third party without an obligation to maintain its\nconfidentiality; (b) is or becomes generally known to the public through no act or omission of the receiving party; or (c) is independently developed\nby the receiving party without use of Confidential Information of the disclosing party.\n3. The receiving party will make no use of Confidential Information of the disclosing party for any purpose other than that specified in\nSection 1. The receiving party will not disclose Confidential Information of the disclosing party to any third party (including any affiliates of itself or\nof the disclosing party), and will protect and treat all Confidential Information of the disclosing party with the same degree of care as it uses to\nprotect\nits\nown\nconfidential\ninformation\nof\nlike\nimportance,\nbut\nin\nno\nevent\nwith\nless\nthan\nreasonable\ncare.\nThe\nreceiving\nparty\nwill\nonly\ndisclose\nConfidential Information of the disclosing party to its employees and/or agents who have a "need to know." The receiving party will notify and\ninform such employees and/or agents of the receiving party's obligations imposed by this Agreement, and the receiving party will be responsible\nfor\nany\nbreach of this Agreement by its employees and/or agents. In the event that the receiving party is required to disclose Confidential Information\nof\nthe disclosing party pursuant to law, the receiving party will notify the disclosing party of the required disclosure with sufficient time for the\ndisclosing party to seek relief, will cooperate with the disclosing party in taking appropriate protective measures, and will make such disclosure in\na\nfashion that maximizes protection of the Confidential Information from further disclosure.\n4. The receiving party agrees that in the event that the disclosing party grants permission for the receiving party to copy Confidential\nInformation, or that copying is otherwise permitted hereunder, each such copy shall contain the same confidential or proprietary notices or legends\nthat appear on the original.\n5. This Agreement shall remain in full force and effect during the Term of the Fulfillment Services Agreement executed by the parties dated\nJuly, 2008 and for a period of two (2) years following the expiration or termination of same.\n6.\nUpon termination of this Agreement for any reason or upon request of the disclosing party, the receiving party shall, at the disclosing party's\noption, return all Confidential Information, together with any copies thereof, to the disclosing party, or certify to the disclosing party that the same\nhas been destroyed.\n7. Except for the obligations of use and confidentiality imposed herein, no obligation of any kind is assumed or implied against either party by\nvirtue of the parties' meetings or conversations with respect to the subject matter stated above or with respect to whatever Confidential Information\nis\nexchanged. Without limiting the generality of the foregoing, so long as the receiving party does not breach this Agreement, this Agreement shall\nnot impair or restrict the receiving party's right to make, procure or market any products or services, now or in the future, that may be similar to or\ncompetitive with those offered by the disclosing party, or that are the subject matter of the information exchanged pursuant to this Agreement.\n8. Nothing herein contained shall be construed as granting to either party any right or license under any copyrights, inventions, or patents now\nor hereafter owned or controlled by the other party.\nConfidential\nPage 16\n9. Without the prior consent of the other party, neither party shall disclose to any third party the terms or conditions of this Agreement and that\nConfidential Information is being shared. The parties also agree that neither party shall use any trade name, service mark, or trademark of the other\nor refer to the other party in any promotional activity or material without obtaining the prior written consent of the other party.\n10. Neither this Agreement nor any rights or obligations of either party under this Agreement shall be transferable or assignable by that party\nwithout the prior written consent of the other party, and any attempted transfer or assignment of this Agreement by either party not in accordance\nherewith shall be null and void Notwithstanding the foregoing, COMPANY may assign this Agreement immediately, without the prior written\nconsent of the other party: (a) to any entity that controls, is controlled by, or is in common control with, COMPANY, and (b) to any successor\nin\ninterest to COMPANY. The rights and obligations of each party under this Agreement shall be binding upon and inure to the benefit of their\npermitted successors or assigns.\n11. This Agreement will be governed by the laws of the State of Georgia without reference to its choice of law rules. It is expressly agreed that\neither party may seek injunctive relief with respect to this Agreement in the state and federal courts in the state and county of the party defending the\naction, and the parties hereby irrevocably consent to exclusive jurisdiction and venue therein.\n12. This Agreement, together with any and all exhibits incorporated herein, constitutes the entire agreement between the parties with respect to\nthe subject matter of this Agreement and supersedes all prior oral and written understandings, arrangements and agreements between the parties\nrelating thereto. No provision of this Agreement shall be deemed waived, amended or modified by either party, unless such waiver, amendment or\nmodification is made in writing and signed by both parties.\n13. Any notice to be given hereunder by either party to the other shall be in writing and shall be hand delivered, sent by overnight courier or\nsent by U.S. mail to the address listed below. All notices shall be deemed effective upon receipt.\nINNOTRAC CORPORATION\nDYNAMIC RESPONSE GROUP, INC.\nInnotrac Corporation\nDynamic Response Group, Inc.\n6655 Sugarloaf Parkway\n4770 Biscayne Blvd., Suite 1400\nAtlanta, GA 30097\nMiami, FL 33137\nPhone: 678.584.4000\nPhone: 305.576.6889\nFax: 678.584.8950\nFax: 305.576.6997\nAttn: George Hare, CFO\nAttn: Melissa Rice, CEO\n14. Neither party will use the other party's names, marks, codes, drawings or specifications in any advertising, press release, promotional effort\nor publicity of any kind without the prior written permission of the other party.\nIN WITNESS THEREOF, this Agreement is executed by the parties as of the date first set forth above.\nINNOTRAC CORPORATION\nDYNAMIC RESPONSE GROUP, INC.\nBy:\n/s/ George Hare\nBy:\n/s/ Melissa K. Rice\nName: George Hare\nName: Melissa K. Rice\nTitle: CEO 7-15-08\nTitle: CEO 7-18-08\nConfidential\nPage 17	EXHIBIT B\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (“Agreement”) is made and entered into as of this 9th day of July, 2008 (the “Effective Date”), by and\nbetween Innotrac Corporation having a place of business at 6655 Sugarloaf Parkway, Duluth, GA 30097 (“INNOTRAC”), and Dynamic Response\nGroup, Inc, having its principal place of business at 4770 Biscayne Blvd., Suite 1400, Miami, FL 33137 (“COMPANY”).\n1. INNOTRAC and COMPANY are entering into this Agreement in order to obtain from the other certain technical and business information\nunder terms that will protect the confidential and proprietary nature of such information. Such information shall only be used in conjunction with the\nparties entering into a new business outsourcing relationship.\n2. As used herein, “Confidential Information” shall mean any and all technical or business information, including third party information\n(including, but not limited to, trade secrets, product/service specifications, prototypes, computer programs, models, drawings, marketing plans,\nfinancial data, and personnel statistics) provided, disclosed or made accessible by one party to the other that is either identified as or would\nreasonably be understood to be confidential and/or proprietary. “Confidential Information” does not include information that the receiving party can\nclearly establish by written evidence: (a) is or becomes known to the receiving party from a third party without an obligation to maintain its\nconfidentiality; (b) is or becomes generally known to the public through no act or omission of the receiving party; or (c) is independently developed\nby the receiving party without use of Confidential Information of the disclosing party.\n3. The receiving party will make no use of Confidential Information of the disclosing party for any purpose other than that specified in\nSection 1. The receiving party will not disclose Confidential Information of the disclosing party to any third party (including any affiliates of itself or\nof the disclosing party), and will protect and treat all Confidential Information of the disclosing party with the same degree of care as it uses to\nprotect its own confidential information of like importance, but in no event with less than reasonable care. The receiving party will only disclose\nConfidential Information of the disclosing party to its employees and/or agents who have a “need to know.” The receiving party will notify and\ninform such employees and/or agents of the receiving party’s obligations imposed by this Agreement, and the receiving party will be responsible for\nany breach of this Agreement by its employees and/or agents. In the event that the receiving party is required to disclose Confidential Information of\nthe disclosing party pursuant to law, the receiving party will notify the disclosing party of the required disclosure with sufficient time for the\ndisclosing party to seek relief, will cooperate with the disclosing party in taking appropriate protective measures, and will make such disclosure in a\nfashion that maximizes protection of the Confidential Information from further disclosure.\n4. The receiving party agrees that in the event that the disclosing party grants permission for the receiving party to copy Confidential\nInformation, or that copying is otherwise permitted hereunder, each such copy shall contain the same confidential or proprietary notices or legends\nthat appear on the original.\n5. This Agreement shall remain in full force and effect during the Term of the Fulfillment Services Agreement executed by the parties dated\nJuly, 2008 and for a period of two (2) years following the expiration or termination of same.\n6. Upon termination of this Agreement for any reason or upon request of the disclosing party, the receiving party shall, at the disclosing party’s\noption, return all Confidential Information, together with any copies thereof, to the disclosing party, or certify to the disclosing party that the same\nhas been destroyed.\n7. Except for the obligations of use and confidentiality imposed herein, no obligation of any kind is assumed or implied against either party by\nvirtue of the parties’ meetings or conversations with respect to the subject matter stated above or with respect to whatever Confidential Information\nis exchanged. Without limiting the generality of the foregoing, so long as the receiving party does not breach this Agreement, this Agreement shall\nnot impair or restrict the receiving party’s right to make, procure or market any products or services, now or in the future, that may be similar to or\ncompetitive with those offered by the disclosing party, or that are the subject matter of the information exchanged pursuant to this Agreement.\n8. Nothing herein contained shall be construed as granting to either party any right or license under any copyrights, inventions, or patents now\nor hereafter owned or controlled by the other party.\nConfidential\nPage 16\n9. Without the prior consent of the other party, neither party shall disclose to any third party the terms or conditions of this Agreement and that\nConfidential Information is being shared. The parties also agree that neither party shall use any trade name, service mark, or trademark of the other\nor refer to the other party in any promotional activity or material without obtaining the prior written consent of the other party.\n10. Neither this Agreement nor any rights or obligations of either party under this Agreement shall be transferable or assignable by that party\nwithout the prior written consent of the other party, and any attempted transfer or assignment of this Agreement by either party not in accordance\nherewith shall be null and void. Notwithstanding the foregoing, COMPANY may assign this Agreement immediately, without the prior written\nconsent of the other party: (a) to any entity that controls, is controlled by, or is in common control with, COMPANY, and (b) to any successor in\ninterest to COMPANY. The rights and obligations of each party under this Agreement shall be binding upon and inure to the benefit of their\npermitted successors or assigns.\n11. This Agreement will be governed by the laws of the State of Georgia without reference to its choice of law rules. It is expressly agreed that\neither party may seek injunctive relief with respect to this Agreement in the state and federal courts in the state and county of the party defending the\naction, and the parties hereby irrevocably consent to exclusive jurisdiction and venue therein.\n12. This Agreement, together with any and all exhibits incorporated herein, constitutes the entire agreement between the parties with respect to\nthe subject matter of this Agreement and supersedes all prior oral and written understandings, arrangements and agreements between the parties\nrelating thereto. No provision of this Agreement shall be deemed waived, amended or modified by either party, unless such waiver, amendment or\nmodification is made in writing and signed by both parties.\n13. Any notice to be given hereunder by either party to the other shall be in writing and shall be hand delivered, sent by overnight courier or\nsent by U.S . mail to the address listed below. All notices shall be deemed effective upon receipt.\nINNOTRAC CORPORATION\nDYNAMIC RESPONSE GROUP, INC.\nInnotrac Corporation\nDynamic Response Group, Inc.\n6655 Sugarloaf Parkway\n4770 Biscayne Blvd., Suite 1400\nAtlanta, GA 30097\nMiami, FL 33137\nPhone: 678.584.4000\nPhone: 305.576.6889\nFax: 678.584.8950\nFax: 305.576.6997\nAttn: George Hare, CFO\nAttn: Melissa Rice, CEO\n14. Neither party will use the other party’s names, marks, codes, drawings or specifications in any advertising, press release, promotional effort\nor publicity of any kind without the prior written permission of the other party.\nIN WITNESS THEREOF, this Agreement is executed by the parties as of the date first set forth above.\nINNOTRAC CORPORATION\nDYNAMIC RESPONSE GROUP, INC.\nBy: /s/ George Hare\nBy: /s/ Melissa K. Rice\nName: George Hare\nName: Melissa K. Rice\nTitle: CEO 7-15 -08\nTitle: CEO 7-18-08\nConfidential\nPage 17
+d47abc36dc453e3758620b93254558a2.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nJanuary 7, 2010\nIntersil Corporation\n1001 Murphy Ranch Road\nMilpitas, CA 95035\nLadies and Gentlemen:\nWe understand from Deutsche Bank Securities Inc. (“Deutsche Bank”), our financial adviser, that you may be interested in pursuing a transaction\nwith Techwell, Inc. (the “Company”) on a mutually agreeable basis. In connection with your possible interest in a transaction with the Company,\nwe propose to furnish you with certain information related to the Company (herein referred to as the “Confidential Information”). Confidential\nInformation includes not only written information but also information transferred orally, visually, electronically or by any other means. The fact that\nsuch information has been delivered to you, that such a transaction is under consideration by the Company, that discussions or negotiations have\noccurred or are occurring regarding a possible transaction involving the Company and you, and the status of any such discussions or negotiations, are\nconsidered Confidential Information for purposes of this Agreement. In consideration of our furnishing you with the Confidential Information, and\nas a condition to such disclosure, you agree as follows:\n1. The Confidential Information will be used by you solely for the purpose of your evaluation of the desirability of your entering into a\ntransaction with the Company, and for no other purpose.\n2. You shall keep all Confidential Information secret and confidential and shall not, without the prior written consent of the Company, disclose it\nto anyone except to a limited group of your own employees, directors, officers, agents and outside advisors (“Representatives”) who are\nactually engaged in, and need to know such Confidential Information to perform, the evaluation referred to above, each of whom must be\nadvised of the confidential nature of the Confidential Information and of the terms of this Agreement and must agree to abide by such terms.\nYou shall be responsible for any breach of this Agreement by any of your Representatives.\n3. Upon any termination of your evaluation of pursuing a transaction with the Company or upon notice from the Company to you (i) you will\neither destroy or return to the Company the Confidential Information which is in tangible form, including any copies which you may have\nmade, and you will destroy all abstracts, summaries thereof or references thereto in your documents, and certify to us that you have done so,\nand (ii) neither you nor your Representatives will use any of the Confidential Information with respect to, or in furtherance of, your business,\nany of their respective businesses, or in the business of anyone else, whether or not in competition with the Company, or for any other purpose\nwhatsoever. Notwithstanding the preceding sentence, one copy of Confidential Information in tangible form that has been supplied to you may\nbe retained by your Legal Department for the sole purpose of maintaining a record of Confidential Information that has been disclosed to you\npursuant to this Agreement.\nIntersil Corporation\nJanuary 7, 2010\nPage 2\n4. Confidential Information includes all analyses, compilations, forecasts, studies or other documents prepared by you or your Representatives in\nconnection with your evaluation of pursuing a transaction with the Company. Confidential Information does not include any information which\nwas publicly available prior to your receipt of such information or thereafter became publicly available (other than as a result of disclosure by\nyou or any of your Representatives). Information shall be deemed “publicly available” if it becomes a matter of public knowledge or is\ncontained in materials available to the public or is obtained from any source other than the Company (or its directors, officers, employees,\nagents or outside advisors, including, without limitation, Deutsche Bank), provided that such source is not to your knowledge prohibited from\ndisclosing such information by a legal, contractual or fiduciary obligation to the Company and did not obtain the information from an entity or\nperson prohibited from disclosing such information by a legal, contractual or fiduciary obligation to the Company.\n5. You understand that we have endeavored to include in the Confidential Information those materials which we believe to be reliable and\nrelevant for the purpose of your evaluation, but you acknowledge that neither the Company nor Deutsche Bank nor any of their respective\ndirectors, officers, employees, agents or outside advisors makes any representation or warranty as to the accuracy or completeness of the\nConfidential Information and you agree that such persons shall have no liability to you or any of your Representatives resulting from any use\nof the Confidential Information. You understand that the Confidential Information is not being furnished for use in an offer or sale of securities\nof the Company and is not designed to satisfy the requirements of federal or state securities laws in connection with any offer or sale of such\nsecurities to you.\n6. In the event that you or any of your Representatives is requested in any proceeding to disclose any of the Confidential Information, you will\nprovide the Company with prompt prior notice so that the Company may seek a protective order or other appropriate remedy and/or waive\ncompliance with the provisions of this Agreement. In the event that the Company is unable to obtain such protective order or other appropriate\nremedy, you will furnish only that portion of the Confidential Information which you are advised by a written opinion of counsel is legally\nrequired, you will give the Company written notice of the information to be disclosed as far in advance as practicable, and you will exercise\ncommercially reasonable efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded the\nConfidential Information so disclosed.\nIntersil Corporation\nJanuary 7, 2010\nPage 3\n7. Without the prior written consent of the Company, you will not, and will not encourage or assist others to, for a period of three years\n(i) propose or disclose an intent to propose any form of business combination, acquisition, restructuring, recapitalization or other similar\ntransaction relating to the Company, (ii) acquire or offer, seek, propose or agree to acquire, directly or indirectly, by purchase or otherwise, any\nvoting securities or assets or direct or indirect rights or options to acquire any voting securities or assets of the Company, (iii) make, or in any\nway participate, directly or indirectly, in any “solicitation” of any “proxy” to vote (as such terms are used in the proxy rules of the Securities\nand Exchange Commission) or seek to advise or influence any person or entity with respect to the voting of any voting securities of the\nCompany, (iv) form, join or in any way participate, directly or indirectly, in a “group” within the meaning of Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended, with respect to any voting securities of the Company, (v) enter into any discussions, negotiations,\narrangements or understandings with any third party with respect to any of the foregoing, (vi) disclose any intention, plan or arrangement\ninconsistent with the foregoing, (vii) otherwise act, alone or in concert with others, directly or indirectly, to seek control of the management,\nboard of directors, or policies of the Company, (viii) request the Company, directly or indirectly, to amend or waive any provisions of this\nparagraph.\n8. Each party hereto agrees that for a period of three years, it will not, directly or indirectly, solicit for employment or hire any employee of the\nother party hereto or any of its subsidiaries with whom it has had contact or who became known to it in connection with the evaluation of a\npossible transaction involving the Company; provided that the foregoing provision will not prevent either party from employing any such\nperson who contacts it on his or her own initiative without any direct or indirect solicitation by, or encouragement (not including a general\nsolicitation of employment not specifically directed towards employees of the Company) from, such party.\n9. Notwithstanding anything provided herein and any express or implied claim of exclusivity or proprietary rights, each party hereto hereby\nauthorizes each other party hereto (and each of their Representatives) to disclose to any and all persons, without limitation of any kind, the tax\ntreatment and tax structure of the transactions contemplated hereby and all materials of any kind (including opinions and other tax analyses)\nthat are provided to any of them relating to such tax treatment and tax structure. For purposes hereof, “tax treatment” means the purported or\nclaimed U.S. federal income tax treatment of the transaction and “tax structure” means any fact that may be relevant to understanding the\npurported or claimed U.S . federal income tax treatment of the transaction.\n10. Without impairing any other provision hereof, each party hereto will promptly advise the other party hereto of any prohibited disclosure or\nother breach of this Agreement.\n11. As to Paragraph 2 hereof, you understand and agree that money damages would not be a sufficient remedy for any breach of this Agreement by\nyou or your Representatives, and that the Company, its agents and representatives shall be entitled to specific performance and/or injunctive\nrelief as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for any such breach of this Agreement but\nshall be in addition to all other remedies available at law or in equity. Each party hereto further agree that no failure or delay by either party, its\ndirectors, officers, employees, agents or outside advisors or representatives in exercising any right, power or privilege under this Agreement\nshall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of\nany right, power or privilege under this Agreement.\n12. Nothing in this Agreement shall impose any obligation upon you or us to consummate a transaction or to enter into any discussion or\nnegotiations with respect thereto.\nIntersil Corporation\nJanuary 7, 2010\nPage 4\n13. This Agreement shall be governed by the laws of the State of California.\nIf you are in agreement with the foregoing, please sign and return the enclosed copy of this letter which will constitute our agreement with respect to\nthe subject matter of this letter as of the date first above written.\nVery truly yours,\nTechwell, Inc.\n/s/ Mark Voll\nName\nChief Financial Officer\nTitle\nAGREED AND ACCEPTED TO:\nIntersil Corporation\nBy: /s/ Jonathan A. Kennedy\nIts: Chief Financial Officer	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nJanuary 7, 2010\nIntersil Corporation\n1001 Murphy Ranch Road\nMilpitas, CA 95035\nLadies and Gentlemen:\nWe understand from Deutsche Bank Securities Inc. (“Deutsche Bank”), our financial adviser, that you may be interested in pursuing a transaction\nwith Techwell, Inc. (the “Company”) on a mutually agreeable basis. In connection with your possible interest in a transaction with the Company,\nwe propose to furnish you with certain information related to the Company (herein referred to as the “Confidential Information”). Confidential\nInformation includes not only written information but also information transferred orally, visually, electronically or by any other means. The fact that\nsuch information has been delivered to you, that such a transaction is under consideration by the Company, that discussions or negotiations have\noccurred or are occurring regarding a possible transaction involving the Company and you, and the status of any such discussions or negotiations, are\nconsidered Confidential Information for purposes of this Agreement. In consideration of our furnishing you with the Confidential Information, and\nas a condition to such disclosure, you agree as follows:\n1. The Confidential Information will be used by you solely for the purpose of your evaluation of the desirability of your entering into a\ntransaction with the Company, and for no other purpose.\n2. You shall keep all Confidential Information secret and confidential and shall not, without the prior written consent of the Company, disclose it\nto anyone except to a limited group of your own employees, directors, officers, agents and outside advisors (“Representatives”) who are\nactually engaged in, and need to know such Confidential Information to perform, the evaluation referred to above, each of whom must be\nadvised of the confidential nature of the Confidential Information and of the terms of this Agreement and must agree to abide by such terms.\nYou shall be responsible for any breach of this Agreement by any of your Representatives.\n3. Upon any termination of your evaluation of pursuing a transaction with the Company or upon notice from the Company to you (i) you will\neither destroy or return to the Company the Confidential Information which is in tangible form, including any copies which you may have\nmade, and you will destroy all abstracts, summaries thereof or references thereto in your documents, and certify to us that you have done so,\nand (ii) neither you nor your Representatives will use any of the Confidential Information with respect to, or in furtherance of, your business,\nany of their respective businesses, or in the business of anyone else, whether or not in competition with the Company, or for any other purpose\nwhatsoever. Notwithstanding the preceding sentence, one copy of Confidential Information in tangible form that has been supplied to you may\nbe retained by your Legal Department for the sole purpose of maintaining a record of Confidential Information that has been disclosed to you\npursuant to this Agreement.\nIntersil Corporation January 7, 2010 Page 2 4. Confidential Information includes all analyses, compilations, forecasts, studies or other documents prepared by you or your Representatives in\nconnection with your evaluation of pursuing a transaction with the Company. Confidential Information does not include any information which\nwas publicly available prior to your receipt of such information or thereafter became publicly available (other than as a result of disclosure by\nyou or any of your Representatives). Information shall be deemed “publicly available” if it becomes a matter of public knowledge or is\ncontained in materials available to the public or is obtained from any source other than the Company (or its directors, officers, employees,\nagents or outside advisors, including, without limitation, Deutsche Bank), provided that such source is not to your knowledge prohibited from\ndisclosing such information by a legal, contractual or fiduciary obligation to the Company and did not obtain the information from an entity or\nperson prohibited from disclosing such information by a legal, contractual or fiduciary obligation to the Company.\nYou understand that we have endeavored to include in the Confidential Information those materials which we believe to be reliable and\nrelevant for the purpose of your evaluation, but you acknowledge that neither the Company nor Deutsche Bank nor any of their respective\ndirectors, officers, employees, agents or outside advisors makes any representation or warranty as to the accuracy or completeness of the\nConfidential Information and you agree that such persons shall have no liability to you or any of your Representatives resulting from any use\nof the Confidential Information. You understand that the Confidential Information is not being furnished for use in an offer or sale of securities\nof the Company and is not designed to satisfy the requirements of federal or state securities laws in connection with any offer or sale of such\nsecurities to you.\nIn the event that you or any of your Representatives is requested in any proceeding to disclose any of the Confidential Information, you will\nprovide the Company with prompt prior notice so that the Company may seek a protective order or other appropriate remedy and/or waive\ncompliance with the provisions of this Agreement. In the event that the Company is unable to obtain such protective order or other appropriate\nremedy, you will furnish only that portion of the Confidential Information which you are advised by a written opinion of counsel is legally\nrequired, you will give the Company written notice of the information to be disclosed as far in advance as practicable, and you will exercise\ncommercially reasonable efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded the\nConfidential Information so disclosed.\nIntersil Corporation January 7, 2010 Page 3 7.\n10. 11. 12. Without the prior written consent of the Company, you will not, and will not encourage or assist others to, for a period of three years\n(i) propose or disclose an intent to propose any form of business combination, acquisition, restructuring, recapitalization or other similar\ntransaction relating to the Company, (ii) acquire or offer, seek, propose or agree to acquire, directly or indirectly, by purchase or otherwise, any\nvoting securities or assets or direct or indirect rights or options to acquire any voting securities or assets of the Company, (iii) make, or in any\nway participate, directly or indirectly, in any “solicitation” of any “proxy” to vote (as such terms are used in the proxy rules of the Securities\nand Exchange Commission) or seek to advise or influence any person or entity with respect to the voting of any voting securities of the\nCompany, (iv) form, join or in any way participate, directly or indirectly, in a “group” within the meaning of Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended, with respect to any voting securities of the Company, (v) enter into any discussions, negotiations,\narrangements or understandings with any third party with respect to any of the foregoing, (vi) disclose any intention, plan or arrangement\ninconsistent with the foregoing, (vii) otherwise act, alone or in concert with others, directly or indirectly, to seek control of the management,\nboard of directors, or policies of the Company, (viii) request the Company, directly or indirectly, to amend or waive any provisions of this\nparagraph.\nEach party hereto agrees that for a period of three years, it will not, directly or indirectly, solicit for employment or hire any employee of the\nother party hereto or any of its subsidiaries with whom it has had contact or who became known to it in connection with the evaluation of a\npossible transaction involving the Company; provided that the foregoing provision will not prevent either party from employing any such\nperson who contacts it on his or her own initiative without any direct or indirect solicitation by, or encouragement (not including a general\nsolicitation of employment not specifically directed towards employees of the Company) from, such party.\nNotwithstanding anything provided herein and any express or implied claim of exclusivity or proprietary rights, each party hereto hereby\nauthorizes each other party hereto (and each of their Representatives) to disclose to any and all persons, without limitation of any kind, the tax\ntreatment and tax structure of the transactions contemplated hereby and all materials of any kind (including opinions and other tax analyses)\nthat are provided to any of them relating to such tax treatment and tax structure. For purposes hereof, “tax treatment” means the purported or\nclaimed U.S. federal income tax treatment of the transaction and “tax structure” means any fact that may be relevant to understanding the\npurported or claimed U.S. federal income tax treatment of the transaction.\nWithout impairing any other provision hereof, each party hereto will promptly advise the other party hereto of any prohibited disclosure or\nother breach of this Agreement.\nAs to Paragraph 2 hereof, you understand and agree that money damages would not be a sufficient remedy for any breach of this Agreement by\nyou or your Representatives, and that the Company, its agents and representatives shall be entitled to specific performance and/or injunctive\nrelief as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for any such breach of this Agreement but\nshall be in addition to all other remedies available at law or in equity. Each party hereto further agree that no failure or delay by either party, its\ndirectors, officers, employees, agents or outside advisors or representatives in exercising any right, power or privilege under this Agreement\nshall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of\nany right, power or privilege under this Agreement.\nNothing in this Agreement shall impose any obligation upon you or us to consummate a transaction or to enter into any discussion or\nnegotiations with respect thereto.\nIntersil Corporation\nJanuary 7, 2010\nPage 4\n13. This Agreement shall be governed by the laws of the State of California.\nIf you are in agreement with the foregoing, please sign and return the enclosed copy of this letter which will constitute our agreement with respect to\nthe subject matter of this letter as of the date first above written.\nVery truly yours,\nTechwell, Inc.\n/s/ Mark Voll\nName\nChief Financial Officer\nTitle\nAGREED AND ACCEPTED TO:\nIntersil Corporation\nBy: /s/ Jonathan A. Kennedy\nIts: Chief Financial Officer	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nJanuary 7, 2010\nIntersil Corporation\n1001 Murphy Ranch Road\nMilpitas, CA 95035\nLadies and Gentlemen:\nWe understand from Deutsche Bank Securities Inc. ("Deutsche Bank"), our financial adviser, that you may be interested in pursuing a transaction\nwith Techwell, Inc. (the "Company") on a mutually agreeable basis. In connection with your possible interest in a transaction with the Company,\nwe propose to furnish you with certain information related to the Company (herein referred to as the "Confidential Information"). Confidential\nInformation includes not only written information but also information transferred orally, visually, electronically or by any other means. The fact that\nsuch information has been delivered to you, that such a transaction is under consideration by the Company, that discussions or negotiations have\noccurred or are occurring regarding a possible transaction involving the Company and you, and the status of any such discussions or negotiations,\nare\nconsidered Confidential Information for purposes of this Agreement. In consideration of our furnishing you with the Confidential Information, and\nas a condition to such disclosure, you agree as follows:\n1.\nThe Confidential Information will be used by you solely for the purpose of your evaluation of the desirability of your entering into\na\ntransaction with the Company, and for no other purpose.\n2.\nYou shall keep all Confidential Information secret and confidential and shall not, without the prior written consent of the Company, disclose it\nto anyone except to a limited group of your own employees, directors, officers, agents and outside advisors ("Representatives") who are\nactually engaged in, and need to know such Confidential Information to perform, the evaluation referred to above, each of whom must be\nadvised of the confidential nature of the Confidential Information and of the terms of this Agreement and must agree to abide by such terms.\nYou shal be responsible for any breach of this Agreement by any of your Representatives.\n3.\nUpon any termination of your evaluation of pursuing a transaction with the Company or upon notice from the Company to you (i) you will\neither destroy or return to the Company the Confidential Information which is in tangible form, including any copies which you may have\nmade, and you will destroy all abstracts, summaries thereof or references thereto in your documents, and certify to us that you have done so,\nand (ii) neither you nor your Representatives will use any of the Confidential Information with respect to, or in furtherance of, your business,\nany of their respective businesses, or in the business of anyone else, whether or not in competition with the Company, or for any other purpose\nwhatsoever. Notwithstanding the preceding sentence, one copy of Confidential Information in tangible form that has been supplied to you may\nbe retained by your Legal Department for the sole purpose of maintaining a record of Confidential Information that has been disclosed to you\npursuant to this Agreement.\nIntersil Corporation\nJanuary 7, 2010\nPage 2\n4.\nConfidential Information includes all analyses, compilations, forecasts, studies or other documents prepared by you or your Representatives in\nconnection with your evaluation of pursuing a transaction with the Company. Confidential Information does not include any information\nwhich\nwas publicly available prior to your receipt of such information or thereafter became publicly available (other than as a result of disclosure by\nyou or any of your Representatives). Information shall be deemed "publicly available" if it becomes a matter of public knowledge or is\ncontained in materials available to the public or is obtained from any source other than the Company (or its directors, officers, employees,\nagents or outside advisors, including, without limitation, Deutsche Bank), provided that such source is not to your knowledge prohibited from\ndisclosing such information by a legal, contractual or fiduciary obligation to the Company and did not obtain the information from an entity or\nperson prohibited from disclosing such information by a legal, contractual or fiduciary obligation to the Company.\n5.\nYou understand that we have endeavored to include in the Confidential Information those materials which we believe to be reliable and\nrelevant for the purpose of your evaluation, but you acknowledge that neither the Company nor Deutsche Bank nor any of their respective\ndirectors, officers, employees, agents or outside advisors makes any representation or warranty as to the accuracy or completeness of the\nConfidential Information and you agree that such persons shall have no liability to you or any of your Representatives resulting from any use\nof\nthe Confidential Information. You understand that the Confidential Information is not being furnished for use in an offer or sale of securities\nof the Company and is not designed to satisfy the requirements of federal or state securities laws in connection with any offer or sale of such\nsecurities to you.\n6.\nIn the event that you or any of your Representatives is requested in any proceeding to disclose any of the Confidential Information, you will\nprovide the Company with prompt prior notice so that the Company may seek a protective order or other appropriate remedy and/or waive\ncompliance with the provisions of this Agreement. In the event that the Company is unable to obtain such protective order or other appropriate\nremedy, you will furnish only that portion of the Confidential Information which you are advised by a written opinion of counsel is legally\nrequired, you will give the Company written notice of the information to be disclosed as far in advance as practicable, and you will exercise\ncommercially reasonable efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded the\nConfidential Information so disclosed.\nIntersil Corporation\nJanuary 7, 2010\nPage 3\n7.\nWithout the prior written consent of the Company, you will not, and will not encourage or assist others to, for a period of three years\n(i) propose or disclose an intent to propose any form of business combination, acquisition, restructuring, recapitalization or other similar\ntransaction relating to the Company, (ii) acquire or offer, seek, propose or agree to acquire, directly or indirectly, by purchase or otherwise, any\nvoting securities or assets or direct or indirect rights or options to acquire any voting securities or assets of the Company, (iii) make, or in any\nway\nparticipate,\ndirectly\nor\nindirectly,\nin\nany\n"'solicitation"\nof\nany\n"proxy"\nto\nvote\n(as\nsuch\nterms\nare\nused\nin\nthe\nproxy\nrules\nof\nthe\nSecurities\nand Exchange Commission) or seek to advise or influence any person or entity with respect to the voting of any voting securities of the\nCompany, (iv) form, join or in any way participate, directly or indirectly, in a "group" within the meaning of Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended, with respect to any voting securities of the Company, (v) enter into any discussions, negotiations,\narrangements or understandings with any third party with respect to any of the foregoing, (vi) disclose any intention, plan or arrangement\ninconsistent with the foregoing, (vii) otherwise act, alone or in concert with others, directly or indirectly, to seek control of the management,\nboard of directors, or policies of the Company, (viii) request the Company, directly or indirectly, to amend or waive any provisions of this\nparagraph.\n8.\nEach party hereto agrees that for a period of three years, it will not, directly or indirectly, solicit for employment or hire any employee of the\nother party hereto or any of its subsidiaries with whom it has had contact or who became known to it in connection with the evaluation of a\npossible transaction involving the Company; provided that the foregoing provision will not prevent either party from employing any such\nperson who contacts it on his or her own initiative without any direct or indirect solicitation by, or encouragement (not including a general\nsolicitation of employment not specifically directed towards employees of the Company) from, such party.\n9.\nNotwithstanding anything provided herein and any express or implied claim of exclusivity or proprietary rights, each party hereto hereby\nauthorizes each other party hereto (and each of their Representatives) to disclose to any and all persons, without limitation of any kind, the tax\ntreatment and tax structure of the transactions contemplated hereby and all materials of any kind (including opinions and other tax analyses)\nthat are provided to any of them relating to such tax treatment and tax structure. For purposes hereof, "tax treatment" means the purported or\nclaimed U.S. federal income tax treatment of the transaction and "tax structure" means any fact that may be relevant to understanding the\npurported or claimed U.S. federal income tax treatment of the transaction.\n10. Without impairing any other provision hereof, each party hereto will promptly advise the other party hereto of any prohibited disclosure or\nother breach of this Agreement.\n11.\nAs to Paragraph 2 hereof, you understand and agree that money damages would not be a sufficient remedy for any breach of this Agreement by\nyou or your Representatives, and that the Company, its agents and representatives shall be entitled to specific performance and/or injunctive\nrelief as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for any such breach of this Agreement but\nshall be in addition to all other remedies available at law or in equity. Each party hereto further agree that no failure or delay by either party, its\ndirectors, officers, employees, agents or outside advisors or representatives in exercising any right, power or privilege under this Agreement\nshall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of\nany right, power or privilege under this Agreement.\n12.\nNothing in this Agreement shall impose any obligation upon you or us to consummate a transaction or to enter into any discussion or\nnegotiations with respect thereto.\nIntersil Corporation\nJanuary 7, 2010\nPage 4\n13.\nThis Agreement shall be governed by the laws of the State of California.\nIf you are in agreement with the foregoing, please sign and return the enclosed copy of this letter which will constitute our agreement with respect to\nthe subject matter of this letter as of the date first above written.\nVery truly yours,\nTechwell, Inc.\n/s/ Mark Voll\nName\nChief Financial Officer\nTitle\nAGREED AND ACCEPTED TO:\nIntersil Corporation\nBy: /s/ Jonathan A. Kennedy\nIts: Chief Financial Officer	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nJanuary 7, 2010\nIntersil Corporation\n1001 Murphy Ranch Road\nMilpitas, CA 95035\nLadies and Gentlemen:\nWe understand from Deutsche Bank Securities Inc. (“Deutsche Bank”), our financial adviser, that you may be interested in pursuing a transaction\nwith Techwell, Inc. (the “Company”) on a mutually agreeable basis. In connection with your possible interest in a transaction with the Company,\nwe propose to furnish you with certain information related to the Company (herein referred to as the “Confidential Information”). Confidential\nInformation includes not only written information but also information transferred orally, visually, electronically or by any other means. The fact that\nsuch information has been delivered to you, that such a transaction is under consideration by the Company, that discussions or negotiations have\noccurred or are occurring regarding a possible transaction involving the Company and you, and the status of any such discussions or negotiations, are\nconsidered Confidential Information for purposes of this Agreement. In consideration of our furnishing you with the Confidential Information, and\nas a condition to such disclosure, you agree as follows:\n1. The Confidential Information will be used by you solely for the purpose of your evaluation of the desirability of your entering into a\ntransaction with the Company, and for no other purpose.\n2. You shall keep all Confidential Information secret and confidential and shall not, without the prior written consent of the Company, disclose it\nto anyone except to a limited group of your own employees, directors, officers, agents and outside advisors (“Representatives”) who are\nactually engaged in, and need to know such Confidential Information to perform, the evaluation referred to above, each of whom must be\nadvised of the confidential nature of the Confidential Information and of the terms of this Agreement and must agree to abide by such terms.\nYou shall be responsible for any breach of this Agreement by any of your Representatives.\n3. Upon any termination of your evaluation of pursuing a transaction with the Company or upon notice from the Company to you (i) you will\neither destroy or return to the Company the Confidential Information which is in tangible form, including any copies which you may have\nmade, and you will destroy all abstracts, summaries thereof or references thereto in your documents, and certify to us that you have done so,\nand (ii) neither you nor your Representatives will use any of the Confidential Information with respect to, or in furtherance of, your business,\nany of their respective businesses, or in the business of anyone else, whether or not in competition with the Company, or for any other purpose\nwhatsoever. Notwithstanding the preceding sentence, one copy of Confidential Information in tangible form that has been supplied to you may\nbe retained by your Legal Department for the sole purpose of maintaining a record of Confidential Information that has been disclosed to you\npursuant to this Agreement.\nIntersil Corporation\nJanuary 7, 2010\nPage 2\n4. Confidential Information includes all analyses, compilations, forecasts, studies or other documents prepared by you or your Representatives in\nconnection with your evaluation of pursuing a transaction with the Company. Confidential Information does not include any information which\nwas publicly available prior to your receipt of such information or thereafter became publicly available (other than as a result of disclosure by\nyou or any of your Representatives). Information shall be deemed “publicly available” if it becomes a matter of public knowledge or is\ncontained in materials available to the public or is obtained from any source other than the Company (or its directors, officers, employees,\nagents or outside advisors, including, without limitation, Deutsche Bank), provided that such source is not to your knowledge prohibited from\ndisclosing such information by a legal, contractual or fiduciary obligation to the Company and did not obtain the information from an entity or\nperson prohibited from disclosing such information by a legal, contractual or fiduciary obligation to the Company.\n5. You understand that we have endeavored to include in the Confidential Information those materials which we believe to be reliable and\nrelevant for the purpose of your evaluation, but you acknowledge that neither the Company nor Deutsche Bank nor any of their respective\ndirectors, officers, employees, agents or outside advisors makes any representation or warranty as to the accuracy or completeness of the\nConfidential Information and you agree that such persons shall have no liability to you or any of your Representatives resulting from any use\nof the Confidential Information. You understand that the Confidential Information is not being furnished for use in an offer or sale of securities\nof the Company and is not designed to satisfy the requirements of federal or state securities laws in connection with any offer or sale of such\nsecurities to you.\n6. In the event that you or any of your Representatives is requested in any proceeding to disclose any of the Confidential Information, you will\nprovide the Company with prompt prior notice so that the Company may seek a protective order or other appropriate remedy and/or waive\ncompliance with the provisions of this Agreement. In the event that the Company is unable to obtain such protective order or other appropriate\nremedy, you will furnish only that portion of the Confidential Information which you are advised by a written opinion of counsel is legally\nrequired, you will give the Company written notice of the information to be disclosed as far in advance as practicable, and you will exercise\ncommercially reasonable efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded the\nConfidential Information so disclosed.\nIntersil Corporation\nJanuary 7, 2010\nPage 3\n7. Without the prior written consent of the Company, you will not, and will not encourage or assist others to, for a period of three years\n(i) propose or disclose an intent to propose any form of business combination, acquisition, restructuring, recapitalization or other similar\ntransaction relating to the Company, (ii) acquire or offer, seek, propose or agree to acquire, directly or indirectly, by purchase or otherwise, any\nvoting securities or assets or direct or indirect rights or options to acquire any voting securities or assets of the Company, (iii) make, or in any\nway participate, directly or indirectly, in any “solicitation” of any “proxy” to vote (as such terms are used in the proxy rules of the Securities\nand Exchange Commission) or seek to advise or influence any person or entity with respect to the voting of any voting securities of the\nCompany, (iv) form, join or in any way participate, directly or indirectly, in a “group” within the meaning of Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended, with respect to any voting securities of the Company, (v) enter into any discussions, negotiations,\narrangements or understandings with any third party with respect to any of the foregoing, (vi) disclose any intention, plan or arrangement\ninconsistent with the foregoing, (vii) otherwise act, alone or in concert with others, directly or indirectly, to seek control of the management,\nboard of directors, or policies of the Company, (viii) request the Company, directly or indirectly, to amend or waive any provisions of this\nparagraph.\n8. Each party hereto agrees that for a period of three years, it will not, directly or indirectly, solicit for employment or hire any employee of the\nother party hereto or any of its subsidiaries with whom it has had contact or who became known to it in connection with the evaluation of a\npossible transaction involving the Company; provided that the foregoing provision will not prevent either party from employing any such\nperson who contacts it on his or her own initiative without any direct or indirect solicitation by, or encouragement (not including a general\nsolicitation of employment not specifically directed towards employees of the Company) from, such party.\n9. Notwithstanding anything provided herein and any express or implied claim of exclusivity or proprietary rights, each party hereto hereby\nauthorizes each other party hereto (and each of their Representatives) to disclose to any and all persons, without limitation of any kind, the tax\ntreatment and tax structure of the transactions contemplated hereby and all materials of any kind (including opinions and other tax analyses)\nthat are provided to any of them relating to such tax treatment and tax structure. For purposes hereof, “tax treatment” means the purported or\nclaimed U.S. federal income tax treatment of the transaction and “tax structure” means any fact that may be relevant to understanding the\npurported or claimed U.S . federal income tax treatment of the transaction.\n10. Without impairing any other provision hereof, each party hereto will promptly advise the other party hereto of any prohibited disclosure or\nother breach of this Agreement.\n11. As to Paragraph 2 hereof, you understand and agree that money damages would not be a sufficient remedy for any breach of this Agreement by\nyou or your Representatives, and that the Company, its agents and representatives shall be entitled to specific performance and/or injunctive\nrelief as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for any such breach of this Agreement but\nshall be in addition to all other remedies available at law or in equity. Each party hereto further agree that no failure or delay by either party, its\ndirectors, officers, employees, agents or outside advisors or representatives in exercising any right, power or privilege under this Agreement\nshall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of\nany right, power or privilege under this Agreement.\n12. Nothing in this Agreement shall impose any obligation upon you or us to consummate a transaction or to enter into any discussion or\nnegotiations with respect thereto.\nIntersil Corporation\nJanuary 7, 2010\nPage 4\n13. This Agreement shall be governed by the laws of the State of California.\nIf you are in agreement with the foregoing, please sign and return the enclosed copy of this letter which will constitute our agreement with respect to\nthe subject matter of this letter as of the date first above written.\nVery truly yours,\nTechwell, Inc.\n/s/ Mark Voll\nName\nChief Financial Officer\nTitle\nAGREED AND ACCEPTED TO:\nIntersil Corporation\nBy: /s/ Jonathan A. Kennedy\nIts: Chief Financial Officer
+d4e4bca7fd106026b6e128d21eccfbeb.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 8 d407949dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nConfidentiality Agreement\nThis Confidentiality Agreement (“Agreement”) is entered into between Related Companies, 60 Columbus Circle, New York, NY 10023 and\nKSW, Inc., (“KSW”), located at 37-16 23 Street, Long Island City, NY 11101 as of the date set forth on the signature page hereto.\nWHEREAS, the Parties intend to discuss a possible transaction or business arrangement between the parties and certain third parties, in which\neither has an interest or is affiliated.\nNOW, THEREFORE, it is therefore agreed that:\n1. Each party will hold in complete confidence any information disclosed by the other party (collectively, the “Information”), and will\nnot, directly or indirectly, reveal, disseminate or disclose this information to any person other than to such of their respective officers, directors,\nemployees, attorneys, advisors or representatives as need to know such information in the ordinary course of business in connection with any\nproposed transaction or arrangement (such persons being referred to collectively as the Recipient’s “Representatives”), who are informed of the\nconfidential nature of the Information and who agree to be bound by and act only in accordance with the terms and conditions of this Agreement to\nthe same extent as if they were parties hereto. The provisions of this Agreement shall be inoperative as to any portion of the Information which (i) is\nor becomes generally available to the public other than as a result of a disclosure by either party or its Representatives; (ii) becomes available on a\nnon-confidential basis and not in contravention of applicable law from a source which is not bound by a confidential relationship with or obligation\nof confidentiality to either party or by a confidentiality or other similar agreement.\n2. If any breach of this Agreement occurs, either party would be irreparably and immediately harmed and could not be made whole by\nmonetary damages. Accordingly, in addition to any other remedy to which it may be entitled in law or equity, either party shall be entitled to an\ninjunction or injunctions to prevent breaches of this Agreement and/or to compel specific performance of this Agreement and the other company will\nnot oppose the granting of such relief.\n3. In the event either party wishes to disclose the information to a third party, it may do so only with the written consent of the other\nparty and after the third party executes a Confidentiality Agreement similar to this Agreement.\n4. This Agreement shall be binding on and inure to the benefit of the parties hereto, their parents, subsidiaries, affiliates, successors and\nassigns. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard to its rules of\nconflicts of laws.\nIN WITNESS WHEREOF, the parties hereto, being duly authorized, have executed and delivered this Agreement on the date indicated below.\nTHE RELATED COMPANIES, L.P.\nKSW, INC.\nBy: /s/ Richard O’Toole\nBy: /s/ Floyd Warkol\nName: Richard O’Toole\nName: Floyd Warkol\nTitle: EVP\nTitle: CEO\nDated: June 22, 2012\nrd	EX-99.(D)(3) 8 d407949dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nConfidentiality Agreement\nThis Confidentiality Agreement (“Agreement”) is entered into between Related Companies, 60 Columbus Circle, New York, NY 10023 and\nKSW, Inc., (“KSW?), located at 37-16 23rd Street, Long Island City, NY 11101 as of the date set forth on the signature page hereto.\nWHEREAS, the Parties intend to discuss a possible transaction or business arrangement between the parties and certain third parties, in which\neither has an interest or is affiliated.\nNOW, THEREFORE, it is therefore agreed that:\n1. Each party will hold in complete confidence any information disclosed by the other party (collectively, the “Information™), and will\nnot, directly or indirectly, reveal, disseminate or disclose this information to any person other than to such of their respective officers, directors,\nemployees, attorneys, advisors or representatives as need to know such information in the ordinary course of business in connection with any\nproposed transaction or arrangement (such persons being referred to collectively as the Recipient’s “Representatives”), who are informed of the\nconfidential nature of the Information and who agree to be bound by and act only in accordance with the terms and conditions of this Agreement to\nthe same extent as if they were parties hereto. The provisions of this Agreement shall be inoperative as to any portion of the Information which (i) is\nor becomes generally available to the public other than as a result of a disclosure by either party or its Representatives; (ii) becomes available on a\nnon-confidential basis and not in contravention of applicable law from a source which is not bound by a confidential relationship with or obligation\nof confidentiality to either party or by a confidentiality or other similar agreement.\n2. If any breach of this Agreement occurs, either party would be irreparably and immediately harmed and could not be made whole by\nmonetary damages. Accordingly, in addition to any other remedy to which it may be entitled in law or equity, either party shall be entitled to an\ninjunction or injunctions to prevent breaches of this Agreement and/or to compel specific performance of this Agreement and the other company will\nnot oppose the granting of such relief.\n3. In the event either party wishes to disclose the information to a third party, it may do so only with the written consent of the other\nparty and after the third party executes a Confidentiality Agreement similar to this Agreement.\n4. This Agreement shall be binding on and inure to the benefit of the parties hereto, their parents, subsidiaries, affiliates, successors and\nassigns. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard to its rules of\nconflicts of laws.\nIN WITNESS WHEREOF, the parties hereto, being duly authorized, have executed and delivered this Agreement on the date indicated below.\nTHE RELATED COMPANIES, L.P. KSW, INC.\nBy: /s/ Richard O’Toole By: /s/ Floyd Warkol\nName: Richard O’Toole Name: Floyd Warkol\nTitle: EVP Title: CEO\nDated: June 22, 2012	EX-99.(D)(3) 8 d407949dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nConfidentiality Agreement\nThis Confidentiality Agreement ("Agreement") is entered into between Related Companies, 60 Columbus Circle, New York, NY 10023 and\nKSW, Inc., ("KSW"), located at 37-16 23rd Street, Long Island City, NY 11101 as of the date set forth on the signature page hereto.\nWHEREAS, the Parties intend to discuss a possible transaction or business arrangement between the parties and certain third parties, in which\neither has an interest or is affiliated.\nNOW, THEREFORE, it is therefore agreed that:\n1. Each party will hold in complete confidence any information disclosed by the other party (collectively, the "Information"), and will\nnot, directly or indirectly, reveal, disseminate or disclose this information to any person other than to such of their respective officers, directors,\nemployees, attorneys, advisors or representatives as need to know such information in the ordinary course of business in connection with any\nproposed transaction or arrangement (such persons being referred to collectively as the Recipient's "Representatives"), who are informed of the\nconfidential nature of the Information and who agree to be bound by and act only in accordance with the terms and conditions of this Agreement to\nthe same extent as if they were parties hereto. The provisions of this Agreement shall be inoperative as to any portion of the Information which (i)\nis\nor becomes generally available to the public other than as a result of a disclosure by either party or its Representatives; (ii) becomes available on a\nnon-confidential basis and not in contravention of applicable law from a source which is not bound by a confidential relationship with or obligation\nof confidentiality to either party or by a confidentiality or other similar agreement.\n2. If any breach of this Agreement occurs, either party would be irreparably and immediately harmed and could not be made whole\nby\nmonetary damages. Accordingly, in addition to any other remedy to which it may be entitled in law or equity, either party shall be entitled to an\ninjunction or injunctions to prevent breaches of this Agreement and/or to compel specific performance of this Agreement and the other company will\nnot oppose the granting of such relief.\n3. In the event either party wishes to disclose the information to a third party, it may do so only with the written consent of the other\nparty and after the third party executes a Confidentiality Agreement similar to this Agreement.\n4. This Agreement shall be binding on and inure to the benefit of the parties hereto, their parents, subsidiaries, affiliates, successors and\nassigns. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard to its rules of\nconflicts of laws.\nIN WITNESS WHEREOF, the parties hereto, being duly authorized, have executed and delivered this Agreement on the date indicated below.\nTHE RELATED COMPANIES, L.P.\nKSW, INC.\nBy: /s/ Richard O'Toole\nBy: /s/ Floyd Warkol\nName: Richard O'Toole\nName: Floyd Warkol\nTitle: EVP\nTitle: CEO\nDated: June 22, 2012	EX-99.(D)(3) 8 d407949dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nConfidentiality Agreement\nThis Confidentiality Agreement (“Agreement”) is entered into between Related Companies, 60 Columbus Circle, New York, NY 10023 and\nKSW, Inc., (“KSW”), located at 37-16 23 Street, Long Island City, NY 11101 as of the date set forth on the signature page hereto.\nWHEREAS, the Parties intend to discuss a possible transaction or business arrangement between the parties and certain third parties, in which\neither has an interest or is affiliated.\nNOW, THEREFORE, it is therefore agreed that:\n1. Each party will hold in complete confidence any information disclosed by the other party (collectively, the “Information”), and will\nnot, directly or indirectly, reveal, disseminate or disclose this information to any person other than to such of their respective officers, directors,\nemployees, attorneys, advisors or representatives as need to know such information in the ordinary course of business in connection with any\nproposed transaction or arrangement (such persons being referred to collectively as the Recipient’s “Representatives”), who are informed of the\nconfidential nature of the Information and who agree to be bound by and act only in accordance with the terms and conditions of this Agreement to\nthe same extent as if they were parties hereto. The provisions of this Agreement shall be inoperative as to any portion of the Information which (i) is\nor becomes generally available to the public other than as a result of a disclosure by either party or its Representatives; (ii) becomes available on a\nnon-confidential basis and not in contravention of applicable law from a source which is not bound by a confidential relationship with or obligation\nof confidentiality to either party or by a confidentiality or other similar agreement.\n2. If any breach of this Agreement occurs, either party would be irreparably and immediately harmed and could not be made whole by\nmonetary damages. Accordingly, in addition to any other remedy to which it may be entitled in law or equity, either party shall be entitled to an\ninjunction or injunctions to prevent breaches of this Agreement and/or to compel specific performance of this Agreement and the other company will\nnot oppose the granting of such relief.\n3. In the event either party wishes to disclose the information to a third party, it may do so only with the written consent of the other\nparty and after the third party executes a Confidentiality Agreement similar to this Agreement.\n4. This Agreement shall be binding on and inure to the benefit of the parties hereto, their parents, subsidiaries, affiliates, successors and\nassigns. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard to its rules of\nconflicts of laws.\nIN WITNESS WHEREOF, the parties hereto, being duly authorized, have executed and delivered this Agreement on the date indicated below.\nTHE RELATED COMPANIES, L.P.\nKSW, INC.\nBy: /s/ Richard O’Toole\nBy: /s/ Floyd Warkol\nName: Richard O’Toole\nName: Floyd Warkol\nTitle: EVP\nTitle: CEO\nDated: June 22, 2012\nrd
+d50e7765801e0f6498b3621adbcb8e31.pdf	effective_date jurisdiction party term	EX-10 10 chhb8kshareexchange103confid.htm\nAs a supplementary part of Employment Contract of the company, the NON-\nCOMPETITION/ NON-DISCLOSURE Agreement only applies to those employees\nwho have a significant responsibility in areas of R&D, manufacturing, quality\nassurance, marketing, accounting, and relevant GMP supervision .The other ordinary\nstaff are not subject to signing of the attached rules.\nNON-DISCLOSURE\nNON-COMPETITION\nAgreement\nParty A: JGAD company\nParty B: (employee)\nAccording to the related laws, this agreement is made by and between the two parties\nthrough mutual consultation, the terms and conditions as follows:\n1. Right and Obligation of Party B:\n1-1.Party B is entitled to no-disclosure of the company’s confidential, relating to\ntechnical processes, formulae, machines, Business mode, suppliers of raw material,\ndistributors, marketing, products in R&D, financial information, and relevant GMP\ndocument. Party B hereby agrees not to disclose to third party at any time, either\nintentionally or inadvertently, except approval by Party A according to the\nrequirement of work.\nOnly authorized officials of the company are permitted to respond to inquiries for\ncompany information from media, governments, the financial community, and others.\n1-2.If there would be some achievements for Intellectual Property Right, which is\nrelated with the Party B’s employment here, Party B agrees that such application\nshould be done at the name of the company.\n1-3.Party B shall not engage in any business which is competitive with Party A, no\nmatter for third entity or for Party B oneself.\n1-4. After the termination of employment of Party B, Party B shall continue to be\nbound by the terms of the confidentiality provisions for two years from the date of\ntermination, including not to be engaged in a company which is directly competitive\nwith Party A in the same products either being marketed or in development.\n2. Right and obligation of Party A\nDuring the two years beginning from the termination of Party B’s employment, Party\nA is responsible for paying Party B the relevant compensation monthly. The standards\nare based on Party B’ individual salary, except for original bonus and benefits.\n3. Liability for Breach of the Agreement\nAny act of breach of contract committed shall be dealt with in accordance with the\nrelevant regulations or laws in force at the time when such act is committed.\nIf the reconciliation couldn’t be made between the both sides, when dispute occurs,\nthe arbitration or resolution by legal procedure is available.\n(1). Both sides agree to arbitrate it by the Dalian Committee of Labor Arbitration, or\n(2). Both parties agree to sue the lawsuit in the court of city where the contract is\nsigned or implemented.\nParty A:\nParty B:\nDalian Jingang-Andi Bio-Products Co.,Ltd.\nSignature:\nDate:\nDate:	EX-10 10 chhb8kshareexchange103confid.htm\nAs a supplementary part of Employment Contract of the company, the NON-\nCOMPETITION/ NON-DISCLOSURE Agreement only applies to those employees\nwho have a significant responsibility in areas of R&D, manufacturing, quality\nassurance, marketing, accounting, and relevant GMP supervision .The other ordinary\nstaff are not subject to signing of the attached rules.\nNON-DISCLOSURE\nNON-COMPETITION\nAgreement\nParty A: JGAD company\nParty B: (employee)\nAccording to the related laws, this agreement is made by and between the two parties\nthrough mutual consultation, the terms and conditions as follows:\n1. Right and Obligation of Party B:\n1-1.Party B is entitled to no-disclosure of the company’s confidential, relating to\ntechnical processes, formulae, machines, Business mode, suppliers of raw material,\ndistributors, marketing, products in R&D, financial information, and relevant GMP\ndocument. Party B hereby agrees not to disclose to third party at any time, either\nintentionally or inadvertently, except approval by Party A according to the\nrequirement of work.\nOnly authorized officials of the company are permitted to respond to inquiries for\ncompany information from media, governments, the financial community, and others.\n1-2.If there would be some achievements for Intellectual Property Right, which is\nrelated with the Party B’s employment here, Party B agrees that such application\nshould be done at the name of the company.\n1-3.Party B shall not engage in any business which is competitive with Party A, no\nmatter for third entity or for Party B oneself.\n1-4. After the termination of employment of Party B, Party B shall continue to be\nbound by the terms of the confidentiality provisions for two years from the date of\ntermination, including not to be engaged in a company which is directly competitive\nwith Party A in the same products either being marketed or in development.\n2. Right and obligation of Party A\nDuring the two years beginning from the termination of Party B’s employment, Party\nA is responsible for paying Party B the relevant compensation monthly. The standards\nare based on Party B’ individual salary, except for original bonus and benefits.\n3. Liability for Breach of the Agreement\nAny act of breach of contract committed shall be dealt with in accordance with the\nrelevant regulations or laws in force at the time when such act is committed.\nIf the reconciliation couldn’t be made between the both sides, when dispute occurs,\nthe arbitration or resolution by legal procedure is available.\n(1). Both sides agree to arbitrate it by the Dalian Committee of Labor Arbitration, or\n(2). Both parties agree to sue the lawsuit in the court of city where the contract is\nsigned or implemented.\nParty A: Party B:\nDalian Jingang-Andi Bio-Products Co.,Ltd. Signature:\nDate: Date:	EX-10 10 chhb8kshareexchange103c\nAs a supplementary part of Employment Contract of the company, the NON-\nCOMPETITION/ NON-DISCLOSURE Agreement only applies to those employees\nwho have a significant responsibility in areas of R&D, manufacturing, quality\nassurance, marketing, accounting, and relevant GMP supervision .The other ordinary\nstaff are not subject to signing of the attached rules.\nNON-DISCLOSURE\nNON-COMPETITION\nAgreement\nParty A: JGAD company\nParty B: (employee)\nAccording to the related laws, this agreement is made by and between the two parties\nthrough mutual consultation, the terms and conditions as follows:\n1. Right and Obligation of Party B:\n-1.Party B is entitled to no-disclosure of the company's confidential, relating to\ntechnical processes, formulae, machines, Business mode, suppliers of raw material,\ndistributors, marketing, products in R&D, financial information, and relevant GMP\ndocument. Party B hereby agrees not to disclose to third party at any time, either\nintentionally or inadvertently, except approval by Party A according to the\nrequirement of work.\nOnly authorized officials of the company are permitted to respond to inquiries for\ncompany information from media, governments, the financial community, and others.\n1-2.If there would be some achievements for Intellectual Property Right, which is\nrelated with the Party B's employment here, Party B agrees that such application\nshould be done at the name of the company.\n1-3.Party B shall not engage in any business which is competitive with Party A, no\nmatter for third entity or for Party B oneself.\n1-4. After the termination of employment of Party B, Party B shall continue to be\nbound by the terms of the confidentiality provisions for two years from the date of\ntermination, including not to be engaged in a company which is directly competitive\nwith Party A in the same products either being marketed or in development.\n2. Right and obligation of Party A\nDuring the two years beginning from the termination of Party B's employment, Party\nA is responsible for paying Party B the relevant compensation monthly. The standards\nare based on Party B' individual salary, except for original bonus and benefits.\n3. Liability for Breach of the Agreement\nAny act of breach of contract committed shall be dealt with in accordance with the\nrelevant regulations or laws in force at the time when such act is committed.\nIf the reconciliation couldn't be made between the both sides, when dispute occurs,\nthe arbitration or resolution by legal procedure is available.\n(1). Both sides agree to arbitrate it by the Dalian Committee of Labor Arbitration, or\n(2). Both parties agree to sue the lawsuit in the court of city where the contract is\nsigned or implemented.\nParty A:\nParty B:\nDalian Jingang-And Bio-Products Co.,Ltd.\nSignature:\nDate:\nDate:	EX-10 10 chhb8kshareexchange103confid.htm\nAs a supplementary part of Employment Contract of the company, the NON-\nCOMPETITION/ NON-DISCLOSURE Agreement only applies to those employees\nwho have a significant responsibility in areas of R&D, manufacturing, quality\nassurance, marketing, accounting, and relevant GMP supervision .The other ordinary\nstaff are not subject to signing of the attached rules.\nNON-DISCLOSURE\nNON-COMPETITION\nAgreement\nParty A: JGAD company\nParty B: (employee)\nAccording to the related laws, this agreement is made by and between the two parties\nthrough mutual consultation, the terms and conditions as follows:\n1. Right and Obligation of Party B:\n1-1.Party B is entitled to no-disclosure of the company’s confidential, relating to\ntechnical processes, formulae, machines, Business mode, suppliers of raw material,\ndistributors, marketing, products in R&D, financial information, and relevant GMP\ndocument. Party B hereby agrees not to disclose to third party at any time, either\nintentionally or inadvertently, except approval by Party A according to the\nrequirement of work.\nOnly authorized officials of the company are permitted to respond to inquiries for\ncompany information from media, governments, the financial community, and others.\n1-2.If there would be some achievements for Intellectual Property Right, which is\nrelated with the Party B’s employment here, Party B agrees that such application\nshould be done at the name of the company.\n1-3.Party B shall not engage in any business which is competitive with Party A, no\nmatter for third entity or for Party B oneself.\n1-4. After the termination of employment of Party B, Party B shall continue to be\nbound by the terms of the confidentiality provisions for two years from the date of\ntermination, including not to be engaged in a company which is directly competitive\nwith Party A in the same products either being marketed or in development.\n2. Right and obligation of Party A\nDuring the two years beginning from the termination of Party B’s employment, Party\nA is responsible for paying Party B the relevant compensation monthly. The standards\nare based on Party B’ individual salary, except for original bonus and benefits.\n3. Liability for Breach of the Agreement\nAny act of breach of contract committed shall be dealt with in accordance with the\nrelevant regulations or laws in force at the time when such act is committed.\nIf the reconciliation couldn’t be made between the both sides, when dispute occurs,\nthe arbitration or resolution by legal procedure is available.\n(1). Both sides agree to arbitrate it by the Dalian Committee of Labor Arbitration, or\n(2). Both parties agree to sue the lawsuit in the court of city where the contract is\nsigned or implemented.\nParty A:\nParty B:\nDalian Jingang-Andi Bio-Products Co.,Ltd.\nSignature:\nDate:\nDate:
+d5d5a179035c14cdc340ef96e0080a7a.pdf	effective_date jurisdiction party term	EX-99.(D)(4) 10 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is made as of June 6, 2010, between General Electric Company, a New York corporation\n(“GE”), and Clarient, Inc. with reference to the following background.\nA. The parties have engaged in and expect to continue to engage in discussions involving the exploration and evaluation of a potential\nrelationship or transaction (the “Transaction”).\nB. In connection with the consideration of such Transaction, each party (as to information disclosed by it, the “Disclosing Party”) is prepared\nto furnish the other party (as to information received by it, the “Receiving Party”) with certain confidential and proprietary information concerning\nits business and properties.\nC. All such information furnished by a Disclosing Party, whether furnished before or after the date of this Agreement and irrespective of the\nform of communication, and all Notes (as defined below) are collectively referred to in this Agreement as “Evaluation Material”.\nD. The parties wish to define their respective rights and obligations respect to the Evaluation Material.\nE. For purposes of this Agreement, the term “Representative” shall mean a party’s affiliates, agents, professional advisors or authorized\nrepresentatives.\nNOW, THEREFORE, in consideration of the premises and the agreements contained in this Agreement, the parties agree as follows:\n1. The Receiving Party acknowledges and agrees that it is imperative that all Evaluation Material received by it remain confidential.\nAccordingly, the Receiving Party agrees that prior to being given access to the Disclosing Party’s Evaluation Material, each of the Receiving Party’s\nRepresentatives shall be informed of the confidential nature of such Evaluation Material and agree to be bound by the terms of this Agreement. The\nReceiving Party agrees to be responsible for any breach of this Agreement by it or its Representatives to the same extent as though such person were\na party hereto.\n2. To maintain the confidentiality of the Evaluation Material received by it, the Receiving Party agrees:\n(a) not to use, or allow the use for any purpose of, any such Evaluation Material, including any notes, summaries, reports, analyses, or\nother material derived by the Receiving Party, its affiliates, or its Representatives in whole or in part from such\nEvaluation Material in whatever form maintained (collectively, “Notes”), in each case except for the sole purpose of evaluating a possible\nTransaction and the terms thereof;\n(b) not to disclose, or allow disclosure of, any such Evaluation Material except to its Representatives, in each case only to the extent\nnecessary to permit such Representatives to assist the Receiving Party in making the evaluations referred to in clause (a) above; and\n(c) not to disclose or allow disclosure to persons other than its Representatives that (i) such Evaluation Material has been made\navailable to the Receiving Party, (ii) the Receiving Party, or its Representatives have inspected any Evaluation Material, (iii) the parties may be\nconsidering a possible Transaction, or any of the terms, conditions, or other facts with respect to any such Transaction, including the status\nthereof, or (iv) the parties have had, are having, or propose to have any discussions or negotiations with respect thereto, provided that the\nReceiving Party may make such disclosure if such disclosure is required by law or legal process pursuant to the provisions of paragraph 6\nhereof.\nThe term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any individual, corporation,\ncompany, partnership, or other entity or group. GE’s obligations to keep the Evaluation Material confidential as set forth in this Agreement shall be\ndeemed not to be breached by any disclosure by NBC Universal, Inc., its affiliates or any other affiliate of GE in the ordinary course of its business\nof disseminating news and information; provided, that such disclosure does not result from a breach of the obligations of GE or any of its\nRepresentatives hereunder.\n3. With respect to all Evaluation Material, the Receiving Party agrees that the Disclosing Party and its Representatives make no\nrepresentations or warranties, express or implied, as to the accuracy or completeness of such material, and that only those representations and\nwarranties that may be made in a definitive written agreement for a Transaction shall have any legal effect.\n4. If either party decides that it does not wish to proceed with a Transaction, it will promptly inform the other party of that decision. In\naddition, the Disclosing Party may elect at any time by notice to the Receiving Party to terminate further access by the Receiving Party to, and such\nparty’s review of, the Evaluation Material disclosed to it. The Receiving Party agrees that in either such case, upon the written request of the\nDisclosing Party, it will promptly return or destroy all Evaluation Material disclosed to it, without retaining any copy thereof, except that one copy of\nsuch Evaluation Material and all Notes included therein may be retained in the legal files of the Receiving Party solely for compliance purposes or\nfor the purpose of defending or maintaining any litigation (including any administrative proceeding) relating to this Agreement or such Evaluation\nMaterial. No such termination or return or destruction of such Evaluation\n-2-\nMaterial will affect the Receiving Party’s obligations under this Agreement, all of which obligations shall continue in effect.\n5. This Agreement shall not apply to any portion of the Evaluation Material disclosed to the Receiving Party to the extent such information\n(i) becomes generally available to the public other than as a result of an unauthorized disclosure by the Receiving Party or its Representatives,\n(ii) was available to the Receiving Party on a non-confidential basis prior to its disclosure to such party by the Disclosing Party or its\nRepresentatives, (iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its\nRepresentatives, provided the Receiving Party had no actual knowledge that such person was under a legal obligation to refrain from such\ndisclosure, or (iv) was independently developed by the Receiving Party without reference to such Evaluation Material.\n6. If either party or its Representatives is requested or required to disclose any Evaluation Material received by it or to make any other\ndisclosure mentioned in Section 2(c) above, such party agrees to provide the Disclosing Party with prompt notice of each such request, to the extent\npractical, so that the Disclosing Party may seek an appropriate protective order or waive compliance by the Receiving Party with the provisions of\nthis Agreement or both. If, absent the entry of a protective order or the receipt of a waiver under this Agreement, the Receiving Party or its\nRepresentatives are legally compelled or required to disclose such Evaluation Material, the Receiving Party may disclose such information to the\npersons and to the extent required without liability under this Agreement.\n7. The terms of this Agreement may be modified or waived only by a separate writing signed by each of the parties that expressly modifies\nor waives any such term.\n8. This Agreement shall be binding upon the parties and their respective Representatives. It shall be construed in accordance with the internal\nsubstantive laws of the State of New York without regard to principles of choice or conflicts of law.\n9. In the event of any controversy, claim or dispute between the parties arising out of or relating to this Agreement or any alleged breach\nthereof, the parties shall submit such dispute to non-binding mediation in the Borough of Manhattan, County of New York, State of New York for a\nperiod of 60 days prior to initiating any legal action in connection therewith, provided that nothing herein shall prevent the party seeking\nenforcement from seeking temporary or preliminary injunctive relief from a state or federal court sitting in the Borough of Manhattan, County of\nNew York, State of New York (which court shall have exclusive jurisdiction over any such request for relief) to the extent necessary to protect itself\nfrom any irreparable harm that it would suffer during the 60-day mediation period. If the parties are unable to agree upon a mediator within five\nbusiness days after receipt of written notice of a claim, either party may apply to the American Arbitration Association for the appointment of a\nmediator, which\n-3-\nappointment shall be final and binding on both parties. The mediation shall be conducted pursuant to the mediation rules of the American Arbitration\nAssociation then in effect, unless the parties agree to an alternative procedure. Each party shall participate in good faith in such mediation, shall bear\nits own costs of such mediation and shall share the cost of the mediator equally.\n10. If any dispute cannot be resolved pursuant to the preceding paragraph within the 60-day mediation period, either party may within 30\ndays after the end of the 60-day mediation period, demand that the dispute be submitted to binding arbitration by so notifying the other party, in\nwriting (the “Arbitration”). The Arbitration shall be conducted in the Borough of Manhattan, County of New York, State of New York, before a\nsingle arbitrator. The arbitrator shall be appointed, and the Arbitration shall be conducted, under the rules of the American Arbitration Association in\neffect at the time of such arbitration, provided that the arbitrator shall have no power to award punitive exemplary or consequential damages to any\nparty to the Arbitration. The arbitrator’s decision shall be final, conclusive and binding on the parties to the Arbitration, and shall be the exclusive\nforum for any claims arising out of this Agreement or the subject matter hereof.\n11. This Agreement represents the entire agreement of the parties concerning the subject matter hereof and supersedes any prior or\ncontemporaneous oral (or any prior written) agreements concerning the subject matter hereof.\n-4-\nIN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed on the date first written above.\nGENERAL ELECTRIC COMPANY\nBy: /S/ MICHAEL A. JONES\nMichael A. Jones\nExecutive Vice President,\nBusiness Development\nGE Healthcare\nCLARIENT, INC.\nBy: /S/ RONALD A. ANDREWS\nName: Ronald A. Andrews\nTitle: Chief Executive Officer\n-5-	EX-99.(D)(4) 10 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is made as of June 6, 2010, between General Electric Company, a New York corporation\n(“GE”), and Clarient, Inc. with reference to the following background.\nA. The parties have engaged in and expect to continue to engage in discussions involving the exploration and evaluation of a potential\nrelationship or transaction (the “Transaction”).\nB. In connection with the consideration of such Transaction, each party (as to information disclosed by it, the “Disclosing Party”) is prepared\nto furnish the other party (as to information received by it, the “Receiving Party”) with certain confidential and proprietary information concerning\nits business and properties.\nC. All such information furnished by a Disclosing Party, whether furnished before or after the date of this Agreement and irrespective of the\nform of communication, and all Notes (as defined below) are collectively referred to in this Agreement as “Evaluation Material”.\nD. The parties wish to define their respective rights and obligations respect to the Evaluation Material.\nE. For purposes of this Agreement, the term “Representative” shall mean a party’s affiliates, agents, professional advisors or authorized\nrepresentatives.\nNOW, THEREFORE, in consideration of the premises and the agreements contained in this Agreement, the parties agree as follows:\n1. The Receiving Party acknowledges and agrees that it is imperative that all Evaluation Material received by it remain confidential.\nAccordingly, the Receiving Party agrees that prior to being given access to the Disclosing Party’s Evaluation Material, each of the Receiving Party’s\nRepresentatives shall be informed of the confidential nature of such Evaluation Material and agree to be bound by the terms of this Agreement. The\nReceiving Party agrees to be responsible for any breach of this Agreement by it or its Representatives to the same extent as though such person were\na party hereto.\n2. To maintain the confidentiality of the Evaluation Material received by it, the Receiving Party agrees:\n(a) not to use, or allow the use for any purpose of, any such Evaluation Material, including any notes, summaries, reports, analyses, or\nother material derived by the Receiving Party, its affiliates, or its Representatives in whole or in part from such\nEvaluation Material in whatever form maintained (collectively, “Notes™), in each case except for the sole purpose of evaluating a possible\nTransaction and the terms thereof;\n(b) not to disclose, or allow disclosure of, any such Evaluation Material except to its Representatives, in each case only to the extent\nnecessary to permit such Representatives to assist the Receiving Party in making the evaluations referred to in clause (a) above; and\n(c) not to disclose or allow disclosure to persons other than its Representatives that (i) such Evaluation Material has been made\navailable to the Receiving Party, (ii) the Receiving Party, or its Representatives have inspected any Evaluation Material, (iii) the parties may be\nconsidering a possible Transaction, or any of the terms, conditions, or other facts with respect to any such Transaction, including the status\nthereof, or (iv) the parties have had, are having, or propose to have any discussions or negotiations with respect thereto, provided that the\nReceiving Party may make such disclosure if such disclosure is required by law or legal process pursuant to the provisions of paragraph 6\nhereof.\nThe term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any individual, corporation,\ncompany, partnership, or other entity or group. GE’s obligations to keep the Evaluation Material confidential as set forth in this Agreement shall be\ndeemed not to be breached by any disclosure by NBC Universal, Inc., its affiliates or any other affiliate of GE in the ordinary course of its business\nof disseminating news and information; provided, that such disclosure does not result from a breach of the obligations of GE or any of its\nRepresentatives hereunder.\n3. With respect to all Evaluation Material, the Receiving Party agrees that the Disclosing Party and its Representatives make no\nrepresentations or warranties, express or implied, as to the accuracy or completeness of such material, and that only those representations and\nwarranties that may be made in a definitive written agreement for a Transaction shall have any legal effect.\n4. If either party decides that it does not wish to proceed with a Transaction, it will promptly inform the other party of that decision. In\naddition, the Disclosing Party may elect at any time by notice to the Receiving Party to terminate further access by the Receiving Party to, and such\nparty’s review of, the Evaluation Material disclosed to it. The Receiving Party agrees that in either such case, upon the written request of the\nDisclosing Party, it will promptly return or destroy all Evaluation Material disclosed to it, without retaining any copy thereof, except that one copy of\nsuch Evaluation Material and all Notes included therein may be retained in the legal files of the Receiving Party solely for compliance purposes or\nfor the purpose of defending or maintaining any litigation (including any administrative proceeding) relating to this Agreement or such Evaluation\nMaterial. No such termination or return or destruction of such Evaluation\n-\nMaterial will affect the Receiving Party’s obligations under this Agreement, all of which obligations shall continue in effect.\n5. This Agreement shall not apply to any portion of the Evaluation Material disclosed to the Receiving Party to the extent such information\n(i) becomes generally available to the public other than as a result of an unauthorized disclosure by the Receiving Party or its Representatives,\n(ii) was available to the Receiving Party on a non-confidential basis prior to its disclosure to such party by the Disclosing Party or its\nRepresentatives, (iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its\nRepresentatives, provided the Receiving Party had no actual knowledge that such person was under a legal obligation to refrain from such\ndisclosure, or (iv) was independently developed by the Receiving Party without reference to such Evaluation Material.\n6. If either party or its Representatives is requested or required to disclose any Evaluation Material received by it or to make any other\ndisclosure mentioned in Section 2(c) above, such party agrees to provide the Disclosing Party with prompt notice of each such request, to the extent\npractical, so that the Disclosing Party may seek an appropriate protective order or waive compliance by the Receiving Party with the provisions of\nthis Agreement or both. If, absent the entry of a protective order or the receipt of a waiver under this Agreement, the Receiving Party or its\nRepresentatives are legally compelled or required to disclose such Evaluation Material, the Receiving Party may disclose such information to the\npersons and to the extent required without liability under this Agreement.\n7. The terms of this Agreement may be modified or waived only by a separate writing signed by each of the parties that expressly modifies\nor waives any such term.\n8. This Agreement shall be binding upon the parties and their respective Representatives. It shall be construed in accordance with the internal\nsubstantive laws of the State of New York without regard to principles of choice or conflicts of law.\n9. In the event of any controversy, claim or dispute between the parties arising out of or relating to this Agreement or any alleged breach\nthereof, the parties shall submit such dispute to non-binding mediation in the Borough of Manhattan, County of New York, State of New York for a\nperiod of 60 days prior to initiating any legal action in connection therewith, provided that nothing herein shall prevent the party seeking\nenforcement from seeking temporary or preliminary injunctive relief from a state or federal court sitting in the Borough of Manhattan, County of\nNew York, State of New York (which court shall have exclusive jurisdiction over any such request for relief) to the extent necessary to protect itself\nfrom any irreparable harm that it would suffer during the 60-day mediation period. If the parties are unable to agree upon a mediator within five\nbusiness days after receipt of written notice of a claim, either party may apply to the American Arbitration Association for the appointment of a\nmediator, which\n_3-\nappointment shall be final and binding on both parties. The mediation shall be conducted pursuant to the mediation rules of the American Arbitration\nAssociation then in effect, unless the parties agree to an alternative procedure. Each party shall participate in good faith in such mediation, shall bear\nits own costs of such mediation and shall share the cost of the mediator equally.\n10. If any dispute cannot be resolved pursuant to the preceding paragraph within the 60-day mediation period, either party may within 30\ndays after the end of the 60-day mediation period, demand that the dispute be submitted to binding arbitration by so notifying the other party, in\nwriting (the “Arbitration”). The Arbitration shall be conducted in the Borough of Manhattan, County of New York, State of New York, before a\nsingle arbitrator. The arbitrator shall be appointed, and the Arbitration shall be conducted, under the rules of the American Arbitration Association in\neffect at the time of such arbitration, provided that the arbitrator shall have no power to award punitive exemplary or consequential damages to any\nparty to the Arbitration. The arbitrator’s decision shall be final, conclusive and binding on the parties to the Arbitration, and shall be the exclusive\nforum for any claims arising out of this Agreement or the subject matter hereof.\n11. This Agreement represents the entire agreement of the parties concerning the subject matter hereof and supersedes any prior or\ncontemporaneous oral (or any prior written) agreements concerning the subject matter hereof.\n4-\nIN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed on the date first written above. GENERAL ELECTRIC COMPANY\nBy: /S/ MICHAEL A. JONES Michael A. Jones\nExecutive Vice President,\nBusiness Development\nGE Healthcare\nCLARIENT, INC.\nBy: /S/ RONALD A. ANDREWS Name: Ronald A. Andrews\nTitle: Chief Executive Officer	EX-99.(D)(4) 10 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the "Agreement") is made as of June 6, 2010, between General Electric Company, a New York corporation\n("GE"), and Clarient, Inc. with reference to the following background.\nA. The parties have engaged in and expect to continue to engage in discussions involving the exploration and evaluation of a potential\nrelationship or transaction (the "Transaction").\nB. In connection with the consideration of such Transaction, each party (as to information disclosed by it, the "Disclosing Party") is prepared\nto furnish the other party (as to information received by it, the "Receiving Party") with certain confidential and proprietary information concerning\nits business and properties.\nC. All such information furnished by a Disclosing Party, whether furnished before or after the date of this Agreement and irrespective of the\nform of communication, and all Notes (as defined below) are collectively referred to in this Agreement as "Evaluation Material".\nD.\nThe parties wish to define their respective rights and obligations respect to the Evaluation Material.\nE.\nFor purposes of this Agreement, the term "Representative" shall mean a party's affiliates, agents, professional advisors or authorized\nrepresentatives.\nNOW, THEREFORE, in consideration of the premises and the agreements contained in this Agreement, the parties agree as follows:\n1.\nThe Receiving Party acknowledges and agrees that it is imperative that all Evaluation Material received by it remain confidential.\nAccordingly, the Receiving Party agrees that prior to being given access to the Disclosing Party's Evaluation Material, each of the Receiving Party's\nRepresentatives shall be informed of the confidential nature of such Evaluation Material and agree to be bound by the terms of this Agreement. The\nReceiving Party agrees to be responsible for any breach of this Agreement by it or its Representatives to the same extent as though such person were\na party hereto.\n2.\nTo maintain the confidentiality of the Evaluation Material received by it, the Receiving Party agrees:\n(a) not to use, or allow the use for any purpose of, any such Evaluation Material, including any notes, summaries, reports, analyses, or\nother material derived by the Receiving Party, its affiliates, or its Representatives in whole or in part from such\nEvaluation Material in whatever form maintained (collectively, "Notes"), in each case except for the sole purpose of evaluating a possible\nTransaction and the terms thereof;\n(b) not to disclose, or allow disclosure of, any such Evaluation Material except to its Representatives, in each case only to the extent\nnecessary to permit such Representatives to assist the Receiving Party in making the evaluations referred to in clause (a) above; and\n(c) not to disclose or allow disclosure to persons other than its Representatives that (i) such Evaluation Material has been made\navailable to the Receiving Party, (ii) the Receiving Party, or its Representatives have inspected any Evaluation Material, (iii) the parties may be\nconsidering a possible Transaction, or any of the terms, conditions, or other facts with respect to any such Transaction, including the status\nthereof, or (iv) the parties have had, are having, or propose to have any discussions or negotiations with respect thereto, provided that the\nReceiving Party may make such disclosure if such disclosure is required by law or legal process pursuant to the provisions of paragraph 6\nhereof.\nThe term "person" as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any individual, corporation,\ncompany, partnership, or other entity or group. GE'S obligations to keep the Evaluation Material confidential as set forth in this Agreement shall be\ndeemed not to be breached by any disclosure by NBC Universal, Inc., its affiliates or any other affiliate of GE in the ordinary course of its business\nof disseminating news and information; provided, that such disclosure does not result from a breach of the obligations of GE or any of its\nRepresentatives hereunder.\n3. With respect to all Evaluation Material, the Receiving Party agrees that the Disclosing Party and its Representatives make no\nrepresentations or warranties, express or implied, as to the accuracy or completeness of such material, and that only those representations and\nwarranties that may be made in a definitive written agreement for a Transaction shall have any legal effect.\n4. If either party decides that it does not wish to proceed with a Transaction, it will promptly inform the other party of that decision.\nIn\naddition, the Disclosing Party may elect at any time by notice to the Receiving Party to terminate further access by the Receiving Party to, and such\nparty's review of, the Evaluation Material disclosed to it. The Receiving Party agrees that in either such case, upon the written request of the\nDisclosing Party, it will promptly return or destroy all Evaluation Material disclosed to it, without retaining any copy thereof, except that one copy of\nsuch\nEvaluation Material and all Notes included therein may be retained in the legal files of the Receiving Party solely for compliance purposes or\nfor the purpose of defending or maintaining any litigation (including any administrative proceeding) relating to this Agreement or such Evaluation\nMaterial. No such termination or return or destruction of such Evaluation\n-2-\nMaterial will affect the Receiving Party's obligations under this Agreement, all of which obligations shall continue in effect.\n5.\nThis Agreement shall not apply to any portion of the Evaluation Material disclosed to the Receiving Party to the extent such information\n(i) becomes generally available to the public other than as a result of an unauthorized disclosure by the Receiving Party or its Representatives,\n(ii) was available to the Receiving Party on a non-confidential basis prior to its disclosure to such party by the Disclosing Party or its\nRepresentatives, (iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its\nRepresentatives, provided the Receiving Party had no actual knowledge that such person was under a legal obligation to refrain from such\ndisclosure, or (iv) was independently developed by the Receiving Party without reference to such Evaluation Material.\n6. If either party or its Representatives is requested or required to disclose any Evaluation Material received by it or to make any other\ndisclosure mentioned in Section 2(c) above, such party agrees to provide the Disclosing Party with prompt notice of each such request, to the extent\npractical, so that the Disclosing Party may seek an appropriate protective order or waive compliance by the Receiving Party with the provisions of\nthis Agreement or both. If, absent the entry of a protective order or the receipt of a waiver under this Agreement, the Receiving Party or its\nRepresentatives are legally compelled or required to disclose such Evaluation Material, the Receiving Party may disclose such information to\nthe\npersons and to the extent required without liability under this Agreement.\n7. The terms of this Agreement may be modified or waived only by a separate writing signed by each of the parties that expressly modifies\nor waives any such term.\n8. This Agreement shall be binding upon the parties and their respective Representatives. It shall be construed in accordance with the internal\nsubstantive laws of the State of New York without regard to principles of choice or conflicts of law.\n9. In the event of any controversy, claim or dispute between the parties arising out of or relating to this Agreement or any alleged breach\nthereof, the parties shall submit such dispute to non-binding mediation in the Borough of Manhattan, County of New York, State of New York for a\nperiod of 60 days prior to initiating any legal action in connection therewith, provided that nothing herein shall prevent the party seeking\nenforcement from seeking temporary or preliminary injunctive relief from a state or federal court sitting in the Borough of Manhattan, County of\nNew York, State of New York (which court shall have exclusive jurisdiction over any such request for relief) to the extent necessary to protect itself\nfrom any irreparable harm that it would suffer during the 60-day mediation period. If the parties are unable to agree upon a mediator within five\nbusiness days after receipt of written notice of a claim, either party may apply to the American Arbitration Association for the appointment of\na\nmediator, which\n-3-\nappointment shall be final and binding on both parties. The mediation shall be conducted pursuant to the mediation rules of the American Arbitration\nAssociation then in effect, unless the parties agree to an alternative procedure. Each party shall participate in good faith in such mediation, shall bear\nits own costs of such mediation and shall share the cost of the mediator equally.\n10. If any dispute cannot be resolved pursuant to the preceding paragraph within the 60-day mediation period, either party may within 30\ndays after the end of the 60-day mediation period, demand that the dispute be submitted to binding arbitration by so notifying the other party, in\nwriting (the "Arbitration"). The Arbitration shall be conducted in the Borough of Manhattan, County of New York, State of New York, before\na\nsingle arbitrator. The arbitrator shall be appointed, and the Arbitration shall be conducted, under the rules of the American Arbitration Association in\neffect at the time of such arbitration, provided that the arbitrator shall have no power to award punitive exemplary or consequential damages to any\nparty to the Arbitration. The arbitrator's decision shall be final, conclusive and binding on the parties to the Arbitration, and shall be the exclusive\nforum for any claims arising out of this Agreement or the subject matter hereof.\n11. This Agreement represents the entire agreement of the parties concerning the subject matter hereof and supersedes any prior or\ncontemporaneous oral (or any prior written) agreements concerning the subject matter hereof.\n-4-\nIN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed on the date first written above.\nGENERAL ELECTRIC COMPANY\nBy:\n/S/ MICHAEL A. JONES\nMichael A. Jones\nExecutive Vice President,\nBusiness Development\nGE Healthcare\nCLARIENT, INC.\nBy:\n/S/ RONALD A. ANDREWS\nName: Ronald A. Andrews\nTitle: Chief Executive Officer\n-5-	EX-99.(D)(4) 10 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is made as of June 6, 2010, between General Electric Company, a New York corporation\n(“GE”), and Clarient, Inc. with reference to the following background.\nA. The parties have engaged in and expect to continue to engage in discussions involving the exploration and evaluation of a potential\nrelationship or transaction (the “Transaction”).\nB. In connection with the consideration of such Transaction, each party (as to information disclosed by it, the “Disclosing Party”) is prepared\nto furnish the other party (as to information received by it, the “Receiving Party”) with certain confidential and proprietary information concerning\nits business and properties.\nC. All such information furnished by a Disclosing Party, whether furnished before or after the date of this Agreement and irrespective of the\nform of communication, and all Notes (as defined below) are collectively referred to in this Agreement as “Evaluation Material”.\nD. The parties wish to define their respective rights and obligations respect to the Evaluation Material.\nE. For purposes of this Agreement, the term “Representative” shall mean a party’s affiliates, agents, professional advisors or authorized\nrepresentatives.\nNOW, THEREFORE, in consideration of the premises and the agreements contained in this Agreement, the parties agree as follows:\n1. The Receiving Party acknowledges and agrees that it is imperative that all Evaluation Material received by it remain confidential.\nAccordingly, the Receiving Party agrees that prior to being given access to the Disclosing Party’s Evaluation Material, each of the Receiving Party’s\nRepresentatives shall be informed of the confidential nature of such Evaluation Material and agree to be bound by the terms of this Agreement. The\nReceiving Party agrees to be responsible for any breach of this Agreement by it or its Representatives to the same extent as though such person were\na party hereto.\n2. To maintain the confidentiality of the Evaluation Material received by it, the Receiving Party agrees:\n(a) not to use, or allow the use for any purpose of, any such Evaluation Material, including any notes, summaries, reports, analyses, or\nother material derived by the Receiving Party, its affiliates, or its Representatives in whole or in part from such\nEvaluation Material in whatever form maintained (collectively, “Notes”), in each case except for the sole purpose of evaluating a possible\nTransaction and the terms thereof;\n(b) not to disclose, or allow disclosure of, any such Evaluation Material except to its Representatives, in each case only to the extent\nnecessary to permit such Representatives to assist the Receiving Party in making the evaluations referred to in clause (a) above; and\n(c) not to disclose or allow disclosure to persons other than its Representatives that (i) such Evaluation Material has been made\navailable to the Receiving Party, (ii) the Receiving Party, or its Representatives have inspected any Evaluation Material, (iii) the parties may be\nconsidering a possible Transaction, or any of the terms, conditions, or other facts with respect to any such Transaction, including the status\nthereof, or (iv) the parties have had, are having, or propose to have any discussions or negotiations with respect thereto, provided that the\nReceiving Party may make such disclosure if such disclosure is required by law or legal process pursuant to the provisions of paragraph 6\nhereof.\nThe term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any individual, corporation,\ncompany, partnership, or other entity or group. GE’s obligations to keep the Evaluation Material confidential as set forth in this Agreement shall be\ndeemed not to be breached by any disclosure by NBC Universal, Inc., its affiliates or any other affiliate of GE in the ordinary course of its business\nof disseminating news and information; provided, that such disclosure does not result from a breach of the obligations of GE or any of its\nRepresentatives hereunder.\n3. With respect to all Evaluation Material, the Receiving Party agrees that the Disclosing Party and its Representatives make no\nrepresentations or warranties, express or implied, as to the accuracy or completeness of such material, and that only those representations and\nwarranties that may be made in a definitive written agreement for a Transaction shall have any legal effect.\n4. If either party decides that it does not wish to proceed with a Transaction, it will promptly inform the other party of that decision. In\naddition, the Disclosing Party may elect at any time by notice to the Receiving Party to terminate further access by the Receiving Party to, and such\nparty’s review of, the Evaluation Material disclosed to it. The Receiving Party agrees that in either such case, upon the written request of the\nDisclosing Party, it will promptly return or destroy all Evaluation Material disclosed to it, without retaining any copy thereof, except that one copy of\nsuch Evaluation Material and all Notes included therein may be retained in the legal files of the Receiving Party solely for compliance purposes or\nfor the purpose of defending or maintaining any litigation (including any administrative proceeding) relating to this Agreement or such Evaluation\nMaterial. No such termination or return or destruction of such Evaluation\n-2-\nMaterial will affect the Receiving Party’s obligations under this Agreement, all of which obligations shall continue in effect.\n5. This Agreement shall not apply to any portion of the Evaluation Material disclosed to the Receiving Party to the extent such information\n(i) becomes generally available to the public other than as a result of an unauthorized disclosure by the Receiving Party or its Representatives,\n(ii) was available to the Receiving Party on a non-confidential basis prior to its disclosure to such party by the Disclosing Party or its\nRepresentatives, (iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its\nRepresentatives, provided the Receiving Party had no actual knowledge that such person was under a legal obligation to refrain from such\ndisclosure, or (iv) was independently developed by the Receiving Party without reference to such Evaluation Material.\n6. If either party or its Representatives is requested or required to disclose any Evaluation Material received by it or to make any other\ndisclosure mentioned in Section 2(c) above, such party agrees to provide the Disclosing Party with prompt notice of each such request, to the extent\npractical, so that the Disclosing Party may seek an appropriate protective order or waive compliance by the Receiving Party with the provisions of\nthis Agreement or both. If, absent the entry of a protective order or the receipt of a waiver under this Agreement, the Receiving Party or its\nRepresentatives are legally compelled or required to disclose such Evaluation Material, the Receiving Party may disclose such information to the\npersons and to the extent required without liability under this Agreement.\n7. The terms of this Agreement may be modified or waived only by a separate writing signed by each of the parties that expressly modifies\nor waives any such term.\n8. This Agreement shall be binding upon the parties and their respective Representatives. It shall be construed in accordance with the internal\nsubstantive laws of the State of New York without regard to principles of choice or conflicts of law.\n9. In the event of any controversy, claim or dispute between the parties arising out of or relating to this Agreement or any alleged breach\nthereof, the parties shall submit such dispute to non-binding mediation in the Borough of Manhattan, County of New York, State of New York for a\nperiod of 60 days prior to initiating any legal action in connection therewith, provided that nothing herein shall prevent the party seeking\nenforcement from seeking temporary or preliminary injunctive relief from a state or federal court sitting in the Borough of Manhattan, County of\nNew York, State of New York (which court shall have exclusive jurisdiction over any such request for relief) to the extent necessary to protect itself\nfrom any irreparable harm that it would suffer during the 60-day mediation period. If the parties are unable to agree upon a mediator within five\nbusiness days after receipt of written notice of a claim, either party may apply to the American Arbitration Association for the appointment of a\nmediator, which\n-3-\nappointment shall be final and binding on both parties. The mediation shall be conducted pursuant to the mediation rules of the American Arbitration\nAssociation then in effect, unless the parties agree to an alternative procedure. Each party shall participate in good faith in such mediation, shall bear\nits own costs of such mediation and shall share the cost of the mediator equally.\n10. If any dispute cannot be resolved pursuant to the preceding paragraph within the 60-day mediation period, either party may within 30\ndays after the end of the 60-day mediation period, demand that the dispute be submitted to binding arbitration by so notifying the other party, in\nwriting (the “Arbitration”). The Arbitration shall be conducted in the Borough of Manhattan, County of New York, State of New York, before a\nsingle arbitrator. The arbitrator shall be appointed, and the Arbitration shall be conducted, under the rules of the American Arbitration Association in\neffect at the time of such arbitration, provided that the arbitrator shall have no power to award punitive exemplary or consequential damages to any\nparty to the Arbitration. The arbitrator’s decision shall be final, conclusive and binding on the parties to the Arbitration, and shall be the exclusive\nforum for any claims arising out of this Agreement or the subject matter hereof.\n11. This Agreement represents the entire agreement of the parties concerning the subject matter hereof and supersedes any prior or\ncontemporaneous oral (or any prior written) agreements concerning the subject matter hereof.\n-4-\nIN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed on the date first written above.\nGENERAL ELECTRIC COMPANY\nBy: /S/ MICHAEL A. JONES\nMichael A. Jones\nExecutive Vice President,\nBusiness Development\nGE Healthcare\nCLARIENT, INC.\nBy: /S/ RONALD A. ANDREWS\nName: Ronald A. Andrews\nTitle: Chief Executive Officer\n-5-
+d6947a6968c827f2b7619ab33f2ea1e6.pdf	effective_date jurisdiction party	Exhibit (d)(3)\nSTRICTLY PRIVATE AND CONFIDENTIAL\nApril 24, 2017\nWabash National Corporation\n1000 Sagamore Parkway South\nLafayette, IN 47905\nAttention:\nMr. James Scarcelli\nVP, Corporate Strategy\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction with Project REDHAWK, a Delaware corporation,\nand/or its subsidiaries and affiliates (collectively, the “Company”) (the “Transaction”), the Company is prepared to make\navailable to you certain confidential and proprietary information relating to the Company which is not available to the\ngeneral public. All such information, whether written, oral or electronic, whether furnished before or after the date of this\nletter agreement by the Company or its Representatives (as defined below), and regardless of the manner or form in\nwhich it is furnished, is collectively referred to in this letter agreement as “Evaluation Material.” The term “Evaluation\nMaterial” also includes all notes, summaries, analyses, compilations, studies, or other documents or media prepared by\nyou or your Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to you\nor your Representatives pursuant to this letter agreement. The term Evaluation Material does not include, however,\ninformation which (a) is or becomes generally available to the public other than as a result of direct or indirect disclosure\nby you or your Representatives in violation of the terms of this letter agreement or (b) prior to its disclosure to you by the\nCompany or its Representatives, is or becomes available to you on a non-confidential basis from a source (other than the\nCompany or any of its Representatives) which is not prohibited from disclosing such information to you by a legal,\ncontractual or fiduciary obligation to the Company or any other Person. The term “Representatives” means, as to any\nPerson, its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants,\nconsultants, financial advisors and non-convertible debt sources of financing for the Transaction, and additionally as to\nyou, upon receiving prior written consent of the Company, which consent may be given, withheld or conditioned in its sole\ndiscretion, your potential sources of equity financing for the Transaction). The term “Person” as used in this letter\nagreement is broadly interpreted to include any corporation, company, partnership or other legal or business entity or any\nindividual.\nAccordingly, in consideration of the Evaluation Material being furnished to you, you agree that:\n1.\nExcept as required by Law (and only after compliance with paragraph 2 below), unless otherwise agreed\nto in writing by the Company, you will (a) not use the Evaluation Material for any purpose other than in connection with\nyour evaluation of the Transaction, (b) keep the Evaluation Material confidential and not disclose any Evaluation Material\nin any manner whatsoever and (c) not disclose to any other Person the fact the Evaluation Material exists or has been\nmade available, that you are considering the Transaction, or that discussions or negotiations are taking place concerning\nthe Transaction or involving the Company or any of the terms, conditions, or other facts with respect thereto (including,\nwithout limitation, the status thereof); provided, however, that such information may be disclosed to your Representatives\nwho are actively and directly participating in your evaluation of the Transaction or who otherwise need to know such\ninformation for the sole purpose of evaluating the Transaction and who are informed by you of the confidential nature of\nthe information. Without limiting the generality of the foregoing, you further agree that you will not, directly or indirectly,\nshare the Evaluation Material with or enter into any agreement, arrangement or understanding, or have any discussions\nwhich would reasonably be expected to lead to such an agreement, arrangement or understanding with any other\nperson, including other potential bidders and equity financing sources (other than your Representatives as permitted\nabove) regarding a possible transaction involving the Company without the prior written consent of the Company, which\nconsent may be given, withheld or conditioned in its sole discretion, and only upon such person executing a\nconfidentiality agreement in favor of the Company with terms and conditions consistent with this letter agreement. You\nwill cause your Representatives to observe the terms of this letter agreement and you will be responsible for any breach\nof this letter agreement by your Representatives. The term “Law,” means any applicable law or regulation (including,\nwithout limitation, any rule, regulation or policy statement of any organized securities exchange, market or automated\nquotation system on which any of your securities are listed or quoted) or by valid legal process.\n2.\nIf you or any of your Representatives are requested pursuant to, or required by, Law to disclose any\nEvaluation Material or other information concerning the Company or the Transaction, prior to any such disclosure, you\nwill, to the extent not legally prohibited, notify the Company promptly of any such request or requirement so that the\nCompany may seek a protective order or other appropriate remedy, or, in the Company's sole discretion, waive\ncompliance with the terms of this letter agreement. If no such protective order or other remedy is obtained or the\nCompany waives compliance with the terms of this letter agreement, you or your Representatives will disclose only that\nportion of the Evaluation Material or other information which you are advised in writing by your legal counsel is legally\nrequired to be disclosed and will use best efforts to ensure any such information so disclosed will be accorded\nconfidential treatment.\n3.\nIf you decide that you do not wish to proceed with the Transaction, you will promptly inform the Company\nof that decision. In that case, or at any time upon the request of the Company for any reason, you will promptly (and in\nany case, within 14 days of the Company's request) (a) deliver to the Company all Evaluation Material furnished to you or\nyour Representatives by or on behalf of the Company (and all copies thereof whether received from the Company or\nmade by you or your Representatives) and (b) either deliver to the Company or destroy all materials prepared by you or\nyour Representatives which constitute Evaluation Material without retaining a copy of any such material, with any such\ndestruction certified to the Company in writing by your authorized officer supervising such destruction; provided that you\nmay retain, in a secure location, a copy of such documents and records as is required to be retained pursuant to any\ninternal document retention policy, law, regulation or rule to which you arc subject. Notwithstanding the return or\ndestruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of\nconfidentiality and all other obligations under this letter agreement.\n4.\nYou acknowledge that neither the Company, nor any of its Representatives nor any of their respective\ndirectors, officers, employees, or agents makes any express or implied representation or warranty as to the accuracy or\ncompleteness of any Evaluation Material. You agree that none of such Persons will have any liability to you or to any of\nyour Representatives, relating to or resulting from the use of any Evaluation Material or for any errors therein or\nomissions therefrom. You also agree that you are not entitled to rely on the accuracy or completeness of any Evaluation\nMaterial and that you may only rely on those representations and warranties that may be contained in any definitive\nagreement executed and delivered by you and the Company and any other necessary parties with respect to the\nTransaction, subject to the terms and conditions as may be contained therein. For the purposes hereof, the term\n“definitive agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it\ninclude any written or oral acceptance of an offer or bid on your part.\n-\n2-\n5.\nYou agree that the Evaluation Information is and shall remain the property of the Company and that the\nCompany has not granted and will not grant you any license, copyright or similar right with respect to any of the\nEvaluation Information or any other material made available to you by or on behalf of the Company.\n6.\nFor a period of eighteen months from the date of this letter agreement, neither you nor any of your\nRepresentatives will, directly or indirectly, solicit, recruit or otherwise induce or encourage any person employed by the\nCompany to terminate such employment or to accept employment or enter into any consulting or other agreement with\nyou or your Representatives or employ in any capacity (as a director, officer, employee, consultant or otherwise) any\nperson who served the Company as a director, officer, employee, consultant or otherwise as of the date hereof or any\ntime during the evaluation of the Transaction without obtaining the prior written consent of the Company; provided,\nhowever, that you will not be prohibited from making general employment solicitations not directed at the employees of\nthe Company or hiring any individuals who respond to such solicitations.\n7.\nYou acknowledge that you are aware and that your Representatives have been advised that the United\nStates securities Laws prohibit any Person having material, non-public information about an issuer from trading the\nsecurities of that company or from communicating such information to other Persons.\n8.\nFor a period of eighteen months from the date of this letter agreement, neither you nor any of your\nRepresentatives or respective affiliates will in any manner, directly or indirectly, without the prior written consent of the\nCompany or its board of directors (or a duly authorized committee thereof):\n(a)\nacquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise,\nany securities or direct or indirect rights or options to acquire any securities of the Company or any of its\nsubsidiaries, or of any successor to or Person in control of the Company, or any assets of the Company or of its\ndivisions or of any such successor or controlling Person;\n(b)\nmake, or in any way participate, directly or indirectly, in any, “solicitation” of “proxies” (as such\nterms are used in the rules of the United States Securities and Exchange Commission), or advise or seek to\ninfluence any Person with respect to the voting of any voting securities of the Company or any of its subsidiaries;\n(c)\nmake any public announcement with respect to, or submit a proposal (whether public or\notherwise) for, or offer of (with or without conditions) any tender or exchange offer, merger, recapitalization,\nreorganization, business combination, restructuring, extraordinary dividend or distribution, liquidation, dissolution\nor other extraordinary transaction involving the Company or any of its subsidiaries or any of their securities or\nassets;\n(d)\nform, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended, in connection with any of the foregoing;\n(e)\notherwise act, alone or in concert with others (including, without limitation, by providing\nfinancing to another party), to seek or offer to control or influence the management, board of directors, policies or\naffairs of the Company;\n(f)\nannounce any intention to effect, cause or participate in, or advise, assist or encourage any\nother Persons in connection with any of the foregoing; or\n(g)\nrequest the Company or any of its Representatives, directly or indirectly, to amend or waive any\nprovision of this paragraph.\nYou will promptly advise the Company of any inquiry or proposal made to you with respect to any of the\nforegoing.\n-\n3-\n9.\nRobert W. Baird & Co., as our authorized Representative, will coordinate the due diligence process for\nthe Transaction. All (a) communications regarding the Transaction, (b) requests for additional information, facility tours,\nmanagement meetings and other management contacts and (c) discussions or questions regarding procedures with\nrespect to the Transaction must be first submitted or directed to Robert W. Baird & Co., and may not be submitted or\ndirected to any person except as authorized by Robert W. Baird & Co.\n10.\nNo contract or agreement providing for any transaction involving you and the Company will be deemed\nto exist between you and the Company unless and until a definitive agreement has been executed and delivered by you\nand the Company and any other necessary parties. Unless and until a definitive agreement has been entered into\nbetween you and the Company regarding a transaction between you and the Company, neither the Company nor you will\nbe under any legal obligation or have any liability to the other party or any other Person of any kind whatsoever with\nrespect to such a transaction by virtue of this letter agreement except for the matters specifically agreed to in this letter\nagreement. You also acknowledge and agree that (a) the Company and its Representatives will conduct the process\n(which process may or may not result in a transaction with the Company) in such manner as the Company, in its sole\ndiscretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third\nparty without notice to you) and (b) the Company reserves the right to change, in its sole discretion, at any time and\nwithout notice to you, the procedures relating to our and your consideration of the Transaction (including, without\nlimitation, terminating all further discussions with you and requesting that you return or destroy the Evaluation Material as\ndescribed in paragraph 3 above).\n11.\nIt is understood and agreed that money damages would be an insufficient remedy for any breach of this\nletter agreement by you or your Representatives and that without prejudice to the rights and remedies otherwise\navailable to the Company, the Company is entitled to equitable relief by way of injunction, specific performance or\notherwise if you or any of your Representatives breach or threaten to breach any of the provisions of this letter\nagreement without the necessity to prove actual damages or post any bond. You agree to reimburse the Company for\nreasonable legal fees and other costs incurred to enforce this letter agreement.\n12.\nIt is further understood and agreed that no failure or delay by the Company in exercising any right,\npower or privilege under this letter agreement, and no course of dealing between the parties, will operate as a waiver\nthereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any\nright, power or privilege under this letter agreement.\n13.\nThis letter agreement and all disputes and controversies arising hereunder or related hereto, will be\ngoverned and construed in accordance with the Laws of the State of Indiana without regard to principles of conflicts of\nlaw that would apply any other law.\n14.\nAny action or proceeding arising out of or relating to this letter agreement or the transactions\ncontemplated hereby may be brought in the courts of the State of Indiana or, if it has or can acquire jurisdiction, in the\nUnited States District Court for the Northern District of Indiana. Each of the parties knowingly, voluntarily and irrevocably\nsubmits to the exclusive jurisdiction of each such court in any such action or proceeding and waives any objection it may\nnow or hereafter have to venue or to convenience of forum. You further agree that service of any process, summons,\nnotice or document by United States certified mail to your address set forth above will be effective service of process for\nany action or proceeding brought against you in any such court.\n15.\nAny assignment of this letter agreement by you without the Company's prior written consent is void.\n16.\nIf any provision of this letter agreement is determined by a court of competent jurisdiction to be invalid,\nillegal or unenforceable, in whole or in part, the remaining provisions of this letter agreement will remain in full force and\neffect to the fullest extent permitted by applicable law.\n17.\nExcept as set forth in Section 6 and Section 8, all of the obligations of the parties under this letter\nagreement shall continue in perpetuity.\n-\n4-\n18.\nThis letter agreement contains the entire agreement between you and the Company concerning\nconfidentiality of the Evaluation Material. No modification of this letter agreement or waiver of the terms and conditions\nhereof will be binding upon you or the Company, unless approved in writing by each of you and the Company.\n19.\nThis letter agreement may be executed in any number of counterparts, including by electronic\ntransmission in portable document format or “tiff' format, and each of such counterparts shall for all purposes be deemed\noriginal, and all such counterparts shall together constitute one and the same instrument.\n[Signature page follows.]\n-\n5-\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to\nthe undersigned, whereupon this letter agreement will become a binding agreement between you and the Company.\nVery truly yours,\nPROJECT REDHAWK\nSupreme Industries, Inc.\nBy: /s/ Matthew W. Long\nName: Matthew W. Long\nTitle: Chief Financial Officer\nAgreed and accepted as of the date first written above\nWABASH NATIONAL CORPORATION\nBy: /s/ James A. Scarcelli\nName: James A. Scarcelli\nTitle: Vice President, Corporate Strategy	Exhibit (d)(3)\nSTRICTLY PRIVATE AND CONFIDENTIAL\nApril 24, 2017\nWabash National Corporation\n1000 Sagamore Parkway South\nLafayette, IN 47905\nAttention: Mr.J ames Scarcelli\nVP, Corporate Strategy\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction with Project REDHAWK, a Delaware corporation,\nand/or its subsidiaries and affiliates (collectively, the “Company”) (the 'Transaction”), the Company is prepared to make\navailable to you certain confidential and proprietary information relating to the Company which is not available to the\ngeneral public. All such information, whether written, oral or electronic, whether furnished before or after the date of this\nletter agreement by the Company or its Representatives (as defined below), and regardless of the manner or form in\nwhich it is furnished, is collectively referred to in this letter agreement as “Evaluation Material.” The term “Evaluation\nMaterial” also includes all notes, summaries, analyses, compilations, studies, or other documents or media prepared by\nyou or your Representatives which contain, reflector are based upon, in whole or in part, the information furnished to you\nor your Representatives pursuant to this letter agreement. The term Evaluation Material does not include, however,\ninformation which (a) is or becomes generally available to the public other than as a result of direct or indirect disclosure\nby you or your Representatives in violation of the terms of this letter agreement or (b) priorto its disclosure to you by the\nCompany or its Representatives, is or becomes available to you on a non-confidential basis from a source (otherthan the\nCompany or any of its Representatives) which is not prohibited from disclosing such information to you by a legal,\ncontractual or fiduciary obligation to the Company or any other Person. The term “Representatives” means, as to any\nPerson, its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants,\nconsultants, financial advisors and non-convertible debt sources of financing for the Transaction, and additionally as to\nyou, upon receiving prior written consent of the Company, which consent may be given, withheld or conditioned in its sole\ndiscretion, your potential sources of equity financing for the Transaction). The term “Person” as used in this letter\nagreement is broadly interpreted to include any corporation, company, partnership or other legal or business entity or any\nindividual.\n \nAccordingly, in consideration of the Evaluation Material being furnished to you, you agree that:\n1. Except as required by Law (and only after compliance with paragraph 2 below), unless otherwise agreed\nto in writing by the Company, you will (a) not use the Evaluation Material for any purpose other than in connection with\nyour evaluation of the Transaction, (b) keep the Evaluation Material confidential and not disclose any Evaluation Material\nin any manner whatsoever and (c) not disclose to any other Person the fact the Evaluation Material exists or has been\nmade available, thatyou are considering the Transaction, or that discussions or negotiations are taking place concerning\nthe Transaction or involving the Company or any of the terms, conditions, or other facts with respect thereto (including,\nwithout limitation, the status thereof); provided, however, that such information may be disclosed to your Representatives\nwho are actively and directly participating in your evaluation of the Transaction or who otherwise need to know such\ninformation for the sole purpose of evaluating the Transaction and who are informed by you of the confidential nature of\nthe information. Without limiting the generality of the foregoing, you further agree that you will not, directly or indirectly,\nshare the Evaluation Material with or enter into any agreement, arrangement or understanding, or have any discussions\nwhich would reasonably be expected to lead to such an agreement, arrangement or understanding with any other\nperson, including other potential bidders and equity financing sources (other than your Representatives as permitted\nabove) regarding a possible transaction involving the Company without the prior written consent of the Company, which\nconsent may be given, withheld or conditioned in its sole discretion, and only upon such person executing a\nconfidentiality agreement in favor of the Company with terms and conditions consistent with this letter agreement. You\nwill cause your Representatives to observe the terms of this letter agreement and you will be responsible for any breach\nof this letter agreement by your Representatives. The term “Law,” means any applicable law or regulation (including,\nwithout limitation, any rule, regulation or policy statement of any organized securities exchange, market or automated\nquotation system on which any of your securities are listed or quoted) or by valid legal process.\n2. If you or any of your Representatives are requested pursuant to, or required by, Law to disclose any\nEvaluation Material or other information concerning the Company or the Transaction, prior to any such disclosure, you\nwill, to the extent not legally prohibited, notify the Company promptly of any such request or requirement so that the\nCompany may seek a protective order or other appropriate remedy, or, in the Company's sole discretion, waive\ncompliance with the terms of this letter agreement. If no such protective order or other remedy is obtained or the\nCompany waives compliance with the terms of this letter agreement, you or your Representatives will disclose only that\nportion of the Evaluation Material or other information which you are advised in writing by your legal counsel is legally\nrequired to be disclosed and will use best efforts to ensure any such information so disclosed will be accorded\nconfidential treatment.\n3. If you decide thatyou do not wish to proceed with the Transaction, you will promptly inform the Company\nof that decision. In that case, or at any time upon the request of the Company for any reason, you will promptly (and in\nany case, within 14 days of the Company's request) (a) deliver to the Company all Evaluation Material furnished to you or\nyour Representatives by or on behalf of the Company (and all copies thereof whether received from the Company or\nmade by you or your Representatives) and (b) either deliver to the Company or destroy all materials prepared by you or\nyour Representatives which constitute Evaluation Material without retaining a copy of any such material, with any such\ndestruction certified to the Company in writing by your authorized officer supervising such destruction; provided that you\nmay retain, in a secure location, a copy of such documents and records as is required to be retained pursuant to any\ninternal document retention policy, law, regulation or rule to which you arc subject. Notwithstanding the return or\ndestruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of\nconfidentiality and all other obligations under this letter agreement.\n4. You acknowledge that neither the Company, nor any of its Representatives nor any of their respective\ndirectors, officers, employees, or agents makes any express or implied representation or warranty as to the accuracy or\ncompleteness of any Evaluation Material. You agree that none of such Persons will have any liability to you or to any of\nyour Representatives, relating to or resulting from the use of any Evaluation Material or for any errors therein or\nomissions therefrom. You also agree that you are not entitled to rely on the accuracy or completeness of any Evaluation\nMaterial and that you may only rely on those representations and warranties that may be contained in any definitive\nagreement executed and delivered by you and the Company and any other necessary parties with respect to the\nTransaction, subject to the terms and conditions as may be contained therein. For the purposes hereof, the term\n“definitive agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it\ninclude any written or oral acceptance of an offer or bid on your part.\n5. You agree that the Evaluation Information is and shall remain the property of the Company and that the\nCompany has not granted and will not grant you any license, copyright or similar right with respect to any of the\nEvaluation Information or any other material made available to you by or on behalf of the Company.\n6. For a period of eighteen months from the date of this letter agreement, neither you nor any of your\nRepresentatives will, directly or indirectly, solicit, recruit or otherwise induce or encourage any person employed by the\nCompany to terminate such employment or to accept employment or enter into any consulting or other agreement with\nyou or your Representatives or employ in any capacity (as a director, officer, employee, consultant or otherwise) any\nperson who served the Company as a director, officer, employee, consultant or otherwise as of the date hereof or any\ntime during the evaluation of the Transaction without obtaining the prior written consent of the Company; provided,\nhowever, that you will not be prohibited from making general employment solicitations not directed at the employees of\nthe Company or hiring any individuals who respond to such solicitations.\n7. You acknowledge that you are aware and that your Representatives have been advised that the United\nStates securities Laws prohibit any Person having material, non-public information about an issuer from trading the\nsecurities of that company orfrom communicating such information to other Persons.\n8. For a period of eighteen months from the date of this letter agreement, neither you nor any of your\nRepresentatives or respective affiliates will in any manner, directly or indirectly, without the prior written consent of the\nCompany or its board ofdirectors (or a duly authorized committee thereof):\n(a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise,\nany securities or direct or indirect rights or options to acquire any securities of the Company or any of its\nsubsidiaries, or of any successor to or Person in control of the Company, or any assets of the Company or of its\ndivisions or of any such successor or controlling Person;\n(b) make, or in any way participate, directly or indirectly, in any, “solicitation” of “proxies” (as such\nterms are used in the rules of the United States Securities and Exchange Commission), or advise or seek to\ninfluence any Person with respectto the voting of any voting securities of the Company or any of its subsidiaries;\n(c) make any public announcement with respect to, or submit a proposal (whether public or\notherwise) for, or offer of (with or without conditions) any tender or exchange offer, merger, recapitalization,\nreorganization, business combination, restructuring, extraordinary dividend or distribution, liquidation, dissolution\nor other extraordinary transaction involving the Company or any of its subsidiaries or any of their securities or\nassets;\n(d) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended, in connection with any of the foregoing;\n(e) otherwise act, alone or in concert with others (including, without limitation, by providin\nfinancing to another party), to seek or offerto control or influence the management, board ofdirectors, policies or\naffairs of the Company;\n(f) announce any intention to effect, cause or participate in, or advise, assist or encourage any\nother Persons in connection with any of the foregoing; or\n(g) request the Company or any of its Representatives, directly or indirectly, to amend or waive any\nprovision of this paragraph.\nYou will promptly advise the Company of any inquiry or proposal made to you with respect to any of the\nforegoing.\n9. Robert W. Baird & Co., as our authorized Representative, will coordinate the due diligence process for\nthe Transaction. All (a) communications regarding the Transaction, (b) requests for additional information, facility tours,\nmanagement meetings and other management contacts and (c) discussions or questions regarding procedures with\nrespect to the Transaction must be first submitted or directed to Robert W. Baird & Co., and may not be submitted or\ndirected to any person exceptas authorized by RobertW. Baird & Co.\n10. No contract or agreement providing for any transaction involving you and the Company will be deemed\nto exist between you and the Company unless and until a definitive agreement has been executed and delivered by you\nand the Company and any other necessary parties. Unless and until a definitive agreement has been entered into\nbetween you and the Company regarding a transaction between you and the Company, neither the Company nor you will\nbe under any legal obligation or have any liability to the other party or any other Person of any kind whatsoever with\nrespect to such a transaction by virtue of this letter agreement except for the matters specifically agreed to in this letter\nagreement. You also acknowledge and agree that (a) the Company and its Representatives will conduct the process\n(which process may or may not result in a transaction with the Company) in such manner as the Company, in its sole\ndiscretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third\nparty without notice to you) and (b) the Company reserves the right to change, in its sole discretion, at any time and\nwithout notice to you, the procedures relating to our and your consideration of the Transaction (including, without\nlimitation, terminating all further discussions with you and requesting that you return or destroy the Evaluation Material as\ndescribed in paragraph 3 above).\n11. It is understood and agreed that money damages would be an insufficient remedy for any breach of this\nletter agreement by you or your Representatives and that without prejudice to the rights and remedies otherwise\navailable to the Company, the Company is entitled to equitable relief by way of injunction, specific performance or\notherwise if you or any of your Representatives breach or threaten to breach any of the provisions of this letter\nagreement without the necessity to prove actual damages or post any bond. You agree to reimburse the Company for\nreasonable legal fees and other costs incurred to enforce this letter agreement.\n12. It is further understood and agreed that no failure or delay by the Company in exercising any right,\npower or privilege under this letter agreement, and no course of dealing between the parties, will operate as a waiver\nthereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any\nright, power or privilege underthis letter agreement.\n13. This letter agreement and all disputes and controversies arising hereunder or related hereto, will be\ngoverned and construed in accordance with the Laws of the State of Indiana without regard to principles of conflicts of\nlaw that would apply any other law.\n14. Any action or proceeding arising out of or relating to this letter agreement or the transactions\ncontemplated hereby may be brought in the courts of the State of Indiana or, if it has or can acquire jurisdiction, in the\nUnited States District Court for the Northern District of Indiana. Each of the parties knowingly, voluntarily and irrevocably\nsubmits to the exclusive jurisdiction of each such court in any such action or proceeding and waives any objection it may\nnow or hereafter have to venue or to convenience of forum. You further agree that service of any process, summons,\nnotice or document by United States certified mail to your address set forth above will be effective service of process for\nany action or proceeding brought againstyou in any such court.\n15. Any assignment of this letter agreement by you without the Company's prior written consent is void.\n16. If any provision of this letter agreement is determined by a court of competentjurisdiction to be invalid,\nillegal or unenforceable, in whole or in part, the remaining provisions of this letter agreement will remain in full force and\neffect to the fullest extent permitted by applicable law.\n17. Except as set forth in Section 6 and Section 8, all of the obligations of the parties under this letter\nagreement shall continue in perpetuity.\n18. This letter agreement contains the entire agreement between you and the Company concerning\nconfidentiality of the Evaluation Material. No modification of this letter agreement or waiver of the terms and conditions\nhereofwill be binding upon you orthe Company, unless approved in writing by each of you and the Company.\n19. This letter agreement may be executed in any number of counterparts, including by electroni'\ntransmission in portable document format or “tiff' format, and each of such counterparts shall for all purposes be deemed\noriginal, and all such counterparts shall together constitute one and the same instrument.\n[Signature page follows.]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to\nthe undersigned, whereupon this letteragreementwill become a binding agreement between you and the Company.\nVery truly yours,\nPROJECT REDHAWK\nSupreme Industries, Inc.\nBy: /s/ Matthew W. Long\nName: IV attfiew W. Eong\nTitle: Chief Financial Officer\nAgreed and accepted as of the date first written above\nWABASH NATIONAL CORPORATION\nBy: /s/J ames A. ScarceIIi\nName: | ames A. ScarceIII\nTitle: Vice President, Corporate Strategy	Exhibit (d)(3)\nSTRICTLY PRIVATE AND CONFIDENTIAL\nApril 24, 2017\nWabash National Corporation\n1000 Sagamore Parkway South\nLafayette, IN 47905\nAttention:\nMr. J ames Scarcelli\nVP, Corporate Strategy\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction with Project REDHAWK, a Delaware corporation,\nand/or its subsidiaries and affiliates (collectively, the "Company") (the "Transaction"), the Company is prepared to make\navailable to you certain confidential and proprietary information relating to the Company which is not available to the\ngeneral public. All such information, whether written, oral or electronic, whether furnished before or after the date of this\nletter agreement by the Company or its Representatives (as defined below), and regardless of the manner or form in\nwhich it is furnished, is collectively referred to in this letter agreement as "Evaluation Material." The term "Evaluation\nMaterial" also includes all notes, summaries, analyses, compilations, studies, or other documents or media prepared by\nyou or your Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to you\nor your Representatives pursuant to this letter agreement The term Evaluation Material does not include, however,\ninformation which (a) is or becomes generally available to the public other than as a result of direct or indirect disclosure\nby\nyou\nor\nyour Representatives in violation of the terms of this letter agreement or (b) prior to its disclosure to you by the\nCompany or its Representatives, is or becomes available to you on a non-confidential basis from a source (other than the\nCompany or any of its Representatives) which is not prohibited from disclosing such information to you by a legal,\ncontractual or fiduciary obligation to the Company or any other Person. The term "Representatives" means, as to any\nPerson, its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants,\nconsultants, financial advisors and non-convertible debt sources of financing for the Transaction, and additionally as to\nyou, upon receiving prior written consent of the Company, which consent may be given, withheld or conditioned in its sole\ndiscretion, your potential sources of equity financing for the Transaction). The term "Person" as used in this\nletter\nagreement is broadly interpreted to include any corporation, company, partnership or other legal or business entity or any\nindividual.\nAccordingly, in consideration of the valuation Materia being furnished to you, you agree that:\n1.\nExcept as required by Law (and only after compliance with paragraph 2 below), unless otherwise agreed\nto in writing by the Company, you will (a) not use the Evaluation Material for any purpose other than in connection with\nyour evaluation of the Transaction, (b) keep the Evaluation Material confidential and not disclose any Evaluation Material\nin any manner whatsoever and (c) not disclose to any other Person the fact the Evaluation Material exists or has been\nmade available, that you are considering the Transaction, or that discussions or negotiations are taking place concerning\nthe Transaction or involving the Company or any of the terms, conditions, or other facts with respect thereto (including,\nwithout limitation, the status thereof); provided, however, that such information may be disclosed to your epresentatives\nwho are actively and directly participating in your evaluation of the Transaction or who otherwise need to know such\ninformation for the sole purpose of evaluating the Transaction and who are informed by you of the confidential nature of\nthe information. Without limiting the generality of the foregoing, you further agree that you will not, directly or indirectly,\nshare the Evaluation Material with or enter into any agreement, arrangement or understanding, or have any discussions\nwhich would reasonably be expected to lead to such an agreement, arrangement or understanding with any other\nperson, including other potential bidders and equity financing sources (other than your Representatives as permitted\nabove) regarding a possible transaction involving the Company without the prior written consent of the Company, which\nconsent may be given, withheld or conditioned in its sole discretion, and only upon such person executing a\nconfidentiality agreement in favor of the Company with terms and conditions consistent with this letter agreement. You\nwill cause your Representatives to observe the terms of this letter agreement and you will be responsible for any breach\nof this letter agreement by your Representatives The term "Law," means any applicable law or regulation (including,\nwithout limitation, any rule, regulation or policy statement of any organized securities exchange, market or automated\nquotation system on which any of your securities are listed or quoted) or by valid legal process.\n2.\nIf you or any of your Representatives are requested pursuant to, or required by, Law to disclose any\nEvaluation Material or other information concerning the Company or the Transaction, prior to any such disclosure, you\nwill, to the extent not legally prohibited, notify the Company promptly of any such request or requirement so that the\nCompany may seek a protective order or other appropriate remedy, or, in the Company's sole discretion, waive\ncompliance with the terms of this letter agreement. If no such protective order or other remedy is obtained or the\nCompany waives compliance with the terms of this letter agreement, you or your Representatives will disclose only that\nportion of the Evaluation Material or other information which you are advised in writing by your legal counsel is legally\nrequired to be disclosed and will use best efforts to ensure any such information so disclosed wil be accorded\nconfidential treatment.\n3.\nIf you decide that you do not wish to proceed with the Transaction, you will promptly inform the Company\nof that decision. In that case, or at any time upon the request of the Company for any reason, you will promptly (and in\nany case, within 14 days of the Company's request) (a) deliver to the Company all Evaluation Material furnished to you or\nyour Representatives by or on behalf of the Company (and all copies thereof whether received from the Company or\nmade by you or your Representatives) and (b) either deliver to the Company or destroy all materials prepared by you or\nyour Representatives which constitute Evaluation Material without retaining a copy of any such material, with any such\ndestruction certified to the Company in writing by your authorized officer supervising such destruction; provided that you\nmay retain, in a secure location, a copy of such documents and records as is required to be retained pursuant to any\ninternal document retention policy, law, regulation or rule to which you arc subject. Notwithstanding the\nreturn\nor\ndestruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of\nconfidentiality and all other obligations under this letter agreement.\n4.\nYou acknowledge that neither the Company, nor any of its Representatives nor any of their respective\ndirectors, officers, employees, or agents makes any express or implied representation or warranty as to the accuracy or\ncompleteness of any Evaluation Material. You agree that none of such Persons will have any liability to you or to any of\nyour Representatives, relating to or resulting from the use of any Evaluation Material or for any errors therein or\nomissions therefrom. You also agree that you are not entitled to rely on the accuracy or completeness of any Evaluation\nMaterial and that you may only rely on those representations and warranties that may be contained in any definitive\nagreement executed and delivered by you and the Company and any other necessary parties with respect to the\nTransaction, subject to the terms and conditions as may be contained therein. For the purposes hereof, the term\n"definitive agreement" does not include an executed letter of intent or any other preliminary written agreement, nor does\nit\ninclude any written or oral acceptance of an offer or bid on your part.\n- 2 -\n5.\nYou agree that the Evaluation Information is and shall remain the property of the Company and that the\nCompany has not granted and will not grant you any license, copyright or similar right with respect to any of the\nEvaluation Information or any other material made available to you by or on behalf of the Company.\n6.\nFor a period of eighteen months from the date of this letter agreement, neither you nor any\nof\nyour\nRepresentatives will, directly or indirectly, solicit, recruit or otherwise induce or encourage any person employed by the\nCompany to terminate such employment or to accept employment or enter into any consulting or other agreement with\nyou or your Representatives or employ in any capacity (as a director, officer, employee, consultant or otherwise) any\nperson who served the Company as a director, officer, employee, consultant or otherwise as of the date hereof or any\ntime during the evaluation of the Transaction without obtaining the prior written consent of the Company; provided,\nhowever, that you will not be prohibited from making general employment solicitations not directed at the employees of\nthe Company or hiring any individuals who respond to such solicitations.\n7.\nYou acknowledge that you are aware and that your Representatives have been advised that the United\nStates securities Laws prohibit any Person having material, non-public information about an issuer from trading the\nsecurities of that company or from communicating such information to other Persons.\n8.\nFor a period of eighteen months from the date of this letter agreement, neither you nor any of your\nRepresentatives or respective affiliates will in any manner, directly or indirectly, without the prior written consent of the\nCompany or its board of directors (or a duly authorized committee thereof):\n(a)\nacquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise,\nany securities or direct or indirect rights or options to acquire any securities of the Company or any of its\nsubsidiaries, or of any successor to or Person in control of the Company, or any assets of the Company or of its\ndivisions or of any such successor or controlling Person;\n(b)\nmake, or in any way participate, directly or indirectly, in any, "solicitation" of "proxies" (as such\nterms are used in the rules of the United States Securities and Exchange Commission), or advise or seek to\ninfluence any Person with respect to the voting of any voting securities of the Company or any of its subsidiaries;\n(c)\nmake any public announcement with respect to, or submit a proposal (whether public or\notherwise) for, or offer of (with or without conditions) any tender or exchange offer, merger, recapitalization,\nreorganization, business combination, restructuring, extraordinary dividend or distribution, liquidation, dissolution\nor other extraordinary transaction involving the Company or any of its subsidiaries or any of their securities or\nassets;\n(d)\nform, join or in any way participate in a "group" as defined in Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended, in connection with any of the foregoing;\n(e)\notherwise act, alone or in concert with others (including, without limitation, by providin\nfinancing to another party), to seek or offer to control or influence the management, board of directors, policies or\naffairs of the Company;\n(f)\nannounce any intention to effect, cause or participate in, or advise, assist or encourage any\nother Persons in connection with any of the foregoing; or\n(g)\nrequest the Company or any of its Representatives, directly or indirectly, to amend or waive any\nprovision of this paragraph\nYou will promptly advise the Company of any inquiry or proposal made to you with respect to any of the\nforegoing.\n- 3 -\n9.\nRobert W. Baird & Co., as our authorized Representative, will coordinate the due diligence process for\nthe Transaction. AIl (a) communications regarding the Transaction, (b) requests for additional information, facility tours,\nmanagement meetings and other management contacts and (c) discussions or questions regarding procedures with\nrespect to the Transaction must be first submitted or directed to Robert W. Baird & Co., and may not be submitted or\ndirected to any person except as authorized by Robert W. Baird & Co.\n10.\nNo contract or agreement providing for any transaction involving you and the Company will be deemed\nto exist between you and the Company unless and unti a definitive agreement has been executed and delivered by you\nand the Company and any other necessary parties. Unless and until a definitive agreement has been entered into\nbetween you and the Company regarding a transaction between you and the Company, neither the Company nor you will\nbe under any legal obligation or have any liability to the other party or any other Person of any kind whatsoever with\nrespect to such a transaction by virtue of this letter agreement except for the matters specifically agreed to in this letter\nagreement You also acknowledge and agree that (a) the Company and its Representatives will conduct the process\n(which process may or may not result in a transaction with the Company) in such manner as the Company, in its sole\ndiscretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third\nparty without notice to you) and (b) the Company reserves the right to change, in its sole discretion at any time and\nwithout notice to you, the procedures relating to our and your consideration of the Transaction (including, without\nlimitation, terminating all further discussions with you and requesting that you return or destroy the valuation Materia as\ndescribed in paragraph 3 above).\n11.\nIt is understood and agreed that money damages would be an insufficient remedy for any breach of this\nletter agreement by you or your Representatives and that without prejudice to the rights and remedies otherwise\navailable to the Company, the Company is entitled to equitable relief by way of injunction, specific performance or\notherwise if you or any of your Representatives breach or threaten to breach any of the provisions of this letter\nagreement without the necessity to prove actua damages or post any bond. You agree to reimburse the Company for\nreasonable legal fees and other costs incurred to enforce this letter agreement\n12.\nit is further understood and agreed that no failure or delay by the Company in exercising any right,\npower or privilege under this letter agreement, and no course of dealing between the parties, will operate as a waiver\nthereof, nor will any single or partia exercise thereof preclude any other or further exercise thereof or the exercise of any\nright, power or privilege under this letter agreement\n13.\nThis letter agreement and all disputes and controversies arising hereunder or related hereto, will be\ngoverned and construed in accordance with the Laws of the State of Indiana without regard to principles of conflicts of\nlaw that would apply any other law.\n14.\nAny action or proceeding arising out of or relating to this letter agreement or the transaction\ncontemplated hereby may be brought in the courts of the State of Indiana or, if it has or can acquire jurisdiction, in the\nUnited States District Court for the Northern District of Indiana. Each of the parties knowingly, voluntarily and irrevocably\nsubmits to the exclusive jurisdiction of each such court in any such action or proceeding and waives any objection it may\nnow or hereafter have to venue or to convenience of forum. You further agree that service of any process, summons,\nnotice or document by United States certified mail to your address set forth above will be effective service of process for\nany action or proceeding brought against you in any such court.\n15.\nAny assignment of this letter agreement by you without the Company's prior written consent is void.\n16.\nIf any provision of this letter agreement is determined by a court of competent jurisdiction to be invalid,\nillegal or unenforceable, in whole or in part, the remaining provisions of this letter agreement wil remain in full force and\neffect to the fullest extent permitted by applicable law.\n17.\nExcept as set forth in Section 6 and Section 8, all of the obligations of the parties under this letter\nagreement shall continue in perpetuity.\n- 4 -\n18.\nThis letter agreement contains the entire agreement between you and the Company concerning\nconfidentiality of the Evaluation Material. No modification of this letter agreement or waiver of the terms and conditions\nhereof will be binding upon you or the Company, unless approved in writing by each of you and the Company.\n19.\nThis letter agreement may be executed in any number of counterparts, including by electroni\ntransmission in portable document format or "tiff format, and each of such counterparts shall for all purposes be deemed\noriginal, and all such counterparts shall together constitute one and the same instrument.\n[Signature page follows.]\n5\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to\nthe undersigned, whereupon this letter agreement will become a binding agreement between you and the Company.\nVery truly yours,\nPROJECT REDHAWK\nSupreme Industries, Inc.\nBy: /s/ Matthew W. Long\nName: Matthew W. Long\nTitle: Chief Financial Officer\nAgreed and accepted as of the date first written above\nWABASH NATIONAL CORPORATION\nBy:\n/s/ J ames A. Scarcelli\nName: ames A. SCarceli\nTitle: Vice President, Corporate Strategy	Exhibit (d)(3)\nSTRICTLY PRIVATE AND CONFIDENTIAL\nApril 24, 2017\nWabash National Corporation\n1000 Sagamore Parkway South\nLafayette, IN 47905\nAttention:\nMr. James Scarcelli\nVP, Corporate Strategy\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction with Project REDHAWK, a Delaware corporation,\nand/or its subsidiaries and affiliates (collectively, the “Company”) (the “Transaction”), the Company is prepared to make\navailable to you certain confidential and proprietary information relating to the Company which is not available to the\ngeneral public. All such information, whether written, oral or electronic, whether furnished before or after the date of this\nletter agreement by the Company or its Representatives (as defined below), and regardless of the manner or form in\nwhich it is furnished, is collectively referred to in this letter agreement as “Evaluation Material.” The term “Evaluation\nMaterial” also includes all notes, summaries, analyses, compilations, studies, or other documents or media prepared by\nyou or your Representatives which contain, reflect or are based upon, in whole or in part, the information furnished to you\nor your Representatives pursuant to this letter agreement. The term Evaluation Material does not include, however,\ninformation which (a) is or becomes generally available to the public other than as a result of direct or indirect disclosure\nby you or your Representatives in violation of the terms of this letter agreement or (b) prior to its disclosure to you by the\nCompany or its Representatives, is or becomes available to you on a non-confidential basis from a source (other than the\nCompany or any of its Representatives) which is not prohibited from disclosing such information to you by a legal,\ncontractual or fiduciary obligation to the Company or any other Person. The term “Representatives” means, as to any\nPerson, its directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants,\nconsultants, financial advisors and non-convertible debt sources of financing for the Transaction, and additionally as to\nyou, upon receiving prior written consent of the Company, which consent may be given, withheld or conditioned in its sole\ndiscretion, your potential sources of equity financing for the Transaction). The term “Person” as used in this letter\nagreement is broadly interpreted to include any corporation, company, partnership or other legal or business entity or any\nindividual.\nAccordingly, in consideration of the Evaluation Material being furnished to you, you agree that:\n1.\nExcept as required by Law (and only after compliance with paragraph 2 below), unless otherwise agreed\nto in writing by the Company, you will (a) not use the Evaluation Material for any purpose other than in connection with\nyour evaluation of the Transaction, (b) keep the Evaluation Material confidential and not disclose any Evaluation Material\nin any manner whatsoever and (c) not disclose to any other Person the fact the Evaluation Material exists or has been\nmade available, that you are considering the Transaction, or that discussions or negotiations are taking place concerning\nthe Transaction or involving the Company or any of the terms, conditions, or other facts with respect thereto (including,\nwithout limitation, the status thereof); provided, however, that such information may be disclosed to your Representatives\nwho are actively and directly participating in your evaluation of the Transaction or who otherwise need to know such\ninformation for the sole purpose of evaluating the Transaction and who are informed by you of the confidential nature of\nthe information. Without limiting the generality of the foregoing, you further agree that you will not, directly or indirectly,\nshare the Evaluation Material with or enter into any agreement, arrangement or understanding, or have any discussions\nwhich would reasonably be expected to lead to such an agreement, arrangement or understanding with any other\nperson, including other potential bidders and equity financing sources (other than your Representatives as permitted\nabove) regarding a possible transaction involving the Company without the prior written consent of the Company, which\nconsent may be given, withheld or conditioned in its sole discretion, and only upon such person executing a\nconfidentiality agreement in favor of the Company with terms and conditions consistent with this letter agreement. You\nwill cause your Representatives to observe the terms of this letter agreement and you will be responsible for any breach\nof this letter agreement by your Representatives. The term “Law,” means any applicable law or regulation (including,\nwithout limitation, any rule, regulation or policy statement of any organized securities exchange, market or automated\nquotation system on which any of your securities are listed or quoted) or by valid legal process.\n2.\nIf you or any of your Representatives are requested pursuant to, or required by, Law to disclose any\nEvaluation Material or other information concerning the Company or the Transaction, prior to any such disclosure, you\nwill, to the extent not legally prohibited, notify the Company promptly of any such request or requirement so that the\nCompany may seek a protective order or other appropriate remedy, or, in the Company's sole discretion, waive\ncompliance with the terms of this letter agreement. If no such protective order or other remedy is obtained or the\nCompany waives compliance with the terms of this letter agreement, you or your Representatives will disclose only that\nportion of the Evaluation Material or other information which you are advised in writing by your legal counsel is legally\nrequired to be disclosed and will use best efforts to ensure any such information so disclosed will be accorded\nconfidential treatment.\n3.\nIf you decide that you do not wish to proceed with the Transaction, you will promptly inform the Company\nof that decision. In that case, or at any time upon the request of the Company for any reason, you will promptly (and in\nany case, within 14 days of the Company's request) (a) deliver to the Company all Evaluation Material furnished to you or\nyour Representatives by or on behalf of the Company (and all copies thereof whether received from the Company or\nmade by you or your Representatives) and (b) either deliver to the Company or destroy all materials prepared by you or\nyour Representatives which constitute Evaluation Material without retaining a copy of any such material, with any such\ndestruction certified to the Company in writing by your authorized officer supervising such destruction; provided that you\nmay retain, in a secure location, a copy of such documents and records as is required to be retained pursuant to any\ninternal document retention policy, law, regulation or rule to which you arc subject. Notwithstanding the return or\ndestruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of\nconfidentiality and all other obligations under this letter agreement.\n4.\nYou acknowledge that neither the Company, nor any of its Representatives nor any of their respective\ndirectors, officers, employees, or agents makes any express or implied representation or warranty as to the accuracy or\ncompleteness of any Evaluation Material. You agree that none of such Persons will have any liability to you or to any of\nyour Representatives, relating to or resulting from the use of any Evaluation Material or for any errors therein or\nomissions therefrom. You also agree that you are not entitled to rely on the accuracy or completeness of any Evaluation\nMaterial and that you may only rely on those representations and warranties that may be contained in any definitive\nagreement executed and delivered by you and the Company and any other necessary parties with respect to the\nTransaction, subject to the terms and conditions as may be contained therein. For the purposes hereof, the term\n“definitive agreement” does not include an executed letter of intent or any other preliminary written agreement, nor does it\ninclude any written or oral acceptance of an offer or bid on your part.\n-\n2-\n5.\nYou agree that the Evaluation Information is and shall remain the property of the Company and that the\nCompany has not granted and will not grant you any license, copyright or similar right with respect to any of the\nEvaluation Information or any other material made available to you by or on behalf of the Company.\n6.\nFor a period of eighteen months from the date of this letter agreement, neither you nor any of your\nRepresentatives will, directly or indirectly, solicit, recruit or otherwise induce or encourage any person employed by the\nCompany to terminate such employment or to accept employment or enter into any consulting or other agreement with\nyou or your Representatives or employ in any capacity (as a director, officer, employee, consultant or otherwise) any\nperson who served the Company as a director, officer, employee, consultant or otherwise as of the date hereof or any\ntime during the evaluation of the Transaction without obtaining the prior written consent of the Company; provided,\nhowever, that you will not be prohibited from making general employment solicitations not directed at the employees of\nthe Company or hiring any individuals who respond to such solicitations.\n7.\nYou acknowledge that you are aware and that your Representatives have been advised that the United\nStates securities Laws prohibit any Person having material, non-public information about an issuer from trading the\nsecurities of that company or from communicating such information to other Persons.\n8.\nFor a period of eighteen months from the date of this letter agreement, neither you nor any of your\nRepresentatives or respective affiliates will in any manner, directly or indirectly, without the prior written consent of the\nCompany or its board of directors (or a duly authorized committee thereof):\n(a)\nacquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise,\nany securities or direct or indirect rights or options to acquire any securities of the Company or any of its\nsubsidiaries, or of any successor to or Person in control of the Company, or any assets of the Company or of its\ndivisions or of any such successor or controlling Person;\n(b)\nmake, or in any way participate, directly or indirectly, in any, “solicitation” of “proxies” (as such\nterms are used in the rules of the United States Securities and Exchange Commission), or advise or seek to\ninfluence any Person with respect to the voting of any voting securities of the Company or any of its subsidiaries;\n(c)\nmake any public announcement with respect to, or submit a proposal (whether public or\notherwise) for, or offer of (with or without conditions) any tender or exchange offer, merger, recapitalization,\nreorganization, business combination, restructuring, extraordinary dividend or distribution, liquidation, dissolution\nor other extraordinary transaction involving the Company or any of its subsidiaries or any of their securities or\nassets;\n(d)\nform, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Securities\nExchange Act of 1934, as amended, in connection with any of the foregoing;\n(e)\notherwise act, alone or in concert with others (including, without limitation, by providing\nfinancing to another party), to seek or offer to control or influence the management, board of directors, policies or\naffairs of the Company;\n(f)\nannounce any intention to effect, cause or participate in, or advise, assist or encourage any\nother Persons in connection with any of the foregoing; or\n(g)\nrequest the Company or any of its Representatives, directly or indirectly, to amend or waive any\nprovision of this paragraph.\nYou will promptly advise the Company of any inquiry or proposal made to you with respect to any of the\nforegoing.\n-\n3-\n9.\nRobert W. Baird & Co., as our authorized Representative, will coordinate the due diligence process for\nthe Transaction. All (a) communications regarding the Transaction, (b) requests for additional information, facility tours,\nmanagement meetings and other management contacts and (c) discussions or questions regarding procedures with\nrespect to the Transaction must be first submitted or directed to Robert W. Baird & Co., and may not be submitted or\ndirected to any person except as authorized by Robert W. Baird & Co.\n10.\nNo contract or agreement providing for any transaction involving you and the Company will be deemed\nto exist between you and the Company unless and until a definitive agreement has been executed and delivered by you\nand the Company and any other necessary parties. Unless and until a definitive agreement has been entered into\nbetween you and the Company regarding a transaction between you and the Company, neither the Company nor you will\nbe under any legal obligation or have any liability to the other party or any other Person of any kind whatsoever with\nrespect to such a transaction by virtue of this letter agreement except for the matters specifically agreed to in this letter\nagreement. You also acknowledge and agree that (a) the Company and its Representatives will conduct the process\n(which process may or may not result in a transaction with the Company) in such manner as the Company, in its sole\ndiscretion, may determine (including, without limitation, negotiating and entering into a definitive agreement with any third\nparty without notice to you) and (b) the Company reserves the right to change, in its sole discretion, at any time and\nwithout notice to you, the procedures relating to our and your consideration of the Transaction (including, without\nlimitation, terminating all further discussions with you and requesting that you return or destroy the Evaluation Material as\ndescribed in paragraph 3 above).\n11.\nIt is understood and agreed that money damages would be an insufficient remedy for any breach of this\nletter agreement by you or your Representatives and that without prejudice to the rights and remedies otherwise\navailable to the Company, the Company is entitled to equitable relief by way of injunction, specific performance or\notherwise if you or any of your Representatives breach or threaten to breach any of the provisions of this letter\nagreement without the necessity to prove actual damages or post any bond. You agree to reimburse the Company for\nreasonable legal fees and other costs incurred to enforce this letter agreement.\n12.\nIt is further understood and agreed that no failure or delay by the Company in exercising any right,\npower or privilege under this letter agreement, and no course of dealing between the parties, will operate as a waiver\nthereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any\nright, power or privilege under this letter agreement.\n13.\nThis letter agreement and all disputes and controversies arising hereunder or related hereto, will be\ngoverned and construed in accordance with the Laws of the State of Indiana without regard to principles of conflicts of\nlaw that would apply any other law.\n14.\nAny action or proceeding arising out of or relating to this letter agreement or the transactions\ncontemplated hereby may be brought in the courts of the State of Indiana or, if it has or can acquire jurisdiction, in the\nUnited States District Court for the Northern District of Indiana. Each of the parties knowingly, voluntarily and irrevocably\nsubmits to the exclusive jurisdiction of each such court in any such action or proceeding and waives any objection it may\nnow or hereafter have to venue or to convenience of forum. You further agree that service of any process, summons,\nnotice or document by United States certified mail to your address set forth above will be effective service of process for\nany action or proceeding brought against you in any such court.\n15.\nAny assignment of this letter agreement by you without the Company's prior written consent is void.\n16.\nIf any provision of this letter agreement is determined by a court of competent jurisdiction to be invalid,\nillegal or unenforceable, in whole or in part, the remaining provisions of this letter agreement will remain in full force and\neffect to the fullest extent permitted by applicable law.\n17.\nExcept as set forth in Section 6 and Section 8, all of the obligations of the parties under this letter\nagreement shall continue in perpetuity.\n-\n4-\n18.\nThis letter agreement contains the entire agreement between you and the Company concerning\nconfidentiality of the Evaluation Material. No modification of this letter agreement or waiver of the terms and conditions\nhereof will be binding upon you or the Company, unless approved in writing by each of you and the Company.\n19.\nThis letter agreement may be executed in any number of counterparts, including by electronic\ntransmission in portable document format or “tiff' format, and each of such counterparts shall for all purposes be deemed\noriginal, and all such counterparts shall together constitute one and the same instrument.\n[Signature page follows.]\n-\n5-\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to\nthe undersigned, whereupon this letter agreement will become a binding agreement between you and the Company.\nVery truly yours,\nPROJECT REDHAWK\nSupreme Industries, Inc.\nBy: /s/ Matthew W. Long\nName: Matthew W. Long\nTitle: Chief Financial Officer\nAgreed and accepted as of the date first written above\nWABASH NATIONAL CORPORATION\nBy: /s/ James A. Scarcelli\nName: James A. Scarcelli\nTitle: Vice President, Corporate Strategy
+d7f13a42cee7413d83f279f1a0f21b5c.pdf	jurisdiction	CONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of Confidentiality Agreement\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is made as of the ___ day of _____________,\n20__, by and between ___________________ (the “Disclosing Party’) and ________________ (the\n“Recipient”).\nWHEREAS, the Disclosing Party is a party to the Construction Completion Agreement, dated\nas of ______________, between Georgia Power Company for itself and as agent for the Vogtle Owners\n(collectively “Owners”) and Bechtel Power Corporation (“Bechtel”) under which Bechtel will perform certain\nagreed-to services for Owners for the completion of the Vogtle 3 & 4 project (“Construction Completion\nAgreement”); and\nWHEREAS, the Disclosing Party desires to disclose to Recipient certain confidential and/or\nproprietary information which is either marked as being confidential at the time of disclosure, or of a nature\nthat the Recipient can reasonably be expected to ascertain the confidential nature of such information at the\ntime of receipt (in either case, “Confidential and Proprietary Information”) of Disclosing Party, Bechtel,\nOwners, Westinghouse Electric Company, LLC (“Westinghouse”), WECTEC Global Project Services Inc.\n(“WECTEC”), and/or another third party, as the case may be; and\nWHEREAS, under the terms of the Construction Completion Agreement, the Disclosing Party\nand the Recipient are required to enter into this Agreement as a condition to disclosure of such Confidential\nand Proprietary Information to the Recipient.\nNOW THEREFORE, for and in consideration of the premises and the mutual promises\nhereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby\nacknowledged, the parties hereto hereby agree as follows:\n1.\nRecipient shall maintain the confidentiality of all Confidential and Proprietary Information\ndisclosed to it hereunder, and shall not use such Confidential and Proprietary Information for any purpose other\nthan the purposes of construction, testing, completion and defense of ITAACs, startup, trouble-shooting,\nresponse to plant events, inspection, evaluation of system or component performance, scheduling,\ninvestigations, operation, maintenance, training, repair, licensing, modification, decommissioning and\ncompliance with laws or the requirements of governmental authorities, in each case as it relates to the Vogtle\n3&4 project (the “Purpose”).\n__________________________\n2 Owners are defined as Georgia Power Company, a Georgia Corporation, Oglethorpe Power Corporation (An Electric\nMembership Corporation), an electric membership corporation formed under the laws of the State of Georgia, Municipal\nElectric Authority of Georgia, a public body corporate and politic and an instrumentality of the State of Georgia, MEAG\nPower SPVJ, LLC, MEAG Power SPVM, LLC, MEAG Power SPVP, LLC, each a Georgia limited liability company,\nand The City of Dalton, Georgia, an incorporated municipality in the State of Georgia acting by and through its Board of\nWater, Light and Sinking Fund Commissioners. Southern Nuclear Operating Company, Inc. (“SNC”) is the licensed\noperator of Vogtle 3 and 4 and is Owners’ agent for the purposes of implementation and administration of the\nConstruction Completion Agreement.\nCONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of Confidentiality Agreement\n2. Recipient shall not transmit or further disclose such Confidential and Proprietary Information to\nany third party, including, without limitation, parent organizations of Recipient, sister organizations of\nRecipient, subsidiaries of Recipient, consultants of Recipient or subcontractors of Recipient, unless such third\nparty has entered into a confidentiality agreement with Disclosing Party substantially in the form of this\nAgreement.\n3. In the event that the Recipient or any of its representatives are requested or required in any\nproceeding or by any governmental authority to disclose any of the Confidential and Proprietary Information,\nthe Recipient shall provide the Disclosing Party with prompt written notice of such request or requirement so\nthat the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance\nwith the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of\na waiver from the Disclosing Party, the Recipient or any of its representatives are nonetheless, in the written\nopinion of their counsel, legally compelled to disclose such information, it or its representatives may, without\nliability hereunder, disclose only that portion of the Confidential and Proprietary Information which such\ncounsel advises the Recipient is legally required to be disclosed, provided that the Recipient exercises its\nreasonable efforts to preserve the confidentiality of the Confidential and Proprietary Information, including,\nwithout limitation, by cooperating with the Disclosing Party to obtain an appropriate protective order or other\nreliable assurance that confidential treatment will be accorded the Confidential and Proprietary Information.\n4. Except where necessary in furtherance of the Purpose, Recipient shall not make any copy or in any\nway reproduce or excerpt such Confidential and Proprietary Information except as authorized by the Disclosing\nParty in writing prior to such reproduction or excerption. Any such copies or excerpts shall include all\nproprietary notices and designations. Upon the written request of the Disclosing Party, the Confidential and\nProprietary Information provided hereunder and any such copies or excerpts thereof shall be returned to the\nDisclosing Party, or, at the sole option and request of the Disclosing Party, Recipient shall destroy such\ninformation and any such copies and/or excerpts and certify in writing to the Disclosing Party that such\ninformation has in fact been destroyed (but for a single copy retained for legal archival purposes, which shall\ncontinue to be subject to the provisions of this Agreement).\n5. Nothing herein shall apply to any information which is:\n(a) now generally known or readily available to the trade or public or which becomes so\nknown or readily available without fault of the Recipient; or\n(b) rightfully possessed by the Recipient without restriction prior to its disclosure hereunder\nby the Disclosing Party; or\n(c) acquired from a third party without restriction, provided that the Recipient does not know,\nor have reason to know, or is not informed subsequent to disclosure by such third\nparty and prior to disclosure by the Recipient that such information was acquired\nunder an obligation of confidentiality.\nCONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of Confidentiality Agreement\n6. It is mutually understood that nothing herein shall be construed as granting or implying any right\nunder any letters patent, or to use any Confidential and Proprietary Information claimed therein, or as\npermitting Recipient to unfairly obtain the right to use Confidential and Proprietary Information which\nbecomes publicly known through an improper act or omission on its part.\n7. Neither Owners, Bechtel, Westinghouse, WECTEC, nor their affiliates make any warranty or\nrepresentation whatsoever to the Recipient as to the sufficiency or accuracy of the Confidential and Proprietary\nInformation provided hereunder, the ability of Recipient to use the Confidential and Proprietary Information\nfor its intended purpose, or as to the result to be obtained therefrom.\n8. Neither Owners, Bechtel, Westinghouse, WECTEC, nor their affiliates, suppliers, or subcontractors\nof any tier shall be liable with respect to or resulting from the use (or the results of such use) or misuse of any\nConfidential and Proprietary Information furnished hereunder.\n9. Nothing in this Agreement shall obligate the Disclosing Party to provide any specific information\nthat it otherwise desires to withhold.\n10. Recipient agrees to fully comply with all laws and regulations with regard to the Confidential and\nProprietary Information transmitted hereunder.\n11. Recipient shall not, at any time file, cause or authorize the filing of any patent application in any\ncountry in respect of any invention derived from the Confidential and Proprietary Information supplied\nhereunder.\n12. Recipient shall not assign this Agreement. This Agreement shall be binding upon the Recipient\nand its successors and shall benefit and be enforceable by Owners, Bechtel, Westinghouse, or WECTEC and\neach of their respective successors and assigns.\n13.\nIf any of the terms of this Agreement are violated by Recipient, the Owners, Bechtel,\nWestinghouse, or WECTEC, as the case may be, shall be entitled to an injunction to be issued by any court of\ncompetent jurisdiction, enjoining and restraining the Recipient from such violation.\n14. If any provision of this Agreement is held invalid in any respect, it shall not affect the validity of\nany other provision of this Agreement. If any provision of this Agreement is held to be unreasonable as to the\ntime, scope or otherwise, it shall be construed by limiting and reducing it so as to be enforceable under then\napplicable law.\n15. This Agreement shall be governed in accordance with the laws of the State of Georgia without\ngiving effect to any choice of law, provision, or rule (whether of Georgia or any other jurisdiction) that would\ncause the application of the laws of any jurisdiction other than Georgia.\nCONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of Confidentiality Agreement\nIN WITNESS WHEREOF, the parties have hereto set their respective signatures to this Agreement.\nDISCLOSING PARTY:\nBy:\nName:\nTitle:\nAddress:\nRECIPIENT:\nBy:\nName:\nTitle:\nAddress:	CONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of C onfidentiality Agreement\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (this ”A greement”) is made as of the ___ day of ,\n20__, by and between (the ”Disclosing Party’) and “___—___“(the\n”Recipient”).\nWHEREAS, the Disclosing Party is a party to the Construction Completion Agreement, dated\nas of ______________ , between Georgia Power Company for itself and as agent for the Vogtle Owners\n(collectively ”Owners”) and Bechtel Power Corporation (”Bechtel”) under which Bechtel will perform certain\nagreed-to services for Owners for the completion of the Vogtle 3 & 4 project (”Construction Completion\nA greement" ) ; and\nWHEREAS, the Disclosing Party desires to disclose to Recipient certain confidential and/or\nproprietary information which is either marked as being confidential at the time of disclosure, or of a nature\nthat the Recipient can reasonably be expected to ascertain the confidential nature of such information at the\ntime of receipt (in either case, ”Confidential and Proprietary Information”) of Disclosing Party, Bechtel,\nOwners, Westinghouse Electric Company, LLC (”Westinghouse”), WECTEC Global Project Services Inc.\n(”WECTEC”), and/or another third party, as the case may be; and\nWHEREAS, under the terms of the Construction Completion Agreement, the Disclosing Party\nand the Recipient are required to enter into this Agreement as a condition to disclosure of such Confidential\nand Proprietary Information to the Recipient.\nNOW THEREFORE, for and in consideration of the premises and the mutual promises\nhereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby\nacknowledged, the parties hereto hereby agree as follows:\n1. Recipient shall maintain the confidentiality of all Confidential and Proprietary Information\ndisclosed to it hereunder, and shall not use such Confidential and Proprietary Information for any purpose other\nthan the purposes of construction, testing, completion and defense of ITAACs, startup, trouble-shooting,\nresponse to plant events, inspection, evaluation of system or component performance, scheduling,\ninvestigations, operation, maintenance, training, repair, licensing, modification, decommissioning and\ncompliance with laws or the requirements of governmental authorities, in each case as it relates to the Vogtle\n3&4 project (the ”Purpose”).\n \n2 Owners are defined as Georgia Power Company, a Georgia Corporation, Oglethorpe Power Corporation (An Electric\nMembership Corporation), an electric membership corporation formed under the laws of the State of Georgia, Municipal\nElectric Authority of Georgia, a public body corporate and politic and an instrumentality of the State of Georgia, MEAG\nPower SPV], LLC, MEAG Power SPV M, LLC, MEAG Power SPV P, LLC, each a Georgia limited liability company,\nand The City of Dalton, Georgia, an incorporated municipality in the State of Georgia acting by and through its Board of\nWater, Light and Sinking Fund Commissioners. Southern Nuclear Operating Company, Inc. ("SNC”) is the licensed\noperator of Vogtle 3 and 4 and is Owners’ agent for the purposes of implementation and administration of the\nConstruction Completion Agreement.\nCONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of C onfidentiality Agreement\n2. Recipient shall not transmit or further disclose such Confidential and Proprietary Information to\nany third party, including, without limitation, parent organizations of Recipient, sister organizations of\nRecipient, subsidiaries of Recipient, consultants of Recipient or subcontractors of Recipient, unless such third\nparty has entered into a confidentiality agreement with Disclosing Party substantially in the form of this\nAgreement.\n3. In the event that the Recipient or any of its representatives are requested or required in any\nproceeding or by any governmental authority to disclose any of the Confidential and Proprietary Information,\nthe Recipient shall provide the Disclosing Party with prompt written notice of such request or requirement so\nthat the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance\nwith the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of\na waiver from the Disclosing Party, the Recipient or any of its representatives are nonetheless, in the written\nopinion of their counsel, legally compelled to disclose such information, it or its representatives may, without\nliability hereunder, disclose only that portion of the Confidential and Proprietary Information which such\ncounsel advises the Recipient is legally required to be disclosed, provided that the Recipient exercises its\nreasonable efforts to preserve the confidentiality of the Confidential and Proprietary Information, including,\nwithout limitation, by cooperating with the Disclosing Party to obtain an appropriate protective order or other\nreliable assurance that confidential treatment will be accorded the Confidential and Proprietary Information.\n4. Except where necessary in furtherance of the Purpose, Recipient shall not make any copy or in any\nway reproduce or excerpt such Confidential and Proprietary Information except as authorized by the Disclosing\nParty in writing prior to such reproduction or excerption. Any such copies or excerpts shall include all\nproprietary notices and designations. Upon the written request of the Disclosing Party, the Confidential and\nProprietary Information provided hereunder and any such copies or excerpts thereof shall be returned to the\nDisclosing Party, or, at the sole option and request of the Disclosing Party, Recipient shall destroy such\ninformation and any such copies and/or excerpts and certify in writing to the Disclosing Party that such\ninformation has in fact been destroyed (but for a single copy retained for legal archival purposes, which shall\ncontinue to be subject to the provisions of this Agreement).\n5. Nothing herein shall apply to any information which is:\n(a) now generally known or readily available to the trade or public or which becomes so\nknown or readily available without fault of the Recipient; or\n(b) rightfully possessed by the Recipient without restriction prior to its disclosure hereunder\nby the Disclosing Party; or\n(c) acquired from a third party without restriction, provided that the Recipient does not know,\nor have reason to know, or is not informed subsequent to disclosure by such third\nparty and prior to disclosure by the Recipient that such information was acquired\nunder an obligation of confidentiality.\nCONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of C onfidentiality Agreement\n6. It is mutually understood that nothing herein shall be construed as granting or implying any right\nunder any letters patent, or to use any Confidential and Proprietary Information claimed therein, or as\npermitting Recipient to unfairly obtain the right to use Confidential and Proprietary Information which\nbecomes publicly known through an improper act or omission on its part.\n7. Neither Owners, Bechtel, Westinghouse, WECTEC, nor their affiliates make any warranty or\nrepresentation whatsoever to the Recipient as to the sufficiency or accuracy of the Confidential and Proprietary\nInformation provided hereunder, the ability of Recipient to use the Confidential and Proprietary Information\nfor its intended purpose, or as to the result to be obtained therefrom.\n8. Neither Owners, Bechtel, Westinghouse, WECTEC, nor their affiliates, suppliers, or subcontractors\nof any tier shall be liable with respect to or resulting from the use (or the results of such use) or misuse of any\nConfidential and Proprietary Information furnished hereunder.\n9. Nothing in this Agreement shall obligate the Disclosing Party to provide any specific information\nthat it otherwise desires to withhold.\n10. Recipient agrees to fully comply with all laws and regulations with regard to the Confidential and\nProprietary Information transmitted hereunder.\n11. Recipient shall not, at any time file, cause or authorize the filing of any patent application in any\ncountry in respect of any invention derived from the Confidential and Proprietary Information supplied\nhereunder.\n12. Recipient shall not assign this Agreement. This Agreement shall be binding upon the Recipient\nand its successors and shall benefit and be enforceable by Owners, Bechtel, Westinghouse, or WECTEC and\neach of their respective successors and assigns.\n13. If any of the terms of this Agreement are violated by Recipient, the Owners, Bechtel,\nWestinghouse, or WECTEC, as the case may be, shall be entitled to an injunction to be issued by any court of\ncompetent jurisdiction, enjoining and restraining the Recipient from such violation.\n14. If any provision of this Agreement is held invalid in any respect, it shall not affect the validity of\nany other provision of this Agreement. If any provision of this Agreement is held to be unreasonable as to the\ntime, scope or otherwise, it shall be construed by limiting and reducing it so as to be enforceable under then\napplicable law.\n15. This Agreement shall be governed in accordance with the laws of the State of Georgia without\ngiving effect to any choice of law, provision, or rule (whether of Georgia or any other jurisdiction) that would\ncause the application of the laws of any jurisdiction other than Georgia.\nCONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of C onfidentiality Agreement\nIN WITNESS WHEREOF, the parties have hereto set their respective signatures to this Agreement.\nDISC L OSING PARTY:\nBy:\nName:\nTitle:\nA ddress:\nRECIPIENT:\nBy:\nName:\nTitle:\nA ddress:	CONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of Confidentiality Agreement\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (this Agreement") is made as of the\nday of\n20_, by and between\n(the "Disclosing Party') and\n(the\n"Recipient")\nWHEREAS the Disclosing Party is a party to the Construction Completion A greement, dated\nas of\nbetween Georgia Power Company for itself and as agent for the Vogtle Owners\n(collectively "Owners") and Bechtel Power Corporation ("Bechtel") under which Bechtel will perform certain\nagreed-to services for Owners for the completion of the Vogtle 3 & 4 project ("Construction Completion\nAgreement"); and\nWHEREAS, the Disclosing Party desires to disclose to Recipient certain confidential and/or\nproprietary information which is either marked as being confidential at the time of disclosure, or of a nature\nthat the Recipient can reasonably be expected to ascertain the confidential nature of such information at the\ntime of receipt (in either case, "Confidential and Proprietary Information") of Disclosing Party, Bechtel,\nOwners, Westinghouse Electric Company, LLC "Westinghouse"), WECTEC Global Project Services Inc.\n("WECTEC"), and/or another third party, as the case may be; and\nWHEREAS, under the terms of the Construction Completion Agreement, the Disclosing Party\nand the Recipient are required to enter into this A greement as a condition to disclosure of such Confidential\nand Proprietary Information to the Recipient.\nNOW THEREFORE, for and in consideration of the premises and the mutual promises\nhereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby\nacknowledged, the parties hereto hereby agree as follows:\n1.\nRecipient shal maintain the confidentiality of all Confidential and Proprietary Information\ndisclosed to it hereunder, and shall not use such Confidential and Proprietary Information for any purpose other\nthan the purposes of construction, testing, completion and defense of ITAACs, startup, trouble-shooting,\nresponse to plant events, inspection, evaluation of system or component performance, scheduling,\ninvestigations, operation, maintenance, training, repair, licensing, modification, decommissioning and\ncompliance with laws or the requirements of governmental authorities, in each case as it relates to the Vogtle\n3&4 project (the "Purpose").\nOwners are defined as Georgia Power Company, a Georgia Corporation, Oglethorpe Power Corporation (An Electric\nMembership Corporation), an electric membership corporation formed under the laws of the State of Georgia, Municipal\nElectric Authority of Georgia, a public body corporate and politic and an instrumentality of the State of Georgia, MEAG\nPower SPVJ, LLC, MEAG Power SPVM, LLC, MEAG Power SPVP, LLC, each a Georgia limited liability company,\nand The City of Dalton, Georgia an incorporated municipality in the State of Georgia acting by and through its Board of\nWater, Light and Sinking Fund Commissioners. Southern Nuclear Operating Company, Inc. ("SNC") is the licensed\noperator of Vogtle 3 and 4 and is Owners' agent for the purposes of implementation and administration of the\nConstruction Completion Agreement.\nCONFIDENTIAL AND PROPRIETARY\nExhibit S Form of Confidentiality Agreement\n2. Recipient shall not transmit or further disclose such Confidential and Proprietary Information to\nany third party, including, without limitation, parent organizations of Recipient, sister organizations of\nRecipient, subsidiaries of Recipient, consultants of Recipient or subcontractors of Recipient, unless such third\nparty has entered into a confidentiality agreement with Disclosing Party substantially in the form of this\nA greement.\n3.\nIn the event that the Recipient or any of its representatives are requested or required in any\nproceeding or by any governmental authority to disclose any of the Confidential and Proprietary Information,\nthe Recipient shall provide the Disclosing Party with prompt written notice of such request or requirement so\nthat the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance\nwith the provisions of this greement. If, in the absence of a protective order or other remedy or the receipt of\na\nwaiver\nfrom\nthe\nDisclosing\nParty,\nthe\nRecipient\nor\nany\nof\nits\nrepresentatives\nare\nnonetheless,\nin\nthe\nwritten\nopinion of their counsel, legally compelled to disclose such information, it or its representatives may, without\nliability hereunder, disclose only that portion of the Confidential and Proprietary Information which such\ncounsel advises the Recipient is legally required to be disclosed, provided that the Recipient exercises its\nreasonable efforts to preserve the confidentiality of the Confidential and Proprietary Information, including,\nwithout limitation, by cooperating with the Disclosing Party to obtain an appropriate protective order or other\nreliable assurance that confidential treatment will be accorded the Confidential and Proprietary Information.\n4. Except where necessary in furtherance of the Purpose, Recipient shall not make any copy or in any\nway reproduce or excerpt such Confidential and Proprietary Information except as authorized by the Disclosing\nParty in writing prior to such reproduction or excerption. Any such copies or excerpts shall include all\nproprietary notices and designations. Upon the written request of the Disclosing Party, the Confidential and\nProprietary Information provided hereunder and any such copies or excerpts thereof shall be returned to the\nDisclosing Party, or, at the sole option and request of the Disclosing Party, Recipient shall destroy such\ninformation and any such copies and/or excerpts and certify in writing to the Disclosing Party that such\ninformation has in fact been destroyed (but for a single copy retained for legal archival purposes, which shall\ncontinue to be subject to the provisions of this A greement).\n5. Nothing herein shall apply to any information which is:\n(a) now generally known or readily available to the trade or public or which becomes so\nknown or readily available without fault of the Recipient; or\n(b) rightfully possessed by the Recipient without restriction prior to its disclosure hereunder\nby the Disclosing Party; or\n(c) acquired from a third party without restriction, provided that the Recipient does not know,\nor have reason to know, or is not informed subsequent to disclosure by such third\nparty and prior to disclosure by the Recipient that such information was acquired\nunder an obligation of confidentiality.\nCONFIDENTIAL AND PROPRIETARY\nExhibit S Form of Confidentiality Agreement\n6.\nIt is mutually understood that nothing herein shall be construed as granting or implying any right\nunder any letters patent, or to use any Confidential and Proprietary Information claimed therein, or as\npermitting Recipient to unfairly obtain the right to use Confidential and Proprietary Information which\nbecomes publicly known through an improper act or omission on its part.\n7.\nNeither Owners, Bechtel, Westinghouse, WECTEC, nor their affiliates make any warranty or\nrepresentation whatsoever to the Recipient as to the sufficiency or accuracy of the Confidential and Proprietary\nInformation provided hereunder, the ability of Recipient to use the Confidential and Proprietary Information\nfor its intended purpose, or as to the result to be obtained therefrom.\n8. Neither Owners, Bechtel, Westinghouse, WECTEC, nor their affiliates, suppliers, or subcontractors\nof any tier shall be liable with respect to or resulting from the use (or the results of such use) or misuse of any\nConfidential and Proprietary Information furnished hereunder.\n9. Nothing in this A greement shall obligate the Disclosing Party to provide any specific information\nthat it otherwise desires to withhold.\n10. Recipient agrees to fully comply with all laws and regulations with regard to the Confidential and\nProprietary Information transmitted hereunder.\n11. Recipient shall not, at any time file, cause or authorize the filing of any patent application in any\ncountry in respect of any invention derived from the Confidential and Proprietary Information supplied\nhereunder.\n12. Recipient shall not assign this Agreement. This A greement shall be binding upon the Recipient\nand its successors and shall benefit and be enforceable by Owners, Bechtel, Westinghouse, or WECTEC and\neach of their respective successors and assigns.\n13.\nIf any of the terms of this A greement are violated by Recipient, the Owners, Bechtel,\nWestinghouse, or WECTEC, as the case may be, shall be entitled to an injunction to be issued by any court of\ncompetent jurisdiction, enjoining and restraining the Recipient from such violation.\n14. If any provision of this A greement is held invalid in any respect, it shall not affect the validity of\nany other provision of this Agreement. If any provision of this A greement is held to be unreasonable as to the\ntime, scope or otherwise, it shall be construed by limiting and reducing it so as to be enforceable under then\napplicable law.\n15. This A greement shall be governed in accordance with the laws of the State of Georgia without\ngiving effect to any choice of law, provision, or rule (whether of Georgia or any other jurisdiction) that would\ncause the application of the laws of any jurisdiction other than Georgia.\nCONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of Confidentiality Agreement\nIN WITNESS WHEREOF, the parties have hereto set their respective signatures to this Agreement.\nDISCLOSING PARTY:\nBy:\nName:\nTitle:\nA ddress:\nRECIPIENT:\nBy:\nName:\nTitle:\nAddress:	CONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of Confidentiality Agreement\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is made as of the ___ day of _____________,\n20__, by and between ___________________ (the “Disclosing Party’) and ________________ (the\n“Recipient”).\nWHEREAS, the Disclosing Party is a party to the Construction Completion Agreement, dated\nas of ______________, between Georgia Power Company for itself and as agent for the Vogtle Owners\n(collectively “Owners”) and Bechtel Power Corporation (“Bechtel”) under which Bechtel will perform certain\nagreed-to services for Owners for the completion of the Vogtle 3 & 4 project (“Construction Completion\nAgreement”); and\nWHEREAS, the Disclosing Party desires to disclose to Recipient certain confidential and/or\nproprietary information which is either marked as being confidential at the time of disclosure, or of a nature\nthat the Recipient can reasonably be expected to ascertain the confidential nature of such information at the\ntime of receipt (in either case, “Confidential and Proprietary Information”) of Disclosing Party, Bechtel,\nOwners, Westinghouse Electric Company, LLC (“Westinghouse”), WECTEC Global Project Services Inc.\n(“WECTEC”), and/or another third party, as the case may be; and\nWHEREAS, under the terms of the Construction Completion Agreement, the Disclosing Party\nand the Recipient are required to enter into this Agreement as a condition to disclosure of such Confidential\nand Proprietary Information to the Recipient.\nNOW THEREFORE, for and in consideration of the premises and the mutual promises\nhereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby\nacknowledged, the parties hereto hereby agree as follows:\n1.\nRecipient shall maintain the confidentiality of all Confidential and Proprietary Information\ndisclosed to it hereunder, and shall not use such Confidential and Proprietary Information for any purpose other\nthan the purposes of construction, testing, completion and defense of ITAACs, startup, trouble-shooting,\nresponse to plant events, inspection, evaluation of system or component performance, scheduling,\ninvestigations, operation, maintenance, training, repair, licensing, modification, decommissioning and\ncompliance with laws or the requirements of governmental authorities, in each case as it relates to the Vogtle\n3&4 project (the “Purpose”).\n__________________________\n2 Owners are defined as Georgia Power Company, a Georgia Corporation, Oglethorpe Power Corporation (An Electric\nMembership Corporation), an electric membership corporation formed under the laws of the State of Georgia, Municipal\nElectric Authority of Georgia, a public body corporate and politic and an instrumentality of the State of Georgia, MEAG\nPower SPVJ, LLC, MEAG Power SPVM, LLC, MEAG Power SPVP, LLC, each a Georgia limited liability company,\nand The City of Dalton, Georgia, an incorporated municipality in the State of Georgia acting by and through its Board of\nWater, Light and Sinking Fund Commissioners. Southern Nuclear Operating Company, Inc. (“SNC”) is the licensed\noperator of Vogtle 3 and 4 and is Owners’ agent for the purposes of implementation and administration of the\nConstruction Completion Agreement.\nCONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of Confidentiality Agreement\n2. Recipient shall not transmit or further disclose such Confidential and Proprietary Information to\nany third party, including, without limitation, parent organizations of Recipient, sister organizations of\nRecipient, subsidiaries of Recipient, consultants of Recipient or subcontractors of Recipient, unless such third\nparty has entered into a confidentiality agreement with Disclosing Party substantially in the form of this\nAgreement.\n3. In the event that the Recipient or any of its representatives are requested or required in any\nproceeding or by any governmental authority to disclose any of the Confidential and Proprietary Information,\nthe Recipient shall provide the Disclosing Party with prompt written notice of such request or requirement so\nthat the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance\nwith the provisions of this Agreement. If, in the absence of a protective order or other remedy or the receipt of\na waiver from the Disclosing Party, the Recipient or any of its representatives are nonetheless, in the written\nopinion of their counsel, legally compelled to disclose such information, it or its representatives may, without\nliability hereunder, disclose only that portion of the Confidential and Proprietary Information which such\ncounsel advises the Recipient is legally required to be disclosed, provided that the Recipient exercises its\nreasonable efforts to preserve the confidentiality of the Confidential and Proprietary Information, including,\nwithout limitation, by cooperating with the Disclosing Party to obtain an appropriate protective order or other\nreliable assurance that confidential treatment will be accorded the Confidential and Proprietary Information.\n4. Except where necessary in furtherance of the Purpose, Recipient shall not make any copy or in any\nway reproduce or excerpt such Confidential and Proprietary Information except as authorized by the Disclosing\nParty in writing prior to such reproduction or excerption. Any such copies or excerpts shall include all\nproprietary notices and designations. Upon the written request of the Disclosing Party, the Confidential and\nProprietary Information provided hereunder and any such copies or excerpts thereof shall be returned to the\nDisclosing Party, or, at the sole option and request of the Disclosing Party, Recipient shall destroy such\ninformation and any such copies and/or excerpts and certify in writing to the Disclosing Party that such\ninformation has in fact been destroyed (but for a single copy retained for legal archival purposes, which shall\ncontinue to be subject to the provisions of this Agreement).\n5. Nothing herein shall apply to any information which is:\n(a) now generally known or readily available to the trade or public or which becomes so\nknown or readily available without fault of the Recipient; or\n(b) rightfully possessed by the Recipient without restriction prior to its disclosure hereunder\nby the Disclosing Party; or\n(c) acquired from a third party without restriction, provided that the Recipient does not know,\nor have reason to know, or is not informed subsequent to disclosure by such third\nparty and prior to disclosure by the Recipient that such information was acquired\nunder an obligation of confidentiality.\nCONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of Confidentiality Agreement\n6. It is mutually understood that nothing herein shall be construed as granting or implying any right\nunder any letters patent, or to use any Confidential and Proprietary Information claimed therein, or as\npermitting Recipient to unfairly obtain the right to use Confidential and Proprietary Information which\nbecomes publicly known through an improper act or omission on its part.\n7. Neither Owners, Bechtel, Westinghouse, WECTEC, nor their affiliates make any warranty or\nrepresentation whatsoever to the Recipient as to the sufficiency or accuracy of the Confidential and Proprietary\nInformation provided hereunder, the ability of Recipient to use the Confidential and Proprietary Information\nfor its intended purpose, or as to the result to be obtained therefrom.\n8. Neither Owners, Bechtel, Westinghouse, WECTEC, nor their affiliates, suppliers, or subcontractors\nof any tier shall be liable with respect to or resulting from the use (or the results of such use) or misuse of any\nConfidential and Proprietary Information furnished hereunder.\n9. Nothing in this Agreement shall obligate the Disclosing Party to provide any specific information\nthat it otherwise desires to withhold.\n10. Recipient agrees to fully comply with all laws and regulations with regard to the Confidential and\nProprietary Information transmitted hereunder.\n11. Recipient shall not, at any time file, cause or authorize the filing of any patent application in any\ncountry in respect of any invention derived from the Confidential and Proprietary Information supplied\nhereunder.\n12. Recipient shall not assign this Agreement. This Agreement shall be binding upon the Recipient\nand its successors and shall benefit and be enforceable by Owners, Bechtel, Westinghouse, or WECTEC and\neach of their respective successors and assigns.\n13.\nIf any of the terms of this Agreement are violated by Recipient, the Owners, Bechtel,\nWestinghouse, or WECTEC, as the case may be, shall be entitled to an injunction to be issued by any court of\ncompetent jurisdiction, enjoining and restraining the Recipient from such violation.\n14. If any provision of this Agreement is held invalid in any respect, it shall not affect the validity of\nany other provision of this Agreement. If any provision of this Agreement is held to be unreasonable as to the\ntime, scope or otherwise, it shall be construed by limiting and reducing it so as to be enforceable under then\napplicable law.\n15. This Agreement shall be governed in accordance with the laws of the State of Georgia without\ngiving effect to any choice of law, provision, or rule (whether of Georgia or any other jurisdiction) that would\ncause the application of the laws of any jurisdiction other than Georgia.\nCONFIDENTIAL AND PROPRIETARY\nExhibit S - Form of Confidentiality Agreement\nIN WITNESS WHEREOF, the parties have hereto set their respective signatures to this Agreement.\nDISCLOSING PARTY:\nBy:\nName:\nTitle:\nAddress:\nRECIPIENT:\nBy:\nName:\nTitle:\nAddress:
+da530a36ab5feb39180e93a73618facd.pdf	jurisdiction party	EXHIBIT B\nCONFIDENTIALITY AGREEMENT\nThis CONFIDENTIALITY AGREEMENT (this “Agreement”), effective as of the date set forth last below, is made by and between the undersigned counter party (“Recipient”) and Aegerion Pharmaceuticals, Inc. ( “Aegerion”). In\nconsideration of the mutual agreements and other provisions of this Agreement, the parties hereto agree as follows:\n1. Scope of Confidential Information.\n1.1 “Confidential Information” means, subject to the exceptions set forth in Section 1.2, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by or on behalf of\nAegerion to Recipient before or during the term of this Agreement. “Confidential Information” includes but is not limited to: (a) patent and patent applications; (b) trade secrets; (c) third party information; and (d) ideas, gene sequences,\ncell lines, samples, chemical compounds, clinical data, clinical trial design, assays, biological materials, techniques, sketches, drawings, works of authorship, models, inventions, know-how and processes pertaining to the current, future\nand proposed business, products and services of Aegerion.\n1.2 “Confidential Information” shall not include any information that: (a) appears in issued patents or printed publications in integrated form or which otherwise is or becomes generally known in the trade other than through Recipient’s\nfailure to observe any or all terms and conditions hereof; provided that the foregoing shall not be interpreted to create any express or implied license, or the right to obtain a license, to any patents which may be issued to Aegerion; (b) is\nmade available to Recipient by a third party who is lawfully in possession of such information, and who is not in violation of any confidentiality obligation in favor of Aegerion; or (c) Recipient can show by written record was in available\nto or in possession of Recipient (free of any confidentiality obligation in favor of Aegerion known to Recipient at the time of disclosure or availability) prior to disclosure of such information by Aegerion to Recipient, provided that\nCounter must promptly notify Aegerion of any prior knowledge in the manner provided in Section 2.4 below. Notwithstanding the foregoing, (i) technical information disclosed under this Agreement shall not be deemed to be within the\nforegoing exceptions merely because such information is embraced by more general information in the public domain or in Recipient’s possession, and (ii) any combination of features shall not be deemed to be within the foregoing\nexceptions merely because individual features are in the public domain or in Recipient’s possession, but only if the combination itself and its principle of operation are in the public domain or in Recipient’s possession.\n2. Use and Disclosure of Confidential Information.\n2.1 Recipient shall only use the Confidential Information internally solely for the purpose of evaluating a potential business relationship between Recipient and Aegerion (the “Permitted Purpose”). Recipient must keep secret and shall\nnever, without the prior written consent of Aegerion, directly or indirectly, disclose, publish, divulge, furnish or make accessible to anyone all or any portion of the Confidential Information, other than furnishing such Confidential\nInformation to (a) Recipient’s employees and consultants who are required to have access to such Confidential Information in connection with the Permitted Purpose, and (b) Recipient’s professional, licensed advisers (i.e., lawyers and\naccountants), in each case, during the time that Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees, consultants are bound by written agreements or, in the case of\nprofessional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement.\n2.2 Recipient shall use at least reasonable care and adequate measures to protect the confidentiality of the Confidential Information of Aegerion and to ensure that any Confidential Information of Aegerion is not disclosed or otherwise\nmade available to other persons or used in violation of this Agreement. Without limiting any of the foregoing, such measures shall be at least the equivalent of measures which Recipient uses to protect Recipient’s own most valuable\nproprietary information.\n2.3 In the event that Recipient is required by law to make any disclosure of any of the Confidential Information of Aegerion, by subpoena, judicial or administrative order or otherwise, Recipient shall first give written notice of such\nrequirement to Aegerion, and shall permit Aegerion to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to Aegerion in seeking to obtain such\nprotection.\n2.4 Recipient agrees to notify Aegerion promptly in writing if (a) Recipient becomes aware of any breach of this Agreement with respect to the Confidential Information of Aegerion in Recipient’s possession; (b) subsequent to disclosure\nof any\nB-1\nCONFIDENTIALITY AGREEMENT\nConfidential Information by Aegerion, information is disclosed to Recipient in the manner described in Section 1.2; or (c) upon disclosure of Confidential Information by Aegerion, Recipient has prior knowledge of the same.\n2.5 Recipient shall not embody any of the Confidential Information of Aegerion in any of Recipient’s products, processes or services, or duplicate or exploit any of such Confidential Information in Recipient’s business, or otherwise use\nany of the Confidential Information for any purpose other than for the Permitted Purpose.\n3. Certain Rights and Limitations.\n3.1 All Confidential Information shall remain the property of Aegerion. The provision of Confidential Information hereunder shall not transfer any right, title or interest in such information to Recipient. Aegerion does not grant Recipient\nany express or implied right to or under Aegerion’s or another party’s patents, copyrights, trademarks, trade secret information or other proprietary rights.\n3.2 Recipient shall not remove, overprint or deface any notice of confidentiality, copyright, trademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of Confidential Information it obtains from\nAegerion.\n3.3 This Agreement imposes no obligations on either party to exchange any Confidential Information or to purchase, sell, license, transfer or otherwise transact in any technology, services or products.\n3.4 Confidential Information disclosed by the parties under this Agreement may be subject to export controls under the laws of the United States. Each party shall comply with such laws and agrees not to knowingly export, re-export or\ntransfer Confidential Information of the other party without first obtaining all required United States authorizations or licenses.\n3.5 All tangible embodiments of the Confidential Information of Aegerion (e.g., drawings, memoranda and notes) and all copies thereof, whether in hard-copy or machine-readable form and whether supplied by Aegerion or made by or for\nRecipient (collectively, the “Tangible Embodiments”), shall at all times be and remain the exclusive property of Aegerion.\n3.6 Recipient shall provide upon Aegerion’s request a certification that access and use is being controlled in accordance with this Agreement. Aegerion shall have the right to audit to verify compliance with this Agreement.\n4. Remedies. Recipient acknowledges that a breach by it of any of the terms of this Agreement would cause irreparable harm to Aegerion for which Aegerion could not be adequately compensated by money damages. Accordingly,\nRecipient agrees that, in addition to all other remedies available to Aegerion in an action at law, in the event of any breach or threatened breach by Recipient of the terms of this Agreement, Aegerion shall, without the necessity of proving\nactual damages or posting any bond or other security, be entitled to temporary and permanent injunctive relief, including, but not limited to, specific performance of the terms of this Agreement.\n5. Termination.\n5.1 This Agreement shall remain in effect until it is terminated by either party with thirty (30) days prior written notice. The terms and conditions of this Agreement shall survive any such termination with respect to Confidential\nInformation that is disclosed prior to the effective date of termination.\n5.2 Upon the earlier of (a) the termination of this Agreement, (b) Aegerion’s written request or (c) such time as Recipient no longer requires the Confidential Information for the Permitted Purpose, Recipient agrees to promptly return to\nAegerion or destroy all Confidential Information and any Tangible Embodiments that are in the possession of Recipient and to certify the return or destruction of all such Confidential Information and embodiments.\n6. Warranty. NO WARRANTY IS MADE BY EITHER PARTY UNDER THIS AGREEMENT. ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED “AS IS. ”\n7. Miscellaneous. This Agreement does not create any agency or partnership relationship between the parties hereto. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey governing\nsuch agreements, without regard to conflicts-of-law principles. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate federal or state court located in the State of New Jersey,\nand the parties agree not to raise, and waive, any objections or defenses based upon venue or forum non conveniens. This Agreement contains the complete and exclusive agreement of the parties with respect to the subject matter hereof\nand supersedes all prior agreements and understandings whether written or oral, express or implied. Except where expressly indicated otherwise, the words “written” or “in writing” shall include, but not be limited to, written or printed\ndocuments, in any format now know or later developed including electronic and facsimile transmissions and computer disks or tapes\nB-2\nCONFIDENTIALITY AGREEMENT\n(whether machine or user readable). If any provision of this Agreement is held invalid, illegal or unenforceable by a court of competent jurisdiction, such shall not affect any other provision of this Agreement, which shall remain in full\nforce and effect. No amendment or alteration of the terms of this Agreement shall be effective unless made in writing and executed by both parties hereto. A failure or delay in exercising any right in respect to this Agreement shall not be\npresumed to operate as a waiver, and a single or partial exercise of any right shall not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right. Any modification or waiver of any provision\nof this Agreement shall not be effective unless made in writing. Any such waiver shall be effective only in the specific instance and for the purpose given.\nIN WITNESS WHEREOF, the parties have caused this Confidentiality Agreement to be executed below by their duly authorized signatories.\nAEGERION PHARMACEUTICALS, INC .\nBy:\nBy:\nName:\nName:\nTitle:\nTitle:\nDate:\nDate:\nAddress for notices to Recipient:\nAddress for notices to Aegerion:\nB-3	EXHIBIT B\nCONFIDENTIALITY AGREEMENT\nThis CONFID ENTIA LITY AG REEMENT (this "A greement" ), effective as of the date set forth last below, is made by and between the undersigned counter party (”Recipient") and Aegerion Pharmaceuticals, Inc. (”A egerion" ). In\nconsideration of the mutual agreements and other provisions of this Agreement, the parties hereto agree as follows:\n1. Scope of Confidential Information.\n1.1 "Confidential Information" means, subject to the exceptions set forth in Section 1.2, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by or on behalf of\nAegerion to Recipient before or during the term of this Agreement. ”Confidential Information" includes but is not limited to: (a) patent and patent applications; (b) trade secrets; (c) third party information,- and (d) ideas, gene sequences,\ncell lines, samples, chemical compounds, clinical dam, clinical trial design, assays, biological materials, techniques, sketches, drawings, works of authorship, models, inventions, know-how and processes pertaining to the current, future\nand proposed business, products and services of Aegerion.\n1.2 "Confidential Information" shall not include any information that: (a) appears in issued patents or printed publications in integrated form or which otherwise is or becomes generally known in the trade other than through Recipient’s\nfailure to observe any or all terms and conditions hereof; wded that the foregoing shall not be interpreted to create any express or implied license, or the right to obtain a license, to any patents which may be issued to Aegerion; (b) is\nmade available to Recipient by a third party who is lawfully in possession of such information, and who is not in violation of any confidentiality obligation in favor of Aegerion,- or (c) Recipient can show by written record was in available\nto or in possession of Recipient (free of any confidentiality obligation in favor of Aegerion known to Recipient at the time of disclosure or availability) priorto disclosure of such information by Aegerion to Recipient, provided that\nCounter must promptly notify Aegerion of any prior knowledge in the manner provided in Section 2.4 below. Notwithsmnding the foregoing, (i) technical information disclosed under this Agreement shall not be deemed to be within the\nforegoing exceptions merely because such information is embraced by more general information in the public domain or in Recipient’s possession, and (ii) any combination of features shall not be deemed to be within the foregoing\nexceptions merely because individual features are in the public domain or in Recipient’s possession, but only if the combination itself and its principle of operation are in the public domain or in Recipient's possession.\n2. Use and Disclosure of Confidential Information.\n2.1 Recipient shall only use the Confidential Information internally solely for the purpose of evaluating a potential business relationship between Recipient and Aegerion (the "Permitted Purpose"). Recipient must keep secret and shall\nnever, without the prior written consent of Aegerion, directly or indirectly, disclose, publish, divulge, fumish or make accessible to anyone all or any portion of the Confidential Information, other than furnishing such Confidential\nInformation to (a) Recipient's employees and consultants who are required to have access to such Confidential Information in connection with the Permitted Purpose, and (b) Recipient' s professional, licensed advisers (i.e., lawyers and\naccountants), in each case, during the time that Recipient is permitted to retain such Confidential Information hereunder: provided that any and all such employees, consiilmnts are bound by written agreements or, in the case of\nprofessional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement.\n2.2 Recipient shall use at least reasonable care and adequate measures to protect the confidentiality of the Confidential Information of Aegerion and to ensure that any Confidential Information of Aegerion is not disclosed or otherwise\nmade available to other persons or used in violation of this Agreement Without limiting any of the foregoing, such measures shall be at least the equivalent of measures which Recipient uses to protect Recipient's own most valuable\nproprietary information.\n2.3 In the event that Recipient is required by law to make any disclosure of any of the Confidential Information of Aegerion, by subpoena, judicial or administrative order or otherwise, Recipient shall first give written notice of such\nrequirement to Aegerion, and shall permit Aegerion to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to Aegerion in seeking to obtain such\nprotection.\n2.4 Recipient agrees to notify Aegerion promptly in writing if (a) Recipient becomes aware of any breach of this Agreement with respect to the Confidential Information of Aegerion in Recipient's possession; (b) subsequent to disclosure\nof any\nB-l\nCONFIDENTIALITY AGREEMENT\nConfidential Information by Aegerion, information is disclosed to Recipient in the manner described in Section 1.2,- or (c) upon disclosure of Confidential Information by Aegerion, Recipient has prior knowledge of the same.\n2.5 Recipient shall not embody any of the Confidential Information of Aegerion in any of Recipient’s products, processes or services, or duplicate or exploit any of such Confidential Information in Recipient’s business, or otherwise use\nany of the Confidential Information for any purpose other than for the Permitted Purpose.\n3. Cermin Rights and Limitations.\n3.1 All Confidential Information shall remain the property of Aegerion. The provision of Confidential Information hereunder shall not transfer any right, title or interest in such information to Recipient. Aegerion does not grant Recipient\nany express or implied right to or under Aegerion’s or another party's patents, copyrights, trademarks, trade secret information or other proprietary rights.\n3.2 Recipient shall not remove, overprint or deface any notice of confidentiality, copyright, trademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of Confidential Information it obtains from\nA egerion.\n3.3 This Agreement imposes no obligations on either party to exchange any Confidential Information orto purchase, sell, license, transfer or otherwise transact in any technology, services or products.\n3.4 Confidential Information disclosed by the parties under this Agreement may be subject to export controls under the laws of the United Smtes. Each party shall comply with such laws and agrees not to knowingly export, re-export or\ntransfer Confidential Information of the other party without first obtaining all required United States authorizations or licenses.\n3.5 All tangible embodiments of the Confidential Information of Aegerion (e.g., drawings, memoranda and notes) and all copies thereof, whether in hard-copy or machine-readable form and whether supplied by Aegerion or made by or for\nRecipient (collectively, the "Tangible Embodiments"), shall at all times be and remain the exclusive property of Aegerion.\n3.6 Recipient shall provide upon Aegerion's request a certification that access and use is being controlled in accordance with this Agreement. Aegerion shall have the right to audit to verify compliance with this Agreement\n4. Remedies. Recipient acknowledges that a breach by it of any of the terms of this Agreement would cause irreparable harm to Aegerion for which Aegerion could not be adequately compensated by money damages. Accordingly,\nRecipient agrees that, in addition to all other remedies available to Aegerion in an action at law, in the event of any breach or threatened breach by Recipient of the terms of this Agreement, Aegerion shall, without the necessity of proving\nactual damages or posting any bond or other security, be entitled to temporary and permanent injunctive relief, including, but not limited to, specific performance of the terms of this Agreement.\n5. Termination.\n5.1 This Agreement shall remain in effect until it is terminated by either party with thirty (30) days prior written notice. The terms and conditions of this Agreement shall survive any such termination with respect to Confidential\nInformation that is disclosed priorto the effective date of termination.\n5.2 Upon the eariier of (a) the termination of this Agreement, (b) Aegerion's written request or (c) such time as Recipient no longer requires the Confidential Information for the Permitted Purpose, Recipient agrees to promptly return to\nAegerion or destroy all Confidential Information and any Tangible Embodiments that are in the possession of Recipient and to certify the return or destruction of all such Confidential Information and embodiments.\n6. Warrantl. NO WARRANTY IS MADE BY EITHER PARTY UNDER THIS AGREEMENT. ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED "AS IS."\n7. Miscellaneous. This Agreement does not create any agency or partnership relationship between the parties hereto. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey governing\nsuch agreements, without regard to conflicts-of-law principles. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate federal or state court located in the State of New Jersey,\nand the parties agree not to raise, and waive, any objections or defenses based upon venue or forum non conveniens. This Agreement conmins the complete and exclusive agreement of the parties with respect to the subject matter hereof\nand supersedes all prior agreements and understandings whether written or oral, express or implied. Except where expressly indicated otherwise, the words "written" or "in writing" shall include, but not be limited to, written or printed\ndocuments, in any format now know orlater developed including electronic and facsimile transmissions and computer disks or tapes\nB-2\nCONFIDENTIALITY AGREEMENT\n(whether machine or user readable). If any provision of this Agreement is held invalid, illegal or unenforceable by a (:0th of competent jurisdiction, such shall not affect any other provision of this Agreement, which shall remain in full\nforce and effect No amendment or alteration of the terms of this Agreement shall be effective unless made in writing and executed by both panies hereto A failure or delay in exercising any right in respect to this Agreement shall not be\npresumed to operate as a waiver, and a single or panial exercise of any right shall not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right: Any modification or waiver of any provision\nof this Agreement shall not be effective unless made in writing. Any such waiver shall be effective only in the specific instance and for the purpose given\nIN WITNESS WHEREOF, the panies have caused this Confidentiality AgIeement to be executed below by their duly authorized signatories\nAEGERION PHARMACEUTICALS, INC:\nBy: By:\nName: Name:\nTitle: Title:\nDate: Date:\nAddress for notices to Recipient: Addiess for notices to Aegerion:\nB-3	EXHIBIT B\nCONFIDENTIALITY AGREEMENT\nThis CONFIDENTIALITY AGREEMENT (this greement") effective as of the date set forth last below, is made by and between the undersigned counter party ("Recipient") and Aegerion Pharmaceuticals, Inc. Aegerion"). In\nconsideration of the mutual agreements and other provisions of this Agreement, the parties hereto agree as follows:\n1. Scope of Confidential Information.\n1.1 "Confidential Information" means, subject to the exceptions set forth in Section 1.2, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by or on behalf of\negerion to Recipient before or during the term of this Agreement. "Confidential Information" includes but is not limited to: (a) patent and patent applications; (b) trade secrets; (c) third party information; and (d) ideas, gene sequences,\ncell lines, samples, chemical compounds, clinical data, clinical trial design assays, biological materials, techniques sketches, drawings, works of authorship, models inventions, know-how and processes pertaining to the current, future\nand proposed business, products and services of Aegerion.\n1.2 "Confidential Information" shall not include any information that: (a) appears in issued patents or printed publications in integrated form or which otherwise is or becomes generally known in the trade other than through Recipient's\nfailure to observe any or all terms and conditions hereof; provided that the foregoing shall not be interpreted to create any express or implied license, or the right to obtain a license, to any patents which may be issued to A egerion; (b) is\nmade available to Recipient by a third party who is lawfully in possession of such information, and who is not in violation of any confidentiality obligation in favor of Aegerion; or (c) Recipient can show by written record was in available\nto or in possession of Recipient (free of any confidentiality obligation in favor of Aegerion known to Recipient at the time of disclosure or availability) prior to disclosure of such information by Aegerion to Recipient, provided that\nCounter must promptly notify Aegerion of any prior knowledge in the manner provided in Section 2.4 below Notwithstanding the foregoing, (i) technica information disclosed under this greement shall not be deemed to be within\nthe\nforegoing exceptions merely because such information is embraced by more general information in the public domain or in Recipient's possession, and (ii) any combination of features shall not be deemed to be within the foregoing\nexceptions merely because individual features are in the public domain or in Recipient's possession, but only if the combination itself and its principle of operation are in the public domain or in Recipient's possession\n2. Use and Disclosure of Confidential Information.\n2.1 Recipient shall only use the Confidential Information internally solely for the purpose of evaluating a potential business relationship between Recipient and egerion (the "Permitted Purpose"). Recipient must keep secret and shall\nnever, without the prior written consent of Aegerion, directly or indirectly, disclose, publish, divulge, fumish or make accessible to anyone all or any portion of the Confidential Information, other than furnishing such Confidential\nInformation to (a) Recipient's employees and consultants who are required to have access to such Confidential Information in connection with the Permitted Purpose, and (b) Recipient's professional, licensed advisers (i.e., lawyers and\naccountants), in each case, during the time that Recipient is permitted to retain such Confidential Information hereunder provided that any and all such employees, consultants are bound by written agreements or, in the case\nof\nprofessional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this A greement.\n2.2 Recipient shall use at least reasonable care and adequate measures to protect the confidentiality of the Confidential Information of Aegerion and to ensure that any Confidential Information of A Aegerion is not disclosed or otherwise\nmade available to other persons or used in violation of this Agreement. ithout limiting any of the foregoing, such measures shall be at least the equivalent of measures which Recipient uses to protect Recipient's own most valuable\nproprietary information\n2.3 In the event that Recipient is required by law to make any disclosure of any of the Confidential Information of Aegerion, by subpoena judicial or administrative order or otherwise, Recipient shall first give written notice of such\nrequirement to Aegerion, and shall permit Aegerion to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to Aegerion in seeking to obtain such\nprotection.\n2.4 Recipient agrees to notify Aegerion promptly in writing if (a) Recipient becomes aware of any breach of this Agreement with respect to the Confidential Information of Aegerion in Recipient's possession (b) subsequent to disclosure\nof any\nB-1\nCONFIDENTIALITY AGREEMENT\nConfidential Information by Aegerion, information is disclosed to Recipient in the manner described in Section 1.2; or (c) upon disclosure of Confidential Information by Aegerion, Recipient has prior knowledge of the same.\n2.5 Recipien shall not embody any of the Confidential Information of Aegerion in any of Recipient's products, processes or services, or duplicate or exploi any of such Confidential Information in Recipient's business, or otherwise use\nany of the Confidential Information for any purpose other than for the Permitted Purpose.\n3. Certain Rights and Limitations.\n3.1 All Confidential Information shall remain the property of Aegerion. The provision of Confidential Information hereunder shall not transfer any right title or interest in such information to Recipient. Aegerion does not grant Recipient\nany express or implied right to or under Aegerion's or another party's patents, copyrights, trademarks, trade secret information or other proprietary rights\n3.2 Recipient shall not remove, overprint or deface any notice of confidentiality, copyright, trademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of Confidential Information it obtains from\nAegerion\n3.3 This Agreement imposes no obligations on either party to exchange any Confidential Information or to purchase, sell, license, transfer or otherwise transact in any technology, services or products.\n3.4 Confidential Information disclosed by the parties under this Agreement may be subject to export controls under the laws of the United States. Each party shall comply with such laws and agrees not to knowingly export re-export or\ntransfer Confidential Information of the other party without first obtaining all required United States authorizations or licenses.\n3.5 All tangible embodiments of the Confidential Information of Aegerion (e.g. drawings, memoranda and notes) and all copies thereof, whether in hard-copy or machine-readable form and whether supplied by egerion or made by or for\nRecipient (collectively, the "Tangible Embodiments"), shall at all times be and remain the exclusive property of Aegerion.\n3.6 Recipien shal provide upon Aegerion's request a certification that access and use is being controlled in accordance with this Agreement. Aegerion shall have the right to audit to verify compliance with this Agreement.\n4. Remedies Recipient acknowledges that a breach by it of any of the terms of this A greement would cause irreparable harm to Aegerion for which A egerion could not be adequately compensated by money damages. Accordingly,\nRecipient agrees that, in addition to all other remedies available to Aegerion in an action at law, in the event of any breach or threatened breach by Recipient of the terms of this Agreement, Aegerion shall, without the necessity of proving\nactual damages or posting any bond or other security, be entitled to temporary and permanent injunctive relief, including but not limited to, specific performance of the terms of this Agreement.\n5. Termination\n5.1 This Agreement shall remain in effect until it is terminated by either party with thirty (30) days prior written notice. The terms and conditions of this Agreement shall survive any such termination with respect to Confidential\nInformation that is disclosed prior to the effective date of termination.\n5.2 Upon the earlier of (a) the termination of this Agreement, (b) egerion's written request or (c) such time as Recipient no longer requires the Confidential Information for the Permitted Purpose, Recipient agrees to promptly retum to\nA egerion or destroy all Confidential Information and any Tangible Embodiments that are in the possession of Recipient and to certify the return or destruction of all such Confidential Information and embodiments\n6. Warranty. NO WARRANTY IS MADE BY EITHER PARTY UNDER THIS AGREEMENT. ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED "AS IS."\n7. Miscellaneous This Agreement does not create any agency or partnership relationship between the parties hereto. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey goveming\nsuch agreements, without regard to conflicts-o law principles. The sole and exclusive jurisdiction and venue for any litigation arising out of this A greement shall be an appropriate federal or state court located in the State of New Jersey,\nand the parties agree not to raise, and waive, any objections or defenses based upon venue or forum non conveniens. This Agreement contains the complete and exclusive agreement of the parties with respect to the subject matter hereof\nand supersedes all prior agreements and understandings whether written or oral, express or implied. Except where expressly indicated otherwise, the words "written" or "in writing" shall include, but not be limited to, written or printed\ndocuments, in any format now know or later developed including electronic and facsimile transmissions and computer disks or tapes\nB-2\nCONFIDENTIALITY AGREEMENT\n(whether machine or user readable). If any provision of this Agreement is held invalid, illegal or unenforceable by a court of competent jurisdiction, such shall not affect any other provision of this Agreement which shall remain in full\nforce and effect. No amendment or alteration of the terms of this Agreement shall be effective unless made in writing and executed by both parties hereto. A failure or delay in exercising any right in respect to this Agreement shall not be\npresumed to operate as a waiver, and a single or partial exercise of any right shall not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right Any modification or waiver of any provision\nof this Agreement shall not be effective unless made in writing Any such waiver shall be effective only in the specific instance and for the purpose given.\nIN WITNESS WHEREOF, the parties have caused this Confidentiality Agreement to be executed below by their duly authorized signatories.\nAEGERION PHA IARMACEUTICALS, INC.\nBy\nBy:\nName:\nName:\nTitle:\nTitle:\nDate:\nDate:\nAddress for notices to Recipient:\nAddress for notices to Aegerion\nB-3	EXHIBIT B\nCONFIDENTIALITY AGREEMENT\nThis CONFIDENTIALITY AGREEMENT (this “Agreement”), effective as of the date set forth last below, is made by and between the undersigned counter party (“Recipient”) and Aegerion Pharmaceuticals, Inc. ( “Aegerion”). In\nconsideration of the mutual agreements and other provisions of this Agreement, the parties hereto agree as follows:\n1. Scope of Confidential Information.\n1.1 “Confidential Information” means, subject to the exceptions set forth in Section 1.2, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by or on behalf of\nAegerion to Recipient before or during the term of this Agreement. “Confidential Information” includes but is not limited to: (a) patent and patent applications; (b) trade secrets; (c) third party information; and (d) ideas, gene sequences,\ncell lines, samples, chemical compounds, clinical data, clinical trial design, assays, biological materials, techniques, sketches, drawings, works of authorship, models, inventions, know-how and processes pertaining to the current, future\nand proposed business, products and services of Aegerion.\n1.2 “Confidential Information” shall not include any information that: (a) appears in issued patents or printed publications in integrated form or which otherwise is or becomes generally known in the trade other than through Recipient’s\nfailure to observe any or all terms and conditions hereof; provided that the foregoing shall not be interpreted to create any express or implied license, or the right to obtain a license, to any patents which may be issued to Aegerion; (b) is\nmade available to Recipient by a third party who is lawfully in possession of such information, and who is not in violation of any confidentiality obligation in favor of Aegerion; or (c) Recipient can show by written record was in available\nto or in possession of Recipient (free of any confidentiality obligation in favor of Aegerion known to Recipient at the time of disclosure or availability) prior to disclosure of such information by Aegerion to Recipient, provided that\nCounter must promptly notify Aegerion of any prior knowledge in the manner provided in Section 2.4 below. Notwithstanding the foregoing, (i) technical information disclosed under this Agreement shall not be deemed to be within the\nforegoing exceptions merely because such information is embraced by more general information in the public domain or in Recipient’s possession, and (ii) any combination of features shall not be deemed to be within the foregoing\nexceptions merely because individual features are in the public domain or in Recipient’s possession, but only if the combination itself and its principle of operation are in the public domain or in Recipient’s possession.\n2. Use and Disclosure of Confidential Information.\n2.1 Recipient shall only use the Confidential Information internally solely for the purpose of evaluating a potential business relationship between Recipient and Aegerion (the “Permitted Purpose”). Recipient must keep secret and shall\nnever, without the prior written consent of Aegerion, directly or indirectly, disclose, publish, divulge, furnish or make accessible to anyone all or any portion of the Confidential Information, other than furnishing such Confidential\nInformation to (a) Recipient’s employees and consultants who are required to have access to such Confidential Information in connection with the Permitted Purpose, and (b) Recipient’s professional, licensed advisers (i.e., lawyers and\naccountants), in each case, during the time that Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees, consultants are bound by written agreements or, in the case of\nprofessional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement.\n2.2 Recipient shall use at least reasonable care and adequate measures to protect the confidentiality of the Confidential Information of Aegerion and to ensure that any Confidential Information of Aegerion is not disclosed or otherwise\nmade available to other persons or used in violation of this Agreement. Without limiting any of the foregoing, such measures shall be at least the equivalent of measures which Recipient uses to protect Recipient’s own most valuable\nproprietary information.\n2.3 In the event that Recipient is required by law to make any disclosure of any of the Confidential Information of Aegerion, by subpoena, judicial or administrative order or otherwise, Recipient shall first give written notice of such\nrequirement to Aegerion, and shall permit Aegerion to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to Aegerion in seeking to obtain such\nprotection.\n2.4 Recipient agrees to notify Aegerion promptly in writing if (a) Recipient becomes aware of any breach of this Agreement with respect to the Confidential Information of Aegerion in Recipient’s possession; (b) subsequent to disclosure\nof any\nB-1\nCONFIDENTIALITY AGREEMENT\nConfidential Information by Aegerion, information is disclosed to Recipient in the manner described in Section 1.2; or (c) upon disclosure of Confidential Information by Aegerion, Recipient has prior knowledge of the same.\n2.5 Recipient shall not embody any of the Confidential Information of Aegerion in any of Recipient’s products, processes or services, or duplicate or exploit any of such Confidential Information in Recipient’s business, or otherwise use\nany of the Confidential Information for any purpose other than for the Permitted Purpose.\n3. Certain Rights and Limitations.\n3.1 All Confidential Information shall remain the property of Aegerion. The provision of Confidential Information hereunder shall not transfer any right, title or interest in such information to Recipient. Aegerion does not grant Recipient\nany express or implied right to or under Aegerion’s or another party’s patents, copyrights, trademarks, trade secret information or other proprietary rights.\n3.2 Recipient shall not remove, overprint or deface any notice of confidentiality, copyright, trademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of Confidential Information it obtains from\nAegerion.\n3.3 This Agreement imposes no obligations on either party to exchange any Confidential Information or to purchase, sell, license, transfer or otherwise transact in any technology, services or products.\n3.4 Confidential Information disclosed by the parties under this Agreement may be subject to export controls under the laws of the United States. Each party shall comply with such laws and agrees not to knowingly export, re-export or\ntransfer Confidential Information of the other party without first obtaining all required United States authorizations or licenses.\n3.5 All tangible embodiments of the Confidential Information of Aegerion (e.g., drawings, memoranda and notes) and all copies thereof, whether in hard-copy or machine-readable form and whether supplied by Aegerion or made by or for\nRecipient (collectively, the “Tangible Embodiments”), shall at all times be and remain the exclusive property of Aegerion.\n3.6 Recipient shall provide upon Aegerion’s request a certification that access and use is being controlled in accordance with this Agreement. Aegerion shall have the right to audit to verify compliance with this Agreement.\n4. Remedies. Recipient acknowledges that a breach by it of any of the terms of this Agreement would cause irreparable harm to Aegerion for which Aegerion could not be adequately compensated by money damages. Accordingly,\nRecipient agrees that, in addition to all other remedies available to Aegerion in an action at law, in the event of any breach or threatened breach by Recipient of the terms of this Agreement, Aegerion shall, without the necessity of proving\nactual damages or posting any bond or other security, be entitled to temporary and permanent injunctive relief, including, but not limited to, specific performance of the terms of this Agreement.\n5. Termination.\n5.1 This Agreement shall remain in effect until it is terminated by either party with thirty (30) days prior written notice. The terms and conditions of this Agreement shall survive any such termination with respect to Confidential\nInformation that is disclosed prior to the effective date of termination.\n5.2 Upon the earlier of (a) the termination of this Agreement, (b) Aegerion’s written request or (c) such time as Recipient no longer requires the Confidential Information for the Permitted Purpose, Recipient agrees to promptly return to\nAegerion or destroy all Confidential Information and any Tangible Embodiments that are in the possession of Recipient and to certify the return or destruction of all such Confidential Information and embodiments.\n6. Warranty. NO WARRANTY IS MADE BY EITHER PARTY UNDER THIS AGREEMENT. ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT IS PROVIDED “AS IS. ”\n7. Miscellaneous. This Agreement does not create any agency or partnership relationship between the parties hereto. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey governing\nsuch agreements, without regard to conflicts-of-law principles. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate federal or state court located in the State of New Jersey,\nand the parties agree not to raise, and waive, any objections or defenses based upon venue or forum non conveniens. This Agreement contains the complete and exclusive agreement of the parties with respect to the subject matter hereof\nand supersedes all prior agreements and understandings whether written or oral, express or implied. Except where expressly indicated otherwise, the words “written” or “in writing” shall include, but not be limited to, written or printed\ndocuments, in any format now know or later developed including electronic and facsimile transmissions and computer disks or tapes\nB-2\nCONFIDENTIALITY AGREEMENT\n(whether machine or user readable). If any provision of this Agreement is held invalid, illegal or unenforceable by a court of competent jurisdiction, such shall not affect any other provision of this Agreement, which shall remain in full\nforce and effect. No amendment or alteration of the terms of this Agreement shall be effective unless made in writing and executed by both parties hereto. A failure or delay in exercising any right in respect to this Agreement shall not be\npresumed to operate as a waiver, and a single or partial exercise of any right shall not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right. Any modification or waiver of any provision\nof this Agreement shall not be effective unless made in writing. Any such waiver shall be effective only in the specific instance and for the purpose given.\nIN WITNESS WHEREOF, the parties have caused this Confidentiality Agreement to be executed below by their duly authorized signatories.\nAEGERION PHARMACEUTICALS, INC .\nBy:\nBy:\nName:\nName:\nTitle:\nTitle:\nDate:\nDate:\nAddress for notices to Recipient:\nAddress for notices to Aegerion:\nB-3
+dbee88e1251c9ca0e6667e4c099c2971.pdf	effective_date jurisdiction party term	EX-99 .(D)(2) 10 a2230805zex-99 _d2.htm EX-99.(D)(2)\nQuickLinks -- Click here to rapidly navigate through this document\nEXHIBIT (d)(2)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this "Agreement"), effective as of October 6, 2016 (the "Effective Date"), is by and between Arctic Cat Inc., a Minnesota corporation ("Arctic Cat"), and Textron Inc., a Delaware corporation with\nits headquarters located in Providence, Rhode Island ("Recipient").\nWHEREAS, in connection with Recipient's evaluation of a potential strategic transaction to be negotiated between Arctic Cat and Recipient (a "Transaction"), Recipient desires to receive certain information from Arctic Cat that is\nnon-public, confidential, or proprietary in nature; and\nWHEREAS, Arctic Cat desires to disclose to Recipient non-public, confidential, or proprietary information regarding Arctic Cat, subject to the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, Arctic Cat and Recipient agree as follows:\n1.\nArctic Cat and Recipient agree that, as used in this Agreement, "Confidential Information" shall refer to all information that is not generally known to the public, or that is confidential or proprietary, and is disclosed before, on or\nafter the Effective Date by Arctic Cat to Recipient or its affiliates, or to any employees, officers, directors, partners, shareholders, agents, attorneys, accountants or advisors (collectively, "Representatives") of Recipient or its\naffiliates, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," including, without limitation:\na)\nall information concerning Arctic Cat's and its affiliates', and their dealers', customers', suppliers', commercial partners' and other third parties', past, present and future business affairs including, without limitation, information\nregarding products and product plans and designs, services, supplier information, subcontractor information, consultant information, organizational structure and internal practices, forecasts, sales and other financial information and\nresults, records and budgets, banking and investment information, capital investments, current and potential strategic initiatives, partnerships and relationships, pricing or purchasing information, and business, marketing,\ndevelopment, financial, sales and other commercial strategies, plans or proposals, initiatives, techniques, programs, and methods of operation;\nb)\ninformation relating to proprietary rights and data, ideas, know-how, trade secrets, inventions, licenses, techniques, improvements, design, design concepts and documentation, drawings, schematics, algorithms, source code, object\ncode, research, development, technology, processes, program documentation, product development, electronic data, software owned, licensed or developed by Arctic Cat or its affiliates, formulae, technical information, licenses,\npending patentable materials and/or designs, tests and/or test standards or manuals;\nc)\ninformation relating to employees and employee compensation and benefits;\nd)\nany third-party confidential information included with, or incorporated in, any information provided by Arctic Cat to Recipient or its Representatives;\ne)\nany other information that would reasonably be considered non-public, confidential or proprietary given the nature of the information and the businesses of Arctic Cat and Recipient; and\nf)\nall notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations and other materials (collectively, "Notes") prepared by or for\n1\nRecipient or its Representatives that contain, are based on, or otherwise reflect or are derived from, in whole or in part, any of the foregoing.\n2.\nExcept as required by applicable federal, state or local law or regulation, the term "Confidential Information" as used in this Agreement shall not include information that:\na)\nat the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any act or omission by Recipient or any of its Representatives;\nb)\nat the time of disclosure is, or thereafter becomes, available to Recipient on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information\nto Recipient by any legal, fiduciary or contractual obligation;\nc)\nwas known by or in the possession of Recipient, as established by documentary evidence, prior to being disclosed by or on behalf of Arctic Cat pursuant to this Agreement; or\nd)\nwas or is independently developed by Recipient, as established by documentary evidence, without reference to or use of, in whole or in part, any of Arctic Cat's Confidential Information.\n3.\nRecipient agrees that the Confidential Information shall be used only to evaluate a Transaction and shall not be used for any other purpose or disclosed to any third party except as provided herein. Recipient agrees not to take any\naction that would, directly or indirectly, cause a law, regulation or court order to require disclosure of any Confidential Information. Notwithstanding the foregoing, in the event that Recipient is required by law or regulation, or a\nvalid order issued by a court or governmental agency of competent jurisdiction, to disclose any Confidential Information, Recipient will: (i) provide Arctic Cat with prompt notice of such requirement prior to the disclosure; (ii) refrain\nfrom taking an action if Recipient, by so refraining, would not be required to disclose such Confidential Information; (iii) give Arctic Cat all available information, reasonable assistance and necessary authority to enable Arctic Cat to\ntake the measures that Arctic Cat, in its sole discretion, may deem appropriate or necessary to protect the Confidential Information from disclosure; and (iv) if, after providing such notice to Arctic Cat such that Arctic Cat has had an\nopportunity to seek protection or another remedy, Recipient remains subject to the requirement to disclose the Confidential Information, limit what is disclosed to the maximum extent possible under law or regulation and use\ncommercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.\n4.\nRecipient agrees that it will comply, and will require its Representatives to comply, with all applicable federal, state and local data protection laws and regulations in the maintenance, disclosure and use of all Personal Information\ncontained in any Confidential Information that is disclosed to the Recipient or its Representatives hereunder. For purposes of this Agreement, "Personal Information" means information that relates to an individual person and\nidentifies or can be used to identify, locate or contact that individual alone or when combined with other personal or identifying information that is or can be associated with that specific individual.\n5.\nRecipient acknowledges that it conducts business in similar and adjacent business spaces as Arctic Cat, and for that reason agrees to hold all Confidential Information in absolute trust and confidence, and to protect and safeguard\nagainst the unnecessary dissemination of Confidential Information both inside and outside the Recipient's businesses. Recipient will not disclose or render accessible Confidential Information to Recipient's affiliates unless and until\nconsented to in writing by Arctic Cat. Recipient shall further take all steps necessary and\n2\nsufficient to ensure that Confidential Information is not rendered accessible to individual Representatives that are not directly involved in evaluating the Transaction. Recipient will further ensure that all individuals who are given\naccess to Confidential Information will be specifically identified to Arctic Cat in writing in advance of being provided access to Confidential Information. Upon written notification, Arctic Cat shall have two business days to\nobject to any individual Recipient being provided access to Confidential Information, unless earlier waived in writing by Arctic Cat. In advance of being provided access to Confidential Information, each individual Recipient\nwill (i) be provided a copy of this Agreement and (ii) execute an acknowledgement in the form provided in Addendum A stating they agree to be bound by and will conduct their investigation in accordance with this Agreement\nand agree to comply with all applicable on-site access, remote access and related security rules and procedures of Arctic Cat. Recipient will be responsible for any breach of this Agreement by all those who gain access to\nConfidential Information via Recipient or its Representatives.\n6.\nExcept as required by applicable federal, state or local law or regulation, or as otherwise consented to in writing by Arctic Cat, the Recipient shall not, and shall not permit its Representatives to disclose to any person that: (i) the\nConfidential Information has been made available to Recipient or its Representatives; (ii) that discussions or negotiations may be, or are, underway between the Recipient and Arctic Cat regarding the Confidential Information or a\nTransaction, including the status thereof; or (iii) any terms, conditions or other arrangements that are being discussed or negotiated in relation to the Confidential Information or a Transaction.\n7.\nRecipient acknowledges that none of Arctic Cat or its Representatives makes any express or implied representation or warranty as to the completeness and accuracy of any Confidential Information, and Recipient agrees that no such\npersons shall have any liability to Recipient or any of Recipient's Representatives relating to or arising from Recipient's or such Representatives' use of any Confidential Information or for any errors therein or omissions therefrom.\nRecipient also agrees that Recipient is not entitled to rely on the completeness or accuracy of any Confidential Information and that Recipient shall be entitled to rely solely on such representations and warranties as may be made by\nArctic Cat to Recipient in any definitive agreement relating to a Transaction, subject to the terms and conditions of such agreement. For purposes of this Agreement, a "definitive agreement" does not include an executed letter of\nintent or any other preliminary written agreement, nor does it include any written or oral acceptance of an offer or bid.\n8.\nArctic Cat hereby retains its entire right, title and interest, including all intellectual property rights, in and to all Confidential Information. Any disclosure of such Confidential Information hereunder shall not be construed as an\nassignment, grant, option, license or other transfer of any such right, title or interest.\n9.\nUpon expiration or termination of this Agreement, and upon written demand by Arctic Cat at any time, all Confidential Information, including copies, Notes, photographs, and memoranda, produced or taken by Recipient in\nconnection with evaluating a Transaction, whether in hard copy or electronic format, shall be destroyed or returned to Arctic Cat, unless otherwise authorized in writing by Arctic Cat; provided, however, that one copy may be\nretained for legal files for compliance and regulatory purposes and electronic archives and backups made in the ordinary course of business need not be purged, so long as they are maintained in accordance with the confidentiality\nprovisions of this Agreement. Upon written request, destruction of materials containing Confidential Information shall be certified by an officer of Recipient.\n3\n10.\nNo failure or delay by Arctic Cat in exercising any right, power or privilege hereunder shall operate as a waiver hereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of\nany right, power or privilege hereunder. Recipient agrees that money damages would not be a sufficient remedy for any breach of this Agreement by Recipient or its Representatives, and that in addition to all other remedies Arctic\nCat shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach. Recipient further agrees to waive, and to use its reasonable best efforts to cause its Representatives to waive,\nany requirement for the securing or posting of any bond in connection with such remedy.\n11.\nRecipient agrees to promptly notify Arctic Cat of any unauthorized disclosure of Confidential Information or other breaches of this Agreement by Recipient or its Representatives of which Recipient or its Representatives have\nknowledge and to fully cooperate with Arctic Cat in any effort undertaken by Arctic Cat to enforce its rights related to such unauthorized disclosure.\n12.\nNo party to this Agreement shall be under any obligation to enter into any further agreements with the other party or its Representatives as a result of this Agreement. Arctic Cat and its Representatives shall be free at all times to\nconduct their business, operations and affairs in their sole discretion and to enter into any agreements with any other party, including with the respect to a Transaction. Any such activities by Arctic Cat or its Representatives shall not\nbe a breach of this Agreement.\n13.\nWithout the written consent of Arctic Cat, Recipient and its Representatives shall not, during the term of this Agreement and for a period of eighteen months from expiration or termination of this Agreement, solicit for employment\nany persons who are employees of Arctic Cat or any of its affiliates as of the date of this Agreement or at the time this Agreement expires or is terminated. Nothing contained herein shall preclude the hiring of any such employee\nwho: (i) Recipient was in discussions with regarding possible employment prior to the signing of this Agreement; (ii) responds to a general solicitation of employment through an advertisement not targeted specifically at Arctic Cat or\nits employees; or (iii) is referred to Recipient by search firms, employment agencies, or other similar entities, provided that such entities have not been specifically instructed by Recipient to solicit the employees of Arctic Cat.\n14.\nIn consideration of the Confidential Information being furnished to Recipient, Recipient hereby agrees that, during the term of this Agreement and for a period of eighteen months following the expiration or termination of this\nAgreement (the "Standstill Period") , neither Recipient nor Recipient's directors, officers, employees or subsidiaries, nor any "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the\n"Exchange Act")) of which Recipient or any of its directors, officers, employees or subsidiaries is a party, will assist or encourage others (including by providing financing) to, directly or indirectly, without the prior written consent\nor request of the Board of Directors of Arctic Cat or an authorized Special Committee of such Board, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets\nof Arctic Cat or any of its subsidiaries, any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities or assets (other than purchases of\nproducts in the ordinary course of business), (ii) enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, material asset purchase, business combination, recapitalization, restructuring or other extraordinary\ntransaction involving Arctic Cat or engage in or participate in any way in any transaction regarding control of Arctic Cat, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote or seek to advise or\ninfluence any person with respect to the voting of, any voting securities of Arctic Cat, in opposition to the slate of directors nominated\n4\nby Arctic Cat or any other item of business recommended by Arctic Cat's Board of Directors to be voted on at any meeting of Arctic Cat's shareholders, (iv) form, join or in any way participate in a "group" (within the meaning\nof Section 13(d)(3) of the Exchange Act) with respect to any voting securities of Arctic Cat, (v) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of Arctic Cat,\n(vi) nominate a competing slate of directors at any meeting of the Company's shareholders, (vii) otherwise act, alone or in concert with others, to seek to control or influence the management or policies of Arctic Cat,\n(viii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing, or (ix) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other\npersons in connection with the foregoing.\nRecipient further agrees that during the Standstill Period, neither it nor any of its Representatives will, directly or indirectly, without the prior written consent of the Board of Directors of Arctic Cat or an authorized Special\nCommittee of such Board, (x) make any request directly or indirectly, to amend or waive any provision of this Section 14 (including this sentence), or (y) take any action not requested by Arctic Cat that might require Arctic Cat\nto make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. Notwithstanding the foregoing, the preceding restrictions of this section shall\nterminate in the event that another person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) (a) shall have entered into a definitive agreement with Arctic Cat to acquire a controlling interest in Arctic Cat\nor all or substantially all of its assets or (b) has launched or publicly stated its intention to launch a tender or exchange offer for a majority of Arctic Cat's capital stock and Arctic Cat files a Schedule 14D-9 with respect to such\noffer that recommends acceptance of such tender or exchange offer.\n15.\nRecipient hereby acknowledges that it is aware, and that it will advise its Representatives who receive any Confidential Information, that the United States securities laws prohibit any person who has received from an issuer material,\nnonpublic information from purchasing or selling securities of such issuer (and options, warrants and rights relating thereto) or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities.\n16.\nRecipient agrees to defend, indemnify and hold harmless Arctic Cat, its affiliates and their respective Representatives, successors and permitted assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments,\ninterest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees, in connection with any third party claim, suit, action or proceeding arising out of or resulting from a material breach of this\nAgreement by Recipient or any of its Representatives.\n17.\nThis Agreement shall be governed by the laws of the State of Minnesota. Arctic Cat reserves the right to assign all of its rights under this Agreement to any of its affiliates or to a successor in interest to the business of Arctic Cat,\nincluding the right to enforce this Agreement. Recipient hereby consents to any such assignment. Recipient shall not assign any of its rights or delegate any of its obligations hereunder without Arctic Cat's prior written consent. Any\npurported assignment or delegation by Recipient shall be null and void.\n18.\nThe term of this Agreement shall commence on the Effective Date and shall expire one year from the Effective Date, provided that either Party may terminate this Agreement at any time by providing written notice to the other Party.\nIn addition, Recipient agrees to promptly inform Arctic Cat if Recipient determines not to proceed with a Transaction. Notwithstanding anything to the contrary herein, each Party's rights and obligations under this Agreement shall\n5\nsurvive the expiration or termination of this Agreement for a period of three years from the date of such expiration or termination, even after the return or destruction of Confidential Information by Recipient (the "Survival\nPeriod"), provided the provisions of Sections 13 and 14 of this Agreement shall expire as provided in such Sections, and provided further that, with respect to the trade secrets of Arctic Cat, the Survival Period shall last for as\nlong as such Confidential Information qualifies as a trade secret under applicable federal, state or local law, and with respect to Personal Information disclosed by Arctic Cat, the Survival Period shall last for the period of time\nrequired under applicable federal state and/or local law.\n19.\nAll notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered and received by hand; (ii) when received by the addressee\nif sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or electronic transmission if sent during normal business hours of the recipient of the communication; or (d) on the third\ncalendar day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the signature page hereto (or such\nother addresses as designated from time to time in accordance with this section).\n20.\nThis Agreement contains the entire agreement between Arctic Cat and Recipient concerning the subject matter hereof, and no provision of this Agreement may be waived, amended or modified, in whole or in part, nor any consent\ngiven, unless approved in writing by a duly authorized Representative of each of Arctic Cat and Recipient, which writing specifically refers to this Agreement and the provision so amended or modified or for which such waiver or\nconsent is given. In the event that any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or\nimpaired thereby.\n21.\nIf any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render\nunenforceable such term or provision in any other jurisdiction.\n22.\nThis Agreement may be executed in one or more counterparts (including by means of facsimile or electronically transmitted portable document format (PDF) signature pages), each of which shall be deemed to be an original, but all\nof which together shall constitute and be one and the same instrument.\nUpon execution hereof by both Arctic Cat and Recipient, this Agreement shall become a binding agreement between Arctic Cat and Recipient.\n[Signature Page Follows]\n6\nIN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the Effective Date.\nARCTIC CAT INC.\nTEXTRON INC.\nBy:\n/s/ CHRISTOPHER T. METZ\nBy:\n/s/ SCOTT HEGSTROM\nName: Christopher T. Metz\nName: Scott Hegstrom\nTitle: President and Chief Executive Officer\nTitle: Vice President, Mergers & Acquisitions\nAddress: 500 North 3d Street,\nMinneapolis, MN 55401\nAddress: 40 Westminster Street,\nProvidence, RI 02903\nTelephone: 612-305 -1802\nTelephone: 401-457 -2386\nFax:\nFax:\n401-457 -3611\n[Signature Page to Confidentiality Agreement]\nQuickLinks\nEXHIBIT (d)(2)\nCONFIDENTIALITY AGREEMENT	EX-99.(D)(2) 10 a22308052ex-99_d2.htm EX-99.(D)(2)\nQuickLinks -- Click here to rapidly navigate through this document\nEXHIBIT (d)(2)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this "Agreement"), effective as of October 6, 2016 (the "Effective Date"), is by and between Arctic Cat Inc., a Minnesota corporation (" Arctic Cat"), and Textion Inc, a Delaware corporation with\nits headquarters located in Providence, Rhode Island (" Recipient").\nWHEREA S, in connection with Recipient's evaluation of a potential strategic transaction to be negotiated between Arctic Cat and Recipient (a "Transaction"), Recipient desires to receive certain information from Arctic Cat that is\nnon-public, confidential, or propriemry in nature,- and\nWHEREA S, Arctic Cat desires to disclose to Recipient non-public, confidential, or proprietary information regarding Arctic Cat, subject to the terms and conditions of this Agreement\nNOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, Arctic Cat and Recipient agree as follows:\n1.\nArctic Cat and Recipient agree that, as used in this Agreement, "Confidential Information" shall referto all information that is not generally known to the public, or that is confidential or proprietary, and is disclosed before, on or\nafter the Effective Date by Arctic Cat to Recipient or its affiliates, or to any employees, officers, directors, partners, shareholders, agents, attorneys, accountants or advisors (collectively, "Representatives") of Recipient orits\naffiliates, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," including, without limimtion:\na)\nall information concerning Arctic Cat‘s and its affiliates‘, and their dealers', customers', suppliers', commercial partners‘ and other third parties', past, present and future business affairs including, without limitation, information\nregarding products and product plans and designs, services, supplier information, subcontractor information, consultant information, organizational structure and internal practices, forecasts, sales and other financial information and\nresults, records and budgets, banking and investment information, capiml investments, current and potential strategic initiatives, partnerships and relationships, pricing or purchasing information, and business, marketing,\ndevelopment, financial, sales and other commercial strategies, plans or proposals, initiatives, techniques, programs, and methods of operation;\nh)\ninformation relating to proprietary rights and dam, ideas, know-how, trade secrets, inventions, licenses, techniques, improvements, design, design concepts and documentation, drawings, schematics, algorithms, source code, object\ncode, research, development, technology, processes, program documenmtion, product development, electronic data, software owned, licensed or developed by Arctic Cat or its affiliates, formulae, technical information, licenses,\npending patenmble materials and/or designs, tests and/or test standards or manuals;\nC)\ninformation relating to employees and employee compensation and benefits;\nd)\nany third-party confidential information included with, or incorporated in, any information provided by Arctic Cat to Recipient or its Representatives;\ne)\nany other information that would reasonably be considered non-public, confidential or proprietary given the nature of the information and the businesses of Arctic Cat and Recipient; and\nf)\nall notes, analyses, compilations, repom, forecasts, studies, samples, data, smtistics, summaries, interpretations and other materials (collectively, "Notes") prepared by or for\nRecipient orits Representatives that contain, are based on, or otherwise reflect or are derived from, in whole or in part, any of the foregoing.\n2.\nExcept as required by applicable federal, state or local law or regulation, the term "Confidential Information" as used in this Agreement shall not include information that:\na)\nat the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any act or omission by Recipient or any of its Representatives;\nh)\nat the time of disclosure is, or thereafter becomes, available to Recipient on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information\nto Recipient by any legal, fiduciary or contractual obligation;\nC)\nwas known by or in the possession of Recipient, as esmblished by documentary evidence, prior to being disclosed by or on behalf of Arctic Cat pursuant to this Agreement; or\nd)\nwas or is independently developed by Recipient, as established by documentary evidence, without reference to or use of, in whole or in part, any of Arctic Cat‘s Confidential Information.\n3.\nRecipient agrees that the Confidential Information shall be used only to evaluate a Transaction and shall not be used for any other purpose or disclosed to any third party except as provided herein. Recipient agrees not to mke any\naction that would, directly or indirectly, cause a law, regulation or court order to require disclosure of any Confidential Information Notwithsmnding the foregoing, in the event that Recipient is required by law or regulation, or a\nvalid order issued by a court or governmental agency of competent jurisdiction, to disclose any Confidential Information, Recipient will: (i) provide Arctic Cat with prompt notice of such requirement prior to the disclosure,- (ii) refrain\nfrom taking an action if Recipient, by so refraining, would not be required to disclose such Confidential Information; (iii) give Arctic Cat all available information, reasonable assismnce and necessary authority to enable Arctic Cat to\ntake the measures thatArctic Cat, in its sole discretion, may deem appropriate or necessary to protect the Confidential Information from disclosure; and (iv) if, after providing such notice to Arctic Cat such that Arctic Cat has had an\nopportunity to seek protection or another remedy, Recipient remains subject to the requirement to disclose the Confidential Information, limit what is disclosed to the maximum extent possible under law or regulation and use\ncommercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.\n4.\nRecipient agrees that it will comply, and will require its Represenmtives to comply, with all applicable federal, smte and local dam protection laws and regulations in the maintenance, disclosure and use of all Personal Information\ncontained in any Confidential Information that is disclosed to the Recipient or its Represenmtives hereunder. For purposes of this Agreement, "Personal Information" means information that relates to an individual person and\nidentifies or can be used to identify, locate or contact that individual alone or when combined with other personal or identifying information that is or can be associated with that specific individual.\n5.\nRecipient acknowledges that it conducts business in similar and adjacent business spaces as Arctic Cat, and for that reason agrees to hold all Confidential Information in absolute trust and confidence, and to protect and safeguard\nagainst the unnecessary dissemination of Confidential Information both inside and outside the Recipient's businesses. Recipient will not disclose or render accessible Confidential Information to Recipient's affiliates unless and until\nconsented to in writing by Arctic Cat. Recipient shall further take all steps necessary and\nsufficient to ensure that Confidential Information is not rendered accessible to individual Representatives that are not directly involved in evaluating the Transaction. Recipient will further ensure that all individuals who are given\naccess to Confidential Information will be specifically identified to Arctic Cat in writing in advance of being provided access to Confidential Information. Upon written notification, Arctic Cat shall have two business days to\nobject to any individual Recipient being provided access to Confidential Information, unless earlier waived in writing by Arctic Cat. In advance of being provided access to Confidential Information, each individual Recipient\nwill (i) be provided a copy of this Agreement and (ii) execute an acknowledgement in the form provided in Addendum A stating they agree to be bound by and will conduct their investigation in accordance with this Agreement\nand agree to comply with all applicable on-site access, remote access and related security rules and procedures of Arctic Cat. Recipient will be responsible for any breach of this Agreement by all those who gain access to\nConfidential Information via Recipient or its Representatives.\n6.\nExcept as required by applicable federal, state or local law or regulation, or as otherwise consented to in writing by Arctic Cat, the Recipient shall not, and shall not permit its Representatives to disclose to any person that: (i) the\nConfidential Information has been made available to Recipient or its Representatives; (ii) that discussions or negotiations may be, or are, underway between the Recipient and Arctic Cat regarding the Confidential Information or a\nTransaction, including the status thereof; or (iii) any terms, conditions or other arrangements that are being discussed or negotiated in relation to the Confidential Information or a Transaction\n7.\nRecipient acknowledges that none of Arctic Cat or its Representatives makes any express or implied representation or warranty as to the completeness and accuracy of any Confidential Information, and Recipient agrees that no such\npersons shall have any liability to Recipient or any of Recipient's Representatives relating to or arising from Recipient‘s or such Represenmtives' use of any Confidential Information or for any errors therein or omissions therefrom.\nRecipient also agrees that Recipient is not entitled to rely on the completeness or accuracy of any Confidential Information and that Recipient shall be entitled to rely solely on such representations and warranties as may be made by\nArctic Cat to Recipient in any definitive agreement relating to a Transaction, subject to the terms and conditions of such agreement. For purposes of this Agreement, a "definitive agreement" does not include an executed letter of\nintent or any other preliminary written agreement, nor does it include any written or oral acceptance of an offer or bid.\n8.\nArctic Cat hereby retains its entire right, title and interest, including all intellectual property rights, in and to all Confidential Information. Any disclosure of such Confidential Information hereunder shall not be construed as an\nassignment, grant, option, license or other transfer of any such right, title or interest.\n9.\nUpon expiration or termination of this Agreement, and upon written demand by Arctic Cat at any time, all Confidential Information, including copies, Notes, photographs, and memoranda, produced or taken by Recipient in\nconnection with evaluating a Transaction, whether in hard copy or electronic format, shall be destroyed or returned to Arctic Cat, unless otherwise authorized in writing by Arctic Cat; provided, however, that one copy may be\nremined for legal files for compliance and regulatory purposes and electronic archives and backups made in the ordinary course of business need not be purged, so long as they are maintained in accordance with the confidentiality\nprovisions of this Agreement. Upon written request, destruction of materials conmining Confidential Information shall be certified by an officer of Recipient.\n \n10\nNo failure or delay by Arctic Cat in exercising any right, power or privilege hereunder shall operate as a waiver hereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of\nany right, power or privilege hereunderi Recipient agrees that money damages would not be a sufficient remedy for any breach of this Agreement by Recipient orits Representatives, and that in addition to all other remedies Arctic\nCat shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach. Recipient further agrees to waive, and to use its reasonable best efforts to cause its Representatives to waive,\nany requirement for the securing or posting of any bond in connection with such remedy.\n1r\n{ecipient agrees to promptly notify Arctic Cat of any unauthorized disclosure of Confidential Information or other breaches of this Agreement by Recipient or its Representatives of which Recipient or its Represenmtives have\nmowledge and to fully cooperate with Arctic Cat in any effort undertaken by Arctic Cat to enforce its rights related to such unauthorized disclosure.\n2\nNo party to this Agreement shall be under any obligation to enter into any further agreements with the other party orits Representatives as a result of this Agreement. Arctic Cat and its Representatives shall be free at all times to\nconduct their business, operations and affairs in their sole discretion and to enter into any agreements with any other party, including with the respect to a Transaction. Any such activities by Arctic Cat or its Representatives shall not\ne a breach of this Agreement.\n \n3\nWithout the written consent of Arctic Cat, Recipient and its Representatives shall not, during the term of this Agreement and for a period of eighteen months from expiration or termination of this Agreement, solicit for employment\nany persons who are employees of Arctic Cat or any of its affiliates as of the date of this Agreement or at the time this Agreement expires or is terminated Nothing contained herein shall preclude the hiring of any such employee\nwho: (i) Recipient was in discussions with regarding possible employment priorto the signing of this Agreement; (ii) responds to a general solicitation of employment through an advertisement not mrgeted specifically at Arctic Cat or\nits employees,- or (iii) is referred to Recipient by search firms, employment agencies, or other similar entities, provided that such entities have not been specifically instructed by Recipient to solicit the employees of Arctic Cat.\n14\nIn consideration of the Confidential Information being furnished to Recipient, Recipient hereby agrees that, during the term of this Agreement and for a period of eighteen months following the expiration or termination of this\nAgreement (the "standstill Period"), neither Recipient nor Recipient‘s directors, officers, employees or subsidiaries, nor any "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the\n"Exchange Act")) of which Recipient or any of its directors, officers, employees or subsidiaries is a party, will assist or encourage others (including by providing financing) to, directly orindirectly, without the prior written consent\nor request of the Board of Directors of Arctic Cat or an authorized Special Committee of such Board, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets\nof Arctic Cat or any of its subsidiaries, any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities or assets (other than purchases of\nproducts in the ordinary course of business), (ii) enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, material asset purchase, business combination, recapitalization, restructuring or other extraordinary\ntransaction involving Arctic Cat or engage in or participate in any way in any transaction regarding control of Arctic Cat, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote or seek to advise or\ninfluence any person with respect to the voting of, any voting securities of Arctic Cat, in opposition to the slate of directors nominated\nby Arctic Cat or any other item of business recommended by Arctic Cat's Board of Directors to be voted on at any meeting of Arctic Cat's shareholders, (iv) form, join or in any way participate in a "group" (within the meaning\nof Section 13(d)(3) of the Exchange Act) with respect to any voting securities of Arctic Cat, (v) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of Arctic Cat,\n(vi) nominate a competing slate of directors at any meeting of the Company‘s shareholders, (vii) otherwise act, alone or in concert with others, to seek to control or influence the management or policies of Arctic Cat,\n(viii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing, or (ix) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other\npersons in connection with the foregoing.\nRecipient further agrees that during the standstill Period, neither it nor any of its Representatives will, directly or indirectly, without the prior written consent of the Board of Directors of Arctic Cat or an authorized Special\nCommittee of such Board, (x) make any request directly or indirectly, to amend or waive any provision of this Section 14 (including this sentence), or (y) take any action not requested by Arctic Cat that might require Arctic Cat\nto make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph Notwithsmnding the foregoing, the preceding restiictions of this section shall\ntemiinate in the event that another person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) (a) shall have entered into a definitive agreement with Arctic Cat to acquire a contiolling interest in Arctic Cat\nor all or substantially all of its assets or (b) has launched or publicly stated its intention to launch a tender or exchange offer for a majority of Arctic Cat‘s capiml stock and Arctic Cat files a Schedule 14D-9 with respect to such\noffer that recommends accepmnce of such tender or exchange offer.\n15\nRecipient hereby acknowledges that it is aware, and that it will advise its Representatives who receive any Confidential Information, that the United States securities laws prohibit any person who has received from an issuer material,\nnonpublic information from purchasing or selling securities of such issuer (and options, warrants and rights relating thereto) or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities.\n16i\nRecipient agrees to defend, indemnify and hold harmless Arctic Cat, its affiliates and their respective Representatives, successors and permitted assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments,\ninterest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys‘ fees, in connection with any third party claim, suit, action or proceeding arising out of or resulting from a material breach of this\nAgreement by Recipient or any of its Representatives.\n17i\nThis Agreement shall be governed by the laws of the Smte of Minnesota. Arctic Cat reserves the right to assign all of its rights under this Agreement to any of its affiliates orto a successor in interest to the business of Arctic Cat,\nincluding the right to enforce this Agreement. Recipient hereby consents to any such assignment. Recipient shall not assign any of its rights or delegate any of its obligations hereunder withoutArctic Cat's prior written consent. Any\npurported assignment or delegation by Recipient shall be null and void.\n18\nThe term of this Agreement shall commence on the Effective Date and shall expire one year from the Effective Date, provided that either Party may terminate this Agreement at any time by providing written notice to the other Party.\nIn addition, Recipient agrees to promptly inform Arctic Cat if Recipient determines not to proceed with a Transaction. Notwithstanding anything to the contiary herein, each Party's rights and obligations under this Agreement shall\nsurvive the expiration or termination of this Agreement for a period of three years from the date of such expiration or termination, even after the return or destruction of Confidential Information by Recipient (the "Survival\nPeriod"), provided the provisions of Sections 13 and 14 of this Agreement shall expire as provided in such Sections, and provided further that, with respect to the trade secrets of Arctic Cat, the Survival Period shall last for as\nlong as such Confidential Information qualifies as a trade secret under applicable federal, smte or local law, and with respect to Personal Information disclosed by Arctic Cat, the Survival Period shall last for the period of time\nrequired under applicable federal smte and/or local law.\n19.\nAll notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (1) when delivered and received by hand,- (ii) when received by the addressee\nif sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or electronic transmission if sent during normal business hours of the recipient of the communication; or (d) on the third\ncalendar day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the signature page hereto (or such\nother addresses as designated from time to time in accordance with this section).\n20.\nThis Agreement contains the entire agreement between Arctic Cat and Recipient concerning the subject matter hereof, and no provision of this Agreement may be waived, amended or modified, in whole or in part, nor any consent\ngiven, unless approved in writing by a duly authorized Representative of each of Arctic Cat and Recipient, which writing specifically refers to this Agreement and the provision so amended or modified or for which such waiver or\nconsent is given. In the event that any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or\nimpaired thereby\n21.\nIf any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render\nunenforceable such term or provision in any other jurisdiction.\n22.\nThis Agreement may be executed in one or more counterparts (including by means of facsimile or electronically transmitted portable document format (PDF) signature pages), each of which shall be deemed to be an original, but all\nof which together shall constitute and be one and the same instrument.\nUpon execution hereof by both Arctic Cat and Recipient, this Agreement shall become a binding agreement between Arctic Cat and Recipient.\n[Signature Page Follows]\nIN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the Effective Date.\nARCTIC CAT INC.\n/5/ CHRISTOPHER T. METZ\nBy: By:\nName: ChristopherT. Meu\nTitle: President and Chief Executive Officer\nAddress: 500 North 3d Street,\nMinneapolis, MN 55401\nTelephone: 612-305-1802\nFax: Fax:\n[Signature Page to C onfidentiality Agreement] TEXTRON INC\n/5/ SCOTT HEGSTROM\nName: Scott Hegstmm\nTitle: Vice President, Mergers & Acquisitions\nAddress: 40 Westminster Street,\nProvidence, RI 02903\nTelephone: 401-457-2386\n401-457-3611\nQuickLinks\nEXHIBIT (d)(2)\nCONFIDENTIALITY AGREEMENT	EX-99.(D)(2) 10 a2230805zex-99_d2.htr EX-99.(D)(2)\nQuickLinks Click here to rapidly navigate through this document\nEXHIBIT (d)(2)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this "Agreement") effective as of October 6, 2016 (the "Effective Date"), is by and between Arctic Cat Inc. a Minnesota corporation ("Arctic Cat"), and Textron Inc. a Delaware corporation with\nits headquarters located in Providence, Rhode Island C 'Recipient").\nWHEREAS, in connection with Recipient's evaluation of a potential strategic transaction to be negotiated between Arctic Cat and Recipient (a "Transaction"), Recipient desires to receive certain information from\nArctic\nCat\ntha\nis\nnon-public, confidential, or proprietary in nature; and\nWHEREAS, rctic Cat desires to disclose to Recipient non-public, confidential, or proprietary information regarding Arctic Cat, subject to the terms and conditions of this Agreement\nNOW THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein Arctic Cat and Recipient agree as follows:\n1.\nArctic Cat and Recipient agree that, as used in this Agreement, "'Confidential Information" shall refer to all information that is not generally known to the public, or that is confidential or proprietary, and is disclosed before, on or\nafter\nthe Effective Date by Arctic Cat to Recipient or its affiliates, or to any employees, officers, directors partners shareholders, agents, attomeys, accountants or advisors (collectively, "Representatives" of Recipient or its\naffiliates, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," including, without limitation:\na)\nall information concerning Arctic Cat's and its affiliates', and their dealers', customers, suppliers', commercial partners and other third parties', past, present and future business affairs including, without limitation, information\nregarding products and product plans and designs, services, supplier information, subcontractor information, consultant information, organizational structure and internal practices, forecasts sales and other financial information and\nresults, records and budgets, banking and investment information, capital investments, current and potential strategic initiatives, partnerships and relationships, pricing or purchasing information, and business marketing,\ndevelopment, financial, sales and other commercial strategies, plans or proposals, initiatives, techniques, programs, and methods of operation\nb)\ninformation relating to proprietary rights and data, ideas, know-how, trade secrets, inventions licenses, techniques, improvements, design design concepts and documentation, drawings, schematics algorithms source code, object\ncode research, development, technology, processes program documentation product development, electronic data, software owned licensed or developed by Arctic Cat or its affiliates, formulae technical information licenses,\npending patentable materials and/or designs, tests and/or test standards or manuals;\nc)\ninformation relating to employees and employee compensation and benefits;\nd)\nany third-party confidential information included with, or incorporated in, any information provided by Arctic Cat to Recipient or its Representatives;\ne)\nany other information that would reasonably be considered non-public, confidential or proprietary given the nature of the information and the businesses of Arctic Cat and Recipient; and\nf)\nall notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations and other materials (collectively, "Notes") prepared by or for\n1\nRecipient or its Representatives that contain are based on, or otherwise reflect or are derived from, in whole or in part, any of the foregoing.\n2.\nExcept as required by applicable federal, state or local law or regulation, the term "Confidential Information" as used in this Agreement shall not include information that:\na)\nat the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any act or omission by Recipient or any of its Representatives;\nb)\nat the time of disclosure is, or thereafter becomes available to Recipient on a non -confidential basis from a ird-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information\nto Recipient by any legal, fiduciary or contractual obligation;\nc)\nwas known by or in the possession of Recipient, as established by documentary evidence, prior to being disclosed by or on behal of Arctic Cat pursuant to this A greement; or\nd)\nwas or is independently developed by Recipient, as established by documentary evidence, without reference to or use of, in whole or in part, any of Arctic Cat's Confidential Information.\n3.\nRecipient agrees that the Confidential Information shall be used only to evaluate a Transaction and shall no be used for any other purpose or disclosed to any third party except as provided herein. Recipient agrees not to take any\naction that would, directly or indirectly, cause a law, regulation or court order to require disclosure of any Confidential Information. Notwithstanding the foregoing in the event that Recipient is required by law or regulation or a\nvalid order issued by a court or govermental agency of competent jurisdiction, to disclose any Confidential Information, Recipient will (i) provide Arctic Cat with prompt notice of such requirement prior to the disclosure; (ii) refrain\nfrom taking an action if Recipient, by so refraining, would not be required to disclose such Confidential Information; (iii) give A Arctic Cat all available information, reasonable assistance and necessary authority to enable Arctic\nCa\nto\ntake the measures that Arctic Cat, in its sole discretion, may deem appropriate or necessary to protect the Confidential Information from disclosure; and (iv) if, after providing such notice to Arctic Cat such that Arctic Cat has had an\nopportunity to seek protection or another remedy, Recipient remains subject to the requirement to disclose the Confidential Information, limit what is disclosed to the maximum extent possible under law or regulation and use\ncommercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.\n4.\nRecipient agrees that it will comply, and will require its Representatives to comply, with all applicable federal, state and local data protection laws and regulations in the maintenance, disclosure and use of all Personal Information\ncontained in any Confidential Information that is disclosed to the Recipient or its Representatives hereunder. For purposes of this Agreement, "Personal Information" means information that relates to an individual person and\nidentifies or can be used to identify, locate or contact that individual alone or when combined with other personal or identifying information that is or can be associated with that specific individual.\n5.\nRecipient acknowledges that it conducts business in similar and adjacent business spaces as Arctic Cat, and for that reason agrees to hold all Confidential Information in absolute trust and confidence, and to protect and safeguard\nagainst the unnecessary dissemination of Confidential Information both inside and outside the Recipient's businesses. Recipient will not disclose or render accessible Confidential Information to Recipient's affiliates unless and until\nconsented to in writing by Arctic Cat. Recipient shall further take all steps necessary and\n2\nsufficient to ensure that Confidential Information is not rendered accessible to individual Representatives that are not directly involved in evaluating the Transaction. Recipient will further ensure that all individuals who are given\naccess to Confidential Information will be specifically identified to Arctic Cat in writing in advance of being provided access to Confidential Information. Upon written notification, Arctic Cat shall have two business days to\nobjec to any individual Recipient being provided access to Confidential Information, unless earlier waived in writing by Arctic Cat In advance of being provided access to Confidential Information, each individual Recipient\nwill (i) be provided a copy of this Agreement and (ii) execute an acknowledgement in the form provided in A Addendum A stating they agree to be bound by and will conduct their investigation in accordance with this A greement\nand agree to comply with all applicable on-site access remote access and related security rules and procedures of Arctic Cat. Recipient will be responsible for any breach of this greemen by all those who gain access to\nConfidential Information via Recipient or its Representatives.\n6.\nExcept as required by applicable federal, state or local law or regulation, or as otherwise consented to in writing by Arctic Cat the Recipient shall not, and shal not permit its Representatives to disclose to any person that: (i) the\nConfidential Information has been made available to Recipient or its Representatives; (ii) that discussions or negotiations may be, or are, underway between the Recipient and Arctic Cat regarding the Confidential Information or a\nTransaction, including the status thereof; or (iii) any terms, conditions or other arrangements that are being discussed or negotiated in relation to the Confidential Information or a Transaction.\n7.\nRecipient acknowledges that none of Arctic Cat or its Representatives makes any express or implied representation or warranty as to the completeness and accuracy of any Confidential Information and Recipient agrees that no such\npersons shall have any liability to Recipient or any of Recipient's Representatives relating to or arising from Recipient's or such Representatives use of any Confidential Information or for any errors therein or omissions therefrom.\nRecipient also agrees that Recipient is not entitled to rely on the completeness or accuracy of any Confidential Information and that Recipient shall be entitled to rely solely on such representations and warranties as may be made by\nArctic Cat to Recipient in any definitive agreement relating to a Transaction, subject to the terms and conditions of such agreement. For purposes of this Agreement, a "definitive agreement" does not include an executed letter of\nintent or any other preliminary written agreement, nor does it include any written or oral acceptance of an offer or bid.\n8.\nArctic Cat hereby retains its entire right, title and interest including all intellectual property rights, in and to all Confidential Information. Any disclosure of such Confidential Information hereunder shall not be construed as an\nassignment, grant, option, license or other transfer of any such right, title or interest.\n9.\nUpon expiration or termination of this A greement, and upon written demand by Arctic Cat at any time, all Confidential Information including copies, Notes, photographs, and memoranda, produced or taken by Recipient in\nconnection with evaluating a Transaction, whether in hard copy or electronic format shall be destroyed or retumed to Arctic Cat, unless otherwise authorized in writing by A rctic Cat provided, however, that one copy may be\nretained for legal files for compliance and regulatory purposes and electronic archives and backups made in the ordinary course of business need not be purged, so long as they are maintained in accordance with the confidentiality\nprovisions of this Agreement. Upon written request, destruction of materials containing Confidential Information shall be certified by an officer of Recipient.\n3\n10.\nNo failure or delay by Arctic Cat in exercising any right, power or privilege hereunder shall operate as a waiver hereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of\nany right, power or privilege hereunder. Recipient agrees that money damages would not be a sufficient remedy for any breach of this Agreemen by Recipient or its Representatives, and that in addition to all other remedies Arctic\nCat shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach Recipient further agrees to waive, and to use its reasonable best efforts to cause its Representatives to waive,\nany requirement for the securing or posting of any bond in connection with such remedy.\n11.\nRecipient agrees to promptly notify Arctic Cat of any unauthorized disclosure of Confidential Information or other breaches of this Agreement by Recipient or its Representatives of which Recipient or its Representatives have\nknowledge and to fully cooperate with Arctic Cat in any effort undertaken by Arctic Cat to enforce its rights related to such unauthorized disclosure.\n12.\nNo party to this Agreement shall be under any obligation to enter into any further agreements with the other party or its Representatives as a result of this Agreement Arctic Cat and its Representatives shall be free at all times to\nconduct their business, operations and affairs in their sole discretion and to enter into any agreements with any other party, including with the respect to a Transaction Any such activities by Arctic Cat or its Representatives shall not\nbe a breach of this Agreement.\n13.\nWithout the written consent of Arctic Cat, Recipient and its Representatives shall not, during the term of this Agreement and for a period of eighteen months from expiration or termination of this Agreement, solici for employment\nany persons who are employees of Arctic Cat or any of its affiliates as of the date of this Agreement or at the time this Agreement expires or is terminated. Nothing contained herein shall preclude the hiring of any such employee\nwho: (i) Recipient was in discussions with regarding possible employment prior to the signing of this Agreement; (ii) responds to a general solicitation of employment through an advertisement not targeted specifically at Arctic Ca or\nits employees; or (iii) is referred to Recipient by search firms, employment agencies, or other similar entities, provided that such entities have not been specifically instructed by Recipient to solicit the employees of Arctic Cat.\n14.\nIn consideration of the Confidential Information being fumished to Recipient Recipient hereby agrees that, during the term of this Agreement and for a period of eighteen months following the expiration or termination of this\nAgreement (the "Standstill Period"), neither Recipient nor Recipient's directors, officers, employees or subsidiaries, nor any "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the\n"Exchange Act") of which Recipient or any of its directors, officers, employees or subsidiaries is a party will assist or encourage others (including by providing financing) to, directly or indirectly, without the prior written consent\nor request of the Board of Directors of Arctic Cat or an authorized Special Committee of such Board, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets\nof Arctic Cat or any of its subsidiaries, any warrant or option to purchase such securities or assets any security convertible into any such securities, or any other right to acquire such securities or assets (other than purchases of\nproducts in the ordinary course of business) (ii) enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, material asset purchase, business combination, recapitalization, restructuring or other extraordinary\ntransaction involving Arctic Cat or engage in or participate in any way in any transaction regarding control of Arctic Cat, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote or seek to advise or\ninfluence any person with respect to the voting of, any voting securities of Arctic Cat, in opposition to the slate of directors nominated\n4\nby Arctic Cat or any other item of business recommended by Arctic Cat's Board of Directors to be voted on at any meeting of Arctic Cat's shareholders, (iv) form, join or in any way participate in a "group" (within the meaning\nof Section 13(d)(3) of the Exchange Act) with respect to any voting securities of Arctic Cat, (v) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of Arctic Cat,\n(vi) nominate a competing slate of directors at any meeting of the Company's shareholders (vii) otherwise act alone or in concert with others, to seek to control or influence the management or policies of Arctic Cat,\n(viii) disclose any intention plan or arrangement prohibited by, or inconsistent with, the foregoing, or (ix) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other\npersons in connection with the foregoing.\nRecipient further agrees that during the Standstill Period, neither it nor any of its Representatives will, directly or indirectly, without the prior written consent of the Board of Directors of Arctic Cat or an authorized Special\nCommittee of such Board, (x) make any request directly or indirectly, to amend or waive any provision of this Section 14 (including this sentence), or (y) take any action not requested by Arctic Cat that might require Arctic Cat\nto make a public announcement regarding the possibility of a business combination merger or other type of transaction described in this paragraph. Notwithstanding the foregoing, the preceding restrictions of this section shall\nterminate in the event that another person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) (a) shall have entered into a definitive agreement with Arctic Cat to acquire a controlling interest in Arctic Cat\nor all or substantially all of its assets or (b) has launched or publicly stated its intention to launch a tender or exchange offer for a majority of Arctic Cat's capital stock and Arctic Cat files a Schedule 14D-9 with respect to such\noffer that recommends acceptance of such tender or exchange offer.\n15.\nRecipient hereby acknowledges that it is aware, and that it will advise its Representatives who receive any Confidential Information, that the United States securities laws prohibit any person who has received from an issuer material,\nnonpublic information from purchasing or selling securities of such issuer (and options, warrants and rights relating thereto) or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities.\n16.\nRecipient agrees to defend indemnify and hold harmless Arctic Cat, its affiliates and their respective Representatives, successors and permitted assigns from and against all losses, damages liabilities, deficiencies, actions, judgments,\ninterest, awards, penalties, fines, costs or expenses of whatever kind including reasonable attomeys' fees, in connection with any third party claim, suit, action or proceeding arising out of or resulting from a material breach of this\nAgreement by Recipient or any of its Representatives.\n17.\nThis Agreement shall be govered by the laws of the State of Minnesota. Arctic Cat reserves the right to assign all of its rights under this Agreement to any of its affiliates or to a successor in interest to the business of Arctic Cat,\nincluding the right to enforce this Agreement. Recipient hereby consents to any such assignment Recipient shall not assign any of its rights or delegate any of its obligations hereunder without Arctic Cat's prior written consent. Any\npurported assignment or delegation by Recipient shall be null and void\n18.\nThe term of this Agreement shall commence on the Effective Date and shall expire one year from the Effective Date, provided that either Party may terminate this Agreement at any time by providing written notice to the other Party.\nIn addition, Recipient agrees to promptly inform Arctic Ca if Recipient determines not to proceed with a Transaction. Notwithstanding anything to the contrary herein, each Party's rights and obligations under this Agreement shall\n5\nsurvive the expiration or termination of this Agreement for a period of three years from the date of such expiration or termination even after the return or destruction of Confidential Information by Recipient (the "Survival\nPeriod"), provided the provisions of Sections 13 and 14 of this Agreement shall expire as provided in such Sections, and provided further that, with respect to the trade secrets of Arctic Cat, the Survival Period shall last for as\nlong as such Confidential Information qualifies as a trade secret under applicable federal, state or local law, and with respec to Personal Information disclosed by Arctic Cat the Survival Period shall last for the period of time\nrequired under applicable federal state and/or local law.\n19.\nAll notices, requests, consents, claims demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered and received by hand; (ii) when received by the addressee\nif sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or electronic transmission if sent during norma business hours of the recipient of the communication; or (d) on the third\ncalendar day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid Such communications must be sent to the respective parties at the addresses set forth on the signature page hereto (or such\nother addresses as designated from time to time in accordance with this section).\n20.\nThis A greement contains the entire agreement between Arctic Cat and Recipient concerning the subject matter hereof, and no provision of this Agreement may be waived, amended or modified in whole or in part nor any consent\ngiven unless approved in writing by a duly authorized Representative of each of Arctic Cat and Recipient, which writing specifically refers to this A greement and the provision so amended or modified or for which such waiver or\nconsent is given In the event that any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or\nimpaired thereby.\n21.\nIf any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity illegality or unenforceability shall not affect any other term or provision of this A greement or invalidate or render\nunenforceable such term or provision in any other jurisdiction.\n22.\nThis greemen may be executed in one or more counterparts (including by means of facsimile or electronically transmitted portable document format (PDF) signature pages), each of which shall be deemed to be an original, but\nall\nof which together shall constitute and be one and the same instrument.\nUpon execution hereof by both Arctic Cat and Recipient, this Agreement shall become a binding agreement between Arctic Cat and Recipient.\n[Signature Page Follows]\n6\nIN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the Effective Date.\nARCTIC CAT INC.\nTEXTRON INC.\nBy\n/s/ CHRISTOPHER T. METZ\nBy:\n/s/ SCOTT HEGSTROM\nName: Christopher T. Metz\nName: Scott Hegstrom\nTitle: President and Chief Executive Officer\nTitle: Vice President, Mergers & Acquisitions\nAddress: 500 North 3d Street,\nAddress: 40 Westminster Street,\nMinneapolis, MN 55401\nProvidence RI 02903\nTelephone: 612-305-1802\nTelephone: 401-457-2386\nFax:\nFax:\n401-457-3611\n[Signature Page to Confidentiality Agreement]\nQuickLinks\nEXHIBIT (d)(2)\nCONFIDENTIALITY AGREEMENT	EX-99 .(D)(2) 10 a2230805zex-99 _d2.htm EX-99.(D)(2)\nQuickLinks -- Click here to rapidly navigate through this document\nEXHIBIT (d)(2)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this "Agreement"), effective as of October 6, 2016 (the "Effective Date"), is by and between Arctic Cat Inc., a Minnesota corporation ("Arctic Cat"), and Textron Inc., a Delaware corporation with\nits headquarters located in Providence, Rhode Island ("Recipient").\nWHEREAS, in connection with Recipient's evaluation of a potential strategic transaction to be negotiated between Arctic Cat and Recipient (a "Transaction"), Recipient desires to receive certain information from Arctic Cat that is\nnon-public, confidential, or proprietary in nature; and\nWHEREAS, Arctic Cat desires to disclose to Recipient non-public, confidential, or proprietary information regarding Arctic Cat, subject to the terms and conditions of this Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, Arctic Cat and Recipient agree as follows:\n1.\nArctic Cat and Recipient agree that, as used in this Agreement, "Confidential Information" shall refer to all information that is not generally known to the public, or that is confidential or proprietary, and is disclosed before, on or\nafter the Effective Date by Arctic Cat to Recipient or its affiliates, or to any employees, officers, directors, partners, shareholders, agents, attorneys, accountants or advisors (collectively, "Representatives") of Recipient or its\naffiliates, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," including, without limitation:\na)\nall information concerning Arctic Cat's and its affiliates', and their dealers', customers', suppliers', commercial partners' and other third parties', past, present and future business affairs including, without limitation, information\nregarding products and product plans and designs, services, supplier information, subcontractor information, consultant information, organizational structure and internal practices, forecasts, sales and other financial information and\nresults, records and budgets, banking and investment information, capital investments, current and potential strategic initiatives, partnerships and relationships, pricing or purchasing information, and business, marketing,\ndevelopment, financial, sales and other commercial strategies, plans or proposals, initiatives, techniques, programs, and methods of operation;\nb)\ninformation relating to proprietary rights and data, ideas, know-how, trade secrets, inventions, licenses, techniques, improvements, design, design concepts and documentation, drawings, schematics, algorithms, source code, object\ncode, research, development, technology, processes, program documentation, product development, electronic data, software owned, licensed or developed by Arctic Cat or its affiliates, formulae, technical information, licenses,\npending patentable materials and/or designs, tests and/or test standards or manuals;\nc)\ninformation relating to employees and employee compensation and benefits;\nd)\nany third-party confidential information included with, or incorporated in, any information provided by Arctic Cat to Recipient or its Representatives;\ne)\nany other information that would reasonably be considered non-public, confidential or proprietary given the nature of the information and the businesses of Arctic Cat and Recipient; and\nf)\nall notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations and other materials (collectively, "Notes") prepared by or for\n1\nRecipient or its Representatives that contain, are based on, or otherwise reflect or are derived from, in whole or in part, any of the foregoing.\n2.\nExcept as required by applicable federal, state or local law or regulation, the term "Confidential Information" as used in this Agreement shall not include information that:\na)\nat the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any act or omission by Recipient or any of its Representatives;\nb)\nat the time of disclosure is, or thereafter becomes, available to Recipient on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information\nto Recipient by any legal, fiduciary or contractual obligation;\nc)\nwas known by or in the possession of Recipient, as established by documentary evidence, prior to being disclosed by or on behalf of Arctic Cat pursuant to this Agreement; or\nd)\nwas or is independently developed by Recipient, as established by documentary evidence, without reference to or use of, in whole or in part, any of Arctic Cat's Confidential Information.\n3.\nRecipient agrees that the Confidential Information shall be used only to evaluate a Transaction and shall not be used for any other purpose or disclosed to any third party except as provided herein. Recipient agrees not to take any\naction that would, directly or indirectly, cause a law, regulation or court order to require disclosure of any Confidential Information. Notwithstanding the foregoing, in the event that Recipient is required by law or regulation, or a\nvalid order issued by a court or governmental agency of competent jurisdiction, to disclose any Confidential Information, Recipient will: (i) provide Arctic Cat with prompt notice of such requirement prior to the disclosure; (ii) refrain\nfrom taking an action if Recipient, by so refraining, would not be required to disclose such Confidential Information; (iii) give Arctic Cat all available information, reasonable assistance and necessary authority to enable Arctic Cat to\ntake the measures that Arctic Cat, in its sole discretion, may deem appropriate or necessary to protect the Confidential Information from disclosure; and (iv) if, after providing such notice to Arctic Cat such that Arctic Cat has had an\nopportunity to seek protection or another remedy, Recipient remains subject to the requirement to disclose the Confidential Information, limit what is disclosed to the maximum extent possible under law or regulation and use\ncommercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.\n4.\nRecipient agrees that it will comply, and will require its Representatives to comply, with all applicable federal, state and local data protection laws and regulations in the maintenance, disclosure and use of all Personal Information\ncontained in any Confidential Information that is disclosed to the Recipient or its Representatives hereunder. For purposes of this Agreement, "Personal Information" means information that relates to an individual person and\nidentifies or can be used to identify, locate or contact that individual alone or when combined with other personal or identifying information that is or can be associated with that specific individual.\n5.\nRecipient acknowledges that it conducts business in similar and adjacent business spaces as Arctic Cat, and for that reason agrees to hold all Confidential Information in absolute trust and confidence, and to protect and safeguard\nagainst the unnecessary dissemination of Confidential Information both inside and outside the Recipient's businesses. Recipient will not disclose or render accessible Confidential Information to Recipient's affiliates unless and until\nconsented to in writing by Arctic Cat. Recipient shall further take all steps necessary and\n2\nsufficient to ensure that Confidential Information is not rendered accessible to individual Representatives that are not directly involved in evaluating the Transaction. Recipient will further ensure that all individuals who are given\naccess to Confidential Information will be specifically identified to Arctic Cat in writing in advance of being provided access to Confidential Information. Upon written notification, Arctic Cat shall have two business days to\nobject to any individual Recipient being provided access to Confidential Information, unless earlier waived in writing by Arctic Cat. In advance of being provided access to Confidential Information, each individual Recipient\nwill (i) be provided a copy of this Agreement and (ii) execute an acknowledgement in the form provided in Addendum A stating they agree to be bound by and will conduct their investigation in accordance with this Agreement\nand agree to comply with all applicable on-site access, remote access and related security rules and procedures of Arctic Cat. Recipient will be responsible for any breach of this Agreement by all those who gain access to\nConfidential Information via Recipient or its Representatives.\n6.\nExcept as required by applicable federal, state or local law or regulation, or as otherwise consented to in writing by Arctic Cat, the Recipient shall not, and shall not permit its Representatives to disclose to any person that: (i) the\nConfidential Information has been made available to Recipient or its Representatives; (ii) that discussions or negotiations may be, or are, underway between the Recipient and Arctic Cat regarding the Confidential Information or a\nTransaction, including the status thereof; or (iii) any terms, conditions or other arrangements that are being discussed or negotiated in relation to the Confidential Information or a Transaction.\n7.\nRecipient acknowledges that none of Arctic Cat or its Representatives makes any express or implied representation or warranty as to the completeness and accuracy of any Confidential Information, and Recipient agrees that no such\npersons shall have any liability to Recipient or any of Recipient's Representatives relating to or arising from Recipient's or such Representatives' use of any Confidential Information or for any errors therein or omissions therefrom.\nRecipient also agrees that Recipient is not entitled to rely on the completeness or accuracy of any Confidential Information and that Recipient shall be entitled to rely solely on such representations and warranties as may be made by\nArctic Cat to Recipient in any definitive agreement relating to a Transaction, subject to the terms and conditions of such agreement. For purposes of this Agreement, a "definitive agreement" does not include an executed letter of\nintent or any other preliminary written agreement, nor does it include any written or oral acceptance of an offer or bid.\n8.\nArctic Cat hereby retains its entire right, title and interest, including all intellectual property rights, in and to all Confidential Information. Any disclosure of such Confidential Information hereunder shall not be construed as an\nassignment, grant, option, license or other transfer of any such right, title or interest.\n9.\nUpon expiration or termination of this Agreement, and upon written demand by Arctic Cat at any time, all Confidential Information, including copies, Notes, photographs, and memoranda, produced or taken by Recipient in\nconnection with evaluating a Transaction, whether in hard copy or electronic format, shall be destroyed or returned to Arctic Cat, unless otherwise authorized in writing by Arctic Cat; provided, however, that one copy may be\nretained for legal files for compliance and regulatory purposes and electronic archives and backups made in the ordinary course of business need not be purged, so long as they are maintained in accordance with the confidentiality\nprovisions of this Agreement. Upon written request, destruction of materials containing Confidential Information shall be certified by an officer of Recipient.\n3\n10.\nNo failure or delay by Arctic Cat in exercising any right, power or privilege hereunder shall operate as a waiver hereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of\nany right, power or privilege hereunder. Recipient agrees that money damages would not be a sufficient remedy for any breach of this Agreement by Recipient or its Representatives, and that in addition to all other remedies Arctic\nCat shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach. Recipient further agrees to waive, and to use its reasonable best efforts to cause its Representatives to waive,\nany requirement for the securing or posting of any bond in connection with such remedy.\n11.\nRecipient agrees to promptly notify Arctic Cat of any unauthorized disclosure of Confidential Information or other breaches of this Agreement by Recipient or its Representatives of which Recipient or its Representatives have\nknowledge and to fully cooperate with Arctic Cat in any effort undertaken by Arctic Cat to enforce its rights related to such unauthorized disclosure.\n12.\nNo party to this Agreement shall be under any obligation to enter into any further agreements with the other party or its Representatives as a result of this Agreement. Arctic Cat and its Representatives shall be free at all times to\nconduct their business, operations and affairs in their sole discretion and to enter into any agreements with any other party, including with the respect to a Transaction. Any such activities by Arctic Cat or its Representatives shall not\nbe a breach of this Agreement.\n13.\nWithout the written consent of Arctic Cat, Recipient and its Representatives shall not, during the term of this Agreement and for a period of eighteen months from expiration or termination of this Agreement, solicit for employment\nany persons who are employees of Arctic Cat or any of its affiliates as of the date of this Agreement or at the time this Agreement expires or is terminated. Nothing contained herein shall preclude the hiring of any such employee\nwho: (i) Recipient was in discussions with regarding possible employment prior to the signing of this Agreement; (ii) responds to a general solicitation of employment through an advertisement not targeted specifically at Arctic Cat or\nits employees; or (iii) is referred to Recipient by search firms, employment agencies, or other similar entities, provided that such entities have not been specifically instructed by Recipient to solicit the employees of Arctic Cat.\n14.\nIn consideration of the Confidential Information being furnished to Recipient, Recipient hereby agrees that, during the term of this Agreement and for a period of eighteen months following the expiration or termination of this\nAgreement (the "Standstill Period") , neither Recipient nor Recipient's directors, officers, employees or subsidiaries, nor any "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the\n"Exchange Act")) of which Recipient or any of its directors, officers, employees or subsidiaries is a party, will assist or encourage others (including by providing financing) to, directly or indirectly, without the prior written consent\nor request of the Board of Directors of Arctic Cat or an authorized Special Committee of such Board, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets\nof Arctic Cat or any of its subsidiaries, any warrant or option to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities or assets (other than purchases of\nproducts in the ordinary course of business), (ii) enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, material asset purchase, business combination, recapitalization, restructuring or other extraordinary\ntransaction involving Arctic Cat or engage in or participate in any way in any transaction regarding control of Arctic Cat, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote or seek to advise or\ninfluence any person with respect to the voting of, any voting securities of Arctic Cat, in opposition to the slate of directors nominated\n4\nby Arctic Cat or any other item of business recommended by Arctic Cat's Board of Directors to be voted on at any meeting of Arctic Cat's shareholders, (iv) form, join or in any way participate in a "group" (within the meaning\nof Section 13(d)(3) of the Exchange Act) with respect to any voting securities of Arctic Cat, (v) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the shareholders of Arctic Cat,\n(vi) nominate a competing slate of directors at any meeting of the Company's shareholders, (vii) otherwise act, alone or in concert with others, to seek to control or influence the management or policies of Arctic Cat,\n(viii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing, or (ix) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other\npersons in connection with the foregoing.\nRecipient further agrees that during the Standstill Period, neither it nor any of its Representatives will, directly or indirectly, without the prior written consent of the Board of Directors of Arctic Cat or an authorized Special\nCommittee of such Board, (x) make any request directly or indirectly, to amend or waive any provision of this Section 14 (including this sentence), or (y) take any action not requested by Arctic Cat that might require Arctic Cat\nto make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. Notwithstanding the foregoing, the preceding restrictions of this section shall\nterminate in the event that another person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) (a) shall have entered into a definitive agreement with Arctic Cat to acquire a controlling interest in Arctic Cat\nor all or substantially all of its assets or (b) has launched or publicly stated its intention to launch a tender or exchange offer for a majority of Arctic Cat's capital stock and Arctic Cat files a Schedule 14D-9 with respect to such\noffer that recommends acceptance of such tender or exchange offer.\n15.\nRecipient hereby acknowledges that it is aware, and that it will advise its Representatives who receive any Confidential Information, that the United States securities laws prohibit any person who has received from an issuer material,\nnonpublic information from purchasing or selling securities of such issuer (and options, warrants and rights relating thereto) or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities.\n16.\nRecipient agrees to defend, indemnify and hold harmless Arctic Cat, its affiliates and their respective Representatives, successors and permitted assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments,\ninterest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees, in connection with any third party claim, suit, action or proceeding arising out of or resulting from a material breach of this\nAgreement by Recipient or any of its Representatives.\n17.\nThis Agreement shall be governed by the laws of the State of Minnesota. Arctic Cat reserves the right to assign all of its rights under this Agreement to any of its affiliates or to a successor in interest to the business of Arctic Cat,\nincluding the right to enforce this Agreement. Recipient hereby consents to any such assignment. Recipient shall not assign any of its rights or delegate any of its obligations hereunder without Arctic Cat's prior written consent. Any\npurported assignment or delegation by Recipient shall be null and void.\n18.\nThe term of this Agreement shall commence on the Effective Date and shall expire one year from the Effective Date, provided that either Party may terminate this Agreement at any time by providing written notice to the other Party.\nIn addition, Recipient agrees to promptly inform Arctic Cat if Recipient determines not to proceed with a Transaction. Notwithstanding anything to the contrary herein, each Party's rights and obligations under this Agreement shall\n5\nsurvive the expiration or termination of this Agreement for a period of three years from the date of such expiration or termination, even after the return or destruction of Confidential Information by Recipient (the "Survival\nPeriod"), provided the provisions of Sections 13 and 14 of this Agreement shall expire as provided in such Sections, and provided further that, with respect to the trade secrets of Arctic Cat, the Survival Period shall last for as\nlong as such Confidential Information qualifies as a trade secret under applicable federal, state or local law, and with respect to Personal Information disclosed by Arctic Cat, the Survival Period shall last for the period of time\nrequired under applicable federal state and/or local law.\n19.\nAll notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered and received by hand; (ii) when received by the addressee\nif sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or electronic transmission if sent during normal business hours of the recipient of the communication; or (d) on the third\ncalendar day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the signature page hereto (or such\nother addresses as designated from time to time in accordance with this section).\n20.\nThis Agreement contains the entire agreement between Arctic Cat and Recipient concerning the subject matter hereof, and no provision of this Agreement may be waived, amended or modified, in whole or in part, nor any consent\ngiven, unless approved in writing by a duly authorized Representative of each of Arctic Cat and Recipient, which writing specifically refers to this Agreement and the provision so amended or modified or for which such waiver or\nconsent is given. In the event that any provision of this Agreement is deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or\nimpaired thereby.\n21.\nIf any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render\nunenforceable such term or provision in any other jurisdiction.\n22.\nThis Agreement may be executed in one or more counterparts (including by means of facsimile or electronically transmitted portable document format (PDF) signature pages), each of which shall be deemed to be an original, but all\nof which together shall constitute and be one and the same instrument.\nUpon execution hereof by both Arctic Cat and Recipient, this Agreement shall become a binding agreement between Arctic Cat and Recipient.\n[Signature Page Follows]\n6\nIN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the Effective Date.\nARCTIC CAT INC.\nTEXTRON INC.\nBy:\n/s/ CHRISTOPHER T. METZ\nBy:\n/s/ SCOTT HEGSTROM\nName: Christopher T. Metz\nName: Scott Hegstrom\nTitle: President and Chief Executive Officer\nTitle: Vice President, Mergers & Acquisitions\nAddress: 500 North 3d Street,\nMinneapolis, MN 55401\nAddress: 40 Westminster Street,\nProvidence, RI 02903\nTelephone: 612-305 -1802\nTelephone: 401-457 -2386\nFax:\nFax:\n401-457 -3611\n[Signature Page to Confidentiality Agreement]\nQuickLinks\nEXHIBIT (d)(2)\nCONFIDENTIALITY AGREEMENT
+dce7dc12b15c343afffb7620cbdba71e.pdf	effective_date jurisdiction party	Exhibit 10.1\nSEPARATION AND CONFIDENTIALITY AGREEMENT AND GENERAL RELEASE\nTHIS SEPARATION AND CONFIDENTIALITY AGREEMENT AND GENERAL RELEASE (“Agreement”), dated April 18,\n2007, is made between The Cato Corporation (“Cato”) and Reynolds C. Faulkner, his heirs, executors, administrators, successors,\nand assigns (“Faulkner”). (Cato and Faulkner are referred to as “Parties”). This Agreement shall be effective on the date Faulkner and\nCato sign, subject to the revocation rights set forth below.\nWHEREAS, Faulkner previously was employed by Cato as its Executive Vice-President and Chief Financial Officer under a letter\nagreement dated March 6, 2006 (“Employment Agreement”);\nWHEREAS, upon being told by Cato that he would be terminated without cause and given the option to do so, Faulkner resigned\nrather than be terminated without cause, with such resignation effective October 30, 2006;\nWHEREAS, the Parties wish to settle and resolve all possible controversies between them amicably and expeditiously;\nNOW THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the\nreceipt and sufficiency of which is hereby acknowledged by Faulkner, the Parties agree as follows:\n1. Last Day of Employment. Faulkner’s last day of active employment with Cato was October 30, 2006. Faulkner is not eligible\nto participate in Cato’s 401(k) Retirement and Savings Plan or any other Cato-sponsored employee benefit plan after October 30,\n2006, except as set forth below.\n2. Consideration. In consideration for signing this Agreement, Cato will do the following:\n(a)\nPay to Faulkner on the next business day after the Revocation Period described in Paragraph 15, in a lump sum, $750,000, less\n(i) $29,196.12 already paid in November 2006, or $720,803.88, and (ii) less $3,357.86 as described in Section 2(b) below. Of\nthe $720,803.88 lump sum amount, $583,303.88 shall be deemed to be compensation in settlement of any wage, bonus, stock,\nseverance, or employment claims and will be subject to withholding for Federal and North Carolina income tax purposes and\nfor which Faulkner will be issued a Form W-2 for the year 2007 at the time provided for under existing governmental\nregulations. For the balance of the lump sum amount, or $137,500 paid in settlement of other claims, including in tort or any\nother basis, that Faulkner releases herein, Faulkner will be issued a Form 1099 for the year 2007 with respect thereto at the\ntime provided for under existing governmental regulations.\n(b)\nContinue Faulkner’s health insurance coverage (on the same basis and at the same level it is provided to current Cato\nassociates) from October 31, 2006 through October 31, 2007 or until Faulkner becomes eligible for another employer’s group\nhealth insurance benefits, whichever occurs first. Faulkner’s share of the health insurance premiums will be $3,357.86 .\nFaulkner agrees that this $3,357.86 amount will be withheld by Cato from the $720,803.88 lump sum payment above. From\nthe $3,357.86 amount, Cato will deduct any amounts needed to pay prior months of coverage, and going forward, Cato will\ndeduct $306.07 each month for Faulkner’s share of the health insurance premiums. In the event Faulkner becomes eligible for\nanother employer’s group health insurance benefits before October 31, 2007, Faulkner will notify Cato and Cato will pay to\nFaulkner any amount of the $3,357.86 that has not already been applied to Faulkner’s monthly share of the health insurance\npremiums.\n(c)\nFaulkner may convert the existing group life insurance coverage to an individual plan upon request to Cato’s Director of\nBenefits and Cato will provide the necessary paperwork and information upon Faulkner’s request.\n(d)\nAs of November 1, 2007, Faulkner will be eligible to continue group health and major medical coverage pursuant to the\nConsolidated Omnibus and Reform Act (COBRA), at the applicable COBRA rate for his coverage (excluding Life Insurance,\nShort Term Disability and Long Term Disability coverage), provided that Faulkner pays his monthly COBRA charges on or\nbefore the first day of each month of continuing coverage. Faulkner will be responsible for premium increases should any\noccur. Unless Faulkner informs Cato that he has become eligible for another employer’s group health insurance benefits\nbefore October 31, 2007, Cato’s Human Resources Department will send information to Faulkner for such continuation\nelection prior to October 31, 2007.\n3. General Release of All Claims. In consideration of the provisions of this Agreement running to Faulkner’s benefit, Faulkner\nknowingly and voluntarily releases and forever discharges Cato, its affiliates, subsidiaries, divisions, predecessors, insurers, benefit\nplans, successors, and assigns as well as their current and former employees, attorneys, officers, directors, and agents thereof, both\nindividually and in their official capacities (collectively, the “Cato Affiliates”), of and from any and all claims, known and unknown,\nasserted or unasserted, which Faulkner has or may have against Cato or the Cato Affiliates as of the effective date of this Agreement,\nincluding, but not limited to, any alleged violation of:\n•\nTitle VII of the Civil Rights Act of 1964;\n•\nSections 1981 through 1988 of Title 42 of the United States Code;\n•\nThe Employee Retirement Income Security Act of 1974 (except for any vested benefits under any tax qualified benefit plan);\n•\nThe Immigration Reform and Control Act;\n•\nThe Americans with Disabilities Act of 1990;\n•\nThe Age Discrimination in Employment Act of 1967;\n2\n•\nThe Workers Adjustment and Retraining Notification Act;\n•\nThe Fair Credit Reporting Act;\n•\nThe Sarbanes-Oxley Act of 2002;\n•\nAll North Carolina statutes, laws, and regulations;\n•\nAny other federal, state, or local law, rule, regulation, or ordinance;\n•\nAny public policy, contract, tort, or common law; or\n•\nAny basis for recovering costs, fees, or other expenses including attorneys’ fees incurred in any such matters.\n4. Covenant Not to Sue. Faulkner agrees that he will never institute a claim released above in Paragraph 3 against Cato or the\nCato Affiliates. If Faulkner violates this agreement by suing Cato or any of the Cato Affiliates for any claims released herein,\nFaulkner agrees that he will pay all costs and expenses of defending any such suit incurred by Cato or any of the Cato Affiliates,\nincluding reasonable attorneys’ fees.\n5. Affirmations. Faulkner makes the following affirmations:\n(a)\nHe has not filed, nor caused to be filed, nor is he presently a party to, any claim against Cato or any Cato Affiliate that (i) is\nnot being released by this instrument, and (ii) if filed, has not been withdrawn or dismissed.\n(b)\nHe has been paid for and/or has received all leaves (paid or unpaid), compensation, wages, bonuses, stock awards,\ncommissions, and/or benefits to which he may be entitled other than those provided to be paid under the terms of this\nAgreement.\n(c) He has no known workplace injuries or occupational diseases.\n(d) He will not apply in the future for employment, or accept employment, with Cato or any of its subsidiaries.\n6. Confidentiality and Return of Property. (a) Faulkner agrees not to disclose any information regarding the existence or\nsubstance of this Agreement, except to his immediate family, tax and financial advisor, and/or an attorney with whom Faulkner\nchooses to consult regarding his consideration of this Agreement. Furthermore, to the extent Faulkner is permitted to disclose and\ndoes disclose such information, Faulkner agrees to require, and he warrants, that the person receiving such information will maintain\nits confidentiality. Faulkner warrants and represents that from March 2, 2007 through his execution of this Agreement, he has not\nbreached the confidentiality provisions of this Agreement.\n(b)\nFaulkner acknowledges the highly competitive nature of Cato’s business and affirms that he has not divulged, and will not\ndivulge, to anyone outside of Cato\n3\nany proprietary or confidential information of Cato. “Confidential Information” means any information (i) which is, or is\ndesigned to be or may be used in Cato’s business, (ii) which is private or confidential in that it is not generally known or\navailable to the public, and (iii) which gives or may give Cato an opportunity to obtain an advantage over competitors or\npossible competitors, or which, if obtained by a competitor or possible competitor, would give or may give that competitor or\npossible competitor an advantage over Cato that a competitor may not otherwise have. Faulkner further acknowledges and\naffirms that he has not divulged, and will not divulge, to anyone outside of Cato any non-public information about Cato’s\ncompany performance, future plans, or performance of Cato Affiliates, whether “Confidential Information” or not, that\nFaulkner learned in the course of and because of his employment with Cato. Faulkner also acknowledges that he will not\ndivulge to anyone outside of Cato any non-public information about Cato’s internal business practices, whether “Confidential\nInformation” or not, that Faulkner learned in the course of and because of his employment with Cato. Provided, however, that\nFaulkner shall be entitled, subject to Paragraph 7 below, to respond to questions by a prospective employer with respect to his\nbusiness relationship as Chief Financial Officer with John Cato as Chief Executive Officer that led to Faulkner’s resignation\nfrom the company.\n(c)\nAt Cato’s reasonable advance request, and at mutually convenient times, Faulkner will make himself available to answer\nfactual questions or provide factual information on subjects related to business matters of Cato of which he has knowledge\narising from his former employment with Cato. In any legal proceeding to which he is not a party, his sworn testimony,\nincluding testimony in discovery, shall, however, be procured by subpoena.\n(d)\nThe Parties agree that nothing in this Paragraph is intended to limit or prohibit, or shall be construed as limiting or prohibiting,\neither Party from providing information in response to a lawfully issued subpoena or otherwise complying with any legal\nrequirement, or from participating in any investigation if requested to do so by a federal, state or local agency. The Parties\nfurther agree that the existence and substance of this Agreement may be disclosed in order to enforce its terms.\n(e)\nFaulkner affirms that he has returned all of Cato’s property, documents, and/or any confidential information in whatever form,\nand any duplicates thereof, in his possession or control. Faulkner also affirms that he is in possession of all of his property and\nthat Cato is not in possession of any of his property.\n7. Non-Disparagement. Faulkner and Cato agree that Faulkner and Cato’s Senior Executives (President, Executive Vice\nPresidents, Senior Vice Presidents, and Assistant to the President) will refrain from making negative, disparaging, defamatory or\nslanderous comments, references, criticism or characterizations concerning Faulkner, Cato, or the Cato Affiliates, either verbally, in\nwriting, or in any other manner, to any third party for any purpose whatsoever, unless a legal duty to do so is imposed. Faulkner\nfurther agrees not to make any other statement, written or oral (including but not limited to any media source or to any other party),\nthat would\n4\ndisrupt, impair or affect adversely the reputation, business interests, or profitability of Cato or any of the Cato Affiliates, unless a\nlegal duty to do so is imposed.\n8. Neutral Reference. In the event that any outside entities seek input from Cato for purposes of hiring Faulkner, Cato will\nprovide a neutral reference limited to his dates of employment, position, and annual salary.\n9. No Solicitation. Faulkner agrees that for a period of one year from the effective date of his resignation, he will not solicit any\nCato employee to leave Cato’s employment, initiate such a solicitation by a third party, allow himself to be listed as a reference by a\nCato employee, or hire or recommend for hire by any entity by whom he is employed anyone employed by Cato.\n10. Governing Law and Interpretation. This Agreement shall be governed and conformed in accordance with the laws of the\nState of North Carolina without regard to its conflict of laws provisions. In the event of a breach of any provision of this Agreement,\neither Party may institute an action specifically to enforce any term or terms of this Agreement and/or seek any damages for breach.\nShould any provision of this Agreement be declared illegal or unenforceable by any court of competent jurisdiction, and should such\nprovision be unable to be modified to be enforceable, excluding the general release language, such provision shall immediately\nbecome null and void, leaving the remainder of this Agreement in full force and effect.\n11. No Wrongdoing. The Parties agree that neither this Agreement nor the furnishing of the consideration for this Agreement\nshall be deemed or construed at any time for any purpose as an admission by Cato of wrongdoing or evidence of any liability or\nunlawful conduct of any kind.\n12. Amendment. This Agreement may not be modified, altered, or changed except in writing and signed by both Parties.\n13. Notices. Any delivery of funds or notices required under this Agreement shall be served upon the Parties via hand delivery,\ncertified mail, or overnight priority mail through a commercial third-party carrier (such as UPS or FedEx) as follows:\nNotices to Cato:\nRobert C. Brummer\nSenior Vice President\nThe Cato Corporation\n8100 Denmark Road\nCharlotte, NC 28273\nNotices to Faulkner:\nReynolds C. Faulkner\nC/O E. Osborne Ayscue, Jr.\nHelms Mullis & Wicker\n201 North Tryon Street\nCharlotte, North Carolina 28202\n5\n14. Entire Agreement. This Agreement sets forth the entire agreement between the Parties and replaces any prior agreements or\nunderstandings between the Parties, including without limitation the Employment Agreement. Faulkner acknowledges that he has not\nrelied on any representations, promises, or agreements of any kind made to him in connection with his decision to accept this\nAgreement, except for those set forth in this Agreement.\n15. ADEA Waiver and Acknowledgement. Faulkner acknowledges that he knowingly and voluntarily waives any rights he has\nunder the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C . 621 et seq., except those that may arise under the ADEA\nafter the date this Agreement is executed. Faulkner further acknowledges that the consideration he is receiving under this Agreement\nis in addition to anything of value to which Faulkner already is entitled. Faulkner acknowledges that he may, if desired, have a period\nof twenty-one (21) calendar days to consider this Agreement, including its reference to the ADEA contained here and in Paragraph 3\n(the “Consideration Period”). In addition, Faulkner may revoke this Agreement within a period of seven (7) calendar days following\nits execution (the “Revocation Period”). If Faulkner does not revoke the Agreement and Release during the Revocation Period, it will\nbecome fully effective upon expiration of the Revocation Period. Faulkner acknowledges that he has been advised by Cato that he\ncan and should consult with an attorney.\nFAULKNER AND CATO FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTER INTO THIS\nAGREEMENT INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS THEY HAVE OR MIGHT HAVE\nAGAINST ONE ANOTHER.\nThe Parties knowingly and voluntarily sign this Agreement as of the date(s) set forth below:\nREYNOLDS C. FAULKNER\nTHE CATO CORPORATION, a\nDelaware corporation\nBy: /s/ Reynolds C. Faulkner\nBy: /s/ Robert C. Brummer\nReynolds C. Faulkner\nRobert C. Brummer\nSenior Vice President\nDate: April 18, 2007\nDate: April 18, 2007\n6	Exhibit 10.1\nSEPARATION AND CONFIDENTIALITY AGREEMENT AND GENERAL RELEASE\nTHIS SEPARATION AND CONFIDENTIALITY AGREEMENT AND GENERAL RELEASE (”Agreement”), dated April 18,\n2007, is made between The Cato Corporation (”Cato”) and Reynolds C. Faulkner, his heirs, executors, administrators, successors,\nand assigns (”Faulkner”). (Cato and Faulkner are referred to as ”Parties"). This Agreement shall be effective on the date Faulkner and\nCato sign, subject to the revocation rights set forth below.\nWHEREA S, Faulkner previously was employed by Cato as its Executive Vice- President and Chief Financial Officer under a letter\nagreement dated March 6, 2006 (”Employment A greement”) ;\nWHEREAS, upon being told by Cato that he would be terminated without cause and given the option to do so, Faulkner resigned\nrather than be terminated without cause, with such resignation effective October 30, 2006;\nWHE REA S, the Parties wish to settle and resolve all possible controversies between them amicably and expeditiously;\nNOW THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the\nreceipt and sufficiency of which is hereby acknowledged by Faulkner, the Parties agree as follows:\n1. Last Day of Employment. Faulkner’ s last day of active employment with Cato was October 30, 2006. Faulkner is not eligible\nto participate in Cato’s 401(k) Retirement and Savings Plan or any other Cato-sponsored employee benefit plan after October 30,\n2006, except as set forth below.\n2. Consideration. In consideration for signing this A greement, Cato will do the following:\nPay to Faulkner on the next business day after the Revocation Period described in Paragraph 15, in a lump sum, $750,000, less\n(i) $29,196.12 already paid in November 2006, or $720,803.88, and (ii) less $3,357.86 as described in Section 2(b) below. Of\nthe $720,803.88 lump sum amount, $583,303.88 shall be deemed to be compensation in settlement of any wage, bonus, stock,\nseverance, or employment claims and will be subject to withholding for Federal and North Carolina income tax purposes and\nfor which Faulkner will be issued a Form W-2 for the year 2007 at the time provided for under existing governmental\nregulations. For the balance of the lump sum amount, or $137,500 paid in settlement of other claims, including in tort or any\nother basis, that Faulkner releases herein, Faulkner will be issued a Form 1099 for the year 2007 with respect thereto at the\ntime provided for under existing governmental regulations.\nContinue Faulkner’s health insurance coverage (on the same basis and at the same level it is provided to current Cato\nassociates) from October 31, 2006 through October 31, 2007 or until Faulkner becomes eligible for another employer’s group\nhealth insurance benefits, whichever occurs first. Faulkner’s share of the health insurance premiums will be $3,357.86.\nFaulkner agrees that this $3,357.86 amount will be withheld by Cato from the $720,803.88 lump sum payment above. From\nthe $3,357.86 amount, Cato will deduct any amounts needed to pay prior months of coverage, and going forward, Cato will\ndeduct $306.07 each month for Faulkner’s share of the health insurance premiums. In the event Faulkner becomes eligible for\nanother employer’ s group health insurance benefits before October 31, 2007, Faulkner will notify Cato and Cato will pay to\nFaulkner any amount of the $3,357.86 that has not already been applied to Faulkner’s monthly share of the health insurance\npremiums.\nFaulkner may convert the existing group life insurance coverage to an individual plan upon request to Cato’s Director of\nBenefits and Cato will provide the necessary paperwork and information upon Faulkner’s request.\nAs of November 1, 2007, Faulkner will be eligible to continue group health and major medical coverage pursuant to the\nConsolidated Omnibus and Reform Act (COBRA), at the applicable COBRA rate for his coverage (excluding Life Insurance,\nShort Term Disability and Long Term Disability coverage), provided that Faulkner pays his monthly COBRA charges on or\n(d) before the first day of each month of continuing coverage. Faulkner will be responsible for premium increases should any\noccur. Unless Faulkner informs Cato that he has become eligible for another employer’s group health insurance benefits\nbefore October 31, 2007, Cato’s Human Resources Department will send information to Faulkner for such continuation\nelection prior to October 31, 2007.\n3. G eneral Release of All Claims. In consideration of the provisions of this Agreement running to Faulkner’ s benefit, Faulkner\nknowingly and voluntarily releases and forever discharges Cato, its affiliates, subsidiaries, divisions, predecessors, insurers, benefit\nplans, successors, and assigns as well as their current and former employees, attorneys, officers, directors, and agents thereof, both\nindividually and in their official capacities (collectively, the ”Cato Affiliates”), of and from any and all claims, known and unknown,\nasserted or unasserted, which Faulkner has or may have against Cato or the Cato Affiliates as of the effective date of this Agreement,\nincluding, but not limited to, any alleged violation of:\n0 Title VII of the Civil Rights Act of 1964;\n0 Sections 1981 through 1988 of Title 42 of the United States Code;\n0 The Employee Retirement Income Security A ct of 1974 (except for any vested benefits under any tax qualified benefit plan);\n0 The Immigration Reform and Control Act;\n0 The Americans with Disabilities Act of 1990;\n0 The Age Discrimination in Employment Act of 1967;\n0 The Workers Adjustment and Retraining Notification Act;\n0 The Fair Credit Reporting Act;\n0 The Sarbanes-Oxley Act of 2002;\n0 All North Carolina statutes, laws, and regulations;\n0 Any other federal, state, or local law, rule, regulation, or ordinance;\n0 Any public policy, contract, tort, or common law; or\n0 Any basis for recovering costs, fees, or other expenses including attorneys’ fees incurred in any such matters.\n4. Covenant Not to Sue. Faulkner agrees that he will never institute a claim released above in Paragraph 3 against Cato or the\nCato Affiliates. If Faulkner violates this agreement by suing Cato or any of the Cato Affiliates for any claims released herein,\nFaulkner agrees that he will pay all costs and expenses of defending any such suit incurred by Cato or any of the Cato Affiliates,\nincluding reasonable attorneys’ fees.\n5. Affirmations. Faulkner makes the following affirmations:\n(a) He has not filed, nor caused to be filed, nor is he presently a party to, any claim against Cato or any Cato Affiliate that (i) is\nnot being released by this instrument, and (ii) if filed, has not been withdrawn or dismissed.\nHe has been paid for and/or has received all leaves (paid or unpaid), compensation, wages, bonuses, stock awards,\n(b) commissions, and/or benefits to which he may be entitled other than those provided to be paid under the terms of this\nAgreement.\n(c) He has no known workplace injuries or occupational diseases.\n(d) He will not apply in the future for employment, or accept employment, with Cato or any of its subsidiaries.\n6. Confidentiality and Return of Property. (a) Faulkner agrees not to disclose any information regarding the existence or\nsubstance of this Agreement, except to his immediate family, tax and financial advisor, and/or an attorney with whom Faulkner\nchooses to consult regarding his consideration of this Agreement. Furthermore, to the extent Faulkner is permitted to disclose and\ndoes disclose such information, Faulkner agrees to require, and he warrants, that the person receiving such information will maintain\nits confidentiality. Faulkner warrants and represents that from March 2, 2007 through his execution of this Agreement, he has not\nbreached the confidentiality provisions of this Agreement.\nFaulkner acknowledges the highly competitive nature of Cato’s business and affirms that he has not divulged, and will not\ndivulge, to anyone outside of Cato\nany proprietary or confidential information of Cato. ”Confidential Information” means any information (i) which is, or is\ndesigned to be or may be used in Cato’s business, (ii) which is private or confidential in that it is not generally known or\navailable to the public, and (iii) which gives or may give Cato an opportunity to obtain an advantage over competitors or\npossible competitors, or which, if obtained by a competitor or possible competitor, would give or may give that competitor or\npossible competitor an advantage over Cato that a competitor may not otherwise have. Faulkner further acknowledges and\naffirms that he has not divulged, and will not divulge, to anyone outside of Cato any non-public information about Cato's\ncompany performance, future plans, or performance of Cato Affiliates, whether ”Confidential Information” or not, that\nFaulkner learned in the course of and because of his employment with Cato. Faulkner also acknowledges that he will not\ndivulge to anyone outside of Cato any non-public information about Cato’s internal business practices, whether ”Confidential\nInformation” or not, that Faulkner learned in the course of and because of his employment with Cato. Provided, however, that\nFaulkner shall be entitled, subject to Paragraph 7 below, to respond to questions by a prospective employer with respect to his\nbusiness relationship as Chief Financial Officer with John Cato as Chief Executive Officer that led to Faulkner’ s resignation\nfrom the company.\nAt Cato’s reasonable advance request, and at mutually convenient times, Faulkner will make himself available to answer\nfactual questions or provide factual information on subjects related to business matters of Cato of which he has knowledge\narising from his former employment with Cato. In any legal proceeding to which he is not a party, his sworn testimony,\nincluding testimony in discovery, shall, however, be procured by subpoena.\nThe Parties agree that nothing in this Paragraph is intended to limit or prohibit, or shall be construed as limiting or prohibiting,\neither Party from providing information in response to a lawfully issued subpoena or otherwise complying with any legal\nrequirement, or from participating in any investigation if requested to do so by a federal, state or local agency. The Parties\nfurther agree that the existence and substance of this Agreement may be disclosed in order to enforce its terms.\nFaulkner affirms that he has returned all of Cato’ s property, documents, and/or any confidential information in whatever form,\n(e) and any duplicates thereof, in his possession or control. Faulkner also affirms that he is in possession of all of his property and\nthat Cato is not in possession of any of his property.\n7. Non-Disparagement. Faulkner and Cato agree that Faulkner and Cato’s Senior Executives (President, Executive Vice\nPresidents, Senior Vice Presidents, and Assistant to the President) will refrain from making negative, disparaging, defamatory or\nslanderous comments, references, criticism or characterizations concerning Faulkner, Cato, or the Cato Affiliates, either verbally, in\nwriting, or in any other manner, to any third party for any purpose whatsoever, unless a legal duty to do so is imposed. Faulkner\nfurther agrees not to make any other statement, written or oral (including but not limited to any media source or to any other party),\nthat would\ndisrupt, impair or affect adversely the reputation, business interests, or profitability of Cato or any of the Cato Affiliates, unless a\nlegal duty to do so is imposed.\n8. Neutral Reference. In the event that any outside entities seek input from Cato for purposes of hiring Faulkner, Cato will\nprovide a neutral reference limited to his dates of employment, position, and annual salary.\n9. N0 Solicitation. Faulkner agrees that for a period of one year from the effective date of his resignation, he will not solicit any\nCato employee to leave Cato’s employment, initiate such a solicitation by a third party, allow himself to be listed as a reference by a\nCato employee, or hire or recommend for hire by any entity by whom he is employed anyone employed by Cato.\n10. Governing Law and Interpretation. This Agreement shall be governed and conformed in accordance with the laws of the\nState of North Carolina without regard to its conflict of laws provisions. In the event of a breach of any provision of this Agreement,\neither Party may institute an action specifically to enforce any term or terms of this Agreement and/or seek any damages for breach.\nShould any provision of this Agreement be declared illegal or unenforceable by any court of competent jurisdiction, and should such\nprovision be unable to be modified to be enforceable, excluding the general release language, such provision shall immediately\nbecome null and void, leaving the remainder of this Agreement in full force and effect.\n11. N0 Wrongdoing. The Parties agree that neither this Agreement nor the furnishing of the consideration for this Agreement\nshall be deemed or construed at any time for any purpose as an admission by Cato of wrongdoing or evidence of any liability or\nunlawful conduct of any kind.\n12. Amendment. This Agreement may not be modified, altered, or changed except in writing and signed by both Parties.\n13. Notices. Any delivery of funds or notices required under this Agreement shall be served upon the Parties via hand delivery,\ncertified mail, or overnight priority mail through a commercial third-party carrier (such as UPS or FedEx) as follows:\nNotices to Cato: Robert C. Brummer\nSenior Vice President\nThe Cato Corporation\n8100 Denmark Road\nCharlotte, NC 28273\nNotices to Faulkner: Reynolds C. Faulkner\nC/O E. Osborne Ayscue, Jr.\nHelms Mullis & Wicker\n201 North Tryon Street\nCharlotte, North Carolina 28202\n5\n14. Entire Agreement. This Agreement sets forth the entire agreement between the Parties and replaces any prior agreements or\nunderstandings between the Parties, including without limitation the Employment Agreement. Faulkner acknowledges that he has not\nrelied on any representations, promises, or agreements of any kind made to him in connection with his decision to accept this\nAgreement, except for those set forth in this Agreement.\n15. ADEA Waiver and Acknowledgement. Faulkner acknowledges that he knowingly and voluntarily waives any rights he has\nunder the Age Discrimination in Employment Act (”ADEA”), 29 U.S.C. 621 et seq., except those that may arise under the ADEA\nafter the date this Agreement is executed. Faulkner further acknowledges that the consideration he is receiving under this Agreement\nis in addition to anything of value to which Faulkner already is entitled. Faulkner acknowledges that he may, if desired, have a period\nof twenty-one (21) calendar days to consider this Agreement, including its reference to the A DEA contained here and in Paragraph 3\n(the ”Consideration Period"). In addition, Faulkner may revoke this Agreement within a period of seven (7) calendar days following\nits execution (the ”Revocation Period"). If Faulkner does not revoke the Agreement and Release during the Revocation Period, it will\nbecome fully effective upon expiration of the Revocation Period. Faulkner acknowledges that he has been advised by Cato that he\ncan and should consult with an attorney.\nFAULKNER AND CATO FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTER INTO THIS\nAGREEMENT INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS THEY HAVE OR MIGHT HAVE\nAGAINST ONE ANOTHER.\nThe Parties knowingly and voluntarily sign this Agreement as of the date(s) set forth below:\nREYNOLDS C.FAULKNER THE CATO CORPORATION, a\nDelaware corporation\nBy: /s/ Reynolds C. Faulkner By: /s/ Robert C. Brummer\nReynolds C. Faulkner Robert C. Brummer\nSenior Vice President\nDate: April 18, 2007 Date: April 18, 2007	Exhibit 10.1\nSEPARATION AND CONFIDENTIALITY AGREEMENT AND GENERAL RELEASE\nTHIS SEPARATION AND CONFIDENTIALITY AGREEMENT AND GENERAL RELEASE ("Agreement"), dated April 18,\n2007, is made between The Cato Corporation ("Cato") and Reynolds C. Faulkner, his heirs, executors, administrators, successors,\nand assigns ("Faulkner"). (Cato and Faulkner are referred to as "Parties"). This A greement shall be effective on the date Faulkner and\nCato sign, subject to the revocation rights set forth below.\nWHEREAS, Faulkner previously was employed by Cato as its Executive Vice-President and Chief Financial Officer under a letter\nagreement dated March 6, 2006 ("Employment A greement");\nWHEREAS, upon being told by Cato that he would be terminated without cause and given the option to do so, Faulkner resigned\nrather than be terminated without cause, with such resignation effective October 30, 2006;\nWHEREAS, the Parties wish to settle and resolve all possible controversies between them amicably and expeditiously;\nNOW THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the\nreceipt and sufficiency of which is hereby acknowledged by Faulkner, the Parties agree as follows:\n1. Last Day of Employment. Faulkner's last day of active employment with Cato was October 30, 2006. Faulkner is not eligible\nto participate in Cato's 401(k) Retirement and Savings Plan or any other Cato-sponsored employee benefit plan after October 30,\n2006, except as set forth below.\n2. Consideration. In consideration for signing this A greement, Cato will do the following:\nPay to Faulkner on the next business day after the Revocation Period described in Paragraph 15, in a lump sum, $750,000, less\n(i) $29,196.12 already paid in November 2006, or $720,803.88, and (ii) less $3,357.86 as described in Section 2(b) below. Of\nthe $720,803.88 lump sum amount, $583,303.88 shall be deemed to be compensation in settlement of any wage, bonus, stock,\n(a)\nseverance, or employment claims and will be subject to withholding for Federal and North Carolina income tax purposes and\nfor which Faulkner will be issued a Form W-2 for the year 2007 at the time provided for under existing govermental\nregulations. For the balance of the lump sum amount, or $137,500 paid in settlement of other claims, including in tort or any\nother basis, that Faulkner releases herein, Faulkner will be issued a Form 1099 for the year 2007 with respect thereto at the\ntime provided for under existing governmental regulations.\n(b)\nContinue Faulkner's health insurance coverage (on the same basis and at the same level it is provided to current Cato\nassociates) from October 31, 2006 through October 31, 2007 or until Faulkner becomes eligible for another employer's group\nhealth insurance benefits, whichever ocCUrS first. Faulkner's share of the health insurance premiums will be $3,357.86.\nFaulkner agrees that this $3,357.86 amount will be withheld by Cato from the $720,803.88 lump sum payment above. From\nthe $3,357.86 amount, Cato will deduct any amounts needed to pay prior months of coverage, and going forward, Cato will\ndeduct $306.07 each month for Faulkner's share of the health insurance premiums. In the event Faulkner becomes eligible for\nanother employer's group health insurance benefits before October 31, 2007, Faulkner will notify Cato and Cato will pay to\nFaulkner any amount of the $3,357.86 that has not already been applied to Faulkner's monthly share of the health insurance\npremiums.\n(c)\nFaulkner may convert the existing group life insurance coverage to an individual plan upon request to Cato's Director of\nBenefits and Cato will provide the necessary paperwork and information upon Faulkner's request.\nAs of November 1, 2007, Faulkner will be eligible to continue group health and major medical coverage pursuant to the\nConsolidated Omnibus and Reform Act (COBRA), at the applicable COBRA rate for his coverage (excluding Life Insurance,\nShort Term Disability and Long Term Disability coverage), provided that Faulkner pays his monthly COBRA charges on or\n(d) before the first day of each month of continuing coverage. Faulkner will be responsible for premium increases should any\noccur. Unless Faulkner informs Cato that he has become eligible for another employer's group health insurance benefits\nbefore October 31, 2007, Cato's Human Resources Department will send information to Faulkner for such continuation\nelection prior to October 31, 2007.\n3. eneral Release of All Claims. In consideration of the provisions of this Agreement running to Faulkner's benefit, Faulkner\nknowingly and voluntarily releases and forever discharges Cato, its affiliates, subsidiaries, divisions, predecessors, insurers, benefit\nplans, successors, and assigns as well as their current and former employees, attorneys, officers, directors, and agents thereof, both\nindividually and in their official capacities (collectively, the "Cato Affiliates"), of and from any and all claims, known and unknown,\nasserted or unasserted, which Faulkner has or may have against Cato or the Cato Affiliates as of the effective date of this Agreement,\nincluding, but not limited to, any alleged violation of:\nTitle VII of the Civil Rights A ct of 1964;\nSections 1981 through 1988 of Title 42 of the United States Code;\nThe Employee Retirement Income Security A ct of 1974 (except for any vested benefits under any tax qualified benefit plan);\nThe Immigration Reform and Control Act;\nThe A mericans with Disabilities Act of 1990;\nThe Discrimination in Employment ct of 1967;\n2\nThe Workers Adjustment and Retraining Notification Act;\nThe Fair Credit Reporting Act;\nThe Sarbanes-Oxley Act of 2002;\nAll North Carolina statutes, laws, and regulations;\nAny other federal, state, or local law, rule, regulation or ordinance;\nAny public policy, contract, tort, or common law; or\nAny basis for recovering costs, fees, or other expenses including attorneys' fees incurred in any such matters.\n4. Covenant Not to Sue. Faulkner agrees that he will never institute a claim released above in Paragraph 3 against Cato or the\nCato Affiliates. If Faulkner violates this agreement by suing Cato or any of the Cato Affiliates for any claims released herein,\nFaulkner agrees that he will pay all costs and expenses of defending any such suit incurred by Cato or any of the Cato Affiliates,\nincluding reasonable attorneys' fees.\n5. Affirmations. Faulkner makes the following affirmations:\nHe has not filed, nor caused to be filed, nor is he presently a party to, any claim against Cato or any Cato Affiliate that (i) is\n(a)\nnot being released by this instrument, and (ii) if filed, has not been withdrawn or dismissed.\nHe has been paid for and/or has received all leaves (paid or unpaid), compensation wages, bonuses, stock awards,\n(b) commissions, and/or benefits to which he may be entitled other than those provided to be paid under the terms of this\nAgreement.\n(c) He has no known workplace injuries or occupational diseases.\n(d) He will not apply in the future for employment, or accept employment, with Cato or any of its subsidiaries.\n6. Confidentiality and Return of Property. (a) Faulkner agrees not to disclose any information regarding the existence or\nsubstance of this Agreement, except to his immediate family, tax and financial advisor, and/or an attorney with whom Faulkner\nchooses to consult regarding his consideration of this Agreement. Furthermore, to the extent Faulkner is permitted to disclose and\ndoes disclose such information, Faulkner agrees to require, and he warrants, that the person receiving such information will maintain\nits confidentiality. Faulkner warrants and represents that from March 2, 2007 through his execution of this Agreement, he has not\nbreached the confidentiality provisions of this Agreement.\n(b)\nFaulkner acknowledges the highly competitive nature of Cato's business and affirms that he has not divulged, and will not\ndivulge, to anyone outside of Cato\n3\nany proprietary or confidential information of Cato. "Confidential Information" means any information (i) which is, or is\ndesigned to be or may be used in Cato's business, (ii) which is private or confidential in that it is not generally known or\navailable to the public, and (iii) which gives or may give Cato an opportunity to obtain an advantage over competitors or\npossible competitors, or which, if obtained by a competitor or possible competitor, would give or may give that competitor or\npossible competitor an advantage over Cato that a competitor may not otherwise have. Faulkner further acknowledges and\naffirms that he has not divulged, and will not divulge, to anyone outside of Cato any non-public information about Cato's\ncompany performance, future plans, or performance of Cato Affiliates, whether "Confidential Information" or not, that\nFaulkner learned in the course of and because of his employment with Cato. Faulkner also acknowledges that he will not\ndivulge to anyone outside of Cato any non-public information about Cato's internal business practices, whether "Confidential\nInformation" or not, that Faulkner learned in the course of and because of his employment with Cato. Provided, however, that\nFaulkner shall be entitled, subject to Paragraph 7 below, to respond to questions by a prospective employer with respect to his\nbusiness relationship as Chief Financial Officer with John Cato as Chief Executive Officer that led to Faulkner's resignation\nfrom the company.\nAt Cato's reasonable advance request, and at mutually convenient times, Faulkner will make himself available to answer\n(c)\nfactual questions or provide factual information on subjects related to business matters of Cato of which he has knowledge\narising from his former employment with Cato. In any legal proceeding to which he is not a party, his swor testimony,\nincluding testimony in discovery, shall, however, be procured by subpoena\nThe Parties agree that nothing in this Paragraph is intended to limit or prohibit, or shall be construed as limiting or prohibiting,\n(d)\neither Party from providing information in response to a lawfully issued subpoena or otherwise complying with any legal\nrequirement or from participating in any investigation if requested to do so by a federal, state or local agency. The Parties\nfurther agree that the existence and substance of this greement may be disclosed in order to enforce its terms.\nFaulkner affirms that he has returned all of Cato's property, documents, and/or any confidential information in whatever form,\n(e)\nand any duplicates thereof, in his possession or control. Faulkner also affirms that he is in possession of all of his property and\nthat Cato is not in possession of any of his property.\n7. Non-Disparagement. Faulkner and Cato agree that Faulkner and Cato's Senior Executives (President, Executive Vice\nPresidents, Senior Vice Presidents, and Assistant to the President) will refrain from making negative, disparaging, defamatory or\nslanderous comments, references, criticism or characterizations concerning Faulkner, Cato, or the Cato Affiliates, either verbally, in\nwriting, or in any other manner, to any third party for any purpose whatsoever, unless a legal duty to do so is imposed Faulkner\nfurther agrees not to make any other statement, written or oral (including but not limited to any media source or to any other party),\nthat would\n4\ndisrupt, impair or affect adversely the reputation, business interests, or profitability of Cato or any of the Cato Affiliates, unless a\nlegal duty to do so is imposed.\n8. Neutral Reference. In the event that any outside entities seek input from Cato for purposes of hiring Faulkner, Cato will\nprovide a neutral reference limited to his dates of employment position, and annual salary.\n9. No Solicitation. Faulkner agrees that for a period of one year from the effective date of his resignation, he will not solicit any\nCato employee to leave Cato's employment, initiate such a solicitation by a third party, allow himself to be listed as a reference by\na\nCato employee, or hire or recommend for hire by any entity by whom he is employed anyone employed by Cato.\n10. Governing Law and Interpretation. This Agreement shall be governed and conformed in accordance with the laws of the\nState of North Carolina without regard to its conflict of laws provisions. In the event of a breach of any provision of this Agreement,\neither Party may institute an action specifically to enforce any term or terms of this Agreement and/or seek any damages for breach.\nShould any provision of this Agreement be declared illegal or unenforceable by any court of competent jurisdiction, and should such\nprovision be unable to be modified to be enforceable, excluding the general release language, such provision shall immediately\nbecome null and void, leaving the remainder of this A greement in full force and effect.\n11. No Wrongdoing. The Parties agree that neither this Agreement nor the furnishing of the consideration for this Agreement\nshall be deemed or construed at any time for any purpose as an admission by Cato of wrongdoing or evidence of any liability or\nunlawful conduct of any kind.\n12. Amendment. This Agreement may not be modified, altered, or changed except in writing and signed by both Parties.\n13. Notices. Any delivery of funds or notices required under this A greement shall be served upon the Parties via hand delivery,\ncertified mail, or overnight priority mail through a commercial third-party carrier (such as UPS or FedEx) as follows:\nNotices to Cato:\nRobert C. Brummer\nSenior Vice President\nThe Cato Corporation\n8100 Denmark Road\nCharlotte, NC 28273\nNotices to Faulkner:\nReynolds C. Faulkner\nC/O E. Osborne Ayscue, Jr.\nHelms Mullis & Wicker\n201 North Tryon Street\nCharlotte, North Carolina 28202\n5\n14. Entire Agreement. This Agreement sets forth the entire agreement between the Parties and replaces any prior agreements or\nunderstandings between the Parties, including without limitation the Employment A greement. Faulkner acknowledges that he has not\nrelied on any representations, promises, or agreements of any kind made to him in connection with his decision to accept this\nAgreement, except for those set forth in this Agreement.\n15.\nADEA Waiver and Acknowledgement Faulkner acknowledges that he knowingly and voluntarily waives any rights he has\nunder the Age Discrimination in Employment ct ("ADEA"), 29 U.S.C. 621 et seq., except those that may arise under the ADEA\nafter the date this Agreement is executed. Faulkner further acknowledges that the consideration he is receiving under this A greement\nis in addition to anything of value to which Faulkner already is entitled. Faulkner acknowledges that he may, if desired, have a period\nof twenty-one (21) calendar days to consider this Agreement including its reference to the ADEA contained here and in Paragraph 3\n(the "Consideration Period"). In addition, Faulkner may revoke this Agreement within a period of seven (7) calendar days following\nits execution (the "Revocation Period"). If Faulkner does not revoke the A greement and Release during the Revocation Period, it will\nbecome fully effective upon expiration of the Revocation Period. Faulkner acknowledges that he has been advised by Cato that he\ncan and should consult with an attorney.\nFAULKNER AND CATO FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTER INTO THIS\nAGREEMENT INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS THEY HAVE OR MIGHT HAVE\nAGAINST ONE ANOTHER.\nThe Parties knowingly and voluntarily sign this Agreement as of the date(s) set forth below:\nREYNOLDS C. FAULKNER\nTHE CATO CORPORATION, a\nDelaware corporation\nBy: /s/ Reynolds C. Faulkner\nBy: /s/ Robert C. Brummer\nReynolds C. Faulkner\nRobert C. Brummer\nSenior Vice President\nDate: April 18, 2007\nDate: April 18, 2007\n6	Exhibit 10.1\nSEPARATION AND CONFIDENTIALITY AGREEMENT AND GENERAL RELEASE\nTHIS SEPARATION AND CONFIDENTIALITY AGREEMENT AND GENERAL RELEASE (“Agreement”), dated April 18,\n2007, is made between The Cato Corporation (“Cato”) and Reynolds C. Faulkner, his heirs, executors, administrators, successors,\nand assigns (“Faulkner”). (Cato and Faulkner are referred to as “Parties”). This Agreement shall be effective on the date Faulkner and\nCato sign, subject to the revocation rights set forth below.\nWHEREAS, Faulkner previously was employed by Cato as its Executive Vice-President and Chief Financial Officer under a letter\nagreement dated March 6, 2006 (“Employment Agreement”);\nWHEREAS, upon being told by Cato that he would be terminated without cause and given the option to do so, Faulkner resigned\nrather than be terminated without cause, with such resignation effective October 30, 2006;\nWHEREAS, the Parties wish to settle and resolve all possible controversies between them amicably and expeditiously;\nNOW THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the\nreceipt and sufficiency of which is hereby acknowledged by Faulkner, the Parties agree as follows:\n1. Last Day of Employment. Faulkner’s last day of active employment with Cato was October 30, 2006. Faulkner is not eligible\nto participate in Cato’s 401(k) Retirement and Savings Plan or any other Cato-sponsored employee benefit plan after October 30,\n2006, except as set forth below.\n2. Consideration. In consideration for signing this Agreement, Cato will do the following:\n(a)\nPay to Faulkner on the next business day after the Revocation Period described in Paragraph 15, in a lump sum, $750,000, less\n(i) $29,196.12 already paid in November 2006, or $720,803.88, and (ii) less $3,357.86 as described in Section 2(b) below. Of\nthe $720,803.88 lump sum amount, $583,303.88 shall be deemed to be compensation in settlement of any wage, bonus, stock,\nseverance, or employment claims and will be subject to withholding for Federal and North Carolina income tax purposes and\nfor which Faulkner will be issued a Form W-2 for the year 2007 at the time provided for under existing governmental\nregulations. For the balance of the lump sum amount, or $137,500 paid in settlement of other claims, including in tort or any\nother basis, that Faulkner releases herein, Faulkner will be issued a Form 1099 for the year 2007 with respect thereto at the\ntime provided for under existing governmental regulations.\n(b)\nContinue Faulkner’s health insurance coverage (on the same basis and at the same level it is provided to current Cato\nassociates) from October 31, 2006 through October 31, 2007 or until Faulkner becomes eligible for another employer’s group\nhealth insurance benefits, whichever occurs first. Faulkner’s share of the health insurance premiums will be $3,357.86 .\nFaulkner agrees that this $3,357.86 amount will be withheld by Cato from the $720,803.88 lump sum payment above. From\nthe $3,357.86 amount, Cato will deduct any amounts needed to pay prior months of coverage, and going forward, Cato will\ndeduct $306.07 each month for Faulkner’s share of the health insurance premiums. In the event Faulkner becomes eligible for\nanother employer’s group health insurance benefits before October 31, 2007, Faulkner will notify Cato and Cato will pay to\nFaulkner any amount of the $3,357.86 that has not already been applied to Faulkner’s monthly share of the health insurance\npremiums.\n(c)\nFaulkner may convert the existing group life insurance coverage to an individual plan upon request to Cato’s Director of\nBenefits and Cato will provide the necessary paperwork and information upon Faulkner’s request.\n(d)\nAs of November 1, 2007, Faulkner will be eligible to continue group health and major medical coverage pursuant to the\nConsolidated Omnibus and Reform Act (COBRA), at the applicable COBRA rate for his coverage (excluding Life Insurance,\nShort Term Disability and Long Term Disability coverage), provided that Faulkner pays his monthly COBRA charges on or\nbefore the first day of each month of continuing coverage. Faulkner will be responsible for premium increases should any\noccur. Unless Faulkner informs Cato that he has become eligible for another employer’s group health insurance benefits\nbefore October 31, 2007, Cato’s Human Resources Department will send information to Faulkner for such continuation\nelection prior to October 31, 2007.\n3. General Release of All Claims. In consideration of the provisions of this Agreement running to Faulkner’s benefit, Faulkner\nknowingly and voluntarily releases and forever discharges Cato, its affiliates, subsidiaries, divisions, predecessors, insurers, benefit\nplans, successors, and assigns as well as their current and former employees, attorneys, officers, directors, and agents thereof, both\nindividually and in their official capacities (collectively, the “Cato Affiliates”), of and from any and all claims, known and unknown,\nasserted or unasserted, which Faulkner has or may have against Cato or the Cato Affiliates as of the effective date of this Agreement,\nincluding, but not limited to, any alleged violation of:\n•\nTitle VII of the Civil Rights Act of 1964;\n•\nSections 1981 through 1988 of Title 42 of the United States Code;\n•\nThe Employee Retirement Income Security Act of 1974 (except for any vested benefits under any tax qualified benefit plan);\n•\nThe Immigration Reform and Control Act;\n•\nThe Americans with Disabilities Act of 1990;\n•\nThe Age Discrimination in Employment Act of 1967;\n2\n•\nThe Workers Adjustment and Retraining Notification Act;\n•\nThe Fair Credit Reporting Act;\n•\nThe Sarbanes-Oxley Act of 2002;\n•\nAll North Carolina statutes, laws, and regulations;\n•\nAny other federal, state, or local law, rule, regulation, or ordinance;\n•\nAny public policy, contract, tort, or common law; or\n•\nAny basis for recovering costs, fees, or other expenses including attorneys’ fees incurred in any such matters.\n4. Covenant Not to Sue. Faulkner agrees that he will never institute a claim released above in Paragraph 3 against Cato or the\nCato Affiliates. If Faulkner violates this agreement by suing Cato or any of the Cato Affiliates for any claims released herein,\nFaulkner agrees that he will pay all costs and expenses of defending any such suit incurred by Cato or any of the Cato Affiliates,\nincluding reasonable attorneys’ fees.\n5. Affirmations. Faulkner makes the following affirmations:\n(a)\nHe has not filed, nor caused to be filed, nor is he presently a party to, any claim against Cato or any Cato Affiliate that (i) is\nnot being released by this instrument, and (ii) if filed, has not been withdrawn or dismissed.\n(b)\nHe has been paid for and/or has received all leaves (paid or unpaid), compensation, wages, bonuses, stock awards,\ncommissions, and/or benefits to which he may be entitled other than those provided to be paid under the terms of this\nAgreement.\n(c) He has no known workplace injuries or occupational diseases.\n(d) He will not apply in the future for employment, or accept employment, with Cato or any of its subsidiaries.\n6. Confidentiality and Return of Property. (a) Faulkner agrees not to disclose any information regarding the existence or\nsubstance of this Agreement, except to his immediate family, tax and financial advisor, and/or an attorney with whom Faulkner\nchooses to consult regarding his consideration of this Agreement. Furthermore, to the extent Faulkner is permitted to disclose and\ndoes disclose such information, Faulkner agrees to require, and he warrants, that the person receiving such information will maintain\nits confidentiality. Faulkner warrants and represents that from March 2, 2007 through his execution of this Agreement, he has not\nbreached the confidentiality provisions of this Agreement.\n(b)\nFaulkner acknowledges the highly competitive nature of Cato’s business and affirms that he has not divulged, and will not\ndivulge, to anyone outside of Cato\n3\nany proprietary or confidential information of Cato. “Confidential Information” means any information (i) which is, or is\ndesigned to be or may be used in Cato’s business, (ii) which is private or confidential in that it is not generally known or\navailable to the public, and (iii) which gives or may give Cato an opportunity to obtain an advantage over competitors or\npossible competitors, or which, if obtained by a competitor or possible competitor, would give or may give that competitor or\npossible competitor an advantage over Cato that a competitor may not otherwise have. Faulkner further acknowledges and\naffirms that he has not divulged, and will not divulge, to anyone outside of Cato any non-public information about Cato’s\ncompany performance, future plans, or performance of Cato Affiliates, whether “Confidential Information” or not, that\nFaulkner learned in the course of and because of his employment with Cato. Faulkner also acknowledges that he will not\ndivulge to anyone outside of Cato any non-public information about Cato’s internal business practices, whether “Confidential\nInformation” or not, that Faulkner learned in the course of and because of his employment with Cato. Provided, however, that\nFaulkner shall be entitled, subject to Paragraph 7 below, to respond to questions by a prospective employer with respect to his\nbusiness relationship as Chief Financial Officer with John Cato as Chief Executive Officer that led to Faulkner’s resignation\nfrom the company.\n(c)\nAt Cato’s reasonable advance request, and at mutually convenient times, Faulkner will make himself available to answer\nfactual questions or provide factual information on subjects related to business matters of Cato of which he has knowledge\narising from his former employment with Cato. In any legal proceeding to which he is not a party, his sworn testimony,\nincluding testimony in discovery, shall, however, be procured by subpoena.\n(d)\nThe Parties agree that nothing in this Paragraph is intended to limit or prohibit, or shall be construed as limiting or prohibiting,\neither Party from providing information in response to a lawfully issued subpoena or otherwise complying with any legal\nrequirement, or from participating in any investigation if requested to do so by a federal, state or local agency. The Parties\nfurther agree that the existence and substance of this Agreement may be disclosed in order to enforce its terms.\n(e)\nFaulkner affirms that he has returned all of Cato’s property, documents, and/or any confidential information in whatever form,\nand any duplicates thereof, in his possession or control. Faulkner also affirms that he is in possession of all of his property and\nthat Cato is not in possession of any of his property.\n7. Non-Disparagement. Faulkner and Cato agree that Faulkner and Cato’s Senior Executives (President, Executive Vice\nPresidents, Senior Vice Presidents, and Assistant to the President) will refrain from making negative, disparaging, defamatory or\nslanderous comments, references, criticism or characterizations concerning Faulkner, Cato, or the Cato Affiliates, either verbally, in\nwriting, or in any other manner, to any third party for any purpose whatsoever, unless a legal duty to do so is imposed. Faulkner\nfurther agrees not to make any other statement, written or oral (including but not limited to any media source or to any other party),\nthat would\n4\ndisrupt, impair or affect adversely the reputation, business interests, or profitability of Cato or any of the Cato Affiliates, unless a\nlegal duty to do so is imposed.\n8. Neutral Reference. In the event that any outside entities seek input from Cato for purposes of hiring Faulkner, Cato will\nprovide a neutral reference limited to his dates of employment, position, and annual salary.\n9. No Solicitation. Faulkner agrees that for a period of one year from the effective date of his resignation, he will not solicit any\nCato employee to leave Cato’s employment, initiate such a solicitation by a third party, allow himself to be listed as a reference by a\nCato employee, or hire or recommend for hire by any entity by whom he is employed anyone employed by Cato.\n10. Governing Law and Interpretation. This Agreement shall be governed and conformed in accordance with the laws of the\nState of North Carolina without regard to its conflict of laws provisions. In the event of a breach of any provision of this Agreement,\neither Party may institute an action specifically to enforce any term or terms of this Agreement and/or seek any damages for breach.\nShould any provision of this Agreement be declared illegal or unenforceable by any court of competent jurisdiction, and should such\nprovision be unable to be modified to be enforceable, excluding the general release language, such provision shall immediately\nbecome null and void, leaving the remainder of this Agreement in full force and effect.\n11. No Wrongdoing. The Parties agree that neither this Agreement nor the furnishing of the consideration for this Agreement\nshall be deemed or construed at any time for any purpose as an admission by Cato of wrongdoing or evidence of any liability or\nunlawful conduct of any kind.\n12. Amendment. This Agreement may not be modified, altered, or changed except in writing and signed by both Parties.\n13. Notices. Any delivery of funds or notices required under this Agreement shall be served upon the Parties via hand delivery,\ncertified mail, or overnight priority mail through a commercial third-party carrier (such as UPS or FedEx) as follows:\nNotices to Cato:\nRobert C. Brummer\nSenior Vice President\nThe Cato Corporation\n8100 Denmark Road\nCharlotte, NC 28273\nNotices to Faulkner:\nReynolds C. Faulkner\nC/O E. Osborne Ayscue, Jr.\nHelms Mullis & Wicker\n201 North Tryon Street\nCharlotte, North Carolina 28202\n5\n14. Entire Agreement. This Agreement sets forth the entire agreement between the Parties and replaces any prior agreements or\nunderstandings between the Parties, including without limitation the Employment Agreement. Faulkner acknowledges that he has not\nrelied on any representations, promises, or agreements of any kind made to him in connection with his decision to accept this\nAgreement, except for those set forth in this Agreement.\n15. ADEA Waiver and Acknowledgement. Faulkner acknowledges that he knowingly and voluntarily waives any rights he has\nunder the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C . 621 et seq., except those that may arise under the ADEA\nafter the date this Agreement is executed. Faulkner further acknowledges that the consideration he is receiving under this Agreement\nis in addition to anything of value to which Faulkner already is entitled. Faulkner acknowledges that he may, if desired, have a period\nof twenty-one (21) calendar days to consider this Agreement, including its reference to the ADEA contained here and in Paragraph 3\n(the “Consideration Period”). In addition, Faulkner may revoke this Agreement within a period of seven (7) calendar days following\nits execution (the “Revocation Period”). If Faulkner does not revoke the Agreement and Release during the Revocation Period, it will\nbecome fully effective upon expiration of the Revocation Period. Faulkner acknowledges that he has been advised by Cato that he\ncan and should consult with an attorney.\nFAULKNER AND CATO FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTER INTO THIS\nAGREEMENT INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS THEY HAVE OR MIGHT HAVE\nAGAINST ONE ANOTHER.\nThe Parties knowingly and voluntarily sign this Agreement as of the date(s) set forth below:\nREYNOLDS C. FAULKNER\nTHE CATO CORPORATION, a\nDelaware corporation\nBy: /s/ Reynolds C. Faulkner\nBy: /s/ Robert C. Brummer\nReynolds C. Faulkner\nRobert C. Brummer\nSenior Vice President\nDate: April 18, 2007\nDate: April 18, 2007\n6
+dd2565e5177b0808800811fce8d502fa.pdf	effective_date jurisdiction party term	EX-99.(D)(9) 8 d333885dex99d9.htm EX-99.(D)(9)\nExhibit 99.(d)(9)\nNON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is made as of the 15th day of November, 2011 by and between COMVERGE, Inc., a corporation organized under the\nlaws of Delaware (“COMVERGE”) and H.I .G . Middle Market, LLC, a company located at 1450 Brickell Avenue, 3l Floor, Miami, FL 33131\n(“H.I.G .”). COMVERGE and H.I .G. are individually referred to as a “Party” and collectively referred to as the “Parties”.\nWHEREAS, COMVERGE will provide financial information and strategic operating plans, including drafts of financial projections, budgets\nand due diligence to H.I.G . and its Representatives (as defined below) for the purpose of H.I .G. making a potential investment in COMVERGE (the\n“Transaction”); and\nWHEREAS, COMVERGE will provide confidential and proprietary information and materials to H.I.G . and H.I .G . shall keep such\ninformation confidential.\nNOW THEREFORE, the Parties agree as follows:\n1. Confidential Information Defined. The Parties acknowledge that, in the course of the Transaction, it is anticipated that H.I.G . and its\nRepresentatives will receive certain non-public and confidential information, from or about COMVERGE, including, but not limited to financing\ninformation, operating budgets, strategic business plan documents, product and services offerings, software platform or any other confidential and\nproprietary information relating to the Transaction or COMVERGE. All such financial information and term sheets supplied by COMVERGE or its\nrepresentatives are hereinafter called the “Confidential Information”. The term “Confidential Information” as used herein also includes the\nTransaction itself and any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence,\nfacts or other materials derived or produced by COMVERGE or its representatives for each other which contain or otherwise reflect confidential or\nproprietary information provided or developed by COMVERGE in connection with the Transaction, or any other information which H.I.G. knows or\nreasonably ought to know is confidential or proprietary information of COMVERGE. Any Confidential Information supplied in connection with the\nTransaction by COMVERGE prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment\nas the Confidential Information made available hereunder after the execution of this Agreement. For the purposes of this Agreement,\n“Representatives” of H.I .G. shall include its employees, officers, directors, financial advisors, staff agents, financing sources, representatives,\nconsultants, advisors or members of any Investment Review or similar committees, but only to the extent such parties receive Confidential\nInformation and excluding, in each case, any portfolio companies.\n2. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which the\nreceiving Party can demonstrate: (a) is already known to the receiving Party on a nonproprietary basis at the time it is disclosed to the receiving\nParty; (b) is or becomes generally known to the public through no wrongful act of the receiving Party or its representatives in violation of this\nAgreement; (c) has been rightfully received by the receiving Party from a third party without restriction on disclosure and without, to H.I .G.’s\nknowledge, a breach of an obligation of confidentiality running directly to the providing Party, if any; (d) has been approved for public release by\nwritten authorization by the originating Party; or (e ) was developed independently by H.I .G. or its Representatives without use of the Confidential\nInformation.\nst\n3. Non-disclosure Obligation. H.J .G . shall keep the Confidential Information confidential and shall not disclose such Confidential Information,\nin whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with H.I.G .’ S\nevaluation, negotiation and potential consummation of the Transaction, except with the prior written consent of COMVERGE or as otherwise\npermitted hereunder. The Confidential Information shall be used by H.I .G. solely for the purpose of evaluating the Transaction, and shall not be\notherwise used without COMVERGE’s prior written consent. H.I .G. agrees that it may disclose the Confidential Information only to those of its\nRepresentatives who need to know the Confidential Information for the purpose of assisting the Parties in connection with the Transaction. Prior to\ndisseminating any of the Confidential Information to any agent and/or representative permitted herein, H.I.G. shall advise its Representative of the\nconfidential nature of the Confidential Information, and shall require such Representative to agree to maintain the confidentiality of the Confidential\nInformation and to be bound by terms of confidentiality at least as restrictive as the terms of this Agreement. Additionally, except as required by law,\nneither Party shall, and each Party shall direct its representatives to not, disclose to any person (i) the fact that Confidential Information has been\nmade available to H.I.G . and its Representatives, (ii) the fact that the Parties are in discussions regarding the Transaction, or (iii) the terms and\nconditions of such discussions, including the status thereof.\n4. No Export. H.I.G . will not export, directly or indirectly, any Confidential information acquired from COMVERGE pursuant to this\nAgreement, or any product utilizing such Confidential information, to any country, or any company located in any country, for which the U.S .\nGovernment or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining written\nconsent from COMVERGE and the appropriate license.\n5. Standard of Protection. For the purpose of complying with the obligations set forth herein, H.I .G . shall use a reasonable standard of care, no\nless than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.\n6. Compliance with Legal Process. In the event that H.I .G. or its Representatives is legally requested or required (by oral questions,\ninterrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or by applicable statutes, regulations\nor laws, including but not limited to the rules of any securities trading exchange or securities quotation system, or applicable professional standards\nof the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or\nobligations thereunder, to disclose any Confidential Information, H.I.G . shall, to the extent practicable and permitted by law, promptly notify\nCOMVERGE of such request or requirement prior to disclosure so that COMVERGE may seek an appropriate protective order and/or waive\ncompliance with the terms of this Agreement. For the avoidance of doubt, any disclosure made pursuant to this paragraph shall not be in breach of\nthis Agreement.\n7. Ownership; Return of Information. Except as may otherwise set forth in a written agreement between the parties relating to the Transaction,\nall Confidential Information (including tangible copies and computerized or electronic versions thereof and also all Confidential Information\ncontained in all deliverables and work papers), including all intellectual property rights pertaining\n2\nthereto, shall be the property of COMVERGE. No later than ten (10) business days following the receipt of a written request from COMVERGE,\nH.I .G. shall destroy or deliver to COMVERGE all Confidential Information, together with a certificate executed by the agent and/or representative\nor principal of H.I.G . confirming that all such materials in H.I.G .’s possession or control have been delivered to COMVERGE or destroyed, except\nas permitted herein. Notwithstanding the foregoing, H.I .G. and its Representatives may retain (i) any electronic or written copies of Confidential\nInformation as may be stored on its electronic records storage system as a result of automated backup systems or as may be otherwise required by\nlaw, other regulatory requirements, or internal document retention policies, provided that any such Confidential Information remains subject to this\nAgreement; and (ii) a single confidential copy of all Confidential Information which may be retained by H.I.G.’s internal legal counsel for the sole\npurpose of prosecuting or defending any matters which may arise from or relate to this Agreement.\n8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this\nAgreement and that the originating Party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to\nremedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this\nAgreement, but shall be in addition to all other rights and remedies available at law or in equity, except as provided herein. Except in the event of\ngross negligence or willful misconduct, neither Party shall be liable for any consequential, indirect, punitive or special losses or damages (including,\nbut not limited to, lost profits, lost earnings and loss of production) incurred by the other Party in connection with such Party’s performance or\nfailure to perform any of its obligations under this Agreement, or the breach of any representation, warranty or other obligation hereunder, whether\nexpressed or implied and whether such damages are claimed under breach of warranty, breach of contract, tort, or other theory or cause of action at\nlaw or in equity.\n9. Standstill Period. H .I.G. acknowledges that, in its examination of the Confidential Information, you may have access to material non-public\ninformation concerning COMVERGE. You agree that, for a period of one year following the date of this agreement (the “Standstill Period”), you\nwill not, directly or indirectly, without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree to\nacquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE , any warrant or\noption to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other\nthan with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination,\nrecapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in any way participate or engage in, any\nsolicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE;\n(iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended\n(the “Exchange Act”)) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with\nothers, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose any\nintention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or\nencourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. You\nfurther agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of\nCOMVERGE, take\n3\nany action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination,\nmerger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any\nother person or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement (approved by\nthe Board of Directors of COMVERGE) to acquire more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or\nits subsidiaries representing more than 50% of the consolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing,\nand as described in Section 14, nothing in this section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a\npublic investor in COMVERGE, so long as such transactions do not violate the applicable United States securities laws. Furthermore, for avoidance\nof doubt, both Parties agree that the purpose of the Transaction is for H.I .G. to submit a proposal to COMVERGE regarding a possible transaction.\nAccordingly, until informed in writing by COMVERGE otherwise, H.I .G. may propose potential transactions to COMVERGE without violating any\nof the restrictions set forth above in this section.\n10. Non Solicit. For two years from the date hereof, you will not, directly or indirectly solicit for employment or hire any officer, director, or\nother key employees (to be specified in writing by COMVERGE) of COMVERGE or any of its subsidiaries or divisions with whom you have had\ncontact or who became known to you in connection with your consideration of the Transaction, except that you shall not be precluded from hiring\nany such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any\npublic advertisement or non- directed search, or (iii) was terminated by COMVERGE. For avoidance of doubt, the provisions of this section shall\nnot apply to any portfolio companies of H.I.G . so long as H.I .G. does not share Confidential Information with its portfolio companies.\n11. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for a\nperiod of two (2) years after the date hereof.\n12. No Waiver. No failure or delay by COMVERGE in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor\nshall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder.\n13. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both\nParties hereto.\n14. Other Transactions. COMVERGE acknowledges and understands that H.I .G. and its Representatives may or in the future evaluate, invest\nin or do business with competitors or potential competitors of COMVERGE. Neither the execution of this Agreement nor receipt of Confidential\nInformation shall in any way restrict or preclude such activities. Moreover, notwithstanding any provision of this Agreement to the contrary, this\nAgreement shall not limit, restrict or impair H.I .G.’s ability or the ability of is Representatives to engage in transactions with respect to securities,\nbank debt, instruments and interests of COMVERGE or any other person or entity, so long as such transactions do not violate applicable United\nStates securities laws.\n15. Applicability to Affiliated Parties. Any information disclosed to H.I .G. by any of COMVERGE’s affiliates or by any company, person or\nother entity participating with COMVERGE,\n4\nin any consortium, partnership, joint venture or similar business combination in direct connection with the Transaction, which would otherwise\nconstitute Confidential Information hereunder if disclosed by COMVERGE, shall be deemed to constitute Confidential Information under this\nAgreement. For purposes of this agreement, an “affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, is\ncontrolled by, or is under common control with, such entity.\n16. Attorneys’ Fees. Should COMVERGE or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an\naction at law or in equity to enforce any of the terms or conditions of this Agreement the non-prevailing party (as determined in a final,\nnonappealable judicial opinion) shall reimburse the prevailing Party or any such beneficiary for all reasonable attorneys’ fees and costs incurred\npursuing such proceeding.\n17. Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed, interpreted and enforced in accordance with\nthe laws of the State of Georgia, without giving effect to its principles or rules regarding conflicts of laws.\n18. Party Status. This Agreement is neither intended to create, nor shall it be construed as creating, (i) a joint venture, partnership or other\nform of business association between the Parties, (ii) an obligation to buy or sell products using or incorporating the Proprietary Information, (iii) an\nimplied or express license grant from either Party to the other, (iv) any obligation to continue discussions or negotiations with respect to any\npotential agreement between the Parties or (v) an agreement to enter into any agreement.\n19. Severability. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any\nrespect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible; provided however, that the\nintention and essence of this Agreement may still be accomplished and satisfied.\n20. Disclosure. H .I.G. will notify COMVERGE in writing promptly upon the occurrence of any unauthorized release of Proprietary\nInformation or breach of this Agreement of which it is aware.\n21. Warranty Matters. THE PARTIES HERETO AGREE THAT NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE\nGIVEN BY THE ORIGINATING PARTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER,\nINCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF\nTRADE, FITNESS FOR A PARTICULAR PURPOSE OR DESIGN.\n22. Miscellaneous. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding\non, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in one or more counterpart originals,\neach of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding.\nThis Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and\nunderstandings between the Parties relating to the Transaction. It is understood that the terms of access by H.I .G. or its Representatives to\nConfidential Information in connection with the Transaction contained in any data room or website shall be superseded by the understandings and\nagreements contained herein.\n5\n23. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of H.I .G.’s portfolio companies, investment professionals\nor affiliated investment funds that do not receive Confidential Information hereunder\nIN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above\nwritten.\nCOMVERGE, INC.\n/s/ David Mathieson\nPrinted Name: David Mathieson\nTitle: Executive Vice President & Chief Financial Officer\nH.I .G . MIDDLE MARKET, LLC\n/s/ Joe Zulli\nPrinted Name: Joe Zulli\nTitle: Principal\n6	EX-99.(D)(9) 8 d333885dex99d9.htm EX-99.(D)(9)\nExhibit 99.(d)(9)\nNON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is made as of the 15th day of November, 2011 by and between COMVERGTE, Inc., a corporation organized under the\nlaws of Delaware (“COMVERGE”) and H.I.G. Middle Market, LL.C, a company located at 1450 Brickell Avenue, 3Ist Floor, Miami, FL 33131\n(“H.I.G.”). COMVERGE and H.I.G. are individually referred to as a “Party” and collectively referred to as the “Parties”.\nWHEREAS, COMVERGE will provide financial information and strategic operating plans, including drafts of financial projections, budgets\nand due diligence to H.I.G. and its Representatives (as defined below) for the purpose of H.I.G. making a potential investment in COMVERGE (the\n“Transaction”); and\nWHEREAS, COMVERGE will provide confidential and proprietary information and materials to H.I.G. and H.I.G. shall keep such\ninformation confidential.\nNOW THEREFORE, the Parties agree as follows:\n1. Confidential Information Defined. The Parties acknowledge that, in the course of the Transaction, it is anticipated that H.I.G. and its\nRepresentatives will receive certain non-public and confidential information, from or about COMVERGTE, including, but not limited to financing\ninformation, operating budgets, strategic business plan documents, product and services offerings, software platform or any other confidential and\nproprietary information relating to the Transaction or COMVERGE. All such financial information and term sheets supplied by COMVERGE or its\nrepresentatives are hereinafter called the “Confidential Information”. The term “Confidential Information” as used herein also includes the\nTransaction itself and any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence,\nfacts or other materials derived or produced by COMVERGE or its representatives for each other which contain or otherwise reflect confidential or\nproprietary information provided or developed by COMVERGE in connection with the Transaction, or any other information which H.I.G. knows or\nreasonably ought to know is confidential or proprietary information of COMVERGE. Any Confidential Information supplied in connection with the\nTransaction by COMVERGE prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment\nas the Confidential Information made available hereunder after the execution of this Agreement. For the purposes of this Agreement,\n“Representatives” of H.I.G. shall include its employees, officers, directors, financial advisors, staff agents, financing sources, representatives,\nconsultants, advisors or members of any Investment Review or similar committees, but only to the extent such parties receive Confidential\nInformation and excluding, in each case, any portfolio companies.\n2. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which the\nreceiving Party can demonstrate: (a) is already known to the receiving Party on a nonproprietary basis at the time it is disclosed to the receiving\nParty; (b) is or becomes generally known to the public through no wrongful act of the receiving Party or its representatives in violation of this\nAgreement; (c) has been rightfully received by the receiving Party from a third party without restriction on disclosure and without, to H.I.G.’s\nknowledge, a breach of an obligation of confidentiality running directly to the providing Party, if any; (d) has been approved for public release by\nwritten authorization by the originating Party; or (e ) was developed independently by H.I.G. or its Representatives without use of the Confidential\nInformation.\n3. Non-disclosure Obligation. H.J.G. shall keep the Confidential Information confidential and shall not disclose such Confidential Information,\nin whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with H.I1.G.” S\nevaluation, negotiation and potential consummation of the Transaction, except with the prior written consent of COMVERGE or as otherwise\npermitted hereunder. The Confidential Information shall be used by H.I.G. solely for the purpose of evaluating the Transaction, and shall not be\notherwise used without COMVERGE’s prior written consent. H.I.G. agrees that it may disclose the Confidential Information only to those of its\nRepresentatives who need to know the Confidential Information for the purpose of assisting the Parties in connection with the Transaction. Prior to\ndisseminating any of the Confidential Information to any agent and/or representative permitted herein, H.I.G. shall advise its Representative of the\nconfidential nature of the Confidential Information, and shall require such Representative to agree to maintain the confidentiality of the Confidential\nInformation and to be bound by terms of confidentiality at least as restrictive as the terms of this Agreement. Additionally, except as required by law,\nneither Party shall, and each Party shall direct its representatives to not, disclose to any person (i) the fact that Confidential Information has been\nmade available to H.I.G. and its Representatives, (ii) the fact that the Parties are in discussions regarding the Transaction, or (iii) the terms and\nconditions of such discussions, including the status thereof.\n4. No Export. H.I.G. will not export, directly or indirectly, any Confidential information acquired from COMVERGE pursuant to this\nAgreement, or any product utilizing such Confidential information, to any country, or any company located in any country, for which the U.S.\nGovernment or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining written\nconsent from COMVERGE and the appropriate license.\n5. Standard of Protection. For the purpose of complying with the obligations set forth herein, H.I.G. shall use a reasonable standard of care, no\nless than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.\n6. Compliance with Legal Process. In the event that H.I.G. or its Representatives is legally requested or required (by oral questions,\ninterrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or by applicable statutes, regulations\nor laws, including but not limited to the rules of any securities trading exchange or securities quotation system, or applicable professional standards\nof the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or\nobligations thereunder, to disclose any Confidential Information, H.I.G. shall, to the extent practicable and permitted by law, promptly notify\nCOMVERGE of such request or requirement prior to disclosure so that COMVERGE may seek an appropriate protective order and/or waive\ncompliance with the terms of this Agreement. For the avoidance of doubt, any disclosure made pursuant to this paragraph shall not be in breach of\nthis Agreement.\n7. Ownership; Return of Information. Except as may otherwise set forth in a written agreement between the parties relating to the Transaction,\nall Confidential Information (including tangible copies and computerized or electronic versions thereof and also all Confidential Information\ncontained in all deliverables and work papers), including all intellectual property rights pertaining\n2\nthereto, shall be the property of COMVERGE. No later than ten (10) business days following the receipt of a written request from COMVERGE,\nH.I.G. shall destroy or deliver to COMVERGE all Confidential Information, together with a certificate executed by the agent and/or representative\nor principal of H.I.G. confirming that all such materials in H.I.G.’s possession or control have been delivered to COMVERGE or destroyed, except\nas permitted herein. Notwithstanding the foregoing, H.I.G. and its Representatives may retain (i) any electronic or written copies of Confidential\nInformation as may be stored on its electronic records storage system as a result of automated backup systems or as may be otherwise required by\nlaw, other regulatory requirements, or internal document retention policies, provided that any such Confidential Information remains subject to this\nAgreement; and (ii) a single confidential copy of all Confidential Information which may be retained by H.I.G.’s internal legal counsel for the sole\npurpose of prosecuting or defending any matters which may arise from or relate to this Agreement.\n8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this\nAgreement and that the originating Party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to\nremedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this\nAgreement, but shall be in addition to all other rights and remedies available at law or in equity, except as provided herein. Except in the event of\ngross negligence or willful misconduct, neither Party shall be liable for any consequential, indirect, punitive or special losses or damages (including,\nbut not limited to, lost profits, lost earnings and loss of production) incurred by the other Party in connection with such Party’s performance or\nfailure to perform any of its obligations under this Agreement, or the breach of any representation, warranty or other obligation hereunder, whether\nexpressed or implied and whether such damages are claimed under breach of warranty, breach of contract, tort, or other theory or cause of action at\nlaw or in equity.\n9. Standstill Period. H.I.G. acknowledges that, in its examination of the Confidential Information, you may have access to material non-public\ninformation concerning COMVERGE. You agree that, for a period of one year following the date of this agreement (the “Standstill Period”), you\nwill not, directly or indirectly, without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree to\nacquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE , any warrant or\noption to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other\nthan with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination,\nrecapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in any way participate or engage in, any\nsolicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE;\n(iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended\n(the “Exchange Act”)) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with\nothers, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose any\nintention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or\nencourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. You\nfurther agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of\nCOMVERGE, take\nany action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination,\nmerger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any\nother person or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement (approved by\nthe Board of Directors of COMVERGE) to acquire more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or\nits subsidiaries representing more than 50% of the consolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing,\nand as described in Section 14, nothing in this section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a\npublic investor in COMVERGE, so long as such transactions do not violate the applicable United States securities laws. Furthermore, for avoidance\nof doubt, both Parties agree that the purpose of the Transaction is for H.I.G. to submit a proposal to COMVERGE regarding a possible transaction.\nAccordingly, until informed in writing by COMVERGE otherwise, H.I.G. may propose potential transactions to COMVERGE without violating any\nof the restrictions set forth above in this section.\n10. Non Solicit. For two years from the date hereof, you will not, directly or indirectly solicit for employment or hire any officer, director, or\nother key employees (to be specified in writing by COMVERGE) of COMVERGE or any of its subsidiaries or divisions with whom you have had\ncontact or who became known to you in connection with your consideration of the Transaction, except that you shall not be precluded from hiring\nany such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any\npublic advertisement or non- directed search, or (iii) was terminated by COMVERGE. For avoidance of doubt, the provisions of this section shall\nnot apply to any portfolio companies of H.I.G. so long as H.I.G. does not share Confidential Information with its portfolio companies.\n11. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for a\nperiod of two (2) years after the date hereof.\n12. No Waiver. No failure or delay by COMVERGE in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor\nshall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder.\n13. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both\nParties hereto.\n14. Other Transactions. COMVERGE acknowledges and understands that H.I.G. and its Representatives may or in the future evaluate, invest\nin or do business with competitors or potential competitors of COMVERGE. Neither the execution of this Agreement nor receipt of Confidential\nInformation shall in any way restrict or preclude such activities. Moreover, notwithstanding any provision of this Agreement to the contrary, this\nAgreement shall not limit, restrict or impair H.I.G.’s ability or the ability of is Representatives to engage in transactions with respect to securities,\nbank debt, instruments and interests of COMVERGE or any other person or entity, so long as such transactions do not violate applicable United\nStates securities laws.\n15. Applicability to Affiliated Parties. Any information disclosed to H.I.G. by any of COMVERGE's affiliates or by any company, person or\nother entity participating with COMVERGE,\nin any consortium, partnership, joint venture or similar business combination in direct connection with the Transaction, which would otherwise\nconstitute Confidential Information hereunder if disclosed by COMVERGE, shall be deemed to constitute Confidential Information under this\nAgreement. For purposes of this agreement, an “affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, is\ncontrolled by, or is under common control with, such entity.\n16.  Attorneys’ Fees. Should COMVERGE or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an\naction at law or in equity to enforce any of the terms or conditions of this Agreement the non-prevailing party (as determined in a final,\nnonappealable judicial opinion) shall reimburse the prevailing Party or any such beneficiary for all reasonable attorneys’ fees and costs incurred\npursuing such proceeding.\n \n17.  Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed, interpreted and enforced in accordance with\nthe laws of the State of Georgia, without giving effect to its principles or rules regarding conflicts of laws.\n \n18.  Party Status. This Agreement is neither intended to create, nor shall it be construed as creating, (i) a joint venture, partnership or other\nform of business association between the Parties, (ii) an obligation to buy or sell products using or incorporating the Proprietary Information, (iii) an\nimplied or express license grant from either Party to the other, (iv) any obligation to continue discussions or negotiations with respect to any\npotential agreement between the Parties or (v) an agreement to enter into any agreement.\n19.  Severability. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any\nrespect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible; provided however, that the\nintention and essence of this Agreement may still be accomplished and satisfied.\n20. Disclosure. H.I.G. will notify COMVERGE in writing promptly upon the occurrence of any unauthorized release of Proprietary\nInformation or breach of this Agreement of which it is aware.\n21. Warranty Matters. THE PARTIES HERETO AGREE THAT NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE\nGIVEN BY THE ORIGINATING PARTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER,\nINCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF\nTRADE, FITNESS FOR A PARTICULAR PURPOSE OR DESIGN.\n22. Miscellaneous. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding\non, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in one or more counterpart originals,\neach of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding.\nThis Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and\nunderstandings between the Parties relating to the Transaction. It is understood that the terms of access by H.I.G. or its Representatives to\nConfidential Information in connection with the Transaction contained in any data room or website shall be superseded by the understandings and\nagreements contained herein.\n23. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of H.I.G.’s portfolio companies, investment professionals\nor affiliated investment funds that do not receive Confidential Information hereunder\nIN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above\nwritten.\nCOMVERGE, INC.\n/s/ David Mathieson\nPrinted Name: David Mathieson\nTitle: Executive Vice President & Chief Financial Officer\nH.I.G. MIDDLE MARKET, LLC\n/s/ Joe Zulli\nPrinted Name: Joe Zulli\nTitle: Principal	EX-99.(D)(9) 8 d333885dex99d9.htm EX-99.(D)(9\nExhibit 99.(d)(9)\nNON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is made as of the 15th day of November, 2011 by and between COMVERGE, Inc., a corporation organized under the\nlaws of Delaware ("COMVERGE") and H.I.G. Middle Market, LLC, a company located at 1450 Brickell Avenue, 3lst Floor, Miami, FL 33131\n("H.I.G."). COMVERGE and H.I.G. are individually referred to as a "Party" and collectively referred to as the "Parties".\nWHEREAS, COMVERGE will provide financial information and strategic operating plans, including drafts of financial projections, budgets\nand due diligence to H.I.G. and its Representatives (as defined below) for the purpose of H.I.G. making a potential investment in COMVERGE (the\n"Transaction"); and\nWHEREAS, COMVERGE will provide confidential and proprietary information and materials to H.I.G. and H.I.G. shall keep such\ninformation confidential.\nNOW THEREFORE, the Parties agree as follows:\n1.\nConfidential Information Defined. The Parties acknowledge that, in the course of the Transaction, it is anticipated that H.I.G. and its\nRepresentatives will receive certain non-public and confidential information, from or about COMVERGE, including, but not limited to financing\ninformation, operating budgets, strategic business plan documents, product and services offerings, software platform or any other confidential and\nproprietary information relating to the Transaction or COMVERGE. All such financial information and term sheets supplied by COMVERGE or its\nrepresentatives are hereinafter called the "Confidential Information" The term "Confidential Information" as used herein also includes the\nTransaction itself and any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence,\nfacts or other materials derived or produced by COMVERGE or its representatives for each other which contain or otherwise reflect confidential or\nproprietary information provided or developed by COMVERGE in connection with the Transaction, or any other information which H.I.G. knows or\nreasonably ought to know is confidential or proprietary information of COMVERGE. Any Confidential Information supplied in connection with the\nTransaction by COMVERGE prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment\nas the Confidential Information made available hereunder after the execution of this Agreement. For the purposes of this Agreement,\n"Representatives" of H.I.G. shall include its employees, officers, directors, financial advisors, staff agents, financing sources, representatives,\nconsultants, advisors or members of any Investment Review or similar committees, but only to the extent such parties receive Confidential\nInformation and excluding, in each case, any portfolio companies.\n2. Exclusions from Definition. The term "Confidential Information" as used herein does not include any data or information which the\nreceiving Party can demonstrate: (a) is already known to the receiving Party on a nonproprietary basis at the time it is disclosed to the receiving\nParty; (b) is or becomes generally known to the public through no wrongful act of the receiving Party or its representatives in violation of this\nAgreement; (c) has been rightfully received by the receiving Party from a third party without restriction on disclosure and without, to H.I.G.'s\nknowledge, a breach of an obligation of confidentiality running directly to the providing Party, if any; (d) has been approved for public release by\nwritten authorization by the originating Party; or (e) was developed independently by H.I.G. or its Representatives without use of the Confidentia\nInformation.\n3. Non-disclosure Obligation. H.J.G. shall keep the Confidential Information confidential and shall not disclose such Confidential Information,\nin whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with H.I.G.' S\nevaluation, negotiation and potential consummation of the Transaction, except with the prior written consent of COMVERGE or as otherwise\npermitted hereunder. The Confidential Information shall be used by H.I.G. solely for the purpose of evaluating the Transaction, and shall not be\notherwise used without COMVERGE'S prior written consent. H.I.G. agrees that it may disclose the Confidential Information only to those of its\nRepresentatives who need to know the Confidential Information for the purpose of assisting the Parties in connection with the Transaction. Prior to\ndisseminating any of the Confidential Information to any agent and/or representative permitted herein, H.I.G. shall advise its Representative of the\nconfidential nature of the Confidential Information, and shall require such Representative to agree to maintain the confidentiality of the Confidential\nInformation and to be bound by terms of confidentiality at least as restrictive as the terms of this Agreement. Additionally, except as required by law,\nneither Party shall, and each Party shall direct its representatives to not, disclose to any person (i) the fact that Confidential Information has been\nmade available to H.I.G. and its Representatives, (ii) the fact that the Parties are in discussions regarding the Transaction, or (iii) the terms and\nconditions of such discussions, including the status thereof.\n4.\nNo Export. H.I.G. will not export, directly or indirectly, any Confidential information acquired from COMVERGE pursuant to this\nAgreement, or any product utilizing such Confidential information, to any country, or any company located in any country, for which the U.S.\nGovernment or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining written\nconsent from COMVERGE and the appropriate license.\n5. Standard of Protection. For the purpose of complying with the obligations set forth herein, H.I.G. shall use a reasonable standard of care, no\nless than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.\n6. Compliance with Legal Process In the event that H.I.G. or its Representatives is legally requested or required (by oral questions,\ninterrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or by applicable statutes, regulations\nor laws, including but not limited to the rules of any securities trading exchange or securities quotation system, or applicable professional standards\nof the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or\nobligations thereunder, to disclose any Confidential Information, H.I.G. shall, to the extent practicable and permitted by law, promptly notify\nCOMVERGE of such request or requirement prior to disclosure so that COMVERGE may seek an appropriate protective order and/or waive\ncompliance with the terms of this Agreement. For the avoidance of doubt, any disclosure made pursuant to this paragraph shall not be in breach of\nthis Agreement.\n7. Ownership; Return of Information. Except as may otherwise set forth in a written agreement between the parties relating to the Transaction,\nall Confidential Information (including tangible copies and computerized or electronic versions thereof and also all Confidential Information\ncontained in all deliverables and work papers), including all intellectual property rights pertaining\n2\nthereto, shall be the property of COMVERGE. No later than ten (10) business days following the receipt of a written request from COMVERGE,\nH.I.G. shall destroy or deliver to COMVERGE all Confidential Information, together with a certificate executed by the agent and/or representative\nor principal of H.I.G. confirming that all such materials in H.I.G.'s possession or control have been delivered to COMVERGE or destroyed, except\nas permitted herein. Notwithstanding the foregoing, H.I.G. and its Representatives may retain (i) any electronic or written copies of Confidential\nInformation as may be stored on its electronic records storage system as a result of automated backup systems or as may be otherwise required by\nlaw, other regulatory requirements, or internal document retention policies, provided that any such Confidential Information remains subject to this\nAgreement; and (ii) a single confidential copy of all Confidential Information which may be retained by H.I.G.'s internal legal counsel for the sole\npurpose of prosecuting or defending any matters which may arise from or relate to this Agreement.\n8.\nRemedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this\nAgreement and that the originating Party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to\nremedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this\nAgreement, but shall be in addition to all other rights and remedies available at law or in equity, except as provided herein. Except in the event of\ngross negligence or willful misconduct, neither Party shall be liable for any consequential, indirect, punitive or special losses or damages (including,\nbut not limited to, lost profits, lost earnings and loss of production) incurred by the other Party in connection with such Party's performance or\nfailure to perform any of its obligations under this Agreement, or the breach of any representation, warranty or other obligation hereunder, whether\nexpressed or implied and whether such damages are claimed under breach of warranty, breach of contract, tort, or other theory or cause of action at\nlaw or in equity.\n9.\nStandstill Period. H.I.G. acknowledges that, in its examination of the Confidential Information, you may have access to material non-public\ninformation concerning COMVERGE. You agree that, for a period of one year following the date of this agreement (the "Standstill Period"), you\nwill not, directly or indirectly, without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree\nto\nacquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE any warrant or\noption to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other\nthan with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination,\nrecapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in any way participate or engage in, any\nsolicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE;\n(iv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended\n(the "Exchange Act")) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with\nothers, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose\nany\nintention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or\nencourage\nor enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing.\nYou\nfurther agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of\nCOMVERGE, take\n3\nany action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination,\nmerger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any\nother person or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement (approved by\nthe Board of Directors of COMVERGE) to acquire more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or\nits subsidiaries representing more than 50% of the consolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing,\nand as described in Section 14, nothing in this section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a\npublic investor in COMVERGE, so long as such transactions do not violate the applicable United States securities laws. Furthermore, for avoidance\nof doubt, both Parties agree that the purpose of the Transaction is for H.I.G. to submit a proposal to COMVERGE regarding a possible transaction.\nAccordingly, until informed in writing by COMVERGE otherwise, H.I.G. may propose potential transactions to COMVERGE without violating any\nof the restrictions set forth above in this section.\n10. Non Solicit. For two years from the date hereof, you will not, directly or indirectly solicit for employment or hire any officer, director, or\nother key employees (to be specified in writing by COMVERGE) of COMVERGE or any of its subsidiaries or divisions with whom you have had\ncontact or who became known to you in connection with your consideration of the Transaction, except that you shall not be precluded from hiring\nany such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any\npublic advertisement or non- directed search, or (iii) was terminated by COMVERGE. For avoidance of doubt, the provisions of this section shall\nnot apply to any portfolio companies of H.I.G. so long as H.I.G. does not share Confidential Information with its portfolio companies.\n11. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for\na\nperiod of two (2) years after the date hereof.\n12. No Waiver. No failure or delay by COMVERGE in exercising any right, power or privilege hereunder shall operate as a waiver thereof,\nnor\nshall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder.\n13. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both\nParties hereto.\n14. Other Transactions COMVERGE acknowledges and understands that H.I.G. and its Representatives may or in the future evaluate, invest\nin\nor\ndo business with competitors or potential competitors of COMVERGE. Neither the execution of this Agreement nor receipt of Confidential\nInformation shall in any way restrict or preclude such activities. Moreover, notwithstanding any provision of this Agreement to the contrary, this\nAgreement shall not limit, restrict or impair H.I.G.'s ability or the ability of is Representatives to engage in transactions with respect to securities,\nbank debt, instruments and interests of COMVERGE or any other person or entity, so long as such transactions do not violate applicable United\nStates securities laws.\n15. Applicability to Affiliated Parties. Any information disclosed to H.I.G. by any of COMVERGE'S affiliates or by any company, person or\nother entity participating with COMVERGE,\n4\nin any consortium, partnership, joint venture or similar business combination in direct connection with the Transaction, which would otherwise\nconstitute Confidential Information hereunder if disclosed by COMVERGE, shall be deemed to constitute Confidential Information under this\nAgreement. For purposes of this agreement, an "affiliate" means an entity that directly or indirectly through one or more intermediaries, controls, is\ncontrolled by, or is under common control with, such entity.\n16.\nAttorneys' Fees. Should COMVERGE or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an\naction at law or in equity to enforce any of the terms or conditions of this Agreement the non-prevailing party (as determined in a final,\nnonappealable judicial opinion) shall reimburse the prevailing Party or any such beneficiary for all reasonable attorneys' fees and costs incurred\npursuing such proceeding.\n17. Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed, interpreted and enforced in accordance with\nthe laws of the State of Georgia, without giving effect to its principles or rules regarding conflicts of laws.\n18. Party. Status. This Agreement is neither intended to create, nor shall it be construed as creating, (i) a joint venture, partnership or other\nform of business association between the Parties, (ii) an obligation to buy or sell products using or incorporating the Proprietary Information, (iii) an\nimplied or express license grant from either Party to the other, (iv) any obligation to continue discussions or negotiations with respect to any\npotential agreement between the Parties or (v) an agreement to enter into any agreement.\n19. Severability.. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any\nrespect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible; provided however, that the\nintention and essence of this Agreement may still be accomplished and satisfied.\n20. Disclosure H.I.G. will notify COMVERGE in writing promptly upon the occurrence of any unauthorized release of Proprietary\nInformation or breach of this Agreement of which it is aware.\n21. Warranty. Matters. THE PARTIES HERETO AGREE THAT NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE\nGIVEN BY THE ORIGINATING PARTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER,\nINCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF\nTRADE, FITNESS FOR A PARTICULAR PURPOSE OR DESIGN.\n22. Miscellaneous. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding\non, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in one or more counterpart originals,\neach of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding.\nThis Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and\nunderstandings between the Parties relating to the Transaction. It is understood that the terms of access by H.I.G. or its Representatives to\nConfidential Information in connection with the Transaction contained in any data room or website shall be superseded by the understandings and\nagreements contained herein.\n5\n23. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of H.I.G.'s portfolio companies, investment professionals\nor affiliated investment funds that do not receive Confidential Information hereunder\nIN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above\nwritten.\nCOMVERGE, INC.\n/s/ David Mathieson\nPrinted Name: David Mathieson\nTitle: Executive Vice President & Chief Financial Officer\nH.I.G. MIDDLE MARKET, LLC\n/s/ Joe Zulli\nPrinted Name: Joe Zulli\nTitle: Principal\n6	EX-99.(D)(9) 8 d333885dex99d9.htm EX-99.(D)(9)\nExhibit 99.(d)(9)\nNON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is made as of the 15th day of November, 2011 by and between COMVERGE, Inc., a corporation organized under the\nlaws of Delaware (“COMVERGE”) and H.I .G . Middle Market, LLC, a company located at 1450 Brickell Avenue, 3l Floor, Miami, FL 33131\n(“H.I.G .”). COMVERGE and H.I .G. are individually referred to as a “Party” and collectively referred to as the “Parties”.\nWHEREAS, COMVERGE will provide financial information and strategic operating plans, including drafts of financial projections, budgets\nand due diligence to H.I.G . and its Representatives (as defined below) for the purpose of H.I .G. making a potential investment in COMVERGE (the\n“Transaction”); and\nWHEREAS, COMVERGE will provide confidential and proprietary information and materials to H.I.G . and H.I .G . shall keep such\ninformation confidential.\nNOW THEREFORE, the Parties agree as follows:\n1. Confidential Information Defined. The Parties acknowledge that, in the course of the Transaction, it is anticipated that H.I.G . and its\nRepresentatives will receive certain non-public and confidential information, from or about COMVERGE, including, but not limited to financing\ninformation, operating budgets, strategic business plan documents, product and services offerings, software platform or any other confidential and\nproprietary information relating to the Transaction or COMVERGE. All such financial information and term sheets supplied by COMVERGE or its\nrepresentatives are hereinafter called the “Confidential Information”. The term “Confidential Information” as used herein also includes the\nTransaction itself and any information, work papers, analyses, compilations, projections, studies, documents, terms, conditions, correspondence,\nfacts or other materials derived or produced by COMVERGE or its representatives for each other which contain or otherwise reflect confidential or\nproprietary information provided or developed by COMVERGE in connection with the Transaction, or any other information which H.I.G. knows or\nreasonably ought to know is confidential or proprietary information of COMVERGE. Any Confidential Information supplied in connection with the\nTransaction by COMVERGE prior to the execution of this Agreement shall be considered in the same manner and be subject to the same treatment\nas the Confidential Information made available hereunder after the execution of this Agreement. For the purposes of this Agreement,\n“Representatives” of H.I .G. shall include its employees, officers, directors, financial advisors, staff agents, financing sources, representatives,\nconsultants, advisors or members of any Investment Review or similar committees, but only to the extent such parties receive Confidential\nInformation and excluding, in each case, any portfolio companies.\n2. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which the\nreceiving Party can demonstrate: (a) is already known to the receiving Party on a nonproprietary basis at the time it is disclosed to the receiving\nParty; (b) is or becomes generally known to the public through no wrongful act of the receiving Party or its representatives in violation of this\nAgreement; (c) has been rightfully received by the receiving Party from a third party without restriction on disclosure and without, to H.I .G.’s\nknowledge, a breach of an obligation of confidentiality running directly to the providing Party, if any; (d) has been approved for public release by\nwritten authorization by the originating Party; or (e ) was developed independently by H.I .G. or its Representatives without use of the Confidential\nInformation.\nst\n3. Non-disclosure Obligation. H.J .G . shall keep the Confidential Information confidential and shall not disclose such Confidential Information,\nin whole or in part, to any person other than its Representatives who need to know such Confidential Information in connection with H.I.G .’ S\nevaluation, negotiation and potential consummation of the Transaction, except with the prior written consent of COMVERGE or as otherwise\npermitted hereunder. The Confidential Information shall be used by H.I .G. solely for the purpose of evaluating the Transaction, and shall not be\notherwise used without COMVERGE’s prior written consent. H.I .G. agrees that it may disclose the Confidential Information only to those of its\nRepresentatives who need to know the Confidential Information for the purpose of assisting the Parties in connection with the Transaction. Prior to\ndisseminating any of the Confidential Information to any agent and/or representative permitted herein, H.I.G. shall advise its Representative of the\nconfidential nature of the Confidential Information, and shall require such Representative to agree to maintain the confidentiality of the Confidential\nInformation and to be bound by terms of confidentiality at least as restrictive as the terms of this Agreement. Additionally, except as required by law,\nneither Party shall, and each Party shall direct its representatives to not, disclose to any person (i) the fact that Confidential Information has been\nmade available to H.I.G . and its Representatives, (ii) the fact that the Parties are in discussions regarding the Transaction, or (iii) the terms and\nconditions of such discussions, including the status thereof.\n4. No Export. H.I.G . will not export, directly or indirectly, any Confidential information acquired from COMVERGE pursuant to this\nAgreement, or any product utilizing such Confidential information, to any country, or any company located in any country, for which the U.S .\nGovernment or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining written\nconsent from COMVERGE and the appropriate license.\n5. Standard of Protection. For the purpose of complying with the obligations set forth herein, H.I .G . shall use a reasonable standard of care, no\nless than efforts commensurate with those that it employs for the protection of its own confidential and sensitive information.\n6. Compliance with Legal Process. In the event that H.I .G. or its Representatives is legally requested or required (by oral questions,\ninterrogatories, requests for information or documents, subpoena, civil investigative demand or similar process or by applicable statutes, regulations\nor laws, including but not limited to the rules of any securities trading exchange or securities quotation system, or applicable professional standards\nof the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or\nobligations thereunder, to disclose any Confidential Information, H.I.G . shall, to the extent practicable and permitted by law, promptly notify\nCOMVERGE of such request or requirement prior to disclosure so that COMVERGE may seek an appropriate protective order and/or waive\ncompliance with the terms of this Agreement. For the avoidance of doubt, any disclosure made pursuant to this paragraph shall not be in breach of\nthis Agreement.\n7. Ownership; Return of Information. Except as may otherwise set forth in a written agreement between the parties relating to the Transaction,\nall Confidential Information (including tangible copies and computerized or electronic versions thereof and also all Confidential Information\ncontained in all deliverables and work papers), including all intellectual property rights pertaining\n2\nthereto, shall be the property of COMVERGE. No later than ten (10) business days following the receipt of a written request from COMVERGE,\nH.I .G. shall destroy or deliver to COMVERGE all Confidential Information, together with a certificate executed by the agent and/or representative\nor principal of H.I.G . confirming that all such materials in H.I.G .’s possession or control have been delivered to COMVERGE or destroyed, except\nas permitted herein. Notwithstanding the foregoing, H.I .G. and its Representatives may retain (i) any electronic or written copies of Confidential\nInformation as may be stored on its electronic records storage system as a result of automated backup systems or as may be otherwise required by\nlaw, other regulatory requirements, or internal document retention policies, provided that any such Confidential Information remains subject to this\nAgreement; and (ii) a single confidential copy of all Confidential Information which may be retained by H.I.G.’s internal legal counsel for the sole\npurpose of prosecuting or defending any matters which may arise from or relate to this Agreement.\n8. Remedies for Breach. The Parties understand and agree that money damages may not be a sufficient remedy for any breach of this\nAgreement and that the originating Party shall be entitled, without posting bond or other security, to seek injunctive or other equitable relief to\nremedy or forestall any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for any breach of this\nAgreement, but shall be in addition to all other rights and remedies available at law or in equity, except as provided herein. Except in the event of\ngross negligence or willful misconduct, neither Party shall be liable for any consequential, indirect, punitive or special losses or damages (including,\nbut not limited to, lost profits, lost earnings and loss of production) incurred by the other Party in connection with such Party’s performance or\nfailure to perform any of its obligations under this Agreement, or the breach of any representation, warranty or other obligation hereunder, whether\nexpressed or implied and whether such damages are claimed under breach of warranty, breach of contract, tort, or other theory or cause of action at\nlaw or in equity.\n9. Standstill Period. H .I.G. acknowledges that, in its examination of the Confidential Information, you may have access to material non-public\ninformation concerning COMVERGE. You agree that, for a period of one year following the date of this agreement (the “Standstill Period”), you\nwill not, directly or indirectly, without the prior written consent of the majority of the Board of Directors of COMVERGE, (i) acquire, agree to\nacquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any securities or assets of COMVERGE , any warrant or\noption to purchase such securities or assets, any security convertible into any such securities, or any other right to acquire such securities, (ii) other\nthan with respect to the Transaction, enter, agree to enter, propose, seek or offer to enter into or facilitate any merger, business combination,\nrecapitalization, restructuring or other extraordinary transaction involving COMVERGE, (iii) make, or in any way participate or engage in, any\nsolicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of, any voting securities of COMVERGE;\n(iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended\n(the “Exchange Act”)) with respect to any voting securities of COMVERGE, (v) call, request the calling of, or otherwise act, alone or in concert with\nothers, to seek to control or influence the management or the policies of COMVERGE, (vi) other than with respect to the Transaction, disclose any\nintention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (vii) except as permitted in the Agreement, advise, assist or\nencourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing. You\nfurther agree that during the Standstill Period you will not directly or indirectly, without the prior written consent of the Board of Directors of\nCOMVERGE, take\n3\nany action that to your knowledge might require COMVERGE to make a public announcement regarding the possibility of a business combination,\nmerger or other type of transaction described in this paragraph. The provisions of this paragraph shall be inoperative and of no force or effect if any\nother person or group (as defined in Section 13(d)(3) of the Exchange Act) shall have acquired or entered into a definitive agreement (approved by\nthe Board of Directors of COMVERGE) to acquire more than 50% of the outstanding voting securities of COMVERGE or assets of COMVERGE or\nits subsidiaries representing more than 50% of the consolidated earning power of COMVERGE and its subsidiaries. Notwithstanding the foregoing,\nand as described in Section 14, nothing in this section shall preclude H.I.G. from acquiring securities of COMVERGE in the public markets as a\npublic investor in COMVERGE, so long as such transactions do not violate the applicable United States securities laws. Furthermore, for avoidance\nof doubt, both Parties agree that the purpose of the Transaction is for H.I .G. to submit a proposal to COMVERGE regarding a possible transaction.\nAccordingly, until informed in writing by COMVERGE otherwise, H.I .G. may propose potential transactions to COMVERGE without violating any\nof the restrictions set forth above in this section.\n10. Non Solicit. For two years from the date hereof, you will not, directly or indirectly solicit for employment or hire any officer, director, or\nother key employees (to be specified in writing by COMVERGE) of COMVERGE or any of its subsidiaries or divisions with whom you have had\ncontact or who became known to you in connection with your consideration of the Transaction, except that you shall not be precluded from hiring\nany such employee who (i) initiates discussions regarding such employment without any direct or indirect solicitation by you, (ii) responds to any\npublic advertisement or non- directed search, or (iii) was terminated by COMVERGE. For avoidance of doubt, the provisions of this section shall\nnot apply to any portfolio companies of H.I.G . so long as H.I .G. does not share Confidential Information with its portfolio companies.\n11. Term, Termination. This Agreement shall be in effect as of the date first set forth above, and shall continue in full force and effect for a\nperiod of two (2) years after the date hereof.\n12. No Waiver. No failure or delay by COMVERGE in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor\nshall any single or partial exercise thereof, preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder.\n13. Amendment. This Agreement may not be modified, supplemented or amended orally, but only by a written document signed by both\nParties hereto.\n14. Other Transactions. COMVERGE acknowledges and understands that H.I .G. and its Representatives may or in the future evaluate, invest\nin or do business with competitors or potential competitors of COMVERGE. Neither the execution of this Agreement nor receipt of Confidential\nInformation shall in any way restrict or preclude such activities. Moreover, notwithstanding any provision of this Agreement to the contrary, this\nAgreement shall not limit, restrict or impair H.I .G.’s ability or the ability of is Representatives to engage in transactions with respect to securities,\nbank debt, instruments and interests of COMVERGE or any other person or entity, so long as such transactions do not violate applicable United\nStates securities laws.\n15. Applicability to Affiliated Parties. Any information disclosed to H.I .G. by any of COMVERGE’s affiliates or by any company, person or\nother entity participating with COMVERGE,\n4\nin any consortium, partnership, joint venture or similar business combination in direct connection with the Transaction, which would otherwise\nconstitute Confidential Information hereunder if disclosed by COMVERGE, shall be deemed to constitute Confidential Information under this\nAgreement. For purposes of this agreement, an “affiliate” means an entity that directly or indirectly through one or more intermediaries, controls, is\ncontrolled by, or is under common control with, such entity.\n16. Attorneys’ Fees. Should COMVERGE or any beneficiary of this Agreement find it necessary to employ legal counsel and bring an\naction at law or in equity to enforce any of the terms or conditions of this Agreement the non-prevailing party (as determined in a final,\nnonappealable judicial opinion) shall reimburse the prevailing Party or any such beneficiary for all reasonable attorneys’ fees and costs incurred\npursuing such proceeding.\n17. Governing Law, Jurisdiction, Venue. This Agreement shall be governed by and construed, interpreted and enforced in accordance with\nthe laws of the State of Georgia, without giving effect to its principles or rules regarding conflicts of laws.\n18. Party Status. This Agreement is neither intended to create, nor shall it be construed as creating, (i) a joint venture, partnership or other\nform of business association between the Parties, (ii) an obligation to buy or sell products using or incorporating the Proprietary Information, (iii) an\nimplied or express license grant from either Party to the other, (iv) any obligation to continue discussions or negotiations with respect to any\npotential agreement between the Parties or (v) an agreement to enter into any agreement.\n19. Severability. In the event any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any\nrespect, the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent possible; provided however, that the\nintention and essence of this Agreement may still be accomplished and satisfied.\n20. Disclosure. H .I.G. will notify COMVERGE in writing promptly upon the occurrence of any unauthorized release of Proprietary\nInformation or breach of this Agreement of which it is aware.\n21. Warranty Matters. THE PARTIES HERETO AGREE THAT NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE\nGIVEN BY THE ORIGINATING PARTY WITH RESPECT TO THE CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER,\nINCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COURSE OF DEALING, USAGE OF\nTRADE, FITNESS FOR A PARTICULAR PURPOSE OR DESIGN.\n22. Miscellaneous. This Agreement may not be assigned by either Party without the prior written consent of the other and shall be binding\non, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be signed in one or more counterpart originals,\neach of which shall constitute an original document. The Parties agree that this Agreement can be executed via facsimile signatures and be binding.\nThis Agreement represents the entire understanding and agreement of the Parties and supersedes all prior communications, agreements and\nunderstandings between the Parties relating to the Transaction. It is understood that the terms of access by H.I .G. or its Representatives to\nConfidential Information in connection with the Transaction contained in any data room or website shall be superseded by the understandings and\nagreements contained herein.\n5\n23. Nothing in this Agreement shall be binding upon, or restrict the activities of, any of H.I .G.’s portfolio companies, investment professionals\nor affiliated investment funds that do not receive Confidential Information hereunder\nIN WITNESS WHEREOF, the parties have executed and delivered this Non-Disclosure Agreement effective as of the date first above\nwritten.\nCOMVERGE, INC.\n/s/ David Mathieson\nPrinted Name: David Mathieson\nTitle: Executive Vice President & Chief Financial Officer\nH.I .G . MIDDLE MARKET, LLC\n/s/ Joe Zulli\nPrinted Name: Joe Zulli\nTitle: Principal\n6
+deeb33574e53e94f86a884caaa952350.pdf	effective_date jurisdiction party	EX-10 .19 3 l98998aexv10w19.txt EX-10.19 EMPLOYMENT AGREEMENT AND UNDERTAKING Exhibit 10.19 EMPLOYMENT AGREEMENT AND\nUNDERTAKING OF CONFIDENTIALITY In consideration of their mutual promises and agreements and subject to the terms and conditions set forth below in this\nEmployment Agreement and Undertaking of Confidentiality ("Agreement"), National Processing Company ("NPC") and Mark Pyke ("Employee") hereby agree as\nfollows: 1. NPC agrees to employ Employee in the position of Vice President, Finance, Bankcard Division and at the salary of One Hundred Five Thousand and\nNo/100 Dollars ($105,000 .00), and to make available to Employee those benefits provided by NPC to employees with similar responsibilities, all as amended from\ntime to time, upon the terms and conditions set forth below. As additional consideration for the mutual promises and agreements set forth herein, NPC agrees to\npay Employee the sum of Fifty Thousand Dollars and No/100 Dollars ($50,000 .00), contemporaneous with the execution of this Agreement. 2. NPC agrees that\nEmployee shall be eligible to participate in NPC's Short Term Incentive Plan with a guaranteed Bonus of Twenty-Five Thousand and No/100 ($25,000 .00)\npayable in March, 1997 . 3. Employee agrees to use his best efforts to perform the duties assigned to him by NPC. 4. Employee acknowledges and agrees that in\nthe performance of his duties of employment he may be brought into frequent contact with clients and potential clients of NPC either in person, through the mails,\nby telephone or by other electronic means. Employee also acknowledges and agrees that trade secrets and confidential information of NPC, more fully described\nin paragraph 14 of this Agreement, gained by Employee during his employment with NPC, have been developed by NPC through substantial expenditures of\ntime, effort and financial resources and constitute valuable and unique property of NPC. Employee further understands, acknowledges and agrees that the\nforegoing makes it necessary for the protection of NPC's business that Employee not compete with NPC during the term of his employment and for a reasonable\nperiod thereafter. 5 . Employee agrees that he will not, during his employment, compete with NPC within the continental United States. Employee agrees that, in\naccordance with this restriction, but without limiting its terms, he will not during the term of his employment: (i) enter into or engage in any business that competes\nwith NPC's Business; or (ii) solicit any customers, clients, business, patronage or orders for, or sell any services in competition with, or for any business that\ncompetes with NPC's Business; or (iii) divert, entice, or take away any customers, clients, business, patronage or orders of NPC, or attempt to do so; or (iv)\npromote or assist, financially or otherwise, any person, firm, association or corporation engaged in any business that competes with NPC's Business. 6.\nEmployee agrees that, within the continental United States, he will not, for a period of two (2) years following the termination of his employment, enter into or\nengage in any business that competes with NPC's Business. 7 . Employee agrees that, within the continental United States, he will not, for a period of two (2)\nyears following the termination of his employment, solicit customers, clients, business, patronage, or orders for, or sell any services in competition with NPC's\nBusiness. 8. Employee agrees that, within the continental United States, he will not, for a period of two (2) years following the termination of his employment,\ndivert, entice, or otherwise take away any customers, clients, business or orders of NPC or attempt to do so. 9. Employee agrees that, within the continental\nUnited States, he will not, for a period of two (2) years following the termination of his employment, promote or assist financially or otherwise, any person, firm,\nassociation, partnership, corporation, or other entity engaged in any business that competes with NPC's Business. 10. For the purposes of paragraphs 5 through\n9, inclusive, Employee understands and agrees that he will be competing if he engages in any or all of the activities set forth therein directly as an individual on\nhis own account, or indirectly as a partner, joint venturer, employee, agent, salesman, consultant, officer and/or director of any firm or corporation, or as a\nstockholder of any corporation in which Employee or Employee's spouse, child or parent owns, directly or indirectly, individually or in the aggregate, more than\nten percent (10%) of the outstanding stock. 11. For the purposes of paragraphs 5 through 9, inclusive, and 15, NPC's Business is defined as the acquisition and\nprocessing of credit and debit card transactions accepted by merchants at the point of sale. 12 . If it shall be judicially determined that Employee has violated any\nof his obligations under paragraphs 5 through 9, inclusive, then the period applicable to the obligation which Employee shall have been determined to have\nviolated shall automatically be extended by a period of time equal in length to the period during which said violation(s) occurred. 13. Employee agrees that he will\nnot directly or indirectly at any time solicit or induce or attempt to solicit or induce any employee of NPC to terminate his employment, representation or other\nassociation with NPC. 14. Employee will keep in strict confidence, and will not, directly or indirectly, at any time during or after his employment, disclose, furnish,\ndisseminate, make available or use (except in the course of performing his duties of employment hereunder) any trade secrets or confidential business and\ntechnical information of NPC or its customers or clients, without limitation as to when or how Employee may have acquired such information. Such confidential\ninformation shall include, the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, pattern, compilation,\nprogram, device, method, technique or improvement, or any business information or plans, financial information, or listing of names, addresses or telephone\nnumbers, including without limitation, information relating to any of NPC's customers or prospective customers, NPC's customer lists, contract information\nincluding terms, pricing and services provided, information received as a result of customer contacts, NPC's products and processing capabilities, methods of\noperation, business plans, financials or strategy, and agreements to which NPC may be a party. Employee specifically acknowledges that such information,\nwhether reduced to writing or maintained in the mind or memory of Employee and whether compiled by NPC and/or Employee, derive independent economic\nvalue from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable\nefforts have been put forth by NPC to maintain the secrecy of such information, that such information is the sole property of NPC and that any retention and use\nof such information during or after his employment with NPC (except in the course of performing his duties of employment hereunder) shall constitute a\nmisappropriation of NPC's trade secrets. Employee further agrees that, at the time of termination of his employment, he will return to NPC, in good condition, all\nproperty of NPC, including, without limitation, the information identified above. In the event that said items are not so returned, NPC shall have the right to charge\nEmployee for all reasonable damages, costs, attorney's fees and other expenses incurred in searching for, taking, removing, and/or recovering such property. 15 .\nDuring his employment and for two (2) years thereafter, Employee agrees to communicate the contents of this Agreement to any person, firm, association, or\ncorporation that he intends to be employed by, associated with, or represent, that is engaged in a business that is competitive to NPC's Business. 16. Employee\nacknowledges and agrees that the remedy at law available to NPC for breach of any of Employee's obligations under this Agreement would be inadequate, and\nagrees and consents that in addition to any other rights or remedies that NPC may have at law or in equity, temporary and permanent injunctive relief may be\ngranted in any proceeding that may be brought to enforce any provision contained in paragraphs 5 through 9, inclusive, of this Agreement, without the necessity\nof proof of actual damage. 17. Employee acknowledges that his obligations under this Agreement are reasonable in the context of the nature of NPC's business\nand the competitive injuries likely to be sustained by NPC if Employee violated such obligations. Employee further acknowledges that this Agreement is made in\nconsideration of, and is adequately supported by the obligations undertaken by NPC in paragraph 1 above, which Employee acknowledges constitutes new\nand/or good, valuable and sufficient consideration. Employee acknowledges that his employment relationship with NPC is and following the execution of this\nAgreement shall continue to be "at will," and may be terminated at any time and for any reason, or for no reason, by NPC or by Employee. However, if NPC\nterminates Employee's employment for reasons other than cause and/or violation of this Agreement, then NPC shall pay Employee an amount equal to two (2)\ntimes Employee's annual base salary at the time of termination, with said amount being paid to Employee over a twenty-four (24) month period on the same\nperiodic basis as NPC's regular payroll, so long as Employee does not violate any part of this Agreement. For the purposes of this Agreement, "Cause" is defined\nas fraud, misconduct and/or violation of NPC's employment policies. 18 . The failure of NPC to enforce any provision of this Agreement shall not be construed to\nbe a waiver of such provision or of the right of NPC thereafter to enforce each and every provision. 19. This Agreement supersedes all previous agreements,\nwritten or oral, between Employee and NPC. No modification, waiver, amendment or addition to any of the terms of this Agreement shall be effective except as\nset forth in a writing signed by Employee and NPC. 20. All provisions, terms, conditions, paragraphs, agreements and covenants ("Provisions") contained in this\nAgreement are severable and, in the event any one of them shall be held to be invalid by any competent court, this Agreement shall be interpreted as if such\nProvision was not contained herein, and such determination shall not otherwise affect the validity of any other Provision. The within provisions shall be applicable\nirrespective of whether such termination shall be by NPC or by the Employee, whether voluntary or involuntary, whether for cause or without cause, and whether\nby reason or the expiration of this or any other written or oral agreement or arrangement (or any extensions thereof) with NPC. 21. While the restrictions set forth\nherein are considered by the parties to be reasonable in all circumstances, it is recognized that restrictions of this nature may fail for reasons unforeseen, and\naccordingly it is hereby agreed and declared that if any of such restrictions shall be adjudged to be void as going beyond what is reasonable in all the\ncircumstances, but would be valid if the geographical area or temporal extent were reduced in part, or the range of activities or area dealt with thereby reduced in\nscope, the said restriction shall apply with such modification as may be necessary to make it valid and effective. 22 . This Agreement shall take effect upon\nexecution by Employee and NPC and shall be governed by, and construed in accordance with, the internal, substantive laws of the Commonwealth of Kentucky.\nEmployee agrees that the state and federal courts located in the Commonwealth of Kentucky, shall have jurisdiction in any action, suit or proceeding against\nEmployee based on or arising out of this Agreement and Employee hereby: (i) submits to the personal jurisdiction of such courts; (ii) consents to service of\nprocess in connection with any action, suit or proceeding against Employee; and (iii) waives any other requirement (whether imposed by statute, rule of court or\notherwise) with respect to personal jurisdiction, venue or service of process. Employee represents that, prior to signing this Agreement, he has read, fully\nunderstands and voluntarily agrees to the terms and conditions as stated above, that he was not coerced to sign this Agreement, that he was not under duress at\nthe time he signed this Agreement and that, prior to signing this Agreement, he had adequate time to consider entering into this Agreement, including without\nlimitation, the opportunity to discuss the terms and conditions of this Agreement, as well as its legal consequences, with an attorney of his choice. IN WITNESS\nWHEREOF, the Employee, having read and fully understood each of the foregoing provisions, has executed this Agreement as of this 4th day of March, 1996.\nEMPLOYEE: MARK PYKE /s/ Mark D. Pyke ---------------- (Signature) NATIONAL PROCESSING COMPANY By: /s/ Kurt Knipp -------------- (Signature) Title: EVP\n-- - Dated this 4th day of March, 1996	EX-10.19 3 |98998aexv10w19.txt EX-10.19 EMPLOYMENT AGREEMENT AND UNDERTAKING Exhibit 10.19 EMPLOYMENT AGREEMENT AND\nUN DE RTAKING OF CONFIDE NTIALITY In consideration of their mutual promises and agreements and subjectto the terms and conditions setforth below in this\nEmploymentAgreement and Undertaking ofConfidentiality ("Agreement"), National Processing Company ("N PC ") and Mark Pyke ("E mployee") hereby agree as\nfollows: 1. NPC agrees to employ Employee in the position ofVice President, Finance, Bankcard Division and atthe salary ofOne Hundred Five Thousand and\nNo/100 Dollars ($105,000.00), and to make available to Employee those benefits provided by NPC to employees with similar responsibilities, all as amended from\ntime to time, upon the terms and conditions set forth below. As additional consideration forthe mutual promises and agreements set forth herein, NPC agrees to\npay Employee the sum of Fifty Thousand Dollars and No/100 Dollars ($50,000.00), contemporaneous with the execution of this Agreement. 2. NPC agrees that\nEmployee shall be eligible to participate in NPC's ShortTerm Incentive Plan with a guaranteed Bonus ofTwenty-Five Thousand and No/100 ($25,000.00)\npayable in March, 1997. 3. Employee agrees to use his best efforts to perform the duties assigned to him by NPC. 4. Employee acknowledges and agrees thatin\nthe performance of his duties ofemployment he may be brought into frequent contactwith clients and potential clients of N PC either in person, through the mails,\nby telephone or by other electronic means. Employee also acknowledges and agrees thattrade secrets and confidential information of N PC, more fully described\nin paragraph 14 ofthis Agreement, gained by Employee during his employmentwith NPC, have been developed by N PC through substantial expenditures of\ntime, effort and financial resources and constitute valuable and unique property of NPC. Employee further understands, acknowledges and agrees that the\nforegoing makes it necessary for the protection of NPC '5 business that Employee not compete with N PC during the term of his employment and for a reasonable\nperiod thereafter. 5. Employee agrees that he will not, during his employment, compete with NPC within the continental United States. Employee agrees that, in\naccordance with this restriction, butwithout limiting its terms, he will notduring the term of his employment: (i) enter into or engage in any business that competes\nwith N PC '5 Business; or (ii) solicit any customers, clients, business, patronage or orders for, or sell any services in competition with, or for any business that\ncompetes with N PC's Business; or (iii) divert, entice, or take away any customers, clients, business, patronage or orders of NPC, or attempt to do so; or (iv)\npromote or assist, financially or othenNise, any person, firm, association or corporation engaged in any business thatcompetes with NPC '5 Business. 6.\nEmployee agrees that, within the continental United States, he will not, for a period of two (2) years following the termination of his employment, enter into or\nengage in any business that competes with N PC '5 Business. 7. Employee agrees that, within the continental United States, he will not, for a period of two (2)\nyears following the termination of his employment, solicitcustomers, clients, business, patronage, or orders for, or sell any services in competition with N PC's\nBusiness. 8. Employee agrees that, within the continental United States, he will not, for a period of two (2) years following the termination of his employment,\ndivert, entice, or othenNise take away any customers, clients, business or orders of NPC or attempt to do so. 9. Employee agrees that, within the continental\nUnited States, he will not, for a period of two (2) years following the termination of his employment, promote or assist financially or othenNise, any person, firm,\nassociation, partnership, corporation, or other entity engaged in any business thatcompetes with NPC's Business. 10. Forthe purposes ofparagraphs 5 through\n9, inclusive, Employee understands and agrees that he will be competing if he engages in any or all ofthe activities setforth therein directly as an individual on\nhis own account, or indirectly as a partner, joint venturer, employee, agent, salesman, consultant, of‘ficer and/or director of any firm or corporation, or as a\nstockholder of any corporation in which Employee or Employee's spouse, child or parent owns, directly or indirectly, individually or in the aggregate, more than\nten percent (10%) ofthe outstanding stock. 11. Forthe purposes ofparagraphs 5 through 9, inclusive, and 15, NPC's Business is defined as the acquisition and\nprocessing ofcredit and debit card transactions accepted by merchants at the pointofsale. 12. If itshall be judicially determined that Employee has violated any\nof his obligations under paragraphs 5 through 9, inclusive, then the period applicable to the obligation which Employee shall have been determined to have\nviolated shall automatically be extended by a period of time equal in length to the period during which said violation(s) occurred. 13. Employee agrees that he will\nnotdirectjy or indirectly at any time solicitor induce or attempt to solicitor induce any employee of NPC to terminate his employment, representation or other\nassociation with N PC. 14. Employee will keep in strictconfidence, and will not, directly or indirectjy, at any time during or after his employment, disclose, furnish,\ndisseminate, make available or use (except in the course of performing his duties ofemployment hereunder) any trade secrets or confidential business and\ntechnical information of NPC or its customers or clients, without limitation as to when or how Employee may have acquired such information. Such confidential\ninformation shall include, the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, pattern, compilation,\nprogram, device, method, technique or improvement, or any business information or plans, financial information, or listing of names, addresses or telephone\nnumbers, including without limitation, information relating to any of N PC '5 customers or prospective customers, NPC's customer lists, contract information\nincluding terms, pricing and sen/ices provided, information received as a resultofcustomer contacts, NPC '5 products and processing capabilities, methods of\noperation, business plans, financials or strategy, and agreements to which N PC may be a party. Employee specifically acknowledges that such information,\nwhether reduced to writing or maintained in the mind or memory of Employee and whether compiled by NPC and/or Employee, derive independent economic\nvalue from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable\nefforts have been putforth by N PC to maintain the secrecy ofsuch information, that such information is the sole property of N PC and that any retention and use\nof such information during or after his employmentwith N PC (except in the course of performing his duties ofemployment hereunder) shall constitute a\nmisappropriation of N PC's trade secrets. Employee further agrees that, at the time oftermination of his employment, he will return to NPC, in good condition, all\nproperty of NPC, including, without limitation, the information identified above. In the event that said items are notso returned, N PC shall have the rightto charge\nEmployee for all reasonable damages, costs, attorney's fees and other expenses incurred in searching for, taking, removing, and/or recovering such property. 15.\nDuring his employment and for two (2) years thereafter, Employee agrees to communicate the contents ofthis Agreementto any person, firm, association, or\ncorporation that he intends to be employed by, associated with, or represent, that is engaged in a business that is competitive to N PC '5 Business. 16. Employee\nacknowledges and agrees thatthe remedy at law available to N PC for breach of any of Employee's obligations under this Agreement would be inadequate, and\nagrees and consents that in addition to any other rights or remedies that NPC may have at law or in equity, temporary and permanent injunctive relief may be\ngranted in any proceeding that may be brought to enforce any provision contained in paragraphs 5 through 9, inclusive, ofthis Agreement, without the necessity\nof proofof actual damage. 17. Employee acknowledges that his obligations under this Agreement are reasonable in the context of the nature of N PC's business\nand the competitive injuries likely to be sustained by NPC if Employee violated such obligations. Employee further acknowledges thatthis Agreement is made in\nconsideration of, and is adequately supported by the obligations undertaken by NPC in paragraph 1 above, which Employee acknowledges constitutes new\nand/or good, valuable and sufficient consideration. Employee acknowledges that his employment relationship with N PC is and following the execution of this\nAgreementshall continue to be "atwill," and may be terminated at any time and for any reason, or for no reason, by N PC or by Employee. However, if N PC\nterminates Employee's employment for reasons other than cause and/or violation ofthis Agreement, then N PC shall pay Employee an amountequal to two (2)\ntimes Employee's annual base salary atthe time of termination, with said amount being paid to Employee over a twenty-four (24) month period on the same\nperiodic basis as N PC's regular payroll, so long as Employee does notviolate any part of this Agreement. For the purposes of this Agreement, "Cause" is defined\nas fraud, misconduct and/or violation of N PC's employment policies. 18. The failure of N PC to enforce any provision of this Agreement shall not be construed to\nbe a waiver ofsuch provision or of the rightof N PC thereafter to enforce each and every provision. 19. This Agreement supersedes all previous agreements,\nwritten or oral, between Employee and NPC. No modification, waiver, amendmentor addition to any ofthe terms ofthis Agreement shall be effective except as\nsetforth in a writing signed by Employee and N PC. 20. All provisions, terms, conditions, paragraphs, agreements and covenants ("Provisions") contained in this\nAgreement are severable and, in the event any one of them shall be held to be invalid by any competent court, this Agreementshall be interpreted as if such\nProvision was notcontained herein, and such determination shall nototherwise affect the validity of any other Provision. The within provisions shall be applicable\nirrespective ofwhether such termination shall be by NPC or by the Employee, whether voluntary or involuntary, whether for cause or without cause, and whether\nby reason or the expiration ofthis or any other written or oral agreementor arrangement (or any extensions thereof) with NPC. 21. While the restrictions set forth\nherein are considered by the parties to be reasonable in all circumstances, it is recognized that restrictions of this nature may fail for reasons unforeseen, and\naccordingly it is hereby agreed and declared that if any of such restrictions shall be adjudged to be void as going beyond what is reasonable in all the\ncircumstances, butwould be valid if the geographical area or temporal extent were reduced in part, or the range of activities or area dealtwith thereby reduced in\nscope, the said restriction shall apply with such modification as may be necessary to make it valid and effective. 22. This Agreementshall take effect upon\nexecution by Employee and N PC and shall be governed by, and construed in accordance with, the internal, substantive laws ofthe Commonwealth of Kentucky.\nEmployee agrees thatthe state and federal courts located in the Commonwealth of Kentucky, shall have jurisdiction in any action, suit or proceeding against\nEmployee based on or arising outof this Agreement and Employee hereby: (i) submits to the personal jurisdiction ofsuch courts; (ii) consents to service of\nprocess in connection with any action, suitor proceeding against Employee; and (iii) waives any other requirement (whether imposed by statute, rule of court or\nothenNise) with respectto personal jurisdiction, venue or sen/ice of process. Employee represents that, prior to signing this Agreement, he has read, fully\nunderstands and voluntarily agrees to the terms and conditions as stated above, that he was notcoerced to sign this Agreement, that he was not under duress at\nthe time he signed this Agreement and that, prior to signing this Agreement, he had adequate time to consider entering into this Agreement, including without\nlimitation, the opportunity to discuss the terms and conditions of this Agreement, as well as its legal consequences, with an attorney of his choice. IN WITNESS\nWHE REOF, the Employee, having read and fully understood each of the foregoing provisions, has executed this Agreement as of this 4th day of March, 1996.\nEMPLOYEE:MARKPYKE/s/Mark D. Pyke ---------------- (Signature)NATIONAL PROCESSING COMPANY By: /s/Kurt Knipp -------------- (Signature)Tit|e:EVP\nDated this 4th day of March, 1996	EX-10.19 198998aexv10w19.tx EX-10.19 EMPLOYMENT AGREEMENT AND UNDERTAKING E xhibit 10.19 EMPLOYMENT AGREEMENT AND\nUNDERTAKING OF ONFIDENTIALITY In consideration of their mutua promises and agreements and subject to the terms and conditions set forth below in this\nmployment Agreement and Undertaking of Confidentiality ("Agreement"), National Processing Company ("NPC" and Mark yke "Employee") hereby agree as\nfollows: 1. NPC agrees to employ mployee in the position of Vice President, Finance, Bankcard Division and at the salary of One Hundred Five Thousand and\nNo/100 Dollars ($105,000.00), and to make available to Employee those benefits provided by NPC to employees with similar responsibilities, all as amended from\ntime to time, upon the terms and conditions set forth below. As additional consideration for the mutual promises and agreements set forth herein, NPC agrees to\npay mployee the sum of Fifty Thousand Dollars and No/100 Dollars ($50,000.00), contemporaneous with the execution of this Agreement. 2. NPC agrees that\nEmployee shall be eligible to participate in NPC's Short Term Incentive Plan with a guaranteed Bonus of Twenty-Fiv Thousand and N0/100 ($25,000.00)\npayable in March, 1997. 3. mployee agrees to use his best efforts to perform the duties assigned to him by NPC. 4. E mployee acknowledges and agrees that in\nthe performance of his duties of employment he may be brought into frequent contact with clients and potential clients of NPC either in person, through the mails,\nby telephone or by other electronic means. Employee also acknowledges and agrees that trade secrets and confidential information of NPC, more fully described\nin paragraph 14 of this Agreement, gained by Employee during his employment with NPC, have been developed by NPC through substantial expenditures of\ntime, effort and financial resources and constitute valuable and unique property of NPC. mployee further understands, acknowledges and agrees that the\nforegoing makes it necessary for the protection of NPC's business that E mployee not compete with NPC during the term of his employment and for a reasonable\nperiod thereafter. 5. E mployee agrees that he will not, during his employment, compete with NPC within the continental United States. E mployee agrees that,\nin\naccordance with this restriction, but without limiting its terms, he will not during the term of his employment: (i) enter into or engage in any business that competes\nwith NPC's Business; or (ii) solicit any customers, clients, business, patronage or orders for, or sell any services in competition with, or for any business that\ncompetes with NPC's Business; or (iii) divert, entice, or take away any customers, clients, business, patronage or orders of NPC, or attempt to do so; or (iv)\npromote or assist financially or otherwise, any person, firm, association or corporation engaged in any business that competes with NPC'S Business. 6.\nE mployee agrees that, within the continental United States, he wil not, for a period of two (2) years following the termination of his employment, enter into or\nengage in any business that competes with NPC's Business. 7. mployee agrees that, within the continental nited States, he will not, for a period of two (2)\nyears following the termination of his employment, solicit customers, clients, business, patronage, or orders for, or sell any services in competition with NPC's\nBusiness. 8. Employee agrees that within the continental United States, he will not, for a period of two (2) years following the termination of his employment,\ndivert, entice, or otherwise take away any customers, clients, business or orders of NPC or attempt to do so. 9. mployee agrees that, within the continental\nUnited States, he will not, for a period of two (2) years following the termination of his employment, promote or assist financially or otherwise, any person, firm,\nassociation, partnership, corporation, or other entity engaged in any business that competes with NPC's Business. 10 For the purposes of paragraphs 5 through\n9, inclusive, E mployee understands and agrees that he will be competing if he engages in any or all of the activities set forth therein directly as an individual on\nhis own account, or indirectly as a partner, joint venturer, employee, agent, salesman, consultant, officer and/or director of any firm or corporation, or as\na\nstockholder of any corporation in which Employee or Employee's spouse, child or parent owns, directly or indirectly, individually or in the aggregate, more than\nten percent (10%) of the outstanding stock. 11. F or the purposes of paragraphs 5 through 9, inclusive, and 15, Business is defined as the acquisition and\nprocessing of credit and debit card transactions accepted by merchants at the point of sale 12 if it shall be judicially determined that Employee has violated any\nof\nhis obligations under paragraphs 5 through 9, inclusive, then the period applicable to the obligation which Employee shal have been determined to have\nviolated shal automatically be extended by a period of time equal in length to the period during which said violation(s) occurred. 13. mployee agrees that he will\nnot directly or indirectly at any time solicit or induce or attempt to solicit or induce any employee of NPC to terminate his employment, representation or other\nassociation with NPC. 14. Employee will keep in strict confidence, and will not, directly or indirectly, at any time during or after his employment, disclose, furnish\ndisseminate, make available or use (except in the course of performing his duties of employment hereunder) any trade secrets or confidential business and\ntechnical information of NPC or its customers or clients, without limitation as to when or how mployee may have acquired such information. Such confidential\ninformation shall include, the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, pattern, compilation,\nprogram, device, method technique or improvement, or any business information or plans, financial information, or listing of names, addresses or telephone\nnumbers, including without limitation, information relating to any of NPC's customers or prospective customers, NPC's customer lists, contract information\nincluding terms, pricing and services provided, information received as a result of customer contacts, NPC's products and processing capabilities, methods\nof\noperation, business plans, financials or strategy, and agreements to which NPC may be a party. Employee specifically acknowledges that such information,\nwhether reduced to writing or maintained in the mind or memory of Employee and whether compiled by NPC and/or mployee, derive independent economic\nvalue from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable\nefforts have been put forth by NPC to maintain the secrecy of such information, that such information is the sole property of NPC and that any retention and use\nof\nsuch information during or after his employment with NPC (except in the course of performing his duties of employment hereunder) shall constitute a\nmisappropriation of NPC's trade secrets. Employee further agrees that, at the time of termination of his employment, he will return to NPC, in good condition, all\nproperty of NPC, including, without limitation, the information identified above. In the event that said items are not so returned, NPC shall have the right to charge\nE mployee for all reasonable damages, costs, attorney's fees and other expenses incurred in searching for, taking, removing, and/or recovering such property. 15\nDuring his employment and for two (2) years thereafter, Employee agrees to communicate the contents of this Agreement to any person, firm, association, or\ncorporation that he intends to be employed by, associated with, or represent, that is engaged in a business that is competitive to NPC's Business. 16. Employee\nacknowledges and agrees that the remedy at law available to NPC for breach of any of Employee's obligations under this Agreement would be inadequate,\nand\nagrees and consents that in addition to any other rights or remedies that NPC may have at law or in equity, temporary and permanent injunctive relief may be\ngranted in any proceeding that may be brought to enforce any provision contained in paragraphs 5 through 9, inclusive, of this Agreement, without the necessity\nof proof of actual damage 17. Employee acknowledges that his obligations under this Agreement are reasonable in the context of the nature of NPC's business\nand the competitive injuries likely to be sustained by NPC if E mployee violated such obligations. Employee further acknowledges that this Agreement is made in\nconsideration of, and is adequately supported by the obligations undertaken by NPC in paragraph 1 above, which Employee acknowledges constitutes new\nand/or good, valuable and sufficient consideration. mployee acknowledges that his employment relationship with NPC is and following the execution of this\nAgreement shall continue to be "at will," and may be terminated at any time and for any reason, or for no reason, by NPC or by Employee. However, if NPC\nterminates Employee's employment for reasons other than cause and/or violation of this Agreement, then NPC shall pay E mployee an amount equal to two (2)\ntimes mployee's annual base salary at the time of termination, with said amount being paid to Employee over a twenty-four (24) month period on the same\nperiodic basis as NPC's regular payroll, so long as Employee does not violate any part of this Agreement. For the purposes of this Agreement, "Cause" is defined\nas fraud, misconduct and/or violation of NPC's employment policies 18. The failure of NPC to enforce any provision of this Agreement shall not be construed\nto\nbe a waiver of such provision or of the right of NPC thereafter to enforce each and every provision. 19 This Agreement supersedes all previous agreements,\nwritten or oral, between Employee and NPC. No modification, waiver, amendment or addition to any of the terms of this Agreement shall be effective except as\nset forth in a writing signed by mployee and NPC. 20 All provisions, terms, conditions, paragraphs, agreements and covenants ("Provisions") contained in this\nAgreement are severable and, in the event any one of them shall be held to be invalid by any competent court, this Agreement shall be interpreted as if such\nProvision was not contained herein, and such determination shall not otherwise affect the validity of any other rovision. The within provisions shall be applicable\nirrespective of whether such termination shall be by NPC or by the Employee, whether voluntary or involuntary, whether for cause or without cause, and whether\nby reason or the expiration of this or any other written or oral agreement or arrangement (or any extensions thereof) with NPC. 21 While the restrictions\nset\nforth\nherein are considered by the parties to be reasonable in all circumstances, it is recognized that restrictions of this nature may fai for reasons unforeseen, and\naccordingly it is hereby agreed and declared that if any of such restrictions shall be adjudged to be void as going beyond what is reasonable in all the\ncircumstances, but would be valid if the geographical area or temporal extent were reduced in part, or the range of activities or area dealt with thereby reduced\nin\nscope, the said restriction shall apply with such modification as may be necessary to make it valid and effective. 22. This Agreement shall take effect upon\nexecution by Employee and NPC and shall be governed by, and construed in accordance with, the internal, substantive laws of the Commonwealth of Kentucky.\nEmployee agrees that the state and federal courts located in the Commonwealth of Kentucky, shal have jurisdiction in any action, suit or proceeding against\nEmployee based on or arising out of this Agreement and Employee hereby: (i) submits to the personal jurisdiction of such courts; (ii) consents to service\nof\nprocess in connection with any action, suit or proceeding against Employee; and (iii) waives any other requirement (whether imposed by statute, rule of court or\notherwise) with respect to persona jurisdiction, venue or service of process. E Employee represents that, prior to signing this Agreement, he has read, fully\nunderstands and voluntarily agrees to the terms and conditions as stated above, that he was not coerced to sign this Agreement, that he was not under duress\nat\nthe time he signed this Agreement and that, prior to signing this Agreement, he had adequate time to consider entering into this Agreement, including without\nlimitation, the opportunity to discuss the terms and conditions of this Agreement, as well as its legal consequences, with an attorney of his choice. IN WITNESS\nWHEREOF, the Employee, having read and fully understood each of the foregoing provisions, has executed this Agreement as of this 4th day of March, 1996.\nEMPLOYEE: MARK PYKE /s/ Mark D. P yke\n(Signature) NATIONAL PROCESSING COMPANY By: /s/ Kurt Knipp\n(Signature) Title EVP\nDated this 4th day of March, 1996	EX-10 .19 3 l98998aexv10w19.txt EX-10.19 EMPLOYMENT AGREEMENT AND UNDERTAKING Exhibit 10.19 EMPLOYMENT AGREEMENT AND\nUNDERTAKING OF CONFIDENTIALITY In consideration of their mutual promises and agreements and subject to the terms and conditions set forth below in this\nEmployment Agreement and Undertaking of Confidentiality ("Agreement"), National Processing Company ("NPC") and Mark Pyke ("Employee") hereby agree as\nfollows: 1. NPC agrees to employ Employee in the position of Vice President, Finance, Bankcard Division and at the salary of One Hundred Five Thousand and\nNo/100 Dollars ($105,000 .00), and to make available to Employee those benefits provided by NPC to employees with similar responsibilities, all as amended from\ntime to time, upon the terms and conditions set forth below. As additional consideration for the mutual promises and agreements set forth herein, NPC agrees to\npay Employee the sum of Fifty Thousand Dollars and No/100 Dollars ($50,000 .00), contemporaneous with the execution of this Agreement. 2. NPC agrees that\nEmployee shall be eligible to participate in NPC's Short Term Incentive Plan with a guaranteed Bonus of Twenty-Five Thousand and No/100 ($25,000 .00)\npayable in March, 1997 . 3. Employee agrees to use his best efforts to perform the duties assigned to him by NPC. 4. Employee acknowledges and agrees that in\nthe performance of his duties of employment he may be brought into frequent contact with clients and potential clients of NPC either in person, through the mails,\nby telephone or by other electronic means. Employee also acknowledges and agrees that trade secrets and confidential information of NPC, more fully described\nin paragraph 14 of this Agreement, gained by Employee during his employment with NPC, have been developed by NPC through substantial expenditures of\ntime, effort and financial resources and constitute valuable and unique property of NPC. Employee further understands, acknowledges and agrees that the\nforegoing makes it necessary for the protection of NPC's business that Employee not compete with NPC during the term of his employment and for a reasonable\nperiod thereafter. 5 . Employee agrees that he will not, during his employment, compete with NPC within the continental United States. Employee agrees that, in\naccordance with this restriction, but without limiting its terms, he will not during the term of his employment: (i) enter into or engage in any business that competes\nwith NPC's Business; or (ii) solicit any customers, clients, business, patronage or orders for, or sell any services in competition with, or for any business that\ncompetes with NPC's Business; or (iii) divert, entice, or take away any customers, clients, business, patronage or orders of NPC, or attempt to do so; or (iv)\npromote or assist, financially or otherwise, any person, firm, association or corporation engaged in any business that competes with NPC's Business. 6.\nEmployee agrees that, within the continental United States, he will not, for a period of two (2) years following the termination of his employment, enter into or\nengage in any business that competes with NPC's Business. 7 . Employee agrees that, within the continental United States, he will not, for a period of two (2)\nyears following the termination of his employment, solicit customers, clients, business, patronage, or orders for, or sell any services in competition with NPC's\nBusiness. 8. Employee agrees that, within the continental United States, he will not, for a period of two (2) years following the termination of his employment,\ndivert, entice, or otherwise take away any customers, clients, business or orders of NPC or attempt to do so. 9. Employee agrees that, within the continental\nUnited States, he will not, for a period of two (2) years following the termination of his employment, promote or assist financially or otherwise, any person, firm,\nassociation, partnership, corporation, or other entity engaged in any business that competes with NPC's Business. 10. For the purposes of paragraphs 5 through\n9, inclusive, Employee understands and agrees that he will be competing if he engages in any or all of the activities set forth therein directly as an individual on\nhis own account, or indirectly as a partner, joint venturer, employee, agent, salesman, consultant, officer and/or director of any firm or corporation, or as a\nstockholder of any corporation in which Employee or Employee's spouse, child or parent owns, directly or indirectly, individually or in the aggregate, more than\nten percent (10%) of the outstanding stock. 11. For the purposes of paragraphs 5 through 9, inclusive, and 15, NPC's Business is defined as the acquisition and\nprocessing of credit and debit card transactions accepted by merchants at the point of sale. 12 . If it shall be judicially determined that Employee has violated any\nof his obligations under paragraphs 5 through 9, inclusive, then the period applicable to the obligation which Employee shall have been determined to have\nviolated shall automatically be extended by a period of time equal in length to the period during which said violation(s) occurred. 13. Employee agrees that he will\nnot directly or indirectly at any time solicit or induce or attempt to solicit or induce any employee of NPC to terminate his employment, representation or other\nassociation with NPC. 14. Employee will keep in strict confidence, and will not, directly or indirectly, at any time during or after his employment, disclose, furnish,\ndisseminate, make available or use (except in the course of performing his duties of employment hereunder) any trade secrets or confidential business and\ntechnical information of NPC or its customers or clients, without limitation as to when or how Employee may have acquired such information. Such confidential\ninformation shall include, the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, pattern, compilation,\nprogram, device, method, technique or improvement, or any business information or plans, financial information, or listing of names, addresses or telephone\nnumbers, including without limitation, information relating to any of NPC's customers or prospective customers, NPC's customer lists, contract information\nincluding terms, pricing and services provided, information received as a result of customer contacts, NPC's products and processing capabilities, methods of\noperation, business plans, financials or strategy, and agreements to which NPC may be a party. Employee specifically acknowledges that such information,\nwhether reduced to writing or maintained in the mind or memory of Employee and whether compiled by NPC and/or Employee, derive independent economic\nvalue from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable\nefforts have been put forth by NPC to maintain the secrecy of such information, that such information is the sole property of NPC and that any retention and use\nof such information during or after his employment with NPC (except in the course of performing his duties of employment hereunder) shall constitute a\nmisappropriation of NPC's trade secrets. Employee further agrees that, at the time of termination of his employment, he will return to NPC, in good condition, all\nproperty of NPC, including, without limitation, the information identified above. In the event that said items are not so returned, NPC shall have the right to charge\nEmployee for all reasonable damages, costs, attorney's fees and other expenses incurred in searching for, taking, removing, and/or recovering such property. 15 .\nDuring his employment and for two (2) years thereafter, Employee agrees to communicate the contents of this Agreement to any person, firm, association, or\ncorporation that he intends to be employed by, associated with, or represent, that is engaged in a business that is competitive to NPC's Business. 16. Employee\nacknowledges and agrees that the remedy at law available to NPC for breach of any of Employee's obligations under this Agreement would be inadequate, and\nagrees and consents that in addition to any other rights or remedies that NPC may have at law or in equity, temporary and permanent injunctive relief may be\ngranted in any proceeding that may be brought to enforce any provision contained in paragraphs 5 through 9, inclusive, of this Agreement, without the necessity\nof proof of actual damage. 17. Employee acknowledges that his obligations under this Agreement are reasonable in the context of the nature of NPC's business\nand the competitive injuries likely to be sustained by NPC if Employee violated such obligations. Employee further acknowledges that this Agreement is made in\nconsideration of, and is adequately supported by the obligations undertaken by NPC in paragraph 1 above, which Employee acknowledges constitutes new\nand/or good, valuable and sufficient consideration. Employee acknowledges that his employment relationship with NPC is and following the execution of this\nAgreement shall continue to be "at will," and may be terminated at any time and for any reason, or for no reason, by NPC or by Employee. However, if NPC\nterminates Employee's employment for reasons other than cause and/or violation of this Agreement, then NPC shall pay Employee an amount equal to two (2)\ntimes Employee's annual base salary at the time of termination, with said amount being paid to Employee over a twenty-four (24) month period on the same\nperiodic basis as NPC's regular payroll, so long as Employee does not violate any part of this Agreement. For the purposes of this Agreement, "Cause" is defined\nas fraud, misconduct and/or violation of NPC's employment policies. 18 . The failure of NPC to enforce any provision of this Agreement shall not be construed to\nbe a waiver of such provision or of the right of NPC thereafter to enforce each and every provision. 19. This Agreement supersedes all previous agreements,\nwritten or oral, between Employee and NPC. No modification, waiver, amendment or addition to any of the terms of this Agreement shall be effective except as\nset forth in a writing signed by Employee and NPC. 20. All provisions, terms, conditions, paragraphs, agreements and covenants ("Provisions") contained in this\nAgreement are severable and, in the event any one of them shall be held to be invalid by any competent court, this Agreement shall be interpreted as if such\nProvision was not contained herein, and such determination shall not otherwise affect the validity of any other Provision. The within provisions shall be applicable\nirrespective of whether such termination shall be by NPC or by the Employee, whether voluntary or involuntary, whether for cause or without cause, and whether\nby reason or the expiration of this or any other written or oral agreement or arrangement (or any extensions thereof) with NPC. 21. While the restrictions set forth\nherein are considered by the parties to be reasonable in all circumstances, it is recognized that restrictions of this nature may fail for reasons unforeseen, and\naccordingly it is hereby agreed and declared that if any of such restrictions shall be adjudged to be void as going beyond what is reasonable in all the\ncircumstances, but would be valid if the geographical area or temporal extent were reduced in part, or the range of activities or area dealt with thereby reduced in\nscope, the said restriction shall apply with such modification as may be necessary to make it valid and effective. 22 . This Agreement shall take effect upon\nexecution by Employee and NPC and shall be governed by, and construed in accordance with, the internal, substantive laws of the Commonwealth of Kentucky.\nEmployee agrees that the state and federal courts located in the Commonwealth of Kentucky, shall have jurisdiction in any action, suit or proceeding against\nEmployee based on or arising out of this Agreement and Employee hereby: (i) submits to the personal jurisdiction of such courts; (ii) consents to service of\nprocess in connection with any action, suit or proceeding against Employee; and (iii) waives any other requirement (whether imposed by statute, rule of court or\notherwise) with respect to personal jurisdiction, venue or service of process. Employee represents that, prior to signing this Agreement, he has read, fully\nunderstands and voluntarily agrees to the terms and conditions as stated above, that he was not coerced to sign this Agreement, that he was not under duress at\nthe time he signed this Agreement and that, prior to signing this Agreement, he had adequate time to consider entering into this Agreement, including without\nlimitation, the opportunity to discuss the terms and conditions of this Agreement, as well as its legal consequences, with an attorney of his choice. IN WITNESS\nWHEREOF, the Employee, having read and fully understood each of the foregoing provisions, has executed this Agreement as of this 4th day of March, 1996.\nEMPLOYEE: MARK PYKE /s/ Mark D. Pyke ---------------- (Signature) NATIONAL PROCESSING COMPANY By: /s/ Kurt Knipp -------------- (Signature) Title: EVP\n-- - Dated this 4th day of March, 1996
+e1bdc56d34ad4f49ca852d456c015a76.pdf	effective_date jurisdiction party	EXHIBIT A\nPROPRIETARY INFORMATION, INVENTIONS AND NON-COMPETITION AGREEMENT\nThis PROPRIETARY INFORMATION, INVENTIONS and NON-COMPETITION AGREEMENT (the “Agreement”) is\nmade and entered into as of July 19, 2019 (the “Effective Date”), by and between Cosmos Group Holdings, a Nevada\ncorporation (“Corporation”) and Wing Lok Jonathan SO (“Executive”).\nRECITALS\nWHEREAS, the parties desire to assure the confidential status and proprietary nature of the information which may\nbe disclosed by Corporation to the Executive; and\nAGREEMENT\nNOW THEREFORE, in reliance upon and in consideration of the following undertaking, the parties agree as follows:\n1. Nondisclosure.\n1.1 Recognition of Corporation’s Rights; Nondisclosure. At all times during the period of time Executive is\nengaged as a consultant, independent contractor or employee of the Corporation (“Service Period”) and provides\nthe necessary and requested services in such capacity (“Services”), Executive will hold in strictest confidence and\nwill not disclose, use, lecture upon or publish any of the Corporation’s Proprietary Information (defined below),\nexcept as such disclosure, use or publication may be required in connection with Service to the Corporation, or\nunless the Corporation expressly authorizes such disclosure in writing. Executive will obtain Corporation’s written\napproval before publishing or submitting for publication any material (written, verbal, or otherwise) that relates to\nServices and/or incorporates any Proprietary Information. Executive hereby assigns to the Corporation any rights\nExecutive may have or acquire in such Proprietary Information and recognizes that all Proprietary Information shall\nbe the sole property of the Corporation and its assigns.\n1.2 Proprietary Information. The term “Proprietary Information” shall mean any and all confidential and/or\nproprietary knowledge, data or information of the Corporation, including that which Executive may produce in\nservice to the Corporation. By way of illustration but not limitation, “Proprietary Information” includes (a) trade\nsecrets, inventions, mask works, ideas, processes, formulas, source and object codes, data, programs, other works\nof authorship, know-how, improvements, discoveries, developments, designs and techniques (hereinafter\ncollectively referred to as “Inventions”); and (b) information regarding plans for research, development, new\nproducts, marketing and selling, business plans, budgets and unpublished financial statements, pricing strategies,\nlicenses, prices and costs, suppliers and customers; and (c) information regarding the skills and compensation of\nother service providers of the Corporation.\n1.3 Third Party Information. Executive understands, in addition, that the Corporation has received and in the\nfuture will receive from third parties, including clients, customers, consultants, licensees or affiliates, confidential or\nproprietary information (“Third Party Information”). Executive understands that the Corporation has a duty to\nmaintain the confidentiality of such Third Party Information and to use it only for certain limited purposes. During the\nService Period and thereafter, Executive will hold Third Party Information in the strictest confidence and will not\ndisclose Third Party Information to anyone (other than Corporation personnel who need to know such information in\nconnection with their work for the Corporation) or use Third Party Information (except in connection with the\nperformance of Executive’s Services for the Corporation), unless expressly authorized by the Corporation in writing.\n1.4 No Improper Use of Information of Prior Employers and Others. During the Service Period, Executive will\nnot improperly use or disclose any confidential information or trade secrets, if any, of any former or current\nemployer or any other person to whom Executive has an obligation of confidentiality, and Executive will not bring\nonto the Corporation premises any unpublished documents or any property belonging to any former or current\nemployer or any other person to whom Executive has an obligation of confidentiality unless consented to in writing\nby that former or current employer or person. In the performance of his duties, Executive will only use information\nwhich is generally known and used by persons with training and experience comparable to his own, which is\ncommon knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or\ndeveloped by the Corporation.\nA-1\n2. Assignment of Inventions.\n2.1 Proprietary Rights. The term “Proprietary Rights” shall mean all trade secrets, patent, copyright, mask\nwork and other intellectual property rights throughout the world.\n2.2 Prior Inventions. Inventions, if any, patented or unpatented, which Executive made prior to the\ncommencement of the Service Period are excluded from the scope of this Agreement. To preclude any possible\nuncertainty, Executive has set forth on Attachment B (Previous Inventions) attached hereto a complete list of all\nInventions that Executive has or caused to be (alone or jointly with others) conceived, developed or reduced to\npractice prior to the commencement of the Service Period, that Executive considers to be his property or the\nproperty of third parties and that Executive wishes to have excluded from the scope of this Agreement (collectively\nreferred to as “Prior Inventions”). If such disclosure would cause Executive to violate any prior confidentiality\nagreement, Executive shall not list such Prior Inventions in Attachment B but only disclose a cursory name for each\nsuch Invention, a listing of the party(ies) to whom it belongs and the fact that full disclosure as to such inventions\nhas not been made for that reason. A space is provided on Attachment B for such purpose. If no such disclosure is\nattached, Executive represents that there are no Prior Inventions. If, during the Service Period, Executive\nincorporates a Prior Invention into a Corporation product, process or machine, the Corporation is hereby granted\nand shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with rights to sublicense\nthrough multiple tiers of sublicensees) to make, have made, modify, use and sell such Prior Invention.\nNotwithstanding the foregoing, Executive agrees that he will not incorporate, or permit to be incorporated, Prior\nInventions in any Corporation Inventions without the Corporation’s prior written consent.\n2.3 Assignment of Inventions. Subject to Sections 2.4 and 2.6, Executive hereby assigns, and agrees to\nassign in the future when any such Inventions or Proprietary Rights are first reduced to practice or first fixed in a\ntangible medium, as applicable, to the Corporation all right, title and interest in and to any and all Inventions (and all\nProprietary Rights with respect thereto) whether or not patentable or registrable under copyright or similar statutes,\nmade or conceived or reduced to practice or learned by Executive, either alone or jointly with others, during the\nService Period. Inventions assigned to the Corporation, or to a third party as directed by the Corporation pursuant\nto this Section 2, are hereinafter referred to as “Corporation Inventions.”\n2.4 Non-assignable Inventions. This Agreement does not apply to an Invention which the Executive developed\nentirely on his or her own time without using the Company’s equipment, supplies, facilities, or trade secret\ninformation except for those inventions that either:\n•\nRelate at the time of conception or reduction to practice of the invention to the Company’s business, or\nactual or demonstrably anticipated research or development of the Company; or\n•\nResult from any Services performed by the Executive for the Company.\n2.5. Limited Exclusion Notification. Executive has reviewed the notification on Attachment A (Limited\nExclusion Notification) and agrees that his signature acknowledges receipt of the notification.\n2.6 Obligation to Keep Corporation Informed. During the Service Period, and for twelve (12) months after\ntermination of the Service Period, Executive will fully disclose in writing to the Corporation all Inventions authored,\nconceived or reduced to practice by Executive, either alone or jointly with others, within no more than thirty\n(30) days after creation. In addition, Executive will disclose to the Corporation all patent applications filed within a\nyear after termination of the Service Period by Executive, or on his behalf, within no more than thirty (30) days after\nfiling. At the time of each such disclosure, Executive will advise the Corporation in writing of any Inventions that he\nbelieves fully qualify for exemption under Section 2.4 of this Agreement, and Executive will, at that time, provide all\nwritten evidence necessary to substantiate that belief. The Corporation will keep in confidence and will not use for\nany purpose or disclose to third parties without Executive’s consent any confidential information disclosed in writing\nto the Corporation pursuant to this Agreement relating to Inventions that qualify fully for exemption under the\nprovisions of Section 2.4 of this Agreement. Executive will preserve the confidentiality of any Invention that does not\nfully qualify for exemption under Section 2.4 of this Agreement.\nA-2\n2.7 Works for Hire. Executive acknowledges that all original works of authorship which are made by Executive\n(solely or jointly with others) within the scope of Service and which are protectable by copyright are “works made for\nhire,” pursuant to United States Copyright Act (17 U.S.C., Section 101) and shall be the sole property of the\nCorporation.\n2.8 Enforcement of Proprietary Rights. Executive will assist the Corporation, or its nominee, to obtain and\nenforce United States and foreign Proprietary Rights relating to Corporation Inventions in any and all countries, and\nsuch Proprietary Rights and Corporation Inventions shall be and remain the sole and exclusive property of the\nCorporation, or its nominee, whether or not patented or copyrighted. Accordingly, Executive will promptly execute,\nverify and deliver such documents and perform such other acts (including appearances as a witness and assistance\nor cooperation in legal proceedings) as the Corporation may reasonably request in applying for, obtaining,\nperfecting, evidencing, sustaining and enforcing such Proprietary Rights and the assignment thereof. This obligation\nshall survive and continue beyond the termination of the Service Period, but the Corporation shall compensate\nExecutive at a reasonable rate after his termination for the time actually spent providing such assistance.\n2.9 Appointment of Corporation as Agent. If, after reasonable effort, the Corporation is unable to secure\nExecutive’s signature on any document needed in connection with the actions specified herein, Executive hereby\nirrevocably designates and appoints the Corporation and its duly authorized officers and agents as Executive’s\nagents and attorneys-in-fact, which appointment is coupled with an interest, to act for and in Executive’s behalf to\nexecute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of this\nAgreement with the same legal force and effect as if executed by Executive. Executive hereby waives and\nquitclaims to the Corporation any and all claims, of any nature whatsoever, which Executive now or may hereafter\nhave for infringement of any Proprietary Rights assigned hereunder to the Corporation.\n3. Records.\nExecutive agrees to keep and maintain adequate and current records (in the form of notes, sketches, drawings and\nin any other form that may be required by the Corporation) of all Proprietary Information developed by Executive\nand all Inventions made by Executive during the Service Period, which records shall be available to and remain the\nsole property of the Corporation at all times.\n4. Non-Competition Obligation.\nExecutive agrees that during the Service Period, Executive will not provide any services or engage in any\nemployment or business activity which is competitive with, or would otherwise conflict with, Executive’s Service to\nthe Corporation, without the Corporation’s express written consent. Executive agrees further that during the Service\nPeriod and for two (2) years after the termination of the Service Period, Executive will not, either directly or through\nothers, use trade secret information of the Company to solicit or attempt to solicit any customer, vendor, employee,\nindependent contractor or consultant of the Corporation to terminate his or her relationship with the Corporation in\norder to become a customer, vendor, employee, consultant or independent contractor to or for any other person or\nentity including, without limitation, Executive.\n5. Non-Solicitation With the Corporation.\nExecutive covenants and agrees that, for a period of two (2) years following termination of the Service Period,\nExecutive will not use trade secret information of the Corporation to solicit or engage in competitive business with\nCorporation’s existing or potential vendors or customers at the time of his separation from the Corporation and\nExecutive will not encourage or solicit any customer, vendor, employee or consultant to leave the Corporation for\nany reason.\nA-3\n6. No Conflicting Obligation.\nExecutive represents that his performance of all the terms of this Agreement and as an executive to the Corporation\ndoes not and will not breach any agreement to keep information acquired by Executive prior to the Service Period in\nconfidence or trust. Executive has not entered into, and agrees he will not enter into, any agreement either written\nor oral in conflict herewith.\n7. Return of Corporation Documents.\nUpon termination of the Service Period, Executive will deliver to the Corporation any and all drawings, notes,\nmemoranda, specifications, devices, formulas, and documents, together with all copies thereof, and any other\nmaterial containing, comprising or disclosing any Corporation Inventions, Proprietary Information and Third Party\nInformation. Executive further agrees that any property situated on the Corporation’s premises and owned by the\nCorporation, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by\nthe Corporation at any time with or without notice. Prior to leaving, Executive will cooperate with the Corporation in\ncompleting and signing the Corporation’s termination statement, which will include, at a minimum, the certifications\nset forth in Attachment C.\n8. Legal and Equitable Remedies.\nBecause Executive’s services are personal and unique and because Executive may have access to and become\nacquainted with the Proprietary Information of the Corporation, the Corporation shall have the right to enforce this\nAgreement and any of its provisions by injunction, specific performance or other equitable relief, without bond and\nwithout prejudice to any other rights and remedies that the Corporation may have for a breach of this Agreement.\n9. Notices.\nAny notices required or permitted hereunder shall be given to the appropriate party at the address specified below\nor at such other address as the party shall specify in writing. Such notice shall be deemed given upon personal\ndelivery to the appropriate address or, if sent by certified or registered mail, three (3) days after the date of mailing.\n10. General Provisions.\n10.1 Governing Law; Consent to Personal Jurisdiction; Attorney’s Fees. This Agreement and the legal\nrelations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the\nState of Nevada, without regard to its conflict of laws rules. The Corporation and Executive hereby irrevocably and\nunconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be\nbrought only in the State of Nevada (the “Nevada Court”), and not in any other state or federal court in the United\nStates of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Nevada\nCourt for purposes of any action or proceeding arising out of or in connection with this Agreement, and (iii) waive\nany objection to the laying of venue of any such action or proceeding in the Nevada Court and (iv) waive, and agree\nnot to plead or to make, any claim that any such action or proceeding brought in the Nevada Court has been\nbrought in an improper or inconvenient forum.\n10.2 Severability. If one or more of the provisions contained in this Agreement shall, for any reason, be held to\nbe invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the\nother provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or\nunenforceable provision had never been contained herein. If, moreover, any one or more of the provisions\ncontained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical\nscope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent\ncompatible with the applicable law as it shall then appear.\nA-4\n10.3 Successors and Assigns. This Agreement will be binding upon Executive’s heirs, executors,\nadministrators and other legal representatives and will be for the benefits of the Corporation, its successors, and its\nassigns.\n10.4 Survival. Executive agrees that the provisions of this Agreement shall survive the termination of the\nService Period and the assignment of this Agreement by the Corporation to any successor-in-interest or other\nassignee, regardless of the reason or reasons for termination and whether such termination is voluntary or\ninvoluntary.\n10.5 Nature of Relationship. This Agreement shall not be deemed nor does it create an employment contract\nbetween the Corporation (or any of its subsidiaries or related companies) and Executive. Executive is an\nindependent contractor and shall not be deemed an employee of the Corporation for purposes of employee\nbenefits, income tax withholding, F.I.C.A . taxes, unemployment benefits or any other purpose. Executive’s term of\nservice is defined in Section 7 of the Executive Retainer Agreement between Executive and the Company signed\nconcurrently herewith.\n10.6 Waiver. No waiver by the Corporation of any breach of this Agreement shall be a waiver of any preceding\nor succeeding breach. No waiver by the Corporation of any right under this Agreement shall be construed as a\nwaiver of any other right. The Corporation shall not be required to give notice to enforce strict adherence to all\nterms of this Agreement.\n10.7 Advice of Counsel. Executive acknowledges that, in executing this Agreement, Executive has had the\nopportunity to seek the advice of independent legal counsel, and Executive has read and understood all of the\nterms and provisions of this Agreement. This Agreement shall not be construed against any party by reason of the\ndrafting or preparation hereof.\n10.8 Modification. This Agreement may not be changed, modified, released, discharged, abandoned or\notherwise amended, in whole or in part, except by an instrument in writing, signed by Executive and the\nCorporation. Executive agrees that any subsequent change or changes in Executive’s duties, salary, or\ncompensation shall not affect the validity or scope of this Agreement.\n10.9 Entire Agreement. The obligations of this Agreement shall apply to any time during which Executive\npreviously provided service, or will in the future provide service, to the Corporation as a consultant or agent if no\nother agreement governs nondisclosure and assignment of inventions during such period. This Agreement is the\nfinal, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes\nand merges all prior discussions between us. No modification of or amendment to this Agreement, nor any waiver\nof any rights under this Agreement, will be effective unless in writing and signed by the party to be charged. The\nheadings in this Agreement are used for convenience only and are not to be considered a part of this Agreement or\nbe used to interpret the meaning of any part of this Agreement.\n10.10 Counterparts. This Agreement may be signed in two counterparts, each shall be deemed an original\nand both of which shall together constitute one agreement. The parties hereto agree to accept a facsimile\ntransmission copy of their respective actual signatures as evidence of their actual signatures to this Agreement and\nany modification or amendment of this Agreement; provided, however, that each party who produces a facsimile\nsignature agrees, by the express terms hereof, to place, promptly after transmission of his or her signature by fax, a\ntrue and correct original copy of his or her signature in overnight mail to the address of the other party.\n[The remainder of this page has been intentionally left blank. Signature page(s) to follow]\nA-5\nI HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE COMPLETELY FILLED\nOUT ATTACHMENT B TO THIS AGREEMENT. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO ME\nTO INDUCE ME TO SIGN THIS AGREEMENT. I SIGN THIS AGREEMENT VOLUNTARILY AND FREELY.\nDated:\nBy:\nPrinted Name:\nWing Lok Jonathan SO\nACCEPTED AND AGREED TO:\nCOSMOS GROUP HOLDINGS, INC.\nBy:\nMiky Y.C. Wan\nIts:\nChief Executive Officer, Interim Chief Financial\nOfficer and President\nSignature Page to Proprietary Information, Inventions and Non-Competition Agreement\nA-6	EXHIBIT A\nPROPRIETARY INFORMATION, INVENTIONS AND NON-COMPETITION AGREEMENT\nThis PROPRIETARY INFORMATION, INVENTIONS and NON-COMPETITION AGREEMENT (the “Agreement”) is\nmade and entered into as of] uly 19, 2019 (the “Effective Date”), by and between Cosmos Group Holdings, a Nevada corporation (“Corporation”) and Wing LokJ onathan SO (“E xecutive”). RECITALS\nWHEREAS, the parties desire to assure the confidential status and proprietary nature of the information which may\nbe disclosed by Corporation to the Executive; and 1. AGREEMENT\nNOW THEREFORE, in reliance upon and in consideration of the following undertaking, the parties agree as follows:\nNondisclosure.\n1.1 Recognition of Corporation's Rights; Nondisclosure. At all times during the period of time Executive is\nengaged as a consultant, independent contractor or employee of the Corporation (“Service Period”) and provides\nthe necessary and requested services in such capacity (“Services”), Executive will hold in strictest confidence and\nwill not disclose, use, lecture upon or publish any of the Corporation's Proprietary Information (defined below),\nexcept as such disclosure, use or publication may be required in connection with Service to the Corporation, or\nunless the Corporation expressly authorizes such disclosure in writing. Executive will obtain Corporation's written\napproval before publishing or submitting for publication any material (written, verbal, or otherwise) that relates to\nServices and/or incorporates any Proprietary Information. Executive hereby assigns to the Corporation any rights\nExecutive may have or acquire in such Proprietary Information and recognizes that all Proprietary Information shall\nbe the sole property ofthe Corporation and its assigns.\n1.2 Proprietary Information. The term “Proprietary Information" shall mean any and all confidential and/or\nproprietary knowledge, data or information of the Corporation, including that which Executive may produce in\nservice to the Corporation. By way of illustration but not limitation, “Proprietary Information" includes (a) trade\nsecrets, inventions, mask works, ideas, processes, formulas, source and object codes, data, programs, other works\nof authorship, know-how, improvements, discoveries, developments, designs and techniques (hereinafter\ncollectively referred to as “Inventions"); and (b) information regarding plans for research, development, new\nproducts, marketing and selling, business plans, budgets and unpublished financial statements, pricing strategies,\nlicenses, prices and costs, suppliers and customers; and (c) information regarding the skills and compensation of\nother service providers of the Corporation.\n1.3 Third Par_ty Information. Executive understands, in addition, that the Corporation has received and in the\nfuture will receive from third parties, including clients, customers, consultants, licensees or affiliates, confidential or\nproprietary information (“Third Party Information"). Executive understands that the Corporation has a duty to\nmaintain the confidentiality ofsuch Third Party Information and to use itonly for certain limited purposes. During the\nService Period and thereafter, Executive will hold Third Party Information in the strictest confidence and will not\ndisclose Third Party Information to anyone (otherthan Corporation personnel who need to know such information in\nconnection with their work for the Corporation) or use Third Party Information (except in connection with the\nperformance of Executive's Services forthe Corporation), unless expressly authorized by the Corporation in writing.\n1.4 No Improper Use of Information of Prior Employers and Others. During the Service Period, Executive will\nnot improperly use or disclose any confidential information or trade secrets, if any, of any former or current\nemployer or any other person to whom Executive has an obligation of confidentiality, and Executive will not bring\nonto the Corporation premises any unpublished documents or any property belonging to any former or current\nemployer or any other person to whom Executive has an obligation of confidentiality unless consented to in writing\nby that former or current employer or person. In the performance of his duties, Executive will only use information\nwhich is generally known and used by persons with training and experience comparable to his own, which is\ncommon knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or\ndeveloped by the Corporation.\nA-l\f2. Assignmentoflnventions.\n2.1 Proprietary Rights. The term “Proprielary Rights" shall mean all trade secrets, patent, copyright, mask\nwork and other intellectual property rights throughout the world.\n2.2 Prior Inventions. Inventions, if any, patented or unpatented, which Executive made prior to the\ncommencement of the Service Period are excluded from the scope of this Agreement. To preclude any possible\nuncertainty, Executive has set forth on Attachment B (Previous Inventions) attached hereto a complete list of all\nInventions that Executive has or caused to be (alone or jointly with others) conceived, developed or reduced to\npractice prior to the commencement of the Service Period, that Executive considers to be his property or the\nproperty of third parties and that Executive wishes to have excluded from the scope of this Agreement (collectively\nreferred to as “Prior Inventions"). If such disclosure would cause Executive to violate any prior confidentiality\nagreement, Executive shall not list such Prior Inventions in Attachment B but only disclose a cursory name for each\nsuch Invention, a listing of the party(ies) to whom it belongs and the fact that full disclosure as to such inventions\nhas not been made for that reason. A space is provided on Attachment B for such purpose. If no such disclosure is\nattached, Executive represents that there are no Prior Inventions. If, during the Service Period, Executive\nincorporates a Prior Invention into a Corporation product, process or machine, the Corporation is hereby granted\nand shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with rights to sublicense\nthrough multiple tiers of sublicensees) to make, have made, modify, use and sell such Prior Invention.\nNotwithstanding the foregoing, Executive agrees that he will not incorporate, or permit to be incorporated, Prior\nInventions in any Corporation Inventions without the Corporation's prior written consent.\n2.3 Assignment of Inventions. Subject to Sections 2.4 and 2.6, Executive hereby assigns, and agrees to\nassign in the future when any such Inventions or Proprietary Rights are first reduced to practice or first fixed in a\ntangible medium, as applicable, to the Corporation all right, title and interest in and to any and all Inventions (and all\nProprietary Rights with respect thereto) whether or not patentable or registrable under copyright or similar statutes,\nmade or conceived or reduced to practice or learned by Executive, either alone orjointly with others, during the\nService Period. Inventions assigned to the Corporation, or to a third party as directed by the Corporation pursuant\nto this Section 2, are hereinafter referred to as “Corporation Inventions."\n2.4 Non-assignable Inventions. This Agreement does not apply to an Invention which the Executive developed\nentirely on his or her own time without using the Company's equipment, supplies, facilities, or trade secret\ninformation except forthose inventions that either:\n0 Relate at the time of conception or reduction to practice of the invention to the Company's business, or\nactual or demonstrably anticipated research or development of the Company; or\n0 Result from any Services performed by the Executive forthe Company.\n2.5. Limited Exclusion Notification. Executive has reviewed the notification on Attachment A (Limited\nExclusion Notification) and agrees that his signature acknowledges receipt of the notification.\n2.6 Obligation to Keep Corporation Informed. During the Service Period, and for twelve (12) months after\ntermination of the Service Period, Executive will fully disclose in writing to the Corporation all Inventions authored,\nconceived or reduced to practice by Executive, either alone or jointly with others, within no more than thirty\n(30) days after creation. In addition, Executive will disclose to the Corporation all patent applications filed within a\nyear after termination of the Service Period by Executive, or on his behalf, within no more than thirty (30) days after\nfiling. At the time of each such disclosure, Executive will advise the Corporation in writing of any Inventions that he\nbelieves fully qualify for exemption under Section 2.4 of this Agreement, and Executive will, at that time, provide all\nwritten evidence necessary to substantiate that belief. The Corporation will keep in confidence and will not use for\nany purpose or disclose to third parties without Executive's consent any confidential information disclosed in writing\nto the Corporation pursuant to this Agreement relating to Inventions that qualify fully for exemption under the\nprovisions of Section 2.4 of this Agreement. Executive will preserve the confidentiality of any Invention that does not\nfully qualify for exemption under Section 2.4 of this Agreement.\nA-2\n2.7 Works for Hire. Executive acknowledges that all original works of authorship which are made by Executive\n(solely orjointly with others) within the scope of Service and which are protectable by copyright are “works made for\nhire,” pursuant to United States Copyright Act (17 U.S.C., Section 101) and shall be the sole property of the\nCorporation.\n2.8 Enforcement of Proprietary Rights. Executive will assist the Corporation, or its nominee, to obtain and\nenforce United States and foreign Proprietary Rights relating to Corporation Inventions in any and all countries, and\nsuch Proprietary Rights and Corporation Inventions shall be and remain the sole and exclusive property of the\nCorporation, or its nominee, whether or not patented or copyrighted. Accordingly, Executive will promptly execute,\nverify and deliver such documents and perform such other acts (including appearances as a witness and assistance\nor cooperation in legal proceedings) as the Corporation may reasonably request in applying for, obtaining,\nperfecting, evidencing, sustaining and enforcing such Proprietary Rights and the assignment thereof. This obligation\nshall survive and continue beyond the termination of the Service Period, but the Corporation shall compensate\nExecutive at a reasonable rate after his termination for the time actually spent providing such assistance.\n2.9 Appointment of Corporation as Agent. If, after reasonable effort, the Corporation is unable to secure\nExecutive's signature on any document needed in connection with the actions specified herein, Executive hereby\nirrevocably designates and appoints the Corporation and its duly authorized officers and agents as Executive's\nagents and attorneys-in-fact, which appointment is coupled with an interest, to act for and in Executive's behalf to\nexecute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of this\nAgreement with the same legal force and effect as if executed by Executive. Executive hereby waives and\nquitclaims to the Corporation any and all claims, of any nature whatsoever, which Executive now or may hereafter\nhave for infringement of any Proprietary Rights assigned hereunder to the Corporation.\n3. Records.\nExecutive agrees to keep and maintain adequate and current records (in the form of notes, sketches, drawings and\nin any other form that may be required by the Corporation) of all Proprietary Information developed by Executive\nand all Inventions made by Executive during the Service Period, which records shall be available to and remain the\nsole property of the Corporation at all times.\n4. Non-Competition Obligation.\nExecutive agrees that during the Service Period, Executive will not provide any services or engage in any\nemployment or business activity which is competitive with, or would otherwise conflict with, Executive's Service to\nthe Corporation, without the Corporation's express written consent. Executive agrees further that during the Service\nPeriod and for two (2) years after the termination of the Service Period, Executive will not, either directly or through\nothers, use trade secret information of the Company to solicit or attempt to solicit any customer, vendor, employee,\nindependent contractor or consultant of the Corporation to terminate his or her relationship with the Corporation in\norder to become a customer, vendor, employee, consultant or independent contractor to or for any other person or\nentity including, without limitation, Executive.\n5. Non-Solicitation With the Corporation.\nExecutive covenants and agrees that, for a period of two (2) years following termination of the Service Period,\nExecutive will not use trade secret information of the Corporation to solicit or engage in competitive business with\nCorporation's existing or potential vendors or customers at the time of his separation from the Corporation and\nExecutive will not encourage or solicit any customer, vendor, employee or consultant to leave the Corporation for\nany reason.\nA-3\n6. No Conflicting Obligation.\nExecutive represents that his performance of all the terms of this Agreement and as an executive to the Corporation\ndoes notand will not breach any agreementto keep information acquired by Executive priorto the Service Period in\nconfidence or trust. Executive has not entered into, and agrees he will not enter into, any agreement either written\nor oral in conflict herewith.\n7. Return of Corporation Documents.\nUpon termination of the Service Period, Executive will deliver to the Corporation any and all drawings, notes,\nmemoranda, specifications, devices, formulas, and documents, together with all copies thereof, and any other\nmaterial containing, comprising or disclosing any Corporation Inventions, Proprietary Information and Third Party\nInformation. Executive further agrees that any property situated on the Corporation's premises and owned by the\nCorporation, including disks and other storage media, filing cabinets or other work areas, is subjectto inspection by\nthe Corporation at any time with or without notice. Prior to leaving, Executive will cooperate with the Corporation in\ncompleting and signing the Corporation's termination statement, which will include, at a minimum, the certifications\nset forth in Attachment C.\n8. Legal and Eguitable Remedies.\nBecause Executive's services are personal and unique and because Executive may have access to and become\nacquainted with the Proprietary Information of the Corporation, the Corporation shall have the right to enforce this\nAgreement and any of its provisions by injunction, specific performance or other equitable relief, without bond and\nwithout prejudice to any other rights and remedies that the Corporation may have for a breach of this Agreement.\n9. Notices.\nAny notices required or permitted hereunder shall be given to the appropriate party at the address specified below\nor at such other address as the party shall specify in writing. Such notice shall be deemed given upon personal\ndelivery to the appropriate address or, if sent by certified or registered mail, three (3) days afterthe date of mailing.\n10. General Provisions.\n10.1 Governing Law; Consent to Personal |urisdiction; Attorney's Fees. This Agreement and the legal\nrelations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the\nState of Nevada, without regard to its conflict of laws rules. The Corporation and Executive hereby irrevocably and\nunconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be\nbrought only in the State of Nevada (the “Nevada Court”), and not in any other state or federal court in the United\nStates ofAmerica or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Nevada\nCourt for purposes of any action or proceeding arising out of or in connection with this Agreement, and (iii) waive\nany objection to the laying ofvenue of any such action or proceeding in the Nevada Court and (iv) waive, and agree\nnot to plead or to make, any claim that any such action or proceeding brought in the Nevada Court has been\nbrought in an improper or inconvenient forum.\n10.2 Severability. If one or more of the provisions contained in this Agreement shall, for any reason, be held to\nbe invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the\nother provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or\nunenforceable provision had never been contained herein. If, moreover, any one or more of the provisions\ncontained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical\nscope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent\ncompatible with the applicable law as it shall then appear.\nA-4\n10.3 Successors and Assigns. This Agreement will be binding upon Executive's heirs, executors,\nadministrators and other legal representatives and will be forthe benefits of the Corporation, its successors, and its\nassigns.\n10.4 Survival. Executive agrees that the provisions of this Agreement shall survive the termination of the\nService Period and the assignment of this Agreement by the Corporation to any successor-in-interest or other\nassignee, regardless of the reason or reasons for termination and whether such termination is voluntary or\ninvoluntary.\n10.5 Nature of Relationship. This Agreement shall not be deemed nor does it create an employment contract\nbetween the Corporation (or any of its subsidiaries or related companies) and Executive. Executive is an\nindependent contractor and shall not be deemed an employee of the Corporation for purposes of employee\nbenefits, income tax withholding, F.l.C.A. taxes, unemployment benefits or any other purpose. Executive's term of\nservice is defined in Section 7 of the Executive Retainer Agreement between Executive and the Company signed\nconcurrently herewith.\n10.6 Waiver. No waiver by the Corporation of any breach of this Agreement shall be a waiver of any preceding\nor succeeding breach. No waiver by the Corporation of any right under this Agreement shall be construed as a\nwaiver of any other right. The Corporation shall not be required to give notice to enforce strict adherence to all\nterms of this Agreement.\n10.7 Advice of Counsel. Executive acknowledges that, in executing this Agreement, Executive has had the\nopportunity to seek the advice of independent legal counsel, and Executive has read and understood all of the\nterms and provisions of this Agreement. This Agreement shall not be construed against any party by reason of the\ndrafting or preparation hereof.\n10.8 Modification. This Agreement may not be changed, modified, released, discharged, abandoned or\notherwise amended, in whole or in part, except by an instrument in writing, signed by Executive and the\nCorporation. Executive agrees that any subsequent change or changes in Executive's duties, salary, or\ncompensation shall not affect the validity or scope of this Agreement.\n10.9 Entire Agreement. The obligations of this Agreement shall apply to any time during which Executive\npreviously provided service, or will in the future provide service, to the Corporation as a consultant or agent if no\nother agreement governs nondisclosure and assignment of inventions during such period. This Agreement is the\nfinal, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes\nand merges all prior discussions between us. No modification of or amendment to this Agreement, nor any waiver\nof any rights under this Agreement, will be effective unless in writing and signed by the party to be charged. The\nheadings in this Agreement are used for convenience only and are not to be considered a part of this Agreementor\nbe used to interpret the meaning ofany part of this Agreement.\n10.10 Counterparts. This Agreement may be signed in two counterparts, each shall be deemed an original\nand both of which shall together constitute one agreement. The parties hereto agree to accept a facsimile\ntransmission copy of their respective actual signatures as evidence of their actual signatures to this Agreement and\nany modification or amendment of this Agreement; provided, however, that each party who produces a facsimile\nsignature agrees, by the express terms hereof, to place, promptly aftertransmission of his or her signature by fax, a\ntrue and correct original copy of his or her signature in overnight mail to the address of the other party.\n[The remainder of this page has been intentionally left blank. Signature page(s) to follow]\nA-5\nI HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE COMPLETELY FILLED\nOUT ATTACHMENT B TO THIS AGREEMENT. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO ME\nTO INDUCE ME TO SIGN THIS AGREEMENT. I SIGN THIS AGREEMENT VOLUNTARILY AND FREELY.\nDated:\nBy:\nPrinted NarrWing LokJ onathan 50\nACCEPTED AND AGREED TO:\nCOSMOS GROUP HOLDINGS, INC.\nBy: MikyY.C.Wan\n \nIts: Chief Executive Officer, Interim Chief Financial\nOfficer and President\n \nSignature Page to Proprietary Information, Inventions and Non-Competition Agreement\nA-6	EXHIBIT A\nPROPRIETARY INFORMATION, INVENTIONS AND NON-COMPETITION AGREEMENT\nThis PROPRIETARY INFORMATION, INVENTIONS and NON-COMPETITION AGREEMENT (the "Agreement") is\nmade and entered into as of J uly 19, 2019 (the "Effective Date"), by and between Cosmos Group Holdings, a Nevada\ncorporation ("Corporation") and Wing Lok J onathan SO ("E xecutive").\nRECITALS\nWHEREAS, the parties desire to assure the confidentia status and proprietary nature of the information which may\nbe disclosed by Corporation to the Executive; and\nAGREEMENT\nNOW THEREFORE, in reliance upon and in consideration of the following undertaking, the parties agree as follows:\n1. Nondisclosure.\n1.1 Recognition of Corporation's Rights; Nondisclosure. At all times during the period of time Executive is\nengaged as a consultant, independent contractor or employee of the Corporation ("Service Period") and provides\nthe necessary and requested services in such capacity ("Services"), Executive will hold in strictest confidence and\nwill not disclose, use, lecture upon or publish any of the Corporation's roprietary Information (defined below),\nexcept as such disclosure, use or publication may be required in connection with Service to the Corporation, or\nunless the Corporation expressly authorizes such disclosure in writing. Executive will obtain Corporation's written\napproval before publishing or submitting for publication any material (written, verbal, or otherwise) that relates to\nServices and/or incorporates any Proprietary Information. Executive hereby assigns to the Corporation any rights\nExecutive may have or acquire in such Proprietary Information and recognizes that all roprietary Information shall\nbe the sole property of the Corporation and its assigns.\n1.2 Proprietary Information. The term "Proprietary Information" shall mean any and all confidential and/or\nproprietary knowledge, data or information of the Corporation, including that which Executive may produce in\nservice to the Corporation. By way of illustration but not limitation, "Proprietary Information" includes (a) trade\nsecrets, inventions, mask works, ideas, processes, formulas, source and object codes, data, programs, other works\nof authorship, know-how, improvements, discoveries, developments, designs and techniques (hereinafter\ncollectively referred to as "Inventions"); and (b) information regarding plans for research, development, new\nproducts, marketing and selling, business plans, budgets and unpublished financial statements, pricing strategies,\nlicenses, prices and costs, suppliers and customers; and (c) information regarding the skills and compensation of\nother service providers of the Corporation.\n1.3 Third Party Information. Executive understands, in addition, that the Corporation has received and in the\nfuture will receive from third parties, including clients, customers, consultants, licensees or affiliates, confidential or\nproprietary information ("Third Party Information"). Executive understands that the Corporation has a duty to\nmaintain the confidentiality of such Third Party Information and to use it only for certain limited purposes. During the\nService Period and thereafter, Executive wil hold Third Party Information in the strictest confidence and wil not\ndisclose Third Party Information to anyone (other than Corporation personnel who need to know such information in\nconnection with their work for the Corporation) or use Third Party Information (except in connection with the\nperformance of Executive's Services for the Corporation), unless expressly authorized by the Corporation in writing.\n1.4 No Improper Use of Information of Prior Employers and Others. During the Service Period, Executive will\nnot improperly use or disclose any confidential information or trade secrets, if any, of any former or current\nemployer or any other person to whom Executive has an obligation of confidentiality, and Executive will not bring\nonto the Corporation premises any unpublished documents or any property belonging to any former or current\nemployer or any other person to whom Executive has an obligation of confidentiality unless consented to in writing\nby that former or current employer or person. In the performance of his duties, Executive will only use information\nwhich is generally known and used by persons with training and experience comparable to his own, which is\ncommon knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or\ndeveloped by the Corporation.\nA-1\n2. Assignment of Inventions.\n2.1 Proprietary Rights. The term "Proprietary Rights" shall mean all trade secrets, patent, copyright, mask\nwork and other intellectual property rights throughout the world.\n2.2 Prior Inventions. Inventions, if any, patented or unpatented, which Executive made prior to the\ncommencement of the Service Period are excluded from the scope of this Agreement. To preclude any possible\nuncertainty, Executive has set forth on Attachment B Previous Inventions) attached hereto a complete list of all\nInventions that Executive has or caused to be (alone or jointly with others) conceived, developed or reduced to\npractice prior to the commencement of the Service Period, that Executive considers to be his property or the\nproperty of third parties and that Executive wishes to have excluded from the scope of this Agreement (collectively\nreferred to as "Prior Inventions"). If such disclosure would cause Executive to violate any prior confidentiality\nagreement, Executive shall not list such Prior Inventions in Attachment B but only disclose a cursory name for each\nsuch Invention, a listing of the party(ies) to whom it belongs and the fact that full disclosure as to such inventions\nhas not been made for that reason. A space is provided on Attachment B for such purpose. If no such disclosure is\nattached, Executive represents that there are no Prior Inventions. If, during the Service Period, Executive\nincorporates a Prior Invention into a Corporation product, process or machine, the Corporation is hereby granted\nand shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with rights to sublicense\nthrough multiple tiers of sublicensees) to make, have made, modify, use and sell such Prior Invention.\nNotwithstanding the foregoing, Executive agrees that he will not incorporate, or permit to be incorporated, Prior\nInventions in any Corporation Inventions without the Corporation's prior written consent.\n2.3 Assignment of Inventions. Subject to Sections 2.4 and 2.6, Executive hereby assigns, and agrees to\nassign in the future when any such Inventions or Proprietary Rights are first reduced to practice or first fixed in\na\ntangible medium, as applicable, to the Corporation all right, title and interest in and to any and all Inventions (and all\nProprietary Rights with respect thereto) whether or not patentable or registrable under copyright or similar statutes,\nmade or conceived or reduced to practice or learned by Executive, either alone or jointly with others, during the\nService Period. Inventions assigned to the Corporation, or to a third party as directed by the Corporation pursuant\nto this Section 2, are hereinafter referred to as "Corporation Inventions."\n2.4 Non-assignable Inventions. This Agreement does not apply to an Invention which the Executive developed\nentirely on his or her own time without using the Company's equipment, supplies, facilities, or trade secret\ninformation except for those inventions that either:\nRelate at the time of conception or reduction to practice of the invention to the Company's business, or\nactual or demonstrably anticipated research or development of the Company; or\nResult from any Services performed by the Executive for the Company.\n2.5. Limited Exclusion Notification. Executive has reviewed the notification on Attachment A (Limited\nExclusion Notification) and agrees that his signature acknowledges receipt of the notification.\n2.6 Obligation to Keep Corporation Informed. During the Service Period, and for twelve (12) months after\ntermination of the Service Period, xecutive will fully disclose in writing to the Corporation all Inventions authored,\nconceived or reduced to practice by Executive, either alone or jointly with others, within no more than thirty\n(30) days after creation. In addition, Executive will disclose to the Corporation all patent applications filed within a\nyear after termination of the Service Period by Executive, or on his behalf, within no more than thirty (30) days after\nfiling. At the time of each such disclosure, Executive will advise the Corporation in writing of any Inventions that he\nbelieves fully qualify for exemption under Section 2.4 of this Agreement, and Executive will, at that time, provide all\nwritten evidence necessary to substantiate that belief. The Corporation will keep in confidence and will not use for\nany purpose or disclose to third parties without Executive's consent any confidential information disclosed in writing\nto the Corporation pursuant to this Agreement relating to Inventions that qualify fully for exemption under the\nprovisions of Section 2.4 of this Agreement. Executive will preserve the confidentiality of any Invention that does not\nfully qualify for exemption under Section 2.4 of this Agreement.\nA-2\n2.7 Works for Hire. Executive acknowledges that all original works of authorship which are made by xecutive\n(solely or jointly with others) within the scope of Service and which are protectable by copyright are "works made for\nhire," pursuant to United States Copyright Act (17 U.S.C., Section 101) and shall be the sole property of the\nCorporation.\n2.8 Enforcement of Proprietary Rights. Executive will assist the Corporation or its nominee, to obtain and\nenforce United States and foreign Proprietary Rights relating to Corporation Inventions in any and all countries, and\nsuch Proprietary Rights and Corporation Inventions shall be and remain the sole and exclusive property of the\nCorporation, or its nominee, whether or not patented or copyrighted. Accordingly, Executive will promptly execute,\nverify and deliver such documents and perform such other acts (including appearances as a witness and assistance\nor cooperation in legal proceedings) as the Corporation may reasonably request in applying for, obtaining,\nperfecting, evidencing, sustaining and enforcing such Proprietary Rights and the assignment thereof. This obligation\nshall survive and continue beyond the termination of the Service Period, but the Corporation shall compensate\nExecutive at a reasonable rate after his termination for the time actually spent providing such assistance.\n2.9 Appointment of Corporation as Agent. If, after reasonable effort, the Corporation is unable to secure\nExecutive's signature on any document needed in connection with the actions specified herein, xecutive hereby\nirrevocably designates and appoints the Corporation and its duly authorized officers and agents as Executive's\nagents and attorneys-in-fact, which appointment is coupled with an interest, to act for and in Executive's behalf to\nexecute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of this\nAgreement with the same legal force and effect as if executed by Executive. Executive hereby waives and\nquitclaims to the Corporation any and all claims, of any nature whatsoever, which Executive now or may hereafter\nhave for infringement of any Proprietary Rights assigned hereunder to the Corporation\n3. Records.\nExecutive agrees to keep and maintain adequate and current records (in the form of notes, sketches, drawings and\nin any other form that may be required by the Corporation) of all roprietary Information developed by Executive\nand all Inventions made by Executive during the Service Period, which records shall be available to and remain the\nsole property of the Corporation at all times.\n4.\nNon-Competition Obligation.\nExecutive agrees that during the Service Period, Executive will not provide any services or engage in any\nemployment or business activity which is competitive with, or would otherwise conflict with, Executive's Service to\nthe Corporation, without the Corporation's express written consent. Executive agrees further that during the Service\nPeriod and for two (2) years after the termination of the Service Period, Executive wil not, either directly or through\nothers, use trade secret information of the Company to solicit or attempt to solicit any customer, vendor, employee,\nindependent contractor or consultant of the Corporation to terminate his or her relationship with the Corporation in\norder to become a customer, vendor, employee, consultant or independent contractor to or for any other person or\nentity including, without limitation, Executive.\n5.\nNon-Solicitation With the Corporation.\nExecutive covenants and agrees that, for a period of two (2) years following termination of the Service Period,\nExecutive will not use trade secret information of the Corporation to solicit or engage in competitive business with\nCorporation's existing or potential vendors or customers at the time of his separation from the Corporation and\nExecutive will not encourage or solicit any customer, vendor, employee or consultant to leave the Corporation for\nany reason.\nA-3\n6. No Conflicting Obligation.\nExecutive represents that his performance of all the terms of this Agreement and as an executive to the Corporation\ndoes not and will not breach any agreement to keep information acquired by Executive prior to the Service Period in\nconfidence or trust. Executive has not entered into, and agrees he will not enter into, any agreement either written\nor oral in conflict herewith.\n7. Return of Corporation Documents.\nUpon termination of the Service Period, Executive will deliver to the Corporation any and all drawings, notes,\nmemoranda, specifications, devices, formulas, and documents, together with all copies thereof, and any other\nmateria containing, comprising or disclosing any Corporation Inventions, roprietary Information and Third Party\nInformation. Executive further agrees that any property situated on the Corporation's premises and owned by the\nCorporation, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by\nthe Corporation at any time with or without notice. Prior to leaving, Executive will cooperate with the Corporation in\ncompleting and signing the Corporation's termination statement which will include, at a minimum, the certifications\nset forth in Attachment C.\n8. Legal and Equitable Remedies.\nBecause Executive's services are personal and unique and because Executive may have access to and become\nacquainted with the Proprietary Information of the Corporation, the Corporation shall have the right to enforce this\nAgreement and any of its provisions by injunction, specific performance or other equitable relief, without bond and\nwithout prejudice to any other rights and remedies that the Corporation may have for a breach of this Agreement\n9. Notices.\nAny notices required or permitted hereunder shall be given to the appropriate party at the address specified below\nor at such other address as the party shall specify in writing. Such notice shall be deemed given upon persona\ndelivery to the appropriate address or, if sent by certified or registered mail, three (3) days after the date of mailing.\n10. General Provisions.\n10.1 Governing Law; Consent to Personal urisdiction; Attorney's Fees. This Agreement and the legal\nrelations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the\nState of Nevada, without regard to its conflict of laws rules. The Corporation and Executive hereby irrevocably and\nunconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be\nbrought only in the State of Nevada (the "Nevada Court"), and not in any other state or federal court in the United\nStates of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Nevada\nCourt for purposes of any action or proceeding arising out of or in connection with this Agreement, and (iii) waive\nany objection to the laying of venue of any such action or proceeding in the Nevada Court and (iv) waive, and agree\nnot to plead or to make, any claim that any such action or proceeding brought in the Nevada Court has been\nbrought in an improper or inconvenient forum.\n10.2 Severability. If one or more of the provisions contained in this Agreement shall, for any reason, be held to\nbe invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the\nother provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or\nunenforceable provision had never been contained herein. If, moreover, any one or more of the provisions\ncontained in this Agreement shall for any reason be held to be excessively broad as to duration, geographica\nscope, activity or subject, it shall be construed by limiting and reducing it, SO as to be enforceable to the extent\ncompatible with the applicable law as it shall then appear.\nA-4\n10.3 Successors and Assigns. This Agreement will be binding upon Executive's heirs, executors,\nadministrators and other legal representatives and will be for the benefits of the Corporation, its successors, and its\nassigns.\n10.4 Survival. Executive agrees that the provisions of this Agreement shall survive the termination of the\nService Period and the assignment of this Agreement by the Corporation to any successor-in-interest or other\nassignee, regardless of the reason or reasons for termination and whether such termination is voluntary or\ninvoluntary.\n10.5 Nature of Relationship. This Agreement shall not be deemed nor does it create an employment contract\nbetween the Corporation (or any of its subsidiaries or related companies) and Executive. Executive is an\nindependent contractor and shall not be deemed an employee of the Corporation for purposes of employee\nbenefits, income tax withholding, F.I.C.A. taxes, unemployment benefits or any other purpose. Executive's term of\nservice is defined in Section 7 of the Executive Retainer Agreement between Executive and the Company signed\nconcurrently herewith.\n10.6 Waiver. No waiver by the Corporation of any breach of this Agreement shall be a waiver of any preceding\nor succeeding breach. No waiver by the Corporation of any right under this Agreement shall be construed as a\nwaiver of any other right. The Corporation shall not be required to give notice to enforce strict adherence to all\nterms of this Agreement.\n10.7 Advice of Counsel. Executive acknowledges that, in executing this Agreement, Executive has had the\nopportunity to seek the advice of independent legal counsel, and Executive has read and understood all of the\nterms and provisions of this Agreement. This Agreement shall not be construed against any party by reason of the\ndrafting or preparation hereof.\n10.8 Modification. This Agreement may not be changed, modified, released, discharged, abandoned or\notherwise amended, in whole or in part, except by an instrument in writing, signed by Executive and the\nCorporation. Executive agrees that any subsequent change or changes in Executive's duties, salary, or\ncompensation shall not affect the validity or scope of this Agreement.\n10.9 Entire Agreement. The obligations of this Agreement shall apply to any time during which Executive\npreviously provided service, or will in the future provide service, to the Corporation as a consultant or agent if no\nother agreement governs nondisclosure and assignment of inventions during such period. This Agreement is the\nfinal, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes\nand merges all prior discussions between us. No modification of or amendment to this Agreement, nor any waiver\nof any rights under this Agreement, wil be effective unless in writing and signed by the party to be charged. The\nheadings in this Agreement are used for convenience only and are not to be considered a part of this Agreement or\nbe used to interpret the meaning of any part of this Agreement.\n10.10 Counterparts. This Agreement may be signed in two counterparts, each shall be deemed an original\nand both of which shall together constitute one agreement. The parties hereto agree to accept a facsimile\ntransmission copy of their respective actual signatures as evidence of their actual signatures to this Agreement and\nany modification or amendment of this Agreement; provided, however, that each party who produces a facsimile\nsignature agrees, by the express terms hereof, to place, promptly after transmission of his or her signature by fax, a\ntrue and correct original copy of his or her signature in overnight mail to the address of the other party.\n[The remainder of this page has been intentionally left blank. Signature page(s) to follow]\nA-5\nI HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE COMPLETELY FILLED\nOUT ATTACHMENT B TO THIS AGREEMENT. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO ME\nTO INDUCE ME TO SIGN THIS AGREEMENT. I SIGN THIS AGREEMENT VOLUNTARILY AND FREELY.\nDated:\nBy:\nPrinted Naming LokJ onathan SO\nACCEPTED AND AGREED TO:\nCOSMOS GROUP HOLDINGS, INC.\nBy:\nMiky Y.C. Wan\nIts:\nChief Executive Officer, Interim Chief Financial\nOfficer and President\nSignature Page to Proprietary Information, Inventions and Non-Competition Agreement\nA-6	EXHIBIT A\nPROPRIETARY INFORMATION, INVENTIONS AND NON-COMPETITION AGREEMENT\nThis PROPRIETARY INFORMATION, INVENTIONS and NON-COMPETITION AGREEMENT (the “Agreement”) is\nmade and entered into as of July 19, 2019 (the “Effective Date”), by and between Cosmos Group Holdings, a Nevada\ncorporation (“Corporation”) and Wing Lok Jonathan SO (“Executive”).\nRECITALS\nWHEREAS, the parties desire to assure the confidential status and proprietary nature of the information which may\nbe disclosed by Corporation to the Executive; and\nAGREEMENT\nNOW THEREFORE, in reliance upon and in consideration of the following undertaking, the parties agree as follows:\n1. Nondisclosure.\n1.1 Recognition of Corporation’s Rights; Nondisclosure. At all times during the period of time Executive is\nengaged as a consultant, independent contractor or employee of the Corporation (“Service Period”) and provides\nthe necessary and requested services in such capacity (“Services”), Executive will hold in strictest confidence and\nwill not disclose, use, lecture upon or publish any of the Corporation’s Proprietary Information (defined below),\nexcept as such disclosure, use or publication may be required in connection with Service to the Corporation, or\nunless the Corporation expressly authorizes such disclosure in writing. Executive will obtain Corporation’s written\napproval before publishing or submitting for publication any material (written, verbal, or otherwise) that relates to\nServices and/or incorporates any Proprietary Information. Executive hereby assigns to the Corporation any rights\nExecutive may have or acquire in such Proprietary Information and recognizes that all Proprietary Information shall\nbe the sole property of the Corporation and its assigns.\n1.2 Proprietary Information. The term “Proprietary Information” shall mean any and all confidential and/or\nproprietary knowledge, data or information of the Corporation, including that which Executive may produce in\nservice to the Corporation. By way of illustration but not limitation, “Proprietary Information” includes (a) trade\nsecrets, inventions, mask works, ideas, processes, formulas, source and object codes, data, programs, other works\nof authorship, know-how, improvements, discoveries, developments, designs and techniques (hereinafter\ncollectively referred to as “Inventions”); and (b) information regarding plans for research, development, new\nproducts, marketing and selling, business plans, budgets and unpublished financial statements, pricing strategies,\nlicenses, prices and costs, suppliers and customers; and (c) information regarding the skills and compensation of\nother service providers of the Corporation.\n1.3 Third Party Information. Executive understands, in addition, that the Corporation has received and in the\nfuture will receive from third parties, including clients, customers, consultants, licensees or affiliates, confidential or\nproprietary information (“Third Party Information”). Executive understands that the Corporation has a duty to\nmaintain the confidentiality of such Third Party Information and to use it only for certain limited purposes. During the\nService Period and thereafter, Executive will hold Third Party Information in the strictest confidence and will not\ndisclose Third Party Information to anyone (other than Corporation personnel who need to know such information in\nconnection with their work for the Corporation) or use Third Party Information (except in connection with the\nperformance of Executive’s Services for the Corporation), unless expressly authorized by the Corporation in writing.\n1.4 No Improper Use of Information of Prior Employers and Others. During the Service Period, Executive will\nnot improperly use or disclose any confidential information or trade secrets, if any, of any former or current\nemployer or any other person to whom Executive has an obligation of confidentiality, and Executive will not bring\nonto the Corporation premises any unpublished documents or any property belonging to any former or current\nemployer or any other person to whom Executive has an obligation of confidentiality unless consented to in writing\nby that former or current employer or person. In the performance of his duties, Executive will only use information\nwhich is generally known and used by persons with training and experience comparable to his own, which is\ncommon knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or\ndeveloped by the Corporation.\nA-1\n2. Assignment of Inventions.\n2.1 Proprietary Rights. The term “Proprietary Rights” shall mean all trade secrets, patent, copyright, mask\nwork and other intellectual property rights throughout the world.\n2.2 Prior Inventions. Inventions, if any, patented or unpatented, which Executive made prior to the\ncommencement of the Service Period are excluded from the scope of this Agreement. To preclude any possible\nuncertainty, Executive has set forth on Attachment B (Previous Inventions) attached hereto a complete list of all\nInventions that Executive has or caused to be (alone or jointly with others) conceived, developed or reduced to\npractice prior to the commencement of the Service Period, that Executive considers to be his property or the\nproperty of third parties and that Executive wishes to have excluded from the scope of this Agreement (collectively\nreferred to as “Prior Inventions”). If such disclosure would cause Executive to violate any prior confidentiality\nagreement, Executive shall not list such Prior Inventions in Attachment B but only disclose a cursory name for each\nsuch Invention, a listing of the party(ies) to whom it belongs and the fact that full disclosure as to such inventions\nhas not been made for that reason. A space is provided on Attachment B for such purpose. If no such disclosure is\nattached, Executive represents that there are no Prior Inventions. If, during the Service Period, Executive\nincorporates a Prior Invention into a Corporation product, process or machine, the Corporation is hereby granted\nand shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with rights to sublicense\nthrough multiple tiers of sublicensees) to make, have made, modify, use and sell such Prior Invention.\nNotwithstanding the foregoing, Executive agrees that he will not incorporate, or permit to be incorporated, Prior\nInventions in any Corporation Inventions without the Corporation’s prior written consent.\n2.3 Assignment of Inventions. Subject to Sections 2.4 and 2.6, Executive hereby assigns, and agrees to\nassign in the future when any such Inventions or Proprietary Rights are first reduced to practice or first fixed in a\ntangible medium, as applicable, to the Corporation all right, title and interest in and to any and all Inventions (and all\nProprietary Rights with respect thereto) whether or not patentable or registrable under copyright or similar statutes,\nmade or conceived or reduced to practice or learned by Executive, either alone or jointly with others, during the\nService Period. Inventions assigned to the Corporation, or to a third party as directed by the Corporation pursuant\nto this Section 2, are hereinafter referred to as “Corporation Inventions.”\n2.4 Non-assignable Inventions. This Agreement does not apply to an Invention which the Executive developed\nentirely on his or her own time without using the Company’s equipment, supplies, facilities, or trade secret\ninformation except for those inventions that either:\n•\nRelate at the time of conception or reduction to practice of the invention to the Company’s business, or\nactual or demonstrably anticipated research or development of the Company; or\n•\nResult from any Services performed by the Executive for the Company.\n2.5. Limited Exclusion Notification. Executive has reviewed the notification on Attachment A (Limited\nExclusion Notification) and agrees that his signature acknowledges receipt of the notification.\n2.6 Obligation to Keep Corporation Informed. During the Service Period, and for twelve (12) months after\ntermination of the Service Period, Executive will fully disclose in writing to the Corporation all Inventions authored,\nconceived or reduced to practice by Executive, either alone or jointly with others, within no more than thirty\n(30) days after creation. In addition, Executive will disclose to the Corporation all patent applications filed within a\nyear after termination of the Service Period by Executive, or on his behalf, within no more than thirty (30) days after\nfiling. At the time of each such disclosure, Executive will advise the Corporation in writing of any Inventions that he\nbelieves fully qualify for exemption under Section 2.4 of this Agreement, and Executive will, at that time, provide all\nwritten evidence necessary to substantiate that belief. The Corporation will keep in confidence and will not use for\nany purpose or disclose to third parties without Executive’s consent any confidential information disclosed in writing\nto the Corporation pursuant to this Agreement relating to Inventions that qualify fully for exemption under the\nprovisions of Section 2.4 of this Agreement. Executive will preserve the confidentiality of any Invention that does not\nfully qualify for exemption under Section 2.4 of this Agreement.\nA-2\n2.7 Works for Hire. Executive acknowledges that all original works of authorship which are made by Executive\n(solely or jointly with others) within the scope of Service and which are protectable by copyright are “works made for\nhire,” pursuant to United States Copyright Act (17 U.S.C., Section 101) and shall be the sole property of the\nCorporation.\n2.8 Enforcement of Proprietary Rights. Executive will assist the Corporation, or its nominee, to obtain and\nenforce United States and foreign Proprietary Rights relating to Corporation Inventions in any and all countries, and\nsuch Proprietary Rights and Corporation Inventions shall be and remain the sole and exclusive property of the\nCorporation, or its nominee, whether or not patented or copyrighted. Accordingly, Executive will promptly execute,\nverify and deliver such documents and perform such other acts (including appearances as a witness and assistance\nor cooperation in legal proceedings) as the Corporation may reasonably request in applying for, obtaining,\nperfecting, evidencing, sustaining and enforcing such Proprietary Rights and the assignment thereof. This obligation\nshall survive and continue beyond the termination of the Service Period, but the Corporation shall compensate\nExecutive at a reasonable rate after his termination for the time actually spent providing such assistance.\n2.9 Appointment of Corporation as Agent. If, after reasonable effort, the Corporation is unable to secure\nExecutive’s signature on any document needed in connection with the actions specified herein, Executive hereby\nirrevocably designates and appoints the Corporation and its duly authorized officers and agents as Executive’s\nagents and attorneys-in-fact, which appointment is coupled with an interest, to act for and in Executive’s behalf to\nexecute, verify and file any such documents and to do all other lawfully permitted acts to further the purposes of this\nAgreement with the same legal force and effect as if executed by Executive. Executive hereby waives and\nquitclaims to the Corporation any and all claims, of any nature whatsoever, which Executive now or may hereafter\nhave for infringement of any Proprietary Rights assigned hereunder to the Corporation.\n3. Records.\nExecutive agrees to keep and maintain adequate and current records (in the form of notes, sketches, drawings and\nin any other form that may be required by the Corporation) of all Proprietary Information developed by Executive\nand all Inventions made by Executive during the Service Period, which records shall be available to and remain the\nsole property of the Corporation at all times.\n4. Non-Competition Obligation.\nExecutive agrees that during the Service Period, Executive will not provide any services or engage in any\nemployment or business activity which is competitive with, or would otherwise conflict with, Executive’s Service to\nthe Corporation, without the Corporation’s express written consent. Executive agrees further that during the Service\nPeriod and for two (2) years after the termination of the Service Period, Executive will not, either directly or through\nothers, use trade secret information of the Company to solicit or attempt to solicit any customer, vendor, employee,\nindependent contractor or consultant of the Corporation to terminate his or her relationship with the Corporation in\norder to become a customer, vendor, employee, consultant or independent contractor to or for any other person or\nentity including, without limitation, Executive.\n5. Non-Solicitation With the Corporation.\nExecutive covenants and agrees that, for a period of two (2) years following termination of the Service Period,\nExecutive will not use trade secret information of the Corporation to solicit or engage in competitive business with\nCorporation’s existing or potential vendors or customers at the time of his separation from the Corporation and\nExecutive will not encourage or solicit any customer, vendor, employee or consultant to leave the Corporation for\nany reason.\nA-3\n6. No Conflicting Obligation.\nExecutive represents that his performance of all the terms of this Agreement and as an executive to the Corporation\ndoes not and will not breach any agreement to keep information acquired by Executive prior to the Service Period in\nconfidence or trust. Executive has not entered into, and agrees he will not enter into, any agreement either written\nor oral in conflict herewith.\n7. Return of Corporation Documents.\nUpon termination of the Service Period, Executive will deliver to the Corporation any and all drawings, notes,\nmemoranda, specifications, devices, formulas, and documents, together with all copies thereof, and any other\nmaterial containing, comprising or disclosing any Corporation Inventions, Proprietary Information and Third Party\nInformation. Executive further agrees that any property situated on the Corporation’s premises and owned by the\nCorporation, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by\nthe Corporation at any time with or without notice. Prior to leaving, Executive will cooperate with the Corporation in\ncompleting and signing the Corporation’s termination statement, which will include, at a minimum, the certifications\nset forth in Attachment C.\n8. Legal and Equitable Remedies.\nBecause Executive’s services are personal and unique and because Executive may have access to and become\nacquainted with the Proprietary Information of the Corporation, the Corporation shall have the right to enforce this\nAgreement and any of its provisions by injunction, specific performance or other equitable relief, without bond and\nwithout prejudice to any other rights and remedies that the Corporation may have for a breach of this Agreement.\n9. Notices.\nAny notices required or permitted hereunder shall be given to the appropriate party at the address specified below\nor at such other address as the party shall specify in writing. Such notice shall be deemed given upon personal\ndelivery to the appropriate address or, if sent by certified or registered mail, three (3) days after the date of mailing.\n10. General Provisions.\n10.1 Governing Law; Consent to Personal Jurisdiction; Attorney’s Fees. This Agreement and the legal\nrelations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the\nState of Nevada, without regard to its conflict of laws rules. The Corporation and Executive hereby irrevocably and\nunconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be\nbrought only in the State of Nevada (the “Nevada Court”), and not in any other state or federal court in the United\nStates of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Nevada\nCourt for purposes of any action or proceeding arising out of or in connection with this Agreement, and (iii) waive\nany objection to the laying of venue of any such action or proceeding in the Nevada Court and (iv) waive, and agree\nnot to plead or to make, any claim that any such action or proceeding brought in the Nevada Court has been\nbrought in an improper or inconvenient forum.\n10.2 Severability. If one or more of the provisions contained in this Agreement shall, for any reason, be held to\nbe invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the\nother provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or\nunenforceable provision had never been contained herein. If, moreover, any one or more of the provisions\ncontained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical\nscope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent\ncompatible with the applicable law as it shall then appear.\nA-4\n10.3 Successors and Assigns. This Agreement will be binding upon Executive’s heirs, executors,\nadministrators and other legal representatives and will be for the benefits of the Corporation, its successors, and its\nassigns.\n10.4 Survival. Executive agrees that the provisions of this Agreement shall survive the termination of the\nService Period and the assignment of this Agreement by the Corporation to any successor-in-interest or other\nassignee, regardless of the reason or reasons for termination and whether such termination is voluntary or\ninvoluntary.\n10.5 Nature of Relationship. This Agreement shall not be deemed nor does it create an employment contract\nbetween the Corporation (or any of its subsidiaries or related companies) and Executive. Executive is an\nindependent contractor and shall not be deemed an employee of the Corporation for purposes of employee\nbenefits, income tax withholding, F.I.C.A . taxes, unemployment benefits or any other purpose. Executive’s term of\nservice is defined in Section 7 of the Executive Retainer Agreement between Executive and the Company signed\nconcurrently herewith.\n10.6 Waiver. No waiver by the Corporation of any breach of this Agreement shall be a waiver of any preceding\nor succeeding breach. No waiver by the Corporation of any right under this Agreement shall be construed as a\nwaiver of any other right. The Corporation shall not be required to give notice to enforce strict adherence to all\nterms of this Agreement.\n10.7 Advice of Counsel. Executive acknowledges that, in executing this Agreement, Executive has had the\nopportunity to seek the advice of independent legal counsel, and Executive has read and understood all of the\nterms and provisions of this Agreement. This Agreement shall not be construed against any party by reason of the\ndrafting or preparation hereof.\n10.8 Modification. This Agreement may not be changed, modified, released, discharged, abandoned or\notherwise amended, in whole or in part, except by an instrument in writing, signed by Executive and the\nCorporation. Executive agrees that any subsequent change or changes in Executive’s duties, salary, or\ncompensation shall not affect the validity or scope of this Agreement.\n10.9 Entire Agreement. The obligations of this Agreement shall apply to any time during which Executive\npreviously provided service, or will in the future provide service, to the Corporation as a consultant or agent if no\nother agreement governs nondisclosure and assignment of inventions during such period. This Agreement is the\nfinal, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes\nand merges all prior discussions between us. No modification of or amendment to this Agreement, nor any waiver\nof any rights under this Agreement, will be effective unless in writing and signed by the party to be charged. The\nheadings in this Agreement are used for convenience only and are not to be considered a part of this Agreement or\nbe used to interpret the meaning of any part of this Agreement.\n10.10 Counterparts. This Agreement may be signed in two counterparts, each shall be deemed an original\nand both of which shall together constitute one agreement. The parties hereto agree to accept a facsimile\ntransmission copy of their respective actual signatures as evidence of their actual signatures to this Agreement and\nany modification or amendment of this Agreement; provided, however, that each party who produces a facsimile\nsignature agrees, by the express terms hereof, to place, promptly after transmission of his or her signature by fax, a\ntrue and correct original copy of his or her signature in overnight mail to the address of the other party.\n[The remainder of this page has been intentionally left blank. Signature page(s) to follow]\nA-5\nI HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE COMPLETELY FILLED\nOUT ATTACHMENT B TO THIS AGREEMENT. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO ME\nTO INDUCE ME TO SIGN THIS AGREEMENT. I SIGN THIS AGREEMENT VOLUNTARILY AND FREELY.\nDated:\nBy:\nPrinted Name:\nWing Lok Jonathan SO\nACCEPTED AND AGREED TO:\nCOSMOS GROUP HOLDINGS, INC.\nBy:\nMiky Y.C. Wan\nIts:\nChief Executive Officer, Interim Chief Financial\nOfficer and President\nSignature Page to Proprietary Information, Inventions and Non-Competition Agreement\nA-6
+e5c3c29929ea5583d071e0c1d0e3b013.pdf	jurisdiction	Exhibit 10.13\nNON-SOLICITATION AND CONFIDENTIALITY AGREEMENT\n1. Parties. This Non-Solicitation and Confidentiality Agreement (the “Agreement”) is entered into by Pulaski Financial Corp. , its present and future subsidiaries, affiliates, and assigns (collectively hereinafter “Employer”) and\n________________\n(hereinafter “Employee”). In consideration of the granting of stock option awards to Employee for shares of stock in Pulaski Financial by the Board of Directors of Pulaski Financial, pursuant to the recommendation of\nthe Compensation Committee at its meeting on November 30, 2007, and Employee’s employment or continued employment by the Employer, access to some of Employer’s confidential information, and other good and sufficient\nconsideration, receipt of which is hereby acknowledged, the Employee agrees to the terms of this Agreement.\n2. Employee Acknowledgment. Employee acknowledges that Employer’s relationships with its customers, employees and other business associations are among Employer’s most important assets, and that developing, maintaining and\ncontinuing these relationships is one of Employer’s highest priorities. Employee further understands that he or she will be relied upon to develop and maintain the goodwill of these relationships on behalf of the Employer throughout the\ncourse of the employment relationship. Employee further acknowledges and agrees that the restrictions in this Agreement are reasonable to protect Employer’s rights under this Agreement and to safeguard the Company’s confidential\ninformation and aforementioned relationships.\n3. Non-Solicitation of Referral Sources and Customers of Employer. During Employee’s employment with Employer and, if Employee terminates his/her employment with Employer for any reason, or if Employer terminates\nEmployee’s employment for cause, for a period of one (1) year after the date of such termination (the “Termination Date”), Employee agrees that he or she will not, directly or indirectly, by any means or device whatsoever, for any\nperson, business or entity in competition with or providing the same services as Employer, call upon, solicit, divert, or accept business from any customers of Employer who were customers of Employer at any time during the one year\nperiod preceding Employee’s Termination Date, and with which Employee had contact during his or her employment with Employer or about which Employee became aware during Employee’s employment with Employer.\n4. Non-Solicitation of Employees. During Employee’s employment with Employer and, if Employee terminates his/her employment with Employer for any reason, or if Employer terminates Employee’s employment for cause, for a\nperiod of one (1) year after the Termination Date, Employee will not, directly or indirectly, either for Employee or for any other person, firm, employer or corporation: (1) call upon, solicit, divert, or hire, or attempt to solicit, divert, or\nhire any of the employees of Employer or (2) call upon, solicit, divert, or hire or attempt to solicit, divert, or hire any former employee of the Employer during the first six months after such former employee’s termination of employment\nwith Employer.\n5. Return of Employer’s Records. Employee agrees that upon termination of Employee’s employment, for any reason whatsoever, Employee will immediately deliver to the Employer in good condition all records kept by Employee\ncontaining the names, addresses or any other information with regard to referral sources or customers of the Employer, or\nconcerning any operational, financial or other documents of Employer given to Employee during Employee’s employment with Employer. Employee also agrees that he or she will not retain any copies (whether hard copy or electronic) of\nthe foregoing information.\n6. Non-Disclosure by Employee. Employee acknowledges and agrees that any confidential information obtained by Employee while employed by the Employer, including but not limited to customer lists and customer contacts, referral\nlists and referral contacts, financial, promotional, marketing, training or operational information, and employment data is highly confidential, and is important to the Employer and to the effective operation of the Employer’s business.\nEmployee therefore agrees that while employed by the Employer, and at any time thereafter, Employee will make no disclosure of any kind, directly or indirectly, concerning any such confidential matters relating to the Employer or any\nof its activities.\n7. Change in Control. In the event that there is a change in control, the non-solicitation agreements in paragraphs 3 and 4 shall not be enforceable. For purposes of this Agreement, a “change in control” means any of the following\nevents:\na.\nMerger: The Employer merges into or consolidates with another entity, or merges another corporation into the Employer, and as a result, less than a majority of the combined voting power of the resulting\ncorporation immediately after the merger or consolidation is held by persons who were stockholders of the Employer immediately before the merger or consolidation;\nb.\nAcquisition of Significant Share Ownership: There is filed, or is required to be filed, a report on Schedule 13D or another form or schedule (other than Schedule 13G) required under Sections 13(d) or 14(d) of the\nSecurities Exchange Act of 1934, as amended, if the schedule discloses that the filing person or persons acting in concert has or have become the beneficial owner of 25% or more of a class of the Employer’s\nvoting securities, but this clause (b) shall not apply to beneficial ownership of Employer voting shares held in a fiduciary capacity by an entity of which the Employer directly or indirectly beneficially owns 50%\nor more of its outstanding voting securities;\nc.\nSale of Assets: The Employer sells to a third party all or substantially all of its assets.\n8. Enforcement. In the event of a breach or threatened breach by the Employee of the provisions of this Agreement, the Employer shall be entitled to obtain a restraining order and/or an injunction restraining the Employee from\nviolating this Agreement in any way. The availability of relief under this paragraph is not cumulative or exclusive and Employer shall have available all other remedies available in law or equity to enforce the terms of this Agreement.\n9. Attorneys’ Fees. In the event that there is a dispute or litigation concerning any aspect of this Agreement, the prevailing party shall be entitled to all costs, including reasonable attorneys’ fees, incurred in such dispute or litigation.\n2\n10. Interpretation of Agreement. The parties covenant that this Agreement shall be construed and governed by Missouri law. No provision of this Agreement shall be construed against any party because that party, or their counsel,\ndrafted the provision.\n11. Severability. It is further the intention of the parties hereto that this Agreement restrict the activities of Employee only to the extent necessary for the protection of the legitimate business interests of Employer, and the parties\nspecifically covenant and agree that should any of the provisions set forth herein be held to be too broad for such purpose or invalid or unenforceable, said provisions will be so interpreted and applied in such a narrower sense as shall be\nnecessary to make the same valid and enforceable. Furthermore, should any term or provision of this Agreement be deemed invalid or unenforceable for any reason, the remaining terms and provisions of this Agreement shall remain in\nfull force and effect.\n12. Jurisdiction and Venue. Any cause of action or litigation of any kind related to the enforceability of this Agreement or any of its terms shall exclusively be initiated in the St. Louis County Circuit Court, State of Missouri.\n13. Employee-at-will. Employer and Employee acknowledge and understand that Employee is an employee at-will and, as a consequence, either party may terminate the employment relationship at any time for any reason or no reason\nat all.\n14. Entire Agreement. This writing contains the whole and entire agreement of the parties and supersedes all prior and contemporaneous agreements, representations and understandings regarding the issues covered herein.\nAGREED AND ACCEPTED:\nEMPLOYEE:\nSigned:\nPrinted Name:\nDated:\nPULASKI FINANCIAL CORP.\nBy:\nIts:\nDated:\n3	Exhibit 10.13\nNON-SOLIC ITATION AND CONFIDENTIALITY AGREEMENT\n1. Parties. This Non-Solicitation and Confidentiality Agreement (the "A greement") is entered into by Pulaski Financial Corp, its present and future subsidiaries, affiliates, and assigns (collectively hereinafter "Employer") and\n,,,,,,,,,,,,,,,, (heminafter "Emp10yee”). In consideration of the granting of stock option awards to Employee for shares of stock in Pulaski Financial by the Board of Directors of Pulaski Financial, pursuant to the recommendation of\nthe Compensation Committee at its meeting on November 30, 2007, and Employee's employment or continued employment by the Employer, access to some of Employer s confidential information, and other good and sufficient\nconsideration, receipt of which is hereby acknowledged, the Employee agrees to the terms of this Agreement\n2. Employee Acknowledment. Employee acknowledges that Employer s relationships with its customers, employees and other business associations are among Employer“ 5 most impormnt assets, and that developing, maintaining and\ncontinuing these relationships is one of Employer“ 5 highest priorities. Employee further understands that he or she will be relied upon to develop and maintain the goodwill of these relationships on behalf of the Employer throughout the\ncourse of the employment relationship. Employee further acknowledges and agrees that the restrictions in this Agreement are reasonable to protect Employer’ s rights under this Agreement and to safeguard the Company' 5 confidential\ninformation and aforementioned relationships.\n3. Non-Solicitation of Referral Sources and Customers of Employer. During Employee's employment with Employer and, if Employee terminates his/her employment with Employer for any reason, or if Employer terminates\nEmployee’s employment for cause, for a period of one (1) year after the date of such termination (the "Termination Date"), Employee agrees that he or she will not, directly or indirectly, by any means or device whatsoever, for any\nperson, business or entity in competition with or providing the same services as Employer, call upon, solicit, divert, or accept business from any customers of Employer who were customers of Employer at any time during the one year\nperiod preceding Employee’s Termination Date, and with which Employee had contact during his or her employment with Employer or about which Employee hecarne aware during Employee’s employment with Employer.\n4. Non-Solicitation of Emplpyees. During Employee' s employment with Employer and, if Employee terminates his/her employment with Employer for any reason, or if Employer terminates Employee’ 5 employment for cause, for a\nperiod of one (1) year after the Termination Date, Employee will not, directly or indirectly, either for Employee or for any other person, firm, employer or corporation: (1) call upon, solicit, divert, or hire, or attempt to solicit, divert, or\nhire any of the employees of Employer or (2) call upon, solicit, divert, or hire or attempt to solicit, divert, or hire any former employee of the Employer during the first six months after such former employee's termination of employment\nwith Employer.\n5. Return of Employer‘s Records Employee agrees that upon termination of Employee's employment, for any reason whatsoever, Employee will immediately deliver to the Employer in good condition all records kept by Employee\ncontaining the names, addresses or any other information with regard to referral sources or customers of the Employer, or\nconcerning any operational, financial or other documents of Employer given to Employee during Employee’s employment with Employer. Employee also agrees that he or she will not retain any copies (whether hard copy or electronic) of\nthe foregoing information\n6. Non-Disclosure by Employee. Employee acknowledges and agrees that any confidential information obtained by Employee while employed by the Employer, including but not limited to customer lists and customer conmcts, referral\nlists and referral conmcts, financial, promotional, marketing, training or operational information, and employment dam is highly confidential, and is important to the Employer and to the effective operation of the Employer“ 5 business.\nEmployee therefore agrees that while employed by the Employer, and at any time thereafter, Employee will make no disclosure of any kind, directly or indirectly, conceming any such confidential matters relating to the Employer or any\nof its activities.\n7. Change in Control. In the event that there is a change in control, the non-solicitation agreements in paragraphs 3 and 4 shall not be enforceable For purposes of this Agreement, a “change in control” means any of the following\nSEVERE:\na. Merger: The Employer merges into or consolidates with another entity, or merges another corporation into the Employer, and as a result, less than a majority of the combined voting power of the resulting\ncorporation immediately after the merger or consolidation is held by persons who were stockholders of the Employer immediately before the merger or consolidation;\nb. Acggiisition of Significant Share Ownership: There is filed, or is required to be filed, a report on Schedule 13D or another form or schedule (other than Schedule 13G) required under Sections 13(d) or 14(d) of the\nSecurities Exchange Act of 1934, as amended, if the schedule discloses that the filing person or persons acting in concert has or have become the beneficial owner of 25% or more of a class of the Employer“ 5\nvoting securities, but this clause (b) shall not apply to beneficial ownership of Employer voting shares held in a fiduciary capacity by an entity of which the Employer directly or indirectly beneficially owns 50%\nor more of its outstanding voting securities;\nc. Sale of Assets: The Employer sells to a third party all or subsmntially all of its assets.\n8. Enforcement. In the event of a breach or threatened breach by the Employee of the provisions of this Agreement, the Employer shall be entitled to obtain a restraining order and/or an injunction restraining the Employee from\nviolating this Agreement in any way. The availability of relief under this paragraph is not cumulative or exclusive and Employer shall have available all other remedies available in law or equity to enforce the terms of this Agreement.\n9. Attomeys’ Fees. In the event that there is a dispute orlitigation concerning any aspect of this Agreement, the prevailing party shall be entitled to all costs, including reasonable attomeys' fees, incurred in such dispute or litigation.\n10‘ Integpretation of AgIeement. The parties covenant that this Agreement shall be construed and governed by Missouri law. No provision of this Agreement shall be construed against any party because that party, or their counsel,\ndrafted the provision:\n11‘ Severabilig. It is further the intention of the parties hereto that this Agreement restrict the activities of Employee only to the extent necessary for the protection of the legitimate business interests of Employer, and the parties\nspecifically covenant and agree that should any of the provisions set forth herein be held to be too broad for such purpose orinvalid or unenforceable, said provisions will be so interpreted and applied in such a narrower sense as shall be\nnecessary to make the same valid and enforceable. Furthermore, should any term or provision of this Agreement be deemed invalid or unenforceable for any reason, the remaining terms and provisions of this Agreement shall remain in\nfull force and effect\n12‘ [urisdiction and Venue. Any cause of action orlitigation of any kind related to the enforceability of this Agreement or any of its terms shall exclusively be initiated in the St Louis County Circuit Court, State of Missouri\n13‘ Employee-at—will. Employer and Employee acknowledge and understand that Employee is an employee at-will and, as a consequence, either party may terminate the employment relationship at any time for any reason or no reason\nat all:\n14‘ Entire Aggeement. This writing contains the whole and entire agreement of the parties and supersedes all prior and contemporaneous agreements, representations and understandings regarding the issues covered herein\nAGREED AND ACCEPTED:\nEMPLOY EE: PULASKI FINANCIAL CORR\nSigned: BY:\nPrinted Name: Its:\nDated: Dated:	Exhibit 10.13\nNON-SOLICITATION AND CONFIDENTIALITY AGREEMENT\n1. Parties. This Non-Solicitation and Confidentiality Agreement (the Agreement") is entered into by Pulaski Financial Corp. its present and future subsidiaries, affiliates, and assigns (collectively hereinafter "Employer") and\n(hereinafter "Employee"). In consideration of the granting of stock option awards to Employee for shares of stock in Pulaski Financial by the Board of Directors of Pulaski Financial pursuant to the recommendation of\nthe Compensation Committee at its meeting on November 30, 2007, and Employee's employment or continued employment by the Employer, access to some of Employer's confidentia information, and other good and sufficient\nconsideration, receipt of which is hereby acknowledged, the Employee agrees to the terms of this Agreement.\n2. Employee Acknowledgmen Employee ac cknowledges that Employer's relationships with its customers, employees and other business associations are among Employer's most important assets, and that developing, maintaining\nand\ncontinuing these relationships is one of Employer's highest priorities. Employee further understands that he or she will be relied upon to develop and maintain the goodwill of these relationships on behalf of the Employer throughout the\ncourse of the employment relationship. Employee further acknowledges and agrees that the restrictions in this Agreement are reasonable to protect Employer s rights under this Agreement and to safeguard the Company's confidential\ninformation and aforementioned relationships.\n3.\nNon-Solicitation of Referral Sources and Customers of Employer. During Employee's employment with Employer and if Employee terminates his/her employment with Employer for any reason, or if Employer terminates\nEmployee's employment for cause, for a period of one (1) year after the date of such termination (the "Termination Date"), Employee agrees that he or she wil not, directly or indirectly, by any means or device whatsoever, for any\nperson, business or entity in competition with or providing the same services as Employer, call upon, solicit divert, or accept business from any customers of Employer who were customers of Employer at any time during the one year\nperiod preceding Employee's Termination Date, and with which Employee had contact during his or her employment with Employer or about which Employee became aware during Employee's employment with Employer.\n4. Non-Solicitation of Employees. During Employee's employment with Employer and if Employee terminates his/her employment with Employer for any reason or if Employer terminates Employee's employment for cause, for\na\nperiod of one (1) year after the Termination Date Employee will not, directly or indirectly, either for Employee or for any other person, firm, employer or corporation (1) call upon solicit, divert, or hire, or attempt to solicit, divert or\nhire any of the employees of Employer or (2) call upon, solicit, divert, or hire or attempt to solicit, divert, or hire any former employee of the Employer during the first six months after such former employee's termination of employment\nwith Employer.\n5. Return of Employer's Records Employee agrees that upon termination of Employee's employment, for any reason whatsoever, Employee wil immediately deliver to the Employer in good condition all records kept by Employee\ncontaining the names, addresses or any other information with regard to referral sources or customers of the Employer, or\nconcerning any operational, financial or other documents of Employer given to Employee during Employee's employment with Employer. Employee also agrees that he or she will not retain any copies (whether hard copy or electronic of\nthe foregoing information\n6.\nNon-Disclosure by Employee. Employee acknowledges and agrees that any confidential information obtained by Employee while employed by the Employer, including but not limited to customer lists and customer contacts referral\nlists and referral contacts, financial, promotional, marketing, training or operational information, and employment data is highly confidential, and is important to the Employer and to the effective operation of the Employer' business.\nEmployee therefore agrees that while employed by the Employer, and at any time thereafter, Employee will make no disclosure of any kind, directly or indirectly, conceming any such confidential matters relating to the Employer or any\nof its activities.\n7. Change in Control In the event that there is a change in control, the non-solicitation agreements in paragraphs 3 and 4 shall not be enforceable. For purposes of this Agreement, a "change in control" means any of the following\nevents:\na.\nMerger: The Employer merges into or consolidates with another entity, or merges another corporation into the Employer, and as a result less than a majority of the combined voting power of the resulting\ncorporation immediately after the merger or consolidation is held by persons who were stockholders of the Employer immediately before the merger or consolidation;\nb.\nAcquisition of Significant Share Ownership: There is filed or is required to be filed, a report on Schedule 13D or another form or schedule (other than Schedule 13G) required under Sections 13(d) or 14(d) of the\nSecurities Exchange Ac ct of 1934, as amended if the schedule discloses that the filing person or persons acting in concert has or have become the beneficial owner of 25% or more of a class of the Employer's\nvoting securities, but this clause (b) shall not apply to beneficial ownership of Employer voting shares held in a fiduciary capacity by an entity of which the Employer directly or indirectly beneficially owns 50%\nor more of its outstanding voting securities;\nc.\nSale of Assets: The Employer sells to a third party all or substantially all of its assets.\n8. Enforcement. In the event of a breach or threatened breach by the Employee of the provisions of this Agreement the Employer shall be entitled to obtain a restraining order and/or an injunction restraining the Employee from\nviolating this A greement in any way. The availability of relief under this paragraph is not cumulative or exclusive and Employer shall have available all other remedies available in law or equity to enforce the terms of this Agreement.\n9. Attorneys Fees, In the event that there is a dispute or litigation concerning any aspect of this A greement, the prevailing party shall be entitled to all costs, including reasonable attorneys' fees, incurred in such dispute or litigation.\n2\n10. Interpretation of Agreement. The parties covenant that this Agreement shall be construed and govemed by Missouri law. No provision of this Agreement shall be construed against any party because that party, or their counsel,\ndrafted the provision.\n11. Severability. It is further the intention of the parties hereto that this Agreement restrict the activities of Employee only to the extent necessary for the protection of the legitimate business interests of Employer, and the parties\nspecifically covenant and agree that should any of the provisions set forth herein be held to be too broad for such purpose or invalid or unenforceable, said provisions will be so interpreted and applied in such a narrower sense as shall be\nnecessary to make the same valid and enforceable Furthermore should any term or provision of this A greement be deemed invalid or unenforceable for any reason, the remaining terms and provisions of this Agreement shall remain in\nfull force and effect.\n12. Jurisdiction and Venue. Any cause of action or litigation of any kind related to the enforceability of this Agreement or any of its terms shall exclusively be initiated in the St. Louis County Circuit Court, State of Missouri.\n13. Employee-at-will. Employer and Employee acknowledge and understand that Employee is an employee at-will and, as a consequence, either party may terminate the employment relationship at any time for any reason or no reason\nat all.\n14. Entire Agreement. This writing contains the whole and entire agreement of the parties and supersedes all prior and contemporaneous agreements, representations and understandings regarding the issues covered herein\nAGREED AND ACCEPTED:\nEMPLOY EE:\nPULASK FINANCIAL CORP.\nSigned:\nBy:\nPrinted Name:\nIts:\nDated:\nDated:\n3	Exhibit 10.13\nNON-SOLICITATION AND CONFIDENTIALITY AGREEMENT\n1. Parties. This Non-Solicitation and Confidentiality Agreement (the “Agreement”) is entered into by Pulaski Financial Corp. , its present and future subsidiaries, affiliates, and assigns (collectively hereinafter “Employer”) and\n________________\n(hereinafter “Employee”). In consideration of the granting of stock option awards to Employee for shares of stock in Pulaski Financial by the Board of Directors of Pulaski Financial, pursuant to the recommendation of\nthe Compensation Committee at its meeting on November 30, 2007, and Employee’s employment or continued employment by the Employer, access to some of Employer’s confidential information, and other good and sufficient\nconsideration, receipt of which is hereby acknowledged, the Employee agrees to the terms of this Agreement.\n2. Employee Acknowledgment. Employee acknowledges that Employer’s relationships with its customers, employees and other business associations are among Employer’s most important assets, and that developing, maintaining and\ncontinuing these relationships is one of Employer’s highest priorities. Employee further understands that he or she will be relied upon to develop and maintain the goodwill of these relationships on behalf of the Employer throughout the\ncourse of the employment relationship. Employee further acknowledges and agrees that the restrictions in this Agreement are reasonable to protect Employer’s rights under this Agreement and to safeguard the Company’s confidential\ninformation and aforementioned relationships.\n3. Non-Solicitation of Referral Sources and Customers of Employer. During Employee’s employment with Employer and, if Employee terminates his/her employment with Employer for any reason, or if Employer terminates\nEmployee’s employment for cause, for a period of one (1) year after the date of such termination (the “Termination Date”), Employee agrees that he or she will not, directly or indirectly, by any means or device whatsoever, for any\nperson, business or entity in competition with or providing the same services as Employer, call upon, solicit, divert, or accept business from any customers of Employer who were customers of Employer at any time during the one year\nperiod preceding Employee’s Termination Date, and with which Employee had contact during his or her employment with Employer or about which Employee became aware during Employee’s employment with Employer.\n4. Non-Solicitation of Employees. During Employee’s employment with Employer and, if Employee terminates his/her employment with Employer for any reason, or if Employer terminates Employee’s employment for cause, for a\nperiod of one (1) year after the Termination Date, Employee will not, directly or indirectly, either for Employee or for any other person, firm, employer or corporation: (1) call upon, solicit, divert, or hire, or attempt to solicit, divert, or\nhire any of the employees of Employer or (2) call upon, solicit, divert, or hire or attempt to solicit, divert, or hire any former employee of the Employer during the first six months after such former employee’s termination of employment\nwith Employer.\n5. Return of Employer’s Records. Employee agrees that upon termination of Employee’s employment, for any reason whatsoever, Employee will immediately deliver to the Employer in good condition all records kept by Employee\ncontaining the names, addresses or any other information with regard to referral sources or customers of the Employer, or\nconcerning any operational, financial or other documents of Employer given to Employee during Employee’s employment with Employer. Employee also agrees that he or she will not retain any copies (whether hard copy or electronic) of\nthe foregoing information.\n6. Non-Disclosure by Employee. Employee acknowledges and agrees that any confidential information obtained by Employee while employed by the Employer, including but not limited to customer lists and customer contacts, referral\nlists and referral contacts, financial, promotional, marketing, training or operational information, and employment data is highly confidential, and is important to the Employer and to the effective operation of the Employer’s business.\nEmployee therefore agrees that while employed by the Employer, and at any time thereafter, Employee will make no disclosure of any kind, directly or indirectly, concerning any such confidential matters relating to the Employer or any\nof its activities.\n7. Change in Control. In the event that there is a change in control, the non-solicitation agreements in paragraphs 3 and 4 shall not be enforceable. For purposes of this Agreement, a “change in control” means any of the following\nevents:\na.\nMerger: The Employer merges into or consolidates with another entity, or merges another corporation into the Employer, and as a result, less than a majority of the combined voting power of the resulting\ncorporation immediately after the merger or consolidation is held by persons who were stockholders of the Employer immediately before the merger or consolidation;\nb.\nAcquisition of Significant Share Ownership: There is filed, or is required to be filed, a report on Schedule 13D or another form or schedule (other than Schedule 13G) required under Sections 13(d) or 14(d) of the\nSecurities Exchange Act of 1934, as amended, if the schedule discloses that the filing person or persons acting in concert has or have become the beneficial owner of 25% or more of a class of the Employer’s\nvoting securities, but this clause (b) shall not apply to beneficial ownership of Employer voting shares held in a fiduciary capacity by an entity of which the Employer directly or indirectly beneficially owns 50%\nor more of its outstanding voting securities;\nc.\nSale of Assets: The Employer sells to a third party all or substantially all of its assets.\n8. Enforcement. In the event of a breach or threatened breach by the Employee of the provisions of this Agreement, the Employer shall be entitled to obtain a restraining order and/or an injunction restraining the Employee from\nviolating this Agreement in any way. The availability of relief under this paragraph is not cumulative or exclusive and Employer shall have available all other remedies available in law or equity to enforce the terms of this Agreement.\n9. Attorneys’ Fees. In the event that there is a dispute or litigation concerning any aspect of this Agreement, the prevailing party shall be entitled to all costs, including reasonable attorneys’ fees, incurred in such dispute or litigation.\n2\n10. Interpretation of Agreement. The parties covenant that this Agreement shall be construed and governed by Missouri law. No provision of this Agreement shall be construed against any party because that party, or their counsel,\ndrafted the provision.\n11. Severability. It is further the intention of the parties hereto that this Agreement restrict the activities of Employee only to the extent necessary for the protection of the legitimate business interests of Employer, and the parties\nspecifically covenant and agree that should any of the provisions set forth herein be held to be too broad for such purpose or invalid or unenforceable, said provisions will be so interpreted and applied in such a narrower sense as shall be\nnecessary to make the same valid and enforceable. Furthermore, should any term or provision of this Agreement be deemed invalid or unenforceable for any reason, the remaining terms and provisions of this Agreement shall remain in\nfull force and effect.\n12. Jurisdiction and Venue. Any cause of action or litigation of any kind related to the enforceability of this Agreement or any of its terms shall exclusively be initiated in the St. Louis County Circuit Court, State of Missouri.\n13. Employee-at-will. Employer and Employee acknowledge and understand that Employee is an employee at-will and, as a consequence, either party may terminate the employment relationship at any time for any reason or no reason\nat all.\n14. Entire Agreement. This writing contains the whole and entire agreement of the parties and supersedes all prior and contemporaneous agreements, representations and understandings regarding the issues covered herein.\nAGREED AND ACCEPTED:\nEMPLOYEE:\nSigned:\nPrinted Name:\nDated:\nPULASKI FINANCIAL CORP.\nBy:\nIts:\nDated:\n3
+e714effe34666fe279593b6b7351ff06.pdf	effective_date jurisdiction party term	EX-99 .2 12 noncompagmt.htm NONCOMPETITION AND CONFIDENTIALITY AGREEMENT\nNONCOMPETITION AND CONFIDENTIALITY AGREEMENT\nThis NONCOMPETITION AND CONFIDENTIALITY AGREEMENT (the\n“Agreement”) is made and entered into as of March ____, 2008, by and among FEDELE V.\nSCUTTI (the “Selling Principal”), and GLOBAL CASINOS, INC., a Utah corporation and\nits wholly-owned subsidiary, DOC HOLLIDAY CASINO II, LLC, a Colorado limited\nliability company (collectively “Buyer”).\nRECITALS\nA.\nDoc Holliday Casino, LLC, a Colorado limited liability company and Selling\nPrincipal (collectively “Seller”) and Buyer are parties to that certain Asset Purchase and Sale\nAgreement dated as of June 14, 2007, as amended by Amendment No. 1 dated September 28,\n2007, by Amendment No. 2 dated November 30, 2007, by Amendment No. 3 dated\nDecember 5, 2007, by Amendment No. 4 dated January 30, 2008 and by Amendment No. 5\ndated March 3, 2008 (“Purchase Agreement”), relating to the purchase by Buyer of\nsubstantially all of the tangible and intangible property and assets (“Assets”) of the Business\nowned by Seller known as Doc Holliday Casino, 129-131 Main Street, Central City, CO (the\n“Business”). Capitalized terms used but not otherwise defined in this Agreement will have\nthe meanings ascribed to such terms in the Purchase Agreement.\nB.\nPursuant to the terms and conditions of the Purchase Agreement, the Selling\nPrincipal is executing this Agreement, in part, because such individual has developed and\nobtained substantial and detailed experience and extensive and valuable knowledge and\nConfidential Information concerning the Seller, the Assets, and the Business.\nC.\nAs a condition to the consummation of the Contemplated Transactions, and to\nenable Buyer to secure more fully the benefits of its acquisition of the Assets and the\nBusiness, as set forth in the Purchase Agreement, and to induce the Buyer to consummate the\nContemplated Transactions, Selling Principals are entering into this Agreement.\nAGREEMENT\nNOW, THEREFORE, in consideration of the premises, the payment of the Purchase\nPrice set forth in the Purchase Agreement, and other good and valuable consideration, the\nreceipt and sufficiency of which are hereby acknowledged, and intending to be legally bound,\nSelling Principals and Buyer hereby agree as follows:\n1.\nCovenant Not to Compete. Selling Principal will not, without Buyer ’s prior\nwritten consent, directly or indirectly: (i) own, have an interest in (other than as a less than\n5.0% equity owner of any Person traded on any national, international, or regional stock\nexchange or in the over-the-counter market, which 5.0% threshold includes the as-converted\namount of any securities convertible into the equity securities of such Person), operate, join,\ncontrol, or participate in, or be connected with as an officer, employee, partner, consultant, or\notherwise with, any Person having, developing or operating any entity or other relationship\ncompetitive with the Business or the Assets; or (ii) in any manner compete with, or become\ninvolved in any competitor of, Buyer anywhere within the geographic boundaries of the State\nof Colorado (the “Restricted Area”) for a period of five (5) years from the latest to occur of\nthe date that such Selling Principal is no longer employed by, affiliated with, or an equity\n1\nowner (either individually or as an equity owner of Seller) of Buyer (the “Restricted Period”).\nIf a court of competent jurisdiction concludes that the foregoing covenants are unenforceable\naccording to their terms, either because of the duration of the Restricted Period or the scope\nof the Restricted Area, Selling Principals and Buyer agree that a court of competent\njurisdiction will reduce the duration of the Restricted Period or the scope of the Restricted\nArea so that the resulting duration and scope will be the maximum that such court will\nconclude is enforceable, which reduction will be performed as follows: (a) in the case of the\nRestricted Period, the duration will be reduced by one month at a time until it will be the\nmaximum enforceable duration; and, (b) in the case of Restricted Area, such area will be\nreduced by eliminating individual states one at a time therefrom starting with the state\nfurthest from the State of Colorado until such area will be the maximum enforceable\ngeographical coverage.\n2.\nConfidential Information.\n(a)\n“Confidential Information” means all information concerning the Assets and\nthe Business, including, without limitation: (i) any and all know-how, improvements, trade\nsecrets, and other information concerning the Assets and the Business, Seller ’s customer lists;\n(ii) any and all materials containing or based, in whole or in part, on any information\nincluded in the foregoing; (iii) any Confidential Information (as defined in the Purchase\nAgreement); and (iv) the terms and conditions of the Purchase Agreement, any Ancillary\nDocument, and any other schedule, exhibit, certificate, Contract, document, or instrument\nexecuted and delivered pursuant thereto. “Confidential Information” does not include\ninformation that is or becomes generally known or available to the public (other than by\nreason of the breach of this Agreement or the Purchase Agreement or any other obligation of\nconfidentiality).\n(b) Selling Principal (i) will not disclose Confidential Information, except as\ncompelled by law pursuant to a final Order of a court of competent jurisdiction not subject to\nappeal, (ii) will not use any of the Confidential Information for any reason or purpose other\nthan to consummate the Contemplated Transactions or to carry out the business plan of Buyer\nafter the Closing, and (iii) will take all reasonably necessary and appropriate efforts to\nsafeguard the Confidential Information from disclosure to anyone other than Buyer and its\nrespective agents.\n3.\nNon-Solicitation. As further inducement for Buyer to enter into the Purchase\nAgreement, Selling Principal will not, during the Restricted Period: (a) hire any employee or\nindependent contractor of Buyer; (b) induce or attempt to induce, directly or indirectly, any\nemployee of Buyer to leave his or her employment with Buyer; (c) interfere, in any way, with\nthe relationship between the Buyer and its employees; (d) induce or attempt to induce any\ncustomer, supplier, licensee, or business relation of Buyer to cease doing business with\nBuyer, or in any way interfere with the relationship between any customer, supplier, licensee,\nor business relation of Buyer; or (e) solicit, directly or indirectly, either for himself or any\nother Person, the business of any Person known to the Selling Principal or reasonably\nbelieved by the Selling Principal to be a customer of Buyer, whether or not the Selling\nPrincipal had personal contact with such Person.\n4.\nEnforcement. Selling Principal agrees and acknowledges that a violation of\nthis Agreement will constitute immediate, irreparable harm to Buyer for which monetary\ndamages are insufficient. The parties hereto therefore agree that, in addition to any other\n2\nrights or remedies, Buyer is entitled to seek and obtain (a) a decree or Order of specific\nperformance to enforce the observance and performance of the agreements, covenants, or\nobligations in this Agreement, and (b) an injunction restraining any breach or threatened\nbreach of this Agreement. Selling Principal further agrees that Buyer will not be required to\nobtain, and Selling Principal irrevocably waives any right that he may have to require Buyer\nto, furnish or post any bond or similar instrument in connection with or as a condition to\nobtaining any remedy referred to in this Section 4.\n5.\nAcknowledgments. Selling Principal agrees and acknowledges that the rights\nand consideration provided for in this Agreement and the Purchase Agreement are adequate\nconsideration for the agreements herein made and that such covenants, and the territorial,\ntime, and other limitations with respect thereto, are reasonable and properly required for the\nadequate protection of Buyer ’s acquisition of the Business and the Assets, and Selling\nPrincipal agrees and acknowledges that such limitations are reasonable with respect to the\nbusiness activities, and do not impose undue hardship on Selling Principal.\n6.\nAssignment. This Agreement may not be assigned by Selling Principal.\nBuyer may assign this Agreement, in whole or in part, to any Person deriving title from\nBuyer to the Business or the Assets: provided, however, that if Buyer will sell, transfer, or\nassign less than all of its interest in the Business or the Assets, the obligations of Selling\nPrincipal under this Agreement will continue both as to Buyer and as to any successor(s) in\ninterest of the assigned portion of the Business or the Assets.\n7.\nSeverability. If any provision of this Agreement is held by a court of\ncompetent jurisdiction to be unenforceable, or enforceable only if modified, such holding will\nnot effect the validity of the remainder of this Agreement, the balance of which will continue\nto be binding upon the parties hereto with any such modification (if any) to become a part\nhereof and treated as though contained in this Agreement. The parties hereto further agree\nthat any such court is expressly authorized to modify any unenforceable provision of this\nAgreement in lieu of severing the unenforceable provision from this Agreement in its\nentirety, whether by rewriting the offending provision, adding additional language to this\nAgreement, deleting language, or by making such other modification that the court deems\nwarranted to carry out the intent of the parties hereto as indicated by the terms of this\nAgreement and the Purchase Agreement. The parties hereto expressly agree that this\nAgreement as so modified by the court will be binding upon and enforceable against each of\nthem.\n8.\nCounterparts. This Agreement and any amendment hereof may be executed\nin any number of counterparts, each of which will be deemed an original and all of which,\ntogether, will constitute one and the same instrument. In producing this Agreement, it will\nnot be necessary to produce or account for more than one counterpart signed by the party\nagainst whom enforcement is sought.\n9.\nAmendments and Waivers; Construction. No amendment, modification,\ntermination, or waiver of any provision of this Agreement will be effective unless in writing\nand signed by all of the parties hereto, and then only to the extent specifically set forth\ntherein. This Agreement will not be construed more strictly against one party by virtue of the\nfact that this Agreement may have been prepared by counsel for one of the parties, it being\n3\nrecognized that each of the parties hereto have contributed substantially and materially to the\npreparation of this Agreement.\n10. No Waivers by Implication. No course of dealing on the part of any party, or\ntheir respective officers, directors, employees, consultants, or agents, nor any failure or delay\nby any party with respect to exercising any of their respective rights, powers, or privileges\nunder this Agreement or law will operate as a waiver thereof. No waiver by any party of any\ncondition or the breach of any term, covenant, or agreement contained in this Agreement,\nwhether by conduct or otherwise, in any one or more instances will be deemed a further or\ncontinuing waiver of any term, covenant, or agreement of this Agreement.\n11. Entire Agreement. Except as may be set forth in the Purchase Agreement,\nthis Agreement embodies the entire agreement and understanding between the parties hereto\nand supersedes all prior agreements and understandings between the parties hereto relating to\nthe subject matter hereof. If there is a conflict between the terms, conditions, representations,\nwarranties, and covenants contained in this Agreement and any other document, then the\nprovisions in this Agreement will control; provided, however, that if any terms or conditions\nof this Agreement conflict with terms or conditions of the Purchase Agreement, the terms and\nconditions of the Purchase Agreement will control.\n12. Rights Cumulative. Except as set forth in this Agreement, all rights, powers,\nand remedies under this Agreement are cumulative and not alternative and are in addition to\nall statutes or rules of law.\n13. Incorporation of Recitals. The Recitals set forth above are hereby\nincorporated into and made a part of this Agreement.\n14. Governing Law. This Agreement, and the rights and obligations of the\nparties hereunder, will be governed by and construed in accordance with the\nlaws of the State of Colorado, without regard to its conflict of laws principles.\nIN WITNESS WHEREOF, the parties hereto have executed this Noncompetition and\nConfidentiality Agreement as of the date first above written.\nSELLING PRINCIPAL:\n/s/ Fedele V. Scutti\nFedele V. Scutti, an individual\nBUYER:\nGLOBAL CASINOS, INC., and its wholly-\nowned subsidiary DOC HOLLIDAY CASINO\nII, LLC (by Global Casinos, Inc., its Manager)\nBy: /s/ Clifford L. Neuman\nClifford L. Neuman, its President\n4	EX-99.2 12 noncompagmt.htm NONCOMPETITION AND CONFIDENTIALITY AGREEMENT\nNONCOMPETITION AND CONFIDENTIALITY AGREEMENT\nThis NONCOMPETITION AND CONFIDENTIALITY AGREEMENT (the\n“Agreement”) is made and entered into as of March ____, 2008, by and among FEDELE V.\nSCUTTI (the “Selling Principal”), and GLOBAL CASINOS, INC., a Utah corporation and\nits wholly-owned subsidiary, DOC HOLLIDAY CASINO II, LLC, a Colorado limited\nliability company (collectively “Buyer”).\nRECITALS\nA. Doc Holliday Casino, LL.C, a Colorado limited liability company and Selling\nPrincipal (collectively “Seller”) and Buyer are parties to that certain Asset Purchase and Sale\nAgreement dated as of June 14, 2007, as amended by Amendment No. 1 dated September 28,\n2007, by Amendment No. 2 dated November 30, 2007, by Amendment No. 3 dated\nDecember 5, 2007, by Amendment No. 4 dated January 30, 2008 and by Amendment No. 5\ndated March 3, 2008 (“Purchase Agreement”), relating to the purchase by Buyer of\nsubstantially all of the tangible and intangible property and assets (“Assets”) of the Business\nowned by Seller known as Doc Holliday Casino, 129-131 Main Street, Central City, CO (the\n“Business”). Capitalized terms used but not otherwise defined in this Agreement will have\nthe meanings ascribed to such terms in the Purchase Agreement.\n \nB. Pursuant to the terms and conditions of the Purchase Agreement, the Selling\nPrincipal is executing this Agreement, in part, because such individual has developed and\nobtained substantial and detailed experience and extensive and valuable knowledge and\nConfidential Information concerning the Seller, the Assets, and the Business.\nC. As a condition to the consummation of the Contemplated Transactions, and to\nenable Buyer to secure more fully the benefits of its acquisition of the Assets and the\nBusiness, as set forth in the Purchase Agreement, and to induce the Buyer to consummate the\nContemplated Transactions, Selling Principals are entering into this Agreement.\nAGREEMENT\nNOW, THEREFORE, in consideration of the premises, the payment of the Purchase\nPrice set forth in the Purchase Agreement, and other good and valuable consideration, the\nreceipt and sufficiency of which are hereby acknowledged, and intending to be legally bound,\nSelling Principals and Buyer hereby agree as follows:\n1. Covenant Not to Compete. Selling Principal will not, without Buyer’s prior\nwritten consent, directly or indirectly: (i) own, have an interest in (other than as a less than\n5.0% equity owner of any Person traded on any national, international, or regional stock\nexchange or in the over-the-counter market, which 5.0% threshold includes the as-converted\namount of any securities convertible into the equity securities of such Person), operate, join,\ncontrol, or participate in, or be connected with as an officer, employee, partner, consultant, or\notherwise with, any Person having, developing or operating any entity or other relationship\ncompetitive with the Business or the Assets; or (ii) in any manner compete with, or become\ninvolved in any competitor of, Buyer anywhere within the geographic boundaries of the State\nof Colorado (the “Restricted Area”) for a period of five (5) years from the latest to occur of\nthe date that such Selling Principal is no longer employed by, affiliated with, or an equity\nowner (either individually or as an equity owner of Seller) of Buyer (the “Restricted Period”).\nIf a court of competent jurisdiction concludes that the foregoing covenants are unenforceable\naccording to their terms, either because of the duration of the Restricted Period or the scope\nof the Restricted Area, Selling Principals and Buyer agree that a court of competent\njurisdiction will reduce the duration of the Restricted Period or the scope of the Restricted\nArea so that the resulting duration and scope will be the maximum that such court will\nconclude is enforceable, which reduction will be performed as follows: (a) in the case of the\nRestricted Period, the duration will be reduced by one month at a time until it will be the\nmaximum enforceable duration; and, (b) in the case of Restricted Area, such area will be\nreduced by eliminating individual states one at a time therefrom starting with the state\nfurthest from the State of Colorado until such area will be the maximum enforceable\ngeographical coverage.\n2. Confidential Information.\n(a) “Confidential Information” means all information concerning the Assets and\nthe Business, including, without limitation: (i) any and all know-how, improvements, trade\nsecrets, and other information concerning the Assets and the Business, Seller’s customer lists;\n(ii) any and all materials containing or based, in whole or in part, on any information\nincluded in the foregoing; (iii) any Confidential Information (as defined in the Purchase\nAgreement); and (iv) the terms and conditions of the Purchase Agreement, any Ancillary\nDocument, and any other schedule, exhibit, certificate, Contract, document, or instrument\nexecuted and delivered pursuant thereto. “Confidential Information” does not include\ninformation that is or becomes generally known or available to the public (other than by\nreason of the breach of this Agreement or the Purchase Agreement or any other obligation of\nconfidentiality).\n(b) Selling Principal (i) will not disclose Confidential Information, except as\ncompelled by law pursuant to a final Order of a court of competent jurisdiction not subject to\nappeal, (ii) will not use any of the Confidential Information for any reason or purpose other\nthan to consummate the Contemplated Transactions or to carry out the business plan of Buyer\nafter the Closing, and (iii) will take all reasonably necessary and appropriate efforts to\nsafeguard the Confidential Information from disclosure to anyone other than Buyer and its\nrespective agents.\n3. Non-Solicitation. As further inducement for Buyer to enter into the Purchase\nAgreement, Selling Principal will not, during the Restricted Period: (a) hire any employee or\nindependent contractor of Buyer; (b) induce or attempt to induce, directly or indirectly, any\nemployee of Buyer to leave his or her employment with Buyer; (c) interfere, in any way, with\nthe relationship between the Buyer and its employees; (d) induce or attempt to induce any\ncustomer, supplier, licensee, or business relation of Buyer to cease doing business with\nBuyer, or in any way interfere with the relationship between any customer, supplier, licensee,\nor business relation of Buyer; or (e) solicit, directly or indirectly, either for himself or any\nother Person, the business of any Person known to the Selling Principal or reasonably\nbelieved by the Selling Principal to be a customer of Buyer, whether or not the Selling\nPrincipal had personal contact with such Person.\n4. Enforcement. Selling Principal agrees and acknowledges that a violation of\nthis Agreement will constitute immediate, irreparable harm to Buyer for which monetary\ndamages are insufficient. The parties hereto therefore agree that, in addition to any other\nrights or remedies, Buyer is entitled to seek and obtain (a) a decree or Order of specific\nperformance to enforce the observance and performance of the agreements, covenants, or\nobligations in this Agreement, and (b) an injunction restraining any breach or threatened\nbreach of this Agreement. Selling Principal further agrees that Buyer will not be required to\nobtain, and Selling Principal irrevocably waives any right that he may have to require Buyer\nto, furnish or post any bond or similar instrument in connection with or as a condition to\nobtaining any remedy referred to in this Section 4.\n5. Acknowledgments. Selling Principal agrees and acknowledges that the rights\nand consideration provided for in this Agreement and the Purchase Agreement are adequate\nconsideration for the agreements herein made and that such covenants, and the territorial,\ntime, and other limitations with respect thereto, are reasonable and properly required for the\nadequate protection of Buyer’s acquisition of the Business and the Assets, and Selling\nPrincipal agrees and acknowledges that such limitations are reasonable with respect to the\nbusiness activities, and do not impose undue hardship on Selling Principal.\n6. Assignment. This Agreement may not be assigned by Selling Principal.\nBuyer may assign this Agreement, in whole or in part, to any Person deriving title from\nBuyer to the Business or the Assets: provided, however, that if Buyer will sell, transfer, or\nassign less than all of its interest in the Business or the Assets, the obligations of Selling\nPrincipal under this Agreement will continue both as to Buyer and as to any successor(s) in\ninterest of the assigned portion of the Business or the Assets.\n7. Severability. If any provision of this Agreement is held by a court of\ncompetent jurisdiction to be unenforceable, or enforceable only if modified, such holding will\nnot effect the validity of the remainder of this Agreement, the balance of which will continue\nto be binding upon the parties hereto with any such modification (if any) to become a part\nhereof and treated as though contained in this Agreement. The parties hereto further agree\nthat any such court is expressly authorized to modify any unenforceable provision of this\nAgreement in lieu of severing the unenforceable provision from this Agreement in its\nentirety, whether by rewriting the offending provision, adding additional language to this\nAgreement, deleting language, or by making such other modification that the court deems\nwarranted to carry out the intent of the parties hereto as indicated by the terms of this\nAgreement and the Purchase Agreement. The parties hereto expressly agree that this\nAgreement as so modified by the court will be binding upon and enforceable against each of\nthem.\n8. Counterparts. This Agreement and any amendment hereof may be executed\nin any number of counterparts, each of which will be deemed an original and all of which,\ntogether, will constitute one and the same instrument. In producing this Agreement, it will\nnot be necessary to produce or account for more than one counterpart signed by the party\nagainst whom enforcement is sought.\n9. Amendments and Waivers; Construction. No amendment, modification,\ntermination, or waiver of any provision of this Agreement will be effective unless in writing\nand signed by all of the parties hereto, and then only to the extent specifically set forth\ntherein. This Agreement will not be construed more strictly against one party by virtue of the\nfact that this Agreement may have been prepared by counsel for one of the parties, it being\nrecognized that each of the parties hereto have contributed substantially and materially to the\npreparation of this Agreement.\n10. No Waivers by Implication. No course of dealing on the part of any party, or\ntheir respective officers, directors, employees, consultants, or agents, nor any failure or delay\nby any party with respect to exercising any of their respective rights, powers, or privileges\nunder this Agreement or law will operate as a waiver thereof. No waiver by any party of any\ncondition or the breach of any term, covenant, or agreement contained in this Agreement,\nwhether by conduct or otherwise, in any one or more instances will be deemed a further or\ncontinuing waiver of any term, covenant, or agreement of this Agreement.\n11. Entire Agreement. Except as may be set forth in the Purchase Agreement,\nthis Agreement embodies the entire agreement and understanding between the parties hereto\nand supersedes all prior agreements and understandings between the parties hereto relating to\nthe subject matter hereof. If there is a conflict between the terms, conditions, representations,\nwarranties, and covenants contained in this Agreement and any other document, then the\nprovisions in this Agreement will control; provided, however, that if any terms or conditions\nof this Agreement conflict with terms or conditions of the Purchase Agreement, the terms and\nconditions of the Purchase Agreement will control.\n12. Rights Cumulative. Except as set forth in this Agreement, all rights, powers,\nand remedies under this Agreement are cumulative and not alternative and are in addition to\nall statutes or rules of law.\n13. Incorporation of Recitals. The Recitals set forth above are hereby\nincorporated into and made a part of this Agreement.\n14. Governing Law. This Agreement, and the rights and obligations of the\nparties hereunder, will be governed by and construed in accordance with the\nlaws of the State of Colorado, without regard to its conflict of laws principles.\nIN WITNESS WHEREOF, the parties hereto have executed this Noncompetition and\nConfidentiality Agreement as of the date first above written.\nSELLING PRINCIPAL.:\n/s/ Fedele V_Scutti\nFedele V. Scutti, an individual\nBUYER:\nGLOBAL CASINQOS, INC., and its wholly-\nowned subsidiary DOC HOLLIDAY CASINO\nII, LLC (by Global Casinos, Inc., its Manager)\nBy: /s/ Clifford L. Neuman\nClifford L. Neuman, its President	EX-99.2 12 noncompagmt.htm NONCOMPETITION AND CONFIDENTIALITY AGREEMENT\nNONCOMPETITION AND CONFIDENTIALITY AGREEMENT\nThis NONCOMPETITION AND CONFIDENTIALITY AGREEMENT (the\n"Agreement") is made and entered into as of March 2008, by and among FEDELE V.\nSCUTTI (the "Selling ing Principal") and GLOBAL CASINOS, INC., a Utah corporation and\nits wholly-owned subsidiary, DOC HOLLIDAY CASINO II, LLC, a Colorado limited\nliability company (collectively "Buyer").\nRECITALS\nA.\nDoc Holliday Casino, LLC, a Colorado limited liability company and Selling\nPrincipal (collectively "Seller") and Buyer are parties to that certain Asset Purchase and Sale\nAgreement dated as of June 14, 2007, as amended by Amendment No. 1 dated September 28,\n2007, by Amendment No. 2 dated November 30, 2007, by Amendment No. 3 dated\nDecember 5, 2007, by Amendment No. 4 dated January 30, 2008 and by Amendment No. 5\ndated March 3, 2008 ("Purchase Agreement"), relating to the purchase by Buyer of\nsubstantially all of the tangible and intangible property and assets ("Assets") of the Business\nowned by Seller known as Doc Holliday Casino, 129-131 Main Street Central City, CO (the\n"Business"). Capitalized terms used but not otherwise defined in this Agreement will have\nthe meanings ascribed to such terms in the Purchase Agreement.\nB.\nPursuant to the terms and conditions of the Purchase Agreement, the Selling\nPrincipal is executing this Agreement, in part, because such individua has developed and\nobtained substantial and detailed experience and extensive and valuable knowledge and\nConfidential Information concerning the Seller, the Assets, and the Business.\nC.\nAs a condition to the consummation of the Contemplated Transactions, and to\nenable Buyer to secure more fully the benefits of its acquisition of the Assets and the\nBusiness, as set forth in the Purchase Agreement, and to induce the Buyer to consummate the\nContemplated Transactions, Selling Principals are entering into this Agreement.\nAGREEMENT\nNOW, THEREFORE, in consideration of the premises, the payment of the Purchase\nPrice set forth in the Purchase Agreement, and other good and valuable consideration, the\nreceipt and sufficiency of which are hereby acknowledged, and intending to be legally bound,\nSelling Principals and Buyer hereby agree as follows:\n1.\nCovenant Not to Compete. Selling Principal will not, without Buyer's prior\nwritten consent, directly or indirectly: (i) own, have an interest in (other than as a less than\n5.0% equity owner of any Person traded on any national, international, or regional stock\nexchange or in the over-the-counter market, which 5.0% threshold includes the as-converted\namount of any securities convertible into the equity securities of such Person), operate, join,\ncontrol, or participate in, or be connected with as an officer, employee, partner, consultant, or\notherwise with, any Person having, developing or operating any entity or other relationship\ncompetitive with the Business or the Assets; or (ii) in any manner compete with, or become\ninvolved in any competitor of, Buyer anywhere within the geographic boundaries of the State\nof Colorado (the "Restricted Area") for a period of five (5) years from the latest to occur of\nthe date that such Selling Principal is no longer employed by, affiliated with, or an equity\n1\nowner (either individually or as an equity owner of Seller) of Buyer (the "Restricted Period").\nIf a court of competent jurisdiction concludes that the foregoing covenants are unenforceable\naccording to their terms, either because of the duration of the Restricted Period or the scope\nof the Restricted Area, Selling Principals and Buyer agree that a court of competent\njurisdiction will reduce the duration of the Restricted Period or the scope of the Restricted\nArea so that the resulting duration and scope will be the maximum that such court will\nconclude is enforceable, which reduction will be performed as follows: (a) in the case of the\nRestricted Period, the duration will be reduced by one month at a time until it will be the\nmaximum enforceable duration; and, (b) in the case of Restricted Area, such area will be\nreduced by eliminating individual states one at a time therefrom starting with the state\nfurthest from the State of Colorado until such area will be the maximum enforceable\ngeographical coverage.\n2.\nConfidential Information.\n(a)\n"Confidential Information" means all information concerning the Assets and\nthe Business, including, without limitation: (i) any and all know-how, improvements, trade\nsecrets, and other information concerning the Assets and the Business, Seller's customer lists;\n(ii) any and all materials containing or based, in whole or in part, on any information\nincluded in the foregoing; (iii) any Confidential Information (as defined in the Purchase\nAgreement); and (iv) the terms and conditions of the Purchase Agreement, any Ancillary\nDocument, and any other schedule, exhibit, certificate, Contract, document, or instrument\nexecuted and delivered pursuant thereto. "Confidential Information" does not include\ninformation that is or becomes generally known or available to the public (other than by\nreason of the breach of this Agreement or the Purchase Agreement or any other obligation of\nconfidentiality).\n(b) Selling Principal (i) will not disclose Confidential Information, except as\ncompelled by law pursuant to a final Order of a court of competent jurisdiction not subject to\nappeal, (ii) will not use any of the Confidential Information for any reason or purpose other\nthan to consummate the Contemplated Transactions or to carry out the business plan of Buyer\nafter the Closing, and (iii) will take all reasonably necessary and appropriate efforts to\nsafeguard the Confidential Information from disclosure to anyone other than Buyer and its\nrespective agents.\n3.\nNon-Solicitation. As further inducement for Buyer to enter into the Purchase\nAgreement, Selling Principal will not, during the Restricted Period: (a) hire any employee or\nindependent contractor of Buyer; (b) induce or attempt to induce, directly or indirectly, any\nemployee of Buyer to leave his or her employment with Buyer; (c) interfere, in any way, with\nthe relationship between the Buyer and its employees; (d) induce or attempt to induce any\ncustomer, supplier, licensee, or business relation of Buyer to cease doing business with\nBuyer, or in any way interfere with the relationship between any customer, supplier, licensee,\nor business relation of Buyer; or (e) solicit, directly or indirectly, either for himself or any\nother Person, the business of any Person known to the Selling Principal or reasonably\nbelieved by the Selling Principal to be a customer of Buyer, whether or not the Selling\nPrincipal had personal contact with such Person.\n4.\nEnforcement. Selling Principal agrees and acknowledges that a violation of\nthis Agreement will constitute immediate, irreparable harm to Buyer for which monetary\ndamages are insufficient. The parties hereto therefore agree that, in addition to any other\n2\nrights or remedies, Buyer is entitled to seek and obtain (a) a decree or Order of specific\nperformance to enforce the observance and performance of the agreements, covenants, or\nobligations in this Agreement, and (b) an injunction restraining any breach or threatened\nbreach of this Agreement. Selling Principal further agrees that Buyer will not be required to\nobtain, and Selling Principal irrevocably waives any right that he may have to require Buyer\nto, furnish or post any bond or similar instrument in connection with or as a condition to\nobtaining any remedy referred to in this Section 4.\n5.\nAcknowledgments. Selling Principal agrees and acknowledges that the rights\nand consideration provided for in this Agreement and the Purchase Agreement are adequate\nconsideration for the agreements herein made and that such covenants, and the territorial,\ntime, and other limitations with respect thereto, are reasonable and properly required for the\nadequate protection of Buyer's acquisition of the Business and the Assets, and Selling\nPrincipal agrees and acknowledges that such limitations are reasonable with respect to the\nbusiness activities, and do not impose undue hardship on Selling Principal.\n6.\nAssignment. This Agreement may not be assigned by Selling Principal.\nBuyer may assign this Agreement, in whole or in part, to any Person deriving title from\nBuyer to the Business or the Assets: provided, however, that if Buyer will sell, transfer, or\nassign less than all of its interest in the Business or the Assets, the obligations of Selling\nPrincipal under this Agreement will continue both as to Buyer and as to any successor(s) in\ninterest of the assigned portion of the Business or the Assets.\n7.\nSeverability. If any provision of this Agreement is held by a court of\ncompetent jurisdiction to be unenforceable, or enforceable only if modified, such holding will\nnot effect the validity of the remainder of this Agreement, the balance of which will continue\nto be binding upon the parties hereto with any such modification (if any) to become a part\nhereof and treated as though contained in this Agreement. The parties hereto further agree\nthat any such court is expressly authorized to modify any unenforceable provision of this\nAgreement in lieu of severing the unenforceable provision from this Agreement in its\nentirety, whether by rewriting the offending provision, adding additional language to this\nAgreement, deleting language, or by making such other modification that the court deems\nwarranted to carry out the intent of the parties hereto as indicated by the terms of this\nAgreement and the Purchase Agreement. The parties hereto expressly agree that this\nAgreement as so modified by the court will be binding upon and enforceable against each of\nthem.\n8.\nCounterparts. This Agreement and any amendment hereof may be executed\nin any number of counterparts, each of which will be deemed an original and all of which,\ntogether, will constitute one and the same instrument. In producing this Agreement, it will\nnot be necessary to produce or account for more than one counterpart signed by the party\nagainst whom enforcement is sought.\n9.\nAmendments and Waivers; Construction. No amendment, modification,\ntermination, or waiver of any provision of this Agreement will be effective unless in writing\nand signed by all of the parties hereto, and then only to the extent specifically set forth\ntherein. This Agreement will not be construed more strictly against one party by virtue of the\nfact that this Agreement may have been prepared by counsel for one of the parties, it being\n3\nrecognized that each of the parties hereto have contributed substantially and materially to the\npreparation of this Agreement.\n10. No Waivers by Implication. No course of dealing on the part of any party, or\ntheir respective officers, directors, employees, consultants, or agents, nor any failure or delay\nby any party with respect to exercising any of their respective rights, powers, or privileges\nunder this Agreement or law will operate as a waiver thereof. No waiver by any party of any\ncondition or the breach of any term, covenant, or agreement contained in this Agreement,\nwhether by conduct or otherwise, in any one or more instances will be deemed a further or\ncontinuing waiver of any term, covenant, or agreement of this Agreement.\n11. Entire Agreement. Except as may be set forth in the Purchase Agreement,\nthis Agreement embodies the entire agreement and understanding between the parties hereto\nand supersedes all prior agreements and understandings between the parties hereto relating to\nthe subject matter hereof. If there is a conflict between the terms, conditions, representations,\nwarranties, and covenants contained in this Agreement and any other document, then the\nprovisions in this Agreement will control; provided however, that if any terms or conditions\nof this Agreement conflict with terms or conditions of the Purchase Agreement, the terms and\nconditions of the Purchase Agreement will control.\n12.\nRights Cumulative. Except as set forth in this Agreement, all rights, powers,\nand remedies under this Agreement are cumulative and not alternative and are in addition to\nall statutes or rules of law.\n13.\nIncorporation of Recitals. The Recitals set forth above are hereby\nincorporated into and made a part of this Agreement.\n14.\nGoverning. Law. This Agreement, and the rights and obligations of the\nparties hereunder, will be governed by and construed in accordance with the\nlaws of the State of Colorado, without regard to its conflict of laws principles.\nIN WITNESS WHEREOF, the parties hereto have executed this Noncompetition and\nConfidentiality Agreement as of the date first above written.\nSELLING PRINCIPAL:\n/s/ Fedele V. Scutti\nFedele V. Scutti, an individual\nBUYER:\nGLOBAL CASINOS, INC., and its wholly-\nowned subsidiary DOC HOLLIDAY CASINO\nII, LLC (by Global Casinos, Inc., its Manager)\nBy: /s/ Clifford L. Neuman\nClifford L. Neuman, its President\n4	EX-99 .2 12 noncompagmt.htm NONCOMPETITION AND CONFIDENTIALITY AGREEMENT\nNONCOMPETITION AND CONFIDENTIALITY AGREEMENT\nThis NONCOMPETITION AND CONFIDENTIALITY AGREEMENT (the\n“Agreement”) is made and entered into as of March ____, 2008, by and among FEDELE V.\nSCUTTI (the “Selling Principal”), and GLOBAL CASINOS, INC., a Utah corporation and\nits wholly-owned subsidiary, DOC HOLLIDAY CASINO II, LLC, a Colorado limited\nliability company (collectively “Buyer”).\nRECITALS\nA.\nDoc Holliday Casino, LLC, a Colorado limited liability company and Selling\nPrincipal (collectively “Seller”) and Buyer are parties to that certain Asset Purchase and Sale\nAgreement dated as of June 14, 2007, as amended by Amendment No. 1 dated September 28,\n2007, by Amendment No. 2 dated November 30, 2007, by Amendment No. 3 dated\nDecember 5, 2007, by Amendment No. 4 dated January 30, 2008 and by Amendment No. 5\ndated March 3, 2008 (“Purchase Agreement”), relating to the purchase by Buyer of\nsubstantially all of the tangible and intangible property and assets (“Assets”) of the Business\nowned by Seller known as Doc Holliday Casino, 129-131 Main Street, Central City, CO (the\n“Business”). Capitalized terms used but not otherwise defined in this Agreement will have\nthe meanings ascribed to such terms in the Purchase Agreement.\nB.\nPursuant to the terms and conditions of the Purchase Agreement, the Selling\nPrincipal is executing this Agreement, in part, because such individual has developed and\nobtained substantial and detailed experience and extensive and valuable knowledge and\nConfidential Information concerning the Seller, the Assets, and the Business.\nC.\nAs a condition to the consummation of the Contemplated Transactions, and to\nenable Buyer to secure more fully the benefits of its acquisition of the Assets and the\nBusiness, as set forth in the Purchase Agreement, and to induce the Buyer to consummate the\nContemplated Transactions, Selling Principals are entering into this Agreement.\nAGREEMENT\nNOW, THEREFORE, in consideration of the premises, the payment of the Purchase\nPrice set forth in the Purchase Agreement, and other good and valuable consideration, the\nreceipt and sufficiency of which are hereby acknowledged, and intending to be legally bound,\nSelling Principals and Buyer hereby agree as follows:\n1.\nCovenant Not to Compete. Selling Principal will not, without Buyer ’s prior\nwritten consent, directly or indirectly: (i) own, have an interest in (other than as a less than\n5.0% equity owner of any Person traded on any national, international, or regional stock\nexchange or in the over-the-counter market, which 5.0% threshold includes the as-converted\namount of any securities convertible into the equity securities of such Person), operate, join,\ncontrol, or participate in, or be connected with as an officer, employee, partner, consultant, or\notherwise with, any Person having, developing or operating any entity or other relationship\ncompetitive with the Business or the Assets; or (ii) in any manner compete with, or become\ninvolved in any competitor of, Buyer anywhere within the geographic boundaries of the State\nof Colorado (the “Restricted Area”) for a period of five (5) years from the latest to occur of\nthe date that such Selling Principal is no longer employed by, affiliated with, or an equity\n1\nowner (either individually or as an equity owner of Seller) of Buyer (the “Restricted Period”).\nIf a court of competent jurisdiction concludes that the foregoing covenants are unenforceable\naccording to their terms, either because of the duration of the Restricted Period or the scope\nof the Restricted Area, Selling Principals and Buyer agree that a court of competent\njurisdiction will reduce the duration of the Restricted Period or the scope of the Restricted\nArea so that the resulting duration and scope will be the maximum that such court will\nconclude is enforceable, which reduction will be performed as follows: (a) in the case of the\nRestricted Period, the duration will be reduced by one month at a time until it will be the\nmaximum enforceable duration; and, (b) in the case of Restricted Area, such area will be\nreduced by eliminating individual states one at a time therefrom starting with the state\nfurthest from the State of Colorado until such area will be the maximum enforceable\ngeographical coverage.\n2.\nConfidential Information.\n(a)\n“Confidential Information” means all information concerning the Assets and\nthe Business, including, without limitation: (i) any and all know-how, improvements, trade\nsecrets, and other information concerning the Assets and the Business, Seller ’s customer lists;\n(ii) any and all materials containing or based, in whole or in part, on any information\nincluded in the foregoing; (iii) any Confidential Information (as defined in the Purchase\nAgreement); and (iv) the terms and conditions of the Purchase Agreement, any Ancillary\nDocument, and any other schedule, exhibit, certificate, Contract, document, or instrument\nexecuted and delivered pursuant thereto. “Confidential Information” does not include\ninformation that is or becomes generally known or available to the public (other than by\nreason of the breach of this Agreement or the Purchase Agreement or any other obligation of\nconfidentiality).\n(b) Selling Principal (i) will not disclose Confidential Information, except as\ncompelled by law pursuant to a final Order of a court of competent jurisdiction not subject to\nappeal, (ii) will not use any of the Confidential Information for any reason or purpose other\nthan to consummate the Contemplated Transactions or to carry out the business plan of Buyer\nafter the Closing, and (iii) will take all reasonably necessary and appropriate efforts to\nsafeguard the Confidential Information from disclosure to anyone other than Buyer and its\nrespective agents.\n3.\nNon-Solicitation. As further inducement for Buyer to enter into the Purchase\nAgreement, Selling Principal will not, during the Restricted Period: (a) hire any employee or\nindependent contractor of Buyer; (b) induce or attempt to induce, directly or indirectly, any\nemployee of Buyer to leave his or her employment with Buyer; (c) interfere, in any way, with\nthe relationship between the Buyer and its employees; (d) induce or attempt to induce any\ncustomer, supplier, licensee, or business relation of Buyer to cease doing business with\nBuyer, or in any way interfere with the relationship between any customer, supplier, licensee,\nor business relation of Buyer; or (e) solicit, directly or indirectly, either for himself or any\nother Person, the business of any Person known to the Selling Principal or reasonably\nbelieved by the Selling Principal to be a customer of Buyer, whether or not the Selling\nPrincipal had personal contact with such Person.\n4.\nEnforcement. Selling Principal agrees and acknowledges that a violation of\nthis Agreement will constitute immediate, irreparable harm to Buyer for which monetary\ndamages are insufficient. The parties hereto therefore agree that, in addition to any other\n2\nrights or remedies, Buyer is entitled to seek and obtain (a) a decree or Order of specific\nperformance to enforce the observance and performance of the agreements, covenants, or\nobligations in this Agreement, and (b) an injunction restraining any breach or threatened\nbreach of this Agreement. Selling Principal further agrees that Buyer will not be required to\nobtain, and Selling Principal irrevocably waives any right that he may have to require Buyer\nto, furnish or post any bond or similar instrument in connection with or as a condition to\nobtaining any remedy referred to in this Section 4.\n5.\nAcknowledgments. Selling Principal agrees and acknowledges that the rights\nand consideration provided for in this Agreement and the Purchase Agreement are adequate\nconsideration for the agreements herein made and that such covenants, and the territorial,\ntime, and other limitations with respect thereto, are reasonable and properly required for the\nadequate protection of Buyer ’s acquisition of the Business and the Assets, and Selling\nPrincipal agrees and acknowledges that such limitations are reasonable with respect to the\nbusiness activities, and do not impose undue hardship on Selling Principal.\n6.\nAssignment. This Agreement may not be assigned by Selling Principal.\nBuyer may assign this Agreement, in whole or in part, to any Person deriving title from\nBuyer to the Business or the Assets: provided, however, that if Buyer will sell, transfer, or\nassign less than all of its interest in the Business or the Assets, the obligations of Selling\nPrincipal under this Agreement will continue both as to Buyer and as to any successor(s) in\ninterest of the assigned portion of the Business or the Assets.\n7.\nSeverability. If any provision of this Agreement is held by a court of\ncompetent jurisdiction to be unenforceable, or enforceable only if modified, such holding will\nnot effect the validity of the remainder of this Agreement, the balance of which will continue\nto be binding upon the parties hereto with any such modification (if any) to become a part\nhereof and treated as though contained in this Agreement. The parties hereto further agree\nthat any such court is expressly authorized to modify any unenforceable provision of this\nAgreement in lieu of severing the unenforceable provision from this Agreement in its\nentirety, whether by rewriting the offending provision, adding additional language to this\nAgreement, deleting language, or by making such other modification that the court deems\nwarranted to carry out the intent of the parties hereto as indicated by the terms of this\nAgreement and the Purchase Agreement. The parties hereto expressly agree that this\nAgreement as so modified by the court will be binding upon and enforceable against each of\nthem.\n8.\nCounterparts. This Agreement and any amendment hereof may be executed\nin any number of counterparts, each of which will be deemed an original and all of which,\ntogether, will constitute one and the same instrument. In producing this Agreement, it will\nnot be necessary to produce or account for more than one counterpart signed by the party\nagainst whom enforcement is sought.\n9.\nAmendments and Waivers; Construction. No amendment, modification,\ntermination, or waiver of any provision of this Agreement will be effective unless in writing\nand signed by all of the parties hereto, and then only to the extent specifically set forth\ntherein. This Agreement will not be construed more strictly against one party by virtue of the\nfact that this Agreement may have been prepared by counsel for one of the parties, it being\n3\nrecognized that each of the parties hereto have contributed substantially and materially to the\npreparation of this Agreement.\n10. No Waivers by Implication. No course of dealing on the part of any party, or\ntheir respective officers, directors, employees, consultants, or agents, nor any failure or delay\nby any party with respect to exercising any of their respective rights, powers, or privileges\nunder this Agreement or law will operate as a waiver thereof. No waiver by any party of any\ncondition or the breach of any term, covenant, or agreement contained in this Agreement,\nwhether by conduct or otherwise, in any one or more instances will be deemed a further or\ncontinuing waiver of any term, covenant, or agreement of this Agreement.\n11. Entire Agreement. Except as may be set forth in the Purchase Agreement,\nthis Agreement embodies the entire agreement and understanding between the parties hereto\nand supersedes all prior agreements and understandings between the parties hereto relating to\nthe subject matter hereof. If there is a conflict between the terms, conditions, representations,\nwarranties, and covenants contained in this Agreement and any other document, then the\nprovisions in this Agreement will control; provided, however, that if any terms or conditions\nof this Agreement conflict with terms or conditions of the Purchase Agreement, the terms and\nconditions of the Purchase Agreement will control.\n12. Rights Cumulative. Except as set forth in this Agreement, all rights, powers,\nand remedies under this Agreement are cumulative and not alternative and are in addition to\nall statutes or rules of law.\n13. Incorporation of Recitals. The Recitals set forth above are hereby\nincorporated into and made a part of this Agreement.\n14. Governing Law. This Agreement, and the rights and obligations of the\nparties hereunder, will be governed by and construed in accordance with the\nlaws of the State of Colorado, without regard to its conflict of laws principles.\nIN WITNESS WHEREOF, the parties hereto have executed this Noncompetition and\nConfidentiality Agreement as of the date first above written.\nSELLING PRINCIPAL:\n/s/ Fedele V. Scutti\nFedele V. Scutti, an individual\nBUYER:\nGLOBAL CASINOS, INC., and its wholly-\nowned subsidiary DOC HOLLIDAY CASINO\nII, LLC (by Global Casinos, Inc., its Manager)\nBy: /s/ Clifford L. Neuman\nClifford L. Neuman, its President\n4
+e8f05da84a3414250afe3702961f055b.pdf	effective_date jurisdiction party	EXHIBIT C\nNONDISCLOSURE, NONSOLICITATION AND NONCOMPETITION AGREEMENT\nTHIS NONDISCLOSURE, NONSOLICITATION AND NONCOMPETITION AGREEMENT\n(“Agreement”), dated as of April 27, 2010, is between Scott Telesz (“Employee”) and Praxair, Inc. (Praxair,\nInc. and its Affiliates are collectively referred to herein as “Praxair”). Employee and Praxair are collectively\nreferred to herein as the “Parties”.\nSECTION 1. Reason for Agreement. The industrial gases and other businesses in which Praxair participates\nare intensely competitive. All of the major companies that compete in these businesses are continually\nsearching for competitive advantage that will give them a benefit over their competitors in the marketplace.\nPraxair develops its employees by providing them with training, education, access to Praxair’s intellectual\nproperty, systems, strategies and other confidential information in order to make them as competitive and\neffective as possible in performing their jobs for the benefit of Praxair’s shareholders and other constituencies\nwith an interest in Praxair’s success: its employees, customers, suppliers and the communities in which Praxair\ndoes business. The loss of an employee represents the loss of a significant investment and competitive asset to\nPraxair, and if the employee is lost to a competitor, that investment could be used against Praxair in the\ncompetitive marketplace. The purpose of this Agreement is to protect Praxair’s investment in its employees, its\nstrategic Confidential Information (as defined herein) and customers, and to prevent that investment from being\nused against Praxair for a reasonable period of time.\nSECTION 2. Consideration. Employee acknowledges that Praxair has offered Employee both the benefits\nand protection under a CIC Agreement (as defined herein), as well as continued eligibility to participate in the\nVariable Compensation Plan (as defined herein), as consideration for Employee’s agreement to all the terms of\nthis Agreement. Employee understands and agrees that this consideration has material value and benefit, above\nand beyond any continuation of Praxair employment, and that Employee would not be entitled to such\nconsideration unless he or she signs and agrees to be bound by this Agreement. Praxair agrees to provide\nEmployee this consideration only in exchange for his or her compliance with all the terms of this Agreement.\nSECTION 3. Confidentiality and Business Interests. Employee agrees to:\n•\nkeep secret and confidential and neither use nor disclose, by any means, either during or subsequent to\nhis or her employment, any Confidential Information except as provided below or required in his or her\nemployment with, or authorized in writing by, Praxair;\n•\nassign to Praxair or its designee (and Employee hereby does assign), all right, title and interest in and to\nall Subject Developments;\n•\npromptly disclose to Praxair all Subject Developments, in writing and in reasonable detail, and to assist\nin the preparation of and to execute all appropriate papers or documents and otherwise provide proper\nassistance to enable Praxair to secure, maintain, enforce and defend its patents, copyrights and any other\nlegal protection available for such Subject Developments in any and all countries;\n•\nnot disclose to Praxair nor to utilize in Employee’s work for Praxair any confidential information or\ntrade secrets of others known to Employee (including prior employers);\n•\nkeep confidential and not disclose or use, either during or subsequent to Employee’s employment, any\nconfidential information or trade secrets of others which Employee receives during the course of his or\nher employment with Praxair for so long as and to the same extent as Praxair is obligated to retain such\ninformation or trade secrets in confidence; and\n•\ndeliver to Praxair promptly upon the end of Employee’s employment all written and other materials\nwhich constitute or contain Confidential Information or Subject Developments or which are the property\nof Praxair, and to not remove or take any such written and other materials.\nThese obligations will not apply to Confidential Information to the extent that it: (a) is or becomes publicly\nknown by means other than Employee’s failure to live up to his or her obligations under this Agreement; (b)\nwas known to Employee prior to disclosure to Employee by or on behalf of Praxair and Employee can prove it;\nor (c) is received by Employee in good faith from a third party (not an Affiliate) which has no obligation of\nconfidentiality to Praxair with respect thereto. Notwithstanding anything contained herein to the contrary,\nConfidential Information will not lose its protected status under this Agreement if it becomes generally known\nto the public or to other persons through improper means. Praxair’s confidential exchange of Confidential\nInformation with a third party for business purposes will not remove it from protection under this Agreement.\nIf disclosure of Confidential Information or Subject Developments is compelled by law, Employee shall give\nPraxair as much written notice as possible under the circumstances, will refrain from use or disclosure for as\nlong as the law allows, and will cooperate with Praxair to protect such information, including taking every\nreasonable step necessary to protect against unnecessary disclosure.\nEmployee acknowledges that he or she has been notified by Praxair that the provisions of this Section 3 do not\napply to any invention with respect to which no equipment, supplies, facility, or Confidential Information of\nPraxair was used and which was developed entirely on Employee’s own time, unless the invention: (a) relates\nto Praxair’s business or actual or demonstrably anticipated research or development; or (b) results from any\nwork performed by Employee for Praxair. Employee also understands and acknowledges that the copyrights in\nall copyrightable works prepared by Employee, alone or with others, in the course of his or her employment are\nowned solely by Employee’s employer.\nThe provisions of this Section 3 shall continue in effect for the duration of Employee’s employment with\nPraxair at any and all locations, either in the United States or a foreign country and its obligations shall survive\nthe termination of Employee’s employment for any reason.\nSECTION 4. Protective Covenants. Employee agrees that the following covenants are (a) ancillary to the\nother enforceable agreements contained in this Agreement, and (b) reasonable and necessary to protect\nlegitimate Praxair business interests.\n4.1 Restriction on Interfering with Employee Relationships. Employee agrees that for a period of\ntwo (2) years following the end of his or her employment with Praxair, Employee will not interfere with\nPraxair’s business relationship with a Praxair employee, by soliciting or communicating with such an\nemployee to induce or encourage him or her to leave Praxair’s employ (regardless of who first initiates\nthe communication), by helping another person or entity evaluate a Praxair employee as an employment\ncandidate, or by otherwise helping any person or entity hire an employee away from Praxair; unless a\nduly authorized Praxair officer gives Employee written authorization to do so.\n4.2 Restriction on Interfering with Customer Relationships. Employee agree\ns that for a period of two (2) years following the end of his or her employment with Praxair, Employee will not\ninterfere with Praxair’s business relationships with a Covered Customer, by soliciting or communicating\n(regardless of who initiates the communication) with a Covered Customer to induce or encourage the Covered\nCustomer to: (a) stop or reduce doing business with Praxair, or (b) to buy a Conflicting Product or Service;\nunless a duly authorized Praxair officer gives Employee written authorization to do so. The Parties agree this\nrestriction is inherently reasonable.\n4.3 Restriction on Unfair Competition. Employee agrees that for a period of two (2) years following the end\nof his or her employment with Praxair, Employee will not participate in, supervise, or manage (as an employee,\nconsultant, contractor, officer, owner, director, or otherwise) Competing Activities in the Restricted Area.\n4.4 Survival of Restrictions. (a) Before accepting new employment, Employee will advise every future\nemployer of the restrictions in this Agreement. Employee agrees that Praxair may advise a future employer or\nprospective employer of this Agreement and its position on the potential application of this Agreement. (b) The\nAgreement’s post-employment obligations will survive the termination of Employee’s employment with\nPraxair, regardless of the cause of the termination. If Employee violates one of the post-employment\nrestrictions in this Agreement on which there is a specific time limitation, the time period for that restriction\nwill be extended by one day for each day Employee violates it, up to a maximum extension equal to the length\nof time prescribed for the restriction, so as to give Praxair the full benefit of the bargained-for length of\nforbearance. (c) It is the intention of the Parties that, if any court construes any provision or clause of this\nAgreement, or any portion thereof, to be illegal, void or unenforceable, because of duration of such provision,\nthe geographic scope or the subject matter covered thereby, such court shall reduce the duration, area, or matter\nof such provision, and, in its reduced form, such provision shall then be enforceable and shall be enforced. (d)\nIf Employee becomes employed with an Affiliate without signing a new agreement, the Affiliate will step into\nPraxair’s position under this Agreement, and will be entitled to the same protections and enforcement rights as\nPraxair.\n4.5 State Specific Modifications. While employee is a resident of Connecticut, the restrictions on use\nor disclosure of Confidential Information in Section 3 will only apply for three (3) years after the end of\nEmployee’s employment, where information that does not qualify as a trade secret is concerned; however, the\nrestrictions will continue to apply to trade secret information for as long as the information at issue remains\nqualified as a trade secret.\nSECTION 5. Definitions. For purposes of this Agreement, the following terms shall have the meanings\nassigned to them below:\n5.1“Affiliate” means: (a) any corporation 10% or more of the voting stock of which is owned or\ncontrolled by Praxair, Inc., or (b) any corporation owning or controlling 50% or more of the voting stock of\nPraxair, Inc.; or (c) any corporation 25% or more of the voting stock of which is owned or controlled by a\ncorporation owning or controlling 50% or more of the voting stock of Praxair, Inc.; or (d) any unincorporated\nentity, including a partnership, in which Praxair, Inc. has a 25% or more ownership interest, or which has a\n50% or more ownership interest in Praxair, Inc., or in which an entity having a 50% or more ownership interest\nin Praxair, Inc. has a 25% or more ownership interest.\n5.2“CIC Agreement” means the Severance Compensation Agreement, the form of which is attached\nhereto, that will provide Employee with severance and other valuable benefits in the event his or her Praxair\nemployment terminates for certain reasons within two (2) years after a change in control of\nPraxair (as defined in the CIC Agreement).\n5.3“Competing Activities” are any activities or services undertaken on behalf of a competitor (which is\nunderstood to mean any person or entity engaged in the business of providing a Conflicting Product or Service\nin the Restricted Area) that are the same or similar in function or purpose to those Employee performed for\nPraxair in the two (2) year period preceding the end of Employee’s employment with Praxair, or that are\notherwise likely to result in the use or disclosure of Confidential Information. Competing Activities are\nunderstood to exclude: activities on behalf of an independently operated subsidiary, division, or unit of a\ndiversified corporation or similar business that has common ownership with a competitor so long as the\nindependently operated business unit does not involve a Conflicting Product or Service; and, a passive and\nnon-controlling ownership interest in a competitor through ownership of less than 2% of the stock in a publicly\ntraded company.\n5.4“Confidential Information” includes but is not limited to: (a) any technical or business information,\nknow-how or trade secrets, patentable or not, in any form, including but not limited to data; diagrams; business,\nmarketing or sales plans; notes; drawings; models; prototypes; specifications; manuals; memoranda; reports;\ncustomer or vendor information; pricing or cost information; and computer programs, which are furnished to\nEmployee by Praxair or which Employees procures or prepares, alone or with others, in the course of his or her\nemployment; and (b) Subject Developments.\n5.5“Conflicting Product or Service” is a product and/or service that is the same or similar in function\nor purpose to a Praxair product and/or service, such that it would replace or compete with: (a) a product and/or\nservice Praxair provides to its customers; or (b) a product or service that is under development or planning by\nPraxair but not yet provided to customers and regarding which Employee was provided Confidential\nInformation in the course of employment. Conflicting Products or Services do not include a product or service\nof Praxair if Praxair is no longer in the business of providing such product or service to its customers at the\nrelevant time of enforcement.\n5.6\n“Covered Customer” is a Praxair customer (person or entity) Employee had business-related\ncontact or dealings with, or received Confidential Information about, in the two (2) year period preceding the\nend of Employee’s employment with Praxair. References to the end of Employee’s employment in this\nAgreement refer to the end, whether by resignation or termination, and without regard for the reason\nemployment ended.\n5.7\n“Restricted Area” is the United States and the additional areas within Asia, Europe, North\nAmerica, Central America and South America where Praxair marketed (either individually, through\nsubsidiaries, and/or through strategic alliances or partner companies) its products and services at any time\nduring the twelve months preceding the termination of Employee’s employment with Praxair. The Parties agree\nthat, at the time of execution of this Agreement, the Restricted Area includes, but is not necessarily limited to:\nChina, Austria, India, Japan, Korea, Malaysia, Singapore, Taiwan, Thailand, Canada, Belgium,\nBosnia-Herzegovina, Bulgaria, Croatia, Czech Republic, Denmark, France, Germany, Hungary, Italy,\nNetherlands, Norway, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland,\nUkraine, United Kingdom, Argentina, Costa Rica, Mexico, Puerto Rico, United States, Bolivia, Brazil, Chile,\nColumbia, Paraguay, Peru, Uruguay, and Venezuela.\n5.8\n“Subject Developments” means all inventions, discoveries, improvements, developments,\ntechnical information, and know-how, (patentable or not), made, developed, invented, discovered or conceived\nby Employee, alone or with others, in the course or as a result of such employment or tasks assigned Employee\nby Praxair.\n5.9\n“Variable Compensation Plan” means the 2002 Praxair, Inc. Variable Compensation Plan, as\nmay be amended from time to time, or any successor variable compensation plan adopted by Praxair.\nSECTION 6. Notices. While employed by Praxair, and for two (2) years thereafter, Employee will: (a) give\nPraxair written notice at least thirty (30) days prior to going to work for a competitor; (b) provide Praxair with\nsufficient information about his or her new position to enable Praxair to determine if Employee’s services in\nthe new position would likely lead to a violation of this Agreement; and (c) within thirty days of Praxair’s\nrequest, participate in a mediation or in-person conference to discuss and/or resolve any issues raised by\nEmployee’s new position. Employee will be responsible for all consequential damages caused by failure to\ngive Praxair notice as provided in this Section.\nSECTION 7. Remedies. If Employee breaches or threatens to breach this Agreement, Praxair may recover: (a)\nan order of specific performance or declaratory relief; (b) injunctive relief by temporary restraining order,\ntemporary injunction, and/or permanent injunction; (c) damages; (d) attorney's fees and costs incurred in\nobtaining relief; and (e) any other legal or equitable relief or remedy allowed by law. One Thousand Dollars\n($1,000.00) is the agreed amount for the bond to be posted if an injunction is sought by Praxair to enforce the\nrestrictions in this Agreement on Employee. Employee also agrees that if s/he challenges the enforceability of\nthe Protective Covenants in Section 4 of this Agreement, and any such provisions are found to be\nunenforceable, then: (x) Employee will owe Praxair an amount equal to the sum of any and all such payments,\nincluding the value of any benefits provided in kind, that Employee has received under the CIC Agreement and\nEmployee will waive his/her right to any further benefits thereunder; and (y) Employee will owe Praxair an\namount equal to the sum of any and all payments that Employee has received under the Variable Compensation\nPlan during the two (2) year period immediately preceding the end of Employee’s employment with Praxair.\nSECTION 8. Severability, Waiver, Modification, Assignment, Governing Law. (a) It is the intention of the\nParties that if any provision of the Agreement is determined by a court of competent jurisdiction to be void,\nillegal or unenforceable, in whole or in part, all other provisions will remain in full force and effect, as if the\nvoid, illegal, or unenforceable provision is not part of the Agreement. (b) If either Party waives his, her, or its\nright to pursue a claim for the other’s breach of any provision of the Agreement, the waiver will not extinguish\nthat Party’s right to pursue a claim for a subsequent breach. (c) Except where otherwise expressly indicated, the\nAgreement contains the Parties’ entire agreement concerning the matters covered in it; provided that if a\npost-employment restrictive covenant in this Agreement is found unenforceable (despite, and after application\nof, any applicable right to reformation that could add or renew enforceability), then any prior agreement\nbetween the Parties that would provide for a restriction on the same or substantially similar post-employment\nconduct of Employee shall not be considered superseded and shall remain in effect. The Agreement may not be\nwaived, modified, altered or amended except by written agreement of all Parties or by court order. (d) The\nAgreement will inure to the benefit of Praxair’s successors in interest, Affiliates, subsidiaries, parents,\npurchasers, or assignees, and may be enforced by any one or more of same, without need of any further\nauthorization or agreement from Employee. (e) The laws of the State of Connecticut will govern the\nAgreement, the construction of its terms, and the interpretation of the rights and duties of the Parties, regardless\nof any conflicts of law principles of the state. The exclusive venue for any legal action arising from this\nAgreement will be the state or federal courts of Connecticut. Employee stipulates and consents to the state or\nfederal courts of Connecticut’s personal jurisdiction over him or her, and waives his or her right to objection to\na Connecticut court’s jurisdiction.\nSECTION 9. Jury Trial Waiver. The Parties hereby waive their right to jury trial on any legal dispute arising\nfrom or relating to this Agreement, and consent to the submission of all issues of fact and law arising from this\nAgreement to the judge of a court of competent jurisdiction as otherwise provided for\nabove.\nSECTION 10. Effect on Prior Agreements. Except as otherwise provided herein, this Agreement shall\nsupersede the Non Compete and Non Solicitation Agreement between Praxair and the Employee dated as of\nFebruary 24, 1999 that Employee previously entered into as a condition of employment with, or promotion by,\nPraxair. Employee acknowledges that the obligations undertaken in this Agreement are separate from his or her\nobligations to Praxair in other agreements Employee has with Praxair, including but not limited to any\nConfidentiality or Memorandum of Employment Agreement, and that the enforceability of this Agreement has\nno bearing on any other agreements.\nNothing in this Agreement will be construed to create a contract of employment for a definite period of time or\nto prohibit either Party from having the freedom to end the employment relationship at-will, with or without\ncause.\nAGREED to and effective as of April 27, 2010.\nEMPLOYEE:\n/s/ Scott Telesz______________________\n(signature)\nPRAXAIR, INC.\nBy: /s/Stephen F. Angel__________________\nStephen F. Angel\nPrinted Name: Scott Telesz\n.\nIts: Chairman and Chief Executive Officer	EXHIBIT C\nNONDISCLOSURE, NONSOLICITATION AND NONCOMPETITION AGREEMENT\nTHIS NONDISCLOSURE, NONSOLICITATION AND NONCOMPETITION AGREEMENT\n(”A greement”), dated as of April 27, 2010, is between Scott Telesz (”Employee”) and Praxair, Inc. (Praxair,\nInc. and its Affiliates are collectively referred to herein as ”Praxair”). Employee and Praxair are collectively\nreferred to herein as the ”Parties”.\nSECTION 1. Reason for Agreement. The industrial gases and other businesses in which Praxair participates\nare intensely competitive. All of the major companies that compete in these businesses are continually\nsearching for competitive advantage that will give them a benefit over their competitors in the marketplace.\nPraxair develops its employees by providing them with training, education, access to Praxair“ s intellectual\nproperty, systems, strategies and other confidential information in order to make them as competitive and\neffective as possible in performing their jobs for the benefit of Praxair“ s shareholders and other constituencies\nwith an interest in Praxair“ s success: its employees, customers, suppliers and the communities in which Praxair\ndoes business. The loss of an employee represents the loss of a significant investment and competitive asset to\nPraxair, and if the employee is lost to a competitor, that investment could be used against Praxair in the\ncompetitive marketplace. The purpose of this Agreement is to protect Praxair“ s investment in its employees, its\nstrategic Confidential Information (as defined herein) and customers, and to prevent that investment from being\nused against Praxair for a reasonable period of time.\nSECTION 2. C onsideration. Employee acknowledges that Praxair has offered Employee both the benefits\nand protection under a CIC Agreement (as defined herein), as well as continued eligibility to participate in the\nVariable Compensation Plan (as defined herein), as consideration for Employee’s agreement to all the terms of\nthis Agreement. Employee understands and agrees that this consideration has material value and benefit, above\nand beyond any continuation of Praxair employment, and that Employee would not be entitled to such\nconsideration unless he or she signs and agrees to be bound by this Agreement. Praxair agrees to provide\nEmployee this consideration only in exchange for his or her compliance with all the terms of this Agreement.\nSECTION 3. C onfidentiality and Business Interests. Employee agrees to:\n° keep secret and confidential and neither use nor disclose, by any means, either during or subsequent to\nhis or her employment, any Confidential Information except as provided below or required in his or her\nemployment with, or authorized in writing by, Praxair;\n° assign to Praxair or its designee (and Employee hereby does assign), all right, title and interest in and to\nall Subject Developments;\n° promptly disclose to Praxair all Subject Developments, in writing and in reasonable detail, and to assist\nin the preparation of and to execute all appropriate papers or documents and otherwise provide proper\nassistance to enable Praxair to secure, maintain, enforce and defend its patents, copyrights and any other\nlegal protection available for such Subject Developments in any and all countries;\n° not disclose to Praxair nor to utilize in Employee’s work for Praxair any confidential information or\ntrade secrets of others known to Employee (including prior employers);\n° keep confidential and not disclose or use, either during or subsequent to Employee’ s employment, any\nconfidential information or trade secrets of others which Employee receives during the course of his or\nher employment with Praxair for so long as and to the same extent as Praxair is obligated to retain such\ninformation or trade secrets in confidence; and\n° deliver to Praxair promptly upon the end of Employee’s employment all written and other materials\nwhich constitute or contain Confidential Information or Subject Developments or which are the property\nof Praxair, and to not remove or take any such written and other materials.\nThese obligations will not apply to Confidential Information to the extent that it: (a) is or becomes publicly\nknown by means other than Employee’s failure to live up to his or her obligations under this Agreement; (b)\nwas known to Employee prior to disclosure to Employee by or on behalf of Praxair and Employee can prove it;\nor (c) is received by Employee in good faith from a third party (not an Affiliate) which has no obligation of\nconfidentiality to Praxair with respect thereto. Notwithstanding anything contained herein to the contrary,\nConfidential Information will not lose its protected status under this Agreement if it becomes generally known\nto the public or to other persons through improper means. Praxair“ s confidential exchange of Confidential\nInformation with a third party for business purposes will not remove it from protection under this Agreement.\nIf disclosure of Confidential Information or Subject Developments is compelled by law, Employee shall give\nPraxair as much written notice as possible under the circumstances, will refrain from use or disclosure for as\nlong as the law allows, and will cooperate with Praxair to protect such information, including taking every\nreasonable step necessary to protect against unnecessary disclosure.\nEmployee acknowledges that he or she has been notified by Praxair that the provisions of this Section 3 do not\napply to any invention with respect to which no equipment, supplies, facility, or Confidential Information of\nPraxair was used and which was developed entirely on Employee’ s own time, unless the invention: (a) relates\nto Praxair“ s business or actual or demonstrably anticipated research or development; or (b) results from any\nwork performed by Employee for Praxair. Employee also understands and acknowledges that the copyrights in\nall copyrightable works prepared by Employee, alone or with others, in the course of his or her employment are\nowned solely by Employee’s employer.\nThe provisions of this Section 3 shall continue in effect for the duration of Employee’s employment with\nPraxair at any and all locations, either in the United States or a foreign country and its obligations shall survive\nthe termination of Employee’ s employment for any reason.\nSECTION 4. Protective Covenants. Employee agrees that the following covenants are (a) ancillary to the\nother enforceable agreements contained in this Agreement, and (b) reasonable and necessary to protect\nlegitimate Praxair business interests.\n4.1 Restriction on Interfering with Employee Relationships. Employee agrees that for a period of\ntwo (2) years following the end of his or her employment with Praxair, Employee will not interfere with\nPraxair“ s business relationship with a Praxair employee, by soliciting or communicating with such an\nemployee to induce or encourage him or her to leave Praxair“ s employ (regardless of who first initiates\nthe communication), by helping another person or entity evaluate a Praxair employee as an employment\ncandidate, or by otherwise helping any person or entity hire an employee away from Praxair, unless a\nduly authorized Praxair officer gives Employee written authorization to do so.\n4.2 Restriction on Interfering with Customer Relationships. Employee agree\ns that for a period of two (2) years following the end of his or her employment with Praxair, Employee will not\ninterfere with Praxair s business relationships with a Covered Customer, by soliciting or communicating\n(regardless of who initiates the communication) with a Covered Customer to induce or encourage the Covered\nCustomer to: (a) stop or reduce doing business with Praxair, or (b) to buy a Conflicting Product or Service;\nunless a duly authorized Praxair officer gives Employee written authorization to do so. The Parties agree this\nrestriction is inherently reasonable.\n4.3 Restriction on Unfair C ompetition. Employee agrees that for a period of two (2) years following the end\nof his or her employment with Praxair, Employee will not participate in, supervise, or manage (as an employee,\nconsultant, contractor, officer, owner, director, or otherwise) Competing A ctivities in the Restricted Area.\n4.4 Survival of Restrictions. (a) Before accepting new employment, Employee will advise every future\nemployer of the restrictions in this Agreement. Employee agrees that Praxair may advise a future employer or\nprospective employer of this Agreement and its position on the potential application of this Agreement. (b) The\nAgreement’ s post- employment obligations will survive the termination of Employee’ s employment with\nPraxair, regardless of the cause of the termination. If Employee violates one of the post- employment\nrestrictions in this Agreement on which there is a specific time limitation, the time period for that restriction\nwill be extended by one day for each day Employee violates it, up to a maximum extension equal to the length\nof time prescribed for the restriction, so as to give Praxair the full benefit of the bargained-for length of\nforbearance. (c) It is the intention of the Parties that, if any court construes any provision or clause of this\nAgreement, or any portion thereof, to be illegal, void or unenforceable, because of duration of such provision,\nthe geographic scope or the subject matter covered thereby, such court shall reduce the duration, area, or matter\nof such provision, and, in its reduced form, such provision shall then be enforceable and shall be enforced. (d)\nIf Employee becomes employed with an Affiliate without signing a new agreement, the Affiliate will step into\nPraxair s position under this Agreement, and will be entitled to the same protections and enforcement rights as\nPraxair.\n4.5 State Specific Modifications. While employee is a resident of Connecticut, the restrictions on use\nor disclosure of Confidential Information in Section 3 will only apply for three (3) years after the end of\nEmployee’s employment, where information that does not qualify as a trade secret is concerned; however, the\nrestrictions will continue to apply to trade secret information for as long as the information at issue remains\nqualified as a trade secret.\nSECTION 5. Definitions. For purposes of this Agreement, the following terms shall have the meanings\nassigned to them below:\n5.1”Affiliate” means: (a) any corporation 10% or more of the voting stock of which is owned or\ncontrolled by Praxair, Inc., or (b) any corporation owning or controlling 50% or more of the voting stock of\nPraxair, Inc. ; or (c) any corporation 25% or more of the voting stock of which is owned or controlled by a\ncorporation owning or controlling 50% or more of the voting stock of Praxair, Inc. ; or (d) any unincorporated\nentity, including a partnership, in which Praxair, Inc. has a 25% or more ownership interest, or which has a\n50% or more ownership interest in Praxair, Inc., or in which an entity having a 50% or more ownership interest\nin Praxair, Inc. has a 25% or more ownership interest.\n5.2”CIC Agreement” means the Severance Compensation Agreement, the form of which is attached\nhereto, that will provide Employee with severance and other valuable benefits in the event his or her Praxair\nemployment terminates for certain reasons within two (2) years after a change in control of\nPraxair (as defined in the CIC Agreement).\n5.3”C ompeting Activities” are any activities or services undertaken on behalf of a competitor (which is\nunderstood to mean any person or entity engaged in the business of providing a Conflicting Product or Service\nin the Restricted Area) that are the same or similar in function or purpose to those Employee performed for\nPraxair in the two (2) year period preceding the end of Employee’s employment with Praxair, or that are\notherwise likely to result in the use or disclosure of Confidential Information. Competing Activities are\nunderstood to exclude: activities on behalf of an independently operated subsidiary, division, or unit of a\ndiversified corporation or similar business that has common ownership with a competitor so long as the\nindependently operated business unit does not involve a Conflicting Product or Service; and, a passive and\nnon-controlling ownership interest in a competitor through ownership of less than 2% of the stock in a publicly\ntraded company.\n5.4”C onfidential Information” includes but is not limited to: (a) any technical or business information,\nknow-how or trade secrets, patentable or not, in any form, including but not limited to data; diagrams; business,\nmarketing or sales plans; notes; drawings; models; prototypes; specifications; manuals; memoranda; reports;\ncustomer or vendor information; pricing or cost information; and computer programs, which are furnished to\nEmployee by Praxair or which Employees procures or prepares, alone or with others, in the course of his or her\nemployment; and (b) Subject Developments.\n5.5”C onflicting Product or Service” is a product and/or service that is the same or similar in function\nor purpose to a Praxair product and/or service, such that it would replace or compete with: (a) a product and/or\nservice Praxair provides to its customers; or (b) a product or service that is under development or planning by\nPraxair but not yet provided to customers and regarding which Employee was provided Confidential\nInformation in the course of employment. Conflicting Products or Services do not include a product or service\nof Praxair if Praxair is no longer in the business of providing such product or service to its customers at the\nrelevant time of enforcement.\n5.6 ”C overed Customer” is a Praxair customer (person or entity) Employee had business-related\ncontact or dealings with, or received Confidential Information about, in the two (2) year period preceding the\nend of Employee’s employment with Praxair. References to the end of Employee’s employment in this\nA greement refer to the end, whether by resignation or termination, and without regard for the reason\nemployment ended.\n5.7 ”Restricted Area” is the United States and the additional areas within Asia, Europe, North\nAmerica, Central America and South America where Praxair marketed (either individually, through\nsubsidiaries, and/or through strategic alliances or partner companies) its products and services at any time\nduring the twelve months preceding the termination of Employee’ s employment with Praxair. The Parties agree\nthat, at the time of execution of this Agreement, the Restricted Area includes, but is not necessarily limited to:\nChina, Austria, India, Japan, Korea, Malaysia, Singapore, Taiwan, Thailand, Canada, Belgium,\nBosnia-Herzegovina, Bulgaria, Croatia, Czech Republic, Denmark, France, Germany, Hungary, Italy,\nNetherlands, Norway, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland,\nUkraine, United Kingdom, Argentina, Costa Rica, Mexico, Puerto Rico, United States, Bolivia, Brazil, Chile,\nColumbia, Paraguay, Peru, Uruguay, and Venezuela.\n5.8 ”Subject Developments” means all inventions, discoveries, improvements, developments,\ntechnical information, and know-how, (patentable or not), made, developed, invented, discovered or conceived\nby Employee, alone or with others, in the course or as a result of such employment or tasks assigned Employee\nby Praxair.\n5.9 ”V ariable Compensation Plan” means the 2002 Praxair, Inc. Variable Compensation Plan, as\nmay be amended from time to time, or any successor variable compensation plan adopted by Praxair.\nSECTION 6. Notices. While employed by Praxair, and for two (2) years thereafter, Employee will: (a) give\nPraxair written notice at least thirty (30) days prior to going to work for a competitor, (b) provide Praxair with\nsufficient information about his or her new position to enable Praxair to determine if Employee’s services in\nthe new position would likely lead to a violation of this Agreement; and (c) within thirty days of Praxair’ s\nrequest, participate in a mediation or in-person conference to discuss and/or resolve any issues raised by\nEmployee’s new position. Employee will be responsible for all consequential damages caused by failure to\ngive Praxair notice as provided in this Section.\nSECTION 7. Remedies. If Employee breaches or threatens to breach this Agreement, Praxair may recover: (a)\nan order of specific performance or declaratory relief; (b) injunctive relief by temporary restraining order,\ntemporary injunction, and/or permanent injunction; (c) damages; (d) attorney's fees and costs incurred in\nobtaining relief; and (e) any other legal or equitable relief or remedy allowed by law. One Thousand Dollars\n($1,000.00) is the agreed amount for the bond to be posted if an injunction is sought by Praxair to enforce the\nrestrictions in this Agreement on Employee. Employee also agrees that if s/he challenges the enforceability of\nthe Protective Covenants in Section 4 of this Agreement, and any such provisions are found to be\nunenforceable, then: (x) Employee will owe Praxair an amount equal to the sum of any and all such payments,\nincluding the value of any benefits provided in kind, that Employee has received under the CIC Agreement and\nEmployee will waive his/her right to any further benefits thereunder; and (y) Employee will owe Praxair an\namount equal to the sum of any and all payments that Employee has received under the Variable Compensation\nPlan during the two (2) year period immediately preceding the end of Employee’ s employment with Praxair.\nSECTIO N 8. Severability, Waiver, Modification, Assignment, G overning L aw. (a) It is the intention of the\nParties that if any provision of the Agreement is determined by a court of competent jurisdiction to be void,\nillegal or unenforceable, in whole or in part, all other provisions will remain in full force and effect, as if the\nvoid, illegal, or unenforceable provision is not part of the Agreement. (b) If either Party waives his, her, or its\nright to pursue a claim for the other s breach of any provision of the Agreement, the waiver will not extinguish\nthat Party’s right to pursue a claim for a subsequent breach. (c) Except where otherwise expressly indicated, the\nAgreement contains the Parties’ entire agreement concerning the matters covered in it; provided that if a\npost- employment restrictive covenant in this Agreement is found unenforceable (despite, and after application\nof, any applicable right to reformation that could add or renew enforceability), then any prior agreement\nbetween the Parties that would provide for a restriction on the same or substantially similar post-employment\nconduct of Employee shall not be considered superseded and shall remain in effect. The Agreement may not be\nwaived, modified, altered or amended except by written agreement of all Parties or by court order. (d) The\nAgreement will inure to the benefit of Praxair’ s successors in interest, Affiliates, subsidiaries, parents,\npurchasers, or assignees, and may be enforced by any one or more of same, without need of any further\nauthorization or agreement from Employee. (e) The laws of the State of Connecticut will govern the\nAgreement, the construction of its terms, and the interpretation of the rights and duties of the Parties, regardless\nof any conflicts of law principles of the state. The exclusive venue for any legal action arising from this\nAgreement will be the state or federal courts of Connecticut. Employee stipulates and consents to the state or\nfederal courts of Connecticut’s personal jurisdiction over him or her, and waives his or her right to objection to\na Connecticut court’ s jurisdiction.\nSECTION 9. |ury Trial Waiver. The Parties hereby waive their right to jury trial on any legal dispute arising\nfrom or relating to this Agreement, and consent to the submission of all issues of fact and law arising from this\nAgreement to the judge of a court of competent jurisdiction as otherwise provided for\nabove.\nSECTION 10. Effect on Prior Agreements. Except as otherwise provided herein, this Agreement shall\nsupersede the Non Compete and Non Solicitation Agreement between Praxair and the Employee dated as of\nFebruary 24, 1999 that Employee previously entered into as a condition of employment with, or promotion by,\nPraxair. Employee acknowledges that the obligations undertaken in this Agreement are separate from his or her\nobligations to Praxair in other agreements Employee has with Praxair, including but not limited to any\nConfidentiality or Memorandum of Employment Agreement, and that the enforceability of this Agreement has\nno bearing on any other agreements.\nNothing in this Agreement will be construed to create a contract of employment for a definite period of time or\nto prohibit either Party from having the freedom to end the employment relationship at-will, with or without\ncause.\nAGREED to and effective as of April 27, 2010.\n \nEMPLOYEE: PRAXAIR, INC.\n/s/ Scott Telesz By: /s/Stephen F. Angel _________________\n(signature) Stephen F. Angel\nPrinted Name: Scott Telesz Its: Chairman and Chief Executive Officer	EXHIBIT C\nNONDISCLOSURE NONSOLICITATION AND NONCOMPETITION AGREEMENT\nTHIS NONDISCLOSURE, NONSOLICITATION AND NONCOMPETITION AGREEMENT\ngreement"), dated as of pril 27, 2010, is between Scott Telesz ("Employee") and Praxair, Inc. (Praxair,\nInc. and its A ffiliates are collectively referred to herein as "Praxair"). Employee and Praxair are collectively\nreferred to herein as the "Parties".\nSECTION 1. Reason for Agreement. The industrial gases and other businesses in which Praxair participates\nare intensely competitive. All of the major companies that compete in these businesses are continually\nsearching for competitive advantage that will give them a benefit over their competitors in the marketplace.\nPraxair develops its employees by providing them with training, education, access to Praxair intellectual\nproperty, systems, strategies and other confidential information in order to make them as competitive and\neffective as possible in performing their jobs for the benefit of Praxair's shareholders and other constituencies\nwith\nan\ninterest\nin\nPraxair's\nsuccess:\nits\nemployees,\ncustomers,\nsuppliers\nand\nthe\ncommunities\nin\nwhich\nPraxair\ndoes business. The loss of an employee represents the loss of a significant investment and competitive asset to\nPraxair, and if the employee is lost to a competitor, that investment could be used against Praxair in the\ncompetitive marketplace. The purpose of this A greement is to protect Praxair' investment in its employees its\nstrategic Confidential Information (as defined herein) and customers, and to prevent that investment from being\nused against Praxair for a reasonable period of time.\nSECTION 2. Consideration. Employee acknowledges that Praxair has offered Employee both the benefits\nand protection under a CIC A greement (as defined herein), as well as continued eligibility to participate in the\nariable Compensation Plan (as defined herein), as consideration for Employee's agreement to all the terms of\nthis A greement. Employee understands and agrees that this consideration has material value and benefit, above\nand beyond any continuation of Praxair employment, and that Employee would not be entitled to such\nconsideration unless he or she signs and agrees to be bound by this A greement. Praxair agrees to provide\nEmployee this consideration only in exchange for his or her compliance with all the terms of this A greement.\nSECTION 3. Confidentiality and Business Interests. Employee agrees to:\nkeep secret and confidential and neither use nor disclose, by any means, either during or subsequent to\nhis or her employment, any Confidential Information except as provided below or required in his or her\nemployment with, or authorized in writing by, Praxair;\nassign to Praxair or its designee (and Employee hereby does assign), all right, title and interest in and to\nall Subject Developments;\npromptly disclose to Praxair all Subject Developments, in writing and in reasonable detail, and to assist\nin the preparation of and to execute all appropriate papers or documents and otherwise provide proper\nassistance to enable Praxair to secure, maintain, enforce and defend its patents, copyrights and any other\nlegal protection available for such Subject Developments in any and all countries;\nnot disclose to Praxair nor to utilize in Employee's work for Praxair any confidential information or\ntrade secrets of others known to Employee (including prior employers);\nkeep confidential and not disclose or use, either during or subsequent to Employee's employment, any\nconfidential information or trade secrets of others which Employee receives during the course of his\nor\nher employment with Praxair for so long as and to the same extent as Praxair is obligated to retain such\ninformation or trade secrets in confidence; and\ndeliver to Praxair promptly upon the end of Employee's employment all written and other materials\nwhich constitute or contain Confidential Information or Subject Developments or which are the property\nof Praxair, and to not remove or take any such written and other materials.\nThese obligations will not apply to Confidential Information to the extent that it: (a) is or becomes publicly\nknown by means other than Employee's failure to live up to his or her obligations under this A greement; (b)\nwas known to Employee prior to disclosure to Employee by or on behalf of Praxair and Employee can prove it;\nor\n(c) is received by Employee in good faith from a third party (not an Affiliate) which has no obligation of\nconfidentiality to Praxair with respect thereto. Notwithstanding anything contained herein to the contrary,\nConfidential Information will not lose its protected status under this A greement if it becomes generally known\nto the public or to other persons through improper means. Praxair's confidential exchange of Confidential\nInformation with a third party for business purposes will not remove it from protection under this A greement\nIf disclosure of Confidential Information or Subject Developments is compelled by law, Employee shall give\nPraxair as much written notice as possible under the circumstances, will refrain from use or disclosure for as\nlong as the law allows, and will cooperate with Praxair to protect such information, including taking every\nreasonable step necessary to protect against unnecessary disclosure.\nEmployee acknowledges that he or she has been notified by Praxair that the provisions of this Section 3 do not\napply\nto\nany\ninvention\nwith\nrespect\nto\nwhich\nno\nequipment,\nsupplies\nfacility,\nor\nConfidential\nInformation\nof\nPraxair was used and which was developed entirely on Employee's own time, unless the invention: (a) relates\nto Praxair's business or actual or demonstrably anticipated research or development or (b) results from any\nwork performed by Employee for Praxair. Employee also understands and acknowledges that the copyrights in\nall copyrightable works prepared by Employee, alone or with others, in the course of his or her employment are\nowned solely by Employee's employer\nThe provisions of this Section 3 shall continue in effect for the duration of Employee's employment with\nPraxair at any and all locations, either in the United States or a foreign country and its obligations shall survive\nthe termination of Employee's employment for any reason.\nSECTION 4. Protective Covenants. Employee agrees that the following covenants are (a) ancillary to the\nother enforceable agreements contained in this A greement, and (b) reasonable and necessary to protect\nlegitimate Praxair business interests.\n4.1 Restriction on Interfering with Employee Relationships. Employee agrees that for a period of\ntwo (2) years following the end of his or her employment with Praxair, Employee will not interfere with\nPraxair business relationship with a Praxair employee, by soliciting or communicating with such an\nemployee to induce or encourage him or her to leave Praxair's employ (regardless of who first initiates\nthe communication), by helping another person or entity evaluate a Praxair employee as an employment\ncandidate, or by otherwise helping any person or entity hire an employee away from Praxair; unless a\nduly authorized Praxair officer gives Employee written authorization to do SO.\n4.2 Restriction on Interfering with Customer Relationships. Employee agree\ns that for a period of two (2) years following the end of his or her employment with Praxair, Employee will not\ninterfere with Praxair's business relationships with a Covered Customer, by soliciting or communicating\n(regardless of who initiates the communication) with a Covered Customer to induce or encourage the Covered\nCustomer to: (a) stop or reduce doing business with Praxair, or (b) to buy a Conflicting Product or Service;\nunless a duly authorized Praxair officer gives Employee written authorization to do so. The Parties agree this\nrestriction is inherently reasonable.\n4.3 Restriction on Unfair Competition. Employee agrees that for a period of two (2) years following the end\nof his or her employment with Praxair, Employee will not participate in, supervise, or manage (as an employee,\nconsultant, contractor, officer, owner, director, or otherwise) Competing ctivities in the Restricted A rea.\n4.4 Survival of Restrictions. (a) efore accepting new employment Employee will advise every future\nemployer of the restrictions in this A greement. Employee agrees that Praxair may advise a future employer or\nprospective employer of this A greement and its position on the potential application of this greement. (b) The\nA greement' post-employment obligations will survive the termination of Employee's employment with\nPraxair, regardless of the cause of the termination. If Employee violates one of the post-employment\nrestrictions in this A greement on which there is a specific time limitation, the time period for that restriction\nwill be extended by one day for each day Employee violates it, up to a maximum extension equal to the length\nof time prescribed for the restriction, so as to give Praxair the full benefit of the bargained-for length of\nforbearance. (c) It is the intention of the Parties that, if any court construes any provision or clause of this\nA\ngreement,\nor\nany\nportion\nthereof,\nto\nbe\nillegal,\nvoid\nor\nunenforceable,\nbecause\nof\nduration\nof\nsuch\nprovision,\nthe geographic scope or the subject matter covered thereby, such court shall reduce the duration, area, or matter\nof such provision and, in its reduced form, such provision shall then be enforceable and shall be enforced (d)\nIf Employee becomes employed with an Affiliate without signing a new agreement, the Affiliate will step into\nPraxair' position under this A greement, and will be entitled to the same protections and enforcement rights as\nPraxair.\n4.5 State Specific Modifications. While employee is a resident of Connecticut, the restrictions on use\nor disclosure of Confidential Information in Section 3 will only apply for three (3) years after the end of\nEmployee' employment where information that does not qualify as a trade secret is concerned; however, the\nrestrictions will continue to apply to trade secret information for as long as the information at issue remains\nqualified as a trade secret\nSECTION 5. Definitions. For purposes of this A greement, the following terms shall have the meanings\nassigned to them below:\n"Affiliate" means: (a) any corporation 10% or more of the voting stock of which is owned or\ncontrolled by Praxair, Inc., or (b) any corporation owning or controlling 50% or more of the voting stock of\nPraxair, Inc.; or (c) any corporation 25% or more of the voting stock of which is owned or controlled by a\ncorporation owning or controlling 50% or more of the voting stock of Praxair, Inc.; or (d) any unincorporated\nentity, including a partnership, in which Praxair, Inc. has a 25% or more ownership interest, or which has a\n50% or more ownership interest in Praxair, Inc., or in which an entity having a 50% or more ownership interest\nin Praxair, Inc. has a 25% or more ownership interest.\n5.2"CIC Agreement" means the Severance Compensation A greement, the form of which is attached\nhereto, that will provide Employee with severance and other valuable benefits in the event his or her Praxair\nemployment terminates for certain reasons within two (2) years after a change in control of\nPraxair (as defined in the CIC A greement).\n5.3" ompeting Activities" are any activities or services undertaken on behalf of a competitor (which is\nunderstood to mean any person or entity engaged in the business of providing a Conflicting Product or Service\nin the Restricted A rea) that are the same or similar in function or purpose to those Employee performed for\nPraxair in the two (2) year period preceding the end of Employee's employment with Praxair, or that are\notherwise likely to result in the use or disclosure of Confidential Information. Competing A ctivities are\nunderstood to exclude: activities on behalf of an independently operated subsidiary, division, or unit of a\ndiversified corporation or similar business that has common ownership with a competitor so long as the\nindependently operated business unit does not involve a Conflicting Product or Service; and, a passive and\nnon-controlling ownership interest in a competitor through ownership of less than 2% of the stock in a publicly\ntraded company.\nonfidential Information" includes but is not limited to: (a) any technical or business information,\nknow-how or trade secrets, patentable or not, in any form, including but not limited to data; diagrams; business,\nmarketing\nor\nsales\nplans;\nnotes;\ndrawings;\nmodels;\nprototypes;\nspecifications;\nmanuals;\nmemoranda;\nreports;\ncustomer or vendor information; pricing or cost information; and computer programs, which are furnished to\nEmployee by Praxair or which Employees procures or prepares, alone or with others, in the course of his or her\nemployment; and (b) Subject Developments.\n'Conflicting Product or Service" is a product and/or service that is the same or similar in function\nor purpose to a Praxair product and/or service, such that it would replace or compete with: (a) a product and/or\nservice Praxair provides to its customers; or (b) a product or service that is under development or planning by\nPraxair but not yet provided to customers and regarding which Employee was provided Confidential\nInformation in the course of employment. Conflicting Products or Services do not include a product or service\nof Praxair if Praxair is no longer in the business of providing such product or service to its customers at the\nrelevant time of enforcement.\n5.6 "Covered Customer" is a Praxair customer (person or entity) Employee had business-related\ncontact or dealings with, or received Confidential Information about, in the two (2) year period preceding the\nend of Employee's employment with Praxair. References to the end of Employee's employment in this\nA greement refer to the end, whether by resignation or termination, and without regard for the reason\nemployment ended.\n5.7 "Restricted Area" is the United States and the additional areas within Asia, Europe, North\nA merica, Central merica and South A merica where Praxair marketed (either individually, through\nsubsidiaries, and/or through strategic alliances or partner companies) its products and services at any time\nduring the twelve months preceding the termination of Employee's employment with Praxair. The Parties agree\nthat, at the time of execution of this A greement, the Restricted A rea includes, but is not necessarily limited to:\nChina, ustria India, Japan, Korea, Malaysia, Singapore, Taiwan, Thailand, Canada, Belgium,\nBosnia-Herzegovina, Bulgaria, Croatia, Czech Republic, Denmark, France, Germany, Hungary, Italy,\nNetherlands, Norway, Portugal Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland,\nUkraine, United Kingdom, Argentina, Costa Rica, Mexico, Puerto Rico, United States, Bolivia, Brazil, Chile,\nColumbia, Paraguay, Peru, Uruguay, and Venezuela.\n5.8 "Subject Developments" means all inventions, discoveries, improvements, developments,\ntechnical information, and know-how, (patentable or not), made, developed, invented, discovered or conceived\nby Employee, alone or with others, in the course or as a result of such employment or tasks assigned Employee\nby Praxair.\n5.9 "Variable Compensation Plan" means the 2002 Praxair, Inc. Variable Compensation Plan, as\nmay be amended from time to time, or any successor variable compensation plan adopted by Praxair.\nSECTION 6. Notices. While employed by Praxair, and for two (2) years thereafter Employee will: (a) give\nPraxair written notice at least thirty (30) days prior to going to work for a competitor; (b) provide Praxair with\nsufficient information about his or her new position to enable Praxair to determine if Employee's services in\nthe new position would likely lead to a violation of this A greement; and (c) within thirty days of Praxair'\nrequest, participate in a mediation or in-person conference to discuss and/or resolve any issues raised by\nEmployee's new position Employee will be responsible for all consequential damages caused by failure to\ngive Praxair notice as provided in this Section\nSECTION 7. Remedies. If Employee breaches or threatens to breach this A greement, Praxair may recover: (a)\nan order of specific performance or declaratory relief; (b) injunctive relief by temporary restraining order,\ntemporary\ninjunction,\nand/or\npermanent\ninjunction\n(c)\ndamages;\n(d)\nattorney's\nfees\nand\ncosts\nincurred\nin\nobtaining relief; and (e) any other legal or equitable relief or remedy allowed by law. One Thousand Dollars\n($1,000.00) is the agreed amount for the bond to be posted if an injunction is sought by Praxair to enforce the\nrestrictions in this A greement on Employee. Employee also agrees that if s/he challenges the enforceability of\nthe Protective Covenants in Section 4 of this A greement, and any such provisions are found to be\nunenforceable, then: (x) Employee will owe Praxair an amount equal to the sum of any and all such payments,\nincluding the value of any benefits provided in kind, that Employee has received under the CIC A greement and\nEmployee will waive his/her right to any further benefits thereunder; and (y) Employee will owe Praxair an\namount equal to the sum of any and all payments that Employee has received under the variable Compensation\nPlan during the two (2) year period immediately preceding the end of Employee's employment with Praxair.\nSECTION 8. Severability, Naiver, Modification, Assignment, G overning Law. (a) It is the intention of the\nParties that if any provision of the A greement is determined by a court of competent jurisdiction to be void,\nillegal or unenforceable, in whole or in part, all other provisions will remain in full force and effect, as if the\nvoid, illegal, or unenforceable provision is not part of the A greement (b) If either Party waives his, her, or its\nright to pursue a claim for the other s breach of any provision of the A greement the waiver will not extinguish\nthat Party's right to pursue a claim for a subsequent breach. (c) Except where otherwise expressly indicated, the\nA greement contains the Parties' entire agreement concerning the matters covered in it; provided that if a\npost-employment restrictive covenant in this A greement is found unenforceable (despite, and after application\nof, any applicable right to reformation that could add or renew enforceability), then any prior agreement\nbetween the Parties that would provide for a restriction on the same or substantially similar post-employment\nconduct of Employee shall not be considered superseded and shall remain in effect. The A greement may not be\nwaived, modified altered or amended except by written agreement of all Parties or by court order. (d) The\nA greement will inure to the benefit of Praxair's successors in interest, A ffiliates, subsidiaries, parents,\npurchasers, or assignees, and may be enforced by any one or more of same, without need of any further\nauthorization or agreement from Employee. (e) The laws of the State of Connecticut will govern the\nA greement the construction of its terms, and the interpretation of the rights and duties of the Parties, regardless\nof any conflicts of law principles of the state. The exclusive venue for any legal action arising from this\nA greement will be the state or federal courts of Connecticut. Employee stipulates and consents to the state or\nfederal courts of Connecticut's persona jurisdiction over him or her, and waives his or her right to objection to\na Connecticut court's jurisdiction.\nSECTION 9. ury Trial Waiver. The Parties hereby waive their right to jury trial on any legal dispute arising\nfrom or relating to this A greement, and consent to the submission of all issues of fact and law arising from this\nA greement to the judge of a court of competent jurisdiction as otherwise provided for\nabove.\nSECTION 10. Effect on Prior Agreements. Except as otherwise provided herein, this A greement shall\nsupersede the Non Compete and Non Solicitation A greement between Praxair and the Employee dated as of\nFebruary 24, 1999 that Employee previously entered into as a condition of employment with, or promotion by,\nPraxair. Employee acknowledges that the obligations undertaken in this A greement are separate from his or her\nobligations to Praxair in other agreements Employee has with Praxair, including but not limited to any\nConfidentiality or Memorandum of Employment A greement, and that the enforceability of this A greement has\nno bearing on any other agreements.\nNothing in this A greement will be construed to create a contract of employment for a definite period of time or\nto prohibit either Party from having the freedom to end the employment relationship at-will, with or without\ncause.\nAGREED to and effective as of A pril 27, 2010.\nEMPLOYE EE\nPRAXAIR, INC.\n/s/ Scott Telesz\nBy: /s/Stephen F. A ngel\n(signature)\nStephen F. A ngel\nPrinted Name: Scott Telesz\nIts: Chairman and Chief Executive Officer	EXHIBIT C\nNONDISCLOSURE, NONSOLICITATION AND NONCOMPETITION AGREEMENT\nTHIS NONDISCLOSURE, NONSOLICITATION AND NONCOMPETITION AGREEMENT\n(“Agreement”), dated as of April 27, 2010, is between Scott Telesz (“Employee”) and Praxair, Inc. (Praxair,\nInc. and its Affiliates are collectively referred to herein as “Praxair”). Employee and Praxair are collectively\nreferred to herein as the “Parties”.\nSECTION 1. Reason for Agreement. The industrial gases and other businesses in which Praxair participates\nare intensely competitive. All of the major companies that compete in these businesses are continually\nsearching for competitive advantage that will give them a benefit over their competitors in the marketplace.\nPraxair develops its employees by providing them with training, education, access to Praxair’s intellectual\nproperty, systems, strategies and other confidential information in order to make them as competitive and\neffective as possible in performing their jobs for the benefit of Praxair’s shareholders and other constituencies\nwith an interest in Praxair’s success: its employees, customers, suppliers and the communities in which Praxair\ndoes business. The loss of an employee represents the loss of a significant investment and competitive asset to\nPraxair, and if the employee is lost to a competitor, that investment could be used against Praxair in the\ncompetitive marketplace. The purpose of this Agreement is to protect Praxair’s investment in its employees, its\nstrategic Confidential Information (as defined herein) and customers, and to prevent that investment from being\nused against Praxair for a reasonable period of time.\nSECTION 2. Consideration. Employee acknowledges that Praxair has offered Employee both the benefits\nand protection under a CIC Agreement (as defined herein), as well as continued eligibility to participate in the\nVariable Compensation Plan (as defined herein), as consideration for Employee’s agreement to all the terms of\nthis Agreement. Employee understands and agrees that this consideration has material value and benefit, above\nand beyond any continuation of Praxair employment, and that Employee would not be entitled to such\nconsideration unless he or she signs and agrees to be bound by this Agreement. Praxair agrees to provide\nEmployee this consideration only in exchange for his or her compliance with all the terms of this Agreement.\nSECTION 3. Confidentiality and Business Interests. Employee agrees to:\n•\nkeep secret and confidential and neither use nor disclose, by any means, either during or subsequent to\nhis or her employment, any Confidential Information except as provided below or required in his or her\nemployment with, or authorized in writing by, Praxair;\n•\nassign to Praxair or its designee (and Employee hereby does assign), all right, title and interest in and to\nall Subject Developments;\n•\npromptly disclose to Praxair all Subject Developments, in writing and in reasonable detail, and to assist\nin the preparation of and to execute all appropriate papers or documents and otherwise provide proper\nassistance to enable Praxair to secure, maintain, enforce and defend its patents, copyrights and any other\nlegal protection available for such Subject Developments in any and all countries;\n•\nnot disclose to Praxair nor to utilize in Employee’s work for Praxair any confidential information or\ntrade secrets of others known to Employee (including prior employers);\n•\nkeep confidential and not disclose or use, either during or subsequent to Employee’s employment, any\nconfidential information or trade secrets of others which Employee receives during the course of his or\nher employment with Praxair for so long as and to the same extent as Praxair is obligated to retain such\ninformation or trade secrets in confidence; and\n•\ndeliver to Praxair promptly upon the end of Employee’s employment all written and other materials\nwhich constitute or contain Confidential Information or Subject Developments or which are the property\nof Praxair, and to not remove or take any such written and other materials.\nThese obligations will not apply to Confidential Information to the extent that it: (a) is or becomes publicly\nknown by means other than Employee’s failure to live up to his or her obligations under this Agreement; (b)\nwas known to Employee prior to disclosure to Employee by or on behalf of Praxair and Employee can prove it;\nor (c) is received by Employee in good faith from a third party (not an Affiliate) which has no obligation of\nconfidentiality to Praxair with respect thereto. Notwithstanding anything contained herein to the contrary,\nConfidential Information will not lose its protected status under this Agreement if it becomes generally known\nto the public or to other persons through improper means. Praxair’s confidential exchange of Confidential\nInformation with a third party for business purposes will not remove it from protection under this Agreement.\nIf disclosure of Confidential Information or Subject Developments is compelled by law, Employee shall give\nPraxair as much written notice as possible under the circumstances, will refrain from use or disclosure for as\nlong as the law allows, and will cooperate with Praxair to protect such information, including taking every\nreasonable step necessary to protect against unnecessary disclosure.\nEmployee acknowledges that he or she has been notified by Praxair that the provisions of this Section 3 do not\napply to any invention with respect to which no equipment, supplies, facility, or Confidential Information of\nPraxair was used and which was developed entirely on Employee’s own time, unless the invention: (a) relates\nto Praxair’s business or actual or demonstrably anticipated research or development; or (b) results from any\nwork performed by Employee for Praxair. Employee also understands and acknowledges that the copyrights in\nall copyrightable works prepared by Employee, alone or with others, in the course of his or her employment are\nowned solely by Employee’s employer.\nThe provisions of this Section 3 shall continue in effect for the duration of Employee’s employment with\nPraxair at any and all locations, either in the United States or a foreign country and its obligations shall survive\nthe termination of Employee’s employment for any reason.\nSECTION 4. Protective Covenants. Employee agrees that the following covenants are (a) ancillary to the\nother enforceable agreements contained in this Agreement, and (b) reasonable and necessary to protect\nlegitimate Praxair business interests.\n4.1 Restriction on Interfering with Employee Relationships. Employee agrees that for a period of\ntwo (2) years following the end of his or her employment with Praxair, Employee will not interfere with\nPraxair’s business relationship with a Praxair employee, by soliciting or communicating with such an\nemployee to induce or encourage him or her to leave Praxair’s employ (regardless of who first initiates\nthe communication), by helping another person or entity evaluate a Praxair employee as an employment\ncandidate, or by otherwise helping any person or entity hire an employee away from Praxair; unless a\nduly authorized Praxair officer gives Employee written authorization to do so.\n4.2 Restriction on Interfering with Customer Relationships. Employee agree\ns that for a period of two (2) years following the end of his or her employment with Praxair, Employee will not\ninterfere with Praxair’s business relationships with a Covered Customer, by soliciting or communicating\n(regardless of who initiates the communication) with a Covered Customer to induce or encourage the Covered\nCustomer to: (a) stop or reduce doing business with Praxair, or (b) to buy a Conflicting Product or Service;\nunless a duly authorized Praxair officer gives Employee written authorization to do so. The Parties agree this\nrestriction is inherently reasonable.\n4.3 Restriction on Unfair Competition. Employee agrees that for a period of two (2) years following the end\nof his or her employment with Praxair, Employee will not participate in, supervise, or manage (as an employee,\nconsultant, contractor, officer, owner, director, or otherwise) Competing Activities in the Restricted Area.\n4.4 Survival of Restrictions. (a) Before accepting new employment, Employee will advise every future\nemployer of the restrictions in this Agreement. Employee agrees that Praxair may advise a future employer or\nprospective employer of this Agreement and its position on the potential application of this Agreement. (b) The\nAgreement’s post-employment obligations will survive the termination of Employee’s employment with\nPraxair, regardless of the cause of the termination. If Employee violates one of the post-employment\nrestrictions in this Agreement on which there is a specific time limitation, the time period for that restriction\nwill be extended by one day for each day Employee violates it, up to a maximum extension equal to the length\nof time prescribed for the restriction, so as to give Praxair the full benefit of the bargained-for length of\nforbearance. (c) It is the intention of the Parties that, if any court construes any provision or clause of this\nAgreement, or any portion thereof, to be illegal, void or unenforceable, because of duration of such provision,\nthe geographic scope or the subject matter covered thereby, such court shall reduce the duration, area, or matter\nof such provision, and, in its reduced form, such provision shall then be enforceable and shall be enforced. (d)\nIf Employee becomes employed with an Affiliate without signing a new agreement, the Affiliate will step into\nPraxair’s position under this Agreement, and will be entitled to the same protections and enforcement rights as\nPraxair.\n4.5 State Specific Modifications. While employee is a resident of Connecticut, the restrictions on use\nor disclosure of Confidential Information in Section 3 will only apply for three (3) years after the end of\nEmployee’s employment, where information that does not qualify as a trade secret is concerned; however, the\nrestrictions will continue to apply to trade secret information for as long as the information at issue remains\nqualified as a trade secret.\nSECTION 5. Definitions. For purposes of this Agreement, the following terms shall have the meanings\nassigned to them below:\n5.1“Affiliate” means: (a) any corporation 10% or more of the voting stock of which is owned or\ncontrolled by Praxair, Inc., or (b) any corporation owning or controlling 50% or more of the voting stock of\nPraxair, Inc.; or (c) any corporation 25% or more of the voting stock of which is owned or controlled by a\ncorporation owning or controlling 50% or more of the voting stock of Praxair, Inc.; or (d) any unincorporated\nentity, including a partnership, in which Praxair, Inc. has a 25% or more ownership interest, or which has a\n50% or more ownership interest in Praxair, Inc., or in which an entity having a 50% or more ownership interest\nin Praxair, Inc. has a 25% or more ownership interest.\n5.2“CIC Agreement” means the Severance Compensation Agreement, the form of which is attached\nhereto, that will provide Employee with severance and other valuable benefits in the event his or her Praxair\nemployment terminates for certain reasons within two (2) years after a change in control of\nPraxair (as defined in the CIC Agreement).\n5.3“Competing Activities” are any activities or services undertaken on behalf of a competitor (which is\nunderstood to mean any person or entity engaged in the business of providing a Conflicting Product or Service\nin the Restricted Area) that are the same or similar in function or purpose to those Employee performed for\nPraxair in the two (2) year period preceding the end of Employee’s employment with Praxair, or that are\notherwise likely to result in the use or disclosure of Confidential Information. Competing Activities are\nunderstood to exclude: activities on behalf of an independently operated subsidiary, division, or unit of a\ndiversified corporation or similar business that has common ownership with a competitor so long as the\nindependently operated business unit does not involve a Conflicting Product or Service; and, a passive and\nnon-controlling ownership interest in a competitor through ownership of less than 2% of the stock in a publicly\ntraded company.\n5.4“Confidential Information” includes but is not limited to: (a) any technical or business information,\nknow-how or trade secrets, patentable or not, in any form, including but not limited to data; diagrams; business,\nmarketing or sales plans; notes; drawings; models; prototypes; specifications; manuals; memoranda; reports;\ncustomer or vendor information; pricing or cost information; and computer programs, which are furnished to\nEmployee by Praxair or which Employees procures or prepares, alone or with others, in the course of his or her\nemployment; and (b) Subject Developments.\n5.5“Conflicting Product or Service” is a product and/or service that is the same or similar in function\nor purpose to a Praxair product and/or service, such that it would replace or compete with: (a) a product and/or\nservice Praxair provides to its customers; or (b) a product or service that is under development or planning by\nPraxair but not yet provided to customers and regarding which Employee was provided Confidential\nInformation in the course of employment. Conflicting Products or Services do not include a product or service\nof Praxair if Praxair is no longer in the business of providing such product or service to its customers at the\nrelevant time of enforcement.\n5.6\n“Covered Customer” is a Praxair customer (person or entity) Employee had business-related\ncontact or dealings with, or received Confidential Information about, in the two (2) year period preceding the\nend of Employee’s employment with Praxair. References to the end of Employee’s employment in this\nAgreement refer to the end, whether by resignation or termination, and without regard for the reason\nemployment ended.\n5.7\n“Restricted Area” is the United States and the additional areas within Asia, Europe, North\nAmerica, Central America and South America where Praxair marketed (either individually, through\nsubsidiaries, and/or through strategic alliances or partner companies) its products and services at any time\nduring the twelve months preceding the termination of Employee’s employment with Praxair. The Parties agree\nthat, at the time of execution of this Agreement, the Restricted Area includes, but is not necessarily limited to:\nChina, Austria, India, Japan, Korea, Malaysia, Singapore, Taiwan, Thailand, Canada, Belgium,\nBosnia-Herzegovina, Bulgaria, Croatia, Czech Republic, Denmark, France, Germany, Hungary, Italy,\nNetherlands, Norway, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland,\nUkraine, United Kingdom, Argentina, Costa Rica, Mexico, Puerto Rico, United States, Bolivia, Brazil, Chile,\nColumbia, Paraguay, Peru, Uruguay, and Venezuela.\n5.8\n“Subject Developments” means all inventions, discoveries, improvements, developments,\ntechnical information, and know-how, (patentable or not), made, developed, invented, discovered or conceived\nby Employee, alone or with others, in the course or as a result of such employment or tasks assigned Employee\nby Praxair.\n5.9\n“Variable Compensation Plan” means the 2002 Praxair, Inc. Variable Compensation Plan, as\nmay be amended from time to time, or any successor variable compensation plan adopted by Praxair.\nSECTION 6. Notices. While employed by Praxair, and for two (2) years thereafter, Employee will: (a) give\nPraxair written notice at least thirty (30) days prior to going to work for a competitor; (b) provide Praxair with\nsufficient information about his or her new position to enable Praxair to determine if Employee’s services in\nthe new position would likely lead to a violation of this Agreement; and (c) within thirty days of Praxair’s\nrequest, participate in a mediation or in-person conference to discuss and/or resolve any issues raised by\nEmployee’s new position. Employee will be responsible for all consequential damages caused by failure to\ngive Praxair notice as provided in this Section.\nSECTION 7. Remedies. If Employee breaches or threatens to breach this Agreement, Praxair may recover: (a)\nan order of specific performance or declaratory relief; (b) injunctive relief by temporary restraining order,\ntemporary injunction, and/or permanent injunction; (c) damages; (d) attorney's fees and costs incurred in\nobtaining relief; and (e) any other legal or equitable relief or remedy allowed by law. One Thousand Dollars\n($1,000.00) is the agreed amount for the bond to be posted if an injunction is sought by Praxair to enforce the\nrestrictions in this Agreement on Employee. Employee also agrees that if s/he challenges the enforceability of\nthe Protective Covenants in Section 4 of this Agreement, and any such provisions are found to be\nunenforceable, then: (x) Employee will owe Praxair an amount equal to the sum of any and all such payments,\nincluding the value of any benefits provided in kind, that Employee has received under the CIC Agreement and\nEmployee will waive his/her right to any further benefits thereunder; and (y) Employee will owe Praxair an\namount equal to the sum of any and all payments that Employee has received under the Variable Compensation\nPlan during the two (2) year period immediately preceding the end of Employee’s employment with Praxair.\nSECTION 8. Severability, Waiver, Modification, Assignment, Governing Law. (a) It is the intention of the\nParties that if any provision of the Agreement is determined by a court of competent jurisdiction to be void,\nillegal or unenforceable, in whole or in part, all other provisions will remain in full force and effect, as if the\nvoid, illegal, or unenforceable provision is not part of the Agreement. (b) If either Party waives his, her, or its\nright to pursue a claim for the other’s breach of any provision of the Agreement, the waiver will not extinguish\nthat Party’s right to pursue a claim for a subsequent breach. (c) Except where otherwise expressly indicated, the\nAgreement contains the Parties’ entire agreement concerning the matters covered in it; provided that if a\npost-employment restrictive covenant in this Agreement is found unenforceable (despite, and after application\nof, any applicable right to reformation that could add or renew enforceability), then any prior agreement\nbetween the Parties that would provide for a restriction on the same or substantially similar post-employment\nconduct of Employee shall not be considered superseded and shall remain in effect. The Agreement may not be\nwaived, modified, altered or amended except by written agreement of all Parties or by court order. (d) The\nAgreement will inure to the benefit of Praxair’s successors in interest, Affiliates, subsidiaries, parents,\npurchasers, or assignees, and may be enforced by any one or more of same, without need of any further\nauthorization or agreement from Employee. (e) The laws of the State of Connecticut will govern the\nAgreement, the construction of its terms, and the interpretation of the rights and duties of the Parties, regardless\nof any conflicts of law principles of the state. The exclusive venue for any legal action arising from this\nAgreement will be the state or federal courts of Connecticut. Employee stipulates and consents to the state or\nfederal courts of Connecticut’s personal jurisdiction over him or her, and waives his or her right to objection to\na Connecticut court’s jurisdiction.\nSECTION 9. Jury Trial Waiver. The Parties hereby waive their right to jury trial on any legal dispute arising\nfrom or relating to this Agreement, and consent to the submission of all issues of fact and law arising from this\nAgreement to the judge of a court of competent jurisdiction as otherwise provided for\nabove.\nSECTION 10. Effect on Prior Agreements. Except as otherwise provided herein, this Agreement shall\nsupersede the Non Compete and Non Solicitation Agreement between Praxair and the Employee dated as of\nFebruary 24, 1999 that Employee previously entered into as a condition of employment with, or promotion by,\nPraxair. Employee acknowledges that the obligations undertaken in this Agreement are separate from his or her\nobligations to Praxair in other agreements Employee has with Praxair, including but not limited to any\nConfidentiality or Memorandum of Employment Agreement, and that the enforceability of this Agreement has\nno bearing on any other agreements.\nNothing in this Agreement will be construed to create a contract of employment for a definite period of time or\nto prohibit either Party from having the freedom to end the employment relationship at-will, with or without\ncause.\nAGREED to and effective as of April 27, 2010.\nEMPLOYEE:\n/s/ Scott Telesz______________________\n(signature)\nPRAXAIR, INC.\nBy: /s/Stephen F. Angel__________________\nStephen F. Angel\nPrinted Name: Scott Telesz\n.\nIts: Chairman and Chief Executive Officer
+e9b2c9a0186676cb78d90d4453ebe499.pdf	effective_date jurisdiction party term	EX-99.(D)(4) 10 a2227537zex-99_d4.htm EX-99.(D)(4)\nExhibit (d)(4)\nNON-DISCLOSURE AGREEMENT\nThis Agreement is made and entered into as of 16 December 2015 between VTech Holdings Limited of 23/F, Tai Ping Industrial Centre, Block\n1, 57 Ting Kok Road, Tai Po, Hong Kong (“VTech”), and Leapfrog Enterprises, Inc of 6401 Hollis Street, Emeryville, CA94608 (the\n“Leapfrog”).\nThe parties wish to explore a business opportunity of mutual interest (the “Opportunity”) and in connection with this opportunity, Leapfrog\n(“Disclosing Party”) may disclose to the VTech (“Receiving Party”) certain confidential technical and business information (the “Confidential\nInformation”) which the Disclosing Party desires the Receiving Party to treat as confidential. The parties also desire that this Nondisclosure\nAgreement shall supersede and replace the existing Nondisclosure Agreement between the parties dated 1 December 2015.\nVTech and Leapfrog hereby agree as follows:\n1.\nThe term “Confidential Information” shall include, without limitation and regardless of the form of communication, all notes,\nmemoranda, reports, financial results, projections, forecasts, product names, product types, third party contracts, employee information\nand other materials relating to the Opportunity that are marked “CONFIDENTIAL”, regardless of whether such information was\ndisseminated to the Receiving Party prior to or following the signing of this Agreement. However, “Confidential Information” shall not\ninclude any information which the Receiving Party can prove:\n(a)\nhas become generally available to the public through no fault or action of the Receiving Party or any affiliates, agents,\nadvisors, directors, officers or employees of the Receiving Party, its parent, subsidiaries and related companies (collectively\nthe “Related Group”);\n(b)\nwas in the possession of the Related Group prior to the date of this Agreement, provided that such information is not known\nby the Receiving Party to be subject to another confidentiality agreement with or other obligation of secrecy to the Disclosing\nParty;\n(c)\nis or becomes available to the Related Group on a non-confidential basis from any third party (whether such information was\ndisseminated to the Related Group prior to or after the Effective Date of this Agreement), the disclosure of which to the\nRelated Group does not violate any contractual, legal or fiduciary obligation such third party has to the Disclosing Party;\n(d)\nis independently ascertained by the Related Group or is developed by or for the Related Group by their employees or any\nthird party which have not had access either directly or indirectly to the Confidential Information.\n2.\nIt is understood and agreed that all Confidential Information is the property of the Disclosing Party and shall remain the property of the\nDisclosing Party, and it and all copies of it (other than routinely created archival copies during transmission of the\nConfidential Information by electronic means) shall be returned to Disclosing Party on request by Disclosing Party.\n3.\nThe Confidential Information will be kept confidential by the Related Group by using the same degree of care as for its own information\nof like importance, but at least use reasonable care, in safeguarding against disclosure of Confidential Information for a period of one\n(1) year from the date of receipt by the Receiving Party, provided that (a) if Confidential Information is subject to a third party\nconfidentiality obligation on the part of Disclosing Party that extends beyond the one (1) year from the date of receipt by the Receiving\nParty, then the Related Group shall abide by the obligations set forth in this Agreement with respect to such Confidential Information\nfor the term of Disclosing Party’s confidentiality obligation applicable to such Confidential Information, (b) with respect to Confidential\nInformation consisting of Reading product or New Platform Product and their marketing plans, the Related Group shall abide by the\nobligations set forth in this Agreement for a period of two (2) years from the date of receipt by the Receiving Party of such Confidential\nInformation, and (c) with respect to Confidential Information consisting of personally identifiable consumer or employee information,\nsource code or Privileged Materials, the Related Group shall abide by the obligations set forth in this Agreement in perpetuity.\nWithout limiting the foregoing, without the prior written consent of the Disclosing Party, the Related Group shall not:\n(i) distribute or disclose any of the Confidential Information in any manner;\n(ii) permit any third party access to the Confidential Information other than the Related Group; or\n(iii) use the Confidential Information for any purpose other than for assessment of the Opportunity.\nHowever, the Receiving Party may transmit the Confidential Information to their attorneys, accountants, agents, directors and officers\nwho need to know the Confidential Information for the purpose of business with the Disclosing Party and who are informed of the\nconfidential nature of the information and who are bound by confidentiality terms at least as restrictive as the terms of this Agreement.\nThe Receiving Party shall be responsible for any breach of this Agreement by any of such persons.\nTo the extent that any Confidential Information may include materials subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations (“Privileged\nMaterial”), the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual\ndesire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other\napplicable privilege or doctrine shall remain entitled to\nsuch protection under these privileges or doctrines, under this Agreement and under the joint defense doctrine.\nFor a period of one (1) year from the date hereof, the Related Group shall not, directly or indirectly, solicit to employ or entice away or\noffer to enter into any agreement with any person who (i) is, or within the prior six (6) months was, an officer of Disclosing Party or any\nof its affiliates or subsidiaries, or (ii) is, or within the prior six (6) months was, employed in any capacity by Disclosing Party or any of\nits affiliates or subsidiaries and with whom Receiving Party or any affiliates or Representatives of Receiving Party came in contact or\nfirst identified during the process of considering the Potential Transaction; provided, that this section shall not prevent Receiving Party\nor its affiliates from hiring a person identified in clause (i) or (ii) (a “Covered Person”) if such Covered Person: (1) contacts Receiving\nParty or its affiliates or Representatives on the Covered Person’s own initiative without any direct or indirect solicitation by or\nencouragement from Receiving Party or its affiliates or Representatives; or (2) responds to a general solicitation of employment not\nspecifically directed toward Disclosing Party or any of its subsidiaries or particular employees of Disclosing Party or any of its\nsubsidiaries.\n4.\nIn the event that the Related Group receives a request to disclose all or any part of the Confidential Information under the terms of a\nvalid and effective subpoena or order issued by a court of competent jurisdiction or by a governmental body, the Receiving Party agrees\nto timely notify the Disclosing Party such a request so that the Disclosing Party may seek an appropriate protective order and/or waive\ncompliance by the Related Group with the appropriate provisions of this Agreement. If, in the absence of a protective order, the Related\nGroup determines, upon the advice of counsel, that it is required to disclose such information, it will disclose only that portion thereof\nwhich it is compelled to disclose.\n5.\nExcept as required by applicable law, regulation or stock exchange rule, without the prior written consent of the Disclosing Party, the\nReceiving Party will not disclose to any third party the fact that the Confidential Information has been made available to the Receiving\nParty or that the Disclosing Party and the Receiving Party are discussing the Opportunity.\n6.\nThe Disclosing Party shall not be deemed to make any representation or warranty as to the accuracy or completeness of the Confidential\nInformation. The Receiving Party does not receive any right or license, express or implied, under any patents, copyrights, trade secrets,\nor other intellectual property rights of the Disclosing Party under this Agreement.\n7.\nThe Related Group, when requested by the Disclosing Party, shall promptly and at the Disclosing Party’s option either return or destroy\nall written Confidential Information, including all copies, then in the Related Group’s possession; provided, however, that the Receiving\nParty may retain one copy in the confidential, restricted access files of its law or patent department or outside patent counsel for use\nonly in the event a dispute arises between the parties under this Agreement and only in connection with that dispute.\n8.\nIt is understood that this Agreement does not obligate the parties or any of their respective parent, subsidiary, or related companies to\nenter into or continue any further agreement or\nbusiness relationship. Subject to the provisions of this Agreement, nothing in this Agreement nor discussions and/or communications\nbetween the parties will serve to impair the right of either party to independently develop, make, use, procure, and/or market products or\nservices now or in the future that may be competitive with those offered by the other, nor require either party to disclose any planning or\nother information to the other.\n9.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the\nconflicts of law principles thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of any State or\nFederal court sitting in Delaware over any suit, action or proceeding arising out of or relating to this Agreement. Each party hereby\nagrees that service of any process, summons, notice or document by U.S . registered mail addressed to such party shall be effective\nservice of process for any action, suit or proceeding brought against such party in any such court. Each party agrees that a final\njudgment in any suit, action or proceeding brought in such court under this clause 9 shall be conclusive and binding upon such party and\nmay be enforced in any other courts to whose jurisdiction such party is or may be subject, by suit upon judgment.\n10.\nEach of the parties hereto recognizes and acknowledges the competitive value and confidential nature of the Confidential Information\nand that irreparable damage may result to either party if information contained therein or derived therefrom is disclosed to any person\nexcept as herein allowed or is used for any purpose other than the evaluation and negotiation of the Opportunity. Each of the parties\nhereto further understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by either\nparty, and that the non-breaching party shall be entitled to seek equitable relief, including injunctive relief and specific performance, as a\nremedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by any of\nthe parties hereto, but shall be in addition to all of the non-breaching party’s other remedies available at law or in equity.\n11.\nThe Disclosing Party’s waiver of any breach or failure to enforce any of the provisions of this Agreement at any time shall not in any\nway affect, limit or waive the Disclosing Party’s right thereafter to enforce and compel strict compliance with every provision hereof.\n12.\nNo modification of this Agreement shall be effective unless in writing and signed by both parties.\n13.\n13.\nThis Agreement is effective on the date of this Agreement (“Effective Date”) and will remain in force for two (2) years unless\nterminated by either party by giving 30 days written notice. The Receiving Party’s obligations regarding Confidential Information as\nstated in paragraphs 3, 4 and 7 will survive after the expiration or termination of this Agreement.\n14.\nIf any provision of this Agreement is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the\nremaining provisions will not be affected.\n15.\nThis Agreement is not assignable to a third party without the prior written consent of the other party.\n16.\nThis Agreement constitutes the complete agreement between the parties concerning the subject matter hereof and supersedes and\ncancels any and all prior communications and agreements between the parties with respect thereto. In particular, this Agreement\nsupersedes and replaces the existing Nondisclosure Agreement between the parties dated 1 December 2015 such that any information\ndisclosed by a party on or after 11 November 2015 shall be subject to the terms and conditions of this Agreement.\nThe undersigned parties intending to be legally bound by this Agreement have executed this Agreement as of 16 December 2015.\nFor and on behalf of VTech Holdings Limited\nFor and on behalf of Leapfrog Enterprises, Inc.\n/s/ Pang King Fai\n/s/ Robert Lattuppa\nName: PANG KING FAI\nName: ROBERT LATTUPA\nTitle: EXECUTIVE DIRECTOR\nTitle:\nGeneral Counsel	EX-99.(D)(4) 10 a2227537zex-99_d4.htm EX-99.(D)(4) Exhibit (d)(4)\nNON-DISCLOSURE AGREEMENT\nThis Agreement is made and entered into as of 16 December 2015 between VTech Holdings Limited of 23/F, Tai Ping Industrial Centre, Block 1, 57 Ting Kok Road, Tai Po, Hong Kong (“VTech”), and Leapfrog Enterprises, Inc of 6401 Hollis Street, Emeryville, CA94608 (the “Leapfrog”). The parties wish to explore a business opportunity of mutual interest (the “Opportunity”) and in connection with this opportunity, Leapfrog (“Disclosing Party”) may disclose to the VTech (“Receiving Party™) certain confidential technical and business information (the “Confidential Information”) which the Disclosing Party desires the Receiving Party to treat as confidential. The parties also desire that this Nondisclosure Agreement shall supersede and replace the existing Nondisclosure Agreement between the parties dated 1 December 2015. VTech and Leapfrog hereby agree as follows: 1. The term “Confidential Information” shall include, without limitation and regardless of the form of communication, all notes,\nmemoranda, reports, financial results, projections, forecasts, product names, product types, third party contracts, employee information\nand other materials relating to the Opportunity that are marked “CONFIDENTIAL”, regardless of whether such information was\ndisseminated to the Receiving Party prior to or following the signing of this Agreement. However, “Confidential Information” shall not\ninclude any information which the Receiving Party can prove:\n@) has become generally available to the public through no fault or action of the Receiving Party or any affiliates, agents,\nadvisors, directors, officers or employees of the Receiving Party, its parent, subsidiaries and related companies (collectively\nthe “Related Group™);\n(b) was in the possession of the Related Group prior to the date of this Agreement, provided that such information is not known\nby the Receiving Party to be subject to another confidentiality agreement with or other obligation of secrecy to the Disclosing\nParty;\n(0 is or becomes available to the Related Group on a non-confidential basis from any third party (whether such information was\ndisseminated to the Related Group prior to or after the Effective Date of this Agreement), the disclosure of which to the\nRelated Group does not violate any contractual, legal or fiduciary obligation such third party has to the Disclosing Party;\n(d) is independently ascertained by the Related Group or is developed by or for the Related Group by their employees or any\nthird party which have not had access either directly or indirectly to the Confidential Information.\nIt is understood and agreed that all Confidential Information is the property of the Disclosing Party and shall remain the property of the\nDisclosing Party, and it and all copies of it (other than routinely created archival copies during transmission of the\n \nConfidential Information by electronic means) shall be returned to Disclosing Party on request by Disclosing Party.\nThe Confidential Information will be kept confidential by the Related Group by using the same degree of care as for its own information\nof like importance, but at least use reasonable care, in safeguarding against disclosure of Confidential Information for a period of one\n(1) year from the date of receipt by the Receiving Party, provided that (a) if Confidential Information is subject to a third party\nconfidentiality obligation on the part of Disclosing Party that extends beyond the one (1) year from the date of receipt by the Receiving\nParty, then the Related Group shall abide by the obligations set forth in this Agreement with respect to such Confidential Information\nfor the term of Disclosing Party’s confidentiality obligation applicable to such Confidential Information, (b) with respect to Confidential\nInformation consisting of Reading product or New Platform Product and their marketing plans, the Related Group shall abide by the\nobligations set forth in this Agreement for a period of two (2) years from the date of receipt by the Receiving Party of such Confidential\nInformation, and (c) with respect to Confidential Information consisting of personally identifiable consumer or employee information,\nsource code or Privileged Materials, the Related Group shall abide by the obligations set forth in this Agreement in perpetuity.\nWithout limiting the foregoing, without the prior written consent of the Disclosing Party, the Related Group shall not:\n®» distribute or disclose any of the Confidential Information in any manner;\n(ii)  permit any third party access to the Confidential Information other than the Related Group; or\n(iii)  use the Confidential Information for any purpose other than for assessment of the Opportunity.\nHowever, the Receiving Party may transmit the Confidential Information to their attorneys, accountants, agents, directors and officers\nwho need to know the Confidential Information for the purpose of business with the Disclosing Party and who are informed of the\nconfidential nature of the information and who are bound by confidentiality terms at least as restrictive as the terms of this Agreement.\nThe Receiving Party shall be responsible for any breach of this Agreement by any of such persons.\nTo the extent that any Confidential Information may include materials subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations (“Privileged\nMaterial”), the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual\ndesire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other\napplicable privilege or doctrine shall remain entitled to\n \nsuch protection under these privileges or doctrines, under this Agreement and under the joint defense doctrine.\nFor a period of one (1) year from the date hereof, the Related Group shall not, directly or indirectly, solicit to employ or entice away or\noffer to enter into any agreement with any person who (i) is, or within the prior six (6) months was, an officer of Disclosing Party or any\nof its affiliates or subsidiaries, or (ii) is, or within the prior six (6) months was, employed in any capacity by Disclosing Party or any of\nits affiliates or subsidiaries and with whom Receiving Party or any affiliates or Representatives of Receiving Party came in contact or\nfirst identified during the process of considering the Potential Transaction; provided, that this section shall not prevent Receiving Party\nor its affiliates from hiring a person identified in clause (i) or (ii) (a “Covered Person”) if such Covered Person: (1) contacts Receiving\nParty or its affiliates or Representatives on the Covered Person’s own initiative without any direct or indirect solicitation by or\nencouragement from Receiving Party or its affiliates or Representatives; or (2) responds to a general solicitation of employment not\nspecifically directed toward Disclosing Party or any of its subsidiaries or particular employees of Disclosing Party or any of its\nsubsidiaries.\nIn the event that the Related Group receives a request to disclose all or any part of the Confidential Information under the terms of a\nvalid and effective subpoena or order issued by a court of competent jurisdiction or by a governmental body, the Receiving Party agrees\nto timely notify the Disclosing Party such a request so that the Disclosing Party may seek an appropriate protective order and/or waive\ncompliance by the Related Group with the appropriate provisions of this Agreement. If, in the absence of a protective order, the Related\nGroup determines, upon the advice of counsel, that it is required to disclose such information, it will disclose only that portion thereof\nwhich it is compelled to disclose.\nExcept as required by applicable law, regulation or stock exchange rule, without the prior written consent of the Disclosing Party, the\nReceiving Party will not disclose to any third party the fact that the Confidential Information has been made available to the Receiving\nParty or that the Disclosing Party and the Receiving Party are discussing the Opportunity.\nThe Disclosing Party shall not be deemed to make any representation or warranty as to the accuracy or completeness of the Confidential\nInformation. The Receiving Party does not receive any right or license, express or implied, under any patents, copyrights, trade secrets,\nor other intellectual property rights of the Disclosing Party under this Agreement.\nThe Related Group, when requested by the Disclosing Party, shall promptly and at the Disclosing Party’s option either return or destroy\nall written Confidential Information, including all copies, then in the Related Group’s possession; provided, however, that the Receiving\nParty may retain one copy in the confidential, restricted access files of its law or patent department or outside patent counsel for use\nonly in the event a dispute arises between the parties under this Agreement and only in connection with that dispute.\nIt is understood that this Agreement does not obligate the parties or any of their respective parent, subsidiary, or related companies to\nenter into or continue any further agreement or\n \n10. business relationship. Subject to the provisions of this Agreement, nothing in this Agreement nor discussions and/or communications\nbetween the parties will serve to impair the right of either party to independently develop, make, use, procure, and/or market products or\nservices now or in the future that may be competitive with those offered by the other, nor require either party to disclose any planning or\nother information to the other.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the\nconflicts of law principles thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of any State or\nFederal court sitting in Delaware over any suit, action or proceeding arising out of or relating to this Agreement. Each party hereby\nagrees that service of any process, summons, notice or document by U.S. registered mail addressed to such party shall be effective\nservice of process for any action, suit or proceeding brought against such party in any such court. Each party agrees that a final\njudgment in any suit, action or proceeding brought in such court under this clause 9 shall be conclusive and binding upon such party and\nmay be enforced in any other courts to whose jurisdiction such party is or may be subject, by suit upon judgment.\nEach of the parties hereto recognizes and acknowledges the competitive value and confidential nature of the Confidential Information\nand that irreparable damage may result to either party if information contained therein or derived therefrom is disclosed to any person\nexcept as herein allowed or is used for any purpose other than the evaluation and negotiation of the Opportunity. Each of the parties\nhereto further understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by either\nparty, and that the non-breaching party shall be entitled to seek equitable relief, including injunctive relief and specific performance, as a\nremedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by any of\nthe parties hereto, but shall be in addition to all of the non-breaching party’s other remedies available at law or in equity.\n \n11. The Disclosing Party’s waiver of any breach or failure to enforce any of the provisions of this Agreement at any time shall not in any\nway affect, limit or waive the Disclosing Party’s right thereafter to enforce and compel strict compliance with every provision hereof.\n12. No modification of this Agreement shall be effective unless in writing and signed by both parties.\n13. 13. This Agreement is effective on the date of this Agreement (“Effective Date”) and will remain in force for two (2) years unless\nterminated by either party by giving 30 days written notice. The Receiving Party’s obligations regarding Confidential Information as\nstated in paragraphs 3, 4 and 7 will survive after the expiration or termination of this Agreement.\n14. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the\nremaining provisions will not be affected.\n15. This Agreement is not assignable to a third party without the prior written consent of the other party.\n16. This Agreement constitutes the complete agreement between the parties concerning the subject matter hereof and supersedes and\ncancels any and all prior communications and agreements between the parties with respect thereto. In particular, this Agreement\nsupersedes and replaces the existing Nondisclosure Agreement between the parties dated 1 December 2015 such that any information\ndisclosed by a party on or after 11 November 2015 shall be subject to the terms and conditions of this Agreement.\nThe undersigned parties intending to be legally bound by this Agreement have executed this Agreement as of 16 December 2015. For and on behalf of VTech Holdings Limited For and on behalf of Leapfrog Enterprises, Inc.\n/s/ Pang King Fai /s/ Robert Lattuppa\nName: PANG KING FAI Name: ROBERT LATTUPA\nTitle: EXECUTIVE DIRECTOR Title: ~ General Counsel\n	EX-99.(D)(4) 10 a2227537zex-99_d4.htm EX-99.(D)(4)\nExhibit (d)(4)\nNON-DISCLOSURE AGREEMENT\nThis Agreement is made and entered into as of 16 December 2015 between VTech Holdings Limited of 23/F, Tai Ping Industrial Centre, Block\n1, 57 Ting Kok Road, Tai Po, Hong Kong ("VTech"), and Leapfrog Enterprises, Inc of 6401 Hollis Street, Emeryville, CA94608 (the\n"Leapfrog").\nThe parties wish to explore a business opportunity of mutual interest (the "Opportunity") and in connection with this opportunity, Leapfrog\n("Disclosing Party") may disclose to the VTech ("Receiving Party") certain confidential technical and business information (the "Confidential\nInformation") which the Disclosing Party desires the Receiving Party to treat as confidential. The parties also desire that this Nondisclosure\nAgreement shall supersede and replace the existing Nondisclosure Agreement between the parties dated 1 December 2015.\nVTech and Leapfrog hereby agree as follows:\n1.\nThe term "Confidential Information" shall include, without limitation and regardless of the form of communication, all notes,\nmemoranda, reports, financial results, projections, forecasts, product names, product types, third party contracts, employee information\nand other materials relating to the Opportunity that are marked "CONFIDENTIAL", regardless of whether such information was\ndisseminated to the Receiving Party prior to or following the signing of this Agreement. However, "Confidential Information" shall not\ninclude any information which the Receiving Party can prove:\n(a)\nhas become generally available to the public through no fault or action of the Receiving Party or any affiliates, agents,\nadvisors, directors, officers or employees of the Receiving Party, its parent, subsidiaries and related companies (collectively\nthe "Related Group");\n(b)\nwas in the possession of the Related Group prior to the date of this Agreement, provided that such information is not known\nby the Receiving Party to be subject to another confidentiality agreement with or other obligation of secrecy to the Disclosing\nParty;\n(c)\nis or becomes available to the Related Group on a non-confidential basis from any third party (whether such information was\ndisseminated to the Related Group prior to or after the Effective Date of this Agreement), the disclosure of which to the\nRelated Group does not violate any contractual, legal or fiduciary obligation such third party has to the Disclosing Party;\n(d)\nis independently ascertained by the Related Group or is developed by or for the Related Group by their employees or any\nthird party which have not had access either directly or indirectly to the Confidential Information.\n2.\nIt is understood and agreed that all Confidential Information is the property of the Disclosing Party and shall remain the property of the\nDisclosing Party, and it and all copies of it (other than routinely created archival copies during transmission of the\nConfidential Information by electronic means) shall be returned to Disclosing Party on request by Disclosing Party.\n3.\nThe\nConfidential Information will be kept confidential by the Related Group by using the same degree of care as for its own information\nof like importance, but at least use reasonable care, in safeguarding against disclosure of Confidential Information for a period of one\n(1) year from the date of receipt by the Receiving Party, provided that (a) if Confidential Information is subject to a third party\nconfidentiality obligation on the part of Disclosing Party that extends beyond the one (1) year from the date of receipt by the Receiving\nParty, then the Related Group shall abide by the obligations set forth in this Agreement with respect to such Confidential Information\nfor the term of Disclosing Party's confidentiality obligation applicable to such Confidential Information, (b) with respect to Confidential\nInformation consisting of Reading product or New Platform Product and their marketing plans, the Related Group shall abide by the\nobligations set forth in this Agreement for a period of two (2) years from the date of receipt by the Receiving Party of such Confidential\nInformation, and (c) with respect to Confidential Information consisting of personally identifiable consumer or employee information,\nsource code or Privileged Materials, the Related Group shall abide by the obligations set forth in this Agreement in perpetuity.\nWithout limiting the foregoing, without the prior written consent of the Disclosing Party, the Related Group shall not:\n(i)\ndistribute or disclose any of the Confidential Information in any manner;\n(ii)\npermit any third party access to the Confidential Information other than the Related Group; or\n(iii)\nuse the Confidential Information for any purpose other than for assessment of the Opportunity.\nHowever, the Receiving Party may transmit the Confidential Information to their attorneys, accountants, agents, directors and officers\nwho\nneed to know the Confidential Information for the purpose of business with the Disclosing Party and who are informed of the\nconfidential nature of the information and who are bound by confidentiality terms at least as restrictive as the terms of this Agreement.\nThe Receiving Party shall be responsible for any breach of this Agreement by any of such persons.\nTo the extent that any Confidential Information may include materials subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations ("Privileged\nMaterial"), the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual\ndesire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other\napplicable privilege or doctrine shall remain entitled to\nsuch protection under these privileges or doctrines, under this Agreement and under the joint defense doctrine.\nFor a period of one (1) year from the date hereof, the Related Group shall not, directly or indirectly, solicit to employ or entice away or\noffer to enter into any agreement with any person who (i) is, or within the prior six (6) months was, an officer of Disclosing Party or any\nof its affiliates or subsidiaries, or (ii) is, or within the prior six (6) months was, employed in any capacity by Disclosing Party or any of\nits affiliates or subsidiaries and with whom Receiving Party or any affiliates or Representatives of Receiving Party came in contact or\nfirst identified during the process of considering the Potential Transaction; provided, that this section shall not prevent Receiving Party\nor its affiliates from hiring a person identified in clause (i) or (ii) (a "Covered Person") if such Covered Person: (1) contacts Receiving\nParty or its affiliates or Representatives on the Covered Person's own initiative without any direct or indirect solicitation by or\nencouragement from Receiving Party or its affiliates or Representatives; or (2) responds to a general solicitation of employment not\nspecifically directed toward Disclosing Party or any of its subsidiaries or particular employees of Disclosing Party or any of its\nsubsidiaries.\n4.\nIn the event that the Related Group receives a request to disclose all or any part of the Confidential Information under the terms of a\nvalid and effective subpoena or order issued by a court of competent jurisdiction or by a governmental body, the Receiving Party agrees\nto timely notify the Disclosing Party such a request so that the Disclosing Party may seek an appropriate protective order and/or waive\ncompliance by the Related Group with the appropriate provisions of this Agreement. If, in the absence of a protective order, the Related\nGroup\ndetermines,\nupon\nthe\nadvice\nof\ncounsel,\nthat\nit\nis\nrequired\nto\ndisclose\nsuch\ninformation,\nit\nwill\ndisclose\nonly\nthat\nportion\nthereof\nwhich it is compelled to disclose.\n5.\nExcept as required by applicable law, regulation or stock exchange rule, without the prior written consent of the Disclosing Party, the\nReceiving Party will not disclose to any third party the fact that the Confidential Information has been made available to the Receiving\nParty or that the Disclosing Party and the Receiving Party are discussing the Opportunity.\n6.\nThe Disclosing Party shall not be deemed to make any representation or warranty as to the accuracy or completeness of the Confidential\nInformation. The Receiving Party does not receive any right or license, express or implied, under any patents, copyrights, trade secrets,\nor other intellectual property rights of the Disclosing Party under this Agreement.\n7.\nThe Related Group, when requested by the Disclosing Party, shall promptly and at the Disclosing Party's option either return or destroy\nall written Confidential Information, including all copies, then in the Related Group's possession; provided, however, that the Receiving\nParty may retain one copy in the confidential, restricted access files of its law or patent department or outside patent counsel for use\nonly in the event a dispute arises between the parties under this Agreement and only in connection with that dispute.\n8.\nIt is understood that this Agreement does not obligate the parties or any of their respective parent, subsidiary, or related companies to\nenter into or continue any further agreement or\nbusiness relationship. Subject to the provisions of this Agreement, nothing in this Agreement nor discussions and/or communications\nbetween the parties will serve to impair the right of either party to independently develop, make, use, procure, and/or market products or\nservices now or in the future that may be competitive with those offered by the other, nor require either party to disclose any planning or\nother information to the other.\n9.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the\nconflicts of law principles thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of any State or\nFederal court sitting in Delaware over any suit, action or proceeding arising out of or relating to this Agreement. Each party hereby\nagrees that service of any process, summons, notice or document by U.S. registered mail addressed to such party shall be effective\nservice of process for any action, suit or proceeding brought against such party in any such court. Each party agrees that a final\njudgment in any suit, action or proceeding brought in such court under this clause 9 shall be conclusive and binding upon such party and\nmay be enforced in any other courts to whose jurisdiction such party is or may be subject, by suit upon judgment.\n10.\nEach of the parties hereto recognizes and acknowledges the competitive value and confidential nature of the Confidential Information\nand that irreparable damage may result to either party if information contained therein or derived therefrom is disclosed to any person\nexcept as herein allowed or is used for any purpose other than the evaluation and negotiation of the Opportunity. Each of the parties\nhereto further understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by either\nparty, and that the non-breaching party shall be entitled to seek equitable relief, including injunctive relief and specific performance, as a\nremedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by any of\nthe\nparties hereto, but shall be in addition to all of the non-breaching party's other remedies available at law or in equity.\n11.\nThe Disclosing Party's waiver of any breach or failure to enforce any of the provisions of this Agreement at any time shall not in any\nway affect, limit or waive the Disclosing Party's right thereafter to enforce and compel strict compliance with every provision hereof.\n12.\nNo modification of this Agreement shall be effective unless in writing and signed by both parties.\n13.\n13.\nThis Agreement is effective on the date of this Agreement ("Effective Date") and will remain in force for two (2) years unless\nterminated by either party by giving 30 days written notice. The Receiving Party's obligations regarding Confidential Information as\nstated in paragraphs 3, 4 and 7 will survive after the expiration or termination of this Agreement.\n14.\nIf any provision of this Agreement is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the\nremaining provisions will not be affected.\n15.\nThis Agreement is not assignable to a third party without the prior written consent of the other party.\n16.\nThis Agreement constitutes the complete agreement between the parties concerning the subject matter hereof and supersedes and\ncancels any and all prior communications and agreements between the parties with respect thereto. In particular, this Agreement\nsupersedes and replaces the existing Nondisclosure Agreement between the parties dated 1 December 2015 such that any information\ndisclosed by a party on or after 11 November 2015 shall be subject to the terms and conditions of this Agreement.\nThe undersigned parties intending to be legally bound by this Agreement have executed this Agreement as of 16 December 2015.\nFor and on behalf of VTech Holdings Limited\nFor and on behalf of Leapfrog Enterprises, Inc.\n/s/ Pang King Fai\n/s/ Robert Lattuppa\nName: PANG KING FAI\nName: ROBERT LATTUPA\nTitle: EXECUTIVE DIRECTOR\nTitle: General Counsel	EX-99.(D)(4) 10 a2227537zex-99_d4.htm EX-99.(D)(4)\nExhibit (d)(4)\nNON-DISCLOSURE AGREEMENT\nThis Agreement is made and entered into as of 16 December 2015 between VTech Holdings Limited of 23/F, Tai Ping Industrial Centre, Block\n1, 57 Ting Kok Road, Tai Po, Hong Kong (“VTech”), and Leapfrog Enterprises, Inc of 6401 Hollis Street, Emeryville, CA94608 (the\n“Leapfrog”).\nThe parties wish to explore a business opportunity of mutual interest (the “Opportunity”) and in connection with this opportunity, Leapfrog\n(“Disclosing Party”) may disclose to the VTech (“Receiving Party”) certain confidential technical and business information (the “Confidential\nInformation”) which the Disclosing Party desires the Receiving Party to treat as confidential. The parties also desire that this Nondisclosure\nAgreement shall supersede and replace the existing Nondisclosure Agreement between the parties dated 1 December 2015.\nVTech and Leapfrog hereby agree as follows:\n1.\nThe term “Confidential Information” shall include, without limitation and regardless of the form of communication, all notes,\nmemoranda, reports, financial results, projections, forecasts, product names, product types, third party contracts, employee information\nand other materials relating to the Opportunity that are marked “CONFIDENTIAL”, regardless of whether such information was\ndisseminated to the Receiving Party prior to or following the signing of this Agreement. However, “Confidential Information” shall not\ninclude any information which the Receiving Party can prove:\n(a)\nhas become generally available to the public through no fault or action of the Receiving Party or any affiliates, agents,\nadvisors, directors, officers or employees of the Receiving Party, its parent, subsidiaries and related companies (collectively\nthe “Related Group”);\n(b)\nwas in the possession of the Related Group prior to the date of this Agreement, provided that such information is not known\nby the Receiving Party to be subject to another confidentiality agreement with or other obligation of secrecy to the Disclosing\nParty;\n(c)\nis or becomes available to the Related Group on a non-confidential basis from any third party (whether such information was\ndisseminated to the Related Group prior to or after the Effective Date of this Agreement), the disclosure of which to the\nRelated Group does not violate any contractual, legal or fiduciary obligation such third party has to the Disclosing Party;\n(d)\nis independently ascertained by the Related Group or is developed by or for the Related Group by their employees or any\nthird party which have not had access either directly or indirectly to the Confidential Information.\n2.\nIt is understood and agreed that all Confidential Information is the property of the Disclosing Party and shall remain the property of the\nDisclosing Party, and it and all copies of it (other than routinely created archival copies during transmission of the\nConfidential Information by electronic means) shall be returned to Disclosing Party on request by Disclosing Party.\n3.\nThe Confidential Information will be kept confidential by the Related Group by using the same degree of care as for its own information\nof like importance, but at least use reasonable care, in safeguarding against disclosure of Confidential Information for a period of one\n(1) year from the date of receipt by the Receiving Party, provided that (a) if Confidential Information is subject to a third party\nconfidentiality obligation on the part of Disclosing Party that extends beyond the one (1) year from the date of receipt by the Receiving\nParty, then the Related Group shall abide by the obligations set forth in this Agreement with respect to such Confidential Information\nfor the term of Disclosing Party’s confidentiality obligation applicable to such Confidential Information, (b) with respect to Confidential\nInformation consisting of Reading product or New Platform Product and their marketing plans, the Related Group shall abide by the\nobligations set forth in this Agreement for a period of two (2) years from the date of receipt by the Receiving Party of such Confidential\nInformation, and (c) with respect to Confidential Information consisting of personally identifiable consumer or employee information,\nsource code or Privileged Materials, the Related Group shall abide by the obligations set forth in this Agreement in perpetuity.\nWithout limiting the foregoing, without the prior written consent of the Disclosing Party, the Related Group shall not:\n(i) distribute or disclose any of the Confidential Information in any manner;\n(ii) permit any third party access to the Confidential Information other than the Related Group; or\n(iii) use the Confidential Information for any purpose other than for assessment of the Opportunity.\nHowever, the Receiving Party may transmit the Confidential Information to their attorneys, accountants, agents, directors and officers\nwho need to know the Confidential Information for the purpose of business with the Disclosing Party and who are informed of the\nconfidential nature of the information and who are bound by confidentiality terms at least as restrictive as the terms of this Agreement.\nThe Receiving Party shall be responsible for any breach of this Agreement by any of such persons.\nTo the extent that any Confidential Information may include materials subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations (“Privileged\nMaterial”), the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual\ndesire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other\napplicable privilege or doctrine shall remain entitled to\nsuch protection under these privileges or doctrines, under this Agreement and under the joint defense doctrine.\nFor a period of one (1) year from the date hereof, the Related Group shall not, directly or indirectly, solicit to employ or entice away or\noffer to enter into any agreement with any person who (i) is, or within the prior six (6) months was, an officer of Disclosing Party or any\nof its affiliates or subsidiaries, or (ii) is, or within the prior six (6) months was, employed in any capacity by Disclosing Party or any of\nits affiliates or subsidiaries and with whom Receiving Party or any affiliates or Representatives of Receiving Party came in contact or\nfirst identified during the process of considering the Potential Transaction; provided, that this section shall not prevent Receiving Party\nor its affiliates from hiring a person identified in clause (i) or (ii) (a “Covered Person”) if such Covered Person: (1) contacts Receiving\nParty or its affiliates or Representatives on the Covered Person’s own initiative without any direct or indirect solicitation by or\nencouragement from Receiving Party or its affiliates or Representatives; or (2) responds to a general solicitation of employment not\nspecifically directed toward Disclosing Party or any of its subsidiaries or particular employees of Disclosing Party or any of its\nsubsidiaries.\n4.\nIn the event that the Related Group receives a request to disclose all or any part of the Confidential Information under the terms of a\nvalid and effective subpoena or order issued by a court of competent jurisdiction or by a governmental body, the Receiving Party agrees\nto timely notify the Disclosing Party such a request so that the Disclosing Party may seek an appropriate protective order and/or waive\ncompliance by the Related Group with the appropriate provisions of this Agreement. If, in the absence of a protective order, the Related\nGroup determines, upon the advice of counsel, that it is required to disclose such information, it will disclose only that portion thereof\nwhich it is compelled to disclose.\n5.\nExcept as required by applicable law, regulation or stock exchange rule, without the prior written consent of the Disclosing Party, the\nReceiving Party will not disclose to any third party the fact that the Confidential Information has been made available to the Receiving\nParty or that the Disclosing Party and the Receiving Party are discussing the Opportunity.\n6.\nThe Disclosing Party shall not be deemed to make any representation or warranty as to the accuracy or completeness of the Confidential\nInformation. The Receiving Party does not receive any right or license, express or implied, under any patents, copyrights, trade secrets,\nor other intellectual property rights of the Disclosing Party under this Agreement.\n7.\nThe Related Group, when requested by the Disclosing Party, shall promptly and at the Disclosing Party’s option either return or destroy\nall written Confidential Information, including all copies, then in the Related Group’s possession; provided, however, that the Receiving\nParty may retain one copy in the confidential, restricted access files of its law or patent department or outside patent counsel for use\nonly in the event a dispute arises between the parties under this Agreement and only in connection with that dispute.\n8.\nIt is understood that this Agreement does not obligate the parties or any of their respective parent, subsidiary, or related companies to\nenter into or continue any further agreement or\nbusiness relationship. Subject to the provisions of this Agreement, nothing in this Agreement nor discussions and/or communications\nbetween the parties will serve to impair the right of either party to independently develop, make, use, procure, and/or market products or\nservices now or in the future that may be competitive with those offered by the other, nor require either party to disclose any planning or\nother information to the other.\n9.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the\nconflicts of law principles thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of any State or\nFederal court sitting in Delaware over any suit, action or proceeding arising out of or relating to this Agreement. Each party hereby\nagrees that service of any process, summons, notice or document by U.S . registered mail addressed to such party shall be effective\nservice of process for any action, suit or proceeding brought against such party in any such court. Each party agrees that a final\njudgment in any suit, action or proceeding brought in such court under this clause 9 shall be conclusive and binding upon such party and\nmay be enforced in any other courts to whose jurisdiction such party is or may be subject, by suit upon judgment.\n10.\nEach of the parties hereto recognizes and acknowledges the competitive value and confidential nature of the Confidential Information\nand that irreparable damage may result to either party if information contained therein or derived therefrom is disclosed to any person\nexcept as herein allowed or is used for any purpose other than the evaluation and negotiation of the Opportunity. Each of the parties\nhereto further understands and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by either\nparty, and that the non-breaching party shall be entitled to seek equitable relief, including injunctive relief and specific performance, as a\nremedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by any of\nthe parties hereto, but shall be in addition to all of the non-breaching party’s other remedies available at law or in equity.\n11.\nThe Disclosing Party’s waiver of any breach or failure to enforce any of the provisions of this Agreement at any time shall not in any\nway affect, limit or waive the Disclosing Party’s right thereafter to enforce and compel strict compliance with every provision hereof.\n12.\nNo modification of this Agreement shall be effective unless in writing and signed by both parties.\n13.\n13.\nThis Agreement is effective on the date of this Agreement (“Effective Date”) and will remain in force for two (2) years unless\nterminated by either party by giving 30 days written notice. The Receiving Party’s obligations regarding Confidential Information as\nstated in paragraphs 3, 4 and 7 will survive after the expiration or termination of this Agreement.\n14.\nIf any provision of this Agreement is held to be illegal, invalid or unenforceable, the legality, validity and enforceability of the\nremaining provisions will not be affected.\n15.\nThis Agreement is not assignable to a third party without the prior written consent of the other party.\n16.\nThis Agreement constitutes the complete agreement between the parties concerning the subject matter hereof and supersedes and\ncancels any and all prior communications and agreements between the parties with respect thereto. In particular, this Agreement\nsupersedes and replaces the existing Nondisclosure Agreement between the parties dated 1 December 2015 such that any information\ndisclosed by a party on or after 11 November 2015 shall be subject to the terms and conditions of this Agreement.\nThe undersigned parties intending to be legally bound by this Agreement have executed this Agreement as of 16 December 2015.\nFor and on behalf of VTech Holdings Limited\nFor and on behalf of Leapfrog Enterprises, Inc.\n/s/ Pang King Fai\n/s/ Robert Lattuppa\nName: PANG KING FAI\nName: ROBERT LATTUPA\nTitle: EXECUTIVE DIRECTOR\nTitle:\nGeneral Counsel
+ea4700a99c92f0459c752c2177ebee56.pdf	effective_date jurisdiction party	Exhibit 10.46\nCONFIDENTIAL DRAFT\nU.S. EMPLOYEE AGREEMENT\nThis Agreement (the “Agreement”) is made between Red Hat, Inc., a Delaware corporation (collectively with each of its subsidiaries, the “Company”), and Eric R. Shander (“Employee”), a “U .S. employee” (as shown on the\nCompany’s payroll records on the Effective Date (as defined below)) who has been selected by the Company’s Chief People Officer for participation in the Red Hat, Inc. Designated U.S. Manager Severance Plan (the “Severance Plan”)\nas of November 24, 2015 (the “Effective Date”).\nIn consideration of the Company’s employment of Employee as the Company’s Vice President, Finance, the compensation and benefits package provided to Employee by the Company, and entitlement to benefits under the Severance\nPlan, and in satisfaction of a condition of Employee’s participation in such Severance Plan, Employee agrees that upon the Effective Date he shall be bound by all of the restrictions set forth herein.\nIn consideration of the foregoing and intending to be legally bound, the parties agree as follows:\n1.\nAcknowledgment.\nEmployee acknowledges that Employee’s undertakings and commitments and the restrictions set forth in this Agreement, including in particular the non-compete and non-solicitation undertaking contained herein, are a material\ninducement for the Company to employ Employee, to provide him with the above-referenced pay, and a requirement for Employee to become eligible as a participant in the Severance Plan. Employee acknowledges that he has received a\ncopy of the Severance Plan and has had the opportunity to discuss its terms with the Company. Without regard to whether Employee ultimately receives benefits under the Severance Plan, Employee undertakes to fully comply with the\nprovisions hereof and agrees that a breach of these provisions will cause significant financial and other damages to the Company, including loss of strategic advantages, much of which is difficult to quantify by reference solely to money\ndamages.\n2.\nNon-Solicitation.\n(a) During Employee’s employment with the Company and for a period of twelve (12) months thereafter, Employee shall not, for himself or any entity, nor shall Employee assist or provide information to a third party that would assist\nthat third party to: (i) solicit or cause to solicit for the purposes of diverting, taking away or disrupting, or of attempting to divert, take away or disrupt, the Company’s relationship or business with any person or entity who, at any time\nduring the six (6) months preceding such action was or is a client, customer or business partner of the Company, or prospective client, customer or business partner of the Company; (ii) solicit, induce or attempt to induce, any employee or\nindependent contractor of the Company to terminate his employment or engagement with the Company; or (iii) hire, recruit or engage as an employee or independent contractor, or attempt to hire, recruit or engage as an employee or\nindependent contractor, any person who was employed or otherwise engaged by the Company within six (6) months prior to such action. For purposes of this provision, a “prospective client, customer or business partner” shall mean any\nperson or entity (x) with whom the Company has had discussions as of Employee’s termination of employment with the Company, (y) to whom the Company or made a proposal to do business about which the Employee was aware during\nhis employment, or (z) that has executed a non-disclosure agreement with the Company, provided Employee was aware of such fact during this employment with the Company.\n(b) If Employee violates any of the provisions of this Section 2, Employee shall continue to be bound by the restrictions set forth in this Section 2 for an additional period equal to the aggregate period of such violation.\n3.\nNon-Competition.\n(a) Definitions. For purposes of this Agreement, the following terms shall have the following meanings:\n(1) “Restricted Business” is defined as a software or software-related business that competes with the Company. “ Restricted Business” includes, but is not limited to, the following companies: Amazon.com, Inc., CA, Inc. (Computer\nAssociates), Canonical Ltd., Citrix Systems, Inc., EMC Corporation, Google, Inc., Hewlett Packard (HP) Corporation, International Business Machines (IBM) Corporation, Microsoft Corporation, Mirantis, Inc., Oracle Corporation,\nPivotal Software, Inc., salesforce.com, Inc. and VMware, Inc.\n(2) “Restricted Territory” is defined as: Anywhere within the United States where the Company has clients and/or has marketed its products or services at the time Employee leaves employment with the Company.\n(b) Non-compete Period.\n(1) During Employee’s employment with the Company and for a period of twelve (12) months thereafter, within the Restricted Territory, Employee shall not, whether as an owner, director, employee, independent contractor or otherwise,\nprovide to a Restricted Business any services similar to or related to the services Employee performed for or with the Company if they are related to any product or service line that competes with any Company product or service line\nexisting or planned as of Employee’s termination from employment with the Company: (i) about which Employee had access to operational, financial, or strategic information that is confidential (as defined below) while employed with\nthe Company; or (ii) for which Employee was responsible and/or with which Employee was involved; or (iii) about which Employee was privy to confidential, non-public, and/or proprietary information during Employee’s employment\nwith the Company.\n(2) At the request of Employee, following a confidential consultation, the Company will provide its good faith view as to whether a proposed relationship Employee may wish to pursue appears likely to violate this Section. No view by\nthe Company that a violation is unlikely shall prevent the Company from pursuing Employee under this provision if the relationship described by Employee changes, the product or service line at the Restricted Business becomes subject\nto this Section, or the information provided by Employee to the Company was incomplete or incorrect.\n(c) Employee will be treated as an owner of a Restricted Business if he owns an equity interest in the business (except for passive ownership, directly or indirectly, of not more than 1% of the outstanding stock of a publicly-held company\nand of not more than 5% of the outstanding stock of a private company).\n(d) If Employee violates any of the provisions of this Section 3, Employee shall continue to be bound by the restrictions set forth in this Section 3 for an additional period equal to the aggregate period of such violation.\n4.\nConfidential Information.\n(a) Confidential Information. Employee agrees at all times, both during and after the term of his employment with the Company, to hold in the strictest confidence, and not to use (except for the benefit of the Company at the Company’s\ndirection) or disclose (without the written authorization of the General Counsel or other authorized Company officer), regardless of when disclosed to Employee, any and all technical data, trade secrets, know-how or other confidential or\nproprietary information of the Company, including without limitation any and all information related to the products, product plans, technologies, inventions, mask works, ideas,\n2\nprocesses, formulas, source and object codes, computer programs, data bases, other works of authorship, improvements, discoveries, developments, designs and techniques, research, developmental or experimental work, customer and\nbusiness partner lists, employee lists, structure, business plans, sales or marketing plans or results, markets, prices and costs, financial information, or other subject matter pertaining to any business of the Company or any of its licensors,\ncustomers, business partners, consultants or customers (collectively, “Confidential Information”). Employee understands that Confidential Information further includes, but is not limited to, information pertaining to any aspect of the\nCompany’s business which is either information not known (or known as a result of a wrongful act of Employee or of others who were under confidentiality obligations as to the item or items involved) by actual or potential competitors of\nthe Company or other third parties not under confidentiality obligations to the Company, or is otherwise proprietary information of the Company or its customers or suppliers, whether of a technical nature or otherwise. Employee further\nunderstands that Confidential Information does not include any of the foregoing items which is or has become publicly and widely known and made generally available through no wrongful act of Employee or of others who were under\nconfidentiality obligations as to the item or items involved. Furthermore, the following shall not be a violation of this Agreement: (i) disclosure or use of Confidential Information that in good faith is determined to be required or\nappropriate to advance the best interests of the Company in connection with Employee’s work as an employee of the Company and is not inconsistent with any lawful request or direction that Employee may receive from the Company’s\nBoard of Directors (the “Board”) or a committee or other representative of the Board or any authorized Company officer, (ii) disclosure of Confidential Information when required by a court of law, by any governmental agency having\nsupervisory authority over the business of the Company or by any administrative or legislative body (including a committee thereof) with apparent jurisdiction to order Employee to divulge, disclose or make accessible such information;\nprovided, however, that to the extent permitted by law, prior to any such disclosure Employee must notify the Company’s General Counsel of such requirement sufficiently in advance to allow the Company a reasonable opportunity to\ntake any action that it determines appropriate to protect such Confidential Information and Employee agrees to cooperate with the Company in good faith in taking any such action, or (iii) disclosure of Confidential Information to\nEmployee’s spouse, attorney and/or personal tax and financial advisors as reasonably necessary or appropriate to advance Employee’s tax, financial and other personal planning (each an “Exempt Person”); provided, however, that prior\nto any disclosure of Confidential Information to an Exempt Person Employee will inform such Exempt Person of Employee’s obligations hereunder and of their obligation to protect such Confidential Information to the same extent and\nEmployee understands that any disclosure or use of any Confidential Information by an Exempt Person shall be deemed to be a breach of this Section 4 by Employee.\n(b) Former Employer Information. Employee agrees that he does not possess, has not brought, and will not bring to the Company, nor use or disclose in the course of the performance of his duties at the Company, any inventions, technical\ndata, trade secrets, know-how or other confidential or proprietary information of any former employer or third party without the written authorization of such employer or third party. Employee represents that his performance of all terms\nof this Agreement or any other agreement related to his employment with the Company has not breached and will not breach any agreement to keep in confidence the inventions, technical data, trade secrets, know-how or other\nconfidential or proprietary information of any former employer or third party acquired by Employee prior or subsequent to the commencement of his employment with the Company.\n(c) Third Party Information. Employee recognizes that the Company has received and in the future will receive confidential or proprietary information from third parties subject to a duty on the Company’s part to maintain the\nconfidentiality of such information and/or to use it only for certain limited purposes (“Third Party Information”). Employee agrees to hold all such Third Party Information in the strictest confidence and not to disclose it to any person or\nentity (other than Company personnel who need to know such information in connection with their work for the Company) or to use it except as necessary in carrying out Employee’s work for the Company consistent with the Company’s\nagreement with such third party.\n3\n5.\nAssignment of Inventions and Original Works of Authorship\n(a) Inventions and Original Works Assigned to the Company. During the term of Employee’s employment with the Company, Employee will promptly disclose to the Company, will hold in trust for the sole right and benefit of the\nCompany, and does hereby assign to the Company all rights to and interests in inventions, developments, discoveries, techniques, modifications, improvements, technology, trade secrets, computer programs, mask works, know-how,\nprocesses, concepts, methods, systems, specifications, algorithms, designs, formulas, original works of authorship, or any other intellectual property rights whatsoever, whether or not patentable or registrable under copyright, trademark or\nsimilar laws or subject to analogous protection (“Inventions”) that Employee may, during employment with the Company, solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to\npractice, (a) that relate to the Company’s past, present or demonstrated or reasonably foreseeable future business or research, whether or not developed during normal working hours, or (b) that are developed with the use or aid of any\nCompany equipment, supplies or facilities, or (c) that use or are based on or developed from any Confidential Information of the Company or Third Party Information, or (d) that result from any work, service or duty Employee performs\nwith the Company (collectively, the “Assigned Inventions”). Employee agrees and represents that any Invention that would fall within the definition of Assigned Inventions but for having been conceived or developed or reduced to\npractice, or caused to be conceived or developed or reduced to practice during employment but before the Effective Date shall also be hereby assigned and treated as an Assigned Invention. Any assignment hereunder includes all rights of\npaternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral” or the like. Employee further acknowledges that all Assigned Inventions are “works\nmade for hire” (to the greatest extent permitted by applicable law) and are compensated by his salary\nEmployee agrees not to allow any Invention that was conceived, developed, made or reduced to practice prior to his employment with the Company, belongs solely to Employee or belongs to Employee jointly with another, and relates in\nany way to any of the Company’s proposed businesses and products (a “Prior Invention”) to be incorporated into any product, process, technology or machine of the Company. If in the course of Employee’s employment with the\nCompany, Employee incorporates (or has previously incorporated) into a Company product, process, technology or machine a Prior Invention, the Company is hereby granted and shall have a nonexclusive, royalty-free, irrevocable,\nperpetual, worldwide license (with the right to sublicense) to make, have made, modify, make derivative works of, use, sell, and otherwise distribute or exploit such Prior Invention as art of or in connection with such product, process,\ntechnology or machine. Notwithstanding the foregoing, Employee understands that this Agreement will not be deemed to require assignment of any Invention whose assignment to the Company pursuant to this Agreement would be\nexpressly prohibited by a specifically applicable state law, regulation, rule or public policy of the State of North Carolina or the law of the jurisdiction in which Employee is primarily employed.\n(b) Maintenance of Records. Employee agrees to keep and maintain adequate and current written records of all Assigned Inventions during the term of his employment with the Company, in the format specified by the Company. The\nrecords will be available to and remain the sole property of the Company at all times. Employee agrees not to remove such records from the Company’s place of business except as expressly permitted in writing by an officer of the\nCompany. Employee agrees to provide all such records (including any copies thereof) to the Company at the time of termination of his employment with the Company.\n(c) Enforcement of Intellectual Property Rights. Employee agrees that, whenever requested by the Company, he shall assist the Company or its designee to secure the Company’s, or its designee’s, rights in the Assigned Inventions and\nany copyrights, patents, trademarks, mask work rights, moral rights, or other intellectual property rights relating thereto in any and all countries, including: the disclosure to the Company or its designee of all pertinent information and data\nwith respect thereto; the execution of all applications, specifications, oaths, assignments, recordations, and all other instruments, and the taking of all such other acts (including appearances as a witness), which the Company or its designee\nshall deem necessary in order to apply for, perfect, obtain,\n4\nmaintain, review, restore, enforce, defend and transfer such rights, or if not transferable, waive such rights, and in order to assign and convey to the Company or its designee, and any successors, assigns and nominees thereof such rights;\nand to further evidence, record and perfect the sole and exclusive rights, title and interest in and to such Assigned Inventions, and any copyrights, patents, trademarks, mask work rights, moral rights or other intellectual property rights\nrelating thereto. Employee further agrees that his obligation to execute or cause to be executed, when it is in his power to do so, any such instruments or papers or to take such other acts shall continue after the termination of this\nAgreement until the expiration of the last such intellectual property right to expire in any country of the world. If the Company or its designee is unable because of Employee’s mental or physical incapacity or unavailability or for any\nother reason to secure Employee’s signature to apply for or to pursue any application for any United States or foreign patents, copyright, mask works or other registrations covering Assigned Inventions, then Employee hereby irrevocably\ndesignates and appoints the Company and its duly authorized officers and agents as Employee’s agent and attorney in fact, to act for and in his behalf and stead to execute and file any such applications and any documents and to do all\nother lawfully permitted acts to further the application for, prosecution, issuance, maintenance or transfer of letters patent, copyright or other registrations thereon with the same legal force and effect as if originally executed by Employee.\nEmployee hereby waives and irrevocably quitclaims to the Company or its designee any and all claims, of any nature whatsoever, which Employee now or hereafter has for infringement of any and all proprietary rights assigned to the\nCompany or such designee pursuant to the terms of this Agreement.\n6.\nNon-Disparagement.\nEmployee understands and agrees that, as a condition of his employment by the Company and eligibility to participate in the Severance Plan, he agrees not to make any false, disparaging or derogatory statements to any media outlet,\nindustry group, financial institution or current or former employee, consultant, client or customer of the Company regarding the Company or any of its directors, officers, employees, agents or representatives or about the Company’s\nbusiness affairs or financial condition; provided, however, that nothing herein shall prevent Employee from making truthful disclosures to any governmental entity in response to valid legal process or in any litigation or arbitration.\n7.\nMiscellaneous.\n(a) Other Remedies. The restrictions contained in this Agreement are necessary for the protection of the legitimate business interests of the Company, including the confidential business information and goodwill of the Company and are\nconsidered by Employee to be reasonable for such purpose. If Employee violates the provisions of Sections 2 or 3, Employee agrees that any breach of this Agreement is likely to cause the Company substantial and irrevocable damage\nthat is difficult to measure and that money damages will be insufficient. Therefore, in the event of any such breach or threatened breach, Employee agrees that the Company, in addition to such other remedies that may be available\n(including in this Section 7(a)), shall have the right to obtain an injunction from a court restraining such a breach or threatened breach and the right to specific performance of the provisions of this Agreement, in addition to and cumulative\nwith any other remedy that the Company may have at law or in equity. Employee hereby waives the adequacy of a remedy at law as a defense to any such equitable relief. Employee acknowledges that the Company may cease providing\nany or all benefits under the Severance Plan. Employee acknowledges and agrees that this provision is not a provision for liquidated damages.\n(b) Disclosure of this Agreement. Employee and Company each hereby authorizes the other to notify customers of the Company, any of Employee’s future employers, potential employers or service recipients, and, for a reasonable\nbusiness purpose, others, of the terms and existence of this Agreement and Employee’s continuing obligations to the Company thereunder.\n(c) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and assigns, including any entity with which, or into which, the Company may be merged or that\nmay succeed to the Company’s assets or business; provided, however, that the obligations\n5\nof Employee are personal and shall not be assigned by him. Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary or affiliate thereof to whose employ Employee\nmay be transferred without the necessity that this Agreement be re-signed at the time of such transfer.\n(d) Interpretation. If any restriction set forth in Section 2 or Section 3 is found by any court of competent jurisdiction to be unenforceable for any reason, including, but not limited to, because it extends for too long a period of time or over\ntoo great a range of activities or in too broad a geographic area, it shall be interpreted to apply to the maximum extent possible, such as only over the maximum period of time, range of activities or geographic area as to which it may be\nenforceable.\n(e) Severability. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.\n(f) Survival. This Agreement shall continue in full force and effect following the cessation of Employee’s employment with the Company for any reason.\n(g) Waivers. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right. A waiver or consent given by the Company on any one occasion is effective only in that\ninstance and will not be construed as a bar to or waiver of any right on any other occasion.\n(h) Governing Law. This Agreement has been entered into in the State of North Carolina and will be governed by and construed in accordance with the laws of the North Carolina (without reference to the principles relating to the\nconflicts of laws provisions thereof). Any action, suit, or other legal proceeding that is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of competent\njurisdiction within the State of North Carolina (or, if appropriate, a federal court located within the State of North Carolina), and the Company and Employee each consents to the exclusive jurisdiction of such a court. The Company and\nEmployee each hereby irrevocably waive any right to a trial by jury in any action, suit or other legal proceeding arising under or relating to any provision of this Agreement or to any claim of forum non conveniens.\n(i) Effect on Other Agreements; Amendment. The terms of the Severance Plan and this Agreement supersede all severance provisions of any agreement executed between Employee and the Company including, but not limited to, offer\nletters, individual employment agreements, and any other policy or program of the Company, with the exception of any policy or program of the Company applicable to Employee that provides special cash benefits following a\nchange-in-control (as defined in such policy or program) of the Company. Except to the extent provided in the preceding sentence, this Agreement does not supersede any prior written Agreement between Employee and the Company\nrelating to the subject matter of this Agreement. Such previously executed agreements are not expressly modified hereby and shall remain in full force and effect. This Agreement may not be modified, changed or discharged in whole or in\npart, except by an agreement in writing signed by Employee and the Company. Employee agrees that any change or changes in his duties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of\nthis Agreement.\n(j) Termination Certificate. Employee agrees to execute the Termination Certificate attached as Exhibit A upon termination.\n(k) Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement.\n6\nEMPLOYEE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND THE SEVERANCE PLAN AND UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nSignatures on Page Following\n7\nRED HAT, INC.\nBy:\n/s/ DeLisa Alexander\nName:\nDeLisa Alexander\nTitle:\nEVP and Chief People Officer\nDate:\n11/24/2015\nERIC R. SHANDER\n/s/ Eric R. Shander\nDate:\n11/24/2015\nSignature Page for U.S. Employee Agreement (NC) – Eric R. Shander	Exhibit 10.46\nCONFIDENTIAL DRAFT\nU.S. EMPLOYEE AGREEMENT\nThis Agreement (the "Agreement") is made between Red Hat, Inc, a Delaware corporation (collectively with each of its subsidiaries, the "Company"), and Eric R. Shander ("Employee"), a "U.S. employee" (as shown on the\nCompany’s payroll records on the Effective Date (as defined below)) who has been selected by the Company's Chief People Officer for participation in the Red Hat, Inc. Designated U.S. Manager Severance Plan (the ”Severance Plan")\nas of November 24, 2015 (the “Effective Date”).\nIn consideration of the Company’s employment of Employee as the Company’s Vice President, Finance, the compensation and benefits package provided to Employee by the Company, and entitlement to benefits under the Severance\nPlan, and in satisfaction of a condition of Employee's participation in such Severance Plan, Employee agrees that upon the Effective Date he shall be bound by all of the restrictions set forth herein.\nIn consideration of the foregoing and intending to be legally bound, the parties agree as follows:\n1. Acknowledgment.\nEmployee acknowledges that Employee’s undermkings and commitments and the restrictions set forth in this Agreement, including in particular the non-compete and non- solicitation undertaking conmined herein, are a material\ninducement for the Company to employ Employee, to provide him with the above-referenced pay, and a requirement for Employee to become eligible as a participant in the Severance Plan Employee acknowledges that he has received a\ncopy of the Severance Plan and has had the opportunity to discuss its terms with the Company. Without regard to whether Employee ultimately receives benefits under the Severance Plan, Employee undertakes to frilly comply with the\nprovisions hereof and agrees that a breach of these provisions will cause significant financial and other damages to the Company, including loss of strategic advantages, much of which is difficult to quantify by reference solely to money\ndamages.\n2. Non-Solicitation\n(a) During Employee's employment with the Company and for a period of twelve (12) months thereafter, Employee shall not, for himself or any entity, nor shall Employee assist or provide information to a third party that would assist\nthat third party to: (i) solicit or cause to solicit for the purposes of diverting, mking away or disrupting, or of attempting to divert, take away or disrupt, the Company's relationship or business with any person or entity who, at any time\nduring the six (6) months preceding such action was or is a client, customer or business partner of the Company, or prospective client, customer or business partner of the Company; (ii) solicit, induce or attempt to induce, any employee or\nindependent contractor of the Company to terminate his employment or engagement with the Company; or (iii) hire, recruit or engage as an employee or independent contractor, or attempt to hire, recruit or engage as an employee or\nindependent contractor, any person who was employed or otherwise engaged by the Company within six (6) months prior to such action. For purposes of this provision, a "prospective client, customer or business partner" shall mean any\nperson or entity (x) with whom the Company has had discussions as of Employee’s termination of employment with the Company, (y) to whom the Company or made a proposal to do business about which the Employee was aware during\nhis employment, or (2) that has executed a non-disclosure agreement with the Company, provided Employee was aware of such fact during this employment with the Company.\n(b) If Employee violates any of the provisions of this Section 2, Employee shall continue to be bound by the restrictions set forth in this Section 2 for an additional period equal to the aggregate period of such violation.\n—\n3. Non-Competition.\n(a) Definitions. For purposes of this Agreement, the following terms shall have the following meanings:\n(1) "Restricted Bum’ness" is defined as a software or software-related business that competes with the Company. ”Restricted Business” includes, but is not limited to, the following companies: Amazoncom, Inc., CA, Inc. (Computer\nAssociates), Canonical Ltd, Citrix Systems, Inc, EMC Corporation, Google, Inc., Hewlett Packard (HP) Corporation, International Business Machines (IBM) Corporation, Microsoft Corporation, Mirantis, Inc., Oracle Corporation,\nPivoml Software, Inc., salesforce.com, Inc. andVMware, Inc.\n(2) "Restricted Territory" is defined as: Anywhere within the United States where the Company has clients and/or has marketed its products or services at the time Employee leaves employment with the Company.\n(b) Non-compete Period.\n(1) During Employee’s employment with the Company and for a period of twelve (12) months thereafter, within the Restricted Territory, Employee shall not, whether as an owner, director, employee, independent contractor or otherwise,\nprovide to a Restricted Business any services similar to or related to the services Employee performed for or with the Company if they are related to any product or service line that competes with any Company product or service line\nexisting or planned as of Employee's termination from employment with the Company: (i) about which Employee had access to operational, financial, or strategic information that is confidential (as defined below) while employed with\nthe Company; or (ii) for which Employee was responsible and/or with which Employee was involved; or (iii) about which Employee was privy to confidential, non-public, and/or proprietary information during Employee' s employment\nwith the Company.\n(2) At the request of Employee, following a confidential consultation, the Company will provide its good faith view as to whether a proposed relationship Employee may wish to pursue appears likely to violate this Section. No view by\nthe Company that a violation is unlikely shall prevent the Company from pursuing Employee under this provision if the relationship described by Employee changes, the product or service line at the Restricted Business becomes subject\nto this Section, or the information provided by Employee to the Company was incomplete or incorrect\n(c) Employee will be treated as an owner of a Restricted Business if he owns an equity interest in the business (except for passive ownership, directly or indirectly, of not more than 1% of the outsmnding stock of a publicly-held company\nand of not more than 5% of the outsmnding stock of a private company).\n(d) If Employee violates any of the provisions of this Section 3, Employee shall continue to be bound by the restrictions set forth in this Section 3 for an additional period equal to the aggregate period of such violation.\n4. Confidential Information.\n(a) Confidential Information. Employee agrees at all times, both during and after the term of his employment with the Company, to hold in the strictest confidence, and not to use (except for the benefit of the Company at the Company’s\ndirection) or disclose (without the written authorization of the General Counsel or other authorized Company officer), regardless of when disclosed to Employee, any and all technical data, trade secrets, know-how or other confidential or\nproprietary information of the Company, including without limitation any and all information related to the products, product plans, technologies, inventions, mask works, ideas,\n—\nprocesses, formulas, source and object codes, computer programs, data bases, other works of authorship, improvements, discoveries, developments, designs and techniques, research, developmental or experimental work, customer and\nbusiness partner lists, employee lists, structure, business plans, sales or marketing plans or results, markets, prices and costs, financial information, or other subject matter pertaining to any business of the Company or any of its licensors,\ncustomers, business partners, consultants or customers (collectively, “Confidential Information")i Employee understands that Confidential Information further includes, but is not limited to, information pertaining to any aspect of the\nCompany's business which is either information not known (or known as a result of a wrongful act of Employee or of others who were under confidentiality obligations as to the item oritems involved) by actual or potential competitors of\nthe Company or other third parties not under confidentiality obligations to the Company, or is otherwise propriemry information of the Company or its customers or suppliers, whether of a technical nature or otherwise Employee further\nunderstands that Confidential Information does not include any of the foregoing items which is or has become publicly and widely known and made generally available through no wrongful act of Employee or of others who were under\nconfidentiality obligations as to the item or items involved. Furthermore, the following shall not be a violation of this Agreement: (i) disclosure or use of Confidential Information that in good faith is determined to be required or\nappropriate to advance the best interests of the Company in connection with Employee' s work as an employee of the Company and is not inconsistent with any lawful request or direction that Employee may receive from the Company's\nBoard of Directors (the "Board") or a committee or other represenmtive of the Board or any authorized Company officer, (ii) disclosure of Confidential Information when required by a court of law, by any governmental agency having\nsupervisory authority over the business of the Company or by any administrative or legislative body (including a committee thereof) with apparent jurisdiction to order Employee to divulge, disclose or make accessible such information;\nprovided, however, that to the extent permitted by law, prior to any such disclosure Employee must notify the Company' s General Counsel of such requirement sufficiently in advance to allow the Company a reasonable opportunity to\nmke any action that it determines appropriate to protect such Confidential Information and Employee agrees to cooperate with the Company in good faith in taking any such action, or (iii) disclosure of Confidential Information to\nEmployee's spouse, attorney and/or personal mx and financial advisors as reasonably necessary or appropriate to advance Employee' s tax, financial and other personal planning (each an "Exempt Person"); provided, however, that prior\nto any disclosure of Confidential Information to an Exempt Person Employee will inform such Exempt Person of Employee's obligations hereunder and of their obligation to protect such Confidential Information to the same extent and\nEmployee understands that any disclosure or use of any Confidential Information by an Exempt Person shall be deemed to be a breach of this Section 4 by Employee.\n(b) Former Employer Information Employee agrees that he does not possess, has not brought, and will not bring to the Company, nor use or disclose in the course of the performance of his duties at the Company, any inventions, technical\ndam, trade secrets, know-how or other confidential or proprietary information of any former employer or third party without the written authorization of such employer or third party. Employee represents that his performance of all terms\nof this Agreement or any other agreement related to his employment with the Company has not breached and will not breach any agreement to keep in confidence the inventions, technical data, trade secrets, know-how or other\nconfidential or proprietary information of any former employer or third party acquired by Employee prior or subsequent to the commencement of his employment with the Company.\n(c) Third Pagy Information. Employee recognizes that the Company has received and in the future will receive confidential or proprietary information from third parties subject to a duty on the Company' s part to maintain the\nconfidentiality of such information and/or to use it only for certain limited purposes (“Third Party Information"). Employee agrees to hold all such Third Party Information in the strictest confidence and not to disclose it to any person or\nentity (other than Company personnel who need to know such information in connection with their work for the Company) or to use it except as necessary in carrying out Employee's work for the Company consistent with the Company' s\nagreement with such third party.\n—\n5. Assignment of Inventions and Original Works of Authorship\n \n(a) Inventions and Original Works Assigned to the Company. During the term of Employee's employment with the Company, Employee will promptly disclose to the Company, will hold in trust for the sole light and benefit of the\n \nCompany, and does hereby assign to the Company all lights to and interests in inventions, developments, discoveries, techniques, modifications, improvements, technology, trade secrets, computer programs, mask works, know-how,\nprocesses, concepts, methods, systems, specifications, algolithms, designs, formulas, original works of authorship, or any other intellectual property lights whatsoever, whether or not patentable or registiable under copyright, trademark or\nsimilarlaws or subject to analogous protection ("Inventions") that Employee may, during employment with the Company, solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to\npractice, (a) that relate to the Company' s past, present or demonstrated or reasonably foreseeable future business or research, whether or not developed during normal working hours, or (b) that are developed with the use or aid of any\nCompany equipment, supplies or facilities, or (c) that use or are based on or developed from any Confidential Information of the Company or Third Party Information, or (d) that result from any work, service or duty Employee performs\nwith the Company (collectively, the ”Assigned Inventions"). Employee agrees and represents that any Invention that would fall within the definition of Assigned Inventions but for having been conceived or developed or reduced to\npractice, or caused to be conceived or developed or reduced to practice during employment but before the Effective Date shall also be hereby assigned and treated as an Assigned Invention. Any assignment hereunder includes all rights of\npaternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as "moral rights,” ”artist' s lights," "droit moral" or the like. Employee further acknowledges that all Assigned Inventions are "works\nmade for hire" (to the greatest extent permitted by applicable law) and are compensated by his salary\nEmployee agrees not to allow any Invention that was conceived, developed, made or reduced to practice priorto his employment with the Company, belongs solely to Employee or belongs to Employee jointly with another, and relates in\nany way to any of the Company' s proposed businesses and products (a "Prior Invention") to be incorporated into any product, process, technology or machine of the Company. If in the course of Employee's employment with the\nCompany, Employee incorporates (or has previously incorporated) into a Company product, process, technology or machine a Prior Invention, the Company is hereby granted and shall have a nonexclusive, royalty-free, irrevocable,\nperpetual, worldwide license (with the right to sublicense) to make, have made, modify, make derivative works of, use, sell, and otherwise distribute or exploit such Prior Invention as art of or in connection with such product, process,\ntechnology or machine. Notwithstanding the foregoing, Employee understands that this Agreement will not be deemed to require assignment of any Invention whose assignment to the Company pursuant to this Agreement would be\nexpressly prohibited by a specifically applicable state law, regulation, rule or public policy of the State of North Carolina or the law of the jurisdiction in which Employee is primarily employed.\n(b) Maintenance of Records. Employee agrees to keep and maintain adequate and current written records of all Assigned Inventions during the term of his employment with the Company, in the format specified by the Company. The\nrecords will be available to and remain the sole property of the Company at all times. Employee agrees not to remove such records from the Company' s place of business except as expressly permitted in writing by an officer of the\nCompany. Employee agrees to provide all such records (including any copies thereof) to the Company at the time of termination of his employment with the Company.\n(c) Enforcement of Intellectual Property Rights. Employee agrees that, whenever requested by the Company, he shall assist the Company or its designee to secure the Company’s, or its designee’s, rights in the Assigned Inventions and\nany copyrights, patents, trademarks, mask work lights, moral rights, or other intellectual property rights relating thereto in any and all countries, including: the disclosure to the Company or its designee of all pertinent information and data\nwith respect thereto; the execution of all applications, specifications, oaths, assignments, recordations, and all other instruments, and the taking of all such other acts (including appearances as a witness), which the Company or its designee\nshall deem necessary in order to apply for, perfect, obtain,\n—\nmaintain, review, restore, enforce, defend and transfer such rights, or if not transferable, waive such rights, and in order to assign and convey to the Company or its designee, and any successors, assigns and nominees thereof such rights,-\nand to further evidence, record and perfect the sole and exclusive rights, title and interest in and to such Assigned Inventions, and any copyrights, patents, trademarks, mask work rights, moral rights or other intellectual property rights\nrelating thereto. Employee further agrees that his obligation to execute or cause to be executed, when it is in his power to do so, any such instruments or papers orto take such other acts shall continue after the termination of this\nAgreement until the expiration of the last such intellectual property right to expire in any country of the world. If the Company or its designee is unable because of Employee's mental or physical incapacity or unavailability or for any\nother reason to secure Employee’s signature to apply for or to pursue any application for any United States or foreign patents, copyright, mask works or other registrations covering Assigned Inventions, then Employee hereby irrevocably\ndesignates and appoints the Company and its duly authorized officers and agents as Employee's agent and attorney in fact, to act for and in his behalf and stead to execute and file any such applications and any documents and to do all\nother lawfully permitted acts to further the application for, prosecution, issuance, maintenance or transfer of letters patent, copyright or other registrations thereon with the same legal force and effect as if originally executed by Employee.\nEmployee hereby waives and irrevocably quitclaims to the Company or its designee any and all claims, of any nature whatsoever, which Employee now or hereafter has for infringement of any and all proprietary rights assigned to the\nCompany or such designee pursuant to the terms of this Agreement\n6. Non-Disparagement.\nEmployee understands and agrees that, as a condition of his employment by the Company and eligibility to participate in the Severance Plan, he agrees not to make any false, disparaging or derogatory statements to any media outlet,\nindustry group, financial institution or current or former employee, consultant, client or customer of the Company regarding the Company or any of its directors, officers, employees, agents or representatives or about the Company' s\nbusiness affairs or financial condition; provided, however, that nothing herein shall prevent Employee from making truthful disclosures to any governmental entity in response to valid legal process or in any litigation or arbitration\n7. Miscellaneous\n(a) Other Remedies. The restrictions contained in this Agreement are necessary for the protection of the legitimate business interests of the Company, including the confidential business information and goodwill of the Company and are\nconsidered by Employee to be reasonable for such purpose. If Employee violates the provisions of Sections 2 or 3, Employee agrees that any breach of this Agreement is likely to cause the Company substantial and irrevocable damage\nthat is difficult to measure and that money damages will be insufficient Therefore, in the event of any such breach or threatened breach, Employee agrees that the Company, in addition to such other remedies that may be available\n(including in this Section 7(a)), shall have the right to obtain an injunction from a court restraining such a breach or threatened breach and the right to specific performance of the provisions of this Agreement, in addition to and cumulative\nwith any other remedy that the Company may have at law or in equity. Employee hereby waives the adequacy of a remedy at law as a defense to any such equimble relief. Employee acknowledges that the Company may cease providing\nany or all benefits under the Severance Plan. Employee acknowledges and agrees that this provision is not a provision for liquidated damages.\n(b) Disclosure of this Agreement. Employee and Company each hereby authorizes the other to notify customers of the Company, any of Employee’s future employers, potential employers or service recipients, and, for a reasonable\nbusiness purpose, others, of the terms and existence of this Agreement and Employee' s continuing obligations to the Company thereunder.\n(c) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and assigns, including any entity with which, or into which, the Company may be merged or that\nmay succeed to the Company's assets or business,- provided, however, that the obligations\n—\nof Employee are personal and shall not be assigned by him. Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary or affiliate thereof to whose employ Employee\nmay be transferred without the necessity that this Agreement he resigned at the time of such transfer.\n(d) Integpretation. If any restriction set forth in Section 2 or Section 3 is found by any court of competent jurisdiction to be unenforceable for any reason, including, but not limited to, because it extends for too long a period of time or over\ntoo great a range of activities or in too broad a geographic area, it shall be interpreted to apply to the maximum extent possible, such as only over the maximum period of time, range of activities or geographic area as to which it may be\nenforceable.\n(e) Severabilim. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.\n(f) Survival. This Agreement shall continue in full force and effect following the cessation of Employee’s employment with the Company for any reason.\n(g) Waivers. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right. A waiver or consent given by the Company on any one occasion is effective only in that\ninstance and will not be construed as a barto or waiver of any right on any other occasion.\n(h) Governing Law. This Agreement has been entered into in the State of North Carolina and will be governed by and construed in accordance with the laws of the North Carolina (without reference to the principles relating to the\nconflicts of laws provisions thereof). Any action, suit, or other legal proceeding that is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of competent\njurisdiction within the State of North Carolina (or, if appropriate, a federal court located within the State of North Carolina), and the Company and Employee each consents to the exclusive jurisdiction of such a court. The Company and\nEmployee each hereby irrevocably waive any right to a trial by jury in any action, suit or other legal proceeding arising under or relating to any provision of this Agreement or to any claim of forum non conveniens.\n(i) Effect on OtherAggements; Amendment. The terms of the Severance Plan and this Agreement supersede all severance provisions of any agreement executed between Employee and the Company including, but not limited to, offer\nletters, individual employment agreements, and any other policy or program of the Company, with the exception of any policy or program of the Company applicable to Employee that provides special cash benefits following a\nchange-in—control (as defined in such policy or program) of the Company. Except to the extent provided in the preceding sentence, this Agreement does not supersede any prior written Agreement between Employee and the Company\nrelating to the subject matter of this Agreement Such previously executed agreements are not expressly modified hereby and shall remain in full force and effect This Agreement may not be modified, changed or discharged in whole or in\npart, except by an agreement in writing signed by Employee and the Company. Employee agrees that any change or changes in his duties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of\nthis A greement.\nLi) Termination Certificate. Employee agrees to execute the Termination Certificate attached as Exhibit A upon termination.\n(k) Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement\nEMPLOYEE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND THE SEVERANCE PLAN AND UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nSignatures on Page Following\nRED HAT, INC.\nBy: /5/ DeLisa Alexander\nName: le isafi exanfler\nTitle: EVP and Chief People Officer\nDate: 11/24/2015\nERIC R. SHANDER\n/5/ Eric R. Shander\nDate: —H727172UT5\nSignature Page forUiS. Employee AgIeement (NC) - Eric R. Shander	Exhibit 10.46\nCONFIDENTIAL DRAFT\nU.S. EMPLOYEE AGREEMENT\nThis Agreement (the "Agreement") is made between Red Hat, Inc. a Delaware corporation (collectively with each of its subsidiaries, the "Company"), and Eric R. Shander ("Employee"), a "U.S. employee" (as shown on the\nCompany's payroll records on the Effective Date (as defined below)) who has been selected by the Company's Chief People Officer for participation in the Red Hat, Inc. Designated U.S. Manager Severance Plan (the "Severance Plan")\nas of November 24, 2015 (the "Effective Date").\nIn consideration of the Company's employment of Employee as the Company's Vice President, Finance, the compensation and benefits package provided to Employee by the Company, and entitlement to benefits under the Severance\nPlan, and in satisfaction of a condition of Employee's participation in such Severance Plan, Employee agrees that upon the Effective Date he shall be bound by all of the restrictions set forth herein\nIn consideration of the foregoing and intending to be legally bound, the parties agree as follows:\n1.\nAcknowledgment\nEmployee acknowledges that Employee's undertakings and commitments and the restrictions set forth in this Agreement, including in particular the non-compete and non-solicitation undertaking contained herein, are a material\ninducement for the Company to employ Employee, to provide him with the ve-referenced pay, and a requirement for Employee to become eligible as a participant in the Severance Plan Employee acknowledges that he has received a\ncopy of the Severance Plan and has had the opportunity to discuss its terms with the Company. Without regard to whether Employee ultimately receives benefits under the Severance Plan, Employee undertakes to fully comply with the\nprovisions hereof and agrees that a breach of these provisions wil cause significant financial and other damages to the Company, including loss of strategic advantages, much of which is difficult to quantify by reference solely to money\ndamages.\n2.\nNon Solicitation\n(a) During Employee's employment with the Company and for a period of twelve (12) months thereafter, Employee shall not, for himself or any entity, nor shal Employee assist or provide information to a third party that would assist\nthat third party to: (i) solicit or cause to solicit for the purposes of diverting, taking away or disrupting, or of attempting to divert, take away or disrupt, the Company's relationship or business with any person or entity who, at any time\nduring the six (6) months preceding such action was or is a client, customer or business partner of the Company, or prospective client, customer or business partner of the Company; (ii) solicit induce or attempt to induce, any employee or\nindependent contractor of the Company to terminate his employment or engagement with the Company; or (iii) hire, recruit or engage as an employee or independent contractor, or attempt to hire, recrui or engage as an employee or\nindependent contractor, any person who was employed or otherwise engaged by the Company within six (6) months prior to such action. For purposes of this provision a 'prospective client, customer or business partner" shall mean any\nperson or entity (x) with whom the Company has had discussions as of Employee's termination of employment with the Company, (y) to whom the Company or made a proposal to do business about which the Employee was aware during\nhis employment, or (z) that has executed a non-disclosure agreement with the Company, provided Employee was aware of such fact during this employment with the Company.\n(b) If Employee violates any of the provisions of this Section 2, Employee shall continue to be bound by the restrictions set forth in this Section 2 for an additional period equal to the aggregate period of such violation.\n3.\n-Competition\n(a) Definitions For purposes of this Agreement, the following terms shall have the following meanings:\n(1) "Restricted Business" is defined as a software or software-related business that competes with the Company. "Restricted Business" includes, but is not limited to, the following companies Amazon.com Inc. CA Inc. (Computer\nAssociates), Canonical Ltd. Citrix Systems Inc. EMC Corporation, Google Inc., Hewlett Packard (HP) Corporation, International Business Machines (IBM) Corporation, Microsoft Corporation, Mirantis, Inc., Oracle Corporation,\nPivotal Software, Inc. salesforce.com Inc and V Mware, Inc.\n(2) "Restricted Territory" is defined as: Anywhere within the United States where the Company has clients and/or has marketed its products or services at the time Employee leaves employment with the Company.\n(b) Non-compete Period\n(1) During Employee's employmen with the Company and for a period of twelve (12) months thereafter, within the Restricted Territory, Employee shall not, whether as an owner, director, employee independent contractor or otherwise,\nprovide to a Restricted Business any services similar to or related to the services Employee performed for or with the Company if they are related to any product or service line that competes with any Company product or service line\nexisting or planned as of Employee's termination from employment with the Company: (i) about which Employee had access to operational, financial, or strategic information that is confidential (as defined below) while employed\nwith\nthe Company; or (ii) for which Employee was responsible and/or with which Employee was involved; or (iii) about which Employee was privy to confidential, non public, and/or proprietary information during Employee's employment\nwith the Company.\n(2) At the request of Employee following a confidential consultation, the Company will provide its good faith view as to whether a proposed relationship Employee may wish to pursue appears likely to violate this Section. No view\nby\nthe Company that a violation is unlikely shall prevent the Company from pursuing Employee under this provision if the relationship described by Employee changes, the product or service line at the Restricted Business becomes subject\nto this Section, or the information provided by Employee to the Company was incomplete or incorrect\n(c) Employee will be treated as an owner of a Restricted Business if he owns an equity interest in the business (except for passive ownership, directly or indirectly, of not more than 1% of the outstanding stock of a publicly-held company\nand of not more than 5% of the outstanding stock of a private company).\n(d) If Employee violates any of the provisions of this Section 3, Employee shall continue to be bound by the restrictions set forth in this Section 3 for an additional period equal to the aggregate period of such violation.\n4.\nConfidential Information.\n(a) Confidential Information Employee agrees at all times, both during and after the term of his employment with the Company, to hold in the strictest confidence and no to use (except for the benefit of the Company at the Company's\ndirection) or disclose (without the written authorization of the General Counsel or other authorized Company officer), regardless of when disclosed to Employee, any and all technical data, trade secrets know-how or other confidential or\nproprietary information of the Company, including without limitation any and all information related to the products, product plans, technologies, inventions, mask works, ideas,\n2\nprocesses, formulas, source and object codes, computer programs, data bases, other works of authorship, improvements, discoveries developments designs and techniques, research developmental or experimenta work, customer and\nbusiness partner lists, employee lists, structure, business plans, sales or marketing plans or results, markets, prices and costs, financial information, or other subject matter pertaining to any business of the Company or any of its licensors,\ncustomers, business partners, consultants or customers (collectively, "Confidential Information"). Employee understands that Confidential Information further includes, but is not limited to, information pertaining to any aspect of the\nCompany's business which is either information not known (or known as a result of a wrongful act of Employee or of others who were under confidentiality obligations as to the item or items involved) by actual or potential competitors of\nthe Company or other third parties not under confidentiality obligations to the Company, or is otherwise proprietary information of the Company or its customers or suppliers, whether of a technical nature or otherwise Employee further\nunderstands that Confidential Information does not include any of the foregoing items which is or has become publicly and widely known and made generally available through no wrongful act of Employee or of others who were under\nconfidentiality obligations as to the item or items involved. Furthermore, the following shall not be a violation of this Agreement: (i) disclosure or use of Confidential Information that in good faith is determined to be required or\nappropriate to advance the best interests of the Company in connection with Employee's work as an employee of the Company and is not inconsistent with any lawful request or direction that Employee may receive from the Company's\nBoard of Directors (the "Board") or a committee or other representative of the Board or any authorized Company officer, (ii) disclosure of Confidential Information when required by a court of law, by any governmental agency having\nsupervisory authority over the business of the Company or by any administrative or legislative body (including a committee thereof) with apparent jurisdiction to order Employee to divulge disclose or make accessible such information;\nprovided, however, that to the extent permitted by law, prior to any such disclosure Employee must notify the Company's General Counsel of such requirement sufficiently in advance to allow the Company a reasonable opportunity to\ntake any action that it determines appropriate to protect such Confidential Information and Employee agrees to cooperate with the Company in good faith in taking any such action, or (iii) disclosure of Confidential Information to\nEmployee's spouse, attomey and/or personal tax and financial advisors as reasonably necessary or appropriate to advance Employee's tax, financial and other persona planning (each an "Exempt Person"); provided however, that prior\nto any disclosure of Confidential Information to an Exempt Person Employee will inform such Exempt Person of Employee's obligations hereunder and of their obligation to protect such Confidential Information to the same extent and\nEmployee understands that any disclosure or use of any Confidential Information by an Exempt Person shall be deemed to be a breach of this Section 4 by Employee.\n(b) Former Employer Information Employee agrees that he does not possess, has not brought, and will not bring to the Company, nor use or disclose in the course of the performance of his duties at the Company, any inventions,\ntechnical\ndata,\ntrade secrets, know-how or other confidential or proprietary information of any former employer or third party without the written authorization of such employer or third party. Employee represents that his performance of all terms\nof this Agreement or any other agreement related to his employment with the Company has not breached and will not breach any agreement to keep in confidence the inventions, technical data, trade secrets, know-how or other\nconfidential or proprietary information of any former employer or third party acquired by Employee prior or subsequent to the commencement of his employment with the Company.\n(c)\nThird Party Information Employee recognizes that the Company has received and in the future will receive confidentia or proprietary information from third parties subject to a duty on the Company's part to maintain the\nconfidentiality of such information and/or to use it only for certain limited purposes ("Third Party Information"). Employee agrees to hold all such Third Party Information in the strictest confidence and not to disclose it to any person or\nentity (other than Company personnel who need to know such information in connection with their work for the Company) or to use it except as necessary in carrying out Employee's work for the Company consistent with the Company's\nagreement with such third party.\n3\n5.\nAssignment of Inventions and Original Works of Authorship\n(a) Inventions and Original Works Assigned to the Company. During the term of Employee's employment with the Company, Employee will promptly disclose to the Company, will hold in trust for the sole right and benefit of the\nCompany, and does hereby assign to the Company all rights to and interests in inventions developments, discoveries, techniques, modifications, improvements, technology, trade secrets, computer programs, mask works, know-how,\nprocesses, concepts methods systems, specifications, algorithms, designs, formulas, original works of authorship, or any other intellectual property rights whatsoever, whether or not patentable or registrable under copyright trademark\nor\nsimilar laws or subject to analogous protection ("Inventions") that Employee may, during employment with the Company, solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced\nto\npractice, (a) that relate to the Company's past, present or demonstrated or reasonably foreseeable future business or research, whether or not developed during normal working hours, or (b) that are developed with the use or aid of any\nCompany equipment, supplies or facilities, or (c) that use or are based on or developed from any Confidential Information of the Company or Third Party Information, or (d) that result from any work service or duty Employee performs\nwith the Company (collectively, the Assigned Inventions") Employee agrees and represents that any Invention that would fall within the definition of Assigned Inventions but for having been conceived or developed or reduced to\npractice, or caused to be conceived or developed or reduced to practice during employment but before the Effective Date shall also be hereby assigned and treated as an Assigned Invention. Any assignment hereunder includes all rights of\npatemity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as "moral rights," "artist's rights," "'droit moral" or the like. Employee further acknowledges that all Assigned Inventions are "works\nmade for hire" (to the greatest extent permitted by applicable law) and are compensated by his salary\nEmployee agrees not to allow any Invention that was conceived, developed, made or reduced to practice prior to his employment with the Company, belongs solely to Employee or belongs to Employee jointly with another, and relates in\nany way to any of the Company's proposed businesses and products (a "Prior Invention") to be incorporated into any product, process, technology or machine of the Company. If in the course of Employee's employment with the\nCompany, Employee incorporates (or has previously incorporated) into a Company product, process, technology or machine a Prior Invention, the Company is hereby granted and shal have a nonexclusive, royalty-free, irrevocable,\nperpetual worldwide license (with the right to sublicense) to make, have made, modify, make derivative works of, use, sell, and otherwise distribute or exploit such Prior Invention as art of or in connection with such product, process,\ntechnology or machine. Notwithstanding the foregoing, Employee understands that this Agreement will not be deemed to require assignment of any Invention whose assignment to the Company pursuant to this Agreemen would be\nexpressly prohibited by a specifically applicable state law, regulation, rule or public policy of the State of North Carolina or the law of the jurisdiction in which Employee is primarily employed.\n(b) Maintenance of Records Employee agrees to keep and maintain adequate and current written records of all Assigned Inventions during the term of his employment with the Company, in the format specified by the Company The\nrecords will be available to and remain the sole property of the Company at all times. Employee agrees not to remove such records from the Company's place of business except as expressly permitted in writing by an officer of the\nCompany. Employee agrees to provide all such records (including any copies thereof) to the Company at the time of termination of his employment with the Company.\n(c)\nEnforcement of Intellectual Property Rights Employee agrees that, whenever requested by the Company, he shall assist the Company or its designee to secure the Company's, or its designee's rights in the Assigned Inventions and\nany copyrights, patents, trademarks, mask work rights, moral rights, or other intellectual property rights relating thereto in any and all countries, including: the disclosure to the Company or its designee of all pertinent information and data\nwith respect thereto; the execution of all applications, specifications, oaths, assignments, recordations, and all other instruments, and the taking of all such other acts (including appearances as a witness) which the Company or its designee\nshall deem necessary in order to apply for, perfect, obtain,\n4\nmaintain, review, restore, enforce, defend and transfer such rights, or if not transferable, waive such rights, and in order to assign and convey to the Company or its designee, and any successors, assigns and nominees thereof such rights;\nand to further evidence, record and perfect the sole and exclusive rights title and interest in and to such Assigned Inventions, and any copyrights, patents, trademarks, mask work rights, moral rights or other intellectual property rights\nrelating thereto. Employee further agrees that his obligation to execute or cause to be executed, when it is in his power to do so, any such instruments or papers or to take such other acts shall continue after the termination of this\ngreement unti the expiration of the last such intellectual property right to expire in any country of the world If the Company or its designee is unable because of Employee's mental or physical incapacity or unavailability or for any\nother reason to secure Employee's signature to apply for or to pursue any application for any United States or foreign patents, copyright, mask works or other registrations covering A ssigned Inventions, then Employee hereby irrevocably\ndesignates and appoints the Company and its duly authorized officers and agents as Employee's agent and attomey in fact to act for and in his behalf and stead to execute and file any such applications and any documents and to do all\nother lawfully permitted acts to further the application for, prosecution, issuance, maintenance or transfer of letters patent, copyright or other registrations thereon with the same legal force and effect as if originally executed by Employee.\nEmployee hereby waives and irrevocably quitclaims to the Company or its designee any and all claims of any nature whatsoever, which Employee now or hereafter has for infringement of any and all proprietary rights assigned to the\nCompany or such designee pursuant to the terms of this Agreement.\n6.\nNon-Disparagement\nEmployee understands and agrees that, as a condition of his employment by the Company and eligibility to participate in the Severance Plan, he agrees not to make any false, disparaging or derogatory statements to any media outlet,\nindustry group, financial institution or current or former employee, consultant, client or customer of the Company regarding the Company or any of its directors, officers, employees, agents or representatives or about the Company's\nbusiness affairs or financial condition provided, however, that nothing herein shal prevent Employee from making truthful disclosures to any governmental entity in response to valid legal process or in any litigation\nor\narbitration.\n7.\nMiscellaneous\n(a) Other Remedies The restrictions contained in this Agreement are necessary for the protection of the legitimate business interests of the Company, including the confidential business information and goodwill of the Company and are\nconsidered by Employee to be reasonable for such purpose If Employee violates the provisions of Sections 2 or 3, Employee agrees that any breach of this Agreement is likely to cause the Company substantial and irrevocable damage\nthat is difficult to measure and that money damages will be insufficient. Therefore, in the event of any such breach or threatened breach Employee agrees that the Company, in addition to such other remedies that may be available\n(including in this Section 7(a)) shall have the right to obtain an injunction from a court restraining such a breach or threatened breach and the right to specific performance of the provisions of this Agreement in addition to and cumulative\nwith\nany other remedy that the Company may have at law or in equity Employee hereby waives the adequacy of a remedy at law as a defense to any such equitable relief. Employee acknowledges that the Company may cease providing\nany or all benefits under the Severance Plan. Employee acknowledges and agrees that this provision is not a provision for liquidated damages.\n(b) Disclosure of this Agreement. Employee and Company each hereby authorizes the other to notify customers of the Company, any of Employee's future employers, potential employers or service recipients, and, for a reasonable\nbusiness purpose, others, of the terms and existence of this Agreement and Employee's continuing obligations to the Company thereunder.\n(c) Successors and ssigns This A greement shall be binding upon and inure to the benefit of both parties and their respective successors and assigns, including any entity with which, or into which, the Company may be merged or that\nmay succeed to the Company's assets or business; provided however that the obligations\n5\nof Employee are personal and shall not be assigned by him. Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary or affiliate thereof to whose employ Employee\nmay be transferred without the necessity that this Agreement be re signed at the time of such transfer.\n(d) Interpretation If any restriction set forth in Section 2 or Section 3 is found by any court of competent jurisdiction to be unenforceable for any reason, including, but not limited to, because it extends for too long a period of time or over\ntoo great a range of activities or in too broad a geographic area, it shall be interpreted to apply to the maximum extent possible such as only over the maximum period of time, range of activities or geographic area as to which it may be\nenforceable.\n(e) Severability In case any provision of this Agreement shal be invalid, illega or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby\n(f) Survival This Agreement shall continue in full force and effect following the cessation of Employee's employment with the Company for any reason.\n(g) Waivers. No delay or omission by the Company in exercising any right under this A greement wil operate as a waiver of that or any other right A waiver or consent given by the Company on any one occasion is effective only in that\ninstance and will not be construed as a bar to or waiver of any right on any other occasion.\n(h) Goveming Law This Agreement has been entered into in the State of North Carolina and will be govered by and construed in accordance with the laws of the North Carolina (without reference to the principles relating to the\nconflicts of laws provisions thereof). Any action, suit, or other legal proceeding that is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of competent\njurisdiction within the State of North Carolina (or, if appropriate, a federal court located within the State of North Carolina), and the Company and Employee each consents to the exclusive jurisdiction of such a court. The Company and\nEmployee each hereby irrevocably waive any right to a trial by jury in any action, suit or other legal proceeding arising under or relating to any provision of this A greement or to any claim of forum non conveniens.\n(i) Effect on Other Agreements; Amendment. The terms of the Severance Plan and this A greement supersede all severance provisions of any agreement executed between Employee and the Company including, but not limited to, offer\nletters individual employment agreements, and any other policy or program of the Company, with the exception of any policy or program of the Company applicable to Employee that provides special cash benefits following a\nchange-in-control (as defined in such policy or program) of the Company. Except to the extent provided in the preceding sentence, this Agreement does not supersede any prior written Agreement between Employee and the Company\nrelating to the subject matter of this Agreement. Such previously executed agreements are not expressly modified hereby and shall remain in ful force and effect This Agreement may not be modified, changed or discharged in whole or in\npart, except by an agreement in writing signed by Employee and the Company. Employee agrees that any change or changes in his duties, salary or compensation after the signing of this Agreement shall not affect the validity or scope\nof\nthis A greement.\n(j) Termination Certificate Employee agrees to execute the Termination Certificate attached as Exhibit A upon termination\n(k) Captions The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement.\n6\nEMPLOYEE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND THE SEVERANCE PLAN AND UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nSignatures on Page Following\n7\nRED HAT, INC.\nBy:\n/s/ DeLisa Alexander\nName:\nDeLisa Alexander\nTitle:\nEVP and Chief People Officer\nDate:\n11/24/2015\nERIC R. SHANDER\n/s/ Eric R. Shander\nDate:\nI1/24/2015\nSignature Page for U.S Employee Agreement (NC) Eric R. Shander	Exhibit 10.46\nCONFIDENTIAL DRAFT\nU.S. EMPLOYEE AGREEMENT\nThis Agreement (the “Agreement”) is made between Red Hat, Inc., a Delaware corporation (collectively with each of its subsidiaries, the “Company”), and Eric R. Shander (“Employee”), a “U .S. employee” (as shown on the\nCompany’s payroll records on the Effective Date (as defined below)) who has been selected by the Company’s Chief People Officer for participation in the Red Hat, Inc. Designated U.S. Manager Severance Plan (the “Severance Plan”)\nas of November 24, 2015 (the “Effective Date”).\nIn consideration of the Company’s employment of Employee as the Company’s Vice President, Finance, the compensation and benefits package provided to Employee by the Company, and entitlement to benefits under the Severance\nPlan, and in satisfaction of a condition of Employee’s participation in such Severance Plan, Employee agrees that upon the Effective Date he shall be bound by all of the restrictions set forth herein.\nIn consideration of the foregoing and intending to be legally bound, the parties agree as follows:\n1.\nAcknowledgment.\nEmployee acknowledges that Employee’s undertakings and commitments and the restrictions set forth in this Agreement, including in particular the non-compete and non-solicitation undertaking contained herein, are a material\ninducement for the Company to employ Employee, to provide him with the above-referenced pay, and a requirement for Employee to become eligible as a participant in the Severance Plan. Employee acknowledges that he has received a\ncopy of the Severance Plan and has had the opportunity to discuss its terms with the Company. Without regard to whether Employee ultimately receives benefits under the Severance Plan, Employee undertakes to fully comply with the\nprovisions hereof and agrees that a breach of these provisions will cause significant financial and other damages to the Company, including loss of strategic advantages, much of which is difficult to quantify by reference solely to money\ndamages.\n2.\nNon-Solicitation.\n(a) During Employee’s employment with the Company and for a period of twelve (12) months thereafter, Employee shall not, for himself or any entity, nor shall Employee assist or provide information to a third party that would assist\nthat third party to: (i) solicit or cause to solicit for the purposes of diverting, taking away or disrupting, or of attempting to divert, take away or disrupt, the Company’s relationship or business with any person or entity who, at any time\nduring the six (6) months preceding such action was or is a client, customer or business partner of the Company, or prospective client, customer or business partner of the Company; (ii) solicit, induce or attempt to induce, any employee or\nindependent contractor of the Company to terminate his employment or engagement with the Company; or (iii) hire, recruit or engage as an employee or independent contractor, or attempt to hire, recruit or engage as an employee or\nindependent contractor, any person who was employed or otherwise engaged by the Company within six (6) months prior to such action. For purposes of this provision, a “prospective client, customer or business partner” shall mean any\nperson or entity (x) with whom the Company has had discussions as of Employee’s termination of employment with the Company, (y) to whom the Company or made a proposal to do business about which the Employee was aware during\nhis employment, or (z) that has executed a non-disclosure agreement with the Company, provided Employee was aware of such fact during this employment with the Company.\n(b) If Employee violates any of the provisions of this Section 2, Employee shall continue to be bound by the restrictions set forth in this Section 2 for an additional period equal to the aggregate period of such violation.\n3.\nNon-Competition.\n(a) Definitions. For purposes of this Agreement, the following terms shall have the following meanings:\n(1) “Restricted Business” is defined as a software or software-related business that competes with the Company. “ Restricted Business” includes, but is not limited to, the following companies: Amazon.com, Inc., CA, Inc. (Computer\nAssociates), Canonical Ltd., Citrix Systems, Inc., EMC Corporation, Google, Inc., Hewlett Packard (HP) Corporation, International Business Machines (IBM) Corporation, Microsoft Corporation, Mirantis, Inc., Oracle Corporation,\nPivotal Software, Inc., salesforce.com, Inc. and VMware, Inc.\n(2) “Restricted Territory” is defined as: Anywhere within the United States where the Company has clients and/or has marketed its products or services at the time Employee leaves employment with the Company.\n(b) Non-compete Period.\n(1) During Employee’s employment with the Company and for a period of twelve (12) months thereafter, within the Restricted Territory, Employee shall not, whether as an owner, director, employee, independent contractor or otherwise,\nprovide to a Restricted Business any services similar to or related to the services Employee performed for or with the Company if they are related to any product or service line that competes with any Company product or service line\nexisting or planned as of Employee’s termination from employment with the Company: (i) about which Employee had access to operational, financial, or strategic information that is confidential (as defined below) while employed with\nthe Company; or (ii) for which Employee was responsible and/or with which Employee was involved; or (iii) about which Employee was privy to confidential, non-public, and/or proprietary information during Employee’s employment\nwith the Company.\n(2) At the request of Employee, following a confidential consultation, the Company will provide its good faith view as to whether a proposed relationship Employee may wish to pursue appears likely to violate this Section. No view by\nthe Company that a violation is unlikely shall prevent the Company from pursuing Employee under this provision if the relationship described by Employee changes, the product or service line at the Restricted Business becomes subject\nto this Section, or the information provided by Employee to the Company was incomplete or incorrect.\n(c) Employee will be treated as an owner of a Restricted Business if he owns an equity interest in the business (except for passive ownership, directly or indirectly, of not more than 1% of the outstanding stock of a publicly-held company\nand of not more than 5% of the outstanding stock of a private company).\n(d) If Employee violates any of the provisions of this Section 3, Employee shall continue to be bound by the restrictions set forth in this Section 3 for an additional period equal to the aggregate period of such violation.\n4.\nConfidential Information.\n(a) Confidential Information. Employee agrees at all times, both during and after the term of his employment with the Company, to hold in the strictest confidence, and not to use (except for the benefit of the Company at the Company’s\ndirection) or disclose (without the written authorization of the General Counsel or other authorized Company officer), regardless of when disclosed to Employee, any and all technical data, trade secrets, know-how or other confidential or\nproprietary information of the Company, including without limitation any and all information related to the products, product plans, technologies, inventions, mask works, ideas,\n2\nprocesses, formulas, source and object codes, computer programs, data bases, other works of authorship, improvements, discoveries, developments, designs and techniques, research, developmental or experimental work, customer and\nbusiness partner lists, employee lists, structure, business plans, sales or marketing plans or results, markets, prices and costs, financial information, or other subject matter pertaining to any business of the Company or any of its licensors,\ncustomers, business partners, consultants or customers (collectively, “Confidential Information”). Employee understands that Confidential Information further includes, but is not limited to, information pertaining to any aspect of the\nCompany’s business which is either information not known (or known as a result of a wrongful act of Employee or of others who were under confidentiality obligations as to the item or items involved) by actual or potential competitors of\nthe Company or other third parties not under confidentiality obligations to the Company, or is otherwise proprietary information of the Company or its customers or suppliers, whether of a technical nature or otherwise. Employee further\nunderstands that Confidential Information does not include any of the foregoing items which is or has become publicly and widely known and made generally available through no wrongful act of Employee or of others who were under\nconfidentiality obligations as to the item or items involved. Furthermore, the following shall not be a violation of this Agreement: (i) disclosure or use of Confidential Information that in good faith is determined to be required or\nappropriate to advance the best interests of the Company in connection with Employee’s work as an employee of the Company and is not inconsistent with any lawful request or direction that Employee may receive from the Company’s\nBoard of Directors (the “Board”) or a committee or other representative of the Board or any authorized Company officer, (ii) disclosure of Confidential Information when required by a court of law, by any governmental agency having\nsupervisory authority over the business of the Company or by any administrative or legislative body (including a committee thereof) with apparent jurisdiction to order Employee to divulge, disclose or make accessible such information;\nprovided, however, that to the extent permitted by law, prior to any such disclosure Employee must notify the Company’s General Counsel of such requirement sufficiently in advance to allow the Company a reasonable opportunity to\ntake any action that it determines appropriate to protect such Confidential Information and Employee agrees to cooperate with the Company in good faith in taking any such action, or (iii) disclosure of Confidential Information to\nEmployee’s spouse, attorney and/or personal tax and financial advisors as reasonably necessary or appropriate to advance Employee’s tax, financial and other personal planning (each an “Exempt Person”); provided, however, that prior\nto any disclosure of Confidential Information to an Exempt Person Employee will inform such Exempt Person of Employee’s obligations hereunder and of their obligation to protect such Confidential Information to the same extent and\nEmployee understands that any disclosure or use of any Confidential Information by an Exempt Person shall be deemed to be a breach of this Section 4 by Employee.\n(b) Former Employer Information. Employee agrees that he does not possess, has not brought, and will not bring to the Company, nor use or disclose in the course of the performance of his duties at the Company, any inventions, technical\ndata, trade secrets, know-how or other confidential or proprietary information of any former employer or third party without the written authorization of such employer or third party. Employee represents that his performance of all terms\nof this Agreement or any other agreement related to his employment with the Company has not breached and will not breach any agreement to keep in confidence the inventions, technical data, trade secrets, know-how or other\nconfidential or proprietary information of any former employer or third party acquired by Employee prior or subsequent to the commencement of his employment with the Company.\n(c) Third Party Information. Employee recognizes that the Company has received and in the future will receive confidential or proprietary information from third parties subject to a duty on the Company’s part to maintain the\nconfidentiality of such information and/or to use it only for certain limited purposes (“Third Party Information”). Employee agrees to hold all such Third Party Information in the strictest confidence and not to disclose it to any person or\nentity (other than Company personnel who need to know such information in connection with their work for the Company) or to use it except as necessary in carrying out Employee’s work for the Company consistent with the Company’s\nagreement with such third party.\n3\n5.\nAssignment of Inventions and Original Works of Authorship\n(a) Inventions and Original Works Assigned to the Company. During the term of Employee’s employment with the Company, Employee will promptly disclose to the Company, will hold in trust for the sole right and benefit of the\nCompany, and does hereby assign to the Company all rights to and interests in inventions, developments, discoveries, techniques, modifications, improvements, technology, trade secrets, computer programs, mask works, know-how,\nprocesses, concepts, methods, systems, specifications, algorithms, designs, formulas, original works of authorship, or any other intellectual property rights whatsoever, whether or not patentable or registrable under copyright, trademark or\nsimilar laws or subject to analogous protection (“Inventions”) that Employee may, during employment with the Company, solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to\npractice, (a) that relate to the Company’s past, present or demonstrated or reasonably foreseeable future business or research, whether or not developed during normal working hours, or (b) that are developed with the use or aid of any\nCompany equipment, supplies or facilities, or (c) that use or are based on or developed from any Confidential Information of the Company or Third Party Information, or (d) that result from any work, service or duty Employee performs\nwith the Company (collectively, the “Assigned Inventions”). Employee agrees and represents that any Invention that would fall within the definition of Assigned Inventions but for having been conceived or developed or reduced to\npractice, or caused to be conceived or developed or reduced to practice during employment but before the Effective Date shall also be hereby assigned and treated as an Assigned Invention. Any assignment hereunder includes all rights of\npaternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral” or the like. Employee further acknowledges that all Assigned Inventions are “works\nmade for hire” (to the greatest extent permitted by applicable law) and are compensated by his salary\nEmployee agrees not to allow any Invention that was conceived, developed, made or reduced to practice prior to his employment with the Company, belongs solely to Employee or belongs to Employee jointly with another, and relates in\nany way to any of the Company’s proposed businesses and products (a “Prior Invention”) to be incorporated into any product, process, technology or machine of the Company. If in the course of Employee’s employment with the\nCompany, Employee incorporates (or has previously incorporated) into a Company product, process, technology or machine a Prior Invention, the Company is hereby granted and shall have a nonexclusive, royalty-free, irrevocable,\nperpetual, worldwide license (with the right to sublicense) to make, have made, modify, make derivative works of, use, sell, and otherwise distribute or exploit such Prior Invention as art of or in connection with such product, process,\ntechnology or machine. Notwithstanding the foregoing, Employee understands that this Agreement will not be deemed to require assignment of any Invention whose assignment to the Company pursuant to this Agreement would be\nexpressly prohibited by a specifically applicable state law, regulation, rule or public policy of the State of North Carolina or the law of the jurisdiction in which Employee is primarily employed.\n(b) Maintenance of Records. Employee agrees to keep and maintain adequate and current written records of all Assigned Inventions during the term of his employment with the Company, in the format specified by the Company. The\nrecords will be available to and remain the sole property of the Company at all times. Employee agrees not to remove such records from the Company’s place of business except as expressly permitted in writing by an officer of the\nCompany. Employee agrees to provide all such records (including any copies thereof) to the Company at the time of termination of his employment with the Company.\n(c) Enforcement of Intellectual Property Rights. Employee agrees that, whenever requested by the Company, he shall assist the Company or its designee to secure the Company’s, or its designee’s, rights in the Assigned Inventions and\nany copyrights, patents, trademarks, mask work rights, moral rights, or other intellectual property rights relating thereto in any and all countries, including: the disclosure to the Company or its designee of all pertinent information and data\nwith respect thereto; the execution of all applications, specifications, oaths, assignments, recordations, and all other instruments, and the taking of all such other acts (including appearances as a witness), which the Company or its designee\nshall deem necessary in order to apply for, perfect, obtain,\n4\nmaintain, review, restore, enforce, defend and transfer such rights, or if not transferable, waive such rights, and in order to assign and convey to the Company or its designee, and any successors, assigns and nominees thereof such rights;\nand to further evidence, record and perfect the sole and exclusive rights, title and interest in and to such Assigned Inventions, and any copyrights, patents, trademarks, mask work rights, moral rights or other intellectual property rights\nrelating thereto. Employee further agrees that his obligation to execute or cause to be executed, when it is in his power to do so, any such instruments or papers or to take such other acts shall continue after the termination of this\nAgreement until the expiration of the last such intellectual property right to expire in any country of the world. If the Company or its designee is unable because of Employee’s mental or physical incapacity or unavailability or for any\nother reason to secure Employee’s signature to apply for or to pursue any application for any United States or foreign patents, copyright, mask works or other registrations covering Assigned Inventions, then Employee hereby irrevocably\ndesignates and appoints the Company and its duly authorized officers and agents as Employee’s agent and attorney in fact, to act for and in his behalf and stead to execute and file any such applications and any documents and to do all\nother lawfully permitted acts to further the application for, prosecution, issuance, maintenance or transfer of letters patent, copyright or other registrations thereon with the same legal force and effect as if originally executed by Employee.\nEmployee hereby waives and irrevocably quitclaims to the Company or its designee any and all claims, of any nature whatsoever, which Employee now or hereafter has for infringement of any and all proprietary rights assigned to the\nCompany or such designee pursuant to the terms of this Agreement.\n6.\nNon-Disparagement.\nEmployee understands and agrees that, as a condition of his employment by the Company and eligibility to participate in the Severance Plan, he agrees not to make any false, disparaging or derogatory statements to any media outlet,\nindustry group, financial institution or current or former employee, consultant, client or customer of the Company regarding the Company or any of its directors, officers, employees, agents or representatives or about the Company’s\nbusiness affairs or financial condition; provided, however, that nothing herein shall prevent Employee from making truthful disclosures to any governmental entity in response to valid legal process or in any litigation or arbitration.\n7.\nMiscellaneous.\n(a) Other Remedies. The restrictions contained in this Agreement are necessary for the protection of the legitimate business interests of the Company, including the confidential business information and goodwill of the Company and are\nconsidered by Employee to be reasonable for such purpose. If Employee violates the provisions of Sections 2 or 3, Employee agrees that any breach of this Agreement is likely to cause the Company substantial and irrevocable damage\nthat is difficult to measure and that money damages will be insufficient. Therefore, in the event of any such breach or threatened breach, Employee agrees that the Company, in addition to such other remedies that may be available\n(including in this Section 7(a)), shall have the right to obtain an injunction from a court restraining such a breach or threatened breach and the right to specific performance of the provisions of this Agreement, in addition to and cumulative\nwith any other remedy that the Company may have at law or in equity. Employee hereby waives the adequacy of a remedy at law as a defense to any such equitable relief. Employee acknowledges that the Company may cease providing\nany or all benefits under the Severance Plan. Employee acknowledges and agrees that this provision is not a provision for liquidated damages.\n(b) Disclosure of this Agreement. Employee and Company each hereby authorizes the other to notify customers of the Company, any of Employee’s future employers, potential employers or service recipients, and, for a reasonable\nbusiness purpose, others, of the terms and existence of this Agreement and Employee’s continuing obligations to the Company thereunder.\n(c) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and assigns, including any entity with which, or into which, the Company may be merged or that\nmay succeed to the Company’s assets or business; provided, however, that the obligations\n5\nof Employee are personal and shall not be assigned by him. Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary or affiliate thereof to whose employ Employee\nmay be transferred without the necessity that this Agreement be re-signed at the time of such transfer.\n(d) Interpretation. If any restriction set forth in Section 2 or Section 3 is found by any court of competent jurisdiction to be unenforceable for any reason, including, but not limited to, because it extends for too long a period of time or over\ntoo great a range of activities or in too broad a geographic area, it shall be interpreted to apply to the maximum extent possible, such as only over the maximum period of time, range of activities or geographic area as to which it may be\nenforceable.\n(e) Severability. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.\n(f) Survival. This Agreement shall continue in full force and effect following the cessation of Employee’s employment with the Company for any reason.\n(g) Waivers. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right. A waiver or consent given by the Company on any one occasion is effective only in that\ninstance and will not be construed as a bar to or waiver of any right on any other occasion.\n(h) Governing Law. This Agreement has been entered into in the State of North Carolina and will be governed by and construed in accordance with the laws of the North Carolina (without reference to the principles relating to the\nconflicts of laws provisions thereof). Any action, suit, or other legal proceeding that is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of competent\njurisdiction within the State of North Carolina (or, if appropriate, a federal court located within the State of North Carolina), and the Company and Employee each consents to the exclusive jurisdiction of such a court. The Company and\nEmployee each hereby irrevocably waive any right to a trial by jury in any action, suit or other legal proceeding arising under or relating to any provision of this Agreement or to any claim of forum non conveniens.\n(i) Effect on Other Agreements; Amendment. The terms of the Severance Plan and this Agreement supersede all severance provisions of any agreement executed between Employee and the Company including, but not limited to, offer\nletters, individual employment agreements, and any other policy or program of the Company, with the exception of any policy or program of the Company applicable to Employee that provides special cash benefits following a\nchange-in-control (as defined in such policy or program) of the Company. Except to the extent provided in the preceding sentence, this Agreement does not supersede any prior written Agreement between Employee and the Company\nrelating to the subject matter of this Agreement. Such previously executed agreements are not expressly modified hereby and shall remain in full force and effect. This Agreement may not be modified, changed or discharged in whole or in\npart, except by an agreement in writing signed by Employee and the Company. Employee agrees that any change or changes in his duties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of\nthis Agreement.\n(j) Termination Certificate. Employee agrees to execute the Termination Certificate attached as Exhibit A upon termination.\n(k) Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any section of this Agreement.\n6\nEMPLOYEE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT AND THE SEVERANCE PLAN AND UNDERSTANDS AND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nSignatures on Page Following\n7\nRED HAT, INC.\nBy:\n/s/ DeLisa Alexander\nName:\nDeLisa Alexander\nTitle:\nEVP and Chief People Officer\nDate:\n11/24/2015\nERIC R. SHANDER\n/s/ Eric R. Shander\nDate:\n11/24/2015\nSignature Page for U.S. Employee Agreement (NC) – Eric R. Shander
+eb5eb1e0ff77ed33061c4e44b6a2cfc9.pdf	effective_date jurisdiction party term	Exhibit (e)(2)\nConfidential\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (“Agreement”) is effective as of February 10, 2017 (“Effective Date”), between Kite\nPharma, Inc., a Delaware corporation having a place of business at 2225 Colorado Avenue, Santa Monica, CA 90404 (“Kite”) and\nGilead Sciences, Inc., a Delaware corporation having a place of business at 333 Lakeside Drive, Foster City, CA 94404\n(“Company”). Kite and Company may be referred to herein individually as a “Party” and collectively as the “Parties.”\nThe Parties desire to exchange Confidential Information (as defined below) for the Purpose (as defined below) and desire that their\nrespective Confidential Information be maintained in accordance with this Agreement. Therefore, the Parties agree as follows:\n1. Definitions.\n1.1 “Affiliate” means, with respect to a Party, any person, corporation or other entity that directly or indirectly controls, is\ncontrolled by, or is under common control with such Party. For purposes of this definition, “control” means possession of\nthe power to direct the management of such entity or person, whether through ownership of more than fifty percent (50%)\nof voting securities, by contract or otherwise.\n1.2 “Confidential Information” means any and all information and/or data disclosed to the Receiving Party (as defined below)\nby the Disclosing Party (as defined below) under this Agreement, and may include, without limitation, know-how, data,\ndesigns, plans, specifications, protocols, documents, trade secrets, ideas, concepts, products, processes, prototypes,\nformulas, works-in-progress, systems, technologies, manufacturing or marketing techniques, business or financial\ninformation; provided, however, that Confidential Information shall not include, and neither party shall disclose to the other\nparty, any non-publicly disclosed chemical structures of its compounds or sequence information, including amino acid and\nnucleic acid sequences, of its proteins, molecules or other proprietary substances, unless such disclosure is requested in\nadvance in writing by the Receiving Party and thereafter later agreed to in writing by both parties, in which case such\ndisclosed chemical structures and/or sequence information (as specifically indicated in any such subsequent writing) shall\nbe deemed Confidential Information of the Disclosing Party under this Agreement.\n1.3 “Disclosing Party” means the Party or its Representatives divulging Confidential Information to the Receiving Party (as\ndefined below).\n1.4 “Purpose” means to discuss, evaluate, negotiate and possibly enter into a business transaction involving Kite (and/or any of\nits Affiliates) and the Company (and/or any of its Affiliates).\n1.5 “Receiving Party” means the Party or its Representatives receiving Confidential Information from the Disclosing Party.\n1.6 “Representatives” means, with respect to a Party, such Party’s Affiliates and its (and its Affiliates’) respective officers\n(including directors), trustees, employees, agents, professional advisors, non-employee staff and consultants, including legal\nand financial advisors.\n2. Duties.\n2.1 Restrictions on Use and Disclosure. Each Receiving Party agrees that it shall hold the Disclosing Party’s Confidential\nInformation in secrecy and confidence and shall not disclose any of the Disclosing Party’s Confidential Information to a\nthird party, other than the Receiving Party’s Representatives as permitted by Section 2.2 below, nor use it for any purpose\nother than the Purpose, without the express\n1of5\nConfidential\nwritten consent of the Disclosing Party. Each Receiving Party agrees to use at least the same degree of care to prevent any\nunauthorized access, disclosure or publication of the Confidential Information of the Disclosing Party as the Receiving\nParty uses to protect its own valuable Confidential Information but in no event less than a commercially reasonable degree\nof care.\n2.2 Disclosures to Representatives. The Receiving Party shall only disclose such Confidential Information to those\nRepresentatives who have a need to know such Confidential Information for the Purpose. All Representatives to whom the\nConfidential Information is disclosed shall be subject to legally binding nondisclosure and nonuse restrictions that are at\nleast as restrictive as the terms of this Agreement. Each Party, as a Receiving Party hereto, shall be responsible for the acts\nand omissions of its respective Representatives under this Agreement as if such acts and omissions were performed (or not\nperformed) by the Receiving Party. If an act or omission of a Representative of a Receiving Party would, if committed by\nthe Receiving Party, constitute a breach of this Agreement, such act or omission shall constitute a breach of this Agreement\nby such Receiving Party.\n2.3 Form of Information. Confidential Information may be disclosed orally, visually, or in a tangible or electronic written form.\nConfidential Information may be disclosed directly or indirectly, by Disclosing Party or the Disclosing Party’s\nRepresentatives to the Receiving Party or the Receiving Party’s Representatives.\n2.4 Attorney-Client Privilege. Nothing in this Agreement obligates either Party to reveal material subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege. However, to the extent that any Confidential Information\nmay include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege\nconcerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding\nthat the sharing, whether inadvertent or intentional, of such material is not intended to, and shall not, waive or diminish in\nany way the confidentiality of such material or its continued protection under the attorney-client privilege, work product\ndoctrine or other applicable privilege. All Confidential Information provided by either Party that is entitled to protection\nunder the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such\nprotection under these privileges, this Agreement, and under the joint defense doctrine.\n2.5 Other Information. Neither Company nor Kite shall, without the other party’s consent, disclose to any other person (except\nfor Representatives as permitted by Section 2.1 and 2.2 above) either the existence of this Agreement, the fact that\ninvestigations, discussions or negotiations are or may be taking place concerning a possible transaction or any facts related\nthereto (“Other Information”).\n3. Exceptions and Other Matters.\n3.1 Exceptions. Notwithstanding anything to the contrary in this Agreement, Confidential Information does not include any\ninformation that:\n(a) is known by the Receiving Party prior to the time of its receipt, such prior knowledge being documented by written\nevidence predating the date that such information was disclosed hereunder;\n(b) is at the time of disclosure or thereafter becomes published or otherwise part of the public domain without breach of\nthis Agreement by the Receiving Party;\n(c) is disclosed to the Receiving Party by a third party who is not under an obligation to maintain the confidentiality of the\ninformation; or\n(d) is independently developed by the Receiving Party without any use of or reference to Confidential Information of the\nDisclosing Party, such independent development being documented by contemporaneous written evidence.\n2of5\nConfidential\n3.2 Partial Disclosures; Combinations. Specific aspects or details of Confidential Information shall not be deemed to be within\nthe public domain or in the possession of a Receiving Party merely because the Confidential Information is embraced by\nmore general information in the public domain or in the possession of such party. Further, any combination of individual\nelements of Confidential Information shall be considered Confidential Information and shall not be considered in the public\ndomain or in the possession of a Receiving Party merely because one or more individual elements of such combination are\nin the public domain or in the possession of such Party; rather such combination shall only be considered in the public\ndomain or in the possession of a Receiving Party if the combination of each of the individual elements of the combination is\nin the public domain or in the possession of the Receiving Party.\n3.3 Disclosure Required by Court Order or Government. Notwithstanding anything in this Agreement to the contrary, Receiving\nParty may disclose Confidential Information of the Disclosing Party and Other Information to the extent disclosure is\nrequired by applicable law, rule, regulation, governmental or court order, pursuant to subpoena or other governmental\nauthority, provided that the Receiving Party shall promptly inform the Disclosing Party in writing of such disclosure\nrequirement so that the Disclosing Party may seek a protective order or other appropriate remedy. The Receiving Party shall\nreasonably cooperate with Disclosing Party in connection with the Disclosing Party’s efforts to obtain any such order or\nother remedy. In the event that no such protective order or other remedy is obtained, then the Receiving Party may furnish\nonly that portion of the Confidential Information which the Receiving Party is advised by counsel (including its internal\nlegal counsel) that it is legally required to disclose.\n3.4 No Representation or Warranty By Discloser. The Disclosing Party makes no express or implied representation or warranty\nas to the accuracy, completeness or utility of its Confidential Information. THE RECEIVING PARTY ACKNOWLEDGES\nTHAT THE CONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY IS PROVIDED “AS IS,” WITHOUT\nANY WARRANTY, EXPRESS OR IMPLIED.\n3.5 No License Implied. This Agreement shall not be construed to grant to Receiving Party any license or other rights with\nrespect to the Confidential Information.\n3.6 Ownership; Return/Destruction. All Confidential Information and all materials containing Confidential Information that are\ndelivered to the Receiving Party by the Disclosing Party or the Disclosing Party’s Representatives under this Agreement are\nand remain the sole and exclusive property of the Disclosing Party. Upon written request of the Disclosing Party, the\nReceiving Party shall, at its own cost and expense, promptly destroy or return to the Disclosing Party all such materials (if\nreturned, in the medium provided by Disclosing Party) and destroy all copies of the foregoing or any portion thereof;\nprovided, however, that Receiving Party may retain one copy of the foregoing materials in a secure location for\nrecord-keeping purposes. Neither the Receiving Party nor any of its Representatives shall be required to delete or destroy\nany electronic back-up tapes or other electronic back-up files that have been created solely by their automatic or routine\narchiving and back-up procedures, to the extent created and retained in a manner consistent with its or their standard\narchiving and back-up procedures.\n4. Term and Termination.\n4.1 Term. The term of this Agreement during which Confidential Information may be disclosed by one Party to the other Party\nshall begin on the Effective Date and end five (5) years after the Effective Date, unless extended by mutual agreement.\n4.2 Survival. The Receiving Party’s obligations with respect to Confidential Information under Section 2 shall survive\ntermination or expiration of this Agreement, and shall expire seven (7) years from the Effective Date.\n3of5\nConfidential\n5. Miscellaneous.\n5.1 No Future Obligations. Nothing in this Agreement shall be deemed to create any obligation on the part of either Party to\ncontinue discussions or to enter into a further agreement. Either party may terminate discussions or negotiations at any time\n5.2 Assignment. Neither this Agreement nor the obligations hereunder may be assigned or otherwise transferred by a Party\nwithout written consent of the other Party, except in connection with the sale of all or substantially all of a Party’s assets,\nequity or business or a merger, reorganization or consolidation involving at least fifty percent (50%) or more of the voting\nequity securities of the Party. This Agreement shall be binding upon the parties, their successors and their permitted assigns.\n5.3 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California\nwithout reference to its rules of conflicts of laws.\n5.4 Transfer Restrictions Under Export Control Laws. Each Party agrees that it and its Representatives shall comply with any\napplicable export control laws, rules and regulations relating to the export of technical information, materials or products in\nconnection with any disclosure of Confidential Information under this Agreement.\n5.5 Notices. Each notice required or permitted hereunder shall be in writing and sufficient if delivered personally, sent by a\nnationally-recognized overnight courier or sent by registered or certified mail, postage prepaid, return receipt requested, to\nthe Parties at the addresses indicated in the introductory paragraph of this Agreement, to the attention of the signatories\nbelow, with a copy, in the case of Company, to the General Counsel. Either Party may change its address by giving the\nother Party written notice, delivered in accordance with this Section 5.5 .\n5.6 Waivers and Amendments; Preservation of Remedies. This Agreement may be amended, or the terms and conditions may\nbe waived, only by a written agreement signed by both Parties. No delay on the part of any Party in exercising any right\nhereunder shall operate as a waiver, nor shall any partial exercise of any right hereunder preclude any other exercise thereof.\nThe rights and remedies herein are cumulative and are not exclusive of any rights or remedies which any Party may\notherwise have at law or in equity.\n5.7 Injunctive Relief. The Parties acknowledge that a breach of this Agreement may result in irreparable harm and damages to a\nParty in an amount difficult to ascertain and which cannot be adequately compensated by a monetary award. Accordingly,\nin addition to any of the relief to which any Party may be entitled under this Agreement, at law or in equity, such Party shall\nbe entitled to seek temporary and permanent injunctive relief from any breach or threatened breach without the requirement\nof the Party bringing such action to post any bond or other security with the court in connection therewith.\n5.8 Entire Agreement; Severability. This Agreement constitutes the entire understanding of the Parties with respect to the\nsubject matter hereof and any express or implied agreements, either oral or written, are superseded by the terms of this\nAgreement. If any one or more provisions of this Agreement is held invalid, illegal or unenforceable in any respect by a\ncourt having competent jurisdiction, the validity, legality and enforceability of this Agreement and the remaining provisions\ncontained herein shall not in any way be affected or impaired thereby.\n5.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be an original as against either Party\nwhose signature appears thereon, but all of which taken together shall constitute but one and the same instrument. An\nexecuted facsimile or electronic scanned copy of this Agreement shall have the same force and effect as an original.\n4of5\nConfidential\nKITE PHARMA, INC.\nGILEAD SCIENCES, INC.\nBy:\n/s/ Veer Bhavnagri\nBy: /s/ Elizabeth P. Bhatt\nName:\nVeer Bhavnagri\nName:\nElizabeth Bhatt\nTitle:\nVP Corporate Counsel\nTitle:\nVice President, Corporate\nDevelopment\nDate:\nFebruary 10, 2017\nDate:February 15, 2017\n5of5	Exhibit (e)(2)\nConfidential\nMUTUAL CONFIDENTIALITY AG REEMENT\nThis Mutual Confidentiality A greement (”A greement”) is effective as of February 10, 2017 (”Effective Date"), between Kite Pharma, Inc., a Delaware corporation having a place of business at 2225 Colorado Avenue, Santa Monica, CA 90404 (”Kite”) and Gilead Sciences, Inc., a Delaware corporation having a place of business at 333 Lakeside Drive, Foster City, CA 94404 (”Company”). Kite and Company may be referred to herein individually as a ”Party" and collectively as the ”Parties.” The Parties desire to exchange Confidential Information (as defined below) for the Purpose (as defined below) and desire that their respective Confidential Information be maintained in accordance with this Agreement. Therefore, the Parties agree as follows: 1. Definitions. 1.1\n1.2\n1.3\n1.4\n1.5\n1.6\n”A ffiliate” means, with respect to a Party, any person, corporation or other entity that directly or indirectly controls, is\ncontrolled by, or is under common control with such Party. For purposes of this definition, ”control” means possession of\nthe power to direct the management of such entity or person, whether through ownership of more than fifty percent (50%)\nof voting securities, by contract or otherwise.\n”Confidential Information” means any and all information and/or data disclosed to the Receiving Party (as defined below)\nby the Disclosing Party (as defined below) under this Agreement, and may include, without limitation, know-how, data,\ndesigns, plans, specifications, protocols, documents, trade secrets, ideas, concepts, products, processes, prototypes,\nformulas, works-in-progress, systems, technologies, manufacturing or marketing techniques, business or financial\ninformation; provided, however, that Confidential Information shall not include, and neither party shall disclose to the other\nparty, any non-publicly disclosed chemical structures of its compounds or sequence information, including amino acid and\nnucleic acid sequences, of its proteins, molecules or other proprietary substances, unless such disclosure is requested in\nadvance in writing by the Receiving Party and thereafter later agreed to in writing by both parties, in which case such\ndisclosed chemical structures and/or sequence information (as specifically indicated in any such subsequent writing) shall\nbe deemed Confidential Information of the Disclosing Party under this Agreement.\n”Disclosing Party" means the Party or its Representatives divulging Confidential Information to the Receiving Party (as\ndefined below).\n”Purpose" means to discuss, evaluate, negotiate and possibly enter into a business transaction involving Kite (and/or any of\nits Affiliates) and the Company (and/or any of its Affiliates).\n”Receiving Party" means the Party or its Representatives receiving Confidential Information from the Disclosing Party.\n”Representatives" means, with respect to a Party, such Party's Affiliates and its (and its Affiliates’) respective officers\n(including directors), trustees, employees, agents, professional advisors, non- employee staff and consultants, including legal\nand financial advisors.\n2. Duties. 2.1\nRestrictions on Use and Disclosure. Each Receiving Party agrees that it shall hold the Disclosing Party’ s Confidential\nInformation in secrecy and confidence and shall not disclose any of the Disclosing Party’ s Confidential Information to a\nthird party, other than the Receiving Party’ s Representatives as permitted by Section 2.2 below, nor use it for any purpose\nother than the Purpose, without the express\n1of5\n \nConfidential\nwritten consent of the Disclosing Party. Each Receiving Party agrees to use at least the same degree of care to prevent any\nunauthorized access, disclosure or publication of the Confidential Information of the Disclosing Party as the Receiving\nParty uses to protect its own valuable Confidential Information but in no event less than a commercially reasonable degree\nof care.\n2.2 Disclosures to Representatives. The Receiving Party shall only disclose such Confidential Information to those\nRepresentatives who have a need to know such Confidential Information for the Purpose. All Representatives to whom the\nConfidential Information is disclosed shall be subject to legally binding nondisclosure and nonuse restrictions that are at\nleast as restrictive as the terms of this Agreement. Each Party, as a Receiving Party hereto, shall be responsible for the acts\nand omissions of its respective Representatives under this Agreement as if such acts and omissions were performed (or not\nperformed) by the Receiving Party. If an act or omission of a Representative of a Receiving Party would, if committed by\nthe Receiving Party, constitute a breach of this Agreement, such act or omission shall constitute a breach of this A greement\nby such Receiving Party.\n2.3 Form of Information. Confidential Information may be disclosed orally, visually, or in a tangible or electronic written form.\nConfidential Information may be disclosed directly or indirectly, by Disclosing Party or the Disclosing Party's\nRepresentatives to the Receiving Party or the Receiving Party’ s Representatives.\n2.4 Attorney-Client Privilege. Nothing in this Agreement obligates either Party to reveal material subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege. However, to the extent that any Confidential Information\nmay include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege\nconcerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding\nthat the sharing, whether inadvertent or intentional, of such material is not intended to, and shall not, waive or diminish in\nany way the confidentiality of such material or its continued protection under the attorney-client privilege, work product\ndoctrine or other applicable privilege. All Confidential Information provided by either Party that is entitled to protection\nunder the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such\nprotection under these privileges, this A greement, and under the joint defense doctrine.\n2.5 Other Information. Neither Company nor Kite shall, without the other party’ s consent, disclose to any other person (except\nfor Representatives as permitted by Section 2.1 and 2.2 above) either the existence of this Agreement, the fact that\ninvestigations, discussions or negotiations are or may be taking place concerning a possible transaction or any facts related\nthereto (”Other Information”).\n3. Exceptions and Other Matters.\n3.1 Exceptions. Notwithstanding anything to the contrary in this Agreement, Confidential Information does not include any\ninformation that:\n(a) is known by the Receiving Party prior to the time of its receipt, such prior knowledge being documented by written\nevidence predating the date that such information was disclosed hereunder;\n(b) is at the time of disclosure or thereafter becomes published or otherwise part of the public domain without breach of\nthis Agreement by the Receiving Party;\n(c) is disclosed to the Receiving Party by a third party who is not under an obligation to maintain the confidentiality of the\ninformation; or\n(d) is independently developed by the Receiving Party without any use of or reference to Confidential Information of the\nDisclosing Party, such independent development being documented by contemporaneous written evidence.\n2of5\n \nConfidential\n3.2 Partial Disclosures; Combinations. Specific aspects or details of Confidential Information shall not be deemed to be within\nthe public domain or in the possession of a Receiving Party merely because the Confidential Information is embraced by\nmore general information in the public domain or in the possession of such party. Further, any combination of individual\nelements of Confidential Information shall be considered Confidential Information and shall not be considered in the public\ndomain or in the possession of a Receiving Party merely because one or more individual elements of such combination are\nin the public domain or in the possession of such Party; rather such combination shall only be considered in the public\ndomain or in the possession of a Receiving Party if the combination of each of the individual elements of the combination is\nin the public domain or in the possession of the Receiving Party.\n3.3 Disclosure Required by Court Order or Government. Notwithstanding anything in this Agreement to the contrary, Receiving\nParty may disclose Confidential Information of the Disclosing Party and Other Information to the extent disclosure is\nrequired by applicable law, rule, regulation, governmental or court order, pursuant to subpoena or other governmental\nauthority, provided that the Receiving Party shall promptly inform the Disclosing Party in writing of such disclosure\nrequirement so that the Disclosing Party may seek a protective order or other appropriate remedy. The Receiving Party shall\nreasonably cooperate with Disclosing Party in connection with the Disclosing Party's efforts to obtain any such order or\nother remedy. In the event that no such protective order or other remedy is obtained, then the Receiving Party may furnish\nonly that portion of the Confidential Information which the Receiving Party is advised by counsel (including its internal\nlegal counsel) that it is legally required to disclose.\n3.4 No Representation or Warranty By Discloser. The Disclosing Party makes no express or implied representation or warranty\nas to the accuracy, completeness or utility of its Confidential Information. THE RECEIVING PARTY ACKNOWLEDGES\nTHAT THE CONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY IS PROVIDED ”AS IS,” WITHOUT\nANY WARRANTY, EXPRESS OR IMPLIED.\n3.5 No License Implied. This Agreement shall not be construed to grant to Receiving Party any license or other rights with\nrespect to the Confidential Information.\n3.6 Ownership; Return/D estruction. All Confidential Information and all materials containing Confidential Information that are\ndelivered to the Receiving Party by the Disclosing Party or the Disclosing Party’ s Representatives under this A greement are\nand remain the sole and exclusive property of the Disclosing Party. Upon written request of the Disclosing Party, the\nReceiving Party shall, at its own cost and expense, promptly destroy or return to the Disclosing Party all such materials (if\nreturned, in the medium provided by Disclosing Party) and destroy all copies of the foregoing or any portion thereof;\nprovided, however, that Receiving Party may retain one copy of the foregoing materials in a secure location for\nrecord-keeping purposes. Neither the Receiving Party nor any of its Representatives shall be required to delete or destroy\nany electronic back-up tapes or other electronic back-up files that have been created solely by their automatic or routine\narchiving and back-up procedures, to the extent created and retained in a manner consistent with its or their standard\narchiving and back-up procedures.\n4. Term and Termination.\n4.1 Term. The term of this Agreement during which Confidential Information may be disclosed by one Party to the other Party\nshall begin on the Effective Date and end five (5) years after the Effective Date, unless extended by mutual agreement.\n4.2 Survival. The Receiving Party’ s obligations with respect to Confidential Information under Section 2 shall survive\ntermination or expiration of this Agreement, and shall expire seven (7) years from the Effective Date.\n3of5\n \nConfidential\nMiscellaneous. 5.1\n5.2\n5.3\n5.4\n5.5\n5.6\n5.7\n5.8\n5.9\nNo Future Obligations. Nothing in this Agreement shall be deemed to create any obligation on the part of either Party to\ncontinue discussions or to enter into a further agreement. Either party may terminate discussions or negotiations at any time\nA ssignment. Neither this A greement nor the obligations hereunder may be assigned or otherwise transferred by a Party\nwithout written consent of the other Party, except in connection with the sale of all or substantially all of a Party’ s assets,\nequity or business or a merger, reorganization or consolidation involving at least fifty percent (50%) or more of the voting\nequity securities of the Party. This Agreement shall be binding upon the parties, their successors and their permitted assigns.\nApplicable Law. This A greement shall be governed by and construed in accordance with the laws of the State of California\nwithout reference to its rules of conflicts of laws.\nTransfer Restrictions Under Export Control Laws. Each Party agrees that it and its Representatives shall comply with any\napplicable export control laws, rules and regulations relating to the export of technical information, materials or products in\nconnection with any disclosure of Confidential lnforrnation under this Agreement.\nNotices. Each notice required or permitted hereunder shall be in writing and sufficient if delivered personally, sent by a\nnationally-recognized overnight courier or sent by registered or certified mail, postage prepaid, return receipt requested, to\nthe Parties at the addresses indicated in the introductory paragraph of this A greement, to the attention of the signatories\nbelow, with a copy, in the case of Company, to the General Counsel. Either Party may change its address by giving the\nother Party written notice, delivered in accordance with this Section 5.5.\nWaivers and Amendments; Preservation of Remedies. This Agreement may be amended, or the terms and conditions may\nbe waived, only by a written agreement signed by both Parties. No delay on the part of any Party in exercising any right\nhereunder shall operate as a waiver, nor shall any partial exercise of any right hereunder preclude any other exercise thereof.\nThe rights and remedies herein are cumulative and are not exclusive of any rights or remedies which any Party may\notherwise have at law or in equity.\nlnjunctive Relief. The Parties acknowledge that a breach of this Agreement may result in irreparable harm and damages to a\nParty in an amount difficult to ascertain and which cannot be adequately compensated by a monetary award. Accordingly,\nin addition to any of the relief to which any Party may be entitled under this Agreement, at law or in equity, such Party shall\nbe entitled to seek temporary and permanent injunctive relief from any breach or threatened breach without the requirement\nof the Party bringing such action to post any bond or other security with the court in connection therewith.\nEntire Agreement; Severabilifl. This Agreement constitutes the entire understanding of the Parties with respect to the\nsubject matter hereof and any express or implied agreements, either oral or written, are superseded by the terms of this\nAgreement. If any one or more provisions of this Agreement is held invalid, illegal or unenforceable in any respect by a\ncourt having competent jurisdiction, the validity, legality and enforceability of this A greement and the remaining provisions\ncontained herein shall not in any way be affected or impaired thereby.\nCounterparts. This A greement may be executed in counterparts, each of which shall be an original as against either Party\nwhose signature appears thereon, but all of which taken together shall constitute but one and the same instrument. An\nexecuted facsimile or electronic scanned copy of this Agreement shall have the same force and effect as an original.\n4of5\n \nKITE PHARMA, INC.\nBy:\nName:\nTitle:\nDate:\n/s/ V eer Bhavnagri\nW\nVP Corporate Counsel\nFebruary 10, 2017\n50f5\nConfidential\nGILEAD SCIENCES, INC.\nBy: /s/ Elizabeth P. Bhatt\nMW\nVice President, Corporate\nTitleiD eveloprnent\nDat§ebruary 15, 2017	Exhibit (e)(2)\nConfidential\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality A greement Agreement") is effective as of February 10, 2017 ("Effective Date"), between Kite\nPharma, Inc., a Delaware corporation having a place of business at 2225 Colorado Avenue, Santa Monica, CA 90404 ("Kite") and\nGilead Sciences, Inc., a Delaware corporation having a place of business at 333 Lakeside Drive, Foster City, CA 94404\n("Company"). Kite and Company may be referred to herein individually as a "Party" and collectively as the "Parties."\nThe Parties desire to exchange Confidential Information (as defined below) for the Purpose (as defined below) and desire that their\nrespective Confidential Information be maintained in accordance with this A greement. Therefore, the Parties agree as follows:\n1. Definitions.\n1.1 "Affiliate" means, with respect to a Party, any person, corporation or other entity that directly or indirectly controls, is\ncontrolled by, or is under common control with such Party. For purposes of this definition, "control" means possession of\nthe power to direct the management of such entity or person, whether through ownership of more than fifty percent (50%)\nof voting securities, by contract or otherwise.\n1.2 "Confidential Information" means any and all information and/or data disclosed to the Receiving Party (as defined below)\nby the Disclosing Party (as defined below) under this A greement, and may include, without limitation, know-how, data,\ndesigns, plans, specifications, protocols, documents, trade secrets, ideas, concepts, products, processes prototypes,\nformulas, works-in-progress, systems, technologies, manufacturing or marketing techniques, business or financial\ninformation; provided, however, that Confidential Information shall not include, and neither party shall disclose to the other\nparty, any non-publicly disclosed chemical structures of its compounds or sequence information, including amino acid and\nnucleic acid sequences, of its proteins, molecules or other proprietary substances, unless such disclosure is requested in\nadvance in writing by the Receiving Party and thereafter later agreed to in writing by both parties, in which case such\ndisclosed chemical structures and/or sequence information (as specifically indicated in any such subsequent writing) shall\nbe deemed Confidential Information of the Disclosing Party under this greement.\n1.3\n"Disclosing Party" means the Party or its Representatives divulging Confidential Information to the Receiving Party (as\ndefined below).\n1.4 "Purpose" means to discuss, evaluate, negotiate and possibly enter into a business transaction involving Kite (and/or any of\nits Affiliates) and the Company (and/or any of its Affiliates).\n1.5 "Receiving Party" means the Party or its Representatives receiving Confidential Information from the Disclosing Party.\n1.6 "Representatives" means, with respect to a Party, such Party's Affiliates and its (and its Affiliates') respective officers\n(including directors), trustees, employees, agents, professional advisors, non-employee staff and consultants, including legal\nand financial advisors.\n2. Duties.\n2.1 Restrictions on Use and Disclosure Each Receiving Party agrees that it shall hold the Disclosing Party's Confidential\nInformation in secrecy and confidence and shall not disclose any of the Disclosing Party's Confidential Information to a\nthird party, other than the Receiving Party's Representatives as permitted by Section 2.2 below, nor use it for any purpose\nother than the Purpose, without the express\n1 of 5\nConfidential\nwritten consent of the Disclosing Party. Each Receiving Party agrees to use at least the same degree of care to prevent any\nunauthorized access, disclosure or publication of the Confidential Information of the Disclosing Party as the Receiving\nParty uses to protect its own valuable Confidential Information but in no event less than a commercially reasonable degree\nof care.\n2.2 Disclosures to Representatives The Receiving Party shall only disclose such Confidential Information to those\nRepresentatives who have a need to know such Confidential Information for the Purpose. All Representatives to whom the\nConfidential Information is disclosed shall be subject to legally binding nondisclosure and nonuse restrictions that are at\nleast as restrictive as the terms of this A greement. Each Party, as a Receiving Party hereto, shall be responsible for the acts\nand omissions of its respective Representatives under this A greement as if such acts and omissions were performed (or not\nperformed) by the Receiving Party. If an act or omission of a Representative of a Receiving Party would, if committed by\nthe Receiving Party, constitute a breach of this greement, such act or omission shall constitute a breach of this A greement\nby such Receiving Party.\n2.3 Form of Information. Confidential Information may be disclosed orally, visually, or in a tangible or electronic written form.\nConfidential Information may be disclosed directly or indirectly, by Disclosing Party or the Disclosing Party's\nRepresentatives to the Receiving Party or the Receiving Party's Representatives.\n2.4 A ttorney-Client Privilege Nothing in this A greement obligates either Party to reveal material subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege. However, to the extent that any Confidential Information\nmay include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege\nconcerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding\nthat the sharing, whether inadvertent or intentional, of such material is not intended to, and shall not, waive or diminish in\nany way the confidentiality of such material or its continued protection under the attorney-client privilege, work product\ndoctrine or other applicable privilege. All Confidential Information provided by either Party that is entitled to protection\nunder the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such\nprotection under these privileges, this A greement, and under the joint defense doctrine.\n2.5 Other Information Neither Company nor Kite shall, without the other party's consent, disclose to any other person (except\nfor Representatives as permitted by Section 2.1 and 2.2 above) either the existence of this A greement, the fact that\ninvestigations, discussions or negotiations are or may be taking place concerning a possible transaction or any facts related\nthereto ("Other Information").\n3.\nExceptions and Other Matters.\n3.1 Exceptions. Notwithstanding anything to the contrary in this Agreement, Confidentia Information does not include any\ninformation that:\n(a) is known by the Receiving Party prior to the time of its receipt, such prior knowledge being documented by written\nevidence predating the date that such information was disclosed hereunder;\n(b)\nis at the time of disclosure or thereafter becomes published or otherwise part of the public domain without breach of\nthis A greement by the Receiving Party;\n(c)\nis disclosed to the Receiving Party by a third party who is not under an obligation to maintain the confidentiality of the\ninformation; or\n(d)\nis independently developed by the Receiving Party without any use of or reference to Confidential Information of the\nDisclosing Party, such independent development being documented by contemporaneous written evidence.\n2 of 5\nConfidential\n3.2 Partial Disclosures; Combinations. Specific aspects or details of Confidential Information shall not be deemed to be within\nthe public domain or in the possession of a Receiving Party merely because the Confidential Information is embraced by\nmore general information in the public domain or in the possession of such party Further, any combination of individual\nelements of Confidential Information shall be considered Confidential Information and shall not be considered in the public\ndomain or in the possession of a Receiving Party merely because one or more individual elements of such combination are\nin the public domain or in the possession of such Party; rather such combination shall only be considered in the public\ndomain or in the possession of a Receiving Party if the combination of each of the individual elements of the combination is\nin the public domain or in the possession of the Receiving Party.\n3.3 Disclosure Required by Court Order or Government. Notwithstanding anything in this A greement to the contrary, Receiving\nParty may disclose Confidential Information of the Disclosing Party and Other Information to the extent disclosure is\nrequired by applicable law, rule, regulation, governmental or court order, pursuant to subpoena or other governmental\nauthority, provided that the Receiving Party shall promptly inform the Disclosing Party in writing of such disclosure\nrequirement so that the Disclosing Party may seek a protective order or other appropriate remedy. The Receiving Party shall\nreasonably cooperate with Disclosing Party in connection with the Disclosing Party's efforts to obtain any such order or\nother remedy. In the event that no such protective order or other remedy is obtained, then the Receiving Party may furnish\nonly that portion of the Confidentia Information which the Receiving Party is advised by counsel (including its internal\nlegal counsel) that it is legally required to disclose.\n3.4 No Representation or Warranty By Discloser. The Disclosing Party makes no express or implied representation or warranty\nas to the accuracy, completeness or utility of its Confidentia Information THE RECEIVING PARTY ACKNOWLEDGES\nTHAT THE CONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY IS PROVIDED "AS WITHOUT\nANY WARRANTY XPRESS OR IMPLIED.\n3.5 No License Implied. This Agreement shall not be construed to grant to Receiving Party any license or other rights with\nrespect to the Confidential Information.\n3.6 Ownership; Return/Destruction. All Confidential Information and all materials containing Confidential Information that are\ndelivered to the Receiving Party by the Disclosing Party or the Disclosing Party's Representatives under this A greement are\nand remain the sole and exclusive property of the Disclosing Party. Upon written request of the Disclosing Party, the\nReceiving Party shall, at its own cost and expense, promptly destroy or return to the Disclosing Party all such materials (if\nreturned, in the medium provided by Disclosing Party) and destroy all copies of the foregoing or any portion thereof;\nprovided, however, that Receiving Party may retain one copy of the foregoing materials in a secure location for\nrecord-keeping purposes. Neither the Receiving Party nor any of its Representatives shall be required to delete or destroy\nany electronic back-up tapes or other electronic back-up files that have been created solely by their automatic or routine\narchiving and back-up procedures, to the extent created and retained in a manner consistent with its or their standard\narchiving and back-up procedures.\n4.\nTerm and Termination.\n4.1 Term. The term of this A greement during which Confidential Information may be disclosed by one Party to the other Party\nshall begin on the Effective Date and end five (5) years after the Effective Date, unless extended by mutual agreement.\n4.2 Survival The Receiving Party's obligations with respect to Confidential Information under Section 2 shall survive\ntermination or expiration of this greement, and shall expire seven (7) years from the Effective Date.\n3 of 5\nConfidential\n5. Miscellaneous.\n5.1 NO Future Obligations Nothing in this A greement shall be deemed to create any obligation on the part of either Party to\ncontinue discussions or to enter into a further agreement. Either party may terminate discussions or negotiations at any time\n5.2 ssignment. Neither this A greement nor the obligations hereunder may be assigned or otherwise transferred by a Party\nwithout written consent of the other Party, except in connection with the sale of all or substantially all of a Party' assets,\nequity or business or a merger, reorganization or consolidation involving at least fifty percent (50%) or more of the voting\nequity securities of the Party. This A greement shall be binding upon the parties, their successors and their permitted assigns.\n5.3 A pplicable Law. This A greement shall be governed by and construed in accordance with the laws of the State of California\nwithout reference to its rules of conflicts of laws.\n5.4 Transfer Restrictions Under Export Control Laws. Each Party agrees that it and its Representatives shall comply with any\napplicable export control laws, rules and regulations relating to the export of technical information, materials or products in\nconnection with any disclosure of Confidential Information under this Agreement.\n5.5 Notices. Each notice required or permitted hereunder shall be in writing and sufficient if delivered personally, sent by a\nnationally-recognized overnight courier or sent by registered or certified mail, postage prepaid, return receipt requested, to\nthe Parties at the addresses indicated in the introductory paragraph of this A greement, to the attention of the signatories\nbelow, with a copy, in the case of Company, to the General Counsel. Either Party may change its address by giving the\nother Party written notice, delivered in accordance with this Section 5.5.\n5.6 Waivers and A mendments; Preservation of Remedies. This A greement may be amended, or the terms and conditions may\nbe waived, only by a written agreement signed by both Parties. No delay on the part of any Party in exercising any right\nhereunder shall operate as a waiver, nor shall any partial exercise of any right hereunder preclude any other exercise thereof.\nThe rights and remedies herein are cumulative and are not exclusive of any rights or remedies which any Party may\notherwise have at law or in equity.\n5.7 Injunctive Relief The Parties acknowledge that a breach of this A greement may result in irreparable harm and damages to a\nParty in an amount difficult to ascertain and which cannot be adequately compensated by a monetary award. A ccordingly,\nin addition to any of the relief to which any Party may be entitled under this greement, at law or in equity, such Party shall\nbe entitled to seek temporary and permanent injunctive relief from any breach or threatened breach without the requirement\nof the Party bringing such action to post any bond or other security with the court in connection therewith.\n5.8 Entire A greement; Severability. This A greement constitutes the entire understanding of the Parties with respect to the\nsubject matter hereof and any express or implied agreements, either oral or written, are superseded by the terms of this\nA greement. If any one or more provisions of this A greement is held invalid, illegal or unenforceable in any respect by a\ncourt having competent jurisdiction, the validity, legality and enforceability of this A greement and the remaining provisions\ncontained herein shall not in any way be affected or impaired thereby.\n5.9 Counterparts. This A greement may be executed in counterparts, each of which shall be an original as against either Party\nwhose signature appears thereon, but all of which taken together shall constitute but one and the same instrument. An\nexecuted facsimile or electronic scanned copy of this A greement shall have the same force and effect as an original.\n4 of 5\nConfidential\nKITE PHARMA, INC.\nGILEAD SCIENCES, INC.\nBy:\n/s/ Veer Bhavnagri\nBy: /s/ Elizabeth P. Bhatt\nName:\nVeer Bhavnagr\nNamlelizabeth Bhatt\nVice President, Corporate\nTitle:\nVP Corporate Counsel\nTitleD eDevelopment\nDate:\nFebruary 10, 2017\nDateFebruary 15, 2017\n5 of 5	Exhibit (e)(2)\nConfidential\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (“Agreement”) is effective as of February 10, 2017 (“Effective Date”), between Kite\nPharma, Inc., a Delaware corporation having a place of business at 2225 Colorado Avenue, Santa Monica, CA 90404 (“Kite”) and\nGilead Sciences, Inc., a Delaware corporation having a place of business at 333 Lakeside Drive, Foster City, CA 94404\n(“Company”). Kite and Company may be referred to herein individually as a “Party” and collectively as the “Parties.”\nThe Parties desire to exchange Confidential Information (as defined below) for the Purpose (as defined below) and desire that their\nrespective Confidential Information be maintained in accordance with this Agreement. Therefore, the Parties agree as follows:\n1. Definitions.\n1.1 “Affiliate” means, with respect to a Party, any person, corporation or other entity that directly or indirectly controls, is\ncontrolled by, or is under common control with such Party. For purposes of this definition, “control” means possession of\nthe power to direct the management of such entity or person, whether through ownership of more than fifty percent (50%)\nof voting securities, by contract or otherwise.\n1.2 “Confidential Information” means any and all information and/or data disclosed to the Receiving Party (as defined below)\nby the Disclosing Party (as defined below) under this Agreement, and may include, without limitation, know-how, data,\ndesigns, plans, specifications, protocols, documents, trade secrets, ideas, concepts, products, processes, prototypes,\nformulas, works-in-progress, systems, technologies, manufacturing or marketing techniques, business or financial\ninformation; provided, however, that Confidential Information shall not include, and neither party shall disclose to the other\nparty, any non-publicly disclosed chemical structures of its compounds or sequence information, including amino acid and\nnucleic acid sequences, of its proteins, molecules or other proprietary substances, unless such disclosure is requested in\nadvance in writing by the Receiving Party and thereafter later agreed to in writing by both parties, in which case such\ndisclosed chemical structures and/or sequence information (as specifically indicated in any such subsequent writing) shall\nbe deemed Confidential Information of the Disclosing Party under this Agreement.\n1.3 “Disclosing Party” means the Party or its Representatives divulging Confidential Information to the Receiving Party (as\ndefined below).\n1.4 “Purpose” means to discuss, evaluate, negotiate and possibly enter into a business transaction involving Kite (and/or any of\nits Affiliates) and the Company (and/or any of its Affiliates).\n1.5 “Receiving Party” means the Party or its Representatives receiving Confidential Information from the Disclosing Party.\n1.6 “Representatives” means, with respect to a Party, such Party’s Affiliates and its (and its Affiliates’) respective officers\n(including directors), trustees, employees, agents, professional advisors, non-employee staff and consultants, including legal\nand financial advisors.\n2. Duties.\n2.1 Restrictions on Use and Disclosure. Each Receiving Party agrees that it shall hold the Disclosing Party’s Confidential\nInformation in secrecy and confidence and shall not disclose any of the Disclosing Party’s Confidential Information to a\nthird party, other than the Receiving Party’s Representatives as permitted by Section 2.2 below, nor use it for any purpose\nother than the Purpose, without the express\n1of5\nConfidential\nwritten consent of the Disclosing Party. Each Receiving Party agrees to use at least the same degree of care to prevent any\nunauthorized access, disclosure or publication of the Confidential Information of the Disclosing Party as the Receiving\nParty uses to protect its own valuable Confidential Information but in no event less than a commercially reasonable degree\nof care.\n2.2 Disclosures to Representatives. The Receiving Party shall only disclose such Confidential Information to those\nRepresentatives who have a need to know such Confidential Information for the Purpose. All Representatives to whom the\nConfidential Information is disclosed shall be subject to legally binding nondisclosure and nonuse restrictions that are at\nleast as restrictive as the terms of this Agreement. Each Party, as a Receiving Party hereto, shall be responsible for the acts\nand omissions of its respective Representatives under this Agreement as if such acts and omissions were performed (or not\nperformed) by the Receiving Party. If an act or omission of a Representative of a Receiving Party would, if committed by\nthe Receiving Party, constitute a breach of this Agreement, such act or omission shall constitute a breach of this Agreement\nby such Receiving Party.\n2.3 Form of Information. Confidential Information may be disclosed orally, visually, or in a tangible or electronic written form.\nConfidential Information may be disclosed directly or indirectly, by Disclosing Party or the Disclosing Party’s\nRepresentatives to the Receiving Party or the Receiving Party’s Representatives.\n2.4 Attorney-Client Privilege. Nothing in this Agreement obligates either Party to reveal material subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege. However, to the extent that any Confidential Information\nmay include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege\nconcerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding\nthat the sharing, whether inadvertent or intentional, of such material is not intended to, and shall not, waive or diminish in\nany way the confidentiality of such material or its continued protection under the attorney-client privilege, work product\ndoctrine or other applicable privilege. All Confidential Information provided by either Party that is entitled to protection\nunder the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such\nprotection under these privileges, this Agreement, and under the joint defense doctrine.\n2.5 Other Information. Neither Company nor Kite shall, without the other party’s consent, disclose to any other person (except\nfor Representatives as permitted by Section 2.1 and 2.2 above) either the existence of this Agreement, the fact that\ninvestigations, discussions or negotiations are or may be taking place concerning a possible transaction or any facts related\nthereto (“Other Information”).\n3. Exceptions and Other Matters.\n3.1 Exceptions. Notwithstanding anything to the contrary in this Agreement, Confidential Information does not include any\ninformation that:\n(a) is known by the Receiving Party prior to the time of its receipt, such prior knowledge being documented by written\nevidence predating the date that such information was disclosed hereunder;\n(b) is at the time of disclosure or thereafter becomes published or otherwise part of the public domain without breach of\nthis Agreement by the Receiving Party;\n(c) is disclosed to the Receiving Party by a third party who is not under an obligation to maintain the confidentiality of the\ninformation; or\n(d) is independently developed by the Receiving Party without any use of or reference to Confidential Information of the\nDisclosing Party, such independent development being documented by contemporaneous written evidence.\n2of5\nConfidential\n3.2 Partial Disclosures; Combinations. Specific aspects or details of Confidential Information shall not be deemed to be within\nthe public domain or in the possession of a Receiving Party merely because the Confidential Information is embraced by\nmore general information in the public domain or in the possession of such party. Further, any combination of individual\nelements of Confidential Information shall be considered Confidential Information and shall not be considered in the public\ndomain or in the possession of a Receiving Party merely because one or more individual elements of such combination are\nin the public domain or in the possession of such Party; rather such combination shall only be considered in the public\ndomain or in the possession of a Receiving Party if the combination of each of the individual elements of the combination is\nin the public domain or in the possession of the Receiving Party.\n3.3 Disclosure Required by Court Order or Government. Notwithstanding anything in this Agreement to the contrary, Receiving\nParty may disclose Confidential Information of the Disclosing Party and Other Information to the extent disclosure is\nrequired by applicable law, rule, regulation, governmental or court order, pursuant to subpoena or other governmental\nauthority, provided that the Receiving Party shall promptly inform the Disclosing Party in writing of such disclosure\nrequirement so that the Disclosing Party may seek a protective order or other appropriate remedy. The Receiving Party shall\nreasonably cooperate with Disclosing Party in connection with the Disclosing Party’s efforts to obtain any such order or\nother remedy. In the event that no such protective order or other remedy is obtained, then the Receiving Party may furnish\nonly that portion of the Confidential Information which the Receiving Party is advised by counsel (including its internal\nlegal counsel) that it is legally required to disclose.\n3.4 No Representation or Warranty By Discloser. The Disclosing Party makes no express or implied representation or warranty\nas to the accuracy, completeness or utility of its Confidential Information. THE RECEIVING PARTY ACKNOWLEDGES\nTHAT THE CONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY IS PROVIDED “AS IS,” WITHOUT\nANY WARRANTY, EXPRESS OR IMPLIED.\n3.5 No License Implied. This Agreement shall not be construed to grant to Receiving Party any license or other rights with\nrespect to the Confidential Information.\n3.6 Ownership; Return/Destruction. All Confidential Information and all materials containing Confidential Information that are\ndelivered to the Receiving Party by the Disclosing Party or the Disclosing Party’s Representatives under this Agreement are\nand remain the sole and exclusive property of the Disclosing Party. Upon written request of the Disclosing Party, the\nReceiving Party shall, at its own cost and expense, promptly destroy or return to the Disclosing Party all such materials (if\nreturned, in the medium provided by Disclosing Party) and destroy all copies of the foregoing or any portion thereof;\nprovided, however, that Receiving Party may retain one copy of the foregoing materials in a secure location for\nrecord-keeping purposes. Neither the Receiving Party nor any of its Representatives shall be required to delete or destroy\nany electronic back-up tapes or other electronic back-up files that have been created solely by their automatic or routine\narchiving and back-up procedures, to the extent created and retained in a manner consistent with its or their standard\narchiving and back-up procedures.\n4. Term and Termination.\n4.1 Term. The term of this Agreement during which Confidential Information may be disclosed by one Party to the other Party\nshall begin on the Effective Date and end five (5) years after the Effective Date, unless extended by mutual agreement.\n4.2 Survival. The Receiving Party’s obligations with respect to Confidential Information under Section 2 shall survive\ntermination or expiration of this Agreement, and shall expire seven (7) years from the Effective Date.\n3of5\nConfidential\n5. Miscellaneous.\n5.1 No Future Obligations. Nothing in this Agreement shall be deemed to create any obligation on the part of either Party to\ncontinue discussions or to enter into a further agreement. Either party may terminate discussions or negotiations at any time\n5.2 Assignment. Neither this Agreement nor the obligations hereunder may be assigned or otherwise transferred by a Party\nwithout written consent of the other Party, except in connection with the sale of all or substantially all of a Party’s assets,\nequity or business or a merger, reorganization or consolidation involving at least fifty percent (50%) or more of the voting\nequity securities of the Party. This Agreement shall be binding upon the parties, their successors and their permitted assigns.\n5.3 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California\nwithout reference to its rules of conflicts of laws.\n5.4 Transfer Restrictions Under Export Control Laws. Each Party agrees that it and its Representatives shall comply with any\napplicable export control laws, rules and regulations relating to the export of technical information, materials or products in\nconnection with any disclosure of Confidential Information under this Agreement.\n5.5 Notices. Each notice required or permitted hereunder shall be in writing and sufficient if delivered personally, sent by a\nnationally-recognized overnight courier or sent by registered or certified mail, postage prepaid, return receipt requested, to\nthe Parties at the addresses indicated in the introductory paragraph of this Agreement, to the attention of the signatories\nbelow, with a copy, in the case of Company, to the General Counsel. Either Party may change its address by giving the\nother Party written notice, delivered in accordance with this Section 5.5 .\n5.6 Waivers and Amendments; Preservation of Remedies. This Agreement may be amended, or the terms and conditions may\nbe waived, only by a written agreement signed by both Parties. No delay on the part of any Party in exercising any right\nhereunder shall operate as a waiver, nor shall any partial exercise of any right hereunder preclude any other exercise thereof.\nThe rights and remedies herein are cumulative and are not exclusive of any rights or remedies which any Party may\notherwise have at law or in equity.\n5.7 Injunctive Relief. The Parties acknowledge that a breach of this Agreement may result in irreparable harm and damages to a\nParty in an amount difficult to ascertain and which cannot be adequately compensated by a monetary award. Accordingly,\nin addition to any of the relief to which any Party may be entitled under this Agreement, at law or in equity, such Party shall\nbe entitled to seek temporary and permanent injunctive relief from any breach or threatened breach without the requirement\nof the Party bringing such action to post any bond or other security with the court in connection therewith.\n5.8 Entire Agreement; Severability. This Agreement constitutes the entire understanding of the Parties with respect to the\nsubject matter hereof and any express or implied agreements, either oral or written, are superseded by the terms of this\nAgreement. If any one or more provisions of this Agreement is held invalid, illegal or unenforceable in any respect by a\ncourt having competent jurisdiction, the validity, legality and enforceability of this Agreement and the remaining provisions\ncontained herein shall not in any way be affected or impaired thereby.\n5.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be an original as against either Party\nwhose signature appears thereon, but all of which taken together shall constitute but one and the same instrument. An\nexecuted facsimile or electronic scanned copy of this Agreement shall have the same force and effect as an original.\n4of5\nConfidential\nKITE PHARMA, INC.\nGILEAD SCIENCES, INC.\nBy:\n/s/ Veer Bhavnagri\nBy: /s/ Elizabeth P. Bhatt\nName:\nVeer Bhavnagri\nName:\nElizabeth Bhatt\nTitle:\nVP Corporate Counsel\nTitle:\nVice President, Corporate\nDevelopment\nDate:\nFebruary 10, 2017\nDate:February 15, 2017\n5of5
+ec350f00f01c1054e5a47246744b4626.pdf	effective_date jurisdiction party term	EXHIBIT C\nFORM OF NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nThis Non-Competition and Non-Disclosure Agreement (the “Agreement”), is dated as of December 17, 2018, by and between\n, an individual resident of the State of Georgia (“Director”), and Colony Bankcorp, Inc., a Georgia corporation\n(“CBAN”). All capitalized terms used but not defined herein shall have the meanings assigned to them in the Merger Agreement\n(defined below).\nRECITALS:\nWHEREAS, concurrently with the execution of this Agreement, CBAN and LBC Bancshares, Inc., a Georgia corporation (“LBC”),\nare entering into an Agreement and Plan of Merger (as such agreement may be subsequently amended or modified, the “Merger\nAgreement”), pursuant to which (i) LBC will merge with and into CBAN, with CBAN as the surviving entity, and (ii) Calumet Bank,\na Georgia state-chartered bank and a direct wholly owned subsidiary of LBC, will merge with and into Colony Bank, a Georgia\nstate-chartered bank and a direct wholly owned subsidiary of CBAN, with Colony Bank as the surviving bank (collectively, the\n“Merger”);\nWHEREAS, Director is a shareholder of LBC and, as a result of the Merger and pursuant to the transactions contemplated by the\nMerger Agreement, Director is expected to receive significant consideration in exchange for the shares of LBC Common Stock held\nby Director;\nWHEREAS, as of and prior to the date hereof, Director serves and has served as a member of the Board of Directors of LBC or\nCalumet Bank, and, therefore, Director has knowledge of the Confidential Information and Trade Secrets (each as hereinafter\ndefined);\nWHEREAS, as a result of the Merger, CBAN will succeed to all of the Confidential Information and Trade Secrets, for which\nCBAN as of the Effective Time will have paid valuable consideration and desires reasonable protection; and\nWHEREAS, it is a material prerequisite to the consummation of the Merger that each director of LBC and Calumet Bank, including\nDirector, enter into this Agreement.\nAGREEMENT:\nNOW, THEREFORE, in consideration of these premises and the mutual covenants and undertakings herein contained, CBAN and\nDirector, each intending to be legally bound, covenant and agree as follows:\nSection 1. Restrictive Covenants.\n(a) Director acknowledges that (i) CBAN has separately bargained for the restrictive covenants in this Agreement; and (ii) the types\nand periods of restrictions imposed by the covenants in this Agreement are fair and reasonable to Director and such restrictions will\nnot prevent Director from earning a livelihood.\n(b) Having acknowledged the foregoing, solely in the event that the Merger is consummated, Director covenants and agrees with\nCBAN as follows:\n(i) From and after the Effective Time, Director will not disclose or use any Confidential Information or Trade Secrets for so long as\nsuch information remains Confidential Information or a Trade Secret, as applicable, for any purpose, except for any disclosure that is\nrequired by applicable Law. In the event that Director is required by Law to disclose any Confidential Information, Director will:\n(A) if and to the extent permitted by such Law, provide CBAN with prompt notice of such requirement prior to the disclosure so that\nCBAN may waive the requirements of this Agreement or seek an appropriate protective order at CBAN’s sole expense; and (B) use\ncommercially reasonable efforts to obtain assurances that any Confidential Information disclosed will be accorded confidential\ntreatment. If, in the absence of a waiver or protective order, Director is nonetheless, in the opinion of his or her counsel, required to\ndisclose Confidential Information, disclosure may be made only as to that portion of the Confidential Information that counsel\nadvises Director is required to be disclosed.\n(ii) Except as expressly provided on Schedule I to this Agreement, for a period beginning at the Effective Time and ending two\n(2) years after the Effective Time, Director will not (except on behalf of or with the prior written consent of CBAN), on Director’s\nown behalf or in the service or on behalf of others, solicit or attempt to solicit any customer of CBAN, Colony Bank, LBC or\nCalumet Bank (each a “Protected Party”), including actively sought prospective customers of Calumet Bank as of the Effective Time,\nfor the purpose of providing products or services that are Competitive (as hereinafter defined) with those offered or provided by any\nProtected Party.\n(iii) Except as expressly provided on Schedule I to this Agreement, for a period beginning at the Effective Time and ending two\n(2) years after the Effective Time, Director will not (except on behalf of or with the prior written consent of CBAN), either directly or\nindirectly, on Director’s own behalf or in the service or on behalf of others, act as a director, manager, officer or employee of any\nbusiness which is the same as or essentially the same as the business conducted by any Protected Party and which has an office\nlocated within the Restricted Territory.\n(iv) For a period beginning at the Effective Time and ending two (2) years after the Effective Time, Director will not, on Director’s\nown behalf or in the service or on behalf of others, solicit or recruit or attempt to solicit or recruit, directly or by assisting others, any\nemployee of any Protected Party, whether or not such employee is a full-time employee or a temporary employee of such Protected\nParty, whether or not such employment is pursuant to a written agreement and whether or not such employment is for a determined\nperiod or is at will, to cease working for such Protected Party; provided that the foregoing will not prevent the placement of any\ngeneral solicitation for employment not specifically directed towards employees of any Protected Party or hiring any such person as a\nresult thereof.\n2\n(c) For purposes of this Section 1, the following terms shall be defined as set forth below:\n(i) “Competitive,” with respect to particular products or services, means products or services that are the same as or similar to the\nproducts or services of any Protected Party.\n(ii) “Confidential Information” means data and information:\n(A) relating to the business of LBC and its Subsidiaries, including Calumet Bank, regardless of whether the data or information\nconstitutes a Trade Secret;\n(B) disclosed to Director or of which Director became aware as a consequence of Director’s relationship with LBC and/or Calumet\nBank;\n(C) having value to LBC and/or Calumet Bank and, as a result of the consummation of the transactions contemplated by the Merger\nAgreement, CBAN and/or Colony Bank; and\n(D) not generally known to competitors of LBC or CBAN (including competitors to Calumet Bank or Colony Bank).\nConfidential Information shall include Trade Secrets, methods of operation, names of customers, price lists, financial information and\nprojections, personnel data and similar information; provided, however, that the terms “Confidential Information” and “Trade\nSecrets” shall not mean data or information that (x) has been disclosed to the public, except where such public disclosure has been\nmade by Director without authorization from LBC or CBAN, (y) has been independently developed and disclosed by others, or\n(z) has otherwise entered the public domain through lawful means.\n(iii) “Restricted Territory” means each county in Georgia where Calumet Bank operates a banking office at the Effective Time and\neach county contiguous to each of such counties.\n(iv) “Trade Secret” means information, without regard to form, including technical or nontechnical data, a formula, a pattern, a\ncompilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans or a list of\nactual or potential customers or suppliers, that is not commonly known by or available to the public and which information:\n(A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper\nmeans by, other persons who can obtain economic value from its disclosure or use; and\n(B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.\n3\n(d) Director acknowledges that irreparable loss and injury would result to CBAN upon the breach of any of the covenants contained\nin this Section 1 and that damages arising out of such breach would be difficult to ascertain. Director hereby agrees that, in addition\nto all other remedies provided at law or in equity, CBAN may petition and obtain from a court of law or equity, without the necessity\nof proving actual damages and without posting any bond or other security, both temporary and permanent injunctive relief to prevent\na breach by Director of any covenant contained in this Section 1, and shall be entitled to an equitable accounting of all earnings,\nprofits and other benefits arising out of any such breach. In the event that the provisions of this Section 1 should ever be determined\nto exceed the time, geographic or other limitations permitted by applicable Law, then such provisions shall be modified so as to be\nenforceable to the maximum extent permitted by Law. If such provision(s) cannot be modified to be enforceable, the provision(s)\nshall be severed from this Agreement to the extent unenforceable. The remaining provisions and any partially enforceable provisions\nshall remain in full force and effect.\nSection 2. Term; Termination. This Agreement may be terminated at any time by the written consent of the parties hereto, and this\nAgreement shall be automatically terminated upon the earlier of (i) termination of the Merger Agreement; (ii) two (2) years following\nthe Effective Time or (iii) upon a Change in Control of CBAN (as defined in Schedule I). For the avoidance of doubt, the provisions\nof Section 1 shall only become operative upon the consummation of the Merger but, in such event, shall survive the consummation of\nthe Merger until the earlier of (a) two (2) years after the Effective Time or (b) upon a Change in Control of CBAN. Upon termination\nof this Agreement, no party shall have any further obligations or liabilities hereunder, except that termination of this Agreement will\nnot relieve a breaching party from liability for any breach of any provision of this Agreement occurring prior to the termination of\nthis Agreement.\nSection 3. Notices. All notices, requests and other communications hereunder to a party shall be in writing and shall be deemed\nproperly given if delivered (a) personally, (b) by registered or certified mail (return receipt requested), with adequate postage prepaid\nthereon, (c) by properly addressed electronic mail delivery (with confirmation of delivery receipt), or (d) by reputable courier service\nto such party at its address set forth below, or at such other address or addresses as such party may specify from time to time by\nnotice in like manner to the parties hereto. All notices shall be deemed effective upon delivery.\nIf to CBAN:\nColony Bankcorp, Inc.\n115 South Grant Street\nFitzgerald, GA 31750\nAttn: T. Heath Fountain, President & CEO\nE-mail: heath.fountain@colonybank.com\nIf to Director:\nThe address of Director’s principal residence as it\nappears in LBC’s records as of the date hereof, as\nsubsequently modified by Director’s provision of notice\nregarding the same to CBAN.\nSection 4. Governing Law; Jurisdiction. This Agreement shall be governed by, and interpreted and enforced in accordance with, the\ninternal, substantive laws of the State of Georgia, without regard for conflict of law provisions. Any civil action, counterclaim,\nproceeding or litigation arising out of or relating to this Agreement shall be brought in the courts of record of the\n4\nState of Georgia in Ben Hill County or the United States District Court, Middle District of Georgia. Each party consents to the\njurisdiction of such Georgia court in any such civil action, counterclaim, proceeding or litigation and waives any objection to the\nlaying of venue of any such civil action, counterclaim, proceeding or litigation in such Georgia court. Service of any court paper may\nbe effected on such party by mail, as provided in this letter, or in such other manner as may be provided under applicable Laws.\nSection 5. Modification and Waiver. No provision of this Agreement may be modified, waived or discharged unless such waiver,\nmodification or discharge is agreed to in writing signed by Director and CBAN. No waiver by either party hereto at any time of any\nbreach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other\nparty shall be deemed a waiver of dissimilar provisions or conditions at the same or any prior subsequent time.\nSection 6. Severability. In the event that any one or more provisions of this Agreement shall for any reason be held invalid, illegal or\nunenforceable in any respect, by any court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any\nother provisions of this Agreement and the parties shall use their commercially reasonable efforts to substitute a valid, legal and\nenforceable provision which, insofar as practical, implements the purposes and intents of this Agreement.\nSection 7. Counterparts. This Agreement may be executed and delivered by facsimile or by electronic data file and in one or more\ncounterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts\nhave been signed by each of the parties and delivered to the other party, it being understood that all parties need not sign the same\ncounterpart. Signatures delivered by facsimile or by electronic data file shall have the same effect as originals.\nSection 8. Entire Agreement. This Agreement represents the entire understanding of the parties hereto with reference to the\ntransactions contemplated hereby, and this Agreement supersedes any and all other oral or written agreements heretofore made.\nSection 9. Construction; Interpretation. Whenever the singular number is used in this Agreement and when required by the context,\nthe same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice\nversa. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by\nthe words “without limitation.” The headings in this Agreement are for convenience only and are in no way intended to describe,\ninterpret, define or limit the scope, extent or intent of this Agreement or any of its provisions.\n5\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written above.\nCOLONY BANKCORP, INC.\nBy:\nName:\nT. Heath Fountain\nTitle:\nPresident and Chief\nExecutive Officer\nDIRECTOR\nSignature Page – Non-Competition and Non-Disclosure Agreement	EXHIBIT C\nFORM OF NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nThis Non-Competition and Non-Disclosure Agreement (the ”A ggement"), is dated as of December 17, 2018, by and between\n, an individual resident of the State of Georgia (”Director”), and Colony Bankcorp, Inc., a Georgia corporation\n(”w”). All capitalized terms used but not defined herein shall have the meanings assigned to them in the Merger Agreement\n(defined below).\nRECITALS:\nWHEREAS, concurrently with the execution of this Agreement, CBAN and LBC Bancshares, Inc., a Georgia corporation (”E"),\nare entering into an Agreement and Plan of Merger (as such agreement may be subsequently amended or modified, the ”Me;\nAgreement”), pursuant to which (i) LBC will merge with and into CBA N, with CBAN as the surviving entity, and (ii) Calumet Bank,\na Georgia state- chartered bank and a direct wholly owned subsidiary of LBC, will merge with and into Colony Bank, a Georgia\nstate chartered bank and a direct wholly owned subsidiary of CBA N, with Colony Bank as the surviving bank (collectively, the\n”Me ;[e I);\nWHEREAS, Director is a shareholder of LBC and, as a result of the Merger and pursuant to the transactions contemplated by the\nMerger Agreement, Director is expected to receive significant consideration in exchange for the shares of LBC Common Stock held\nby Director;\nWHEREAS, as of and prior to the date hereof, Director serves and has served as a member of the Board of Directors of LBC or\nCalumet Bank, and, therefore, Director has knowledge of the Confidential Information and Trade Secrets (each as hereinafter\ndefined);\nWHEREAS, as a result of the Merger, CBAN will succeed to all of the Confidential Information and Trade Secrets, for which\nCBAN as of the Effective Time will have paid valuable consideration and desires reasonable protection; and\nWHEREAS, it is a material prerequisite to the consummation of the Merger that each director of LBC and Calumet Bank, including\nDirector, enter into this A greement.\nAGREEMENT:\nNOW, THEREFORE, in consideration of these premises and the mutual covenants and undertakings herein contained, CBAN and\nDirector, each intending to be legally bound, covenant and agree as follows:\nSection 1. Restrictive Covenants.\n(a) Director acknowledges that (i) CBAN has separately bargained for the restrictive covenants in this Agreement; and (ii) the types\nand periods of restrictions imposed by the covenants in this Agreement are fair and reasonable to Director and such restrictions will\nnot prevent Director from earning a livelihood.\n \n(b) Having acknowledged the foregoing, solely in the event that the Merger is consummated, Director covenants and agrees with\nCBAN as follows:\n(i) From and after the Effective Time, Director will not disclose or use any Confidential Information or Trade Secrets for so long as\nsuch information remains Confidential Information or a Trade Secret, as applicable, for any purpose, except for any disclosure that is\nrequired by applicable Law. In the event that Director is required by Law to disclose any Confidential Information, Director will:\n(A) if and to the extent permitted by such Law, provide CBAN with prompt notice of such requirement prior to the disclosure so that\nCBAN may waive the requirements of this Agreement or seek an appropriate protective order at CBA N’ s sole expense; and (B) use\ncommercially reasonable efforts to obtain assurances that any Confidential Information disclosed will be accorded confidential\ntreatment. If, in the absence of a waiver or protective order, Director is nonetheless, in the opinion of his or her counsel, required to\ndisclose Confidential Information, disclosure may be made only as to that portion of the Confidential Information that counsel\nadvises Director is required to be disclosed.\n(ii) Except as expressly provided on Schedule I to this Agreement, for a period beginning at the Effective Time and ending two\n(2) years after the Effective Time, Director will not (except on behalf of or with the prior written consent of CBA N), on Director’ s\nown behalf or in the service or on behalf of others, solicit or attempt to solicit any customer of CBA N, Colony Bank, LBC or\nCalumet Bank (each a ”Protected Pam”), including actively sought prospective customers of Calumet Bank as of the Effective Time,\nfor the purpose of providing products or services that are Competitive (as hereinafter defined) with those offered or provided by any\nProtected Party.\n(iii) Except as expressly provided on Schedule I to this Agreement, for a period beginning at the Effective Time and ending two\n(2) years after the Effective Time, Director will not (except on behalf of or with the prior written consent of CBA N), either directly or\nindirectly, on Director’ s own behalf or in the service or on behalf of others, act as a director, manager, officer or employee of any\nbusiness which is the same as or essentially the same as the business conducted by any Protected Party and which has an office\nlocated within the Restricted Territory.\n(iv) For a period beginning at the Effective Time and ending two (2) years after the Effective Time, Director will not, on Director’ s\nown behalf or in the service or on behalf of others, solicit or recruit or attempt to solicit or recruit, directly or by assisting others, any\nemployee of any Protected Party, whether or not such employee is a full-time employee or a temporary employee of such Protected\nParty, whether or not such employment is pursuant to a written agreement and whether or not such employment is for a determined\nperiod or is at will, to cease working for such Protected Party; provided that the foregoing will not prevent the placement of any\ngeneral solicitation for employment not specifically directed towards employees of any Protected Party or hiring any such person as a\nresult thereof.\n \n(c) For purposes of this Section 1, the following terms shall be defined as set forth below:\n(i) ” ompetitive," with respect to particular products or services, means products or services that are the same as or similar to the\nproducts or services of any Protected Party.\n(ii) ”Confidential Information” means data and information:\n(A) relating to the business of LBC and its Subsidiaries, including Calumet Bank, regardless of whether the data or information\nconstitutes a Trade Secret;\n(B) disclosed to Director or of which Director became aware as a consequence of Director’ s relationship with LBC and/or Calumet\nB ank;\n(C) having value to LBC and/or Calumet Bank and, as a result of the consummation of the transactions contemplated by the Merger\nA greement, CBA N and/or Colony B ank; and\n(D) not generally known to competitors of LBC or CBAN (including competitors to Calumet Bank or Colony Bank).\nConfidential Information shall include Trade Secrets, methods of operation, names of customers, price lists, financial information and\nprojections, personnel data and similar information; provided, however, that the terms ”Confidential Information” and ”Trade\nSecrets" shall not mean data or information that (X) has been disclosed to the public, except where such public disclosure has been\nmade by Director without authorization from LBC or CBA N, (y) has been independently developed and disclosed by others, or\n(2) has otherwise entered the public domain through lawful means.\n(iii) ”Restricted Territory” means each county in Georgia where Calumet Bank operates a banking office at the Effective Time and\neach county contiguous to each of such counties.\n(iv) ”Trade Secret” means information, without regard to form, including technical or nontechnical data, a formula, a pattern, a\ncompilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans or a list of\nactual or potential customers or suppliers, that is not commonly known by or available to the public and which information:\n(A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper\nmeans by, other persons who can obtain economic value from its disclosure or use; and\n(B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.\n \n(d) Director acknowledges that irreparable loss and injury would result to CBAN upon the breach of any of the covenants contained\nin this Section 1 and that damages arising out of such breach would be difficult to ascertain. Director hereby agrees that, in addition\nto all other remedies provided at law or in equity, CBAN may petition and obtain from a court of law or equity, without the necessity\nof proving actual damages and without posting any bond or other security, both temporary and permanent injunctive relief to prevent\na breach by Director of any covenant contained in this Section 1, and shall be entitled to an equitable accounting of all earnings,\nprofits and other benefits arising out of any such breach. In the event that the provisions of this Section 1 should ever be determined\nto exceed the time, geographic or other limitations permitted by applicable Law, then such provisions shall be modified so as to be\nenforceable to the maximum extent permitted by Law. If such provision(s) cannot be modified to be enforceable, the provision(s)\nshall be severed from this Agreement to the extent unenforceable. The remaining provisions and any partially enforceable provisions\nshall remain in full force and effect.\nSection 2. Te_rm; Termination. This Agreement may be terminated at any time by the written consent of the parties hereto, and this\nAgreement shall be automatically terminated upon the earlier of (i) termination of the Merger Agreement; (ii) two (2) years following\nthe Effective Time or (iii) upon a Change in Control of CBAN (as defined in Schedule I). For the avoidance of doubt, the provisions\nof Section 1 shall only become operative upon the consummation of the Merger but, in such event, shall survive the consummation of\nthe Merger until the earlier of (a) two (2) years after the Effective Time or (b) upon a Change in Control of CBA N. Upon termination\nof this A greement, no party shall have any further obligations or liabilities hereunder, except that termination of this A greement will\nnot relieve a breaching party from liability for any breach of any provision of this Agreement occurring prior to the termination of\nthis A greement.\nSection 3. Notices. All notices, requests and other communications hereunder to a party shall be in writing and shall be deemed\nproperly given if delivered (a) personally, (b) by registered or certified mail (return receipt requested), with adequate postage prepaid\nthereon, (c) by properly addressed electronic mail delivery (with confirmation of delivery receipt), or (d) by reputable courier service\nto such party at its address set forth below, or at such other address or addresses as such party may specify from time to time by\nnotice in like manner to the parties hereto. All notices shall be deemed effective upon delivery.\n \nIf to CBAN: Colony Bankcorp, Inc.\n115 South Grant Street\nFitzgerald, GA 31750\nAttn: T. Heath Fountain, President & CEO\nE-mail: heath.fountain@ colonybank.com\nIf to Director: The address of Director’ s principal residence as it\nappears in LBC's records as of the date hereof, as\nsubsequently modified by Director’ s provision of notice\nregarding the same to CBA N.\nSection 4. Governing Law; urisdiction. This Agreement shall be governed by, and interpreted and enforced in accordance with, the\ninternal, substantive laws of the State of Georgia, without regard for conflict of law provisions. Any civil action, counterclaim,\nproceeding or litigation arising out of or relating to this Agreement shall be brought in the courts of record of the\n \nState of Georgia in Ben Hill County or the United States District Court, Middle District of Georgia. Each party consents to the\njurisdiction of such Georgia court in any such civil action, counterclaim, proceeding or litigation and waives any objection to the\nlaying of venue of any such civil action, counterclaim, proceeding or litigation in such Georgia court. Service of any court paper may\nbe effected on such party by mail, as provided in this letter, or in such other manner as may be provided under applicable Laws.\nSection 5. Modification and Waiver. No provision of this A greement may be modified, waived or discharged unless such waiver,\nmodification or discharge is agreed to in writing signed by Director and CBA N. No waiver by either party hereto at any time of any\nbreach by the other party hereto of, or compliance with, any condition or provision of this A greement to be performed by such other\nparty shall be deemed a waiver of dissimilar provisions or conditions at the same or any prior subsequent time.\nSection 6. Severabilifl. In the event that any one or more provisions of this Agreement shall for any reason be held invalid, illegal or\nunenforceable in any respect, by any court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any\nother provisions of this Agreement and the parties shall use their commercially reasonable efforts to substitute a valid, legal and\nenforceable provision which, insofar as practical, implements the purposes and intents of this Agreement.\nSection 7. Counterparts. This Agreement may be executed and delivered by facsimile or by electronic data file and in one or more\ncounterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts\nhave been signed by each of the parties and delivered to the other party, it being understood that all parties need not sign the same\ncounterpart. Signatures delivered by facsimile or by electronic data file shall have the same effect as originals.\nSection 8. Entire Agreement. This Agreement represents the entire understanding of the parties hereto with reference to the\ntransactions contemplated hereby, and this Agreement supersedes any and all other oral or written agreements heretofore made.\nSection 9. Construction; Interpretation. Whenever the singular number is used in this Agreement and when required by the context,\nthe same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice\nversa. Whenever the words ”include,” ”includes" or ”including" are used in this Agreement, they shall be deemed to be followed by\nthe words ”without limitation.” The headings in this Agreement are for convenience only and are in no way intended to describe,\ninterpret, define or limit the scope, extent or intent of this Agreement or any of its provisions.\n \nIN WITNESS WHEREO F, the parties hereto have executed and delivered this Agreement as of the date first written above.\nCOLONY BANKCORP, INC.\nBy:\nName: m\nTitle: President and Chief\nExecutive Officer\nDIRECTOR\nSignature Page - Non-C ompetition and Non-Disclosure Agreement	EXHIBIT C\nFORM OF NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nThis Non-Competition and Non-Disclosure A greement (the greement"), is dated as of December 17, 2018, by and between\nan individual resident of the State of Georgia ("Director"), and Colony Bankcorp, Inc., a Georgia corporation\n("CBAN") All capitalized terms used but not defined herein shall have the meanings assigned to them in the Merger A greement\n(defined below).\nRECITALS:\nWHEREAS, concurrently with the execution of this A Agreement, CBAN and LBC Bancshares, Inc., a Georgia corporation ("LBC"),\nare entering into an A greement and Plan of Merger (as such agreement may be subsequently amended or modified, the "Merger\nAgreement"), pursuant to which (i) LBC will merge with and into CBAN, with CBAN as the surviving entity, and (ii) Calumet Bank\na Georgia state-chartered bank and a direct wholly owned subsidiary of LBC, will merge with and into Colony Bank, a Georgia\nstate-chartered bank and a direct wholly owned subsidiary of CBAN, with Colony Bank as the surviving bank (collectively, the\n"Merger");\nWHEREAS, Director is a shareholder of LBC and, as a result of the Merger and pursuant to the transactions contemplated by the\nMerger greement, Director is expected to receive significant consideration in exchange for the shares of LBC Common Stock held\nby Director;\nWHEREAS, as of and prior to the date hereof, Director serves and has served as a member of the Board of Directors of LBC or\nCalumet Bank, and, therefore, Director has knowledge of the Confidential Information and Trade Secrets (each as hereinafter\ndefined);\nWHEREAS, as a result of the Merger, CBAN will succeed to all of the Confidential Information and Trade Secrets, for which\nCBAN as of the Effective Time will have paid valuable consideration and desires reasonable protection; and\nWHEREAS, it is a material prerequisite to the consummation of the Merger that each director of LBC and Calumet Bank, including\nDirector, enter into this A greement\nAGREEMENT:\nNOW, THEREFORE, in consideration of these premises and the mutual covenants and undertakings herein contained, CBAN and\nDirector, each intending to be legally bound, covenant and agree as follows:\nSection 1. Restrictive Covenants\n(a) Director acknowledges that (i) CBAN has separately bargained for the restrictive covenants in this Agreement; and (ii) the types\nand periods of restrictions imposed by the covenants in this greement are fair and reasonable to Director and such restrictions will\nnot prevent Director from earning a livelihood.\n(b) Having acknowledged the foregoing, solely in the event that the Merger is consummated, Director covenants and agrees with\nCBAN as follows:\n(i) From and after the Effective Time, Director will not disclose or use any Confidential Information or Trade Secrets for so long as\nsuch information remains Confidential Information or a Trade Secret, as applicable, for any purpose, except for any disclosure that is\nrequired by applicable Law. In the event that Director is required by Law to disclose any Confidential Information, Director will:\n(A) if and to the extent permitted by such Law, provide CBAN with prompt notice of such requirement prior to the disclosure so that\nCBAN may waive the requirements of this A greement or seek an appropriate protective order at CBAN's sole expense; and (B) use\ncommercially reasonable efforts to obtain assurances that any Confidential Information disclosed will be accorded confidential\ntreatment. If, in the absence of a waiver or protective order, Director is nonetheless, in the opinion of his or her counsel, required to\ndisclose Confidential Information, disclosure may be made only as to that portion of the Confidential Information that counsel\nadvises Director is required to be disclosed.\n(ii) Except as expressly provided on Schedule I to this A greement, for a period beginning at the Effective Time and ending two\n(2) years after the Effective Time, Director will not (except on behalf of or with the prior written consent of CBAN), on Director's\nown behalf or in the service or on behalf of others, solicit or attempt to solicit any customer of CBAN, Colony Bank, LBC or\nCalumet Bank (each a "Protected Party"), including actively sought prospective customers of Calumet Bank as of the Effective Time,\nfor the purpose of providing products or services that are Competitive (as hereinafter defined) with those offered or provided by any\nProtected Party.\n(iii) Except as expressly provided on Schedule I to this A greement, for a period beginning at the Effective Time and ending two\n(2) years after the Effective Time, Director will not (except on behalf of or with the prior written consent of CBAN), either directly or\nindirectly, on Director's own behalf or in the service or on behalf of others, act as a director, manager, officer or employee of any\nbusiness which is the same as or essentially the same as the business conducted by any Protected Party and which has an office\nlocated within the Restricted Territory.\n(iv) For a period beginning at the Effective Time and ending two (2) years after the Effective Time, Director will not, on Director's\nown behalf or in the service or on behalf of others, solicit or recruit or attempt to solicit or recruit, directly or by assisting others,\nany\nemployee of any Protected Party, whether or not such employee is a full-time employee or a temporary employee of such Protected\nParty, whether or not such employment is pursuant to a written agreement and whether or not such employment is for a determined\nperiod or is at will to cease working for such Protected Party; provided that the foregoing will not prevent the placement of any\ngeneral solicitation for employment not specifically directed towards employees of any Protected Party or hiring any such person as a\nresult thereof.\n2\n(c) For purposes of this Section 1, the following terms shall be defined as set forth below:\n(i) "Competitive," with respect to particular products or services, means products or services that are the same as or similar to the\nproducts or services of any Protected Party.\n(ii) "Confidential Information" means data and information:\n(A) relating to the business of LBC and its Subsidiaries, including Calumet Bank, regardless of whether the data or information\nconstitutes a Trade Secret;\n(B) disclosed to Director or of which Director became aware as a consequence of Director's relationship with LBC and/or Calumet\nBank;\n(C) having value to LBC and/or Calumet Bank and, as a result of the consummation of the transactions contemplated by the Merger\nAgreement, CBAN and/or Colony Bank; and\n(D) not generally known to competitors of LBC or CBAN (including competitors to Calumet Bank or Colony Bank).\nConfidential Information shall include Trade Secrets, methods of operation, names of customers, price lists, financial information and\nprojections, personnel data and similar information; provided, however, that the terms "Confidential Information" and "Trade\nSecrets" shall not mean data or information that (x) has been disclosed to the public, except where such public disclosure has been\nmade by Director without authorization from LBC or CBAN, (y) has been independently developed and disclosed by others, or\n(z) has otherwise entered the public domain through lawful means.\n(iii) "Restricted Territory" means each county in Georgia where Calumet Bank operates a banking office at the Effective Time and\neach county contiguous to each of such counties.\n(iv) "Trade Secret" means information, without regard to form, including technical or nontechnical data, a formula, a pattern, a\ncompilation, a program, a device, a method, a technique, a drawing, a process financial data, financial plans, product plans or a list of\nactual or potential customers or suppliers, that is not commonly known by or available to the public and which information:\n(A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper\nmeans by, other persons who can obtain economic value from its disclosure or use; and\n(B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.\n3\n(d) Director acknowledges that irreparable loss and injury would result to CBAN upon the breach of any of the covenants contained\nin this Section 1 and that damages arising out of such breach would be difficult to ascertain. Director hereby agrees that, in addition\nto all other remedies provided at law or in equity, CBAN may petition and obtain from a court of law or equity, without the necessity\nof proving actual damages and without posting any bond or other security, both temporary and permanent injunctive relief to prevent\na breach by Director of any covenant contained in this Section 1, and shall be entitled to an equitable accounting of all earnings,\nprofits and other benefits arising out of any such breach. In the event that the provisions of this Section 1 should ever be determined\nto exceed the time, geographic or other limitations permitted by applicable Law, then such provisions shall be modified so as to be\nenforceable to the maximum extent permitted by Law. If such provision(s) cannot be modified to be enforceable, the provision(s)\nshall be severed from this greement to the extent unenforceable. The remaining provisions and any partially enforceable provisions\nshall remain in full force and effect.\nSection 2. Term; Termination. This A greement may be terminated at any time by the written consent of the parties hereto, and this\nAgreement shall be automatically terminated upon the earlier of (i) termination of the Merger A greement; (ii) two (2) years following\nthe Effective Time or (iii) upon a Change in Control of CBAN (as defined in Schedule I). For the avoidance of doubt, the provisions\nof Section 1 shall only become operative upon the consummation of the Merger but, in such event shall survive the consummation of\nthe Merger until the earlier of (a) two (2) years after the Effective Time or (b) upon a Change in Control of CBAN. Upon termination\nof this A greement, no party shall have any further obligations or liabilities hereunder, except that termination of this greement will\nnot relieve a breaching party from liability for any breach of any provision of this A greement occurring prior to the termination of\nthis A greement.\nSection 3. Notices. All notices, requests and other communications hereunder to a party shall be in writing and shall be deemed\nproperly given if delivered (a) personally, (b) by registered or certified mail (return receipt requested), with adequate postage prepaid\nthereon (c) by properly addressed electronic mail delivery (with confirmation of delivery receipt), or (d) by reputable courier service\nto such party at its address set forth below, or at such other address or addresses as such party may specify from time to time by\nnotice in like manner to the parties hereto. All notices shall be deemed effective upon delivery.\nIf to CBAN:\nColony Bankcorp, Inc.\n115 South Grant Street\nFitzgerald, GA 31750\nAttn: T. Heath Fountain, President & CEO\nE-mail: l:heath.fountain@colonybank.com\nIf to Director:\nThe address of Director's principal residence as it\nappears in LBC's records as of the date hereof, as\nsubsequently modified by Director's provision of notice\nregarding the same to CBAN.\nSection 4. Governing Law; Jurisdiction This Agreement shall be governed by, and interpreted and enforced in accordance with, the\ninternal, substantive laws of the State of Georgia, without regard for conflict of law provisions. A ny civil action, counterclaim,\nproceeding or litigation arising out of or relating to this A greement shall be brought in the courts of record of the\n4\nState of Georgia in Ben Hill County or the United States District Court, Middle District of Georgia. Each party consents to the\njurisdiction of such Georgia court in any such civil action, counterclaim, proceeding or litigation and waives any objection to the\nlaying of venue of any such civil action, counterclaim, proceeding or litigation in such Georgia court. Service of any court paper may\nbe effected on such party by mail, as provided in this letter, or in such other manner as may be provided under applicable Laws.\nSection 5. Modification and Waiver. No provision of this A greement may be modified, waived or discharged unless such waiver,\nmodification or discharge is agreed to in writing signed by Director and CBAN. No waiver by either party hereto at any time of any\nbreach by the other party hereto of, or compliance with, any condition or provision of this A greement to be performed by such other\nparty shall be deemed a waiver of dissimilar provisions or conditions at the same or any prior subsequent time.\nSection 6. Severability. In the event that any one or more provisions of this A greement shall for any reason be held invalid, illegal or\nunenforceable in any respect, by any court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any\nother provisions of this A greement and the parties shall use their commercially reasonable efforts to substitute a valid, legal and\nenforceable provision which, insofar as practical, implements the purposes and intents of this greement.\nSection 7. Counterparts. This A greement may be executed and delivered by facsimile or by electronic data file and in one or more\ncounterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts\nhave been signed by each of the parties and delivered to the other party, it being understood that all parties need not sign the same\ncounterpart. Signatures delivered by facsimile or by electronic data file shall have the same effect as originals.\nSection 8. Entire A greement. This A greement represents the entire understanding of the parties hereto with reference to the\ntransactions contemplated hereby, and this A greement supersedes any and all other oral or written agreements heretofore made.\nSection 9. Construction; Interpretation. Nhenever the singular number is used in this A greement and when required by the context,\nthe same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice\nversa. Whenever the words "include," "includes" or "including" are used in this greement, they shall be deemed to be followed by\nthe words "without limitation." The headings in this A greement are for convenience only and are in no way intended to describe,\ninterpret, define or limit the scope, extent or intent of this A greement or any of its provisions.\n5\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written above.\nCOLONY BANKCORP, INC.\nBy:\nName:\nT. Heath Fountain\nTitle:\nPresident and Chief\nExecutive Officer\nDIRECTOR\nSignature Page - on-Competition and Non-Disclosure Agreement	EXHIBIT C\nFORM OF NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nThis Non-Competition and Non-Disclosure Agreement (the “Agreement”), is dated as of December 17, 2018, by and between\n, an individual resident of the State of Georgia (“Director”), and Colony Bankcorp, Inc., a Georgia corporation\n(“CBAN”). All capitalized terms used but not defined herein shall have the meanings assigned to them in the Merger Agreement\n(defined below).\nRECITALS:\nWHEREAS, concurrently with the execution of this Agreement, CBAN and LBC Bancshares, Inc., a Georgia corporation (“LBC”),\nare entering into an Agreement and Plan of Merger (as such agreement may be subsequently amended or modified, the “Merger\nAgreement”), pursuant to which (i) LBC will merge with and into CBAN, with CBAN as the surviving entity, and (ii) Calumet Bank,\na Georgia state-chartered bank and a direct wholly owned subsidiary of LBC, will merge with and into Colony Bank, a Georgia\nstate-chartered bank and a direct wholly owned subsidiary of CBAN, with Colony Bank as the surviving bank (collectively, the\n“Merger”);\nWHEREAS, Director is a shareholder of LBC and, as a result of the Merger and pursuant to the transactions contemplated by the\nMerger Agreement, Director is expected to receive significant consideration in exchange for the shares of LBC Common Stock held\nby Director;\nWHEREAS, as of and prior to the date hereof, Director serves and has served as a member of the Board of Directors of LBC or\nCalumet Bank, and, therefore, Director has knowledge of the Confidential Information and Trade Secrets (each as hereinafter\ndefined);\nWHEREAS, as a result of the Merger, CBAN will succeed to all of the Confidential Information and Trade Secrets, for which\nCBAN as of the Effective Time will have paid valuable consideration and desires reasonable protection; and\nWHEREAS, it is a material prerequisite to the consummation of the Merger that each director of LBC and Calumet Bank, including\nDirector, enter into this Agreement.\nAGREEMENT:\nNOW, THEREFORE, in consideration of these premises and the mutual covenants and undertakings herein contained, CBAN and\nDirector, each intending to be legally bound, covenant and agree as follows:\nSection 1. Restrictive Covenants.\n(a) Director acknowledges that (i) CBAN has separately bargained for the restrictive covenants in this Agreement; and (ii) the types\nand periods of restrictions imposed by the covenants in this Agreement are fair and reasonable to Director and such restrictions will\nnot prevent Director from earning a livelihood.\n(b) Having acknowledged the foregoing, solely in the event that the Merger is consummated, Director covenants and agrees with\nCBAN as follows:\n(i) From and after the Effective Time, Director will not disclose or use any Confidential Information or Trade Secrets for so long as\nsuch information remains Confidential Information or a Trade Secret, as applicable, for any purpose, except for any disclosure that is\nrequired by applicable Law. In the event that Director is required by Law to disclose any Confidential Information, Director will:\n(A) if and to the extent permitted by such Law, provide CBAN with prompt notice of such requirement prior to the disclosure so that\nCBAN may waive the requirements of this Agreement or seek an appropriate protective order at CBAN’s sole expense; and (B) use\ncommercially reasonable efforts to obtain assurances that any Confidential Information disclosed will be accorded confidential\ntreatment. If, in the absence of a waiver or protective order, Director is nonetheless, in the opinion of his or her counsel, required to\ndisclose Confidential Information, disclosure may be made only as to that portion of the Confidential Information that counsel\nadvises Director is required to be disclosed.\n(ii) Except as expressly provided on Schedule I to this Agreement, for a period beginning at the Effective Time and ending two\n(2) years after the Effective Time, Director will not (except on behalf of or with the prior written consent of CBAN), on Director’s\nown behalf or in the service or on behalf of others, solicit or attempt to solicit any customer of CBAN, Colony Bank, LBC or\nCalumet Bank (each a “Protected Party”), including actively sought prospective customers of Calumet Bank as of the Effective Time,\nfor the purpose of providing products or services that are Competitive (as hereinafter defined) with those offered or provided by any\nProtected Party.\n(iii) Except as expressly provided on Schedule I to this Agreement, for a period beginning at the Effective Time and ending two\n(2) years after the Effective Time, Director will not (except on behalf of or with the prior written consent of CBAN), either directly or\nindirectly, on Director’s own behalf or in the service or on behalf of others, act as a director, manager, officer or employee of any\nbusiness which is the same as or essentially the same as the business conducted by any Protected Party and which has an office\nlocated within the Restricted Territory.\n(iv) For a period beginning at the Effective Time and ending two (2) years after the Effective Time, Director will not, on Director’s\nown behalf or in the service or on behalf of others, solicit or recruit or attempt to solicit or recruit, directly or by assisting others, any\nemployee of any Protected Party, whether or not such employee is a full-time employee or a temporary employee of such Protected\nParty, whether or not such employment is pursuant to a written agreement and whether or not such employment is for a determined\nperiod or is at will, to cease working for such Protected Party; provided that the foregoing will not prevent the placement of any\ngeneral solicitation for employment not specifically directed towards employees of any Protected Party or hiring any such person as a\nresult thereof.\n2\n(c) For purposes of this Section 1, the following terms shall be defined as set forth below:\n(i) “Competitive,” with respect to particular products or services, means products or services that are the same as or similar to the\nproducts or services of any Protected Party.\n(ii) “Confidential Information” means data and information:\n(A) relating to the business of LBC and its Subsidiaries, including Calumet Bank, regardless of whether the data or information\nconstitutes a Trade Secret;\n(B) disclosed to Director or of which Director became aware as a consequence of Director’s relationship with LBC and/or Calumet\nBank;\n(C) having value to LBC and/or Calumet Bank and, as a result of the consummation of the transactions contemplated by the Merger\nAgreement, CBAN and/or Colony Bank; and\n(D) not generally known to competitors of LBC or CBAN (including competitors to Calumet Bank or Colony Bank).\nConfidential Information shall include Trade Secrets, methods of operation, names of customers, price lists, financial information and\nprojections, personnel data and similar information; provided, however, that the terms “Confidential Information” and “Trade\nSecrets” shall not mean data or information that (x) has been disclosed to the public, except where such public disclosure has been\nmade by Director without authorization from LBC or CBAN, (y) has been independently developed and disclosed by others, or\n(z) has otherwise entered the public domain through lawful means.\n(iii) “Restricted Territory” means each county in Georgia where Calumet Bank operates a banking office at the Effective Time and\neach county contiguous to each of such counties.\n(iv) “Trade Secret” means information, without regard to form, including technical or nontechnical data, a formula, a pattern, a\ncompilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans or a list of\nactual or potential customers or suppliers, that is not commonly known by or available to the public and which information:\n(A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper\nmeans by, other persons who can obtain economic value from its disclosure or use; and\n(B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.\n3\n(d) Director acknowledges that irreparable loss and injury would result to CBAN upon the breach of any of the covenants contained\nin this Section 1 and that damages arising out of such breach would be difficult to ascertain. Director hereby agrees that, in addition\nto all other remedies provided at law or in equity, CBAN may petition and obtain from a court of law or equity, without the necessity\nof proving actual damages and without posting any bond or other security, both temporary and permanent injunctive relief to prevent\na breach by Director of any covenant contained in this Section 1, and shall be entitled to an equitable accounting of all earnings,\nprofits and other benefits arising out of any such breach. In the event that the provisions of this Section 1 should ever be determined\nto exceed the time, geographic or other limitations permitted by applicable Law, then such provisions shall be modified so as to be\nenforceable to the maximum extent permitted by Law. If such provision(s) cannot be modified to be enforceable, the provision(s)\nshall be severed from this Agreement to the extent unenforceable. The remaining provisions and any partially enforceable provisions\nshall remain in full force and effect.\nSection 2. Term; Termination. This Agreement may be terminated at any time by the written consent of the parties hereto, and this\nAgreement shall be automatically terminated upon the earlier of (i) termination of the Merger Agreement; (ii) two (2) years following\nthe Effective Time or (iii) upon a Change in Control of CBAN (as defined in Schedule I). For the avoidance of doubt, the provisions\nof Section 1 shall only become operative upon the consummation of the Merger but, in such event, shall survive the consummation of\nthe Merger until the earlier of (a) two (2) years after the Effective Time or (b) upon a Change in Control of CBAN. Upon termination\nof this Agreement, no party shall have any further obligations or liabilities hereunder, except that termination of this Agreement will\nnot relieve a breaching party from liability for any breach of any provision of this Agreement occurring prior to the termination of\nthis Agreement.\nSection 3. Notices. All notices, requests and other communications hereunder to a party shall be in writing and shall be deemed\nproperly given if delivered (a) personally, (b) by registered or certified mail (return receipt requested), with adequate postage prepaid\nthereon, (c) by properly addressed electronic mail delivery (with confirmation of delivery receipt), or (d) by reputable courier service\nto such party at its address set forth below, or at such other address or addresses as such party may specify from time to time by\nnotice in like manner to the parties hereto. All notices shall be deemed effective upon delivery.\nIf to CBAN:\nColony Bankcorp, Inc.\n115 South Grant Street\nFitzgerald, GA 31750\nAttn: T. Heath Fountain, President & CEO\nE-mail: heath.fountain@colonybank.com\nIf to Director:\nThe address of Director’s principal residence as it\nappears in LBC’s records as of the date hereof, as\nsubsequently modified by Director’s provision of notice\nregarding the same to CBAN.\nSection 4. Governing Law; Jurisdiction. This Agreement shall be governed by, and interpreted and enforced in accordance with, the\ninternal, substantive laws of the State of Georgia, without regard for conflict of law provisions. Any civil action, counterclaim,\nproceeding or litigation arising out of or relating to this Agreement shall be brought in the courts of record of the\n4\nState of Georgia in Ben Hill County or the United States District Court, Middle District of Georgia. Each party consents to the\njurisdiction of such Georgia court in any such civil action, counterclaim, proceeding or litigation and waives any objection to the\nlaying of venue of any such civil action, counterclaim, proceeding or litigation in such Georgia court. Service of any court paper may\nbe effected on such party by mail, as provided in this letter, or in such other manner as may be provided under applicable Laws.\nSection 5. Modification and Waiver. No provision of this Agreement may be modified, waived or discharged unless such waiver,\nmodification or discharge is agreed to in writing signed by Director and CBAN. No waiver by either party hereto at any time of any\nbreach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other\nparty shall be deemed a waiver of dissimilar provisions or conditions at the same or any prior subsequent time.\nSection 6. Severability. In the event that any one or more provisions of this Agreement shall for any reason be held invalid, illegal or\nunenforceable in any respect, by any court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any\nother provisions of this Agreement and the parties shall use their commercially reasonable efforts to substitute a valid, legal and\nenforceable provision which, insofar as practical, implements the purposes and intents of this Agreement.\nSection 7. Counterparts. This Agreement may be executed and delivered by facsimile or by electronic data file and in one or more\ncounterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts\nhave been signed by each of the parties and delivered to the other party, it being understood that all parties need not sign the same\ncounterpart. Signatures delivered by facsimile or by electronic data file shall have the same effect as originals.\nSection 8. Entire Agreement. This Agreement represents the entire understanding of the parties hereto with reference to the\ntransactions contemplated hereby, and this Agreement supersedes any and all other oral or written agreements heretofore made.\nSection 9. Construction; Interpretation. Whenever the singular number is used in this Agreement and when required by the context,\nthe same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter genders and vice\nversa. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by\nthe words “without limitation.” The headings in this Agreement are for convenience only and are in no way intended to describe,\ninterpret, define or limit the scope, extent or intent of this Agreement or any of its provisions.\n5\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written above.\nCOLONY BANKCORP, INC.\nBy:\nName:\nT. Heath Fountain\nTitle:\nPresident and Chief\nExecutive Officer\nDIRECTOR\nSignature Page – Non-Competition and Non-Disclosure Agreement
+ee3842cc2378228c64d8e2b6159eef83.pdf	effective_date jurisdiction party term	Non-Disclosure Agreement\nThis Non-Disclosure Agreement (this “Agreement”) is made this ____ day of __________, 20__, by and among KBS SOR Acquisition\nIV, LLC, a Delaware limited liability company (“KBS SOR IV”), KBS SOR Acquisition XVI, LLC, a Delaware limited liability company\n(“KBS SOR XVI”), KBS Strategic Opportunity Limited Partnership, a Delaware limited partnership (“KBS LP”), KBS Strategic Opportunity\nREIT, Inc., a Maryland corporation (“KBS REIT”), KBS Capital Advisors LLC, a Delaware limited liability company (“KBS CA”), and\n__ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ , a ______________________________ (the “Recipient”) (KBS SOR IV, KBS SOR XVI, KBS LP, KBS REIT and\nKBS CA are collectively referred to as “KBS”; Recipient and KBS are sometimes referred to in this Agreement individually as a “Party” or\ncollectively as the “Parties”).\nKBS and Recipient wish to have discussions during which Recipient may be exposed to important business and/or technical information\nwhich is the property of KBS. Such disclosures may be in the form of written materials, by oral disclosure, or through learned observation, and\nmay include certain plans, designs, data, operations, financial positions and projections, business and technical information, trade secrets,\ntechniques, methods, supplier and vendor contacts and methods, development plans, acquisition plans, financing options and plans, profit\nmargins, services, proprietary information, and other confidential information. Much of this information is the result of substantial expenditures\nof time, money, technical expertise, and resources. And KBS considers this information confidential and/or a trade secret. The unauthorized use\nor disclosure of this information could cause significant harm to KBS’s business. For this reason and in consideration of the mutual covenants\ncontained in this Agreement and the disclosure of confidential information to Recipient, the Parties agree as follows:\n1. Definitions. For purposes of this Agreement, the following\ndefinitions apply:\n1.1\n“Confidential Information” means KBS’s non-public,\nconfidential and proprietary information and specifically includes, but\nis not necessarily limited to, the following: (A) plans, data, operations,\nfinancial positions, historical performance and projections, business and\ntechnical information, techniques, methods, supplier and vendor\ncontacts, development plans, acquisition plans, financing options and\nplans, profit margins, services, methodologies, techniques, designs\n(architectural or otherwise), specifications, tenant lists, tenant\ninformation, leasing plans or strategies, market information, marketing\nplans, personnel information, other financial information, business\nstrategies, rent and pricing policies, contractual relations with\ncustomers and suppliers, business acquisition plans, business\nopportunities, new personnel acquisition plans, and information, books,\nrecords, patent applications, proprietary information, and other\nconfidential information and know-how relating to the business of\nKBS; (B) information received by KBS from third parties under\nconfidential conditions, which information is identified by KBS as\nbeing subject to such conditions; and (C) KBS’s Trade Secrets.\nConfidential Information does not include any information that: (W) is\nor subsequently becomes publicly available without the Recipient’s\nbreach, directly or indirectly, of any obligation owed to KBS; (X)\nbecame known to the Recipient prior to KBS’s disclosure of such\ninformation to the Recipient as can\nbe proven by Recipient’s written records; (Y) became known to the\nRecipient from a source other than KBS other than by the breach of an\nobligation of confidentiality owed to KBS; or (Z) is independently\ndeveloped, without any use of KBS’s Confidential Information, by the\nRecipient as evidenced by its written records.\n1.2\n“Trade Secrets” means information that: derives economic\nvalue, actual or potential, from not being generally known to, or readily\nascertainable by proper means by, other persons who can obtain\neconomic value from its disclosure or use, and that is the subject of\nefforts that are reasonable under the circumstances to maintain its\nsecrecy.\n2. Obligations of Recipient. Recipient covenants and agrees that:\n2.1 It will hold all Confidential Information in trust and in the\nstrictest confidence and protect it in accordance with a standard of care\nthat shall be no less than the care it uses to protect its own information\nof like importance but in no event with less than reasonable care;\n2.2 It will not use, copy, or disclose, or permit any unauthorized\nperson access to, any Confidential Information without KBS’s\npermission, to be granted or withheld in KBS’s sole discretion, and\nprovided that any existing confidentiality notices are included in such\nreproductions or, if no such notices are included,\n1\n“Confidential” or some similar notice is stamped on the Confidential\nInformation;\n2.3 It may only disclose Confidential Information to its directors,\nofficers, employees, consultants, insurers, reinsurers, auditors,\nregulators, attorneys and agents (“Representatives”) provided such\nRepresentatives (i) have a need to know and (ii) are informed, directed\nand obligated by Recipient to treat such Confidential Information in\naccordance with the obligations of this Agreement. Recipient agrees to\nbe liable for any breach of an obligation hereunder by any of its\nRepresentatives;\n2.4\nAll Confidential Information, including all tangible\nembodiments, copies, reproductions and summaries thereof, and any\nother information and materials provided by KBS to the Recipient shall\nremain the sole and exclusive property of KBS.\n2.5 It shall immediately report to KBS any use or disclosure by\nthe Recipient’s employees or any other person of which the Recipient\nhas knowledge of any portion of the Confidential Information without\nauthorization from KBS, and will reasonably cooperate with KBS to\nhelp KBS regain possession of the Confidential Information and\nprevent its further unauthorized use.\n2.6 Upon the written request of KBS, Recipient will effect the\ndestruction of all memoranda, notes, records, tapes, documentation,\ndisks, manuals, files, originals, copies, reproductions and summaries (in\nany form or format, including without limitation, copies resident in long\nor short-term computer storage devices) of, to the extent they concern\nor contain Confidential Information that are in Recipient’s possession,\nwhether made or compiled by Recipient or furnished to Recipient by\nKBS; provided that Recipient, as a regulated entity, may retain the\nConfidential Information for the purposes of and for so long as required\nby any law, court or regulatory agency or authority or its internal\ncompliance procedures. The confidentiality obligations of this\nAgreement shall continue to apply to such Confidential Information\nretained by Recipient or its Representatives for so long as Recipient or\nits Representatives retains such Confidential Information.\n3. Obligation of Recipient. The Recipient’s obligations to maintain\nthe confidentiality of Confidential Information pursuant to Section 2\nspecifically include, but are not limited to, not disclosing Confidential\nInformation to any persons or entities engaged in a field of business\nsimilar to KBS or in the non-traded REIT industry.\n4. Exception. The obligations of confidentiality imposed by this\nAgreement do not apply to any Confidential Information that is\nrequired to be disclosed pursuant to operation of law or legal process,\ngovernmental regulation or court order. If Recipient receives a court\norder or other governmental or administrative decree of appropriate and\nsufficient jurisdiction requiring disclosure of KBS’s Confidential\nInformation, Recipient shall give KBS prompt notice prior to such\ndisclosure, if legally permitted, in order to permit KBS, at its expense,\nto seek a protective order in the case of a court order or other\ngovernmental or administrative decree. Recipient agrees to reasonably\ncooperate with KBS, at KBS’s expense and subject to applicable law, to\nlimit such disclosure. Recipient shall also reasonably cooperate with\nKBS in seeking a protective order subject to the payment by KBS of all\nout-of-pocket expenses incurred by the party providing such\ncooperation at the request of KBS. Recipient shall release only so much\nof KBS’s Confidential Information as Recipient’s counsel advises is\nrequired by such order.\n5. Duration. The restrictions on use and disclosure of Confidential\nInformation shall survive for a period of two (2) years. However, with\nrespect to Confidential Information that constitutes (i) a Trade Secret,\nor (ii) is retained by Recipient pursuant to the second clause of Section\n2.6(ii) above, the confidentiality obligations set forth in this Agreement\nshall continue in effect for so long as such Confidential Information\nremains a Trade Secret, or is retained by Recipient, as applicable.\n6. No Warranties. KBS makes no warranties, express or implied,\nunder this Agreement or by any Confidential Information disclosed\nto Recipient under this Agreement. All information disclosed\nhereunder is provided “as is.”\n7. No Licenses or Other Obligations. By disclosing information to\nthe Recipient, KBS does not grant any express or implied rights or\nlicenses to the Recipient with respect to any patents, copyrights,\ntrademarks, Trade Secrets or other proprietary rights of KBS. Nothing\nin this Agreement shall obligate KBS to disclose any information to\nRecipient or to engage in any other business activity with Recipient.\n8. Representations and Covenants. Recipient represents, covenants,\nacknowledges, and agrees that:\n8.1 It is aware and its Representatives have been advised that\nsecurities laws prohibit any person who has material non-public\ninformation about a public company from purchasing or selling\nsecurities of such company.\n2\n8.2\nThis Agreement (and any Confidential Information) is\ndelivered upon the express condition that Recipient will not publicize in\nany manner whatsoever by way of interviews, responses to questions or\ninquiries, press releases or otherwise, any aspect or proposed aspect of\nthe subject matter of the Confidential Information without prior notice\nto and approval of KBS, except as may otherwise be required by law.\n9. Threatened Breach; Breach; Remedies. In the event of any breach\nof this Agreement by Recipient, including, without limitation, the actual\nor threatened disclosure of Confidential Information without the prior\nexpress written consent of KBS, KBS will suffer an irreparable injury,\nsuch that no remedy at law will afford it adequate protection against, or\nappropriate compensation for, such injury. Accordingly, Recipient\nhereby agrees that KBS shall be entitled, without waiving any other\nrights or remedies, to seek specific performance of the Recipient’s\nobligations as well as such other injunctive relief as may be granted by\na court of competent jurisdiction.\n10. Miscellaneous.\n10.1 Severability. If any provision of this Agreement shall not\nbe valid for any reason, such provision shall be entirely severable from,\nand shall have no effect upon, the remainder of this Agreement. Any\nsuch invalid provision shall be subject to partial enforcement to the\nextent necessary to protect the interest of KBS.\n10.2\nGoverning Law; Forum. This Agreement shall be\nconstrued and controlled by the laws of the State of California without\nreference to the provisions governing conflict of laws, and both parties\nfurther consent to the exclusive jurisdiction by the state and federal\ncourts sitting in the State of California of any dispute arising out of or\nrelated to this Agreement.\n10.3\nEnforcement by Successors or Assigns;\nSurvivability. The covenants and agreements contained herein shall\ninure to the benefit of, and may be enforced by, any legal successors or\nassigns of each Party and shall survive any termination of the\nrelationship between the Parties, whether such termination is at the\ninstance of either Party, and regardless of the reasons therefore.\n10.4 Amendment; Waiver. This Agreement, or any provision\nhereof, shall not be waived, changed or terminated except by a writing\nsigned by an authorized officer of both Parties.\n10.5 Counterparts. This Agreement may be executed in one or\nmore counterparts, each of which will constitute an original, but all of\nwhich together constitute a single document. Any signature duly\naffixed to this Agreement and delivered by facsimile transmission shall\nbe deemed to have the same legal effect as the actual signature of the\nperson signing this Agreement, and any Party receiving delivery of a\nfacsimile copy of the signed Agreement may rely on such as having\nactually been signed.\n10.6 Merger. This Agreement constitutes the entire agreement\nbetween the parties with respect to the subject matter of this\nAgreement, except to the extent of existing non-disclosure agreements\nbetween the parties to which this Agreement supplements (but\nsupersedes to the extent of any inconsistency therein).\n10.7\nNo Implied Waiver. None of the provisions of this\nAgreement shall be deemed to have been waived by any act or\nacquiescence on the part of KBS, its agents, or employees, but only by\nan instrument in writing signed by an authorized officer of KBS. No\nwaiver of any provision of this Agreement shall constitute a waiver of\nany other provision(s) or of the same provision on another occasion.\n10.8 No Assignment. The Recipient may not assign its rights or\nobligations under this Agreement without the express written consent\nof KBS.\n10.9 Headings and Construction. The headings of Sections in\nthis Agreement are provided for convenience only and will not affect\nits construction or interpretation. All references to “Section” or\n“Sections” refer to the corresponding Section or Sections of this\nAgreement unless otherwise specified. All words used in this\nAgreement will be construed to be of such gender or number as the\ncircumstances require. Unless otherwise expressly provided, the word\n“including” does not limit the preceding words or terms.\n3\nThe parties hereto have executed this Agreement as of the date noted above.\nRecipient Name:\nKBS Capital Advisors LLC\nBy:\nBy:\nName (print):\nName (print):\nTitle:\nTitle:\n4	Non-Disclosure Agreement\n \nThis Non-Disclosure Agreement (this “Agreement”) is made this day of , 20__, by and among KBS SOR Acquisition\nIV, LLC, a Delaware limited liability company (“KBS SOR IV”), KBS SOR Acquisition XVI, LLC, a Delaware limited liability company\n(“KBS SOR XVI”), KBS Strategic Opportunity Limited Partnership, a Delaware limited partnership (“KBS LP”), KBS Strategic Opportunity\nREIT, Inc., a Maryland corporation (“KBS REIT”), KBS Capital Advisors LLC, a Delaware limited liability company (“KBS CA”), and\n, a (the “Recipient”) (KBS SOR IV, KBS SOR XVI, KBS LP, KBS REIT and\nKBS CA are collectively referred to as “KBS”; Recipient and KBS are sometimes referred to in this Agreement individually as a “Party” or\ncollectively as the “Parties”).\n \n \nKBS and Recipient wish to have discussions during which Recipient may be exposed to important business and/or technical information\nwhich is the property of KBS. Such disclosures may be in the form of written materials, by oral disclosure, or through learned observation, and\nmay include certain plans, designs, data, operations, financial positions and projections, business and technical information, trade secrets,\ntechniques, methods, supplier and vendor contacts and methods, development plans, acquisition plans, financing options and plans, profit\nmargins, services, proprietary information, and other confidential information. Much of this information is the result of substantial expenditures\nof time, money, technical expertise, and resources. And KBS considers this information confidential and/or a trade secret. The unauthorized use\nor disclosure of this information could cause significant harm to KBS’s business. For this reason and in consideration of the mutual covenants\ncontained in this Agreement and the disclosure of confidential information to Recipient, the Parties agree as follows:\n1. Definitions. For purposes of this Agreement, the following be proven by Recipient’s written records; (Y) became known to the\ndefinitions apply: Recipient from a source other than KBS other than by the breach of an\nobligation of confidentiality owed to KBS; or (Z) is independently\n1.1 “Confidential Information” means KBS’s non-public, developed, without any use of KBS’s Confidential Information, by the\nconfidential and proprietary information and specifically includes, but Recipient as evidenced by its written records.\nis not necessarily limited to, the following: (A) plans, data, operations,\nfinancial positions, historical performance and projections, business and 1.2  “Trade Secrets” means information that: derives economic\ntechnical information, techniques, methods, supplier and vendor value, actual or potential, from not being generally known to, or readily\ncontacts, development plans, acquisition plans, financing options and ascertainable by proper means by, other persons who can obtain\nplans, profit margins, services, methodologies, techniques, designs economic value from its disclosure or use, and that is the subject of\n(architectural or otherwise), specifications, tenant lists, tenant efforts that are reasonable under the circumstances to maintain its\ninformation, leasing plans or strategies, market information, marketing secrecy.\nplans, personnel information, other financial information, business\nstrategies, rent and pricing policies, contractual relations with 2. Obligations of Recipient. Recipient covenants and agrees that:\ncustomers and suppliers, business acquisition plans, business\nopportunities, new personnel acquisition plans, and information, books, 2.1 It will hold all Confidential Information in trust and in the\nrecords, patent applications, proprietary information, and other strictest confidence and protect it in accordance with a standard of care\nconfidential information and know-how relating to the business of that shall be no less than the care it uses to protect its own information\nKBS; (B) information received by KBS from third parties under of like importance but in no event with less than reasonable care;\nconfidential conditions, which information is identified by KBS as\nbeing subject to such conditions; and (C) KBS’s Trade Secrets. 2.2 It will not use, copy, or disclose, or permit any unauthorized\nConfidential Information does not include any information that: (W) is person access to, any Confidential Information without KBS’s\nor subsequently becomes publicly available without the Recipient’s permission, to be granted or withheld in KBS’s sole discretion, and\nbreach, directly or indirectly, of any obligation owed to KBS; (X) provided that any existing confidentiality notices are included in such\nbecame known to the Recipient prior to KBS’s disclosure of such reproductions or, if no such notices are included,\ninformation to the Recipient as can\n“Confidential” or some similar notice is stamped on the Confidential 4. Exception. The obligations of confidentiality imposed by this\nInformation; Agreement do not apply to any Confidential Information that is\nrequired to be disclosed pursuant to operation of law or legal process,\n2.3 It may only disclose Confidential Information to its directors, governmental regulation or court order. If Recipient receives a court\nofficers, employees, consultants, insurers, reinsurers, auditors, order or other governmental or administrative decree of appropriate and\nregulators, attorneys and agents (“Representatives”) provided such sufficient jurisdiction requiring disclosure of KBS’s Confidential\nRepresentatives (i) have a need to know and (ii) are informed, directed Information, Recipient shall give KBS prompt notice prior to such\nand obligated by Recipient to treat such Confidential Information in disclosure, if legally permitted, in order to permit KBS, at its expense,\naccordance with the obligations of this Agreement. Recipient agrees to to seek a protective order in the case of a court order or other\nbe liable for any breach of an obligation hereunder by any of its governmental or administrative decree. Recipient agrees to reasonably\nRepresentatives; cooperate with KBS, at KBS’s expense and subject to applicable law, to\nlimit such disclosure. Recipient shall also reasonably cooperate with\n24 All Confidential Information, including all tangible KBS in seeking a protective order subject to the payment by KBS of all\nembodiments, copies, reproductions and summaries thereof, and any out-of-pocket expenses incurred by the party providing such\nother information and materials provided by KBS to the Recipient shall cooperation at the request of KBS. Recipient shall release only so much\nremain the sole and exclusive property of KBS. of KBS’s Confidential Information as Recipient’s counsel advises is\nrequired by such order.\n2.5 It shall immediately report to KBS any use or disclosure by\nthe Recipient’s employees or any other person of which the Recipient 5. Duration. The restrictions on use and disclosure of Confidential\nhas knowledge of any portion of the Confidential Information without Information shall survive for a period of two (2) years. However, with\nauthorization from KBS, and will reasonably cooperate with KBS to respect to Confidential Information that constitutes (i) a Trade Secret,\nhelp KBS regain possession of the Confidential Information and or (ii) is retained by Recipient pursuant to the second clause of Section\nprevent its further unauthorized use. 2.6(ii) above, the confidentiality obligations set forth in this Agreement\nshall continue in effect for so long as such Confidential Information\n2.6 Upon the written request of KBS, Recipient will effect the remains a Trade Secret, or is retained by Recipient, as applicable.\ndestruction of all memoranda, notes, records, tapes, documentation,\ndisks, manuals, files, originals, copies, reproductions and summaries (in 6. No Warranties. KBS makes no warranties, express or implied,\nany form or format, including without limitation, copies resident in long under this Agreement or by any Confidential Information disclosed\nor short-term computer storage devices) of, to the extent they concern to Recipient under this Agreement. All information disclosed\nor contain Confidential Information that are in Recipient’s possession, hereunder is provided “as is.”\nwhether made or compiled by Recipient or furnished to Recipient by\nKBS; provided that Recipient, as a regulated entity, may retain the 7. No Licenses or Other Obligations. By disclosing information to\nConfidential Information for the purposes of and for so long as required the Recipient, KBS does not grant any express or implied rights or\nby any law, court or regulatory agency or authority or its internal licenses to the Recipient with respect to any patents, copyrights,\ncompliance procedures. The confidentiality obligations of this trademarks, Trade Secrets or other proprietary rights of KBS. Nothing\nAgreement shall continue to apply to such Confidential Information in this Agreement shall obligate KBS to disclose any information to\nretained by Recipient or its Representatives for so long as Recipient or Recipient or to engage in any other business activity with Recipient.\nits Representatives retains such Confidential Information.\n8. Representations and Covenants. Recipient represents, covenants,\n3. Obligation of Recipient. The Recipient’s obligations to maintain acknowledges, and agrees that:\nthe confidentiality of Confidential Information pursuant to Section 2\nspecifically include, but are not limited to, not disclosing Confidential =~ 8.1 It is aware and its Representatives have been advised that\nInformation to any persons or entities engaged in a field of business securities laws prohibit any person who has material non-public\nsimilar to KBS or in the non-traded REIT industry. information about a public company from purchasing or selling\nsecurities of such company.\n8.2 This Agreement (and any Confidential Information) is 10.5 Counterparts. This Agreement may be executed in one or\ndelivered upon the express condition that Recipient will not publicize in more counterparts, each of which will constitute an original, but all of\nany manner whatsoever by way of interviews, responses to questions or which together constitute a single document. Any signature duly\ninquiries, press releases or otherwise, any aspect or proposed aspect of affixed to this Agreement and delivered by facsimile transmission shall\nthe subject matter of the Confidential Information without prior notice be deemed to have the same legal effect as the actual signature of the\nto and approval of KBS, except as may otherwise be required by law.  person signing this Agreement, and any Party receiving delivery of a\nfacsimile copy of the signed Agreement may rely on such as having\n9. Threatened Breach; Breach; Remedies. In the event of any breach actually been signed.\nof this Agreement by Recipient, including, without limitation, the actual\nor threatened disclosure of Confidential Information without the prior 10.6 Merger. This Agreement constitutes the entire agreement\nexpress written consent of KBS, KBS will suffer an irreparable injury, between the parties with respect to the subject matter of this\nsuch that no remedy at law will afford it adequate protection against, or Agreement, except to the extent of existing non-disclosure agreements\nappropriate compensation for, such injury. Accordingly, Recipient between the parties to which this Agreement supplements (but\nhereby agrees that KBS shall be entitled, without waiving any other supersedes to the extent of any inconsistency therein).\nrights or remedies, to seek specific performance of the Recipient’s\nobligations as well as such other injunctive relief as may be granted by 10.7 No Implied Waiver. None of the provisions of this\na court of competent jurisdiction. Agreement shall be deemed to have been waived by any act or\nacquiescence on the part of KBS, its agents, or employees, but only by\n10. Miscellaneous. an instrument in writing signed by an authorized officer of KBS. No\nwaiver of any provision of this Agreement shall constitute a waiver of\n10.1  Severability. If any provision of this Agreement shall not any other provision(s) or of the same provision on another occasion.\nbe valid for any reason, such provision shall be entirely severable from,\nand shall have no effect upon, the remainder of this Agreement. Any 10.8 No Assignment. The Recipient may not assign its rights or\nsuch invalid provision shall be subject to partial enforcement to the obligations under this Agreement without the express written consent\nextent necessary to protect the interest of KBS. of KBS.\n10.2 Governing Law; Forum. This Agreement shall be 10.9 Headings and Construction. The headings of Sections in\nconstrued and controlled by the laws of the State of California without this Agreement are provided for convenience only and will not affect\nreference to the provisions governing conflict of laws, and both parties its construction or interpretation. All references to “Section” or\nfurther consent to the exclusive jurisdiction by the state and federal “Sections” refer to the corresponding Section or Sections of this\ncourts sitting in the State of California of any dispute arising out of or Agreement unless otherwise specified. All words used in this\nrelated to this Agreement. Agreement will be construed to be of such gender or number as the\ncircumstances require. Unless otherwise expressly provided, the word\n10.3 Enforcement by Successors or Assigns; “including” does not limit the preceding words or terms.\nSurvivability. The covenants and agreements contained herein shall\ninure to the benefit of, and may be enforced by, any legal successors or\nassigns of each Party and shall survive any termination of the\nrelationship between the Parties, whether such termination is at the\ninstance of either Party, and regardless of the reasons therefore.\n10.4 Amendment; Waiver. This Agreement, or any provision\nhereof, shall not be waived, changed or terminated except by a writing\nsigned by an authorized officer of both Parties.\nThe parties hereto have executed this Agreement as of the date noted above.\nRecipient Name: KBS Capital Advisors LLC\nBy: By:\nName (print): Name (print):\nTitle: Title:	Non-Disclosure Agreement\nThis Non-Disclosure Agreement (this "Agreement") is made this day of 20_ by and among KBS SOR Acquisition\nIV, LLC, a Delaware limited liability company ("KBS SOR IV"), KBS SOR Acquisition XVI, LLC, a Delaware limited liability company\n("KBS SOR XVI"), KBS Strategic Opportunity Limited Partnership, a Delaware limited partnership ("KBS LP"), KBS Strategic Opportunity\nREIT, Inc., a Maryland corporation ("KBS REIT"), KBS Capital Advisors LLC, a Delaware limited liability company ("KBS CA"), and\na (the "Recipient") (KBS SOR IV, KBS SOR XVI, KBS LP, KBS REIT and\nKBS CA are collectively referred to as "KBS"; Recipient and KBS are sometimes referred to in this Agreement individually as a "Party" or\ncollectively as the "Parties").\nKBS and Recipient wish to have discussions during which Recipient may be exposed to important business and/or technical information\nwhich is the property of KBS. Such disclosures may be in the form of written materials, by oral disclosure, or through learned observation, and\nmay include certain plans, designs, data, operations, financial positions and projections, business and technical information, trade secrets,\ntechniques, methods, supplier and vendor contacts and methods, development plans, acquisition plans, financing options and plans, profit\nmargins, services, proprietary information, and other confidential information. Much of this information is the result of substantial expenditures\nof time, money, technical expertise, and resources. And KBS considers this information confidential and/or a trade secret. The unauthorized\nuse\nor disclosure of this information could cause significant harm to KBS's business. For this reason and in consideration of the mutual covenants\ncontained in this Agreement and the disclosure of confidential information to Recipient, the Parties agree as follows:\n1.\nDefinitions. For purposes of this Agreement, the following be proven by Recipient's written records; (Y) became known to the\ndefinitions apply:\nRecipient from a source other than KBS other than by the breach of an\nobligation of confidentiality owed to KBS; or (Z) is independently\n1.1\n"Confidential Information" means KBS's non-public, developed, without any use of KBS's Confidential Information, by the\nconfidential and proprietary information and specifically includes, but Recipient as evidenced by its written records.\nis not necessarily limited to, the following: (A) plans, data, operations,\nfinancial positions, historical performance and projections, business and\n1.2 "Trade Secrets" means information that: derives economic\ntechnical information, techniques, methods, supplier and vendor value, actual or potential, from not being generally known to, or readily\ncontacts, development plans, acquisition plans, financing options and ascertainable by proper means by, other persons who can obtain\nplans, profit margins, services, methodologies, techniques, designs economic value from its disclosure or use, and that is the subject of\n(architectural or otherwise), specifications, tenant lists, tenant efforts that are reasonable under the circumstances to maintain its\ninformation, leasing plans or strategies, market information, marketing secrecy.\nplans, personnel information, other financial information, business\nstrategies, rent and pricing policies, contractual relations with 2. Obligations of Recipient. Recipient covenants and agrees that:\ncustomers and suppliers, business acquisition plans, business\nopportunities, new personnel acquisition plans, and information, books, 2.1 It will hold all Confidential Information in trust and in the\nrecords, patent applications, proprietary information, and other strictest confidence and protect it in accordance with a standard of care\nconfidentia information and know-how relating to the business of that shall be no less than the care it uses to protect its own information\nKBS; (B) information received by KBS from third parties under of like importance but in no event with less than reasonable care;\nconfidential conditions, which information is identified by KBS as\nbeing subject to such conditions; and (C) KBS's Trade Secrets. 2.2 It will not use, copy, or disclose, or permit any unauthorized\nConfidential Information does not include any information that: (W) is person access to, any Confidential Information without KBS's\nor subsequently becomes publicly available without the Recipient's permission, to be granted or withheld in KBS's sole discretion, and\nbreach, directly or indirectly, of any obligation owed to KBS; (X) provided that any existing confidentiality notices are included in such\nbecame known to the Recipient prior to KBS's disclosure of such reproductions or, if no such notices are included,\ninformation to the Recipient as can\n1\n"Confidential" or some similar notice is stamped on the Confidential 4. Exception. The obligations of confidentiality imposed by this\nInformation;\nAgreement do not apply to any Confidential Information that is\nrequired to be disclosed pursuant to operation of law or legal process,\n2.3\nIt may only disclose Confidential Information to its directors, governmental regulation or court order. If Recipient receives a court\nofficers, employees, consultants, insurers, reinsurers, auditors, order or other governmental or administrative decree of appropriate and\nregulators, attorneys and agents ("Representatives") provided such sufficient jurisdiction requiring disclosure of KBS's Confidential\nRepresentatives (i) have a need to know and (ii) are informed, directed Information, Recipient shall give KBS prompt notice prior to such\nand obligated by Recipient to treat such Confidentia Information in disclosure, if legally permitted, in order to permit KBS, at its expense,\naccordance with the obligations of this Agreement. Recipient agrees to to seek a protective order in the case of a court order\nor\nother\nbe liable for any breach of an obligation hereunder by any of its governmental or administrative decree. Recipient agrees to reasonably\nRepresentatives;\ncooperate with KBS, at KBS's expense and subject to applicable law, to\nlimit such disclosure. Recipient shall also reasonably cooperate with\n2.4\nAll Confidential Information, including all tangible KBS in seeking a protective order subject to the payment by KBS of all\nembodiments, copies, reproductions and summaries thereof, and any out-of-pocket expenses incurred by the party providing such\nother information and materials provided by KBS to the Recipient shall cooperation at the request of KBS. Recipient shall release only so much\nremain the sole and exclusive property of KBS.\nof KBS's Confidential Information as Recipient's counsel advises is\nrequired by such order.\n2.5\nIt shall immediately report to KBS any use or disclosure by\nthe Recipient's employees or any other person of which the Recipient 5. Duration. The restrictions on use and disclosure of Confidential\nhas knowledge of any portion of the Confidential Information without Information shall survive for a period of two (2) years. However, with\nauthorization from KBS, and will reasonably cooperate with KBS to respect to Confidential Information that constitutes (i) a Trade Secret,\nhelp KBS regain possession of the Confidential Information and or (ii) is retained by Recipient pursuant to the second clause of Section\nprevent its further unauthorized use.\n2.6(ii) above, the confidentiality obligations set forth in this Agreement\nshall continue in effect for so long as such Confidential Information\n2.6 Upon the written request of KBS, Recipient will effect the remains a Trade Secret, or is retained by Recipient, as applicable.\ndestruction of all memoranda, notes, records, tapes, documentation,\ndisks, manuals, files, originals, copies, reproductions and summaries (in 6. No Warranties. KBS makes no warranties, express or implied,\nany form or format, including without limitation, copies resident in long under this Agreement or by any Confidential Information disclosed\nor short-term computer storage devices) of, to the extent they concern to Recipient under this Agreement. All information disclosed\nor contain Confidential Information that are in Recipient's possession, hereunder is provided "as is."\nwhether made or compiled by Recipient or furnished to Recipient by\nKBS; provided that Recipient, as a regulated entity, may retain the 7. No Licenses or Other Obligations. By disclosing information to\nConfidential Information for the purposes of and for so long as required the Recipient, KBS does not grant any express or implied rights or\nby any law, court or regulatory agency or authority or its internal licenses to the Recipient with respect to any patents, copyrights,\ncompliance\nprocedures.\nThe\nconfidentiality\nobligations\nof\nthis\ntrademarks,\nTrade\nSecrets\nor\nother\nproprietary\nrights\nof\nKBS.\nNothing\nAgreement shall continue to apply to such Confidential Information in this Agreement shall obligate KBS to disclose any information to\nretained by Recipient or its Representatives for so long as Recipient or Recipient or to engage in any other business activity with Recipient.\nits Representatives retains such Confidential Information.\n8. Representations and Covenants. Recipient represents, covenants,\n3. Obligation of Recipient. The Recipient's obligations to maintain acknowledges, and agrees that:\nthe confidentiality of Confidential Information pursuant to Section 2\nspecifically include, but are not limited to, not disclosing Confidential\n8.1 It is aware and its Representatives have been advised that\nInformation to any persons or entities engaged in a field of business securities laws prohibit any person who has material non-public\nsimilar to KBS or in the non-traded REIT industry.\ninformation about a public company from purchasing or selling\nsecurities of such company.\n2\n8.2\nThis Agreement (and any Confidential Information) is 10.5\nCounterparts. This Agreement may be executed in one or\ndelivered upon the express condition that Recipient will not publicize in more counterparts, each of which will constitute an original, but all of\nany manner whatsoever by way of interviews, responses to questions or which together constitute a single document. Any signature\nduly\ninquiries, press releases or otherwise, any aspect or proposed aspect of affixed to this Agreement and delivered by facsimile transmission shall\nthe subject matter of the Confidential Information without prior notice be deemed to have the same legal effect as the actual signature of the\nto and approval of KBS, except as may otherwise be required by law. person signing this Agreement, and any Party receiving delivery of a\nfacsimile copy of the signed Agreement may rely on such as having\n9. Threatened Breach; Breach; Remedies. In the event of any breach actually been signed.\nof this Agreement by Recipient, including, without limitation, the actual\nor threatened disclosure of Confidential Information without the prior\n10.6 Merger. This Agreement constitutes the entire agreement\nexpress written consent of KBS, KBS will suffer an irreparable injury, between the parties with respect to the subject matter\nof\nthis\nsuch that no remedy at law will afford it adequate protection against, or Agreement, except to the extent of existing non-disclosure agreements\nappropriate compensation for, such injury. Accordingly, Recipient between the parties to which this Agreement supplements (but\nhereby agrees that KBS shall be entitled, without waiving any other supersedes to the extent of any inconsistency therein).\nrights or remedies, to seek specific performance of the Recipient's\nobligations as well as such other injunctive relief as may be granted by 10.7\nNo Implied Waiver. None of the provisions of this\na court of competent jurisdiction.\nAgreement shall be deemed to have been waived by any act or\nacquiescence on the part of KBS, its agents, or employees, but only by\n10. Miscellaneous.\nan instrument in writing signed by an authorized officer of KBS. No\nwaiver of any provision of this Agreement shall constitute a waiver of\n10.1 Severability. If any provision of this Agreement shall not any other provision(s) or of the same provision on another occasion.\nbe valid for any reason, such provision shall be entirely severable from,\nand shall have no effect upon, the remainder of this Agreement. Any\n10.8 No Assignment. The Recipient may not assign its rights or\nsuch invalid provision shall be subject to partial enforcement to the obligations under this Agreement without the express written consent\nextent necessary to protect the interest of KBS.\nof KBS\n10.2\nGoverning Law; Forum. This Agreement shall be 10.9 Headings and Construction. The headings of Sections\nin\nconstrued and controlled by the laws of the State of California without this Agreement are provided for convenience only and will not affect\nreference to the provisions governing conflict of laws, and both parties its construction or interpretation. All references to "Section" or\nfurther consent to the exclusive jurisdiction by the state and federal "Sections" refer to the corresponding Section or Sections of this\ncourts sitting in the State of California of any dispute arising out of or Agreement unless otherwise specified. All words used in this\nrelated to this Agreement.\nAgreement will be construed to be of such gender or number as the\ncircumstances require. Unless otherwise expressly provided, the word\n10.3\nEnforcement by Successors or Assigns; "including" does not limit the preceding words or terms.\nSurvivability. The covenants and agreements contained herein shall\ninure to the benefit of, and may be enforced by, any legal successors or\nassigns of each Party and shall survive any termination of the\nrelationship between the Parties, whether such termination is at the\ninstance of either Party, and regardless of the reasons therefore.\n10.4 Amendment; Waiver. This Agreement, or any provision\nhereof shall not be waived, changed or terminated except by a writing\nsigned by an authorized officer of both Parties.\n3\nThe parties hereto have executed this Agreement as of the date noted above.\nRecipient Name:\nKBS Capital Advisors LLC\nBy:\nBy:\nName (print):\nName (print):\nTitle:\nTitle:\n4	Non-Disclosure Agreement\nThis Non-Disclosure Agreement (this “Agreement”) is made this ____ day of __________, 20__, by and among KBS SOR Acquisition\nIV, LLC, a Delaware limited liability company (“KBS SOR IV”), KBS SOR Acquisition XVI, LLC, a Delaware limited liability company\n(“KBS SOR XVI”), KBS Strategic Opportunity Limited Partnership, a Delaware limited partnership (“KBS LP”), KBS Strategic Opportunity\nREIT, Inc., a Maryland corporation (“KBS REIT”), KBS Capital Advisors LLC, a Delaware limited liability company (“KBS CA”), and\n__ _ _ _ _ __ _ _ _ _ __ _ _ _ _ __ , a ______________________________ (the “Recipient”) (KBS SOR IV, KBS SOR XVI, KBS LP, KBS REIT and\nKBS CA are collectively referred to as “KBS”; Recipient and KBS are sometimes referred to in this Agreement individually as a “Party” or\ncollectively as the “Parties”).\nKBS and Recipient wish to have discussions during which Recipient may be exposed to important business and/or technical information\nwhich is the property of KBS. Such disclosures may be in the form of written materials, by oral disclosure, or through learned observation, and\nmay include certain plans, designs, data, operations, financial positions and projections, business and technical information, trade secrets,\ntechniques, methods, supplier and vendor contacts and methods, development plans, acquisition plans, financing options and plans, profit\nmargins, services, proprietary information, and other confidential information. Much of this information is the result of substantial expenditures\nof time, money, technical expertise, and resources. And KBS considers this information confidential and/or a trade secret. The unauthorized use\nor disclosure of this information could cause significant harm to KBS’s business. For this reason and in consideration of the mutual covenants\ncontained in this Agreement and the disclosure of confidential information to Recipient, the Parties agree as follows:\n1. Definitions. For purposes of this Agreement, the following\ndefinitions apply:\n1.1\n“Confidential Information” means KBS’s non-public,\nconfidential and proprietary information and specifically includes, but\nis not necessarily limited to, the following: (A) plans, data, operations,\nfinancial positions, historical performance and projections, business and\ntechnical information, techniques, methods, supplier and vendor\ncontacts, development plans, acquisition plans, financing options and\nplans, profit margins, services, methodologies, techniques, designs\n(architectural or otherwise), specifications, tenant lists, tenant\ninformation, leasing plans or strategies, market information, marketing\nplans, personnel information, other financial information, business\nstrategies, rent and pricing policies, contractual relations with\ncustomers and suppliers, business acquisition plans, business\nopportunities, new personnel acquisition plans, and information, books,\nrecords, patent applications, proprietary information, and other\nconfidential information and know-how relating to the business of\nKBS; (B) information received by KBS from third parties under\nconfidential conditions, which information is identified by KBS as\nbeing subject to such conditions; and (C) KBS’s Trade Secrets.\nConfidential Information does not include any information that: (W) is\nor subsequently becomes publicly available without the Recipient’s\nbreach, directly or indirectly, of any obligation owed to KBS; (X)\nbecame known to the Recipient prior to KBS’s disclosure of such\ninformation to the Recipient as can\nbe proven by Recipient’s written records; (Y) became known to the\nRecipient from a source other than KBS other than by the breach of an\nobligation of confidentiality owed to KBS; or (Z) is independently\ndeveloped, without any use of KBS’s Confidential Information, by the\nRecipient as evidenced by its written records.\n1.2\n“Trade Secrets” means information that: derives economic\nvalue, actual or potential, from not being generally known to, or readily\nascertainable by proper means by, other persons who can obtain\neconomic value from its disclosure or use, and that is the subject of\nefforts that are reasonable under the circumstances to maintain its\nsecrecy.\n2. Obligations of Recipient. Recipient covenants and agrees that:\n2.1 It will hold all Confidential Information in trust and in the\nstrictest confidence and protect it in accordance with a standard of care\nthat shall be no less than the care it uses to protect its own information\nof like importance but in no event with less than reasonable care;\n2.2 It will not use, copy, or disclose, or permit any unauthorized\nperson access to, any Confidential Information without KBS’s\npermission, to be granted or withheld in KBS’s sole discretion, and\nprovided that any existing confidentiality notices are included in such\nreproductions or, if no such notices are included,\n1\n“Confidential” or some similar notice is stamped on the Confidential\nInformation;\n2.3 It may only disclose Confidential Information to its directors,\nofficers, employees, consultants, insurers, reinsurers, auditors,\nregulators, attorneys and agents (“Representatives”) provided such\nRepresentatives (i) have a need to know and (ii) are informed, directed\nand obligated by Recipient to treat such Confidential Information in\naccordance with the obligations of this Agreement. Recipient agrees to\nbe liable for any breach of an obligation hereunder by any of its\nRepresentatives;\n2.4\nAll Confidential Information, including all tangible\nembodiments, copies, reproductions and summaries thereof, and any\nother information and materials provided by KBS to the Recipient shall\nremain the sole and exclusive property of KBS.\n2.5 It shall immediately report to KBS any use or disclosure by\nthe Recipient’s employees or any other person of which the Recipient\nhas knowledge of any portion of the Confidential Information without\nauthorization from KBS, and will reasonably cooperate with KBS to\nhelp KBS regain possession of the Confidential Information and\nprevent its further unauthorized use.\n2.6 Upon the written request of KBS, Recipient will effect the\ndestruction of all memoranda, notes, records, tapes, documentation,\ndisks, manuals, files, originals, copies, reproductions and summaries (in\nany form or format, including without limitation, copies resident in long\nor short-term computer storage devices) of, to the extent they concern\nor contain Confidential Information that are in Recipient’s possession,\nwhether made or compiled by Recipient or furnished to Recipient by\nKBS; provided that Recipient, as a regulated entity, may retain the\nConfidential Information for the purposes of and for so long as required\nby any law, court or regulatory agency or authority or its internal\ncompliance procedures. The confidentiality obligations of this\nAgreement shall continue to apply to such Confidential Information\nretained by Recipient or its Representatives for so long as Recipient or\nits Representatives retains such Confidential Information.\n3. Obligation of Recipient. The Recipient’s obligations to maintain\nthe confidentiality of Confidential Information pursuant to Section 2\nspecifically include, but are not limited to, not disclosing Confidential\nInformation to any persons or entities engaged in a field of business\nsimilar to KBS or in the non-traded REIT industry.\n4. Exception. The obligations of confidentiality imposed by this\nAgreement do not apply to any Confidential Information that is\nrequired to be disclosed pursuant to operation of law or legal process,\ngovernmental regulation or court order. If Recipient receives a court\norder or other governmental or administrative decree of appropriate and\nsufficient jurisdiction requiring disclosure of KBS’s Confidential\nInformation, Recipient shall give KBS prompt notice prior to such\ndisclosure, if legally permitted, in order to permit KBS, at its expense,\nto seek a protective order in the case of a court order or other\ngovernmental or administrative decree. Recipient agrees to reasonably\ncooperate with KBS, at KBS’s expense and subject to applicable law, to\nlimit such disclosure. Recipient shall also reasonably cooperate with\nKBS in seeking a protective order subject to the payment by KBS of all\nout-of-pocket expenses incurred by the party providing such\ncooperation at the request of KBS. Recipient shall release only so much\nof KBS’s Confidential Information as Recipient’s counsel advises is\nrequired by such order.\n5. Duration. The restrictions on use and disclosure of Confidential\nInformation shall survive for a period of two (2) years. However, with\nrespect to Confidential Information that constitutes (i) a Trade Secret,\nor (ii) is retained by Recipient pursuant to the second clause of Section\n2.6(ii) above, the confidentiality obligations set forth in this Agreement\nshall continue in effect for so long as such Confidential Information\nremains a Trade Secret, or is retained by Recipient, as applicable.\n6. No Warranties. KBS makes no warranties, express or implied,\nunder this Agreement or by any Confidential Information disclosed\nto Recipient under this Agreement. All information disclosed\nhereunder is provided “as is.”\n7. No Licenses or Other Obligations. By disclosing information to\nthe Recipient, KBS does not grant any express or implied rights or\nlicenses to the Recipient with respect to any patents, copyrights,\ntrademarks, Trade Secrets or other proprietary rights of KBS. Nothing\nin this Agreement shall obligate KBS to disclose any information to\nRecipient or to engage in any other business activity with Recipient.\n8. Representations and Covenants. Recipient represents, covenants,\nacknowledges, and agrees that:\n8.1 It is aware and its Representatives have been advised that\nsecurities laws prohibit any person who has material non-public\ninformation about a public company from purchasing or selling\nsecurities of such company.\n2\n8.2\nThis Agreement (and any Confidential Information) is\ndelivered upon the express condition that Recipient will not publicize in\nany manner whatsoever by way of interviews, responses to questions or\ninquiries, press releases or otherwise, any aspect or proposed aspect of\nthe subject matter of the Confidential Information without prior notice\nto and approval of KBS, except as may otherwise be required by law.\n9. Threatened Breach; Breach; Remedies. In the event of any breach\nof this Agreement by Recipient, including, without limitation, the actual\nor threatened disclosure of Confidential Information without the prior\nexpress written consent of KBS, KBS will suffer an irreparable injury,\nsuch that no remedy at law will afford it adequate protection against, or\nappropriate compensation for, such injury. Accordingly, Recipient\nhereby agrees that KBS shall be entitled, without waiving any other\nrights or remedies, to seek specific performance of the Recipient’s\nobligations as well as such other injunctive relief as may be granted by\na court of competent jurisdiction.\n10. Miscellaneous.\n10.1 Severability. If any provision of this Agreement shall not\nbe valid for any reason, such provision shall be entirely severable from,\nand shall have no effect upon, the remainder of this Agreement. Any\nsuch invalid provision shall be subject to partial enforcement to the\nextent necessary to protect the interest of KBS.\n10.2\nGoverning Law; Forum. This Agreement shall be\nconstrued and controlled by the laws of the State of California without\nreference to the provisions governing conflict of laws, and both parties\nfurther consent to the exclusive jurisdiction by the state and federal\ncourts sitting in the State of California of any dispute arising out of or\nrelated to this Agreement.\n10.3\nEnforcement by Successors or Assigns;\nSurvivability. The covenants and agreements contained herein shall\ninure to the benefit of, and may be enforced by, any legal successors or\nassigns of each Party and shall survive any termination of the\nrelationship between the Parties, whether such termination is at the\ninstance of either Party, and regardless of the reasons therefore.\n10.4 Amendment; Waiver. This Agreement, or any provision\nhereof, shall not be waived, changed or terminated except by a writing\nsigned by an authorized officer of both Parties.\n10.5 Counterparts. This Agreement may be executed in one or\nmore counterparts, each of which will constitute an original, but all of\nwhich together constitute a single document. Any signature duly\naffixed to this Agreement and delivered by facsimile transmission shall\nbe deemed to have the same legal effect as the actual signature of the\nperson signing this Agreement, and any Party receiving delivery of a\nfacsimile copy of the signed Agreement may rely on such as having\nactually been signed.\n10.6 Merger. This Agreement constitutes the entire agreement\nbetween the parties with respect to the subject matter of this\nAgreement, except to the extent of existing non-disclosure agreements\nbetween the parties to which this Agreement supplements (but\nsupersedes to the extent of any inconsistency therein).\n10.7\nNo Implied Waiver. None of the provisions of this\nAgreement shall be deemed to have been waived by any act or\nacquiescence on the part of KBS, its agents, or employees, but only by\nan instrument in writing signed by an authorized officer of KBS. No\nwaiver of any provision of this Agreement shall constitute a waiver of\nany other provision(s) or of the same provision on another occasion.\n10.8 No Assignment. The Recipient may not assign its rights or\nobligations under this Agreement without the express written consent\nof KBS.\n10.9 Headings and Construction. The headings of Sections in\nthis Agreement are provided for convenience only and will not affect\nits construction or interpretation. All references to “Section” or\n“Sections” refer to the corresponding Section or Sections of this\nAgreement unless otherwise specified. All words used in this\nAgreement will be construed to be of such gender or number as the\ncircumstances require. Unless otherwise expressly provided, the word\n“including” does not limit the preceding words or terms.\n3\nThe parties hereto have executed this Agreement as of the date noted above.\nRecipient Name:\nKBS Capital Advisors LLC\nBy:\nBy:\nName (print):\nName (print):\nTitle:\nTitle:\n4
+eef1aedb64d13e1e32b1302378acd0dd.pdf	effective_date jurisdiction party term	Exhibit A\n[FORM OF] NONDISCLOSURE AGREEMENT\n[FOR DIRECTOR OR BOARD OBSERVER USE]\nThis Nondisclosure Agreement (this “Agreement”) by and between WMI Holdings Corp., a Washington corporation (“WMI” or the\n“Company”), and [[Insert Director ’s Name] (“Director”, and together with the Company, each a “Party” and collectively, the “Parties”)]\n[[Insert Observer ’s Name] (“Observer”, and together with the Company, each a “Party” and collectively, the “Parties”)], is dated as of\n[\n], 2014.\n1. General. In connection with [Director serving on the][Observer attending meetings of the] Board of Directors of the Company, [Director]\n[Observer] acknowledges that he or she will receive, from time to time, certain “Confidential Material” (as defined in Section 2 below).\n2. Definitions. The term “Confidential Material” means information concerning the Company or its personnel, board dynamics, business,\nfinancial condition, operations, assets or liabilities, whether disclosed orally or disclosed or accessed in written, electronic or other form or\nmedia, whether or not marked, designated or otherwise identified as “confidential.” The term Confidential Material does not include information\nwhich (i) is generally available to the public other than as a result of a disclosure by [Director][Observer] in breach of this Agreement, (ii) was\nwithin [Director ’s][Observer’s] possession prior to its being furnished to [Director][Observer], provided that the source of such information was\nnot known by [Director][Observer] to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, the Company with respect to such information, or (iii) is or becomes available to [Director][Observer] on a non-confidential\nbasis from a source other than the Company, provided that such source is not known by [Director][Observer] to be bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information. [Director]\n[Observer] shall ensure that any of its representatives who receive Confidential Material fully understand the terms of this Agreement and\n[Director][Observer] shall take all commercially reasonable steps to protect the Confidential Material against disclosure, misappropriation,\nmisuse, loss or theft in violation of this Agreement.\nAll Confidential Material is and shall remain the property of the Company. Upon request of the Company, the [Director][Observer] shall\nreturn or destroy, in the [Director ’s][Observer ’s] sole discretion, all Confidential Material in his or her possession and confirm the same to the\nCompany in writing; provided, that the [Director][Observer] shall be permitted to retain Confidential Material to comply with applicable legal\nand/or regulatory requirements, and provided, further, that electronic records maintained in archival form are required to be destroyed only to the\nextent reasonably practicable.\n3. Use of Confidential Material. [Director shall use the Confidential Material solely for the purpose of fulfilling his or her board of director\nduties and responsibilities and shall keep the Confidential Material confidential in accordance with the terms hereof.]1\n1 Solely for Director confidentiality agreement.\n1\n[Director][Observer] will not disclose any of the Confidential Material in any manner whatsoever; provided, however, that any of such\ninformation may be disclosed:\n(i) for so long as [Director][Observer] is employed by or as an advisor to Kohlberg Kravis Roberts & Co. L.P. (“KKR”) or one of its\nsubsidiaries, to KKR and its affiliates; provided that KKR executes a confidentiality agreement in substantially the form hereto (the “KKR\nConfidentiality Agreement” 2); provided, further, that KKR and the [Director][Observer] shall only be permitted to share Confidential Material\nwith affiliates of KKR to the extent that such affiliates are advised of the confidentiality and use obligations in the KKR Confidentiality\nAgreement and agree with KKR to be bound by such provisions; provided, still further, that KKR will be responsible for any breach by its\naffiliates of the confidentiality and use obligations therein, or\n(ii) as required by law or legal process or required or requested by applicable regulatory authority (including, for the avoidance of doubt,\npursuant to an audit or examination by a regulator, bank examiner or self-regulatory organization including in the course of routine supervisory\nexamination or regulatory oversight by banking regulatory authorities with jurisdiction over KKR and its affiliates); provided, that if the\n[Director][Observer] or KKR or any of its affiliates are so requested or required to disclose any Confidential Material, the [Director][Observer]\nor KKR, as appropriate, will, to the extent legally permissible, notify the Company promptly of the existence, terms and circumstances\nsurrounding such a request or requirement so that the Company may, in its sole discretion, seek a protective order or other appropriate remedy\nand/or waive compliance with the terms of this Agreement (it being understood that no such notice will be required if the [Director][Observer] or\nKKR or any of its affiliates are requested or required to disclose Confidential Material in the course of routine supervisory examinations or\nregulatory oversight by banking regulatory authorities with jurisdiction over KKR or any such affiliate); provided, further, that the [Director]\n[Observer] and KKR or any of its affiliates will not oppose, and upon the Company’s request and at the Company’s expense, will consult with\nthe Company on seeking a protective order or other remedy; provided, still further, that, if in the absence of a protective order or other remedy or\nthe receipt of a waiver from the Company, the [Director][Observer] or KKR or any of its affiliates is, nonetheless, legally required based upon\nthe advice of KKR’s or such affiliate’s counsel to disclose any Confidential Information, the [Director][Observer] or KKR or any of its affiliates,\nas applicable, may make such disclosure without liability under this Agreement, provided that the [Director][Observer] or KKR or any of its\naffiliates, as applicable, (x) furnishes only that portion of the Confidential Information that is legally required based upon the advice of KKR’s or\nsuch affiliate’s counsel to be disclosed, (y) gives the Company notice of the information to be disclosed as promptly as is practicable (except, for\nthe avoidance of doubt, in the case of routine supervisory examinations or regulatory oversight by banking regulatory authorities with\njurisdiction over KKR or any such affiliate) and (z) uses commercially reasonable efforts to consult with the Company, at the Company’s request\nand expense, on seeking an appropriate protective order or other reliable assurance that confidential treatment will be accorded to all such\nConfidential Material.\n2 KKR Confi to include the following: “For the avoidance of doubt, the Confidentiality Agreement dated as of May 29, 2013 (the “Existing\nConfidentiality Agreement”) between KKR & Co. L.P. and the Company shall not apply to any information provided to KKR pursuant to this\nAgreement.”\n2\n[If Director willfully breaches this Agreement or KKR or one of its controlled affiliates willfully breaches the KKR Confidentiality\nAgreement, Director will tender his or her resignation from the Board and its committees upon the request of the Board.]\n4. Governing Law; Consent to Jurisdiction. This Agreement shall be deemed to be made in and in all respects shall be interpreted,\nconstrued and governed by and in accordance with the laws of the State of New York (except to the extent that mandatory provisions of\nWashington law are applicable).\n5. Term. This Agreement and the provisions of this Agreement shall terminate on the first anniversary following the date that is the earlier\nof (i) the date that [Director][Observer] ceases to be [a director][an observer] of the Company and (ii) the date that [Director][Observer] ceases to\nbe employed by or an advisor to KKR and its affiliates.\n6. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n7. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be\ndeemed to constitute a single instrument.\n[Remainder of Page Intentionally Left Blank]\n3\nIN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be signed by its duly authorized representatives as of the\ndate written below.\nWMI Holdings Corp.\n[DIRECTOR][OBSERVER]\nADDRESS FOR NOTICE:\nADDRESS FOR NOTICE:\n[\n]\nc/o Kohlberg Kravis Roberts & Co. L .P.\n9 West 57th Street\nBy:\nSuite 4200\nName:\nNew York, New York 10019\nTitle:\nBy:\nName:\nTitle:\n[Signature Page to Nondisclosure Agreement]	Exhibit A\n[FORM OF] NONDISCLOSURE AGREEMENT\n[FOR DIRECTOR OR BOARD OBSERVER USE]\nThis Nondisclosure Agreement (this “Agreement”) by and between WMI Holdings Corp., a Washington corporation (“WMI” or the\n“Company”), and [[Insert Director’s Name] (“Director”, and together with the Company, each a “Party” and collectively, the “Parties”)]\n[[Insert Observer’s Name] (“Observer”, and together with the Company, each a “Party” and collectively, the “Parties”)], is dated as of\n[ 1, 2014.\n1. General. In connection with [Director serving on the][Observer attending meetings of the] Board of Directors of the Company, [Director]\n[Observer] acknowledges that he or she will receive, from time to time, certain “Confidential Material” (as defined in Section 2 below).\n2. Definitions. The term “Confidential Material” means information concerning the Company or its personnel, board dynamics, business,\nfinancial condition, operations, assets or liabilities, whether disclosed orally or disclosed or accessed in written, electronic or other form or\nmedia, whether or not marked, designated or otherwise identified as “confidential.” The term Confidential Material does not include information\nwhich (i) is generally available to the public other than as a result of a disclosure by [Director][Observer] in breach of this Agreement, (ii) was\nwithin [Director’s][Observer’s] possession prior to its being furnished to [Director][Observer], provided that the source of such information was\nnot known by [Director][Observer] to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, the Company with respect to such information, or (iii) is or becomes available to [Director][Observer] on a non-confidential\nbasis from a source other than the Company, provided that such source is not known by [Director][Observer] to be bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information. [Director]\n[Observer] shall ensure that any of its representatives who receive Confidential Material fully understand the terms of this Agreement and\n[Director][Observer] shall take all commercially reasonable steps to protect the Confidential Material against disclosure, misappropriation,\nmisuse, loss or theft in violation of this Agreement.\nAll Confidential Material is and shall remain the property of the Company. Upon request of the Company, the [Director][Observer] shall\nreturn or destroy, in the [Director’s][Observer’s] sole discretion, all Confidential Material in his or her possession and confirm the same to the\nCompany in writing; provided, that the [Director][Observer] shall be permitted to retain Confidential Material to comply with applicable legal\nand/or regulatory requirements, and provided, further, that electronic records maintained in archival form are required to be destroyed only to the\nextent reasonably practicable.\n3. Use of Confidential Material. [Director shall use the Confidential Material solely for the purpose of fulfilling his or her board of director\nduties and responsibilities and shall keep the Confidential Material confidential in accordance with the terms hereof.]1\n1 Solely for Director confidentiality agreement.\n[Director][Observer] will not disclose any of the Confidential Material in any manner whatsoever; provided, however, that any of such\ninformation may be disclosed:\n(i) for so long as [Director][Observer] is employed by or as an advisor to Kohlberg Kravis Roberts & Co. L.P. (“KKR”) or one of its\nsubsidiaries, to KKR and its affiliates; provided that KKR executes a confidentiality agreement in substantially the form hereto (the “KKR\nConfidentiality Agreement” 2); provided, further, that KKR and the [Director][Observer] shall only be permitted to share Confidential Material\nwith affiliates of KKR to the extent that such affiliates are advised of the confidentiality and use obligations in the KKR Confidentiality\nAgreement and agree with KKR to be bound by such provisions; provided, still further, that KKR will be responsible for any breach by its\naffiliates of the confidentiality and use obligations therein, or\n(ii) as required by law or legal process or required or requested by applicable regulatory authority (including, for the avoidance of doubt,\npursuant to an audit or examination by a regulator, bank examiner or self-regulatory organization including in the course of routine supervisory\nexamination or regulatory oversight by banking regulatory authorities with jurisdiction over KKR and its affiliates); provided, that if the\n[Director][Observer] or KKR or any of its affiliates are so requested or required to disclose any Confidential Material, the [Director][Observer]\nor KKR, as appropriate, will, to the extent legally permissible, notify the Company promptly of the existence, terms and circumstances\nsurrounding such a request or requirement so that the Company may, in its sole discretion, seek a protective order or other appropriate remedy\nand/or waive compliance with the terms of this Agreement (it being understood that no such notice will be required if the [Director][Observer] or\nKKR or any of its affiliates are requested or required to disclose Confidential Material in the course of routine supervisory examinations or\nregulatory oversight by banking regulatory authorities with jurisdiction over KKR or any such affiliate); provided, further, that the [Director]\n[Observer] and KKR or any of its affiliates will not oppose, and upon the Company’s request and at the Company’s expense, will consult with\nthe Company on seeking a protective order or other remedy; provided, still further, that, if in the absence of a protective order or other remedy or\nthe receipt of a waiver from the Company, the [Director][Observer] or KKR or any of its affiliates is, nonetheless, legally required based upon\nthe advice of KKR’s or such affiliate’s counsel to disclose any Confidential Information, the [Director][Observer] or KKR or any of its affiliates,\nas applicable, may make such disclosure without liability under this Agreement, provided that the [Director][Observer] or KKR or any of its\naffiliates, as applicable, (x) furnishes only that portion of the Confidential Information that is legally required based upon the advice of KKR’s or\nsuch affiliate’s counsel to be disclosed, (y) gives the Company notice of the information to be disclosed as promptly as is practicable (except, for\nthe avoidance of doubt, in the case of routine supervisory examinations or regulatory oversight by banking regulatory authorities with\njurisdiction over KKR or any such affiliate) and (z) uses commercially reasonable efforts to consult with the Company, at the Company’s request\nand expense, on seeking an appropriate protective order or other reliable assurance that confidential treatment will be accorded to all such\nConfidential Material.\n2 KKR Confi to include the following: “For the avoidance of doubt, the Confidentiality Agreement dated as of May 29, 2013 (the “Existing\nConfidentiality Agreement”) between KKR & Co. L.P. and the Company shall not apply to any information provided to KKR pursuant to this\nAgreement.”\n[If Director willfully breaches this Agreement or KKR or one of its controlled affiliates willfully breaches the KKR Confidentiality\nAgreement, Director will tender his or her resignation from the Board and its committees upon the request of the Board.]\n4. Governing Law; Consent to Jurisdiction. This Agreement shall be deemed to be made in and in all respects shall be interpreted,\nconstrued and governed by and in accordance with the laws of the State of New York (except to the extent that mandatory provisions of\nWashington law are applicable).\n5. Term. This Agreement and the provisions of this Agreement shall terminate on the first anniversary following the date that is the earlier\nof (i) the date that [Director][Observer] ceases to be [a director][an observer] of the Company and (ii) the date that [Director][Observer] ceases to\nbe employed by or an advisor to KKR and its affiliates.\n6. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n \n7. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be\ndeemed to constitute a single instrument.\n[Remainder of Page Intentionally Left Blank]\n3\nIN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be signed by its duly authorized representatives as of the\ndate written below.\nWMI Holdings Corp. [DIRECTOR][OBSERVER]\nADDRESS FOR NOTICE: ADDRESS FOR NOTICE:\n[ ] c/o Kohlberg Kravis Roberts & Co. L.P.\n9 West 57th Street\nBy: Suite 4200\nName: New York, New York 10019\nTitle:\nBy:\nName:\nTitle:\n[Signature Page to Nondisclosure Agreement]	Exhibit A\n[FORM OF] NONDISCLOSURE AGREEMENT\n[FOR DIRECTOR OR BOARD OBSERVER USE]\nThis Nondisclosure Agreement (this "Agreement") by and between WMI Holdings Corp., a Washington corporation ("WMI" or the\n"Company"), and [[Insert Director's Name] ("Director", and together with the Company, each a "Party" and collectively, the "Parties")]\n[[Insert Observer's Name] ("Observer", and together with the Company, each a "Party" and collectively, the "Parties")], is dated as of\n[\n], 2014.\n1. General. In connection with [Director serving on the ][Observer attending meetings of the] Board of Directors of the Company, [Director]\n[Observer] acknowledges that he or she will receive, from time to time, certain "Confidential Material" (as defined in Section 2 below).\n2. Definitions. The term "Confidential Material" means information concerning the Company or its personnel, board dynamics, business,\nfinancial condition, operations, assets or liabilities, whether disclosed orally or disclosed or accessed in written, electronic or other form or\nmedia, whether or not marked, designated or otherwise identified as "confidential." The term Confidential Material does not include information\nwhich (i) is generally available to the public other than as a result of a disclosure by [Director][Observer] in breach of this Agreement, (ii) was\nwithin [Director's][Observer's] possession prior to its being furnished to irector][Observer], provided that the source of such information was\nnot known by [Director][Observer to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, the Company with respect to such information, or (iii) is or becomes available to Director][Observer on a non-confidential\nbasis from a source other than the Company, provided that such source is not known by Director][Observer] to be bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information. [Director]\n[Observer] shall ensure that any of its representatives who receive Confidential Material fully understand the terms of this Agreement and\n[Director][Observer] shall take all commercially reasonable steps to protect the Confidential Material against disclosure, misappropriation,\nmisuse, loss or theft in violation of this Agreement.\nAll Confidential Material is and shall remain the property of the Company. Upon request of the Company, the Director][Obser [Observer] shall\nreturn or destroy, in the [Director's][Observer's sole discretion, all Confidential Material in his or her possession and confirm the same to the\nCompany in writing; provided, that the Director][Observer] shall be permitted to retain Confidential Material to comply with applicable legal\nand/or regulatory requirements, and provided, further, that electronic records maintained in archival form are required to be destroyed only to\nthe\nextent reasonably practicable.\n3. Use of Confidential Material. [Director shall use the Confidential Material solely for the purpose of fulfilling his or her board of director\nduties and responsibilities and shall keep the Confidential Material confidential in accordance with the terms hereof.]1\n1 Solely for Director confidentiality agreement.\n1\nDirector][Observer. will not disclose any of the Confidential Material in any manner whatsoever; provided, however, that any of such\ninformation may be disclosed:\n(i) for so long as irector][Observer] is employed by or as an advisor to Kohlberg Kravis Roberts & Co. L.P. ("KKR") or one of its\nsubsidiaries, to KKR and its affiliates; provided that KKR executes a confidentiality agreement in substantially the form hereto (the "KKR\nConfidentiality Agreement" 2); provided, further, that KKR and the [Director][Observer] shall only be permitted to share Confidential Material\nwith affiliates of KKR to the extent that such affiliates are advised of the confidentiality and use obligations in the KKR Confidentiality\nAgreement and agree with KKR to be bound by such provisions; provided, still further, that KKR will be responsible for any breach by its\naffiliates of the confidentiality and use obligations therein, or\n(ii) as required by law or legal process or required or requested by applicable regulatory authority (including, for the avoidance of doubt,\npursuant to an audit or examination by a regulator, bank examiner or self-regulatory organization including in the course of routine supervisory\nexamination or regulatory oversight by banking regulatory authorities with jurisdiction over KKR and its affiliates); provided, that if the\n[Director][Observer] or KKR or any of its affiliates are so requested or required to disclose any Confidential Material, the Director][Observer]\nor KKR, as appropriate, will, to the extent legally permissible, notify the Company promptly of the existence, terms and circumstances\nsurrounding such a request or requirement So that the Company may, in its sole discretion, seek a protective order or other appropriate remedy\nand/or\nwaive compliance with the terms of this Agreement (it being understood that no such notice will be required if the Director][Observer]\nor\nKKR or any of its affiliates are requested or required to disclose Confidential Material in the course of routine supervisory examinations or\nregulatory oversight by banking regulatory authorities with jurisdiction over KKR or any such affiliate); provided, further, that the [Director]\n[Observer] and KKR or any of its affiliates will not oppose, and upon the Company's request and at the Company's expense, will consult with\nthe Company on seeking a protective order or other remedy; provided, still further, that, if in the absence of a protective order or other remedy or\nthe receipt of a waiver from the Company, the Director][Observer] or KKR or any of its affiliates is, nonetheless, legally required based upon\nthe advice of KKR'S or such affiliate's counsel to disclose any Confidential Information, the ctor][Observer or KKR or any of its affiliates,\nas applicable, may make such disclosure without liability under this Agreement, provided that the [Director][Observer or KKR or any of its\naffiliates, as applicable, (x) furnishes only that portion of the Confidential Information that is legally required based upon the advice of KKR'S or\nsuch affiliate's counsel to be disclosed, (y) gives the Company notice of the information to be disclosed as promptly as is practicable (except, for\nthe avoidance of doubt, in the case of routine supervisory examinations or regulatory oversight by banking regulatory authorities with\njurisdiction over KKR or any such affiliate) and (z) uses commercially reasonable efforts to consult with the Company, at the Company's request\nand expense, on seeking an appropriate protective order or other reliable assurance that confidential treatment will be accorded to all such\nConfidential Material.\n2 KKR Confi to include the following: "For the avoidance of doubt, the Confidentiality Agreement dated as of May 29, 2013 (the "Existing\nConfidentiality Agreement") between KKR & Co. L.P. and the Company shall not apply to any information provided to KKR pursuant to this\nAgreement."\n2\n[If Director willfully breaches this Agreement or KKR or one of its controlled affiliates willfully breaches the KKR Confidentiality\nAgreement, Director will tender his or her resignation from the Board and its committees upon the request of the Board.]\n4. Governing Law; Consent to Jurisdiction. This Agreement shall be deemed to be made in and in all respects shall be interpreted,\nconstrued and governed by and in accordance with the laws of the State of New York (except to the extent that mandatory provisions of\nWashington law are applicable).\n5. Term. This Agreement and the provisions of this Agreement shall terminate on the first anniversary following the date that is the earlier\nof\n(i) the date that Director][Observer ceases to be [a director] [an observer] of the Company and (ii) the date that [Director][Observer ceases to\nbe employed by or an advisor to KKR and its affiliates.\n6.\nEntire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n7. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be\ndeemed to constitute a single instrument.\n[Remainder of Page Intentionally Left Blank]\n3\nIN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be signed by its duly authorized representatives as of the\ndate written below.\nWMI Holdings Corp.\n[DIRECTORI[OBSERVER]\nADDRESS FOR NOTICE:\nADDRESS FOR NOTICE:\n[\n]\nc/o Kohlberg Kravis Roberts & Co. L.P.\n9 West 57th Street\nBy:\nSuite 4200\nName:\nNew York, New York 10019\nTitle:\nBy:\nName:\nTitle:\n[Signature Page to Nondisclosure Agreement]	Exhibit A\n[FORM OF] NONDISCLOSURE AGREEMENT\n[FOR DIRECTOR OR BOARD OBSERVER USE]\nThis Nondisclosure Agreement (this “Agreement”) by and between WMI Holdings Corp., a Washington corporation (“WMI” or the\n“Company”), and [[Insert Director ’s Name] (“Director”, and together with the Company, each a “Party” and collectively, the “Parties”)]\n[[Insert Observer ’s Name] (“Observer”, and together with the Company, each a “Party” and collectively, the “Parties”)], is dated as of\n[\n], 2014.\n1. General. In connection with [Director serving on the][Observer attending meetings of the] Board of Directors of the Company, [Director]\n[Observer] acknowledges that he or she will receive, from time to time, certain “Confidential Material” (as defined in Section 2 below).\n2. Definitions. The term “Confidential Material” means information concerning the Company or its personnel, board dynamics, business,\nfinancial condition, operations, assets or liabilities, whether disclosed orally or disclosed or accessed in written, electronic or other form or\nmedia, whether or not marked, designated or otherwise identified as “confidential.” The term Confidential Material does not include information\nwhich (i) is generally available to the public other than as a result of a disclosure by [Director][Observer] in breach of this Agreement, (ii) was\nwithin [Director ’s][Observer’s] possession prior to its being furnished to [Director][Observer], provided that the source of such information was\nnot known by [Director][Observer] to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, the Company with respect to such information, or (iii) is or becomes available to [Director][Observer] on a non-confidential\nbasis from a source other than the Company, provided that such source is not known by [Director][Observer] to be bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information. [Director]\n[Observer] shall ensure that any of its representatives who receive Confidential Material fully understand the terms of this Agreement and\n[Director][Observer] shall take all commercially reasonable steps to protect the Confidential Material against disclosure, misappropriation,\nmisuse, loss or theft in violation of this Agreement.\nAll Confidential Material is and shall remain the property of the Company. Upon request of the Company, the [Director][Observer] shall\nreturn or destroy, in the [Director ’s][Observer ’s] sole discretion, all Confidential Material in his or her possession and confirm the same to the\nCompany in writing; provided, that the [Director][Observer] shall be permitted to retain Confidential Material to comply with applicable legal\nand/or regulatory requirements, and provided, further, that electronic records maintained in archival form are required to be destroyed only to the\nextent reasonably practicable.\n3. Use of Confidential Material. [Director shall use the Confidential Material solely for the purpose of fulfilling his or her board of director\nduties and responsibilities and shall keep the Confidential Material confidential in accordance with the terms hereof.]1\n1 Solely for Director confidentiality agreement.\n1\n[Director][Observer] will not disclose any of the Confidential Material in any manner whatsoever; provided, however, that any of such\ninformation may be disclosed:\n(i) for so long as [Director][Observer] is employed by or as an advisor to Kohlberg Kravis Roberts & Co. L.P. (“KKR”) or one of its\nsubsidiaries, to KKR and its affiliates; provided that KKR executes a confidentiality agreement in substantially the form hereto (the “KKR\nConfidentiality Agreement” 2); provided, further, that KKR and the [Director][Observer] shall only be permitted to share Confidential Material\nwith affiliates of KKR to the extent that such affiliates are advised of the confidentiality and use obligations in the KKR Confidentiality\nAgreement and agree with KKR to be bound by such provisions; provided, still further, that KKR will be responsible for any breach by its\naffiliates of the confidentiality and use obligations therein, or\n(ii) as required by law or legal process or required or requested by applicable regulatory authority (including, for the avoidance of doubt,\npursuant to an audit or examination by a regulator, bank examiner or self-regulatory organization including in the course of routine supervisory\nexamination or regulatory oversight by banking regulatory authorities with jurisdiction over KKR and its affiliates); provided, that if the\n[Director][Observer] or KKR or any of its affiliates are so requested or required to disclose any Confidential Material, the [Director][Observer]\nor KKR, as appropriate, will, to the extent legally permissible, notify the Company promptly of the existence, terms and circumstances\nsurrounding such a request or requirement so that the Company may, in its sole discretion, seek a protective order or other appropriate remedy\nand/or waive compliance with the terms of this Agreement (it being understood that no such notice will be required if the [Director][Observer] or\nKKR or any of its affiliates are requested or required to disclose Confidential Material in the course of routine supervisory examinations or\nregulatory oversight by banking regulatory authorities with jurisdiction over KKR or any such affiliate); provided, further, that the [Director]\n[Observer] and KKR or any of its affiliates will not oppose, and upon the Company’s request and at the Company’s expense, will consult with\nthe Company on seeking a protective order or other remedy; provided, still further, that, if in the absence of a protective order or other remedy or\nthe receipt of a waiver from the Company, the [Director][Observer] or KKR or any of its affiliates is, nonetheless, legally required based upon\nthe advice of KKR’s or such affiliate’s counsel to disclose any Confidential Information, the [Director][Observer] or KKR or any of its affiliates,\nas applicable, may make such disclosure without liability under this Agreement, provided that the [Director][Observer] or KKR or any of its\naffiliates, as applicable, (x) furnishes only that portion of the Confidential Information that is legally required based upon the advice of KKR’s or\nsuch affiliate’s counsel to be disclosed, (y) gives the Company notice of the information to be disclosed as promptly as is practicable (except, for\nthe avoidance of doubt, in the case of routine supervisory examinations or regulatory oversight by banking regulatory authorities with\njurisdiction over KKR or any such affiliate) and (z) uses commercially reasonable efforts to consult with the Company, at the Company’s request\nand expense, on seeking an appropriate protective order or other reliable assurance that confidential treatment will be accorded to all such\nConfidential Material.\n2 KKR Confi to include the following: “For the avoidance of doubt, the Confidentiality Agreement dated as of May 29, 2013 (the “Existing\nConfidentiality Agreement”) between KKR & Co. L.P. and the Company shall not apply to any information provided to KKR pursuant to this\nAgreement.”\n2\n[If Director willfully breaches this Agreement or KKR or one of its controlled affiliates willfully breaches the KKR Confidentiality\nAgreement, Director will tender his or her resignation from the Board and its committees upon the request of the Board.]\n4. Governing Law; Consent to Jurisdiction. This Agreement shall be deemed to be made in and in all respects shall be interpreted,\nconstrued and governed by and in accordance with the laws of the State of New York (except to the extent that mandatory provisions of\nWashington law are applicable).\n5. Term. This Agreement and the provisions of this Agreement shall terminate on the first anniversary following the date that is the earlier\nof (i) the date that [Director][Observer] ceases to be [a director][an observer] of the Company and (ii) the date that [Director][Observer] ceases to\nbe employed by or an advisor to KKR and its affiliates.\n6. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n7. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which shall be\ndeemed to constitute a single instrument.\n[Remainder of Page Intentionally Left Blank]\n3\nIN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be signed by its duly authorized representatives as of the\ndate written below.\nWMI Holdings Corp.\n[DIRECTOR][OBSERVER]\nADDRESS FOR NOTICE:\nADDRESS FOR NOTICE:\n[\n]\nc/o Kohlberg Kravis Roberts & Co. L .P.\n9 West 57th Street\nBy:\nSuite 4200\nName:\nNew York, New York 10019\nTitle:\nBy:\nName:\nTitle:\n[Signature Page to Nondisclosure Agreement]
+ef4cd4acc1245ad2d7368d007efedfb6.pdf	jurisdiction party	Ohr Pharmaceutical, Inc. S -4/A\nExhibit 10.26\nNeuBase Therapeutics, Inc.\nEMPLOYEE PROPRIETARY INFORMATION\nAND INVENTIONS ASSIGNMENT AGREEMENT\nIn consideration of my employment or continued employment by NeuBase Therapeutics, Inc. (the “Company”),\nand the compensation now and hereafter paid to me, I hereby agree as follows:\n1.\nNondisclosure.\n1.1\nRecognition of the Company’s Rights; Nondisclosure. At all times during my employment with the\nCompany or one or more of its affiliates, including any parent or any subsidiary of the Company (collectively, the\n“Company Group”) and thereafter, I will hold in strictest confidence and will not disclose, use, copy, reverse-engineer,\ndistribute, misappropriate, lecture upon or publish any of the Company Group’s Proprietary Information (defined below),\nexcept as such disclosure, use or publication may be required in connection with my work for the Company Group, or\nunless an executive officer of the Company expressly authorizes such in writing. I will obtain the Company’s written\napproval before publishing or submitting for publication any material (written, verbal or otherwise) that relates to my work\nat the Company Group and/or incorporates any Proprietary Information. I hereby assign to the Company any rights I may\nhave or acquire in any and all such Proprietary Information and recognize that all Proprietary Information shall be the sole\nand exclusive property of the Company Group and its assigns.\n1.2\nProprietary Information. The term “Proprietary Information” shall mean any and all confidential\nand/or proprietary knowledge, data or information of the Company Group or related to the Company Group’s business or\nits actual or demonstrably anticipated research or development. By way of illustration but not limitation, “Proprietary\nInformation” includes (a) trade secrets, technical data, research, products, services, ideas, inventions, mask works,\ncompositions of matter, ideas, plans, applications, concepts, improvements, works of art, manuals, laboratory notebooks,\npolicies, information, notes, analyses, compilations, drawings, materials, processes, studies, samples, processes,\nformulas, artwork, biological materials, compounds, compositions of matter, source and object codes, data and\ndatabases, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and\ntechniques, whether or not patentable, copyrightable or otherwise legally protectable (hereinafter collectively referred to\nas “Inventions”); and (b) information regarding plans for research, development, new products, services, marketing and\nselling, business plans, plans for research and development, budgets and unpublished financial statements, contracts,\nlicenses, prices and costs, suppliers and customers; (c) information regarding the skills and compensation of other\nemployees, contractors and any other service providers of the Company Group; and (d) the existence of any business\ndiscussions, negotiations or agreements between the Company Group and any third party.\n1.3\nThird Party Information. I understand, in addition, that the Company Group has received and in the\nfuture will receive from third parties confidential or proprietary information (“Third Party Information”) subject to a duty\non the Company Group’s part to maintain the confidentiality of such information and to use it only for certain limited\npurposes. During the term of my employment and thereafter, I will hold Third Party Information in the strictest confidence\nand will not disclose to anyone (other than the Company Group’s personnel who need to know such information in\nconnection with their work for the Company Group) or use, except in connection with my work for the Company Group,\nThird Party Information unless expressly authorized by an executive officer of the Company in writing.\n1.4\nNo Improper Use of Information of Prior Employers and Others. I represent that my employment by\nthe Company Group does not and will not breach any agreement with any former employer, including any noncompete\nagreement or any agreement to keep in confidence or refrain from using information acquired by me prior to my\nemployment by the Company Group. I further represent that I have not entered into, and will not enter into, any\nagreement, either written or oral, in conflict with any of my obligations under this Employee Proprietary Information and\nInventions Assignment Agreement (this “Agreement”). During my employment by the Company Group, I will not\nimproperly make use of, or disclose, any confidential information or trade secrets, if any, of any former employer or any\nother person to whom I have an obligation of confidentiality, and I will not bring onto the premises of the Company Group\nor use any unpublished documents or any property belonging to any former employer or any other person to whom I\nhave an obligation of confidentiality unless consented to in writing by that former employer or person. I will use in the\nperformance of my duties only information which is generally known and used by persons with training and experience\ncomparable to my own, which is common knowledge in the industry or otherwise legally in the public domain, or which is\notherwise provided or developed by the Company Group.\n1\n1.5\nDefend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, I acknowledge that I will\nnot have criminal or civil liability to the Company under any Federal or State trade secret law for the disclosure of a trade\nsecret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to\nan attorney and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, if I file a\nlawsuit for retaliation by the Company for reporting a suspected violation of law, I may disclose the trade secret to my\nattorney and may use the trade secret information in the court proceeding, if I (X) file any document containing the trade\nsecret under seal and (Y) do not disclose the trade secret, except pursuant to court order.\n2.\nAssignment Of Inventions.\n2.1\nProprietary Rights. The term “Proprietary Rights” shall mean all trade secrets, patents, patent\napplications, copyrights, mask works, trademarks and other intellectual property rights, along with any registrations of or\napplications to register such rights and Moral Rights recognized by the laws of any jurisdiction or country. “Moral Rights”\nshall mean any rights to claim authorship of or credit on an Invention, to object to or prevent the modification or\ndestruction of any Invention or Prior Invention licensed to the Company under Section 2.2, or to withdraw from circulation\nor control the publication or distribution of any Inventions or Prior Inventions licensed to the Company under Section 2.2,\nand any similar right, existing under judicial or statutory law of any country or subdivision thereof in the world, or under\nany treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right.”\n2.2\nPrior Inventions. Inventions, if any, patented or unpatented, which I made prior to the commencement\nof my employment with the Company Group are excluded from the scope of this Agreement. To preclude any possible\nuncertainty, I have set forth on Exhibit B (Prior Inventions) attached hereto a complete list of all Inventions that I have,\nalone or jointly with others, conceived, developed or reduced to practice or caused to be conceived, developed or\nreduced to practice prior to the commencement of my employment with the Company Group or that I have an ownership\ninterest in or which I have a license to use, that I consider to be my property or the property of third parties and that I wish\nto have excluded from the scope of this Agreement (collectively referred to as “Prior Inventions”). If disclosure of any\nsuch Prior Invention would cause me to violate any prior confidentiality agreement, I understand that I am not to list such\nPrior Inventions in Exhibit B but am only to disclose a cursory name for each such invention, a listing of the party(ies) to\nwhom it belongs and the fact that full disclosure as to such inventions has not been made for that reason. A space is\nprovided on Exhibit B for such purpose. If no such disclosure is attached, I represent that there are no Prior Inventions.\nIf, in the course of my employment with the Company Group, I incorporate a Prior Invention into a Company Group\nproduct, process, machine or other work, the Company is hereby granted and shall have a nonexclusive, royalty-free,\nfully paid-up, irrevocable, assumable, perpetual and worldwide license (with rights to sublicense through multiple tiers of\nsublicensees) to reproduce, make, have made, make derivative works of, copy, distribute, publicly perform, publicly\ndisplay in any form or medium, whether now known or later developed, modify, use, sell, import, offer for sale and\nexercise any and all present or future rights in, such Prior Invention. Notwithstanding the foregoing, I agree that I will not\nincorporate, or permit to be incorporated, Prior Inventions in any Company Group Inventions without the Company’s prior\nwritten consent. Notwithstanding the foregoing, I acknowledge and agree that if I use any of my Prior Inventions in the\nscope of my employment, or include them in any product or service of the Company Group, I hereby grant to the\nCompany a perpetual, irrevocable, nonexclusive, world-wide, royalty-free license to use, disclose, make, sell, copy,\ndistribute, modify and create works based on, perform or display such Prior Inventions and to sublicense third parties with\nthe same rights.\n2.3\nAssignment of Inventions. Subject to Sections 2.4, and 2.6, without further compensation, I hereby\nassign and agree to assign in the future (when any such Inventions or Proprietary Rights are first reduced to practice or\nfirst fixed in a tangible medium, as applicable) to the Company all my right, title and interest in and to any and all\nInventions (and all Proprietary Rights with respect thereto) whether or not patentable, copyrightable or otherwise legally\nprotectable, made or conceived or reduced to practice or learned by me, either alone or jointly with others, during the\nperiod of my employment with the Company Group. I understand that this assignment is intended to, and does, extend to\nsubject matters currently in existence, those in development, as well as those which have not yet been created.\nInventions assigned to the Company, or to a third party as directed by the Company pursuant to this Section 2, are\nhereinafter referred to as “Company Group Inventions.”\n2.4\nNonassignable Inventions. This Agreement does not apply to an Invention which qualifies fully as a\nnonassignable Invention under Section 2870 of the California Labor Code (hereinafter “Section 2870”). I have reviewed\nthe notification on Exhibit A (Limited Exclusion Notification) and agree that my signature acknowledges receipt of the\nnotification.\n2\n2.5\nObligation to Keep the Company Informed. During the period of my employment and for six (6)\nmonths after termination of my employment with the Company Group, I will promptly disclose to the Company fully and in\nwriting all Inventions authored, conceived or reduced to practice by me, either alone or jointly with others. In addition, I\nwill promptly disclose to the Company all patent applications filed by me or on my behalf or in which I am named as an\ninventor or co-inventor within a year after termination of employment. At the time of each such disclosure, I will advise the\nCompany in writing of any Inventions that I believe fully qualify for protection under Section 2870; and I will at that time\nprovide to the Company in writing all evidence necessary to substantiate that belief. The Company will keep in\nconfidence and will not use for any purpose or disclose to third parties without my consent any confidential information\ndisclosed in writing to the Company pursuant to this Agreement relating to Inventions that qualify fully for protection under\nthe provisions of Section 2870. I will preserve the confidentiality of any Invention that does not fully qualify for protection\nunder Section 2870.\n2.6\nGovernment or Third Party. I also agree to assign all my right, title and interest in and to any particular\nCompany Group Invention to a third party, including without limitation the United States, as directed by the Company.\n2.7\nWorks for Hire. I acknowledge that all original works of authorship which are made by me (solely or\njointly with others) within the scope of my employment and which are protectable by copyright are “works made for hire,”\npursuant to United States Copyright Act (17 U.S.C., Section 101).\n2.8\nEnforcement of Proprietary Rights. I will assist the Company Group in every proper way to obtain,\nand from time to time enforce, United States and foreign Proprietary Rights relating to Company Group Inventions in any\nand all countries. To that end I will execute, verify and deliver such documents and perform such other acts (including\nappearances as a witness) as the Company may reasonably request for use in applying for, obtaining, perfecting,\nevidencing, sustaining and enforcing such Proprietary Rights and the assignment thereof. In addition, I will execute, verify\nand deliver assignments of such Proprietary Rights to the Company or its designee. My obligation to assist the Company\nwith respect to Proprietary Rights relating to such Company Group Inventions in any and all countries shall continue\nbeyond the termination of my employment, but the Company shall compensate me at a reasonable rate after my\ntermination for the time actually spent by me at the Company’s request on such assistance.\nIn the event the Company is unable for any reason, after reasonable effort, to secure my signature on any document\nneeded in connection with the actions specified in the preceding paragraph, I hereby irrevocably designate and appoint\nthe Company and its duly authorized officers and agents as my agent and attorney in fact, which appointment is coupled\nwith an interest, to act for and on my behalf to execute, verify and file any such documents and to do all other lawfully\npermitted acts to further the purposes of the preceding paragraph with the same legal force and effect as if executed by\nme. I hereby waive and quitclaim to the Company any and all claims, of any nature whatsoever, which I now or may\nhereafter have for infringement of any Proprietary Rights assigned hereunder to the Company.\n3.\nRecords. I agree to keep and maintain adequate and current records (in the form of notes, sketches, drawings\nand in any other form that may be required by the Company) of all Proprietary Information developed by me and all\nInventions made by me during the period of my employment at the Company Group, which records shall be available to\nand, to the extent related to Proprietary Information of the Company Group or Company Group Inventions, remain the\nsole property of the Company at all times.\n4.\nAdditional Activities. I agree that during the period of my employment by the Company Group I will not,\nwithout the Company’s express written consent, engage in any employment or business activity which is competitive\nwith, or would otherwise conflict with, my employment by the Company Group. I agree further that for the period of my\nemployment by the Company Group and for one (l) year after the date of termination of my employment, (a) I will not,\neither directly or through others, solicit or attempt to solicit any employee, independent contractor or consultant of the\nCompany Group to terminate his, her or its relationship with the Company Group in order to become an employee,\nconsultant or independent contractor to or for any other person or entity, or (b) directly or indirectly solicit or otherwise\ntake away customers or suppliers of the Company Group if, in so doing, I access, use or disclose any trade secrets or\nProprietary Information of the Company Group. I acknowledge and agree that the Company Group’s lists of customers\nand suppliers, including their buying and selling habits and special needs, whether created or obtained by, or disclosed to\nme during my employment, constitute Proprietary Information of the Company Group. I acknowledge that the restrictions\nunder this Section 4 are necessary for the Company Group to protect its Confidential Information. I acknowledge and\nagree that compliance with this Agreement will not unduly burden or interfere with my ability to earn a living following\ntermination of my relationship with the Company Group.\n3\n5.\nNo Conflicting Obligation. I represent that my performance of all the terms of this Agreement and as an\nemployee of the Company Group does not and will not breach any agreement to keep in confidence information acquired\nby me in confidence or in trust prior to my employment by the Company Group. I have not entered into, and I agree I will\nnot enter into, any agreement either written or oral in conflict herewith.\n6.\nReturn of Company Documents. When I leave the employ of the Company Group, I will deliver to the\nCompany any and all of the Company Group’s property, equipment, drawings, notes, memoranda, specifications,\ndevices, formulas, and documents, together with all copies thereof, and any other material containing or disclosing any\nCompany Group Inventions, Third Party Information or Proprietary Information of the Company Group and certify in\nwriting that I have fully complied with the foregoing obligation. I agree that I will not copy, delete or alter any information\ncontained upon my Company Group computer or other Company Group equipment before I return the computer or such\nother equipment to the Company. In addition, if I have used any personal computer, server or e-mail system to receive,\nstore, review, prepare or transmit any Company Group information, including but not limited to, Proprietary Information, I\nagree to provide the Company with a computer-useable copy of all such Proprietary Information and then permanently\ndelete and expunge such Proprietary Information from those systems; and I agree to provide the Company access to my\nsystem as reasonably requested to verify that the necessary copying and/or deletion is completed. I further agree that\nany property situated on the Company Group’s premises and owned by the Company Group, including disks and other\nstorage media, filing cabinets or other work areas, is subject to inspection by the Company Group’s personnel at any time\nwith or without notice. Prior to the termination of my employment or promptly after termination of my employment, I will\ncooperate with the Company in attending an exit interview and will certify in writing that I have complied with the\nrequirements of this section and in which I acknowledge my continuing obligations under this Agreement.\n7.\nLegal And Equitable Remedies. Because my services are personal and unique and because I may have\naccess to and become acquainted with the Proprietary Information of the Company Group, the Company shall have the\nright to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief,\nwithout bond and without prejudice to any other rights and remedies that the Company may have for a breach of this\nAgreement.\n8.\nNotices. Any notices required or permitted hereunder shall be given to the appropriate party at the address\nspecified below or at such other address as the party shall specify in writing. Such notice shall be deemed given upon\npersonal delivery to the appropriate address or if sent by certified or registered mail, three (3) days after the date of\nmailing.\n9.\nNotification Of New Employer or Firm. In the event that I leave the employ of the Company Group, I hereby\nconsent to the notification of each of my future employers (and any other organization to which I provide services) of my\nrights and obligations under this Agreement by the Company providing a copy of this Agreement or otherwise.\n10.\nGeneral Provisions.\n10.1\nGoverning Law; Consent to Personal Jurisdiction. This Agreement will be governed by and\nconstrued according to the laws of the State of Pennsylvania, as such laws are applied to agreements entered into and to\nbe performed entirely within Pennsylvania between Pennsylvania residents, without giving effect to any conflicts of laws\nprinciples that require the application of the law of a different state. I hereby expressly consent to the personal jurisdiction\nand venue of the state and federal courts located in Allegheny County, Pennsylvania for any lawsuit filed there against\nme by the Company arising from or related to this Agreement.\n10.2\nSeverability. In case any one or more of the provisions contained in this Agreement shall, for any\nreason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not\naffect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or\nunenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in\nthis Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or\nsubject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the\napplicable law as it shall then appear.\n10.3\nSuccessors and Assigns. This Agreement will be binding upon my heirs, executors, administrators\nand other legal representatives and will be for the benefit of the Company, its successors, and its assigns.\n10.4\nSurvival. The provisions of this Agreement shall survive the termination of my employment and the\nassignment of this Agreement by the Company to any successor in interest or other assignee.\n10.5\nEmployment. I understand that this Agreement does not constitute a contract of employment or\nobligate the Company Group to employ me for any stated period of time. I agree and understand that, unless otherwise\nprovided in a separate agreement between any member of the Company Group and me, I am an “at will” employee of the\nCompany Group and nothing in this Agreement shall interfere in any way with my right or the Company Group’s right to\nterminate my employment at any time, with or without cause and with or without advance notice.\n4\n10.6\nWaiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding\nor succeeding breach. No waiver by the Company of any right under this Agreement shall be construed as a waiver of\nany other right. The Company shall not be required to give notice to enforce strict adherence to all terms of this\nAgreement.\n10.7\nAdvice of Counsel. I acknowledge that, in executing this Agreement, I have had the opportunity to\nseek the advice of independent legal counsel, and I have read and understood all of the terms and provisions of this\nAgreement. This Agreement shall not be construed against any party by reason of the drafting or preparation hereof.\n10.8\nVoluntary Execution. I certify and acknowledge that I have carefully read all of the provisions of this\nAgreement, that I understand and have voluntarily accepted such provisions, and that I will fully and faithfully comply with\nsuch provisions.\n10.9\nEntire Agreement. The obligations pursuant to Sections 1, 2 and 3 of this Agreement shall apply to any\ntime during which I was previously employed, or am in the future employed, by the Company Group as a consultant if no\nother agreement governs nondisclosure and assignment of inventions during such period. This Agreement together with\nthat certain offer letter by and between the Company and me, dated as of May 18, 2019 (as may be amended or restated\nfrom time to time),] is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof\nand supersedes and merges all prior discussions between the parties with respect to the subject matter hereof. No\nmodification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective\nunless in writing and signed by the party to be charged. Any subsequent change or changes in my duties, salary or\ncompensation will not affect the validity or scope of this Agreement.\nThis Agreement shall be effective as of the first day of my employment with the Company Group, namely\nimmediately after the merger with Ohr Pharmaceutical is consumated.\nI have read this agreement carefully and understand its terms. I have completely filled out Exhibit B to\nthis agreement.\nDated: 5/18/2019\n/s/ Sam Backenroth\n(Signature)\nName: Sam Backenroth\nAccepted And Agreed To:\nNeuBase Therapeutics, Inc.\nBy:/s/ Dietrich Stephan\nName: Dietrich Stephan\nTitle: CEO\nAddress:\n213 Smithfield Street\nPittsburgh, PA 15222\nDated: 5/18/2019	Ohr P harmaceutical, Inc. S-4/A\nExhibit 10.26\nNeuBase Therapeutics, Inc.\nEMPLOYEE PROPRIETARY INFORMATION\nAND INVENTIONS ASSIGNMENT AGREEMENT\nIn consideration of my employment or continued employment by NeuBase Therapeutics, Inc. (the “Company”),\nand the compensation now and hereafter paid to me, I hereby agree as follows:\n1. Nondisclosure.\n1.1 Recognition of the Company's Rights; Nondisclosure. At all times during my employment with the\nCompany or one or more of its affiliates, including any parent or any subsidiary of the Company (collectively, the\n“Company Group”) and thereafter, I will hold in strictest confidence and will not disclose, use, copy, reverse-engineer,\ndistribute, misappropriate, lecture upon or publish any of the Company Group's Proprietary Information (defined below),\nexcept as such disclosure, use or publication may be required in connection with my work for the Company Group, or\nunless an executive officer of the Company expressly authorizes such in writing. I will obtain the Company's written\napproval before publishing or submitting for publication any material (written, verbal or otherwise) that relates to my work\nat the Company Group and/or incorporates any Proprietary Information. I hereby assign to the Company any rights I may\nhave or acquire in any and all such Proprietary Information and recognize that all Proprietary Information shall be the sole\nand exclusive property of the Company Group and its assigns.\n1.2 Proprietary Information. The term “Proprietary Information” shall mean any and all confidential\nand/or proprietary knowledge, data or information of the Company Group or related to the Company Group's business or\nits actual or demonstrably anticipated research or development. By way of illustration but not limitation, “Proprietary\nInformation” includes (a) trade secrets, technical data, research, products, services, ideas, inventions, mask works,\ncompositions of matter, ideas, plans, applications, concepts, improvements, works of art, manuals, laboratory notebooks,\npolicies, information, notes, analyses, compilations, drawings, materials, processes, studies, samples, processes,\nformulas, artwork, biological materials, compounds, compositions of matter, source and object codes, data and\ndatabases, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and\ntechniques, whether or not patentable, copyrightable or otherwise legally protectable (hereinafter collectively referred to\nas “Inventions”); and (b) information regarding plans for research, development, new products, services, marketing and\nselling, business plans, plans for research and development, budgets and unpublished financial statements, contracts,\nlicenses, prices and costs, suppliers and customers; (c) information regarding the skills and compensation of other\nemployees, contractors and any other service providers of the Company Group; and (d) the existence of any business\ndiscussions, negotiations or agreements between the Company Group and any third party.\n1.3 Third Party Information. I understand, in addition, that the Company Group has received and in the\nfuture will receive from third parties confidential or proprietary information (’Third Party Information”) subject to a duty\non the Company Group's part to maintain the confidentiality of such information and to use it only for certain limited\npurposes. During the term of my employment and thereafter, I will hold Third Party Information in the strictest confidence\nand will not disclose to anyone (other than the Company Group's personnel who need to know such information in\nconnection with their work for the Company Group) or use, except in connection with my work for the Company Group,\nThird Party Information unless expressly authorized by an executive officer of the Company in writing.\n1.4 No Improper Use of Information of Prior Employers and Others. I represent that my employment by\nthe Company Group does not and will not breach any agreement with any former employer, including any noncompete\nagreement or any agreement to keep in confidence or refrain from using information acquired by me prior to my\nemployment by the Company Group. I further represent that I have not entered into, and will not enter into, any\nagreement, either written or oral, in conflict with any of my obligations under this Employee Proprietary Information and\nInventions Assignment Agreement (this “Agreement”). During my employment by the Company Group, I will not\nimproperly make use of, or disclose, any confidential information or trade secrets, if any, of any former employer or any\nother person to whom I have an obligation of confidentiality, and I will not bring onto the premises of the Company Group\nor use any unpublished documents or any property belonging to any former employer or any other person to whom I\nhave an obligation of confidentiality unless consented to in writing by that former employer or person. I will use in the\nperformance of my duties only information which is generally known and used by persons with training and experience\ncomparable to my own, which is common knowledge in the industry or otherwise legally in the public domain, or which is\notherwise provided or developed by the Company Group.\n1.5 Defend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, I acknowledge that I will\nnot have criminal or civil liability to the Company under any Federal or State trade secret law for the disclosure of a trade\nsecret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to\nan attorney and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, ifl file a\nlawsuit for retaliation by the Company for reporting a suspected violation of law, I may disclose the trade secret to my\nattorney and may use the trade secret information in the court proceeding, ifl (X) file any document containing the trade\nsecret under seal and (Y) do not disclose the trade secret, except pursuant to court order.\n2. Assignment 0f Inventions.\n2.1 Proprietary Rights. The term “Proprietary Rights” shall mean all trade secrets, patents, paten‘\napplications, copyrights, mask works, trademarks and other intellectual property rights, along with any registrations of or\napplications to register such rights and Moral Rights recognized by the laws of anyjurisdiction or country. “Moral Rights”\nshall mean any rights to claim authorship of or credit on an Invention, to object to or prevent the modification or\ndestruction of any Invention or Prior Invention licensed to the Company under Section 2.2, orto withdraw from circulation\nor control the publication or distribution of any Inventions or Prior Inventions licensed to the Company under Section 2.2,\nand any similar right, existing under judicial or statutory law of any country or subdivision thereof in the world, or under\nany treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right.”\n2.2 Prior Inventions. Inventions, if any, patented or unpatented, which I made prior to the commencement\nof my employment with the Company Group are excluded from the scope of this Agreement. To preclude any possible\nuncertainty, l have set forth on Exhibit B (Prior Inventions) attached hereto a complete list of all Inventions thatl have,\nalone or jointly with others, conceived, developed or reduced to practice or caused to be conceived, developed or\nreduced to practice prior to the commencement of my employment with the Company Group orthatl have an ownership\ninterest in or which I have a license to use, thatl considerto be my property orthe property of third parties and thatl wish\nto have excluded from the scope of this Agreement (collectively referred to as “Prior Inventions”). If disclosure of any\nsuch Prior Invention would cause me to violate any prior confidentiality agreement, I understand thatl am not to list such\nPrior Inventions in Exhibit B but am only to disclose a cursory name for each such invention, a listing of the party(ies) to\nwhom it belongs and the fact that full disclosure as to such inventions has not been made for that reason. A space is\nprovided on Exhibit B for such purpose. If no such disclosure is attached, I represent that there are no Prior Inventions.\nIf, in the course of my employment with the Company Group, I incorporate a Prior Invention into a Company Group\nproduct, process, machine or other work, the Company is hereby granted and shall have a nonexclusive, royalty-free,\nfully paid-up, irrevocable, assumable, perpetual and worldwide license (with rights to sublicense through multiple tiers of\nsublicensees) to reproduce, make, have made, make derivative works of, copy, distribute, publicly perform, publicly\ndisplay in any form or medium, whether now known or later developed, modify, use, sell, import, offer for sale and\nexercise any and all present or future rights in, such Prior Invention. Notwithstanding the foregoing, I agree thatl will not\nincorporate, or permit to be incorporated, Prior Inventions in any Company Group Inventions withoutthe Company's prior\nwritten consent. Notwithstanding the foregoing, I acknowledge and agree that if I use any of my Prior Inventions in the\nscope of my employment, or include them in any product or service of the Company Group, I hereby grant to the\nCompany a perpetual, irrevocable, nonexclusive, world-wide, royalty-free license to use, disclose, make, sell, copy,\ndistribute, modify and create works based on, perform or display such Prior Inventions and to sublicense third parties with\nthe same rights.\n2.3 Assignment of Inventions. Subject to Sections 2.4, and 2.6, without further compensation, I hereby\nassign and agree to assign in the future (when any such Inventions or Proprietary Rights are first reduced to practice or\nfirst fixed in a tangible medium, as applicable) to the Company all my right, title and interest in and to any and all\nInventions (and all Proprietary Rights with respect thereto) whether or not patentable, copyrightable or otherwise legally\nprotectable, made or conceived or reduced to practice or learned by me, either alone or jointly with others, during the\nperiod of my employmentwith the Company Group. I understand thatthis assignment is intended to, and does, extend to\nsubject matters currently in existence, those in development, as well as those which have not yet been created.\nInventions assigned to the Company, or to a third party as directed by the Company pursuant to this Section 2, are\nhereinafter referred to as “Company Group Inventions.”\n2.4 Nonassignable Inventions. This Agreement does not apply to an lnvention which qualifies fully as a\nnonassignable lnvention under Section 2870 of the California Labor Code (hereinafter “Section 2870”). l have reviewed\nthe notification on ExhibitA (Limited Exclusion Notification) and agree that my signature acknowledges receipt of the\nnotification.\n2.5 Obligation to Keep the Company Informed. During the period of my employment and for six (6)\nmonths after termination of my employment with the Company Group, I will promptly disclose to the Company fully and in\nwriting all Inventions authored, conceived or reduced to practice by me, either alone orjointly with others. In addition, I\nwill promptly disclose to the Company all patent applications filed by me or on my behalf or in which I am named as an\ninventor or co-inventor within a year aftertermination of employment. At the time of each such disclosure, I will advise the\nCompany in writing of any Inventions thatl believe fully qualify for protection under Section 2870; and I will at that time\nprovide to the Company in writing all evidence necessary to substantiate that belief. The Company will keep in\nconfidence and will not use for any purpose or disclose to third parties without my consent any confidential information\ndisclosed in writing to the Company pursuant to this Agreement relating to Inventions that qualify fully for protection under\nthe provisions of Section 2870. I will preserve the confidentiality of any Invention that does not fully qualify for protection\nunder Section 2870.\n2.6 Government or Third Party. I also agree to assign all my right, title and interest in and to any particular\nCompany Group Invention to a third party, including without limitation the United States, as directed by the Company.\n2.7 Works for Hire. I acknowledge that all original works of authorship which are made by me (solely or\njointly with others) within the scope of my employment and which are protectable by copyright are “works made for hire,”\npursuant to United States CopyrightAct (17 U.S.C., Section 101).\n2.8 Enforcement of Proprietary Rights. I will assist the Company Group in every proper way to obtain,\nand from time to time enforce, United States and foreign Proprietary Rights relating to Company Group Inventions in any\nand all countries. To that end I will execute, verify and deliver such documents and perform such other acts (including\nappearances as a witness) as the Company may reasonably request for use in applying for, obtaining, perfecting,\nevidencing, sustaining and enforcing such Proprietary Rights and the assignment thereof. In addition, I will execute, verify\nand deliver assignments of such Proprietary Rights to the Company or its designee. My obligation to assist the Company\nwith respect to Proprietary Rights relating to such Company Group Inventions in any and all countries shall continue\nbeyond the termination of my employment, but the Company shall compensate me at a reasonable rate after my\ntermination for the time actually spent by me atthe Company's request on such assistance.\nIn the event the Company is unable for any reason, after reasonable effort, to secure my signature on any document\nneeded in connection with the actions specified in the preceding paragraph, I hereby irrevocably designate and appoint\nthe Company and its duly authorized officers and agents as my agent and attorney in fact, which appointment is coupled\nwith an interest, to act for and on my behalf to execute, verify and file any such documents and to do all other lawfully\npermitted acts to further the purposes of the preceding paragraph with the same legal force and effect as if executed by\nme. I hereby waive and quitclaim to the Company any and all claims, of any nature whatsoever, which I now or may\nhereafter have for infringement of any P roprietary Rights assigned hereunder to the Company.\n3. Records. I agree to keep and maintain adequate and current records (in the form of notes, sketches, drawings\nand in any other form that may be required by the Company) of all Proprietary Information developed by me and all\nInventions made by me during the period of my employment at the Company Group, which records shall be available to\nand, to the extent related to Proprietary Information of the Company Group or Company Group Inventions, remain the\nsole property of the Company at all times.\n4. Additional Activities. I agree that during the period of my employment by the Company Group I will not,\nwithout the Company's express written consent, engage in any employment or business activity which is competitive\nwith, or would otherwise conflict with, my employment by the Company Group. I agree further that for the period of my\nemployment by the Company Group and for one (I) year after the date of termination of my employment, (a) I will not,\neither directly or through others, solicit or attempt to solicit any employee, independent contractor or consultant of the\nCompany Group to terminate his, her or its relationship with the Company Group in order to become an employee,\nconsultant or independent contractor to or for any other person or entity, or (b) directly or indirectly solicit or otherwise\ntake away customers or suppliers of the Company Group if, in so doing, I access, use or disclose any trade secrets or\nProprietary Information of the Company Group. I acknowledge and agree that the Company Group's lists of customers\nand suppliers, including their buying and selling habits and special needs, whether created or obtained by, or disclosed to\nme during my employment, constitute Proprietary Information of the Company Group. I acknowledge that the restrictions\nunder this Section 4 are necessary for the Company Group to protect its Confidential Information. I acknowledge and\nagree that compliance with this Agreement will not unduly burden or interfere with my ability to earn a living following\ntermination of my relationship with the Company Group.\n5. No Conflicting Obligation. I represent that my performance of all the terms of this Agreement and as an\nemployee ofthe Company Group does not and will not breach any agreement to keep in confidence information acquired\nby me in confidence or in trust prior to my employment by the Company Group. I have not entered into, and I agree I will\nnot enter into, any agreement either written or oral in conflict herewith.\n6. Return of Company Documents. When I leave the employ of the Company Group, I will deliver to the\nCompany any and all of the Company Group's property, equipment, drawings, notes, memoranda, specifications,\ndevices, formulas, and documents, together with all copies thereof, and any other material containing or disclosing any\nCompany Group Inventions, Third Party Information or Proprietary Information of the Company Group and certify in\nwriting thatl have fully complied with the foregoing obligation. I agree thatl will not copy, delete or alter any information\ncontained upon my Company Group computer or other Company Group equipment before I return the computer or such\nother equipment to the Company. In addition, ifI have used any personal computer, server or e-mail system to receive,\nstore, review, prepare or transmit any Company Group information, including but not limited to, Proprietary Information, I\nagree to provide the Company with a computer-useable copy of all such Proprietary Information and then permanently\ndelete and expunge such Proprietary Information from those systems; and I agree to provide the Company access to my\nsystem as reasonably requested to verify that the necessary copying and/or deletion is completed. I further agree that\nany property situated on the Company Group's premises and owned by the Company Group, including disks and other\nstorage media, filing cabinets or other work areas, is subjectto inspection by the Company Group's personnel at any time\nwith or without notice. Prior to the termination of my employment or promptly after termination of my employment, I will\ncooperate with the Company in attending an exit interview and will certify in writing that I have complied with the\nrequirements of this section and in which I acknowledge my continuing obligations underthis Agreement.\n7. Legal And Equiiable Remedies. Because my services are personal and unique and because I may have\naccess to and become acquainted with the Proprietary Information of the Company Group, the Company shall have the\nright to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief,\nwithout bond and without prejudice to any other rights and remedies that the Company may have for a breach of this\nAgreement.\n8. Notices. Any notices required or permitted hereunder shall be given to the appropriate party at the address\nspecified below or at such other address as the party shall specify in writing. Such notice shall be deemed given upon\npersonal delivery to the appropriate address or if sent by certified or registered mail, three (3) days after the date of\nmailing.\n9. Notification Of New Employer or Firm. In the event that I leave the employ of the Company Group, I hereby\nconsent to the notification of each of my future employers (and any other organization to which I provide services) of my\nrights and obligations underthis Agreement by the Company providing a copy of this Agreement or otherwise.\n10. General Provisions.\n10.1 Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by and\nconstrued according to the laws of the State of Pennsylvania, as such laws are applied to agreements entered into and to\nbe performed entirely within Pennsylvania between Pennsylvania residents, without giving effect to any conflicts of laws\nprinciples that require the application of the law of a different state. I hereby expressly consent to the personal jurisdiction\nand venue of the state and federal courts located in Allegheny County, Pennsylvania for any lawsuit filed there against\nme by the Company arising from or related to this Agreement.\n10.2 Severability. In case any one or more of the provisions contained in this Agreement shall, for any\nreason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not\naffect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or\nunenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in\nthis Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or\nsubject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the\napplicable law as itshall then appear.\n10.3 Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators\nand other legal representatives and will be forthe benefit of the Company, its successors, and its assigns.\n10.4 Survival. The provisions of this Agreement shall survive the termination of my employment and the\nassignment ofthis Agreement by the Company to any successor in interest or other assignee.\n10.5 Employment. I understand that this Agreement does not constitute a contract of employment or\nobligate the Company Group to employ me for any stated period of time. I agree and understand that, unless otherwise\nprovided in a separate agreement between any member of the Company Group and me, I am an “at will” employee of the\nCompany Group and nothing in this Agreement shall interfere in any way with my right or the Company Group's right to\nterminate my employment at any time, with or without cause and with or without advance notice.\n10.6 Waiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding\nor succeeding breach. No waiver by the Company of any right under this Agreement shall be construed as a waiver of\nany other right. The Company shall not be required to give notice to enforce strict adherence to all terms of this\nAgreement.\n10.7 Advice of Counsel. I acknowledge that, in executing this Agreement, l have had the opportunity to\nseek the advice of independent legal counsel, and l have read and understood all of the terms and provisions of this\nAgreement. This Agreement shall not be construed against any party by reason of the drafting or preparation hereof.\n10.8 Voluntary Execution. I certify and acknowledge thatl have carefully read all of the provisions of this\nAgreement, thatl understand and have voluntarily accepted such provisions, and thatl will fully and faithfully comply with\nsuch provisions.\n10.9 Entire Agreement. The obligations pursuant to Sections 1, 2 and 3 of this Agreement shall apply to any\ntime during which I was previously employed, or am in the future employed, by the Company Group as a consultant if no\nother agreement governs nondisclosure and assignment of inventions during such period. This Agreement together with\nthatcertain offer letter by and between the Company and me, dated as of May 18, 2019 (as may be amended or restated\nfrom time to time),] is the final, complete and exclusive agreement of the parties with respectto the subject matter hereof\nand supersedes and merges all prior discussions between the parties with respect to the subject matter hereof. No\nmodification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective\nunless in writing and signed by the party to be charged. Any subsequent change or changes in my duties, salary or\ncompensation will not affect the validity or scope of this Agreement.\nThis Agreement shall be effective as of the first day of my employment with the Company Group, namely\nimmediately after the merger with Ohr Pharmaceutical is consumated.\nI have read this agreement carefully and understand its terms. I have completely filled out Exhibit B to\nthis agreement.\nDated: 5/18/2019\n/s/ Sam B ackenroth\n"(Sim—\nName: Sam Backenroth\nAccepted And Agreed To:\nNeuBase Therapeutics, Inc.\nBy/s/ Dietrich Stephan\nName: Dietrich Stephan\nTitle: CEO\nA ddress: 213 Smithfield Street\nPittsburgh, PA 15222\nDated: 5/18/2019	Ohr Pharmaceutical, Inc. S-4/A\nExhibit 10.26\nNeuBase Therapeutics, Inc.\nEMPLOYEE PROPRIETARY INFORMATION\nAND INVENTIONS ASSIGNMENT AGREEMENT\nIn consideration of my employment or continued employment by NeuBase Therapeutics, Inc. (the "Company"),\nand the compensation now and hereafter paid to me, I hereby agree as follows:\n1.\nNondisclosure.\n1.1\nRecognition of the Company's Rights; Nondisclosure. At all times during my employment with the\nCompany or one or more of its affiliates, including any parent or any subsidiary of the Company (collectively, the\n"Company Group") and thereafter, I wil hold in strictest confidence and will not disclose, use, copy, reverse-engineer,\ndistribute, misappropriate, lecture upon or publish any of the Company Group's Proprietary Information (defined below),\nexcept as such disclosure, use or publication may be required in connection with my work for the Company Group, or\nunless an executive officer of the Company expressly authorizes such in writing. I will obtain the Company's written\napproval before publishing or submitting for publication any material (written, verbal or otherwise) that relates to my work\nat the Company Group and/or incorporates any Proprietary Information I hereby assign to the Company any rights I may\nhave or acquire in any and all such Proprietary Information and recognize that all roprietary Information shall be the sole\nand exclusive property of the Company Group and its assigns.\n1.2\nProprietary Information. The term "Proprietary Information" shall mean any and all confidential\nand/or proprietary knowledge, data or information of the Company Group or related to the Company Group's business or\nits actual or demonstrably anticipated research or development. By way of illustration but not limitation, "Proprietary\nInformation" includes (a) trade secrets, technical data, research, products, services, ideas, inventions, mask works,\ncompositions of matter, ideas, plans, applications, concepts, improvements, works of art, manuals, laboratory notebooks,\npolicies, information, notes, analyses, compilations, drawings, materials, processes, studies, samples, processes,\nformulas, artwork, biological materials, compounds, compositions of matter, source and object codes, data and\ndatabases, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and\ntechniques, whether or not patentable, copyrightable or otherwise legally protectable (hereinafter collectively referred to\nas "Inventions"); and (b) information regarding plans for research, development, new products, services, marketing and\nselling, business plans, plans for research and development, budgets and unpublished financial statements, contracts,\nlicenses, prices and costs, suppliers and customers; (c) information regarding the skills and compensation of other\nemployees, contractors and any other service providers of the Company Group; and (d) the existence of any business\ndiscussions, negotiations or agreements between the Company Group and any third party.\n1.3\nThird Party Information. I understand, in addition, that the Company Group has received and in the\nfuture will receive from third parties confidential or proprietary information ('Third Party Information") subject to a duty\non the Company Group's part to maintain the confidentiality of such information and to use it only for certain limited\npurposes. During the term of my employment and thereafter, I will hold Third Party Information in the strictest confidence\nand wil not disclose to anyone (other than the Company Group's personnel who need to know such information in\nconnection with their work for the Company Group) or use, except in connection with my work for the Company Group,\nThird arty Information unless expressly authorized by an executive officer of the Company in writing.\n1.4\nNo Improper Use of Information of Prior Employers and Others. I represent that my employment by\nthe Company Group does not and will not breach any agreement with any former employer, including any noncompete\nagreement or any agreement to keep in confidence or refrain from using information acquired by me prior to my\nemployment by the Company Group. I further represent that I have not entered into, and will not enter into, any\nagreement, either written or oral, in conflict with any of my obligations under this Employee Proprietary Information and\nInventions Assignment Agreement (this "Agreement"). During my employment by the Company Group, I will not\nimproperly make use of, or disclose, any confidential information or trade secrets, if any, of any former employer or any\nother person to whom I have an obligation of confidentiality, and I will not bring onto the premises of the Company Group\nor use any unpublished documents or any property belonging to any former employer or any other person to whom\nI\nhave an obligation of confidentiality unless consented to in writing by that former employer or person I will use in the\nperformance of my duties only information which is generally known and used by persons with training and experience\ncomparable to my own, which is common knowledge in the industry or otherwise legally in the public domain, or which\nis\notherwise provided or developed by the Company Group.\n1\n1.5\nDefend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, I acknowledge that I will\nnot have criminal or civil liability to the Company under any Federal or State trade secret law for the disclosure of a trade\nsecret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to\nan attorney and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, if I file a\nlawsuit for retaliation by the Company for reporting a suspected violation of law, I may disclose the trade secret to my\nattorney and may use the trade secret information in the court proceeding, if I (X) file any document containing the trade\nsecret under seal and (Y) do not disclose the trade secret, except pursuant to court order.\n2.\nAssignment Of Inventions.\n2.1\nProprietary Rights. The term "Proprietary Rights" shall mean all trade secrets, patents, paten\napplications, copyrights, mask works, trademarks and other intellectual property rights, along with any registrations of or\napplications to register such rights and Moral Rights recognized by the laws of any jurisdiction or country. "Moral Rights"\nshall mean any rights to claim authorship of or credit on an Invention, to object to or prevent the modification or\ndestruction of any Invention or rior Invention licensed to the Company under Section 2.2, or to withdraw from circulation\nor control the publication or distribution of any Inventions or Prior Inventions licensed to the Company under Section 2.2,\nand any similar right, existing under judicial or statutory law of any country or subdivision thereof in the world, or under\nany treaty, regardless of whether or not such right is denominated or generally referred to as a "moral right."\n2.2\nPrior Inventions. Inventions, if any, patented or unpatented, which I made prior to the commencement\nof my employment with the Company Group are excluded from the scope of this Agreement. To preclude any possible\nuncertainty, I have set forth on Exhibit B Prior Inventions) attached hereto a complete list of all Inventions that I have,\nalone or jointly with others, conceived, developed or reduced to practice or caused to be conceived, developed or\nreduced to practice prior to the commencement of my employment with the Company Group or that I have an ownership\ninterest in or which I have a license to use, that I consider to be my property or the property of third parties and that I wish\nto have excluded from the scope of this Agreement (collectively referred to as "Prior Inventions"). If disclosure of any\nsuch rior Invention would cause me to violate any prior confidentiality agreement, I understand that I am not to list such\nPrior Inventions in Exhibit B but am only to disclose a cursory name for each such invention, a listing of the party(ies) to\nwhom it belongs and the fact that full disclosure as to such inventions has not been made for that reason. A space is\nprovided on Exhibit B for such purpose. If no such disclosure is attached, I represent that there are no Prior Inventions.\nIf, in the course of my employment with the Company Group, I incorporate a Prior Invention into a Company Group\nproduct, process, machine or other work, the Company is hereby granted and shall have a nonexclusive, royalty-free,\nfully paid-up, irrevocable, assumable, perpetual and worldwide license (with rights to sublicense through multiple tiers of\nsublicensees) to reproduce, make, have made, make derivative works of, copy, distribute, publicly perform, publicly\ndisplay in any form or medium, whether now known or later developed, modify, use, sell, import, offer for sale and\nexercise any and all present or future rights in, such Prior Invention. Notwithstanding the foregoing, I agree that I will not\nincorporate, or permit to be incorporated, rior Inventions in any Company Group Inventions without the Company's prior\nwritten consent. Notwithstanding the foregoing, I acknowledge and agree that if I use any of my rior Inventions in the\nscope of my employment, or include them in any product or service of the Company Group, I hereby grant to the\nCompany a perpetual, irrevocable, nonexclusive, world-wide, royalty-free license to use, disclose, make, sell, copy,\ndistribute, modify and create works based on, perform or display such rior Inventions and to sublicense third parties with\nthe same rights.\n2.3\nAssignment of Inventions. Subject to Sections 2.4, and 2.6, without further compensation, I hereby\nassign and agree to assign in the future (when any such Inventions or Proprietary Rights are first reduced to practice or\nfirst fixed in a tangible medium, as applicable) to the Company all my right, title and interest in and to any and all\nInventions (and all Proprietary Rights with respect thereto) whether or not patentable, copyrightable or otherwise legally\nprotectable, made or conceived or reduced to practice or learned by me, either alone or jointly with others, during the\nperiod of my employment with the Company Group. I understand that this assignment is intended to, and does, extend to\nsubject matters currently in existence, those in development, as well as those which have not yet been created.\nInventions assigned to the Company, or to a third party as directed by the Company pursuant to this Section 2, are\nhereinafter referred to as "Company Group Inventions."\n2.4\nNonassignable Inventions. This Agreement does not apply to an Invention which qualifies fully as a\nnonassignable Invention under Section 2870 of the California Labor Code (hereinafter "Section 2870"). I have reviewed\nthe notification on Exhibit A (Limited Exclusion Notification) and agree that my signature acknowledges receipt of the\nnotification.\n2\n2.5\nObligation to Keep the Company Informed. During the period of my employment and for six (6)\nmonths after termination of my employment with the Company Group, I will promptly disclose to the Company fully and in\nwriting all Inventions authored, conceived or reduced to practice by me, either alone or jointly with others. In addition, I\nwill promptly disclose to the Company all patent applications filed by me or on my behalf or in which I am named as an\ninventor or co-inventor within a year after termination of employment. At the time of each such disclosure, I wil advise the\nCompany in writing of any Inventions that I believe fully qualify for protection under Section 2870; and I will at that time\nprovide to the Company in writing all evidence necessary to substantiate that belief. The Company wil keep in\nconfidence and wil not use for any purpose or disclose to third parties without my consent any confidential information\ndisclosed in writing to the Company pursuant to this Agreement relating to Inventions that qualify fully for protection under\nthe provisions of Section 2870. I will preserve the confidentiality of any Invention that does not fully qualify for protection\nunder Section 2870.\n2.6\nGovernment or Third Party. I also agree to assign all my right, title and interest in and to any particular\nCompany Group Invention to a third party, including without limitation the United States, as directed by the Company.\n2.7\nWorks for Hire. acknowledge that all original works of authorship which are made by me (solely or\njointly\nwith others) within the scope of my employment and which are protectable by copyright are "works made for hire,"\npursuant to United States Copyright Act (17 U.S.C., ection 101).\n2.8\nEnforcement of Proprietary Rights. I wil assist the Company Group in every proper way to obtain,\nand from time to time enforce, United States and foreign Proprietary Rights relating to Company Group Inventions in any\nand all countries. To that end I will execute, verify and deliver such documents and perform such other acts (including\nappearances as a witness) as the Company may reasonably request for use in applying for, obtaining, perfecting,\nevidencing, sustaining and enforcing such Proprietary Rights and the assignment thereof. In addition, I wil execute, verify\nand deliver assignments of such Proprietary Rights to the Company or its designee. My obligation to assist the Company\nwith respect to Proprietary Rights relating to such Company Group Inventions in any and all countries shall continue\nbeyond the termination of my employment, but the Company shall compensate me at a reasonable rate after\nmy\ntermination for the time actually spent by me at the Company's request on such assistance.\nIn the event the Company is unable for any reason, after reasonable effort, to secure my signature on any document\nneeded in connection with the actions specified in the preceding paragraph, I hereby irrevocably designate and appoint\nthe Company and its duly authorized officers and agents as my agent and attorney in fact, which appointment is coupled\nwith an interest, to act for and on my behalf to execute, verify and file any such documents and to do all other lawfully\npermitted acts to further the purposes of the preceding paragraph with the same lega force and effect as if executed by\nme. I hereby waive and quitclaim to the Company any and all claims, of any nature whatsoever, which now or may\nhereafter have for infringement of any roprietary Rights assigned hereunder to the Company.\n3.\nRecords. I agree to keep and maintain adequate and current records (in the form of notes, sketches, drawings\nand in any other form that may be required by the Company) of all roprietary Information developed by me and all\nInventions made by me during the period of my employment at the Company Group, which records shall be available to\nand, to the extent related to roprietary Information of the Company Group or Company Group Inventions, remain the\nsole property of the Company at all times.\n4.\nAdditional Activities. I agree that during the period of my employment by the Company Group I will not,\nwithout the Company's express written consent, engage in any employment or business activity which is competitive\nwith, or would otherwise conflict with, my employment by the Company Group. I agree further that for the period of my\nemployment by the Company Group and for one (I) year after the date of termination of my employment, (a) I will not,\neither directly or through others, solicit or attempt to solicit any employee, independent contractor or consultant of the\nCompany Group to terminate his, her or its relationship with the Company Group in order to become an employee,\nconsultant or independent contractor to or for any other person or entity, or (b) directly or indirectly solicit or otherwise\ntake away customers or suppliers of the Company Group if, in SO doing, I access, use or disclose any trade secrets or\nProprietary Information of the Company Group. I acknowledge and agree that the Company Group's lists of customers\nand suppliers, including their buying and selling habits and special needs, whether created or obtained by, or disclosed to\nme during my employment constitute Proprietary Information of the Company Group. I acknowledge that the restrictions\nunder this Section 4 are necessary for the Company Group to protect its Confidential Information. I acknowledge and\nagree that compliance with this Agreement will not unduly burden or interfere with my ability to earn a living following\ntermination of my relationship with the Company Group.\n3\n5.\nNo Conflicting Obligation. I represent that my performance of all the terms of this Agreement and as an\nemployee of the Company Group does not and will not breach any agreement to keep in confidence information acquired\nby me in confidence or in trust prior to my employment by the Company Group I have not entered into, and I agree I will\nnot enter into, any agreement either written or oral in conflict herewith.\n6.\nReturn of Company Documents. When I leave the employ of the Company Group, I will deliver\nto\nthe\nCompany any and all of the Company Group's property, equipment, drawings, notes, memoranda, specifications,\ndevices, formulas, and documents, together with all copies thereof, and any other material containing or disclosing any\nCompany Group Inventions, Third arty Information or Proprietary Information of the Company Group and certify in\nwriting that I have fully complied with the foregoing obligation I agree that I will not copy, delete or alter any information\ncontained upon my Company Group computer or other Company Group equipment before return the computer or such\nother equipment to the Company. In addition, if I have used any personal computer, server or e-mail system to receive,\nstore, review, prepare or transmit any Company Group information, including but not limited to, roprietary Information, I\nagree to provide the Company with a computer-useable copy of all such Proprietary Information and then permanently\ndelete and expunge such Proprietary Information from those systems; and I agree to provide the Company access to my\nsystem as reasonably requested to verify that the necessary copying and/or deletion is completed. I further agree that\nany property situated on the Company Group's premises and owned by the Company Group, including disks and other\nstorage media, filing cabinets or other work areas, is subject to inspection by the Company Group's personnel at any time\nwith or without notice. rior to the termination of my employment or promptly after termination of my employment, I will\ncooperate with the Company in attending an exit interview and will certify in writing that I have complied with the\nrequirements of this section and in which I acknowledge my continuing obligations under this Agreement\n7.\nLegal And Equitable Remedies. Because my services are personal and unique and because I may have\naccess to and become acquainted with the Proprietary Information of the Company Group, the Company shall have the\nright to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief,\nwithout bond and without prejudice to any other rights and remedies that the Company may have for a breach of this\nAgreement.\n8.\nNotices. Any notices required or permitted hereunder shall be given to the appropriate party at the address\nspecified below or at such other address as the party shall specify in writing. Such notice shall be deemed given upon\npersonal delivery to the appropriate address or if sent by certified or registered mail, three (3) days after the date of\nmailing.\n9.\nNotification Of New Employer or Firm. In the event that I leave the employ of the Company Group, I hereby\nconsent to the notification of each of my future employers (and any other organization to which provide services) of my\nrights and obligations under this Agreement by the Company providing a copy of this Agreement or otherwise.\n10.\nGeneral Provisions.\n10.1\nGoverning Law; Consent to Personal J urisdiction. This Agreement will be governed by anc\nconstrued according to the laws of the State of ennsylvania, as such laws are applied to agreements entered into and to\nbe performed entirely within Pennsylvania between Pennsylvania residents, without giving effect to any conflicts of laws\nprinciples that require the application of the law of a different state. I hereby expressly consent to the persona jurisdiction\nand venue of the state and federal courts located in Allegheny County, Pennsylvania for any lawsuit filed there against\nme by the Company arising from or related to this Agreement.\n10.2\nSeverability. In case any one or more of the provisions contained in this Agreement shall, for any\nreason, be held to be invalid, illega or unenforceable in any respect, such invalidity, illegality or unenforceability shall\nnot\naffect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or\nunenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in\nthis Agreement shal for any reason be held to be excessively broad as to duration, geographical scope, activity or\nsubject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the\napplicable law as it shall then appear.\n10.3\nSuccessors and Assigns. This Agreement will be binding upon my heirs, executors, administrators\nand other legal representatives and wil be for the benefit of the Company, its successors, and its assigns.\n10.4\nSurvival. The provisions of this Agreement shall survive the termination of my employment and the\nassignment of this Agreement by the Company to any successor in interest or other assignee\n10.5\nEmployment. I understand that this Agreement does not constitute a contract of employment or\nobligate the Company Group to employ me for any stated period of time. I agree and understand that, unless otherwise\nprovided in a separate agreement between any member of the Company Group and me, I am an "at will" employee of the\nCompany Group and nothing in this Agreement shall interfere in any way with my right or the Company Group's right to\nterminate my employment at any time, with or without cause and with or without advance notice.\n4\n10.6\nWaiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding\nor succeeding breach. No waiver by the Company of any right under this Agreement shall be construed as a waiver of\nany other right. The Company shall not be required to give notice to enforce strict adherence to all terms of this\nAgreement.\n10.7\nAdvice of Counsel. I acknowledge that, in executing this Agreement I have had the opportunity to\nseek the advice of independent legal counsel, and I have read and understood all of the terms and provisions of this\nAgreement This Agreement shall not be construed against any party by reason of the drafting or preparation hereof.\n10.8\nVoluntary Execution. I certify and acknowledge that I have carefully read all of the provisions of this\nAgreement, that I understand and have voluntarily accepted such provisions, and that I wil fully and faithfully comply with\nsuch provisions.\n10.9\nEntire Agreement. The obligations pursuant to Sections 1, 2 and 3 of this Agreement shall apply to any\ntime during which I was previously employed, or am in the future employed, by the Company Group as a consultant if no\nother agreement governs nondisclosure and assignment of inventions during such period This Agreement together with\nthat certain offer letter by and between the Company and me, dated as of May 18, 2019 (as may be amended or restated\nfrom time to time), is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof\nand supersedes and merges all prior discussions between the parties with respect to the subject matter hereof. No\nmodification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective\nunless in writing and signed by the party to be charged. Any subsequent change or changes in my duties, salary or\ncompensation will not affect the validity or scope of this Agreement\nThis Agreement shall be effective as of the first day of my employment with the Company Group, namely\nimmediately after the merger with Ohr P harmaceutical is consumated.\nI have read this agreement carefully and understand its terms. I have completely filled out Exhibit B to\nthis agreement.\nDated: 5/18/2019\n/s/ Sam Backenroth\nSignature)\nName: Sam Backenroth\nAccepted And Agreed To:\nNeuBase Therapeutics, Inc.\nBy/s/ Dietrich Stephan\nName: Dietrich Stephan\nTitle: CEO\nAddress:\n213 Smithfield Street\nPittsburgh, PA 15222\nDated: 5/18/2019	Ohr Pharmaceutical, Inc. S -4/A\nExhibit 10.26\nNeuBase Therapeutics, Inc.\nEMPLOYEE PROPRIETARY INFORMATION\nAND INVENTIONS ASSIGNMENT AGREEMENT\nIn consideration of my employment or continued employment by NeuBase Therapeutics, Inc. (the “Company”),\nand the compensation now and hereafter paid to me, I hereby agree as follows:\n1.\nNondisclosure.\n1.1\nRecognition of the Company’s Rights; Nondisclosure. At all times during my employment with the\nCompany or one or more of its affiliates, including any parent or any subsidiary of the Company (collectively, the\n“Company Group”) and thereafter, I will hold in strictest confidence and will not disclose, use, copy, reverse-engineer,\ndistribute, misappropriate, lecture upon or publish any of the Company Group’s Proprietary Information (defined below),\nexcept as such disclosure, use or publication may be required in connection with my work for the Company Group, or\nunless an executive officer of the Company expressly authorizes such in writing. I will obtain the Company’s written\napproval before publishing or submitting for publication any material (written, verbal or otherwise) that relates to my work\nat the Company Group and/or incorporates any Proprietary Information. I hereby assign to the Company any rights I may\nhave or acquire in any and all such Proprietary Information and recognize that all Proprietary Information shall be the sole\nand exclusive property of the Company Group and its assigns.\n1.2\nProprietary Information. The term “Proprietary Information” shall mean any and all confidential\nand/or proprietary knowledge, data or information of the Company Group or related to the Company Group’s business or\nits actual or demonstrably anticipated research or development. By way of illustration but not limitation, “Proprietary\nInformation” includes (a) trade secrets, technical data, research, products, services, ideas, inventions, mask works,\ncompositions of matter, ideas, plans, applications, concepts, improvements, works of art, manuals, laboratory notebooks,\npolicies, information, notes, analyses, compilations, drawings, materials, processes, studies, samples, processes,\nformulas, artwork, biological materials, compounds, compositions of matter, source and object codes, data and\ndatabases, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and\ntechniques, whether or not patentable, copyrightable or otherwise legally protectable (hereinafter collectively referred to\nas “Inventions”); and (b) information regarding plans for research, development, new products, services, marketing and\nselling, business plans, plans for research and development, budgets and unpublished financial statements, contracts,\nlicenses, prices and costs, suppliers and customers; (c) information regarding the skills and compensation of other\nemployees, contractors and any other service providers of the Company Group; and (d) the existence of any business\ndiscussions, negotiations or agreements between the Company Group and any third party.\n1.3\nThird Party Information. I understand, in addition, that the Company Group has received and in the\nfuture will receive from third parties confidential or proprietary information (“Third Party Information”) subject to a duty\non the Company Group’s part to maintain the confidentiality of such information and to use it only for certain limited\npurposes. During the term of my employment and thereafter, I will hold Third Party Information in the strictest confidence\nand will not disclose to anyone (other than the Company Group’s personnel who need to know such information in\nconnection with their work for the Company Group) or use, except in connection with my work for the Company Group,\nThird Party Information unless expressly authorized by an executive officer of the Company in writing.\n1.4\nNo Improper Use of Information of Prior Employers and Others. I represent that my employment by\nthe Company Group does not and will not breach any agreement with any former employer, including any noncompete\nagreement or any agreement to keep in confidence or refrain from using information acquired by me prior to my\nemployment by the Company Group. I further represent that I have not entered into, and will not enter into, any\nagreement, either written or oral, in conflict with any of my obligations under this Employee Proprietary Information and\nInventions Assignment Agreement (this “Agreement”). During my employment by the Company Group, I will not\nimproperly make use of, or disclose, any confidential information or trade secrets, if any, of any former employer or any\nother person to whom I have an obligation of confidentiality, and I will not bring onto the premises of the Company Group\nor use any unpublished documents or any property belonging to any former employer or any other person to whom I\nhave an obligation of confidentiality unless consented to in writing by that former employer or person. I will use in the\nperformance of my duties only information which is generally known and used by persons with training and experience\ncomparable to my own, which is common knowledge in the industry or otherwise legally in the public domain, or which is\notherwise provided or developed by the Company Group.\n1\n1.5\nDefend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, I acknowledge that I will\nnot have criminal or civil liability to the Company under any Federal or State trade secret law for the disclosure of a trade\nsecret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to\nan attorney and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, if I file a\nlawsuit for retaliation by the Company for reporting a suspected violation of law, I may disclose the trade secret to my\nattorney and may use the trade secret information in the court proceeding, if I (X) file any document containing the trade\nsecret under seal and (Y) do not disclose the trade secret, except pursuant to court order.\n2.\nAssignment Of Inventions.\n2.1\nProprietary Rights. The term “Proprietary Rights” shall mean all trade secrets, patents, patent\napplications, copyrights, mask works, trademarks and other intellectual property rights, along with any registrations of or\napplications to register such rights and Moral Rights recognized by the laws of any jurisdiction or country. “Moral Rights”\nshall mean any rights to claim authorship of or credit on an Invention, to object to or prevent the modification or\ndestruction of any Invention or Prior Invention licensed to the Company under Section 2.2, or to withdraw from circulation\nor control the publication or distribution of any Inventions or Prior Inventions licensed to the Company under Section 2.2,\nand any similar right, existing under judicial or statutory law of any country or subdivision thereof in the world, or under\nany treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right.”\n2.2\nPrior Inventions. Inventions, if any, patented or unpatented, which I made prior to the commencement\nof my employment with the Company Group are excluded from the scope of this Agreement. To preclude any possible\nuncertainty, I have set forth on Exhibit B (Prior Inventions) attached hereto a complete list of all Inventions that I have,\nalone or jointly with others, conceived, developed or reduced to practice or caused to be conceived, developed or\nreduced to practice prior to the commencement of my employment with the Company Group or that I have an ownership\ninterest in or which I have a license to use, that I consider to be my property or the property of third parties and that I wish\nto have excluded from the scope of this Agreement (collectively referred to as “Prior Inventions”). If disclosure of any\nsuch Prior Invention would cause me to violate any prior confidentiality agreement, I understand that I am not to list such\nPrior Inventions in Exhibit B but am only to disclose a cursory name for each such invention, a listing of the party(ies) to\nwhom it belongs and the fact that full disclosure as to such inventions has not been made for that reason. A space is\nprovided on Exhibit B for such purpose. If no such disclosure is attached, I represent that there are no Prior Inventions.\nIf, in the course of my employment with the Company Group, I incorporate a Prior Invention into a Company Group\nproduct, process, machine or other work, the Company is hereby granted and shall have a nonexclusive, royalty-free,\nfully paid-up, irrevocable, assumable, perpetual and worldwide license (with rights to sublicense through multiple tiers of\nsublicensees) to reproduce, make, have made, make derivative works of, copy, distribute, publicly perform, publicly\ndisplay in any form or medium, whether now known or later developed, modify, use, sell, import, offer for sale and\nexercise any and all present or future rights in, such Prior Invention. Notwithstanding the foregoing, I agree that I will not\nincorporate, or permit to be incorporated, Prior Inventions in any Company Group Inventions without the Company’s prior\nwritten consent. Notwithstanding the foregoing, I acknowledge and agree that if I use any of my Prior Inventions in the\nscope of my employment, or include them in any product or service of the Company Group, I hereby grant to the\nCompany a perpetual, irrevocable, nonexclusive, world-wide, royalty-free license to use, disclose, make, sell, copy,\ndistribute, modify and create works based on, perform or display such Prior Inventions and to sublicense third parties with\nthe same rights.\n2.3\nAssignment of Inventions. Subject to Sections 2.4, and 2.6, without further compensation, I hereby\nassign and agree to assign in the future (when any such Inventions or Proprietary Rights are first reduced to practice or\nfirst fixed in a tangible medium, as applicable) to the Company all my right, title and interest in and to any and all\nInventions (and all Proprietary Rights with respect thereto) whether or not patentable, copyrightable or otherwise legally\nprotectable, made or conceived or reduced to practice or learned by me, either alone or jointly with others, during the\nperiod of my employment with the Company Group. I understand that this assignment is intended to, and does, extend to\nsubject matters currently in existence, those in development, as well as those which have not yet been created.\nInventions assigned to the Company, or to a third party as directed by the Company pursuant to this Section 2, are\nhereinafter referred to as “Company Group Inventions.”\n2.4\nNonassignable Inventions. This Agreement does not apply to an Invention which qualifies fully as a\nnonassignable Invention under Section 2870 of the California Labor Code (hereinafter “Section 2870”). I have reviewed\nthe notification on Exhibit A (Limited Exclusion Notification) and agree that my signature acknowledges receipt of the\nnotification.\n2\n2.5\nObligation to Keep the Company Informed. During the period of my employment and for six (6)\nmonths after termination of my employment with the Company Group, I will promptly disclose to the Company fully and in\nwriting all Inventions authored, conceived or reduced to practice by me, either alone or jointly with others. In addition, I\nwill promptly disclose to the Company all patent applications filed by me or on my behalf or in which I am named as an\ninventor or co-inventor within a year after termination of employment. At the time of each such disclosure, I will advise the\nCompany in writing of any Inventions that I believe fully qualify for protection under Section 2870; and I will at that time\nprovide to the Company in writing all evidence necessary to substantiate that belief. The Company will keep in\nconfidence and will not use for any purpose or disclose to third parties without my consent any confidential information\ndisclosed in writing to the Company pursuant to this Agreement relating to Inventions that qualify fully for protection under\nthe provisions of Section 2870. I will preserve the confidentiality of any Invention that does not fully qualify for protection\nunder Section 2870.\n2.6\nGovernment or Third Party. I also agree to assign all my right, title and interest in and to any particular\nCompany Group Invention to a third party, including without limitation the United States, as directed by the Company.\n2.7\nWorks for Hire. I acknowledge that all original works of authorship which are made by me (solely or\njointly with others) within the scope of my employment and which are protectable by copyright are “works made for hire,”\npursuant to United States Copyright Act (17 U.S.C., Section 101).\n2.8\nEnforcement of Proprietary Rights. I will assist the Company Group in every proper way to obtain,\nand from time to time enforce, United States and foreign Proprietary Rights relating to Company Group Inventions in any\nand all countries. To that end I will execute, verify and deliver such documents and perform such other acts (including\nappearances as a witness) as the Company may reasonably request for use in applying for, obtaining, perfecting,\nevidencing, sustaining and enforcing such Proprietary Rights and the assignment thereof. In addition, I will execute, verify\nand deliver assignments of such Proprietary Rights to the Company or its designee. My obligation to assist the Company\nwith respect to Proprietary Rights relating to such Company Group Inventions in any and all countries shall continue\nbeyond the termination of my employment, but the Company shall compensate me at a reasonable rate after my\ntermination for the time actually spent by me at the Company’s request on such assistance.\nIn the event the Company is unable for any reason, after reasonable effort, to secure my signature on any document\nneeded in connection with the actions specified in the preceding paragraph, I hereby irrevocably designate and appoint\nthe Company and its duly authorized officers and agents as my agent and attorney in fact, which appointment is coupled\nwith an interest, to act for and on my behalf to execute, verify and file any such documents and to do all other lawfully\npermitted acts to further the purposes of the preceding paragraph with the same legal force and effect as if executed by\nme. I hereby waive and quitclaim to the Company any and all claims, of any nature whatsoever, which I now or may\nhereafter have for infringement of any Proprietary Rights assigned hereunder to the Company.\n3.\nRecords. I agree to keep and maintain adequate and current records (in the form of notes, sketches, drawings\nand in any other form that may be required by the Company) of all Proprietary Information developed by me and all\nInventions made by me during the period of my employment at the Company Group, which records shall be available to\nand, to the extent related to Proprietary Information of the Company Group or Company Group Inventions, remain the\nsole property of the Company at all times.\n4.\nAdditional Activities. I agree that during the period of my employment by the Company Group I will not,\nwithout the Company’s express written consent, engage in any employment or business activity which is competitive\nwith, or would otherwise conflict with, my employment by the Company Group. I agree further that for the period of my\nemployment by the Company Group and for one (l) year after the date of termination of my employment, (a) I will not,\neither directly or through others, solicit or attempt to solicit any employee, independent contractor or consultant of the\nCompany Group to terminate his, her or its relationship with the Company Group in order to become an employee,\nconsultant or independent contractor to or for any other person or entity, or (b) directly or indirectly solicit or otherwise\ntake away customers or suppliers of the Company Group if, in so doing, I access, use or disclose any trade secrets or\nProprietary Information of the Company Group. I acknowledge and agree that the Company Group’s lists of customers\nand suppliers, including their buying and selling habits and special needs, whether created or obtained by, or disclosed to\nme during my employment, constitute Proprietary Information of the Company Group. I acknowledge that the restrictions\nunder this Section 4 are necessary for the Company Group to protect its Confidential Information. I acknowledge and\nagree that compliance with this Agreement will not unduly burden or interfere with my ability to earn a living following\ntermination of my relationship with the Company Group.\n3\n5.\nNo Conflicting Obligation. I represent that my performance of all the terms of this Agreement and as an\nemployee of the Company Group does not and will not breach any agreement to keep in confidence information acquired\nby me in confidence or in trust prior to my employment by the Company Group. I have not entered into, and I agree I will\nnot enter into, any agreement either written or oral in conflict herewith.\n6.\nReturn of Company Documents. When I leave the employ of the Company Group, I will deliver to the\nCompany any and all of the Company Group’s property, equipment, drawings, notes, memoranda, specifications,\ndevices, formulas, and documents, together with all copies thereof, and any other material containing or disclosing any\nCompany Group Inventions, Third Party Information or Proprietary Information of the Company Group and certify in\nwriting that I have fully complied with the foregoing obligation. I agree that I will not copy, delete or alter any information\ncontained upon my Company Group computer or other Company Group equipment before I return the computer or such\nother equipment to the Company. In addition, if I have used any personal computer, server or e-mail system to receive,\nstore, review, prepare or transmit any Company Group information, including but not limited to, Proprietary Information, I\nagree to provide the Company with a computer-useable copy of all such Proprietary Information and then permanently\ndelete and expunge such Proprietary Information from those systems; and I agree to provide the Company access to my\nsystem as reasonably requested to verify that the necessary copying and/or deletion is completed. I further agree that\nany property situated on the Company Group’s premises and owned by the Company Group, including disks and other\nstorage media, filing cabinets or other work areas, is subject to inspection by the Company Group’s personnel at any time\nwith or without notice. Prior to the termination of my employment or promptly after termination of my employment, I will\ncooperate with the Company in attending an exit interview and will certify in writing that I have complied with the\nrequirements of this section and in which I acknowledge my continuing obligations under this Agreement.\n7.\nLegal And Equitable Remedies. Because my services are personal and unique and because I may have\naccess to and become acquainted with the Proprietary Information of the Company Group, the Company shall have the\nright to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief,\nwithout bond and without prejudice to any other rights and remedies that the Company may have for a breach of this\nAgreement.\n8.\nNotices. Any notices required or permitted hereunder shall be given to the appropriate party at the address\nspecified below or at such other address as the party shall specify in writing. Such notice shall be deemed given upon\npersonal delivery to the appropriate address or if sent by certified or registered mail, three (3) days after the date of\nmailing.\n9.\nNotification Of New Employer or Firm. In the event that I leave the employ of the Company Group, I hereby\nconsent to the notification of each of my future employers (and any other organization to which I provide services) of my\nrights and obligations under this Agreement by the Company providing a copy of this Agreement or otherwise.\n10.\nGeneral Provisions.\n10.1\nGoverning Law; Consent to Personal Jurisdiction. This Agreement will be governed by and\nconstrued according to the laws of the State of Pennsylvania, as such laws are applied to agreements entered into and to\nbe performed entirely within Pennsylvania between Pennsylvania residents, without giving effect to any conflicts of laws\nprinciples that require the application of the law of a different state. I hereby expressly consent to the personal jurisdiction\nand venue of the state and federal courts located in Allegheny County, Pennsylvania for any lawsuit filed there against\nme by the Company arising from or related to this Agreement.\n10.2\nSeverability. In case any one or more of the provisions contained in this Agreement shall, for any\nreason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not\naffect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or\nunenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in\nthis Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or\nsubject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the\napplicable law as it shall then appear.\n10.3\nSuccessors and Assigns. This Agreement will be binding upon my heirs, executors, administrators\nand other legal representatives and will be for the benefit of the Company, its successors, and its assigns.\n10.4\nSurvival. The provisions of this Agreement shall survive the termination of my employment and the\nassignment of this Agreement by the Company to any successor in interest or other assignee.\n10.5\nEmployment. I understand that this Agreement does not constitute a contract of employment or\nobligate the Company Group to employ me for any stated period of time. I agree and understand that, unless otherwise\nprovided in a separate agreement between any member of the Company Group and me, I am an “at will” employee of the\nCompany Group and nothing in this Agreement shall interfere in any way with my right or the Company Group’s right to\nterminate my employment at any time, with or without cause and with or without advance notice.\n4\n10.6\nWaiver. No waiver by the Company of any breach of this Agreement shall be a waiver of any preceding\nor succeeding breach. No waiver by the Company of any right under this Agreement shall be construed as a waiver of\nany other right. The Company shall not be required to give notice to enforce strict adherence to all terms of this\nAgreement.\n10.7\nAdvice of Counsel. I acknowledge that, in executing this Agreement, I have had the opportunity to\nseek the advice of independent legal counsel, and I have read and understood all of the terms and provisions of this\nAgreement. This Agreement shall not be construed against any party by reason of the drafting or preparation hereof.\n10.8\nVoluntary Execution. I certify and acknowledge that I have carefully read all of the provisions of this\nAgreement, that I understand and have voluntarily accepted such provisions, and that I will fully and faithfully comply with\nsuch provisions.\n10.9\nEntire Agreement. The obligations pursuant to Sections 1, 2 and 3 of this Agreement shall apply to any\ntime during which I was previously employed, or am in the future employed, by the Company Group as a consultant if no\nother agreement governs nondisclosure and assignment of inventions during such period. This Agreement together with\nthat certain offer letter by and between the Company and me, dated as of May 18, 2019 (as may be amended or restated\nfrom time to time),] is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof\nand supersedes and merges all prior discussions between the parties with respect to the subject matter hereof. No\nmodification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective\nunless in writing and signed by the party to be charged. Any subsequent change or changes in my duties, salary or\ncompensation will not affect the validity or scope of this Agreement.\nThis Agreement shall be effective as of the first day of my employment with the Company Group, namely\nimmediately after the merger with Ohr Pharmaceutical is consumated.\nI have read this agreement carefully and understand its terms. I have completely filled out Exhibit B to\nthis agreement.\nDated: 5/18/2019\n/s/ Sam Backenroth\n(Signature)\nName: Sam Backenroth\nAccepted And Agreed To:\nNeuBase Therapeutics, Inc.\nBy:/s/ Dietrich Stephan\nName: Dietrich Stephan\nTitle: CEO\nAddress:\n213 Smithfield Street\nPittsburgh, PA 15222\nDated: 5/18/2019
+ef8abbfb0ee9179ce12ae4b0f59ec103.pdf	effective_date jurisdiction party term	Mutual Non Disclosure Agreement\nThis Mutual Non Disclosure Agreement (the “Agreement”) is made and entered into as of the 25th day of February, 2005 (the “Effective Date”)\nby and between SPECIALIZED MARKETING SERVICES, INC., a California corporation with offices at 17809 Gillette Ave, Irvine, CA\n92614 (“SMS”) and Amerikal Nutraceutical Corp. a CA corporation with offices at 17751 Mitchell Avenue Irvine, CA 92614 (the “Company”).\nWHEREAS, SMS and Company have agreed to enter into certain business discussions and/or transactions regarding Marketing Services (the\n“Transaction”);\nWHEREAS, SMS and Company will disclose certain information and documentation that is non-public, confidential and/or proprietary in\nnature during discussions regarding the Transaction in order to evaluate a potential business relationship between SMS and Company (the\n“Purpose”);\nNOW THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement, and intending to be legally bound by\nthis Agreement, SMS and Company hereby agrees as follows:\n1.\nAny information and documents that are furnished by one party to another, whether intentionally or unintentionally and whether or not\nrelated to the Transaction, unless otherwise excepted, are proprietary and confidential and shall be used only for the Purpose. This information\nincludes, without limitation: the terms of this Agreement; technical specifications and operating manuals; information relating to and descriptions\nof current, future, or proposed products and services and combinations of products and services; financial information; information related to\nmergers or acquisitions; passwords and security procedures; computer programs, software, and software documentation; customer and/or\nprospective client lists, data files, and all other information relating in any way to the customer and/or prospective clients and printouts; records;\npolicies, practices and procedures; and any or all other information, data or materials relating to the business, trade secrets and technology of a\nparry, its customers, clients, employees, business affairs, affiliates, subsidiaries and the affiliates of its parent organization (all of the foregoing\ncollectively referred to as “Confidential Information”). For the purpose of this Agreement, the “Discloser” is the party to whom the Confidential\nInformation belongs and the “Recipient” is the party receiving Confidential Information.\n2.\nEach party agrees to maintain the Confidential Information in confidence using the same degree of care that it uses to protect its own\ninformation of a confidential nature, but in no event less than a reasonable standard of care. Each party further agrees to (a) restrict disclosure of\nConfidential Information solely to persons who need to know the Confidential Information to perform under this Agreement, and (b) use the\nConfidential Information only for the Purpose, and (c) not to disclose any Confidential Information to any third party without written approval of\nDiscloser, and (d) inform those third parties and other persons who receive Confidential Information of its confidential nature and obtain their\nwritten agreement to abide by confidentiality provisions that are no less stringent than those set forth in this Agreement. Recipient agrees that it\nshall not make copies of the Confidential Information except as absolutely required for the Purpose. All copies made, in any medium whatsoever,\nshall retain all confidential and proprietary markings of the original and shall be covered by the terms and conditions of this Agreement.\n3.\nExcept as required by law, without the prior written consent of Discloser, neither Recipient nor any of its representatives will disclose to\nany other person or entity the fact that the Confidential Information has been made available, that discussion or negotiations are taking place\nconcerning the Transaction, or any of the terms, conditions or other facts with respect to the Transaction.\n4.\nAll Confidential Information is and will remain the property of Discloser. By disclosing the Confidential Information, Discloser does\nnot grant any express or implied license or other rights to or under its copyrights, trademarks, trade secrets or other proprietary rights.\n5.\nThe obligations imposed under this Agreement shall not apply to Confidential Information that (a) is made public by Discloser, or (b) is\nor becomes generally available to the public other than as a result of disclosure by Recipient or its representatives, or (c) is or becomes available\nto Recipient on a non-confidential basis from a source (other than Discloser or its representatives) that is not known to Recipient to be prohibited\nfrom disclosing such\n1\nConfidential Information to Recipient by a legal, contractual or fiduciary obligation to Discloser; or (d) is disclosed with the prior written consent\nof Discloser. In the event that Recipient or any of its agents becomes legally compelled (by deposition, interrogatory, request for documents,\nsubpoena, civil or criminal investigative demand or similar process) to disclose any Confidential Information, then Recipient shall provide\nDiscloser with prompt prior notice so that Discloser may seek a protective order or other appropriate remedy. In the event that such protective\norder or other remedy is not obtained, or that Discloser waives compliance with the provisions of this Agreement, Recipient will furnish only that\nportion of the Confidential Information which in the judgment of its counsel is legally required and will exercise reasonable efforts to obtain\nassurances that confidential treatment will be accorded the Confidential Information.\n6.\nEach party acknowledges and agrees that any breach or threatened breach of any of the provisions of this Agreement will result in\nimmediate and irreparable harm and that any remedies at law in such event will be inadequate. Each party agrees that such breaches, whether\nthreatened or actual, will give the non-breaching party the right to terminate this Agreement immediately and obtain injunctive relief to restrain\nsuch disclosure or use. This right shall, however, be in addition to and not in lieu of any other remedies at law or in equity.\n7.\nEither party may terminate this Agreement at any time upon ten (10) days prior written notice to the other party. Either party may\nimmediately terminate this Agreement upon written notice in the event of a breach by the other party of any term or condition of this Agreement.\nNotwithstanding any termination of the Agreement, and whether or not the Transaction proceeds, all provisions of this Agreement will remain in\neffect for a period of two (2) years from the Effective Date hereof unless sooner terminated or superseded by mutual agreement of the parties.\n8.\nUpon termination of the Agreement, all copies of the Confidential Information, except for that portion of the Confidential Information\nthat consists of analyses, compilations, forecasts, studies or other documents prepared by Recipient will either be destroyed or returned to the\nDiscloser within ten (10) days following written request. That portion of the Confidential Information that consists of analyses, compilations,\nforecasts, studies or other documents prepared by Recipient will be held by Recipient and kept confidential and subject to the terms and\nconditions of this Agreement or destroyed in the event negotiations for the Transaction are terminated.\n9.\nThis Agreement is not intended to and shall not be construed as creating a joint venture, partnership, or other form of business\nassociation between the parties. Neither party shall have the power or authority or bind or obligate the other party.\n10.\nThis Agreement will be governed by and construed in accordance with the laws of the State of California irrespective of its choice of\nlaws principles.\n11.\nThis Agreement constitutes the only agreement between the parties relating to the confidentiality of information provided in connection\nwith the Transaction. This Agreement will expressly survive whatever determination the parties may make regarding the Transaction. Without\nlimiting the scope of the preceding sentence, the terms and restrictions of this Agreement will continue to apply during any transaction between\nthe parties, except and only to the extent otherwise set forth in the documents pertaining to such transaction.\n12.\nAny notices required or permitted hereunder will be in writing and will be deemed to have been properly given: (i) upon delivery if\ndelivered personally or by courier or overnight service; or (ii) five (5) business days after mailing by certified mail, postage prepaid, return\nreceipt requested, to the parties at the following address (or to such other address of which either party may notify the other in a notice that\ncomplies with the provision of this section):\nTo Specialized Marketing Services, Inc.\nTo: AMERIKAL NUTRACEUTICAL CORP.\n17809 Gillette Ave\nATTN HERRIE TANTONO, PRES\nIrvine, CA 92614\n17751 MITCHELL AVE\nATTN: General Manager\nIRVINE CA 92614\n13.\nNo modification or waiver of any provision of this Agreement will be valid unless such modification or waiver is in writing and) signed\nby the party against whom it is sought to be enforced. No waiver at any time of any provision of this Agreement will be deemed to be a waiver of\nany other provision of this Agreement.\n2\n14.\nIf any provision of this Agreement is held for any reason to be invalid, illegal or unenforceable, such invalidity, illegality or\nunenforceability will not affect any other provisions of this Agreement and this Agreement will be construed as if such invalid, illegal or\nunenforceable provision had not been contained herein.\nIN WITNESS WHEREOF, the parties have caused their respective authorized representatives to enter into this Agreement.\nSpecialized Marketing Services, Inc.\nCompany:\nAMERIKAL\nNUTRACEUTICAL\nCORP.\nBy: /s/ Michael Stannard\nBy: /s/ Herrie Tantono\nName: Michael Stannard\nName: Herrie Tantono\nTitle: G.M.\nTitle: President\nDate: 2/25/05\nDate:\nFeb 25, 2005\n3	Mutual Non Disclosure Agreement\nThis Mutual Non Disclosure Agreement (the “Agreement”) is made and entered into as of the 25th day of February, 2005 (the “Effective Date”)\nby and between SPECIALIZED MARKETING SERVICES, INC,, a California corporation with offices at 17809 Gillette Ave, Irvine, CA\n92614 (“SMS”) and Amerikal Nutraceutical Corp. a CA corporation with offices at 17751 Mitchell Avenue Irvine, CA 92614 (the “Company”).\nWHEREAS, SMS and Company have agreed to enter into certain business discussions and/or transactions regarding Marketing Services (the\n“Transaction™);\nWHEREAS, SMS and Company will disclose certain information and documentation that is non-public, confidential and/or proprietary in\nnature during discussions regarding the Transaction in order to evaluate a potential business relationship between SMS and Company (the\n“Purpose™);\nNOW THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement, and intending to be legally bound by\nthis Agreement, SMS and Company hereby agrees as follows:\n1. Any information and documents that are furnished by one party to another, whether intentionally or unintentionally and whether or not\nrelated to the Transaction, unless otherwise excepted, are proprietary and confidential and shall be used only for the Purpose. This information\nincludes, without limitation: the terms of this Agreement; technical specifications and operating manuals; information relating to and descriptions\nof current, future, or proposed products and services and combinations of products and services; financial information; information related to\nmergers or acquisitions; passwords and security procedures; computer programs, software, and software documentation; customer and/or\nprospective client lists, data files, and all other information relating in any way to the customer and/or prospective clients and printouts; records;\npolicies, practices and procedures; and any or all other information, data or materials relating to the business, trade secrets and technology of a\nparry, its customers, clients, employees, business affairs, affiliates, subsidiaries and the affiliates of its parent organization (all of the foregoing\ncollectively referred to as “Confidential Information”). For the purpose of this Agreement, the “Discloser” is the party to whom the Confidential\nInformation belongs and the “Recipient” is the party receiving Confidential Information.\n2. Each party agrees to maintain the Confidential Information in confidence using the same degree of care that it uses to protect its own\ninformation of a confidential nature, but in no event less than a reasonable standard of care. Each party further agrees to (a) restrict disclosure of\nConfidential Information solely to persons who need to know the Confidential Information to perform under this Agreement, and (b) use the\nConfidential Information only for the Purpose, and (c) not to disclose any Confidential Information to any third party without written approval of\nDiscloser, and (d) inform those third parties and other persons who receive Confidential Information of its confidential nature and obtain their\nwritten agreement to abide by confidentiality provisions that are no less stringent than those set forth in this Agreement. Recipient agrees that it\nshall not make copies of the Confidential Information except as absolutely required for the Purpose. All copies made, in any medium whatsoever,\nshall retain all confidential and proprietary markings of the original and shall be covered by the terms and conditions of this Agreement.\n3. Except as required by law, without the prior written consent of Discloser, neither Recipient nor any of its representatives will disclose to\nany other person or entity the fact that the Confidential Information has been made available, that discussion or negotiations are taking place\nconcerning the Transaction, or any of the terms, conditions or other facts with respect to the Transaction.\n4. All Confidential Information is and will remain the property of Discloser. By disclosing the Confidential Information, Discloser does\nnot grant any express or implied license or other rights to or under its copyrights, trademarks, trade secrets or other proprietary rights.\n5. The obligations imposed under this Agreement shall not apply to Confidential Information that (a) is made public by Discloser, or (b) is\nor becomes generally available to the public other than as a result of disclosure by Recipient or its representatives, or (c) is or becomes available\nto Recipient on a non-confidential basis from a source (other than Discloser or its representatives) that is not known to Recipient to be prohibited\nfrom disclosing such\nConfidential Information to Recipient by a legal, contractual or fiduciary obligation to Discloser; or (d) is disclosed with the prior written consent\nof Discloser. In the event that Recipient or any of its agents becomes legally compelled (by deposition, interrogatory, request for documents,\nsubpoena, civil or criminal investigative demand or similar process) to disclose any Confidential Information, then Recipient shall provide\nDiscloser with prompt prior notice so that Discloser may seek a protective order or other appropriate remedy. In the event that such protective\norder or other remedy is not obtained, or that Discloser waives compliance with the provisions of this Agreement, Recipient will furnish only that\nportion of the Confidential Information which in the judgment of its counsel is legally required and will exercise reasonable efforts to obtain\nassurances that confidential treatment will be accorded the Confidential Information.\n6. Each party acknowledges and agrees that any breach or threatened breach of any of the provisions of this Agreement will result in\nimmediate and irreparable harm and that any remedies at law in such event will be inadequate. Each party agrees that such breaches, whether\nthreatened or actual, will give the non-breaching party the right to terminate this Agreement immediately and obtain injunctive relief to restrain\nsuch disclosure or use. This right shall, however, be in addition to and not in lieu of any other remedies at law or in equity.\n7. Either party may terminate this Agreement at any time upon ten (10) days prior written notice to the other party. Either party may\nimmediately terminate this Agreement upon written notice in the event of a breach by the other party of any term or condition of this Agreement.\nNotwithstanding any termination of the Agreement, and whether or not the Transaction proceeds, all provisions of this Agreement will remain in\neffect for a period of two (2) years from the Effective Date hereof unless sooner terminated or superseded by mutual agreement of the parties.\n8. Upon termination of the Agreement, all copies of the Confidential Information, except for that portion of the Confidential Information\nthat consists of analyses, compilations, forecasts, studies or other documents prepared by Recipient will either be destroyed or returned to the\nDiscloser within ten (10) days following written request. That portion of the Confidential Information that consists of analyses, compilations,\nforecasts, studies or other documents prepared by Recipient will be held by Recipient and kept confidential and subject to the terms and\nconditions of this Agreement or destroyed in the event negotiations for the Transaction are terminated.\n9. This Agreement is not intended to and shall not be construed as creating a joint venture, partnership, or other form of business\nassociation between the parties. Neither party shall have the power or authority or bind or obligate the other party.\n10. This Agreement will be governed by and construed in accordance with the laws of the State of California irrespective of its choice of\nlaws principles.\n11. This Agreement constitutes the only agreement between the parties relating to the confidentiality of information provided in connection\nwith the Transaction. This Agreement will expressly survive whatever determination the parties may make regarding the Transaction. Without\nlimiting the scope of the preceding sentence, the terms and restrictions of this Agreement will continue to apply during any transaction between\nthe parties, except and only to the extent otherwise set forth in the documents pertaining to such transaction.\n12. Any notices required or permitted hereunder will be in writing and will be deemed to have been properly given: (i) upon delivery if\ndelivered personally or by courier or overnight service; or (ii) five (5) business days after mailing by certified mail, postage prepaid, return\nreceipt requested, to the parties at the following address (or to such other address of which either party may notify the other in a notice that\ncomplies with the provision of this section):\nTo Specialized Marketing Services, Inc. To: AMERIKAL NUTRACEUTICAL CORP.\n17809 Gillette Ave ATTN HERRIE TANTONO, PRES\nIrvine, CA 92614 17751 MITCHELL AVE\nATTN: General Manager IRVINE CA 92614\n13. No modification or waiver of any provision of this Agreement will be valid unless such modification or waiver is in writing and) signed\nby the party against whom it is sought to be enforced. No waiver at any time of any provision of this Agreement will be deemed to be a waiver of\nany other provision of this Agreement.\n14. If any provision of this Agreement is held for any reason to be invalid, illegal or unenforceable, such invalidity, illegality or\nunenforceability will not affect any other provisions of this Agreement and this Agreement will be construed as if such invalid, illegal or\nunenforceable provision had not been contained herein.\nIN WITNESS WHEREOF, the parties have caused their respective authorized representatives to enter into this Agreement.\nSpecialized Marketing Services, Inc. Company: AMERIKAL\nNUTRACEUTICAL\nCORP.\nBy: /s/ Michael Stannard By: /s/ Herrie Tantono\nName: Michael Stannard Name: Herrie Tantono\nTitle: G.M. Title: President\nDate: 2/25/05 Date: Feb 25, 2005	Mutual Non Disclosure Agreement\nThis Mutual Non Disclosure Agreement (the "Agreement") is made and entered into as of the 25th day of February, 2005 (the "Effective Date")\nby\nand between SPECIALIZED MARKETING SERVICES, INC., a California corporation with offices at 17809 Gillette Ave, Irvine, CA\n92614 ("SMS") and Amerikal Nutraceutical Corp. a CA corporation with offices at 17751 Mitchell Avenue Irvine, CA 92614 (the "Company").\nWHEREAS, SMS and Company have agreed to enter into certain business discussions and/or transactions regarding Marketing Services (the\n"Transaction");\nWHEREAS, SMS and Company will disclose certain information and documentation that is non-public, confidential and/or proprietary in\nnature during discussions regarding the Transaction in order to evaluate a potential business relationship between SMS and Company (the\n"Purpose");\nNOW THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement and intending to be legally bound\nby\nthis Agreement, SMS and Company hereby agrees as follows:\n1.\nAny information and documents that are furnished by one party to another, whether intentionally or unintentionally and whether or not\nrelated to the Transaction, unless otherwise excepted, are proprietary and confidential and shall be used only for the Purpose. This information\nincludes, without limitation: the terms of this Agreement; technical specifications and operating manuals; information relating to and descriptions\nof current, future, or proposed products and services and combinations of products and services; financial information; information related\nto\nmergers or acquisitions; passwords and security procedures; computer programs, software, and software documentation; customer and/or\nprospective client lists, data files, and all other information relating in any way to the customer and/or prospective clients and printouts; records;\npolicies, practices and procedures; and any or all other information, data or materials relating to the business, trade secrets and technology of a\nparry, its customers, clients, employees, business affairs, affiliates, subsidiaries and the affiliates of its parent organization (all of the foregoing\ncollectively referred to as "Confidential Information"). For the purpose of this Agreement, the "Discloser" is the party to whom the Confidential\nInformation belongs and the "Recipient" is the party receiving Confidential Information\n2.\nEach party agrees to maintain the Confidential Information in confidence using the same degree of care that it uses to protect its own\ninformation of a confidential nature, but in no event less than a reasonable standard of care. Each party further agrees to (a) restrict disclosure of\nConfidential Information solely to persons who need to know the Confidential Information to perform under this Agreement, and (b) use the\nConfidential Information only for the Purpose, and (c) not to disclose any Confidential Information to any third party without written approval\nof\nDiscloser, and (d) inform those third parties and other persons who receive Confidential Information of its confidential nature and obtain their\nwritten agreement to abide by confidentiality provisions that are no less stringent than those set forth in this Agreement. Recipient agrees that it\nshall not make copies of the Confidential Information except as absolutely required for the Purpose. All copies made, in any medium whatsoever,\nshall retain all confidential and proprietary markings of the original and shall be covered by the terms and conditions of this Agreement.\n3.\nExcept as required by law, without the prior written consent of Discloser, neither Recipient nor any of its representatives will disclose to\nany other person or entity the fact that the Confidential Information has been made available, that discussion or negotiations are taking place\nconcerning the Transaction, or any of the terms, conditions or other facts with respect to the Transaction.\n4.\nAll Confidential Information is and will remain the property of Discloser. By disclosing the Confidential Information, Discloser does\nnot grant any express or implied license or other rights to or under its copyrights, trademarks, trade secrets or other proprietary rights.\n5.\nThe obligations imposed under this Agreement shall not apply to Confidential Information that (a) is made public by Discloser, or (b)\nis\nor becomes generally available to the public other than as a result of disclosure by Recipient or its representatives, or (c) is or becomes available\nto Recipient on a non-confidential basis from a source (other than Discloser or its representatives) that is not known to Recipient to be prohibited\nfrom disclosing such\n1\nConfidential Information to Recipient by a legal, contractual or fiduciary obligation to Discloser; or (d) is disclosed with the prior written consent\nof Discloser. In the event that Recipient or any of its agents becomes legally compelled (by deposition, interrogatory, request for documents,\nsubpoena, civil or criminal investigative demand or similar process) to disclose any Confidential Information, then Recipient shall provide\nDiscloser with prompt prior notice so that Discloser may seek a protective order or other appropriate remedy. In the event that such protective\norder or other remedy is not obtained, or that Discloser waives compliance with the provisions of this Agreement, Recipient will furnish only\nthat\nportion of the Confidential Information which in the judgment of its counsel is legally required and will exercise reasonable efforts to obtain\nassurances that confidential treatment will be accorded the Confidential Information.\n6.\nEach party acknowledges and agrees that any breach or threatened breach of any of the provisions of this Agreement will result in\nimmediate and irreparable harm and that any remedies at law in such event will be inadequate. Each party agrees that such breaches, whether\nthreatened or actual, will give the non-breaching party the right to terminate this Agreement immediately and obtain injunctive relief to restrain\nsuch disclosure or use. This right shall, however, be in addition to and not in lieu of any other remedies at law or in equity.\n7.\nEither party may terminate this Agreement at any time upon ten (10) days prior written notice to the other party. Either party may\nimmediately terminate this Agreement upon written notice in the event of a breach by the other party of any term or condition of this Agreement.\nNotwithstanding any termination of the Agreement, and whether or not the Transaction proceeds, all provisions of this Agreement will remain in\neffect for a period of two (2) years from the Effective Date hereof unless sooner terminated or superseded by mutual agreement of the parties.\n8.\nUpon termination of the Agreement, all copies of the Confidential Information, except for that portion of the Confidential Information\nthat consists of analyses, compilations, forecasts, studies or other documents prepared by Recipient will either be destroyed or returned to the\nDiscloser within ten (10) days following written request. That portion of the Confidential Information that consists of analyses, compilations,\nforecasts, studies or other documents prepared by Recipient will be held by Recipient and kept confidential and subject to the terms and\nconditions of this Agreement or destroyed in the event negotiations for the Transaction are terminated.\n9.\nThis Agreement is not intended to and shall not be construed as creating a joint venture, partnership, or other form of business\nassociation between the parties. Neither party shall have the power or authority or bind or obligate the other party.\n10.\nThis Agreement will be governed by and construed in accordance with the laws of the State of California irrespective of its choice of\nlaws principles.\n11.\nThis Agreement constitutes the only agreement between the parties relating to the confidentiality of information provided in connection\nwith the Transaction. This Agreement will expressly survive whatever determination the parties may make regarding the Transaction. Without\nlimiting the scope of the preceding sentence, the terms and restrictions of this Agreement will continue to apply during any transaction between\nthe parties, except and only to the extent otherwise set forth in the documents pertaining to such transaction.\n12.\nAny notices required or permitted hereunder will be in writing and will be deemed to have been properly given: (i) upon delivery if\ndelivered personally or by courier or overnight service; or (ii) five (5) business days after mailing by certified mail, postage prepaid, return\nreceipt requested, to the parties at the following address (or to such other address of which either party may notify the other in a notice that\ncomplies with the provision of this section):\nTo Specialized Marketing Services, Inc.\nTo: AMERIKAL NUTRACEUTICAL CORP.\n17809 Gillette Ave\nATTN HERRIE TANTONO, PRES\nIrvine, CA 92614\n17751 MITCHELL AVE\nATTN: General Manager\nIRVINE CA 92614\n13.\nNo modification or waiver of any provision of this Agreement will be valid unless such modification or waiver is in writing and) signed\nby the party against whom it is sought to be enforced. No waiver at any time of any provision of this Agreement will be deemed to be a waiver\nof\nany other provision of this Agreement.\n2\n14.\nIf any provision of this Agreement is held for any reason to be invalid, illegal or unenforceable, such invalidity, illegality or\nunenforceability will not affect any other provisions of this Agreement and this Agreement will be construed as if such invalid, illegal or\nunenforceable provision had not been contained herein.\nIN WITNESS WHEREOF, the parties have caused their respective authorized representatives to enter into this Agreement.\nSpecialized Marketing Services, Inc.\nCompany:\nAMERIKAL\nNUTRACEUTICAL\nCORP.\nBy: /s/ Michael Stannard\nBy: /s/ Herrie Tantono\nName: Michael Stannard\nName: Herrie Tantono\nTitle: G.M.\nTitle: President\nDate: 2/25/05\nDate:\nFeb 25, 2005\n3	Mutual Non Disclosure Agreement\nThis Mutual Non Disclosure Agreement (the “Agreement”) is made and entered into as of the 25th day of February, 2005 (the “Effective Date”)\nby and between SPECIALIZED MARKETING SERVICES, INC., a California corporation with offices at 17809 Gillette Ave, Irvine, CA\n92614 (“SMS”) and Amerikal Nutraceutical Corp. a CA corporation with offices at 17751 Mitchell Avenue Irvine, CA 92614 (the “Company”).\nWHEREAS, SMS and Company have agreed to enter into certain business discussions and/or transactions regarding Marketing Services (the\n“Transaction”);\nWHEREAS, SMS and Company will disclose certain information and documentation that is non-public, confidential and/or proprietary in\nnature during discussions regarding the Transaction in order to evaluate a potential business relationship between SMS and Company (the\n“Purpose”);\nNOW THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement, and intending to be legally bound by\nthis Agreement, SMS and Company hereby agrees as follows:\n1.\nAny information and documents that are furnished by one party to another, whether intentionally or unintentionally and whether or not\nrelated to the Transaction, unless otherwise excepted, are proprietary and confidential and shall be used only for the Purpose. This information\nincludes, without limitation: the terms of this Agreement; technical specifications and operating manuals; information relating to and descriptions\nof current, future, or proposed products and services and combinations of products and services; financial information; information related to\nmergers or acquisitions; passwords and security procedures; computer programs, software, and software documentation; customer and/or\nprospective client lists, data files, and all other information relating in any way to the customer and/or prospective clients and printouts; records;\npolicies, practices and procedures; and any or all other information, data or materials relating to the business, trade secrets and technology of a\nparry, its customers, clients, employees, business affairs, affiliates, subsidiaries and the affiliates of its parent organization (all of the foregoing\ncollectively referred to as “Confidential Information”). For the purpose of this Agreement, the “Discloser” is the party to whom the Confidential\nInformation belongs and the “Recipient” is the party receiving Confidential Information.\n2.\nEach party agrees to maintain the Confidential Information in confidence using the same degree of care that it uses to protect its own\ninformation of a confidential nature, but in no event less than a reasonable standard of care. Each party further agrees to (a) restrict disclosure of\nConfidential Information solely to persons who need to know the Confidential Information to perform under this Agreement, and (b) use the\nConfidential Information only for the Purpose, and (c) not to disclose any Confidential Information to any third party without written approval of\nDiscloser, and (d) inform those third parties and other persons who receive Confidential Information of its confidential nature and obtain their\nwritten agreement to abide by confidentiality provisions that are no less stringent than those set forth in this Agreement. Recipient agrees that it\nshall not make copies of the Confidential Information except as absolutely required for the Purpose. All copies made, in any medium whatsoever,\nshall retain all confidential and proprietary markings of the original and shall be covered by the terms and conditions of this Agreement.\n3.\nExcept as required by law, without the prior written consent of Discloser, neither Recipient nor any of its representatives will disclose to\nany other person or entity the fact that the Confidential Information has been made available, that discussion or negotiations are taking place\nconcerning the Transaction, or any of the terms, conditions or other facts with respect to the Transaction.\n4.\nAll Confidential Information is and will remain the property of Discloser. By disclosing the Confidential Information, Discloser does\nnot grant any express or implied license or other rights to or under its copyrights, trademarks, trade secrets or other proprietary rights.\n5.\nThe obligations imposed under this Agreement shall not apply to Confidential Information that (a) is made public by Discloser, or (b) is\nor becomes generally available to the public other than as a result of disclosure by Recipient or its representatives, or (c) is or becomes available\nto Recipient on a non-confidential basis from a source (other than Discloser or its representatives) that is not known to Recipient to be prohibited\nfrom disclosing such\n1\nConfidential Information to Recipient by a legal, contractual or fiduciary obligation to Discloser; or (d) is disclosed with the prior written consent\nof Discloser. In the event that Recipient or any of its agents becomes legally compelled (by deposition, interrogatory, request for documents,\nsubpoena, civil or criminal investigative demand or similar process) to disclose any Confidential Information, then Recipient shall provide\nDiscloser with prompt prior notice so that Discloser may seek a protective order or other appropriate remedy. In the event that such protective\norder or other remedy is not obtained, or that Discloser waives compliance with the provisions of this Agreement, Recipient will furnish only that\nportion of the Confidential Information which in the judgment of its counsel is legally required and will exercise reasonable efforts to obtain\nassurances that confidential treatment will be accorded the Confidential Information.\n6.\nEach party acknowledges and agrees that any breach or threatened breach of any of the provisions of this Agreement will result in\nimmediate and irreparable harm and that any remedies at law in such event will be inadequate. Each party agrees that such breaches, whether\nthreatened or actual, will give the non-breaching party the right to terminate this Agreement immediately and obtain injunctive relief to restrain\nsuch disclosure or use. This right shall, however, be in addition to and not in lieu of any other remedies at law or in equity.\n7.\nEither party may terminate this Agreement at any time upon ten (10) days prior written notice to the other party. Either party may\nimmediately terminate this Agreement upon written notice in the event of a breach by the other party of any term or condition of this Agreement.\nNotwithstanding any termination of the Agreement, and whether or not the Transaction proceeds, all provisions of this Agreement will remain in\neffect for a period of two (2) years from the Effective Date hereof unless sooner terminated or superseded by mutual agreement of the parties.\n8.\nUpon termination of the Agreement, all copies of the Confidential Information, except for that portion of the Confidential Information\nthat consists of analyses, compilations, forecasts, studies or other documents prepared by Recipient will either be destroyed or returned to the\nDiscloser within ten (10) days following written request. That portion of the Confidential Information that consists of analyses, compilations,\nforecasts, studies or other documents prepared by Recipient will be held by Recipient and kept confidential and subject to the terms and\nconditions of this Agreement or destroyed in the event negotiations for the Transaction are terminated.\n9.\nThis Agreement is not intended to and shall not be construed as creating a joint venture, partnership, or other form of business\nassociation between the parties. Neither party shall have the power or authority or bind or obligate the other party.\n10.\nThis Agreement will be governed by and construed in accordance with the laws of the State of California irrespective of its choice of\nlaws principles.\n11.\nThis Agreement constitutes the only agreement between the parties relating to the confidentiality of information provided in connection\nwith the Transaction. This Agreement will expressly survive whatever determination the parties may make regarding the Transaction. Without\nlimiting the scope of the preceding sentence, the terms and restrictions of this Agreement will continue to apply during any transaction between\nthe parties, except and only to the extent otherwise set forth in the documents pertaining to such transaction.\n12.\nAny notices required or permitted hereunder will be in writing and will be deemed to have been properly given: (i) upon delivery if\ndelivered personally or by courier or overnight service; or (ii) five (5) business days after mailing by certified mail, postage prepaid, return\nreceipt requested, to the parties at the following address (or to such other address of which either party may notify the other in a notice that\ncomplies with the provision of this section):\nTo Specialized Marketing Services, Inc.\nTo: AMERIKAL NUTRACEUTICAL CORP.\n17809 Gillette Ave\nATTN HERRIE TANTONO, PRES\nIrvine, CA 92614\n17751 MITCHELL AVE\nATTN: General Manager\nIRVINE CA 92614\n13.\nNo modification or waiver of any provision of this Agreement will be valid unless such modification or waiver is in writing and) signed\nby the party against whom it is sought to be enforced. No waiver at any time of any provision of this Agreement will be deemed to be a waiver of\nany other provision of this Agreement.\n2\n14.\nIf any provision of this Agreement is held for any reason to be invalid, illegal or unenforceable, such invalidity, illegality or\nunenforceability will not affect any other provisions of this Agreement and this Agreement will be construed as if such invalid, illegal or\nunenforceable provision had not been contained herein.\nIN WITNESS WHEREOF, the parties have caused their respective authorized representatives to enter into this Agreement.\nSpecialized Marketing Services, Inc.\nCompany:\nAMERIKAL\nNUTRACEUTICAL\nCORP.\nBy: /s/ Michael Stannard\nBy: /s/ Herrie Tantono\nName: Michael Stannard\nName: Herrie Tantono\nTitle: G.M.\nTitle: President\nDate: 2/25/05\nDate:\nFeb 25, 2005\n3
+f124237afdc9ff7f7e693fa5e062421e.pdf	effective_date jurisdiction party term	EX-10.25 17 d567323dex1025.htm EX-10.25\nExhibit 10.25\nCONFIDENTIALITY, NON-COMPETE AND\nASSIGNMENT OF INVENTIONS AGREEMENT\nThis CONFIDENTIALITY, NON-COMPETE AND ASSIGNMENT OF INVENTIONS AGREEMENT (“Agreement’’) is dated as of the ____\nday of __________, 20__, by and between __________ (the “Employee”) and Vapotherm, Inc., a Maryland corporation.\nIn exchange for being retained as a Employee to perform services for the Company (hereinafter referred to as the “engagement”) by Vapotherm,\nInc. (the “Company”). Employee hereby agrees effective as of _________,\n____\nas follows:\n1. Assignment of Inventions. Without further compensation, Employee hereby agrees promptly to disclose to the Company, and Employee\nhereby assigns and agrees to assign to the Company or its designee, Employee’s entire right, title, and interest in and to all Inventions (as defined herein)\nwhich: (a) pertain to any line of business activity of the Company, (b) are aided by the use of time, equipment, supplies, materials, facilities, services, or\ntrade secrets of the Company, or (c) relate to any of Employee’s work during engagement. Employee hereby waives and quitclaims to the Company any\nand all claims of any nature whatsoever that Employee now or hereafter may have for infringement for any Inventions so assigned to the Company. If in\nthe course of engagement, Employee uses in or incorporates into or permits the Company to use in or incorporate into a released or unreleased Company\nproduct, program, process, or machine, an invention owned by Employee or in which Employee has an interest, the Company is hereby granted and\nshall have an exclusive royalty-free, irrevocable, worldwide license to make, have made, use, and sell that invention without restriction as to the extent\nof Employee’s ownership or interest. No rights are hereby conveyed in Inventions, if any, made by Employee prior to engagement which are identified\non Schedule A hereto or in Inventions to which the Company enjoys no claim under applicable law.\n2. Obtaining and Enforcing Inventions. Employee agrees to perform, at Company expense, during and after engagement, all acts deemed\nnecessary or desirable by the Company to permit and assist Company, in obtaining and enforcing the full benefits, enjoyment, rights and title throughout\nthe world in the Inventions hereby assigned to the Company. If Employee does not cooperate fully in signing documents, Employee hereby authorizes\nCompany to execute on Employee’s behalf as Employee’s attorney in fact for the limited purpose of perfecting Company’s rights in such Inventions, as\nif Employee had signed the same myself, any and all documents which are reasonably necessary to perfect Company’s rights in such Inventions.\n3. Additional Covenants of Employee: Employee agrees as follows:\n(a) Non-Disclosure. To hold in confidence and not directly or indirectly to use or disclose, either during or after termination of engagement, any\nConfidential Information (as defined herein) Employee obtains or creates during engagement, except to the extent authorized by the Company.\nEmployee further agrees to not disclose any Confidential Information to anyone inside the Company except on a “need-to-know” basis. Employee\nagrees not to make copies of such Confidential Information except as authorized by the Company. Upon termination of engagement or upon an earlier\nrequest of the Company, Employee will return or deliver to the Company all tangible forms of such Confidential Information in Employee’s possession\nor control.\n(b) Non-Solicitation of Employees. That during the period of engagement and for a period of one year thereafter, Employee will not solicit or\nencourage any employee of the Company to terminate his or her employment with the Company or to accept employment with any subsequent employer\nwith whom Employee is affiliated in any way.\n(c) Non-Competition. That during the period of engagement and for a period of one year thereafter, Employee will not accept another engagement\nor engage in activities directly or indirectly competitive with products (including actual or demonstrably anticipated research or development) on which\nEmployee worked or about which Employee learned proprietary or confidential or trade secret information during engagement. Employee shall not use\nat any time during the period of engagement or for any time afterwards, any proprietary or confidential or trade secret information which Employee\nlearned during engagement, in a manner which would be injurious to Company.\n4. Inventions and Confidential Information. As used in this Agreement, the term “Inventions” includes, without limitation, electronic designs,\nhardware and software creations, discoveries, formulae, processes, manufacturing techniques, trade secrets, inventions, improvements, concepts,\ntechniques, methods, systems, designs, circuits, cost data, computer programs, development or experimental work, work in progress, ideas and\ncopyrightable or patentable works, including all rights to obtain, register, perfect and enforce these proprietary interests. The term “Confidential\nInformation” means (a) information pertaining to any aspect of the Company’s business which is not known by actual or potential competitors of the\nCompany or (b) proprietary information of the Company or its customers or suppliers, whether of a technical nature or otherwise, which the Company\n(or its suppliers or vendors) takes reasonable measures to protect against unauthorized disclosure to or use by third parties, including, without limitation,\ntechnical, financial, marketing, manufacturing, or distribution information, customer or client lists and names; addresses and phone numbers of\nCompany’s customers, clients, and employees; or other technical or business information or trade secrets of the Company.\n5. Equitable Relief. Employee acknowledges that any violation of this Agreement by Employee will cause irreparable injury to the Company, and\nthe Company shall be entitled to extraordinary relief in court. Employee agrees that if court proceedings are required to enforce any provision of this\nAgreement, the prevailing party shall be entitled to an award of reasonable and necessary expenses of litigation.\n6. Modifications. This Agreement may be amended, modified and supplemented only by written agreement of the parties hereto.\n7. No Waiver. No failure or delay on the part of any party in exercising any right, power or remedy hereunder shall operate as a waiver thereof;\nnor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other\nright, power or remedy hereunder.\n-2-\n8. Validity. In the event that any provision hereof would, under applicable law, be invalid or unenforceable, such provision shall, to the extent\npermitted under applicable law, be construed by modifying or limiting it so as to be valid and enforceable to the maximum extent possible under\napplicable law. The provisions of this Agreement are severable, and in the event that any provision hereof should be held invalid or unenforceable in any\nrespect, it shall not invalidate, render unenforceable or otherwise affect any other provision hereof.\n9. Successors and Assigns. This Agreement shall inure to the benefit of the successors and assigns of the Company. The Company may assign its\nrights under this Agreement in connection with any sale, transfer of other disposition of all or a substantial portion of the stock or assets of the Company.\nEmployee may not assign Employee’s duties or obligations hereunder.\n10. Miscellaneous. This Agreement and the rights and obligations of the parties relating to the subject matter of this Agreement, shall be governed\nby and construed in accordance with the internal laws of the State of Maryland, without regard to the principles of conflicts of laws thereof. This\nAgreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all other prior agreements and\nunderstandings, both written and oral, between the parties with respect to the subject matter hereof. This Agreement may be executed in one or more\ncounterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same agreement. The descriptive\nheadings herein are inserted for convenience of reference only.\n-3-\nIN WITNESS WHEREOF, the parties have executed this Consulting Agreement as of the date and year first above written.\nVapotherm, Inc.\nBy:\nName:\nTitle: President\nEMPLOYEE\n[Name]\nEMPLOYEE HEREBY CERTIFIES AND ACKNOWLEDGES THAT EMPLOYEE HAS CAREFULLY READ ALL OF THE PROVISIONS OF\nTHIS AGREEMENT AND THAT EMPLOYEE UNDERSTANDS AND WILL FULLY AND FAITHFULLY COMPLIES WITH SUCH\nPROVISIONS.\nEMPLOYEE\n[Name]\nSchedule A\nThe following “Inventions,’’ as that term is defined in the Agreement to which this Attachment affixed, if any, are claimed by Employee:	EX-10.25 17 d567323dex1025.htm EX-10.25\nExhibit 10.25\nCONFIDENTIALITY, NON-COMPETE AND\nASSIGNMENT OF INVENTIONS AGREEMENT\nThis CONFIDENTIALITY, NON-COMPETE AND ASSIGNMENT OF INVENTIONS AGREEMENT (“Agreement’’) is dated as of the\nday of , 20__, by and between (the “Employee”) and Vapotherm, Inc., a Maryland corporation.\nIn exchange for being retained as a Employee to perform services for the Company (hereinafter referred to as the “engagement”) by Vapotherm,\nInc. (the “Company”). Employee hereby agrees effective as of s as follows:\n1. Assignment of Inventions. Without further compensation, Employee hereby agrees promptly to disclose to the Company, and Employee\nhereby assigns and agrees to assign to the Company or its designee, Employee’s entire right, title, and interest in and to all Inventions (as defined herein)\nwhich: (a) pertain to any line of business activity of the Company, (b) are aided by the use of time, equipment, supplies, materials, facilities, services, or\ntrade secrets of the Company, or (c) relate to any of Employee’s work during engagement. Employee hereby waives and quitclaims to the Company any\nand all claims of any nature whatsoever that Employee now or hereafter may have for infringement for any Inventions so assigned to the Company. If in\nthe course of engagement, Employee uses in or incorporates into or permits the Company to use in or incorporate into a released or unreleased Company\nproduct, program, process, or machine, an invention owned by Employee or in which Employee has an interest, the Company is hereby granted and\nshall have an exclusive royalty-free, irrevocable, worldwide license to make, have made, use, and sell that invention without restriction as to the extent\nof Employee’s ownership or interest. No rights are hereby conveyed in Inventions, if any, made by Employee prior to engagement which are identified\non Schedule A hereto or in Inventions to which the Company enjoys no claim under applicable law.\n2. Obtaining and Enforcing Inventions. Employee agrees to perform, at Company expense, during and after engagement, all acts deemed\nnecessary or desirable by the Company to permit and assist Company, in obtaining and enforcing the full benefits, enjoyment, rights and title throughout\nthe world in the Inventions hereby assigned to the Company. If Employee does not cooperate fully in signing documents, Employee hereby authorizes\nCompany to execute on Employee’s behalf as Employee’s attorney in fact for the limited purpose of perfecting Company’s rights in such Inventions, as\nif Employee had signed the same myself, any and all documents which are reasonably necessary to perfect Company’s rights in such Inventions.\n3. Additional Covenants of Employee: Employee agrees as follows:\n(a) Non-Disclosure. To hold in confidence and not directly or indirectly to use or disclose, either during or after termination of engagement, any\nConfidential Information (as defined herein) Employee obtains or creates during engagement, except to the extent authorized by the Company.\nEmployee further agrees to not disclose any Confidential Information to anyone inside the Company except on a “need-to-know” basis. Employee\nagrees not to make copies of such Confidential Information except as authorized by the Company. Upon termination of engagement or upon an earlier\nrequest of the Company, Employee will return or deliver to the Company all tangible forms of such Confidential Information in Employee’s possession\nor control.\n(b) Non-Solicitation of Employees. That during the period of engagement and for a period of one year thereafter, Employee will not solicit or\nencourage any employee of the Company to terminate his or her employment with the Company or to accept employment with any subsequent employer\nwith whom Employee is affiliated in any way.\n(c) Non-Competition. That during the period of engagement and for a period of one year thereafter, Employee will not accept another engagement\nor engage in activities directly or indirectly competitive with products (including actual or demonstrably anticipated research or development) on which\nEmployee worked or about which Employee learned proprietary or confidential or trade secret information during engagement. Employee shall not use\nat any time during the period of engagement or for any time afterwards, any proprietary or confidential or trade secret information which Employee\nlearned during engagement, in a manner which would be injurious to Company.\n4. Inventions and Confidential Information. As used in this Agreement, the term “Inventions” includes, without limitation, electronic designs,\nhardware and software creations, discoveries, formulae, processes, manufacturing techniques, trade secrets, inventions, improvements, concepts,\ntechniques, methods, systems, designs, circuits, cost data, computer programs, development or experimental work, work in progress, ideas and\ncopyrightable or patentable works, including all rights to obtain, register, perfect and enforce these proprietary interests. The term “Confidential\nInformation” means (a) information pertaining to any aspect of the Company’s business which is not known by actual or potential competitors of the\nCompany or (b) proprietary information of the Company or its customers or suppliers, whether of a technical nature or otherwise, which the Company\n(or its suppliers or vendors) takes reasonable measures to protect against unauthorized disclosure to or use by third parties, including, without limitation,\ntechnical, financial, marketing, manufacturing, or distribution information, customer or client lists and names; addresses and phone numbers of\nCompany’s customers, clients, and employees; or other technical or business information or trade secrets of the Company.\n5. Equitable Relief. Employee acknowledges that any violation of this Agreement by Employee will cause irreparable injury to the Company, and\nthe Company shall be entitled to extraordinary relief in court. Employee agrees that if court proceedings are required to enforce any provision of this\nAgreement, the prevailing party shall be entitled to an award of reasonable and necessary expenses of litigation.\n6. Modifications. This Agreement may be amended, modified and supplemented only by written agreement of the parties hereto.\n7. No Waiver. No failure or delay on the part of any party in exercising any right, power or remedy hereunder shall operate as a waiver thereof;\nnor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other\nright, power or remedy hereunder.\n-\n8. Validity. In the event that any provision hereof would, under applicable law, be invalid or unenforceable, such provision shall, to the extent\npermitted under applicable law, be construed by modifying or limiting it so as to be valid and enforceable to the maximum extent possible under\napplicable law. The provisions of this Agreement are severable, and in the event that any provision hereof should be held invalid or unenforceable in any\nrespect, it shall not invalidate, render unenforceable or otherwise affect any other provision hereof.\n9. Successors and Assigns. This Agreement shall inure to the benefit of the successors and assigns of the Company. The Company may assign its\nrights under this Agreement in connection with any sale, transfer of other disposition of all or a substantial portion of the stock or assets of the Company.\nEmployee may not assign Employee’s duties or obligations hereunder.\n10. Miscellaneous. This Agreement and the rights and obligations of the parties relating to the subject matter of this Agreement, shall be governed\nby and construed in accordance with the internal laws of the State of Maryland, without regard to the principles of conflicts of laws thereof. This\nAgreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all other prior agreements and\nunderstandings, both written and oral, between the parties with respect to the subject matter hereof. This Agreement may be executed in one or more\ncounterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same agreement. The descriptive\nheadings herein are inserted for convenience of reference only.\n3-\nIN WITNESS WHEREOF, the parties have executed this Consulting Agreement as of the date and year first above written.\nVapotherm, Inc.\nBy:\nName:\nTitle: President\nEMPLOYEE\n[Name]\nEMPLOYEE HEREBY CERTIFIES AND ACKNOWLEDGES THAT EMPLOYEE HAS CAREFULLY READ ALL OF THE PROVISIONS OF\nTHIS AGREEMENT AND THAT EMPLOYEE UNDERSTANDS AND WILL FULLY AND FAITHFULLY COMPLIES WITH SUCH\nPROVISIONS.\nEMPLOYEE\n[Name]\nSchedule A\nThe following “Inventions,” as that term is defined in the Agreement to which this Attachment affixed, if any, are claimed by Employee:	EX-10.25 17 d567323dex1025.htm EX-10.25\nExhibit 10.25\nCONFIDENTIALITY, NON-COMPETE AND\nASSIGNMENT OF INVENTIONS AGREEMENT\nThis CONFIDENTIALITY, NON-COMPETE AND ASSIGNMENT OF INVENTIONS AGREEMENT ("Agreement"') is dated as of the\nday of\n20_ by and between\n(the "Employee") and Vapotherm, Inc., a Maryland corporation.\nIn exchange for being retained as a Employee to perform services for the Company (hereinafter referred to as the "engagement") by Vapotherm,\nInc. (the "Company."). Employee hereby agrees effective as of\nas follows:\n1. Assignment of Inventions. Without further compensation, Employee hereby agrees promptly to disclose to the Company, and Employee\nhereby assigns and agrees to assign to the Company or its designee, Employee's entire right, title, and interest in and to all Inventions (as defined herein)\nwhich: (a) pertain to any line of business activity of the Company, (b) are aided by the use of time, equipment, supplies, materials, facilities, services, or\ntrade secrets of the Company, or (c) relate to any of Employee's work during engagement. Employee hereby waives and quitclaims to the Company any\nand all claims of any nature whatsoever that Employee now or hereafter may have for infringement for any Inventions so assigned to the Company. If in\nthe course of engagement, Employee uses in or incorporates into or permits the Company to use in or incorporate into a released or unreleased Company\nproduct, program, process, or machine, an invention owned by Employee or in which Employee has an interest, the Company is hereby granted and\nshall have an exclusive royalty-free, irrevocable, worldwide license to make, have made, use, and sell that invention without restriction as to the extent\nof Employee's ownership or interest. No rights are hereby conveyed in Inventions, if any, made by Employee prior to engagement which are identified\non Schedule A hereto or in Inventions to which the Company enjoys no claim under applicable law.\n2. Obtaining and Enforcing Inventions. Employee agrees to perform, at Company expense, during and after engagement, all acts deemed\nnecessary or desirable by the Company to permit and assist Company, in obtaining and enforcing the full benefits, enjoyment, rights and title throughout\nthe world in the Inventions hereby assigned to the Company. If Employee does not cooperate fully in signing documents, Employee hereby authorizes\nCompany to execute on Employee's behalf as Employee's attorney in fact for the limited purpose of perfecting Company's rights in such Inventions, as\nif Employee had signed the same myself, any and all documents which are reasonably necessary to perfect Company's rights in such Inventions.\n3. Additional Covenants of Employee: Employee agrees as follows:\n(a) Non-Disclosure. To hold in confidence and not directly or indirectly to use or disclose, either during or after termination of engagement, any\nConfidential Information (as defined herein) Employee obtains or creates during engagement, except to the extent authorized by the Company.\nEmployee further agrees to not disclose any Confidential Information to anyone inside the Company except on a "need-to-know" basis. Employee\nagrees not to make copies of such Confidential Information except as authorized by the Company. Upon termination of engagement or upon an earlier\nrequest of the Company, Employee will return or deliver to the Company all tangible forms of such Confidential Information in Employee's possession\nor control.\n(b) Non-Solicitation of Employees. That during the period of engagement and for a period of one year thereafter, Employee will not solicit or\nencourage any employee of the Company to terminate his or her employment with the Company or to accept employment with any subsequent employer\nwith whom Employee is affiliated in any way.\n(c) Non-Competition. That during the period of engagement and for a period of one year thereafter, Employee will not accept another engagement\nor\nengage\nin\nactivities\ndirectly\nor\nindirectly\ncompetitive\nwith\nproducts\n(including\nactual\nor\ndemonstrably\nanticipated\nresearch\nor\ndevelopment)\non\nwhich\nEmployee worked or about which Employee learned proprietary or confidential or trade secret information during engagement. Employee shall not use\nat any time during the period of engagement or for any time afterwards, any proprietary or confidential or trade secret information which Employee\nlearned during engagement, in a manner which would be injurious to Company.\n4. Inventions and Confidential Information. As used in this Agreement, the term "Inventions" includes, without limitation, electronic designs,\nhardware and software creations, discoveries, formulae, processes, manufacturing techniques, trade secrets, inventions, improvements, concepts,\ntechniques, methods, systems, designs, circuits, cost data, computer programs, development or experimental work, work in progress, ideas and\ncopyrightable or patentable works, including all rights to obtain, register, perfect and enforce these proprietary interests. The term "Confidential\nInformation" means (a) information pertaining to any aspect of the Company's business which is not known by actual or potential competitors of the\nCompany or (b) proprietary information of the Company or its customers or suppliers, whether of a technical nature or otherwise, which the Company\n(or its suppliers or vendors) takes reasonable measures to protect against unauthorized disclosure to or use by third parties, including, without limitation,\ntechnical, financial, marketing, manufacturing, or distribution information, customer or client lists and names; addresses and phone numbers of\nCompany's customers, clients, and employees; or other technical or business information or trade secrets of the Company.\n5. Equitable Relief. Employee acknowledges that any violation of this Agreement by Employee will cause irreparable injury to the Company, and\nthe Company shall be entitled to extraordinary relief in court. Employee agrees that if court proceedings are required to enforce any provision of this\nAgreement, the prevailing party shall be entitled to an award of reasonable and necessary expenses of litigation.\n6. Modifications. This Agreement may be amended, modified and supplemented only by written agreement of the parties hereto.\n7.\nNo Waiver. No failure or delay on the part of any party in exercising any right, power or remedy hereunder shall operate as a waiver thereof;\nnor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other\nright, power or remedy hereunder.\n-2-\n8. Validity. In the event that any provision hereof would, under applicable law, be invalid or unenforceable, such provision shall, to the extent\npermitted under applicable law, be construed by modifying or limiting it so as to be valid and enforceable to the maximum extent possible under\napplicable law. The provisions of this Agreement are severable, and in the event that any provision hereof should be held invalid or unenforceable in any\nrespect, it shall not invalidate, render unenforceable or otherwise affect any other provision hereof.\n9.\nSuccessors and Assigns. This Agreement shall inure to the benefit of the successors and assigns of the Company. The Company may assign its\nrights under this Agreement in connection with any sale, transfer of other disposition of all or a substantial portion of the stock or assets of the Company.\nEmployee may not assign Employee's duties or obligations hereunder.\n10. Miscellaneous. This Agreement and the rights and obligations of the parties relating to the subject matter of this Agreement, shall be governed\nby and construed in accordance with the internal laws of the State of Maryland, without regard to the principles of conflicts of laws thereof. This\nAgreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all other prior agreements and\nunderstandings, both written and oral, between the parties with respect to the subject matter hereof. This Agreement may be executed in one or more\ncounterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same agreement. The descriptive\nheadings herein are inserted for convenience of reference only.\n-3-\nIN WITNESS WHEREOF, the parties have executed this Consulting Agreement as of the date and year first above written.\nVapotherm, Inc.\nBy:\nName:\nTitle: President\nEMPLOYEE\n[Name]\nEMPLOYEE HEREBY CERTIFIES AND ACKNOWLEDGES THAT EMPLOYEE HAS CAREFULLY READ ALL OF THE PROVISIONS OF\nTHIS AGREEMENT AND THAT EMPLOYEE UNDERSTANDS AND WILL FULLY AND FAITHFULLY COMPLIES WITH SUCH\nPROVISIONS.\nEMPLOYEE\n[Name]\nSchedule A\nThe following "Inventions," as that term is defined in the Agreement to which this Attachment affixed, if any, are claimed by Employee:	EX-10.25 17 d567323dex1025.htm EX-10.25\nExhibit 10.25\nCONFIDENTIALITY, NON-COMPETE AND\nASSIGNMENT OF INVENTIONS AGREEMENT\nThis CONFIDENTIALITY, NON-COMPETE AND ASSIGNMENT OF INVENTIONS AGREEMENT (“Agreement’’) is dated as of the ____\nday of __________, 20__, by and between __________ (the “Employee”) and Vapotherm, Inc., a Maryland corporation.\nIn exchange for being retained as a Employee to perform services for the Company (hereinafter referred to as the “engagement”) by Vapotherm,\nInc. (the “Company”). Employee hereby agrees effective as of _________,\n____\nas follows:\n1. Assignment of Inventions. Without further compensation, Employee hereby agrees promptly to disclose to the Company, and Employee\nhereby assigns and agrees to assign to the Company or its designee, Employee’s entire right, title, and interest in and to all Inventions (as defined herein)\nwhich: (a) pertain to any line of business activity of the Company, (b) are aided by the use of time, equipment, supplies, materials, facilities, services, or\ntrade secrets of the Company, or (c) relate to any of Employee’s work during engagement. Employee hereby waives and quitclaims to the Company any\nand all claims of any nature whatsoever that Employee now or hereafter may have for infringement for any Inventions so assigned to the Company. If in\nthe course of engagement, Employee uses in or incorporates into or permits the Company to use in or incorporate into a released or unreleased Company\nproduct, program, process, or machine, an invention owned by Employee or in which Employee has an interest, the Company is hereby granted and\nshall have an exclusive royalty-free, irrevocable, worldwide license to make, have made, use, and sell that invention without restriction as to the extent\nof Employee’s ownership or interest. No rights are hereby conveyed in Inventions, if any, made by Employee prior to engagement which are identified\non Schedule A hereto or in Inventions to which the Company enjoys no claim under applicable law.\n2. Obtaining and Enforcing Inventions. Employee agrees to perform, at Company expense, during and after engagement, all acts deemed\nnecessary or desirable by the Company to permit and assist Company, in obtaining and enforcing the full benefits, enjoyment, rights and title throughout\nthe world in the Inventions hereby assigned to the Company. If Employee does not cooperate fully in signing documents, Employee hereby authorizes\nCompany to execute on Employee’s behalf as Employee’s attorney in fact for the limited purpose of perfecting Company’s rights in such Inventions, as\nif Employee had signed the same myself, any and all documents which are reasonably necessary to perfect Company’s rights in such Inventions.\n3. Additional Covenants of Employee: Employee agrees as follows:\n(a) Non-Disclosure. To hold in confidence and not directly or indirectly to use or disclose, either during or after termination of engagement, any\nConfidential Information (as defined herein) Employee obtains or creates during engagement, except to the extent authorized by the Company.\nEmployee further agrees to not disclose any Confidential Information to anyone inside the Company except on a “need-to-know” basis. Employee\nagrees not to make copies of such Confidential Information except as authorized by the Company. Upon termination of engagement or upon an earlier\nrequest of the Company, Employee will return or deliver to the Company all tangible forms of such Confidential Information in Employee’s possession\nor control.\n(b) Non-Solicitation of Employees. That during the period of engagement and for a period of one year thereafter, Employee will not solicit or\nencourage any employee of the Company to terminate his or her employment with the Company or to accept employment with any subsequent employer\nwith whom Employee is affiliated in any way.\n(c) Non-Competition. That during the period of engagement and for a period of one year thereafter, Employee will not accept another engagement\nor engage in activities directly or indirectly competitive with products (including actual or demonstrably anticipated research or development) on which\nEmployee worked or about which Employee learned proprietary or confidential or trade secret information during engagement. Employee shall not use\nat any time during the period of engagement or for any time afterwards, any proprietary or confidential or trade secret information which Employee\nlearned during engagement, in a manner which would be injurious to Company.\n4. Inventions and Confidential Information. As used in this Agreement, the term “Inventions” includes, without limitation, electronic designs,\nhardware and software creations, discoveries, formulae, processes, manufacturing techniques, trade secrets, inventions, improvements, concepts,\ntechniques, methods, systems, designs, circuits, cost data, computer programs, development or experimental work, work in progress, ideas and\ncopyrightable or patentable works, including all rights to obtain, register, perfect and enforce these proprietary interests. The term “Confidential\nInformation” means (a) information pertaining to any aspect of the Company’s business which is not known by actual or potential competitors of the\nCompany or (b) proprietary information of the Company or its customers or suppliers, whether of a technical nature or otherwise, which the Company\n(or its suppliers or vendors) takes reasonable measures to protect against unauthorized disclosure to or use by third parties, including, without limitation,\ntechnical, financial, marketing, manufacturing, or distribution information, customer or client lists and names; addresses and phone numbers of\nCompany’s customers, clients, and employees; or other technical or business information or trade secrets of the Company.\n5. Equitable Relief. Employee acknowledges that any violation of this Agreement by Employee will cause irreparable injury to the Company, and\nthe Company shall be entitled to extraordinary relief in court. Employee agrees that if court proceedings are required to enforce any provision of this\nAgreement, the prevailing party shall be entitled to an award of reasonable and necessary expenses of litigation.\n6. Modifications. This Agreement may be amended, modified and supplemented only by written agreement of the parties hereto.\n7. No Waiver. No failure or delay on the part of any party in exercising any right, power or remedy hereunder shall operate as a waiver thereof;\nnor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other\nright, power or remedy hereunder.\n-2-\n8. Validity. In the event that any provision hereof would, under applicable law, be invalid or unenforceable, such provision shall, to the extent\npermitted under applicable law, be construed by modifying or limiting it so as to be valid and enforceable to the maximum extent possible under\napplicable law. The provisions of this Agreement are severable, and in the event that any provision hereof should be held invalid or unenforceable in any\nrespect, it shall not invalidate, render unenforceable or otherwise affect any other provision hereof.\n9. Successors and Assigns. This Agreement shall inure to the benefit of the successors and assigns of the Company. The Company may assign its\nrights under this Agreement in connection with any sale, transfer of other disposition of all or a substantial portion of the stock or assets of the Company.\nEmployee may not assign Employee’s duties or obligations hereunder.\n10. Miscellaneous. This Agreement and the rights and obligations of the parties relating to the subject matter of this Agreement, shall be governed\nby and construed in accordance with the internal laws of the State of Maryland, without regard to the principles of conflicts of laws thereof. This\nAgreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all other prior agreements and\nunderstandings, both written and oral, between the parties with respect to the subject matter hereof. This Agreement may be executed in one or more\ncounterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same agreement. The descriptive\nheadings herein are inserted for convenience of reference only.\n-3-\nIN WITNESS WHEREOF, the parties have executed this Consulting Agreement as of the date and year first above written.\nVapotherm, Inc.\nBy:\nName:\nTitle: President\nEMPLOYEE\n[Name]\nEMPLOYEE HEREBY CERTIFIES AND ACKNOWLEDGES THAT EMPLOYEE HAS CAREFULLY READ ALL OF THE PROVISIONS OF\nTHIS AGREEMENT AND THAT EMPLOYEE UNDERSTANDS AND WILL FULLY AND FAITHFULLY COMPLIES WITH SUCH\nPROVISIONS.\nEMPLOYEE\n[Name]\nSchedule A\nThe following “Inventions,’’ as that term is defined in the Agreement to which this Attachment affixed, if any, are claimed by Employee:
+f219da8204a589598fff0b73b13c751d.pdf	effective_date jurisdiction party term	EX-99.1 2 d739574dex991.htm EXHIBIT 99.1\nEXHIBIT 99_1\nMUTUAL NONDISCLOSURE AGREEMENT\nZIPREALTY, INC.\nTHIS AGREEMENT is made as of June 3, 2014 by and between ZipRealty, Inc., a Delaware corporation (“ZipRealty”), and Osmium\nPartners, LLC (“Company”) (the “Agreement”).\n1. Permitted Purpose. ZipRealty and Company wish to explore a potential business opportunity under which each party (the “disclosing\nparty”) may disclose its Confidential Information to the other party (the “receiving party”) solely for the purpose of that potential business\nopportunity (the “Permitted Purpose”).\n2. Definition of Confidential Information. “Confidential Information” means any information, technical data, trade secrets or know-how\nof the disclosing party or its customers, vendors, business partners or investors that is provided to the recipient party by or on behalf of the\ndisclosing party, either directly or indirectly, whether in writing, electronically, orally or by observation, including, but not limited to, research,\nproducts, services, product plans, clients, client lists, lead lists, markets, marketing, expansion plans, databases, software, developments,\ninventions, processes, technology, maskworks, designs, drawings, engineering, hardware configuration information, finances, financial results or\nother business information, in each case which the disclosing party considers to be confidential or proprietary. Confidential Information does not\ninclude information, technical data, trade secrets or know-how that: (i) is in the possession of, or becomes available to, the receiving party on a\nnon-confidential basis, as shown by the receiving party’s files and records, and such information was received from a source not known by the\nreceiving party to be bound by any obligation not to disclose the information, (ii) prior or after the time of disclosure becomes part of the public\nknowledge or literature, not as a result of any inaction or action of the receiving party, (iii) is independently developed or derived by the\nreceiving party without reference to, or the use of, any Confidential Information, or (iv) is approved for release by the disclosing party in writing.\n3. Non-Disclosure of Confidential Information. ZipRealty and Company agree not to use the Confidential Information disclosed to it by\nthe other party for any purpose except the Permitted Purpose. Neither party will disclose any Confidential Information of the other party to third\nparties except those directors, officers, partners, employees, consultants and agents (collectively, “Representatives”) who need to have the\ninformation in order to carry out the Permitted Purpose. The Representatives shall be informed of the confidential nature of the Confidential\nInformation and shall agree not to disclose any of the Confidential Information to any other party. In any event, each party will be liable for any\nbreach of this Agreement by any of its Representatives. Each party agrees that it will take all reasonable measures to protect the secrecy of and\navoid disclosure or nonpermitted use of Confidential Information of the other party in order to prevent it from falling into the public domain or\nthe possession of persons other than those persons authorized hereunder to have any such information, which measures will include the highest\ndegree of care that either party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party\nin writing of any misuse or misappropriation of such Confidential Information that may come to its attention.\n4. Disclosure Required by Law. In the event that the receiving party or any of its Representatives is requested or required by legal process\nto disclose any of the Confidential Information of the disclosing party, the receiving party will give prompt written notice to the disclosing party\nso that the disclosing party may seek, at its expense, a protective order or other appropriate relief. In the event that such protective order is not\nobtained, the receiving party or its Representatives will disclose only that portion of the Confidential Information that, in the advice of its\ncounsel, it is legally required to disclose.\n5. Return of Materials. Any materials or documents that have been furnished by or on behalf of the disclosing party to the receiving party\nor its Representatives will be returned to the disclosing party, and all copies of such documentation will be destroyed as far as technically\nfeasible, promptly upon request (at the disclosing party’s cost). Notwithstanding the foregoing, the Company may retain one (1) copy of\nelectronically stored information or other written materials as required by applicable law and regulation.\n6. Information Provided As Is. Each disclosing party acknowledges that it has attempted in good faith to provide accurate information to\nthe receiving party. Notwithstanding that attempt, the disclosing party makes no representations or warranties, express or implied, to the\nreceiving party regarding, and the receiving party may not rely on, the completeness or accuracy of any information provided to the receiving\nparty.\n7. No License Granted. Nothing in this Agreement is intended to grant any rights to either party or any of its Representatives under any\npatent, copyright, trade secret or other intellectual property right, nor does this Agreement grant either party or any of its Representatives any\nrights in or to the other party’s information, except the limited right to use such information solely for the Permitted Purpose.\n8. No Trading on Inside Information. Company is aware, and will advise its Representatives who are provided any Confidential\nInformation of ZipRealty, of the restrictions imposed by federal securities laws on the purchase or sale of ZipRealty’s securities by any person\nwho has received material non-public information from ZipRealty or its Representatives and on the communication of such information to any\nother person when it is reasonably foreseeable that such other person may purchase or sell ZipRealty’s securities while in possession of such\ninformation.\n9. Public Company Standstill. Unless previously approved by the Board of Directors of the disclosing party, for a period of six months\nfrom the date of this Agreement, each receiving party will not, and will instruct and use its commercially reasonable efforts to cause its\nRepresentatives not to, directly or indirectly:\n(a) inquire about, announce or make any offer or proposal (including, without limitation, any offer or proposal to the stockholders\nof the disclosing party) concerning an Acquisition Transaction (as defined below);\n-2-\n(b) knowingly encourage, solicit or discuss with, or provide any Confidential Information of the disclosing party to, any person or\nentity with respect to any inquiry or announcement regarding or the making of any offer or proposal concerning any Acquisition Transaction;\n(c) otherwise knowingly facilitate or participate in any effort or attempt to make or implement any Acquisition Transaction;\n(d) participate in any “solicitation” of “proxies” to vote (as such terms are used in the rules and regulations of the Securities and\nExchange Commission), or seek to advise or influence any person or entity with respect to the voting of, any securities of the disclosing party;\n(e) otherwise act or seek to control or influence the management, Board of Directors or other policies of the disclosing party; or\n(f) request the disclosing party or any of its Representatives to amend or waive any provisions of this paragraph 9.\nAs used in this paragraph 9, “Acquisition Transaction” means any acquisition or exchange of all or any material portion of the assets of, or 15%\nor more of the equity interest in, the disclosing party or any of its subsidiaries (by purchase on the Nasdaq Stock Market or New York Stock\nExchange, as applicable, direct purchase from the other party, tender or exchange offer or otherwise) or any business combination, merger or\nsimilar transaction (including an exchange of stock or assets) with or involving the disclosing party or any it its subsidiaries.\n10. No Recruitment of Other Party’s Employees. Each party will not, and will instruct and use its commercially reasonable efforts to\ncause its Representatives not to, directly or indirectly, recruit or solicit for hire any of the other party’s employees, or aid anyone else in recruiting\nor soliciting for hire any of the other party’s employees, or induce or otherwise encourage any of the other party’s employees to leave their\nemployment with the other party, provided that general, non-targeted advertisements or solicitations through independent employment recruiters\nwill not be deemed to breach the foregoing provisions of this sentence.\n11. No Conflicting Obligations. Each disclosing party hereby represents and warrants that it may rightfully disclose the Confidential\nInformation to the receiving party, and to enter into the potential business opportunity being explored, in each case without violating any\ncontractual, legal, fiduciary or other obligation to any person.\n12. Entire Agreement. This Agreement sets forth the entire understanding of the parties concerning the matters set forth herein. Except as\nset forth in this Agreement, neither party will be committed in any way concerning the potential business opportunity being explored unless and\nuntil a definitive written agreement with respect thereto is duly authorized and executed by the appropriate officers of both parties.\n13. Governing Law and Jurisdiction. This Agreement will be governed by and construed and enforced in accordance with the internal\nlaws of the State of California without regard to its\n-3-\nconflict-of-laws principles. The federal and state courts within the State of California will have exclusive jurisdiction to adjudicate any dispute\narising out of this Agreement. Each party irrevocably consents to the personal jurisdiction of such courts and expressly waives any objection to\nsuch jurisdiction based on inconvenient forum or otherwise.\n14. Remedies. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party and the other\nparty’s business and expressly agrees that monetary damages may be inadequate to compensate the other party for any breach by either party of\nany covenants and agreements set forth herein. Accordingly, each party agrees and acknowledges that any such violation or threatened violation\nmay cause irreparable injury to the other party and that, in addition to any other remedies that may be available, in law, in equity or otherwise,\nthe other party will be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach,\nwithout the necessity of proving actual damages.\n15. Miscellaneous. This Agreement will be binding upon and for the benefit of the undersigned parties, their successors and assigns.\nFailure to enforce any provision of this Agreement will not constitute a waiver of any term hereof. This Agreement may not be amended except\nby a writing signed by both ZipRealty and Company. Each party may sign any number of identical counterparts of this Agreement with the same\neffect as if the parties signed the same document and all of which shall be considered one and the same agreement. A copy of this Agreement\nsigned by a party and delivered by facsimile (or email) transmission to the other party shall have the same effect as the delivery of an original of\nthis Agreement containing the original signature of such party.\n16. Term. The foregoing commitments in this Agreement will survive any termination of discussions between the parties, and will continue\nfor a period of one (1) year following the date of this Agreement, except to the extent explicitly terminated in writing by both ZipRealty and\nCompany.\nZIPREALTY, INC.\nOSMIUM PARTNERS, LLC\nBy: /s/ Lanny Baker\nBy: /s/ John H. Lewis\nPrint Name: Lanny Baker\nPrint Name: John H. Lewis\nPrint Title: President & CEO\nPrint Title: Managing Partner\n-4-	EX-99.1 2 d739574dex991.htm EXHIBIT 99.1\nEXHIBIT 99_1\nMUTUAL NONDISCLOSURE AGREEMENT\nZIPREALTY, INC.\nTHIS AGREEMENT is made as of June 3, 2014 by and between ZipRealty, Inc., a Delaware corporation (“ZipRealty”), and Osmium\nPartners, LL.C (“Company”) (the “Agreement”).\n1. Permitted Purpose. ZipRealty and Company wish to explore a potential business opportunity under which each party (the “disclosing\nparty”) may disclose its Confidential Information to the other party (the “receiving party”) solely for the purpose of that potential business\nopportunity (the “Permitted Purpose™).\n \n2. Definition of Confidential Information. “Confidential Information” means any information, technical data, trade secrets or know-how\nof the disclosing party or its customers, vendors, business partners or investors that is provided to the recipient party by or on behalf of the\ndisclosing party, either directly or indirectly, whether in writing, electronically, orally or by observation, including, but not limited to, research,\nproducts, services, product plans, clients, client lists, lead lists, markets, marketing, expansion plans, databases, software, developments,\ninventions, processes, technology, maskworks, designs, drawings, engineering, hardware configuration information, finances, financial results or\nother business information, in each case which the disclosing party considers to be confidential or proprietary. Confidential Information does not\ninclude information, technical data, trade secrets or know-how that: (i) is in the possession of, or becomes available to, the receiving party on a\nnon-confidential basis, as shown by the receiving party’s files and records, and such information was received from a source not known by the\nreceiving party to be bound by any obligation not to disclose the information, (ii) prior or after the time of disclosure becomes part of the public\nknowledge or literature, not as a result of any inaction or action of the receiving party, (iii) is independently developed or derived by the\nreceiving party without reference to, or the use of, any Confidential Information, or (iv) is approved for release by the disclosing party in writing.\n3. Non-Disclosure of Confidential Information. ZipRealty and Company agree not to use the Confidential Information disclosed to it by\nthe other party for any purpose except the Permitted Purpose. Neither party will disclose any Confidential Information of the other party to third\nparties except those directors, officers, partners, employees, consultants and agents (collectively, “Representatives”) who need to have the\ninformation in order to carry out the Permitted Purpose. The Representatives shall be informed of the confidential nature of the Confidential\nInformation and shall agree not to disclose any of the Confidential Information to any other party. In any event, each party will be liable for any\nbreach of this Agreement by any of its Representatives. Each party agrees that it will take all reasonable measures to protect the secrecy of and\navoid disclosure or nonpermitted use of Confidential Information of the other party in order to prevent it from falling into the public domain or\nthe possession of persons other than those persons authorized hereunder to have any such information, which measures will include the highest\ndegree of care that either party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party\nin writing of any misuse or misappropriation of such Confidential Information that may come to its attention.\n4. Disclosure Required by Law. In the event that the receiving party or any of its Representatives is requested or required by legal process\nto disclose any of the Confidential Information of the disclosing party, the receiving party will give prompt written notice to the disclosing party\nso that the disclosing party may seek, at its expense, a protective order or other appropriate relief. In the event that such protective order is not\nobtained, the receiving party or its Representatives will disclose only that portion of the Confidential Information that, in the advice of its\ncounsel, it is legally required to disclose.\n5. Return of Materials. Any materials or documents that have been furnished by or on behalf of the disclosing party to the receiving party\nor its Representatives will be returned to the disclosing party, and all copies of such documentation will be destroyed as far as technically\nfeasible, promptly upon request (at the disclosing party’s cost). Notwithstanding the foregoing, the Company may retain one (1) copy of\nelectronically stored information or other written materials as required by applicable law and regulation.\n6. Information Provided As Is. Each disclosing party acknowledges that it has attempted in good faith to provide accurate information to\nthe receiving party. Notwithstanding that attempt, the disclosing party makes no representations or warranties, express or implied, to the\nreceiving party regarding, and the receiving party may not rely on, the completeness or accuracy of any information provided to the receiving\nparty.\n7. No License Granted. Nothing in this Agreement is intended to grant any rights to either party or any of its Representatives under any\npatent, copyright, trade secret or other intellectual property right, nor does this Agreement grant either party or any of its Representatives any\nrights in or to the other party’s information, except the limited right to use such information solely for the Permitted Purpose.\n8. No Trading on Inside Information. Company is aware, and will advise its Representatives who are provided any Confidential\nInformation of ZipRealty, of the restrictions imposed by federal securities laws on the purchase or sale of ZipRealty’s securities by any person\nwho has received material non-public information from ZipRealty or its Representatives and on the communication of such information to any\nother person when it is reasonably foreseeable that such other person may purchase or sell ZipRealty’s securities while in possession of such\ninformation.\n9. Public Company Standstill. Unless previously approved by the Board of Directors of the disclosing party, for a period of six months\nfrom the date of this Agreement, each receiving party will not, and will instruct and use its commercially reasonable efforts to cause its\nRepresentatives not to, directly or indirectly:\n(a) inquire about, announce or make any offer or proposal (including, without limitation, any offer or proposal to the stockholders\nof the disclosing party) concerning an Acquisition Transaction (as defined below);\n-\n(b) knowingly encourage, solicit or discuss with, or provide any Confidential Information of the disclosing party to, any person or\nentity with respect to any inquiry or announcement regarding or the making of any offer or proposal concerning any Acquisition Transaction;\n(c) otherwise knowingly facilitate or participate in any effort or attempt to make or implement any Acquisition Transaction;\n(d) participate in any “solicitation” of “proxies” to vote (as such terms are used in the rules and regulations of the Securities and\nExchange Commission), or seek to advise or influence any person or entity with respect to the voting of, any securities of the disclosing party;\n(e) otherwise act or seek to control or influence the management, Board of Directors or other policies of the disclosing party; or\n(f) request the disclosing party or any of its Representatives to amend or waive any provisions of this paragraph 9.\nAs used in this paragraph 9, “Acquisition Transaction” means any acquisition or exchange of all or any material portion of the assets of, or 15%\nor more of the equity interest in, the disclosing party or any of its subsidiaries (by purchase on the Nasdaq Stock Market or New York Stock\nExchange, as applicable, direct purchase from the other party, tender or exchange offer or otherwise) or any business combination, merger or\nsimilar transaction (including an exchange of stock or assets) with or involving the disclosing party or any it its subsidiaries.\n10. No Recruitment of Other Party’s Employees. Each party will not, and will instruct and use its commercially reasonable efforts to\ncause its Representatives not to, directly or indirectly, recruit or solicit for hire any of the other party’s employees, or aid anyone else in recruiting\nor soliciting for hire any of the other party’s employees, or induce or otherwise encourage any of the other party’s employees to leave their\nemployment with the other party, provided that general, non-targeted advertisements or solicitations through independent employment recruiters\nwill not be deemed to breach the foregoing provisions of this sentence.\n11. No Conflicting Obligations. Each disclosing party hereby represents and warrants that it may rightfully disclose the Confidential\nInformation to the receiving party, and to enter into the potential business opportunity being explored, in each case without violating any\ncontractual, legal, fiduciary or other obligation to any person.\n12. Entire Agreement. This Agreement sets forth the entire understanding of the parties concerning the matters set forth herein. Except as\nset forth in this Agreement, neither party will be committed in any way concerning the potential business opportunity being explored unless and\nuntil a definitive written agreement with respect thereto is duly authorized and executed by the appropriate officers of both parties.\n13. Governing L.aw and Jurisdiction. This Agreement will be governed by and construed and enforced in accordance with the internal\nlaws of the State of California without regard to its\n_3-\nconflict-of-laws principles. The federal and state courts within the State of California will have exclusive jurisdiction to adjudicate any dispute\narising out of this Agreement. Each party irrevocably consents to the personal jurisdiction of such courts and expressly waives any objection to\nsuch jurisdiction based on inconvenient forum or otherwise.\n14. Remedies. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party and the other\nparty’s business and expressly agrees that monetary damages may be inadequate to compensate the other party for any breach by either party of\nany covenants and agreements set forth herein. Accordingly, each party agrees and acknowledges that any such violation or threatened violation\nmay cause irreparable injury to the other party and that, in addition to any other remedies that may be available, in law, in equity or otherwise,\nthe other party will be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach,\nwithout the necessity of proving actual damages.\n15. Miscellaneous. This Agreement will be binding upon and for the benefit of the undersigned parties, their successors and assigns.\nFailure to enforce any provision of this Agreement will not constitute a waiver of any term hereof. This Agreement may not be amended except\nby a writing signed by both ZipRealty and Company. Each party may sign any number of identical counterparts of this Agreement with the same\neffect as if the parties signed the same document and all of which shall be considered one and the same agreement. A copy of this Agreement\nsigned by a party and delivered by facsimile (or email) transmission to the other party shall have the same effect as the delivery of an original of\nthis Agreement containing the original signature of such party.\n16. Term. The foregoing commitments in this Agreement will survive any termination of discussions between the parties, and will continue\nfor a period of one (1) year following the date of this Agreement, except to the extent explicitly terminated in writing by both ZipRealty and\nCompany.\nZIPREALTY, INC. OSMIUM PARTNERS, LL.C\nBy: /s/ Lanny Baker By: /s/ John H. Lewis\nPrint Name: Lanny Baker Print Name: John H. Lewis\nPrint Title: President & CEO Print Title: Managing Partner	EX-99.1 2 d739574dex991.htm EXHIBIT 99.1\nEXHIBIT 99_1\nMUTUAL NONDISCLOSURE AGREEMENT\nZIPREALTY, INC.\nTHIS AGREEMENT is made as of June 3, 2014 by and between ZipRealty, Inc., a Delaware corporation ("ZipRealty."), and Osmium\nPartners, LLC ("Company.") (the "Agreement").\n1. Permitted Purpose. ZipRealty and Company wish to explore a potential business opportunity under which each party (the "disclosing\nparty.") may disclose its Confidential Information to the other party (the "receiving.party." solely for the purpose of that potential business\nopportunity (the "Permitted Purpose").\n2. Definition of Confidential Information. "Confidential Information" means any information, technical data, trade secrets or know-how\nof the disclosing party or its customers, vendors, business partners or investors that is provided to the recipient party by or on behalf of the\ndisclosing party, either directly or indirectly, whether in writing, electronically, orally or by observation, including, but not limited to, research,\nproducts, services, product plans, clients, client lists, lead lists, markets, marketing, expansion plans, databases, software, developments,\ninventions, processes, technology, maskworks, designs, drawings, engineering, hardware configuration information, finances, financial results or\nother business information, in each case which the disclosing party considers to be confidential or proprietary. Confidential Information\ndoes\nnot\ninclude information, technical data, trade secrets or know-how that: (i) is in the possession of, or becomes available to, the receiving party on a\nnon-confidential basis, as shown by the receiving party's files and records, and such information was received from a source not known by the\nreceiving party to be bound by any obligation not to disclose the information, (ii) prior or after the time of disclosure becomes part of the public\nknowledge or literature, not as a result of any inaction or action of the receiving party, (iii) is independently developed or derived by the\nreceiving party without reference to, or the use of, any Confidential Information, or (iv) is approved for release by the disclosing party in writing.\n3. Non-Disclosure of Confidential Information. ZipRealty and Company agree not to use the Confidential Information disclosed to it by\nthe other party for any purpose except the Permitted Purpose. Neither party will disclose any Confidential Information of the other party to third\nparties except those directors, officers, partners, employees, consultants and agents (collectively, "Representatives") who need to have the\ninformation in order to carry out the Permitted Purpose. The Representatives shall be informed of the confidential nature of the Confidential\nInformation and shall agree not to disclose any of the Confidential Information to any other party. In any event, each party will be liable for any\nbreach of this Agreement by any of its Representatives. Each party agrees that it will take all reasonable measures to protect the secrecy of and\navoid disclosure or nonpermitted use of Confidential Information of the other party in order to prevent it from falling into the public domain\nor\nthe possession of persons other than those persons authorized hereunder to have any such information, which measures will include the highest\ndegree of care that either party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party\nin writing of any misuse or misappropriation of such Confidential Information that may come to its attention.\n4. Disclosure Required by Law In the event that the receiving party or any of its Representatives is requested or required by legal process\nto disclose any of the Confidential Information of the disclosing party, the receiving party will give prompt written notice to the disclosing party\nso that the disclosing party may seek, at its expense, a protective order or other appropriate relief. In the event that such protective order is not\nobtained, the receiving party or its Representatives will disclose only that portion of the Confidential Information that, in the advice of its\ncounsel, it is legally required to disclose.\n5. Return of Materials. Any materials or documents that have been furnished by or on behalf of the disclosing party to the receiving party\nor its Representatives will be returned to the disclosing party, and all copies of such documentation will be destroyed as far as technically\nfeasible, promptly upon request (at the disclosing party's cost). Notwithstanding the foregoing, the Company may retain one (1) copy of\nelectronically stored information or other written materials as required by applicable law and regulation.\n6. Information Provided As Is. Each disclosing party acknowledges that it has attempted in good faith to provide accurate information to\nthe receiving party. Notwithstanding that attempt, the disclosing party makes no representations or warranties, express or implied, to the\nreceiving party regarding, and the receiving party may not rely on, the completeness or accuracy of any information provided to the receiving\nparty.\n7. No License Granted. Nothing in this Agreement is intended to grant any rights to either party or any of its Representatives under any\npatent, copyright, trade secret or other intellectual property right, nor does this Agreement grant either party or any of its Representatives any\nrights in or to the other party's information, except the limited right to use such information solely for the Permitted Purpose.\n8. No Trading on Inside Information. Company is aware, and will advise its Representatives who are provided any Confidential\nInformation of ZipRealty, of the restrictions imposed by federal securities laws on the purchase or sale of ZipRealty's securities by any person\nwho\nhas received material non-public information from ZipRealty or its Representatives and on the communication of such information to any\nother person when it is reasonably foreseeable that such other person may purchase or sell ZipRealty's securities while in possession of such\ninformation.\n9. Public Company Standstill. Unless previously approved by the Board of Directors of the disclosing party, for a period of six months\nfrom the date of this Agreement, each receiving party will not, and will instruct and use its commercially reasonable efforts to cause its\nRepresentatives not to, directly or indirectly:\n(a)\ninquire about, announce or make any offer or proposal (including, without limitation, any offer or proposal to the stockholders\nof the disclosing party) concerning an Acquisition Transaction (as defined below);\n-2-\n(b) knowingly encourage, solicit or discuss with, or provide any Confidential Information of the disclosing party to, any person or\nentity with respect to any inquiry or announcement regarding or the making of any offer or proposal concerning any Acquisition Transaction;\n(c) otherwise knowingly facilitate or participate in any effort or attempt to make or implement any Acquisition Transaction;\n(d) participate in any "solicitation" of "proxies" to vote (as such terms are used in the rules and regulations of the Securities and\nExchange Commission), or seek to advise or influence any person or entity with respect to the voting of, any securities of the disclosing party;\n(e) otherwise act or seek to control or influence the management, Board of Directors or other policies of the disclosing party; or\n(f)\nrequest the disclosing party or any of its Representatives to amend or waive any provisions of this paragraph\n9.\nAs used in this paragraph 9, "Acquisition Transaction" means any acquisition or exchange of all or any material portion of the assets of, or 15%\nor more of the equity interest in, the disclosing party or any of its subsidiaries (by purchase on the Nasdaq Stock Market or New York Stock\nExchange, as applicable, direct purchase from the other party, tender or exchange offer or otherwise) or any business combination, merger or\nsimilar transaction (including an exchange of stock or assets) with or involving the disclosing party or any it its subsidiaries.\n10. No Recruitment of Other Party's Employees. Each party will not, and will instruct and use its commercially reasonable efforts to\ncause its Representatives not to, directly or indirectly, recruit or solicit for hire any of the other party's employees, or aid anyone else in recruiting\nor soliciting for hire any of the other party's employees, or induce or otherwise encourage any of the other party's employees to leave their\nemployment with the other party, provided that general, non-targeted advertisements or solicitations through independent employment recruiters\nwill not be deemed to breach the foregoing provisions of this sentence.\n11. No Conflicting Obligations. Each disclosing party hereby represents and warrants that it may rightfully disclose the Confidential\nInformation to the receiving party, and to enter into the potential business opportunity being explored, in each case without violating any\ncontractual, legal, fiduciary or other obligation to any person.\n12. Entire Agreement. This Agreement sets forth the entire understanding of the parties concerning the matters set forth herein. Except as\nset forth in this Agreement, neither party will be committed in any way concerning the potential business opportunity being explored unless and\nuntil a definitive written agreement with respect thereto is duly authorized and executed by the appropriate officers of both parties.\n13. Governing Law and Jurisdiction. This Agreement will be governed by and construed and enforced in accordance with the internal\nlaws of the State of California without regard to its\n-3-\nconflict-of-laws principles. The federal and state courts within the State of California will have exclusive jurisdiction to adjudicate any dispute\narising out of this Agreement. Each party irrevocably consents to the personal jurisdiction of such courts and expressly waives any objection to\nsuch jurisdiction based on inconvenient forum or otherwise.\n14.\nRemedies. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party and the other\nparty's business and expressly agrees that monetary damages may be inadequate to compensate the other party for any breach by either party of\nany covenants and agreements set forth herein. Accordingly, each party agrees and acknowledges that any such violation or threatened violation\nmay cause irreparable injury to the other party and that, in addition to any other remedies that may be available, in law, in equity or otherwise,\nthe other party will be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach,\nwithout the necessity of proving actual damages.\n15. Miscellaneous. This Agreement will be binding upon and for the benefit of the undersigned parties, their successors and assigns.\nFailure to enforce any provision of this Agreement will not constitute a waiver of any term hereof. This Agreement may not be amended except\nby a writing signed by both ZipRealty and Company. Each party may sign any number of identical counterparts of this Agreement with the same\neffect as if the parties signed the same document and all of which shall be considered one and the same agreement. A copy of this Agreement\nsigned by a party and delivered by facsimile (or email) transmission to the other party shall have the same effect as the delivery of an original of\nthis Agreement containing the original signature of such party.\n16. Term. The foregoing commitments in this Agreement will survive any termination of discussions between the parties, and will continue\nfor a period of one (1) year following the date of this Agreement, except to the extent explicitly terminated in writing by both ZipRealty and\nCompany.\nZIPREALTY, INC.\nOSMIUM PARTNERS, LLC\nBy: /s/ Lanny Baker\nBy: /s/ John H. Lewis\nPrint Name: Lanny Baker\nPrint Name: John H. Lewis\nPrint Title: President & CEO\nPrint Title: Managing Partner\n-4-	EX-99.1 2 d739574dex991.htm EXHIBIT 99.1\nEXHIBIT 99_1\nMUTUAL NONDISCLOSURE AGREEMENT\nZIPREALTY, INC.\nTHIS AGREEMENT is made as of June 3, 2014 by and between ZipRealty, Inc., a Delaware corporation (“ZipRealty”), and Osmium\nPartners, LLC (“Company”) (the “Agreement”).\n1. Permitted Purpose. ZipRealty and Company wish to explore a potential business opportunity under which each party (the “disclosing\nparty”) may disclose its Confidential Information to the other party (the “receiving party”) solely for the purpose of that potential business\nopportunity (the “Permitted Purpose”).\n2. Definition of Confidential Information. “Confidential Information” means any information, technical data, trade secrets or know-how\nof the disclosing party or its customers, vendors, business partners or investors that is provided to the recipient party by or on behalf of the\ndisclosing party, either directly or indirectly, whether in writing, electronically, orally or by observation, including, but not limited to, research,\nproducts, services, product plans, clients, client lists, lead lists, markets, marketing, expansion plans, databases, software, developments,\ninventions, processes, technology, maskworks, designs, drawings, engineering, hardware configuration information, finances, financial results or\nother business information, in each case which the disclosing party considers to be confidential or proprietary. Confidential Information does not\ninclude information, technical data, trade secrets or know-how that: (i) is in the possession of, or becomes available to, the receiving party on a\nnon-confidential basis, as shown by the receiving party’s files and records, and such information was received from a source not known by the\nreceiving party to be bound by any obligation not to disclose the information, (ii) prior or after the time of disclosure becomes part of the public\nknowledge or literature, not as a result of any inaction or action of the receiving party, (iii) is independently developed or derived by the\nreceiving party without reference to, or the use of, any Confidential Information, or (iv) is approved for release by the disclosing party in writing.\n3. Non-Disclosure of Confidential Information. ZipRealty and Company agree not to use the Confidential Information disclosed to it by\nthe other party for any purpose except the Permitted Purpose. Neither party will disclose any Confidential Information of the other party to third\nparties except those directors, officers, partners, employees, consultants and agents (collectively, “Representatives”) who need to have the\ninformation in order to carry out the Permitted Purpose. The Representatives shall be informed of the confidential nature of the Confidential\nInformation and shall agree not to disclose any of the Confidential Information to any other party. In any event, each party will be liable for any\nbreach of this Agreement by any of its Representatives. Each party agrees that it will take all reasonable measures to protect the secrecy of and\navoid disclosure or nonpermitted use of Confidential Information of the other party in order to prevent it from falling into the public domain or\nthe possession of persons other than those persons authorized hereunder to have any such information, which measures will include the highest\ndegree of care that either party utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other party\nin writing of any misuse or misappropriation of such Confidential Information that may come to its attention.\n4. Disclosure Required by Law. In the event that the receiving party or any of its Representatives is requested or required by legal process\nto disclose any of the Confidential Information of the disclosing party, the receiving party will give prompt written notice to the disclosing party\nso that the disclosing party may seek, at its expense, a protective order or other appropriate relief. In the event that such protective order is not\nobtained, the receiving party or its Representatives will disclose only that portion of the Confidential Information that, in the advice of its\ncounsel, it is legally required to disclose.\n5. Return of Materials. Any materials or documents that have been furnished by or on behalf of the disclosing party to the receiving party\nor its Representatives will be returned to the disclosing party, and all copies of such documentation will be destroyed as far as technically\nfeasible, promptly upon request (at the disclosing party’s cost). Notwithstanding the foregoing, the Company may retain one (1) copy of\nelectronically stored information or other written materials as required by applicable law and regulation.\n6. Information Provided As Is. Each disclosing party acknowledges that it has attempted in good faith to provide accurate information to\nthe receiving party. Notwithstanding that attempt, the disclosing party makes no representations or warranties, express or implied, to the\nreceiving party regarding, and the receiving party may not rely on, the completeness or accuracy of any information provided to the receiving\nparty.\n7. No License Granted. Nothing in this Agreement is intended to grant any rights to either party or any of its Representatives under any\npatent, copyright, trade secret or other intellectual property right, nor does this Agreement grant either party or any of its Representatives any\nrights in or to the other party’s information, except the limited right to use such information solely for the Permitted Purpose.\n8. No Trading on Inside Information. Company is aware, and will advise its Representatives who are provided any Confidential\nInformation of ZipRealty, of the restrictions imposed by federal securities laws on the purchase or sale of ZipRealty’s securities by any person\nwho has received material non-public information from ZipRealty or its Representatives and on the communication of such information to any\nother person when it is reasonably foreseeable that such other person may purchase or sell ZipRealty’s securities while in possession of such\ninformation.\n9. Public Company Standstill. Unless previously approved by the Board of Directors of the disclosing party, for a period of six months\nfrom the date of this Agreement, each receiving party will not, and will instruct and use its commercially reasonable efforts to cause its\nRepresentatives not to, directly or indirectly:\n(a) inquire about, announce or make any offer or proposal (including, without limitation, any offer or proposal to the stockholders\nof the disclosing party) concerning an Acquisition Transaction (as defined below);\n-2-\n(b) knowingly encourage, solicit or discuss with, or provide any Confidential Information of the disclosing party to, any person or\nentity with respect to any inquiry or announcement regarding or the making of any offer or proposal concerning any Acquisition Transaction;\n(c) otherwise knowingly facilitate or participate in any effort or attempt to make or implement any Acquisition Transaction;\n(d) participate in any “solicitation” of “proxies” to vote (as such terms are used in the rules and regulations of the Securities and\nExchange Commission), or seek to advise or influence any person or entity with respect to the voting of, any securities of the disclosing party;\n(e) otherwise act or seek to control or influence the management, Board of Directors or other policies of the disclosing party; or\n(f) request the disclosing party or any of its Representatives to amend or waive any provisions of this paragraph 9.\nAs used in this paragraph 9, “Acquisition Transaction” means any acquisition or exchange of all or any material portion of the assets of, or 15%\nor more of the equity interest in, the disclosing party or any of its subsidiaries (by purchase on the Nasdaq Stock Market or New York Stock\nExchange, as applicable, direct purchase from the other party, tender or exchange offer or otherwise) or any business combination, merger or\nsimilar transaction (including an exchange of stock or assets) with or involving the disclosing party or any it its subsidiaries.\n10. No Recruitment of Other Party’s Employees. Each party will not, and will instruct and use its commercially reasonable efforts to\ncause its Representatives not to, directly or indirectly, recruit or solicit for hire any of the other party’s employees, or aid anyone else in recruiting\nor soliciting for hire any of the other party’s employees, or induce or otherwise encourage any of the other party’s employees to leave their\nemployment with the other party, provided that general, non-targeted advertisements or solicitations through independent employment recruiters\nwill not be deemed to breach the foregoing provisions of this sentence.\n11. No Conflicting Obligations. Each disclosing party hereby represents and warrants that it may rightfully disclose the Confidential\nInformation to the receiving party, and to enter into the potential business opportunity being explored, in each case without violating any\ncontractual, legal, fiduciary or other obligation to any person.\n12. Entire Agreement. This Agreement sets forth the entire understanding of the parties concerning the matters set forth herein. Except as\nset forth in this Agreement, neither party will be committed in any way concerning the potential business opportunity being explored unless and\nuntil a definitive written agreement with respect thereto is duly authorized and executed by the appropriate officers of both parties.\n13. Governing Law and Jurisdiction. This Agreement will be governed by and construed and enforced in accordance with the internal\nlaws of the State of California without regard to its\n-3-\nconflict-of-laws principles. The federal and state courts within the State of California will have exclusive jurisdiction to adjudicate any dispute\narising out of this Agreement. Each party irrevocably consents to the personal jurisdiction of such courts and expressly waives any objection to\nsuch jurisdiction based on inconvenient forum or otherwise.\n14. Remedies. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party and the other\nparty’s business and expressly agrees that monetary damages may be inadequate to compensate the other party for any breach by either party of\nany covenants and agreements set forth herein. Accordingly, each party agrees and acknowledges that any such violation or threatened violation\nmay cause irreparable injury to the other party and that, in addition to any other remedies that may be available, in law, in equity or otherwise,\nthe other party will be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach,\nwithout the necessity of proving actual damages.\n15. Miscellaneous. This Agreement will be binding upon and for the benefit of the undersigned parties, their successors and assigns.\nFailure to enforce any provision of this Agreement will not constitute a waiver of any term hereof. This Agreement may not be amended except\nby a writing signed by both ZipRealty and Company. Each party may sign any number of identical counterparts of this Agreement with the same\neffect as if the parties signed the same document and all of which shall be considered one and the same agreement. A copy of this Agreement\nsigned by a party and delivered by facsimile (or email) transmission to the other party shall have the same effect as the delivery of an original of\nthis Agreement containing the original signature of such party.\n16. Term. The foregoing commitments in this Agreement will survive any termination of discussions between the parties, and will continue\nfor a period of one (1) year following the date of this Agreement, except to the extent explicitly terminated in writing by both ZipRealty and\nCompany.\nZIPREALTY, INC.\nOSMIUM PARTNERS, LLC\nBy: /s/ Lanny Baker\nBy: /s/ John H. Lewis\nPrint Name: Lanny Baker\nPrint Name: John H. Lewis\nPrint Title: President & CEO\nPrint Title: Managing Partner\n-4-
+f3d887ab7d6bdcd947ddff2dd5630745.pdf	effective_date jurisdiction party term	EX-10 .3 6 confidentiality.htm CONFIDENTIALITY AGMT\nCONFIDENTIALITY, NON-COMPETE AND NON-SOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY, NON-COMPETE AND NON-SOLICITATION AGREEMENT (the “Agreement”), made as of February 9, 2015 (the\n“Effective Date”), by and between root9B Technologies, Inc., a Delaware corporation (“root9B”) and Dan Wachtler (“Wachtler”).\nWHEREAS, Wachtler was, prior to the date hereof, the President and CEO of IPSA International, Inc. a Nevada corporation (“IPSA”) that is, on the\ndate hereof, being merged with and into IPSA International Services, Inc. a Delaware corporation (“Merger Sub”), a wholly owned subsidiary of\nroot9B (the “Merger”), pursuant to that certain Merger Agreement dated February 6, 2015 by and among root9B, Merger Sub and IPSA (the\n“Merger Agreement”); and\nWHEREAS, as a condition of the Merger, Wachtler has agreed to enter into and comply with this Agreement, without which root9B would not\notherwise proceed.\nNOW THEREFORE, it is agreed by and between the parties hereto as follows:\n1.\nDefinitions.\n“Base Salary” has the meaning ascribed thereto in the Wachtler Employment Agreement.\n“Confidential Information” refers to information treated by IPSA and Merger Sub as confidential and proprietary that is not known by others and\ngives IPSA and Merger Sub a competitive advantage over other companies that do not have access to such information, whether conveyed orally or\nreduced to a tangible form in any medium, including information concerning the trade secrets, data, know-how, processes, techniques, operations,\nfuture plans, customers, business models, strategies, business methods and other proprietary information, as well as information about the\nemployees, customers, clients, investors and business partners of IPSA and Merger Sub. “Confidential Information” does not and will not include\ninformation that (a) is or becomes publicly available other than as a result of a disclosure by Wachtler or his representatives, (b) is or becomes\navailable to Wachtler on a non-confidential basis from a source which is not prohibited from disclosing such information under a legal, contractual\nor fiduciary obligation to IPSA and/or Merger Sub, (c) is approved for release by written authorization of root9B or Merger Sub, (d) is disclosed to\none or more third parties by root9B or Merger Sub without restriction, or (e) is independently developed by Wachtler without reference to or use of\nany Confidential Information.\n“Customer” means a specific department or division (whichever is smaller) of an entity or governmental agency to which IPSA provided services\nprior to the date hereof and to which Merger Sub provides services prior to the Termination Date.\n“Wachtler Employment Agreement” means an employment agreement of even date herewith between Merger Sub and Wachtler.\n2.\nAcknowledgments. Wachtler acknowledges that:\n(i)\nas a result of Wachtler’s employment by and ownership of IPSA, Wachtler has obtained Confidential Information of IPSA and Merger Sub,\nwhich Confidential Information has been developed and created by IPSA, at substantial expense and constitutes valuable proprietary assets of\nroot9B and Merger Sub;\n(ii)\nroot9B and Merger Sub will suffer substantial damage and irreparable harm which will be difficult to quantify if Wachtler breaches or\nthreatens to breach the terms of this Agreement;\n(iii)\nthe provisions of this Agreement are reasonable and necessary for the protection of root9B’s interest in Merger Sub; and\n(iv)\nthe provisions of this Agreement will not preclude Wachtler from other gainful employment.\n3.\nConfidentiality. Wachtler covenants and agrees not to disclose or use the Confidential Information for any purpose whatsoever\nother than appropriate use and disclosure in connection with his employment by Merger Sub or any successor thereto and his service as a root9B\nBoard of Directors observer and/or member.\n4.\nNon-Competition. Except as otherwise expressly provided herein, from the Effective Date until the date on which, inter alia, this\nSection 4 terminates as provided in the Employment Agreement, Wachtler will not directly or indirectly own, operate, manage, join, control,\nfinance or participate in the ownership, management, operation, control or financing of, or be connected as an officer, director, employee, partner,\nmanager, member, principal, agent, representative, consultant or employee, or otherwise, with, any firm, corporation, or other business, organization\nor person engaged in a business which is substantially similar to or in competition with any of the businesses carried on by Merger Sub, whether in\nthe United States or abroad. Nothing herein shall prohibit Wachtler (i) from purchasing or owning less than three percent (3%) of the publicly\ntraded securities of any corporation, provided that such ownership represents a passive investment and that Wachtler is not a controlling person of,\nor a member of\na group that controls, such corporation or (ii) owning, operating, managing, controlling or financing IPSA Security Services, LLC.\n5.\nNon-Solicitation. From the Effective Date until the date on which, inter alia, this Section 5 terminates as provided in the\nEmployment Agreement, Wachtler will not (i) solicit or attempt to solicit (or assist others to solicit) any Customer, that IPSA or Merger Sub, within\nthe one (1) year period preceding the date of such activity, provided services to; (ii) solicit or attempt to solicit (or assist others to solicit) any person\nwho, within the one (1) year period preceding the date of such activity, was an employee of root9B or its subsidiaries.\n6.\nBlue Pencil.\nIf, at any time, the provisions of this Agreement shall be determined to be invalid or unenforceable\nunder any applicable law, the court shall interpret them to extend only over the maximum period of time for which they may be enforceable and/or\nthe maximum geographical area as to which they may be enforceable and/or to the maximum extent in all other respects as to which they may be\nenforceable. All other provisions of this Agreement shall remain in full force and effect and shall be enforced as written.\n7.\nEnforcement.\nWachtler acknowledges and agrees that: (i) the purposes of the foregoing covenants are to protect\nroot9B and Merger Sub, and to prevent Wachtler from interfering with the business of root9B and Merger Sub, (ii) because of the nature of the\nbusiness in which root9B and Merger Sub are engaged and because of the nature of the work product and Confidential Information to which he has\naccess, it would be impractical and excessively difficult to determine the actual damages to root9B and Merger Sub in the event he materially\nbreached any of the covenants of this Agreement; and (iii) remedies at law (such as monetary damages) for any material breach of his obligations\nunder this Agreement would be inadequate. Wachtler therefore agrees and consents that if he commits any such breach of a covenant under this\nAgreement or threatens to commit any such breach, root9B and its affiliates shall have the right (in addition to, and not in lieu of, any other right or\nremedy that may be available to each of them) to temporary and permanent injunctive relief from a court of competent jurisdiction, without posting\nany bond or other security and without the necessity of proof of actual damage.\n8.\nMiscellaneous.\na.\nEntire Agreement, Amendment. All oral or written agreements or representations, express or implied, with respect to the subject matter of\nthis Agreement are set forth in this Agreement and the Wachtler Employment Agreement. No provisions of this Agreement may be modified,\nwaived, or discharged except by a written document signed by a duly authorized officer of root9B and Wachtler. A waiver of any conditions or\nprovisions of this Agreement in a given instance shall not be deemed a waiver of such conditions or provisions at any other time in the future.\nb.\nChoice of Law. The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the State of\nDelaware, except that conflicts of laws provisions shall not be applicable. The parties agree that exclusive jurisdiction shall be in the federal and\nstate courts sitting in the County of New Castle, State of Delaware and the parties consent to the jurisdiction of those courts.\nc.\nAttorneys’ Fees. In any action taken relating to the enforcement of this Agreement, the prevailing party shall be entitled to recover from the\nnon-prevailing party its reasonable attorneys’ fees, court costs and other expenses incurred in connection with such action.\nd.\nAssignment. root9B may assign this Agreement to any subsidiary of root9B and to any successor to substantially all the business and\nassets of root9B or Merger Sub. Wachtler shall not assign this Agreement.\ne.\nCounterparts. This Agreement may be executed in one or more counterparts, including copies signed and delivered via electronic media,\neach of which shall be deemed to be an original but all of which together shall constitute the same instrument.\n[signatures on following page]\nIN WITNESS WHEREOF, the parties have signed this Agreement as of the Effective Date.\nroot9B Technologies, Inc.\nBy: /s/ Brian King\nBrian King, COO\n/s/ Dan Wachtler\nDan Wachtler, Individually	EX-10.3 6 confidentiality.htm CONFIDENTIALITY AGMT\nCONFIDENTIALITY, NON-COMPETE AND NON-SOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY, NON-COMPETE AND NON-SOLICITATION AGREEMENT (the “Agreement”), made as of February 9, 2015 (the\n“Effective Date”), by and between root9B Technologies, Inc., a Delaware corporation (“root9B”) and Dan Wachtler (“Wachtler”).\nWHEREAS, Wachtler was, prior to the date hereof, the President and CEO of IPSA International, Inc. a Nevada corporation (“IPSA”) that is, on the\ndate hereof, being merged with and into IPSA International Services, Inc. a Delaware corporation (“Merger Sub”), a wholly owned subsidiary of\nroot9B (the “Merger”), pursuant to that certain Merger Agreement dated February 6, 2015 by and among root9B, Merger Sub and IPSA (the\n“Merger Agreement”); and\nWHEREAS, as a condition of the Merger, Wachtler has agreed to enter into and comply with this Agreement, without which root9B would not\notherwise proceed.\nNOW THEREFORE, it is agreed by and between the parties hereto as follows:\n1. Definitions.\n“Base Salary” has the meaning ascribed thereto in the Wachtler Employment Agreement.\n“Confidential Information” refers to information treated by IPSA and Merger Sub as confidential and proprietary that is not known by others and\ngives IPSA and Merger Sub a competitive advantage over other companies that do not have access to such information, whether conveyed orally or\nreduced to a tangible form in any medium, including information concerning the trade secrets, data, know-how, processes, techniques, operations,\nfuture plans, customers, business models, strategies, business methods and other proprietary information, as well as information about the\nemployees, customers, clients, investors and business partners of IPSA and Merger Sub. “Confidential Information” does not and will not include\ninformation that (a) is or becomes publicly available other than as a result of a disclosure by Wachtler or his representatives, (b) is or becomes\navailable to Wachtler on a non-confidential basis from a source which is not prohibited from disclosing such information under a legal, contractual\nor fiduciary obligation to IPSA and/or Merger Sub, (c) is approved for release by written authorization of root9B or Merger Sub, (d) is disclosed to\none or more third parties by root9B or Merger Sub without restriction, or (e) is independently developed by Wachtler without reference to or use of\nany Confidential Information.\n“Customer” means a specific department or division (whichever is smaller) of an entity or governmental agency to which IPSA provided services\nprior to the date hereof and to which Merger Sub provides services prior to the Termination Date.\n“Wachtler Employment Agreement” means an employment agreement of even date herewith between Merger Sub and Wachtler.\n2. Acknowledgments. Wachtler acknowledges that:\ni) as a result of Wachtler’s employment by and ownership of IPSA, Wachtler has obtained Confidential Information of IPSA and Merger Sub,\nwhich Confidential Information has been developed and created by IPSA, at substantial expense and constitutes valuable proprietary assets of\nroot9B and Merger Sub;\n(ii) root9B and Merger Sub will suffer substantial damage and irreparable harm which will be difficult to quantify if Wachtler breaches or\nthreatens to breach the terms of this Agreement;\n(iii) the provisions of this Agreement are reasonable and necessary for the protection of root9B’s interest in Merger Sub; and\n(iv) the provisions of this Agreement will not preclude Wachtler from other gainful employment.\n3. Confidentiality. Wachtler covenants and agrees not to disclose or use the Confidential Information for any purpose whatsoever\nother than appropriate use and disclosure in connection with his employment by Merger Sub or any successor thereto and his service as a root9B\nBoard of Directors observer and/or member.\n4. Non-Competition. Except as otherwise expressly provided herein, from the Effective Date until the date on which, inter alia, this\nSection 4 terminates as provided in the Employment Agreement, Wachtler will not directly or indirectly own, operate, manage, join, control,\nfinance or participate in the ownership, management, operation, control or financing of, or be connected as an officer, director, employee, partner,\nmanager, member, principal, agent, representative, consultant or employee, or otherwise, with, any firm, corporation, or other business, organization\nor person engaged in a business which is substantially similar to or in competition with any of the businesses carried on by Merger Sub, whether in\nthe United States or abroad. Nothing herein shall prohibit Wachtler (i) from purchasing or owning less than three percent (3%) of the publicly\ntraded securities of any corporation, provided that such ownership represents a passive investment and that Wachtler is not a controlling person of,\nor a member of\na group that controls, such corporation or (ii) owning, operating, managing, controlling or financing IPSA Security Services, LLC.\n5. Non-Solicitation. From the Effective Date until the date on which, inter alia, this Section 5 terminates as provided in the\nEmployment Agreement, Wachtler will not (i) solicit or attempt to solicit (or assist others to solicit) any Customer, that IPSA or Merger Sub, within\nthe one (1) year period preceding the date of such activity, provided services to; (ii) solicit or attempt to solicit (or assist others to solicit) any person\nwho, within the one (1) year period preceding the date of such activity, was an employee of root9B or its subsidiaries.\n6. Blue Pencil. If, at any time, the provisions of this Agreement shall be determined to be invalid or unenforceable\nunder any applicable law, the court shall interpret them to extend only over the maximum period of time for which they may be enforceable and/or\nthe maximum geographical area as to which they may be enforceable and/or to the maximum extent in all other respects as to which they may be\nenforceable. All other provisions of this Agreement shall remain in full force and effect and shall be enforced as written.\n7. Enforcement. Wachtler acknowledges and agrees that: (i) the purposes of the foregoing covenants are to protect\nroot9B and Merger Sub, and to prevent Wachtler from interfering with the business of root9B and Merger Sub, (ii) because of the nature of the\nbusiness in which root9B and Merger Sub are engaged and because of the nature of the work product and Confidential Information to which he has\naccess, it would be impractical and excessively difficult to determine the actual damages to root9B and Merger Sub in the event he materially\nbreached any of the covenants of this Agreement; and (iii) remedies at law (such as monetary damages) for any material breach of his obligations\nunder this Agreement would be inadequate. Wachtler therefore agrees and consents that if he commits any such breach of a covenant under this\nAgreement or threatens to commit any such breach, root9B and its affiliates shall have the right (in addition to, and not in lieu of, any other right or\nremedy that may be available to each of them) to temporary and permanent injunctive relief from a court of competent jurisdiction, without posting\nany bond or other security and without the necessity of proof of actual damage.\n8. Miscellaneous.\na. Entire Agreement, Amendment. All oral or written agreements or representations, express or implied, with respect to the subject matter of\nthis Agreement are set forth in this Agreement and the Wachtler Employment Agreement. No provisions of this Agreement may be modified,\nwaived, or discharged except by a written document signed by a duly authorized officer of root9B and Wachtler. A waiver of any conditions or\nprovisions of this Agreement in a given instance shall not be deemed a waiver of such conditions or provisions at any other time in the future.\nb. Choice of Law. The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the State of\nDelaware, except that conflicts of laws provisions shall not be applicable. The parties agree that exclusive jurisdiction shall be in the federal and\nstate courts sitting in the County of New Castle, State of Delaware and the parties consent to the jurisdiction of those courts.\nC. Attorneys’ Fees. In any action taken relating to the enforcement of this Agreement, the prevailing party shall be entitled to recover from the\nnon-prevailing party its reasonable attorneys’ fees, court costs and other expenses incurred in connection with such action.\n \nd. Assignment. root9B may assign this Agreement to any subsidiary of root9B and to any successor to substantially all the business and\nassets of root9B or Merger Sub. Wachtler shall not assign this Agreement.\ne. Counterparts. This Agreement may be executed in one or more counterparts, including copies signed and delivered via electronic media,\neach of which shall be deemed to be an original but all of which together shall constitute the same instrument.\n[signatures on following page]\nIN WITNESS WHEREOF, the parties have signed this Agreement as of the Effective Date.\nroot9B Technologies, Inc.\nBy: /s/ Brian King\nBrian King, COO\n/s/ Dan Wachtler\nDan Wachtler, Individually	EX-10.3 6 confidentiality.htm CONFIDENTIALITY AGMT\nCONFIDENTIALITY, NON-COMPETE AND NON-SOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY, NON-COMPETE AND NON-SOLICITATION AGREEMENT (the "Agreement"), made as of February 9, 2015 (the\n"Effective Date"), by and between root9B Technologies, Inc., a Delaware corporation ("rOot9B") and Dan Wachtler ("Wachtler").\nWHEREAS, Wachtler was, prior to the date hereof, the President and CEO of IPSA International, Inc. a Nevada corporation ("IPSA") that is, on the\ndate hereof, being merged with and into IPSA International Services, Inc. a Delaware corporation ("Merger Sub"), a wholly owned subsidiary of\nroot9B\n(the\n"Merger"), pursuant to that certain Merger Agreement dated February 6, 2015 by and among root9B, Merger Sub and IPSA\n(the\n"Merger Agreement"); and\nWHEREAS, as a condition of the Merger, Wachtler has agreed to enter into and comply with this Agreement, without which root9B would not\notherwise proceed.\nNOW THEREFORE, it is agreed by and between the parties hereto as follows:\n1.\nDefinitions.\n"Base Salary" has the meaning ascribed thereto in the Wachtler Employment Agreement.\n"Confidential Information" refers to information treated by IPSA and Merger Sub as confidential and proprietary that is not known by others and\ngives IPSA and Merger Sub a competitive advantage over other companies that do not have access to such information, whether conveyed orally or\nreduced to a tangible form in any medium, including information concerning the trade secrets, data, know-how, processes, techniques, operations,\nfuture plans, customers, business models, strategies, business methods and other proprietary information, as well as information about the\nemployees, customers, clients, investors and business partners of IPSA and Merger Sub. "Confidential Information" does not and will not include\ninformation that (a) is or becomes publicly available other than as a result of a disclosure by Wachtler or his representatives, (b) is or becomes\navailable to Wachtler on a non-confidential basis from a source which is not prohibited from disclosing such information under a legal, contractual\nor\nfiduciary obligation to IPSA and/or Merger Sub, (c) is approved for release by written authorization of root9B or Merger Sub, (d) is disclosed to\none or more third parties by root9B or Merger Sub without restriction, or (e) is independently developed by Wachtler without reference to or use\nof\nany Confidential Information.\n"Customer" means a specific department or division (whichever is smaller) of an entity or governmental agency to which IPSA provided services\nprior to the date hereof and to which Merger Sub provides services prior to the Termination Date.\n"Wachtler Employment Agreement" means an employment agreement of even date herewith between Merger Sub and Wachtler.\n2.\nAcknowledgments. Wachtler acknowledges that:\n(i)\nas a result of Wachtler's employment by and ownership of IPSA, Wachtler has obtained Confidential Information of IPSA and Merger Sub,\nwhich Confidential Information has been developed and created by IPSA, at substantial expense and constitutes valuable proprietary assets of\nroot9B and Merger Sub;\n(ii)\nroot9B and Merger Sub will suffer substantial damage and irreparable harm which will be difficult to quantify if Wachtler breaches or\nthreatens to breach the terms of this Agreement;\n(iii)\nthe provisions of this Agreement are reasonable and necessary for the protection of root9B's interest in Merger Sub; and\n(iv)\nthe provisions of this Agreement will not preclude Wachtler from other gainful employment.\n3.\nConfidentiality.. Wachtler covenants and agrees not to disclose or use the Confidential Information for any purpose whatsoever\nother than appropriate use and disclosure in connection with his employment by Merger Sub or any successor thereto and his service as a root9B\nBoard of Directors observer and/or member.\n4.\nNon-Competition. Except as otherwise expressly provided herein, from the Effective Date until the date on which, inter alia, this\nSection 4 terminates as provided in the Employment Agreement, Wachtler will not directly or indirectly own, operate, manage, join, control,\nfinance or participate in the ownership, management, operation, control or financing of, or be connected as an officer, director, employee, partner,\nmanager, member, principal, agent, representative, consultant or employee, or otherwise, with, any firm, corporation, or other business, organization\nor person engaged in a business which is substantially similar to or in competition with any of the businesses carried on by Merger Sub, whether in\nthe United States or abroad. Nothing herein shall prohibit Wachtler (i) from purchasing or owning less than three percent (3%) of the publicly\ntraded securities of any corporation, provided that such ownership represents a passive investment and that Wachtler is not a controlling person of,\nor a member of\na\ngroup that controls, such corporation or (ii) owning, operating, managing, controlling or financing IPSA Security Services, LLC.\n5.\nNon-Solicitation. From the Effective Date until the date on which, inter alia, this Section 5 terminates as provided in the\nEmployment Agreement, Wachtler will not (i) solicit or attempt to solicit (or assist others to solicit) any Customer, that IPSA or Merger Sub, within\nthe one (1) year period preceding the date of such activity, provided services to; (ii) solicit or attempt to solicit (or assist others to solicit) any person\nwho, within the one (1) year period preceding the date of such activity, was an employee of root9B or its subsidiaries.\n6.\nBlue Pencil.\nIf, at any time, the provisions of this Agreement shall be determined to be invalid or unenforceable\nunder any applicable law, the court shall interpret them to extend only over the maximum period of time for which they may be enforceable and/or\nthe maximum geographical area as to which they may be enforceable and/or to the maximum extent in all other respects as to which they may be\nenforceable. All other provisions of this Agreement shall remain in full force and effect and shall be enforced as written.\n7.\nEnforcement.\nWachtler acknowledges and agrees that: (i) the purposes of the foregoing covenants are to\nprotect\nroot9B and Merger Sub, and to prevent Wachtler from interfering with the business of root9B and Merger Sub, (ii) because of the nature of\nthe\nbusiness in which root9B and Merger Sub are engaged and because of the nature of the work product and Confidential Information to which he\nhas\naccess, it would be impractical and excessively difficult to determine the actual damages to root9B and Merger Sub in the event he materially\nbreached\nany\nof the covenants of this Agreement; and (iii) remedies at law (such as monetary damages) for any material breach of his obligations\nunder this Agreement would be inadequate. Wachtler therefore agrees and consents that if he commits any such breach of a covenant under this\nAgreement or threatens to commit any such breach, root9B and its affiliates shall have the right (in addition to, and not in lieu of, any other right or\nremedy that may be available to each of them) to temporary and permanent injunctive relief from a court of competent jurisdiction, without posting\nany bond or other security and without the necessity of proof of actual damage.\n8.\nMiscellaneous.\na.\nEntire Agreement, Amendment. All oral or written agreements or representations, express or implied, with respect to the subject matter\nof\nthis\nAgreement\nare\nset\nforth\nin\nthis\nAgreement\nand\nthe\nWachtler\nEmployment\nAgreement.\nNo\nprovisions\nof\nthis\nAgreement\nmay\nbe\nmodified,\nwaived, or discharged except by a written document signed by a duly authorized officer of root9B and Wachtler. A waiver of any conditions or\nprovisions of this Agreement in a given instance shall not be deemed a waiver of such conditions or provisions at any other time in the future.\nb.\nChoice of Law. The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the State of\nDelaware, except that conflicts of laws provisions shall not be applicable. The parties agree that exclusive jurisdiction shall be in the federal and\nstate courts sitting in the County of New Castle, State of Delaware and the parties consent to the jurisdiction of those courts.\nc.\nAttorneys' Fees. In any action taken relating to the enforcement of this Agreement, the prevailing party shall be entitled to recover from the\nnon-prevailing party its reasonable attorneys' fees, court costs and other expenses incurred in connection with such action.\nd.\nAssignment. root9B may assign this Agreement to any subsidiary of root9B and to any successor to substantially all the business and\nassets of root9B or Merger Sub. Wachtler shall not assign this Agreement.\ne.\nCounterparts. This Agreement may be executed in one or more counterparts, including copies signed and delivered via electronic media,\neach of which shall be deemed to be an original but all of which together shall constitute the same instrument.\n[signatures on following page]\nIN WITNESS WHEREOF, the parties have signed this Agreement as of the Effective Date.\nroot9B Technologies, Inc.\nBy: /s/ Brian King\nBrian King, COO\n/s/ Dan Wachtler\nDan Wachtler, Individually	EX-10 .3 6 confidentiality.htm CONFIDENTIALITY AGMT\nCONFIDENTIALITY, NON-COMPETE AND NON-SOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY, NON-COMPETE AND NON-SOLICITATION AGREEMENT (the “Agreement”), made as of February 9, 2015 (the\n“Effective Date”), by and between root9B Technologies, Inc., a Delaware corporation (“root9B”) and Dan Wachtler (“Wachtler”).\nWHEREAS, Wachtler was, prior to the date hereof, the President and CEO of IPSA International, Inc. a Nevada corporation (“IPSA”) that is, on the\ndate hereof, being merged with and into IPSA International Services, Inc. a Delaware corporation (“Merger Sub”), a wholly owned subsidiary of\nroot9B (the “Merger”), pursuant to that certain Merger Agreement dated February 6, 2015 by and among root9B, Merger Sub and IPSA (the\n“Merger Agreement”); and\nWHEREAS, as a condition of the Merger, Wachtler has agreed to enter into and comply with this Agreement, without which root9B would not\notherwise proceed.\nNOW THEREFORE, it is agreed by and between the parties hereto as follows:\n1.\nDefinitions.\n“Base Salary” has the meaning ascribed thereto in the Wachtler Employment Agreement.\n“Confidential Information” refers to information treated by IPSA and Merger Sub as confidential and proprietary that is not known by others and\ngives IPSA and Merger Sub a competitive advantage over other companies that do not have access to such information, whether conveyed orally or\nreduced to a tangible form in any medium, including information concerning the trade secrets, data, know-how, processes, techniques, operations,\nfuture plans, customers, business models, strategies, business methods and other proprietary information, as well as information about the\nemployees, customers, clients, investors and business partners of IPSA and Merger Sub. “Confidential Information” does not and will not include\ninformation that (a) is or becomes publicly available other than as a result of a disclosure by Wachtler or his representatives, (b) is or becomes\navailable to Wachtler on a non-confidential basis from a source which is not prohibited from disclosing such information under a legal, contractual\nor fiduciary obligation to IPSA and/or Merger Sub, (c) is approved for release by written authorization of root9B or Merger Sub, (d) is disclosed to\none or more third parties by root9B or Merger Sub without restriction, or (e) is independently developed by Wachtler without reference to or use of\nany Confidential Information.\n“Customer” means a specific department or division (whichever is smaller) of an entity or governmental agency to which IPSA provided services\nprior to the date hereof and to which Merger Sub provides services prior to the Termination Date.\n“Wachtler Employment Agreement” means an employment agreement of even date herewith between Merger Sub and Wachtler.\n2.\nAcknowledgments. Wachtler acknowledges that:\n(i)\nas a result of Wachtler’s employment by and ownership of IPSA, Wachtler has obtained Confidential Information of IPSA and Merger Sub,\nwhich Confidential Information has been developed and created by IPSA, at substantial expense and constitutes valuable proprietary assets of\nroot9B and Merger Sub;\n(ii)\nroot9B and Merger Sub will suffer substantial damage and irreparable harm which will be difficult to quantify if Wachtler breaches or\nthreatens to breach the terms of this Agreement;\n(iii)\nthe provisions of this Agreement are reasonable and necessary for the protection of root9B’s interest in Merger Sub; and\n(iv)\nthe provisions of this Agreement will not preclude Wachtler from other gainful employment.\n3.\nConfidentiality. Wachtler covenants and agrees not to disclose or use the Confidential Information for any purpose whatsoever\nother than appropriate use and disclosure in connection with his employment by Merger Sub or any successor thereto and his service as a root9B\nBoard of Directors observer and/or member.\n4.\nNon-Competition. Except as otherwise expressly provided herein, from the Effective Date until the date on which, inter alia, this\nSection 4 terminates as provided in the Employment Agreement, Wachtler will not directly or indirectly own, operate, manage, join, control,\nfinance or participate in the ownership, management, operation, control or financing of, or be connected as an officer, director, employee, partner,\nmanager, member, principal, agent, representative, consultant or employee, or otherwise, with, any firm, corporation, or other business, organization\nor person engaged in a business which is substantially similar to or in competition with any of the businesses carried on by Merger Sub, whether in\nthe United States or abroad. Nothing herein shall prohibit Wachtler (i) from purchasing or owning less than three percent (3%) of the publicly\ntraded securities of any corporation, provided that such ownership represents a passive investment and that Wachtler is not a controlling person of,\nor a member of\na group that controls, such corporation or (ii) owning, operating, managing, controlling or financing IPSA Security Services, LLC.\n5.\nNon-Solicitation. From the Effective Date until the date on which, inter alia, this Section 5 terminates as provided in the\nEmployment Agreement, Wachtler will not (i) solicit or attempt to solicit (or assist others to solicit) any Customer, that IPSA or Merger Sub, within\nthe one (1) year period preceding the date of such activity, provided services to; (ii) solicit or attempt to solicit (or assist others to solicit) any person\nwho, within the one (1) year period preceding the date of such activity, was an employee of root9B or its subsidiaries.\n6.\nBlue Pencil.\nIf, at any time, the provisions of this Agreement shall be determined to be invalid or unenforceable\nunder any applicable law, the court shall interpret them to extend only over the maximum period of time for which they may be enforceable and/or\nthe maximum geographical area as to which they may be enforceable and/or to the maximum extent in all other respects as to which they may be\nenforceable. All other provisions of this Agreement shall remain in full force and effect and shall be enforced as written.\n7.\nEnforcement.\nWachtler acknowledges and agrees that: (i) the purposes of the foregoing covenants are to protect\nroot9B and Merger Sub, and to prevent Wachtler from interfering with the business of root9B and Merger Sub, (ii) because of the nature of the\nbusiness in which root9B and Merger Sub are engaged and because of the nature of the work product and Confidential Information to which he has\naccess, it would be impractical and excessively difficult to determine the actual damages to root9B and Merger Sub in the event he materially\nbreached any of the covenants of this Agreement; and (iii) remedies at law (such as monetary damages) for any material breach of his obligations\nunder this Agreement would be inadequate. Wachtler therefore agrees and consents that if he commits any such breach of a covenant under this\nAgreement or threatens to commit any such breach, root9B and its affiliates shall have the right (in addition to, and not in lieu of, any other right or\nremedy that may be available to each of them) to temporary and permanent injunctive relief from a court of competent jurisdiction, without posting\nany bond or other security and without the necessity of proof of actual damage.\n8.\nMiscellaneous.\na.\nEntire Agreement, Amendment. All oral or written agreements or representations, express or implied, with respect to the subject matter of\nthis Agreement are set forth in this Agreement and the Wachtler Employment Agreement. No provisions of this Agreement may be modified,\nwaived, or discharged except by a written document signed by a duly authorized officer of root9B and Wachtler. A waiver of any conditions or\nprovisions of this Agreement in a given instance shall not be deemed a waiver of such conditions or provisions at any other time in the future.\nb.\nChoice of Law. The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the State of\nDelaware, except that conflicts of laws provisions shall not be applicable. The parties agree that exclusive jurisdiction shall be in the federal and\nstate courts sitting in the County of New Castle, State of Delaware and the parties consent to the jurisdiction of those courts.\nc.\nAttorneys’ Fees. In any action taken relating to the enforcement of this Agreement, the prevailing party shall be entitled to recover from the\nnon-prevailing party its reasonable attorneys’ fees, court costs and other expenses incurred in connection with such action.\nd.\nAssignment. root9B may assign this Agreement to any subsidiary of root9B and to any successor to substantially all the business and\nassets of root9B or Merger Sub. Wachtler shall not assign this Agreement.\ne.\nCounterparts. This Agreement may be executed in one or more counterparts, including copies signed and delivered via electronic media,\neach of which shall be deemed to be an original but all of which together shall constitute the same instrument.\n[signatures on following page]\nIN WITNESS WHEREOF, the parties have signed this Agreement as of the Effective Date.\nroot9B Technologies, Inc.\nBy: /s/ Brian King\nBrian King, COO\n/s/ Dan Wachtler\nDan Wachtler, Individually
+f4021409512fd2f95a9a8cf7af8f5b9b.pdf	effective_date jurisdiction party term	EX-10 .2 3 ex102elcagreement.htm EXHIBIT 10.2\nExhibit 10.2\nARAMARK AGREEMENT RELATING TO EMPLOYMENT AND\nPOST-EMPLOYMENT COMPETITION\nThis Agreement is between the undersigned individual (“Employee”) and Aramark.\nRECITALS\nWHEREAS, Aramark is a leading provider of managed services to business and industry, private and public\ninstitutions, and the general public, in the following business groups: food and support services and uniform and career\napparel;\nWHEREAS, Aramark has a proprietary interest in its business and financial plans and systems, methods of\noperation and other secret and confidential information, knowledge and data (“Proprietary Information”) which includes,\nbut is not limited to, all confidential, proprietary or non-public information, ideas and concepts; annual and strategic\nbusiness plans; financial plans, reports and systems including, profit and loss statements, sales, accounting forms and\nprocedures and other information regarding costs, pricing and the financial condition of Aramark and its business\nsegments and groups; management development reviews, including information regarding the capabilities and\nexperience of Aramark employees; intellectual property, including patents, inventions, discoveries, research and\ndevelopment, compounds, recipes, formulae, reports, protocols, computer software and databases; information regarding\nAramark’s relationships with its clients, customers, and suppliers and prospective clients, partners, customers and\nsuppliers; policy and procedure manuals, information regarding materials and documents in any form or medium\n(including oral, written, tangible, intangible, or electronic) concerning any of the above, or any past, current or future\nbusiness activities of Aramark that is not publicly available; compensation, recruiting and training, and human resource\npolicies and procedures; and data compilations, research, reports, structures, compounds, techniques, methods,\nprocesses, and know-how;\nWHEREAS, all such Proprietary Information is developed at great expense to Aramark and is considered by\nAramark to be confidential trade secrets;\nWHEREAS, Employee, as a senior manager, will have access to Aramark’s Proprietary Information, directly in\nthe course of Employee’s employment, and indirectly through interaction with and presentations by other Aramark\nsenior managers at the Executive Leadership Institute, Executive Leadership Council meetings, Presidents’ Council\nmeetings and the like;\nWHEREAS, Aramark will introduce Employee to Aramark clients, customers, suppliers and others, and will\nencourage, and provide resources for, Employee to develop professional relationships with Aramark’s clients, customers,\nsuppliers and others;\nWHEREAS, Aramark will provide specialized training and skills to Employee in connection with the\nperformance of Employee’s duties at Aramark which training involves the disclosure by Aramark to Employee of\nProprietary Information;\nWHEREAS, Aramark will be vulnerable to unfair post-employment competition by Employee because\nEmployee will have access to and knowledge of Aramark’s Proprietary Information, will have a personal relationship\nwith Aramark’s clients, customers, suppliers and others, and will generate good will which Employee acknowledges\nbelongs to Aramark;\nNOW, THEREFORE, in consideration of Employee’s employment with Aramark, the opportunity to receive the\ngrant of options to purchase common stock of Aramark, severance and other post-employment benefits provided for\nherein (including pursuant to Exhibit B hereto to which Employee acknowledges Employee is not otherwise entitled),\nand for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Employee\nagrees to enter into this Agreement with Aramark as a condition of employment pursuant to which Aramark will limit\nEmployee’s right to compete against Aramark during and following termination of employment on the terms set forth in\nthis Agreement. Intending to be legally bound, the parties agree as follows:\nARTICLE 1\nNON-DISCLOSURE AND NON-DISPARAGEMENT\nEmployee shall not, during or after termination of employment, directly or indirectly, in any manner utilize or\ndisclose to any person, firm, corporation, association or other entity, except where required by law, any Proprietary\nInformation which is not generally known to the public, or has not otherwise been disclosed or recognized as standard\npractice in the industries in which Aramark is engaged. Employee shall, during and after termination of employment,\nrefrain from making any statements or comments of a defamatory or disparaging nature to any third party regarding\nAramark, or any of Aramark’s officers, directors, personnel, policies or products, other than to comply with law.\nARTICLE 2\nNON-COMPETITION\nA. Subject to Article 2. B . below, Employee, during Employee’s period of employment with Aramark, and for a\nperiod of two years following the voluntary or involuntary termination of employment, shall not, without Aramark’s\nwritten permission, which shall be granted or denied in Aramark’s sole discretion, directly or indirectly, associate with\n(including, but not limited to, association as a sole proprietor, owner, employer, partner, principal, investor, joint\nventurer, shareholder, associate, employee, member, consultant, contractor or otherwise), or acquire or maintain\nownership interest in, any Business which is competitive with that conducted by or developed for later implementation\nby Aramark at any time during the term of Employee’s employment, provided, however, if Employee’s employment is\ninvoluntarily terminated by Aramark for any reason other than Cause (as defined herein), or (ii) terminated by Employee\nfor Good Reason (as defined in Exhibit B) at any time following a Change of Control (as defined in Exhibit B) occurring\nafter the date of this Agreement, then the term of the non-competition provision set forth herein will be modified to be\neighteen months following such termination of employment. For purposes of this Agreement, “Business” shall be\ndefined as a person, corporation, firm, LLC, partnership, joint venture or other entity. Nothing in the foregoing shall\n2\nprevent Employee from investing in a Business that is or becomes publicly traded, if Employee’s ownership is as a\npassive investor of less than 1% of the outstanding publicly traded stock of the Business.\nB. The provision set forth in Article 2.A above, shall apply to the full extent permitted by law (i) in all fifty\nstates, and (ii) each foreign country, possession or territory in which Aramark may be engaged in, or have plans to\nengage in, business (x) during Employee’s period of employment, or (y) in the case of a termination of employment, as\nof the effective date of such termination or at any time during the twenty-four month period prior thereto.\nC. Employee acknowledges that these restrictions are reasonable and necessary to protect the business interests\nof Aramark, and that enforcement of the provisions set forth in this Article 2 will not unnecessarily or unreasonably\nimpair Employee’s ability to obtain other employment following the termination (voluntary or involuntary) of\nEmployee’s employment with Aramark. Further, Employee acknowledges that the provisions set forth in this Article 2\nshall apply if Employee’s employment is involuntarily terminated by Aramark for Cause; as a result of the elimination of\nemployee’s position; for performance-related issues; or for any other reason or no reason at all.\nARTICLE 3\nNON-SOLICITATION\nDuring the period of Employee’s employment with Aramark and for a period of two years following the\ntermination of Employee’s employment, regardless of the reason for termination, Employee shall not, directly or\nindirectly: (i) induce or encourage any employee of Aramark to leave the employ of Aramark, (ii) hire any individual\nwho was an employee of Aramark as of the date of Employee’s termination of employment or within a six month period\nprior to such date, or (iii) induce or encourage any customer, client, supplier or other business relation of Aramark to\ncease or reduce doing business with Aramark or in any way interfere with the relationship between any such customer,\nclient, supplier or other business relation and Aramark.\nARTICLE 4\nDISCOVERIES AND WORKS\nEmployee hereby irrevocably assigns, transfers, and conveys to Aramark to the maximum extent permitted by\napplicable law Employee’s right, title and interest now or hereinafter acquired, in and to all Discoveries and Works (as\ndefined below) created, invented, designed, developed, improved or contributed to by Employee, either alone or jointly\nwith others, while employed by Aramark and within the scope of Employee’s employment and/or with the use of\nAramark’s resources. The terms “Discoveries and Works” include all works of authorship, inventions, intellectual\nproperty, materials, documents, or other work product (including, without limitation, Proprietary Information, patents\nand patent applications, patentable inventions, research, reports, software, code, databases, systems, applications,\npresentations, textual works, graphics and audiovisual materials). Employee shall have the burden of proving that any\nmaterials or works created, invented, designed, developed, contributed to or improved by\n3\nEmployee that are implicated by or relevant to employment by Aramark are not implicated by this provision. Employee\nagrees to (i) keep accurate records and promptly notify, make full disclosure to, and execute and deliver any documents\nand to take any further actions requested by Aramark to assist it in validating, effectuating, maintaining, protecting,\nenforcing, perfecting, recording, patenting or registering any of its rights hereunder, and (ii) renounce any and all claims,\nincluding, without limitation, claims of ownership and royalty, with respect to all Discoveries and Works and all other\nproperty owned or licensed by Aramark. Any Discoveries and Works that, within six months after the termination of\nEmployee’s employment with Aramark, are made, disclosed, reduced to a tangible or written form or description, or are\nreduced to practice by Employee and which pertain to the business carried on or products or services being sold or\ndeveloped by Aramark at the time of such termination shall, as between Employee and Aramark, be presumed to have\nbeen made during such employment with Aramark. Employee acknowledges that, to the fullest extent permitted by law,\nall Discoveries and Works shall be deemed “works made for hire” under the Copyright Act of 1976, as amended, 17\nU.S .C . Section 101. Employee hereby grants Aramark a perpetual, nonexclusive, royalty-free, worldwide, assignable,\nsublicensable license under all rights and intellectual property rights (including patent, industrial property, copyright,\ntrademark, trade secret, unfair competition and related laws) in any Works and Discoveries, for all purposes in\nconnection with Aramark’s current and future business, that Employee has created, invented, designed, developed,\nimproved or contributed to prior to Employee’s employment with Aramark that are relevant to or implicated by such\nemployment (“Prior Works”). Any Prior Works are disclosed by Employee in Schedule 1.\nARTICLE 5\nREMEDIES\nEmployee acknowledges that in the event of any violation by Employee of the provisions set forth in Articles 1,\n2, 3 or 4 above, Aramark will sustain serious, irreparable and substantial harm to its business, the extent of which will be\ndifficult to determine and impossible to fully remedy by an action at law for money damages. Accordingly, Employee\nagrees that, in the event of such violation or threatened violation by Employee, Aramark shall be entitled to an injunction\nbefore trial before any court of competent jurisdiction as a matter of course upon the posting of not more than a nominal\nbond, in addition to all such other legal and equitable remedies as may be available to Aramark. If Aramark is required\nto enforce the provisions set forth in Articles 2 and 3 above by seeking an injunction, Employee agrees that the relevant\ntime periods set forth in Articles 2 and 3 shall commence with the entry of the injunction. Employee further agrees that,\nin the event any of the provisions of this Agreement are determined by a court of competent jurisdiction to be invalid,\nillegal, or for any reason unenforceable as written, such court shall substitute a valid provision which most closely\napproximates the intent and purpose of the invalid provision and which would be enforceable to the maximum extent\npermitted by law.\nARTICLE 6\nPOST-EMPLOYMENT BENEFITS\n4\nA. If Employee’s employment is terminated by Aramark for any reason other than Cause, Employee shall be\nentitled to the following post-employment benefits:\n1. Severance Pay: Employee shall receive severance payments equivalent to Employee’s monthly base\nsalary as of the effective date of termination for twelve (12) months, should the Employee have less than one (1) year of\ncontinuous service with Aramark completed from the date of hire; and for eighteen (18) months, should the Employee\nhave one (1) year or more of continuous service with Aramark completed from the date of hire. Severance payments\nshall commence with the Employee’s effective date of termination and shall be made in accordance with Aramark’s\nnormal payroll cycle. The period during which Employee receives severance payments shall be referred to as the\n“Severance Pay Period.”\n2. Other Post-Employment Benefits\n(a) Basic Group medical and life insurance coverages shall continue under then prevailing terms\nduring the Severance Pay Period; provided, however, that if Employee becomes employed by a new employer during\nthat period, continuing coverage from Aramark will become secondary to any coverage afforded by the new employer.\nEmployee’s share of the premiums will be deducted from Employee’s severance payments. Basic Group medical\ncoverage provided during such period shall be applied against Aramark’s obligation to continue group medical coverage\nunder the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”). Upon termination of basic group\nmedical and life coverages, Employee may convert such coverages to individual policies to the extent allowable under\nthe terms of the plans providing such coverages.\n(b) If, at the time of termination, Aramark is providing Employee with a leased vehicle, then\nAramark will continue to provide the leased vehicle through the Severance Pay Period under the same terms and\nconditions as in effect at the time of the Employee’s termination. At the expiration of the Severance Pay Period,\nEmployee must return the leased vehicle to Aramark unless the Employee elects to purchase the vehicle in accordance\nwith the Executive Leadership Council policy then in effect. If Employee is receiving a car allowance at the time of the\nEmployee’s termination, such car allowance will continue to be paid through the Severance Pay Period. At the expiration\nof the Severance Pay Period, the Employee will cease being paid a car allowance.\n(c) Employee’s eligibility to participate in all other benefit and compensation plans, including,\nbut not limited to the Management Incentive Bonus, Long Term Disability, any nonqualified retirement plans, and any\nstock option or ownership plans, shall terminate as of the effective date of Employee’s termination unless provided\notherwise under the terms of a particular plan, provided, however, that participation in plans and programs made\navailable solely to Executive Leadership Council members, including, but not limited to the Executive Leadership\nCouncil Medical Plan, shall cease as of the effective date of termination or the date Employee’s Executive Leadership\nCommittee membership ceases, whichever occurs\n5\nfirst. Employee, however, shall have certain rights to continue the Executive Leadership Council Medical Plan under\nCOBRA.\nB. Termination for “Cause” shall be defined as termination of employment due to: (i) conviction or plea of\nguilty or nolo contendere to a felony, (ii) intentional fraud or dishonesty with respect to Aramark that causes material and\ndemonstrable harm to Aramark, (iii) willful and continuous failure to perform lawfully assigned duties that are consistent\nwith the Employee’s position with Aramark, (iv) willful violation of Aramark’s Business Conduct Policy that causes\nmaterial harm to Aramark or its business reputation, or (v) intentionally working against the best interests of Aramark; in\nany case of conduct described in clause (ii)-(v), only if such conduct continues beyond ten business days after receipt by\nthe Employee from Aramark of a written demand to cure such conduct.\nC. If Employee is terminated by Aramark for reasons other than Cause, Employee will receive the severance\npayments and other post-employment benefits during the Severance Pay Period even if Employee commences other\nemployment during such period provided such employment does not violate the terms of Article 2, and subject to the\nprovisions of Article 6.E.\nNotwithstanding anything else contained in this Article 6 to the contrary, Aramark may choose not to commence\n(or to discontinue) providing any payment or benefit unless and until Employee executes and delivers, without\nrevocation, a release in form reasonably acceptable to Aramark, as described in Article 6.E within 60 days following\nEmployee’s termination of employment; provided, however, that subject to receipt of such executed release, Aramark\nshall commence providing such payments and benefits within 75 days following the date of termination of Employee’s\nemployment.\nD. In addition to the remedies set forth in Article 5, Aramark reserves the right to terminate all severance\npayments and other post-employment benefits if Employee violates the covenants set forth in Articles 1, 2, 3 or 4 above\nin any material respect.\nE. Employee’s receipt of severance and other post-employment benefits under this Agreement is contingent on\n(i) Employee’s execution of a release in a form reasonably acceptable to Aramark, except that such release shall not\ninclude any claims by Employee to enforce Employee’s rights under, or with respect to, (1) this Agreement (including\nthe attached Exhibit B), (2) the Certificate of Incorporation and By-laws of Aramark, (3) any indemnification agreement\nbetween the Employee and Aramark, (4) any Stockholders Agreement among Aramark and the holders party thereto (the\n“Stockholders Agreement”) and any other agreement referenced therein, or (5) any Aramark benefit plan pursuant to its\nterms, and (ii) the expiration of the applicable Age Discrimination in Employment Act revocation period without such\nrelease being revoked by Employee.\nARTICLE 7\nTERM OF EMPLOYMENT\nEmployee acknowledges that Aramark has the right to terminate Employee’s employment at any time for any\nreason whatsoever, provided, however, that any termination by Aramark for\n6\nreasons other than Cause shall result in the severance and the post-employment benefits described in Article 6 above, to\nbecome due in accordance with the terms of this Agreement subject to the conditions set forth in this Agreement.\nEmployee further acknowledges that the severance payments made and other benefits provided by Aramark are in full\nsatisfaction of any obligations Aramark may have resulting from Aramark’s exercise of its right to terminate Employee’s\nemployment, except for those obligations which are intended to survive termination such as the payments to be made\npursuant to retirement plans, deferred compensation plans, conversion of insurance, and the plans and other documents\nand agreements referred to in Article 6.E above.\nARTICLE 8\nMISCELLANEOUS\nA. As used throughout this Agreement, Aramark includes Aramark and its subsidiaries and affiliates or any\ncorporation, joint venture, or other entity in which Aramark or its subsidiaries or affiliates has an equity interest in excess\nof ten percent (10%).\nB. Notwithstanding anything to the contrary contained herein, Employee shall, after termination of employment\nfor Good Reason by Employee or other than for Cause by Aramark, retain all rights to indemnification under applicable\nlaw or any agreement (including, without limitation, the Stockholders Agreement), or under Aramark’s or any parent\ncorporation’s Certificate of Incorporation or By-Laws at a level that is at least as favorable to the Employee as that\ncurrently provided. In addition, the Company shall maintain Director’s and Officer’s liability insurance on behalf of\nEmployee, at the level in effect immediately prior to such date of termination, for the three-year period following the\ndate of termination, and throughout the period of any applicable statute of limitations.\nC. In the event that it is reasonably determined by Aramark that, as a result of the deferred compensation tax\nrules under Section 409A of the Internal Revenue Code of 1986, as amended (and any related regulations or other\npronouncements thereunder) (“the Deferred Compensation Tax Rules”), any of the payments and benefits that Employee\nis entitled to under the terms of this Agreement (including under Exhibit B) may not be made at the time contemplated\nby the terms hereof or thereof, as the case may be, without causing Employee to be subject to tax under the Deferred\nCompensation Tax Rules, Aramark shall, in lieu of providing such payment or benefit when otherwise due under this\nAgreement, instead provide such payment or benefit on the first day on which such provision would not result in\nEmployee incurring any tax liability under the Deferred Compensation Tax Rules; which day, if Employee is a “specified\nemployee” within the meaning of the Deferred Compensation Tax Rules, shall be the first day of the seventh month\nfollowing the date of Employee’s termination of employment (or the earliest date as is permitted under the Deferred\nCompensation Tax Rules, without any accelerated or additional tax); provided, further, that to the extent that the amount\nof payments due under Article 6.A (or Exhibit B, as applicable) are not subject to the Deferred Compensation Tax Rules\nby virtue of the application of Treas. Reg. Sec. 1.409A-1(b)(9)(iii)(A), such payments may be made prior to the\nexpiration of such six-month period. In addition, if the commencement of any payment or benefit provided under Article\n6 that constitutes “deferred compensation”\n7\nunder the Deferred Compensation Tax Rules could, by application of the terms conditioning such payment or benefit\nupon the execution and non-revocation of a release set forth in Article 6, occur in one of two taxable years, then the\ncommencement of such payment shall begin on the first payroll date occurring in January of such second taxable year.\nTo the extent any reimbursements or in-kind benefits due to Employee under this Agreement constitute “deferred\ncompensation” under the Deferred Compensation Tax Rules, any such reimbursements or in-kind benefits shall be paid\nto Employee in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). Additionally, to the extent that\nEmployee's receipt of any in-kind benefits from Aramark or its affiliates must be delayed pursuant to this Section due to\nEmployee’s status as a “specified employee,” Employee may elect to instead purchase and receive such benefits during\nthe period in which the provision of benefits would otherwise be delayed by paying the Aramark (or its affiliates) for the\nfair market value of such benefits (as determined by Aramark in good faith) during such period. Any amounts paid by\nEmployee pursuant to the preceding sentence shall be reimbursed to Employee (with interest thereon) as described above\non the date that is the first day of the seventh month following Employee’s separation from service. In the event that any\npayments or benefits that Aramark would otherwise be required to provide under this Agreement cannot be provided in\nthe manner contemplated herein without subjecting Employee to tax under the Deferred Compensation Tax Rules,\nAramark shall provide such intended payments or benefits to Employee in an alternative manner that conveys an\nequivalent economic benefit to Employee as soon as practicable as may otherwise be permitted under the Deferred\nCompensation Tax Rules. Without limiting the generality of the foregoing, Employee may notify Aramark if he believes\nthat any provision of this Agreement (or of any award of compensation including equity compensation or benefits)\nwould cause Employee to incur any additional tax under Section 409A and, if Aramark concurs with such belief after\ngood faith review or Aramark independently makes such determination, Aramark shall, after consulting with Employee,\nuse reasonable best efforts to reform such provision to comply with Section 409A through good faith modifications to\nthe minimum extent reasonably appropriate to conform the Deferred Compensation Tax Rules; provided that neither\nAramark nor any of its employees or representatives shall have any liability to Employee with respect thereto. For\npurposes of the Deferred Compensation Tax Rules, each payment made under this Agreement (including, without\nlimitation, each installment payment due under Article 6.A and Exhibit B, as applicable) shall be designated as a\n“separate payment” within the meaning of the Deferred Compensation Tax Rules, and references herein to Employee’s\n“termination of employment” shall refer to Employee’s separation from service with Aramark and its affiliates within the\nmeaning of the Deferred Compensation Tax Rules.\nD. In the event of a Change of Control as defined in the attached Exhibit B, the provisions of Exhibit B shall\napply to Employee. Further, pursuant to the Deferred Compensation Tax Rules, Aramark, in its discretion, is permitted to\naccelerate the time and form of payments provided under the deferred compensation arrangement set forth in this\nAgreement (including Exhibit B), where the right to the payment arises due to a termination of the arrangement within\nthe 30 days preceding or the 12 months following a change in control event (as defined in the Deferred Compensation\nTax Rules).\n8\nE. If Employee’s employment with Aramark terminates solely by reason of a transfer of stock or assets of, or a\nmerger or other disposition of, a subsidiary of Aramark (whether direct or indirect), such termination shall not be\ndeemed a termination of employment by Aramark for purposes of this Agreement, provided that Aramark requires the\nsubsequent employer, by agreement, to expressly assume and agree to perform this Agreement in the same manner and\nto the same extent that Aramark would be required to perform it if no such transaction had taken place. In such case,\nEmployee acknowledges and agrees that Aramark may assign this Agreement and Aramark’s rights hereunder, and\nparticularly Articles 1, 2, 3 and 4, in its sole discretion and without advance approval by Employee. In such case,\nEmployee agrees that Aramark may assign this Agreement and all references to “Aramark” contained in this Agreement\nshall thereafter be deemed to refer to the subsequent employer.\nF. Employee shall not be required to mitigate damages or the amount of any payment provided for under this\nAgreement by seeking other employment or otherwise.\nG. This Agreement shall supersede and substitute for any previous post-employment or severance agreement\nbetween Employee and Aramark.\nH. In the event any one or more of the provisions of this Agreement shall be or become invalid, illegal or\nunenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall\nnot be affected thereby.\nI. The terms of this Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, without\nregard to conflicts of laws principles thereof. For purposes of any action or proceeding, Employee irrevocably submits to\nthe non-exclusive jurisdiction of the courts of Pennsylvania and the courts of the United States of America located in\nPennsylvania for the purpose of any judicial proceeding arising out of or relating to this Agreement, and acknowledges\nthat the designated fora have a reasonable relation to the Agreement and to the parties’ relationship with one another.\nNotwithstanding the provisions of this Article 8.I, Aramark may, in its discretion, bring an action or special proceeding\nin any court of competent jurisdiction for the purpose of seeking temporary or preliminary relief pending resolution of a\ndispute.\nJ. Employee expressly consents to the application of Article 8.I to any judicial action or proceeding arising out\nof or relating to this Agreement. Aramark shall have the right to serve legal process upon Employee in any manner\npermitted by law. In addition, Employee irrevocably appoints the Executive Vice President, Human Resources of\nAramark (or any successor) as Employee’s agent for service of legal process in connection with any such action or\nproceeding and Employee agrees that service of legal process upon such agent, who shall promptly advise Employee of\nany such service of legal process at the address of Employee then in the records of Aramark, shall be deemed in every\nrespect effective service of legal process upon Employee in any such action or proceeding.\nK. Employee hereby waives, to the fullest extent permitted by applicable law, any objection that Employee now\nor hereafter may have to personal jurisdiction or to the laying of venue of any action or proceeding brought in any court\nreferenced in Article 8.I and hereby agrees not to plead or claim the same.\n9\nL. Notwithstanding any other provision of this Agreement, Aramark may, to the extent required by law,\nwithhold applicable federal, state and local income and other taxes from any payments due to Employee hereunder.\nM. Employee and Aramark acknowledge that for purposes of Article 6, Employee’s last hire date with Aramark\nis April 6, 2015.\nN. Employee expressly acknowledges and agrees that the Incentive Compensation Recoupment Policy set forth\nin Exhibit to this Agreement is binding on Employee and that Employee is a Covered Employee as defined in that policy\nO. This Agreement shall be binding upon, inure to the benefit of and be enforceable by Aramark and Employee,\nand their respective heirs, legal representatives, successors and assigns. Employee acknowledges and agrees that this\nAgreement, including its provisions on post-employment restrictions, is specifically assignable by Aramark. Employee\nhereby consents to such future assignment and agrees not to challenge the validity of such future assignment.\nIN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have caused this Agreement to\nbe signed this 14th date of March, 2015.\n/s/ Stephen P. Bramlage, Jr.\nAramark\nStephen Bramlage, Jr.\nBy: /s/ Lynn B. McKee\n10\nSchedule 1\nPrior Works*\n11\nExhibit A\nAramark\nIncentive Compensation Recoupment Policy\nOverview\nAramark (the “Company”) has adopted this incentive compensation recoupment policy (the “Policy”) in order to\nensure that incentive compensation is paid based on accurate financial data. In the event of an accounting restatement as\ndescribed below the Company may seek recovery of incentive compensation that would have not been paid if the correct\nperformance data had been used to determine the amount payable. The Board of Directors (the “Board”) and the\nCompensation and Human Resources Committee of the Board (the “Committee”) shall have full authority to interpret\nand enforce the Policy.\nCovered Employees\nThe Policy applies to “Covered Employees” who are: the executive officers of the Company and its subsidiaries\n(as defined under Rule 3b-7 under the Securities Exchange Act of 1934, as amended) and all other direct reports of the\nChief Executive Officer of the Company.\nIncentive Compensation\nFor purposes of this Policy, “incentive compensation” means cash performance bonuses and incentive stock\nawards including performance stock units paid, granted, vested or accrued under any Company plan or agreement in the\nform of cash or Company common stock whose payment or vesting is based on the achievement of one or more financial\nmetrics.\nAccounting Restatement; Calculation of Overpayment\nIf the Board or the Committee determines that (i) incentive compensation of a Covered Employee was overpaid,\nin whole or in part, as a result of a restatement of the reported financial or operating results of the Company due to\nmaterial non-compliance with financial reporting requirements under the securities laws (unless due to a change in\naccounting policy or applicable law) and (ii) such Covered Employee has engaged in misconduct that causes or\ncontributed, directly or indirectly, to the non-compliance that resulted in the obligation to restate the Company’s reported\nfinancial or operating results, the Board or the Committee will determine, in its discretion, whether the Company shall,\nto the extent permitted by applicable law, seek to recover or cancel the incentive compensation granted, paid to, issued or\nvested in excess of the incentive compensation that would have been paid or granted to such Covered Employee or the\nincentive compensation in which such Covered Employee would have vested had the actual payment, granting or vesting\nbeen calculated based on the accurate data or restated results, as applicable (the “Overpayment”).\n12\nForms of Recovery\nIf the Board or the Committee determines to seek recovery for the Overpayment, the Company shall have the\nright to demand that the Covered Employee reimburse the Company for the Overpayment. The Board or the Committee\nshall have the discretion to determine the form, amount and timing of any repayment. To the extent the Covered\nEmployee does not make reimbursement of the Overpayment, the Company shall have the right to enforce the repayment\nthrough the reduction or cancellation of outstanding and future incentive compensation and shall also have the right to\nsue for repayment. To the extent any shares have been issued under vested awards or such shares have been sold by the\nCovered Employee, the Company shall have the right to cancel any other outstanding stock-based awards with a value\nequivalent to the Overpayment, as determined by the Board or the Committee.\nTime Period for Overpayment Review\nThe Board or the Committee may make determinations of whether the Company shall seek recovery or\ncancellation of the Overpayment at any time through the end of the third fiscal year following the year for which the\ninaccurate performance criteria were measured; provided, that if steps have been taken within such period to restate the\nCompany’s financial or operating results, the time period shall be extended until such restatement is completed. For\nillustrative purposes only, this means that if incentive compensation is paid in late calendar 2015 for performance metrics\nbased on fiscal year 2015 performance, the compensation shall be subject to review for Overpayment until the end of the\n2018 fiscal year. Notwithstanding the above, if the Board or the Committee determines that any Covered Employee\nengaged in fraud or misconduct, the Board or the Committee shall be entitled to seek recovery or cancellation of the\nOverpayment with respect to such Covered Employee for a period of six years after the act of fraud or misconduct, as\nsuch time period is calculated by the Board or Committee.\nNo Additional Payments\nIn no event shall the Company be required to award Covered Employees an additional payment if the restated or\naccurate financial results would have resulted in a higher incentive compensation payment.\nApplicability\nThis Policy applies to all incentive compensation, granted, paid or credited after February 3, 2015, except to the\nextent prohibited by applicable law or any other legal obligation of the Company. Application of the Policy does not\npreclude the Company from taking any other action to enforce a Covered Employee’s obligations to the Company,\nincluding termination of employment or institution of civil or criminal proceedings or any other remedies that may be\navailable to the Company, including such remedies contained, without limitation, in the Company’s equity grant and\nemployment agreements, whether or not there is a restatement.\nCommittee Determination Final\n13\nAny determination by the Board or the Committee (or by any officer of the Company to whom enforcement\nauthority has been delegated) with respect to this Policy shall be final, conclusive and binding on all interested parties.\nOther Laws\nThe Policy is in addition to (and not in lieu of) any right of repayment, forfeiture or right of offset against any\nCovered Employee that is required pursuant to any statutory repayment requirement implemented at any time prior to or\nfollowing the adoption of the Policy. This policy is in addition to, and is not a substitute for, the requirements of Section\n304 of the Sarbanes-Oxley Act of 2002.\nAmendment; Termination\nThe Board or the Committee may amend or terminate this Policy at any time.\nAdopted on February 3, 2015\n14\nEXHIBIT B\nTERMINATION PROTECTION PROVISIONS\nThis is an Exhibit B to, and forms a part of, the Aramark Agreement Relating to Employment and Post-\nEmployment Competition between Stephen Bramlage, Jr. (the “Executive”) and Aramark.\n1. Defined Terms.\nUnless otherwise indicated, capitalized terms used in this Exhibit which are defined in Schedule A shall\nhave the meanings set forth in Schedule A.\n2. Effective Date; Term.\nThis Exhibit shall be effective as of the 6th day of April, 2015 (the “Effective Date) and shall remain in\neffect until the later of three years following a Change of Control and the date that all of the Company’s obligations\nunder this Exhibit have been satisfied in full.\n3. Change of Control Benefits.\nIf Executive’s employment with the Company is terminated at any time within the two years following a\nChange of Control by the Company without Cause, or by Executive for Good Reason (the effective date of either such\ntermination hereafter referred to as the “Termination Date”), Executive shall be entitled to the payments and benefits\nprovided hereafter in this Section 3 and as set forth in this Exhibit. If Executive’s employment by the Company is\nterminated prior to a Change of Control by the Company (i) at the request of a party (other than the Company) involved\nin the Change of Control or (ii) otherwise in connection with or in anticipation of a Change of Control that subsequently\noccurs, Executive shall be entitled to the benefits provided hereafter in this Section 3 and as set forth in this Exhibit, and\nExecutive’s Termination Date shall be deemed to have occurred immediately following the Change of Control. Payment\nof benefits under this Exhibit shall be in lieu of any benefits payable under the Aramark Agreement relating to\nEmployment and Post-Employment Competition of which this Exhibit is a part, except as provided in Section 3(b)\nhereof. Notice of termination without Cause or for Good Reason shall be given in accordance with Section 13, and shall\nindicate the specific termination provision hereunder relied upon, the relevant facts and circumstances and the\nTermination Date.\na. Severance Payments. The Company shall pay Executive cash benefits equal to:\n(1) two times Executive’s Base Salary in effect on the date of the Change of Control or the\nTermination Date, whichever is higher; provided that if any reduction of the Base Salary has occurred, then the Base\nSalary on either date shall be as in effect\n15\nimmediately prior to such reduction, payable in regular installments at such times as would otherwise be the Company’s\nusual payroll practice over a period of two years; and\n(2) the higher of: (A) two times Executive’s Target Bonus in effect on the date of the Change of\nControl or the Termination Date, whichever is greater; or (B) two times Executive’s most recent actual annual bonus,\npayable in either case ratably in regular installments at the same time as payments are made to Executive under Section\n3(a)(1) above; provided that if any reduction of the Target Bonus has occurred, then the Target Bonus on either date shall\nbe as in effect immediately prior to such reduction; and\n(3) Executive’s Target Bonus (as determined in (2), above) multiplied by a fraction, the\nnumerator of which shall equal the number of days Executive was employed by the Company in the Company fiscal year\nin which the Termination Date occurs and the denominator of which shall equal 365, payable as a cash lump sum within\nforty days after the Termination Date.\nb. Continuation of Benefits. Until the second anniversary of the Termination Date, the Company shall at\nits expense provide Executive and Executive’s spouse and dependents with medical, life insurance and disability\ncoverages at the level provided to Executive immediately prior to the Change of Control; provided, however, that if\nExecutive becomes employed by a new employer, continuing coverage from the Company will become secondary to any\ncoverage afforded by the new employer. The Company shall also provide the benefits described in Article 6.A.2.b of the\nManagement Committee Agreement (as defined in Section 8 hereof); provided that such benefits shall continue until the\nsecond anniversary of the Termination Date (instead of the “Severance Pay Period” as defined in the Management\nCommittee Agreement).\nc. Payment of Earned But Unpaid Amounts. Within forty days after the Termination Date, the Company\nshall pay Executive the Base Salary through the Termination Date, any Bonus earned but unpaid as of the Termination\nDate for any previously completed fiscal year of the Company, to the extent not previously deferred under a particular\ndeferred compensation plan, and reimbursement for any unreimbursed expenses properly incurred by Executive in\naccordance with Company policies prior to the Termination Date. Executive shall also receive such employee benefits, if\nany, to which Executive may be entitled from time to time under the employee benefit or fringe benefit plans, policies or\nprograms of the Company, other than any Company severance policy (payments and benefits in this subsection (c), the\n“Accrued Benefits”).\nd. Outplacement Counseling. For the two-year period following the Termination Date (or, if earlier, the\ndate Executive first obtains full-time employment after the Termination Date), the Company shall reimburse all\nreasonable expenses incurred by Executive for professional outplacement services by qualified consultants selected by\nExecutive, in an amount not to exceed 20% of the Executive’s Base Salary in effect on the date of the Change of Control\nor the Termination Date, whichever is higher. All such reimbursement payments shall be made prior to the last day of the\nsecond calendar year following the calendar year in which the Termination Date occurs.\n16\ne. Vesting of Other Benefits. Executive shall be entitled to such accelerated vesting of outstanding\nequity-based awards or retirement plan benefits as is specified under the terms of the applicable plans, agreements and\narrangements.\n4. Mitigation.\nExecutive shall not be required to mitigate damages or the amount of any payment provided for under this\nExhibit by seeking other employment or otherwise, and, subject to Section 3(b), compensation earned from such\nemployment or otherwise shall not reduce the amounts otherwise payable under this Exhibit. No amounts payable under\nthis Exhibit shall be subject to reduction or offset in respect of any claims which the Company (or any other person or\nentity) may have against Executive.\n5. Excise Tax Consequences.\na. In the event it shall be determined that any payment, benefit or distribution (or combination thereof)\nby the Company, any of its affiliates, or one or more trusts established by the Company for the benefit of its employees,\nto or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this\nExhibit, or otherwise) (a “Payment”) is subject to the excise tax imposed by Section 4999 of the Code or any interest or\npenalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and\npenalties, hereinafter collectively referred to as the “Excise Tax”), if the net after-tax amount of such Payments, after\nExecutive has paid all taxes due thereon (including, without limitation, taxes due under Section 4999 of the Code) is less\nthan the net after-tax amount of all such Payments and benefits otherwise due to Executive in the aggregate, if such\naggregate Payments were reduced to an amount equal to 2.99 times the Executive’s “base amount” (as defined in Section\n280G(b)(3) of the Code), then the aggregate amount of the payments and benefits shall be reduced to an amount that will\nequal 2.99 times the Executive’s base amount. To the extent such aggregate parachute payment amounts are required to\nbe so reduced, the parachute payment amounts due to the Executive (but no non-parachute payment amounts) shall be\nreduced in the following order: (i) payments and benefits due under Section 3.a of this Exhibit shall be reduced (if\nnecessary, to zero) with amounts that are payable last reduced first; (ii) payments and benefits due in respect of any\nequity fully valued (without regard to any discounts for present value) for purposes of the calculation to be made under\nSection 280G of the Code for purposes of this Section 5 (the “280G Calculation”) in reverse order of when payable; and\n(iii) payments and benefits due in respect of any options or stock appreciation rights with regard to Holdings equity\nsecurities valued under the 280G Calculation based on time of vesting shall be reduced in an order that is most beneficial\nto the Executive.\nb. All determinations required to be made under this Section 5, including whether and when a cutback is\nto be made, and the assumptions to be utilized in arriving at such determination, shall be made by such nationally\nrecognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”) which shall\nprovide detailed supporting calculations both to the Company and Executive within ten business days of the receipt of\nnotice from Executive that there has been a Payment, or such earlier time as is requested by the Company.\n17\nc. Notwithstanding anything contained in this Agreement or any other agreement between the Executive\nand the Company or any of its subsidiaries to the contrary, the Executive and the Company shall in good faith attempt to\nagree on steps to ensure that no payments to which the Executive would otherwise be entitled to receive pursuant to this\nAgreement or any such other agreement will be “parachute payments” (as defined in Section 280G(b)(2) of the Code).\n6. Termination for Cause.\nNothing in this Exhibit shall be construed to prevent the Company from terminating Executive’s\nemployment for Cause. If Executive is terminated for Cause, the Company shall have no obligation to make any\npayments under this Exhibit, except for the Accrued Benefits.\n7. Indemnification; Director’s and Officer’s Liability Insurance.\nExecutive shall, after the Termination Date, retain all rights to indemnification under applicable law, any\nagreements, (including without limitation, the Stockholders Agreement), or under the Company’s Certificate of\nIncorporation or By-Laws, as they may be amended or restated from time to time. In addition, the Company shall\nmaintain Director ’s and Officer’s liability insurance on behalf of Executive, at the level in effect immediately prior to the\nTermination Date, for the three year period following the Termination Date, and throughout the period of any applicable\nstatute of limitations.\n8. Executive Covenants.\nThis is an Exhibit B to, and forms a part of, the Aramark Agreement Relating to Employment and Post-\nEmployment Competition between Executive and Aramark (the “Management Committee Agreement”). This Exhibit\nshall not diminish in any way Executive’s rights under the terms of such Management Committee Agreement, except\nthat Executive’s receipt of benefits under this Exhibit is contingent upon Executive’s compliance in all material respects\nwith all of the terms and conditions of the Management Committee Agreement.\n9. Costs of Proceedings.\nEach party shall pay its own costs and expenses in connection with any legal proceeding (including\narbitration), relating to the interpretation or enforcement of any provision of this Exhibit, except that the Company shall\npay such costs and expenses, including attorneys’ fees and disbursements, of Executive if Executive prevails on a\nsubstantial portion of the claims in such proceeding.\n10. Assignment.\nExcept as otherwise provided herein, this Exhibit shall be binding upon, inure to the benefit of and be\nenforceable by the Company and Executive and their respective heirs, legal representatives, successors and assigns. If\nthe Company shall be merged into or consolidated\n18\nwith another entity, the provisions of this Exhibit shall be binding upon and inure to the benefit of the entity surviving\nsuch merger or resulting from such consolidation. The Company shall require any successor (whether direct or indirect,\nby purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company, by\nagreement, expressly to assume and agree to perform this Exhibit in the same manner and to the same extent that the\nCompany would be required to perform it if no such succession had taken place. The provisions of this Section 10 shall\ncontinue to apply to each subsequent employer of Executive hereunder in the event of any subsequent merger,\nconsolidation or transfer of assets of such subsequent employer.\n11. Withholding.\nNotwithstanding any other provision of this Exhibit, the Company may, to the extent required by law,\nwithhold applicable federal, state and local income and other taxes from any payments due to Executive hereunder.\n12. Applicable Law.\nThis Exhibit shall be governed by and construed in accordance with the laws of the Commonwealth of\nPennsylvania, without regard to conflicts of laws principles thereof.\n13. Notice.\nFor the purpose of this Exhibit, any notice and all other communication provided for in this Exhibit shall\nbe in writing and shall be deemed to have been duly given when delivered by hand or overnight courier or three days\nafter it has been mailed by United States registered mail, return receipt requested, postage prepaid, addressed to the\nrespective addresses set forth below, or to such other address as either party may have furnished to the other in writing in\naccordance herewith, except that notice of change of address shall be effective only upon receipt.\nIf to the Company:\nAramark\nAramark Tower\n1101 Market Street\nPhiladelphia, Pennsylvania 19107\nAttention: General Counsel\nIf to Executive:\nTo the most recent address of Executive set forth in the personnel records of the Company.\n14. Entire Agreement; Modification.\n19\nThis Exhibit constitutes the entire agreement between the parties and, except as expressly provided herein\nor in Article 6.E of the Management Committee Agreement or in any benefit plan of the Company or of any of its\naffiliates, supersedes all other prior agreements expressly concerning the effect of a Change of Control occurring after\nthe date of this Agreement with respect to the relationship between the Company and Executive. This Exhibit is not, and\nnothing herein shall be deemed to create, a contract of employment between the Company and Executive. This Exhibit\nmay be changed only by a written agreement executed by the Company and Executive.\n15. Severability.\nIn the event any one or more of the provisions of this Exhibit shall be or become invalid, illegal or\nunenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected\nthereby.\n20\nSchedule A\nCERTAIN DEFINITIONS\nAs used in this Exhibit, and unless the context requires a different meaning, the following terms, when\ncapitalized, have the meaning indicated:\n1.\n“Act” means the Securities Exchange Act of 1934, as amended.\n2.\n“Affiliate” shall have the meaning set forth in the Stockholders Agreement.\n3.\n“Base Salary” means Executive’s annual rate of base salary in effect on the date in question.\n4.\n“Bonus” means the amount payable to Executive under the Company’s applicable annual bonus plan with\nrespect to a fiscal year of the Company.\n5.\n“Cause” means “cause” as defined in the Management Committee Agreement of which this Schedule A\nforms a part.\n6.\n“Change of Control” means the first to occur of any of the following:\n(i) The acquisition by any individual entity or group, within the meaning of Section 13(d)(3) or 14(d)(2)\nof the Exchange Act, other than the Investor Groups and their Affiliates (the “Permitted Holders”), directly or indirectly,\nof beneficial ownership of equity securities of the Company representing more than 50% of the voting power of the then-\noutstanding equity securities of the Company entitled to vote generally in the election of directors (the “Company Voting\nSecurities”); provided, however, that for purposes of this subsection (i), the following shall not constitute a Change of\nControl: (A) any acquisition by the Company or any Sponsor Stockholder, (B) any acquisition by any employee benefit\nplan (or related trust) sponsored or maintained by the Company or any Subsidiary, or (C) any acquisition by any Person\npursuant to a transaction which complies with clauses (A) and (B) of subsection (ii) below; or\n(ii) The consummation of a reorganization, merger or consolidation or sale or other disposition of all or\nsubstantially all of the assets of the Company or the purchase of assets or stock of another entity (a “Business\nCombination”), in each case, unless immediately following such Business Combination, (A) all or substantially all of the\nbeneficial owners of the Company Voting Securities immediately prior to such Business Combination beneficially own\nmore than 50% of the then-outstanding combined voting power of the then-outstanding securities entitled to vote\ngenerally in the election of directors of the entity resulting from such Business Combination in substantially the same\nproportion (relative to each other) as their ownership immediately prior to such Business Combination of the Company\nVoting Securities, and (B) no Person (excluding the Permitted Holders) beneficially owns, directly or indirectly, more\nthan a majority of the combined voting power of the then-outstanding voting securities of such entity\n21\nexcept to the extent that such ownership of the Company existed prior to the Business Combination; or\n(iii) A majority of the members of the Company’s Board of Directors are replaced during any 12-month\nperiod by directors whose appointment or election is not endorsed by a majority of the current members of the\nCompany’s Board of Directors before such replacement or is not contemplated by the Stockholders Agreement as in\neffect on the date hereof.\nNotwithstanding paragraphs (i) through (iii) above, in no event will a Change of Control be deemed to\noccur if the Permitted Holders maintain a direct or indirect Controlling Interest in the Company. A “Controlling Interest”\nin an entity shall mean beneficial ownership of more than 50% of the voting power of the outstanding equity securities of\nthe entity.\n7.\n“Code” means the Internal Revenue Code of 1986, as amended.\n8.\n“Company” means Aramark or any of its parents and any successor or successors thereto.\n9.\n“Good Reason” means any of the following actions on or after a Change of Control, without Executive’s\nexpress prior written approval, other than due to Executive’s Permanent Disability or death:\n(a) any decrease in Base Salary or Target Bonus;\n(b) any decrease in Executive’s pension benefit opportunities or any material diminution in the\naggregate employee benefits, in each case, afforded to the Executive immediately prior to the Change of Control, but not\nincluding any such decrease or diminution that is inadvertent and that is cured within 30 days following written notice of\nsuch decrease or diminution by Executive to the Company;\n(c) any diminution in Executive’s title or reporting relationship, or substantial diminution in duties or\nresponsibilities (other than solely as a result of a Change of Control in which the Company immediately thereafter is no\nlonger publicly held); or\n(d) any relocation of Executive’s principal place of business of 35 miles or more, other than normal\ntravel consistent with past practice.\nExecutive shall have twelve months from the time Executive first becomes aware of the existence\nof Good Reason to resign for Good Reason.\nThe Executive must provide notice to the Company of the existence of the condition described above within a period not\nto exceed 90 days of the initial existence of the condition, upon the notice of which the Company shall have a period of\n30 days during which it may remedy the condition and not be required to pay the amount.\n22\n10.\n“Permanent Disability” means “permanent disability” as defined in the Company’s long-term disability plan\nas in effect from time to time, or if there shall be no plan, the inability of Executive to perform in all material respects\nExecutive’s duties and responsibilities to the Company or any affiliate for a period of six (6) consecutive months or for\nan aggregate of nine (9) months in any twenty-four (24) consecutive month period by reason of a physical or mental\nincapacity.\n11.\n“Permitted Holder” shall have the same meaning as set forth in the Stockholders Agreement.\n12.\n“Target Bonus” means the target Bonus established for Executive in respect of any given year, whether\nexpressed as a percentage of Base Salary or a dollar amount.\n23	EX-10.2 3 ex102elcagreement.htm EXHIBIT 10.2\nExhibit 10.2\nARAMARK AGREEMENT RELATING TO EMPLOYMENT AND\nPOST-EMPLOYMENT COMPETITION\nThis Agreement is between the undersigned individual (“Employee”) and Aramark.\nRECITALS\nWHEREAS, Aramark is a leading provider of managed services to business and industry, private and public\ninstitutions, and the general public, in the following business groups: food and support services and uniform and career\napparel;\nWHEREAS, Aramark has a proprietary interest in its business and financial plans and systems, methods of\noperation and other secret and confidential information, knowledge and data (“Proprietary Information”) which includes,\nbut is not limited to, all confidential, proprietary or non-public information, ideas and concepts; annual and strategic\nbusiness plans; financial plans, reports and systems including, profit and loss statements, sales, accounting forms and\nprocedures and other information regarding costs, pricing and the financial condition of Aramark and its business\nsegments and groups; management development reviews, including information regarding the capabilities and\nexperience of Aramark employees; intellectual property, including patents, inventions, discoveries, research and\ndevelopment, compounds, recipes, formulae, reports, protocols, computer software and databases; information regarding\nAramark’s relationships with its clients, customers, and suppliers and prospective clients, partners, customers and\nsuppliers; policy and procedure manuals, information regarding materials and documents in any form or medium\n(including oral, written, tangible, intangible, or electronic) concerning any of the above, or any past, current or future\nbusiness activities of Aramark that is not publicly available; compensation, recruiting and training, and human resource\npolicies and procedures; and data compilations, research, reports, structures, compounds, techniques, methods,\nprocesses, and know-how;\nWHEREAS, all such Proprietary Information is developed at great expense to Aramark and is considered by\nAramark to be confidential trade secrets;\nWHEREAS, Employee, as a senior manager, will have access to Aramark’s Proprietary Information, directly in\nthe course of Employee’s employment, and indirectly through interaction with and presentations by other Aramark\nsenior managers at the Executive Leadership Institute, Executive Leadership Council meetings, Presidents’ Council\nmeetings and the like;\nWHEREAS, Aramark will introduce Employee to Aramark clients, customers, suppliers and others, and will\nencourage, and provide resources for, Employee to develop professional relationships with Aramark’s clients, customers,\nsuppliers and others;\nWHEREAS, Aramark will provide specialized training and skills to Employee in connection with the\nperformance of Employee’s duties at Aramark which training involves the disclosure by Aramark to Employee of\nProprietary Information;\nWHEREAS, Aramark will be vulnerable to unfair post-employment competition by Employee because\nEmployee will have access to and knowledge of Aramark’s Proprietary Information, will have a personal relationship\nwith Aramark’s clients, customers, suppliers and others, and will generate good will which Employee acknowledges\nbelongs to Aramark;\nNOW, THEREFORE, in consideration of Employee’s employment with Aramark, the opportunity to receive the\ngrant of options to purchase common stock of Aramark, severance and other post-employment benefits provided for\nherein (including pursuant to Exhibit B hereto to which Employee acknowledges Employee is not otherwise entitled),\nand for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Employee\nagrees to enter into this Agreement with Aramark as a condition of employment pursuant to which Aramark will limit\nEmployee’s right to compete against Aramark during and following termination of employment on the terms set forth in\nthis Agreement. Intending to be legally bound, the parties agree as follows:\nARTICLE 1\nNON-DISCL.OSURE AND NON-DISPARAGEMENT\nEmployee shall not, during or after termination of employment, directly or indirectly, in any manner utilize or\ndisclose to any person, firm, corporation, association or other entity, except where required by law, any Proprietary\nInformation which is not generally known to the public, or has not otherwise been disclosed or recognized as standard\npractice in the industries in which Aramark is engaged. Employee shall, during and after termination of employment,\nrefrain from making any statements or comments of a defamatory or disparaging nature to any third party regarding\nAramark, or any of Aramark’s officers, directors, personnel, policies or products, other than to comply with law.\nARTICLE 2\nNON-COMPETITION\nA. Subject to Article 2. B. below, Employee, during Employee’s period of employment with Aramark, and for a\nperiod of two years following the voluntary or involuntary termination of employment, shall not, without Aramark’s\nwritten permission, which shall be granted or denied in Aramark’s sole discretion, directly or indirectly, associate with\n(including, but not limited to, association as a sole proprietor, owner, employer, partner, principal, investor, joint\nventurer, shareholder, associate, employee, member, consultant, contractor or otherwise), or acquire or maintain\nownership interest in, any Business which is competitive with that conducted by or developed for later implementation\nby Aramark at any time during the term of Employee’s employment, provided, however, if Employee’s employment is\ninvoluntarily terminated by Aramark for any reason other than Cause (as defined herein), or (ii) terminated by Employee\nfor Good Reason (as defined in Exhibit B) at any time following a Change of Control (as defined in Exhibit B) occurring\nafter the date of this Agreement, then the term of the non-competition provision set forth herein will be modified to be\neighteen months following such termination of employment. For purposes of this Agreement, “Business” shall be\ndefined as a person, corporation, firm, LLC, partnership, joint venture or other entity. Nothing in the foregoing shall\nprevent Employee from investing in a Business that is or becomes publicly traded, if Employee’s ownership is as a\npassive investor of less than 1% of the outstanding publicly traded stock of the Business.\nB. The provision set forth in Article 2.A above, shall apply to the full extent permitted by law (i) in all fifty\nstates, and (ii) each foreign country, possession or territory in which Aramark may be engaged in, or have plans to\nengage in, business (x) during Employee’s period of employment, or (y) in the case of a termination of employment, as\nof the effective date of such termination or at any time during the twenty-four month period prior thereto.\nC. Employee acknowledges that these restrictions are reasonable and necessary to protect the business interests\nof Aramark, and that enforcement of the provisions set forth in this Article 2 will not unnecessarily or unreasonably\nimpair Employee’s ability to obtain other employment following the termination (voluntary or involuntary) of\nEmployee’s employment with Aramark. Further, Employee acknowledges that the provisions set forth in this Article 2\nshall apply if Employee’s employment is involuntarily terminated by Aramark for Cause; as a result of the elimination of\nemployee’s position; for performance-related issues; or for any other reason or no reason at all.\nARTICLE 3\nNON-SOLICITATION\nDuring the period of Employee’s employment with Aramark and for a period of two years following the\ntermination of Employee’s employment, regardless of the reason for termination, Employee shall not, directly or\nindirectly: (i) induce or encourage any employee of Aramark to leave the employ of Aramark, (ii) hire any individual\nwho was an employee of Aramark as of the date of Employee’s termination of employment or within a six month period\nprior to such date, or (iii) induce or encourage any customer, client, supplier or other business relation of Aramark to\ncease or reduce doing business with Aramark or in any way interfere with the relationship between any such customer,\nclient, supplier or other business relation and Aramark.\nARTICLE 4\nDISCOVERIES AND WORKS\nEmployee hereby irrevocably assigns, transfers, and conveys to Aramark to the maximum extent permitted by\napplicable law Employee’s right, title and interest now or hereinafter acquired, in and to all Discoveries and Works (as\ndefined below) created, invented, designed, developed, improved or contributed to by Employee, either alone or jointly\nwith others, while employed by Aramark and within the scope of Employee’s employment and/or with the use of\nAramark’s resources. The terms “Discoveries and Works” include all works of authorship, inventions, intellectual\nproperty, materials, documents, or other work product (including, without limitation, Proprietary Information, patents\nand patent applications, patentable inventions, research, reports, software, code, databases, systems, applications,\npresentations, textual works, graphics and audiovisual materials). Employee shall have the burden of proving that any\nmaterials or works created, invented, designed, developed, contributed to or improved by\nEmployee that are implicated by or relevant to employment by Aramark are not implicated by this provision. Employee\nagrees to (i) keep accurate records and promptly notify, make full disclosure to, and execute and deliver any documents\nand to take any further actions requested by Aramark to assist it in validating, effectuating, maintaining, protecting,\nenforcing, perfecting, recording, patenting or registering any of its rights hereunder, and (ii) renounce any and all claims,\nincluding, without limitation, claims of ownership and royalty, with respect to all Discoveries and Works and all other\nproperty owned or licensed by Aramark. Any Discoveries and Works that, within six months after the termination of\nEmployee’s employment with Aramark, are made, disclosed, reduced to a tangible or written form or description, or are\nreduced to practice by Employee and which pertain to the business carried on or products or services being sold or\ndeveloped by Aramark at the time of such termination shall, as between Employee and Aramark, be presumed to have\nbeen made during such employment with Aramark. Employee acknowledges that, to the fullest extent permitted by law,\nall Discoveries and Works shall be deemed “works made for hire” under the Copyright Act of 1976, as amended, 17\nU.S.C. Section 101. Employee hereby grants Aramark a perpetual, nonexclusive, royalty-free, worldwide, assignable,\nsublicensable license under all rights and intellectual property rights (including patent, industrial property, copyright,\ntrademark, trade secret, unfair competition and related laws) in any Works and Discoveries, for all purposes in\nconnection with Aramark’s current and future business, that Employee has created, invented, designed, developed,\nimproved or contributed to prior to Employee’s employment with Aramark that are relevant to or implicated by such\nemployment (“Prior Works™). Any Prior Works are disclosed by Employee in Schedule 1.\nARTICLE 5\nREMEDIES\nEmployee acknowledges that in the event of any violation by Employee of the provisions set forth in Articles 1,\n2, 3 or 4 above, Aramark will sustain serious, irreparable and substantial harm to its business, the extent of which will be\ndifficult to determine and impossible to fully remedy by an action at law for money damages. Accordingly, Employee\nagrees that, in the event of such violation or threatened violation by Employee, Aramark shall be entitled to an injunction\nbefore trial before any court of competent jurisdiction as a matter of course upon the posting of not more than a nominal\nbond, in addition to all such other legal and equitable remedies as may be available to Aramark. If Aramark is required\nto enforce the provisions set forth in Articles 2 and 3 above by seeking an injunction, Employee agrees that the relevant\ntime periods set forth in Articles 2 and 3 shall commence with the entry of the injunction. Employee further agrees that,\nin the event any of the provisions of this Agreement are determined by a court of competent jurisdiction to be invalid,\nillegal, or for any reason unenforceable as written, such court shall substitute a valid provision which most closely\napproximates the intent and purpose of the invalid provision and which would be enforceable to the maximum extent\npermitted by law.\nARTICLE 6\nPOST-EMPL.OYMENT BENEFITS\nA. If Employee’s employment is terminated by Aramark for any reason other than Cause, Employee shall be\nentitled to the following post-employment benefits:\n1. Severance Pay: Employee shall receive severance payments equivalent to Employee’s monthly base\nsalary as of the effective date of termination for twelve (12) months, should the Employee have less than one (1) year of\ncontinuous service with Aramark completed from the date of hire; and for eighteen (18) months, should the Employee\nhave one (1) year or more of continuous service with Aramark completed from the date of hire. Severance payments\nshall commence with the Employee’s effective date of termination and shall be made in accordance with Aramark’s\nnormal payroll cycle. The period during which Employee receives severance payments shall be referred to as the\n“Severance Pay Period.”\n2. Other Post-Employment Benefits\n(a) Basic Group medical and life insurance coverages shall continue under then prevailing terms\nduring the Severance Pay Period; provided, however, that if Employee becomes employed by a new employer during\nthat period, continuing coverage from Aramark will become secondary to any coverage afforded by the new employer.\nEmployee’s share of the premiums will be deducted from Employee’s severance payments. Basic Group medical\ncoverage provided during such period shall be applied against Aramark’s obligation to continue group medical coverage\nunder the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”). Upon termination of basic group\nmedical and life coverages, Employee may convert such coverages to individual policies to the extent allowable under\nthe terms of the plans providing such coverages.\n \n(b) If, at the time of termination, Aramark is providing Employee with a leased vehicle, then\nAramark will continue to provide the leased vehicle through the Severance Pay Period under the same terms and\nconditions as in effect at the time of the Employee’s termination. At the expiration of the Severance Pay Period,\nEmployee must return the leased vehicle to Aramark unless the Employee elects to purchase the vehicle in accordance\nwith the Executive Leadership Council policy then in effect. If Employee is receiving a car allowance at the time of the\nEmployee’s termination, such car allowance will continue to be paid through the Severance Pay Period. At the expiration\nof the Severance Pay Period, the Employee will cease being paid a car allowance.\n(c) Employee’s eligibility to participate in all other benefit and compensation plans, including,\nbut not limited to the Management Incentive Bonus, Long Term Disability, any nonqualified retirement plans, and any\nstock option or ownership plans, shall terminate as of the effective date of Employee’s termination unless provided\notherwise under the terms of a particular plan, provided, however, that participation in plans and programs made\navailable solely to Executive Leadership Council members, including, but not limited to the Executive Leadership\nCouncil Medical Plan, shall cease as of the effective date of termination or the date Employee’s Executive Leadership\nCommittee membership ceases, whichever occurs\n \nfirst. Employee, however, shall have certain rights to continue the Executive Leadership Council Medical Plan under\nCOBRA.\nB. Termination for “Cause” shall be defined as termination of employment due to: (i) conviction or plea of\nguilty or nolo contendere to a felony, (ii) intentional fraud or dishonesty with respect to Aramark that causes material and\ndemonstrable harm to Aramark, (iii) willful and continuous failure to perform lawfully assigned duties that are consistent\nwith the Employee’s position with Aramark, (iv) willful violation of Aramark’s Business Conduct Policy that causes\nmaterial harm to Aramark or its business reputation, or (v) intentionally working against the best interests of Aramark; in\nany case of conduct described in clause (ii)-(v), only if such conduct continues beyond ten business days after receipt by\nthe Employee from Aramark of a written demand to cure such conduct.\nC. If Employee is terminated by Aramark for reasons other than Cause, Employee will receive the severance\npayments and other post-employment benefits during the Severance Pay Period even if Employee commences other\nemployment during such period provided such employment does not violate the terms of Article 2, and subject to the\nprovisions of Article 6.E.\nNotwithstanding anything else contained in this Article 6 to the contrary, Aramark may choose not to commence\n(or to discontinue) providing any payment or benefit unless and until Employee executes and delivers, without\nrevocation, a release in form reasonably acceptable to Aramark, as described in Article 6.E within 60 days following\nEmployee’s termination of employment; provided, however, that subject to receipt of such executed release, Aramark\nshall commence providing such payments and benefits within 75 days following the date of termination of Employee’s\nemployment.\nD. In addition to the remedies set forth in Article 5, Aramark reserves the right to terminate all severance\npayments and other post-employment benefits if Employee violates the covenants set forth in Articles 1, 2, 3 or 4 above\nin any material respect.\nE. Employee’s receipt of severance and other post-employment benefits under this Agreement is contingent on\n(i) Employee’s execution of a release in a form reasonably acceptable to Aramark, except that such release shall not\ninclude any claims by Employee to enforce Employee’s rights under, or with respect to, (1) this Agreement (including\nthe attached Exhibit B), (2) the Certificate of Incorporation and By-laws of Aramark, (3) any indemnification agreement\nbetween the Employee and Aramark, (4) any Stockholders Agreement among Aramark and the holders party thereto (the\n“Stockholders Agreement”) and any other agreement referenced therein, or (5) any Aramark benefit plan pursuant to its\nterms, and (ii) the expiration of the applicable Age Discrimination in Employment Act revocation period without such\nrelease being revoked by Employee.\nARTICLE 7\nTERM OF EMPLOYMENT\nEmployee acknowledges that Aramark has the right to terminate Employee’s employment at any time for any\nreason whatsoever, provided, however, that any termination by Aramark for\n \nreasons other than Cause shall result in the severance and the post-employment benefits described in Article 6 above, to\nbecome due in accordance with the terms of this Agreement subject to the conditions set forth in this Agreement.\nEmployee further acknowledges that the severance payments made and other benefits provided by Aramark are in full\nsatisfaction of any obligations Aramark may have resulting from Aramark’s exercise of its right to terminate Employee’s\nemployment, except for those obligations which are intended to survive termination such as the payments to be made\npursuant to retirement plans, deferred compensation plans, conversion of insurance, and the plans and other documents\nand agreements referred to in Article 6.E above.\nARTICLE 8\nMISCELIL.ANEOUS\nA. As used throughout this Agreement, Aramark includes Aramark and its subsidiaries and affiliates or any\ncorporation, joint venture, or other entity in which Aramark or its subsidiaries or affiliates has an equity interest in excess\nof ten percent (10%).\nB. Notwithstanding anything to the contrary contained herein, Employee shall, after termination of employment\nfor Good Reason by Employee or other than for Cause by Aramark, retain all rights to indemnification under applicable\nlaw or any agreement (including, without limitation, the Stockholders Agreement), or under Aramark’s or any parent\ncorporation’s Certificate of Incorporation or By-Laws at a level that is at least as favorable to the Employee as that\ncurrently provided. In addition, the Company shall maintain Director’s and Officer’s liability insurance on behalf of\nEmployee, at the level in effect immediately prior to such date of termination, for the three-year period following the\ndate of termination, and throughout the period of any applicable statute of limitations.\nC. Inthe event that it is reasonably determined by Aramark that, as a result of the deferred compensation tax\nrules under Section 409A of the Internal Revenue Code of 1986, as amended (and any related regulations or other\npronouncements thereunder) (“the Deferred Compensation Tax Rules”), any of the payments and benefits that Employee\nis entitled to under the terms of this Agreement (including under Exhibit B) may not be made at the time contemplated\nby the terms hereof or thereof, as the case may be, without causing Employee to be subject to tax under the Deferred\nCompensation Tax Rules, Aramark shall, in lieu of providing such payment or benefit when otherwise due under this\nAgreement, instead provide such payment or benefit on the first day on which such provision would not result in\nEmployee incurring any tax liability under the Deferred Compensation Tax Rules; which day, if Employee is a “specified\nemployee” within the meaning of the Deferred Compensation Tax Rules, shall be the first day of the seventh month\nfollowing the date of Employee’s termination of employment (or the earliest date as is permitted under the Deferred\nCompensation Tax Rules, without any accelerated or additional tax); provided, further, that to the extent that the amount\nof payments due under Article 6.A (or Exhibit B, as applicable) are not subject to the Deferred Compensation Tax Rules\nby virtue of the application of Treas. Reg. Sec. 1.409A-1(b)(9)(iii)(A), such payments may be made prior to the\nexpiration of such six-month period. In addition, if the commencement of any payment or benefit provided under Article\n6 that constitutes “deferred compensation”\nunder the Deferred Compensation Tax Rules could, by application of the terms conditioning such payment or benefit\nupon the execution and non-revocation of a release set forth in Article 6, occur in one of two taxable years, then the\ncommencement of such payment shall begin on the first payroll date occurring in January of such second taxable year.\nTo the extent any reimbursements or in-kind benefits due to Employee under this Agreement constitute “deferred\ncompensation” under the Deferred Compensation Tax Rules, any such reimbursements or in-kind benefits shall be paid\nto Employee in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). Additionally, to the extent that\nEmployee's receipt of any in-kind benefits from Aramark or its affiliates must be delayed pursuant to this Section due to\nEmployee’s status as a “specified employee,” Employee may elect to instead purchase and receive such benefits during\nthe period in which the provision of benefits would otherwise be delayed by paying the Aramark (or its affiliates) for the\nfair market value of such benefits (as determined by Aramark in good faith) during such period. Any amounts paid by\nEmployee pursuant to the preceding sentence shall be reimbursed to Employee (with interest thereon) as described above\non the date that is the first day of the seventh month following Employee’s separation from service. In the event that any\npayments or benefits that Aramark would otherwise be required to provide under this Agreement cannot be provided in\nthe manner contemplated herein without subjecting Employee to tax under the Deferred Compensation Tax Rules,\nAramark shall provide such intended payments or benefits to Employee in an alternative manner that conveys an\nequivalent economic benefit to Employee as soon as practicable as may otherwise be permitted under the Deferred\nCompensation Tax Rules. Without limiting the generality of the foregoing, Employee may notify Aramark if he believes\nthat any provision of this Agreement (or of any award of compensation including equity compensation or benefits)\nwould cause Employee to incur any additional tax under Section 409A and, if Aramark concurs with such belief after\ngood faith review or Aramark independently makes such determination, Aramark shall, after consulting with Employee,\nuse reasonable best efforts to reform such provision to comply with Section 409A through good faith modifications to\nthe minimum extent reasonably appropriate to conform the Deferred Compensation Tax Rules; provided that neither\nAramark nor any of its employees or representatives shall have any liability to Employee with respect thereto. For\npurposes of the Deferred Compensation Tax Rules, each payment made under this Agreement (including, without\nlimitation, each installment payment due under Article 6.A and Exhibit B, as applicable) shall be designated as a\n“separate payment” within the meaning of the Deferred Compensation Tax Rules, and references herein to Employee’s\n“termination of employment” shall refer to Employee’s separation from service with Aramark and its affiliates within the\nmeaning of the Deferred Compensation Tax Rules.\nD. In the event of a Change of Control as defined in the attached Exhibit B, the provisions of Exhibit B shall\napply to Employee. Further, pursuant to the Deferred Compensation Tax Rules, Aramark, in its discretion, is permitted to\naccelerate the time and form of payments provided under the deferred compensation arrangement set forth in this\nAgreement (including Exhibit B), where the right to the payment arises due to a termination of the arrangement within\nthe 30 days preceding or the 12 months following a change in control event (as defined in the Deferred Compensation\nTax Rules).\nE. If Employee’s employment with Aramark terminates solely by reason of a transfer of stock or assets of, or a\nmerger or other disposition of, a subsidiary of Aramark (whether direct or indirect), such termination shall not be\ndeemed a termination of employment by Aramark for purposes of this Agreement, provided that Aramark requires the\nsubsequent employer, by agreement, to expressly assume and agree to perform this Agreement in the same manner and\nto the same extent that Aramark would be required to perform it if no such transaction had taken place. In such case,\nEmployee acknowledges and agrees that Aramark may assign this Agreement and Aramark’s rights hereunder, and\nparticularly Articles 1, 2, 3 and 4, in its sole discretion and without advance approval by Employee. In such case,\nEmployee agrees that Aramark may assign this Agreement and all references to “Aramark” contained in this Agreement\nshall thereafter be deemed to refer to the subsequent employer.\nF. Employee shall not be required to mitigate damages or the amount of any payment provided for under this\nAgreement by seeking other employment or otherwise.\nG. This Agreement shall supersede and substitute for any previous post-employment or severance agreement\nbetween Employee and Aramark.\nH. Inthe event any one or more of the provisions of this Agreement shall be or become invalid, illegal or\nunenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall\nnot be affected thereby.\nI. The terms of this Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, without\nregard to conflicts of laws principles thereof. For purposes of any action or proceeding, Employee irrevocably submits to\nthe non-exclusive jurisdiction of the courts of Pennsylvania and the courts of the United States of America located in\nPennsylvania for the purpose of any judicial proceeding arising out of or relating to this Agreement, and acknowledges\nthat the designated fora have a reasonable relation to the Agreement and to the parties’ relationship with one another.\nNotwithstanding the provisions of this Article 8.1, Aramark may, in its discretion, bring an action or special proceeding\nin any court of competent jurisdiction for the purpose of seeking temporary or preliminary relief pending resolution of a\ndispute.\nJ.  Employee expressly consents to the application of Article 8.1 to any judicial action or proceeding arising out\nof or relating to this Agreement. Aramark shall have the right to serve legal process upon Employee in any manner\npermitted by law. In addition, Employee irrevocably appoints the Executive Vice President, Human Resources of\nAramark (or any successor) as Employee’s agent for service of legal process in connection with any such action or\nproceeding and Employee agrees that service of legal process upon such agent, who shall promptly advise Employee of\nany such service of legal process at the address of Employee then in the records of Aramark, shall be deemed in every\nrespect effective service of legal process upon Employee in any such action or proceeding.\nK. Employee hereby waives, to the fullest extent permitted by applicable law, any objection that Employee now\nor hereafter may have to personal jurisdiction or to the laying of venue of any action or proceeding brought in any court\nreferenced in Article 8.1 and hereby agrees not to plead or claim the same.\nL. Notwithstanding any other provision of this Agreement, Aramark may, to the extent required by law,\nwithhold applicable federal, state and local income and other taxes from any payments due to Employee hereunder.\nM. Employee and Aramark acknowledge that for purposes of Article 6, Employee’s last hire date with Aramark\nis April 6, 2015.\nN. Employee expressly acknowledges and agrees that the Incentive Compensation Recoupment Policy set forth\nin Exhibit to this Agreement is binding on Employee and that Employee is a Covered Employee as defined in that policy\nO. This Agreement shall be binding upon, inure to the benefit of and be enforceable by Aramark and Employee,\nand their respective heirs, legal representatives, successors and assigns. Employee acknowledges and agrees that this\nAgreement, including its provisions on post-employment restrictions, is specifically assignable by Aramark. Employee\nhereby consents to such future assignment and agrees not to challenge the validity of such future assignment.\nIN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have caused this Agreement to\nbe signed this 14th date of March, 2015.\n/s/ Stephen P. Bramlage, Jr. Aramark\nStephen Bramlage, Jr. By: /s/ Lynn B. McKee\n10\nSchedule 1\nPrior Works"\n11\nExhibit A\nAramark\nIncentive Compensation Recoupment Policy\nOverview\nAramark (the “Company”) has adopted this incentive compensation recoupment policy (the “Policy”) in order to\nensure that incentive compensation is paid based on accurate financial data. In the event of an accounting restatement as\ndescribed below the Company may seek recovery of incentive compensation that would have not been paid if the correct\nperformance data had been used to determine the amount payable. The Board of Directors (the “Board”) and the\nCompensation and Human Resources Committee of the Board (the “Committee”) shall have full authority to interpret\nand enforce the Policy.\nCovered Employees\nThe Policy applies to “Covered Employees” who are: the executive officers of the Company and its subsidiaries\n(as defined under Rule 3b-7 under the Securities Exchange Act of 1934, as amended) and all other direct reports of the\nChief Executive Officer of the Company.\nIncentive Compensation\nFor purposes of this Policy, “incentive compensation” means cash performance bonuses and incentive stock\nawards including performance stock units paid, granted, vested or accrued under any Company plan or agreement in the\nform of cash or Company common stock whose payment or vesting is based on the achievement of one or more financial\nmetrics.\nIf the Board or the Committee determines that (i) incentive compensation of a Covered Employee was overpaid,\nin whole or in part, as a result of a restatement of the reported financial or operating results of the Company due to\nmaterial non-compliance with financial reporting requirements under the securities laws (unless due to a change in\naccounting policy or applicable law) and (ii) such Covered Employee has engaged in misconduct that causes or\ncontributed, directly or indirectly, to the non-compliance that resulted in the obligation to restate the Company’s reported\nfinancial or operating results, the Board or the Committee will determine, in its discretion, whether the Company shall,\nto the extent permitted by applicable law, seek to recover or cancel the incentive compensation granted, paid to, issued or\nvested in excess of the incentive compensation that would have been paid or granted to such Covered Employee or the\nincentive compensation in which such Covered Employee would have vested had the actual payment, granting or vesting\nbeen calculated based on the accurate data or restated results, as applicable (the “Overpayment”).\n12\nForms of Recovery\nIf the Board or the Committee determines to seek recovery for the Overpayment, the Company shall have the\nright to demand that the Covered Employee reimburse the Company for the Overpayment. The Board or the Committee\nshall have the discretion to determine the form, amount and timing of any repayment. To the extent the Covered\nEmployee does not make reimbursement of the Overpayment, the Company shall have the right to enforce the repayment\nthrough the reduction or cancellation of outstanding and future incentive compensation and shall also have the right to\nsue for repayment. To the extent any shares have been issued under vested awards or such shares have been sold by the\nCovered Employee, the Company shall have the right to cancel any other outstanding stock-based awards with a value\nequivalent to the Overpayment, as determined by the Board or the Committee.\nTime Period for Overpayment Review\nThe Board or the Committee may make determinations of whether the Company shall seek recovery or\ncancellation of the Overpayment at any time through the end of the third fiscal year following the year for which the\ninaccurate performance criteria were measured; provided, that if steps have been taken within such period to restate the\nCompany’s financial or operating results, the time period shall be extended until such restatement is completed. For\nillustrative purposes only, this means that if incentive compensation is paid in late calendar 2015 for performance metrics\nbased on fiscal year 2015 performance, the compensation shall be subject to review for Overpayment until the end of the\n2018 fiscal year. Notwithstanding the above, if the Board or the Committee determines that any Covered Employee\nengaged in fraud or misconduct, the Board or the Committee shall be entitled to seek recovery or cancellation of the\nOverpayment with respect to such Covered Employee for a period of six years after the act of fraud or misconduct, as\nsuch time period is calculated by the Board or Committee.\n \nNo Additional Payments\nIn no event shall the Company be required to award Covered Employees an additional payment if the restated or\naccurate financial results would have resulted in a higher incentive compensation payment.\nApplicability,\nThis Policy applies to all incentive compensation, granted, paid or credited after February 3, 2015, except to the\nextent prohibited by applicable law or any other legal obligation of the Company. Application of the Policy does not\npreclude the Company from taking any other action to enforce a Covered Employee’s obligations to the Company,\nincluding termination of employment or institution of civil or criminal proceedings or any other remedies that may be\navailable to the Company, including such remedies contained, without limitation, in the Company’s equity grant and\nemployment agreements, whether or not there is a restatement.\nCommittee Determination Final\n13\nAny determination by the Board or the Committee (or by any officer of the Company to whom enforcement\nauthority has been delegated) with respect to this Policy shall be final, conclusive and binding on all interested parties.\nOther Laws\nThe Policy is in addition to (and not in lieu of) any right of repayment, forfeiture or right of offset against any\nCovered Employee that is required pursuant to any statutory repayment requirement implemented at any time prior to or\nfollowing the adoption of the Policy. This policy is in addition to, and is not a substitute for, the requirements of Section\n304 of the Sarbanes-Oxley Act of 2002.\nAmendment; Termination\nThe Board or the Committee may amend or terminate this Policy at any time.\nAdopted on February 3, 2015\n14\nEXHIBIT B\nTERMINATION PROTECTION PROVISIONS\nThis is an Exhibit B to, and forms a part of, the Aramark Agreement Relating to Employment and Post-\nEmployment Competition between Stephen Bramlage, Jr. (the “Executive”) and Aramark.\n1. Defined Terms.\nUnless otherwise indicated, capitalized terms used in this Exhibit which are defined in Schedule A shall\nhave the meanings set forth in Schedule A.\n2. Effective Date; Term.\n \nThis Exhibit shall be effective as of the 6th day of April, 2015 (the “Effective Date) and shall remain in\neffect until the later of three years following a Change of Control and the date that all of the Company’s obligations\nunder this Exhibit have been satisfied in full.\n3. Change of Control Benefits.\nIf Executive’s employment with the Company is terminated at any time within the two years following a\nChange of Control by the Company without Cause, or by Executive for Good Reason (the effective date of either such\ntermination hereafter referred to as the “Termination Date”), Executive shall be entitled to the payments and benefits\nprovided hereafter in this Section 3 and as set forth in this Exhibit. If Executive’s employment by the Company is\nterminated prior to a Change of Control by the Company (i) at the request of a party (other than the Company) involved\nin the Change of Control or (ii) otherwise in connection with or in anticipation of a Change of Control that subsequently\noccurs, Executive shall be entitled to the benefits provided hereafter in this Section 3 and as set forth in this Exhibit, and\nExecutive’s Termination Date shall be deemed to have occurred immediately following the Change of Control. Payment\nof benefits under this Exhibit shall be in lieu of any benefits payable under the Aramark Agreement relating to\nEmployment and Post-Employment Competition of which this Exhibit is a part, except as provided in Section 3(b)\nhereof. Notice of termination without Cause or for Good Reason shall be given in accordance with Section 13, and shall\nindicate the specific termination provision hereunder relied upon, the relevant facts and circumstances and the\nTermination Date.\na. Severance Payments. The Company shall pay Executive cash benefits equal to:\n(1) two times Executive’s Base Salary in effect on the date of the Change of Control or the\nTermination Date, whichever is higher; provided that if any reduction of the Base Salary has occurred, then the Base\nSalary on either date shall be as in effect\n \n15\nimmediately prior to such reduction, payable in regular installments at such times as would otherwise be the Company’s\nusual payroll practice over a period of two years; and\n(2) the higher of: (A) two times Executive’s Target Bonus in effect on the date of the Change of\nControl or the Termination Date, whichever is greater; or (B) two times Executive’s most recent actual annual bonus,\npayable in either case ratably in regular installments at the same time as payments are made to Executive under Section\n3(a)(1) above; provided that if any reduction of the Target Bonus has occurred, then the Target Bonus on either date shall\nbe as in effect immediately prior to such reduction; and\n(3) Executive’s Target Bonus (as determined in (2), above) multiplied by a fraction, the\nnumerator of which shall equal the number of days Executive was employed by the Company in the Company fiscal year\nin which the Termination Date occurs and the denominator of which shall equal 365, payable as a cash lump sum within\nforty days after the Termination Date.\nb. Continuation of Benefits. Until the second anniversary of the Termination Date, the Company shall at\nits expense provide Executive and Executive’s spouse and dependents with medical, life insurance and disability\ncoverages at the level provided to Executive immediately prior to the Change of Control; provided, however, that if\nExecutive becomes employed by a new employer, continuing coverage from the Company will become secondary to any\ncoverage afforded by the new employer. The Company shall also provide the benefits described in Article 6.A.2.b of the\nManagement Committee Agreement (as defined in Section 8 hereof); provided that such benefits shall continue until the\nsecond anniversary of the Termination Date (instead of the “Severance Pay Period” as defined in the Management\nCommittee Agreement).\n \nc. Payment of Earned But Unpaid Amounts. Within forty days after the Termination Date, the Company\nshall pay Executive the Base Salary through the Termination Date, any Bonus earned but unpaid as of the Termination\nDate for any previously completed fiscal year of the Company, to the extent not previously deferred under a particular\ndeferred compensation plan, and reimbursement for any unreimbursed expenses properly incurred by Executive in\naccordance with Company policies prior to the Termination Date. Executive shall also receive such employee benefits, if\nany, to which Executive may be entitled from time to time under the employee benefit or fringe benefit plans, policies or\nprograms of the Company, other than any Company severance policy (payments and benefits in this subsection (c), the\n“Accrued Benefits”).\nd. Outplacement Counseling. For the two-year period following the Termination Date (or, if earlier, the\ndate Executive first obtains full-time employment after the Termination Date), the Company shall reimburse all\nreasonable expenses incurred by Executive for professional outplacement services by qualified consultants selected by\nExecutive, in an amount not to exceed 20% of the Executive’s Base Salary in effect on the date of the Change of Control\nor the Termination Date, whichever is higher. All such reimbursement payments shall be made prior to the last day of the\nsecond calendar year following the calendar year in which the Termination Date occurs.\n16\ne. Vesting of Other Benefits. Executive shall be entitled to such accelerated vesting of outstanding\nequity-based awards or retirement plan benefits as is specified under the terms of the applicable plans, agreements and\narrangements.\n4. Mitigation.\nExecutive shall not be required to mitigate damages or the amount of any payment provided for under this\nExhibit by seeking other employment or otherwise, and, subject to Section 3(b), compensation earned from such\nemployment or otherwise shall not reduce the amounts otherwise payable under this Exhibit. No amounts payable under\nthis Exhibit shall be subject to reduction or offset in respect of any claims which the Company (or any other person or\nentity) may have against Executive.\n5. Excise Tax Consequences.\n \na. In the event it shall be determined that any payment, benefit or distribution (or combination thereof)\nby the Company, any of its affiliates, or one or more trusts established by the Company for the benefit of its employees,\nto or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this\nExhibit, or otherwise) (a “Payment”) is subject to the excise tax imposed by Section 4999 of the Code or any interest or\npenalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and\npenalties, hereinafter collectively referred to as the “Excise Tax”), if the net after-tax amount of such Payments, after\nExecutive has paid all taxes due thereon (including, without limitation, taxes due under Section 4999 of the Code) is less\nthan the net after-tax amount of all such Payments and benefits otherwise due to Executive in the aggregate, if such\naggregate Payments were reduced to an amount equal to 2.99 times the Executive’s “base amount” (as defined in Section\n280G(b)(3) of the Code), then the aggregate amount of the payments and benefits shall be reduced to an amount that will\nequal 2.99 times the Executive’s base amount. To the extent such aggregate parachute payment amounts are required to\nbe so reduced, the parachute payment amounts due to the Executive (but no non-parachute payment amounts) shall be\nreduced in the following order: (i) payments and benefits due under Section 3.a of this Exhibit shall be reduced (if\nnecessary, to zero) with amounts that are payable last reduced first; (ii) payments and benefits due in respect of any\nequity fully valued (without regard to any discounts for present value) for purposes of the calculation to be made under\nSection 280G of the Code for purposes of this Section 5 (the “280G Calculation™) in reverse order of when payable; and\n(iii) payments and benefits due in respect of any options or stock appreciation rights with regard to Holdings equity\nsecurities valued under the 280G Calculation based on time of vesting shall be reduced in an order that is most beneficial\nto the Executive.\nb. All determinations required to be made under this Section 5, including whether and when a cutback is\nto be made, and the assumptions to be utilized in arriving at such determination, shall be made by such nationally\nrecognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”) which shall\nprovide detailed supporting calculations both to the Company and Executive within ten business days of the receipt of\nnotice from Executive that there has been a Payment, or such earlier time as is requested by the Company.\n17\nc. Notwithstanding anything contained in this Agreement or any other agreement between the Executive\nand the Company or any of its subsidiaries to the contrary, the Executive and the Company shall in good faith attempt to\nagree on steps to ensure that no payments to which the Executive would otherwise be entitled to receive pursuant to this\nAgreement or any such other agreement will be “parachute payments” (as defined in Section 280G(b)(2) of the Code).\n6. Termination for Cause.\nNothing in this Exhibit shall be construed to prevent the Company from terminating Executive’s\nemployment for Cause. If Executive is terminated for Cause, the Company shall have no obligation to make any\npayments under this Exhibit, except for the Accrued Benefits.\n7. Indemnification; Director’s and Officer’s Liability Insurance.\nExecutive shall, after the Termination Date, retain all rights to indemnification under applicable law, any\nagreements, (including without limitation, the Stockholders Agreement), or under the Company’s Certificate of\nIncorporation or By-Laws, as they may be amended or restated from time to time. In addition, the Company shall\nmaintain Director’s and Officer’s liability insurance on behalf of Executive, at the level in effect immediately prior to the\nTermination Date, for the three year period following the Termination Date, and throughout the period of any applicable\nstatute of limitations.\n8. Executive Covenants.\nThis is an Exhibit B to, and forms a part of, the Aramark Agreement Relating to Employment and Post-\nEmployment Competition between Executive and Aramark (the “Management Committee Agreement”). This Exhibit\nshall not diminish in any way Executive’s rights under the terms of such Management Committee Agreement, except\nthat Executive’s receipt of benefits under this Exhibit is contingent upon Executive’s compliance in all material respects\nwith all of the terms and conditions of the Management Committee Agreement.\n9. Costs of Proceedings.\nEach party shall pay its own costs and expenses in connection with any legal proceeding (including\narbitration), relating to the interpretation or enforcement of any provision of this Exhibit, except that the Company shall\npay such costs and expenses, including attorneys’ fees and disbursements, of Executive if Executive prevails on a\nsubstantial portion of the claims in such proceeding.\n10. Assignment.\nExcept as otherwise provided herein, this Exhibit shall be binding upon, inure to the benefit of and be\nenforceable by the Company and Executive and their respective heirs, legal representatives, successors and assigns. If\nthe Company shall be merged into or consolidated\n18\nwith another entity, the provisions of this Exhibit shall be binding upon and inure to the benefit of the entity surviving\nsuch merger or resulting from such consolidation. The Company shall require any successor (whether direct or indirect,\nby purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company, by\nagreement, expressly to assume and agree to perform this Exhibit in the same manner and to the same extent that the\nCompany would be required to perform it if no such succession had taken place. The provisions of this Section 10 shall\ncontinue to apply to each subsequent employer of Executive hereunder in the event of any subsequent merger,\nconsolidation or transfer of assets of such subsequent employer.\n11. Withholding.\nNotwithstanding any other provision of this Exhibit, the Company may, to the extent required by law,\nwithhold applicable federal, state and local income and other taxes from any payments due to Executive hereunder.\n12. Applicable Law.\nThis Exhibit shall be governed by and construed in accordance with the laws of the Commonwealth of\nPennsylvania, without regard to conflicts of laws principles thereof.\n13. Notice.\nFor the purpose of this Exhibit, any notice and all other communication provided for in this Exhibit shall\nbe in writing and shall be deemed to have been duly given when delivered by hand or overnight courier or three days\nafter it has been mailed by United States registered mail, return receipt requested, postage prepaid, addressed to the\nrespective addresses set forth below, or to such other address as either party may have furnished to the other in writing in\naccordance herewith, except that notice of change of address shall be effective only upon receipt.\nIf to the Company:\nAramark\nAramark Tower\n1101 Market Street\nPhiladelphia, Pennsylvania 19107\nAttention: General Counsel\nIf to Executive:\nTo the most recent address of Executive set forth in the personnel records of the Company.\n14. Entire Agreement; Modification.\n \n \n19\nThis Exhibit constitutes the entire agreement between the parties and, except as expressly provided herein\nor in Article 6.E of the Management Committee Agreement or in any benefit plan of the Company or of any of its\naffiliates, supersedes all other prior agreements expressly concerning the effect of a Change of Control occurring after\nthe date of this Agreement with respect to the relationship between the Company and Executive. This Exhibit is not, and\nnothing herein shall be deemed to create, a contract of employment between the Company and Executive. This Exhibit\nmay be changed only by a written agreement executed by the Company and Executive.\n15. Severability.\nIn the event any one or more of the provisions of this Exhibit shall be or become invalid, illegal or\nunenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected\nthereby.\n20\nSchedule A\nCERTAIN DEFINITIONS\nAs used in this Exhibit, and unless the context requires a different meaning, the following terms, when\ncapitalized, have the meaning indicated:\n1. “Act” means the Securities Exchange Act of 1934, as amended.\n2. “Affiliate” shall have the meaning set forth in the Stockholders Agreement.\n3. “Base Salary” means Executive’s annual rate of base salary in effect on the date in question.\n4. “Bonus” means the amount payable to Executive under the Company’s applicable annual bonus plan with\nrespect to a fiscal year of the Company.\n5. “Cause” means “cause” as defined in the Management Committee Agreement of which this Schedule A\nforms a part.\n6. “Change of Control” means the first to occur of any of the following:\n(i) The acquisition by any individual entity or group, within the meaning of Section 13(d)(3) or 14(d)(2)\nof the Exchange Act, other than the Investor Groups and their Affiliates (the “Permitted Holders”), directly or indirectly,\nof beneficial ownership of equity securities of the Company representing more than 50% of the voting power of the then-\noutstanding equity securities of the Company entitled to vote generally in the election of directors (the “Company Voting\nSecurities”); provided, however, that for purposes of this subsection (i), the following shall not constitute a Change of\nControl: (A) any acquisition by the Company or any Sponsor Stockholder, (B) any acquisition by any employee benefit\nplan (or related trust) sponsored or maintained by the Company or any Subsidiary, or (C) any acquisition by any Person\npursuant to a transaction which complies with clauses (A) and (B) of subsection (ii) below; or\n \n(ii) The consummation of a reorganization, merger or consolidation or sale or other disposition of all or\nsubstantially all of the assets of the Company or the purchase of assets or stock of another entity (a “Business\nCombination”), in each case, unless immediately following such Business Combination, (A) all or substantially all of the\nbeneficial owners of the Company Voting Securities immediately prior to such Business Combination beneficially own\nmore than 50% of the then-outstanding combined voting power of the then-outstanding securities entitled to vote\ngenerally in the election of directors of the entity resulting from such Business Combination in substantially the same\nproportion (relative to each other) as their ownership immediately prior to such Business Combination of the Company\nVoting Securities, and (B) no Person (excluding the Permitted Holders) beneficially owns, directly or indirectly, more\nthan a majority of the combined voting power of the then-outstanding voting securities of such entity\n21\nexcept to the extent that such ownership of the Company existed prior to the Business Combination; or\n(iii) A majority of the members of the Company’s Board of Directors are replaced during any 12-month\nperiod by directors whose appointment or election is not endorsed by a majority of the current members of the\nCompany’s Board of Directors before such replacement or is not contemplated by the Stockholders Agreement as in\neffect on the date hereof.\nNotwithstanding paragraphs (i) through (iii) above, in no event will a Change of Control be deemed to\noccur if the Permitted Holders maintain a direct or indirect Controlling Interest in the Company. A “Controlling Interest”\nin an entity shall mean beneficial ownership of more than 50% of the voting power of the outstanding equity securities of\nthe entity.\n7. “Code” means the Internal Revenue Code of 1986, as amended.\n \n8. “Company” means Aramark or any of its parents and any successor or successors thereto.\n9. “Good Reason” means any of the following actions on or after a Change of Control, without Executive’s\nexpress prior written approval, other than due to Executive’s Permanent Disability or death:\n(a) any decrease in Base Salary or Target Bonus;\n(b) any decrease in Executive’s pension benefit opportunities or any material diminution in the\naggregate employee benefits, in each case, afforded to the Executive immediately prior to the Change of Control, but not\nincluding any such decrease or diminution that is inadvertent and that is cured within 30 days following written notice of\nsuch decrease or diminution by Executive to the Company;\n(c) any diminution in Executive’s title or reporting relationship, or substantial diminution in duties or\nresponsibilities (other than solely as a result of a Change of Control in which the Company immediately thereafter is no\nlonger publicly held); or\n(d) any relocation of Executive’s principal place of business of 35 miles or more, other than normal\ntravel consistent with past practice.\nExecutive shall have twelve months from the time Executive first becomes aware of the existence\nof Good Reason to resign for Good Reason.\nThe Executive must provide notice to the Company of the existence of the condition described above within a period not\nto exceed 90 days of the initial existence of the condition, upon the notice of which the Company shall have a period of\n30 days during which it may remedy the condition and not be required to pay the amount.\n22\n10. “Permanent Disability” means “permanent disability” as defined in the Company’s long-term disability plan\nas in effect from time to time, or if there shall be no plan, the inability of Executive to perform in all material respects\nExecutive’s duties and responsibilities to the Company or any affiliate for a period of six (6) consecutive months or for\nan aggregate of nine (9) months in any twenty-four (24) consecutive month period by reason of a physical or mental\nincapacity.\n11. “Permitted Holder” shall have the same meaning as set forth in the Stockholders Agreement.\n12. “Target Bonus” means the target Bonus established for Executive in respect of any given year, whether\nexpressed as a percentage of Base Salary or a dollar amount.\n23	EX-10.2 3 x102elcagreement.htm EXHIBIT 10.2\nExhibit 10.2\nARAMARK AGREEMENT RELATING TO EMPLOYMENT AND\nPOST-EMPLOYMENT COMPETITION\nThis Agreement is between the undersigned individual ("Employee") and Aramark.\nRECITALS\nWHEREAS, Aramark is a leading provider of managed services to business and industry, private and public\ninstitutions, and the general public, in the following business groups: food and support services and uniform and career\napparel;\nWHEREAS, Aramark has a proprietary interest in its business and financial plans and systems, methods of\noperation and other secret and confidential information, knowledge and data ("Proprietary Information") which includes,\nbut is not limited to, all confidential, proprietary or non-public information, ideas and concepts; annual and strategic\nbusiness plans; financial plans, reports and systems including, profit and loss statements, sales, accounting forms and\nprocedures and other information regarding costs, pricing and the financial condition of Aramark and its business\nsegments and groups; management development reviews, including information regarding the capabilities and\nexperience of Aramark employees; intellectual property, including patents, inventions, discoveries, research and\ndevelopment, compounds, recipes, formulae, reports, protocols, computer software and databases; information regarding\nAramark's relationships with its clients, customers, and suppliers and prospective clients, partners, customers and\nsuppliers; policy and procedure manuals, information regarding materials and documents in any form or medium\n(including oral, written, tangible, intangible, or electronic) concerning any of the above, or any past, current or future\nbusiness activities of Aramark that is not publicly available; compensation, recruiting and training, and human resource\npolicies and procedures; and data compilations, research, reports, structures, compounds, techniques, methods,\nprocesses, and know-how;\nWHEREAS, all such Proprietary Information is developed at great expense to Aramark and is considered by\nAramark to be confidential trade secrets;\nWHEREAS, Employee, as a senior manager, will have access to Aramark's Proprietary Information, directly in\nthe course of Employee's employment, and indirectly through interaction with and presentations by other Aramark\nsenior managers at the Executive Leadership Institute, Executive Leadership Council meetings, Presidents' Council\nmeetings and the like;\nWHEREAS, Aramark will introduce Employee to Aramark clients, customers, suppliers and others, and will\nencourage, and provide resources for, Employee to develop professional relationships with Aramark's clients, customers,\nsuppliers and others;\nWHEREAS, Aramark will provide specialized training and skills to Employee in connection with the\nperformance of Employee's duties at Aramark which training involves the disclosure by Aramark to Employee of\nProprietary Information;\nWHEREAS, Aramark will be vulnerable to unfair post-employment competition by Employee because\nEmployee will have access to and knowledge of Aramark's Proprietary Information, will have a personal relationship\nwith Aramark's clients, customers, suppliers and others, and will generate good will which Employee acknowledges\nbelongs to Aramark;\nNOW, THEREFORE, in consideration of Employee's employment with Aramark, the opportunity to receive the\ngrant of options to purchase common stock of Aramark, severance and other post-employment benefits provided for\nherein (including pursuant to Exhibit B hereto to which Employee acknowledges Employee is not otherwise entitled),\nand for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Employee\nagrees to enter into this Agreement with Aramark as a condition of employment pursuant to which Aramark will limit\nEmployee's right to compete against Aramark during and following termination of employment on the terms set forth in\nthis Agreement. Intending to be legally bound, the parties agree as follows:\nARTICLE 1\nNON-DISCLOSURE AND NON-DISPARAGEMENT\nEmployee shall not, during or after termination of employment, directly or indirectly, in any manner utilize or\ndisclose to any person, firm, corporation, association or other entity, except where required by law, any Proprietary\nInformation which is not generally known to the public, or has not otherwise been disclosed or recognized as standard\npractice in the industries in which Aramark is engaged. Employee shall, during and after termination of employment,\nrefrain\nfrom\nmaking\nany\nstatements\nor\ncomments\nof\na\ndefamatory\nor\ndisparaging\nnature\nto\nany\nthird\nparty\nregarding\nAramark, or any of Aramark's officers, directors, personnel, policies or products, other than to comply with law.\nARTICLE 2\nNON-COMPETITION\nA. Subject to Article 2. B. below, Employee, during Employee's period of employment with Aramark, and for a\nperiod of two years following the voluntary or involuntary termination of employment, shall not, without Aramark's\nwritten permission, which shall be granted or denied in Aramark's sole discretion, directly or indirectly, associate with\n(including, but not limited to, association as a sole proprietor, owner, employer, partner, principal, investor, joint\nventurer, shareholder, associate, employee, member, consultant, contractor or otherwise), or acquire or maintain\nownership interest in, any Business which is competitive with that conducted by or developed for later implementation\nby Aramark at any time during the term of Employee's employment, provided however, if Employee's employment\nis\ninvoluntarily terminated by Aramark for any reason other than Cause (as defined herein), or (ii) terminated by Employee\nfor Good Reason (as defined in Exhibit B) at any time following a Change of Control (as defined in Exhibit B) occurring\nafter the date of this Agreement, then the term of the non-competition provision set forth herein will be modified to be\neighteen months following such termination of employment. For purposes of this Agreement, "Business" shall be\ndefined as a person, corporation, firm, LLC, partnership, joint venture or other entity. Nothing in the foregoing shall\n2\nprevent Employee from investing in a Business that is or becomes publicly traded, if Employee's ownership is as a\npassive investor of less than 1% of the outstanding publicly traded stock of the Business.\nB. The provision set forth in Article 2.A above, shall apply to the full extent permitted by law (i) in all fifty\nstates, and (ii) each foreign country, possession or territory in which Aramark may be engaged in, or have plans to\nengage in, business (x) during Employee's period of employment, or (y) in the case of a termination of employment, as\nof the effective date of such termination or at any time during the twenty-four month period prior thereto.\nC. Employee acknowledges that these restrictions are reasonable and necessary to protect the business interests\nof Aramark, and that enforcement of the provisions set forth in this Article 2 will not unnecessarily or unreasonably\nimpair Employee's ability to obtain other employment following the termination (voluntary or involuntary) of\nEmployee's employment with Aramark. Further, Employee acknowledges that the provisions set forth in this Article 2\nshall apply if Employee's employment is involuntarily terminated by Aramark for Cause; as a result of the elimination of\nemployee's position; for performance-related issues; or for any other reason or no reason at all.\nARTICLE 3\nNON-SOLICITATION\nDuring the period of Employee's employment with Aramark and for a period of two years following the\ntermination of Employee's employment, regardless of the reason for termination, Employee shall not, directly or\nindirectly: (i) induce or encourage any employee of Aramark to leave the employ of Aramark, (ii) hire any individual\nwho was an employee of Aramark as of the date of Employee's termination of employment or within a six month period\nprior to such date, or (iii) induce or encourage any customer, client, supplier or other business relation of Aramark to\ncease or reduce doing business with Aramark or in any way interfere with the relationship between any such customer,\nclient, supplier or other business relation and Aramark.\nARTICLE 4\nDISCOVERIES AND WORKS\nEmployee hereby irrevocably assigns, transfers, and conveys to Aramark to the maximum extent permitted by\napplicable\nlaw\nEmployee's\nright,\ntitle\nand\ninterest\nnow\nor\nhereinafter\nacquired,\nin\nand\nto\nall\nDiscoveries\nand\nWorks\n(as\ndefined below) created, invented, designed, developed, improved or contributed to by Employee, either alone or jointly\nwith others, while employed by Aramark and within the scope of Employee's employment and/or with the use of\nAramark's resources. The terms "Discoveries and Works" include all works of authorship, inventions, intellectual\nproperty, materials, documents, or other work product (including, without limitation, Proprietary Information, patents\nand patent applications, patentable inventions, research, reports, software, code, databases, systems, applications,\npresentations, textual works, graphics and audiovisual materials). Employee shall have the burden of proving that any\nmaterials or works created, invented, designed, developed, contributed to or improved by\n3\nEmployee that are implicated by or relevant to employment by Aramark are not implicated by this provision. Employee\nagrees to (i) keep accurate records and promptly notify, make full disclosure to, and execute and deliver any documents\nand to take any further actions requested by Aramark to assist it in validating, effectuating, maintaining, protecting,\nenforcing, perfecting, recording, patenting or registering any of its rights hereunder, and (ii) renounce any and all claims,\nincluding, without limitation, claims of ownership and royalty, with respect to all Discoveries and Works and all other\nproperty\nowned\nor\nlicensed\nby\nAramark.\nAny\nDiscoveries\nand\nWorks\nthat,\nwithin\nsix\nmonths\nafter\nthe\ntermination\nof\nEmployee's employment with Aramark, are made, disclosed, reduced to a tangible or written form or description, or are\nreduced to practice by Employee and which pertain to the business carried on or products or services being sold or\ndeveloped by Aramark at the time of such termination shall, as between Employee and Aramark, be presumed to have\nbeen made during such employment with Aramark. Employee acknowledges that, to the fullest extent permitted by law,\nall Discoveries and Works shall be deemed "works made for hire" under the Copyright Act of 1976, as amended, 17\nU.S.C. Section 101. Employee hereby grants Aramark a perpetual, nonexclusive, royalty-free, worldwide, assignable,\nsublicensable license under all rights and intellectual property rights (including patent, industrial property, copyright,\ntrademark, trade secret, unfair competition and related laws) in any Works and Discoveries, for all purposes in\nconnection with Aramark's current and future business, that Employee has created, invented, designed, developed,\nimproved or contributed to prior to Employee's employment with Aramark that are relevant to or implicated by such\nemployment ("Prior Works"). Any Prior Works are disclosed by Employee in Schedule 1.\nARTICLE 5\nREMEDIES\nEmployee acknowledges that in the event of any violation by Employee of the provisions set forth in Articles 1,\n2,\n3 or 4 above, Aramark will sustain serious, irreparable and substantial harm to its business, the extent of which will be\ndifficult to determine and impossible to fully remedy by an action at law for money damages. Accordingly, Employee\nagrees that, in the event of such violation or threatened violation by Employee, Aramark shall be entitled to an injunction\nbefore trial before any court of competent jurisdiction as a matter of course upon the posting of not more than a nominal\nbond, in addition to all such other legal and equitable remedies as may be available to Aramark. If Aramark is required\nto enforce the provisions set forth in Articles 2 and 3 above by seeking an injunction, Employee agrees that the relevant\ntime periods set forth in Articles 2 and 3 shall commence with the entry of the injunction. Employee further agrees that,\nin the event any of the provisions of this Agreement are determined by a court of competent jurisdiction to be invalid,\nillegal, or for any reason unenforceable as written, such court shall substitute a valid provision which most closely\napproximates the intent and purpose of the invalid provision and which would be enforceable to the maximum extent\npermitted by law.\nARTICLE 6\nPOST-EMPLOYMENT BENEFITS\n4\nA. If Employee's employment is terminated by Aramark for any reason other than Cause, Employee shall be\nentitled to the following post-employment benefits:\n1. Severance Pay: Employee shall receive severance payments equivalent to Employee's monthly base\nsalary as of the effective date of termination for twelve (12) months, should the Employee have less than one (1) year of\ncontinuous service with Aramark completed from the date of hire; and for eighteen (18) months, should the Employee\nhave one (1) year or more of continuous service with Aramark completed from the date of hire. Severance payments\nshall commence with the Employee's effective date of termination and shall be made in accordance with Aramark's\nnormal payroll cycle. The period during which Employee receives severance payments shall be referred to as the\n"Severance Pay Period."\n2. Other Post-Employment Benefits\n(a) Basic Group medical and life insurance coverages shall continue under then prevailing terms\nduring the Severance Pay Period; provided, however, that if Employee becomes employed by a new employer during\nthat period, continuing coverage from Aramark will become secondary to any coverage afforded by the new employer.\nEmployee's share of the premiums will be deducted from Employee's severance payments. Basic Group medical\ncoverage provided during such period shall be applied against Aramark's obligation to continue group medical coverage\nunder the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"). Upon termination of basic group\nmedical and life coverages, Employee may convert such coverages to individual policies to the extent allowable under\nthe terms of the plans providing such coverages.\n(b) If, at the time of termination, Aramark is providing Employee with a leased vehicle, then\nAramark will continue to provide the leased vehicle through the Severance Pay Period under the same terms and\nconditions as in effect at the time of the Employee's termination. At the expiration of the Severance Pay Period,\nEmployee must return the leased vehicle to Aramark unless the Employee elects to purchase the vehicle in accordance\nwith the Executive Leadership Council policy then in effect. If Employee is receiving a car allowance at the time of the\nEmployee's termination, such car allowance will continue to be paid through the Severance Pay Period. At the expiration\nof the Severance Pay Period, the Employee will cease being paid a car allowance.\n(c) Employee's eligibility to participate in all other benefit and compensation plans, including,\nbut not limited to the Management Incentive Bonus, Long Term Disability, any nonqualified retirement plans, and any\nstock option or ownership plans, shall terminate as of the effective date of Employee's termination unless provided\notherwise under the terms of a particular plan, provided, however, that participation in plans and programs made\navailable solely to Executive Leadership Council members, including, but not limited to the Executive Leadership\nCouncil Medical Plan, shall cease as of the effective date of termination or the date Employee's Executive Leadership\nCommittee membership ceases, whichever occurs\n5\nfirst. Employee, however, shall have certain rights to continue the Executive Leadership Council Medical Plan under\nCOBRA.\nB. Termination for "Cause" shall be defined as termination of employment due to: (i) conviction or plea of\nguilty or nolo contendere to a felony, (ii) intentional fraud or dishonesty with respect to Aramark that causes material and\ndemonstrable harm to Aramark, (iii) willful and continuous failure to perform lawfully assigned duties that are consistent\nwith the Employee's position with Aramark, (iv) willful violation of Aramark's Business Conduct Policy that causes\nmaterial harm to Aramark or its business reputation, or (v) intentionally working against the best interests of Aramark; in\nany case of conduct described in clause (ii)-(v), only if such conduct continues beyond ten business days after receipt by\nthe Employee from Aramark of a written demand to cure such conduct.\nC. If Employee is terminated by Aramark for reasons other than Cause, Employee will receive the severance\npayments and other post-employment benefits during the Severance Pay Period even if Employee commences other\nemployment during such period provided such employment does not violate the terms of Article 2, and subject to the\nprovisions of Article 6.E.\nNotwithstanding anything else contained in this Article 6 to the contrary, Aramark may choose not to commence\n(or to discontinue) providing any payment or benefit unless and until Employee executes and delivers, without\nrevocation, a release in form reasonably acceptable to Aramark, as described in Article 6.E within 60 days following\nEmployee's termination of employment; provided, however, that subject to receipt of such executed release, Aramark\nshall commence providing such payments and benefits within 75 days following the date of termination of Employee's\nemployment.\nD. In addition to the remedies set forth in Article 5, Aramark reserves the right to terminate all severance\npayments and other post-employment benefits if Employee violates the covenants set forth in Articles 1, 2, 3 or 4 above\nin any material respect.\nE. Employee's receipt of severance and other post-employmen benefits under this Agreement is contingent on\n(i)\nEmployee's execution of a release in a form reasonably acceptable to Aramark, except that such release shall not\ninclude any claims by Employee to enforce Employee's rights under, or with respect to, (1) this Agreement (including\nthe\nattached\nExhibit\nB),\n(2)\nthe\nCertificate\nof\nIncorporation\nand\nBy-laws\nof\nAramark,\n(3)\nany\nindemnification\nagreement\nbetween the Employee and Aramark, (4) any Stockholders Agreement among Aramark and the holders party thereto (the\n"Stockholders Agreement") and any other agreement referenced therein, or (5) any Aramark benefit plan pursuant to its\nterms, and (ii) the expiration of the applicable Age Discrimination in Employment Act revocation period without such\nrelease being revoked by Employee.\nARTICLE 7\nTERM OF EMPLOYMENT\nEmployee acknowledges that Aramark has the right to terminate Employee's employment at any time for any\nreason whatsoever, provided, however, that any termination by Aramark for\n6\nreasons other than Cause shall result in the severance and the post-employment benefits described in Article 6 above, to\nbecome due in accordance with the terms of this Agreement subject to the conditions set forth in this Agreement.\nEmployee further acknowledges that the severance payments made and other benefits provided by Aramark are in full\nsatisfaction of any obligations Aramark may have resulting from Aramark's exercise of its right to terminate Employee's\nemployment, except for those obligations which are intended to survive termination such as the payments to be made\npursuant to retirement plans, deferred compensation plans, conversion of insurance, and the plans and other documents\nand agreements referred to in Article 6.E above.\nARTICLE 8\nMISCELLANEOUS\nA. As used throughout this Agreement, Aramark includes Aramark and its subsidiaries and affiliates or any\ncorporation, joint venture, or other entity in which Aramark or its subsidiaries or affiliates has an equity interest in excess\nof ten percent (10%).\nB. Notwithstanding anything to the contrary contained herein, Employee shall, after termination of employment\nfor Good Reason by Employee or other than for Cause by Aramark, retain all rights to indemnification under applicable\nlaw or any agreement (including, without limitation, the Stockholders Agreement), or under Aramark's or any parent\ncorporation's Certificate of Incorporation or By-Laws at a level that is at least as favorable to the Employee as that\ncurrently provided In addition, the Company shall maintain Director's and Officer's liability insurance on behalf of\nEmployee, at the level in effect immediately prior to such date of termination, for the three-year period following the\ndate of termination, and throughout the period of any applicable statute of limitations.\nC. In the event that it is reasonably determined by Aramark that, as a result of the deferred compensation tax\nrules under Section 409A of the Internal Revenue Code of 1986, as amended (and any related regulations or other\npronouncements thereunder) ("the Deferred Compensation Tax Rules"), any of the payments and benefits that Employee\nis entitled to under the terms of this Agreement (including under Exhibit B) may not be made at the time contemplated\nby the terms hereof or thereof, as the case may be, without causing Employee to be subject to tax under the Deferred\nCompensation Tax Rules, Aramark shall, in lieu of providing such payment or benefit when otherwise due under this\nAgreement, instead provide such payment or benefit on the first day on which such provision would not result in\nEmployee incurring any tax liability under the Deferred Compensation Tax Rules; which day, if Employee is a "specified\nemployee" within the meaning of the Deferred Compensation Tax Rules, shall be the first day of the seventh month\nfollowing the date of Employee's termination of employment (or the earliest date as is permitted under the Deferred\nCompensation Tax Rules, without any accelerated or additional tax); provided, further, that to the extent that the amount\nof payments due under Article 6.A (or Exhibit B, as applicable) are not subject to the Deferred Compensation Tax Rules\nby virtue of the application of Treas. Reg. Sec. 1.409A-1(b)(9)(iii)(A), such payments may be made prior to the\nexpiration of such six-month period. In addition, if the commencement of any payment or benefit provided under Article\n6 that constitutes "deferred compensation"\n7\nunder the Deferred Compensation Tax Rules could, by application of the terms conditioning such payment or benefit\nupon the execution and non-revocation of a release set forth in Article 6, occur in one of two taxable years, then the\ncommencement of such payment shall begin on the first payroll date occurring in January of such second taxable year.\nTo the extent any reimbursements or in-kind benefits due to Employee under this Agreement constitute "deferred\ncompensation" under the Deferred Compensation Tax Rules, any such reimbursements or in-kind benefits shall be paid\nto Employee in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). Additionally, to the extent that\nEmployee's receipt of any in-kind benefits from Aramark or its affiliates must be delayed pursuant to this Section due to\nEmployee's status as a "specified employee," Employee may elect to instead purchase and receive such benefits during\nthe period in which the provision of benefits would otherwise be delayed by paying the Aramark (or its affiliates) for\nthe\nfair market value of such benefits (as determined by Aramark in good faith) during such period. Any amounts paid by\nEmployee\npursuant\nto\nthe\npreceding\nsentence\nshall\nbe\nreimbursed\nto\nEmployee\n(with\ninterest\nthereon)\nas\ndescribed\nabove\non the date that is the first day of the seventh month following Employee's separation from service. In the event that\nany\npayments or benefits that Aramark would otherwise be required to provide under this Agreement cannot be provided in\nthe manner contemplated herein without subjecting Employee to tax under the Deferred Compensation Tax Rules,\nAramark shall provide such intended payments or benefits to Employee in an alternative manner that conveys an\nequivalent economic benefit to Employee as soon as practicable as may otherwise be permitted under the Deferred\nCompensation Tax Rules. Without limiting the generality of the foregoing, Employee may notify Aramark if he believes\nthat any provision of this Agreement (or of any award of compensation including equity compensation or benefits)\nwould cause Employee to incur any additional tax under Section 409A and, if Aramark concurs with such belief after\ngood faith review or Aramark independently makes such determination, Aramark shall, after consulting with Employee,\nuse reasonable best efforts to reform such provision to comply with Section 409A through good faith modifications to\nthe minimum extent reasonably appropriate to conform the Deferred Compensation Tax Rules; provided that neither\nAramark nor any of its employees or representatives shall have any liability to Employee with respect thereto. For\npurposes of the Deferred Compensation Tax Rules, each payment made under this Agreement (including, without\nlimitation, each installment payment due under Article 6.A and Exhibit B, as applicable) shall be designated as\na\n"separate payment" within the meaning of the Deferred Compensation Tax Rules, and references herein to Employee's\n"termination of employment" shall refer to Employee's separation from service with Aramark and its affiliates within the\nmeaning of the Deferred Compensation Tax Rules.\nD. In the event of a Change of Control as defined in the attached Exhibit B, the provisions of Exhibit B shall\napply to Employee. Further, pursuant to the Deferred Compensation Tax Rules, Aramark, in its discretion, is permitted to\naccelerate the time and form of payments provided under the deferred compensation arrangement set forth in this\nAgreement (including Exhibit B), where the right to the payment arises due to a termination of the arrangement within\nthe 30 days preceding or the 12 months following a change in control event (as defined in the Deferred Compensation\nTax Rules).\n8\nE. If Employee's employment with Aramark terminates solely by reason of a transfer of stock or assets of, or a\nmerger or other disposition of, a subsidiary of Aramark (whether direct or indirect), such termination shall not be\ndeemed a termination of employment by Aramark for purposes of this Agreement, provided that Aramark requires the\nsubsequent employer, by agreement, to expressly assume and agree to perform this Agreement in the same manner and\nto the same extent that Aramark would be required to perform it if no such transaction had taken place. In such case,\nEmployee acknowledges and agrees that Aramark may assign this Agreement and Aramark's rights hereunder, and\nparticularly Articles 1, 2, 3 and 4, in its sole discretion and without advance approval by Employee. In such case,\nEmployee agrees that Aramark may assign this Agreement and all references to "Aramark" contained in this Agreement\nshall thereafter be deemed to refer to the subsequent employer.\nF. Employee shall not be required to mitigate damages or the amount of any payment provided for under this\nAgreement by seeking other employment or otherwise.\nG. This Agreement shall supersede and substitute for any previous post-employment or severance agreement\nbetween Employee and Aramark.\nH. In the event any one or more of the provisions of this Agreement shall be or become invalid, illegal or\nunenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall\nnot be affected thereby.\nI. The terms of this Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, without\nregard to conflicts of laws principles thereof. For purposes of any action or proceeding, Employee irrevocably submits to\nthe non-exclusive jurisdiction of the courts of Pennsylvania and the courts of the United States of America located in\nPennsylvania for the purpose of any judicial proceeding arising out of or relating to this Agreement, and acknowledges\nthat the designated fora have a reasonable relation to the Agreement and to the parties' relationship with one another.\nNotwithstanding\nthe\nprovisions\nof\nthis\nArticle\n8.I,\nAramark\nmay,\nin\nits\ndiscretion,\nbring\nan\naction\nor\nspecial\nproceeding\nin any court of competent jurisdiction for the purpose of seeking temporary or preliminary relief pending resolution of a\ndispute.\nJ. Employee expressly consents to the application of Article 8.I to any judicial action or proceeding arising out\nof\nor\nrelating\nto\nthis\nAgreement.\nAramark\nshall\nhave\nthe\nright\nto\nserve\nlegal\nprocess\nupon\nEmployee\nin\nany\nmanner\npermitted by law. In addition, Employee irrevocably appoints the Executive Vice President, Human Resources of\nAramark (or any successor) as Employee's agent for service of legal process in connection with any such action or\nproceeding and Employee agrees that service of legal process upon such agent, who shall promptly advise Employee of\nany such service of legal process at the address of Employee then in the records of Aramark, shall be deemed in every\nrespect effective service of legal process upon Employee in any such action or proceeding.\nK. Employee hereby waives, to the fullest extent permitted by applicable law, any objection that Employee now\nor\nhereafter may have to personal jurisdiction or to the laying of venue of any action or proceeding brought in any court\nreferenced in Article 8.I and hereby agrees not to plead or claim the same.\n9\nL. Notwithstanding any other provision of this Agreement, Aramark may, to the extent required by law,\nwithhold applicable federal, state and local income and other taxes from any payments due to Employee hereunder.\nM. Employee and Aramark acknowledge that for purposes of Article 6, Employee's last hire date with Aramark\nis April 6, 2015.\nN. Employee expressly acknowledges and agrees that the Incentive Compensation Recoupment Policy set forth\nin Exhibit to this Agreement is binding on Employee and that Employee is a Covered Employee as defined in that policy\nO. This Agreement shall be binding upon, inure to the benefit of and be enforceable by Aramark and Employee,\nand their respective heirs, legal representatives, successors and assigns. Employee acknowledges and agrees that this\nAgreement, including its provisions on post-employment restrictions, is specifically assignable by Aramark. Employee\nhereby consents to such future assignment and agrees not to challenge the validity of such future assignment.\nIN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have caused this Agreement to\nbe signed this 14th date of March, 2015.\n/s/ Stephen P. Bramlage, Jr.\nAramark\nStephen Bramlage, Jr.\nBy: /s/Lynn B. McKee\n10\nSchedule 1\nPrior Works" *k\n11\nExhibit A\nAramark\nIncentive Compensation Recoupment Policy\nOverview\nAramark (the "Company") has adopted this incentive compensation recoupment policy (the "Policy") in order to\nensure that incentive compensation is paid based on accurate financial data. In the event of an accounting restatement as\ndescribed below the Company may seek recovery of incentive compensation that would have not been paid if the correct\nperformance data had been used to determine the amount payable. The Board of Directors (the "Board") and the\nCompensation and Human Resources Committee of the Board (the "Committee") shall have full authority to interpret\nand enforce the Policy.\nCovered Employees\nThe Policy applies to "Covered Employees" who are: the executive officers of the Company and its subsidiaries\n(as defined under Rule 3b-7 under the Securities Exchange Act of 1934, as amended) and all other direct reports of the\nChief Executive Officer of the Company.\nIncentive Compensation\nFor purposes of this Policy, "incentive compensation" means cash performance bonuses and incentive stock\nawards including performance stock units paid, granted, vested or accrued under any Company plan or agreement in the\nform of cash or Company common stock whose payment or vesting is based on the achievement of one or more financial\nmetrics.\nAccounting Restatement; Calculation of Overpayment\nIf the Board or the Committee determines that (i) incentive compensation of a Covered Employee was overpaid,\nin whole or in part, as a result of a restatement of the reported financial or operating results of the Company due to\nmaterial non-compliance with financial reporting requirements under the securities laws (unless due to a change in\naccounting policy or applicable law) and (ii) such Covered Employee has engaged in misconduct that causes or\ncontributed, directly or indirectly, to the non-compliance that resulted in the obligation to restate the Company's reported\nfinancial or operating results, the Board or the Committee will determine, in its discretion, whether the Company shall,\nto the extent permitted by applicable law, seek to recover or cancel the incentive compensation granted, paid to, issued or\nvested in excess of the incentive compensation that would have been paid or granted to such Covered Employee or the\nincentive compensation in which such Covered Employee would have vested had the actual payment, granting or vesting\nbeen calculated based on the accurate data or restated results, as applicable (the "Overpayment").\n12\nForms of Recovery\nIf the Board or the Committee determines to seek recovery for the Overpayment, the Company shall have the\nright to demand that the Covered Employee reimburse the Company for the Overpayment. The Board or the Committee\nshall have the discretion to determine the form, amount and timing of any repayment. To the extent the Covered\nEmployee does not make reimbursement of the Overpayment, the Company shall have the right to enforce the repayment\nthrough the reduction or cancellation of outstanding and future incentive compensation and shall also have the right to\nsue for repayment. To the extent any shares have been issued under vested awards or such shares have been sold by the\nCovered Employee, the Company shall have the right to cancel any other outstanding stock-based awards with a value\nequivalent to the Overpayment, as determined by the Board or the Committee.\nTime Period for Overpayment Review\nThe Board or the Committee may make determinations of whether the Company shall seek recovery or\ncancellation of the Overpayment at any time through the end of the third fiscal year following the year for which the\ninaccurate performance criteria were measured; provided, that if steps have been taken within such period to restate the\nCompany's financial or operating results, the time period shall be extended until such restatement is completed. For\nillustrative purposes only, this means that if incentive compensation is paid in late calendar 2015 for performance metrics\nbased on fiscal year 2015 performance, the compensation shall be subject to review for Overpayment until the end of the\n2018 fiscal year Notwithstanding the above, if the Board or the Committee determines that any Covered Employee\nengaged in fraud or misconduct, the Board or the Committee shall be entitled to seek recovery or cancellation of the\nOverpayment with respect to such Covered Employee for a period of six years after the act of fraud or misconduct, as\nsuch time period is calculated by the Board or Committee.\nNo Additional Payments\nIn no event shall the Company be required to award Covered Employees an additional payment if the restated or\naccurate financial results would have resulted in a higher incentive compensation payment.\nApplicability\nThis Policy applies to all incentive compensation, granted, paid or credited after February 3, 2015, except to the\nextent prohibited by applicable law or any other legal obligation of the Company. Application of the Policy does not\npreclude the Company from taking any other action to enforce a Covered Employee's obligations to the Company,\nincluding termination of employment or institution of civil or criminal proceedings or any other remedies that may be\navailable to the Company, including such remedies contained, without limitation, in the Company's equity grant and\nemployment agreements, whether or not there is a restatement.\nCommittee Determination Final\n13\nAny determination by the Board or the Committee (or by any officer of the Company to whom enforcement\nauthority has been delegated) with respect to this Policy shall be final, conclusive and binding on all interested parties.\nOther Laws\nThe Policy is in addition to (and not in lieu of) any right of repayment, forfeiture or right of offset against any\nCovered Employee that is required pursuant to any statutory repayment requirement implemented at any time prior to or\nfollowing the adoption of the Policy. This policy is in addition to, and is not a substitute for, the requirements of Section\n304 of the Sarbanes-Oxley Act of 2002.\nAmendment; Termination\nThe Board or the Committee may amend or terminate this Policy at any time.\nAdopted on February 3, 2015\n14\nEXHIBIT B\nTERMINATION PROTECTION PROVISIONS\nThis is an Exhibit B to, and forms a part of, the Aramark Agreement Relating to Employment and Post-\nEmployment Competition between Stephen Bramlage, Jr. (the "Executive") and Aramark.\n1. Defined Terms.\nUnless otherwise indicated, capitalized terms used in this Exhibit which are defined in Schedule A shall\nhave the meanings set forth in Schedule A.\n2. Effective Date; Term.\nThis Exhibit shall be effective as of the 6th day of April, 2015 (the "Effective Date) and shall remain\nin\neffect until the later of three years following a Change of Control and the date that all of the Company's obligations\nunder this Exhibit have been satisfied in full.\n3. Change of Control Benefits.\nIf Executive's employment with the Company is terminated at any time within the two years following a\nChange of Control by the Company without Cause, or by Executive for Good Reason (the effective date of either such\ntermination hereafter referred to as the "Termination Date"), Executive shall be entitled to the payments and benefits\nprovided hereafter in this Section 3 and as set forth in this Exhibit. If Executive's employment by the Company is\nterminated prior to a Change of Control by the Company (i) at the request of a party (other than the Company) involved\nin the Change of Control or (ii) otherwise in connection with or in anticipation of a Change of Control that subsequently\noccurs, Executive shall be entitled to the benefits provided hereafter in this Section 3 and as set forth in this Exhibit, and\nExecutive's Termination Date shall be deemed to have occurred immediately following the Change of Control. Payment\nof benefits under this Exhibit shall be in lieu of any benefits payable under the Aramark Agreement relating to\nEmployment and Post-Employment Competition of which this Exhibit is a part, except as provided in Section 3(b)\nhereof. Notice of termination without Cause or for Good Reason shall be given in accordance with Section 13, and shall\nindicate the specific termination provision hereunder relied upon, the relevant facts and circumstances and the\nTermination Date.\na. Severance Payments. The Company shall pay Executive cash benefits equal to:\n(1) two times Executive's Base Salary in effect on the date of the Change of Control or the\nTermination Date, whichever is higher; provided that if any reduction of the Base Salary has occurred, then the Base\nSalary on either date shall be as in effect\n15\nimmediately prior to such reduction, payable in regular installments at such times as would otherwise be the Company's\nusual payroll practice over a period of two years; and\n(2) the higher of: (A) two times Executive's Target Bonus in effect on the date of the Change of\nControl or the Termination Date, whichever is greater; or (B) two times Executive's most recent actual annual bonus,\npayable in either case ratably in regular installments at the same time as payments are made to Executive under Section\n3(a)(1) above; provided that if any reduction of the Target Bonus has occurred, then the Target Bonus on either date shall\nbe as in effect immediately prior to such reduction; and\n(3) Executive's Target Bonus (as determined in (2), above) multiplied by a fraction, the\nnumerator of which shall equal the number of days Executive was employed by the Company in the Company fiscal year\nin which the Termination Date occurs and the denominator of which shall equal 365, payable as a cash lump sum within\nforty days after the Termination Date.\nb. Continuation of Benefits. Until the second anniversary of the Termination Date, the Company shall at\nits expense provide Executive and Executive's spouse and dependents with medical, life insurance and disability\ncoverages at the level provided to Executive immediately prior to the Change of Control; provided, however, that\nif\nExecutive becomes employed by a new employer, continuing coverage from the Company will become secondary to any\ncoverage afforded by the new employer. The Company shall also provide the benefits described in Article 6.A.2.b of the\nManagement Committee Agreement (as defined in Section 8 hereof); provided that such benefits shall continue until the\nsecond anniversary of the Termination Date (instead of the "Severance Pay Period" as defined in the Management\nCommittee Agreement).\nC. Payment of Earned But Unpaid Amounts. Within forty days after the Termination Date, the Company\nshall pay Executive the Base Salary through the Termination Date, any Bonus earned but unpaid as of the Termination\nDate for any. previously completed fiscal year of the Company, to the extent not previously deferred under a particular\ndeferred compensation plan, and reimbursement for any unreimbursed expenses properly incurred by Executive in\naccordance with Company policies prior to the Termination Date. Executive shall also receive such employee benefits,\nif\nany, to which Executive may be entitled from time to time under the employee benefit or fringe benefit plans, policies or\nprograms of the Company, other than any Company severance policy (payments and benefits in this subsection (c), the\n"Accrued Benefits").\nd. Qutplacement Counseling. For the two-year period following the Termination Date (or, if earlier, the\ndate Executive first obtains full-time employment after the Termination Date), the Company shall reimburse all\nreasonable expenses incurred by Executive for professional outplacement services by qualified consultants selected by\nExecutive, in an amount not to exceed 20% of the Executive's Base Salary in effect on the date of the Change of Control\nor the Termination Date, whichever is higher. All such reimbursement payments shall be made prior to the last day of the\nsecond calendar year following the calendar year in which the Termination Date occurs.\n16\ne. Vesting of Other Benefits. Executive shall be entitled to such accelerated vesting of outstanding\nequity-based awards or retirement plan benefits as is specified under the terms of the applicable plans, agreements and\narrangements.\n4. Mitigation.\nExecutive shall not be required to mitigate damages or the amount of any payment provided for under this\nExhibit by seeking other employment or otherwise, and, subject to Section 3(b), compensation earned from such\nemployment or otherwise shall not reduce the amounts otherwise payable under this Exhibit. No amounts payable under\nthis Exhibit shall be subject to reduction or offset in respect of any claims which the Company (or any other person or\nentity) may have against Executive.\n5. Excise Tax Consequences.\na. In the event it shall be determined that any payment, benefit or distribution (or combination thereof)\nby the Company, any of its affiliates, or one or more trusts established by the Company for the benefit of its employees,\nto or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this\nExhibit, or otherwise) (a "Payment") is subject to the excise tax imposed by Section 4999 of the Code or any interest or\npenalties\nare\nincurred\nby\nExecutive\nwith\nrespect\nto\nsuch\nexcise\ntax\n(such\nexcise\ntax,\ntogether\nwith\nany\nsuch\ninterest\nand\npenalties, hereinafter collectively referred to as the "Excise Tax"), if the net after-tax amount of such Payments, after\nExecutive has paid all taxes due thereon (including, without limitation, taxes due under Section 4999 of the Code) is less\nthan the net after-tax amount of all such Payments and benefits otherwise due to Executive in the aggregate, if such\naggregate Payments were reduced to an amount equal to 2.99 times the Executive's "base amount" (as defined in Section\n280G(b)(3) of the Code), then the aggregate amount of the payments and benefits shall be reduced to an amount that will\nequal 2.99 times the Executive's base amount. To the extent such aggregate parachute payment amounts are required to\nbe so reduced, the parachute payment amounts due to the Executive (but no non-parachute payment amounts) shall be\nreduced in the following order: (i) payments and benefits due under Section 3.a of this Exhibit shall be reduced (if\nnecessary, to zero) with amounts that are payable last reduced first; (ii) payments and benefits due in respect of any\nequity fully valued (without regard to any discounts for present value) for purposes of the calculation to be made under\nSection 280G of the Code for purposes of this Section 5 (the "280G Calculation") in reverse order of when payable; and\n(iii) payments and benefits due in respect of any options or stock appreciation rights with regard to Holdings equity\nsecurities valued under the 280G Calculation based on time of vesting shall be reduced in an order that is most beneficial\nto the Executive.\nb. All determinations required to be made under this Section 5, including whether and when a cutback is\nto be made, and the assumptions to be utilized in arriving at such determination, shall be made by such nationally\nrecognized certified public accounting firm as may be designated by the Company (the "Accounting Firm") which shall\nprovide detailed supporting calculations both to the Company and Executive within ten business days of the receipt of\nnotice from Executive that there has been a Payment, or such earlier time as is requested by the Company.\n17\nC. Notwithstanding anything contained in this Agreement or any other agreement between the Executive\nand the Company or any of its subsidiaries to the contrary, the Executive and the Company shall in good faith attempt to\nagree on steps to ensure that no payments to which the Executive would otherwise be entitled to receive pursuant to this\nAgreement or any such other agreement will be "parachute payments" (as defined in Section 280G(b)(2) of the Code).\n6. Termination for Cause.\nNothing in this Exhibit shall be construed to prevent the Company from terminating Executive's\nemployment for Cause. If Executive is terminated for Cause, the Company shall have no obligation to make any\npayments under this Exhibit, except for the Accrued Benefits.\n7. Indemnification; Director's and Officer's LiabilityInsurance.\nExecutive shall, after the Termination Date, retain all rights to indemnification under applicable law, any\nagreements, (including without limitation, the Stockholders Agreement), or under the Company's Certificate of\nIncorporation or By-Laws, as they may be amended or restated from time to time. In addition, the Company shall\nmaintain Director's and Officer's liability insurance on behalf of Executive, at the level in effect immediately prior to the\nTermination Date, for the three year period following the Termination Date, and throughout the period of any applicable\nstatute of limitations.\n8. Executive Covenants.\nThis is an Exhibit B to, and forms a part of, the Aramark Agreement Relating to Employment and Post-\nEmployment Competition between Executive and Aramark (the "Management Committee Agreement"). This Exhibit\nshall not diminish in any way Executive's rights under the terms of such Management Committee Agreement, except\nthat Executive's receipt of benefits under this Exhibit is contingent upon Executive's compliance in all material respects\nwith all of the terms and conditions of the Management Committee Agreement.\n9. Costs of Proceedings.\nEach party shall pay its own costs and expenses in connection with any legal proceeding (including\narbitration), relating to the interpretation or enforcement of any provision of this Exhibit, except that the Company shall\npay such costs and expenses, including attorneys' fees and disbursements, of Executive if Executive prevails on a\nsubstantial portion of the claims in such proceeding.\n10. Assignment.\nExcept as otherwise provided herein, this Exhibit shall be binding upon, inure to the benefit of and\nbe\nenforceable by the Company and Executive and their respective heirs, legal representatives, successors and assigns. If\nthe Company shall be merged into or consolidated\n18\nwith another entity, the provisions of this Exhibit shall be binding upon and inure to the benefit of the entity surviving\nsuch merger or resulting from such consolidation. The Company shall require any successor (whether direct or indirect,\nby purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company, by\nagreement, expressly to assume and agree to perform this Exhibit in the same manner and to the same extent that the\nCompany would be required to perform it if no such succession had taken place. The provisions of this Section 10 shall\ncontinue to apply to each subsequent employer of Executive hereunder in the event of any subsequent merger,\nconsolidation or transfer of assets of such subsequent employer.\n11. Withholding.\nNotwithstanding any other provision of this Exhibit, the Company may, to the extent required by law,\nwithhold applicable federal, state and local income and other taxes from any payments due to Executive hereunder.\n12. Applicable Law.\nThis Exhibit shall be governed by and construed in accordance with the laws of the Commonwealth of\nPennsylvania, without regard to conflicts of laws principles thereof.\n13. Notice.\nFor the purpose of this Exhibit, any notice and all other communication provided for in this Exhibit shall\nbe in writing and shall be deemed to have been duly given when delivered by hand or overnight courier or three days\nafter it has been mailed by United States registered mail, return receipt requested, postage prepaid, addressed to the\nrespective addresses set forth below, or to such other address as either party may have furnished to the other in writing in\naccordance herewith, except that notice of change of address shall be effective only upon receipt.\nIf to the Company:\nAramark\nAramark Tower\n1101 Market Street\nPhiladelphia, Pennsylvania 19107\nAttention: General Counsel\nIf to Executive:\nTo the most recent address of Executive set forth in the personnel records of the Company.\n14. Entire Agreement; Modification.\n19\nThis Exhibit constitutes the entire agreement between the parties and, except as expressly provided herein\nor in Article 6.E of the Management Committee Agreement or in any benefit plan of the Company or of any of its\naffiliates, supersedes all other prior agreements expressly concerning the effect of a Change of Control occurring after\nthe date of this Agreement with respect to the relationship between the Company and Executive. This Exhibit is not, and\nnothing herein shall be deemed to create, a contract of employment between the Company and Executive. This Exhibit\nmay be changed only by a written agreement executed by the Company and Executive.\n15. Severability..\nIn the event any one or more of the provisions of this Exhibit shall be or become invalid, illegal or\nunenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected\nthereby.\n20\nSchedule A\nCERTAIN DEFINITIONS\nAs used in this Exhibit, and unless the context requires a different meaning, the following terms, when\ncapitalized, have the meaning indicated:\n1.\n"Act" means the Securities Exchange Act of 1934, as amended.\n2. "Affiliate" shall have the meaning set forth in the Stockholders Agreement.\n3.\n"Base Salary." means Executive's annual rate of base salary in effect on the date in question.\n4. "Bonus" means the amount payable to Executive under the Company's applicable annual bonus plan with\nrespect to a fiscal year of the Company.\n5. "Cause" means "cause" as defined in the Management Committee Agreement of which this Schedule A\nforms a part.\n6.\n"Change of Control" means the first to occur of any of the following:\n(i) The acquisition by any individual entity or group, within the meaning of Section 13(d)(3) or 14(d)(2)\nof the Exchange Act, other than the Investor Groups and their Affiliates (the "Permitted Holders"), directly or indirectly,\nof beneficial ownership of equity securities of the Company representing more than 50% of the voting power of the then-\noutstanding equity securities of the Company entitled to vote generally in the election of directors (the "Company Voting\nSecurities"); provided, however, that for purposes of this subsection (i), the following shall not constitute a Change of\nControl: (A) any acquisition by the Company or any Sponsor Stockholder, (B) any acquisition by any employee benefit\nplan (or related trust) sponsored or maintained by the Company or any Subsidiary, or (C) any acquisition by any Person\npursuant to a transaction which complies with clauses (A) and (B) of subsection (ii) below; or\n(ii) The consummation of a reorganization, merger or consolidation or sale or other disposition of all or\nsubstantially all of the assets of the Company or the purchase of assets or stock of another entity (a "Business\nCombination"), in each case, unless immediately following such Business Combination, (A) all or substantially all of\nthe\nbeneficial owners of the Company Voting Securities immediately prior to such Business Combination beneficially own\nmore than 50% of the then-outstanding combined voting power of the then-outstanding securities entitled to vote\ngenerally\nin\nthe\nelection\nof\ndirectors\nof\nthe\nentity\nresulting\nfrom\nsuch\nBusiness\nCombination\nin\nsubstantially\nthe\nsame\nproportion (relative to each other) as their ownership immediately prior to such Business Combination of the Company\nVoting Securities, and (B) no Person (excluding the Permitted Holders) beneficially owns, directly or indirectly, more\nthan a majority of the combined voting power of the then-outstanding voting securities of such entity\n21\nexcept to the extent that such ownership of the Company existed prior to the Business Combination; or\n(iii) A majority of the members of the Company's Board of Directors are replaced during any 12-month\nperiod by directors whose appointment or election is not endorsed by a majority of the current members of the\nCompany's Board of Directors before such replacement or is not contemplated by the Stockholders Agreement as in\neffect on the date hereof.\nNotwithstanding paragraphs (i) through (iii) above, in no event will a Change of Control be deemed to\noccur if the Permitted Holders maintain a direct or indirect Controlling Interest in the Company. A "Controlling Interest"\nin an entity shall mean beneficial ownership of more than 50% of the voting power of the outstanding equity securities of\nthe entity.\n7.\n"Code" means the Internal Revenue Code of 1986, as amended.\n8. "Company." means Aramark or any of its parents and any successor or successors thereto.\n9. "Good Reason" means any of the following actions on or after a Change of Control, without Executive's\nexpress prior written approval, other than due to Executive's Permanent Disability or death:\n(a) any decrease in Base Salary or Target Bonus;\n(b) any decrease in Executive's pension benefit opportunities or any material diminution in the\naggregate employee benefits, in each case, afforded to the Executive immediately prior to the Change of Control, but not\nincluding any such decrease or diminution that is inadvertent and that is cured within 30 days following written notice of\nsuch decrease or diminution by Executive to the Company;\n(c) any diminution in Executive's title or reporting relationship, or substantial diminution in duties or\nresponsibilities (other than solely as a result of a Change of Control in which the Company immediately thereafter is no\nlonger publicly held); or\n(d) any relocation of Executive's principal place of business of 35 miles or more, other than normal\ntravel consistent with past practice.\nExecutive shall have twelve months from the time Executive first becomes aware of the existence\nof Good Reason to resign for Good Reason.\nThe Executive must provide notice to the Company of the existence of the condition described above within a period not\nto\nexceed 90 days of the initial existence of the condition, upon the notice of which the Company shall have a period of\n30 days during which it may remedy the condition and not be required to pay the amount.\n22\n10. "Permanent Disability" means "permanent disability" as defined in the Company's long-term disability plan\nas in effect from time to time, or if there shall be no plan, the inability of Executive to perform in all material respects\nExecutive's duties and responsibilities to the Company or any affiliate for a period of six (6) consecutive months or for\nan aggregate of nine (9) months in any twenty-four (24) consecutive month period by reason of a physical or mental\nincapacity.\n11. "Permitted Holder" shall have the same meaning as set forth in the Stockholders Agreement.\n12. "Target Bonus" means the target Bonus established for Executive in respect of any given year, whether\nexpressed as a percentage of Base Salary or a dollar amount.\n23	EX-10 .2 3 ex102elcagreement.htm EXHIBIT 10.2\nExhibit 10.2\nARAMARK AGREEMENT RELATING TO EMPLOYMENT AND\nPOST-EMPLOYMENT COMPETITION\nThis Agreement is between the undersigned individual (“Employee”) and Aramark.\nRECITALS\nWHEREAS, Aramark is a leading provider of managed services to business and industry, private and public\ninstitutions, and the general public, in the following business groups: food and support services and uniform and career\napparel;\nWHEREAS, Aramark has a proprietary interest in its business and financial plans and systems, methods of\noperation and other secret and confidential information, knowledge and data (“Proprietary Information”) which includes,\nbut is not limited to, all confidential, proprietary or non-public information, ideas and concepts; annual and strategic\nbusiness plans; financial plans, reports and systems including, profit and loss statements, sales, accounting forms and\nprocedures and other information regarding costs, pricing and the financial condition of Aramark and its business\nsegments and groups; management development reviews, including information regarding the capabilities and\nexperience of Aramark employees; intellectual property, including patents, inventions, discoveries, research and\ndevelopment, compounds, recipes, formulae, reports, protocols, computer software and databases; information regarding\nAramark’s relationships with its clients, customers, and suppliers and prospective clients, partners, customers and\nsuppliers; policy and procedure manuals, information regarding materials and documents in any form or medium\n(including oral, written, tangible, intangible, or electronic) concerning any of the above, or any past, current or future\nbusiness activities of Aramark that is not publicly available; compensation, recruiting and training, and human resource\npolicies and procedures; and data compilations, research, reports, structures, compounds, techniques, methods,\nprocesses, and know-how;\nWHEREAS, all such Proprietary Information is developed at great expense to Aramark and is considered by\nAramark to be confidential trade secrets;\nWHEREAS, Employee, as a senior manager, will have access to Aramark’s Proprietary Information, directly in\nthe course of Employee’s employment, and indirectly through interaction with and presentations by other Aramark\nsenior managers at the Executive Leadership Institute, Executive Leadership Council meetings, Presidents’ Council\nmeetings and the like;\nWHEREAS, Aramark will introduce Employee to Aramark clients, customers, suppliers and others, and will\nencourage, and provide resources for, Employee to develop professional relationships with Aramark’s clients, customers,\nsuppliers and others;\nWHEREAS, Aramark will provide specialized training and skills to Employee in connection with the\nperformance of Employee’s duties at Aramark which training involves the disclosure by Aramark to Employee of\nProprietary Information;\nWHEREAS, Aramark will be vulnerable to unfair post-employment competition by Employee because\nEmployee will have access to and knowledge of Aramark’s Proprietary Information, will have a personal relationship\nwith Aramark’s clients, customers, suppliers and others, and will generate good will which Employee acknowledges\nbelongs to Aramark;\nNOW, THEREFORE, in consideration of Employee’s employment with Aramark, the opportunity to receive the\ngrant of options to purchase common stock of Aramark, severance and other post-employment benefits provided for\nherein (including pursuant to Exhibit B hereto to which Employee acknowledges Employee is not otherwise entitled),\nand for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Employee\nagrees to enter into this Agreement with Aramark as a condition of employment pursuant to which Aramark will limit\nEmployee’s right to compete against Aramark during and following termination of employment on the terms set forth in\nthis Agreement. Intending to be legally bound, the parties agree as follows:\nARTICLE 1\nNON-DISCLOSURE AND NON-DISPARAGEMENT\nEmployee shall not, during or after termination of employment, directly or indirectly, in any manner utilize or\ndisclose to any person, firm, corporation, association or other entity, except where required by law, any Proprietary\nInformation which is not generally known to the public, or has not otherwise been disclosed or recognized as standard\npractice in the industries in which Aramark is engaged. Employee shall, during and after termination of employment,\nrefrain from making any statements or comments of a defamatory or disparaging nature to any third party regarding\nAramark, or any of Aramark’s officers, directors, personnel, policies or products, other than to comply with law.\nARTICLE 2\nNON-COMPETITION\nA. Subject to Article 2. B . below, Employee, during Employee’s period of employment with Aramark, and for a\nperiod of two years following the voluntary or involuntary termination of employment, shall not, without Aramark’s\nwritten permission, which shall be granted or denied in Aramark’s sole discretion, directly or indirectly, associate with\n(including, but not limited to, association as a sole proprietor, owner, employer, partner, principal, investor, joint\nventurer, shareholder, associate, employee, member, consultant, contractor or otherwise), or acquire or maintain\nownership interest in, any Business which is competitive with that conducted by or developed for later implementation\nby Aramark at any time during the term of Employee’s employment, provided, however, if Employee’s employment is\ninvoluntarily terminated by Aramark for any reason other than Cause (as defined herein), or (ii) terminated by Employee\nfor Good Reason (as defined in Exhibit B) at any time following a Change of Control (as defined in Exhibit B) occurring\nafter the date of this Agreement, then the term of the non-competition provision set forth herein will be modified to be\neighteen months following such termination of employment. For purposes of this Agreement, “Business” shall be\ndefined as a person, corporation, firm, LLC, partnership, joint venture or other entity. Nothing in the foregoing shall\n2\nprevent Employee from investing in a Business that is or becomes publicly traded, if Employee’s ownership is as a\npassive investor of less than 1% of the outstanding publicly traded stock of the Business.\nB. The provision set forth in Article 2.A above, shall apply to the full extent permitted by law (i) in all fifty\nstates, and (ii) each foreign country, possession or territory in which Aramark may be engaged in, or have plans to\nengage in, business (x) during Employee’s period of employment, or (y) in the case of a termination of employment, as\nof the effective date of such termination or at any time during the twenty-four month period prior thereto.\nC. Employee acknowledges that these restrictions are reasonable and necessary to protect the business interests\nof Aramark, and that enforcement of the provisions set forth in this Article 2 will not unnecessarily or unreasonably\nimpair Employee’s ability to obtain other employment following the termination (voluntary or involuntary) of\nEmployee’s employment with Aramark. Further, Employee acknowledges that the provisions set forth in this Article 2\nshall apply if Employee’s employment is involuntarily terminated by Aramark for Cause; as a result of the elimination of\nemployee’s position; for performance-related issues; or for any other reason or no reason at all.\nARTICLE 3\nNON-SOLICITATION\nDuring the period of Employee’s employment with Aramark and for a period of two years following the\ntermination of Employee’s employment, regardless of the reason for termination, Employee shall not, directly or\nindirectly: (i) induce or encourage any employee of Aramark to leave the employ of Aramark, (ii) hire any individual\nwho was an employee of Aramark as of the date of Employee’s termination of employment or within a six month period\nprior to such date, or (iii) induce or encourage any customer, client, supplier or other business relation of Aramark to\ncease or reduce doing business with Aramark or in any way interfere with the relationship between any such customer,\nclient, supplier or other business relation and Aramark.\nARTICLE 4\nDISCOVERIES AND WORKS\nEmployee hereby irrevocably assigns, transfers, and conveys to Aramark to the maximum extent permitted by\napplicable law Employee’s right, title and interest now or hereinafter acquired, in and to all Discoveries and Works (as\ndefined below) created, invented, designed, developed, improved or contributed to by Employee, either alone or jointly\nwith others, while employed by Aramark and within the scope of Employee’s employment and/or with the use of\nAramark’s resources. The terms “Discoveries and Works” include all works of authorship, inventions, intellectual\nproperty, materials, documents, or other work product (including, without limitation, Proprietary Information, patents\nand patent applications, patentable inventions, research, reports, software, code, databases, systems, applications,\npresentations, textual works, graphics and audiovisual materials). Employee shall have the burden of proving that any\nmaterials or works created, invented, designed, developed, contributed to or improved by\n3\nEmployee that are implicated by or relevant to employment by Aramark are not implicated by this provision. Employee\nagrees to (i) keep accurate records and promptly notify, make full disclosure to, and execute and deliver any documents\nand to take any further actions requested by Aramark to assist it in validating, effectuating, maintaining, protecting,\nenforcing, perfecting, recording, patenting or registering any of its rights hereunder, and (ii) renounce any and all claims,\nincluding, without limitation, claims of ownership and royalty, with respect to all Discoveries and Works and all other\nproperty owned or licensed by Aramark. Any Discoveries and Works that, within six months after the termination of\nEmployee’s employment with Aramark, are made, disclosed, reduced to a tangible or written form or description, or are\nreduced to practice by Employee and which pertain to the business carried on or products or services being sold or\ndeveloped by Aramark at the time of such termination shall, as between Employee and Aramark, be presumed to have\nbeen made during such employment with Aramark. Employee acknowledges that, to the fullest extent permitted by law,\nall Discoveries and Works shall be deemed “works made for hire” under the Copyright Act of 1976, as amended, 17\nU.S .C . Section 101. Employee hereby grants Aramark a perpetual, nonexclusive, royalty-free, worldwide, assignable,\nsublicensable license under all rights and intellectual property rights (including patent, industrial property, copyright,\ntrademark, trade secret, unfair competition and related laws) in any Works and Discoveries, for all purposes in\nconnection with Aramark’s current and future business, that Employee has created, invented, designed, developed,\nimproved or contributed to prior to Employee’s employment with Aramark that are relevant to or implicated by such\nemployment (“Prior Works”). Any Prior Works are disclosed by Employee in Schedule 1.\nARTICLE 5\nREMEDIES\nEmployee acknowledges that in the event of any violation by Employee of the provisions set forth in Articles 1,\n2, 3 or 4 above, Aramark will sustain serious, irreparable and substantial harm to its business, the extent of which will be\ndifficult to determine and impossible to fully remedy by an action at law for money damages. Accordingly, Employee\nagrees that, in the event of such violation or threatened violation by Employee, Aramark shall be entitled to an injunction\nbefore trial before any court of competent jurisdiction as a matter of course upon the posting of not more than a nominal\nbond, in addition to all such other legal and equitable remedies as may be available to Aramark. If Aramark is required\nto enforce the provisions set forth in Articles 2 and 3 above by seeking an injunction, Employee agrees that the relevant\ntime periods set forth in Articles 2 and 3 shall commence with the entry of the injunction. Employee further agrees that,\nin the event any of the provisions of this Agreement are determined by a court of competent jurisdiction to be invalid,\nillegal, or for any reason unenforceable as written, such court shall substitute a valid provision which most closely\napproximates the intent and purpose of the invalid provision and which would be enforceable to the maximum extent\npermitted by law.\nARTICLE 6\nPOST-EMPLOYMENT BENEFITS\n4\nA. If Employee’s employment is terminated by Aramark for any reason other than Cause, Employee shall be\nentitled to the following post-employment benefits:\n1. Severance Pay: Employee shall receive severance payments equivalent to Employee’s monthly base\nsalary as of the effective date of termination for twelve (12) months, should the Employee have less than one (1) year of\ncontinuous service with Aramark completed from the date of hire; and for eighteen (18) months, should the Employee\nhave one (1) year or more of continuous service with Aramark completed from the date of hire. Severance payments\nshall commence with the Employee’s effective date of termination and shall be made in accordance with Aramark’s\nnormal payroll cycle. The period during which Employee receives severance payments shall be referred to as the\n“Severance Pay Period.”\n2. Other Post-Employment Benefits\n(a) Basic Group medical and life insurance coverages shall continue under then prevailing terms\nduring the Severance Pay Period; provided, however, that if Employee becomes employed by a new employer during\nthat period, continuing coverage from Aramark will become secondary to any coverage afforded by the new employer.\nEmployee’s share of the premiums will be deducted from Employee’s severance payments. Basic Group medical\ncoverage provided during such period shall be applied against Aramark’s obligation to continue group medical coverage\nunder the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”). Upon termination of basic group\nmedical and life coverages, Employee may convert such coverages to individual policies to the extent allowable under\nthe terms of the plans providing such coverages.\n(b) If, at the time of termination, Aramark is providing Employee with a leased vehicle, then\nAramark will continue to provide the leased vehicle through the Severance Pay Period under the same terms and\nconditions as in effect at the time of the Employee’s termination. At the expiration of the Severance Pay Period,\nEmployee must return the leased vehicle to Aramark unless the Employee elects to purchase the vehicle in accordance\nwith the Executive Leadership Council policy then in effect. If Employee is receiving a car allowance at the time of the\nEmployee’s termination, such car allowance will continue to be paid through the Severance Pay Period. At the expiration\nof the Severance Pay Period, the Employee will cease being paid a car allowance.\n(c) Employee’s eligibility to participate in all other benefit and compensation plans, including,\nbut not limited to the Management Incentive Bonus, Long Term Disability, any nonqualified retirement plans, and any\nstock option or ownership plans, shall terminate as of the effective date of Employee’s termination unless provided\notherwise under the terms of a particular plan, provided, however, that participation in plans and programs made\navailable solely to Executive Leadership Council members, including, but not limited to the Executive Leadership\nCouncil Medical Plan, shall cease as of the effective date of termination or the date Employee’s Executive Leadership\nCommittee membership ceases, whichever occurs\n5\nfirst. Employee, however, shall have certain rights to continue the Executive Leadership Council Medical Plan under\nCOBRA.\nB. Termination for “Cause” shall be defined as termination of employment due to: (i) conviction or plea of\nguilty or nolo contendere to a felony, (ii) intentional fraud or dishonesty with respect to Aramark that causes material and\ndemonstrable harm to Aramark, (iii) willful and continuous failure to perform lawfully assigned duties that are consistent\nwith the Employee’s position with Aramark, (iv) willful violation of Aramark’s Business Conduct Policy that causes\nmaterial harm to Aramark or its business reputation, or (v) intentionally working against the best interests of Aramark; in\nany case of conduct described in clause (ii)-(v), only if such conduct continues beyond ten business days after receipt by\nthe Employee from Aramark of a written demand to cure such conduct.\nC. If Employee is terminated by Aramark for reasons other than Cause, Employee will receive the severance\npayments and other post-employment benefits during the Severance Pay Period even if Employee commences other\nemployment during such period provided such employment does not violate the terms of Article 2, and subject to the\nprovisions of Article 6.E.\nNotwithstanding anything else contained in this Article 6 to the contrary, Aramark may choose not to commence\n(or to discontinue) providing any payment or benefit unless and until Employee executes and delivers, without\nrevocation, a release in form reasonably acceptable to Aramark, as described in Article 6.E within 60 days following\nEmployee’s termination of employment; provided, however, that subject to receipt of such executed release, Aramark\nshall commence providing such payments and benefits within 75 days following the date of termination of Employee’s\nemployment.\nD. In addition to the remedies set forth in Article 5, Aramark reserves the right to terminate all severance\npayments and other post-employment benefits if Employee violates the covenants set forth in Articles 1, 2, 3 or 4 above\nin any material respect.\nE. Employee’s receipt of severance and other post-employment benefits under this Agreement is contingent on\n(i) Employee’s execution of a release in a form reasonably acceptable to Aramark, except that such release shall not\ninclude any claims by Employee to enforce Employee’s rights under, or with respect to, (1) this Agreement (including\nthe attached Exhibit B), (2) the Certificate of Incorporation and By-laws of Aramark, (3) any indemnification agreement\nbetween the Employee and Aramark, (4) any Stockholders Agreement among Aramark and the holders party thereto (the\n“Stockholders Agreement”) and any other agreement referenced therein, or (5) any Aramark benefit plan pursuant to its\nterms, and (ii) the expiration of the applicable Age Discrimination in Employment Act revocation period without such\nrelease being revoked by Employee.\nARTICLE 7\nTERM OF EMPLOYMENT\nEmployee acknowledges that Aramark has the right to terminate Employee’s employment at any time for any\nreason whatsoever, provided, however, that any termination by Aramark for\n6\nreasons other than Cause shall result in the severance and the post-employment benefits described in Article 6 above, to\nbecome due in accordance with the terms of this Agreement subject to the conditions set forth in this Agreement.\nEmployee further acknowledges that the severance payments made and other benefits provided by Aramark are in full\nsatisfaction of any obligations Aramark may have resulting from Aramark’s exercise of its right to terminate Employee’s\nemployment, except for those obligations which are intended to survive termination such as the payments to be made\npursuant to retirement plans, deferred compensation plans, conversion of insurance, and the plans and other documents\nand agreements referred to in Article 6.E above.\nARTICLE 8\nMISCELLANEOUS\nA. As used throughout this Agreement, Aramark includes Aramark and its subsidiaries and affiliates or any\ncorporation, joint venture, or other entity in which Aramark or its subsidiaries or affiliates has an equity interest in excess\nof ten percent (10%).\nB. Notwithstanding anything to the contrary contained herein, Employee shall, after termination of employment\nfor Good Reason by Employee or other than for Cause by Aramark, retain all rights to indemnification under applicable\nlaw or any agreement (including, without limitation, the Stockholders Agreement), or under Aramark’s or any parent\ncorporation’s Certificate of Incorporation or By-Laws at a level that is at least as favorable to the Employee as that\ncurrently provided. In addition, the Company shall maintain Director’s and Officer’s liability insurance on behalf of\nEmployee, at the level in effect immediately prior to such date of termination, for the three-year period following the\ndate of termination, and throughout the period of any applicable statute of limitations.\nC. In the event that it is reasonably determined by Aramark that, as a result of the deferred compensation tax\nrules under Section 409A of the Internal Revenue Code of 1986, as amended (and any related regulations or other\npronouncements thereunder) (“the Deferred Compensation Tax Rules”), any of the payments and benefits that Employee\nis entitled to under the terms of this Agreement (including under Exhibit B) may not be made at the time contemplated\nby the terms hereof or thereof, as the case may be, without causing Employee to be subject to tax under the Deferred\nCompensation Tax Rules, Aramark shall, in lieu of providing such payment or benefit when otherwise due under this\nAgreement, instead provide such payment or benefit on the first day on which such provision would not result in\nEmployee incurring any tax liability under the Deferred Compensation Tax Rules; which day, if Employee is a “specified\nemployee” within the meaning of the Deferred Compensation Tax Rules, shall be the first day of the seventh month\nfollowing the date of Employee’s termination of employment (or the earliest date as is permitted under the Deferred\nCompensation Tax Rules, without any accelerated or additional tax); provided, further, that to the extent that the amount\nof payments due under Article 6.A (or Exhibit B, as applicable) are not subject to the Deferred Compensation Tax Rules\nby virtue of the application of Treas. Reg. Sec. 1.409A-1(b)(9)(iii)(A), such payments may be made prior to the\nexpiration of such six-month period. In addition, if the commencement of any payment or benefit provided under Article\n6 that constitutes “deferred compensation”\n7\nunder the Deferred Compensation Tax Rules could, by application of the terms conditioning such payment or benefit\nupon the execution and non-revocation of a release set forth in Article 6, occur in one of two taxable years, then the\ncommencement of such payment shall begin on the first payroll date occurring in January of such second taxable year.\nTo the extent any reimbursements or in-kind benefits due to Employee under this Agreement constitute “deferred\ncompensation” under the Deferred Compensation Tax Rules, any such reimbursements or in-kind benefits shall be paid\nto Employee in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). Additionally, to the extent that\nEmployee's receipt of any in-kind benefits from Aramark or its affiliates must be delayed pursuant to this Section due to\nEmployee’s status as a “specified employee,” Employee may elect to instead purchase and receive such benefits during\nthe period in which the provision of benefits would otherwise be delayed by paying the Aramark (or its affiliates) for the\nfair market value of such benefits (as determined by Aramark in good faith) during such period. Any amounts paid by\nEmployee pursuant to the preceding sentence shall be reimbursed to Employee (with interest thereon) as described above\non the date that is the first day of the seventh month following Employee’s separation from service. In the event that any\npayments or benefits that Aramark would otherwise be required to provide under this Agreement cannot be provided in\nthe manner contemplated herein without subjecting Employee to tax under the Deferred Compensation Tax Rules,\nAramark shall provide such intended payments or benefits to Employee in an alternative manner that conveys an\nequivalent economic benefit to Employee as soon as practicable as may otherwise be permitted under the Deferred\nCompensation Tax Rules. Without limiting the generality of the foregoing, Employee may notify Aramark if he believes\nthat any provision of this Agreement (or of any award of compensation including equity compensation or benefits)\nwould cause Employee to incur any additional tax under Section 409A and, if Aramark concurs with such belief after\ngood faith review or Aramark independently makes such determination, Aramark shall, after consulting with Employee,\nuse reasonable best efforts to reform such provision to comply with Section 409A through good faith modifications to\nthe minimum extent reasonably appropriate to conform the Deferred Compensation Tax Rules; provided that neither\nAramark nor any of its employees or representatives shall have any liability to Employee with respect thereto. For\npurposes of the Deferred Compensation Tax Rules, each payment made under this Agreement (including, without\nlimitation, each installment payment due under Article 6.A and Exhibit B, as applicable) shall be designated as a\n“separate payment” within the meaning of the Deferred Compensation Tax Rules, and references herein to Employee’s\n“termination of employment” shall refer to Employee’s separation from service with Aramark and its affiliates within the\nmeaning of the Deferred Compensation Tax Rules.\nD. In the event of a Change of Control as defined in the attached Exhibit B, the provisions of Exhibit B shall\napply to Employee. Further, pursuant to the Deferred Compensation Tax Rules, Aramark, in its discretion, is permitted to\naccelerate the time and form of payments provided under the deferred compensation arrangement set forth in this\nAgreement (including Exhibit B), where the right to the payment arises due to a termination of the arrangement within\nthe 30 days preceding or the 12 months following a change in control event (as defined in the Deferred Compensation\nTax Rules).\n8\nE. If Employee’s employment with Aramark terminates solely by reason of a transfer of stock or assets of, or a\nmerger or other disposition of, a subsidiary of Aramark (whether direct or indirect), such termination shall not be\ndeemed a termination of employment by Aramark for purposes of this Agreement, provided that Aramark requires the\nsubsequent employer, by agreement, to expressly assume and agree to perform this Agreement in the same manner and\nto the same extent that Aramark would be required to perform it if no such transaction had taken place. In such case,\nEmployee acknowledges and agrees that Aramark may assign this Agreement and Aramark’s rights hereunder, and\nparticularly Articles 1, 2, 3 and 4, in its sole discretion and without advance approval by Employee. In such case,\nEmployee agrees that Aramark may assign this Agreement and all references to “Aramark” contained in this Agreement\nshall thereafter be deemed to refer to the subsequent employer.\nF. Employee shall not be required to mitigate damages or the amount of any payment provided for under this\nAgreement by seeking other employment or otherwise.\nG. This Agreement shall supersede and substitute for any previous post-employment or severance agreement\nbetween Employee and Aramark.\nH. In the event any one or more of the provisions of this Agreement shall be or become invalid, illegal or\nunenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall\nnot be affected thereby.\nI. The terms of this Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, without\nregard to conflicts of laws principles thereof. For purposes of any action or proceeding, Employee irrevocably submits to\nthe non-exclusive jurisdiction of the courts of Pennsylvania and the courts of the United States of America located in\nPennsylvania for the purpose of any judicial proceeding arising out of or relating to this Agreement, and acknowledges\nthat the designated fora have a reasonable relation to the Agreement and to the parties’ relationship with one another.\nNotwithstanding the provisions of this Article 8.I, Aramark may, in its discretion, bring an action or special proceeding\nin any court of competent jurisdiction for the purpose of seeking temporary or preliminary relief pending resolution of a\ndispute.\nJ. Employee expressly consents to the application of Article 8.I to any judicial action or proceeding arising out\nof or relating to this Agreement. Aramark shall have the right to serve legal process upon Employee in any manner\npermitted by law. In addition, Employee irrevocably appoints the Executive Vice President, Human Resources of\nAramark (or any successor) as Employee’s agent for service of legal process in connection with any such action or\nproceeding and Employee agrees that service of legal process upon such agent, who shall promptly advise Employee of\nany such service of legal process at the address of Employee then in the records of Aramark, shall be deemed in every\nrespect effective service of legal process upon Employee in any such action or proceeding.\nK. Employee hereby waives, to the fullest extent permitted by applicable law, any objection that Employee now\nor hereafter may have to personal jurisdiction or to the laying of venue of any action or proceeding brought in any court\nreferenced in Article 8.I and hereby agrees not to plead or claim the same.\n9\nL. Notwithstanding any other provision of this Agreement, Aramark may, to the extent required by law,\nwithhold applicable federal, state and local income and other taxes from any payments due to Employee hereunder.\nM. Employee and Aramark acknowledge that for purposes of Article 6, Employee’s last hire date with Aramark\nis April 6, 2015.\nN. Employee expressly acknowledges and agrees that the Incentive Compensation Recoupment Policy set forth\nin Exhibit to this Agreement is binding on Employee and that Employee is a Covered Employee as defined in that policy\nO. This Agreement shall be binding upon, inure to the benefit of and be enforceable by Aramark and Employee,\nand their respective heirs, legal representatives, successors and assigns. Employee acknowledges and agrees that this\nAgreement, including its provisions on post-employment restrictions, is specifically assignable by Aramark. Employee\nhereby consents to such future assignment and agrees not to challenge the validity of such future assignment.\nIN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have caused this Agreement to\nbe signed this 14th date of March, 2015.\n/s/ Stephen P. Bramlage, Jr.\nAramark\nStephen Bramlage, Jr.\nBy: /s/ Lynn B. McKee\n10\nSchedule 1\nPrior Works*\n11\nExhibit A\nAramark\nIncentive Compensation Recoupment Policy\nOverview\nAramark (the “Company”) has adopted this incentive compensation recoupment policy (the “Policy”) in order to\nensure that incentive compensation is paid based on accurate financial data. In the event of an accounting restatement as\ndescribed below the Company may seek recovery of incentive compensation that would have not been paid if the correct\nperformance data had been used to determine the amount payable. The Board of Directors (the “Board”) and the\nCompensation and Human Resources Committee of the Board (the “Committee”) shall have full authority to interpret\nand enforce the Policy.\nCovered Employees\nThe Policy applies to “Covered Employees” who are: the executive officers of the Company and its subsidiaries\n(as defined under Rule 3b-7 under the Securities Exchange Act of 1934, as amended) and all other direct reports of the\nChief Executive Officer of the Company.\nIncentive Compensation\nFor purposes of this Policy, “incentive compensation” means cash performance bonuses and incentive stock\nawards including performance stock units paid, granted, vested or accrued under any Company plan or agreement in the\nform of cash or Company common stock whose payment or vesting is based on the achievement of one or more financial\nmetrics.\nAccounting Restatement; Calculation of Overpayment\nIf the Board or the Committee determines that (i) incentive compensation of a Covered Employee was overpaid,\nin whole or in part, as a result of a restatement of the reported financial or operating results of the Company due to\nmaterial non-compliance with financial reporting requirements under the securities laws (unless due to a change in\naccounting policy or applicable law) and (ii) such Covered Employee has engaged in misconduct that causes or\ncontributed, directly or indirectly, to the non-compliance that resulted in the obligation to restate the Company’s reported\nfinancial or operating results, the Board or the Committee will determine, in its discretion, whether the Company shall,\nto the extent permitted by applicable law, seek to recover or cancel the incentive compensation granted, paid to, issued or\nvested in excess of the incentive compensation that would have been paid or granted to such Covered Employee or the\nincentive compensation in which such Covered Employee would have vested had the actual payment, granting or vesting\nbeen calculated based on the accurate data or restated results, as applicable (the “Overpayment”).\n12\nForms of Recovery\nIf the Board or the Committee determines to seek recovery for the Overpayment, the Company shall have the\nright to demand that the Covered Employee reimburse the Company for the Overpayment. The Board or the Committee\nshall have the discretion to determine the form, amount and timing of any repayment. To the extent the Covered\nEmployee does not make reimbursement of the Overpayment, the Company shall have the right to enforce the repayment\nthrough the reduction or cancellation of outstanding and future incentive compensation and shall also have the right to\nsue for repayment. To the extent any shares have been issued under vested awards or such shares have been sold by the\nCovered Employee, the Company shall have the right to cancel any other outstanding stock-based awards with a value\nequivalent to the Overpayment, as determined by the Board or the Committee.\nTime Period for Overpayment Review\nThe Board or the Committee may make determinations of whether the Company shall seek recovery or\ncancellation of the Overpayment at any time through the end of the third fiscal year following the year for which the\ninaccurate performance criteria were measured; provided, that if steps have been taken within such period to restate the\nCompany’s financial or operating results, the time period shall be extended until such restatement is completed. For\nillustrative purposes only, this means that if incentive compensation is paid in late calendar 2015 for performance metrics\nbased on fiscal year 2015 performance, the compensation shall be subject to review for Overpayment until the end of the\n2018 fiscal year. Notwithstanding the above, if the Board or the Committee determines that any Covered Employee\nengaged in fraud or misconduct, the Board or the Committee shall be entitled to seek recovery or cancellation of the\nOverpayment with respect to such Covered Employee for a period of six years after the act of fraud or misconduct, as\nsuch time period is calculated by the Board or Committee.\nNo Additional Payments\nIn no event shall the Company be required to award Covered Employees an additional payment if the restated or\naccurate financial results would have resulted in a higher incentive compensation payment.\nApplicability\nThis Policy applies to all incentive compensation, granted, paid or credited after February 3, 2015, except to the\nextent prohibited by applicable law or any other legal obligation of the Company. Application of the Policy does not\npreclude the Company from taking any other action to enforce a Covered Employee’s obligations to the Company,\nincluding termination of employment or institution of civil or criminal proceedings or any other remedies that may be\navailable to the Company, including such remedies contained, without limitation, in the Company’s equity grant and\nemployment agreements, whether or not there is a restatement.\nCommittee Determination Final\n13\nAny determination by the Board or the Committee (or by any officer of the Company to whom enforcement\nauthority has been delegated) with respect to this Policy shall be final, conclusive and binding on all interested parties.\nOther Laws\nThe Policy is in addition to (and not in lieu of) any right of repayment, forfeiture or right of offset against any\nCovered Employee that is required pursuant to any statutory repayment requirement implemented at any time prior to or\nfollowing the adoption of the Policy. This policy is in addition to, and is not a substitute for, the requirements of Section\n304 of the Sarbanes-Oxley Act of 2002.\nAmendment; Termination\nThe Board or the Committee may amend or terminate this Policy at any time.\nAdopted on February 3, 2015\n14\nEXHIBIT B\nTERMINATION PROTECTION PROVISIONS\nThis is an Exhibit B to, and forms a part of, the Aramark Agreement Relating to Employment and Post-\nEmployment Competition between Stephen Bramlage, Jr. (the “Executive”) and Aramark.\n1. Defined Terms.\nUnless otherwise indicated, capitalized terms used in this Exhibit which are defined in Schedule A shall\nhave the meanings set forth in Schedule A.\n2. Effective Date; Term.\nThis Exhibit shall be effective as of the 6th day of April, 2015 (the “Effective Date) and shall remain in\neffect until the later of three years following a Change of Control and the date that all of the Company’s obligations\nunder this Exhibit have been satisfied in full.\n3. Change of Control Benefits.\nIf Executive’s employment with the Company is terminated at any time within the two years following a\nChange of Control by the Company without Cause, or by Executive for Good Reason (the effective date of either such\ntermination hereafter referred to as the “Termination Date”), Executive shall be entitled to the payments and benefits\nprovided hereafter in this Section 3 and as set forth in this Exhibit. If Executive’s employment by the Company is\nterminated prior to a Change of Control by the Company (i) at the request of a party (other than the Company) involved\nin the Change of Control or (ii) otherwise in connection with or in anticipation of a Change of Control that subsequently\noccurs, Executive shall be entitled to the benefits provided hereafter in this Section 3 and as set forth in this Exhibit, and\nExecutive’s Termination Date shall be deemed to have occurred immediately following the Change of Control. Payment\nof benefits under this Exhibit shall be in lieu of any benefits payable under the Aramark Agreement relating to\nEmployment and Post-Employment Competition of which this Exhibit is a part, except as provided in Section 3(b)\nhereof. Notice of termination without Cause or for Good Reason shall be given in accordance with Section 13, and shall\nindicate the specific termination provision hereunder relied upon, the relevant facts and circumstances and the\nTermination Date.\na. Severance Payments. The Company shall pay Executive cash benefits equal to:\n(1) two times Executive’s Base Salary in effect on the date of the Change of Control or the\nTermination Date, whichever is higher; provided that if any reduction of the Base Salary has occurred, then the Base\nSalary on either date shall be as in effect\n15\nimmediately prior to such reduction, payable in regular installments at such times as would otherwise be the Company’s\nusual payroll practice over a period of two years; and\n(2) the higher of: (A) two times Executive’s Target Bonus in effect on the date of the Change of\nControl or the Termination Date, whichever is greater; or (B) two times Executive’s most recent actual annual bonus,\npayable in either case ratably in regular installments at the same time as payments are made to Executive under Section\n3(a)(1) above; provided that if any reduction of the Target Bonus has occurred, then the Target Bonus on either date shall\nbe as in effect immediately prior to such reduction; and\n(3) Executive’s Target Bonus (as determined in (2), above) multiplied by a fraction, the\nnumerator of which shall equal the number of days Executive was employed by the Company in the Company fiscal year\nin which the Termination Date occurs and the denominator of which shall equal 365, payable as a cash lump sum within\nforty days after the Termination Date.\nb. Continuation of Benefits. Until the second anniversary of the Termination Date, the Company shall at\nits expense provide Executive and Executive’s spouse and dependents with medical, life insurance and disability\ncoverages at the level provided to Executive immediately prior to the Change of Control; provided, however, that if\nExecutive becomes employed by a new employer, continuing coverage from the Company will become secondary to any\ncoverage afforded by the new employer. The Company shall also provide the benefits described in Article 6.A.2.b of the\nManagement Committee Agreement (as defined in Section 8 hereof); provided that such benefits shall continue until the\nsecond anniversary of the Termination Date (instead of the “Severance Pay Period” as defined in the Management\nCommittee Agreement).\nc. Payment of Earned But Unpaid Amounts. Within forty days after the Termination Date, the Company\nshall pay Executive the Base Salary through the Termination Date, any Bonus earned but unpaid as of the Termination\nDate for any previously completed fiscal year of the Company, to the extent not previously deferred under a particular\ndeferred compensation plan, and reimbursement for any unreimbursed expenses properly incurred by Executive in\naccordance with Company policies prior to the Termination Date. Executive shall also receive such employee benefits, if\nany, to which Executive may be entitled from time to time under the employee benefit or fringe benefit plans, policies or\nprograms of the Company, other than any Company severance policy (payments and benefits in this subsection (c), the\n“Accrued Benefits”).\nd. Outplacement Counseling. For the two-year period following the Termination Date (or, if earlier, the\ndate Executive first obtains full-time employment after the Termination Date), the Company shall reimburse all\nreasonable expenses incurred by Executive for professional outplacement services by qualified consultants selected by\nExecutive, in an amount not to exceed 20% of the Executive’s Base Salary in effect on the date of the Change of Control\nor the Termination Date, whichever is higher. All such reimbursement payments shall be made prior to the last day of the\nsecond calendar year following the calendar year in which the Termination Date occurs.\n16\ne. Vesting of Other Benefits. Executive shall be entitled to such accelerated vesting of outstanding\nequity-based awards or retirement plan benefits as is specified under the terms of the applicable plans, agreements and\narrangements.\n4. Mitigation.\nExecutive shall not be required to mitigate damages or the amount of any payment provided for under this\nExhibit by seeking other employment or otherwise, and, subject to Section 3(b), compensation earned from such\nemployment or otherwise shall not reduce the amounts otherwise payable under this Exhibit. No amounts payable under\nthis Exhibit shall be subject to reduction or offset in respect of any claims which the Company (or any other person or\nentity) may have against Executive.\n5. Excise Tax Consequences.\na. In the event it shall be determined that any payment, benefit or distribution (or combination thereof)\nby the Company, any of its affiliates, or one or more trusts established by the Company for the benefit of its employees,\nto or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this\nExhibit, or otherwise) (a “Payment”) is subject to the excise tax imposed by Section 4999 of the Code or any interest or\npenalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and\npenalties, hereinafter collectively referred to as the “Excise Tax”), if the net after-tax amount of such Payments, after\nExecutive has paid all taxes due thereon (including, without limitation, taxes due under Section 4999 of the Code) is less\nthan the net after-tax amount of all such Payments and benefits otherwise due to Executive in the aggregate, if such\naggregate Payments were reduced to an amount equal to 2.99 times the Executive’s “base amount” (as defined in Section\n280G(b)(3) of the Code), then the aggregate amount of the payments and benefits shall be reduced to an amount that will\nequal 2.99 times the Executive’s base amount. To the extent such aggregate parachute payment amounts are required to\nbe so reduced, the parachute payment amounts due to the Executive (but no non-parachute payment amounts) shall be\nreduced in the following order: (i) payments and benefits due under Section 3.a of this Exhibit shall be reduced (if\nnecessary, to zero) with amounts that are payable last reduced first; (ii) payments and benefits due in respect of any\nequity fully valued (without regard to any discounts for present value) for purposes of the calculation to be made under\nSection 280G of the Code for purposes of this Section 5 (the “280G Calculation”) in reverse order of when payable; and\n(iii) payments and benefits due in respect of any options or stock appreciation rights with regard to Holdings equity\nsecurities valued under the 280G Calculation based on time of vesting shall be reduced in an order that is most beneficial\nto the Executive.\nb. All determinations required to be made under this Section 5, including whether and when a cutback is\nto be made, and the assumptions to be utilized in arriving at such determination, shall be made by such nationally\nrecognized certified public accounting firm as may be designated by the Company (the “Accounting Firm”) which shall\nprovide detailed supporting calculations both to the Company and Executive within ten business days of the receipt of\nnotice from Executive that there has been a Payment, or such earlier time as is requested by the Company.\n17\nc. Notwithstanding anything contained in this Agreement or any other agreement between the Executive\nand the Company or any of its subsidiaries to the contrary, the Executive and the Company shall in good faith attempt to\nagree on steps to ensure that no payments to which the Executive would otherwise be entitled to receive pursuant to this\nAgreement or any such other agreement will be “parachute payments” (as defined in Section 280G(b)(2) of the Code).\n6. Termination for Cause.\nNothing in this Exhibit shall be construed to prevent the Company from terminating Executive’s\nemployment for Cause. If Executive is terminated for Cause, the Company shall have no obligation to make any\npayments under this Exhibit, except for the Accrued Benefits.\n7. Indemnification; Director’s and Officer’s Liability Insurance.\nExecutive shall, after the Termination Date, retain all rights to indemnification under applicable law, any\nagreements, (including without limitation, the Stockholders Agreement), or under the Company’s Certificate of\nIncorporation or By-Laws, as they may be amended or restated from time to time. In addition, the Company shall\nmaintain Director ’s and Officer’s liability insurance on behalf of Executive, at the level in effect immediately prior to the\nTermination Date, for the three year period following the Termination Date, and throughout the period of any applicable\nstatute of limitations.\n8. Executive Covenants.\nThis is an Exhibit B to, and forms a part of, the Aramark Agreement Relating to Employment and Post-\nEmployment Competition between Executive and Aramark (the “Management Committee Agreement”). This Exhibit\nshall not diminish in any way Executive’s rights under the terms of such Management Committee Agreement, except\nthat Executive’s receipt of benefits under this Exhibit is contingent upon Executive’s compliance in all material respects\nwith all of the terms and conditions of the Management Committee Agreement.\n9. Costs of Proceedings.\nEach party shall pay its own costs and expenses in connection with any legal proceeding (including\narbitration), relating to the interpretation or enforcement of any provision of this Exhibit, except that the Company shall\npay such costs and expenses, including attorneys’ fees and disbursements, of Executive if Executive prevails on a\nsubstantial portion of the claims in such proceeding.\n10. Assignment.\nExcept as otherwise provided herein, this Exhibit shall be binding upon, inure to the benefit of and be\nenforceable by the Company and Executive and their respective heirs, legal representatives, successors and assigns. If\nthe Company shall be merged into or consolidated\n18\nwith another entity, the provisions of this Exhibit shall be binding upon and inure to the benefit of the entity surviving\nsuch merger or resulting from such consolidation. The Company shall require any successor (whether direct or indirect,\nby purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company, by\nagreement, expressly to assume and agree to perform this Exhibit in the same manner and to the same extent that the\nCompany would be required to perform it if no such succession had taken place. The provisions of this Section 10 shall\ncontinue to apply to each subsequent employer of Executive hereunder in the event of any subsequent merger,\nconsolidation or transfer of assets of such subsequent employer.\n11. Withholding.\nNotwithstanding any other provision of this Exhibit, the Company may, to the extent required by law,\nwithhold applicable federal, state and local income and other taxes from any payments due to Executive hereunder.\n12. Applicable Law.\nThis Exhibit shall be governed by and construed in accordance with the laws of the Commonwealth of\nPennsylvania, without regard to conflicts of laws principles thereof.\n13. Notice.\nFor the purpose of this Exhibit, any notice and all other communication provided for in this Exhibit shall\nbe in writing and shall be deemed to have been duly given when delivered by hand or overnight courier or three days\nafter it has been mailed by United States registered mail, return receipt requested, postage prepaid, addressed to the\nrespective addresses set forth below, or to such other address as either party may have furnished to the other in writing in\naccordance herewith, except that notice of change of address shall be effective only upon receipt.\nIf to the Company:\nAramark\nAramark Tower\n1101 Market Street\nPhiladelphia, Pennsylvania 19107\nAttention: General Counsel\nIf to Executive:\nTo the most recent address of Executive set forth in the personnel records of the Company.\n14. Entire Agreement; Modification.\n19\nThis Exhibit constitutes the entire agreement between the parties and, except as expressly provided herein\nor in Article 6.E of the Management Committee Agreement or in any benefit plan of the Company or of any of its\naffiliates, supersedes all other prior agreements expressly concerning the effect of a Change of Control occurring after\nthe date of this Agreement with respect to the relationship between the Company and Executive. This Exhibit is not, and\nnothing herein shall be deemed to create, a contract of employment between the Company and Executive. This Exhibit\nmay be changed only by a written agreement executed by the Company and Executive.\n15. Severability.\nIn the event any one or more of the provisions of this Exhibit shall be or become invalid, illegal or\nunenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected\nthereby.\n20\nSchedule A\nCERTAIN DEFINITIONS\nAs used in this Exhibit, and unless the context requires a different meaning, the following terms, when\ncapitalized, have the meaning indicated:\n1.\n“Act” means the Securities Exchange Act of 1934, as amended.\n2.\n“Affiliate” shall have the meaning set forth in the Stockholders Agreement.\n3.\n“Base Salary” means Executive’s annual rate of base salary in effect on the date in question.\n4.\n“Bonus” means the amount payable to Executive under the Company’s applicable annual bonus plan with\nrespect to a fiscal year of the Company.\n5.\n“Cause” means “cause” as defined in the Management Committee Agreement of which this Schedule A\nforms a part.\n6.\n“Change of Control” means the first to occur of any of the following:\n(i) The acquisition by any individual entity or group, within the meaning of Section 13(d)(3) or 14(d)(2)\nof the Exchange Act, other than the Investor Groups and their Affiliates (the “Permitted Holders”), directly or indirectly,\nof beneficial ownership of equity securities of the Company representing more than 50% of the voting power of the then-\noutstanding equity securities of the Company entitled to vote generally in the election of directors (the “Company Voting\nSecurities”); provided, however, that for purposes of this subsection (i), the following shall not constitute a Change of\nControl: (A) any acquisition by the Company or any Sponsor Stockholder, (B) any acquisition by any employee benefit\nplan (or related trust) sponsored or maintained by the Company or any Subsidiary, or (C) any acquisition by any Person\npursuant to a transaction which complies with clauses (A) and (B) of subsection (ii) below; or\n(ii) The consummation of a reorganization, merger or consolidation or sale or other disposition of all or\nsubstantially all of the assets of the Company or the purchase of assets or stock of another entity (a “Business\nCombination”), in each case, unless immediately following such Business Combination, (A) all or substantially all of the\nbeneficial owners of the Company Voting Securities immediately prior to such Business Combination beneficially own\nmore than 50% of the then-outstanding combined voting power of the then-outstanding securities entitled to vote\ngenerally in the election of directors of the entity resulting from such Business Combination in substantially the same\nproportion (relative to each other) as their ownership immediately prior to such Business Combination of the Company\nVoting Securities, and (B) no Person (excluding the Permitted Holders) beneficially owns, directly or indirectly, more\nthan a majority of the combined voting power of the then-outstanding voting securities of such entity\n21\nexcept to the extent that such ownership of the Company existed prior to the Business Combination; or\n(iii) A majority of the members of the Company’s Board of Directors are replaced during any 12-month\nperiod by directors whose appointment or election is not endorsed by a majority of the current members of the\nCompany’s Board of Directors before such replacement or is not contemplated by the Stockholders Agreement as in\neffect on the date hereof.\nNotwithstanding paragraphs (i) through (iii) above, in no event will a Change of Control be deemed to\noccur if the Permitted Holders maintain a direct or indirect Controlling Interest in the Company. A “Controlling Interest”\nin an entity shall mean beneficial ownership of more than 50% of the voting power of the outstanding equity securities of\nthe entity.\n7.\n“Code” means the Internal Revenue Code of 1986, as amended.\n8.\n“Company” means Aramark or any of its parents and any successor or successors thereto.\n9.\n“Good Reason” means any of the following actions on or after a Change of Control, without Executive’s\nexpress prior written approval, other than due to Executive’s Permanent Disability or death:\n(a) any decrease in Base Salary or Target Bonus;\n(b) any decrease in Executive’s pension benefit opportunities or any material diminution in the\naggregate employee benefits, in each case, afforded to the Executive immediately prior to the Change of Control, but not\nincluding any such decrease or diminution that is inadvertent and that is cured within 30 days following written notice of\nsuch decrease or diminution by Executive to the Company;\n(c) any diminution in Executive’s title or reporting relationship, or substantial diminution in duties or\nresponsibilities (other than solely as a result of a Change of Control in which the Company immediately thereafter is no\nlonger publicly held); or\n(d) any relocation of Executive’s principal place of business of 35 miles or more, other than normal\ntravel consistent with past practice.\nExecutive shall have twelve months from the time Executive first becomes aware of the existence\nof Good Reason to resign for Good Reason.\nThe Executive must provide notice to the Company of the existence of the condition described above within a period not\nto exceed 90 days of the initial existence of the condition, upon the notice of which the Company shall have a period of\n30 days during which it may remedy the condition and not be required to pay the amount.\n22\n10.\n“Permanent Disability” means “permanent disability” as defined in the Company’s long-term disability plan\nas in effect from time to time, or if there shall be no plan, the inability of Executive to perform in all material respects\nExecutive’s duties and responsibilities to the Company or any affiliate for a period of six (6) consecutive months or for\nan aggregate of nine (9) months in any twenty-four (24) consecutive month period by reason of a physical or mental\nincapacity.\n11.\n“Permitted Holder” shall have the same meaning as set forth in the Stockholders Agreement.\n12.\n“Target Bonus” means the target Bonus established for Executive in respect of any given year, whether\nexpressed as a percentage of Base Salary or a dollar amount.\n23
+f682ed5f189c012f7e85b39e9d574e86.pdf	effective_date jurisdiction party term	EX-99.D.7 18 c78736exv99wdw7.htm FORM OF CONFIDENTIALITY/NON-COMPETITION AGREEMENT\nCONFIDENTIALITY AND\nNON-COMPETITION AGREEMENT\nReference is made to the Acquisition Agreement, dated as of July 30, 2003 (the “Acquisition Agreement”), by and between Alloy, Inc., a\nDelaware corporation (“Parent”), Dodger Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Parent (“Sub”), and\ndELiA*s Corp., a Delaware corporation (the “Company”), pursuant to which Parent and/or Sub will make a tender offer for all of the common stock\nof the Company following which Sub will be merged with and into the Company (the “Merger”) with the result that the Company will become a\nwholly-owned subsidiary of Parent. [\n] is a stockholder of the Company and, therefore, indirectly the principal owner of a significant portion\nof the goodwill of the Company being transferred to Parent pursuant to the terms of the Acquisition Agreement. [\n] is also an employee of\nthe Company and has unique knowledge of a highly sensitive nature regarding the Company, its business and its intellectual property, such that were\n[\n] to use such knowledge in competition with the Company or Parent, the value of the Company and its goodwill would be diminished\nmaterially. Accordingly, the Company shall pay to [\n]thesumof$[\n]. Capitalized terms used but not otherwise defined herein shall\nhave the meanings given them in the Acquisition Agreement.\nNOW, THEREFORE, in consideration of the sum referenced above, and for other good and valuable consideration, the receipt and sufficiency\nof which are hereby acknowledged, [\n] hereby agrees as follows:\nNon-Competition.\nDefinition of Competitive Business. For purposes of this Agreement, “Competitive Business” shall mean:\n(1) the sale, advertising and marketing of apparel, accessories, footwear, and bedding through direct sales (catalogue, internet and other\ndirect means) directed principally at people in the 10 to 24 year age group (“Generation Y Members”); and\n(2) the sale, advertising and marketing of apparel, accessories, footwear, and bedding through retail brick and mortar locations directed\nprincipally at Generation Y Members.\nNon-Competition. From the date hereof until January 31, 2006 (the “Non-Compete Period”), [\n] shall not, directly or indirectly,\nwithout the prior written consent of Parent, individually or in partnership with, as part of a joint venture with, or otherwise in conjunction in any\nother manner with any other Person:\nbe engaged in any manner whatsoever, including, without limitation, as an employer, employee, owner, partner, consultant, adviser,\nprincipal, agent, stockholder, member or proprietor, in any Competitive Business; or\nadvise, invest in, lend money to, guarantee the debts or obligations of, or otherwise have any other financial interest in any Competitive\nBusiness.\nNotwithstanding the foregoing, nothing herein shall be deemed to prohibit [\n] from engaging in Permitted Activities. For purposes of this\nAgreement, “Permitted Activities” shall mean (a) owning not more than 5% of the outstanding stock of a publicly-held company engaged in a\nCompetitive Business; (b) engaging, directly or indirectly, in any manner in any of the activities that are not within the definition of Competitive\nBusiness; and (c) becoming employed or engaged by an entity that is engaged in a Competitive Business but only if [\n] is not engaged, and\ndoes not participate in, either directly or indirectly, the Competitive Business. [\n] represents and warrants that his experiences and\ncapabilities are such that he can obtain employment in business engaged in other or different lines of business and that the enforcement of a remedy\nby way of injunction will not prevent him from earning a livelihood.\nTransition; Non-Interference. During the Non-Compete Period, [\n] shall not, directly or indirectly, take any action that is designed or\nintended to have the effect of discouraging any lessor, licensor, customer, supplier, or other business associate of the Company from maintaining the\nsame business relationships with the Company after the date hereof as it maintained with the Company prior to the date hereof.\nNon-Solicitation of Employees. [\n] acknowledges the importance to the businesses carried on by the Company, Parent and their\nsubsidiaries or affiliates of the human resources engaged by and developed by such party. Accordingly, [\n] covenants and agrees that, during\nthe Non-Compete Period, [\n] shall not, directly or indirectly, induce or solicit or assist any third party to induce, solicit or offer employment\nto any employee of the Company (each a “Protected Party”) or, in the case of employees and consultants, to terminate, interfere with, or materially\nalter any employment or consultancy arrangement with the Company. The parties acknowledge that placing advertisements soliciting employees of\nthe type then employed by the Company and Parent in newspapers, on Internet job sites or similar media generally accessible to the public shall not\nbe deemed to be a breach of this Section.\nConfidentiality. [\n] acknowledges that the Company and Parent have developed, used and maintained trade secrets and other\nconfidential and proprietary information including, without limitation, training materials, personnel information relating to their employees,\noperating procedures, marketing information directed at Generation Y Members, profit and loss information with respect to their retail business,\nselling strategies directed at Generation Y Members, retail customer lists, and retail customer information (the “Confidential Information”), and\nthe Company and Parent have taken, and shall continue to take, and expect [\n] to take during the Non-Compete Period, all commercially\nreasonable measures to protect the confidentiality of such Confidential Information. It is understood that for purposes of this Agreement,\n“Confidential Information” does not include (i) information that is in the public domain at the time of [\n]’s receipt thereof, (ii) otherwise\nbecomes public other than as a result of [\n]’s breach of his agreement hereunder, (iii) is rightfully received by [\n] from a third party\nwithout any obligation of confidentiality to the Company and/or Parent, (iv) is independently developed by [\n].\n[\n] acknowledges that during his involvement with the Company, he has had\n2\ndirect access to, and knowledge of, the Confidential Information, and [\n] further acknowledges that if he becomes employed or affiliated\nwith any competitor of the Company and/or Parent in violation of his obligations in Section 1 of this Agreement, it is possible that he would disclose\nthe Confidential Information to such competitor. [\n] hereby covenants and agrees that all such Confidential Information is and shall\nremain the sole property of the Company and/or, and that he will hold in strictest confidence, and will not disclose to any business, firm, entity or\nperson, either directly or indirectly, any of the Confidential Information during the Non-Compete Period. [\n] understands that the terms of\nthis paragraph are in addition to, and not in lieu of, any legal or other contractual obligations that [\n] may have relating to the protection\nof the Confidential Information. Notwithstanding the foregoing, [\n] shall not be prohibited from disclosing the Confidential Information\nin order, and only to the extent necessary, to comply with a valid court order, in which case [\n] shall give the Company and/or Parent five\n(5) days written notice prior to disclosing the Confidential Information, to the extent permitted by Court order.\nProvisions Necessary and Reasonable. The parties agree that (i) the provisions of Sections 1, 2 and 3 are necessary and reasonable to protect the\nConfidential Information and the goodwill of the Company and/or Parent; (ii) the specific time, geography and scope of the provisions set forth in\nSections 1, 2 and 3 are reasonable and necessary to protect the business interests of the Company and/or Parent; and (iii) in the event of a breach of\nany agreement set forth in Section 1, 2 or 3, the Company and/or Parent might suffer substantial irreparable harm and that the Company and/or\nParent might not have an adequate remedy at law for such breach. In recognition of the foregoing, the parties agree that in the event of a breach or\nthreatened breach of any of these covenants, in addition to such other remedies as the Company and/or Parent may have at law, without posting any\nbond or security or requirement for proof of actual damages, the Company and/or Parent shall be entitled to seek equitable relief, in the form of\nspecific performance, or temporary, preliminary or permanent injunctive relief, or any other equitable remedy which then may be available. The\nseeking of such injunction or order shall not affect the Company’s or Parent’s right to seek and obtain damages or other equitable relief on account of\nany such actual or threatened breach.\nGoverning Law; Choice of Venue. This Agreement has been negotiated and executed, is made and is to be performed in the State of New York,\nand shall be governed and construed in accordance with the laws of the State of New York, without regard to any otherwise applicable conflicts of\nlaws except as they may be preempted by, or in conflict with, any federal laws, rules, regulations or regulatory action. The parties agree that any\naction, demand, claim or counterclaim relating to the terms and provisions of this Agreement, or to its breach, shall be commenced in New York in a\ncourt of competent jurisdiction. The parties further acknowledge that venue shall lie exclusively in any state court of the State of New York or any\nFederal District Court located in New York.\nSeverability. The invalidity, illegality or unenforceability of any particular provision or part of any provision of this Agreement under any\napplicable law shall not affect the other provisions or parts thereof, which shall remain in full force and effect, and any such invalid, illegal or\nunenforceable provision or part thereof shall be deemed modified to the extent necessary to make it valid, legal or enforceable under any applicable\nlaw.\n3\nCounterparts. This Agreement may be executed in any number of counterparts, each of which for all purposes shall be deemed to be original\nand all of which taken together shall constitute one and the same instrument.\nEntire Agreement. This Agreement constitutes the entire agreement between and among the parties with respect to the subject matter hereof,\nrecites the sole consideration for the promises exchanged and supercedes any prior agreements with respect to the subject matter hereof. In reaching\nthis Agreement, neither party has relied upon any representation or promise except those set forth herein.\nAmendment and Waiver. The terms of this Agreement may not be modified, waived, changed, discharged or terminated, except by an\nagreement in writing signed by the party against whom or which such modification, waiver, change, discharge or termination is sought to be\nenforced. No term or condition of this Agreement shall be deemed to have been waived, nor shall there by any estoppel against enforcement of any\nprovision of this Agreement, except by written instrument of the party charged with such waiver or estoppel. No such written waiver shall be deemed\na continuing waiver unless specifically stated therein, and each such waiver shall operate only as to the specific term or condition waived and shall\nnot constitute a waiver of such term or condition for the future or as to any act other than that specifically waived.\nConstruction. The parties agree that the terms and conditions of this Agreement are the result of negotiations between the parties and/or their\ncounsel, and that this Agreement shall not be construed in favor of or against either party by reason of the extent to which either party or its counsel\nparticipated in the drafting of this Agreement.\nNotices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed given if delivered\npersonally or sent by overnight courier (providing proof of delivery) to the parties at the following addresses (or at such other address for a party as\nshall be specified by like notice):\n(a) To[\n], at:\n[\n]\nc/o dELiA*s Corp.\n151 West 26th Street\nNew York, New York 10001\n(b) To the Company, at:\ndELiA*s Corp.\n151 West 26th Street\nNew York, New York 10001\nAttention: General Counsel\n4\nWith copies to:\nAlloy, Inc.\n151 West 26th Street\nNew York, New York 10001\nAttention: General Counsel\nand\nKatten Muchin Zavis Rosenman\n1025 Thomas Jefferson Street, NW\nSuite 700 East Lobby\nWashington, DC 20007\nAttention: Richard M. Graf\nSuccessors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and any of their successors and\nassigns. In addition, the Company and/or Parent may assign their rights and obligations hereunder to any of its or their affiliates or to the purchaser\nof or successor to (i) all or a significant portion of the Company’s business or assets, or (ii) that aspect of the Company’s business in which\n[\n] is principally involved in, in each case whether by way of merger, stock sale, asset sale or otherwise, provided that no such assignment\nshall relieve or excuse the Company from its obligation to pay [\n] under this Agreement. Except as set forth in the prior sentence, this\nAgreement may not be assignable by any party hereto without the prior written consent of the other parties.\nCaptions. The captions in this Agreement are for convenience only and shall not be construed to affect the meaning of any provisions herein.\nKnowing and Voluntary Execution. [\n] acknowledges that he has read and fully understands the terms of this Agreement, that he\nobtained legal advice in connection with this Agreement, and that he is signing it knowingly and voluntarily.\nIN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Confidentiality Agreement to be executed and delivered on\nthe date first above written.\n[\n]\nAgreed to and Accepted:\nALLOY, INC.\nPrint Name:\nTitle:\n5\nDELIA*S CORP.\nPrint Name:\nTitle:\nDate:\n6\nExhibit A\nPursuant to the Confidentiality and Non-Competition Agreement by and between Stephen I. Kahn and the Surviving Corporation, Mr. Kahn will\nreceive a payment from the Surviving Corporation in the sum of $450,000, payable $100,000 in the first year and the balance to be paid in equal\ninstallments payable over five years.\nPursuant to the Confidentiality and Non-Competition Agreement by and between Evan Guillemin and the Surviving Corporation, Mr. Guillemin\nwill receive a payment from the Surviving Corporation in the sum of $100,000, payable $50,000 on or before January 31, 2005 and $50,000 on or\nbefore January 31, 2006.\nPursuant to the Confidentiality and Non-Competition Agreement by and between Christopher C. Edgar and the Surviving Corporation,\nMr. Edgar will receive a payment from the Surviving Corporation in a lump sum amount of $50,000.	EX-99.D.7 18 c78736exv99wdw7.htm FORM OF CONFIDENTIALITY/NON-COMPETITION AGREEMENT\nCONFIDENTIALITY AND\nNON-COMPETITION AGREEMENT\nReference is made to the Acquisition Agreement, dated as of July 30, 2003 (the “Acquisition Agreement”), by and between Alloy, Inc., a\nDelaware corporation (“Parent”), Dodger Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Parent (“Sub”), and\ndELiA*s Corp., a Delaware corporation (the “Company”), pursuant to which Parent and/or Sub will make a tender offer for all of the common stock\nof the Company following which Sub will be merged with and into the Company (the “Merger”) with the result that the Company will become a\nwholly-owned subsidiary of Parent. [ ]is a stockholder of the Company and, therefore, indirectly the principal owner of a significant portion\nof the goodwill of the Company being transferred to Parent pursuant to the terms of the Acquisition Agreement. [ ]is also an employee of\nthe Company and has unique knowledge of a highly sensitive nature regarding the Company, its business and its intellectual property, such that were\n[ ] to use such knowledge in competition with the Company or Parent, the value of the Company and its goodwill would be diminished\nmaterially. Accordingly, the Company shall pay to [ ] the sum of $[ ]. Capitalized terms used but not otherwise defined herein shall\nhave the meanings given them in the Acquisition Agreement.\nNOW, THEREFORE, in consideration of the sum referenced above, and for other good and valuable consideration, the receipt and sufficiency\nof which are hereby acknowledged, [ ] hereby agrees as follows:\nNon-Competition.\nDefinition of Competitive Business. For purposes of this Agreement, “Competitive Business” shall mean:\nD the sale, advertising and marketing of apparel, accessories, footwear, and bedding through direct sales (catalogue, internet and other\ndirect means) directed principally at people in the 10 to 24 year age group (“Generation Y Members™); and\n) the sale, advertising and marketing of apparel, accessories, footwear, and bedding through retail brick and mortar locations directed\nprincipally at Generation Y Members.\nNon-Competition. From the date hereof until January 31, 2006 (the “Non-Compete Period”), [ ] shall not, directly or indirectly,\nwithout the prior written consent of Parent, individually or in partnership with, as part of a joint venture with, or otherwise in conjunction in any\nother manner with any other Person:\nbe engaged in any manner whatsoever, including, without limitation, as an employer, employee, owner, partner, consultant, adviser,\nprincipal, agent, stockholder, member or proprietor, in any Competitive Business; or\nadvise, invest in, lend money to, guarantee the debts or obligations of, or otherwise have any other financial interest in any Competitive\nBusiness.\nNotwithstanding the foregoing, nothing herein shall be deemed to prohibit [ ] from engaging in Permitted Activities. For purposes of this\nAgreement, “Permitted Activities” shall mean (a) owning not more than 5% of the outstanding stock of a publicly-held company engaged in a\nCompetitive Business; (b) engaging, directly or indirectly, in any manner in any of the activities that are not within the definition of Competitive\nBusiness; and (c) becoming employed or engaged by an entity that is engaged in a Competitive Business but only if [ ] is not engaged, and\ndoes not participate in, either directly or indirectly, the Competitive Business. [ ] represents and warrants that his experiences and\ncapabilities are such that he can obtain employment in business engaged in other or different lines of business and that the enforcement of a remedy\nby way of injunction will not prevent him from earning a livelihood.\nTransition; Non-Interference. During the Non-Compete Period, [ ] shall not, directly or indirectly, take any action that is designed or\nintended to have the effect of discouraging any lessor, licensor, customer, supplier, or other business associate of the Company from maintaining the\nsame business relationships with the Company after the date hereof as it maintained with the Company prior to the date hereof.\nNon-Solicitation of Employees. [ ] acknowledges the importance to the businesses carried on by the Company, Parent and their\nsubsidiaries or affiliates of the human resources engaged by and developed by such party. Accordingly, [ ] covenants and agrees that, during\nthe Non-Compete Period, [ ] shall not, directly or indirectly, induce or solicit or assist any third party to induce, solicit or offer employment\nto any employee of the Company (each a “Protected Party”) or, in the case of employees and consultants, to terminate, interfere with, or materially\nalter any employment or consultancy arrangement with the Company. The parties acknowledge that placing advertisements soliciting employees of\nthe type then employed by the Company and Parent in newspapers, on Internet job sites or similar media generally accessible to the public shall not\nbe deemed to be a breach of this Section.\nConfidentiality. [ ] acknowledges that the Company and Parent have developed, used and maintained trade secrets and other\nconfidential and proprietary information including, without limitation, training materials, personnel information relating to their employees,\noperating procedures, marketing information directed at Generation Y Members, profit and loss information with respect to their retail business,\nselling strategies directed at Generation Y Members, retail customer lists, and retail customer information (the “Confidential Information”), and\nthe Company and Parent have taken, and shall continue to take, and expect [ ] to take during the Non-Compete Period, all commercially\nreasonable measures to protect the confidentiality of such Confidential Information. It is understood that for purposes of this Agreement,\n“Confidential Information” does not include (i) information that is in the public domain at the time of [ I’s receipt thereof, (ii) otherwise\nbecomes public other than as a result of [ 1’s breach of his agreement hereunder, (iii) is rightfully received by [ ] from a third party\nwithout any obligation of confidentiality to the Company and/or Parent, (iv) is independently developed by [ 1.\n[ ] acknowledges that during his involvement with the Company, he has had\n2\n \ndirect access to, and knowledge of, the Confidential Information, and [ ] further acknowledges that if he becomes employed or affiliated\nwith any competitor of the Company and/or Parent in violation of his obligations in Section 1 of this Agreement, it is possible that he would disclose\nthe Confidential Information to such competitor. [ ] hereby covenants and agrees that all such Confidential Information is and shall\nremain the sole property of the Company and/or, and that he will hold in strictest confidence, and will not disclose to any business, firm, entity or\nperson, either directly or indirectly, any of the Confidential Information during the Non-Compete Period. [ ] understands that the terms of\nthis paragraph are in addition to, and not in lieu of, any legal or other contractual obligations that [ ] may have relating to the protection\nof the Confidential Information. Notwithstanding the foregoing, [ ] shall not be prohibited from disclosing the Confidential Information\nin order, and only to the extent necessary, to comply with a valid court order, in which case [ ] shall give the Company and/or Parent five\n(5) days written notice prior to disclosing the Confidential Information, to the extent permitted by Court order.\nProvisions Necessary and Reasonable. The parties agree that (i) the provisions of Sections 1, 2 and 3 are necessary and reasonable to protect the\nConfidential Information and the goodwill of the Company and/or Parent; (ii) the specific time, geography and scope of the provisions set forth in\nSections 1, 2 and 3 are reasonable and necessary to protect the business interests of the Company and/or Parent; and (iii) in the event of a breach of\nany agreement set forth in Section 1, 2 or 3, the Company and/or Parent might suffer substantial irreparable harm and that the Company and/or\nParent might not have an adequate remedy at law for such breach. In recognition of the foregoing, the parties agree that in the event of a breach or\nthreatened breach of any of these covenants, in addition to such other remedies as the Company and/or Parent may have at law, without posting any\nbond or security or requirement for proof of actual damages, the Company and/or Parent shall be entitled to seek equitable relief, in the form of\nspecific performance, or temporary, preliminary or permanent injunctive relief, or any other equitable remedy which then may be available. The\nseeking of such injunction or order shall not affect the Company’s or Parent’s right to seek and obtain damages or other equitable relief on account of\nany such actual or threatened breach.\nGoverning Law; Choice of Venue. This Agreement has been negotiated and executed, is made and is to be performed in the State of New York,\nand shall be governed and construed in accordance with the laws of the State of New York, without regard to any otherwise applicable conflicts of\nlaws except as they may be preempted by, or in conflict with, any federal laws, rules, regulations or regulatory action. The parties agree that any\naction, demand, claim or counterclaim relating to the terms and provisions of this Agreement, or to its breach, shall be commenced in New York in a\ncourt of competent jurisdiction. The parties further acknowledge that venue shall lie exclusively in any state court of the State of New York or any\nFederal District Court located in New York.\nSeverability. The invalidity, illegality or unenforceability of any particular provision or part of any provision of this Agreement under any\napplicable law shall not affect the other provisions or parts thereof, which shall remain in full force and effect, and any such invalid, illegal or\nunenforceable provision or part thereof shall be deemed modified to the extent necessary to make it valid, legal or enforceable under any applicable\nlaw.\nCounterparts. This Agreement may be executed in any number of counterparts, each of which for all purposes shall be deemed to be original\nand all of which taken together shall constitute one and the same instrument.\nEntire Agreement. This Agreement constitutes the entire agreement between and among the parties with respect to the subject matter hereof,\nrecites the sole consideration for the promises exchanged and supercedes any prior agreements with respect to the subject matter hereof. In reaching\nthis Agreement, neither party has relied upon any representation or promise except those set forth herein.\nAmendment and Waiver. The terms of this Agreement may not be modified, waived, changed, discharged or terminated, except by an\nagreement in writing signed by the party against whom or which such modification, waiver, change, discharge or termination is sought to be\nenforced. No term or condition of this Agreement shall be deemed to have been waived, nor shall there by any estoppel against enforcement of any\nprovision of this Agreement, except by written instrument of the party charged with such waiver or estoppel. No such written waiver shall be deemed\na continuing waiver unless specifically stated therein, and each such waiver shall operate only as to the specific term or condition waived and shall\nnot constitute a waiver of such term or condition for the future or as to any act other than that specifically waived.\nConstruction. The parties agree that the terms and conditions of this Agreement are the result of negotiations between the parties and/or their\ncounsel, and that this Agreement shall not be construed in favor of or against either party by reason of the extent to which either party or its counsel\nparticipated in the drafting of this Agreement.\nNotices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed given if delivered\npersonally or sent by overnight courier (providing proof of delivery) to the parties at the following addresses (or at such other address for a party as\nshall be specified by like notice):\n(a) To [ ], at:\n[ ]\nc/o dELiA*s Corp.\n151 West 26th Street\nNew York, New York 10001\n(b) To the Company, at:\ndELiA*s Corp.\n151 West 26th Street\nNew York, New York 10001\nAttention: General Counsel\n \nWith copies to:\nAlloy, Inc.\n151 West 26th Street\nNew York, New York 10001\nAttention: General Counsel\nand\nKatten Muchin Zavis Rosenman\n1025 Thomas Jefferson Street, NW\nSuite 700 East Lobby\nWashington, DC 20007\nAttention: Richard M. Graf\nSuccessors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and any of their successors and\nassigns. In addition, the Company and/or Parent may assign their rights and obligations hereunder to any of its or their affiliates or to the purchaser\nof or successor to (i) all or a significant portion of the Company’s business or assets, or (ii) that aspect of the Company’s business in which\n[ ] is principally involved in, in each case whether by way of merger, stock sale, asset sale or otherwise, provided that no such assignment\nshall relieve or excuse the Company from its obligation to pay [ ] under this Agreement. Except as set forth in the prior sentence, this\nAgreement may not be assignable by any party hereto without the prior written consent of the other parties.\nCaptions. The captions in this Agreement are for convenience only and shall not be construed to affect the meaning of any provisions herein.\nKnowing and Voluntary Execution. [ ] acknowledges that he has read and fully understands the terms of this Agreement, that he\nobtained legal advice in connection with this Agreement, and that he is signing it knowingly and voluntarily.\nIN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Confidentiality Agreement to be executed and delivered on\nthe date first above written.\nAgreed to and Accepted:\nALLQY, INC.\nPrint Name:\nTitle:\nDELIA*S CORP.\nPrint Name:\nTitle:\nDate:\nExhibit A\nPursuant to the Confidentiality and Non-Competition Agreement by and between Stephen 1. Kahn and the Surviving Corporation, Mr. Kahn will\nreceive a payment from the Surviving Corporation in the sum of $450,000, payable $100,000 in the first year and the balance to be paid in equal\ninstallments payable over five years.\nPursuant to the Confidentiality and Non-Competition Agreement by and between Evan Guillemin and the Surviving Corporation, Mr. Guillemin\nwill receive a payment from the Surviving Corporation in the sum of $100,000, payable $50,000 on or before January 31, 2005 and $50,000 on or\nbefore January 31, 2006.\nPursuant to the Confidentiality and Non-Competition Agreement by and between Christopher C. Edgar and the Surviving Corporation,\nMr. Edgar will receive a payment from the Surviving Corporation in a lump sum amount of $50,000.	EX-99.D.7 18 c78736exv99wdw7.htm FORM OF CONFIDENTIALITYNON-COMPETITION AGREEMENT\nCONFIDENTIALITY AND\nNON-COMPETITION AGREEMENT\nReference is made to the Acquisition Agreement, dated as of July 30, 2003 (the "Acquisition Agreement"), by and between Alloy, Inc., a\nDelaware corporation ("Parent"), Dodger Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Parent ("Sub"), and\ndELiA*s Corp., a Delaware corporation (the "Company"), pursuant to which Parent and/or Sub will make a tender offer for all of the common stock\nof the Company following which Sub will be merged with and into the Company (the "Merger") with the result that the Company will become a\nwholly-owned subsidiary of Parent. [\n1 is a stockholder of the Company and, therefore, indirectly the principal owner of a significant portion\nof the goodwill of the Company being transferred to Parent pursuant to the terms of the Acquisition Agreement. [\n1 is also an employee of\nthe Company and has unique knowledge of a highly sensitive nature regarding the Company, its business and its intellectual property, such that were\n[\n1 to use such knowledge in competition with the Company or Parent, the value of the Company and its goodwill would be diminished\nmaterially. Accordingly, the Company shall pay to [\n] the sum of $[\n]. Capitalized terms used but not otherwise defined herein shall\nhave the meanings given them in the Acquisition Agreement.\nNOW, THEREFORE, in consideration of the sum referenced above, and for other good and valuable consideration, the receipt and sufficiency\nof which are hereby acknowledged, [\n1 hereby agrees as follows:\nNon-Competition.\nDefinition of Competitive Business. For purposes of this Agreement, "Competitive Business" shall mean:\n(1)\nthe sale, advertising and marketing of apparel, accessories, footwear, and bedding through direct sales (catalogue, internet and other\ndirect means) directed principally at people in the 10 to 24 year age group ("Generation Y Members"); and\n(2)\nthe sale, advertising and marketing of apparel, accessories, footwear, and bedding through retail brick and mortar locations directed\nprincipally at Generation Y Members.\nNon-Competition. From the date hereof until January 31, 2006 (the "Non-Compete Period"), [\n1 shall not, directly or indirectly,\nwithout the prior written consent of Parent, individually or in partnership with, as part of a joint venture with, or otherwise in conjunction in any\nother manner with any other Person:\nbe engaged in any manner whatsoever, including, without limitation, as an employer, employee, owner, partner, consultant, adviser,\nprincipal, agent, stockholder, member or proprietor, in any Competitive Business; or\nadvise, invest in, lend money to, guarantee the debts or obligations of, or otherwise have any other financial interest in any Competitive\nBusiness.\nNotwithstanding the foregoing, nothing herein shall be deemed to prohibit [\nfrom engaging in Permitted Activities. For purposes of this\nAgreement, "Permitted Activities" shall mean (a) owning not more than 5% of the outstanding stock of a publicly-held company engaged in\na\nCompetitive Business; (b) engaging, directly or indirectly, in any manner in any of the activities that are not within the definition of Competitive\nBusiness; and (c) becoming employed or engaged by an entity that is engaged in a Competitive Business but only if [\n1 is not engaged, and\ndoes not participate in, either directly or indirectly, the Competitive Business. [\n1\nrepresents and warrants that his experiences and\ncapabilities are such that he can obtain employment in business engaged in other or different lines of business and that the enforcement of a remedy\nby way of injunction will not prevent him from earning a livelihood.\nTransition; Non-Interference. During the Non-Compete Period,\n1 shall not, directly or indirectly, take any action that is designed or\nintended to have the effect of discouraging any lessor, licensor, customer, supplier, or other business associate of the Company from maintaining the\nsame business relationships with the Company after the date hereof as it maintained with the Company prior to the date hereof.\nNon-Solicitation of Employees. [\n1 acknowledges the importance to the businesses carried on by the Company, Parent and their\nsubsidiaries or affiliates of the human resources engaged by and developed by such party. Accordingly, [\n1\ncovenants and agrees that, during\nthe Non-Compete Period, [\n1 shall not, directly or indirectly, induce or solicit or assist any third party to induce, solicit or offer employment\nto any employee of the Company (each a "Protected Party") or, in the case of employees and consultants, to terminate, interfere with, or materially\nalter\nany\nemployment or consultancy arrangement with the Company. The parties acknowledge that placing advertisements soliciting employees of\nthe type then employed by the Company and Parent in newspapers, on Internet job sites or similar media generally accessible to the public shall not\nbe deemed to be a breach of this Section.\nConfidentiality. [\n1 acknowledges that the Company and Parent have developed, used and maintained trade secrets and other\nconfidential and proprietary information including, without limitation, training materials, personnel information relating to their employees,\noperating procedures, marketing information directed at Generation Y Members, profit and loss information with respect to their retail business,\nselling strategies directed at Generation Y Members, retail customer lists, and retail customer information (the "Confidential Information"), and\nthe Company and Parent have taken, and shall continue to take, and expect 1 to take during the Non-Compete Period, all commercially\nreasonable measures to protect the confidentiality of such Confidential Information. It is understood that for purposes of this Agreement,\n"Confidential Information" does not include (i) information that is in the public domain at the time of [\nI's receipt thereof, (ii) otherwise\nbecomes public other than as a result of [\nI's breach of his agreement hereunder, (iii) is rightfully received by E\n1 from a third party\nwithout any obligation of confidentiality to the Company and/or Parent, (iv) is independently developed by [\n].\nacknowledges that during his involvement with the Company, he has had\n2\ndirect access to, and knowledge of, the Confidential Information, and\nfurther acknowledges that if he becomes employed or affiliated\nwith any competitor of the Company and/or Parent in violation of his obligations in Section 1 of this Agreement, it is possible that he would disclose\nthe Confidential Information to such competitor. [\n1 hereby covenants and agrees that all such Confidential Information is and shall\nremain the sole property of the Company and/or, and that he will hold in strictest confidence, and will not disclose to any business, firm, entity or\nperson, either directly or indirectly, any of the Confidential Information during the Non-Compete Period. [\n1 understands that the terms of\nthis paragraph are in addition to, and not in lieu of, any legal or other contractual obligations that\n]\nmay have relating to the protection\nof the Confidential Information. Notwithstanding the foregoing, [\n1 shall not be prohibited from disclosing the Confidential Information\nin order, and only to the extent necessary, to comply with a valid court order, in which case I\n1 shall give the Company and/or Parent five\n(5) days written notice prior to disclosing the Confidential Information, to the extent permitted by Court order.\nProvisions Necessary and Reasonable The parties agree that (i) the provisions of Sections 1, 2 and 3 are necessary and reasonable to protect the\nConfidential Information and the goodwill of the Company and/or Parent; (ii) the specific time, geography and scope of the provisions set forth in\nSections 1, 2 and 3 are reasonable and necessary to protect the business interests of the Company and/or Parent; and (iii) in the event of a breach\nof\nany\nagreement set forth in Section 1, 2 or 3, the Company and/or Parent might suffer substantial irreparable harm and that the Company and/or\nParent might not have an adequate remedy at law for such breach. In recognition of the foregoing, the parties agree that in the event of a breach or\nthreatened breach of any of these covenants, in addition to such other remedies as the Company and/or Parent may have at law, without posting any\nbond or security or requirement for proof of actual damages, the Company and/or Parent shall be entitled to seek equitable relief, in the form\nof\nspecific performance, or temporary, preliminary or permanent injunctive relief, or any other equitable remedy which then may be available. The\nseeking of such injunction or order shall not affect the Company's or Parent's right to seek and obtain damages or other equitable relief on account\nof\nany such actual or threatened breach.\nGoverning Law; Choice of Venue. This Agreement has been negotiated and executed, is made and is to be performed in the State of New York,\nand\nshall\nbe governed and construed in accordance with the laws of the State of New York, without regard to any otherwise applicable conflicts of\nlaws except as they may be preempted by, or in conflict with, any federal laws, rules, regulations or regulatory action. The parties agree that any\naction, demand, claim or counterclaim relating to the terms and provisions of this Agreement, or to its breach, shall be commenced in New York in\na\ncourt of competent jurisdiction. The parties further acknowledge that venue shall lie exclusively in any state court of the State of New York or any\nFederal District Court located in New York.\nSeverability. The invalidity, illegality or unenforceability of any particular provision or part of any provision of this Agreement under any\napplicable law shall not affect the other provisions or parts thereof, which shall remain in full force and effect, and any such invalid, illegal or\nunenforceable provision or part thereof shall be deemed modified to the extent necessary to make it valid, legal or enforceable under any applicable\nlaw.\n3\nCounterparts. This Agreement may be executed in any number of counterparts, each of which for all purposes shall be deemed to be original\nand all of which taken together shall constitute one and the same instrument.\nEntire Agreement. This Agreement constitutes the entire agreement between and among the parties with respect to the subject matter hereof,\nrecites the sole consideration for the promises exchanged and supercedes any prior agreements with respect to the subject matter hereof. In reaching\nthis Agreement, neither party has relied upon any representation or promise except those set forth herein.\nAmendment and Waiver. The terms of this Agreement may not be modified, waived, changed, discharged or terminated, except by an\nagreement in writing signed by the party against whom or which such modification, waiver, change, discharge or termination is sought to be\nenforced. No term or condition of this Agreement shall be deemed to have been waived, nor shall there by any estoppel against enforcement of any\nprovision of this Agreement, except by written instrument of the party charged with such waiver or estoppel. No such written waiver shall be deemed\na\ncontinuing waiver unless specifically stated therein, and each such waiver shall operate only as to the specific term or condition waived and shall\nnot constitute a waiver of such term or condition for the future or as to any act other than that specifically waived.\nConstruction. The parties agree that the terms and conditions of this Agreement are the result of negotiations between the parties and/or their\ncounsel, and that this Agreement shall not be construed in favor of or against either party by reason of the extent to which either party or its counsel\nparticipated in the drafting of this Agreement.\nNotices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed given if delivered\npersonally or sent by overnight courier (providing proof of delivery) to the parties at the following addresses (or at such other address for a party as\nshall be specified by like notice):\n(a)\nTo E\n], at:\n[\n1\nc/o dELiA*s Corp.\n151 West 26th Street\nNew York, New York 10001\n(b)\nTo the Company, at:\ndELiA**s Corp.\n151 West 26th Street\nNew York, New York 10001\nAttention: General Counsel\n4\nWith copies to:\nAlloy, Inc.\n151 West 26th Street\nNew York, New York 10001\nAttention: General Counsel\nand\nKatten Muchin Zavis Rosenman\n1025 Thomas Jefferson Street, NW\nSuite 700 East Lobby\nWashington, DC 20007\nAttention: Richard M. Graf\nSuccessors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and any of their successors and\nassigns. In addition, the Company and/or Parent may assign their rights and obligations hereunder to any of its or their affiliates or to the purchaser\nof\nor successor to (i) all or a significant portion of the Company's business or assets, or (ii) that aspect of the Company's business in which\n[\nis principally involved in, in each case whether by way of merger, stock sale, asset sale or otherwise, provided that no such assignment\nshall relieve or excuse the Company from its obligation to pay [ 1 under this Agreement Except as set forth in the prior sentence, this\nAgreement may not be assignable by any party hereto without the prior written consent of the other parties.\nCaptions. The captions in this Agreement are for convenience only and shall not be construed to affect the meaning of any provisions herein.\nKnowing and Voluntary Execution. [\n1 acknowledges that he has read and fully understands the terms of this Agreement, that he\nobtained legal advice in connection with this Agreement, and that he is signing it knowingly and voluntarily.\nIN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Confidentiality Agreement to be executed and delivered on\nthe date first above written.\n[\n]\nAgreed to and Accepted:\nALLOY, INC.\nPrint Name:\nTitle:\n5\nDELIA*S CORP.\nPrint Name:\nTitle:\nDate:\n6\nExhibit A\nPursuant to the Confidentiality and Non-Competition Agreement by and between Stephen I. Kahn and the Surviving Corporation, Mr. Kahn will\nreceive a payment from the Surviving Corporation in the sum of $450,000, payable $100,000 in the first year and the balance to be paid in equal\ninstallments payable over five years.\nPursuant to the Confidentiality and Non-Competition Agreement by and between Evan Guillemin and the Surviving Corporation, Mr. Guillemin\nwill receive a payment from the Surviving Corporation in the sum of $100,000, payable $50,000 on or before January 31, 2005 and $50,000 on or\nbefore January 31, 2006.\nPursuant to the Confidentiality and Non-Competition Agreement by and between Christopher C. Edgar and the Surviving Corporation,\nMr. Edgar will receive a payment from the Surviving Corporation in a lump sum amount of $50,000.	EX-99.D.7 18 c78736exv99wdw7.htm FORM OF CONFIDENTIALITY/NON-COMPETITION AGREEMENT\nCONFIDENTIALITY AND\nNON-COMPETITION AGREEMENT\nReference is made to the Acquisition Agreement, dated as of July 30, 2003 (the “Acquisition Agreement”), by and between Alloy, Inc., a\nDelaware corporation (“Parent”), Dodger Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Parent (“Sub”), and\ndELiA*s Corp., a Delaware corporation (the “Company”), pursuant to which Parent and/or Sub will make a tender offer for all of the common stock\nof the Company following which Sub will be merged with and into the Company (the “Merger”) with the result that the Company will become a\nwholly-owned subsidiary of Parent. [\n] is a stockholder of the Company and, therefore, indirectly the principal owner of a significant portion\nof the goodwill of the Company being transferred to Parent pursuant to the terms of the Acquisition Agreement. [\n] is also an employee of\nthe Company and has unique knowledge of a highly sensitive nature regarding the Company, its business and its intellectual property, such that were\n[\n] to use such knowledge in competition with the Company or Parent, the value of the Company and its goodwill would be diminished\nmaterially. Accordingly, the Company shall pay to [\n]thesumof$[\n]. Capitalized terms used but not otherwise defined herein shall\nhave the meanings given them in the Acquisition Agreement.\nNOW, THEREFORE, in consideration of the sum referenced above, and for other good and valuable consideration, the receipt and sufficiency\nof which are hereby acknowledged, [\n] hereby agrees as follows:\nNon-Competition.\nDefinition of Competitive Business. For purposes of this Agreement, “Competitive Business” shall mean:\n(1) the sale, advertising and marketing of apparel, accessories, footwear, and bedding through direct sales (catalogue, internet and other\ndirect means) directed principally at people in the 10 to 24 year age group (“Generation Y Members”); and\n(2) the sale, advertising and marketing of apparel, accessories, footwear, and bedding through retail brick and mortar locations directed\nprincipally at Generation Y Members.\nNon-Competition. From the date hereof until January 31, 2006 (the “Non-Compete Period”), [\n] shall not, directly or indirectly,\nwithout the prior written consent of Parent, individually or in partnership with, as part of a joint venture with, or otherwise in conjunction in any\nother manner with any other Person:\nbe engaged in any manner whatsoever, including, without limitation, as an employer, employee, owner, partner, consultant, adviser,\nprincipal, agent, stockholder, member or proprietor, in any Competitive Business; or\nadvise, invest in, lend money to, guarantee the debts or obligations of, or otherwise have any other financial interest in any Competitive\nBusiness.\nNotwithstanding the foregoing, nothing herein shall be deemed to prohibit [\n] from engaging in Permitted Activities. For purposes of this\nAgreement, “Permitted Activities” shall mean (a) owning not more than 5% of the outstanding stock of a publicly-held company engaged in a\nCompetitive Business; (b) engaging, directly or indirectly, in any manner in any of the activities that are not within the definition of Competitive\nBusiness; and (c) becoming employed or engaged by an entity that is engaged in a Competitive Business but only if [\n] is not engaged, and\ndoes not participate in, either directly or indirectly, the Competitive Business. [\n] represents and warrants that his experiences and\ncapabilities are such that he can obtain employment in business engaged in other or different lines of business and that the enforcement of a remedy\nby way of injunction will not prevent him from earning a livelihood.\nTransition; Non-Interference. During the Non-Compete Period, [\n] shall not, directly or indirectly, take any action that is designed or\nintended to have the effect of discouraging any lessor, licensor, customer, supplier, or other business associate of the Company from maintaining the\nsame business relationships with the Company after the date hereof as it maintained with the Company prior to the date hereof.\nNon-Solicitation of Employees. [\n] acknowledges the importance to the businesses carried on by the Company, Parent and their\nsubsidiaries or affiliates of the human resources engaged by and developed by such party. Accordingly, [\n] covenants and agrees that, during\nthe Non-Compete Period, [\n] shall not, directly or indirectly, induce or solicit or assist any third party to induce, solicit or offer employment\nto any employee of the Company (each a “Protected Party”) or, in the case of employees and consultants, to terminate, interfere with, or materially\nalter any employment or consultancy arrangement with the Company. The parties acknowledge that placing advertisements soliciting employees of\nthe type then employed by the Company and Parent in newspapers, on Internet job sites or similar media generally accessible to the public shall not\nbe deemed to be a breach of this Section.\nConfidentiality. [\n] acknowledges that the Company and Parent have developed, used and maintained trade secrets and other\nconfidential and proprietary information including, without limitation, training materials, personnel information relating to their employees,\noperating procedures, marketing information directed at Generation Y Members, profit and loss information with respect to their retail business,\nselling strategies directed at Generation Y Members, retail customer lists, and retail customer information (the “Confidential Information”), and\nthe Company and Parent have taken, and shall continue to take, and expect [\n] to take during the Non-Compete Period, all commercially\nreasonable measures to protect the confidentiality of such Confidential Information. It is understood that for purposes of this Agreement,\n“Confidential Information” does not include (i) information that is in the public domain at the time of [\n]’s receipt thereof, (ii) otherwise\nbecomes public other than as a result of [\n]’s breach of his agreement hereunder, (iii) is rightfully received by [\n] from a third party\nwithout any obligation of confidentiality to the Company and/or Parent, (iv) is independently developed by [\n].\n[\n] acknowledges that during his involvement with the Company, he has had\n2\ndirect access to, and knowledge of, the Confidential Information, and [\n] further acknowledges that if he becomes employed or affiliated\nwith any competitor of the Company and/or Parent in violation of his obligations in Section 1 of this Agreement, it is possible that he would disclose\nthe Confidential Information to such competitor. [\n] hereby covenants and agrees that all such Confidential Information is and shall\nremain the sole property of the Company and/or, and that he will hold in strictest confidence, and will not disclose to any business, firm, entity or\nperson, either directly or indirectly, any of the Confidential Information during the Non-Compete Period. [\n] understands that the terms of\nthis paragraph are in addition to, and not in lieu of, any legal or other contractual obligations that [\n] may have relating to the protection\nof the Confidential Information. Notwithstanding the foregoing, [\n] shall not be prohibited from disclosing the Confidential Information\nin order, and only to the extent necessary, to comply with a valid court order, in which case [\n] shall give the Company and/or Parent five\n(5) days written notice prior to disclosing the Confidential Information, to the extent permitted by Court order.\nProvisions Necessary and Reasonable. The parties agree that (i) the provisions of Sections 1, 2 and 3 are necessary and reasonable to protect the\nConfidential Information and the goodwill of the Company and/or Parent; (ii) the specific time, geography and scope of the provisions set forth in\nSections 1, 2 and 3 are reasonable and necessary to protect the business interests of the Company and/or Parent; and (iii) in the event of a breach of\nany agreement set forth in Section 1, 2 or 3, the Company and/or Parent might suffer substantial irreparable harm and that the Company and/or\nParent might not have an adequate remedy at law for such breach. In recognition of the foregoing, the parties agree that in the event of a breach or\nthreatened breach of any of these covenants, in addition to such other remedies as the Company and/or Parent may have at law, without posting any\nbond or security or requirement for proof of actual damages, the Company and/or Parent shall be entitled to seek equitable relief, in the form of\nspecific performance, or temporary, preliminary or permanent injunctive relief, or any other equitable remedy which then may be available. The\nseeking of such injunction or order shall not affect the Company’s or Parent’s right to seek and obtain damages or other equitable relief on account of\nany such actual or threatened breach.\nGoverning Law; Choice of Venue. This Agreement has been negotiated and executed, is made and is to be performed in the State of New York,\nand shall be governed and construed in accordance with the laws of the State of New York, without regard to any otherwise applicable conflicts of\nlaws except as they may be preempted by, or in conflict with, any federal laws, rules, regulations or regulatory action. The parties agree that any\naction, demand, claim or counterclaim relating to the terms and provisions of this Agreement, or to its breach, shall be commenced in New York in a\ncourt of competent jurisdiction. The parties further acknowledge that venue shall lie exclusively in any state court of the State of New York or any\nFederal District Court located in New York.\nSeverability. The invalidity, illegality or unenforceability of any particular provision or part of any provision of this Agreement under any\napplicable law shall not affect the other provisions or parts thereof, which shall remain in full force and effect, and any such invalid, illegal or\nunenforceable provision or part thereof shall be deemed modified to the extent necessary to make it valid, legal or enforceable under any applicable\nlaw.\n3\nCounterparts. This Agreement may be executed in any number of counterparts, each of which for all purposes shall be deemed to be original\nand all of which taken together shall constitute one and the same instrument.\nEntire Agreement. This Agreement constitutes the entire agreement between and among the parties with respect to the subject matter hereof,\nrecites the sole consideration for the promises exchanged and supercedes any prior agreements with respect to the subject matter hereof. In reaching\nthis Agreement, neither party has relied upon any representation or promise except those set forth herein.\nAmendment and Waiver. The terms of this Agreement may not be modified, waived, changed, discharged or terminated, except by an\nagreement in writing signed by the party against whom or which such modification, waiver, change, discharge or termination is sought to be\nenforced. No term or condition of this Agreement shall be deemed to have been waived, nor shall there by any estoppel against enforcement of any\nprovision of this Agreement, except by written instrument of the party charged with such waiver or estoppel. No such written waiver shall be deemed\na continuing waiver unless specifically stated therein, and each such waiver shall operate only as to the specific term or condition waived and shall\nnot constitute a waiver of such term or condition for the future or as to any act other than that specifically waived.\nConstruction. The parties agree that the terms and conditions of this Agreement are the result of negotiations between the parties and/or their\ncounsel, and that this Agreement shall not be construed in favor of or against either party by reason of the extent to which either party or its counsel\nparticipated in the drafting of this Agreement.\nNotices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed given if delivered\npersonally or sent by overnight courier (providing proof of delivery) to the parties at the following addresses (or at such other address for a party as\nshall be specified by like notice):\n(a) To[\n], at:\n[\n]\nc/o dELiA*s Corp.\n151 West 26th Street\nNew York, New York 10001\n(b) To the Company, at:\ndELiA*s Corp.\n151 West 26th Street\nNew York, New York 10001\nAttention: General Counsel\n4\nWith copies to:\nAlloy, Inc.\n151 West 26th Street\nNew York, New York 10001\nAttention: General Counsel\nand\nKatten Muchin Zavis Rosenman\n1025 Thomas Jefferson Street, NW\nSuite 700 East Lobby\nWashington, DC 20007\nAttention: Richard M. Graf\nSuccessors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and any of their successors and\nassigns. In addition, the Company and/or Parent may assign their rights and obligations hereunder to any of its or their affiliates or to the purchaser\nof or successor to (i) all or a significant portion of the Company’s business or assets, or (ii) that aspect of the Company’s business in which\n[\n] is principally involved in, in each case whether by way of merger, stock sale, asset sale or otherwise, provided that no such assignment\nshall relieve or excuse the Company from its obligation to pay [\n] under this Agreement. Except as set forth in the prior sentence, this\nAgreement may not be assignable by any party hereto without the prior written consent of the other parties.\nCaptions. The captions in this Agreement are for convenience only and shall not be construed to affect the meaning of any provisions herein.\nKnowing and Voluntary Execution. [\n] acknowledges that he has read and fully understands the terms of this Agreement, that he\nobtained legal advice in connection with this Agreement, and that he is signing it knowingly and voluntarily.\nIN WITNESS WHEREOF, the parties hereto have caused this Non-Competition and Confidentiality Agreement to be executed and delivered on\nthe date first above written.\n[\n]\nAgreed to and Accepted:\nALLOY, INC.\nPrint Name:\nTitle:\n5\nDELIA*S CORP.\nPrint Name:\nTitle:\nDate:\n6\nExhibit A\nPursuant to the Confidentiality and Non-Competition Agreement by and between Stephen I. Kahn and the Surviving Corporation, Mr. Kahn will\nreceive a payment from the Surviving Corporation in the sum of $450,000, payable $100,000 in the first year and the balance to be paid in equal\ninstallments payable over five years.\nPursuant to the Confidentiality and Non-Competition Agreement by and between Evan Guillemin and the Surviving Corporation, Mr. Guillemin\nwill receive a payment from the Surviving Corporation in the sum of $100,000, payable $50,000 on or before January 31, 2005 and $50,000 on or\nbefore January 31, 2006.\nPursuant to the Confidentiality and Non-Competition Agreement by and between Christopher C. Edgar and the Surviving Corporation,\nMr. Edgar will receive a payment from the Surviving Corporation in a lump sum amount of $50,000.
+f69dbb2418d314736be4814649ae7584.pdf	effective_date jurisdiction party term	Exhibit 10.38\nPROPRIETARY INFORMATION LICENSING AGREEMENT\nBETWEEN\nUSA DECK, INC .\nAND\nUNIVERSAL FOREST PRODUCT, INC .\nSECTION CONTENTS\nPAGE\n(1)\nDefinitions\n3\n(2)\nThe Grant\n4\n(3)\nTransfer\n5\n(4)\nManufacturing Assistance\n5\n(5)\nProtection of Industrial Property\n6\n(6)\nProtection and Ownership of Intellectual Property\n6\n(7)\nQuality Control, Trademark Use and Goodwill\n7\n(8)\nLicense Fees\n7\n(9)\nRoyalty Fees\n7\n(10)\nAccounting for Fees and Payment\n9\n(11)\nOpt-Out Option and Alternative Rights of Use\n9\n(12)\nFirst Refusal\n9\n(13)\nIndemnification and Release\n10\n(14)\nImprovements\n10\n(15)\nUnited States Government Regulations\n10\n(16)\nDuration\n11\n(17)\nDefaults and Waivers\n11\n(18)\nInsolvency or Change in Control\n11\n(19)\nRelationships\n12\n(20)\nForce Majeure\n12\n(21)\nEffect of Termination\n12\n(22)\nNonassignability\n12\n(23)\nNotices and Payments\n13\n(24)\nRestrictive Covenants\n13\n(25)\nDispute Resolution\n13\n(26)\nUnenforceable Terms\n15\n(27)\nGoverning Law and Construction\n15\n(28)\nOther Agreements; Amendments, Miscellaneous\n15\n(29)\nEffective Date\n16\nExhibit A\n17\nPage2of17\nPROPRIETARY INFORMATION LICENSING AGREEMENT\nBETWEEN\nUSA DECK, INC .\nAND\nUNIVERSAL FOREST PRODUCT, INC .\nThis Proprietary Information Licensing Agreement (“Agreement”) is entered into as of the 31st day of March, 2003, by and between USA Deck, Inc., (“USA”), a corporation organized and existing under the laws of Delaware, with\nheadquarters located at 1041 Cannons Court Woodbridge, Virginia 22191-1434 and Universal Forest Product, Inc., (“Universal”) a corporation, organized and existing under the laws of Michigan with headquarters located at 2801 E.\nBeltline N.E. Grand Rapids, Michigan 49525.\nWITNESSETH\nWHEREAS, USA is engaged in the marketing, modular fabrication, modular manufacture, sale design and installation (hereinafter these proprietary processes and activities are singularly and jointly referred to as the “Deck Process”) of\nprefabricated modular decks and decking products for the commercial and residential home remodeling industry; and\nWHEREAS, USA has developed a substantial body of Intellectual Property necessary and useful in the Deck Process and which constitutes a valuable asset of USA;\nWHEREAS, USA enjoys a special and high reputation in this field of industry with respect to its name and also with respect to trademarks identifying and distinguishing its products and the Deck Process; and\nWHEREAS, USA owns or has the right to grant licenses with respect to its Intellectual Property relating to the Deck Process; and\nWHEREAS, Universal desires to obtain from USA a limited right to utilize the Deck Process using USA’s Intellectual Property;\nNOW, THEREFORE, in consideration of their mutual promises and undertakings hereinafter set forth, the parties intending to be legally bound hereby, do covenant and agree that the above recitations shall be part of this agreement, and\nhereby further agree as follows:\nSection 1. Definitions\nFor the purpose of this Agreement:\n(1)\n“Annual Year” means a period which continues for twelve consecutive months. The first Annual Year of this Agreement begins on the Effective Date and ends twelve consecutive months thereafter, at which time, and as\napplicable, the next Annual Year begins.\n(2)\n“Effective Date” means the date on which this Agreement is executed by the parties hereto. If execution takes place on different dates, the later date shall be the Effective Date.\n(3)\n“Expiration Date” is the date eighty-four months from the Effective Date.\n(4)\n“Home Depot Store” means any “Home Depot” retail location within a Market Zone.\n(5)\n“Home Depot” means The Home Depot U.S.A ., Inc.\nPage3of17\n(6)\n“Intellectual Property” means the Deck Process and all related information which is not general common knowledge and shall include, but shall not be limited to, installation methods, manufacturing methods, manufacturing set-up\nand guidance, deck design principles, familiarization with ancillary and accessory items, timber specifications, site surveys, costing methods, sales methods, advertising and lead generation methods, designs, drawings, CAD\nblueprint libraries, specifications, test data, charts, graphs, operation sheets, bills of materials and other technical information, quality studies, prices, catalogues, advertising, production data, specialized know-how, skill, and other\napplication information, relating to the marketing, manufacture, use, and sale of Product which is owned or controlled by USA, as now existing or as hereafter developed or modified by either USA or Universal.\n(7)\n“Market Zone(s)” means those geographical areas designated and granted to Universal in the Universal SF&I by Home Depot, as such geographical areas may change from time to time by Home Depot and / or by amendment to\nthe Universal SF&I. Notwithstanding the foregoing, Market Zones shall not include the USA Zones.\n(8)\n“Product” means prefabricated modular decks and decking accessories, including prefabricated modular deck railings and prefabricated modular deck stairs.\n(9)\n“Term of this Agreement” means the period between the Effective Date hereof and the Expiration Date.\n(10) “Universal SF&I” means Universal’s SF&I Program Installer Agreement with Home Depot in existence as of the Effective Date, as such may be amended from time to time.\n(11) “USA Zones” means the states of Virginia, Maryland, Eastern Pennsylvania, Delaware, the lower metropolitan New York City region including Staten Island, and the District of Columbia. This term also includes the “Mid\nAtlantic” territory as defined by Home Depot and the territories represented by Home Depot’s defined market zones 43, 176, 10, 20, 15, 34, 39, 65, 66, 68, 86, 93, 111, 112, 116, 177, 191, 202, 260, and 272 (“USA Sub-Zones”).\nNotwithstanding the forgoing, the USA Sub-Zones shall not include any market zone in which USA is not directly engaging in business.\n(12) “Trademarks” means the following trademark(s):\nCountry of Registration\nRegistration Number\nMark\nUnited States\n1,489 ,348\nDesigner Decks\nUnited States\n1,519 ,195\nDesigner Decks\nUnited States\n1,490 ,192\nDesigner Decks (Stylized “D ”)\nUnited States\n1,410 ,546\nDesigner Decks (Design)\nUnited States\n2,005 ,787\nInvisanail\n(13) “Licensed Patents” means the following patent(s):\nCountry of Patent Rights\nPatent Number\nTitle\nUnited States\n4,622 ,792\nModular Deck Structure And Method For Constructing Same\nUnited States\n5,664 ,381\nConstruction Nailing Method And Structures\nSection 2. The Grant\n(1)\nFor the duration of this Agreement and upon the conditions hereinafter more specifically set forth, USA hereby grants to Universal the exclusive right to utilize the Deck Process in conjunction with the Intellectual Property for the\nsale, furnishing and installation of Product in the Market Zones.\nPage4of7\n(2)\nFor the duration of this Agreement USA hereby grants to Universal the exclusive right to use the Trademarks in the Market Zones on the Product manufactured and sold by Universal under the license granted in Paragraph (1) of\nthis Section (2) on such Product, subject to the terms and conditions hereinafter set forth.\n(3)\nFor the duration of this Agreement USA hereby grants to Universal the exclusive right in the Market Zones to utilize the Deck Process to fabricate and manufacture the Product under the Licensed Patents in the Market Zones\nunder the license granted in Paragraph (1) of this Section (2) on such Product, subject to the terms and conditions hereinafter set forth.\n(4)\nExcept as otherwise set forth herein, Universal shall have no right (i) to permit or subcontract others to use the Deck Process or the Intellectual Property for Universal; (ii) to disclose to or permit or sublicense others to use the\nDeck Process or the Intellectual Property; (iii) to use the Intellectual Property or the Deck Process in connection with the manufacture, use or sale of equipment or goods manufactured by Universal other than Product, except for\nincidental use; or (iv) to use the Intellectual Property or the Deck Process outside of the Market Zones.\n(5)\nUSA represents that it has the complete and unrestricted right to grant to Universal the rights in the Intellectual Property as set forth in this Agreement, and that the modular decking system specifications and design methods which\nare part of the Intellectual Property are suitable for the construction of residential decks, subject to proper site design, fabrication, installation and other job-specific related variables. USA further represents it has the authority and\nability to grant to Universal the utilizations to the Trademarks and Licensed Patents as set forth herein.\nSection 3. Transfer\nUSA will furnish to Universal, with the least possible delay following the Effective Date, all Intellectual Property which USA may have on hand in documentary form on the Effective Date relating to Product. Nothing contained herein\nshall be construed as requiring USA to perform any act in conflict with the laws of the United States of America pertaining to the export of technical information or data.\nSection 4. Manufacturing Assistance\n(1)\nDuring the term of this Agreement, at the written request of Universal, USA will send competent representatives to visit Universal’s manufacturing plant or plants for the purpose of assisting and advising Universal in connection\nwith the Deck Process. The identity and number of such representatives and the date and duration of each such visit shall be such as USA and Universal may mutually agree to be necessary. USA shall not be required to provide\nmore than twenty days of personnel support per Annual Year. Universal shall pay a daily assistance fee of $600.00 per person for such advisory services, plus all reasonable traveling, living and other costs and expenses of such\nrepresentatives.\n(2)\nUniversal shall have the right, at its own cost and expense and without any cost or expense to USA, to send competent representatives to USA to study at reasonable times and in a reasonable manner, the manufacturing methods\nand processes employed by USA in its commercial manufacture of Product. The identity and number of such representatives and the date and duration of each such visit shall be such as USA and Universal may mutually agree to\nbe necessary. During such visits, USA shall permit Universal’s representatives to exercise, and shall assist them in exercising, the rights granted to Universal pursuant to this Section 4 and shall permit them to have, and shall assist\nthem in having, such discussions and practical observations as may be necessary with competent representatives of USA relating to the manufacturing methods and processes employed by USA with respect to Deck Process.\nUniversal shall indemnify USA from any liability which might be asserted or claimed against USA arising out of said visits by Universal’s representatives, including personal injury to or property damage of such representatives.\nPage5of17\nSection 5. Protection of Industrial Property\n(1)\nUniversal expressly acknowledges and agrees that, except in the Market Zones and to the extent of the grant set forth in Section 2, Paragraph (1), it does not acquire under this Agreement any rights in or to the use of the\nTrademarks or Licensed Patents or the Intellectual Property or the Deck Process used or adopted in connection with Product or otherwise by USA anywhere in the world.\n(2)\nUniversal further undertakes that it may not at any time contest anywhere in the world ownership of any of the Trademarks, Licensed Patents, Intellectual Property or Deck Process rights of USA.\n(3)\nUpon termination of this Agreement, Universal shall promptly deliver free of charge to USA all materials, including signs, advertising and catalogs containing the trademarks and tradenames of USA, which are in the possession of\nUniversal or its employees and Universal shall desist from making further use of these materials.\nSection 6. Protection and Ownership of Intellectual Property\n(1)\nAll Intellectual Property furnished to Universal hereunder remains the property of USA.\n(2)\nUniversal agrees to keep all Intellectual Property confidential. Universal may not, without written consent from USA, communicate or allow to be communicated any Intellectual Property to anyone except to its wholly owned\nsubsidiaries, officers, employees, agents or subcontractors and only to such extent as may be necessary for the proper manufacture and sale of the Product in accordance with this Agreement. Universal agrees to take all necessary\nprecautions in a manner acceptable to USA to keep said Intellectual Property and the Deck Process secret and to restrict its use as aforesaid.\n(3)\nUniversal agrees that any reproduction, notes, summaries or similar documents relating to the Intellectual Property supplied hereunder immediately upon their creation become and remain the property of USA. Universal shall be\nresponsible for ensuring from persons to whom authorized disclosure of Intellectual Property is made that such persons shall treat all Intellectual Property supplied hereunder as confidential and to restrict its use in the manner\nprovided in this section.\n(4)\nAll copies of any information delivered to Universal relating to USA pursuant hereto shall, upon the written request of USA, be promptly returned to USA in the event that this Agreement is terminated. Universal agrees that\nUSA’s confidential information shall not be used or disclosed, unless such disclosure is required by law, by Universal for any purpose other than as contemplated by this Agreement. For purposes of this Section, “confidential”\ninformation does not include information which: (a) is or becomes generally available to the public other than as a result of disclosure which is in violation of this Section; (b) was known by Universal on a non-confidential basis\nprior to the disclosure thereof; or (c) becomes available to Universal on a non-confidential basis from a third party who is not known by Universal to be bound by a confidentiality agreement with USA, or is not otherwise\nprohibited from transmitting the information to Universal.\n(5)\nAll copies of any information delivered to USA relating to Universal pursuant hereto shall, upon the written request of Universal, be promptly returned to Universal in the event that this Agreement is terminated. USA agrees that\nUniversal’s confidential information shall not be used or disclosed, unless such disclosure is required by law, by USA for any purpose other than as contemplated by this Agreement. For purposes of this Section, “confidential”\ninformation does not include information which: (a) is or becomes generally available to the public other than as a result of disclosure which is in violation of this Section; (b) was known by USA on a non-confidential basis prior\nto the disclosure thereof; or (c) becomes available to USA on a non-confidential basis from a third party who is not known by USA to be bound by a confidentiality agreement with Universal, or is not otherwise prohibited from\ntransmitting the information to USA.\nPage6of17\n(6)\nIt is understood by and between the parties hereto that the foregoing covenants are essential elements to the relationship between the parties, The parties agree that an award of damages alone for breach of this provision would be\ninadequate protection for the other party, as the injury would be irreparable, and therefore that equitable or injunctive relief is appropriate as well.\nSection 7. Quality Control, Trademark Use and Goodwill\n(1)\nUniversal shall report promptly to USA any changes in the design, specifications, material or similar characteristics of the Product, or any of them.\n(2)\nUniversal shall maintain the highest standards of quality and workmanship in its manufacture of Product.\n(3)\nUniversal shall permit the duly authorized representatives of USA to inspect during normal working hours the plant of Universal, the process of manufacture of the Product, and any Product manufactured by Universal and cause to\nbe inspected by them the plant of any contract manufacturer producing the Product or any part thereof.\n(4)\nSo long as Universal is licensed under Section 2 hereof, Universal agrees that a plate shall be affixed to each such Product on an outward facing post or rail or otherwise in a place to be designated by USA, and which shall\nconspicuously and permanently display the mark “Designer Decks®” followed by the patent numbers of the Licensed Patents.\n(5)\nUniversal hereby acknowledges that the Trademarks are lawful trademarks and that they are the sole and exclusive property of USA. Universal agrees that it will not at any time during the term of this Agreement, or thereafter,\nbecome a party, directly or indirectly, in any country, to the contesting of, or the impairing of, the validity, goodwill or value of the Trademarks or any applications or registrations governing the Trademarks, or of USA’s title to\nthe Trademarks. Universal agrees that it will provide written notice to USA if it learns of any third-party contesting of the validity, goodwill or value of the Trademarks or any applications or registrations governing the\nTrademarks, or of USA’s title to the Trademarks. Universal acknowledges that it shall have only those rights to use the Trademarks which are provided for under the terms of this Agreement. Universal will not directly or\nindirectly obtain or attempt to obtain in any country during the continuance of this Agreement or at any time thereafter, any right, title or interest, by registration, copyright or otherwise in or to any trademarks, trade names,\ninsignia or designation, or combination thereof, used or owned by USA in any part of the world, except with the written consent of USA.\n(6)\nImmediately upon termination of this Agreement or of Universal’s license under Section 2 hereof for any reason, Universal will discontinue use and/or display in any manner whatsoever of the Trademarks and will not\nsubsequently adopt and/or use any trademark, service mark, trade name or the like, which would be likely to cause confusion with the Trademarks.\nSection 8. License Fees\nUniversal shall pay to USA a license fee of One Hundred Fifty Thousand Dollars ($150,000.00) upon the Effective Date.\nSection 9. Royalty Fees\nUniversal shall pay to USA a royalty fee of Fifty Dollars ($50.00) (the “Threshold Royalty Fee”) for each and every deck sold by Universal, regardless of installation of said deck, under the Universal SF&I, so long as the deck is partially\nor completely elevated above ground, but regardless of whether the deck is a pre-fabricated modular deck or not. Universal further guaranties as follows:\n(1)\nFor the second Annual Year, in those Market Zones determined by the parties to have a 12-month selling season (the “12 -Month Market Zones”), the Threshold Royalty Fee shall be no less than an amount equal to 12.5 decks per\nHome Depot Store, per 12-Month Market Zone. Exhibit A, attached hereto and made a part hereof, sets forth the agreed upon 12-Month Market Zones.\nPage7of17\n(2)\nFor the second Annual Year, in those Market Zones determined by the parties to have a 9-month selling season (the “9-Month Market Zones”), the Threshold Royalty Fee shall be no less than an amount equal to 8.25 decks per\nHome Depot Store, per 9-Month Market Zone. Exhibit A sets forth the agreed upon 9-Month Market Zones.\n(3)\nFor the third Annual Year and each Annual Year thereafter, in the 12-Month Market Zones, the Threshold Royalty Fee shall be no less than an amount equal to 25 decks per Home Depot Store, per 12-Month Market Zone.\n(4)\nFor the third Annual Year and each Annual Year thereafter, in the 9-Month Market Zones, the Threshold Royalty Fee shall be no less than an amount equal to 17 decks per Home Depot Store, per 9-Month Market Zone.\n(5)\nThere shall be no guaranteed minimum royalty fees in any Market Zone determined by the parties to have less than a 9-month selling season (the “Short Market Zones”) nor in any Market Zone determined by the parties to not be\nconducive to the sale of prefabricated modular decking (the “No Sale Market Zones”). Any decks sold in either the Short Market Zones or the No Sale Market Zones shall nonetheless be subject to the Threshold Royalty Fees.\nExhibit A sets forth the agreed upon Short Market Zones and the No Sale Market Zones.\n(6)\nThe total of Threshold Royalty Fees paid during an Annual Year shall be credited against the total guaranteed minimum royalty fees required for that same Annual Year.\n(7)\nUniversal shall notify USA in writing within 30 days of the grant of any new Market Zone under the Universal SF&I, which new Market Zone shall automatically become subject to this Agreement. Universal’s notification to\nUSA shall also state the “classification” into which the new Market Zone shall be placed (the 12-Month Market Zones, 9-Month Market Zones, etc. . ) which classification USA shall have 15 days to object to in writing. If USA\ndoes not object to the proposed classification, Exhibit A to this Agreement shall be deemed to be amended by Universal’s notification as applicable to reflect the new Market Zone. If USA does object to the proposed classification\nby Universal, the parties agree to work in good faith to resolve the classification dispute within 10 business days of USA’s objection or submit the matter to the dispute resolution procedures set forth in Section 25.\n(8)\nFor any new Market Zone granted to Universal following the Effective Date, and which classification the parties agree to, the timing schedule for the guaranteed minimum royalty fees set forth in this Section will begin to run as of\nthe date of grant of the new Market Zone to Universal.\n(9)\nThe guaranteed minimum royalty fees described in this Section shall remain in full force and effect so long as Universal continues any utilization of the Intellectual Property.\n(10) All payments described in this Section are to be gross payments and shall be made without deduction, other than such tax or other amount that Universal is required to deduct or withhold by law, and in regard to any such\ndeduction Universal shall use all reasonable endeavors to assist USA to claim recovery or exemption under any double taxation or similar agreement, and evidence as to the payment of any such tax or sum withheld shall be\nprovided by Universal to USA.\nPage8of17\nSection 10. Accounting for Fees and Payment\n(1)\nThreshold Royalty Fees shall be calculated on a quarterly basis based on a calendar year, and each quarter’s royalty fees shall be paid within 30 days after the end of that quarter. Guaranteed minimum royalty fees, if applicable,\nshall be calculated and paid within 30 days after the close of each applicable Annual Year.\n(2)\nUniversal shall pay USA’s invoices for any representative services under Section 4 within thirty (30) days after the date of the invoice.\n(3)\nUniversal shall pay USA interest at the rate of 1.5 percent per month from the due date on any payment due hereunder not received by USA on the due date.\n(4)\nUnless otherwise directed by USA in writing, payments shall be made to USA by wire to a bank in the United States designated by USA in writing in United States dollars.\n(5)\nUniversal shall at all times during the continuance of this Agreement keep at its usual place of business complete sales records and make true and correct entries therein at the earliest opportunity for the purpose of showing the\nquantity and selling prices of each distinct Product sold by it directly or indirectly per Market Zone and Home Depot Store. USA shall have the right at any reasonable time, by its authorized representatives, to examine said sales\nrecords for the purpose of and to the extent necessary for verifying the accuracy of Universal’s performance under this Agreement.\nSection 11. Opt-Out Option and Alternative Rights of Use\n(1)\nNotwithstanding anything to the contrary contained herein, Universal may choose to permanently opt out of any Market Zone existing as at the Effective Date or granted following the Effective Date (“Opt Out Zones”). Exhibit A\nsets forth the agreed upon Opt Out Zones as of the Effective Date.\n(2)\nUniversal shall notify USA of any new Opt Out Zones within 30 days of Universal’s election, but in any event at least 15 days prior to its cessation of activity in Market Zone under this Agreement.\n(3)\nUniversal shall not have any rights to the Intellectual Property or the Deck Process, nor any Threshold Royalty Fee obligations, in any Market Zone which it has elected to opt out of.\n(4)\nShould Universal cease its relationship with Home Depot in any Market Zone, Universal shall then have 30 days to notify USA of its election to continue its use of the Intellectual Property and the Deck Process in that Market\nZone, on a non-exclusive basis, subject to the Threshold Royalty Fee obligation of this Agreement but the Threshold Royalty Fee shall be calculated on all decks thereafter sold by Universal in such Market Zone as opposed to\ndecks sold in Home Depot Stores in such Market Zone. Universal guarantees that the annual Threshold Royalty Fee in any such Market Zone, pro rated for the first year as applicable, shall be no less than an amount equal to 25\ndecks per Home Depot Store existing in that Market Zone.\nSection 12. First Refusal\nUniversal is hereby granted a right of first refusal to any new territory in which USA seeks to license its Intellectual Property for the Deck Process. This right shall expire twelve months from the Effective Date. USA shall notify Universal\nof any new territory USA seeks to license. The notice shall include a statement of the time within which Universal must act to exercise it’s right of first refusal. To exercise the right of first refusal, Universal shall within 15 days of USA’s\nnotification give notice to USA of Universal’s commitment to include such new territory under this Agreement. Any new territory so included shall be subject to Threshold Royalty Fees provided for in Section 9 as well as the guaranteed\nminimum royalty fees of Section 9. The timeline for such guaranteed minimum royalty fees will begin to run as of the date of Universal’s election to exercise this right of first refusal. This right of first refusal shall not apply to any Market\nZone which Universal has opted out of in accordance with Section 11.\nPage9of17\nSection 13. Indemnification and Release\n(1)\nUniversal shall indemnify USA and hold it harmless against and from any liability, claims, damages, and / or expenses whatsoever in any way arising directly or indirectly out of Universal’s manufacture, distribution, marketing,\nservice, testing, sale, installation or use of the Product or the Deck Process and Universal hereby further releases USA from any such liability, claims, damages or expenses.\n(2)\nNothing contained in this Agreement shall be construed as:\n(a) Requiring the filing by USA of any trademark or patent application, the securing or maintaining of any trademark or patent in force after the Effective Date. Notwithstanding the forgoing, USA shall take such steps as it deems\nreasonable to protect its Trademarks and Licensed Patents;\n(b) A warranty or representation by USA as to the validity or scope of any patent;\n(c) A warranty or representation by USA that any manufacture, sale, or use hereunder will be free from infringement of patents or trademarks owned by others than USA, provided, however, USA shall cooperate with and render\nreasonable assistance to Universal in the defense of any patent or trademark infringement action on terms mutually acceptable to the parties;\n(d) Conferring by implication, estoppel or otherwise upon Universal any license or other right under any patent or trademark except rights expressly granted hereunder to Universal; or\n(e) Other than as specifically set forth in Section 2(5), a warranty by USA as to the accuracy, sufficiency or suitability for use of the Intellectual Property or Deck Process licensed and made available hereunder or for the quality or\nquantity of any Product or processes made by the use thereof, and USA assumes no responsibility or liability, including liability for consequential damages or loss of profit, which might arise out of the use by Universal of said\ninformation.\nSection 14. Improvements\n(1)\nAny inventions, improvements, modifications, patents or patent applications made or acquired by Universal applicable to the Product shall be immediately and fully disclosed by Universal to USA. USA shall have prior approval,\nwhich approval must be made in writing, to any changes in designs, techniques, procedures, Product and Product parts. Universal shall grant and hereby grants to USA a complete, worldwide, unrestricted, irrevocable right and\nlicense, together with the right to sublicense others, under all of said inventions, improvements, patents and patent applications for the full term of said patents. USA’s license shall be non-exclusive.\n(2)\nIn the event Universal does not wish to file patent applications on any of such inventions and improvements, it will so notify USA prior to any public divulging thereof and upon the request of USA, execute and procure the\nexecution of any and all patent applications and all papers necessary or desirable to enable USA to protect such inventions or improvements and whatever assignments or transfer instruments are necessary or required to effectuate\nownership of the rights in USA in any and all countries of the world which USA may elect. Any expense incurred in the prosecution of such patent applications by USA shall be borne by USA. It is agreed that Universal shall have\nthe right to use in the Market Zones such patent or patents non-exclusively and free of charge for the full term of said patent or patents.\nSection 15. United States Government Regulations\n(1)\nUniversal agrees that it will not, without the prior written consent of USA, sell, lease or make available any of the Product, or disclose or sublicense any of the Intellectual Property or Deck\nPage 10 of 17\nProcess to any person, or any government or agency of any country, if such sale, lease, shipment, disclosure or sublicense would be regarded by the United States Government as a breach of the Foreign Assets Control Regulations\nor the Transaction Control Regulations.\n(2)\nIt is further understood that Universal will obtain from any customer or subcontractor or supplier, if so requested by USA, a declaration that none of the Product or Intellectual Property or Deck Process will be sold, conveyed,\nleased or revealed to any person or movement agency against the provisions of the applicable United States laws and regulations and the grant conveyed herein.\nSection 16. Duration and Termination\n(1)\nThis Agreement shall terminate upon the Expiration Date unless otherwise agreed to by the parties or sooner terminated as herein provided.\n(2)\nThis Agreement will be deemed to have terminated in the event Universal opts out of each and every Market Zone in accordance with the terms of Section 11.\n(3)\nThis Agreement will be deemed to have terminated in the event Universal is substantially prevented from utilizing the Deck Process or the Intellectual Property due to infringement or similar claims against the USA Licensed\nPatents or Trademarks.\nSection 17. Defaults and Waivers\nIn the event either party shall be in default by failing to observe or fulfill any condition or representation of this Agreement (the “Defaulting Party”), the other party (the “Non Defaulting Party”) shall have the right to serve upon such\nDefaulting Party a written notice specifying such default, requesting the remedying thereof within thirty (30) days from the date of said notice. If such default is not satisfactorily remedied within said period, the Non Defaulting Party may\nserve the Defaulting Party with a written notice of immediate termination of this Agreement, upon which all rights and licenses, except those which are irrevocable or which may have accrued hereunder at the date of such notice, shall be\ncancelled, and each party will execute whatever documents may be necessary to return the rights or property of the other party which may have been acquired hereunder. The Non Defaulting Party may choose to submit the issue to the\ndispute resolution procedures of Section 25, rather than terminating this Agreement. No waiver of any of the terms and conditions of this Agreement shall be binding or effectual for any purpose unless expressed in writing and signed by\nthe party hereto giving the same, and any such waiver shall be effective only in the specific instance and for the purpose given. No failure or delay on the part of either party hereto in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.\nSection 18. Insolvency or Change in Control\n(1)\nIn the event that Universal shall be either deemed insolvent, make an assignment for the benefit of a creditor, or be legally obliged to cease to trade or to wind-up its affairs and go into liquidation, USA shall be entitled to give\nwritten notice terminating this Agreement forthwith without prejudice to the rights of either USA or Universal which may have accrued hereunder at the date of such termination.\n(2)\nUniversal shall, in the event that the effective control of Universal passes from the hands of the persons, firms or corporations in whose hands it is at the date of this Agreement, inform USA in writing forthwith of any such change\nin control. Should such change in control pass control into the hands of some party which USA in its reasonable judgment considers would not be commercially or otherwise favorably or impartially disposed towards the business\ninterest of USA (including the continued exploitation of sales of the Product under this Agreement), USA shall be entitled by notice\nPage 11 of 17\nin writing to terminate this Agreement forthwith without prejudice to rights already accrued hereunder.\nSection 19. Relationships\nIt is understood that in giving effect to this Agreement, Universal shall not be a partner, agent, franchisee or employee of USA for any purpose and that its relationship to USA shall be that of an independent contractor. Universal shall not\nhave the right to enter into contracts, nor incur expenses or liabilities, on behalf of USA.\nSection 20. Force Majeure\nNeither party shall be liable for failure to perform its part of this Agreement when the failure is due to causes beyond its reasonable control such as, but not limited to, fire, flood, strikes, labor troubles or other industrial disturbances,\ninevitable accidents, war (declared or undeclared), embargoes, blockades, legal restrictions, riots, insurrections or governmental regulations.\nSection 21. Effect of Termination\nUpon termination or expiration of this Agreement, Universal promises:\n(a) To cease all manufacture and sale of the Product;\n(b) To cease the use of all Intellectual Property, the Deck Process and the Licensed Patents;\n(c) To take all action necessary (i) to transfer to USA or (at USA’s option) to cancel any and all rights Universal may have to use the Intellectual Property, Deck Process and Licensed Patents and (ii) to provide USA with suitable evidence\nof such cancellations if USA exercises its option to demand them;\n(d) To return to USA all documents (including but not limited to any reproductions, notes or summaries), models and other materials relating to the Intellectual Property, Deck Process and Licensed Patents;\n(e) To not withhold any moneys accrued, due and payable by Universal to USA hereunder, on the ground of a dispute arising out of or in relation to this Agreement and as set-off against any claim for damages sought to be put forward by\nUniversal; and\nSection 22. Nonassignability\nThis Agreement and each and every covenant, term and condition herein is binding upon and inures to the benefit of the parties hereto and their respective successors, but neither this Agreement nor any rights hereunder may be assigned\nor sublicensed, directly or indirectly, voluntarily or by operation of law, by Universal without first receiving the prior written consent of USA. Notwithstanding the forgoing, Universal shall have the right, subject to the consent of USA,\nwhich consent shall not be unreasonably withheld, to sublicense its rights hereunder subject to terms and conditions customary for sublicensing agreements, all to be negotiated in good faith between the parties and set forth in an\nagreed-upon sublicensing agreement by and between Universal and its intended sublicensee, to which USA shall be a third-party beneficiary. Under no event shall any sublicense agreement release Universal from its obligations and\nresponsibilities set forth in this Agreement. USA shall in no event be required to consent to any sublicense agreement where, in the opinion of USA’s counsel, such agreement could be deemed to create a franchise relationship for USA.\nPage 12 of 17\nSection 23. Notices and Payments\nUntil further notice, to be legally effective any payment or notice which the parties are required or permitted to give to each other pursuant to any of the provisions of this Agreement shall be sent by certified and registered airmail or by\novernight or second day delivery via an internationally recognized carrier such as Federal Express or UPS to the other party at the following address set after its name:\nUSA Deck, Inc.\nUniversal Forest Product, Inc.\n1041 Cannons Court\n2801 E. Beltline N.E .\nWoodbridge, Virginia 22191-1434\nGrand Rapids, Michigan 49525\nAttn: Daniel L. Betts, President\nAttn: Kent Bathurst, V.P.\nThe effective date of any such notice shall be two days following date of mailing.\nSection 24. Restrictive Covenants\nUpon the Effective Date and for a period of two (2) years following the termination of this Agreement for any reason, Universal (for itself and any affiliate or subsidiary) shall not directly or indirectly: invest in, own, render consulting\nservices to, or operate any entity that engages in the manufacture, sale or installation of Product. Notwithstanding the foregoing, this non-competition restriction shall run for a period of five (5) years in the USA Zones and any other state\nor geographical area in which USA is operating in directly or through a licensee (other than through Universal) as of the date of termination of this Agreement for any reason. Furthermore, upon the Effective Date and for a period of five\n(5) years following the termination of this Agreement for any reason, Universal (for itself and any affiliate or subsidiary) shall not, and shall cause its affiliates, successors and assigns not to, hire or directly solicit for hire any person then\nan employee of USA. It is agreed that the period of time during which Universal is prohibited from engaging in such practices pursuant to this section shall be extended by any length of time during which Universal is in breach of this\nsection. Notwithstanding the foregoing, this Noncompetition clause shall not prohibit any party from owning a one percent (1%) or less interest in any company whose shares are traded on any public securities exchange.\nIt is understood by and between the parties hereto that the foregoing covenants are essential elements to the relationship between the parties. The parties agree that an award of damages alone for breach of this provision would be\ninadequate protection for USA, as the injury would be irreparable, and therefore that equitable or injunctive relief is appropriate as well. In addition, the parties agree that USA shall be entitled to collect its reasonable attorney’s fees if it\nshould prevail in an action for breach of the covenants of this section.\nSection 25. Dispute Resolution\nThe parties agree that any controversy other than a claim for injunctive relief (“Dispute”) arising out of this Agreement shall be resolved in accordance with the following procedures. A Dispute may include, without limitation, any claim\nwith respect to either party’s obligations or its performance, failure to perform, adequacy of performance or good faith exercise of its rights under the Agreement. The parties shall endeavor in good faith to promptly, reasonably, and\nequitably settle all Disputes on an informal basis in the normal course of business. All Disputes which the parties cannot so settle in the normal course of business shall be negotiated and mediated in accordance with this Section.\nEither party (the “initiating party”) may commence a negotiation of a Dispute (“Negotiation”) by serving on the other party (the “responding party”) a written statement of the nature and substance of\nPage 13 of 17\nthe Dispute, a brief summary of its position with respect to the Dispute, its justifications therefor, and its proposal for resolution of the Dispute. Within ten (10) days, the responding party shall prepare and serve on the initiating party a\nwritten statement of its position in response. These position papers may be served in accordance with the notice provisions of this Agreement to the authorized representatives of the parties (“Executives”).\nWithin fourteen (14) days of exchanging position papers, the parties shall conduct a face-to-face or telephonic meeting of the Executives and appropriate members of their respective management teams with knowledge of the matters\nunderlying the Dispute and full authority to resolve the Dispute. If the Executives cannot agree to a resolution of the Dispute within five (5) days thereafter, they may continue discussions or either party may invoke the mediation\nprocedures set forth hereafter by giving notice to the other party.\nEither party may invoke non-binding mediation (“Mediation”) upon conclusion of the Negotiation procedures described above by serving a notice of mediation on the other party and proposing a mediator. The other party shall respond\nwithin five (5) business days advising as to whether the proposed mediator is acceptable and, if not, proposing an alternative mediator. If the parties cannot agree within an additional two (2) business days to an acceptable mediator, then\non the second business day after delivery of the other party’s response, each party shall concurrently deliver to the other by an overnight delivery service of general commercial use and acceptance (such as Airborne, UPS, or Federal\nExpress) a list of five proposed mediators in order of preference. The Person ranking highest on the two lists (measured by a total point system of 5 points for the first choice on each list, 4 points for the second choice on each list, etc.)\nshall be designated the mediator unless such Person refuses the designation, in which event the next highest ranking Person shall be designated the mediator. If no Person appears on both lists, or no Person who appears on both lists\naccepts the designation, and the parties cannot within five (5) additional days agree to a mediator, the parties shall each then designate a Person (“designee”) who shall together decide on and confirm appointment of the mediator. If the\ndesignees are unable to agree, the designees shall apply to the Center for Public Resources to appoint a mediator in accordance with its Model Procedure for Mediation of Business Disputes as then in effect. The Person so appointed (the\n“Mediator”) shall be compensated at an hourly rate (or an alternative compensation arrangement) to be agreed upon between the parties and the Mediator prior to appointment. The parties shall each pay one half the Mediator’s fee and\nexpenses.\nEach party shall prepare a written statement of the Dispute and its position, a summary of the prior negotiations, and a final proposal of settlement. Within fifteen (15) days of appointment of the Mediator, the parties shall submit such\nstatement to the Mediator, together with such supporting or evidentiary materials or other matter as the parties deem appropriate to the Dispute. Concurrently, the parties shall deliver a copy of all submitted materials to the other party.\nAny further submissions shall be made only with the prior consent of the Mediator and all submissions shall be copies to the other party. No “discovery” or other proceeding shall be conducted except as directed by the Mediator. The\nMediator may, at his option, hold hearings or conduct interviews, discussions, or negotiation sessions with any Person or entity, which he believes to be relevant to the Dispute. The Mediator may in his discretion conduct such interviews\nor discussions unilaterally or with the parties present. The Mediation shall be generally conducted in accordance with the Model Procedures for Mediation of Business Disputes as then in effect, or pursuant to such other procedures as the\nparties may agree. The parties shall endeavor to assist the Mediator in concluding the Mediation within a reasonable time, with a target of not later than thirty (30) days after initial submission of materials to the Mediator.\nAt any time, after the parties have engaged in reasonable mediation activity, the Mediator may declare the Mediation to be terminated, and either party may elect to terminate the Mediation at any time by giving notice to the other party\nand the Mediator, if the Dispute is not resolved within ninety (90) days after the appointment of the Mediator. If, upon termination of the Mediation, the Dispute remains\nPage 14 of 17\nunresolved, both parties shall reserve all rights to seek a judicial resolution of the Dispute in accordance with applicable law, except as otherwise restricted by this Agreement, and to receive their costs and reasonable attorneys fees in a\nprevailing action. The resolution of any Dispute shall not constitute an amendment to the Agreement or a waiver or modification of either party’s rights.\nSection 26. Unenforceable Terms\nIn the event any term or provision of this Agreement shall for any reason be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other term or provisions hereof. In such an\nevent, this Agreement shall be interpreted and construed as if such term or provision, to the extent the same shall have been held invalid, illegal or unenforceable, had never been contained herein.\nSection 27. Governing Law and Construction\nThis Agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Virginia and the United States of America. Venue for any dispute arising hereunder shall be Prince Williams County, Virginia. The\nEnglish language shall control any interpretation of terms. This Agreement shall be construed without regard to any presumption or any other rule requiring construction against the party who caused it to have been drafted. The headings\nof sections and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof. When the context requires, the gender of all words used\nherein shall include the masculine, feminine and neuter and the number of all words shall include the singular and plural. Use of the words “herein”, “hereof”, “hereto” and the like in this Agreement shall be construed as references to this\nAgreement as a whole and not to any particular Article, Section or provision of this Agreement, unless otherwise noted.\nSection 28. Other Agreements; Amendments, Miscellaneous\n(1)\nThis Agreement represents the full and complete understanding and agreement of the parties and supersedes and cancels any prior agreements between the parties or their predecessors relating to Product, the Intellectual Property,\nthe Deck Process or otherwise, other than in regard to previously executed agreements of confidentiality or similar restrictive covenants, which shall be interpreted in conduction with this Agreement to increase but in no event to\nlimit the protections of this Agreement, in order to provide the strongest protection to the party seeking safekeeping of its proprietary and confidential information. This Agreement may be amended or nullified only by a writing\nexecuted by officers of both parties.\n(2)\nExcept as may otherwise be required by law or regulation or by court or administrative agency order, the parties hereto agree that no press release or similar public announcements shall be made with respect to the proposed\ntransactions unless the parties hereto have consented in writing to such disclosure, which consent shall not be unreasonably withheld.\n(3)\nUpon termination or expiration of this Agreement, the terms and conditions of this Agreement which by their reasonable construction are intended to survive termination or expiration of this Agreement shall, in such event, remain\nin effect, including but not limited to those pertaining to Universal’s covenants, representations and warranties to USA.\n(4)\nThis Agreement may be executed in multiple counterparts, each of which shall be deemed an original but all of which together shall constitute a single instrument. Execution and delivery of this Agreement by exchange of\nfacsimile copies bearing facsimile signature of a party shall constitute a valid and binding execution and delivery of this agreement by such party.\nPage 15 of 17\n(5)\nThe parties did not engage the services of any broker for the procurement of this transaction. Each party hereto shall bear its own costs and expenses (including accounting costs and attorneys’ fees), except that each party hereto\nagrees to pay the costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the other parties in successfully (a) enforcing any of the terms of this Agreement or (b) proving that another party breached any\nof the terms of this Agreement or related documents.\n(6)\nExcept as may otherwise be required by law or regulation or by court or administrative agency order, the parties hereto agree that no press release or similar public statements shall be made with respect to the proposed transactions\nunless the other party has consented to such disclosure, which consent shall not be unreasonably withheld.\nSection 29. Effective Date\nThe Effective Date shall be on or before March 31, 2003, or such other date as mutually agreed to by the parties.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in their corporate names by their duly authorized representatives.\nUSA DECK, INC .\nUNIVERSAL FOREST PRODUCTS, INC.\nBY:\n/s/ Daniel L. Betts\nBY: /s/ Matthew J. Missad\nDaniel L. Betts, President\nNAME:\nMatthew J. Missad\nTITLE:Exec, VP\n7DATE:\n3/31/03\nDATE:3/31/03\nPage 16 of 17\nEXHlBIT A\n12-Month Market Zones\n9-Month Market Zones\nShort Market Zones\nNo Sale Market Zones\nOpt Out Zones\nPage 17 of 17	PROPRIETARY INFORMATION LICENSING AGREEMENT\nBETWEEN\nUSA DECK, INC.\nAND\nUNIVERSAL FOREST PRODUCT, INC.\nExhibit 10.38\nFAG E\nSECTION CONTENTS\n(1) Definitions '3'\n(2) The Grant 4\n(3) Transfer 5\n(4) Manufacturing A ssistance 5\n(5) Protection of Industrial Property 6\n(6) Protection and Ownership of Intellectual Property 6\n(7) Quality Contiol, Trademark Use and Goodwill 7\n(8) License Fees 7\n(9) Royalty Fees 7\n(10) Accounting for Fees and Payment 9\n(11) Opt-Out Option and Alternative Rights of Use 9\n(12) First Refusal 9\n(13) Indemnification and Release 0\n(14) Improvements 0\n(15) United Smtes Government Regulations 0\n(16) Duration 1\n(17) Defaults and Waivers 1\n(18) Insolvency or Change in Control 1\n(19) Relationships 2\n(20) Force Majeuie 2\n(21) Effect of Termination 2\n(22) Nonassignability 2\n(23) Notices and Payments 3\n(24) Restrictive C ovenants 3\n(25) Dispute Resolution 3\n(26) Unenforceable Terms 5\n(27) Governing Law and Construction 5\n(28) OtherA greements; Amendments, Miscellaneous 5\n(29) Effective Date 6\nExhibit A 7\n \nPage 2 of 17\n—\nPROPRIETARY INFORMATION LICENSING AGREEMENT\nBETWEEN\nUSA DEC K, INC .\nAND\nUNIVERSAL FOREST PRODUCT INC.\nThis Proprietary Information Licensing Agreement (”A greement”) is entered into as of the 31st day of March, 2003, by and between USA Deck, Inc, ("USA"), a corporation organized and existing under the laws of Delaware, with\nheadquarters located at 1041 Cannons Court Woodbridge, Virginia 22191- 1434 and Universal Forest Product, Incl, (”Universal”) a corporation, organized and existing under the laws of Michigan with headquarters located at 2801 El\nBeltline NE Grand Rapids, Michigan 49525,\nWITNESSETH\nW IEREA S, USA is engaged in the marketing, modular fabrication, modular manufacture, sale design and installation (hereinafter these proprietary processes and activities are singulariy and jointly referred to as the ”Deck Process”) of\nprefabricated modular decks and decking products for the commercial and residential home remodeling industry; and\nW IEREA S, USA has developed a subsmntial body of Intellectual Property necessary and useful in the Deck Process and which constitutes a valuable asset of USA;\nW IEREA S, USA enjoys a special and high repumtion in this field of industry with respect to its name and also with respect to trademarks identifying and distinguishing its products and the Deck Process; and\nW IEREA S, USA owns or has the right to grant licenses with respect to its Intellectual Property relating to the Deck Process; and\n \nW IEREA S, Universal desires to obtain from USA a limited right to utilize the Deck Process using USA’s Intellectual Property;\nNOW, THEREFORE, in consideration of their mutual promises and undertakings hereinafter set forth, the parties intending to be legally bound hereby, do covenant and agree that the above recitations shall be part of this agreement, and\nhereby further agree as follows:\nSection 1, Definitions\nFor the purpose of this Agreement\n(1) “Annual Y ear" means a period which continues for twelve consecutive months. The firstAnnual Y ear of this Agreement begins on the Effective Date and ends twelve consecutive months thereafter, at which time, and as\napplicable, the next A nnual Y ear begins\n(2) “Effective Date" means the date on which this Agreement is executed by the parties hereto If execution takes place on different dates, the later date shall be the Effective Date,\n(3) “Expiration Date" is the date eighty-four months from the Effective Date.\n(4) “Home Depot Store” means any “Home Depot" retail location within a Market Zone,\n(5) “Home Depot" means The Home Depot USA, Inc‘\nPage 3 of 17\n(6)\n(7)\n(8)\n(9)\n”Intellectual Property" means the Deck Process and all related information which is not general common knowledge and shall include, but shall not be limited to, installation methods, manufacturing methods, manufacturing set-up\nand guidance, deck design principles, familiarization with ancillary and accessory items, timber specifications, site surveys, costing methods, sales methods, advertising and lead generation methods, designs, drawings, CAD\nblueprint libraries, specifications, test data, charts, graphs, operation sheets, bills of materials and other technical information, quality studies, prices, catalogues, advertising, production data, specialized know-how, skill, and other\napplication information, relating to the marketing, manufacture, use, and sale of Product which is owned or controlled by USA, as now existing or as hereafter developed or modified by either USA or Universal.\n“Market Zone(s)” means those geographical areas designated and granted to Universal in the Universal SF&I by Home Depot, as such geographical areas may change from time to time by Home Depot and l or by amendment to\nthe Universal SF&I. Notwithstanding the foregoing, Market Zones shall not include the USA Zones.\n“Product” means prefabricated modular decks and decking accessories, including prefabricated modular deck railings and prefabricated modular deck stairs.\n”Term of this Agreement” means the period between the Effective Date hereof and the Expiration Date.\n(10) ”Universal SF&I” means Universal’s SF&I Program InstallerAgreement with Home Depot in existence as of the Effective Date, as such may be amended from time to time.\n(11) “USA Zones” means the smtes of Virginia, Maryland, Eastern Pennsylvania, Delaware, the lower metropolitan New Y ork City region including Staten Island, and the District of Columbia. This term also includes the ”Mid\nAtlantic" territory as defined by Home Depot and the territories represented by Home Depot's defined market zones 43, 176, 10, 20, 15, 34, 39, 65, 66, 68, 86, 93, 111, 112, 116, 177, 191, 202, 260, and 272 (”USA Sub-Zones").\nNotwithsmnding the forgoing, the USA Sub-Zones shall not include any market zone in which USA is not directly engaging in business.\n(12) “Trademarks” means the following trademark(s):\nCnuntry anegish-afinn Registratinn Number Mark\nUnited Stan? 1,489,348 — Designer Decks\nUnited States 1,519,195 DesignerDecks\nUnited States 1,490,192 D esigner Decks (Stylized “D ”)\nUnited States 1,410,546 D esigner Decks (Design)\nUnited States 2,005,787 Invisanail\n(13) “Licensed Patents" means the following patent(s):\nCnuntry nl Patent Rights Patent Number Title\nUnited SW 4,622,792 — Modular Deck Structure And MWonstmcting Same\nUnited States 5,664,381 Construction Nailing Method And Structures\n(1)\nSection 2. The Grant\nFor the duration of this Agreement and upon the conditions hereinafter more specifically set forth, USA hereby grants to Universal the exclusive right to utilize the Deck Process in conjunction with the Intellectual Property for the\nsale, furnishing and installation of Product in the Market Zones.\nPage 4 of 7\n(2)\n(3)\n(4)\n(5)\nFor the duration of this Agreement USA hereby grants to Universal the exclusive right to use the Trademarks in the Market Zones on the Product manufactured and sold by Universal under the license granted in Paragraph (1) of\nthis Section (2) on such Product, subject to the terms and conditions hereinafter set forth.\nFor the duration of this Agreement USA hereby grants to Universal the exclusive right in the Market Zones to utilize the Deck Process to fabricate and manufacture the Product under the Licensed Patents in the Market Zones\nunder the license granted in Paragraph (1) of this Section (2) on such Product, subject to the terms and conditions hereinafter set forth.\nExcept as otherwise set forth herein, Universal shall have no right (i) to permit or subcontract others to use the Deck Process or the Intellectual Property for Universal; (ii) to disclose to or permit or sublicense others to use the\nDeck Process or the Intellectual Property; (iii) to use the Intellectual Property or the Deck Process in connection with the manufacture, use or sale of equipment or goods manufactured by Universal other than Product, except for\nincidenml use; or (iv) to use the Intellectual Property or the Deck Process outside of the Market Zones.\nUSA represents that it has the complete and unrestricted right to grant to Universal the rights in the Intellectual Property as set forth in this Agreement, and that the modular decking system specifications and design methods which\nare part of the Intellectual Property are suitable for the construction of residential decks, subject to proper site design, fabrication, installation and other job-specific related variables. USA further represents it has the authority and\nability to grant to Universal the utilizations to the Trademarks and Licensed Patents as set forth herein.\nSection 3. Transfer\nUSA will furnish to Universal, with the least possible delay following the Effective Date, all Intellectual Property which USA may have on hand in documenmry form on the Effective Date relating to Product. Nothing conmined herein shall be construed as requiring USA to perform any act in conflict with the laws of the United States of America pertaining to the export of technical information or dam. (1)\n(2)\nSection 4. Manufacturing A ssistance\nDuring the term of this Agreement, at the written request of Universal, USA will send competent representatives to visit Universal’s manufacturing plant or plants for the purpose of assisting and advising Universal in connection\nwith the Deck Process. The identity and number of such representatives and the date and duration of each such visit shall be such as USA and Universal may mutually agree to be necessary. USA shall not be required to provide\nmore than twenty days of personnel support perAnnual Y ear. Universal shall pay a daily assistance fee of $600.00 per person for such advisory services, plus all reasonable tiaveling, living and other costs and expenses of such\nrepresentatives.\nUniversal shall have the right, at its own cost and expense and without any cost or expense to USA, to send competent representatives to USA to study at reasonable times and in a reasonable manner, the manufacturing methods\nand processes employed by USA in its commercial manufacture of Product. The identity and number of such represenmtives and the date and duration of each such visit shall be such as USA and Universal may mutually agree to\nbe necessary. During such visits, USA shall permit Universal’s representatives to exercise, and shall assist them in exercising, the rights granted to Universal pursuant to this Section 4 and shall permit them to have, and shall assist\nthem in having, such discussions and practical observations as may be necessary with competent representatives of USA relating to the manufacturing methods and processes employed by USA with respect to Deck Process.\nUniversal shall indemnify USA from any liability which might be asserted or claimed against USA arising out of said visits by Universal’s represenmtives, including personal injury to or property damage of such representatives.\nPage 5 of 17\n(1)\n(2)\n(3)\n(1)\n(2)\n(3)\n(4)\n(5)\nSection 5. Protection of Industrial Propem\nUniversal expressly acknowledges and agrees that, except in the Market Zones and to the extent of the grant set forth in Section 2, Paragraph (1), it does not acquire under this Agreement any rights in orto the use of the\nTrademarks or Licensed Patents or the Intellectual Property or the Deck Process used or adopted in connection with Product or otherwise by USA anywhere in the world.\nUniversal further undertakes that it may not at any time contest anywhere in the world ownership of any of the Trademarks, Licensed Patents, Intellectual Property or Deck Process rights of USA.\nUpon termination of this Agreement, Universal shall promptly deliver free of charge to USA all materials, including signs, advertising and catalogs conmining the trademarks and tradenames of USA, which are in the possession of\nUniversal or its employees and Universal shall desist from making further use of these materials\nSection 6. Protection and Ownership of Intellectual Property\n \nAll Intellectual Property furnished to Universal hereunder remains the property of USA.\nUniversal agrees to keep all Intellectual Property confidential. Universal may not, without written consent from USA, communicate or allow to be communicated any Intellectual Property to anyone except to its wholly owned\nsubsidiaries, officers, employees, agents or subcontractors and only to such extent as may be necessary for the proper manufacture and sale of the Product in accordance with this Agreement Universal agrees to take all necessary\nprecautions in a manner acceptable to USA to keep said Intellectual Property and the Deck Process secret and to restrict its use as aforesaid.\nUniversal agrees that any reproduction, notes, summaries or similar documents relating to the Intellectual Property supplied hereunder immediately upon their creation become and remain the property of USA. Universal shall be\nresponsible for ensuring from persons to whom authorized disclosure of Intellectual Property is made that such persons shall treat all Intellectual Property supplied hereunder as confidential and to restrict its use in the manner\nprovided in this section.\nAll copies of any information delivered to Universal relating to USA pursuant hereto shall, upon the written request of USA, be promptly returned to USA in the event that this Agreement is terminated. Universal agrees that\nUSA ’5 confidential information shall not be used or disclosed, unless such disclosure is required by law, by Universal for any purpose other than as contemplated by this Agreement. For purposes of this Section, "confidential”\ninformation does not include information which: (a) is or becomes generally available to the public other than as a result of disclosure which is in violation of this Section,- (b) was known by Universal on a non-confidential basis\nprior to the disclosure thereof; or (c) becomes available to Universal on a non-confidential basis from a third party who is not known by Universal to be bound by a confidentiality agreement with USA, or is not otherwise\nprohibited from transmitting the information to Universal.\nAll copies of any information delivered to USA relating to Universal pursuant hereto shall, upon the written request of Universal, be promptly returned to Universal in the event that this Agreement is terminated. USA agrees that\nUniversal’s confidential information shall not be used or disclosed, unless such disclosure is required by law, by USA for any purpose other than as contemplated by this Agreement. For purposes of this Section, "confidential”\ninformation does not include information which: (a) is or becomes generally available to the public other than as a result of disclosure which is in violation of this Section,- (b) was known by USA on a non-confidential basis prior\nto the disclosure thereof,- or (c) becomes available to USA on a non-confidential basis from a third party who is not known by USA to be bound by a confidentiality agreement with Universal, or is not otherwise prohibited from\ntransmitting the information to USA.\nPage 6 of 17\n(6) It is understood by and between the parties hereto that the foregoing covenants are essential elements to the relationship between the parties, The parties agree that an award of damages alone for breach of this provision would be\ninadequate protection for the other party, as the injury would be irreparable, and therefore that equitable or injunctive relief is appropriate as well.\nSection 7. Quality Control, Trademark Use and Goodwill\n(1) Universal shall report promptly to USA any changes in the design, specifications, material or similar characteristics of the Product, or any of them.\n(2) Universal shall mainmin the highest standards of quality and workmanship in its manufacture of Product.\n(3) Universal shall permit the duly authorized representatives of USA to inspect during normal working hours the plant of Universal, the process of manufacture of the Product, and any Product manufactured by Universal and cause to\nbe inspected by them the plant of any contract manufacturer producing the Product or any part thereof.\n(4) So long as Universal is licensed under Section 2 hereof, Universal agrees that a plate shall be affixed to each such Product on an outward facing post or rail or otherwise in a place to be designated by USA, and which shall\nconspicuously and permanently display the mark ”Designer Decks“ followed by the patent numbers of the Licensed Patents.\n(5) Universal hereby acknowledges that the Trademarks are lawful trademarks and that they are the sole and exclusive property of USA. Universal agrees that it will not at any time during the term of this Agreement, or thereafter,\nbecome a party, directly or indirectly, in any country, to the contesting of, or the impairing of, the validity, goodwill or value of the Trademarks or any applications or registrations governing the Trademarks, or of USA's title to\nthe Trademarks. Universal agrees that it will provide written notice to USA if it learns of any third-party contesting of the validity, goodwill or value of the Trademarks or any applications or registrations governing the\nTrademarks, or of USA’s title to the Trademarks. Universal acknowledges that it shall have only those rights to use the Trademarks which are provided for under the terms of this Agreement. Universal will not directly or\nindirectly obtain or attempt to obtain in any country during the continuance of this Agreement or at any time thereafter, any right, title or interest, by registration, copyright or otherwise in orto any trademarks, trade names,\ninsignia or designation, or combination thereof, used or owned by USA in any part of the world, except with the written consent of USA.\n(6) Immediately upon termination of this Agreement or of Universal’s license under Section 2 hereof for any reason, Universal will discontinue use andjor display in any manner whatsoever of the Trademarks and will not\nsubsequently adopt and/or use any trademark, service mark, trade name or the like, which would be likely to cause confusion with the Trademarks.\nSection 8. License Fees\nUniversal shall pay to USA a license fee of One Hundred Fifty Thousand Dollars ($150,000.00) upon the Effective Date.\nSection 9. Royalg Fees\nUniversal shall pay to USA a royalty fee of Fifty Dollars ($50.00) (the ”Threshold Royalty Fee”) for each and every deck sold by Universal, regardless of installation of said deck, under the Universal SF&I, so long as the deck is partially\nor completely elevated above ground, but regardless of whether the deck is a pre-fabricated modular deck or not. Universal further guaranties as follows:\n(1) For the second Annual Y ear, in those Market Zones determined by the parties to have a 12-month selling season (the “12-Month Market Zones”), the Threshold Royalty Fee shall be no less than an amount equal to 12.5 decks per\nHome Depot Store, per 12-Month Market Zone. ExhibitA, attached hereto and made a part hereof, sets forth the agreed upon 12-Month Market Zones.\nPage 7 of 17\n(9)\n(10)\nFor the second Annual Y ear, in those Market Zones determined by the parties to have a 9-month selling season (the "9—Month Market Zones”), the Threshold Royalty Fee shall be no less than an amount equal to 8.25 decks per\nHome Depot Store, per 9-Month Market Zone. ExhibitA sets forth the agreed upon 9-Month Market Zones.\nFor the third Annual Y ear and each Annual Y ear thereafter, in the 12-Month Market Zones, the Threshold Royalty Fee shall be no less than an amount equal to 25 decks per Home Depot Store, per 12-Month Market Zone.\nFor the third Annual Y ear and each Annual Y ear thereafter, in the 9-Month Market Zones, the Threshold Royalty Fee shall be no less than an amount equal to 17 decks per Home Depot Store, per 9-Month Market Zonei\nThere shall be no guaranteed minimum royalty fees in any Market Zone determined by the parties to have less than a 9-month selling season (the "Short Market Zones”) nor in any Market Zone determined by the parties to not be\nconducive to the sale of prefabricated modular decking (the "No Sale Market Zones”)i Any decks sold in either the Short Market Zones or the No Sale Market Zones shall nonetheless be subject to the Threshold Royalty Fees\nExhibit A sets forth the agreed upon Short Market Zones and the No Sale Market Zones.\nThe total of Threshold Royalty Fees paid during an Annual Y ear shall be credited against the mml guaranteed minimum royalty fees required for that same Annual Y earl\nUniversal shall notify USA in writing within 30 days of the grant of any new Market Zone under the Universal SF&I, which new Market Zone shall automatically become subject to this Agreement Universal’s notification to\nUSA shall also state the ”classification” into which the new Market Zone shall be placed (the 12-Month Market Zones, 9-Month Market Zones, etc. . ) which classification USA shall have 15 days to object to in writing. If USA\ndoes not object to the proposed classification, ExhibitA to this Agreement shall be deemed to be amended by Universal’s notification as applicable to reflect the new Market Zone. If USA does object to the proposed classification\nby Universal, the parties agree to work in good faith to resolve the classification dispute within 10 business days of USA’s objection or submit the matter to the dispute resolution procedures set forth in Section 25.\nFor any new Market Zone granted to Universal following the Effective Date, and which classification the parties agree to, the timing schedule for the guaranteed minimum royalty fees set forth in this Section will begin to run as of\nthe date of grant of the new Market Zone to Universal\nThe guaranteed minimum royalty fees described in this Section shall remain in full force and effect so long as Universal continues any utilization of the Intellectual Property.\nAll payments described in this Section are to be gross payments and shall be made without deduction, other than such mx or other amount that Universal is required to deduct or withhold by law, and in regard to any such\ndeduction Universal shall use all reasonable endeavors to assist USA to claim recovery or exemption under any double mation or similar agreement, and evidence as to the payment of any such tax or sum withheld shall be\nprovided by Universal to USA\nPage 8 of 17\n(1)\n(2)\n(3)\n(4)\n(5)\n(1)\n(2)\n(3)\n(4)\nSection 10. Accounting for Fees and Payment\nThreshold Royalty Fees shall be calculated on a quarterly basis based on a calendar year, and each quarter’s royalty fees shall be paid within 30 days after the end of that quarter. Guaranteed minimum royalty fees, if applicable,\nshall be calculated and paid within 30 days after the close of each applicable Annual Year.\nUniversal shall pay USA ’s invoices for any representative services under Section 4 within thirty (30) days after the date of the invoice\nUniversal shall pay USA interest at the rate of 1.5 percent per month from the due date on any payment due hereunder not received by USA on the due date.\nUnless otherwise directed by USA in writing, payments shall be made to USA by wire to a bank in the United States designated by USA in writing in United Smtes dollars.\nUniversal shall at all times during the continuance of this Agreement keep at its usual place of business complete sales records and make true and correct entries therein at the earliest opportunity for the purpose of showing the\nquantity and selling prices of each distinct Product sold by it directly or indirectly per Market Zone and Home Depot Store. USA shall have the right at any reasonable time, by its authorized representatives, to examine said sales\nrecords for the purpose of and to the extent necessary for verifying the accuracy of Universal's performance under this Agreement.\nSection 11. Opt-Out Option and Alternative Rights of Use\n \nNotwithsmnding anything to the contrary contained herein, Universal may choose to permanently opt out of any Market Zone existing as at the Effective Date or granted following the Effective Date (”Opt Out Zones”). ExhibitA\nsets forth the agreed upon Opt Out Zones as of the Effective Date.\nUniversal shall notify USA of any new Opt Out Zones within 30 days of Universal’s election, but in any event at least 15 days prior to its cessation of activity in Market Zone under this Agreement.\nUniversal shall not have any rights to the Intellectual Property or the Deck Process, nor any Threshold Royalty Fee obligations, in any Market Zone which it has elected to opt out of.\nShould Universal cease its relationship with Home Depot in any Market Zone, Universal shall then have 30 days to notify USA of its election to continue its use of the Intellectual Property and the Deck Process in that Market\nZone, on a non-exclusive basis, subject to the Threshold Royalty Fee obligation of this Agreement but the Threshold Royalty Fee shall be calculated on all decks thereafter sold by Universal in such Market Zone as opposed to\ndecks sold in Home Depot Stores in such Market Zone. Universal guarantees that the annual Threshold Royalty Fee in any such Market Zone, pro rated for the first year as applicable, shall be no less than an amount equal to 25\ndecks per Home Depot Store existing in that Market Zone.\nSection 12. First Refusal\nUniversal is hereby granted a right of first refusal to any new territory in which USA seeks to license its Intellectual Property for the Deck Process. This right shall expire twelve months from the Effective Date. USA shall notify Universal of any new territory USA seeks to license. The notice shall include a statement of the time within which Universal must act to exercise its right of first refusal. To exercise the right of first refusal, Universal shall within 15 days of USA’s notification give notice to USA of Universal's commitment to include such new territory under this Agreement. Any new territory so included shall be subject to Threshold Royalty Fees provided for in Section 9 as well as the guaranteed minimum royalty fees of Section 9. The timeline for such guaranteed minimum royalty fees will begin to run as of the date of Universal's election to exercise this right of first refusal. This right of first refusal shall not apply to any Market Zone which Universal has opted out of in accordance with Section 11. Page 9 of 17\nSection 13. Indemnification and Release\n(1) Universal shall indemnify USA and hold it harmless against and from any liability, claims, damages, and l or expenses whatsoever in any way arising directly or indirectly out of Universal's manufacture, distribution, marketing,\nservice, testing, sale, insmllation or use of the Product or the Deck Process and Universal hereby further releases USA from any such liability, claims, damages or expenses.\n(2) Nothing contained in this Agreement shall be construed as:\n(a) Requiring the filing by USA of any trademark or patent application, the securing or maintaining of any trademark or patent in force after the Effective Date Notwithsmnding the forgoing, USA shall mke such steps as it deems\nreasonable to protect its Trademarks and Licensed Patents;\n(b) A warranty or representation by USA as to the validity or scope of any patent,-\n(c) A warranty or represenmtion by USA that any manufacture, sale, or use hereunder will be free from infringement of patents or trademarks owned by others than USA, provided, however, USA shall cooperate with and render\nreasonable assistance to Universal in the defense of any patent or trademark infringement action on terms mutually acceptable to the parties;\n(d) Conferring by implication, estoppel or otherwise upon Universal any license or other right under any patent or trademark except rights expressly granted hereunder to Universal; or\n(e) Other than as specifically set forth in Section 2(5), a warranty by USA as to the accuracy, sufficiency or suitability for use of the Intellectual Property or Deck Process licensed and made available hereunder or for the quality or\nquantity of any Product or processes made by the use thereof, and USA assumes no responsibility or liability, including liability for consequential damages or loss of profit, which might arise out of the use by Universal of said\ninformation.\nSection 14. Improvements\n(1) Any inventions, improvements, modifications, patents or patent applications made or acquired by Universal applicable to the Product shall be immediately and fully disclosed by Universal to USA. USA shall have prior approval,\nwhich approval must be made in writing, to any changes in designs, techniques, procedures, Product and Product partsr Universal shall grant and hereby grants to USA a complete, worldwide, unrestricted, irrevocable right and\nlicense, together with the right to sublicense others, under all of said inventions, improvements, patents and patent applications for the full term of said patents. USA’s license shall be non-exclusive.\n(2) In the event Universal does not wish to file patent applications on any of such inventions and improvements, it will so notify USA prior to any public divulging thereof and upon the request of USA, execute and procure the\nexecution of any and all patent applications and all papers necessary or desirable to enable USA to protect such inventions or improvements and whatever assignments or transfer instruments are necessary or required to effectuate\nownership of the rights in USA in any and all countries of the world which USA may elect. Any expense incurred in the prosecution of such patent applications by USA shall be borne by USA. It is agreed that Universal shall have\nthe right to use in the Market Zones such patent or patents non-exclusively and free of charge for the full term of said patent or patents.\nSection 15. United Smtes Government Re ations\n(1) Universal agrees that it will not, without the prior written consent of USA, sell, lease or make available any of the Product, or disclose or sublicense any of the Intellectual Property or Deck\nPage 10 of 17\n—\nProcess to any person, or any government or agency of any country, if such sale, lease, shipment, disclosure or sublicense would be regarded by the United States Government as a breach of the Foreign Assets Control Regulations\nor the Transaction Control Regulations.\n(2) It is further understood that Universal will obtain from any customer or subcontractor or supplier, if so requested by USA, a declaration that none of the Product or Intellectual Property or Deck Process will be sold, conveyed,\nleased or revealed to any person or movement agency against the provisions of the applicable United States laws and regulations and the grant conveyed herein.\nSection 16. Duration and Termination\n(1) This Agreement shall terminate upon the Expiration Date unless otherwise agreed to by the parties or sooner terminated as herein provided.\n(2) This Agreement will be deemed to have terminated in the event Universal opts out of each and every Market Zone in accordance with the terms of Section 11.\n(3) This Agreement will be deemed to have terminated in the event Universal is substantially prevented from utilizing the Deck Process or the Intellectual Property due to infringement or similar claims against the USA Licensed\nPatents or Trademarks.\nSection 17. Defaults and Waivers\nIn the event either party shall be in default by failing to observe or fulfill any condition or representation of this Agreement (the "D efaulting Party”), the other party (the "Non Defaulting Party”) shall have the right to serve upon such\nDefaulting Party a written notice specifying such default, requesting the remedying thereof within thirty (30) days from the date of said notice. If such default is not satisfactorily remedied within said period, the Non Defaulting Party may\nserve the Defaulting Party with a written notice of immediate termination of this Agreement, upon which all rights and licenses, except those which are irrevocable or which may have accrued hereunder at the date of such notice, shall be\ncancelled, and each party will execute whatever documents may be necessary to return the rights or property of the other party which may have been acquired hereunder. The Non Defaulting Party may choose to submit the issue to the\ndispute resolution procedures of Section 25, rather than terminating this Agreement. No waiver of any of the terms and conditions of this Agreement shall be binding or effectual for any purpose unless expressed in writing and signed by\nthe party hereto giving the same, and any such waiver shall be effective only in the specific insmnce and for the purpose given. No failure or delay on the part of either party hereto in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.\nSection 18. Insolvency or Change in Control\n(1) In the event that Universal shall be either deemed insolvent, make an assignment for the benefit of a creditor, or be legally obliged to cease to trade or to wind-up its affairs and go into liquidation, USA shall be entitled to give\nwritten notice terminating this Agreement forthwith without prejudice to the rights of either USA or Universal which may have accrued hereunder at the date of such termination.\n(2) Universal shall, in the event that the effective control of Universal passes from the hands of the persons, firms or corporations in whose hands it is at the date of this Agreement, inform USA in writing forthwith of any such change\nin control. Should such change in control pass control into the hands of some party which USA in its reasonable judgment considers would not be commercially or otherwise favorably or impartially disposed towards the business\ninterest of USA (including the continued exploitation of sales of the Product under this Agreement), USA shall be entitled by notice\nPage 11 of 17\n—\nin writing to terminate this Agreement forthwith without prejudice to rights already accrued hereunder,\nSection 19. Relationships\nIt is understood that in giving effect to this Agreement, Universal shall not be a partner, agent, franchisee or employee of USA for any purpose and that its relationship to USA shall be that of an independent contiactor. Universal shall not\nhave the right to enter into contiacts, nor incur expenses or liabilities, on behalf of USA.\nSection 20. Force Majeure\nNeither party shall be liable for failure to perform its part of this Agreement when the failure is due to causes beyond its reasonable contiol such as, but not limited to, fire, flood, stiikes, labor troubles or other industrial disturbances,\ninevitable accidents, war (declared or undeclared), embargoes, blockades, legal restrictions, riots, insurrections or govemmenml regulations\nSection 21‘ Effect of Termination\nUpon termination or expiration of this Agreement, Universal promises:\n(a) o cease all manufacture and sale of the Product;\n(b) ‘o cease the use of all Intellectual Property, the Deck Process and the Licensed Patents;\n(c) 0 take all action necessary (i) to transfer to USA or (at USA ’s option) to cancel any and all rights Universal may have to use the Intellectual Property, Deck Process and Licensed Patents and (ii) to provide USA with suitable evidence\nof such cancellations if USA exercises its option to demand them;\n(d\n‘o retum to USA all documents (including but not limited to any reproductions, notes or summaries), models and other materials relating to the Intellectual Property, Deck Process and Licensed Patents;\n \n(e) 0 not withhold any moneys accrued, due and payable by Universal to USA hereunder, on the ground of a dispute arising out of or in relation to this Agreement and as set-off against any claim for damages sought to be put forward by\nUniversal; and\nSection 22, Nonassigability\nThis Agreement and each and every covenant, term and condition herein is binding upon and inures to the benefit of the parties hereto and their respective successors, but neither this Agreement nor any rights hereunder may be assigned\nor sublicensed, directly or indirectly, voluntarily or by operation of law, by Universal without first receiving the prior written consent of USA. Notwithstanding the forgoing, Universal shall have the right, subject to the consent of USA,\nwhich consent shall not be unreasonably withheld, to sublicense its rights hereunder subject to terms and conditions customary for sublicensing agreements, all to be negotiated in good faith between the parties and set forth in an\nagreed-upon sublicensing agreement by and between Universal and its intended sublicensee, to which USA shall be a third-party beneficiary, Under no event shall any sublicense agreement release Universal from its obligations and\nresponsibilities set forth in this Agreement USA shall in no event be required to consent to any sublicense agreement where, in the opinion of USA’s counsel, such agreement could be deemed to create a franchise relationship for USA.\nPage 12 of 17\n—\nSection 23. Notices and Payments\nUntil further notice, to be legally effective any payment or notice which the parties are required or permitted to give to each other pursuant to any of the provisions of this Agreement shall be sent by certified and registered airmail or by\novernight or second day delivery via an internationally recognized carrier such as Federal Express or UPS to the other party at the following address set after its name:\nUSA Deck, Inc. Universal Forest Product, Inc.\n1041 Cannons Court 2801 E. Beltline N.E.\nWoodbr'idge, Virginia 22191-1434 Grand Rapids, Michigan 49525\nAttn: Daniel L. Betts, President Attn: Kent Bathurst, VP.\nThe effective date of any such notice shall be two days following date of mailing.\nSection 24. Restrictive Covenants\nUpon the Effective Date and for a period of two (2) years following the termination of this Agreement for any reason, Universal (foritself and any affiliate or subsidiary) shall not directly or indirectly: invest in, own, render consulting\nservices to, or operate any entity that engages in the manufacture, sale or installation of Product Notwithsmnding the foregoing, this non-competition restriction shall rim for a period of five (5) years in the USA Zones and any other state\nor geographical area in which USA is operating in directly or through a licensee (other than through Universal) as of the date of termination of this Agreement for any reason. Furthermore, upon the Effective Date and for a period of five\n(5) years following the termination of this Agreement for any reason, Universal (for itself and any affiliate or subsidiary) shall not, and shall cause its affiliates, successors and assigns not to, hire or directly solicit for hire any person then\nan employee of USA. It is agreed that the period of time during which Universal is prohibited from engaging in such practices pursuant to this section shall be extended by any length of time during which Universal is in breach of this\nsection. Notwithsmnding the foregoing, this Noncompetition clause shall not prohibit any party from owning a one percent (1%) or less interest in any company whose shares are traded on any public securities exchange.\nIt is understood by and between the parties hereto that the foregoing covenants are essential elements to the relationship between the parties. The parties agree that an award of damages alone for breach of this provision would be\ninadequate protection for USA, as the injury would be irreparable, and therefore that equimble or injunctive relief is appropriate as well. In addition, the parties agree that USA shall be entitled to collect its reasonable attomey’s fees if it\nshould prevail in an action for breach of the covenants of this section.\nSection 25. Dispute Resolution\nThe parties agree that any controversy other than a claim for injunctive relief (“Dispu ”) arising out of this Agreement shall be resolved in accordance with the following procedures. A Dispute may include, without limimtion, any claim\nwith respect to either party’s obligations or its performance, failure to perform, adequacy of performance or good faith exercise of its rights under the Agreement. The parties shall endeavor in good faith to promptly, reasonably, and\nequitably settle all Disputes on an informal basis in the normal course of business. All Disputes which the parties cannot so settle in the normal course of business shall be negotiated and mediated in accordance with this Section.\nEither party (the "initiating party") may commence a negotiation of a Dispute ("Negotiation”) by serving on the other party (the ”responding party”) a written smtement of the nature and substance of\nPage 13 of 17\n—\nthe Dispute, a brief summary of its position with respect to the Dispute, its justifications therefor, and its proposal for resolution of the Dispute. Within ten (10) days, the responding party shall prepare and serve on the initiating party a\nwritten statement of its position in response. These position papers may be served in accordance with the notice provisions of this Agreement to the authorized representatives of the parties (”Executives”).\nWithin fourteen (14) days of exchanging position papers, the parties shall conduct a face-to-face or telephonic meeting of the Executives and appropriate members of their respective management teams with knowledge of the matters\nunderlying the Dispute and full authority to resolve the Dispute If the Executives cannot agree to a resolution of the Dispute within five (5) days thereafter, they may continue discussions or either party may invoke the mediation\nprocedures set forth hereafter by giving notice to the other party.\nEither party may invoke non-binding mediation (”Mediation") upon conclusion of the Negotiation procedures described above by serving a notice of mediation on the other party and proposing a mediator. The other party shall respond\nwithin five (5) business days advising as to whether the proposed mediator is acceptable and, if not, proposing an alternative mediator. If the parties cannot agree within an additional two (2) business days to an acceptable mediator, then\non the second business day after delivery of the other party’s response, each party shall concurrently deliver to the other by an overnight delivery service of general commercial use and acceptance (such as Airborne, UPS, or Federal\nExpress) a list of five proposed mediators in order of preference. The Person ranking highest on the two lists (measured by a total point system of 5 points for the first choice on each list, 4 points for the second choice on each list, etc.)\nshall be designated the mediator unless such Person refuses the designation, in which event the next highest ranking Person shall be designated the mediator. If no Person appears on both lists, or no Person who appears on both lists\naccepts the designation, and the parties cannot within five (5) additional days agree to a mediator, the parties shall each then designate a Person (”designee”) who shall together decide on and confirm appointment of the mediator. If the\ndesignees are unable to agree, the designees shall apply to the Center for Public Resources to appoint a mediatorin accordance with its Model Procedure for Mediation of Business Disputes as then in effect The Person so appointed (the\n”Mediator”) shall be compensated at an hourly rate (or an alternative compensation arrangement) to be agreed upon between the parties and the Mediator prior to appointment. The parties shall each pay one half the Mediator’ s fee and\nexpenses.\nEach party shall prepare a written statement of the Dispute and its position, a summary of the prior negotiations, and a final proposal of settlement. Within fifteen (15) days of appointment of the Mediator, the parties shall submit such\nsmtement to the Mediator, together with such supporting or evidentiary materials or other matter as the parties deem appropriate to the Dispute. Concurrently, the parties shall deliver a copy of all submitted materials to the other party.\nAny further submissions shall be made only with the prior consent of the Mediator and all submissions shall be copies to the other party. No "discovery” or other proceeding shall be conducted except as directed by the Mediator. The\nMediator may, at his option, hold hearings or conduct interviews, discussions, or negotiation sessions with any Person or entity, which he believes to be relevant to the Dispute. The Mediator may in his discretion conduct such interviews\nor discussions unilaterally or with the parties present. The Mediation shall be generally conducted in accordance with the Model Procedures for Mediation of Business Disputes as then in effect, or pursuant to such other procedures as the\nparties may agree. The parties shall endeavor to assist the Mediator in concluding the Mediation within a reasonable time, with a target of not later than thirty (30) days after initial submission of materials to the Mediator.\nAt any time, after the parties have engaged in reasonable mediation activity, the Mediator may declare the Mediation to be terminated, and either party may elect to terminate the Mediation at any time by giving notice to the other party\nand the Mediator, if the Dispute is not resolved within ninety (90) days after the appointment of the Mediator. If, upon termination of the Mediation, the Dispute remains\nPage 14 of 17\n—\nunresolved, both parties shall reserve all rights to seek a judicial resolution of the Dispute in accordance with applicable law, except as otherwise restricted by this Agreement, and to receive their costs and reasonable attorneys fees in a\nprevailing action. The resolution of any Dispute shall not constitute an amendment to the Agreement or a waiver or modification of either party's rights.\nSection 26. Unenforceable Terms\nIn the event any term or provision of this Agreement shall for any reason be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other term or provisions hereof. In such an\nevent, this Agreement shall be interpreted and construed as if such term or provision, to the extent the same shall have been held invalid, illegal or unenforceable, had never been contained herein.\nSection 27. Goveming Law and Construction\nThis Agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Virginia and the United States of America Venue for any dispute arising hereunder shall be Prince Williams County, Virginia The\nEnglish language shall control any interpretation of terms. This Agreement shall be construed without regard to any presumption or any other rule requiring construction against the party who caused it to have been drafted. The headings\nof sections and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof. When the context requires, the gender of all words used\nherein shall include the masculine, feminine and neuter and the number of all words shall include the singular and plural. Use of the words ”herein", ”hereof”, "hereto” and the like in this Agreement shall be construed as references to this\nAgreement as a whole and not to any particularArticle, Section or provision of this Agreement, unless otherwise noted.\nSection 2 8. O ther A greements; A mendments, Miscellaneous\n \n(1) This Agreement represents the full and complete understanding and agreement of the parties and supersedes and cancels any prior agreements between the parties or their predecessors relating to Product, the Intellectual Property,\nthe Deck Process or otherwise, other than in regard to previously executed agreements of confidentiality or similar restrictive covenants, which shall be interpreted in conduction with this Agreement to increase but in no event to\nlimit the protections of this Agreement, in order to provide the strongest protection to the party seeking safekeeping of its proprietary and confidential information. This Agreement may be amended or nullified only by a writing\nexecuted by officers of both parties.\n(2) Except as may otherwise be required by law or regulation or by court or administrative agency order, the parties hereto agree that no press release or similar public announcements shall be made with respect to the proposed\ntransactions unless the parties hereto have consented in writing to such disclosure, which consent shall not be unreasonably withheld.\n(3) Upon termination or expiration of this Agreement, the terms and conditions of this Agreement which by their reasonable construction are intended to survive termination or expiration of this Agreement shall, in such event, remain\nin effect, including but not limited to those pertaining to Universal’s covenants, representations and warranties to USA.\n(4) This Agreement may be executed in multiple counterparts, each of which shall be deemed an original but all of which together shall constitute a single instrument Execution and delivery of this Agreement by exchange of\nfacsimile copies bearing facsimile signature of a party shall constitute a valid and binding execution and delivery of this agreement by such party.\nPage 15 of 17\n(5) The parties did not engage the services of any broker for the procurement of this transaction Each party hereto shall bear its own costs and expenses (including accounting costs and attorneys’ fees), except that each party hereto agrees to pay the costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the other parties in successfully (a) enforcing any of the terms of this Agreement or (b) proving that another party breached any of the terms of this Agreement or related documents‘\n(6) Except as may otherwise be required by law or regulation or by court or administrative agency order, the parties hereto agree that no press release or similar public statements shall be made with respect to the proposed transactions unless the other party has consented to such disclosure. which consent shall not be unreasonably withheld.\nSection 29. Effective Date\nThe Effective Date shall be on or before March 31, 2003. or such other date as mutually agreed to by the parties.\nIN WITNESS WHEREO F, the parties hereto have caused this Agreement to be executed in their corporate names by their duly authorized representatives.\nUSA DECK, INC.\nBY: IS/ Daniel L Bets\nW\n7DATE: 3/31/03\nPage 16 of 17\nUNIVERSAL F0 RE ST PRODUCTS, INC.\nBY : Isl Matthewji Missad\nNANMEfier—Mm—\nTITLExec. VP\nDATH31/03\nEXHIBIT A\n12-M onth Market Z ones 9-Month M arket Zones Short M arket Z ones No Sale M arket Z ones Opt Out Z ones\nPage 17 of 17	Exhibit 10.38\nPROPRIETARY INFORMATION LICENSING AGREEMENT\nBETWEEN\nUSA DECK, INC.\nAND\nUNIVERSAL FOREST PRODUCT, INC.\nPAGE\nSECTION CONTENTS\n(1)\nDefinitions\n3\n(2)\nThe Grant\n4\n(3)\nTransfer\n5\n(4)\nManufacturing Assistance\n5\n(5)\nProtection of Industrial Property\n6\n(6\nProtection and Ownership of Intellectual Property\n6\n(7)\nQuality Control, Trademark Use and Goodwill\n7\n(8)\nLicense Fees\n7\n(9)\nRoyalty Fees\n7\n(10)\nAccounting for Fees and Payment\n9\n(11)\nOpt-Out Option and Alternative Rights of Use\n9\n(12)\nFirst Refusal\n9\n(13)\nIndemnification and Release\n10\n(14)\nImprovements\n10\n(15)\nUnited States Goverment Regulations\n10\n(16)\nDuration\n11\n(17)\nDefaults and Waivers\n11\n(18)\nInsolvency or Change in Control\n11\n(19)\nRelationships\n12\n(20)\nForce Majeure\n12\n(21)\nEffect of Termination\n12\n(22)\nNonassignability\n12\n(23)\nNotices and Payments\n13\n(24)\nRestrictive Covenants\n13\n(25)\nDispute Resolution\n13\n(26)\nUnenforceable Terms\n15\n(27)\nGoveming Law and Construction\n15\n(28)\nOther A greements; Amendments, Miscellaneous\n15\n(29)\nEffective Date\n16\nExhibit A\n17\nPage 2 of 17\nPROPRIETARY INFORMATION LICENSING AGREEMENT\nBETWEEN\nUSA DECK, INC.\nAND\nUNIVERSAL FOREST PRODUCT, INC.\nThis Proprietary Information Licensing Agreement "Agreement") is entered into as of the 31s day of March, 2003, by and between USA Deck, Inc. ("USA") a corporation organized and existing under the laws of Delaware, with\nheadquarters located at 1041 Cannons Court Woodbridge, Virginia 22191-1434 and Universal Forest Product, Inc., ("Universal") a corporation, organized and existing under the laws of Michigan with headquarters located at 2801 E.\nBeltline N.E. Grand Rapids, Michigan 49525.\nWITNESSETH\nWHEREAS USA is engaged in the marketing, modular fabrication, modular manufacture, sale design and installation (hereinafter these proprietary processes and activities are singularly and jointly referred to as the "Deck Process") of\nprefabricated modular decks and decking products for the commercial and residential home remodeling industry; and\nWHEREAS, USA has developed a substantia body of Intellectual Property necessary and useful in the Deck Process and which constitutes a valuable asset of USA;\nWHEREAS, USA enjoys a special and high reputation in this field of industry with respect to its name and also with respect to trademarks identifying and distinguishing its products and the Deck Process; and\nWHEREAS, USA owns or has the right to grant licenses with respect to its Intellectual Property relating to the Deck Process; and\nWHEREAS Universal desires to obtain from USA a limited right to utilize the Deck Process using USA's Intellectual Property;\nNOW THEREFORE, in consideration of their mutual promises and undertakings hereinafter set forth, the parties intending to be legally bound hereby do covenant and agree that the above recitations shall be part of this agreement, and\nhereby further agree as follows:\nSection 1 Definitions\nFor the purpose of this Agreement:\n(1)\nAnnual Y ear" means a period which continues for twelve consecutive months. The first Annual Y ear of this Agreement begins on the Effective Date and ends twelve consecutive months thereafter, at which time, and as\napplicable the next Annual Y ear begins\n(2)\n"Effective Date" means the date on which this Agreement is executed by the parties hereto. If execution takes place on different dates, the later date shall be the Effective Date.\n(3)\n"Expiration Date" is the date eighty-four months from the Effective Date.\n(4)\n"Home Depot Store" means any "Home Depot retail location within a Market Zone.\n(5)\n"Home Depot" means The Home Depot U.S.A., Inc.\nPage 3 of 17\n(6)\n"Intellectual Property" means the Deck Process and all related information which is not general common knowledge and shall include, but shall not be limited to, installation methods, manufacturing methods, manufacturing set-u]\nand guidance, deck design principles, familiarization with ancillary and accessory items, timber specifications site surveys costing methods, sales methods advertising and lead generation methods designs, drawings, CAD\nblueprint libraries, specifications test data, charts, graphs, operation sheets, bills of materials and other technical information, quality studies, prices, catalogues, advertising, production data, specialized know-how, skill, and other\napplication information, relating to the marketing, manufacture, use, and sale of Product which is owned or controlled by USA, as now existing or as hereafter developed or modified by either USA or Universal.\n(7)\n"Market Zone(s)" means those geographical areas designated and granted to Universal in the Universal SF&I by Home Depot, as such geographical areas may change from time to time by Home Depot and / or by amendment\nto\nthe Universal SF&I. Notwithstanding the foregoing, Market Zones shall not include the USA Zones.\n(8)\n"Product" means prefabricated modular decks and decking accessories, including prefabricated modular deck railings and prefabricated modular deck stairs.\n(9)\n"Term of this Agreement" means the period between the Effective Date hereof and the Expiration Date.\n(10)\n"Universal SF&I" means Universal's SF&I Program Installer Agreement with Home Depot in existence as of the Effective Date, as such may be amended from time to time.\n(11)\n"USA Zones" means the states of Virginia, Maryland Eastern Pennsylvania, Delaware the lower metropolitan New Y ork City region including Staten Island, and the District of Columbia. This term also includes the "Mid\nAtlantic" territory as defined by Home Depot and the territories represented by Home Depot's defined market zones 43, 176, 10, 20, 15, 34, 39, 65, 66, 68, 86, 93, 111, 112, 116, 177, 191, 202, 260, and 272 ("USA ub-Zones").\nNotwithstanding the forgoing, the USA b-Zones shall not include any market zone in which USA is not directly engaging in business.\n(12)\n"Trademarks" means the following trademark(s):\nCountry of Registration\nRegistration Number\nMark\nUnited States\n1,489,348\nDesigner Decks\nUnited States\n1,519,195\nDesigner Decks\nUnited States\n1,490,192\nDesigner Decks (Stylized "D")\nUnited States\n1,410,546\nDesigner Decks (Design)\nUnited States\n2,005,787\nInvisanail\n(13)\n"Licensed Patents" means the following patent(s):\nCountry of Patent Rights\nPatent Number\nTitle\nUnited States\n4,622,792\nModular Deck Structure And Method FOr Tonstructing Same\nUnited States\n5,664,381\nConstruction Nailing Method And Structures\nSection 2. The Grant\n(1)\nFor the duration of this Agreement and upon the conditions hereinafter more specifically set forth, USA hereby grants to Universal the exclusive right to utilize the Deck Process in conjunction with the Intellectual Property for the\nsale, furishing and installation of Product in the Market Zones.\nPage 4 of 7\n(2) For the duration of this Agreement USA hereby grants to Universal the exclusive right to use the Trademarks in the Market Zones on the Product manufactured and sold by Universal under the license granted in Paragraph (1) of\nthis Section (2) on such Product, subject to the terms and conditions hereinafter set forth.\n(3)\nFor the duration of this Agreement USA hereby grants to Universal the exclusive right in the Market Zones to utilize the Deck Process to fabricate and manufacture the Product under the Licensed Patents in the Market Zones\nunder the license granted in Paragraph (1) of this Section (2) on such Product, subject to the terms and conditions hereinafter set forth.\n(4)\nExcept as otherwise set forth herein Universal shall have no right (i) to permit or subcontract others to use the Deck Process or the Intellectual Property for Universal; (ii) to disclose to or permit or sublicense others to use\nthe\nDeck Process or the Intellectual Property; (iii) to use the Intellectual Property or the Deck Process in connection with the manufacture, use or sale of equipment or goods manufactured by Universal other than Product, except for\nincidental use or (iv) to use the Intellectual Property or the Deck Process outside of the Market Zones.\n(5)\nUSA represents that it has the complete and unrestricted right to grant to Universal the rights in the Intellectual Property as set forth in this Agreement, and that the modular decking system specifications and design methods which\nare part of the Intellectual Property are suitable for the construction of residential decks, subject to proper site design, fabrication, installation and other job-specific related variables. USA further represents it has the authority and\nability to grant to Universal the utilizations to the Trademarks and Licensed Patents as set forth herein.\nSection 3. Transfer\nUSA will furnish to Universal, with the least possible delay following the Effective Date, all Intellectual Property which USA may have on hand in documentary form on the Effective Date relating to Product Nothing contained herein\nshall be construed as requiring USA to perform any act in conflict with the laws of the United States of America pertaining to the export of technical information or data.\nSection 4. Manufacturing Assistance\n(1)\nDuring the term of this Agreement, at the written request of Universal, USA will send competent representatives to visit Universal's manufacturing plant or plants for the purpose of assisting and advising Universal in connection\nwith the Deck Process. The identity and number of such representatives and the date and duration of each such visit shall be such as USA and Universal may mutually agree to be necessary. USA shall not be required to provide\nmore than twenty days of personnel support per Annual Y ear. Universal shall pay a daily assistance fee of $600.00 per person for such advisory services, plus all reasonable traveling living and other costs and expenses of\nsuch\nrepresentatives.\n(2)\nUniversa shall have the right at its own cost and expense and without any cost or expense to USA to send competent representatives to USA to study at reasonable times and in a reasonable manner, the manufacturing methods\nand processes employed by USA in its commercial manufacture of Product. The identity and number of such representatives and the date and duration of each such visit shall be such as USA and Universal may mutually agree to\nbe necessary. During such visits, USA shal permit Universal's representatives to exercise, and shall assist them in exercising, the rights granted to Universal pursuant to this Section 4 and shall permit them to have, and shall assist\nthem in having, such discussions and practical observations as may be necessary with competent representatives of USA relating to the manufacturing methods and processes employed by USA with respect to Deck Process.\nUniversal shall indemnify USA from any liability which might be asserted or claimed against USA arising out of said visits by Universal's representatives, including personal injury to or property damage of such representatives.\nPage 5 of 17\nSection 5. Protection of Industrial Property\n(1)\nUniversal expressly acknowledges and agrees that, except in the Market Zones and to the extent of the grant set forth in Section 2, Paragraph (1), it does not acquire under this Agreement any rights in or to the use of the\nTrademarks or Licensed Patents or the Intellectual Property or the Deck Process used or adopted in connection with Product or otherwise by USA anywhere in the world.\n(2)\nUniversal further undertakes that it may not at any time contest anywhere in the world ownership of any of the Trademarks Licensed Patents, Intellectual Property or Deck Process rights of USA.\n(3)\nUpon termination of this Agreement, Universal shall promptly deliver free of charge to USA all materials including signs, advertising and catalogs containing the trademarks and tradenames of USA which are in the possession of\nUniversal or its employees and Universal shall desist from making further use of these materials.\nSection 6. Protection and Ownership of Intellectual Property\n(1)\nAll Intellectual Property furnished to Universal hereunder remains the property of USA.\n(2)\nUniversal agrees to keep all Intellectua Property confidential. Universal may not, without written consent from USA, communicate or allow to be communicated any Intellectua Property to anyone except to its wholly owned\nsubsidiaries, officers, employees, agents or subcontractors and only to such extent as may be necessary for the proper manufacture and sale of the Product in accordance with this Agreement. Universal agrees to take all necessary\nprecautions in a manner acceptable to USA to keep said Intellectual Property and the Deck Process secret and to restrict its use as aforesaid.\n(3)\nUniversal agrees that any reproduction, notes, summaries or similar documents relating to the Intellectual Property supplied hereunder immediately upon their creation become and remain the property of USA. Universal shall be\nresponsible for ensuring from persons to whom authorized disclosure of Intellectual Property is made that such persons shall treat all Intellectual Property supplied hereunder as confidential and to restrict its use in the manner\nprovided in this section.\n(4)\nAll copies of any information delivered to Universal relating to USA pursuant hereto shall, upon the written request of USA, be promptly retured to USA in the event that this Agreement is terminated. Universal agrees that\nUSA's confidential information shall not be used or disclosed, unless such disclosure is required by law, by Universal for any purpose other than as contemplated by this Agreement. For purposes of this Section, "confidential"\ninformation does not include information which: (a) is or becomes generally available to the public other than as a result of disclosure which is in violation of this Section; (b) was known by Universal on a non-confidential basis\nprior to the disclosure thereof; or (c) becomes available to Universal on a non-confidential basis from a third party who is not known by Universal to be bound by a confidentiality agreement with USA, or is not otherwise\nprohibited from transmitting the information to Universal.\n(5)\nAll copies of any information delivered to USA relating to Universal pursuant hereto shall, upon the written request of Universal, be promptly retumed to Universal in the event that this Agreement is terminated. USA agrees that\nUniversal's confidential information shall not be used or disclosed unless such disclosure is required by law, by USA for any purpose other than as contemplated by this Agreement For purposes of this Section, "confidential"\ninformation does not include information which: (a) is or becomes generally available to the public other than as a result of disclosure which is in violation of this Section; (b) was known by USA on a non-confidential basis prior\nto the disclosure thereof; or (c) becomes available to USA on a non-confidential basis from a third party who is not known by USA to be bound by a confidentiality agreement with Universal, or is not otherwise prohibited from\ntransmitting the information to USA.\nPage 6 of 17\n(6)\nIt is understood by and between the parties hereto that the foregoing covenants are essential elements to the relationship between the parties, The parties agree that an award of damages alone for breach of this provision would be\ninadequate protection for the other party, as the injury would be irreparable, and therefore that equitable or injunctive relief is appropriate as well.\nSection 7. Quality Control, Trademark Use and Goodwil\n(1)\nUniversal shall report promptly to USA any changes in the design, specifications, material or similar characteristics of the Product, or any of them.\n(2)\nUniversal shall maintain the highest standards of quality and workmanship in its manufacture of Product\n(3)\nUniversal shall permi the duly authorized representatives of USA to inspect during normal working hours the plant of Universal, the process of manufacture of the Product, and any Product manufactured by Universal and cause\nto\nbe inspected by them the plant of any contract manufacturer producing the Product or any part thereof.\n(4)\nSo long as Universal is licensed under Section 2 hereof, Universal agrees that a plate shal be affixed to each such Product on an outward facing post or rail or otherwise in a place to be designated by USA, and which shall\nconspicuously and permanently display the mark "Designer Decks@" followed by the patent numbers of the Licensed Patents.\n(5)\nUniversal hereby acknowledges that the Trademarks are lawful trademarks and that they are the sole and exclusive property of USA. Universal agrees that it will not at any time during the term of this Agreement, or thereafter,\nbecome a party, directly or indirectly, in any country, to the contesting of, or the impairing of, the validity, goodwill rvalue of the Trademarks or any applications or registrations governing the Trademarks, or of USA's title\nto\nthe Trademarks. Universal agrees that it will provide written notice to USA if it leams of any third-party contesting of the validity, goodwill or value of the Trademarks or any applications or registrations governing the\nTrademarks, or of USA's title to the Trademarks. Universal acknowledges that it shall have only those rights to use the Trademarks which are provided for under the terms of this Agreement. Universal will not directly or\nindirectly obtain or attempt to obtain in any country during the continuance of this Agreement or at any time thereafter, any right, title or interest by registration copyright or otherwise in or to any trademarks trade names,\ninsignia or designation, or combination thereof, used or owned by USA in any part of the world except with the written consent of USA.\n(6)\nImmediately upon termination of this Agreement or of Universal's license under Section 2 hereof for any reason, Universal will discontinue use and/or display in any manner whatsoever of the Trademarks and will not\nsubsequently adopt and/or use any trademark, service mark trade name or the like, which would be likely to cause confusion with the Trademarks.\nSection 8. License Fees\nUniversal shall pay to USA alicense fee of One Hundred Fifty Thousand Dollars ($150,000.00) upon the Effective Date.\nSection 9. Royalty Fees\nUniversal shall pay to USA a royalty fee of Fifty Dollars ($50.00) (the "Threshold Royalty Fee") for each and every deck sold by Universal, regardless of installation of said deck, under the Universal SF&I, so long as the deck is partially\nor completely elevated above ground, but regardless of whether the deck is a pre-fabricated modular deck or not. Universal further guaranties as follows:\n(1)\nFor the second Annual Y ear, in those Market Zones determined by the parties to have a 12-month selling season (the "12-Month Market Zones"), the Threshold Royalty Fee shall be no less than an amount equa to 12.5 decks\nper\nHome Depot Store per 12. -Month Market Zone. Exhibit A, attached hereto and made a part hereof, sets forth the agreed upon 2-Month Market Zones.\nPage 7 of 17\n(2) For the second Annual Y ear, in those Market Zones determined by the parties to have a 9-month selling season (the "9-Month Market Zones"), the Threshold Royalty Fee shall be no less than an amount equal to 8.25 decks per\nHome Depot Store, per 9-Month Market Zone. Exhibit. A sets forth the agreed upon 9-Month Market Zones.\n(3)\nFor the third Annual Y ear and each Annual Y ear thereafter, in the 12. Month Market Zones, the Threshold Royalty Fee shall be no less than an amount equal to 25 decks per Home Depot Store, per 12-Month Market Zone.\n(4)\nFor the third Annual Y ear and each Annual Y ear thereafter, in the 9-Month Market Zones, the Threshold Royalty Fee shall be no less than an amount equal to 17 decks per Home Depot Store, per 9-Month Market Zone.\n(5)\nThere shall be no guaranteed minimum royalty fees in any Market Zone determined by the parties to have less than a 9-month selling season (the "Short Market Zones") nor in any Market Zone determined by the parties to not be\nconducive to the sale of prefabricated modular decking (the "No Sale Market Zones") Any decks sold in either the Short Market Zones or the No Sale Market Zones shall nonetheless be subject to the Threshold Royalty Fees.\nExhibit A sets forth the agreed upon Short Market Zones and the No Sale Market Zones.\n(6)\nThe total of Threshold Royalty Fees paid during an Annual Y ear shall be credited against the total guaranteed minimum royalty fees required for that same Annual Year.\n(7)\nUniversal shall notify USA in writing within 30 days of the grant of any new Market Zone under the Universal SF&I, which new Market Zone shall automatically become subject to this Agreement. Universal's notification to\nUSA shall also state the "classification" into which the new Market Zone shall be placed (the 12-Month Market Zones, 9-Month Market Zones, etc. ) which classification USA shall have 15 days to object to in writing If USA\ndoes not object to the proposed classification, Exhibit A to this Agreement shall be deemed to be amended by Universal's notification as applicable to reflect the new Market Zone. If USA does object to the proposed classification\nby Universal, the parties agree to work in good faith to resolve the classification dispute within 10 business days of USA's objection or submit the matter to the dispute resolution procedures set forth in Section 25.\n(8)\nFor any new Market Zone granted to Universal following the Effective Date, and which classification the parties agree to, the timing schedule for the guaranteed minimum royalty fees set forth in this Section wil begin to run as of\nthe date of grant of the new Market Zone to Universal.\n(9)\nThe guaranteed minimum royalty fees described in this Section shall remain in full force and effect so long as Universal continues any utilization of the Intellectual Property.\n(10)\nAl payments described in this Section are to be gross payments and shall be made without deduction, other than such tax or other amount that Universal is required to deduct or withhold by law, and in regard to any such\ndeduction Universal shall use all reasonable endeavors to assist USA to claim recovery or exemption under any double taxation or similar agreement, and evidence as to the payment of any such tax or sum withheld shall be\nprovided by Universal to USA.\nPage 8 of 17\nSection 10. Accounting for Fees and Payment\n(1)\nThreshold Royalty Fees shall be calculated on a quarterly basis based on a calendar year, and each quarter' royalty fees shall be paid within 30 days after the end of that quarter. Guaranteed minimum royalty fees, if applicable,\nshall be calculated and paid within 30 days after the close of each applicable Annual Year.\n(2)\nUniversal shall pay USA's invoices for any representative services under Section 4 within thirty (30) days after the date of the invoice.\n(3)\nUniversal shall pay USA interest at the rate of 1.5 percen per month from the due date on any payment due hereunder not received by USA on the due date.\n(4)\nUnless otherwise directed by USA in writing, payments shall be made to USA by wire to a bank in the United States designated by USA in writing in United States dollars.\n(5)\nUniversal shall at all times during the continuance of this Agreement keep at its usual place of business complete sales records and make true and correct entries therein at the earliest opportunity for the purpose of showing the\nquantity and selling prices of each distinct Product sold by it directly or indirectly per Market Zone and Home Depot Store. USA shall have the right at any reasonable time, by its authorized representatives, to examine said sales\nrecords for the purpose of and to the extent necessary for verifying the accuracy of Universal's performance under this Agreement.\nSection 11. Opt-Out Option and Alternative Rights of Use\n(1)\nNotwithstanding anything to the contrary contained herein, Universal may choose to permanently opt out of any Market Zone existing as at the Effective Date or granted following the Effective Date ("Opt Out Zones"). Exhibit A\nsets forth the agreed upon Opt Out Zones as of the Effective Date.\n(2)\nUniversa shall notify USA of any new Opt Out Zones within 30 days of Universal's election but in any event at least 15 days prior to its cessation of activity in Market Zone under this Agreement.\n(3)\nUniversal shall not have any rights to the Intellectual Property or the Deck Process, nor any Threshold Royalty Fee obligations, in any Market Zone which it has elected to opt ou of.\n(4)\nShould Universal cease its relationship with Home Depot in any Market Zone, Universal shall then have 30 days to notify USA of its election to continue its use of the Intellectual Property and the Deck Process in that Market\nZone, on a non-exclusive basis, subject to the Threshold Royalty Fee obligation of this Agreement but the Threshold Royalty Fee shal be calculated on all decks thereafter sold by Universal in such Market Zone as opposed to\ndecks sold in Home Depot Stores in such Market Zone. Universal guarantees that the annua Threshold Royalty Fee in any such Market Zone pro rated for the first year as applicable, shall be no less than an amount equal to 25\ndecks per Home Depot Store existing in that Market Zone.\nSection 12. First Refusal\nUniversal is hereby granted a right of first refusal to any new territory in which USA seeks to license its Intellectual Property for the Deck Process. This right shall expire twelve months from the Effective Date USA shall notify Universal\nof any new territory USA seeks to license. The notice shall include a statement of the time within which Universal must act to exercise it's right of first refusal. To exercise the right of first refusal, Universal shall within 15 days of USA\nnotification give notice to USA of Universal's commitment to include such new territory under this Agreement Any new territory so included shall be subject to Threshold Royalty Fees provided for in Section 9 as well as the guaranteed\nminimum royalty fees of Section 9. The timeline for such guaranteed minimum royalty fees will begin to run as of the date of Universal's election to exercise this right of first refusal. This right of first refusal shall not apply to any Market\nZone which Universal has opted out of in accordance with Section 11.\nPage 9 of 17\nSection 13. Indemnification and Release\n(1)\nUniversal shall indemnify USA and hold it harmless against and from any liability, claims, damages, and or expenses whatsoever in any way arising directly or indirectly out of Universal's manufacture, distribution, marketing,\nservice testing, sale, installation or use of the Product or the Deck Process and Universal hereby further releases USA from any such liability, claims, damages or expenses.\n(2)\nNothing contained in this Agreement shall be construed as:\n(a) Requiring the filing by USA of any trademark or patent application, the securing or maintaining of any trademark or patent in force after the Effective Date. Notwithstanding the forgoing, USA shal take such steps as it deems\nreasonable to protect its Trademarks and Licensed Patents;\n(b) A warranty or representation by USA as to the validity or scope of any patent;\n(c) A warranty or representation by USA that any manufacture, sale, or use hereunder will be free from infringement of patents or trademarks owned by others than USA provided, however, USA shall cooperate with and render\nreasonable assistance to Universal in the defense of any patent or trademark infringement action on terms mutually acceptable to the parties;\n(d) Conferring by implication, estoppel or otherwise upon Universal any license or other right under any patent or trademark except rights expressly granted hereunder to Universal; or\n(e) Other than as specifically set forth in Section 2(5), a warranty by USA as to the accuracy, sufficiency or suitability for use of the Intellectua Property or Deck Process licensed and made available hereunder or for the quality or\nquantity of any Product or processes made by the use thereof, and USA assumes no responsibility or liability, including liability for consequential damages or loss of profit which might arise out of the use by Universal of said\ninformation.\nSection 14 Improvements\n(1)\nAny inventions, improvements, modifications, patents or patent applications made or acquired by Universal applicable to the Product shall be immediately and fully disclosed by Universal to USA. USA shall have prior approval,\nwhich approval must be made in writing, to any changes in designs, techniques, procedures, Product and Product parts. Universal shall grant and hereby grants to USA a complete, worldwide, unrestricted irrevocable right and\nlicense, together with the right to sublicense others, under all of said inventions improvements, patents and patent applications for the full term of said patents. USA s license shall be non-exclusive.\n(2)\nIn the event Universal does not wish to file patent applications on any of such inventions and improvements, it will so notify USA prior to any public divulging thereof and upon the request of USA, execute and procure the\nexecution of any and all patent applications and all papers necessary or desirable to enable USA to protect such inventions or improvements and whatever assignments or transfer instruments are necessary or required to effectuate\nownership of the rights in USA in any and all countries of the world which USA may elect. Any expense incurred in the prosecution of such patent applications by USA shall be bome by USA It is agreed that Universal shall have\nthe right to use in the Market Zones such patent or patents non-exclusively and free of charge for the full term of said patent or patents.\nSection 15. United States Government Requlations\n(1)\nUniversal agrees that it will not without the prior written consent of USA sell lease or make available any of the Product or disclose or sublicense any of the Intellectual Property or Deck\nPage 10 of 17\nProcess to any person, or any govemment or agency of any country, if such sale, lease, shipment, disclosure or sublicense would be regarded by the United States Govemment as a breach of the Foreign Assets Control Regulations\nor the Transaction Control Regulations.\n(2)\nIt is further understood that Universal will obtain from any customer or subcontractor or supplier, if so requested by USA, a declaration that none of the Product or Intellectual Property or Deck Process will be sold, conveyed,\nleased or revealed to any person or movement agency against the provisions of the applicable United States laws and regulations and the grant conveyed herein.\nSection 16. Duration and Termination\n(1)\nThis Agreement shall terminate upon the Expiration Date unless otherwise agreed to by the parties or sooner terminated as herein provided\n(2)\nThis Agreement wil be deemed to have terminated in the event Universal opts out of each and every Market Zone in accordance with the terms of Section 11.\n(3)\nThis Agreement will be deemed to have terminated in the event Universal is substantially prevented from utilizing the Deck Process or the Intellectual Property due to infringement or similar claims against the USA Licensed\nPatents or Trademarks.\nSection 17. Defaults and Waivers\nIn the event either party shall be in default by failing to observe or fulfill any condition or representation of this Agreement (the "Defaulting Party"), the other party (the "Non Defaulting Party") shall have the right to serve upon such\nDefaulting Party a written notice specifying such default, requesting the remedying thereof within thirty (30) days from the date of said notice. If such default is not satisfactorily remedied within said period, the Non Defaulting Party may\nserve the Defaulting Party with a written notice of immediate termination of this Agreement upon which all rights and licenses, except those which are irrevocable or which may have accrued hereunder at the date of such notice, shall be\ncancelled, and each party will execute whatever documents may be necessary to retum the rights or property of the other party which may have been acquired hereunder. The Non Defaulting Party may choose to submit the issue to the\ndispute resolution procedures of Section 25, rather than terminating this Agreement. No waiver of any of the terms and conditions of this Agreement shall be binding or effectual for any purpose unless expressed in writing and\nsigned\nby\nthe party hereto giving the same, and any such waiver shall be effective only in the specific instance and for the purpose given. No failure or delay on the part of either party hereto in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise of any right power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.\nSection 18. Insolvency or Change in Control\n(1)\nIn the event that Universal shal be either deemed insolvent, make an assignment for the benefit of a creditor, or be legally obliged to cease to trade or to wind-up its affairs and go into liquidation, USA shall be entitled to give\nwritten notice terminating this Agreement forthwith without prejudice to the rights of either USA or Universal which may have accrued hereunder at the date of such termination\n(2)\nUniversal shall, in the event that the effective control of Universal passes from the hands of the persons, firms or corporations in whose hands it is at the date of this Agreement, inform USA in writing forthwith of any such change\nin\ncontrol. Should such change in control pass control into the hands of some party which USA in its reasonable judgment considers would no be commercially or otherwise favorably or impartially disposed towards the business\ninterest of USA (including the continued exploitation of sales of the Product under this Agreement), USA shall be entitled by notice\nPage 11 of 17\nin writing to terminate this Agreement forthwith without prejudice to rights already accrued hereunder.\nSection 19. Relationships\nIt is understood that in giving effect to this A greement, Universal shall not be a partner, agent, franchisee or employee of USA for any purpose and that its relationship to USA shall be that of an independent contractor. Universal shal not\nhave the right to enter into contracts, nor incur expenses or liabilities on behalf of USA.\nSection 20 Force Majeure\nNeither party shall be liable for failure to perform its part of this Agreement when the failure is due to causes beyond its reasonable control such as, but not limited to, fire, flood, strikes labor troubles or other industrial disturbances,\ninevitable accidents, war (declared or undeclared), embargoes, blockades legal restrictions, riots, insurrections or governmental regulations\nSection 21. Effect of Termination\nUpon termination or expiration of this Agreement, Universal promises:\n(a) To cease all manufacture and sale of the Product;\n(b) To cease the use of all Intellectual Property, the Deck Process and the Licensed Patents;\n(c) To take all action necessary (i) to transfer to USA or (at USA'S option) to cancel any and all rights Universal may have to use the Intellectual Property, Deck Process and Licensed Patents and (ii) to provide USA with suitable evidence\nof such cancellations if USA exercises its option to demand them;\n(d)\nTo retum to USA all documents (including but not limited to any reproductions, notes or summaries) models and other materials relating to the Intellectual Property Deck Process and Licensed Patents;\n(e)\nTo not withhold any moneys accrued, due and payable by Universal to USA hereunder, on the ground of a dispute arising out of or in relation to this Agreement and as et-off off against any claim for damages sought to be put forward\nby\nUniversal; and\nSection 22 Nonassignability\nThis Agreement and each and every covenant, term and condition herein is binding upon and inures to the benefit of the parties hereto and their respective successors, but neither this Agreement nor any rights hereunder may be assigned\nor sublicensed, directly or indirectly, voluntarily or by operation of law, by Universal without first receiving the prior written consent of USA. Notwithstanding the forgoing Universal shall have the right, subject to the consent of USA\nwhich consent shal not be unreasonably withheld, to sublicense its rights hereunder subject to terms and conditions customary for sublicensing agreements, all to be negotiated in good faith between the parties and set forth in an\nagreed-upon sublicensing agreement by and between Universal and its intended sublicensee, to which USA shall be a third-party beneficiary. Under no event shall any sublicense agreement release Universal from its obligations and\nresponsibilities set forth in this Agreement USA shall in no event be required to consent to any sublicense agreement where, in the opinion of USA'S counsel, such agreement could be deemed to create a franchise relationship for USA.\nPage 12 of 17\nSection 23. Notices and Payments\nUntil further notice, to be legally effective any payment or notice which the parties are required or permitted to give to each other pursuant to any of the provisions of this Agreement shall be sent by certified and registered airmail or by\novernight or second day delivery via an intemationally recognized carrier such as Federal Express or UPS to the other party at the following address set after its name:\nUSA Deck, Inc.\nUniversal Forest Product, Inc.\n1041 Cannons Court\n2801 E. Beltline N.E.\nWoodbridge, Virginia 22191-1434\nGrand Rapids, Michigan 49525\nAttn: Daniel L. Betts, President\nAttn: Kent Bathurst, V.P.\nThe effective date of any such notice shall be two days following date of mailing.\nSection 24 Restrictive Covenants\nUpon the Effective Date and for a period of two (2) years following the termination of this Agreement for any reason, Universal (for itself and any affiliate or subsidiary) shall not directly or indirectly: invest in, own, render consulting\nservices to, or operate any entity that engages in the manufacture, sale or installation of Product. Notwithstanding the foregoing, this non-competition restriction shall run for a period of five (5) years in the USA Zones and any other state\nor\ngeographical area in which USA is operating in directly or through a licensee (other than through Universal) as of the date of termination of this Agreement for any reason. Furthermore, upon the Effective Date and for a period of five\n(5) years following the termination of this Agreement for any reason, Universal (for itself and any affiliate or subsidiary) shall not, and shall cause its affiliates, successors and assigns not to, hire or directly solicit for hire any person then\nan employee of USA It is agreed that the period of time during which Universal is prohibited from engaging in such practices pursuant to this section shall be extended by any length of time during which Universal is in breach of this\nsection. Notwithstanding the foregoing, this Noncompetition clause shall not prohibit any party from owning a one percent (1%) or less interest in any company whose shares are traded on any public securities exchange.\nIt is understood by and between the parties hereto that the foregoing covenants are essential elements to the relationship between the parties. The parties agree that an award of damages alone for breach of this provision would be\ninadequate protection for USA, as the injury would be irreparable, and therefore that equitable or injunctive relief is appropriate as well. In addition, the parties agree that USA shall be entitled to collect its reasonable attomey's fees if\nit\nshould prevail in an action for breach of the covenants of this section.\nSection 25. Dispute Resolution\nThe parties agree that any controversy other than a claim for injunctive relief ("Dispute") arising out of this Agreement shall be resolved in accordance with the following procedures. A Dispute may include, without limitation, any claim\nwith respect to either party's obligations or its performance, failure to perform adequacy of performance or good faith exercise of its rights under the Agreement. The parties shall endeavor in good faith to promptly, reasonably, and\nequitably settle all Disputes on an informal basis in the norma course of business All Disputes which the parties cannot so settle in the normal course of business shall be negotiated and mediated in accordance with this Section.\nEither party (the "initiating party") may commence a negotiation of a Dispute ("Negotiation") by serving on the other party (the "responding party") a written statement of the nature and substance of\nPage 13 of 17\nthe Dispute, a brief summary of its position with respect to the Dispute, its justifications therefor, and its proposal for resolution of the Dispute. Within ten (10) days, the responding party shall prepare and serve on the initiating party\na\nwritten statement of its position in response These position papers may be served in accordance with the notice provisions of this Agreement to the authorized representatives of the parties ("Executives").\nWithin fourteen (14) days of exchanging position papers the parties shall conduct a face-to face or telephonic meeting of the Executives and appropriate members of their respective management teams with knowledge of the matters\nunderlying the Dispute and full authority to resolve the Dispute. If the Executives cannot agree to a resolution of the Dispute within five (5) days thereafter, they may continue discussions or either party may invoke the mediation\nprocedures set forth hereafter by giving notice to the other party.\nEither party may invoke non-binding mediation ("Mediation") upon conclusion of the Negotiation procedures described above by serving a notice of mediation on the other party and proposing a mediator. The other party shall respond\nwithin five (5) business days advising as to whether the proposed mediator is acceptable and, if not, proposing an alternative mediator. If the parties cannot agree within an additional two (2) business days to an acceptable mediator, then\non the second business day after delivery of the other party's response, each party shal concurrently deliver to the other by an ovemight delivery service of general commercial use and acceptance (such as Airbome, UPS, or Federal\nExpress) a list of five proposed mediators in order of preference. The Person ranking highes on the two lists (measured by a total point system of 5 points for the first choice on each list 4 points for the second choice on each list etc.)\nshal be designated the mediator unless such Person refuses the designation in which event the next highest ranking Person shall be designated the mediator. If no Person appears on both lists, or no Person who appears on both\nlists\naccepts the designation and the parties cannot within five (5) additional days agree to a mediator, the parties shall each then designate a Person ("designee") who shall together decide on and confirm appointment of the mediator If the\ndesignees are unable to agree, the designees shall apply to the Center for Public Resources to appoint a mediator in accordance with its Model Procedure for Mediation of Business Disputes as then in effect. The Person so appointed (the\n"Mediator") shall be compensated at an hourly rate (or an altemative compensation arrangement) to be agreed upon between the parties and the Mediator prior to appointment. The parties shall each pay one half the Mediator's fee and\nexpenses.\nEach party shall prepare a written statement of the Dispute and its position, a summary of the prior negotiations, and a final proposal of settlement. Nithin fifteen (15) days of appointment of the Mediator, the parties shall submit such\nstatement to the Mediator, together with such supporting or evidentiary materials or other matter as the parties deem appropriate to the Dispute. Concurrently, the parties shall deliver a copy of all submitted materials to the other party.\nAny further submissions shall be made only with the prior consent of the Mediator and all submissions shall be copies to the other party No "discovery" or other proceeding shall be conducted except as directed by the Mediator The\nMediator may, at his option hold hearings or conduct interviews, discussions, or negotiation sessions with any Person or entity, which he believes to be relevant to the Dispute. The Mediator may in his discretion conduct such interviews\nor discussions unilaterally or with the parties present The Mediation shall be generally conducted in accordance with the Model Procedures for Mediation of Business Disputes as then in effect, or pursuant to such other procedures as\nthe\nparties may agree. The parties shall endeavor to assist the Mediator in concluding the Mediation within a reasonable time, with a target of not later than thirty (30) days after initial submission of materials to the Mediator.\nAt any time, after the parties have engaged in reasonable mediation activity, the Mediator may declare the Mediation to be terminated, and either party may elect to terminate the Mediation at any time by giving notice to the other party\nand\nthe\nMediator, if the Dispute is not resolved within ninety (90) days after the appointment of the Mediator If, upon termination of the Mediation the Dispute remains\nPage 14 of 17\nunresolved, both parties shall reserve all rights to seek a judicial resolution of the Dispute in accordance with applicable law, except as otherwise restricted by this Agreement, and to receive their costs and reasonable attomeys fees in a\nprevailing action The resolution of any Dispute shall not constitute an amendment to the Agreement or a waiver or modification of either party's rights.\nSection 26. Unenforceable Terms\nIn the event any term or provision of this Agreement shall for any reason be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other term or provisions hereof. In such an\nevent, this A greement shall be interpreted and construed as if such term or provision, to the extent the same shall have been held invalid, illegal or unenforceable, had never been contained herein.\nSection 27. Goveming Law and Construction\nThis Agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Virginia and the United States of America Venue for any dispute arising hereunder shall be Prince Williams County, Virginia The\nEnglish language shall control any interpretation of terms This Agreement shall be construed without regard to any presumption or any other rule requiring construction against the party who caused it to have been drafted. The headings\nof sections and subsections of this A greement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof. Vhen the context requires, the gender of all words used\nherein shall include the masculine, feminine and neuter and the number of all words shall include the singular and plural Use of the words "herein", "hereof", "hereto" and the like in this Agreement shall be construed as references to this\nAgreement as a whole and not to any particular Article, Section or provision of this A greement, unless otherwise noted\nSection 28 Other Agreements; Amendments, Miscellaneous\n(1)\nThis Agreement represents the full and complete understanding and agreement of the parties and supersedes and cancels any prior agreements between the parties or their predecessors relating to Product, the Intellectual Property,\nthe Deck Process or otherwise, other than in regard to previously executed agreements of confidentiality or similar restrictive covenants, which shall be interpreted in conduction with this A greement to increase but in no event\nto\nlimit the protections of this Agreement, in order to provide the strongest protection to the party seeking safekeeping of its proprietary and confidentia information This Agreement may be amended or nullified only by a writing\nexecuted by officers of both parties.\n(2)\nExcept as may otherwise be required by law or regulation or by court or administrative agency order, the parties hereto agree that no press release or similar public announcements shall be made with respect to the proposed\ntransactions unless the parties hereto have consented in writing to such disclosure, which consent shall not be unreasonably withheld.\n(3)\nUpon termination or expiration of this Agreement, the terms and conditions of this Agreement which by their reasonable construction are intended to survive termination or expiration of this Agreement shall, in such event, remain\nin effect including but not limited to those pertaining to Universal's covenants representations and warranties to USA.\n(4)\nThis greement may be executed in multiple counterparts, each of which shall be deemed an original but all of which together shal constitute a single instrument. Execution and delivery of this Agreement by exchange of\nfacsimile copies bearing facsimile signature of a party shall constitute a valid and binding execution and delivery of this agreement by such party.\nPage 15 of 17\n(5)\nThe parties did not engage the services of any broker for the procurement of this transaction. Each party hereto shall bear its own costs and expenses (including accounting costs and attorneys' fees), except that each party hereto\nagrees to pay the costs and expenses (including reasonable attorneys' fees and expenses) incurred by the other parties in successfully (a) enforcing any of the terms of this A greement or (b) proving that another party breached any\nof the terms of this Agreement or related documents.\n(6)\nExcept as may otherwise be required by law or regulation or by court or administrative agency order, the parties hereto agree that no press release or similar public statements shall be made with respect to the proposed transactions\nunless the other party has consented to such disclosure, which consent shall not be unreasonably withheld.\nSection 29. Effective Date\nThe Effective Date shall be on or before March 31, 2003, or such other date as mutually agreed to by the parties\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in their corporate names by their duly authorized representatives.\nUSA DECK, INC.\nUNIVERSAL FOREST PRODUCTS, INC.\nBY:\n/s/ Danie L. Betts\nBY: /s/ Matthew J. Missad\nDaner L. Beus, President\nNA AMMEatneW J Mssad\nTITIHExeC, VP\n7DATE:\n3/31/03\nDATF31/03\nPage 16 of 17\nEXHIBIT A\n12-Month Market Zones\n9-Month Market Zones\nShort Market Zones\nNo Sale Market Zones\nOp Out Zones\nPage 17 of 17	Exhibit 10.38\nPROPRIETARY INFORMATION LICENSING AGREEMENT\nBETWEEN\nUSA DECK, INC .\nAND\nUNIVERSAL FOREST PRODUCT, INC .\nSECTION CONTENTS\nPAGE\n(1)\nDefinitions\n3\n(2)\nThe Grant\n4\n(3)\nTransfer\n5\n(4)\nManufacturing Assistance\n5\n(5)\nProtection of Industrial Property\n6\n(6)\nProtection and Ownership of Intellectual Property\n6\n(7)\nQuality Control, Trademark Use and Goodwill\n7\n(8)\nLicense Fees\n7\n(9)\nRoyalty Fees\n7\n(10)\nAccounting for Fees and Payment\n9\n(11)\nOpt-Out Option and Alternative Rights of Use\n9\n(12)\nFirst Refusal\n9\n(13)\nIndemnification and Release\n10\n(14)\nImprovements\n10\n(15)\nUnited States Government Regulations\n10\n(16)\nDuration\n11\n(17)\nDefaults and Waivers\n11\n(18)\nInsolvency or Change in Control\n11\n(19)\nRelationships\n12\n(20)\nForce Majeure\n12\n(21)\nEffect of Termination\n12\n(22)\nNonassignability\n12\n(23)\nNotices and Payments\n13\n(24)\nRestrictive Covenants\n13\n(25)\nDispute Resolution\n13\n(26)\nUnenforceable Terms\n15\n(27)\nGoverning Law and Construction\n15\n(28)\nOther Agreements; Amendments, Miscellaneous\n15\n(29)\nEffective Date\n16\nExhibit A\n17\nPage2of17\nPROPRIETARY INFORMATION LICENSING AGREEMENT\nBETWEEN\nUSA DECK, INC .\nAND\nUNIVERSAL FOREST PRODUCT, INC .\nThis Proprietary Information Licensing Agreement (“Agreement”) is entered into as of the 31st day of March, 2003, by and between USA Deck, Inc., (“USA”), a corporation organized and existing under the laws of Delaware, with\nheadquarters located at 1041 Cannons Court Woodbridge, Virginia 22191-1434 and Universal Forest Product, Inc., (“Universal”) a corporation, organized and existing under the laws of Michigan with headquarters located at 2801 E.\nBeltline N.E. Grand Rapids, Michigan 49525.\nWITNESSETH\nWHEREAS, USA is engaged in the marketing, modular fabrication, modular manufacture, sale design and installation (hereinafter these proprietary processes and activities are singularly and jointly referred to as the “Deck Process”) of\nprefabricated modular decks and decking products for the commercial and residential home remodeling industry; and\nWHEREAS, USA has developed a substantial body of Intellectual Property necessary and useful in the Deck Process and which constitutes a valuable asset of USA;\nWHEREAS, USA enjoys a special and high reputation in this field of industry with respect to its name and also with respect to trademarks identifying and distinguishing its products and the Deck Process; and\nWHEREAS, USA owns or has the right to grant licenses with respect to its Intellectual Property relating to the Deck Process; and\nWHEREAS, Universal desires to obtain from USA a limited right to utilize the Deck Process using USA’s Intellectual Property;\nNOW, THEREFORE, in consideration of their mutual promises and undertakings hereinafter set forth, the parties intending to be legally bound hereby, do covenant and agree that the above recitations shall be part of this agreement, and\nhereby further agree as follows:\nSection 1. Definitions\nFor the purpose of this Agreement:\n(1)\n“Annual Year” means a period which continues for twelve consecutive months. The first Annual Year of this Agreement begins on the Effective Date and ends twelve consecutive months thereafter, at which time, and as\napplicable, the next Annual Year begins.\n(2)\n“Effective Date” means the date on which this Agreement is executed by the parties hereto. If execution takes place on different dates, the later date shall be the Effective Date.\n(3)\n“Expiration Date” is the date eighty-four months from the Effective Date.\n(4)\n“Home Depot Store” means any “Home Depot” retail location within a Market Zone.\n(5)\n“Home Depot” means The Home Depot U.S.A ., Inc.\nPage3of17\n(6)\n“Intellectual Property” means the Deck Process and all related information which is not general common knowledge and shall include, but shall not be limited to, installation methods, manufacturing methods, manufacturing set-up\nand guidance, deck design principles, familiarization with ancillary and accessory items, timber specifications, site surveys, costing methods, sales methods, advertising and lead generation methods, designs, drawings, CAD\nblueprint libraries, specifications, test data, charts, graphs, operation sheets, bills of materials and other technical information, quality studies, prices, catalogues, advertising, production data, specialized know-how, skill, and other\napplication information, relating to the marketing, manufacture, use, and sale of Product which is owned or controlled by USA, as now existing or as hereafter developed or modified by either USA or Universal.\n(7)\n“Market Zone(s)” means those geographical areas designated and granted to Universal in the Universal SF&I by Home Depot, as such geographical areas may change from time to time by Home Depot and / or by amendment to\nthe Universal SF&I. Notwithstanding the foregoing, Market Zones shall not include the USA Zones.\n(8)\n“Product” means prefabricated modular decks and decking accessories, including prefabricated modular deck railings and prefabricated modular deck stairs.\n(9)\n“Term of this Agreement” means the period between the Effective Date hereof and the Expiration Date.\n(10) “Universal SF&I” means Universal’s SF&I Program Installer Agreement with Home Depot in existence as of the Effective Date, as such may be amended from time to time.\n(11) “USA Zones” means the states of Virginia, Maryland, Eastern Pennsylvania, Delaware, the lower metropolitan New York City region including Staten Island, and the District of Columbia. This term also includes the “Mid\nAtlantic” territory as defined by Home Depot and the territories represented by Home Depot’s defined market zones 43, 176, 10, 20, 15, 34, 39, 65, 66, 68, 86, 93, 111, 112, 116, 177, 191, 202, 260, and 272 (“USA Sub-Zones”).\nNotwithstanding the forgoing, the USA Sub-Zones shall not include any market zone in which USA is not directly engaging in business.\n(12) “Trademarks” means the following trademark(s):\nCountry of Registration\nRegistration Number\nMark\nUnited States\n1,489 ,348\nDesigner Decks\nUnited States\n1,519 ,195\nDesigner Decks\nUnited States\n1,490 ,192\nDesigner Decks (Stylized “D ”)\nUnited States\n1,410 ,546\nDesigner Decks (Design)\nUnited States\n2,005 ,787\nInvisanail\n(13) “Licensed Patents” means the following patent(s):\nCountry of Patent Rights\nPatent Number\nTitle\nUnited States\n4,622 ,792\nModular Deck Structure And Method For Constructing Same\nUnited States\n5,664 ,381\nConstruction Nailing Method And Structures\nSection 2. The Grant\n(1)\nFor the duration of this Agreement and upon the conditions hereinafter more specifically set forth, USA hereby grants to Universal the exclusive right to utilize the Deck Process in conjunction with the Intellectual Property for the\nsale, furnishing and installation of Product in the Market Zones.\nPage4of7\n(2)\nFor the duration of this Agreement USA hereby grants to Universal the exclusive right to use the Trademarks in the Market Zones on the Product manufactured and sold by Universal under the license granted in Paragraph (1) of\nthis Section (2) on such Product, subject to the terms and conditions hereinafter set forth.\n(3)\nFor the duration of this Agreement USA hereby grants to Universal the exclusive right in the Market Zones to utilize the Deck Process to fabricate and manufacture the Product under the Licensed Patents in the Market Zones\nunder the license granted in Paragraph (1) of this Section (2) on such Product, subject to the terms and conditions hereinafter set forth.\n(4)\nExcept as otherwise set forth herein, Universal shall have no right (i) to permit or subcontract others to use the Deck Process or the Intellectual Property for Universal; (ii) to disclose to or permit or sublicense others to use the\nDeck Process or the Intellectual Property; (iii) to use the Intellectual Property or the Deck Process in connection with the manufacture, use or sale of equipment or goods manufactured by Universal other than Product, except for\nincidental use; or (iv) to use the Intellectual Property or the Deck Process outside of the Market Zones.\n(5)\nUSA represents that it has the complete and unrestricted right to grant to Universal the rights in the Intellectual Property as set forth in this Agreement, and that the modular decking system specifications and design methods which\nare part of the Intellectual Property are suitable for the construction of residential decks, subject to proper site design, fabrication, installation and other job-specific related variables. USA further represents it has the authority and\nability to grant to Universal the utilizations to the Trademarks and Licensed Patents as set forth herein.\nSection 3. Transfer\nUSA will furnish to Universal, with the least possible delay following the Effective Date, all Intellectual Property which USA may have on hand in documentary form on the Effective Date relating to Product. Nothing contained herein\nshall be construed as requiring USA to perform any act in conflict with the laws of the United States of America pertaining to the export of technical information or data.\nSection 4. Manufacturing Assistance\n(1)\nDuring the term of this Agreement, at the written request of Universal, USA will send competent representatives to visit Universal’s manufacturing plant or plants for the purpose of assisting and advising Universal in connection\nwith the Deck Process. The identity and number of such representatives and the date and duration of each such visit shall be such as USA and Universal may mutually agree to be necessary. USA shall not be required to provide\nmore than twenty days of personnel support per Annual Year. Universal shall pay a daily assistance fee of $600.00 per person for such advisory services, plus all reasonable traveling, living and other costs and expenses of such\nrepresentatives.\n(2)\nUniversal shall have the right, at its own cost and expense and without any cost or expense to USA, to send competent representatives to USA to study at reasonable times and in a reasonable manner, the manufacturing methods\nand processes employed by USA in its commercial manufacture of Product. The identity and number of such representatives and the date and duration of each such visit shall be such as USA and Universal may mutually agree to\nbe necessary. During such visits, USA shall permit Universal’s representatives to exercise, and shall assist them in exercising, the rights granted to Universal pursuant to this Section 4 and shall permit them to have, and shall assist\nthem in having, such discussions and practical observations as may be necessary with competent representatives of USA relating to the manufacturing methods and processes employed by USA with respect to Deck Process.\nUniversal shall indemnify USA from any liability which might be asserted or claimed against USA arising out of said visits by Universal’s representatives, including personal injury to or property damage of such representatives.\nPage5of17\nSection 5. Protection of Industrial Property\n(1)\nUniversal expressly acknowledges and agrees that, except in the Market Zones and to the extent of the grant set forth in Section 2, Paragraph (1), it does not acquire under this Agreement any rights in or to the use of the\nTrademarks or Licensed Patents or the Intellectual Property or the Deck Process used or adopted in connection with Product or otherwise by USA anywhere in the world.\n(2)\nUniversal further undertakes that it may not at any time contest anywhere in the world ownership of any of the Trademarks, Licensed Patents, Intellectual Property or Deck Process rights of USA.\n(3)\nUpon termination of this Agreement, Universal shall promptly deliver free of charge to USA all materials, including signs, advertising and catalogs containing the trademarks and tradenames of USA, which are in the possession of\nUniversal or its employees and Universal shall desist from making further use of these materials.\nSection 6. Protection and Ownership of Intellectual Property\n(1)\nAll Intellectual Property furnished to Universal hereunder remains the property of USA.\n(2)\nUniversal agrees to keep all Intellectual Property confidential. Universal may not, without written consent from USA, communicate or allow to be communicated any Intellectual Property to anyone except to its wholly owned\nsubsidiaries, officers, employees, agents or subcontractors and only to such extent as may be necessary for the proper manufacture and sale of the Product in accordance with this Agreement. Universal agrees to take all necessary\nprecautions in a manner acceptable to USA to keep said Intellectual Property and the Deck Process secret and to restrict its use as aforesaid.\n(3)\nUniversal agrees that any reproduction, notes, summaries or similar documents relating to the Intellectual Property supplied hereunder immediately upon their creation become and remain the property of USA. Universal shall be\nresponsible for ensuring from persons to whom authorized disclosure of Intellectual Property is made that such persons shall treat all Intellectual Property supplied hereunder as confidential and to restrict its use in the manner\nprovided in this section.\n(4)\nAll copies of any information delivered to Universal relating to USA pursuant hereto shall, upon the written request of USA, be promptly returned to USA in the event that this Agreement is terminated. Universal agrees that\nUSA’s confidential information shall not be used or disclosed, unless such disclosure is required by law, by Universal for any purpose other than as contemplated by this Agreement. For purposes of this Section, “confidential”\ninformation does not include information which: (a) is or becomes generally available to the public other than as a result of disclosure which is in violation of this Section; (b) was known by Universal on a non-confidential basis\nprior to the disclosure thereof; or (c) becomes available to Universal on a non-confidential basis from a third party who is not known by Universal to be bound by a confidentiality agreement with USA, or is not otherwise\nprohibited from transmitting the information to Universal.\n(5)\nAll copies of any information delivered to USA relating to Universal pursuant hereto shall, upon the written request of Universal, be promptly returned to Universal in the event that this Agreement is terminated. USA agrees that\nUniversal’s confidential information shall not be used or disclosed, unless such disclosure is required by law, by USA for any purpose other than as contemplated by this Agreement. For purposes of this Section, “confidential”\ninformation does not include information which: (a) is or becomes generally available to the public other than as a result of disclosure which is in violation of this Section; (b) was known by USA on a non-confidential basis prior\nto the disclosure thereof; or (c) becomes available to USA on a non-confidential basis from a third party who is not known by USA to be bound by a confidentiality agreement with Universal, or is not otherwise prohibited from\ntransmitting the information to USA.\nPage6of17\n(6)\nIt is understood by and between the parties hereto that the foregoing covenants are essential elements to the relationship between the parties, The parties agree that an award of damages alone for breach of this provision would be\ninadequate protection for the other party, as the injury would be irreparable, and therefore that equitable or injunctive relief is appropriate as well.\nSection 7. Quality Control, Trademark Use and Goodwill\n(1)\nUniversal shall report promptly to USA any changes in the design, specifications, material or similar characteristics of the Product, or any of them.\n(2)\nUniversal shall maintain the highest standards of quality and workmanship in its manufacture of Product.\n(3)\nUniversal shall permit the duly authorized representatives of USA to inspect during normal working hours the plant of Universal, the process of manufacture of the Product, and any Product manufactured by Universal and cause to\nbe inspected by them the plant of any contract manufacturer producing the Product or any part thereof.\n(4)\nSo long as Universal is licensed under Section 2 hereof, Universal agrees that a plate shall be affixed to each such Product on an outward facing post or rail or otherwise in a place to be designated by USA, and which shall\nconspicuously and permanently display the mark “Designer Decks®” followed by the patent numbers of the Licensed Patents.\n(5)\nUniversal hereby acknowledges that the Trademarks are lawful trademarks and that they are the sole and exclusive property of USA. Universal agrees that it will not at any time during the term of this Agreement, or thereafter,\nbecome a party, directly or indirectly, in any country, to the contesting of, or the impairing of, the validity, goodwill or value of the Trademarks or any applications or registrations governing the Trademarks, or of USA’s title to\nthe Trademarks. Universal agrees that it will provide written notice to USA if it learns of any third-party contesting of the validity, goodwill or value of the Trademarks or any applications or registrations governing the\nTrademarks, or of USA’s title to the Trademarks. Universal acknowledges that it shall have only those rights to use the Trademarks which are provided for under the terms of this Agreement. Universal will not directly or\nindirectly obtain or attempt to obtain in any country during the continuance of this Agreement or at any time thereafter, any right, title or interest, by registration, copyright or otherwise in or to any trademarks, trade names,\ninsignia or designation, or combination thereof, used or owned by USA in any part of the world, except with the written consent of USA.\n(6)\nImmediately upon termination of this Agreement or of Universal’s license under Section 2 hereof for any reason, Universal will discontinue use and/or display in any manner whatsoever of the Trademarks and will not\nsubsequently adopt and/or use any trademark, service mark, trade name or the like, which would be likely to cause confusion with the Trademarks.\nSection 8. License Fees\nUniversal shall pay to USA a license fee of One Hundred Fifty Thousand Dollars ($150,000.00) upon the Effective Date.\nSection 9. Royalty Fees\nUniversal shall pay to USA a royalty fee of Fifty Dollars ($50.00) (the “Threshold Royalty Fee”) for each and every deck sold by Universal, regardless of installation of said deck, under the Universal SF&I, so long as the deck is partially\nor completely elevated above ground, but regardless of whether the deck is a pre-fabricated modular deck or not. Universal further guaranties as follows:\n(1)\nFor the second Annual Year, in those Market Zones determined by the parties to have a 12-month selling season (the “12 -Month Market Zones”), the Threshold Royalty Fee shall be no less than an amount equal to 12.5 decks per\nHome Depot Store, per 12-Month Market Zone. Exhibit A, attached hereto and made a part hereof, sets forth the agreed upon 12-Month Market Zones.\nPage7of17\n(2)\nFor the second Annual Year, in those Market Zones determined by the parties to have a 9-month selling season (the “9-Month Market Zones”), the Threshold Royalty Fee shall be no less than an amount equal to 8.25 decks per\nHome Depot Store, per 9-Month Market Zone. Exhibit A sets forth the agreed upon 9-Month Market Zones.\n(3)\nFor the third Annual Year and each Annual Year thereafter, in the 12-Month Market Zones, the Threshold Royalty Fee shall be no less than an amount equal to 25 decks per Home Depot Store, per 12-Month Market Zone.\n(4)\nFor the third Annual Year and each Annual Year thereafter, in the 9-Month Market Zones, the Threshold Royalty Fee shall be no less than an amount equal to 17 decks per Home Depot Store, per 9-Month Market Zone.\n(5)\nThere shall be no guaranteed minimum royalty fees in any Market Zone determined by the parties to have less than a 9-month selling season (the “Short Market Zones”) nor in any Market Zone determined by the parties to not be\nconducive to the sale of prefabricated modular decking (the “No Sale Market Zones”). Any decks sold in either the Short Market Zones or the No Sale Market Zones shall nonetheless be subject to the Threshold Royalty Fees.\nExhibit A sets forth the agreed upon Short Market Zones and the No Sale Market Zones.\n(6)\nThe total of Threshold Royalty Fees paid during an Annual Year shall be credited against the total guaranteed minimum royalty fees required for that same Annual Year.\n(7)\nUniversal shall notify USA in writing within 30 days of the grant of any new Market Zone under the Universal SF&I, which new Market Zone shall automatically become subject to this Agreement. Universal’s notification to\nUSA shall also state the “classification” into which the new Market Zone shall be placed (the 12-Month Market Zones, 9-Month Market Zones, etc. . ) which classification USA shall have 15 days to object to in writing. If USA\ndoes not object to the proposed classification, Exhibit A to this Agreement shall be deemed to be amended by Universal’s notification as applicable to reflect the new Market Zone. If USA does object to the proposed classification\nby Universal, the parties agree to work in good faith to resolve the classification dispute within 10 business days of USA’s objection or submit the matter to the dispute resolution procedures set forth in Section 25.\n(8)\nFor any new Market Zone granted to Universal following the Effective Date, and which classification the parties agree to, the timing schedule for the guaranteed minimum royalty fees set forth in this Section will begin to run as of\nthe date of grant of the new Market Zone to Universal.\n(9)\nThe guaranteed minimum royalty fees described in this Section shall remain in full force and effect so long as Universal continues any utilization of the Intellectual Property.\n(10) All payments described in this Section are to be gross payments and shall be made without deduction, other than such tax or other amount that Universal is required to deduct or withhold by law, and in regard to any such\ndeduction Universal shall use all reasonable endeavors to assist USA to claim recovery or exemption under any double taxation or similar agreement, and evidence as to the payment of any such tax or sum withheld shall be\nprovided by Universal to USA.\nPage8of17\nSection 10. Accounting for Fees and Payment\n(1)\nThreshold Royalty Fees shall be calculated on a quarterly basis based on a calendar year, and each quarter’s royalty fees shall be paid within 30 days after the end of that quarter. Guaranteed minimum royalty fees, if applicable,\nshall be calculated and paid within 30 days after the close of each applicable Annual Year.\n(2)\nUniversal shall pay USA’s invoices for any representative services under Section 4 within thirty (30) days after the date of the invoice.\n(3)\nUniversal shall pay USA interest at the rate of 1.5 percent per month from the due date on any payment due hereunder not received by USA on the due date.\n(4)\nUnless otherwise directed by USA in writing, payments shall be made to USA by wire to a bank in the United States designated by USA in writing in United States dollars.\n(5)\nUniversal shall at all times during the continuance of this Agreement keep at its usual place of business complete sales records and make true and correct entries therein at the earliest opportunity for the purpose of showing the\nquantity and selling prices of each distinct Product sold by it directly or indirectly per Market Zone and Home Depot Store. USA shall have the right at any reasonable time, by its authorized representatives, to examine said sales\nrecords for the purpose of and to the extent necessary for verifying the accuracy of Universal’s performance under this Agreement.\nSection 11. Opt-Out Option and Alternative Rights of Use\n(1)\nNotwithstanding anything to the contrary contained herein, Universal may choose to permanently opt out of any Market Zone existing as at the Effective Date or granted following the Effective Date (“Opt Out Zones”). Exhibit A\nsets forth the agreed upon Opt Out Zones as of the Effective Date.\n(2)\nUniversal shall notify USA of any new Opt Out Zones within 30 days of Universal’s election, but in any event at least 15 days prior to its cessation of activity in Market Zone under this Agreement.\n(3)\nUniversal shall not have any rights to the Intellectual Property or the Deck Process, nor any Threshold Royalty Fee obligations, in any Market Zone which it has elected to opt out of.\n(4)\nShould Universal cease its relationship with Home Depot in any Market Zone, Universal shall then have 30 days to notify USA of its election to continue its use of the Intellectual Property and the Deck Process in that Market\nZone, on a non-exclusive basis, subject to the Threshold Royalty Fee obligation of this Agreement but the Threshold Royalty Fee shall be calculated on all decks thereafter sold by Universal in such Market Zone as opposed to\ndecks sold in Home Depot Stores in such Market Zone. Universal guarantees that the annual Threshold Royalty Fee in any such Market Zone, pro rated for the first year as applicable, shall be no less than an amount equal to 25\ndecks per Home Depot Store existing in that Market Zone.\nSection 12. First Refusal\nUniversal is hereby granted a right of first refusal to any new territory in which USA seeks to license its Intellectual Property for the Deck Process. This right shall expire twelve months from the Effective Date. USA shall notify Universal\nof any new territory USA seeks to license. The notice shall include a statement of the time within which Universal must act to exercise it’s right of first refusal. To exercise the right of first refusal, Universal shall within 15 days of USA’s\nnotification give notice to USA of Universal’s commitment to include such new territory under this Agreement. Any new territory so included shall be subject to Threshold Royalty Fees provided for in Section 9 as well as the guaranteed\nminimum royalty fees of Section 9. The timeline for such guaranteed minimum royalty fees will begin to run as of the date of Universal’s election to exercise this right of first refusal. This right of first refusal shall not apply to any Market\nZone which Universal has opted out of in accordance with Section 11.\nPage9of17\nSection 13. Indemnification and Release\n(1)\nUniversal shall indemnify USA and hold it harmless against and from any liability, claims, damages, and / or expenses whatsoever in any way arising directly or indirectly out of Universal’s manufacture, distribution, marketing,\nservice, testing, sale, installation or use of the Product or the Deck Process and Universal hereby further releases USA from any such liability, claims, damages or expenses.\n(2)\nNothing contained in this Agreement shall be construed as:\n(a) Requiring the filing by USA of any trademark or patent application, the securing or maintaining of any trademark or patent in force after the Effective Date. Notwithstanding the forgoing, USA shall take such steps as it deems\nreasonable to protect its Trademarks and Licensed Patents;\n(b) A warranty or representation by USA as to the validity or scope of any patent;\n(c) A warranty or representation by USA that any manufacture, sale, or use hereunder will be free from infringement of patents or trademarks owned by others than USA, provided, however, USA shall cooperate with and render\nreasonable assistance to Universal in the defense of any patent or trademark infringement action on terms mutually acceptable to the parties;\n(d) Conferring by implication, estoppel or otherwise upon Universal any license or other right under any patent or trademark except rights expressly granted hereunder to Universal; or\n(e) Other than as specifically set forth in Section 2(5), a warranty by USA as to the accuracy, sufficiency or suitability for use of the Intellectual Property or Deck Process licensed and made available hereunder or for the quality or\nquantity of any Product or processes made by the use thereof, and USA assumes no responsibility or liability, including liability for consequential damages or loss of profit, which might arise out of the use by Universal of said\ninformation.\nSection 14. Improvements\n(1)\nAny inventions, improvements, modifications, patents or patent applications made or acquired by Universal applicable to the Product shall be immediately and fully disclosed by Universal to USA. USA shall have prior approval,\nwhich approval must be made in writing, to any changes in designs, techniques, procedures, Product and Product parts. Universal shall grant and hereby grants to USA a complete, worldwide, unrestricted, irrevocable right and\nlicense, together with the right to sublicense others, under all of said inventions, improvements, patents and patent applications for the full term of said patents. USA’s license shall be non-exclusive.\n(2)\nIn the event Universal does not wish to file patent applications on any of such inventions and improvements, it will so notify USA prior to any public divulging thereof and upon the request of USA, execute and procure the\nexecution of any and all patent applications and all papers necessary or desirable to enable USA to protect such inventions or improvements and whatever assignments or transfer instruments are necessary or required to effectuate\nownership of the rights in USA in any and all countries of the world which USA may elect. Any expense incurred in the prosecution of such patent applications by USA shall be borne by USA. It is agreed that Universal shall have\nthe right to use in the Market Zones such patent or patents non-exclusively and free of charge for the full term of said patent or patents.\nSection 15. United States Government Regulations\n(1)\nUniversal agrees that it will not, without the prior written consent of USA, sell, lease or make available any of the Product, or disclose or sublicense any of the Intellectual Property or Deck\nPage 10 of 17\nProcess to any person, or any government or agency of any country, if such sale, lease, shipment, disclosure or sublicense would be regarded by the United States Government as a breach of the Foreign Assets Control Regulations\nor the Transaction Control Regulations.\n(2)\nIt is further understood that Universal will obtain from any customer or subcontractor or supplier, if so requested by USA, a declaration that none of the Product or Intellectual Property or Deck Process will be sold, conveyed,\nleased or revealed to any person or movement agency against the provisions of the applicable United States laws and regulations and the grant conveyed herein.\nSection 16. Duration and Termination\n(1)\nThis Agreement shall terminate upon the Expiration Date unless otherwise agreed to by the parties or sooner terminated as herein provided.\n(2)\nThis Agreement will be deemed to have terminated in the event Universal opts out of each and every Market Zone in accordance with the terms of Section 11.\n(3)\nThis Agreement will be deemed to have terminated in the event Universal is substantially prevented from utilizing the Deck Process or the Intellectual Property due to infringement or similar claims against the USA Licensed\nPatents or Trademarks.\nSection 17. Defaults and Waivers\nIn the event either party shall be in default by failing to observe or fulfill any condition or representation of this Agreement (the “Defaulting Party”), the other party (the “Non Defaulting Party”) shall have the right to serve upon such\nDefaulting Party a written notice specifying such default, requesting the remedying thereof within thirty (30) days from the date of said notice. If such default is not satisfactorily remedied within said period, the Non Defaulting Party may\nserve the Defaulting Party with a written notice of immediate termination of this Agreement, upon which all rights and licenses, except those which are irrevocable or which may have accrued hereunder at the date of such notice, shall be\ncancelled, and each party will execute whatever documents may be necessary to return the rights or property of the other party which may have been acquired hereunder. The Non Defaulting Party may choose to submit the issue to the\ndispute resolution procedures of Section 25, rather than terminating this Agreement. No waiver of any of the terms and conditions of this Agreement shall be binding or effectual for any purpose unless expressed in writing and signed by\nthe party hereto giving the same, and any such waiver shall be effective only in the specific instance and for the purpose given. No failure or delay on the part of either party hereto in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.\nSection 18. Insolvency or Change in Control\n(1)\nIn the event that Universal shall be either deemed insolvent, make an assignment for the benefit of a creditor, or be legally obliged to cease to trade or to wind-up its affairs and go into liquidation, USA shall be entitled to give\nwritten notice terminating this Agreement forthwith without prejudice to the rights of either USA or Universal which may have accrued hereunder at the date of such termination.\n(2)\nUniversal shall, in the event that the effective control of Universal passes from the hands of the persons, firms or corporations in whose hands it is at the date of this Agreement, inform USA in writing forthwith of any such change\nin control. Should such change in control pass control into the hands of some party which USA in its reasonable judgment considers would not be commercially or otherwise favorably or impartially disposed towards the business\ninterest of USA (including the continued exploitation of sales of the Product under this Agreement), USA shall be entitled by notice\nPage 11 of 17\nin writing to terminate this Agreement forthwith without prejudice to rights already accrued hereunder.\nSection 19. Relationships\nIt is understood that in giving effect to this Agreement, Universal shall not be a partner, agent, franchisee or employee of USA for any purpose and that its relationship to USA shall be that of an independent contractor. Universal shall not\nhave the right to enter into contracts, nor incur expenses or liabilities, on behalf of USA.\nSection 20. Force Majeure\nNeither party shall be liable for failure to perform its part of this Agreement when the failure is due to causes beyond its reasonable control such as, but not limited to, fire, flood, strikes, labor troubles or other industrial disturbances,\ninevitable accidents, war (declared or undeclared), embargoes, blockades, legal restrictions, riots, insurrections or governmental regulations.\nSection 21. Effect of Termination\nUpon termination or expiration of this Agreement, Universal promises:\n(a) To cease all manufacture and sale of the Product;\n(b) To cease the use of all Intellectual Property, the Deck Process and the Licensed Patents;\n(c) To take all action necessary (i) to transfer to USA or (at USA’s option) to cancel any and all rights Universal may have to use the Intellectual Property, Deck Process and Licensed Patents and (ii) to provide USA with suitable evidence\nof such cancellations if USA exercises its option to demand them;\n(d) To return to USA all documents (including but not limited to any reproductions, notes or summaries), models and other materials relating to the Intellectual Property, Deck Process and Licensed Patents;\n(e) To not withhold any moneys accrued, due and payable by Universal to USA hereunder, on the ground of a dispute arising out of or in relation to this Agreement and as set-off against any claim for damages sought to be put forward by\nUniversal; and\nSection 22. Nonassignability\nThis Agreement and each and every covenant, term and condition herein is binding upon and inures to the benefit of the parties hereto and their respective successors, but neither this Agreement nor any rights hereunder may be assigned\nor sublicensed, directly or indirectly, voluntarily or by operation of law, by Universal without first receiving the prior written consent of USA. Notwithstanding the forgoing, Universal shall have the right, subject to the consent of USA,\nwhich consent shall not be unreasonably withheld, to sublicense its rights hereunder subject to terms and conditions customary for sublicensing agreements, all to be negotiated in good faith between the parties and set forth in an\nagreed-upon sublicensing agreement by and between Universal and its intended sublicensee, to which USA shall be a third-party beneficiary. Under no event shall any sublicense agreement release Universal from its obligations and\nresponsibilities set forth in this Agreement. USA shall in no event be required to consent to any sublicense agreement where, in the opinion of USA’s counsel, such agreement could be deemed to create a franchise relationship for USA.\nPage 12 of 17\nSection 23. Notices and Payments\nUntil further notice, to be legally effective any payment or notice which the parties are required or permitted to give to each other pursuant to any of the provisions of this Agreement shall be sent by certified and registered airmail or by\novernight or second day delivery via an internationally recognized carrier such as Federal Express or UPS to the other party at the following address set after its name:\nUSA Deck, Inc.\nUniversal Forest Product, Inc.\n1041 Cannons Court\n2801 E. Beltline N.E .\nWoodbridge, Virginia 22191-1434\nGrand Rapids, Michigan 49525\nAttn: Daniel L. Betts, President\nAttn: Kent Bathurst, V.P.\nThe effective date of any such notice shall be two days following date of mailing.\nSection 24. Restrictive Covenants\nUpon the Effective Date and for a period of two (2) years following the termination of this Agreement for any reason, Universal (for itself and any affiliate or subsidiary) shall not directly or indirectly: invest in, own, render consulting\nservices to, or operate any entity that engages in the manufacture, sale or installation of Product. Notwithstanding the foregoing, this non-competition restriction shall run for a period of five (5) years in the USA Zones and any other state\nor geographical area in which USA is operating in directly or through a licensee (other than through Universal) as of the date of termination of this Agreement for any reason. Furthermore, upon the Effective Date and for a period of five\n(5) years following the termination of this Agreement for any reason, Universal (for itself and any affiliate or subsidiary) shall not, and shall cause its affiliates, successors and assigns not to, hire or directly solicit for hire any person then\nan employee of USA. It is agreed that the period of time during which Universal is prohibited from engaging in such practices pursuant to this section shall be extended by any length of time during which Universal is in breach of this\nsection. Notwithstanding the foregoing, this Noncompetition clause shall not prohibit any party from owning a one percent (1%) or less interest in any company whose shares are traded on any public securities exchange.\nIt is understood by and between the parties hereto that the foregoing covenants are essential elements to the relationship between the parties. The parties agree that an award of damages alone for breach of this provision would be\ninadequate protection for USA, as the injury would be irreparable, and therefore that equitable or injunctive relief is appropriate as well. In addition, the parties agree that USA shall be entitled to collect its reasonable attorney’s fees if it\nshould prevail in an action for breach of the covenants of this section.\nSection 25. Dispute Resolution\nThe parties agree that any controversy other than a claim for injunctive relief (“Dispute”) arising out of this Agreement shall be resolved in accordance with the following procedures. A Dispute may include, without limitation, any claim\nwith respect to either party’s obligations or its performance, failure to perform, adequacy of performance or good faith exercise of its rights under the Agreement. The parties shall endeavor in good faith to promptly, reasonably, and\nequitably settle all Disputes on an informal basis in the normal course of business. All Disputes which the parties cannot so settle in the normal course of business shall be negotiated and mediated in accordance with this Section.\nEither party (the “initiating party”) may commence a negotiation of a Dispute (“Negotiation”) by serving on the other party (the “responding party”) a written statement of the nature and substance of\nPage 13 of 17\nthe Dispute, a brief summary of its position with respect to the Dispute, its justifications therefor, and its proposal for resolution of the Dispute. Within ten (10) days, the responding party shall prepare and serve on the initiating party a\nwritten statement of its position in response. These position papers may be served in accordance with the notice provisions of this Agreement to the authorized representatives of the parties (“Executives”).\nWithin fourteen (14) days of exchanging position papers, the parties shall conduct a face-to-face or telephonic meeting of the Executives and appropriate members of their respective management teams with knowledge of the matters\nunderlying the Dispute and full authority to resolve the Dispute. If the Executives cannot agree to a resolution of the Dispute within five (5) days thereafter, they may continue discussions or either party may invoke the mediation\nprocedures set forth hereafter by giving notice to the other party.\nEither party may invoke non-binding mediation (“Mediation”) upon conclusion of the Negotiation procedures described above by serving a notice of mediation on the other party and proposing a mediator. The other party shall respond\nwithin five (5) business days advising as to whether the proposed mediator is acceptable and, if not, proposing an alternative mediator. If the parties cannot agree within an additional two (2) business days to an acceptable mediator, then\non the second business day after delivery of the other party’s response, each party shall concurrently deliver to the other by an overnight delivery service of general commercial use and acceptance (such as Airborne, UPS, or Federal\nExpress) a list of five proposed mediators in order of preference. The Person ranking highest on the two lists (measured by a total point system of 5 points for the first choice on each list, 4 points for the second choice on each list, etc.)\nshall be designated the mediator unless such Person refuses the designation, in which event the next highest ranking Person shall be designated the mediator. If no Person appears on both lists, or no Person who appears on both lists\naccepts the designation, and the parties cannot within five (5) additional days agree to a mediator, the parties shall each then designate a Person (“designee”) who shall together decide on and confirm appointment of the mediator. If the\ndesignees are unable to agree, the designees shall apply to the Center for Public Resources to appoint a mediator in accordance with its Model Procedure for Mediation of Business Disputes as then in effect. The Person so appointed (the\n“Mediator”) shall be compensated at an hourly rate (or an alternative compensation arrangement) to be agreed upon between the parties and the Mediator prior to appointment. The parties shall each pay one half the Mediator’s fee and\nexpenses.\nEach party shall prepare a written statement of the Dispute and its position, a summary of the prior negotiations, and a final proposal of settlement. Within fifteen (15) days of appointment of the Mediator, the parties shall submit such\nstatement to the Mediator, together with such supporting or evidentiary materials or other matter as the parties deem appropriate to the Dispute. Concurrently, the parties shall deliver a copy of all submitted materials to the other party.\nAny further submissions shall be made only with the prior consent of the Mediator and all submissions shall be copies to the other party. No “discovery” or other proceeding shall be conducted except as directed by the Mediator. The\nMediator may, at his option, hold hearings or conduct interviews, discussions, or negotiation sessions with any Person or entity, which he believes to be relevant to the Dispute. The Mediator may in his discretion conduct such interviews\nor discussions unilaterally or with the parties present. The Mediation shall be generally conducted in accordance with the Model Procedures for Mediation of Business Disputes as then in effect, or pursuant to such other procedures as the\nparties may agree. The parties shall endeavor to assist the Mediator in concluding the Mediation within a reasonable time, with a target of not later than thirty (30) days after initial submission of materials to the Mediator.\nAt any time, after the parties have engaged in reasonable mediation activity, the Mediator may declare the Mediation to be terminated, and either party may elect to terminate the Mediation at any time by giving notice to the other party\nand the Mediator, if the Dispute is not resolved within ninety (90) days after the appointment of the Mediator. If, upon termination of the Mediation, the Dispute remains\nPage 14 of 17\nunresolved, both parties shall reserve all rights to seek a judicial resolution of the Dispute in accordance with applicable law, except as otherwise restricted by this Agreement, and to receive their costs and reasonable attorneys fees in a\nprevailing action. The resolution of any Dispute shall not constitute an amendment to the Agreement or a waiver or modification of either party’s rights.\nSection 26. Unenforceable Terms\nIn the event any term or provision of this Agreement shall for any reason be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other term or provisions hereof. In such an\nevent, this Agreement shall be interpreted and construed as if such term or provision, to the extent the same shall have been held invalid, illegal or unenforceable, had never been contained herein.\nSection 27. Governing Law and Construction\nThis Agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Virginia and the United States of America. Venue for any dispute arising hereunder shall be Prince Williams County, Virginia. The\nEnglish language shall control any interpretation of terms. This Agreement shall be construed without regard to any presumption or any other rule requiring construction against the party who caused it to have been drafted. The headings\nof sections and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof. When the context requires, the gender of all words used\nherein shall include the masculine, feminine and neuter and the number of all words shall include the singular and plural. Use of the words “herein”, “hereof”, “hereto” and the like in this Agreement shall be construed as references to this\nAgreement as a whole and not to any particular Article, Section or provision of this Agreement, unless otherwise noted.\nSection 28. Other Agreements; Amendments, Miscellaneous\n(1)\nThis Agreement represents the full and complete understanding and agreement of the parties and supersedes and cancels any prior agreements between the parties or their predecessors relating to Product, the Intellectual Property,\nthe Deck Process or otherwise, other than in regard to previously executed agreements of confidentiality or similar restrictive covenants, which shall be interpreted in conduction with this Agreement to increase but in no event to\nlimit the protections of this Agreement, in order to provide the strongest protection to the party seeking safekeeping of its proprietary and confidential information. This Agreement may be amended or nullified only by a writing\nexecuted by officers of both parties.\n(2)\nExcept as may otherwise be required by law or regulation or by court or administrative agency order, the parties hereto agree that no press release or similar public announcements shall be made with respect to the proposed\ntransactions unless the parties hereto have consented in writing to such disclosure, which consent shall not be unreasonably withheld.\n(3)\nUpon termination or expiration of this Agreement, the terms and conditions of this Agreement which by their reasonable construction are intended to survive termination or expiration of this Agreement shall, in such event, remain\nin effect, including but not limited to those pertaining to Universal’s covenants, representations and warranties to USA.\n(4)\nThis Agreement may be executed in multiple counterparts, each of which shall be deemed an original but all of which together shall constitute a single instrument. Execution and delivery of this Agreement by exchange of\nfacsimile copies bearing facsimile signature of a party shall constitute a valid and binding execution and delivery of this agreement by such party.\nPage 15 of 17\n(5)\nThe parties did not engage the services of any broker for the procurement of this transaction. Each party hereto shall bear its own costs and expenses (including accounting costs and attorneys’ fees), except that each party hereto\nagrees to pay the costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the other parties in successfully (a) enforcing any of the terms of this Agreement or (b) proving that another party breached any\nof the terms of this Agreement or related documents.\n(6)\nExcept as may otherwise be required by law or regulation or by court or administrative agency order, the parties hereto agree that no press release or similar public statements shall be made with respect to the proposed transactions\nunless the other party has consented to such disclosure, which consent shall not be unreasonably withheld.\nSection 29. Effective Date\nThe Effective Date shall be on or before March 31, 2003, or such other date as mutually agreed to by the parties.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in their corporate names by their duly authorized representatives.\nUSA DECK, INC .\nUNIVERSAL FOREST PRODUCTS, INC.\nBY:\n/s/ Daniel L. Betts\nBY: /s/ Matthew J. Missad\nDaniel L. Betts, President\nNAME:\nMatthew J. Missad\nTITLE:Exec, VP\n7DATE:\n3/31/03\nDATE:3/31/03\nPage 16 of 17\nEXHlBIT A\n12-Month Market Zones\n9-Month Market Zones\nShort Market Zones\nNo Sale Market Zones\nOpt Out Zones\nPage 17 of 17
+f7874fb1b1650af90316fe514bbbccd3.pdf	effective_date jurisdiction party	Exhibit 10.53\nRESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT\nIn exchange for the mutual promises and consideration set forth below, this Restrictive Covenant and Confidentiality\nAgreement (“Agreement”) is entered into by and between the Federal Home Loan Mortgage Corporation (“Freddie Mac”\nor “Company”) and Donald J. Bisenius (“Executive”), effective as of this 11th day of March, 2001.\nI. Definitions\nThe following terms shall have the meanings indicated when used in this Agreement.\nA. Competitor: The following entities, and their respective parents, successors, subsidiaries, and affiliates are\ncompetitors: (i) Fannie Mae (ii) all Federal Home Loan Banks (including the Office of Finance); and (iii) such other\nentities to which Executive and the Company may agree in writing from time-to-time.\nB. Confidential Information: Information or materials in written, oral, magnetic, digital, computer, photographic, optical,\nelectronic, or other form, whether now existing or developed or created during the period of Executive’s employment\nwith Freddie Mac, that constitutes trade secrets and/or proprietary or confidential information. This information includes,\nbut is not limited to: (i) all information marked Proprietary or Confidential; (ii) information concerning the components,\ncapabilities, and attributes of Freddie Mac’s business plans, methods, and strategies; (iii) information relating to tactics,\nplans, or strategies concerning shareholders, investors, pricing, investment, marketing, sales, trading, funding, hedging,\nmodeling, sales and risk management; (iv) financial or tax information and analyses, including but not limited to,\ninformation concerning Freddie Mac’s capital structure and tax or financial planning; (v) confidential information about\nFreddie Mac’s customers, borrowers, employees, or others; (vi) pricing and quoting information, policies, procedures,\nand practices; (vii) confidential customer lists; (viii) proprietary algorithms; (ix) confidential contract terms;\n(x) confidential information concerning Freddie Mac’s policies, procedures, and practices or the way in which Freddie\nMac does business; (xi) proprietary or confidential data bases, including their structure and content; (xii) proprietary\nFreddie Mac business software, including its design, specifications and documentation; (xiii) information about Freddie\nMac products, programs, and services which has not yet been made public; (xiv) confidential information about Freddie\nMac’s dealings with third parties, including dealers, customers, vendors, and regulators; and/or (xv) confidential\ninformation belonging to third parties to which Executive received access in connection with Executive’s employment\nwith Freddie Mac. Confidential Information does not include general skills, experience, or knowledge acquired in\nconnection with Executive’s employment with Freddie Mac that otherwise are generally known to the public or within\nthe industry or trade in which Freddie Mac operates.\nC. Severance: Cash compensation paid pursuant to Freddie Mac’s Severance Policy.\n2\nD. Severance Policy: Freddie Mac Policy 3-254 .1 (Severance — Officers), or any subsequent and superceding severance\npolicy.\nII. Non-Competition\nExecutive recognizes that as a result of Executive’s employment with Freddie Mac, Executive has access to and\nknowledge of critically sensitive Confidential Information, the improper disclosure or use of which would result in grave\ncompetitive harm to Freddie Mac. Therefore, Executive agrees that neither during Executive’s employment with Freddie\nMac, nor for the twelve (12) months immediately following termination of Executive’s employment for any reason, will\nExecutive consider offers of employment from, seek or accept employment with, or otherwise directly or indirectly\nprovide professional services to any Competitor. Executive acknowledges and agrees that this covenant has unique,\nsubstantial and immeasurable value to Freddie Mac, that Executive has sufficient assets and skills to provide a livelihood\nfor Executive while this covenant remains in force, and that this covenant will not interfere with Executive’s ability to\nwork consistent with Executive’s experience, training and education. This non-competition covenant applies regardless\nof whether Executive’s employment is terminated by Executive, by Freddie Mac, or by a joint decision.\nIII. Non-Solicitation\nDuring Executive’s employment with Freddie Mac and for a period of twelve (12) months after Executive’s termination\ndate, Executive will not solicit, attempt to solicit or assist another in soliciting any Freddie Mac managerial employee\n(including manager-level, Executive-level, or officer-level employee) with whom Executive worked, or any employee\nwhom Executive directly or indirectly supervised at Freddie Mac, to leave the employee’s employment with Freddie Mac\nfor purposes of employment or for the rendering of professional services. This prohibition against solicitation does not\napply if Freddie Mac has notified the employee being solicited that his/her employment with the Company will be\nterminated pursuant to a corporate reorganization or reduction-in-force.\n3\nIV. Treatment of Confidential Information\nA. Non-Disclosure. Executive recognizes that Freddie Mac is engaged in an extremely competitive business and that, in\nthe course of performing Executive’s job duties, Executive will have access to and gain knowledge about Confidential\nInformation. Executive further recognizes the importance of carefully protecting this Confidential Information in order\nfor Freddie Mac to compete successfully. Therefore, Executive agrees that Executive will neither divulge Confidential\nInformation to any persons, including to other Freddie Mac employees who do not have a Freddie Mac business-related\nneed to know, nor make use of the Confidential Information for the Executive’s own benefit or for the benefit of anyone\nelse other than Freddie Mac. Executive further agrees to take all reasonable precautions to prevent the disclosure of\nConfidential Information to unauthorized persons or entities, and to comply with all Company policies, procedures, and\ninstructions regarding the treatment of such information.\nB. Return of Materials. Executive agrees that upon termination of Executive’s employment with Freddie Mac for any\nreason whatsoever, Executive will deliver to Executive’s immediate supervisor all tangible materials embodying\nConfidential Information, including, but not limited to, any documentation, records, listings, notes, files, data, sketches,\nmemoranda, models, accounts, reference materials, samples, machine-readable media, computer disks, tapes, and\nequipment which in any way relate to Confidential Information, whether developed by Executive or not. Executive\nfurther agrees not to retain any copies of any materials embodying Confidential Information.\nC. Post-Termination Obligations. Executive agrees that after the termination of Executive’s employment for any reason,\nExecutive will not use in any way whatsoever, nor disclose any Confidential Information learned or obtained in\nconnection with Executive’s employment with Freddie Mac without first obtaining the written permission of the Senior\nVice President of Human Resources of Freddie Mac. Executive further agrees that, in order to assure the continued\nconfidentiality of the Confidential Information, Freddie Mac may correspond with Executive’s future employers to\nadvise them generally of Executive’s exposure to and knowledge of Confidential Information, and Executive’s\nobligations and responsibilities regarding the Confidential Information. Executive understands and agrees that any such\ncontact may include a request for assurance and confirmation from such employer(s) that Executive will not disclose\nConfidential Information to such employer(s), nor will such employer(s) permit any use whatsoever of the Confidential\nInformation. To enable Freddie Mac to monitor compliance with the obligations imposed by this Agreement, Executive\nfurther agrees to inform in writing Freddie Mac’s Senior Vice President of Human Resources of the identity of\nExecutive’s subsequent employer(s) and Executive’s prospective job title and responsibilities prior to beginning\nemployment. Executive agrees that this notice requirement shall remain in effect for twelve (12) months following the\ntermination of Executive’s Freddie Mac employment.\n4\nV. Consideration Given to Executive\nIn exchange for agreeing to be employed by Freddie Mac on the terms, conditions, and restrictions stated in this\nAgreement, Freddie Mac will provide the Executive with the following consideration, each of which itself is adequate\nconsideration for Executive’s agreement to be bound by the provisions of this Agreement:\nA. Twelve-Month’s Severance. Executive acknowledges that under Freddie Mac’s Severance Policy, Executive may be\neligible to receive Severance upon termination of employment, the duration of which is within the discretion of Freddie\nMac. In exchange for Executive agreeing to be bound by this Agreement, Freddie Mac agrees to provide Executive with\nSeverance pursuant to the Severance Policy for a period of twelve (12) months following termination, provided the\ncircumstances of the Executive’s termination qualify for Severance under the Severance Policy. In the event that at the\ntime of termination, Executive occupies a position that is an “Executive Officer” of Freddie Mac as Freddie Mac\ninterprets that term to be defined in Section 1303(7) of the Federal Housing Enterprise Financial Safety and Soundness\nAct of 1992 and related administrative guidance, then Executive acknowledges that receipt of the twelve (12) months\nseverance under this paragraph is contingent upon any legally required approval from the Office of Federal Housing\nEnterprise Oversight (“OFHEO”). If such approval is not received, then Executive will not be eligible for Severance. The\ntwelve (12)-month Severance guarantee provided by this Paragraph V(A) is in place of, and not in addition to, Severance\nto which Executive would otherwise be entitled under any other agreement between Executive and Freddie Mac.\nB. Long-Term Incentive Grant. In exchange for Executive agreeing to be bound by this Agreement, Freddie Mac further\nagrees to provide Executive with a long-term incentive grant as approved by the Human Resources Committee of the\nFreddie Mac Board of Directors on March 2, 2001. Executive’s failure to execute and return this Agreement to Freddie\nMac on or before March 30, 2001, will result in Executive’s ineligibility for such long-term incentive grant otherwise\nprovided pursuant to this Paragraph V(B).\nVI. Reservation of Rights\nExecutive agrees that nothing in this Agreement constitutes a contract or commitment by Freddie Mac to continue\nExecutive’s employment in any job position for any period of time, nor does anything in this Agreement limit in any way\nFreddie Mac’s right to terminate Executive’s employment at any time for any reason.\nVII. Enforcement\nA. Executive acknowledges that Executive may be subject to discipline, up to and including termination of employment,\nfor Executive’s breach or threat of breach of any provision of this Agreement.\n5\nB. Executive agrees that irreparable injury will result to Freddie Mac’s business interests in the event of breach or\nthreatened breach of this Agreement, the full extent of Freddie Mac’s damages will be impossible to ascertain, and\nmonetary damages will not be an adequate remedy for Freddie Mac. Therefore, Executive agrees that in the event of a\nbreach or threat of breach of any provision(s) of this Agreement, Freddie Mac, in addition to any other relief available,\nshall be entitled to temporary, preliminary, and permanent equitable relief to restrain any such breach or threat of breach\nby Executive and all persons acting for and/or in concert with Executive, without the necessity of posting bond or\nsecurity, which Executive expressly waives.\nC. Executive agrees that each of Executive’s obligations specified in this Agreement is a separate and independent\ncovenant, and that all of Executive’s obligations set forth herein shall survive any termination, for any reason, of\nExecutive’s Freddie Mac employment. To the extent that any provision of this Agreement is determined by a court of\ncompetent jurisdiction to be unenforceable because it is overbroad, that provision shall be limited and enforced to the\nextent permitted by applicable law. Should any provision of this Agreement be declared or determined by any court of\ncompetent jurisdiction to be unenforceable or invalid under applicable law, the validity of the remaining obligations will\nnot be affected thereby and only the unenforceable or invalid obligation will be deemed not to be a part of this\nAgreement.\nD. This Agreement is governed by, and will be construed in accordance with, the laws of the Commonwealth of\nVirginia, without regard to its or any other jurisdiction’s conflict-of-law provisions. Executive agrees that any action\nrelated to or arising out of this Agreement shall be brought exclusively in the United States District Court for the Eastern\nDistrict of Virginia, and Executive hereby irrevocably consents to personal jurisdiction and venue in such court and to\nservice of process by United States Mail or express courier service in any such action.\nE. If any dispute(s) arise(s) between Freddie Mac and Executive with respect to any matter which is the subject of this\nAgreement, the prevailing party in such dispute(s) shall be entitled to recover from the other party all of its costs and\nexpenses, including its reasonable attorneys’ fees.\nVIII. Prior Restrictive Covenant, Non-Competition, Non-Solicitation Agreements\nExcept as provided in Paragraph V(A), this Agreement does not supercede and prior agreement(s) between Executive and\nFreddie Mac. To the extent that any prior agreement(s) between Executive and Freddie Mac contain provisions regarding\nany of the subject matters discussed herein, the provisions that are more restrictive of Executive prevail.\nExecutive has been advised to discuss all aspects of this Agreement with Executive’s private attorney. Executive\nacknowledges that Executive has carefully read and understands the terms and provisions of this Agreement and\nthat they are reasonable. Executive signs this Agreement voluntarily and accepts all obligations contained in this\nAgreement in exchange for the consideration to be given to Executive as outlined above, which Executive\nacknowledges is adequate and satisfactory, and which Executive further acknowledges Freddie Mac is not\notherwise obligated to provide to Executive. Neither Freddie Mac nor its agents, representatives, directors,\nofficers or employees have made any representations to\n6\nExecutive concerning the terms or effects of this Agreement, other than those contained in this Agreement.\nBy: /s/ Donald J. Bisenius\n[name of employee]\nFreddie Mac\nBy: /s/ Paul T. Peterson	Exhibit 10.53\nRESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT\nIn exchange for the mutual promises and consideration set forth below, this Restrictive Covenant and Confidentiality\nAgreement (”A greement”) is entered into by and between the Federal Home Loan Mortgage Corporation (”Freddie Mac”\nor ”Company”) and Donald]. Bisenius (”Executive”), effective as of this 11th day of March, 2001.\n1. Definitions\nThe following terms shall have the meanings indicated when used in this Agreement.\nA. C ompetitor: The following entities, and their respective parents, successors, subsidiaries, and affiliates are\ncompetitors: (i) Fannie Mae (ii) all Federal Home Loan Banks (including the Office of Finance) ,- and (iii) such other\nentities to which Executive and the Company may agree in writing from time-to-time.\nB. Confidential Information: Information or materials in written, oral, magnetic, digital, computer, photographic, optical,\nelectronic, or other form, whether now existing or developed or created during the period of Executive’s employment\nwith Freddie Mac, that constitutes trade secrets and/or proprietary or confidential information. This information includes,\nbut is not limited to: (i) all information marked Proprietary or Confidential,- (ii) information concerning the components,\ncapabilities, and attributes of Freddie Mac’s business plans, methods, and strategies,- (iii) information relating to tactics,\nplans, or strategies concerning shareholders, investors, pricing, investment, marketing, sales, trading, funding, hedging,\nmodeling, sales and risk management,- (iv) financial or tax information and analyses, including but not limited to,\ninformation concerning Freddie Mac’s capital structure and tax or financial planning,- (v) confidential information about\nFreddie Mac’s customers, borrowers, employees, or others,- (vi) pricing and quoting information, policies, procedures,\nand practices,- (vii) confidential customer lists,- (viii) proprietary algorithms,- (ix) confidential contract terms,-\n(x) confidential information concerning Freddie Mac’s policies, procedures, and practices or the way in which Freddie\nMac does business,- (xi) proprietary or confidential data bases, including their structure and content,- (xii) proprietary\nFreddie Mac business software, including its design, specifications and documentation,- (xiii) information about Freddie\nMac products, programs, and services which has not yet been made public,- (xiv) confidential information about Freddie\nMac’s dealings with third parties, including dealers, customers, vendors, and regulators,- and/or (xv) confidential\ninformation belonging to third parties to which Executive received access in connection with Executive’s employment\nwith Freddie Mac. Confidential Information does not include general skills, experience, or knowledge acquired in\nconnection with Executive’ s employment with Freddie Mac that otherwise are generally known to the public or within\nthe industry or trade in which Freddie Mac operates.\nC. Severance: Cash compensation paid pursuant to Freddie Mac’s Severance Policy.\nD. Severance Policy: Freddie Mac Policy 3-254.1 (Severance — Officers), or any subsequent and supereeding severance\npolicy.\n11. Non-C ompetition\nExecutive recognizes that as a result of Executive’s employment with Freddie Mac, Executive has access to and\nknowledge of critically sensitive Confidential Information, the improper disclosure or use of which would result in grave\ncompetitive harm to Freddie Mac. Therefore, Executive agrees that neither during Executive’ s employment with Freddie\nMac, nor for the twelve (12) months immediately following termination of Executive’s employment for any reason, will\nExecutive consider offers of employment from, seek or accept employment with, or otherwise directly or indirectly\nprovide professional services to any Competitor. Executive acknowledges and agrees that this covenant has unique,\nsubstantial and immeasurable value to Freddie Mac, that Executive has sufficient assets and skills to provide a livelihood\nfor Executive while this covenant remains in force, and that this covenant will not interfere with Executive’s ability to\nwork consistent with Executive’ s experience, training and education. This non-competition covenant applies regardless\nof whether Executive’s employment is terminated by Executive, by Freddie Mac, or by a joint decision.\nIII. Non-Solicitation\nDuring Executive’ s employment with Freddie Mac and for a period of twelve (12) months after Executive’s termination\ndate, Executive will not solicit, attempt to solicit or assist another in soliciting any Freddie Mac managerial employee\n(including manager-level, Executive-level, or officer-level employee) with whom Executive worked, or any employee\nwhom Executive directly or indirectly supervised at Freddie Mac, to leave the employee’s employment with Freddie Mac\nfor purposes of employment or for the rendering of professional services. This prohibition against solicitation does n_ot\napply if Freddie Mac has notified the employee being solicited that his/her employment with the Company will be\nterminated pursuant to a corporate reorganization or reduction-in—foree.\nIV. Treatment of Confidential Information\nA. Non-Disclosure. Executive recognizes that Freddie Mac is engaged in an extremely competitive business and that, in\nthe course of performing Executive’s job duties, Executive will have access to and gain knowledge about Confidential\nInformation. Executive further recognizes the importance of carefully protecting this Confidential Information in order\nfor Freddie Mac to compete successfully. Therefore, Executive agrees that Executive will neither divulge Confidential\nInformation to any persons, including to other Freddie Mac employees who do not have a Freddie Mac business-related\nneed to know, nor make use of the Confidential Information for the Executive’s own benefit or for the benefit of anyone\nelse other than Freddie Mac. Executive further agrees to take all reasonable precautions to prevent the disclosure of\nConfidential Information to unauthorized persons or entities, and to comply with all Company policies, procedures, and\ninstructions regarding the treatment of such information.\nB. Return of Materials. Executive agrees that upon termination of Executive’ s employment with Freddie Mac for any\nreason whatsoever, Executive will deliver to Executive’s immediate supervisor all tangible materials embodying\nConfidential Information, including, but not limited to, any documentation, records, listings, notes, files, data, sketches,\nmemoranda, models, accounts, reference materials, samples, machine- readable media, computer disks, tapes, and\nequipment which in any way relate to Confidential Information, whether developed by Executive or not. Executive\nfurther agrees not to retain any copies of any materials embodying Confidential Information.\nC. Post-Termination Obligations. Executive agrees that after the termination of Executive’s employment for any reason,\nExecutive will not use in any way whatsoever, nor disclose any Confidential Information learned or obtained in\nconnection with Executive’ s employment with Freddie Mac without first obtaining the written permission of the Senior\nVice President of Human Resources of Freddie Mac. Executive further agrees that, in order to assure the continued\nconfidentiality of the Confidential Information, Freddie Mac may correspond with Executive’s future employers to\nadvise them generally of Executive’ s exposure to and knowledge of Confidential Information, and Executive’s\nobligations and responsibilities regarding the Confidential Information. Executive understands and agrees that any such\ncontact may include a request for assurance and confirmation from such employer(s) that Executive will not disclose\nConfidential Information to such employer(s), nor will such employer(s) permit any use whatsoever of the Confidential\nInformation. To enable Freddie Mac to monitor compliance with the obligations imposed by this Agreement, Executive\nfurther agrees to inform in writing Freddie Mac’s Senior Vice President of Human Resources of the identity of\nExecutive’s subsequent employer(s) and Executive’ s prospective job title and responsibilities prior to beginning\nemployment. Executive agrees that this notice requirement shall remain in effect for twelve (12) months following the\ntermination of Executive’ s Freddie Mac employment.\nV. Consideration Given to Executive\nIn exchange for agreeing to be employed by Freddie Mac on the terms, conditions, and restrictions stated in this\nAgreement, Freddie Mac will provide the Executive with the following consideration, each of which itself is adequate\nconsideration for Executive’ 8 agreement to be bound by the provisions of this Agreement:\nA. Twelve-Month' s Severance. Executive acknowledges that under Freddie Mac’ 8 Severance Policy, Executive may be\neligible to receive Severance upon termination of employment, the duration of which is within the discretion of Freddie\nMac. In exchange for Executive agreeing to be bound by this Agreement, Freddie Mac agrees to provide Executive with\nSeverance pursuant to the Severance Policy for a period of twelve (12) months following termination, provided the\ncircumstances of the Executive’ 8 termination qualify for Severance under the Severance Policy. In the event that at the\ntime of termination, Executive occupies a position that is an ”Executive Officer” of Freddie Mac as Freddie Mac\ninterprets that term to be defined in Section 1303(7) of the Federal Housing Enterprise Financial Safety and Soundness\nAct of 1992 and related administrative guidance, then Executive acknowledges that receipt of the twelve (12) months\nseverance under this paragraph is contingent upon any legally required approval from the Office of Federal Housing\nEnterprise Oversight (”OFHEO”). If such approval is not received, then Executive will not be eligible for Severance. The\ntwelve (12)-month Severance guarantee provided by this Paragraph WA) is in place of, and not in addition to, Severance\nto which Executive would otherwise be entitled under any other agreement between Executive and Freddie Mac.\nB. Long-Term Incentive G rant. In exchange for Executive agreeing to be bound by this Agreement, Freddie Mac further\nagrees to provide Executive with a long-term incentive grant as approved by the Human Resources Committee of the\nFreddie Mac Board of Directors on March 2, 2001. Executive’s failure to execute and return this Agreement to Freddie\nMac on or before March 30, 2001, will result in Executive’s ineligibility for such long-term incentive grant otherwise\nprovided pursuant to this Paragraph V (B).\nVI. Reservation of Rights\nExecutive agrees that nothing in this Agreement constitutes a contract or commitment by Freddie Mac to continue\nExecutive’s employment in any job position for any period of time, nor does anything in this Agreement limit in any way\nFreddie Mac’s right to terminate Executive’s employment at any time for any reason.\nVII. Enforcement\nA. Executive acknowledges that Executive may be subject to discipline, up to and including termination of employment,\nfor Executive’s breach or threat of breach of any provision of this Agreement.\nB. Executive agrees that irreparable injury will result to Freddie Mac’s business interests in the event of breach or\nthreatened breach of this Agreement, the full extent of Freddie Mac’s damages will be impossible to ascertain, and\nmonetary damages will not be an adequate remedy for Freddie Mac. Therefore, Executive agrees that in the event of a\nbreach or threat of breach of any provision(s) of this Agreement, Freddie Mac, in addition to any other relief available,\nshall be entitled to temporary, preliminary, and permanent equitable relief to restrain any such breach or threat of breach\nby Executive and all persons acting for and/or in concert with Executive, without the necessity of posting bond or\nsecurity, which Executive expressly waives.\nC. Executive agrees that each of Executive’ s obligations specified in this Agreement is a separate and independent\ncovenant, and that all of Executive’s obligations set forth herein shall survive any termination, for any reason, of\nExecutive’s Freddie Mac employment. To the extent that any provision of this Agreement is determined by a court of\ncompetent jurisdiction to be unenforceable because it is overbroad, that provision shall be limited and enforced to the\nextent permitted by applicable law. Should any provision of this Agreement be declared or determined by any court of\ncompetent jurisdiction to be unenforceable or invalid under applicable law, the validity of the remaining obligations will\nnot be affected thereby and only the unenforceable or invalid obligation will be deemed not to be a part of this\nAgreement.\nD. This Agreement is governed by, and will be construed in accordance with, the laws of the Commonwealth of\nVirginia, without regard to its or any other jurisdiction’s conflict-of-law provisions. Executive agrees that any action\nrelated to or arising out of this Agreement shall be brought exclusively in the United States District Court for the Eastern\nDistrict of Virginia, and Executive hereby irrevocably consents to personal jurisdiction and venue in such court and to\nservice of process by United States Mail or express courier service in any such action.\nE. If any dispute(s) arise(s) between Freddie Mac and Executive with respect to any matter which is the subject of this\nAgreement, the prevailing party in such dispute(s) shall be entitled to recover from the other party all of its costs and\nexpenses, including its reasonable attorneys’ fees.\nVIII. Prior Restrictive Covenant, Non-C ompetition, Non-Solicitation Agreements\nExcept as provided in Paragraph V (A ), this Agreement does not supercede and prior agreement(s) between Executive and\nFreddie Mac. To the extent that any prior agreement(s) between Executive and Freddie Mac contain provisions regarding\nany of the subject matters discussed herein, the provisions that are more restrictive of Executive prevail.\nExecutive has been advised to discuss all aspects of this Agreement with Executive’s private attorney. Executive\nacknowledges that Executive has carefully read and understands the terms and provisions of this Agreement and\nthat they are reasonable. Executive signs this Agreement voluntarily and accepts all obligations contained in this\nAgreement in exchange for the consideration to be given to Executive as outlined above, which Executive\nacknowledges is adequate and satisfactory, and which Executive further acknowledges Freddie Mac is not\notherwise obligated to provide to Executive. Neither Freddie Mac nor its agents, representatives, directors,\nofficers or employees have made any representations to\nExecutive concerning the terms or effects of this Agreement, other than those contained in this Agreement.\nBy: /s/ Donald]. Bisenius\n[name of employee]\nFreddie Mac\nBy: /s/ Paul T. Peterson	Exhibit 10.53\nRESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT\nIn exchange for the mutual promises and consideration set forth below, this Restrictive Covenant and Confidentiality\nA greement greement") is entered into by and between the Federal Home Loan Mortgage Corporation ("Freddie Mac"\nor "Company") and Donald J. Bisenius ("Executive"), effective as of this 11th day of March, 2001.\nI. Definitions\nThe following terms shall have the meanings indicated when used in this A greement.\nA. Competitor: The following entities, and their respective parents, successors, subsidiaries, and affiliates are\ncompetitors: (i) Fannie Mae (ii) all Federal Home Loan Banks (including the Office of Finance); and (iii) such other\nentities to which Executive and the Company may agree in writing from time-to-time.\nB. Confidential Information: Information or materials in written, oral, magnetic, digital, computer, photographic, optical,\nelectronic, or other form, whether now existing or developed or created during the period of Executive's employment\nwith Freddie Mac, that constitutes trade secrets and/or proprietary or confidential information. This information includes,\nbut is not limited to: (i) all information marked Proprietary or Confidential; (ii) information concerning the components,\ncapabilities, and attributes of Freddie Mac's business plans, methods, and strategies; (iii) information relating to tactics,\nplans, or strategies concerning shareholders, investors, pricing, investment, marketing, sales, trading, funding, hedging,\nmodeling, sales and risk management; (iv) financial or tax information and analyses, including but not limited to,\ninformation concerning Freddie Mac's capital structure and tax or financial planning; (v) confidential information about\nFreddie Mac's customers borrowers, employees, or others; (vi) pricing and quoting information, policies, procedures,\nand practices; (vii) confidential customer lists; (viii) proprietary algorithms; (ix) confidential contract terms;\n(x) confidential information concerning Freddie Mac's policies, procedures, and practices or the way in which Freddie\nMac does business; (xi) proprietary or confidential data bases including their structure and content; (xii) proprietary\nFreddie Mac business software, including its design, specifications and documentation; (xiii) information about Freddie\nMac products, programs, and services which has not yet been made public; (xiv) confidential information about Freddie\nMac's dealings with third parties, including dealers, customers, vendors, and regulators; and/or (xv) confidential\ninformation belonging to third parties to which Executive received access in connection with Executive's employment\nwith Freddie Mac. Confidential Information does not include general skills, experience, or knowledge acquired in\nconnection with Executive's employment with Freddie Mac that otherwise are generally known to the public or within\nthe industry or trade in which Freddie Mac operates.\nC. Severance: Cash compensation paid pursuant to Freddie Mac's Severance Policy.\n2\nD. Severance Policy: Freddie Mac Policy 3-254.1 (Severance Officers), or any subsequent and superceding severance\npolicy.\nII. Non-c ompetition\nExecutive recognizes that as a result of Executive's employment with Freddie Mac, Executive has access to and\nknowledge of critically sensitive Confidential Information, the improper disclosure or use of which would result in grave\ncompetitive harm to Freddie Mac. Therefore, Executive agrees that neither during Executive's employment with Freddie\nMac, nor for the twelve (12) months immediately following termination of Executive's employment for any reason, will\nExecutive consider offers of employment from, seek or accept employment with, or otherwise directly or indirectly\nprovide professional services to any Competitor. Executive acknowledges and agrees that this covenant has unique,\nsubstantial and immeasurable value to Freddie Mac, that Executive has sufficient assets and skills to provide a livelihood\nfor Executive while this covenant remains in force, and that this covenant will not interfere with Executive's ability to\nwork consistent with Executive's experience, training and education. This non-competition covenant applies regardless\nof whether Executive's employment is terminated by Executive, by Freddie Mac, or by a joint decision.\nIII. Non-Solicitation\nDuring Executive's employment with Freddie Mac and for a period of twelve (12) months after Executive's termination\ndate, Executive will not solicit attempt to solicit or assist another in soliciting any Freddie Mac manageria employee\n(including manager-level, Executive-level, or officer-level employee) with whom Executive worked, or any employee\nwhom Executive directly or indirectly supervised at Freddie Mac, to leave the employee's employment with Freddie Mac\nfor purposes of employment or for the rendering of professional services. This prohibition against solicitation does not\napply if Freddie Mac has notified the employee being solicited that his/her employment with the Company will be\nterminated pursuant to a corporate reorganization or reduction-in-force.\n3\nIV. Treatment of Confidential Information\nA. Non-Disclosure. Executive recognizes that Freddie Mac is engaged in an extremely competitive business and that, in\nthe course of performing Executive's job duties, Executive will have access to and gain knowledge about Confidential\nInformation. Executive further recognizes the importance of carefully protecting this Confidential Information in order\nfor Freddie Mac to compete successfully. Therefore, Executive agrees that Executive will neither divulge Confidential\nInformation to any persons, including to other Freddie Mac employees who do not have a Freddie Mac business-related\nneed to know, nor make use of the Confidential Information for the Executive's own benefit or for the benefit of anyone\nelse other than Freddie Mac. Executive further agrees to take all reasonable precautions to prevent the disclosure of\nConfidential Information to unauthorized persons or entities, and to comply with all Company policies, procedures, and\ninstructions regarding the treatment of such information.\nB. Return of Materials. Executive agrees that upon termination of Executive's employment with Freddie Mac for any\nreason whatsoever, Executive will deliver to Executive's immediate supervisor all tangible materials embodying\nConfidential Information, including, but not limited to, any documentation, records, listings, notes, files, data, sketches,\nmemoranda, models, accounts, reference materials, samples, machine-readable media, computer disks, tapes, and\nequipment which in any way relate to Confidential Information, whether developed by Executive or not. Executive\nfurther agrees not to retain any copies of any materials embodying Confidential Information.\nC. Post-Termination Obligations. Executive agrees that after the termination of Executive's employment for any reason,\nExecutive will not use in any way whatsoever, nor disclose any Confidential Information learned or obtained in\nconnection with Executive's employment with Freddie Mac without first obtaining the written permission of the Senior\nVice President of Human Resources of Freddie Mac. Executive further agrees that, in order to assure the continued\nconfidentiality\nof\nthe\nConfidential\nInformation,\nFreddie\nMac\nmay\ncorrespond\nwith\nExecutive's\nfuture\nemployers\nto\nadvise them generally of Executive's exposure to and knowledge of Confidential Information, and Executive's\nobligations and responsibilities regarding the Confidential Information. Executive understands and agrees that any such\ncontact may include a request for assurance and confirmation from such employer(s) that Executive will not disclose\nConfidential Information to such employer(s), nor will such employer(s) permit any use whatsoever of the Confidential\nInformation. To enable Freddie Mac to monitor compliance with the obligations imposed by this A greement Executive\nfurther agrees to inform in writing Freddie Mac's Senior Vice President of Human Resources of the identity of\nExecutive's subsequent employer(s) and Executive's prospective job title and responsibilities prior to beginning\nemployment. Executive agrees that this notice requirement shall remain in effect for twelve (12) months following the\ntermination of Executive's Freddie Mac employment.\n4\nV. Consideration iven to Executive\nIn exchange for agreeing to be employed by Freddie Mac on the terms, conditions, and restrictions stated in this\nAgreement, Freddie Mac will provide the Executive with the following consideration, each of which itself is adequate\nconsideration for Executive's agreement to be bound by the provisions of this A greement:\nA. Twelve-Month's Severance. Executive acknowledges that under Freddie Mac's Severance Policy, Executive may be\neligible to receive Severance upon termination of employment, the duration of which is within the discretion of Freddie\nMac. In exchange for Executive agreeing to be bound by this A greement, Freddie Mac agrees to provide Executive with\nSeverance pursuant to the Severance Policy for a period of twelve (12) months following termination, provided the\ncircumstances of the Executive's termination qualify for Severance under the Severance Policy. In the event that at the\ntime of termination, Executive occupies a position that is an "Executive Officer" of Freddie Mac as Freddie Mac\ninterprets that term to be defined in Section 1303(7) of the Federal Housing Enterprise Financial Safety and Soundness\nct of 1992 and related administrative guidance, then Executive acknowledges that receipt of the twelve (12) months\nseverance under this paragraph is contingent upon any legally required approval from the Office of Federal Housing\nEnterprise Oversight ("OFHEO"). If such approval is not received, then Executive will not be eligible for Severance. The\ntwelve (12)-month Severance guarantee provided by this Paragraph V(A) is in place of, and not in addition to, Severance\nto which Executive would otherwise be entitled under any other agreement between Executive and Freddie Mac.\nB. Long-Term Incentive Grant. In exchange for Executive agreeing to be bound by this A greement Freddie Mac further\nagrees to provide Executive with a long-term incentive grant as approved by the Human Resources Committee of the\nFreddie Mac Board of Directors on March 2, 2001. Executive's failure to execute and return this greement to Freddie\nMac on or before March 30, 2001, will result in Executive's ineligibility for such long-term incentive grant otherwise\nprovided pursuant to this Paragraph (B)\nVI. Reservation of Rights\nExecutive agrees that nothing in this A greement constitutes a contract or commitment by Freddie Mac to continue\nExecutive's employment in any job position for any period of time, nor does anything in this A greement limit in any way\nFreddie Mac's right to terminate Executive's employment at any time for any reason.\nVII. Enforcement\nA. Executive acknowledges that Executive may be subject to discipline up to and including termination of employment,\nfor Executive's breach or threat of breach of any provision of this A greement.\n5\nB. Executive agrees that irreparable injury will result to Freddie Mac's business interests in the event of breach or\nthreatened breach of this A greement, the full extent of Freddie Mac's damages will be impossible to ascertain, and\nmonetary damages will not be an adequate remedy for Freddie Mac. Therefore, Executive agrees that in the event of a\nbreach or threat of breach of any provision(s) of this greement, Freddie Mac, in addition to any other relief available,\nshall be entitled to temporary, preliminary, and permanent equitable relief to restrain any such breach or threat of breach\nby Executive and all persons acting for and/or in concert with Executive, without the necessity of posting bond or\nsecurity, which Executive expressly waives.\nC. Executive agrees that each of Executive's obligations specified in this A greement is a separate and independent\ncovenant, and that all of Executive's obligations set forth herein shall survive any termination, for any reason, of\nExecutive's Freddie Mac employment. To the extent that any provision of this A greement is determined by a court of\ncompetent jurisdiction to be unenforceable because it is overbroad, that provision shall be limited and enforced to the\nextent permitted by applicable law. Should any provision of this A greement be declared or determined by any court of\ncompetent jurisdiction to be unenforceable or invalid under applicable law, the validity of the remaining obligations will\nnot be affected thereby and only the unenforceable or invalid obligation will be deemed not to be a part of this\nAgreement.\nD. This greement is governed by, and will be construed in accordance with, the laws of the Commonwealth of\nVirginia without regard to its or any other jurisdiction's conflict-of-law provisions Executive agrees that any action\nrelated to or arising out of this A greement shall be brought exclusively in the United States District Court for the Eastern\nDistrict of Virginia, and Executive hereby irrevocably consents to personal jurisdiction and venue in such court and to\nservice of process by United States Mail or express courier service in any such action.\nE. If any dispute(s) arise(s) between Freddie Mac and Executive with respect to any matter which is the subject of this\nA greement, the prevailing party in such dispute(s) shall be entitled to recover from the other party all of its costs and\nexpenses, including its reasonable attorneys' fees.\nVIII. Prior Restrictive ovenant, Non-C Competition Non-Solicitation Agreements\nExcept as provided in Paragraph V(A), this greement does not supercede and prior agreement(s) between Executive and\nFreddie Mac. To the extent that any prior agreement(s) between Executive and Freddie Mac contain provisions regarding\nany of the subject matters discussed herein, the provisions that are more restrictive of Executive prevail.\nExecutive has been advised to discuss all aspects of this Agreement with Executive's private attorney. Executive\nacknowledges that Executive has carefully read and understands the terms and provisions of this Agreement and\nthat they are reasonable. Executive signs this Agreement voluntarily and accepts all obligations contained in this\nAgreement in exchange for the consideration to be given to Executive as outlined above, which Executive\nacknowledges is adequate and satisfactory, and which Executive further acknowledges Freddie Mac is not\notherwise obligated to provide to Executive. Neither Freddie Mac nor its agents, representatives, directors,\nofficers or employees have made any representations to\n6\nExecutive concerning the terms or effects of this Agreement, other than those contained in this Agreement.\nBy: /s/ Donald J. Bisenius\n[name of employee]\nFreddie Mac\nBy: /s/ Paul T. Peterson	Exhibit 10.53\nRESTRICTIVE COVENANT AND CONFIDENTIALITY AGREEMENT\nIn exchange for the mutual promises and consideration set forth below, this Restrictive Covenant and Confidentiality\nAgreement (“Agreement”) is entered into by and between the Federal Home Loan Mortgage Corporation (“Freddie Mac”\nor “Company”) and Donald J. Bisenius (“Executive”), effective as of this 11th day of March, 2001.\nI. Definitions\nThe following terms shall have the meanings indicated when used in this Agreement.\nA. Competitor: The following entities, and their respective parents, successors, subsidiaries, and affiliates are\ncompetitors: (i) Fannie Mae (ii) all Federal Home Loan Banks (including the Office of Finance); and (iii) such other\nentities to which Executive and the Company may agree in writing from time-to-time.\nB. Confidential Information: Information or materials in written, oral, magnetic, digital, computer, photographic, optical,\nelectronic, or other form, whether now existing or developed or created during the period of Executive’s employment\nwith Freddie Mac, that constitutes trade secrets and/or proprietary or confidential information. This information includes,\nbut is not limited to: (i) all information marked Proprietary or Confidential; (ii) information concerning the components,\ncapabilities, and attributes of Freddie Mac’s business plans, methods, and strategies; (iii) information relating to tactics,\nplans, or strategies concerning shareholders, investors, pricing, investment, marketing, sales, trading, funding, hedging,\nmodeling, sales and risk management; (iv) financial or tax information and analyses, including but not limited to,\ninformation concerning Freddie Mac’s capital structure and tax or financial planning; (v) confidential information about\nFreddie Mac’s customers, borrowers, employees, or others; (vi) pricing and quoting information, policies, procedures,\nand practices; (vii) confidential customer lists; (viii) proprietary algorithms; (ix) confidential contract terms;\n(x) confidential information concerning Freddie Mac’s policies, procedures, and practices or the way in which Freddie\nMac does business; (xi) proprietary or confidential data bases, including their structure and content; (xii) proprietary\nFreddie Mac business software, including its design, specifications and documentation; (xiii) information about Freddie\nMac products, programs, and services which has not yet been made public; (xiv) confidential information about Freddie\nMac’s dealings with third parties, including dealers, customers, vendors, and regulators; and/or (xv) confidential\ninformation belonging to third parties to which Executive received access in connection with Executive’s employment\nwith Freddie Mac. Confidential Information does not include general skills, experience, or knowledge acquired in\nconnection with Executive’s employment with Freddie Mac that otherwise are generally known to the public or within\nthe industry or trade in which Freddie Mac operates.\nC. Severance: Cash compensation paid pursuant to Freddie Mac’s Severance Policy.\n2\nD. Severance Policy: Freddie Mac Policy 3-254 .1 (Severance — Officers), or any subsequent and superceding severance\npolicy.\nII. Non-Competition\nExecutive recognizes that as a result of Executive’s employment with Freddie Mac, Executive has access to and\nknowledge of critically sensitive Confidential Information, the improper disclosure or use of which would result in grave\ncompetitive harm to Freddie Mac. Therefore, Executive agrees that neither during Executive’s employment with Freddie\nMac, nor for the twelve (12) months immediately following termination of Executive’s employment for any reason, will\nExecutive consider offers of employment from, seek or accept employment with, or otherwise directly or indirectly\nprovide professional services to any Competitor. Executive acknowledges and agrees that this covenant has unique,\nsubstantial and immeasurable value to Freddie Mac, that Executive has sufficient assets and skills to provide a livelihood\nfor Executive while this covenant remains in force, and that this covenant will not interfere with Executive’s ability to\nwork consistent with Executive’s experience, training and education. This non-competition covenant applies regardless\nof whether Executive’s employment is terminated by Executive, by Freddie Mac, or by a joint decision.\nIII. Non-Solicitation\nDuring Executive’s employment with Freddie Mac and for a period of twelve (12) months after Executive’s termination\ndate, Executive will not solicit, attempt to solicit or assist another in soliciting any Freddie Mac managerial employee\n(including manager-level, Executive-level, or officer-level employee) with whom Executive worked, or any employee\nwhom Executive directly or indirectly supervised at Freddie Mac, to leave the employee’s employment with Freddie Mac\nfor purposes of employment or for the rendering of professional services. This prohibition against solicitation does not\napply if Freddie Mac has notified the employee being solicited that his/her employment with the Company will be\nterminated pursuant to a corporate reorganization or reduction-in-force.\n3\nIV. Treatment of Confidential Information\nA. Non-Disclosure. Executive recognizes that Freddie Mac is engaged in an extremely competitive business and that, in\nthe course of performing Executive’s job duties, Executive will have access to and gain knowledge about Confidential\nInformation. Executive further recognizes the importance of carefully protecting this Confidential Information in order\nfor Freddie Mac to compete successfully. Therefore, Executive agrees that Executive will neither divulge Confidential\nInformation to any persons, including to other Freddie Mac employees who do not have a Freddie Mac business-related\nneed to know, nor make use of the Confidential Information for the Executive’s own benefit or for the benefit of anyone\nelse other than Freddie Mac. Executive further agrees to take all reasonable precautions to prevent the disclosure of\nConfidential Information to unauthorized persons or entities, and to comply with all Company policies, procedures, and\ninstructions regarding the treatment of such information.\nB. Return of Materials. Executive agrees that upon termination of Executive’s employment with Freddie Mac for any\nreason whatsoever, Executive will deliver to Executive’s immediate supervisor all tangible materials embodying\nConfidential Information, including, but not limited to, any documentation, records, listings, notes, files, data, sketches,\nmemoranda, models, accounts, reference materials, samples, machine-readable media, computer disks, tapes, and\nequipment which in any way relate to Confidential Information, whether developed by Executive or not. Executive\nfurther agrees not to retain any copies of any materials embodying Confidential Information.\nC. Post-Termination Obligations. Executive agrees that after the termination of Executive’s employment for any reason,\nExecutive will not use in any way whatsoever, nor disclose any Confidential Information learned or obtained in\nconnection with Executive’s employment with Freddie Mac without first obtaining the written permission of the Senior\nVice President of Human Resources of Freddie Mac. Executive further agrees that, in order to assure the continued\nconfidentiality of the Confidential Information, Freddie Mac may correspond with Executive’s future employers to\nadvise them generally of Executive’s exposure to and knowledge of Confidential Information, and Executive’s\nobligations and responsibilities regarding the Confidential Information. Executive understands and agrees that any such\ncontact may include a request for assurance and confirmation from such employer(s) that Executive will not disclose\nConfidential Information to such employer(s), nor will such employer(s) permit any use whatsoever of the Confidential\nInformation. To enable Freddie Mac to monitor compliance with the obligations imposed by this Agreement, Executive\nfurther agrees to inform in writing Freddie Mac’s Senior Vice President of Human Resources of the identity of\nExecutive’s subsequent employer(s) and Executive’s prospective job title and responsibilities prior to beginning\nemployment. Executive agrees that this notice requirement shall remain in effect for twelve (12) months following the\ntermination of Executive’s Freddie Mac employment.\n4\nV. Consideration Given to Executive\nIn exchange for agreeing to be employed by Freddie Mac on the terms, conditions, and restrictions stated in this\nAgreement, Freddie Mac will provide the Executive with the following consideration, each of which itself is adequate\nconsideration for Executive’s agreement to be bound by the provisions of this Agreement:\nA. Twelve-Month’s Severance. Executive acknowledges that under Freddie Mac’s Severance Policy, Executive may be\neligible to receive Severance upon termination of employment, the duration of which is within the discretion of Freddie\nMac. In exchange for Executive agreeing to be bound by this Agreement, Freddie Mac agrees to provide Executive with\nSeverance pursuant to the Severance Policy for a period of twelve (12) months following termination, provided the\ncircumstances of the Executive’s termination qualify for Severance under the Severance Policy. In the event that at the\ntime of termination, Executive occupies a position that is an “Executive Officer” of Freddie Mac as Freddie Mac\ninterprets that term to be defined in Section 1303(7) of the Federal Housing Enterprise Financial Safety and Soundness\nAct of 1992 and related administrative guidance, then Executive acknowledges that receipt of the twelve (12) months\nseverance under this paragraph is contingent upon any legally required approval from the Office of Federal Housing\nEnterprise Oversight (“OFHEO”). If such approval is not received, then Executive will not be eligible for Severance. The\ntwelve (12)-month Severance guarantee provided by this Paragraph V(A) is in place of, and not in addition to, Severance\nto which Executive would otherwise be entitled under any other agreement between Executive and Freddie Mac.\nB. Long-Term Incentive Grant. In exchange for Executive agreeing to be bound by this Agreement, Freddie Mac further\nagrees to provide Executive with a long-term incentive grant as approved by the Human Resources Committee of the\nFreddie Mac Board of Directors on March 2, 2001. Executive’s failure to execute and return this Agreement to Freddie\nMac on or before March 30, 2001, will result in Executive’s ineligibility for such long-term incentive grant otherwise\nprovided pursuant to this Paragraph V(B).\nVI. Reservation of Rights\nExecutive agrees that nothing in this Agreement constitutes a contract or commitment by Freddie Mac to continue\nExecutive’s employment in any job position for any period of time, nor does anything in this Agreement limit in any way\nFreddie Mac’s right to terminate Executive’s employment at any time for any reason.\nVII. Enforcement\nA. Executive acknowledges that Executive may be subject to discipline, up to and including termination of employment,\nfor Executive’s breach or threat of breach of any provision of this Agreement.\n5\nB. Executive agrees that irreparable injury will result to Freddie Mac’s business interests in the event of breach or\nthreatened breach of this Agreement, the full extent of Freddie Mac’s damages will be impossible to ascertain, and\nmonetary damages will not be an adequate remedy for Freddie Mac. Therefore, Executive agrees that in the event of a\nbreach or threat of breach of any provision(s) of this Agreement, Freddie Mac, in addition to any other relief available,\nshall be entitled to temporary, preliminary, and permanent equitable relief to restrain any such breach or threat of breach\nby Executive and all persons acting for and/or in concert with Executive, without the necessity of posting bond or\nsecurity, which Executive expressly waives.\nC. Executive agrees that each of Executive’s obligations specified in this Agreement is a separate and independent\ncovenant, and that all of Executive’s obligations set forth herein shall survive any termination, for any reason, of\nExecutive’s Freddie Mac employment. To the extent that any provision of this Agreement is determined by a court of\ncompetent jurisdiction to be unenforceable because it is overbroad, that provision shall be limited and enforced to the\nextent permitted by applicable law. Should any provision of this Agreement be declared or determined by any court of\ncompetent jurisdiction to be unenforceable or invalid under applicable law, the validity of the remaining obligations will\nnot be affected thereby and only the unenforceable or invalid obligation will be deemed not to be a part of this\nAgreement.\nD. This Agreement is governed by, and will be construed in accordance with, the laws of the Commonwealth of\nVirginia, without regard to its or any other jurisdiction’s conflict-of-law provisions. Executive agrees that any action\nrelated to or arising out of this Agreement shall be brought exclusively in the United States District Court for the Eastern\nDistrict of Virginia, and Executive hereby irrevocably consents to personal jurisdiction and venue in such court and to\nservice of process by United States Mail or express courier service in any such action.\nE. If any dispute(s) arise(s) between Freddie Mac and Executive with respect to any matter which is the subject of this\nAgreement, the prevailing party in such dispute(s) shall be entitled to recover from the other party all of its costs and\nexpenses, including its reasonable attorneys’ fees.\nVIII. Prior Restrictive Covenant, Non-Competition, Non-Solicitation Agreements\nExcept as provided in Paragraph V(A), this Agreement does not supercede and prior agreement(s) between Executive and\nFreddie Mac. To the extent that any prior agreement(s) between Executive and Freddie Mac contain provisions regarding\nany of the subject matters discussed herein, the provisions that are more restrictive of Executive prevail.\nExecutive has been advised to discuss all aspects of this Agreement with Executive’s private attorney. Executive\nacknowledges that Executive has carefully read and understands the terms and provisions of this Agreement and\nthat they are reasonable. Executive signs this Agreement voluntarily and accepts all obligations contained in this\nAgreement in exchange for the consideration to be given to Executive as outlined above, which Executive\nacknowledges is adequate and satisfactory, and which Executive further acknowledges Freddie Mac is not\notherwise obligated to provide to Executive. Neither Freddie Mac nor its agents, representatives, directors,\nofficers or employees have made any representations to\n6\nExecutive concerning the terms or effects of this Agreement, other than those contained in this Agreement.\nBy: /s/ Donald J. Bisenius\n[name of employee]\nFreddie Mac\nBy: /s/ Paul T. Peterson
+f802c577eba7b20817ce7db62eff1f8a.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 7 d426098dex99d3.htm EXHIBIT (D)(3)\nExhibit (d)(3)\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a\nDelaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties”\nand individually as a “Party”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity\ninterests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party\nand the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each\nParty, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’\nobligations regarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as\ndefined in Section 13 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a Transaction between the Parties; or\n(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13\nbelow).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nreasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential\nInformation.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”).\nNeither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider\nin connection with a Transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any\nparticular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any\nConfidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state\nsecurities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein\nor omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the\nconsummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to\nthe Recipient’s disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the\nRecipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate\nor negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the\nprovisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process or stock exchange rule.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed\nonly to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary\ncontained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any\nother Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or\npermitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the\nPermitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.\n(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid\nlegal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with\nwritten notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient\nand its Representatives will\n-2-\ncooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such\nprotective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in\nconnection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such\nConfidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to\nensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to\nthe Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s\nRepresentatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such\nConfidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to\nreturn or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the\ndelivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant\nto this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement with respect to such Confidential Information.\n6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither\nit nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for\nemployment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect\nsubsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its\ndirect or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or\nengaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.\n7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any\nof Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of\nany subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer,\nmerger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of\nSeller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as\nthose terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any\nsubsidiary of Seller;\n-3-\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any\nsubsidiary of Seller;\n(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of\nthis Section 7;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of\nthis Section 7;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision\nset forth in this Section 7;\nprovided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause\n(d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives\n(provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).\nThe standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a\nDefinitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision,\n(1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50%\nof the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions\n(whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated,\nwould result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party\nunrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the\nelection of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of\nDirectors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this\nSection 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in\nSection 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period\nwill not terminate or otherwise affect any of the other provisions of this letter agreement.\n-4-\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any\nsuch agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement\nbetween the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and\nto enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party\nor any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof\nor the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by\nmeans of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or\nprovisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party\nor by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party\nwill also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this\nAgreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The\nequitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to\nall other remedies available at law or in equity to the Parties.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with\nthe laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents\nand submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out\nof or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or\nrelating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n-5-\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or\nprojection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been\nmade available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon\nany information of the type referred to in clause (a) of this Section 12;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been\nmade available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed\nterms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the\nRecipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was\nnot and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other\nPerson with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information\nand without reference to or use of Confidential Information.\n13. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary\nor other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of\nany of such Party’s subsidiaries or other affiliates.\n-6-\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity\nor enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation\nor in any other jurisdiction.\n(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is\nnot, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret,\ncopyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent\napplication containing any claim to any subject matter derived from the Confidential Information of the Provider.\n(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not\nwaiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or\ndoctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and\n(ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit,\nproceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials\nand other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the\ncontinued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable\nprivilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine\nor other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense\ndoctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or\ndoctrines.\n(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any\ntime upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the\n-7-\nobligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of\nthree years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive\nindefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this\nAgreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and\neffect and survive any termination of this Agreement.\n(h) The Recipient agrees not to export, directly or indirectly, any U.S . source technical data acquired from the Provider or any products\nutilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.\n(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto,\nincluding legal notices, shall be in the English language only.\n[Signature Page Next]\n-8-\nARMO BIOSCIENCES, INC.\nELI LILLY AND COMPANY\nBy: /s/ Peter Van Vlasselaer\nBy: /s/ Timothy C. Dolan\nTitle: CEO\nTitle: V.P., Business Development\nAddress: 575 Chesapeake Dr.\nAddress: Lilly Corporate Center\nRedwood City, CA 94063\nIndianapolis, IN	EX-99.(D)(3) 7 d426098dex99d3.htm EXHIBIT (D)(3)\nExhibit (d)(3)\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a\nDelaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties”\nand individually as a “Party”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity\ninterests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party\nand the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each\nParty, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’\nobligations regarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as\ndefined in Section 13 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a Transaction between the Parties; or\n(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13\nbelow).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nreasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential\nInformation.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”).\nNeither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider\nin connection with a Transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any\nparticular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any\nConfidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state\nsecurities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein\nor omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the\nconsummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to\nthe Recipient’s disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the\nRecipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate\nor negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the\nprovisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process or stock exchange rule.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed\nonly to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary\ncontained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any\nother Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or\npermitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the\nPermitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.\n(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid\nlegal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with\nwritten notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient\nand its Representatives will\n-\ncooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such\nprotective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in\nconnection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such\nConfidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to\nensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to\nthe Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s\nRepresentatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such\nConfidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to\nreturn or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the\ndelivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant\nto this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement with respect to such Confidential Information.\n6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither\nit nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for\nemployment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect\nsubsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its\ndirect or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or\nengaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.\n7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any\nof Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of\nany subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer,\nmerger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of\nSeller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as\nthose terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any\nsubsidiary of Seller;\n3-\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any\nsubsidiary of Seller;\n(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of\nthis Section 7;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of\nthis Section 7;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision\nset forth in this Section 7;\nprovided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause\n(d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives\n(provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).\nThe standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a\nDefinitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision,\n(1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50%\nof the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions\n(whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated,\nwould result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party\nunrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the\nelection of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of\nDirectors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this\nSection 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in\nSection 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period\nwill not terminate or otherwise affect any of the other provisions of this letter agreement.\n4-\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any\nsuch agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement\nbetween the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and\nto enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party\nor any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof\nor the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by\nmeans of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or\nprovisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party\nor by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party\nwill also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this\nAgreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The\nequitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to\nall other remedies available at law or in equity to the Parties.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with\nthe laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents\nand submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out\nof or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or\nrelating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or\nprojection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been\nmade available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon\nany information of the type referred to in clause (a) of this Section 12;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been\nmade available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed\nterms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the\nRecipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was\nnot and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other\nPerson with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information\nand without reference to or use of Confidential Information.\n13. Miscellaneous.\na) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiar\npurp g y p y\nor other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of\nany of such Party’s subsidiaries or other affiliates.\n-6-\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity\nor enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation\nor in any other jurisdiction.\n(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is\nnot, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret,\ncopyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent\napplication containing any claim to any subject matter derived from the Confidential Information of the Provider.\n(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not\nwaiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or\ndoctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and\n(ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit,\nproceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials\nand other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the\ncontinued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable\nprivilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine\nor other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense\ndoctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or\ndoctrines.\n(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any\ntime upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the\n-7-\nobligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of\nthree years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive\nindefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this\nAgreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and\neffect and survive any termination of this Agreement.\n(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products\nutilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.\n(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto,\nincluding legal notices, shall be in the English language only.\n[Signature Page Next]\n8-\nARMO BIOSCIENCES, INC.\nBy:_/s/ Peter Van Vlasselaer Title: CEO\nAddress: 575 Chesapeake Dr. Redwood City, CA 94063\nELI LILLY AND COMPANY\nBy: /s/ Timothy C. Dolan\nTitle: V.P., Business Development Address: Lilly Corporate Center Indianapolis, IN	EX-99.(D)(3) 7 d426098dex99d3.htm EXHIBIT (D)(3)\nExhibit (d)(3)\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT ("Agreement") is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a\nDelaware corporation ("Seller"), and Eli Lilly and Company, an Indiana corporation ("Buyer" and with Seller referred to collectively as the "Parties"\nand individually as a "Party").\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer's acquisition of all of the equity\ninterests in Seller (a "Transaction"), each Party has either requested or may request access to certain non-public information regarding the other Party\nand the other Party's subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the "Provider"; and each\nParty, in its capacity as a recipient of information, is referred to in this Agreement as the "Recipient".) This Agreement sets forth the Parties'\nobligations regarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient's Representatives (as\ndefined in Section 13 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider's Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a Transaction between the Parties; or\n(b) subject to Section 4 below, disclose any of the Provider's Confidential Information to any other Person (as defined in Section 13\nbelow).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nreasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider's Confidentia\nInformation.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider's Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the "Provider Contact Person").\nNeither the Recipient nor any of the Recipient's Representatives will contact or otherwise communicate with any other Representative of the Provider\nin connection with a Transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. Neither the Provider nor any of the Provider's Representatives will be under any obligation to make any\nparticular Confidential Information of the Provider available to the Recipient or any of the Recipient's Representatives or to supplement or update any\nConfidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider's Confidential Information, and neither the Provider nor any of its Representatives will have any liability to\nthe\nRecipient or to any of the Recipient's Representatives on any basis (including, without limitation, in contract, tort or under United\nStates\nfederal\nor\nstate\nsecurities laws or otherwise) relating to or resulting from the use of any of the Provider's Confidential Information or any inaccuracies or errors therein\nor omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the\nconsummation of a Transaction between the Parties (a "Definitive Agreement") will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to\nthe Recipient's disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the\nRecipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate\nor negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the\nprovisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process or stock exchange rule.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed\nonly to specified Representatives of the Recipient (such notice, a "Permitted Representatives Notice"), then, notwithstanding anything to the contrary\ncontained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any\nother Representative of the Recipient (any such other Representative, an "Impermissible Representative"). For clarity, if the Recipient disclosed, or\npermitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient's receipt of the\nPermitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.\n(c) If the Recipient or any of the Recipient's Representatives is required by law or governmental regulation or by subpoena or other valid\nlegal process to disclose any of the Provider's Confidential Information to any Person, then the Recipient will promptly provide the Provider with\nwritten notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient\nand its Representatives will\n-2-\ncooperate with the Provider and the Provider's Representatives (at the Provider's sole expense) in any attempt by the Provider to obtain any such\nprotective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy\nin\nconnection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such\nConfidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to\nensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider's request, the Recipient and the Recipient's Representatives will promptly deliver to\nthe Provider any of the Provider's Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient's\nRepresentatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such\nConfidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required\nto\nreturn or destroy copies of Confidential Information created pursuant to Recipient's automatic archiving and back-up procedures. Notwithstanding\nthe\ndelivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant\nto this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement with respect to such Confidential Information.\n6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither\nit\nnor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for\nemployment any employee of the other Party (or any of such other Party's direct or indirect subsidiaries) with whom it (or any of its direct or indirect\nsubsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its\ndirect or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or\nengaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.\n7.\nStandstill Provision. During the 12 month period commencing on the date of this Agreement (the "Standstill Period"), neither Buyer nor any\nof Buyer's subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of\nany subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer,\nmerger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of\nSeller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any "solicitation" of "proxies" (as\nthose terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any\nsubsidiary of Seller;\n-3-\n(b) form, join or participate in a "group" (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any\nsubsidiary of Seller;\n(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of\nthis Section 7;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of\nthis Section 7;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Seller or any of Seller's Representatives amend, waive or consider the amendment or waiver of any provision\nset forth in this Section 7;\nprovided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause\n(d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives\n(provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).\nThe standstill provisions of this Section 7 shall not apply to the Parties' entry into or consummation of the transactions contemplated by a\nDefinitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision,\n(1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than\n50%\nof the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions\n(whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated,\nwould result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party\nunrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the\nelection of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of\nDirectors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this\nSection 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in\nSection 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period\nwill not terminate or otherwise affect any of the other provisions of this letter agreement.\n-4-\n8.\nNo\nObligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany\nsuch\nagreement\nor\ntransaction\nwith\nthe\nother\nParty.\nEach\nParty\nrecognizes\nthat,\nexcept\nas\nexpressly\nprovided\nin\nany\nlegally\nbinding\nwritten\nagreement\nbetween the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and\nto enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party\nor any of the other Party's Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill\noperate\nas\na\nwaiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof\nor the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by\nmeans of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or\nprovisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party\nor by any of such Party's Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party\nwill also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this\nAgreement by the other Party or any of the other Party's Representatives (without the need for posting a bond or providing other security). The\nequitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition\nto\nall other remedies available at law or in equity to the Parties.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with\nthe laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents\nand\nsubmits\nto the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out\nof or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally\nwaives\nthe right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of\nor\nrelating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider's "Confidential Information" will be deemed to include only the\nfollowing:\n-5-\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or\nprojection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been\nmade available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon\nany information of the type referred to in clause (a) of this Section 12;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been\nmade available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed\nterms of any such transaction.\nHowever, the Provider's "Confidential Information" will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient's Representatives;\n(ii) any information that was in the Recipient's possession prior to the time it was first made available to the Recipient or any of the\nRecipient's Representatives by or on behalf of the Provider or any of the Provider's Representatives, provided that the source of such information was\nnot and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other\nPerson with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider's Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidentia Information\nand without reference to or use of Confidential Information.\n13. Miscellaneous.\n(a) For purposes of this Agreement, a Party's "Representatives" will be deemed to include each Person that is or becomes (i) a subsidiary\nor other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of\nany of such Party's subsidiaries or other affiliates.\n-6-\n(b) The term "Person," as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity\nor enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation\nor in any other jurisdiction.\n(d) By making Confidential Information or other information available to the Recipient or the Recipient's Representatives, the Provider is\nnot, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret,\ncopyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient's Representatives shall file any patent\napplication containing any claim to any subject matter derived from the Confidential Information of the Provider.\n(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective\naction, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not\nwaiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or\ndoctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and\n(ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit,\nproceeding, investigation, arbitration or dispute and that it is the Parties' mutual desire, intention and understanding that the sharing of such materials\nand other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish\nthe\ncontinued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable\nprivilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine\nor other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense\ndoctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or\ndoctrines.\n(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any\ntime upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the\n-7-\nobligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of\nthree years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive\nindefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this\nAgreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and\neffect and survive any termination of this Agreement.\n(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products\nutilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.\n(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto,\nincluding legal notices, shall be in the English language only.\n[Signature Page Next]\n-8-\nARMO BIOSCIENCES, INC.\nELI LILLY AND COMPANY\nBy: /s/ Peter Van Vlasselaer\nBy: /s/ Timothy. C. Dolan\nTitle: CEO\nTitle: V.P., Business Development\nAddress: 575 Chesapeake Dr.\nAddress: Lilly Corporate Center\nRedwood City, CA 94063\nIndianapolis, IN	EX-99.(D)(3) 7 d426098dex99d3.htm EXHIBIT (D)(3)\nExhibit (d)(3)\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a\nDelaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties”\nand individually as a “Party”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity\ninterests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party\nand the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each\nParty, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’\nobligations regarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as\ndefined in Section 13 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a Transaction between the Parties; or\n(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13\nbelow).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nreasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential\nInformation.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”).\nNeither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider\nin connection with a Transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any\nparticular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any\nConfidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state\nsecurities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein\nor omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the\nconsummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to\nthe Recipient’s disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the\nRecipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate\nor negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the\nprovisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process or stock exchange rule.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed\nonly to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary\ncontained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any\nother Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or\npermitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the\nPermitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.\n(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid\nlegal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with\nwritten notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient\nand its Representatives will\n-2-\ncooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such\nprotective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in\nconnection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such\nConfidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to\nensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to\nthe Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s\nRepresentatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such\nConfidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to\nreturn or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the\ndelivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant\nto this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement with respect to such Confidential Information.\n6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither\nit nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for\nemployment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect\nsubsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its\ndirect or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or\nengaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.\n7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any\nof Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of\nany subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer,\nmerger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of\nSeller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as\nthose terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any\nsubsidiary of Seller;\n-3-\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any\nsubsidiary of Seller;\n(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of\nthis Section 7;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of\nthis Section 7;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision\nset forth in this Section 7;\nprovided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause\n(d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives\n(provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).\nThe standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a\nDefinitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision,\n(1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50%\nof the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions\n(whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated,\nwould result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party\nunrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the\nelection of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of\nDirectors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this\nSection 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in\nSection 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period\nwill not terminate or otherwise affect any of the other provisions of this letter agreement.\n-4-\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any\nsuch agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement\nbetween the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and\nto enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party\nor any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof\nor the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by\nmeans of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or\nprovisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party\nor by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party\nwill also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this\nAgreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The\nequitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to\nall other remedies available at law or in equity to the Parties.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with\nthe laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents\nand submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out\nof or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or\nrelating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n-5-\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or\nprojection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been\nmade available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon\nany information of the type referred to in clause (a) of this Section 12;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been\nmade available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed\nterms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the\nRecipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was\nnot and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other\nPerson with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information\nand without reference to or use of Confidential Information.\n13. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary\nor other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of\nany of such Party’s subsidiaries or other affiliates.\n-6-\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity\nor enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation\nor in any other jurisdiction.\n(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is\nnot, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret,\ncopyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent\napplication containing any claim to any subject matter derived from the Confidential Information of the Provider.\n(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not\nwaiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or\ndoctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and\n(ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit,\nproceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials\nand other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the\ncontinued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable\nprivilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine\nor other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense\ndoctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or\ndoctrines.\n(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any\ntime upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the\n-7-\nobligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of\nthree years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive\nindefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this\nAgreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and\neffect and survive any termination of this Agreement.\n(h) The Recipient agrees not to export, directly or indirectly, any U.S . source technical data acquired from the Provider or any products\nutilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.\n(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto,\nincluding legal notices, shall be in the English language only.\n[Signature Page Next]\n-8-\nARMO BIOSCIENCES, INC.\nELI LILLY AND COMPANY\nBy: /s/ Peter Van Vlasselaer\nBy: /s/ Timothy C. Dolan\nTitle: CEO\nTitle: V.P., Business Development\nAddress: 575 Chesapeake Dr.\nAddress: Lilly Corporate Center\nRedwood City, CA 94063\nIndianapolis, IN
+f911471f4ef0f41fe53d32313bc28e00.pdf	effective_date jurisdiction party term	Exhibit “A”\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “NDA”) dated as of November 1, 2010 is entered into by and between Yew Bio-Pharm Group, Inc.\n(“YBP” and, together with its wholly-owned subsidiaries, the “Company”) and Richard Lo (the “Recipient”), and sets forth the terms and conditions\non which the Company is willing to disclose certain material non-public information about the Company to the Consultant. All terms not defined\nherein shall have the meanings assigned to them in that certain Consultant Agreement dated of even date herewith (the “Agreement”).\n1. Purpose. The Recipient is being retained pursuant to the Agreement to provide certain Services during the Term. In connection therewith,\nthe Company will disclose to the Recipient certain confidential financial and other business information which the Company requires the Recipient\nto treat as confidential.\n2. “Confidential Information” means any information disclosed to the Recipient by the Company, either directly or indirectly in writing, orally\nor by inspection of tangible objects, including without limitation documents, prototypes, and historical and forecasted financial information.\nConfidential Information may also include information disclosed to the Company by third parties. Confidential Information shall not, however,\ninclude any information which The Recipient can establish by written documentation (i) was publicly known and made generally available in the\npublic domain prior to the time of disclosure to the Recipient by the Company; (ii) becomes publicly known and made generally available after\ndisclosure to the Recipient by the Company through no action or inaction of the Recipient; (iii) is in the possession of the Recipient, without\nconfidentiality restrictions, at the time of disclosure by the Company as shown by the Recipient’s files and records immediately prior to the time of\ndisclosure; (iv) is developed independently of the Confidential Information, as shown by written records prepared contemporaneously with such\nindependent development; or (v) is disclosed pursuant to the requirement of a government agency or judicial body having jurisdiction over the\nRecipient.\n3. Non-Use and Nondisclosure. The Recipient agrees not to use any Confidential Information for any purpose except to provide the Services\nunder the Agreement. The Recipient agrees not to disclose any Confidential Information to third parties or to employees or agents of the Recipient,\nexcept to those employees or agents who are required to have such information in order to assist the Recipient provide the Services under the\nAgreement. The Recipient agrees to cause each third party receiving any Confidential Information to enter into a separate non-disclosure agreement\nwith the Company prior to any disclosure by the Recipient of Confidential Information to such other persons.\n6\n4. Maintenance of Confidentiality. The Recipient agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure\nand unauthorized use of the Confidential Information. Without limiting the foregoing, the Recipient shall take at least those measures that the\nRecipient takes to protect its own confidential information of a similar nature. The Recipient shall immediately notify the Company in the event of\nany unauthorized use or disclosure of the Confidential Information.\n5. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which are in the\npossession of the Recipient shall be and remain the property of the Company and shall be promptly returned to the Company upon request upon the\ntermination of the Agreement or at any other time.\n6. No License. Nothing in this NDA is intended to grant any rights to the Recipient under any patent, copyright or other proprietary rights of\nthe Company, nor shall this NDA grant the Recipient any rights in or to Confidential Information except as expressly set forth herein.\n7. Term. This NDA shall survive until such time as all Confidential Information disclosed hereunder becomes publicly known and made\ngenerally available through no action or inaction of the Recipient.\n8. Remedies. The Recipient agrees that any violation or threatened violation of this NDA will cause irreparable injury to the Company,\nentitling the Company to obtain injunctive relief in addition to all legal remedies.\n9. Miscellaneous. This NDA shall bind and inure to the benefit of the parties hereto and their successors and assigns. This NDA shall be\ngoverned by the laws of the State of Nevada, without reference to conflict of laws principles. This document contains the entire agreement between\nthe parties with respect to the subject matter hereof. Any failure to enforce any provision of this NDA shall not constitute a waiver thereof or of any\nother provision hereof. This NDA may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.\nIN WITNESS WHEREOF, YBP and the Recipient have executed or caused their duly authorized officers to execute this NDA as of the date\nfirst above written.\nYEW BIO-PHARM GROUP, INC.\n(“YBP”)\nBy /s/ Zhi Guo Wang\nName: Zhi Guo Wang\nTitle: President\nRICHARD LO (“RECIPIENT”)\n/s/ Richard Lo\nRichard Lo\n7	Exhibit “A”\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “NDA”) dated as of November 1, 2010 is entered into by and between Yew Bio-Pharm Group, Inc.\n(“YBP” and, together with its wholly-owned subsidiaries, the “Company”) and Richard Lo (the “Recipient”), and sets forth the terms and conditions\non which the Company is willing to disclose certain material non-public information about the Company to the Consultant. All terms not defined\nherein shall have the meanings assigned to them in that certain Consultant Agreement dated of even date herewith (the “Agreement”).\n1. Purpose. The Recipient is being retained pursuant to the Agreement to provide certain Services during the Term. In connection therewith,\nthe Company will disclose to the Recipient certain confidential financial and other business information which the Company requires the Recipient\nto treat as confidential.\n2. “Confidential Information” means any information disclosed to the Recipient by the Company, either directly or indirectly in writing, orally\nor by inspection of tangible objects, including without limitation documents, prototypes, and historical and forecasted financial information.\nConfidential Information may also include information disclosed to the Company by third parties. Confidential Information shall not, however,\ninclude any information which The Recipient can establish by written documentation (i) was publicly known and made generally available in the\npublic domain prior to the time of disclosure to the Recipient by the Company; (ii) becomes publicly known and made generally available after\ndisclosure to the Recipient by the Company through no action or inaction of the Recipient; (iii) is in the possession of the Recipient, without\nconfidentiality restrictions, at the time of disclosure by the Company as shown by the Recipient’s files and records immediately prior to the time of\ndisclosure; (iv) is developed independently of the Confidential Information, as shown by written records prepared contemporaneously with such\nindependent development; or (v) is disclosed pursuant to the requirement of a government agency or judicial body having jurisdiction over the\nRecipient.\n3. Non-Use and Nondisclosure. The Recipient agrees not to use any Confidential Information for any purpose except to provide the Services\nunder the Agreement. The Recipient agrees not to disclose any Confidential Information to third parties or to employees or agents of the Recipient,\nexcept to those employees or agents who are required to have such information in order to assist the Recipient provide the Services under the\nAgreement. The Recipient agrees to cause each third party receiving any Confidential Information to enter into a separate non-disclosure agreement\nwith the Company prior to any disclosure by the Recipient of Confidential Information to such other persons.\n6\n4. Maintenance of Confidentiality. The Recipient agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure\nand unauthorized use of the Confidential Information. Without limiting the foregoing, the Recipient shall take at least those measures that the\nRecipient takes to protect its own confidential information of a similar nature. The Recipient shall immediately notify the Company in the event of\nany unauthorized use or disclosure of the Confidential Information.\n5. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which are in the\npossession of the Recipient shall be and remain the property of the Company and shall be promptly returned to the Company upon request upon the\ntermination of the Agreement or at any other time.\n6. No License. Nothing in this NDA is intended to grant any rights to the Recipient under any patent, copyright or other proprietary rights of\nthe Company, nor shall this NDA grant the Recipient any rights in or to Confidential Information except as expressly set forth herein.\n7. Term. This NDA shall survive until such time as all Confidential Information disclosed hereunder becomes publicly known and made\ngenerally available through no action or inaction of the Recipient.\n8. Remedies. The Recipient agrees that any violation or threatened violation of this NDA will cause irreparable injury to the Company,\nentitling the Company to obtain injunctive relief in addition to all legal remedies.\n9. Miscellaneous. This NDA shall bind and inure to the benefit of the parties hereto and their successors and assigns. This NDA shall be\ngoverned by the laws of the State of Nevada, without reference to conflict of laws principles. This document contains the entire agreement between\nthe parties with respect to the subject matter hereof. Any failure to enforce any provision of this NDA shall not constitute a waiver thereof or of any\nother provision hereof. This NDA may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.\nIN WITNESS WHEREOF, YBP and the Recipient have executed or caused their duly authorized officers to execute this NDA as of the date\nfirst above written.\nYEW BIO-PHARM GROUP, INC.\n(“YBP”)\nBy /s/ Zhi Guo Wang\nName: Zhi Guo Wang\nTitle: President\nRICHARD LO (“RECIPIENT”)\n/s/ Richard Lo\nRichard Lo	Exhibit "A"\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this "NDA") dated as of November 1, 2010 is entered into by and between Yew Bio-Pharm Group, Inc.\n("YBP" and, together with its wholly-owned subsidiaries, the "Company") and Richard Lo (the "Recipient"), and sets forth the terms and conditions\non\nwhich the Company is willing to disclose certain material non-public information about the Company to the Consultant. All terms not defined\nherein shall have the meanings assigned to them in that certain Consultant Agreement dated of even date herewith (the "Agreement").\n1. Purpose. The Recipient is being retained pursuant to the Agreement to provide certain Services during the Term. In connection therewith,\nthe Company will disclose to the Recipient certain confidential financial and other business information which the Company requires the Recipient\nto treat as confidential.\n2. "Confidential Information" means any information disclosed to the Recipient by the Company, either directly or indirectly in writing, orally\nor by inspection of tangible objects, including without limitation documents, prototypes, and historical and forecasted financial information.\nConfidential Information may also include information disclosed to the Company by third parties. Confidential Information shall not, however,\ninclude any information which The Recipient can establish by written documentation (i) was publicly known and made generally available in the\npublic domain prior to the time of disclosure to the Recipient by the Company; (ii) becomes publicly known and made generally available after\ndisclosure to the Recipient by the Company through no action or inaction of the Recipient; (iii) is in the possession of the Recipient, without\nconfidentiality restrictions, at the time of disclosure by the Company as shown by the Recipient's files and records immediately prior to the time of\ndisclosure; (iv) is developed independently of the Confidential Information, as shown by written records prepared contemporaneously with such\nindependent development; or (v) is disclosed pursuant to the requirement of a government agency or judicial body having jurisdiction over the\nRecipient.\n3. Non-Use and Nondisclosure. The Recipient agrees not to use any Confidential Information for any purpose except to provide the Services\nunder the Agreement. The Recipient agrees not to disclose any Confidential Information to third parties or to employees or agents of the Recipient,\nexcept to those employees or agents who are required to have such information in order to assist the Recipient provide the Services under the\nAgreement. The Recipient agrees to cause each third party receiving any Confidential Information to enter into a separate non-disclosure agreement\nwith the Company prior to any disclosure by the Recipient of Confidential Information to such other persons.\n6\n4. Maintenance of Confidentiality.. The Recipient agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure\nand unauthorized use of the Confidential Information. Without limiting the foregoing, the Recipient shall take at least those measures that the\nRecipient takes to protect its own confidential information of a similar nature. The Recipient shall immediately notify the Company in the event of\nany unauthorized use or disclosure of the Confidential Information.\n5. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which are in the\npossession of the Recipient shall be and remain the property of the Company and shall be promptly returned to the Company upon request upon the\ntermination of the Agreement or at any other time.\n6. No License. Nothing in this NDA is intended to grant any rights to the Recipient under any patent, copyright or other proprietary rights of\nthe Company, nor shall this NDA grant the Recipient any rights in or to Confidential Information except as expressly set forth herein.\n7. Term. This NDA shall survive until such time as all Confidential Information disclosed hereunder becomes publicly known and made\ngenerally available through no action or inaction of the Recipient.\n8. Remedies. The Recipient agrees that any violation or threatened violation of this NDA will cause irreparable injury to the Company,\nentitling the Company to obtain injunctive relief in addition to all legal remedies.\n9. Miscellaneous. This NDA shall bind and inure to the benefit of the parties hereto and their successors and assigns This NDA shall be\ngoverned by the laws of the State of Nevada, without reference to conflict of laws principles. This document contains the entire agreement between\nthe parties with respect to the subject matter hereof. Any failure to enforce any provision of this NDA shall not constitute a waiver thereof or of any\nother provision hereof. This NDA may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.\nIN WITNESS WHEREOF, YBP and the Recipient have executed or caused their duly authorized officers to execute this NDA as of the date\nfirst above written.\nYEW BIO-PHARM GROUP, INC.\n("YBP")\nBy\n/s/ Zhi Guo Wang\nName: Zhi Guo Wang\nTitle: President\nRICHARD LO ("RECIPIENT")\n/s/ Richard Lo\nRichard Lo\n7	Exhibit “A”\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “NDA”) dated as of November 1, 2010 is entered into by and between Yew Bio-Pharm Group, Inc.\n(“YBP” and, together with its wholly-owned subsidiaries, the “Company”) and Richard Lo (the “Recipient”), and sets forth the terms and conditions\non which the Company is willing to disclose certain material non-public information about the Company to the Consultant. All terms not defined\nherein shall have the meanings assigned to them in that certain Consultant Agreement dated of even date herewith (the “Agreement”).\n1. Purpose. The Recipient is being retained pursuant to the Agreement to provide certain Services during the Term. In connection therewith,\nthe Company will disclose to the Recipient certain confidential financial and other business information which the Company requires the Recipient\nto treat as confidential.\n2. “Confidential Information” means any information disclosed to the Recipient by the Company, either directly or indirectly in writing, orally\nor by inspection of tangible objects, including without limitation documents, prototypes, and historical and forecasted financial information.\nConfidential Information may also include information disclosed to the Company by third parties. Confidential Information shall not, however,\ninclude any information which The Recipient can establish by written documentation (i) was publicly known and made generally available in the\npublic domain prior to the time of disclosure to the Recipient by the Company; (ii) becomes publicly known and made generally available after\ndisclosure to the Recipient by the Company through no action or inaction of the Recipient; (iii) is in the possession of the Recipient, without\nconfidentiality restrictions, at the time of disclosure by the Company as shown by the Recipient’s files and records immediately prior to the time of\ndisclosure; (iv) is developed independently of the Confidential Information, as shown by written records prepared contemporaneously with such\nindependent development; or (v) is disclosed pursuant to the requirement of a government agency or judicial body having jurisdiction over the\nRecipient.\n3. Non-Use and Nondisclosure. The Recipient agrees not to use any Confidential Information for any purpose except to provide the Services\nunder the Agreement. The Recipient agrees not to disclose any Confidential Information to third parties or to employees or agents of the Recipient,\nexcept to those employees or agents who are required to have such information in order to assist the Recipient provide the Services under the\nAgreement. The Recipient agrees to cause each third party receiving any Confidential Information to enter into a separate non-disclosure agreement\nwith the Company prior to any disclosure by the Recipient of Confidential Information to such other persons.\n6\n4. Maintenance of Confidentiality. The Recipient agrees that it shall take all reasonable measures to protect the secrecy of and avoid disclosure\nand unauthorized use of the Confidential Information. Without limiting the foregoing, the Recipient shall take at least those measures that the\nRecipient takes to protect its own confidential information of a similar nature. The Recipient shall immediately notify the Company in the event of\nany unauthorized use or disclosure of the Confidential Information.\n5. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which are in the\npossession of the Recipient shall be and remain the property of the Company and shall be promptly returned to the Company upon request upon the\ntermination of the Agreement or at any other time.\n6. No License. Nothing in this NDA is intended to grant any rights to the Recipient under any patent, copyright or other proprietary rights of\nthe Company, nor shall this NDA grant the Recipient any rights in or to Confidential Information except as expressly set forth herein.\n7. Term. This NDA shall survive until such time as all Confidential Information disclosed hereunder becomes publicly known and made\ngenerally available through no action or inaction of the Recipient.\n8. Remedies. The Recipient agrees that any violation or threatened violation of this NDA will cause irreparable injury to the Company,\nentitling the Company to obtain injunctive relief in addition to all legal remedies.\n9. Miscellaneous. This NDA shall bind and inure to the benefit of the parties hereto and their successors and assigns. This NDA shall be\ngoverned by the laws of the State of Nevada, without reference to conflict of laws principles. This document contains the entire agreement between\nthe parties with respect to the subject matter hereof. Any failure to enforce any provision of this NDA shall not constitute a waiver thereof or of any\nother provision hereof. This NDA may not be amended, nor any obligation waived, except by a writing signed by both parties hereto.\nIN WITNESS WHEREOF, YBP and the Recipient have executed or caused their duly authorized officers to execute this NDA as of the date\nfirst above written.\nYEW BIO-PHARM GROUP, INC.\n(“YBP”)\nBy /s/ Zhi Guo Wang\nName: Zhi Guo Wang\nTitle: President\nRICHARD LO (“RECIPIENT”)\n/s/ Richard Lo\nRichard Lo\n7
+f94e22c9bf36ed2c9652a1a7a236e397.pdf	effective_date jurisdiction party	EXHIBIT D\nTO THE RENOVACARE, INC.— ROGER ESTEBAN-VIVES\nCONSULTING AGREEMENT\nDATED\nJUNE 4, 2019\n****\nConfidential information and\ninvention assignment agreement\nRENOVACARE, INC.\nCONFIDENTIAL INFORMATION AND\nINVENTION ASSIGNMENT AGREEMENT\nConfidential Information and Invention Assignment Agreement is dated as of June 4, 2019 by and between\nRenovaCare, Inc., a Nevada corporation (the “RCAR”), and Roger Esteban-Vives, an individual having his place of\nbusiness in London, England (“Consultant”).\nAs a condition of becoming retained (or Consultant’s consulting relationship being continued) by RCAR, or any of\nits current or future subsidiaries, affiliates, successors or assigns (collectively, the “Company”), and in consideration of\nConsultant’s consulting relationship with the Company and receipt of the compensation now and hereafter paid by the\nCompany, the receipt of Confidential Information (as defined below) while associated with the Company, and other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Consultant hereby agrees to\nthe following:\n1.\nRelationship. This Confidential Information and Invention Assignment Agreement (this\n“Agreement”) will apply to Consultant’s consulting relationship with the Company. If that relationship ends and the\nCompany, within one (1) year thereafter, either employs Consultant or re-engages Consultant as a consultant, this\nAgreement will also apply to such later employment or consulting relationship, unless the parties hereto otherwise agree\nin writing. Any employment or consulting relationship between the parties hereto, whether commenced prior to, upon or\nafter the date of this Agreement, is referred to herein as the “Relationship.”\n-2-\n2.\nApplicability to Past Activities. The Company and Consultant acknowledge that Consultant may\nhave performed work, activities, services or made efforts on behalf of or for the benefit of the Company, or related to the\ncurrent or prospective business of the Company in anticipation of Consultant’s involvement with the Company, that would\nhave been “Services” if performed during the term of this Agreement, for a period of time prior to the Effective Date of this\nAgreement (the “Prior Consulting Period”). Accordingly, if and to the extent that, during the Prior Consulting Period: (i)\nConsultant received access to any information from or on behalf of the Company that would have been Confidential\nInformation (as defined below) if Consultant received access to such information during the term of this Agreement; or (ii)\nConsultant (a) conceived, created, authored, invented, developed or reduced to practice any item (including any\nintellectual property rights with respect thereto) on behalf of or for the benefit of the Company, or related to the current or\nprospective business of the Company in anticipation of Consultant’s involvement with the Company, that would have\nbeen an Invention (as defined below) if conceived, created, authored, invented, developed or reduced to practice during\nthe term of this Agreement; or (b) incorporated into any such item any pre-existing invention, improvement, development,\nconcept, discovery or other proprietary information that would have been a Prior Invention (as defined below) if\nincorporated into such item during the term of this Agreement; then any such information shall be deemed “Confidential\nInformation” hereunder and any such item shall be deemed an “Invention” or “Prior Invention” hereunder, and this\nAgreement shall apply to such activities, information or item as if disclosed, conceived, created, authored, invented,\ndeveloped or reduced to practice during the term of this Agreement.\n3.\nExecutive Services Consulting Agreement. Consultant has entered into an agreement with the\nCompany on or about the date hereof to provide various services to the Company (the “Consulting Agreement”). The\nservices rendered by Consultant under the Consulting Agreement are referred to herein as the “Services” and this\nAgreement is intended to supplement and form an integral part of the Consulting Agreement.\n4.\nConfidential Information.\n(a)\nProtection of Information. Consultant understands that during the Relationship, the\nCompany intends to provide Consultant with certain information, including Confidential Information (as defined below),\nwithout which Consultant would not be able to perform Consultant’s duties to the Company. At all times during the term of\nthe Relationship and thereafter, Consultant shall hold in strictest confidence, and not use, except for the benefit of the\nCompany to the extent necessary to perform the Services, and not disclose to any person, firm, corporation or other\nentity, without written authorization from the Company in each instance, any Confidential Information that Consultant\nobtains from the Company or otherwise obtains, accesses or creates in connection with, or as a result of, the Services\nduring the term of the Relationship, whether or not during working hours, until such Confidential Information becomes\npublicly and widely known and made generally available through no wrongful act of Consultant or of others who were\nunder confidentiality obligations as to the item or items involved. Consultant shall not make copies of such Confidential\nInformation except as authorized by the Company or in the ordinary course of the provision of Services.\n-3-\n(b)\nConfidential Information. Consultant understands that “Confidential Information” means\nany and all information and physical manifestations thereof not generally known or available outside the Company and\ninformation and physical manifestations thereof entrusted to the Company in confidence by third parties, whether or not\nsuch information is patentable, copyrightable or otherwise legally protectable. Confidential Information includes, without\nlimitation: (i) Company Inventions (as defined below); and (ii) technical data, trade secrets, know-how, research, product\nor service ideas or plans, software codes and designs, algorithms, developments, inventions, patent applications,\nlaboratory notebooks, processes, formulas, techniques, biological materials, mask works, engineering designs and\ndrawings, hardware configuration information, agreements with third parties, lists of, or information relating to, employees\nand consultants of the Company (including, but not limited to, the names, contact information, jobs, compensation, and\nexpertise of such employees and consultants), lists of, or information relating to, suppliers and customers (including, but\nnot limited to, customers of the Company on whom Consultant called or with whom Consultant became acquainted\nduring the Relationship), price lists, pricing methodologies, cost data, market share data, marketing plans, licenses,\ncontract information, business plans, financial forecasts, historical financial data, budgets or other business information\ndisclosed to Consultant by the Company either directly or indirectly, whether in writing, electronically, orally, or by\nobservation.\nThe Consultant understands that the above list is not exhaustive, and that Confidential Information also includes\nother information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a\nreasonable person to be confidential or proprietary in the context and circumstances in which the information is known or\nused. The Consultant understands and agrees that Confidential Information developed by him or her in the course of his\nengagement with the Company shall be subject to the terms and conditions of this Agreement as if the Company\nfurnished the same Confidential Information to the Consultant in the first instance. Confidential Information shall not\ninclude information that is generally available to and known by the public, provided that such disclosure to the public is\nthrough no direct or indirect fault of the Consultant or person(s) acting on the Consultant’s behalf.\n(c)\nThird Party Information. Consultant’s agreements in this Section 4 are intended to be for\nthe benefit of the Company and any third party that has entrusted information or physical material to the Company in\nconfidence. During the term of the Relationship and thereafter, Consultant will not improperly use or disclose to the\nCompany any confidential, proprietary or secret information of Consultant’s former clients or any other person, and\nConsultant will not bring any such information onto the Company’s property or place of business.\n(d)\nOther Rights. This Agreement is intended to supplement, and not to supersede, any rights\nthe Company may have in law or equity with respect to the protection of trade secrets or confidential or proprietary\ninformation.\n(e)\nU.S . Defend Trade Secrets Act. Notwithstanding the foregoing, the U.S . Defend Trade\nSecrets Act of 2016 (“DTSA”) provides that an individual shall not be held criminally or civilly liable under any federal or\nstate trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state, or local\ngovernment official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or\ninvestigating a suspected violation of law; or (iii) in a complaint or other document filed in a lawsuit or other proceeding, if\nsuch filing is made under seal. In addition, DTSA provides that an individual who files a lawsuit for retaliation by an\nemployer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use\nthe trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret\nunder seal; and (B) does not disclose the trade secret, except pursuant to court order.\n-4-\n(f)\nDisclosure Required by Law. Nothing herein shall be construed to prevent disclosure of\nConfidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of\ncompetent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of\ndisclosure required by such law, regulation or order. The Consultant shall provide written notice of any such order to the\nCompany’s Chief Executive Officer or Chief Operating Officer within forty-eight (48) hours of receiving such order, but in\nany event sufficiently in advance of making any disclosure to permit the Company to contest the order or seek\nconfidentiality protections, as determined in the Company’s sole discretion.\n5.\nOwnership of Inventions.\n(a)\nInventions Retained and Licensed. Consultant has attached hereto, as Exhibit A, a\ncomplete list describing with particularity all Inventions (as defined below) that, as of the Effective Date: (i) have been\ncreated by or on behalf of Consultant, and/or (ii) are owned exclusively by Consultant or jointly by Consultant with others\nor in which Consultant has an interest, and that relate in any way to any of the Company’s actual or proposed\nbusinesses, products, services, or research and development, and which are not assigned to the Company hereunder\n(collectively “Prior Inventions”); or, if no such list is attached, Consultant represents and warrants that there are no such\nInventions at the time of signing this Agreement, and to the extent such Inventions do exist and are not listed on\nExhibit A, Consultant hereby forever waives any and all rights or claims of ownership to such Inventions. Consultant\nunderstands that Consultant’s listing of any Inventions on Exhibit A does not constitute an acknowledgement by the\nCompany of the existence or extent of such Inventions, nor of Consultant’s ownership of such Inventions.\n(b)\nUse or Incorporation of Inventions. Consultant shall not use, disclose or disseminate any\nof the Company’s Confidential Information except as specifically permitted in this Section 5. Consultant may use the\nConfidential Information of the Company solely to perform his obligations under this Agreement for the benefit of the\nCompany. Consultant will exercise the same degree of care as it takes to protect his own confidential information, but in\nno event less than reasonable care. The Consultant may not incorporate any Inventions into any business, venture,\nacademic, other pursuit that Consultant may engage in during or following the termination of the Relationship. If in the\ncourse of the Relationship, Consultant uses or incorporates into any of the Company’s products, services, processes or\nmachines any Invention not assigned to the Company pursuant to Section 5(d) of this Agreement in which Consultant\nhas an interest, Consultant will promptly so inform the Company in writing. Whether or not Consultant gives such notice,\nConsultant hereby irrevocably grants to the Company a nonexclusive, fully paid-up, royalty-free, assumable, perpetual,\nworldwide license, with right to transfer and to sublicense, to practice and exploit such Invention and to make, have\nmade, copy, modify, make derivative works of, use, sell, import, and otherwise distribute such Invention under all\napplicable intellectual property laws without restriction of any kind. The Consultant may not incorporate any Inventions\ninto any business, venture, academic, other pursuit that Consultant may engage in during or following the termination of\nthe Relationship.\n-5-\n(c)\nInventions. Consultant understands that “Inventions” means discoveries, developments,\nconcepts, designs, ideas, know how, modifications, improvements, derivative works, inventions, trade secrets and/or\noriginal works of authorship, whether or not patentable, copyrightable or otherwise legally protectable. Consultant\nunderstands this includes, but is not limited to, any new product, machine, article of manufacture, biological material,\nmethod, procedure, process, technique, use, equipment, device, apparatus, system, compound, formulation, composition\nof matter, design or configuration of any kind, or any improvement thereon. Consultant understands that “Company\nInventions” means any and all Inventions that Consultant or Consultant’s personnel may solely or jointly author,\ndiscover, develop, conceive, or reduce to practice in connection with, or as a result of, the Services performed for the\nCompany or otherwise in connection with the Relationship, except as otherwise provided in Section 5(i) below.\n(d)\nAssignment of Company Inventions. Consultant will promptly make full written disclosure\nto the Company, will hold in trust for the sole right and benefit of the Company, and hereby assigns to the Company, or\nits designee, all of Consultant’s right, title and interest throughout the world in and to any and all Company Inventions and\nall patent, copyright, trademark, trade secret and other intellectual property rights and other proprietary rights therein.\nConsultant hereby waives and irrevocably quitclaims to the Company or its designee any and all claims, of any nature\nwhatsoever, that Consultant now has or may hereafter have for infringement of any and all Company Inventions. Any\nassignment of Company Inventions includes all rights of attribution, paternity, integrity, modification, disclosure and\nwithdrawal, and any other rights throughout the world that may be known as or referred to as “moral rights,” “artist’s\nrights,” “droit moral,” or the like (collectively, “Moral Rights”). To the extent that Moral Rights cannot be assigned under\napplicable law, Consultant hereby waives and agrees not to enforce any and all Moral Rights, including, without\nlimitation, any limitation on subsequent modification, to the extent permitted under applicable law. If Consultant has any\nrights to the Company Inventions, other than Moral Rights, that cannot be assigned to the Company, Consultant hereby\nunconditionally and irrevocably grants to the Company during the term of such rights, an exclusive, irrevocable,\nperpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sublicensees,\nto reproduce, distribute, display, perform, prepare derivative works of and otherwise modify, make, have made, sell, offer\nto sell, import, practice methods, processes and procedures and otherwise use and exploit, such Company Inventions. .\n-6-\n(e)\nWork for Hire. The Consultant agrees that all marketing, operating and training ideas,\nsourcing data, processes and materials, including all inventions, discoveries, improvements, enhancements, written\nmaterials and development related to the business of the Company (“Proprietary Materials”) to which the Consultant\nmay have access or that the Consultant may develop or conceive while employed by the Company shall be considered\nworks made for hire for the Company and prepared within the scope of employment and shall belong exclusively to the\nCompany. Any Proprietary Materials developed by the Consultant that, under applicable law, may not be considered\nworks made for hire, are hereby assigned to the Company without the need for any further consideration, and the\nConsultant agrees to take such further action, including executing such instruments and documents as the Company may\nreasonably request, to evidence such assignment.\n(f)\nNo License. The Consultant understands that this Agreement does not, and shall not be\nconstrued to, grant the Consultant any license or right of any nature with respect to any Proprietary Materials, Moral\nRights, any Confidential Information, materials, software or other tools made available to him or her by the Company, or\nother intellectual property rights relating thereto.\n(g)\nMaintenance of Records. Consultant shall keep and maintain adequate and current written\nrecords of all Company Inventions made or conceived by Consultant or Consultant’s personnel (solely or jointly with\nothers) during the term of the Relationship. The records may be in the form of notes, sketches, drawings, flow charts,\nelectronic data or recordings, laboratory notebooks, or any other format. The records will be available to and remain the\nsole property of the Company at all times. Consultant shall not remove such records from the Company’s place of\nbusiness or systems except as expressly permitted by Company policy which may, from time to time, be revised at the\nsole election of the Company for the purpose of furthering the Company’s business. Consultant shall deliver all such\nrecords (including any copies thereof) to the Company at the time of termination of the Relationship as provided for in\nSection 6 and Section 7.\n(h)\nIntellectual Property Rights. Consultant shall assist the Company, or its designee, at its\nexpense, in every proper way in securing the Company’s, or its designee’s, rights in the Company Inventions and any\ncopyrights, patents, trademarks, mask work rights, Moral Rights, or other intellectual property rights relating thereto in\nany and all countries, including the disclosure to the Company or its designee of all pertinent information and data with\nrespect thereto, the execution of all applications, specifications, oaths, assignments, recordations, and all other\ninstruments which the Company or its designee shall deem necessary in order to apply for, obtain, maintain and transfer\nsuch rights, or if not transferable, waive and shall never assert such rights, and in order to assign and convey to the\nCompany or its designee, and any successors, assigns and nominees the sole and exclusive right, title and interest in\nand to such Company Inventions, and any copyrights, patents, mask work rights or other intellectual property rights\nrelating thereto. Consultant’s obligation to execute or cause to be executed, when it is in Consultant’s power to do so,\nany such instrument or papers shall continue during and at all times after the end of the Relationship and until the\nexpiration of the last such intellectual property right to expire in any country of the world. Consultant hereby irrevocably\ndesignates and appoints the Company and its duly authorized officers and agents as Consultant’s agent and\nattorney-in-fact, to act for and in Consultant’s behalf and stead to execute and file any such instruments and papers and\nto do all other lawfully permitted acts to further the application for, prosecution, issuance, maintenance or transfer of\nletters patent, copyright, mask work and other registrations related to such Company Inventions. This power of attorney is\ncoupled with an interest and shall not be affected by Consultant’s subsequent incapacity.\n-7-\n(i)\nException to Assignments. Subject to the requirements of applicable state law, if any,\nexempting certain Company Inventions, from the assignment provisions of this Agreement, Consultant understands that\nall Company Inventions must be, and are, assigned to the Company pursuant to this Agreement In order to assist in the\ndetermination of which inventions qualify for such state law exclusion, Consultant will advise the Company promptly in\nwriting, during and for a period of forty-eight (48) months immediately following the termination of the Relationship, of all\nInventions solely or jointly conceived or developed or reduced to practice by Consultant or Consultant’s personnel during\nthe period of the Relationship.\n6.\nCompany Property; Returning Company Documents. Consultant acknowledges that Consultant\nhas no expectation of privacy with respect to the Company’s telecommunications, networking or information processing\nsystems (including, without limitation, files, e-mail messages, and voice messages) and that Consultant’s activity and any\nfiles or messages on or using any of those systems may be monitored or reviewed at any time without notice. Consultant\nfurther acknowledges that any property situated on the Company’s premises or systems and owned by the Company,\nincluding disks and other storage media, filing cabinets or other work areas, is subject to inspection by Company\npersonnel at any time with or without notice. At the time of termination of the Relationship, Consultant will deliver to the\nCompany (and will not keep in Consultant’s possession, recreate or deliver to anyone else) any and all devices, records,\ndata, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, laboratory\nnotebooks, materials, flow charts, equipment, other documents or property, or reproductions of any of the\naforementioned items developed by Consultant or Consultant’s personnel pursuant to the Relationship or otherwise\nbelonging to the Company, its successors or assigns.\n7.\nTermination Certification. In the event of the termination of the Relationship, Consultant shall sign\nand deliver the “Termination Certification” attached hereto as Exhibit B; however, Consultant’s failure to sign and\ndeliver the Termination Certification shall in no way diminish Consultant’s continuing obligations under this Agreement.\n8.\nNotice to Third Parties. During the periods of time during which Consultant is restricted in taking\ncertain actions by the terms of Section 9 of this Agreement (the “Restriction Period”), Consultant shall inform any entity\nor person with whom Consultant may seek to enter into a business relationship (whether as an owner, employee,\nindependent contractor or otherwise) of Consultant’s contractual obligations under this Agreement. Consultant\nacknowledges that the Company may, with or without prior notice to Consultant and whether during or after the term of\nthe Relationship, notify third parties of Consultant’s agreements and obligations under this Agreement. Upon written\nrequest by the Company, Consultant will respond to the Company in writing regarding the status of Consultant’s\nengagement or proposed engagement with any party during the Restriction Period.\n-8-\n9.\nSolicitation of Employees, Consultants and Other Parties. As described above, Consultant\nacknowledges that the Company’s Confidential Information includes information relating to the Company’s employees,\nconsultants, customers and others, and Consultant will not use or disclose such Confidential Information except as\nauthorized by the Company in advance in writing. Consultant further agrees as follows:\n(a)\nEmployees, Consultants. During the term of the Relationship, and for a period of twelve\n(12) months immediately following the termination of the Relationship for any reason, whether with or without cause,\nConsultant shall not, directly or indirectly, solicit any of the Company’s employees or consultants to terminate their\nrelationship with the Company, or attempt to solicit employees or consultants of the Company, either for Consultant or for\nany other person or entity.\n(b)\nOther Parties. During the term of the Relationship, Consultant will not influence any of the\nCompany’s clients, licensors, licensees or customers from purchasing Company products or services or solicit or\ninfluence or attempt to influence any client, licensor, licensee, customer or other person either directly or indirectly, to\ndirect any purchase of products and/or services to any person, firm, corporation, institution or other entity in competition\nwith the business of the Company.\n10.\nNo Change to Duration of Relationship. Consultant understands and acknowledges that this\nAgreement does not alter, amend or expand upon any rights Consultant may have to continue in the consulting\nrelationship with, or in the duration of Consultant’s consulting relationship with, the Company under any existing\nagreements between the Company and Consultant, including without limitation the Consulting Agreement, or under\napplicable law.\n11.\nRepresentations and Covenants.\n(a) Facilitation of Agrement. Consultant shall execute promptly, both during and after the end of the\nRelationship, any proper oath, and to verify any proper document, required to carry out the terms of this Agreement, upon\nthe Company’s written request to do so.\n(b) No Conflicts. Consultant represents and warrants that Consultant’s performance of all the terms\nof this Agreement does not and will not breach any agreement Consultant has entered into, or will enter into, with any\nthird party, including without limitation any agreement to keep in confidence proprietary information or materials acquired\nby Consultant in confidence or in trust prior to or during the Relationship. Consultant will not disclose to the Company or\nuse any inventions, confidential or non-public proprietary information or material belonging to any previous client,\nemployer or any other party. Consultant will not induce the Company to use any inventions, confidential or non-public\nproprietary information, or material belonging to any previous client, employer or any other party. Consultant represents\nand warrants that Consultant has listed on Exhibit C all agreements (e.g., non-competition agreements, non-solicitation\nof customers agreements, non-solicitation of employees agreements, confidentiality agreements, inventions agreements,\netc.), if any, with a current or former client, employer, or any other person or entity, that may restrict Consultant’s ability to\nperform services for the Company or Consultant’s ability to recruit or engage customers or service providers on behalf of\nthe Company, or otherwise relate to or restrict Consultant’s ability to perform Consultant’s duties for the Company or any\nobligation Consultant may have to the Company. Consultant shall not enter into any written or oral agreement that\nconflicts with the provisions of this Agreement.\n-9-\n(c) No Other Consulting Agreements. Consultant represents and warrants that Consultant does\nnot presently perform nor will he perform, during the term of the Agreement, consulting or other services for, or engage in\nor intend to engage in an employment relationship with, companies whose businesses or proposed businesses in any\nway, in the opinion of the Company, involve products or services which would be competitive with the Company’s\nproducts or services, or those products or services proposed or in development by the Company during the term of the\nAgreement or would adversely affect the Consult’s ability to perform the Services hereunder. If, however, Consultant\ndesire to perform such services for a third party, Consultant agrees that, in advance of accepting such work, Consultant\nwill promptly notify the Company in writing, specifying the organization with which Consultant proposes to consult,\nprovide services, or become employed by and to provide information sufficient to allow the Company to determine if such\nwork would conflict with the terms of this Agreement, including the terms of the Confidentiality Agreement (defined\nbelow), the interests of the Company or further services which the Company might request of Consultant. If the Company\ndetermines, in its so discretion, that such work conflicts with the terms of this Agreement, the Consultant shall not\nundertake such engagements. Nothing herein shall be deemed to release the Consultant with respect to his obligations\nwith respect to the Confidential Information pursuant to this Agreement.\n(d) Non-Competition and Non-Solicitation and Non-Circumvention.\n(i) Non-Competition. Except as authorized by the Company’s Board of Directors, during the\nterm of the Relationship and for a period of twelve (12) months thereafter, the Consultant will not (except as an officer,\ndirector, stockholder, employee, agent or consultant of the Company or any subsidiary or affiliate thereof) either directly\nor indirectly, whether or not for consideration, (i) in any way, directly or indirectly, solicit, divert, or take away the business\nof any person who is or was a customer of the Company, or in any manner influence such person to cease doing\nbusiness in part or in whole with Company; (ii) engage in a Competing Business; or (iii) except for investments or\nownership in public entities, mutual funds and similar investments, none of which constitute more than 5% of the\nownership (provided such ownership interest is acquired solely for investment purposes) or control of such entities, own,\noperate, control, finance, manage, advise, be employed by or engaged by, perform any services for, invest or otherwise\nbecome associated in any capacity with any person engaged in a Competing Business; or (iv) engage in any practice the\npurpose or effect of which is to intentionally evade the provisions of this covenant. For purposes of this section,\n“Competing Business” means any company or business which is engaged directly or indirectly in any Company\nBusiness carried on or planned to be carried on (if such plans were developed the term of the Relationship) by the\nCompany; and “Company Business” means the Company’s business activities and operations as conducted during the\nterm of the Relationship and all products conceived, planned, researched, developed, tested, manufactured, sold,\nlicensed, leased or otherwise distributed or put into use by the Company, together with all services provided or planned\nby the Company, during your relationship with the Company.\n-10-\n(ii) Non-Solicitation and Non-Circumvention. For a period of twelve (12) months following\nthe termination of the Relationship, the Consultant will not directly or indirectly, whether for your account or for the\naccount of any other individual or entity, solicit or canvas the trade, business or patronage of, or sell to, any individuals or\nentities that were investors, customers or employees of the Company during the term of this Agreement, or prospective\ncustomers with respect to whom a sales effort, presentation or proposal was made by the Company or its affiliates,\nduring the one year period prior to the termination of the Relationship. Without limiting the foregoing, the Consultant shall\nnot, directly or indirectly (i) solicit, induce, enter into any agreement with, or attempt to influence any individual who was\nan employee or consultant of the Company at any time during the term of Relationship, to terminate his or her\nemployment relationship with the Company or to become employed or engaged by the Consultant or any individual or\nentity by which the Consultant are employed or for which you are acting as a consultant or other advisory capacity,\nand/or (ii) interfere in any other way with the employment, or other relationship, of any employee of, or consultant to, the\nCompany.\n(iii) Injunctive Relief. The Consultant acknowledges and agrees that the covenants and\nobligations of the Consultant set forth in this Agreement relate to special, unique and extraordinary Services rendered by\nthe Consultant to the Company and that a violation of any of the terms of such covenants and obligations will cause the\nCompany irreparable injury for which adequate remedies are not available at law. Therefore, the Consultant agrees that\nthe Company shall be entitled to seek an injunction, restraining order or other temporary or permanent equitable relief\n(without the requirement to post bond) restraining the Consultant from committing any violation of the covenants and\nobligations contained herein. These injunctive remedies are cumulative and are in addition to any other rights and\nremedies the Company may have at law or in equity.\n-1 1-\n(e) Voluntary Execution. Consultant certifies and acknowledges that Consultant has carefully read\nall of the provisions of this Agreement, that Consultant understands and has voluntarily accepted such provisions, and\nthat Consultant will fully and faithfully comply with such provisions.\n12.\nElectronic Delivery. Nothing herein is intended to imply a right to participate in any of the\nCompany’s equity incentive plans, however, if Consultant does participate in such plan(s), the Company may, in its sole\ndiscretion, decide to deliver any documents related to Consultant’s participation in the Company’s equity incentive plan(s)\nby electronic means or to request Consultant’s consent to participate in such plan(s) by electronic means. Consultant\nhereby consents to receive such documents by electronic delivery and agrees, if applicableto participate in such plan(s)\nthrough an on-line or electronic system established and maintained by the Company or a third party designated by the\nCompany.\n13.\nMiscellaneous.\n(a)\nGoverning Law. The validity, interpretation, construction and performance of this\nAgreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be\ngoverned, construed and interpreted in accordance with the laws of the state of Nevada, without giving effect to principles\nof conflicts of law. Consultant acknowledges that he may not have the rights and privileges under applicable Nevada law\nthat he might otherwise have under the applicable laws of the United Kingdom with respect to this Agreement which he\nhereby knowingly and willingly waives.\n(b)\nEntire Agreement. Except as described in Section 3, this Agreement sets forth the entire\nagreement and understanding between the Company and Consultant relating to its subject matter and merges all prior\ndiscussions between the parties to this Agreement. No amendment to this Agreement will be effective unless in writing\nsigned by both parties to this Agreement. The Company shall not be deemed hereby to have waived any rights or\nremedies it may have in law or equity, nor to have given any authorizations or waived any of its rights under this\nAgreement, unless, and only to the extent, it does so by a specific writing signed by a duly authorized officer of the\nCompany. Any subsequent change or changes in Consultant’s duties, obligations, rights or compensation will not affect\nthe validity or scope of this Agreement.\n(c)\nSuccessors and Assigns. This Agreement will be binding upon Consultant’s successors\nand assigns, and will be for the benefit of the Company, its successors, and its assigns.\n(d)\nNotices. Any notice, demand or request required or permitted to be given under this\nAgreement shall be in writing and shall be deemed sufficient when delivered personally or by overnight courier or sent by\nemail, or 48 hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to\nthe party to be notified at such party’s address as set forth on the signature page, as subsequently modified by written\nnotice, or if no address is specified on the signature page, at the most recent address set forth in the Company’s books\nand records.\n-12-\n(e)\nSeverability. If one or more of the provisions in this Agreement are deemed void or\nunenforceable to any extent in any context, such provisions shall nevertheless be enforced to the fullest extent allowed\nby law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected. The\nCompany and Consultant have attempted to limit Consultant’s right to use, maintain and disclose the Company’s\nConfidential Information, and to limit Consultant’s right to solicit employees and customers only to the extent necessary to\nprotect the Company from unfair competition. Should a court of competent jurisdiction determine that the scope of the\ncovenants contained in Section 9 and 11 exceeds the maximum restrictiveness such court deems reasonable and\nenforceable, the parties intend that the court should reform, modify and enforce the provision to such narrower scope as\nit determines to be reasonable and enforceable under the circumstances existing at that time. In the event that any court\nor government agency of competent jurisdiction determines that, notwithstanding the terms of the Consulting Agreement\nspecifying Consultant’s Relationship with the Company as that of an independent contractor, Consultant’s provision of\nservices to the Company is not as an independent contractor but instead as an employee under the applicable laws, then\nsolely to the extent that such determination is applicable, references in this Agreement to the Relationship between\nConsultant and the Company shall be interpreted to include an employment relationship, and this Agreement shall not be\ninvalid and unenforceable but shall be read to the fullest extent as may be valid and enforceable under the applicable\nlaws to carry out the intent and purpose of this Agreement.\n(f)\nRemedies. Consultant acknowledges that violation of this Agreement by Consultant may\ncause the Company irreparable harm, and therefore Consultant agrees that the Company will be entitled to seek\nextraordinary relief in court, including, but not limited to, temporary restraining orders, preliminary injunctions and\npermanent injunctions without the necessity of posting a bond or other security (or, where such a bond or security is\nrequired, that a $1,000 bond will be adequate), in addition to and without prejudice to any other rights or remedies that\nthe Company may have for a breach of this Agreement.\n(g)\nAdvice of Counsel. Consultant acknowledges THAT, IN EXECUTING THIS AGREEMENT,\nConsultant Has HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND\nConsultant Has read and understands ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS\nAGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR\nPREPARATION HEREOF.\n(h)\nCounterparts. This Agreement may be executed in any number of counterparts, each of\nwhich when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the\nsame agreement. Execution of a facsimile or scanned copy will have the same force and effect as execution of an\noriginal, and a facsimile or scanned signature will be deemed an original and valid signature.\n-13-\n(i)\nEffective Date. Regardless of the date on which this Agreement is executed by the parties\nhereto, the effective date of this Agreement is June 1, 2019.\n[Signature Page Follows]\n-1 4-\nSIGNATURES\nThe parties have executed this Confidential Information and Invention Assignment Agreement on the respective dates set\nforth below, to be effective as of the Effective Date first above written.\nthe company:\nrenovacare, Inc.\nBy: /s/ Harmel S. Rayat_________________________\n(Signature)\nName: Harmel S. Rayat\nTitle: Chief Executive Officer\nAddress:\nRenovaCare, Inc.\n9375 East Shea Blvd.,\nSuite 107-A\nScottsdale, AZ 85260\nAttention: Harmel S. Rayat\nFacsimile: 604-336-8609\nEmail Address: hsr@renovacareinc.com\nCONSULTANT:\nRoger Esteban-Vives\n(Print Name)\n/s/ Roger Esteban-Vives__________________________\n(Signature)\nAddress:\nRoger Esteban_Viives\nFlat 1, 3 Recovery St.\nLondon, SW170DL, United Kingdom\nEmail: ________________________\nFacsimile: ______________________\n-15-	EXHIBIT D\nTo THE RENOVACARE, lNC.—ROGER ESTEBAN-VIVES\nCONSULTING AGREEMENT\nDATED\nJUNE 4, 2019\n>I°I°I°I<\nConfidential information and\ninvention assignment agreement\nRENOVACARE, INC.\nCONFIDENTIAL INFORMATION AND\nINVENTION ASSIGNMENT AGREEMENT\nConfidential Information and Invention AssignmentAgreement is dated as of] une 4,2019 by and between\nRenovaCare, Inc., a Nevada corporation (the “RCAR”), and Roger Esteban-Vives, an individual having his place of\nbusiness in London, England (“Consultant”).\nAs a condition of becoming retained (or Consultant's consulting relationship being continued) by RCAR, or any of\nits current or future subsidiaries, affiliates, successors or assigns (collectively, the “Company”), and in consideration of\nConsultant's consulting relationship with the Company and receipt of the compensation now and hereafter paid by the\nCompany, the receiptofConfidential Information (as defined below) while associated with the Company, and other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Consultant hereby agrees to\nthe following:\n1. Relationship. This Confidential Information and Invention AssignmentAgreement (this\n“Agreement”) will apply to Consultant's consulting relationship with the Company. If that relationship ends and the\nCompany, within one (1) year thereafter, either employs Consultant or re-engages Consultant as a consultant, this\nAgreement will also apply to such later employment or consulting relationship, unless the parties hereto otherwise agree\nin writing. Any employment or consulting relationship between the parties hereto, whether commenced priorto, upon or\nafter the date of this Agreement, is referred to herein as the “Relationship.”\n2. Applicability to Past Activities. The Company and Consultant acknowledge that Consultant may\nhave performed work, activities, services or made efforts on behalf of orfor the benefit of the Company, or related to the\ncurrent or prospective business of the Company in anticipation of Consultant's involvement with the Company, that would\nhave been “Services” if performed during the term of this Agreement, for a period of time priorto the Effective Date of this\nAgreement (the “Prior Consulting Period”). Accordingly, if and to the extent that, during the Prior Consulting Period: (i)\nConsultant received access to any information from or on behalf of the Company thatwould have been Confidential\nInformation (as defined below) if Consultant received access to such information during the term of this Agreement; or (ii)\nConsultant (a) conceived, created, authored, invented, developed or reduced to practice any item (including any\nintellectual property rights with respect thereto) on behalf of orforthe benefit of the Company, or related to the current or\nprospective business ofthe Company in anticipation of Consultant's involvement with the Company, that would have\nbeen an Invention (as defined below) ifconceived, created, authored, invented, developed or reduced to practice during\nthe term of this Agreement; or (b) incorporated into any such item any pre-existing invention, improvement, development,\nconcept, discovery or other proprietary information that would have been a Prior Invention (as defined below) if\nincorporated into such item during the term of this Agreement; then any such information shall be deemed “Confidential\nInformation” hereunder and any such item shall be deemed an “Invention” or “Prior Invention” hereunder, and this\nAgreementshall apply to such activities, information or item as ifdisclosed, conceived, created, authored, invented,\ndeveloped or reduced to practice during the term of this Agreement.\n3. Executive Services Consulting Agreement. Consultant has entered into an agreement with the\nCompany on or aboutthe date hereof to provide various services to the Company (the “Consulting Agreement”). The\nservices rendered by Consultant underthe Consulting Agreementare referred to herein as the “Services”and this\nAgreement is intended to supplement and form an integral part of the Consulting Agreement.\n4. Confidential Information.\n(a) Protection of Information. Consultant understands that during the Relationship, the\nCompany intends to provide Consultant with certain information, including Confidential Information (as defined below),\nwithout which Consultant would not be able to perform Consultant's duties to the Company. At all times during the term of\nthe Relationship and thereafter, Consultant shall hold in strictest confidence, and not use, except forthe benefit of the\nCompany to the extent necessary to perform the Services, and not disclose to any person, firm, corporation or other\nentity, without written authorization from the Company in each instance, any Confidential Information that Consultant\nobtains from the Company or otherwise obtains, accesses or creates in connection with, or as a result of, the Services\nduring the term of the Relationship, whether or not during working hours, until such Confidential Information becomes\npublicly and widely known and made generally available through no wrongful act of Consultant or of others who were\nunder confidentiality obligations as to the item or items involved. Consultant shall not make copies of such Confidential\nInformation except as authorized by the Company or in the ordinary course of the provision of Services.\n-3-\n(b) Confidential Information. Consultant understands that “Confidential Information” means\nany and all information and physical manifestations thereof not generally known or available outside the Company and\ninformation and physical manifestations thereof entrusted to the Company in confidence by third parties, whether or not\nsuch information is patentable, copyrightable or othenNise legally protectable. Confidential Information includes, without\nlimitation: (i) Company Inventions (as defined below); and (ii) technical data, trade secrets, know-how, research, product\nor service ideas or plans, software codes and designs, algorithms, developments, inventions, patent applications,\nlaboratory notebooks, processes, formulas, techniques, biological materials, mask works, engineering designs and\ndrawings, hardware configuration information, agreements with third parties, lists of, or information relating to, employees\nand consultants of the Company (including, but not limited to, the names, contact information, jobs, compensation, and\nexpertise of such employees and consultants), lists of, or information relating to, suppliers and customers (including, but\nnot limited to, customers of the Company on whom Consultant called or with whom Consultant became acquainted\nduring the Relationship), price lists, pricing methodologies, costdata, marketshare data, marketing plans, licenses,\ncontract information, business plans, financial forecasts, historical financial data, budgets or other business information\ndisclosed to Consultant by the Company either directly or indirectly, whether in writing, electronically, orally, or by\nobservation.\nThe Consultant understands that the above list is not exhaustive, and that Confidential Information also includes\nother information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appearto a\nreasonable person to be confidential or proprietary in the context and circumstances in which the information is known or\nused. The Consultant understands and agrees that Confidential Information developed by him or her in the course of his\nengagement with the Company shall be subject to the terms and conditions of this Agreement as if the Company\nfurnished the same Confidential Information to the Consultant in the first instance. Confidential Information shall not\ninclude information that is generally available to and known by the public, provided thatsuch disclosure to the public is\nthrough no direct or indirect fault of the Consultant or person(s) acting on the Consultant's behalf.\n(c) Third Par_ty Information. Consultant's agreements in this Section 4 are intended to be for\nthe benefit of the Company and any third party that has entrusted information or physical material to the Company in\nconfidence. During the term of the Relationship and thereafter, Consultant will not improperly use or disclose to the\nCompany any confidential, proprietary or secret information of Consultant's former clients or any other person, and\nConsultant will not bring any such information onto the Company's property or place of business.\n(d) Other Rights. This Agreement is intended to supplement, and not to supersede, any rights\nthe Company may have in law or equity with respect to the protection of trade secrets or confidential or proprietary\ninformation.\n(e) U.S. Defend Trade Secrets Act. Notwithstanding the foregoing, the U.S. Defend Trade\nSecrets Act of 2016 (“DTSA”) provides that an individual shall not be held criminally or civilly liable under any federal or\nstate trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state, or local\ngovernment official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or\ninvestigating a suspected violation of law; or (iii) in a complaint or other document filed in a lawsuit or other proceeding, if\nsuch filing is made under seal. In addition, DTSA provides thatan individual who files a lawsuit for retaliation by an\nemployer for reporting a suspected violation of law may disclose the trade secret to the attorney ofthe individual and use\nthe trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret\nunder seal; and (B) does not disclose the trade secret, except pursuant to court order.\n-4-\n(f) Disclosure Required by Law. Nothing herein shall be construed to prevent disclosure of\nConfidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of\ncompetentjurisdiction or an authorized government agency, provided thatthe disclosure does not exceed the extent of\ndisclosure required by such law, regulation or order. The Consultant shall provide written notice of any such order to the\nCompany's Chief Executive Officer or Chief Operating Officer within forty-eight (48) hours of receiving such order, but in\nany event sufficiently in advance of making any disclosure to permit the Company to contest the order or seek\nconfidentiality protections, as determined in the Company's sole discretion.\n5. Ownership of Inventions.\n(a) Inventions Retained and Licensed. Consultant has attached hereto, as Exhibit A, a\ncomplete list describing with particularity all Inventions (as defined below) that, as of the Effective Date: (i) have been\ncreated by or on behalf of Consultant, and/or (ii) are owned exclusively by Consultant orjointly by Consultant with others\nor in which Consultant has an interest, and that relate in any way to any of the Company's actual or proposed\nbusinesses, products, services, or research and development, and which are not assigned to the Company hereunder\n(collectively “Prior Inventions”); or, if no such list is attached, Consultant represents and warrants that there are no such\nInventions at the time of signing this Agreement, and to the extent such Inventions do exist and are not listed on\nExhibitA, Consultant hereby forever waives any and all rights or claims of ownership to such Inventions. Consultant\nunderstands that Consultant's listing of any Inventions on ExhibitA does not constitute an acknowledgement by the\nCompany of the existence or extent of such Inventions, nor of Consultant's ownership of such Inventions.\n(b) Use or Incorporation of Inventions. Consultant shall not use, disclose or disseminate any\nof the Company's Confidential Information except as specifically permitted in this Section 5. Consultant may use the\nConfidential Information of the Company solely to perform his obligations underthis Agreement forthe benefit of the\nCompany. Consultant will exercise the same degree of care as it takes to protect his own confidential information, but in\nno event less than reasonable care. The Consultant may not incorporate any Inventions into any business, venture,\nacademic, other pursuit that Consultant may engage in during orfollowing the termination of the Relationship. If in the\ncourse ofthe Relationship, Consultant uses or incorporates into any of the Company's products, services, processes or\nmachines any Invention not assigned to the Company pursuant to Section 5(d) of this Agreement in which Consultant\nhas an interest, Consultant will promptly so inform the Company in writing. Whether or not Consultant gives such notice,\nConsultant hereby irrevocably grants to the Company a nonexclusive, fully paid-up, royalty-free, assumable, perpetual,\nworldwide license, with right to transfer and to sublicense, to practice and exploit such Invention and to make, have\nmade, copy, modify, make derivative works of, use, sell, import, and otherwise distribute such Invention under all\napplicable intellectual property laws without restriction of any kind. The Consultant may not incorporate any Inventions\ninto any business, venture, academic, other pursuit that Consultant may engage in during orfollowing the termination of\nthe Relationship.\n \n(c) Inventions. Consultant understands that “Inventions” means discoveries, developments,\nconcepts, designs, ideas, know how, modifications, improvements, derivative works, inventions, trade secrets and/or\noriginal works of authorship, whether or not patentable, copyrightable or otherwise legally protectable. Consultant\nunderstands this includes, but is not limited to, any new product, machine, article of manufacture, biological material,\nmethod, procedure, process, technique, use, equipment, device, apparatus, system, compound, formulation, composition\nof matter, design or configuration of any kind, or any improvement thereon. Consultant understands that “Company\nInventions” means any and all Inventions that Consultant or Consultant's personnel may solely orjointly author,\ndiscover, develop, conceive, or reduce to practice in connection with, or as a result of, the Services performed forthe\nCompany or otherwise in connection with the Relationship, except as otherwise provided in Section 5(i) below.\n(d) Assignment ofComQany Inventions. Consultant will promptly make full written disclosure\nto the Company, will hold in trustforthe sole rightand benefit of the Company, and hereby assigns to the Company, or\nits designee, all of Consultant's right, title and interest throughout the world in and to any and all Company Inventions and\nall patent, copyright, trademark, trade secret and other intellectual property rights and other proprietary rights therein.\nConsultant hereby waives and irrevocably quitclaims to the Company or its designee any and all claims, of any nature\nwhatsoever, that Consultant now has or may hereafter have for infringement of any and all Company Inventions. Any\nassignment of Company Inventions includes all rights of attribution, paternity, integrity, modification, disclosure and\nwithdrawal, and any other rights throughout the world that may be known as or referred to as “moral rights,” “artist's\nrights,” “droit moral,” orthe like (collectively, “Moral Rights”). To the extent that Moral Rights cannot be assigned under\napplicable law, Consultant hereby waives and agrees notto enforce any and all Moral Rights, including, without\nlimitation, any limitation on subsequent modification, to the extent permitted under applicable law. If Consultant has any\nrights to the Company Inventions, otherthan Moral Rights, thatcannot be assigned to the Company, Consultant hereby\nunconditionally and irrevocably grants to the Company during the term of such rights, an exclusive, irrevocable,\nperpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels ofsublicensees,\nto reproduce, distribute, display, perform, prepare derivative works of and othenNise modify, make, have made, sell, offer\nto sell, import, practice methods, processes and procedures and otherwise use and exploit, such Company Inventions. .\n-6-\n(e) Work for Hire. The Consultant agrees that all marketing, operating and training ideas,\nsourcing data, processes and materials, including all inventions, discoveries, improvements, enhancements, written\nmaterials and development related to the business ofthe Company (“Proprietary Materials”) to which the Consultant\nmay have access or thatthe Consultant may develop or conceive while employed by the Company shall be considered\nworks made for hire forthe Company and prepared within the scope of employment and shall belong exclusively to the\nCompany. Any Proprietary Materials developed by the Consultantthat, under applicable law, may not be considered\nworks made for hire, are hereby assigned to the Company withoutthe need for any further consideration, and the\nConsultant agrees to take such further action, including executing such instruments and documents as the Company may\nreasonably request, to evidence such assignment.\n(f) No License. The Consultant understands thatthis Agreement does not, and shall not be\nconstrued to, grant the Consultant any license or right of any nature with respect to any Proprietary Materials, Moral\nRights, any Confidential Information, materials, software or othertools made available to him or her by the Company, or\nother intellectual property rights relating thereto.\n(g) Maintenance of Records. Consultant shall keep and maintain adequate and current written\nrecords of all Company Inventions made or conceived by Consultant or Consultant's personnel (solely orjointly with\nothers) during the term of the Relationship. The records may be in the form of notes, sketches, drawings, flow charts,\nelectronic data or recordings, laboratory notebooks, or any other format. The records will be available to and remain the\nsole property of the Company at all times. Consultant shall not remove such records from the Company's place of\nbusiness or systems except as expressly permitted by Company policy which may, from time to time, be revised at the\nsole election of the Company for the purpose offurthering the Company's business. Consultant shall deliver all such\nrecords (including any copies thereof) to the Company atthe time of termination of the Relationship as provided for in\nSection 6 and Section 7.\n(h) Intellectual Proper_ty Rights. Consultant shall assistthe Company, or its designee, at its\nexpense, in every proper way in securing the Company's, or its designee's, rights in the Company Inventions and any\ncopyrights, patents, trademarks, mask work rights, Moral Rights, or other intellectual property rights relating thereto in\nany and all countries, including the disclosure to the Company or its designee of all pertinent information and data with\nrespectthereto, the execution of all applications, specifications, oaths, assignments, recordations, and all other\ninstruments which the Company or its designee shall deem necessary in orderto apply for, obtain, maintain and transfer\nsuch rights, or if not transferable, waive and shall never assert such rights, and in orderto assign and convey to the\nCompany or its designee, and any successors, assigns and nominees the sole and exclusive right, title and interest in\nand to such Company Inventions, and any copyrights, patents, mask work rights or other intellectual property rights\nrelating thereto. Consultant's obligation to execute or cause to be executed, when it is in Consultant's powerto do so,\nany such instrument or papers shall continue during and at all times afterthe end of the Relationship and until the\nexpiration of the last such intellectual property right to expire in any country of the world. Consultant hereby irrevocably\ndesignates and appoints the Company and its duly authorized officers and agents as Consultant's agentand\nattorney-in-fact, to actfor and in Consultant's behalf and stead to execute and file any such instruments and papers and\nto do all other lawfully permitted acts to further the application for, prosecution, issuance, maintenance ortransfer of\nletters patent, copyright, mask work and other registrations related to such Company Inventions. This power of attorney is\ncoupled with an interest and shall not be affected by Consultant's subsequent incapacity.\n-7-\n \n(i) Exception to Assignments. Subject to the requirements of applicable state law, if any,\nexempting certain Company Inventions, from the assignment provisions of this Agreement, Consultant understands that\nall Company Inventions must be, and are, assigned to the Company pursuant to this Agreement In orderto assist in the\ndetermination of which inventions qualify for such state law exclusion, Consultant will advise the Company promptly in\nwriting, during and for a period of forty-eight (48) months immediately following the termination of the Relationship, of all\nInventions solely orjointly conceived or developed or reduced to practice by Consultant or Consultant's personnel during\nthe period of the Relationship.\n6. Company Proper_ty; Returning Company Documents. Consultant acknowledges that Consultant\nhas no expectation of privacy with respect to the Company's telecommunications, networking or information processing\nsystems (including, without limitation, files, e-mail messages, and voice messages) and that Consultant's activity and any\nfiles or messages on or using any of those systems may be monitored or reviewed at any time without notice. Consultant\nfurther acknowledges that any property situated on the Company's premises or systems and owned by the Company,\nincluding disks and other storage media, filing cabinets or other work areas, is subjectto inspection by Company\npersonnel at any time with or without notice. At the time of termination of the Relationship, Consultant will deliverto the\nCompany (and will not keep in Consultant's possession, recreate or deliverto anyone else) any and all devices, records,\ndata, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, laboratory\nnotebooks, materials, flow charts, equipment, other documents or property, or reproductions of any of the\naforementioned items developed by Consultantor Consultant's personnel pursuant to the Relationship or otherwise\nbelonging to the Company, its successors or assigns.\n7. Termination Certification. In the event of the termination of the Relationship, Consultant shall sign\nand deliverthe 'Terminafion Certification” attached hereto as Exhibit B; however, Consultant's failure to sign and\ndeliverthe Termination Certification shall in no way diminish Consultant's continuing obligations underthis Agreement.\n8. Notice to Third Parties. During the periods of time during which Consultant is restricted in taking\ncertain actions by the terms of Section 9 of this Agreement (the “Restriction Period”), Consultant shall inform any entity\nor person with whom Consultant may seek to enter into a business relationship (whether as an owner, employee,\nindependent contractor or otherwise) of Consultant's contractual obligations underthis Agreement. Consultant\nacknowledges that the Company may, with or without prior notice to Consultant and whether during or afterthe term of\nthe Relationship, notify third parties of Consultant's agreements and obligations under this Agreement. Upon written\nrequest by the Company, Consultant will respond to the Company in writing regarding the status of Consultant's\nengagement or proposed engagement with any party during the Restriction Period.\n-8-\n \n9. Solicitation of Employees, Consultant and Other Parties. As described above, Consultant\nacknowledges that the Company's Confidential Information includes information relating to the Company's employees,\nconsultants, customers and others, and Consultant will not use or disclose such Confidential Information except as\nauthorized by the Company in advance in writing. Consultant further agrees as follows:\n(a) EmployeesI Consultant. During the term of the Relationship, and for a period of twelve\n(12) months immediately following the termination of the Relationship for any reason, whether with or without cause,\nConsultant shall not, directly or indirectly, solicit any of the Company's employees or consultants to terminate their\nrelationship with the Company, or attempt to solicit employees or consultants of the Company, eitherfor Consultant or for\nany other person or entity.\n(b) Other Parties. During the term of the Relationship, Consultant will not influence any of the\nCompany's clients, licensors, licensees or customers from purchasing Company products or services or solicitor\ninfluence or attempt to influence any client, licensor, licensee, customer or other person either directly or indirectly, to\ndirect any purchase of products and/or services to any person, firm, corporation, institution or other entity in competition\nwith the business of the Company.\n10. No Change to Duration of Relationship. Consultant understands and acknowledges that this\nAgreement does not alter, amend or expand upon any rights Consultant may have to continue in the consulting\nrelationship with, or in the duration of Consultant's consulting relationship with, the Company under any existing\nagreements between the Company and Consultant, including without limitation the Consulting Agreement, or under\napplicable law.\n11. Representations and Covenant.\n(a) Facilitation ongrement. Consultant shall execute promptly, both during and afterthe end of the\nRelationship, any proper oath, and to verify any proper document, required to carry out the terms of this Agreement, upon\nthe Company's written requestto do so.\n(b) No Conflict. Consultant represents and warrants that Consultant's performance of all the terms\nof this Agreement does not and will not breach any agreement Consultant has entered into, or will enter into, with any\nthird party, including without limitation any agreement to keep in confidence proprietary information or materials acquired\nby Consultant in confidence or in trust priorto or during the Relationship. Consultant will not disclose to the Company or\nuse any inventions, confidential or non-public proprietary information or material belonging to any previous client,\nemployer or any other party. Consultant will not induce the Company to use any inventions, confidential or non-public\nproprietary information, or material belonging to any previous client, employer or any other party. Consultant represents\nand warrants thatConsultant has listed on ExhibitC all agreements (e.g., non-competition agreements, non-solicitation\nofcustomers agreements, non-solicitation ofemployees agreements, confidentiality agreements, inventions agreements,\netc.), if any, with a current or former client, employer, or any other person or entity, that may restrict Consultant's ability to\nperform services forthe Company or Consultant's ability to recruit or engage customers or service providers on behalf of\nthe Company, or otherwise relate to or restrict Consultant's ability to perform Consultant's duties for the Company or any\nobligation Consultant may have to the Company. Consultant shall not enter into any written or oral agreement that\nconflict with the provisions of this Agreement.\n(c) No Other Consulting Agreements. Consultant represents and warrants that Consultant does\nnot presently perform nor will he perform, during the term of the Agreement, consulting or other services for, or engage in\nor intend to engage in an employment relationship with, companies whose businesses or proposed businesses in any\nway, in the opinion of the Company, involve products or services which would be competitive with the Company's\nproducts or services, orthose products or services proposed or in development by the Company during the term of the\nAgreement or would adversely affect the Consult's ability to perform the Services hereunder. If, however, Consultant\ndesire to perform such services fora third party, Consultantagrees that, in advance ofaccepting such work, Consultant\nwill promptly notify the Company in writing, specifying the organization with which Consultant proposes to consult,\nprovide services, or become employed by and to provide information sufficient to allow the Company to determine if such\nwork would conflict with the terms of this Agreement, including the terms of the Confidentiality Agreement (defined\nbelow), the interests of the Company or further services which the Company might request of Consultant. Ifthe Company\ndetermines, in its so discretion, that such work conflicts with the terms of this Agreement, the Consultant shall not\nundertake such engagements. Nothing herein shall be deemed to release the Consultantwith respectto his obligations\nwith respect to the Confidential Information pursuant to this Agreement.\n(d) Non-Competition and Non-Solicitation and Non-Circumvention.\n(i) Non-Competition. Except as authorized by the Company's Board of Directors, during the\nterm of the Relationship and for a period of twelve (12) months thereafter, the Consultant will not (except as an officer,\ndirector, stockholder, employee, agent or consultant of the Company or any subsidiary or affiliate thereof) either directly\nor indirectly, whether or not for consideration, (i) in any way, directly or indirectly, solicit, divert, ortake away the business\nof any person who is or was a customer ofthe Company, or in any manner influence such person to cease doing\nbusiness in part or in whole with Company; (ii) engage in a Competing Business; or (iii) except for investments or\nownership in public entities, mutual funds and similar investments, none of which constitute more than 5% of the\nownership (provided such ownership interest is acquired solely for investment purposes) or control of such entities, own,\noperate, control, finance, manage, advise, be employed by or engaged by, perform any services for, investor otherwise\nbecome associated in any capacity with any person engaged in a Competing Business; or (iv) engage in any practice the\npurpose or effect of which is to intentionally evade the provisions of this covenant. For purposes of this section,\n“Competing Business” means any company or business which is engaged directly or indirectly in any Company\nBusiness carried on or planned to be carried on (ifsuch plans were developed the term of the Relationship) by the\nCompany; and “Company Business” means the Company's business activities and operations as conducted during the\nterm of the Relationship and all products conceived, planned, researched, developed, tested, manufactured, sold,\nlicensed, leased or otherwise distributed or put into use by the Company, together with all services provided or planned\nby the Company, during your relationship with the Company.\n-10-\n(ii) Non-Solicitation and Non-Circumvention. For a period of twelve (12) months following\nthe termination of the Relationship, the Consultant will not directly or indirectly, whether for your account or for the\naccount of any other individual or entity, solicit or canvas the trade, business or patronage of, or sell to, any individuals or\nentities that were investors, customers or employees of the Company during the term of this Agreement, or prospective\ncustomers with respectto whom a sales effort, presentation or proposal was made by the Company or its affiliates,\nduring the one year period prior to the termination of the Relationship. Without limiting the foregoing, the Consultant shall\nnot, directly or indirectly (i) solicit, induce, enter into any agreement with, or attempt to influence any individual who was\nan employee or consultant of the Company at any time during the term of Relationship, to terminate his or her\nemployment relationship with the Company or to become employed or engaged by the Consultant or any individual or\nentity by which the Consultant are employed orfor which you are acting as a consultant or other advisory capacity,\nand/or (ii) interfere in any other way with the employment, or other relationship, of any employee of, or consultant to, the\nCompany.\n(iii) lniunctive Relief. The Consultant acknowledges and agrees thatthe covenants and\nobligations of the Consultantset forth in this Agreement relate to special, unique and extraordinary Services rendered by\nthe Consultant to the Company and that a violation of any of the terms of such covenants and obligations will cause the\nCompany irreparable injury for which adequate remedies are not available at law. Therefore, the Consultant agrees that\nthe Company shall be entitled to seek an injunction, restraining order or othertemporary or permanent equitable relief\n(without the requirement to post bond) restraining the Consultant from committing any violation of the covenants and\nobligations contained herein. These injunctive remedies are cumulative and are in addition to any other rights and\nremedies the Company may have at law or in equity.\n-11-\n(e) Voluntagy Execution. Consultant certifies and acknowledges that Consultant has carefully read\nall of the provisions of this Agreement, that Consultant understands and has voluntarily accepted such provisions, and\nthat Consultant will fully and faithfully comply with such provisions.\n12. Electronic DeliveEy. Nothing herein is intended to imply a right to participate in any of the\nCompany's equity incentive plans, however, ifConsultantdoes participate in such plan(s), the Company may, in its sole\ndiscretion, decide to deliver any documents related to Consultant's participation in the Company's equity incentive plan(s)\nby electronic means orto requestConsultant's consentto participate in such plan(s) by electronic means. Consultant\nhereby consents to receive such documents by electronic delivery and agrees, ifapplicableto participate in such plan(s)\nthrough an on-line or electronic system established and maintained by the Company or a third party designated by the\nCompany.\n13. Miscellaneous.\n(a) Governing Law. The validity, interpretation, construction and performance of this\nAgreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be\ngoverned, construed and interpreted in accordance with the laws of the state of Nevada, without giving effectto principles\nofconflicts of law. Consultantacknowledges that he may not have the rights and privileges under applicable Nevada law\nthat he might otherwise have underthe applicable laws of the United Kingdom with respect to this Agreement which he\nhereby knowingly and willingly waives.\n(b) Entire Agreement. Except as described in Section 3, this Agreement sets forth the entire\nagreement and understanding between the Company and Consultant relating to its subject matter and merges all prior\ndiscussions between the parties to this Agreement. No amendment to this Agreement will be effective unless in writing\nsigned by both parties to this Agreement. The Company shall not be deemed hereby to have waived any rights or\nremedies it may have in law or equity, norto have given any authorizations or waived any of its rights underthis\nAgreement, unless, and only to the extent, itdoes so by a specific writing signed by a duly authorized officer ofthe\nCompany. Any subsequent change or changes in Consultant's duties, obligations, rights or compensation will notaffect\nthe validity or scope of this Agreement.\n(c) Successors and Assigns. This Agreement will be binding upon Consultant's successors\nand assigns, and will be forthe benefit of the Company, its successors, and its assigns.\n(d) Notices. Any notice, demand or request required or permitted to be given underthis\nAgreement shall be in writing and shall be deemed sufficient when delivered personally or by overnight courier or sent by\nemail, or 48 hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to\nthe party to be notified atsuch party's address as set forth on the signature page, as subsequently modified by written\nnotice, or if no address is specified on the signature page, atthe most recentaddress setforth in the Company's books\nand records.\n-12-\n \n(e) Severability. If one or more of the provisions in this Agreement are deemed void or\nunenforceable to any extent in any context, such provisions shall nevertheless be enforced to the fullest extent allowed\nby law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected. The\nCompany and Consultant have attempted to limitConsultant's rightto use, maintain and disclose the Company's\nConfidential Information, and to limitConsultant's right to solicit employees and customers only to the extent necessary to\nprotect the Company from unfair competition. Should a court of competentjurisdiction determine that the scope of the\ncovenants contained in Section 9 and 11 exceeds the maximum restrictiveness such court deems reasonable and\nenforceable, the parties intend thatthe court should reform, modify and enforce the provision to such narrower scope as\nitdetermines to be reasonable and enforceable underthe circumstances existing atthattime. In the event thatany court\nor government agency of competentjurisdiction determines that, notwithstanding the terms of the Consulting Agreement\nspecifying Consultant's Relationship with the Company as that of an independent contractor, Consultant's provision of\nservices to the Company is notas an independentcontractor but instead as an employee underthe applicable laws, then\nsolely to the extent that such determination is applicable, references in this Agreement to the Relationship between\nConsultant and the Company shall be interpreted to include an employment relationship, and this Agreement shall not be\ninvalid and unenforceable but shall be read to the fullestextentas may be valid and enforceable underthe applicable\nlaws to carry outthe intent and purpose of this Agreement.\n(f) Remedies. Consultant acknowledges that violation of this Agreement by Consultant may\ncause the Company irreparable harm, and therefore Consultant agrees thatthe Company will be entitled to seek\nextraordinary relief in court, including, but not limited to, temporary restraining orders, preliminary injunctions and\npermanent injunctions withoutthe necessity of posting a bond or other security (or, where such a bond or security is\nrequired, that a $1,000 bond will be adequate), in addition to and without prejudice to any other rights or remedies that\nthe Company may have for a breach of this Agreement.\n(g) Advice ofCounsel. Consultantacknowledges THAT, IN EXECUTING THIS AGREEMENT,\nConsultantHas HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND\nConsultant Has read and understands ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS\nAGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR\nPREPARATION HEREOF.\n(h) Counterparts. This Agreement may be executed in any number of counterparts, each of\nwhich when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the\nsame agreement. Execution ofa facsimile or scanned copy will have the same force and effectas execution ofan\noriginal, and a facsimile or scanned signature will be deemed an original and valid signature.\n-13-\n(i) Effective Date. Regardless of the date on which this Agreement is executed by the parties\nhereto, the effective date of this Agreement is] une 1, 2019.\n[Signature Page Follows]\n-14-\nSIGNATURES\nThe parties have executed this Confidential Information and Invention AssignmentAgreement on the respective dates set\nforth below, to be effective as of the Effective Date first above written.\nthe company:\nrenovacare, Inc.\nBy: /s/ Harmel S. Ra at ________________________\n(Signature)\nName: Harmel S. Rayat\nTitle: Chief Executive Officer\nAddress:\nRenovaCare, Inc.\n9375 East Shea Blvd.,\nSuite 107-A\nScottsdale, AZ 85260\nAttention: Harmel S. Rayat\nFacsimile: 604-336-8609\nEmail Address: hsr@ renovacareinc.com\nCONSULTANT:\nRoger Esteban-Vives\n(Print Name)\n/s/ Ro er E steban-Vives _________________________\n(Signature)\nAddress:\nRoger E steban_Viives\nFlat 1, 3 Recovery St.\nLondon, SW170DL, United Kingdom\n-15-	EXHIBIT D\nTO THE RENOVACARE, INC.- ROGER ESTEBAN-VIVES\nCONSULTING AGREEMENT\nDATED\nUNE 4, 2019\n*kk\nConfidential information and\ninvention assignment agreement\nRENOVACARE, INC.\nCONFIDENTIAL INFORMATION AND\nINVENTION ASSIGNMENT AGREEMENT\nConfidentia Information and Invention Assignment Agreement is dated as of J une 4, 2019 by and between\nRenovaCare Inc., a Nevada corporation (the "RCAR"), and Roger Esteban-Vives, an individual having his place of\nbusiness in London, England ("Consultant").\nAs a condition of becoming retained (or Consultant's consulting relationship being continued) by RCAR, or any of\nits current or future subsidiaries, affiliates, successors or assigns (collectively, the "Company"), and in consideration\nof\nConsultant's consulting relationship with the Company and receipt of the compensation now and hereafter paid by the\nCompany, the receipt of Confidential Information (as defined below) while associated with the Company, and other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Consultant hereby agrees to\nthe following:\n1.\nRelationship. This Confidentia Information and Invention Assignment Agreement (this\n"Agreement") will apply to Consultant's consulting relationship with the Company. If that relationship ends and the\nCompany, within one (1) year thereafter, either employs Consultant or re-engages Consultant as a consultant, this\nAgreement will also apply to such later employment or consulting relationship, unless the parties hereto otherwise agree\nin writing. Any employment or consulting relationship between the parties hereto, whether commenced prior to, upon or\nafter the date of this Agreement, is referred to herein as the "Relationship."\n-2-\n2.\nApplicability to Past Activities. The Company and Consultant acknowledge that Consultant may\nhave performed work, activities, services or made efforts on behalf of or for the benefit of the Company, or related to the\ncurrent or prospective business of the Company in anticipation of Consultant's involvement with the Company, that would\nhave been "Services" if performed during the term of this Agreement, for a period of time prior to the Effective Date of this\nAgreement (the "Prior Consulting Period"). Accordingly, if and to the extent that, during the rior Consulting Period: (i)\nConsultant received access to any information from or on behalf of the Company that would have been Confidentia\nInformation (as defined below) if Consultant received access to such information during the term of this Agreement; or (ii)\nConsultant (a) conceived, created, authored, invented, developed or reduced to practice any item (including any\nintellectual property rights with respect thereto) on behalf of or for the benefit of the Company, or related to the current or\nprospective business of the Company in anticipation of Consultant's involvement with the Company, that would have\nbeen an Invention (as defined below) if conceived, created, authored, invented, developed or reduced to practice during\nthe term of this Agreement; or (b) incorporated into any such item any pre-existing invention, improvement, development,\nconcept, discovery or other proprietary information that would have been a rior Invention (as defined below) if\nincorporated into such item during the term of this Agreement; then any such information shall be deemed "Confidential\nInformation" hereunder and any such item shall be deemed an "Invention" or "Prior Invention" hereunder, and\nthis\nAgreement shall apply to such activities, information or item as if disclosed, conceived, created, authored, invented,\ndeveloped or reduced to practice during the term of this Agreement.\n3.\nExecutive Services Consulting Agreement. Consultant has entered into an agreement with the\nCompany on or about the date hereof to provide various services to the Company (the "Consulting Agreement"). The\nservices rendered by Consultant under the Consulting Agreement are referred to herein as the "Services" and this\nAgreement is intended to supplement and form an integral part of the Consulting Agreement.\n4.\nConfidential Information.\n(a)\nProtection of Information. Consultant understands that during the Relationship, the\nCompany intends to provide Consultant with certain information, including Confidential Information (as defined below),\nwithout which C onsultant would not be able to perform Consultant's duties to the Company. At all times during the term of\nthe Relationship and thereafter, Consultant shall hold in strictest confidence, and not use, except for the benefit of the\nCompany to the extent necessary to perform the Services, and not disclose to any person, firm, corporation or other\nentity, without written authorization from the Company in each instance, any Confidential Information that Consultant\nobtains from the Company or otherwise obtains, accesses or creates in connection with, or as a result of, the Services\nduring the term of the Relationship, whether or not during working hours, until such Confidentia Information becomes\npublicly and widely known and made generally available through no wrongful act of Consultant or of others who were\nunder confidentiality obligations as to the item or items involved. Consultant shall not make copies of such Confidentia\nInformation except as authorized by the Company or in the ordinary course of the provision of Services.\n-3-\n(b)\nConfidential Information. Consultant understands that "Confidential Information" means\nany and all information and physical manifestations thereof not generally known or available outside the Company and\ninformation and physical manifestations thereof entrusted to the Company in confidence by third parties, whether or not\nsuch information is patentable, copyrightable or otherwise legally protectable. Confidential Information includes, without\nlimitation: (i) Company Inventions (as defined below); and (ii) technical data, trade secrets, know-how, research, product\nor service ideas or plans, software codes and designs, algorithms, developments, inventions, patent applications,\nlaboratory notebooks, processes, formulas, techniques, biological materials, mask works, engineering designs and\ndrawings, hardware configuration information, agreements with third parties, lists of, or information relating to, employees\nand consultants of the Company (including, but not limited to, the names, contact information, jobs, compensation, and\nexpertise of such employees and consultants), lists of, or information relating to, suppliers and customers (including, but\nnot limited to, customers of the Company on whom Consultant called or with whom Consultant became acquainted\nduring the Relationship), price lists, pricing methodologies, cost data, market share data, marketing plans, licenses,\ncontract information, business plans, financial forecasts, historical financial data, budgets or other business information\ndisclosed to Consultant by the Company either directly or indirectly, whether in writing, electronically, orally, or by\nobservation.\nThe Consultant understands that the above list is not exhaustive, and that Confidential Information also includes\nother information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a\nreasonable person to be confidential or proprietary in the context and circumstances in which the information is known or\nused. The Consultant understands and agrees that Confidentia Information developed by him or her in the course of his\nengagement with the Company shall be subject to the terms and conditions of this Agreement as if the Company\nfurnished the same Confidential Information to the Consultant in the first instance. Confidential Information shall not\ninclude information that is generally available to and known by the public, provided that such disclosure to the public is\nthrough no direct or indirect fault of the Consultant or person(s) acting on the Consultant's behalf.\n(c)\nThird Party Information. Consultant's agreements in this Section 4 are intended to be for\nthe benefit of the Company and any third party that has entrusted information or physical material to the Company in\nconfidence. During the term of the Relationship and thereafter, Consultant will not improperly use or disclose to the\nCompany any confidential, proprietary or secret information of Consultant's former clients or any other person, and\nConsultant will not bring any such information onto the Company's property or place of business.\n(d)\nOther Rights This Agreement is intended to supplement and not to supersede, any rights\nthe Company may have in law or equity with respect to the protection of trade secrets or confidential or proprietary\ninformation.\n(e)\nU.S. Defend Trade Secrets Act. Notwithstanding the foregoing, the U.S. Defend Trade\nSecrets Act of 2016 ("DTSA") provides that an individual shall not be held criminally or civilly liable under any federal or\nstate trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state, or local\ngovernment official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or\ninvestigating a suspected violation of law; or (iii) in a complaint or other document filed in a lawsuit or other proceeding, if\nsuch filing is made under seal In addition, DTSA provides that an individual who files a lawsuit for retaliation by an\nemployer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use\nthe trade secret information in the court proceeding, if the individua (A) files any document containing the trade secret\nunder seal; and (B) does not disclose the trade secret, except pursuant to court order.\n-4-\n(f)\nDisclosure Required by Law. Nothing herein shall be construed to prevent disclosure of\nConfidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of\ncompetent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of\ndisclosure required by such law, regulation or order. The Consultant shall provide written notice of any such order to the\nCompany's Chief Executive Officer or Chief Operating Officer within forty-eight (48) hours of receiving such order, but in\nany event sufficiently in advance of making any disclosure to permit the Company to contest the order or seek\nconfidentiality protections, as determined in the Company's sole discretion.\n5.\nOwnership of Inventions.\n(a)\nInventions Retained and Licensed. Consultant has attached hereto, as Exhibit a\ncomplete list describing with particularity all Inventions (as defined below) that, as of the Effective Date: (i) have been\ncreated by or on behalf of Consultant, and/or (ii) are owned exclusively by Consultant or jointly by Consultant with others\nor in which Consultant has an interest, and that relate in any way to any of the Company's actual or proposed\nbusinesses, products, services, or research and development, and which are not assigned to the Company hereunder\n(collectively "Prior Inventions"); or, if no such list is attached, Consultant represents and warrants that there are no such\nInventions at the time of signing this Agreement, and to the extent such Inventions do exist and are not listed on\nExhibit Consultant hereby forever waives any and all rights or claims of ownership to such Inventions. Consultant\nunderstands that Consultant's listing of any Inventions on Exhibit A does not constitute an acknowledgement by the\nCompany of the existence or extent of such Inventions, nor of Consultant's ownership of such Inventions.\n(b)\nUse or Incorporation of Inventions. Consultant shall not use, disclose or disseminate any\nof the Company's Confidential Information except as specifically permitted in this Section 5. Consultant may use the\nConfidential Information of the Company solely to perform his obligations under this Agreement for the benefit of the\nCompany. Consultant will exercise the same degree of care as it takes to protect his own confidential information, but in\nno event less than reasonable care. The Consultant may not incorporate any Inventions into any business, venture,\nacademic, other pursuit that Consultant may engage in during or following the termination of the Relationship. If in the\ncourse of the Relationship, Consultant uses or incorporates into any of the Company's products, services, processes or\nmachines any Invention not assigned to the Company pursuant to Section 5(d) of this Agreement in which Consultant\nhas an interest, Consultant will promptly so inform the Company in writing. Whether or not Consultant gives such notice,\nConsultant hereby irrevocably grants to the Company a nonexclusive, fully paid-up, royalty-free, assumable, perpetual,\nworldwide license, with right to transfer and to sublicense, to practice and exploit such Invention and to make, have\nmade, copy, modify, make derivative works of, use, sell, import, and otherwise distribute such Invention under all\napplicable intellectual property laws without restriction of any kind. The Consultant may not incorporate any Inventions\ninto any business, venture, academic, other pursuit that Consultant may engage in during or following the termination of\nthe Relationship.\n-5-\n(c)\nInventions. Consultant understands that "Inventions" means discoveries, developments,\nconcepts, designs, ideas, know how, modifications, improvements, derivative works, inventions trade secrets and/or\noriginal works of authorship, whether or not patentable, copyrightable or otherwise legally protectable. Consultant\nunderstands this includes, but is not limited to, any new product, machine, article of manufacture, biological material,\nmethod, procedure, process, technique, use, equipment, device, apparatus, system, compound, formulation, composition\nof matter, design or configuration of any kind, or any improvement thereon. Consultant understands that "Company\nInventions" means any and all Inventions that Consultant or Consultant's personnel may solely or jointly author,\ndiscover, develop, conceive, or reduce to practice in connection with, or as a result of, the Services performed for the\nCompany or otherwise in connection with the Relationship, except as otherwise provided in Section 5(i) below.\n(d)\nAssignment of Company Inventions. Consultant will promptly make full written disclosure\nto the Company, will hold in trust for the sole right and benefit of the Company, and hereby assigns to the Company, or\nits designee, all of Consultant's right, title and interest throughout the world in and to any and all Company Inventions and\nall patent, copyright, trademark, trade secret and other intellectua property rights and other proprietary rights therein.\nConsultant hereby waives and irrevocably quitclaims to the Company or its designee any and all claims, of any nature\nwhatsoever, that Consultant now has or may hereafter have for infringement of any and all Company Inventions. Any\nassignment of Company Inventions includes all rights of attribution, paternity, integrity, modification, disclosure and\nwithdrawal, and any other rights throughout the world that may be known as or referred to as "moral rights," "artist's\nrights," "droit moral," or the like (collectively, "Moral Rights") To the extent that Moral Rights cannot be assigned under\napplicable law, Consultant hereby waives and agrees not to enforce any and all Moral Rights, including, without\nlimitation, any limitation on subsequent modification, to the extent permitted under applicable law. If Consultant has any\nrights to the Company Inventions, other than Moral Rights, that cannot be assigned to the Company, Consultant hereby\nunconditionally and irrevocably grants to the Company during the term of such rights, an exclusive, irrevocable,\nperpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sublicensees,\nto reproduce, distribute, display, perform, prepare derivative works of and otherwise modify, make, have made, sell, offer\nto sell, import, practice methods, processes and procedures and otherwise use and exploit, such Company Inventions.\n-6-\n(e)\nWork for Hire. The Consultant agrees that all marketing, operating and training ideas,\nsourcing data, processes and materials, including all inventions, discoveries, improvements, enhancements, written\nmaterials and development related to the business of the Company ("Proprietary Materials") to which the Consultant\nmay have access or that the Consultant may develop or conceive while employed by the Company shall be considered\nworks made for hire for the Company and prepared within the scope of employment and shall belong exclusively to the\nCompany. Any Proprietary Materials developed by the Consultant that, under applicable law, may not be considered\nworks made for hire, are hereby assigned to the Company without the need for any further consideration, and the\nConsultant agrees to take such further action, including executing such instruments and documents as the Company may\nreasonably request, to evidence such assignment.\n(f)\nNo License. The Consultant understands that this Agreement does not, and shall not be\nconstrued to, grant the Consultant any license or right of any nature with respect to any roprietary Materials, Moral\nRights, any Confidentia Information, materials, software or other tools made available to him or her by the Company, or\nother intellectual property rights relating thereto.\n(g)\nMaintenance of Records. Consultant shall keep and maintain adequate and current written\nrecords of all Company Inventions made or conceived by Consultant or Consultant's personne (solely or jointly with\nothers) during the term of the Relationship. The records may be in the form of notes, sketches, drawings, flow charts,\nelectronic data or recordings, laboratory notebooks, or any other format. The records will be available to and remain the\nsole property of the Company at all times. Consultant shall not remove such records from the Company's place of\nbusiness or systems except as expressly permitted by Company policy which may, from time to time, be revised at the\nsole election of the Company for the purpose of furthering the Company's business. Consultant shall deliver all such\nrecords (including any copies thereof) to the Company at the time of termination of the Relationship as provided for in\nSection 6 and Section 7.\n(h)\nIntellectual Property Rights. Consultant shall assist the Company, or its designee, at its\nexpense, in every proper way in securing the Company's, or its designee's, rights in the Company Inventions and any\ncopyrights, patents, trademarks, mask work rights, Moral Rights, or other intellectual property rights relating thereto in\nany and all countries, including the disclosure to the Company or its designee of all pertinent information and data with\nrespect thereto, the execution of all applications, specifications, oaths, assignments, recordations, and all other\ninstruments which the Company or its designee shall deem necessary in order to apply for, obtain, maintain and transfer\nsuch rights, or if not transferable, waive and shal never assert such rights, and in order to assign and convey to the\nCompany or its designee, and any successors, assigns and nominees the sole and exclusive right, title and interest in\nand to such Company Inventions, and any copyrights, patents, mask work rights or other intellectual property rights\nrelating thereto. Consultant's obligation to execute or cause to be executed, when it is in Consultant's power to do so,\nany such instrument or papers shall continue during and at all times after the end of the Relationship and until the\nexpiration of the last such intellectual property right to expire in any country of the world. Consultant hereby irrevocably\ndesignates and appoints the Company and its duly authorized officers and agents as Consultant's agent and\nattorney-in-fact to act for and in Consultant's behalf and stead to execute and file any such instruments and papers and\nto do all other lawfully permitted acts to further the application for, prosecution, issuance, maintenance or transfer of\nletters patent, copyright, mask work and other registrations related to such Company Inventions. This power of attorney is\ncoupled with an interest and shall not be affected by Consultant's subsequent incapacity.\n-7-\n(i)\nException to Assignments. ubject to the requirements of applicable state law, if any,\nexempting certain Company Inventions, from the assignment provisions of this Agreement Consultant understands that\nall Company Inventions must be, and are, assigned to the Company pursuant to this Agreement In order to assist in the\ndetermination of which inventions qualify for such state law exclusion, Consultant will advise the Company promptly in\nwriting, during and for a period of forty-eight (48) months immediately following the termination of the Relationship, of all\nInventions solely or jointly conceived or developed or reduced to practice by Consultant or Consultant's personnel during\nthe period of the elationship.\n6.\nCompany Property; Returning Company Documents. Consultant acknowledges that Consultant\nhas no expectation of privacy with respect to the Company's telecommunications, networking or information processing\nsystems (including, without limitation, files, e-mail messages, and voice messages) and that C onsultant's activity and any\nfiles or messages on or using any of those systems may be monitored or reviewed at any time without notice. Consultant\nfurther acknowledges that any property situated on the Company's premises or systems and owned by the Company,\nincluding disks and other storage media, filing cabinets or other work areas, is subject to inspection by Company\npersonnel at any time with or without notice. At the time of termination of the Relationship, Consultant will deliver to the\nCompany (and will not keep in Consultant's possession, recreate or deliver to anyone else) any and all devices, records,\ndata, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, laboratory\nnotebooks, materials, flow charts, equipment, other documents or property, or reproductions of any of the\naforementioned items developed by Consultant or Consultant's personnel pursuant to the Relationship or otherwise\nbelonging to the Company, its successors or assigns.\n7.\nTermination Certification. In the event of the termination of the Relationship, Consultant shall sign\nand deliver the "Termination Certification" attached hereto as Exhibit B; however, Consultant's failure to sign and\ndeliver the Termination Certification shall in no way diminish Consultant's continuing obligations under this Agreement.\n8.\nNotice to Third Parties. During the periods of time during which Consultant is restricted in taking\ncertain actions by the terms of Section 9 of this Agreement (the "Restriction Period") Consultant shall inform any entity\nor person with whom Consultant may seek to enter into a business relationship (whether as an owner, employee,\nindependent contractor or otherwise) of Consultant's contractua obligations under this Agreement. Consultant\nacknowledges that the Company may, with or without prior notice to Consultant and whether during or after the term of\nthe Relationship, notify third parties of Consultant's agreements and obligations under this Agreement. Upon written\nrequest by the Company, Consultant will respond to the Company in writing regarding the status of Consultant's\nengagement or proposed engagement with any party during the Restriction Period.\n-8-\n9.\nSolicitation of Employees, Consultants and Other Parties. As described above, Consultant\nacknowledges that the Company's Confidential Information includes information relating to the Company's employees,\nconsultants, customers and others, and Consultant will not use or disclose such Confidential Information except as\nauthorized by the Company in advance in writing. Consultant further agrees as follows:\n(a)\nEmployees, Consultants. During the term of the Relationship, and for a period of twelve\n(12) months immediately following the termination of the Relationship for any reason, whether with or without cause,\nConsultant shall not, directly or indirectly, solicit any of the Company's employees or consultants to terminate their\nrelationship with the Company, or attempt to solicit employees or consultants of the Company, either for Consultant or for\nany other person or entity.\n(b)\nOther Parties. During the term of the Relationship, Consultant will not influence any of the\nCompany's clients, licensors, licensees or customers from purchasing Company products or services or solicit or\ninfluence or attempt to influence any client, licensor, licensee, customer or other person either directly or indirectly, to\ndirect any purchase of products and/or services to any person, firm, corporation, institution or other entity in competition\nwith the business of the Company.\n10.\nNo Change to Duration of Relationship Consultant understands and acknowledges that this\nAgreement does not alter, amend or expand upon any rights Consultant may have to continue in the consulting\nrelationship with, or in the duration of Consultant's consulting relationship with, the Company under any existing\nagreements between the Company and Consultant, including without limitation the Consulting Agreement, or under\napplicable law.\n11.\nRepresentations and Covenants.\n(a)\nFacilitation of Agrement. Consultant shall execute promptly, both during and after the end of the\nRelationship, any proper oath, and to verify any proper document, required to carry out the terms of this Agreement upon\nthe Company's written request to do so.\n(b)\nNo Conflicts. Consultant represents and warrants that Consultant's performance of all the terms\nof this Agreement does not and will not breach any agreement Consultant has entered into, or will enter into, with any\nthird\nparty,\nincluding without limitation any agreement to keep in confidence proprietary information or materials acquired\nby Consultant in confidence or in trust prior to or during the Relationship. Consultant will not disclose to the Company or\nuse any inventions, confidential or non-public proprietary information or material belonging to any previous client,\nemployer or any other party. Consultant will not induce the Company to use any inventions, confidential or non-public\nproprietary information, or material belonging to any previous client, employer or any other party. Consultant represents\nand warrants that Consultant has listed on Exhibit C all agreements (e.g., non-competition agreements, non-solicitation\nof customers agreements, non-solicitation of employees agreements, confidentiality agreements, inventions agreements,\netc.), if any, with a current or former client, employer, or any other person or entity, that may restrict Consultant's\nability\nto\nperform services for the Company or Consultant's ability to recruit or engage customers or service providers on behalf of\nthe Company, or otherwise relate to or restrict Consultant's ability to perform Consultant's duties for the Company or any\nobligation Consultant may have to the Company. Consultant shall not enter into any written or oral agreement that\nconflicts with the provisions of this Agreement.\n-9-\n(c)\nNo Other Consulting Agreements. Consultant represents and warrants that Consultant does\nnot presently perform nor will he perform, during the term of the Agreement, consulting or other services for, or engage in\nor intend to engage in an employment relationship with, companies whose businesses or proposed businesses in any\nway, in the opinion of the Company, involve products or services which would be competitive with the Company's\nproducts or services, or those products or services proposed or in development by the Company during the term of the\nAgreement or would adversely affect the Consult's ability to perform the Services hereunder. If, however, Consultant\ndesire to perform such services for a third party, Consultant agrees that, in advance of accepting such work, Consultant\nwill promptly notify the Company in writing, specifying the organization with which Consultant proposes to consult,\nprovide services, or become employed by and to provide information sufficient to allow the Company to determine if such\nwork would conflict with the terms of this Agreement, including the terms of the Confidentiality Agreement (defined\nbelow), the interests of the Company or further services which the Company might request of Consultant. If the Company\ndetermines, in its so discretion, that such work conflicts with the terms of this Agreement, the Consultant shall not\nundertake such engagements. Nothing herein shall be deemed to release the Consultant with respect to his obligations\nwith respect to the Confidential Information pursuant to this Agreement.\n(d)\nNon-Competition and Non-Solicitation and Non-Circumvention.\n(i)\nNon-Competition. Except as authorized by the Company's Board of Directors, during the\nterm of the Relationship and for a period of twelve (12) months thereafter, the Consultant will not (except as an officer,\ndirector, stockholder, employee, agent or consultant of the Company or any subsidiary or affiliate thereof) either directly\nor indirectly, whether or not for consideration, (i) in any way, directly or indirectly, solicit, divert, or take away the business\nof\nany person who is or was a customer of the Company, or in any manner influence such person to cease doing\nbusiness in part or in whole with Company; (ii) engage in a Competing Business; or (iii) except for investments or\nownership in public entities, mutual funds and similar investments, none of which constitute more than 5% of the\nownership (provided such ownership interest is acquired solely for investment purposes) or control of such entities, own,\noperate, control, finance, manage, advise, be employed by or engaged by, perform any services for, invest or otherwise\nbecome associated in any capacity with any person engaged in a Competing Business; or (iv) engage in any practice the\npurpose or effect of which is to intentionally evade the provisions of this covenant. For purposes of this section,\n"Competing Business" means any company or business which is engaged directly or indirectly in any Company\nBusiness carried on or planned to be carried on (if such plans were developed the term of the Relationship) by the\nCompany; and "Company Business" means the Company's business activities and operations as conducted during the\nterm of the Relationship and all products conceived, planned, researched, developed, tested, manufactured, sold,\nlicensed, leased or otherwise distributed or put into use by the Company, together with all services provided or planned\nby the Company, during your relationship with the Company.\n-10-\n(ii)\nNon-Solicitation and Non-Circumvention. F or a period of twelve (12) months following\nthe termination of the Relationship, the Consultant wil not directly or indirectly, whether for your account or for the\naccount of any other individual or entity, solicit or canvas the trade, business or patronage of, or sell to, any individuals or\nentities that were investors, customers or employees of the Company during the term of this Agreement, or prospective\ncustomers with respect to whom a sales effort presentation or proposal was made by the Company or its affiliates,\nduring the one year period prior to the termination of the Relationship Without limiting the foregoing, the Consultant shall\nnot, directly or indirectly (i) solicit, induce, enter into any agreement with, or attempt to influence any individual who was\nan employee or consultant of the Company at any time during the term of Relationship, to terminate his or her\nemployment relationship with the Company or to become employed or engaged by the Consultant or any individual or\nentity by which the Consultant are employed or for which you are acting as a consultant or other advisory capacity,\nand/or (ii) interfere in any other way with the employment, or other relationship, of any employee of, or consultant to, the\nCompany.\n(iii\nInjunctive Relief. The Consultant acknowledges and agrees that the covenants and\nobligations of the Consultant set forth in this Agreement relate to special, unique and extraordinary Services rendered by\nthe Consultant to the Company and that a violation of any of the terms of such covenants and obligations will cause the\nCompany irreparable injury for which adequate remedies are not available at law. Therefore, the Consultant agrees that\nthe Company shall be entitled to seek an injunction, restraining order or other temporary or permanent equitable relief\n(without the requirement to post bond) restraining the Consultant from committing any violation of the covenants and\nobligations contained herein. These injunctive remedies are cumulative and are in addition to any other rights and\nremedies the Company may have at law or in equity.\n-11-\n(e)\nVoluntary Execution. Consultant certifies and acknowledges that Consultant has carefully read\nall of the provisions of this Agreement, that Consultant understands and has voluntarily accepted such provisions, and\nthat Consultant will fully and faithfully comply with such provisions.\n12.\nElectronic Delivery. Nothing herein is intended to imply a right to participate in any of the\nCompany's equity incentive plans, however, if Consultant does participate in such plan(s), the Company may, in its sole\ndiscretion, decide to deliver any documents related to Consultant's participation in the Company's equity incentive plan(s)\nby electronic means or to request Consultant's consent to participate in such plan(s) by electronic means. Consultant\nhereby consents to receive such documents by electronic delivery and agrees, if applicableto participate in such plan(s)\nthrough an on-line or electronic system established and maintained by the Company or a third party designated by the\nCompany.\n13.\nMiscellaneous.\n(a)\nGoverning Law. The validity, interpretation, construction and performance of this\nAgreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be\ngoverned, construed and interpreted in accordance with the laws of the state of Nevada, without giving effect to principles\nof conflicts of law. Consultant acknowledges that he may not have the rights and privileges under applicable Nevada law\nthat he might otherwise have under the applicable laws of the United Kingdom with respect to this Agreement which he\nhereby knowingly and willingly waives.\n(b)\nEntire Agreement. Except as described in Section 3, this Agreement sets forth the entire\nagreement and understanding between the Company and Consultant relating to its subject matter and merges all prior\ndiscussions between the parties to this Agreement No amendment to this Agreement will be effective unless in writing\nsigned by both parties to this Agreement The Company shall not be deemed hereby to have waived any rights or\nremedies it may have in law or equity, nor to have given any authorizations or waived any of its rights under this\nAgreement, unless, and only to the extent, it does so by a specific writing signed by a duly authorized officer of the\nCompany. Any subsequent change or changes in Consultant's duties, obligations, rights or compensation will not affect\nthe validity or scope of this Agreement.\n(c)\nSuccessors and Assigns. This Agreement will be binding upon Consultant's successors\nand assigns, and will be for the benefit of the Company, its successors, and its assigns.\n(d)\nNotices. Any notice, demand or request required or permitted to be given under this\nAgreement shall be in writing and shall be deemed sufficient when delivered personally or by overnight courier or sent by\nemail, or 48 hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to\nthe party to be notified at such party's address as set forth on the signature page, as subsequently modified by written\nnotice, or if no address is specified on the signature page, at the most recent address set forth in the Company's books\nand records.\n-12-\n(e)\nSeverability. If one or more of the provisions in this Agreement are deemed void or\nunenforceable to any extent in any context, such provisions shall nevertheless be enforced to the fullest extent allowed\nby law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected. The\nCompany and Consultant have attempted to limit Consultant's right to use, maintain and disclose the Company's\nConfidential Information and to limit Consultant's right to solicit employees and customers only to the extent necessary to\nprotect the Company from unfair competition. Should a court of competent jurisdiction determine that the scope of the\ncovenants contained in Section 9 and 11 exceeds the maximum restrictiveness such court deems reasonable and\nenforceable, the parties intend that the court should reform, modify and enforce the provision to such narrower scope\nas\nit determines to be reasonable and enforceable under the circumstances existing at that time. In the event that any court\nor government agency of competent jurisdiction determines that, notwithstanding the terms of the Consulting Agreement\nspecifying Consultant's Relationship with the Company as that of an independent contractor, Consultant's provision of\nservices to the Company is not as an independent contractor but instead as an employee under the applicable laws, then\nsolely to the extent that such determination is applicable, references in this Agreement to the Relationship between\nConsultant and the Company shall be interpreted to include an employment relationship, and this Agreement shall not be\ninvalid and unenforceable but shall be read to the fullest extent as may be valid and enforceable under the applicable\nlaws to carry out the intent and purpose of this Agreement.\n(f)\nRemedies. Consultant acknowledges that violation of this Agreement by Consultant may\ncause the Company irreparable harm, and therefore Consultant agrees that the Company will be entitled to seek\nextraordinary relief in court including, but not limited to, temporary restraining orders, preliminary injunctions and\npermanent injunctions without the necessity of posting a bond or other security (or, where such a bond or security is\nrequired, that a $1,000 bond will be adequate) in addition to and without prejudice to any other rights or remedies that\nthe Company may have for a breach of this Agreement.\n(g)\nAdvice of Counsel. Consultant acknowledges THAT, IN EXECUTING THIS AGREEMENT,\nConsultant Has HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND\nConsultant Has read and understands ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS\nAGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR\nPREPARATION HEREOF.\n(h)\nCounterparts. This Agreement may be executed in any number of counterparts, each of\nwhich when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the\nsame agreement. Execution of a facsimile or scanned copy will have the same force and effect as execution of an\noriginal, and a facsimile or scanned signature wil be deemed an original and valid signature.\n-13-\n(i)\nEffective Date. Regardless of the date on which this Agreement is executed by the parties\nhereto, the effective date of this Agreement is J une 1, 2019.\n[Signature Page Follows]\n-14-\nSIGNATURES\nThe parties have executed this Confidential Information and Invention Assignment Agreement on the respective dates set\nforth below, to be effective as of the Effective Date first above written.\nthe company:\nrenovacare, Inc.\nBy: /s/ Harme S. Rayat\n(Signature)\nName: Harmel S. Rayat\nTitle: Chief Executive Officer\nAddress:\nRenovaCare Inc.\n9375 East Shea Blvd.,\nSuite 107-A\nScottsdale, AZ 85260\nAttention: Harmel S. Rayat\nFacsimile: 604-336-8609\nEmail Address: hsr@ renovacareinc.com\nCONSULTANT:\nRoger Esteban-Vives\n(Print Name)\n/s/ Roger Esteban-Vives\n(Signature)\nAddress:\nRoger Esteban_Viives\nFlat 1, 3 Recovery St.\nLondon, SW170DL, United Kingdom\nEmail:\nFacsimile:\n42	EXHIBIT D\nTO THE RENOVACARE, INC.— ROGER ESTEBAN-VIVES\nCONSULTING AGREEMENT\nDATED\nJUNE 4, 2019\n****\nConfidential information and\ninvention assignment agreement\nRENOVACARE, INC.\nCONFIDENTIAL INFORMATION AND\nINVENTION ASSIGNMENT AGREEMENT\nConfidential Information and Invention Assignment Agreement is dated as of June 4, 2019 by and between\nRenovaCare, Inc., a Nevada corporation (the “RCAR”), and Roger Esteban-Vives, an individual having his place of\nbusiness in London, England (“Consultant”).\nAs a condition of becoming retained (or Consultant’s consulting relationship being continued) by RCAR, or any of\nits current or future subsidiaries, affiliates, successors or assigns (collectively, the “Company”), and in consideration of\nConsultant’s consulting relationship with the Company and receipt of the compensation now and hereafter paid by the\nCompany, the receipt of Confidential Information (as defined below) while associated with the Company, and other good\nand valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Consultant hereby agrees to\nthe following:\n1.\nRelationship. This Confidential Information and Invention Assignment Agreement (this\n“Agreement”) will apply to Consultant’s consulting relationship with the Company. If that relationship ends and the\nCompany, within one (1) year thereafter, either employs Consultant or re-engages Consultant as a consultant, this\nAgreement will also apply to such later employment or consulting relationship, unless the parties hereto otherwise agree\nin writing. Any employment or consulting relationship between the parties hereto, whether commenced prior to, upon or\nafter the date of this Agreement, is referred to herein as the “Relationship.”\n-2-\n2.\nApplicability to Past Activities. The Company and Consultant acknowledge that Consultant may\nhave performed work, activities, services or made efforts on behalf of or for the benefit of the Company, or related to the\ncurrent or prospective business of the Company in anticipation of Consultant’s involvement with the Company, that would\nhave been “Services” if performed during the term of this Agreement, for a period of time prior to the Effective Date of this\nAgreement (the “Prior Consulting Period”). Accordingly, if and to the extent that, during the Prior Consulting Period: (i)\nConsultant received access to any information from or on behalf of the Company that would have been Confidential\nInformation (as defined below) if Consultant received access to such information during the term of this Agreement; or (ii)\nConsultant (a) conceived, created, authored, invented, developed or reduced to practice any item (including any\nintellectual property rights with respect thereto) on behalf of or for the benefit of the Company, or related to the current or\nprospective business of the Company in anticipation of Consultant’s involvement with the Company, that would have\nbeen an Invention (as defined below) if conceived, created, authored, invented, developed or reduced to practice during\nthe term of this Agreement; or (b) incorporated into any such item any pre-existing invention, improvement, development,\nconcept, discovery or other proprietary information that would have been a Prior Invention (as defined below) if\nincorporated into such item during the term of this Agreement; then any such information shall be deemed “Confidential\nInformation” hereunder and any such item shall be deemed an “Invention” or “Prior Invention” hereunder, and this\nAgreement shall apply to such activities, information or item as if disclosed, conceived, created, authored, invented,\ndeveloped or reduced to practice during the term of this Agreement.\n3.\nExecutive Services Consulting Agreement. Consultant has entered into an agreement with the\nCompany on or about the date hereof to provide various services to the Company (the “Consulting Agreement”). The\nservices rendered by Consultant under the Consulting Agreement are referred to herein as the “Services” and this\nAgreement is intended to supplement and form an integral part of the Consulting Agreement.\n4.\nConfidential Information.\n(a)\nProtection of Information. Consultant understands that during the Relationship, the\nCompany intends to provide Consultant with certain information, including Confidential Information (as defined below),\nwithout which Consultant would not be able to perform Consultant’s duties to the Company. At all times during the term of\nthe Relationship and thereafter, Consultant shall hold in strictest confidence, and not use, except for the benefit of the\nCompany to the extent necessary to perform the Services, and not disclose to any person, firm, corporation or other\nentity, without written authorization from the Company in each instance, any Confidential Information that Consultant\nobtains from the Company or otherwise obtains, accesses or creates in connection with, or as a result of, the Services\nduring the term of the Relationship, whether or not during working hours, until such Confidential Information becomes\npublicly and widely known and made generally available through no wrongful act of Consultant or of others who were\nunder confidentiality obligations as to the item or items involved. Consultant shall not make copies of such Confidential\nInformation except as authorized by the Company or in the ordinary course of the provision of Services.\n-3-\n(b)\nConfidential Information. Consultant understands that “Confidential Information” means\nany and all information and physical manifestations thereof not generally known or available outside the Company and\ninformation and physical manifestations thereof entrusted to the Company in confidence by third parties, whether or not\nsuch information is patentable, copyrightable or otherwise legally protectable. Confidential Information includes, without\nlimitation: (i) Company Inventions (as defined below); and (ii) technical data, trade secrets, know-how, research, product\nor service ideas or plans, software codes and designs, algorithms, developments, inventions, patent applications,\nlaboratory notebooks, processes, formulas, techniques, biological materials, mask works, engineering designs and\ndrawings, hardware configuration information, agreements with third parties, lists of, or information relating to, employees\nand consultants of the Company (including, but not limited to, the names, contact information, jobs, compensation, and\nexpertise of such employees and consultants), lists of, or information relating to, suppliers and customers (including, but\nnot limited to, customers of the Company on whom Consultant called or with whom Consultant became acquainted\nduring the Relationship), price lists, pricing methodologies, cost data, market share data, marketing plans, licenses,\ncontract information, business plans, financial forecasts, historical financial data, budgets or other business information\ndisclosed to Consultant by the Company either directly or indirectly, whether in writing, electronically, orally, or by\nobservation.\nThe Consultant understands that the above list is not exhaustive, and that Confidential Information also includes\nother information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a\nreasonable person to be confidential or proprietary in the context and circumstances in which the information is known or\nused. The Consultant understands and agrees that Confidential Information developed by him or her in the course of his\nengagement with the Company shall be subject to the terms and conditions of this Agreement as if the Company\nfurnished the same Confidential Information to the Consultant in the first instance. Confidential Information shall not\ninclude information that is generally available to and known by the public, provided that such disclosure to the public is\nthrough no direct or indirect fault of the Consultant or person(s) acting on the Consultant’s behalf.\n(c)\nThird Party Information. Consultant’s agreements in this Section 4 are intended to be for\nthe benefit of the Company and any third party that has entrusted information or physical material to the Company in\nconfidence. During the term of the Relationship and thereafter, Consultant will not improperly use or disclose to the\nCompany any confidential, proprietary or secret information of Consultant’s former clients or any other person, and\nConsultant will not bring any such information onto the Company’s property or place of business.\n(d)\nOther Rights. This Agreement is intended to supplement, and not to supersede, any rights\nthe Company may have in law or equity with respect to the protection of trade secrets or confidential or proprietary\ninformation.\n(e)\nU.S . Defend Trade Secrets Act. Notwithstanding the foregoing, the U.S . Defend Trade\nSecrets Act of 2016 (“DTSA”) provides that an individual shall not be held criminally or civilly liable under any federal or\nstate trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state, or local\ngovernment official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or\ninvestigating a suspected violation of law; or (iii) in a complaint or other document filed in a lawsuit or other proceeding, if\nsuch filing is made under seal. In addition, DTSA provides that an individual who files a lawsuit for retaliation by an\nemployer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use\nthe trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret\nunder seal; and (B) does not disclose the trade secret, except pursuant to court order.\n-4-\n(f)\nDisclosure Required by Law. Nothing herein shall be construed to prevent disclosure of\nConfidential Information as may be required by applicable law or regulation, or pursuant to the valid order of a court of\ncompetent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of\ndisclosure required by such law, regulation or order. The Consultant shall provide written notice of any such order to the\nCompany’s Chief Executive Officer or Chief Operating Officer within forty-eight (48) hours of receiving such order, but in\nany event sufficiently in advance of making any disclosure to permit the Company to contest the order or seek\nconfidentiality protections, as determined in the Company’s sole discretion.\n5.\nOwnership of Inventions.\n(a)\nInventions Retained and Licensed. Consultant has attached hereto, as Exhibit A, a\ncomplete list describing with particularity all Inventions (as defined below) that, as of the Effective Date: (i) have been\ncreated by or on behalf of Consultant, and/or (ii) are owned exclusively by Consultant or jointly by Consultant with others\nor in which Consultant has an interest, and that relate in any way to any of the Company’s actual or proposed\nbusinesses, products, services, or research and development, and which are not assigned to the Company hereunder\n(collectively “Prior Inventions”); or, if no such list is attached, Consultant represents and warrants that there are no such\nInventions at the time of signing this Agreement, and to the extent such Inventions do exist and are not listed on\nExhibit A, Consultant hereby forever waives any and all rights or claims of ownership to such Inventions. Consultant\nunderstands that Consultant’s listing of any Inventions on Exhibit A does not constitute an acknowledgement by the\nCompany of the existence or extent of such Inventions, nor of Consultant’s ownership of such Inventions.\n(b)\nUse or Incorporation of Inventions. Consultant shall not use, disclose or disseminate any\nof the Company’s Confidential Information except as specifically permitted in this Section 5. Consultant may use the\nConfidential Information of the Company solely to perform his obligations under this Agreement for the benefit of the\nCompany. Consultant will exercise the same degree of care as it takes to protect his own confidential information, but in\nno event less than reasonable care. The Consultant may not incorporate any Inventions into any business, venture,\nacademic, other pursuit that Consultant may engage in during or following the termination of the Relationship. If in the\ncourse of the Relationship, Consultant uses or incorporates into any of the Company’s products, services, processes or\nmachines any Invention not assigned to the Company pursuant to Section 5(d) of this Agreement in which Consultant\nhas an interest, Consultant will promptly so inform the Company in writing. Whether or not Consultant gives such notice,\nConsultant hereby irrevocably grants to the Company a nonexclusive, fully paid-up, royalty-free, assumable, perpetual,\nworldwide license, with right to transfer and to sublicense, to practice and exploit such Invention and to make, have\nmade, copy, modify, make derivative works of, use, sell, import, and otherwise distribute such Invention under all\napplicable intellectual property laws without restriction of any kind. The Consultant may not incorporate any Inventions\ninto any business, venture, academic, other pursuit that Consultant may engage in during or following the termination of\nthe Relationship.\n-5-\n(c)\nInventions. Consultant understands that “Inventions” means discoveries, developments,\nconcepts, designs, ideas, know how, modifications, improvements, derivative works, inventions, trade secrets and/or\noriginal works of authorship, whether or not patentable, copyrightable or otherwise legally protectable. Consultant\nunderstands this includes, but is not limited to, any new product, machine, article of manufacture, biological material,\nmethod, procedure, process, technique, use, equipment, device, apparatus, system, compound, formulation, composition\nof matter, design or configuration of any kind, or any improvement thereon. Consultant understands that “Company\nInventions” means any and all Inventions that Consultant or Consultant’s personnel may solely or jointly author,\ndiscover, develop, conceive, or reduce to practice in connection with, or as a result of, the Services performed for the\nCompany or otherwise in connection with the Relationship, except as otherwise provided in Section 5(i) below.\n(d)\nAssignment of Company Inventions. Consultant will promptly make full written disclosure\nto the Company, will hold in trust for the sole right and benefit of the Company, and hereby assigns to the Company, or\nits designee, all of Consultant’s right, title and interest throughout the world in and to any and all Company Inventions and\nall patent, copyright, trademark, trade secret and other intellectual property rights and other proprietary rights therein.\nConsultant hereby waives and irrevocably quitclaims to the Company or its designee any and all claims, of any nature\nwhatsoever, that Consultant now has or may hereafter have for infringement of any and all Company Inventions. Any\nassignment of Company Inventions includes all rights of attribution, paternity, integrity, modification, disclosure and\nwithdrawal, and any other rights throughout the world that may be known as or referred to as “moral rights,” “artist’s\nrights,” “droit moral,” or the like (collectively, “Moral Rights”). To the extent that Moral Rights cannot be assigned under\napplicable law, Consultant hereby waives and agrees not to enforce any and all Moral Rights, including, without\nlimitation, any limitation on subsequent modification, to the extent permitted under applicable law. If Consultant has any\nrights to the Company Inventions, other than Moral Rights, that cannot be assigned to the Company, Consultant hereby\nunconditionally and irrevocably grants to the Company during the term of such rights, an exclusive, irrevocable,\nperpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sublicensees,\nto reproduce, distribute, display, perform, prepare derivative works of and otherwise modify, make, have made, sell, offer\nto sell, import, practice methods, processes and procedures and otherwise use and exploit, such Company Inventions. .\n-6-\n(e)\nWork for Hire. The Consultant agrees that all marketing, operating and training ideas,\nsourcing data, processes and materials, including all inventions, discoveries, improvements, enhancements, written\nmaterials and development related to the business of the Company (“Proprietary Materials”) to which the Consultant\nmay have access or that the Consultant may develop or conceive while employed by the Company shall be considered\nworks made for hire for the Company and prepared within the scope of employment and shall belong exclusively to the\nCompany. Any Proprietary Materials developed by the Consultant that, under applicable law, may not be considered\nworks made for hire, are hereby assigned to the Company without the need for any further consideration, and the\nConsultant agrees to take such further action, including executing such instruments and documents as the Company may\nreasonably request, to evidence such assignment.\n(f)\nNo License. The Consultant understands that this Agreement does not, and shall not be\nconstrued to, grant the Consultant any license or right of any nature with respect to any Proprietary Materials, Moral\nRights, any Confidential Information, materials, software or other tools made available to him or her by the Company, or\nother intellectual property rights relating thereto.\n(g)\nMaintenance of Records. Consultant shall keep and maintain adequate and current written\nrecords of all Company Inventions made or conceived by Consultant or Consultant’s personnel (solely or jointly with\nothers) during the term of the Relationship. The records may be in the form of notes, sketches, drawings, flow charts,\nelectronic data or recordings, laboratory notebooks, or any other format. The records will be available to and remain the\nsole property of the Company at all times. Consultant shall not remove such records from the Company’s place of\nbusiness or systems except as expressly permitted by Company policy which may, from time to time, be revised at the\nsole election of the Company for the purpose of furthering the Company’s business. Consultant shall deliver all such\nrecords (including any copies thereof) to the Company at the time of termination of the Relationship as provided for in\nSection 6 and Section 7.\n(h)\nIntellectual Property Rights. Consultant shall assist the Company, or its designee, at its\nexpense, in every proper way in securing the Company’s, or its designee’s, rights in the Company Inventions and any\ncopyrights, patents, trademarks, mask work rights, Moral Rights, or other intellectual property rights relating thereto in\nany and all countries, including the disclosure to the Company or its designee of all pertinent information and data with\nrespect thereto, the execution of all applications, specifications, oaths, assignments, recordations, and all other\ninstruments which the Company or its designee shall deem necessary in order to apply for, obtain, maintain and transfer\nsuch rights, or if not transferable, waive and shall never assert such rights, and in order to assign and convey to the\nCompany or its designee, and any successors, assigns and nominees the sole and exclusive right, title and interest in\nand to such Company Inventions, and any copyrights, patents, mask work rights or other intellectual property rights\nrelating thereto. Consultant’s obligation to execute or cause to be executed, when it is in Consultant’s power to do so,\nany such instrument or papers shall continue during and at all times after the end of the Relationship and until the\nexpiration of the last such intellectual property right to expire in any country of the world. Consultant hereby irrevocably\ndesignates and appoints the Company and its duly authorized officers and agents as Consultant’s agent and\nattorney-in-fact, to act for and in Consultant’s behalf and stead to execute and file any such instruments and papers and\nto do all other lawfully permitted acts to further the application for, prosecution, issuance, maintenance or transfer of\nletters patent, copyright, mask work and other registrations related to such Company Inventions. This power of attorney is\ncoupled with an interest and shall not be affected by Consultant’s subsequent incapacity.\n-7-\n(i)\nException to Assignments. Subject to the requirements of applicable state law, if any,\nexempting certain Company Inventions, from the assignment provisions of this Agreement, Consultant understands that\nall Company Inventions must be, and are, assigned to the Company pursuant to this Agreement In order to assist in the\ndetermination of which inventions qualify for such state law exclusion, Consultant will advise the Company promptly in\nwriting, during and for a period of forty-eight (48) months immediately following the termination of the Relationship, of all\nInventions solely or jointly conceived or developed or reduced to practice by Consultant or Consultant’s personnel during\nthe period of the Relationship.\n6.\nCompany Property; Returning Company Documents. Consultant acknowledges that Consultant\nhas no expectation of privacy with respect to the Company’s telecommunications, networking or information processing\nsystems (including, without limitation, files, e-mail messages, and voice messages) and that Consultant’s activity and any\nfiles or messages on or using any of those systems may be monitored or reviewed at any time without notice. Consultant\nfurther acknowledges that any property situated on the Company’s premises or systems and owned by the Company,\nincluding disks and other storage media, filing cabinets or other work areas, is subject to inspection by Company\npersonnel at any time with or without notice. At the time of termination of the Relationship, Consultant will deliver to the\nCompany (and will not keep in Consultant’s possession, recreate or deliver to anyone else) any and all devices, records,\ndata, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, laboratory\nnotebooks, materials, flow charts, equipment, other documents or property, or reproductions of any of the\naforementioned items developed by Consultant or Consultant’s personnel pursuant to the Relationship or otherwise\nbelonging to the Company, its successors or assigns.\n7.\nTermination Certification. In the event of the termination of the Relationship, Consultant shall sign\nand deliver the “Termination Certification” attached hereto as Exhibit B; however, Consultant’s failure to sign and\ndeliver the Termination Certification shall in no way diminish Consultant’s continuing obligations under this Agreement.\n8.\nNotice to Third Parties. During the periods of time during which Consultant is restricted in taking\ncertain actions by the terms of Section 9 of this Agreement (the “Restriction Period”), Consultant shall inform any entity\nor person with whom Consultant may seek to enter into a business relationship (whether as an owner, employee,\nindependent contractor or otherwise) of Consultant’s contractual obligations under this Agreement. Consultant\nacknowledges that the Company may, with or without prior notice to Consultant and whether during or after the term of\nthe Relationship, notify third parties of Consultant’s agreements and obligations under this Agreement. Upon written\nrequest by the Company, Consultant will respond to the Company in writing regarding the status of Consultant’s\nengagement or proposed engagement with any party during the Restriction Period.\n-8-\n9.\nSolicitation of Employees, Consultants and Other Parties. As described above, Consultant\nacknowledges that the Company’s Confidential Information includes information relating to the Company’s employees,\nconsultants, customers and others, and Consultant will not use or disclose such Confidential Information except as\nauthorized by the Company in advance in writing. Consultant further agrees as follows:\n(a)\nEmployees, Consultants. During the term of the Relationship, and for a period of twelve\n(12) months immediately following the termination of the Relationship for any reason, whether with or without cause,\nConsultant shall not, directly or indirectly, solicit any of the Company’s employees or consultants to terminate their\nrelationship with the Company, or attempt to solicit employees or consultants of the Company, either for Consultant or for\nany other person or entity.\n(b)\nOther Parties. During the term of the Relationship, Consultant will not influence any of the\nCompany’s clients, licensors, licensees or customers from purchasing Company products or services or solicit or\ninfluence or attempt to influence any client, licensor, licensee, customer or other person either directly or indirectly, to\ndirect any purchase of products and/or services to any person, firm, corporation, institution or other entity in competition\nwith the business of the Company.\n10.\nNo Change to Duration of Relationship. Consultant understands and acknowledges that this\nAgreement does not alter, amend or expand upon any rights Consultant may have to continue in the consulting\nrelationship with, or in the duration of Consultant’s consulting relationship with, the Company under any existing\nagreements between the Company and Consultant, including without limitation the Consulting Agreement, or under\napplicable law.\n11.\nRepresentations and Covenants.\n(a) Facilitation of Agrement. Consultant shall execute promptly, both during and after the end of the\nRelationship, any proper oath, and to verify any proper document, required to carry out the terms of this Agreement, upon\nthe Company’s written request to do so.\n(b) No Conflicts. Consultant represents and warrants that Consultant’s performance of all the terms\nof this Agreement does not and will not breach any agreement Consultant has entered into, or will enter into, with any\nthird party, including without limitation any agreement to keep in confidence proprietary information or materials acquired\nby Consultant in confidence or in trust prior to or during the Relationship. Consultant will not disclose to the Company or\nuse any inventions, confidential or non-public proprietary information or material belonging to any previous client,\nemployer or any other party. Consultant will not induce the Company to use any inventions, confidential or non-public\nproprietary information, or material belonging to any previous client, employer or any other party. Consultant represents\nand warrants that Consultant has listed on Exhibit C all agreements (e.g., non-competition agreements, non-solicitation\nof customers agreements, non-solicitation of employees agreements, confidentiality agreements, inventions agreements,\netc.), if any, with a current or former client, employer, or any other person or entity, that may restrict Consultant’s ability to\nperform services for the Company or Consultant’s ability to recruit or engage customers or service providers on behalf of\nthe Company, or otherwise relate to or restrict Consultant’s ability to perform Consultant’s duties for the Company or any\nobligation Consultant may have to the Company. Consultant shall not enter into any written or oral agreement that\nconflicts with the provisions of this Agreement.\n-9-\n(c) No Other Consulting Agreements. Consultant represents and warrants that Consultant does\nnot presently perform nor will he perform, during the term of the Agreement, consulting or other services for, or engage in\nor intend to engage in an employment relationship with, companies whose businesses or proposed businesses in any\nway, in the opinion of the Company, involve products or services which would be competitive with the Company’s\nproducts or services, or those products or services proposed or in development by the Company during the term of the\nAgreement or would adversely affect the Consult’s ability to perform the Services hereunder. If, however, Consultant\ndesire to perform such services for a third party, Consultant agrees that, in advance of accepting such work, Consultant\nwill promptly notify the Company in writing, specifying the organization with which Consultant proposes to consult,\nprovide services, or become employed by and to provide information sufficient to allow the Company to determine if such\nwork would conflict with the terms of this Agreement, including the terms of the Confidentiality Agreement (defined\nbelow), the interests of the Company or further services which the Company might request of Consultant. If the Company\ndetermines, in its so discretion, that such work conflicts with the terms of this Agreement, the Consultant shall not\nundertake such engagements. Nothing herein shall be deemed to release the Consultant with respect to his obligations\nwith respect to the Confidential Information pursuant to this Agreement.\n(d) Non-Competition and Non-Solicitation and Non-Circumvention.\n(i) Non-Competition. Except as authorized by the Company’s Board of Directors, during the\nterm of the Relationship and for a period of twelve (12) months thereafter, the Consultant will not (except as an officer,\ndirector, stockholder, employee, agent or consultant of the Company or any subsidiary or affiliate thereof) either directly\nor indirectly, whether or not for consideration, (i) in any way, directly or indirectly, solicit, divert, or take away the business\nof any person who is or was a customer of the Company, or in any manner influence such person to cease doing\nbusiness in part or in whole with Company; (ii) engage in a Competing Business; or (iii) except for investments or\nownership in public entities, mutual funds and similar investments, none of which constitute more than 5% of the\nownership (provided such ownership interest is acquired solely for investment purposes) or control of such entities, own,\noperate, control, finance, manage, advise, be employed by or engaged by, perform any services for, invest or otherwise\nbecome associated in any capacity with any person engaged in a Competing Business; or (iv) engage in any practice the\npurpose or effect of which is to intentionally evade the provisions of this covenant. For purposes of this section,\n“Competing Business” means any company or business which is engaged directly or indirectly in any Company\nBusiness carried on or planned to be carried on (if such plans were developed the term of the Relationship) by the\nCompany; and “Company Business” means the Company’s business activities and operations as conducted during the\nterm of the Relationship and all products conceived, planned, researched, developed, tested, manufactured, sold,\nlicensed, leased or otherwise distributed or put into use by the Company, together with all services provided or planned\nby the Company, during your relationship with the Company.\n-10-\n(ii) Non-Solicitation and Non-Circumvention. For a period of twelve (12) months following\nthe termination of the Relationship, the Consultant will not directly or indirectly, whether for your account or for the\naccount of any other individual or entity, solicit or canvas the trade, business or patronage of, or sell to, any individuals or\nentities that were investors, customers or employees of the Company during the term of this Agreement, or prospective\ncustomers with respect to whom a sales effort, presentation or proposal was made by the Company or its affiliates,\nduring the one year period prior to the termination of the Relationship. Without limiting the foregoing, the Consultant shall\nnot, directly or indirectly (i) solicit, induce, enter into any agreement with, or attempt to influence any individual who was\nan employee or consultant of the Company at any time during the term of Relationship, to terminate his or her\nemployment relationship with the Company or to become employed or engaged by the Consultant or any individual or\nentity by which the Consultant are employed or for which you are acting as a consultant or other advisory capacity,\nand/or (ii) interfere in any other way with the employment, or other relationship, of any employee of, or consultant to, the\nCompany.\n(iii) Injunctive Relief. The Consultant acknowledges and agrees that the covenants and\nobligations of the Consultant set forth in this Agreement relate to special, unique and extraordinary Services rendered by\nthe Consultant to the Company and that a violation of any of the terms of such covenants and obligations will cause the\nCompany irreparable injury for which adequate remedies are not available at law. Therefore, the Consultant agrees that\nthe Company shall be entitled to seek an injunction, restraining order or other temporary or permanent equitable relief\n(without the requirement to post bond) restraining the Consultant from committing any violation of the covenants and\nobligations contained herein. These injunctive remedies are cumulative and are in addition to any other rights and\nremedies the Company may have at law or in equity.\n-1 1-\n(e) Voluntary Execution. Consultant certifies and acknowledges that Consultant has carefully read\nall of the provisions of this Agreement, that Consultant understands and has voluntarily accepted such provisions, and\nthat Consultant will fully and faithfully comply with such provisions.\n12.\nElectronic Delivery. Nothing herein is intended to imply a right to participate in any of the\nCompany’s equity incentive plans, however, if Consultant does participate in such plan(s), the Company may, in its sole\ndiscretion, decide to deliver any documents related to Consultant’s participation in the Company’s equity incentive plan(s)\nby electronic means or to request Consultant’s consent to participate in such plan(s) by electronic means. Consultant\nhereby consents to receive such documents by electronic delivery and agrees, if applicableto participate in such plan(s)\nthrough an on-line or electronic system established and maintained by the Company or a third party designated by the\nCompany.\n13.\nMiscellaneous.\n(a)\nGoverning Law. The validity, interpretation, construction and performance of this\nAgreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be\ngoverned, construed and interpreted in accordance with the laws of the state of Nevada, without giving effect to principles\nof conflicts of law. Consultant acknowledges that he may not have the rights and privileges under applicable Nevada law\nthat he might otherwise have under the applicable laws of the United Kingdom with respect to this Agreement which he\nhereby knowingly and willingly waives.\n(b)\nEntire Agreement. Except as described in Section 3, this Agreement sets forth the entire\nagreement and understanding between the Company and Consultant relating to its subject matter and merges all prior\ndiscussions between the parties to this Agreement. No amendment to this Agreement will be effective unless in writing\nsigned by both parties to this Agreement. The Company shall not be deemed hereby to have waived any rights or\nremedies it may have in law or equity, nor to have given any authorizations or waived any of its rights under this\nAgreement, unless, and only to the extent, it does so by a specific writing signed by a duly authorized officer of the\nCompany. Any subsequent change or changes in Consultant’s duties, obligations, rights or compensation will not affect\nthe validity or scope of this Agreement.\n(c)\nSuccessors and Assigns. This Agreement will be binding upon Consultant’s successors\nand assigns, and will be for the benefit of the Company, its successors, and its assigns.\n(d)\nNotices. Any notice, demand or request required or permitted to be given under this\nAgreement shall be in writing and shall be deemed sufficient when delivered personally or by overnight courier or sent by\nemail, or 48 hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to\nthe party to be notified at such party’s address as set forth on the signature page, as subsequently modified by written\nnotice, or if no address is specified on the signature page, at the most recent address set forth in the Company’s books\nand records.\n-12-\n(e)\nSeverability. If one or more of the provisions in this Agreement are deemed void or\nunenforceable to any extent in any context, such provisions shall nevertheless be enforced to the fullest extent allowed\nby law in that and other contexts, and the validity and force of the remainder of this Agreement shall not be affected. The\nCompany and Consultant have attempted to limit Consultant’s right to use, maintain and disclose the Company’s\nConfidential Information, and to limit Consultant’s right to solicit employees and customers only to the extent necessary to\nprotect the Company from unfair competition. Should a court of competent jurisdiction determine that the scope of the\ncovenants contained in Section 9 and 11 exceeds the maximum restrictiveness such court deems reasonable and\nenforceable, the parties intend that the court should reform, modify and enforce the provision to such narrower scope as\nit determines to be reasonable and enforceable under the circumstances existing at that time. In the event that any court\nor government agency of competent jurisdiction determines that, notwithstanding the terms of the Consulting Agreement\nspecifying Consultant’s Relationship with the Company as that of an independent contractor, Consultant’s provision of\nservices to the Company is not as an independent contractor but instead as an employee under the applicable laws, then\nsolely to the extent that such determination is applicable, references in this Agreement to the Relationship between\nConsultant and the Company shall be interpreted to include an employment relationship, and this Agreement shall not be\ninvalid and unenforceable but shall be read to the fullest extent as may be valid and enforceable under the applicable\nlaws to carry out the intent and purpose of this Agreement.\n(f)\nRemedies. Consultant acknowledges that violation of this Agreement by Consultant may\ncause the Company irreparable harm, and therefore Consultant agrees that the Company will be entitled to seek\nextraordinary relief in court, including, but not limited to, temporary restraining orders, preliminary injunctions and\npermanent injunctions without the necessity of posting a bond or other security (or, where such a bond or security is\nrequired, that a $1,000 bond will be adequate), in addition to and without prejudice to any other rights or remedies that\nthe Company may have for a breach of this Agreement.\n(g)\nAdvice of Counsel. Consultant acknowledges THAT, IN EXECUTING THIS AGREEMENT,\nConsultant Has HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND\nConsultant Has read and understands ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS\nAGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR\nPREPARATION HEREOF.\n(h)\nCounterparts. This Agreement may be executed in any number of counterparts, each of\nwhich when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the\nsame agreement. Execution of a facsimile or scanned copy will have the same force and effect as execution of an\noriginal, and a facsimile or scanned signature will be deemed an original and valid signature.\n-13-\n(i)\nEffective Date. Regardless of the date on which this Agreement is executed by the parties\nhereto, the effective date of this Agreement is June 1, 2019.\n[Signature Page Follows]\n-1 4-\nSIGNATURES\nThe parties have executed this Confidential Information and Invention Assignment Agreement on the respective dates set\nforth below, to be effective as of the Effective Date first above written.\nthe company:\nrenovacare, Inc.\nBy: /s/ Harmel S. Rayat_________________________\n(Signature)\nName: Harmel S. Rayat\nTitle: Chief Executive Officer\nAddress:\nRenovaCare, Inc.\n9375 East Shea Blvd.,\nSuite 107-A\nScottsdale, AZ 85260\nAttention: Harmel S. Rayat\nFacsimile: 604-336-8609\nEmail Address: hsr@renovacareinc.com\nCONSULTANT:\nRoger Esteban-Vives\n(Print Name)\n/s/ Roger Esteban-Vives__________________________\n(Signature)\nAddress:\nRoger Esteban_Viives\nFlat 1, 3 Recovery St.\nLondon, SW170DL, United Kingdom\nEmail: ________________________\nFacsimile: ______________________\n-15-
+f9a70620141ea93cd0a89da34931e806.pdf	effective_date jurisdiction party term	EX-10.19 2 g12049exv10w19.htm EX-10.19 EMPLOYMENT AGREEMENT & CONFIDENTIALITY\nAGREEMENT/ NEIL UNDERWROOD\nExhibit 10.19\nEMPLOYMENT AGREEMENT\nThis EMPLOYMENT AGREEMENT (“Agreement”) is entered into as of this 1st day of December 2006 (the “Effective Date”), by and\nbetween S1 Corporation, a Delaware corporation (the “Company”), and Neil Underwood, individual (the “Employee”).\nWHEREAS, the Company and the Employee desire to enter into this Employment Agreement to set out the terms and conditions for the\nemployment relationship of the Employee with the Company from and after the Effective Date; and\nWHEREAS, the board of directors of the Company (the “Board”) has approved and authorized the Company’s execution, delivery and\nperformance of this Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and other good and valuable consideration,\nthe receipt and sufficiency of which hereby are acknowledged, the parties hereto agree as follows:\n1. Employment Agreement. On the terms and conditions set forth in this Agreement, the Company agrees to employ the Employee and the\nEmployee agrees to be employed by the Company for the Employment Period set forth in Section 2 hereof and in the position and with the duties\nset forth in Section 3 hereof. Terms used herein with initial capitalization not otherwise defined are defined in Section 20 below.\n2. Term. The initial term of employment under this Agreement shall be for a three-year period commencing on the Effective Date (the\n“Initial Term”). The term of employment shall be automatically renewed for an additional consecutive 12-month period (the “Extended Term”)\nas of the first and every subsequent anniversary of the Effective Date, unless and until either party provides written notice to the other party in\naccordance with Section 10 hereof not less than 90 days before such anniversary date that such party is terminating the term of employment\nunder this Agreement (“Non-Renewal”), which termination shall be effective as of the end of such Initial Term or Extended Term, as the case\nmay be, or until such term of employment is otherwise sooner terminated as hereinafter set forth. Such Initial Term and all such Extended Terms\nare collectively referred to herein as the “Employment Period.” A notice of Non-Renewal given by either party to this Agreement shall not be\ndeemed a termination of the Employee’s employment for purposes of Section 9 of this Agreement unless otherwise expressly provided in such\nnotice of Non-Renewal. The Company’s obligations under Section 9 hereof shall survive the expiration or termination of the Employment\nPeriod.\n3. Position and Duties. The Employee shall initially serve as the General Manager/Vice President of the Company. The Employee\nacknowledges that the Company may, at its sole discretion, change the Employee’s title, job duties and responsibilities and reporting as the\nCompany sees fit in its sole discretion. In any role in which the Employee is employed with the Company, the Employee shall render executive,\npolicy and other management services to the Company of the type customarily performed by persons serving in such capacity. The Employee\nshall initially report to the President of the Enterprise Business Unit of the Company unless otherwise determined by the Company. The\nEmployee shall also perform such other duties with the Company and with any Subsidiary as the CEO of the Company or the Board may from\ntime to time reasonably determine and assign to the Employee. The Employee shall devote the Employee’s reasonable best efforts and\nsubstantially full business time to the performance of the Employee’s duties and the advancement of the business and affairs of the Company.\nThe Employee agrees that during the Employment Period he or she will not be entitled to additional compensation for serving as a member of the\nboard of directors of the Company or any Subsidiary if he or she is elected to serve thereon.\n4. Place of Performance. In connection with the Employee’s employment by the Company, the Employee shall be based at the offices of\nthe Company in Atlanta, Georgia, except as otherwise agreed by the Employee and the Company and except for reasonable travel on Company\nbusiness.\n5. Compensation and Benefits; Stock Options.\n(a) Base Salary. During the Employment Period, the Company shall pay to the Employee an annual base salary (the “Base Salary”) at\nthe rate of $200,000.00 per year. The Base Salary will be reviewed annually and may be increased at the discretion of the Company. The Base\nSalary shall be payable semi-monthly or in such other installments as shall be consistent with the Company’s payroll procedures.\n(b) Annual Bonus. The Employee will be eligible to receive an annual bonus, payable no later than the end of the first fiscal quarter of\neach calendar year during the Employment Period (pro-rated for any period that is less than 12 months) of up to $200,000.00 for such calendar\nyear, based on the attainment of specific Company and individual performance targets as may be assigned by the Company annually.\n(c) Benefits. During the Employment Period, the Employee will be entitled to participate in any fringe benefit welfare benefit plan of\nthe Company (on the same terms as provided to other employees of the Company), including any plan providing for employee stock purchases,\npension or retirement income, retirement savings, employee stock ownership, deferred compensation or medical, prescription, dental, disability,\nemployee life, group life, accidental death or travel accident insurance benefits that the Company may adopt for the benefit of employees, in\naccordance with the terms of such plan. Nothing in this Agreement shall restrict the right of the Company to change insurance carriers and to\nadopt, amend, terminate or modify employee benefit plans and arrangements at any time and without the consent of the Employee.\n(d) Stock Options. The Company may grant options to purchase the stock of the Company to the Employee in accordance with the\nterms of the Company’s stock option plans.\n(e) Vacation; Holidays. The Employee shall be entitled to all public holidays observed by the Company and to annual vacation for such\nnumber of days as may be determined by the Company, and otherwise in accordance with the applicable vacation policies for senior executives\nof the Company, which shall be taken at a reasonable time or times.\n(f) Withholding Taxes and Other Deductions. To the extent required by law, the Company shall withhold from any payments due\nEmployee under this Agreement any applicable federal, state or local taxes and such other deductions as are prescribed by law or Company\npolicy or are otherwise authorized by the Employee.\n6. Expenses. The Employee is expected and is authorized to incur reasonable expenses in the performance of his duties hereunder. The\nCompany shall reimburse the Employee for all such expenses in accordance with the Company’s expense reimbursement policy, upon periodic\npresentation by the Employee of an itemized account, including reasonable substantiation, of such expenses.\n7. Confidentiality, Non-Disclosure and Non-Competition Agreement.\nConcurrently with the execution of this Agreement, the parties are entering into an Employee Covenants Agreement (the “Related\nAgreement”).\n8. Termination of Employment.\n(a) Permitted Terminations. The Employee’s employment hereunder may be terminated during the Employment Period under the\nfollowing circumstances:\ni. Death. The Employee’s employment hereunder shall terminate upon the Employee’s death;\nii. By the Company. The Company may terminate the Employee’s employment:\na.\nIf the Employee shall have been substantially unable to perform the Employee’s material duties hereunder by reason of illness,\nphysical or mental disability or other similar incapacity, which inability shall continue for three consecutive\nmonths (provided, that until such termination, the Employee shall continue to receive his compensation and benefits hereunder,\nreduced by any benefits payable to him or her under any disability insurance policy or plan applicable to him or her); or\nb. For Cause;\niii. By the Employee. The Employee may terminate his employment for any reason or for no reason.\n(b) Termination. Any termination of the Employee’s employment by the Company or the Employee (other than because of the\nEmployee’s death) shall be communicated by written Notice of Termination to the other party hereto in accordance with Section 10 hereof. For\npurposes of this Agreement, a “Notice of Termination” shall mean a notice which shall indicate the specific termination provision in this\nAgreement relied upon, if any, and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of\nthe Employee’s employment under the provision so indicated. Termination of the Employee’s employment shall take effect on the Date of\nTermination.\n9. Compensation Upon Termination or Change in Control.\n(a) Death. If the Employee’s employment is terminated during the Employment Period as a result of the Employee’s death, the\nCompany shall pay to the Employee’s estate, or as may be directed by the legal representatives of such estate, the Employee’s Base Salary due\nthrough the Date of Termination, a pro rata portion of the annual bonus that would have been payable for the calendar year of termination if the\nEmployee’s employment had not terminated (calculated based upon actual results through the Date of Termination and based upon budget for the\nremainder of the period and pro rated for the portion of the year during which the Employee was employed) and all other unpaid amounts, if any,\nto which the Employee is entitled as of the Date of Termination, at the time such payments are due, and the Company shall have no further\nobligation to the Employee under this Agreement.\n(b) Disability. If the Company terminates the Employee’s employment during the Employment Period because of the Employee’s\ndisability pursuant to Section 8(a)(ii)(A) hereof, the Company shall pay the Employee the Employee’s Base Salary due through the Date of\nTermination, a pro rata portion of the annual bonus that would have been payable for the calendar year of termination if the Employee’s\nemployment had not terminated (calculated based upon actual results through the Date of Termination and based upon budget for the remainder\nof the period and pro rated for the portion of the year during which the Employee was employed) and all other unpaid amounts, if any, to which\nthe Employee is entitled as of the Date of Termination, at the time such payments are due, and the Company shall have no further obligations to\nthe Employee under this Agreement; provided, that payments so made to the Employee with respect to any period that the Employee is\nsubstantially unable to perform the Employee’s material duties hereunder by reason of illness, physical or mental illness or other similar\nincapacity shall be reduced by the sum of the amounts, if any, payable to the Employee by reason of such disability, at or prior to the time of any\nsuch payment, under any disability insurance policy or benefit plan and which amounts have not previously been applied to reduce any such\npayment.\n(c) Termination by the Company for Cause or by the Employee without Good Reason. If, during the Employment Period, the Company\nterminates the Employee’s employment for Cause pursuant to Section 8(a)(ii)(B) hereof or the Employee terminates his employment without\nGood Reason, the Company shall pay the Employee the Employee’s Base Salary due through the Date of Termination, and all other unpaid\namounts, if any, to which the Employee is entitled as of the Date of Termination, at the time such payments are due, and the Company shall have\nno further obligations to the Employee under this Agreement. In the event that the Company intends to terminate the Employee for Cause, the\nEmployee shall have a reasonable opportunity, together with his counsel, to be heard before the Board of Directors of the Company before such\ntermination.\n(d) Termination by the Company without Cause or by the Employee with Good Reason. Subject to Section 9(e) below, if the Company\nterminates the Employee’s employment during the Employment Period other than for Cause, disability or death pursuant to Section 8(a)(i) or\n(ii) hereof or the Employee terminates employment hereunder with Good Reason, the Company shall (i) pay the Employee the\nEmployee’s Base Salary due through the Date of Termination, a pro rata portion of the annual bonus that would have been payable for the\ncalendar year of termination if the Employee’s employment had not terminated (calculated based upon actual results through the Date of\nTermination and based upon budget for the remainder of the period and pro rated for the portion of the year during which the Employee was\nemployed) and all other unpaid amounts, if any, to which the Employee is entitled as of the Date of Termination, at the time such payments are\ndue, (ii) pay, during the 12-month period commencing on the Date of Termination (the “Severance Period”), to the Employee an aggregate\namount equal to Employee’s Base Salary, payable in equal installments on the Company’s regular salary payment dates, (iii) shall continue in\neffect during the Severance Period the employee benefits provided to the Employee under Section 5(c) hereof immediately before the Date of\nTermination (except to that, to the extent such benefits are provided pursuant to a qualified plan under Section 401(a) of the Code, the Company\nshall provide a substantially equivalent nonqualified benefit) and (iv) if such termination occurs within two years after a Change in Control (or\nbefore a Change in Control has occurred, but after the Company has commenced negotiations of a transaction that results in a Change in\nControl), shall cause all of the outstanding options then held by the Employee to purchase stock of the Company to be fully vested and\nexercisable; provided, notwithstanding anything herein to the contrary, the provision for acceleration of options described in this paragraph will\nnot apply to any options, restricted stock, SAR or other awards approved by the S1 Board of Directors and/or granted to Employee on or about\nNovember 1, 2006; provided further, that no notice of Non-Renewal shall be deemed to be a termination of the Employee’s employment for such\npurposes unless otherwise expressly provided in such notice of Non-Renewal. As a condition precedent to the receipt of the foregoing payments\nand benefits, if requested by the Company, the Employee shall enter into an agreement with the Company confirming the Company’s right to\ncontinued performance by the Employee of the Employee’s obligations under the Related Agreement during the period following termination of\nthe Employee’s employment.\n(e) Limitation on Parachute Payments. Notwithstanding any other provision of this Agreement or of any other agreement, contract, or\nunderstanding heretofore or hereafter entered into by the Employee with the Company or any subsidiary or affiliate, except an agreement,\ncontract, or understanding hereafter entered into that expressly modifies or excludes application of this paragraph (an “Other Agreement”), and\nnotwithstanding any formal or informal plan or other arrangement for the direct or indirect provision of compensation to the Employee\n(including groups or classes of participants or beneficiaries of which the Employee is a member), whether or not such compensation is deferred,\nis in cash, or is in the form of a benefit to or for the Employee (a “Benefit Arrangement”), if the Employee is a “disqualified individual,” as\ndefined in Section 280G(c) of the Code, no payment or benefit shall be made or provided to the Employee or become vested, exercisable or\npayable, as applicable, (i) to the extent that such payment, right to exercise, vesting, or other benefit, taking into account all other payments,\nrights, or benefits to or for the Employee, or becoming vested, exercisable or payable, as the case may be, under this Agreement, all Other\nAgreements and all Benefit Arrangements, would cause any such payment, right to exercise, vesting or other benefit to which the Employee is or\nwould be entitled under this Agreement to be considered a “parachute payment” within the meaning of Section 280G(b)(2) of the Code as then in\neffect (a “Parachute Payment”) and (ii) if, as a result of receiving a Parachute Payment, the aggregate after-tax amounts received by the\nEmployee under this Agreement, all Other Agreements, and all Benefit Arrangements would be less than the maximum after-tax amount that\ncould be received by the Employee without causing any such payment, right to exercise, vesting or other benefit to be considered a Parachute\nPayment. In the event that the receipt of any such payment, right to exercise, vesting, or other benefit under this Agreement, in conjunction with\nall other rights, payments, or benefits to or for the Employee under any Other Agreement or any Benefit Arrangement would cause the Employee\nto be considered to have received a Parachute Payment under this Agreement that would have the effect of decreasing the after-tax amount\nreceived by the Employee as described in clause (ii) of the preceding sentence, then the Employee shall have the right, in the Employee’s sole\ndiscretion, to designate those rights, payments or benefits (or the vesting or exercisability thereof) under this Agreement, any Other Agreements\nand any Benefit Arrangements that should be reduced or eliminated so as to avoid having the right, payment or benefit to the Employee (or the\nvesting or exercisability thereof) under this Agreement be deemed to be a Parachute Payment. All determinations required to be made under this\nSection 9(e), including whether and when a reduction in rights, payments or benefits (or the vesting or exercisability thereof) is required and the\namount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made by PricewaterhouseCoopers LLP or\nsuch other certified public accounting firm reasonably acceptable to the Company as may be designated by the Employee in writing (the\n“Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Employee within 15 business days of the\nreceipt of notice from the Employee or the Company. In the event that the Accounting Firm is serving as accountant or auditor for the Company\nor any individual, entity or group effecting a change in the ownership or effective control of the Company (within the meaning of Section 280G\nof the Code), the Employee shall appoint another nationally recognized\naccounting firm that is reasonably acceptable to the Company to make the determinations required hereunder (which accounting firm shall then\nbe referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any\ndetermination by the Accounting Firm shall be binding upon the Company and the Employee.\n(f) Liquidated Damages. The parties acknowledge and agree that damages which will result to the Employee for termination by the\nCompany without Cause or other breach of this Agreement by the Company shall be extremely difficult or impossible to establish or prove, and\nagree that the amounts payable to the Employee under Section 9(d) hereof (the “Severance Payments”) shall constitute liquidated damages for\nany breach of this Agreement by the Company through the Date of Termination. The Employee agrees that, except for such other payments and\nbenefits to which the Employee may be entitled as expressly provided by the terms of this Agreement or any applicable benefit plan, such\nliquidated damages shall be in lieu of all other claims that the Employee may make by reason of termination of his employment or any such\nbreach of this Agreement and that, as a condition to receiving the Severance Payments, the Employee will execute a release of claims in a form\nreasonably satisfactory to the Company.\n10. Notices. All notices, demands, requests, or other communications which may be or are required to be given, served, or sent by any\nparty to any other party pursuant to this Agreement shall be in writing and shall be hand delivered, sent by overnight courier or mailed by first-\nclass, registered or certified mail, return receipt requested, postage prepaid, or transmitted by telegram, telecopy or telex, addressed as follows:\n(i) If to the Company:\nS1 Corporation\n3500 Lenox Road\nSuite 200\nAtlanta, GA 30326\nFax: 404 923 6717\nAttn: Chief Legal Officer\nwith a copy (which shall not constitute notice) to:\nStuart G. Stein\nHogan & Hartson, L.L .P.\n555 13th Street, N.W.\nWashington, D.C. 20004-1190\nFax: 202/637-5910\n(ii) If to the Employee:\nEach party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so\ngiven, served or sent. Each notice, demand, request, or communication which shall be hand delivered, sent, mailed or telecopied in the manner\ndescribed above, or which shall be delivered to a telegraph company, shall be deemed sufficiently given, served, sent, received or delivered for\nall purposes at such time as it is delivered to the addressee (with the return receipt, the delivery receipt, or (with respect to a telecopy) the\nanswerback being deemed conclusive, but not exclusive, evidence of such delivery) or at such time as delivery is refused by the addressee upon\npresentation.\n11. Severability. The invalidity or unenforceability of any one or more provisions of this Agreement shall not affect the validity or\nenforceability of the other provisions of this Agreement, which shall remain in full force and effect.\n12. Survival. It is the express intention and agreement of the parties hereto that the provisions of Sections 9, 10, 11, 13, 17 and 20 hereof\nand this Section 12 shall survive the termination of employment of the Employee. In addition, all obligations of the Company to make payments\nhereunder shall survive any termination of this Agreement on the terms and conditions set forth herein.\n13. Assignment. The rights and obligations of the parties to this Agreement shall not be assignable or delegable, except that (i) in the event\nof the Employee’s death, the personal representative or legatees or distributees of the Employee’s estate, as the case may be, shall have the right\nto receive any amount owing and unpaid to the Employee hereunder and (ii) the rights and obligations of the Company hereunder shall be\nassignable and delegable in connection with any subsequent merger, consolidation, sale of all or substantially all of the assets or stock of the\nCompany or similar transaction involving the Company or a successor corporation. The Company shall require any successor to the Company to\nexpressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to\nperform it if no such succession had taken place.\n14. Binding Effect. Subject to any provisions hereof restricting assignment, this Agreement shall be binding upon the parties hereto and\nshall inure to the benefit of the parties and their respective heirs, devisees, executors, administrators, legal representatives, successors and\nassigns.\n15. Amendment; Waiver. This Agreement shall not be amended, altered or modified except by an instrument in writing duly executed by\nthe parties hereto. Neither the waiver by either of the parties hereto of a breach of or a default under any of the provisions of this Agreement, nor\nthe failure of either of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or\nprivilege hereunder, shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any such\nprovisions, rights or privileges hereunder.\n16. Headings. Section and subsection headings contained in this Agreement are inserted for convenience of reference only, shall not be\ndeemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the\nprovisions hereof.\n17. Governing Law. This Agreement, the rights and obligations of the parties hereto, and any claims or disputes relating thereto, shall be\ngoverned by and construed in accordance with the laws of the State of Delaware (but not including any choice of law rule thereof that would\ncause the laws of another jurisdiction to apply).\n18. Entire Agreement. This Agreement constitutes the entire agreement between the parties respecting the employment of the Employee,\nthere being no representations, warranties or commitments except as set forth herein.\n19. Counterparts. This Agreement may be executed in two counterparts, each of which shall be an original and all of which shall be\ndeemed to constitute one and the same instrument.\n20. Definitions.\n“Accounting Firm” is defined in Section 9(e) above.\n“Agreement” means this Employment Agreement.\n“Base Salary” is defined in Section 5(a) above.\n“Benefit Arrangement” is defined in Section 9(e) above.\n“Board” means the board of directors of the Company.\n“Cause” means (i) the indictment by a grand jury or conviction of a felony or a crime involving moral turpitude (excluding a traffic\nviolation not involving any period of incarceration) or the willful commission of any other act or omission involving dishonesty or fraud with\nrespect to, and materially adversely\naffecting the business affairs of, the Company or any of its Subsidiaries or any of their customers or suppliers, (ii) conduct tending to bring the\nCompany or any of its Subsidiaries into public disgrace or disrepute that is determined by the Company to cause or be reasonably likely to cause\nsubstantial injury to the business and operations of the Company or such Subsidiary, (iii) substantial and repeated failure to perform duties,\nincluding but not limited to achieving quarterly goals, of the office held by the Employee as reasonably directed by the Company (other than any\nsuch failure resulting from the Employee’s incapacity due to injury or illness), and such failure is not cured within 30 days after the Employee\nreceives written notice thereof from the Company that specifically identifies the manner in which the Company believes the Employee has not\nsubstantially performed his duties, (iv) gross negligence or willful misconduct with respect to the Company or any of its Subsidiaries that causes\nsubstantial and material injury to the business and operations of the Company or such Subsidiary or (v) any material breach of the Related\nAgreement. For purposes of this provision, no act or failure to act, on the part of the Employee, shall be considered “willful” unless it is done, or\nomitted to be done, by the Employee in bad faith or without reasonable belief that the Employee’s action or omission was in the best interests of\nthe Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or based upon advice of\ncounsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Employee in good faith and in the best\ninterests of the Company.\n“Change in Control” means the earliest to occur of the following: (i) any person (other than a corporation (a “Holding Company”) all of\nthe common stock of which is owned, immediately after the transaction, by persons who owned more than 50 percent of the voting shares of the\nCompany immediately before the transaction) becomes the beneficial owner of 50 percent or more of the total number of voting shares of the\nCompany; (ii) any person (other than the persons named as proxies solicited on behalf of the Board) holds revocable or irrevocable proxies, as to\nthe election or removal of two or more directors of the Company, for more than 50 percent of the total number of voting shares of the Company;\n(iii) any person (other than a Holding Company) has commenced a tender or exchange offer, or entered into an agreement or received an option,\nto acquire beneficial ownership of more than 50 percent of the total number of voting shares of the Company; (iv) there is a sale or other transfer\nof all or substantially all of the assets of the Company other than to a Holding Company or a corporation controlled by the Company or (v) as the\nresult of, or in connection with, any cash tender or exchange offer, merger, or other business combination, sale of assets or contested election, or\nany combination of the foregoing transactions, the persons who were directors of the Company before such transaction shall cease to constitute at\nleast a majority of the Board or any successor corporation. In the event that the Company (or any successor entity) becomes a subsidiary of a\nHolding Company, references to the Company in the preceding sentence shall be deemed to be references to the Holding Company.\nNotwithstanding the foregoing, a “Change in Control” will not be deemed to have occurred under clauses (ii) or (iii) above if within 30 days of\nsuch action, the Board (by a two-thirds affirmative vote of the directors in office before such action occurred) makes a determination that such\naction does not and is not likely to constitute a change in control of the Company. For purposes of this definition, a “person” includes an\nindividual, corporation, partnership, trust, association, joint venture, pool, syndicate, unincorporated organization, joint-stock company, or similar\norganization or group acting in concert. A person for these purposes shall be deemed to be a beneficial owner as that term is used in Rule 13d-3\nunder the Securities Exchange Act of 1934, as amended.\n“Code” means the Internal Revenue Code of 1986, as amended.\n“Company” means S1 Corporation and its successors and assigns.\n“Date of Termination” means (i) if the Employee’s employment is terminated by the Employee’s death, the date of the Employee’s\ndeath; (ii) if the Employee’s employment is terminated because of the Employee’s disability pursuant to Section 8(a)(ii)(A) hereof, 30 days after\nNotice of Termination, provided that the Employee shall not have returned to the performance of the Employee’s duties on a full-time basis\nduring such 30-day period; (iii) if the Employee’s employment is terminated by the Company for Cause pursuant to Section 8(a)(ii)(B) hereof or\nby the Employee pursuant to Section 8(a)(iii) hereof, the date specified in the Notice of Termination; or (iv) if the Employee’s employment is\nterminated during the Employment Period other than pursuant to Section 8(a), the date on which Notice of Termination is given.\n“Effective Date” means December 1, 2006.\n“Employment Period” is defined in Section 2 above.\n“Employee” means Neil Underwood\n“Good Reason” means (i) the Company’s failure to perform or observe any of the material terms or provisions of this Agreement, and\nthe continued failure of the Company to cure such default within 30 days after written demand for performance has been given to the Company\nby the Employee, which demand shall describe specifically the nature of such alleged failure to perform or observe such material terms or\nprovisions; (ii) a change in the Employee’s reporting, duties and/or job title where there is no reduction in the Employee’s Base Salary or Annual\nBonus potential shall not be determined to be Good Reason under this Agreement; (iii) any requirement by the Company without the written\nconsent of the Employee that the Employee relocate to a place more than 50 miles from Atlanta, Georgia to perform his duties hereunder; or\n(iv) the failure of the Company to obtain the assumption of the Company’s obligations under this Agreement by a successor as contemplated by\nSection 13 of this Agreement.\n“Initial Term” is defined in Section 2 above.\n“Non-Renewal” is defined in Section 2 above.\n“Notice of Termination” is defined in Section 8(b) above.\n“Other Agreement” is defined in Section 9(e) above.\n“Parachute Payment” is defined in Section 9(e) above.\n“Related Agreement” is defined in Section 7 above.\n“Severance Period” is defined in Section 9(d) above.\n“Subsidiary” means any corporation of which the Company owns securities having a majority of the ordinary voting power in electing\nthe board of directors directly or through one or more subsidiaries and any partnership, limited liability company or other entity in which the\nCompany or any subsidiary owns a controlling interest.\nIN WITNESS WHEREOF, the undersigned have duly executed and delivered this Agreement, or have caused this Agreement to be duly\nexecuted and delivered on their behalf, as of the Effective Date.\nS1 CORPORATION\nBy: /s/ Johann Dreyer\nPresident and Chief Executive Officer\nTHE EMPLOYEE:\n/s/ Neil Underwood\nCONFIDENTIALITY, NON-DISCLOSURE\nAND NON-SOLICITATION AGREEMENT\nIn consideration and as a condition of my employment by S1 Corporation, a Delaware corporation (the “Company”, which term shall also\ninclude any subsidiaries and divisions of S1 Corporation), I hereby agree with the Company as follows:\n1. Nondisclosure and Use of Proprietary Information.\n(a) I represent and warrant that: (i) I am not subject to any legal or contractual duty or agreement that would prevent me from performing\nmy duties for the Company or complying with this Agreement, and I am not in breach of any legal or contractual duty or agreement, including\nany agreement concerning trade secrets or confidential information owned by any other party.\n(b) I will not: use, disclose, or reverse engineer the Trade Secrets or the Confidential Information, except as authorized in writing by the\nCompany; (ii) during my employment with the Company, use, disclose, or reverse engineer (A) any confidential information or trade secrets of\nany former employer or third party, or (B) any works of authorship developed in whole or in part by me during any former employment or for\nany other party, unless authorized in writing by the former employer or third party; or (iii) upon my resignation or termination, (A) retain Trade\nSecrets or Confidential Information, including any copies existing in any form (including electronic form) which are in my possession or control,\nor (B) destroy, delete, or alter the Trade Secrets or Confidential Information without the Company’s written consent.\n(c) The obligations under this Agreement shall (i) with regard to the Trade Secrets, remain in effect as long as the information constitutes a\ntrade secret under applicable law; and (ii) with regard to the Confidential Information, remain in effect during the Restricted Period.\n(d) The confidentiality, property, and proprietary rights protections available in this Agreement are in addition to, and not exclusive of, any\nand all other rights to which the Company is entitled under federal and state law, including, but not limited to, rights provided under copyright\nlaws, trade secret and confidential information laws, and laws concerning fiduciary duties.\n(e) For purposes of this Agreement, the following definitions shall apply:\n(i) “Confidential Information” means (a) information of the Company, to the extent not considered a Trade Secret under applicable law,\nthat (i) relates to the business of the Company, (ii) possesses an element of value to the Company, (iii) is not generally known to the Company’s\ncompetitors, and (iv) would damage the Company if disclosed, and (b) information of any third party provided to the Company which the\nCompany is obligated to treat as confidential. Confidential Information includes, but is not limited to, (i) future business plans, (ii) the\ncomposition, description, schematic or design of products, future products or equipment of the Company, (iii) communication systems, audio\nsystems, system designs and related documentation, (iv) advertising or marketing plans, (v) information regarding independent contractors,\nemployees, clients and customers of the Company, and (vi) information concerning the Company’s financial structure and methods and\nprocedures of operation. Confidential Information shall not include any information that (a) is or becomes generally available to the public other\nthan as a result of an unauthorized disclosure, (b) has been independently developed and disclosed by others without violating this Agreement or\nthe legal rights of any party, or (c) otherwise enters the public domain through lawful means.\n(ii) “Restricted Period” means the time period during my employment with the Company, and for one (1) year after my employment\nwith the Company ends.\n(iii) “Trade Secrets” means information of the Company, and its licensors, suppliers, clients and customers, without regard to form,\nincluding, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a\ndrawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which is not commonly\nknown\nby or available to the public and which information (i) derives economic value, actual or potential, from not being generally known to, and not\nbeing readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of\nefforts that are reasonable under the circumstances to maintain its secrecy.\n2. Assignment of Developments.\n(a) I understand that my employment duties may include inventing in areas directly or indirectly related to the business of the Company or\nto a line of business that the Company may reasonably be interested in pursuing. All Work Product shall constitute work made for hire. If (i) any\nof the Work Product may not be considered work made for hire, or (ii) ownership of all right, title, and interest in and to the Work Product will\nnot vest exclusively in the Company, then, without further consideration, I assign all presently-existing Work Product to the Company, and agree\nto assign, and automatically assign, all future Work Product to the Company.\n(b) The Company will have the right to obtain and hold in its own name copyrights, patents, design registrations and continuations thereof,\nproprietary database rights, trademarks, rights of publicity, and any other protection available in the Work Product. At the Company’s request, I\nagree to perform, during or after my employment with the Company, any acts to transfer, perfect and defend the Company’s ownership of the\nWork Product, including, but not limited to: (i) executing all documents (including a formal assignment to the Company) for filing an application\nor registration for protection of the Work Product (an “Application”), (ii) explaining the nature of the Work Product to persons designated by the\nCompany, (iii) reviewing Applications and other related papers, or (iv) providing any other assistance reasonably required for the orderly\nprosecution of Applications. I agree to provide the Company with a written description of any Work Product in which I am involved (solely or\njointly with others) and the circumstances surrounding the creation of such Work Product.\n(c) During my employment and after my employment with the Company ends, I grant to the Company an irrevocable, nonexclusive,\nworldwide, royalty-free license to: (i) make, use, sell, copy, perform, display, distribute, or otherwise utilize copies of the Licensed Materials,\n(ii) prepare, use and distribute derivative works based upon the Licensed Materials, and (iii) authorize others to do the same. I will notify the\nCompany in writing of any Licensed Materials I deliver to the Company.\n(d) For purposes of this Agreement, the following definitions shall apply:\n(i) “Licensed Materials” means any materials that I utilize for the benefit of the Company, or deliver to the Company or the Company’s\ncustomers, which (i) do not constitute Work Product, (ii) are created by me or of which I am otherwise in lawful possession, and (iii) I may\nlawfully utilize for the benefit of, or distribute to, the Company or the Company’s customers.\n(ii) “Work Product” means (a) any data, databases, materials, documentation, computer programs, inventions (whether or not\npatentable), designs, and/or works of authorship, including but not limited to, discoveries, ideas, concepts, properties, formulas, compositions,\nmethods, programs, procedures, systems, techniques, products, improvements, innovations, writings, pictures, audio, video, images of me, and\nartistic works, and (b) any subject matter protected under patent, copyright, proprietary database, trademark, trade secret, rights of publicity,\nconfidential information, or other property rights, including all worldwide rights therein, that is or was conceived, created or developed in whole\nor in part by me while employed by the Company and that either (i) is created within the scope of my employment, (ii) is based on, results from,\nor is suggested by any work performed within the scope of my employment and is directly or indirectly related to the business of the Company or\na line of business that the Company may reasonably be interested in pursuing, (iii) has been or will be paid for by the Company, or (iv) was\ncreated or improved in whole or in part by using the Company’s time, resources, data, facilities, or equipment.\n3. Non-Solicitation.\n(a) During the Restricted Period, I will not, directly or indirectly, solicit, recruit or induce any Employee to (i) terminate his employment\nrelationship with the Company, or (ii) work for any other person or entity engaged in the Business.\n(b) During the Restricted Period, I will not directly or indirectly solicit any Customer of the Company for the purpose of providing any\ngoods or services competitive with the Business. The restrictions set forth in this Section apply only to Customers with whom I had Contact.\n(c) For purposes of this Agreement, the following definitions shall apply:\n(i) “Business” shall mean the business of developing, designing, and implementing computer applications that allow banks, brokerage\nfirms, and insurance companies to enable their customers to access financial information and conduct transactions over multiple delivery\nchannels.\n(ii) “Contact” means any interaction between a Customer and me which (i) takes place in an effort to establish, maintain, and/or further\na business relationship on behalf of the Company and (ii) occurs during the last year of my employment with the Company (or during my\nemployment if employed less than a year).\n(iii) “Customer” means any person or entity to whom the Company has sold its products or services, or solicited to sell its products or\nservices.\n(iv) “Employee” means any person who (i) is employed by the Company at the time my employment with the Company ends, (ii) was\nemployed by the Company during the last year of my employment with the Company (or during my employment if employed less than a year),\nor (iii) is employed by the Company during the Restricted Period.\n4. Equitable Relief.\nIf I breach this Agreement, I agree that: (a) the Company would suffer irreparable harm; (b) it would be difficult to determine damages,\nand money damages alone would be an inadequate remedy for the injuries suffered by the Company; and (c) if the Company seeks injunctive\nrelief to enforce this Agreement, I will waive and will not (i) assert any defense that the Company has an adequate remedy at law with respect to\nthe breach, (ii) require that the Company submit proof of the economic value of any Trade Secret or Confidential Information, or (iii) require the\nCompany to post a bond or any other security. Nothing contained in this Agreement shall limit the Company’s right to any other remedies at law\nor in equity.\n5. No Right to Continued Employment.\nI understand that this Agreement does not create a contract of employment or a contract for benefits. Except as set forth in a separate\nagreement duly authorized and executed by the Company, my employment relationship with the Company is at-will. This means that at either my\noption or the Company’s option, my employment may be terminated at any time, with or without cause or notice.\n6. Attorneys’ Fees\nIn the event of litigation relating to this Agreement, the Company shall, if it is the prevailing party, be entitled to recover attorneys’ fees\nand costs of litigation in addition to all other remedies available at law or in equity.\n7. Waivers.\nAny waiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any\nsubsequent breach of such provision or any other provision hereof.\n8. Acknowledgment; Severability.\nI acknowledge that the restrictions contained in this Agreement are reasonable and necessary to protect the legitimate business interests of\nthe Company, and will not impair or infringe upon my right to work or earn a living in the event my employment with the Company ends. The\nprovisions of this Agreement are severable. If any provision is determined to be invalid, illegal, or unenforceable, in whole or in part, the\nremaining provisions and any partially enforceable provisions shall remain in full force and effect.\n9. Survival of Obligations.\nI understand that I shall not have the right to assign my rights or obligations under this Agreement. My obligations under this Agreement\nshall survive the termination of my employment regardless of the manner of, or reason for, such termination.\n10. Assignment.\nThis Agreement shall be assignable to, and shall inure to the benefit of, the Company’s successors and assigns, including, without\nlimitation, successors through merger, name change, consolidation, or sale of a majority of the Company’s stock or assets, and shall be binding\nupon me.\n11. Governing Law.\nThe laws of the State of Delaware shall govern this Agreement. If Delaware’s conflict of law rules would apply another state’s laws, the\nCompany and I agree that Delaware law shall still govern.\n12. Entire Agreement.\nThis Agreement constitutes the entire agreement between the Company and me concerning the subject matter of this Agreement. This\nAgreement supersedes any prior communications, agreements or understandings, whether oral or written, between the Company and me relating\nto the subject matter of this Agreement.\n13. Consent to Jurisdiction.\nI agree that any claim arising out of or relating to this Agreement shall be brought in a state or federal court of competent jurisdiction in\nAtlanta, Georgia. I consent to the personal jurisdiction of the state and/or federal courts located in Georgia. I waive (a) any objection to\njurisdiction or venue, or (b) any defense claiming lack of jurisdiction or improper venue, in any action brought in such courts.\nIN WITNESS WHEREOF, the undersigned has executed this Confidentiality, Non-Disclosure and Non-Solicitation Agreement as of the\n1st day of December, 2006.\n/s/ Neil Underwood\nSignature\nName: Neil Underwood\nAddress\nAgreed to and Accepted:\nS1 CORPORATION\nBy: /s/ Johann Dreyer\nPresident and Chief Executive Officer	EX-10.19 2 g12049exv10w19.htm EX-10.19 EMPLOYMENT AGREEMENT & CONFIDENTIALITY\nAGREEMENT/ NEIL UNDERWROOQOD\nExhibit 10.19\nEMPLOYMENT AGREEMENT\nThis EMPLOYMENT AGREEMENT (“Agreement”) is entered into as of this 1st day of December 2006 (the “Effective Date”), by and\nbetween S1 Corporation, a Delaware corporation (the “Company”), and Neil Underwood, individual (the “Employee”).\nWHEREAS, the Company and the Employee desire to enter into this Employment Agreement to set out the terms and conditions for the\nemployment relationship of the Employee with the Company from and after the Effective Date; and\nWHEREAS, the board of directors of the Company (the “Board”) has approved and authorized the Company’s execution, delivery and\nperformance of this Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and other good and valuable consideration,\nthe receipt and sufficiency of which hereby are acknowledged, the parties hereto agree as follows:\n1. Employment Agreement. On the terms and conditions set forth in this Agreement, the Company agrees to employ the Employee and the\nEmployee agrees to be employed by the Company for the Employment Period set forth in Section 2 hereof and in the position and with the duties\nset forth in Section 3 hereof. Terms used herein with initial capitalization not otherwise defined are defined in Section 20 below.\n2. Term. The initial term of employment under this Agreement shall be for a three-year period commencing on the Effective Date (the\n“Initial Term”). The term of employment shall be automatically renewed for an additional consecutive 12-month period (the “Extended Term”)\nas of the first and every subsequent anniversary of the Effective Date, unless and until either party provides written notice to the other party in\naccordance with Section 10 hereof not less than 90 days before such anniversary date that such party is terminating the term of employment\nunder this Agreement (“Non-Renewal”), which termination shall be effective as of the end of such Initial Term or Extended Term, as the case\nmay be, or until such term of employment is otherwise sooner terminated as hereinafter set forth. Such Initial Term and all such Extended Terms\nare collectively referred to herein as the “Employment Period.” A notice of Non-Renewal given by either party to this Agreement shall not be\ndeemed a termination of the Employee’s employment for purposes of Section 9 of this Agreement unless otherwise expressly provided in such\nnotice of Non-Renewal. The Company’s obligations under Section 9 hereof shall survive the expiration or termination of the Employment\nPeriod.\n3. Position and Duties. The Employee shall initially serve as the General Manager/Vice President of the Company. The Employee\nacknowledges that the Company may, at its sole discretion, change the Employee’s title, job duties and responsibilities and reporting as the\nCompany sees fit in its sole discretion. In any role in which the Employee is employed with the Company, the Employee shall render executive,\npolicy and other management services to the Company of the type customarily performed by persons serving in such capacity. The Employee\nshall initially report to the President of the Enterprise Business Unit of the Company unless otherwise determined by the Company. The\nEmployee shall also perform such other duties with the Company and with any Subsidiary as the CEO of the Company or the Board may from\ntime to time reasonably determine and assign to the Employee. The Employee shall devote the Employee’s reasonable best efforts and\nsubstantially full business time to the performance of the Employee’s duties and the advancement of the business and affairs of the Company.\nThe Employee agrees that during the Employment Period he or she will not be entitled to additional compensation for serving as a member of the\nboard of directors of the Company or any Subsidiary if he or she is elected to serve thereon.\n4. Place of Performance. In connection with the Employee’s employment by the Company, the Employee shall be based at the offices of\nthe Company in Atlanta, Georgia, except as otherwise agreed by the Employee and the Company and except for reasonable travel on Company\nbusiness.\n5. Compensation and Benefits; Stock Options.\n(a) Base Salary. During the Employment Period, the Company shall pay to the Employee an annual base salary (the “Base Salary”) at\nthe rate of $200,000.00 per year. The Base Salary will be reviewed annually and may be increased at the discretion of the Company. The Base\nSalary shall be payable semi-monthly or in such other installments as shall be consistent with the Company’s payroll procedures.\n(b) Annual Bonus. The Employee will be eligible to receive an annual bonus, payable no later than the end of the first fiscal quarter of\neach calendar year during the Employment Period (pro-rated for any period that is less than 12 months) of up to $200,000.00 for such calendar\nyear, based on the attainment of specific Company and individual performance targets as may be assigned by the Company annually.\n(c) Benefits. During the Employment Period, the Employee will be entitled to participate in any fringe benefit welfare benefit plan of\nthe Company (on the same terms as provided to other employees of the Company), including any plan providing for employee stock purchases,\npension or retirement income, retirement savings, employee stock ownership, deferred compensation or medical, prescription, dental, disability,\nemployee life, group life, accidental death or travel accident insurance benefits that the Company may adopt for the benefit of employees, in\naccordance with the terms of such plan. Nothing in this Agreement shall restrict the right of the Company to change insurance carriers and to\nadopt, amend, terminate or modify employee benefit plans and arrangements at any time and without the consent of the Employee.\n \n(d) Stock Options. The Company may grant options to purchase the stock of the Company to the Employee in accordance with the\nterms of the Company’s stock option plans.\n(e) Vacation; Holidays. The Employee shall be entitled to all public holidays observed by the Company and to annual vacation for such\nnumber of days as may be determined by the Company, and otherwise in accordance with the applicable vacation policies for senior executives\nof the Company, which shall be taken at a reasonable time or times.\n \n(f) Withholding Taxes and Other Deductions. To the extent required by law, the Company shall withhold from any payments due\nEmployee under this Agreement any applicable federal, state or local taxes and such other deductions as are prescribed by law or Company\npolicy or are otherwise authorized by the Employee.\n6. Expenses. The Employee is expected and is authorized to incur reasonable expenses in the performance of his duties hereunder. The\nCompany shall reimburse the Employee for all such expenses in accordance with the Company’s expense reimbursement policy, upon periodic\npresentation by the Employee of an itemized account, including reasonable substantiation, of such expenses.\n7. Confidentiality, Non-Disclosure and Non-Competition Agreement.\nConcurrently with the execution of this Agreement, the parties are entering into an Employee Covenants Agreement (the “Related\nAgreement”).\n8. Termination of Employment.\n(a) Permitted Terminations. The Employee’s employment hereunder may be terminated during the Employment Period under the\nfollowing circumstances:\ni.  Death. The Employee’s employment hereunder shall terminate upon the Employee’s death;\nii. By the Company. The Company may terminate the Employee’s employment:\na.  If the Employee shall have been substantially unable to perform the Employee’s material duties hereunder by reason of illness,\nphysical or mental disability or other similar incapacity, which inability shall continue for three consecutive\nmonths (provided, that until such termination, the Employee shall continue to receive his compensation and benefits hereunder,\nreduced by any benefits payable to him or her under any disability insurance policy or plan applicable to him or her); or\nb.  For Cause;\niii. By the Employee. The Employee may terminate his employment for any reason or for no reason.\n(b) Termination. Any termination of the Employee’s employment by the Company or the Employee (other than because of the\nEmployee’s death) shall be communicated by written Notice of Termination to the other party hereto in accordance with Section 10 hereof. For\npurposes of this Agreement, a “Notice of Termination” shall mean a notice which shall indicate the specific termination provision in this\nAgreement relied upon, if any, and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of\nthe Employee’s employment under the provision so indicated. Termination of the Employee’s employment shall take effect on the Date of\nTermination.\n9. Compensation Upon Termination or Change in Control.\n(a) Death. If the Employee’s employment is terminated during the Employment Period as a result of the Employee’s death, the\nCompany shall pay to the Employee’s estate, or as may be directed by the legal representatives of such estate, the Employee’s Base Salary due\nthrough the Date of Termination, a pro rata portion of the annual bonus that would have been payable for the calendar year of termination if the\nEmployee’s employment had not terminated (calculated based upon actual results through the Date of Termination and based upon budget for the\nremainder of the period and pro rated for the portion of the year during which the Employee was employed) and all other unpaid amounts, if any,\nto which the Employee is entitled as of the Date of Termination, at the time such payments are due, and the Company shall have no further\nobligation to the Employee under this Agreement.\n(b) Disability. If the Company terminates the Employee’s employment during the Employment Period because of the Employee’s\ndisability pursuant to Section 8(a)(ii)(A) hereof, the Company shall pay the Employee the Employee’s Base Salary due through the Date of\nTermination, a pro rata portion of the annual bonus that would have been payable for the calendar year of termination if the Employee’s\nemployment had not terminated (calculated based upon actual results through the Date of Termination and based upon budget for the remainder\nof the period and pro rated for the portion of the year during which the Employee was employed) and all other unpaid amounts, if any, to which\nthe Employee is entitled as of the Date of Termination, at the time such payments are due, and the Company shall have no further obligations to\nthe Employee under this Agreement; provided, that payments so made to the Employee with respect to any period that the Employee is\nsubstantially unable to perform the Employee’s material duties hereunder by reason of illness, physical or mental illness or other similar\nincapacity shall be reduced by the sum of the amounts, if any, payable to the Employee by reason of such disability, at or prior to the time of any\nsuch payment, under any disability insurance policy or benefit plan and which amounts have not previously been applied to reduce any such\npayment.\n \nterminates the Employee’s employment for Cause pursuant to Section 8(a)(ii)(B) hereof or the Employee terminates his employment without\nGood Reason, the Company shall pay the Employee the Employee’s Base Salary due through the Date of Termination, and all other unpaid\namounts, if any, to which the Employee is entitled as of the Date of Termination, at the time such payments are due, and the Company shall have\nno further obligations to the Employee under this Agreement. In the event that the Company intends to terminate the Employee for Cause, the\nEmployee shall have a reasonable opportunity, together with his counsel, to be heard before the Board of Directors of the Company before such\ntermination.\nterminates the Employee’s employment during the Employment Period other than for Cause, disability or death pursuant to Section 8(a)(i) or\n(ii) hereof or the Employee terminates employment hereunder with Good Reason, the Company shall (i) pay the Employee the\nEmployee’s Base Salary due through the Date of Termination, a pro rata portion of the annual bonus that would have been payable for the\ncalendar year of termination if the Employee’s employment had not terminated (calculated based upon actual results through the Date of\nTermination and based upon budget for the remainder of the period and pro rated for the portion of the year during which the Employee was\nemployed) and all other unpaid amounts, if any, to which the Employee is entitled as of the Date of Termination, at the time such payments are\ndue, (ii) pay, during the 12-month period commencing on the Date of Termination (the “Severance Period”), to the Employee an aggregate\namount equal to Employee’s Base Salary, payable in equal installments on the Company’s regular salary payment dates, (iii) shall continue in\neffect during the Severance Period the employee benefits provided to the Employee under Section 5(c) hereof immediately before the Date of\nTermination (except to that, to the extent such benefits are provided pursuant to a qualified plan under Section 401(a) of the Code, the Company\nshall provide a substantially equivalent nonqualified benefit) and (iv) if such termination occurs within two years after a Change in Control (or\nbefore a Change in Control has occurred, but after the Company has commenced negotiations of a transaction that results in a Change in\nControl), shall cause all of the outstanding options then held by the Employee to purchase stock of the Company to be fully vested and\nexercisable; provided, notwithstanding anything herein to the contrary, the provision for acceleration of options described in this paragraph will\nnot apply to any options, restricted stock, SAR or other awards approved by the S1 Board of Directors and/or granted to Employee on or about\nNovember 1, 2006; provided further, that no notice of Non-Renewal shall be deemed to be a termination of the Employee’s employment for such\npurposes unless otherwise expressly provided in such notice of Non-Renewal. As a condition precedent to the receipt of the foregoing payments\nand benefits, if requested by the Company, the Employee shall enter into an agreement with the Company confirming the Company’s right to\ncontinued performance by the Employee of the Employee’s obligations under the Related Agreement during the period following termination of\nthe Employee’s employment.\n(e) Limitation on Parachute Payments. Notwithstanding any other provision of this Agreement or of any other agreement, contract, or\nunderstanding heretofore or hereafter entered into by the Employee with the Company or any subsidiary or affiliate, except an agreement,\ncontract, or understanding hereafter entered into that expressly modifies or excludes application of this paragraph (an “Other Agreement™), and\nnotwithstanding any formal or informal plan or other arrangement for the direct or indirect provision of compensation to the Employee\n(including groups or classes of participants or beneficiaries of which the Employee is a member), whether or not such compensation is deferred,\nis in cash, or is in the form of a benefit to or for the Employee (a “Benefit Arrangement”), if the Employee is a “disqualified individual,” as\ndefined in Section 280G(c) of the Code, no payment or benefit shall be made or provided to the Employee or become vested, exercisable or\npayable, as applicable, (i) to the extent that such payment, right to exercise, vesting, or other benefit, taking into account all other payments,\nrights, or benefits to or for the Employee, or becoming vested, exercisable or payable, as the case may be, under this Agreement, all Other\nAgreements and all Benefit Arrangements, would cause any such payment, right to exercise, vesting or other benefit to which the Employee is or\nwould be entitled under this Agreement to be considered a “parachute payment” within the meaning of Section 280G(b)(2) of the Code as then in\neffect (a “Parachute Payment”) and (ii) if, as a result of receiving a Parachute Payment, the aggregate after-tax amounts received by the\nEmployee under this Agreement, all Other Agreements, and all Benefit Arrangements would be less than the maximum after-tax amount that\ncould be received by the Employee without causing any such payment, right to exercise, vesting or other benefit to be considered a Parachute\nPayment. In the event that the receipt of any such payment, right to exercise, vesting, or other benefit under this Agreement, in conjunction with\nall other rights, payments, or benefits to or for the Employee under any Other Agreement or any Benefit Arrangement would cause the Employee\nto be considered to have received a Parachute Payment under this Agreement that would have the effect of decreasing the after-tax amount\nreceived by the Employee as described in clause (ii) of the preceding sentence, then the Employee shall have the right, in the Employee’s sole\ndiscretion, to designate those rights, payments or benefits (or the vesting or exercisability thereof) under this Agreement, any Other Agreements\nand any Benefit Arrangements that should be reduced or eliminated so as to avoid having the right, payment or benefit to the Employee (or the\nvesting or exercisability thereof) under this Agreement be deemed to be a Parachute Payment. All determinations required to be made under this\nSection 9(e), including whether and when a reduction in rights, payments or benefits (or the vesting or exercisability thereof) is required and the\namount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made by PricewaterhouseCoopers LLP or\nsuch other certified public accounting firm reasonably acceptable to the Company as may be designated by the Employee in writing (the\n“Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Employee within 15 business days of the\nreceipt of notice from the Employee or the Company. In the event that the Accounting Firm is serving as accountant or auditor for the Company\nor any individual, entity or group effecting a change in the ownership or effective control of the Company (within the meaning of Section 280G\nof the Code), the Employee shall appoint another nationally recognized\naccounting firm that is reasonably acceptable to the Company to make the determinations required hereunder (which accounting firm shall then\nbe referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any\ndetermination by the Accounting Firm shall be binding upon the Company and the Employee.\n(f) Liquidated Damages. The parties acknowledge and agree that damages which will result to the Employee for termination by the\nCompany without Cause or other breach of this Agreement by the Company shall be extremely difficult or impossible to establish or prove, and\nagree that the amounts payable to the Employee under Section 9(d) hereof (the “Severance Payments™) shall constitute liquidated damages for\nany breach of this Agreement by the Company through the Date of Termination. The Employee agrees that, except for such other payments and\nbenefits to which the Employee may be entitled as expressly provided by the terms of this Agreement or any applicable benefit plan, such\nliquidated damages shall be in lieu of all other claims that the Employee may make by reason of termination of his employment or any such\nbreach of this Agreement and that, as a condition to receiving the Severance Payments, the Employee will execute a release of claims in a form\nreasonably satisfactory to the Company.\n10. Notices. All notices, demands, requests, or other communications which may be or are required to be given, served, or sent by any\nparty to any other party pursuant to this Agreement shall be in writing and shall be hand delivered, sent by overnight courier or mailed by first-\nclass, registered or certified mail, return receipt requested, postage prepaid, or transmitted by telegram, telecopy or telex, addressed as follows:\n(i) If to the Company:\nS1 Corporation\n3500 Lenox Road\nSuite 200\nAtlanta, GA 30326\nFax: 404 923 6717\nAttn: Chief Legal Officer\nwith a copy (which shall not constitute notice) to:\nStuart G. Stein\nHogan & Hartson, L.L.P.\n555 13th Street, N.W.\nWashington, D.C. 20004-1190\nFax: 202/637-5910\n(ii) If to the Employee:\nEach party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so\ngiven, served or sent. Each notice, demand, request, or communication which shall be hand delivered, sent, mailed or telecopied in the manner\ndescribed above, or which shall be delivered to a telegraph company, shall be deemed sufficiently given, served, sent, received or delivered for\nall purposes at such time as it is delivered to the addressee (with the return receipt, the delivery receipt, or (with respect to a telecopy) the\nanswerback being deemed conclusive, but not exclusive, evidence of such delivery) or at such time as delivery is refused by the addressee upon\npresentation.\n11. Severability. The invalidity or unenforceability of any one or more provisions of this Agreement shall not affect the validity or\nenforceability of the other provisions of this Agreement, which shall remain in full force and effect.\n12. Survival. It is the express intention and agreement of the parties hereto that the provisions of Sections 9, 10, 11, 13, 17 and 20 hereof\nand this Section 12 shall survive the termination of employment of the Employee. In addition, all obligations of the Company to make payments\nhereunder shall survive any termination of this Agreement on the terms and conditions set forth herein.\n13. Assignment. The rights and obligations of the parties to this Agreement shall not be assignable or delegable, except that (i) in the event\nof the Employee’s death, the personal representative or legatees or distributees of the Employee’s estate, as the case may be, shall have the right\nto receive any amount owing and unpaid to the Employee hereunder and (ii) the rights and obligations of the Company hereunder shall be\nassignable and delegable in connection with any subsequent merger, consolidation, sale of all or substantially all of the assets or stock of the\nCompany or similar transaction involving the Company or a successor corporation. The Company shall require any successor to the Company to\nexpressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to\nperform it if no such succession had taken place.\n \n14. Binding Effect. Subject to any provisions hereof restricting assignment, this Agreement shall be binding upon the parties hereto and\nshall inure to the benefit of the parties and their respective heirs, devisees, executors, administrators, legal representatives, successors and\nassigns.\n15. Amendment; Waiver. This Agreement shall not be amended, altered or modified except by an instrument in writing duly executed by\nthe parties hereto. Neither the waiver by either of the parties hereto of a breach of or a default under any of the provisions of this Agreement, nor\nthe failure of either of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or\nprivilege hereunder, shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any such\nprovisions, rights or privileges hereunder.\n16. Headings. Section and subsection headings contained in this Agreement are inserted for convenience of reference only, shall not be\ndeemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the\nprovisions hereof.\n17. Governing Law. This Agreement, the rights and obligations of the parties hereto, and any claims or disputes relating thereto, shall be\ngoverned by and construed in accordance with the laws of the State of Delaware (but not including any choice of law rule thereof that would\ncause the laws of another jurisdiction to apply).\n18. Entire Agreement. This Agreement constitutes the entire agreement between the parties respecting the employment of the Employee,\nthere being no representations, warranties or commitments except as set forth herein.\n19. Counterparts. This Agreement may be executed in two counterparts, each of which shall be an original and all of which shall be\ndeemed to constitute one and the same instrument.\n20. Definitions.\n“Accounting Firm” is defined in Section 9(e) above.\n“Agreement” means this Employment Agreement.\n“Base Salary” is defined in Section 5(a) above.\n“Benefit Arrangement” is defined in Section 9(e) above.\n“Board” means the board of directors of the Company.\n“Cause” means (i) the indictment by a grand jury or conviction of a felony or a crime involving moral turpitude (excluding a traffic\nviolation not involving any period of incarceration) or the willful commission of any other act or omission involving dishonesty or fraud with\nrespect to, and materially adversely\naffecting the business affairs of, the Company or any of its Subsidiaries or any of their customers or suppliers, (ii) conduct tending to bring the\nCompany or any of its Subsidiaries into public disgrace or disrepute that is determined by the Company to cause or be reasonably likely to cause\nsubstantial injury to the business and operations of the Company or such Subsidiary, (iii) substantial and repeated failure to perform duties,\nincluding but not limited to achieving quarterly goals, of the office held by the Employee as reasonably directed by the Company (other than any\nsuch failure resulting from the Employee’s incapacity due to injury or illness), and such failure is not cured within 30 days after the Employee\nreceives written notice thereof from the Company that specifically identifies the manner in which the Company believes the Employee has not\nsubstantially performed his duties, (iv) gross negligence or willful misconduct with respect to the Company or any of its Subsidiaries that causes\nsubstantial and material injury to the business and operations of the Company or such Subsidiary or (v) any material breach of the Related\nAgreement. For purposes of this provision, no act or failure to act, on the part of the Employee, shall be considered “willful” unless it is done, or\nomitted to be done, by the Employee in bad faith or without reasonable belief that the Employee’s action or omission was in the best interests of\nthe Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or based upon advice of\ncounsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Employee in good faith and in the best\ninterests of the Company.\n“Change in Control” means the earliest to occur of the following: (i) any person (other than a corporation (a “Holding Company”) all of\nthe common stock of which is owned, immediately after the transaction, by persons who owned more than 50 percent of the voting shares of the\nCompany immediately before the transaction) becomes the beneficial owner of 50 percent or more of the total number of voting shares of the\nCompany; (ii) any person (other than the persons named as proxies solicited on behalf of the Board) holds revocable or irrevocable proxies, as to\nthe election or removal of two or more directors of the Company, for more than 50 percent of the total number of voting shares of the Company;\n(iii) any person (other than a Holding Company) has commenced a tender or exchange offer, or entered into an agreement or received an option,\nto acquire beneficial ownership of more than 50 percent of the total number of voting shares of the Company; (iv) there is a sale or other transfer\nof all or substantially all of the assets of the Company other than to a Holding Company or a corporation controlled by the Company or (v) as the\nresult of, or in connection with, any cash tender or exchange offer, merger, or other business combination, sale of assets or contested election, or\nany combination of the foregoing transactions, the persons who were directors of the Company before such transaction shall cease to constitute at\nleast a majority of the Board or any successor corporation. In the event that the Company (or any successor entity) becomes a subsidiary of a\nHolding Company, references to the Company in the preceding sentence shall be deemed to be references to the Holding Company.\nNotwithstanding the foregoing, a “Change in Control” will not be deemed to have occurred under clauses (ii) or (iii) above if within 30 days of\nsuch action, the Board (by a two-thirds affirmative vote of the directors in office before such action occurred) makes a determination that such\naction does not and is not likely to constitute a change in control of the Company. For purposes of this definition, a “person” includes an\nindividual, corporation, partnership, trust, association, joint venture, pool, syndicate, unincorporated organization, joint-stock company, or similar\norganization or group acting in concert. A person for these purposes shall be deemed to be a beneficial owner as that term is used in Rule 13d-3\nunder the Securities Exchange Act of 1934, as amended.\n“Code” means the Internal Revenue Code of 1986, as amended.\n“Company” means S1 Corporation and its successors and assigns.\n“Date of Termination” means (i) if the Employee’s employment is terminated by the Employee’s death, the date of the Employee’s\ndeath; (ii) if the Employee’s employment is terminated because of the Employee’s disability pursuant to Section 8(a)(ii)(A) hereof, 30 days after\nNotice of Termination, provided that the Employee shall not have returned to the performance of the Employee’s duties on a full-time basis\nduring such 30-day period; (iii) if the Employee’s employment is terminated by the Company for Cause pursuant to Section 8(a)(ii)(B) hereof or\nby the Employee pursuant to Section 8(a)(iii) hereof, the date specified in the Notice of Termination; or (iv) if the Employee’s employment is\nterminated during the Employment Period other than pursuant to Section 8(a), the date on which Notice of Termination is given.\n“Effective Date” means December 1, 2006.\n“Employment Period” is defined in Section 2 above.\n“Employee” means Neil Underwood\n“Good Reason” means (i) the Company’s failure to perform or observe any of the material terms or provisions of this Agreement, and\nthe continued failure of the Company to cure such default within 30 days after written demand for performance has been given to the Company\nby the Employee, which demand shall describe specifically the nature of such alleged failure to perform or observe such material terms or\nprovisions; (ii) a change in the Employee’s reporting, duties and/or job title where there is no reduction in the Employee’s Base Salary or Annual\nBonus potential shall not be determined to be Good Reason under this Agreement; (iii) any requirement by the Company without the written\nconsent of the Employee that the Employee relocate to a place more than 50 miles from Atlanta, Georgia to perform his duties hereunder; or\n(iv) the failure of the Company to obtain the assumption of the Company’s obligations under this Agreement by a successor as contemplated by\nSection 13 of this Agreement.\n“Initial Term” is defined in Section 2 above.\n“Non-Renewal” is defined in Section 2 above.\n“Notice of Termination” is defined in Section 8(b) above.\n“Other Agreement” is defined in Section 9(e) above.\n“Parachute Payment” is defined in Section 9(e) above.\n“Related Agreement” is defined in Section 7 above.\n \n“Severance Period” is defined in Section 9(d) above.\n“Subsidiary” means any corporation of which the Company owns securities having a majority of the ordinary voting power in electing\nthe board of directors directly or through one or more subsidiaries and any partnership, limited liability company or other entity in which the\nCompany or any subsidiary owns a controlling interest.\nIN WITNESS WHEREOQF, the undersigned have duly executed and delivered this Agreement, or have caused this Agreement to be duly\nexecuted and delivered on their behalf, as of the Effective Date.\nS1 CORPORATION\nBy: /s/ Johann Dreyer\nPresident and Chief Executive Officer\nTHE EMPLOYEE:\n/s/ Neil Underwood\nCONFIDENTIALITY, NON-DISCLOSURE\nAND NON-SOLICITATION AGREEMENT\nIn consideration and as a condition of my employment by S1 Corporation, a Delaware corporation (the “Company”, which term shall also\ninclude any subsidiaries and divisions of S1 Corporation), I hereby agree with the Company as follows:\n1. Nondisclosure and Use of Proprietary Information.\n \n(a) I represent and warrant that: (i) I am not subject to any legal or contractual duty or agreement that would prevent me from performing\nmy duties for the Company or complying with this Agreement, and I am not in breach of any legal or contractual duty or agreement, including\nany agreement concerning trade secrets or confidential information owned by any other party.\n(b) I will not: use, disclose, or reverse engineer the Trade Secrets or the Confidential Information, except as authorized in writing by the\nCompany; (ii) during my employment with the Company, use, disclose, or reverse engineer (A) any confidential information or trade secrets of\nany former employer or third party, or (B) any works of authorship developed in whole or in part by me during any former employment or for\nany other party, unless authorized in writing by the former employer or third party; or (iii) upon my resignation or termination, (A) retain Trade\nSecrets or Confidential Information, including any copies existing in any form (including electronic form) which are in my possession or control,\nor (B) destroy, delete, or alter the Trade Secrets or Confidential Information without the Company’s written consent.\n(c) The obligations under this Agreement shall (i) with regard to the Trade Secrets, remain in effect as long as the information constitutes a\ntrade secret under applicable law; and (ii) with regard to the Confidential Information, remain in effect during the Restricted Period.\n(d) The confidentiality, property, and proprietary rights protections available in this Agreement are in addition to, and not exclusive of, any\nand all other rights to which the Company is entitled under federal and state law, including, but not limited to, rights provided under copyright\nlaws, trade secret and confidential information laws, and laws concerning fiduciary duties.\n(e) For purposes of this Agreement, the following definitions shall apply:\n(i) “Confidential Information” means (a) information of the Company, to the extent not considered a Trade Secret under applicable law,\nthat (i) relates to the business of the Company, (ii) possesses an element of value to the Company, (iii) is not generally known to the Company’s\ncompetitors, and (iv) would damage the Company if disclosed, and (b) information of any third party provided to the Company which the\nCompany is obligated to treat as confidential. Confidential Information includes, but is not limited to, (i) future business plans, (ii) the\ncomposition, description, schematic or design of products, future products or equipment of the Company, (iii) communication systems, audio\nsystems, system designs and related documentation, (iv) advertising or marketing plans, (v) information regarding independent contractors,\nemployees, clients and customers of the Company, and (vi) information concerning the Company’s financial structure and methods and\nprocedures of operation. Confidential Information shall not include any information that (a) is or becomes generally available to the public other\nthan as a result of an unauthorized disclosure, (b) has been independently developed and disclosed by others without violating this Agreement or\nthe legal rights of any party, or (c) otherwise enters the public domain through lawful means.\n(ii) “Restricted Period” means the time period during my employment with the Company, and for one (1) year after my employment\nwith the Company ends.\n(iii) “Trade Secrets” means information of the Company, and its licensors, suppliers, clients and customers, without regard to form,\nincluding, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a\ndrawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which is not commonly\nknown\nby or available to the public and which information (i) derives economic value, actual or potential, from not being generally known to, and not\nbeing readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of\nefforts that are reasonable under the circumstances to maintain its secrecy.\n2. Assignment of Developments.\n(a) I understand that my employment duties may include inventing in areas directly or indirectly related to the business of the Company or\nto a line of business that the Company may reasonably be interested in pursuing. All Work Product shall constitute work made for hire. If (i) any\nof the Work Product may not be considered work made for hire, or (ii) ownership of all right, title, and interest in and to the Work Product will\nnot vest exclusively in the Company, then, without further consideration, I assign all presently-existing Work Product to the Company, and agree\nto assign, and automatically assign, all future Work Product to the Company.\n(b) The Company will have the right to obtain and hold in its own name copyrights, patents, design registrations and continuations thereof,\nproprietary database rights, trademarks, rights of publicity, and any other protection available in the Work Product. At the Company’s request, 1\nagree to perform, during or after my employment with the Company, any acts to transfer, perfect and defend the Company’s ownership of the\nWork Product, including, but not limited to: (i) executing all documents (including a formal assignment to the Company) for filing an application\nor registration for protection of the Work Product (an “Application”), (ii) explaining the nature of the Work Product to persons designated by the\nCompany, (iii) reviewing Applications and other related papers, or (iv) providing any other assistance reasonably required for the orderly\nprosecution of Applications. I agree to provide the Company with a written description of any Work Product in which I am involved (solely or\njointly with others) and the circumstances surrounding the creation of such Work Product.\n(c) During my employment and after my employment with the Company ends, I grant to the Company an irrevocable, nonexclusive,\nworldwide, royalty-free license to: (i) make, use, sell, copy, perform, display, distribute, or otherwise utilize copies of the Licensed Materials,\n(ii) prepare, use and distribute derivative works based upon the Licensed Materials, and (iii) authorize others to do the same. I will notify the\nCompany in writing of any Licensed Materials I deliver to the Company.\n(d) For purposes of this Agreement, the following definitions shall apply:\n(i) “Licensed Materials” means any materials that I utilize for the benefit of the Company, or deliver to the Company or the Company’s\ncustomers, which (i) do not constitute Work Product, (ii) are created by me or of which I am otherwise in lawful possession, and (iii) I may\nlawfully utilize for the benefit of, or distribute to, the Company or the Company’s customers.\n(ii) “Work Product” means (a) any data, databases, materials, documentation, computer programs, inventions (whether or not\npatentable), designs, and/or works of authorship, including but not limited to, discoveries, ideas, concepts, properties, formulas, compositions,\nmethods, programs, procedures, systems, techniques, products, improvements, innovations, writings, pictures, audio, video, images of me, and\nartistic works, and (b) any subject matter protected under patent, copyright, proprietary database, trademark, trade secret, rights of publicity,\nconfidential information, or other property rights, including all worldwide rights therein, that is or was conceived, created or developed in whole\nor in part by me while employed by the Company and that either (i) is created within the scope of my employment, (ii) is based on, results from,\nor is suggested by any work performed within the scope of my employment and is directly or indirectly related to the business of the Company or\na line of business that the Company may reasonably be interested in pursuing, (iii) has been or will be paid for by the Company, or (iv) was\ncreated or improved in whole or in part by using the Company’s time, resources, data, facilities, or equipment.\n3. Non-Solicitation.\n(a) During the Restricted Period, I will not, directly or indirectly, solicit, recruit or induce any Employee to (i) terminate his employment\nrelationship with the Company, or (ii) work for any other person or entity engaged in the Business.\n(b) During the Restricted Period, I will not directly or indirectly solicit any Customer of the Company for the purpose of providing any\ngoods or services competitive with the Business. The restrictions set forth in this Section apply only to Customers with whom I had Contact.\n(c) For purposes of this Agreement, the following definitions shall apply:\n(i) “Business” shall mean the business of developing, designing, and implementing computer applications that allow banks, brokerage\nfirms, and insurance companies to enable their customers to access financial information and conduct transactions over multiple delivery\nchannels.\n(ii) “Contact” means any interaction between a Customer and me which (i) takes place in an effort to establish, maintain, and/or further\na business relationship on behalf of the Company and (ii) occurs during the last year of my employment with the Company (or during my\nemployment if employed less than a year).\n(iii) “Customer” means any person or entity to whom the Company has sold its products or services, or solicited to sell its products or\nservices.\n(iv) “Employee” means any person who (i) is employed by the Company at the time my employment with the Company ends, (ii) was\nemployed by the Company during the last year of my employment with the Company (or during my employment if employed less than a year),\nor (iii) is employed by the Company during the Restricted Period.\n4. Equitable Relief.\nIf I breach this Agreement, I agree that: (a) the Company would suffer irreparable harm; (b) it would be difficult to determine damages,\nand money damages alone would be an inadequate remedy for the injuries suffered by the Company; and (c) if the Company seeks injunctive\nrelief to enforce this Agreement, I will waive and will not (i) assert any defense that the Company has an adequate remedy at law with respect to\nthe breach, (ii) require that the Company submit proof of the economic value of any Trade Secret or Confidential Information, or (iii) require the\nCompany to post a bond or any other security. Nothing contained in this Agreement shall limit the Company’s right to any other remedies at law\nor in equity.\n5. No Right to Continued Employment.\nI understand that this Agreement does not create a contract of employment or a contract for benefits. Except as set forth in a separate\nagreement duly authorized and executed by the Company, my employment relationship with the Company is at-will. This means that at either my\noption or the Company’s option, my employment may be terminated at any time, with or without cause or notice.\n6. Attorneys’ Fees\nIn the event of litigation relating to this Agreement, the Company shall, if it is the prevailing party, be entitled to recover attorneys’ fees\nand costs of litigation in addition to all other remedies available at law or in equity.\n7. Waivers.\nAny waiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any\nsubsequent breach of such provision or any other provision hereof.\n8. Acknowledgment; Severability.\nI acknowledge that the restrictions contained in this Agreement are reasonable and necessary to protect the legitimate business interests of\nthe Company, and will not impair or infringe upon my right to work or earn a living in the event my employment with the Company ends. The\nprovisions of this Agreement are severable. If any provision is determined to be invalid, illegal, or unenforceable, in whole or in part, the\nremaining provisions and any partially enforceable provisions shall remain in full force and effect.\n9. Survival of Obligations.\nI understand that I shall not have the right to assign my rights or obligations under this Agreement. My obligations under this Agreement\nshall survive the termination of my employment regardless of the manner of, or reason for, such termination.\n10. Assignment.\nThis Agreement shall be assignable to, and shall inure to the benefit of, the Company’s successors and assigns, including, without\nlimitation, successors through merger, name change, consolidation, or sale of a majority of the Company’s stock or assets, and shall be binding\nupon me.\n11. Governing Law.\nThe laws of the State of Delaware shall govern this Agreement. If Delaware’s conflict of law rules would apply another state’s laws, the\nCompany and I agree that Delaware law shall still govern.\n12. Entire Agreement.\nThis Agreement constitutes the entire agreement between the Company and me concerning the subject matter of this Agreement. This\nAgreement supersedes any prior communications, agreements or understandings, whether oral or written, between the Company and me relating\nto the subject matter of this Agreement.\n13. Consent to Jurisdiction.\nI agree that any claim arising out of or relating to this Agreement shall be brought in a state or federal court of competent jurisdiction in\nAtlanta, Georgia. I consent to the personal jurisdiction of the state and/or federal courts located in Georgia. I waive (a) any objection to\njurisdiction or venue, or (b) any defense claiming lack of jurisdiction or improper venue, in any action brought in such courts.\nIN WITNESS WHEREOQF, the undersigned has executed this Confidentiality, Non-Disclosure and Non-Solicitation Agreement as of the\n1st day of December, 2006.\n/s/ Neil Underwood\nSignature\nName: Neil Underwood\nAddress\nAgreed to and Accepted:\nS1 CORPORATION\nBy: /s/ Johann Dreyer\nPresident and Chief Executive Officer	EX-10.19 2 g12049exv10w19.htm EX-10.19 EMPLOYMENT AGREEMENT & CONFIDENTIALITY\nAGREEMENT/ NEIL UNDERWROOD\nExhibit 10.19\nEMPLOYMENT AGREEMENT\nThis EMPLOYMENT AGREEMENT ("Agreement") is entered into as of this 1st day of December 2006 (the "Effective Date"), by and\nbetween S1 Corporation, a Delaware corporation (the "Company"), and Neil Underwood, individual (the "Employee").\nWHEREAS, the Company and the Employee desire to enter into this Employment Agreement to set out the terms and conditions for the\nemployment relationship of the Employee with the Company from and after the Effective Date; and\nWHEREAS, the board of directors of the Company (the "Board") has approved and authorized the Company's execution, delivery and\nperformance of this Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and other good and valuable consideration,\nthe receipt and sufficiency of which hereby are acknowledged, the parties hereto agree as follows:\n1. Employment Agreement. On the terms and conditions set forth in this Agreement, the Company agrees to employ the Employee and the\nEmployee agrees to be employed by the Company for the Employment Period set forth in Section 2 hereof and in the position and with the duties\nset forth in Section 3 hereof. Terms used herein with initial capitalization not otherwise defined are defined in Section 20 below.\n2. Term. The initial term of employment under this Agreement shall be for a three-year period commencing on the Effective Date (the\n"Initial Term"). The term of employment shall be automatically renewed for an additional consecutive 12-month period (the "Extended Term")\nas of the first and every subsequent anniversary of the Effective Date, unless and until either party provides written notice to the other party\nin\naccordance with Section 10 hereof not less than 90 days before such anniversary date that such party is terminating the term of employment\nunder this Agreement ("Non-Renewal"), which termination shall be effective as of the end of such Initial Term or Extended Term, as the case\nmay be, or until such term of employment is otherwise sooner terminated as hereinafter set forth. Such Initial Term and all such Extended Terms\nare collectively referred to herein as the "Employment Period." A notice of Non-Renewal given by either party to this Agreement shall not be\ndeemed\na\ntermination\nof\nthe\nEmployee's\nemployment\nfor\npurposes\nof\nSection\n9\nof\nthis\nAgreement\nunless\notherwise\nexpressly\nprovided\nin\nsuch\nnotice of Non-Renewal. The Company's obligations under Section 9 hereof shall survive the expiration or termination of the Employment\nPeriod.\n3. Position and Duties. The Employee shall initially serve as the General Manager/Vice President of the Company. The Employee\nacknowledges that the Company may, at its sole discretion, change the Employee's title, job duties and responsibilities and reporting as the\nCompany sees fit in its sole discretion. In any role in which the Employee is employed with the Company, the Employee shall render executive,\npolicy and other management services to the Company of the type customarily performed by persons serving in such capacity. The Employee\nshall initially report to the President of the Enterprise Business Unit of the Company unless otherwise determined by the Company. The\nEmployee shall also perform such other duties with the Company and with any Subsidiary as the CEO of the Company or the Board may from\ntime to time reasonably determine and assign to the Employee. The Employee shall devote the Employee's reasonable best efforts and\nsubstantially full business time to the performance of the Employee's duties and the advancement of the business and affairs of the Company.\nThe Employee agrees that during the Employment Period he or she will not be entitled to additional compensation for serving as a member of the\nboard of directors of the Company or any Subsidiary if he or she is elected to serve thereon.\n4. Place of Performance. In connection with the Employee's employment by the Company, the Employee shall be based at the offices of\nthe Company in Atlanta, Georgia, except as otherwise agreed by the Employee and the Company and except for reasonable travel on Company\nbusiness.\n5. Compensation and Benefits; Stock Options.\n(a) Base Salary. During the Employment Period, the Company shall pay to the Employee an annual base salary (the "Base Salary") at\nthe rate of $200,000.00 per year. The Base Salary will be reviewed annually and may be increased at the discretion of the Company. The Base\nSalary shall be payable semi-monthly or in such other installments as shall be consistent with the Company's payroll procedures.\n(b) Annual Bonus. The Employee will be eligible to receive an annual bonus, payable no later than the end of the first fiscal quarter of\neach calendar year during the Employment Period (pro-rated for any period that is less than 12 months) of up to $200,000.00 for such calendar\nyear, based on the attainment of specific Company and individual performance targets as may be assigned by the Company annually.\n(c) Benefits. During the Employment Period, the Employee will be entitled to participate in any fringe benefit welfare benefit plan of\nthe Company (on the same terms as provided to other employees of the Company), including any plan providing for employee stock purchases,\npension or retirement income, retirement savings, employee stock ownership, deferred compensation or medical, prescription, dental, disability,\nemployee life, group life, accidental death or travel accident insurance benefits that the Company may adopt for the benefit of employees, in\naccordance with the terms of such plan. Nothing in this Agreement shall restrict the right of the Company to change insurance carriers and to\nadopt, amend, terminate or modify employee benefit plans and arrangements at any time and without the consent of the Employee.\n(d) Stock Options. The Company may grant options to purchase the stock of the Company to the Employee in accordance with the\nterms of the Company's stock option plans.\n(e) Vacation; Holidays. The Employee shall be entitled to all public holidays observed by the Company and to annual vacation for such\nnumber of days as may be determined by the Company, and otherwise in accordance with the applicable vacation policies for senior executives\nof the Company, which shall be taken at a reasonable time or times.\n(f) Withholding Taxes and Other Deductions. To the extent required by law, the Company shall withhold from any payments due\nEmployee under this Agreement any applicable federal, state or local taxes and such other deductions as are prescribed by law or Company\npolicy or are otherwise authorized by the Employee.\n6. Expenses. The Employee is expected and is authorized to incur reasonable expenses in the performance of his duties hereunder. The\nCompany shall reimburse the Employee for all such expenses in accordance with the Company's expense reimbursement policy, upon periodic\npresentation by the Employee of an itemized account, including reasonable substantiation, of such expenses.\n7. Confidentiality, Non-Disclosure and Non-Competition Agreement.\nConcurrently with the execution of this Agreement, the parties are entering into an Employee Covenants Agreement (the "Related\nAgreement").\n8. Termination of Employment.\n(a) Permitted Terminations. The Employee's employment hereunder may be terminated during the Employment Period under the\nfollowing circumstances:\ni.\nDeath. The Employee's employment hereunder shall terminate upon the Employee's death;\nii. By the Company.. The Company may terminate the Employee's employment:\na.\nIf the Employee shall have been substantially unable to perform the Employee's material duties hereunder by reason of illness,\nphysical or mental disability or other similar incapacity, which inability shall continue for three consecutive\nmonths (provided, that until such termination, the Employee shall continue to receive his compensation and benefits hereunder,\nreduced by any benefits payable to him or her under any disability insurance policy or plan applicable to him or her); or\nb.\nFor Cause;\niii. By the Employee. The Employee may terminate his employment for any reason or for no reason.\n(b) Termination. Any termination of the Employee's employment by the Company or the Employee (other than because of the\nEmployee's death) shal be communicated by written Notice of Termination to the other party hereto in accordance with Section 10 hereof. For\npurposes of this Agreement, a "Notice of Termination" shall mean a notice which shall indicate the specific termination provision in this\nAgreement relied upon, if any, and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of\nthe Employee's employment under the provision so indicated. Termination of the Employee's employment shall take effect on the Date of\nTermination.\n9. Compensation Upon Termination or Change in Control.\n(a) Death. If the Employee's employment is terminated during the Employment Period as a result of the Employee's death, the\nCompany shall pay to the Employee's estate, or as may be directed by the legal representatives of such estate, the Employee's Base Salary due\nthrough the Date of Termination, a pro rata portion of the annual bonus that would have been payable for the calendar year of termination\nif\nthe\nEmployee's employment had not terminated (calculated based upon actual results through the Date of Termination and based upon budget for the\nremainder of the period and pro rated for the portion of the year during which the Employee was employed) and all other unpaid amounts, if any,\nto\nwhich the Employee is entitled as of the Date of Termination, at the time such payments are due, and the Company shall have no further\nobligation to the Employee under this Agreement.\n(b) Disability.. If the Company terminates the Employee's employment during the Employment Period because of the Employee's\ndisability pursuant to Section 8(a)(ii)(A) hereof, the Company shall pay the Employee the Employee's Base Salary due through the Date of\nTermination, a pro rata portion of the annual bonus that would have been payable for the calendar year of termination if the Employee's\nemployment had not terminated (calculated based upon actual results through the Date of Termination and based upon budget for the remainder\nof the period and pro rated for the portion of the year during which the Employee was employed) and all other unpaid amounts, if any, to which\nthe Employee is entitled as of the Date of Termination, at the time such payments are due, and the Company shall have no further obligations to\nthe Employee under this Agreement; provided, that payments so made to the Employee with respect to any period that the Employee is\nsubstantially unable to perform the Employee's material duties hereunder by reason of illness, physical or mental illness or other similar\nincapacity shall be reduced by the sum of the amounts, if any, payable to the Employee by reason of such disability, at or prior to the time of any\nsuch payment, under any disability insurance policy or benefit plan and which amounts have not previously been applied to reduce any such\npayment.\n(c) Termination by the Company. for Cause or by the Employee without Good Reason. If, during the Employment Period, the Company\nterminates the Employee's employment for Cause pursuant to Section 8(a)(ii)(B) hereof or the Employee terminates his employment without\nGood Reason, the Company shall pay the Employee the Employee's Base Salary due through the Date of Termination, and all other unpaid\namounts,\nif\nany,\nto\nwhich\nthe\nEmployee\nis\nentitled\nas\nof\nthe\nDate\nof\nTermination,\nat\nthe\ntime\nsuch\npayments\nare\ndue,\nand\nthe\nCompany\nshall\nhave\nno further obligations to the Employee under this Agreement. In the event that the Company intends to terminate the Employee for Cause, the\nEmployee shall have a reasonable opportunity, together with his counsel, to be heard before the Board of Directors of the Company before such\ntermination.\n(d) Termination by the Company without Cause or by the Employee with Good Reason. Subject to Section 9(e) below, if the Company\nterminates the Employee's employment during the Employment Period other than for Cause, disability or death pursuant to Section 8(a)(i) or\n(ii) hereof or the Employee terminates employment hereunder with Good Reason, the Company shall (i) pay the Employee the\nEmployee's Base Salary due through the Date of Termination, a pro rata portion of the annual bonus that would have been payable for the\ncalendar year of termination if the Employee's employment had not terminated (calculated based upon actual results through the Date of\nTermination and based upon budget for the remainder of the period and pro rated for the portion of the year during which the Employee was\nemployed) and all other unpaid amounts, if any, to which the Employee is entitled as of the Date of Termination, at the time such payments are\ndue, (ii) pay, during the 12-month period commencing on the Date of Termination (the "Severance Period"), to the Employee an aggregate\namount equal to Employee's Base Salary, payable in equal installments on the Company's regular salary payment dates, (iii) shall continue\nin\neffect during the Severance Period the employee benefits provided to the Employee under Section 5(c) hereof immediately before the Date of\nTermination (except to that, to the extent such benefits are provided pursuant to a qualified plan under Section 401(a) of the Code, the Company\nshall provide a substantially equivalent nonqualified benefit) and (iv) if such termination occurs within two years after a Change in Control (or\nbefore a Change in Control has occurred, but after the Company has commenced negotiations of a transaction that results in a Change in\nControl), shall cause all of the outstanding options then held by the Employee to purchase stock of the Company to be fully vested and\nexercisable; provided, notwithstanding anything herein to the contrary, the provision for acceleration of options described in this paragraph will\nnot apply to any options, restricted stock, SAR or other awards approved by the S1 Board of Directors and/or granted to Employee on or about\nNovember 1, 2006; provided further, that no notice of Non-Renewa shall be deemed to be a termination of the Employee's employment for such\npurposes unless otherwise expressly provided in such notice of Non-Renewal. As a condition precedent to the receipt of the foregoing payments\nand benefits, if requested by the Company, the Employee shall enter into an agreement with the Company confirming the Company's right to\ncontinued performance by the Employee of the Employee's obligations under the Related Agreement during the period following termination of\nthe Employee's employment.\n(e) Limitation on Parachute Payments. Notwithstanding any other provision of this Agreement or of any other agreement, contract, or\nunderstanding heretofore or hereafter entered into by the Employee with the Company or any subsidiary or affiliate, except an agreement,\ncontract, or understanding hereafter entered into that expressly modifies or excludes application of this paragraph (an "Other Agreement"), and\nnotwithstanding any formal or informal plan or other arrangement for the direct or indirect provision of compensation to the Employee\n(including groups or classes of participants or beneficiaries of which the Employee is a member), whether or not such compensation is deferred,\nis in cash, or is in the form of a benefit to or for the Employee (a "Benefit Arrangement"), if the Employee is a "disqualified individual," as\ndefined\nin\nSection\n280G(c)\nof\nthe\nCode,\nno\npayment\nor\nbenefit\nshall\nbe\nmade\nor\nprovided\nto\nthe\nEmployee\nor\nbecome\nvested,\nexercisable\nor\npayable, as applicable, (i) to the extent that such payment, right to exercise, vesting, or other benefit, taking into account all other payments,\nrights, or benefits to or for the Employee, or becoming vested, exercisable or payable, as the case may be, under this Agreement, all Other\nAgreements and all Benefit Arrangements, would cause any such payment, right to exercise, vesting or other benefit to which the Employee is or\nwould be entitled under this Agreement to be considered a "parachute payment" within the meaning of Section 280G(b)(2) of the Code as then in\neffect (a "Parachute Payment") and (ii) if, as a result of receiving a Parachute Payment, the aggregate after-tax amounts received by the\nEmployee under this Agreement, all Other Agreements, and all Benefit Arrangements would be less than the maximum after-tax amount that\ncould be received by the Employee without causing any such payment, right to exercise, vesting or other benefit to be considered a Parachute\nPayment. In the event that the receipt of any such payment, right to exercise, vesting, or other benefit under this Agreement, in conjunction with\nall\nother\nrights,\npayments,\nor\nbenefits\nto\nor\nfor\nthe\nEmployee\nunder\nany\nOther\nAgreement\nor\nany\nBenefit\nArrangement\nwould\ncause\nthe\nEmployee\nto be considered to have received a Parachute Payment under this Agreement that would have the effect of decreasing the after-tax amount\nreceived by the Employee as described in clause (ii) of the preceding sentence, then the Employee shall have the right, in the Employee's sole\ndiscretion,\nto\ndesignate\nthose\nrights,\npayments\nor\nbenefits\n(or\nthe\nvesting\nor\nexercisability\nthereof)\nunder\nthis\nAgreement,\nany\nOther\nAgreements\nand any Benefit Arrangements that should be reduced or eliminated so as to avoid having the right, payment or benefit to the Employee (or the\nvesting or exercisability thereof) under this Agreement be deemed to be a Parachute Payment. All determinations required to be made under this\nSection 9(e), including whether and when a reduction in rights, payments or benefits (or the vesting or exercisability thereof) is required and the\namount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made by PricewaterhouseCoopers LLP or\nsuch other certified public accounting firm reasonably acceptable to the Company as may be designated by the Employee in writing (the\n"Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Employee within 15 business days of the\nreceipt of notice from the Employee or the Company. In the event that the Accounting Firm is serving as accountant or auditor for the Company\nor any individual, entity or group effecting a change in the ownership or effective control of the Company (within the meaning of Section 280G\nof the Code), the Employee shall appoint another nationally recognized\naccounting firm that is reasonably acceptable to the Company to make the determinations required hereunder (which accounting firm shall then\nbe referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any\ndetermination by the Accounting Firm shall be binding upon the Company and the Employee.\n(f) Liquidated Damages. The parties acknowledge and agree that damages which will result to the Employee for termination by the\nCompany without Cause or other breach of this Agreement by the Company shall be extremely difficult or impossible to establish or prove, and\nagree that the amounts payable to the Employee under Section 9(d) hereof (the "Severance Payments") shall constitute liquidated damages for\nany breach of this Agreement by the Company through the Date of Termination. The Employee agrees that, except for such other payments and\nbenefits to which the Employee may be entitled as expressly provided by the terms of this Agreement or any applicable benefit plan, such\nliquidated damages shall be in lieu of all other claims that the Employee may make by reason of termination of his employment or any such\nbreach of this Agreement and that, as a condition to receiving the Severance Payments, the Employee will execute a release of claims in a form\nreasonably satisfactory to the Company.\n10. Notices. All notices, demands, requests, or other communications which may be or are required to be given, served, or sent by any\nparty\nto any other party pursuant to this Agreement shall be in writing and shall be hand delivered, sent by overnight courier or mailed by first-\nclass, registered or certified mail, return receipt requested, postage prepaid, or transmitted by telegram, telecopy or telex, addressed as follows:\n(i) If to the Company:\nS1 Corporation\n3500 Lenox Road\nSuite 200\nAtlanta, GA 30326\nFax: 404 923 6717\nAttn: Chief Legal Officer\nwith a copy (which shall not constitute notice) to:\nStuart G. Stein\nHogan & Hartson, L.L.P.\n555 13th Street, N.W.\nWashington, D.C. 20004-1190\nFax: 202/637-5910\n(ii) If to the Employee:\nEach party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so\ngiven, served or sent. Each notice, demand, request, or communication which shall be hand delivered, sent, mailed or telecopied in the manner\ndescribed above, or which shall be delivered to a telegraph company, shall be deemed sufficiently given, served, sent, received or delivered for\nall purposes at such time as it is delivered to the addressee (with the return receipt, the delivery receipt, or (with respect to a telecopy) the\nanswerback being deemed conclusive, but not exclusive, evidence of such delivery) or at such time as delivery is refused by the addressee upon\npresentation.\n11. Severability.. The invalidity or unenforceability of any one or more provisions of this Agreement shall not affect the validity or\nenforceability of the other provisions of this Agreement, which shall remain in full force and effect.\n12. Survival. It is the express intention and agreement of the parties hereto that the provisions of Sections 9, 10, 11, 13, 17 and 20 hereof\nand this Section 12 shall survive the termination of employment of the Employee. In addition, all obligations of the Company to make payments\nhereunder shall survive any termination of this Agreement on the terms and conditions set forth herein.\n13. Assignment. The rights and obligations of the parties to this Agreement shall not be assignable or delegable, except that (i) in the event\nof the Employee's death, the personal representative or legatees or distributees of the Employee's estate, as the case may be, shall have the right\nto receive any amount owing and unpaid to the Employee hereunder and (ii) the rights and obligations of the Company hereunder shall be\nassignable and delegable in connection with any subsequent merger, consolidation, sale of all or substantially all of the assets or stock of the\nCompany\nor\nsimilar\ntransaction\ninvolving\nthe\nCompany\nor\na\nsuccessor\ncorporation.\nThe\nCompany\nshall\nrequire\nany\nsuccessor\nto\nthe\nCompany\nto\nexpressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to\nperform it if no such succession had taken place.\n14. Binding Effect. Subject to any provisions hereof restricting assignment, this Agreement shall be binding upon the parties hereto and\nshall inure to the benefit of the parties and their respective heirs, devisees, executors, administrators, legal representatives, successors and\nassigns.\n15. Amendment; Waiver. This Agreement shall not be amended, altered or modified except by an instrument in writing duly executed by\nthe parties hereto. Neither the waiver by either of the parties hereto of a breach of or a default under any of the provisions of this Agreement, nor\nthe failure of either of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or\nprivilege hereunder, shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any such\nprovisions, rights or privileges hereunder.\n16. Headings. Section and subsection headings contained in this Agreement are inserted for convenience of reference only, shall not be\ndeemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the\nprovisions hereof.\n17. Governing Law. This Agreement, the rights and obligations of the parties hereto, and any claims or disputes relating thereto, shall be\ngoverned by and construed in accordance with the laws of the State of Delaware (but not including any choice of law rule thereof\nthat\nwould\ncause the laws of another jurisdiction to apply).\n18. Entire Agreement. This Agreement constitutes the entire agreement between the parties respecting the employment of the Employee,\nthere being no representations, warranties or commitments except as set forth herein.\n19. Counterparts. This Agreement may be executed in two counterparts, each of which shall be an original and all of which shall be\ndeemed to constitute one and the same instrument.\n20. Definitions.\n"Accounting Firm" is defined in Section 9(e) above.\n"Agreement" means this Employment Agreement.\n"Base Salary." is defined in Section 5(a) above.\n"Benefit Arrangement" is defined in Section 9(e) above.\n"Board" means the board of directors of the Company.\n"Cause" means (i) the indictment by a grand jury or conviction of a felony or a crime involving moral turpitude (excluding a traffic\nviolation not involving any period of incarceration) or the willful commission of any other act or omission involving dishonesty or fraud with\nrespect to, and materially adversely\naffecting the business affairs of, the Company or any of its Subsidiaries or any of their customers or suppliers, (ii) conduct tending to bring the\nCompany or any of its Subsidiaries into public disgrace or disrepute that is determined by the Company to cause or be reasonably likely to cause\nsubstantial injury to the business and operations of the Company or such Subsidiary, (iii) substantial and repeated failure to perform duties,\nincluding but not limited to achieving quarterly goals, of the office held by the Employee as reasonably directed by the Company (other than any\nsuch failure resulting from the Employee's incapacity due to injury or illness), and such failure is not cured within 30 days after the Employee\nreceives written notice thereof from the Company that specifically identifies the manner in which the Company believes the Employee has not\nsubstantially performed his duties, (iv) gross negligence or willful misconduct with respect to the Company or any of its Subsidiaries that causes\nsubstantial and material injury to the business and operations of the Company or such Subsidiary or (v) any material breach of the Related\nAgreement. For purposes of this provision, no act or failure to act, on the part of the Employee, shall be considered "willful" unless it is done,\nor\nomitted to be done, by the Employee in bad faith or without reasonable belief that the Employee's action or omission was in the best interests\nof\nthe Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or based upon advice of\ncounsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Employee in good faith and in the best\ninterests of the Company.\n"Change in Control" means the earliest to occur of the following: (i) any person (other than a corporation (a "Holding Company") all of\nthe common stock of which is owned, immediately after the transaction, by persons who owned more than 50 percent of the voting shares of the\nCompany immediately before the transaction) becomes the beneficial owner of 50 percent or more of the total number of voting shares of the\nCompany; (ii) any person (other than the persons named as proxies solicited on behalf of the Board) holds revocable or irrevocable proxies, as to\nthe election or removal of two or more directors of the Company, for more than 50 percent of the total number of voting shares of the Company;\n(iii) any person (other than a Holding Company) has commenced a tender or exchange offer, or entered into an agreement or received an option,\nto acquire beneficial ownership of more than 50 percent of the total number of voting shares of the Company; (iv) there is a sale or other transfer\nof all or substantially all of the assets of the Company other than to a Holding Company or a corporation controlled by the Company or (v) as the\nresult of, or in connection with, any cash tender or exchange offer, merger, or other business combination, sale of assets or contested election, or\nany combination of the foregoing transactions, the persons who were directors of the Company before such transaction shall cease to constitute\nat\nleast a majority of the Board or any successor corporation. In the event that the Company (or any successor entity) becomes a subsidiary of a\nHolding Company, references to the Company in the preceding sentence shall be deemed to be references to the Holding Company.\nNotwithstanding the foregoing, a "Change in Control" will not be deemed to have occurred under clauses (ii) or (iii) above if within 30 days of\nsuch action, the Board (by a two-thirds affirmative vote of the directors in office before such action occurred) makes a determination that such\naction does not and is not likely to constitute a change in control of the Company. For purposes of this definition, a "person" includes an\nindividual, corporation, partnership, trust, association, joint venture, pool, syndicate, unincorporated organization, joint-stock company, or similar\norganization or group acting in concert. A person for these purposes shall be deemed to be a beneficial owner as that term is used in Rule 13d-3\nunder the Securities Exchange Act of 1934, as amended.\n"Code" means the Internal Revenue Code of 1986, as amended.\n"Company." means S1 Corporation and its successors and assigns.\n"Date of Termination" means (i) if the Employee's employment is terminated by the Employee's death, the date of the Employee's\ndeath; (ii) if the Employee's employment is terminated because of the Employee's disability pursuant to Section 8(a)(ii)(A) hereof, 30 days after\nNotice of Termination, provided that the Employee shall not have returned to the performance of the Employee's duties on a full-time basis\nduring such 30-day period; (iii) if the Employee's employment is terminated by the Company for Cause pursuant to Section 8(a)(ii)(B) hereof\nor\nby the Employee pursuant to Section 8(a)(iii) hereof, the date specified in the Notice of Termination; or (iv) if the Employee's employment is\nterminated during the Employment Period other than pursuant to Section 8(a), the date on which Notice of Termination is given.\n"Effective Date" means December 1, 2006.\n"Employment Period" is defined in Section 2 above.\n"Employee" means Neil Underwood\n"Good Reason" means (i) the Company's failure to perform or observe any of the material terms or provisions of this Agreement, and\nthe continued failure of the Company to cure such default within 30 days after written demand for performance has been given to the Company\nby the Employee, which demand shall describe specifically the nature of such alleged failure to perform or observe such material terms or\nprovisions; (ii) a change in the Employee's reporting, duties and/or job title where there is no reduction in the Employee's Base Salary or Annual\nBonus potential shall not be determined to be Good Reason under this Agreement; (iii) any requirement by the Company without the written\nconsent of the Employee that the Employee relocate to a place more than 50 miles from Atlanta, Georgia to perform his duties hereunder; or\n(iv) the failure of the Company to obtain the assumption of the Company's obligations under this Agreement by a successor as contemplated by\nSection 13 of this Agreement.\n"Initial Term" is defined in Section 2 above.\n"Non-Renewal" is defined in Section 2 above.\n"Notice of Termination" is defined in Section 8(b) above.\n"Other Agreement" is defined in Section 9(e) above.\n"Parachute Payment" is defined in Section 9(e) above.\n"Related Agreement" is defined in Section 7 above.\n"Severance Period" is defined in Section 9(d) above.\n"Subsidiary." means any corporation of which the Company owns securities having a majority of the ordinary voting power in electing\nthe board of directors directly or through one or more subsidiaries and any partnership, limited liability company or other entity in which the\nCompany or any subsidiary owns a controlling interest.\nIN WITNESS WHEREOF, the undersigned have duly executed and delivered this Agreement, or have caused this Agreement to be duly\nexecuted and delivered on their behalf, as of the Effective Date.\nS1 CORPORATION\nBy: /s/ Johann Dreyer\nPresident and Chief Executive Officer\nTHE EMPLOYEE:\n/s/ Neil Underwood\nCONFIDENTIALITY, NON-DISCLOSURE\nAND NON-SOLICITATION AGREEMENT\nIn consideration and as a condition of my employment by S1 Corporation, a Delaware corporation (the "Company", which term shall also\ninclude any subsidiaries and divisions of S1 Corporation), I hereby agree with the Company as follows:\n1. Nondisclosure and Use of Proprietary Information.\n(a) I represent and warrant that: (i) I am not subject to any legal or contractual duty or agreement that would prevent me from performing\nmy duties for the Company or complying with this Agreement, and I am not in breach of any legal or contractual duty or agreement, including\nany agreement concerning trade secrets or confidential information owned by any other party.\n(b) I will not: use, disclose, or reverse engineer the Trade Secrets or the Confidential Information, except as authorized in writing by the\nCompany; (ii) during my employment with the Company, use, disclose, or reverse engineer (A) any confidential information or trade secrets of\nany former employer or third party, or (B) any works of authorship developed in whole or in part by me during any former employment or for\nany other party, unless authorized in writing by the former employer or third party; or (iii) upon my resignation or termination, (A) retain Trade\nSecrets or Confidential Information, including any copies existing in any form (including electronic form) which are in my possession or control,\nor (B) destroy, delete, or alter the Trade Secrets or Confidential Information without the Company's written consent.\n(c) The obligations under this Agreement shall (i) with regard to the Trade Secrets, remain in effect as long as the information constitutes a\ntrade secret under applicable law; and (ii) with regard to the Confidential Information, remain in effect during the Restricted Period.\n(d) The confidentiality, property, and proprietary rights protections available in this Agreement are in addition to, and not exclusive of, any\nand all other rights to which the Company is entitled under federal and state law, including, but not limited to, rights provided under copyright\nlaws, trade secret and confidential information laws, and laws concerning fiduciary duties.\n(e) For purposes of this Agreement, the following definitions shall apply:\n(i) "Confidentia Information" means (a) information of the Company, to the extent not considered a Trade Secret under applicable law,\nthat (i) relates to the business of the Company, (ii) possesses an element of value to the Company, (iii) is not generally known to the Company's\ncompetitors, and (iv) would damage the Company if disclosed, and (b) information of any third party provided to the Company which the\nCompany is obligated to treat as confidential. Confidential Information includes, but is not limited to, (i) future business plans, (ii) the\ncomposition, description, schematic or design of products, future products or equipment of the Company, (iii) communication systems, audio\nsystems, system designs and related documentation, (iv) advertising or marketing plans, (v) information regarding independent contractors,\nemployees, clients and customers of the Company, and (vi) information concerning the Company's financial structure and methods and\nprocedures\nof\noperation.\nConfidential\nInformation\nshall\nnot\ninclude\nany\ninformation\nthat\n(a)\nis\nor\nbecomes\ngenerally\navailable\nto\nthe\npublic\nother\nthan as a result of an unauthorized disclosure, (b) has been independently developed and disclosed by others without violating this Agreement\nor\nthe legal rights of any party, or (c) otherwise enters the public domain through lawful means.\n(ii) "Restricted Period" means the time period during my employment with the Company, and for one (1) year after my employment\nwith the Company ends.\n(iii) "Trade Secrets" means information of the Company, and its licensors, suppliers, clients and customers, without regard to form,\nincluding, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a\ndrawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which is not commonly\nknown\nby or available to the public and which information (i) derives economic value, actual or potential, from not being generally known to, and not\nbeing readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of\nefforts that are reasonable under the circumstances to maintain its secrecy.\n2. Assignment of Developments.\n(a) I understand that my employment duties may include inventing in areas directly or indirectly related to the business of the Company or\nto a line of business that the Company may reasonably be interested in pursuing. All Work Product shall constitute work made for hire. If (i) any\nof the Work Product may not be considered work made for hire, or (ii) ownership of all right, title, and interest in and to the Work Product will\nnot vest exclusively in the Company, then, without further consideration, I assign all presently-existing Work Product to the Company, and agree\nto assign, and automatically assign, all future Work Product to the Company.\n(b) The Company will have the right to obtain and hold in its own name copyrights, patents, design registrations and continuations thereof,\nproprietary database rights, trademarks, rights of publicity, and any other protection available in the Work Product. At the Company's request, I\nagree to perform, during or after my employment with the Company, any acts to transfer, perfect and defend the Company's ownership of the\nWork Product, including, but not limited to: (i) executing all documents (including a formal assignment to the Company) for filing an application\nor registration for protection of the Work Product (an "Application"), (ii) explaining the nature of the Work Product to persons designated by the\nCompany, (iii) reviewing Applications and other related papers, or (iv) providing any other assistance reasonably required for the orderly\nprosecution of Applications. I agree to provide the Company with a written description of any Work Product in which I am involved (solely or\njointly with others) and the circumstances surrounding the creation of such Work Product.\n(c) During my employment and after my employment with the Company ends, I grant to the Company an irrevocable, nonexclusive,\nworldwide, royalty-free license to: (i) make, use, sell, copy, perform, display, distribute, or otherwise utilize copies of the Licensed Materials,\n(ii) prepare, use and distribute derivative works based upon the Licensed Materials, and (iii) authorize others to do the same. I will notify\nthe\nCompany in writing of any Licensed Materials I deliver to the Company.\n(d) For purposes of this Agreement, the following definitions shall apply:\n(i)\n"Licensed Materials" means any materials that I utilize for the benefit of the Company, or deliver to the Company or the Company's\ncustomers, which (i) do not constitute Work Product, (ii) are created by me or of which I am otherwise in lawful possession, and (iii) I may\nlawfully utilize for the benefit of, or distribute to, the Company or the Company's customers.\n(ii) "Work Product" means (a) any data, databases, materials, documentation, computer programs, inventions (whether or not\npatentable), designs, and/or works of authorship, including but not limited to, discoveries, ideas, concepts, properties, formulas, compositions,\nmethods, programs, procedures, systems, techniques, products, improvements, innovations, writings, pictures, audio, video, images of me, and\nartistic works, and (b) any subject matter protected under patent, copyright, proprietary database, trademark, trade secret, rights of publicity,\nconfidential information, or other property rights, including all worldwide rights therein, that is or was conceived, created or developed in whole\nor\nin\npart\nby\nme\nwhile\nemployed\nby\nthe\nCompany\nand\nthat\neither\n(i)\nis\ncreated\nwithin\nthe\nscope\nof\nmy\nemployment,\n(ii)\nis\nbased\non,\nresults\nfrom,\nor is suggested by any work performed within the scope of my employment and is directly or indirectly related to the business of the Company\nor\na line of business that the Company may reasonably be interested in pursuing, (iii) has been or will be paid for by the Company, or (iv) was\ncreated or improved in whole or in part by using the Company's time, resources, data, facilities, or equipment.\n3. Non-Solicitation.\n(a) During the Restricted Period, I will not, directly or indirectly, solicit, recruit or induce any Employee to (i) terminate his employment\nrelationship with the Company, or (ii) work for any other person or entity engaged in the Business.\n(b) During the Restricted Period, I will not directly or indirectly solicit any Customer of the Company for the purpose of providing any\ngoods or services competitive with the Business. The restrictions set forth in this Section apply only to Customers with whom I had Contact.\n(c) For purposes of this Agreement, the following definitions shall apply:\n(i) "Business" shall mean the business of developing, designing, and implementing computer applications that allow banks, brokerage\nfirms, and insurance companies to enable their customers to access financial information and conduct transactions over multiple delivery\nchannels.\n(ii)\n"Contact" means any interaction between a Customer and me which (i) takes place in an effort to establish,\nmaintain,\nand/or\nfurther\na business relationship on behalf of the Company and (ii) occurs during the last year of my employment with the Company (or during my\nemployment if employed less than a year).\n(iii) "Customer" means any person or entity to whom the Company has sold its products or services, or solicited to sell its products or\nservices.\n(iv) "Employee" means any person who (i) is employed by the Company at the time my employment with the Company ends, (ii) was\nemployed by the Company during the last year of my employment with the Company (or during my employment if employed less than a year),\nor (iii) is employed by the Company during the Restricted Period.\n4. Equitable Relief.\nIf I breach this Agreement, I agree that: (a) the Company would suffer irreparable harm; (b) it would be difficult to determine damages,\nand money damages alone would be an inadequate remedy for the injuries suffered by the Company; and (c) if the Company seeks injunctive\nrelief to enforce this Agreement, I will waive and will not (i) assert any defense that the Company has an adequate remedy at law with respect to\nthe breach, (ii) require that the Company submit proof of the economic value of any Trade Secret or Confidential Information, or (iii) require the\nCompany to post a bond or any other security. Nothing contained in this Agreement shall limit the Company's right to any other remedies at law\nor in equity.\n5. No Right to Continued Employment.\nI understand that this Agreement does not create a contract of employment or a contract for benefits. Except as set forth in a separate\nagreement duly authorized and executed by the Company, my employment relationship with the Company is at-will. This means that at either my\noption or the Company's option, my employment may be terminated at any time, with or without cause or notice.\n6. Attorneys' Fees\nIn the event of litigation relating to this Agreement, the Company shall, if it is the prevailing party, be entitled to recover attorneys' fees\nand costs of litigation in addition to all other remedies available at law or in equity.\n7. Waivers.\nAny waiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any\nsubsequent breach of such provision or any other provision hereof.\n8. Acknowledgment;. Severability..\nI acknowledge that the restrictions contained in this Agreement are reasonable and necessary to protect the legitimate business interests of\nthe Company, and will not impair or infringe upon my right to work or earn a living in the event my employment with the Company ends. The\nprovisions of this Agreement are severable. If any provision is determined to be invalid, illegal, or unenforceable, in whole or in part, the\nremaining provisions and any partially enforceable provisions shall remain in full force and effect.\n9. Survival of Obligations.\nI\nunderstand that I shall not have the right to assign my rights or obligations under this Agreement. My obligations under this Agreement\nshall survive the termination of my employment regardless of the manner of, or reason for, such termination.\n10. Assignment.\nThis Agreement shall be assignable to, and shall inure to the benefit of, the Company's successors and assigns, including, without\nlimitation, successors through merger, name change, consolidation, or sale of a majority of the Company's stock or assets, and shall be binding\nupon me.\n11. Governing Law.\nThe laws of the State of Delaware shall govern this Agreement. If Delaware's conflict of law rules would apply another state's laws, the\nCompany and I agree that Delaware law shall still govern.\n12. Entire Agreement.\nThis Agreement constitutes the entire agreement between the Company and me concerning the subject matter of this Agreement. This\nAgreement supersedes any prior communications, agreements or understandings, whether oral or written, between the Company and me relating\nto the subject matter of this Agreement.\n13. Consent to Jurisdiction.\nI\nagree that any claim arising out of or relating to this Agreement shall be brought in a state or federal court of competent jurisdiction in\nAtlanta, Georgia. I consent to the personal jurisdiction of the state and/or federal courts located in Georgia. I waive (a) any objection to\njurisdiction or venue, or (b) any defense claiming lack of jurisdiction or improper venue, in any action brought in such courts.\nIN WITNESS WHEREOF, the undersigned has executed this Confidentiality, Non-Disclosure and Non-Solicitation Agreement as of the\n1st day of December, 2006.\n/s/ Neil Underwood\nSignature\nName: Neil Underwood\nAddress\nAgreed to and Accepted:\nS1 CORPORATION\nBy: /s/ Johann Dreyer\nPresident and Chief Executive Officer	EX-10.19 2 g12049exv10w19.htm EX-10.19 EMPLOYMENT AGREEMENT & CONFIDENTIALITY\nAGREEMENT/ NEIL UNDERWROOD\nExhibit 10.19\nEMPLOYMENT AGREEMENT\nThis EMPLOYMENT AGREEMENT (“Agreement”) is entered into as of this 1st day of December 2006 (the “Effective Date”), by and\nbetween S1 Corporation, a Delaware corporation (the “Company”), and Neil Underwood, individual (the “Employee”).\nWHEREAS, the Company and the Employee desire to enter into this Employment Agreement to set out the terms and conditions for the\nemployment relationship of the Employee with the Company from and after the Effective Date; and\nWHEREAS, the board of directors of the Company (the “Board”) has approved and authorized the Company’s execution, delivery and\nperformance of this Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and other good and valuable consideration,\nthe receipt and sufficiency of which hereby are acknowledged, the parties hereto agree as follows:\n1. Employment Agreement. On the terms and conditions set forth in this Agreement, the Company agrees to employ the Employee and the\nEmployee agrees to be employed by the Company for the Employment Period set forth in Section 2 hereof and in the position and with the duties\nset forth in Section 3 hereof. Terms used herein with initial capitalization not otherwise defined are defined in Section 20 below.\n2. Term. The initial term of employment under this Agreement shall be for a three-year period commencing on the Effective Date (the\n“Initial Term”). The term of employment shall be automatically renewed for an additional consecutive 12-month period (the “Extended Term”)\nas of the first and every subsequent anniversary of the Effective Date, unless and until either party provides written notice to the other party in\naccordance with Section 10 hereof not less than 90 days before such anniversary date that such party is terminating the term of employment\nunder this Agreement (“Non-Renewal”), which termination shall be effective as of the end of such Initial Term or Extended Term, as the case\nmay be, or until such term of employment is otherwise sooner terminated as hereinafter set forth. Such Initial Term and all such Extended Terms\nare collectively referred to herein as the “Employment Period.” A notice of Non-Renewal given by either party to this Agreement shall not be\ndeemed a termination of the Employee’s employment for purposes of Section 9 of this Agreement unless otherwise expressly provided in such\nnotice of Non-Renewal. The Company’s obligations under Section 9 hereof shall survive the expiration or termination of the Employment\nPeriod.\n3. Position and Duties. The Employee shall initially serve as the General Manager/Vice President of the Company. The Employee\nacknowledges that the Company may, at its sole discretion, change the Employee’s title, job duties and responsibilities and reporting as the\nCompany sees fit in its sole discretion. In any role in which the Employee is employed with the Company, the Employee shall render executive,\npolicy and other management services to the Company of the type customarily performed by persons serving in such capacity. The Employee\nshall initially report to the President of the Enterprise Business Unit of the Company unless otherwise determined by the Company. The\nEmployee shall also perform such other duties with the Company and with any Subsidiary as the CEO of the Company or the Board may from\ntime to time reasonably determine and assign to the Employee. The Employee shall devote the Employee’s reasonable best efforts and\nsubstantially full business time to the performance of the Employee’s duties and the advancement of the business and affairs of the Company.\nThe Employee agrees that during the Employment Period he or she will not be entitled to additional compensation for serving as a member of the\nboard of directors of the Company or any Subsidiary if he or she is elected to serve thereon.\n4. Place of Performance. In connection with the Employee’s employment by the Company, the Employee shall be based at the offices of\nthe Company in Atlanta, Georgia, except as otherwise agreed by the Employee and the Company and except for reasonable travel on Company\nbusiness.\n5. Compensation and Benefits; Stock Options.\n(a) Base Salary. During the Employment Period, the Company shall pay to the Employee an annual base salary (the “Base Salary”) at\nthe rate of $200,000.00 per year. The Base Salary will be reviewed annually and may be increased at the discretion of the Company. The Base\nSalary shall be payable semi-monthly or in such other installments as shall be consistent with the Company’s payroll procedures.\n(b) Annual Bonus. The Employee will be eligible to receive an annual bonus, payable no later than the end of the first fiscal quarter of\neach calendar year during the Employment Period (pro-rated for any period that is less than 12 months) of up to $200,000.00 for such calendar\nyear, based on the attainment of specific Company and individual performance targets as may be assigned by the Company annually.\n(c) Benefits. During the Employment Period, the Employee will be entitled to participate in any fringe benefit welfare benefit plan of\nthe Company (on the same terms as provided to other employees of the Company), including any plan providing for employee stock purchases,\npension or retirement income, retirement savings, employee stock ownership, deferred compensation or medical, prescription, dental, disability,\nemployee life, group life, accidental death or travel accident insurance benefits that the Company may adopt for the benefit of employees, in\naccordance with the terms of such plan. Nothing in this Agreement shall restrict the right of the Company to change insurance carriers and to\nadopt, amend, terminate or modify employee benefit plans and arrangements at any time and without the consent of the Employee.\n(d) Stock Options. The Company may grant options to purchase the stock of the Company to the Employee in accordance with the\nterms of the Company’s stock option plans.\n(e) Vacation; Holidays. The Employee shall be entitled to all public holidays observed by the Company and to annual vacation for such\nnumber of days as may be determined by the Company, and otherwise in accordance with the applicable vacation policies for senior executives\nof the Company, which shall be taken at a reasonable time or times.\n(f) Withholding Taxes and Other Deductions. To the extent required by law, the Company shall withhold from any payments due\nEmployee under this Agreement any applicable federal, state or local taxes and such other deductions as are prescribed by law or Company\npolicy or are otherwise authorized by the Employee.\n6. Expenses. The Employee is expected and is authorized to incur reasonable expenses in the performance of his duties hereunder. The\nCompany shall reimburse the Employee for all such expenses in accordance with the Company’s expense reimbursement policy, upon periodic\npresentation by the Employee of an itemized account, including reasonable substantiation, of such expenses.\n7. Confidentiality, Non-Disclosure and Non-Competition Agreement.\nConcurrently with the execution of this Agreement, the parties are entering into an Employee Covenants Agreement (the “Related\nAgreement”).\n8. Termination of Employment.\n(a) Permitted Terminations. The Employee’s employment hereunder may be terminated during the Employment Period under the\nfollowing circumstances:\ni. Death. The Employee’s employment hereunder shall terminate upon the Employee’s death;\nii. By the Company. The Company may terminate the Employee’s employment:\na.\nIf the Employee shall have been substantially unable to perform the Employee’s material duties hereunder by reason of illness,\nphysical or mental disability or other similar incapacity, which inability shall continue for three consecutive\nmonths (provided, that until such termination, the Employee shall continue to receive his compensation and benefits hereunder,\nreduced by any benefits payable to him or her under any disability insurance policy or plan applicable to him or her); or\nb. For Cause;\niii. By the Employee. The Employee may terminate his employment for any reason or for no reason.\n(b) Termination. Any termination of the Employee’s employment by the Company or the Employee (other than because of the\nEmployee’s death) shall be communicated by written Notice of Termination to the other party hereto in accordance with Section 10 hereof. For\npurposes of this Agreement, a “Notice of Termination” shall mean a notice which shall indicate the specific termination provision in this\nAgreement relied upon, if any, and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of\nthe Employee’s employment under the provision so indicated. Termination of the Employee’s employment shall take effect on the Date of\nTermination.\n9. Compensation Upon Termination or Change in Control.\n(a) Death. If the Employee’s employment is terminated during the Employment Period as a result of the Employee’s death, the\nCompany shall pay to the Employee’s estate, or as may be directed by the legal representatives of such estate, the Employee’s Base Salary due\nthrough the Date of Termination, a pro rata portion of the annual bonus that would have been payable for the calendar year of termination if the\nEmployee’s employment had not terminated (calculated based upon actual results through the Date of Termination and based upon budget for the\nremainder of the period and pro rated for the portion of the year during which the Employee was employed) and all other unpaid amounts, if any,\nto which the Employee is entitled as of the Date of Termination, at the time such payments are due, and the Company shall have no further\nobligation to the Employee under this Agreement.\n(b) Disability. If the Company terminates the Employee’s employment during the Employment Period because of the Employee’s\ndisability pursuant to Section 8(a)(ii)(A) hereof, the Company shall pay the Employee the Employee’s Base Salary due through the Date of\nTermination, a pro rata portion of the annual bonus that would have been payable for the calendar year of termination if the Employee’s\nemployment had not terminated (calculated based upon actual results through the Date of Termination and based upon budget for the remainder\nof the period and pro rated for the portion of the year during which the Employee was employed) and all other unpaid amounts, if any, to which\nthe Employee is entitled as of the Date of Termination, at the time such payments are due, and the Company shall have no further obligations to\nthe Employee under this Agreement; provided, that payments so made to the Employee with respect to any period that the Employee is\nsubstantially unable to perform the Employee’s material duties hereunder by reason of illness, physical or mental illness or other similar\nincapacity shall be reduced by the sum of the amounts, if any, payable to the Employee by reason of such disability, at or prior to the time of any\nsuch payment, under any disability insurance policy or benefit plan and which amounts have not previously been applied to reduce any such\npayment.\n(c) Termination by the Company for Cause or by the Employee without Good Reason. If, during the Employment Period, the Company\nterminates the Employee’s employment for Cause pursuant to Section 8(a)(ii)(B) hereof or the Employee terminates his employment without\nGood Reason, the Company shall pay the Employee the Employee’s Base Salary due through the Date of Termination, and all other unpaid\namounts, if any, to which the Employee is entitled as of the Date of Termination, at the time such payments are due, and the Company shall have\nno further obligations to the Employee under this Agreement. In the event that the Company intends to terminate the Employee for Cause, the\nEmployee shall have a reasonable opportunity, together with his counsel, to be heard before the Board of Directors of the Company before such\ntermination.\n(d) Termination by the Company without Cause or by the Employee with Good Reason. Subject to Section 9(e) below, if the Company\nterminates the Employee’s employment during the Employment Period other than for Cause, disability or death pursuant to Section 8(a)(i) or\n(ii) hereof or the Employee terminates employment hereunder with Good Reason, the Company shall (i) pay the Employee the\nEmployee’s Base Salary due through the Date of Termination, a pro rata portion of the annual bonus that would have been payable for the\ncalendar year of termination if the Employee’s employment had not terminated (calculated based upon actual results through the Date of\nTermination and based upon budget for the remainder of the period and pro rated for the portion of the year during which the Employee was\nemployed) and all other unpaid amounts, if any, to which the Employee is entitled as of the Date of Termination, at the time such payments are\ndue, (ii) pay, during the 12-month period commencing on the Date of Termination (the “Severance Period”), to the Employee an aggregate\namount equal to Employee’s Base Salary, payable in equal installments on the Company’s regular salary payment dates, (iii) shall continue in\neffect during the Severance Period the employee benefits provided to the Employee under Section 5(c) hereof immediately before the Date of\nTermination (except to that, to the extent such benefits are provided pursuant to a qualified plan under Section 401(a) of the Code, the Company\nshall provide a substantially equivalent nonqualified benefit) and (iv) if such termination occurs within two years after a Change in Control (or\nbefore a Change in Control has occurred, but after the Company has commenced negotiations of a transaction that results in a Change in\nControl), shall cause all of the outstanding options then held by the Employee to purchase stock of the Company to be fully vested and\nexercisable; provided, notwithstanding anything herein to the contrary, the provision for acceleration of options described in this paragraph will\nnot apply to any options, restricted stock, SAR or other awards approved by the S1 Board of Directors and/or granted to Employee on or about\nNovember 1, 2006; provided further, that no notice of Non-Renewal shall be deemed to be a termination of the Employee’s employment for such\npurposes unless otherwise expressly provided in such notice of Non-Renewal. As a condition precedent to the receipt of the foregoing payments\nand benefits, if requested by the Company, the Employee shall enter into an agreement with the Company confirming the Company’s right to\ncontinued performance by the Employee of the Employee’s obligations under the Related Agreement during the period following termination of\nthe Employee’s employment.\n(e) Limitation on Parachute Payments. Notwithstanding any other provision of this Agreement or of any other agreement, contract, or\nunderstanding heretofore or hereafter entered into by the Employee with the Company or any subsidiary or affiliate, except an agreement,\ncontract, or understanding hereafter entered into that expressly modifies or excludes application of this paragraph (an “Other Agreement”), and\nnotwithstanding any formal or informal plan or other arrangement for the direct or indirect provision of compensation to the Employee\n(including groups or classes of participants or beneficiaries of which the Employee is a member), whether or not such compensation is deferred,\nis in cash, or is in the form of a benefit to or for the Employee (a “Benefit Arrangement”), if the Employee is a “disqualified individual,” as\ndefined in Section 280G(c) of the Code, no payment or benefit shall be made or provided to the Employee or become vested, exercisable or\npayable, as applicable, (i) to the extent that such payment, right to exercise, vesting, or other benefit, taking into account all other payments,\nrights, or benefits to or for the Employee, or becoming vested, exercisable or payable, as the case may be, under this Agreement, all Other\nAgreements and all Benefit Arrangements, would cause any such payment, right to exercise, vesting or other benefit to which the Employee is or\nwould be entitled under this Agreement to be considered a “parachute payment” within the meaning of Section 280G(b)(2) of the Code as then in\neffect (a “Parachute Payment”) and (ii) if, as a result of receiving a Parachute Payment, the aggregate after-tax amounts received by the\nEmployee under this Agreement, all Other Agreements, and all Benefit Arrangements would be less than the maximum after-tax amount that\ncould be received by the Employee without causing any such payment, right to exercise, vesting or other benefit to be considered a Parachute\nPayment. In the event that the receipt of any such payment, right to exercise, vesting, or other benefit under this Agreement, in conjunction with\nall other rights, payments, or benefits to or for the Employee under any Other Agreement or any Benefit Arrangement would cause the Employee\nto be considered to have received a Parachute Payment under this Agreement that would have the effect of decreasing the after-tax amount\nreceived by the Employee as described in clause (ii) of the preceding sentence, then the Employee shall have the right, in the Employee’s sole\ndiscretion, to designate those rights, payments or benefits (or the vesting or exercisability thereof) under this Agreement, any Other Agreements\nand any Benefit Arrangements that should be reduced or eliminated so as to avoid having the right, payment or benefit to the Employee (or the\nvesting or exercisability thereof) under this Agreement be deemed to be a Parachute Payment. All determinations required to be made under this\nSection 9(e), including whether and when a reduction in rights, payments or benefits (or the vesting or exercisability thereof) is required and the\namount of such reduction and the assumptions to be utilized in arriving at such determination, shall be made by PricewaterhouseCoopers LLP or\nsuch other certified public accounting firm reasonably acceptable to the Company as may be designated by the Employee in writing (the\n“Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Employee within 15 business days of the\nreceipt of notice from the Employee or the Company. In the event that the Accounting Firm is serving as accountant or auditor for the Company\nor any individual, entity or group effecting a change in the ownership or effective control of the Company (within the meaning of Section 280G\nof the Code), the Employee shall appoint another nationally recognized\naccounting firm that is reasonably acceptable to the Company to make the determinations required hereunder (which accounting firm shall then\nbe referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any\ndetermination by the Accounting Firm shall be binding upon the Company and the Employee.\n(f) Liquidated Damages. The parties acknowledge and agree that damages which will result to the Employee for termination by the\nCompany without Cause or other breach of this Agreement by the Company shall be extremely difficult or impossible to establish or prove, and\nagree that the amounts payable to the Employee under Section 9(d) hereof (the “Severance Payments”) shall constitute liquidated damages for\nany breach of this Agreement by the Company through the Date of Termination. The Employee agrees that, except for such other payments and\nbenefits to which the Employee may be entitled as expressly provided by the terms of this Agreement or any applicable benefit plan, such\nliquidated damages shall be in lieu of all other claims that the Employee may make by reason of termination of his employment or any such\nbreach of this Agreement and that, as a condition to receiving the Severance Payments, the Employee will execute a release of claims in a form\nreasonably satisfactory to the Company.\n10. Notices. All notices, demands, requests, or other communications which may be or are required to be given, served, or sent by any\nparty to any other party pursuant to this Agreement shall be in writing and shall be hand delivered, sent by overnight courier or mailed by first-\nclass, registered or certified mail, return receipt requested, postage prepaid, or transmitted by telegram, telecopy or telex, addressed as follows:\n(i) If to the Company:\nS1 Corporation\n3500 Lenox Road\nSuite 200\nAtlanta, GA 30326\nFax: 404 923 6717\nAttn: Chief Legal Officer\nwith a copy (which shall not constitute notice) to:\nStuart G. Stein\nHogan & Hartson, L.L .P.\n555 13th Street, N.W.\nWashington, D.C. 20004-1190\nFax: 202/637-5910\n(ii) If to the Employee:\nEach party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so\ngiven, served or sent. Each notice, demand, request, or communication which shall be hand delivered, sent, mailed or telecopied in the manner\ndescribed above, or which shall be delivered to a telegraph company, shall be deemed sufficiently given, served, sent, received or delivered for\nall purposes at such time as it is delivered to the addressee (with the return receipt, the delivery receipt, or (with respect to a telecopy) the\nanswerback being deemed conclusive, but not exclusive, evidence of such delivery) or at such time as delivery is refused by the addressee upon\npresentation.\n11. Severability. The invalidity or unenforceability of any one or more provisions of this Agreement shall not affect the validity or\nenforceability of the other provisions of this Agreement, which shall remain in full force and effect.\n12. Survival. It is the express intention and agreement of the parties hereto that the provisions of Sections 9, 10, 11, 13, 17 and 20 hereof\nand this Section 12 shall survive the termination of employment of the Employee. In addition, all obligations of the Company to make payments\nhereunder shall survive any termination of this Agreement on the terms and conditions set forth herein.\n13. Assignment. The rights and obligations of the parties to this Agreement shall not be assignable or delegable, except that (i) in the event\nof the Employee’s death, the personal representative or legatees or distributees of the Employee’s estate, as the case may be, shall have the right\nto receive any amount owing and unpaid to the Employee hereunder and (ii) the rights and obligations of the Company hereunder shall be\nassignable and delegable in connection with any subsequent merger, consolidation, sale of all or substantially all of the assets or stock of the\nCompany or similar transaction involving the Company or a successor corporation. The Company shall require any successor to the Company to\nexpressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to\nperform it if no such succession had taken place.\n14. Binding Effect. Subject to any provisions hereof restricting assignment, this Agreement shall be binding upon the parties hereto and\nshall inure to the benefit of the parties and their respective heirs, devisees, executors, administrators, legal representatives, successors and\nassigns.\n15. Amendment; Waiver. This Agreement shall not be amended, altered or modified except by an instrument in writing duly executed by\nthe parties hereto. Neither the waiver by either of the parties hereto of a breach of or a default under any of the provisions of this Agreement, nor\nthe failure of either of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or\nprivilege hereunder, shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any such\nprovisions, rights or privileges hereunder.\n16. Headings. Section and subsection headings contained in this Agreement are inserted for convenience of reference only, shall not be\ndeemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the\nprovisions hereof.\n17. Governing Law. This Agreement, the rights and obligations of the parties hereto, and any claims or disputes relating thereto, shall be\ngoverned by and construed in accordance with the laws of the State of Delaware (but not including any choice of law rule thereof that would\ncause the laws of another jurisdiction to apply).\n18. Entire Agreement. This Agreement constitutes the entire agreement between the parties respecting the employment of the Employee,\nthere being no representations, warranties or commitments except as set forth herein.\n19. Counterparts. This Agreement may be executed in two counterparts, each of which shall be an original and all of which shall be\ndeemed to constitute one and the same instrument.\n20. Definitions.\n“Accounting Firm” is defined in Section 9(e) above.\n“Agreement” means this Employment Agreement.\n“Base Salary” is defined in Section 5(a) above.\n“Benefit Arrangement” is defined in Section 9(e) above.\n“Board” means the board of directors of the Company.\n“Cause” means (i) the indictment by a grand jury or conviction of a felony or a crime involving moral turpitude (excluding a traffic\nviolation not involving any period of incarceration) or the willful commission of any other act or omission involving dishonesty or fraud with\nrespect to, and materially adversely\naffecting the business affairs of, the Company or any of its Subsidiaries or any of their customers or suppliers, (ii) conduct tending to bring the\nCompany or any of its Subsidiaries into public disgrace or disrepute that is determined by the Company to cause or be reasonably likely to cause\nsubstantial injury to the business and operations of the Company or such Subsidiary, (iii) substantial and repeated failure to perform duties,\nincluding but not limited to achieving quarterly goals, of the office held by the Employee as reasonably directed by the Company (other than any\nsuch failure resulting from the Employee’s incapacity due to injury or illness), and such failure is not cured within 30 days after the Employee\nreceives written notice thereof from the Company that specifically identifies the manner in which the Company believes the Employee has not\nsubstantially performed his duties, (iv) gross negligence or willful misconduct with respect to the Company or any of its Subsidiaries that causes\nsubstantial and material injury to the business and operations of the Company or such Subsidiary or (v) any material breach of the Related\nAgreement. For purposes of this provision, no act or failure to act, on the part of the Employee, shall be considered “willful” unless it is done, or\nomitted to be done, by the Employee in bad faith or without reasonable belief that the Employee’s action or omission was in the best interests of\nthe Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or based upon advice of\ncounsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Employee in good faith and in the best\ninterests of the Company.\n“Change in Control” means the earliest to occur of the following: (i) any person (other than a corporation (a “Holding Company”) all of\nthe common stock of which is owned, immediately after the transaction, by persons who owned more than 50 percent of the voting shares of the\nCompany immediately before the transaction) becomes the beneficial owner of 50 percent or more of the total number of voting shares of the\nCompany; (ii) any person (other than the persons named as proxies solicited on behalf of the Board) holds revocable or irrevocable proxies, as to\nthe election or removal of two or more directors of the Company, for more than 50 percent of the total number of voting shares of the Company;\n(iii) any person (other than a Holding Company) has commenced a tender or exchange offer, or entered into an agreement or received an option,\nto acquire beneficial ownership of more than 50 percent of the total number of voting shares of the Company; (iv) there is a sale or other transfer\nof all or substantially all of the assets of the Company other than to a Holding Company or a corporation controlled by the Company or (v) as the\nresult of, or in connection with, any cash tender or exchange offer, merger, or other business combination, sale of assets or contested election, or\nany combination of the foregoing transactions, the persons who were directors of the Company before such transaction shall cease to constitute at\nleast a majority of the Board or any successor corporation. In the event that the Company (or any successor entity) becomes a subsidiary of a\nHolding Company, references to the Company in the preceding sentence shall be deemed to be references to the Holding Company.\nNotwithstanding the foregoing, a “Change in Control” will not be deemed to have occurred under clauses (ii) or (iii) above if within 30 days of\nsuch action, the Board (by a two-thirds affirmative vote of the directors in office before such action occurred) makes a determination that such\naction does not and is not likely to constitute a change in control of the Company. For purposes of this definition, a “person” includes an\nindividual, corporation, partnership, trust, association, joint venture, pool, syndicate, unincorporated organization, joint-stock company, or similar\norganization or group acting in concert. A person for these purposes shall be deemed to be a beneficial owner as that term is used in Rule 13d-3\nunder the Securities Exchange Act of 1934, as amended.\n“Code” means the Internal Revenue Code of 1986, as amended.\n“Company” means S1 Corporation and its successors and assigns.\n“Date of Termination” means (i) if the Employee’s employment is terminated by the Employee’s death, the date of the Employee’s\ndeath; (ii) if the Employee’s employment is terminated because of the Employee’s disability pursuant to Section 8(a)(ii)(A) hereof, 30 days after\nNotice of Termination, provided that the Employee shall not have returned to the performance of the Employee’s duties on a full-time basis\nduring such 30-day period; (iii) if the Employee’s employment is terminated by the Company for Cause pursuant to Section 8(a)(ii)(B) hereof or\nby the Employee pursuant to Section 8(a)(iii) hereof, the date specified in the Notice of Termination; or (iv) if the Employee’s employment is\nterminated during the Employment Period other than pursuant to Section 8(a), the date on which Notice of Termination is given.\n“Effective Date” means December 1, 2006.\n“Employment Period” is defined in Section 2 above.\n“Employee” means Neil Underwood\n“Good Reason” means (i) the Company’s failure to perform or observe any of the material terms or provisions of this Agreement, and\nthe continued failure of the Company to cure such default within 30 days after written demand for performance has been given to the Company\nby the Employee, which demand shall describe specifically the nature of such alleged failure to perform or observe such material terms or\nprovisions; (ii) a change in the Employee’s reporting, duties and/or job title where there is no reduction in the Employee’s Base Salary or Annual\nBonus potential shall not be determined to be Good Reason under this Agreement; (iii) any requirement by the Company without the written\nconsent of the Employee that the Employee relocate to a place more than 50 miles from Atlanta, Georgia to perform his duties hereunder; or\n(iv) the failure of the Company to obtain the assumption of the Company’s obligations under this Agreement by a successor as contemplated by\nSection 13 of this Agreement.\n“Initial Term” is defined in Section 2 above.\n“Non-Renewal” is defined in Section 2 above.\n“Notice of Termination” is defined in Section 8(b) above.\n“Other Agreement” is defined in Section 9(e) above.\n“Parachute Payment” is defined in Section 9(e) above.\n“Related Agreement” is defined in Section 7 above.\n“Severance Period” is defined in Section 9(d) above.\n“Subsidiary” means any corporation of which the Company owns securities having a majority of the ordinary voting power in electing\nthe board of directors directly or through one or more subsidiaries and any partnership, limited liability company or other entity in which the\nCompany or any subsidiary owns a controlling interest.\nIN WITNESS WHEREOF, the undersigned have duly executed and delivered this Agreement, or have caused this Agreement to be duly\nexecuted and delivered on their behalf, as of the Effective Date.\nS1 CORPORATION\nBy: /s/ Johann Dreyer\nPresident and Chief Executive Officer\nTHE EMPLOYEE:\n/s/ Neil Underwood\nCONFIDENTIALITY, NON-DISCLOSURE\nAND NON-SOLICITATION AGREEMENT\nIn consideration and as a condition of my employment by S1 Corporation, a Delaware corporation (the “Company”, which term shall also\ninclude any subsidiaries and divisions of S1 Corporation), I hereby agree with the Company as follows:\n1. Nondisclosure and Use of Proprietary Information.\n(a) I represent and warrant that: (i) I am not subject to any legal or contractual duty or agreement that would prevent me from performing\nmy duties for the Company or complying with this Agreement, and I am not in breach of any legal or contractual duty or agreement, including\nany agreement concerning trade secrets or confidential information owned by any other party.\n(b) I will not: use, disclose, or reverse engineer the Trade Secrets or the Confidential Information, except as authorized in writing by the\nCompany; (ii) during my employment with the Company, use, disclose, or reverse engineer (A) any confidential information or trade secrets of\nany former employer or third party, or (B) any works of authorship developed in whole or in part by me during any former employment or for\nany other party, unless authorized in writing by the former employer or third party; or (iii) upon my resignation or termination, (A) retain Trade\nSecrets or Confidential Information, including any copies existing in any form (including electronic form) which are in my possession or control,\nor (B) destroy, delete, or alter the Trade Secrets or Confidential Information without the Company’s written consent.\n(c) The obligations under this Agreement shall (i) with regard to the Trade Secrets, remain in effect as long as the information constitutes a\ntrade secret under applicable law; and (ii) with regard to the Confidential Information, remain in effect during the Restricted Period.\n(d) The confidentiality, property, and proprietary rights protections available in this Agreement are in addition to, and not exclusive of, any\nand all other rights to which the Company is entitled under federal and state law, including, but not limited to, rights provided under copyright\nlaws, trade secret and confidential information laws, and laws concerning fiduciary duties.\n(e) For purposes of this Agreement, the following definitions shall apply:\n(i) “Confidential Information” means (a) information of the Company, to the extent not considered a Trade Secret under applicable law,\nthat (i) relates to the business of the Company, (ii) possesses an element of value to the Company, (iii) is not generally known to the Company’s\ncompetitors, and (iv) would damage the Company if disclosed, and (b) information of any third party provided to the Company which the\nCompany is obligated to treat as confidential. Confidential Information includes, but is not limited to, (i) future business plans, (ii) the\ncomposition, description, schematic or design of products, future products or equipment of the Company, (iii) communication systems, audio\nsystems, system designs and related documentation, (iv) advertising or marketing plans, (v) information regarding independent contractors,\nemployees, clients and customers of the Company, and (vi) information concerning the Company’s financial structure and methods and\nprocedures of operation. Confidential Information shall not include any information that (a) is or becomes generally available to the public other\nthan as a result of an unauthorized disclosure, (b) has been independently developed and disclosed by others without violating this Agreement or\nthe legal rights of any party, or (c) otherwise enters the public domain through lawful means.\n(ii) “Restricted Period” means the time period during my employment with the Company, and for one (1) year after my employment\nwith the Company ends.\n(iii) “Trade Secrets” means information of the Company, and its licensors, suppliers, clients and customers, without regard to form,\nincluding, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a\ndrawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which is not commonly\nknown\nby or available to the public and which information (i) derives economic value, actual or potential, from not being generally known to, and not\nbeing readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of\nefforts that are reasonable under the circumstances to maintain its secrecy.\n2. Assignment of Developments.\n(a) I understand that my employment duties may include inventing in areas directly or indirectly related to the business of the Company or\nto a line of business that the Company may reasonably be interested in pursuing. All Work Product shall constitute work made for hire. If (i) any\nof the Work Product may not be considered work made for hire, or (ii) ownership of all right, title, and interest in and to the Work Product will\nnot vest exclusively in the Company, then, without further consideration, I assign all presently-existing Work Product to the Company, and agree\nto assign, and automatically assign, all future Work Product to the Company.\n(b) The Company will have the right to obtain and hold in its own name copyrights, patents, design registrations and continuations thereof,\nproprietary database rights, trademarks, rights of publicity, and any other protection available in the Work Product. At the Company’s request, I\nagree to perform, during or after my employment with the Company, any acts to transfer, perfect and defend the Company’s ownership of the\nWork Product, including, but not limited to: (i) executing all documents (including a formal assignment to the Company) for filing an application\nor registration for protection of the Work Product (an “Application”), (ii) explaining the nature of the Work Product to persons designated by the\nCompany, (iii) reviewing Applications and other related papers, or (iv) providing any other assistance reasonably required for the orderly\nprosecution of Applications. I agree to provide the Company with a written description of any Work Product in which I am involved (solely or\njointly with others) and the circumstances surrounding the creation of such Work Product.\n(c) During my employment and after my employment with the Company ends, I grant to the Company an irrevocable, nonexclusive,\nworldwide, royalty-free license to: (i) make, use, sell, copy, perform, display, distribute, or otherwise utilize copies of the Licensed Materials,\n(ii) prepare, use and distribute derivative works based upon the Licensed Materials, and (iii) authorize others to do the same. I will notify the\nCompany in writing of any Licensed Materials I deliver to the Company.\n(d) For purposes of this Agreement, the following definitions shall apply:\n(i) “Licensed Materials” means any materials that I utilize for the benefit of the Company, or deliver to the Company or the Company’s\ncustomers, which (i) do not constitute Work Product, (ii) are created by me or of which I am otherwise in lawful possession, and (iii) I may\nlawfully utilize for the benefit of, or distribute to, the Company or the Company’s customers.\n(ii) “Work Product” means (a) any data, databases, materials, documentation, computer programs, inventions (whether or not\npatentable), designs, and/or works of authorship, including but not limited to, discoveries, ideas, concepts, properties, formulas, compositions,\nmethods, programs, procedures, systems, techniques, products, improvements, innovations, writings, pictures, audio, video, images of me, and\nartistic works, and (b) any subject matter protected under patent, copyright, proprietary database, trademark, trade secret, rights of publicity,\nconfidential information, or other property rights, including all worldwide rights therein, that is or was conceived, created or developed in whole\nor in part by me while employed by the Company and that either (i) is created within the scope of my employment, (ii) is based on, results from,\nor is suggested by any work performed within the scope of my employment and is directly or indirectly related to the business of the Company or\na line of business that the Company may reasonably be interested in pursuing, (iii) has been or will be paid for by the Company, or (iv) was\ncreated or improved in whole or in part by using the Company’s time, resources, data, facilities, or equipment.\n3. Non-Solicitation.\n(a) During the Restricted Period, I will not, directly or indirectly, solicit, recruit or induce any Employee to (i) terminate his employment\nrelationship with the Company, or (ii) work for any other person or entity engaged in the Business.\n(b) During the Restricted Period, I will not directly or indirectly solicit any Customer of the Company for the purpose of providing any\ngoods or services competitive with the Business. The restrictions set forth in this Section apply only to Customers with whom I had Contact.\n(c) For purposes of this Agreement, the following definitions shall apply:\n(i) “Business” shall mean the business of developing, designing, and implementing computer applications that allow banks, brokerage\nfirms, and insurance companies to enable their customers to access financial information and conduct transactions over multiple delivery\nchannels.\n(ii) “Contact” means any interaction between a Customer and me which (i) takes place in an effort to establish, maintain, and/or further\na business relationship on behalf of the Company and (ii) occurs during the last year of my employment with the Company (or during my\nemployment if employed less than a year).\n(iii) “Customer” means any person or entity to whom the Company has sold its products or services, or solicited to sell its products or\nservices.\n(iv) “Employee” means any person who (i) is employed by the Company at the time my employment with the Company ends, (ii) was\nemployed by the Company during the last year of my employment with the Company (or during my employment if employed less than a year),\nor (iii) is employed by the Company during the Restricted Period.\n4. Equitable Relief.\nIf I breach this Agreement, I agree that: (a) the Company would suffer irreparable harm; (b) it would be difficult to determine damages,\nand money damages alone would be an inadequate remedy for the injuries suffered by the Company; and (c) if the Company seeks injunctive\nrelief to enforce this Agreement, I will waive and will not (i) assert any defense that the Company has an adequate remedy at law with respect to\nthe breach, (ii) require that the Company submit proof of the economic value of any Trade Secret or Confidential Information, or (iii) require the\nCompany to post a bond or any other security. Nothing contained in this Agreement shall limit the Company’s right to any other remedies at law\nor in equity.\n5. No Right to Continued Employment.\nI understand that this Agreement does not create a contract of employment or a contract for benefits. Except as set forth in a separate\nagreement duly authorized and executed by the Company, my employment relationship with the Company is at-will. This means that at either my\noption or the Company’s option, my employment may be terminated at any time, with or without cause or notice.\n6. Attorneys’ Fees\nIn the event of litigation relating to this Agreement, the Company shall, if it is the prevailing party, be entitled to recover attorneys’ fees\nand costs of litigation in addition to all other remedies available at law or in equity.\n7. Waivers.\nAny waiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any\nsubsequent breach of such provision or any other provision hereof.\n8. Acknowledgment; Severability.\nI acknowledge that the restrictions contained in this Agreement are reasonable and necessary to protect the legitimate business interests of\nthe Company, and will not impair or infringe upon my right to work or earn a living in the event my employment with the Company ends. The\nprovisions of this Agreement are severable. If any provision is determined to be invalid, illegal, or unenforceable, in whole or in part, the\nremaining provisions and any partially enforceable provisions shall remain in full force and effect.\n9. Survival of Obligations.\nI understand that I shall not have the right to assign my rights or obligations under this Agreement. My obligations under this Agreement\nshall survive the termination of my employment regardless of the manner of, or reason for, such termination.\n10. Assignment.\nThis Agreement shall be assignable to, and shall inure to the benefit of, the Company’s successors and assigns, including, without\nlimitation, successors through merger, name change, consolidation, or sale of a majority of the Company’s stock or assets, and shall be binding\nupon me.\n11. Governing Law.\nThe laws of the State of Delaware shall govern this Agreement. If Delaware’s conflict of law rules would apply another state’s laws, the\nCompany and I agree that Delaware law shall still govern.\n12. Entire Agreement.\nThis Agreement constitutes the entire agreement between the Company and me concerning the subject matter of this Agreement. This\nAgreement supersedes any prior communications, agreements or understandings, whether oral or written, between the Company and me relating\nto the subject matter of this Agreement.\n13. Consent to Jurisdiction.\nI agree that any claim arising out of or relating to this Agreement shall be brought in a state or federal court of competent jurisdiction in\nAtlanta, Georgia. I consent to the personal jurisdiction of the state and/or federal courts located in Georgia. I waive (a) any objection to\njurisdiction or venue, or (b) any defense claiming lack of jurisdiction or improper venue, in any action brought in such courts.\nIN WITNESS WHEREOF, the undersigned has executed this Confidentiality, Non-Disclosure and Non-Solicitation Agreement as of the\n1st day of December, 2006.\n/s/ Neil Underwood\nSignature\nName: Neil Underwood\nAddress\nAgreed to and Accepted:\nS1 CORPORATION\nBy: /s/ Johann Dreyer\nPresident and Chief Executive Officer
+fa68f25f20889428cccedbcb6e280281.pdf	effective_date jurisdiction party term	lPage7\nAppendix A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) dated as of September 10, 2008 is entered in by and between Apollo Medical Holdings,\nInc. (the “Company”) and Noel DeWinter (the “Employee”), and sets forth the terms and conditions on which Company is willing to disclose\ncertain material non-public information about the Company.\n1.\nPurpose. In connection with his retention as a Employee to the Company pursuant to an agreement dated as of even date (the\n“Employee Agreement”), the Company may disclose to the Employee certain confidential technical and business information which the\nCompany requires the Employee to treat as confidential.\n2.\nDefinition. “Confidential Information” means any information disclosed to the Employee by the Company, either directly or\nindirectly in writing, orally or by inspection of tangible objects, including without limitation documents, prototypes and forecasted financial\ninformation. Confidential Information may also include information disclosed to the Company by third parties. Confidential Information shall\nnot, however, include any information which the Employee can establish by written documentation (i) was publicly known and made generally\navailable in the public domain prior to the time of disclosure to the Employee by the Company; (ii) becomes publicly known and made generally\navailable after disclosure to the Employee by the Company through no action or inaction of the Employee; (iii) is in the possession of the\nEmployee, without confidentiality restrictions, at the time of disclosure by the Company as shown by the Employee's files and records\nimmediately prior to the time of disclosure; (iv) is developed independently of the Confidential Information, as shown by written records\nprepared contemporaneously with such independent development; or (v) is disclosed pursuant to the requirement of a United States government\nagency or judicial body, provided that the Employee shall provide reasonable advice notice thereof to enable the Company to seek a protective\norder or otherwise prevent such disclosure.\n3.\nNon-use and Non-disclosure. The Employee agrees not to use any Confidential Information for any purpose except within the\nproper scope of his duties pursuant to the Employment Agreement. The Employee agrees not to disclose any Confidential Information to third\nparties, except to those individuals who, with the prior written consent of the Company, are designated as authorized to receive such Confidential\nInformation in order for the Employee to perform his duties and obligation sunder the Employment Agreement. The Employee agrees that each\nthird party receiving any Confidential Information will enter into a separate Non-Disclosure Agreement with the Company.\n4.\nMaintenance of Confidentiality. The Employee agrees that it shall take all commercially reasonable measures to protect the\nsecrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Employee shall take at\nleast those measures that the Employee takes to protect its own confidential information of a similar nature and shall have its employees or\nadvisors who have access to Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the\nprovisions hereof, prior to any disclosure of Confidential Information to such employees. The Employee shall immediately notify the Company\nin the event of any unauthorized use or disclosure of any Confidential Information.\nlPage8\n5.\nNo Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. COMPANY MAKES NO WARRANTIES,\nEXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n6.\nReturn of Materials. All documents and other tangible objects containing or representing Confidential Information which are\nin the possession of the Employee shall be and remain the property of the Company and shall be promptly returned to the Company upon request\nfor any reason or for no reason.\n7.\nWork Made for Hire.\n(a)\nEmployee and/or designates of the Employee shall promptly and fully inform the Company of, and disclose to the Company ,\nany and all ideas, processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, fictitious business\nnames, technology, patents, know-how, trade secrets, computer programs, original works of authorship, formulae, concepts, themes, inventions,\ndesigns, creations, new works, derivative works and discoveries, and all applications, improvements, rights and claims related to any the\nforegoing, and all other intellectual property, proprietary rights and work product, whether or not patentable or copyrightable, registered or\nunregistered or domestic or foreign, and whether or not relating to a published work, that Employee develops, makes, creates, conceives or\nreduces to practice during the term of the Employment Agreement, whether alone or in collaboration with others (collectively, “Invention\nIdeas”). Employee hereby assigns to the Company exclusively in perpetuity throughout the world all right, title and interest (choate or inchoate)\nin (i) the Invention Ideas, (ii) all precursors, portions and work in progress with respect thereto and all inventions, works of authorship, mask\nworks, technology, information, know-how, materials and tools relating thereto or to the development, support or maintenance thereof and (iii) all\ncopyrights, patent rights, trade secret rights, trademark rights, mask works rights, sui generis database rights and all other intellectual and\nindustrial property rights of any sort and all business, contract rights, causes of action, and goodwill in, incorporated or embodied in, used to\ndevelop, or related to any of the foregoing (collectively "Intellectual Property").. All copyrightable Invention Ideas are intended by Employee to\nbe a “work-made-for-hire” by Employee for Company and owned by Company pursuant to Section 201 (b) of Title 17 of the United States Code.\n(b) Employee shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all\nsuch other agreements, certificates, instruments and documents, as the Company may reasonably request in order to obtain patent or copyright\nregistration on all Invention Ideas and Intellectual Property , and shall execute and deliver all documents, instruments and agreements, including\nthe formal execution of an assignment of copyright and/or patent application or issued patent, and do all things necessary or requested by the\nCompany, in order to enable Company to ultimately and finally obtain and enforce full and exclusive title to all Invention Ideas and Intellectual\nProperty and all rights assigned pursuant to this Section 7. Employee hereby appoints the Company as Employee’s irrevocable attorney-in-fact\nfor the purpose of executing and delivering all such documents, instruments and agreements, and performing all such acts, with the same legal\nforce and effect as if executed and delivered and taken by Employee.\n(c)\nIf for any reason the foregoing assignment is determined to be unenforceable Employee grants to Company a perpetual,\nirrevocable, worldwide, royalty-free, exclusive, sub-licensable right and license to exploit and exercise all such Invention Ideas and Intellectual\nProperty.\nlPage9\n(d)\nBecause of the difficulty of establishing when Employee first conceives of or develops Intellectual Property, proprietary\nrights or work product or whether such Intellectual Property, proprietary rights or work product results from access to Company’s confidential\nand proprietary information or equipment, facilities or data, Employee agrees that any Intellectual Property, proprietary rights and work product\nshall be presumed to be an Invention Idea if it is conceived, developed, used, sold, exploited or reduced to practice by Employee or with the aid\nof Employee within one year after the normal termination of Employee’s employment with Company. Employee can rebut that presumption if\nEmployee proves that the intellectual property, proprietary rights and work product (i) was first conceived or developed after termination of\nEmployee’s employment with and by Company; (ii) was conceived or developed entirely on Employee’s own time without using Company’s\nequipment, supplies, facilities or confidential and proprietary information; and (iii) did not result from any work performed by Employee for or\non behalf of Company.\n(e)\nEmployee acknowledges that there is no intellectual property, proprietary right or work product that Employee desires not to\nbe deemed Invention Ideas or Intellectual Property and thus to exclude from the above provisions of this Agreement. To the best of Employee’s\nknowledge, there is no other existing contract in conflict with this Agreement or any other contract to assign ideas, processes, trademarks, service\nmarks, inventions, technology, computer programs, original works of authorship, designs, formulas, discoveries, patents or copyrights that is now\nin existence between Employee and any other person or entity.\n(f)\nThis Section 7 shall not operate to require Employee to assign to Company any of Employee’s rights to inventions, intellectual\nproperties or work products that would not be assignable under the provisions of California Labor Code Section 2870. Employee represents and\nwarrants to Company that this paragraph constitutes Company’s written notification to Employee of the provisions of Section 2870 of the\nCalifornia Labor Code, and Employee represents and warrants to Company that Employee has reviewed Section 2870 of the California Labor\nCode.\n8.\nUnfair Competition and Protection of Proprietary Information.\n(a)\nEmployee shall not at any time (including after Employee’s employment with Company terminates) divulge, furnish or make\naccessible to anyone any of Company’s Proprietary Information, or use in any way any of Company’s Proprietary Information other than as\nreasonably required to perform Employee’s duties under this Agreement. Employee shall not undertake any other acts or omissions that would\nreduce the value to Company of Company’s Proprietary Information. The restrictions on Employee’s use of Company’s Proprietary Information\nshall not apply to knowledge or information that Employee can prove is part of the public domain through no fault of Employee. Employee\nagrees that such restrictions are fair and reasonable.\n(b)\nEmployee agrees that Company’s Proprietary Information constitutes a unique and valuable asset of Company that Company\nacquired at great time and expense, and which is secret and confidential and will only be available to or communicated to Employee in\nconfidence in the course of Employee’s provision of services to Company. Employee also agrees that any disclosure or other use of Company’s\nProprietary Information other than for Company’s sole benefit would be wrongful, would constitute unfair competition and will cause irreparable\nand incalculable harm to Company and to its subsidiaries, affiliates and divisions. In addition to all other remedies Company may have, it shall\nhave the right to seek and obtain appropriate injunctive and other equitable relief, including emergency relief, to prevent any violations of this\nSection 8.\nl Page 10\n(c)\nEmployee agrees that Company’s employees constitute a valuable asset of Company. Employee agrees that Employee shall\nnot, during the Term and for a period of two years thereafter, directly or indirectly, for Employee or on behalf of any other person or entity, solicit\nany person who was an employee of or Employee to Company (at any time while Employee is performing any services for Company, or at any\ntime within twelve months prior to or after such solicitation) for a competing business or otherwise induce or attempt to induce any such persons\nto terminate their employment or relationship with Company or otherwise to disrupt or interfere, or attempt to disrupt or interfere, with\nCompany’s employment or relationships with such persons. Employee agrees that any such solicitation, inducement or interference would be\nwrongful and would constitute unfair competition, and will cause irreparable and incalculable harm to Company. Further, Employee shall not\nengage in any other unfair competition with Company. Employee agrees that such restrictions are fair and reasonable.\n(d)\nEmployee recognizes and agrees that Employee has no expectation of privacy with respect to Company’s\ntelecommunications, networking or information processing systems (including stored computer files, e-mail messages and voice messages), and\nthat Employee’s activity, and any files or messages, on or using any of those systems may be monitored at any time without notice.\n(e)\nAs used in this Agreement, “Company’s Proprietary Information” means any knowledge, trade secrets (including “trade\nsecrets” as defined in Section 3426.1 of the California Civil Code), Invention Ideas, proprietary rights or proprietary information, intangible\nassets or property, and other intellectual property (whether or not copyrighted or copyrightable or patented or patentable), information and\nmaterials (including processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, technology,\npatents, patent applications and works of authorship), in whatever form, including electronic form, and all goodwill relating or appurtenant\nthereto, owned or licensed by Company or any of its subsidiaries, affiliates or divisions, or directly or indirectly useful in any aspect of the\nbusiness of Company or its subsidiaries, affiliates or divisions, whether or not marked as confidential or proprietary and whether developed by\nEmployee, by Company or its subsidiaries, affiliates or divisions or by others. Without limiting the foregoing, Company’s Proprietary\nInformation includes (a) the names, locations, practices and requirements of any of Company’s customers, prospective customers, vendors,\nsuppliers and personnel and any other persons having a business relationship with Company; (b) confidential or secret development or research\nwork of Company or its subsidiaries, affiliates or divisions, including information concerning any future or proposed services or products; (c)\nCompany’s accounting, cost, revenue and other financial records and documents and the contents thereof; (d) Company’s documents, contracts,\nagreements, correspondence and other similar business records; (e) confidential or secret designs, software code, know how, processes, formulae,\nplans and devices; and (f) any other confidential or secret aspect of the business of Company or its subsidiaries, affiliates or divisions.\n9.\nEmployee’s Activities. During the term of the Employment Agreement, neither Employee nor any person or entity acting with\nor on Employee’s behalf, nor any person or entity under the control of or affiliated with Employee, shall, directly or indirectly, in any way\nCompete with the Company. Employee agrees that, if Employee has any business to transact on Employee’s own account that is similar to the\nbusiness entrusted to Employee by Company, Employee shall notify Company and always give preference to Company’s business. Employee\nagrees that such restrictions are fair and reasonable. For purposes of this Agreement, “Compete” means doing any of the following: (i) selling\nproducts or services to any person or entity that was or is (at any time, including during the Term and the period when the provisions of this\nparagraph are in effect) a client or customer of Company (or its subsidiaries, affiliates or divisions) or on a list of prospective clients or customers\nof Company, or calling on, soliciting, taking away or accepting any such person or entity as a client or customer, or any attempt or offer to do any\nof the foregoing; (ii) entering into, or any attempt or offer to enter into, any business, enterprise or activity that is in any way similar to or\notherwise competitive with the business that the Company (or its subsidiaries, affiliates or divisions) conducted at any time during the Term or\nany time the provisions of this paragraph are in effect, or (iii) directly or indirectly assisting any person or entity to take or attempt or offer to\ntake any of the actions described in the foregoing clauses (i) or (ii).\nl Page 11\n10.\nRemedies.\n(a)\nThe Employee agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the\nCompany, entitling the Company to obtain injunctive relief in addition to all legal remedies at its disposal.\n(b)\nIn addition to all remedies available hereunder, at law or in equity, if Employee breaches any provision of Section 8 of this\nAgreement, Company shall have the right to invoke any and all remedies provided under the California Uniform Trade Secrets Act (California\nCivil Code §§3426, et seq.) or other statutes or common law remedies of similar effect.\n(c)\nThe remedies provided to Company in this Section 10 are cumulative, and not exclusive, of any other remedies that may be\navailable to Company at law or in equity.\n11.\nNo License. Nothing in this Agreement is intended to grant any rights to the Employee under any patent, copyright or other\nproprietary rights of the Company, nor shall this Agreement grant the Employee any rights in or to Confidential Information except as expressly\nset forth herein.\n12.\nTerm. This Agreement shall survive the term of the Employment Agreement and shall continue until such time as all\nConfidential Information disclosed hereunder becomes publicly known and made generally available through no action or inaction of the\nEmployee.\n13.\nMiscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This\nAgreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. This document contains the\nentire agreement between the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not\nconstitute a waiver thereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a\nwriting signed by both parties hereto.\nIN WITNESS WHEREOF, the parties hereto have executed or caused their duly authorized officers to execute this Agreement as of the\ndate first above written.\nAPOLLO MEDICAL HOLDINGS, INC.\n(“COMPANY”)\nBy /s/ Warren Hosseinion\nWarren Hosseinion\nTitle: President and Chief Executive Officer\n“EMPLOYEE”\n/s/ Noel DeWinter\nNoel DeWinter	1 Page 7\nAppendix A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) dated as of September 10, 2008 is entered in by and between Apollo Medical Holdings,\nInc. (the “Company”) and Noel DeWinter (the “Employee”), and sets forth the terms and conditions on which Company is willing to disclose\ncertain material non-public information about the Company.\n1. Purpose. In connection with his retention as a Employee to the Company pursuant to an agreement dated as of even date (the\n“Employee Agreement”), the Company may disclose to the Employee certain confidential technical and business information which the\nCompany requires the Employee to treat as confidential.\n2. Definition. “Confidential Information” means any information disclosed to the Employee by the Company, either directly or\nindirectly in writing, orally or by inspection of tangible objects, including without limitation documents, prototypes and forecasted financial\ninformation. Confidential Information may also include information disclosed to the Company by third parties. Confidential Information shall\nnot, however, include any information which the Employee can establish by written documentation (i) was publicly known and made generally\navailable in the public domain prior to the time of disclosure to the Employee by the Company; (ii) becomes publicly known and made generally\navailable after disclosure to the Employee by the Company through no action or inaction of the Employee; (iii) is in the possession of the\nEmployee, without confidentiality restrictions, at the time of disclosure by the Company as shown by the Employee's files and records\nimmediately prior to the time of disclosure; (iv) is developed independently of the Confidential Information, as shown by written records\nprepared contemporaneously with such independent development; or (v) is disclosed pursuant to the requirement of a United States government\nagency or judicial body, provided that the Employee shall provide reasonable advice notice thereof to enable the Company to seek a protective\norder or otherwise prevent such disclosure.\n3. Non-use and Non-disclosure. The Employee agrees not to use any Confidential Information for any purpose except within the\nproper scope of his duties pursuant to the Employment Agreement. The Employee agrees not to disclose any Confidential Information to third\nparties, except to those individuals who, with the prior written consent of the Company, are designated as authorized to receive such Confidential\nInformation in order for the Employee to perform his duties and obligation sunder the Employment Agreement. The Employee agrees that each\nthird party receiving any Confidential Information will enter into a separate Non-Disclosure Agreement with the Company.\n4. Maintenance of Confidentiality. The Employee agrees that it shall take all commercially reasonable measures to protect the\nsecrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Employee shall take at\nleast those measures that the Employee takes to protect its own confidential information of a similar nature and shall have its employees or\nadvisors who have access to Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the\nprovisions hereof, prior to any disclosure of Confidential Information to such employees. The Employee shall immediately notify the Company\nin the event of any unauthorized use or disclosure of any Confidential Information.\n1 Page 8\n5. No Warranty. ALL. CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. COMPANY MAKES NO WARRANTIES,\nEXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n6. Return of Materials. All documents and other tangible objects containing or representing Confidential Information which are\nin the possession of the Employee shall be and remain the property of the Company and shall be promptly returned to the Company upon request\nfor any reason or for no reason.\n7. Work Made for Hire.\n@) Employee and/or designates of the Employee shall promptly and fully inform the Company of, and disclose to the Company ,\nany and all ideas, processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, fictitious business\nnames, technology, patents, know-how, trade secrets, computer programs, original works of authorship, formulae, concepts, themes, inventions,\ndesigns, creations, new works, derivative works and discoveries, and all applications, improvements, rights and claims related to any the\nforegoing, and all other intellectual property, proprietary rights and work product, whether or not patentable or copyrightable, registered or\nunregistered or domestic or foreign, and whether or not relating to a published work, that Employee develops, makes, creates, conceives or\nreduces to practice during the term of the Employment Agreement, whether alone or in collaboration with others (collectively, “Invention\nIdeas”). Employee hereby assigns to the Company exclusively in perpetuity throughout the world all right, title and interest (choate or inchoate)\nin (i) the Invention Ideas, (ii) all precursors, portions and work in progress with respect thereto and all inventions, works of authorship, mask\nworks, technology, information, know-how, materials and tools relating thereto or to the development, support or maintenance thereof and (iii) all\ncopyrights, patent rights, trade secret rights, trademark rights, mask works rights, sui generis database rights and all other intellectual and\nindustrial property rights of any sort and all business, contract rights, causes of action, and goodwill in, incorporated or embodied in, used to\ndevelop, or related to any of the foregoing (collectively "Intellectual Property").. All copyrightable Invention Ideas are intended by Employee to\nbe a “work-made-for-hire” by Employee for Company and owned by Company pursuant to Section 201 (b) of Title 17 of the United States Code.\n(b) Employee shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all\nsuch other agreements, certificates, instruments and documents, as the Company may reasonably request in order to obtain patent or copyright\nregistration on all Invention Ideas and Intellectual Property , and shall execute and deliver all documents, instruments and agreements, including\nthe formal execution of an assignment of copyright and/or patent application or issued patent, and do all things necessary or requested by the\nCompany, in order to enable Company to ultimately and finally obtain and enforce full and exclusive title to all Invention Ideas and Intellectual\nProperty and all rights assigned pursuant to this Section 7. Employee hereby appoints the Company as Employee’s irrevocable attorney-in-fact\nfor the purpose of executing and delivering all such documents, instruments and agreements, and performing all such acts, with the same legal\nforce and effect as if executed and delivered and taken by Employee.\n(0 If for any reason the foregoing assignment is determined to be unenforceable Employee grants to Company a perpetual,\nirrevocable, worldwide, royalty-free, exclusive, sub-licensable right and license to exploit and exercise all such Invention Ideas and Intellectual\nProperty.\n1 Page 9\n(d) Because of the difficulty of establishing when Employee first conceives of or develops Intellectual Property, proprietary\nrights or work product or whether such Intellectual Property, proprietary rights or work product results from access to Company’s confidential\nand proprietary information or equipment, facilities or data, Employee agrees that any Intellectual Property, proprietary rights and work product\nshall be presumed to be an Invention Idea if it is conceived, developed, used, sold, exploited or reduced to practice by Employee or with the aid\nof Employee within one year after the normal termination of Employee’s employment with Company. Employee can rebut that presumption if\nEmployee proves that the intellectual property, proprietary rights and work product (i) was first conceived or developed after termination of\nEmployee’s employment with and by Company; (ii) was conceived or developed entirely on Employee’s own time without using Company’s\nequipment, supplies, facilities or confidential and proprietary information; and (iii) did not result from any work performed by Employee for or\non behalf of Company.\n(e) Employee acknowledges that there is no intellectual property, proprietary right or work product that Employee desires not to\nbe deemed Invention Ideas or Intellectual Property and thus to exclude from the above provisions of this Agreement. To the best of Employee’s\nknowledge, there is no other existing contract in conflict with this Agreement or any other contract to assign ideas, processes, trademarks, service\nmarks, inventions, technology, computer programs, original works of authorship, designs, formulas, discoveries, patents or copyrights that is now\nin existence between Employee and any other person or entity.\n(3] This Section 7 shall not operate to require Employee to assign to Company any of Employee’s rights to inventions, intellectual\nproperties or work products that would not be assignable under the provisions of California Labor Code Section 2870. Employee represents and\nwarrants to Company that this paragraph constitutes Company’s written notification to Employee of the provisions of Section 2870 of the\nCalifornia Labor Code, and Employee represents and warrants to Company that Employee has reviewed Section 2870 of the California Labor\nCode.\n8. Unfair Competition and Protection of Proprietary Information.\n@) Employee shall not at any time (including after Employee’s employment with Company terminates) divulge, furnish or make\naccessible to anyone any of Company’s Proprietary Information, or use in any way any of Company’s Proprietary Information other than as\nreasonably required to perform Employee’s duties under this Agreement. Employee shall not undertake any other acts or omissions that would\nreduce the value to Company of Company’s Proprietary Information. The restrictions on Employee’s use of Company’s Proprietary Information\nshall not apply to knowledge or information that Employee can prove is part of the public domain through no fault of Employee. Employee\nagrees that such restrictions are fair and reasonable.\n(b) Employee agrees that Company’s Proprietary Information constitutes a unique and valuable asset of Company that Company\nacquired at great time and expense, and which is secret and confidential and will only be available to or communicated to Employee in\nconfidence in the course of Employee’s provision of services to Company. Employee also agrees that any disclosure or other use of Company’s\nProprietary Information other than for Company’s sole benefit would be wrongful, would constitute unfair competition and will cause irreparable\nand incalculable harm to Company and to its subsidiaries, affiliates and divisions. In addition to all other remedies Company may have, it shall\nhave the right to seek and obtain appropriate injunctive and other equitable relief, including emergency relief, to prevent any violations of this\nSection 8.\n1 Page 10\n(0 Employee agrees that Company’s employees constitute a valuable asset of Company. Employee agrees that Employee shall\nnot, during the Term and for a period of two years thereafter, directly or indirectly, for Employee or on behalf of any other person or entity, solicit\nany person who was an employee of or Employee to Company (at any time while Employee is performing any services for Company, or at any\ntime within twelve months prior to or after such solicitation) for a competing business or otherwise induce or attempt to induce any such persons\nto terminate their employment or relationship with Company or otherwise to disrupt or interfere, or attempt to disrupt or interfere, with\nCompany’s employment or relationships with such persons. Employee agrees that any such solicitation, inducement or interference would be\nwrongful and would constitute unfair competition, and will cause irreparable and incalculable harm to Company. Further, Employee shall not\nengage in any other unfair competition with Company. Employee agrees that such restrictions are fair and reasonable.\n(d) Employee recognizes and agrees that Employee has no expectation of privacy with respect to Company’s\ntelecommunications, networking or information processing systems (including stored computer files, e-mail messages and voice messages), and\nthat Employee’s activity, and any files or messages, on or using any of those systems may be monitored at any time without notice.\n(e) As used in this Agreement, “Company’s Proprietary Information” means any knowledge, trade secrets (including “trade\nsecrets” as defined in Section 3426.1 of the California Civil Code), Invention Ideas, proprietary rights or proprietary information, intangible\nassets or property, and other intellectual property (whether or not copyrighted or copyrightable or patented or patentable), information and\nmaterials (including processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, technology,\npatents, patent applications and works of authorship), in whatever form, including electronic form, and all goodwill relating or appurtenant\nthereto, owned or licensed by Company or any of its subsidiaries, affiliates or divisions, or directly or indirectly useful in any aspect of the\nbusiness of Company or its subsidiaries, affiliates or divisions, whether or not marked as confidential or proprietary and whether developed by\nEmployee, by Company or its subsidiaries, affiliates or divisions or by others. Without limiting the foregoing, Company’s Proprietary\nInformation includes (a) the names, locations, practices and requirements of any of Company’s customers, prospective customers, vendors,\nsuppliers and personnel and any other persons having a business relationship with Company; (b) confidential or secret development or research\nwork of Company or its subsidiaries, affiliates or divisions, including information concerning any future or proposed services or products; (c)\nCompany’s accounting, cost, revenue and other financial records and documents and the contents thereof; (d) Company’s documents, contracts,\nagreements, correspondence and other similar business records; (e) confidential or secret designs, software code, know how, processes, formulae,\nplans and devices; and (f) any other confidential or secret aspect of the business of Company or its subsidiaries, affiliates or divisions.\n9. Employee’s Activities. During the term of the Employment Agreement, neither Employee nor any person or entity acting with\nor on Employee’s behalf, nor any person or entity under the control of or affiliated with Employee, shall, directly or indirectly, in any way\nCompete with the Company. Employee agrees that, if Employee has any business to transact on Employee’s own account that is similar to the\nbusiness entrusted to Employee by Company, Employee shall notify Company and always give preference to Company’s business. Employee\nagrees that such restrictions are fair and reasonable. For purposes of this Agreement, “Compete” means doing any of the following: (i) selling\nproducts or services to any person or entity that was or is (at any time, including during the Term and the period when the provisions of this\nparagraph are in effect) a client or customer of Company (or its subsidiaries, affiliates or divisions) or on a list of prospective clients or customers\nof Company, or calling on, soliciting, taking away or accepting any such person or entity as a client or customer, or any attempt or offer to do any\nof the foregoing; (ii) entering into, or any attempt or offer to enter into, any business, enterprise or activity that is in any way similar to or\notherwise competitive with the business that the Company (or its subsidiaries, affiliates or divisions) conducted at any time during the Term or\nany time the provisions of this paragraph are in effect, or (iii) directly or indirectly assisting any person or entity to take or attempt or offer to\ntake any of the actions described in the foregoing clauses (i) or (ii).\n1 Page 11\n10. Remedies.\n@) The Employee agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the\nCompany, entitling the Company to obtain injunctive relief in addition to all legal remedies at its disposal.\n(b) In addition to all remedies available hereunder, at law or in equity, if Employee breaches any provision of Section 8 of this\nAgreement, Company shall have the right to invoke any and all remedies provided under the California Uniform Trade Secrets Act (California\nCivil Code §83426, et seq.) or other statutes or common law remedies of similar effect.\n(0 The remedies provided to Company in this Section 10 are cumulative, and not exclusive, of any other remedies that may be\navailable to Company at law or in equity.\n11. No License. Nothing in this Agreement is intended to grant any rights to the Employee under any patent, copyright or other\nproprietary rights of the Company, nor shall this Agreement grant the Employee any rights in or to Confidential Information except as expressly\nset forth herein.\n12. Term. This Agreement shall survive the term of the Employment Agreement and shall continue until such time as all\nConfidential Information disclosed hereunder becomes publicly known and made generally available through no action or inaction of the\nEmployee.\n13. Miscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This\nAgreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. This document contains the\nentire agreement between the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not\nconstitute a waiver thereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a\nwriting signed by both parties hereto.\nIN WITNESS WHEREQF, the parties hereto have executed or caused their duly authorized officers to execute this Agreement as of the\ndate first above written.\nAPOLLO MEDICAL HOLDINGS, INC.\n(“COMPANY?”)\nBy /s/ Warren Hosseinion\nWarren Hosseinion\nTitle: President and Chief Executive Officer\n“EMPLOYEE”\n/s/ Noel DeWinter\nNoel DeWinter	1 Page 7\nAppendix A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement ("Agreement") dated as of September 10, 2008 is entered in by and between Apollo Medical Holdings,\nInc. (the "Company") and Noel DeWinter (the "Employee"), and sets forth the terms and conditions on which Company is willing to disclose\ncertain material non-public information about the Company.\n1.\nPurpose. In connection with his retention as a Employee to the Company pursuant to an agreement dated as of even date (the\n"Employee Agreement"), the Company may disclose to the Employee certain confidential technical and business information which the\nCompany requires the Employee to treat as confidential.\n2.\nDefinition. "Confidential Information" means any information disclosed to the Employee by the Company, either directly or\nindirectly in writing, orally or by inspection of tangible objects, including without limitation documents, prototypes and forecasted financial\ninformation. Confidential Information may also include information disclosed to the Company by third parties. Confidential Information shall\nnot, however, include any information which the Employee can establish by written documentation (i) was publicly known and made generally\navailable in the public domain prior to the time of disclosure to the Employee by the Company; (ii) becomes publicly known and made generally\navailable after disclosure to the Employee by the Company through no action or inaction of the Employee; (iii) is in the possession of the\nEmployee, without confidentiality restrictions, at the time of disclosure by the Company as shown by the Employee's files and records\nimmediately prior to the time of disclosure; (iv) is developed independently of the Confidential Information, as shown by written records\nprepared contemporaneously with such independent development; or (v) is disclosed pursuant to the requirement of a United States government\nagency or judicial body, provided that the Employee shall provide reasonable advice notice thereof to enable the Company to seek a protective\norder or otherwise prevent such disclosure.\n3.\nNon-use and Non-disclosure. The Employee agrees not to use any Confidentia Information for any purpose except within the\nproper scope of his duties pursuant to the Employment Agreement. The Employee agrees not to disclose any Confidential Information to third\nparties,\nexcept to those individuals who, with the prior written consent of the Company, are designated as authorized to receive such Confidential\nInformation in order for the Employee to perform his duties and obligation sunder the Employment Agreement. The Employee agrees that each\nthird party receiving any Confidential Information will enter into a separate Non-Disclosure Agreement with the Company.\n4.\nMaintenance of Confidentiality. The Employee agrees that it shall take all commercially reasonable measures to protect the\nsecrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Employee shall take at\nleast those measures that the Employee takes to protect its own confidential information of a similar nature and shall have its employees or\nadvisors who have access to Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the\nprovisions hereof, prior to any disclosure of Confidential Information to such employees. The Employee shall immediately notify the Company\nin the event of any unauthorized use or disclosure of any Confidential Information.\n1 Page 8\n5.\nNo Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS". COMPANY MAKES NO WARRANTIES,\nEXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n6.\nReturn of Materials. All documents and other tangible objects containing or representing Confidential Information which are\nin the possession of the Employee shall be and remain the property of the Company and shall be promptly returned to the Company upon request\nfor any reason or for no reason.\n7.\nWork Made for Hire.\n(a)\nEmployee and/or designates of the Employee shall promptly and fully inform the Company of, and disclose to the Company,\nany and all ideas, processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, fictitious business\nnames, technology, patents, know-how, trade secrets, computer programs, original works of authorship, formulae, concepts, themes, inventions,\ndesigns, creations, new works, derivative works and discoveries, and all applications, improvements, rights and claims related to any the\nforegoing, and all other intellectual property, proprietary rights and work product, whether or not patentable or copyrightable, registered or\nunregistered or domestic or foreign, and whether or not relating to a published work, that Employee develops, makes, creates, conceives or\nreduces to practice during the term of the Employment Agreement, whether alone or in collaboration with others (collectively, "Invention\nIdeas"). Employee hereby assigns to the Company exclusively in perpetuity throughout the world all right, title and interest (choate or inchoate)\nin (i) the Invention Ideas, (ii) all precursors, portions and work in progress with respect thereto and all inventions, works of authorship, mask\nworks, technology, information, know-how, materials and tools relating thereto or to the development, support or maintenance thereof and (iii)\nall\ncopyrights, patent rights, trade secret rights, trademark rights, mask works rights, sui generis database rights and all other intellectual and\nindustrial property rights of any sort and all business, contract rights, causes of action, and goodwill in, incorporated or embodied in, used\nto\ndevelop, or related to any of the foregoing (collectively "Intellectual Property").. All copyrightable Invention Ideas are intended by Employee\nto\nbe a "work-made-for-hire" by Employee for Company and owned by Company pursuant to Section 201 (b) of Title 17 of the United States Code.\n(b) Employee shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all\nsuch other agreements, certificates, instruments and documents, as the Company may reasonably request in order to obtain patent or copyright\nregistration\non\nall\nInvention\nIdeas\nand\nIntellectual\nProperty\nand\nshall\nexecute\nand\ndeliver\nall\ndocuments,\ninstruments\nand\nagreements,\nincluding\nthe formal execution of an assignment of copyright and/or patent application or issued patent, and do all things necessary or requested by the\nCompany, in order to enable Company to ultimately and finally obtain and enforce full and exclusive title to all Invention Ideas and Intellectual\nProperty and all rights assigned pursuant to this Section 7. Employee hereby appoints the Company as Employee's irrevocable attorney-in-fact\nfor the purpose of executing and delivering all such documents, instruments and agreements, and performing all such acts, with the same legal\nforce and effect as if executed and delivered and taken by Employee.\n(c)\nIf for any reason the foregoing assignment is determined to be unenforceable Employee grants to Company a perpetual,\nirrevocable, worldwide, royalty-free, exclusive, sub-licensable right and license to exploit and exercise all such Invention Ideas and Intellectual\nProperty.\n1 Page 9\n(d)\nBecause of the difficulty of establishing when Employee first conceives of or develops Intellectual Property, proprietary\nrights or work product or whether such Intellectual Property, proprietary rights or work product results from access to Company's confidential\nand proprietary information or equipment, facilities or data, Employee agrees that any Intellectual Property, proprietary rights and work product\nshall be presumed to be an Invention Idea if it is conceived, developed, used, sold, exploited or reduced to practice by Employee or with the aid\nof Employee within one year after the normal termination of Employee's employment with Company. Employee can rebut that presumption if\nEmployee proves that the intellectual property, proprietary rights and work product (i) was first conceived or developed after termination of\nEmployee's employment with and by Company; (ii) was conceived or developed entirely on Employee's own time without using Company's\nequipment, supplies, facilities or confidential and proprietary information; and (iii) did not result from any work performed by Employee for or\non behalf of Company.\n(e)\nEmployee acknowledges that there is no intellectual property, proprietary right or work product that Employee desires not to\nbe deemed Invention Ideas or Intellectual Property and thus to exclude from the above provisions of this Agreement. To the best of Employee's\nknowledge, there is no other existing contract in conflict with this Agreement or any other contract to assign ideas, processes, trademarks, service\nmarks, inventions, technology, computer programs, original works of authorship, designs, formulas, discoveries, patents or copyrights that is now\nin existence between Employee and any other person or entity.\n(f)\nThis Section 7 shall not operate to require Employee to assign to Company any of Employee's rights to inventions, intellectual\nproperties or work products that would not be assignable under the provisions of California Labor Code Section 2870. Employee represents and\nwarrants to Company that this paragraph constitutes Company's written notification to Employee of the provisions of Section 2870 of the\nCalifornia Labor Code, and Employee represents and warrants to Company that Employee has reviewed Section 2870 of the California Labor\nCode.\n8.\nUnfair Competition and Protection of Proprietary. Information.\n(a)\nEmployee shall not at any time (including after Employee's employment with Company terminates) divulge, furnish or make\naccessible to anyone any of Company's Proprietary Information, or use in any way any of Company's Proprietary Information other than as\nreasonably required to perform Employee's duties under this Agreement. Employee shall not undertake any other acts or omissions that would\nreduce the value to Company of Company's Proprietary Information. The restrictions on Employee's use of Company's Proprietary Information\nshall not apply to knowledge or information that Employee can prove is part of the public domain through no fault of Employee. Employee\nagrees that such restrictions are fair and reasonable.\n(b)\nEmployee agrees that Company's Proprietary Information constitutes a unique and valuable asset of Company that Company\nacquired at great time and expense, and which is secret and confidential and will only be available to or communicated to Employee in\nconfidence in the course of Employee's provision of services to Company. Employee also agrees that any disclosure or other use of Company's\nProprietary Information other than for Company's sole benefit would be wrongful, would constitute unfair competition and will cause irreparable\nand incalculable harm to Company and to its subsidiaries, affiliates and divisions. In addition to all other remedies Company may have, it shall\nhave the right to seek and obtain appropriate injunctive and other equitable relief, including emergency relief, to prevent any violations of this\nSection 8.\n1 Page 10\n(c)\nEmployee agrees that Company's employees constitute a valuable asset of Company. Employee agrees that Employee shall\nnot, during the Term and for a period of two years thereafter, directly or indirectly, for Employee or on behalf of any other person or entity, solicit\nany person who was an employee of or Employee to Company (at any time while Employee is performing any services for Company, or at any\ntime within twelve months prior to or after such solicitation) for a competing business or otherwise induce or attempt to induce any such persons\nto terminate their employment or relationship with Company or otherwise to disrupt or interfere, or attempt to disrupt or interfere, with\nCompany's employment or relationships with such persons. Employee agrees that any such solicitation, inducement or interference would\nbe\nwrongful and would constitute unfair competition, and will cause irreparable and incalculable harm to Company. Further, Employee shall not\nengage in any other unfair competition with Company. Employee agrees that such restrictions are fair and reasonable.\n(d)\nEmployee recognizes and agrees that Employee has no expectation of privacy with respect to Company's\ntelecommunications, networking or information processing systems (including stored computer files, e-mail messages and voice messages), and\nthat Employee's activity, and any files or messages, on or using any of those systems may be monitored at any time without notice.\n(e)\nAs\nused in this Agreement, "Company's Proprietary Information" means any knowledge, trade secrets (including "trade\nsecretS" as defined in Section 3426.1 of the California Civil Code), Invention Ideas, proprietary rights or proprietary information, intangible\nassets or property, and other intellectual property (whether or not copyrighted or copyrightable or patented or patentable), information and\nmaterials (including processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, technology,\npatents, patent applications and works of authorship), in whatever form, including electronic form, and all goodwill relating or appurtenant\nthereto, owned or licensed by Company or any of its subsidiaries, affiliates or divisions, or directly or indirectly useful in any aspect of the\nbusiness of Company or its subsidiaries, affiliates or divisions, whether or not marked as confidential or proprietary and whether developed\nby\nEmployee, by Company or its subsidiaries, affiliates or divisions or by others. Without limiting the foregoing, Company's Proprietary\nInformation includes (a) the names, locations, practices and requirements of any of Company's customers, prospective customers, vendors,\nsuppliers and personnel and any other persons having a business relationship with Company; (b) confidential or secret development or research\nwork of Company or its subsidiaries, affiliates or divisions, including information concerning any future or proposed services or products; (c)\nCompany's accounting, cost, revenue and other financial records and documents and the contents thereof; (d) Company's documents, contracts,\nagreements, correspondence and other similar business records; (e) confidential or secret designs, software code, know how, processes, formulae,\nplans and devices; and (f) any other confidential or secret aspect of the business of Company or its subsidiaries, affiliates or divisions.\n9.\nEmployee's Activities. During the term of the Employment Agreement, neither Employee nor any person or entity acting with\nor on Employee's behalf, nor any person or entity under the control of or affiliated with Employee, shall, directly or indirectly, in any way\nCompete with the Company. Employee agrees that, if Employee has any business to transact on Employee's own account that is similar to the\nbusiness entrusted to Employee by Company, Employee shall notify Company and always give preference to Company's business. Employee\nagrees\nthat\nsuch\nrestrictions\nare\nfair\nand\nreasonable.\nFor\npurposes\nof\nthis\nAgreement,\n"Compete"\nmeans\ndoing\nany\nof\nthe\nfollowing:\n(i)\nselling\nproducts or services to any person or entity that was or is (at any time, including during the Term and the period when the provisions of this\nparagraph are in effect) a client or customer of Company (or its subsidiaries, affiliates or divisions) or on a list of prospective clients or customers\nof Company, or calling on, soliciting, taking away or accepting any such person or entity as a client or customer, or any attempt or offer to do any\nof the foregoing; (ii) entering into, or any attempt or offer to enter into, any business, enterprise or activity that is in any way similar to or\notherwise competitive with the business that the Company (or its subsidiaries, affiliates or divisions) conducted at any time during the Term or\nany time the provisions of this paragraph are in effect, or (iii) directly or indirectly assisting any person or entity to take or attempt or offer to\ntake any of the actions described in the foregoing clauses (i) or (ii).\n1 Page 11\n10.\nRemedies.\n(a)\nThe Employee agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the\nCompany, entitling the Company to obtain injunctive relief in addition to all legal remedies at its disposal.\n(b)\nIn addition to all remedies available hereunder, at law or in equity, if Employee breaches any provision of Section 8 of this\nAgreement, Company shall have the right to invoke any and all remedies provided under the California Uniform Trade Secrets Act (California\nCivil Code 883426, et seq.) or other statutes or common law remedies of similar effect.\n(c)\nThe remedies provided to Company in this Section 10 are cumulative, and not exclusive, of any other remedies that may be\navailable to Company at law or in equity.\n11.\nNo License. Nothing in this Agreement is intended to grant any rights to the Employee under any patent, copyright or other\nproprietary rights of the Company, nor shall this Agreement grant the Employee any rights in or to Confidential Information except as expressly\nset forth herein.\n12.\nTerm. This Agreement shall survive the term of the Employment Agreement and shall continue until such time as all\nConfidential Information disclosed hereunder becomes publicly known and made generally available through no action or inaction of the\nEmployee.\n13.\nMiscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This\nAgreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. This document contains the\nentire agreement between the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not\nconstitute a waiver thereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by\na\nwriting signed by both parties hereto.\nIN WITNESS WHEREOF, the parties hereto have executed or caused their duly authorized officers to execute this Agreement as of the\ndate first above written.\nAPOLLO MEDICAL HOLDINGS, INC.\n("COMPANY")\nBy /s/ Warren Hosseinion\nWarren Hosseinion\nTitle: President and Chief Executive Officer\n"EMPLOYEE"\n/s/ Noel DeWinter\nNoel DeWinter	lPage7\nAppendix A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) dated as of September 10, 2008 is entered in by and between Apollo Medical Holdings,\nInc. (the “Company”) and Noel DeWinter (the “Employee”), and sets forth the terms and conditions on which Company is willing to disclose\ncertain material non-public information about the Company.\n1.\nPurpose. In connection with his retention as a Employee to the Company pursuant to an agreement dated as of even date (the\n“Employee Agreement”), the Company may disclose to the Employee certain confidential technical and business information which the\nCompany requires the Employee to treat as confidential.\n2.\nDefinition. “Confidential Information” means any information disclosed to the Employee by the Company, either directly or\nindirectly in writing, orally or by inspection of tangible objects, including without limitation documents, prototypes and forecasted financial\ninformation. Confidential Information may also include information disclosed to the Company by third parties. Confidential Information shall\nnot, however, include any information which the Employee can establish by written documentation (i) was publicly known and made generally\navailable in the public domain prior to the time of disclosure to the Employee by the Company; (ii) becomes publicly known and made generally\navailable after disclosure to the Employee by the Company through no action or inaction of the Employee; (iii) is in the possession of the\nEmployee, without confidentiality restrictions, at the time of disclosure by the Company as shown by the Employee's files and records\nimmediately prior to the time of disclosure; (iv) is developed independently of the Confidential Information, as shown by written records\nprepared contemporaneously with such independent development; or (v) is disclosed pursuant to the requirement of a United States government\nagency or judicial body, provided that the Employee shall provide reasonable advice notice thereof to enable the Company to seek a protective\norder or otherwise prevent such disclosure.\n3.\nNon-use and Non-disclosure. The Employee agrees not to use any Confidential Information for any purpose except within the\nproper scope of his duties pursuant to the Employment Agreement. The Employee agrees not to disclose any Confidential Information to third\nparties, except to those individuals who, with the prior written consent of the Company, are designated as authorized to receive such Confidential\nInformation in order for the Employee to perform his duties and obligation sunder the Employment Agreement. The Employee agrees that each\nthird party receiving any Confidential Information will enter into a separate Non-Disclosure Agreement with the Company.\n4.\nMaintenance of Confidentiality. The Employee agrees that it shall take all commercially reasonable measures to protect the\nsecrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Employee shall take at\nleast those measures that the Employee takes to protect its own confidential information of a similar nature and shall have its employees or\nadvisors who have access to Confidential Information sign a non-use and non-disclosure agreement in content substantially similar to the\nprovisions hereof, prior to any disclosure of Confidential Information to such employees. The Employee shall immediately notify the Company\nin the event of any unauthorized use or disclosure of any Confidential Information.\nlPage8\n5.\nNo Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. COMPANY MAKES NO WARRANTIES,\nEXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.\n6.\nReturn of Materials. All documents and other tangible objects containing or representing Confidential Information which are\nin the possession of the Employee shall be and remain the property of the Company and shall be promptly returned to the Company upon request\nfor any reason or for no reason.\n7.\nWork Made for Hire.\n(a)\nEmployee and/or designates of the Employee shall promptly and fully inform the Company of, and disclose to the Company ,\nany and all ideas, processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, fictitious business\nnames, technology, patents, know-how, trade secrets, computer programs, original works of authorship, formulae, concepts, themes, inventions,\ndesigns, creations, new works, derivative works and discoveries, and all applications, improvements, rights and claims related to any the\nforegoing, and all other intellectual property, proprietary rights and work product, whether or not patentable or copyrightable, registered or\nunregistered or domestic or foreign, and whether or not relating to a published work, that Employee develops, makes, creates, conceives or\nreduces to practice during the term of the Employment Agreement, whether alone or in collaboration with others (collectively, “Invention\nIdeas”). Employee hereby assigns to the Company exclusively in perpetuity throughout the world all right, title and interest (choate or inchoate)\nin (i) the Invention Ideas, (ii) all precursors, portions and work in progress with respect thereto and all inventions, works of authorship, mask\nworks, technology, information, know-how, materials and tools relating thereto or to the development, support or maintenance thereof and (iii) all\ncopyrights, patent rights, trade secret rights, trademark rights, mask works rights, sui generis database rights and all other intellectual and\nindustrial property rights of any sort and all business, contract rights, causes of action, and goodwill in, incorporated or embodied in, used to\ndevelop, or related to any of the foregoing (collectively "Intellectual Property").. All copyrightable Invention Ideas are intended by Employee to\nbe a “work-made-for-hire” by Employee for Company and owned by Company pursuant to Section 201 (b) of Title 17 of the United States Code.\n(b) Employee shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all\nsuch other agreements, certificates, instruments and documents, as the Company may reasonably request in order to obtain patent or copyright\nregistration on all Invention Ideas and Intellectual Property , and shall execute and deliver all documents, instruments and agreements, including\nthe formal execution of an assignment of copyright and/or patent application or issued patent, and do all things necessary or requested by the\nCompany, in order to enable Company to ultimately and finally obtain and enforce full and exclusive title to all Invention Ideas and Intellectual\nProperty and all rights assigned pursuant to this Section 7. Employee hereby appoints the Company as Employee’s irrevocable attorney-in-fact\nfor the purpose of executing and delivering all such documents, instruments and agreements, and performing all such acts, with the same legal\nforce and effect as if executed and delivered and taken by Employee.\n(c)\nIf for any reason the foregoing assignment is determined to be unenforceable Employee grants to Company a perpetual,\nirrevocable, worldwide, royalty-free, exclusive, sub-licensable right and license to exploit and exercise all such Invention Ideas and Intellectual\nProperty.\nlPage9\n(d)\nBecause of the difficulty of establishing when Employee first conceives of or develops Intellectual Property, proprietary\nrights or work product or whether such Intellectual Property, proprietary rights or work product results from access to Company’s confidential\nand proprietary information or equipment, facilities or data, Employee agrees that any Intellectual Property, proprietary rights and work product\nshall be presumed to be an Invention Idea if it is conceived, developed, used, sold, exploited or reduced to practice by Employee or with the aid\nof Employee within one year after the normal termination of Employee’s employment with Company. Employee can rebut that presumption if\nEmployee proves that the intellectual property, proprietary rights and work product (i) was first conceived or developed after termination of\nEmployee’s employment with and by Company; (ii) was conceived or developed entirely on Employee’s own time without using Company’s\nequipment, supplies, facilities or confidential and proprietary information; and (iii) did not result from any work performed by Employee for or\non behalf of Company.\n(e)\nEmployee acknowledges that there is no intellectual property, proprietary right or work product that Employee desires not to\nbe deemed Invention Ideas or Intellectual Property and thus to exclude from the above provisions of this Agreement. To the best of Employee’s\nknowledge, there is no other existing contract in conflict with this Agreement or any other contract to assign ideas, processes, trademarks, service\nmarks, inventions, technology, computer programs, original works of authorship, designs, formulas, discoveries, patents or copyrights that is now\nin existence between Employee and any other person or entity.\n(f)\nThis Section 7 shall not operate to require Employee to assign to Company any of Employee’s rights to inventions, intellectual\nproperties or work products that would not be assignable under the provisions of California Labor Code Section 2870. Employee represents and\nwarrants to Company that this paragraph constitutes Company’s written notification to Employee of the provisions of Section 2870 of the\nCalifornia Labor Code, and Employee represents and warrants to Company that Employee has reviewed Section 2870 of the California Labor\nCode.\n8.\nUnfair Competition and Protection of Proprietary Information.\n(a)\nEmployee shall not at any time (including after Employee’s employment with Company terminates) divulge, furnish or make\naccessible to anyone any of Company’s Proprietary Information, or use in any way any of Company’s Proprietary Information other than as\nreasonably required to perform Employee’s duties under this Agreement. Employee shall not undertake any other acts or omissions that would\nreduce the value to Company of Company’s Proprietary Information. The restrictions on Employee’s use of Company’s Proprietary Information\nshall not apply to knowledge or information that Employee can prove is part of the public domain through no fault of Employee. Employee\nagrees that such restrictions are fair and reasonable.\n(b)\nEmployee agrees that Company’s Proprietary Information constitutes a unique and valuable asset of Company that Company\nacquired at great time and expense, and which is secret and confidential and will only be available to or communicated to Employee in\nconfidence in the course of Employee’s provision of services to Company. Employee also agrees that any disclosure or other use of Company’s\nProprietary Information other than for Company’s sole benefit would be wrongful, would constitute unfair competition and will cause irreparable\nand incalculable harm to Company and to its subsidiaries, affiliates and divisions. In addition to all other remedies Company may have, it shall\nhave the right to seek and obtain appropriate injunctive and other equitable relief, including emergency relief, to prevent any violations of this\nSection 8.\nl Page 10\n(c)\nEmployee agrees that Company’s employees constitute a valuable asset of Company. Employee agrees that Employee shall\nnot, during the Term and for a period of two years thereafter, directly or indirectly, for Employee or on behalf of any other person or entity, solicit\nany person who was an employee of or Employee to Company (at any time while Employee is performing any services for Company, or at any\ntime within twelve months prior to or after such solicitation) for a competing business or otherwise induce or attempt to induce any such persons\nto terminate their employment or relationship with Company or otherwise to disrupt or interfere, or attempt to disrupt or interfere, with\nCompany’s employment or relationships with such persons. Employee agrees that any such solicitation, inducement or interference would be\nwrongful and would constitute unfair competition, and will cause irreparable and incalculable harm to Company. Further, Employee shall not\nengage in any other unfair competition with Company. Employee agrees that such restrictions are fair and reasonable.\n(d)\nEmployee recognizes and agrees that Employee has no expectation of privacy with respect to Company’s\ntelecommunications, networking or information processing systems (including stored computer files, e-mail messages and voice messages), and\nthat Employee’s activity, and any files or messages, on or using any of those systems may be monitored at any time without notice.\n(e)\nAs used in this Agreement, “Company’s Proprietary Information” means any knowledge, trade secrets (including “trade\nsecrets” as defined in Section 3426.1 of the California Civil Code), Invention Ideas, proprietary rights or proprietary information, intangible\nassets or property, and other intellectual property (whether or not copyrighted or copyrightable or patented or patentable), information and\nmaterials (including processes, trademarks, trade names, service marks, service mark applications, copyrights, mask work rights, technology,\npatents, patent applications and works of authorship), in whatever form, including electronic form, and all goodwill relating or appurtenant\nthereto, owned or licensed by Company or any of its subsidiaries, affiliates or divisions, or directly or indirectly useful in any aspect of the\nbusiness of Company or its subsidiaries, affiliates or divisions, whether or not marked as confidential or proprietary and whether developed by\nEmployee, by Company or its subsidiaries, affiliates or divisions or by others. Without limiting the foregoing, Company’s Proprietary\nInformation includes (a) the names, locations, practices and requirements of any of Company’s customers, prospective customers, vendors,\nsuppliers and personnel and any other persons having a business relationship with Company; (b) confidential or secret development or research\nwork of Company or its subsidiaries, affiliates or divisions, including information concerning any future or proposed services or products; (c)\nCompany’s accounting, cost, revenue and other financial records and documents and the contents thereof; (d) Company’s documents, contracts,\nagreements, correspondence and other similar business records; (e) confidential or secret designs, software code, know how, processes, formulae,\nplans and devices; and (f) any other confidential or secret aspect of the business of Company or its subsidiaries, affiliates or divisions.\n9.\nEmployee’s Activities. During the term of the Employment Agreement, neither Employee nor any person or entity acting with\nor on Employee’s behalf, nor any person or entity under the control of or affiliated with Employee, shall, directly or indirectly, in any way\nCompete with the Company. Employee agrees that, if Employee has any business to transact on Employee’s own account that is similar to the\nbusiness entrusted to Employee by Company, Employee shall notify Company and always give preference to Company’s business. Employee\nagrees that such restrictions are fair and reasonable. For purposes of this Agreement, “Compete” means doing any of the following: (i) selling\nproducts or services to any person or entity that was or is (at any time, including during the Term and the period when the provisions of this\nparagraph are in effect) a client or customer of Company (or its subsidiaries, affiliates or divisions) or on a list of prospective clients or customers\nof Company, or calling on, soliciting, taking away or accepting any such person or entity as a client or customer, or any attempt or offer to do any\nof the foregoing; (ii) entering into, or any attempt or offer to enter into, any business, enterprise or activity that is in any way similar to or\notherwise competitive with the business that the Company (or its subsidiaries, affiliates or divisions) conducted at any time during the Term or\nany time the provisions of this paragraph are in effect, or (iii) directly or indirectly assisting any person or entity to take or attempt or offer to\ntake any of the actions described in the foregoing clauses (i) or (ii).\nl Page 11\n10.\nRemedies.\n(a)\nThe Employee agrees that any violation or threatened violation of this Agreement will cause irreparable injury to the\nCompany, entitling the Company to obtain injunctive relief in addition to all legal remedies at its disposal.\n(b)\nIn addition to all remedies available hereunder, at law or in equity, if Employee breaches any provision of Section 8 of this\nAgreement, Company shall have the right to invoke any and all remedies provided under the California Uniform Trade Secrets Act (California\nCivil Code §§3426, et seq.) or other statutes or common law remedies of similar effect.\n(c)\nThe remedies provided to Company in this Section 10 are cumulative, and not exclusive, of any other remedies that may be\navailable to Company at law or in equity.\n11.\nNo License. Nothing in this Agreement is intended to grant any rights to the Employee under any patent, copyright or other\nproprietary rights of the Company, nor shall this Agreement grant the Employee any rights in or to Confidential Information except as expressly\nset forth herein.\n12.\nTerm. This Agreement shall survive the term of the Employment Agreement and shall continue until such time as all\nConfidential Information disclosed hereunder becomes publicly known and made generally available through no action or inaction of the\nEmployee.\n13.\nMiscellaneous. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. This\nAgreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. This document contains the\nentire agreement between the parties with respect to the subject matter hereof. Any failure to enforce any provision of this Agreement shall not\nconstitute a waiver thereof or of any other provision hereof. This Agreement may not be amended, nor any obligation waived, except by a\nwriting signed by both parties hereto.\nIN WITNESS WHEREOF, the parties hereto have executed or caused their duly authorized officers to execute this Agreement as of the\ndate first above written.\nAPOLLO MEDICAL HOLDINGS, INC.\n(“COMPANY”)\nBy /s/ Warren Hosseinion\nWarren Hosseinion\nTitle: President and Chief Executive Officer\n“EMPLOYEE”\n/s/ Noel DeWinter\nNoel DeWinter
+fb4ec1d6fa70ca625c13cc47417a0d16.pdf	jurisdiction party	EX-10 .1 3 a2092398zex-10_1.htm EXHIBIT 10.1\nQuickLinks -- Click here to rapidly navigate through this document\nExhibit 10.1\nCONFIDENTIALITY, PROPRIETARY RIGHTS\nAND NON-COMPETITION AGREEMENT\nPARTIES:\nEMPLOYER: Tanning Technology Corporation ("Tanning")\nand\nEMPLOYEE: Barrett L. Sweet ("Employee")\nAGREEMENT:\nAs a condition of employment with Tanning, Employee agrees to the following terms and conditions:\n1. Duties/Best Efforts. Employee agrees to devote his or her full professional time and attention to the business of Tanning and those duties and obligations entrusted to or required of Employee. Employee shall\nat all times perform Employee's duties faithfully, industriously and to the best of Employee's ability, experience and talent.\n2. Confidentiality, Non-Disclosure and Proprietary Rights.\n(a) Employee understands and agrees that the following classes of information (collectively "Confidential Information") related to Tanning's business or to which Employee may become exposed in the course of\nhis or her employment, whether or not in writing and whether or not formally marked, are and shall remain the exclusive and confidential property of Tanning:\n(i) Data, software, processes, client contacts, client/customer lists, service techniques, market development and expansion plans, personnel training and development methods, internal business\norganization and methods, "Inventions" (as defined below), and other technical, business and financial information;\n(ii) Information and data provided to Tanning from time to time by third parties on the understanding and condition that such data and information will be kept confidential;\n(iii) Ideas, processes, software, information, data, or other items that may be developed by Employee from time to time as work product of the employment relationship.\nAny information that is generally known to the public (other than as a result of disclosure by Employee) will not be deemed Confidential Information.\n(b) Throughout the time Employee is employed by Tanning (the "Period of Employment") , and thereafter, Employee will not use or disclose Confidential Information, and will take all reasonable precautions to\nprevent any person or entity from gaining access to any of the Confidential Information, other than as required in the performance of Employee's duties with Tanning. In order to satisfy the needs of Tanning's clients\nand customers, Employee will sign any confidentiality agreement reasonably requested by such third parties and/or Tanning. Employee understands that Employee is not permitted to use the Confidential Information\nfor his or her own purposes or benefit.\n(c) Except as required in the performance of Employee's duties to Tanning, Employee shall not duplicate in any way or remove from the work premises any property of Tanning or its business associates,\ncustomers or clients, including but not limited to any Confidential Information. At the end of the Employee's Period of Employment, Employee will return to Tanning all such property, including all copies of materials\nembodying Confidential Information, and including, without limitation, files and other information contained on paper, electronic, optical or other media, Tanning credit cards, keys and security passes, computer\nequipment and programs, cell phone, and similar items.\n(d) Employee hereby agrees to assign, and does hereby assign, to Tanning all of Employee's right, title and interest in or to any and all ideas, concepts, know-how, techniques, processes, inventions, discoveries,\ndevelopments, software, works of authorship, innovations and improvements (collectively "Inventions") conceived or made by Employee during Employee's Period of Employment, whether alone or in concert with\nothers, whether patentable or subject to potential copyrights or not, except those that the Employee developed or develops entirely on Employee's own time without using the equipment, supplies, facilities, or\nConfidential Information of Tanning, and provided that such Inventions are unrelated to the business (whether existing or proposed) of Tanning. Employee agrees to promptly inform and disclose all Inventions to\nTanning in writing, and with respect to those Inventions that Employee is required to assign to Tanning hereunder, to provide all assistance reasonably requested by Tanning in the preservation of its interests in the\nInventions (such as by making applications, executing documents, testifying, etc.) , such assistance to be provided at Tanning's expense but without additional compensation to Employee. Employee agrees that all\nsuch Inventions are Confidential Information and are the sole and absolute property of Tanning.\n(e) Employee agrees that any work or Invention created or prepared by Employee during Employee's Period of Employment which is subject to assignment under paragraph (d) above, and which is eligible for\nUnited States copyright protection or protection under the Universal Copyright Convention, the Berne Copyright Convention and/or the Buenos Aires Copyright Convention, shall be a "work made for hire" and the sole\nand absolute property of Tanning. In the event that any such work is deemed not to be a "work made for hire", Employee hereby assigns all right, title and interest in and to the copyright in such work to Tanning, and\nagrees to provide all assistance reasonably requested in the establishment, preservation and enforcement of Tanning's copyright in such work, such assistance to be provided at Tanning's expense but without any\nadditional compensation to Employee.\n(f) In the event that Tanning is unable, as a result of inability to find the Employee after a reasonably diligent effort, as a result of the death or incapacity of the Employee, or as a result of the unjustified refusal of\nEmployee, to secure Employee's signature on any documents, applications, or letters patent, copyright or other analogous protection relating to Inventions or other proprietary rights, Employee hereby irrevocably\ndesignates and appoints Tanning, by its duly authorized officers and agents as Employee's agent and attorney-in-fact, to act for and on Employee's behalf and stead to execute and file any such application or\napplications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent, copyright, or other analogous protection thereon with the same legal force and effect as if executed by\nEmployee.\n3. Non-Competition. Employee holds an executive or management position with Tanning in which Employee manages portions of the business operations of Tanning and supervises or oversees other\nemployees. Employee is considered a member of Tanning's executive or management team or a member of professional staff supporting Tanning's executive or management team, and a key employee of Tanning\nwhose efforts are integral to Tanning's business and for which Employee receives commensurately high compensation and benefits. Tanning has invested and/or will invest considerable time and money in the\ndevelopment and enhancement of Employee's education, training and skills and the knowledge of Tanning's unique business, which business is worldwide in scope and market. This enhanced skill and knowledge is\na substantial asset of Tanning and will be the principal reason that Tanning continues the employment relationship and continues to compensate Employee for Employee's work. In addition, Employee has or will\nbecome aware of Confidential Information, which Confidential Information in the hands of a competitor or potential competitor would cause substantial loss and damage to Tanning and/or its customers and clients.\nFinally, Employee will have close customer contact, which would enable Employee to divert customer trade. Employee acknowledges that Employee's employment creates a relationship of confidence and trust\nbetween Tanning and Employee with respect to the Confidential Information. Employee also acknowledges the highly competitive nature of Tanning's business. In consideration of the above matters, Employee\nagrees and acknowledges that it is reasonable, necessary and appropriate in order to protect the immediate interests of and avoid substantial injury to Tanning for Employee to accept the following restrictions on\nEmployee's right to work or be employed in a fashion which will compete with Tanning's business and type of business.\nEmployee owes a duty of loyalty to Tanning to act solely for Tanning in all matters connected with his or her employment. Employee will not, during the Period of Employment, and for one year after the\ntermination of employment for any reason, compete with Tanning by directly or indirectly, alone or in concert or cooperation with any other person or entity, taking any of the following actions: (a) owning, managing,\noperating, joining, controlling or providing services to, aiding or assisting any business entity, regardless of form, to engage in the business of, develop, seek to develop, market, produce or provide any commercial\nproduct or service in the nature of those provided by, or under development by, or otherwise compete with, Tanning during the Period of Employment; (b) serving as an employee, agent, consultant, officer, director,\nrepresentative, manager, partner, landlord or creditor of any such business entity or enterprise described in (a); or (c) inducing or attempting to induce any customer, supplier, or business relation of Tanning to cease\ndoing business with Tanning, to transfer all or any portion of their business away from Tanning or to any such business entity or enterprise described in (a), or in any other way interfering with the relationship between\nany customer, supplier or business relation and Tanning. This non-competition obligation shall apply to North America and any other country where Tanning or any of its subsidiaries or affiliates are actively engaged\nin or pursuing business during the Employee's Period of Employment. This paragraph shall not prohibit the ownership by Employee of less than 5% of any publicly traded corporation, provided that Employee is not\notherwise engaged with such corporation in any of the activities prohibited by this section 3. The time period of the restrictions set forth in this section shall be extended for any period of time that Employee is found to\nbe in violation of any provision of this section 3.\n4. Non-Solicitation. Employee shall not (whether alone or as a partner or joint venture with any other person or entity, or as an officer, director, shareholder, employee, consultant, representative, manager or\nagent of any company) during the Period of Employment, [and for one year after the termination of employment for any reason, directly or indirectly: (1) recruit, solicit, attempt to persuade, or assist in the recruitment\nor solicitation of the employment or services of any person who is employed by Tanning, or any former employee of Tanning whose employment has been terminated for less than six (6) months; or (2) solicit, directly\nor indirectly, the business of any customer, supplier, or business relation of tanning on behalf of any business competitive with Tanning's then-current business. The time period of the restrictions set forth in this\nsection shall be extended for any period of time that Employee is found to be in violation of any provision of this section 4.\n5. Reasonableness. If any court shall determine that the duration, geographic limitations, subject or scope of any restriction contained in sections 3 or 4 are unenforceable, it is the intention of the parties that\nsections 3 and 4 shall not thereby be terminated but shall be deemed amended to the extent required to make it valid and enforceable, such amendment to apply only with respect to the operation of the section in the\njurisdiction of the court that has made such adjudication.\n6. Non-Disparagement. Employee agrees that, other than as required by law, through the Period of Employment and thereafter, he or she shall not make or publish, nor cause or attempt to cause any other\nperson to make or publish, any statement, either written or oral, regarding Tanning, its directors, officers or employees, that is defamatory or disparaging or that reflects negatively upon the character, personality,\nintegrity or performance of any of them, or that is or reasonably could be expected to be damaging to the reputation of any of them. Employee further agrees that, through the Period of Employment and thereafter, he\nshall not discourage, or attempt to discourage, any person, firm, corporation or business entity from doing business with, or utilizing the services of, Tanning.\n7. Affiliated Entities. Employee understands that Tanning's business may be carried out by or in conjunction with affiliated companies or subsidiaries. Employee agrees that Employee's obligations of\nconfidentiality, non-competition and non-disparagement, shall apply equally to the Confidential Information, business and employees of Tanning's subsidiaries and affiliates. For such purposes, any reference to\nTanning in this Agreement shall also be deemed to be a reference to its subsidiaries and affiliates.\n8. Remedies for Breach of Non-Disclosure/Non-Compete/Non-Solicitation/Non-Disparagement Provisions. Employee acknowledges and agrees that the provisions of this Agreement are essential to Tanning, are\nreasonable and necessary to protect the legitimate interests of Tanning, and that the damages sustained by Tanning as a result of a breach of the provisions in this Agreement will subject Tanning to immediate,\nirreparable harm and damage, the amount of which, although substantial, cannot be reasonably ascertained, and that recovery of damages at law will not be an adequate remedy. Employee therefore agrees that\nTanning, in addition to any other remedy it may have under this Agreement or at law, shall be entitled to injunctive and other equitable relief to prevent or curtail any breach of any provision of this Agreement. In the\nevent suit or action is instituted to enforce this Agreement, including, but not limited to, suit for a temporary restraining order or preliminary or permanent injunction, the prevailing party shall be entitled to costs and\nreasonable attorneys' fees. Employee waives any right to the posting of a bond in the event of an issuance of a temporary restraining order, preliminary injunction or permanent injunction upon the issuance of such an\norder by a court of competent jurisdiction.\n9. Employee Notification Requirement. During the Period of Employment, and during any subsequent period of time that Employee is reasonably likely to be subject to a continuing obligation under the terms of\nthis Agreement, Employee will notify Tanning of any change of address, and will identify and notify Tanning of each and any new job or other business activity in which Employee plans to engage, together with the\nname and address of the new employer and a reasonably detailed description of the nature of the Employee's new position with such new employer sufficient for Tanning to be able to enforce its rights under this\nAgreement.\n10. Former Employment or Work. Employee represents, acknowledges and agrees that Employee has not brought, and will not bring with Employee, or use in the performance of Employee's duties for Tanning,\nany materials or documents of any former employer, client, person, or entity of any type, which are not generally available to the public, unless Employee has obtained written authorization for the possession and use\nof such materials or documents and provided such authorization to Tanning. Employee also understands and agrees that, in Employee's employment with Tanning, Employee shall not breach any obligation of\nconfidentiality or legal duty that Employee has to any former employer or client and agrees that Employee will fulfill any and all such obligations during Employee's Period of Employment. Employee agrees to\nindemnify and hold Tanning harmless with respect to any breach of this provision pursuant to the terms of paragraph 14 below.\n11. No Conflicts. Employee represents and warrants that, to the best of his knowledge and belief, delivery and performance of this Agreement does not violate any applicable law, regulation, order, judgment or\ndecree or any agreement to which Employee is a party or by which he or she is bound.\n12. Assignment. This Agreement shall bind and benefit the parties hereto, and to the extent necessary to carry out its intentions, the legal and personal representatives of the parties. This Agreement may not be\nassigned without the written permission of the parties, except that Tanning may assign this Agreement to any successor of Tanning by reason of reorganization, merger, consolidation, or the partial or complete sale of\nTanning's business and/or assets.\n13. Indemnification and Remedy. Each party agrees to indemnify and hold harmless the other against any and all damages, claims, losses or expenses, including reasonable attorney's fees, arising from or\nrelating to any breach of this Agreement.\n14. Waiver. Neither the delay nor failure by Tanning or Employee to enforce any provision or exercise any right under this Agreement, nor partial or single enforcement or exercise of any such provision or right,\nshall constitute a waiver of that or any other provision or right.\n15. Governing Law and Venue. This Agreement shall be interpreted and enforced under the laws of the State of Colorado applicable to contracts made to be performed entirely within Colorado. Except as\nnecessary to enforce Tanning's rights pursuant to paragraphs 2 through 8 above, to the extent that any action is brought in a court of law in connection with this Agreement, the exclusive venue for such action shall\nbe a court of appropriate jurisdiction, including the Federal courts, located in the City and County of Denver, Colorado.\n16. Survival. The provisions of this Agreement that by their nature are intended to survive, including without limitation the confidentiality, non-disclosure, non-competition, non-solicitation, non-disparagement and\nindemnification provisions, shall survive the termination of this Agreement.\n17. Arbitration. Except with respect to an action by Tanning to seek to enforce its legal or equitable rights pursuant to paragraphs 2 through 8 above, and after the exhaustion of all applicable administrative\nremedies, any controversy or claim arising out of or related to this Agreement, or Employee's employment, including disputes arising under state and federal anti-discrimination and civil rights laws, shall be resolved\nby arbitration in Denver, Colorado under the Commercial Rules of the American Arbitration Association in effect at the time such controversy or claim arises (the "Rules") by one arbitrator selected pursuant to the\nRules, except that the parties specifically authorize the Arbitrator to set a schedule for, accept the submission of and dispositively rule on any or all of the issues raised in motion(s) and supporting briefs for summary\njudgment prior to conducting any such arbitration. The award of the arbitrator shall be in writing, shall be final and binding upon the parties, and may, in appropriate circumstances, include injunctive relief. Should any\nparty fail to appear or be represented at the arbitration proceedings after due notice in accordance with the Rules, then the arbitrator may nevertheless render a decision in the absence of that party, and such decision\nshall have the same force and effect as if the absent party had been present, whether or not it shall be adverse to the interests of that party. Any award rendered hereunder may be entered for enforcement, if\nnecessary, in any court of competent jurisdiction, and the party against whom enforcement is sought shall bear the expenses, including attorneys' fees, of enforcement.\n18. Interpretation. In the event that any provision in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect\nany other provision of this Agreement, but this Agreement shall be construed as if such provision had never been contained herein. If any provision in this Agreement shall be held to be excessively broad as to\nduration, activity or subject in any jurisdiction, it shall be construed by limiting and reducing the provision that is deemed excessively broad. A limitation or reduction in the application of any provision in one jurisdiction\nshall not affect the application of the same provision in any other jurisdiction.\n19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same Agreement.\n20. Entire Agreement and Amendment. This Agreement constitutes the entire agreement between Tanning and Employee regarding its subject matter, and any verbal or written communication between the parties\nprior to the adoption of this Agreement, shall be deemed merged herein and of no further force and effect. This Agreement may only be altered or amended by a writing signed by the Employee and an authorized\nofficer of Tanning, and no officer, employee, agent or representative of Tanning has the authority to orally modify any term of this Agreement including, without limitation, the at-will nature of Employee's employment.\nAgreed to and Accepted:\nTANNING TECHNOLOGY\nCORPORATION\nEMPLOYEE\nBy:\nBy:\nPrinted Name: Melinda Hall\nPrinted Name: Barrett L. Sweet\nTitle: Director of Human Resources\nDate:\nDate: July 29, 2002\nAddress and Phone:\n4600 South Syracuse St. , Suite 1200\nDenver, CO 80237\n303-220-9944\n850 North State, Apt. 20C\nChicago, IL 60610\n312-337-6340\nQuickLinks\nExhibit 10.1	EX-10.1 3 a20923982ex-10_1.htm EXHIBIT 10.1\nQuickLinks -- Click here to rapidly navigate through this document\nExhibit 10.1\nCONFIDENTIALITY. PROPRIETARY RIGHTS\nAND NON-COMPETITION AGREEMENT\nPARTIES:\nE M P LOY E R: Tanning Technology Corporation ("Tanning")\nand\nE M P LOY E E: Barrett L. Sweet ("E mployee")\nAGREEMENT:\nAs a condition of employment with Tanning, Employee agrees to the following terms and conditions:\n1. Duties/Best Efforts. Employee agrees to devote his or her full professional time and attention to the business of Tanning and those duties and obligations entrusted to or required of Employee. Employee shall\natall times perform Employee's duties faithfully, industriously and to the best of Employee's ability, experience and talent.\n2. Confidentiality, Non-Disclosure and Proprietary Rights.\n(a) Employee understands and agrees that the following classes of information (collectively "Confidential Information") related to Tanning's business or to which Employee may become exposed in the course of\nhis or her employment, whether or not in writing and whether or not formally marked, are and shall remain the exclusive and confidential property of Tanning:\n(i) Data, software, processes, client contacts, client/customer lists, service techniques, market developmentand expansion plans, personnel training and development methods, internal business\norganization and methods, "Inventions" (as defined below), and other technical, business and financial information;\n(ii) Information and data provided to Tanning from time to time by third parties on the understanding and condition that such data and information will be kept confidential;\n(iii) Ideas, processes, software, information, data, or other items that may be developed by Employee from time to time as work product of the employment relationship.\nAny information that is generally known to the public (other than as a result of disclosure by Employee) will not be deemed Confidential Information.\n(b) Throughout the time Employee is employed by Tanning (the "Period of Employment"), and thereafter, Employee will not use or disclose Confidential Information, and will take all reasonable precautions to\nprevent any person or entity from gaining access to any of the Confidential Information, other than as required in the performance of Employee's duties with Tanning. In order to satisfy the needs ofTanning's clients\nand customers, Employee will sign any confidentiality agreement reasonably requested by such third parties and/orTanning. Employee understands that Employee is not permitted to use the Confidential Information\nfor his or her own purposes or benefit.\n(c) Except as required in the performance of Employee's duties to Tanning, Employee shall notduplicate in any way or remove from the work premises any property of Tanning or its business associates,\ncustomers or clients, including but not limited to any Confidential Information. At the end of the Employee's Period of Employment, Employee will return to Tanning all such property, including all copies of materials\nembodying Confidential Information, and including, without limitation, files and other information contained on paper, electronic, optical or other media, Tanning credit cards, keys and security passes, computer\nequipmentand programs, cell phone, and similar items.\n(d) Employee hereby agrees to assign, and does hereby assign, to Tanning all of Employee‘s right, title and interest in or to any and all ideas, concepts, know-how, techniques, processes, inventions, discoveries,\ndevelopments, software, works of authorship, innovations and improvements (collectively "Inventions") conceived or made by Employee during Employee's Period of Employment, whether alone or in concert with\nothers, whether patentable or subject to potential copyrights or not, except those that the Employee developed or develops entirely on Employee‘s own time without using the equipment, supplies, facilities, or\nConfidential Information ofTanning, and provided that such Inventions are unrelated to the business (whether existing or proposed) of Tanning. Employee agrees to promptly inform and disclose all Inventions to\nTanning in writing, and with respect to those Inventions that Employee is required to assign to Tanning hereunder, to provide all assistance reasonably requested by Tanning in the preservation of its interests in the\nInventions (such as by making applications, executing documents, testifying, etc.), such assistance to be provided at Tanning's expense but without additional compensation to Employee. Employee agrees that all\nsuch Inventions are Confidential Information and are the sole and absolute property of Tanning.\n(e) Employee agrees that any work or Invention created or prepared by Employee during Employee's Period of Employment which is subject to assignment under paragraph (d) above, and which is eligible for\nUnited States copyright protection or protection under the Universal Copyright Convention, the Berne CopyrightConvention and/or the Buenos Aires Copyright Convention, shall be a "work made for hire" and the sole\nand absolute property ofTanning. In the event that any such work is deemed not to be a "work made for hire", Employee hereby assigns all right, title and interest in and to the copyright in such work to Tanning, and\nagrees to provide all assistance reasonably requested in the establishment, presen/ation and enforcement ofTanning's copyright in such work, such assistance to be provided at Tanning's expense but withoutany\nadditional compensation to E mployee.\n(f) In the event thatTanning is unable, as a result of inability to find the Employee after a reasonably diligent effort, as a result of the death or incapacity of the Employee, or as a result of the unjustified refusal of\nEmployee, to secure Employee's signature on any documents, applications, or letters patent, copyright or other analogous protection relating to Inventions or other proprietary rights, Employee hereby irrevocably\ndesignates and appoints Tanning, by its duly authorized officers and agents as Employee's agent and attorney-in-fact, to act for and on Employee's behalf and stead to execute and file any such application or\napplications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent, copyright, or other analogous protection thereon with the same legal force and effect as if executed by\nEmployee.\n3. Non-C ompetition. Employee holds an executive or management position with Tanning in which Employee manages portions of the business operations of Tanning and supervises or oversees other\nemployees. Employee is considered a member of Tanning's executive or management team or a member of professional staff supporting Tanning‘s executive or management team, and a key employee ofTanning\nwhose efforts are integral to Tanning's business and for which Employee receives commensurately high compensation and benefits. Tanning has invested and/or will invest considerable time and money in the\ndevelopmentand enhancementof Employee's education, training and skills and the knowledge ofTanning‘s unique business, which business is worldwide in scope and market. This enhanced skill and knowledge is\na substantial asset of Tanning and will be the principal reason thatTanning continues the employment relationship and continues to compensate Employee for Employee's work. In addition, Employee has or will\nbecome aware of Confidential Information, which Confidential Information in the hands of a competitor or potential competitor would cause substantial loss and damage to Tanning and/or its customers and clients.\nFinally, Employee will have close customer contact, which would enable Employee to divert customer trade. Employee acknowledges that Employee's employment creates a relationship of confidence and trust\nbetween Tanning and Employee with respect to the Confidential Information. Employee also acknowledges the highly competitive nature of Tanning‘s business. In consideration of the above matters, Employee\nagrees and acknowledges that it is reasonable, necessary and appropriate in order to protect the immediate interests ofand avoid substantial injury to Tanning for Employee to accept the following restrictions on\nEmployee's right to work or be employed in a fashion which will compete with Tanning's business and type of business.\nEmployee owes a duty of loyalty to Tanning to act solely for Tanning in all matters connected with his or her employment. Employee will not, during the Period of Employment, and for one year after the\ntermination of employment for any reason, compete with Tanning by directly or indirectly, alone or in concert or cooperation with any other person or entity, taking any of the following actions: (a) owning, managing,\noperating, joining, controlling or providing services to, aiding or assisting any business entity, regardless of form, to engage in the business of, develop, seek to develop, market, produce or provide any commercial\nproduct or sen/ice in the nature of those provided by, or under development by, or othenNise compete with, Tanning during the Period of Employment; (b) serving as an employee, agent, consultant, officer, director,\nrepresentative, manager, partner, landlord or creditor of any such business entity or enterprise described in (a); or (c) inducing or attempting to induce any customer, supplier, or business relation ofTanning to cease\ndoing business with Tanning, to transfer all or any portion of their business away from Tanning or to any such business entity or enterprise described in (a), or in any other way interfering with the relationship between\nany customer, supplier or business relation and Tanning. This non-competition obligation shall apply to North America and any other country where Tanning or any of its subsidiaries or affiliates are actively engaged\nin or pursuing business during the Employee's Period of Employment. This paragraph shall not prohibit the ownership by Employee of less than 5% of any publicly traded corporation, provided that Employee is not\nothenNise engaged with such corporation in any of the activities prohibited by this section 3. The time period of the restrictions set forth in this section shall be extended for any period of time that Employee is found to\nbe in violation of any provision of this section 3.\n4. Non-Solicitation. Employee shall not (whether alone or as a partner orjoint venture with any other person or entity, or as an officer, director, shareholder, employee, consultant, representative, manager or\nagent ofany company) during the Period of Employment, [and for one year after the termination of employment for any reason, directly or indirectly: (1) recruit, solicit, attempt to persuade, or assist in the recruitment\nor solicitation of the employment or sen/ices of any person who is employed by Tanning, or any former employee ofTanning whose employment has been terminated for less than six (6) months; or (2) solicit, directly\nor indirectly, the business of any customer, supplier, or business relation of tanning on behalf of any business competitive with Tanning's then-current business. The time period of the restrictions set forth in this\nsection shall be extended for any period of time that Employee is found to be in violation of any provision ofthis section 4.\n5. Reasonableness. If any court shall determine that the duration, geographic limitations, subject or scope of any restriction contained in sections 3 or 4 are unenforceable, it is the intention of the parties that\nsections 3 and 4 shall not thereby be terminated but shall be deemed amended to the extent required to make it valid and enforceable, such amendment to apply only with respect to the operation of the section in the\njurisdiction of the court that has made such adjudication.\n6. Non-Disparagement. Employee agrees that, other than as required by law, through the Period of Employment and thereafter, he or she shall not make or publish, nor cause or attempt to cause any other\nperson to make or publish, any statement, either written or oral, regarding Tanning, its directors, officers or employees, that is defamatory or disparaging or that reflects negatively upon the character, personality,\nintegrity or performance ofany of them, or that is or reasonably could be expected to be damaging to the reputation ofany of them. Employee further agrees that, through the Period of Employmentand thereafter, he\nshall not discourage, or attempt to discourage, any person, firm, corporation or business entity from doing business with, or utilizing the sen/ices of, Tanning.\n7. Affiliated Entities. Employee understands thatTanning's business may be carried out by or in conjunction with affiliated companies or subsidiaries. Employee agrees that Employee's obligations of\nconfidentiality, non-competition and non-disparagement, shall apply equally to the Confidential Information, business and employees ofTanning‘s subsidiaries and affiliates. For such purposes, any reference to\nTanning in this Agreementshall also be deemed to be a reference to its subsidiaries and affiliates.\nB. Remedies for Breach of Non-Disclosure/Non-Compete/Non-Solicitation/Non-Disparagement Provisions. Employee acknowledges and agrees that the provisions of this Agreement are essential to Tanning, are\nreasonable and necessary to protect the legitimate interests of Tanning, and that the damages sustained by Tanning as a result of a breach of the provisions in this Agreement will subjectTanning to immediate,\nirreparable harm and damage, the amount of which, although substantial, cannot be reasonably ascertained, and that recovery of damages at law will not be an adequate remedy. Employee therefore agrees that\nTanning, in addition to any other remedy it may have under this Agreement or at law, shall be entitled to injunctive and other equitable relief to prevent or curtail any breach of any provision of this Agreement. In the\nevent suit or action is instituted to enforce this Agreement, including, but not limited to, suit for a temporary restraining order or preliminaiy or permanent injunction, the prevailing party shall be entitled to costs and\nreasonable attorneys' fees. Employee waives any right to the posting of a bond in the event of an issuance of a temporaiy restraining order, preliminary injunction or permanent injunction upon the issuance of such an\norder by a court of competentjurisdiction.\n9. Employee Notification Requirement. During the Period of Employment, and during any subsequent period of time that Employee is reasonably likely to be subject to a continuing obligation under the terms of\nthis Agreement, Employee will notify Tanning ofany change of address, and will identify and notify Tanning of each and any new job or other business activity in which Employee plans to engage, together with the\nname and address of the new employer and a reasonably detailed description of the nature of the Employee's new position with such new employer sufficient forTanning to be able to enforce its rights under this\nAgreement.\n10. Former Employment or Work. Employee represents, acknowledges and agrees that Employee has not brought, and will not bring with Employee, or use in the performance of Employee's duties for Tanning,\nany materials or documents of any former employer, client, person, or entity of any type, which are not generally available to the public, unless Employee has obtained written authorization for the possession and use\nofsuch materials or documents and provided such authorization to Tanning. Employee also understands and agrees that, in Employee's employment with Tanning, Employee shall not breach any obligation of\nconfidentiality or legal duty that Employee has to any former employer or client and agrees that Employee will fulfill any and all such obligations during Employee's Period of Employment. Employee agrees to\nindemnify and hold Tanning harmless with respect to any breach ofthis provision pursuant to the terms of paragraph 14 below.\n1. No Conflicts. Employee represents and warrants that, to the best of his knowledge and belief, delivery and performance of this Agreement does not violate any applicable law, regulation, order, judgment or\ncecree or any agreement to which Employee is a party or by which he or she is bound.\n2. Assignment. This Agreement shall bind and benefit the parties hereto, and to the extent necessary to carry out its intentions, the legal and personal representatives of the parties. This Agreement may not be\nassigned without the written permission of the parties, except thatTanning may assign this Agreement to any successor ofTanning by reason of reorganization, merger, consolidation, or the partial or complete sale of\n'anning‘s business and/or assets.\n3. Indemnification and Remedy. Each party agrees to indemnify and hold harmless the other againstany and all damages, claims, losses or expenses, including reasonable attorney's fees, arising from or\nrelating to any breach of this Agreement.\n4. Waiver. Neither the delay nor failure by Tanning or Employee to enforce any provision or exercise any right under this Agreement, nor partial or single enforcement or exercise of any such provision or right,\nshall constitute a waiver of that or any other provision or right.\n \n5. Governing Law and Venue. This Agreement shall be interpreted and enforced under the laws of the State ofColorado applicable to contracts made to be performed entirely within Colorado. Except as\nnecessary to enforce Tanning's rights pursuant to paragraphs 2 through 8 above, to the extent thatany action is brought in a court of law in connection with this Agreement, the exclusive venue for such action shall\nbe a court of appropriate jurisdiction, including the Federal courts, located in the City and County of Denver, Colorado.\n16. Survival. The provisions of this Agreement that by their nature are intended to survive, including without limitation the confidentiality, non-disclosure, non-competition, non-solicitation, non-disparagement and\nindemnification provisions, shall sun/ive the termination of this Agreement.\n17. Arbitration. Except with respect to an action by Tanning to seek to enforce its legal orequitable rights pursuant to paragraphs 2 through 8 above, and afterthe exhaustion ofall applicable administrative\nremedies, any controversy or claim arising out of or related to this Agreement, or Employee's employment, including disputes arising under state and federal anti-discrimination and civil rights laws, shall be resolved\nby arbitration in Denver, Colorado under the Commercial Rules of the American Arbitration Association in effect at the time such controversy or claim arises (the "Rules") by one arbitrator selected pursuant to the\nRules, except that the parties specifically authorize the Arbitrator to set a schedule for, accept the submission of and dispositively rule on any or all of the issues raised in motion(s) and supporting briefs for summary\njudgment priorto conducting any such arbitration. The award of the arbitrator shall be in writing, shall be final and binding upon the parties, and may, in appropriate circumstances, include injunctive relief. Should any\nparty fail to appear or be represented at the arbitration proceedings after due notice in accordance with the Rules, then the arbitrator may nevertheless render a decision in the absence of that party, and such decision\nshall have the same force and effect as if the absent party had been present, whether or not itshalI be adverse to the interests of that party. Any award rendered hereunder may be entered for enforcement, if\nnecessary, in any court of competentjurisdiction, and the party against whom enforcement is sought shall bear the expenses, including attorneys‘ fees, of enforcement.\n18. Interpretation. In the event thatany provision in this Agreementshall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect\nany other provision of this Agreement, but this Agreement shall be construed as if such provision had never been contained herein. Ifany provision in this Agreement shall be held to be excessively broad as to\nduration, activity orsubject in anyjurisdiction, itshalI be construed by limiting and reducing the provision thatis deemed excessively broad. A limitation or reduction in the application ofany provision in one jurisdiction\nshall not affect the application of the same provision in any otherjurisdiction.\n19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same Agreement.\n20. Entire Agreement and Amendment. This Agreement constitutes the entire agreement between Tanning and Employee regarding its subject matter, and any verbal or written communication between the parties\npriorto the adoption of this Agreement, shall be deemed merged herein and of no further force and effect. This Agreement may only be altered or amended by a writing signed by the Employee and an authorized\nofficer ofTanning, and no officer, employee, agent or representative ofTanning has the authority to orally modify any term of this Agreement including, without limitation, the at-will nature of Employee's employment.\nAgreed to and Accepted:\nTANNING TECHNOLOGY EMPLOYEE\nCORPORATION\nBy: BY:\nPrinted Name: Melinda Hall Printed Name: Barrett L. Sweet\nTitle: Director of Human Resources Date:\nDate:J uly 29,2002\nAddress and P hone:\n4600 South Syracuse St., Suite 1200 850 North State, Apt. 20C\nDenver, CO 80237 Chicago, IL 60610\n303-220-9944 312-337-6340\nQuickLinks\nExhibit 10.1	EX-10.1 3 a2092398zex-10_1.htm EXHIBIT 10.1\nQuickLinks Click here to rapidly navigate through this document\nExhibit 10.1\nCONFIDENTIALITY, PROPRIETARY RIGHTS\nAND NON-COMPETITION AGREEMENT\nPARTIES:\nEMPLOYER:Tanning Technology Corporation ("Tanning")\nand\nEMPLOYEE Barrett Sweet ("Employee")\nAGREEMENT:\nAs a condition of employment with Tanning, mployee agrees to the following terms and conditions:\n1.\nDuties/Best fforts. Employee agrees to devote his or her full professional time and attention to the business of Tanning and those duties and obligations entrusted to or required of Employee. Employee shall\nat all times perform Employee's duties faithfully, industriously and to the best of Employee's ability, experience and talent\n2.\nConfidentiality, Non-Disclosure and roprietary Rights.\n(a) Employee understands and agrees that the following classes of information (collectively "Confidential Information") related to Tanning's business or to which Employee may become exposed in the course of\nhis or her employment, whether or not in writing and whether or not formally marked, are and shall remain the exclusive and confidential property of Tanning:\n(i) Data, software, processes, client contacts, client/customer lists, service techniques, market development and expansion plans, personnel training and development methods, internal business\norganization and methods, "Inventions" (as defined below), and other technical, business and financial information;\n(ii) Information and data provided to Tanning from time to time by third parties on the understanding and condition that such data and information wil be kept confidential;\n(iii) Ideas, processes, software, information, data, or other items that may be developed by Employee from time to time as work product of the employment relationship.\nAny information that is generally known to the public (other than as a result of disclosure by Employee) wil not be deemed Confidential Information.\n(b) Throughout the time Employee is employed by Tanning (the "Period of Employment"), and thereafter, Employee will not use or disclose Confidential Information, and will take all reasonable precautions to\nprevent any person or entity from gaining access to any of the Confidential Information, other than as required in the performance of Employee's duties with Tanning. In order to satisfy the needs of Tanning's clients\nand customers, Employee wil sign any confidentiality agreement reasonably requested by such third parties and/or Tanning. Employee understands that Employee is not permitted to use the Confidential Information\nfor his or her own purposes or benefit.\n(c) Except as required in the performance of Employee's duties to Tanning, E mployee shall not duplicate in any way or remove from the work premises any property of Tanning or its business associates,\ncustomers or clients, including but not limited to any Confidential Information. At the end of the Employee's Period of Employment, Employee wil return to Tanning all such property, including all copies of materials\nembodying Confidential Information, and including, without limitation, files and other information contained on paper, electronic, optical or other media, Tanning credit cards, keys and security passes, computer\nequipment and programs, cel phone, and similar items.\n(d) Employee hereby agrees to assign, and does hereby assign, to Tanning all of Employee's right, title and interest in or to any and all ideas, concepts, know-how, techniques, processes, inventions, discoveries,\ndevelopments, software, works of authorship, innovations and improvements (collectively "Inventions") conceived or made by Employee during Employee's Period of Employment, whether alone or in concert with\nothers, whether patentable or subject to potential copyrights or not, except those that the Employee developed or develops entirely on Employee's own time without using the equipment, supplies, facilities,\nor\nConfidential Information of Tanning, and provided that such Inventions are unrelated to the business (whether existing or proposed of Tanning Employee agrees to promptly inform and disclose all Inventions to\nTanning in writing, and with respect to those Inventions that Employee is required to assign to Tanning hereunder, to provide all assistance reasonably requested by Tanning in the preservation of its interests in the\nInventions (such as by making applications, executing documents, testifying, etc.), such assistance to be provided at Tanning's expense but without additional compensation to Employee. Employee agrees that all\nsuch Inventions are Confidential Information and are the sole and absolute property of Tanning.\n(e) Employee agrees that any work or Invention created or prepared by Employee during Employee's Period of Employment which is subject to assignment under paragraph (d) above, and which is eligible for\nUnited States copyright protection or protection under the Universal Copyright Convention, the Berne Copyright Convention and/or the Buenos Aires Copyright Convention, shall be a "work made for hire" and the sole\nand absolute property of Tanning. In the event that any such work is deemed not to be a "work made for hire", E mployee hereby assigns all right, title and interest in and to the copyright in such work to Tanning, and\nagrees to provide all assistance reasonably requested in the establishment, preservation and enforcement of Tanning's copyright in such work, such assistance to be provided at Tanning's expense but without any\nadditiona compensation to Employee.\n(f) In the event tha Tanning is unable, as a result of inability to find the Employee after a reasonably diligent effort, as a result of the death or incapacity of the Employee, or as a result of the unjustified refusal\nof\nEmployee, to secure Employee's signature on any documents, applications, or letters patent, copyright or other analogous protection relating to Inventions or other proprietary rights, Employee hereby irrevocably\ndesignates and appoints Tanning, by its duly authorized officers and agents as Employee's agent and attorney-in-fact to act for and on Employee's behalf and stead to execute and file any such application or\napplications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent, copyright, or other analogous protection thereon with the same legal force and effect as if executed by\nEmployee.\n3. Non-Competition. Employee holds an executive or management position with Tanning in which Employee manages portions of the business operations of Tanning and supervises or oversees other\nemployees. Employee is considered a member of Tanning's executive or management team or a member of professional staff supporting Tanning's executive or management team, and a key employee of Tanning\nwhose efforts are integral to Tanning's business and for which Employee receives commensurately high compensation and benefits. Tanning has invested and/or will invest considerable time and money in the\ndevelopment and enhancement of Employee's education, training and skills and the knowledge of Tanning's unique business, which business is worldwide in scope and market. This enhanced skill\nand\nknowledge\nis\na substantial asset of Tanning and will be the principal reason that Tanning continues the employment relationship and continues to compensate Employee for Employee's work In addition, Employee has or will\nbecome aware of Confidential Information, which Confidential Information in the hands of a competitor or potential competitor would cause substantial loss and damage to Tanning and/or its customers and clients.\nFinally, Employee wil have close customer contact, which would enable Employee to divert customer trade. Employee acknowledges that Employee's employment creates a relationship of confidence and trust\nbetween Tanning and Employee with respect to the Confidential Information. mployee also acknowledges the highly competitive nature of Tanning's business. In consideration of the above matters, Employee\nagrees and acknowledges that it is reasonable, necessary and appropriate in order to protect the immediate interests of and avoid substantial injury to Tanning for Employee to accept the following restrictions\non\nEmployee's right to work or be employed in a fashion which will compete with Tanning's business and type of business.\nEmployee owes a duty of loyalty to Tanning to act solely for Tanning in all matters connected with his or her employment. Employee will not during the Period of Employment, and for one year after the\ntermination of employment for any reason, compete with Tanning by directly or indirectly, alone or in concert or cooperation with any other person or entity, taking any of the following actions: (a) owning, managing,\noperating, joining, controlling or providing services to, aiding or assisting any business entity, regardless of form, to engage in the business of, develop, seek to develop, market, produce or provide any commercial\nproduct or service in the nature of those provided by, or under development by, or otherwise compete with, Tanning during the Period of Employment; (b) serving as an employee, agent, consultant, officer, director,\nrepresentative, manager, partner, landlord or creditor of any such business entity or enterprise described in (a); or (c) inducing or attempting to induce any customer, supplier, or business relation of Tanning to\ncease\ndoing business with Tanning, to transfer all or any portion of their business away from Tanning or to any such business entity or enterprise described in (a), or in any other way interfering with the relationship between\nany customer, supplier or business relation and Tanning This non-competition obligation shall apply to North America and any other country where Tanning or any of its subsidiaries or affiliates are actively engaged\nin or pursuing business during the Employee's Period of Employment. This paragraph shal not prohibit the ownership by Employee of less than 5% of any publicly traded corporation, provided that mployee is not\notherwise engaged with such corporation in any of the activities prohibited by this section 3. The time period of the restrictions set forth in this section shall be extended for any period of time that Employee is found to\nbe in violation of any provision of this section 3.\n4. Non-Solicitation. Employee shal not (whether alone or as a partner or joint venture with any other person or entity, or as an officer, director, shareholder, employee, consultant, representative, manager or\nagent of any company) during the Period of Employment, [and for one year after the termination of employment for any reason, directly or indirectly: (1) recruit, solicit, attempt to persuade, or assist in the recruitment\nor\nsolicitation of the employment or services of any person who is employed by Tanning, or any former employee of Tanning whose employment has been terminated for less than six (6) months; or (2) solicit, directly\nor indirectly, the business of any customer, supplier, or business relation of tanning on behalf of any business competitive with Tanning's then-current business. The time period of the restrictions set forth in this\nsection shal be extended for any period of time that Employee is found to be in violation of any provision of this section 4.\n5.\nReasonableness. If any court shall determine that the duration, geographic limitations, subject or scope of any restriction contained in sections 3 or 4 are unenforceable, is the intention of the parties that\nsections 3 and 4 shal not thereby be terminated but shal be deemed amended to the extent required to make it valid and enforceable, such amendment to apply only with respect to the operation of the section in the\njurisdiction of the court that has made such adjudication.\n6.\nNon-Disparagement. mployee agrees that, other than as required by law, through the Period of Employment and thereafter, he or she shal not make or publish, nor cause or attempt to cause any other\nperson to make or publish, any statement, either written or oral, regarding Tanning, its directors, officers or employees, that is defamatory or disparaging or that reflects negatively upon the character, personality,\nintegrity or performance of any of them, or that is or reasonably could be expected to be damaging to the reputation of any of them. Employee further agrees that, through the Period of Employment and thereafter,\nhe\nshall not discourage, or attempt to discourage, any person, firm, corporation or business entity from doing business with, or utilizing the services of, Tanning.\n7.\nAffiliated Entities. Employee understands that Tanning's business may be carried out by or in conjunction with affiliated companies or subsidiaries. Employee agrees that mployee's obligations\nof\nconfidentiality, non-competition and non-disparagement, shall apply equally to the Confidential Information, business and employees of Tanning's subsidiaries and affiliates For such purposes, any reference\nto\nTanning in this Agreement shall also be deemed to be a reference to its subsidiaries and affiliates.\n8.\nemedies for Breach of lon-Disclosurelnon:competenlonsolicitationnon-Disparagemen Provisions. Employee acknowledges and agrees that the provisions of this Agreement are essential to Tanning, are\nreasonable and necessary to protect the legitimate interests of Tanning, and that the damages sustained by Tanning as a result of a breach of the provisions in this Agreement will subject Tanning to immediate,\nirreparable harm and damage, the amount of which, although substantial, cannot be reasonably ascertained, and that recovery of damages at law will not be an adequate remedy. Employee therefore agrees that\nTanning, in addition to any other remedy it may have under this Agreement or at law, shal be entitled to injunctive and other equitable relief to prevent or curtail any breach of any provision of this Agreement. In the\nevent sui or action is instituted to enforce this Agreement, including, but not limited to, suit for a temporary restraining order or preliminary or permanent injunction, the prevailing party shall be entitled to costs and\nreasonable attorneys fees. Employee waives any right to the posting of a bond in the event of an issuance of a temporary restraining order, preliminary injunction or permanent injunction upon the issuance of such\nan\norder by a court of competent jurisdiction.\n9. Employee Notification Requirement. During the Period of Employment, and during any subsequent period of time that Employee is reasonably likely to be subject to a continuing obligation under the terms of\nthis Agreement, Employee will notify Tanning of any change of address, and wil identify and notify Tanning of each and any new job or other business activity in which Employee plans to engage, together with\nthe\nname and address of the new employer and a reasonably detailed description of the nature of the Employee's new position with such new employer sufficient for Tanning to be able to enforce its rights under this\nAgreement.\n10. Former Employment or Work. Employee represents, acknowledges and agrees that Employee has not brought, and wil not bring with Employee, or use in the performance of Employee's duties for Tanning,\nany materials or documents of any former employer, client, person, or entity of any type, which are not generally available to the public unless Employee has obtained written authorization for the possession and use\nof such materials or documents and provided such authorization to Tanning Employee also understands and agrees that, in Employee's employment with Tanning, Employee shal not breach any obligation of\nconfidentiality or legal duty that mployee has to any former employer or client and agrees that Employee wil fulfill any and all such obligations during Employee's Period of Employment. Employee agrees to\nindemnify and hold Tanning harmless with respect to any breach of this provision pursuant to the terms of paragraph 14 below.\n11. No Conflicts. Employee represents and warrants that, to the best of his knowledge and belief, delivery and performance of this Agreement does not violate any applicable law, regulation, order, judgment or\ndecree or any agreement to which Employee is a party or by which he or she is bound.\n12. Assignment. This Agreement shall bind and benefit the parties hereto, and to the extent necessary to carry out its intentions, the legal and personal representatives of the parties. This Agreement may not be\nassigned without the written permission of the parties, except that Tanning may assign this Agreement to any successor of Tanning by reason of reorganization, merger, consolidation, or the partial or complete sale\nof\nTanning's business and/or assets.\n13.\nIndemnification and Remedy. Each party agrees to indemnify and hold harmless the other against any and all damages, claims, losses or expenses, including reasonable attorney's fees, arising from or\nrelating to any breach of this Agreement.\n14.\nWaiver. Neither the delay nor failure by Tanning or Employee to enforce any provision or exercise any right under this Agreement, nor partial or single enforcement or exercise of any such provision\nor\nright,\nshall constitute a waiver of that or any other provision or right.\n15. Governing Law and Venue. This Agreement shall be interpreted and enforced under the laws of the State of Colorado applicable to contracts made to be performed entirely within Colorado. E xcept\nas\nnecessary to enforce Tanning's rights pursuant to paragraphs 2 through 8 above, to the extent that any action is brought in a court of law in connection with this Agreement, the exclusive venue for such action shall\nbe a court of appropriate jurisdiction, including the Federal courts, located in the City and County of Denver, Colorado.\n16. Survival. The provisions of this Agreement that by their nature are intended to survive, including without limitation the confidentiality, non-disclosure, non-competition, non-solicitation, non-disparagement and\nindemnification provisions, shall survive the termination of this Agreement.\n17. Arbitration. Except with respect to an action by Tanning to seek to enforce its legal or equitable rights pursuant to paragraphs 2 through 8 above, and after the exhaustion of all applicable administrative\nremedies, any controversy or claim arising out of or related to this Agreement, or Employee's employment, including disputes arising under state and federal anti-discrimination and civil rights laws, shal be resolved\nby arbitration in Denver, Colorado under the Commercial Rules of the American Arbitration Association in effect at the time such controversy or claim arises (the "Rules") by one arbitrator selected pursuant to the\nRules, except that the parties specifically authorize the Arbitrator to set a schedule for, accept the submission of and dispositively rule on any or all of the issues raised in motion(s) and supporting briefs for summary\njudgment prior to conducting any such arbitration. The award of the arbitrator shall be in writing, shal be final and binding upon the parties, and may, in appropriate circumstances, include injunctive relief. Should any\nparty fai to appear or be represented at the arbitration proceedings after due notice in accordance with the Rules, then the arbitrator may nevertheless render a decision in the absence of that party, and such decision\nshall have the same force and effect as if the absent party had been present whether or not it shall be adverse to the interests of that party. Any award rendered hereunder may be entered for enforcement, if\nnecessary, in any court of competent jurisdiction, and the party against whom enforcement is sought shall bear the expenses, including attorneys fees, of enforcement.\n18.\nInterpretation. In the event that any provision in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shal not affect\nany other provision of this Agreement, but this Agreement shall be construed as if such provision had never been contained herein. If any provision in this Agreement shall be held to be excessively broad as to\nduration, activity or subject in any jurisdiction, it shall be construed by limiting and reducing the provision that is deemed excessively broad. A limitation or reduction in the application of any provision in one jurisdiction\nshall not affect the application of the same provision in any other jurisdiction.\n19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which shall together constitute one and the same Agreement.\n20. Entire Agreement and Amendment. This Agreement constitutes the entire agreement between Tanning and Employee regarding its subject matter, and any verbal or written communication between the parties\nprior to the adoption of this Agreement, shall be deemed merged herein and of no further force and effect. This Agreement may only be altered or amended by a writing signed by the Employee and an authorized\nofficer of Tanning, and no officer, employee, agent or representative of Tanning has the authority to orally modify any term of this Agreement including, without limitation, the at-will nature of Employee's employment\nAgreed to and Accepted:\nTANNING TECHNOLOGY\nEMPLOYEE\nCORPORATION\nBy:\nBy:\nPrinted Name: Melinda Hall\nPrinted Name: Barrett L. Sweet\nTitle: Director of Human Resources\nDate:\nDate: J uly 29 2002\nAddress and Phone:\n4600 South Syracuse St., Suite 1200\n850 North State, Apt 20C\nDenver, CO 80237\nChicago, IL 60610\n303-220-9944\n312-337-6340\nQuickLinks\nExhibit 10.1	EX-10 .1 3 a2092398zex-10_1.htm EXHIBIT 10.1\nQuickLinks -- Click here to rapidly navigate through this document\nExhibit 10.1\nCONFIDENTIALITY, PROPRIETARY RIGHTS\nAND NON-COMPETITION AGREEMENT\nPARTIES:\nEMPLOYER: Tanning Technology Corporation ("Tanning")\nand\nEMPLOYEE: Barrett L. Sweet ("Employee")\nAGREEMENT:\nAs a condition of employment with Tanning, Employee agrees to the following terms and conditions:\n1. Duties/Best Efforts. Employee agrees to devote his or her full professional time and attention to the business of Tanning and those duties and obligations entrusted to or required of Employee. Employee shall\nat all times perform Employee's duties faithfully, industriously and to the best of Employee's ability, experience and talent.\n2. Confidentiality, Non-Disclosure and Proprietary Rights.\n(a) Employee understands and agrees that the following classes of information (collectively "Confidential Information") related to Tanning's business or to which Employee may become exposed in the course of\nhis or her employment, whether or not in writing and whether or not formally marked, are and shall remain the exclusive and confidential property of Tanning:\n(i) Data, software, processes, client contacts, client/customer lists, service techniques, market development and expansion plans, personnel training and development methods, internal business\norganization and methods, "Inventions" (as defined below), and other technical, business and financial information;\n(ii) Information and data provided to Tanning from time to time by third parties on the understanding and condition that such data and information will be kept confidential;\n(iii) Ideas, processes, software, information, data, or other items that may be developed by Employee from time to time as work product of the employment relationship.\nAny information that is generally known to the public (other than as a result of disclosure by Employee) will not be deemed Confidential Information.\n(b) Throughout the time Employee is employed by Tanning (the "Period of Employment") , and thereafter, Employee will not use or disclose Confidential Information, and will take all reasonable precautions to\nprevent any person or entity from gaining access to any of the Confidential Information, other than as required in the performance of Employee's duties with Tanning. In order to satisfy the needs of Tanning's clients\nand customers, Employee will sign any confidentiality agreement reasonably requested by such third parties and/or Tanning. Employee understands that Employee is not permitted to use the Confidential Information\nfor his or her own purposes or benefit.\n(c) Except as required in the performance of Employee's duties to Tanning, Employee shall not duplicate in any way or remove from the work premises any property of Tanning or its business associates,\ncustomers or clients, including but not limited to any Confidential Information. At the end of the Employee's Period of Employment, Employee will return to Tanning all such property, including all copies of materials\nembodying Confidential Information, and including, without limitation, files and other information contained on paper, electronic, optical or other media, Tanning credit cards, keys and security passes, computer\nequipment and programs, cell phone, and similar items.\n(d) Employee hereby agrees to assign, and does hereby assign, to Tanning all of Employee's right, title and interest in or to any and all ideas, concepts, know-how, techniques, processes, inventions, discoveries,\ndevelopments, software, works of authorship, innovations and improvements (collectively "Inventions") conceived or made by Employee during Employee's Period of Employment, whether alone or in concert with\nothers, whether patentable or subject to potential copyrights or not, except those that the Employee developed or develops entirely on Employee's own time without using the equipment, supplies, facilities, or\nConfidential Information of Tanning, and provided that such Inventions are unrelated to the business (whether existing or proposed) of Tanning. Employee agrees to promptly inform and disclose all Inventions to\nTanning in writing, and with respect to those Inventions that Employee is required to assign to Tanning hereunder, to provide all assistance reasonably requested by Tanning in the preservation of its interests in the\nInventions (such as by making applications, executing documents, testifying, etc.) , such assistance to be provided at Tanning's expense but without additional compensation to Employee. Employee agrees that all\nsuch Inventions are Confidential Information and are the sole and absolute property of Tanning.\n(e) Employee agrees that any work or Invention created or prepared by Employee during Employee's Period of Employment which is subject to assignment under paragraph (d) above, and which is eligible for\nUnited States copyright protection or protection under the Universal Copyright Convention, the Berne Copyright Convention and/or the Buenos Aires Copyright Convention, shall be a "work made for hire" and the sole\nand absolute property of Tanning. In the event that any such work is deemed not to be a "work made for hire", Employee hereby assigns all right, title and interest in and to the copyright in such work to Tanning, and\nagrees to provide all assistance reasonably requested in the establishment, preservation and enforcement of Tanning's copyright in such work, such assistance to be provided at Tanning's expense but without any\nadditional compensation to Employee.\n(f) In the event that Tanning is unable, as a result of inability to find the Employee after a reasonably diligent effort, as a result of the death or incapacity of the Employee, or as a result of the unjustified refusal of\nEmployee, to secure Employee's signature on any documents, applications, or letters patent, copyright or other analogous protection relating to Inventions or other proprietary rights, Employee hereby irrevocably\ndesignates and appoints Tanning, by its duly authorized officers and agents as Employee's agent and attorney-in-fact, to act for and on Employee's behalf and stead to execute and file any such application or\napplications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent, copyright, or other analogous protection thereon with the same legal force and effect as if executed by\nEmployee.\n3. Non-Competition. Employee holds an executive or management position with Tanning in which Employee manages portions of the business operations of Tanning and supervises or oversees other\nemployees. Employee is considered a member of Tanning's executive or management team or a member of professional staff supporting Tanning's executive or management team, and a key employee of Tanning\nwhose efforts are integral to Tanning's business and for which Employee receives commensurately high compensation and benefits. Tanning has invested and/or will invest considerable time and money in the\ndevelopment and enhancement of Employee's education, training and skills and the knowledge of Tanning's unique business, which business is worldwide in scope and market. This enhanced skill and knowledge is\na substantial asset of Tanning and will be the principal reason that Tanning continues the employment relationship and continues to compensate Employee for Employee's work. In addition, Employee has or will\nbecome aware of Confidential Information, which Confidential Information in the hands of a competitor or potential competitor would cause substantial loss and damage to Tanning and/or its customers and clients.\nFinally, Employee will have close customer contact, which would enable Employee to divert customer trade. Employee acknowledges that Employee's employment creates a relationship of confidence and trust\nbetween Tanning and Employee with respect to the Confidential Information. Employee also acknowledges the highly competitive nature of Tanning's business. In consideration of the above matters, Employee\nagrees and acknowledges that it is reasonable, necessary and appropriate in order to protect the immediate interests of and avoid substantial injury to Tanning for Employee to accept the following restrictions on\nEmployee's right to work or be employed in a fashion which will compete with Tanning's business and type of business.\nEmployee owes a duty of loyalty to Tanning to act solely for Tanning in all matters connected with his or her employment. Employee will not, during the Period of Employment, and for one year after the\ntermination of employment for any reason, compete with Tanning by directly or indirectly, alone or in concert or cooperation with any other person or entity, taking any of the following actions: (a) owning, managing,\noperating, joining, controlling or providing services to, aiding or assisting any business entity, regardless of form, to engage in the business of, develop, seek to develop, market, produce or provide any commercial\nproduct or service in the nature of those provided by, or under development by, or otherwise compete with, Tanning during the Period of Employment; (b) serving as an employee, agent, consultant, officer, director,\nrepresentative, manager, partner, landlord or creditor of any such business entity or enterprise described in (a); or (c) inducing or attempting to induce any customer, supplier, or business relation of Tanning to cease\ndoing business with Tanning, to transfer all or any portion of their business away from Tanning or to any such business entity or enterprise described in (a), or in any other way interfering with the relationship between\nany customer, supplier or business relation and Tanning. This non-competition obligation shall apply to North America and any other country where Tanning or any of its subsidiaries or affiliates are actively engaged\nin or pursuing business during the Employee's Period of Employment. This paragraph shall not prohibit the ownership by Employee of less than 5% of any publicly traded corporation, provided that Employee is not\notherwise engaged with such corporation in any of the activities prohibited by this section 3. The time period of the restrictions set forth in this section shall be extended for any period of time that Employee is found to\nbe in violation of any provision of this section 3.\n4. Non-Solicitation. Employee shall not (whether alone or as a partner or joint venture with any other person or entity, or as an officer, director, shareholder, employee, consultant, representative, manager or\nagent of any company) during the Period of Employment, [and for one year after the termination of employment for any reason, directly or indirectly: (1) recruit, solicit, attempt to persuade, or assist in the recruitment\nor solicitation of the employment or services of any person who is employed by Tanning, or any former employee of Tanning whose employment has been terminated for less than six (6) months; or (2) solicit, directly\nor indirectly, the business of any customer, supplier, or business relation of tanning on behalf of any business competitive with Tanning's then-current business. The time period of the restrictions set forth in this\nsection shall be extended for any period of time that Employee is found to be in violation of any provision of this section 4.\n5. Reasonableness. If any court shall determine that the duration, geographic limitations, subject or scope of any restriction contained in sections 3 or 4 are unenforceable, it is the intention of the parties that\nsections 3 and 4 shall not thereby be terminated but shall be deemed amended to the extent required to make it valid and enforceable, such amendment to apply only with respect to the operation of the section in the\njurisdiction of the court that has made such adjudication.\n6. Non-Disparagement. Employee agrees that, other than as required by law, through the Period of Employment and thereafter, he or she shall not make or publish, nor cause or attempt to cause any other\nperson to make or publish, any statement, either written or oral, regarding Tanning, its directors, officers or employees, that is defamatory or disparaging or that reflects negatively upon the character, personality,\nintegrity or performance of any of them, or that is or reasonably could be expected to be damaging to the reputation of any of them. Employee further agrees that, through the Period of Employment and thereafter, he\nshall not discourage, or attempt to discourage, any person, firm, corporation or business entity from doing business with, or utilizing the services of, Tanning.\n7. Affiliated Entities. Employee understands that Tanning's business may be carried out by or in conjunction with affiliated companies or subsidiaries. Employee agrees that Employee's obligations of\nconfidentiality, non-competition and non-disparagement, shall apply equally to the Confidential Information, business and employees of Tanning's subsidiaries and affiliates. For such purposes, any reference to\nTanning in this Agreement shall also be deemed to be a reference to its subsidiaries and affiliates.\n8. Remedies for Breach of Non-Disclosure/Non-Compete/Non-Solicitation/Non-Disparagement Provisions. Employee acknowledges and agrees that the provisions of this Agreement are essential to Tanning, are\nreasonable and necessary to protect the legitimate interests of Tanning, and that the damages sustained by Tanning as a result of a breach of the provisions in this Agreement will subject Tanning to immediate,\nirreparable harm and damage, the amount of which, although substantial, cannot be reasonably ascertained, and that recovery of damages at law will not be an adequate remedy. Employee therefore agrees that\nTanning, in addition to any other remedy it may have under this Agreement or at law, shall be entitled to injunctive and other equitable relief to prevent or curtail any breach of any provision of this Agreement. In the\nevent suit or action is instituted to enforce this Agreement, including, but not limited to, suit for a temporary restraining order or preliminary or permanent injunction, the prevailing party shall be entitled to costs and\nreasonable attorneys' fees. Employee waives any right to the posting of a bond in the event of an issuance of a temporary restraining order, preliminary injunction or permanent injunction upon the issuance of such an\norder by a court of competent jurisdiction.\n9. Employee Notification Requirement. During the Period of Employment, and during any subsequent period of time that Employee is reasonably likely to be subject to a continuing obligation under the terms of\nthis Agreement, Employee will notify Tanning of any change of address, and will identify and notify Tanning of each and any new job or other business activity in which Employee plans to engage, together with the\nname and address of the new employer and a reasonably detailed description of the nature of the Employee's new position with such new employer sufficient for Tanning to be able to enforce its rights under this\nAgreement.\n10. Former Employment or Work. Employee represents, acknowledges and agrees that Employee has not brought, and will not bring with Employee, or use in the performance of Employee's duties for Tanning,\nany materials or documents of any former employer, client, person, or entity of any type, which are not generally available to the public, unless Employee has obtained written authorization for the possession and use\nof such materials or documents and provided such authorization to Tanning. Employee also understands and agrees that, in Employee's employment with Tanning, Employee shall not breach any obligation of\nconfidentiality or legal duty that Employee has to any former employer or client and agrees that Employee will fulfill any and all such obligations during Employee's Period of Employment. Employee agrees to\nindemnify and hold Tanning harmless with respect to any breach of this provision pursuant to the terms of paragraph 14 below.\n11. No Conflicts. Employee represents and warrants that, to the best of his knowledge and belief, delivery and performance of this Agreement does not violate any applicable law, regulation, order, judgment or\ndecree or any agreement to which Employee is a party or by which he or she is bound.\n12. Assignment. This Agreement shall bind and benefit the parties hereto, and to the extent necessary to carry out its intentions, the legal and personal representatives of the parties. This Agreement may not be\nassigned without the written permission of the parties, except that Tanning may assign this Agreement to any successor of Tanning by reason of reorganization, merger, consolidation, or the partial or complete sale of\nTanning's business and/or assets.\n13. Indemnification and Remedy. Each party agrees to indemnify and hold harmless the other against any and all damages, claims, losses or expenses, including reasonable attorney's fees, arising from or\nrelating to any breach of this Agreement.\n14. Waiver. Neither the delay nor failure by Tanning or Employee to enforce any provision or exercise any right under this Agreement, nor partial or single enforcement or exercise of any such provision or right,\nshall constitute a waiver of that or any other provision or right.\n15. Governing Law and Venue. This Agreement shall be interpreted and enforced under the laws of the State of Colorado applicable to contracts made to be performed entirely within Colorado. Except as\nnecessary to enforce Tanning's rights pursuant to paragraphs 2 through 8 above, to the extent that any action is brought in a court of law in connection with this Agreement, the exclusive venue for such action shall\nbe a court of appropriate jurisdiction, including the Federal courts, located in the City and County of Denver, Colorado.\n16. Survival. The provisions of this Agreement that by their nature are intended to survive, including without limitation the confidentiality, non-disclosure, non-competition, non-solicitation, non-disparagement and\nindemnification provisions, shall survive the termination of this Agreement.\n17. Arbitration. Except with respect to an action by Tanning to seek to enforce its legal or equitable rights pursuant to paragraphs 2 through 8 above, and after the exhaustion of all applicable administrative\nremedies, any controversy or claim arising out of or related to this Agreement, or Employee's employment, including disputes arising under state and federal anti-discrimination and civil rights laws, shall be resolved\nby arbitration in Denver, Colorado under the Commercial Rules of the American Arbitration Association in effect at the time such controversy or claim arises (the "Rules") by one arbitrator selected pursuant to the\nRules, except that the parties specifically authorize the Arbitrator to set a schedule for, accept the submission of and dispositively rule on any or all of the issues raised in motion(s) and supporting briefs for summary\njudgment prior to conducting any such arbitration. The award of the arbitrator shall be in writing, shall be final and binding upon the parties, and may, in appropriate circumstances, include injunctive relief. Should any\nparty fail to appear or be represented at the arbitration proceedings after due notice in accordance with the Rules, then the arbitrator may nevertheless render a decision in the absence of that party, and such decision\nshall have the same force and effect as if the absent party had been present, whether or not it shall be adverse to the interests of that party. Any award rendered hereunder may be entered for enforcement, if\nnecessary, in any court of competent jurisdiction, and the party against whom enforcement is sought shall bear the expenses, including attorneys' fees, of enforcement.\n18. Interpretation. In the event that any provision in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect\nany other provision of this Agreement, but this Agreement shall be construed as if such provision had never been contained herein. If any provision in this Agreement shall be held to be excessively broad as to\nduration, activity or subject in any jurisdiction, it shall be construed by limiting and reducing the provision that is deemed excessively broad. A limitation or reduction in the application of any provision in one jurisdiction\nshall not affect the application of the same provision in any other jurisdiction.\n19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same Agreement.\n20. Entire Agreement and Amendment. This Agreement constitutes the entire agreement between Tanning and Employee regarding its subject matter, and any verbal or written communication between the parties\nprior to the adoption of this Agreement, shall be deemed merged herein and of no further force and effect. This Agreement may only be altered or amended by a writing signed by the Employee and an authorized\nofficer of Tanning, and no officer, employee, agent or representative of Tanning has the authority to orally modify any term of this Agreement including, without limitation, the at-will nature of Employee's employment.\nAgreed to and Accepted:\nTANNING TECHNOLOGY\nCORPORATION\nEMPLOYEE\nBy:\nBy:\nPrinted Name: Melinda Hall\nPrinted Name: Barrett L. Sweet\nTitle: Director of Human Resources\nDate:\nDate: July 29, 2002\nAddress and Phone:\n4600 South Syracuse St. , Suite 1200\nDenver, CO 80237\n303-220-9944\n850 North State, Apt. 20C\nChicago, IL 60610\n312-337-6340\nQuickLinks\nExhibit 10.1
+ff1acd5eeeed81b541c889eefa0753a7.pdf	effective_date jurisdiction party term	EX-10 .2 3 stwa_8k-ex1002.htm MUTUAL CONFIDENTIALITY AGREEMENT\nEXHIBIT 10.2\nKM Contract #CA-KMCC-2014-012\nMUTUAL CONFIDENTIALITY AGREEMENT\nThe Mutual Confidentiality Agreement (“Agreement”) is entered into this 15th day of July, 2014 (the “Effective Date”) by and between\nKinder Morgan Crude & Condensate LLC (“KMCC”) and Save the World Air, Inc. (“STWA”).\nWHEREAS, KMCC and STWA (hereinafter each individually referred to as a “Party” and collectively referred to as (the “Parties”)\ncontemplate exchanging information and holding discussions concerning a mutually beneficial business relationship (the “Transaction”):\nWHEREAS, the Parties have entered into this Agreement in order to ensure the confidentiality of all such information and the\nconfidentiality of the dicussions between the Parties regarding the Transaction and to prevent the disclosure of any such information to third\nparties except in accordance with the terms of this Agreement:\nWHEREAS, the Parties recognize that each other’s business involves specialized and proprietary knowledge, information, methods,\nprocesses, techniques and skills peculiar to their security and growth; and\nWHEREAS, the Discloser (as Defined below) would not provide such information without the protections set forth in this Agreement.\nNOW, THEREFORE, in consideration of the mutual agreements of the Parties contained, and for other good and valuable consideration,\nthe receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:\n1. Confidentiality. As used herein, (i) “Discloser” means any Confidential Information disclosed by either Party to the other Party; (ii)\n“Recipient” means any Confidential Information received by either Party from the other Party; and (iii) “Confidential Information” means any\nand all proprietary and non-public information regarding the Transaction or concerning the Discloser (whether prepared by the Discloser, its\nadvisors or otherwise and irrespective of the form of communication) furnished to Recipient or to its officers, directors, members, partners,\nemployees, affiliates, attorneys, agents, consultants, assigns, joint ventures, developers, vendors, investors, researchers, representatives or other\nsimilarly situated persons (collectively, “Representatives”) now or in the future by or on behalf of the Discloser, including but not limited to\ndocuments and information, oral or written, tangible or intangible, electronic or otherwise, generated or collected by Recipient which contain,\nreflect or are derived from any other Confidential Information furnished by or on behalf of the Discloser. Confidential Information shall include,\nwithout limitation, feature and technical specifications, transportation service proposals, draft transportation agreements, drawings, data, designs,\ncomputer programs, patent applications, documentation, marketing forecasts, research and development, financial data, consumer data, product\ndata, study data, test results, or other technical or business information. The fact that the Parties have entered into this Agreement and are\nengaged in discussions with respect to the Transaction shall be considered Confidential Information. Confidential Information does not include\n(i) information which is or becomes generally known other than as a result of disclosure hereunder, (ii) information which was within Recipient’s\nknowledge prior to its being furnished to Recipient or its Representatives by or on behalf of the Discloser, provided that Recipient is not aware of\nthe source of such information being bound by a confidentiality or nondisclosure agreement with the Discloser with respect to such information,\n(iii) information which lawfully becomes available to a Recipient or its Representatives on a non-confidential basis from a source other than\nDiscloser, provided that such source is not bound by a confidentiality agreement with the Discloser known to the Recipient or otherwise\nprohibited from transmitting the information to the Recipient by a contractual, legal or fiduciary obligation known to the Recipient; or (iv)\ninformation which is independently developed by a Recipient or its Representatives without use of the Confidential Information or breach of this\nAgreement.\n1\n2. Consideration of Use. In consideration of the furnishing of Confidential Information by the Discloser, Recipient agrees that it will\nhold the Confidential Information in strict confidence and will use the Confidential Information only in connection with the negotiation and\nconsummation of the Transaction. Recipient will protect the confidentiality of the Discloser’s Confidential Information with at least the same\nlevel of care that it protects the confidentiality of its own similar confidential and proprietary information, and using no less than reasonable care.\n3. Transmission of Confidential Information. Recipient shall transmit Confidential Information only to such of its Representatives as\nneed to know the Confidential Information in order to negotiate and consummate the Transaction, if any, between the parties, and only then after\nsuch Representatives have been informed of this Agreement. Recipient shall be liable for the breach of the Agreement by any of their\nRepresentatives and agree, at their sole expense, to take all reasonable measures to restrain their Representatives from prohibited or unauthorized\ndisclosure or use of any Confidential Information. Recipient shall immediately notify the Discloser in the event of any loss or unauthorized\ndisclosure of any Confidential Information.\n4. Disclosure. If Recipient or any of its Representatives receive a request to disclose any part of the Confidential Information under the\nterms of a subpoena or order issued by a court or other governmental body with the power to compel compliance with its requests. Recipient\nshall (i) notify Discloser immediately of the existence, terms and circumstances surrounding the request (unless prohibited by law to do so), and\n(ii) consult with Discloser on legally available steps to resist or narrow such requests. If disclosure of such Confidential Information is required\nto prevent Recipient from being held in contempt or subject to other penalty, Recipient shall (a) furnish only such portion of the Confidential\nInformation as, in the written opinion of counsel satisfactory to Discloser. Recipient is legally compelled to disclose, and (b) use its best efforts to\nobtain an order or other reliable assurance that confidential treatment will be accorded to the disclosed Confidential Information.\nNotwithstanding any provision herein to the contrary, either Party may disclose the Confidential Information in filings with the United States\nSecurities and Exchange Commission (“SEC”) as may be required by SEC rules and regulations. In addition, subject to the written authorization\nof KMCC or STWA, as the case may be, any data acquired by KMCC or STWA, in furtherance or as a result of that certain Equipment\nLease/Option to Purchase Agreement between KMCC and STWA of even date herewith, may be shared and discussed with, in summary form\nonly, the customers, potential customers, vendors, potential vendors, contractual relationships or potential contractual relationships (collectively,\n“Third Parties”) of KMCC or STWA, provided such Third Parties are informed of this Agreement and such Third Parties agree, in writing, to\nhold the data in strict confidence and to use the data only to evaluate a transaction with KMCC or STWA, as the case may be.\n5. Property. All information furnished by Discloser shall remain Discloser’s property. Upon termination or expiration of this Agreement,\nor upon written request of Discloser or in the event the Parties decide not to proceed with the Transaction, Recipient shall promptly destroy or, at\nDiscloser’s election, redeliver to Discloser, all copies of the Confidential Information, destroy any reports, analyses, notes or other information\n(“Notes”) and deliver to the Discloser a certificate executed by one of Recipient’s duly authorized officers indicating that the requirements of this\nsentence have been satisfied in full. Notwithstanding the return or destruction of Confidential Information and Notes. Recipient and their\nrepresentatives will continue to be bound by Recipient’s obligations of confidentiality and other obligations hereunder. Notwithstanding anything\nherein to the contrary Recipient shall be entitled to retain one archival copy of the Confidential Information and Notes related thereto for archival\nlegal and compliance purposes. For any retained Confidential Information and Notes the Recipient will take appropriate measures to preserve the\ncontinuing confidentiality of such as if they were the Recipient’s own confidential information. The Recipient shall not be obligated to search for\nand destroy, delete or erase Confidential Information or Notes or any analyses, compilations, studies or other documents which have been\nprepared by the Recipient and which reflect or are based upon any Confidential Information if such are maintained as part of a back-up or\narchival system of records and electronic information systems (“EIS”) as part of the routine maintenance and operation of such EIS. EIS shall\ninclude but not be limited to computer systems, e-mail, instant messaging, PDAs and smartphones, or voicemail systems. The Recipient will take\nappropriate measures to preserve the continuing confidentiality of such information that is maintained in the EIS as if it was the Recipient’s own\nconfidential information. No positions set forth in this paragraph shall abrogate any of Recipient’s duties or obligations under this Agreement\nwith respect to Confidential Information.\n2\n6. Warranties. The Parties recognize and agree that nothing contained in this Agreement shall be construed as granting any property\nrights, by license or otherwise, to any Confidential Information disclosed pursuant to this Agreement, or to any invention or any patent,\ncopyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Recipient\nshall not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential\nInformation. THE INFORMATION IS PROVIDED “AS IS” AND THERE ARE NO REPRESENTATIONS OR WARRANTIES,\nEXPRESS OR IMPLIED, WITH RESPECT TO THE INFORMATION, INCLUDING BUT NOT LIMITED TO A WARRANTY\nAGAINST INFRINGEMENT, ACCURACY, OR COMPLETENESS.\n7. Breach. Recipient acknowledges and agrees that, in the event of any breach of this Agreement, Discloser would be irreparably and\nimmediately harmed and could not be made whole by monetary damages. Accordingly, it is agreed that, in addition to any other remedy to which\nit may be entitled at law or in equity, Discloser is entitled to seek and obtain an injunction or injunctions (without the posting of any bond and\nwithout proof of actual damages) to prevent the breach of this Agreement and/or to compel specific performance of its terms.\n8. Inducement. Confidential Information provided to Recipient does not and is not intended to represent an inducement by Discloser or\na commitment by Discloser to enter into any business relationship with Recipient or with any other entity. If some or all of the Parties desire to\npursue business opportunities, the Parties will execute a separate written agreement to govern such business relationship.\n9. Reproduction. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this\nAgreement. Any reproduction of any Confidential Information shall remain the property of the Discloser and shall contain any and all\nconfidential or proprietary notices or legends which may appear on the original, unless otherwise authorized in writing by the Discloser.\n10. Termination. This Agreement shall continue for a period of two (2) years beyond the Effective Date. Any Party may terminate this\nAgreement at any time upon thirty days written notice to the other Party; provided that, notwithstanding any termination of this Agreement, all\nthe obligations of Recipient under this Agreement with respect to any Confidential Information received prior to termination shall survive\ntermination and continue for three (3) years from Effective Date.\n11. Severability. If one or more of the terms of this Agreement are held to be invalid or unenforceable in any respect, the same will be\nfully severed from and will not affect the validity or enforceability of the remaining provisions of this Agreement, and a provision as similar in\nits economic and legal effects as the severed provision will be substituted for the severed provision.\n3\n12. Assignment and Transfer. The Parties will not assign or transfer any rights or obligations under this Agreement without the prior\nwritten consent of the other Parties and any assignment in violation of this Agreement shall be void. This Agreement shall benefit and be binding\nupon the Parties to this Agreement and their respective successors and permitted assigns.\n13. Entirety and Amendment. This Agreement embodies the entire understanding between the Parties respecting the subject matter of\nthis Agreement and supersedes any and all prior negotiations, correspondence, understandings and agreements between the Parties respecting the\nuse and disclosure of Confidential Information. This Agreement may not be modified except by writing signed by both Parties hereto. Either the\noriginal or copies, including facsimile or e-mail transmissions, of this Agreement, may be executed in counterparts, each of which shall be an\noriginal as against any Party whose signature appears on such counterpart and all of which together shall constitute one and the same instrument.\n14. Non-Waiver. The failure of any Party to demand strict performance of any or all of the terms of this Agreement, or to exercise any\nor all rights conferred by this Agreement, shall not be construed as a waiver or relinquishment of that party’s right to assert or rely upon any such\nright in the future.\n15. Press Releases; Public Announcements. Neither Party hereto shall make any press release, public announcement or any similar\ndisclosure or reference with respect to this Agreement or the Transaction without the prior review thereof and reasonable consent thereto by the\nother Party.\n16. Recitals. The recitals set forth above are expressly made a part of this Agreement.\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized officers or representatives as\nof the date first stated above.\nKINDER MORGAN CRUDE &\nSAVE THE WORLD AIR, INC.\nCONDENSATE LLC\nBy:\n/s/ James Holland\nBy:\n/s/ Gregg Bigger\nName: James Holland\nName: Gregg Bigger\nTitle: VP Technical Services\nTitle: CEO & President\n4	EX-10.2 3 stwa_8k-ex1002.htm MUTUAL CONFIDENTIALITY AGREEMENT\nEXHIBIT 10.2\nKM Contract #CA-KMCC-2014-012\nMUTUAL CONFIDENTIALITY AGREEMENT\nThe Mutual Confidentiality Agreement (“Agreement”) is entered into this 15th day of July, 2014 (the “Effective Date”) by and between\nKinder Morgan Crude & Condensate LL.C (“KMCC”) and Save the World Air, Inc. (“STWA”).\nWHEREAS, KMCC and STWA (hereinafter each individually referred to as a “Party” and collectively referred to as (the “Parties)\ncontemplate exchanging information and holding discussions concerning a mutually beneficial business relationship (the “Transaction”):\nWHEREAS, the Parties have entered into this Agreement in order to ensure the confidentiality of all such information and the\nconfidentiality of the dicussions between the Parties regarding the Transaction and to prevent the disclosure of any such information to third\nparties except in accordance with the terms of this Agreement:\nWHEREAS, the Parties recognize that each other’s business involves specialized and proprietary knowledge, information, methods,\nprocesses, techniques and skills peculiar to their security and growth; and\nWHEREAS, the Discloser (as Defined below) would not provide such information without the protections set forth in this Agreement.\nNOW, THEREFORE, in consideration of the mutual agreements of the Parties contained, and for other good and valuable consideration,\nthe receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:\n1. Confidentiality. As used herein, (i) “Discloser” means any Confidential Information disclosed by either Party to the other Party; (ii)\n“Recipient” means any Confidential Information received by either Party from the other Party; and (iii) “Confidential Information” means any\nand all proprietary and non-public information regarding the Transaction or concerning the Discloser (whether prepared by the Discloser, its\nadvisors or otherwise and irrespective of the form of communication) furnished to Recipient or to its officers, directors, members, partners,\nemployees, affiliates, attorneys, agents, consultants, assigns, joint ventures, developers, vendors, investors, researchers, representatives or other\nsimilarly situated persons (collectively, “Representatives”) now or in the future by or on behalf of the Discloser, including but not limited to\ndocuments and information, oral or written, tangible or intangible, electronic or otherwise, generated or collected by Recipient which contain,\nreflect or are derived from any other Confidential Information furnished by or on behalf of the Discloser. Confidential Information shall include,\nwithout limitation, feature and technical specifications, transportation service proposals, draft transportation agreements, drawings, data, designs,\ncomputer programs, patent applications, documentation, marketing forecasts, research and development, financial data, consumer data, product\ndata, study data, test results, or other technical or business information. The fact that the Parties have entered into this Agreement and are\nengaged in discussions with respect to the Transaction shall be considered Confidential Information. Confidential Information does not include\n(i) information which is or becomes generally known other than as a result of disclosure hereunder, (ii) information which was within Recipient’s\nknowledge prior to its being furnished to Recipient or its Representatives by or on behalf of the Discloser, provided that Recipient is not aware of\nthe source of such information being bound by a confidentiality or nondisclosure agreement with the Discloser with respect to such information,\n(iii) information which lawfully becomes available to a Recipient or its Representatives on a non-confidential basis from a source other than\nDiscloser, provided that such source is not bound by a confidentiality agreement with the Discloser known to the Recipient or otherwise\nprohibited from transmitting the information to the Recipient by a contractual, legal or fiduciary obligation known to the Recipient; or (iv)\ninformation which is independently developed by a Recipient or its Representatives without use of the Confidential Information or breach of this\nAgreement.\n2. Consideration of Use. In consideration of the furnishing of Confidential Information by the Discloser, Recipient agrees that it will\nhold the Confidential Information in strict confidence and will use the Confidential Information only in connection with the negotiation and\nconsummation of the Transaction. Recipient will protect the confidentiality of the Discloser’s Confidential Information with at least the same\nlevel of care that it protects the confidentiality of its own similar confidential and proprietary information, and using no less than reasonable care.\n3. Transmission of Confidential Information. Recipient shall transmit Confidential Information only to such of its Representatives as\nneed to know the Confidential Information in order to negotiate and consummate the Transaction, if any, between the parties, and only then after\nsuch Representatives have been informed of this Agreement. Recipient shall be liable for the breach of the Agreement by any of their\nRepresentatives and agree, at their sole expense, to take all reasonable measures to restrain their Representatives from prohibited or unauthorized\ndisclosure or use of any Confidential Information. Recipient shall immediately notify the Discloser in the event of any loss or unauthorized\ndisclosure of any Confidential Information.\n4. Disclosure. If Recipient or any of its Representatives receive a request to disclose any part of the Confidential Information under the\nterms of a subpoena or order issued by a court or other governmental body with the power to compel compliance with its requests. Recipient\nshall (i) notify Discloser immediately of the existence, terms and circumstances surrounding the request (unless prohibited by law to do so), and\n(ii) consult with Discloser on legally available steps to resist or narrow such requests. If disclosure of such Confidential Information is required\nto prevent Recipient from being held in contempt or subject to other penalty, Recipient shall (a) furnish only such portion of the Confidential\nInformation as, in the written opinion of counsel satisfactory to Discloser. Recipient is legally compelled to disclose, and (b) use its best efforts to\nobtain an order or other reliable assurance that confidential treatment will be accorded to the disclosed Confidential Information.\nNotwithstanding any provision herein to the contrary, either Party may disclose the Confidential Information in filings with the United States\nSecurities and Exchange Commission (“SEC”) as may be required by SEC rules and regulations. In addition, subject to the written authorization\nof KMCC or STWA, as the case may be, any data acquired by KMCC or STWA, in furtherance or as a result of that certain Equipment\nLease/Option to Purchase Agreement between KMCC and STWA of even date herewith, may be shared and discussed with, in summary form\nonly, the customers, potential customers, vendors, potential vendors, contractual relationships or potential contractual relationships (collectively,\n“Third Parties”) of KMCC or STWA, provided such Third Parties are informed of this Agreement and such Third Parties agree, in writing, to\nhold the data in strict confidence and to use the data only to evaluate a transaction with KMCC or STWA, as the case may be.\n5. Property. All information furnished by Discloser shall remain Discloser’s property. Upon termination or expiration of this Agreement,\nor upon written request of Discloser or in the event the Parties decide not to proceed with the Transaction, Recipient shall promptly destroy or, at\nDiscloser’s election, redeliver to Discloser, all copies of the Confidential Information, destroy any reports, analyses, notes or other information\n(“Notes™) and deliver to the Discloser a certificate executed by one of Recipient’s duly authorized officers indicating that the requirements of this\nsentence have been satisfied in full. Notwithstanding the return or destruction of Confidential Information and Notes. Recipient and their\nrepresentatives will continue to be bound by Recipient’s obligations of confidentiality and other obligations hereunder. Notwithstanding anything\nherein to the contrary Recipient shall be entitled to retain one archival copy of the Confidential Information and Notes related thereto for archival\nlegal and compliance purposes. For any retained Confidential Information and Notes the Recipient will take appropriate measures to preserve the\ncontinuing confidentiality of such as if they were the Recipient’s own confidential information. The Recipient shall not be obligated to search for\nand destroy, delete or erase Confidential Information or Notes or any analyses, compilations, studies or other documents which have been\nprepared by the Recipient and which reflect or are based upon any Confidential Information if such are maintained as part of a back-up or\narchival system of records and electronic information systems (“EIS”) as part of the routine maintenance and operation of such EIS. EIS shall\ninclude but not be limited to computer systems, e-mail, instant messaging, PDAs and smartphones, or voicemail systems. The Recipient will take\nappropriate measures to preserve the continuing confidentiality of such information that is maintained in the EIS as if it was the Recipient’s own\nconfidential information. No positions set forth in this paragraph shall abrogate any of Recipient’s duties or obligations under this Agreement\nwith respect to Confidential Information.\n6. Warranties. The Parties recognize and agree that nothing contained in this Agreement shall be construed as granting any property\nrights, by license or otherwise, to any Confidential Information disclosed pursuant to this Agreement, or to any invention or any patent,\ncopyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Recipient\nshall not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential\nInformation. THE INFORMATION IS PROVIDED “AS IS” AND THERE ARE NO REPRESENTATIONS OR WARRANTIES,\nEXPRESS OR IMPLIED, WITH RESPECT TO THE INFORMATION, INCLUDING BUT NOT LIMITED TO A WARRANTY\nAGAINST INFRINGEMENT, ACCURACY, OR COMPLETENESS.\n7. Breach. Recipient acknowledges and agrees that, in the event of any breach of this Agreement, Discloser would be irreparably and\nimmediately harmed and could not be made whole by monetary damages. Accordingly, it is agreed that, in addition to any other remedy to which\nit may be entitled at law or in equity, Discloser is entitled to seek and obtain an injunction or injunctions (without the posting of any bond and\nwithout proof of actual damages) to prevent the breach of this Agreement and/or to compel specific performance of its terms.\n8. Inducement. Confidential Information provided to Recipient does not and is not intended to represent an inducement by Discloser or\na commitment by Discloser to enter into any business relationship with Recipient or with any other entity. If some or all of the Parties desire to\npursue business opportunities, the Parties will execute a separate written agreement to govern such business relationship.\n9. Reproduction. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this\nAgreement. Any reproduction of any Confidential Information shall remain the property of the Discloser and shall contain any and all\nconfidential or proprietary notices or legends which may appear on the original, unless otherwise authorized in writing by the Discloser.\n10. Termination. This Agreement shall continue for a period of two (2) years beyond the Effective Date. Any Party may terminate this\nAgreement at any time upon thirty days written notice to the other Party; provided that, notwithstanding any termination of this Agreement, all\nthe obligations of Recipient under this Agreement with respect to any Confidential Information received prior to termination shall survive\ntermination and continue for three (3) years from Effective Date.\n11. Severability. If one or more of the terms of this Agreement are held to be invalid or unenforceable in any respect, the same will be\nfully severed from and will not affect the validity or enforceability of the remaining provisions of this Agreement, and a provision as similar in\nits economic and legal effects as the severed provision will be substituted for the severed provision.\n12. Assignment and Transfer. The Parties will not assign or transfer any rights or obligations under this Agreement without the prior\nwritten consent of the other Parties and any assignment in violation of this Agreement shall be void. This Agreement shall benefit and be binding\nupon the Parties to this Agreement and their respective successors and permitted assigns.\n13. Entirety and Amendment. This Agreement embodies the entire understanding between the Parties respecting the subject matter of\nthis Agreement and supersedes any and all prior negotiations, correspondence, understandings and agreements between the Parties respecting the\nuse and disclosure of Confidential Information. This Agreement may not be modified except by writing signed by both Parties hereto. Either the\noriginal or copies, including facsimile or e-mail transmissions, of this Agreement, may be executed in counterparts, each of which shall be an\noriginal as against any Party whose signature appears on such counterpart and all of which together shall constitute one and the same instrument.\n14. Non-Waiver. The failure of any Party to demand strict performance of any or all of the terms of this Agreement, or to exercise any\nor all rights conferred by this Agreement, shall not be construed as a waiver or relinquishment of that party’s right to assert or rely upon any such\nright in the future.\n15. Press Releases; Public Announcements. Neither Party hereto shall make any press release, public announcement or any similar\ndisclosure or reference with respect to this Agreement or the Transaction without the prior review thereof and reasonable consent thereto by the\nother Party.\n16. Recitals. The recitals set forth above are expressly made a part of this Agreement.\nIN WITNESS WHEREQOF, the Parties have caused this Agreement to be executed by their duly authorized officers or representatives as\nof the date first stated above.\nKINDER MORGAN CRUDE & SAVE THE WORLD AIR, INC.\nCONDENSATE LLC\nBy: /s/ James Holland By: [s/ Gregg Bigger\nName: James Holland Name: Gregg Bigger\nTitle: VP Technical Services Title:  CEO & President	EX-10.2 stwa_8k-ex1002.htm MUTUAL CONFIDENTIALITY AGREEMENT\nEXHIBIT 10.2\nKM Contract #CA-KMCC-2014-012\nMUTUAL CONFIDENTIALITY AGREEMENT\nThe Mutual Confidentiality Agreement ("Agreement") is entered into this 15thd day of July, 2014 (the "Effective Date") by and between\nKinder Morgan Crude & Condensate LLC ("KMCC") and Save the World Air, Inc. ("STWA").\nWHEREAS, KMCC and STWA (hereinafter each individually referred to as a "Party" and collectively referred to as (the "Parties")\ncontemplate exchanging information and holding discussions concerning a mutually beneficial business relationship (the "Transaction"):\nWHEREAS, the Parties have entered into this Agreement in order to ensure the confidentiality of all such information and the\nconfidentiality of the dicussions between the Parties regarding the Transaction and to prevent the disclosure of any such information to third\nparties except in accordance with the terms of this Agreement:\nWHEREAS, the Parties recognize that each other's business involves specialized and proprietary knowledge, information, methods,\nprocesses, techniques and skills peculiar to their security and growth; and\nWHEREAS, the Discloser (as Defined below) would not provide such information without the protections set forth in this Agreement.\nNOW, THEREFORE, in consideration of the mutual agreements of the Parties contained, and for other good and valuable consideration,\nthe receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:\n1. Confidentiality.. As used herein, (i) "Discloser" means any Confidential Information disclosed by either Party to the other Party; (ii)\n"Recipient" means any Confidential Information received by either Party from the other Party; and (iii) "Confidential Information" means any\nand all proprietary and non-public information regarding the Transaction or concerning the Discloser (whether prepared by the Discloser, its\nadvisors or otherwise and irrespective of the form of communication) furnished to Recipient or to its officers, directors, members, partners,\nemployees, affiliates, attorneys, agents, consultants, assigns, joint ventures, developers, vendors, investors, researchers, representatives or other\nsimilarly situated persons (collectively, "Representatives") now or in the future by or on behalf of the Discloser, including but not limited to\ndocuments\nand\ninformation,\noral\nor\nwritten,\ntangible\nor\nintangible,\nelectronic\nor\notherwise,\ngenerated\nor\ncollected\nby\nRecipient\nwhich\ncontain,\nreflect or are derived from any other Confidential Information furnished by or on behalf of the Discloser. Confidentia Information shall include,\nwithout limitation, feature and technical specifications, transportation service proposals, draft transportation agreements, drawings, data, designs,\ncomputer programs, patent applications, documentation, marketing forecasts, research and development, financial data, consumer data, product\ndata, study data, test results, or other technical or business information. The fact that the Parties have entered into this Agreement and are\nengaged in discussions with respect to the Transaction shall be considered Confidential Information Confidential Information does not include\n(i) information which is or becomes generally known other than as a result of disclosure hereunder, (ii) information which was within Recipient's\nknowledge prior to its being furnished to Recipient or its Representatives by or on behalf of the Discloser, provided that Recipient is not aware\nof\nthe source of such information being bound by a confidentiality or nondisclosure agreement with the Discloser with respect to such information,\n(iii) information which lawfully becomes available to a Recipient or its Representatives on a non-confidential basis from a source other than\nDiscloser, provided that such source is not bound by a confidentiality agreement with the Discloser known to the Recipient or otherwise\nprohibited from transmitting the information to the Recipient by a contractual, legal or fiduciary obligation known to the Recipient; or (iv)\ninformation which is independently developed by a Recipient or its Representatives without use of the Confidential Information or breach of this\nAgreement.\n1\n2. Consideration of Use. In consideration of the furnishing of Confidential Information by the Discloser, Recipient agrees that it will\nhold the Confidential Information in strict confidence and will use the Confidential Information only in connection with the negotiation and\nconsummation\nof\nthe\nTransaction.\nRecipient\nwill\nprotect\nthe\nconfidentiality\nof\nthe\nDiscloser's\nConfidential\nInformation\nwith\nat\nleast\nthe\nsame\nlevel of care that it protects the confidentiality of its own similar confidential and proprietary information, and using no less than reasonable\ncare.\n3. Transmission of Confidential Information Recipient shall transmit Confidential Information only to such of its Representatives as\nneed to know the Confidential Information in order to negotiate and consummate the Transaction, if any, between the parties, and only then after\nsuch Representatives have been informed of this Agreement. Recipient shall be liable for the breach of the Agreement by any of their\nRepresentatives and agree, at their sole expense, to take all reasonable measures to restrain their Representatives from prohibited or unauthorized\ndisclosure or use of any Confidential Information. Recipient shall immediately notify the Discloser in the event of any loss or unauthorized\ndisclosure of any Confidential Information.\n4. Disclosure. If Recipient or any of its Representatives receive a request to disclose any part of the Confidential Information under the\nterms of a subpoena or order issued by a court or other governmental body with the power to compel compliance with its requests. Recipient\nshall (i) notify Discloser immediately of the existence, terms and circumstances surrounding the request (unless prohibited by law to do so),\nand\n(ii) consult with Discloser on legally available steps to resist or narrow such requests. If disclosure of such Confidentia Information is required\nto prevent Recipient from being held in contempt or subject to other penalty, Recipient shall (a) furnish only such portion of the Confidentia\nInformation as, in the written opinion of counsel satisfactory to Discloser. Recipient is legally compelled to disclose, and (b) use its best efforts to\nobtain an order or other reliable assurance that confidential treatment will be accorded to the disclosed Confidential Information.\nNotwithstanding\nany\nprovision\nherein\nto\nthe\ncontrary,\neither\nParty\nmay\ndisclose\nthe\nConfidential\nInformation\nin\nfilings\nwith\nthe\nUnited\nStates\nSecurities and Exchange Commission ("SEC") as may be required by SEC rules and regulations. In addition, subject to the written authorization\nof KMCC or STWA, as the case may be, any data acquired by KMCC or STWA, in furtherance or as a result of that certain Equipment\nLease/Option to Purchase Agreement between KMCC and STWA of even date herewith, may be shared and discussed with, in summary form\nonly, the customers, potential customers, vendors, potential vendors, contractual relationships or potential contractual relationships (collectively,\n"Third Parties") of KMCC or STWA, provided such Third Parties are informed of this Agreement and such Third Parties agree, in writing, to\nhold the data in strict confidence and to use the data only to evaluate a transaction with KMCC or STWA, as the case may be.\n5. Property.. All information furnished by Discloser shall remain Discloser's property. Upon termination or expiration of this Agreement,\nor\nupon\nwritten\nrequest\nof\nDiscloser\nor\nin\nthe\nevent\nthe\nParties\ndecide\nnot\nto\nproceed\nwith\nthe\nTransaction,\nRecipient\nshall\npromptly\ndestroy\nor,\nat\nDiscloser's election, redeliver to Discloser, all copies of the Confidential Information, destroy any reports, analyses, notes or other information\n("Notes") and deliver to the Discloser a certificate executed by one of Recipient's duly authorized officers indicating that the requirements of this\nsentence have been satisfied in full. Notwithstanding the return or destruction of Confidential Information and Notes. Recipient and their\nrepresentatives will continue to be bound by Recipient's obligations of confidentiality and other obligations hereunder. Notwithstanding anything\nherein to the contrary Recipient shall be entitled to retain one archival copy of the Confidential Information and Notes related thereto for archival\nlegal and compliance purposes. For any retained Confidential Information and Notes the Recipient will take appropriate measures to preserve the\ncontinuing confidentiality of such as if they were the Recipient's own confidential information. The Recipient shall not be obligated to search for\nand destroy, delete or erase Confidential Information or Notes or any analyses, compilations, studies or other documents which have been\nprepared by the Recipient and which reflect or are based upon any Confidential Information if such are maintained as part of a back-up\nor\narchival system of records and electronic information systems ("EIS") as part of the routine maintenance and operation of such EIS. EIS shall\ninclude but not be limited to computer systems, e-mail, instant messaging, PDAs and smartphones, or voicemail systems. The Recipient will take\nappropriate measures to preserve the continuing confidentiality of such information that is maintained in the EIS as if it was the Recipient's own\nconfidential information. No positions set forth in this paragraph shall abrogate any of Recipient's duties or obligations under this Agreement\nwith respect to Confidential Information.\n2\n6. Warranties. The Parties recognize and agree that nothing contained in this Agreement shall be construed as granting any property\nrights, by license or otherwise, to any Confidential Information disclosed pursuant to this Agreement, or to any invention or any patent,\ncopyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Recipient\nshall not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential\nInformation. THE INFORMATION IS PROVIDED "AS IS" AND THERE ARE NO REPRESENTATIONS OR WARRANTIES,\nEXPRESS OR IMPLIED, WITH RESPECT TO THE INFORMATION, INCLUDING BUT NOT LIMITED TO A WARRANTY\nAGAINST INFRINGEMENT, ACCURACY, OR COMPLETENESS.\n7. Breach. Recipient acknowledges and agrees that, in the event of any breach of this Agreement, Discloser would be irreparably and\nimmediately harmed and could not be made whole by monetary damages. Accordingly, it is agreed that, in addition to any other remedy to which\nit may be entitled at law or in equity, Discloser is entitled to seek and obtain an injunction or injunctions (without the posting of any bond and\nwithout proof of actual damages) to prevent the breach of this Agreement and/or to compel specific performance of its terms.\n8. Inducement. Confidential Information provided to Recipient does not and is not intended to represent an inducement by Discloser or\na\ncommitment by Discloser to enter into any business relationship with Recipient or with any other entity. If some or all of the Parties desire to\npursue business opportunities, the Parties will execute a separate written agreement to govern such business relationship.\n9. Reproduction. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this\nAgreement. Any reproduction of any Confidentia Information shall remain the property of the Discloser and shall contain any and all\nconfidential or proprietary notices or legends which may appear on the original, unless otherwise authorized in writing by the Discloser.\n10. Termination This Agreement shall continue for a period of two (2) years beyond the Effective Date. Any Party may terminate this\nAgreement at any time upon thirty days written notice to the other Party; provided that, notwithstanding any termination of this Agreement,\nall\nthe obligations of Recipient under this Agreement with respect to any Confidential Information received prior to termination shall survive\ntermination and continue for three (3) years from Effective Date.\n11. Severability.. If one or more of the terms of this Agreement are held to be invalid or unenforceable in any respect, the same will be\nfully severed from and will not affect the validity or enforceability of the remaining provisions of this Agreement, and a provision as similar in\nits economic and legal effects as the severed provision will be substituted for the severed provision.\n3\n12. Assignment and Transfer. The Parties will not assign or transfer any rights or obligations under this Agreement without the prior\nwritten consent of the other Parties and any assignment in violation of this Agreement shall be void. This Agreement shall benefit and be binding\nupon the Parties to this Agreement and their respective successors and permitted assigns.\n13. Entirety and Amendment. This Agreement embodies the entire understanding between the Parties respecting the subject matter of\nthis Agreement and supersedes any and all prior negotiations, correspondence, understandings and agreements between the Parties respecting the\nuse and disclosure of Confidential Information. This Agreement may not be modified except by writing signed by both Parties hereto. Either the\noriginal or copies, including facsimile or e-mail transmissions, of this Agreement, may be executed in counterparts, each of which shall be an\noriginal as against any Party whose signature appears on such counterpart and all of which together shall constitute one and the same instrument.\n14. Non-Waiver. The failure of any Party to demand strict performance of any or all of the terms of this Agreement, or to exercise any\nor all rights conferred by this Agreement, shall not be construed as a waiver or relinquishment of that party's right to assert or rely upon any such\nright in the future.\n15. Press Releases; Public Announcements. Neither Party hereto shall make any press release, public announcement or any similar\ndisclosure or reference with respect to this Agreement or the Transaction without the prior review thereof and reasonable consent thereto by the\nother Party.\n16. Recitals. The recitals set forth above are expressly made a part of this Agreement.\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized officers or representatives as\nof the date first stated above.\nKINDER MORGAN CRUDE &\nSAVE THE WORLD AIR, INC.\nCONDENSATE LLC\nBy:\n/s/ James Holland\nBy:\n/s/ Gregg Bigger\nName: James Holland\nName: Gregg Bigger\nTitle: VP Technical Services\nTitle: CEO & President\n4	EX-10 .2 3 stwa_8k-ex1002.htm MUTUAL CONFIDENTIALITY AGREEMENT\nEXHIBIT 10.2\nKM Contract #CA-KMCC-2014-012\nMUTUAL CONFIDENTIALITY AGREEMENT\nThe Mutual Confidentiality Agreement (“Agreement”) is entered into this 15th day of July, 2014 (the “Effective Date”) by and between\nKinder Morgan Crude & Condensate LLC (“KMCC”) and Save the World Air, Inc. (“STWA”).\nWHEREAS, KMCC and STWA (hereinafter each individually referred to as a “Party” and collectively referred to as (the “Parties”)\ncontemplate exchanging information and holding discussions concerning a mutually beneficial business relationship (the “Transaction”):\nWHEREAS, the Parties have entered into this Agreement in order to ensure the confidentiality of all such information and the\nconfidentiality of the dicussions between the Parties regarding the Transaction and to prevent the disclosure of any such information to third\nparties except in accordance with the terms of this Agreement:\nWHEREAS, the Parties recognize that each other’s business involves specialized and proprietary knowledge, information, methods,\nprocesses, techniques and skills peculiar to their security and growth; and\nWHEREAS, the Discloser (as Defined below) would not provide such information without the protections set forth in this Agreement.\nNOW, THEREFORE, in consideration of the mutual agreements of the Parties contained, and for other good and valuable consideration,\nthe receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:\n1. Confidentiality. As used herein, (i) “Discloser” means any Confidential Information disclosed by either Party to the other Party; (ii)\n“Recipient” means any Confidential Information received by either Party from the other Party; and (iii) “Confidential Information” means any\nand all proprietary and non-public information regarding the Transaction or concerning the Discloser (whether prepared by the Discloser, its\nadvisors or otherwise and irrespective of the form of communication) furnished to Recipient or to its officers, directors, members, partners,\nemployees, affiliates, attorneys, agents, consultants, assigns, joint ventures, developers, vendors, investors, researchers, representatives or other\nsimilarly situated persons (collectively, “Representatives”) now or in the future by or on behalf of the Discloser, including but not limited to\ndocuments and information, oral or written, tangible or intangible, electronic or otherwise, generated or collected by Recipient which contain,\nreflect or are derived from any other Confidential Information furnished by or on behalf of the Discloser. Confidential Information shall include,\nwithout limitation, feature and technical specifications, transportation service proposals, draft transportation agreements, drawings, data, designs,\ncomputer programs, patent applications, documentation, marketing forecasts, research and development, financial data, consumer data, product\ndata, study data, test results, or other technical or business information. The fact that the Parties have entered into this Agreement and are\nengaged in discussions with respect to the Transaction shall be considered Confidential Information. Confidential Information does not include\n(i) information which is or becomes generally known other than as a result of disclosure hereunder, (ii) information which was within Recipient’s\nknowledge prior to its being furnished to Recipient or its Representatives by or on behalf of the Discloser, provided that Recipient is not aware of\nthe source of such information being bound by a confidentiality or nondisclosure agreement with the Discloser with respect to such information,\n(iii) information which lawfully becomes available to a Recipient or its Representatives on a non-confidential basis from a source other than\nDiscloser, provided that such source is not bound by a confidentiality agreement with the Discloser known to the Recipient or otherwise\nprohibited from transmitting the information to the Recipient by a contractual, legal or fiduciary obligation known to the Recipient; or (iv)\ninformation which is independently developed by a Recipient or its Representatives without use of the Confidential Information or breach of this\nAgreement.\n1\n2. Consideration of Use. In consideration of the furnishing of Confidential Information by the Discloser, Recipient agrees that it will\nhold the Confidential Information in strict confidence and will use the Confidential Information only in connection with the negotiation and\nconsummation of the Transaction. Recipient will protect the confidentiality of the Discloser’s Confidential Information with at least the same\nlevel of care that it protects the confidentiality of its own similar confidential and proprietary information, and using no less than reasonable care.\n3. Transmission of Confidential Information. Recipient shall transmit Confidential Information only to such of its Representatives as\nneed to know the Confidential Information in order to negotiate and consummate the Transaction, if any, between the parties, and only then after\nsuch Representatives have been informed of this Agreement. Recipient shall be liable for the breach of the Agreement by any of their\nRepresentatives and agree, at their sole expense, to take all reasonable measures to restrain their Representatives from prohibited or unauthorized\ndisclosure or use of any Confidential Information. Recipient shall immediately notify the Discloser in the event of any loss or unauthorized\ndisclosure of any Confidential Information.\n4. Disclosure. If Recipient or any of its Representatives receive a request to disclose any part of the Confidential Information under the\nterms of a subpoena or order issued by a court or other governmental body with the power to compel compliance with its requests. Recipient\nshall (i) notify Discloser immediately of the existence, terms and circumstances surrounding the request (unless prohibited by law to do so), and\n(ii) consult with Discloser on legally available steps to resist or narrow such requests. If disclosure of such Confidential Information is required\nto prevent Recipient from being held in contempt or subject to other penalty, Recipient shall (a) furnish only such portion of the Confidential\nInformation as, in the written opinion of counsel satisfactory to Discloser. Recipient is legally compelled to disclose, and (b) use its best efforts to\nobtain an order or other reliable assurance that confidential treatment will be accorded to the disclosed Confidential Information.\nNotwithstanding any provision herein to the contrary, either Party may disclose the Confidential Information in filings with the United States\nSecurities and Exchange Commission (“SEC”) as may be required by SEC rules and regulations. In addition, subject to the written authorization\nof KMCC or STWA, as the case may be, any data acquired by KMCC or STWA, in furtherance or as a result of that certain Equipment\nLease/Option to Purchase Agreement between KMCC and STWA of even date herewith, may be shared and discussed with, in summary form\nonly, the customers, potential customers, vendors, potential vendors, contractual relationships or potential contractual relationships (collectively,\n“Third Parties”) of KMCC or STWA, provided such Third Parties are informed of this Agreement and such Third Parties agree, in writing, to\nhold the data in strict confidence and to use the data only to evaluate a transaction with KMCC or STWA, as the case may be.\n5. Property. All information furnished by Discloser shall remain Discloser’s property. Upon termination or expiration of this Agreement,\nor upon written request of Discloser or in the event the Parties decide not to proceed with the Transaction, Recipient shall promptly destroy or, at\nDiscloser’s election, redeliver to Discloser, all copies of the Confidential Information, destroy any reports, analyses, notes or other information\n(“Notes”) and deliver to the Discloser a certificate executed by one of Recipient’s duly authorized officers indicating that the requirements of this\nsentence have been satisfied in full. Notwithstanding the return or destruction of Confidential Information and Notes. Recipient and their\nrepresentatives will continue to be bound by Recipient’s obligations of confidentiality and other obligations hereunder. Notwithstanding anything\nherein to the contrary Recipient shall be entitled to retain one archival copy of the Confidential Information and Notes related thereto for archival\nlegal and compliance purposes. For any retained Confidential Information and Notes the Recipient will take appropriate measures to preserve the\ncontinuing confidentiality of such as if they were the Recipient’s own confidential information. The Recipient shall not be obligated to search for\nand destroy, delete or erase Confidential Information or Notes or any analyses, compilations, studies or other documents which have been\nprepared by the Recipient and which reflect or are based upon any Confidential Information if such are maintained as part of a back-up or\narchival system of records and electronic information systems (“EIS”) as part of the routine maintenance and operation of such EIS. EIS shall\ninclude but not be limited to computer systems, e-mail, instant messaging, PDAs and smartphones, or voicemail systems. The Recipient will take\nappropriate measures to preserve the continuing confidentiality of such information that is maintained in the EIS as if it was the Recipient’s own\nconfidential information. No positions set forth in this paragraph shall abrogate any of Recipient’s duties or obligations under this Agreement\nwith respect to Confidential Information.\n2\n6. Warranties. The Parties recognize and agree that nothing contained in this Agreement shall be construed as granting any property\nrights, by license or otherwise, to any Confidential Information disclosed pursuant to this Agreement, or to any invention or any patent,\ncopyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Recipient\nshall not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential\nInformation. THE INFORMATION IS PROVIDED “AS IS” AND THERE ARE NO REPRESENTATIONS OR WARRANTIES,\nEXPRESS OR IMPLIED, WITH RESPECT TO THE INFORMATION, INCLUDING BUT NOT LIMITED TO A WARRANTY\nAGAINST INFRINGEMENT, ACCURACY, OR COMPLETENESS.\n7. Breach. Recipient acknowledges and agrees that, in the event of any breach of this Agreement, Discloser would be irreparably and\nimmediately harmed and could not be made whole by monetary damages. Accordingly, it is agreed that, in addition to any other remedy to which\nit may be entitled at law or in equity, Discloser is entitled to seek and obtain an injunction or injunctions (without the posting of any bond and\nwithout proof of actual damages) to prevent the breach of this Agreement and/or to compel specific performance of its terms.\n8. Inducement. Confidential Information provided to Recipient does not and is not intended to represent an inducement by Discloser or\na commitment by Discloser to enter into any business relationship with Recipient or with any other entity. If some or all of the Parties desire to\npursue business opportunities, the Parties will execute a separate written agreement to govern such business relationship.\n9. Reproduction. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this\nAgreement. Any reproduction of any Confidential Information shall remain the property of the Discloser and shall contain any and all\nconfidential or proprietary notices or legends which may appear on the original, unless otherwise authorized in writing by the Discloser.\n10. Termination. This Agreement shall continue for a period of two (2) years beyond the Effective Date. Any Party may terminate this\nAgreement at any time upon thirty days written notice to the other Party; provided that, notwithstanding any termination of this Agreement, all\nthe obligations of Recipient under this Agreement with respect to any Confidential Information received prior to termination shall survive\ntermination and continue for three (3) years from Effective Date.\n11. Severability. If one or more of the terms of this Agreement are held to be invalid or unenforceable in any respect, the same will be\nfully severed from and will not affect the validity or enforceability of the remaining provisions of this Agreement, and a provision as similar in\nits economic and legal effects as the severed provision will be substituted for the severed provision.\n3\n12. Assignment and Transfer. The Parties will not assign or transfer any rights or obligations under this Agreement without the prior\nwritten consent of the other Parties and any assignment in violation of this Agreement shall be void. This Agreement shall benefit and be binding\nupon the Parties to this Agreement and their respective successors and permitted assigns.\n13. Entirety and Amendment. This Agreement embodies the entire understanding between the Parties respecting the subject matter of\nthis Agreement and supersedes any and all prior negotiations, correspondence, understandings and agreements between the Parties respecting the\nuse and disclosure of Confidential Information. This Agreement may not be modified except by writing signed by both Parties hereto. Either the\noriginal or copies, including facsimile or e-mail transmissions, of this Agreement, may be executed in counterparts, each of which shall be an\noriginal as against any Party whose signature appears on such counterpart and all of which together shall constitute one and the same instrument.\n14. Non-Waiver. The failure of any Party to demand strict performance of any or all of the terms of this Agreement, or to exercise any\nor all rights conferred by this Agreement, shall not be construed as a waiver or relinquishment of that party’s right to assert or rely upon any such\nright in the future.\n15. Press Releases; Public Announcements. Neither Party hereto shall make any press release, public announcement or any similar\ndisclosure or reference with respect to this Agreement or the Transaction without the prior review thereof and reasonable consent thereto by the\nother Party.\n16. Recitals. The recitals set forth above are expressly made a part of this Agreement.\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized officers or representatives as\nof the date first stated above.\nKINDER MORGAN CRUDE &\nSAVE THE WORLD AIR, INC.\nCONDENSATE LLC\nBy:\n/s/ James Holland\nBy:\n/s/ Gregg Bigger\nName: James Holland\nName: Gregg Bigger\nTitle: VP Technical Services\nTitle: CEO & President\n4
diff --git a/test-A/out.tsv b/test-A/out.tsv
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+++ b/test-A/out.tsv
@@ -0,0 +1,203 @@
+effective_date=2003-10-02 jurisdiction=Ohio term=12_months party=Lsi_Industries_Inc. party=Dennis_W._Wells
+effective_date=1999-05-03 jurisdiction=Delaware term=2_years party=Veramark_Technologies_Inc. party=Anthony_C._Mazzullo
+jurisdiction=Indiana term=6_months party=Zimmer_Inc. party=Recitals_A._For
+effective_date=1999-05-03 jurisdiction=New_York term=2_years party=Motive_Inc. party=Scott_M._Ashby
+effective_date=2015-05-21 jurisdiction=Nevada term=5_years party=Topsight_Corporation
+effective_date=2010-07-16 jurisdiction=Colorado term=20_years party=Wescor_Inc. party=Douglass_T._Simpson
+effective_date=2004-10-03 jurisdiction=Colorado party=Array_Biopharma_Inc.
+effective_date=2004-05-03 jurisdiction=Maryland party=Sunstone_Hotel_Investors_Inc. party=Gary_A._Stougaard
+effective_date=2012-01-01 jurisdiction=Delaware party=Masco_Corporation party=Donald_J._De
+effective_date=1999-05-03 jurisdiction=New_York term=2_years party=Superior_Essex_Inc. party=David_S._Aldridge
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+effective_date=2014-01-28 jurisdiction=Delaware term=5_years party=Vapotherm_Inc.
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+effective_date=2006-12-29 jurisdiction=California term=7_years party=Supermicro_Computer_Inc.
+effective_date=1999-05-03 jurisdiction=Delaware term=1_year party=The_Company
+effective_date=1999-05-03 jurisdiction=Delaware party=Piercing_Pagoda_Inc. party=Alan_P._Shor
+effective_date=1999-05-03 jurisdiction=New_Jersey party=Confidentiality_Agreement_Between_Sun_Pharmaceutical_Industries_Inc. party=Robert_F._Doman
+effective_date=1999-05-03 jurisdiction=Delaware term=5_years party=Adept_Technology_Inc.
+effective_date=2018-03-01 jurisdiction=Texas party=Rocky_Mountain_High_Brands_Inc. party=Donna_P._Henry
+effective_date=2017-05-03 jurisdiction=Massachusetts party=The_Company
+effective_date=1999-05-03 jurisdiction=Washington term=3_years party=Cardiac_Science_Corporation
+effective_date=1999-05-03 jurisdiction=Delaware term=12_months party=The_Company party=Richard_N._Kender
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+effective_date=1999-05-03 jurisdiction=Pennsylvania party=Maxwell_Shoe_Company_Inc. party=James_J._Tinagero
+effective_date=2006-04-19 jurisdiction=Pennsylvania term=6_month party=Mellon_Financial_Corporation party=Michael_E._Bleier
+effective_date=1999-05-03 jurisdiction=California term=1_year party=Autodesk_Inc.
+effective_date=1999-05-03 jurisdiction=Delaware party=Earthlink_Inc.
+effective_date=2011-02-25 jurisdiction=Delaware party=Arch_Coal_Inc. party=Robert_G._Jones
+effective_date=2018-04-03 jurisdiction=Delaware party=Hopfed_Bancorp_Inc.
+effective_date=2018-01-01 jurisdiction=Massachusetts party=Sonus_Networks_Inc. party=Jeffrey_M._Snider
+effective_date=2014-05-03 jurisdiction=Connecticut party=Naugatuck_Valley_Financial_Corporation party=William_C._Calderara
+effective_date=2006-05-11 jurisdiction=California party=Beckman_Coulter_Inc. party=Kim_D._Blickenstaff
+effective_date=2006-08-08 jurisdiction=Texas term=18_month party=Severance_Com party=Grant_E._Sims
+effective_date=1999-02-05 jurisdiction=Delaware party=The_Company
+effective_date=2006-03-01 jurisdiction=Virginia party=Federal_Home_Loan_Mortgage_Corporation party=Information_A._Non
+effective_date=1999-05-03 jurisdiction=Delaware term=12_months party=Sandisk_Corporation
+effective_date=1999-05-03 jurisdiction=Washington term=3_months party=Todd_Shipyards_Corporation party=Stephen_G._Welch
+effective_date=2011-10-18 jurisdiction=Minnesota party=Electromed_Inc. party=Robert_D._Hansen
+effective_date=1964-05-03 jurisdiction=Delaware party=Quest_Solution_Inc. party=Jason_F._Griffith
+effective_date=2004-02-01 jurisdiction=Texas term=5_years party=The_Company
+effective_date=2002-10-01 jurisdiction=Colorado party=Evolving_Systems_Inc.
+effective_date=2007-10-31 jurisdiction=Colorado term=12_months
+effective_date=2017-05-24 jurisdiction=Nevada party=Nexeon_Medsystems_Inc.
+effective_date=1999-05-03 jurisdiction=New_York party=Pareteum_Corporation
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+jurisdiction=Connecticut party=Frontier_Com party=Ken_W._Arndt
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+effective_date=2016-07-25 jurisdiction=Florida term=3_years party=Carolco_Pictures_Inc.
+effective_date=2015-08-26 jurisdiction=Washington term=2_years party=Riverview_Community_Bank party=James_M._Chadwick
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+jurisdiction=Colorado term=5_years party=Genomics_Integrated_Wellness_Systems_Inc.
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+effective_date=2004-09-28 jurisdiction=Delaware party=Telco_Solutions_Iii_Llc party=Timothy_J._Knox
+effective_date=2012-09-01 jurisdiction=Ohio party=The_Company party=John_C._Orr
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+effective_date=2003-07-02 jurisdiction=Connecticut party=Lydall_Inc. party=Roger_M._Widmann
+effective_date=1999-05-03 jurisdiction=Maryland term=18_months party=The_Company
+effective_date=1999-05-03 jurisdiction=Delaware term=18_months party=Nimble_Storage_Inc.
+effective_date=2019-01-16 jurisdiction=Utah term=2_years party=Glacier_Bank party=Randall_M._Chesler
+effective_date=1999-05-03 jurisdiction=California party=Raytheon_Company party=Kathryn_G._Simpson
+effective_date=2002-10-04 jurisdiction=Utah term=5_years party=Utah_Corporation party=Exhibit_A._If
+effective_date=2002-10-01 jurisdiction=Colorado party=Evolving_Systems_Inc.
+effective_date=1999-05-03 jurisdiction=Delaware party=Martek_Biosciences_Corporation party=David_M._Feitel
+jurisdiction=New_York party=Airbus_Com party=Gregory_A._May
+effective_date=1999-05-03 jurisdiction=California term=3_years party=Openwave_Systems_Inc. party=Douglas_P._Solomon
+effective_date=2013-07-29 jurisdiction=Delaware term=7_years party=Cytori_Therapeutics_Inc. party=Christopher_J._Calhoun
+effective_date=2018-04-01 jurisdiction=Virginia term=12_months party=The_Corporation party=Richard_A._Montoni
+effective_date=1999-05-03 jurisdiction=Massachusetts party=Hill_Inc.
+effective_date=2007-01-31 jurisdiction=Texas party=Texas_United_Bancshares_Inc. party=Jeff_A._Wilkinson
+effective_date=1999-05-03 jurisdiction=Massachusetts party=Innoveda_Inc. party=Peter_T._Johnson
+effective_date=2007-04-23 jurisdiction=Colorado term=2_years party=Es_Inc. party=William_A._Mansfield
+effective_date=2018-04-26 jurisdiction=New_York term=2_years party=Giant_Beverage_Inc.
+jurisdiction=Michigan party=Flagstar_Bancorp_Inc.
+effective_date=2014-03-31 jurisdiction=Pennsylvania party=Michael_Baker_Corporation party=Thomas_J._Campbell
+effective_date=2006-05-03 jurisdiction=New_York party=Fite_Biopharma_Ltd.
+effective_date=2006-10-09 jurisdiction=New_Jersey term=12_months party=Heartland_Payment_Systems_Inc. party=Michael_A._Lawler
+effective_date=2011-05-27 jurisdiction=Texas party=Immucor_Inc. party=Philip_H._Moise
+jurisdiction=Minnesota party=Choicetel_Communications_Inc.
+effective_date=2018-11-01 jurisdiction=Ohio party=Lsi_Industries_Inc. party=James_A._Clark
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+effective_date=2014-07-15 jurisdiction=New_Jersey party=Realogy_Group_Llc party=Charles_C._Baker
+effective_date=1999-05-03 jurisdiction=Florida party=Sungard_Data_Systems_Inc. party=Richard_C._Tarbox
+effective_date=2004-10-12 jurisdiction=Oregon party=Nike_Inc. party=Lindsay_D._Stewart
+effective_date=2002-01-01 jurisdiction=Massachusetts party=Robot_Corporation party=Arthur_W._Hook
+jurisdiction=Ohio party=Athersys_Inc. party=John_J._Harrington
+effective_date=1999-05-03 jurisdiction=Minnesota party=Buca_Inc. party=John_T._Twichell
+jurisdiction=Maryland party=Sunshine_Financial_Inc. party=Corissa_J._Briglia
+effective_date=1999-11-15 jurisdiction=Indiana party=Crystal_Clean_Llc party=Fred_M._Fehsenfeld
+effective_date=2015-10-19 jurisdiction=California party=Social_Reality_Inc.
+effective_date=2012-05-21 jurisdiction=Virginia party=Prohibited_Com party=Donald_H._Layton
+effective_date=2017-12-31 jurisdiction=Tennessee term=1_year party=Tennessee_Llc party=Harley_G._Lappin
+effective_date=2009-02-16 jurisdiction=Delaware party=Chordiant_Software_Inc. party=Steven_R._Springsteel
+effective_date=2007-12-19 jurisdiction=Maryland term=12_months party=Customer_Company party=Nanjina_E._Rd
+effective_date=2002-10-01 jurisdiction=Minnesota party=Ikonics_Corporation party=Joseph_R._Nerges
+effective_date=2015-12-07 jurisdiction=Ohio party=The_Company party=Sarah_R._Coffin
+effective_date=1997-08-25 jurisdiction=California term=10_years party=Solar_Technology
+effective_date=2006-10-31 jurisdiction=New_Jersey party=Disclosure_Confidentiality_Agreement_Doubletake_Software_Inc.
+jurisdiction=Colorado party=Aerogrow_International_Inc.
+jurisdiction=INDIANA party=Holding_Company party=Benjamin_J._Bochnowski
+jurisdiction=Virginia party=The_Corporation party=Richard_A._Montoni
+jurisdiction=Minnesota party=Sps_Commerce_Inc.
+effective_date=2005-12-01 jurisdiction=New_York term=12_months party=The_Company
+effective_date=1999-05-03 jurisdiction=Delaware term=12_months party=Business_Com party=Joseph_W._La
+effective_date=2003-11-01 jurisdiction=New_York term=18_month party=Instinet_Com
+effective_date=1999-05-03 jurisdiction=California term=2_years party=Gigpeak_Inc.
+effective_date=1999-05-03 jurisdiction=Delaware term=12_months party=Hologic_Inc. party=Kevin_T._Conroy
+effective_date=2011-05-01 jurisdiction=Louisiana party=Basic_Com party=John_M._Egle
+effective_date=2007-11-30 jurisdiction=Georgia term=5_years party=Total_System_Services_Inc. party=Thomas_J._Prescott
+effective_date=1998-05-03 jurisdiction=New_York party=Compensation_Com
+effective_date=2012-05-03 jurisdiction=New_York party=The_Talbots_Inc. party=Morton_A._Pierce
+effective_date=2003-10-08 jurisdiction=Oregon term=1_year party=Nike_Inc. party=Thomas_E._Clarke
+jurisdiction=Nevada party=Executive_Company
+jurisdiction=California party=Violin_Memory_Inc.
+effective_date=2008-06-16 jurisdiction=North_Carolina party=The_Bank party=Ralph_N._Strayhorn
+effective_date=1999-05-03 jurisdiction=California term=3_years party=Kikkoman_Corporation party=Recitals_A._The
+effective_date=2008-07-09 jurisdiction=Georgia term=2_years party=Innotrac_Corporation_Dynamic_Response_Group_Inc. party=Melissa_K._Rice
+effective_date=2010-01-07 jurisdiction=California party=Intersil_Corporation party=Jonathan_A._Kennedy
+effective_date=1999-05-03 jurisdiction=New_York party=Ksw_Inc.
+ party=Dalian_Com
+effective_date=1999-05-03 jurisdiction=New_York party=General_Electric_Company party=Michael_A._Jones
+effective_date=2017-04-24 jurisdiction=Indiana party=Wabash_National_Corporation party=Robert_W._Baird
+jurisdiction=Georgia
+jurisdiction=New_Jersey party=Aegerion_Pharmaceuticals_Inc.
+effective_date=1999-05-03 jurisdiction=Minnesota party=Arctic_Cat_Inc. party=Christopher_T._Metz
+effective_date=2006-10-30 jurisdiction=North_Carolina party=The_Cato_Corporation party=Reynolds_C._Faulkner
+effective_date=1999-05-03 jurisdiction=Delaware party=Comverge_Inc.
+effective_date=1996-03-04 jurisdiction=Kentucky party=National_Processing_Company party=Mark_D._Pyke
+effective_date=2019-07-19 jurisdiction=Nevada party=The_Corporation
+jurisdiction=Missouri
+effective_date=1999-02-12 jurisdiction=Colorado term=5_years party=Global_Casinos_Inc. party=Fedele_V._Scutti
+effective_date=2010-04-27 jurisdiction=Connecticut party=Praxair_Inc. party=Stephen_F._Angel
+effective_date=1999-05-03 jurisdiction=Delaware term=1_year party=Leapfrog_Enterprises_Inc.
+effective_date=2015-11-24 jurisdiction=North_Carolina party=Red_Hat_Inc. party=Eric_R._Shander
+effective_date=2017-02-10 jurisdiction=Delaware term=5_years party=Gilead_Sciences_Inc. party=Elizabeth_P._Bhatt
+effective_date=2018-12-17 jurisdiction=Georgia term=2_years party=Calumet_Bank
+jurisdiction=Delaware term=2_years party=Kbs_Capital_Advisors_Llc
+effective_date=2014-01-03 jurisdiction=New_York
+jurisdiction=Pennsylvania party=Neubase_Therapeutics_Inc.
+effective_date=2005-02-25 jurisdiction=California term=2_years party=Specialized_Marketing_Services_Inc.
+jurisdiction=Maryland party=Vapotherm_Inc.
+effective_date=1999-02-03 jurisdiction=California party=Ziprealty_Inc. party=John_H._Lewis
+effective_date=2006-10-03 jurisdiction=Delaware term=1_year party=Technologies_Inc.
+effective_date=2003-01-02 jurisdiction=Pennsylvania party=Deferred_Com party=Stephen_P._Bramlage
+effective_date=1999-05-03 jurisdiction=New_York term=24_year party=Surviving_Corporation party=Richard_M._Graf
+effective_date=2003-03-31 jurisdiction=Virginia party=Usa_Deck_Inc. party=Daniel_L._Betts
+effective_date=2001-03-11 jurisdiction=Virginia party=Federal_Home_Loan_Mortgage_Corporation party=Donald_J._Bisenius
+effective_date=1999-05-03 jurisdiction=Delaware term=12_month party=Armo_Biosciences_Inc. party=Timothy_C._Dolan
+effective_date=2010-11-01 jurisdiction=Nevada party=Pharm_Group_Inc.
+effective_date=2019-06-04 jurisdiction=Nevada party=Renovacare_Inc. party=Harmel_S._Rayat
+effective_date=2006-12-01 jurisdiction=Delaware party=The_Company party=Stuart_G._Stein
+effective_date=2008-09-10 jurisdiction=California party=Apollo_Medical_Holdings_Inc.
+jurisdiction=Colorado party=Tanning_Technology_Corporation party=Barrett_L._Sweet
+effective_date=2003-10-02 term=2_years party=Condensate_Llc
diff --git a/train/in.tsv b/train/in.tsv
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@@ -0,0 +1,254 @@
+00a1d238e37ac225b8045a97953e845d.pdf	effective_date jurisdiction party term	EX-10.23 5 dex1023.htm COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT\nExhibit 10.23\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\nEric Dean Sprunk (“EMPLOYEE”)\nand\nNIKE, Inc., divisions, subsidiaries\nand affiliates. (“NIKE”):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon initial employment or upon the EMPLOYEE’s\nadvancement with NIKE and is a condition of such employment or advancement.\nB. Over the course of EMPLOYEE’s employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to\ndevelop confidential information peculiar to NIKE’s business and not generally known to the public as defined below (“Protected Information”). It is\nanticipated that EMPLOYEE will continue to be exposed to Protected Information of greater sensitivity as EMPLOYEE advances in the company.\nC. The nature of NIKE’s business is highly competitive and disclosure of any Protected Information would result in severe damage to NIKE\nand be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected Information of NIKE can be used to NIKE’s detriment\nanywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete.\n(a) Competition Restriction. During EMPLOYEE’s employment by NIKE, under the terms of any employment contract or\notherwise, and for one year thereafter, (the “Restriction Period”), EMPLOYEE will not directly or indirectly, own, manage, control, or participate in\nthe ownership,\nmanagement or control of, or be employed by, consult for, or be connected in any manner with, any business engaged anywhere in the world in the\nathletic footwear, athletic apparel or sports equipment and accessories business, or any other business which directly competes with NIKE or any of\nits parent, subsidiaries or affiliated corporations ( “Competitor”). By way of illustration only, examples of NIKE competitors include, but are not\nlimited to: Adidas, FILA, Reebok, Puma, Champion, Oakley, DKNY, Converse, Asics, Saucony, New Balance, Ralph Lauren/Polo Sport, B.U.M,\nFUBU, The Gap, Tommy Hilfiger, Umbro, Northface, Venator (Foot lockers), Sports Authority, Columbia Sportswear, Wilson, Mizuno, Callaway\nGolf and Titleist. This provision is subject to NIKE’s option to waive all or any portion of the Restriction Period as more specifically provided\nbelow.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall automatically\ntoll from the date of the first breach, and all subsequent breaches, until the resolution of the breach through private settlement, judicial or other\naction, including all appeals. The Restriction Period shall continue upon the effective date of any such settlement judicial or other resolution. NIKE\nshall not be obligated to pay EMPLOYEE the additional compensation described in paragraph 1(d) below during any period of time in which this\nAgreement is tolled due to EMPLOYEE’s breach. In the event EMPLOYEE receives such additional compensation after any such breach,\nEMPLOYEE must immediately reimburse NIKE in the amount of all such compensation upon the receipt of a written request by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the Restriction Period or\nto limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a portion of the\nRestriction Period is waived, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to compete has\nbeen waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above, should NIKE terminate\nEMPLOYEE’s employment and elect to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a monthly payment equal to one\nhundred percent (100%) of EMPLOYEE’s last monthly base salary while the Restriction Period is in effect. If EMPLOYEE voluntarily terminates\nemployment and NIKE elects to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a monthly severance payment equal to fifty\npercent (50%) of EMPLOYEE’s last monthly base salary while the Restriction Period is in effect. The first payment to EMPLOYEE of additional\nconsideration shall follow on the next applicable pay period after the election to enforce the non-competition agreement, payable in accordance with\nNIKE’s payroll practices.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE’s new\nemployer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period, wherever\nlocated and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure Agreement.\n(a) Protected Information Defined. “Protected Information” shall mean all proprietary information, in whatever form and format, of\nNIKE and all information provided to NIKE by third parties which NIKE is obligated to keep confidential. EMPLOYEE agrees that any and all\ninformation to which EMPLOYEE has access concerning NIKE projects and internal NIKE information is Protected Information, whether in verbal\nform, machine-readable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting the foregoing,\nProtected Information includes information relating to NIKE’s research and development activities, its intellectual property and the filing or\npendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor lists, contract\nfactory lists, pricing information, manufacturing plans, business and marketing plans, sales information, methods of operation, manufacturing\nprocesses and methods, products, and personnel information.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information that is or becomes part\nof the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, employees shall be permitted to retain as part of their\npersonal portfolio copies of the employees’ original artwork and designs, provided the artwork or designs have become part of the public domain. In\nany dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be by clear and\nconvincing evidence.\n(c) Employee’s Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter, EMPLOYEE\nwill hold in confidence and protect all Protected Information and will not, at any time, directly or indirectly, use any Protected Information for any\npurpose outside the scope of EMPLOYEE’s employment with NIKE or disclose any Protected Information to any third person or organization\nwithout the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE will not ever copy, transmit, reproduce,\nsummarize, quote, publish or make any commercial or other use whatsoever of any Protected Information without the prior written consent of NIKE.\nEMPLOYEE will also take reasonable security precautions and such other actions as may be necessary to insure that there is no use or disclosure,\nintentional or inadvertent, of Protected Information in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at anytime, and in any event, upon termination of employment, EMPLOYEE\nshall immediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other similar repositories of\nor containing Protected Information, and all copies thereof, then in EMPLOYEE’s possession or under EMPLOYEE’s control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if\nEMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person employed or not\nemployed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such\nincident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information. NIKE\nshall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by operation of any\npayment under Paragraph 1(d) of this Agreement.\n6. Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE will not directly or\nindirectly , solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or business organization, any\nNIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not such employment is pursuant to a\nwritten agreement or is at will.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement, NIKE shall be entitled to an\naccounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly has realized\nand/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid by NIKE\npursuant to Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to\nwhich NIKE may be entitled at law or in equity.\n8. General Provisions.\n(a) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE’s employment, regardless of the reason for\ntermination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will be effective unless\nexecuted in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts specifically referred to\ntherein.\n(c) Severability. Each provision herein will be treated as a separate and independent clause and unenforceability of any one clause\nwill in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable or invalid\nby a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that jurisdiction.\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE’s employment hereunder, shall be construed according to the\nlaws of the State of Oregon. EMPLOYEE further hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and venue for any\naction or proceeding arising out of or relating to this Agreement shall lie in the state and federal courts located in Oregon.\nEMPLOYEE\nNIKE, Inc.\n/s/ Eric Dean Sprunk\nBy\n/s/ Jeffrey M. Cava\nDATE 04/18/01\nName:\nTitle:\nJeffrey M. Cava\nVice President, Global Human Resources	EX-10.23 5 dex1023.htm COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT\nExhibit 10.23\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\nEric Dean Sprunk (“EMPLOYEE”)\n \nand\nNIKE, Inc., divisions, subsidiaries\nand affiliates. (“NIKE”):\nRECITALS:\nA.  This Covenant Not to Compete and Non-Disclosure Agreement is executed upon initial employment or upon the EMPLOYEE’s\nadvancement with NIKE and is a condition of such employment or advancement.\nB.  Over the course of EMPLOYEE’s employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to\ndevelop confidential information peculiar to NIKE’s business and not generally known to the public as defined below (“Protected Information”). It is\nanticipated that EMPLOYEE will continue to be exposed to Protected Information of greater sensitivity as EMPLOYEE advances in the company.\nC.  The nature of NIKE’s business is highly competitive and disclosure of any Protected Information would result in severe damage to NIKE\nand be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected Information of NIKE can be used to NIKE’s detriment\nanywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1.  Covenant Not to Compete.\n(@) Competition Restriction. During EMPLOYEE’s employment by NIKE, under the terms of any employment contract or\notherwise, and for one year thereafter, (the “Restriction Period”), EMPLOYEE will not directly or indirectly, own, manage, control, or participate in\nthe ownership,\nmanagement or control of, or be employed by, consult for, or be connected in any manner with, any business engaged anywhere in the world in the\nathletic footwear, athletic apparel or sports equipment and accessories business, or any other business which directly competes with NIKE or any of\nits parent, subsidiaries or affiliated corporations ( “Competitor”). By way of illustration only, examples of NIKE competitors include, but are not\nlimited to: Adidas, FILA, Reebok, Puma, Champion, Oakley, DKNY, Converse, Asics, Saucony, New Balance, Ralph Lauren/Polo Sport, B.U.M,\nFUBU, The Gap, Tommy Hilfiger, Umbro, Northface, Venator (Foot lockers), Sports Authority, Columbia Sportswear, Wilson, Mizuno, Callaway\nGolf and Titleist. This provision is subject to NIKE’s option to waive all or any portion of the Restriction Period as more specifically provided\nbelow.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall automatically\ntoll from the date of the first breach, and all subsequent breaches, until the resolution of the breach through private settlement, judicial or other\naction, including all appeals. The Restriction Period shall continue upon the effective date of any such settlement judicial or other resolution. NIKE\nshall not be obligated to pay EMPLOYEE the additional compensation described in paragraph 1(d) below during any period of time in which this\nAgreement is tolled due to EMPLOYEE’s breach. In the event EMPLOYEE receives such additional compensation after any such breach,\nEMPLOYEE must immediately reimburse NIKE in the amount of all such compensation upon the receipt of a written request by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the Restriction Period or\nto limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a portion of the\nRestriction Period is waived, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to compete has\nbeen waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above, should NIKE terminate\nEMPLOYEE’s employment and elect to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a monthly payment equal to one\nhundred percent (100%) of EMPLOY EE’s last monthly base salary while the Restriction Period is in effect. If EMPLOYEE voluntarily terminates\nemployment and NIKE elects to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a monthly severance payment equal to fifty\npercent (50%) of EMPLOYEE’s last monthly base salary while the Restriction Period is in effect. The first payment to EMPLOYEE of additional\nconsideration shall follow on the next applicable pay period after the election to enforce the non-competition agreement, payable in accordance with\nNIKE'’s payroll practices.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE’s new\nemployer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period, wherever\nlocated and regardless of whether such employer is a competitor of NIKE.\n3.  Non-Disclosure Agreement.\n(@) Protected Information Defined. “Protected Information” shall mean all proprietary information, in whatever form and format, of\nNIKE and all information provided to NIKE by third parties which NIKE is obligated to keep confidential. EMPLOYEE agrees that any and all\ninformation to which EMPLOYEE has access concerning NIKE projects and internal NIKE information is Protected Information, whether in verbal\nform, machine-readable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting the foregoing,\nProtected Information includes information relating to NIKE’s research and development activities, its intellectual property and the filing or\npendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor lists, contract\nfactory lists, pricing information, manufacturing plans, business and marketing plans, sales information, methods of operation, manufacturing\nprocesses and methods, products, and personnel information.\n(b)  Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information that is or becomes part\nof the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, employees shall be permitted to retain as part of their\npersonal portfolio copies of the employees’ original artwork and designs, provided the artwork or designs have become part of the public domain. In\nany dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be by clear and\nconvincing evidence.\n(c) Employee’s Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter, EMPLOYEE\nwill hold in confidence and protect all Protected Information and will not, at any time, directly or indirectly, use any Protected Information for any\npurpose outside the scope of EMPLOYEE’s employment with NIKE or disclose any Protected Information to any third person or organization\nwithout the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE will not ever copy, transmit, reproduce,\nsummarize, quote, publish or make any commercial or other use whatsoever of any Protected Information without the prior written consent of NIKE.\nEMPLOYEE will also take reasonable security precautions and such other actions as may be necessary to insure that there is no use or disclosure,\nintentional or inadvertent, of Protected Information in violation of this Agreement.\n \n4.  Return of Protected Information. At the request of NIKE at anytime, and in any event, upon termination of employment, EMPLOYEE\nshall immediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other similar repositories of\nor containing Protected Information, and all copies thereof, then in EMPLOYEE’s possession or under EMPLOYEE’s control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if\nEMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person employed or not\nemployed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such\nincident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information. NIKE\nshall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by operation of any\npayment under Paragraph 1(d) of this Agreement.\n6. Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE will not directly or\nindirectly , solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or business organization, any\nNIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not such employment is pursuant to a\nwritten agreement or is at will.\n7.  Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement, NIKE shall be entitled to an\naccounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly has realized\nand/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid by NIKE\npursuant to Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to\nwhich NIKE may be entitled at law or in equity.\n8.  General Provisions.\n(@) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE’s employment, regardless of the reason for\ntermination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will be effective unless\nexecuted in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts specifically referred to\ntherein.\n(c)  Severability. Each provision herein will be treated as a separate and independent clause and unenforceability of any one clause\nwill in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable or invalid\nby a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that jurisdiction.\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE’s employment hereunder, shall be construed according to the\nlaws of the State of Oregon. EMPLOYEE further hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and venue for any\naction or proceeding arising out of or relating to this Agreement shall lie in the state and federal courts located in Oregon.\nEMPLOYEE NIKE, Inc.\n/s/ Eric Dean Sprunk By /s/ Jeffrey M. Cava\nName: Jeffrey M. Cava\nDATE 04/18/01 Title:  Vice President, Global Human Resources	EX-10.23 5 dlex1023.htm COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT\nExhibit 10.23\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\nEric Dean Sprunk ("EMPLOYEE")\nand\nNIKE, Inc., divisions, subsidiaries\nand affiliates. ("NIKE"):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon initial employment or upon the EMPLOYEE'S\nadvancement with NIKE and is a condition of such employment or advancement.\nB. Over the course of EMPLOYEE'S employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to\ndevelop confidential information peculiar to NIKE's business and not generally known to the public as defined below ("Protected Information").\nIt\nis\nanticipated that EMPLOYEE will continue to be exposed to Protected Information of greater sensitivity as EMPLOYEE advances in the company.\nC.\nThe nature of NIKE's business is highly competitive and disclosure of any Protected Information would result in severe damage to NIKE\nand be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected Information of NIKE can be used to NIKE's detriment\nanywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete.\n(a) Competition Restriction During EMPLOYEE'S employment by NIKE, under the terms of any employment contract\nor\notherwise, and for one year thereafter, (the "Restriction Period"), EMPLOYEE will not directly or indirectly, own, manage, control, or participate in\nthe ownership,\nmanagement or control of, or be employed by, consult for, or be connected in any manner with, any business engaged anywhere in the world in the\nathletic footwear, athletic apparel or sports equipment and accessories business, or any other business which directly competes with NIKE or any\nof\nits parent, subsidiaries or affiliated corporations C "Competitor"). By way of illustration only, examples of NIKE competitors include, but are not\nlimited to: Adidas, FILA, Reebok, Puma, Champion, Oakley, DKNY, Converse, Asics, Saucony, New Balance, Ralph Lauren/Polo Sport, B.U.M,\nFUBU, The Gap, Tommy Hilfiger, Umbro, Northface, Venator (Foot lockers), Sports Authority, Columbia Sportswear, Wilson, Mizuno, Callaway\nGolf and Titleist. This provision is subject to NIKE's option to waive all or any portion of the Restriction Period as more specifically provided\nbelow.\n(b)\nExtension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall automatically\ntoll from the date of the first breach, and all subsequent breaches, until the resolution of the breach through private settlement, judicial or other\naction, including all appeals. The Restriction Period shall continue upon the effective date of any such settlement judicial or other resolution. NIKE\nshall not be obligated to pay EMPLOYEE the additional compensation described in paragraph 1(d) below during any period of time in which this\nAgreement is tolled due to EMPLOYEE'S breach. In the event EMPLOYEE receives such additional compensation after any such breach,\nEMPLOYEE must immediately reimburse NIKE in the amount of all such compensation upon the receipt of a written request by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the Restriction Period or\nto limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a portion of the\nRestriction Period is waived, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to compete has\nbeen waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above, should NIKE terminate\nEMPLOYEE's employment and elect to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a monthly payment equal to one\nhundred percent (100%) of EMPLOYEE'S last monthly base salary while the Restriction Period is in effect. If EMPLOYEE voluntarily terminates\nemployment and NIKE elects to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a monthly severance payment equal to fifty\npercent (50%) of EMPLOYEE'S last monthly base salary while the Restriction Period is in effect. The first payment to EMPLOYEE of additional\nconsideration shall follow on the next applicable pay period after the election to enforce the non-competition agreement, payable in accordance with\nNIKE's payroll practices.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE'S new\nemployer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period, wherever\nlocated and regardless of whether such employer is a competitor of NIKE.\n3.\nNon-Disclosure Agreement.\n(a) Protected Information Defined. "Protected Information" shall mean all proprietary information, in whatever form and format, of\nNIKE and all information provided to NIKE by third parties which NIKE is obligated to keep confidential. EMPLOYEE agrees that any and all\ninformation to which EMPLOYEE has access concerning NIKE projects and internal NIKE information is Protected Information, whether in verbal\nform, machine-readable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting the foregoing,\nProtected Information includes information relating to NIKE's research and development activities, its intellectual property and the filing or\npendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor lists, contract\nfactory lists, pricing information, manufacturing plans, business and marketing plans, sales information methods of operation, manufacturing\nprocesses and methods, products, and personnel information.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information that is or becomes part\nof the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, employees shall be permitted to retain as part of their\npersonal portfolio copies of the employees' original artwork and designs, provided the artwork or designs have become part of the public domain. In\nany dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be by clear and\nconvincing evidence.\n(c)\nEmployee's Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter, EMPLOYEE\nwill hold in confidence and protect all Protected Information and will not, at any time, directly or indirectly, use any Protected Information for any\npurpose outside the scope of EMPLOYEE'S employment with NIKE or disclose any Protected Information to any third person or organization\nwithout the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE will not ever copy, transmit, reproduce,\nsummarize, quote, publish or make any commercial or other use whatsoever of any Protected Information without the prior written consent of NIKE.\nEMPLOYEE will also take reasonable security precautions and such other actions as may be necessary to insure that there is no use or disclosure,\nintentional or inadvertent, of Protected Information in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at anytime, and in any event, upon termination of employment, EMPLOYEE\nshall immediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other similar repositories of\nor\ncontaining Protected Information, and all copies thereof, then in EMPLOYEE'S possession or under EMPLOYEE'S control.\n5.\nUnauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE wil notify NIKE immediately\nif\nEMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person employed or not\nemployed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such\nincident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information. NIKE\nshall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by operation of any\npayment under Paragraph 1(d) of this Agreement.\n6. Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE will not directly or\nindirectly solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or business organization, any\nNIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not such employment is pursuant to a\nwritten agreement or is at will.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement, NIKE shall be entitled to an\naccounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly has realized\nand/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid by NIKE\npursuant to Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies\nto\nwhich NIKE may be entitled at law or in equity.\n8.\nGeneral Provisions.\n(a)\nSurvival. This Agreement shall continue in effect after the termination of EMPLOYEE'S employment, regardless of the reason for\ntermination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will be effective unless\nexecuted in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts specifically referred to\ntherein.\n(c) Severability.. Each provision herein will be treated as a separate and independent clause and unenforceability of any one clause\nwill in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable or invalid\nby a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that jurisdiction.\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE'S employment hereunder, shall be construed according to the\nlaws\nof\nthe State of Oregon. EMPLOYEE further hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and venue for any\naction or proceeding arising out of or relating to this Agreement shall lie in the state and federal courts located in Oregon.\nEMPLOYEE\nNIKE, Inc.\n/s/ Eric Dean Sprunk\nBy\n/s/ Jeffrey M. Cava\nName: Jeffrey M. Cava\nDATE 04/18/01\nTitle: Vice President, Global Human Resources	EX-10.23 5 dex1023.htm COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT\nExhibit 10.23\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\nEric Dean Sprunk (“EMPLOYEE”)\nand\nNIKE, Inc., divisions, subsidiaries\nand affiliates. (“NIKE”):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon initial employment or upon the EMPLOYEE’s\nadvancement with NIKE and is a condition of such employment or advancement.\nB. Over the course of EMPLOYEE’s employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to\ndevelop confidential information peculiar to NIKE’s business and not generally known to the public as defined below (“Protected Information”). It is\nanticipated that EMPLOYEE will continue to be exposed to Protected Information of greater sensitivity as EMPLOYEE advances in the company.\nC. The nature of NIKE’s business is highly competitive and disclosure of any Protected Information would result in severe damage to NIKE\nand be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected Information of NIKE can be used to NIKE’s detriment\nanywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete.\n(a) Competition Restriction. During EMPLOYEE’s employment by NIKE, under the terms of any employment contract or\notherwise, and for one year thereafter, (the “Restriction Period”), EMPLOYEE will not directly or indirectly, own, manage, control, or participate in\nthe ownership,\nmanagement or control of, or be employed by, consult for, or be connected in any manner with, any business engaged anywhere in the world in the\nathletic footwear, athletic apparel or sports equipment and accessories business, or any other business which directly competes with NIKE or any of\nits parent, subsidiaries or affiliated corporations ( “Competitor”). By way of illustration only, examples of NIKE competitors include, but are not\nlimited to: Adidas, FILA, Reebok, Puma, Champion, Oakley, DKNY, Converse, Asics, Saucony, New Balance, Ralph Lauren/Polo Sport, B.U.M,\nFUBU, The Gap, Tommy Hilfiger, Umbro, Northface, Venator (Foot lockers), Sports Authority, Columbia Sportswear, Wilson, Mizuno, Callaway\nGolf and Titleist. This provision is subject to NIKE’s option to waive all or any portion of the Restriction Period as more specifically provided\nbelow.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall automatically\ntoll from the date of the first breach, and all subsequent breaches, until the resolution of the breach through private settlement, judicial or other\naction, including all appeals. The Restriction Period shall continue upon the effective date of any such settlement judicial or other resolution. NIKE\nshall not be obligated to pay EMPLOYEE the additional compensation described in paragraph 1(d) below during any period of time in which this\nAgreement is tolled due to EMPLOYEE’s breach. In the event EMPLOYEE receives such additional compensation after any such breach,\nEMPLOYEE must immediately reimburse NIKE in the amount of all such compensation upon the receipt of a written request by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the Restriction Period or\nto limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a portion of the\nRestriction Period is waived, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to compete has\nbeen waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above, should NIKE terminate\nEMPLOYEE’s employment and elect to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a monthly payment equal to one\nhundred percent (100%) of EMPLOYEE’s last monthly base salary while the Restriction Period is in effect. If EMPLOYEE voluntarily terminates\nemployment and NIKE elects to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a monthly severance payment equal to fifty\npercent (50%) of EMPLOYEE’s last monthly base salary while the Restriction Period is in effect. The first payment to EMPLOYEE of additional\nconsideration shall follow on the next applicable pay period after the election to enforce the non-competition agreement, payable in accordance with\nNIKE’s payroll practices.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE’s new\nemployer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period, wherever\nlocated and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure Agreement.\n(a) Protected Information Defined. “Protected Information” shall mean all proprietary information, in whatever form and format, of\nNIKE and all information provided to NIKE by third parties which NIKE is obligated to keep confidential. EMPLOYEE agrees that any and all\ninformation to which EMPLOYEE has access concerning NIKE projects and internal NIKE information is Protected Information, whether in verbal\nform, machine-readable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting the foregoing,\nProtected Information includes information relating to NIKE’s research and development activities, its intellectual property and the filing or\npendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor lists, contract\nfactory lists, pricing information, manufacturing plans, business and marketing plans, sales information, methods of operation, manufacturing\nprocesses and methods, products, and personnel information.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information that is or becomes part\nof the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, employees shall be permitted to retain as part of their\npersonal portfolio copies of the employees’ original artwork and designs, provided the artwork or designs have become part of the public domain. In\nany dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be by clear and\nconvincing evidence.\n(c) Employee’s Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter, EMPLOYEE\nwill hold in confidence and protect all Protected Information and will not, at any time, directly or indirectly, use any Protected Information for any\npurpose outside the scope of EMPLOYEE’s employment with NIKE or disclose any Protected Information to any third person or organization\nwithout the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE will not ever copy, transmit, reproduce,\nsummarize, quote, publish or make any commercial or other use whatsoever of any Protected Information without the prior written consent of NIKE.\nEMPLOYEE will also take reasonable security precautions and such other actions as may be necessary to insure that there is no use or disclosure,\nintentional or inadvertent, of Protected Information in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at anytime, and in any event, upon termination of employment, EMPLOYEE\nshall immediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other similar repositories of\nor containing Protected Information, and all copies thereof, then in EMPLOYEE’s possession or under EMPLOYEE’s control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if\nEMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person employed or not\nemployed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such\nincident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information. NIKE\nshall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by operation of any\npayment under Paragraph 1(d) of this Agreement.\n6. Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE will not directly or\nindirectly , solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or business organization, any\nNIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not such employment is pursuant to a\nwritten agreement or is at will.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement, NIKE shall be entitled to an\naccounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly has realized\nand/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid by NIKE\npursuant to Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to\nwhich NIKE may be entitled at law or in equity.\n8. General Provisions.\n(a) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE’s employment, regardless of the reason for\ntermination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will be effective unless\nexecuted in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts specifically referred to\ntherein.\n(c) Severability. Each provision herein will be treated as a separate and independent clause and unenforceability of any one clause\nwill in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable or invalid\nby a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that jurisdiction.\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE’s employment hereunder, shall be construed according to the\nlaws of the State of Oregon. EMPLOYEE further hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and venue for any\naction or proceeding arising out of or relating to this Agreement shall lie in the state and federal courts located in Oregon.\nEMPLOYEE\nNIKE, Inc.\n/s/ Eric Dean Sprunk\nBy\n/s/ Jeffrey M. Cava\nDATE 04/18/01\nName:\nTitle:\nJeffrey M. Cava\nVice President, Global Human Resources
+031470434423a8c40105a4b404ced88b.pdf	effective_date jurisdiction party term	EX-99.(E)(2) 3 d450961dex99e2.htm EX-(E)(2)\nExhibit (e)(2)\nLOGO\nConfidential\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (“Agreement”) is effective as of February 10, 2017 (“Effective Date”), between Kite Pharma,\nInc., a Delaware corporation having a place of business at 2225 Colorado Avenue, Santa Monica, CA 90404 (“Kite”) and Gilead Sciences, Inc.,\na Delaware corporation having a place of business at 333 Lakeside Drive, Foster City, CA 94404 (“Company”). Kite and Company may be\nreferred to herein individually as a “Party” and collectively as the “Parties.”\nThe Parties desire to exchange Confidential Information (as defined below) for the Purpose (as defined below) and desire that their\nrespective Confidential Information be maintained in accordance with this Agreement. Therefore, the Parties agree as follows:\n1. Definitions.\n1.1\n“Affiliate” means, with respect to a Party, any person, corporation or other entity that directly or indirectly controls, is controlled by,\nor is under common control with such Party. For purposes of this definition, “control” means possession of the power to direct the\nmanagement of such entity or person, whether through ownership of more than fifty percent (50%) of voting securities, by contract or\notherwise.\n1.2\n“Confidential Information” means any and all information and/or data disclosed to the Receiving Party (as defined below) by the\nDisclosing Party (as defined below) under this Agreement, and may include, without limitation, know-how, data, designs, plans,\nspecifications, protocols, documents, trade secrets, ideas, concepts, products, processes, prototypes, formulas, works-in-progress,\nsystems, technologies, manufacturing or marketing techniques, business or financial information; provided, however, that\nConfidential Information shall not include, and neither party shall disclose to the other party, any non-publicly disclosed chemical\nstructures of its compounds or sequence information, including amino acid and nucleic acid sequences, of its proteins, molecules or\nother proprietary substances, unless such disclosure is requested in advance in writing by the Receiving Party and thereafter later\nagreed to in writing by both parties, in which case such disclosed chemical structures and/or sequence information (as specifically\nindicated in any such subsequent writing) shall be deemed Confidential Information of the Disclosing Party under this Agreement.\n1.3\n“Disclosing Party” means the Party or its Representatives divulging Confidential Information to the Receiving Party (as defined\nbelow).\n1.4\n“Purpose” means to discuss, evaluate, negotiate and possibly enter into a business transaction involving Kite (and/or any of its\nAffiliates) and the Company (and/or any of its Affiliates).\n1.5\n“Receiving Party” means the Party or its Representatives receiving Confidential Information from the Disclosing Party.\n1.6\n“Representatives” means, with respect to a Party, such Party’s Affiliates and its (and its Affiliates’) respective officers (including\ndirectors), trustees, employees, agents, professional advisors, non-employee staff and consultants, including legal and financial\nadvisors.\n2. Duties.\n2.1 Restrictions on Use and Disclosure. Each Receiving Party agrees that it shall hold the Disclosing Party’s Confidential Information in\nsecrecy and confidence and shall not disclose any of the Disclosing Party’s Confidential Information to a third party, other than the\nReceiving Party’s Representatives as permitted by Section 2.2 below, nor use it for any purpose other than the Purpose, without the\nexpress\n1of5\nConfidential\nwritten consent of the Disclosing Party. Each Receiving Party agrees to use at least the same degree of care to prevent any\nunauthorized access, disclosure or publication of the Confidential Information of the Disclosing Party as the Receiving Party uses to\nprotect its own valuable Confidential Information but in no event less than a commercially reasonable degree of care.\n2.2 Disclosures to Representatives. The Receiving Party shall only disclose such Confidential Information to those Representatives who\nhave a need to know such Confidential Information for the Purpose. All Representatives to whom the Confidential Information is\ndisclosed shall be subject to legally binding nondisclosure and nonuse restrictions that are at least as restrictive as the terms of this\nAgreement. Each Party, as a Receiving Party hereto, shall be responsible for the acts and omissions of its respective Representatives\nunder this Agreement as if such acts and omissions were performed (or not performed) by the Receiving Party. If an act or omission\nof a Representative of a Receiving Party would, if committed by the Receiving Party, constitute a breach of this Agreement, such act\nor omission shall constitute a breach of this Agreement by such Receiving Party.\n2.3 Form of Information. Confidential Information may be disclosed orally, visually, or in a tangible or electronic written form.\nConfidential Information may be disclosed directly or indirectly, by Disclosing Party or the Disclosing Party’s Representatives to the\nReceiving Party or the Receiving Party’s Representatives.\n2.4 Attorney-Client Privilege. Nothing in this Agreement obligates either Party to reveal material subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege. However, to the extent that any Confidential Information may include\nmaterial subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or\nthreatened legal proceedings or governmental investigations, the Parties understand and agree that they have a commonality of\ninterest with respect to such matters and it is their desire, intention and mutual understanding that the sharing, whether inadvertent or\nintentional, of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential\nInformation provided by either Party that is entitled to protection under the attorney-client privilege, work product doctrine or other\napplicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense\ndoctrine.\n2.5 Other Information. Neither Company nor Kite shall, without the other party’s consent, disclose to any other person (except for\nRepresentatives as permitted by Section 2.1 and 2.2 above) either the existence of this Agreement, the fact that investigations,\ndiscussions or negotiations are or may be taking place concerning a possible transaction or any facts related thereto (“Other\nInformation”).\n3. Exceptions and Other Matters.\n3.1 Exceptions. Notwithstanding anything to the contrary in this Agreement, Confidential Information does not include any information\nthat:\n(a) is known by the Receiving Party prior to the time of its receipt, such prior knowledge being documented by written evidence\npredating the date that such information was disclosed hereunder;\n(b) is at the time of disclosure or thereafter becomes published or otherwise part of the public domain without breach of this\nAgreement by the Receiving Party;\n(c) is disclosed to the Receiving Party by a third party who is not under an obligation to maintain the confidentiality of the\ninformation; or\n(d) is independently developed by the Receiving Party without any use of or reference to Confidential Information of the\nDisclosing Party, such independent development being documented by contemporaneous written evidence.\n2of5\nConfidential\n3.2 Partial Disclosures; Combinations. Specific aspects or details of Confidential Information shall not be deemed to be within the public\ndomain or in the possession of a Receiving Party merely because the Confidential Information is embraced by more general\ninformation in the public domain or in the possession of such party. Further, any combination of individual elements of Confidential\nInformation shall be considered Confidential Information and shall not be considered in the public domain or in the possession of a\nReceiving Party merely because one or more individual elements of such combination are in the public domain or in the possession of\nsuch Party; rather such combination shall only be considered in the public domain or in the possession of a Receiving Party if the\ncombination of each of the individual elements of the combination is in the public domain or in the possession of the Receiving Party.\n3.3 Disclosure Required by Court Order or Government. Notwithstanding anything in this Agreement to the contrary, Receiving Party\nmay disclose Confidential Information of the Disclosing Party and Other Information to the extent disclosure is required by\napplicable law, rule, regulation, governmental or court order, pursuant to subpoena or other governmental authority, provided that the\nReceiving Party shall promptly inform the Disclosing Party in writing of such disclosure requirement so that the Disclosing Party\nmay seek a protective order or other appropriate remedy. The Receiving Party shall reasonably cooperate with Disclosing Party in\nconnection with the Disclosing Party’s efforts to obtain any such order or other remedy. In the event that no such protective order or\nother remedy is obtained, then the Receiving Party may furnish only that portion of the Confidential Information which the Receiving\nParty is advised by counsel (including its internal legal counsel) that it is legally required to disclose.\n3.4 No Representation or Warranty By Discloser. The Disclosing Party makes no express or implied representation or warranty as to the\naccuracy, completeness or utility of its Confidential Information. THE RECEIVING PARTY ACKNOWLEDGES THAT THE\nCONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY IS PROVIDED “AS IS,” WITHOUT ANY WARRANTY,\nEXPRESS OR IMPLIED.\n3.5 No License Implied. This Agreement shall not be construed to grant to Receiving Party any license or other rights with respect to the\nConfidential Information.\n3.6 Ownership; Return/Destruction. All Confidential Information and all materials containing Confidential Information that are delivered\nto the Receiving Party by the Disclosing Party or the Disclosing Party’s Representatives under this Agreement are and remain the\nsole and exclusive property of the Disclosing Party. Upon written request of the Disclosing Party, the Receiving Party shall, at its own\ncost and expense, promptly destroy or return to the Disclosing Party all such materials (if returned, in the medium provided by\nDisclosing Party) and destroy all copies of the foregoing or any portion thereof; provided, however, that Receiving Party may retain\none copy of the foregoing materials in a secure location for record-keeping purposes. Neither the Receiving Party nor any of its\nRepresentatives shall be required to delete or destroy any electronic back-up tapes or other electronic back-up files that have been\ncreated solely by their automatic or routine archiving and back-up procedures, to the extent created and retained in a manner\nconsistent with its or their standard archiving and back-up procedures.\n4. Term and Termination.\n4.1 Term. The term of this Agreement during which Confidential Information may be disclosed by one Party to the other Party shall\nbegin on the Effective Date and end five (5) years after the Effective Date, unless extended by mutual agreement.\n4.2 Survival. The Receiving Party’s obligations with respect to Confidential Information under Section 2 shall survive termination or\nexpiration of this Agreement, and shall expire seven (7) years from the Effective Date.\n3of5\nConfidential\n5. Miscellaneous.\n5.1 No Future Obligations. Nothing in this Agreement shall be deemed to create any obligation on the part of either Party to continue\ndiscussions or to enter into a further agreement. Either party may terminate discussions or negotiations at any time\n5.2 Assignment. Neither this Agreement nor the obligations hereunder may be assigned or otherwise transferred by a Party without\nwritten consent of the other Party, except in connection with the sale of all or substantially all of a Party’s assets, equity or business or\na merger, reorganization or consolidation involving at least fifty percent (50%) or more of the voting equity securities of the Party.\nThis Agreement shall be binding upon the parties, their successors and their permitted assigns.\n5.3 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without\nreference to its rules of conflicts of laws.\n5.4 Transfer Restrictions Under Export Control Laws. Each Party agrees that it and its Representatives shall comply with any applicable\nexport control laws, rules and regulations relating to the export of technical information, materials or products in connection with any\ndisclosure of Confidential Information under this Agreement.\n5.5 Notices. Each notice required or permitted hereunder shall be in writing and sufficient if delivered personally, sent by a nationally-\nrecognized overnight courier or sent by registered or certified mail, postage prepaid, return receipt requested, to the Parties at the\naddresses indicated in the introductory paragraph of this Agreement, to the attention of the signatories below, with a copy, in the case\nof Company, to the General Counsel. Either Party may change its address by giving the other Party written notice, delivered in\naccordance with this Section 5.5 .\n5.6 Waivers and Amendments; Preservation of Remedies. This Agreement may be amended, or the terms and conditions may be waived,\nonly by a written agreement signed by both Parties. No delay on the part of any Party in exercising any right hereunder shall operate\nas a waiver, nor shall any partial exercise of any right hereunder preclude any other exercise thereof. The rights and remedies herein\nare cumulative and are not exclusive of any rights or remedies which any Party may otherwise have at law or in equity.\n5.7 Injunctive Relief. The Parties acknowledge that a breach of this Agreement may result in irreparable harm and damages to a Party in\nan amount difficult to ascertain and which cannot be adequately compensated by a monetary award. Accordingly, in addition to any\nof the relief to which any Party may be entitled under this Agreement, at law or in equity, such Party shall be entitled to seek\ntemporary and permanent injunctive relief from any breach or threatened breach without the requirement of the Party bringing such\naction to post any bond or other security with the court in connection therewith.\n5.8 Entire Agreement; Severability. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter\nhereof and any express or implied agreements, either oral or written, are superseded by the terms of this Agreement. If any one or\nmore provisions of this Agreement is held invalid, illegal or unenforceable in any respect by a court having competent jurisdiction,\nthe validity, legality and enforceability of this Agreement and the remaining provisions contained herein shall not in any way be\naffected or impaired thereby.\n5.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be an original as against either Party whose\nsignature appears thereon, but all of which taken together shall constitute but one and the same instrument. An executed facsimile or\nelectronic scanned copy of this Agreement shall have the same force and effect as an original.\n4of5\nConfidential\nKITE PHARMA, INC.\nGILEAD SCIENCES, INC.\nBy: /s/ Veer Bhavnagri\nBy: /s/ Elizabeth P. Bhatt\nName: Veer Bhavnagri\nName: Elizabeth Bhatt\nTitle: VP Corporate Counsel\nTitle: Vice President, Corporate Development\nDate: February 10, 2017\nDate: February 15, 2017\n5of5	EX-99.(E)(2) 3 d450961dex99e2.htm EX-(E)(2) »LOGO Exhibit (e)(2)\nConfidential\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (“Agreement”) is effective as of February 10, 2017 (“Effective Date”), between Kite Pharma, Inc., a Delaware corporation having a place of business at 2225 Colorado Avenue, Santa Monica, CA 90404 (“Kite”) and Gilead Sciences, Inc., a Delaware corporation having a place of business at 333 Lakeside Drive, Foster City, CA 94404 (“Company”). Kite and Company may be referred to herein individually as a “Party” and collectively as the “Parties.” The Parties desire to exchange Confidential Information (as defined below) for the Purpose (as defined below) and desire that their respective Confidential Information be maintained in accordance with this Agreement. Therefore, the Parties agree as follows: 1. Definitions. 1.1\n1.2\n1.3\n1.4\n1.5\n1.6\n“Affiliate” means, with respect to a Party, any person, corporation or other entity that directly or indirectly controls, is controlled by,\nor is under common control with such Party. For purposes of this definition, “control” means possession of the power to direct the\nmanagement of such entity or person, whether through ownership of more than fifty percent (50%) of voting securities, by contract or\notherwise.\n“Confidential Information” means any and all information and/or data disclosed to the Receiving Party (as defined below) by the\nDisclosing Party (as defined below) under this Agreement, and may include, without limitation, know-how, data, designs, plans,\nspecifications, protocols, documents, trade secrets, ideas, concepts, products, processes, prototypes, formulas, works-in-progress,\nsystems, technologies, manufacturing or marketing techniques, business or financial information; provided, however, that\nConfidential Information shall not include, and neither party shall disclose to the other party, any non-publicly disclosed chemical\nstructures of its compounds or sequence information, including amino acid and nucleic acid sequences, of its proteins, molecules or\nother proprietary substances, unless such disclosure is requested in advance in writing by the Receiving Party and thereafter later\nagreed to in writing by both parties, in which case such disclosed chemical structures and/or sequence information (as specifically\nindicated in any such subsequent writing) shall be deemed Confidential Information of the Disclosing Party under this Agreement.\n“Disclosing Party” means the Party or its Representatives divulging Confidential Information to the Receiving Party (as defined\nbelow).\n“Purpose” means to discuss, evaluate, negotiate and possibly enter into a business transaction involving Kite (and/or any of its\nAffiliates) and the Company (and/or any of its Affiliates).\n“Receiving Party” means the Party or its Representatives receiving Confidential Information from the Disclosing Party.\n“Representatives” means, with respect to a Party, such Party’s Affiliates and its (and its Affiliates’) respective officers (including\ndirectors), trustees, employees, agents, professional advisors, non-employee staff and consultants, including legal and financial\nadvisors.\n2. Duties. 2.1\nRestrictions on Use and Disclosure. Each Receiving Party agrees that it shall hold the Disclosing Party’s Confidential Information in\nsecrecy and confidence and shall not disclose any of the Disclosing Party’s Confidential Information to a third party, other than the\nReceiving Party’s Representatives as permitted by Section 2.2 below, nor use it for any purpose other than the Purpose, without the\nexpress\n1of5\nConfidential\nwritten consent of the Disclosing Party. Each Receiving Party agrees to use at least the same degree of care to prevent any\nunauthorized access, disclosure or publication of the Confidential Information of the Disclosing Party as the Receiving Party uses to\nprotect its own valuable Confidential Information but in no event less than a commercially reasonable degree of care.\n2.2 Disclosures to Representatives. The Receiving Party shall only disclose such Confidential Information to those Representatives who\nhave a need to know such Confidential Information for the Purpose. All Representatives to whom the Confidential Information is\ndisclosed shall be subject to legally binding nondisclosure and nonuse restrictions that are at least as restrictive as the terms of this\nAgreement. Each Party, as a Receiving Party hereto, shall be responsible for the acts and omissions of its respective Representatives\nunder this Agreement as if such acts and omissions were performed (or not performed) by the Receiving Party. If an act or omission\nof a Representative of a Receiving Party would, if committed by the Receiving Party, constitute a breach of this Agreement, such act\nor omission shall constitute a breach of this Agreement by such Receiving Party.\n2.3 Form of Information. Confidential Information may be disclosed orally, visually, or in a tangible or electronic written form.\nConfidential Information may be disclosed directly or indirectly, by Disclosing Party or the Disclosing Party’s Representatives to the\nReceiving Party or the Receiving Party’s Representatives.\n2.4 Attorney-Client Privilege. Nothing in this Agreement obligates either Party to reveal material subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege. However, to the extent that any Confidential Information may include\nmaterial subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or\nthreatened legal proceedings or governmental investigations, the Parties understand and agree that they have a commonality of\ninterest with respect to such matters and it is their desire, intention and mutual understanding that the sharing, whether inadvertent or\nintentional, of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential\nInformation provided by either Party that is entitled to protection under the attorney-client privilege, work product doctrine or other\napplicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense\ndoctrine.\n2.5 Other Information. Neither Company nor Kite shall, without the other party’s consent, disclose to any other person (except for\nRepresentatives as permitted by Section 2.1 and 2.2 above) either the existence of this Agreement, the fact that investigations,\ndiscussions or negotiations are or may be taking place concerning a possible transaction or any facts related thereto (“Other\nInformation”).\nExceptions and Other Matters.\n3.1 Exceptions. Notwithstanding anything to the contrary in this Agreement, Confidential Information does not include any information\nthat:\n(a)  is known by the Receiving Party prior to the time of its receipt, such prior knowledge being documented by written evidence\npredating the date that such information was disclosed hereunder;\n(b)  is at the time of disclosure or thereafter becomes published or otherwise part of the public domain without breach of this\nAgreement by the Receiving Party;\n(c)  isdisclosed to the Receiving Party by a third party who is not under an obligation to maintain the confidentiality of the\ninformation; or\n(d) isindependently developed by the Receiving Party without any use of or reference to Confidential Information of the\nDisclosing Party, such independent development being documented by contemporaneous written evidence.\n20f5\n3.2\n3.3\n3.4\n3.5\n3.6\nConfidential\nPartial Disclosures; Combinations. Specific aspects or details of Confidential Information shall not be deemed to be within the public\ndomain or in the possession of a Receiving Party merely because the Confidential Information is embraced by more general\ninformation in the public domain or in the possession of such party. Further, any combination of individual elements of Confidential\nInformation shall be considered Confidential Information and shall not be considered in the public domain or in the possession of a\nReceiving Party merely because one or more individual elements of such combination are in the public domain or in the possession of\nsuch Party; rather such combination shall only be considered in the public domain or in the possession of a Receiving Party if the\ncombination of each of the individual elements of the combination is in the public domain or in the possession of the Receiving Party.\nDisclosure Required by Court Order or Government. Notwithstanding anything in this Agreement to the contrary, Receiving Party\nmay disclose Confidential Information of the Disclosing Party and Other Information to the extent disclosure is required by\napplicable law, rule, regulation, governmental or court order, pursuant to subpoena or other governmental authority, provided that the\nReceiving Party shall promptly inform the Disclosing Party in writing of such disclosure requirement so that the Disclosing Party\nmay seek a protective order or other appropriate remedy. The Receiving Party shall reasonably cooperate with Disclosing Party in\nconnection with the Disclosing Party’s efforts to obtain any such order or other remedy. In the event that no such protective order or\nother remedy is obtained, then the Receiving Party may furnish only that portion of the Confidential Information which the Receiving\nParty is advised by counsel (including its internal legal counsel) that it is legally required to disclose.\nNo Representation or Warranty By Discloser. The Disclosing Party makes no express or implied representation or warranty as to the\naccuracy, completeness or utility of its Confidential Information. THE RECEIVING PARTY ACKNOWLEDGES THAT THE\nCONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY IS PROVIDED “AS IS,” WITHOUT ANY WARRANTY,\nEXPRESS OR IMPLIED.\nNo License Implied. This Agreement shall not be construed to grant to Receiving Party any license or other rights with respect to the\nConfidential Information.\nOwnership; Return/Destruction. All Confidential Information and all materials containing Confidential Information that are delivered\nto the Receiving Party by the Disclosing Party or the Disclosing Party’s Representatives under this Agreement are and remain the\nsole and exclusive property of the Disclosing Party. Upon written request of the Disclosing Party, the Receiving Party shall, at its own\ncost and expense, promptly destroy or return to the Disclosing Party all such materials (if returned, in the medium provided by\nDisclosing Party) and destroy all copies of the foregoing or any portion thereof; provided, however, that Receiving Party may retain\none copy of the foregoing materials in a secure location for record-keeping purposes. Neither the Receiving Party nor any of its\nRepresentatives shall be required to delete or destroy any electronic back-up tapes or other electronic back-up files that have been\ncreated solely by their automatic or routine archiving and back-up procedures, to the extent created and retained in a manner\nconsistent with its or their standard archiving and back-up procedures.\n4, Term and Termination. 4.1\n4.2\nTerm. The term of this Agreement during which Confidential Information may be disclosed by one Party to the other Party shall\nbegin on the Effective Date and end five (5) years after the Effective Date, unless extended by mutual agreement.\nSurvival. The Receiving Party’s obligations with respect to Confidential Information under Section 2 shall survive termination or\nexpiration of this Agreement, and shall expire seven (7) years from the Effective Date.\n30f5\nConfidential\nMiscellaneous. 5.1\n5.2\n5.3\n5.4\n5.5\n5.6\n5.7\n5.8\n5.9\nNo Future Obligations. Nothing in this Agreement shall be deemed to create any obligation on the part of either Party to continue\ndiscussions or to enter into a further agreement. Either party may terminate discussions or negotiations at any time\nAssignment. Neither this Agreement nor the obligations hereunder may be assigned or otherwise transferred by a Party without\nwritten consent of the other Party, except in connection with the sale of all or substantially all of a Party’s assets, equity or business or\na merger, reorganization or consolidation involving at least fifty percent (50%) or more of the voting equity securities of the Party.\nThis Agreement shall be binding upon the parties, their successors and their permitted assigns.\nApplicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without\nreference to its rules of conflicts of laws.\nTransfer Restrictions Under Export Control Laws. Each Party agrees that it and its Representatives shall comply with any applicable\nexport control laws, rules and regulations relating to the export of technical information, materials or products in connection with any\ndisclosure of Confidential Information under this Agreement.\nNotices. Each notice required or permitted hereunder shall be in writing and sufficient if delivered personally, sent by a nationally-\nrecognized overnight courier or sent by registered or certified mail, postage prepaid, return receipt requested, to the Parties at the\naddresses indicated in the introductory paragraph of this Agreement, to the attention of the signatories below, with a copy, in the case\nof Company, to the General Counsel. Either Party may change its address by giving the other Party written notice, delivered in\naccordance with this Section 5.5.\nWaivers and Amendments; Preservation of Remedies. This Agreement may be amended, or the terms and conditions may be waived,\nonly by a written agreement signed by both Parties. No delay on the part of any Party in exercising any right hereunder shall operate\nas a waiver, nor shall any partial exercise of any right hereunder preclude any other exercise thereof. The rights and remedies herein\nare cumulative and are not exclusive of any rights or remedies which any Party may otherwise have at law or in equity.\nInjunctive Relief. The Parties acknowledge that a breach of this Agreement may result in irreparable harm and damages to a Party in\nan amount difficult to ascertain and which cannot be adequately compensated by a monetary award. Accordingly, in addition to any\nof the relief to which any Party may be entitled under this Agreement, at law or in equity, such Party shall be entitled to seek\ntemporary and permanent injunctive relief from any breach or threatened breach without the requirement of the Party bringing such\naction to post any bond or other security with the court in connection therewith.\nEntire Agreement; Severability. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter\nhereof and any express or implied agreements, either oral or written, are superseded by the terms of this Agreement. If any one or\nmore provisions of this Agreement is held invalid, illegal or unenforceable in any respect by a court having competent jurisdiction,\nthe validity, legality and enforceability of this Agreement and the remaining provisions contained herein shall not in any way be\naffected or impaired thereby.\nCounterparts. This Agreement may be executed in counterparts, each of which shall be an original as against either Party whose\nsignature appears thereon, but all of which taken together shall constitute but one and the same instrument. An executed facsimile or\nelectronic scanned copy of this Agreement shall have the same force and effect as an original.\n4 0of 5\nKITE PHARMA, INC.\nBy: /s/ Veer Bhavnagri\nName: Veer Bhavnagri\nTitle: VP Corporate Counsel\nDate: February 10, 2017\n50f5\nConfidential\nGILEAD SCIENCES, INC.\nBy: /s/ Elizabeth P. Bhatt\nName: Elizabeth Bhatt\nTitle:  Vice President, Corporate Development\nDate: February 15, 2017	EX-99.(E)(2) 3 d450961dex99e2.htm EX-(E)(2)\nExhibit (e)(2)\nLOGO\nConfidential\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement ("Agreement") is effective as of February 10, 2017 ("Effective Date"), between Kite Pharma,\nInc., a Delaware corporation having a place of business at 2225 Colorado Avenue, Santa Monica, CA 90404 ("Kite") and Gilead Sciences, Inc.,\na Delaware corporation having a place of business at 333 Lakeside Drive, Foster City, CA 94404 ("Company"). Kite and Company may be\nreferred to herein individually as a "Party" and collectively as the "Parties."\nThe Parties desire to exchange Confidential Information (as defined below) for the Purpose (as defined below) and desire that their\nrespective Confidential Information be maintained in accordance with this Agreement. Therefore, the Parties agree as follows:\n1. Definitions.\n1.1 "Affiliate" means, with respect to a Party, any person, corporation or other entity that directly or indirectly controls, is controlled by,\nor is under common control with such Party. For purposes of this definition, "control" means possession of the power to direct the\nmanagement of such entity or person, whether through ownership of more than fifty percent (50%) of voting securities, by contract\nor\notherwise.\n1.2 "Confidential Information" means any and all information and/or data disclosed to the Receiving Party (as defined below) by the\nDisclosing Party (as defined below) under this Agreement, and may include, without limitation, know-how, data, designs, plans,\nspecifications, protocols, documents, trade secrets, ideas, concepts, products, processes, prototypes, formulas, works-in-progress\nsystems, technologies, manufacturing or marketing techniques, business or financial information; provided, however, that\nConfidential Information shall not include, and neither party shall disclose to the other party, any non-publicly disclosed chemical\nstructures of its compounds or sequence information, including amino acid and nucleic acid sequences, of its proteins, molecules or\nother proprietary substances, unless such disclosure is requested in advance in writing by the Receiving Party and thereafter later\nagreed to in writing by both parties, in which case such disclosed chemical structures and/or sequence information (as specifically\nindicated in any such subsequent writing) shall be deemed Confidential Information of the Disclosing Party under this Agreement.\n1.3 "Disclosing Party" means the Party or its Representatives divulging Confidential Information to the Receiving Party (as defined\nbelow).\n1.4 "Purpose" means to discuss, evaluate, negotiate and possibly enter into a business transaction involving Kite (and/or any of its\nAffiliates) and the Company (and/or any of its Affiliates)\n1.5\n"Receiving Party" means the Party or its Representatives receiving Confidential Information from the Disclosing Party.\n1.6 "Representatives" means, with respect to a Party, such Party's Affiliates and its (and its Affiliates') respective officers (including\ndirectors), trustees, employees, agents, professional advisors, non-employee staff and consultants, including legal and financial\nadvisors.\n2.\nDuties.\n2.1\nRestrictions on Use and Disclosure. Each Receiving Party agrees that it shall hold the Disclosing Party's Confidential Information in\nsecrecy and confidence and shall not disclose any of the Disclosing Party's Confidential Information to a third party, other than the\nReceiving Party's Representatives as permitted by Section 2.2 below, nor use it for any purpose other than the Purpose, without the\nexpress\n1 of 5\nConfidential\nwritten consent of the Disclosing Party. Each Receiving Party agrees to use at least the same degree of care to prevent any\nunauthorized access, disclosure or publication of the Confidential Information of the Disclosing Party as the Receiving Party uses to\nprotect its own valuable Confidential Information but in no event less than a commercially reasonable degree of care.\n2.2 Disclosures to Representatives. The Receiving Party shall only disclose such Confidential Information to those Representatives who\nhave a need to know such Confidential Information for the Purpose. All Representatives to whom the Confidential Information is\ndisclosed shall be subject to legally binding nondisclosure and nonuse restrictions that are at least as restrictive as the terms of this\nAgreement. Each Party, as a Receiving Party hereto, shall be responsible for the acts and omissions of its respective Representatives\nunder this Agreement as if such acts and omissions were performed (or not performed) by the Receiving Party. If an act or omission\nof a Representative of a Receiving Party would, if committed by the Receiving Party, constitute a breach of this Agreement, such act\nor omission shall constitute a breach of this Agreement by such Receiving Party.\n2.3 Form of Information. Confidential Information may be disclosed orally, visually, or in a tangible or electronic written form.\nConfidential Information may be disclosed directly or indirectly, by Disclosing Party or the Disclosing Party's Representatives to the\nReceiving Party or the Receiving Party's Representatives.\n2.4\nAttorney-Client Privilege. Nothing in this Agreement obligates either Party to reveal material subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege. However, to the extent that any Confidential Information may include\nmaterial subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or\nthreatened legal proceedings or governmental investigations, the Parties understand and agree that they have a commonality of\ninterest with respect to such matters and it is their desire, intention and mutual understanding that the sharing, whether inadvertent or\nintentional, of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential\nInformation provided by either Party that is entitled to protection under the attorney-client privilege, work product doctrine or other\napplicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense\ndoctrine.\n2.5 Other Information. Neither Company nor Kite shall, without the other party's consent, disclose to any other person (except for\nRepresentatives as permitted by Section 2.1 and 2.2 above) either the existence of this Agreement, the fact that investigations,\ndiscussions or negotiations are or may be taking place concerning a possible transaction or any facts related thereto ("Other\nInformation").\n3.\nExceptions and Other Matters.\n3.1 Exceptions. Notwithstanding anything to the contrary in this Agreement, Confidential Information does not include any information\nthat:\n(a)\nis known by the Receiving Party prior to the time of its receipt, such prior knowledge being documented by written evidence\npredating the date that such information was disclosed hereunder;\n(b)\nis at the time of disclosure or thereafter becomes published or otherwise part of the public domain without breach of this\nAgreement by the Receiving Party;\n(c)\nis disclosed to the Receiving Party by a third party who is not under an obligation to maintain the confidentiality of the\ninformation; or\n(d)\nis independently developed by the Receiving Party without any use of or reference to Confidential Information of the\nDisclosing Party, such independent development being documented by contemporaneous written evidence.\n2 of 5\nConfidential\n3.2 Partial Disclosures; Combinations. Specific aspects or details of Confidential Information shall not be deemed to be within the public\ndomain or in the possession of a Receiving Party merely because the Confidential Information is embraced by more general\ninformation in the public domain or in the possession of such party. Further, any combination of individual elements of Confidential\nInformation shall be considered Confidential Information and shall not be considered in the public domain or in the possession of a\nReceiving Party merely because one or more individual elements of such combination are in the public domain or in the possession of\nsuch Party; rather such combination shall only be considered in the public domain or in the possession of a Receiving Party if the\ncombination of each of the individual elements of the combination is in the public domain or in the possession of the Receiving Party.\n3.3 Disclosure Required by. Court Order or Government. Notwithstanding anything in this Agreement to the contrary, Receiving Party\nmay disclose Confidential Information of the Disclosing Party and Other Information to the extent disclosure is required by\napplicable law, rule, regulation, governmental or court order, pursuant to subpoena or other governmental authority, provided that the\nReceiving Party shall promptly inform the Disclosing Party in writing of such disclosure requirement so that the Disclosing Party\nmay seek a protective order or other appropriate remedy. The Receiving Party shall reasonably cooperate with Disclosing Party in\nconnection with the Disclosing Party's efforts to obtain any such order or other remedy. In the event that no such protective order or\nother remedy is obtained, then the Receiving Party may furnish only that portion of the Confidential Information which the Receiving\nParty is advised by counsel (including its internal legal counsel) that it is legally required to disclose.\n3.4 No Representation or Warranty By Discloser. The Disclosing Party makes no express or implied representation or warranty as to the\naccuracy, completeness or utility of its Confidential Information THE RECEIVING PARTY ACKNOWLEDGES THAT THE\nCONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY IS PROVIDED "AS IS," WITHOUT ANY WARRANTY,\nEXPRESS OR IMPLIED.\n3.5\nNo License Implied. This Agreement shall not be construed to grant to Receiving Party any license or other rights with respect to the\nConfidential Information.\n3.6\nOwnership; Return/Destruction. All Confidential Information and all materials containing Confidential Information that are delivered\nto the Receiving Party by the Disclosing Party or the Disclosing Party's Representatives under this Agreement are and remain the\nsole and exclusive property of the Disclosing Party. Upon written request of the Disclosing Party, the Receiving Party shall, at its own\ncost and expense, promptly destroy or return to the Disclosing Party all such materials (if returned, in the medium provided by\nDisclosing Party) and destroy all copies of the foregoing or any portion thereof; provided, however, that Receiving Party may retain\none copy of the foregoing materials in a secure location for record-keeping purposes. Neither the Receiving Party nor any of its\nRepresentatives\nshall\nbe\nrequired\nto\ndelete\nor\ndestroy\nany\nelectronic\nback-up\ntapes\nor\nother\nelectronic\nback-up\nfiles\nthat\nhave\nbeen\ncreated solely by their automatic or routine archiving and back-up procedures, to the extent created and retained in a manner\nconsistent with its or their standard archiving and back-up procedures.\n4.\nTerm and Termination.\n4.1\nTerm. The term of this Agreement during which Confidential Information may be disclosed by one Party to the other Party shall\nbegin on the Effective Date and end five (5) years after the Effective Date, unless extended by mutual agreement.\n4.2 Survival. The Receiving Party's obligations with respect to Confidential Information under Section 2 shall survive termination or\nexpiration of this Agreement, and shall expire seven (7) years from the Effective Date.\n3 of 5\nConfidential\n5. Miscellaneous.\n5.1 No Future Obligations. Nothing in this Agreement shall be deemed to create any obligation on the part of either Party to continue\ndiscussions or to enter into a further agreement. Either party may terminate discussions or negotiations at any time\n5.2\nAssignment. Neither this Agreement nor the obligations hereunder may be assigned or otherwise transferred by a Party without\nwritten consent of the other Party, except in connection with the sale of all or substantially all of a Party's assets, equity or business or\na merger, reorganization or consolidation involving at least fifty percent (50%) or more of the voting equity securities of the Party.\nThis Agreement shall be binding upon the parties, their successors and their permitted assigns.\n5.3\nApplicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without\nreference to its rules of conflicts of laws.\n5.4\nTransfer Restrictions Under Export Control Laws. Each Party agrees that it and its Representatives shall comply with any applicable\nexport control laws, rules and regulations relating to the export of technical information, materials or products in connection with any\ndisclosure of Confidential Information under this Agreement.\n5.5\nNotices.\nEach\nnotice\nrequired\nor\npermitted\nhereunder\nshall\nbe\nin\nwriting\nand\nsufficient\nif\ndelivered\npersonally,\nsent\nby\na\nnationally-\nrecognized overnight courier or sent by registered or certified mail, postage prepaid, return receipt requested, to the Parties at the\naddresses indicated in the introductory paragraph of this Agreement, to the attention of the signatories below, with a copy, in the case\nof Company, to the General Counsel. Either Party may change its address by giving the other Party written notice, delivered in\naccordance with this Section 5.5.\n5.6 Waivers and Amendments; Preservation of Remedies. This Agreement may be amended, or the terms and conditions may be waived,\nonly by a written agreement signed by both Parties. No delay on the part of any Party in exercising any right hereunder shall operate\nas\na waiver, nor shall any partial exercise of any right hereunder preclude any other exercise thereof. The rights and remedies herein\nare cumulative and are not exclusive of any rights or remedies which any Party may otherwise have at law or in equity.\n5.7 Injunctive Relief. The Parties acknowledge that a breach of this Agreement may result in irreparable harm and damages to a Party in\nan amount difficult to ascertain and which cannot be adequately compensated by a monetary award. Accordingly, in addition to any\nof the relief to which any Party may be entitled under this Agreement, at law or in equity, such Party shall be entitled to seek\ntemporary and permanent injunctive relief from any breach or threatened breach without the requirement of the Party bringing such\naction to post any bond or other security with the court in connection therewith.\n5.8\nEntire Agreement; Severability.. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter\nhereof and any express or implied agreements, either oral or written, are superseded by the terms of this Agreement. If any one or\nmore provisions of this Agreement is held invalid, illegal or unenforceable in any respect by a court having competent jurisdiction,\nthe validity, legality and enforceability of this Agreement and the remaining provisions contained herein shall not in any way be\naffected or impaired thereby.\n5.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be an original as against either Party whose\nsignature appears thereon, but all of which taken together shall constitute but one and the same instrument. An executed facsimile or\nelectronic scanned copy of this Agreement shall have the same force and effect as an original.\n4 of 5\nConfidential\nKITE PHARMA, INC.\nGILEAD SCIENCES, INC.\nBy:\n/s/ Veer Bhavnagri\nBy:\n/s/ Elizabeth P. Bhatt\nName: Veer Bhavnagri\nName: Elizabeth Bhatt\nTitle: VP Corporate Counsel\nTitle: Vice President, Corporate Development\nDate:\nFebruary 10, 2017\nDate: February 15, 2017\n5 of 5	EX-99.(E)(2) 3 d450961dex99e2.htm EX-(E)(2)\nExhibit (e)(2)\nLOGO\nConfidential\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Mutual Confidentiality Agreement (“Agreement”) is effective as of February 10, 2017 (“Effective Date”), between Kite Pharma,\nInc., a Delaware corporation having a place of business at 2225 Colorado Avenue, Santa Monica, CA 90404 (“Kite”) and Gilead Sciences, Inc.,\na Delaware corporation having a place of business at 333 Lakeside Drive, Foster City, CA 94404 (“Company”). Kite and Company may be\nreferred to herein individually as a “Party” and collectively as the “Parties.”\nThe Parties desire to exchange Confidential Information (as defined below) for the Purpose (as defined below) and desire that their\nrespective Confidential Information be maintained in accordance with this Agreement. Therefore, the Parties agree as follows:\n1. Definitions.\n1.1\n“Affiliate” means, with respect to a Party, any person, corporation or other entity that directly or indirectly controls, is controlled by,\nor is under common control with such Party. For purposes of this definition, “control” means possession of the power to direct the\nmanagement of such entity or person, whether through ownership of more than fifty percent (50%) of voting securities, by contract or\notherwise.\n1.2\n“Confidential Information” means any and all information and/or data disclosed to the Receiving Party (as defined below) by the\nDisclosing Party (as defined below) under this Agreement, and may include, without limitation, know-how, data, designs, plans,\nspecifications, protocols, documents, trade secrets, ideas, concepts, products, processes, prototypes, formulas, works-in-progress,\nsystems, technologies, manufacturing or marketing techniques, business or financial information; provided, however, that\nConfidential Information shall not include, and neither party shall disclose to the other party, any non-publicly disclosed chemical\nstructures of its compounds or sequence information, including amino acid and nucleic acid sequences, of its proteins, molecules or\nother proprietary substances, unless such disclosure is requested in advance in writing by the Receiving Party and thereafter later\nagreed to in writing by both parties, in which case such disclosed chemical structures and/or sequence information (as specifically\nindicated in any such subsequent writing) shall be deemed Confidential Information of the Disclosing Party under this Agreement.\n1.3\n“Disclosing Party” means the Party or its Representatives divulging Confidential Information to the Receiving Party (as defined\nbelow).\n1.4\n“Purpose” means to discuss, evaluate, negotiate and possibly enter into a business transaction involving Kite (and/or any of its\nAffiliates) and the Company (and/or any of its Affiliates).\n1.5\n“Receiving Party” means the Party or its Representatives receiving Confidential Information from the Disclosing Party.\n1.6\n“Representatives” means, with respect to a Party, such Party’s Affiliates and its (and its Affiliates’) respective officers (including\ndirectors), trustees, employees, agents, professional advisors, non-employee staff and consultants, including legal and financial\nadvisors.\n2. Duties.\n2.1 Restrictions on Use and Disclosure. Each Receiving Party agrees that it shall hold the Disclosing Party’s Confidential Information in\nsecrecy and confidence and shall not disclose any of the Disclosing Party’s Confidential Information to a third party, other than the\nReceiving Party’s Representatives as permitted by Section 2.2 below, nor use it for any purpose other than the Purpose, without the\nexpress\n1of5\nConfidential\nwritten consent of the Disclosing Party. Each Receiving Party agrees to use at least the same degree of care to prevent any\nunauthorized access, disclosure or publication of the Confidential Information of the Disclosing Party as the Receiving Party uses to\nprotect its own valuable Confidential Information but in no event less than a commercially reasonable degree of care.\n2.2 Disclosures to Representatives. The Receiving Party shall only disclose such Confidential Information to those Representatives who\nhave a need to know such Confidential Information for the Purpose. All Representatives to whom the Confidential Information is\ndisclosed shall be subject to legally binding nondisclosure and nonuse restrictions that are at least as restrictive as the terms of this\nAgreement. Each Party, as a Receiving Party hereto, shall be responsible for the acts and omissions of its respective Representatives\nunder this Agreement as if such acts and omissions were performed (or not performed) by the Receiving Party. If an act or omission\nof a Representative of a Receiving Party would, if committed by the Receiving Party, constitute a breach of this Agreement, such act\nor omission shall constitute a breach of this Agreement by such Receiving Party.\n2.3 Form of Information. Confidential Information may be disclosed orally, visually, or in a tangible or electronic written form.\nConfidential Information may be disclosed directly or indirectly, by Disclosing Party or the Disclosing Party’s Representatives to the\nReceiving Party or the Receiving Party’s Representatives.\n2.4 Attorney-Client Privilege. Nothing in this Agreement obligates either Party to reveal material subject to the attorney-client privilege,\nwork product doctrine or any other applicable privilege. However, to the extent that any Confidential Information may include\nmaterial subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or\nthreatened legal proceedings or governmental investigations, the Parties understand and agree that they have a commonality of\ninterest with respect to such matters and it is their desire, intention and mutual understanding that the sharing, whether inadvertent or\nintentional, of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its\ncontinued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential\nInformation provided by either Party that is entitled to protection under the attorney-client privilege, work product doctrine or other\napplicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense\ndoctrine.\n2.5 Other Information. Neither Company nor Kite shall, without the other party’s consent, disclose to any other person (except for\nRepresentatives as permitted by Section 2.1 and 2.2 above) either the existence of this Agreement, the fact that investigations,\ndiscussions or negotiations are or may be taking place concerning a possible transaction or any facts related thereto (“Other\nInformation”).\n3. Exceptions and Other Matters.\n3.1 Exceptions. Notwithstanding anything to the contrary in this Agreement, Confidential Information does not include any information\nthat:\n(a) is known by the Receiving Party prior to the time of its receipt, such prior knowledge being documented by written evidence\npredating the date that such information was disclosed hereunder;\n(b) is at the time of disclosure or thereafter becomes published or otherwise part of the public domain without breach of this\nAgreement by the Receiving Party;\n(c) is disclosed to the Receiving Party by a third party who is not under an obligation to maintain the confidentiality of the\ninformation; or\n(d) is independently developed by the Receiving Party without any use of or reference to Confidential Information of the\nDisclosing Party, such independent development being documented by contemporaneous written evidence.\n2of5\nConfidential\n3.2 Partial Disclosures; Combinations. Specific aspects or details of Confidential Information shall not be deemed to be within the public\ndomain or in the possession of a Receiving Party merely because the Confidential Information is embraced by more general\ninformation in the public domain or in the possession of such party. Further, any combination of individual elements of Confidential\nInformation shall be considered Confidential Information and shall not be considered in the public domain or in the possession of a\nReceiving Party merely because one or more individual elements of such combination are in the public domain or in the possession of\nsuch Party; rather such combination shall only be considered in the public domain or in the possession of a Receiving Party if the\ncombination of each of the individual elements of the combination is in the public domain or in the possession of the Receiving Party.\n3.3 Disclosure Required by Court Order or Government. Notwithstanding anything in this Agreement to the contrary, Receiving Party\nmay disclose Confidential Information of the Disclosing Party and Other Information to the extent disclosure is required by\napplicable law, rule, regulation, governmental or court order, pursuant to subpoena or other governmental authority, provided that the\nReceiving Party shall promptly inform the Disclosing Party in writing of such disclosure requirement so that the Disclosing Party\nmay seek a protective order or other appropriate remedy. The Receiving Party shall reasonably cooperate with Disclosing Party in\nconnection with the Disclosing Party’s efforts to obtain any such order or other remedy. In the event that no such protective order or\nother remedy is obtained, then the Receiving Party may furnish only that portion of the Confidential Information which the Receiving\nParty is advised by counsel (including its internal legal counsel) that it is legally required to disclose.\n3.4 No Representation or Warranty By Discloser. The Disclosing Party makes no express or implied representation or warranty as to the\naccuracy, completeness or utility of its Confidential Information. THE RECEIVING PARTY ACKNOWLEDGES THAT THE\nCONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY IS PROVIDED “AS IS,” WITHOUT ANY WARRANTY,\nEXPRESS OR IMPLIED.\n3.5 No License Implied. This Agreement shall not be construed to grant to Receiving Party any license or other rights with respect to the\nConfidential Information.\n3.6 Ownership; Return/Destruction. All Confidential Information and all materials containing Confidential Information that are delivered\nto the Receiving Party by the Disclosing Party or the Disclosing Party’s Representatives under this Agreement are and remain the\nsole and exclusive property of the Disclosing Party. Upon written request of the Disclosing Party, the Receiving Party shall, at its own\ncost and expense, promptly destroy or return to the Disclosing Party all such materials (if returned, in the medium provided by\nDisclosing Party) and destroy all copies of the foregoing or any portion thereof; provided, however, that Receiving Party may retain\none copy of the foregoing materials in a secure location for record-keeping purposes. Neither the Receiving Party nor any of its\nRepresentatives shall be required to delete or destroy any electronic back-up tapes or other electronic back-up files that have been\ncreated solely by their automatic or routine archiving and back-up procedures, to the extent created and retained in a manner\nconsistent with its or their standard archiving and back-up procedures.\n4. Term and Termination.\n4.1 Term. The term of this Agreement during which Confidential Information may be disclosed by one Party to the other Party shall\nbegin on the Effective Date and end five (5) years after the Effective Date, unless extended by mutual agreement.\n4.2 Survival. The Receiving Party’s obligations with respect to Confidential Information under Section 2 shall survive termination or\nexpiration of this Agreement, and shall expire seven (7) years from the Effective Date.\n3of5\nConfidential\n5. Miscellaneous.\n5.1 No Future Obligations. Nothing in this Agreement shall be deemed to create any obligation on the part of either Party to continue\ndiscussions or to enter into a further agreement. Either party may terminate discussions or negotiations at any time\n5.2 Assignment. Neither this Agreement nor the obligations hereunder may be assigned or otherwise transferred by a Party without\nwritten consent of the other Party, except in connection with the sale of all or substantially all of a Party’s assets, equity or business or\na merger, reorganization or consolidation involving at least fifty percent (50%) or more of the voting equity securities of the Party.\nThis Agreement shall be binding upon the parties, their successors and their permitted assigns.\n5.3 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without\nreference to its rules of conflicts of laws.\n5.4 Transfer Restrictions Under Export Control Laws. Each Party agrees that it and its Representatives shall comply with any applicable\nexport control laws, rules and regulations relating to the export of technical information, materials or products in connection with any\ndisclosure of Confidential Information under this Agreement.\n5.5 Notices. Each notice required or permitted hereunder shall be in writing and sufficient if delivered personally, sent by a nationally-\nrecognized overnight courier or sent by registered or certified mail, postage prepaid, return receipt requested, to the Parties at the\naddresses indicated in the introductory paragraph of this Agreement, to the attention of the signatories below, with a copy, in the case\nof Company, to the General Counsel. Either Party may change its address by giving the other Party written notice, delivered in\naccordance with this Section 5.5 .\n5.6 Waivers and Amendments; Preservation of Remedies. This Agreement may be amended, or the terms and conditions may be waived,\nonly by a written agreement signed by both Parties. No delay on the part of any Party in exercising any right hereunder shall operate\nas a waiver, nor shall any partial exercise of any right hereunder preclude any other exercise thereof. The rights and remedies herein\nare cumulative and are not exclusive of any rights or remedies which any Party may otherwise have at law or in equity.\n5.7 Injunctive Relief. The Parties acknowledge that a breach of this Agreement may result in irreparable harm and damages to a Party in\nan amount difficult to ascertain and which cannot be adequately compensated by a monetary award. Accordingly, in addition to any\nof the relief to which any Party may be entitled under this Agreement, at law or in equity, such Party shall be entitled to seek\ntemporary and permanent injunctive relief from any breach or threatened breach without the requirement of the Party bringing such\naction to post any bond or other security with the court in connection therewith.\n5.8 Entire Agreement; Severability. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter\nhereof and any express or implied agreements, either oral or written, are superseded by the terms of this Agreement. If any one or\nmore provisions of this Agreement is held invalid, illegal or unenforceable in any respect by a court having competent jurisdiction,\nthe validity, legality and enforceability of this Agreement and the remaining provisions contained herein shall not in any way be\naffected or impaired thereby.\n5.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be an original as against either Party whose\nsignature appears thereon, but all of which taken together shall constitute but one and the same instrument. An executed facsimile or\nelectronic scanned copy of this Agreement shall have the same force and effect as an original.\n4of5\nConfidential\nKITE PHARMA, INC.\nGILEAD SCIENCES, INC.\nBy: /s/ Veer Bhavnagri\nBy: /s/ Elizabeth P. Bhatt\nName: Veer Bhavnagri\nName: Elizabeth Bhatt\nTitle: VP Corporate Counsel\nTitle: Vice President, Corporate Development\nDate: February 10, 2017\nDate: February 15, 2017\n5of5
+03ae3b511276b560dc8806eb61b9d063.pdf	effective_date jurisdiction party term	EX-10.3 6 d281487dex103.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.3\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Solicitation Agreement (the “Agreement”) dated this 6th day of January, 2012 is entered into by and between\nMaher Albitar, M.D., an individual who resides at the address set forth on the signature page hereof (“Contractor”) and NeoGenomics Laboratories,\nInc., a Florida corporation (“NeoGenomics” and collectively with NeoGenomics, Inc, a Nevada corporation, the NeoGenomics’ parent corporation,\nthe “Company”). Hereinafter, each of the Contractor or the Company maybe referred to as a “Party” and together be referred to as the “Parties”.\nRECITALS:\nWHEREAS, Contractor is a member of the Board of Directors of Health Discovery Corporation, a Georgia corporation, which specializes,\namong other things, in the field of discovering new proprietary methods for genetic and molecular laboratory testing; and\nWHEREAS, Health Discovery Corporation licensed its technology to NeoGenomics to commercialize certain cancer-related genetic and\nmolecular testing products and services pursuant to a licensing agreement; and\nWHEREAS, pursuant to such licensing agreement, Contractor agreed to provide full-time services to NeoGenomics in order to assist with\nsuch commercialization activities; and\nWHEREAS, NeoGenomics has appointed Contractor as its Chief Medical Officer; and\nWHEREAS, NeoGenomics and Albitar Oncology Consulting, LLC, a Delaware limited liability corporation solely owned by Contractor\n(“Medical Professional Corporation” or “MPC”), have entered into that certain Medical Services Agreement of even date herewith, which specifies\nhow NeoGenomics will work with MPC and Contractor, on a full-time basis to pursue business opportunities in the cancer-related genetic and\nmolecular testing market (the “Medical Services Agreement”) and that certain Confidentiality, Title To Work Product and Non-Solicit Agreement\nof even date herewith (the “Work Product Agreement”); and\nWHEREAS, Contractor will provide professional services to NeoGenomics through MPC and derive economic benefit from NeoGenomics\nthrough MPC; and\nWHEREAS, Contractor has also been awarded non-qualified stock options and warrants of the Company as part of the overall business\nrelationship with the Company; and\nWHEREAS, the Company will be providing MPC and Contractor with access to certain confidential and competitive information about\nNeoGenomics’ new product development plans, business and clients as part of the business arrangement with MPC; and\nWHEREAS, the Company desires to protect and preserve its Confidential Information and its legitimate business interests by having the\nContractor enter into this Agreement as part of the Medical Services Agreement; and\nWHEREAS, Contractor acknowledges that Company will disclose certain Company confidential and proprietary information, trade secrets\nand customer and supplier relationships and desires to establish and maintain a business relationship with the Company and as part of such business\nrelationship desires to enter into this Agreement with the Company.\nCONTRACTOR’S INITIALS\n/s/ M.A.\n1\nNow, therefore, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and sufficiency\nof which is hereby acknowledged by Contractor, the Parties agree as follows:\n1. Term. The parties agree that the term of this agreement is effective upon execution and shall survive and continue to be in force and effect for\ntwo years following the earlier of a) the termination of any employment or independent contractor relationship between the Contractor and the MPC,\nwhether termination is by the MPC with or without cause, wrongful discharge, or for any other reason whatsoever, or by the Contractor, b) the date\non which the Contractor ceases to be an equity owner of the MPC, or c) the termination of the Medical Services Agreement between the MPC and\nthe Company or any entity that is wholly or partially owned by the Company (all of such entities being hereinafter referred to as “Affiliated\nEntities”). The aforementioned period during which this Agreement will remain in effect shall hereinafter be referred to as the “Term”.\n2. Definitions.\na. The term “Confidential Information” as used herein shall include all business practices, methods, techniques, or processes that: (i) derives\nindependent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other\npersons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to\nmaintain its secrecy. Confidential Information also includes, but is not limited to, files, letters, memoranda, reports, records, computer disks or other\ncomputer storage medium, data, models or any photographic or other tangible materials containing such information, Customer lists and names and\nother information, Customer contracts, other corporate contracts, computer programs, proprietary technical information and or strategies, sales,\npromotional or marketing plans or strategies, programs, techniques, practices, any expansion plans (including existing and entry into new geographic\nand/or product markets), pricing information, product or service offering specifications or plans thereof, business plans, financial information and\nother financial plans, data pertaining to the Company’s operating performance, employee lists, salary information, Personal Information, Protected\nHealth Information, all information the Company receives from customers or other third parties that is not generally known to the public or is subject\nto a confidentiality agreement, training manuals, and other materials and business information of a similar nature, including information about the\nCompany itself or any Affiliated Entity, which Contractor acknowledges and agrees has been compiled by the Company’s expenditure of a great\namount of time, money and effort, and that contains detailed information that could not be created independently from public sources. Further, all\ndata, spreadsheets, reports, records, know-how, verbal communication, proprietary and technical information and/or other confidential materials of\nsimilar kind transmitted by the Company or any Affiliated Entity to Contractor or developed by the Contractor on behalf of the Company or any\nAffiliate Entity as Work Product (as defined in Paragraph 7) are expressly included within the definition of “Confidential Information.” The Parties\nfurther agree that the fact the Company or any Affiliated Entity may be seeking to complete a business transaction is “Confidential Information”\nwithin the meaning of this Agreement, as well as all notes, analysis, work product or other material derived from Confidential Information.\nNotwithstanding anything contained herein to the contrary, Confidential Information does not include any information which is generally known to\nthird parties in the industry.\nb. The term “Personal Information” (“PI”) is Confidential Information and includes, but is not limited to, an individual’s first name and last\nname or first initial and last name in combination with any of the following: an individual’s social security number, tax I.D . number, social insurance\nnumber, driver’s license number, state issued identification card number, financial information, healthcare information, or credit or debit card\nnumber.\nc. The term “Protected Health Information” (“PHI”) is Confidential Information and includes information that is created, received, and/or\nmaintained by the Company related to an individual’s health care (or payment related to health care) that directly or indirectly identifies the\nindividual.\nCONTRACTOR’S INITIALS\n/s/ M.A.\n2\nd. The term “Customer” shall mean any person or entity, the identity and contact information of which is kept confidential by the Company,\nwhich has purchased or ordered goods, products or services from the Company, entered into any contract for products or services with the Company,\nand/or entered into any contract for the distribution of any Products or services with the Company within the one (1) year immediately preceding a)\nthe termination of any employment or independent contractor relationship between the Contractor and the MPC, b) the date on which the Contractor\nceases to be an equity owner of the MPC, or c) the termination of the Medical Services Agreement between the MPC and the Company or any\nAffiliate Entity of the Company. Contractor acknowledges and agrees that the Company’s Customers, Customer relationships and Customer contact\ninformation have been compiled by the Company and will continue to be compiled by the Company at the expenditure of a great amount of time,\nmoney, expense and effort, and that the Company goes to considerable lengths and efforts to protect all such Customer information, and that such\ninformation is not readily available from public sources or known to third parties in the industry.\ne. The term “Prospective Customer” shall mean any person or entity, the identity and contact information of which is kept confidential by the\nCompany, which has evidenced an intention to engage in business to purchase or order goods, Products or services from the Company, has\nevidenced an intent to enter into any contract for Products or services with the Company, and/or has evidenced an intent to enter into any contract for\nthe distribution of any Products or services with the Company, (which such intention(s) shall be stated in writing) within the one (1) year\nimmediately preceding a) the termination of any employment or independent contractor relationship between the Contractor and the MPC, b) the\ndate on which the Contractor ceases to be an equity owner of the MPC, or c) the termination of the Medical Services Agreement between the MPC\nand the Company or any Affiliate Entity of the Company.\nf. The term “Restricted Area” shall include any geographical location anywhere in the United States. If the Restricted Area specified in this\nAgreement should be judged unreasonable in any proceeding, then the Restricted Area shall be reduced so that the restrictions may be enforced as is\njudged to be reasonable.\ng. The phrase “directly or indirectly” shall include the Contractor either on his/her own account, or as a partner, owner, promoter, joint\nventurer, employee, agent, consultant, advisor, manager, executive, independent contractor, officer, director, or a stockholder of 5% or more of the\nvoting shares of an entity in the Business of Company.\nh. The term “Business” shall mean the business of performing cancer-related research and development activities associated with genetic and\nmolecular laboratory testing and providing cancer-related genetic and molecular laboratory testing products and services for profit, including, but not\nlimited to, cytogenetics, flow cytometry, fluorescence in-situ hybridization (“FISH”), morphological studies, polymerase chain reaction (“PCR”)\ntesting, and other molecular testing, to hematologists, oncologists, urologists, pathologists, hospitals and other medical reference laboratories.\ni. The term “Full-time” should not exclude the contractor from continuing his work as a Director on the Board and a Consultant to Health\nDiscovery Corp (HDC) as long as this work is not cancer or hematology-related.\n3. Duty of Confidentiality.\na. All Confidential Information is considered highly sensitive and strictly confidential. The Contractor agrees that at all times during the term\nof this Agreement and after the termination of Medical Services Agreement for as long as such information remains non-public information, the\nContractor shall (i) hold in confidence and refrain from disclosing to any other party all Confidential Information, whether written or oral, tangible or\nintangible, concerning the Company or any Affiliated Entities and their business and operations unless such disclosure is accompanied by a non-\ndisclosure agreement executed by the Company with the party to whom such Confidential Information is provided, (ii) use the Confidential\nInformation solely in connection with his or her services to the Company or any Affiliated Entity and for no other purpose, (iii) take\nCONTRACTOR’S INITIALS\n/s/ M.A.\n3\nall precautions necessary to ensure that the Confidential Information shall not be, or be permitted to be, shown, copied or disclosed to third parties,\nwithout the prior written consent of the Company or any Affiliated Entity, (iv) observe all security policies implemented by the Company or any\nAffiliated Entity from time to time with respect to the Confidential Information, and (v) not use or disclose, directly or indirectly, as an individual or\nas a partner, joint venturer, employee, agent, salesman, contractor, officer, director or otherwise, for the benefit of himself or herself or any other\nperson, partnership, firm, corporation, association or other legal entity, any Confidential Information, unless expressly permitted by this Agreement.\nContractor agrees that protection of the Company’s and any Affiliated Entity’s Confidential Information constitutes a legitimate business interest\njustifying the restrictive covenants contained herein. Contractor further agrees that the restrictive covenants contained herein are reasonably\nnecessary to protect the Company’s and any Affiliated Entity’s legitimate business interest in preserving its Confidential Information. In addition,\nContractor will not view or access any PI or PHI unless required and authorized by the Company to do so. Contractor acknowledges that he/she shall\nbear all costs, losses and damages resulting from any intentional breach of this paragraph, to the fullest extent permitted by applicable law.\nb. In the event that the Contractor is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding or\notherwise, such disclosure shall be limited to the narrowest disclosure so required and, except to the extent prohibited by law, Contractor shall give\nthe Company or any Affiliated Entities at least two (2) weeks’ notice, if practicable, of the basis for any such compelled disclosure of Confidential\nInformation and shall reasonably cooperate with the Company or any Affiliated Entities in limiting disclosure and obtaining suitable confidentiality\nprotections.\nc. Contractor acknowledge(s) that this “Confidential Information” is of value to the Company and/or any Affiliated Entities by providing them\nwith a competitive advantage over their competitors, is not generally known to competitors of the Company, and is not intended by the Company or\nany Affiliated Entities for general dissemination. Contractor acknowledges that this “Confidential Information” derives independent economic value,\nactual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain\neconomic value from its disclosure or use, and is the subject of reasonable efforts to maintain its secrecy. Therefore, the Parties agree that all\n“Confidential Information” under this Agreement constitutes “Trade Secrets” under both Section 688.002 and Chapter 812 of the Florida Statutes\nand California’s Uniform Trade Secrets Act, Cal. Civ. Code section 3426 et seq.\n4. Limited Right of Disclosure. Except as otherwise permitted by this Agreement, Contractor shall limit disclosure of pertinent Confidential\nInformation to Contractor’s attorney, if any (“Representative(s)”), for the sole purpose of evaluating Contractor ’s relationship with the Company.\nContractor agrees to show this Agreement to any Representatives and Contractor agrees that Paragraph 3 of this Agreement shall bind all such\nRepresentative(s).\n5. Return of Company Property and Confidential Materials. All tangible property, including cell phones, laptop computers and other Company\npurchased property, as well as all Confidential Information, Customer and Prospective Customer information and property, provided to Contractor is\nthe exclusive property of the Company and/or its Affiliated Entities and must be returned to the Company and/or its Affiliated Entities in accordance\nwith the instructions of the Company and/or such Affiliated Entities either upon termination of the Medical Services Agreement or at such other time\nas is requested by the Company. Contractor agree(s) that upon the earlier of a) the termination of any employment or independent contractor\nrelationship between the Contractor and the MPC, b) the date on which the Contractor ceases to be an equity owner of the MPC, or c) the\ntermination of the Medical Services Agreement between the MPC and the Company or any Affiliate Entity of the Company, Contractor shall return\nall copies, in whatever form or media, including hard copies and electronic copies, of Confidential Information to the Company and/or the Affiliated\nEntity, and Contractor shall delete any copy of the Confidential Information on any computer file or database maintained by Contractor and, if\nrequested in writing, shall certify in writing that he/she has done so. In addition to returning all information to the Company and/or any Affiliated\nEntities as described above, Contractor will destroy any analysis, notes, work product or\nCONTRACTOR’S INITIALS\n/s/ M.A.\n4\nother materials relating to or derived from the Confidential Information. Any intentional or unauthorized retention of Confidential Information may\nconstitute “misappropriation” as such term is defined in both Chapter 772 of the Florida Statutes and Cal. Civ. Code section 3426.1(b).\n6. Restrictive Covenant. The Company and its Affiliated Entities are engaged in the business of performing cancer-related research and\ndevelopment activities associated with genetic and molecular laboratory testing and providing cancer-related genetic and molecular laboratory\ntesting products and services to oncologists, urologists, pathologists, physicians, hospitals, and other medical laboratories. The covenants contained\nin this Paragraph 8 (the “Restrictive Covenants”) are given and made by Contractor to induce the Company to enter into the Medical Services\nAgreement and to protect the Confidential Information of the Company, and Contractor acknowledges sufficiency of consideration for these\nRestrictive Covenants. Contractor expressly covenants and agrees that, during the time the Management Services Agreement is in effect between the\nMPC and the Company and for a period of two years following the earlier of a) the termination of any employment or independent contractor\nrelationship between the Contractor and the MPC, b) the date on which the Contractor ceases to be an equity owner of the MPC, or c) the\ntermination of the Medical Services Agreement between the MPC and the Company or any Affiliate Entity of the Company (such period of time is\nhereinafter referred to as the “Restrictive Period”), he will abide by the following restrictive covenants, unless an exception is specifically provided,\nin writing signed by Company.\na.\nThis Section Intentionally Left Blank.\nb. Non-Competition. Contractor agrees and acknowledges that, during the Restrictive Period, he will not, directly or indirectly, for\nhimself, or on behalf of others, as an individual on Contractor’s own account, or as a partner, joint venturer, employee, agent, salesman,\ncontractor, officer, director or otherwise, for him/herself or any other person, partnership, firm, corporation, association or other legal\nentity, enter into, engage in, accept employment from, or provide any competitive services to, or for, any business that is in the\nBusiness of the Company, or engage in any activity that is competitive with the Company, in the Restricted Area. The parties agree\nthat this non-competition provision is intended to cover situations where a future business opportunity in which the Contractor is\nengaged or a future employer of the Contractor is selling the same or similar products and services in a Business which may compete\nwith the Company’s products and services to Customers and Prospective Customers of the Company in the Restricted Area. This\nprovision shall not cover future business opportunities or employers of the Contractor that sell different types of products or services in\nthe Restricted Area so long as such future business opportunities or employers are not in the Business of the Company.\nNotwithstanding the preceding paragraphs, the spirit and intent of this non-competition clause is not to deny the Contractor the ability to\nsupport his or her family, but rather to prevent Contractor from using the knowledge and experiences obtained from the Company in a\nsimilar competitive environment. Along those lines, should the Contractor leave the employment of the MPC or the Medical Services\nAgreement between the MPC and the Company be terminated for any reason, he would be prohibited from joining a for-profit cancer\ngenetics testing laboratory and/or company in the Business of the Company in the Restricted Area. The Parties agree that all non-profit\nmedical testing laboratories, hospitals and academic institutions as well as for-profit testing laboratories not engaged in cancer genetics\nresearch and development or testing services are excluded from the restrictions in paragraph 8(b). In other words, Contractor would be\nallowed under this non-compete clause to work in any non-profit cancer genetics research and development or testing laboratory (e.g., in\nacademia) as well as in a private, for-profit testing laboratories not engaged in cancer genetics research and development or testing.\nThus, the spirit and intent of this non-competition clause is intended to prevent Contractor from acting in any of the capacities outlined in\nthis paragraph for any “for-profit” cancer genetics research and development or testing laboratories that do any one or more of the types\nof testing services defined in the definition of Business in the Restricted Area.\nCONTRACTOR’S INITIALS\n/s/ M.A.\n5\nc.\nAcknowledgements of Contractor.\n(i) The Contractor understands and acknowledges that any material violation of this Agreement shall constitute a material breach of\nthis Agreement, and it will cause irreparable harm and loss to the Company or any Affiliated Entity for which monetary damages\nwill be an insufficient remedy. Therefore, the Parties agree that in addition to any other remedies available, the Company and its\nAffiliated Entities will be entitled to the relief identified in Paragraph No. 7 below.\n(ii) The Restrictive Covenants shall be construed as agreements independent of any other provision in this Agreement\n(iii) Contractor agrees that the Restrictive Covenants are reasonably necessary to protect the legitimate business interests of the\nCompany or any Affiliated Entity and to protect its Confidential Information.\n(iv) Contractor agrees that this Agreement may be enforced by the Company’s assignee or successor or any of the Affiliated Entities\nand Contractor acknowledges and agrees that assignees, successors and Affiliated Entities are intended beneficiaries of this\nAgreement.\n(v) Contractor agrees that if any portion of the Restrictive Covenants are held by an arbitration panel or court of competent\njurisdiction to be unreasonable, arbitrary or against public policy for any reason, they shall be modified accordingly as to time,\ngeographic area and line of business so as to be enforceable to the fullest extent possible as to time, area and line of business.\n(vi) Contractor agrees that any material violation of the Restrictive Covenants, in any capacity identified herein, are a material breach\nof this Agreement.\n(vii) Contractor agrees that any failure of the Company or any Affiliated Entity to enforce the Restrictive Covenants against any other\nemployee or contractor, for any reason, shall not constitute a defense to enforcement of the Restrictive Covenants against the\nContractor.\n7. Specific Performance; Injunction. The Parties agree and acknowledge that the restrictions contained in Paragraphs 1-6 are reasonable in scope\nand duration and are necessary to protect the Company or any of its Affiliated Entities. If any provision of Paragraphs 1-6 as applied to any party or\nto any circumstance is adjudged by a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the validity or\nenforceability of any other provision of this Agreement. If any such provision, or any part thereof, is held to be unenforceable because of the\nduration of such provision or the area covered thereby, the Parties agree that the court making such determination shall have the power to reduce the\nduration and/or area of such provision, and/or to delete specific words or phrases, and in its reduced form, such provision shall then be enforceable\nand shall be enforced.\nAny material unauthorized use or disclosure of information in violation of Paragraphs 2-5 above or violation of the Restrictive Covenant in\nParagraph 6 shall constitute a material breach of this Agreement, may constitute misappropriation under California law, and may cause irreparable\nharm and loss to the Company or any of its Affiliated Entities for which monetary damages will be an insufficient remedy. Therefore, the Parties\nagree that in addition to any other remedy available, the Company or any of its Affiliated Entities may be entitled to all of available civil remedies,\nincluding:\na.\nTemporary and permanent injunctive relief, without being required to post a bond, restraining Contractor or Representatives and any\nother person, partnership, firm, corporation, association or other legal entity acting in concert with Contractor from any actual or\nthreatened unauthorized disclosure or use of Confidential Information, in whole or in part, or from rendering any service to any other\nperson, partnership, firm, corporation, association or other legal entity to whom such Confidential Information in whole or in part, has\nbeen disclosed or used or is threatened to be disclosed or used; and\nCONTRACTOR’S INITIALS\n/s/ M.A.\n6\nb. Temporary and permanent injunctive relief, without being required to post a bond, restraining the Contractor from violating, directly or\nindirectly, the restrictions of the Restrictive Covenant in any capacity identified in Paragraph 6, supra; and\nc.\nCompensatory damages, including actual loss from misappropriation and unjust enrichment. Contractor further agrees to pay any and all\nlegal fees, including without limitation, all attorneys’ fees, court costs, and any other related fees and/or costs incurred by the Company\nin enforcing this Agreement.\nNotwithstanding the foregoing, the Company acknowledges and agrees that the Contractor will not be liable for the payment of any damages\nor fees owed to the Company through the operation of Paragraphs 9c above, unless and until a court of competent jurisdiction or arbitration panel\nhas determined that the Company or any of its assignees, successors or Affiliated Entities is entitled to such recovery.\nNothing in this Agreement shall be construed as prohibiting the Company or any Affiliated Entities from pursuing any other legal or equitable\nremedies available to it for actual or threatened breach of the provisions of Paragraphs 1 – 6 of this Agreement, and the existence of any claim or\ncause of action by Contractor against the Company or any of its Affiliated Entities may not constitute a defense to the enforcement by the Company\nor any of its Affiliated Entities of any of the provisions of this Agreement. The Company and its Affiliated Entities have fully performed all\nobligations entitling it to the covenants of Paragraphs 1 – 6 of this Agreement and therefore such prohibitions are not executory or otherwise subject\nto rejection under the bankruptcy code.\n8. Duty to Disclose Agreement. Contractor acknowledges that the Company has a legitimate business purpose in the protection of its Confidential\nInformation. Contractor also recognizes and agrees that the Company has the right to such information as is reasonably necessary to inform the\nCompany whether the terms of this Agreement are being complied with. Accordingly, Contractor agrees that Contractor will promptly notify any\nnew company that Contractor provides services to of his/her obligations contained here. Contractor also will provide the Company with the identity\nof the new company that he/she is providing services to and a description of the services being provided by him/her in sufficient detail to allow the\nCompany to reasonably determine whether such activities fall within the scope of activities prohibited by the provisions of this Agreement\n9. Waiver of Jury Trial. THE COMPANY AND CONTRACTOR EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION\nOR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY INSTRUMENT,\nDOCUMENT OR AGREEMENT DELIVERED IN CONNECTION HEREWITH OR HEREAFTER OR RELATED IN ANY FASHION\nTO THEIR RELATIONSHIP.\n10. Governing Law, Venue and Personal Jurisdiction. Notwithstanding anything to the contrary herein, this Agreement shall be governed by,\nconstrued and enforced in accordance with the laws of state of Florida without regard to any statutory or common-law provision pertaining to\nconflicts of laws. The parties agree that courts of competent jurisdiction in Lee County, Florida and the United States District Court for the Southern\nCONTRACTOR’S INITIALS\n/s/ M.A.\n7\nDistrict of Florida shall have concurrent jurisdiction for purposes of entering temporary, preliminary and permanent injunctive relief and with regard\nto any action arising out of any breach or alleged breach of this Agreement. Company waives personal service of any and all process upon Company\nand consents that all such service of process may be made by certified or registered mail directed to Company at the address stated in the signature\nsection of this Agreement, with service so made deemed to be completed upon actual receipt thereof. Company waives any objection to jurisdiction\nand venue of any action instituted against Company as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue.\nContractor further agrees that any action arising out of this Agreement or the relationship between the parties established herein shall be brought\nonly in courts of competent jurisdiction in Lee County, Florida or the United States District Court for the Southern District of Florida.\n11. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by\nContractor at any time. This Agreement may be assigned only by the Company to an Affiliated Entity and shall inure to the benefit of its successors\nand/or assigns.\n12. Entire Agreement. This Agreement is the entire agreement of the Parties with regard to the matters addressed herein, and supersedes all\nnegotiations, preliminary agreements, and all prior and contemporaneous discussions and understandings of the signatories in connection with the\nsubject matter of this Agreement, except however, that this Agreement shall be read in pari materia with the Medical Services Agreement and the\nWork Product Agreement. This Agreement may be modified only by written instrument signed by the Company and Contractor.\n13. Construction. The Parties agree that, notwithstanding the authorship of this Agreement by the Company, such Agreement shall not be construed\nmore favorably to one Party than the other.\n14. Severability. In case any one or more provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in\nany respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such\ninvalid, illegal were unenforceable provision had not been contained herein.\n15. Waiver. The waiver by the Company of a breach or threatened breach of this Agreement by Contractor cannot be construed as a waiver of any\nsubsequent breach by Contractor. The refusal or failure of the Company or any Affiliated Entity to enforce any specific restrictive covenant in this\nAgreement against Contractor, or any other person for any reason, shall not constitute a defense to the enforcement by the Company or any\nAffiliated Entity of any other restrictive covenant provision set forth in this Agreement.\n16. Consideration. Contractor expressly acknowledges and agrees that the execution by the Company of the Medical Services Agreement and the\ngranting of stock options and warrants to the Contractor constitutes full, adequate and sufficient consideration to Contractor for the covenants of\nContractor under this Agreement.\n17. Notices. All notices required by this Agreement shall be in writing, shall be personally delivered or sent by U.S. Registered or Certified Mail,\nreturn receipt requested, and shall be addressed to the signatories at the addresses shown on the signature page of this Agreement.\n18. Acknowledgements. Contractor acknowledge(s) that he has reviewed this Agreement prior to signing it, that he knows and understands the\ncontents, purposes and effect of this Agreement, and that he has been given a signed copy of this Agreement for her records. Contractor further\nacknowledges and agrees that he has entered into this Agreement freely, without any duress or coercion.\n19. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original for all intents and purposes.\nCONTRACTOR’S INITIALS\n/s/ M.A.\n8\nSignatures appear on the following page.\nCONTRACTOR’S INITIALS\n/s/ M.A.\n9\nIN WITNESS WHEREOF, THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND KNOW\nAND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY AGREE TO BE BOUND AND ABIDE BY THE REPRESENTATIONS,\nCOVENANTS, PROMISES AND WARRANTIES CONTAINED HEREIN.\nBy:\n/s/ Maher Albitar\n1/6/2012\nContractor Signature\nDate\nContractor Name:\nMaher Albitar, M.D.\nContractor Address:\nNeoGenomics Laboratories, Inc.\n12701 Commonwealth Drive, #5\nFort Myers, FL 33913\nBy:\n/s/ Maher Albitar, M.D .\n1/6/2012\nCompany Signature\nDate\nName: /s/ Steven Jones\nTitle: Executive Vice President, Finance\nCONTRACTOR’S INITIALS\n/s/ M.A.\n10	EX-10.3 6 d281487dex103.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.3\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Solicitation Agreement (the “Agreement”) dated this 6th day of January, 2012 is entered into by and between\nMaher Albitar, M.D., an individual who resides at the address set forth on the signature page hereof (“Contractor”) and NeoGenomics Laboratories,\nInc., a Florida corporation (“NeoGenomics” and collectively with NeoGenomics, Inc, a Nevada corporation, the NeoGenomics’ parent corporation,\nthe “Company”). Hereinafter, each of the Contractor or the Company maybe referred to as a “Party” and together be referred to as the “Parties”.\nRECITALS:\nWHEREAS, Contractor is a member of the Board of Directors of Health Discovery Corporation, a Georgia corporation, which specializes,\namong other things, in the field of discovering new proprietary methods for genetic and molecular laboratory testing; and\nWHEREAS, Health Discovery Corporation licensed its technology to NeoGenomics to commercialize certain cancer-related genetic and\nmolecular testing products and services pursuant to a licensing agreement; and\nWHEREAS, pursuant to such licensing agreement, Contractor agreed to provide full-time services to NeoGenomics in order to assist with\nsuch commercialization activities; and\nWHEREAS, NeoGenomics has appointed Contractor as its Chief Medical Officer; and\nWHEREAS, NeoGenomics and Albitar Oncology Consulting, LLC, a Delaware limited liability corporation solely owned by Contractor\n(“Medical Professional Corporation” or “MPC”), have entered into that certain Medical Services Agreement of even date herewith, which specifies\nhow NeoGenomics will work with MPC and Contractor, on a full-time basis to pursue business opportunities in the cancer-related genetic and\nmolecular testing market (the “Medical Services Agreement”) and that certain Confidentiality, Title To Work Product and Non-Solicit Agreement\nof even date herewith (the “Work Product Agreement”); and\n \nWHEREAS, Contractor will provide professional services to NeoGenomics through MPC and derive economic benefit from NeoGenomics\nthrough MPC; and\nWHEREAS, Contractor has also been awarded non-qualified stock options and warrants of the Company as part of the overall business\nrelationship with the Company; and\nWHEREAS, the Company will be providing MPC and Contractor with access to certain confidential and competitive information about\nNeoGenomics’ new product development plans, business and clients as part of the business arrangement with MPC; and\nWHEREAS, the Company desires to protect and preserve its Confidential Information and its legitimate business interests by having the\nContractor enter into this Agreement as part of the Medical Services Agreement; and\nWHEREAS, Contractor acknowledges that Company will disclose certain Company confidential and proprietary information, trade secrets\nand customer and supplier relationships and desires to establish and maintain a business relationship with the Company and as part of such business\nrelationship desires to enter into this Agreement with the Company.\nCONTRACTOR’S INITIALS\n/s/ MLA.\nNow, therefore, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and sufficiency\nof which is hereby acknowledged by Contractor, the Parties agree as follows:\n1. Term. The parties agree that the term of this agreement is effective upon execution and shall survive and continue to be in force and effect for\ntwo years following the earlier of a) the termination of any employment or independent contractor relationship between the Contractor and the MPC,\nwhether termination is by the MPC with or without cause, wrongful discharge, or for any other reason whatsoever, or by the Contractor, b) the date\non which the Contractor ceases to be an equity owner of the MPC, or c) the termination of the Medical Services Agreement between the MPC and\nthe Company or any entity that is wholly or partially owned by the Company (all of such entities being hereinafter referred to as “Affiliated\nEntities”). The aforementioned period during which this Agreement will remain in effect shall hereinafter be referred to as the “Term”.\n2. Definitions.\na. The term “Confidential Information” as used herein shall include all business practices, methods, techniques, or processes that: (i) derives\nindependent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other\npersons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to\nmaintain its secrecy. Confidential Information also includes, but is not limited to, files, letters, memoranda, reports, records, computer disks or other\ncomputer storage medium, data, models or any photographic or other tangible materials containing such information, Customer lists and names and\nother information, Customer contracts, other corporate contracts, computer programs, proprietary technical information and or strategies, sales,\npromotional or marketing plans or strategies, programs, techniques, practices, any expansion plans (including existing and entry into new geographic\nand/or product markets), pricing information, product or service offering specifications or plans thereof, business plans, financial information and\nother financial plans, data pertaining to the Company’s operating performance, employee lists, salary information, Personal Information, Protected\nHealth Information, all information the Company receives from customers or other third parties that is not generally known to the public or is subject\nto a confidentiality agreement, training manuals, and other materials and business information of a similar nature, including information about the\nCompany itself or any Affiliated Entity, which Contractor acknowledges and agrees has been compiled by the Company’s expenditure of a great\namount of time, money and effort, and that contains detailed information that could not be created independently from public sources. Further, all\ndata, spreadsheets, reports, records, know-how, verbal communication, proprietary and technical information and/or other confidential materials of\nsimilar kind transmitted by the Company or any Affiliated Entity to Contractor or developed by the Contractor on behalf of the Company or any\nAffiliate Entity as Work Product (as defined in Paragraph 7) are expressly included within the definition of “Confidential Information.” The Parties\nfurther agree that the fact the Company or any Affiliated Entity may be seeking to complete a business transaction is “Confidential Information”\nwithin the meaning of this Agreement, as well as all notes, analysis, work product or other material derived from Confidential Information.\nNotwithstanding anything contained herein to the contrary, Confidential Information does not include any information which is generally known to\nthird parties in the industry.\nb. The term “Personal Information” (“PI”) is Confidential Information and includes, but is not limited to, an individual’s first name and last\nname or first initial and last name in combination with any of the following: an individual’s social security number, tax I.D. number, social insurance\nnumber, driver’s license number, state issued identification card number, financial information, healthcare information, or credit or debit card\nnumber.\nc. The term “Protected Health Information” (“PHI”) is Confidential Information and includes information that is created, received, and/or\nmaintained by the Company related to an individual’s health care (or payment related to health care) that directly or indirectly identifies the\nindividual.\nCONTRACTOR’S INITIALS\n/s/ MLA.\nd. The term “Customer” shall mean any person or entity, the identity and contact information of which is kept confidential by the Company,\nwhich has purchased or ordered goods, products or services from the Company, entered into any contract for products or services with the Company,\nand/or entered into any contract for the distribution of any Products or services with the Company within the one (1) year immediately preceding a)\nthe termination of any employment or independent contractor relationship between the Contractor and the MPC, b) the date on which the Contractor\nceases to be an equity owner of the MPC, or c) the termination of the Medical Services Agreement between the MPC and the Company or any\nAffiliate Entity of the Company. Contractor acknowledges and agrees that the Company’s Customers, Customer relationships and Customer contact\ninformation have been compiled by the Company and will continue to be compiled by the Company at the expenditure of a great amount of time,\nmoney, expense and effort, and that the Company goes to considerable lengths and efforts to protect all such Customer information, and that such\ninformation is not readily available from public sources or known to third parties in the industry.\ne. The term “Prospective Customer” shall mean any person or entity, the identity and contact information of which is kept confidential by the\nCompany, which has evidenced an intention to engage in business to purchase or order goods, Products or services from the Company, has\nevidenced an intent to enter into any contract for Products or services with the Company, and/or has evidenced an intent to enter into any contract for\nthe distribution of any Products or services with the Company, (which such intention(s) shall be stated in writing) within the one (1) year\nimmediately preceding a) the termination of any employment or independent contractor relationship between the Contractor and the MPC, b) the\ndate on which the Contractor ceases to be an equity owner of the MPC, or c) the termination of the Medical Services Agreement between the MPC\nand the Company or any Affiliate Entity of the Company.\nf. The term “Restricted Area” shall include any geographical location anywhere in the United States. If the Restricted Area specified in this\nAgreement should be judged unreasonable in any proceeding, then the Restricted Area shall be reduced so that the restrictions may be enforced as is\njudged to be reasonable.\ng. The phrase “directly or indirectly” shall include the Contractor either on his/her own account, or as a partner, owner, promoter, joint\nventurer, employee, agent, consultant, advisor, manager, executive, independent contractor, officer, director, or a stockholder of 5% or more of the\nvoting shares of an entity in the Business of Company.\n \nh. The term “Business” shall mean the business of performing cancer-related research and development activities associated with genetic and\nmolecular laboratory testing and providing cancer-related genetic and molecular laboratory testing products and services for profit, including, but not\nlimited to, cytogenetics, flow cytometry, fluorescence in-situ hybridization (“FISH”), morphological studies, polymerase chain reaction (“PCR”)\ntesting, and other molecular testing, to hematologists, oncologists, urologists, pathologists, hospitals and other medical reference laboratories.\ni. The term “Full-time” should not exclude the contractor from continuing his work as a Director on the Board and a Consultant to Health\nDiscovery Corp (HDC) as long as this work is not cancer or hematology-related.\n3. Duty of Confidentiality.\na. All Confidential Information is considered highly sensitive and strictly confidential. The Contractor agrees that at all times during the term\nof this Agreement and after the termination of Medical Services Agreement for as long as such information remains non-public information, the\nContractor shall (i) hold in confidence and refrain from disclosing to any other party all Confidential Information, whether written or oral, tangible or\nintangible, concerning the Company or any Affiliated Entities and their business and operations unless such disclosure is accompanied by a non-\ndisclosure agreement executed by the Company with the party to whom such Confidential Information is provided, (ii) use the Confidential\nInformation solely in connection with his or her services to the Company or any Affiliated Entity and for no other purpose, (iii) take\nCONTRACTOR’S INITIALS\n/s/ MLA.\nall precautions necessary to ensure that the Confidential Information shall not be, or be permitted to be, shown, copied or disclosed to third parties,\nwithout the prior written consent of the Company or any Affiliated Entity, (iv) observe all security policies implemented by the Company or any\nAffiliated Entity from time to time with respect to the Confidential Information, and (v) not use or disclose, directly or indirectly, as an individual or\nas a partner, joint venturer, employee, agent, salesman, contractor, officer, director or otherwise, for the benefit of himself or herself or any other\nperson, partnership, firm, corporation, association or other legal entity, any Confidential Information, unless expressly permitted by this Agreement.\nContractor agrees that protection of the Company’s and any Affiliated Entity’s Confidential Information constitutes a legitimate business interest\njustifying the restrictive covenants contained herein. Contractor further agrees that the restrictive covenants contained herein are reasonably\nnecessary to protect the Company’s and any Affiliated Entity’s legitimate business interest in preserving its Confidential Information. In addition,\nContractor will not view or access any PI or PHI unless required and authorized by the Company to do so. Contractor acknowledges that he/she shall\nbear all costs, losses and damages resulting from any intentional breach of this paragraph, to the fullest extent permitted by applicable law.\nb. In the event that the Contractor is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding or\notherwise, such disclosure shall be limited to the narrowest disclosure so required and, except to the extent prohibited by law, Contractor shall give\nthe Company or any Affiliated Entities at least two (2) weeks’ notice, if practicable, of the basis for any such compelled disclosure of Confidential\nInformation and shall reasonably cooperate with the Company or any Affiliated Entities in limiting disclosure and obtaining suitable confidentiality\nprotections.\nc. Contractor acknowledge(s) that this “Confidential Information” is of value to the Company and/or any Affiliated Entities by providing them\nwith a competitive advantage over their competitors, is not generally known to competitors of the Company, and is not intended by the Company or\nany Affiliated Entities for general dissemination. Contractor acknowledges that this “Confidential Information” derives independent economic value,\nactual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain\neconomic value from its disclosure or use, and is the subject of reasonable efforts to maintain its secrecy. Therefore, the Parties agree that all\n“Confidential Information” under this Agreement constitutes “Trade Secrets” under both Section 688.002 and Chapter 812 of the Florida Statutes\nand California’s Uniform Trade Secrets Act, Cal. Civ. Code section 3426 et seq.\n4. Limited Right of Disclosure. Except as otherwise permitted by this Agreement, Contractor shall limit disclosure of pertinent Confidential\nInformation to Contractor’s attorney, if any (“Representative(s)”), for the sole purpose of evaluating Contractor’s relationship with the Company.\nContractor agrees to show this Agreement to any Representatives and Contractor agrees that Paragraph 3 of this Agreement shall bind all such\nRepresentative(s).\n5. Return of Company Property and Confidential Materials. All tangible property, including cell phones, laptop computers and other Company\npurchased property, as well as all Confidential Information, Customer and Prospective Customer information and property, provided to Contractor is\nthe exclusive property of the Company and/or its Affiliated Entities and must be returned to the Company and/or its Affiliated Entities in accordance\nwith the instructions of the Company and/or such Affiliated Entities either upon termination of the Medical Services Agreement or at such other time\nas is requested by the Company. Contractor agree(s) that upon the earlier of a) the termination of any employment or independent contractor\nrelationship between the Contractor and the MPC, b) the date on which the Contractor ceases to be an equity owner of the MPC, or c) the\ntermination of the Medical Services Agreement between the MPC and the Company or any Affiliate Entity of the Company, Contractor shall return\nall copies, in whatever form or media, including hard copies and electronic copies, of Confidential Information to the Company and/or the Affiliated\nEntity, and Contractor shall delete any copy of the Confidential Information on any computer file or database maintained by Contractor and, if\nrequested in writing, shall certify in writing that he/she has done so. In addition to returning all information to the Company and/or any Affiliated\nEntities as described above, Contractor will destroy any analysis, notes, work product or\nCONTRACTOR’S INITIALS\n/s/ MLA.\nother materials relating to or derived from the Confidential Information. Any intentional or unauthorized retention of Confidential Information may\nconstitute “misappropriation” as such term is defined in both Chapter 772 of the Florida Statutes and Cal. Civ. Code section 3426.1(b).\n6. Restrictive Covenant. The Company and its Affiliated Entities are engaged in the business of performing cancer-related research and\ndevelopment activities associated with genetic and molecular laboratory testing and providing cancer-related genetic and molecular laboratory\ntesting products and services to oncologists, urologists, pathologists, physicians, hospitals, and other medical laboratories. The covenants contained\nin this Paragraph 8 (the “Restrictive Covenants”) are given and made by Contractor to induce the Company to enter into the Medical Services\nAgreement and to protect the Confidential Information of the Company, and Contractor acknowledges sufficiency of consideration for these\nRestrictive Covenants. Contractor expressly covenants and agrees that, during the time the Management Services Agreement is in effect between the\nMPC and the Company and for a period of two years following the earlier of a) the termination of any employment or independent contractor\nrelationship between the Contractor and the MPC, b) the date on which the Contractor ceases to be an equity owner of the MPC, or c) the\ntermination of the Medical Services Agreement between the MPC and the Company or any Affiliate Entity of the Company (such period of time is\nhereinafter referred to as the “Restrictive Period”), he will abide by the following restrictive covenants, unless an exception is specifically provided,\nin writing signed by Company.\nThis Section Intentionally I eft Blank.\nb.  Non-Competition. Contractor agrees and acknowledges that, during the Restrictive Period, he will not, directly or indirectly, for\nhimself, or on behalf of others, as an individual on Contractor’s own account, or as a partner, joint venturer, employee, agent, salesman,\ncontractor, officer, director or otherwise, for him/herself or any other person, partnership, firm, corporation, association or other legal\nentity, enter into, engage in, accept employment from, or provide any competitive services to, or for, any business that is in the\nBusiness of the Company, or engage in any activity that is competitive with the Company, in the Restricted Area. The parties agree\nthat this non-competition provision is intended to cover situations where a future business opportunity in which the Contractor is\nengaged or a future employer of the Contractor is selling the same or similar products and services in a Business which may compete\nwith the Company’s products and services to Customers and Prospective Customers of the Company in the Restricted Area. This\nprovision shall not cover future business opportunities or employers of the Contractor that sell different types of products or services in\nthe Restricted Area so long as such future business opportunities or employers are not in the Business of the Company.\n \nNotwithstanding the preceding paragraphs, the spirit and intent of this non-competition clause is not to deny the Contractor the ability to\nsupport his or her family, but rather to prevent Contractor from using the knowledge and experiences obtained from the Company in a\nsimilar competitive environment. Along those lines, should the Contractor leave the employment of the MPC or the Medical Services\nAgreement between the MPC and the Company be terminated for any reason, he would be prohibited from joining a for-profit cancer\ngenetics testing laboratory and/or company in the Business of the Company in the Restricted Area. The Parties agree that all non-profit\nmedical testing laboratories, hospitals and academic institutions as well as for-profit testing laboratories not engaged in cancer genetics\nresearch and development or testing services are excluded from the restrictions in paragraph 8(b). In other words, Contractor would be\nallowed under this non-compete clause to work in any non-profit cancer genetics research and development or testing laboratory (e.g., in\nacademia) as well as in a private, for-profit testing laboratories not engaged in cancer genetics research and development or testing.\nThus, the spirit and intent of this non-competition clause is intended to prevent Contractor from acting in any of the capacities outlined in\nthis paragraph for any “for-profit” cancer genetics research and development or testing laboratories that do any one or more of the types\nof testing services defined in the definition of Business in the Restricted Area.\nCONTRACTOR’S INITIALS\n/s/ MLA.\nc.  Acknowledgements of Contractor.\n@ The Contractor understands and acknowledges that any material violation of this Agreement shall constitute a material breach of\nthis Agreement, and it will cause irreparable harm and loss to the Company or any Affiliated Entity for which monetary damages\nwill be an insufficient remedy. Therefore, the Parties agree that in addition to any other remedies available, the Company and its\nAffiliated Entities will be entitled to the relief identified in Paragraph No. 7 below.\n(i)  The Restrictive Covenants shall be construed as agreements independent of any other provision in this Agreement\n(iii)  Contractor agrees that the Restrictive Covenants are reasonably necessary to protect the legitimate business interests of the\nCompany or any Affiliated Entity and to protect its Confidential Information.\n(iv)  Contractor agrees that this Agreement may be enforced by the Company’s assignee or successor or any of the Affiliated Entities\nand Contractor acknowledges and agrees that assignees, successors and Affiliated Entities are intended beneficiaries of this\nAgreement.\nW) Contractor agrees that if any portion of the Restrictive Covenants are held by an arbitration panel or court of competent\njurisdiction to be unreasonable, arbitrary or against public policy for any reason, they shall be modified accordingly as to time,\ngeographic area and line of business so as to be enforceable to the fullest extent possible as to time, area and line of business.\n(vi)  Contractor agrees that any material violation of the Restrictive Covenants, in any capacity identified herein, are a material breach\nof this Agreement.\n(vii) Contractor agrees that any failure of the Company or any Affiliated Entity to enforce the Restrictive Covenants against any other\nemployee or contractor, for any reason, shall not constitute a defense to enforcement of the Restrictive Covenants against the\nContractor.\n7. Specific Performance; Injunction. The Parties agree and acknowledge that the restrictions contained in Paragraphs 1-6 are reasonable in scope\nand duration and are necessary to protect the Company or any of its Affiliated Entities. If any provision of Paragraphs 1-6 as applied to any party or\nto any circumstance is adjudged by a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the validity or\nenforceability of any other provision of this Agreement. If any such provision, or any part thereof, is held to be unenforceable because of the\nduration of such provision or the area covered thereby, the Parties agree that the court making such determination shall have the power to reduce the\nduration and/or area of such provision, and/or to delete specific words or phrases, and in its reduced form, such provision shall then be enforceable\nand shall be enforced.\nAny material unauthorized use or disclosure of information in violation of Paragraphs 2-5 above or violation of the Restrictive Covenant in\nParagraph 6 shall constitute a material breach of this Agreement, may constitute misappropriation under California law, and may cause irreparable\nharm and loss to the Company or any of its Affiliated Entities for which monetary damages will be an insufficient remedy. Therefore, the Parties\nagree that in addition to any other remedy available, the Company or any of its Affiliated Entities may be entitled to all of available civil remedies,\nincluding:\na.  Temporary and permanent injunctive relief, without being required to post a bond, restraining Contractor or Representatives and any\nother person, partnership, firm, corporation, association or other legal entity acting in concert with Contractor from any actual or\nthreatened unauthorized disclosure or use of Confidential Information, in whole or in part, or from rendering any service to any other\nperson, partnership, firm, corporation, association or other legal entity to whom such Confidential Information in whole or in part, has\nbeen disclosed or used or is threatened to be disclosed or used; and\nCONTRACTOR’S INITIALS\n/s/ MLA.\nb.  Temporary and permanent injunctive relief, without being required to post a bond, restraining the Contractor from violating, directly or\nindirectly, the restrictions of the Restrictive Covenant in any capacity identified in Paragraph 6, supra; and\nc.  Compensatory damages, including actual loss from misappropriation and unjust enrichment. Contractor further agrees to pay any and all\nlegal fees, including without limitation, all attorneys’ fees, court costs, and any other related fees and/or costs incurred by the Company\nin enforcing this Agreement.\nNotwithstanding the foregoing, the Company acknowledges and agrees that the Contractor will not be liable for the payment of any damages\nor fees owed to the Company through the operation of Paragraphs 9c above, unless and until a court of competent jurisdiction or arbitration panel\nhas determined that the Company or any of its assignees, successors or Affiliated Entities is entitled to such recovery.\nNothing in this Agreement shall be construed as prohibiting the Company or any Affiliated Entities from pursuing any other legal or equitable\nremedies available to it for actual or threatened breach of the provisions of Paragraphs 1 — 6 of this Agreement, and the existence of any claim or\ncause of action by Contractor against the Company or any of its Affiliated Entities may not constitute a defense to the enforcement by the Company\nor any of its Affiliated Entities of any of the provisions of this Agreement. The Company and its Affiliated Entities have fully performed all\nobligations entitling it to the covenants of Paragraphs 1 — 6 of this Agreement and therefore such prohibitions are not executory or otherwise subject\nto rejection under the bankruptcy code.\n8. Duty to Disclose Agreement. Contractor acknowledges that the Company has a legitimate business purpose in the protection of its Confidential\nInformation. Contractor also recognizes and agrees that the Company has the right to such information as is reasonably necessary to inform the\nCompany whether the terms of this Agreement are being complied with. Accordingly, Contractor agrees that Contractor will promptly notify any\nnew company that Contractor provides services to of his/her obligations contained here. Contractor also will provide the Company with the identity\nof the new company that he/she is providing services to and a description of the services being provided by him/her in sufficient detail to allow the\nCompany to reasonably determine whether such activities fall within the scope of activities prohibited by the provisions of this Agreement\n \n9. Waiver of Jury Trial. THE COMPANY AND CONTRACTOR EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION\nOR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY INSTRUMENT,\nDOCUMENT OR AGREEMENT DELIVERED IN CONNECTION HEREWITH OR HEREAFTER OR RELATED IN ANY FASHION\nTO THEIR RELATIONSHIP.\n10. Governing L.aw, Venue and Personal Jurisdiction. Notwithstanding anything to the contrary herein, this Agreement shall be governed by,\nconstrued and enforced in accordance with the laws of state of Florida without regard to any statutory or common-law provision pertaining to\nconflicts of laws. The parties agree that courts of competent jurisdiction in Lee County, Florida and the United States District Court for the Southern\nCONTRACTOR’S INITIALS\n/s/ MLA.\nDistrict of Florida shall have concurrent jurisdiction for purposes of entering temporary, preliminary and permanent injunctive relief and with regard\nto any action arising out of any breach or alleged breach of this Agreement. Company waives personal service of any and all process upon Company\nand consents that all such service of process may be made by certified or registered mail directed to Company at the address stated in the signature\nsection of this Agreement, with service so made deemed to be completed upon actual receipt thereof. Company waives any objection to jurisdiction\nand venue of any action instituted against Company as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue.\nContractor further agrees that any action arising out of this Agreement or the relationship between the parties established herein shall be brought\nonly in courts of competent jurisdiction in Lee County, Florida or the United States District Court for the Southern District of Florida.\n11. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by\nContractor at any time. This Agreement may be assigned only by the Company to an Affiliated Entity and shall inure to the benefit of its successors\nand/or assigns.\n12. Entire Agreement. This Agreement is the entire agreement of the Parties with regard to the matters addressed herein, and supersedes all\nnegotiations, preliminary agreements, and all prior and contemporaneous discussions and understandings of the signatories in connection with the\nsubject matter of this Agreement, except however, that this Agreement shall be read in pari materia with the Medical Services Agreement and the\nWork Product Agreement. This Agreement may be modified only by written instrument signed by the Company and Contractor.\n13. Construction. The Parties agree that, notwithstanding the authorship of this Agreement by the Company, such Agreement shall not be construed\nmore favorably to one Party than the other.\n14. Severability. In case any one or more provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in\nany respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such\ninvalid, illegal were unenforceable provision had not been contained herein.\n15. Waiver. The waiver by the Company of a breach or threatened breach of this Agreement by Contractor cannot be construed as a waiver of any\nsubsequent breach by Contractor. The refusal or failure of the Company or any Affiliated Entity to enforce any specific restrictive covenant in this\nAgreement against Contractor, or any other person for any reason, shall not constitute a defense to the enforcement by the Company or any\nAffiliated Entity of any other restrictive covenant provision set forth in this Agreement.\n16. Consideration. Contractor expressly acknowledges and agrees that the execution by the Company of the Medical Services Agreement and the\ngranting of stock options and warrants to the Contractor constitutes full, adequate and sufficient consideration to Contractor for the covenants of\nContractor under this Agreement.\n17. Notices. All notices required by this Agreement shall be in writing, shall be personally delivered or sent by U.S. Registered or Certified Mail,\nreturn receipt requested, and shall be addressed to the signatories at the addresses shown on the signature page of this Agreement.\n18. Acknowledgements. Contractor acknowledge(s) that he has reviewed this Agreement prior to signing it, that he knows and understands the\ncontents, purposes and effect of this Agreement, and that he has been given a signed copy of this Agreement for her records. Contractor further\nacknowledges and agrees that he has entered into this Agreement freely, without any duress or coercion.\n \n19. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original for all intents and purposes.\nCONTRACTOR’S INITIALS\n/s/ MLA.\n \nSignatures appear on the following page.\nCONTRACTOR’S INITIALS\n/s/ M.A.\nIN WITNESS WHEREOF, THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND KNOW AND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY AGREE TO BE BOUND AND ABIDE BY THE REPRESENTATIONS, COVENANTS, PROMISES AND WARRANTIES CONTAINED HEREIN. By: /s/ Maher Albitar\nContractor Signature\nContractor Name: Mabher Albitar, M.D.\nContractor Address:\nNeoGenomics Laboratories, Inc.\n12701 Commonwealth Drive, #5\nFort Myers, FL 33913\nBy: /s/ Maher Albitar, M.D. Company Signature\nName: /s/ Steven Jones\nTitle: Executive Vice President, Finance\n1/6/2012 Date\n1/6/2012\nDate\n10\nCONTRACTOR’S INITIALS\n/s/ MLA.	EX-10.3 6 d281487dex103.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.3\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Solicitation Agreement (the "Agreement") dated this 6th day of January, 2012 is entered into by and between\nMaher Albitar, M.D., an individual who resides at the address set forth on the signature page hereof ("Contractor") and NeoGenomics Laboratories,\nInc.,\na\nFlorida\ncorporation ("NeoGenomics" and collectively with NeoGenomics, Inc, a Nevada corporation, the NeoGenomics' parent corporation,\nthe "Company."). Hereinafter, each of the Contractor or the Company maybe referred to as a "Party." and together be referred to as the "Parties".\nRECITALS:\nWHEREAS, Contractor is a member of the Board of Directors of Health Discovery Corporation, a Georgia corporation, which specializes,\namong other things, in the field of discovering new proprietary methods for genetic and molecular laboratory testing; and\nWHEREAS, Health Discovery Corporation licensed its technology to NeoGenomics to commercialize certain cancer-related genetic and\nmolecular testing products and services pursuant to a licensing agreement; and\nWHEREAS, pursuant to such licensing agreement, Contractor agreed to provide full-time services to NeoGenomics in order to assist with\nsuch commercialization activities; and\nWHEREAS, NeoGenomics has appointed Contractor as its Chief Medical Officer; and\nWHEREAS, NeoGenomics and Albitar Oncology Consulting, LLC, a Delaware limited liability corporation solely owned by Contractor\n("Medical Professional Corporation" or "MPC"), have entered into that certain Medical Services Agreement of even date herewith, which specifies\nhow NeoGenomics will work with MPC and Contractor, on a full-time basis to pursue business opportunities in the cancer-related genetic and\nmolecular testing market (the "Medical Services Agreement") and that certain Confidentiality, Title To Work Product and Non-Solicit Agreement\nof even date herewith (the "Work Product Agreement"); and\nWHEREAS, Contractor will provide professional services to NeoGenomics through MPC and derive economic benefit from NeoGenomics\nthrough MPC; and\nWHEREAS, Contractor has also been awarded non-qualified stock options and warrants of the Company as part of the overall business\nrelationship with the Company; and\nWHEREAS, the Company will be providing MPC and Contractor with access to certain confidential and competitive information about\nNeoGenomics' new product development plans, business and clients as part of the business arrangement with MPC; and\nWHEREAS, the Company desires to protect and preserve its Confidential Information and its legitimate business interests by having the\nContractor enter into this Agreement as part of the Medical Services Agreement; and\nWHEREAS, Contractor acknowledges that Company will disclose certain Company confidential and proprietary information, trade secrets\nand customer and supplier relationships and desires to establish and maintain a business relationship with the Company and as part of such business\nrelationship desires to enter into this Agreement with the Company.\nCONTRACTOR'S INITIALS\n/s/ M.A.\n1\nNow, therefore, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and sufficiency\nof which is hereby acknowledged by Contractor, the Parties agree as follows:\n1. Term. The parties agree that the term of this agreement is effective upon execution and shall survive and continue to be in force and effect for\ntwo years following the earlier of a) the termination of any employment or independent contractor relationship between the Contractor and the MPC,\nwhether termination is by the MPC with or without cause, wrongful discharge, or for any other reason whatsoever, or by the Contractor, b) the date\non which the Contractor ceases to be an equity owner of the MPC, or c) the termination of the Medical Services Agreement between the MPC and\nthe Company or any entity that is wholly or partially owned by the Company (all of such entities being hereinafter referred to as "Affiliated\nEntities"). The aforementioned period during which this Agreement will remain in effect shall hereinafter be referred to as the "Term"\n2. Definitions.\na. The term "Confidential Information" as used herein shall include all business practices, methods, techniques, or processes that: (i) derives\nindependent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other\npersons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to\nmaintain its secrecy. Confidential Information also includes, but is not limited to, files, letters, memoranda, reports, records, computer disks or other\ncomputer storage medium, data, models or any photographic or other tangible materials containing such information, Customer lists and names and\nother information, Customer contracts, other corporate contracts, computer programs, proprietary technical information and or strategies, sales,\npromotional or marketing plans or strategies, programs, techniques, practices, any expansion plans (including existing and entry into new geographic\nand/or product markets), pricing information, product or service offering specifications or plans thereof, business plans, financial information and\nother financial plans, data pertaining to the Company's operating performance, employee lists, salary information, Personal Information, Protected\nHealth Information, all information the Company receives from customers or other third parties that is not generally known to the public or is subject\nto a confidentiality agreement, training manuals, and other materials and business information of a similar nature, including information about the\nCompany itself or any Affiliated Entity, which Contractor acknowledges and agrees has been compiled by the Company's expenditure of a great\namount of time, money and effort, and that contains detailed information that could not be created independently from public sources. Further, all\ndata, spreadsheets, reports, records, know-how, verbal communication, proprietary and technical information and/or other confidential materials of\nsimilar kind transmitted by the Company or any Affiliated Entity to Contractor or developed by the Contractor on behalf of the Company or any\nAffiliate Entity as Work Product (as defined in Paragraph 7) are expressly included within the definition of "Confidential Information." The Parties\nfurther agree that the fact the Company or any Affiliated Entity may be seeking to complete a business transaction is "Confidential Information"\nwithin the meaning of this Agreement, as well as all notes, analysis, work product or other material derived from Confidential Information.\nNotwithstanding anything contained herein to the contrary, Confidential Information does not include any information which is generally known to\nthird parties in the industry.\nb. The term "Personal Information" ("PI") is Confidential Information and includes, but is not limited to, an individual's first name and last\nname or first initial and last name in combination with any of the following: an individual's social security number, tax I.D. number, social insurance\nnumber, driver's license number, state issued identification card number, financial information, healthcare information, or credit or debit card\nnumber.\nC. The term "Protected Health Information" ("PHI") is Confidential Information and includes information that is created, received, and/or\nmaintained by the Company related to an individual's health care (or payment related to health care) that directly or indirectly identifies the\nindividual.\nCONTRACTOR'S INITIALS\n/s/ M.A.\n2\nd.\nThe term "Customer" shall mean any person or entity, the identity and contact information of which is kept confidential by the Company,\nwhich has purchased or ordered goods, products or services from the Company, entered into any contract for products or services with the Company,\nand/or entered into any contract for the distribution of any Products or services with the Company within the one (1) year immediately preceding a)\nthe termination of any employment or independent contractor relationship between the Contractor and the MPC, b) the date on which the Contractor\nceases to be an equity owner of the MPC, or c) the termination of the Medical Services Agreement between the MPC and the Company or any\nAffiliate Entity of the Company. Contractor acknowledges and agrees that the Company's Customers, Customer relationships and Customer contact\ninformation have been compiled by the Company and will continue to be compiled by the Company at the expenditure of a great amount of time,\nmoney, expense and effort, and that the Company goes to considerable lengths and efforts to protect all such Customer information, and that such\ninformation is not readily available from public sources or known to third parties in the industry.\ne. The term "Prospective Customer" shall mean any person or entity, the identity and contact information of which is kept confidential by the\nCompany, which has evidenced an intention to engage in business to purchase or order goods, Products or services from the Company, has\nevidenced an intent to enter into any contract for Products or services with the Company, and/or has evidenced an intent to enter into any contract for\nthe distribution of any Products or services with the Company, (which such intention(s) shall be stated in writing) within the one (1) year\nimmediately preceding a) the termination of any employment or independent contractor relationship between the Contractor and the MPC, b) the\ndate on which the Contractor ceases to be an equity owner of the MPC, or c) the termination of the Medical Services Agreement between the MPC\nand the Company or any Affiliate Entity of the Company.\nf. The term "Restricted Area" shall include any geographical location anywhere in the United States. If the Restricted Area specified in this\nAgreement should be judged unreasonable in any proceeding, then the Restricted Area shall be reduced so that the restrictions may be enforced as is\njudged to be reasonable.\ng. The phrase "directly or indirectly." shall include the Contractor either on his/her own account, or as a partner, owner, promoter, joint\nventurer, employee, agent, consultant, advisor, manager, executive, independent contractor, officer, director, or a stockholder of 5% or more of the\nvoting shares of an entity in the Business of Company.\nh. The term "Business" shall mean the business of performing cancer-related research and development activities associated with genetic and\nmolecular laboratory testing and providing cancer-related genetic and molecular laboratory testing products and services for profit, including, but not\nlimited to, cytogenetics, flow cytometry, fluorescence in-situ hybridization ("FISH"), morphological studies, polymerase chain reaction ("PCR")\ntesting, and other molecular testing, to hematologists, oncologists, urologists, pathologists, hospitals and other medical reference laboratories.\ni. The term "Full-time" should not exclude the contractor from continuing his work as a Director on the Board and a Consultant to Health\nDiscovery Corp (HDC) as long as this work is not cancer or hematology-related.\n3. Duty of Confidentiality.\na. All Confidential Information is considered highly sensitive and strictly confidential. The Contractor agrees that at all times during the term\nof this Agreement and after the termination of Medical Services Agreement for as long as such information remains non-public information, the\nContractor shall (i) hold in confidence and refrain from disclosing to any other party all Confidential Information, whether written or oral, tangible\nor\nintangible, concerning the Company or any Affiliated Entities and their business and operations unless such disclosure is accompanied by a non-\ndisclosure agreement executed by the Company with the party to whom such Confidential Information is provided, (ii) use the Confidential\nInformation solely in connection with his or her services to the Company or any Affiliated Entity and for no other purpose, (iii) take\nCONTRACTOR'S INITIALS\n/s/ M.A.\n3\nall precautions necessary to ensure that the Confidential Information shall not be, or be permitted to be, shown, copied or disclosed to third parties,\nwithout the prior written consent of the Company or any Affiliated Entity, (iv) observe all security policies implemented by the Company or any\nAffiliated Entity from time to time with respect to the Confidential Information, and (v) not use or disclose, directly or indirectly, as an individual\nor\nas a partner, joint venturer, employee, agent, salesman, contractor, officer, director or otherwise, for the benefit of himself or herself or any other\nperson, partnership, firm, corporation, association or other legal entity, any Confidential Information, unless expressly permitted by this Agreement.\nContractor agrees that protection of the Company's and any Affiliated Entity's Confidential Information constitutes a legitimate business interest\njustifying the restrictive covenants contained herein. Contractor further agrees that the restrictive covenants contained herein are reasonably\nnecessary to protect the Company's and any Affiliated Entity's legitimate business interest in preserving its Confidential Information. In addition,\nContractor will not view or access any PI or PHI unless required and authorized by the Company to do so. Contractor acknowledges that he/she\nshall\nbear all costs, losses and damages resulting from any intentional breach of this paragraph, to the fullest extent permitted by applicable law.\nb. In the event that the Contractor is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding or\notherwise, such disclosure shall be limited to the narrowest disclosure so required and, except to the extent prohibited by law, Contractor shall give\nthe Company or any Affiliated Entities at least two (2) weeks' notice, if practicable, of the basis for any such compelled disclosure of Confidential\nInformation and shall reasonably cooperate with the Company or any Affiliated Entities in limiting disclosure and obtaining suitable confidentiality\nprotections.\nC. Contractor acknowledge(s) that this "Confidential Information" is of value to the Company and/or any Affiliated Entities by providing them\nwith a competitive advantage over their competitors, is not generally known to competitors of the Company, and is not intended by the Company or\nany Affiliated Entities for general dissemination. Contractor acknowledges that this "Confidential Information" derives independent economic value,\nactual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain\neconomic value from its disclosure or use, and is the subject of reasonable efforts to maintain its secrecy. Therefore, the Parties agree that all\n"Confidential Information" under this Agreement constitutes "Trade Secrets" under both Section 688.002 and Chapter 812 of the Florida Statutes\nand California's Uniform Trade Secrets Act, Cal. Civ. Code section 3426 et seq.\n4. Limited Right of Disclosure. Except as otherwise permitted by this Agreement, Contractor shall limit disclosure of pertinent Confidential\nInformation to Contractor's attorney, if any ("Representative(s)"), for the sole purpose of evaluating Contractor's relationship with the Company.\nContractor agrees to show this Agreement to any Representatives and Contractor agrees that Paragraph 3 of this Agreement shall bind all such\nRepresentative(s).\n5. Return of Company Property and Confidential Materials. All tangible property, including cell phones, laptop computers and other Company\npurchased property, as well as all Confidential Information, Customer and Prospective Customer information and property, provided to Contractor is\nthe exclusive property of the Company and/or its Affiliated Entities and must be returned to the Company and/or its Affiliated Entities in accordance\nwith the instructions of the Company and/or such Affiliated Entities either upon termination of the Medical Services Agreement or at such other time\nas is requested by the Company. Contractor agree(s) that upon the earlier of a) the termination of any employment or independent contractor\nrelationship between the Contractor and the MPC, b) the date on which the Contractor ceases to be an equity owner of the MPC, or c) the\ntermination of the Medical Services Agreement between the MPC and the Company or any Affiliate Entity of the Company, Contractor shall return\nall copies, in whatever form or media, including hard copies and electronic copies, of Confidential Information to the Company and/or the Affiliated\nEntity, and Contractor shall delete any copy of the Confidential Information on any computer file or database maintained by Contractor and, if\nrequested in writing, shall certify in writing that he/she has done SO. In addition to returning all information to the Company and/or any Affiliated\nEntities as described above, Contractor will destroy any analysis, notes, work product or\nCONTRACTOR'S INITIALS\n/s/ M.A.\n4\nother materials relating to or derived from the Confidential Information. Any intentional or unauthorized retention of Confidential Information may\nconstitute "misappropriation" as such term is defined in both Chapter 772 of the Florida Statutes and Cal. Civ. Code section 3426.1(b)\n6. Restrictive Covenant. The Company and its Affiliated Entities are engaged in the business of performing cancer-related research and\ndevelopment activities associated with genetic and molecular laboratory testing and providing cancer-related genetic and molecular laboratory\ntesting products and services to oncologists, urologists, pathologists, physicians, hospitals, and other medical laboratories. The covenants contained\nin this Paragraph 8 (the "Restrictive Covenants") are given and made by Contractor to induce the Company to enter into the Medical Services\nAgreement and to protect the Confidential Information of the Company, and Contractor acknowledges sufficiency of consideration for these\nRestrictive Covenants. Contractor expressly covenants and agrees that, during the time the Management Services Agreement is in effect between the\nMPC and the Company and for a period of two years following the earlier of a) the termination of any employment or independent contractor\nrelationship between the Contractor and the MPC, b) the date on which the Contractor ceases to be an equity owner of the MPC, or c) the\ntermination of the Medical Services Agreement between the MPC and the Company or any Affiliate Entity of the Company (such period of time is\nhereinafter referred to as the "Restrictive Period"), he will abide by the following restrictive covenants, unless an exception is specifically provided,\nin writing signed by Company.\na.\nThis Section Intentionally Left Blank.\nb.\nNon-Competition. Contractor agrees and acknowledges that, during the Restrictive Period, he will not, directly or indirectly, for\nhimself, or on behalf of others, as an individual on Contractor's own account, or as a partner, joint venturer, employee, agent, salesman,\ncontractor, officer, director or otherwise, for him/herself or any other person, partnership, firm, corporation, association or other legal\nentity, enter into, engage in, accept employment from, or provide any competitive services to, or for, any business that is in the\nBusiness of the Company, or engage in any activity that is competitive with the Company, in the Restricted Area. The parties agree\nthat this non-competition provision is intended to cover situations where a future business opportunity in which the Contractor is\nengaged or a future employer of the Contractor is selling the same or similar products and services in a Business which may compete\nwith the Company's products and services to Customers and Prospective Customers of the Company in the Restricted Area. This\nprovision shall not cover future business opportunities or employers of the Contractor that sell different types of products or services in\nthe Restricted Area SO long as such future business opportunities or employers are not in the Business of the Company.\nNotwithstanding the preceding paragraphs, the spirit and intent of this non-competition clause is not to deny the Contractor the ability to\nsupport his or her family, but rather to prevent Contractor from using the knowledge and experiences obtained from the Company in a\nsimilar competitive environment. Along those lines, should the Contractor leave the employment of the MPC or the Medical Services\nAgreement between the MPC and the Company be terminated for any reason, he would be prohibited from joining a for-profit cancer\ngenetics testing laboratory and/or company in the Business of the Company in the Restricted Area. The Parties agree that all non-profit\nmedical testing laboratories, hospitals and academic institutions as well as for-profit testing laboratories not engaged in cancer genetics\nresearch and development or testing services are excluded from the restrictions in paragraph 8(b). In other words, Contractor would be\nallowed under this non-compete clause to work in any non-profit cancer genetics research and development or testing laboratory (e.g., in\nacademia) as well as in a private, for-profit testing laboratories not engaged in cancer genetics research and development or testing.\nThus, the spirit and intent of this non-competition clause is intended to prevent Contractor from acting in any of the capacities outlined in\nthis paragraph for any "for-profit" cancer genetics research and development or testing laboratories that do any one or more of the types\nof testing services defined in the definition of Business in the Restricted Area.\nCONTRACTOR'S INITIALS\n/s/ M.A.\n5\nC.\nAcknowledgements of Contractor.\n(i)\nThe Contractor understands and acknowledges that any material violation of this Agreement shall constitute a material breach of\nthis Agreement, and it will cause irreparable harm and loss to the Company or any Affiliated Entity for which monetary damages\nwill be an insufficient remedy. Therefore, the Parties agree that in addition to any other remedies available, the Company and its\nAffiliated Entities will be entitled to the relief identified in Paragraph No. 7 below.\n(ii)\nThe Restrictive Covenants shall be construed as agreements independent of any other provision in this Agreement\n(iii) Contractor agrees that the Restrictive Covenants are reasonably necessary to protect the legitimate business interests of the\nCompany or any Affiliated Entity and to protect its Confidential Information.\n(iv)\nContractor agrees that this Agreement may be enforced by the Company's assignee or successor or any of the Affiliated Entities\nand Contractor acknowledges and agrees that assignees, successors and Affiliated Entities are intended beneficiaries of this\nAgreement.\n(v)\nContractor agrees that if any portion of the Restrictive Covenants are held by an arbitration panel or court of competent\njurisdiction to be unreasonable, arbitrary or against public policy for any reason, they shall be modified accordingly as to time,\ngeographic area and line of business so as to be enforceable to the fullest extent possible as to time, area and line of business.\n(vi)\nContractor agrees that any material violation of the Restrictive Covenants, in any capacity identified herein, are a material breach\nof this Agreement.\n(vii)\nContractor agrees that any failure of the Company or any Affiliated Entity to enforce the Restrictive Covenants against any other\nemployee or contractor, for any reason, shall not constitute a defense to enforcement of the Restrictive Covenants against the\nContractor.\n7. Specific Performance; Injunction. The Parties agree and acknowledge that the restrictions contained in Paragraphs 1-6 are reasonable in scope\nand duration and are necessary to protect the Company or any of its Affiliated Entities. If any provision of Paragraphs 1-6 as applied to any party or\nto any circumstance is adjudged by a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the validity or\nenforceability of any other provision of this Agreement. If any such provision, or any part thereof, is held to be unenforceable because of the\nduration of such provision or the area covered thereby, the Parties agree that the court making such determination shall have the power to reduce the\nduration and/or area of such provision, and/or to delete specific words or phrases, and in its reduced form, such provision shall then be enforceable\nand shall be enforced.\nAny material unauthorized use or disclosure of information in violation of Paragraphs 2-5 above or violation of the Restrictive Covenant in\nParagraph 6 shall constitute a material breach of this Agreement, may constitute misappropriation under California law, and may cause irreparable\nharm and loss to the Company or any of its Affiliated Entities for which monetary damages will be an insufficient remedy. Therefore, the Parties\nagree that in addition to any other remedy available, the Company or any of its Affiliated Entities may be entitled to all of available civil remedies,\nincluding:\na.\nTemporary and permanent injunctive relief, without being required to post a bond, restraining Contractor or Representatives and any\nother person, partnership, firm, corporation, association or other legal entity acting in concert with Contractor from any actual or\nthreatened unauthorized disclosure or use of Confidential Information, in whole or in part, or from rendering any service to any other\nperson, partnership, firm, corporation, association or other legal entity to whom such Confidential Information in whole or in part, has\nbeen disclosed or used or is threatened to be disclosed or used; and\nCONTRACTOR'S INITIALS\n/s/ M.A.\n6\nb.\nTemporary and permanent injunctive relief, without being required to post a bond, restraining the Contractor from violating, directly or\nindirectly, the restrictions of the Restrictive Covenant in any capacity identified in Paragraph 6, supra; and\nC.\nCompensatory damages, including actual loss from misappropriation and unjust enrichment. Contractor further agrees to pay any and all\nlegal fees, including without limitation, all attorneys' fees, court costs, and any other related fees and/or costs incurred by the Company\nin enforcing this Agreement.\nNotwithstanding the foregoing, the Company acknowledges and agrees that the Contractor will not be liable for the payment of any damages\nor fees owed to the Company through the operation of Paragraphs 9c above, unless and until a court of competent jurisdiction or arbitration panel\nhas determined that the Company or any of its assignees, successors or Affiliated Entities is entitled to such recovery.\nNothing in this Agreement shall be construed as prohibiting the Company or any Affiliated Entities from pursuing any other legal or equitable\nremedies available to it for actual or threatened breach of the provisions of Paragraphs 1 - 6 of this Agreement, and the existence of any claim or\ncause of action by Contractor against the Company or any of its Affiliated Entities may not constitute a defense to the enforcement by the Company\nor any of its Affiliated Entities of any of the provisions of this Agreement. The Company and its Affiliated Entities have fully performed all\nobligations entitling it to the covenants of Paragraphs 1 - 6 of this Agreement and therefore such prohibitions are not executory or otherwise subject\nto rejection under the bankruptcy code.\n8. Duty to Disclose Agreement. Contractor acknowledges that the Company has a legitimate business purpose in the protection of its Confidential\nInformation. Contractor also recognizes and agrees that the Company has the right to such information as is reasonably necessary to inform the\nCompany whether the terms of this Agreement are being complied with. Accordingly, Contractor agrees that Contractor will promptly notify any\nnew company that Contractor provides services to of his/her obligations contained here. Contractor also will provide the Company with the identity\nof the new company that he/she is providing services to and a description of the services being provided by him/her in sufficient detail to allow the\nCompany to reasonably determine whether such activities fall within the scope of activities prohibited by the provisions of this Agreement\n9.\nWaiver of Jury Trial. THE COMPANY AND CONTRACTOR EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION\nOR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY INSTRUMENT,\nDOCUMENT OR AGREEMENT DELIVERED IN CONNECTION HEREWITH OR HEREAFTER OR RELATED IN ANY FASHION\nTO THEIR RELATIONSHIP.\n10. Governing Law, Venue and Personal Jurisdiction. Notwithstanding anything to the contrary herein, this Agreement shall be governed by,\nconstrued and enforced in accordance with the laws of state of Florida without regard to any statutory or common-law provision pertaining to\nconflicts of laws. The parties agree that courts of competent jurisdiction in Lee County, Florida and the United States District Court for the Southern\nCONTRACTOR'S INITIALS\n/s/ M.A.\n7\nDistrict of Florida shall have concurrent jurisdiction for purposes of entering temporary, preliminary and permanent injunctive relief and with regard\nto any action arising out of any breach or alleged breach of this Agreement. Company waives personal service of any and all process upon Company\nand consents that all such service of process may be made by certified or registered mail directed to Company at the address stated in the signature\nsection of this Agreement, with service so made deemed to be completed upon actual receipt thereof. Company waives any objection to jurisdiction\nand venue of any action instituted against Company as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue.\nContractor further agrees that any action arising out of this Agreement or the relationship between the parties established herein shall be brought\nonly in courts of competent jurisdiction in Lee County, Florida or the United States District Court for the Southern District of Florida.\n11. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by\nContractor at any time. This Agreement may be assigned only by the Company to an Affiliated Entity and shall inure to the\nbenefit\nof\nits\nsuccessors\nand/or assigns.\n12. Entire Agreement. This Agreement is the entire agreement of the Parties with regard to the matters addressed herein, and supersedes all\nnegotiations, preliminary agreements, and all prior and contemporaneous discussions and understandings of the signatories in connection with the\nsubject matter of this Agreement, except however, that this Agreement shall be read in pari materia with the Medical Services Agreement and the\nWork Product Agreement. This Agreement may be modified only by written instrument signed by the Company and Contractor.\n13. Construction. The Parties agree that, notwithstanding the authorship of this Agreement by the Company, such Agreement shall not be construed\nmore favorably to one Party than the other.\n14. Severability. In case any one or more provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in\nany respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such\ninvalid, illegal were unenforceable provision had not been contained herein.\n15. Waiver. The waiver by the Company of a breach or threatened breach of this Agreement by Contractor cannot be construed as a waiver of any\nsubsequent breach by Contractor. The refusal or failure of the Company or any Affiliated Entity to enforce any specific restrictive covenant in this\nAgreement against Contractor, or any other person for any reason, shall not constitute a defense to the enforcement by the Company or any\nAffiliated Entity of any other restrictive covenant provision set forth in this Agreement.\n16. Consideration. Contractor expressly acknowledges and agrees that the execution by the Company of the Medical Services Agreement and the\ngranting of stock options and warrants to the Contractor constitutes full, adequate and sufficient consideration to Contractor for the covenants of\nContractor under this Agreement.\n17. Notices. All notices required by this Agreement shall be in writing, shall be personally delivered or sent by U.S. Registered or Certified Mail,\nreturn receipt requested, and shall be addressed to the signatories at the addresses shown on the signature page of this Agreement.\n18. Acknowledgements. Contractor acknowledge(s) that he has reviewed this Agreement prior to signing it, that he knows and understands the\ncontents, purposes and effect of this Agreement, and that he has been given a signed copy of this Agreement for her records. Contractor further\nacknowledges and agrees that he has entered into this Agreement freely, without any duress or coercion.\n19. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original for all intents and purposes.\nCONTRACTOR'S INITIALS\n/s/ M.A.\n8\nSignatures appear on the following page.\nCONTRACTOR'S INITIALS\n/s/ M.A.\n9\nIN WITNESS WHEREOF, THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND KNOW\nAND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY AGREE TO BE BOUND AND ABIDE BY THE REPRESENTATIONS,\nCOVENANTS, PROMISES AND WARRANTIES CONTAINED HEREIN.\nBy:\n/s/ Maher Albitar\n1/6/2012\nContractor Signature\nDate\nContractor Name:\nMaher Albitar, M.D.\nContractor Address:\nNeoGenomics Laboratories, Inc.\n12701 Commonwealth Drive, #5\nFort Myers, FL 33913\nBy:\n/s/ Maher Albitar, M.D.\n1/6/2012\nCompany Signature\nDate\nName: /s/ Steven Jones\nTitle: Executive Vice President, Finance\nCONTRACTOR'S INITIALS\n/s/ M.A.\n10	EX-10.3 6 d281487dex103.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.3\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Solicitation Agreement (the “Agreement”) dated this 6th day of January, 2012 is entered into by and between\nMaher Albitar, M.D., an individual who resides at the address set forth on the signature page hereof (“Contractor”) and NeoGenomics Laboratories,\nInc., a Florida corporation (“NeoGenomics” and collectively with NeoGenomics, Inc, a Nevada corporation, the NeoGenomics’ parent corporation,\nthe “Company”). Hereinafter, each of the Contractor or the Company maybe referred to as a “Party” and together be referred to as the “Parties”.\nRECITALS:\nWHEREAS, Contractor is a member of the Board of Directors of Health Discovery Corporation, a Georgia corporation, which specializes,\namong other things, in the field of discovering new proprietary methods for genetic and molecular laboratory testing; and\nWHEREAS, Health Discovery Corporation licensed its technology to NeoGenomics to commercialize certain cancer-related genetic and\nmolecular testing products and services pursuant to a licensing agreement; and\nWHEREAS, pursuant to such licensing agreement, Contractor agreed to provide full-time services to NeoGenomics in order to assist with\nsuch commercialization activities; and\nWHEREAS, NeoGenomics has appointed Contractor as its Chief Medical Officer; and\nWHEREAS, NeoGenomics and Albitar Oncology Consulting, LLC, a Delaware limited liability corporation solely owned by Contractor\n(“Medical Professional Corporation” or “MPC”), have entered into that certain Medical Services Agreement of even date herewith, which specifies\nhow NeoGenomics will work with MPC and Contractor, on a full-time basis to pursue business opportunities in the cancer-related genetic and\nmolecular testing market (the “Medical Services Agreement”) and that certain Confidentiality, Title To Work Product and Non-Solicit Agreement\nof even date herewith (the “Work Product Agreement”); and\nWHEREAS, Contractor will provide professional services to NeoGenomics through MPC and derive economic benefit from NeoGenomics\nthrough MPC; and\nWHEREAS, Contractor has also been awarded non-qualified stock options and warrants of the Company as part of the overall business\nrelationship with the Company; and\nWHEREAS, the Company will be providing MPC and Contractor with access to certain confidential and competitive information about\nNeoGenomics’ new product development plans, business and clients as part of the business arrangement with MPC; and\nWHEREAS, the Company desires to protect and preserve its Confidential Information and its legitimate business interests by having the\nContractor enter into this Agreement as part of the Medical Services Agreement; and\nWHEREAS, Contractor acknowledges that Company will disclose certain Company confidential and proprietary information, trade secrets\nand customer and supplier relationships and desires to establish and maintain a business relationship with the Company and as part of such business\nrelationship desires to enter into this Agreement with the Company.\nCONTRACTOR’S INITIALS\n/s/ M.A.\n1\nNow, therefore, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and sufficiency\nof which is hereby acknowledged by Contractor, the Parties agree as follows:\n1. Term. The parties agree that the term of this agreement is effective upon execution and shall survive and continue to be in force and effect for\ntwo years following the earlier of a) the termination of any employment or independent contractor relationship between the Contractor and the MPC,\nwhether termination is by the MPC with or without cause, wrongful discharge, or for any other reason whatsoever, or by the Contractor, b) the date\non which the Contractor ceases to be an equity owner of the MPC, or c) the termination of the Medical Services Agreement between the MPC and\nthe Company or any entity that is wholly or partially owned by the Company (all of such entities being hereinafter referred to as “Affiliated\nEntities”). The aforementioned period during which this Agreement will remain in effect shall hereinafter be referred to as the “Term”.\n2. Definitions.\na. The term “Confidential Information” as used herein shall include all business practices, methods, techniques, or processes that: (i) derives\nindependent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other\npersons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to\nmaintain its secrecy. Confidential Information also includes, but is not limited to, files, letters, memoranda, reports, records, computer disks or other\ncomputer storage medium, data, models or any photographic or other tangible materials containing such information, Customer lists and names and\nother information, Customer contracts, other corporate contracts, computer programs, proprietary technical information and or strategies, sales,\npromotional or marketing plans or strategies, programs, techniques, practices, any expansion plans (including existing and entry into new geographic\nand/or product markets), pricing information, product or service offering specifications or plans thereof, business plans, financial information and\nother financial plans, data pertaining to the Company’s operating performance, employee lists, salary information, Personal Information, Protected\nHealth Information, all information the Company receives from customers or other third parties that is not generally known to the public or is subject\nto a confidentiality agreement, training manuals, and other materials and business information of a similar nature, including information about the\nCompany itself or any Affiliated Entity, which Contractor acknowledges and agrees has been compiled by the Company’s expenditure of a great\namount of time, money and effort, and that contains detailed information that could not be created independently from public sources. Further, all\ndata, spreadsheets, reports, records, know-how, verbal communication, proprietary and technical information and/or other confidential materials of\nsimilar kind transmitted by the Company or any Affiliated Entity to Contractor or developed by the Contractor on behalf of the Company or any\nAffiliate Entity as Work Product (as defined in Paragraph 7) are expressly included within the definition of “Confidential Information.” The Parties\nfurther agree that the fact the Company or any Affiliated Entity may be seeking to complete a business transaction is “Confidential Information”\nwithin the meaning of this Agreement, as well as all notes, analysis, work product or other material derived from Confidential Information.\nNotwithstanding anything contained herein to the contrary, Confidential Information does not include any information which is generally known to\nthird parties in the industry.\nb. The term “Personal Information” (“PI”) is Confidential Information and includes, but is not limited to, an individual’s first name and last\nname or first initial and last name in combination with any of the following: an individual’s social security number, tax I.D . number, social insurance\nnumber, driver’s license number, state issued identification card number, financial information, healthcare information, or credit or debit card\nnumber.\nc. The term “Protected Health Information” (“PHI”) is Confidential Information and includes information that is created, received, and/or\nmaintained by the Company related to an individual’s health care (or payment related to health care) that directly or indirectly identifies the\nindividual.\nCONTRACTOR’S INITIALS\n/s/ M.A.\n2\nd. The term “Customer” shall mean any person or entity, the identity and contact information of which is kept confidential by the Company,\nwhich has purchased or ordered goods, products or services from the Company, entered into any contract for products or services with the Company,\nand/or entered into any contract for the distribution of any Products or services with the Company within the one (1) year immediately preceding a)\nthe termination of any employment or independent contractor relationship between the Contractor and the MPC, b) the date on which the Contractor\nceases to be an equity owner of the MPC, or c) the termination of the Medical Services Agreement between the MPC and the Company or any\nAffiliate Entity of the Company. Contractor acknowledges and agrees that the Company’s Customers, Customer relationships and Customer contact\ninformation have been compiled by the Company and will continue to be compiled by the Company at the expenditure of a great amount of time,\nmoney, expense and effort, and that the Company goes to considerable lengths and efforts to protect all such Customer information, and that such\ninformation is not readily available from public sources or known to third parties in the industry.\ne. The term “Prospective Customer” shall mean any person or entity, the identity and contact information of which is kept confidential by the\nCompany, which has evidenced an intention to engage in business to purchase or order goods, Products or services from the Company, has\nevidenced an intent to enter into any contract for Products or services with the Company, and/or has evidenced an intent to enter into any contract for\nthe distribution of any Products or services with the Company, (which such intention(s) shall be stated in writing) within the one (1) year\nimmediately preceding a) the termination of any employment or independent contractor relationship between the Contractor and the MPC, b) the\ndate on which the Contractor ceases to be an equity owner of the MPC, or c) the termination of the Medical Services Agreement between the MPC\nand the Company or any Affiliate Entity of the Company.\nf. The term “Restricted Area” shall include any geographical location anywhere in the United States. If the Restricted Area specified in this\nAgreement should be judged unreasonable in any proceeding, then the Restricted Area shall be reduced so that the restrictions may be enforced as is\njudged to be reasonable.\ng. The phrase “directly or indirectly” shall include the Contractor either on his/her own account, or as a partner, owner, promoter, joint\nventurer, employee, agent, consultant, advisor, manager, executive, independent contractor, officer, director, or a stockholder of 5% or more of the\nvoting shares of an entity in the Business of Company.\nh. The term “Business” shall mean the business of performing cancer-related research and development activities associated with genetic and\nmolecular laboratory testing and providing cancer-related genetic and molecular laboratory testing products and services for profit, including, but not\nlimited to, cytogenetics, flow cytometry, fluorescence in-situ hybridization (“FISH”), morphological studies, polymerase chain reaction (“PCR”)\ntesting, and other molecular testing, to hematologists, oncologists, urologists, pathologists, hospitals and other medical reference laboratories.\ni. The term “Full-time” should not exclude the contractor from continuing his work as a Director on the Board and a Consultant to Health\nDiscovery Corp (HDC) as long as this work is not cancer or hematology-related.\n3. Duty of Confidentiality.\na. All Confidential Information is considered highly sensitive and strictly confidential. The Contractor agrees that at all times during the term\nof this Agreement and after the termination of Medical Services Agreement for as long as such information remains non-public information, the\nContractor shall (i) hold in confidence and refrain from disclosing to any other party all Confidential Information, whether written or oral, tangible or\nintangible, concerning the Company or any Affiliated Entities and their business and operations unless such disclosure is accompanied by a non-\ndisclosure agreement executed by the Company with the party to whom such Confidential Information is provided, (ii) use the Confidential\nInformation solely in connection with his or her services to the Company or any Affiliated Entity and for no other purpose, (iii) take\nCONTRACTOR’S INITIALS\n/s/ M.A.\n3\nall precautions necessary to ensure that the Confidential Information shall not be, or be permitted to be, shown, copied or disclosed to third parties,\nwithout the prior written consent of the Company or any Affiliated Entity, (iv) observe all security policies implemented by the Company or any\nAffiliated Entity from time to time with respect to the Confidential Information, and (v) not use or disclose, directly or indirectly, as an individual or\nas a partner, joint venturer, employee, agent, salesman, contractor, officer, director or otherwise, for the benefit of himself or herself or any other\nperson, partnership, firm, corporation, association or other legal entity, any Confidential Information, unless expressly permitted by this Agreement.\nContractor agrees that protection of the Company’s and any Affiliated Entity’s Confidential Information constitutes a legitimate business interest\njustifying the restrictive covenants contained herein. Contractor further agrees that the restrictive covenants contained herein are reasonably\nnecessary to protect the Company’s and any Affiliated Entity’s legitimate business interest in preserving its Confidential Information. In addition,\nContractor will not view or access any PI or PHI unless required and authorized by the Company to do so. Contractor acknowledges that he/she shall\nbear all costs, losses and damages resulting from any intentional breach of this paragraph, to the fullest extent permitted by applicable law.\nb. In the event that the Contractor is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding or\notherwise, such disclosure shall be limited to the narrowest disclosure so required and, except to the extent prohibited by law, Contractor shall give\nthe Company or any Affiliated Entities at least two (2) weeks’ notice, if practicable, of the basis for any such compelled disclosure of Confidential\nInformation and shall reasonably cooperate with the Company or any Affiliated Entities in limiting disclosure and obtaining suitable confidentiality\nprotections.\nc. Contractor acknowledge(s) that this “Confidential Information” is of value to the Company and/or any Affiliated Entities by providing them\nwith a competitive advantage over their competitors, is not generally known to competitors of the Company, and is not intended by the Company or\nany Affiliated Entities for general dissemination. Contractor acknowledges that this “Confidential Information” derives independent economic value,\nactual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain\neconomic value from its disclosure or use, and is the subject of reasonable efforts to maintain its secrecy. Therefore, the Parties agree that all\n“Confidential Information” under this Agreement constitutes “Trade Secrets” under both Section 688.002 and Chapter 812 of the Florida Statutes\nand California’s Uniform Trade Secrets Act, Cal. Civ. Code section 3426 et seq.\n4. Limited Right of Disclosure. Except as otherwise permitted by this Agreement, Contractor shall limit disclosure of pertinent Confidential\nInformation to Contractor’s attorney, if any (“Representative(s)”), for the sole purpose of evaluating Contractor ’s relationship with the Company.\nContractor agrees to show this Agreement to any Representatives and Contractor agrees that Paragraph 3 of this Agreement shall bind all such\nRepresentative(s).\n5. Return of Company Property and Confidential Materials. All tangible property, including cell phones, laptop computers and other Company\npurchased property, as well as all Confidential Information, Customer and Prospective Customer information and property, provided to Contractor is\nthe exclusive property of the Company and/or its Affiliated Entities and must be returned to the Company and/or its Affiliated Entities in accordance\nwith the instructions of the Company and/or such Affiliated Entities either upon termination of the Medical Services Agreement or at such other time\nas is requested by the Company. Contractor agree(s) that upon the earlier of a) the termination of any employment or independent contractor\nrelationship between the Contractor and the MPC, b) the date on which the Contractor ceases to be an equity owner of the MPC, or c) the\ntermination of the Medical Services Agreement between the MPC and the Company or any Affiliate Entity of the Company, Contractor shall return\nall copies, in whatever form or media, including hard copies and electronic copies, of Confidential Information to the Company and/or the Affiliated\nEntity, and Contractor shall delete any copy of the Confidential Information on any computer file or database maintained by Contractor and, if\nrequested in writing, shall certify in writing that he/she has done so. In addition to returning all information to the Company and/or any Affiliated\nEntities as described above, Contractor will destroy any analysis, notes, work product or\nCONTRACTOR’S INITIALS\n/s/ M.A.\n4\nother materials relating to or derived from the Confidential Information. Any intentional or unauthorized retention of Confidential Information may\nconstitute “misappropriation” as such term is defined in both Chapter 772 of the Florida Statutes and Cal. Civ. Code section 3426.1(b).\n6. Restrictive Covenant. The Company and its Affiliated Entities are engaged in the business of performing cancer-related research and\ndevelopment activities associated with genetic and molecular laboratory testing and providing cancer-related genetic and molecular laboratory\ntesting products and services to oncologists, urologists, pathologists, physicians, hospitals, and other medical laboratories. The covenants contained\nin this Paragraph 8 (the “Restrictive Covenants”) are given and made by Contractor to induce the Company to enter into the Medical Services\nAgreement and to protect the Confidential Information of the Company, and Contractor acknowledges sufficiency of consideration for these\nRestrictive Covenants. Contractor expressly covenants and agrees that, during the time the Management Services Agreement is in effect between the\nMPC and the Company and for a period of two years following the earlier of a) the termination of any employment or independent contractor\nrelationship between the Contractor and the MPC, b) the date on which the Contractor ceases to be an equity owner of the MPC, or c) the\ntermination of the Medical Services Agreement between the MPC and the Company or any Affiliate Entity of the Company (such period of time is\nhereinafter referred to as the “Restrictive Period”), he will abide by the following restrictive covenants, unless an exception is specifically provided,\nin writing signed by Company.\na.\nThis Section Intentionally Left Blank.\nb. Non-Competition. Contractor agrees and acknowledges that, during the Restrictive Period, he will not, directly or indirectly, for\nhimself, or on behalf of others, as an individual on Contractor’s own account, or as a partner, joint venturer, employee, agent, salesman,\ncontractor, officer, director or otherwise, for him/herself or any other person, partnership, firm, corporation, association or other legal\nentity, enter into, engage in, accept employment from, or provide any competitive services to, or for, any business that is in the\nBusiness of the Company, or engage in any activity that is competitive with the Company, in the Restricted Area. The parties agree\nthat this non-competition provision is intended to cover situations where a future business opportunity in which the Contractor is\nengaged or a future employer of the Contractor is selling the same or similar products and services in a Business which may compete\nwith the Company’s products and services to Customers and Prospective Customers of the Company in the Restricted Area. This\nprovision shall not cover future business opportunities or employers of the Contractor that sell different types of products or services in\nthe Restricted Area so long as such future business opportunities or employers are not in the Business of the Company.\nNotwithstanding the preceding paragraphs, the spirit and intent of this non-competition clause is not to deny the Contractor the ability to\nsupport his or her family, but rather to prevent Contractor from using the knowledge and experiences obtained from the Company in a\nsimilar competitive environment. Along those lines, should the Contractor leave the employment of the MPC or the Medical Services\nAgreement between the MPC and the Company be terminated for any reason, he would be prohibited from joining a for-profit cancer\ngenetics testing laboratory and/or company in the Business of the Company in the Restricted Area. The Parties agree that all non-profit\nmedical testing laboratories, hospitals and academic institutions as well as for-profit testing laboratories not engaged in cancer genetics\nresearch and development or testing services are excluded from the restrictions in paragraph 8(b). In other words, Contractor would be\nallowed under this non-compete clause to work in any non-profit cancer genetics research and development or testing laboratory (e.g., in\nacademia) as well as in a private, for-profit testing laboratories not engaged in cancer genetics research and development or testing.\nThus, the spirit and intent of this non-competition clause is intended to prevent Contractor from acting in any of the capacities outlined in\nthis paragraph for any “for-profit” cancer genetics research and development or testing laboratories that do any one or more of the types\nof testing services defined in the definition of Business in the Restricted Area.\nCONTRACTOR’S INITIALS\n/s/ M.A.\n5\nc.\nAcknowledgements of Contractor.\n(i) The Contractor understands and acknowledges that any material violation of this Agreement shall constitute a material breach of\nthis Agreement, and it will cause irreparable harm and loss to the Company or any Affiliated Entity for which monetary damages\nwill be an insufficient remedy. Therefore, the Parties agree that in addition to any other remedies available, the Company and its\nAffiliated Entities will be entitled to the relief identified in Paragraph No. 7 below.\n(ii) The Restrictive Covenants shall be construed as agreements independent of any other provision in this Agreement\n(iii) Contractor agrees that the Restrictive Covenants are reasonably necessary to protect the legitimate business interests of the\nCompany or any Affiliated Entity and to protect its Confidential Information.\n(iv) Contractor agrees that this Agreement may be enforced by the Company’s assignee or successor or any of the Affiliated Entities\nand Contractor acknowledges and agrees that assignees, successors and Affiliated Entities are intended beneficiaries of this\nAgreement.\n(v) Contractor agrees that if any portion of the Restrictive Covenants are held by an arbitration panel or court of competent\njurisdiction to be unreasonable, arbitrary or against public policy for any reason, they shall be modified accordingly as to time,\ngeographic area and line of business so as to be enforceable to the fullest extent possible as to time, area and line of business.\n(vi) Contractor agrees that any material violation of the Restrictive Covenants, in any capacity identified herein, are a material breach\nof this Agreement.\n(vii) Contractor agrees that any failure of the Company or any Affiliated Entity to enforce the Restrictive Covenants against any other\nemployee or contractor, for any reason, shall not constitute a defense to enforcement of the Restrictive Covenants against the\nContractor.\n7. Specific Performance; Injunction. The Parties agree and acknowledge that the restrictions contained in Paragraphs 1-6 are reasonable in scope\nand duration and are necessary to protect the Company or any of its Affiliated Entities. If any provision of Paragraphs 1-6 as applied to any party or\nto any circumstance is adjudged by a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the validity or\nenforceability of any other provision of this Agreement. If any such provision, or any part thereof, is held to be unenforceable because of the\nduration of such provision or the area covered thereby, the Parties agree that the court making such determination shall have the power to reduce the\nduration and/or area of such provision, and/or to delete specific words or phrases, and in its reduced form, such provision shall then be enforceable\nand shall be enforced.\nAny material unauthorized use or disclosure of information in violation of Paragraphs 2-5 above or violation of the Restrictive Covenant in\nParagraph 6 shall constitute a material breach of this Agreement, may constitute misappropriation under California law, and may cause irreparable\nharm and loss to the Company or any of its Affiliated Entities for which monetary damages will be an insufficient remedy. Therefore, the Parties\nagree that in addition to any other remedy available, the Company or any of its Affiliated Entities may be entitled to all of available civil remedies,\nincluding:\na.\nTemporary and permanent injunctive relief, without being required to post a bond, restraining Contractor or Representatives and any\nother person, partnership, firm, corporation, association or other legal entity acting in concert with Contractor from any actual or\nthreatened unauthorized disclosure or use of Confidential Information, in whole or in part, or from rendering any service to any other\nperson, partnership, firm, corporation, association or other legal entity to whom such Confidential Information in whole or in part, has\nbeen disclosed or used or is threatened to be disclosed or used; and\nCONTRACTOR’S INITIALS\n/s/ M.A.\n6\nb. Temporary and permanent injunctive relief, without being required to post a bond, restraining the Contractor from violating, directly or\nindirectly, the restrictions of the Restrictive Covenant in any capacity identified in Paragraph 6, supra; and\nc.\nCompensatory damages, including actual loss from misappropriation and unjust enrichment. Contractor further agrees to pay any and all\nlegal fees, including without limitation, all attorneys’ fees, court costs, and any other related fees and/or costs incurred by the Company\nin enforcing this Agreement.\nNotwithstanding the foregoing, the Company acknowledges and agrees that the Contractor will not be liable for the payment of any damages\nor fees owed to the Company through the operation of Paragraphs 9c above, unless and until a court of competent jurisdiction or arbitration panel\nhas determined that the Company or any of its assignees, successors or Affiliated Entities is entitled to such recovery.\nNothing in this Agreement shall be construed as prohibiting the Company or any Affiliated Entities from pursuing any other legal or equitable\nremedies available to it for actual or threatened breach of the provisions of Paragraphs 1 – 6 of this Agreement, and the existence of any claim or\ncause of action by Contractor against the Company or any of its Affiliated Entities may not constitute a defense to the enforcement by the Company\nor any of its Affiliated Entities of any of the provisions of this Agreement. The Company and its Affiliated Entities have fully performed all\nobligations entitling it to the covenants of Paragraphs 1 – 6 of this Agreement and therefore such prohibitions are not executory or otherwise subject\nto rejection under the bankruptcy code.\n8. Duty to Disclose Agreement. Contractor acknowledges that the Company has a legitimate business purpose in the protection of its Confidential\nInformation. Contractor also recognizes and agrees that the Company has the right to such information as is reasonably necessary to inform the\nCompany whether the terms of this Agreement are being complied with. Accordingly, Contractor agrees that Contractor will promptly notify any\nnew company that Contractor provides services to of his/her obligations contained here. Contractor also will provide the Company with the identity\nof the new company that he/she is providing services to and a description of the services being provided by him/her in sufficient detail to allow the\nCompany to reasonably determine whether such activities fall within the scope of activities prohibited by the provisions of this Agreement\n9. Waiver of Jury Trial. THE COMPANY AND CONTRACTOR EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION\nOR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY INSTRUMENT,\nDOCUMENT OR AGREEMENT DELIVERED IN CONNECTION HEREWITH OR HEREAFTER OR RELATED IN ANY FASHION\nTO THEIR RELATIONSHIP.\n10. Governing Law, Venue and Personal Jurisdiction. Notwithstanding anything to the contrary herein, this Agreement shall be governed by,\nconstrued and enforced in accordance with the laws of state of Florida without regard to any statutory or common-law provision pertaining to\nconflicts of laws. The parties agree that courts of competent jurisdiction in Lee County, Florida and the United States District Court for the Southern\nCONTRACTOR’S INITIALS\n/s/ M.A.\n7\nDistrict of Florida shall have concurrent jurisdiction for purposes of entering temporary, preliminary and permanent injunctive relief and with regard\nto any action arising out of any breach or alleged breach of this Agreement. Company waives personal service of any and all process upon Company\nand consents that all such service of process may be made by certified or registered mail directed to Company at the address stated in the signature\nsection of this Agreement, with service so made deemed to be completed upon actual receipt thereof. Company waives any objection to jurisdiction\nand venue of any action instituted against Company as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue.\nContractor further agrees that any action arising out of this Agreement or the relationship between the parties established herein shall be brought\nonly in courts of competent jurisdiction in Lee County, Florida or the United States District Court for the Southern District of Florida.\n11. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by\nContractor at any time. This Agreement may be assigned only by the Company to an Affiliated Entity and shall inure to the benefit of its successors\nand/or assigns.\n12. Entire Agreement. This Agreement is the entire agreement of the Parties with regard to the matters addressed herein, and supersedes all\nnegotiations, preliminary agreements, and all prior and contemporaneous discussions and understandings of the signatories in connection with the\nsubject matter of this Agreement, except however, that this Agreement shall be read in pari materia with the Medical Services Agreement and the\nWork Product Agreement. This Agreement may be modified only by written instrument signed by the Company and Contractor.\n13. Construction. The Parties agree that, notwithstanding the authorship of this Agreement by the Company, such Agreement shall not be construed\nmore favorably to one Party than the other.\n14. Severability. In case any one or more provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in\nany respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such\ninvalid, illegal were unenforceable provision had not been contained herein.\n15. Waiver. The waiver by the Company of a breach or threatened breach of this Agreement by Contractor cannot be construed as a waiver of any\nsubsequent breach by Contractor. The refusal or failure of the Company or any Affiliated Entity to enforce any specific restrictive covenant in this\nAgreement against Contractor, or any other person for any reason, shall not constitute a defense to the enforcement by the Company or any\nAffiliated Entity of any other restrictive covenant provision set forth in this Agreement.\n16. Consideration. Contractor expressly acknowledges and agrees that the execution by the Company of the Medical Services Agreement and the\ngranting of stock options and warrants to the Contractor constitutes full, adequate and sufficient consideration to Contractor for the covenants of\nContractor under this Agreement.\n17. Notices. All notices required by this Agreement shall be in writing, shall be personally delivered or sent by U.S. Registered or Certified Mail,\nreturn receipt requested, and shall be addressed to the signatories at the addresses shown on the signature page of this Agreement.\n18. Acknowledgements. Contractor acknowledge(s) that he has reviewed this Agreement prior to signing it, that he knows and understands the\ncontents, purposes and effect of this Agreement, and that he has been given a signed copy of this Agreement for her records. Contractor further\nacknowledges and agrees that he has entered into this Agreement freely, without any duress or coercion.\n19. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original for all intents and purposes.\nCONTRACTOR’S INITIALS\n/s/ M.A.\n8\nSignatures appear on the following page.\nCONTRACTOR’S INITIALS\n/s/ M.A.\n9\nIN WITNESS WHEREOF, THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND KNOW\nAND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY AGREE TO BE BOUND AND ABIDE BY THE REPRESENTATIONS,\nCOVENANTS, PROMISES AND WARRANTIES CONTAINED HEREIN.\nBy:\n/s/ Maher Albitar\n1/6/2012\nContractor Signature\nDate\nContractor Name:\nMaher Albitar, M.D.\nContractor Address:\nNeoGenomics Laboratories, Inc.\n12701 Commonwealth Drive, #5\nFort Myers, FL 33913\nBy:\n/s/ Maher Albitar, M.D .\n1/6/2012\nCompany Signature\nDate\nName: /s/ Steven Jones\nTitle: Executive Vice President, Finance\nCONTRACTOR’S INITIALS\n/s/ M.A.\n10
+03efbda01358533c167ca9b1e6d72051.pdf	effective_date jurisdiction party term	EX-10.26 26 ex10-26.txt NON-CIRCUMVENTION AND NON-DISCLOSURE AGREEMENT 1 NON-\nCIRCUMVENTION AND NON-DISCLOSURE AGREEMENT This Non-Circumvention and Non-Disclosure\nAgreement (hereinafter referred to as the "Agreement" is made this 6th of February, 1999 by and between High Speed\nNet Solutions and R. J. Seifert Enterprises. Collectively, all the parties hereto may be referred to hereinafter as the\n"Parties", shall include both disclosing party and informed party without prejudice. Whereas, the Parties wish to\nassociate themselves for the purpose of working together for their individual and common benefit. Now, therefore, in\nconsideration of the representations, agreements, promises and covenants contained herein and other good and valuable\nconsideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. The Parties\nagree to abide by the following rules of non-circumvention and non-disclosure for a period of Two years from the\neffective date hereof. Such covenant and agreement shall survive termination of this Agreement for any reason\nwhatsoever. a) Each Party, for itself and its associates as defined below, represents and warrants that it shall not conduct\nbusiness with any sources or contacts, or said source's or contact's associates as defined below, that are originally made\nknown and/or available by another Party hereto, at any time or in any manner, without the express written permission\n(not to be unreasonably withheld) of the Party who made the source(s) known and/or available. b) For purposes of this\nAgreement, the term "associates" or "contacts" shall be defined as: in the case of a business entity its officers, directors,\naffiliates, subsidiaries, associated entities, and any other business entity in which the business entity owns five percent\n(5%) or more of the outstanding equity interest. c) The Parties will maintain complete confidentiality regarding this\nAgreement and all transactions occurring thereunder, each other's business, business sources and affiliates and each\nother's propriety knowledge and know-how, and will disclose such information only pursuant to the express written\npermission of the party who made such information available save where such information deemed to be in the public\ndomain or under the order of a competent Court or Government Agency. d) This Agreement and each additional\nagreement concluded or written or verbal disclosure made between the Parties, shall be kept confidential and is not to be\nreproduced, communicated or distributed in any manner whatsoever except on a "need to know" basis to persons directly\ninvolved with the closing of any transaction contemplated between the Parties, or legal counsel of a Party. e) It is\nunderstood and agreed that by reason of this "Agreement" the "Parties" that are involved during the course of business\ntransactions may learn from one another, or from the 2 principals the names, addresses, telephone numbers of lenders,\nagents, brokers, clients or others hereafter referred to as "Contracts" and or "Associates". f) It is understood and agreed\nthat the "Contracts" of each party hereto are and shall be recognized as exclusive and valuable "Contracts" and that the\nparties will not directly or indirectly negotiate or participate in any transaction circumventing the party who first\nprovided the "Contract". 2. The Agreement is valid and effective for all purposes, business, communications,\nnegotiations, disclosures and transactions of whatever nature between the Parties for a period of two (2) years from the\neffective date hereof. 3. Each Party represents, warrants and covenants that all information furnished by said party, or to\nbe furnished by said Party, or to any other Party or Parties hereto is, or will be, true, complete, correct and accurate to\nbest of said Party's knowledge, ability and belief. 4. In the event of circumvention by the "Parties" involved in this\ntransaction, either directly or indirectly, it is agreed and guaranteed that a monetary penalty will be paid by the person or\npersons engaged in or circumvention. This payment will additionally include all reasonable legal expenses incurred by\nthe aggrieved party. 5. This Agreement contains the entire and complete understanding existing between the Parties of\nthe date of its execution regarding the subject matters contained herein, and all former representations, promises or\ncovenants, whether written or verbal, are null and void. 6. This Agreement may be modified only by written agreement\nduly executed by all Parties hereto. 7. This Agreement shall be binding upon, and inure to the benefit of the heirs, legal\nrepresentatives, successors, designees, and/or assigns of the Parties. The executor, administrator, or personal\nrepresentative of a deceased party shall execute and deliver any document(s) or legal instrument(s) necessary or\ndesirable to carry out the provisions hereof. 8. Any written notice required or allowed to be given hereunder shall be\ndeemed to have been duly and properly given and delivered (a) as of the date actually hand delivered to the Party to be\ncharged with receipt. 9. Any copy of this Agreement, or any other documents executed and/or signed by any of the\nParties hereto, and sent to another Party hereto by facsimile transmission carries the full force and effect as if it were the\nhand delivered original. 10. This Agreement was negotiated and prepared jointly by all Parties hereto, and each Party\nacknowledges that they have had ample opportunity to consult legal, financial and other counsel 2 3 concerning all\naspects, terms and condition of this Agreement. This Agreement may be executed in multiple counterpart copies, each of\nwhich shall be deemed a duplicate original. 11. No party shall be considered or adjudged to be in violation of this\nAgreement when the violation is due to situations beyond the said party's control, such as acts of God, civil disturbances,\ntheft, or said Party's connections having prior knowledge or possession of privileged information, contacts, or contacts\nwithout the disclosure, intervention or assistance of said party or aid Parties associates as defined herein. Essentially, the\nspirit behind this Agreement is one of mutual trust, confidence and reliance upon each party to do what is fair and\nequitable. 12. This Agreement is a full recourse agreement concluded under the laws of Pennsylvania and said forum\nshall be applicable law covering the construction, interpretation, execution, validity, enforceability, performance, and any\nother such matters in respect to this Agreement, including any breach or claim of breach hereof. 13. This Agreement\nshall be governed by law and construed to be in accordance with the laws of the State of Pennsylvania applicable to\ncontracts made and to be performed solely in such State by parties thereof. Any dispute arising out of this Agreement\nshall be adjudicated in arbitration under the rules of the American Arbitration Association. The prevailing party in any\ndispute shall be reimbursed reasonable attorneys fees. IN WITNESS WHEREOF, THE "PARTIES" HERETO HAVE\nEXECUTED THIS "AGREEMENT" ON THE DATES SET FORTH BELOW. Agreed, executed and acknowledged on\n2/9/99, 1999 /s/ Michael M. Cimino ------------------------------------------- Mike Cimino for High Speed Net Solutions /s/\nRichard Seifert 02/08/99 ------------------------------------------- Richard Seifert for R J Seifert Enterprises 3	EX-10.26 26 ex10-26.txt NON-CIRCUMVENTION AND NON-DISCLOSURE AGREEMENT 1 NON-\nCIRCUMVENTION AND NON-DISCLOSURE AGREEMENT This Non-Circumvention and Non-Disclosure\nAgreement (hereinafter referred to as the "Agreement" is made this 6th of February, 1999 by and between High Speed\nNet Solutions and R. J. Seifert Enterprises. Collectively, all the parties hereto may be referred to hereinafter as the\n"Parties", shall include both disclosing party and informed party without prejudice. Whereas, the Parties wish to\nassociate themselves for the purpose of working together for their individual and common benefit. Now, therefore, in\nconsideration of the representations, agreements, promises and covenants contained herein and other good and valuable\nconsideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. The Parties\nagree to abide by the following rules of non-circumvention and non-disclosure for a period of Two years from the\neffective date hereof. Such covenant and agreement shall survive termination of this Agreement for any reason\nwhatsoever. a) Each Party, for itself and its associates as defined below, represents and warrants that it shall not conduct\nbusiness with any sources or contacts, or said source's or contact's associates as defined below, that are originally made\nknown and/or available by another Party hereto, at any time or in any manner, without the express written permission\n(not to be unreasonably withheld) of the Party who made the source(s) known and/or available. b) For purposes of this\nAgreement, the term "associates" or "contacts" shall be defined as: in the case of a business entity its officers, directors,\naffiliates, subsidiaries, associated entities, and any other business entity in which the business entity owns five percent\n(5%) or more of the outstanding equity interest. c) The Parties will maintain complete confidentiality regarding this\nAgreement and all transactions occurring thereunder, each other's business, business sources and affiliates and each\nother's propriety knowledge and know-how, and will disclose such information only pursuant to the express written\npermission of the party who made such information available save where such information deemed to be in the public\ndomain or under the order of a competent Court or Government Agency. d) This Agreement and each additional\nagreement concluded or written or verbal disclosure made between the Parties, shall be kept confidential and is not to be\nreproduced, communicated or distributed in any manner whatsoever except on a "need to know" basis to persons directly\ninvolved with the closing of any transaction contemplated between the Parties, or legal counsel of a Party. e) It is\nunderstood and agreed that by reason of this "Agreement" the "Parties" that are involved during the course of business\ntransactions may learn from one another, or from the 2 principals the names, addresses, telephone numbers of lenders,\nagents, brokers, clients or others hereafter referred to as "Contracts" and or "Associates". f) It is understood and agreed\nthat the "Contracts" of each party hereto are and shall be recognized as exclusive and valuable "Contracts" and that the\nparties will not directly or indirectly negotiate or participate in any transaction circumventing the party who first\nprovided the "Contract". 2. The Agreement is valid and effective for all purposes, business, communications,\nnegotiations, disclosures and transactions of whatever nature between the Parties for a period of two (2) years from the\neffective date hereof. 3. Each Party represents, warrants and covenants that all information furnished by said party, or to\nbe furnished by said Party, or to any other Party or Parties hereto is, or will be, true, complete, correct and accurate to\nbest of said Party's knowledge, ability and belief. 4. In the event of circumvention by the "Parties" involved in this\ntransaction, either directly or indirectly, it is agreed and guaranteed that a monetary penalty will be paid by the person or\npersons engaged in or circumvention. This payment will additionally include all reasonable legal expenses incurred by\nthe aggrieved party. 5. This Agreement contains the entire and complete understanding existing between the Parties of\nthe date of its execution regarding the subject matters contained herein, and all former representations, promises or\ncovenants, whether written or verbal, are null and void. 6. This Agreement may be modified only by written agreement\nduly executed by all Parties hereto. 7. This Agreement shall be binding upon, and inure to the benefit of the heirs, legal\nrepresentatives, successors, designees, and/or assigns of the Parties. The executor, administrator, or personal\nrepresentative of a deceased party shall execute and deliver any document(s) or legal instrument(s) necessary or\ndesirable to carry out the provisions hereof. 8. Any written notice required or allowed to be given hereunder shall be\ndeemed to have been duly and properly given and delivered (a) as of the date actually hand delivered to the Party to be\ncharged with receipt. 9. Any copy of this Agreement, or any other documents executed and/or signed by any of the\nParties hereto, and sent to another Party hereto by facsimile transmission carries the full force and effect as if it were the\nhand delivered original. 10. This Agreement was negotiated and prepared jointly by all Parties hereto, and each Party\nacknowledges that they have had ample opportunity to consult legal, financial and other counsel 2 3 concerning all\naspects, terms and condition of this Agreement. This Agreement may be executed in multiple counterpart copies, each of\nwhich shall be deemed a duplicate original. 11. No party shall be considered or adjudged to be in violation of this\nAgreement when the violation is due to situations beyond the said party's control, such as acts of God, civil disturbances,\ntheft, or said Party's connections having prior knowledge or possession of privileged information, contacts, or contacts\nwithout the disclosure, intervention or assistance of said party or aid Parties associates as defined herein. Essentially, the\nspirit behind this Agreement is one of mutual trust, confidence and reliance upon each party to do what is fair and\nequitable. 12. This Agreement is a full recourse agreement concluded under the laws of Pennsylvania and said forum\nshall be applicable law covering the construction, interpretation, execution, validity, enforceability, performance, and any\nother such matters in respect to this Agreement, including any breach or claim of breach hereof. 13. This Agreement\nshall be governed by law and construed to be in accordance with the laws of the State of Pennsylvania applicable to\ncontracts made and to be performed solely in such State by parties thereof. Any dispute arising out of this Agreement\nshall be adjudicated in arbitration under the rules of the American Arbitration Association. The prevailing party in any\ndispute shall be reimbursed reasonable attorneys fees. IN WITNESS WHEREOF, THE "PARTIES" HERETO HAVE\nEXECUTED THIS "AGREEMENT" ON THE DATES SET FORTH BELOW. Agreed, executed and acknowledged on\n2/9/99, 1999 /s/ Michael M. Cimino ------==-=====mmmmmmmmm oo Mike Cimino for High Speed Net Solutions /s/\nRichard Seifert 02/08/99 -----==-=mm=mmmmm oo Richard Seifert for R J Seifert Enterprises 3	EX-10.26 26 x10-26.txt NON-CIRCUMVENTION AND NON-DISCLOSURE AGREEMENT 1 NON-\nCIRCUMVENTION AND NON-DISCLOSURE AGREEMENT This Non-Circumvention and Non-Disclosure\nAgreement (hereinafter referred to as the "Agreement" is made this 6th of February, 1999 by and between High Speed\nNet Solutions and R. J. Seifert Enterprises. Collectively, all the parties hereto may be referred to hereinafter as the\n"Parties", shall include both disclosing party and informed party without prejudice. Whereas, the Parties wish to\nassociate themselves for the purpose of working together for their individual and common benefit. Now, therefore,\nin\nconsideration of the representations, agreements, promises and covenants contained herein and other good and valuable\nconsideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. The Parties\nagree to abide by the following rules of non-circumvention and non-disclosure for a period of Two years from\nthe\neffective date hereof. Such covenant and agreement shall survive termination of this Agreement for any reason\nwhatsoever. a) Each Party, for itself and its associates as defined below, represents and warrants that it shall not conduct\nbusiness with any sources or contacts, or said source's or contact's associates as defined below, that are originally made\nknown\nand/or\navailable\nby\nanother\nParty\nhereto,\nat\nany\ntime\nor\nin\nany\nmanner,\nwithout\nthe\nexpress\nwritten\npermission\n(not to be unreasonably withheld) of the Party who made the source(s) known and/or available. b) For purposes of this\nAgreement, the term "associates" or "contacts" shall be defined as: in the case of a business entity its officers, directors,\naffiliates subsidiaries, associated entities, and any other business entity in which the business entity owns five percent\n(5%) or more of the outstanding equity interest. c) The Parties will maintain complete confidentiality regarding this\nAgreement and all transactions occurring thereunder, each other's business, business sources and affiliates and each\nother's propriety knowledge and know-how, and will disclose such information only pursuant to the express written\npermission of the party who made such information available save where such information deemed to be in the public\ndomain or under the order of a competent Court or Government Agency. d) This Agreement and each additional\nagreement concluded or written or verbal disclosure made between the Parties, shall be kept confidential and is not to be\nreproduced, communicated or distributed in any manner whatsoever except on a "need to know" basis to persons directly\ninvolved with the closing of any transaction contemplated between the Parties, or legal counsel of a Party. e) It is\nunderstood and agreed that by reason of this "Agreement" the "Parties" that are involved during the course of business\ntransactions may learn from one another, or from the 2 principals the names, addresses, telephone numbers of lenders,\nagents, brokers, clients or others hereafter referred to as "Contracts" and or "Associates". f) It is understood and agreed\nthat the "Contracts" of each party hereto are and shall be recognized as exclusive and valuable "Contracts" and that the\nparties will not directly or indirectly negotiate or participate in any transaction circumventing the party who first\nprovided the "Contract". 2. The Agreement is valid and effective for all purposes, business, communications,\nnegotiations, disclosures and transactions of whatever nature between the Parties for a period of two (2) years\nfrom\nthe\neffective date hereof 3. Each Party represents, warrants and covenants that all information furnished by said party, or to\nbe furnished by said Party, or to any other Party or Parties hereto is, or will be, true, complete, correct and accurate to\nbest of said Party's knowledge, ability and belief. 4. In the event of circumvention by the "Parties" involved in this\ntransaction, either directly or indirectly, it is agreed and guaranteed that a monetary penalty will be paid by the person or\npersons\nengaged in or circumvention. This payment will additionally include all reasonable legal expenses incurred by\nthe aggrieved party. 5. This Agreement contains the entire and complete understanding existing between the Parties of\nthe date of its execution regarding the subject matters contained herein, and all former representations promises or\ncovenants, whether written or verbal, are null and void. 6. This Agreement may be modified only by written agreement\nduly executed by all Parties hereto. 7. This Agreement shall be binding upon, and inure to the benefit of the heirs, legal\nrepresentatives, successors, designees, and/or assigns of the Parties. The executor, administrator, or personal\nrepresentative of a deceased party shall execute and deliver any document(s) or legal instrument(s) necessary\nor\ndesirable to carry out the provisions hereof. 8. Any written notice required or allowed to be given hereunder shall be\ndeemed to have been duly and properly given and delivered (a) as of the date actually hand delivered to the Party to be\ncharged with receipt. 9. Any copy of this Agreement, or any other documents executed and/or signed by any of the\nParties hereto, and sent to another Party hereto by facsimile transmission carries the full force and effect as if it were\nthe\nhand delivered original. 10. This Agreement was negotiated and prepared jointly by all Parties hereto, and each Party\nacknowledges that they have had ample opportunity to consult legal, financial and other counsel 2 3 concerning all\naspects,\nterms\nand\ncondition\nof\nthis\nAgreement.\nThis\nAgreement\nmay\nbe\nexecuted\nin\nmultiple\ncounterpart\ncopies,\neach\nof\nwhich shall be deemed a duplicate original. 11. No party shall be considered or adjudged to be in violation of this\nAgreement when the violation is due to situations beyond the said party's control, such as acts of God, civil disturbances,\ntheft, or said Party's connections having prior knowledge or possession of privileged information, contacts, or contacts\nwithout the disclosure, intervention or assistance of said party or aid Parties associates as defined herein. Essentially, the\nspirit behind this Agreement is one of mutual trust, confidence and reliance upon each party to do what is fair and\nequitable. 12. This Agreement is a full recourse agreement concluded under the laws of Pennsylvania and said forum\nshall be applicable law covering the construction, interpretation, execution, validity, enforceability, performance,\nand\nany\nother such matters in respect to this Agreement, including any breach or claim of breach hereof. 13. This Agreement\nshall be governed by law and construed to be in accordance with the laws of the State of Pennsylvania applicable to\ncontracts made and to be performed solely in such State by parties thereof. Any dispute arising out of this Agreement\nshall be adjudicated in arbitration under the rules of the American Arbitration Association. The prevailing party in any\ndispute shall be reimbursed reasonable attorneys fees. IN WITNESS WHEREOF, THE "PARTIES" HERETO HAVE\nEXECUTED THIS "AGREEMENT" ON THE DATES SET FORTH BELOW. Agreed, executed and acknowledged on\n2/9/99, 1999 /s/ Michael M. Cimino\nMike Cimino for High Speed Net Solutions /s/\nRichard Seifert 02/08/99\nRichard Seifert for R J Seifert Enterprises 3	EX-10.26 26 ex10-26.txt NON-CIRCUMVENTION AND NON-DISCLOSURE AGREEMENT 1 NON-\nCIRCUMVENTION AND NON-DISCLOSURE AGREEMENT This Non-Circumvention and Non-Disclosure\nAgreement (hereinafter referred to as the "Agreement" is made this 6th of February, 1999 by and between High Speed\nNet Solutions and R. J. Seifert Enterprises. Collectively, all the parties hereto may be referred to hereinafter as the\n"Parties", shall include both disclosing party and informed party without prejudice. Whereas, the Parties wish to\nassociate themselves for the purpose of working together for their individual and common benefit. Now, therefore, in\nconsideration of the representations, agreements, promises and covenants contained herein and other good and valuable\nconsideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. The Parties\nagree to abide by the following rules of non-circumvention and non-disclosure for a period of Two years from the\neffective date hereof. Such covenant and agreement shall survive termination of this Agreement for any reason\nwhatsoever. a) Each Party, for itself and its associates as defined below, represents and warrants that it shall not conduct\nbusiness with any sources or contacts, or said source's or contact's associates as defined below, that are originally made\nknown and/or available by another Party hereto, at any time or in any manner, without the express written permission\n(not to be unreasonably withheld) of the Party who made the source(s) known and/or available. b) For purposes of this\nAgreement, the term "associates" or "contacts" shall be defined as: in the case of a business entity its officers, directors,\naffiliates, subsidiaries, associated entities, and any other business entity in which the business entity owns five percent\n(5%) or more of the outstanding equity interest. c) The Parties will maintain complete confidentiality regarding this\nAgreement and all transactions occurring thereunder, each other's business, business sources and affiliates and each\nother's propriety knowledge and know-how, and will disclose such information only pursuant to the express written\npermission of the party who made such information available save where such information deemed to be in the public\ndomain or under the order of a competent Court or Government Agency. d) This Agreement and each additional\nagreement concluded or written or verbal disclosure made between the Parties, shall be kept confidential and is not to be\nreproduced, communicated or distributed in any manner whatsoever except on a "need to know" basis to persons directly\ninvolved with the closing of any transaction contemplated between the Parties, or legal counsel of a Party. e) It is\nunderstood and agreed that by reason of this "Agreement" the "Parties" that are involved during the course of business\ntransactions may learn from one another, or from the 2 principals the names, addresses, telephone numbers of lenders,\nagents, brokers, clients or others hereafter referred to as "Contracts" and or "Associates". f) It is understood and agreed\nthat the "Contracts" of each party hereto are and shall be recognized as exclusive and valuable "Contracts" and that the\nparties will not directly or indirectly negotiate or participate in any transaction circumventing the party who first\nprovided the "Contract". 2. The Agreement is valid and effective for all purposes, business, communications,\nnegotiations, disclosures and transactions of whatever nature between the Parties for a period of two (2) years from the\neffective date hereof. 3. Each Party represents, warrants and covenants that all information furnished by said party, or to\nbe furnished by said Party, or to any other Party or Parties hereto is, or will be, true, complete, correct and accurate to\nbest of said Party's knowledge, ability and belief. 4. In the event of circumvention by the "Parties" involved in this\ntransaction, either directly or indirectly, it is agreed and guaranteed that a monetary penalty will be paid by the person or\npersons engaged in or circumvention. This payment will additionally include all reasonable legal expenses incurred by\nthe aggrieved party. 5. This Agreement contains the entire and complete understanding existing between the Parties of\nthe date of its execution regarding the subject matters contained herein, and all former representations, promises or\ncovenants, whether written or verbal, are null and void. 6. This Agreement may be modified only by written agreement\nduly executed by all Parties hereto. 7. This Agreement shall be binding upon, and inure to the benefit of the heirs, legal\nrepresentatives, successors, designees, and/or assigns of the Parties. The executor, administrator, or personal\nrepresentative of a deceased party shall execute and deliver any document(s) or legal instrument(s) necessary or\ndesirable to carry out the provisions hereof. 8. Any written notice required or allowed to be given hereunder shall be\ndeemed to have been duly and properly given and delivered (a) as of the date actually hand delivered to the Party to be\ncharged with receipt. 9. Any copy of this Agreement, or any other documents executed and/or signed by any of the\nParties hereto, and sent to another Party hereto by facsimile transmission carries the full force and effect as if it were the\nhand delivered original. 10. This Agreement was negotiated and prepared jointly by all Parties hereto, and each Party\nacknowledges that they have had ample opportunity to consult legal, financial and other counsel 2 3 concerning all\naspects, terms and condition of this Agreement. This Agreement may be executed in multiple counterpart copies, each of\nwhich shall be deemed a duplicate original. 11. No party shall be considered or adjudged to be in violation of this\nAgreement when the violation is due to situations beyond the said party's control, such as acts of God, civil disturbances,\ntheft, or said Party's connections having prior knowledge or possession of privileged information, contacts, or contacts\nwithout the disclosure, intervention or assistance of said party or aid Parties associates as defined herein. Essentially, the\nspirit behind this Agreement is one of mutual trust, confidence and reliance upon each party to do what is fair and\nequitable. 12. This Agreement is a full recourse agreement concluded under the laws of Pennsylvania and said forum\nshall be applicable law covering the construction, interpretation, execution, validity, enforceability, performance, and any\nother such matters in respect to this Agreement, including any breach or claim of breach hereof. 13. This Agreement\nshall be governed by law and construed to be in accordance with the laws of the State of Pennsylvania applicable to\ncontracts made and to be performed solely in such State by parties thereof. Any dispute arising out of this Agreement\nshall be adjudicated in arbitration under the rules of the American Arbitration Association. The prevailing party in any\ndispute shall be reimbursed reasonable attorneys fees. IN WITNESS WHEREOF, THE "PARTIES" HERETO HAVE\nEXECUTED THIS "AGREEMENT" ON THE DATES SET FORTH BELOW. Agreed, executed and acknowledged on\n2/9/99, 1999 /s/ Michael M. Cimino ------------------------------------------- Mike Cimino for High Speed Net Solutions /s/\nRichard Seifert 02/08/99 ------------------------------------------- Richard Seifert for R J Seifert Enterprises 3
+03fd0e629b617da00c54794a8a78b24d.pdf	effective_date jurisdiction party term	EX-7.5 2 dex75.htm AMENDED AND RESTATED CONFIDENTIALITY AGREEMENT\nExhibit 7.5\nExecution Version\nAMENDED AND RESTATED CONFIDENTIALITY AGREEMENT\nThis Amended and Restated Confidentiality Agreement dated as of July 13, 2011 (the “Agreement”), is entered into between 99¢ Only\nStores, a California corporation (the “Company”), and Leonard Green & Partners, L.P., a Limited Partnership (“Counterparty”). Each of the\nCompany and Counterparty are referred to herein as a “Party.”\nRECITALS\nA. Counterparty is evaluating, together with certain members of the Gold family and the Company’s CEO, a possible negotiated\ntransaction (a “Possible Transaction”) involving the Company, and has requested access to certain information concerning the Company.\nB. The Company requires, as a condition to providing such information to Counterparty or its Representatives, that any information\nprovided by it or on its behalf to Counterparty or its Representatives shall be kept strictly confidential, and that Counterparty agrees to certain other\nrestrictions and agreements, all as set forth herein.\nC. Counterparty and the Company on January 27, 2011 entered into a Confidentiality Agreement (the “Original Confidentiality\nAgreement”). Counterparty and the Company have agreed to certain modifications of the Original Confidentiality Agreement and wish to amend and\nrestate the Original Confidentiality Agreement in its entirety to reflect such modifications.\nNOW, THEREFORE, in consideration of the foregoing recitals and the agreements contained herein, and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:\nARTICLE 1\nDEFINITIONS\nSection 1.1 Certain Defined Terms. For purposes of this Agreement, the following terms shall have the following meanings:\n(a) “Affiliate” of a specified person shall mean any corporation or other person or entity that directly or indirectly, through one or more\nintermediaries, controls, is controlled by, or is under common control with the person specified. The term “control” means the possession, direct or\nindirect, of the power to direct or cause the direction of the management and policies of a person or entity.\n(b) “Representatives” means a Party’s officers, directors, employees, legal counsel, financial advisors, debt financing sources (subject to\nSection 2.8) and, in the case of\nCounterparty, any consultant to Counterparty who has been pre-approved in writing by the Company.\n(c) “Restriction Period” means the period commencing on January 27, 2011 and ending on the date that is 18 months from January 27,\n2011.\n(d) “Review Material” means any and all information, data, and analyses, whether written or oral, and any and all documents and\nmaterials, furnished or made available by the Company or its Representatives to Counterparty or its Representatives relating to a Possible\nTransaction or in connection with the consideration of a Possible Transaction or otherwise relating to the Company or its business, operations,\nprospects, assets or liabilities, and any and all analyses, compilations, studies, documents, or other material prepared by Counterparty or its\nRepresentatives containing or based in whole or in part upon such information, data, and analyses, documents, and materials (“Counterparty\nMaterials”), but does not include information, data, analyses, documents, or materials that (i) is when furnished or thereafter becomes available to\nthe public other than as a result of a disclosure by Counterparty or its Representatives, or (ii) is already in the possession of or becomes available to\nCounterparty or its Representatives on a non-confidential basis from a source other than the Company, any of its Affiliates, or any of its or its\nAffiliates’ Representatives, provided that, to the knowledge of Counterparty, such source is in lawful possession of such information, data, analyses,\ndocuments or materials and is not and was not bound by an obligation of confidentiality to the Company, any of its Affiliates, or any of its or its\nAffiliates’ Representatives, or (iii) Counterparty can demonstrate has been independently developed by it or its Representatives without a violation\nof this Agreement.\nARTICLE 2\nCONFIDENTIALITY\nSection 2.1 Confidentiality Obligation. Except as otherwise contemplated in Section 2.2, Counterparty shall, and shall cause its\nRepresentatives to, (a) keep strictly confidential and use its best efforts to protect against and prevent the disclosure of (i) the fact that the Parties\nhave entered into this Agreement and/or that the Company may or has provided information hereunder, (ii) the fact that discussions or negotiations\nare taking place or have taken place, if any take place, concerning a Possible Transaction, (iii) all of the terms, conditions, or other facts with respect\nto any Possible Transaction, including the existence or status thereof, and (iv) all Review Material; and (b) use all Review Material solely for the\npurpose of evaluating a Possible Transaction, and not, directly or indirectly, for any competing business or purpose or in any other way; provided,\nhowever, that Counterparty may disclose facts, terms, and conditions referred to in clause (a) above and any Review Material to those of its\nRepresentatives who need to know such information for the purpose of evaluating a Possible Transaction if, but only if, prior to being told of such\nmatters or being given access to any Review Material, the applicable Representative is informed of the confidential nature of the Review Material\nand agrees to be bound by the terms of this Agreement as if it were a party hereto.\nSection 2.2 Compelled Disclosure.\n2\n(a) If Counterparty or its Representative becomes subject to a bona fide requirement (by deposition questions, interrogatories, requests\nfor information or documents, subpoena, civil investigative demand, or similar process) to disclose any Review Material, or any part thereof, or any\nother matter required by Section 2.1 to be kept confidential, it (i) will promptly notify the Company of the existence, terms, and circumstances of\nsuch requirement(s) so that the Company may seek an appropriate protective order or waive compliance with the provisions of this Agreement, and\n(ii) will, and will cause its Representatives to, cooperate fully with the Company in seeking a protective order or other assurance that confidential\ntreatment will be accorded to the disclosed Review Material or other such matter.\n(b) If Counterparty or any of its Representatives that has complied with Section 2.2(a) is compelled, in the reasonable opinion of its legal\ncounsel, to make disclosure in response to a requirement described in Section 2.2(a) or else stand liable for contempt or suffer other censure or\npenalty, it may make such disclosure without liability hereunder notwithstanding the absence of a protective order or waiver of compliance\nhereunder, provided that the Company is informed of this fact as set forth herein as soon as, and to the extent, legally permissible.\nSection 2.3 Ownership and Return of Information. All Review Material other than Counterparty Materials shall be and remain the property of\nthe Company. Nothing in this Agreement shall be construed as granting any rights in or to Review Material other than Counterparty Materials to\nCounterparty or any of its Representatives receiving it. If Counterparty decides that it does not wish to proceed with a Possible Transaction, it will\npromptly inform the Company of that decision. In that case, or at any time upon the request of the Company, all Review Material (including all\nCounterparty Materials), including all copies thereof and all notes or other writings or documents containing any of its terms or provisions, shall be\npromptly (and in any event within five business days of the earlier of such decision or such request) returned to the Company or destroyed, and if\ndestroyed, such destruction shall be certified in writing to the Company. Notwithstanding the return or destruction of Review Material, Counterparty\nand its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.\nSection 2.4 No Representation or Warranty. The Company makes no representation or warranty, express or implied, as to the accuracy or\ncompleteness of any Review Material. Neither the Company nor its Representatives shall have any liability to Counterparty or its Representatives\nrelating to or arising from Counterparty’s (or its Representatives’) use of or reliance upon Review Material, or for any errors or omissions therefrom.\nFor the avoidance of doubt, the Parties hereby acknowledge and agree that neither this Agreement nor any Review Material shall be deemed to\nconstitute the solicitation of an offer to buy any security or an offer to sell any security.\nSection 2.5 Responsibility for Representatives. Counterparty will be responsible for any breach of this Agreement by its Representatives.\nSection 2.6 No Commitment. Counterparty acknowledges that the Company has made no decision to pursue a Possible Transaction.\nCounterparty agrees that no contract or agreement providing for any transaction involving the Company shall be deemed to exist between\n3\nCounterparty and the Company unless and until a final definitive agreement has been executed and delivered. Counterparty further agrees that unless\nand until a final definitive agreement regarding a transaction between the Company and Counterparty has been executed and delivered, neither the\nCompany nor Counterparty will be under any legal, fiduciary or other obligation of any kind whatsoever with respect to a Possible Transaction by\nvirtue of this Agreement or any other written or oral expression with respect to a Possible Transaction by the Party or its Representatives, except for\nthe matters specifically agreed to by the Company and Counterparty in this Agreement. Counterparty further agrees that the Company has the right,\nin its sole and absolute discretion, at any time and for any or no reason, to terminate any discussions or negotiations (if any take place), to determine\nnot to furnish or to stop furnishing Review Material to Counterparty or its Representatives, and to reject any and all proposals (if any are made) with\nrespect to a transaction between the Company and Counterparty. Counterparty also agrees that (i) the Company and its Representatives shall be free\nto conduct any process for any transaction involving the Company, if and as they in their sole discretion shall determine (including, without\nlimitation, negotiating with any other interested parties and entering into a preliminary or definitive agreement without prior notice to Counterparty\nor any other person) and (ii) the Company may change any procedures relating to such process or transaction at any time without notice to\nCounterparty or any other person.\nSection 2.7 Other Agreements. Counterparty represents that neither it nor any of its Representatives has entered into, directly or indirectly, any\nagreements or understandings with any person (other than its Representatives) with respect to a possible transaction involving the Company.\nCounterparty agrees that, without the prior written consent of the Company, neither it nor any of its Representatives will enter into, or maintain or\ncontinue, directly or indirectly, any discussions, negotiations, agreements or understandings with any person (other than any of its Representatives\nand, subject to and only as and to the extent permitted by the Special Committee, members of the Gold family and the Company’s CEO and their\nRepresentatives), with respect to a possible transaction involving the Company.\nSection 2.8 Financing. Except with respect to any debt financing sources that are identified in writing to Lazard (each, an “Exempt\nParty”), and, subject to and only as and to the extent permitted in writing by the Special Committee, members of the Gold family and the Company’s\nCEO, Counterparty agrees that neither it nor any of its Representatives will provide the Review Material to, or have any discussions concerning a\npossible transaction involving the Company with, any potential debt or equity financing source without the written consent of the Company. Whether\nor not any such consent is granted, Counterparty agrees that it will not, directly or indirectly, require, instruct or encourage any financial institutions\nor financing sources not to be retained by any other person in connection with a possible transaction involving the Company and, if requested,\nCounterparty shall consent to any such retention, and waive any actual or alleged conflict that may arise from any existing or past relationship with\nsuch parties, in connection with such possible transaction. Each Exempt Party shall be considered a Representative of Counterparty for all purposes\nof this Agreement.\nARTICLE 3\nCERTAIN RESTRICTIONS\n4\nSection 3.1 Non-Solicitation of Employees. Until the Restriction Period expires, Counterparty will not, nor will it permit any of its Affiliates\nto, without the Company’s prior written consent, directly or indirectly solicit for employment or hire any employee of the Company with whom\nCounterparty has had contact or who became known to Counterparty in connection with Counterparty’s evaluation of a Possible Transaction, or\nsolicit, induce or otherwise encourage any such person to discontinue or cancel his or her relationship (contractual or otherwise) with the Company,\nprovided, however, that the foregoing provision shall not prevent Counterparty or its Affiliates from employing any such person who contacts\nCounterparty or such Affiliate on his or her own initiative or as a result of a general advertising and without any direct or indirect solicitation by\nCounterparty or its Affiliates.\nSection 3.2 Restrictions on Certain Actions. From and after the date hereof, until the Restriction Period expires, Counterparty agrees that it will\nnot, and will not permit any of its Affiliates to, singly or as part of a group, directly or indirectly, propose to the Company or any other person any\ntransaction between Counterparty and the Company and/or the Company’s security holders or involving any of the Company’s securities or security\nholders unless the Company shall have specifically requested in writing that Counterparty makes such a proposal. Counterparty further agrees that,\nfrom and after the date hereof, until the Restriction Period expires, Counterparty will not, and will not permit any of its Affiliates to, singly or as part\nof a group, directly or indirectly, in any manner, (a) beneficially or otherwise, own (other than the shares of Company common stock owned of\nrecord (or, if and only to the extent and for the reasons disclosed in Counterparty’s Schedule 13D with respect to the Company filed prior to the date\nhereof, beneficially) as of the date hereof by Counterparty or any of its affiliated funds), acquire, agree to acquire or propose to acquire, by purchase,\nexchange, conversion or otherwise, any securities or property of the Company (other than purchases of products by any Exempt Party or purchases\nin the ordinary course of business of both Counterparty and the Company), or any interest in any indebtedness of the Company, or any rights or\noptions to acquire any such securities, property or interests or that are otherwise related to or have a value determined in whole or in part by\nreference to, or derived in whole or in part from, any such securities, property or interests, (b) except at the specific written request of Company,\npropose to enter into, directly or indirectly, any form of merger, tender or exchange offer, consolidation, change of control or other business\ncombination or other similar transaction involving the Company, (c) otherwise act to seek to control or influence the management, Board of\nDirectors or policies of the Company, (d) enter into any contract, arrangement or understanding with any person with respect to any securities of the\nCompany, including but not limited to any joint venture, loan or option agreement, put or call, guarantee of loans, guarantee of profits or division of\nlosses or profits (except with respect to any Exempt Party), (e) disclose any intention, plan or arrangement, or otherwise make any proposal or other\nstatement, inconsistent with the terms of this Agreement or (f) advise, assist or encourage any other persons in connection with any of the foregoing.\nCounterparty also agrees during such period that it will not, and will not permit any of its Affiliates to, singly or as part of a group, directly or\nindirectly, (i) request the Company (or its respective directors, officers, affiliates, employees or agents) to amend, waive or terminate any provision\nof this paragraph (including this sentence), or (ii) take any action which might require the Company to make a public announcement regarding the\npossibility of a business combination or merger involving the Company.\n5\nSection 3.3 Material Non-Public Information. Counterparty represents that it is aware, and will advise its Representatives who are informed of\nthe matters that are the subject of this Agreement, that the Review Material may contain material non-public information relating to the Company’s\nsecurities, and that there may consequently be restrictions imposed upon, or potential liability for, Counterparty and its Representatives, or their\nrespective affiliates, by the Securities Exchange Act of 1934, as amended, and other similar market abuse and/or insider trading laws and regulations\nand any applicable listing rules related to the purchase or sale of such securities by any person who has received such information, the giving of\nadvice or encouragement to any person to purchase or sell such securities, advising or encouraging any person to give advice or encouragement to\nanother person to purchase or sell such securities, or the communication of such information to any other person who will or is likely to, or may,\npurchase or sell such securities under circumstances that would result in a violation of the foregoing laws or rules.\nARTICLE 4\nMISCELLANEOUS\nSection 4.1 Enforcement. Counterparty acknowledges and agrees that irreparable damage would occur if any of the provisions of this\nAgreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the Company will be entitled to an\ninjunction or injunctions to prevent breaches of this Agreement and to enforce specifically its provisions in any court of the United States or any\nstate having jurisdiction, without the necessity of furnishing a bond of any type, and Counterparty will not oppose the granting of such relief on the\ngrounds that an adequate remedy at law exists, this entitlement being in addition to any other remedy to which the Company may be entitled by law\nor in equity. No failure or delay on the part of the Company in the exercise of any power, right or privilege under this Agreement shall operate as a\nwaiver thereof, nor shall any single or partial exercise of any such power, right or privilege, preclude other or further exercise thereof or of any other\nright, power or privilege.\nSection 4.2 Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof.\nThis Agreement may be amended only by an agreement in writing executed by the Parties.\nSection 4.3 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the remaining\nprovisions shall remain in full force and effect. It is declared to be the intention of the Parties that they would have executed the remaining\nprovisions without including any that may be held unenforceable.\nSection 4.4 Headings. Descriptive headings are for convenience only and will not control or affect the meaning or construction of any\nprovision of this Agreement.\nSection 4.5 Counterparts. This Agreement may be executed in two or more counterparts, each such executed counterpart being an original\ninstrument but together constituting one agreement.\n6\nSection 4.6 Notices. Any notices, consents, requests, instructions, approvals and other communications required or permitted to be given,\nserved or delivered pursuant to this Agreement shall be deemed to have been given, served or delivered (a) on the second business day after being\ndeposited in the United States mail, registered or certified and with proper postage prepaid, (b) on the first business day after being deposited with\nFederal Express or any other recognized overnight courier services with proper fees prepaid or (c) on the business day on which it is sent and\nreceived by fax,\nif to the Company:\n99¢ Only Stores\n4000 East Union Pacific Avenue\nCity of Commerce, CA 90023\nAttention: Russell Wolpert\nFax: 323-307 -9611\nwith a copy to:\nMorrison & Foerster LLP\n555 West Fifth Avenue\nLos Angeles, CA 90013\nAttention: Jonathan T. Keen\nFax: (213) 892-5733\nif to Counterparty:\nLeonard Green & Partners, L.P.\n11111 Santa Monica Blvd., Suite 2000\nLos Angeles, CA 90025\nAttention: James D. Halper\nFax: (310) 954-0404\nwith a copy to:\nLatham & Watkins, L.L .P.\n885 Third Avenue, Suite 1000\nNew York, NY 10022\nAttention: Howard A. Sobel\nFax: (212) 751-4864\nor to such other address or fax number as any party may, from time to time, designate in a written notice given in a like manner.\nSection 4.7 Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective\nsuccessors and assigns, but shall not be assignable by either Party without the prior written consent of the other Party.\n7\nSection 4.8 Choice of Law/Venue. This Agreement will be governed by and construed and enforced in accordance with the internal laws of the\nState of California, without giving effect to the conflict of laws principles thereof. Each Party hereby submits to personal jurisdiction before any\ncourt of proper subject matter jurisdiction located in Los Angeles, California, to enforce the terms of this Agreement and waives any and all\nobjections to the jurisdiction and proper venue of such courts.\nSection 4.9 No Third Party Beneficiaries. There are no intended third party beneficiaries to this Agreement.\nSection 4.10 Designated Representative. Except as otherwise expressly permitted hereby, Counterparty agrees that all (i) contacts and\ncommunications with the Company or any of its Representatives regarding Review Material or the Possible Transaction, or otherwise relating to the\nCompany or its business, operations, prospects, assets or liabilities, (ii) requests for additional information from the Company or any of its\nRepresentatives, (iii) requests for on-site access or management meetings and (iv) discussions or questions regarding procedures, shall be submitted\nor directed solely to a designated representative of Lazard, or such other person, if any, as the Company may designate in writing from time to time\n(the “Designated Representative”). Without limiting the foregoing, Counterparty shall, and shall cause its Representatives to, not initiate or maintain\nany contact with any officer, director, employee or agent of the Company regarding any Review Material or otherwise relating to the Company or its\nbusiness, operations, prospects, assets or liabilities, or regarding any potential transaction involving the Company, without written consent from the\nDesignated Representative. In addition, and without limiting the foregoing, Counterparty and its Representatives shall not have any communications\n(orally or in writing or through any other means) with any member of the Gold Family or the Company’s CEO (either directly or through their\nrepresentatives or advisors) in their capacities as shareholders, other than as permitted by the Special Committee.\nThe prohibition hereunder on communicating with members of the Gold family and the Company’s CEO, in their capacities as shareholders,\nshall expire on the date three (3) weeks following the public announcement by the Special Committee that it has ceased to pursue a Possible\nTransaction or any strategic alternative for the Company, provided, that such expiration shall not otherwise affect any other provision of this\nAgreement.\n8\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective duly authorized officers as of the\ndate first written above.\n99¢ Only Stores\nBy: /s/ Marvin L. Holen\nIts: Chairman of the Special Committee\nLeonard Green & Partners, L.P.\nBy: LGP Management, Inc.,\nits general partner\nBy: /s/ Michael Solomon\nIts: Partner\n9	EX-7.5 2 dex75.htm AMENDED AND RESTATED CONFIDENTIALITY AGREEMENT\nExhibit 7.5\nExecution Version\nAMENDED AND RESTATED CONFIDENTIALITY AGREEMENT\nThis Amended and Restated Confidentiality Agreement dated as of July 13, 2011 (the “Agreement”), is entered into between 99¢ Only\nStores, a California corporation (the “Company”), and Leonard Green & Partners, L.P., a Limited Partnership (“Counterparty”). Each of the\nCompany and Counterparty are referred to herein as a “Party.”\nRECITALS\nA. Counterparty is evaluating, together with certain members of the Gold family and the Company’s CEO, a possible negotiated\ntransaction (a “Possible Transaction”) involving the Company, and has requested access to certain information concerning the Company.\nB. The Company requires, as a condition to providing such information to Counterparty or its Representatives, that any information\nprovided by it or on its behalf to Counterparty or its Representatives shall be kept strictly confidential, and that Counterparty agrees to certain other\nrestrictions and agreements, all as set forth herein.\nC. Counterparty and the Company on January 27, 2011 entered into a Confidentiality Agreement (the “Original Confidentiality\nAgreement”). Counterparty and the Company have agreed to certain modifications of the Original Confidentiality Agreement and wish to amend and\nrestate the Original Confidentiality Agreement in its entirety to reflect such modifications.\nNOW, THEREFORE, in consideration of the foregoing recitals and the agreements contained herein, and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:\nARTICLE 1\nDEFINITIONS\nSection 1.1 Certain Defined Terms. For purposes of this Agreement, the following terms shall have the following meanings:\n(a) “Affiliate” of a specified person shall mean any corporation or other person or entity that directly or indirectly, through one or more\nintermediaries, controls, is controlled by, or is under common control with the person specified. The term “control” means the possession, direct or\nindirect, of the power to direct or cause the direction of the management and policies of a person or entity.\n(b) “Representatives” means a Party’s officers, directors, employees, legal counsel, financial advisors, debt financing sources (subject to\nSection 2.8) and, in the case of\nCounterparty, any consultant to Counterparty who has been pre-approved in writing by the Company.\n(c) “Restriction Period” means the period commencing on January 27, 2011 and ending on the date that is 18 months from January 27,\n2011.\n(d) “Review Material” means any and all information, data, and analyses, whether written or oral, and any and all documents and\nmaterials, furnished or made available by the Company or its Representatives to Counterparty or its Representatives relating to a Possible\nTransaction or in connection with the consideration of a Possible Transaction or otherwise relating to the Company or its business, operations,\nprospects, assets or liabilities, and any and all analyses, compilations, studies, documents, or other material prepared by Counterparty or its\nRepresentatives containing or based in whole or in part upon such information, data, and analyses, documents, and materials (“Counterparty\nMaterials”), but does not include information, data, analyses, documents, or materials that (i) is when furnished or thereafter becomes available to\nthe public other than as a result of a disclosure by Counterparty or its Representatives, or (ii) is already in the possession of or becomes available to\nCounterparty or its Representatives on a non-confidential basis from a source other than the Company, any of its Affiliates, or any of its or its\nAffiliates’ Representatives, provided that, to the knowledge of Counterparty, such source is in lawful possession of such information, data, analyses,\ndocuments or materials and is not and was not bound by an obligation of confidentiality to the Company, any of its Affiliates, or any of its or its\nAffiliates’ Representatives, or (iii) Counterparty can demonstrate has been independently developed by it or its Representatives without a violation\nof this Agreement.\nARTICLE 2\nCONFIDENTIALITY\nSection 2.1 Confidentiality Obligation. Except as otherwise contemplated in Section 2.2, Counterparty shall, and shall cause its\nRepresentatives to, (a) keep strictly confidential and use its best efforts to protect against and prevent the disclosure of (i) the fact that the Parties\nhave entered into this Agreement and/or that the Company may or has provided information hereunder, (ii) the fact that discussions or negotiations\nare taking place or have taken place, if any take place, concerning a Possible Transaction, (iii) all of the terms, conditions, or other facts with respect\nto any Possible Transaction, including the existence or status thereof, and (iv) all Review Material; and (b) use all Review Material solely for the\npurpose of evaluating a Possible Transaction, and not, directly or indirectly, for any competing business or purpose or in any other way; provided,\nhowever, that Counterparty may disclose facts, terms, and conditions referred to in clause (a) above and any Review Material to those of its\nRepresentatives who need to know such information for the purpose of evaluating a Possible Transaction if, but only if, prior to being told of such\nmatters or being given access to any Review Material, the applicable Representative is informed of the confidential nature of the Review Material\nand agrees to be bound by the terms of this Agreement as if it were a party hereto.\n \nSection 2.2 Compelled Disclosure.\n(a) If Counterparty or its Representative becomes subject to a bona fide requirement (by deposition questions, interrogatories, requests\nfor information or documents, subpoena, civil investigative demand, or similar process) to disclose any Review Material, or any part thereof, or any\nother matter required by Section 2.1 to be kept confidential, it (i) will promptly notify the Company of the existence, terms, and circumstances of\nsuch requirement(s) so that the Company may seek an appropriate protective order or waive compliance with the provisions of this Agreement, and\n(ii) will, and will cause its Representatives to, cooperate fully with the Company in seeking a protective order or other assurance that confidential\ntreatment will be accorded to the disclosed Review Material or other such matter.\n(b) If Counterparty or any of its Representatives that has complied with Section 2.2(a) is compelled, in the reasonable opinion of its legal\ncounsel, to make disclosure in response to a requirement described in Section 2.2(a) or else stand liable for contempt or suffer other censure or\npenalty, it may make such disclosure without liability hereunder notwithstanding the absence of a protective order or waiver of compliance\nhereunder, provided that the Company is informed of this fact as set forth herein as soon as, and to the extent, legally permissible.\nSection 2.3 Ownership and Return of Information. All Review Material other than Counterparty Materials shall be and remain the property of\nthe Company. Nothing in this Agreement shall be construed as granting any rights in or to Review Material other than Counterparty Materials to\nCounterparty or any of its Representatives receiving it. If Counterparty decides that it does not wish to proceed with a Possible Transaction, it will\npromptly inform the Company of that decision. In that case, or at any time upon the request of the Company, all Review Material (including all\nCounterparty Materials), including all copies thereof and all notes or other writings or documents containing any of its terms or provisions, shall be\npromptly (and in any event within five business days of the earlier of such decision or such request) returned to the Company or destroyed, and if\ndestroyed, such destruction shall be certified in writing to the Company. Notwithstanding the return or destruction of Review Material, Counterparty\nand its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.\nSection 2.4 No Representation or Warranty. The Company makes no representation or warranty, express or implied, as to the accuracy or\ncompleteness of any Review Material. Neither the Company nor its Representatives shall have any liability to Counterparty or its Representatives\nrelating to or arising from Counterparty’s (or its Representatives’) use of or reliance upon Review Material, or for any errors or omissions therefrom.\nFor the avoidance of doubt, the Parties hereby acknowledge and agree that neither this Agreement nor any Review Material shall be deemed to\nconstitute the solicitation of an offer to buy any security or an offer to sell any security.\nSection 2.5 Responsibility for Representatives. Counterparty will be responsible for any breach of this Agreement by its Representatives.\n \nSection 2.6 No Commitment. Counterparty acknowledges that the Company has made no decision to pursue a Possible Transaction.\nCounterparty agrees that no contract or agreement providing for any transaction involving the Company shall be deemed to exist between\n3\nCounterparty and the Company unless and until a final definitive agreement has been executed and delivered. Counterparty further agrees that unless\nand until a final definitive agreement regarding a transaction between the Company and Counterparty has been executed and delivered, neither the\nCompany nor Counterparty will be under any legal, fiduciary or other obligation of any kind whatsoever with respect to a Possible Transaction by\nvirtue of this Agreement or any other written or oral expression with respect to a Possible Transaction by the Party or its Representatives, except for\nthe matters specifically agreed to by the Company and Counterparty in this Agreement. Counterparty further agrees that the Company has the right,\nin its sole and absolute discretion, at any time and for any or no reason, to terminate any discussions or negotiations (if any take place), to determine\nnot to furnish or to stop furnishing Review Material to Counterparty or its Representatives, and to reject any and all proposals (if any are made) with\nrespect to a transaction between the Company and Counterparty. Counterparty also agrees that (i) the Company and its Representatives shall be free\nto conduct any process for any transaction involving the Company, if and as they in their sole discretion shall determine (including, without\nlimitation, negotiating with any other interested parties and entering into a preliminary or definitive agreement without prior notice to Counterparty\nor any other person) and (ii) the Company may change any procedures relating to such process or transaction at any time without notice to\nCounterparty or any other person.\nSection 2.7 Other Agreements. Counterparty represents that neither it nor any of its Representatives has entered into, directly or indirectly, any\nagreements or understandings with any person (other than its Representatives) with respect to a possible transaction involving the Company.\nCounterparty agrees that, without the prior written consent of the Company, neither it nor any of its Representatives will enter into, or maintain or\ncontinue, directly or indirectly, any discussions, negotiations, agreements or understandings with any person (other than any of its Representatives\nand, subject to and only as and to the extent permitted by the Special Committee, members of the Gold family and the Company’s CEO and their\nRepresentatives), with respect to a possible transaction involving the Company.\nSection 2.8 Financing. Except with respect to any debt financing sources that are identified in writing to Lazard (each, an “Exempt\nParty”), and, subject to and only as and to the extent permitted in writing by the Special Committee, members of the Gold family and the Company’s\nCEO, Counterparty agrees that neither it nor any of its Representatives will provide the Review Material to, or have any discussions concerning a\npossible transaction involving the Company with, any potential debt or equity financing source without the written consent of the Company. Whether\nor not any such consent is granted, Counterparty agrees that it will not, directly or indirectly, require, instruct or encourage any financial institutions\nor financing sources not to be retained by any other person in connection with a possible transaction involving the Company and, if requested,\nCounterparty shall consent to any such retention, and waive any actual or alleged conflict that may arise from any existing or past relationship with\nsuch parties, in connection with such possible transaction. Each Exempt Party shall be considered a Representative of Counterparty for all purposes\nof this Agreement.\nARTICLE 3\nCERTAIN RESTRICTIONS\n4\nSection 3.1 Non-Solicitation of Employees. Until the Restriction Period expires, Counterparty will not, nor will it permit any of its Affiliates\nto, without the Company’s prior written consent, directly or indirectly solicit for employment or hire any employee of the Company with whom\nCounterparty has had contact or who became known to Counterparty in connection with Counterparty’s evaluation of a Possible Transaction, or\nsolicit, induce or otherwise encourage any such person to discontinue or cancel his or her relationship (contractual or otherwise) with the Company,\nprovided, however, that the foregoing provision shall not prevent Counterparty or its Affiliates from employing any such person who contacts\nCounterparty or such Affiliate on his or her own initiative or as a result of a general advertising and without any direct or indirect solicitation by\nCounterparty or its Affiliates.\nSection 3.2 Restrictions on Certain Actions. From and after the date hereof, until the Restriction Period expires, Counterparty agrees that it will\nnot, and will not permit any of its Affiliates to, singly or as part of a group, directly or indirectly, propose to the Company or any other person any\ntransaction between Counterparty and the Company and/or the Company’s security holders or involving any of the Company’s securities or security\nholders unless the Company shall have specifically requested in writing that Counterparty makes such a proposal. Counterparty further agrees that,\nfrom and after the date hereof, until the Restriction Period expires, Counterparty will not, and will not permit any of its Affiliates to, singly or as part\nof a group, directly or indirectly, in any manner, (a) beneficially or otherwise, own (other than the shares of Company common stock owned of\nrecord (or, if and only to the extent and for the reasons disclosed in Counterparty’s Schedule 13D with respect to the Company filed prior to the date\nhereof, beneficially) as of the date hereof by Counterparty or any of its affiliated funds), acquire, agree to acquire or propose to acquire, by purchase,\nexchange, conversion or otherwise, any securities or property of the Company (other than purchases of products by any Exempt Party or purchases\nin the ordinary course of business of both Counterparty and the Company), or any interest in any indebtedness of the Company, or any rights or\noptions to acquire any such securities, property or interests or that are otherwise related to or have a value determined in whole or in part by\nreference to, or derived in whole or in part from, any such securities, property or interests, (b) except at the specific written request of Company,\npropose to enter into, directly or indirectly, any form of merger, tender or exchange offer, consolidation, change of control or other business\ncombination or other similar transaction involving the Company, (c) otherwise act to seek to control or influence the management, Board of\nDirectors or policies of the Company, (d) enter into any contract, arrangement or understanding with any person with respect to any securities of the\nCompany, including but not limited to any joint venture, loan or option agreement, put or call, guarantee of loans, guarantee of profits or division of\nlosses or profits (except with respect to any Exempt Party), (e) disclose any intention, plan or arrangement, or otherwise make any proposal or other\nstatement, inconsistent with the terms of this Agreement or (f) advise, assist or encourage any other persons in connection with any of the foregoing.\nCounterparty also agrees during such period that it will not, and will not permit any of its Affiliates to, singly or as part of a group, directly or\nindirectly, (i) request the Company (or its respective directors, officers, affiliates, employees or agents) to amend, waive or terminate any provision\nof this paragraph (including this sentence), or (ii) take any action which might require the Company to make a public announcement regarding the\npossibility of a business combination or merger involving the Company.\nSection 3.3 Material Non-Public Information. Counterparty represents that it is aware, and will advise its Representatives who are informed of\nthe matters that are the subject of this Agreement, that the Review Material may contain material non-public information relating to the Company’s\nsecurities, and that there may consequently be restrictions imposed upon, or potential liability for, Counterparty and its Representatives, or their\nrespective affiliates, by the Securities Exchange Act of 1934, as amended, and other similar market abuse and/or insider trading laws and regulations\nand any applicable listing rules related to the purchase or sale of such securities by any person who has received such information, the giving of\nadvice or encouragement to any person to purchase or sell such securities, advising or encouraging any person to give advice or encouragement to\nanother person to purchase or sell such securities, or the communication of such information to any other person who will or is likely to, or may,\npurchase or sell such securities under circumstances that would result in a violation of the foregoing laws or rules.\nARTICLE 4\nMISCELLANEOUS\nSection 4.1 Enforcement. Counterparty acknowledges and agrees that irreparable damage would occur if any of the provisions of this\nAgreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the Company will be entitled to an\ninjunction or injunctions to prevent breaches of this Agreement and to enforce specifically its provisions in any court of the United States or any\nstate having jurisdiction, without the necessity of furnishing a bond of any type, and Counterparty will not oppose the granting of such relief on the\ngrounds that an adequate remedy at law exists, this entitlement being in addition to any other remedy to which the Company may be entitled by law\nor in equity. No failure or delay on the part of the Company in the exercise of any power, right or privilege under this Agreement shall operate as a\nwaiver thereof, nor shall any single or partial exercise of any such power, right or privilege, preclude other or further exercise thereof or of any other\nright, power or privilege.\nSection 4.2 Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof.\nThis Agreement may be amended only by an agreement in writing executed by the Parties.\nSection 4.3 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the remaining\nprovisions shall remain in full force and effect. It is declared to be the intention of the Parties that they would have executed the remaining\nprovisions without including any that may be held unenforceable.\nSection 4.4 Headings. Descriptive headings are for convenience only and will not control or affect the meaning or construction of any\nprovision of this Agreement.\nSection 4.5 Counterparts. This Agreement may be executed in two or more counterparts, each such executed counterpart being an original\ninstrument but together constituting one agreement.\nSection 4.6 Notices. Any notices, consents, requests, instructions, approvals and other communications required or permitted to be given,\nserved or delivered pursuant to this Agreement shall be deemed to have been given, served or delivered (a) on the second business day after being\ndeposited in the United States mail, registered or certified and with proper postage prepaid, (b) on the first business day after being deposited with\nFederal Express or any other recognized overnight courier services with proper fees prepaid or (c) on the business day on which it is sent and\nreceived by fax,\nif to the Company:\n99¢ Only Stores\n4000 East Union Pacific Avenue\nCity of Commerce, CA 90023\nAttention: Russell Wolpert\nFax: 323-307-9611\nwith a copy to:\nMorrison & Foerster LLLP\n555 West Fifth Avenue\nLos Angeles, CA 90013\nAttention: Jonathan T. Keen\nFax: (213) 892-5733\nif to Counterparty:\nLeonard Green & Partners, L.P.\n11111 Santa Monica Blvd., Suite 2000\nLos Angeles, CA 90025\nAttention: James D. Halper\nFax: (310) 954-0404\nwith a copy to:\nLatham & Watkins, L.L.P.\n885 Third Avenue, Suite 1000\nNew York, NY 10022\nAttention: Howard A. Sobel\nFax: (212) 751-4864\nor to such other address or fax number as any party may, from time to time, designate in a written notice given in a like manner.\nSection 4.7 Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective\nsuccessors and assigns, but shall not be assignable by either Party without the prior written consent of the other Party.\n7\nSection 4.8 Choice of Law/Venue. This Agreement will be governed by and construed and enforced in accordance with the internal laws of the\nState of California, without giving effect to the conflict of laws principles thereof. Each Party hereby submits to personal jurisdiction before any\ncourt of proper subject matter jurisdiction located in Los Angeles, California, to enforce the terms of this Agreement and waives any and all\nobjections to the jurisdiction and proper venue of such courts.\nSection 4.9 No Third Party Beneficiaries. There are no intended third party beneficiaries to this Agreement.\nSection 4.10 Designated Representative. Except as otherwise expressly permitted hereby, Counterparty agrees that all (i) contacts and\ncommunications with the Company or any of its Representatives regarding Review Material or the Possible Transaction, or otherwise relating to the\nCompany or its business, operations, prospects, assets or liabilities, (ii) requests for additional information from the Company or any of its\nRepresentatives, (iii) requests for on-site access or management meetings and (iv) discussions or questions regarding procedures, shall be submitted\nor directed solely to a designated representative of Lazard, or such other person, if any, as the Company may designate in writing from time to time\n(the “Designated Representative”). Without limiting the foregoing, Counterparty shall, and shall cause its Representatives to, not initiate or maintain\nany contact with any officer, director, employee or agent of the Company regarding any Review Material or otherwise relating to the Company or its\nbusiness, operations, prospects, assets or liabilities, or regarding any potential transaction involving the Company, without written consent from the\nDesignated Representative. In addition, and without limiting the foregoing, Counterparty and its Representatives shall not have any communications\n(orally or in writing or through any other means) with any member of the Gold Family or the Company’s CEO (either directly or through their\nrepresentatives or advisors) in their capacities as shareholders, other than as permitted by the Special Committee.\nThe prohibition hereunder on communicating with members of the Gold family and the Company’s CEO, in their capacities as shareholders,\nshall expire on the date three (3) weeks following the public announcement by the Special Committee that it has ceased to pursue a Possible\nTransaction or any strategic alternative for the Company, provided, that such expiration shall not otherwise affect any other provision of this\nAgreement.\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective duly authorized officers as of the\ndate first written above.\n99¢ Only Stores\nBy: /s/ Marvin L. Holen\nIts: Chairman of the Special Committee\nLeonard Green & Partners, L.P.\nBy: LGP Management, Inc.,\nits general partner\nBy: /s/ Michael Solomon\nIts: Partner	EX-7.5 2 dex75.htm AMENDED AND RESTATED CONFIDENTIALITY AGREEMENT\nExhibit 7.5\nExecution Version\nAMENDED AND RESTATED CONFIDENTIALITY AGREEMENT\nThis Amended and Restated Confidentiality Agreement dated as of July 13, 2011 (the "Agreement"), is entered into between 99 Only\nStores, a California corporation (the "Company"), and Leonard Green & Partners, L.P., a Limited Partnership ("Counterparty"). Each of the\nCompany and Counterparty are referred to herein as a "Party."\nRECITALS\nA. Counterparty is evaluating, together with certain members of the Gold family and the Company's CEO, a possible negotiated\ntransaction (a "Possible Transaction") involving the Company, and has requested access to certain information concerning the Company.\nB. The Company requires, as a condition to providing such information to Counterparty or its Representatives, that any information\nprovided by it or on its behalf to Counterparty or its Representatives shall be kept strictly confidential, and that Counterparty agrees to certain other\nrestrictions and agreements, all as set forth herein.\nC. Counterparty and the Company on January 27, 2011 entered into a Confidentiality Agreement (the "Original Confidentiality\nAgreement"). Counterparty and the Company have agreed to certain modifications of the Original Confidentiality Agreement and wish to amend and\nrestate the Original Confidentiality Agreement in its entirety to reflect such modifications.\nNOW, THEREFORE, in consideration of the foregoing recitals and the agreements contained herein, and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:\nARTICLE 1\nDEFINITIONS\nSection 1.1 Certain Defined Terms. For purposes of this Agreement, the following terms shall have the following meanings:\n(a) "Affiliate" of a specified person shall mean any corporation or other person or entity that directly or indirectly, through one or more\nintermediaries, controls, is controlled by, or is under common control with the person specified. The term "control" means the possession, direct or\nindirect, of the power to direct or cause the direction of the management and policies of a person or entity.\n(b) "Representatives" means a Party's officers, directors, employees, legal counsel, financial advisors, debt financing sources (subject to\nSection 2.8) and, in the case of\nCounterparty, any consultant to Counterparty who has been pre-approved in writing by the Company.\n(c) "Restriction Period" means the period commencing on January 27, 2011 and ending on the date that is 18 months from January\n27,\n2011.\n(d) "Review Material" means any and all information, data, and analyses, whether written or oral, and any and all documents and\nmaterials, furnished or made available by the Company or its Representatives to Counterparty or its Representatives relating to a Possible\nTransaction or in connection with the consideration of a Possible Transaction or otherwise relating to the Company or its business, operations,\nprospects, assets or liabilities, and any and all analyses, compilations, studies, documents, or other material prepared by Counterparty or its\nRepresentatives containing or based in whole or in part upon such information, data, and analyses, documents, and materials ("Counterparty\nMaterials"), but does not include information, data, analyses, documents, or materials that (i) is when furnished or thereafter becomes available to\nthe public other than as a result of a disclosure by Counterparty or its Representatives, or (ii) is already in the possession of or becomes available to\nCounterparty or its Representatives on a non-confidential basis from a source other than the Company, any of its Affiliates, or any of its or its\nAffiliates' Representatives, provided that, to the knowledge of Counterparty, such source is in lawful possession of such information, data, analyses,\ndocuments or materials and is not and was not bound by an obligation of confidentiality to the Company, any of its Affiliates, or any of its or its\nAffiliates' Representatives, or (iii) Counterparty can demonstrate has been independently developed by it or its Representatives without a violation\nof this Agreement.\nARTICLE 2\nCONFIDENTIALITY\nSection 2.1 Confidentiality Obligation. Except as otherwise contemplated in Section 2.2, Counterparty shall, and shall cause its\nRepresentatives to, (a) keep strictly confidential and use its best efforts to protect against and prevent the disclosure of (i) the fact that the Parties\nhave entered into this Agreement and/or that the Company may or has provided information hereunder, (ii) the fact that discussions or negotiations\nare taking place or have taken place, if any take place, concerning a Possible Transaction, (iii) all of the terms, conditions, or other facts with respect\nto\nany Possible Transaction, including the existence or status thereof, and (iv) all Review Material; and (b) use all Review Material solely for the\npurpose of evaluating a Possible Transaction, and not, directly or indirectly, for any competing business or purpose or in any other way; provided,\nhowever, that Counterparty may disclose facts, terms, and conditions referred to in clause (a) above and any Review Material to those of its\nRepresentatives who need to know such information for the purpose of evaluating a Possible Transaction if, but only if, prior to being told of such\nmatters or being given access to any Review Material, the applicable Representative is informed of the confidential nature of the Review Material\nand agrees to be bound by the terms of this Agreement as if it were a party hereto.\nSection 2.2 Compelled Disclosure.\n2\n(a) If Counterparty or its Representative becomes subject to a bona fide requirement (by deposition questions, interrogatories, requests\nfor\ninformation or documents, subpoena, civil investigative demand, or similar process) to disclose any Review Material, or any part thereof, or any\nother matter required by Section 2.1 to be kept confidential, it (i) will promptly notify the Company of the existence, terms, and circumstances of\nsuch requirement(s) SO that the Company may seek an appropriate protective order or waive compliance with the provisions of this Agreement, and\n(ii) will, and will cause its Representatives to, cooperate fully with the Company in seeking a protective order or other assurance that confidential\ntreatment will be accorded to the disclosed Review Material or other such matter.\n(b) If Counterparty or any of its Representatives that has complied with Section 2.2(a) is compelled, in the reasonable opinion of its legal\ncounsel, to make disclosure in response to a requirement described in Section 2.2(a) or else stand liable for contempt or suffer other censure or\npenalty, it may make such disclosure without liability hereunder notwithstanding the absence of a protective order or waiver of compliance\nhereunder, provided that the Company is informed of this fact as set forth herein as soon as, and to the extent, legally permissible.\nSection 2.3 Ownership and Return of Information. All Review Material other than Counterparty Materials shall be and remain the property\nof\nthe Company. Nothing in this Agreement shall be construed as granting any rights in or to Review Material other than Counterparty Materials to\nCounterparty or any of its Representatives receiving it. If Counterparty decides that it does not wish to proceed with a Possible Transaction, it will\npromptly inform the Company of that decision. In that case, or at any time upon the request of the Company, all Review Material (including all\nCounterparty Materials), including all copies thereof and all notes or other writings or documents containing any of its terms or provisions, shall be\npromptly (and in any event within five business days of the earlier of such decision or such request) returned to the Company or destroyed, and if\ndestroyed, such destruction shall be certified in writing to the Company. Notwithstanding the return or destruction of Review Material, Counterparty\nand its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.\nSection 2.4 No Representation or Warranty.. The Company makes no representation or warranty, express or implied, as to the accuracy or\ncompleteness of any Review Material. Neither the Company nor its Representatives shall have any liability to Counterparty or its Representatives\nrelating to or arising from Counterparty's (or its Representatives') use of or reliance upon Review Material, or for any errors or omissions therefrom.\nFor the avoidance of doubt, the Parties hereby acknowledge and agree that neither this Agreement nor any Review Material shall be deemed to\nconstitute the solicitation of an offer to buy any security or an offer to sell any security.\nSection 2.5 Responsibility. fon Representatives. Counterparty will be responsible for any breach of this Agreement by its Representatives.\nSection 2.6 No Commitment. Counterparty acknowledges that the Company has made no decision to pursue a Possible Transaction.\nCounterparty agrees that no contract or agreement providing for any transaction involving the Company shall be deemed to exist between\n3\nCounterparty and the Company unless and until a final definitive agreement has been executed and delivered. Counterparty further agrees that unless\nand until a final definitive agreement regarding a transaction between the Company and Counterparty has been executed and delivered, neither the\nCompany nor Counterparty will be under any legal, fiduciary or other obligation of any kind whatsoever with respect to a Possible Transaction by\nvirtue of this Agreement or any other written or oral expression with respect to a Possible Transaction by the Party or its Representatives, except for\nthe matters specifically agreed to by the Company and Counterparty in this Agreement. Counterparty further agrees that the Company has the right,\nin its sole and absolute discretion, at any time and for any or no reason, to terminate any discussions or negotiations (if any take place), to determine\nnot to furnish or to stop furnishing Review Material to Counterparty or its Representatives, and to reject any and all proposals (if any are made) with\nrespect to a transaction between the Company and Counterparty. Counterparty also agrees that (i) the Company and its Representatives shall be free\nto conduct any process for any transaction involving the Company, if and as they in their sole discretion shall determine (including, without\nlimitation, negotiating with any other interested parties and entering into a preliminary or definitive agreement without prior notice to Counterparty\nor any other person) and (ii) the Company may change any procedures relating to such process or transaction at any time without notice to\nCounterparty or any other person.\nSection 2.7 Other Agreements. Counterparty represents that neither it nor any of its Representatives has entered into, directly or indirectly, any\nagreements or understandings with any person (other than its Representatives) with respect to a possible transaction involving the Company.\nCounterparty agrees that, without the prior written consent of the Company, neither it nor any of its Representatives will enter into, or maintain or\ncontinue, directly or indirectly, any discussions, negotiations, agreements or understandings with any person (other than any of its Representatives\nand, subject to and only as and to the extent permitted by the Special Committee, members of the Gold family and the Company's CEO and their\nRepresentatives), with respect to a possible transaction involving the Company.\nSection 2.8 Financing. Except with respect to any debt financing sources that are identified in writing to Lazard (each, an "Exempt\nParty"), and, subject to and only as and to the extent permitted in writing by the Special Committee, members of the Gold family and the Company's\nCEO, Counterparty agrees that neither it nor any of its Representatives will provide the Review Material to, or have any discussions concerning a\npossible transaction involving the Company with, any potential debt or equity financing source without the written consent of the Company. Whether\nor not any such consent is granted, Counterparty agrees that it will not, directly or indirectly, require, instruct or encourage any financial institutions\nor financing sources not to be retained by any other person in connection with a possible transaction involving the Company and, if requested,\nCounterparty shall consent to any such retention, and waive any actual or alleged conflict that may arise from any existing or past relationship with\nsuch parties, in connection with such possible transaction. Each Exempt Party shall be considered a Representative of Counterparty for all purposes\nof this Agreement.\nARTICLE 3\nCERTAIN RESTRICTIONS\n4\nSection 3.1 Non-Solicitation of Employees. Until the Restriction Period expires, Counterparty will not, nor will it permit any of its Affiliates\nto, without the Company's prior written consent, directly or indirectly solicit for employment or hire any employee of the Company with whom\nCounterparty has had contact or who became known to Counterparty in connection with Counterparty's evaluation of a Possible Transaction, or\nsolicit, induce or otherwise encourage any such person to discontinue or cancel his or her relationship (contractual or otherwise) with the Company,\nprovided, however, that the foregoing provision shall not prevent Counterparty or its Affiliates from employing any such person who contacts\nCounterparty or such Affiliate on his or her own initiative or as a result of a general advertising and without any direct or indirect solicitation\nby\nCounterparty or its Affiliates.\nSection 3.2 Restrictions on Certain Actions. From and after the date hereof, until the Restriction Period expires, Counterparty agrees that it will\nnot, and will not permit any of its Affiliates to, singly or as part of a group, directly or indirectly, propose to the Company or any other person any\ntransaction between Counterparty and the Company and/or the Company's security holders or involving any of the Company's securities or security\nholders unless the Company shall have specifically requested in writing that Counterparty makes such a proposal. Counterparty further agrees that,\nfrom and after the date hereof, until the Restriction Period expires, Counterparty will not, and will not permit any of its Affiliates to, singly or as part\nof a group, directly or indirectly, in any manner, (a) beneficially or otherwise, own (other than the shares of Company common stock owned of\nrecord (or, if and only to the extent and for the reasons disclosed in Counterparty's Schedule 13D with respect to the Company filed prior to the date\nhereof, beneficially) as of the date hereof by Counterparty or any of its affiliated funds), acquire, agree to acquire or propose to acquire, by purchase,\nexchange, conversion or otherwise, any securities or property of the Company (other than purchases of products by any Exempt Party or purchases\nin the ordinary course of business of both Counterparty and the Company), or any interest in any indebtedness of the Company, or any rights\nor\noptions to acquire any such securities, property or interests or that are otherwise related to or have a value determined in whole or in part by\nreference to, or derived in whole or in part from, any such securities, property or interests, (b) except at the specific written request of Company,\npropose to enter into, directly or indirectly, any form of merger, tender or exchange offer, consolidation, change of control or other business\ncombination or other similar transaction involving the Company, (c) otherwise act to seek to control or influence the management, Board of\nDirectors or policies of the Company, (d) enter into any contract, arrangement or understanding with any person with respect to any securities of the\nCompany, including but not limited to any joint venture, loan or option agreement, put or call, guarantee of loans, guarantee of profits or division of\nlosses or profits (except with respect to any Exempt Party), (e) disclose any intention, plan or arrangement, or otherwise make any proposal or other\nstatement, inconsistent with the terms of this Agreement or (f) advise, assist or encourage any other persons in connection with any of the foregoing.\nCounterparty also agrees during such period that it will not, and will not permit any of its Affiliates to, singly or as part of a group, directly or\nindirectly, (i) request the Company (or its respective directors, officers, affiliates, employees or agents) to amend, waive or terminate any provision\nof this paragraph (including this sentence), or (ii) take any action which might require the Company to make a public announcement regarding the\npossibility of a business combination or merger involving the Company.\n5\nSection 3.3 Material Non-Public Information. Counterparty represents that it is aware, and will advise its Representatives who are informed of\nthe matters that are the subject of this Agreement, that the Review Material may contain material non-public information relating to the Company's\nsecurities, and that there may consequently be restrictions imposed upon, or potential liability for, Counterparty and its Representatives, or their\nrespective affiliates, by the Securities Exchange Act of 1934, as amended, and other similar market abuse and/or insider trading laws and regulations\nand any applicable listing rules related to the purchase or sale of such securities by any person who has received such information, the giving of\nadvice or encouragement to any person to purchase or sell such securities, advising or encouraging any person to give advice or encouragement to\nanother person to purchase or sell such securities, or the communication of such information to any other person who will or is likely to, or may,\npurchase or sell such securities under circumstances that would result in a violation of the foregoing laws or rules.\nARTICLE 4\nMISCELLANEOUS\nSection 4.1 Enforcement. Counterparty acknowledges and agrees that irreparable damage would occur if any of the provisions of this\nAgreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the Company will be entitled to an\ninjunction or injunctions to prevent breaches of this Agreement and to enforce specifically its provisions in any court of the United States or any\nstate\nhaving jurisdiction, without the necessity of furnishing a bond of any type, and Counterparty will not oppose the granting of such relief on the\ngrounds that an adequate remedy at law exists, this entitlement being in addition to any other remedy to which the Company may be entitled by law\nor in equity. No failure or delay on the part of the Company in the exercise of any power, right or privilege under this Agreement shall operate as a\nwaiver thereof, nor shall any single or partial exercise of any such power, right or privilege, preclude other or further exercise thereof or of any other\nright, power or privilege.\nSection 4.2 Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof.\nThis Agreement may be amended only by an agreement in writing executed by the Parties.\nSection 4.3 Severability.. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the remaining\nprovisions shall remain in full force and effect. It is declared to be the intention of the Parties that they would have executed the remaining\nprovisions without including any that may be held unenforceable.\nSection 4.4 Headings. Descriptive headings are for convenience only and will not control or affect the meaning or construction of any\nprovision of this Agreement.\nSection 4.5 Counterparts. This Agreement may be executed in two or more counterparts, each such executed counterpart being an original\ninstrument but together constituting one agreement.\n6\nSection 4.6 Notices. Any notices, consents, requests, instructions, approvals and other communications required or permitted to be given,\nserved or delivered pursuant to this Agreement shall be deemed to have been given, served or delivered (a) on the second business day after being\ndeposited in the United States mail, registered or certified and with proper postage prepaid, (b) on the first business day after being deposited with\nFederal Express or any other recognized overnight courier services with proper fees prepaid or (c) on the business day on which it is sent and\nreceived by fax,\nif to the Company:\n99+ Only Stores\n4000 East Union Pacific Avenue\nCity of Commerce, CA 90023\nAttention: Russell Wolpert\nFax: 323-307-9611\nwith a copy to:\nMorrison & Foerster LLP\n555 West Fifth Avenue\nLos Angeles, CA 90013\nAttention: Jonathan T. Keen\nFax: (213) 892-5733\nif to Counterparty:\nLeonard Green & Partners, L.P.\n11111 Santa Monica Blvd., Suite 2000\nLos Angeles, CA 90025\nAttention: James D. Halper\nFax: (310) 954-0404\nwith a copy to:\nLatham & Watkins, L.L.P.\n885 Third Avenue, Suite 1000\nNew York, NY 10022\nAttention: Howard A. Sobel\nFax: (212) 751-4864\nor to such other address or fax number as any party may, from time to time, designate in a written notice given in a like manner.\nSection 4.7 Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective\nsuccessors and assigns, but shall not be assignable by either Party without the prior written consent of the other Party.\n7\nSection 4.8 Choice of Law/Venue. This Agreement will be governed by and construed and enforced in accordance with the internal laws of the\nState of California, without giving effect to the conflict of laws principles thereof. Each Party hereby submits to personal jurisdiction before any\ncourt of proper subject matter jurisdiction located in Los Angeles, California, to enforce the terms of this Agreement and waives any and all\nobjections to the jurisdiction and proper venue of such courts.\nSection 4.9 No Third Party. Beneficiaries. There are no intended third party beneficiaries to this Agreement.\nSection 4.10 Designated Representative. Except as otherwise expressly permitted hereby, Counterparty agrees that all (i) contacts and\ncommunications with the Company or any of its Representatives regarding Review Material or the Possible Transaction, or otherwise relating to the\nCompany or its business, operations, prospects, assets or liabilities, (ii) requests for additional information from the Company or any of its\nRepresentatives, (iii) requests for on-site access or management meetings and (iv) discussions or questions regarding procedures, shall be submitted\nor directed solely to a designated representative of Lazard, or such other person, if any, as the Company may designate in writing from time\nto\ntime\n(the "Designated Representative"). Without limiting the foregoing, Counterparty shall, and shall cause its Representatives to, not initiate or maintain\nany contact with any officer director, employee or agent of the Company regarding any Review Material or otherwise relating to the Company or\nits\nbusiness, operations, prospects, assets or liabilities, or regarding any potential transaction involving the Company, without written consent from the\nDesignated Representative. In addition, and without limiting the foregoing, Counterparty and its Representatives shall not have any communications\n(orally or in writing or through any other means) with any member of the Gold Family or the Company's CEO (either directly or through their\nrepresentatives or advisors) in their capacities as shareholders, other than as permitted by the Special Committee.\nThe prohibition hereunder on communicating with members of the Gold family and the Company's CEO, in their capacities as shareholders,\nshall expire on the date three (3) weeks following the public announcement by the Special Committee that it has ceased to pursue a Possible\nTransaction or any strategic alternative for the Company, provided, that such expiration shall not otherwise affect any other provision of this\nAgreement.\n8\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective duly authorized officers as of the\ndate first written above.\n994 Only Stores\nBy: /s/ Marvin L. Holen\nIts: Chairman of the Special Committee\nLeonard Green & Partners, L.P.\nBy: LGP Management, Inc.,\nits general partner\nBy: /s/ Michael Solomon\nIts: Partner\n9	EX-7.5 2 dex75.htm AMENDED AND RESTATED CONFIDENTIALITY AGREEMENT\nExhibit 7.5\nExecution Version\nAMENDED AND RESTATED CONFIDENTIALITY AGREEMENT\nThis Amended and Restated Confidentiality Agreement dated as of July 13, 2011 (the “Agreement”), is entered into between 99¢ Only\nStores, a California corporation (the “Company”), and Leonard Green & Partners, L.P., a Limited Partnership (“Counterparty”). Each of the\nCompany and Counterparty are referred to herein as a “Party.”\nRECITALS\nA. Counterparty is evaluating, together with certain members of the Gold family and the Company’s CEO, a possible negotiated\ntransaction (a “Possible Transaction”) involving the Company, and has requested access to certain information concerning the Company.\nB. The Company requires, as a condition to providing such information to Counterparty or its Representatives, that any information\nprovided by it or on its behalf to Counterparty or its Representatives shall be kept strictly confidential, and that Counterparty agrees to certain other\nrestrictions and agreements, all as set forth herein.\nC. Counterparty and the Company on January 27, 2011 entered into a Confidentiality Agreement (the “Original Confidentiality\nAgreement”). Counterparty and the Company have agreed to certain modifications of the Original Confidentiality Agreement and wish to amend and\nrestate the Original Confidentiality Agreement in its entirety to reflect such modifications.\nNOW, THEREFORE, in consideration of the foregoing recitals and the agreements contained herein, and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:\nARTICLE 1\nDEFINITIONS\nSection 1.1 Certain Defined Terms. For purposes of this Agreement, the following terms shall have the following meanings:\n(a) “Affiliate” of a specified person shall mean any corporation or other person or entity that directly or indirectly, through one or more\nintermediaries, controls, is controlled by, or is under common control with the person specified. The term “control” means the possession, direct or\nindirect, of the power to direct or cause the direction of the management and policies of a person or entity.\n(b) “Representatives” means a Party’s officers, directors, employees, legal counsel, financial advisors, debt financing sources (subject to\nSection 2.8) and, in the case of\nCounterparty, any consultant to Counterparty who has been pre-approved in writing by the Company.\n(c) “Restriction Period” means the period commencing on January 27, 2011 and ending on the date that is 18 months from January 27,\n2011.\n(d) “Review Material” means any and all information, data, and analyses, whether written or oral, and any and all documents and\nmaterials, furnished or made available by the Company or its Representatives to Counterparty or its Representatives relating to a Possible\nTransaction or in connection with the consideration of a Possible Transaction or otherwise relating to the Company or its business, operations,\nprospects, assets or liabilities, and any and all analyses, compilations, studies, documents, or other material prepared by Counterparty or its\nRepresentatives containing or based in whole or in part upon such information, data, and analyses, documents, and materials (“Counterparty\nMaterials”), but does not include information, data, analyses, documents, or materials that (i) is when furnished or thereafter becomes available to\nthe public other than as a result of a disclosure by Counterparty or its Representatives, or (ii) is already in the possession of or becomes available to\nCounterparty or its Representatives on a non-confidential basis from a source other than the Company, any of its Affiliates, or any of its or its\nAffiliates’ Representatives, provided that, to the knowledge of Counterparty, such source is in lawful possession of such information, data, analyses,\ndocuments or materials and is not and was not bound by an obligation of confidentiality to the Company, any of its Affiliates, or any of its or its\nAffiliates’ Representatives, or (iii) Counterparty can demonstrate has been independently developed by it or its Representatives without a violation\nof this Agreement.\nARTICLE 2\nCONFIDENTIALITY\nSection 2.1 Confidentiality Obligation. Except as otherwise contemplated in Section 2.2, Counterparty shall, and shall cause its\nRepresentatives to, (a) keep strictly confidential and use its best efforts to protect against and prevent the disclosure of (i) the fact that the Parties\nhave entered into this Agreement and/or that the Company may or has provided information hereunder, (ii) the fact that discussions or negotiations\nare taking place or have taken place, if any take place, concerning a Possible Transaction, (iii) all of the terms, conditions, or other facts with respect\nto any Possible Transaction, including the existence or status thereof, and (iv) all Review Material; and (b) use all Review Material solely for the\npurpose of evaluating a Possible Transaction, and not, directly or indirectly, for any competing business or purpose or in any other way; provided,\nhowever, that Counterparty may disclose facts, terms, and conditions referred to in clause (a) above and any Review Material to those of its\nRepresentatives who need to know such information for the purpose of evaluating a Possible Transaction if, but only if, prior to being told of such\nmatters or being given access to any Review Material, the applicable Representative is informed of the confidential nature of the Review Material\nand agrees to be bound by the terms of this Agreement as if it were a party hereto.\nSection 2.2 Compelled Disclosure.\n2\n(a) If Counterparty or its Representative becomes subject to a bona fide requirement (by deposition questions, interrogatories, requests\nfor information or documents, subpoena, civil investigative demand, or similar process) to disclose any Review Material, or any part thereof, or any\nother matter required by Section 2.1 to be kept confidential, it (i) will promptly notify the Company of the existence, terms, and circumstances of\nsuch requirement(s) so that the Company may seek an appropriate protective order or waive compliance with the provisions of this Agreement, and\n(ii) will, and will cause its Representatives to, cooperate fully with the Company in seeking a protective order or other assurance that confidential\ntreatment will be accorded to the disclosed Review Material or other such matter.\n(b) If Counterparty or any of its Representatives that has complied with Section 2.2(a) is compelled, in the reasonable opinion of its legal\ncounsel, to make disclosure in response to a requirement described in Section 2.2(a) or else stand liable for contempt or suffer other censure or\npenalty, it may make such disclosure without liability hereunder notwithstanding the absence of a protective order or waiver of compliance\nhereunder, provided that the Company is informed of this fact as set forth herein as soon as, and to the extent, legally permissible.\nSection 2.3 Ownership and Return of Information. All Review Material other than Counterparty Materials shall be and remain the property of\nthe Company. Nothing in this Agreement shall be construed as granting any rights in or to Review Material other than Counterparty Materials to\nCounterparty or any of its Representatives receiving it. If Counterparty decides that it does not wish to proceed with a Possible Transaction, it will\npromptly inform the Company of that decision. In that case, or at any time upon the request of the Company, all Review Material (including all\nCounterparty Materials), including all copies thereof and all notes or other writings or documents containing any of its terms or provisions, shall be\npromptly (and in any event within five business days of the earlier of such decision or such request) returned to the Company or destroyed, and if\ndestroyed, such destruction shall be certified in writing to the Company. Notwithstanding the return or destruction of Review Material, Counterparty\nand its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.\nSection 2.4 No Representation or Warranty. The Company makes no representation or warranty, express or implied, as to the accuracy or\ncompleteness of any Review Material. Neither the Company nor its Representatives shall have any liability to Counterparty or its Representatives\nrelating to or arising from Counterparty’s (or its Representatives’) use of or reliance upon Review Material, or for any errors or omissions therefrom.\nFor the avoidance of doubt, the Parties hereby acknowledge and agree that neither this Agreement nor any Review Material shall be deemed to\nconstitute the solicitation of an offer to buy any security or an offer to sell any security.\nSection 2.5 Responsibility for Representatives. Counterparty will be responsible for any breach of this Agreement by its Representatives.\nSection 2.6 No Commitment. Counterparty acknowledges that the Company has made no decision to pursue a Possible Transaction.\nCounterparty agrees that no contract or agreement providing for any transaction involving the Company shall be deemed to exist between\n3\nCounterparty and the Company unless and until a final definitive agreement has been executed and delivered. Counterparty further agrees that unless\nand until a final definitive agreement regarding a transaction between the Company and Counterparty has been executed and delivered, neither the\nCompany nor Counterparty will be under any legal, fiduciary or other obligation of any kind whatsoever with respect to a Possible Transaction by\nvirtue of this Agreement or any other written or oral expression with respect to a Possible Transaction by the Party or its Representatives, except for\nthe matters specifically agreed to by the Company and Counterparty in this Agreement. Counterparty further agrees that the Company has the right,\nin its sole and absolute discretion, at any time and for any or no reason, to terminate any discussions or negotiations (if any take place), to determine\nnot to furnish or to stop furnishing Review Material to Counterparty or its Representatives, and to reject any and all proposals (if any are made) with\nrespect to a transaction between the Company and Counterparty. Counterparty also agrees that (i) the Company and its Representatives shall be free\nto conduct any process for any transaction involving the Company, if and as they in their sole discretion shall determine (including, without\nlimitation, negotiating with any other interested parties and entering into a preliminary or definitive agreement without prior notice to Counterparty\nor any other person) and (ii) the Company may change any procedures relating to such process or transaction at any time without notice to\nCounterparty or any other person.\nSection 2.7 Other Agreements. Counterparty represents that neither it nor any of its Representatives has entered into, directly or indirectly, any\nagreements or understandings with any person (other than its Representatives) with respect to a possible transaction involving the Company.\nCounterparty agrees that, without the prior written consent of the Company, neither it nor any of its Representatives will enter into, or maintain or\ncontinue, directly or indirectly, any discussions, negotiations, agreements or understandings with any person (other than any of its Representatives\nand, subject to and only as and to the extent permitted by the Special Committee, members of the Gold family and the Company’s CEO and their\nRepresentatives), with respect to a possible transaction involving the Company.\nSection 2.8 Financing. Except with respect to any debt financing sources that are identified in writing to Lazard (each, an “Exempt\nParty”), and, subject to and only as and to the extent permitted in writing by the Special Committee, members of the Gold family and the Company’s\nCEO, Counterparty agrees that neither it nor any of its Representatives will provide the Review Material to, or have any discussions concerning a\npossible transaction involving the Company with, any potential debt or equity financing source without the written consent of the Company. Whether\nor not any such consent is granted, Counterparty agrees that it will not, directly or indirectly, require, instruct or encourage any financial institutions\nor financing sources not to be retained by any other person in connection with a possible transaction involving the Company and, if requested,\nCounterparty shall consent to any such retention, and waive any actual or alleged conflict that may arise from any existing or past relationship with\nsuch parties, in connection with such possible transaction. Each Exempt Party shall be considered a Representative of Counterparty for all purposes\nof this Agreement.\nARTICLE 3\nCERTAIN RESTRICTIONS\n4\nSection 3.1 Non-Solicitation of Employees. Until the Restriction Period expires, Counterparty will not, nor will it permit any of its Affiliates\nto, without the Company’s prior written consent, directly or indirectly solicit for employment or hire any employee of the Company with whom\nCounterparty has had contact or who became known to Counterparty in connection with Counterparty’s evaluation of a Possible Transaction, or\nsolicit, induce or otherwise encourage any such person to discontinue or cancel his or her relationship (contractual or otherwise) with the Company,\nprovided, however, that the foregoing provision shall not prevent Counterparty or its Affiliates from employing any such person who contacts\nCounterparty or such Affiliate on his or her own initiative or as a result of a general advertising and without any direct or indirect solicitation by\nCounterparty or its Affiliates.\nSection 3.2 Restrictions on Certain Actions. From and after the date hereof, until the Restriction Period expires, Counterparty agrees that it will\nnot, and will not permit any of its Affiliates to, singly or as part of a group, directly or indirectly, propose to the Company or any other person any\ntransaction between Counterparty and the Company and/or the Company’s security holders or involving any of the Company’s securities or security\nholders unless the Company shall have specifically requested in writing that Counterparty makes such a proposal. Counterparty further agrees that,\nfrom and after the date hereof, until the Restriction Period expires, Counterparty will not, and will not permit any of its Affiliates to, singly or as part\nof a group, directly or indirectly, in any manner, (a) beneficially or otherwise, own (other than the shares of Company common stock owned of\nrecord (or, if and only to the extent and for the reasons disclosed in Counterparty’s Schedule 13D with respect to the Company filed prior to the date\nhereof, beneficially) as of the date hereof by Counterparty or any of its affiliated funds), acquire, agree to acquire or propose to acquire, by purchase,\nexchange, conversion or otherwise, any securities or property of the Company (other than purchases of products by any Exempt Party or purchases\nin the ordinary course of business of both Counterparty and the Company), or any interest in any indebtedness of the Company, or any rights or\noptions to acquire any such securities, property or interests or that are otherwise related to or have a value determined in whole or in part by\nreference to, or derived in whole or in part from, any such securities, property or interests, (b) except at the specific written request of Company,\npropose to enter into, directly or indirectly, any form of merger, tender or exchange offer, consolidation, change of control or other business\ncombination or other similar transaction involving the Company, (c) otherwise act to seek to control or influence the management, Board of\nDirectors or policies of the Company, (d) enter into any contract, arrangement or understanding with any person with respect to any securities of the\nCompany, including but not limited to any joint venture, loan or option agreement, put or call, guarantee of loans, guarantee of profits or division of\nlosses or profits (except with respect to any Exempt Party), (e) disclose any intention, plan or arrangement, or otherwise make any proposal or other\nstatement, inconsistent with the terms of this Agreement or (f) advise, assist or encourage any other persons in connection with any of the foregoing.\nCounterparty also agrees during such period that it will not, and will not permit any of its Affiliates to, singly or as part of a group, directly or\nindirectly, (i) request the Company (or its respective directors, officers, affiliates, employees or agents) to amend, waive or terminate any provision\nof this paragraph (including this sentence), or (ii) take any action which might require the Company to make a public announcement regarding the\npossibility of a business combination or merger involving the Company.\n5\nSection 3.3 Material Non-Public Information. Counterparty represents that it is aware, and will advise its Representatives who are informed of\nthe matters that are the subject of this Agreement, that the Review Material may contain material non-public information relating to the Company’s\nsecurities, and that there may consequently be restrictions imposed upon, or potential liability for, Counterparty and its Representatives, or their\nrespective affiliates, by the Securities Exchange Act of 1934, as amended, and other similar market abuse and/or insider trading laws and regulations\nand any applicable listing rules related to the purchase or sale of such securities by any person who has received such information, the giving of\nadvice or encouragement to any person to purchase or sell such securities, advising or encouraging any person to give advice or encouragement to\nanother person to purchase or sell such securities, or the communication of such information to any other person who will or is likely to, or may,\npurchase or sell such securities under circumstances that would result in a violation of the foregoing laws or rules.\nARTICLE 4\nMISCELLANEOUS\nSection 4.1 Enforcement. Counterparty acknowledges and agrees that irreparable damage would occur if any of the provisions of this\nAgreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the Company will be entitled to an\ninjunction or injunctions to prevent breaches of this Agreement and to enforce specifically its provisions in any court of the United States or any\nstate having jurisdiction, without the necessity of furnishing a bond of any type, and Counterparty will not oppose the granting of such relief on the\ngrounds that an adequate remedy at law exists, this entitlement being in addition to any other remedy to which the Company may be entitled by law\nor in equity. No failure or delay on the part of the Company in the exercise of any power, right or privilege under this Agreement shall operate as a\nwaiver thereof, nor shall any single or partial exercise of any such power, right or privilege, preclude other or further exercise thereof or of any other\nright, power or privilege.\nSection 4.2 Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof.\nThis Agreement may be amended only by an agreement in writing executed by the Parties.\nSection 4.3 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the remaining\nprovisions shall remain in full force and effect. It is declared to be the intention of the Parties that they would have executed the remaining\nprovisions without including any that may be held unenforceable.\nSection 4.4 Headings. Descriptive headings are for convenience only and will not control or affect the meaning or construction of any\nprovision of this Agreement.\nSection 4.5 Counterparts. This Agreement may be executed in two or more counterparts, each such executed counterpart being an original\ninstrument but together constituting one agreement.\n6\nSection 4.6 Notices. Any notices, consents, requests, instructions, approvals and other communications required or permitted to be given,\nserved or delivered pursuant to this Agreement shall be deemed to have been given, served or delivered (a) on the second business day after being\ndeposited in the United States mail, registered or certified and with proper postage prepaid, (b) on the first business day after being deposited with\nFederal Express or any other recognized overnight courier services with proper fees prepaid or (c) on the business day on which it is sent and\nreceived by fax,\nif to the Company:\n99¢ Only Stores\n4000 East Union Pacific Avenue\nCity of Commerce, CA 90023\nAttention: Russell Wolpert\nFax: 323-307 -9611\nwith a copy to:\nMorrison & Foerster LLP\n555 West Fifth Avenue\nLos Angeles, CA 90013\nAttention: Jonathan T. Keen\nFax: (213) 892-5733\nif to Counterparty:\nLeonard Green & Partners, L.P.\n11111 Santa Monica Blvd., Suite 2000\nLos Angeles, CA 90025\nAttention: James D. Halper\nFax: (310) 954-0404\nwith a copy to:\nLatham & Watkins, L.L .P.\n885 Third Avenue, Suite 1000\nNew York, NY 10022\nAttention: Howard A. Sobel\nFax: (212) 751-4864\nor to such other address or fax number as any party may, from time to time, designate in a written notice given in a like manner.\nSection 4.7 Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective\nsuccessors and assigns, but shall not be assignable by either Party without the prior written consent of the other Party.\n7\nSection 4.8 Choice of Law/Venue. This Agreement will be governed by and construed and enforced in accordance with the internal laws of the\nState of California, without giving effect to the conflict of laws principles thereof. Each Party hereby submits to personal jurisdiction before any\ncourt of proper subject matter jurisdiction located in Los Angeles, California, to enforce the terms of this Agreement and waives any and all\nobjections to the jurisdiction and proper venue of such courts.\nSection 4.9 No Third Party Beneficiaries. There are no intended third party beneficiaries to this Agreement.\nSection 4.10 Designated Representative. Except as otherwise expressly permitted hereby, Counterparty agrees that all (i) contacts and\ncommunications with the Company or any of its Representatives regarding Review Material or the Possible Transaction, or otherwise relating to the\nCompany or its business, operations, prospects, assets or liabilities, (ii) requests for additional information from the Company or any of its\nRepresentatives, (iii) requests for on-site access or management meetings and (iv) discussions or questions regarding procedures, shall be submitted\nor directed solely to a designated representative of Lazard, or such other person, if any, as the Company may designate in writing from time to time\n(the “Designated Representative”). Without limiting the foregoing, Counterparty shall, and shall cause its Representatives to, not initiate or maintain\nany contact with any officer, director, employee or agent of the Company regarding any Review Material or otherwise relating to the Company or its\nbusiness, operations, prospects, assets or liabilities, or regarding any potential transaction involving the Company, without written consent from the\nDesignated Representative. In addition, and without limiting the foregoing, Counterparty and its Representatives shall not have any communications\n(orally or in writing or through any other means) with any member of the Gold Family or the Company’s CEO (either directly or through their\nrepresentatives or advisors) in their capacities as shareholders, other than as permitted by the Special Committee.\nThe prohibition hereunder on communicating with members of the Gold family and the Company’s CEO, in their capacities as shareholders,\nshall expire on the date three (3) weeks following the public announcement by the Special Committee that it has ceased to pursue a Possible\nTransaction or any strategic alternative for the Company, provided, that such expiration shall not otherwise affect any other provision of this\nAgreement.\n8\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective duly authorized officers as of the\ndate first written above.\n99¢ Only Stores\nBy: /s/ Marvin L. Holen\nIts: Chairman of the Special Committee\nLeonard Green & Partners, L.P.\nBy: LGP Management, Inc.,\nits general partner\nBy: /s/ Michael Solomon\nIts: Partner\n9
+04139986fd9aaf6cb0c374a67d045478.pdf	effective_date jurisdiction party term	EX-10.17 9 dex1017.htm AT-WILL EMPLOYMENT, PROPRIETARY RIGHTS, NON-DISCLOSURE & NO\nCONFLICTS AGREEMENT\nExhibit 10.17\nAs a condition of my employment with Dolby Laboratories, Inc., its subsidiaries, affiliates, successors or assigns (together the “Company”), and in\nconsideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by Company, I agree to the\nfollowing, effective immediately prior to such time that the Securities and Exchange Commission declares the Company’s registration statement on\nForm S-1 effective (“Effective Time”):\nI. AT-WILL EMPLOYMENT\nI UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR AN UNSPECIFIED DURATION\nAND CONSTITUTES “AT-WILL” EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO THE CONTRARY IS\nUNAUTHORIZED AND NOT VALID UNLESS OBTAINED IN WRITING AND SIGNED BY THE PRESIDENT OF THE COMPANY. I\nACKNOWLEDGE THAT THIS EMPLOYMENT RELATIONSHIP MAY BE TERMINATED AT ANY TIME, WITH OR WITHOUT GOOD\nCAUSE OR FOR ANY OR NO CAUSE, AT THE OPTION EITHER OF THE COMPANY OR ME, WITH OR WITHOUT NOTICE.\nII. EMPLOYEE PROPRIETARY RIGHTS & NON -DISCLOSURE AGREEMENT\nI recognize that, as part of its business, it is important that the Company initiate, make and develop technological innovations and inventions,\ncreate copyrightable works, develop valuable information and trade secrets, and protect its legal rights in such matters. Therefore, in consideration of\nmy employment by the Company, I hereby agree:\n1. To maintain in strictest confidence, both during the term of my employment and thereafter, all confidential technical and business\ninformation, trade secrets, inventions and innovations and unpublished copyrightable works of the Company, its successors or assigns, and my co-\nworkers, either learned or developed by me during the term of my employment; and\n2. To promptly disclose and assign all rights to the Company, its successors or assigns, in any and all inventions or innovations that are\nconceived or first actually reduced to practice by me, either alone or jointly with others, during my term of employment by the Company after the\nEffective Time; except that I need not assign to the Company title in any invention or innovation that either:\na. does not relate at the time of conception or reduction to practice (1) to the business of the Company or (2) to the Company’s actual or\ndemonstrably anticipated research or development (collectively, the “Business”), or\nb. does not result from any work performed by me for the Company and was developed without using the Company’s equipment,\nsupplies, facilities, or trade-secret information, unless either (1) the invention relates at the time of conception or reduction to practice to the\nBusiness, or (2) full title in the United States to the invention is required by contract between the Company and the United States or any of its\nagencies.\nI understand that all those disclosures of my inventions and innovations made to the Company under this paragraph for which I need not assign title\nto the Company shall be received in confidence by the Company.\n3. That any inventions, products, processes, apparatus, designs, improvements, or business related suggestions and information conceived,\ndiscovered, made or developed by me, solely or jointly with others, after my termination of employment with the Company that includes or uses the\nfirm’s trade secrets or confidential information shall belong to the Company and I agree to assign any and all rights in such items to the Company.\n4. To promptly disclose to the Company all copyrightable works, including, but not limited to all computer programs and accessory materials,\ncreated by me, either alone or jointly with others, during my term of employment by the Company after the Effective Time resulting from work\nperformed by me for the Company; and to assign to the Company, its successors and assigns, the entire copyright in any and all such works and to\nexecute such instruments or transfer as the Company may require to perfect its proprietary interest in such copyrights under the Copyright Law of\nthe United States or otherwise, except that I need not assign to the Company the copyright in any work for which no trade secret information of the\nCompany was used which does not relate at the time of conception or reduction to practice (1) to the business of the Company or (2) to the\nCompany’s actual or demonstrably anticipated research or development.\n5. To execute all documents which the firm may consider necessary to carry out this Agreement, including domestic and foreign patent\napplications prepared at the expense of the firm and formal assignments to the firm of all rights in such inventions and patent applications and the\npatents issued thereon together with all divisions, continuations, and reissues thereof, to submit to a reasonable and confidential review process\nunder which the firm may determine any issues as may arise under this Agreement.\n6. That any breaches of this Agreement pertaining to inventions and the like, confidential information, protected trade secrets and non-\nsolicitation will cause the firm irreparable injury and damages in an amount difficult to ascertain. Accordingly, in addition to any other relief and\ndamages to which the firm may be entitled, I agree that the Company shall be entitled to temporary and permanent injunctive relief by any\ncompetent court.\n7. I understand this Agreement does not apply to an invention which qualifies fully under the provisions of California Labor Code section\n2870(a). That section provides:\nAny provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the\nemployee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information\nexcept for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer’s business,\nor actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for\nthe employer.\nIII. COMPANY COVENANTS\nThe Company agrees that I may use the Company’s equipment, supplies, and facilities to conduct research and development on my own behalf\n(“RMD R&D”) and that, if during my employment with the Company, I conceive or reduce to practice an invention that I need not assign to the\nCompany under 2 above, including, without limitation, in the course of RMD R&D, all intellectual property rights in such invention shall belong to\nme and is not a work for hire and is not assigned to the Company pursuant to this Agreement.\nIV. CONFLICT OF INTEREST POLICY\nI agree to adhere to the Conflict of Interest Policy of Company as set forth in this Article IV; provided that it is understood that no conflict of\ninterest exists based on (i) my performance of RMD R&D under Article III of this Agreement, (ii) any agreements in place between the Company\nand me as of the Effective Time, (iii) any lease arrangements between the Company and me that are contemplated by the Company and me as of the\nEffective Time and any modification or renewal thereof; and (iv) my use, registration, or renewal of any form of the name “Dolby” in accordance\nwith Section 2.2(b) of the Asset Contribution Agreement entered into as of November 19, 2004.\nSubject to the foregoing:\nThe Company expects me to avoid situations that create an actual or potential conflict between personal interests and those of the Company. A\nconflict of interest exists when my loyalties or actions are divided between the Company and a competitor, business partner, collaborator,\nmanufacturer, supplier, licensee, or customer. If I am unsure whether a certain transaction, activity, or relationship constitutes a conflict of interest, I\nshall discuss it with a member of management for clarification. The President of the Company must approve any exceptions to this guideline. Some\nexamples of the more common conflicts that I must avoid include, but are not limited to:\n•\nWorking for a competitor, supplier, licensee, or customer while employed by the Company\n•\nEngaging in self-employment in competition with the Company or soliciting competitors or customers to participate in competing outside\nbusiness relationships\n•\nUsing proprietary or confidential Company information for personal gain or to the Company’s detriment\n•\nHaving a direct financial interest in a competitor, customer, licensee, or supplier that is greater than a 10% percent ownership\n•\nCommitting the Company to give its financial or other support to any outside activity or organization without appropriate authorization\n•\nAcquiring “Friends and Family” stock from licensees and/or other business partners\nAcceptance of Gifts and Gift-Giving\nSoliciting gifts, entertainment, favors, money, loans, credits, preferential discounts or services from competitors, customers, licensees,\nsuppliers, or potential suppliers is expressly prohibited.\nAccepting personal gifts or entertainment (such as another company’s stock, computer software, hardware) of significant value from\ncompetitors, customers, licensees, suppliers, or potential suppliers is also prohibited. It follows that accepting such gifts and reselling them for\npersonal gain is expressly prohibited.\nAcceptance of occasional personal gifts of nominal value (such as invitations to lunch, candy, food baskets, or flowers) from competitors,\ncustomers, licensees, suppliers, or potential suppliers is generally allowable. When it is deemed inappropriate to accept a gift, it should be declined\ngraciously.\nV. MISCELLANEOUS\n1. Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the State of California. The Company\nand I hereby expressly consent to the personal jurisdiction of the state and federal courts located in the City and County of San Francisco, California\nfor any lawsuit filed there against me by the Company arising from or relating to this Agreement.\n2. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and me relating to the subject\nmatter herein and supersedes as of the Effective Time all prior discussions, representations or agreements between us including, but not limited to,\nthe Employment Agreement between Dolby Laboratories, Inc. and me dated July 10, 1978, as amended. No modification of or amendment to this\nAgreement, nor any waiver of any rights under this Agreement, will be effective unless in writing signed by the President of the Company and me.\nAny subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.\n3. Severability. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will continue in full\nforce and effect.\n4. Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be\nfor the benefit of the Company, its successors, and its assigns.\nDate: November 19, 2004\n/s/ RAY DOLBY\nSignature\nRAY M. DOLBY\nACKNOWLEDGED AND AGREED:\nDolby Laboratories, Inc.\n/s/ N. W. JASPER, JR.\nWitness:\n/s/ LARA M. HOPWOOD\nSignature\nLara M. Hopwood\nName (typed or printed)	EX-10.17 9 dex1017.htm AT-WILL EMPLOYMENT, PROPRIETARY RIGHTS, NON-DISCLOSURE & NO\nCONFLICTS AGREEMENT\nExhibit 10.17\nAs a condition of my employment with Dolby Laboratories, Inc., its subsidiaries, affiliates, successors or assigns (together the “Company”), and in\nconsideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by Company, I agree to the\nfollowing, effective immediately prior to such time that the Securities and Exchange Commission declares the Company’s registration statement on\nForm S-1 effective (“Effective Time”):\nI. AT-WILL EMPLOYMENT\nI UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR AN UNSPECIFIED DURATION\nAND CONSTITUTES “AT-WILL” EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO THE CONTRARY IS\nUNAUTHORIZED AND NOT VALID UNLESS OBTAINED IN WRITING AND SIGNED BY THE PRESIDENT OF THE COMPANY. I\nACKNOWLEDGE THAT THIS EMPLOYMENT RELATIONSHIP MAY BE TERMINATED AT ANY TIME, WITH OR WITHOUT GOOD\nCAUSE OR FOR ANY OR NO CAUSE, AT THE OPTION EITHER OF THE COMPANY OR ME, WITH OR WITHOUT NOTICE.\nII. EMPLOYEE PROPRIETARY RIGHTS & NON-DISCLOSURE AGREEMENT\nI recognize that, as part of its business, it is important that the Company initiate, make and develop technological innovations and inventions,\ncreate copyrightable works, develop valuable information and trade secrets, and protect its legal rights in such matters. Therefore, in consideration of\nmy employment by the Company, I hereby agree:\n1. To maintain in strictest confidence, both during the term of my employment and thereafter, all confidential technical and business\ninformation, trade secrets, inventions and innovations and unpublished copyrightable works of the Company, its successors or assigns, and my co-\nworkers, either learned or developed by me during the term of my employment; and\n2. To promptly disclose and assign all rights to the Company, its successors or assigns, in any and all inventions or innovations that are\nconceived or first actually reduced to practice by me, either alone or jointly with others, during my term of employment by the Company after the\nEffective Time; except that I need not assign to the Company title in any invention or innovation that either:\na. does not relate at the time of conception or reduction to practice (1) to the business of the Company or (2) to the Company’s actual or\ndemonstrably anticipated research or development (collectively, the “Business™), or\nb. does not result from any work performed by me for the Company and was developed without using the Company’s equipment,\nsupplies, facilities, or trade-secret information, unless either (1) the invention relates at the time of conception or reduction to practice to the\nBusiness, or (2) full title in the United States to the invention is required by contract between the Company and the United States or any of its\nagencies.\nI understand that all those disclosures of my inventions and innovations made to the Company under this paragraph for which I need not assign title\nto the Company shall be received in confidence by the Company.\n3. That any inventions, products, processes, apparatus, designs, improvements, or business related suggestions and information conceived,\ndiscovered, made or developed by me, solely or jointly with others, after my termination of employment with the Company that includes or uses the\nfirm’s trade secrets or confidential information shall belong to the Company and I agree to assign any and all rights in such items to the Company.\n4. To promptly disclose to the Company all copyrightable works, including, but not limited to all computer programs and accessory materials,\ncreated by me, either alone or jointly with others, during my term of employment by the Company after the Effective Time resulting from work\nperformed by me for the Company; and to assign to the Company, its successors and assigns, the entire copyright in any and all such works and to\nexecute such instruments or transfer as the Company may require to perfect its proprietary interest in such copyrights under the Copyright Law of\nthe United States or otherwise, except that I need not assign to the Company the copyright in any work for which no trade secret information of the\nCompany was used which does not relate at the time of conception or reduction to practice (1) to the business of the Company or (2) to the\nCompany’s actual or demonstrably anticipated research or development.\n5. To execute all documents which the firm may consider necessary to carry out this Agreement, including domestic and foreign patent\napplications prepared at the expense of the firm and formal assignments to the firm of all rights in such inventions and patent applications and the\npatents issued thereon together with all divisions, continuations, and reissues thereof, to submit to a reasonable and confidential review process\nunder which the firm may determine any issues as may arise under this Agreement.\n6. That any breaches of this Agreement pertaining to inventions and the like, confidential information, protected trade secrets and non-\nsolicitation will cause the firm irreparable injury and damages in an amount difficult to ascertain. Accordingly, in addition to any other relief and\ndamages to which the firm may be entitled, I agree that the Company shall be entitled to temporary and permanent injunctive relief by any\ncompetent court.\n7.1 understand this Agreement does not apply to an invention which qualifies fully under the provisions of California Labor Code section\n2870(a). That section provides:\nAny provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the\nemployee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information\nexcept for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer’s business,\nor actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for\nthe employer.\nIII. COMPANY COVENANTS\nThe Company agrees that I may use the Company’s equipment, supplies, and facilities to conduct research and development on my own behalf\n(“RMD R&D”) and that, if during my employment with the Company, I conceive or reduce to practice an invention that I need not assign to the\nCompany under 2 above, including, without limitation, in the course of RMD R&D, all intellectual property rights in such invention shall belong to\nme and is not a work for hire and is not assigned to the Company pursuant to this Agreement.\nIV. CONFLICT OF INTEREST POLICY\nI agree to adhere to the Conflict of Interest Policy of Company as set forth in this Article IV; provided that it is understood that no conflict of\ninterest exists based on (i) my performance of RMD R&D under Article III of this Agreement, (ii) any agreements in place between the Company\nand me as of the Effective Time, (iii) any lease arrangements between the Company and me that are contemplated by the Company and me as of the\nEffective Time and any modification or renewal thereof; and (iv) my use, registration, or renewal of any form of the name “Dolby” in accordance\nwith Section 2.2(b) of the Asset Contribution Agreement entered into as of November 19, 2004.\nSubject to the foregoing:\nThe Company expects me to avoid situations that create an actual or potential conflict between personal interests and those of the Company. A\nconflict of interest exists when my loyalties or actions are divided between the Company and a competitor, business partner, collaborator,\nmanufacturer, supplier, licensee, or customer. If I am unsure whether a certain transaction, activity, or relationship constitutes a conflict of interest, I\nshall discuss it with a member of management for clarification. The President of the Company must approve any exceptions to this guideline. Some\nexamples of the more common conflicts that I must avoid include, but are not limited to:\n*  Working for a competitor, supplier, licensee, or customer while employed by the Company\n+  Engaging in self-employment in competition with the Company or soliciting competitors or customers to participate in competing outside\nbusiness relationships\n»  Using proprietary or confidential Company information for personal gain or to the Company’s detriment\n* Having a direct financial interest in a competitor, customer, licensee, or supplier that is greater than a 10% percent ownership\n*  Committing the Company to give its financial or other support to any outside activity or organization without appropriate authorization\n*  Acquiring “Friends and Family” stock from licensees and/or other business partners\nAcceptance of Gifts and Gift-Giving\nSoliciting gifts, entertainment, favors, money, loans, credits, preferential discounts or services from competitors, customers, licensees,\nsuppliers, or potential suppliers is expressly prohibited.\nAccepting personal gifts or entertainment (such as another company’s stock, computer software, hardware) of significant value from\ncompetitors, customers, licensees, suppliers, or potential suppliers is also prohibited. It follows that accepting such gifts and reselling them for\npersonal gain is expressly prohibited.\nAcceptance of occasional personal gifts of nominal value (such as invitations to lunch, candy, food baskets, or flowers) from competitors,\ncustomers, licensees, suppliers, or potential suppliers is generally allowable. When it is deemed inappropriate to accept a gift, it should be declined\ngraciously.\nV.  MISCELLANEOUS\n1. Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the State of California. The Company\nand I hereby expressly consent to the personal jurisdiction of the state and federal courts located in the City and County of San Francisco, California\nfor any lawsuit filed there against me by the Company arising from or relating to this Agreement.\n2. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and me relating to the subject\nmatter herein and supersedes as of the Effective Time all prior discussions, representations or agreements between us including, but not limited to,\nthe Employment Agreement between Dolby Laboratories, Inc. and me dated July 10, 1978, as amended. No modification of or amendment to this\nAgreement, nor any waiver of any rights under this Agreement, will be effective unless in writing signed by the President of the Company and me.\nAny subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.\n3. Severability. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will continue in full\nforce and effect.\n4. Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be\nfor the benefit of the Company, its successors, and its assigns.\nDate: November 19, 2004\nACKNOWLEDGED AND AGREED:\nDolby Laboratories, Inc.\n/s/ N.W. JASPER, JR.\nWitness:\n/s/  LARA M. HOPWOOD\nSignature\nLara M. Hopwood\nName (typed or printed)\nSignature\nRAY M. DOLBY\n/s/  RAY DOLBY	EX-10.17 9 lex1017.htm 1017. htm AT-WILL EMPLOYMENT, PROPRIETARY RIGHTS, NON-DISCLOSURE & NO\nCONFLICTS AGREEMENT\nExhibit 10.17\nAs a condition of my employment with Dolby Laboratories, Inc., its subsidiaries, affiliates, successors or assigns (together the "Company"), and in\nconsideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by Company, I agree to the\nfollowing, effective immediately prior to such time that the Securities and Exchange Commission declares the Company's registration statement on\nForm S-1 effective ("Effective Time"):\nI.\nAT-WILL EMPLOYMENT\nI UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR AN UNSPECIFIED DURATION\nAND CONSTITUTES "AT-WILL" EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO THE CONTRARY IS\nUNAUTHORIZED AND NOT VALID UNLESS OBTAINED IN WRITING AND SIGNED BY THE PRESIDENT OF THE COMPANY. I\nACKNOWLEDGE THAT THIS EMPLOYMENT RELATIONSHIP MAY BE TERMINATED AT ANY TIME, WITH OR WITHOUT GOOD\nCAUSE OR FOR ANY OR NO CAUSE, AT THE OPTION EITHER OF THE COMPANY OR ME, WITH OR WITHOUT NOTICE.\nII. EMPLOYEE PROPRIETARY RIGHTS & NON-DISCLOSURE AGREEMENT\nI recognize that, as part of its business, it is important that the Company initiate, make and develop technological innovations and inventions,\ncreate copyrightable works, develop valuable information and trade secrets, and protect its legal rights in such matters. Therefore, in consideration of\nmy employment by the Company, I hereby agree:\n1. To maintain in strictest confidence, both during the term of my employment and thereafter, all confidential technical and business\ninformation, trade secrets, inventions and innovations and unpublished copyrightable works of the Company, its successors or assigns, and my co-\nworkers, either learned or developed by me during the term of my employment; and\n2. To promptly disclose and assign all rights to the Company, its successors or assigns, in any and all inventions or innovations that are\nconceived or first actually reduced to practice by me, either alone or jointly with others, during my term of employment by the Company after the\nEffective Time; except that I need not assign to the Company title in any invention or innovation that either:\na. does not relate at the time of conception or reduction to practice (1) to the business of the Company or (2) to the Company's actual or\ndemonstrably anticipated research or development (collectively, the "Business"), or\nb. does not result from any work performed by me for the Company and was developed without using the Company's equipment,\nsupplies, facilities, or trade-secret information, unless either (1) the invention relates at the time of conception or reduction to practice to\nthe\nBusiness, or (2) full title in the United States to the invention is required by contract between the Company and the United States or any of\nits\nagencies.\nI understand that all those disclosures of my inventions and innovations made to the Company under this paragraph for which I need not assign title\nto the Company shall be received in confidence by the Company.\n3. That any inventions, products, processes, apparatus, designs, improvements, or business related suggestions and information conceived,\ndiscovered, made or developed by me, solely or jointly with others, after my termination of employment with the Company that includes or uses the\nfirm's trade secrets or confidential information shall belong to the Company and I agree to assign any and all rights in such items to the Company.\n4. To promptly disclose to the Company all copyrightable works, including, but not limited to all computer programs and accessory materials,\ncreated by me, either alone or jointly with others, during my term of employment by the Company after the Effective Time resulting from work\nperformed by me for the Company; and to assign to the Company, its successors and assigns, the entire copyright in any and all such works and to\nexecute such instruments or transfer as the Company may require to perfect its proprietary interest in such copyrights under the Copyright Law of\nthe United States or otherwise, except that I need not assign to the Company the copyright in any work for which no trade secret information of the\nCompany was used which does not relate at the time of conception or reduction to practice (1) to the business of the Company or (2) to the\nCompany's actual or demonstrably anticipated research or development.\n5. To execute all documents which the firm may consider necessary to carry out this Agreement, including domestic and foreign patent\napplications prepared at the expense of the firm and formal assignments to the firm of all rights in such inventions and patent applications and the\npatents issued thereon together with all divisions, continuations, and reissues thereof, to submit to a reasonable and confidential review process\nunder which the firm may determine any issues as may arise under this Agreement.\n6. That any breaches of this Agreement pertaining to inventions and the like, confidential information, protected trade secrets and non-\nsolicitation will cause the firm irreparable injury and damages in an amount difficult to ascertain. Accordingly, in addition to any other relief and\ndamages to which the firm may be entitled, I agree that the Company shall be entitled to temporary and permanent injunctive relief by any\ncompetent court.\n7. I understand this Agreement does not apply to an invention which qualifies fully under the provisions of California Labor Code section\n2870(a) That section provides:\nAny provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the\nemployee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information\nexcept for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer's business,\nor actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for\nthe employer.\nIII. COMPANY COVENANTS\nThe Company agrees that I may use the Company's equipment, supplies, and facilities to conduct research and development on my own behalf\n("RMD R&D") and that, if during my employment with the Company, I conceive or reduce to practice an invention that I need not assign to the\nCompany under 2 above, including, without limitation, in the course of RMD R&D, all intellectual property rights in such invention shall belong\nto\nme and is not a work for hire and is not assigned to the Company pursuant to this Agreement.\nIV. CONFLICT OF INTEREST POLICY\nI agree to adhere to the Conflict of Interest Policy of Company as set forth in this Article IV; provided that it is understood that no conflict of\ninterest exists based on (i) my performance of RMD R&D under Article III of this Agreement, (ii) any agreements in place between the Company\nand me as of the Effective Time, (iii) any lease arrangements between the Company and me that are contemplated by the Company and me as of the\nEffective Time and any modification or renewal thereof; and (iv) my use, registration, or renewal of any form of the name "Dolby" in accordance\nwith Section 2.2(b) of the Asset Contribution Agreement entered into as of November 19, 2004.\nSubject to the foregoing:\nThe Company expects me to avoid situations that create an actual or potential conflict between personal interests and those of the Company. A\nconflict of interest exists when my loyalties or actions are divided between the Company and a competitor, business partner, collaborator,\nmanufacturer, supplier, licensee, or customer. If I am unsure whether a certain transaction, activity, or relationship constitutes a conflict of interest, I\nshall discuss it with a member of management for clarification The President of the Company must approve any exceptions to this guideline. Some\nexamples of the more common conflicts that I must avoid include, but are not limited to:\nWorking for a competitor, supplier, licensee, or customer while employed by the Company\nEngaging in self-employment in competition with the Company or soliciting competitors or customers to participate in competing outside\nbusiness relationships\nUsing proprietary or confidential Company information for personal gain or to the Company's detriment\nHaving a direct financial interest in a competitor, customer, licensee, or supplier that is greater than a 10% percent ownership\nCommitting the Company to give its financial or other support to any outside activity or organization without appropriate authorization\nAcquiring "Friends and Family" stock from licensees and/or other business partners\nAcceptance of Gifts and Gift-Giving\nSoliciting gifts, entertainment, favors, money, loans, credits, preferential discounts or services from competitors, customers, licensees,\nsuppliers, or potential suppliers is expressly prohibited.\nAccepting personal gifts or entertainment (such as another company's stock, computer software, hardware) of significant value from\ncompetitors, customers, licensees, suppliers, or potential suppliers is also prohibited. It follows that accepting such gifts and reselling them for\npersonal gain is expressly prohibited.\nAcceptance of occasional personal gifts of nominal value (such as invitations to lunch, candy, food baskets, or flowers) from competitors,\ncustomers, licensees, suppliers, or potential suppliers is generally allowable. When it is deemed inappropriate to accept a gift, it should be declined\ngraciously.\nV. MISCELLANEOUS\n1. Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the State of California. The Company\nand I hereby expressly consent to the personal jurisdiction of the state and federal courts located in the City and County of San Francisco, California\nfor any lawsuit filed there against me by the Company arising from or relating to this Agreement.\n2. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and me relating to the subject\nmatter\nherein and supersedes as of the Effective Time all prior discussions, representations or agreements between us including, but not limited to,\nthe Employment Agreement between Dolby Laboratories, Inc. and me dated July 10, 1978, as amended. No modification of or amendment to this\nAgreement, nor any waiver of any rights under this Agreement, will be effective unless in writing signed by the President of the Company and me.\nAny subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.\n3.\nSeverability. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will continue in full\nforce and effect.\n4. Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be\nfor the benefit of the Company, its successors, and its assigns.\nDate: November 19, 2004\n/s/ RAY DOLBY\nSignature\nRAY M. DOLBY\nACKNOWLEDGED AND AGREED:\nDolby Laboratories, Inc.\n/s/ N. W. JASPER, JR.\nWitness:\n/s/ LARA M. HOPWOoD\nSignature\nLara M. Hopwood\nName (typed or printed)	EX-10.17 9 dex1017.htm AT-WILL EMPLOYMENT, PROPRIETARY RIGHTS, NON-DISCLOSURE & NO\nCONFLICTS AGREEMENT\nExhibit 10.17\nAs a condition of my employment with Dolby Laboratories, Inc., its subsidiaries, affiliates, successors or assigns (together the “Company”), and in\nconsideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by Company, I agree to the\nfollowing, effective immediately prior to such time that the Securities and Exchange Commission declares the Company’s registration statement on\nForm S-1 effective (“Effective Time”):\nI. AT-WILL EMPLOYMENT\nI UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR AN UNSPECIFIED DURATION\nAND CONSTITUTES “AT-WILL” EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO THE CONTRARY IS\nUNAUTHORIZED AND NOT VALID UNLESS OBTAINED IN WRITING AND SIGNED BY THE PRESIDENT OF THE COMPANY. I\nACKNOWLEDGE THAT THIS EMPLOYMENT RELATIONSHIP MAY BE TERMINATED AT ANY TIME, WITH OR WITHOUT GOOD\nCAUSE OR FOR ANY OR NO CAUSE, AT THE OPTION EITHER OF THE COMPANY OR ME, WITH OR WITHOUT NOTICE.\nII. EMPLOYEE PROPRIETARY RIGHTS & NON -DISCLOSURE AGREEMENT\nI recognize that, as part of its business, it is important that the Company initiate, make and develop technological innovations and inventions,\ncreate copyrightable works, develop valuable information and trade secrets, and protect its legal rights in such matters. Therefore, in consideration of\nmy employment by the Company, I hereby agree:\n1. To maintain in strictest confidence, both during the term of my employment and thereafter, all confidential technical and business\ninformation, trade secrets, inventions and innovations and unpublished copyrightable works of the Company, its successors or assigns, and my co-\nworkers, either learned or developed by me during the term of my employment; and\n2. To promptly disclose and assign all rights to the Company, its successors or assigns, in any and all inventions or innovations that are\nconceived or first actually reduced to practice by me, either alone or jointly with others, during my term of employment by the Company after the\nEffective Time; except that I need not assign to the Company title in any invention or innovation that either:\na. does not relate at the time of conception or reduction to practice (1) to the business of the Company or (2) to the Company’s actual or\ndemonstrably anticipated research or development (collectively, the “Business”), or\nb. does not result from any work performed by me for the Company and was developed without using the Company’s equipment,\nsupplies, facilities, or trade-secret information, unless either (1) the invention relates at the time of conception or reduction to practice to the\nBusiness, or (2) full title in the United States to the invention is required by contract between the Company and the United States or any of its\nagencies.\nI understand that all those disclosures of my inventions and innovations made to the Company under this paragraph for which I need not assign title\nto the Company shall be received in confidence by the Company.\n3. That any inventions, products, processes, apparatus, designs, improvements, or business related suggestions and information conceived,\ndiscovered, made or developed by me, solely or jointly with others, after my termination of employment with the Company that includes or uses the\nfirm’s trade secrets or confidential information shall belong to the Company and I agree to assign any and all rights in such items to the Company.\n4. To promptly disclose to the Company all copyrightable works, including, but not limited to all computer programs and accessory materials,\ncreated by me, either alone or jointly with others, during my term of employment by the Company after the Effective Time resulting from work\nperformed by me for the Company; and to assign to the Company, its successors and assigns, the entire copyright in any and all such works and to\nexecute such instruments or transfer as the Company may require to perfect its proprietary interest in such copyrights under the Copyright Law of\nthe United States or otherwise, except that I need not assign to the Company the copyright in any work for which no trade secret information of the\nCompany was used which does not relate at the time of conception or reduction to practice (1) to the business of the Company or (2) to the\nCompany’s actual or demonstrably anticipated research or development.\n5. To execute all documents which the firm may consider necessary to carry out this Agreement, including domestic and foreign patent\napplications prepared at the expense of the firm and formal assignments to the firm of all rights in such inventions and patent applications and the\npatents issued thereon together with all divisions, continuations, and reissues thereof, to submit to a reasonable and confidential review process\nunder which the firm may determine any issues as may arise under this Agreement.\n6. That any breaches of this Agreement pertaining to inventions and the like, confidential information, protected trade secrets and non-\nsolicitation will cause the firm irreparable injury and damages in an amount difficult to ascertain. Accordingly, in addition to any other relief and\ndamages to which the firm may be entitled, I agree that the Company shall be entitled to temporary and permanent injunctive relief by any\ncompetent court.\n7. I understand this Agreement does not apply to an invention which qualifies fully under the provisions of California Labor Code section\n2870(a). That section provides:\nAny provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the\nemployee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information\nexcept for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer’s business,\nor actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for\nthe employer.\nIII. COMPANY COVENANTS\nThe Company agrees that I may use the Company’s equipment, supplies, and facilities to conduct research and development on my own behalf\n(“RMD R&D”) and that, if during my employment with the Company, I conceive or reduce to practice an invention that I need not assign to the\nCompany under 2 above, including, without limitation, in the course of RMD R&D, all intellectual property rights in such invention shall belong to\nme and is not a work for hire and is not assigned to the Company pursuant to this Agreement.\nIV. CONFLICT OF INTEREST POLICY\nI agree to adhere to the Conflict of Interest Policy of Company as set forth in this Article IV; provided that it is understood that no conflict of\ninterest exists based on (i) my performance of RMD R&D under Article III of this Agreement, (ii) any agreements in place between the Company\nand me as of the Effective Time, (iii) any lease arrangements between the Company and me that are contemplated by the Company and me as of the\nEffective Time and any modification or renewal thereof; and (iv) my use, registration, or renewal of any form of the name “Dolby” in accordance\nwith Section 2.2(b) of the Asset Contribution Agreement entered into as of November 19, 2004.\nSubject to the foregoing:\nThe Company expects me to avoid situations that create an actual or potential conflict between personal interests and those of the Company. A\nconflict of interest exists when my loyalties or actions are divided between the Company and a competitor, business partner, collaborator,\nmanufacturer, supplier, licensee, or customer. If I am unsure whether a certain transaction, activity, or relationship constitutes a conflict of interest, I\nshall discuss it with a member of management for clarification. The President of the Company must approve any exceptions to this guideline. Some\nexamples of the more common conflicts that I must avoid include, but are not limited to:\n•\nWorking for a competitor, supplier, licensee, or customer while employed by the Company\n•\nEngaging in self-employment in competition with the Company or soliciting competitors or customers to participate in competing outside\nbusiness relationships\n•\nUsing proprietary or confidential Company information for personal gain or to the Company’s detriment\n•\nHaving a direct financial interest in a competitor, customer, licensee, or supplier that is greater than a 10% percent ownership\n•\nCommitting the Company to give its financial or other support to any outside activity or organization without appropriate authorization\n•\nAcquiring “Friends and Family” stock from licensees and/or other business partners\nAcceptance of Gifts and Gift-Giving\nSoliciting gifts, entertainment, favors, money, loans, credits, preferential discounts or services from competitors, customers, licensees,\nsuppliers, or potential suppliers is expressly prohibited.\nAccepting personal gifts or entertainment (such as another company’s stock, computer software, hardware) of significant value from\ncompetitors, customers, licensees, suppliers, or potential suppliers is also prohibited. It follows that accepting such gifts and reselling them for\npersonal gain is expressly prohibited.\nAcceptance of occasional personal gifts of nominal value (such as invitations to lunch, candy, food baskets, or flowers) from competitors,\ncustomers, licensees, suppliers, or potential suppliers is generally allowable. When it is deemed inappropriate to accept a gift, it should be declined\ngraciously.\nV. MISCELLANEOUS\n1. Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the State of California. The Company\nand I hereby expressly consent to the personal jurisdiction of the state and federal courts located in the City and County of San Francisco, California\nfor any lawsuit filed there against me by the Company arising from or relating to this Agreement.\n2. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and me relating to the subject\nmatter herein and supersedes as of the Effective Time all prior discussions, representations or agreements between us including, but not limited to,\nthe Employment Agreement between Dolby Laboratories, Inc. and me dated July 10, 1978, as amended. No modification of or amendment to this\nAgreement, nor any waiver of any rights under this Agreement, will be effective unless in writing signed by the President of the Company and me.\nAny subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.\n3. Severability. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will continue in full\nforce and effect.\n4. Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be\nfor the benefit of the Company, its successors, and its assigns.\nDate: November 19, 2004\n/s/ RAY DOLBY\nSignature\nRAY M. DOLBY\nACKNOWLEDGED AND AGREED:\nDolby Laboratories, Inc.\n/s/ N. W. JASPER, JR.\nWitness:\n/s/ LARA M. HOPWOOD\nSignature\nLara M. Hopwood\nName (typed or printed)
+04bf0791804e8487c91ab84eaa47a335.pdf	effective_date jurisdiction party term	EX-99. (E) (1) 4 dex99e1.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (e)(1)\nMUTUAL NON-DISCLOSURE AGREEMENT dated as of September 23, 2009 (this “Agreement”) among ALTIMO HOLDINGS &\nINVESTMENTS LIMITED, a company organized under the laws of the British Virgin Islands (“Altimo”), TELENOR ASA, a company organized\nunder the laws of Norway (“Telenor”), and OPEN JOINT STOCK COMPANY “VIMPEL-COMMUNICATIONS”, an open joint stock company\norganized under the laws of the Russian Federation (“VimpelCom” and, together with Altimo and Telenor, collectively, the “Parties” and each,\nindividually, a “Party”).\nWHEREAS, Altimo, Telenor and VimpelCom are currently discussing and evaluating a possible transaction (the “Transaction”) between\nAltimo, Telenor and VimpelCom, with respect to Altimo and Telenor’s respective indirect shareholdings in VimpelCom and Closed Joint Stock\nCompany “Kyivstar G.S .M.,” a closed joint stock company organized under the laws of Ukraine (“Kyivstar”);\nNOW, THEREFORE, it is hereby agreed by the Parties as follows:\n1. Each Party agrees that Information (as defined below) will be kept confidential by such Party and its Representatives and will not be\ndisclosed or divulged to any other Person (as defined below) without the express prior written consent of the other Parties. Nothing in this\nAgreement shall preclude a Party or its Representatives (as defined below) from disclosing Information which (a) is or becomes generally available\nin the public domain other than as a result of a disclosure by the Party or its Representatives receiving the Information in violation of the terms of\nthis Agreement, (b) was available to such Party or its Representatives on a non-confidential basis prior to its disclosure, (c) becomes available to\nsuch Party or it Representatives on a non-confidential basis from a source other than another Party or its Representatives or Kyivstar, provided that\nsuch source was not known by such Party (after making appropriate inquiries) to be prohibited from disclosing such Information by a contractual or\nlegal obligation to another Party or its affiliates or (d) has been developed by such Party or its Representatives independently of any Information\nsupplied hereunder. As used herein, “Information” means (i) the fact that discussions or negotiations are taking place concerning the Transaction,\n(ii) any of the discussions, negotiations, terms, conditions or other facts with respect to the Transaction (including the status thereof), (iii) any non-\npublic, confidential or proprietary information received from any Party or its Representatives or Kyivstar, whether in oral, written, visual, magnetic,\nelectronic or other form and regardless of whether such information is specifically identified as “confidential”, together with any analyses,\ncompilations, studies or other documents which contain or otherwise reflect such information, and (iv) the existence and terms of this Agreement;\nand “Person” means any individual, governmental body (including, without limitation, any court or regulatory authority), arbitration tribunal,\npartnership, corporation, the media or any other entity.\n2. Each Party is permitted to disclose the Information only to those of its subsidiaries and affiliates and its and their respective directors,\nofficers, employees, attorneys, accountants, financial advisors, financing sources and other agents (collectively, a Party’s “Representatives”) who\nneed to know such Information for the purpose of facilitating the Transaction; provided that such Party shall inform its Representatives of the\nconfidential nature of such Information, shall provide them with a copy of this Agreement and shall direct them to treat such Information as\nconfidential in accordance with the terms hereof; and provided further that for purposes of the definition of “Representatives”, neither Telenor nor\nAltimo shall be deemed affiliates of VimpelCom.\n3. Each Party will be responsible for any breach by it or, if applicable, its Representatives of this Agreement. Each Party agrees to take all\nreasonable measures to restrain its Representatives from unauthorized disclosure or use of Information.\n4. Notwithstanding the foregoing or anything to the contrary in Section 13, a Party and its Representatives may disclose any Information to\nsatisfy a deposition, interrogatory, discovery request, subpoena, civil investigation claim or other similar process of a legal demand by a competent\ncourt of law or governmental body, provided, however, that in such circumstances, the Party or Representative seeking to disclose (the “Disclosing\nParty”) shall, to the extent practicable, advise the other Parties (the “Other Parties”) prior to disclosure so that the Other Parties have an\nopportunity to seek a protective order or otherwise defend, limit or protect against such\nproduction or disclosure; provided further that the Disclosing Party shall disclose only that portion of the Information which is legally required to be\ndisclosed. Notwithstanding anything to the contrary in Section 1 or Section 13, a Party and its Representatives may disclose any Information (as\nprovided in sub-clauses (i), (ii) and (iv) only of the definition of “Information”) regarding the Transaction (a) if it determines that such disclosure is\nnecessary in accordance with the requirements of any applicable law or regulation of any governmental entity having jurisdiction over such Party or\nRepresentative or of any stock exchange on which VimpelCom or Telenor’s respective securities are listed, provided the Disclosing Party shall give\nthe Other Parties reasonable advance notice and opportunity to comment on the content of the disclosure or (b) to the extent necessary, to any\ngovernmental or regulatory authority whose approval, whether formal or informal, is required in order to complete the Transaction, provided that the\nDisclosing Party shall inform the Other Parties of the nature and content of such disclosure, as well as the details of the governmental or regulatory\nauthority to whom such disclosure has been made.\n5. Each Party represents that it is familiar with the United States Securities Exchange Act of 1934, as amended, the rules and regulations\nthereunder and related legislation and principles of common law forbidding insider trading of securities. Telenor and Altimo agree that until the\nearlier of: (i) the signing of the definitive Transaction documentation or (ii) the receipt of a notice from either Altimo or Telenor that it terminates\nfurther discussions of the Transaction, each of Telenor and Altimo shall refrain, and shall cause its respective directly controlled affiliates to refrain,\nfrom trading equity securities of VimpelCom; provided, however, that this restriction shall not apply to Alfa Bank’s brokerage business; and\nprovided further that VimpelCom shall not be deemed a controlled affiliate of either Telenor or Altimo for purposes of this Section 5. For the\navoidance of doubt, this restriction does not apply to any transaction involving VimpelCom debt securities; nor shall this Agreement constitute an\namendment or waiver of any provision of the Registration Rights Agreement dated as of May 30, 2001 between and among Telenor East Invest AS,\nEco Telecom Limited and VimpelCom.\n6. No failure or delay by a Party in exercising any right, power, privilege or remedy hereunder shall operate as a waiver hereof nor shall any\nsingle or partial exercise thereof preclude any other or further exercise of any right, power, privilege or remedy hereunder. The Parties agree that\nmoney damages would not be a sufficient remedy for any breach of this Agreement by a Party or any of its Representatives. Such remedies shall not\nbe deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or in equity.\n7. This Agreement and any dispute, controversy or claim arising out of, relating to or in connection with this Agreement, or for the breach or\nalleged breach thereof (whether in contract, in tort or otherwise) shall be governed by, and construed in accordance with, the laws of the State of\nNew York, without giving effect to any conflicts of laws or other principles thereof that would result in the application of the laws of another\njurisdiction. For the avoidance of doubt, the parties confirm that they are fully familiar with the provisions of Section 5-1401 of the New York\nGeneral Obligations Law, and intend to bring this Agreement within the terms thereof.\n8. (a) Any and all disputes, controversies and claims between or among the Parties and arising under, relating to or in connection with, this\nAgreement, in any manner whatsoever, whether in contract, in tort, or otherwise, and including any dispute or controversy regarding the existence,\nvalidity or enforceability of this Agreement, or the arbitrability of any dispute, controversy or claim, and whether brought by a Party and/or any of its\nparents, subsidiaries, affiliates, officers, directors or agents, on the one hand, against a Party and/or any of its parents, subsidiaries, affiliates, officers,\ndirectors or agents, on the other hand, shall be settled by arbitration by a tribunal of three (3) arbitrators constituted and acting under the United\nNations Commission on International Trade Law (UNCITRAL) Arbitration Rules then in force (the “Rules”) in accordance with the following terms\nand conditions:\n(i) in the event of any conflict between the Rules and the provisions of this Agreement, the provisions of this Agreement shall prevail;\n(ii) (A) the seat of arbitration shall be London, England, unless otherwise agreed by the Parties, and the fact that hearings are held elsewhere\nshall not affect the seat of arbitration; and (B) notwithstanding\n2\nSection 7 hereof, the arbitration proceeding itself shall be governed by the Arbitration Act 1996 of the United Kingdom and the\nprocedural law of England relating to the conduct of arbitration proceedings;\n(iii) the following procedures shall govern the selection of arbitrators:\n(A) where there is only one claimant party and one respondent party, the claimant party shall appoint one arbitrator in accordance\nwith the Rules, the respondent party shall appoint one arbitrator in accordance with the Rules within thirty (30) days after the\nappointment of the first arbitrator, and the two arbitrators so appointed shall appoint the third (and presiding) arbitrator in\naccordance with the Rules within thirty (30) days after the appointment of the second arbitrator;\n(B) In the event of an inability by the two party–nominated arbitrators to agree on a third arbitrator in accordance with Section 8(a)\n(iii)(A) above, the appointing authority for the third arbitrator shall be the LCIA (the “LCIA”), acting in accordance with such\nrules as it may adopt for such purpose. The LCIA shall use its best efforts to appoint such third arbitrator within thirty (30) days\nof an application being made for such purpose.\n(C) Following the appointment by a claimant or claimants or a respondent or respondents of the first arbitrator in circumstances in\nwhich there is more than one claimant party or respondent party, the remaining claimants or respondents, as the case may be,\nshall attempt to agree between or among themselves on the appointment of a second arbitrator within thirty (30) days after the\nappointment of the first arbitrator, and to appoint such individual to serve as the second arbitrator. Should they (i) fail to so agree,\nand (ii) provide written notice of such disagreement within (30) days of the appointment of the first arbitrator, then, within ten\n(10) days after the date of the first such notice, any such claimant or respondent may nominate a candidate to serve as the second\narbitrator. Within thirty (30) days after the end of such ten (10) day period for nominations, the LCIA shall choose one of the\ncandidates so nominated to serve as the second arbitrator, in accordance with such rules as it may adopt for such purpose. The\narbitration (including with respect to the appointment of the third arbitrator) shall thereafter proceed in accordance with this\nSection 8.\n(iv) The English language shall be used as the written and spoken language for the arbitration proceeding and all matters connected to the\narbitration proceeding.\n(v) The arbitral tribunal shall have the power to grant any remedy or relief that it deems just and equitable and that is in accordance with the\nterms of this Agreement, including specific performance, and including, but not limited to, injunctive relief, whether interim or final, and\nany such relief and any interim, provisional or conservatory measure ordered by the arbitral tribunal may be specifically enforced by any\ncourt of competent jurisdiction. Each party to the arbitration proceeding retains the right to seek interim, provisional or conservatory\nmeasures in accordance with Section 8(c), and any such request shall not be deemed incompatible with the agreement to arbitrate or\nconstitute a waiver of the right to arbitrate.\n(vi) The award of the arbitral tribunal shall be final and binding on the parties to the arbitration proceeding.\n(vii) The award of the arbitral tribunal may be enforced by any court of competent jurisdiction and may be executed against the person and\nassets of the losing party in any competent jurisdiction. For the avoidance of doubt, the parties acknowledge and agree that a court of any\njurisdiction where the assets of a party against which enforcement is sought may be found is a court of competent jurisdiction, and the\nparties irrevocably consent to the exercise of personal jurisdiction in any such court.\n(b) Except for arbitration proceedings pursuant to Section 8(a), no action, lawsuit or other proceeding (other than proceedings for the\nconfirmation or enforcement of an arbitration award, an action to compel arbitration or an application for interim, provisional or\nconservatory measures in connection with the arbitration) shall be brought by or between the Parties in connection with any\nmatter arising out of or in connection with this Agreement. Each Party irrevocably waives any right under the Arbitration Act\n1996 of the United Kingdom to appeal any arbitration award to, or\n3\nto seek determination of any question of law arising in the course of arbitration from, the Commercial Court.\n(c) Each Party hereby irrevocably submits to (i) the non-exclusive jurisdiction of the Commercial Court in London, England in\nconnection with any proceeding for the confirmation or enforcement of an arbitration award, and (ii) the exclusive jurisdiction of\nthe Commercial Court in London, England in connection with any application for interim, provisional or conservatory measures\nin connection with an arbitration (in each case, as referred to in Section 8(b) above) or an action to compel arbitration (provided\nthat each Party retains the right to file a motion to compel arbitration (or its equivalent) in a court other than the Commercial\nCourt in London, England in response to an action commenced or a motion or application made by another Party or its agents,\naffiliates or representatives in such other court). Notwithstanding the foregoing, each Party agrees that it shall not, directly or\nindirectly, whether through any agent, affiliate, representative or otherwise, apply for any interim, provisional or conservatory\nmeasures in connection with an arbitration before any court located in the United States, the Russian Federation or Ukraine;\nprovided, however, that nothing in this Section 8(c) shall preclude, in any manner whatsoever, any Party from seeking any such\nmeasure based upon (A) any order or judgment, whether provisional or final, of any English court or (B) any order, directive,\naward or ruling, whether interim or final, of any arbitral tribunal in any arbitration proceeding hereunder. Each Party hereby\nirrevocably waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying\nof the venue of any such action, suit or proceeding brought in the Commercial Court and any claim that any such action, suit or\nproceeding brought in the Commercial Court has been brought in any inconvenient forum. Nothing herein shall affect the right of\nany Party to serve process in any other manner permitted by applicable law or to commence legal proceedings or otherwise\nproceed against another Party in any other jurisdiction in a manner not inconsistent with this Section 8(c).\n9. The provisions of this Agreement may not be amended, modified, supplemented or terminated without the prior written agreement of all\nParties, and waivers or consents to departures from the provisions hereof may not be given, except by written instrument duly executed by the Party\nagainst which enforcement of such waiver or consent to departure is sought. Altimo and certain of its affiliates, on the one hand, and Telenor and\ncertain of its affiliates, on the other, are parties to certain litigations and arbitrations in the United States, Switzerland, Russia and Ukraine concerning\ntheir rights and obligations with respect to their respective shareholdings in Kyivstar and VimpelCom (each, a “Dispute”, and, collectively, the\n“Disputes”). Nothing in this Agreement shall limit or prevent Altimo, Telenor or any of their respective affiliates from continuing to prosecute or\ndefend any of the Disputes, and any Dispute may continue to be prosecuted or defended as if this Agreement did not exist (provided, however, that\nany Information received from VimpelCom or its Representatives will continue to be provided the protections afforded such Information under this\nAgreement). Each of Altimo and Telenor agrees not to seek, or permit any of its respective affiliates to seek, a dismissal, stay, postponement or\nsimilar other relief in any Dispute by reason (in whole or in part) of this Agreement or any discussions concerning the Transaction. Nothing in this\nAgreement constitutes a commitment by any Party or its Representatives to enter into the Transaction and all discussions between the Parties and\ntheir respective Representatives with regard to the Transaction remain subject to definitive written agreements being entered into by the Parties or\ntheir affiliates in respect of the Transaction.\n10. If it is found in a final judgment by an arbitral tribunal or a court of competent jurisdiction (not subject to further appeal) that any term or\nprovision hereof is invalid or unenforceable, (a) the remaining terms and provisions hereof shall be unimpaired and shall remain in full force and\neffect and (b) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes\nclosest to expressing the intention of such invalid or unenforceable term or provision.\n11. Neither this Agreement nor any right, interest or obligation hereunder may be assigned by a Party without the prior written consent of the\nother Parties and any attempt to do so will be void. Subject to the\n4\npreceding sentence, this Agreement is binding upon, inures to the benefit of and is enforceable by the Parties and their respective successors and\nassigns. The terms and provisions of this Agreement are intended solely for the benefit of each Party and their respective successors or permitted\nassigns, and it is not the intention of the Parties to confer third party beneficiary rights upon any other Person.\n12. This Agreement shall become effective on the date hereof and shall continue until the earlier of (i) the signing of the definitive Transaction\ndocumentation, (ii) a period of twelve (12) months from the execution date of this Agreement, and (iii) the written agreement of the Parties to\nterminate this Agreement. The Information disclosed to the Parties shall be treated as confidential in accordance with this Agreement for a period of\ntwo (2) years from the date of termination of this Agreement. The provisions of Sections 6-11 hereof and this Section 12 shall survive any\ntermination of this Agreement. The provisions of this Agreement shall become binding upon VimpelCom upon receipt of the approval of its board of\ndirectors, as required by applicable Russian law and VimpelCom’s charter in respect of interested party transactions.\n13. Subject to Section 4 hereof, each Party agrees that it shall, and shall cause its Representatives to, refrain from disclosing any information or\nmaking any statements regarding the Transaction in connection with the marketing of any securities issued in relation to the Transaction, including,\nwithout limitation, during any “road show” or any appearance before rating agencies, unless the form and content of such disclosure has been\nreviewed and agreed to by the other Parties.\n14. Any notice, request, consent, waiver or other communication required or permitted hereunder shall be effective only if it is in writing and\npersonally delivered or sent by facsimile or sent, postage prepaid, by registered or certified mail, return receipt requested, or by recognized overnight\ncourier service, postage or other charges prepaid, and shall be deemed given when so delivered by hand or facsimile, or when received if sent by\nmail or by courier, as follows:\nIf to Altimo:\nSavvinskaya nab., 11\nMoscow 119435\nRussia\nFacsimile No.: +7 495 981 44 88\nAttention: Yuri Musatov\nIf to Telenor:\nAdvokatene i Telenor\nSnarøyveien 30\nN1331 Fornebu\nNorway\nFacsimile No.: +47 67 89 24 32\nAttention: Bjørn Hogstad\nIf to VimpelCom:\n4 Krasnoproletarskaya Street\nMoscow 127006\nRussia\nFacsimile No.: +7(909) 991-7903\nAttention: Jeff McGhie\nor such other person or address as the addressee may have specified in a notice duly given to the sender as provided herein.\n5\nIN WITNESS WHEREOF, this Mutual Non-Disclosure Agreement has been duly executed and delivered by each Party as of the date first\nabove written.\nALTIMO HOLDINGS & INVESTMENT LIMITED\nBy: /s/ Franz Wolf\nName: Franz Wolf\nTitle: Director\nTELENOR ASA\nBy: /s/ Trond Westlie\nName: Trond Westlie\nTitle: EVP and CFO\nOPEN JOINT STOCK COMPANY “VIMPEL-\nCOMMUNICATIONS”\nBy: /s/ Jeffrey D. McGhie\nName: Jeffrey D. McGhie\nTitle: Vice President, General Counsel\n6	EX-99. (E) (1) 4 dex99e1.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (e)(1)\nMUTUAL NON-DISCLOSURE AGREEMENT dated as of September 23, 2009 (this “Agreement”) among ALTIMO HOLDINGS &\nINVESTMENTS LIMITED, a company organized under the laws of the British Virgin Islands (“Altimo”), TELENOR ASA, a company organized\nunder the laws of Norway (“Telenor”), and OPEN JOINT STOCK COMPANY “VIMPEL-COMMUNICATIONS”, an open joint stock company\norganized under the laws of the Russian Federation (“VimpelCom” and, together with Altimo and Telenor, collectively, the “Parties” and each,\nindividually, a “Party”).\nWHEREAS, Altimo, Telenor and VimpelCom are currently discussing and evaluating a possible transaction (the “Transaction”) between\nAltimo, Telenor and VimpelCom, with respect to Altimo and Telenor’s respective indirect shareholdings in VimpelCom and Closed Joint Stock\nCompany “Kyivstar G.S.M.,” a closed joint stock company organized under the laws of Ukraine (“Kyivstar”);\nNOW, THEREFORE, it is hereby agreed by the Parties as follows:\n1. Each Party agrees that Information (as defined below) will be kept confidential by such Party and its Representatives and will not be\ndisclosed or divulged to any other Person (as defined below) without the express prior written consent of the other Parties. Nothing in this\nAgreement shall preclude a Party or its Representatives (as defined below) from disclosing Information which (a) is or becomes generally available\nin the public domain other than as a result of a disclosure by the Party or its Representatives receiving the Information in violation of the terms of\nthis Agreement, (b) was available to such Party or its Representatives on a non-confidential basis prior to its disclosure, (c) becomes available to\nsuch Party or it Representatives on a non-confidential basis from a source other than another Party or its Representatives or Kyivstar, provided that\nsuch source was not known by such Party (after making appropriate inquiries) to be prohibited from disclosing such Information by a contractual or\nlegal obligation to another Party or its affiliates or (d) has been developed by such Party or its Representatives independently of any Information\nsupplied hereunder. As used herein, “Information” means (i) the fact that discussions or negotiations are taking place concerning the Transaction,\n(ii) any of the discussions, negotiations, terms, conditions or other facts with respect to the Transaction (including the status thereof), (iii) any non-\npublic, confidential or proprietary information received from any Party or its Representatives or Kyivstar, whether in oral, written, visual, magnetic,\nelectronic or other form and regardless of whether such information is specifically identified as “confidential”, together with any analyses,\ncompilations, studies or other documents which contain or otherwise reflect such information, and (iv) the existence and terms of this Agreement;\nand “Person” means any individual, governmental body (including, without limitation, any court or regulatory authority), arbitration tribunal,\npartnership, corporation, the media or any other entity.\n2. Each Party is permitted to disclose the Information only to those of its subsidiaries and affiliates and its and their respective directors,\nofficers, employees, attorneys, accountants, financial advisors, financing sources and other agents (collectively, a Party’s “Representatives”) who\nneed to know such Information for the purpose of facilitating the Transaction; provided that such Party shall inform its Representatives of the\nconfidential nature of such Information, shall provide them with a copy of this Agreement and shall direct them to treat such Information as\nconfidential in accordance with the terms hereof; and provided further that for purposes of the definition of “Representatives”, neither Telenor nor\nAltimo shall be deemed affiliates of VimpelCom.\n \n3. Each Party will be responsible for any breach by it or, if applicable, its Representatives of this Agreement. Each Party agrees to take all\nreasonable measures to restrain its Representatives from unauthorized disclosure or use of Information.\n4. Notwithstanding the foregoing or anything to the contrary in Section 13, a Party and its Representatives may disclose any Information to\nsatisfy a deposition, interrogatory, discovery request, subpoena, civil investigation claim or other similar process of a legal demand by a competent\ncourt of law or governmental body, provided, however, that in such circumstances, the Party or Representative seeking to disclose (the “Disclosing\nParty”) shall, to the extent practicable, advise the other Parties (the “Other Parties”) prior to disclosure so that the Other Parties have an\nopportunity to seek a protective order or otherwise defend, limit or protect against such\nproduction or disclosure; provided further that the Disclosing Party shall disclose only that portion of the Information which is legally required to be\ndisclosed. Notwithstanding anything to the contrary in Section 1 or Section 13, a Party and its Representatives may disclose any Information (as\nprovided in sub-clauses (i), (ii) and (iv) only of the definition of “Information”) regarding the Transaction (a) if it determines that such disclosure is\nnecessary in accordance with the requirements of any applicable law or regulation of any governmental entity having jurisdiction over such Party or\nRepresentative or of any stock exchange on which VimpelCom or Telenor’s respective securities are listed, provided the Disclosing Party shall give\nthe Other Parties reasonable advance notice and opportunity to comment on the content of the disclosure or (b) to the extent necessary, to any\ngovernmental or regulatory authority whose approval, whether formal or informal, is required in order to complete the Transaction, provided that the\nDisclosing Party shall inform the Other Parties of the nature and content of such disclosure, as well as the details of the governmental or regulatory\nauthority to whom such disclosure has been made.\n5. Each Party represents that it is familiar with the United States Securities Exchange Act of 1934, as amended, the rules and regulations\nthereunder and related legislation and principles of common law forbidding insider trading of securities. Telenor and Altimo agree that until the\nearlier of: (i) the signing of the definitive Transaction documentation or (ii) the receipt of a notice from either Altimo or Telenor that it terminates\nfurther discussions of the Transaction, each of Telenor and Altimo shall refrain, and shall cause its respective directly controlled affiliates to refrain,\nfrom trading equity securities of VimpelCom; provided, however, that this restriction shall not apply to Alfa Bank’s brokerage business; and\nprovided further that VimpelCom shall not be deemed a controlled affiliate of either Telenor or Altimo for purposes of this Section 5. For the\navoidance of doubt, this restriction does not apply to any transaction involving VimpelCom debt securities; nor shall this Agreement constitute an\namendment or waiver of any provision of the Registration Rights Agreement dated as of May 30, 2001 between and among Telenor East Invest AS,\nEco Telecom Limited and VimpelCom.\n6. No failure or delay by a Party in exercising any right, power, privilege or remedy hereunder shall operate as a waiver hereof nor shall any\nsingle or partial exercise thereof preclude any other or further exercise of any right, power, privilege or remedy hereunder. The Parties agree that\nmoney damages would not be a sufficient remedy for any breach of this Agreement by a Party or any of its Representatives. Such remedies shall not\nbe deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or in equity.\n7. This Agreement and any dispute, controversy or claim arising out of, relating to or in connection with this Agreement, or for the breach or\nalleged breach thereof (whether in contract, in tort or otherwise) shall be governed by, and construed in accordance with, the laws of the State of\nNew York, without giving effect to any conflicts of laws or other principles thereof that would result in the application of the laws of another\njurisdiction. For the avoidance of doubt, the parties confirm that they are fully familiar with the provisions of Section 5-1401 of the New York\nGeneral Obligations Law, and intend to bring this Agreement within the terms thereof.\n8. (a) Any and all disputes, controversies and claims between or among the Parties and arising under, relating to or in connection with, this\nAgreement, in any manner whatsoever, whether in contract, in tort, or otherwise, and including any dispute or controversy regarding the existence,\nvalidity or enforceability of this Agreement, or the arbitrability of any dispute, controversy or claim, and whether brought by a Party and/or any of its\nparents, subsidiaries, affiliates, officers, directors or agents, on the one hand, against a Party and/or any of its parents, subsidiaries, affiliates, officers,\ndirectors or agents, on the other hand, shall be settled by arbitration by a tribunal of three (3) arbitrators constituted and acting under the United\nNations Commission on International Trade Law (UNCITRAL) Arbitration Rules then in force (the “Rules”) in accordance with the following terms\nand conditions:\n(i) in the event of any conflict between the Rules and the provisions of this Agreement, the provisions of this Agreement shall prevail;\n(ii) (A) the seat of arbitration shall be London, England, unless otherwise agreed by the Parties, and the fact that hearings are held elsewhere\nshall not affect the seat of arbitration; and (B) notwithstanding\n2\n(iii)\n(iv)\n)\n(vi)\n(vii)\nSection 7 hereof, the arbitration proceeding itself shall be governed by the Arbitration Act 1996 of the United Kingdom and the\nprocedural law of England relating to the conduct of arbitration proceedings;\nthe following procedures shall govern the selection of arbitrators:\n(A)  where there is only one claimant party and one respondent party, the claimant party shall appoint one arbitrator in accordance\nwith the Rules, the respondent party shall appoint one arbitrator in accordance with the Rules within thirty (30) days after the\nappointment of the first arbitrator, and the two arbitrators so appointed shall appoint the third (and presiding) arbitrator in\naccordance with the Rules within thirty (30) days after the appointment of the second arbitrator;\n(B) Inthe event of an inability by the two party—nominated arbitrators to agree on a third arbitrator in accordance with Section 8(a)\n(iii)(A) above, the appointing authority for the third arbitrator shall be the LCIA (the “L.CIA”), acting in accordance with such\nrules as it may adopt for such purpose. The LCIA shall use its best efforts to appoint such third arbitrator within thirty (30) days\nof an application being made for such purpose.\n(C)  Following the appointment by a claimant or claimants or a respondent or respondents of the first arbitrator in circumstances in\nwhich there is more than one claimant party or respondent party, the remaining claimants or respondents, as the case may be,\nshall attempt to agree between or among themselves on the appointment of a second arbitrator within thirty (30) days after the\nappointment of the first arbitrator, and to appoint such individual to serve as the second arbitrator. Should they (i) fail to so agree,\nand (ii) provide written notice of such disagreement within (30) days of the appointment of the first arbitrator, then, within ten\n(10) days after the date of the first such notice, any such claimant or respondent may nominate a candidate to serve as the second\narbitrator. Within thirty (30) days after the end of such ten (10) day period for nominations, the LCIA shall choose one of the\ncandidates so nominated to serve as the second arbitrator, in accordance with such rules as it may adopt for such purpose. The\narbitration (including with respect to the appointment of the third arbitrator) shall thereafter proceed in accordance with this\nSection 8.\nThe English language shall be used as the written and spoken language for the arbitration proceeding and all matters connected to the\narbitration proceeding.\nThe arbitral tribunal shall have the power to grant any remedy or relief that it deems just and equitable and that is in accordance with the\nterms of this Agreement, including specific performance, and including, but not limited to, injunctive relief, whether interim or final, and\nany such relief and any interim, provisional or conservatory measure ordered by the arbitral tribunal may be specifically enforced by any\ncourt of competent jurisdiction. Each party to the arbitration proceeding retains the right to seek interim, provisional or conservatory\nmeasures in accordance with Section 8(c), and any such request shall not be deemed incompatible with the agreement to arbitrate or\nconstitute a waiver of the right to arbitrate.\nThe award of the arbitral tribunal shall be final and binding on the parties to the arbitration proceeding.\nThe award of the arbitral tribunal may be enforced by any court of competent jurisdiction and may be executed against the person and\nassets of the losing party in any competent jurisdiction. For the avoidance of doubt, the parties acknowledge and agree that a court of any\njurisdiction where the assets of a party against which enforcement is sought may be found is a court of competent jurisdiction, and the\nparties irrevocably consent to the exercise of personal jurisdiction in any such court.\n(b)  Except for arbitration proceedings pursuant to Section 8(a), no action, lawsuit or other proceeding (other than proceedings for the\nconfirmation or enforcement of an arbitration award, an action to compel arbitration or an application for interim, provisional or\nconservatory measures in connection with the arbitration) shall be brought by or between the Parties in connection with any\nmatter arising out of or in connection with this Agreement. Each Party irrevocably waives any right under the Arbitration Act\n1996 of the United Kingdom to appeal any arbitration award to, or\n3\nto seek determination of any question of law arising in the course of arbitration from, the Commercial Court.\n(© Each Party hereby irrevocably submits to (i) the non-exclusive jurisdiction of the Commercial Court in London, England in\nconnection with any proceeding for the confirmation or enforcement of an arbitration award, and (ii) the exclusive jurisdiction of\nthe Commercial Court in London, England in connection with any application for interim, provisional or conservatory measures\nin connection with an arbitration (in each case, as referred to in Section 8(b) above) or an action to compel arbitration (provided\nthat each Party retains the right to file a motion to compel arbitration (or its equivalent) in a court other than the Commercial\nCourt in London, England in response to an action commenced or a motion or application made by another Party or its agents,\naffiliates or representatives in such other court). Notwithstanding the foregoing, each Party agrees that it shall not, directly or\nindirectly, whether through any agent, affiliate, representative or otherwise, apply for any interim, provisional or conservatory\nmeasures in connection with an arbitration before any court located in the United States, the Russian Federation or Ukraine;\nprovided, however, that nothing in this Section 8(c) shall preclude, in any manner whatsoever, any Party from seeking any such\nmeasure based upon (A) any order or judgment, whether provisional or final, of any English court or (B) any order, directive,\naward or ruling, whether interim or final, of any arbitral tribunal in any arbitration proceeding hereunder. Each Party hereby\nirrevocably waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying\nof the venue of any such action, suit or proceeding brought in the Commercial Court and any claim that any such action, suit or\nproceeding brought in the Commercial Court has been brought in any inconvenient forum. Nothing herein shall affect the right of\nany Party to serve process in any other manner permitted by applicable law or to commence legal proceedings or otherwise\nproceed against another Party in any other jurisdiction in a manner not inconsistent with this Section 8(c).\n9. The provisions of this Agreement may not be amended, modified, supplemented or terminated without the prior written agreement of all\nParties, and waivers or consents to departures from the provisions hereof may not be given, except by written instrument duly executed by the Party\nagainst which enforcement of such waiver or consent to departure is sought. Altimo and certain of its affiliates, on the one hand, and Telenor and\ncertain of its affiliates, on the other, are parties to certain litigations and arbitrations in the United States, Switzerland, Russia and Ukraine concerning\ntheir rights and obligations with respect to their respective shareholdings in Kyivstar and VimpelCom (each, a “Dispute”, and, collectively, the\n“Disputes™). Nothing in this Agreement shall limit or prevent Altimo, Telenor or any of their respective affiliates from continuing to prosecute or\ndefend any of the Disputes, and any Dispute may continue to be prosecuted or defended as if this Agreement did not exist (provided, however, that\nany Information received from VimpelCom or its Representatives will continue to be provided the protections afforded such Information under this\nAgreement). Each of Altimo and Telenor agrees not to seek, or permit any of its respective affiliates to seek, a dismissal, stay, postponement or\nsimilar other relief in any Dispute by reason (in whole or in part) of this Agreement or any discussions concerning the Transaction. Nothing in this\nAgreement constitutes a commitment by any Party or its Representatives to enter into the Transaction and all discussions between the Parties and\ntheir respective Representatives with regard to the Transaction remain subject to definitive written agreements being entered into by the Parties or\ntheir affiliates in respect of the Transaction.\n10. If it is found in a final judgment by an arbitral tribunal or a court of competent jurisdiction (not subject to further appeal) that any term or\nprovision hereof is invalid or unenforceable, (a) the remaining terms and provisions hereof shall be unimpaired and shall remain in full force and\neffect and (b) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes\nclosest to expressing the intention of such invalid or unenforceable term or provision.\n11. Neither this Agreement nor any right, interest or obligation hereunder may be assigned by a Party without the prior written consent of the\nother Parties and any attempt to do so will be void. Subject to the\npreceding sentence, this Agreement is binding upon, inures to the benefit of and is enforceable by the Parties and their respective successors and\nassigns. The terms and provisions of this Agreement are intended solely for the benefit of each Party and their respective successors or permitted\nassigns, and it is not the intention of the Parties to confer third party beneficiary rights upon any other Person.\n12. This Agreement shall become effective on the date hereof and shall continue until the earlier of (i) the signing of the definitive Transaction\ndocumentation, (ii) a period of twelve (12) months from the execution date of this Agreement, and (iii) the written agreement of the Parties to\nterminate this Agreement. The Information disclosed to the Parties shall be treated as confidential in accordance with this Agreement for a period of\ntwo (2) years from the date of termination of this Agreement. The provisions of Sections 6-11 hereof and this Section 12 shall survive any\ntermination of this Agreement. The provisions of this Agreement shall become binding upon VimpelCom upon receipt of the approval of its board of\ndirectors, as required by applicable Russian law and VimpelCom'’s charter in respect of interested party transactions.\n13. Subject to Section 4 hereof, each Party agrees that it shall, and shall cause its Representatives to, refrain from disclosing any information or\nmaking any statements regarding the Transaction in connection with the marketing of any securities issued in relation to the Transaction, including,\nwithout limitation, during any “road show” or any appearance before rating agencies, unless the form and content of such disclosure has been\nreviewed and agreed to by the other Parties.\n14. Any notice, request, consent, waiver or other communication required or permitted hereunder shall be effective only if it is in writing and\npersonally delivered or sent by facsimile or sent, postage prepaid, by registered or certified mail, return receipt requested, or by recognized overnight\ncourier service, postage or other charges prepaid, and shall be deemed given when so delivered by hand or facsimile, or when received if sent by\nmail or by courier, as follows:\nIf to Altimo:\nSavvinskaya nab., 11\nMoscow 119435\nRussia\nFacsimile No.: +7 495 981 44 88\nAttention: Yuri Musatov\nIf to Telenor:\nAdvokatene i Telenor\nSnargyveien 30\nN1331 Fornebu\nNorway\nFacsimile No.: +47 67 89 24 32\nAttention: Bjgrn Hogstad\nIf to VimpelCom:\n4 Krasnoproletarskaya Street\nMoscow 127006\nRussia\nFacsimile No.: +7(909) 991-7903\nAttention: Jeff McGhie\nor such other person or address as the addressee may have specified in a notice duly given to the sender as provided herein.\n5\nIN WITNESS WHEREOF, this Mutual Non-Disclosure Agreement has been duly executed and delivered by each Party as of the date first\nabove written.\nATLTIMO HOLDINGS & INVESTMENT LIMITED\nBy:  /s/ Franz Wolf\nName: Franz Wolf\nTitle: Director\nTELENOR ASA\nBy:  /s/ Trond Westlie\nName: Trond Westlie\nTitle: EVP and CFO\nOPEN JOINT STOCK COMPANY “VIMPEL-\nCOMMUNICATIONS”\nBy:  /s/ Jeffrey D. McGhie\nName: Jeffrey D. McGhie\nTitle: Vice President, General Counsel	EX-99. (E) (1) 4 dex99el.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (e)(1)\nMUTUAL NON-DISCLOSURE AGREEMENT dated as of September 23, 2009 (this "Agreement") among ALTIMO HOLDINGS &\nINVESTMENTS LIMITED, a company organized under the laws of the British Virgin Islands ("Altimo"), TELENOR ASA, a company organized\nunder the laws of Norway ("Telenor"), and OPEN JOINT STOCK COMPANY "VIMPEL-COMMUNICATIONS", an open joint stock company\norganized under the laws of the Russian Federation ("VimpelCom" and, together with Altimo and Telenor, collectively, the "Parties" and each,\nindividually, a "Party").\nWHEREAS, Altimo, Telenor and VimpelCom are currently discussing and evaluating a possible transaction (the "Transaction") between\nAltimo, Telenor and VimpelCom, with respect to Altimo and Telenor's respective indirect shareholdings in VimpelCom and Closed Joint Stock\nCompany "Kyivstar G.S.M.," a closed joint stock company organized under the laws of Ukraine ("Kyivstar");\nNOW, THEREFORE, it is hereby agreed by the Parties as follows:\n1. Each Party agrees that Information (as defined below) will be kept confidential by such Party and its Representatives and will not be\ndisclosed or divulged to any other Person (as defined below) without the express prior written consent of the other Parties. Nothing in this\nAgreement shall preclude a Party or its Representatives (as defined below) from disclosing Information which (a) is or becomes generally available\nin the public domain other than as a result of a disclosure by the Party or its Representatives receiving the Information in violation of the terms of\nthis Agreement, (b) was available to such Party or its Representatives on a non-confidential basis prior to its disclosure, (c) becomes available to\nsuch\nParty or it Representatives on a non-confidential basis from a source other than another Party or its Representatives or Kyivstar, provided that\nsuch source was not known by such Party (after making appropriate inquiries) to be prohibited from disclosing such Information by a contractual or\nlegal obligation to another Party or its affiliates or (d) has been developed by such Party or its Representatives independently of any Information\nsupplied\nhereunder. As used herein, "Information" means (i) the fact that discussions or negotiations are taking place concerning the Transaction\n(ii) any of the discussions, negotiations, terms, conditions or other facts with respect to the Transaction (including the status thereof), (iii) any non-\npublic, confidential or proprietary information received from any Party or its Representatives or Kyivstar, whether in oral, written, visual, magnetic,\nelectronic or other form and regardless of whether such information is specifically identified as "confidential", together with any analyses,\ncompilations, studies or other documents which contain or otherwise reflect such information, and (iv) the existence and terms of this Agreement;\nand "Person" means any individual, governmental body (including, without limitation, any court or regulatory authority), arbitration tribunal,\npartnership, corporation, the media or any other entity.\n2. Each Party is permitted to disclose the Information only to those of its subsidiaries and affiliates and its and their respective directors,\nofficers, employees, attorneys, accountants, financial advisors, financing sources and other agents (collectively, a Party's "Representatives")\nwho\nneed to know such Information for the purpose of facilitating the Transaction; provided that such Party shall inform its Representatives of the\nconfidential nature of such Information, shall provide them with a copy of this Agreement and shall direct them to treat such Information as\nconfidential in accordance with the terms hereof; and provided further that for purposes of the definition of "Representatives", neither Telenor nor\nAltimo shall be deemed affiliates of VimpelCom.\n3. Each Party will be responsible for any breach by it or, if applicable, its Representatives of this Agreement. Each Party agrees to take all\nreasonable measures to restrain its Representatives from unauthorized disclosure or use of Information.\n4. Notwithstanding the foregoing or anything to the contrary in Section 13, a Party and its Representatives may disclose any Information to\nsatisfy a deposition, interrogatory, discovery request, subpoena, civil investigation claim or other similar process of a legal demand by a competent\ncourt of law or governmental body, provided, however, that in such circumstances, the Party or Representative seeking to disclose (the "Disclosing\nParty") shall, to the extent practicable, advise the other Parties (the "Other Parties") prior to disclosure so that the Other Parties have an\nopportunity to seek a protective order or otherwise defend, limit or protect against such\nproduction or disclosure; provided further that the Disclosing Party shall disclose only that portion of the Information which is legally required to be\ndisclosed. Notwithstanding anything to the contrary in Section 1 or Section 13, a Party and its Representatives may disclose any Information (as\nprovided in sub-clauses (i), (ii) and (iv) only of the definition of "Information") regarding the Transaction (a) if it determines that such disclosure\nis\nnecessary in accordance with the requirements of any applicable law or regulation of any governmental entity having jurisdiction over such Party or\nRepresentative or of any stock exchange on which VimpelCom or Telenor's respective securities are listed, provided the Disclosing Party shall give\nthe Other Parties reasonable advance notice and opportunity to comment on the content of the disclosure or (b) to the extent necessary, to any\ngovernmental or regulatory authority whose approval, whether formal or informal, is required in order to complete the Transaction, provided that the\nDisclosing Party shall inform the Other Parties of the nature and content of such disclosure, as well as the details of the governmental or regulatory\nauthority to whom such disclosure has been made.\n5. Each Party represents that it is familiar with the United States Securities Exchange Act of 1934, as amended, the rules and regulations\nthereunder and related legislation and principles of common law forbidding insider trading of securities. Telenor and Altimo agree that until the\nearlier of: (i) the signing of the definitive Transaction documentation or (ii) the receipt of a notice from either Altimo or Telenor that it terminates\nfurther discussions of the Transaction, each of Telenor and Altimo shall refrain, and shall cause its respective directly controlled affiliates to refrain,\nfrom trading equity securities of VimpelCom; provided, however, that this restriction shall not apply to Alfa Bank's brokerage business; and\nprovided further that VimpelCom shall not be deemed a controlled affiliate of either Telenor or Altimo for purposes of this Section 5. For the\navoidance of doubt, this restriction does not apply to any transaction involving VimpelCom debt securities; nor shall this Agreement constitute an\namendment or waiver of any provision of the Registration Rights Agreement dated as of May 30, 2001 between and among Telenor East Invest AS,\nEco Telecom Limited and VimpelCom.\n6. No failure or delay by a Party in exercising any right, power, privilege or remedy hereunder shall operate as a waiver hereof nor shall any\nsingle or partial exercise thereof preclude any other or further exercise of any right, power, privilege or remedy hereunder. The Parties agree that\nmoney damages would not be a sufficient remedy for any breach of this Agreement by a Party or any of its Representatives. Such remedies shall not\nbe deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or in equity.\n7. This Agreement and any dispute, controversy or claim arising out of, relating to or in connection with this Agreement, or for the breach or\nalleged breach thereof (whether in contract, in tort or otherwise) shall be governed by, and construed in accordance with, the laws of the State of\nNew York, without giving effect to any conflicts of laws or other principles thereof that would result in the application of the laws of another\njurisdiction. For the avoidance of doubt, the parties confirm that they are fully familiar with the provisions of Section 5-1401 of the New York\nGeneral Obligations Law, and intend to bring this Agreement within the terms thereof.\n8. (a) Any and all disputes, controversies and claims between or among the Parties and arising under, relating to or in connection with, this\nAgreement, in any manner whatsoever, whether in contract, in tort, or otherwise, and including any dispute or controversy regarding the existence,\nvalidity or enforceability of this Agreement, or the arbitrability of any dispute, controversy or claim, and whether brought by a Party and/or any of its\nparents, subsidiaries, affiliates, officers, directors or agents, on the one hand, against a Party and/or any of its parents, subsidiaries, affiliates, officers,\ndirectors or agents, on the other hand, shall be settled by arbitration by a tribunal of three (3) arbitrators constituted and acting under the United\nNations Commission on International Trade Law (UNCITRAL) Arbitration Rules then in force (the "Rules") in accordance with the following terms\nand conditions:\n(i)\nin the event of any conflict between the Rules and the provisions of this Agreement, the provisions of this Agreement shall prevail;\n(ii)\n(A) the seat of arbitration shall be London, England, unless otherwise agreed by the Parties, and the fact that hearings are held elsewhere\nshall not affect the seat of arbitration; and (B) notwithstanding\n2\nSection 7 hereof, the arbitration proceeding itself shall be governed by the Arbitration Act 1996 of the United Kingdom and the\nprocedural law of England relating to the conduct of arbitration proceedings;\n(iii) the following procedures shall govern the selection of arbitrators:\n(A)\nwhere there is only one claimant party and one respondent party, the claimant party shall appoint one arbitrator in accordance\nwith the Rules, the respondent party shall appoint one arbitrator in accordance with the Rules within thirty (30) days after the\nappointment of the first arbitrator, and the two arbitrators so appointed shall appoint the third (and presiding) arbitrator in\naccordance with the Rules within thirty (30) days after the appointment of the second arbitrator;\n(B)\nIn the event of an inability by the two party-nominated arbitrators to agree on a third arbitrator in accordance with Section 8(a)\n(iii)(A) above, the appointing authority for the third arbitrator shall be the LCIA (the "LCIA"), acting in accordance with such\nrules as it may adopt for such purpose. The LCIA shall use its best efforts to appoint such third arbitrator within thirty (30) days\nof an application being made for such purpose.\n(C)\nFollowing the appointment by a claimant or claimants or a respondent or respondents of the first arbitrator in circumstances in\nwhich there is more than one claimant party or respondent party, the remaining claimants or respondents, as the case may be,\nshall attempt to agree between or among themselves on the appointment of a second arbitrator within thirty (30) days after the\nappointment of the first arbitrator, and to appoint such individual to serve as the second arbitrator. Should they (i) fail to so agree,\nand (ii) provide written notice of such disagreement within (30) days of the appointment of the first arbitrator, then, within ten\n(10) days after the date of the first such notice, any such claimant or respondent may nominate a candidate to serve as the second\narbitrator. Within thirty (30) days after the end of such ten (10) day period for nominations, the LCIA shall choose one of the\ncandidates so nominated to serve as the second arbitrator, in accordance with such rules as it may adopt for such purpose. The\narbitration (including with respect to the appointment of the third arbitrator) shall thereafter proceed in accordance with this\nSection 8.\n(iv) The English language shall be used as the written and spoken language for the arbitration proceeding and all matters connected to the\narbitration proceeding.\n(v)\nThe arbitral tribunal shall have the power to grant any remedy or relief that it deems just and equitable and that is in accordance with\nthe\nterms of this Agreement, including specific performance, and including, but not limited to, injunctive relief, whether interim or final, and\nany such relief and any interim, provisional or conservatory measure ordered by the arbitral tribunal may be specifically enforced by any\ncourt of competent jurisdiction. Each party to the arbitration proceeding retains the right to seek interim, provisional or conservatory\nmeasures in accordance with Section 8(c), and any such request shall not be deemed incompatible with the agreement to arbitrate or\nconstitute a waiver of the right to arbitrate.\n(vi) The award of the arbitral tribunal shall be final and binding on the parties to the arbitration proceeding.\n(vii) The award of the arbitral tribunal may be enforced by any court of competent jurisdiction and may be executed against the person and\nassets of the losing party in any competent jurisdiction. For the avoidance of doubt, the parties acknowledge and agree that a court of any\njurisdiction where the assets of a party against which enforcement is sought may be found is a court of competent jurisdiction, and the\nparties irrevocably consent to the exercise of personal jurisdiction in any such court.\n(b)\nExcept for arbitration proceedings pursuant to Section 8(a), no action, lawsuit or other proceeding (other than proceedings for the\nconfirmation or enforcement of an arbitration award, an action to compel arbitration or an application for interim, provisional or\nconservatory measures in connection with the arbitration) shall be brought by or between the Parties in connection with any\nmatter arising out of or in connection with this Agreement. Each Party irrevocably waives any right under the Arbitration Act\n1996 of the United Kingdom to appeal any arbitration award to, or\n3\nto seek determination of any question of law arising in the course of arbitration from, the Commercial Court.\n(c)\nEach Party hereby irrevocably submits to (i) the non-exclusive jurisdiction of the Commercial Court in London, England in\nconnection with any proceeding for the confirmation or enforcement of an arbitration award, and (ii) the exclusive jurisdiction\nof\nthe Commercial Court in London, England in connection with any application for interim, provisional or conservatory measures\nin connection with an arbitration (in each case, as referred to in Section 8(b) above) or an action to compel arbitration (provided\nthat each Party retains the right to file a motion to compel arbitration (or its equivalent) in a court other than the Commercial\nCourt in London, England in response to an action commenced or a motion or application made by another Party or its agents,\naffiliates or representatives in such other court). Notwithstanding the foregoing, each Party agrees that it shall not, directly or\nindirectly, whether through any agent, affiliate, representative or otherwise, apply for any interim, provisional or conservatory\nmeasures in connection with an arbitration before any court located in the United States, the Russian Federation or Ukraine;\nprovided, however, that nothing in this Section 8(c) shall preclude, in any manner whatsoever, any Party from seeking any such\nmeasure based upon (A) any order or judgment, whether provisional or final, of any English court or (B) any order, directive,\naward or ruling, whether interim or final, of any arbitral tribunal in any arbitration proceeding hereunder. Each Party hereby\nirrevocably\nwaives,\nto\nthe\nfullest\nextent\npermitted\nby\napplicable\nlaw,\nany\nobjection\nthat\nit\nmay\nnow\nor\nhereafter\nhave\nto\nthe\nlaying\nof the venue of any such action, suit or proceeding brought in the Commercial Court and any claim that any such action, suit or\nproceeding brought in the Commercial Court has been brought in any inconvenient forum. Nothing herein shall affect the right of\nany Party to serve process in any other manner permitted by applicable law or to commence legal proceedings or otherwise\nproceed against another Party in any other jurisdiction in a manner not inconsistent with this Section 8(c).\n9. The provisions of this Agreement may not be amended, modified, supplemented or terminated without the prior written agreement\nof\nall\nParties, and waivers or consents to departures from the provisions hereof may not be given, except by written instrument duly executed by the Party\nagainst which enforcement of such waiver or consent to departure is sought. Altimo and certain of its affiliates, on the one hand, and Telenor and\ncertain of its affiliates, on the other, are parties to certain litigations and arbitrations in the United States, Switzerland, Russia and Ukraine concerning\ntheir rights and obligations with respect to their respective shareholdings in Kyivstar and VimpelCom (each, a "Dispute", and, collectively, the\n"Disputes"). Nothing in this Agreement shall limit or prevent Altimo, Telenor or any of their respective affiliates from continuing to prosecute or\ndefend any of the Disputes, and any Dispute may continue to be prosecuted or defended as if this Agreement did not exist (provided, however, that\nany Information received from VimpelCom or its Representatives will continue to be provided the protections afforded such Information under this\nAgreement). Each of Altimo and Telenor agrees not to seek, or permit any of its respective affiliates to seek, a dismissal, stay, postponement or\nsimilar other relief in any Dispute by reason (in whole or in part) of this Agreement or any discussions concerning the Transaction. Nothing in this\nAgreement constitutes a commitment by any Party or its Representatives to enter into the Transaction and all discussions between the Parties and\ntheir respective Representatives with regard to the Transaction remain subject to definitive written agreements being entered into by the Parties or\ntheir affiliates in respect of the Transaction.\n10. If it is found in a final judgment by an arbitral tribunal or a court of competent jurisdiction (not subject to further appeal) that any term or\nprovision hereof is invalid or unenforceable, (a) the remaining terms and provisions hereof shall be unimpaired and shall remain in full force and\neffect and (b) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes\nclosest to expressing the intention of such invalid or unenforceable term or provision.\n11. Neither this Agreement nor any right, interest or obligation hereunder may be assigned by a Party without the prior written consent of the\nother Parties and any attempt to do so will be void. Subject to the\n4\npreceding sentence, this Agreement is binding upon, inures to the benefit of and is enforceable by the Parties and their respective successors and\nassigns. The terms and provisions of this Agreement are intended solely for the benefit of each Party and their respective successors or permitted\nassigns, and it is not the intention of the Parties to confer third party beneficiary rights upon any other Person.\n12. This Agreement shall become effective on the date hereof and shall continue until the earlier of (i) the signing of the definitive Transaction\ndocumentation, (ii) a period of twelve (12) months from the execution date of this Agreement, and (iii) the written agreement of the Parties to\nterminate this Agreement. The Information disclosed to the Parties shall be treated as confidential in accordance with this Agreement for a period of\ntwo (2) years from the date of termination of this Agreement. The provisions of Sections 6-11 hereof and this Section 12 shall survive any\ntermination of this Agreement. The provisions of this Agreement shall become binding upon VimpelCom upon receipt of the approval of its board of\ndirectors, as required by applicable Russian law and VimpelCom's charter in respect of interested party transactions.\n13.\nSubject to Section 4 hereof, each Party agrees that it shall, and shall cause its Representatives to, refrain from disclosing any information or\nmaking any statements regarding the Transaction in connection with the marketing of any securities issued in relation to the Transaction, including,\nwithout limitation, during any "road show" or any appearance before rating agencies, unless the form and content of such disclosure has been\nreviewed and agreed to by the other Parties.\n14. Any notice, request, consent, waiver or other communication required or permitted hereunder shall be effective only if it is in writing and\npersonally delivered or sent by facsimile or sent, postage prepaid, by registered or certified mail, return receipt requested, or by recognized overnight\ncourier service, postage or other charges prepaid, and shall be deemed given when so delivered by hand or facsimile, or when received if sent by\nmail or by courier, as follows:\nIf to Altimo:\nSavvinskaya nab., 11\nMoscow 119435\nRussia\nFacsimile No.: +7 495 981 44 88\nAttention: Yuri Musatov\nIf to Telenor:\nAdvokatene i Telenor\nSnareyveien 30\nN1331 Fornebu\nNorway\nFacsimile No.: +47 67 89 24 32 67 89 24 32\nAttention: Bjorn Hogstad\nIf to VimpelCom\n4 Krasnoproletarskaya Street\nMoscow 127006\nRussia\nFacsimile No.: +7(909) 991-7903\nAttention: Jeff McGhie\nor such other person or address as the addressee may have specified in a notice duly given to the sender as provided herein.\n5\nIN WITNESS WHEREOF, this Mutual Non-Disclosure Agreement has been duly executed and delivered by each Party as of the date first\nabove written.\nALTIMO HOLDINGS & INVESTMENT LIMITED\nBy:\n/s/ Franz Wolf\nName: Franz Wolf\nTitle: Director\nTELENOR ASA\nBy:\n/s/ Trond Westlie\nName: Trond Westlie\nTitle: EVP and CFO\nOPEN JOINT STOCK COMPANY "VIMPEL-\nCOMMUNICATIONS"\nBy: /s/ Jeffrey D. McGhie\nName: Jeffrey D. McGhie\nTitle: Vice President, General Counsel\n6	EX-99. (E) (1) 4 dex99e1.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (e)(1)\nMUTUAL NON-DISCLOSURE AGREEMENT dated as of September 23, 2009 (this “Agreement”) among ALTIMO HOLDINGS &\nINVESTMENTS LIMITED, a company organized under the laws of the British Virgin Islands (“Altimo”), TELENOR ASA, a company organized\nunder the laws of Norway (“Telenor”), and OPEN JOINT STOCK COMPANY “VIMPEL-COMMUNICATIONS”, an open joint stock company\norganized under the laws of the Russian Federation (“VimpelCom” and, together with Altimo and Telenor, collectively, the “Parties” and each,\nindividually, a “Party”).\nWHEREAS, Altimo, Telenor and VimpelCom are currently discussing and evaluating a possible transaction (the “Transaction”) between\nAltimo, Telenor and VimpelCom, with respect to Altimo and Telenor’s respective indirect shareholdings in VimpelCom and Closed Joint Stock\nCompany “Kyivstar G.S .M.,” a closed joint stock company organized under the laws of Ukraine (“Kyivstar”);\nNOW, THEREFORE, it is hereby agreed by the Parties as follows:\n1. Each Party agrees that Information (as defined below) will be kept confidential by such Party and its Representatives and will not be\ndisclosed or divulged to any other Person (as defined below) without the express prior written consent of the other Parties. Nothing in this\nAgreement shall preclude a Party or its Representatives (as defined below) from disclosing Information which (a) is or becomes generally available\nin the public domain other than as a result of a disclosure by the Party or its Representatives receiving the Information in violation of the terms of\nthis Agreement, (b) was available to such Party or its Representatives on a non-confidential basis prior to its disclosure, (c) becomes available to\nsuch Party or it Representatives on a non-confidential basis from a source other than another Party or its Representatives or Kyivstar, provided that\nsuch source was not known by such Party (after making appropriate inquiries) to be prohibited from disclosing such Information by a contractual or\nlegal obligation to another Party or its affiliates or (d) has been developed by such Party or its Representatives independently of any Information\nsupplied hereunder. As used herein, “Information” means (i) the fact that discussions or negotiations are taking place concerning the Transaction,\n(ii) any of the discussions, negotiations, terms, conditions or other facts with respect to the Transaction (including the status thereof), (iii) any non-\npublic, confidential or proprietary information received from any Party or its Representatives or Kyivstar, whether in oral, written, visual, magnetic,\nelectronic or other form and regardless of whether such information is specifically identified as “confidential”, together with any analyses,\ncompilations, studies or other documents which contain or otherwise reflect such information, and (iv) the existence and terms of this Agreement;\nand “Person” means any individual, governmental body (including, without limitation, any court or regulatory authority), arbitration tribunal,\npartnership, corporation, the media or any other entity.\n2. Each Party is permitted to disclose the Information only to those of its subsidiaries and affiliates and its and their respective directors,\nofficers, employees, attorneys, accountants, financial advisors, financing sources and other agents (collectively, a Party’s “Representatives”) who\nneed to know such Information for the purpose of facilitating the Transaction; provided that such Party shall inform its Representatives of the\nconfidential nature of such Information, shall provide them with a copy of this Agreement and shall direct them to treat such Information as\nconfidential in accordance with the terms hereof; and provided further that for purposes of the definition of “Representatives”, neither Telenor nor\nAltimo shall be deemed affiliates of VimpelCom.\n3. Each Party will be responsible for any breach by it or, if applicable, its Representatives of this Agreement. Each Party agrees to take all\nreasonable measures to restrain its Representatives from unauthorized disclosure or use of Information.\n4. Notwithstanding the foregoing or anything to the contrary in Section 13, a Party and its Representatives may disclose any Information to\nsatisfy a deposition, interrogatory, discovery request, subpoena, civil investigation claim or other similar process of a legal demand by a competent\ncourt of law or governmental body, provided, however, that in such circumstances, the Party or Representative seeking to disclose (the “Disclosing\nParty”) shall, to the extent practicable, advise the other Parties (the “Other Parties”) prior to disclosure so that the Other Parties have an\nopportunity to seek a protective order or otherwise defend, limit or protect against such\nproduction or disclosure; provided further that the Disclosing Party shall disclose only that portion of the Information which is legally required to be\ndisclosed. Notwithstanding anything to the contrary in Section 1 or Section 13, a Party and its Representatives may disclose any Information (as\nprovided in sub-clauses (i), (ii) and (iv) only of the definition of “Information”) regarding the Transaction (a) if it determines that such disclosure is\nnecessary in accordance with the requirements of any applicable law or regulation of any governmental entity having jurisdiction over such Party or\nRepresentative or of any stock exchange on which VimpelCom or Telenor’s respective securities are listed, provided the Disclosing Party shall give\nthe Other Parties reasonable advance notice and opportunity to comment on the content of the disclosure or (b) to the extent necessary, to any\ngovernmental or regulatory authority whose approval, whether formal or informal, is required in order to complete the Transaction, provided that the\nDisclosing Party shall inform the Other Parties of the nature and content of such disclosure, as well as the details of the governmental or regulatory\nauthority to whom such disclosure has been made.\n5. Each Party represents that it is familiar with the United States Securities Exchange Act of 1934, as amended, the rules and regulations\nthereunder and related legislation and principles of common law forbidding insider trading of securities. Telenor and Altimo agree that until the\nearlier of: (i) the signing of the definitive Transaction documentation or (ii) the receipt of a notice from either Altimo or Telenor that it terminates\nfurther discussions of the Transaction, each of Telenor and Altimo shall refrain, and shall cause its respective directly controlled affiliates to refrain,\nfrom trading equity securities of VimpelCom; provided, however, that this restriction shall not apply to Alfa Bank’s brokerage business; and\nprovided further that VimpelCom shall not be deemed a controlled affiliate of either Telenor or Altimo for purposes of this Section 5. For the\navoidance of doubt, this restriction does not apply to any transaction involving VimpelCom debt securities; nor shall this Agreement constitute an\namendment or waiver of any provision of the Registration Rights Agreement dated as of May 30, 2001 between and among Telenor East Invest AS,\nEco Telecom Limited and VimpelCom.\n6. No failure or delay by a Party in exercising any right, power, privilege or remedy hereunder shall operate as a waiver hereof nor shall any\nsingle or partial exercise thereof preclude any other or further exercise of any right, power, privilege or remedy hereunder. The Parties agree that\nmoney damages would not be a sufficient remedy for any breach of this Agreement by a Party or any of its Representatives. Such remedies shall not\nbe deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or in equity.\n7. This Agreement and any dispute, controversy or claim arising out of, relating to or in connection with this Agreement, or for the breach or\nalleged breach thereof (whether in contract, in tort or otherwise) shall be governed by, and construed in accordance with, the laws of the State of\nNew York, without giving effect to any conflicts of laws or other principles thereof that would result in the application of the laws of another\njurisdiction. For the avoidance of doubt, the parties confirm that they are fully familiar with the provisions of Section 5-1401 of the New York\nGeneral Obligations Law, and intend to bring this Agreement within the terms thereof.\n8. (a) Any and all disputes, controversies and claims between or among the Parties and arising under, relating to or in connection with, this\nAgreement, in any manner whatsoever, whether in contract, in tort, or otherwise, and including any dispute or controversy regarding the existence,\nvalidity or enforceability of this Agreement, or the arbitrability of any dispute, controversy or claim, and whether brought by a Party and/or any of its\nparents, subsidiaries, affiliates, officers, directors or agents, on the one hand, against a Party and/or any of its parents, subsidiaries, affiliates, officers,\ndirectors or agents, on the other hand, shall be settled by arbitration by a tribunal of three (3) arbitrators constituted and acting under the United\nNations Commission on International Trade Law (UNCITRAL) Arbitration Rules then in force (the “Rules”) in accordance with the following terms\nand conditions:\n(i) in the event of any conflict between the Rules and the provisions of this Agreement, the provisions of this Agreement shall prevail;\n(ii) (A) the seat of arbitration shall be London, England, unless otherwise agreed by the Parties, and the fact that hearings are held elsewhere\nshall not affect the seat of arbitration; and (B) notwithstanding\n2\nSection 7 hereof, the arbitration proceeding itself shall be governed by the Arbitration Act 1996 of the United Kingdom and the\nprocedural law of England relating to the conduct of arbitration proceedings;\n(iii) the following procedures shall govern the selection of arbitrators:\n(A) where there is only one claimant party and one respondent party, the claimant party shall appoint one arbitrator in accordance\nwith the Rules, the respondent party shall appoint one arbitrator in accordance with the Rules within thirty (30) days after the\nappointment of the first arbitrator, and the two arbitrators so appointed shall appoint the third (and presiding) arbitrator in\naccordance with the Rules within thirty (30) days after the appointment of the second arbitrator;\n(B) In the event of an inability by the two party–nominated arbitrators to agree on a third arbitrator in accordance with Section 8(a)\n(iii)(A) above, the appointing authority for the third arbitrator shall be the LCIA (the “LCIA”), acting in accordance with such\nrules as it may adopt for such purpose. The LCIA shall use its best efforts to appoint such third arbitrator within thirty (30) days\nof an application being made for such purpose.\n(C) Following the appointment by a claimant or claimants or a respondent or respondents of the first arbitrator in circumstances in\nwhich there is more than one claimant party or respondent party, the remaining claimants or respondents, as the case may be,\nshall attempt to agree between or among themselves on the appointment of a second arbitrator within thirty (30) days after the\nappointment of the first arbitrator, and to appoint such individual to serve as the second arbitrator. Should they (i) fail to so agree,\nand (ii) provide written notice of such disagreement within (30) days of the appointment of the first arbitrator, then, within ten\n(10) days after the date of the first such notice, any such claimant or respondent may nominate a candidate to serve as the second\narbitrator. Within thirty (30) days after the end of such ten (10) day period for nominations, the LCIA shall choose one of the\ncandidates so nominated to serve as the second arbitrator, in accordance with such rules as it may adopt for such purpose. The\narbitration (including with respect to the appointment of the third arbitrator) shall thereafter proceed in accordance with this\nSection 8.\n(iv) The English language shall be used as the written and spoken language for the arbitration proceeding and all matters connected to the\narbitration proceeding.\n(v) The arbitral tribunal shall have the power to grant any remedy or relief that it deems just and equitable and that is in accordance with the\nterms of this Agreement, including specific performance, and including, but not limited to, injunctive relief, whether interim or final, and\nany such relief and any interim, provisional or conservatory measure ordered by the arbitral tribunal may be specifically enforced by any\ncourt of competent jurisdiction. Each party to the arbitration proceeding retains the right to seek interim, provisional or conservatory\nmeasures in accordance with Section 8(c), and any such request shall not be deemed incompatible with the agreement to arbitrate or\nconstitute a waiver of the right to arbitrate.\n(vi) The award of the arbitral tribunal shall be final and binding on the parties to the arbitration proceeding.\n(vii) The award of the arbitral tribunal may be enforced by any court of competent jurisdiction and may be executed against the person and\nassets of the losing party in any competent jurisdiction. For the avoidance of doubt, the parties acknowledge and agree that a court of any\njurisdiction where the assets of a party against which enforcement is sought may be found is a court of competent jurisdiction, and the\nparties irrevocably consent to the exercise of personal jurisdiction in any such court.\n(b) Except for arbitration proceedings pursuant to Section 8(a), no action, lawsuit or other proceeding (other than proceedings for the\nconfirmation or enforcement of an arbitration award, an action to compel arbitration or an application for interim, provisional or\nconservatory measures in connection with the arbitration) shall be brought by or between the Parties in connection with any\nmatter arising out of or in connection with this Agreement. Each Party irrevocably waives any right under the Arbitration Act\n1996 of the United Kingdom to appeal any arbitration award to, or\n3\nto seek determination of any question of law arising in the course of arbitration from, the Commercial Court.\n(c) Each Party hereby irrevocably submits to (i) the non-exclusive jurisdiction of the Commercial Court in London, England in\nconnection with any proceeding for the confirmation or enforcement of an arbitration award, and (ii) the exclusive jurisdiction of\nthe Commercial Court in London, England in connection with any application for interim, provisional or conservatory measures\nin connection with an arbitration (in each case, as referred to in Section 8(b) above) or an action to compel arbitration (provided\nthat each Party retains the right to file a motion to compel arbitration (or its equivalent) in a court other than the Commercial\nCourt in London, England in response to an action commenced or a motion or application made by another Party or its agents,\naffiliates or representatives in such other court). Notwithstanding the foregoing, each Party agrees that it shall not, directly or\nindirectly, whether through any agent, affiliate, representative or otherwise, apply for any interim, provisional or conservatory\nmeasures in connection with an arbitration before any court located in the United States, the Russian Federation or Ukraine;\nprovided, however, that nothing in this Section 8(c) shall preclude, in any manner whatsoever, any Party from seeking any such\nmeasure based upon (A) any order or judgment, whether provisional or final, of any English court or (B) any order, directive,\naward or ruling, whether interim or final, of any arbitral tribunal in any arbitration proceeding hereunder. Each Party hereby\nirrevocably waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying\nof the venue of any such action, suit or proceeding brought in the Commercial Court and any claim that any such action, suit or\nproceeding brought in the Commercial Court has been brought in any inconvenient forum. Nothing herein shall affect the right of\nany Party to serve process in any other manner permitted by applicable law or to commence legal proceedings or otherwise\nproceed against another Party in any other jurisdiction in a manner not inconsistent with this Section 8(c).\n9. The provisions of this Agreement may not be amended, modified, supplemented or terminated without the prior written agreement of all\nParties, and waivers or consents to departures from the provisions hereof may not be given, except by written instrument duly executed by the Party\nagainst which enforcement of such waiver or consent to departure is sought. Altimo and certain of its affiliates, on the one hand, and Telenor and\ncertain of its affiliates, on the other, are parties to certain litigations and arbitrations in the United States, Switzerland, Russia and Ukraine concerning\ntheir rights and obligations with respect to their respective shareholdings in Kyivstar and VimpelCom (each, a “Dispute”, and, collectively, the\n“Disputes”). Nothing in this Agreement shall limit or prevent Altimo, Telenor or any of their respective affiliates from continuing to prosecute or\ndefend any of the Disputes, and any Dispute may continue to be prosecuted or defended as if this Agreement did not exist (provided, however, that\nany Information received from VimpelCom or its Representatives will continue to be provided the protections afforded such Information under this\nAgreement). Each of Altimo and Telenor agrees not to seek, or permit any of its respective affiliates to seek, a dismissal, stay, postponement or\nsimilar other relief in any Dispute by reason (in whole or in part) of this Agreement or any discussions concerning the Transaction. Nothing in this\nAgreement constitutes a commitment by any Party or its Representatives to enter into the Transaction and all discussions between the Parties and\ntheir respective Representatives with regard to the Transaction remain subject to definitive written agreements being entered into by the Parties or\ntheir affiliates in respect of the Transaction.\n10. If it is found in a final judgment by an arbitral tribunal or a court of competent jurisdiction (not subject to further appeal) that any term or\nprovision hereof is invalid or unenforceable, (a) the remaining terms and provisions hereof shall be unimpaired and shall remain in full force and\neffect and (b) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes\nclosest to expressing the intention of such invalid or unenforceable term or provision.\n11. Neither this Agreement nor any right, interest or obligation hereunder may be assigned by a Party without the prior written consent of the\nother Parties and any attempt to do so will be void. Subject to the\n4\npreceding sentence, this Agreement is binding upon, inures to the benefit of and is enforceable by the Parties and their respective successors and\nassigns. The terms and provisions of this Agreement are intended solely for the benefit of each Party and their respective successors or permitted\nassigns, and it is not the intention of the Parties to confer third party beneficiary rights upon any other Person.\n12. This Agreement shall become effective on the date hereof and shall continue until the earlier of (i) the signing of the definitive Transaction\ndocumentation, (ii) a period of twelve (12) months from the execution date of this Agreement, and (iii) the written agreement of the Parties to\nterminate this Agreement. The Information disclosed to the Parties shall be treated as confidential in accordance with this Agreement for a period of\ntwo (2) years from the date of termination of this Agreement. The provisions of Sections 6-11 hereof and this Section 12 shall survive any\ntermination of this Agreement. The provisions of this Agreement shall become binding upon VimpelCom upon receipt of the approval of its board of\ndirectors, as required by applicable Russian law and VimpelCom’s charter in respect of interested party transactions.\n13. Subject to Section 4 hereof, each Party agrees that it shall, and shall cause its Representatives to, refrain from disclosing any information or\nmaking any statements regarding the Transaction in connection with the marketing of any securities issued in relation to the Transaction, including,\nwithout limitation, during any “road show” or any appearance before rating agencies, unless the form and content of such disclosure has been\nreviewed and agreed to by the other Parties.\n14. Any notice, request, consent, waiver or other communication required or permitted hereunder shall be effective only if it is in writing and\npersonally delivered or sent by facsimile or sent, postage prepaid, by registered or certified mail, return receipt requested, or by recognized overnight\ncourier service, postage or other charges prepaid, and shall be deemed given when so delivered by hand or facsimile, or when received if sent by\nmail or by courier, as follows:\nIf to Altimo:\nSavvinskaya nab., 11\nMoscow 119435\nRussia\nFacsimile No.: +7 495 981 44 88\nAttention: Yuri Musatov\nIf to Telenor:\nAdvokatene i Telenor\nSnarøyveien 30\nN1331 Fornebu\nNorway\nFacsimile No.: +47 67 89 24 32\nAttention: Bjørn Hogstad\nIf to VimpelCom:\n4 Krasnoproletarskaya Street\nMoscow 127006\nRussia\nFacsimile No.: +7(909) 991-7903\nAttention: Jeff McGhie\nor such other person or address as the addressee may have specified in a notice duly given to the sender as provided herein.\n5\nIN WITNESS WHEREOF, this Mutual Non-Disclosure Agreement has been duly executed and delivered by each Party as of the date first\nabove written.\nALTIMO HOLDINGS & INVESTMENT LIMITED\nBy: /s/ Franz Wolf\nName: Franz Wolf\nTitle: Director\nTELENOR ASA\nBy: /s/ Trond Westlie\nName: Trond Westlie\nTitle: EVP and CFO\nOPEN JOINT STOCK COMPANY “VIMPEL-\nCOMMUNICATIONS”\nBy: /s/ Jeffrey D. McGhie\nName: Jeffrey D. McGhie\nTitle: Vice President, General Counsel\n6
+0564e5bce70dd2df5473d64da16ddbe3.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 9 d380892dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nLOGO\nWells Fargo Securities, LLC\n301 South College Street\nCharlotte, NC 28288-8905\nFebruary 28, 2011\nABC-Mart, Inc.\nc/o Barclays Capital\n745 Seventh Avenue\nNew York, NY 10019\nAttention:\nAri D. Berger, Managing Director\nRetail & Apparel Investment Banking Group\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nYou have expressed interest in pursuing the acquisition of LaCrosse Footwear, Inc. (the “Company”), which is represented by Wells Fargo\nSecurities LLC (“Wells Fargo”), through the purchase of all the capital stock of the Company (the “Transaction”). You have requested that the\nCompany or its representatives furnish you or your representatives with certain information relating to the Company or the Transaction. All such\ninformation (whether written or oral) furnished (whether before or after the date hereof) by the Company or its directors, officers, employees,\naffiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents (collectively, “the Company\nRepresentatives”) to you or your directors, officers, employees, affiliates, representatives (including, without limitation, financial advisors,\nattorneys and accountants) or agents (collectively, “your Representatives”) and all analyses, compilations, forecasts, studies or other documents\nprepared by you or your Representatives in connection with your or their review of, or your interest in, the Transaction which contain or reflect any\nsuch information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by you or your Representatives in violation of this letter agreement or other\nobligation of confidentiality, (ii) is already known to you at the time of its receipt form the Company or the Company Representatives, (iii) is or\nbecomes available to you on a nonconfidential basis from a source (other than the Company or its Representatives) not known by you to be\nprohibited from disclosing such information to you by a legal, contractual or fiduciary obligation, or (iv) has been independently developed by you\nor any of your Representatives without reference to any of the Information.\nLOGO\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 2\nAccordingly, you hereby agree that:\n1. You and your Representatives (i) will keep the Information confidential and will not (except as required by applicable law, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the Company’s prior written consent, disclose any Information in any\nmanner whatsoever, in whole or in part, (ii) will not use any Information other than in connection with the Transaction; provided, however, that\nyou may reveal the Information or portions thereof to your Representatives (a) who need to know the Information for the purpose of evaluating\nthe Transaction, (b) who are informed by you of the confidential nature of the Information and (c) who are directed by you to treat the\nInformation in a manner consistent with the terms of this letter agreement. You will be responsible for any breach of this letter agreement by\nany of your Representatives. You and the Company shall be permitted to disclose the tax treatment and tax structure of the Transaction\n(including any materials, opinions or analyses relating to such tax treatment or tax structure, but without disclosure of identifying information\nor, except to the extent relating to such tax structure or tax treatment, any nonpublic commercial or financial information) on and after the\nearliest to occur of the date of (i) public announcement of discussions relating to the Transaction, (ii) public announcement of the Transaction\nor (iii) execution of a definitive agreement (with or without conditions) to enter into the Transaction; provided, however, that if the Transaction\nis not consummated for any reason, the provisions of this sentence shall cease to apply.\n2. You and your Representatives will not (except as required by applicable law, regulation or legal process, and only after compliance with\nparagraph 3 below), without the Company’s prior written consent, disclose to any person the fact that the Information exists or has been made\navailable, that you are considering the Transaction involving the Company, or that discussions or negotiations are taking or have taken place\nconcerning the Transaction or involving the Company or any term, condition or other fact relating to the Transaction or such discussions or\nnegotiations, including, without limitation, the status thereof or the subject matter of this letter agreement.\n3. In the event that you or any of your Representatives are requested pursuant to, or required by, applicable law, regulation or legal process to\ndisclose any of the Information, you will notify the Company promptly (unless prohibited by law) so that the Company may seek an\nappropriate protective order or other appropriate remedy or, in the Company’s sole discretion, waive compliance with the terms of this letter\nagreement (and if the Company seeks such an order, you will provide such cooperation as the Company shall reasonably request). In the event\nthat no such protective order or other remedy is obtained or that the Company waives compliance with the terms of this letter agreement and\nthat you or any of your Representatives are nonetheless legally compelled to disclose such Information, you or your Representatives, as the\ncase may be, will furnish only that portion of the Information which you are advised by counsel is legally required and will give the Company\nwritten notice (unless prohibited by law) of the Information to be disclosed as far in advance as practicable and exercise all reasonable efforts\nto obtain reliable assurance that confidential treatment will be accorded the Information.\n4. If you determine not to proceed with the Transaction, you will promptly inform Wells Fargo, of that decision and, in that case, and at any time\nupon the request of the Company or any of the Company Representatives, you will (i) promptly deliver to the Company at your own expense\nor, at the Company’s written request, destroy all copies, whether stored electronically or otherwise, of the written Information in your or your\nRepresentatives’ possession that was delivered to you by the Company or on its behalf and (ii) promptly destroy all analyses, compilations,\nsummaries, studies and other material prepared by you or your Representatives and based in whole or in part on, or otherwise containing or\nreflecting any of, the Information. You will confirm any such destruction to the Company in writing. Any orally disclosed Information will\ncontinue to be subject to the terms of this letter agreement. Notwithstanding the foregoing, and for the avoidance of doubt, neither you nor any\nof your Representatives shall be under any obligation to return or destroy any Information that you or any of your Representatives is required\nto retain pursuant to any laws or regulations, or pursuant to any internal rules required by laws or regulations, and you may retain one copy of\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 3\nthe information in a form acceptable to you at the office of your general counsel solely for the purpose of preserving a record of the\nInformation you or any of your representatives has received and of using such Information to defend yourself or any of your Representatives\nagainst any claims, lawsuit or other administrative or legal action, which may be threatened or instituted in connection with the Information.\n5. You acknowledge that neither the Company, nor Wells Fargo, nor any of the Company’s other Representatives, nor any of their respective\nofficers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the\n“Exchange Act”), make any representation or warranty, express or implied, as to the accuracy or completeness of the Information, and you\nagree that no such person will have any liability relating to the Information or for any errors therein or omissions therefrom. You further agree\nthat you are not entitled to rely on the accuracy or completeness of the Information and that you will be entitled to rely solely on such\nrepresentations and warranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and\nrestrictions as may be contained therein.\n6. You hereby acknowledge that you are aware, and that you will advise your Representatives who are informed of the matters that are the subject\nof this letter agreement, that the United States securities laws prohibit any person who has received from the issuer of such securities material,\nnonpublic information concerning the matters that are the subject of this letter agreement from purchasing or selling securities of such issuer or\nfrom communicating such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell\nsuch securities in reliance upon such information. You hereby represent that, as of the date hereof, you and your affiliates and associates (as\nsuch terms are defined in Rule 12b-2 of the Exchange Act), beneficially own in the aggregate less than 1.00% of the outstanding voting\nsecurities of the Company.\n7. Except as expressly contemplated thereby, your obligations under this letter agreement shall expire (i) upon the execution of a definitive\nagreement between you and the Company with respect to the Transaction or (ii) if such definitive agreement is not executed, three years from\nthe date of this letter agreement, as the case may be.\n8. You agree that, for a period of two years from the date of this letter agreement, neither you nor any of your affiliates (as such term is defined in\nRule 12b-2 of the Exchange Act) will (and neither you nor they will assist or encourage others to), without the prior written consent of the\nCompany or its Board of Directors: (i) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, directly or indirectly, by\npurchase or otherwise, ownership (including, without limitation, beneficial ownership as defined in Rule 13d-3 of the Exchange Act) of any\nvoting securities or direct or indirect rights or options to acquire any voting securities of the Company or any subsidiary thereof, or of any\nsuccessor to or person in control of the Company, any of the assets or businesses of the Company or any subsidiary or division thereof or of\nany such successor or controlling person or any bank debt, claims or other obligations of the Company or any rights or options to acquire\n(other than those currently owned) such ownership (including from a third party); (ii) enter into any contract, arrangement, understanding, plan\nor commitment in respect of any Derivative Securities (iii) seek or propose to influence or control the management or policies of the Company\nor to obtain representation on the Company’s Board of Directors, or solicit, or participate in the solicitation of, any proxies or consents with\nrespect to any securities of the Company, or make any public announcement with respect to any of the foregoing or request permission to do\nany of the foregoing; (iv) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any\nextraordinary transaction involving the Company or its securities or assets; or (v) enter into any discussions, negotiations, arrangements or\nunderstandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way participate in a “group” (as\ndefined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing. You will promptly\nadvise the Company of any inquiry or proposal made to you with respect to any of the foregoing unless you are prohibited from doing so in\nconnection with any existing confidentiality obligations you may have.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 4\nFor the purposes for this letter agreement, “Derivative Securities” means any securities that are the subject of any derivative or other\ntransaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of such securities due to\nthe fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether\n(i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is\ncapable of being or required to be settled by the payment of cash or through the delivery of such securities.\n9. You agree that, for a period of three years from the date of this letter agreement, you will not, without the prior written consent of Company,\ndirectly or indirectly, solicit for employment or hire any person who is now an employee of the Company; provided, however, that the\nforegoing provision will not prevent you from employing any such person who contacts you on his or her own initiative without any direct or\nindirect solicitation by or encouragement from you. You also agree that until the earlier of (a) the consummation of a Transaction between the\nCompany and you or (b) three years from the date of this letter agreement, you will not, without the prior written consent of the Company,\n(i) initiate or maintain contact (except in the ordinary course of business) with any officer, director, employee, supplier, distributor, broker or\ncustomer of the Company for the purposes of obtaining information regarding the Company’s operations, assets, prospects or finances or\n(ii) solicit or contract with any of the Company’s potential or actual suppliers, customers, distributors or brokers to the extent identified in the\nInformation except such that have entered into contracts or transactions with you or have engaged in negotiations with you in respect of\npotential contracts or transactions prior to the time of your receipt of such Information.\n10. You agree that all (i) communications regarding the Transaction, (ii) requests for additional information, facility tours or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be first submitted or directed to Wells\nFargo and not to the Company. You acknowledge and agree that (a) the Company and the Company Representatives are free to conduct the\nprocess relating to a possible Transaction as the Company and the Company Representatives, in their sole discretion, determine (including,\nwithout limitation, conduct of the due diligence process, negotiating with any prospective purchaser and entering into a preliminary or\ndefinitive agreement to effect a Transaction without prior notice to you or any other person), (b) the Company reserves the right, in its sole\ndiscretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to you or any other person,\nto reject any and all proposals made by you or any of your Representatives with respect to the Transaction and to terminate discussions and\nnegotiations with you at any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has\nbeen executed, neither the Company nor any of the Company Representatives will have any liability to you with respect to the Transaction or\nany obligation of any kind whatsoever with respect to a Transaction, whether by virtue of this letter agreement, any other written or oral\nexpression with respect to the Transaction or otherwise.\n11. The provisions of paragraph 8 hereof shall be inoperative and of no force or effect if, from and after the date hereof: (a) any person or group\nshall have acquired or entered into a binding definitive agreement that has been approved by the Board of Directors of the Company (or any\nduly constituted committee thereof composed entirely of independent directors) to acquire more than 50% of the Company or assets of the\nCompany or its subsidiaries representing more than 50% of the consolidated earnings power of the Company and its subsidiaries, taken as a\nwhole, (b) any person commences a tender or exchange offer which, if consummated, would result in such person’s acquisition of beneficial\nownership of more than 50% of the outstanding voting securities of the Company, and in connection therewith, the Company files with the\nSEC a Schedule 14D- 9 with respect to such offer; or (c) the Company’s Board of Directors (or any duly constituted committee thereof\ncomposed entirely of independent directors) shall have determined in good faith, after consultation with outside legal counsel, that the failure\nto waive, limit, amend, or otherwise modify this agreement would be reasonably likely to be inconsistent with the fiduciary duties of the\nCompany’s directors under applicable law; provided, however, that with respect to clauses (a), (b) and (c) of this sentence, you shall not have\nsolicited,\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 5\ninitiated, encouraged, or taken any action to facilitate or assist or participate with any such other person or group in connection with any of the\ntransactions contemplated by clauses (a), (b) and (c) of this sentence.\n12. You acknowledge that remedies at law may be inadequate to protect the Company against any actual or threatened breach of this letter\nagreement by the Company or the Company’s Representatives, and, without prejudice to any other rights and remedies otherwise available to\nthe Company, you agree to the granting of specific performance and injunctive or other equitable relief in the Company’s favor without proof\nof actual damages and you further agree to waive, and to use all reasonable efforts to cause your Representatives to waive, any requirement for\nthe securing or posting of any bond in connection with any such remedy. In the event of litigation relating to this letter agreement, if a court of\ncompetent jurisdiction determines in a final, nonappealable order that this letter agreement has been breached by either party or its\nRepresentatives, then the breaching party will reimburse the other party for its costs and expenses (including, without limitation, reasonable\nlegal fees and expenses) incurred in connection with all such litigation.\n13. You agree that no failure or delay by the Company or any of the Company Representatives in exercising any right hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right\nhereunder.\n14. This letter agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between\nresidents of Delaware and executed in and to be performed entirely within Delaware, without giving effect to any choice or conflict of law\nprovision or rule (whether of Oregon, Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other\nthan those of Delaware. Any legal suit, action or proceeding arising out of, based upon or relating to this Agreement shall be instituted in the\nfederal courts of the United States of America or the courts of the State of Oregon in each case located in the City of Portland and/or the\nCounty of Multnomah, Oregon, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or\nproceeding. Service of process, summons, notice or other document by mail shall be effective service of process for any suit, action or other\nproceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit,\naction or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or\nproceeding brought in any such court has been brought in an inconvenient forum.\n15. This letter agreement constitutes a binding agreement between you and the Company. No person other than you and the Company is intended\nto be a beneficiary of this letter agreement, and no person other than you and the Company shall have any right to enforce any term of this\nletter agreement.\n16. This letter agreement contains the entire agreement between you and the Company concerning the confidentiality of the Information, and no\nprovision of this letter agreement may be waived, amended or modified, in whole or in part, nor any consent given, unless approved in writing\nby a duly authorized representative of the Company, which writing specifically refers to this letter agreement and the provision so amended or\nmodified or for which such waiver or consent is given. In the event that any provision of this letter agreement is deemed invalid, illegal or\nunenforceable, the validity, legality and enforceability of the remaining provisions of this letter agreement will not in any way be affected or\nimpaired thereby.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 6\nPlease confirm your agreement with the foregoing by signing and returning a duplicate copy of this letter agreement, at which time this letter\nagreement shall become a binding agreement between you and the Company.\nVery truly yours,\nWELLS FARGO SECURITIES LLC,\nfor and on behalf of LaCrosse Footwear, Inc.\nBy: /s/ Samuel E. Farnham\nSamuel E. Farnham\nManaging Director\nAccepted and agreed to as of February 28, 2011:\nABC-MART, INC.\nBy:\n/s/ Minoru Noguchi\nName: Minoru Noguchi\nTitle: President	EX-99.(D)(2) 9 d380892dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nl».LOGO\nWells Fargo Securities, LL.C\n301 South College Street\nCharlotte, NC 28288-8905\nFebruary 28, 2011\nABC-Mart, Inc.\nc/o Barclays Capital\n745 Seventh Avenue\nNew York, NY 10019\nAttention: Ari D. Berger, Managing Director\nRetail & Apparel Investment Banking Group\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nYou have expressed interest in pursuing the acquisition of LaCrosse Footwear, Inc. (the “Company”), which is represented by Wells Fargo\nSecurities LLC (“Wells Fargo™), through the purchase of all the capital stock of the Company (the “Transaction”). You have requested that the\nCompany or its representatives furnish you or your representatives with certain information relating to the Company or the Transaction. All such\ninformation (whether written or oral) furnished (whether before or after the date hereof) by the Company or its directors, officers, employees,\naffiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents (collectively, “the Company\nRepresentatives™) to you or your directors, officers, employees, affiliates, representatives (including, without limitation, financial advisors,\nattorneys and accountants) or agents (collectively, “your Representatives”) and all analyses, compilations, forecasts, studies or other documents\nprepared by you or your Representatives in connection with your or their review of, or your interest in, the Transaction which contain or reflect any\nsuch information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by you or your Representatives in violation of this letter agreement or other\nobligation of confidentiality, (ii) is already known to you at the time of its receipt form the Company or the Company Representatives, (iii) is or\nbecomes available to you on a nonconfidential basis from a source (other than the Company or its Representatives) not known by you to be\nprohibited from disclosing such information to you by a legal, contractual or fiduciary obligation, or (iv) has been independently developed by you\nor any of your Representatives without reference to any of the Information.\n».LOGO\nWells Fargo Securities, LLC February 28, 2011 Page 2 Accordingly, you hereby agree that: 1. You and your Representatives (i) will keep the Information confidential and will not (except as required by applicable law, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the Company’s prior written consent, disclose any Information in any\nmanner whatsoever, in whole or in part, (ii) will not use any Information other than in connection with the Transaction; provided, however, that\nyou may reveal the Information or portions thereof to your Representatives (a) who need to know the Information for the purpose of evaluating\nthe Transaction, (b) who are informed by you of the confidential nature of the Information and (c) who are directed by you to treat the\nInformation in a manner consistent with the terms of this letter agreement. You will be responsible for any breach of this letter agreement by\nany of your Representatives. You and the Company shall be permitted to disclose the tax treatment and tax structure of the Transaction\n(including any materials, opinions or analyses relating to such tax treatment or tax structure, but without disclosure of identifying information\nor, except to the extent relating to such tax structure or tax treatment, any nonpublic commercial or financial information) on and after the\nearliest to occur of the date of (i) public announcement of discussions relating to the Transaction, (ii) public announcement of the Transaction\nor (iii) execution of a definitive agreement (with or without conditions) to enter into the Transaction; provided, however, that if the Transaction\nis not consummated for any reason, the provisions of this sentence shall cease to apply.\nYou and your Representatives will not (except as required by applicable law, regulation or legal process, and only after compliance with\nparagraph 3 below), without the Company’s prior written consent, disclose to any person the fact that the Information exists or has been made\navailable, that you are considering the Transaction involving the Company, or that discussions or negotiations are taking or have taken place\nconcerning the Transaction or involving the Company or any term, condition or other fact relating to the Transaction or such discussions or\nnegotiations, including, without limitation, the status thereof or the subject matter of this letter agreement.\nIn the event that you or any of your Representatives are requested pursuant to, or required by, applicable law, regulation or legal process to\ndisclose any of the Information, you will notify the Company promptly (unless prohibited by law) so that the Company may seek an\nappropriate protective order or other appropriate remedy or, in the Company’s sole discretion, waive compliance with the terms of this letter\nagreement (and if the Company seeks such an order, you will provide such cooperation as the Company shall reasonably request). In the event\nthat no such protective order or other remedy is obtained or that the Company waives compliance with the terms of this letter agreement and\nthat you or any of your Representatives are nonetheless legally compelled to disclose such Information, you or your Representatives, as the\ncase may be, will furnish only that portion of the Information which you are advised by counsel is legally required and will give the Company\nwritten notice (unless prohibited by law) of the Information to be disclosed as far in advance as practicable and exercise all reasonable efforts\nto obtain reliable assurance that confidential treatment will be accorded the Information.\nIf you determine not to proceed with the Transaction, you will promptly inform Wells Fargo, of that decision and, in that case, and at any time\nupon the request of the Company or any of the Company Representatives, you will (i) promptly deliver to the Company at your own expense\nor, at the Company’s written request, destroy all copies, whether stored electronically or otherwise, of the written Information in your or your\nRepresentatives’ possession that was delivered to you by the Company or on its behalf and (ii) promptly destroy all analyses, compilations,\nsummaries, studies and other material prepared by you or your Representatives and based in whole or in part on, or otherwise containing or\nreflecting any of, the Information. You will confirm any such destruction to the Company in writing. Any orally disclosed Information will\ncontinue to be subject to the terms of this letter agreement. Notwithstanding the foregoing, and for the avoidance of doubt, neither you nor any\nof your Representatives shall be under any obligation to return or destroy any Information that you or any of your Representatives is required\nto retain pursuant to any laws or regulations, or pursuant to any internal rules required by laws or regulations, and you may retain one copy of\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 3\nthe information in a form acceptable to you at the office of your general counsel solely for the purpose of preserving a record of the\nInformation you or any of your representatives has received and of using such Information to defend yourself or any of your Representatives\nagainst any claims, lawsuit or other administrative or legal action, which may be threatened or instituted in connection with the Information.\n5. You acknowledge that neither the Company, nor Wells Fargo, nor any of the Company’s other Representatives, nor any of their respective\nofficers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the\n“Exchange Act”), make any representation or warranty, express or implied, as to the accuracy or completeness of the Information, and you\nagree that no such person will have any liability relating to the Information or for any errors therein or omissions therefrom. You further agree\nthat you are not entitled to rely on the accuracy or completeness of the Information and that you will be entitled to rely solely on such\nrepresentations and warranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and\nrestrictions as may be contained therein.\n6.  You hereby acknowledge that you are aware, and that you will advise your Representatives who are informed of the matters that are the subject\nof this letter agreement, that the United States securities laws prohibit any person who has received from the issuer of such securities material,\nnonpublic information concerning the matters that are the subject of this letter agreement from purchasing or selling securities of such issuer or\nfrom communicating such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell\nsuch securities in reliance upon such information. You hereby represent that, as of the date hereof, you and your affiliates and associates (as\nsuch terms are defined in Rule 12b-2 of the Exchange Act), beneficially own in the aggregate less than 1.00% of the outstanding voting\nsecurities of the Company.\n7.  Except as expressly contemplated thereby, your obligations under this letter agreement shall expire (i) upon the execution of a definitive\nagreement between you and the Company with respect to the Transaction or (ii) if such definitive agreement is not executed, three years from\nthe date of this letter agreement, as the case may be.\n8.  You agree that, for a period of two years from the date of this letter agreement, neither you nor any of your affiliates (as such term is defined in\nRule 12b-2 of the Exchange Act) will (and neither you nor they will assist or encourage others to), without the prior written consent of the\nCompany or its Board of Directors: (i) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, directly or indirectly, by\npurchase or otherwise, ownership (including, without limitation, beneficial ownership as defined in Rule 13d-3 of the Exchange Act) of any\nvoting securities or direct or indirect rights or options to acquire any voting securities of the Company or any subsidiary thereof, or of any\nsuccessor to or person in control of the Company, any of the assets or businesses of the Company or any subsidiary or division thereof or of\nany such successor or controlling person or any bank debt, claims or other obligations of the Company or any rights or options to acquire\n(other than those currently owned) such ownership (including from a third party); (ii) enter into any contract, arrangement, understanding, plan\nor commitment in respect of any Derivative Securities (iii) seek or propose to influence or control the management or policies of the Company\nor to obtain representation on the Company’s Board of Directors, or solicit, or participate in the solicitation of, any proxies or consents with\nrespect to any securities of the Company, or make any public announcement with respect to any of the foregoing or request permission to do\nany of the foregoing; (iv) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any\nextraordinary transaction involving the Company or its securities or assets; or (v) enter into any discussions, negotiations, arrangements or\nunderstandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way participate in a “group” (as\ndefined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing. You will promptly\nadvise the Company of any inquiry or proposal made to you with respect to any of the foregoing unless you are prohibited from doing so in\nconnection with any existing confidentiality obligations you may have.\nWells Fargo Securities, LLC February 28, 2011 Page 4 10. 11. For the purposes for this letter agreement, “Derivative Securities” means any securities that are the subject of any derivative or other\ntransaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of such securities due to\nthe fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether\n(i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is\ncapable of being or required to be settled by the payment of cash or through the delivery of such securities.\nYou agree that, for a period of three years from the date of this letter agreement, you will not, without the prior written consent of Company,\ndirectly or indirectly, solicit for employment or hire any person who is now an employee of the Company; provided, however, that the\nforegoing provision will not prevent you from employing any such person who contacts you on his or her own initiative without any direct or\nindirect solicitation by or encouragement from you. You also agree that until the earlier of (a) the consummation of a Transaction between the\nCompany and you or (b) three years from the date of this letter agreement, you will not, without the prior written consent of the Company,\n(i) initiate or maintain contact (except in the ordinary course of business) with any officer, director, employee, supplier, distributor, broker or\ncustomer of the Company for the purposes of obtaining information regarding the Company’s operations, assets, prospects or finances or\n(ii) solicit or contract with any of the Company’s potential or actual suppliers, customers, distributors or brokers to the extent identified in the\nInformation except such that have entered into contracts or transactions with you or have engaged in negotiations with you in respect of\npotential contracts or transactions prior to the time of your receipt of such Information.\nYou agree that all (i) communications regarding the Transaction, (ii) requests for additional information, facility tours or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be first submitted or directed to Wells\nFargo and not to the Company. You acknowledge and agree that (a) the Company and the Company Representatives are free to conduct the\nprocess relating to a possible Transaction as the Company and the Company Representatives, in their sole discretion, determine (including,\nwithout limitation, conduct of the due diligence process, negotiating with any prospective purchaser and entering into a preliminary or\ndefinitive agreement to effect a Transaction without prior notice to you or any other person), (b) the Company reserves the right, in its sole\ndiscretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to you or any other person,\nto reject any and all proposals made by you or any of your Representatives with respect to the Transaction and to terminate discussions and\nnegotiations with you at any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has\nbeen executed, neither the Company nor any of the Company Representatives will have any liability to you with respect to the Transaction or\nany obligation of any kind whatsoever with respect to a Transaction, whether by virtue of this letter agreement, any other written or oral\nexpression with respect to the Transaction or otherwise.\nThe provisions of paragraph 8 hereof shall be inoperative and of no force or effect if, from and after the date hereof: (a) any person or group\nshall have acquired or entered into a binding definitive agreement that has been approved by the Board of Directors of the Company (or any\nduly constituted committee thereof composed entirely of independent directors) to acquire more than 50% of the Company or assets of the\nCompany or its subsidiaries representing more than 50% of the consolidated earnings power of the Company and its subsidiaries, taken as a\nwhole, (b) any person commences a tender or exchange offer which, if consummated, would result in such person’s acquisition of beneficial\nownership of more than 50% of the outstanding voting securities of the Company, and in connection therewith, the Company files with the\nSEC a Schedule 14D- 9 with respect to such offer; or (c) the Company’s Board of Directors (or any duly constituted committee thereof\ncomposed entirely of independent directors) shall have determined in good faith, after consultation with outside legal counsel, that the failure\nto waive, limit, amend, or otherwise modify this agreement would be reasonably likely to be inconsistent with the fiduciary duties of the\nCompany’s directors under applicable law; provided, however, that with respect to clauses (a), (b) and (c) of this sentence, you shall not have\nsolicited,\nWells Fargo Securities, LLC February 28, 2011 Page 5 12. 13. 14. 15. 16. initiated, encouraged, or taken any action to facilitate or assist or participate with any such other person or group in connection with any of the\ntransactions contemplated by clauses (a), (b) and (c) of this sentence.\nYou acknowledge that remedies at law may be inadequate to protect the Company against any actual or threatened breach of this letter\nagreement by the Company or the Company’s Representatives, and, without prejudice to any other rights and remedies otherwise available to\nthe Company, you agree to the granting of specific performance and injunctive or other equitable relief in the Company’s favor without proof\nof actual damages and you further agree to waive, and to use all reasonable efforts to cause your Representatives to waive, any requirement for\nthe securing or posting of any bond in connection with any such remedy. In the event of litigation relating to this letter agreement, if a court of\ncompetent jurisdiction determines in a final, nonappealable order that this letter agreement has been breached by either party or its\nRepresentatives, then the breaching party will reimburse the other party for its costs and expenses (including, without limitation, reasonable\nlegal fees and expenses) incurred in connection with all such litigation.\nYou agree that no failure or delay by the Company or any of the Company Representatives in exercising any right hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right\nhereunder.\nThis letter agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between\nresidents of Delaware and executed in and to be performed entirely within Delaware, without giving effect to any choice or conflict of law\nprovision or rule (whether of Oregon, Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other\nthan those of Delaware. Any legal suit, action or proceeding arising out of, based upon or relating to this Agreement shall be instituted in the\nfederal courts of the United States of America or the courts of the State of Oregon in each case located in the City of Portland and/or the\nCounty of Multnomah, Oregon, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or\nproceeding. Service of process, summons, notice or other document by mail shall be effective service of process for any suit, action or other\nproceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit,\naction or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or\nproceeding brought in any such court has been brought in an inconvenient forum.\nThis letter agreement constitutes a binding agreement between you and the Company. No person other than you and the Company is intended\nto be a beneficiary of this letter agreement, and no person other than you and the Company shall have any right to enforce any term of this\nletter agreement.\nThis letter agreement contains the entire agreement between you and the Company concerning the confidentiality of the Information, and no\nprovision of this letter agreement may be waived, amended or modified, in whole or in part, nor any consent given, unless approved in writing\nby a duly authorized representative of the Company, which writing specifically refers to this letter agreement and the provision so amended or\nmodified or for which such waiver or consent is given. In the event that any provision of this letter agreement is deemed invalid, illegal or\nunenforceable, the validity, legality and enforceability of the remaining provisions of this letter agreement will not in any way be affected or\nimpaired thereby.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 6\nPlease confirm your agreement with the foregoing by signing and returning a duplicate copy of this letter agreement, at which time this letter\nagreement shall become a binding agreement between you and the Company.\nVery truly yours,\nWELLS FARGO SECURITIES LLC,\nfor and on behalf of LaCrosse Footwear, Inc.\nBy: /s/ Samuel E. Farnham\nSamuel E. Farnham\nManaging Director\nAccepted and agreed to as of February 28, 2011:\nABC-MART, INC.\nBy: /s/  Minoru Noguchi\nName: Minoru Noguchi\nTitle: President	EX-99.(D)(2) 9 d380892dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nLOGO\nWells Fargo Securities, LLC\n301 South College Street\nCharlotte, NC 28288-8905\nFebruary 28, 2011\nABC-Mart, Inc.\nc/o Barclays Capital\n745 Seventh Avenue\nNew York, NY 10019\nAttention:\nAri D. Berger, Managing Director\nRetail & Apparel Investment Banking Group\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nYou have expressed interest in pursuing the acquisition of LaCrosse Footwear, Inc. (the "Company"), which is represented by Wells Fargo\nSecurities LLC ("Wells Fargo"), through the purchase of all the capital stock of the Company (the "Transaction"). You have requested that the\nCompany or its representatives furnish you or your representatives with certain information relating to the Company or the Transaction. All such\ninformation (whether written or oral) furnished (whether before or after the date hereof) by the Company or its directors, officers, employees,\naffiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents (collectively, "the Company\nRepresentatives") to you or your directors, officers, employees, affiliates, representatives (including, without limitation, financial advisors,\nattorneys and accountants) or agents (collectively, "your Representatives") and all analyses, compilations, forecasts, studies or other documents\nprepared by you or your Representatives in connection with your or their review of, or your interest in, the Transaction which contain or reflect any\nsuch information is hereinafter referred to as the "Information." The term Information will not, however, include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by you or your Representatives in violation of this letter agreement or other\nobligation of confidentiality, (ii) is already known to you at the time of its receipt form the Company or the Company Representatives, (iii) is or\nbecomes available to you on a nonconfidential basis from a source (other than the Company or its Representatives) not known by you to be\nprohibited from disclosing such information to you by a legal, contractual or fiduciary obligation, or (iv) has been independently developed by you\nor any of your Representatives without reference to any of the Information.\nLOGO\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 2\nAccordingly, you hereby agree that:\n1.\nYou and your Representatives (i) will keep the Information confidential and will not (except as required by applicable law, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the Company's prior written consent, disclose any Information in any\nmanner whatsoever, in whole or in part, (ii) will not use any Information other than in connection with the Transaction; provided, however, that\nyou may reveal the Information or portions thereof to your Representatives (a) who need to know the Information for the purpose of evaluating\nthe Transaction, (b) who are informed by you of the confidential nature of the Information and (c) who are directed by you to treat the\nInformation in a manner consistent with the terms of this letter agreement. You will be responsible for any breach of this letter agreement by\nany\nof your Representatives. You and the Company shall be permitted to disclose the tax treatment and tax structure of the Transaction\n(including any materials, opinions or analyses relating to such tax treatment or tax structure, but without disclosure of identifying information\nor, except to the extent relating to such tax structure or tax treatment, any nonpublic commercial or financial information) on and after the\nearliest to occur of the date of (i) public announcement of discussions relating to the Transaction, (ii) public announcement of the Transaction\nor (iii) execution of a definitive agreement (with or without conditions) to enter into the Transaction; provided, however, that if the Transaction\nis not consummated for any reason, the provisions of this sentence shall cease to apply.\n2.\nYou and your Representatives will not (except as required by applicable law, regulation or legal process, and only after compliance with\nparagraph 3 below), without the Company's prior written consent, disclose to any person the fact that the Information exists or has been made\navailable, that you are considering the Transaction involving the Company, or that discussions or negotiations are taking or have taken place\nconcerning the Transaction or involving the Company or any term, condition or other fact relating to the Transaction or such discussions or\nnegotiations, including, without limitation, the status thereof or the subject matter of this letter agreement.\n3.\nIn the event that you or any of your Representatives are requested pursuant to, or required by, applicable law, regulation or legal process to\ndisclose any of the Information, you will notify the Company promptly (unless prohibited by law) so that the Company may seek an\nappropriate protective order or other appropriate remedy or, in the Company's sole discretion, waive compliance with the terms of this letter\nagreement (and if the Company seeks such an order, you will provide such cooperation as the Company shall reasonably request). In the event\nthat no such protective order or other remedy is obtained or that the Company waives compliance with the terms of this letter agreement and\nthat you or any of your Representatives are nonetheless legally compelled to disclose such Information, you or your Representatives, as the\ncase may be, will furnish only that portion of the Information which you are advised by counsel is legally required and will give the Company\nwritten notice (unless prohibited by law) of the Information to be disclosed as far in advance as practicable and exercise all reasonable efforts\nto obtain reliable assurance that confidential treatment will be accorded the Information.\n4. If you determine not to proceed with the Transaction, you will promptly inform Wells Fargo, of that decision and, in that case, and at any time\nupon the request of the Company or any of the Company Representatives, you will (i) promptly deliver to the Company at your own expense\nor, at the Company's written request, destroy all copies, whether stored electronically or otherwise, of the written Information in your or your\nRepresentatives' possession that was delivered to you by the Company or on its behalf and (ii) promptly destroy all analyses, compilations,\nsummaries, studies and other material prepared by you or your Representatives and based in whole or in part on, or otherwise containing or\nreflecting any of, the Information. You will confirm any such destruction to the Company in writing. Any orally disclosed Information will\ncontinue to be subject to the terms of this letter agreement. Notwithstanding the foregoing, and for the avoidance of doubt, neither you nor any\nof your Representatives shall be under any obligation to return or destroy any Information that you or any of your Representatives is required\nto retain pursuant to any laws or regulations, or pursuant to any internal rules required by laws or regulations, and you may retain one copy of\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 3\nthe information in a form acceptable to you at the office of your general counsel solely for the purpose of preserving a record of the\nInformation you or any of your representatives has received and of using such Information to defend yourself or any of your Representatives\nagainst any claims, lawsuit or other administrative or legal action, which may be threatened or instituted in connection with the Information.\n5.\nYou acknowledge that neither the Company, nor Wells Fargo, nor any of the Company's other Representatives, nor any of their respective\nofficers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the\n"Exchange Act"), make any representation or warranty, express or implied, as to the accuracy or completeness of the Information, and you\nagree that no such person will have any liability relating to the Information or for any errors therein or omissions therefrom. You further agree\nthat you are not entitled to rely on the accuracy or completeness of the Information and that you will be entitled to rely solely on such\nrepresentations and warranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and\nrestrictions as may be contained therein.\n6.\nYou hereby acknowledge that you are aware, and that you will advise your Representatives who are informed of the matters that are the subject\nof this letter agreement, that the United States securities laws prohibit any person who has received from the issuer of such securities material,\nnonpublic information concerning the matters that are the subject of this letter agreement from purchasing or selling securities of such issuer or\nfrom communicating such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell\nsuch securities in reliance upon such information. You hereby represent that, as of the date hereof, you and your affiliates and associates (as\nsuch terms are defined in Rule 12b-2 of the Exchange Act), beneficially own in the aggregate less than 1.00% of the outstanding voting\nsecurities of the Company.\n7.\nExcept as expressly contemplated thereby, your obligations under this letter agreement shall expire (i) upon the execution of a definitive\nagreement between you and the Company with respect to the Transaction or (ii) if such definitive agreement is not executed, three years from\nthe date of this letter agreement, as the case may be.\n8.\nYou agree that, for a period of two years from the date of this letter agreement, neither you nor any of your affiliates (as such term is defined in\nRule 12b-2 of the Exchange Act) will (and neither you nor they will assist or encourage others to), without the prior written consent of the\nCompany or its Board of Directors: (i) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, directly or indirectly, by\npurchase or otherwise, ownership (including, without limitation, beneficial ownership as defined in Rule 13d-3 of the Exchange Act) of any\nvoting securities or direct or indirect rights or options to acquire any voting securities of the Company or any subsidiary thereof, or of any\nsuccessor to or person in control of the Company, any of the assets or businesses of the Company or any subsidiary or division thereof or of\nany such successor or controlling person or any bank debt, claims or other obligations of the Company or any rights or options to acquire\n(other than those currently owned) such ownership (including from a third party); (ii) enter into any contract, arrangement, understanding, plan\nor commitment in respect of any Derivative Securities (iii) seek or propose to influence or control the management or policies of the Company\nor to obtain representation on the Company's Board of Directors, or solicit, or participate in the solicitation of, any proxies or consents with\nrespect to any securities of the Company, or make any public announcement with respect to any of the foregoing or request permission to do\nany of the foregoing; (iv) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions)\nany\nextraordinary transaction involving the Company or its securities or assets; or (v) enter into any discussions, negotiations, arrangements or\nunderstandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way participate in a "group" (as\ndefined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing. You will\npromptly\nadvise the Company of any inquiry or proposal made to you with respect to any of the foregoing unless you are prohibited from doing so in\nconnection with any existing confidentiality obligations you may have.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 4\nFor the purposes for this letter agreement, "Derivative Securities" means any securities that are the subject of any derivative or other\ntransaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of such securities due to\nthe fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether\n(i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is\ncapable of being or required to be settled by the payment of cash or through the delivery of such securities.\n9.\nYou agree that, for a period of three years from the date of this letter agreement, you will not, without the prior written consent of Company,\ndirectly or indirectly, solicit for employment or hire any person who is now an employee of the Company; provided, however, that the\nforegoing provision will not prevent you from employing any such person who contacts you on his or her own initiative without any direct or\nindirect solicitation by or encouragement from you. You also agree that until the earlier of (a) the consummation of a Transaction between the\nCompany and you or (b) three years from the date of this letter agreement, you will not, without the prior written consent of the Company,\n(i) initiate or maintain contact (except in the ordinary course of business) with any officer, director, employee, supplier, distributor, broker or\ncustomer of the Company for the purposes of obtaining information regarding the Company's operations, assets, prospects or finances or\n(ii) solicit or contract with any of the Company's potential or actual suppliers, customers, distributors or brokers to the extent identified in the\nInformation except such that have entered into contracts or transactions with you or have engaged in negotiations with you in respect of\npotential contracts or transactions prior to the time of your receipt of such Information.\n10. You agree that all (i) communications regarding the Transaction, (ii) requests for additional information, facility tours or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be first submitted or directed to Wells\nFargo and not to the Company. You acknowledge and agree that (a) the Company and the Company Representatives are free to conduct the\nprocess relating to a possible Transaction as the Company and the Company Representatives, in their sole discretion, determine (including,\nwithout limitation, conduct of the due diligence process, negotiating with any prospective purchaser and entering into a preliminary or\ndefinitive agreement to effect a Transaction without prior notice to you or any other person), (b) the Company reserves the right, in its sole\ndiscretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to you or any other person,\nto reject any and all proposals made by you or any of your Representatives with respect to the Transaction and to terminate discussions and\nnegotiations with you at any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has\nbeen executed, neither the Company nor any of the Company Representatives will have any liability to you with respect to the Transaction or\nany obligation of any kind whatsoever with respect to a Transaction, whether by virtue of this letter agreement, any other written or oral\nexpression with respect to the Transaction or otherwise.\n11. The provisions of paragraph 8 hereof shall be inoperative and of no force or effect if, from and after the date hereof: (a) any person or group\nshall have acquired or entered into a binding definitive agreement that has been approved by the Board of Directors of the Company (or any\nduly constituted committee thereof composed entirely of independent directors) to acquire more than 50% of the Company or assets of the\nCompany or its subsidiaries representing more than 50% of the consolidated earnings power of the Company and its subsidiaries, taken as a\nwhole, (b) any person commences a tender or exchange offer which, if consummated, would result in such person's acquisition of beneficial\nownership of more than 50% of the outstanding voting securities of the Company, and in connection therewith, the Company files with the\nSEC a Schedule 14D- with respect to such offer; or (c) the Company's Board of Directors (or any duly constituted committee thereof\ncomposed entirely of independent directors) shall have determined in good faith, after consultation with outside legal counsel, that the failure\nto waive, limit, amend, or otherwise modify this agreement would be reasonably likely to be inconsistent with the fiduciary duties of the\nCompany's directors under applicable law; provided, however, that with respect to clauses (a), (b) and (c) of this sentence, you shall not have\nsolicited,\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 5\ninitiated, encouraged, or taken any action to facilitate or assist or participate with any such other person or group in connection with any of the\ntransactions contemplated by clauses (a), (b) and (c) of this sentence.\n12. You acknowledge that remedies at law may be inadequate to protect the Company against any actual or threatened breach of this letter\nagreement by the Company or the Company's Representatives, and, without prejudice to any other rights and remedies otherwise available to\nthe Company, you agree to the granting of specific performance and injunctive or other equitable relief in the Company's favor without proof\nof actual damages and you further agree to waive, and to use all reasonable efforts to cause your Representatives to waive, any requirement for\nthe securing or posting of any bond in connection with any such remedy. In the event of litigation relating to this letter agreement, if a court of\ncompetent jurisdiction determines in a final, nonappealable order that this letter agreement has been breached by either party or its\nRepresentatives, then the breaching party will reimburse the other party for its costs and expenses (including, without limitation, reasonable\nlegal fees and expenses) incurred in connection with all such litigation.\n13. You agree that no failure or delay by the Company or any of the Company Representatives in exercising any right hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right\nhereunder.\n14. This letter agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between\nresidents of Delaware and executed in and to be performed entirely within Delaware, without giving effect to any choice or conflict of law\nprovision or rule (whether of Oregon, Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other\nthan those of Delaware. Any legal suit, action or proceeding arising out of, based upon or relating to this Agreement shall be instituted in the\nfederal courts of the United States of America or the courts of the State of Oregon in each case located in the City of Portland and/or the\nCounty of Multnomah, Oregon, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or\nproceeding. Service of process, summons, notice or other document by mail shall be effective service of process for any suit, action or other\nproceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit,\naction or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or\nproceeding brought in any such court has been brought in an inconvenient forum.\n15. This letter agreement constitutes a binding agreement between you and the Company. No person other than you and the Company is intended\nto be a beneficiary of this letter agreement, and no person other than you and the Company shall have any right to enforce any term of this\nletter agreement.\n16. This letter agreement contains the entire agreement between you and the Company concerning the confidentiality of the Information, and no\nprovision of this letter agreement may be waived, amended or modified, in whole or in part, nor any consent given, unless approved in writing\nby a duly authorized representative of the Company, which writing specifically refers to this letter agreement and the provision so amended or\nmodified or for which such waiver or consent is given. In the event that any provision of this letter agreement is deemed invalid, illegal or\nunenforceable, the validity, legality and enforceability of the remaining provisions of this letter agreement will not in any way be affected\nor\nimpaired thereby.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 6\nPlease confirm your agreement with the foregoing by signing and returning a duplicate copy of this letter agreement, at which time this letter\nagreement shall become a binding agreement between you and the Company.\nVery truly yours,\nWELLS FARGO SECURITIES LLC,\nfor and on behalf of LaCrosse Footwear, Inc.\nBy: /s/ Samuel E. Farnham\nSamuel E. Farnham\nManaging Director\nAccepted and agreed to as of February 28, 2011:\nABC-MART, INC.\nBy:\n/s/ Minoru Noguchi\nName: Minoru Noguchi\nTitle: President	EX-99.(D)(2) 9 d380892dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nLOGO\nWells Fargo Securities, LLC\n301 South College Street\nCharlotte, NC 28288-8905\nFebruary 28, 2011\nABC-Mart, Inc.\nc/o Barclays Capital\n745 Seventh Avenue\nNew York, NY 10019\nAttention:\nAri D. Berger, Managing Director\nRetail & Apparel Investment Banking Group\nCONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nYou have expressed interest in pursuing the acquisition of LaCrosse Footwear, Inc. (the “Company”), which is represented by Wells Fargo\nSecurities LLC (“Wells Fargo”), through the purchase of all the capital stock of the Company (the “Transaction”). You have requested that the\nCompany or its representatives furnish you or your representatives with certain information relating to the Company or the Transaction. All such\ninformation (whether written or oral) furnished (whether before or after the date hereof) by the Company or its directors, officers, employees,\naffiliates, representatives (including, without limitation, financial advisors, attorneys and accountants) or agents (collectively, “the Company\nRepresentatives”) to you or your directors, officers, employees, affiliates, representatives (including, without limitation, financial advisors,\nattorneys and accountants) or agents (collectively, “your Representatives”) and all analyses, compilations, forecasts, studies or other documents\nprepared by you or your Representatives in connection with your or their review of, or your interest in, the Transaction which contain or reflect any\nsuch information is hereinafter referred to as the “Information.” The term Information will not, however, include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by you or your Representatives in violation of this letter agreement or other\nobligation of confidentiality, (ii) is already known to you at the time of its receipt form the Company or the Company Representatives, (iii) is or\nbecomes available to you on a nonconfidential basis from a source (other than the Company or its Representatives) not known by you to be\nprohibited from disclosing such information to you by a legal, contractual or fiduciary obligation, or (iv) has been independently developed by you\nor any of your Representatives without reference to any of the Information.\nLOGO\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 2\nAccordingly, you hereby agree that:\n1. You and your Representatives (i) will keep the Information confidential and will not (except as required by applicable law, regulation or legal\nprocess, and only after compliance with paragraph 3 below), without the Company’s prior written consent, disclose any Information in any\nmanner whatsoever, in whole or in part, (ii) will not use any Information other than in connection with the Transaction; provided, however, that\nyou may reveal the Information or portions thereof to your Representatives (a) who need to know the Information for the purpose of evaluating\nthe Transaction, (b) who are informed by you of the confidential nature of the Information and (c) who are directed by you to treat the\nInformation in a manner consistent with the terms of this letter agreement. You will be responsible for any breach of this letter agreement by\nany of your Representatives. You and the Company shall be permitted to disclose the tax treatment and tax structure of the Transaction\n(including any materials, opinions or analyses relating to such tax treatment or tax structure, but without disclosure of identifying information\nor, except to the extent relating to such tax structure or tax treatment, any nonpublic commercial or financial information) on and after the\nearliest to occur of the date of (i) public announcement of discussions relating to the Transaction, (ii) public announcement of the Transaction\nor (iii) execution of a definitive agreement (with or without conditions) to enter into the Transaction; provided, however, that if the Transaction\nis not consummated for any reason, the provisions of this sentence shall cease to apply.\n2. You and your Representatives will not (except as required by applicable law, regulation or legal process, and only after compliance with\nparagraph 3 below), without the Company’s prior written consent, disclose to any person the fact that the Information exists or has been made\navailable, that you are considering the Transaction involving the Company, or that discussions or negotiations are taking or have taken place\nconcerning the Transaction or involving the Company or any term, condition or other fact relating to the Transaction or such discussions or\nnegotiations, including, without limitation, the status thereof or the subject matter of this letter agreement.\n3. In the event that you or any of your Representatives are requested pursuant to, or required by, applicable law, regulation or legal process to\ndisclose any of the Information, you will notify the Company promptly (unless prohibited by law) so that the Company may seek an\nappropriate protective order or other appropriate remedy or, in the Company’s sole discretion, waive compliance with the terms of this letter\nagreement (and if the Company seeks such an order, you will provide such cooperation as the Company shall reasonably request). In the event\nthat no such protective order or other remedy is obtained or that the Company waives compliance with the terms of this letter agreement and\nthat you or any of your Representatives are nonetheless legally compelled to disclose such Information, you or your Representatives, as the\ncase may be, will furnish only that portion of the Information which you are advised by counsel is legally required and will give the Company\nwritten notice (unless prohibited by law) of the Information to be disclosed as far in advance as practicable and exercise all reasonable efforts\nto obtain reliable assurance that confidential treatment will be accorded the Information.\n4. If you determine not to proceed with the Transaction, you will promptly inform Wells Fargo, of that decision and, in that case, and at any time\nupon the request of the Company or any of the Company Representatives, you will (i) promptly deliver to the Company at your own expense\nor, at the Company’s written request, destroy all copies, whether stored electronically or otherwise, of the written Information in your or your\nRepresentatives’ possession that was delivered to you by the Company or on its behalf and (ii) promptly destroy all analyses, compilations,\nsummaries, studies and other material prepared by you or your Representatives and based in whole or in part on, or otherwise containing or\nreflecting any of, the Information. You will confirm any such destruction to the Company in writing. Any orally disclosed Information will\ncontinue to be subject to the terms of this letter agreement. Notwithstanding the foregoing, and for the avoidance of doubt, neither you nor any\nof your Representatives shall be under any obligation to return or destroy any Information that you or any of your Representatives is required\nto retain pursuant to any laws or regulations, or pursuant to any internal rules required by laws or regulations, and you may retain one copy of\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 3\nthe information in a form acceptable to you at the office of your general counsel solely for the purpose of preserving a record of the\nInformation you or any of your representatives has received and of using such Information to defend yourself or any of your Representatives\nagainst any claims, lawsuit or other administrative or legal action, which may be threatened or instituted in connection with the Information.\n5. You acknowledge that neither the Company, nor Wells Fargo, nor any of the Company’s other Representatives, nor any of their respective\nofficers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the\n“Exchange Act”), make any representation or warranty, express or implied, as to the accuracy or completeness of the Information, and you\nagree that no such person will have any liability relating to the Information or for any errors therein or omissions therefrom. You further agree\nthat you are not entitled to rely on the accuracy or completeness of the Information and that you will be entitled to rely solely on such\nrepresentations and warranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and\nrestrictions as may be contained therein.\n6. You hereby acknowledge that you are aware, and that you will advise your Representatives who are informed of the matters that are the subject\nof this letter agreement, that the United States securities laws prohibit any person who has received from the issuer of such securities material,\nnonpublic information concerning the matters that are the subject of this letter agreement from purchasing or selling securities of such issuer or\nfrom communicating such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell\nsuch securities in reliance upon such information. You hereby represent that, as of the date hereof, you and your affiliates and associates (as\nsuch terms are defined in Rule 12b-2 of the Exchange Act), beneficially own in the aggregate less than 1.00% of the outstanding voting\nsecurities of the Company.\n7. Except as expressly contemplated thereby, your obligations under this letter agreement shall expire (i) upon the execution of a definitive\nagreement between you and the Company with respect to the Transaction or (ii) if such definitive agreement is not executed, three years from\nthe date of this letter agreement, as the case may be.\n8. You agree that, for a period of two years from the date of this letter agreement, neither you nor any of your affiliates (as such term is defined in\nRule 12b-2 of the Exchange Act) will (and neither you nor they will assist or encourage others to), without the prior written consent of the\nCompany or its Board of Directors: (i) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, directly or indirectly, by\npurchase or otherwise, ownership (including, without limitation, beneficial ownership as defined in Rule 13d-3 of the Exchange Act) of any\nvoting securities or direct or indirect rights or options to acquire any voting securities of the Company or any subsidiary thereof, or of any\nsuccessor to or person in control of the Company, any of the assets or businesses of the Company or any subsidiary or division thereof or of\nany such successor or controlling person or any bank debt, claims or other obligations of the Company or any rights or options to acquire\n(other than those currently owned) such ownership (including from a third party); (ii) enter into any contract, arrangement, understanding, plan\nor commitment in respect of any Derivative Securities (iii) seek or propose to influence or control the management or policies of the Company\nor to obtain representation on the Company’s Board of Directors, or solicit, or participate in the solicitation of, any proxies or consents with\nrespect to any securities of the Company, or make any public announcement with respect to any of the foregoing or request permission to do\nany of the foregoing; (iv) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any\nextraordinary transaction involving the Company or its securities or assets; or (v) enter into any discussions, negotiations, arrangements or\nunderstandings with any third party with respect to any of the foregoing, or otherwise form, join or in any way participate in a “group” (as\ndefined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing. You will promptly\nadvise the Company of any inquiry or proposal made to you with respect to any of the foregoing unless you are prohibited from doing so in\nconnection with any existing confidentiality obligations you may have.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 4\nFor the purposes for this letter agreement, “Derivative Securities” means any securities that are the subject of any derivative or other\ntransaction entered into by any person, which gives such person the economic equivalent of ownership of an amount of such securities due to\nthe fact that the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether\n(i) such derivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is\ncapable of being or required to be settled by the payment of cash or through the delivery of such securities.\n9. You agree that, for a period of three years from the date of this letter agreement, you will not, without the prior written consent of Company,\ndirectly or indirectly, solicit for employment or hire any person who is now an employee of the Company; provided, however, that the\nforegoing provision will not prevent you from employing any such person who contacts you on his or her own initiative without any direct or\nindirect solicitation by or encouragement from you. You also agree that until the earlier of (a) the consummation of a Transaction between the\nCompany and you or (b) three years from the date of this letter agreement, you will not, without the prior written consent of the Company,\n(i) initiate or maintain contact (except in the ordinary course of business) with any officer, director, employee, supplier, distributor, broker or\ncustomer of the Company for the purposes of obtaining information regarding the Company’s operations, assets, prospects or finances or\n(ii) solicit or contract with any of the Company’s potential or actual suppliers, customers, distributors or brokers to the extent identified in the\nInformation except such that have entered into contracts or transactions with you or have engaged in negotiations with you in respect of\npotential contracts or transactions prior to the time of your receipt of such Information.\n10. You agree that all (i) communications regarding the Transaction, (ii) requests for additional information, facility tours or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be first submitted or directed to Wells\nFargo and not to the Company. You acknowledge and agree that (a) the Company and the Company Representatives are free to conduct the\nprocess relating to a possible Transaction as the Company and the Company Representatives, in their sole discretion, determine (including,\nwithout limitation, conduct of the due diligence process, negotiating with any prospective purchaser and entering into a preliminary or\ndefinitive agreement to effect a Transaction without prior notice to you or any other person), (b) the Company reserves the right, in its sole\ndiscretion, to change the procedures relating to its consideration of the Transaction at any time without prior notice to you or any other person,\nto reject any and all proposals made by you or any of your Representatives with respect to the Transaction and to terminate discussions and\nnegotiations with you at any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has\nbeen executed, neither the Company nor any of the Company Representatives will have any liability to you with respect to the Transaction or\nany obligation of any kind whatsoever with respect to a Transaction, whether by virtue of this letter agreement, any other written or oral\nexpression with respect to the Transaction or otherwise.\n11. The provisions of paragraph 8 hereof shall be inoperative and of no force or effect if, from and after the date hereof: (a) any person or group\nshall have acquired or entered into a binding definitive agreement that has been approved by the Board of Directors of the Company (or any\nduly constituted committee thereof composed entirely of independent directors) to acquire more than 50% of the Company or assets of the\nCompany or its subsidiaries representing more than 50% of the consolidated earnings power of the Company and its subsidiaries, taken as a\nwhole, (b) any person commences a tender or exchange offer which, if consummated, would result in such person’s acquisition of beneficial\nownership of more than 50% of the outstanding voting securities of the Company, and in connection therewith, the Company files with the\nSEC a Schedule 14D- 9 with respect to such offer; or (c) the Company’s Board of Directors (or any duly constituted committee thereof\ncomposed entirely of independent directors) shall have determined in good faith, after consultation with outside legal counsel, that the failure\nto waive, limit, amend, or otherwise modify this agreement would be reasonably likely to be inconsistent with the fiduciary duties of the\nCompany’s directors under applicable law; provided, however, that with respect to clauses (a), (b) and (c) of this sentence, you shall not have\nsolicited,\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 5\ninitiated, encouraged, or taken any action to facilitate or assist or participate with any such other person or group in connection with any of the\ntransactions contemplated by clauses (a), (b) and (c) of this sentence.\n12. You acknowledge that remedies at law may be inadequate to protect the Company against any actual or threatened breach of this letter\nagreement by the Company or the Company’s Representatives, and, without prejudice to any other rights and remedies otherwise available to\nthe Company, you agree to the granting of specific performance and injunctive or other equitable relief in the Company’s favor without proof\nof actual damages and you further agree to waive, and to use all reasonable efforts to cause your Representatives to waive, any requirement for\nthe securing or posting of any bond in connection with any such remedy. In the event of litigation relating to this letter agreement, if a court of\ncompetent jurisdiction determines in a final, nonappealable order that this letter agreement has been breached by either party or its\nRepresentatives, then the breaching party will reimburse the other party for its costs and expenses (including, without limitation, reasonable\nlegal fees and expenses) incurred in connection with all such litigation.\n13. You agree that no failure or delay by the Company or any of the Company Representatives in exercising any right hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right\nhereunder.\n14. This letter agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between\nresidents of Delaware and executed in and to be performed entirely within Delaware, without giving effect to any choice or conflict of law\nprovision or rule (whether of Oregon, Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other\nthan those of Delaware. Any legal suit, action or proceeding arising out of, based upon or relating to this Agreement shall be instituted in the\nfederal courts of the United States of America or the courts of the State of Oregon in each case located in the City of Portland and/or the\nCounty of Multnomah, Oregon, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or\nproceeding. Service of process, summons, notice or other document by mail shall be effective service of process for any suit, action or other\nproceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit,\naction or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or\nproceeding brought in any such court has been brought in an inconvenient forum.\n15. This letter agreement constitutes a binding agreement between you and the Company. No person other than you and the Company is intended\nto be a beneficiary of this letter agreement, and no person other than you and the Company shall have any right to enforce any term of this\nletter agreement.\n16. This letter agreement contains the entire agreement between you and the Company concerning the confidentiality of the Information, and no\nprovision of this letter agreement may be waived, amended or modified, in whole or in part, nor any consent given, unless approved in writing\nby a duly authorized representative of the Company, which writing specifically refers to this letter agreement and the provision so amended or\nmodified or for which such waiver or consent is given. In the event that any provision of this letter agreement is deemed invalid, illegal or\nunenforceable, the validity, legality and enforceability of the remaining provisions of this letter agreement will not in any way be affected or\nimpaired thereby.\nWells Fargo Securities, LLC\nFebruary 28, 2011\nPage 6\nPlease confirm your agreement with the foregoing by signing and returning a duplicate copy of this letter agreement, at which time this letter\nagreement shall become a binding agreement between you and the Company.\nVery truly yours,\nWELLS FARGO SECURITIES LLC,\nfor and on behalf of LaCrosse Footwear, Inc.\nBy: /s/ Samuel E. Farnham\nSamuel E. Farnham\nManaging Director\nAccepted and agreed to as of February 28, 2011:\nABC-MART, INC.\nBy:\n/s/ Minoru Noguchi\nName: Minoru Noguchi\nTitle: President
+0587275477c6ad6d0d72419383e04b88.pdf	effective_date jurisdiction party term	EX-10 6 ex10ii26.htm EXHIBIT 10.(II)(26)\nExhibit 10.(ii)(26)\nExecutive Non-Disclosure and\nNon-Solicitation of Employees Agreement\nEXECUTIVE A\n______________________________________________________________________________\nIn order for Sears, Roebuck and Co., including its subsidiaries (collectively referred to as "Sears'' or the "Company"), to\nmaintain a competitive edge, Sears must protect its Confidential Information and the stability of its workforce.\nTherefore, as a condition of employment with Sears, I agree as follows:\nDEFINITIONS\n1. "Sears Confidential Information" means trade secrets and non-public information which Sears designates as being\nconfidential or which, under the circumstances surrounding disclosure, should be treated as confidential, including,\nwithout limitation, any information received in confidence or developed by Sears, its long and short term goals, vendor\nand supply agreements, databases, methods, programs, techniques, business information, financial information,\nmarketing and business plans, proprietary software, personnel information and files, client information, pricing, and\nother information relating to the business of Sears that is not known generally to the public or in the industry and is of\nvalue to Sears.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION\n2. I will not, during the term of my employment with Sears or thereafter, except as Sears may otherwise consent or direct\nin writing, reveal or disclose, sell, use, lecture upon or publish any Sears Confidential Information until such time as the\ninformation becomes publicly known through a source other than me.\n3. I understand that if I possess any proprietary information of another person or company as a result of prior\nemployment or otherwise, Sears expects and requires that I will honor any and all legal obligations that I have to that\nperson or company with respect to proprietary information, and I will refrain from any unauthorized use or disclosure of\nsuch information.\nRETURN OF SEARS PROPERTY\n4. All documents and other tangible property which relate to the business of Sears are the exclusive property of Sears,\neven if I authored or created them. I agree to return all such documents and tangible property to Sears upon termination\nof employment or at such earlier time as Sears may request me to do so.\nCONFLICT OF INTEREST\n5. During my employment, neither I nor members of my immediate family will have financial investments or other\ninterests or relationships with the Company's customers, suppliers or competitors which might impair my independence\nof judgment on behalf of the Company. I also agree not to engage in any competitive activity against the Company and\nwill avoid any outside activity that could adversely affect the independence and objectivity of my judgment, interfere\nwith the timely and effective performance of my duties and responsibilities to the Company, discredit the Company or\notherwise conflict with the Company's best interests.\nNON-SOLICITATION OF EMPLOYEES\n6. During my employment with Sears and for one (1) year thereafter, I shall not, directly or indirectly, solicit or\nencourage any person to leave her/his employment with Sears or assist in any way with the hiring of any Sears employee\nby any other business.\nIRREPARABLE HARM\n7. Irreparable harm would result from any breach by me of the provisions of this Agreement, and monetary damages\nalone would not provide adequate relief for any such breach. Accordingly, if I breach or threaten to breach this\nAgreement, injunctive relief in favor of Sears is proper, without the necessity of Sears posting a bond. Moreover, any\naward of injunctive relief shall not preclude Sears from seeking or recovering any lawful compensatory damages which\nmay have resulted from a breach of this Agreement, including a forfeiture of any future payments and a return of any\npayments already received by me.\nSEVERABILITY\n8. If any provision of this Agreement is held invalid by a court, the remaining provisions will nonetheless be enforced\naccording to their terms. Further, if any provision is held to be overbroad, a court may modify that provision to the extent\nnecessary to make the provision enforceable according to applicable law and enforce the provision as modified.\nGOVERNING LAW\n9. This Agreement shall be construed, interpreted and enforced in accordance with the internal laws of the State of\nIllinois. I agree that the state and federal courts located in the State of Illinois shall have exclusive jurisdiction in any\naction, suit or proceeding based on or arising out of this Agreement, and I submit to the personal jurisdiction of such\ncourts, consent to the service of process in connection with any action, suit or proceeding against me, and waive any\nobjections to jurisdiction, venue or service of process.\nBURDEN AND BENEFIT\n10. Sears may assign its rights under this Agreement to any successor in interest, whether by merger, consolidation, sale\nof assets, or otherwise. This Agreement shall be binding whether it is between Sears and me or between any successor or\nassign of Sears and me.\nNO EFFECT ON TERM OF EMPLOYMENT\n11. Nothing in this Agreement prevents or limits my right to terminate my employment at any time for any reason, and\nnothing in this Agreement prevents or limits the Company from terminating my employment at any time for any reason.\nI understand and agree that there exist no promises or guarantees of permanent employment or employment for any\nspecified term by the Company.\nENTIRE AGREEMENT\n12. I understand that this Agreement contains the entire agreement and understanding between Sears and me with respect\nto the provisions contained in this Agreement, and that no representations, promises, agreements, or understandings,\nwritten or oral, related thereto which are not contained in this Agreement will be given any force or effect. No change or\nmodification of this Agreement will be valid or binding unless it is in writing and signed by the party against whom the\nchange or modification is sought to be enforced. I further understand that even if Sears waives or fails to enforce any\nprovision of this Agreement in one instance, that will not constitute a waiver of any other provisions of this Agreement\nat this time, or a waiver of that provision at any other time.\nEXECUTIVE A\nSEARS, ROEBUCK AND CO.\n___________ ______________________\nSignature of Executive\n_________________________________\n___________ ______________________\nDate\nBy:______________________________\n___________ _____________________\nAddress - Street\n_____________ ____________________\nTitle\n___________ ______________________\nAddress - City, State, Zip Code\n_____________ ____________________\nDate\nEXECUTIVE SEVERANCE/NON-COMPETE AGREEMENT\nIn this Executive Severance/Non-Compete Agreement dated as of ________ __, 2001 (the "Agreement"), Sears, Roebuck and Co., including its\nsubsidiaries (collectively referred to as "Sears"), and EXECUTIVE A ("Executive"), intending to be legally bound and for good and valuable\nconsideration, agree as follows:\n1. Severance Pay.\n(a) Should Executive be involuntarily terminated from Sears for any reason other than Cause (as defined below in Section 2(b)), death, total and\npermanent disability, or voluntary retirement, and other than a Change in Control Termination (as defined below in Section 2(b)), Sears agrees to pay\nseverance, subject to the provisions of Sections 8(e) and 12 herein, to Executive in an amount equal to: (i) an annual bonus, based on actual results\nfor the year in which active employment ends, pro rata through the date active employment ends, plus (ii) two (2) years of salary continuation,\nwhich will include annual base salary plus annual bonus at target as determined for the year in which active employment ends. Any such annual\nbonus amounts shall be paid at the same time as the annual bonus for that year is paid to Sears executives generally. The "annual bonus" consists of\npayments made under the Annual Incentive Compensation Plan or any successor annual incentive program. A lump sum payment will be made for\nany vacation benefits that accrued prior to the end of active employment. No vacation will accrue after the date active employment ends. After the\nfirst year of salary continuation, salary continuation payments and annual bonus payments will be subject to mitigation by the amount of any\ncompensation and benefits to which Executive is entitled because of any employment, including self-employment. All salary continuation payments,\nbenefits and annual bonus payments will terminate and forever lapse if Executive is employed by a "Sears Competitor" as defined in Section 8(b)\nherein.\n(b) During the salary continuation period, Executive will be placed on a leave of absence status and be entitled to all benefits (other than as specified\nabove) for which Executive was eligible to participate prior to the end of active employment, with the exception of Long-Term Disability, Flexible\nSpending Accounts and financial planning. Executive and eligible dependents shall be entitled to continue to participate in medical and dental plans\nto the same extent and on the same cost-sharing basis as if Executive's employment with Sears had continued during such period. However, in the\nevent Executive becomes employed by another employer and is covered by such employer's health benefits plan or program, the medical and dental\nbenefits provided by Sears hereunder shall be secondary to such employer's health benefits plan or program in accordance with the terms of Sears\nhealth benefit plans.\n(c) Any stock options, stock appreciation rights, or restricted stock, except as otherwise provided for herein, granted to Executive prior to the date\nactive employment ends, will continue to vest during the salary continuation period. Executive shall have the right to exercise any outstanding and\nfully vested stock option, stock appreciation right, or other exercisable equity-based award in accordance with its respective grant letter. Any\nrestricted stock grant that has not yet vested by the end of the salary continuation period will be governed by the terms of its respective grant letter.\n(d) Any payment earned under the 1999-2001 cycle of the Long Term Incentive Performance Plan will be calculated on a pro rata basis as of the\ndate active employment ends, not inclusive of the salary continuation period. Payment will be made to Executive at the same time that other Sears\nexecutives receive any such payout under the 1999-2001 cycle of the Long Term Incentive Performance Plan.\n(e) The Long Term Performance Incentive Program grant for the 2002-2004 period, and any other subsequent multi-year performance based grant or\naward, will be treated at termination of active employment in accordance with the provisions of its respective program document or grant letter.\n(f) At the beginning of the salary continuation period, Executive will be immediately eligible for outplacement services at Sears expense. Sears and\nExecutive will mutually agree on which outplacement firm, among current vendors used by Sears, will provide these services. Such services will be\nprovided for up to one (1) year from the beginning of the salary continuation period or until employment is obtained, whichever occurs first.\n2. Change in Control.\n(a) Sears shall pay to Executive, and Executive shall be entitled to receive, the Change in Control Severance Pay described in Section 3, if\nExecutive's employment is terminated under the circumstances described below (a "Change in Control Termination"), provided, however, that\nnotwithstanding the foregoing, a termination by reason of death, disability or voluntary retirement, by Sears for Cause, or by the Executive without\nGood Reason, shall not be deemed to be a Change in Control Termination.\n(b) For purposes of this Agreement, the following terms shall have the definitions as set forth below:\n(i) "Change in Control Termination" means the termination of Executive's employment with Sears and all of its subsidiaries which is:\n1. on the day of, or within 24 months after, the occurrence of a Change in Control, as such term is defined in Appendix\nA;\n2. prior to a Change in Control but at the request of any third-party participating in or causing the Change in Control;\n3. by Sears without Cause during a "Potential Change in Control Period" (as defined below), provided that a Change in\nControl occurs before the Potential Change in Control Period lapses; or\n4. by Executive for Good Reason during a Potential Change in Control Period, provided that a Change in Control occurs\nbefore the Potential Change in Control Period lapses;\n(The parties agree and understand that a termination described in Section 1(a) during a Potential Change in Control Period may later\nbecome a Change in Control Termination and entitle the Executive to any additional benefits set forth in Section 2(a).)\nii. "Cause" shall mean (1) a material breach by Executive (other than a breach resulting from Executive's incapacity due to a\nmental or physical disability) of Executive's duties and responsibilities (which upon a Change in Control, shall not differ\n(except with the consent of Executive) in any material respect from Executive's duties and responsibilities during the ninety\n(90) day period immediately prior to the Change in Control or any Potential Change in Control Period during which a Change\nin Control occurs), which breach is demonstrably willful and deliberate on Executive's part, is committed in bad faith or\nwithout reasonable belief that such breach is in the best interests of Sears and is not remedied in a reasonable period of time\nafter receipt of written notice from Sears specifying such breach, (2) the commission by Executive of a felony involving\nmoral turpitude, or (3) dishonesty or willful misconduct in connection with Executive's employment; and\niii. "Good Reason" shall mean a significant reduction in Executive's responsibilities, title, annual base salary, annual incentive\ncompensation target or long-term incentive compensation opportunity from those in effect immediately prior to the Change in\nControl (or to the Potential Change in Control Period during which the Change in Control occurs), or Executive's mandatory\nrelocation to an office more than 50 miles from the primary location at which Executive is required to perform Executive's\nduties immediately prior to the Change in Control (or to the Potential Change in Control Period during which the Change in\nControl occurs), and which reduction or relocation is not remedied in a reasonable period of time (which shall not be greater\nthan thirty (30) days) after receipt of written notice from Executive specifying that "Good Reason" exists for purposes of this\nAgreement. "Good Reason" shall also include failure of a successor company to assume or fulfill the obligations under this\nAgreement, including the prompt payment of any amounts due to Executive hereunder.\niv. "Potential Change in Control Period" shall commence upon the occurrence of a "Potential Change in Control" (as defined\nbelow) and shall lapse immediately following the first to occur of (a) a Change in Control, or, (b) the one-year anniversary of\nthe occurrence of a Potential Change in Control.\nv. "Potential Change in Control" shall be deemed to have occurred if the event set forth in any one of the following subsections\nshall have occurred:\n1. Sears enters into an agreement the consummation of which would result in the occurrence of a Change in Control;\n2. Sears or any other party publicly announces an intention to take or consider taking actions which, if consummated, would constitute a\nChange in Control,\n3. there occurs an acquisition of 15% of Sears shares or other voting securities that meets the criteria (other than the 20% ownership threshold)\nset forth in Section (a) of the definition of "Change in Control" in Appendix A, or\n4. the Board adopts a resolution to the effect that, for purposes of this agreement, a Potential Change in Control has occurred.\n(c) Executive acknowledges that Sears shall have the right to propose modifications to the subparagraphs defining a "Change in Control" [Appendix\nA] and "Good Reason" [2(b)(iii)]. Executive shall have sixty (60) days to object in writing to the Senior Vice President of Sears Human Resources\nDepartment as to any proposed modification to these subparagraphs. The final decision as to any modification to which Executive makes a timely\nobjection will be at the sole discretion of Sears. Modifications shall be proposed only if the conditions set forth in the then current Appendix A are\nnot present and may not be proposed during a Potential Change in Control Period. The right to make modifications under this subparagraph shall\nexpire and lapse upon the occurrence of a Change in Control event as defined in the then current Appendix A.\n(d) This Agreement will automatically terminate and its provisions and covenants will become null and void twenty-four (24) months after the\noccurrence of a Change in Control.\n3. Change in Control Severance Pay.\n(a) In the event of a Change in Control Termination, Sears agrees to pay Executive's base salary and annual bonus at target, pro rata through the date\nof the Change in Control Termination, plus severance pay equal to two (2) multiplied by the sum of (i) Executive's annual base salary in effect at the\ndate of the Change in Control Termination or, if greater, immediately prior to the Change in Control or the Potential Change in Control Period during\nwhich the Change in Control occurs, plus (ii) Executive's annual bonus at target as determined for the year in which termination occurs. Such\namounts will be paid in an undiscounted lump sum within thirty (30) days of Change in Control Termination.\n(b) During the two (2) year period following the Change in Control Termination, Executive will be placed on a leave of absence status and be\nentitled to all benefits for which Executive is eligible to participate, as provided in section 1 (b) above.\n(c) Any stock options, stock appreciation rights, or restricted stock that were outstanding immediately prior to the Change in Control Termination\nshall, to the extent not then vested, fully vest as of the date of the Change in Control Termination. Executive shall have the right to exercise any\noutstanding stock option or stock appreciation right until the expiration date of such stock option or stock appreciation right as set forth in its\nrespective grant letter.\n(d) Any payment earned under the 1999-2001 cycle of the Long Term Incentive Performance Plan will be paid at the target of the entire performance\ncycle. Payment will be made to Executive at the same time that other Sears executives receive any such payout under the 1999-2001 cycle of the\nLong Term Incentive Performance Plan.\n(e) The Long Term Performance Incentive Program grant for the 2002-2004 period, and any other subsequent multi-year performance based grant or\naward, will be treated at the time of the Change in Control Termination in accordance with the provisions of its respective program document or\ngrant letter.\n(f) Executive shall be entitled to outplacement benefits as described in Section 1(f), above.\n4. Gross-Up Payment.\na. If, for any reason, the Total Payments (as defined below) will be subject to excise taxes under Section 4999 of the Internal Revenue\nCode of 1986, as amended (the "Code") or any successor or similar provision ("Excise Tax"), Sears shall pay to Executive an\nadditional amount (the "Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on\nthe Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall\nbe equal to the Total Payments. The Total Payment will be subject to Excise Tax if any or all of the Total Payment is deemed to be\n"excess parachute payments" within the meaning of Section 280G(b)(1) of the Code or any successor or similar provision.\nb. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the\nhighest marginal rate in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the\nhighest marginal rate in the state and locality of Executive's residence on the date on which the Gross-Up Payment is calculated, net\nof the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.\nc. "Total Payments" is defined as any or all of the amounts payable to Executive under this Agreement, after deduction of all applicable\nfederal, state and local income and employment taxes (except for Excise Taxes, as defined above) including such amounts that are in\nthe nature of compensation paid or payable by Sears or any of its subsidiaries in connection with a Change in Control.\n5. Non-Disparagement. Executive will not take any action detrimental to the interests of Sears or its affiliates, make derogatory statements, either\nwritten or oral to any third party, or otherwise publicly disparage Sears, its products, services, or present or former employees, officers or directors,\nand will not authorize others to make derogatory or disparaging statements on Executive's behalf.\n6. Intellectual Property Rights. Executive acknowledges that Executive's development, work or research on any and all inventions or expressions of\nideas, patentable or not, hereafter made or conceived solely or jointly within the scope of employment at Sears, provided such invention or\nexpression of an idea relates to the business of Sears, or relates to Sears actual or demonstrably anticipated research or development, or results from\nany work performed by Executive for or on behalf of Sears, are hereby assigned to Sears, including Executive's entire rights, title and interest.\nExecutive will promptly disclose such invention or expression of an idea to Executive's management and will, upon request, promptly execute a\nspecific written assignment of title to Sears. If Executive currently holds any inventions or expressions of an idea, regardless of whether they were\npublished or filed with the U.S . Patent and Trademark Office, or is under contract to not so assign, Executive will list them on the last page of this\nAgreement.\n7. Confidentiality. Executive agrees that the existence and terms of the Agreement, including the compensation paid to Executive, and discussions\nwith Sears on this Agreement, shall be considered confidential and shall not be disclosed or communicated in any manner except: (a) as required by\nlaw; or (b) to Executive's spouse or financial/legal advisors, all of whom shall agree to keep such information confidential.\n8. Protective Covenants. Executive acknowledges that this Agreement provides for additional consideration beyond what Sears is otherwise\nobligated to pay. In consideration of the opportunity for severance benefits and special payments specified above, and other good and valuable\nconsideration, Executive agrees to the following:\n(a) Non-Disclosure and Non-Solicitation. Executive acknowledges that Executive has previously or has simultaneously executed and\nwill continue to be bound by an Executive Non-Disclosure and Non-Solicitation of Employees Agreement, which agreement sets\nforth, among other things, the definition of Sears Confidential Information and is incorporated by reference herein.\n(b) Non-Competition. Executive acknowledges that as a result of Executive's position at Sears, Executive has learned or developed,\nor will learn or develop, Sears Confidential Information and that use or disclosure of such Confidential Information is likely to occur\nif Executive were to render advice or services to any Sears Competitor.\n(i) Therefore, for one (1) year from Executive's last day of active employment, whether or not Executive receives Severance Pay,\nExecutive will not, directly or indirectly, aid, assist, participate in, consult with, render services for, accept a position with, become\nemployed by, or otherwise enter into any relationship with (other than having a passive ownership interest in) any Sears Competitor.\nii. For purposes of this Agreement, "Sears Competitor" means\n(1) Those companies listed on Appendix B, each of which Executive acknowledges is a Sears Competitor, whether or\nnot it falls within the categories in (2), below, and further acknowledges that this is not an exclusive list of Sears\nCompetitors and is not intended to limit the generality of subsection 8(b)(ii)(2), below, and\n(2) Any party (A) engaged in any retail business (whether in a department store, specialty store, discount store, direct\nmarketing, or electronic commerce or other business format), that consists of selling furniture, appliances, electronics,\nhardware, auto parts and/or apparel products, or providing home improvement, product repair, home services, and/or\nauto repair services, with combined annual gross sales in excess of $500 million, (B) engaged in any credit card or\nother consumer financial services business, with managed assets in excess of $5 billion, (C) any vendor with\ncombined annual gross sales of services or merchandise to Sears in excess of $100 million, or (D) a party engaged in\nany other line of business, in which Sears has commenced business prior to the end of Executive's active employment,\nwith Sears having annual gross sales in that line of business in excess of $50 million.\n(iii) Executive acknowledges that Sears shall have the right to propose modifications to Appendix B periodically to\ninclude (1) emergent Competitors in Sears existing lines of business and (2) Competitors in lines of business that are\nnew for Sears. Executive shall have sixty (60) days to object in writing to the Senior Vice President of Sears Human\nResources Department to any proposed modifications to Appendix B. The final decision as to any modification to\nwhich Executive makes a timely objection will be at the sole discretion of Sears.\n(iv) Executive further acknowledges that Sears does business throughout the United States, Puerto Rico and Canada\nand that this non-compete provision applies in any state of the United States, Puerto Rico or province of Canada in\nwhich Sears does business.\n(c) Executive will provide Sears with such information as Sears may from time to time request to determine Executive's compliance with this\nAgreement. Executive authorizes Sears to contact Executive's future employers and other entities with which Executive has any business relationship\nto determine Executive's compliance with this Agreement or to communicate the contents of this Agreement to such employers and entities.\nExecutive releases Sears, its agents and employees, from all liability for any damage arising from any such contacts or communications.\n(d) Executive agrees that the restrictions set forth above are necessary to prevent the use and disclosure of Sears Confidential Information and to\notherwise protect the legitimate business interests of Sears. Executive further agrees and acknowledges that the provisions of this Agreement are\nreasonable.\n(e) Upon the termination of Executive's employment by either party, Executive will execute a binding General Release and Waiver of claims in a\nform to be provided by Sears, which is incorporated by reference herein. This General Release and Waiver will be in a form similar to the attached\nsample. If the General Release and Waiver is not signed or is signed but subsequently revoked, Executive will not receive Severance Pay (if any) or\nany other benefits due under this Agreement.\n(f) Executive acknowledges that irreparable harm would result from any breach or threatened breach by Executive of the provisions of this\nAgreement, and monetary damages alone would not provide adequate relief for any such breach. Accordingly, if Executive breaches this Agreement,\ninjunctive relief in favor of Sears is proper without the necessity of Sears posting bond. Moreover, any award of injunctive relief shall not preclude\nSears from seeking or recovering any lawful compensatory damages which may have resulted from a breach of this Agreement, including a\nforfeiture of any payments not yet made and a return of any payments already received by Executive.\n(g) Any waiver, or failure to seek enforcement or remedy for any breach or suspected breach, of any provision of this Agreement by Sears in any\ninstance shall not be deemed a waiver of such provision in the future.\n(h) Executive may request (i) a waiver of the non-competition provisions of this Agreement or (ii) that the time frame in Section 8(b), above,\ncommence during Executive's continued employment with Sears, by written request to the Chief Executive Officer of Sears or the equivalent. Such a\nrequest will be given reasonable consideration and may be granted, in whole or in part, or denied at Sears' absolute discretion.\n9. In no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of any compensation or benefits\npayable to Executive hereunder; and except as specifically provided in paragraphs (a) and (b) of Section 1 and Sections 8(e) and 12, such\ncompensation and benefits shall not be reduced whether or not Executive obtains other employment.\n10. Executive agrees, without receiving additional compensation, to fully and completely cooperate with Sears, both during and after the period of\nactive employment, in all investigations, potential litigation or litigation in which Sears is involved or may become involved. Sears will reimburse\nExecutive for reasonable travel and out-of-pocket expenses.\n11. Executive agrees that both during and after the period of active employment with Sears, Executive will not voluntarily act as a witness,\nconsultant or expert for any person or party in any action against or involving Sears or any corporate relative of Sears, unless subject to judicial\nenforcement to appear as a fact witness only.\n12. In the event of a breach by Executive of any of the provisions of this Agreement, including but not limited to the non-disparagement provision\n(Section 5 herein), and the non-competition provisions (Section 8 herein) of this Agreement, Sears obligation to make salary continuation or any\nother payments under this Agreement will immediately cease.\n13. If any provision(s) of this Agreement shall be found invalid, illegal, or unenforceable, in whole or in part, then such provision(s) shall be deemed\nto be modified or restricted so as to effectuate as nearly as possible in a valid and enforceable way the provisions hereof, or shall be deemed excised\nfrom this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent permitted by law, as if\nsuch provision(s) had been originally incorporated herein as so modified or restricted or as if such provision(s) had not been originally incorporated\nherein, as the case may be.\n14. This Agreement will be governed under the internal laws of the state of Illinois. Executive agrees that the state and federal courts located in the\nstate of Illinois shall have exclusive jurisdiction in any action, suit or proceeding based on or arising out of this Agreement, and Executive hereby:\n(a) submits to the personal jurisdiction of such courts; (b) consents to the service of process in connection with any action, suit, or proceeding against\nExecutive; and (c) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction, venue\nor service of process.\n15. Executive agrees to waive any right to a jury trial on any claim contending that this Agreement or the General Release and Waiver is illegal or\nunenforceable in whole or in part, and Executive agrees to try any claims brought in a court or tribunal without use of a jury or advisory jury.\nFurther, should any claim arising out of Executive's employment or termination of employment be found by a court or tribunal of competent\njurisdiction to not be released by the General Release and Waiver, Executive agrees to try such claim to the court or tribunal without use of a jury or\nadvisory jury.\n16. This Agreement does not constitute a contract of employment, and Executive acknowledges that Executive's employment with Sears is\nterminable "at-will" by either party with or without cause and with or without notice.\n17. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Sears document, then the provisions of this\nAgreement will control. Executive shall not be eligible for any benefits under the Sears Transition Pay Plan or any successor severance plan or\nprogram. This Agreement will supersede any prior agreement between Executive and Sears with respect to the subject matter contained herein (with\nthe exception of the Executive Non-Disclosure and Non-Solicitation of Employees Agreement dated _______________, 200__) and may be\namended only by a writing signed by an authorized officer of Sears.\n18. All compensation paid or provided to Executive under this Agreement shall be subject to any applicable federal, state or local income and\nemployment tax withholding requirements.\n19. Sears may assign its rights under this Agreement to any successor in interest, whether by merger, consolidation, sale of assets, or otherwise. This\nAgreement shall be binding whether it is between Sears and Executive or between any successor or assignee of Sears and Executive.\n20. This Agreement may be executed in one or more counterparts, which together shall constitute a valid and binding agreement.\nIN WITNESS WHEREOF, Executive and Sears, by its duly authorized representative, have executed this Agreement effective as of the date set forth\nbelow.\nSEARS, ROEBUCK AND CO.\n_ ___ ___ ___ ___ ___ ____ ___ ___ __\nEXECUTIVE A\nBY:____________________________\n_ ___ ___ ___ ___ ___ ____ ___ ___ __\nDate\n___ ___ ___ ___ ____ ___ ___ ___ ___\nDate\nA "change in control" or "Change in Control" shall mean:\n(a) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as\namended (the "Exchange Act") (a "Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of\n20% or more of either (i) the then outstanding common shares of the Company (the "Outstanding Company Common Shares") or (ii) the combined\nvoting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the "Outstanding\nCompany Voting Securities"); provided, however, that the following acquisitions shall not constitute a Change in Control: (i) any acquisition directly\nfrom the Company (excluding an acquisition by virtue of the exercise of a conversion privilege); (ii) any acquisition by the Company or any of its\nsubsidiaries; (iii) any acquisition by any employee benefit plan (or any related trust) sponsored or maintained by the Company of any of its\nsubsidiaries; or (iv) any acquisition by any corporation pursuant to a reorganization, merger or consolidation, if, following such reorganization,\nmerger or consolidation, the conditions described in clauses (i), (ii) and (iii) of (c) below are satisfied; or\n(b) Individuals who, as of the date hereof, constitute the Board of Directors of the Company (the "Board") (as of the date hereof, the "Incumbent\nBoard") cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to\nthe date hereof whose election, or nomination for election by the Company's shareholders, was approved by a vote of at least a majority of the\ndirectors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding,\nfor this purpose, any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such\nterms are used under Section 14 of the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person\nother than the Board; or\n(c) Consummation of a reorganization, merger or consolidation unless, following such reorganization, merger or consolidation, (i) more than 60% of,\nrespectively, the then outstanding common shares of the corporation resulting from such reorganization, merger or consolidation and the combined\nvoting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then beneficially\nowned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the\nOutstanding Company Common Shares and Outstanding Company Voting Securities immediately prior to such reorganization, merger or\nconsolidation in substantially the same proportions as their ownership, immediately prior to such reorganization, merger or consolidation, of the\nOutstanding Company Common Shares and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding the Company,\nany of its subsidiaries, any employee benefit plan (or related trust) sponsored or maintained by the Company, any of its subsidiaries or such\ncorporation resulting from such reorganization, merger or consolidation and any Person beneficially owning, immediately prior to such\nreorganization, merger or consolidation, directly or indirectly, 20% or more of the Outstanding Company Common Shares or Outstanding Company\nVoting Securities, as the case may be) beneficially owns, directly or indirectly, 20% or more of, respectively, the then outstanding common shares of\nthe corporation resulting from such reorganization, merger or consolidation or the combined voting power of the then outstanding voting securities\nof such corporation entitled to vote generally in the election of directors and (iii) at least a majority of the members of the board of directors of the\ncorporation resulting from such reorganization, merger or consolidation were members of the Incumbent Board at the time of the execution of the\ninitial agreement providing for such reorganization, merger or consolidation; or\n(d) Approval by the shareholders of the Company of a complete liquidation or dissolution of the Company; or\n(e) Consummation of the sale or other disposition of all or substantially all of the assets of the Company, other than to a corporation, with respect to\nwhich following such sale or other disposition, (i) more then 60% of, respectively, the then outstanding common shares of such corporation and the\ncombined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then\nbeneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of\nthe Outstanding Company Common Shares and Outstanding Company Voting Securities immediately prior to such sale or other disposition in\nsubstantially the same proportion as their ownership, immediately prior to such sale or other disposition, of the Outstanding Company Common\nShares and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding the Company, any of its subsidiaries, and any\nemployee benefit plan (or related trust) sponsored or maintained by the Company, any of its subsidiaries or such corporation and any Person\nbeneficially owning, immediately prior to such sale or other disposition, directly or indirectly, 20% or more of the Outstanding Company Common\nShares or Outstanding Company Voting Securities, as the case may be) beneficially owns, directly or indirectly, 20% or more of, respectively, the\nthen outstanding common shares of such corporation and the combined voting power of the then outstanding voting securities of such corporation\nentitled to vote generally in the election of directors and (iii) at least a majority of the members of the board of directors of such corporation were\nmembers of the Incumbent Board at the time of the execution of the initial agreement or action of the Board providing for such sale or other\ndisposition of assets of the Company.\nFor purposes of the foregoing definition of "Change in Control", a "subsidiary" of the Company shall mean any corporation in which the Company,\ndirectly or indirectly, holds a majority of the voting power of such corporation's outstanding shares of capital stock.\nNOTICE: YOU MAY CONSIDER THIS GENERAL RELEASE AND WAIVER FOR UP TO TWENTY-ONE (21) DAYS. IF YOU\nDECIDE TO SIGN IT, YOU MAY REVOKE THE GENERAL RELEASE AND WAIVER WITHIN SEVEN (7) DAYS AFTER SIGNING.\nANY REVOCATION WITHIN THIS PERIOD MUST BE IMMEDIATELY SUBMITTED IN WRITING TO GENERAL COUNSEL,\nSEARS, ROEBUCK AND CO., 3333 BEVERLY ROAD, HOFFMAN ESTATES, IL 60179. YOU MAY WISH TO CONSULT WITH AN\nATTORNEY BEFORE SIGNING THIS DOCUMENT.\nGENERAL RELEASE AND WAIVER\nIn consideration for the benefits that I will receive under the attached Executive Severance/Non-Compete Agreement, I and any person acting by,\nthrough, or under me hereby release, waive, and forever discharge Sears, Roebuck and Co., its current and former agents, subsidiaries, affiliates,\nemployees, officers, shareholders, successors, and assigns ("Sears") from any and all liability, actions, charges, causes of action, demands, damages,\nor claims for relief or remuneration of any kind whatsoever, whether known or unknown at this time, arising out of, or connected with, my\nemployment with Sears and the termination of my employment, including, but not limited to, all matters in law, in equity, in contract (oral or written,\nexpress or implied), or in tort, or pursuant to statute, including any claim for age or other types of discrimination under the Age Discrimination in\nEmployment Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, or other federal, state, or local law or ordinance, to\nthe fullest extent permitted under the law, including the Employee Retirement Income Security Act. This General Release and Waiver does not apply\nto any claims or rights that may arise after the date that I signed this General Release and Waiver. I understand that Sears is not admitting to any\nviolation of my rights or any duty or obligation owed to me.\nExcluded from this General Release and Waiver are my claims which cannot be waived by law, including but not limited to (1) the right to file a\ncharge with or participate in an investigation conducted by certain government agencies, (2) any rights or claims to benefits accrued under benefit\nplans maintained by Sears pursuant to ERISA, and (3) any claims that cannot be waived under the Fair Labor Standards Act or Family and Medical\nLeave Act. I do, however, waive my right to any monetary recovery should any agency pursue any claims on my behalf. I represent and warrant that\nI have not filed any complaint, charge, or lawsuit against Sears with any governmental agency and/or any court.\nIn addition, I agree never to sue Sears in any forum for any claim covered by this General Release and Waiver except that I may bring a claim under\nthe ADEA to challenge this General Release and Waiver. If I violate this General Release and Waiver by suing Sears, other than under ADEA, I shall\nbe liable to Sears for its reasonable attorney's fees and other litigation costs and expenses incurred in defending against such a suit.\nI have read this General Release and Waiver and I understand its legal and binding effect. I am acting voluntarily and of my own free will in\nexecuting this General Release and Waiver.\nI have had the opportunity to seek, and I was advised in writing to seek, legal counsel prior to signing this General Release and Waiver.\nI was given at least twenty-one (21) days to consider signing this General Release and Waiver. Any immaterial modification of this General Release\nand Waiver does not restart the twenty-one (21) day consideration period.\nI understand that, if I sign the General Release and Waiver, I can change my mind and revoke it within seven (7) days after signing it by notifying the\nGeneral Counsel of Sears in writing. I understand that this General Release and Waiver will not be effective until after this seven (7) day revocation\nperiod has expired.\nDate: SAMPLE ONLY - DO NOT SIGN\nSigned by: SAMPLE ONLY - DO NOT SIGN\nWitness by:____________________________	EX-10 6 ex10ii26.htm EXHIBIT 10.(IT)(26)\nExhibit 10.(ii)(26)\nExecutive Non-Disclosure and\nNon-Solicitation of Employees Agreement\nEXECUTIVE A\n \nIn order for Sears, Roebuck and Co., including its subsidiaries (collectively referred to as "Sears" or the "Company"), to\nmaintain a competitive edge, Sears must protect its Confidential Information and the stability of its workforce.\nTherefore, as a condition of employment with Sears, I agree as follows:\nDEFINITIONS\n1. "Sears Confidential Information" means trade secrets and non-public information which Sears designates as being\nconfidential or which, under the circumstances surrounding disclosure, should be treated as confidential, including,\nwithout limitation, any information received in confidence or developed by Sears, its long and short term goals, vendor\nand supply agreements, databases, methods, programs, techniques, business information, financial information,\nmarketing and business plans, proprietary software, personnel information and files, client information, pricing, and\nother information relating to the business of Sears that is not known generally to the public or in the industry and is of\nvalue to Sears.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION\n2. I will not, during the term of my employment with Sears or thereafter, except as Sears may otherwise consent or direct\nin writing, reveal or disclose, sell, use, lecture upon or publish any Sears Confidential Information until such time as the\ninformation becomes publicly known through a source other than me.\n3. I understand that if I possess any proprietary information of another person or company as a result of prior\nemployment or otherwise, Sears expects and requires that I will honor any and all legal obligations that I have to that\nperson or company with respect to proprietary information, and I will refrain from any unauthorized use or disclosure of\nsuch information.\nRETURN OF SEARS PROPERTY\n4. All documents and other tangible property which relate to the business of Sears are the exclusive property of Sears,\neven if I authored or created them. I agree to return all such documents and tangible property to Sears upon termination\nof employment or at such earlier time as Sears may request me to do so.\nCONFLICT OF INTEREST\n5. During my employment, neither I nor members of my immediate family will have financial investments or other\ninterests or relationships with the Company's customers, suppliers or competitors which might impair my independence\nof judgment on behalf of the Company. I also agree not to engage in any competitive activity against the Company and\nwill avoid any outside activity that could adversely affect the independence and objectivity of my judgment, interfere\nwith the timely and effective performance of my duties and responsibilities to the Company, discredit the Company or\notherwise conflict with the Company's best interests.\nNON-SOLICITATION OF EMPLOYEES\n6. During my employment with Sears and for one (1) year thereafter, I shall not, directly or indirectly, solicit or\nencourage any person to leave her/his employment with Sears or assist in any way with the hiring of any Sears employee\nby any other business.\nIRREPARABLE HARM\n7. Irreparable harm would result from any breach by me of the provisions of this Agreement, and monetary damages\nalone would not provide adequate relief for any such breach. Accordingly, if I breach or threaten to breach this\nAgreement, injunctive relief in favor of Sears is proper, without the necessity of Sears posting a bond. Moreover, any\naward of injunctive relief shall not preclude Sears from seeking or recovering any lawful compensatory damages which\nmay have resulted from a breach of this Agreement, including a forfeiture of any future payments and a return of any\npayments already received by me.\nSEVERABILITY\n8. If any provision of this Agreement is held invalid by a court, the remaining provisions will nonetheless be enforced\naccording to their terms. Further, if any provision is held to be overbroad, a court may modify that provision to the extent\nnecessary to make the provision enforceable according to applicable law and enforce the provision as modified.\nGOVERNING LAW\n9. This Agreement shall be construed, interpreted and enforced in accordance with the internal laws of the State of\nIllinois. I agree that the state and federal courts located in the State of Illinois shall have exclusive jurisdiction in any\naction, suit or proceeding based on or arising out of this Agreement, and I submit to the personal jurisdiction of such\ncourts, consent to the service of process in connection with any action, suit or proceeding against me, and waive any\nobjections to jurisdiction, venue or service of process.\nBURDEN AND BENEFIT\n10. Sears may assign its rights under this Agreement to any successor in interest, whether by merger, consolidation, sale\nof assets, or otherwise. This Agreement shall be binding whether it is between Sears and me or between any successor or\nassign of Sears and me.\nNO EFFECT ON TERM OF EMPLOYMENT\n11. Nothing in this Agreement prevents or limits my right to terminate my employment at any time for any reason, and\nnothing in this Agreement prevents or limits the Company from terminating my employment at any time for any reason.\nI understand and agree that there exist no promises or guarantees of permanent employment or employment for any\nspecified term by the Company.\nENTIRE AGREEMENT\n12. I understand that this Agreement contains the entire agreement and understanding between Sears and me with respect\nto the provisions contained in this Agreement, and that no representations, promises, agreements, or understandings,\nwritten or oral, related thereto which are not contained in this Agreement will be given any force or effect. No change or\nmodification of this Agreement will be valid or binding unless it is in writing and signed by the party against whom the\nchange or modification is sought to be enforced. I further understand that even if Sears waives or fails to enforce any\nprovision of this Agreement in one instance, that will not constitute a waiver of any other provisions of this Agreement\nat this time, or a waiver of that provision at any other time.\nEXECUTIVE A SEARS, ROEBUCK AND CO.\n \n \nSignature of Executive\n \n \n \n \n \n \nBy:\nDate\nAddress - Street Title\nAddress - City, State, Zip Code Date\nEXECUTIVE SEVERANCE/NON-COMPETE AGREEMENT\nIn this Executive Severance/Non-Compete Agreement dated as of __, 2001 (the "Agreement"), Sears, Roebuck and Co., including its\nsubsidiaries (collectively referred to as "Sears"), and EXECUTIVE A ("Executive"), intending to be legally bound and for good and valuable\nconsideration, agree as follows:\n1. Severance Pay.\n(a) Should Executive be involuntarily terminated from Sears for any reason other than Cause (as defined below in Section 2(b)), death, total and\npermanent disability, or voluntary retirement, and other than a Change in Control Termination (as defined below in Section 2(b)), Sears agrees to pay\nseverance, subject to the provisions of Sections 8(e) and 12 herein, to Executive in an amount equal to: (i) an annual bonus, based on actual results\nfor the year in which active employment ends, pro rata through the date active employment ends, plus (ii) two (2) years of salary continuation,\nwhich will include annual base salary plus annual bonus at target as determined for the year in which active employment ends. Any such annual\nbonus amounts shall be paid at the same time as the annual bonus for that year is paid to Sears executives generally. The "annual bonus" consists of\npayments made under the Annual Incentive Compensation Plan or any successor annual incentive program. A lump sum payment will be made for\nany vacation benefits that accrued prior to the end of active employment. No vacation will accrue after the date active employment ends. After the\nfirst year of salary continuation, salary continuation payments and annual bonus payments will be subject to mitigation by the amount of any\ncompensation and benefits to which Executive is entitled because of any employment, including self-employment. All salary continuation payments,\nbenefits and annual bonus payments will terminate and forever lapse if Executive is employed by a "Sears Competitor" as defined in Section 8(b)\nherein.\n(b) During the salary continuation period, Executive will be placed on a leave of absence status and be entitled to all benefits (other than as specified\nabove) for which Executive was eligible to participate prior to the end of active employment, with the exception of Long-Term Disability, Flexible\nSpending Accounts and financial planning. Executive and eligible dependents shall be entitled to continue to participate in medical and dental plans\nto the same extent and on the same cost-sharing basis as if Executive's employment with Sears had continued during such period. However, in the\nevent Executive becomes employed by another employer and is covered by such employer's health benefits plan or program, the medical and dental\nbenefits provided by Sears hereunder shall be secondary to such employer's health benefits plan or program in accordance with the terms of Sears\nhealth benefit plans.\n(c) Any stock options, stock appreciation rights, or restricted stock, except as otherwise provided for herein, granted to Executive prior to the date\nactive employment ends, will continue to vest during the salary continuation period. Executive shall have the right to exercise any outstanding and\nfully vested stock option, stock appreciation right, or other exercisable equity-based award in accordance with its respective grant letter. Any\nrestricted stock grant that has not yet vested by the end of the salary continuation period will be governed by the terms of its respective grant letter.\n(d) Any payment earned under the 1999-2001 cycle of the Long Term Incentive Performance Plan will be calculated on a pro rata basis as of the\ndate active employment ends, not inclusive of the salary continuation period. Payment will be made to Executive at the same time that other Sears\nexecutives receive any such payout under the 1999-2001 cycle of the Long Term Incentive Performance Plan.\n(e) The Long Term Performance Incentive Program grant for the 2002-2004 period, and any other subsequent multi-year performance based grant or\naward, will be treated at termination of active employment in accordance with the provisions of its respective program document or grant letter.\n(f) At the beginning of the salary continuation period, Executive will be immediately eligible for outplacement services at Sears expense. Sears and\nExecutive will mutually agree on which outplacement firm, among current vendors used by Sears, will provide these services. Such services will be\nprovided for up to one (1) year from the beginning of the salary continuation period or until employment is obtained, whichever occurs first.\n2. Change in Control.\n(a) Sears shall pay to Executive, and Executive shall be entitled to receive, the Change in Control Severance Pay described in Section 3, if\nExecutive's employment is terminated under the circumstances described below (a "Change in Control Termination"), provided, however, that\nnotwithstanding the foregoing, a termination by reason of death, disability or voluntary retirement, by Sears for Cause, or by the Executive without\nGood Reason, shall not be deemed to be a Change in Control Termination.\n(b) For purposes of this Agreement, the following terms shall have the definitions as set forth below:\n(i) "Change in Control Termination" means the termination of Executive's employment with Sears and all of its subsidiaries which is:\n1. on the day of, or within 24 months after, the occurrence of a Change in Control, as such term is defined in Appendix\nA;\n2. prior to a Change in Control but at the request of any third-party participating in or causing the Change in Control;\n3. by Sears without Cause during a "Potential Change in Control Period" (as defined below), provided that a Change in\nControl occurs before the Potential Change in Control Period lapses; or\n4. by Executive for Good Reason during a Potential Change in Control Period, provided that a Change in Control occurs\nbefore the Potential Change in Control Period lapses;\n(The parties agree and understand that a termination described in Section 1(a) during a Potential Change in Control Period may later\nbecome a Change in Control Termination and entitle the Executive to any additional benefits set forth in Section 2(a).)\nii. "Cause" shall mean (1) a material breach by Executive (other than a breach resulting from Executive's incapacity due to a\nmental or physical disability) of Executive's duties and responsibilities (which upon a Change in Control, shall not differ\n(except with the consent of Executive) in any material respect from Executive's duties and responsibilities during the ninety\n(90) day period immediately prior to the Change in Control or any Potential Change in Control Period during which a Change\nin Control occurs), which breach is demonstrably willful and deliberate on Executive's part, is committed in bad faith or\nwithout reasonable belief that such breach is in the best interests of Sears and is not remedied in a reasonable period of time\nafter receipt of written notice from Sears specifying such breach, (2) the commission by Executive of a felony involving\nmoral turpitude, or (3) dishonesty or willful misconduct in connection with Executive's employment; and\niii. "Good Reason" shall mean a significant reduction in Executive's responsibilities, title, annual base salary, annual incentive\ncompensation target or long-term incentive compensation opportunity from those in effect immediately prior to the Change in\nControl (or to the Potential Change in Control Period during which the Change in Control occurs), or Executive's mandatory\nrelocation to an office more than 50 miles from the primary location at which Executive is required to perform Executive's\nduties immediately prior to the Change in Control (or to the Potential Change in Control Period during which the Change in\nControl occurs), and which reduction or relocation is not remedied in a reasonable period of time (which shall not be greater\nthan thirty (30) days) after receipt of written notice from Executive specifying that "Good Reason" exists for purposes of this\nAgreement. "Good Reason" shall also include failure of a successor company to assume or fulfill the obligations under this\nAgreement, including the prompt payment of any amounts due to Executive hereunder.\niv. "Potential Change in Control Period" shall commence upon the occurrence of a "Potential Change in Control" (as defined\nbelow) and shall lapse immediately following the first to occur of (a) a Change in Control, or, (b) the one-year anniversary of\nthe occurrence of a Potential Change in Control.\nv. "Potential Change in Control" shall be deemed to have occurred if the event set forth in any one of the following subsections\nshall have occurred:\n1. Sears enters into an agreement the consummation of which would result in the occurrence of a Change in Control;\n2. Sears or any other party publicly announces an intention to take or consider taking actions which, if consummated, would constitute a\nChange in Control,\n3. there occurs an acquisition of 15% of Sears shares or other voting securities that meets the criteria (other than the 20% ownership threshold)\nset forth in Section (a) of the definition of "Change in Control" in Appendix A, or\n4. the Board adopts a resolution to the effect that, for purposes of this agreement, a Potential Change in Control has occurred.\n(c) Executive acknowledges that Sears shall have the right to propose modifications to the subparagraphs defining a "Change in Control" [Appendix\nA] and "Good Reason" [2(b)(iii)]. Executive shall have sixty (60) days to object in writing to the Senior Vice President of Sears Human Resources\nDepartment as to any proposed modification to these subparagraphs. The final decision as to any modification to which Executive makes a timely\nobjection will be at the sole discretion of Sears. Modifications shall be proposed only if the conditions set forth in the then current Appendix A are\nnot present and may not be proposed during a Potential Change in Control Period. The right to make modifications under this subparagraph shall\nexpire and lapse upon the occurrence of a Change in Control event as defined in the then current Appendix A.\n(d) This Agreement will automatically terminate and its provisions and covenants will become null and void twenty-four (24) months after the\noccurrence of a Change in Control.\n3. Change in Control Severance Pay.\n(a) In the event of a Change in Control Termination, Sears agrees to pay Executive's base salary and annual bonus at target, pro rata through the date\nof the Change in Control Termination, plus severance pay equal to two (2) multiplied by the sum of (i) Executive's annual base salary in effect at the\ndate of the Change in Control Termination or, if greater, immediately prior to the Change in Control or the Potential Change in Control Period during\nwhich the Change in Control occurs, plus (ii) Executive's annual bonus at target as determined for the year in which termination occurs. Such\namounts will be paid in an undiscounted lump sum within thirty (30) days of Change in Control Termination.\n(b) During the two (2) year period following the Change in Control Termination, Executive will be placed on a leave of absence status and be\nentitled to all benefits for which Executive is eligible to participate, as provided in section 1 (b) above.\n(c) Any stock options, stock appreciation rights, or restricted stock that were outstanding immediately prior to the Change in Control Termination\nshall, to the extent not then vested, fully vest as of the date of the Change in Control Termination. Executive shall have the right to exercise any\noutstanding stock option or stock appreciation right until the expiration date of such stock option or stock appreciation right as set forth in its\nrespective grant letter.\n(d) Any payment earned under the 1999-2001 cycle of the Long Term Incentive Performance Plan will be paid at the target of the entire performance\ncycle. Payment will be made to Executive at the same time that other Sears executives receive any such payout under the 1999-2001 cycle of the\nLong Term Incentive Performance Plan.\n(e) The Long Term Performance Incentive Program grant for the 2002-2004 period, and any other subsequent multi-year performance based grant or\naward, will be treated at the time of the Change in Control Termination in accordance with the provisions of its respective program document or\ngrant letter.\n(f) Executive shall be entitled to outplacement benefits as described in Section 1(f), above.\n4. Gross-Up Payment.\na. If, for any reason, the Total Payments (as defined below) will be subject to excise taxes under Section 4999 of the Internal Revenue\nCode of 1986, as amended (the "Code") or any successor or similar provision ("Excise Tax"), Sears shall pay to Executive an\nadditional amount (the "Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on\nthe Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall\nbe equal to the Total Payments. The Total Payment will be subject to Excise Tax if any or all of the Total Payment is deemed to be\n"excess parachute payments" within the meaning of Section 280G(b)(1) of the Code or any successor or similar provision.\nb. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the\nhighest marginal rate in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the\nhighest marginal rate in the state and locality of Executive's residence on the date on which the Gross-Up Payment is calculated, net\nof the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.\nc. "Total Payments" is defined as any or all of the amounts payable to Executive under this Agreement, after deduction of all applicable\nfederal, state and local income and employment taxes (except for Excise Taxes, as defined above) including such amounts that are in\nthe nature of compensation paid or payable by Sears or any of its subsidiaries in connection with a Change in Control.\n5. Non-Disparagement. Executive will not take any action detrimental to the interests of Sears or its affiliates, make derogatory statements, either\nwritten or oral to any third party, or otherwise publicly disparage Sears, its products, services, or present or former employees, officers or directors,\nand will not authorize others to make derogatory or disparaging statements on Executive's behalf.\n6. Intellectual Property Rights. Executive acknowledges that Executive's development, work or research on any and all inventions or expressions of\nideas, patentable or not, hereafter made or conceived solely or jointly within the scope of employment at Sears, provided such invention or\nexpression of an idea relates to the business of Sears, or relates to Sears actual or demonstrably anticipated research or development, or results from\nany work performed by Executive for or on behalf of Sears, are hereby assigned to Sears, including Executive's entire rights, title and interest.\nExecutive will promptly disclose such invention or expression of an idea to Executive's management and will, upon request, promptly execute a\nspecific written assignment of title to Sears. If Executive currently holds any inventions or expressions of an idea, regardless of whether they were\npublished or filed with the U.S. Patent and Trademark Office, or is under contract to not so assign, Executive will list them on the last page of this\nAgreement.\n7. Confidentiality. Executive agrees that the existence and terms of the Agreement, including the compensation paid to Executive, and discussions\nwith Sears on this Agreement, shall be considered confidential and shall not be disclosed or communicated in any manner except: (a) as required by\nlaw; or (b) to Executive's spouse or financial/legal advisors, all of whom shall agree to keep such information confidential.\n8. Protective Covenants. Executive acknowledges that this Agreement provides for additional consideration beyond what Sears is otherwise\nobligated to pay. In consideration of the opportunity for severance benefits and special payments specified above, and other good and valuable\nconsideration, Executive agrees to the following:\n(a) Non-Disclosure and Non-Solicitation. Executive acknowledges that Executive has previously or has simultaneously executed and\nwill continue to be bound by an Executive Non-Disclosure and Non-Solicitation of Employees Agreement, which agreement sets\nforth, among other things, the definition of Sears Confidential Information and is incorporated by reference herein.\n(b) Non-Competition. Executive acknowledges that as a result of Executive's position at Sears, Executive has learned or developed,\nor will learn or develop, Sears Confidential Information and that use or disclosure of such Confidential Information is likely to occur\nif Executive were to render advice or services to any Sears Competitor.\n \n(i) Therefore, for one (1) year from Executive's last day of active employment, whether or not Executive receives Severance Pay,\nExecutive will not, directly or indirectly, aid, assist, participate in, consult with, render services for, accept a position with, become\nemployed by, or otherwise enter into any relationship with (other than having a passive ownership interest in) any Sears Competitor.\nii. For purposes of this Agreement, "Sears Competitor" means\n(1) Those companies listed on Appendix B, each of which Executive acknowledges is a Sears Competitor, whether or\nnot it falls within the categories in (2), below, and further acknowledges that this is not an exclusive list of Sears\nCompetitors and is not intended to limit the generality of subsection 8(b)(ii)(2), below, and\n(2) Any party (A) engaged in any retail business (whether in a department store, specialty store, discount store, direct\nmarketing, or electronic commerce or other business format), that consists of selling furniture, appliances, electronics,\nhardware, auto parts and/or apparel products, or providing home improvement, product repair, home services, and/or\nauto repair services, with combined annual gross sales in excess of $500 million, (B) engaged in any credit card or\nother consumer financial services business, with managed assets in excess of $5 billion, (C) any vendor with\ncombined annual gross sales of services or merchandise to Sears in excess of $100 million, or (D) a party engaged in\nany other line of business, in which Sears has commenced business prior to the end of Executive's active employment,\nwith Sears having annual gross sales in that line of business in excess of $50 million.\n(iii) Executive acknowledges that Sears shall have the right to propose modifications to Appendix B periodically to\ninclude (1) emergent Competitors in Sears existing lines of business and (2) Competitors in lines of business that are\nnew for Sears. Executive shall have sixty (60) days to object in writing to the Senior Vice President of Sears Human\nResources Department to any proposed modifications to Appendix B. The final decision as to any modification to\nwhich Executive makes a timely objection will be at the sole discretion of Sears.\n(iv) Executive further acknowledges that Sears does business throughout the United States, Puerto Rico and Canada\nand that this non-compete provision applies in any state of the United States, Puerto Rico or province of Canada in\nwhich Sears does business.\n(c) Executive will provide Sears with such information as Sears may from time to time request to determine Executive's compliance with this\nAgreement. Executive authorizes Sears to contact Executive's future employers and other entities with which Executive has any business relationship\nto determine Executive's compliance with this Agreement or to communicate the contents of this Agreement to such employers and entities.\nExecutive releases Sears, its agents and employees, from all liability for any damage arising from any such contacts or communications.\n(d) Executive agrees that the restrictions set forth above are necessary to prevent the use and disclosure of Sears Confidential Information and to\notherwise protect the legitimate business interests of Sears. Executive further agrees and acknowledges that the provisions of this Agreement are\nreasonable.\n(e) Upon the termination of Executive's employment by either party, Executive will execute a binding General Release and Waiver of claims in a\nform to be provided by Sears, which is incorporated by reference herein. This General Release and Waiver will be in a form similar to the attached\nsample. If the General Release and Waiver is not signed or is signed but subsequently revoked, Executive will not receive Severance Pay (if any) or\nany other benefits due under this Agreement.\n(f) Executive acknowledges that irreparable harm would result from any breach or threatened breach by Executive of the provisions of this\nAgreement, and monetary damages alone would not provide adequate relief for any such breach. Accordingly, if Executive breaches this Agreement,\ninjunctive relief in favor of Sears is proper without the necessity of Sears posting bond. Moreover, any award of injunctive relief shall not preclude\nSears from seeking or recovering any lawful compensatory damages which may have resulted from a breach of this Agreement, including a\nforfeiture of any payments not yet made and a return of any payments already received by Executive.\n(g) Any waiver, or failure to seek enforcement or remedy for any breach or suspected breach, of any provision of this Agreement by Sears in any\ninstance shall not be deemed a waiver of such provision in the future.\n(h) Executive may request (i) a waiver of the non-competition provisions of this Agreement or (ii) that the time frame in Section 8(b), above,\ncommence during Executive's continued employment with Sears, by written request to the Chief Executive Officer of Sears or the equivalent. Such a\nrequest will be given reasonable consideration and may be granted, in whole or in part, or denied at Sears' absolute discretion.\n9. In no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of any compensation or benefits\npayable to Executive hereunder; and except as specifically provided in paragraphs (a) and (b) of Section 1 and Sections 8(e) and 12, such\ncompensation and benefits shall not be reduced whether or not Executive obtains other employment.\n10. Executive agrees, without receiving additional compensation, to fully and completely cooperate with Sears, both during and after the period of\nactive employment, in all investigations, potential litigation or litigation in which Sears is involved or may become involved. Sears will reimburse\nExecutive for reasonable travel and out-of-pocket expenses.\n11. Executive agrees that both during and after the period of active employment with Sears, Executive will not voluntarily act as a witness,\nconsultant or expert for any person or party in any action against or involving Sears or any corporate relative of Sears, unless subject to judicial\nenforcement to appear as a fact witness only.\n12. In the event of a breach by Executive of any of the provisions of this Agreement, including but not limited to the non-disparagement provision\n(Section 5 herein), and the non-competition provisions (Section 8 herein) of this Agreement, Sears obligation to make salary continuation or any\nother payments under this Agreement will immediately cease.\n13. If any provision(s) of this Agreement shall be found invalid, illegal, or unenforceable, in whole or in part, then such provision(s) shall be deemed\nto be modified or restricted so as to effectuate as nearly as possible in a valid and enforceable way the provisions hereof, or shall be deemed excised\nfrom this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent permitted by law, as if\nsuch provision(s) had been originally incorporated herein as so modified or restricted or as if such provision(s) had not been originally incorporated\nherein, as the case may be.\n14. This Agreement will be governed under the internal laws of the state of Illinois. Executive agrees that the state and federal courts located in the\nstate of Illinois shall have exclusive jurisdiction in any action, suit or proceeding based on or arising out of this Agreement, and Executive hereby:\n(a) submits to the personal jurisdiction of such courts; (b) consents to the service of process in connection with any action, suit, or proceeding against\nExecutive; and (c) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction, venue\nor service of process.\n15. Executive agrees to waive any right to a jury trial on any claim contending that this Agreement or the General Release and Waiver is illegal or\nunenforceable in whole or in part, and Executive agrees to try any claims brought in a court or tribunal without use of a jury or advisory jury.\nFurther, should any claim arising out of Executive's employment or termination of employment be found by a court or tribunal of competent\njurisdiction to not be released by the General Release and Waiver, Executive agrees to try such claim to the court or tribunal without use of a jury or\nadvisory jury.\n16. This Agreement does not constitute a contract of employment, and Executive acknowledges that Executive's employment with Sears is\nterminable "at-will" by either party with or without cause and with or without notice.\n17. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Sears document, then the provisions of this\nAgreement will control. Executive shall not be eligible for any benefits under the Sears Transition Pay Plan or any successor severance plan or\nprogram. This Agreement will supersede any prior agreement between Executive and Sears with respect to the subject matter contained herein (with\nthe exception of the Executive Non-Disclosure and Non-Solicitation of Employees Agreement dated , 200__) and may be\namended only by a writing signed by an authorized officer of Sears.\n18. All compensation paid or provided to Executive under this Agreement shall be subject to any applicable federal, state or local income and\nemployment tax withholding requirements.\n19. Sears may assign its rights under this Agreement to any successor in interest, whether by merger, consolidation, sale of assets, or otherwise. This\nAgreement shall be binding whether it is between Sears and Executive or between any successor or assignee of Sears and Executive.\n20. This Agreement may be executed in one or more counterparts, which together shall constitute a valid and binding agreement.\nIN WITNESS WHEREOF, Executive and Sears, by its duly authorized representative, have executed this Agreement effective as of the date set forth\nbelow.\nSEARS, ROEBUCK AND CO.\nBY:\n \n \nEXECUTIVE A\n \n \nDate Date\nA "change in control" or "Change in Control" shall mean:\n(a) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as\namended (the "Exchange Act") (a "Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of\n20% or more of either (i) the then outstanding common shares of the Company (the "Outstanding Company Common Shares") or (ii) the combined\nvoting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the "Outstanding\nCompany Voting Securities"); provided, however, that the following acquisitions shall not constitute a Change in Control: (i) any acquisition directly\nfrom the Company (excluding an acquisition by virtue of the exercise of a conversion privilege); (ii) any acquisition by the Company or any of its\nsubsidiaries; (iii) any acquisition by any employee benefit plan (or any related trust) sponsored or maintained by the Company of any of its\nsubsidiaries; or (iv) any acquisition by any corporation pursuant to a reorganization, merger or consolidation, if, following such reorganization,\nmerger or consolidation, the conditions described in clauses (i), (ii) and (iii) of (c) below are satisfied; or\n(b) Individuals who, as of the date hereof, constitute the Board of Directors of the Company (the "Board") (as of the date hereof, the "Incumbent\nBoard") cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to\nthe date hereof whose election, or nomination for election by the Company's shareholders, was approved by a vote of at least a majority of the\ndirectors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding,\nfor this purpose, any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such\nterms are used under Section 14 of the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person\nother than the Board; or\n(c) Consummation of a reorganization, merger or consolidation unless, following such reorganization, merger or consolidation, (i) more than 60% of,\nrespectively, the then outstanding common shares of the corporation resulting from such reorganization, merger or consolidation and the combined\nvoting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then beneficially\nowned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the\nOutstanding Company Common Shares and Outstanding Company Voting Securities immediately prior to such reorganization, merger or\nconsolidation in substantially the same proportions as their ownership, immediately prior to such reorganization, merger or consolidation, of the\nOutstanding Company Common Shares and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding the Company,\nany of its subsidiaries, any employee benefit plan (or related trust) sponsored or maintained by the Company, any of its subsidiaries or such\ncorporation resulting from such reorganization, merger or consolidation and any Person beneficially owning, immediately prior to such\nreorganization, merger or consolidation, directly or indirectly, 20% or more of the Outstanding Company Common Shares or Outstanding Company\nVoting Securities, as the case may be) beneficially owns, directly or indirectly, 20% or more of, respectively, the then outstanding common shares of\nthe corporation resulting from such reorganization, merger or consolidation or the combined voting power of the then outstanding voting securities\nof such corporation entitled to vote generally in the election of directors and (iii) at least a majority of the members of the board of directors of the\ncorporation resulting from such reorganization, merger or consolidation were members of the Incumbent Board at the time of the execution of the\ninitial agreement providing for such reorganization, merger or consolidation; or\n(d) Approval by the shareholders of the Company of a complete liquidation or dissolution of the Company; or\n(e) Consummation of the sale or other disposition of all or substantially all of the assets of the Company, other than to a corporation, with respect to\nwhich following such sale or other disposition, (i) more then 60% of, respectively, the then outstanding common shares of such corporation and the\ncombined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then\nbeneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of\nthe Outstanding Company Common Shares and Outstanding Company Voting Securities immediately prior to such sale or other disposition in\nsubstantially the same proportion as their ownership, immediately prior to such sale or other disposition, of the Outstanding Company Common\nShares and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding the Company, any of its subsidiaries, and any\nemployee benefit plan (or related trust) sponsored or maintained by the Company, any of its subsidiaries or such corporation and any Person\nbeneficially owning, immediately prior to such sale or other disposition, directly or indirectly, 20% or more of the Outstanding Company Common\nShares or Outstanding Company Voting Securities, as the case may be) beneficially owns, directly or indirectly, 20% or more of, respectively, the\nthen outstanding common shares of such corporation and the combined voting power of the then outstanding voting securities of such corporation\nentitled to vote generally in the election of directors and (iii) at least a majority of the members of the board of directors of such corporation were\nmembers of the Incumbent Board at the time of the execution of the initial agreement or action of the Board providing for such sale or other\ndisposition of assets of the Company.\nFor purposes of the foregoing definition of "Change in Control", a "subsidiary" of the Company shall mean any corporation in which the Company,\ndirectly or indirectly, holds a majority of the voting power of such corporation's outstanding shares of capital stock.\nNOTICE: YOU MAY CONSIDER THIS GENERAL RELEASE AND WAIVER FOR UP TO TWENTY-ONE (21) DAYS. IF YOU\nDECIDE TO SIGN IT, YOU MAY REVOKE THE GENERAL RELEASE AND WAIVER WITHIN SEVEN (7) DAYS AFTER SIGNING.\nANY REVOCATION WITHIN THIS PERIOD MUST BE IMMEDIATELY SUBMITTED IN WRITING TO GENERAL COUNSEL,\nSEARS, ROEBUCK AND CO,, 3333 BEVERLY ROAD, HOFFMAN ESTATES, IL 60179. YOU MAY WISH TO CONSULT WITH AN\nATTORNEY BEFORE SIGNING THIS DOCUMENT.\nGENERAL RELEASE AND WAIVER\nIn consideration for the benefits that I will receive under the attached Executive Severance/Non-Compete Agreement, I and any person acting by,\nthrough, or under me hereby release, waive, and forever discharge Sears, Roebuck and Co., its current and former agents, subsidiaries, affiliates,\nemployees, officers, shareholders, successors, and assigns ("Sears") from any and all liability, actions, charges, causes of action, demands, damages,\nor claims for relief or remuneration of any kind whatsoever, whether known or unknown at this time, arising out of, or connected with, my\nemployment with Sears and the termination of my employment, including, but not limited to, all matters in law, in equity, in contract (oral or written,\nexpress or implied), or in tort, or pursuant to statute, including any claim for age or other types of discrimination under the Age Discrimination in\nEmployment Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, or other federal, state, or local law or ordinance, to\nthe fullest extent permitted under the law, including the Employee Retirement Income Security Act. This General Release and Waiver does not apply\nto any claims or rights that may arise after the date that I signed this General Release and Waiver. I understand that Sears is not admitting to any\nviolation of my rights or any duty or obligation owed to me.\nExcluded from this General Release and Waiver are my claims which cannot be waived by law, including but not limited to (1) the right to file a\ncharge with or participate in an investigation conducted by certain government agencies, (2) any rights or claims to benefits accrued under benefit\nplans maintained by Sears pursuant to ERISA, and (3) any claims that cannot be waived under the Fair Labor Standards Act or Family and Medical\nLeave Act. I do, however, waive my right to any monetary recovery should any agency pursue any claims on my behalf. I represent and warrant that\nI have not filed any complaint, charge, or lawsuit against Sears with any governmental agency and/or any court.\nIn addition, I agree never to sue Sears in any forum for any claim covered by this General Release and Waiver except that I may bring a claim under\nthe ADEA to challenge this General Release and Waiver. If I violate this General Release and Waiver by suing Sears, other than under ADEA, I shall\nbe liable to Sears for its reasonable attorney's fees and other litigation costs and expenses incurred in defending against such a suit.\nI have read this General Release and Waiver and I understand its legal and binding effect. I am acting voluntarily and of my own free will in\nexecuting this General Release and Waiver.\nI have had the opportunity to seek, and I was advised in writing to seek, legal counsel prior to signing this General Release and Waiver.\nI was given at least twenty-one (21) days to consider signing this General Release and Waiver. Any immaterial modification of this General Release\nand Waiver does not restart the twenty-one (21) day consideration period.\nI understand that, if I sign the General Release and Waiver, I can change my mind and revoke it within seven (7) days after signing it by notifying the\nGeneral Counsel of Sears in writing. I understand that this General Release and Waiver will not be effective until after this seven (7) day revocation\nperiod has expired.\nDate: SAMPLE ONLY - DO NOT SIGN Signed by: SAMPLE ONLY - DO NOT SIGN\nWitness by:\n	EX-10 6 ex10ii26.htm EXHIBIT 10.(II)(26)\nExhibit 10.(ii)(26)\nExecutive Non-Disclosure and\nNon-Solicitation of Employees Agreement\nEXECUTIVE A\nIn order for Sears, Roebuck and Co., including its subsidiaries (collectively referred to as "Sears" or the "Company"),\nto\nmaintain a competitive edge, Sears must protect its Confidential Information and the stability of its workforce.\nTherefore, as a condition of employment with Sears, I agree as follows:\nDEFINITIONS\n1. "Sears Confidential Information" means trade secrets and non-public information which Sears designates as being\nconfidential or which, under the circumstances surrounding disclosure, should be treated as confidential, including,\nwithout limitation, any information received in confidence or developed by Sears, its long and short term goals, vendor\nand supply agreements, databases, methods, programs, techniques, business information, financial information,\nmarketing and business plans, proprietary software, personnel information and files, client information, pricing, and\nother information relating to the business of Sears that is not known generally to the public or in the industry and is of\nvalue to Sears.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION\n2. I will not, during the term of my employment with Sears or thereafter, except as Sears may otherwise consent or direct\nin writing, reveal or disclose, sell, use, lecture upon or publish any Sears Confidential Information until\nsuch\ntime\nas\nthe\ninformation becomes publicly known through a source other than me.\n3. I understand that if I possess any proprietary information of another person or company as a result of prior\nemployment or otherwise, Sears expects and requires that I will honor any and all legal obligations that I have to that\nperson or company with respect to proprietary information, and I will refrain from any unauthorized use or disclosure of\nsuch information.\nRETURN OF SEARS PROPERTY\n4. All documents and other tangible property which relate to the business of Sears are the exclusive property of Sears,\neven if I authored or created them. I agree to return all such documents and tangible property to Sears upon termination\nof employment or at such earlier time as Sears may request me to do so.\nCONFLICT OF INTEREST\n5. During my employment, neither I nor members of my immediate family will have financial investments or other\ninterests or relationships with the Company's customers, suppliers or competitors which might impair my independence\nof judgment on behalf of the Company. I also agree not to engage in any competitive activity against the Company and\nwill avoid any outside activity that could adversely affect the independence and objectivity of my judgment, interfere\nwith the timely and effective performance of my duties and responsibilities to the Company, discredit the Company or\notherwise conflict with the Company's best interests.\nNON-SOLICITATION OF EMPLOYEES\n6. During my employment with Sears and for one (1) year thereafter, I shall not, directly or indirectly, solicit or\nencourage any person to leave her/his employment with Sears or assist in any way with the hiring of any Sears employee\nby any other business.\nIRREPARABLE HARM\n7. Irreparable harm would result from any breach by me of the provisions of this Agreement, and monetary damages\nalone would not provide adequate relief for any such breach. Accordingly, if I breach or threaten\nto\nbreach\nthis\nAgreement, injunctive relief in favor of Sears is proper, without the necessity of Sears posting a bond. Moreover, any\naward of injunctive relief shall not preclude Sears from seeking or recovering any lawful compensatory damages which\nmay have resulted from a breach of this Agreement, including a forfeiture of any future payments and a return of any\npayments already received by me.\nSEVERABILITY\n8. If any provision of this Agreement is held invalid by a court, the remaining provisions will nonetheless be enforced\naccording to their terms. Further, if any provision is held to be overbroad, a court may modify that provision to the extent\nnecessary to make the provision enforceable according to applicable law and enforce the provision as modified.\nGOVERNING LAW\n9. This Agreement shall be construed, interpreted and enforced in accordance with the internal laws of the State of\nIllinois. I agree that the state and federal courts located in the State of Illinois shall have exclusive jurisdiction in any\naction, suit or proceeding based on or arising out of this Agreement, and I submit to the personal jurisdiction of such\ncourts, consent to the service of process in connection with any action, suit or proceeding against me, and waive any\nobjections to jurisdiction, venue or service of process.\nBURDEN AND BENEFIT\n10. Sears may assign its rights under this Agreement to any successor in interest, whether by merger, consolidation, sale\nof assets, or otherwise. This Agreement shall be binding whether it is between Sears and me or between any successor or\nassign of Sears and me.\nNO EFFECT ON TERM OF EMPLOYMENT\n11. Nothing in this Agreement prevents or limits my right to terminate my employment at any time for any reason, and\nnothing in this Agreement prevents or limits the Company from terminating my employment at any time for any reason.\nI understand and agree that there exist no promises or guarantees of permanent employment or employment for any\nspecified term by the Company.\nENTIRE AGREEMENT\n12. I understand that this Agreement contains the entire agreement and understanding between Sears and me with respect\nto the provisions contained in this Agreement, and that no representations, promises, agreements, or understandings,\nwritten or oral, related thereto which are not contained in this Agreement will be given any force or effect. No change or\nmodification of this Agreement will be valid or binding unless it is in writing and signed by the party against whom the\nchange or modification is sought to be enforced. I further understand that even if Sears waives or fails to enforce any\nprovision of this Agreement in one instance, that will not constitute a waiver of any other provisions of this Agreement\nat this time, or a waiver of that provision at any other time.\nEXECUTIVE A\nSEARS, ROEBUCK AND CO.\nSignature of Executive\nBy:\nDate\nAddress Street\nTitle\nAddress City, State, Zip Code\nDate\nEXECUTIVE SEVERANCE/NON-COMPETE AGREEMENT\nIn this Executive Severance/Non-Compete Agreement dated as of 2001 (the "Agreement"), Sears, Roebuck and Co., including\nits\nsubsidiaries (collectively referred to as "Sears"), and EXECUTIVE A ("Executive"), intending to be legally bound and for good and valuable\nconsideration, agree as follows:\n1. Severance Pay..\n(a) Should Executive be involuntarily terminated from Sears for any reason other than Cause (as defined below in Section 2(b)), death, total and\npermanent disability, or voluntary retirement, and other than a Change in Control Termination (as defined below in Section 2(b)), Sears agrees to pay\nseverance, subject to the provisions of Sections 8(e) and 12 herein, to Executive in an amount equal to: (i) an annual bonus, based on actual results\nfor the year in which active employment ends, pro rata through the date active employment ends, plus (ii) two (2) years of salary continuation,\nwhich will include annual base salary plus annual bonus at target as determined for the year in which active employment ends. Any such annual\nbonus amounts shall be paid at the same time as the annual bonus for that year is paid to Sears executives generally. The "annual bonus" consists of\npayments made under the Annual Incentive Compensation Plan or any successor annual incentive program. A lump sum payment will be made for\nany vacation benefits that accrued prior to the end of active employment. No vacation will accrue after the date active employment ends. After\nthe\nfirst\nyear\nof\nsalary\ncontinuation,\nsalary\ncontinuation\npayments\nand\nannual\nbonus\npayments\nwill\nbe\nsubject\nto\nmitigation\nby\nthe\namount\nof\nany\ncompensation and benefits to which Executive is entitled because of any employment, including self-employment. All salary continuation payments,\nbenefits and annual bonus payments will terminate and forever lapse if Executive is employed by a "Sears Competitor" as defined in Section 8(b)\nherein.\n(b) During the salary continuation period, Executive will be placed on a leave of absence status and be entitled to all benefits (other than as specified\nabove)\nfor\nwhich\nExecutive\nwas\neligible\nto\nparticipate\nprior\nto\nthe\nend\nof\nactive\nemployment,\nwith\nthe\nexception\nof\nLong-Term\nDisability,\nFlexible\nSpending Accounts and financial planning. Executive and eligible dependents shall be entitled to continue to participate in medical and dental plans\nto the same extent and on the same cost-sharing basis as if Executive's employment with Sears had continued during such period. However, in the\nevent\nExecutive becomes employed by another employer and is covered by such employer's health benefits plan or program, the medical and dental\nbenefits provided by Sears hereunder shall be secondary to such employer's health benefits plan or program in accordance with the terms of Sears\nhealth benefit plans.\n(c) Any stock options, stock appreciation rights, or restricted stock, except as otherwise provided for herein, granted to Executive prior to the date\nactive employment ends, will continue to vest during the salary continuation period. Executive shall have the right to exercise any outstanding and\nfully vested stock option, stock appreciation right, or other exercisable equity-based award in accordance with its respective grant letter. Any\nrestricted stock grant that has not yet vested by the end of the salary continuation period will be governed by the terms of its respective grant letter.\n(d) Any payment earned under the 1999-2001 cycle of the Long Term Incentive Performance Plan will be calculated on a pro rata basis as of the\ndate active employment ends, not inclusive of the salary continuation period. Payment will be made to Executive at the same time that other Sears\nexecutives receive any such payout under the 1999-2001 cycle of the Long Term Incentive Performance Plan.\n(e) The Long Term Performance Incentive Program grant for the 2002-2004 period, and any other subsequent multi-year performance based grant or\naward, will be treated at termination of active employment in accordance with the provisions of its respective program document or grant letter.\n(f) At the beginning of the salary continuation period, Executive will be immediately eligible for outplacement services at Sears expense. Sears and\nExecutive will mutually agree on which outplacement firm, among current vendors used by Sears, will provide these services. Such services will be\nprovided for up to one (1) year from the beginning of the salary continuation period or until employment is obtained, whichever occurs first.\n2. Change in Control.\n(a) Sears shall pay to Executive, and Executive shall be entitled to receive, the Change in Control Severance Pay described in Section 3, if\nExecutive's employment is terminated under the circumstances described below (a "Change in Control Termination"), provided, however, that\nnotwithstanding the foregoing, a termination by reason of death, disability or voluntary retirement, by Sears for Cause, or by the Executive without\nGood Reason, shall not be deemed to be a Change in Control Termination.\n(b) For purposes of this Agreement, the following terms shall have the definitions as set forth below:\n(i) "Change in Control Termination" means the termination of Executive's employment with Sears and all of its subsidiaries which is:\n1. on the day of, or within 24 months after, the occurrence of a Change in Control, as such term is defined in Appendix\nA;\n2. prior to a Change in Control but at the request of any third-party participating in or causing the Change in Control;\n3. by Sears without Cause during a "Potential Change in Control Period" (as defined below), provided that a Change\nin\nControl occurs before the Potential Change in Control Period lapses; or\n4. by Executive for Good Reason during a Potential Change in Control Period, provided that a Change in Control occurs\nbefore the Potential Change in Control Period lapses;\n(The parties agree and understand that a termination described in Section 1(a) during a Potential Change in Control Period may later\nbecome a Change in Control Termination and entitle the Executive to any additional benefits set forth in Section 2(a).)\nii. "Cause" shall mean (1) a material breach by Executive (other than a breach resulting from Executive's incapacity due to\na\nmental or physical disability) of Executive's duties and responsibilities (which upon a Change in Control, shall not differ\n(except with the consent of Executive) in any material respect from Executive's duties and responsibilities during the ninety\n(90) day period immediately prior to the Change in Control or any Potential Change in Control Period during which a Change\nin Control occurs), which breach is demonstrably willful and deliberate on Executive's part, is committed in bad faith or\nwithout reasonable belief that such breach is in the best interests of Sears and is not remedied in a reasonable period of time\nafter receipt of written notice from Sears specifying such breach, (2) the commission by Executive of a felony involving\nmoral turpitude, or (3) dishonesty or willful misconduct in connection with Executive's employment; and\niii. "Good Reason" shall mean a significant reduction in Executive's responsibilities, title, annual base salary, annual incentive\ncompensation target or long-term incentive compensation opportunity from those in effect immediately prior to the Change\nin\nControl (or to the Potential Change in Control Period during which the Change in Control occurs), or Executive's mandatory\nrelocation to an office more than 50 miles from the primary location at which Executive is required to perform Executive's\nduties immediately prior to the Change in Control (or to the Potential Change in Control Period during which the Change in\nControl occurs), and which reduction or relocation is not remedied in a reasonable period of time (which shall not be greater\nthan thirty (30) days) after receipt of written notice from Executive specifying that "Good Reason" exists for purposes of this\nAgreement. "Good Reason" shall also include failure of a successor company to assume or fulfill the obligations under this\nAgreement, including the prompt payment of any amounts due to Executive hereunder.\niv. "Potential Change in Control Period" shall commence upon the occurrence of a "Potential Change in Control" (as defined\nbelow) and shall lapse immediately following the first to occur of (a) a Change in Control, or, (b) the one-year anniversary of\nthe occurrence of a Potential Change in Control.\nV. "Potential Change in Control" shall be deemed to have occurred if the event set forth in any one of the following subsections\nshall have occurred:\n1. Sears enters into an agreement the consummation of which would result in the occurrence of a Change in Control;\n2. Sears or any other party publicly announces an intention to take or consider taking actions which, if consummated, would constitute a\nChange in Control,\n3. there occurs an acquisition of 15% of Sears shares or other voting securities that meets the criteria (other than the 20% ownership threshold)\nset forth in Section (a) of the definition of "Change in Control" in Appendix A, or\n4. the Board adopts a resolution to the effect that, for purposes of this agreement, a Potential Change in Control has occurred.\n(c) Executive acknowledges that Sears shall have the right to propose modifications to the subparagraphs defining a "Change in Control" [Appendix\nA] and "Good Reason" [2(b)(iii)]. Executive shall have sixty (60) days to object in writing to the Senior Vice President of Sears Human Resources\nDepartment as to any proposed modification to these subparagraphs. The final decision as to any modification to which Executive makes a timely\nobjection will be at the sole discretion of Sears. Modifications shall be proposed only if the conditions set forth in the then current Appendix A are\nnot present and may not be proposed during a Potential Change in Control Period. The right to make modifications under this subparagraph shall\nexpire and lapse upon the occurrence of a Change in Control event as defined in the then current Appendix A.\n(d) This Agreement will automatically terminate and its provisions and covenants will become null and void twenty-four (24) months after the\noccurrence of a Change in Control.\n3. Change in Control Severance Pay.\n(a) In the event of a Change in Control Termination, Sears agrees to pay Executive's base salary and annual bonus at target, pro rata through the date\nof the Change in Control Termination, plus severance pay equal to two (2) multiplied by the sum of (i) Executive's annual base salary in effect at the\ndate of the Change in Control Termination or, if greater, immediately prior to the Change in Control or the Potential Change in Control Period during\nwhich the Change in Control occurs, plus (ii) Executive's annual bonus at target as determined for the year in which termination occurs. Such\namounts will be paid in an undiscounted lump sum within thirty (30) days of Change in Control Termination.\n(b) During the two (2) year period following the Change in Control Termination, Executive will be placed on a leave of absence status and be\nentitled to all benefits for which Executive is eligible to participate, as provided in section 1 (b) above.\n(c) Any stock options, stock appreciation rights, or restricted stock that were outstanding immediately prior to the Change in Control Termination\nshall, to the extent not then vested, fully vest as of the date of the Change in Control Termination. Executive shall have the right to exercise any\noutstanding stock option or stock appreciation right until the expiration date of such stock option or stock appreciation right as set forth in its\nrespective grant letter.\n(d) Any payment earned under the 1999-2001 cycle of the Long Term Incentive Performance Plan wil be paid at the target of the entire performance\ncycle. Payment will be made to Executive at the same time that other Sears executives receive any such payout under the 1999-2001 cycle of the\nLong Term Incentive Performance Plan.\n(e) The Long Term Performance Incentive Program grant for the 2002-2004 period, and any other subsequent multi-year performance based\ngrant\nor\naward, will be treated at the time of the Change in Control Termination in accordance with the provisions of its respective program document or\ngrant letter.\n(f) Executive shall be entitled to outplacement benefits as described in Section 1(f), above.\n4. Gross-Up Payment.\na. If, for any reason, the Total Payments (as defined below) will be subject to excise taxes under Section 4999 of the Internal Revenue\nCode of 1986, as amended (the "Code") or any successor or similar provision ("Excise Tax"), Sears shall pay to Executive an\nadditional\namount\n(the\n"Gross-Up\nPayment")\nsuch\nthat\nthe\nnet\namount\nretained\nby\nExecutive,\nafter\ndeduction\nof\nany\nExcise\nTax\non\nthe Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall\nbe equal to the Total Payments. The Total Payment will be subject to Excise Tax if any or all of the Total Payment is deemed to be\n"excess parachute payments" within the meaning of Section 280G(b)(1) of the Code or any successor or similar provision.\nb.\nFor purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the\nhighest marginal rate in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the\nhighest marginal rate in the state and locality of Executive's residence on the date on which the Gross-Up Payment is calculated, net\nof the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.\nC. "Total Payments" is defined as any or all of the amounts payable to Executive under this Agreement, after deduction of all applicable\nfederal, state and local income and employment taxes (except for Excise Taxes, as defined above) including such amounts that\nare\nin\nthe nature of compensation paid or payable by Sears or any of its subsidiaries in connection with a Change in Control.\n5. Non-Disparagement. Executive will not take any action detrimental to the interests of Sears or its affiliates, make derogatory statements, either\nwritten or oral to any third party, or otherwise publicly disparage Sears, its products, services, or present or former employees, officers or directors,\nand will not authorize others to make derogatory or disparaging statements on Executive's behalf.\n6. Intellectual Property. Rights. Executive acknowledges that Executive's development, work or research on any and all inventions or expressions of\nideas, patentable or not, hereafter made or conceived solely or jointly within the scope of employment at Sears, provided such invention or\nexpression of an idea relates to the business of Sears, or relates to Sears actual or demonstrably anticipated research or development, or results from\nany work performed by Executive for or on behalf of Sears, are hereby assigned to Sears, including Executive's entire rights, title and interest.\nExecutive will promptly disclose such invention or expression of an idea to Executive's management and will, upon request, promptly execute a\nspecific written assignment of title to Sears. If Executive currently holds any inventions or expressions of an idea, regardless of whether they were\npublished or filed with the U.S. Patent and Trademark Office, or is under contract to not so assign, Executive will list them on the last page of this\nAgreement.\n7. Confidentiality.. Executive agrees that the existence and terms of the Agreement, including the compensation paid to Executive, and discussions\nwith Sears on this Agreement, shall be considered confidential and shall not be disclosed or communicated in any manner except: (a) as required by\nlaw; or (b) to Executive's spouse or financial/legal advisors, all of whom shall agree to keep such information confidential.\n8. Protective Covenants. Executive acknowledges that this Agreement provides for additional consideration beyond what Sears is otherwise\nobligated to pay. In consideration of the opportunity for severance benefits and special payments specified above, and other good and valuable\nconsideration, Executive agrees to the following:\n(a) Non-Disclosure and Non-Solicitation. Executive acknowledges that Executive has previously or has simultaneously executed and\nwill continue to be bound by an Executive Non-Disclosure and Non-Solicitation of Employees Agreement, which agreement sets\nforth, among other things, the definition of Sears Confidential Information and is incorporated by reference herein.\n(b) Non-Competition. Executive acknowledges that as a result of Executive's position at Sears, Executive has learned or developed,\nor will learn or develop, Sears Confidential Information and that use or disclosure of such Confidential Information is likely to occur\nif Executive were to render advice or services to any Sears Competitor.\n(i) Therefore, for one (1) year from Executive's last day of active employment, whether or not Executive receives Severance Pay,\nExecutive will not, directly or indirectly, aid, assist, participate in, consult with, render services for, accept a position with, become\nemployed by, or otherwise enter into any relationship with (other than having a passive ownership interest in) any Sears Competitor.\nii. For purposes of this Agreement, "Sears Competitor" means\n(1) Those companies listed on Appendix B, each of which Executive acknowledges is a Sears Competitor, whether or\nnot it falls within the categories in (2), below, and further acknowledges that this is not an exclusive list of Sears\nCompetitors and is not intended to limit the generality of subsection 8(b)(ii)(2), below, and\n(2)\nAny\nparty\n(A)\nengaged\nin\nany\nretail\nbusiness\n(whether\nin\na\ndepartment\nstore,\nspecialty\nstore,\ndiscount\nstore,\ndirect\nmarketing, or electronic commerce or other business format), that consists of selling furniture, appliances, electronics,\nhardware, auto parts and/or apparel products, or providing home improvement, product repair, home services, and/or\nauto repair services, with combined annual gross sales in excess of $500 million, (B) engaged in any credit card or\nother consumer financial services business, with managed assets in excess of $5 billion, (C) any vendor with\ncombined annual gross sales of services or merchandise to Sears in excess of $100 million, or (D) a party engaged in\nany other line of business, in which Sears has commenced business prior to the end of Executive's active employment,\nwith Sears having annual gross sales in that line of business in excess of $50 million.\n(iii) Executive acknowledges that Sears shall have the right to propose modifications to Appendix B periodically to\ninclude (1) emergent Competitors in Sears existing lines of business and (2) Competitors in lines of business that are\nnew for Sears. Executive shall have sixty (60) days to object in writing to the Senior Vice President of Sears Human\nResources Department to any proposed modifications to Appendix B. The final decision as to any modification\nto\nwhich Executive makes a timely objection will be at the sole discretion of Sears.\n(iv) Executive further acknowledges that Sears does business throughout the United States, Puerto Rico and Canada\nand that this non-compete provision applies in any state of the United States, Puerto Rico or province of Canada in\nwhich Sears does business.\n(c) Executive will provide Sears with such information as Sears may from time to time request to determine Executive's compliance with this\nAgreement. Executive authorizes Sears to contact Executive's future employers and other entities with which Executive has any business relationship\nto determine Executive's compliance with this Agreement or to communicate the contents of this Agreement to such employers and entities.\nExecutive releases Sears, its agents and employees, from all liability for any damage arising from any such contacts or communications.\n(d) Executive agrees that the restrictions set forth above are necessary to prevent the use and disclosure of Sears Confidential Information\nand\nto\notherwise protect the legitimate business interests of Sears. Executive further agrees and acknowledges that the provisions of this Agreement are\nreasonable.\n(e) Upon the termination of Executive's employment by either party, Executive will execute a binding General Release and Waiver of claims\nin\na\nform\nto be provided by Sears, which is incorporated by reference herein. This General Release and Waiver will be in a form similar to the attached\nsample. If the General Release and Waiver is not signed or is signed but subsequently revoked, Executive will not receive Severance Pay (if any) or\nany other benefits due under this Agreement.\n(f) Executive acknowledges that irreparable harm would result from any breach or threatened breach by Executive of the provisions of this\nAgreement, and monetary damages alone would not provide adequate relief for any such breach. Accordingly, if Executive breaches this Agreement,\ninjunctive relief in favor of Sears is proper without the necessity of Sears posting bond. Moreover, any award of injunctive relief shall not preclude\nSears from seeking or recovering any lawful compensatory damages which may have resulted from a breach of this Agreement, including a\nforfeiture of any payments not yet made and a return of any payments already received by Executive.\n(g) Any waiver, or failure to seek enforcement or remedy for any breach or suspected breach, of any provision of this Agreement by Sears in any\ninstance shall not be deemed a waiver of such provision in the future.\n(h) Executive may request (i) a waiver of the non-competition provisions of this Agreement or (ii) that the time frame in Section 8(b), above,\ncommence during Executive's continued employment with Sears, by written request to the Chief Executive Officer of Sears or the equivalent. Such\na\nrequest will be given reasonable consideration and may be granted, in whole or in part, or denied at Sears' absolute discretion.\n9. In no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of any compensation or benefits\npayable to Executive hereunder; and except as specifically provided in paragraphs (a) and (b) of Section 1 and Sections 8(e) and 12, such\ncompensation and benefits shall not be reduced whether or not Executive obtains other employment.\n10. Executive agrees, without receiving additional compensation, to fully and completely cooperate with Sears, both during and after the period\nof\nactive employment, in all investigations, potential litigation or litigation in which Sears is involved or may become involved. Sears will reimburse\nExecutive for reasonable travel and out-of-pocket expenses.\n11. Executive agrees that both during and after the period of active employment with Sears, Executive will not voluntarily act as a witness,\nconsultant or expert for any person or party in any action against or involving Sears or any corporate relative of Sears, unless subject to judicial\nenforcement to appear as a fact witness only.\n12. In the event of a breach by Executive of any of the provisions of this Agreement, including but not limited to the non-disparagement provision\n(Section 5 herein), and the non-competition provisions (Section 8 herein) of this Agreement, Sears obligation to make salary continuation or\nany\nother payments under this Agreement will immediately cease.\n13. If any provision(s) of this Agreement shall be found invalid, illegal, or unenforceable, in whole or in part, then such provision(s) shall be deemed\nto be modified or restricted so as to effectuate as nearly as possible in a valid and enforceable way the provisions hereof, or shall be deemed excised\nfrom this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent permitted by law, as if\nsuch provision(s) had been originally incorporated herein as so modified or restricted or as if such provision(s) had not been originally incorporated\nherein, as the case may be.\n14. This Agreement will be governed under the internal laws of the state of Illinois. Executive agrees that the state and federal courts located in the\nstate of Illinois shall have exclusive jurisdiction in any action, suit or proceeding based on or arising out of this Agreement, and Executive hereby:\n(a) submits to the personal jurisdiction of such courts; (b) consents to the service of process in connection with any action, suit, or proceeding against\nExecutive; and (c) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction, venue\nor service of process.\n15. Executive agrees to waive any right to a jury trial on any claim contending that this Agreement or the General Release and Waiver is illegal or\nunenforceable in whole or in part, and Executive agrees to try any claims brought in a court or tribunal without use of a jury or advisory jury.\nFurther, should any claim arising out of Executive's employment or termination of employment be found by a court or tribunal of competent\njurisdiction to not be released by the General Release and Waiver, Executive agrees to try such claim to the court or tribunal without use of a jury or\nadvisory jury.\n16. This Agreement does not constitute a contract of employment, and Executive acknowledges that Executive's employment with Sears is\nterminable "at-will" by either party with or without cause and with or without notice.\n17. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Sears document, then the provisions of this\nAgreement will control. Executive shall not be eligible for any benefits under the Sears Transition Pay Plan or any successor severance plan or\nprogram. This Agreement will supersede any prior agreement between Executive and Sears with respect to the subject matter contained herein (with\nthe exception of the Executive Non-Disclosure and Non-Solicitation of Employees Agreement dated\n200_) and may be\namended only by a writing signed by an authorized officer of Sears.\n18. All compensation paid or provided to Executive under this Agreement shall be subject to any applicable federal, state or local income and\nemployment tax withholding requirements.\n19. Sears may assign its rights under this Agreement to any successor in interest, whether by merger, consolidation, sale of assets, or otherwise. This\nAgreement shall be binding whether it is between Sears and Executive or between any successor or assignee of Sears and Executive.\n20. This Agreement may be executed in one or more counterparts, which together shall constitute a valid and binding agreement.\nIN WITNESS WHEREOF, Executive and Sears, by its duly authorized representative, have executed this Agreement effective as of the date set forth\nbelow.\nSEARS, ROEBUCK AND CO.\nEXECUTIVE A\nDate\nDate\nA "change in control" or "Change in Control" shall mean:\n(a) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as\namended (the "Exchange Act") (a "Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of\n20% or more of either (i) the then outstanding common shares of the Company (the "Outstanding Company Common Shares") or (ii) the combined\nvoting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the "Outstanding\nCompany Voting Securities"); provided, however, that the following acquisitions shall not constitute a Change in Control: (i) any acquisition directly\nfrom the Company (excluding an acquisition by virtue of the exercise of a conversion privilege); (ii) any acquisition by the Company\nor\nany\nof\nits\nsubsidiaries; (iii) any acquisition by any employee benefit plan (or any related trust) sponsored or maintained by the Company of any of its\nsubsidiaries; or (iv) any acquisition by any corporation pursuant to a reorganization, merger or consolidation, if, following such reorganization,\nmerger or consolidation, the conditions described in clauses (i), (ii) and (iii) of (c) below are satisfied; or\n(b) Individuals who, as of the date hereof, constitute the Board of Directors of the Company (the "Board") (as of the date hereof, the "Incumbent\nBoard")\ncease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent\nto\nthe date hereof whose election, or nomination for election by the Company's shareholders, was approved by a vote of at least a majority of the\ndirectors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding,\nfor this purpose, any such individua whose initial assumption of office occurs as a result of either an actual or threatened election contest (as\nsuch\nterms are used under Section 14 of the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person\nother than the Board; or\n(c) Consummation of a reorganization, merger or consolidation unless, following such reorganization, merger or consolidation, (i) more than 60% of,\nrespectively, the then outstanding common shares of the corporation resulting from such reorganization, merger or consolidation and the combined\nvoting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then beneficially\nowned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the\nOutstanding Company Common Shares and Outstanding Company Voting Securities immediately prior to such reorganization, merger or\nconsolidation in substantially the same proportions as their ownership, immediately prior to such reorganization, merger or consolidation, of the\nOutstanding Company Common Shares and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding the Company,\nany of its subsidiaries, any employee benefit plan (or related trust) sponsored or maintained by the Company, any of its subsidiaries or such\ncorporation resulting from such reorganization, merger or consolidation and any Person beneficially owning, immediately prior to such\nreorganization, merger or consolidation, directly or indirectly, 20% or more of the Outstanding Company Common Shares or Outstanding Company\nVoting Securities, as the case may be) beneficially owns, directly or indirectly, 20% or more of, respectively, the then outstanding common shares of\nthe corporation resulting from such reorganization, merger or consolidation or the combined voting power of the then outstanding voting securities\nof such corporation entitled to vote generally in the election of directors and (iii) at least a majority of the members of the board of directors of the\ncorporation resulting from such reorganization, merger or consolidation were members of the Incumbent Board at the time of the execution of the\ninitial agreement providing for such reorganization, merger or consolidation; or\n(d) Approval by the shareholders of the Company of a complete liquidation or dissolution of the Company; or\n(e) Consummation of the sale or other disposition of all or substantially all of the assets of the Company, other than to a corporation, with respec to\nwhich following such sale or other disposition, (i) more then 60% of, respectively, the then outstanding common shares of such corporation and the\ncombined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then\nbeneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of\nthe Outstanding Company Common Shares and Outstanding Company Voting Securities immediately prior to such sale or other disposition in\nsubstantially the same proportion as their ownership, immediately prior to such sale or other disposition, of the Outstanding Company Common\nShares and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding the Company, any of its subsidiaries, and any\nemployee benefit plan (or related trust) sponsored or maintained by the Company, any of its subsidiaries or such corporation and any Person\nbeneficially owning, immediately prior to such sale or other disposition, directly or indirectly, 20% or more of the Outstanding Company Common\nShares or Outstanding Company Voting Securities, as the case may be) beneficially owns, directly or indirectly, 20% or more of, respectively, the\nthen outstanding common shares of such corporation and the combined voting power of the then outstanding voting securities of such corporation\nentitled to vote generally in the election of directors and (iii) at least a majority of the members of the board of directors of such corporation were\nmembers of the Incumbent Board at the time of the execution of the initial agreement or action of the Board providing for such sale or other\ndisposition of assets of the Company.\nFor purposes of the foregoing definition of "Change in Control", a "subsidiary" of the Company shall mean any corporation in which the Company,\ndirectly or indirectly, holds a majority of the voting power of such corporation's outstanding shares of capital stock.\nNOTICE: YOU MAY CONSIDER THIS GENERAL RELEASE AND WAIVER FOR UP TO TWENTY-ONE (21) DAYS. IF YOU\nDECIDE TO SIGN IT, YOU MAY REVOKE THE GENERAL RELEASE AND WAIVER WITHIN SEVEN (7) DAYS AFTER SIGNING.\nANY REVOCATION WITHIN THIS PERIOD MUST BE IMMEDIATELY SUBMITTED IN WRITING TO GENERAL COUNSEL,\nSEARS, ROEBUCK AND CO., 3333 BEVERLY ROAD, HOFFMAN ESTATES, IL 60179. YOU MAY WISH TO CONSULT\nWITH\nAN\nATTORNEY BEFORE SIGNING THIS DOCUMENT.\nGENERAL RELEASE AND WAIVER\nIn consideration for the benefits that I will receive under the attached Executive Severance/Non-Compete Agreement, I and any person acting by,\nthrough,\nor\nunder\nme\nhereby\nrelease,\nwaive,\nand\nforever\ndischarge\nSears,\nRoebuck\nand\nCo.,\nits\ncurrent\nand\nformer\nagents,\nsubsidiaries,\naffiliates,\nemployees, officers, shareholders, successors, and assigns ("Sears") from any and all liability, actions, charges, causes of action, demands, damages,\nor\nclaims for relief or remuneration of any kind whatsoever, whether known or unknown at this time, arising out of, or connected with, my\nemployment with Sears and the termination of my employment, including, but not limited to, all matters in law, in equity, in contract (oral or written\nexpress or implied), or in tort, or pursuant to statute, including any claim for age or other types of discrimination under the Age Discrimination in\nEmployment Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, or other federal, state, or local law or ordinance, to\nthe fullest extent permitted under the law, including the Employee Retirement Income Security Act. This General Release and Waiver does not apply\nto any claims or rights that may arise after the date that I signed this General Release and Waiver. I understand that Sears is not admitting to\nany\nviolation of my rights or any duty or obligation owed to me.\nExcluded from this General Release and Waiver are my claims which cannot be waived by law, including but not limited to (1) the right to file a\ncharge with or participate in an investigation conducted by certain government agencies, (2) any rights or claims to benefits accrued under benefit\nplans maintained by Sears pursuant to ERISA, and (3) any claims that cannot be waived under the Fair Labor Standards Act or Family and Medical\nLeave Act. I do, however, waive my right to any monetary recovery should any agency pursue any claims on my behalf. I represent and warrant that\nI have not filed any complaint, charge, or lawsuit against Sears with any governmental agency and/or any court.\nIn\naddition, I agree never to sue Sears in any forum for any claim covered by this General Release and Waiver except that I may bring a claim under\nthe ADEA to challenge this General Release and Waiver. If I violate this General Release and Waiver by suing Sears, other than under ADEA, I shall\nbe liable to Sears for its reasonable attorney's fees and other litigation costs and expenses incurred in defending against such a suit.\nI have read this General Release and Waiver and I understand its legal and binding effect. I am acting voluntarily and of my own free\nwill\nin\nexecuting this General Release and Waiver.\nI have had the opportunity to seek, and I was advised in writing to seek, legal counsel prior to signing this General Release and Waiver.\nI was given at least twenty-one (21) days to consider signing this General Release and Waiver. Any immaterial modification of this General Release\nand Waiver does not restart the twenty-one (21) day consideration period.\nI understand that, if I sign the General Release and Waiver, I can change my mind and revoke it within seven (7) days after signing it by notifying the\nGeneral Counsel of Sears in writing. I understand that this General Release and Waiver will not be effective until after this seven (7) day revocation\nperiod has expired.\nDate: SAMPLE ONLY DO NOT SIGN\nSigned by: SAMPLE ONLY DO NOT SIGN\nWitness	EX-10 6 ex10ii26.htm EXHIBIT 10.(II)(26)\nExhibit 10.(ii)(26)\nExecutive Non-Disclosure and\nNon-Solicitation of Employees Agreement\nEXECUTIVE A\n______________________________________________________________________________\nIn order for Sears, Roebuck and Co., including its subsidiaries (collectively referred to as "Sears'' or the "Company"), to\nmaintain a competitive edge, Sears must protect its Confidential Information and the stability of its workforce.\nTherefore, as a condition of employment with Sears, I agree as follows:\nDEFINITIONS\n1. "Sears Confidential Information" means trade secrets and non-public information which Sears designates as being\nconfidential or which, under the circumstances surrounding disclosure, should be treated as confidential, including,\nwithout limitation, any information received in confidence or developed by Sears, its long and short term goals, vendor\nand supply agreements, databases, methods, programs, techniques, business information, financial information,\nmarketing and business plans, proprietary software, personnel information and files, client information, pricing, and\nother information relating to the business of Sears that is not known generally to the public or in the industry and is of\nvalue to Sears.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION\n2. I will not, during the term of my employment with Sears or thereafter, except as Sears may otherwise consent or direct\nin writing, reveal or disclose, sell, use, lecture upon or publish any Sears Confidential Information until such time as the\ninformation becomes publicly known through a source other than me.\n3. I understand that if I possess any proprietary information of another person or company as a result of prior\nemployment or otherwise, Sears expects and requires that I will honor any and all legal obligations that I have to that\nperson or company with respect to proprietary information, and I will refrain from any unauthorized use or disclosure of\nsuch information.\nRETURN OF SEARS PROPERTY\n4. All documents and other tangible property which relate to the business of Sears are the exclusive property of Sears,\neven if I authored or created them. I agree to return all such documents and tangible property to Sears upon termination\nof employment or at such earlier time as Sears may request me to do so.\nCONFLICT OF INTEREST\n5. During my employment, neither I nor members of my immediate family will have financial investments or other\ninterests or relationships with the Company's customers, suppliers or competitors which might impair my independence\nof judgment on behalf of the Company. I also agree not to engage in any competitive activity against the Company and\nwill avoid any outside activity that could adversely affect the independence and objectivity of my judgment, interfere\nwith the timely and effective performance of my duties and responsibilities to the Company, discredit the Company or\notherwise conflict with the Company's best interests.\nNON-SOLICITATION OF EMPLOYEES\n6. During my employment with Sears and for one (1) year thereafter, I shall not, directly or indirectly, solicit or\nencourage any person to leave her/his employment with Sears or assist in any way with the hiring of any Sears employee\nby any other business.\nIRREPARABLE HARM\n7. Irreparable harm would result from any breach by me of the provisions of this Agreement, and monetary damages\nalone would not provide adequate relief for any such breach. Accordingly, if I breach or threaten to breach this\nAgreement, injunctive relief in favor of Sears is proper, without the necessity of Sears posting a bond. Moreover, any\naward of injunctive relief shall not preclude Sears from seeking or recovering any lawful compensatory damages which\nmay have resulted from a breach of this Agreement, including a forfeiture of any future payments and a return of any\npayments already received by me.\nSEVERABILITY\n8. If any provision of this Agreement is held invalid by a court, the remaining provisions will nonetheless be enforced\naccording to their terms. Further, if any provision is held to be overbroad, a court may modify that provision to the extent\nnecessary to make the provision enforceable according to applicable law and enforce the provision as modified.\nGOVERNING LAW\n9. This Agreement shall be construed, interpreted and enforced in accordance with the internal laws of the State of\nIllinois. I agree that the state and federal courts located in the State of Illinois shall have exclusive jurisdiction in any\naction, suit or proceeding based on or arising out of this Agreement, and I submit to the personal jurisdiction of such\ncourts, consent to the service of process in connection with any action, suit or proceeding against me, and waive any\nobjections to jurisdiction, venue or service of process.\nBURDEN AND BENEFIT\n10. Sears may assign its rights under this Agreement to any successor in interest, whether by merger, consolidation, sale\nof assets, or otherwise. This Agreement shall be binding whether it is between Sears and me or between any successor or\nassign of Sears and me.\nNO EFFECT ON TERM OF EMPLOYMENT\n11. Nothing in this Agreement prevents or limits my right to terminate my employment at any time for any reason, and\nnothing in this Agreement prevents or limits the Company from terminating my employment at any time for any reason.\nI understand and agree that there exist no promises or guarantees of permanent employment or employment for any\nspecified term by the Company.\nENTIRE AGREEMENT\n12. I understand that this Agreement contains the entire agreement and understanding between Sears and me with respect\nto the provisions contained in this Agreement, and that no representations, promises, agreements, or understandings,\nwritten or oral, related thereto which are not contained in this Agreement will be given any force or effect. No change or\nmodification of this Agreement will be valid or binding unless it is in writing and signed by the party against whom the\nchange or modification is sought to be enforced. I further understand that even if Sears waives or fails to enforce any\nprovision of this Agreement in one instance, that will not constitute a waiver of any other provisions of this Agreement\nat this time, or a waiver of that provision at any other time.\nEXECUTIVE A\nSEARS, ROEBUCK AND CO.\n___________ ______________________\nSignature of Executive\n_________________________________\n___________ ______________________\nDate\nBy:______________________________\n___________ _____________________\nAddress - Street\n_____________ ____________________\nTitle\n___________ ______________________\nAddress - City, State, Zip Code\n_____________ ____________________\nDate\nEXECUTIVE SEVERANCE/NON-COMPETE AGREEMENT\nIn this Executive Severance/Non-Compete Agreement dated as of ________ __, 2001 (the "Agreement"), Sears, Roebuck and Co., including its\nsubsidiaries (collectively referred to as "Sears"), and EXECUTIVE A ("Executive"), intending to be legally bound and for good and valuable\nconsideration, agree as follows:\n1. Severance Pay.\n(a) Should Executive be involuntarily terminated from Sears for any reason other than Cause (as defined below in Section 2(b)), death, total and\npermanent disability, or voluntary retirement, and other than a Change in Control Termination (as defined below in Section 2(b)), Sears agrees to pay\nseverance, subject to the provisions of Sections 8(e) and 12 herein, to Executive in an amount equal to: (i) an annual bonus, based on actual results\nfor the year in which active employment ends, pro rata through the date active employment ends, plus (ii) two (2) years of salary continuation,\nwhich will include annual base salary plus annual bonus at target as determined for the year in which active employment ends. Any such annual\nbonus amounts shall be paid at the same time as the annual bonus for that year is paid to Sears executives generally. The "annual bonus" consists of\npayments made under the Annual Incentive Compensation Plan or any successor annual incentive program. A lump sum payment will be made for\nany vacation benefits that accrued prior to the end of active employment. No vacation will accrue after the date active employment ends. After the\nfirst year of salary continuation, salary continuation payments and annual bonus payments will be subject to mitigation by the amount of any\ncompensation and benefits to which Executive is entitled because of any employment, including self-employment. All salary continuation payments,\nbenefits and annual bonus payments will terminate and forever lapse if Executive is employed by a "Sears Competitor" as defined in Section 8(b)\nherein.\n(b) During the salary continuation period, Executive will be placed on a leave of absence status and be entitled to all benefits (other than as specified\nabove) for which Executive was eligible to participate prior to the end of active employment, with the exception of Long-Term Disability, Flexible\nSpending Accounts and financial planning. Executive and eligible dependents shall be entitled to continue to participate in medical and dental plans\nto the same extent and on the same cost-sharing basis as if Executive's employment with Sears had continued during such period. However, in the\nevent Executive becomes employed by another employer and is covered by such employer's health benefits plan or program, the medical and dental\nbenefits provided by Sears hereunder shall be secondary to such employer's health benefits plan or program in accordance with the terms of Sears\nhealth benefit plans.\n(c) Any stock options, stock appreciation rights, or restricted stock, except as otherwise provided for herein, granted to Executive prior to the date\nactive employment ends, will continue to vest during the salary continuation period. Executive shall have the right to exercise any outstanding and\nfully vested stock option, stock appreciation right, or other exercisable equity-based award in accordance with its respective grant letter. Any\nrestricted stock grant that has not yet vested by the end of the salary continuation period will be governed by the terms of its respective grant letter.\n(d) Any payment earned under the 1999-2001 cycle of the Long Term Incentive Performance Plan will be calculated on a pro rata basis as of the\ndate active employment ends, not inclusive of the salary continuation period. Payment will be made to Executive at the same time that other Sears\nexecutives receive any such payout under the 1999-2001 cycle of the Long Term Incentive Performance Plan.\n(e) The Long Term Performance Incentive Program grant for the 2002-2004 period, and any other subsequent multi-year performance based grant or\naward, will be treated at termination of active employment in accordance with the provisions of its respective program document or grant letter.\n(f) At the beginning of the salary continuation period, Executive will be immediately eligible for outplacement services at Sears expense. Sears and\nExecutive will mutually agree on which outplacement firm, among current vendors used by Sears, will provide these services. Such services will be\nprovided for up to one (1) year from the beginning of the salary continuation period or until employment is obtained, whichever occurs first.\n2. Change in Control.\n(a) Sears shall pay to Executive, and Executive shall be entitled to receive, the Change in Control Severance Pay described in Section 3, if\nExecutive's employment is terminated under the circumstances described below (a "Change in Control Termination"), provided, however, that\nnotwithstanding the foregoing, a termination by reason of death, disability or voluntary retirement, by Sears for Cause, or by the Executive without\nGood Reason, shall not be deemed to be a Change in Control Termination.\n(b) For purposes of this Agreement, the following terms shall have the definitions as set forth below:\n(i) "Change in Control Termination" means the termination of Executive's employment with Sears and all of its subsidiaries which is:\n1. on the day of, or within 24 months after, the occurrence of a Change in Control, as such term is defined in Appendix\nA;\n2. prior to a Change in Control but at the request of any third-party participating in or causing the Change in Control;\n3. by Sears without Cause during a "Potential Change in Control Period" (as defined below), provided that a Change in\nControl occurs before the Potential Change in Control Period lapses; or\n4. by Executive for Good Reason during a Potential Change in Control Period, provided that a Change in Control occurs\nbefore the Potential Change in Control Period lapses;\n(The parties agree and understand that a termination described in Section 1(a) during a Potential Change in Control Period may later\nbecome a Change in Control Termination and entitle the Executive to any additional benefits set forth in Section 2(a).)\nii. "Cause" shall mean (1) a material breach by Executive (other than a breach resulting from Executive's incapacity due to a\nmental or physical disability) of Executive's duties and responsibilities (which upon a Change in Control, shall not differ\n(except with the consent of Executive) in any material respect from Executive's duties and responsibilities during the ninety\n(90) day period immediately prior to the Change in Control or any Potential Change in Control Period during which a Change\nin Control occurs), which breach is demonstrably willful and deliberate on Executive's part, is committed in bad faith or\nwithout reasonable belief that such breach is in the best interests of Sears and is not remedied in a reasonable period of time\nafter receipt of written notice from Sears specifying such breach, (2) the commission by Executive of a felony involving\nmoral turpitude, or (3) dishonesty or willful misconduct in connection with Executive's employment; and\niii. "Good Reason" shall mean a significant reduction in Executive's responsibilities, title, annual base salary, annual incentive\ncompensation target or long-term incentive compensation opportunity from those in effect immediately prior to the Change in\nControl (or to the Potential Change in Control Period during which the Change in Control occurs), or Executive's mandatory\nrelocation to an office more than 50 miles from the primary location at which Executive is required to perform Executive's\nduties immediately prior to the Change in Control (or to the Potential Change in Control Period during which the Change in\nControl occurs), and which reduction or relocation is not remedied in a reasonable period of time (which shall not be greater\nthan thirty (30) days) after receipt of written notice from Executive specifying that "Good Reason" exists for purposes of this\nAgreement. "Good Reason" shall also include failure of a successor company to assume or fulfill the obligations under this\nAgreement, including the prompt payment of any amounts due to Executive hereunder.\niv. "Potential Change in Control Period" shall commence upon the occurrence of a "Potential Change in Control" (as defined\nbelow) and shall lapse immediately following the first to occur of (a) a Change in Control, or, (b) the one-year anniversary of\nthe occurrence of a Potential Change in Control.\nv. "Potential Change in Control" shall be deemed to have occurred if the event set forth in any one of the following subsections\nshall have occurred:\n1. Sears enters into an agreement the consummation of which would result in the occurrence of a Change in Control;\n2. Sears or any other party publicly announces an intention to take or consider taking actions which, if consummated, would constitute a\nChange in Control,\n3. there occurs an acquisition of 15% of Sears shares or other voting securities that meets the criteria (other than the 20% ownership threshold)\nset forth in Section (a) of the definition of "Change in Control" in Appendix A, or\n4. the Board adopts a resolution to the effect that, for purposes of this agreement, a Potential Change in Control has occurred.\n(c) Executive acknowledges that Sears shall have the right to propose modifications to the subparagraphs defining a "Change in Control" [Appendix\nA] and "Good Reason" [2(b)(iii)]. Executive shall have sixty (60) days to object in writing to the Senior Vice President of Sears Human Resources\nDepartment as to any proposed modification to these subparagraphs. The final decision as to any modification to which Executive makes a timely\nobjection will be at the sole discretion of Sears. Modifications shall be proposed only if the conditions set forth in the then current Appendix A are\nnot present and may not be proposed during a Potential Change in Control Period. The right to make modifications under this subparagraph shall\nexpire and lapse upon the occurrence of a Change in Control event as defined in the then current Appendix A.\n(d) This Agreement will automatically terminate and its provisions and covenants will become null and void twenty-four (24) months after the\noccurrence of a Change in Control.\n3. Change in Control Severance Pay.\n(a) In the event of a Change in Control Termination, Sears agrees to pay Executive's base salary and annual bonus at target, pro rata through the date\nof the Change in Control Termination, plus severance pay equal to two (2) multiplied by the sum of (i) Executive's annual base salary in effect at the\ndate of the Change in Control Termination or, if greater, immediately prior to the Change in Control or the Potential Change in Control Period during\nwhich the Change in Control occurs, plus (ii) Executive's annual bonus at target as determined for the year in which termination occurs. Such\namounts will be paid in an undiscounted lump sum within thirty (30) days of Change in Control Termination.\n(b) During the two (2) year period following the Change in Control Termination, Executive will be placed on a leave of absence status and be\nentitled to all benefits for which Executive is eligible to participate, as provided in section 1 (b) above.\n(c) Any stock options, stock appreciation rights, or restricted stock that were outstanding immediately prior to the Change in Control Termination\nshall, to the extent not then vested, fully vest as of the date of the Change in Control Termination. Executive shall have the right to exercise any\noutstanding stock option or stock appreciation right until the expiration date of such stock option or stock appreciation right as set forth in its\nrespective grant letter.\n(d) Any payment earned under the 1999-2001 cycle of the Long Term Incentive Performance Plan will be paid at the target of the entire performance\ncycle. Payment will be made to Executive at the same time that other Sears executives receive any such payout under the 1999-2001 cycle of the\nLong Term Incentive Performance Plan.\n(e) The Long Term Performance Incentive Program grant for the 2002-2004 period, and any other subsequent multi-year performance based grant or\naward, will be treated at the time of the Change in Control Termination in accordance with the provisions of its respective program document or\ngrant letter.\n(f) Executive shall be entitled to outplacement benefits as described in Section 1(f), above.\n4. Gross-Up Payment.\na. If, for any reason, the Total Payments (as defined below) will be subject to excise taxes under Section 4999 of the Internal Revenue\nCode of 1986, as amended (the "Code") or any successor or similar provision ("Excise Tax"), Sears shall pay to Executive an\nadditional amount (the "Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on\nthe Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall\nbe equal to the Total Payments. The Total Payment will be subject to Excise Tax if any or all of the Total Payment is deemed to be\n"excess parachute payments" within the meaning of Section 280G(b)(1) of the Code or any successor or similar provision.\nb. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the\nhighest marginal rate in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the\nhighest marginal rate in the state and locality of Executive's residence on the date on which the Gross-Up Payment is calculated, net\nof the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.\nc. "Total Payments" is defined as any or all of the amounts payable to Executive under this Agreement, after deduction of all applicable\nfederal, state and local income and employment taxes (except for Excise Taxes, as defined above) including such amounts that are in\nthe nature of compensation paid or payable by Sears or any of its subsidiaries in connection with a Change in Control.\n5. Non-Disparagement. Executive will not take any action detrimental to the interests of Sears or its affiliates, make derogatory statements, either\nwritten or oral to any third party, or otherwise publicly disparage Sears, its products, services, or present or former employees, officers or directors,\nand will not authorize others to make derogatory or disparaging statements on Executive's behalf.\n6. Intellectual Property Rights. Executive acknowledges that Executive's development, work or research on any and all inventions or expressions of\nideas, patentable or not, hereafter made or conceived solely or jointly within the scope of employment at Sears, provided such invention or\nexpression of an idea relates to the business of Sears, or relates to Sears actual or demonstrably anticipated research or development, or results from\nany work performed by Executive for or on behalf of Sears, are hereby assigned to Sears, including Executive's entire rights, title and interest.\nExecutive will promptly disclose such invention or expression of an idea to Executive's management and will, upon request, promptly execute a\nspecific written assignment of title to Sears. If Executive currently holds any inventions or expressions of an idea, regardless of whether they were\npublished or filed with the U.S . Patent and Trademark Office, or is under contract to not so assign, Executive will list them on the last page of this\nAgreement.\n7. Confidentiality. Executive agrees that the existence and terms of the Agreement, including the compensation paid to Executive, and discussions\nwith Sears on this Agreement, shall be considered confidential and shall not be disclosed or communicated in any manner except: (a) as required by\nlaw; or (b) to Executive's spouse or financial/legal advisors, all of whom shall agree to keep such information confidential.\n8. Protective Covenants. Executive acknowledges that this Agreement provides for additional consideration beyond what Sears is otherwise\nobligated to pay. In consideration of the opportunity for severance benefits and special payments specified above, and other good and valuable\nconsideration, Executive agrees to the following:\n(a) Non-Disclosure and Non-Solicitation. Executive acknowledges that Executive has previously or has simultaneously executed and\nwill continue to be bound by an Executive Non-Disclosure and Non-Solicitation of Employees Agreement, which agreement sets\nforth, among other things, the definition of Sears Confidential Information and is incorporated by reference herein.\n(b) Non-Competition. Executive acknowledges that as a result of Executive's position at Sears, Executive has learned or developed,\nor will learn or develop, Sears Confidential Information and that use or disclosure of such Confidential Information is likely to occur\nif Executive were to render advice or services to any Sears Competitor.\n(i) Therefore, for one (1) year from Executive's last day of active employment, whether or not Executive receives Severance Pay,\nExecutive will not, directly or indirectly, aid, assist, participate in, consult with, render services for, accept a position with, become\nemployed by, or otherwise enter into any relationship with (other than having a passive ownership interest in) any Sears Competitor.\nii. For purposes of this Agreement, "Sears Competitor" means\n(1) Those companies listed on Appendix B, each of which Executive acknowledges is a Sears Competitor, whether or\nnot it falls within the categories in (2), below, and further acknowledges that this is not an exclusive list of Sears\nCompetitors and is not intended to limit the generality of subsection 8(b)(ii)(2), below, and\n(2) Any party (A) engaged in any retail business (whether in a department store, specialty store, discount store, direct\nmarketing, or electronic commerce or other business format), that consists of selling furniture, appliances, electronics,\nhardware, auto parts and/or apparel products, or providing home improvement, product repair, home services, and/or\nauto repair services, with combined annual gross sales in excess of $500 million, (B) engaged in any credit card or\nother consumer financial services business, with managed assets in excess of $5 billion, (C) any vendor with\ncombined annual gross sales of services or merchandise to Sears in excess of $100 million, or (D) a party engaged in\nany other line of business, in which Sears has commenced business prior to the end of Executive's active employment,\nwith Sears having annual gross sales in that line of business in excess of $50 million.\n(iii) Executive acknowledges that Sears shall have the right to propose modifications to Appendix B periodically to\ninclude (1) emergent Competitors in Sears existing lines of business and (2) Competitors in lines of business that are\nnew for Sears. Executive shall have sixty (60) days to object in writing to the Senior Vice President of Sears Human\nResources Department to any proposed modifications to Appendix B. The final decision as to any modification to\nwhich Executive makes a timely objection will be at the sole discretion of Sears.\n(iv) Executive further acknowledges that Sears does business throughout the United States, Puerto Rico and Canada\nand that this non-compete provision applies in any state of the United States, Puerto Rico or province of Canada in\nwhich Sears does business.\n(c) Executive will provide Sears with such information as Sears may from time to time request to determine Executive's compliance with this\nAgreement. Executive authorizes Sears to contact Executive's future employers and other entities with which Executive has any business relationship\nto determine Executive's compliance with this Agreement or to communicate the contents of this Agreement to such employers and entities.\nExecutive releases Sears, its agents and employees, from all liability for any damage arising from any such contacts or communications.\n(d) Executive agrees that the restrictions set forth above are necessary to prevent the use and disclosure of Sears Confidential Information and to\notherwise protect the legitimate business interests of Sears. Executive further agrees and acknowledges that the provisions of this Agreement are\nreasonable.\n(e) Upon the termination of Executive's employment by either party, Executive will execute a binding General Release and Waiver of claims in a\nform to be provided by Sears, which is incorporated by reference herein. This General Release and Waiver will be in a form similar to the attached\nsample. If the General Release and Waiver is not signed or is signed but subsequently revoked, Executive will not receive Severance Pay (if any) or\nany other benefits due under this Agreement.\n(f) Executive acknowledges that irreparable harm would result from any breach or threatened breach by Executive of the provisions of this\nAgreement, and monetary damages alone would not provide adequate relief for any such breach. Accordingly, if Executive breaches this Agreement,\ninjunctive relief in favor of Sears is proper without the necessity of Sears posting bond. Moreover, any award of injunctive relief shall not preclude\nSears from seeking or recovering any lawful compensatory damages which may have resulted from a breach of this Agreement, including a\nforfeiture of any payments not yet made and a return of any payments already received by Executive.\n(g) Any waiver, or failure to seek enforcement or remedy for any breach or suspected breach, of any provision of this Agreement by Sears in any\ninstance shall not be deemed a waiver of such provision in the future.\n(h) Executive may request (i) a waiver of the non-competition provisions of this Agreement or (ii) that the time frame in Section 8(b), above,\ncommence during Executive's continued employment with Sears, by written request to the Chief Executive Officer of Sears or the equivalent. Such a\nrequest will be given reasonable consideration and may be granted, in whole or in part, or denied at Sears' absolute discretion.\n9. In no event shall Executive be obligated to seek other employment or take any other action by way of mitigation of any compensation or benefits\npayable to Executive hereunder; and except as specifically provided in paragraphs (a) and (b) of Section 1 and Sections 8(e) and 12, such\ncompensation and benefits shall not be reduced whether or not Executive obtains other employment.\n10. Executive agrees, without receiving additional compensation, to fully and completely cooperate with Sears, both during and after the period of\nactive employment, in all investigations, potential litigation or litigation in which Sears is involved or may become involved. Sears will reimburse\nExecutive for reasonable travel and out-of-pocket expenses.\n11. Executive agrees that both during and after the period of active employment with Sears, Executive will not voluntarily act as a witness,\nconsultant or expert for any person or party in any action against or involving Sears or any corporate relative of Sears, unless subject to judicial\nenforcement to appear as a fact witness only.\n12. In the event of a breach by Executive of any of the provisions of this Agreement, including but not limited to the non-disparagement provision\n(Section 5 herein), and the non-competition provisions (Section 8 herein) of this Agreement, Sears obligation to make salary continuation or any\nother payments under this Agreement will immediately cease.\n13. If any provision(s) of this Agreement shall be found invalid, illegal, or unenforceable, in whole or in part, then such provision(s) shall be deemed\nto be modified or restricted so as to effectuate as nearly as possible in a valid and enforceable way the provisions hereof, or shall be deemed excised\nfrom this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent permitted by law, as if\nsuch provision(s) had been originally incorporated herein as so modified or restricted or as if such provision(s) had not been originally incorporated\nherein, as the case may be.\n14. This Agreement will be governed under the internal laws of the state of Illinois. Executive agrees that the state and federal courts located in the\nstate of Illinois shall have exclusive jurisdiction in any action, suit or proceeding based on or arising out of this Agreement, and Executive hereby:\n(a) submits to the personal jurisdiction of such courts; (b) consents to the service of process in connection with any action, suit, or proceeding against\nExecutive; and (c) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction, venue\nor service of process.\n15. Executive agrees to waive any right to a jury trial on any claim contending that this Agreement or the General Release and Waiver is illegal or\nunenforceable in whole or in part, and Executive agrees to try any claims brought in a court or tribunal without use of a jury or advisory jury.\nFurther, should any claim arising out of Executive's employment or termination of employment be found by a court or tribunal of competent\njurisdiction to not be released by the General Release and Waiver, Executive agrees to try such claim to the court or tribunal without use of a jury or\nadvisory jury.\n16. This Agreement does not constitute a contract of employment, and Executive acknowledges that Executive's employment with Sears is\nterminable "at-will" by either party with or without cause and with or without notice.\n17. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Sears document, then the provisions of this\nAgreement will control. Executive shall not be eligible for any benefits under the Sears Transition Pay Plan or any successor severance plan or\nprogram. This Agreement will supersede any prior agreement between Executive and Sears with respect to the subject matter contained herein (with\nthe exception of the Executive Non-Disclosure and Non-Solicitation of Employees Agreement dated _______________, 200__) and may be\namended only by a writing signed by an authorized officer of Sears.\n18. All compensation paid or provided to Executive under this Agreement shall be subject to any applicable federal, state or local income and\nemployment tax withholding requirements.\n19. Sears may assign its rights under this Agreement to any successor in interest, whether by merger, consolidation, sale of assets, or otherwise. This\nAgreement shall be binding whether it is between Sears and Executive or between any successor or assignee of Sears and Executive.\n20. This Agreement may be executed in one or more counterparts, which together shall constitute a valid and binding agreement.\nIN WITNESS WHEREOF, Executive and Sears, by its duly authorized representative, have executed this Agreement effective as of the date set forth\nbelow.\nSEARS, ROEBUCK AND CO.\n_ ___ ___ ___ ___ ___ ____ ___ ___ __\nEXECUTIVE A\nBY:____________________________\n_ ___ ___ ___ ___ ___ ____ ___ ___ __\nDate\n___ ___ ___ ___ ____ ___ ___ ___ ___\nDate\nA "change in control" or "Change in Control" shall mean:\n(a) The acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as\namended (the "Exchange Act") (a "Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of\n20% or more of either (i) the then outstanding common shares of the Company (the "Outstanding Company Common Shares") or (ii) the combined\nvoting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the "Outstanding\nCompany Voting Securities"); provided, however, that the following acquisitions shall not constitute a Change in Control: (i) any acquisition directly\nfrom the Company (excluding an acquisition by virtue of the exercise of a conversion privilege); (ii) any acquisition by the Company or any of its\nsubsidiaries; (iii) any acquisition by any employee benefit plan (or any related trust) sponsored or maintained by the Company of any of its\nsubsidiaries; or (iv) any acquisition by any corporation pursuant to a reorganization, merger or consolidation, if, following such reorganization,\nmerger or consolidation, the conditions described in clauses (i), (ii) and (iii) of (c) below are satisfied; or\n(b) Individuals who, as of the date hereof, constitute the Board of Directors of the Company (the "Board") (as of the date hereof, the "Incumbent\nBoard") cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to\nthe date hereof whose election, or nomination for election by the Company's shareholders, was approved by a vote of at least a majority of the\ndirectors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding,\nfor this purpose, any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such\nterms are used under Section 14 of the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person\nother than the Board; or\n(c) Consummation of a reorganization, merger or consolidation unless, following such reorganization, merger or consolidation, (i) more than 60% of,\nrespectively, the then outstanding common shares of the corporation resulting from such reorganization, merger or consolidation and the combined\nvoting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then beneficially\nowned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the\nOutstanding Company Common Shares and Outstanding Company Voting Securities immediately prior to such reorganization, merger or\nconsolidation in substantially the same proportions as their ownership, immediately prior to such reorganization, merger or consolidation, of the\nOutstanding Company Common Shares and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding the Company,\nany of its subsidiaries, any employee benefit plan (or related trust) sponsored or maintained by the Company, any of its subsidiaries or such\ncorporation resulting from such reorganization, merger or consolidation and any Person beneficially owning, immediately prior to such\nreorganization, merger or consolidation, directly or indirectly, 20% or more of the Outstanding Company Common Shares or Outstanding Company\nVoting Securities, as the case may be) beneficially owns, directly or indirectly, 20% or more of, respectively, the then outstanding common shares of\nthe corporation resulting from such reorganization, merger or consolidation or the combined voting power of the then outstanding voting securities\nof such corporation entitled to vote generally in the election of directors and (iii) at least a majority of the members of the board of directors of the\ncorporation resulting from such reorganization, merger or consolidation were members of the Incumbent Board at the time of the execution of the\ninitial agreement providing for such reorganization, merger or consolidation; or\n(d) Approval by the shareholders of the Company of a complete liquidation or dissolution of the Company; or\n(e) Consummation of the sale or other disposition of all or substantially all of the assets of the Company, other than to a corporation, with respect to\nwhich following such sale or other disposition, (i) more then 60% of, respectively, the then outstanding common shares of such corporation and the\ncombined voting power of the then outstanding voting securities of such corporation entitled to vote generally in the election of directors is then\nbeneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners, respectively, of\nthe Outstanding Company Common Shares and Outstanding Company Voting Securities immediately prior to such sale or other disposition in\nsubstantially the same proportion as their ownership, immediately prior to such sale or other disposition, of the Outstanding Company Common\nShares and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding the Company, any of its subsidiaries, and any\nemployee benefit plan (or related trust) sponsored or maintained by the Company, any of its subsidiaries or such corporation and any Person\nbeneficially owning, immediately prior to such sale or other disposition, directly or indirectly, 20% or more of the Outstanding Company Common\nShares or Outstanding Company Voting Securities, as the case may be) beneficially owns, directly or indirectly, 20% or more of, respectively, the\nthen outstanding common shares of such corporation and the combined voting power of the then outstanding voting securities of such corporation\nentitled to vote generally in the election of directors and (iii) at least a majority of the members of the board of directors of such corporation were\nmembers of the Incumbent Board at the time of the execution of the initial agreement or action of the Board providing for such sale or other\ndisposition of assets of the Company.\nFor purposes of the foregoing definition of "Change in Control", a "subsidiary" of the Company shall mean any corporation in which the Company,\ndirectly or indirectly, holds a majority of the voting power of such corporation's outstanding shares of capital stock.\nNOTICE: YOU MAY CONSIDER THIS GENERAL RELEASE AND WAIVER FOR UP TO TWENTY-ONE (21) DAYS. IF YOU\nDECIDE TO SIGN IT, YOU MAY REVOKE THE GENERAL RELEASE AND WAIVER WITHIN SEVEN (7) DAYS AFTER SIGNING.\nANY REVOCATION WITHIN THIS PERIOD MUST BE IMMEDIATELY SUBMITTED IN WRITING TO GENERAL COUNSEL,\nSEARS, ROEBUCK AND CO., 3333 BEVERLY ROAD, HOFFMAN ESTATES, IL 60179. YOU MAY WISH TO CONSULT WITH AN\nATTORNEY BEFORE SIGNING THIS DOCUMENT.\nGENERAL RELEASE AND WAIVER\nIn consideration for the benefits that I will receive under the attached Executive Severance/Non-Compete Agreement, I and any person acting by,\nthrough, or under me hereby release, waive, and forever discharge Sears, Roebuck and Co., its current and former agents, subsidiaries, affiliates,\nemployees, officers, shareholders, successors, and assigns ("Sears") from any and all liability, actions, charges, causes of action, demands, damages,\nor claims for relief or remuneration of any kind whatsoever, whether known or unknown at this time, arising out of, or connected with, my\nemployment with Sears and the termination of my employment, including, but not limited to, all matters in law, in equity, in contract (oral or written,\nexpress or implied), or in tort, or pursuant to statute, including any claim for age or other types of discrimination under the Age Discrimination in\nEmployment Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, or other federal, state, or local law or ordinance, to\nthe fullest extent permitted under the law, including the Employee Retirement Income Security Act. This General Release and Waiver does not apply\nto any claims or rights that may arise after the date that I signed this General Release and Waiver. I understand that Sears is not admitting to any\nviolation of my rights or any duty or obligation owed to me.\nExcluded from this General Release and Waiver are my claims which cannot be waived by law, including but not limited to (1) the right to file a\ncharge with or participate in an investigation conducted by certain government agencies, (2) any rights or claims to benefits accrued under benefit\nplans maintained by Sears pursuant to ERISA, and (3) any claims that cannot be waived under the Fair Labor Standards Act or Family and Medical\nLeave Act. I do, however, waive my right to any monetary recovery should any agency pursue any claims on my behalf. I represent and warrant that\nI have not filed any complaint, charge, or lawsuit against Sears with any governmental agency and/or any court.\nIn addition, I agree never to sue Sears in any forum for any claim covered by this General Release and Waiver except that I may bring a claim under\nthe ADEA to challenge this General Release and Waiver. If I violate this General Release and Waiver by suing Sears, other than under ADEA, I shall\nbe liable to Sears for its reasonable attorney's fees and other litigation costs and expenses incurred in defending against such a suit.\nI have read this General Release and Waiver and I understand its legal and binding effect. I am acting voluntarily and of my own free will in\nexecuting this General Release and Waiver.\nI have had the opportunity to seek, and I was advised in writing to seek, legal counsel prior to signing this General Release and Waiver.\nI was given at least twenty-one (21) days to consider signing this General Release and Waiver. Any immaterial modification of this General Release\nand Waiver does not restart the twenty-one (21) day consideration period.\nI understand that, if I sign the General Release and Waiver, I can change my mind and revoke it within seven (7) days after signing it by notifying the\nGeneral Counsel of Sears in writing. I understand that this General Release and Waiver will not be effective until after this seven (7) day revocation\nperiod has expired.\nDate: SAMPLE ONLY - DO NOT SIGN\nSigned by: SAMPLE ONLY - DO NOT SIGN\nWitness by:____________________________
+05947711a24a5b7ce401911d31e19c91.pdf	effective_date jurisdiction party term	EX-99.(E)(2) 3 dex99e2.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT (e)(2)\nPRIVILEGED AND CONFIDENTIAL\nDecember 28, 2006\nPotomac Key Group, LLC\nAttn: Stuart Mackiernan\nRe: Confidentiality Agreement\nDear Sir:\nPotomac Key Group, LLC (the “Undersigned”) has requested information concerning CompuDyne Corporation and its subsidiaries (together,\nthe “Company”) in connection with its consideration of a potential acquisition of, or other transaction with, such Company (the “Potential\nTransaction”). As a condition to the furnishing to the Undersigned and its Representatives (as defined below) of certain information about the\nCompany, the Undersigned agrees to be bound by the terms and conditions of this agreement, and the Undersigned further agrees to inform any\nRepresentative to whom Proprietary Information (as defined below) is disclosed pursuant to the terms of this agreement of the contents of this\nagreement and the confidential nature of the Proprietary Information (as defined below).\nAll information furnished by or on behalf of the Company or its Representatives, or learned by the Undersigned during any visits to the\nCompany’s facilities in connection with its consideration of a Potential Transaction, whether furnished or learned before or after the date hereof,\nwhether oral, written or electronic, and regardless of the manner or form in which it is furnished or learned, including, without limitation, all data,\nreports, interpretations, forecasts and records containing or otherwise reflecting information concerning the Company or its affiliates or the Potential\nTransaction, whether prepared by the Company or others, and any summaries, analyses or other documents created by the Undersigned, the\nCompany or others which refer to, relate to, discuss, constitute, or embody all or any portion of the Proprietary Information provided by the\nCompany or its Representatives, is referred to in this agreement as “Proprietary Information.” The term Proprietary Information shall not include,\nhowever, information which (a) is or becomes generally available to the public other than as a result of a disclosure by the Undersigned or its\nRepresentatives, (b) was in the Undersigned’s possession and obtained on a non-confidential basis prior to its disclosure by the Company or its\nRepresentatives, (c) becomes available to the Undersigned on a non-confidential basis from a person other than the Company or its Representatives\nwho, to the knowledge after due inquiry of the Undersigned or its Representatives, as the case may be, is not otherwise bound by a confidentiality\nagreement with the Company or any of its Representatives, or is otherwise not under an obligation to the Company or any of its Representatives not\nto transmit the information to the Undersigned or (d) is developed by the Undersigned or its Representative without reference to the Proprietary\nInformation. As used in this agreement, the term “Representatives” means, as to any person, such person’s affiliates and its and their directors,\nofficers, employees, agents, advisors (including, without limitation, financial advisors, counsel and accountants) and\ncontrolling persons. As used in this agreement, the term “person” shall be broadly interpreted to include, without limitation, the media, any\ncorporation, company, partnership, other entity or individual.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by the Company or CompuDyne Corporation\n(“Parent”), the Undersigned agrees that for a period of two years (a) except as required by law, rule, regulation, stock exchange rule or disclosure\nrequirement of the Securities and Exchange Commission (collectively, “Law”), or with the prior written consent of the Company, to keep all\nProprietary Information confidential and not to disclose or reveal any Proprietary Information to any person other than its Representatives who are\nactively and directly participating in the evaluation of a Potential Transaction, (b) not to use Proprietary Information for any purpose other than in\nconnection with its evaluation or negotiation of a Potential Transaction or the consummation of a Potential Transaction and (c) except as required by\nLaw, not to disclose to any person (other than those of its Representatives who are participating in the evaluation of a Potential Transaction) any\ninformation about a Potential Transaction, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that\ndiscussions are taking place with respect thereto, the status thereof, or the fact that Proprietary Information has been made available to the\nUndersigned or its Representatives. At a minimum, the Undersigned shall treat any Proprietary Information according to the same internal security\nprocedures and with the same degree of care regarding its secrecy and confidentiality as similar information belonging to it is treated within its\norganization. The Undersigned shall be responsible for any breach of the terms of this agreement by the Undersigned or any of its Representatives\nand agrees to take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of any Proprietary\nInformation.\nIn the event that the Undersigned or any of its Representatives is legally compelled, pursuant to a subpoena, civil investigative demand,\nregulatory demand or similar process or pursuant to applicable Law to disclose any Proprietary Information or any other information concerning the\nCompany or a Potential Transaction, the Undersigned shall seek a written opinion from reputable and experienced outside counsel that a specific\ndisclosure is necessary in order for the Undersigned not to be in violation of or default under an applicable Law or order. The Undersigned agrees\nthat, to the extent permitted by Law, it shall provide the Company with prompt notice of such request or requirement as well as a copy of such\nopinion together with the text of the proposed disclosure as far in advance of its disclosure as is reasonably practicable, and will in good faith consult\nwith and consider the suggestions of the Company concerning the nature and scope of the information the Undersigned proposes to disclose. The\nCompany may seek, at the Company’s sole expense, an appropriate protective order or other remedy, may consult with the Undersigned with respect\nto the Company’s taking steps to resist or narrow the scope of such request or legal process, or may waive compliance, in whole or in part, with the\nterms of this agreement. The Undersigned agrees to cooperate fully, at the Company’s sole expense, with and not to oppose any action by the\nCompany to obtain a protective order or other appropriate remedy. In the event that no such protective order or other remedy is obtained, or that the\nCompany waives compliance with the terms of this agreement, the Undersigned may disclose only that part of the Proprietary Information .as it is\nadvised by counsel in writing is legally required. In any such event, the Undersigned shall use its best efforts to ensure that all Proprietary\nInformation and other information that is so disclosed will be accorded confidential treatment.\nThe Undersigned agrees that, without the Company’s consent, it will not for a period of one year from the date hereof directly or indirectly\nsolicit for employment or employ any person who is now an officer of the Company or its subsidiaries; provided, however, that the Undersigned\nshall not be prohibited from (a) employing any such person who contacts the Undersigned on his or her own initiative and without any direct or\nindirect solicitation by the Undersigned, (b) employing any such person in response to generalized solicitations for employees (which solicitations\nare not specifically targeted at the Company’s or its subsidiaries’ employees) through the use of media advertisements, professional search firms or\notherwise, (c) employing any such person who has not been employed by the Company for a period of six months prior\n2\nto employment with the Undersigned, or (d) if the Undersigned enters into a Potential Transaction and a definitive agreement regarding the\nCompany, employing such persons connected with the Company in accordance with such definitive agreement and in accordance with all applicable\nlaws.\nThe Undersigned acknowledges that the Proprietary Information is and at all times remains the sole and exclusive property of the Company,\nand the Company has the exclusive right, title, and interest to such Proprietary Information. No right or license, by implication or otherwise, is\ngranted by the Company as a result of any disclosure of Proprietary Information under this agreement.\nThe Undersigned acknowledges that neither the Company nor any of its Representatives makes any express or implied representation or\nwarranty as to the accuracy or completeness of any Proprietary Information, and the Undersigned agrees that neither the Company nor any of its\nRepresentatives shall have any liability to the Undersigned or any of its Representatives relating to or arising from the use of any Proprietary\nInformation by the Undersigned or its Representatives or for any errors therein or omissions therefrom. The Undersigned also agrees that it is not\nentitled to rely on the accuracy or completeness of any Proprietary Information and that it shall be entitled to rely solely on such representations and\nwarranties regarding Proprietary Information as may be made to it in any final agreement relating to a Potential Transaction, subject to the terms and\nconditions of such agreement.\nThe Undersigned acknowledges that the Company may establish procedures and guidelines (the “Procedures”) for the submission of proposals\nwith respect to a Potential Transaction. The Undersigned acknowledges and agrees that (a) the Company and its Representatives are free to conduct\nthe process leading up to a Potential Transaction as the Company and its Representatives, in their sole discretion, determine (including, without\nlimitation, by negotiating with any third party and entering into a preliminary or definitive agreement without prior notice to the Undersigned or any\nother person); (b) the Company reserves the right, in its sole discretion, to change the Procedures relating to the consideration of a Potential\nTransaction at any time without prior notice to the Undersigned or any other person, to reject any and all proposals made by the Undersigned or any\nof its Representatives regarding a Potential Transaction, and to terminate discussions and negotiations with the Undersigned at any time and for any\nreason; and (c) neither the Company nor any of its Representatives nor any third party with whom the Company may enter into any agreement for or\ncomplete any transaction, shall have any liability to the Undersigned or its Representatives arising out of or relating to such transaction.\nExcept as permitted herein, the Undersigned agrees not to initiate or maintain contact (except for contacts made in connection with existing\ncommercial relationships and/or in the ordinary .course of business) with any officer, director, employee or agent of the Company with respect to the\nPotential Transaction except with the express prior permission of the Company. It is understood that, if appropriate, the Company will arrange for\ncontacts for due diligence purposes. It is further understood that all (a) communications regarding a Potential Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings and (d) discussions or questions regarding the Procedures will be submitted only\nto designated employees of Parent or the Company.\nThis agreement binds the parties only with respect to the matters expressly set forth herein, and neither party is bound or committed to\nnegotiate or consummate a Potential Transaction unless and until a definitive agreement on such matters has been executed and delivered on behalf\nof both parties by their duly authorized officers.\nIf the Undersigned determines that it does not wish to proceed with a Potential Transaction, it will promptly advise the Company of that\ndecision in writing. In such case, or if the Company so requests or a Potential Transaction is not consummated with the Undersigned, the\nUndersigned will promptly destroy all copies of Proprietary Information (and all summaries and notes of the contents or\n3\nparts thereof) in its possession or in the possession of any of its Representatives; provided, however, that the Undersigned shall return all copies of\nProprietary Information in its possession or in the possession of any of its Representatives to the Company, if the Company so requests in writing,\nwithin five (5) business days after receiving such a request from the Company. The Undersigned shall not retain any copies or other reproductions in\nwhole or in part of such material. An officer of the Undersigned shall certify the Undersigned’s compliance with this paragraph. Notwithstanding the\nforegoing, if and to the extent the Undersigned or its Representatives is required by applicable Law or its record keeping policies to retain copies of\nany Proprietary Information, the Undersigned or its Representatives, as applicable, will be permitted to keep and maintain such copies of Proprietary\nInformation subject to the terms of this agreement. Notwithstanding the return or destruction of the Proprietary Information, the Undersigned and its\nRepresentatives shall continue to be bound by their obligations hereunder.\nThe Undersigned is aware, and will advise its Representatives who are informed of the matters that are the subject of this agreement, of the\nrestrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public\ninformation from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable\nthat such other person is likely to purchase or sell such securities in reliance upon such information. The Undersigned hereby confirms that it, and its\nRepresentatives, shall take any action necessary to prevent the use of any information about the Company in a way which might violate any antitrust\nor other applicable Law.\nUnless specifically permitted in writing in advance by the Company, the Undersigned agrees that it will not, and it shall cause its\nRepresentatives not to, for a period of 12 months from the date of this agreement (and will not at any time during such period assist or encourage\nothers to): (a) acquire or agree, offer, seek or propose to acquire (or directly or indirectly request permission to do so), directly or indirectly, alone or\nin concert with any other person, by purchase or otherwise, any ownership, including, but not limited to, beneficial ownership as defined in Rule 13d\n3 under the Securities Exchange Act of 1934, as amended (the “Act”), of any of the assets, businesses or common stock of the company or any\nsecurities convertible into or exchangeable for or exercisable (whether currently or upon the occurrence of any contingency) for the purchase of\ncommon stock (collectively, “Stock”) or any other rights or options to acquire such ownership (including from any third party); (b) solicit proxies (as\nsuch terms are defined in Rule 14a 1 under the Act), whether or not such solicitation is exempt under Rule 14a 2 under the Act, with respect to any\nmatter from holders of any shares of Stock, or make any communication exempted from the definition of solicitation by Rule 14a l(l)(2)(iv) under\nthe Act; (c) offer to enter into or may any public announcement or proposal with respect to any merger, business combination, recapitalization,\nrestructuring or other extraordinary transaction involving the Company or initiate, or induce or attempt to induce or participate with any other\nperson, entity or group (as defined in Section 13(d)(3) of the Act) to initiate, any stockholder proposal or tender offer for any Stock, any change of\ncontrol of the Company, or the convening of the stockholders’ meeting of the Company; (d) request the Company (or its directors, officers,\nemployees or agents), directly or indirectly, to amend or waive any provision of this paragraph; (e) take any action inconsistent with any of the\nforegoing subparagraphs (a) through (d); or (f) take any action with respect to any of the matters described in this paragraph that requires public\ndisclosure or disclose any intention inconsistent with the foregoing.\nIt is understood that the covenants of this agreement and the Proprietary Information disclosed are special, unique and of extraordinary\ncharacter. The Company may be irreparably harmed by a breach of this agreement, and the use of the Proprietary Information for the business\npurposes of any person other than the parties to this agreement may enable such person to compete unfairly with the Company. In the event that the\nUndersigned or its Representatives shall have knowledge of any breach of this agreement, it shall promptly give notice thereof to the Company.\nWithout prejudice to the rights and remedies otherwise available to the Company, the Undersigned agrees that the Company shall be\n4\nentitled to seek equitable relief by way of injunction, specific performance, or otherwise if the Undersigned or any of its Representatives breach or\nthreaten to breach any of the provisions of this agreement. Additionally, the Company shall not be required to post bond, any requirement of bond\nbeing specifically waived by you.\nIt is further understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate\nas a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power\nor privilege hereunder.\nThis agreement shall be governed by and construed in accordance with the laws of New York applicable to contracts executed in and to be\nperformed in that State. The parties hereto agree that the venue in any and all actions and proceedings related to this agreement shall be the state and\nfederal courts in and for New York, New York, which courts shall have exclusive personal and subject matter jurisdiction for such purpose, and the\nparties hereto irrevocably submit to the exclusive jurisdiction of such courts and irrevocably waive the defense of an inconvenient forum to the\nmaintenance of any such action or proceeding.\nThe Undersigned agrees that the rights and remedies of the Company under this agreement shall inure to the benefit of the Company, its\naffiliates, successors and assigns. The Undersigned may not assign this agreement without the prior written consent of the Company which may be\nwithheld at the Company’s sole discretion. This agreement shall be binding upon the Undersigned’s successors and permitted assigns. Unless\notherwise extended in writing by all of the parties or otherwise terminated pursuant to its terms, this agreement shall automatically terminate on the\nearlier of (i) the second anniversary of the date hereof and (ii) the execution of a definitive agreement for a Potential Transaction.\n5\nThis agreement contains the entire agreement between the Company and the Undersigned concerning the subject matter hereof, and no\nmodification of this agreement or waiver of the terms and conditions hereof shall be binding upon the Company or the Undersigned, unless approved\nin writing by both of the parties hereto. If any provision of this agreement shall, for any reason, be adjudged by any court of competent jurisdiction\nto be invalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder of this agreement but shall be confined in its\noperation to the provision of this agreement directly involved in the controversy in which such judgment shall have been rendered. This agreement\nmay be executed in counterparts, each of which shall be an original, but all of which together shall constitute one and the same agreement.\nCOMPUDYNE CORPORATION\nBy: /s/ Geoffrey Feidelberg\nName: Geoffrey Feidelberg\nTitle: CFO\nAccepted and Agreed\nas of the date set forth above:\nPOTOMAC KEY GROUP, LLC:\nBy: /s/ Stuart Mackiernan\nName: Stuart Mackiernan\nTitle: President\nJanuary 3, 2007\nDate\n6	EX-99.(E)(2) 3 dex99e2.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT (e)(2)\nPRIVILEGED AND CONFIDENTIAL\nDecember 28, 2006\nPotomac Key Group, LLC\nAttn: Stuart Mackiernan\nRe: Confidentiality Agreement\nDear Sir:\nPotomac Key Group, LLC (the “Undersigned”) has requested information concerning CompuDyne Corporation and its subsidiaries (together,\nthe “Company”) in connection with its consideration of a potential acquisition of, or other transaction with, such Company (the “Potential\nTransaction”). As a condition to the furnishing to the Undersigned and its Representatives (as defined below) of certain information about the\nCompany, the Undersigned agrees to be bound by the terms and conditions of this agreement, and the Undersigned further agrees to inform any\nRepresentative to whom Proprietary Information (as defined below) is disclosed pursuant to the terms of this agreement of the contents of this\nagreement and the confidential nature of the Proprietary Information (as defined below).\nAll information furnished by or on behalf of the Company or its Representatives, or learned by the Undersigned during any visits to the\nCompany’s facilities in connection with its consideration of a Potential Transaction, whether furnished or learned before or after the date hereof,\nwhether oral, written or electronic, and regardless of the manner or form in which it is furnished or learned, including, without limitation, all data,\nreports, interpretations, forecasts and records containing or otherwise reflecting information concerning the Company or its affiliates or the Potential\nTransaction, whether prepared by the Company or others, and any summaries, analyses or other documents created by the Undersigned, the\nCompany or others which refer to, relate to, discuss, constitute, or embody all or any portion of the Proprietary Information provided by the\nCompany or its Representatives, is referred to in this agreement as “Proprietary Information.” The term Proprietary Information shall not include,\nhowever, information which (a) is or becomes generally available to the public other than as a result of a disclosure by the Undersigned or its\nRepresentatives, (b) was in the Undersigned’s possession and obtained on a non-confidential basis prior to its disclosure by the Company or its\nRepresentatives, (c) becomes available to the Undersigned on a non-confidential basis from a person other than the Company or its Representatives\nwho, to the knowledge after due inquiry of the Undersigned or its Representatives, as the case may be, is not otherwise bound by a confidentiality\nagreement with the Company or any of its Representatives, or is otherwise not under an obligation to the Company or any of its Representatives not\nto transmit the information to the Undersigned or (d) is developed by the Undersigned or its Representative without reference to the Proprietary\nInformation. As used in this agreement, the term “Representatives” means, as to any person, such person’s affiliates and its and their directors,\nofficers, employees, agents, advisors (including, without limitation, financial advisors, counsel and accountants) and\ncontrolling persons. As used in this agreement, the term “person” shall be broadly interpreted to include, without limitation, the media, any\ncorporation, company, partnership, other entity or individual.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by the Company or CompuDyne Corporation\n(“Parent”), the Undersigned agrees that for a period of two years (a) except as required by law, rule, regulation, stock exchange rule or disclosure\nrequirement of the Securities and Exchange Commission (collectively, “Law”), or with the prior written consent of the Company, to keep all\nProprietary Information confidential and not to disclose or reveal any Proprietary Information to any person other than its Representatives who are\nactively and directly participating in the evaluation of a Potential Transaction, (b) not to use Proprietary Information for any purpose other than in\nconnection with its evaluation or negotiation of a Potential Transaction or the consummation of a Potential Transaction and (c) except as required by\nLaw, not to disclose to any person (other than those of its Representatives who are participating in the evaluation of a Potential Transaction) any\ninformation about a Potential Transaction, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that\ndiscussions are taking place with respect thereto, the status thereof, or the fact that Proprietary Information has been made available to the\nUndersigned or its Representatives. At a minimum, the Undersigned shall treat any Proprietary Information according to the same internal security\nprocedures and with the same degree of care regarding its secrecy and confidentiality as similar information belonging to it is treated within its\norganization. The Undersigned shall be responsible for any breach of the terms of this agreement by the Undersigned or any of its Representatives\nand agrees to take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of any Proprietary\nInformation.\n \nIn the event that the Undersigned or any of its Representatives is legally compelled, pursuant to a subpoena, civil investigative demand,\nregulatory demand or similar process or pursuant to applicable Law to disclose any Proprietary Information or any other information concerning the\nCompany or a Potential Transaction, the Undersigned shall seek a written opinion from reputable and experienced outside counsel that a specific\ndisclosure is necessary in order for the Undersigned not to be in violation of or default under an applicable Law or order. The Undersigned agrees\nthat, to the extent permitted by Law, it shall provide the Company with prompt notice of such request or requirement as well as a copy of such\nopinion together with the text of the proposed disclosure as far in advance of its disclosure as is reasonably practicable, and will in good faith consult\nwith and consider the suggestions of the Company concerning the nature and scope of the information the Undersigned proposes to disclose. The\nCompany may seek, at the Company’s sole expense, an appropriate protective order or other remedy, may consult with the Undersigned with respect\nto the Company’s taking steps to resist or narrow the scope of such request or legal process, or may waive compliance, in whole or in part, with the\nterms of this agreement. The Undersigned agrees to cooperate fully, at the Company’s sole expense, with and not to oppose any action by the\nCompany to obtain a protective order or other appropriate remedy. In the event that no such protective order or other remedy is obtained, or that the\nCompany waives compliance with the terms of this agreement, the Undersigned may disclose only that part of the Proprietary Information .as it is\nadvised by counsel in writing is legally required. In any such event, the Undersigned shall use its best efforts to ensure that all Proprietary\nInformation and other information that is so disclosed will be accorded confidential treatment.\nThe Undersigned agrees that, without the Company’s consent, it will not for a period of one year from the date hereof directly or indirectly\nsolicit for employment or employ any person who is now an officer of the Company or its subsidiaries; provided, however, that the Undersigned\nshall not be prohibited from (a) employing any such person who contacts the Undersigned on his or her own initiative and without any direct or\nindirect solicitation by the Undersigned, (b) employing any such person in response to generalized solicitations for employees (which solicitations\nare not specifically targeted at the Company’s or its subsidiaries’ employees) through the use of media advertisements, professional search firms or\notherwise, (c) employing any such person who has not been employed by the Company for a period of six months prior\n2\nto employment with the Undersigned, or (d) if the Undersigned enters into a Potential Transaction and a definitive agreement regarding the\nCompany, employing such persons connected with the Company in accordance with such definitive agreement and in accordance with all applicable\nlaws.\nThe Undersigned acknowledges that the Proprietary Information is and at all times remains the sole and exclusive property of the Company,\nand the Company has the exclusive right, title, and interest to such Proprietary Information. No right or license, by implication or otherwise, is\ngranted by the Company as a result of any disclosure of Proprietary Information under this agreement.\nThe Undersigned acknowledges that neither the Company nor any of its Representatives makes any express or implied representation or\nwarranty as to the accuracy or completeness of any Proprietary Information, and the Undersigned agrees that neither the Company nor any of its\nRepresentatives shall have any liability to the Undersigned or any of its Representatives relating to or arising from the use of any Proprietary\nInformation by the Undersigned or its Representatives or for any errors therein or omissions therefrom. The Undersigned also agrees that it is not\nentitled to rely on the accuracy or completeness of any Proprietary Information and that it shall be entitled to rely solely on such representations and\nwarranties regarding Proprietary Information as may be made to it in any final agreement relating to a Potential Transaction, subject to the terms and\nconditions of such agreement.\nThe Undersigned acknowledges that the Company may establish procedures and guidelines (the “Procedures™) for the submission of proposals\nwith respect to a Potential Transaction. The Undersigned acknowledges and agrees that (a) the Company and its Representatives are free to conduct\nthe process leading up to a Potential Transaction as the Company and its Representatives, in their sole discretion, determine (including, without\nlimitation, by negotiating with any third party and entering into a preliminary or definitive agreement without prior notice to the Undersigned or any\nother person); (b) the Company reserves the right, in its sole discretion, to change the Procedures relating to the consideration of a Potential\nTransaction at any time without prior notice to the Undersigned or any other person, to reject any and all proposals made by the Undersigned or any\nof its Representatives regarding a Potential Transaction, and to terminate discussions and negotiations with the Undersigned at any time and for any\nreason; and (c) neither the Company nor any of its Representatives nor any third party with whom the Company may enter into any agreement for or\ncomplete any transaction, shall have any liability to the Undersigned or its Representatives arising out of or relating to such transaction.\nExcept as permitted herein, the Undersigned agrees not to initiate or maintain contact (except for contacts made in connection with existing\ncommercial relationships and/or in the ordinary .course of business) with any officer, director, employee or agent of the Company with respect to the\nPotential Transaction except with the express prior permission of the Company. It is understood that, if appropriate, the Company will arrange for\ncontacts for due diligence purposes. It is further understood that all (a) communications regarding a Potential Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings and (d) discussions or questions regarding the Procedures will be submitted only\nto designated employees of Parent or the Company.\nThis agreement binds the parties only with respect to the matters expressly set forth herein, and neither party is bound or committed to\nnegotiate or consummate a Potential Transaction unless and until a definitive agreement on such matters has been executed and delivered on behalf\nof both parties by their duly authorized officers.\nIf the Undersigned determines that it does not wish to proceed with a Potential Transaction, it will promptly advise the Company of that\ndecision in writing. In such case, or if the Company so requests or a Potential Transaction is not consummated with the Undersigned, the\nUndersigned will promptly destroy all copies of Proprietary Information (and all summaries and notes of the contents or\n3\nparts thereof) in its possession or in the possession of any of its Representatives; provided, however, that the Undersigned shall return all copies of\nProprietary Information in its possession or in the possession of any of its Representatives to the Company, if the Company so requests in writing,\nwithin five (5) business days after receiving such a request from the Company. The Undersigned shall not retain any copies or other reproductions in\nwhole or in part of such material. An officer of the Undersigned shall certify the Undersigned’s compliance with this paragraph. Notwithstanding the\nforegoing, if and to the extent the Undersigned or its Representatives is required by applicable Law or its record keeping policies to retain copies of\nany Proprietary Information, the Undersigned or its Representatives, as applicable, will be permitted to keep and maintain such copies of Proprietary\nInformation subject to the terms of this agreement. Notwithstanding the return or destruction of the Proprietary Information, the Undersigned and its\nRepresentatives shall continue to be bound by their obligations hereunder.\n \n \nThe Undersigned is aware, and will advise its Representatives who are informed of the matters that are the subject of this agreement, of the\nrestrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public\ninformation from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable\nthat such other person is likely to purchase or sell such securities in reliance upon such information. The Undersigned hereby confirms that it, and its\nRepresentatives, shall take any action necessary to prevent the use of any information about the Company in a way which might violate any antitrust\nor other applicable Law.\nUnless specifically permitted in writing in advance by the Company, the Undersigned agrees that it will not, and it shall cause its\nRepresentatives not to, for a period of 12 months from the date of this agreement (and will not at any time during such period assist or encourage\nothers to): (a) acquire or agree, offer, seek or propose to acquire (or directly or indirectly request permission to do so), directly or indirectly, alone or\nin concert with any other person, by purchase or otherwise, any ownership, including, but not limited to, beneficial ownership as defined in Rule 13d\n3 under the Securities Exchange Act of 1934, as amended (the “Act”), of any of the assets, businesses or common stock of the company or any\nsecurities convertible into or exchangeable for or exercisable (whether currently or upon the occurrence of any contingency) for the purchase of\ncommon stock (collectively, “Stock”) or any other rights or options to acquire such ownership (including from any third party); (b) solicit proxies (as\nsuch terms are defined in Rule 14a 1 under the Act), whether or not such solicitation is exempt under Rule 14a 2 under the Act, with respect to any\nmatter from holders of any shares of Stock, or make any communication exempted from the definition of solicitation by Rule 14a 1(1)(2)(iv) under\nthe Act; (c) offer to enter into or may any public announcement or proposal with respect to any merger, business combination, recapitalization,\nrestructuring or other extraordinary transaction involving the Company or initiate, or induce or attempt to induce or participate with any other\nperson, entity or group (as defined in Section 13(d)(3) of the Act) to initiate, any stockholder proposal or tender offer for any Stock, any change of\ncontrol of the Company, or the convening of the stockholders’ meeting of the Company; (d) request the Company (or its directors, officers,\nemployees or agents), directly or indirectly, to amend or waive any provision of this paragraph; (e) take any action inconsistent with any of the\nforegoing subparagraphs (a) through (d); or (f) take any action with respect to any of the matters described in this paragraph that requires public\ndisclosure or disclose any intention inconsistent with the foregoing.\nIt is understood that the covenants of this agreement and the Proprietary Information disclosed are special, unique and of extraordinary\ncharacter. The Company may be irreparably harmed by a breach of this agreement, and the use of the Proprietary Information for the business\npurposes of any person other than the parties to this agreement may enable such person to compete unfairly with the Company. In the event that the\nUndersigned or its Representatives shall have knowledge of any breach of this agreement, it shall promptly give notice thereof to the Company.\nWithout prejudice to the rights and remedies otherwise available to the Company, the Undersigned agrees that the Company shall be\n4\nentitled to seek equitable relief by way of injunction, specific performance, or otherwise if the Undersigned or any of its Representatives breach or\nthreaten to breach any of the provisions of this agreement. Additionally, the Company shall not be required to post bond, any requirement of bond\nbeing specifically waived by you.\nIt is further understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate\nas a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power\nor privilege hereunder.\nThis agreement shall be governed by and construed in accordance with the laws of New York applicable to contracts executed in and to be\nperformed in that State. The parties hereto agree that the venue in any and all actions and proceedings related to this agreement shall be the state and\nfederal courts in and for New York, New York, which courts shall have exclusive personal and subject matter jurisdiction for such purpose, and the\nparties hereto irrevocably submit to the exclusive jurisdiction of such courts and irrevocably waive the defense of an inconvenient forum to the\nmaintenance of any such action or proceeding.\nThe Undersigned agrees that the rights and remedies of the Company under this agreement shall inure to the benefit of the Company, its\naffiliates, successors and assigns. The Undersigned may not assign this agreement without the prior written consent of the Company which may be\nwithheld at the Company’s sole discretion. This agreement shall be binding upon the Undersigned’s successors and permitted assigns. Unless\notherwise extended in writing by all of the parties or otherwise terminated pursuant to its terms, this agreement shall automatically terminate on the\nearlier of (i) the second anniversary of the date hereof and (ii) the execution of a definitive agreement for a Potential Transaction.\n5\nThis agreement contains the entire agreement between the Company and the Undersigned concerning the subject matter hereof, and no\nmodification of this agreement or waiver of the terms and conditions hereof shall be binding upon the Company or the Undersigned, unless approved\nin writing by both of the parties hereto. If any provision of this agreement shall, for any reason, be adjudged by any court of competent jurisdiction\nto be invalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder of this agreement but shall be confined in its\noperation to the provision of this agreement directly involved in the controversy in which such judgment shall have been rendered. This agreement\nmay be executed in counterparts, each of which shall be an original, but all of which together shall constitute one and the same agreement.\nCOMPUDYNE CORPORATION\nBy: /s/ Geoffrey Feidelberg\nName: Geoffrey Feidelberg\nTitle: CEO\n \nAccepted and Agreed\nas of the date set forth above:\nPOTOMAC KEY GROUP, LLC:\nBy: /s/ Stuart Mackiernan\nName: Stuart Mackiernan\nTitle: President\nJanuary 3, 2007\nDate	EX-99.(E)(2) 3 dex99e2.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT (e)(2)\nPRIVILEGED AND CONFIDENTIAL\nDecember 28, 2006\nPotomac Key Group, LLC\nAttn: Stuart Mackiernan\nRe: Confidentiality. Agreement\nDear Sir:\nPotomac Key Group, LLC (the "Undersigned") has requested information concerning CompuDyne Corporation and its subsidiaries (together,\nthe\n"Company.") in connection with its consideration of a potential acquisition of, or other transaction with, such Company (the "Potential\nTransaction"). As a condition to the furnishing to the Undersigned and its Representatives (as defined below) of certain information about the\nCompany, the Undersigned agrees to be bound by the terms and conditions of this agreement, and the Undersigned further agrees to inform any\nRepresentative to whom Proprietary Information (as defined below) is disclosed pursuant to the terms of this agreement of the contents of this\nagreement and the confidential nature of the Proprietary Information (as defined below).\nAll information furnished by or on behalf of the Company or its Representatives, or learned by the Undersigned during any visits to the\nCompany's facilities in connection with its consideration of a Potential Transaction, whether furnished or learned before or after the date hereof,\nwhether oral, written or electronic, and regardless of the manner or form in which it is furnished or learned, including, without limitation, all data,\nreports, interpretations, forecasts and records containing or otherwise reflecting information concerning the Company or its affiliates or the Potential\nTransaction, whether prepared by the Company or others, and any summaries, analyses or other documents created by the Undersigned, the\nCompany or others which refer to, relate to, discuss, constitute, or embody all or any portion of the Proprietary Information provided by the\nCompany or its Representatives, is referred to in this agreement as "Proprietary. Information." The term Proprietary Information shall not include,\nhowever, information which (a) is or becomes generally available to the public other than as a result of a disclosure by the Undersigned or its\nRepresentatives, (b) was in the Undersigned's possession and obtained on a non-confidential basis prior to its disclosure by the Company or its\nRepresentatives, (c) becomes available to the Undersigned on a non-confidential basis from a person other than the Company or its Representatives\nwho, to the knowledge after due inquiry of the Undersigned or its Representatives, as the case may be, is not otherwise bound by a confidentiality\nagreement with the Company or any of its Representatives, or is otherwise not under an obligation to the Company or any of its Representatives\nnot\nto transmit the information to the Undersigned or (d) is developed by the Undersigned or its Representative without reference to the Proprietary\nInformation. As used in this agreement, the term "Representatives" means, as to any person, such person's affiliates and its and their directors,\nofficers, employees, agents, advisors (including, without limitation, financial advisors, counsel and accountants) and\ncontrolling persons. As used in this agreement, the term "person" shall be broadly interpreted to include, without limitation, the media, any\ncorporation, company, partnership, other entity or individual.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by the Company or CompuDyne Corporation\n("Parent"), the Undersigned agrees that for a period of two years (a) except as required by law, rule, regulation, stock exchange rule or disclosure\nrequirement of the Securities and Exchange Commission (collectively, "Law"), or with the prior written consent of the Company, to keep all\nProprietary Information confidential and not to disclose or reveal any Proprietary Information to any person other than its Representatives who are\nactively and directly participating in the evaluation of a Potential Transaction, (b) not to use Proprietary Information for any purpose other than in\nconnection with its evaluation or negotiation of a Potential Transaction or the consummation of a Potential Transaction and (c) except as required\nby\nLaw, not to disclose to any person (other than those of its Representatives who are participating in the evaluation of a Potential Transaction) any\ninformation about a Potential Transaction, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that\ndiscussions are taking place with respect thereto, the status thereof, or the fact that Proprietary Information has been made available to the\nUndersigned or its Representatives. At a minimum, the Undersigned shall treat any Proprietary Information according to the same internal security\nprocedures and with the same degree of care regarding its secrecy and confidentiality as similar information belonging to it is treated within its\norganization. The Undersigned shall be responsible for any breach of the terms of this agreement by the Undersigned or any of its Representatives\nand agrees to take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of any Proprietary\nInformation.\nIn the event that the Undersigned or any of its Representatives is legally compelled, pursuant to a subpoena, civil investigative demand,\nregulatory demand or similar process or pursuant to applicable Law to disclose any Proprietary Information or any other information concerning the\nCompany or a Potential Transaction, the Undersigned shall seek a written opinion from reputable and experienced outside counsel that a specific\ndisclosure is necessary in order for the Undersigned not to be in violation of or default under an applicable Law or order. The Undersigned agrees\nthat, to the extent permitted by Law, it shall provide the Company with prompt notice of such request or requirement as well as a copy of such\nopinion together with the text of the proposed disclosure as far in advance of its disclosure as is reasonably practicable, and will in good faith consult\nwith and consider the suggestions of the Company concerning the nature and scope of the information the Undersigned proposes to disclose. The\nCompany may seek, at the Company's sole expense, an appropriate protective order or other remedy, may consult with the Undersigned with respect\nto the Company's taking steps to resist or narrow the scope of such request or legal process, or may waive compliance, in whole or in part, with the\nterms of this agreement. The Undersigned agrees to cooperate fully, at the Company's sole expense, with and not to oppose any action by the\nCompany to obtain a protective order or other appropriate remedy. In the event that no such protective order or other remedy is obtained, or that\nthe\nCompany waives compliance with the terms of this agreement, the Undersigned may disclose only that part of the Proprietary Information .as\nit\nis\nadvised by counsel in writing is legally required. In any such event, the Undersigned shall use its best efforts to ensure that all Proprietary\nInformation and other information that is so disclosed will be accorded confidential treatment.\nThe Undersigned agrees that, without the Company's consent, it will not for a period of one year from the date hereof directly or indirectly\nsolicit for employment or employ any person who is now an officer of the Company or its subsidiaries; provided, however, that the Undersigned\nshall not be prohibited from (a) employing any such person who contacts the Undersigned on his or her own initiative and without any direct or\nindirect solicitation by the Undersigned, (b) employing any such person in response to generalized solicitations for employees (which solicitations\nare\nnot specifically targeted at the Company's or its subsidiaries' employees) through the use of media advertisements, professional search firms or\notherwise, (c) employing any such person who has not been employed by the Company for a period of six months prior\n2\nto employment with the Undersigned, or (d) if the Undersigned enters into a Potential Transaction and a definitive agreement regarding the\nCompany, employing such persons connected with the Company in accordance with such definitive agreement and in accordance with all applicable\nlaws.\nThe Undersigned acknowledges that the Proprietary Information is and at all times remains the sole and exclusive property of the Company,\nand the Company has the exclusive right, title, and interest to such Proprietary Information. No right or license, by implication or otherwise, is\ngranted by the Company as a result of any disclosure of Proprietary Information under this agreement.\nThe Undersigned acknowledges that neither the Company nor any of its Representatives makes any express or implied representation or\nwarranty as to the accuracy or completeness of any Proprietary Information, and the Undersigned agrees that neither the Company nor any of its\nRepresentatives shall have any liability to the Undersigned or any of its Representatives relating to or arising from the use of any Proprietary\nInformation by the Undersigned or its Representatives or for any errors therein or omissions therefrom. The Undersigned also agrees that it is not\nentitled to rely on the accuracy or completeness of any Proprietary Information and that it shall be entitled to rely solely on such representations and\nwarranties regarding Proprietary Information as may be made to it in any final agreement relating to a Potential Transaction, subject to the terms and\nconditions of such agreement.\nThe Undersigned acknowledges that the Company may establish procedures and guidelines (the "Procedures") for the submission of proposals\nwith\nrespect\nto\na\nPotential\nTransaction.\nThe\nUndersigned\nacknowledges\nand\nagrees\nthat\n(a)\nthe\nCompany\nand\nits\nRepresentatives\nare\nfree\nto\nconduct\nthe process leading up to a Potential Transaction as the Company and its Representatives, in their sole discretion, determine (including, without\nlimitation, by negotiating with any third party and entering into a preliminary or definitive agreement without prior notice to the Undersigned or any\nother person); (b) the Company reserves the right, in its sole discretion, to change the Procedures relating to the consideration of a Potential\nTransaction at any time without prior notice to the Undersigned or any other person, to reject any and all proposals made by the Undersigned or any\nof its Representatives regarding a Potential Transaction, and to terminate discussions and negotiations with the Undersigned at any time and for any\nreason; and (c) neither the Company nor any of its Representatives nor any third party with whom the Company may enter into any agreement for or\ncomplete any transaction, shall have any liability to the Undersigned or its Representatives arising out of or relating to such transaction.\nExcept as permitted herein, the Undersigned agrees not to initiate or maintain contact (except for contacts made in connection with existing\ncommercial relationships and/or in the ordinary .course of business) with any officer, director, employee or agent of the Company with respect to the\nPotential Transaction except with the express prior permission of the Company. It is understood that, if appropriate, the Company will arrange for\ncontacts for due diligence purposes. It is further understood that all (a) communications regarding a Potential Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings and (d) discussions or questions regarding the Procedures will be submitted only\nto designated employees of Parent or the Company.\nThis agreement binds the parties only with respect to the matters expressly set forth herein, and neither party is bound or committed to\nnegotiate or consummate a Potential Transaction unless and until a definitive agreement on such matters has been executed and delivered on behalf\nof both parties by their duly authorized officers.\nIf the Undersigned determines that it does not wish to proceed with a Potential Transaction, it will promptly advise the Company of that\ndecision in writing. In such case, or if the Company so requests or a Potential Transaction is not consummated with the Undersigned, the\nUndersigned will promptly destroy all copies of Proprietary Information (and all summaries and notes of the contents or\n3\nparts thereof) in its possession or in the possession of any of its Representatives; provided, however, that the Undersigned shall return all copies of\nProprietary Information in its possession or in the possession of any of its Representatives to the Company, if the Company so requests in writing,\nwithin five (5) business days after receiving such a request from the Company. The Undersigned shall not retain any copies or other reproductions in\nwhole or in part of such material. An officer of the Undersigned shall certify the Undersigned's compliance with this paragraph. Notwithstanding the\nforegoing, if and to the extent the Undersigned or its Representatives is required by applicable Law or its record keeping policies to retain copies of\nany Proprietary Information, the Undersigned or its Representatives, as applicable, will be permitted to keep and maintain such copies of Proprietary\nInformation subject to the terms of this agreement. Notwithstanding the return or destruction of the Proprietary Information, the Undersigned and its\nRepresentatives shall continue to be bound by their obligations hereunder.\nThe Undersigned is aware, and will advise its Representatives who are informed of the matters that are the subject of this agreement, of the\nrestrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public\ninformation from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable\nthat such other person is likely to purchase or sell such securities in reliance upon such information. The Undersigned hereby confirms that it, and its\nRepresentatives, shall take any action necessary to prevent the use of any information about the Company in a way which might violate any antitrust\nor other applicable Law.\nUnless specifically permitted in writing in advance by the Company, the Undersigned agrees that it will not, and it shall cause its\nRepresentatives not to, for a period of 12 months from the date of this agreement (and will not at any time during such period assist or encourage\nothers to): (a) acquire or agree, offer, seek or propose to acquire (or directly or indirectly request permission to do so), directly or indirectly, alone or\nin concert with any other person, by purchase or otherwise, any ownership, including, but not limited to, beneficial ownership as defined in Rule 13d\n3 under the Securities Exchange Act of 1934, as amended (the "Act"), of any of the assets, businesses or common stock of the company or any\nsecurities convertible into or exchangeable for or exercisable (whether currently or upon the occurrence of any contingency) for the purchase of\ncommon stock (collectively, "Stock") or any other rights or options to acquire such ownership (including from any third party); (b) solicit proxies (as\nsuch terms are defined in Rule 14a 1 under the Act), whether or not such solicitation is exempt under Rule 14a 2 under the Act, with respect to any\nmatter from holders of any shares of Stock, or make any communication exempted from the definition of solicitation by Rule 14a 1(1)(2)(iv) under\nthe Act; (c) offer to enter into or may any public announcement or proposal with respect to any merger, business combination, recapitalization,\nrestructuring or other extraordinary transaction involving the Company or initiate, or induce or attempt to induce or participate with any other\nperson, entity or group (as defined in Section 13(d)(3) of the Act) to initiate, any stockholder proposal or tender offer for any Stock, any change of\ncontrol of the Company, or the convening of the stockholders' meeting of the Company; (d) request the Company (or its directors, officers,\nemployees or agents), directly or indirectly, to amend or waive any provision of this paragraph; (e) take any action inconsistent with any of the\nforegoing subparagraphs (a) through (d); or (f) take any action with respect to any of the matters described in this paragraph that requires public\ndisclosure or disclose any intention inconsistent with the foregoing.\nIt is understood that the covenants of this agreement and the Proprietary Information disclosed are special, unique and of extraordinary\ncharacter. The Company may be irreparably harmed by a breach of this agreement, and the use of the Proprietary Information for the business\npurposes of any person other than the parties to this agreement may enable such person to compete unfairly with the Company. In the event that the\nUndersigned or its Representatives shall have knowledge of any breach of this agreement, it shall promptly give notice thereof to the Company.\nWithout prejudice to the rights and remedies otherwise available to the Company, the Undersigned agrees that the Company shall be\n4\nentitled to seek equitable relief by way of injunction, specific performance, or otherwise if the Undersigned or any of its Representatives breach or\nthreaten to breach any of the provisions of this agreement. Additionally, the Company shall not be required to post bond, any requirement of bond\nbeing specifically waived by you.\nIt is further understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate\nas\na waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power\nor privilege hereunder.\nThis agreement shall be governed by and construed in accordance with the laws of New York applicable to contracts executed in and to be\nperformed in that State. The parties hereto agree that the venue in any and all actions and proceedings related to this agreement shall be the state and\nfederal courts in and for New York, New York, which courts shall have exclusive personal and subject matter jurisdiction for such purpose, and the\nparties hereto irrevocably submit to the exclusive jurisdiction of such courts and irrevocably waive the defense of an inconvenient forum to the\nmaintenance of any such action or proceeding.\nThe Undersigned agrees that the rights and remedies of the Company under this agreement shall inure to the benefit of the Company, its\naffiliates, successors and assigns. The Undersigned may not assign this agreement without the prior written consent of the Company which may be\nwithheld at the Company's sole discretion. This agreement shall be binding upon the Undersigned's successors and permitted assigns. Unless\notherwise extended in writing by all of the parties or otherwise terminated pursuant to its terms, this agreement shall automatically terminate on the\nearlier of (i) the second anniversary of the date hereof and (ii) the execution of a definitive agreement for a Potential Transaction.\n5\nThis agreement contains the entire agreement between the Company and the Undersigned concerning the subject matter hereof, and no\nmodification of this agreement or waiver of the terms and conditions hereof shall be binding upon the Company or the Undersigned, unless approved\nin writing by both of the parties hereto. If any provision of this agreement shall, for any reason, be adjudged by any court of competent jurisdiction\nto be invalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder of this agreement but shall be confined in its\noperation to the provision of this agreement directly involved in the controversy in which such judgment shall have been rendered. This agreement\nmay be executed in counterparts, each of which shall be an original, but all of which together shall constitute one and the same agreement.\nCOMPUDYNE CORPORATION\nBy: /s/ Geoffrey. Feidelberg\nName: Geoffrey. Feidelberg\nTitle: CFO\nAccepted and Agreed\nas of the date set forth above:\nPOTOMAC KEY GROUP, LLC:\nBy: /s/ Stuart Mackiernan\nName: Stuart Mackiernan\nTitle: President\nJanuary 3, 2007\nDate\n6	EX-99.(E)(2) 3 dex99e2.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT (e)(2)\nPRIVILEGED AND CONFIDENTIAL\nDecember 28, 2006\nPotomac Key Group, LLC\nAttn: Stuart Mackiernan\nRe: Confidentiality Agreement\nDear Sir:\nPotomac Key Group, LLC (the “Undersigned”) has requested information concerning CompuDyne Corporation and its subsidiaries (together,\nthe “Company”) in connection with its consideration of a potential acquisition of, or other transaction with, such Company (the “Potential\nTransaction”). As a condition to the furnishing to the Undersigned and its Representatives (as defined below) of certain information about the\nCompany, the Undersigned agrees to be bound by the terms and conditions of this agreement, and the Undersigned further agrees to inform any\nRepresentative to whom Proprietary Information (as defined below) is disclosed pursuant to the terms of this agreement of the contents of this\nagreement and the confidential nature of the Proprietary Information (as defined below).\nAll information furnished by or on behalf of the Company or its Representatives, or learned by the Undersigned during any visits to the\nCompany’s facilities in connection with its consideration of a Potential Transaction, whether furnished or learned before or after the date hereof,\nwhether oral, written or electronic, and regardless of the manner or form in which it is furnished or learned, including, without limitation, all data,\nreports, interpretations, forecasts and records containing or otherwise reflecting information concerning the Company or its affiliates or the Potential\nTransaction, whether prepared by the Company or others, and any summaries, analyses or other documents created by the Undersigned, the\nCompany or others which refer to, relate to, discuss, constitute, or embody all or any portion of the Proprietary Information provided by the\nCompany or its Representatives, is referred to in this agreement as “Proprietary Information.” The term Proprietary Information shall not include,\nhowever, information which (a) is or becomes generally available to the public other than as a result of a disclosure by the Undersigned or its\nRepresentatives, (b) was in the Undersigned’s possession and obtained on a non-confidential basis prior to its disclosure by the Company or its\nRepresentatives, (c) becomes available to the Undersigned on a non-confidential basis from a person other than the Company or its Representatives\nwho, to the knowledge after due inquiry of the Undersigned or its Representatives, as the case may be, is not otherwise bound by a confidentiality\nagreement with the Company or any of its Representatives, or is otherwise not under an obligation to the Company or any of its Representatives not\nto transmit the information to the Undersigned or (d) is developed by the Undersigned or its Representative without reference to the Proprietary\nInformation. As used in this agreement, the term “Representatives” means, as to any person, such person’s affiliates and its and their directors,\nofficers, employees, agents, advisors (including, without limitation, financial advisors, counsel and accountants) and\ncontrolling persons. As used in this agreement, the term “person” shall be broadly interpreted to include, without limitation, the media, any\ncorporation, company, partnership, other entity or individual.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by the Company or CompuDyne Corporation\n(“Parent”), the Undersigned agrees that for a period of two years (a) except as required by law, rule, regulation, stock exchange rule or disclosure\nrequirement of the Securities and Exchange Commission (collectively, “Law”), or with the prior written consent of the Company, to keep all\nProprietary Information confidential and not to disclose or reveal any Proprietary Information to any person other than its Representatives who are\nactively and directly participating in the evaluation of a Potential Transaction, (b) not to use Proprietary Information for any purpose other than in\nconnection with its evaluation or negotiation of a Potential Transaction or the consummation of a Potential Transaction and (c) except as required by\nLaw, not to disclose to any person (other than those of its Representatives who are participating in the evaluation of a Potential Transaction) any\ninformation about a Potential Transaction, or the terms or conditions or any other facts relating thereto, including, without limitation, the fact that\ndiscussions are taking place with respect thereto, the status thereof, or the fact that Proprietary Information has been made available to the\nUndersigned or its Representatives. At a minimum, the Undersigned shall treat any Proprietary Information according to the same internal security\nprocedures and with the same degree of care regarding its secrecy and confidentiality as similar information belonging to it is treated within its\norganization. The Undersigned shall be responsible for any breach of the terms of this agreement by the Undersigned or any of its Representatives\nand agrees to take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of any Proprietary\nInformation.\nIn the event that the Undersigned or any of its Representatives is legally compelled, pursuant to a subpoena, civil investigative demand,\nregulatory demand or similar process or pursuant to applicable Law to disclose any Proprietary Information or any other information concerning the\nCompany or a Potential Transaction, the Undersigned shall seek a written opinion from reputable and experienced outside counsel that a specific\ndisclosure is necessary in order for the Undersigned not to be in violation of or default under an applicable Law or order. The Undersigned agrees\nthat, to the extent permitted by Law, it shall provide the Company with prompt notice of such request or requirement as well as a copy of such\nopinion together with the text of the proposed disclosure as far in advance of its disclosure as is reasonably practicable, and will in good faith consult\nwith and consider the suggestions of the Company concerning the nature and scope of the information the Undersigned proposes to disclose. The\nCompany may seek, at the Company’s sole expense, an appropriate protective order or other remedy, may consult with the Undersigned with respect\nto the Company’s taking steps to resist or narrow the scope of such request or legal process, or may waive compliance, in whole or in part, with the\nterms of this agreement. The Undersigned agrees to cooperate fully, at the Company’s sole expense, with and not to oppose any action by the\nCompany to obtain a protective order or other appropriate remedy. In the event that no such protective order or other remedy is obtained, or that the\nCompany waives compliance with the terms of this agreement, the Undersigned may disclose only that part of the Proprietary Information .as it is\nadvised by counsel in writing is legally required. In any such event, the Undersigned shall use its best efforts to ensure that all Proprietary\nInformation and other information that is so disclosed will be accorded confidential treatment.\nThe Undersigned agrees that, without the Company’s consent, it will not for a period of one year from the date hereof directly or indirectly\nsolicit for employment or employ any person who is now an officer of the Company or its subsidiaries; provided, however, that the Undersigned\nshall not be prohibited from (a) employing any such person who contacts the Undersigned on his or her own initiative and without any direct or\nindirect solicitation by the Undersigned, (b) employing any such person in response to generalized solicitations for employees (which solicitations\nare not specifically targeted at the Company’s or its subsidiaries’ employees) through the use of media advertisements, professional search firms or\notherwise, (c) employing any such person who has not been employed by the Company for a period of six months prior\n2\nto employment with the Undersigned, or (d) if the Undersigned enters into a Potential Transaction and a definitive agreement regarding the\nCompany, employing such persons connected with the Company in accordance with such definitive agreement and in accordance with all applicable\nlaws.\nThe Undersigned acknowledges that the Proprietary Information is and at all times remains the sole and exclusive property of the Company,\nand the Company has the exclusive right, title, and interest to such Proprietary Information. No right or license, by implication or otherwise, is\ngranted by the Company as a result of any disclosure of Proprietary Information under this agreement.\nThe Undersigned acknowledges that neither the Company nor any of its Representatives makes any express or implied representation or\nwarranty as to the accuracy or completeness of any Proprietary Information, and the Undersigned agrees that neither the Company nor any of its\nRepresentatives shall have any liability to the Undersigned or any of its Representatives relating to or arising from the use of any Proprietary\nInformation by the Undersigned or its Representatives or for any errors therein or omissions therefrom. The Undersigned also agrees that it is not\nentitled to rely on the accuracy or completeness of any Proprietary Information and that it shall be entitled to rely solely on such representations and\nwarranties regarding Proprietary Information as may be made to it in any final agreement relating to a Potential Transaction, subject to the terms and\nconditions of such agreement.\nThe Undersigned acknowledges that the Company may establish procedures and guidelines (the “Procedures”) for the submission of proposals\nwith respect to a Potential Transaction. The Undersigned acknowledges and agrees that (a) the Company and its Representatives are free to conduct\nthe process leading up to a Potential Transaction as the Company and its Representatives, in their sole discretion, determine (including, without\nlimitation, by negotiating with any third party and entering into a preliminary or definitive agreement without prior notice to the Undersigned or any\nother person); (b) the Company reserves the right, in its sole discretion, to change the Procedures relating to the consideration of a Potential\nTransaction at any time without prior notice to the Undersigned or any other person, to reject any and all proposals made by the Undersigned or any\nof its Representatives regarding a Potential Transaction, and to terminate discussions and negotiations with the Undersigned at any time and for any\nreason; and (c) neither the Company nor any of its Representatives nor any third party with whom the Company may enter into any agreement for or\ncomplete any transaction, shall have any liability to the Undersigned or its Representatives arising out of or relating to such transaction.\nExcept as permitted herein, the Undersigned agrees not to initiate or maintain contact (except for contacts made in connection with existing\ncommercial relationships and/or in the ordinary .course of business) with any officer, director, employee or agent of the Company with respect to the\nPotential Transaction except with the express prior permission of the Company. It is understood that, if appropriate, the Company will arrange for\ncontacts for due diligence purposes. It is further understood that all (a) communications regarding a Potential Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings and (d) discussions or questions regarding the Procedures will be submitted only\nto designated employees of Parent or the Company.\nThis agreement binds the parties only with respect to the matters expressly set forth herein, and neither party is bound or committed to\nnegotiate or consummate a Potential Transaction unless and until a definitive agreement on such matters has been executed and delivered on behalf\nof both parties by their duly authorized officers.\nIf the Undersigned determines that it does not wish to proceed with a Potential Transaction, it will promptly advise the Company of that\ndecision in writing. In such case, or if the Company so requests or a Potential Transaction is not consummated with the Undersigned, the\nUndersigned will promptly destroy all copies of Proprietary Information (and all summaries and notes of the contents or\n3\nparts thereof) in its possession or in the possession of any of its Representatives; provided, however, that the Undersigned shall return all copies of\nProprietary Information in its possession or in the possession of any of its Representatives to the Company, if the Company so requests in writing,\nwithin five (5) business days after receiving such a request from the Company. The Undersigned shall not retain any copies or other reproductions in\nwhole or in part of such material. An officer of the Undersigned shall certify the Undersigned’s compliance with this paragraph. Notwithstanding the\nforegoing, if and to the extent the Undersigned or its Representatives is required by applicable Law or its record keeping policies to retain copies of\nany Proprietary Information, the Undersigned or its Representatives, as applicable, will be permitted to keep and maintain such copies of Proprietary\nInformation subject to the terms of this agreement. Notwithstanding the return or destruction of the Proprietary Information, the Undersigned and its\nRepresentatives shall continue to be bound by their obligations hereunder.\nThe Undersigned is aware, and will advise its Representatives who are informed of the matters that are the subject of this agreement, of the\nrestrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public\ninformation from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable\nthat such other person is likely to purchase or sell such securities in reliance upon such information. The Undersigned hereby confirms that it, and its\nRepresentatives, shall take any action necessary to prevent the use of any information about the Company in a way which might violate any antitrust\nor other applicable Law.\nUnless specifically permitted in writing in advance by the Company, the Undersigned agrees that it will not, and it shall cause its\nRepresentatives not to, for a period of 12 months from the date of this agreement (and will not at any time during such period assist or encourage\nothers to): (a) acquire or agree, offer, seek or propose to acquire (or directly or indirectly request permission to do so), directly or indirectly, alone or\nin concert with any other person, by purchase or otherwise, any ownership, including, but not limited to, beneficial ownership as defined in Rule 13d\n3 under the Securities Exchange Act of 1934, as amended (the “Act”), of any of the assets, businesses or common stock of the company or any\nsecurities convertible into or exchangeable for or exercisable (whether currently or upon the occurrence of any contingency) for the purchase of\ncommon stock (collectively, “Stock”) or any other rights or options to acquire such ownership (including from any third party); (b) solicit proxies (as\nsuch terms are defined in Rule 14a 1 under the Act), whether or not such solicitation is exempt under Rule 14a 2 under the Act, with respect to any\nmatter from holders of any shares of Stock, or make any communication exempted from the definition of solicitation by Rule 14a l(l)(2)(iv) under\nthe Act; (c) offer to enter into or may any public announcement or proposal with respect to any merger, business combination, recapitalization,\nrestructuring or other extraordinary transaction involving the Company or initiate, or induce or attempt to induce or participate with any other\nperson, entity or group (as defined in Section 13(d)(3) of the Act) to initiate, any stockholder proposal or tender offer for any Stock, any change of\ncontrol of the Company, or the convening of the stockholders’ meeting of the Company; (d) request the Company (or its directors, officers,\nemployees or agents), directly or indirectly, to amend or waive any provision of this paragraph; (e) take any action inconsistent with any of the\nforegoing subparagraphs (a) through (d); or (f) take any action with respect to any of the matters described in this paragraph that requires public\ndisclosure or disclose any intention inconsistent with the foregoing.\nIt is understood that the covenants of this agreement and the Proprietary Information disclosed are special, unique and of extraordinary\ncharacter. The Company may be irreparably harmed by a breach of this agreement, and the use of the Proprietary Information for the business\npurposes of any person other than the parties to this agreement may enable such person to compete unfairly with the Company. In the event that the\nUndersigned or its Representatives shall have knowledge of any breach of this agreement, it shall promptly give notice thereof to the Company.\nWithout prejudice to the rights and remedies otherwise available to the Company, the Undersigned agrees that the Company shall be\n4\nentitled to seek equitable relief by way of injunction, specific performance, or otherwise if the Undersigned or any of its Representatives breach or\nthreaten to breach any of the provisions of this agreement. Additionally, the Company shall not be required to post bond, any requirement of bond\nbeing specifically waived by you.\nIt is further understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate\nas a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power\nor privilege hereunder.\nThis agreement shall be governed by and construed in accordance with the laws of New York applicable to contracts executed in and to be\nperformed in that State. The parties hereto agree that the venue in any and all actions and proceedings related to this agreement shall be the state and\nfederal courts in and for New York, New York, which courts shall have exclusive personal and subject matter jurisdiction for such purpose, and the\nparties hereto irrevocably submit to the exclusive jurisdiction of such courts and irrevocably waive the defense of an inconvenient forum to the\nmaintenance of any such action or proceeding.\nThe Undersigned agrees that the rights and remedies of the Company under this agreement shall inure to the benefit of the Company, its\naffiliates, successors and assigns. The Undersigned may not assign this agreement without the prior written consent of the Company which may be\nwithheld at the Company’s sole discretion. This agreement shall be binding upon the Undersigned’s successors and permitted assigns. Unless\notherwise extended in writing by all of the parties or otherwise terminated pursuant to its terms, this agreement shall automatically terminate on the\nearlier of (i) the second anniversary of the date hereof and (ii) the execution of a definitive agreement for a Potential Transaction.\n5\nThis agreement contains the entire agreement between the Company and the Undersigned concerning the subject matter hereof, and no\nmodification of this agreement or waiver of the terms and conditions hereof shall be binding upon the Company or the Undersigned, unless approved\nin writing by both of the parties hereto. If any provision of this agreement shall, for any reason, be adjudged by any court of competent jurisdiction\nto be invalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder of this agreement but shall be confined in its\noperation to the provision of this agreement directly involved in the controversy in which such judgment shall have been rendered. This agreement\nmay be executed in counterparts, each of which shall be an original, but all of which together shall constitute one and the same agreement.\nCOMPUDYNE CORPORATION\nBy: /s/ Geoffrey Feidelberg\nName: Geoffrey Feidelberg\nTitle: CFO\nAccepted and Agreed\nas of the date set forth above:\nPOTOMAC KEY GROUP, LLC:\nBy: /s/ Stuart Mackiernan\nName: Stuart Mackiernan\nTitle: President\nJanuary 3, 2007\nDate\n6
+05f4ad5ef8f2f3998da46ad87c55e71b.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 9 d907418dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nDecember 11,2014\nFortune Brands Home & Security, Inc.\n520 Lake Cook Road\nDeerfield, IL 60015\nLadies and Gentlemen:\nIn connection with your consideration of a possible negotiated transaction with Norcraft Companies, Inc. (together with its affiliates and\nsubsidiaries, the “Company”) (such possible transaction between the Company and you or your controlled affiliates being referred to herein as\nthe “Transaction”), you have requested non-public, confidential or proprietary information about the Company including, without limitation,\ninformation in any form or medium regarding the Company’s current and prospective business, plans, forecasts, assets, liabilities, conditions,\naffairs, results, finances, strategies, products, services, technology, software, trade secrets, business processes, know-how, data, employees,\nagents, customers, licensors and vendors, (all such furnished information and all analyses, compilations, data, studies, summaries, notes,\ninterpretations, memoranda or other documents (in any form or medium) prepared by or for you or your Representatives (defined herein)\ncontaining or based in whole or in part on or reflecting any such furnished information, collectively, the “Confidential Information”). In\nconsideration of Confidential Information being furnished to you by or on behalf of the Company, you hereby agree as follows:\n1. The Confidential Information will be used by you and your directors, officers, employees, agents and advisors (collectively,\n“Representatives”) solely for the purpose of evaluating the Transaction. Unless and until the Transaction has been consummated pursuant to\ndefinitive agreement (not including any executed letter of intent, any other preliminary written agreement or any written or oral acceptance of an\noffer or bid which you submit) (the “Transaction Agreement”), no portion of the Confidential Information will be disclosed by you to any other\nperson or entity, including, without limitation, the media (whether electronic, print, broadcast or other) or any corporation, company, partnership,\nlimited liability company, joint venture or individual (each, a “Person”), except to your Representatives who need to know such information\nsolely for the purpose of evaluating the Transaction. Prior to any disclosure of Confidential Information by you to any such Representatives, you\nwill inform them of the confidential nature of the Confidential Information and direct them to abide by the terms of this agreement (the\n“Agreement”). You will use reasonable precautions, in any event no less rigorous than the precautions you take to protect your own confidential\ninformation, to safeguard the Confidential Information, and you will take reasonable measures to restrict access to the Confidential Information\nand prevent prohibited or unauthorized disclosure or use of the Confidential Information by your Representatives. You agree to be responsible for\nany breach of the terms of this Agreement by your Representatives. You hereby acknowledge and agree that all Confidential Information shall be\nand remain the exclusive property of the Company (or, as applicable, third Persons conducting business with the Company). You agree not to\nreproduce or\n-1-\ncopy by any means any Confidential Information without the Company’s prior written consent, except as reasonably required for distribution to\nyour Representatives for purposes of evaluating the Transaction and not to reverse engineer or seek to reveal the trade secrets or know-how\nunderlying any software, technology or other embodiment of intellectual property within the Confidential Information. You represent and warrant\nthat in considering the Transaction and reviewing the Confidential Information, you are acting solely on your own behalf and not as part of a\ngroup with any unaffiliated parties. For the avoidance of doubt, your Representatives shall not, without the prior written consent of the Company,\ninclude any Person that is a customer, supplier or competitor of the Company, or any Person that serves as a director, officer, manager, member,\nagent or employee of any of the foregoing.\n2. You further agree that neither you nor any of your Representatives acting on your behalf will, without the prior written consent of the\nCompany, directly or indirectly, communicate regarding the Transaction with any potential co-investors or other sources of equity financing nor\ndisclose Confidential Information to any such Person. You hereby acknowledge and agree that the Company may grant or withhold its consent to\nany such communications with potential co-investors or other sources of equity financing for any reason (or for no reason) and the Company\nmay condition any such consent on such Persons’ prior entry into a written confidentiality agreement in form and substance satisfactory to the\nCompany. Without the prior written consent of the Company, you agree that you will not, and will cause your Representatives acting on your\nbehalf not to, enter into any agreement, arrangement or other understanding, whether written or oral, that expressly limits, restricts, restrains or\notherwise impairs in any manner, directly or indirectly, the ability of any debt or equity financing source or other Person from providing\nfinancing or other assistance to any other Person (including the Company) with respect to the Transaction or any potential alternative thereto.\n3. If you or any of your Representatives becomes legally required (by deposition, notice, discovery request, subpoena, civil investigative\ndemand or similar process, each a “Request”) to disclose any Confidential Information, you shall, promptly after receipt of such Request, provide\nwritten notice and a copy thereof to the Company, and you shall use reasonable efforts at the Company’s sole expense to provide the Company an\nopportunity to seek a protective order or other appropriate remedy (and you agree to cooperate with the Company at the Company’s sole expense\nin connection with seeking such order or other remedy). If such protective order or other remedy is not obtained, you agree to furnish, and permit\nyour Representatives to furnish, only that portion of the Confidential Information which you determine, after consultation with counsel, is legally\nrequired and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.\n4. The term “Confidential Information” does not include any information that at the time of disclosure to you or thereafter (a) was already\nin your possession at the time of disclosure, (b) is generally known by the public (other than as a result of its disclosure directly or indirectly by\nyou or your Representatives) or (c) is available to you on a non-confidential basis from a source other than the Company or its advisors, provided\nthat such source is not and was not bound by a confidentiality agreement or other legal duty of confidentiality regarding the Company or the\nConfidential Information.\n-2-\n5. Upon written request by the Company, you will promptly destroy or return to the Company all copies (in any form or medium) of the\nConfidential Information in your possession or control or in the possession or control of your Representatives. Notwithstanding the foregoing,\nyou and your Representatives (i) may retain copies of that portion of the Confidential Information that is required to be retained by applicable\nlaw or in accordance with your and your Representatives’ bona fide internal document retention policies that have been implemented in order to\ncomply with applicable law, regulation, professional standards or your and their reasonable existing business practice, and (ii) shall not be\nobligated to destroy electronically stored copies of the Confidential Information to the extent such destruction is not reasonably practicable;\nprovided that in all cases involving such retention or non-destruction of Confidential Information you shall maintain the confidentiality of such\nConfidential Information and you and your Representatives shall not disclose or use such Confidential Information (other than to the extent\nexplicitly permitted under this Agreement) for as long as this Agreement shall remain in effect.\n6. Without the prior written consent of the Company, you will not, and will direct your Representatives not to, disclose to any Person\n(a) the existence of any communications concerning the Transaction, or the existence of this Agreement or its provisions, (b) that you have\nrequested or received Confidential Information from the Company or its advisors, or (c) the possible occurrence of the Transaction or any of the\nterms, conditions or other facts about the Transaction, including the current status.\n7. Until the earlier of: (a) the consummation of the Transaction pursuant to a Transaction Agreement or (b) one year from the date of this\nAgreement, you agree that: (x) except with the express written consent of the Company’s designated representative, you will not, and you will\nnot knowingly encourage or participate with any other Person to, directly or indirectly, initiate or maintain contact (except for those contacts\nmade in the ordinary course of business) with any officer, director, employee, customer or supplier of the Company regarding the Confidential\nInformation or the Transaction; and (y) except with the express written consent of the Company, you will not, and you will not knowingly\nencourage or participate with any other Person to, directly or indirectly solicit or offer to hire or hire (i) any director or any of the following top 5\nofficers of the Company: Chief Executive Officer, Chief Financial Officer, President of Mid Continent, President of Starmark or President of\nUltraCraft, or (ii) any other employee of the Company whom you first come to know through evaluation and negotiations of the Transaction.\nUnless otherwise agreed to in writing by the Company, all communications regarding the Transaction, requests for additional information,\nrequests for facility tours or management meetings and discussions or questions regarding procedures, will be submitted or directed to the\nCompany’s designated representative.\n8. You hereby acknowledge and agree that you are aware, and that you will advise each of your Representatives to whom Confidential\nInformation is provided, that the U.S. securities laws prohibit any Person who has material non-public information concerning the matters which\nare the subject of this Agreement from purchasing or selling securities of the Company, or from communicating such material non-public\ninformation to any other Person under circumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such\nsecurities.\n-3-\n9. You represent and warrant to the Company that, as of the date hereof, you do not beneficially own any securities of the Company. You\nagree that, for the period beginning on the date hereof and ending on the earlier of (A) the one-year anniversary hereof or (B) the date on which\nthe Company or the Security Holders (defined below) enter into a definitive agreement with a third party to engage in, or make a public\nannouncement with respect to, the acquisition, whether by stock or asset purchase, merger, tender offer or exchange offer or otherwise, of all or\nsubstantially all of the assets of the Company or a majority of the outstanding voting securities of the Company (the “Standstill Period”), neither\nyou nor your Representatives (acting on your behalf or at your direction) will, directly or indirectly, without the prior written consent of the board\nof directors of the Company, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any\nsecurities or assets of the Company, any warrant or option to purchase such securities or assets, any security convertible into any such securities,\nor any other right to acquire such securities or assets (other than purchases of products or services in the ordinary course of business), (ii) enter,\nagree to enter, or propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other\nextraordinary transaction involving the Company, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to\nadvise or influence any Person with respect to the voting of, any voting securities of the Company, (iv) form, join or in any way participate in a\n“group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any\nvoting securities of the Company, (v) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the board of\ndirectors or shareholders of the Company, (vi) otherwise act, alone or in concert with others, to seek to control or influence the management or\nthe policies of the Company, (vii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, any of the foregoing, or\n(viii) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other Persons in connection\nwith any of the foregoing. You further agree that during the Standstill Period neither you nor your Representatives will, directly or indirectly,\nwithout the prior written consent of the board of directors of the Company, (x) make any request directly or indirectly, to amend or waive any\nprovision of this paragraph (including this sentence), or (y) take any action that could reasonably be expected to require the Company to make a\npublic announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The\nforegoing shall not prohibit you from making a confidential proposal to the Company or any members of its Board of Directors, which it or he\nmay accept or reject in its or his sole discretion, so long as any such proposal is made in a manner that does not require public disclosure thereof\nby any person.\n10. You understand, acknowledge and agree that neither the Company nor any other Person who provides Confidential Information to you\npursuant to this Agreement (collectively, the “Disclosing Parties”) is making any representation or warranty, expressed or implied, as to the\naccuracy or completeness of the Confidential Information or of any other information concerning the Company, the Transaction, or any other\nmatter, in each case provided or prepared by or for the Disclosing Parties, and none of the Disclosing Parties will have any liability to you or any\nother Person resulting from or relating to your or their use of the Confidential Information or any of such other information. You agree that in\ndetermining to enter into and perform this Agreement you are not relying upon any representation, statement, promise, commitment,\nunderstanding or agreement made by or on behalf of the Company or any other Person, except as\n-4-\nexpressly set forth herein. Only those representations or warranties that are expressly set forth in a Transaction Agreement when, as and if duly\nexecuted and delivered by all parties thereto, and subject to such limitations and restrictions as may be expressly agreed in such Transaction\nAgreement, shall have any legal effect.\n11. You understand and agree that (other than this Agreement) no contract, agreement or understanding with respect to the Transaction\nexists nor shall one be deemed to exist between you and the Company unless and until a Transaction Agreement has been duly executed and\ndelivered by all parties thereto. You also agree that neither the Company nor any Disclosing Party will have any obligation of any kind\nwhatsoever with respect to the Transaction by virtue of this Agreement or any other written or oral expression with respect to the Transaction\nexcept (i) in the case of this Agreement, for the matters specifically agreed to herein and (ii) upon execution of the Transaction Agreement to the\nextent expressly set forth therein. You further understand and agree that:\n(a) the Company shall have sole discretion in determining the process for the Transaction;\n(b) any procedures relating to the Transaction may be changed at any time without notice to you or any other Person; and\n(c) the Company may postpone or abandon its efforts to engage in the Transaction at any time without any notice to you.\n12. You understand, acknowledge and agree that any disclosure, use or misappropriation of any Confidential Information in violation of\nthis Agreement would cause the Company irreparable harm, the amount (but not the certainty) of which would be difficult to ascertain. You agree\nthat the Company, in addition to any other remedies available to it, shall be entitled to seek equitable relief, including temporary restraining\norders and preliminary and permanent injunctions, in the event of a breach by you or your Representatives (either actual or threatened) of this\nAgreement (without necessity of posting any bond or other security or proving special damages) and that you shall not oppose the granting of\nsuch relief.\n13. To the extent that any Confidential Information includes materials or other information that may be subject to attorney-client privilege,\nwork product doctrine or any other applicable privilege or doctrine providing immunity from disclosure, you acknowledge and agree that you\nand the Company have a commonality of legal interest with respect to such matters, and agree that it is your mutual desire, intention and\nunderstanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such\nmaterials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine providing immunity from disclosure. Accordingly, all\nConfidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or\ndoctrine providing immunity from disclosure shall remain entitled to protection thereunder and shall be entitled to protection under the common\ninterest doctrine, and you agree to take all commercially reasonable measures to preserve, to the fullest extent possible, the applicability of all\nsuch privileges and doctrines, and you further agree that you will cooperate with the Company in efforts by it to preserve, to the fullest extent\npossible, the applicability of all such privileges and doctrines.\n-5-\n14. No provision of this Agreement can be waived or amended except by written consent of the Company. It is understood and agreed that\nno failure or delay by the Company in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or\npartial exercise thereof preclude any other or further exercise thereof.\n15. You understand that the Company and the Company’s security holders (the “Security Holders”) are represented in connection with the\nTransaction by Ropes & Gray LLP (“R&G”). If at any time you are or have been a client of R&G, you hereby irrevocably waive any conflicts\nthat may arise in connection with R&G representing the Company and the Security Holders in connection with the Transaction, and any conflicts\nthat may arise in connection with R&G representing the Security Holders after the closing of the Transaction (the “Closing”), including without\nlimitation in connection with any negotiation, arbitration, mediation, litigation or other proceeding in any way related to a dispute with you\nand/or the Company, on the one hand, and the Security Holders, on the other hand, even if your and the Company’s interests then would be\ndirectly adverse to those of the Security Holders in connection therewith. You represent and warrant that you have consulted with independent\ncounsel of your choosing before agreeing to this Agreement, including to this Section 15 and the waivers contained therein, and that such counsel\nhave explained to, and that you understand, the potential consequences of your agreement\n16. This Agreement is for the benefit of the Company and the other Disclosing Parties (and with respect to Section 15, R&G and the other\ncounsel referred to therein), and shall bind and inure to the benefit of the parties and their respective successors and assigns (provided, however,\nthat you may not assign this Agreement or any rights or obligations hereunder, without the Company’s prior written consent, failing which such\npurported assignment shall be null and void).\n17. This Agreement, and any action arising out of or relating to this Agreement, its negotiation, validity, performance or breach, or the\ntransactions contemplated hereby or the rights and obligations of the parties (whether sounding in contract, tort, statute or otherwise, and whether\nat law or in equity), shall be governed by and construed and enforced in accordance with the domestic substantive laws of the State of Delaware,\nwithout giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction. You\nand the Company each irrevocably: (i) consent to the exclusive jurisdiction and venue of the state and federal courts sitting in Wilmington,\nDelaware in any such action, (ii) agree that such courts are convenient forums for that purpose, and shall not seek to dismiss, transfer or remove\nsuch action to any other forum on grounds of lack of personal jurisdiction, improper venue, forum non conveniens or any similar doctrine,\n(iii) consent to service of process in any such action effected by delivery via nationally recognized overnight courier service, addressed to you or\nthe Company, as applicable, at such party’s address set forth above, in addition to any other method of service provided by applicable law,\n(iv) agree that such service of process shall be valid and (v) agree that such action shall be commenced and determined only in such courts.\nNotwithstanding the foregoing, actions or proceedings may be commenced in any jurisdiction to enforce or satisfy orders or judgments of such\ncourts.\n-6-\n18. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, THE PARTIES HEREBY WAIVE,\nAND AGREE THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL\nBY JURY IN ANY ACTION DESCRIBED IN SECTION 17 HEREOF. THE PARTIES AGREE THAT EITHER OF THEM MAY FILE A\nCOPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-\nFOR AGREEMENT BETWEEN THE PARTIES IRREVOCABLY TO WAIVE THEIR RIGHT TO TRIAL BY JURY IN ANY SUCH ACTION\nAND THAT ANY SUCH ACTION WILL INSTEAD BE TRIED BY A JUDGE SITTING WITHOUT A JURY.\n19. Your obligations under this Agreement, except: (i) the obligations with respect to any Confidential Information retained pursuant to\nSection 5 hereof, and (ii) as described in Sections 13, 14, 15, 16, 17 and 18 hereof and this Section 19, shall terminate two (2) years from the date\nhereof provided that such termination shall not relieve you of liability for breach by you or your Representatives prior to termination.\n20. Each party represents and warrants that this Agreement has been duly authorized, executed and delivered by it and constitutes a legal,\nvalid and binding obligation enforceable against such party in accordance with its terms.\n21. This Agreement constitutes the entire agreement of the parties with respect to its subject matter and supersedes any prior or\ncontemporaneous oral or written agreements or understandings with respect thereto.\n[Signature page follows]\n-7-\nThis Agreement is being delivered to you in duplicate. Kindly execute and return one copy of this Agreement, which will constitute our\nagreement with respect to the subject matter of this Agreement.\nVery truly yours,\nNorcraft Companies, Inc.\nBy: /s/ Mark Buller\nName: Mark Buller\nTitle: CHAIRMAN & CEO\nAccepted and Agreed To:\nFortune Brands Home & Security, Inc.\nBy: /s/ Robert K. Biggart\nName: Robert K. Biggart\nTitle: Senior Vice President, General Counsel &\nSecretary\n-8-	EX-99.(D)(2) 9 d907418dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nDecember 11,2014\nFortune Brands Home & Security, Inc.\n520 Lake Cook Road\nDeerfield, IL 60015\nLadies and Gentlemen:\nIn connection with your consideration of a possible negotiated transaction with Norcraft Companies, Inc. (together with its affiliates and\nsubsidiaries, the “Company”) (such possible transaction between the Company and you or your controlled affiliates being referred to herein as\nthe “Transaction”), you have requested non-public, confidential or proprietary information about the Company including, without limitation,\ninformation in any form or medium regarding the Company’s current and prospective business, plans, forecasts, assets, liabilities, conditions,\naffairs, results, finances, strategies, products, services, technology, software, trade secrets, business processes, know-how, data, employees,\nagents, customers, licensors and vendors, (all such furnished information and all analyses, compilations, data, studies, summaries, notes,\ninterpretations, memoranda or other documents (in any form or medium) prepared by or for you or your Representatives (defined herein)\ncontaining or based in whole or in part on or reflecting any such furnished information, collectively, the “Confidential Information”). In\nconsideration of Confidential Information being furnished to you by or on behalf of the Company, you hereby agree as follows:\n1. The Confidential Information will be used by you and your directors, officers, employees, agents and advisors (collectively,\n“Representatives”) solely for the purpose of evaluating the Transaction. Unless and until the Transaction has been consummated pursuant to\ndefinitive agreement (not including any executed letter of intent, any other preliminary written agreement or any written or oral acceptance of an\noffer or bid which you submit) (the “Transaction Agreement”), no portion of the Confidential Information will be disclosed by you to any other\nperson or entity, including, without limitation, the media (whether electronic, print, broadcast or other) or any corporation, company, partnership,\nlimited liability company, joint venture or individual (each, a “Person”), except to your Representatives who need to know such information\nsolely for the purpose of evaluating the Transaction. Prior to any disclosure of Confidential Information by you to any such Representatives, you\nwill inform them of the confidential nature of the Confidential Information and direct them to abide by the terms of this agreement (the\n“Agreement”). You will use reasonable precautions, in any event no less rigorous than the precautions you take to protect your own confidential\ninformation, to safeguard the Confidential Information, and you will take reasonable measures to restrict access to the Confidential Information\nand prevent prohibited or unauthorized disclosure or use of the Confidential Information by your Representatives. You agree to be responsible for\nany breach of the terms of this Agreement by your Representatives. You hereby acknowledge and agree that all Confidential Information shall be\nand remain the exclusive property of the Company (or, as applicable, third Persons conducting business with the Company). You agree not to\nreproduce or\n \n-1-\ncopy by any means any Confidential Information without the Company’s prior written consent, except as reasonably required for distribution to\nyour Representatives for purposes of evaluating the Transaction and not to reverse engineer or seek to reveal the trade secrets or know-how\nunderlying any software, technology or other embodiment of intellectual property within the Confidential Information. You represent and warrant\nthat in considering the Transaction and reviewing the Confidential Information, you are acting solely on your own behalf and not as part of a\ngroup with any unaffiliated parties. For the avoidance of doubt, your Representatives shall not, without the prior written consent of the Company,\ninclude any Person that is a customer, supplier or competitor of the Company, or any Person that serves as a director, officer, manager, member,\nagent or employee of any of the foregoing.\n2. You further agree that neither you nor any of your Representatives acting on your behalf will, without the prior written consent of the\nCompany, directly or indirectly, communicate regarding the Transaction with any potential co-investors or other sources of equity financing nor\ndisclose Confidential Information to any such Person. You hereby acknowledge and agree that the Company may grant or withhold its consent to\nany such communications with potential co-investors or other sources of equity financing for any reason (or for no reason) and the Company\nmay condition any such consent on such Persons’ prior entry into a written confidentiality agreement in form and substance satisfactory to the\nCompany. Without the prior written consent of the Company, you agree that you will not, and will cause your Representatives acting on your\nbehalf not to, enter into any agreement, arrangement or other understanding, whether written or oral, that expressly limits, restricts, restrains or\notherwise impairs in any manner, directly or indirectly, the ability of any debt or equity financing source or other Person from providing\nfinancing or other assistance to any other Person (including the Company) with respect to the Transaction or any potential alternative thereto.\n3. If you or any of your Representatives becomes legally required (by deposition, notice, discovery request, subpoena, civil investigative\ndemand or similar process, each a “Request”) to disclose any Confidential Information, you shall, promptly after receipt of such Request, provide\nwritten notice and a copy thereof to the Company, and you shall use reasonable efforts at the Company’s sole expense to provide the Company an\nopportunity to seek a protective order or other appropriate remedy (and you agree to cooperate with the Company at the Company’s sole expense\nin connection with seeking such order or other remedy). If such protective order or other remedy is not obtained, you agree to furnish, and permit\nyour Representatives to furnish, only that portion of the Confidential Information which you determine, after consultation with counsel, is legally\nrequired and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.\n4. The term “Confidential Information” does not include any information that at the time of disclosure to you or thereafter (a) was already\nin your possession at the time of disclosure, (b) is generally known by the public (other than as a result of its disclosure directly or indirectly by\nyou or your Representatives) or (c) is available to you on a non-confidential basis from a source other than the Company or its advisors, provided\nthat such source is not and was not bound by a confidentiality agreement or other legal duty of confidentiality regarding the Company or the\nConfidential Information.\n-\n5. Upon written request by the Company, you will promptly destroy or return to the Company all copies (in any form or medium) of the\nConfidential Information in your possession or control or in the possession or control of your Representatives. Notwithstanding the foregoing,\nyou and your Representatives (i) may retain copies of that portion of the Confidential Information that is required to be retained by applicable\nlaw or in accordance with your and your Representatives’ bona fide internal document retention policies that have been implemented in order to\ncomply with applicable law, regulation, professional standards or your and their reasonable existing business practice, and (ii) shall not be\nobligated to destroy electronically stored copies of the Confidential Information to the extent such destruction is not reasonably practicable;\nprovided that in all cases involving such retention or non-destruction of Confidential Information you shall maintain the confidentiality of such\nConfidential Information and you and your Representatives shall not disclose or use such Confidential Information (other than to the extent\nexplicitly permitted under this Agreement) for as long as this Agreement shall remain in effect.\n6. Without the prior written consent of the Company, you will not, and will direct your Representatives not to, disclose to any Person\n(a) the existence of any communications concerning the Transaction, or the existence of this Agreement or its provisions, (b) that you have\nrequested or received Confidential Information from the Company or its advisors, or (c) the possible occurrence of the Transaction or any of the\nterms, conditions or other facts about the Transaction, including the current status.\n7. Until the earlier of: (a) the consummation of the Transaction pursuant to a Transaction Agreement or (b) one year from the date of this\nAgreement, you agree that: (x) except with the express written consent of the Company’s designated representative, you will not, and you will\nnot knowingly encourage or participate with any other Person to, directly or indirectly, initiate or maintain contact (except for those contacts\nmade in the ordinary course of business) with any officer, director, employee, customer or supplier of the Company regarding the Confidential\nInformation or the Transaction; and (y) except with the express written consent of the Company, you will not, and you will not knowingly\nencourage or participate with any other Person to, directly or indirectly solicit or offer to hire or hire (i) any director or any of the following top 5\nofficers of the Company: Chief Executive Officer, Chief Financial Officer, President of Mid Continent, President of Starmark or President of\nUltraCraft, or (ii) any other employee of the Company whom you first come to know through evaluation and negotiations of the Transaction.\nUnless otherwise agreed to in writing by the Company, all communications regarding the Transaction, requests for additional information,\nrequests for facility tours or management meetings and discussions or questions regarding procedures, will be submitted or directed to the\nCompany’s designated representative.\n8. You hereby acknowledge and agree that you are aware, and that you will advise each of your Representatives to whom Confidential\nInformation is provided, that the U.S. securities laws prohibit any Person who has material non-public information concerning the matters which\nare the subject of this Agreement from purchasing or selling securities of the Company, or from communicating such material non-public\ninformation to any other Person under circumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such\nsecurities.\n_3-\n9. You represent and warrant to the Company that, as of the date hereof, you do not beneficially own any securities of the Company. You\nagree that, for the period beginning on the date hereof and ending on the earlier of (A) the one-year anniversary hereof or (B) the date on which\nthe Company or the Security Holders (defined below) enter into a definitive agreement with a third party to engage in, or make a public\nannouncement with respect to, the acquisition, whether by stock or asset purchase, merger, tender offer or exchange offer or otherwise, of all or\nsubstantially all of the assets of the Company or a majority of the outstanding voting securities of the Company (the “Standstill Period”), neither\nyou nor your Representatives (acting on your behalf or at your direction) will, directly or indirectly, without the prior written consent of the board\nof directors of the Company, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any\nsecurities or assets of the Company, any warrant or option to purchase such securities or assets, any security convertible into any such securities,\nor any other right to acquire such securities or assets (other than purchases of products or services in the ordinary course of business), (ii) enter,\nagree to enter, or propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other\nextraordinary transaction involving the Company, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to\nadvise or influence any Person with respect to the voting of, any voting securities of the Company, (iv) form, join or in any way participate in a\n“group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any\nvoting securities of the Company, (v) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the board of\ndirectors or shareholders of the Company, (vi) otherwise act, alone or in concert with others, to seek to control or influence the management or\nthe policies of the Company, (vii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, any of the foregoing, or\n(viii) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other Persons in connection\nwith any of the foregoing. You further agree that during the Standstill Period neither you nor your Representatives will, directly or indirectly,\nwithout the prior written consent of the board of directors of the Company, (x) make any request directly or indirectly, to amend or waive any\nprovision of this paragraph (including this sentence), or (y) take any action that could reasonably be expected to require the Company to make a\npublic announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The\nforegoing shall not prohibit you from making a confidential proposal to the Company or any members of its Board of Directors, which it or he\nmay accept or reject in its or his sole discretion, so long as any such proposal is made in a manner that does not require public disclosure thereof\nby any person.\n10. You understand, acknowledge and agree that neither the Company nor any other Person who provides Confidential Information to you\npursuant to this Agreement (collectively, the “Disclosing Parties”) is making any representation or warranty, expressed or implied, as to the\naccuracy or completeness of the Confidential Information or of any other information concerning the Company, the Transaction, or any other\nmatter, in each case provided or prepared by or for the Disclosing Parties, and none of the Disclosing Parties will have any liability to you or any\nother Person resulting from or relating to your or their use of the Confidential Information or any of such other information. You agree that in\ndetermining to enter into and perform this Agreement you are not relying upon any representation, statement, promise, commitment,\nunderstanding or agreement made by or on behalf of the Company or any other Person, except as\n \n4-\nexpressly set forth herein. Only those representations or warranties that are expressly set forth in a Transaction Agreement when, as and if duly\nexecuted and delivered by all parties thereto, and subject to such limitations and restrictions as may be expressly agreed in such Transaction\nAgreement, shall have any legal effect.\n11. You understand and agree that (other than this Agreement) no contract, agreement or understanding with respect to the Transaction\nexists nor shall one be deemed to exist between you and the Company unless and until a Transaction Agreement has been duly executed and\ndelivered by all parties thereto. You also agree that neither the Company nor any Disclosing Party will have any obligation of any kind\nwhatsoever with respect to the Transaction by virtue of this Agreement or any other written or oral expression with respect to the Transaction\nexcept (i) in the case of this Agreement, for the matters specifically agreed to herein and (ii) upon execution of the Transaction Agreement to the\nextent expressly set forth therein. You further understand and agree that:\n(a) the Company shall have sole discretion in determining the process for the Transaction;\n(b) any procedures relating to the Transaction may be changed at any time without notice to you or any other Person; and\n(c) the Company may postpone or abandon its efforts to engage in the Transaction at any time without any notice to you.\n12. You understand, acknowledge and agree that any disclosure, use or misappropriation of any Confidential Information in violation of\nthis Agreement would cause the Company irreparable harm, the amount (but not the certainty) of which would be difficult to ascertain. You agree\nthat the Company, in addition to any other remedies available to it, shall be entitled to seek equitable relief, including temporary restraining\norders and preliminary and permanent injunctions, in the event of a breach by you or your Representatives (either actual or threatened) of this\nAgreement (without necessity of posting any bond or other security or proving special damages) and that you shall not oppose the granting of\nsuch relief.\n13. To the extent that any Confidential Information includes materials or other information that may be subject to attorney-client privilege,\nwork product doctrine or any other applicable privilege or doctrine providing immunity from disclosure, you acknowledge and agree that you\nand the Company have a commonality of legal interest with respect to such matters, and agree that it is your mutual desire, intention and\nunderstanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such\nmaterials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine providing immunity from disclosure. Accordingly, all\nConfidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or\ndoctrine providing immunity from disclosure shall remain entitled to protection thereunder and shall be entitled to protection under the common\ninterest doctrine, and you agree to take all commercially reasonable measures to preserve, to the fullest extent possible, the applicability of all\nsuch privileges and doctrines, and you further agree that you will cooperate with the Company in efforts by it to preserve, to the fullest extent\npossible, the applicability of all such privileges and doctrines.\n-5-\n14. No provision of this Agreement can be waived or amended except by written consent of the Company. It is understood and agreed that\nno failure or delay by the Company in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or\npartial exercise thereof preclude any other or further exercise thereof.\n15. You understand that the Company and the Company’s security holders (the “Security Holders) are represented in connection with the\nTransaction by Ropes & Gray LLP (“R&G”). If at any time you are or have been a client of R&G, you hereby irrevocably waive any conflicts\nthat may arise in connection with R&G representing the Company and the Security Holders in connection with the Transaction, and any conflicts\nthat may arise in connection with R&G representing the Security Holders after the closing of the Transaction (the “Closing”), including without\nlimitation in connection with any negotiation, arbitration, mediation, litigation or other proceeding in any way related to a dispute with you\nand/or the Company, on the one hand, and the Security Holders, on the other hand, even if your and the Company’s interests then would be\ndirectly adverse to those of the Security Holders in connection therewith. You represent and warrant that you have consulted with independent\ncounsel of your choosing before agreeing to this Agreement, including to this Section 15 and the waivers contained therein, and that such counsel\nhave explained to, and that you understand, the potential consequences of your agreement\n \n \n16. This Agreement is for the benefit of the Company and the other Disclosing Parties (and with respect to Section 15, R&G and the other\ncounsel referred to therein), and shall bind and inure to the benefit of the parties and their respective successors and assigns (provided, however,\nthat you may not assign this Agreement or any rights or obligations hereunder, without the Company’s prior written consent, failing which such\npurported assignment shall be null and void).\n17. This Agreement, and any action arising out of or relating to this Agreement, its negotiation, validity, performance or breach, or the\ntransactions contemplated hereby or the rights and obligations of the parties (whether sounding in contract, tort, statute or otherwise, and whether\nat law or in equity), shall be governed by and construed and enforced in accordance with the domestic substantive laws of the State of Delaware,\nwithout giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction. You\nand the Company each irrevocably: (i) consent to the exclusive jurisdiction and venue of the state and federal courts sitting in Wilmington,\nDelaware in any such action, (ii) agree that such courts are convenient forums for that purpose, and shall not seek to dismiss, transfer or remove\nsuch action to any other forum on grounds of lack of personal jurisdiction, improper venue, forum non conveniens or any similar doctrine,\n(iii) consent to service of process in any such action effected by delivery via nationally recognized overnight courier service, addressed to you or\nthe Company, as applicable, at such party’s address set forth above, in addition to any other method of service provided by applicable law,\n(iv) agree that such service of process shall be valid and (v) agree that such action shall be commenced and determined only in such courts.\nNotwithstanding the foregoing, actions or proceedings may be commenced in any jurisdiction to enforce or satisfy orders or judgments of such\ncourts.\n-6-\n18. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, THE PARTIES HEREBY WAIVE,\nAND AGREE THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL\nBY JURY IN ANY ACTION DESCRIBED IN SECTION 17 HEREOF. THE PARTIES AGREE THAT EITHER OF THEM MAY FILE A\nCOPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-\nFOR AGREEMENT BETWEEN THE PARTIES IRREVOCABLY TO WAIVE THEIR RIGHT TO TRIAL BY JURY IN ANY SUCH ACTION\nAND THAT ANY SUCH ACTION WILL INSTEAD BE TRIED BY A JUDGE SITTING WITHOUT A JURY.\n19. Your obligations under this Agreement, except: (i) the obligations with respect to any Confidential Information retained pursuant to\nSection 5 hereof, and (ii) as described in Sections 13, 14, 15, 16, 17 and 18 hereof and this Section 19, shall terminate two (2) years from the date\nhereof provided that such termination shall not relieve you of liability for breach by you or your Representatives prior to termination.\n20. Each party represents and warrants that this Agreement has been duly authorized, executed and delivered by it and constitutes a legal,\nvalid and binding obligation enforceable against such party in accordance with its terms.\n21. This Agreement constitutes the entire agreement of the parties with respect to its subject matter and supersedes any prior or\ncontemporaneous oral or written agreements or understandings with respect thereto.\n[Signature page follows]\n_7-\nThis Agreement is being delivered to you in duplicate. Kindly execute and return one copy of this Agreement, which will constitute our agreement with respect to the subject matter of this Agreement.\nAccepted and Agreed To:\nFortune Brands Home & Security, Inc.\nBy: /s/ Robert K. Biggart\nName: Robert K. Biggart\nTitle:  Senior Vice President, General Counsel &\nSecretary\nVery truly yours,\nNorcraft Companies, Inc.\nBy:  /s/ Mark Buller\nName: Mark Buller\nTitle: CHAIRMAN & CEO	EX-99.(D)(2) 9 d907418dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nDecember 11,2014\nFortune Brands Home & Security, Inc.\n520 Lake Cook Road\nDeerfield, IL 60015\nLadies and Gentlemen:\nIn connection with your consideration of a possible negotiated transaction with Norcraft Companies, Inc. (together with its affiliates and\nsubsidiaries, the "Company.") (such possible transaction between the Company and you or your controlled affiliates being referred to herein as\nthe "Transaction"), you have requested non-public, confidential or proprietary information about the Company including, without limitation,\ninformation in any form or medium regarding the Company's current and prospective business, plans, forecasts, assets, liabilities, conditions,\naffairs, results, finances, strategies, products, services, technology, software, trade secrets, business processes, know-how, data, employees,\nagents,\ncustomers,\nlicensors\nand\nvendors,\n(all\nsuch\nfurnished\ninformation\nand\nall\nanalyses,\ncompilations,\ndata,\nstudies,\nsummaries,\nnotes,\ninterpretations, memoranda or other documents (in any form or medium) prepared by or for you or your Representatives (defined herein)\ncontaining or based in whole or in part on or reflecting any such furnished information, collectively, the "Confidential Information"). In\nconsideration of Confidential Information being furnished to you by or on behalf of the Company, you hereby agree as follows:\n1. The Confidential Information will be used by you and your directors, officers, employees, agents and advisors (collectively,\n"Representatives") solely for the purpose of evaluating the Transaction. Unless and until the Transaction has been consummated pursuant to\ndefinitive agreement (not including any executed letter of intent, any other preliminary written agreement or any written or oral acceptance of\nan\noffer or bid which you submit) (the "Transaction Agreement"), no portion of the Confidential Information will be disclosed by you to any other\nperson or entity, including, without limitation, the media (whether electronic, print, broadcast or other) or any corporation, company, partnership,\nlimited liability company, joint venture or individual (each, a "Person"), except to your Representatives who need to know such information\nsolely for the purpose of evaluating the Transaction. Prior to any disclosure of Confidential Information by you to any such Representatives, you\nwill inform them of the confidential nature of the Confidentia Information and direct them to abide by the terms of this agreement (the\n"Agreement"). You will use reasonable precautions, in any event no less rigorous than the precautions you take to protect your own confidential\ninformation, to safeguard the Confidential Information, and you will take reasonable measures to restrict access to the Confidential Information\nand prevent prohibited or unauthorized disclosure or use of the Confidential Information by your Representatives. You agree to be responsible for\nany breach of the terms of this Agreement by your Representatives. You hereby acknowledge and agree that all Confidential Information shall be\nand remain the exclusive property of the Company (or, as applicable, third Persons conducting business with the Company). You agree not to\nreproduce or\n-1-\ncopy by any means any Confidential Information without the Company's prior written consent, except as reasonably required for distribution to\nyour Representatives for purposes of evaluating the Transaction and not to reverse engineer or seek to reveal the trade secrets or know-how\nunderlying any software, technology or other embodiment of intellectual property within the Confidential Information. You represent and warrant\nthat in considering the Transaction and reviewing the Confidential Information, you are acting solely on your own behalf and not as part of a\ngroup with any unaffiliated parties. For the avoidance of doubt, your Representatives shall not, without the prior written consent of the Company,\ninclude any Person that is a customer, supplier or competitor of the Company, or any Person that serves as a director, officer, manager, member,\nagent or employee of any of the foregoing.\n2. You further agree that neither you nor any of your Representatives acting on your behalf will, without the prior written consent of the\nCompany, directly or indirectly, communicate regarding the Transaction with any potential co-investors or other sources of equity financing nor\ndisclose Confidential Information to any such Person. You hereby acknowledge and agree that the Company may grant or withhold its consent\nto\nany such communications with potential co-investors or other sources of equity financing for any reason (or for no reason) and the Company\nmay condition any such consent on such Persons' prior entry into a written confidentiality agreement in form and substance satisfactory to the\nCompany. Without the prior written consent of the Company, you agree that you will not, and will cause your Representatives acting on your\nbehalf not to, enter into any agreement, arrangement or other understanding, whether written or oral, that expressly limits, restricts, restrains\nor\notherwise impairs in any manner, directly or indirectly, the ability of any debt or equity financing source or other Person from providing\nfinancing or other assistance to any other Person (including the Company) with respect to the Transaction or any potential alternative thereto.\n3. If you or any of your Representatives becomes legally required (by deposition, notice, discovery request, subpoena, civil investigative\ndemand\nor similar process, each a "Request") to disclose any Confidential Information, you shall, promptly after receipt of such Request, provide\nwritten notice and a copy thereof to the Company, and you shall use reasonable efforts at the Company's sole expense to provide the Company an\nopportunity to seek a protective order or other appropriate remedy (and you agree to cooperate with the Company at the Company's sole expense\nin\nconnection with seeking such order or other remedy). If such protective order or other remedy is not obtained, you agree to furnish, and permit\nyour Representatives to furnish, only that portion of the Confidential Information which you determine, after consultation with counsel, is legally\nrequired and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.\n4. The term "Confidential Information" does not include any information that at the time of disclosure to you or thereafter (a) was already\nin your possession at the time of disclosure, (b) is generally known by the public (other than as a result of its disclosure directly or indirectly by\nyou or your Representatives) or (c) is available to you on a non-confidential basis from a source other than the Company or its advisors, provided\nthat such source is not and was not bound by a confidentiality agreement or other legal duty of confidentiality regarding the Company or the\nConfidential Information.\n-2-\n5. Upon written request by the Company, you will promptly destroy or return to the Company all copies (in any form or medium) of the\nConfidential Information in your possession or control or in the possession or control of your Representatives. Notwithstanding the foregoing,\nyou and your Representatives (i) may retain copies of that portion of the Confidential Information that is required to be retained by applicable\nlaw or in accordance with your and your Representatives' bona fide internal document retention policies that have been implemented in order to\ncomply with applicable law, regulation, professional standards or your and their reasonable existing business practice, and (ii) shall not be\nobligated to destroy electronically stored copies of the Confidential Information to the extent such destruction is not reasonably practicable;\nprovided that in all cases involving such retention or non-destruction of Confidential Information you shall maintain the confidentiality of such\nConfidential Information and you and your Representatives shall not disclose or use such Confidential Information (other than to the extent\nexplicitly permitted under this Agreement) for as long as this Agreement shall remain in effect.\n6. Without the prior written consent of the Company, you will not, and will direct your Representatives not to, disclose to any Person\n(a) the existence of any communications concerning the Transaction, or the existence of this Agreement or its provisions, (b) that you have\nrequested or received Confidential Information from the Company or its advisors, or (c) the possible occurrence of the Transaction or any of the\nterms, conditions or other facts about the Transaction, including the current status.\n7. Until the earlier of: (a) the consummation of the Transaction pursuant to a Transaction Agreement or (b) one year from the date of this\nAgreement, you agree that: (x) except with the express written consent of the Company's designated representative, you will not, and\nyou\nwill\nnot knowingly encourage or participate with any other Person to, directly or indirectly, initiate or maintain contact (except for those contacts\nmade in the ordinary course of business) with any officer, director, employee, customer or supplier of the Company regarding the Confidentia\nInformation or the Transaction; and (y) except with the express written consent of the Company, you will not, and you will not knowingly\nencourage or participate with any other Person to, directly or indirectly solicit or offer to hire or hire (i) any director or any of the following top\n5\nofficers of the Company: Chief Executive Officer, Chief Financial Officer, President of Mid Continent, President of Starmark or President of\nUltraCraft, or (ii) any other employee of the Company whom you first come to know through evaluation and negotiations of the Transaction.\nUnless otherwise agreed to in writing by the Company, all communications regarding the Transaction, requests for additional information,\nrequests for facility tours or management meetings and discussions or questions regarding procedures, will be submitted or directed to the\nCompany's designated representative.\n8. You hereby acknowledge and agree that you are aware, and that you will advise each of your Representatives to whom Confidentia\nInformation is provided, that the U.S. securities laws prohibit any Person who has material non-public information concerning the matters which\nare the subject of this Agreement from purchasing or selling securities of the Company, or from communicating such material non-public\ninformation to any other Person under circumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such\nsecurities.\n-3-\n9. You represent and warrant to the Company that, as of the date hereof, you do not beneficially own any securities of the Company. You\nagree that, for the period beginning on the date hereof and ending on the earlier of (A) the one-year anniversary hereof or (B) the date on which\nthe Company or the Security Holders (defined below) enter into a definitive agreement with a third party to engage in, or make a public\nannouncement with respect to, the acquisition, whether by stock or asset purchase, merger, tender offer or exchange offer or otherwise, of all or\nsubstantially all of the assets of the Company or a majority of the outstanding voting securities of the Company (the "Standstill Period"), neither\nyou nor your Representatives (acting on your behalf or at your direction) will, directly or indirectly, without the prior written consent of the board\nof directors of the Company, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any\nsecurities or assets of the Company, any warrant or option to purchase such securities or assets, any security convertible into any such securities,\nor any other right to acquire such securities or assets (other than purchases of products or services in the ordinary course of business), (ii) enter,\nagree to enter, or propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other\nextraordinary transaction involving the Company, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to\nadvise or influence any Person with respect to the voting of, any voting securities of the Company, (iv) form, join or in any way participate\nin\na\n"group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) with respect to any\nvoting securities of the Company, (v) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the board of\ndirectors or shareholders of the Company, (vi) otherwise act, alone or in concert with others, to seek to control or influence the management or\nthe policies of the Company, (vii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, any of the foregoing,\nor\n(viii) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other Persons in connection\nwith any of the foregoing. You further agree that during the Standstill Period neither you nor your Representatives will, directly or indirectly,\nwithout the prior written consent of the board of directors of the Company, (x) make any request directly or indirectly, to amend or waive any\nprovision of this paragraph (including this sentence), or (y) take any action that could reasonably be expected to require the Company to make a\npublic announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The\nforegoing shall not prohibit you from making a confidential proposal to the Company or any members of its Board of Directors, which it or he\nmay accept or reject in its or his sole discretion, so long as any such proposal is made in a manner that does not require public disclosure thereof\nby any person.\n10. You understand, acknowledge and agree that neither the Company nor any other Person who provides Confidential Information to you\npursuant to this Agreement (collectively, the "Disclosing Parties") is making any representation or warranty, expressed or implied, as to the\naccuracy or completeness of the Confidential Information or of any other information concerning the Company, the Transaction, or any other\nmatter, in each case provided or prepared by or for the Disclosing Parties, and none of the Disclosing Parties will have any liability to you or any\nother Person resulting from or relating to your or their use of the Confidential Information or any of such other information. You agree that in\ndetermining to enter into and perform this Agreement you are not relying upon any representation, statement, promise, commitment,\nunderstanding or agreement made by or on behalf of the Company or any other Person, except as\n-4-\nexpressly set forth herein. Only those representations or warranties that are expressly set forth in a Transaction Agreement when, as and if duly\nexecuted and delivered by all parties thereto, and subject to such limitations and restrictions as may be expressly agreed in such Transaction\nAgreement, shall have any legal effect.\n11. You understand and agree that (other than this Agreement) no contract, agreement or understanding with respect to the Transaction\nexists nor shall one be deemed to exist between you and the Company unless and until a Transaction Agreement has been duly executed and\ndelivered by all parties thereto. You also agree that neither the Company nor any Disclosing Party will have any obligation of any kind\nwhatsoever with respect to the Transaction by virtue of this Agreement or any other written or oral expression with respect to the Transaction\nexcept (i) in the case of this Agreement, for the matters specifically agreed to herein and (ii) upon execution of the Transaction Agreement\nto\nthe\nextent expressly set forth therein. You further understand and agree that:\n(a) the Company shall have sole discretion in determining the process for the Transaction;\n(b) any procedures relating to the Transaction may be changed at any time without notice to you or any other Person; and\n(c) the Company may postpone or abandon its efforts to engage in the Transaction at any time without any notice to you.\n12. You understand, acknowledge and agree that any disclosure, use or misappropriation of any Confidential Information in violation of\nthis Agreement would cause the Company irreparable harm, the amount (but not the certainty) of which would be difficult to ascertain. You agree\nthat the Company, in addition to any other remedies available to it, shall be entitled to seek equitable relief, including temporary restraining\norders and preliminary and permanent injunctions, in the event of a breach by you or your Representatives (either actual or threatened) of this\nAgreement (without necessity of posting any bond or other security or proving special damages) and that you shall not oppose the granting\nof\nsuch relief.\n13. To the extent that any Confidential Information includes materials or other information that may be subject to attorney-client privilege,\nwork\nproduct\ndoctrine\nor\nany\nother\napplicable\nprivilege\nor\ndoctrine\nproviding\nimmunity\nfrom\ndisclosure,\nyou\nacknowledge\nand\nagree\nthat\nyou\nand the Company have a commonality of legal interest with respect to such matters, and agree that it is your mutual desire, intention and\nunderstanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such\nmaterials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine providing immunity from disclosure. Accordingly, all\nConfidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or\ndoctrine providing immunity from disclosure shall remain entitled to protection thereunder and shall be entitled to protection under the common\ninterest doctrine, and you agree to take all commercially reasonable measures to preserve, to the fullest extent possible, the applicability of all\nsuch privileges and doctrines, and you further agree that you will cooperate with the Company in efforts by it to preserve, to the fullest extent\npossible, the applicability of all such privileges and doctrines.\n-5-\n14. No provision of this Agreement can be waived or amended except by written consent of the Company. It is understood and agreed that\nno failure or delay by the Company in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single\nor\npartial exercise thereof preclude any other or further exercise thereof.\n15. You understand that the Company and the Company's security holders (the "Security Holders") are represented in connection with the\nTransaction by Ropes & Gray LLP ("R&G"). If at any time you are or have been a client of R&G, you hereby irrevocably waive any conflicts\nthat may arise in connection with R&G representing the Company and the Security Holders in connection with the Transaction, and any conflicts\nthat may arise in connection with R&G representing the Security Holders after the closing of the Transaction (the "Closing"), including without\nlimitation in connection with any negotiation, arbitration, mediation, litigation or other proceeding in any way related to a dispute with you\nand/or the Company, on the one hand, and the Security Holders, on the other hand, even if your and the Company's interests then would be\ndirectly adverse to those of the Security Holders in connection therewith. You represent and warrant that you have consulted with independent\ncounsel of your choosing before agreeing to this Agreement, including to this Section 15 and the waivers contained therein, and that such counsel\nhave explained to, and that you understand, the potential consequences of your agreement\n16. This Agreement is for the benefit of the Company and the other Disclosing Parties (and with respect to Section 15, R&G and the other\ncounsel referred to therein), and shall bind and inure to the benefit of the parties and their respective successors and assigns (provided, however,\nthat you may not assign this Agreement or any rights or obligations hereunder, without the Company's prior written consent, failing which\nsuch\npurported assignment shall be null and void).\n17. This Agreement, and any action arising out of or relating to this Agreement, its negotiation, validity, performance or breach, or the\ntransactions contemplated hereby or the rights and obligations of the parties (whether sounding in contract, tort, statute or otherwise, and whether\nat law or in equity), shall be governed by and construed and enforced in accordance with the domestic substantive laws of the State of Delaware,\nwithout giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction.\nYou\nand the Company each irrevocably: (i) consent to the exclusive jurisdiction and venue of the state and federal courts sitting in Wilmington,\nDelaware in any such action, (ii) agree that such courts are convenient forums for that purpose, and shall not seek to dismiss, transfer or remove\nsuch action to any other forum on grounds of lack of personal jurisdiction, improper venue, forum non conveniens or any similar doctrine,\n(iii) consent to service of process in any such action effected by delivery via nationally recognized overnight courier service, addressed to you\nor\nthe Company, as applicable, at such party's address set forth above, in addition to any other method of service provided by applicable law,\n(iv) agree that such service of process shall be valid and (v) agree that such action shall be commenced and determined only in such courts.\nNotwithstanding the foregoing, actions or proceedings may be commenced in any jurisdiction to enforce or satisfy orders or judgments of such\ncourts.\n-6-\n18. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, THE PARTIES HEREBY WAIVE,\nAND AGREE THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL\nBY JURY IN ANY ACTION DESCRIBED IN SECTION 17 HEREOF. THE PARTIES AGREE THAT EITHER OF THEM MAY FILE A\nCOPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-\nFOR AGREEMENT BETWEEN THE PARTIES IRREVOCABLY TO WAIVE THEIR RIGHT TO TRIAL BY JURY IN ANY SUCH ACTION\nAND THAT ANY SUCH ACTION WILL INSTEAD BE TRIED BY A JUDGE SITTING WITHOUT A JURY.\n19. Your obligations under this Agreement, except: (i) the obligations with respect to any Confidential Information retained pursuant to\nSection 5 hereof, and (ii) as described in Sections 13, 14, 15, 16, 17 and 18 hereof and this Section 19, shall terminate two (2) years from the date\nhereof provided that such termination shall not relieve you of liability for breach by you or your Representatives prior to termination.\n20. Each party represents and warrants that this Agreement has been duly authorized, executed and delivered by it and constitutes a legal,\nvalid and binding obligation enforceable against such party in accordance with its terms.\n21. This Agreement constitutes the entire agreement of the parties with respect to its subject matter and supersedes any prior\nor\ncontemporaneous oral or written agreements or understandings with respect thereto.\n[Signature page follows]\n-7-\nThis Agreement is being delivered to you in duplicate. Kindly execute and return one copy of this Agreement, which will constitute our\nagreement with respect to the subject matter of this Agreement\nVery truly yours,\nNorcraft Companies, Inc.\nBy:\n/s/ Mark Buller\nName: Mark Buller\nTitle: CHAIRMAN & CEO\nAccepted and Agreed To:\nFortune Brands Home & Security, Inc.\nBy:\n/s/ Robert K. Biggart\nName: Robert K. Biggart\nTitle:\nSenior Vice President, General Counsel &\nSecretary\n-8-	EX-99.(D)(2) 9 d907418dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nDecember 11,2014\nFortune Brands Home & Security, Inc.\n520 Lake Cook Road\nDeerfield, IL 60015\nLadies and Gentlemen:\nIn connection with your consideration of a possible negotiated transaction with Norcraft Companies, Inc. (together with its affiliates and\nsubsidiaries, the “Company”) (such possible transaction between the Company and you or your controlled affiliates being referred to herein as\nthe “Transaction”), you have requested non-public, confidential or proprietary information about the Company including, without limitation,\ninformation in any form or medium regarding the Company’s current and prospective business, plans, forecasts, assets, liabilities, conditions,\naffairs, results, finances, strategies, products, services, technology, software, trade secrets, business processes, know-how, data, employees,\nagents, customers, licensors and vendors, (all such furnished information and all analyses, compilations, data, studies, summaries, notes,\ninterpretations, memoranda or other documents (in any form or medium) prepared by or for you or your Representatives (defined herein)\ncontaining or based in whole or in part on or reflecting any such furnished information, collectively, the “Confidential Information”). In\nconsideration of Confidential Information being furnished to you by or on behalf of the Company, you hereby agree as follows:\n1. The Confidential Information will be used by you and your directors, officers, employees, agents and advisors (collectively,\n“Representatives”) solely for the purpose of evaluating the Transaction. Unless and until the Transaction has been consummated pursuant to\ndefinitive agreement (not including any executed letter of intent, any other preliminary written agreement or any written or oral acceptance of an\noffer or bid which you submit) (the “Transaction Agreement”), no portion of the Confidential Information will be disclosed by you to any other\nperson or entity, including, without limitation, the media (whether electronic, print, broadcast or other) or any corporation, company, partnership,\nlimited liability company, joint venture or individual (each, a “Person”), except to your Representatives who need to know such information\nsolely for the purpose of evaluating the Transaction. Prior to any disclosure of Confidential Information by you to any such Representatives, you\nwill inform them of the confidential nature of the Confidential Information and direct them to abide by the terms of this agreement (the\n“Agreement”). You will use reasonable precautions, in any event no less rigorous than the precautions you take to protect your own confidential\ninformation, to safeguard the Confidential Information, and you will take reasonable measures to restrict access to the Confidential Information\nand prevent prohibited or unauthorized disclosure or use of the Confidential Information by your Representatives. You agree to be responsible for\nany breach of the terms of this Agreement by your Representatives. You hereby acknowledge and agree that all Confidential Information shall be\nand remain the exclusive property of the Company (or, as applicable, third Persons conducting business with the Company). You agree not to\nreproduce or\n-1-\ncopy by any means any Confidential Information without the Company’s prior written consent, except as reasonably required for distribution to\nyour Representatives for purposes of evaluating the Transaction and not to reverse engineer or seek to reveal the trade secrets or know-how\nunderlying any software, technology or other embodiment of intellectual property within the Confidential Information. You represent and warrant\nthat in considering the Transaction and reviewing the Confidential Information, you are acting solely on your own behalf and not as part of a\ngroup with any unaffiliated parties. For the avoidance of doubt, your Representatives shall not, without the prior written consent of the Company,\ninclude any Person that is a customer, supplier or competitor of the Company, or any Person that serves as a director, officer, manager, member,\nagent or employee of any of the foregoing.\n2. You further agree that neither you nor any of your Representatives acting on your behalf will, without the prior written consent of the\nCompany, directly or indirectly, communicate regarding the Transaction with any potential co-investors or other sources of equity financing nor\ndisclose Confidential Information to any such Person. You hereby acknowledge and agree that the Company may grant or withhold its consent to\nany such communications with potential co-investors or other sources of equity financing for any reason (or for no reason) and the Company\nmay condition any such consent on such Persons’ prior entry into a written confidentiality agreement in form and substance satisfactory to the\nCompany. Without the prior written consent of the Company, you agree that you will not, and will cause your Representatives acting on your\nbehalf not to, enter into any agreement, arrangement or other understanding, whether written or oral, that expressly limits, restricts, restrains or\notherwise impairs in any manner, directly or indirectly, the ability of any debt or equity financing source or other Person from providing\nfinancing or other assistance to any other Person (including the Company) with respect to the Transaction or any potential alternative thereto.\n3. If you or any of your Representatives becomes legally required (by deposition, notice, discovery request, subpoena, civil investigative\ndemand or similar process, each a “Request”) to disclose any Confidential Information, you shall, promptly after receipt of such Request, provide\nwritten notice and a copy thereof to the Company, and you shall use reasonable efforts at the Company’s sole expense to provide the Company an\nopportunity to seek a protective order or other appropriate remedy (and you agree to cooperate with the Company at the Company’s sole expense\nin connection with seeking such order or other remedy). If such protective order or other remedy is not obtained, you agree to furnish, and permit\nyour Representatives to furnish, only that portion of the Confidential Information which you determine, after consultation with counsel, is legally\nrequired and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.\n4. The term “Confidential Information” does not include any information that at the time of disclosure to you or thereafter (a) was already\nin your possession at the time of disclosure, (b) is generally known by the public (other than as a result of its disclosure directly or indirectly by\nyou or your Representatives) or (c) is available to you on a non-confidential basis from a source other than the Company or its advisors, provided\nthat such source is not and was not bound by a confidentiality agreement or other legal duty of confidentiality regarding the Company or the\nConfidential Information.\n-2-\n5. Upon written request by the Company, you will promptly destroy or return to the Company all copies (in any form or medium) of the\nConfidential Information in your possession or control or in the possession or control of your Representatives. Notwithstanding the foregoing,\nyou and your Representatives (i) may retain copies of that portion of the Confidential Information that is required to be retained by applicable\nlaw or in accordance with your and your Representatives’ bona fide internal document retention policies that have been implemented in order to\ncomply with applicable law, regulation, professional standards or your and their reasonable existing business practice, and (ii) shall not be\nobligated to destroy electronically stored copies of the Confidential Information to the extent such destruction is not reasonably practicable;\nprovided that in all cases involving such retention or non-destruction of Confidential Information you shall maintain the confidentiality of such\nConfidential Information and you and your Representatives shall not disclose or use such Confidential Information (other than to the extent\nexplicitly permitted under this Agreement) for as long as this Agreement shall remain in effect.\n6. Without the prior written consent of the Company, you will not, and will direct your Representatives not to, disclose to any Person\n(a) the existence of any communications concerning the Transaction, or the existence of this Agreement or its provisions, (b) that you have\nrequested or received Confidential Information from the Company or its advisors, or (c) the possible occurrence of the Transaction or any of the\nterms, conditions or other facts about the Transaction, including the current status.\n7. Until the earlier of: (a) the consummation of the Transaction pursuant to a Transaction Agreement or (b) one year from the date of this\nAgreement, you agree that: (x) except with the express written consent of the Company’s designated representative, you will not, and you will\nnot knowingly encourage or participate with any other Person to, directly or indirectly, initiate or maintain contact (except for those contacts\nmade in the ordinary course of business) with any officer, director, employee, customer or supplier of the Company regarding the Confidential\nInformation or the Transaction; and (y) except with the express written consent of the Company, you will not, and you will not knowingly\nencourage or participate with any other Person to, directly or indirectly solicit or offer to hire or hire (i) any director or any of the following top 5\nofficers of the Company: Chief Executive Officer, Chief Financial Officer, President of Mid Continent, President of Starmark or President of\nUltraCraft, or (ii) any other employee of the Company whom you first come to know through evaluation and negotiations of the Transaction.\nUnless otherwise agreed to in writing by the Company, all communications regarding the Transaction, requests for additional information,\nrequests for facility tours or management meetings and discussions or questions regarding procedures, will be submitted or directed to the\nCompany’s designated representative.\n8. You hereby acknowledge and agree that you are aware, and that you will advise each of your Representatives to whom Confidential\nInformation is provided, that the U.S. securities laws prohibit any Person who has material non-public information concerning the matters which\nare the subject of this Agreement from purchasing or selling securities of the Company, or from communicating such material non-public\ninformation to any other Person under circumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such\nsecurities.\n-3-\n9. You represent and warrant to the Company that, as of the date hereof, you do not beneficially own any securities of the Company. You\nagree that, for the period beginning on the date hereof and ending on the earlier of (A) the one-year anniversary hereof or (B) the date on which\nthe Company or the Security Holders (defined below) enter into a definitive agreement with a third party to engage in, or make a public\nannouncement with respect to, the acquisition, whether by stock or asset purchase, merger, tender offer or exchange offer or otherwise, of all or\nsubstantially all of the assets of the Company or a majority of the outstanding voting securities of the Company (the “Standstill Period”), neither\nyou nor your Representatives (acting on your behalf or at your direction) will, directly or indirectly, without the prior written consent of the board\nof directors of the Company, (i) acquire, agree to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of, any\nsecurities or assets of the Company, any warrant or option to purchase such securities or assets, any security convertible into any such securities,\nor any other right to acquire such securities or assets (other than purchases of products or services in the ordinary course of business), (ii) enter,\nagree to enter, or propose, seek or offer to enter into or facilitate any merger, business combination, recapitalization, restructuring or other\nextraordinary transaction involving the Company, (iii) make, or in any way participate or engage in, any solicitation of proxies to vote, or seek to\nadvise or influence any Person with respect to the voting of, any voting securities of the Company, (iv) form, join or in any way participate in a\n“group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any\nvoting securities of the Company, (v) call, request the calling of, or otherwise seek or assist in the calling of a special meeting of the board of\ndirectors or shareholders of the Company, (vi) otherwise act, alone or in concert with others, to seek to control or influence the management or\nthe policies of the Company, (vii) disclose any intention, plan or arrangement prohibited by, or inconsistent with, any of the foregoing, or\n(viii) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other Persons in connection\nwith any of the foregoing. You further agree that during the Standstill Period neither you nor your Representatives will, directly or indirectly,\nwithout the prior written consent of the board of directors of the Company, (x) make any request directly or indirectly, to amend or waive any\nprovision of this paragraph (including this sentence), or (y) take any action that could reasonably be expected to require the Company to make a\npublic announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph. The\nforegoing shall not prohibit you from making a confidential proposal to the Company or any members of its Board of Directors, which it or he\nmay accept or reject in its or his sole discretion, so long as any such proposal is made in a manner that does not require public disclosure thereof\nby any person.\n10. You understand, acknowledge and agree that neither the Company nor any other Person who provides Confidential Information to you\npursuant to this Agreement (collectively, the “Disclosing Parties”) is making any representation or warranty, expressed or implied, as to the\naccuracy or completeness of the Confidential Information or of any other information concerning the Company, the Transaction, or any other\nmatter, in each case provided or prepared by or for the Disclosing Parties, and none of the Disclosing Parties will have any liability to you or any\nother Person resulting from or relating to your or their use of the Confidential Information or any of such other information. You agree that in\ndetermining to enter into and perform this Agreement you are not relying upon any representation, statement, promise, commitment,\nunderstanding or agreement made by or on behalf of the Company or any other Person, except as\n-4-\nexpressly set forth herein. Only those representations or warranties that are expressly set forth in a Transaction Agreement when, as and if duly\nexecuted and delivered by all parties thereto, and subject to such limitations and restrictions as may be expressly agreed in such Transaction\nAgreement, shall have any legal effect.\n11. You understand and agree that (other than this Agreement) no contract, agreement or understanding with respect to the Transaction\nexists nor shall one be deemed to exist between you and the Company unless and until a Transaction Agreement has been duly executed and\ndelivered by all parties thereto. You also agree that neither the Company nor any Disclosing Party will have any obligation of any kind\nwhatsoever with respect to the Transaction by virtue of this Agreement or any other written or oral expression with respect to the Transaction\nexcept (i) in the case of this Agreement, for the matters specifically agreed to herein and (ii) upon execution of the Transaction Agreement to the\nextent expressly set forth therein. You further understand and agree that:\n(a) the Company shall have sole discretion in determining the process for the Transaction;\n(b) any procedures relating to the Transaction may be changed at any time without notice to you or any other Person; and\n(c) the Company may postpone or abandon its efforts to engage in the Transaction at any time without any notice to you.\n12. You understand, acknowledge and agree that any disclosure, use or misappropriation of any Confidential Information in violation of\nthis Agreement would cause the Company irreparable harm, the amount (but not the certainty) of which would be difficult to ascertain. You agree\nthat the Company, in addition to any other remedies available to it, shall be entitled to seek equitable relief, including temporary restraining\norders and preliminary and permanent injunctions, in the event of a breach by you or your Representatives (either actual or threatened) of this\nAgreement (without necessity of posting any bond or other security or proving special damages) and that you shall not oppose the granting of\nsuch relief.\n13. To the extent that any Confidential Information includes materials or other information that may be subject to attorney-client privilege,\nwork product doctrine or any other applicable privilege or doctrine providing immunity from disclosure, you acknowledge and agree that you\nand the Company have a commonality of legal interest with respect to such matters, and agree that it is your mutual desire, intention and\nunderstanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such\nmaterials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine providing immunity from disclosure. Accordingly, all\nConfidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or\ndoctrine providing immunity from disclosure shall remain entitled to protection thereunder and shall be entitled to protection under the common\ninterest doctrine, and you agree to take all commercially reasonable measures to preserve, to the fullest extent possible, the applicability of all\nsuch privileges and doctrines, and you further agree that you will cooperate with the Company in efforts by it to preserve, to the fullest extent\npossible, the applicability of all such privileges and doctrines.\n-5-\n14. No provision of this Agreement can be waived or amended except by written consent of the Company. It is understood and agreed that\nno failure or delay by the Company in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or\npartial exercise thereof preclude any other or further exercise thereof.\n15. You understand that the Company and the Company’s security holders (the “Security Holders”) are represented in connection with the\nTransaction by Ropes & Gray LLP (“R&G”). If at any time you are or have been a client of R&G, you hereby irrevocably waive any conflicts\nthat may arise in connection with R&G representing the Company and the Security Holders in connection with the Transaction, and any conflicts\nthat may arise in connection with R&G representing the Security Holders after the closing of the Transaction (the “Closing”), including without\nlimitation in connection with any negotiation, arbitration, mediation, litigation or other proceeding in any way related to a dispute with you\nand/or the Company, on the one hand, and the Security Holders, on the other hand, even if your and the Company’s interests then would be\ndirectly adverse to those of the Security Holders in connection therewith. You represent and warrant that you have consulted with independent\ncounsel of your choosing before agreeing to this Agreement, including to this Section 15 and the waivers contained therein, and that such counsel\nhave explained to, and that you understand, the potential consequences of your agreement\n16. This Agreement is for the benefit of the Company and the other Disclosing Parties (and with respect to Section 15, R&G and the other\ncounsel referred to therein), and shall bind and inure to the benefit of the parties and their respective successors and assigns (provided, however,\nthat you may not assign this Agreement or any rights or obligations hereunder, without the Company’s prior written consent, failing which such\npurported assignment shall be null and void).\n17. This Agreement, and any action arising out of or relating to this Agreement, its negotiation, validity, performance or breach, or the\ntransactions contemplated hereby or the rights and obligations of the parties (whether sounding in contract, tort, statute or otherwise, and whether\nat law or in equity), shall be governed by and construed and enforced in accordance with the domestic substantive laws of the State of Delaware,\nwithout giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction. You\nand the Company each irrevocably: (i) consent to the exclusive jurisdiction and venue of the state and federal courts sitting in Wilmington,\nDelaware in any such action, (ii) agree that such courts are convenient forums for that purpose, and shall not seek to dismiss, transfer or remove\nsuch action to any other forum on grounds of lack of personal jurisdiction, improper venue, forum non conveniens or any similar doctrine,\n(iii) consent to service of process in any such action effected by delivery via nationally recognized overnight courier service, addressed to you or\nthe Company, as applicable, at such party’s address set forth above, in addition to any other method of service provided by applicable law,\n(iv) agree that such service of process shall be valid and (v) agree that such action shall be commenced and determined only in such courts.\nNotwithstanding the foregoing, actions or proceedings may be commenced in any jurisdiction to enforce or satisfy orders or judgments of such\ncourts.\n-6-\n18. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, THE PARTIES HEREBY WAIVE,\nAND AGREE THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL\nBY JURY IN ANY ACTION DESCRIBED IN SECTION 17 HEREOF. THE PARTIES AGREE THAT EITHER OF THEM MAY FILE A\nCOPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-\nFOR AGREEMENT BETWEEN THE PARTIES IRREVOCABLY TO WAIVE THEIR RIGHT TO TRIAL BY JURY IN ANY SUCH ACTION\nAND THAT ANY SUCH ACTION WILL INSTEAD BE TRIED BY A JUDGE SITTING WITHOUT A JURY.\n19. Your obligations under this Agreement, except: (i) the obligations with respect to any Confidential Information retained pursuant to\nSection 5 hereof, and (ii) as described in Sections 13, 14, 15, 16, 17 and 18 hereof and this Section 19, shall terminate two (2) years from the date\nhereof provided that such termination shall not relieve you of liability for breach by you or your Representatives prior to termination.\n20. Each party represents and warrants that this Agreement has been duly authorized, executed and delivered by it and constitutes a legal,\nvalid and binding obligation enforceable against such party in accordance with its terms.\n21. This Agreement constitutes the entire agreement of the parties with respect to its subject matter and supersedes any prior or\ncontemporaneous oral or written agreements or understandings with respect thereto.\n[Signature page follows]\n-7-\nThis Agreement is being delivered to you in duplicate. Kindly execute and return one copy of this Agreement, which will constitute our\nagreement with respect to the subject matter of this Agreement.\nVery truly yours,\nNorcraft Companies, Inc.\nBy: /s/ Mark Buller\nName: Mark Buller\nTitle: CHAIRMAN & CEO\nAccepted and Agreed To:\nFortune Brands Home & Security, Inc.\nBy: /s/ Robert K. Biggart\nName: Robert K. Biggart\nTitle: Senior Vice President, General Counsel &\nSecretary\n-8-
+06bb89c0b34d24024ccfba76663bac8f.pdf	effective_date jurisdiction party term	EX-10.1 2 d338123dex101.htm FORM OF EMPLOYEE NON-COMPETITION AND CONFIDENTIALITY\nAGREEMENT\nExhibit 10.1\nFORM OF\nEMPLOYEE NON-COMPETITION AND\nCONFIDENTIALITY AGREEMENT\nThis Employee Non-Competition and Confidentiality Agreement (“Agreement”) is made between REG MARKETING & LOGISTICS\nGROUP, LLC, an Iowa corporation (the “Employer”) and\n(“Employee”).\nRECITALS:\nA. The Employer and Employee are entering into or continuing an already existing “at will” employment relationship.\nB. The parties wish to set out certain further terms and conditions of Employee’s employment, whether with Employer, or an Affiliate of\nEmployer as defined hereafter (the Employer and its Affiliates herein collectively the “Company”), the parties recognizing that the Employee may at\ntimes be employed by an Affiliate of Employer.\nC. The Company’s special knowledge base, skills and competence in the biofuels and renewable chemicals industries are critical to its growth.\nD. The Company’s growth and competitiveness in the biofuels and renewable chemicals industries depend on its exclusive possession of, and\nthe non-public nature of, its “Confidential Information” (as hereinafter defined).\nE. The Company is engaged in research, development, procurement, sales, marketing, transportation and production of biofuels and renewable\nchemicals, feedstocks therefore and by-products thereof, and the ownership, lease, acquisition, financing, construction and operation of biofuels and\nrenewable chemicals facilities, both nationally and internationally (the “Biofuels/Renewable Chemicals Business”).\nNOW, THEREFORE, in consideration of such future or continuing employment relationship, and the agreements contained herein, and other\ngood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed as follows:\n1. Covenant Not To Compete. Employee shall not, during Employee’s employment with the Company and for twenty-four (24) months thereafter,\nwithout the prior written consent of the Company, directly or indirectly, own (other than passive investments in publicly traded companies where\nsuch investment does not exceed more than one percent (1%) of the total outstanding shares or other equity interests of such company), manage,\noperate, control, be employed by, participate in, advise or be connected in any manner with the ownership, management, operation or control of a\nCompeting Business. The covenants of Employee contained in this paragraph 1 shall apply to each State and Country in which the Company, either\ndirectly or indirectly through Employer or an Affiliate of Employer, conducted its business or otherwise offered any goods, products\nor services related to its business, which shall include all States in the United States of America, which Employee represents and warrants is the\nminimum geographical area in which the Company is presently operating and intending to operate.\nCompeting Business is defined as a business engaged in the manufacture, development, sale, or marketing of biodiesel or renewable diesel or any\nother product or service (a) actively manufactured, developed, sold, or marketed by the Company during Employee’s employment period, so long as\nit remains so manufactured, developed, sold, or marketed by the Company or (b) which the Company has taken, and continues to take, substantial\nsteps to prepare to test, manufacture, research, develop, fund, sell, market or otherwise target or pursue as a special project or initiative in which the\nEmployee had direct or indirect managerial or supervisory responsibility, as of the Employee’s termination date. For the avoidance of doubt,\nemployment with, or other provision of services to, an entity or other person that engages in a Competing Business shall not constitute the\nengagement by Employee in a Competing Business so long as Employee is not involved in activities constituting, and does not in any way assist or\nadvise, directly or indirectly, a Competing Business.\n2. Employees, Customers, Suppliers, Etc. Employee shall not for a period of twenty-four (24) months after Employee’s employment with the\nCompany ceases, in any manner, directly or indirectly, solicit the services or employment or engage the services or employ anyone who is then (or\nwho was within the six months prior thereto) an employee of the Company or, in connection with a Competing Business, contact or solicit any of the\nCompany’s then past, present or identified potential customers, suppliers or strategic partners or any such customer, supplier, or strategic partner of\nany facility managed by the Company.\n3. Confidential Information. Employee shall not during or after Employee’s employment with the Company, in any manner, directly or indirectly,\nuse or disclose to any third party any Confidential Information except as required in the course of performance of Employee’s employment with the\nCompany and as authorized by the Company in writing. For purposes of this Agreement, the terms “Confidential Information” shall be deemed to\ninclude, but not limited to, trade secrets, proprietary information, research and data, operating and marketing information, techniques and\nprocedures, customer lists, employee lists, supplier lists, training manuals and procedures, business plans, projections and strategies, pricing\ninformation and financial reports of the Company or any of its predecessors, West Central Cooperative, REG, LLC (fka Renewable Energy Group,\nLLC) and InterWest, L.C. (the “Predecessors”), in any form, which are not generally known to the public.\n4. Creations. Employee acknowledges that Employee may conceive of or otherwise create ideas, inventions, original works of authorship, product\ndesigns, logos, brand names, trade or service marks, and/or other similar or related items during the course of Employee’s employment\n(“Creations”). To the extent that any such Creations relate to the Company’s or Predecessors’ business or their customers or customer’s business,\nEmployee hereby assigns to the Company all rights, titles and interests in any such Creations, including, without limitation, all patent, trade secret,\ntrademark, service mark, trade dress, copyright and other intellectual property and similar or related rights.\n2\nDuring the term of Employee’s employment by the Company and for the period of one (1) year following termination of employment by\nEmployer and any of its Affiliates with or without cause, employee shall promptly disclose in writing to the Company all such intellectual property\nand other similar or related rights conceived or made by Employee, either solely or in concert with others.\nEmployee shall, at the Company’s request and expense, execute specific assignments to any and all such intellectual property and other similar\nor related rights and execute, acknowledge and deliver such other documents and take all such further action as may be requested by the Company, at\nany time during or subsequent to the period of Employee’s employment with the Company, to obtain, procure, prosecute, transfer, assign, enforce, or\ndefend any and all national or international intellectual property and/or other similar or related rights assigned hereby to the Company.\n5. Scope; Injunction. Employee agrees that the covenants contained in this Agreement are reasonable in scope, area and duration and are necessary\nin furtherance of the legitimate interests of the Company in protecting its business. Employee represents and warrants that Employee has available to\nEmployee sufficient other means of support and that observance of the covenants contained in this paragraph will not deprive Employee of the\nability to earn a livelihood or to support Employee’s dependents. In the event of the breach of this Agreement, Employee acknowledges and agrees\nthat irreparable injury will result to the Company and that injunctive relief to restrain the violation of this Agreement is appropriate in addition to any\nother remedies to which the Company may be entitled at law or in equity, all remedies being cumulative and not exclusive. In addition, Employee\nshall defend, indemnify and hold the Company and its directors, officers, shareholders, employees and agents, harmless from and against any claim,\ndemand, proceeding, loss, liability, damage, cost or expense, including court costs and attorneys’ fees, arising in connection with or resulting from\nany breach of warranty, misrepresentation or nonfulfillment of any agreement on the part of Employee under this Agreement whether that claim,\ndemand or proceeding is brought by the Employer, an Affiliate of Employer or a third party.\n6. No Guarantee of Employment. This Agreement does not confer upon Employee any rights to continue in the employ or service of the Company.\nExcept as may be provided in a separate written agreement, Employee’s employment with or service for the Company is “at will” and Company or\nEmployee may terminate Employee’s employment at any time, for any reason or no reason, with or without cause or notice.\n7. Salary Continuation. In the event of the termination by the Company of Employee’s employment with the Company without “cause” (as defined\nin the Company’s Amended and Restated 2009 Stock Incentive Plan, as such plan may be further amended from time to time, or any successor\nthereto), the Company shall continue to pay Employee’s base compensation at the rate in effect upon termination in accordance with\n3\nthe Company’s normal payroll practices (the “Salary Continuation”) until terminated by the Company upon at least thirty (30) days prior written\nnotice to Employee; provided, however, Employee’s obligations in paragraphs 1 and 2 hereof shall terminate effective upon the termination date of\nthe Salary Continuation; and, provided further, the Salary Continuation shall in no event continue beyond twenty-four (24) months after termination\nof Employee’s employment. In addition, as part of any such Salary Continuation, Company agrees to provide or reimburse Employee for up to\n$7,500 of job outplacement services during the twelve (12) month period following termination of employment.\n8. Change of Employer. Employee acknowledges that in the event Employee’s employment changes from Employer to an Affiliate of Employer,\nthat such change of employment shall be considered to be an assignment of this Agreement to such new employer, consented to by Employee\nwithout further action on Employee’s part. Employee acknowledges that the Employer and any Affiliate of Employer subsequently employing\nEmployee shall have the right to enforce any rights hereunder. Actions which may be taken by the Company hereunder may be exercised by the\nPresident of the Employer (or of any Affiliate of Employer subsequently employing the Employee).\n9. Miscellaneous. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matters hereof, and\nsupersedes all negotiations, preliminary agreements and all prior and contemporaneous discussions and understandings of the parties in connection\nwith the subject matters hereof. No amendment, waiver, change or modification of any of the terms, provisions or conditions of this Agreement shall\nbe effective unless made in writing and signed or initialed by each of the parties hereto. Waiver of any provision of this Agreement shall not be\ndeemed a waiver of future compliance therewith and such provision shall remain in full force and effect. In the event any provision of this\nAgreement is held invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement shall not be affected thereby and\nshall continue to be valid and enforceable. If, for any reason, a court finds that any provision of this Agreement is invalid, illegal or unenforceable as\nwritten, but that by limiting such provision it would become valid, legal and enforceable, then such provision shall be deemed to be written and shall\nbe construed and enforced as so limited. In addition, in the event a court determines any provision of this Agreement unenforceable under the laws of\nits jurisdiction, this Agreement shall not be deemed unenforceable under the laws and regulations of any other jurisdiction. This Agreement shall be\ngoverned by and construed in accordance with the laws of the state of Iowa without regard to conflicts of laws principles. Each of the parties hereby\nirrevocably submits to the exclusive jurisdiction of any United States Federal court sitting in Iowa in any action or proceeding arising out of or\nrelating to this Agreement or any agreement, document or instrument contemplated hereby, and each party hereby irrevocably agrees that all claims\nand counterclaims in respect of such action or proceeding may be heard and determined in any such United States Federal court. Each of the parties\nirrevocably waives any objection, including without limitation, any objection to the laying of venue or based on the grounds of forum non\nconveniens, which it may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions. Each of the parties\nirrevocably consents to the service of any and all process in any such action or proceeding brought in any court in or of the\n4\nState of Iowa by the delivery of copies of such process to each party at its address specified herein or by certified mail directed to such address.\nWords and phrases herein shall be construed as in the singular or plural number and as masculine, feminine or neuter gender, according to the\ncontext. The titles or captions of paragraphs of this Agreement are provided for convenience of reference only and shall not be considered a part\nhereof for purposes of interpreting or applying this Agreement and such titles or captions do not define, limit, extend, explain or describe the\nmeaning, scope or extent of this Agreement or any of its terms or conditions. This Agreement shall be binding upon and inure to the benefit of the\nparties hereto and their respective legal representatives, heirs, successors and assigns. Nothing in this Agreement, express or implied, is intended to\nconfer upon any party, other than the Employee, Employer and Employer’s Affiliates who may subsequently employ Employee (and their respective\nheirs, legal representatives, successors and assigns), any rights, remedies, obligations or liabilities under or by reason of this Agreement. This\nAgreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one\nand the same instrument, and in making proof hereof, it shall not be necessary to produce or account for more than one such counterpart.\n“Affiliate” means, for purposes of this Agreement, Renewable Energy Group, Inc. (if not the Employer), and any corporation, limited liability\ncompany or other entity directly or indirectly controlled by, or under common control with, Renewable Energy Group, Inc. as of the date on which,\nor at any time during the period for which, the determination of affiliation is being made. For purposes of this definition, the term “control”\n(including the correlative meanings of the terms “controlled by” and “under common control with”), as used with respect to any entity, means the\npossession, directly or indirectly, of the power to direct or cause the direction of the management policies of such entity, whether through the\nownership of voting securities or by contract or otherwise.\n10. Section 409A. Anything in this Agreement to the contrary notwithstanding:\n(a) This section is intended to help ensure that compensation to Employee pursuant to this Agreement either is paid in compliance with, or is\nexempt from, Section 409A of the Internal Revenue Code of 1986, as amended and the rules and regulations promulgated thereunder (collectively,\n“Section 409A”). For the purposes of determining when amounts otherwise payable on account of Employee’s termination of employment under this\nAgreement will be paid, which amounts become due because of Employee’s termination of employment, “termination of employment” or words of\nsimilar import, as used in this Agreement, shall be construed as the date that the Employee first incurs a “separation from service” for purposes of\nSection 409A on or following termination of employment.\n(b) If at the time of Employee’s separation from service within the meaning of Section 409A, Employee is a “specified employee” within the\nmeaning of Section 409A(a)(2)(B)(i) and if any payment that Employee becomes entitled to under this Agreement is considered deferred\ncompensation subject to Section 409A(a), then no such payment shall be payable prior to the date that is the earlier of (i) six months and\n5\none day after Employee’s date of termination, and (ii) Employee’s death, and the initial Payment shall include a catch-up amount covering amounts\nthat would otherwise have been paid during the first six-month period but for the application of this Section 10. For purposes of the application of\nSection 409A, each Salary Continuation payment under Section 7 shall constitute a separate payment.\n(c) The parties intend that this Agreement will be administered in accordance with Section 409A. The parties agree that this Agreement may be\namended, as reasonably requested by either party, as may be necessary to fully comply with Section 409A in order to preserve the payments\nprovided hereunder, without additional cost to either party.\nIN WITNESS WHEREOF, the Employer and Employee have executed this Agreement on the dates set forth below their respective signatures.\nREG MARKETING & LOGISTICS GROUP, LLC\nEMPLOYEE\nBy\nDated:\nDated:\n6	EX-10.1 2 d338123dex101.htm FORM OF EMPLOYEE NON-COMPETITION AND CONFIDENTIALITY\nAGREEMENT\nExhibit 10.1\nFORM OF\nEMPLOYEE NON-COMPETITION AND\nCONFIDENTIALITY AGREEMENT\nThis Employee Non-Competition and Confidentiality Agreement (“Agreement”) is made between REG MARKETING & LOGISTICS\nGROUP, LLC, an Iowa corporation (the “Employer”) and (“Employee”).\nRECITALS:\nA. The Employer and Employee are entering into or continuing an already existing “at will” employment relationship.\nB. The parties wish to set out certain further terms and conditions of Employee’s employment, whether with Employer, or an Affiliate of\nEmployer as defined hereafter (the Employer and its Affiliates herein collectively the “Company”), the parties recognizing that the Employee may at\ntimes be employed by an Affiliate of Employer.\nC. The Company’s special knowledge base, skills and competence in the biofuels and renewable chemicals industries are critical to its growth.\nD. The Company’s growth and competitiveness in the biofuels and renewable chemicals industries depend on its exclusive possession of, and\nthe non-public nature of, its “Confidential Information” (as hereinafter defined).\nE. The Company is engaged in research, development, procurement, sales, marketing, transportation and production of biofuels and renewable\nchemicals, feedstocks therefore and by-products thereof, and the ownership, lease, acquisition, financing, construction and operation of biofuels and\nrenewable chemicals facilities, both nationally and internationally (the “Biofuels/Renewable Chemicals Business™).\nNOW, THEREFORE, in consideration of such future or continuing employment relationship, and the agreements contained herein, and other\ngood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed as follows:\n1. Covenant Not To Compete. Employee shall not, during Employee’s employment with the Company and for twenty-four (24) months thereafter,\nwithout the prior written consent of the Company, directly or indirectly, own (other than passive investments in publicly traded companies where\nsuch investment does not exceed more than one percent (1%) of the total outstanding shares or other equity interests of such company), manage,\noperate, control, be employed by, participate in, advise or be connected in any manner with the ownership, management, operation or control of a\nCompeting Business. The covenants of Employee contained in this paragraph 1 shall apply to each State and Country in which the Company, either\ndirectly or indirectly through Employer or an Affiliate of Employer, conducted its business or otherwise offered any goods, products\nor services related to its business, which shall include all States in the United States of America, which Employee represents and warrants is the\nminimum geographical area in which the Company is presently operating and intending to operate.\nCompeting Business is defined as a business engaged in the manufacture, development, sale, or marketing of biodiesel or renewable diesel or any\nother product or service (a) actively manufactured, developed, sold, or marketed by the Company during Employee’s employment period, so long as\nit remains so manufactured, developed, sold, or marketed by the Company or (b) which the Company has taken, and continues to take, substantial\nsteps to prepare to test, manufacture, research, develop, fund, sell, market or otherwise target or pursue as a special project or initiative in which the\nEmployee had direct or indirect managerial or supervisory responsibility, as of the Employee’s termination date. For the avoidance of doubt,\nemployment with, or other provision of services to, an entity or other person that engages in a Competing Business shall not constitute the\nengagement by Employee in a Competing Business so long as Employee is not involved in activities constituting, and does not in any way assist or\nadvise, directly or indirectly, a Competing Business.\nCompany ceases, in any manner, directly or indirectly, solicit the services or employment or engage the services or employ anyone who is then (or\nwho was within the six months prior thereto) an employee of the Company or, in connection with a Competing Business, contact or solicit any of the\nCompany’s then past, present or identified potential customers, suppliers or strategic partners or any such customer, supplier, or strategic partner of\nany facility managed by the Company.\n3. Confidential Information. Employee shall not during or after Employee’s employment with the Company, in any manner, directly or indirectly,\nuse or disclose to any third party any Confidential Information except as required in the course of performance of Employee’s employment with the\nCompany and as authorized by the Company in writing. For purposes of this Agreement, the terms “Confidential Information” shall be deemed to\ninclude, but not limited to, trade secrets, proprietary information, research and data, operating and marketing information, techniques and\nprocedures, customer lists, employee lists, supplier lists, training manuals and procedures, business plans, projections and strategies, pricing\ninformation and financial reports of the Company or any of its predecessors, West Central Cooperative, REG, LLC (fka Renewable Energy Group,\nLLC) and InterWest, L.C. (the “Predecessors™), in any form, which are not generally known to the public.\n4. Creations. Employee acknowledges that Employee may conceive of or otherwise create ideas, inventions, original works of authorship, product\ndesigns, logos, brand names, trade or service marks, and/or other similar or related items during the course of Employee’s employment\n(“Creations”). To the extent that any such Creations relate to the Company’s or Predecessors’ business or their customers or customer’s business,\nEmployee hereby assigns to the Company all rights, titles and interests in any such Creations, including, without limitation, all patent, trade secret,\ntrademark, service mark, trade dress, copyright and other intellectual property and similar or related rights.\n2\nDuring the term of Employee’s employment by the Company and for the period of one (1) year following termination of employment by\nEmployer and any of its Affiliates with or without cause, employee shall promptly disclose in writing to the Company all such intellectual property\nand other similar or related rights conceived or made by Employee, either solely or in concert with others.\nEmployee shall, at the Company’s request and expense, execute specific assignments to any and all such intellectual property and other similar\nor related rights and execute, acknowledge and deliver such other documents and take all such further action as may be requested by the Company, at\nany time during or subsequent to the period of Employee’s employment with the Company, to obtain, procure, prosecute, transfer, assign, enforce, or\ndefend any and all national or international intellectual property and/or other similar or related rights assigned hereby to the Company.\n \n5. Scope; Injunction. Employee agrees that the covenants contained in this Agreement are reasonable in scope, area and duration and are necessary\nin furtherance of the legitimate interests of the Company in protecting its business. Employee represents and warrants that Employee has available to\nEmployee sufficient other means of support and that observance of the covenants contained in this paragraph will not deprive Employee of the\nability to earn a livelihood or to support Employee’s dependents. In the event of the breach of this Agreement, Employee acknowledges and agrees\nthat irreparable injury will result to the Company and that injunctive relief to restrain the violation of this Agreement is appropriate in addition to any\nother remedies to which the Company may be entitled at law or in equity, all remedies being cumulative and not exclusive. In addition, Employee\nshall defend, indemnify and hold the Company and its directors, officers, shareholders, employees and agents, harmless from and against any claim,\ndemand, proceeding, loss, liability, damage, cost or expense, including court costs and attorneys’ fees, arising in connection with or resulting from\nany breach of warranty, misrepresentation or nonfulfillment of any agreement on the part of Employee under this Agreement whether that claim,\ndemand or proceeding is brought by the Employer, an Affiliate of Employer or a third party.\n6. No Guarantee of Employment. This Agreement does not confer upon Employee any rights to continue in the employ or service of the Company.\nExcept as may be provided in a separate written agreement, Employee’s employment with or service for the Company is “at will” and Company or\nEmployee may terminate Employee’s employment at any time, for any reason or no reason, with or without cause or notice.\n7. Salary Continuation. In the event of the termination by the Company of Employee’s employment with the Company without “cause” (as defined\nin the Company’s Amended and Restated 2009 Stock Incentive Plan, as such plan may be further amended from time to time, or any successor\nthereto), the Company shall continue to pay Employee’s base compensation at the rate in effect upon termination in accordance with\n3\nthe Company’s normal payroll practices (the “Salary Continuation”) until terminated by the Company upon at least thirty (30) days prior written\nnotice to Employee; provided, however, Employee’s obligations in paragraphs 1 and 2 hereof shall terminate effective upon the termination date of\nthe Salary Continuation; and, provided further, the Salary Continuation shall in no event continue beyond twenty-four (24) months after termination\nof Employee’s employment. In addition, as part of any such Salary Continuation, Company agrees to provide or reimburse Employee for up to\n$7,500 of job outplacement services during the twelve (12) month period following termination of employment.\n8. Change of Employer. Employee acknowledges that in the event Employee’s employment changes from Employer to an Affiliate of Employer,\nthat such change of employment shall be considered to be an assignment of this Agreement to such new employer, consented to by Employee\nwithout further action on Employee’s part. Employee acknowledges that the Employer and any Affiliate of Employer subsequently employing\nEmployee shall have the right to enforce any rights hereunder. Actions which may be taken by the Company hereunder may be exercised by the\nPresident of the Employer (or of any Affiliate of Employer subsequently employing the Employee).\n9. Miscellaneous. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matters hereof, and\nsupersedes all negotiations, preliminary agreements and all prior and contemporaneous discussions and understandings of the parties in connection\nwith the subject matters hereof. No amendment, waiver, change or modification of any of the terms, provisions or conditions of this Agreement shall\nbe effective unless made in writing and signed or initialed by each of the parties hereto. Waiver of any provision of this Agreement shall not be\ndeemed a waiver of future compliance therewith and such provision shall remain in full force and effect. In the event any provision of this\nAgreement is held invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement shall not be affected thereby and\nshall continue to be valid and enforceable. If, for any reason, a court finds that any provision of this Agreement is invalid, illegal or unenforceable as\nwritten, but that by limiting such provision it would become valid, legal and enforceable, then such provision shall be deemed to be written and shall\nbe construed and enforced as so limited. In addition, in the event a court determines any provision of this Agreement unenforceable under the laws of\nits jurisdiction, this Agreement shall not be deemed unenforceable under the laws and regulations of any other jurisdiction. This Agreement shall be\ngoverned by and construed in accordance with the laws of the state of Iowa without regard to conflicts of laws principles. Each of the parties hereby\nirrevocably submits to the exclusive jurisdiction of any United States Federal court sitting in Iowa in any action or proceeding arising out of or\nrelating to this Agreement or any agreement, document or instrument contemplated hereby, and each party hereby irrevocably agrees that all claims\nand counterclaims in respect of such action or proceeding may be heard and determined in any such United States Federal court. Each of the parties\nirrevocably waives any objection, including without limitation, any objection to the laying of venue or based on the grounds of forum non\nconveniens, which it may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions. Each of the parties\nirrevocably consents to the service of any and all process in any such action or proceeding brought in any court in or of the\n4\nState of Iowa by the delivery of copies of such process to each party at its address specified herein or by certified mail directed to such address.\nWords and phrases herein shall be construed as in the singular or plural number and as masculine, feminine or neuter gender, according to the\ncontext. The titles or captions of paragraphs of this Agreement are provided for convenience of reference only and shall not be considered a part\nhereof for purposes of interpreting or applying this Agreement and such titles or captions do not define, limit, extend, explain or describe the\nmeaning, scope or extent of this Agreement or any of its terms or conditions. This Agreement shall be binding upon and inure to the benefit of the\nparties hereto and their respective legal representatives, heirs, successors and assigns. Nothing in this Agreement, express or implied, is intended to\nconfer upon any party, other than the Employee, Employer and Employer’s Affiliates who may subsequently employ Employee (and their respective\nheirs, legal representatives, successors and assigns), any rights, remedies, obligations or liabilities under or by reason of this Agreement. This\nAgreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one\nand the same instrument, and in making proof hereof, it shall not be necessary to produce or account for more than one such counterpart.\n“Affiliate” means, for purposes of this Agreement, Renewable Energy Group, Inc. (if not the Employer), and any corporation, limited liability\ncompany or other entity directly or indirectly controlled by, or under common control with, Renewable Energy Group, Inc. as of the date on which,\nor at any time during the period for which, the determination of affiliation is being made. For purposes of this definition, the term “control”\n(including the correlative meanings of the terms “controlled by” and “under common control with”), as used with respect to any entity, means the\npossession, directly or indirectly, of the power to direct or cause the direction of the management policies of such entity, whether through the\nownership of voting securities or by contract or otherwise.\n10. Section 409A. Anything in this Agreement to the contrary notwithstanding:\n(a) This section is intended to help ensure that compensation to Employee pursuant to this Agreement either is paid in compliance with, or is\nexempt from, Section 409A of the Internal Revenue Code of 1986, as amended and the rules and regulations promulgated thereunder (collectively,\n“Section 409A”). For the purposes of determining when amounts otherwise payable on account of Employee’s termination of employment under this\nAgreement will be paid, which amounts become due because of Employee’s termination of employment, “termination of employment” or words of\nsimilar import, as used in this Agreement, shall be construed as the date that the Employee first incurs a “separation from service” for purposes of\nSection 409A on or following termination of employment.\n(b) If at the time of Employee’s separation from service within the meaning of Section 409A, Employee is a “specified employee” within the\nmeaning of Section 409A(a)(2)(B)(i) and if any payment that Employee becomes entitled to under this Agreement is considered deferred\ncompensation subject to Section 409A(a), then no such payment shall be payable prior to the date that is the earlier of (i) six months and\n5\none day after Employee’s date of termination, and (ii) Employee’s death, and the initial Payment shall include a catch-up amount covering amounts\nthat would otherwise have been paid during the first six-month period but for the application of this Section 10. For purposes of the application of\nSection 409A, each Salary Continuation payment under Section 7 shall constitute a separate payment.\n(c) The parties intend that this Agreement will be administered in accordance with Section 409A. The parties agree that this Agreement may be\namended, as reasonably requested by either party, as may be necessary to fully comply with Section 409A in order to preserve the payments\nprovided hereunder, without additional cost to either party.\nIN WITNESS WHEREOF, the Employer and Employee have executed this Agreement on the dates set forth below their respective signatures.\nREG MARKETING & LOGISTICS GROUP, L1LC EMPLOYEE\nBy\nDated: Dated:	EX-10.1 2 d338123dex101.htm FORM OF EMPLOYEE NON-COMPETITION AND CONFIDENTIALITY\nAGREEMENT\nExhibit 10.1\nFORM OF\nEMPLOYEE NON-COMPETITION AND\nCONFIDENTIALITY AGREEMENT\nThis Employee Non-Competition and Confidentiality Agreement ("Agreement") is made between REG MARKETING & LOGISTICS\nGROUP, LLC, an Iowa corporation (the "Employer") and\n("Employee").\nRECITALS:\nA. The Employer and Employee are entering into or continuing an already existing "at will" employment relationship.\nB. The parties wish to set out certain further terms and conditions of Employee's employment, whether with Employer, or an Affiliate of\nEmployer as defined hereafter (the Employer and its Affiliates herein collectively the "Company"), the parties recognizing that the Employee may at\ntimes be employed by an Affiliate of Employer.\nC. The Company's special knowledge base, skills and competence in the biofuels and renewable chemicals industries are critical to its growth.\nD. The Company's growth and competitiveness in the biofuels and renewable chemicals industries depend on its exclusive possession of, and\nthe non-public nature of, its "Confidential Information" (as hereinafter defined).\nE. The Company is engaged in research, development, procurement, sales, marketing, transportation and production of biofuels and renewable\nchemicals, feedstocks therefore and by-products thereof, and the ownership, lease, acquisition, financing, construction and operation of biofuels and\nrenewable chemicals facilities, both nationally and internationally (the "Biofuels/Renewable Chemicals Business").\nNOW, THEREFORE, in consideration of such future or continuing employment relationship, and the agreements contained herein, and other\ngood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed as follows:\n1. Covenant Not To Compete. Employee shall not, during Employee's employment with the Company and for twenty-four (24) months thereafter,\nwithout the prior written consent of the Company, directly or indirectly, own (other than passive investments in publicly traded companies where\nsuch\ninvestment does not exceed more than one percent (1%) of the total outstanding shares or other equity interests of such company), manage,\noperate, control, be employed by, participate in, advise or be connected in any manner with the ownership, management, operation or control of a\nCompeting Business. The covenants of Employee contained in this paragraph 1 shall apply to each State and Country in which the Company, either\ndirectly or indirectly through Employer or an Affiliate of Employer, conducted its business or otherwise offered any goods, products\nor services related to its business, which shall include all States in the United States of America, which Employee represents and warrants is the\nminimum geographical area in which the Company is presently operating and intending to operate.\nCompeting Business is defined as a business engaged in the manufacture, development, sale, or marketing of biodiesel or renewable diesel or\nany\nother product or service (a) actively manufactured, developed, sold, or marketed by the Company during Employee's employment period, so long\nas\nit remains so manufactured, developed, sold, or marketed by the Company or (b) which the Company has taken, and continues to take, substantial\nsteps to prepare to test, manufacture, research, develop, fund, sell, market or otherwise target or pursue as a special project or initiative in which the\nEmployee had direct or indirect managerial or supervisory responsibility, as of the Employee's termination date. For the avoidance of doubt,\nemployment with, or other provision of services to, an entity or other person that engages in a Competing Business shall not constitute the\nengagement by Employee in a Competing Business so long as Employee is not involved in activities constituting, and does not in any way assist or\nadvise, directly or indirectly, a Competing Business.\n2. Employees, Customers, Suppliers, Etc. Employee shall not for a period of twenty-four (24) months after Employee's employment with the\nCompany ceases, in any manner, directly or indirectly, solicit the services or employment or engage the services or employ anyone who is then (or\nwho was within the six months prior thereto) an employee of the Company or, in connection with a Competing Business, contact or solicit any of the\nCompany's then past, present or identified potential customers, suppliers or strategic partners or any such customer, supplier, or strategic partner of\nany facility managed by the Company.\n3. Confidential Information. Employee shall not during or after Employee's employment with the Company, in any manner, directly or indirectly,\nuse\nor disclose to any third party any Confidential Information except as required in the course of performance of Employee's employment with the\nCompany and as authorized by the Company in writing. For purposes of this Agreement, the terms "Confidential Information" shall be deemed to\ninclude, but not limited to, trade secrets, proprietary information, research and data, operating and marketing information, techniques and\nprocedures, customer lists, employee lists, supplier lists, training manuals and procedures, business plans, projections and strategies, pricing\ninformation and financial reports of the Company or any of its predecessors, West Central Cooperative, REG, LLC (fka Renewable Energy Group,\nLLC) and InterWest, L.C. (the "Predecessors"), in any form, which are not generally known to the public.\n4. Creations. Employee acknowledges that Employee may conceive of or otherwise create ideas, inventions, original works of authorship, product\ndesigns, logos, brand names, trade or service marks, and/or other similar or related items during the course of Employee's employment\n("Creations"). To the extent that any such Creations relate to the Company's or Predecessors' business or their customers or customer's business,\nEmployee hereby assigns to the Company all rights, titles and interests in any such Creations, including, without limitation, all patent, trade secret,\ntrademark, service mark, trade dress, copyright and other intellectual property and similar or related rights.\n2\nDuring the term of Employee's employment by the Company and for the period of one (1) year following termination of employment by\nEmployer and any of its Affiliates with or without cause, employee shall promptly disclose in writing to the Company all such intellectual property\nand other similar or related rights conceived or made by Employee, either solely or in concert with others.\nEmployee shall, at the Company's request and expense, execute specific assignments to any and all such intellectual property and other similar\nor\nrelated rights and execute, acknowledge and deliver such other documents and take all such further action as may be requested by the Company, at\nany time during or subsequent to the period of Employee's employment with the Company, to obtain, procure, prosecute, transfer, assign, enforce,\nor\ndefend any and all national or international intellectual property and/or other similar or related rights assigned hereby to the Company.\n5. Scope; Injunction. Employee agrees that the covenants contained in this Agreement are reasonable in scope, area and duration and are necessary\nin furtherance of the legitimate interests of the Company in protecting its business. Employee represents and warrants that Employee has available to\nEmployee sufficient other means of support and that observance of the covenants contained in this paragraph will not deprive Employee of the\nability to earn a livelihood or to support Employee's dependents. In the event of the breach of this Agreement, Employee acknowledges and agrees\nthat irreparable injury will result to the Company and that injunctive relief to restrain the violation of this Agreement is appropriate in addition to any\nother remedies to which the Company may be entitled at law or in equity, all remedies being cumulative and not exclusive. In addition, Employee\nshall defend, indemnify and hold the Company and its directors, officers, shareholders, employees and agents, harmless from and against any claim,\ndemand, proceeding, loss, liability, damage, cost or expense, including court costs and attorneys' fees, arising in connection with or resulting from\nany breach of warranty, misrepresentation or nonfulfillment of any agreement on the part of Employee under this Agreement whether that claim,\ndemand or proceeding is brought by the Employer, an Affiliate of Employer or a third party.\n6.\nNo\nGuarantee\nof\nEmployment.\nThis\nAgreement\ndoes\nnot\nconfer\nupon\nEmployee\nany\nrights\nto\ncontinue\nin\nthe\nemploy\nor\nservice\nof\nthe\nCompany.\nExcept as may be provided in a separate written agreement, Employee's employment with or service for the Company is "at will" and Company or\nEmployee may terminate Employee's employment at any time, for any reason or no reason, with or without cause or notice.\n7. Salary Continuation. In the event of the termination by the Company of Employee's employment with the Company without "cause" (as defined\nin\nthe Company's Amended and Restated 2009 Stock Incentive Plan, as such plan may be further amended from time to time, or any successor\nthereto), the Company shall continue to pay Employee's base compensation at the rate in effect upon termination in accordance with\n3\nthe Company's normal payroll practices (the "Salary Continuation") until terminated by the Company upon at least thirty (30) days prior written\nnotice to Employee; provided, however, Employee's obligations in paragraphs 1 and 2 hereof shall terminate effective upon the termination date of\nthe Salary Continuation; and, provided further, the Salary Continuation shall in no event continue beyond twenty-four (24) months after termination\nof Employee's employment. In addition, as part of any such Salary Continuation, Company agrees to provide or reimburse Employee for up to\n$7,500 of job outplacement services during the twelve (12) month period following termination of employment.\n8. Change of Employer. Employee acknowledges that in the event Employee's employment changes from Employer to an Affiliate of Employer,\nthat such change of employment shall be considered to be an assignment of this Agreement to such new employer, consented to by Employee\nwithout further action on Employee's part. Employee acknowledges that the Employer and any Affiliate of Employer subsequently employing\nEmployee shall have the right to enforce any rights hereunder. Actions which may be taken by the Company hereunder may be exercised by the\nPresident of the Employer (or of any Affiliate of Employer subsequently employing the Employee).\n9. Miscellaneous. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matters hereof, and\nsupersedes all negotiations, preliminary agreements and all prior and contemporaneous discussions and understandings of the parties in connection\nwith the subject matters hereof. No amendment, waiver, change or modification of any of the terms, provisions or conditions of this Agreement shall\nbe effective unless made in writing and signed or initialed by each of the parties hereto. Waiver of any provision of this Agreement shall not be\ndeemed a waiver of future compliance therewith and such provision shall remain in full force and effect. In the event any provision of this\nAgreement is held invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement shall not be affected thereby and\nshall continue to be valid and enforceable. If, for any reason, a court finds that any provision of this Agreement is invalid, illegal or unenforceable as\nwritten, but that by limiting such provision it would become valid, legal and enforceable, then such provision shall be deemed to be written and shall\nbe construed and enforced as SO limited. In addition, in the event a court determines any provision of this Agreement unenforceable under the laws of\nits jurisdiction, this Agreement shall not be deemed unenforceable under the laws and regulations of any other jurisdiction. This Agreement shall be\ngoverned by and construed in accordance with the laws of the state of Iowa without regard to conflicts of laws principles. Each of the parties hereby\nirrevocably submits to the exclusive jurisdiction of any United States Federal court sitting in Iowa in any action or proceeding arising out of or\nrelating to this Agreement or any agreement, document or instrument contemplated hereby, and each party hereby irrevocably agrees that all claims\nand counterclaims in respect of such action or proceeding may be heard and determined in any such United States Federal court. Each of the parties\nirrevocably waives any objection, including without limitation, any objection to the laying of venue or based on the grounds of forum non\nconveniens, which it may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions. Each of the parties\nirrevocably consents to the service of any and all process in any such action or proceeding brought in any court in or of the\n4\nState of Iowa by the delivery of copies of such process to each party at its address specified herein or by certified mail directed to such address.\nWords and phrases herein shall be construed as in the singular or plural number and as masculine, feminine or neuter gender, according to the\ncontext. The titles or captions of paragraphs of this Agreement are provided for convenience of reference only and shall not be considered a part\nhereof for purposes of interpreting or applying this Agreement and such titles or captions do not define, limit, extend, explain or describe the\nmeaning, scope or extent of this Agreement or any of its terms or conditions. This Agreement shall be binding upon and inure to the benefit of\nthe\nparties hereto and their respective legal representatives, heirs, successors and assigns. Nothing in this Agreement, express or implied, is intended to\nconfer upon any party, other than the Employee, Employer and Employer's Affiliates who may subsequently employ Employee (and their respective\nheirs, legal representatives, successors and assigns), any rights, remedies, obligations or liabilities under or by reason of this Agreement. This\nAgreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one\nand the same instrument, and in making proof hereof, it shall not be necessary to produce or account for more than one such counterpart.\n"Affiliate" means, for purposes of this Agreement, Renewable Energy Group, Inc. (if not the Employer), and any corporation, limited liability\ncompany or other entity directly or indirectly controlled by, or under common control with, Renewable Energy Group, Inc. as of the date on which,\nor at any time during the period for which, the determination of affiliation is being made. For purposes of this definition, the term "control"\n(including the correlative meanings of the terms "controlled by" and "under common control with"), as used with respect to any entity, means the\npossession, directly or indirectly, of the power to direct or cause the direction of the management policies of such entity, whether through the\nownership of voting securities or by contract or otherwise.\n10. Section 409A. Anything in this Agreement to the contrary notwithstanding:\n(a)\nThis section is intended to help ensure that compensation to Employee pursuant to this Agreement either is paid in compliance with, or\nis\nexempt from, Section 409A of the Internal Revenue Code of 1986, as amended and the rules and regulations promulgated thereunder (collectively,\n"Section 409A"). For the purposes of determining when amounts otherwise payable on account of Employee's termination of employment under this\nAgreement will be paid, which amounts become due because of Employee's termination of employment, "termination of employment" or words of\nsimilar import, as used in this Agreement, shall be construed as the date that the Employee first incurs a "separation from service" for purposes of\nSection 409A on or following termination of employment.\n(b) If at the time of Employee's separation from service within the meaning of Section 409A, Employee is a "specified employee" within the\nmeaning of Section 409A(a)(2)(B)(i) and if any payment that Employee becomes entitled to under this Agreement is considered deferred\ncompensation subject to Section 409A(a), then no such payment shall be payable prior to the date that is the earlier of (i) six months and\n5\none\nday after Employee's date of termination, and (ii) Employee's death, and the initial Payment shall include a catch-up amount covering amounts\nthat would otherwise have been paid during the first six-month period but for the application of this Section 10. For purposes of the application of\nSection 409A, each Salary Continuation payment under Section 7 shall constitute a separate payment.\n(c)\nThe parties intend that this Agreement will be administered in accordance with Section 409A. The parties agree that this Agreement may be\namended, as reasonably requested by either party, as may be necessary to fully comply with Section 409A in order to preserve the payments\nprovided hereunder, without additional cost to either party.\nIN WITNESS WHEREOF, the Employer and Employee have executed this Agreement on the dates set forth below their respective signatures.\nREG MARKETING & LOGISTICS GROUP, LLC\nEMPLOYEE\nBy\nDated:\nDated:\n6	EX-10.1 2 d338123dex101.htm FORM OF EMPLOYEE NON-COMPETITION AND CONFIDENTIALITY\nAGREEMENT\nExhibit 10.1\nFORM OF\nEMPLOYEE NON-COMPETITION AND\nCONFIDENTIALITY AGREEMENT\nThis Employee Non-Competition and Confidentiality Agreement (“Agreement”) is made between REG MARKETING & LOGISTICS\nGROUP, LLC, an Iowa corporation (the “Employer”) and\n(“Employee”).\nRECITALS:\nA. The Employer and Employee are entering into or continuing an already existing “at will” employment relationship.\nB. The parties wish to set out certain further terms and conditions of Employee’s employment, whether with Employer, or an Affiliate of\nEmployer as defined hereafter (the Employer and its Affiliates herein collectively the “Company”), the parties recognizing that the Employee may at\ntimes be employed by an Affiliate of Employer.\nC. The Company’s special knowledge base, skills and competence in the biofuels and renewable chemicals industries are critical to its growth.\nD. The Company’s growth and competitiveness in the biofuels and renewable chemicals industries depend on its exclusive possession of, and\nthe non-public nature of, its “Confidential Information” (as hereinafter defined).\nE. The Company is engaged in research, development, procurement, sales, marketing, transportation and production of biofuels and renewable\nchemicals, feedstocks therefore and by-products thereof, and the ownership, lease, acquisition, financing, construction and operation of biofuels and\nrenewable chemicals facilities, both nationally and internationally (the “Biofuels/Renewable Chemicals Business”).\nNOW, THEREFORE, in consideration of such future or continuing employment relationship, and the agreements contained herein, and other\ngood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed as follows:\n1. Covenant Not To Compete. Employee shall not, during Employee’s employment with the Company and for twenty-four (24) months thereafter,\nwithout the prior written consent of the Company, directly or indirectly, own (other than passive investments in publicly traded companies where\nsuch investment does not exceed more than one percent (1%) of the total outstanding shares or other equity interests of such company), manage,\noperate, control, be employed by, participate in, advise or be connected in any manner with the ownership, management, operation or control of a\nCompeting Business. The covenants of Employee contained in this paragraph 1 shall apply to each State and Country in which the Company, either\ndirectly or indirectly through Employer or an Affiliate of Employer, conducted its business or otherwise offered any goods, products\nor services related to its business, which shall include all States in the United States of America, which Employee represents and warrants is the\nminimum geographical area in which the Company is presently operating and intending to operate.\nCompeting Business is defined as a business engaged in the manufacture, development, sale, or marketing of biodiesel or renewable diesel or any\nother product or service (a) actively manufactured, developed, sold, or marketed by the Company during Employee’s employment period, so long as\nit remains so manufactured, developed, sold, or marketed by the Company or (b) which the Company has taken, and continues to take, substantial\nsteps to prepare to test, manufacture, research, develop, fund, sell, market or otherwise target or pursue as a special project or initiative in which the\nEmployee had direct or indirect managerial or supervisory responsibility, as of the Employee’s termination date. For the avoidance of doubt,\nemployment with, or other provision of services to, an entity or other person that engages in a Competing Business shall not constitute the\nengagement by Employee in a Competing Business so long as Employee is not involved in activities constituting, and does not in any way assist or\nadvise, directly or indirectly, a Competing Business.\n2. Employees, Customers, Suppliers, Etc. Employee shall not for a period of twenty-four (24) months after Employee’s employment with the\nCompany ceases, in any manner, directly or indirectly, solicit the services or employment or engage the services or employ anyone who is then (or\nwho was within the six months prior thereto) an employee of the Company or, in connection with a Competing Business, contact or solicit any of the\nCompany’s then past, present or identified potential customers, suppliers or strategic partners or any such customer, supplier, or strategic partner of\nany facility managed by the Company.\n3. Confidential Information. Employee shall not during or after Employee’s employment with the Company, in any manner, directly or indirectly,\nuse or disclose to any third party any Confidential Information except as required in the course of performance of Employee’s employment with the\nCompany and as authorized by the Company in writing. For purposes of this Agreement, the terms “Confidential Information” shall be deemed to\ninclude, but not limited to, trade secrets, proprietary information, research and data, operating and marketing information, techniques and\nprocedures, customer lists, employee lists, supplier lists, training manuals and procedures, business plans, projections and strategies, pricing\ninformation and financial reports of the Company or any of its predecessors, West Central Cooperative, REG, LLC (fka Renewable Energy Group,\nLLC) and InterWest, L.C. (the “Predecessors”), in any form, which are not generally known to the public.\n4. Creations. Employee acknowledges that Employee may conceive of or otherwise create ideas, inventions, original works of authorship, product\ndesigns, logos, brand names, trade or service marks, and/or other similar or related items during the course of Employee’s employment\n(“Creations”). To the extent that any such Creations relate to the Company’s or Predecessors’ business or their customers or customer’s business,\nEmployee hereby assigns to the Company all rights, titles and interests in any such Creations, including, without limitation, all patent, trade secret,\ntrademark, service mark, trade dress, copyright and other intellectual property and similar or related rights.\n2\nDuring the term of Employee’s employment by the Company and for the period of one (1) year following termination of employment by\nEmployer and any of its Affiliates with or without cause, employee shall promptly disclose in writing to the Company all such intellectual property\nand other similar or related rights conceived or made by Employee, either solely or in concert with others.\nEmployee shall, at the Company’s request and expense, execute specific assignments to any and all such intellectual property and other similar\nor related rights and execute, acknowledge and deliver such other documents and take all such further action as may be requested by the Company, at\nany time during or subsequent to the period of Employee’s employment with the Company, to obtain, procure, prosecute, transfer, assign, enforce, or\ndefend any and all national or international intellectual property and/or other similar or related rights assigned hereby to the Company.\n5. Scope; Injunction. Employee agrees that the covenants contained in this Agreement are reasonable in scope, area and duration and are necessary\nin furtherance of the legitimate interests of the Company in protecting its business. Employee represents and warrants that Employee has available to\nEmployee sufficient other means of support and that observance of the covenants contained in this paragraph will not deprive Employee of the\nability to earn a livelihood or to support Employee’s dependents. In the event of the breach of this Agreement, Employee acknowledges and agrees\nthat irreparable injury will result to the Company and that injunctive relief to restrain the violation of this Agreement is appropriate in addition to any\nother remedies to which the Company may be entitled at law or in equity, all remedies being cumulative and not exclusive. In addition, Employee\nshall defend, indemnify and hold the Company and its directors, officers, shareholders, employees and agents, harmless from and against any claim,\ndemand, proceeding, loss, liability, damage, cost or expense, including court costs and attorneys’ fees, arising in connection with or resulting from\nany breach of warranty, misrepresentation or nonfulfillment of any agreement on the part of Employee under this Agreement whether that claim,\ndemand or proceeding is brought by the Employer, an Affiliate of Employer or a third party.\n6. No Guarantee of Employment. This Agreement does not confer upon Employee any rights to continue in the employ or service of the Company.\nExcept as may be provided in a separate written agreement, Employee’s employment with or service for the Company is “at will” and Company or\nEmployee may terminate Employee’s employment at any time, for any reason or no reason, with or without cause or notice.\n7. Salary Continuation. In the event of the termination by the Company of Employee’s employment with the Company without “cause” (as defined\nin the Company’s Amended and Restated 2009 Stock Incentive Plan, as such plan may be further amended from time to time, or any successor\nthereto), the Company shall continue to pay Employee’s base compensation at the rate in effect upon termination in accordance with\n3\nthe Company’s normal payroll practices (the “Salary Continuation”) until terminated by the Company upon at least thirty (30) days prior written\nnotice to Employee; provided, however, Employee’s obligations in paragraphs 1 and 2 hereof shall terminate effective upon the termination date of\nthe Salary Continuation; and, provided further, the Salary Continuation shall in no event continue beyond twenty-four (24) months after termination\nof Employee’s employment. In addition, as part of any such Salary Continuation, Company agrees to provide or reimburse Employee for up to\n$7,500 of job outplacement services during the twelve (12) month period following termination of employment.\n8. Change of Employer. Employee acknowledges that in the event Employee’s employment changes from Employer to an Affiliate of Employer,\nthat such change of employment shall be considered to be an assignment of this Agreement to such new employer, consented to by Employee\nwithout further action on Employee’s part. Employee acknowledges that the Employer and any Affiliate of Employer subsequently employing\nEmployee shall have the right to enforce any rights hereunder. Actions which may be taken by the Company hereunder may be exercised by the\nPresident of the Employer (or of any Affiliate of Employer subsequently employing the Employee).\n9. Miscellaneous. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matters hereof, and\nsupersedes all negotiations, preliminary agreements and all prior and contemporaneous discussions and understandings of the parties in connection\nwith the subject matters hereof. No amendment, waiver, change or modification of any of the terms, provisions or conditions of this Agreement shall\nbe effective unless made in writing and signed or initialed by each of the parties hereto. Waiver of any provision of this Agreement shall not be\ndeemed a waiver of future compliance therewith and such provision shall remain in full force and effect. In the event any provision of this\nAgreement is held invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement shall not be affected thereby and\nshall continue to be valid and enforceable. If, for any reason, a court finds that any provision of this Agreement is invalid, illegal or unenforceable as\nwritten, but that by limiting such provision it would become valid, legal and enforceable, then such provision shall be deemed to be written and shall\nbe construed and enforced as so limited. In addition, in the event a court determines any provision of this Agreement unenforceable under the laws of\nits jurisdiction, this Agreement shall not be deemed unenforceable under the laws and regulations of any other jurisdiction. This Agreement shall be\ngoverned by and construed in accordance with the laws of the state of Iowa without regard to conflicts of laws principles. Each of the parties hereby\nirrevocably submits to the exclusive jurisdiction of any United States Federal court sitting in Iowa in any action or proceeding arising out of or\nrelating to this Agreement or any agreement, document or instrument contemplated hereby, and each party hereby irrevocably agrees that all claims\nand counterclaims in respect of such action or proceeding may be heard and determined in any such United States Federal court. Each of the parties\nirrevocably waives any objection, including without limitation, any objection to the laying of venue or based on the grounds of forum non\nconveniens, which it may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions. Each of the parties\nirrevocably consents to the service of any and all process in any such action or proceeding brought in any court in or of the\n4\nState of Iowa by the delivery of copies of such process to each party at its address specified herein or by certified mail directed to such address.\nWords and phrases herein shall be construed as in the singular or plural number and as masculine, feminine or neuter gender, according to the\ncontext. The titles or captions of paragraphs of this Agreement are provided for convenience of reference only and shall not be considered a part\nhereof for purposes of interpreting or applying this Agreement and such titles or captions do not define, limit, extend, explain or describe the\nmeaning, scope or extent of this Agreement or any of its terms or conditions. This Agreement shall be binding upon and inure to the benefit of the\nparties hereto and their respective legal representatives, heirs, successors and assigns. Nothing in this Agreement, express or implied, is intended to\nconfer upon any party, other than the Employee, Employer and Employer’s Affiliates who may subsequently employ Employee (and their respective\nheirs, legal representatives, successors and assigns), any rights, remedies, obligations or liabilities under or by reason of this Agreement. This\nAgreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one\nand the same instrument, and in making proof hereof, it shall not be necessary to produce or account for more than one such counterpart.\n“Affiliate” means, for purposes of this Agreement, Renewable Energy Group, Inc. (if not the Employer), and any corporation, limited liability\ncompany or other entity directly or indirectly controlled by, or under common control with, Renewable Energy Group, Inc. as of the date on which,\nor at any time during the period for which, the determination of affiliation is being made. For purposes of this definition, the term “control”\n(including the correlative meanings of the terms “controlled by” and “under common control with”), as used with respect to any entity, means the\npossession, directly or indirectly, of the power to direct or cause the direction of the management policies of such entity, whether through the\nownership of voting securities or by contract or otherwise.\n10. Section 409A. Anything in this Agreement to the contrary notwithstanding:\n(a) This section is intended to help ensure that compensation to Employee pursuant to this Agreement either is paid in compliance with, or is\nexempt from, Section 409A of the Internal Revenue Code of 1986, as amended and the rules and regulations promulgated thereunder (collectively,\n“Section 409A”). For the purposes of determining when amounts otherwise payable on account of Employee’s termination of employment under this\nAgreement will be paid, which amounts become due because of Employee’s termination of employment, “termination of employment” or words of\nsimilar import, as used in this Agreement, shall be construed as the date that the Employee first incurs a “separation from service” for purposes of\nSection 409A on or following termination of employment.\n(b) If at the time of Employee’s separation from service within the meaning of Section 409A, Employee is a “specified employee” within the\nmeaning of Section 409A(a)(2)(B)(i) and if any payment that Employee becomes entitled to under this Agreement is considered deferred\ncompensation subject to Section 409A(a), then no such payment shall be payable prior to the date that is the earlier of (i) six months and\n5\none day after Employee’s date of termination, and (ii) Employee’s death, and the initial Payment shall include a catch-up amount covering amounts\nthat would otherwise have been paid during the first six-month period but for the application of this Section 10. For purposes of the application of\nSection 409A, each Salary Continuation payment under Section 7 shall constitute a separate payment.\n(c) The parties intend that this Agreement will be administered in accordance with Section 409A. The parties agree that this Agreement may be\namended, as reasonably requested by either party, as may be necessary to fully comply with Section 409A in order to preserve the payments\nprovided hereunder, without additional cost to either party.\nIN WITNESS WHEREOF, the Employer and Employee have executed this Agreement on the dates set forth below their respective signatures.\nREG MARKETING & LOGISTICS GROUP, LLC\nEMPLOYEE\nBy\nDated:\nDated:\n6
+071c4b0c3b3ba9838d0665e17ca7f15f.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is dated and effective as of August 3, 2009 (the “Effective Date”), between Aspect Medical\nSystems, Inc., a Delaware corporation (“Aspect”), and Tyco Healthcare Group LP d/b/a Covidien (“Receiving Party”).\nBackground\n1. Receiving Party has requested Aspect to provide certain information, which is either confidential or proprietary in nature, in connection\nwith its consideration of a possible negotiated transaction between the two companies.\n2. Aspect desires to protect the confidentiality of the information it provides and to have Receiving Party take or abstain from taking\ncertain actions in accordance with the terms of this Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants and promises contained in this Agreement and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\nSection 1. Definitions.\n(a)\n“Evaluation Material” means any information concerning Aspect (whether prepared by Aspect, its Representatives or otherwise and\nirrespective of the form of communication) that is furnished to Receiving Party or any of its Representatives by or on behalf of Aspect on or after\nJanuary 15, 2009, and all notes, analyses, compilations, studies, interpretations, memoranda, reports or other documents (regardless of the form\nthereof) prepared by Receiving Party or its Representatives which contain, reflect or are based upon, in whole or in part, any information furnished\nto Receiving Party or its Representatives pursuant to this Agreement; provided, however, that “Evaluation Material” does not include information of\nAspect which:\n(i) is or becomes generally available to the public other than as a result of a disclosure directly or indirectly by Receiving Party or\nits Representatives in violation of this Agreement;\n(ii) was within Receiving Party’s possession prior to it being furnished to Receiving Party or its Representatives by or on behalf of\nAspect pursuant to this Agreement, provided that such information is not subject to another confidentiality agreement with or other contractual, legal\nor fiduciary obligation of confidentiality to Aspect or any other party with respect to such information;\n(iii) becomes available to Receiving Party on a non-confidential basis from a source other than Aspect or any of its\nRepresentatives, provided that such source was not known to Receiving Party at the time of the disclosure to be bound by a confidentiality\nagreement with or other contractual, legal or fiduciary obligation of confidentiality to Aspect or any other party with respect to such information; or\n(iv) is independently developed by Receiving Party or others on its behalf without reference to or reliance upon any information\nfurnished to Receiving Party or any of its Representatives by or on behalf of Aspect.\n(b) “Representatives” means, with respect to a party, its direct and indirect parents and subsidiaries, and its and their respective directors,\nofficers, affiliates, employees, partners, agents, commercial banks or other similar lenders providing debt (but not equity) financing, or advisors\n(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors).\n(c) The term “person” shall be broadly interpreted to include the media and any corporation, company, partnership, joint venture, group,\nlimited liability company other entity or individual and the term “affiliate” has the meaning set forth in Rule 12b-2 under the Securities Exchange\nAct of 1934 (the “Exchange Act”).\nSection 2. Use and Disclosure of Evaluation Material.\n(a) Except as otherwise provided in this Agreement, Receiving Party hereby agrees that it and its Representatives shall:\n(i) use the Evaluation Material solely for the purpose of evaluating and negotiating a possible transaction between the parties;\n(ii) keep the Evaluation Material confidential in accordance with the terms of this Agreement; and\n(iii) not disclose any Evaluation Material except in accordance with the terms of this Agreement;\nprovided, however, that Receiving Party may disclose any Evaluation Material to Receiving Party’s Representatives who need to know such\ninformation for the sole purpose of evaluating and negotiating a possible transaction between the parties, provided that Receiving Party’s\nRepresentatives are informed of the confidential nature of such Evaluation Material.\n(b) Except as otherwise provided in this Agreement, or as otherwise required by applicable law or stock exchange requirement, neither\nparty nor any of its Representatives shall disclose to any other person (i) the existence of this Agreement, (ii) the fact that Evaluation Material has\nbeen made available to Receiving Party or its Representatives, (iii) that discussions are taking place concerning a possible negotiated transaction\nbetween the parties, (iv) any of the terms, conditions or other facts with respect thereto, or (v) the status of such discussions (collectively, the\n“Transaction Information”).\n(c) Receiving Party shall be liable to Aspect for any use or disclosure by any of Receiving Party’s Representatives of (i) Evaluation\nMaterial or (ii) Transaction Information, which if done by Receiving Party itself would be a breach of this Agreement. Aspect shall be\n-2-\nliable to Receiving Party for any use or disclosure by any of Aspect’s Representatives of Transaction Information, which if done by Aspect itself\nwould be a breach of this Agreement. Each party agrees, at its sole expense, to take reasonable measures (including but not limited to court\nproceedings) to restrain its Representatives from prohibited or unauthorized disclosure or use of Evaluation Material and/or the Transaction\nInformation, as the case may be.\n(d) To the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any\nother applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the attorney-\nclient privilege, work product doctrine and other applicable privilege shall remain entitled to such protection under these privileges, this agreement,\nand under the joint defense doctrine.\nSection 3. Legally Required Disclosure.\nIf Receiving Party or any of its Representatives is requested or, upon the advice of its outside legal counsel, required under any applicable law,\nregulation (including, without limitation, any rule, regulation or policy statement of any organized securities exchange, market or automated\nquotation system on which any of a party’s securities are listed or quoted) or valid legal process to disclose any of the Evaluation Material or the\nTransaction Information, Receiving Party shall, except as prohibited by law, provide Aspect with prompt written notice of any such request or\nrequirement so that Aspect may seek, at Aspect’s expense, a protective order or other remedy and/or waive compliance with the provisions of this\nAgreement. If Aspect seeks a protective order or other remedy, Receiving Party shall provide such cooperation as Aspect shall reasonably request. If,\nin the absence of a protective order or other remedy or the receipt by Receiving Party of a waiver from Aspect, Receiving Party or any of its\nRepresentatives is nonetheless, in the opinion of its outside legal counsel, legally compelled to disclose Evaluation Material or Transaction\nInformation to any tribunal or other entity, Receiving Party or its Representatives may, without liability hereunder, disclose to such tribunal or other\nentity only that portion of the Evaluation Material or Transaction Information which such counsel advises Receiving Party or such Representatives is\nlegally required to be disclosed, provided that Receiving Party and its Representatives shall exercise reasonable best efforts to minimize the\ndisclosure of the Evaluation Material or Transaction Information and to preserve the confidentiality thereof.\nSection 4. Return or Destruction of Evaluation Material.\nAt any time upon the written request of Aspect for any reason:\n(a) Receiving Party shall promptly (and in no event later than 15 business days after such request), at its election, either return to Aspect or\ndestroy (in which case, such destruction shall be certified in writing to Aspect by an authorized officer of Receiving Party) all Evaluation Material\n(and all copies thereof) furnished to Receiving Party or its Representatives by or on\n-3-\nbehalf of Aspect and, except as provided in the last paragraph of this Section 4, shall not retain any copies, extracts or other reproductions (including\nEvaluation Material stored in any computer or other electronic storage device) in whole or in part of such material; and\n(b) Receiving Party and its Representatives shall destroy all Evaluation Material prepared by Receiving Party or its Representatives, and,\nexcept as provided in the last paragraph of this Section 4, shall not retain any copies, extracts or other reproductions (including Evaluation Material\nstored in any computer or other electronic storage device) in whole or in part of such material and such destruction shall be certified in writing to\nAspect by an authorized officer of Receiving Party upon request of Aspect.\nNotwithstanding the foregoing, Receiving Party and any of its Representatives that are accounting firms or financial institutions may retain solely for\ncompliance purposes copies of the Evaluation Material in accordance with policies and procedures implemented by such persons or to comply with\nlaw, regulation or professional standards; provided, however, that any Evaluation Material so retained will continue to be held confidential pursuant\nto the terms of this Agreement under the sole control of the Receiving Party’s or such Representative’s general counsel, as the case may be. With\nregard to destruction of Evaluation Material in electronic form, Receiving Party and its Representatives shall be required to perform customary\n“delete” functions made available by the software vendor for use by the end-user of the relevant software, but the Receiving Party and its\nRepresentatives, as the case may be, shall not be required to delete all electronic copies that may be available, for example in backups or archives, or\nwhich are retrievable using forensic computer recovery techniques. Notwithstanding the return or destruction of Evaluation Material, Receiving\nParty and its Representatives shall continue to be bound by their obligations hereunder.\nSection 5. Term.\nThis Agreement shall apply to all Evaluation Material disclosed prior to the date that is 12 months after the Effective Date. Unless otherwise\nexpressly stated herein, the obligations set forth in this Agreement shall continue until the third anniversary of the Effective Date; provided, however,\nthat as to Evaluation Material that is subject to a confidentiality obligation on the part of Aspect that extends beyond the third anniversary of the\nEffective Date, Aspect shall so notify Receiving Party of such extended confidentiality obligation and Aspect shall not disclose such Evaluation\nMaterial to Receiving Party until Receiving Party agrees to abide by the obligations set forth in this Agreement with respect to such Evaluation\nMaterial for the term of Aspect’s confidentiality obligation applicable to such Evaluation Material, in which event the term of this Agreement shall\nbe deemed to be so extended as to such Evaluation Material.\nSection 6. Nonsolicitation.\nFor a period of one year from the Effective Date, neither Receiving Party nor its affiliates shall solicit to employ any person who (i) is, or\nwithin the prior six months was, an officer of Aspect or any of its subsidiaries or (ii) who is, or within the prior six months was, employed in any\ncapacity by Aspect or any of its subsidiaries and with whom Representatives of Receiving Party came in contact or first identified during the process\nof considering a transaction contemplated by this Agreement; provided, however, that this paragraph shall not prevent\n-4-\nReceiving Party or its affiliates from hiring a person identified in clause (i) or (ii) (a “Covered Person”) if: (1) such Covered Person contacts\nReceiving Party or its Representatives on the Covered Person’s own initiative without any direct or indirect solicitation by or encouragement from\nReceiving Party or its Representatives; (2) the personnel of Receiving Party who solicited the Covered Person have no knowledge of any Evaluation\nMaterial and none of the personnel of Receiving Party who have knowledge of any Evaluation Material have actual advance knowledge of such\nsolicitation; (3) such Covered Person responds to a general solicitation of employment not specifically directed towards Aspect or any of its\nsubsidiaries or particular employees of Aspect or any of its subsidiaries or (4) on the date of this Agreement such Covered Person is actively engaged\nin on-going employment discussions with Receiving Party or one of its affiliates outside of the context of the transaction contemplated by this\nAgreement.\nSection 7. Standstill.\nReceiving Party agrees that, for a period of 15 months from the Effective Date, unless a “Significant Event” (as defined below) shall have\noccurred or Receiving Party shall have been specifically invited in writing by Aspect, neither Receiving Party nor any of its affiliates shall in any\nmanner, directly or indirectly:\n(a)\neffect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way advise, assist or\nencourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any\nsecurities (or beneficial ownership thereof) or assets of Aspect; (ii) any tender or exchange offer, merger or other business combination involving\nAspect; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Aspect; or (iv) any\n“solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting\nsecurities of Aspect;\n(b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to any securities of Aspect;\n(c)\notherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of Aspect;\n(d) take any action that could reasonably be expected to require Aspect to make a public announcement regarding any of the types of\nmatters set forth in paragraph (a) above; or\n(e)\nenter into any discussions or arrangements with any person with respect to any of the foregoing.\nReceiving Party also agrees during such period not to request Aspect (or its Representatives), directly or indirectly, to amend or waive any\nprovision of this section (including this sentence).\nFor purposes of this Agreement, (i) “Significant Event” shall mean any of (A) the acquisition by any person or “13D Group” (as defined\nbelow) (other than Receiving Party or any of its affiliates) of beneficial ownership of “Voting Securities” (as defined below) of Aspect representing\nmore than 30% of the then outstanding Voting Securities of Aspect; (B) the\n-5-\nannouncement or commencement by any person or 13D Group (other than Receiving Party or any of its affiliates) of a tender or exchange offer to\nacquire Voting Securities of Aspect which, if successful, would result in such person or 13D Group owning, when combined with any other Voting\nSecurities of Aspect owned by such person or 13D Group, more than 50% of the then outstanding Voting Securities of Aspect; or (C) the entry into\nby Aspect, or determination by Aspect to seek to enter into, any merger, sale or other business combination transaction pursuant to which the\noutstanding shares of common stock of Aspect would be converted into cash or securities of another person or 13D Group or more than 50% of the\nthen outstanding shares of common stock of Aspect would be owned by persons other than the then current holders of shares of common stock\nAspect, or which would result in all or substantially all of Aspect’s assets being sold to any person or 13D Group; (ii) “Voting Securities” shall mean,\nat any time, shares of any class of capital stock of Aspect which are then entitled to vote generally in the election of directors; provided, that for\npurposes of this definition any securities which at such time are convertible or exchangeable into or exercisable for shares of common stock of\nAspect shall be deemed to have been so converted, exchanged or exercised; and (iii) “13D Group” shall mean, with respect to the Voting Securities\nof Aspect, any group of persons formed for the purpose of acquiring, holding, voting or disposing of such Voting Securities which would be required\nunder Section 13(d) of the Exchange Act and the rules and regulations thereunder to file a statement on Schedule 13D with the SEC as a “person”\nwithin the meaning of Section 13(d)(3) of the Exchange Act if such group beneficially owned Voting Securities representing more than 5% of the\ntotal combined voting power of all such Voting Securities then outstanding.\nReceiving Party represents and warrants that, as of the date of this Agreement, neither Receiving Party nor any of its controlled or controlling\naffiliates owns, of record or beneficially, any voting securities of Aspect, or any securities convertible into or exercisable for any voting securities of\nAspect.\nSection 8. Trading in Securities.\nReceiving Party acknowledges that it is aware (and that its Representatives who are apprised of a possible transaction between the parties have\nbeen or will be advised) that applicable securities laws prohibit any person who is aware of material, non-public information about a company\nobtained directly or indirectly from that company from purchasing or selling securities of such company or from communicating such information to\nany other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nSection 9. No Representations and Warranties; Relationship to Definitive Agreement.\n(a) Receiving Party understands and acknowledges that neither Aspect nor any of its Representatives has made or is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. Receiving Party agrees that neither\nAspect nor its Representatives shall have any liability to Receiving Party or any of its Representatives or any other person relating to or resulting\nfrom the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a\ndefinitive agreement between the parties, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will\nhave any legal effect.\n-6-\nFor purposes of this Agreement, the term “definitive agreement” does not include any executed letter of intent or any other preliminary written\nagreement, nor does it include any written or verbal acceptance of any offer or bid made by one party.\n(b) Receiving Party understands and agrees that no contract or agreement, express or implied, providing for any transaction involving the\nparties shall be deemed to exist unless and until a definitive agreement has been executed and delivered. Receiving Party also agrees that unless and\nuntil a definitive agreement regarding a transaction between the parties has been executed and delivered, Aspect will not be under any legal\nobligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement or any other written or oral communication with\nrespect to such transaction, except for the matters specifically agreed to herein.\n(c) Aspect reserves the right, in its sole discretion, to reject any and all proposals made by Receiving Party with regard to a transaction\nbetween the parties and to terminate discussions and negotiations with Receiving Party at any time and for any reason or no reason. Receiving Party\nunderstands that Aspect and its Representatives shall be free to conduct any process for any transaction in such manner as they, in their sole\ndiscretion, shall determine (including, without limitation, negotiating with other interested parties and entering into a preliminary or definitive\nagreement without prior notice to Receiving Party or any other person) and that any procedures relating to such process or transaction may be\nchanged at any time without notice to Receiving Party or any other person.\nSection 10. Contacts and Communications.\nReceiving Party agrees that, prior to the date that is 15 months after the Effective Date, all contacts or communications by it or its\nRepresentatives with Aspect regarding a possible transaction between the parties or the Evaluation Material, all requests for additional information,\nfacility tours or management meetings and all discussions or questions regarding procedures with respect to a possible transaction, will be submitted\nor directed only to (i) Aspect’s Chief Executive Officer or (ii) as Aspect shall otherwise instruct in writing. Without the express prior consent of\nAspect, Receiving Party agrees that it will not, directly or indirectly, contact or communicate with any officer, employee, director, stockholder, agent,\ncustomer or business partner of Aspect regarding Evaluation Material or a possible transaction between the parties.\nSection 11. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the\nconflicts of law principles thereof.\n(b) Receiving Party recognizes and acknowledges the competitive value and confidential nature of the Evaluation Material and that\nirreparable damage may result to Aspect if information contained therein or derived therefrom is disclosed to any person except as herein provided\nor is used for any purpose other than the evaluation of a possible negotiated transaction between the parties. Receiving Party further understands and\nagrees that money damages may not be a sufficient remedy for any breach of this Agreement by Receiving Party or any of\n-7-\nReceiving Party’s Representatives and that Aspect may be entitled to equitable relief, including injunction and specific performance, as a remedy for\nany such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach by Receiving Party of this Agreement, but shall be in\naddition to all of Aspect’s other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent\njurisdiction determines that Receiving Party has breached this Agreement, then Receiving Party shall be liable for and pay to Aspect the reasonable\nlegal fees and disbursements that Aspect has incurred in connection with such litigation, including any appeal therefrom.\n(c) This Agreement may not be assigned in whole or in part by Receiving Party without the prior written consent of Aspect; provided that\nno such consent shall be required, and this Agreement may be assigned by Receiving Party, in the case of a sale by Receiving Party of all or\nsubstantially all of its business or assets, whether by merger, sale of assets or otherwise. Subject to the foregoing, this Agreement shall be binding\nupon and inure to the benefit of the parties and their respective successors and assigns.\n(d) This Agreement contains the entire agreement between the parties concerning the subject matter hereof. No provision of this\nAgreement may be waived or amended except by the express written consent of the parties. No failure or delay by Aspect in exercising any right,\npower or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege hereunder.\n(e) All notices and other communications hereunder shall be in writing. Any notice or other communication hereunder shall be deemed\nduly delivered one business day after it is sent for next business day delivery via a reputable nationwide overnight courier service, in each case to the\nintended recipient as set forth below:\nIf to Aspect:\nAspect Medical Systems, Inc.\nOne Upland Road\nNorwood, MA 02062\nAttention: J. Neal Armstrong\nVice President and Chief Financial Officer\nTelephone: (617) 559-7000\nCopy to:\nWilmer Cutler Pickering Hale and Dorr LLP\n60 State Street\nBoston, MA 02109\nAttn: Susan W. Murley, Esq.\nTelephone: (617) 526-6000\nIf to Receiving Party:\nTyco Healthcare Group LP\nd/b/a Covidien\n15 Hampshire Street\nMansfield, MA 02048\nAttention: Senior Vice President, Strategy & Business Development\nTelephone: (508) 261-8000\nCopy to:\nTyco Healthcare Group LP\nd/b/a Covidien\n15 Hampshire Street\nMansfield, MA 02048\nAttention: Chief Mergers & Acquisitions Counsel\nTelephone: (508) 261-8000\n-8-\nEither party may give any notice or other communication hereunder using any other means (including personal delivery, expedited courier,\nmessenger service, telecopy, telex, ordinary mail, or electronic mail), but no such notice or other communication shall be deemed duly given unless\nand until the party for whom it is intended actually receives it. Any party may change the address to which notices and other communications\nhereunder are to be delivered by giving the other party notice in the manner herein set forth.\n(f) For the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed to\nbe an original and both of which, taken together, shall constitute one agreement binding on both parties.\n(g) The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or\ninterpretation of this Agreement.\n-9-\nEXECUTED as of the date first above written.\nASPECT MEDICAL SYSTEMS, INC.\nBy:\n/s/ Nassib Chamoun\nName:\nNassib Chamoun\nTitle:\nPresident & CEO\nTYCO HEALTHCARE GROUP LP\nD/B/A COVIDIEN\nBy:\n/s/ Amy McBride-Wendell\nName:\nAmy McBride-Wendell\nTitle:\nSVP Strategy & BD&L\n-10-	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement™) is dated and effective as of August 3, 2009 (the “Effective Date”), between Aspect Medical\nSystems, Inc., a Delaware corporation (“Aspect”), and Tyco Healthcare Group LP d/b/a Covidien (“Receiving Party”).\nBackground\n1. Receiving Party has requested Aspect to provide certain information, which is either confidential or proprietary in nature, in connection\nwith its consideration of a possible negotiated transaction between the two companies.\n2. Aspect desires to protect the confidentiality of the information it provides and to have Receiving Party take or abstain from taking\ncertain actions in accordance with the terms of this Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants and promises contained in this Agreement and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\nSection 1. Definitions.\n@ “Evaluation Material” means any information concerning Aspect (whether prepared by Aspect, its Representatives or otherwise and\nirrespective of the form of communication) that is furnished to Receiving Party or any of its Representatives by or on behalf of Aspect on or after\nJanuary 15, 2009, and all notes, analyses, compilations, studies, interpretations, memoranda, reports or other documents (regardless of the form\nthereof) prepared by Receiving Party or its Representatives which contain, reflect or are based upon, in whole or in part, any information furnished\nto Receiving Party or its Representatives pursuant to this Agreement; provided, however, that “Evaluation Material” does not include information of\nAspect which:\n@ is or becomes generally available to the public other than as a result of a disclosure directly or indirectly by Receiving Party or\nits Representatives in violation of this Agreement;\n(i)  was within Receiving Party’s possession prior to it being furnished to Receiving Party or its Representatives by or on behalf of\nAspect pursuant to this Agreement, provided that such information is not subject to another confidentiality agreement with or other contractual, legal\nor fiduciary obligation of confidentiality to Aspect or any other party with respect to such information;\n(iii)  becomes available to Receiving Party on a non-confidential basis from a source other than Aspect or any of its\nRepresentatives, provided that such source was not known to Receiving Party at the time of the disclosure to be bound by a confidentiality\nagreement with or other contractual, legal or fiduciary obligation of confidentiality to Aspect or any other party with respect to such information; or\n(iv)  is independently developed by Receiving Party or others on its behalf without reference to or reliance upon any information\nfurnished to Receiving Party or any of its Representatives by or on behalf of Aspect.\n(b) “Representatives” means, with respect to a party, its direct and indirect parents and subsidiaries, and its and their respective directors,\nofficers, affiliates, employees, partners, agents, commercial banks or other similar lenders providing debt (but not equity) financing, or advisors\n(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors).\n(o) The term “person” shall be broadly interpreted to include the media and any corporation, company, partnership, joint venture, group,\nlimited liability company other entity or individual and the term “affiliate” has the meaning set forth in Rule 12b-2 under the Securities Exchange\nAct of 1934 (the “Exchange Act”).\nSection 2. Use and Disclosure of Evaluation Material.\n@ Except as otherwise provided in this Agreement, Receiving Party hereby agrees that it and its Representatives shall:\n@ use the Evaluation Material solely for the purpose of evaluating and negotiating a possible transaction between the parties;\n(i)  keep the Evaluation Material confidential in accordance with the terms of this Agreement; and\n(iili)  not disclose any Evaluation Material except in accordance with the terms of this Agreement;\nprovided, however, that Receiving Party may disclose any Evaluation Material to Receiving Party’s Representatives who need to know such\ninformation for the sole purpose of evaluating and negotiating a possible transaction between the parties, provided that Receiving Party’s\nRepresentatives are informed of the confidential nature of such Evaluation Material.\n \n(b) Except as otherwise provided in this Agreement, or as otherwise required by applicable law or stock exchange requirement, neither\nparty nor any of its Representatives shall disclose to any other person (i) the existence of this Agreement, (ii) the fact that Evaluation Material has\nbeen made available to Receiving Party or its Representatives, (iii) that discussions are taking place concerning a possible negotiated transaction\nbetween the parties, (iv) any of the terms, conditions or other facts with respect thereto, or (v) the status of such discussions (collectively, the\n“Transaction Information™).\n(o) Receiving Party shall be liable to Aspect for any use or disclosure by any of Receiving Party’s Representatives of (i) Evaluation\nMaterial or (ii) Transaction Information, which if done by Receiving Party itself would be a breach of this Agreement. Aspect shall be\n_2-\nliable to Receiving Party for any use or disclosure by any of Aspect’s Representatives of Transaction Information, which if done by Aspect itself\nwould be a breach of this Agreement. Each party agrees, at its sole expense, to take reasonable measures (including but not limited to court\nproceedings) to restrain its Representatives from prohibited or unauthorized disclosure or use of Evaluation Material and/or the Transaction\nInformation, as the case may be.\n(d) To the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any\nother applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the attorney-\nclient privilege, work product doctrine and other applicable privilege shall remain entitled to such protection under these privileges, this agreement,\nand under the joint defense doctrine.\nSection 3. Legally Required Disclosure.\nIf Receiving Party or any of its Representatives is requested or, upon the advice of its outside legal counsel, required under any applicable law,\nregulation (including, without limitation, any rule, regulation or policy statement of any organized securities exchange, market or automated\nquotation system on which any of a party’s securities are listed or quoted) or valid legal process to disclose any of the Evaluation Material or the\nTransaction Information, Receiving Party shall, except as prohibited by law, provide Aspect with prompt written notice of any such request or\nrequirement so that Aspect may seek, at Aspect’s expense, a protective order or other remedy and/or waive compliance with the provisions of this\nAgreement. If Aspect seeks a protective order or other remedy, Receiving Party shall provide such cooperation as Aspect shall reasonably request. If,\nin the absence of a protective order or other remedy or the receipt by Receiving Party of a waiver from Aspect, Receiving Party or any of its\nRepresentatives is nonetheless, in the opinion of its outside legal counsel, legally compelled to disclose Evaluation Material or Transaction\nInformation to any tribunal or other entity, Receiving Party or its Representatives may, without liability hereunder, disclose to such tribunal or other\nentity only that portion of the Evaluation Material or Transaction Information which such counsel advises Receiving Party or such Representatives is\nlegally required to be disclosed, provided that Receiving Party and its Representatives shall exercise reasonable best efforts to minimize the\ndisclosure of the Evaluation Material or Transaction Information and to preserve the confidentiality thereof.\nSection 4. Return or Destruction of Evaluation Material.\nAt any time upon the written request of Aspect for any reason:\n@ Receiving Party shall promptly (and in no event later than 15 business days after such request), at its election, either return to Aspect or\ndestroy (in which case, such destruction shall be certified in writing to Aspect by an authorized officer of Receiving Party) all Evaluation Material\n(and all copies thereof) furnished to Receiving Party or its Representatives by or on\n_3-\nbehalf of Aspect and, except as provided in the last paragraph of this Section 4, shall not retain any copies, extracts or other reproductions (including\nEvaluation Material stored in any computer or other electronic storage device) in whole or in part of such material; and\n(b) Receiving Party and its Representatives shall destroy all Evaluation Material prepared by Receiving Party or its Representatives, and,\nexcept as provided in the last paragraph of this Section 4, shall not retain any copies, extracts or other reproductions (including Evaluation Material\nstored in any computer or other electronic storage device) in whole or in part of such material and such destruction shall be certified in writing to\nAspect by an authorized officer of Receiving Party upon request of Aspect.\nNotwithstanding the foregoing, Receiving Party and any of its Representatives that are accounting firms or financial institutions may retain solely for\ncompliance purposes copies of the Evaluation Material in accordance with policies and procedures implemented by such persons or to comply with\nlaw, regulation or professional standards; provided, however, that any Evaluation Material so retained will continue to be held confidential pursuant\nto the terms of this Agreement under the sole control of the Receiving Party’s or such Representative’s general counsel, as the case may be. With\nregard to destruction of Evaluation Material in electronic form, Receiving Party and its Representatives shall be required to perform customary\n“delete” functions made available by the software vendor for use by the end-user of the relevant software, but the Receiving Party and its\nRepresentatives, as the case may be, shall not be required to delete all electronic copies that may be available, for example in backups or archives, or\nwhich are retrievable using forensic computer recovery techniques. Notwithstanding the return or destruction of Evaluation Material, Receiving\nParty and its Representatives shall continue to be bound by their obligations hereunder.\nSection 5. Term.\nThis Agreement shall apply to all Evaluation Material disclosed prior to the date that is 12 months after the Effective Date. Unless otherwise\nexpressly stated herein, the obligations set forth in this Agreement shall continue until the third anniversary of the Effective Date; provided, however,\nthat as to Evaluation Material that is subject to a confidentiality obligation on the part of Aspect that extends beyond the third anniversary of the\nEffective Date, Aspect shall so notify Receiving Party of such extended confidentiality obligation and Aspect shall not disclose such Evaluation\nMaterial to Receiving Party until Receiving Party agrees to abide by the obligations set forth in this Agreement with respect to such Evaluation\nMaterial for the term of Aspect’s confidentiality obligation applicable to such Evaluation Material, in which event the term of this Agreement shall\nbe deemed to be so extended as to such Evaluation Material.\nSection 6. Nonsolicitation.\nFor a period of one year from the Effective Date, neither Receiving Party nor its affiliates shall solicit to employ any person who (i) is, or\nwithin the prior six months was, an officer of Aspect or any of its subsidiaries or (ii) who is, or within the prior six months was, employed in any\ncapacity by Aspect or any of its subsidiaries and with whom Representatives of Receiving Party came in contact or first identified during the process\nof considering a transaction contemplated by this Agreement; provided, however, that this paragraph shall not prevent\n \n_4-\nReceiving Party or its affiliates from hiring a person identified in clause (i) or (ii) (a “Covered Person”) if: (1) such Covered Person contacts\nReceiving Party or its Representatives on the Covered Person’s own initiative without any direct or indirect solicitation by or encouragement from\nReceiving Party or its Representatives; (2) the personnel of Receiving Party who solicited the Covered Person have no knowledge of any Evaluation\nMaterial and none of the personnel of Receiving Party who have knowledge of any Evaluation Material have actual advance knowledge of such\nsolicitation; (3) such Covered Person responds to a general solicitation of employment not specifically directed towards Aspect or any of its\nsubsidiaries or particular employees of Aspect or any of its subsidiaries or (4) on the date of this Agreement such Covered Person is actively engaged\nin on-going employment discussions with Receiving Party or one of its affiliates outside of the context of the transaction contemplated by this\nAgreement.\nSection 7. Standstill.\nReceiving Party agrees that, for a period of 15 months from the Effective Date, unless a “Significant Event” (as defined below) shall have\noccurred or Receiving Party shall have been specifically invited in writing by Aspect, neither Receiving Party nor any of its affiliates shall in any\nmanner, directly or indirectly:\n@ effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way advise, assist or\nencourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any\nsecurities (or beneficial ownership thereof) or assets of Aspect; (ii) any tender or exchange offer, merger or other business combination involving\nAspect; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Aspect; or (iv) any\n“solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting\nsecurities of Aspect;\n(b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to any securities of Aspect;\n(o) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of Aspect;\n(d) take any action that could reasonably be expected to require Aspect to make a public announcement regarding any of the types of\nmatters set forth in paragraph (a) above; or\n(e) enter into any discussions or arrangements with any person with respect to any of the foregoing.\nReceiving Party also agrees during such period not to request Aspect (or its Representatives), directly or indirectly, to amend or waive any\nprovision of this section (including this sentence).\nFor purposes of this Agreement, (i) “Significant Event” shall mean any of (A) the acquisition by any person or “13D Group” (as defined\nbelow) (other than Receiving Party or any of its affiliates) of beneficial ownership of “Voting Securities” (as defined below) of Aspect representing\nmore than 30% of the then outstanding Voting Securities of Aspect; (B) the\n_5.\nannouncement or commencement by any person or 13D Group (other than Receiving Party or any of its affiliates) of a tender or exchange offer to\nacquire Voting Securities of Aspect which, if successful, would result in such person or 13D Group owning, when combined with any other Voting\nSecurities of Aspect owned by such person or 13D Group, more than 50% of the then outstanding Voting Securities of Aspect; or (C) the entry into\nby Aspect, or determination by Aspect to seek to enter into, any merger, sale or other business combination transaction pursuant to which the\noutstanding shares of common stock of Aspect would be converted into cash or securities of another person or 13D Group or more than 50% of the\nthen outstanding shares of common stock of Aspect would be owned by persons other than the then current holders of shares of common stock\nAspect, or which would result in all or substantially all of Aspect’s assets being sold to any person or 13D Group; (ii) “Voting Securities” shall mean,\nat any time, shares of any class of capital stock of Aspect which are then entitled to vote generally in the election of directors; provided, that for\npurposes of this definition any securities which at such time are convertible or exchangeable into or exercisable for shares of common stock of\nAspect shall be deemed to have been so converted, exchanged or exercised; and (iii) “13D Group” shall mean, with respect to the Voting Securities\nof Aspect, any group of persons formed for the purpose of acquiring, holding, voting or disposing of such Voting Securities which would be required\nunder Section 13(d) of the Exchange Act and the rules and regulations thereunder to file a statement on Schedule 13D with the SEC as a “person”\nwithin the meaning of Section 13(d)(3) of the Exchange Act if such group beneficially owned Voting Securities representing more than 5% of the\ntotal combined voting power of all such Voting Securities then outstanding.\nReceiving Party represents and warrants that, as of the date of this Agreement, neither Receiving Party nor any of its controlled or controlling\naffiliates owns, of record or beneficially, any voting securities of Aspect, or any securities convertible into or exercisable for any voting securities of\nAspect.\nSection 8. Trading in Securities.\nReceiving Party acknowledges that it is aware (and that its Representatives who are apprised of a possible transaction between the parties have\nbeen or will be advised) that applicable securities laws prohibit any person who is aware of material, non-public information about a company\nobtained directly or indirectly from that company from purchasing or selling securities of such company or from communicating such information to\nany other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n@ Receiving Party understands and acknowledges that neither Aspect nor any of its Representatives has made or is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. Receiving Party agrees that neither\nAspect nor its Representatives shall have any liability to Receiving Party or any of its Representatives or any other person relating to or resulting\nfrom the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a\ndefinitive agreement between the parties, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will\nhave any legal effect.\n-6-\nFor purposes of this Agreement, the term “definitive agreement” does not include any executed letter of intent or any other preliminary written\nagreement, nor does it include any written or verbal acceptance of any offer or bid made by one party.\n(b) Receiving Party understands and agrees that no contract or agreement, express or implied, providing for any transaction involving the\nparties shall be deemed to exist unless and until a definitive agreement has been executed and delivered. Receiving Party also agrees that unless and\nuntil a definitive agreement regarding a transaction between the parties has been executed and delivered, Aspect will not be under any legal\nobligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement or any other written or oral communication with\nrespect to such transaction, except for the matters specifically agreed to herein.\n(o) Aspect reserves the right, in its sole discretion, to reject any and all proposals made by Receiving Party with regard to a transaction\nbetween the parties and to terminate discussions and negotiations with Receiving Party at any time and for any reason or no reason. Receiving Party\nunderstands that Aspect and its Representatives shall be free to conduct any process for any transaction in such manner as they, in their sole\ndiscretion, shall determine (including, without limitation, negotiating with other interested parties and entering into a preliminary or definitive\nagreement without prior notice to Receiving Party or any other person) and that any procedures relating to such process or transaction may be\nchanged at any time without notice to Receiving Party or any other person.\nSection 10. Contacts and Communications.\nReceiving Party agrees that, prior to the date that is 15 months after the Effective Date, all contacts or communications by it or its\nRepresentatives with Aspect regarding a possible transaction between the parties or the Evaluation Material, all requests for additional information,\nfacility tours or management meetings and all discussions or questions regarding procedures with respect to a possible transaction, will be submitted\nor directed only to (i) Aspect’s Chief Executive Officer or (ii) as Aspect shall otherwise instruct in writing. Without the express prior consent of\nAspect, Receiving Party agrees that it will not, directly or indirectly, contact or communicate with any officer, employee, director, stockholder, agent,\ncustomer or business partner of Aspect regarding Evaluation Material or a possible transaction between the parties.\nSection 11. Miscellaneous.\n@ This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the\nconflicts of law principles thereof.\n(b) Receiving Party recognizes and acknowledges the competitive value and confidential nature of the Evaluation Material and that\nirreparable damage may result to Aspect if information contained therein or derived therefrom is disclosed to any person except as herein provided\nor is used for any purpose other than the evaluation of a possible negotiated transaction between the parties. Receiving Party further understands and\nagrees that money damages may not be a sufficient remedy for any breach of this Agreement by Receiving Party or any of\n_7-\nReceiving Party’s Representatives and that Aspect may be entitled to equitable relief, including injunction and specific performance, as a remedy for\nany such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach by Receiving Party of this Agreement, but shall be in\naddition to all of Aspect’s other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent\njurisdiction determines that Receiving Party has breached this Agreement, then Receiving Party shall be liable for and pay to Aspect the reasonable\nlegal fees and disbursements that Aspect has incurred in connection with such litigation, including any appeal therefrom.\n(o) This Agreement may not be assigned in whole or in part by Receiving Party without the prior written consent of Aspect; provided that\nno such consent shall be required, and this Agreement may be assigned by Receiving Party, in the case of a sale by Receiving Party of all or\nsubstantially all of its business or assets, whether by merger, sale of assets or otherwise. Subject to the foregoing, this Agreement shall be binding\nupon and inure to the benefit of the parties and their respective successors and assigns.\n(d) This Agreement contains the entire agreement between the parties concerning the subject matter hereof. No provision of this\nAgreement may be waived or amended except by the express written consent of the parties. No failure or delay by Aspect in exercising any right,\npower or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege hereunder.\n(e) All notices and other communications hereunder shall be in writing. Any notice or other communication hereunder shall be deemed\nduly delivered one business day after it is sent for next business day delivery via a reputable nationwide overnight courier service, in each case to the\nintended recipient as set forth below:\nIf to Aspect: Copy to:\nAspect Medical Systems, Inc. Wilmer Cutler Pickering Hale and Dorr LLP\nOne Upland Road 60 State Street\nNorwood, MA 02062 Boston, MA 02109\nAttention: J. Neal Armstrong Attn: Susan W. Murley, Esq.\nVice President and Chief Financial Officer Telephone: (617) 526-6000\nTelephone: (617) 559-7000\nIf to Receiving Party: Copy to:\nTyco Healthcare Group LP Tyco Healthcare Group LP\nd/b/a Covidien d/b/a Covidien\n15 Hampshire Street 15 Hampshire Street\nMansfield, MA 02048 Mansfield, MA 02048\nAttention: Senior Vice President, Strategy & Business Development Attention: Chief Mergers & Acquisitions Counsel\nTelephone: (508) 261-8000 Telephone: (508) 261-8000\n-8-\nEither party may give any notice or other communication hereunder using any other means (including personal delivery, expedited courier,\nmessenger service, telecopy, telex, ordinary mail, or electronic mail), but no such notice or other communication shall be deemed duly given unless\nand until the party for whom it is intended actually receives it. Any party may change the address to which notices and other communications\nhereunder are to be delivered by giving the other party notice in the manner herein set forth.\n() For the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed to\nbe an original and both of which, taken together, shall constitute one agreement binding on both parties.\n(g) The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or\ninterpretation of this Agreement.\n-9.\nEXECUTED as of the date first above written.\n-10 -\nASPECT MEDICAL SYSTEMS, INC.\nBy: /s/ Nassib Chamoun\nName: Nassib Chamoun\nTitle: President & CEO\nTYCO HEALTHCARE GROUP LP\nD/B/A COVIDIEN\nBy: /s/ Amy McBride-Wendell\nName: Amy McBride-Wendell\nTitle: SVP Strategy & BD&L	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the "Agreement") is dated and effective as of August 3, 2009 (the "Effective Date"), between Aspect Medical\nSystems, Inc., a Delaware corporation ("Aspect"), and Tyco Healthcare Group LP d/b/a Covidien ("Receiving Party").\nBackground\n1. Receiving Party has requested Aspect to provide certain information, which is either confidential or proprietary in nature, in connection\nwith its consideration of a possible negotiated transaction between the two companies.\n2.\nAspect desires to protect the confidentiality of the information it provides and to have Receiving Party take or abstain from taking\ncertain actions in accordance with the terms of this Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants and promises contained in this Agreement and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\nSection 1. Definitions.\n(a)\n"Evaluation Material" means any information concerning Aspect (whether prepared by Aspect, its Representatives or otherwise and\nirrespective of the form of communication) that is furnished to Receiving Party or any of its Representatives by or on behalf of Aspect on or after\nJanuary 15, 2009, and all notes, analyses, compilations, studies, interpretations, memoranda, reports or other documents (regardless of the form\nthereof) prepared by Receiving Party or its Representatives which contain, reflect or are based upon, in whole or in part, any information furnished\nto Receiving Party or its Representatives pursuant to this Agreement; provided, however, that "Evaluation Material" does not include information of\nAspect which:\n(i) is or becomes generally available to the public other than as a result of a disclosure directly or indirectly by Receiving Party or\nits Representatives in violation of this Agreement;\n(ii)\nwas within Receiving Party's possession prior to it being furnished to Receiving Party or its Representatives by or on behalf of\nAspect pursuant to this Agreement, provided that such information is not subject to another confidentiality agreement with or other contractual, legal\nor fiduciary obligation of confidentiality to Aspect or any other party with respect to such information;\n(iii) becomes available to Receiving Party on a non-confidential basis from a source other than Aspect or any of its\nRepresentatives, provided that such source was not known to Receiving Party at the time of the disclosure to be bound by a confidentiality\nagreement with or other contractual, legal or fiduciary obligation of confidentiality to Aspect or any other party with respect to such information;\nor\n(iv) is independently developed by Receiving Party or others on its behalf without reference to or reliance upon any information\nfurnished to Receiving Party or any of its Representatives by or on behalf of Aspect.\n(b) "Representatives" means, with respect to a party, its direct and indirect parents and subsidiaries, and its and their respective directors,\nofficers, affiliates, employees, partners, agents, commercial banks or other similar lenders providing debt (but not equity) financing, or advisors\n(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors).\n(c)\nThe term "person" shall be broadly interpreted to include the media and any corporation, company, partnership, joint venture, group,\nlimited liability company other entity or individual and the term "affiliate" has the meaning set forth in Rule 12b-2 under the Securities Exchange\nAct of 1934 (the "Exchange Act").\nSection 2. Use and Disclosure of Evaluation Material.\n(a)\nExcept as otherwise provided in this Agreement, Receiving Party hereby agrees that it and its Representatives shall:\n(i)\nuse the Evaluation Material solely for the purpose of evaluating and negotiating a possible transaction between the parties;\n(ii)\nkeep the Evaluation Material confidential in accordance with the terms of this Agreement; and\n(iii)\nnot disclose any Evaluation Material except in accordance with the terms of this Agreement;\nprovided, however, that Receiving Party may disclose any Evaluation Material to Receiving Party's Representatives who need to know such\ninformation for the sole purpose of evaluating and negotiating a possible transaction between the parties, provided that Receiving Party's\nRepresentatives are informed of the confidential nature of such Evaluation Material.\n(b) Except as otherwise provided in this Agreement, or as otherwise required by applicable law or stock exchange requirement, neither\nparty nor any of its Representatives shall disclose to any other person (i) the existence of this Agreement, (ii) the fact that Evaluation Material has\nbeen made available to Receiving Party or its Representatives, (iii) that discussions are taking place concerning a possible negotiated transaction\nbetween the parties, (iv) any of the terms, conditions or other facts with respect thereto, or (v) the status of such discussions (collectively, the\n"Transaction Information").\n(c)\nReceiving Party shall be liable to Aspect for any use or disclosure by any of Receiving Party's Representatives of (i) Evaluation\nMaterial or (ii) Transaction Information, which if done by Receiving Party itself would be a breach of this Agreement. Aspect shall be\n2\nliable to Receiving Party for any use or disclosure by any of Aspect's Representatives of Transaction Information, which if done by Aspect itself\nwould be a breach of this Agreement. Each party agrees, at its sole expense, to take reasonable measures (including but not limited to court\nproceedings) to restrain its Representatives from prohibited or unauthorized disclosure or use of Evaluation Material and/or the Transaction\nInformation, as the case may be.\n(d)\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product\ndoctrine\nor\nany\nother applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the attorney-\nclient privilege, work product doctrine and other applicable privilege shall remain entitled to such protection under these privileges, this agreement,\nand under the joint defense doctrine.\nSection 3. Legally Required Disclosure.\nIf Receiving Party or any of its Representatives is requested or, upon the advice of its outside legal counsel, required under any applicable law,\nregulation (including, without limitation, any rule, regulation or policy statement of any organized securities exchange, market or automated\nquotation system on which any of a party's securities are listed or quoted) or valid legal process to disclose any of the Evaluation Material or the\nTransaction Information, Receiving Party shall, except as prohibited by law, provide Aspect with prompt written notice of any such request or\nrequirement so that Aspect may seek, at Aspect's expense, a protective order or other remedy and/or waive compliance with the provisions of this\nAgreement. If Aspect seeks a protective order or other remedy, Receiving Party shall provide such cooperation as Aspect shall reasonably request. If,\nin the absence of a protective order or other remedy or the receipt by Receiving Party of a waiver from Aspect, Receiving Party or any of its\nRepresentatives is nonetheless, in the opinion of its outside legal counsel, legally compelled to disclose Evaluation Material or Transaction\nInformation to any tribunal or other entity, Receiving Party or its Representatives may, without liability hereunder, disclose to such tribunal or other\nentity only that portion of the Evaluation Material or Transaction Information which such counsel advises Receiving Party or such Representatives is\nlegally required to be disclosed, provided that Receiving Party and its Representatives shall exercise reasonable best efforts to minimize the\ndisclosure of the Evaluation Material or Transaction Information and to preserve the confidentiality thereof.\nSection 4. Return or Destruction of Evaluation Material.\nAt any time upon the written request of Aspect for any reason:\n(a)\nReceiving Party shall promptly (and in no event later than 15 business days after such request), at its election, either return to Aspect or\ndestroy (in which case, such destruction shall be certified in writing to Aspect by an authorized officer of Receiving Party) all Evaluation Material\n(and all copies thereof) furnished to Receiving Party or its Representatives by or on\n3\nbehalf of Aspect and, except as provided in the last paragraph of this Section 4, shall not retain any copies, extracts or other reproductions (including\nEvaluation Material stored in any computer or other electronic storage device) in whole or in part of such material; and\n(b)\nReceiving Party and its Representatives shall destroy all Evaluation Material prepared by Receiving Party or its Representatives, and,\nexcept as provided in the last paragraph of this Section 4, shall not retain any copies, extracts or other reproductions (including Evaluation Material\nstored in any computer or other electronic storage device) in whole or in part of such material and such destruction shall be certified in writing to\nAspect by an authorized officer of Receiving Party upon request of Aspect.\nNotwithstanding the foregoing, Receiving Party and any of its Representatives that are accounting firms or financial institutions may retain solely for\ncompliance purposes copies of the Evaluation Material in accordance with policies and procedures implemented by such persons or to comply with\nlaw, regulation or professional standards; provided, however, that any Evaluation Material so retained will continue to be held confidential pursuant\nto\nthe\nterms of this Agreement under the sole control of the Receiving Party's or such Representative's general counsel, as the case may be. With\nregard to destruction of Evaluation Material in electronic form, Receiving Party and its Representatives shall be required to perform customary\n"delete" functions made available by the software vendor for use by the end-user of the relevant software, but the Receiving Party and its\nRepresentatives, as the case may be, shall not be required to delete all electronic copies that may be available, for example in backups or archives,\nor\nwhich are retrievable using forensic computer recovery techniques. Notwithstanding the return or destruction of Evaluation Material, Receiving\nParty and its Representatives shall continue to be bound by their obligations hereunder.\nSection 5. Term.\nThis Agreement shall apply to all Evaluation Material disclosed prior to the date that is 12 months after the Effective Date. Unless otherwise\nexpressly stated herein, the obligations set forth in this Agreement shall continue until the third anniversary of the Effective Date; provided, however,\nthat as to Evaluation Material that is subject to a confidentiality obligation on the part of Aspect that extends beyond the third anniversary of\nthe\nEffective Date, Aspect shall so notify Receiving Party of such extended confidentiality obligation and Aspect shall not disclose such Evaluation\nMaterial to Receiving Party until Receiving Party agrees to abide by the obligations set forth in this Agreement with respect to such Evaluation\nMaterial for the term of Aspect's confidentiality obligation applicable to such Evaluation Material, in which event the term of this Agreement shall\nbe deemed to be so extended as to such Evaluation Material.\nSection 6. Nonsolicitation.\nFor a period of one year from the Effective Date, neither Receiving Party nor its affiliates shall solicit to employ any person who (i) is, or\nwithin the prior six months was, an officer of Aspect or any of its subsidiaries or (ii) who is, or within the prior six months was, employed in any\ncapacity by Aspect or any of its subsidiaries and with whom Representatives of Receiving Party came in contact or first identified during the process\nof considering a transaction contemplated by this Agreement; provided, however, that this paragraph shall not prevent\n4\nReceiving Party or its affiliates from hiring a person identified in clause (i) or (ii) (a "Covered Person") if: (1) such Covered Person contacts\nReceiving Party or its Representatives on the Covered Person's own initiative without any direct or indirect solicitation by or encouragement from\nReceiving Party or its Representatives; (2) the personnel of Receiving Party who solicited the Covered Person have no knowledge of any Evaluation\nMaterial and none of the personnel of Receiving Party who have knowledge of any Evaluation Material have actual advance knowledge of such\nsolicitation; (3) such Covered Person responds to a general solicitation of employment not specifically directed towards Aspect or any of its\nsubsidiaries or particular employees of Aspect or any of its subsidiaries or (4) on the date of this Agreement such Covered Person is actively engaged\nin on-going employment discussions with Receiving Party or one of its affiliates outside of the context of the transaction contemplated by this\nAgreement.\nSection 7. Standstill.\nReceiving Party agrees that, for a period of 15 months from the Effective Date, unless a "Significant Event" (as defined below) shall have\noccurred or Receiving Party shall have been specifically invited in writing by Aspect, neither Receiving Party nor any of its affiliates shall in any\nmanner, directly or indirectly:\n(a)\neffect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way advise, assist or\nencourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any\nsecurities (or beneficial ownership thereof) or assets of Aspect; (ii) any tender or exchange offer, merger or other business combination involving\nAspect; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Aspect; or (iv) any\n"solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting\nsecurities of Aspect;\n(b)\nform, join or in any way participate in a "group" (as defined under the Exchange Act) with respect to any securities of Aspect;\n(c)\notherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of Aspect;\n(d)\ntake any action that could reasonably be expected to require Aspect to make a public announcement regarding any of the types of\nmatters set forth in paragraph (a) above; or\n(e)\nenter into any discussions or arrangements with any person with respect to any of the foregoing.\nReceiving Party also agrees during such period not to request Aspect (or its Representatives), directly or indirectly, to amend or waive any\nprovision of this section (including this sentence).\nFor purposes of this Agreement, (i) "Significant Event" shall mean any of (A) the acquisition by any person or "13D Group" (as defined\nbelow) (other than Receiving Party or any of its affiliates) of beneficial ownership of "Voting Securities" (as defined below) of Aspect representing\nmore than 30% of the then outstanding Voting Securities of Aspect; (B) the\n5\nannouncement or commencement by any person or 13D Group (other than Receiving Party or any of its affiliates) of a tender or exchange offer to\nacquire Voting Securities of Aspect which, if successful, would result in such person or 13D Group owning, when combined with any other Voting\nSecurities of Aspect owned by such person or 13D Group, more than 50% of the then outstanding Voting Securities of Aspect; or (C) the entry into\nby Aspect, or determination by Aspect to seek to enter into, any merger, sale or other business combination transaction pursuant to which the\noutstanding shares of common stock of Aspect would be converted into cash or securities of another person or 13D Group or more than 50% of the\nthen outstanding shares of common stock of Aspect would be owned by persons other than the then current holders of shares of common stock\nAspect, or which would result in all or substantially all of Aspect's assets being sold to any person or 13D Group; (ii) "Voting Securities" shall mean,\nat any time, shares of any class of capital stock of Aspect which are then entitled to vote generally in the election of directors; provided, that for\npurposes of this definition any securities which at such time are convertible or exchangeable into or exercisable for shares of common stock\nof\nAspect shall be deemed to have been so converted, exchanged or exercised; and (iii) "13D Group" shall mean, with respect to the Voting Securities\nof Aspect, any group of persons formed for the purpose of acquiring, holding, voting or disposing of such Voting Securities which would be required\nunder Section 13(d) of the Exchange Act and the rules and regulations thereunder to file a statement on Schedule 13D with the SEC as a "person"\nwithin the meaning of Section 13(d)(3) of the Exchange Act if such group beneficially owned Voting Securities representing more than 5% of the\ntotal combined voting power of all such Voting Securities then outstanding.\nReceiving Party represents and warrants that, as of the date of this Agreement, neither Receiving Party nor any of its controlled or controlling\naffiliates owns, of record or beneficially, any voting securities of Aspect, or any securities convertible into or exercisable for any voting securities of\nAspect.\nSection 8. Trading in Securities.\nReceiving Party acknowledges that it is aware (and that its Representatives who are apprised of a possible transaction between the parties have\nbeen or will be advised) that applicable securities laws prohibit any person who is aware of material, non-public information about a company\nobtained directly or indirectly from that company from purchasing or selling securities of such company or from communicating such information to\nany other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nSection 9. No Representations and Warranties; Relationship to Definitive Agreement.\n(a)\nReceiving Party understands and acknowledges that neither Aspect nor any of its Representatives has made or is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. Receiving Party agrees that neither\nAspect nor its Representatives shall have any liability to Receiving Party or any of its Representatives or any other person relating to or resulting\nfrom the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a\ndefinitive agreement between the parties, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will\nhave any legal effect.\n6\nFor purposes of this Agreement, the term "definitive agreement" does not include any executed letter of intent or any other preliminary written\nagreement, nor does it include any written or verbal acceptance of any offer or bid made by one party.\n(b)\nReceiving Party understands and agrees that no contract or agreement, express or implied, providing for any transaction involving the\nparties shall be deemed to exist unless and until a definitive agreement has been executed and delivered. Receiving Party also agrees that unless and\nuntil a definitive agreement regarding a transaction between the parties has been executed and delivered, Aspect will not be under any legal\nobligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement or any other written or oral communication with\nrespect to such transaction, except for the matters specifically agreed to herein.\n(c)\nAspect reserves the right, in its sole discretion, to reject any and all proposals made by Receiving Party with regard to a transaction\nbetween the parties and to terminate discussions and negotiations with Receiving Party at any time and for any reason or no reason. Receiving Party\nunderstands that Aspect and its Representatives shall be free to conduct any process for any transaction in such manner as they, in their sole\ndiscretion, shall determine (including, without limitation, negotiating with other interested parties and entering into a preliminary or definitive\nagreement without prior notice to Receiving Party or any other person) and that any procedures relating to such process or transaction may be\nchanged at any time without notice to Receiving Party or any other person.\nSection 10. Contacts and Communications.\nReceiving Party agrees that, prior to the date that is 15 months after the Effective Date, all contacts or communications by it or its\nRepresentatives with Aspect regarding a possible transaction between the parties or the Evaluation Material, all requests for additional information,\nfacility tours or management meetings and all discussions or questions regarding procedures with respect to a possible transaction, will be submitted\nor directed only to (i) Aspect's Chief Executive Officer or (ii) as Aspect shall otherwise instruct in writing. Without the express prior consent of\nAspect, Receiving Party agrees that it will not, directly or indirectly, contact or communicate with any officer, employee, director, stockholder, agent,\ncustomer or business partner of Aspect regarding Evaluation Material or a possible transaction between the parties.\nSection 11. Miscellaneous.\n(a)\nThis Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the\nconflicts of law principles thereof.\n(b)\nReceiving Party recognizes and acknowledges the competitive value and confidential nature of the Evaluation Material and that\nirreparable damage may result to Aspect if information contained therein or derived therefrom is disclosed to any person except as herein provided\nor is used for any purpose other than the evaluation of a possible negotiated transaction between the parties. Receiving Party further understands and\nagrees that money damages may not be a sufficient remedy for any breach of this Agreement by Receiving Party or any of\n7\nReceiving Party's Representatives and that Aspect may be entitled to equitable relief, including injunction and specific performance, as a remedy for\nany such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach by Receiving Party of this Agreement, but shall be in\naddition to all of Aspect's other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent\njurisdiction determines that Receiving Party has breached this Agreement, then Receiving Party shall be liable for and pay to Aspect the reasonable\nlegal fees and disbursements that Aspect has incurred in connection with such litigation, including any appeal therefrom.\n(c)\nThis Agreement may not be assigned in whole or in part by Receiving Party without the prior written consent of Aspect; provided that\nno such consent shall be required, and this Agreement may be assigned by Receiving Party, in the case of a sale by Receiving Party of all or\nsubstantially all of its business or assets, whether by merger, sale of assets or otherwise. Subject to the foregoing, this Agreement shall be binding\nupon and inure to the benefit of the parties and their respective successors and assigns.\n(d)\nThis Agreement contains the entire agreement between the parties concerning the subject matter hereof. No provision of this\nAgreement may be waived or amended except by the express written consent of the parties. No failure or delay by Aspect in exercising any right,\npower or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege hereunder.\n(e)\nAll notices and other communications hereunder shall be in writing. Any notice or other communication hereunder shall be deemed\nduly delivered one business day after it is sent for next business day delivery via a reputable nationwide overnight courier service, in each case to the\nintended recipient as set forth below:\nIf to Aspect:\nCopy to:\nAspect Medical Systems, Inc.\nWilmer Cutler Pickering Hale and Dorr LLP\nOne Upland Road\n60 State Street\nNorwood, MA 02062\nBoston, MA 02109\nAttention: J. Neal Armstrong\nAttn: Susan W. Murley, Esq\nVice President and Chief Financial Officer\nTelephone: (617) 526-6000\nTelephone: (617) 559-7000\nIf to Receiving Party:\nCopy to:\nTyco Healthcare Group LP\nTyco Healthcare Group LP\nd/b/a Covidien\nd/b/a Covidien\n15 Hampshire Street\n15 Hampshire Street\nMansfield, MA 02048\nMansfield, MA 02048\nAttention: Senior Vice President, Strategy & Business Development\nAttention: Chief Mergers & Acquisitions Counsel\nTelephone: (508) 261-8000\nTelephone: (508) 261-8000\n8\nEither party may give any notice or other communication hereunder using any other means (including personal delivery, expedited courier,\nmessenger service, telecopy, telex, ordinary mail, or electronic mail), but no such notice or other communication shall be deemed duly given unless\nand until the party for whom it is intended actually receives it. Any party may change the address to which notices and other communications\nhereunder are to be delivered by giving the other party notice in the manner herein set forth.\n(f) For the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed to\nbe an original and both of which, taken together, shall constitute one agreement binding on both parties.\n(g)\nThe section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or\ninterpretation of this Agreement.\n9\nEXECUTED as of the date first above written.\nASPECT MEDICAL SYSTEMS, INC.\nBy:\n/s/ Nassib Chamoun\nName:\nNassib Chamoun\nTitle:\nPresident & CEO\nTYCO HEALTHCARE GROUP LP\nD/B/A COVIDIEN\nBy:\n/s/ Amy McBride-Wendell\nName:\nAmy McBride-Wendell\nTitle:\nSVP Strategy & BD&L\n- 10 -	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is dated and effective as of August 3, 2009 (the “Effective Date”), between Aspect Medical\nSystems, Inc., a Delaware corporation (“Aspect”), and Tyco Healthcare Group LP d/b/a Covidien (“Receiving Party”).\nBackground\n1. Receiving Party has requested Aspect to provide certain information, which is either confidential or proprietary in nature, in connection\nwith its consideration of a possible negotiated transaction between the two companies.\n2. Aspect desires to protect the confidentiality of the information it provides and to have Receiving Party take or abstain from taking\ncertain actions in accordance with the terms of this Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants and promises contained in this Agreement and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\nSection 1. Definitions.\n(a)\n“Evaluation Material” means any information concerning Aspect (whether prepared by Aspect, its Representatives or otherwise and\nirrespective of the form of communication) that is furnished to Receiving Party or any of its Representatives by or on behalf of Aspect on or after\nJanuary 15, 2009, and all notes, analyses, compilations, studies, interpretations, memoranda, reports or other documents (regardless of the form\nthereof) prepared by Receiving Party or its Representatives which contain, reflect or are based upon, in whole or in part, any information furnished\nto Receiving Party or its Representatives pursuant to this Agreement; provided, however, that “Evaluation Material” does not include information of\nAspect which:\n(i) is or becomes generally available to the public other than as a result of a disclosure directly or indirectly by Receiving Party or\nits Representatives in violation of this Agreement;\n(ii) was within Receiving Party’s possession prior to it being furnished to Receiving Party or its Representatives by or on behalf of\nAspect pursuant to this Agreement, provided that such information is not subject to another confidentiality agreement with or other contractual, legal\nor fiduciary obligation of confidentiality to Aspect or any other party with respect to such information;\n(iii) becomes available to Receiving Party on a non-confidential basis from a source other than Aspect or any of its\nRepresentatives, provided that such source was not known to Receiving Party at the time of the disclosure to be bound by a confidentiality\nagreement with or other contractual, legal or fiduciary obligation of confidentiality to Aspect or any other party with respect to such information; or\n(iv) is independently developed by Receiving Party or others on its behalf without reference to or reliance upon any information\nfurnished to Receiving Party or any of its Representatives by or on behalf of Aspect.\n(b) “Representatives” means, with respect to a party, its direct and indirect parents and subsidiaries, and its and their respective directors,\nofficers, affiliates, employees, partners, agents, commercial banks or other similar lenders providing debt (but not equity) financing, or advisors\n(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors).\n(c) The term “person” shall be broadly interpreted to include the media and any corporation, company, partnership, joint venture, group,\nlimited liability company other entity or individual and the term “affiliate” has the meaning set forth in Rule 12b-2 under the Securities Exchange\nAct of 1934 (the “Exchange Act”).\nSection 2. Use and Disclosure of Evaluation Material.\n(a) Except as otherwise provided in this Agreement, Receiving Party hereby agrees that it and its Representatives shall:\n(i) use the Evaluation Material solely for the purpose of evaluating and negotiating a possible transaction between the parties;\n(ii) keep the Evaluation Material confidential in accordance with the terms of this Agreement; and\n(iii) not disclose any Evaluation Material except in accordance with the terms of this Agreement;\nprovided, however, that Receiving Party may disclose any Evaluation Material to Receiving Party’s Representatives who need to know such\ninformation for the sole purpose of evaluating and negotiating a possible transaction between the parties, provided that Receiving Party’s\nRepresentatives are informed of the confidential nature of such Evaluation Material.\n(b) Except as otherwise provided in this Agreement, or as otherwise required by applicable law or stock exchange requirement, neither\nparty nor any of its Representatives shall disclose to any other person (i) the existence of this Agreement, (ii) the fact that Evaluation Material has\nbeen made available to Receiving Party or its Representatives, (iii) that discussions are taking place concerning a possible negotiated transaction\nbetween the parties, (iv) any of the terms, conditions or other facts with respect thereto, or (v) the status of such discussions (collectively, the\n“Transaction Information”).\n(c) Receiving Party shall be liable to Aspect for any use or disclosure by any of Receiving Party’s Representatives of (i) Evaluation\nMaterial or (ii) Transaction Information, which if done by Receiving Party itself would be a breach of this Agreement. Aspect shall be\n-2-\nliable to Receiving Party for any use or disclosure by any of Aspect’s Representatives of Transaction Information, which if done by Aspect itself\nwould be a breach of this Agreement. Each party agrees, at its sole expense, to take reasonable measures (including but not limited to court\nproceedings) to restrain its Representatives from prohibited or unauthorized disclosure or use of Evaluation Material and/or the Transaction\nInformation, as the case may be.\n(d) To the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any\nother applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection under the attorney-\nclient privilege, work product doctrine and other applicable privilege shall remain entitled to such protection under these privileges, this agreement,\nand under the joint defense doctrine.\nSection 3. Legally Required Disclosure.\nIf Receiving Party or any of its Representatives is requested or, upon the advice of its outside legal counsel, required under any applicable law,\nregulation (including, without limitation, any rule, regulation or policy statement of any organized securities exchange, market or automated\nquotation system on which any of a party’s securities are listed or quoted) or valid legal process to disclose any of the Evaluation Material or the\nTransaction Information, Receiving Party shall, except as prohibited by law, provide Aspect with prompt written notice of any such request or\nrequirement so that Aspect may seek, at Aspect’s expense, a protective order or other remedy and/or waive compliance with the provisions of this\nAgreement. If Aspect seeks a protective order or other remedy, Receiving Party shall provide such cooperation as Aspect shall reasonably request. If,\nin the absence of a protective order or other remedy or the receipt by Receiving Party of a waiver from Aspect, Receiving Party or any of its\nRepresentatives is nonetheless, in the opinion of its outside legal counsel, legally compelled to disclose Evaluation Material or Transaction\nInformation to any tribunal or other entity, Receiving Party or its Representatives may, without liability hereunder, disclose to such tribunal or other\nentity only that portion of the Evaluation Material or Transaction Information which such counsel advises Receiving Party or such Representatives is\nlegally required to be disclosed, provided that Receiving Party and its Representatives shall exercise reasonable best efforts to minimize the\ndisclosure of the Evaluation Material or Transaction Information and to preserve the confidentiality thereof.\nSection 4. Return or Destruction of Evaluation Material.\nAt any time upon the written request of Aspect for any reason:\n(a) Receiving Party shall promptly (and in no event later than 15 business days after such request), at its election, either return to Aspect or\ndestroy (in which case, such destruction shall be certified in writing to Aspect by an authorized officer of Receiving Party) all Evaluation Material\n(and all copies thereof) furnished to Receiving Party or its Representatives by or on\n-3-\nbehalf of Aspect and, except as provided in the last paragraph of this Section 4, shall not retain any copies, extracts or other reproductions (including\nEvaluation Material stored in any computer or other electronic storage device) in whole or in part of such material; and\n(b) Receiving Party and its Representatives shall destroy all Evaluation Material prepared by Receiving Party or its Representatives, and,\nexcept as provided in the last paragraph of this Section 4, shall not retain any copies, extracts or other reproductions (including Evaluation Material\nstored in any computer or other electronic storage device) in whole or in part of such material and such destruction shall be certified in writing to\nAspect by an authorized officer of Receiving Party upon request of Aspect.\nNotwithstanding the foregoing, Receiving Party and any of its Representatives that are accounting firms or financial institutions may retain solely for\ncompliance purposes copies of the Evaluation Material in accordance with policies and procedures implemented by such persons or to comply with\nlaw, regulation or professional standards; provided, however, that any Evaluation Material so retained will continue to be held confidential pursuant\nto the terms of this Agreement under the sole control of the Receiving Party’s or such Representative’s general counsel, as the case may be. With\nregard to destruction of Evaluation Material in electronic form, Receiving Party and its Representatives shall be required to perform customary\n“delete” functions made available by the software vendor for use by the end-user of the relevant software, but the Receiving Party and its\nRepresentatives, as the case may be, shall not be required to delete all electronic copies that may be available, for example in backups or archives, or\nwhich are retrievable using forensic computer recovery techniques. Notwithstanding the return or destruction of Evaluation Material, Receiving\nParty and its Representatives shall continue to be bound by their obligations hereunder.\nSection 5. Term.\nThis Agreement shall apply to all Evaluation Material disclosed prior to the date that is 12 months after the Effective Date. Unless otherwise\nexpressly stated herein, the obligations set forth in this Agreement shall continue until the third anniversary of the Effective Date; provided, however,\nthat as to Evaluation Material that is subject to a confidentiality obligation on the part of Aspect that extends beyond the third anniversary of the\nEffective Date, Aspect shall so notify Receiving Party of such extended confidentiality obligation and Aspect shall not disclose such Evaluation\nMaterial to Receiving Party until Receiving Party agrees to abide by the obligations set forth in this Agreement with respect to such Evaluation\nMaterial for the term of Aspect’s confidentiality obligation applicable to such Evaluation Material, in which event the term of this Agreement shall\nbe deemed to be so extended as to such Evaluation Material.\nSection 6. Nonsolicitation.\nFor a period of one year from the Effective Date, neither Receiving Party nor its affiliates shall solicit to employ any person who (i) is, or\nwithin the prior six months was, an officer of Aspect or any of its subsidiaries or (ii) who is, or within the prior six months was, employed in any\ncapacity by Aspect or any of its subsidiaries and with whom Representatives of Receiving Party came in contact or first identified during the process\nof considering a transaction contemplated by this Agreement; provided, however, that this paragraph shall not prevent\n-4-\nReceiving Party or its affiliates from hiring a person identified in clause (i) or (ii) (a “Covered Person”) if: (1) such Covered Person contacts\nReceiving Party or its Representatives on the Covered Person’s own initiative without any direct or indirect solicitation by or encouragement from\nReceiving Party or its Representatives; (2) the personnel of Receiving Party who solicited the Covered Person have no knowledge of any Evaluation\nMaterial and none of the personnel of Receiving Party who have knowledge of any Evaluation Material have actual advance knowledge of such\nsolicitation; (3) such Covered Person responds to a general solicitation of employment not specifically directed towards Aspect or any of its\nsubsidiaries or particular employees of Aspect or any of its subsidiaries or (4) on the date of this Agreement such Covered Person is actively engaged\nin on-going employment discussions with Receiving Party or one of its affiliates outside of the context of the transaction contemplated by this\nAgreement.\nSection 7. Standstill.\nReceiving Party agrees that, for a period of 15 months from the Effective Date, unless a “Significant Event” (as defined below) shall have\noccurred or Receiving Party shall have been specifically invited in writing by Aspect, neither Receiving Party nor any of its affiliates shall in any\nmanner, directly or indirectly:\n(a)\neffect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way advise, assist or\nencourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any\nsecurities (or beneficial ownership thereof) or assets of Aspect; (ii) any tender or exchange offer, merger or other business combination involving\nAspect; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Aspect; or (iv) any\n“solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting\nsecurities of Aspect;\n(b) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to any securities of Aspect;\n(c)\notherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of Aspect;\n(d) take any action that could reasonably be expected to require Aspect to make a public announcement regarding any of the types of\nmatters set forth in paragraph (a) above; or\n(e)\nenter into any discussions or arrangements with any person with respect to any of the foregoing.\nReceiving Party also agrees during such period not to request Aspect (or its Representatives), directly or indirectly, to amend or waive any\nprovision of this section (including this sentence).\nFor purposes of this Agreement, (i) “Significant Event” shall mean any of (A) the acquisition by any person or “13D Group” (as defined\nbelow) (other than Receiving Party or any of its affiliates) of beneficial ownership of “Voting Securities” (as defined below) of Aspect representing\nmore than 30% of the then outstanding Voting Securities of Aspect; (B) the\n-5-\nannouncement or commencement by any person or 13D Group (other than Receiving Party or any of its affiliates) of a tender or exchange offer to\nacquire Voting Securities of Aspect which, if successful, would result in such person or 13D Group owning, when combined with any other Voting\nSecurities of Aspect owned by such person or 13D Group, more than 50% of the then outstanding Voting Securities of Aspect; or (C) the entry into\nby Aspect, or determination by Aspect to seek to enter into, any merger, sale or other business combination transaction pursuant to which the\noutstanding shares of common stock of Aspect would be converted into cash or securities of another person or 13D Group or more than 50% of the\nthen outstanding shares of common stock of Aspect would be owned by persons other than the then current holders of shares of common stock\nAspect, or which would result in all or substantially all of Aspect’s assets being sold to any person or 13D Group; (ii) “Voting Securities” shall mean,\nat any time, shares of any class of capital stock of Aspect which are then entitled to vote generally in the election of directors; provided, that for\npurposes of this definition any securities which at such time are convertible or exchangeable into or exercisable for shares of common stock of\nAspect shall be deemed to have been so converted, exchanged or exercised; and (iii) “13D Group” shall mean, with respect to the Voting Securities\nof Aspect, any group of persons formed for the purpose of acquiring, holding, voting or disposing of such Voting Securities which would be required\nunder Section 13(d) of the Exchange Act and the rules and regulations thereunder to file a statement on Schedule 13D with the SEC as a “person”\nwithin the meaning of Section 13(d)(3) of the Exchange Act if such group beneficially owned Voting Securities representing more than 5% of the\ntotal combined voting power of all such Voting Securities then outstanding.\nReceiving Party represents and warrants that, as of the date of this Agreement, neither Receiving Party nor any of its controlled or controlling\naffiliates owns, of record or beneficially, any voting securities of Aspect, or any securities convertible into or exercisable for any voting securities of\nAspect.\nSection 8. Trading in Securities.\nReceiving Party acknowledges that it is aware (and that its Representatives who are apprised of a possible transaction between the parties have\nbeen or will be advised) that applicable securities laws prohibit any person who is aware of material, non-public information about a company\nobtained directly or indirectly from that company from purchasing or selling securities of such company or from communicating such information to\nany other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nSection 9. No Representations and Warranties; Relationship to Definitive Agreement.\n(a) Receiving Party understands and acknowledges that neither Aspect nor any of its Representatives has made or is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. Receiving Party agrees that neither\nAspect nor its Representatives shall have any liability to Receiving Party or any of its Representatives or any other person relating to or resulting\nfrom the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or warranties which are made in a\ndefinitive agreement between the parties, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will\nhave any legal effect.\n-6-\nFor purposes of this Agreement, the term “definitive agreement” does not include any executed letter of intent or any other preliminary written\nagreement, nor does it include any written or verbal acceptance of any offer or bid made by one party.\n(b) Receiving Party understands and agrees that no contract or agreement, express or implied, providing for any transaction involving the\nparties shall be deemed to exist unless and until a definitive agreement has been executed and delivered. Receiving Party also agrees that unless and\nuntil a definitive agreement regarding a transaction between the parties has been executed and delivered, Aspect will not be under any legal\nobligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement or any other written or oral communication with\nrespect to such transaction, except for the matters specifically agreed to herein.\n(c) Aspect reserves the right, in its sole discretion, to reject any and all proposals made by Receiving Party with regard to a transaction\nbetween the parties and to terminate discussions and negotiations with Receiving Party at any time and for any reason or no reason. Receiving Party\nunderstands that Aspect and its Representatives shall be free to conduct any process for any transaction in such manner as they, in their sole\ndiscretion, shall determine (including, without limitation, negotiating with other interested parties and entering into a preliminary or definitive\nagreement without prior notice to Receiving Party or any other person) and that any procedures relating to such process or transaction may be\nchanged at any time without notice to Receiving Party or any other person.\nSection 10. Contacts and Communications.\nReceiving Party agrees that, prior to the date that is 15 months after the Effective Date, all contacts or communications by it or its\nRepresentatives with Aspect regarding a possible transaction between the parties or the Evaluation Material, all requests for additional information,\nfacility tours or management meetings and all discussions or questions regarding procedures with respect to a possible transaction, will be submitted\nor directed only to (i) Aspect’s Chief Executive Officer or (ii) as Aspect shall otherwise instruct in writing. Without the express prior consent of\nAspect, Receiving Party agrees that it will not, directly or indirectly, contact or communicate with any officer, employee, director, stockholder, agent,\ncustomer or business partner of Aspect regarding Evaluation Material or a possible transaction between the parties.\nSection 11. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the\nconflicts of law principles thereof.\n(b) Receiving Party recognizes and acknowledges the competitive value and confidential nature of the Evaluation Material and that\nirreparable damage may result to Aspect if information contained therein or derived therefrom is disclosed to any person except as herein provided\nor is used for any purpose other than the evaluation of a possible negotiated transaction between the parties. Receiving Party further understands and\nagrees that money damages may not be a sufficient remedy for any breach of this Agreement by Receiving Party or any of\n-7-\nReceiving Party’s Representatives and that Aspect may be entitled to equitable relief, including injunction and specific performance, as a remedy for\nany such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach by Receiving Party of this Agreement, but shall be in\naddition to all of Aspect’s other remedies available at law or equity. In the event of litigation relating to this Agreement, if a court of competent\njurisdiction determines that Receiving Party has breached this Agreement, then Receiving Party shall be liable for and pay to Aspect the reasonable\nlegal fees and disbursements that Aspect has incurred in connection with such litigation, including any appeal therefrom.\n(c) This Agreement may not be assigned in whole or in part by Receiving Party without the prior written consent of Aspect; provided that\nno such consent shall be required, and this Agreement may be assigned by Receiving Party, in the case of a sale by Receiving Party of all or\nsubstantially all of its business or assets, whether by merger, sale of assets or otherwise. Subject to the foregoing, this Agreement shall be binding\nupon and inure to the benefit of the parties and their respective successors and assigns.\n(d) This Agreement contains the entire agreement between the parties concerning the subject matter hereof. No provision of this\nAgreement may be waived or amended except by the express written consent of the parties. No failure or delay by Aspect in exercising any right,\npower or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege hereunder.\n(e) All notices and other communications hereunder shall be in writing. Any notice or other communication hereunder shall be deemed\nduly delivered one business day after it is sent for next business day delivery via a reputable nationwide overnight courier service, in each case to the\nintended recipient as set forth below:\nIf to Aspect:\nAspect Medical Systems, Inc.\nOne Upland Road\nNorwood, MA 02062\nAttention: J. Neal Armstrong\nVice President and Chief Financial Officer\nTelephone: (617) 559-7000\nCopy to:\nWilmer Cutler Pickering Hale and Dorr LLP\n60 State Street\nBoston, MA 02109\nAttn: Susan W. Murley, Esq.\nTelephone: (617) 526-6000\nIf to Receiving Party:\nTyco Healthcare Group LP\nd/b/a Covidien\n15 Hampshire Street\nMansfield, MA 02048\nAttention: Senior Vice President, Strategy & Business Development\nTelephone: (508) 261-8000\nCopy to:\nTyco Healthcare Group LP\nd/b/a Covidien\n15 Hampshire Street\nMansfield, MA 02048\nAttention: Chief Mergers & Acquisitions Counsel\nTelephone: (508) 261-8000\n-8-\nEither party may give any notice or other communication hereunder using any other means (including personal delivery, expedited courier,\nmessenger service, telecopy, telex, ordinary mail, or electronic mail), but no such notice or other communication shall be deemed duly given unless\nand until the party for whom it is intended actually receives it. Any party may change the address to which notices and other communications\nhereunder are to be delivered by giving the other party notice in the manner herein set forth.\n(f) For the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed to\nbe an original and both of which, taken together, shall constitute one agreement binding on both parties.\n(g) The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or\ninterpretation of this Agreement.\n-9-\nEXECUTED as of the date first above written.\nASPECT MEDICAL SYSTEMS, INC.\nBy:\n/s/ Nassib Chamoun\nName:\nNassib Chamoun\nTitle:\nPresident & CEO\nTYCO HEALTHCARE GROUP LP\nD/B/A COVIDIEN\nBy:\n/s/ Amy McBride-Wendell\nName:\nAmy McBride-Wendell\nTitle:\nSVP Strategy & BD&L\n-10-
+07b135b30e301560ecfde236c9311975.pdf	jurisdiction party	EXHIBIT A\nForm Of Waiver, Release, Non-Competition, Non-Solicitation and Non-Disclosure Agreement\nAGREEMENT\nThe following is an agreement (the “Agreement”) made and entered into on this ___ day of\n_____ ______ ______ _, 20__ (the “Effective Date”) by and between David L. Fetherman (“Executive”) and Escalade,\nIncorporated, an Indiana corporation (“Escalade”) regarding Executive’s termination from all positions held by Executive\nwith Escalade and its various subsidiaries and affiliates. Escalade and Executive are sometimes referred to collectively\nas the “parties” and individually as a “party,” and the term “Company” shall mean Escalade and its various subsidiaries\nand affiliates collectively.\nRecitals:\nA. Executive is the Chief Executive Officer and President of Escalade, a Director of Escalade, [and any other\npositions with Escalade] [and any positions as an officer and/or director of various subsidiaries and affiliates of Escalade];\nand\nB. Executive’s employment with the Company [has terminated as of the Effective Date] [will terminate as of\n_____ ______ , 20__] (the “Employment End Date”); and\nC. Executive and the Company are parties to that certain Executive Severance Agreement dated as of\n_____ _____, 2016 (the “Executive Agreement”), which Executive Agreement represents the parties’ mutual agreement\nwith respect to all matters related to Executive’s termination of employment with the Company. All capitalized terms used\nin this Agreement and not defined herein shall have the meaning set forth in the Executive Agreement.\nNOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Company and\nExecutive agree as follows:\n1. Termination. Executive hereby affirms his termination from his positions as Chief Executive Officer and\nPresident of Escalade, as a Director of Escalade, and from all other executive officer and director positions that he holds\nwith Escalade and any of Escalade’s subsidiaries and their affiliates, effective as of the Employment End Date. Executive\nacknowledges and agrees as of the Employment End Date he also retires as a trustee or other administrator of any and\nall Company benefit plans, including without limitation the Company’s retirement plan. Executive and the Company agree\nthat Executive’s resignation as a Director of Escalade is not related to any disagreement between them (other than as\nmay relate to the termination of the Executive’s employment with the Company) that would require disclosure pursuant to\nItem 5.02(a) of Form 8-K or any successor provision thereto.\n13\n2. Compensation and Benefits. Provided that Executive fulfills his obligations as set forth in this Agreement,\nthe Company shall pay to Executive the Severance Benefits payable to him in accordance with the applicable terms of\nSection 4 of the Executive Agreement.\n3. Executive’s Obligations. In consideration of the payments and benefits provided in Section 2 above,\nExecutive will:\n(a) fully cooperate and assist the Company with any litigation matters or regulatory or agency proceedings for\nwhich his testimony or cooperation is requested by Company following the Effective Date, provided that he is reimbursed\nfor any reasonable and necessary expenses incurred as a result of his cooperation and assistance, and further provided\nthat the Company and Executive shall discuss in advance of Executive’s providing any such cooperation and assistance\nthe anticipated time commitment that would likely be required of Executive with respect to any such matter and shall\nmutually determine whether Executive should be compensated for his time and the amount of any such compensation, it\nbeing understood and agreed that if the parties cannot reach agreement as to any such compensation, then the\nCompany shall not request, and Executive shall not be required, to provide cooperation and assistance with respect to\nsuch litigation or proceeding;\n(b) sign all necessary resignations from the boards of directors and/or all other officer, employee and trustee\npositions of the Company, but in any event Executive shall be deemed to have resigned any such executive officer,\ndirector and trustee positions as of the Employment End Date;\n(c) through the Employment End Date, except as provided in clause (d) below, continue to comply with the\nCompany’s Insider Trading Policy, Code of Ethics and all other Company policies and procedures applicable to\nemployees of the Company including, without limitation, no destruction of any documents belonging to or relating to the\nCompany or Executive’s employment with the Company, whether in paper, electronic, digital or any other format, unless\nsuch destruction is approved in advance and observed by an officer of the Company specifically designated and\nauthorized by Escalade’s Board of Directors;\n(d) comply with the Company’s Policy for Recovery of Incentive Compensation through the end of the look\nback period, which look back period shall be deemed to commence on the Employment End Date and continue for three\nyears thereafter;\n(e) comply with all laws relating to the Company’s business and operations as applicable to Executive and\nthe Company; and\n(f) comply with all covenants contained in the Executive Agreement and in this Agreement, including without\nlimitation Sections 4, 5 and 6 hereof.\n4. Mutual Nondisparagement.\n(a) Executive’s Covenant. Beginning on the Effective Date, Executive shall not make, participate in the\nmaking of, or encourage any other person to make, any statements, written or oral, which criticize, disparage, or defame\nthe reputation of, or which embarrass the Company, its subsidiaries and their affiliates or any of their respective present,\nformer or future directors, officers, executives, employees and/or shareholders.\n14\n(b) Company’s Covenant. Beginning on the Effective Date, the Company shall not, and shall instruct the\nmembers of Escalade’s Board of Directors and executive officers not to, make, participate in the making of, or encourage\nany employees or any other person to make, any statements, written or oral, which criticize, disparage, or defame the\nreputation of, or which are intended to embarrass, the Executive.\n5. Confidentiality. Executive understands and agrees that:\n(a) Escalade is required to describe the material terms of this Agreement in a Current Report on Form 8-K to\nbe filed with the Securities and Exchange Commission no later than four (4) business days after this Agreement is signed\nby the Executive and Escalade, and that the Company will attach this Agreement in its entirety as an Exhibit to such\npublic filing;\n(b) Executive has been through the Employment End Date in the course of employment with the Company\nentrusted with or obtained access to information proprietary to the Company with respect to the following (all of which\ninformation is referred to hereinafter collectively as the "Information"): the organization and management of the\nCompany; the names, addresses, buying habits, and other special information regarding past, present and potential\ncustomers, employees and suppliers of the Company; customer and supplier contracts and transactions or price lists of\nthe Company and their suppliers; products, services, programs and processes sold, licensed or developed by the\nCompany; technical data, plans and specifications, present and/or future development projects of the Company; financial\nand/or marketing data respecting the conduct of the present or future phases of business of the Company; computer\nprograms, systems and/or software; ideas, inventions, trademarks, trade secrets, business information, know-how,\nprocesses, improvements, designs, redesigns, discoveries and developments of the Company; and other information\nconsidered confidential by any of the Company or its customers or suppliers. At all times through the Employment End\nDate and thereafter, Executive agrees to retain the Information in absolute confidence and not to disclose the Information\nto any person or organization except as required in the performance of Executive's duties for the Company as provided in\nthis Agreement, without the express written consent of the Company; provided that Executive’s obligation of\nconfidentiality shall not extend to any Information which becomes generally available to the public other than as a result\nof disclosure by Executive;\n(c) Executive and the Company agree that effective no later than __ days following {length of time will\ndepend upon information that Executive may have at the time of termination} the Employment End Date, Executive will\nno longer be privy to material, non-public information regarding the Company. Accordingly, the Company agrees that\nExecutive shall not be subject to the Company’s Insider Trading Policy thereafter, provided, however, that if and to the\nextent that Executive may from time to time acquire knowledge of material, non-public information regarding the\nCompany, Executive acknowledges and agrees that he may not trade based upon such information and must comply\nwith all applicable laws prohibiting insider trading. The Company further agrees that it will not intentionally provide\nmaterial, non-public information to Executive following the Employment End Date except in connection with such events,\nactions or circumstances that would require stockholder approval and the Company has made a good faith determination\nthat it is necessary and appropriate to disclose such information to Executive given his then current ownership of\nEscalade common stock, and that the Company will use its reasonable best efforts to prevent any inadvertent disclosures\nof material, non-public information to Executive;\n15\n(d) Notwithstanding the foregoing, in the event that the Executive is requested or required by law, regulatory\nauthority or other applicable judicial or governmental order to disclose any Information, the Executive will provide the\nCompany with prompt notice of any such request or requirement (if legally permissible) so that the Company may seek a\nprotective order or other appropriate remedy and/or waive compliance with the terms of this Agreement with respect to\nnon-disclosure of such Information. In the event that such protective order or other remedy is not obtained, or that the\nCompany waives compliance with the terms hereof as set forth above, the Executive may disclose only that portion of the\nInformation which is legally required; and\n(e) On or promptly following the Employment End Date, Executive will return all Company issued electronic\ndevices (including without limitation, laptops, smart phone, tablets, and similar devices) and Company information to the\nCompany, will no longer access any Escalade data processing or information systems, and will allow the Company to\ninspect any and all electronic devices, whether owned by the Company or Executive, to delete any and all Company data\nand access to Company systems from such devices.\n6. Covenant Not to Compete, No Interference; No Solicitation. At all times through the twelfth month following\nthe Employment End Date (or if this period is unenforceable by law, then for such shorter period as shall be enforceable):\n(a) Executive will not engage in any business offering products or services related to the current business of\nthe Company, whether as a principal, partner, joint venture, agent, employee, salesman, consultant, director or officer,\nwhere such business or business activity is in competition with the Company in any geographic market where the\nCompany does business; provided, however, that Executive shall not be prohibited from performing services for a\nsubsidiary or division of a competitive business, as long as (i) such subsidiary or division is not in competition with the\nCompany, (ii) the revenues of the competitive business relating to its products and services that are in competition with\nthe Company constitute five percent (5%) or less of its total revenues, and (iii) the Executive abides by all other\nprovisions of this Agreement including without limitation Sections 4, 5, 6(b) and 6(c);\n(b) Executive will not interfere with or adversely affect, either directly or indirectly, the Company’s\nrelationships with any person, firm, association, corporation or other entity which is known by Executive to be, or is\nincluded on any listing to which Executive had access during the course of his employment as a customer, client,\nsupplier, consultant or employee of the Company, and Executive will not divert or change, or attempt to divert or change,\nany such relationship to the detriment of the Company or to the benefit of any other person, firm, association, corporation\nor other entity; and\n16\n(c) Executive will not induce, seek to induce or participate directly or indirectly with any third party in seeking\nto induce, any other employee of the Company to terminate his or her employment relationship with the Company,\nprovided, however, that this restriction shall not prohibit Executive from hiring any employee who seeks employment from\nExecutive or any third party with whom Executive may be employed or affiliated with in the future on an unsolicited basis\nas long as such employment is not in competition with any business or operations of the Company.\nExecutive acknowledges and agrees that the covenants, restrictions, agreements, and obligations set forth\nherein are founded upon valuable consideration, and, with respect to the covenants, restrictions, agreements, and\nobligations set forth in this Section 6 are reasonable in duration and geographic scope. The time period and geographical\narea set forth in this Section 6 are each divisible and separable, and, in the event that the covenants not to compete\nand/or not to divert business or employees contained therein are judicially held invalid or unenforceable as to such time\nperiod and/or geographical area, they will be valid and enforceable in such geographical area(s) and for such time\nperiod(s) which the court determines to be reasonable and enforceable. Executive agrees that in the event that any court\nof competent jurisdiction determines that the above covenants are invalid or unenforceable to join with the Company in\nrequesting such court to construe the applicable provision by limiting or reducing it so as to be enforceable to the extent\ncompatible with the then applicable law. Furthermore, it is agreed that any period of restriction or covenant hereinabove\nstated shall not include any period of violation or period of time required for litigation or arbitration to enforce such\nrestrictions or covenants.\n7. Tax Liability; Tax Withholding. Executive acknowledges and agrees that he is responsible for the payment of\nall taxes relating to the consideration to be provided to him as contemplated by this Agreement, including the payment of\nany taxes relating to his exercise of stock options and his receipt of any stock, cash or other consideration relating to any\nother equity incentive awards he may have received from the Company. Notwithstanding any other provision of this\nAgreement, the Company will withhold from any amounts payable under this Agreement, or any other benefits received\npursuant hereto, such federal, state and/or local taxes as shall be required to be withheld under any applicable law or\nregulation.\n8. No Mitigation; No Offset. In no event shall Executive be obligated to seek other employment or to take any\nother action that would mitigate the amounts payable to Executive under this Agreement. In the event that Executive\nwould obtain subsequent employment, the Company may not offset any compensation or other amounts earned by\nExecutive from such subsequent employment or engagement of his services against the Executive’s entitlements under\nthis Agreement. Moreover, subject to Executive’s compliance with the covenants set forth in Sections 4, 5 and 6 of this\nAgreement, Executive shall be free to pursue any unsolicited, non-competitive opportunities for employment or services\nas may arise from the Company’s customers, vendors, employees and affiliates.\n17\n9. Section 16 Reports. Executive and the Company agree that notwithstanding Executive’s termination as an\nexecutive officer and a director of Escalade as of the Employment End Date, Executive may continue to be subject to the\nreporting requirements of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations\nthereunder for up to six months following the Employment End Date. Accordingly, Executive agrees to provide timely\nnotice to Escalade’s chief financial officer of all transactions undertaken by Executive in Escalade common stock,\nincluding the purchase or sale of any shares of Escalade common stock and the exercise of any stock options, during the\nsix month period following the Employment End Date, and the Company shall prepare and file the appropriate Section 16\nreports with the Securities and Exchange Commission on behalf of Executive. Upon the conclusion of such six month\nperiod, the Company acknowledges that Executive will no longer be deemed an affiliate of the Company and, absent\nExecutive being in possession of material, non-public information concerning the Company, may freely engage in trades\nof Escalade securities.\n10. Remedies.\n(a) Arbitration; Submission to Jurisdiction. Any dispute that may arise between the Company and\nExecutive relating to this Agreement and the subject matter hereof shall be settled by binding arbitration in accordance\nwith Section 9 of the Executive Agreement.\n(b) Injunctive Relief. Executive agrees that in the event of any actual or threatened breach by him of any of\nthe provisions contained in this Agreement, including those covenants specifically set forth in Sections 3, 4, 5 and 6\nhereof, the Company shall be entitled to seek immediate temporary injunctive and other equitable relief, without the\nnecessity of showing actual monetary damages, subject to hearing as soon thereafter as possible. In the event of such\ninjunctive relief, the periods of time referred to in Sections 5 and 6 shall be deemed extended for a period equal to the\nrespective period during which Employee is in breach thereof, in order to provide for injunctive relief and specific\nperformance for a period equal to the full term thereof and the Company shall be entitled to cease its obligations to\nExecutive pursuant to Section 2. In the event that the Company breaches its obligations to make payments and to\nprovide the benefits specified in Section 2 hereof, Executive may seek specific performance in addition to monetary\ndamages and Executive will not be subject to the provisions of Section 4, 5 or 6 hereof. Nothing contained herein shall be\nconstrued as prohibiting Executive or the Company from pursuing any other remedies available to it for such breach or\nthreatened breach, including the recovery of any damages which it is able to prove.\n18\n11. Mutual Release. In consideration of the payments and benefits set forth in this Agreement, such payments\nand benefits being good and valuable consideration:\n(a) Release by Executive. Subject to Section 10(b), Executive, on his own behalf and on behalf of his heirs,\nadministrators, executors, successors, assigns and personal representatives, covenants not to sue and hereby fully and\nforever releases, acquits and discharges the Company, its shareholders, directors, officers, employees, agents,\nrepresentatives, insurance carriers, and their successors and assigns (collectively the “Releasees”), from any and all\nclaims, demands, actions and causes of action of every kind, nature or description (collectively “claims”) that Executive\nmay have had, may now have, or may hereafter have against Releasees, including without limitation any and all claims in\nany way related to or based upon Executive’s employment with the Company through the Effective Date and/or the\ncessation of Executive’s service as an employee, executive officer and director of the Company, including without\nlimitation any claims for breach of contract, implied contract, promissory estoppel, tortious conduct or claims arising\nunder any federal or state statute or law or local ordinance, including but not limited to: the Age Discrimination in\nEmployment Act as amended (“ADEA”); Older Workers’ Benefit Protection Act (“OWBPA”); Americans with Disabilities\nAct (“ADA”) as amended; the Family and Medical Leave Act (“FMLA”); Title VII of the Civil Rights Act of 1964; the Civil\nRights Acts of 1991; the Employee Retirement Income Security Act (“ERISA”); 42 U.S .C. § 1981; 29 U.S .C . § 206(d)(1);\nSection 503 and 504 of the Rehabilitation Disabilities Act; the WARN Act; Indiana’s fair employment practices statutes;\nany other federal, state or local law dealing with employment discrimination; and any federal or state “Whistleblower” law,\nexisting as of the date of this Agreement. Provided, however, that if the Company were to breach this Agreement, this\nrelease would not bar an action by Executive against the Company to enforce its term(s) or any applicable law. In\naddition, this Section 11(a) shall not affect adversely any benefits to which Executive may be entitled arising out of any\nsocial security, workers' compensation or unemployment laws, or under the terms of any employee pension or welfare or\nbenefit plans or programs of the Company, which may be payable now or in the future to Executive.\n(b) Acknowledgements by Executive. Executive specifically acknowledges and agrees that: (i) Executive is\nwaiving claims under the foregoing laws, including specifically the ADEA and the OWBPA; (ii) this waiver of any rights or\nclaims is knowing and voluntary; (iii) this Agreement is written in a manner that Executive understands; (iv) the Company\nhas hereby advised Executive to consult with an attorney before executing this Agreement and that Executive has so\nconsulted; (v) the waiver of rights under Section 11(a) does not waive rights or claims arising after the date of this\nAgreement; (vi) Executive has been given a period of 21 days within which to consider this Agreement; (vii) for a period\nof seven days following Executive’s execution of this Agreement, Executive may revoke this Agreement and this\nAgreement will not become enforceable or effective until the revocation period expires; and (viii) the waiver of rights in\nSection 11(a) is in exchange for consideration in addition to anything of value to which Executive was already entitled to\nreceive.\n(c) Release by the Company. Subject to Section 10(b), the Company, on behalf of itself and its successors\nand assigns, covenants not to sue and hereby fully and forever releases, acquits and discharges Executive and his\nsuccessors and assigns, from any and all claims, demands, actions and causes of action of every kind, nature or\ndescription (collectively “claims”) that the Company may have had, may now have, or may hereafter have against\nExecutive, including without limitation any and all claims in any way related to or based upon Executive’s employment\nwith the Company, its subsidiaries and affiliates through the Effective Date and/or the cessation of Executive’s service as\nan executive officer or director of the Company, including without limitation any claims for breach of contract, implied\ncontract, promissory estoppel, tortious conduct or claims arising under any federal or state statute or law or local\nordinance, existing as of the date of this Agreement. Provided, however, that if Executive were to breach this Agreement,\nthis release would not bar an action by the Company against Executive to enforce its term(s) or any applicable laws. In\naddition, this Section 11(c) shall not bar any action by the Company against Executive to enforce the terms of the\nCompany’s Policy for Recovery of Incentive Compensation and/or Section 5(b) of the Executive Agreement.\n19\n(d) Unknown Claims. This Agreement covers both claims that Executive and/or the Company know about\nand those that Executive and/or the Company may not know about. The parties hereto expressly waive all rights afforded\nby any statute that limits the effect of a release with respect to unknown claims, except as to any claims that Executive\nmay have as contemplated by the last two sentences of Section 11(b) or that Company may have as contemplated by\nthe last two sentences of Section 11(c). Each of Executive and the Company understand the significance of its respective\nrelease of unknown claims and the waiver of statutory protection against a release of unknown claims. However, this\nrelease shall not apply to any claim based on the fraud or intentional misconduct of the other party or to any act that is\ndetermined to be a criminal act under any federal, state or local law committed or perpetrated by Executive or the\nCompany at any time prior to and through the Effective Date. Neither Executive nor the Company, based on the\nknowledge of Escalade’s Board of Directors and of the Company’s executive officers other than Executive, is currently\naware of any fraud or intentional misconduct of the other party to this Agreement.\n(e) Future Claims Related to Employee and/or Shareholder Status. Notwithstanding any provision of this\nSection 11 that may be construed to the contrary, Executive and the Company agree that neither Executive nor the\nCompany waive or release the other party hereto from any claim that may arise based on events occurring after the\nEffective Date. Executive and the Company further agree that Executive may not, based upon Executive’s status as a\nshareholder of the Company, assert any claim subsequent to the Effective Date against the Company or any Releasees\nrelating to any potential claim or matter that is the subject of or is otherwise covered by the release granted by Executive\nin this Agreement or is in any way related to the event of Executive’s retirement from or cessation of employment with the\nCompany.\n(f) Additional Release. If the Employment End Date is a date later than the Effective Date, and provided\nthat Executive has signed and delivered on or promptly after the Employment End Date an additional general release\nsubstantially identical in form and substance to the release set forth in this Section 11 (the “Additional Release”) relating\nto claims arising or that may arise from events on and after the Effective Date through the Employment End Date (the\n“Continuing Employment Period”), which Additional Release by its terms has become effective and is in material\ncompliance with the terms of this Agreement, the Company further releases Executive, his successors and assigns from\nany and all claims, demands, actions and causes of action of every kind, nature or description (collectively “claims”) that\nthe Company have had, may now have, or may hereafter have against Executive, including without limitation any and all\nclaims in any way related to or based upon Executive’s employment with the Company during the Continuing\nEmployment Period and/or the cessation of Executive’s service as an employee of the Company, including without\nlimitation any claims for breach of contract, implied contract, promissory estoppel, tortious conduct or claims arising\nunder federal or state statute or law or local ordinance, existing as of the date of this Agreement and the Company shall\nsign and deliver at such time a general release to such effect identical in form and substance to the release contained\nherein, provided, however, that if either party were to breach this Agreement, such further release would not bar an\naction by the non-breaching party against the breaching party to enforce its terms or any applicable laws nor would such\nrelease cover any action based on a claim excluded from the release by Section 11(d).\n20\n12. Future Service as Employee, Executive Officer or Director. Executive agrees that his termination as an\nemployee, executive officer and director of the Company is irrevocable, and that the Company shall have no obligation\nwhatsoever to rehire, reappoint or elect Executive to any such officer, director or other position with the Company.\nExecutive further agrees that if he would seek any such position and is not so hired, nominated, appointed or elected,\nExecutive will not bring a claim against the Company and/or any Releasee for refusal to so hire, nominate, appoint or\nelect.\n13. Binding Effect; Authority. This Agreement shall bind the Executive’s heirs, executors, administrators,\npersonal representatives, spouse, dependents, successors and assigns. Escalade represents and warrants to Executive\nthat the individual signing this Agreement on behalf of the Company is duly authorized to enter into this Agreement and to\nbind the Company hereunder.\n14. Non-Admission. This Agreement shall not be construed as an admission by either party of any wrongdoing\nor any violation of any federal, state or local law, regulation or ordinance, and the parties specifically disclaim any\nwrongdoing or violation.\n15. Assignability. Neither this Agreement, nor any right or interest hereunder, shall be assignable by\nExecutive, his beneficiaries or legal representatives, without the prior written consent of an executive officer of Escalade.\n16. Entire Agreement. This Agreement sets forth the entire agreement between the parties with respect to the\nsubject matter hereof and supersedes any other written or oral promises concerning the subject matter of this Agreement\nexcept as expressly stated otherwise herein or except as expressly stated otherwise in the Executive Agreement. The\nterms of this Agreement may not be modified other than in a writing signed by the parties.\n17. Governing Law. This Agreement shall in all respects be interpreted, enforced and governed by the laws of\nthe State of Indiana without giving effect to provisions thereof regarding conflict of laws.\n18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall\nconstitute an original and all of which shall together constitute one and the same instrument.\nIn Witness Whereof, the parties have entered into this Agreement as of this __ day of _______, 20__.\n_____ ______ ______ ______ ______\nDavid L. Fetherman\n21\nESCALADE, INCORPORATED\nBy:\n_____ ______ ______ ______ _\nName:\n_____ ______ ______ _____\nTitle:\n_____ ______ ______ ______\n22	EXHIBIT A\nForm Of Waiver, Release, Non-Competition, Non-Solicitation and Non-Disclosure Agreement\nAGREEMENT\nThe following is an agreement (the “Agreemen ”) made and entered into on this ___ day of\n__________________ , 20__ (the “Effective Date”) by and between David L. Fetherman (“Executive”) and Escalade,\nIncorporated, an Indiana corporation (“E scaIade”) regarding Executive's termination from all positions held by Executive\nwith Escalade and its various subsidiaries and affiliates. Escalade and Executive are sometimes referred to collectively\nas the “parties”and individually as a "W and the term “Company” shall mean Escalade and its various subsidiaries\nand affiliates collectively.\nRLitalsr\nA. Executive is the Chief Executive Officer and Presidentof Escalade, a Director of Escalade, [and any other\npositions with Escalade] [and any positions as an officer and/or director of various subsidiaries and affiliates of Escalade];\nand\nB. Executive's employment with the Company [has terminated as of the Effective Date] [will terminate as of\n___________ , 20__] (the “E mployment End Date”); and\nC. Executive and the Company are parties to that certain Executive Severance Agreement dated as of\n__________ , 2016 (the “Executive Agreemen ”), which Executive Agreement represents the parties' mutual agreement\nwith respect to all matters related to Executive's termination of employment with the Company. All capitalized terms used\nin this Agreement and not defined herein shall have the meaning set forth in the Executive Agreement.\nNOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Company and\nExecutive agree as follows:\n1. Termination. Executive hereby affirms his termination from his positions as Chief Executive Officer and\nPresident of Escalade, as a Director of Escalade, and from all other executive officer and director positions that he holds\nwith Escalade and any of Escalade's subsidiaries and their affiliates, effective as of the Employment End Date. Executive\nacknowledges and agrees as of the Employment End Date he also retires as a trustee or other administrator of any and\nall Company benefit plans, including without limitation the Company's retirement plan. Executive and the Company agree\nthat Executive's resignation as a Director of Escalade is not related to any disagreement between them (otherthan as\nmay relate to the termination ofthe Executive's employment with the Company) that would require disclosure pursuant to\nItem 5.02(a) of Form 8-K or any successor provision thereto.\n13\n2. Compensation and Benefits. Provided that Executive fulfills his obligations as set forth in this Agreement,\nthe Company shall pay to Executive the Severance Benefits payable to him in accordance with the applicable terms of\nSection 4 of the Executive Agreement.\n3. Executive's Obligations. In consideration of the payments and benefits provided in Section 2 above,\nExecutive will:\n(a) fully cooperate and assistthe Company with any litigation matters or regulatory or agency proceedings for\nwhich his testimony or cooperation is requested by Company following the Effective Date, provided that he is reimbursed\nfor any reasonable and necessary expenses incurred as a result of his cooperation and assistance, and further provided\nthatthe Company and Executive shall discuss in advance of Executive's providing any such cooperation and assistance\nthe anticipated time commitment that would likely be required of Executive with respect to any such matter and shall\nmutually determine whether Executive should be compensated for his time and the amount of any such compensation, it\nbeing understood and agreed that if the parties cannot reach agreement as to any such compensation, then the\nCompany shall not request, and Executive shall not be required, to provide cooperation and assistance with respectto\nsuch litigation or proceeding;\n(b) sign all necessary resignations from the boards of directors and/or all other officer, employee and trustee\npositions of the Company, but in any event Executive shall be deemed to have resigned any such executive officer,\ndirector and trustee positions as of the Employment End Date;\n(c) through the Employment End Date, except as provided in clause (d) below, continue to comply with the\nCompany's Insider Trading Policy, Code of Ethics and all other Company policies and procedures applicable to\nemployees of the Company including, without limitation, no destruction of any documents belonging to or relating to the\nCompany or Executive's employment with the Company, whether in paper, electronic, digital or any otherformat, unless\nsuch destruction is approved in advance and observed by an officer ofthe Company specifically designated and\nauthorized by Escalade's Board of Directors;\n(d) comply with the Company's Policy for Recovery of Incentive Compensation through the end of the look\nback period, which look back period shall be deemed to commence on the Employment End Date and continue for three\nyears thereafter;\n(e) comply with all laws relating to the Company's business and operations as applicable to Executive and\nthe Company; and\n(f) comply with all covenants contained in the Executive Agreement and in this Agreement, including without\nlimitation Sections 4, 5 and 6 hereof.\n4. M utual N ondisparagement.\n(a) Executive's Covenant. Beginning on the Effective Date, Executive shall not make, participate in the\nmaking of, or encourage any other person to make, any statements, written or oral, which criticize, disparage, or defame\nthe reputation of, or which embarrass the Company, its subsidiaries and their affiliates or any of their respective present,\nformer or future directors, officers, executives, employees and/or shareholders.\n14\n(b) Company's Covenant. Beginning on the Effective Date, the Company shall not, and shall instruct the\nmembers of Escalade's Board of Directors and executive officers notto, make, participate in the making of, or encourage\nany employees or any other person to make, any statements, written or oral, which criticize, disparage, or defame the\nreputation of, or which are intended to embarrass, the Executive.\n5. Confidentiality. Executive understands and agrees that:\n(a) Escalade is required to describe the material terms of this Agreement in a Current Report on Form 8-K to\nbe filed with the Securities and Exchange Commission no laterthan four (4) business days afterthis Agreement is signed\nby the Executive and Escalade, and that the Company will attach this Agreement in its entirety as an Exhibit to such\npublic filing;\n(b) Executive has been through the Employment End Date in the course of employment with the Company\nentrusted with or obtained access to information proprietary to the Company with respect to the following (all of which\ninformation is referred to hereinafter collectively as the "|nformation"): the organization and management of the\nCompany; the names, addresses, buying habits, and other special information regarding past, present and potential\ncustomers, employees and suppliers of the Company; customer and supplier contracts and transactions or price lists of\nthe Company and their suppliers; products, services, programs and processes sold, licensed or developed by the\nCompany; technical data, plans and specifications, present and/orfuture development projects of the Company; financial\nand/or marketing data respecting the conduct ofthe present orfuture phases of business of the Company; computer\nprograms, systems and/or software; ideas, inventions, trademarks, trade secrets, business information, know-how,\nprocesses, improvements, designs, redesigns, discoveries and developments of the Company; and other information\nconsidered confidential by any of the Company or its customers or suppliers. At all times through the Employment End\nDate and thereafter, Executive agrees to retain the Information in absolute confidence and not to disclose the Information\nto any person or organization exceptas required in the performance of Executive's duties forthe Company as provided in\nthis Agreement, withoutthe express written consent of the Company; provided that Executive's obligation of\nconfidentiality shall not extend to any Information which becomes generally available to the public otherthan as a result\nof disclosure by Executive;\n(c) Executive and the Company agree that effective no laterthan __ days following {length of time will\ndepend upon information that Executive may have at the time of termination}the Employment End Date, Executive will\nno longer be privy to material, non-public information regarding the Company. Accordingly, the Company agrees that\nExecutive shall not be subject to the Company's Insider Trading Policy thereafter, provided, however, that if and to the\nextent that Executive may from time to time acquire knowledge of material, non-public information regarding the\nCompany, Executive acknowledges and agrees that he may not trade based upon such information and mustcomply\nwith all applicable laws prohibiting insider trading. The Company further agrees that it will not intentionally provide\nmaterial, non-public information to Executive following the Employment End Date except in connection with such events,\nactions or circumstances that would require stockholder approval and the Company has made a good faith determination\nthat it is necessary and appropriate to disclose such information to Executive given his then current ownership of\nEscalade common stock, and thatthe Company will use its reasonable bestefforts to preventany inadvertentdisclosures\nof material, non-public information to Executive;\n15\n(d) Notwithstanding the foregoing, in the event thatthe Executive is requested or required by law, regulatory\nauthority or other applicable judicial or governmental order to disclose any Information, the Executive will provide the\nCompany with prompt notice of any such request or requirement (if legally permissible) so that the Company may seek a\nprotective order or other appropriate remedy and/or waive compliance with the terms of this Agreement with respectto\nnon-disclosure of such Information. In the event that such protective order or other remedy is not obtained, orthat the\nCompany waives compliance with the terms hereof as set forth above, the Executive may disclose only that portion of the\nInformation which is legally required; and\n(e) On or promptly following the Employment End Date, Executive will return all Company issued electronic\ndevices (including without limitation, laptops, smart phone, tablets, and similar devices) and Company information to the\nCompany, will no longer access any Escalade data processing or information systems, and will allow the Company to\ninspect any and all electronic devices, whether owned by the Company or Executive, to delete any and all Company data\nand access to Company systems from such devices.\n6. Covenant Not to Compete, No Interference; No Solicitation. At all times through the twelfth month following\nthe Employment End Date (or if this period is unenforceable bylaw, then for such shorter period as shall be enforceable):\n(a) Executive will notengage in any business offering products or services related to the current business of\nthe Company, whether as a principal, partner, joint venture, agent, employee, salesman, consultant, director or officer,\nwhere such business or business activity is in competition with the Company in any geographic market where the\nCompany does business; provided, however, that Executive shall not be prohibited from performing services fora\nsubsidiary or division ofa competitive business, as long as (i) such subsidiary or division is not in competition with the\nCompany, (ii) the revenues of the competitive business relating to its products and services thatare in competition with\nthe Company constitute five percent (5%) or less of its total revenues, and (iii) the Executive abides by all other\nprovisions of this Agreement including without limitation Sections 4, 5, 6(b) and 6(c);\n(b) Executive will not interfere with or adversely affect, either directly or indirectly, the Company's\nrelationships with any person, firm, association, corporation or other entity which is known by Executive to be, or is\nincluded on any listing to which Executive had access during the course of his employmentas a customer, client,\nsupplier, consultant or employee of the Company, and Executive will not divert or change, or attempt to divert or change,\nany such relationship to the detriment of the Company orto the benefit of any other person, firm, association, corporation\nor other entity; and\n16\n(c) Executive will not induce, seek to induce or participate directly or indirectly with any third party in seeking\nto induce, any other employee of the Company to terminate his or her employment relationship with the Company,\nprovided, however, that this restriction shall not prohibit Executive from hiring any employee who seeks employment from\nExecutive or any third party with whom Executive may be employed or affiliated with in the future on an unsolicited basis\nas long as such employment is not in competition with any business or operations of the Company.\nExecutive acknowledges and agrees thatthe covenants, restrictions, agreements, and obligations set forth\nherein are founded upon valuable consideration, and, with respect to the covenants, restrictions, agreements, and\nobligations setforth in this Section 6 are reasonable in duration and geographic scope. The time period and geographical\narea set forth in this Section 6 are each divisible and separable, and, in the event thatthe covenants not to compete\nand/or not to divert business or employees contained therein are judicially held invalid or unenforceable as to such time\nperiod and/or geographical area, they will be valid and enforceable in such geographical area(s) and for such time\nperiod(s) which the court determines to be reasonable and enforceable. Executive agrees that in the event that any court\nof competentjurisdiction determines that the above covenants are invalid or unenforceable to join with the Company in\nrequesting such courtto construe the applicable provision by limiting or reducing it so as to be enforceable to the extent\ncompatible with the then applicable law. Furthermore, it is agreed that any period of restriction or covenant hereinabove\nstated shall not include any period of violation or period of time required for litigation or arbitration to enforce such\nrestrictions or covenants.\n7. Tax Liability; Tax Withholding. Executive acknowledges and agrees that he is responsible forthe payment of\nall taxes relating to the consideration to be provided to him as contemplated by this Agreement, including the payment of\nany taxes relating to his exercise of stock options and his receipt of any stock, cash or other consideration relating to any\nother equity incentive awards he may have received from the Company. Notwithstanding any other provision of this\nAgreement, the Company will withhold from any amounts payable under this Agreement, or any other benefits received\npursuant hereto, such federal, state and/or local taxes as shall be required to be withheld under any applicable law or\nregulation.\n8. No Mitigation; No Offset. In no event shall Executive be obligated to seek other employment orto take any\nother action that would mitigate the amounts payable to Executive underthis Agreement. In the event that Executive\nwould obtain subsequent employment, the Company may not offset any compensation or other amounts earned by\nExecutive from such subsequent employment or engagement of his services againstthe Executive's entitlements under\nthis Agreement. Moreover, subject to Executive's compliance with the covenants set forth in Sections 4, 5 and 6 of this\nAgreement, Executive shall be free to pursue any unsolicited, non-competitive opportunities for employment or services\nas may arise from the Company's customers, vendors, employees and affiliates.\nl7\n9. Section 16 Reports. Executive and the Company agree that notwithstanding Executive's termination as an\nexecutive officer and a director of Escalade as of the Employment End Date, Executive may continue to be subjectto the\nreporting requirements of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations\nthereunder for up to six months following the Employment End Date. Accordingly, Executive agrees to provide timely\nnotice to Escalade's chief financial officer ofall transactions undertaken by Executive in Escalade common stock,\nincluding the purchase or sale of any shares of Escalade common stock and the exercise of any stock options, during the\nsix month period following the Employment End Date, and the Company shall prepare and file the appropriate Section 16\nreports with the Securities and Exchange Commission on behalf of Executive. Upon the conclusion of such six month\nperiod, the Company acknowledges that Executive will no longer be deemed an affiliate of the Company and, absent\nExecutive being in possession of material, non-public information concerning the Company, may freely engage in trades\nof Escalade securities.\n10. Remedies.\n(a) Arbitration; Submission to | urisdiction. Any dispute that may arise between the Company and\nExecutive relating to this Agreement and the subject matter hereof shall be settled by binding arbitration in accordance\nwith Section 9 of the Executive Agreement.\n(b) lniunctive Relief. Executive agrees that in the event of any actual orthreatened breach by him of any of\nthe provisions contained in this Agreement, including those covenants specifically set forth in Sections 3, 4, 5 and 6\nhereof, the Company shall be entitled to seek immediate temporary injunctive and other equitable relief, without the\nnecessity ofshowing actual monetary damages, subjectto hearing as soon thereafter as possible. In the event ofsuch\ninjunctive relief, the periods of time referred to in Sections 5 and 6 shall be deemed extended fora period equal to the\nrespective period during which Employee is in breach thereof, in orderto provide for injunctive reliefand specific\nperformance for a period equal to the full term thereof and the Company shall be entitled to cease its obligations to\nExecutive pursuantto Section 2. In the event thatthe Company breaches its obligations to make payments and to\nprovide the benefits specified in Section 2 hereof, Executive may seek specific performance in addition to monetary\ndamages and Executive will not be subjectto the provisions ofSection 4, 5 or6 hereof. Nothing contained herein shall be\nconstrued as prohibiting Executive or the Company from pursuing any other remedies available to it for such breach or\nthreatened breach, including the recovery ofany damages which it is able to prove.\n18\n11. Mutual Release. In consideration of the payments and benefits set forth in this Agreement, such payments\nand benefits being good and valuable consideration:\n(a) Release by Executive. Subjectto Section 10(b), Executive, on his own behalfand on behalfof his heirs,\nadministrators, executors, successors, assigns and personal representatives, covenants not to sue and hereby fully and\nforever releases, acquits and discharges the Company, its shareholders, directors, officers, employees, agents,\nrepresentatives, insurance carriers, and their successors and assigns (collectively the “Releasees”), from any and all\nclaims, demands, actions and causes ofaction of every kind, nature or description (collectively “claims”) that Executive\nmay have had, may now have, or may hereafter have against Releasees, including without limitation any and all claims in\nany way related to or based upon Executive's employment with the Company through the Effective Date and/orthe\ncessation of Executive's service as an employee, executive officer and director of the Company, including without\nlimitation any claims for breach of contract, implied contract, promissory estoppel, tortious conduct or claims arising\nunder any federal or state statute or law or local ordinance, including but not limited to: the Age Discrimination in\nEmploymentAct as amended (“ADEA”); Older Workers' Benefit Protection Act (“OWBPA”); Americans with Disabilities\nAct (“ADA”) as amended; the Family and Medical Leave Act (“FMLA”); Title VII of the Civil Rights Act of 1964; the Civil\nRights Acts of 1991; the Employee Retirement Income Security Act (“ERlSA”); 42 U.S.C.§ 1981; 29 U.S.C.§ 206(d)(1);\nSection 503 and 504 of the Rehabilitation Disabilities Act; the WARN Act; Indiana's fair employment practices statutes;\nany otherfederal, state or local law dealing with employment discrimination; and any federal or state 'Whistleblower” law,\nexisting as of the date of this Agreement. Provided, however, that if the Company were to breach this Agreement, this\nrelease would not bar an action by Executive againstthe Company to enforce its term(s) or any applicable law. In\naddition, this Section 11(a) shall not affect adversely any benefits to which Executive may be entitled arising out of any\nsocial security, workers' compensation or unemployment laws, or under the terms of any employee pension or welfare or\nbenefit plans or programs of the Company, which may be payable now or in the future to Executive.\n(b) Acknowledgements by Executive. Executive specifically acknowledges and agrees that: (i) Executive is\nwaiving claims underthe foregoing laws, including specifically the ADEA and the OWBPA; (ii) this waiver of any rights or\nclaims is knowing and voluntary; (iii) this Agreement is written in a mannerthat Executive understands; (iv) the Company\nhas hereby advised Executive to consult with an attorney before executing this Agreement and that Executive has so\nconsulted; (v) the waiver of rights under Section 11(a) does not waive rights or claims arising after the date of this\nAgreement; (vi) Executive has been given a period of 21 days within which to considerthis Agreement; (vii) for a period\nof seven days following Executive's execution of this Agreement, Executive may revoke this Agreement and this\nAgreement will not become enforceable or effective until the revocation period expires; and (viii) the waiver of rights in\nSection 11(a) is in exchange for consideration in addition to anything of value to which Executive was already entitled to\nreceive.\n(c) Release by the Company. Subjectto Section 10(b), the Company, on behalfof itselfand its successors\nand assigns, covenants not to sue and hereby fully and forever releases, acquits and discharges Executive and his\nsuccessors and assigns, from any and all claims, demands, actions and causes of action of every kind, nature or\ndescription (collectively “claims”) that the Company may have had, may now have, or may hereafter have against\nExecutive, including without limitation any and all claims in any way related to or based upon Executive's employment\nwith the Company, its subsidiaries and affiliates through the Effective Date and/or the cessation of Executive's service as\nan executive officer or director of the Company, including without limitation any claims for breach of contract, implied\ncontract, promissory estoppel, tortious conduct or claims arising under any federal or state statute or law or local\nordinance, existing as of the date of this Agreement. Provided, however, that if Executive were to breach this Agreement,\nthis release would not bar an action by the Company against Executive to enforce its term(s) or any applicable laws. In\naddition, this Section 11(c) shall not bar any action by the Company against Executive to enforce the terms of the\nCompany's Policy for Recovery of Incentive Compensation and/or Section 5(b) of the Executive Agreement.\n19\n(d) Unknown Claims. This Agreement covers both claims that Executive and/orthe Company know about\nand those that Executive and/orthe Company may not know about. The parties hereto expressly waive all rights afforded\nby any statute that limits the effect of a release with respect to unknown claims, except as to any claims that Executive\nmay have as contemplated by the lasttwo sentences ofSection 11(b) orthatCompany may have as contemplated by\nthe lasttwo sentences of Section 11(c). Each of Executive and the Company understand the significance of its respective\nrelease of unknown claims and the waiver of statutory protection against a release of unknown claims. However, this\nrelease shall not apply to any claim based on the fraud or intentional misconduct of the other party orto any actthat is\ndetermined to be a criminal act under any federal, state or local law committed or perpetrated by Executive or the\nCompany at any time prior to and through the Effective Date. Neither Executive northe Company, based on the\nknowledge of Escalade's Board of Directors and of the Company's executive officers otherthan Executive, is currently\naware of any fraud or intentional misconduct of the other party to this Agreement.\n(e) Future Claims Related to Employee and/or Shareholder Status. Notwithstanding any provision of this\nSection 11 that may be construed to the contrary, Executive and the Company agree that neither Executive northe\nCompany waive or release the other party hereto from any claim that may arise based on events occurring afterthe\nEffective Date. Executive and the Company further agree that Executive may not, based upon Executive's status as a\nshareholder ofthe Company, assert any claim subsequent to the Effective Date againstthe Company or any Releasees\nrelating to any potential claim or matterthat is the subject of or is otherwise covered by the release granted by Executive\nin this Agreement or is in any way related to the event of Executive's retirement from or cessation of employment with the\nCompany.\n(f) Additional Release. lfthe Employment End Date is a date laterthan the Effective Date, and provided\nthat Executive has signed and delivered on or promptly after the Employment End Date an additional general release\nsubstantially identical in form and substance to the release set forth in this Section 11 (the “Additional Release”) relating\nto claims arising or that may arise from events on and afterthe Effective Date through the Employment End Date (the\n“Continuing Employment Period”), which Additional Release by its terms has become effective and is in material\ncompliance with the terms of this Agreement, the Company further releases Executive, his successors and assigns from\nany and all claims, demands, actions and causes of action of every kind, nature or description (collectively “claims”) that\nthe Company have had, may now have, or may hereafter have against Executive, including without limitation any and all\nclaims in any way related to or based upon Executive's employment with the Company during the Continuing\nEmployment Period and/or the cessation of Executive's service as an employee of the Company, including without\nlimitation any claims for breach of contract, implied contract, promissory estoppel, tortious conduct or claims arising\nunder federal or state statute or law or local ordinance, existing as of the date of this Agreement and the Company shall\nsign and deliver atsuch time a general release to such effect identical in form and substance to the release contained\nherein, provided, however, that if either party were to breach this Agreement, such further release would not bar an\naction by the non-breaching party against the breaching party to enforce its terms or any applicable laws nor would such\nrelease cover any action based on a claim excluded from the release by Section 11(d).\n20\n12. Future Service as Employee, Executive Officer or Director. Executive agrees that his termination as an\nemployee, executive officer and director of the Company is irrevocable, and thatthe Company shall have no obligation\nwhatsoeverto rehire, reappoint or elect Executive to any such officer, director or other position with the Company.\nExecutive further agrees that if he would seek any such position and is notso hired, nominated, appointed or elected,\nExecutive will not bring a claim against the Company and/or any Releasee for refusal to so hire, nominate, appoint or\nelect.\n13. Binding Effect; Authority. This Agreement shall bind the Executive's heirs, executors, administrators,\npersonal representatives, spouse, dependents, successors and assigns. Escalade represents and warrants to Executive\nthat the individual signing this Agreement on behalf of the Company is duly authorized to enter into this Agreement and to\nbind the Company hereunder.\n14. Non-Admission. This Agreement shall not be construed as an admission by either party of any wrongdoing\nor any violation of any federal, state or local law, regulation or ordinance, and the parties specifically disclaim any\nwrongdoing or violation.\n15. Assignability. Neitherthis Agreement, nor any rightor interest hereunder, shall be assignable by\nExecutive, his beneficiaries or legal representatives, without the prior written consent of an executive officer of Escalade.\n16. Entire Agreement. This Agreement sets forth the entire agreement between the parties with respect to the\nsubject matter hereof and supersedes any other written or oral promises concerning the subject matter of this Agreement\nexcept as expressly stated otherwise herein or except as expressly stated otherwise in the Executive Agreement. The\nterms of this Agreement may not be modified other than in a writing signed by the parties.\n17. Governing Law. This Agreement shall in all respects be interpreted, enforced and governed by the laws of\nthe State of Indiana without giving effect to provisions thereof regarding conflict of laws.\n18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall\nconstitute an original and all of which shall together constitute one and the same instrument.\nIn Witness Whereof, the parties have entered into this Agreement as of this __ day of , 20__\nDavid L. F etherman\n21\nESCALADEJNCORPORATED\nBy\nName\nTHE\n22	EXHIBIT A\nForm Of Waiver, Release, Non-Competition, Non-Solicitation and Non-Disclosure Agreement\nAGREEMENT\nThe following is an agreement (the "Agreement") made and entered into on this\nday of\n20 (the "Effective Date") by and between David L. Fetherman ("E xecutive") and Escalade,\nIncorporated, an Indiana corporation ("E scalade") regarding Executive's termination from all positions held by Executive\nwith Escalade and its various subsidiaries and affiliates. Escalade and Executive are sometimes referred to collectively\nas the "parties" and individually as a "party," and the term "Company" shall mean Escalade and its various subsidiaries\nand affiliates collectively.\nRecitals:\nA. Executive is the Chief Executive Officer and President of Escalade, a Director of Escalade, [and any other\npositions with Escalade] [and any positions as an officer and/or director of various subsidiaries and affiliates of Escalade];\nand\nB. Executive's employment with the Company [has terminated as of the Effective Date] [will terminate as of\n(the "Employment End Date"); and\nC. Executive and the Company are parties to that certain Executive Severance Agreement dated as of\n2016 (the "Executive Agreement"), which Executive Agreement represents the parties' mutual agreement\nwith respect to all matters related to Executive's termination of employment with the Company. All capitalized terms used\nin this Agreement and not defined herein shall have the meaning set forth in the Executive Agreement.\nNOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Company and\nExecutive agree as follows:\n1. Termination Executive hereby affirms his termination from his positions as Chief Executive Officer and\nPresident of Escalade, as a Director of Escalade, and from all other executive officer and director positions that he holds\nwith Escalade and any of Escalade's subsidiaries and their affiliates, effective as of the Employment End Date. Executive\nacknowledges and agrees as of the Employment End Date he also retires as a trustee or other administrator of any and\nall Company benefit plans, including without limitation the Company's retirement plan. Executive and the Company agree\nthat xecutive's resignation as a Director of Escalade is not related to any disagreement between them (other than as\nmay relate to the termination of the Executive's employment with the Company) that would require disclosure pursuant to\nItem 5.02(a) of Form 8-K or any successor provision thereto.\n13\n2. Compensation and Benefits. Provided that Executive fulfills his obligations as set forth in this Agreement,\nthe Company shall pay to Executive the Severance Benefits payable to him in accordance with the applicable terms of\nSection 4 of the Executive Agreement.\n3.\nExecutive's Obligations. In consideration of the payments and benefits provided in Section 2 above,\nExecutive will:\n(a) fully cooperate and assist the Company with any litigation matters or regulatory or agency proceedings for\nwhich his testimony or cooperation is requested by Company following the Effective Date, provided that he is reimbursed\nfor any reasonable and necessary expenses incurred as a result of his cooperation and assistance, and further provided\nthat the Company and Executive shall discuss in advance of Executive's providing any such cooperation and assistance\nthe anticipated time commitment that would likely be required of xecutive with respect to any such matter and shal\nmutually determine whether xecutive should be compensated for his time and the amount of any such compensation, it\nbeing understood and agreed that if the parties cannot reach agreement as to any such compensation, then the\nCompany shall not request, and Executive shall not be required, to provide cooperation and assistance with respect to\nsuch litigation or proceeding;\n(b) sign all necessary resignations from the boards of directors and/or all other officer, employee and trustee\npositions of the Company, but in any event E xecutive shall be deemed to have resigned any such executive officer,\ndirector and trustee positions as of the Employment End Date;\n(c) through the Employment End Date, except as provided in clause (d) below, continue to comply with the\nCompany's Insider Trading Policy, Code of Ethics and all other Company policies and procedures applicable to\nemployees of the Company including, without limitation, no destruction of any documents belonging to or relating to the\nCompany or Executive's employment with the Company whether in paper, electronic, digital or any other format, unless\nsuch destruction is approved in advance and observed by an officer of the Company specifically designated and\nauthorized by Escalade's Board of Directors;\n(d) comply with the Company's Policy for Recovery of Incentive Compensation through the end of the look\nback period, which look back period shall be deemed to commence on the Employment End Date and continue for three\nyears thereafter;\n(e) comply with all laws relating to the Company's business and operations as applicable to Executive and\nthe Company; and\n(f) comply with all covenants contained in the Executive Agreement and in this Agreement, including without\nlimitation Sections 4, 5 and 6 hereof.\n4. Mutual Nondisparagement\n(a) xecutive's Covenant. Beginning on the Effective Date, Executive shall not make, participate in the\nmaking of, or encourage any other person to make, any statements, written or oral, which criticize, disparage, or defame\nthe reputation of, or which embarrass the Company, its subsidiaries and their affiliates or any of their respective present,\nformer or future directors, officers, executives, employees and/or shareholders.\n14\n(b) Company's Covenant Beginning on the Effective Date, the Company shall not, and shall instruct the\nmembers of Escalade's Board of Directors and executive officers not to, make, participate in the making of, or encourage\nany employees or any other person to make, any statements, written or oral, which criticize, disparage, or defame the\nreputation of, or which are intended to embarrass, the Executive.\n5. Confidentiality. Executive understands and agrees that:\n(a) Escalade is required to describe the material terms of this Agreement in a Current Report on Form 8-K to\nbe filed with the Securities and Exchange Commission no later than four (4) business days after this Agreement is signed\nby the Executive and Escalade, and that the Company will attach this Agreement in its entirety as an Exhibit to such\npublic filing;\n(b) xecutive has been through the Employment End Date in the course of employment with the Company\nentrusted with or obtained access to information proprietary to the Company with respect to the following (all of which\ninformation is referred to hereinafter collectively as the "Information"): the organization and management of the\nCompany; the names, addresses, buying habits, and other special information regarding past, present and potential\ncustomers, employees and suppliers of the Company; customer and supplier contracts and transactions or price lists of\nthe Company and their suppliers products, services, programs and processes sold, licensed or developed by the\nCompany; technical data, plans and specifications, present and/or future development projects of the Company; financial\nand/or marketing data respecting the conduct of the present or future phases of business of the Company; computer\nprograms, systems and/or software; ideas, inventions, trademarks, trade secrets, business information, know-how,\nprocesses, improvements, designs, redesigns, discoveries and developments of the Company; and other information\nconsidered confidential by any of the Company or its customers or suppliers. At all times through the mployment nd\nDate and thereafter, Executive agrees to retain the Information in absolute confidence and not to disclose the Information\nto any person or organization except as required in the performance of Executive's duties for the Company as provided in\nthis Agreement, without the express written consent of the Company; provided that Executive's obligation of\nconfidentiality shall not extend to any Information which becomes generally available to the public other than as a result\nof disclosure by Executive;\n(c) Executive and the Company agree that effective no later than days following {ength of time will\ndepend upon information that E xecutive may have at the time of termination} the E mployment nd Date, E xecutive will\nno longer be privy to material, non-public information regarding the Company. Accordingly, the Company agrees that\nxecutive shall not be subject to the Company's Insider Trading Policy thereafter, provided, however, that if and to the\nextent that E xecutive may from time to time acquire knowledge of material, non-public information regarding the\nCompany, xecutive acknowledges and agrees that he may not trade based upon such information and must comply\nwith all applicable laws prohibiting insider trading. The Company further agrees that it will not intentionally provide\nmaterial, non-public information to Executive following the mployment nd Date except in connection with such events,\nactions or circumstances that would require stockholder approval and the Company has made a good faith determination\nthat it is necessary and appropriate to disclose such information to xecutive given his then current ownership of\nEscalade common stock, and that the Company will use its reasonable best efforts to prevent any inadvertent disclosures\nof material, non-public information to Executive;\n15\n(d) Notwithstanding the foregoing, in the event that the Executive is requested or required by law, regulatory\nauthority or other applicable judicial or governmenta order to disclose any Information, the Executive will provide the\nCompany with prompt notice of any such request or requirement (if legally permissible) so that the Company may seek a\nprotective order or other appropriate remedy and/or waive compliance with the terms of this Agreement with respect to\nnon-disclosure of such Information. In the event that such protective order or other remedy is not obtained, or that the\nCompany waives compliance with the terms hereof as set forth above, the xecutive may disclose only that portion of the\nInformation which is legally required; and\n(e) On or promptly following the Employment End Date, Executive will return all Company issued electronic\ndevices (including without limitation, laptops, smart phone, tablets, and similar devices) and Company information to the\nCompany, will no longer access any Escalade data processing or information systems, and will allow the Company to\ninspect any and all electronic devices, whether owned by the Company or Executive, to delete any and all Company data\nand access to Company systems from such devices.\n6.\nCovenant Not to Compete, No Interference; No Solicitation At all times through the twelfth month following\nthe E mployment End Date (or if this period is unenforceable by law, then for such shorter period as shal be enforceable):\n(a) xecutive will not engage in any business offering products or services related to the current business of\nthe Company, whether as a principal, partner, joint venture, agent, employee, salesman, consultant, director or officer,\nwhere such business or business activity is in competition with the Company in any geographic market where the\nCompany does business; provided, however, that E xecutive shal not be prohibited from performing services for a\nsubsidiary or division of a competitive business, as long as (i) such subsidiary or division is not in competition with the\nCompany, (ii) the revenues of the competitive business relating to its products and services that are in competition with\nthe Company constitute five percent (5%) or less of its total revenues, and (iii) the xecutive abides by all other\nprovisions of this Agreement including without limitation Sections 4, 5, 6(b) and 6(c);\n(b) xecutive will not interfere with or adversely affect, either directly or indirectly, the Company's\nrelationships with any person, firm, association, corporation or other entity which is known by Executive to be, or is\nincluded on any listing to which Executive had access during the course of his employment as a customer, client,\nsupplier, consultant or employee of the Company, and Executive will not divert or change, or attempt to divert or change,\nany such relationship to the detriment of the Company or to the benefit of any other person, firm, association, corporation\nor other entity; and\n16\n(c) Executive will not induce, seek to induce or participate directly or indirectly with any third party in seeking\nto induce, any other employee of the Company to terminate his or her employment relationship with the Company,\nprovided, however, that this restriction shall not prohibit Executive from hiring any employee who seeks employment from\nExecutive or any third party with whom Executive may be employed or affiliated with in the future on an unsolicited basis\nas long as such employment is not in competition with any business or operations of the Company.\nExecutive acknowledges and agrees that the covenants, restrictions, agreements, and obligations set forth\nherein are founded upon valuable consideration, and, with respect to the covenants, restrictions, agreements, and\nobligations set forth in this Section 6 are reasonable in duration and geographic scope. The time period and geographica\narea set forth in this Section 6 are each divisible and separable, and, in the event that the covenants not to compete\nand/or not to divert business or employees contained therein are judicially held invalid or unenforceable as to such time\nperiod and/or geographical area, they will be valid and enforceable in such geographical area(s) and for such time\nperiod(s) which the court determines to be reasonable and enforceable. Executive agrees that in the event that any court\nof competent jurisdiction determines that the above covenants are invalid or unenforceable to join with the Company in\nrequesting such court to construe the applicable provision by limiting or reducing it so as to be enforceable to the extent\ncompatible with the then applicable law. F urthermore, it is agreed that any period of restriction or covenant hereinabove\nstated shall not include any period of violation or period of time required for litigation or arbitration to enforce such\nrestrictions or covenants.\n7.\nTax Liability; Tax Withholding E xecutive acknowledges and agrees that he is responsible for the payment of\nall taxes relating to the consideration to be provided to him as contemplated by this Agreement, including the payment of\nany taxes relating to his exercise of stock options and his receipt of any stock, cash or other consideration relating to any\nother equity incentive awards he may have received from the Company. Notwithstanding any other provision of this\nAgreement, the Company will withhold from any amounts payable under this Agreement, or any other benefits received\npursuant hereto, such federal, state and/or local taxes as shall be required to be withheld under any applicable law or\nregulation.\n8. No Mitigation; No Offset. In no event shall E xecutive be obligated to seek other employment or to take any\nother action that would mitigate the amounts payable to xecutive under this Agreement. In the event that E xecutive\nwould obtain subsequent employment, the Company may not offset any compensation or other amounts earned by\nExecutive from such subsequent employment or engagement of his services against the Executive's entitlements under\nthis Agreement. Moreover, subject to Executive's compliance with the covenants set forth in Sections 4, 5 and 6 of this\nAgreement, E xecutive shall be free to pursue any unsolicited, non-competitive opportunities for employment or services\nas may arise from the Company's customers, vendors, employees and affiliates.\n17\n9. Section 16 Reports. E xecutive and the Company agree that notwithstanding E xecutive's termination as an\nexecutive officer and a director of Escalade as of the Employment End Date, Executive may continue to be subject to the\nreporting requirements of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations\nthereunder for up to six months following the Employment End Date. Accordingly, Executive agrees to provide timely\nnotice to Escalade's chief financial officer of all transactions undertaken by Executive in Escalade common stock,\nincluding the purchase or sale of any shares of Escalade common stock and the exercise of any stock options, during the\nsix month period following the E mployment End Date, and the Company shall prepare and file the appropriate Section 16\nreports with the Securities and Exchange Commission on behalf of xecutive. Upon the conclusion of such six month\nperiod, the Company acknowledges that Executive will no longer be deemed an affiliate of the Company and, absent\nExecutive being in possession of material, non-public information concerning the Company, may freely engage in trades\nof Escalade securities.\n10. Remedies.\n(a) Arbitration; Submission to urisdiction. Any dispute that may arise between the Company and\nxecutive relating to this Agreement and the subject matter hereof shall be settled by binding arbitration in accordance\nwith Section 9 of the Executive Agreement\n(b) Injunctive Relief Executive agrees that in the event of any actual or threatened breach by him of any of\nthe provisions contained in this Agreement, including those covenants specifically set forth in Sections 3, 4, 5 and 6\nhereof, the Company shall be entitled to seek immediate temporary injunctive and other equitable relief, without the\nnecessity of showing actual monetary damages, subject to hearing as soon thereafter as possible. In the event of such\ninjunctive relief, the periods of time referred to in Sections 5 and 6 shall be deemed extended for a period equal to the\nrespective period during which mployee is in breach thereof, in order to provide for injunctive relief and specific\nperformance for a period equa to the ful term thereof and the Company shall be entitled to cease its obligations to\nxecutive pursuant to Section 2. In the event that the Company breaches its obligations to make payments and to\nprovide the benefits specified in Section 2 hereof, Executive may seek specific performance in addition to monetary\ndamages and xecutive will not be subject to the provisions of Section 4, 5 or 6 hereof. Nothing contained herein shall\nbe\nconstrued as prohibiting Executive or the Company from pursuing any other remedies available to it for such breach or\nthreatened breach, including the recovery of any damages which it is able to prove.\n18\n11. Mutua Release. In consideration of the payments and benefits set forth in this Agreement, such payments\nand benefits being good and valuable consideration:\n(a) Release by Executive. Subject to Section 10(b), Executive, on his own behalf and on behalf of his heirs,\nadministrators, executors, successors, assigns and persona representatives, covenants not to sue and hereby fully and\nforever releases, acquits and discharges the Company, its shareholders, directors, officers, employees, agents,\nrepresentatives, insurance carriers, and their successors and assigns (collectively the "Releasees"), from any and all\nclaims, demands, actions and causes of action of every kind, nature or description (collectively "claims") that Executive\nmay have had, may now have, or may hereafter have against Releasees, including without limitation any and all claims in\nany way related to or based upon xecutive's employment with the Company through the Effective Date and/or the\ncessation of Executive's service as an employee, executive officer and director of the Company, including without\nlimitation any claims for breach of contract, implied contract, promissory estoppel, tortious conduct or claims arising\nunder any federal or state statute or law or local ordinance, including but not limited to: the Age Discrimination in\nmployment Act as amended ("ADEA"); Older Workers' Benefit rotection Act ("OWBPA"); Americans with Disabilities\nAct ("ADA") as amended; the amily and Medical Leave Act ("FMLA"); Title VII of the Civil Rights Act of 1964; the Civil\nRights Acts of 1991; the Employee Retirement Income Security Act ("ERISA"); 42 U.S.C. 1981; 29 U.S.C. S 206(d)(1)\nSection 503 and 504 of the Rehabilitation Disabilities Act; the WARN Act; Indiana's fair employment practices statutes;\nany other federal, state or local law dealing with employment discrimination; and any federal or state "Whistleblower" law,\nexisting as of the date of this Agreement. Provided, however, that if the Company were to breach this Agreement, this\nrelease would not bar an action by Executive against the Company to enforce its term(s) or any applicable law. In\naddition, this Section 11(a) shall not affect adversely any benefits to which Executive may be entitled arising out of any\nsocial security, workers' compensation or unemployment laws, or under the terms of any employee pension or welfare or\nbenefit plans or programs of the Company, which may be payable now or in the future to Executive.\n(b) Acknowledgements by Executive. xecutive specifically acknowledges and agrees that: (i) Executive is\nwaiving claims under the foregoing laws, including specifically the ADEA and the OWBPA; (ii) this waiver of any rights or\nclaims is knowing and voluntary; (iii) this Agreement is written in a manner that E xecutive understands; (iv) the Company\nhas hereby advised Executive to consult with an attorney before executing this Agreement and that Executive has so\nconsulted; (v) the waiver of rights under Section 11(a) does not waive rights or claims arising after the date of this\nAgreement; (vi) Executive has been given a period of 21 days within which to consider this Agreement; (vii) for a period\nof seven days following Executive's execution of this Agreement, Executive may revoke this Agreement and this\nAgreement will not become enforceable or effective until the revocation period expires; and (viii) the waiver of rights in\nSection 11(a) is in exchange for consideration in addition to anything of value to which E xecutive was already entitled to\nreceive.\n(c) Release by the Company. Subject to Section 10(b), the Company, on behalf of itself and its successors\nand assigns, covenants not to sue and hereby fully and forever releases, acquits and discharges Executive and his\nsuccessors and assigns, from any and all claims, demands, actions and causes of action of every kind, nature or\ndescription (collectively "claims") that the Company may have had, may now have, or may hereafter have against\nExecutive, including without limitation any and all claims in any way related to or based upon Executive's employment\nwith the Company, its subsidiaries and affiliates through the Effective Date and/or the cessation of Executive's service as\nan executive officer or director of the Company, including without limitation any claims for breach of contract, implied\ncontract, promissory estoppel, tortious conduct or claims arising under any federal or state statute or law or local\nordinance, existing as of the date of this Agreement Provided, however, that if Executive were to breach this Agreement,\nthis release would not bar an action by the Company against Executive to enforce its term(s) or any applicable laws. In\naddition, this Section 11(c) shall not bar any action by the Company against E xecutive to enforce the terms of the\nCompany's Policy for Recovery of Incentive Compensation and/or Section 5(b) of the Executive Agreement.\n19\n(d) Unknown Claims This Agreement covers both claims that Executive and/or the Company know about\nand those that Executive and/or the Company may not know about. The parties hereto expressly waive all rights afforded\nby any statute that limits the effect of a release with respect to unknown claims, except as to any claims that Executive\nmay have as contemplated by the last two sentences of Section 11(b) or that Company may have as contemplated by\nthe last two sentences of Section 11(c). Each of Executive and the Company understand the significance of its respective\nrelease of unknown claims and the waiver of statutory protection against a release of unknown claims. However, this\nrelease shall not apply to any claim based on the fraud or intentional misconduct of the other party or to any act that\nis\ndetermined to be a criminal act under any federal, state or local law committed or perpetrated by xecutive or the\nCompany at any time prior to and through the E ffective Date. Neither Executive nor the Company, based on the\nknowledge of Escalade's Board of Directors and of the Company's executive officers other than xecutive, is currently\naware of any fraud or intentional misconduct of the other party to this Agreement.\n(e) Future Claims Related to mployee and/or Shareholder Status. Notwithstanding any provision of this\nSection 11 that may be construed to the contrary, Executive and the Company agree that neither xecutive nor the\nCompany waive or release the other party hereto from any claim that may arise based on events occurring after the\nEffective Date. xecutive and the Company further agree that Executive may not, based upon xecutive's status as\na\nshareholder of the Company, assert any claim subsequent to the ffective Date against the Company or any Releasees\nrelating to any potential claim or matter that is the subject of or is otherwise covered by the release granted by Executive\nin this Agreement or is in any way related to the event of xecutive's retirement from or cessation of employment with the\nCompany.\n(f) Additional Release. If the Employment End Date is a date later than the Effective Date, and provided\nthat xecutive has signed and delivered on or promptly after the Employment nd Date an additional general release\nsubstantially identical in form and substance to the release set forth in this Section 11 (the "Additiona Release") relating\nto claims arising or that may arise from events on and after the Effective Date through the Employment End Date (the\n"Continuing Employment Period"), which Additional R elease by its terms has become effective and is in material\ncompliance with the terms of this Agreement, the Company further releases Executive, his successors and assigns from\nany and all claims, demands, actions and causes of action of every kind, nature or description (collectively "claims") that\nthe Company have had, may now have, or may hereafter have against Executive, including without limitation any and all\nclaims in any way related to or based upon Executive's employment with the Company during the Continuing\nmployment eriod and/or the cessation of Executive's service as an employee of the Company, including without\nlimitation any claims for breach of contract, implied contract, promissory estoppel, tortious conduct or claims arising\nunder federal or state statute or law or local ordinance, existing as of the date of this Agreement and the Company shall\nsign and deliver at such time a general release to such effect identical in form and substance to the release contained\nherein, provided, however, that if either party were to breach this Agreement, such further release would not bar an\naction by the non-breaching party against the breaching party to enforce its terms or any applicable laws nor would such\nrelease cover any action based on a claim excluded from the release by Section 11(d).\n20\n12. Future Service as Employee, Executive Officer or Director. Executive agrees that his termination as an\nemployee, executive officer and director of the Company is irrevocable, and that the Company shall have no obligation\nwhatsoever to rehire, reappoint or elect xecutive to any such officer, director or other position with the Company.\nExecutive further agrees that if he would seek any such position and is not SO hired, nominated, appointed or elected,\nExecutive will not bring a claim against the Company and/or any Releasee for refusal to So hire, nominate, appoint or\nelect.\n13. Binding E ffect; Authority. This Agreement shall bind the Executive's heirs, executors, administrators,\npersona representatives, spouse, dependents, successors and assigns. Escalade represents and warrants to Executive\nthat the individual signing this Agreement on behalf of the Company is duly authorized to enter into this Agreement and to\nbind the Company hereunder.\n14. Non-Admission. This Agreement shall not be construed as an admission by either party of any wrongdoing\nor any violation of any federal, state or local law, regulation or ordinance, and the parties specifically disclaim any\nwrongdoing or violation.\n15.\nAssignability. Neither this Agreement nor any right or interest hereunder, shall be assignable by\nExecutive, his beneficiaries or legal representatives, without the prior written consent of an executive officer of Escalade.\n16. Entire Agreement. This Agreement sets forth the entire agreement between the parties with respect to the\nsubject matter hereof and supersedes any other written or oral promises concerning the subject matter of this Agreement\nexcept as expressly stated otherwise herein or except as expressly stated otherwise in the Executive Agreement. The\nterms of this Agreement may not be modified other than in a writing signed by the parties.\n17. Governing Law. This Agreement shall in all respects be interpreted, enforced and governed by the laws of\nthe State of Indiana without giving effect to provisions thereof regarding conflict of laws.\n18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall\nconstitute an original and all of which shall together constitute one and the same instrument.\nIn Witness Whereof, the parties have entered into this Agreement as of this day of\nDavid L. Fetherman\n21\nESCALADE, INCORPORATED\nBy:\nName:\nTitle:\n22	EXHIBIT A\nForm Of Waiver, Release, Non-Competition, Non-Solicitation and Non-Disclosure Agreement\nAGREEMENT\nThe following is an agreement (the “Agreement”) made and entered into on this ___ day of\n_____ ______ ______ _, 20__ (the “Effective Date”) by and between David L. Fetherman (“Executive”) and Escalade,\nIncorporated, an Indiana corporation (“Escalade”) regarding Executive’s termination from all positions held by Executive\nwith Escalade and its various subsidiaries and affiliates. Escalade and Executive are sometimes referred to collectively\nas the “parties” and individually as a “party,” and the term “Company” shall mean Escalade and its various subsidiaries\nand affiliates collectively.\nRecitals:\nA. Executive is the Chief Executive Officer and President of Escalade, a Director of Escalade, [and any other\npositions with Escalade] [and any positions as an officer and/or director of various subsidiaries and affiliates of Escalade];\nand\nB. Executive’s employment with the Company [has terminated as of the Effective Date] [will terminate as of\n_____ ______ , 20__] (the “Employment End Date”); and\nC. Executive and the Company are parties to that certain Executive Severance Agreement dated as of\n_____ _____, 2016 (the “Executive Agreement”), which Executive Agreement represents the parties’ mutual agreement\nwith respect to all matters related to Executive’s termination of employment with the Company. All capitalized terms used\nin this Agreement and not defined herein shall have the meaning set forth in the Executive Agreement.\nNOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Company and\nExecutive agree as follows:\n1. Termination. Executive hereby affirms his termination from his positions as Chief Executive Officer and\nPresident of Escalade, as a Director of Escalade, and from all other executive officer and director positions that he holds\nwith Escalade and any of Escalade’s subsidiaries and their affiliates, effective as of the Employment End Date. Executive\nacknowledges and agrees as of the Employment End Date he also retires as a trustee or other administrator of any and\nall Company benefit plans, including without limitation the Company’s retirement plan. Executive and the Company agree\nthat Executive’s resignation as a Director of Escalade is not related to any disagreement between them (other than as\nmay relate to the termination of the Executive’s employment with the Company) that would require disclosure pursuant to\nItem 5.02(a) of Form 8-K or any successor provision thereto.\n13\n2. Compensation and Benefits. Provided that Executive fulfills his obligations as set forth in this Agreement,\nthe Company shall pay to Executive the Severance Benefits payable to him in accordance with the applicable terms of\nSection 4 of the Executive Agreement.\n3. Executive’s Obligations. In consideration of the payments and benefits provided in Section 2 above,\nExecutive will:\n(a) fully cooperate and assist the Company with any litigation matters or regulatory or agency proceedings for\nwhich his testimony or cooperation is requested by Company following the Effective Date, provided that he is reimbursed\nfor any reasonable and necessary expenses incurred as a result of his cooperation and assistance, and further provided\nthat the Company and Executive shall discuss in advance of Executive’s providing any such cooperation and assistance\nthe anticipated time commitment that would likely be required of Executive with respect to any such matter and shall\nmutually determine whether Executive should be compensated for his time and the amount of any such compensation, it\nbeing understood and agreed that if the parties cannot reach agreement as to any such compensation, then the\nCompany shall not request, and Executive shall not be required, to provide cooperation and assistance with respect to\nsuch litigation or proceeding;\n(b) sign all necessary resignations from the boards of directors and/or all other officer, employee and trustee\npositions of the Company, but in any event Executive shall be deemed to have resigned any such executive officer,\ndirector and trustee positions as of the Employment End Date;\n(c) through the Employment End Date, except as provided in clause (d) below, continue to comply with the\nCompany’s Insider Trading Policy, Code of Ethics and all other Company policies and procedures applicable to\nemployees of the Company including, without limitation, no destruction of any documents belonging to or relating to the\nCompany or Executive’s employment with the Company, whether in paper, electronic, digital or any other format, unless\nsuch destruction is approved in advance and observed by an officer of the Company specifically designated and\nauthorized by Escalade’s Board of Directors;\n(d) comply with the Company’s Policy for Recovery of Incentive Compensation through the end of the look\nback period, which look back period shall be deemed to commence on the Employment End Date and continue for three\nyears thereafter;\n(e) comply with all laws relating to the Company’s business and operations as applicable to Executive and\nthe Company; and\n(f) comply with all covenants contained in the Executive Agreement and in this Agreement, including without\nlimitation Sections 4, 5 and 6 hereof.\n4. Mutual Nondisparagement.\n(a) Executive’s Covenant. Beginning on the Effective Date, Executive shall not make, participate in the\nmaking of, or encourage any other person to make, any statements, written or oral, which criticize, disparage, or defame\nthe reputation of, or which embarrass the Company, its subsidiaries and their affiliates or any of their respective present,\nformer or future directors, officers, executives, employees and/or shareholders.\n14\n(b) Company’s Covenant. Beginning on the Effective Date, the Company shall not, and shall instruct the\nmembers of Escalade’s Board of Directors and executive officers not to, make, participate in the making of, or encourage\nany employees or any other person to make, any statements, written or oral, which criticize, disparage, or defame the\nreputation of, or which are intended to embarrass, the Executive.\n5. Confidentiality. Executive understands and agrees that:\n(a) Escalade is required to describe the material terms of this Agreement in a Current Report on Form 8-K to\nbe filed with the Securities and Exchange Commission no later than four (4) business days after this Agreement is signed\nby the Executive and Escalade, and that the Company will attach this Agreement in its entirety as an Exhibit to such\npublic filing;\n(b) Executive has been through the Employment End Date in the course of employment with the Company\nentrusted with or obtained access to information proprietary to the Company with respect to the following (all of which\ninformation is referred to hereinafter collectively as the "Information"): the organization and management of the\nCompany; the names, addresses, buying habits, and other special information regarding past, present and potential\ncustomers, employees and suppliers of the Company; customer and supplier contracts and transactions or price lists of\nthe Company and their suppliers; products, services, programs and processes sold, licensed or developed by the\nCompany; technical data, plans and specifications, present and/or future development projects of the Company; financial\nand/or marketing data respecting the conduct of the present or future phases of business of the Company; computer\nprograms, systems and/or software; ideas, inventions, trademarks, trade secrets, business information, know-how,\nprocesses, improvements, designs, redesigns, discoveries and developments of the Company; and other information\nconsidered confidential by any of the Company or its customers or suppliers. At all times through the Employment End\nDate and thereafter, Executive agrees to retain the Information in absolute confidence and not to disclose the Information\nto any person or organization except as required in the performance of Executive's duties for the Company as provided in\nthis Agreement, without the express written consent of the Company; provided that Executive’s obligation of\nconfidentiality shall not extend to any Information which becomes generally available to the public other than as a result\nof disclosure by Executive;\n(c) Executive and the Company agree that effective no later than __ days following {length of time will\ndepend upon information that Executive may have at the time of termination} the Employment End Date, Executive will\nno longer be privy to material, non-public information regarding the Company. Accordingly, the Company agrees that\nExecutive shall not be subject to the Company’s Insider Trading Policy thereafter, provided, however, that if and to the\nextent that Executive may from time to time acquire knowledge of material, non-public information regarding the\nCompany, Executive acknowledges and agrees that he may not trade based upon such information and must comply\nwith all applicable laws prohibiting insider trading. The Company further agrees that it will not intentionally provide\nmaterial, non-public information to Executive following the Employment End Date except in connection with such events,\nactions or circumstances that would require stockholder approval and the Company has made a good faith determination\nthat it is necessary and appropriate to disclose such information to Executive given his then current ownership of\nEscalade common stock, and that the Company will use its reasonable best efforts to prevent any inadvertent disclosures\nof material, non-public information to Executive;\n15\n(d) Notwithstanding the foregoing, in the event that the Executive is requested or required by law, regulatory\nauthority or other applicable judicial or governmental order to disclose any Information, the Executive will provide the\nCompany with prompt notice of any such request or requirement (if legally permissible) so that the Company may seek a\nprotective order or other appropriate remedy and/or waive compliance with the terms of this Agreement with respect to\nnon-disclosure of such Information. In the event that such protective order or other remedy is not obtained, or that the\nCompany waives compliance with the terms hereof as set forth above, the Executive may disclose only that portion of the\nInformation which is legally required; and\n(e) On or promptly following the Employment End Date, Executive will return all Company issued electronic\ndevices (including without limitation, laptops, smart phone, tablets, and similar devices) and Company information to the\nCompany, will no longer access any Escalade data processing or information systems, and will allow the Company to\ninspect any and all electronic devices, whether owned by the Company or Executive, to delete any and all Company data\nand access to Company systems from such devices.\n6. Covenant Not to Compete, No Interference; No Solicitation. At all times through the twelfth month following\nthe Employment End Date (or if this period is unenforceable by law, then for such shorter period as shall be enforceable):\n(a) Executive will not engage in any business offering products or services related to the current business of\nthe Company, whether as a principal, partner, joint venture, agent, employee, salesman, consultant, director or officer,\nwhere such business or business activity is in competition with the Company in any geographic market where the\nCompany does business; provided, however, that Executive shall not be prohibited from performing services for a\nsubsidiary or division of a competitive business, as long as (i) such subsidiary or division is not in competition with the\nCompany, (ii) the revenues of the competitive business relating to its products and services that are in competition with\nthe Company constitute five percent (5%) or less of its total revenues, and (iii) the Executive abides by all other\nprovisions of this Agreement including without limitation Sections 4, 5, 6(b) and 6(c);\n(b) Executive will not interfere with or adversely affect, either directly or indirectly, the Company’s\nrelationships with any person, firm, association, corporation or other entity which is known by Executive to be, or is\nincluded on any listing to which Executive had access during the course of his employment as a customer, client,\nsupplier, consultant or employee of the Company, and Executive will not divert or change, or attempt to divert or change,\nany such relationship to the detriment of the Company or to the benefit of any other person, firm, association, corporation\nor other entity; and\n16\n(c) Executive will not induce, seek to induce or participate directly or indirectly with any third party in seeking\nto induce, any other employee of the Company to terminate his or her employment relationship with the Company,\nprovided, however, that this restriction shall not prohibit Executive from hiring any employee who seeks employment from\nExecutive or any third party with whom Executive may be employed or affiliated with in the future on an unsolicited basis\nas long as such employment is not in competition with any business or operations of the Company.\nExecutive acknowledges and agrees that the covenants, restrictions, agreements, and obligations set forth\nherein are founded upon valuable consideration, and, with respect to the covenants, restrictions, agreements, and\nobligations set forth in this Section 6 are reasonable in duration and geographic scope. The time period and geographical\narea set forth in this Section 6 are each divisible and separable, and, in the event that the covenants not to compete\nand/or not to divert business or employees contained therein are judicially held invalid or unenforceable as to such time\nperiod and/or geographical area, they will be valid and enforceable in such geographical area(s) and for such time\nperiod(s) which the court determines to be reasonable and enforceable. Executive agrees that in the event that any court\nof competent jurisdiction determines that the above covenants are invalid or unenforceable to join with the Company in\nrequesting such court to construe the applicable provision by limiting or reducing it so as to be enforceable to the extent\ncompatible with the then applicable law. Furthermore, it is agreed that any period of restriction or covenant hereinabove\nstated shall not include any period of violation or period of time required for litigation or arbitration to enforce such\nrestrictions or covenants.\n7. Tax Liability; Tax Withholding. Executive acknowledges and agrees that he is responsible for the payment of\nall taxes relating to the consideration to be provided to him as contemplated by this Agreement, including the payment of\nany taxes relating to his exercise of stock options and his receipt of any stock, cash or other consideration relating to any\nother equity incentive awards he may have received from the Company. Notwithstanding any other provision of this\nAgreement, the Company will withhold from any amounts payable under this Agreement, or any other benefits received\npursuant hereto, such federal, state and/or local taxes as shall be required to be withheld under any applicable law or\nregulation.\n8. No Mitigation; No Offset. In no event shall Executive be obligated to seek other employment or to take any\nother action that would mitigate the amounts payable to Executive under this Agreement. In the event that Executive\nwould obtain subsequent employment, the Company may not offset any compensation or other amounts earned by\nExecutive from such subsequent employment or engagement of his services against the Executive’s entitlements under\nthis Agreement. Moreover, subject to Executive’s compliance with the covenants set forth in Sections 4, 5 and 6 of this\nAgreement, Executive shall be free to pursue any unsolicited, non-competitive opportunities for employment or services\nas may arise from the Company’s customers, vendors, employees and affiliates.\n17\n9. Section 16 Reports. Executive and the Company agree that notwithstanding Executive’s termination as an\nexecutive officer and a director of Escalade as of the Employment End Date, Executive may continue to be subject to the\nreporting requirements of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations\nthereunder for up to six months following the Employment End Date. Accordingly, Executive agrees to provide timely\nnotice to Escalade’s chief financial officer of all transactions undertaken by Executive in Escalade common stock,\nincluding the purchase or sale of any shares of Escalade common stock and the exercise of any stock options, during the\nsix month period following the Employment End Date, and the Company shall prepare and file the appropriate Section 16\nreports with the Securities and Exchange Commission on behalf of Executive. Upon the conclusion of such six month\nperiod, the Company acknowledges that Executive will no longer be deemed an affiliate of the Company and, absent\nExecutive being in possession of material, non-public information concerning the Company, may freely engage in trades\nof Escalade securities.\n10. Remedies.\n(a) Arbitration; Submission to Jurisdiction. Any dispute that may arise between the Company and\nExecutive relating to this Agreement and the subject matter hereof shall be settled by binding arbitration in accordance\nwith Section 9 of the Executive Agreement.\n(b) Injunctive Relief. Executive agrees that in the event of any actual or threatened breach by him of any of\nthe provisions contained in this Agreement, including those covenants specifically set forth in Sections 3, 4, 5 and 6\nhereof, the Company shall be entitled to seek immediate temporary injunctive and other equitable relief, without the\nnecessity of showing actual monetary damages, subject to hearing as soon thereafter as possible. In the event of such\ninjunctive relief, the periods of time referred to in Sections 5 and 6 shall be deemed extended for a period equal to the\nrespective period during which Employee is in breach thereof, in order to provide for injunctive relief and specific\nperformance for a period equal to the full term thereof and the Company shall be entitled to cease its obligations to\nExecutive pursuant to Section 2. In the event that the Company breaches its obligations to make payments and to\nprovide the benefits specified in Section 2 hereof, Executive may seek specific performance in addition to monetary\ndamages and Executive will not be subject to the provisions of Section 4, 5 or 6 hereof. Nothing contained herein shall be\nconstrued as prohibiting Executive or the Company from pursuing any other remedies available to it for such breach or\nthreatened breach, including the recovery of any damages which it is able to prove.\n18\n11. Mutual Release. In consideration of the payments and benefits set forth in this Agreement, such payments\nand benefits being good and valuable consideration:\n(a) Release by Executive. Subject to Section 10(b), Executive, on his own behalf and on behalf of his heirs,\nadministrators, executors, successors, assigns and personal representatives, covenants not to sue and hereby fully and\nforever releases, acquits and discharges the Company, its shareholders, directors, officers, employees, agents,\nrepresentatives, insurance carriers, and their successors and assigns (collectively the “Releasees”), from any and all\nclaims, demands, actions and causes of action of every kind, nature or description (collectively “claims”) that Executive\nmay have had, may now have, or may hereafter have against Releasees, including without limitation any and all claims in\nany way related to or based upon Executive’s employment with the Company through the Effective Date and/or the\ncessation of Executive’s service as an employee, executive officer and director of the Company, including without\nlimitation any claims for breach of contract, implied contract, promissory estoppel, tortious conduct or claims arising\nunder any federal or state statute or law or local ordinance, including but not limited to: the Age Discrimination in\nEmployment Act as amended (“ADEA”); Older Workers’ Benefit Protection Act (“OWBPA”); Americans with Disabilities\nAct (“ADA”) as amended; the Family and Medical Leave Act (“FMLA”); Title VII of the Civil Rights Act of 1964; the Civil\nRights Acts of 1991; the Employee Retirement Income Security Act (“ERISA”); 42 U.S .C. § 1981; 29 U.S .C . § 206(d)(1);\nSection 503 and 504 of the Rehabilitation Disabilities Act; the WARN Act; Indiana’s fair employment practices statutes;\nany other federal, state or local law dealing with employment discrimination; and any federal or state “Whistleblower” law,\nexisting as of the date of this Agreement. Provided, however, that if the Company were to breach this Agreement, this\nrelease would not bar an action by Executive against the Company to enforce its term(s) or any applicable law. In\naddition, this Section 11(a) shall not affect adversely any benefits to which Executive may be entitled arising out of any\nsocial security, workers' compensation or unemployment laws, or under the terms of any employee pension or welfare or\nbenefit plans or programs of the Company, which may be payable now or in the future to Executive.\n(b) Acknowledgements by Executive. Executive specifically acknowledges and agrees that: (i) Executive is\nwaiving claims under the foregoing laws, including specifically the ADEA and the OWBPA; (ii) this waiver of any rights or\nclaims is knowing and voluntary; (iii) this Agreement is written in a manner that Executive understands; (iv) the Company\nhas hereby advised Executive to consult with an attorney before executing this Agreement and that Executive has so\nconsulted; (v) the waiver of rights under Section 11(a) does not waive rights or claims arising after the date of this\nAgreement; (vi) Executive has been given a period of 21 days within which to consider this Agreement; (vii) for a period\nof seven days following Executive’s execution of this Agreement, Executive may revoke this Agreement and this\nAgreement will not become enforceable or effective until the revocation period expires; and (viii) the waiver of rights in\nSection 11(a) is in exchange for consideration in addition to anything of value to which Executive was already entitled to\nreceive.\n(c) Release by the Company. Subject to Section 10(b), the Company, on behalf of itself and its successors\nand assigns, covenants not to sue and hereby fully and forever releases, acquits and discharges Executive and his\nsuccessors and assigns, from any and all claims, demands, actions and causes of action of every kind, nature or\ndescription (collectively “claims”) that the Company may have had, may now have, or may hereafter have against\nExecutive, including without limitation any and all claims in any way related to or based upon Executive’s employment\nwith the Company, its subsidiaries and affiliates through the Effective Date and/or the cessation of Executive’s service as\nan executive officer or director of the Company, including without limitation any claims for breach of contract, implied\ncontract, promissory estoppel, tortious conduct or claims arising under any federal or state statute or law or local\nordinance, existing as of the date of this Agreement. Provided, however, that if Executive were to breach this Agreement,\nthis release would not bar an action by the Company against Executive to enforce its term(s) or any applicable laws. In\naddition, this Section 11(c) shall not bar any action by the Company against Executive to enforce the terms of the\nCompany’s Policy for Recovery of Incentive Compensation and/or Section 5(b) of the Executive Agreement.\n19\n(d) Unknown Claims. This Agreement covers both claims that Executive and/or the Company know about\nand those that Executive and/or the Company may not know about. The parties hereto expressly waive all rights afforded\nby any statute that limits the effect of a release with respect to unknown claims, except as to any claims that Executive\nmay have as contemplated by the last two sentences of Section 11(b) or that Company may have as contemplated by\nthe last two sentences of Section 11(c). Each of Executive and the Company understand the significance of its respective\nrelease of unknown claims and the waiver of statutory protection against a release of unknown claims. However, this\nrelease shall not apply to any claim based on the fraud or intentional misconduct of the other party or to any act that is\ndetermined to be a criminal act under any federal, state or local law committed or perpetrated by Executive or the\nCompany at any time prior to and through the Effective Date. Neither Executive nor the Company, based on the\nknowledge of Escalade’s Board of Directors and of the Company’s executive officers other than Executive, is currently\naware of any fraud or intentional misconduct of the other party to this Agreement.\n(e) Future Claims Related to Employee and/or Shareholder Status. Notwithstanding any provision of this\nSection 11 that may be construed to the contrary, Executive and the Company agree that neither Executive nor the\nCompany waive or release the other party hereto from any claim that may arise based on events occurring after the\nEffective Date. Executive and the Company further agree that Executive may not, based upon Executive’s status as a\nshareholder of the Company, assert any claim subsequent to the Effective Date against the Company or any Releasees\nrelating to any potential claim or matter that is the subject of or is otherwise covered by the release granted by Executive\nin this Agreement or is in any way related to the event of Executive’s retirement from or cessation of employment with the\nCompany.\n(f) Additional Release. If the Employment End Date is a date later than the Effective Date, and provided\nthat Executive has signed and delivered on or promptly after the Employment End Date an additional general release\nsubstantially identical in form and substance to the release set forth in this Section 11 (the “Additional Release”) relating\nto claims arising or that may arise from events on and after the Effective Date through the Employment End Date (the\n“Continuing Employment Period”), which Additional Release by its terms has become effective and is in material\ncompliance with the terms of this Agreement, the Company further releases Executive, his successors and assigns from\nany and all claims, demands, actions and causes of action of every kind, nature or description (collectively “claims”) that\nthe Company have had, may now have, or may hereafter have against Executive, including without limitation any and all\nclaims in any way related to or based upon Executive’s employment with the Company during the Continuing\nEmployment Period and/or the cessation of Executive’s service as an employee of the Company, including without\nlimitation any claims for breach of contract, implied contract, promissory estoppel, tortious conduct or claims arising\nunder federal or state statute or law or local ordinance, existing as of the date of this Agreement and the Company shall\nsign and deliver at such time a general release to such effect identical in form and substance to the release contained\nherein, provided, however, that if either party were to breach this Agreement, such further release would not bar an\naction by the non-breaching party against the breaching party to enforce its terms or any applicable laws nor would such\nrelease cover any action based on a claim excluded from the release by Section 11(d).\n20\n12. Future Service as Employee, Executive Officer or Director. Executive agrees that his termination as an\nemployee, executive officer and director of the Company is irrevocable, and that the Company shall have no obligation\nwhatsoever to rehire, reappoint or elect Executive to any such officer, director or other position with the Company.\nExecutive further agrees that if he would seek any such position and is not so hired, nominated, appointed or elected,\nExecutive will not bring a claim against the Company and/or any Releasee for refusal to so hire, nominate, appoint or\nelect.\n13. Binding Effect; Authority. This Agreement shall bind the Executive’s heirs, executors, administrators,\npersonal representatives, spouse, dependents, successors and assigns. Escalade represents and warrants to Executive\nthat the individual signing this Agreement on behalf of the Company is duly authorized to enter into this Agreement and to\nbind the Company hereunder.\n14. Non-Admission. This Agreement shall not be construed as an admission by either party of any wrongdoing\nor any violation of any federal, state or local law, regulation or ordinance, and the parties specifically disclaim any\nwrongdoing or violation.\n15. Assignability. Neither this Agreement, nor any right or interest hereunder, shall be assignable by\nExecutive, his beneficiaries or legal representatives, without the prior written consent of an executive officer of Escalade.\n16. Entire Agreement. This Agreement sets forth the entire agreement between the parties with respect to the\nsubject matter hereof and supersedes any other written or oral promises concerning the subject matter of this Agreement\nexcept as expressly stated otherwise herein or except as expressly stated otherwise in the Executive Agreement. The\nterms of this Agreement may not be modified other than in a writing signed by the parties.\n17. Governing Law. This Agreement shall in all respects be interpreted, enforced and governed by the laws of\nthe State of Indiana without giving effect to provisions thereof regarding conflict of laws.\n18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall\nconstitute an original and all of which shall together constitute one and the same instrument.\nIn Witness Whereof, the parties have entered into this Agreement as of this __ day of _______, 20__.\n_____ ______ ______ ______ ______\nDavid L. Fetherman\n21\nESCALADE, INCORPORATED\nBy:\n_____ ______ ______ ______ _\nName:\n_____ ______ ______ _____\nTitle:\n_____ ______ ______ ______\n22
+0859334b76224ff82c1312ae7b2b5da1.pdf	effective_date jurisdiction party term	EX-99.15 2 exhibit-ndaexecutionversion.htm\nEXECUTION VERSION\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nTHIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is made effective as of\nFebruary 18, 2013, by and between Central European Distribution Corporation, a Delaware corporation (“CEDC”) and\nW&L Enterprises Ltd. (the “Recipient”).\nWHEREAS, CEDC has issued (i) 3.00% Convertible Notes due 2013 (the “Convertible Notes”) and (ii) $380\nmillion 9.125% Senior Secured Notes due 2016 and €430 ($556.6 million) 8.875% Senior Secured Notes due 2016\n(collectively, the “2016 Notes” and together with the Convertible Notes, the “Notes”).\nWHEREAS, the Recipient holds 7,517,549 shares of CEDC’s outstanding common stock (the “Common\nStock”).\nWHEREAS the Recipient and CEDC wish to enter into discussions with respect to a potential restructuring of the\nNotes and Common Stock (a “Restructuring”).\nWHEREAS, CEDC, in such discussions, may disclose certain confidential information to the Recipient in order\nto initiate, facilitate, and/or progress such restructuring discussions (the “Purpose”).\nNOW THEREFORE, in consideration for receiving certain confidential information and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:\n1. Scope of Confidential Information.\n1.1 Subject to Section 1.2 below, “Confidential Information” means confidential, secret, proprietary or other non-public\ninformation pertaining to the business, operations, brands, marketing plans, financial matters, legal matters, products,\nprojects, business plans or practices, research and development, product development, intellectual property, financial\nmodels, trademarks, trade secrets, accounting and financing data, and methods of production, distribution or\nprocurement, suppliers, distributors, consultants, advisors or employees, directors or officers of CEDC or any of its\nSubsidiaries (defined below) (together, the “CEDC Group”) that is disclosed or otherwise made available, either orally or\nin writing, by any member of the CEDC Group to the Recipient or its affiliates, agents, or advisors (including, without\nlimitation, financial advisors, attorneys, banks and other sources of equity and debt financing and accountants)\n(collectively, “Representatives”).\n1.2 Notwithstanding anything herein to the contrary, Confidential Information shall not include any information that (a)\nis or becomes publicly available (other than through a breach of this Agreement by the Recipient), (b) is in the\npossession of or known to the Recipient or its Representatives prior to such information having been furnished to\nRecipient hereunder, (c) is independently conceived, developed or discovered by the Recipient or on its behalf, (d) is\nmade available to the Recipient or its Representatives by any person other than a member of the CEDC Group without\nany known breach of any obligation of confidentiality of such other person, or (e) is the subject of a written confirmation\nfrom CEDC or any of its Subsidiaries or any member of the CEDC Group stating that any such information is not\nConfidential Information. In clarification of the foregoing, a general disclosure in the public domain will not cause more\nspecific (but related) information to be excluded as Confidential Information under one of the above exceptions.\n1.3\n“Subsidiary” of any entity means any other entity in which such first entity owns or Controls, directly or\nindirectly, an amount of the voting securities, other voting interests or voting partnership interests sufficient to elect at\nleast a majority of such other entity’s board of directors or other governing body (or, if there are no such voting interests,\n50% or more of the equity interests of such other entity). For purposes of this Section 1.3, “Control” means the\npossession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an\nindividual, corporation, partnership, limited partnership or limited liability company, whether through the ownership of\nvoting securities, by contract or otherwise.\n2. Use and Disclosure of Confidential Information.\n2.1 The Recipient agrees that all Confidential Information will be held and maintained by it in the strictest confidence,\nwill be used by it solely and exclusively for the purpose of evaluating, negotiating and implementing a Restructuring,\nand will not, directly or indirectly, be used or disclosed by it for any other purpose whatsoever. CEDC acknowledges that\nRecipient is engaged in businesses similar to those conducted by CEDC and the CEDC Group or other industries in the\nordinary course of Recipient’s business. The Recipient will use reasonable care to maintain the confidentiality of\nConfidential Information, provided that such care shall be at least as great as the precautions taken by the Recipient to\nprotect its own confidential information of similar nature.\n2.2 The Recipient agrees that it will not, without the prior written consent of CEDC, directly or indirectly, disclose all or\nany portion of the Confidential Information, or the substance thereof, to any third party other than its Representatives in\nconnection with the Purpose, except, subject to Section 2.3 below, to the extent required by applicable law or legal\nprocess.\n2.3 The Recipient agrees that if the Recipient is required by any law, court or governmental order to disclose any\nConfidential Information, the Recipient will provide CEDC, to the extent practicable and legally permissible, with\nprompt written notice of such requirement so that CEDC or the applicable member of the CEDC Group may seek an\nappropriate protective order with respect thereto. If such an order is not obtained, only that portion of the Confidential\nInformation shall be furnished that is legally required to be furnished, at the sole expense of CEDC or one of its\nSubsidiaries, and the Recipient shall exercise commercial efforts to obtain reliable assurances that confidential treatment\nwill be accorded such Confidential Information. Notwithstanding the foregoing, notice to CEDC shall not be required\nwhere disclosure is made (i) in response to a request by a regulatory or self-regulatory authority, or (ii) in connection\nwith a routine audit or examination by a bank examiner or auditor, and such request, audit or examination does not\nreference CEDC or this Agreement.\n2.4 The Recipient shall ensure that each of its Representatives who are either provided with Confidential Information, or\notherwise have access to such Confidential Information, are informed of its confidential nature and are directed to abide\nby the terms of this Agreement applicable to Representatives or appropriate duties or obligations of confidentiality\nimposing confidentiality obligations on such Representatives (except that there shall be no requirement to so inform\nwhere the Representative to whom the information is to be disclosed is subject to professional obligations to maintain the\nconfidentiality of the Confidential Information or is otherwise bound by requirements of confidentiality in relation to the\nConfidential Information). The Recipient agrees to be liable for any breach of this Agreement by the Recipient or its\naffiliates or Representatives. The Recipient shall use reasonable efforts to provide written notice to CEDC of any use or\ndisclosure of Confidential Information in breach of this Agreement of which Recipient is aware, including without\nlimitation written details regarding the circumstances and the identity of the individuals or entities who as a result\nreceived or may have received access to such Confidential Information.\n-2-\n3. Certain Rights and Limitations.\n3.1 The parties hereto are independent of one another and this Agreement does not create any agency, partnership or\nsimilar relationship between the parties hereto. CEDC acknowledges that neither the Recipient nor any of its affiliates,\nnor its or their Representatives, will be deemed to have made any representation or warranty or commitment with respect\nto the Purpose except as may be set forth in one or more final, legally binding definitive agreements. Except as otherwise\nprovided by CEDC, the Recipient (i) acknowledges that neither CEDC nor any of its Representatives make any\nrepresentation or warranty hereunder, either express or implied, as to the truth, accuracy or completeness of any\nConfidential Information, provided, however, that CEDC, the CEDC Group and any of their Representatives shall use\ngood faith efforts to ensure that all Confidential Information furnished to Recipient hereunder is true, accurate and\ncomplete to the best of their knowledge, and (ii) agrees, to the fullest extent permitted by law that in the absence of fraud\nor willful misconduct on their part neither CEDC nor any of its Subsidiaries or Representatives shall have any liability to\nthe Recipient or its Representatives on any basis (including, without limitation, in contract, tort, under federal or state\nsecurities laws or otherwise) as a result of the review by the Recipient or its Representatives or the use of the\nConfidential Information by the Recipient or its Representatives in accordance with the provisions of this Agreement.\n3.2 The Recipient agrees that, upon written request by CEDC, all Confidential Information (and all copies, summaries\nand notes of the contents or parts thereof) and all Company property received by the Recipient shall, as soon as\nreasonably practicable, be either returned to CEDC or, to the extent technically practicable, destroyed (at the Recipient’s\nor its Representatives’ option), except that Recipient and its Representatives may retain copies of Confidential\nInformation as is required to comply with applicable law or regulation or professional standards or internal compliance\nrequirements. The Recipient’s obligations under Section 2 hereof shall survive the return of such tangible embodiments\nof Confidential Information until termination of this Agreement. Notwithstanding anything to the contrary in this\nAgreement, neither Recipient nor any of its Representatives shall be required to delete electronically stored Confidential\nInformation to the extent such deletion would be technologically impracticable or inconsistent with the archival records\nretention policy of the Recipient or its Representatives.\n3.3 The Recipient shall not remove, obscure, overprint, deface or destroy any notice of confidentiality, copyright,\ntrademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of Confidential\nInformation the Recipient obtains from the CEDC Group.\n-3-\n3.4 CEDC understands and acknowledges that the Recipient and an affiliate of the Recipient are currently reporting\npersons with respect to CEDC’s common stock on a Schedule 13D under the provisions of §§ 240.13d-1(a) and 13d-2(a)\nof the United States Securities Exchange Act of 1934, among others, and that accordingly the Recipient and its affiliate\nwill have ongoing disclosure obligations thereunder, which shall not be restricted or limited by this Agreement, including\nthat this Agreement shall be disclosed and publicly filed as an amendment to such Schedule 13D.\n4. Remedies. The Recipient acknowledges that a breach of any of the terms of this Agreement may cause irreparable\nharm to CEDC for which CEDC may not be adequately compensated by money damages. Accordingly, the Recipient\nagrees that, in addition to all other remedies available to CEDC, including any member of the CEDC Group, in an action\nat law, in the event of any breach or threatened breach by the Recipient of the terms of this Agreement, CEDC shall,\nwithout the necessity of proving actual damages or posting any bond or other security, be entitled to seek temporary and\npermanent injunctive relief, including, but not limited to, specific performance of the terms of this Agreement. Each\nparty's rights and obligations under this Agreement are cumulative and are in addition to and not in limitation of such\nparty's rights and obligations under law, equity or any other written agreement.\n5. Miscellaneous.\n5.1 This Agreement shall be governed by and construed and take effect as an enforceable contract in accordance with\nthe laws of the State of New York governing such agreements, without regard to conflicts-of-law principles thereof that\nwould require applicability of any other law. The parties hereto agree that any dispute between them relating to this\nAgreement will be resolved solely in the manner set forth in clause (i) below:\n(i) Each of the parties hereto irrevocably submits to the jurisdiction of the United States District Court located in\nthe State of New York and in the Borough of Manhattan, and all appellate courts relating thereto, for the purpose\nof any suit, action, proceeding or judgment relating to or arising out of this Agreement. Service of process in\nconnection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by\nthe same methods as are specified for the giving of notices under this Agreement. Each party hereto irrevocably\nwaives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and\nirrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought\nin an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A\nTRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS\nTHAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.\n5.2 Any notices or other correspondence (hereinafter collectively referred to as “correspondence”) required or permitted\nto be given hereunder shall be in writing and shall be sent by postage prepaid first class mail, courier or facsimile or\ndelivered by hand to the party to whom such correspondence is required or permitted to be given hereunder, and shall be\ndeemed sufficient upon receipt when delivered personally or by courier, overnight delivery service or confirmed\nfacsimile, or three (3) Business Days after being deposited in the regular mail as certified or registered mail (airmail if\nsent internationally) with postage prepaid, if such notice is addressed to the party to be notified at such party’s address or\nfacsimile number as set forth below:\n-4-\n(a) All correspondence to the CEDC Group shall be addressed as follows:\nCentral European Distribution Corporation\nBobrowiecka 6\n00-728 Warsaw\nPoland\nAttention: Grant Winterton\nFacsimile: +48 22 456 60 01\nwith a copy to\nSkadden, Arps, Slate, Meagher & Flom (UK) LLP\n40 Bank St., Canary Wharf\nLondon E14 5DS\nUK\nAttention: Scott Simpson, Esq.\nFacsimile: +44 20 7519 7070\n(b) All correspondence to the Recipient shall be addressed as follows:\nW&L Enterprises Ltd.\nCraigmuir Chambers,\nP.O. Box 71,\nRoad Town,\nTortola,\nBritish Virgin Islands\nAttention: Mark Kaufman\nFacsimile: +7-495-232-6138\nwith copies to\nDarrois Villey Maillot Brochier A.A.R .P.I .\n69, avenue Victor Hugo\nParis 75783\nFrance\nAttention: Ben Burman, Esq.\nFacsimile: + 33 1 45 02 49 59\nand\nWachtell, Lipton Rosen & Katz\n51 West 52nd Street\nNew York, New York 10019\nAttention: Adam Emmerich, Esq.\nFacsimile: (212) 403-2234\n-5-\n(c) Either party may change the address to which correspondence to it is to be addressed by written notification\nas provided for herein.\n5.3 This Agreement contains the complete and exclusive agreement of the parties with respect to the subject matter\nhereof and supersedes all prior and contemporaneous agreements and understandings whether written or oral, express or\nimplied. This Agreement shall be binding upon and inure to the benefit of the parties, and their respective successors\nand permitted assigns, including without limitation the heirs, executors and legal representatives of each such party. The\nRecipient acknowledges and agrees that all members of the CEDC Group are third party beneficiaries of this\nAgreement. Except where expressly indicated otherwise, the words “written” or “in writing” shall include, but not be\nlimited to, written or printed documents, electronic and facsimile transmissions and computer disks or tapes (whether\nmachine or user readable). If any provision of this Agreement is held invalid, illegal or unenforceable by a court of\ncompetent jurisdiction, such shall not affect any other provision of this Agreement, which shall remain in full force and\neffect to the fullest extent permitted by applicable law. Upon such determination of invalidity or unenforceability, the\nparties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as\npossible in a reasonably acceptable manner in order that the transactions contemplated hereby may be consummated as\noriginally contemplated to the fullest extent possible. No amendment, modification or alteration of the terms of this\nAgreement shall be effective unless made in writing and executed by both parties hereto. A failure or delay in exercising\nany right in respect to this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any\nright will not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right.\nAny such waiver shall be effective only in the specific instance and for the purpose given. This Agreement may be\nsigned in one or more counterparts, each of which shall be deemed to be an original for all purposes.\n6. Securities Laws. The Recipient acknowledges that it is aware (and, if applicable, that its Representatives who are\napprised of this matter have been advised) that the United States securities laws prohibit any person who has material\nnon-public information about a company from purchasing or selling securities of such company, or from communicating\nsuch information to any other person under circumstances in which it is reasonably foreseeable that such person is likely\nto purchase or sell such securities. The Recipient agrees that, to the extent that it has actually received Confidential\nInformation pursuant to this Agreement that constitutes material non-public information, it will not trade any securities\nof CEDC or any of its Subsidiaries prior to the termination of this Agreement and that it will not use any Confidential\nInformation in contravention of the United States securities laws.\n7. Termination.\n7.1 The provisions of this Agreement shall continue in full force and effect at all times until the earliest to occur of (i)\nthe filing of an exchange offer, offering memorandum or disclosure statement with respect to the 2016 Notes or\nConvertible Notes, provided that, to the extent CEDC and the Recipient continue discussions on the terms of a\nRestructuring following such filing, this period shall extend until the filing of an amended exchange offer, offering\nmemorandum or disclosure statement reflecting such discussions or (ii) 9:00 a.m . (GMT) on March 5, 2013, whereupon\nthis Agreement shall terminate and be of no further force or effect (the “Termination Date”), other than with respect to\nthe rights and obligations of CEDC and Recipient per Section 7.2 hereof.\n-6-\n7.2 On the Termination Date, CEDC shall publicly file a document (the “Cleansing Document”) containing all of the\nwritten and oral Confidential Information that constitutes material non-public information and that was provided by\nCEDC or its advisors to any of (a) the Recipient or its Representatives or (b) any holder of securities who is subject to a\nconfidentiality agreement substantially similar to this Agreement (or to such holder ’s Representatives) that was\nsubsequently shared with the Recipient or its Representatives; provided that such Confidential Information shall not\ninclude any information only disclosed to the Recipients' advisors and specifically designated as ‘Non-Cleansing\nInformation’ by CEDC at the time of such disclosure (such Confidential Information other than the ‘Non-Cleansing\nInformation’ being the “Disclosure Information”). As promptly as practicable, CEDC will provide the Recipient with a\ndraft of the Cleansing Document. The Cleansing Document shall be the offering memorandum and/or disclosure\nstatement and/or Form 8-K or any periodic report required or permitted to be filed under the Exchange Act with the\nSecurities Exchange Commission (the “SEC”) or, if the SEC’s EDGAR filing system is not available, in such other\nmanner that CEDC reasonably determines results in public dissemination of such information. If CEDC does not file the\nCleansing Document on the Termination Date as required in accordance with this Section 7.2, then Recipient and/or its\nRepresentatives shall be entitled to disclose the Confidential Information that was provided by CEDC or any of its\nSubsidiaries hereunder without liability to the extent that Recipient or its Representatives reasonably believes that the\ninformation constitutes material non-public information that is required to allow it to freely trade, through the issuance of\na press release or similar form of public communication, without any liability or breach under this Agreement (such an\nannouncement, the “Recipient’s Cleansing Announcement”). For the avoidance of doubt, if the Cleansing Document\nfiled by CEDC pursuant hereto is not in sufficient detail to ensure that, in the reasonable opinion of each of the\nRecipients or their Representatives, the Recipients and their Representatives will be cleansed of any Confidential\nInformation hereunder such that, following the filing of the Cleansing Document by CEDC, no Recipient shall be\nrestricted, prevented or prohibited from trading any securities under applicable insider dealing or market abuse laws or\nregulations in any jurisdiction or pursuant to any other applicable laws or regulations, then the Recipients may make a\nRecipient’s Cleansing Announcement in the manner set forth above in this Section 7.2.\n[Signatures on the Following Page ]\n-7-\nIN WITNESS WHEREOF, this Agreement is executed by the undersigned parties. The parties hereto further certify that\nthe persons signing this Agreement are duly authorized to do so.\nCENTRAL EUROPEAN DISTRIBUTION\nCORPORATION\nBy: /s/ Grant Winterton\nPrint Name: Grant Winterton\nTitle: Chief Executive Officer\nW&L ENTERPRISES LTD.\nBy: /s/ Mark Kaufman\nPrint Name: Mark Kaufman\nTitle: Director\n-8-	EX-99.15 2 exhibit-ndaexecutionversion.htm\nEXECUTION VERSION\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nTHIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is made effective as of\nFebruary 18, 2013, by and between Central European Distribution Corporation, a Delaware corporation (“CEDC”) and\nW&L Enterprises Ltd. (the “Recipient”).\n \nWHEREAS, CEDC has issued (i) 3.00% Convertible Notes due 2013 (the “Convertible Notes”) and (ii) $380\nmillion 9.125% Senior Secured Notes due 2016 and €430 ($556.6 million) 8.875% Senior Secured Notes due 2016\n(collectively, the “2016 Notes” and together with the Convertible Notes, the “Notes”).\nWHEREAS, the Recipient holds 7,517,549 shares of CEDC’s outstanding common stock (the “Common\nStock™).\nWHEREAS the Recipient and CEDC wish to enter into discussions with respect to a potential restructuring of the\nNotes and Common Stock (a “Restructuring™).\nWHEREAS, CEDC, in such discussions, may disclose certain confidential information to the Recipient in order\nto initiate, facilitate, and/or progress such restructuring discussions (the “Purpose”).\nNOW THEREFORE, in consideration for receiving certain confidential information and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:\n1. Scope of Confidential Information.\n1.1 Subject to Section 1.2 below, “Confidential Information” means confidential, secret, proprietary or other non-public\ninformation pertaining to the business, operations, brands, marketing plans, financial matters, legal matters, products,\nprojects, business plans or practices, research and development, product development, intellectual property, financial\nmodels, trademarks, trade secrets, accounting and financing data, and methods of production, distribution or\nprocurement, suppliers, distributors, consultants, advisors or employees, directors or officers of CEDC or any of its\nSubsidiaries (defined below) (together, the “CEDC Group”) that is disclosed or otherwise made available, either orally or\nin writing, by any member of the CEDC Group to the Recipient or its affiliates, agents, or advisors (including, without\nlimitation, financial advisors, attorneys, banks and other sources of equity and debt financing and accountants)\n(collectively, “Representatives™).\n1.2 Notwithstanding anything herein to the contrary, Confidential Information shall not include any information that (a)\nis or becomes publicly available (other than through a breach of this Agreement by the Recipient), (b) is in the\npossession of or known to the Recipient or its Representatives prior to such information having been furnished to\nRecipient hereunder, (c) is independently conceived, developed or discovered by the Recipient or on its behalf, (d) is\nmade available to the Recipient or its Representatives by any person other than a member of the CEDC Group without\nany known breach of any obligation of confidentiality of such other person, or (e) is the subject of a written confirmation\nfrom CEDC or any of its Subsidiaries or any member of the CEDC Group stating that any such information is not\nConfidential Information. In clarification of the foregoing, a general disclosure in the public domain will not cause more\nspecific (but related) information to be excluded as Confidential Information under one of the above exceptions.\n1.3 “Subsidiary” of any entity means any other entity in which such first entity owns or Controls, directly or\nindirectly, an amount of the voting securities, other voting interests or voting partnership interests sufficient to elect at\nleast a majority of such other entity’s board of directors or other governing body (or, if there are no such voting interests,\n50% or more of the equity interests of such other entity). For purposes of this Section 1.3, “Control” means the\npossession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an\nindividual, corporation, partnership, limited partnership or limited liability company, whether through the ownership of\nvoting securities, by contract or otherwise.\n2. Use and Disclosure of Confidential Information.\n2.1 The Recipient agrees that all Confidential Information will be held and maintained by it in the strictest confidence,\nwill be used by it solely and exclusively for the purpose of evaluating, negotiating and implementing a Restructuring,\nand will not, directly or indirectly, be used or disclosed by it for any other purpose whatsoever. CEDC acknowledges that\nRecipient is engaged in businesses similar to those conducted by CEDC and the CEDC Group or other industries in the\nordinary course of Recipient’s business. The Recipient will use reasonable care to maintain the confidentiality of\nConfidential Information, provided that such care shall be at least as great as the precautions taken by the Recipient to\nprotect its own confidential information of similar nature.\n2.2 The Recipient agrees that it will not, without the prior written consent of CEDC, directly or indirectly, disclose all or\nany portion of the Confidential Information, or the substance thereof, to any third party other than its Representatives in\nconnection with the Purpose, except, subject to Section 2.3 below, to the extent required by applicable law or legal\nprocess.\n2.3 The Recipient agrees that if the Recipient is required by any law, court or governmental order to disclose any\nConfidential Information, the Recipient will provide CEDC, to the extent practicable and legally permissible, with\nprompt written notice of such requirement so that CEDC or the applicable member of the CEDC Group may seek an\nappropriate protective order with respect thereto. If such an order is not obtained, only that portion of the Confidential\nInformation shall be furnished that is legally required to be furnished, at the sole expense of CEDC or one of its\nSubsidiaries, and the Recipient shall exercise commercial efforts to obtain reliable assurances that confidential treatment\nwill be accorded such Confidential Information. Notwithstanding the foregoing, notice to CEDC shall not be required\nwhere disclosure is made (i) in response to a request by a regulatory or self-regulatory authority, or (ii) in connection\nwith a routine audit or examination by a bank examiner or auditor, and such request, audit or examination does not\nreference CEDC or this Agreement.\n2.4 The Recipient shall ensure that each of its Representatives who are either provided with Confidential Information, or\notherwise have access to such Confidential Information, are informed of its confidential nature and are directed to abide\nby the terms of this Agreement applicable to Representatives or appropriate duties or obligations of confidentiality\nimposing confidentiality obligations on such Representatives (except that there shall be no requirement to so inform\nwhere the Representative to whom the information is to be disclosed is subject to professional obligations to maintain the\nconfidentiality of the Confidential Information or is otherwise bound by requirements of confidentiality in relation to the\nConfidential Information). The Recipient agrees to be liable for any breach of this Agreement by the Recipient or its\naffiliates or Representatives. The Recipient shall use reasonable efforts to provide written notice to CEDC of any use or\ndisclosure of Confidential Information in breach of this Agreement of which Recipient is aware, including without\nlimitation written details regarding the circumstances and the identity of the individuals or entities who as a result\nreceived or may have received access to such Confidential Information.\n-\n3. Certain Rights and Limitations.\n3.1 The parties hereto are independent of one another and this Agreement does not create any agency, partnership or\nsimilar relationship between the parties hereto. CEDC acknowledges that neither the Recipient nor any of its affiliates,\nnor its or their Representatives, will be deemed to have made any representation or warranty or commitment with respect\nto the Purpose except as may be set forth in one or more final, legally binding definitive agreements. Except as otherwise\nprovided by CEDC, the Recipient (i) acknowledges that neither CEDC nor any of its Representatives make any\nrepresentation or warranty hereunder, either express or implied, as to the truth, accuracy or completeness of any\nConfidential Information, provided, however, that CEDC, the CEDC Group and any of their Representatives shall use\ngood faith efforts to ensure that all Confidential Information furnished to Recipient hereunder is true, accurate and\ncomplete to the best of their knowledge, and (ii) agrees, to the fullest extent permitted by law that in the absence of fraud\nor willful misconduct on their part neither CEDC nor any of its Subsidiaries or Representatives shall have any liability to\nthe Recipient or its Representatives on any basis (including, without limitation, in contract, tort, under federal or state\nsecurities laws or otherwise) as a result of the review by the Recipient or its Representatives or the use of the\nConfidential Information by the Recipient or its Representatives in accordance with the provisions of this Agreement.\n3.2 The Recipient agrees that, upon written request by CEDC, all Confidential Information (and all copies, summaries\nand notes of the contents or parts thereof) and all Company property received by the Recipient shall, as soon as\nreasonably practicable, be either returned to CEDC or, to the extent technically practicable, destroyed (at the Recipient’s\nor its Representatives’ option), except that Recipient and its Representatives may retain copies of Confidential\nInformation as is required to comply with applicable law or regulation or professional standards or internal compliance\nrequirements. The Recipient’s obligations under Section 2 hereof shall survive the return of such tangible embodiments\nof Confidential Information until termination of this Agreement. Notwithstanding anything to the contrary in this\nAgreement, neither Recipient nor any of its Representatives shall be required to delete electronically stored Confidential\nInformation to the extent such deletion would be technologically impracticable or inconsistent with the archival records\nretention policy of the Recipient or its Representatives.\n3.3 The Recipient shall not remove, obscure, overprint, deface or destroy any notice of confidentiality, copyright,\ntrademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of Confidential\nInformation the Recipient obtains from the CEDC Group.\n-3-\n3.4 CEDC understands and acknowledges that the Recipient and an affiliate of the Recipient are currently reporting\npersons with respect to CEDC’s common stock on a Schedule 13D under the provisions of §§ 240.13d-1(a) and 13d-2(a)\nof the United States Securities Exchange Act of 1934, among others, and that accordingly the Recipient and its affiliate\nwill have ongoing disclosure obligations thereunder, which shall not be restricted or limited by this Agreement, including\nthat this Agreement shall be disclosed and publicly filed as an amendment to such Schedule 13D.\n4. Remedies. The Recipient acknowledges that a breach of any of the terms of this Agreement may cause irreparable\nharm to CEDC for which CEDC may not be adequately compensated by money damages. Accordingly, the Recipient\nagrees that, in addition to all other remedies available to CEDC, including any member of the CEDC Group, in an action\nat law, in the event of any breach or threatened breach by the Recipient of the terms of this Agreement, CEDC shall,\nwithout the necessity of proving actual damages or posting any bond or other security, be entitled to seek temporary and\npermanent injunctive relief, including, but not limited to, specific performance of the terms of this Agreement. Each\nparty's rights and obligations under this Agreement are cumulative and are in addition to and not in limitation of such\nparty's rights and obligations under law, equity or any other written agreement.\n5. Miscellaneous.\n5.1 This Agreement shall be governed by and construed and take effect as an enforceable contract in accordance with\nthe laws of the State of New York governing such agreements, without regard to conflicts-of-law principles thereof that\nwould require applicability of any other law. The parties hereto agree that any dispute between them relating to this\nAgreement will be resolved solely in the manner set forth in clause (i) below:\n(i) Each of the parties hereto irrevocably submits to the jurisdiction of the United States District Court located in\nthe State of New York and in the Borough of Manhattan, and all appellate courts relating thereto, for the purpose\nof any suit, action, proceeding or judgment relating to or arising out of this Agreement. Service of process in\nconnection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by\nthe same methods as are specified for the giving of notices under this Agreement. Each party hereto irrevocably\nwaives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and\nirrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought\nin an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A\nTRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS\nTHAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.\n5.2 Any notices or other correspondence (hereinafter collectively referred to as “correspondence”) required or permitted\nto be given hereunder shall be in writing and shall be sent by postage prepaid first class mail, courier or facsimile or\ndelivered by hand to the party to whom such correspondence is required or permitted to be given hereunder, and shall be\ndeemed sufficient upon receipt when delivered personally or by courier, overnight delivery service or confirmed\nfacsimile, or three (3) Business Days after being deposited in the regular mail as certified or registered mail (airmail if\nsent internationally) with postage prepaid, if such notice is addressed to the party to be notified at such party’s address or\nfacsimile number as set forth below:\n4-\n(a) All correspondence to the CEDC Group shall be addressed as follows:\nCentral European Distribution Corporation\nBobrowiecka 6\n00-728 Warsaw\nPoland\nAttention: Grant Winterton\nFacsimile: +48 22 456 60 01\nwith a copy to\nSkadden, Arps, Slate, Meagher & Flom (UK) LLP\n40 Bank St., Canary Wharf\nLondon E14 5DS\nUK\nAttention: Scott Simpson, Esq.\nFacsimile: +44 20 7519 7070\n(b) All correspondence to the Recipient shall be addressed as follows:\nW&L Enterprises Ltd.\nCraigmuir Chambers,\nP.O. Box 71,\nRoad Town,\nTortola,\nBritish Virgin Islands\nAttention: Mark Kaufman\nFacsimile: +7-495-232-6138\nwith copies to\nDarrois Villey Maillot Brochier A.A.R.P.I.\n69, avenue Victor Hugo\nParis 75783\nFrance\nAttention: Ben Burman, Esq.\nFacsimile: + 33145024959\nand\nWachtell, Lipton Rosen & Katz\n51 West 52nd Street\nNew York, New York 10019\nAttention: Adam Emmerich, Esq.\nFacsimile: (212) 403-2234\n(c) Either party may change the address to which correspondence to it is to be addressed by written notification\nas provided for herein.\n5.3 This Agreement contains the complete and exclusive agreement of the parties with respect to the subject matter\nhereof and supersedes all prior and contemporaneous agreements and understandings whether written or oral, express or\nimplied. This Agreement shall be binding upon and inure to the benefit of the parties, and their respective successors\nand permitted assigns, including without limitation the heirs, executors and legal representatives of each such party. The\nRecipient acknowledges and agrees that all members of the CEDC Group are third party beneficiaries of this\nAgreement. Except where expressly indicated otherwise, the words “written” or “in writing” shall include, but not be\nlimited to, written or printed documents, electronic and facsimile transmissions and computer disks or tapes (whether\nmachine or user readable). If any provision of this Agreement is held invalid, illegal or unenforceable by a court of\ncompetent jurisdiction, such shall not affect any other provision of this Agreement, which shall remain in full force and\neffect to the fullest extent permitted by applicable law. Upon such determination of invalidity or unenforceability, the\nparties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as\npossible in a reasonably acceptable manner in order that the transactions contemplated hereby may be consummated as\noriginally contemplated to the fullest extent possible. No amendment, modification or alteration of the terms of this\nAgreement shall be effective unless made in writing and executed by both parties hereto. A failure or delay in exercising\nany right in respect to this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any\nright will not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right.\nAny such waiver shall be effective only in the specific instance and for the purpose given. This Agreement may be\nsigned in one or more counterparts, each of which shall be deemed to be an original for all purposes.\n6. Securities Laws. The Recipient acknowledges that it is aware (and, if applicable, that its Representatives who are\napprised of this matter have been advised) that the United States securities laws prohibit any person who has material\nnon-public information about a company from purchasing or selling securities of such company, or from communicating\nsuch information to any other person under circumstances in which it is reasonably foreseeable that such person is likely\nto purchase or sell such securities. The Recipient agrees that, to the extent that it has actually received Confidential\nInformation pursuant to this Agreement that constitutes material non-public information, it will not trade any securities\nof CEDC or any of its Subsidiaries prior to the termination of this Agreement and that it will not use any Confidential\nInformation in contravention of the United States securities laws.\n7. Termination.\n7.1 The provisions of this Agreement shall continue in full force and effect at all times until the earliest to occur of (i)\nthe filing of an exchange offer, offering memorandum or disclosure statement with respect to the 2016 Notes or\nConvertible Notes, provided that, to the extent CEDC and the Recipient continue discussions on the terms of a\nRestructuring following such filing, this period shall extend until the filing of an amended exchange offer, offering\nmemorandum or disclosure statement reflecting such discussions or (ii) 9:00 a.m. (GMT) on March 5, 2013, whereupon\nthis Agreement shall terminate and be of no further force or effect (the “Termination Date”), other than with respect to\nthe rights and obligations of CEDC and Recipient per Section 7.2 hereof.\n-6-\n7.2 On the Termination Date, CEDC shall publicly file a document (the “Cleansing Document”) containing all of the\nwritten and oral Confidential Information that constitutes material non-public information and that was provided by\nCEDC or its advisors to any of (a) the Recipient or its Representatives or (b) any holder of securities who is subject to a\nconfidentiality agreement substantially similar to this Agreement (or to such holder’s Representatives) that was\nsubsequently shared with the Recipient or its Representatives; provided that such Confidential Information shall not\ninclude any information only disclosed to the Recipients' advisors and specifically designated as ‘Non-Cleansing\nInformation’ by CEDC at the time of such disclosure (such Confidential Information other than the ‘Non-Cleansing\nInformation’ being the “Disclosure Information”). As promptly as practicable, CEDC will provide the Recipient with a\ndraft of the Cleansing Document. The Cleansing Document shall be the offering memorandum and/or disclosure\nstatement and/or Form 8-K or any periodic report required or permitted to be filed under the Exchange Act with the\nSecurities Exchange Commission (the “SEC”) or, if the SEC’s EDGAR filing system is not available, in such other\nmanner that CEDC reasonably determines results in public dissemination of such information. If CEDC does not file the\nCleansing Document on the Termination Date as required in accordance with this Section 7.2, then Recipient and/or its\nRepresentatives shall be entitled to disclose the Confidential Information that was provided by CEDC or any of its\nSubsidiaries hereunder without liability to the extent that Recipient or its Representatives reasonably believes that the\ninformation constitutes material non-public information that is required to allow it to freely trade, through the issuance of\na press release or similar form of public communication, without any liability or breach under this Agreement (such an\nannouncement, the “Recipient’s Cleansing Announcement”). For the avoidance of doubt, if the Cleansing Document\nfiled by CEDC pursuant hereto is not in sufficient detail to ensure that, in the reasonable opinion of each of the\nRecipients or their Representatives, the Recipients and their Representatives will be cleansed of any Confidential\nInformation hereunder such that, following the filing of the Cleansing Document by CEDC, no Recipient shall be\nrestricted, prevented or prohibited from trading any securities under applicable insider dealing or market abuse laws or\nregulations in any jurisdiction or pursuant to any other applicable laws or regulations, then the Recipients may make a\nRecipient’s Cleansing Announcement in the manner set forth above in this Section 7.2.\n[Signatures on the Following Page ]\n_7-\nIN WITNESS WHEREOF, this Agreement is executed by the undersigned parties. The parties hereto further certify that the persons signing this Agreement are duly authorized to do so. CENTRAL EUROPEAN DISTRIBUTION\nCORPORATION\nBy: /s/ Grant Winterton\nPrint Name: Grant Winterton\nTitle: Chief Executive Officer\nW&L ENTERPRISES LTD.\nBy: /s/ Mark Kaufman\nPrint Name: Mark Kaufman\nTitle: Director	EX-99.15 2 exhibit-ndaexecutionversion.htm\nEXECUTION VERSION\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nTHIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (this "Agreement") is made effective as of\nFebruary 18, 2013, by and between Central European Distribution Corporation, a Delaware corporation ("CEDC") and\nW&L Enterprises Ltd. (the "Recipient").\nWHEREAS, CEDC has issued (i) 3.00% Convertible Notes due 2013 (the "Convertible Notes") and (ii) $380\nmillion 9.125% Senior Secured Notes due 2016 and E430 ($556.6 million) 8.875% Senior Secured Notes due 2016\n(collectively, the "2016 Notes" and together with the Convertible Notes, the "Notes").\nWHEREAS, the Recipient holds 7,517,549 shares of CEDC's outstanding common stock (the "Common\nStock").\nWHEREAS the Recipient and CEDC wish to enter into discussions with respect to a potential restructuring of the\nNotes and Common Stock (a "Restructuring").\nWHEREAS, CEDC, in such discussions, may disclose certain confidential information to the Recipient in order\nto initiate, facilitate, and/or progress such restructuring discussions (the "Purpose").\nNOW THEREFORE, in consideration for receiving certain confidential information and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:\n1. Scope of Confidential Information.\n1.1 Subject to Section 1.2 below, "Confidential Information" means confidential, secret, proprietary or other non-public\ninformation pertaining to the business, operations, brands, marketing plans, financial matters, legal matters, products,\nprojects, business plans or practices, research and development, product development, intellectual property, financial\nmodels, trademarks, trade secrets, accounting and financing data, and methods of production, distribution or\nprocurement,\nsuppliers,\ndistributors,\nconsultants,\nadvisors\nor\nemployees,\ndirectors\nor\nofficers\nof\nCEDC\nor\nany\nof\nits\nSubsidiaries (defined below) (together, the "CEDC Group") that is disclosed or otherwise made available, either orally or\nin writing, by any member of the CEDC Group to the Recipient or its affiliates, agents, or advisors (including, without\nlimitation, financial advisors, attorneys, banks and other sources of equity and debt financing and accountants)\n(collectively, "Representatives").\n1.2 Notwithstanding anything herein to the contrary, Confidential Information shall not include any information that (a)\nis or becomes publicly available (other than through a breach of this Agreement by the Recipient), (b) is in the\npossession of or known to the Recipient or its Representatives prior to such information having been furnished\nto\nRecipient hereunder, (c) is independently conceived, developed or discovered by the Recipient or on its behalf, (d) is\nmade available to the Recipient or its Representatives by any person other than a member of the CEDC Group without\nany known breach of any obligation of confidentiality of such other person, or (e) is the subject of a written confirmation\nfrom CEDC or any of its Subsidiaries or any member of the CEDC Group stating that any such information is not\nConfidential Information. In clarification of the foregoing, a general disclosure in the public domain will not cause more\nspecific (but related) information to be excluded as Confidential Information under one of the above exceptions.\n1.3\n"Subsidiary." of any entity means any other entity in which such first entity owns or Controls, directly or\nindirectly, an amount of the voting securities, other voting interests or voting partnership interests sufficient to elect at\nleast a majority of such other entity's board of directors or other governing body (or, if there are no such voting interests,\n50% or more of the equity interests of such other entity). For purposes of this Section 1.3, "Control" means the\npossession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an\nindividual, corporation, partnership, limited partnership or limited liability company, whether through the ownership of\nvoting securities, by contract or otherwise.\n2. Use and Disclosure of Confidential Information.\n2.1 The Recipient agrees that all Confidential Information will be held and maintained by it in the strictest confidence,\nwill be used by it solely and exclusively for the purpose of evaluating, negotiating and implementing a Restructuring,\nand\nwill not, directly or indirectly, be used or disclosed by it for any other purpose whatsoever. CEDC\nacknowledges\nthat\nRecipient is engaged in businesses similar to those conducted by CEDC and the CEDC Group or other industries in the\nordinary course of Recipient's business. The Recipient will use reasonable care to maintain the confidentiality of\nConfidential Information, provided that such care shall be at least as great as the precautions taken by the Recipient to\nprotect its own confidential information of similar nature.\n2.2 The Recipient agrees that it will not, without the prior written consent of CEDC, directly or indirectly, disclose all or\nany portion of the Confidential Information, or the substance thereof, to any third party other than its Representatives in\nconnection with the Purpose, except, subject to Section 2.3 below, to the extent required by applicable law or legal\nprocess.\n2.3 The Recipient agrees that if the Recipient is required by any law, court or governmental order to disclose any\nConfidential Information, the Recipient will provide CEDC, to the extent practicable and legally permissible, with\nprompt written notice of such requirement so that CEDC or the applicable member of the CEDC Group may seek an\nappropriate protective order with respect thereto. If such an order is not obtained, only that portion of the Confidential\nInformation shall be furnished that is legally required to be furnished, at the sole expense of CEDC or one of its\nSubsidiaries, and the Recipient shall exercise commercial efforts to obtain reliable assurances that confidential treatment\nwill be accorded such Confidential Information. Notwithstanding the foregoing, notice to CEDC shall not be required\nwhere\ndisclosure\nis\nmade\n(i)\nin\nresponse\nto\na\nrequest\nby\na\nregulatory\nor\nself-regulatory\nauthority,\nor\n(ii)\nin\nconnection\nwith a routine audit or examination by a bank examiner or auditor, and such request, audit or examination does not\nreference CEDC or this Agreement.\n2.4 The Recipient shall ensure that each of its Representatives who are either provided with Confidential Information, or\notherwise have access to such Confidential Information, are informed of its confidential nature and are directed to abide\nby the terms of this Agreement applicable to Representatives or appropriate duties or obligations of confidentiality\nimposing confidentiality obligations on such Representatives (except that there shall be no requirement to so inform\nwhere the Representative to whom the information is to be disclosed is subject to professional obligations to maintain the\nconfidentiality of the Confidential Information or is otherwise bound by requirements of confidentiality in relation to the\nConfidential Information). The Recipient agrees to be liable for any breach of this Agreement by the Recipient or its\naffiliates or Representatives. The Recipient shall use reasonable efforts to provide written notice to CEDC of any use or\ndisclosure of Confidential Information in breach of this Agreement of which Recipient is aware, including without\nlimitation written details regarding the circumstances and the identity of the individuals or entities who as a result\nreceived or may have received access to such Confidential Information.\n-2-\n3. Certain Rights and Limitations.\n3.1 The parties hereto are independent of one another and this Agreement does not create any agency, partnership or\nsimilar relationship between the parties hereto. CEDC acknowledges that neither the Recipient nor any of its affiliates,\nnor its or their Representatives, will be deemed to have made any representation or warranty or commitment with respect\nto the Purpose except as may be set forth in one or more final, legally binding definitive agreements. Except as otherwise\nprovided by CEDC, the Recipient (i) acknowledges that neither CEDC nor any of its Representatives make any\nrepresentation or warranty hereunder, either express or implied, as to the truth, accuracy or completeness of any\nConfidential Information, provided, however, that CEDC, the CEDC Group and any of their Representatives shall\nuse\ngood faith efforts to ensure that all Confidential Information furnished to Recipient hereunder is true, accurate and\ncomplete to the best of their knowledge, and (ii) agrees, to the fullest extent permitted by law that in the absence of fraud\nor willful misconduct on their part neither CEDC nor any of its Subsidiaries or Representatives shall have any liability to\nthe\nRecipient\nor\nits\nRepresentatives\non\nany\nbasis\n(including,\nwithout\nlimitation,\nin\ncontract,\ntort,\nunder\nfederal\nor\nstate\nsecurities laws or otherwise) as a result of the review by the Recipient or its Representatives or the use of the\nConfidential Information by the Recipient or its Representatives in accordance with the provisions of this Agreement.\n3.2 The Recipient agrees that, upon written request by CEDC, all Confidential Information (and all copies, summaries\nand\nnotes\nof\nthe\ncontents\nor\nparts\nthereof)\nand\nall\nCompany\nproperty\nreceived\nby\nthe\nRecipient\nshall,\nas\nsoon\nas\nreasonably practicable, be either returned to CEDC or, to the extent technically practicable, destroyed (at the Recipient's\nor its Representatives' option), except that Recipient and its Representatives may retain copies of Confidential\nInformation as is required to comply with applicable law or regulation or professional standards or internal compliance\nrequirements. The Recipient's obligations under Section 2 hereof shall survive the return of such tangible embodiments\nof Confidential Information until termination of this Agreement. Notwithstanding anything to the contrary in this\nAgreement, neither Recipient nor any of its Representatives shall be required to delete electronically stored Confidential\nInformation to the extent such deletion would be technologically impracticable or inconsistent with the archival records\nretention policy of the Recipient or its Representatives.\n3.3 The Recipient shall not remove, obscure, overprint, deface or destroy any notice of confidentiality, copyright,\ntrademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of Confidential\nInformation the Recipient obtains from the CEDC Group.\n-3-\n3.4 CEDC understands and acknowledges that the Recipient and an affiliate of the Recipient are currently reporting\npersons with respect to CEDC'S common stock on a Schedule 13D under the provisions of 240.13d-1(a) and 13d-2(a)\nof the United States Securities Exchange Act of 1934, among others, and that accordingly the Recipient and its affiliate\nwill have ongoing disclosure obligations thereunder, which shall not be restricted or limited by this Agreement, including\nthat this Agreement shall be disclosed and publicly filed as an amendment to such Schedule 13D.\n4. Remedies. The Recipient acknowledges that a breach of any of the terms of this Agreement may cause irreparable\nharm to CEDC for which CEDC may not be adequately compensated by money damages. Accordingly, the Recipient\nagrees that, in addition to all other remedies available to CEDC, including any member of the CEDC Group, in an action\nat law, in the event of any breach or threatened breach by the Recipient of the terms of this Agreement, CEDC shall,\nwithout the necessity of proving actual damages or posting any bond or other security, be entitled to seek temporary and\npermanent injunctive relief, including, but not limited to, specific performance of the terms of this Agreement. Each\nparty's rights and obligations under this Agreement are cumulative and are in addition to and not in limitation of such\nparty's rights and obligations under law, equity or any other written agreement.\n5. Miscellaneous.\n5.1 This Agreement shall be governed by and construed and take effect as an enforceable contract in accordance with\nthe laws of the State of New York governing such agreements, without regard to conflicts-of-law principles thereof that\nwould require applicability of any other law. The parties hereto agree that any dispute between them relating to this\nAgreement will be resolved solely in the manner set forth in clause (i) below:\n(i) Each of the parties hereto irrevocably submits to the jurisdiction of the United States District Court located\nin\nthe State of New York and in the Borough of Manhattan, and all appellate courts relating thereto, for the purpose\nof any suit, action, proceeding or judgment relating to or arising out of this Agreement. Service of process in\nconnection with any such suit, action or proceeding may be served on each party hereto anywhere in the world\nby\nthe same methods as are specified for the giving of notices under this Agreement. Each party hereto irrevocably\nwaives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and\nirrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought\nin an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A\nTRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS\nTHAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.\n5.2 Any notices or other correspondence (hereinafter collectively referred to as "correspondence") required or permitted\nto be given hereunder shall be in writing and shall be sent by postage prepaid first class mail, courier or facsimile\nor\ndelivered by hand to the party to whom such correspondence is required or permitted to be given hereunder, and shall be\ndeemed\nsufficient\nupon\nreceipt\nwhen\ndelivered\npersonally\nor\nby\ncourier,\novernight\ndelivery\nservice\nor\nconfirmed\nfacsimile, or three (3) Business Days after being deposited in the regular mail as certified or registered mail (airmail if\nsent internationally) with postage prepaid, if such notice is addressed to the party to be notified at such party's address or\nfacsimile number as set forth below:\n-4-\n(a) All correspondence to the CEDC Group shall be addressed as follows:\nCentral European Distribution Corporation\nBobrowiecka 6\n00-728 Warsaw\nPoland\nAttention: Grant Winterton\nFacsimile: +48 22 456 60 01\nwith a copy to\nSkadden, Arps, Slate, Meagher & Flom (UK) LLP\n40 Bank St., Canary Wharf\nLondon E14 5DS\nUK\nAttention: Scott Simpson, Esq.\nFacsimile: +4420 7519 7070 +44 20 7519 7070\n(b) All correspondence to the Recipient shall be addressed as follows:\nW&L Enterprises Ltd.\nCraigmuir Chambers,\nP.O. Box 71,\nRoad Town,\nTortola,\nBritish Virgin Islands\nAttention: Mark Kaufman\nFacsimile: +7-495-232-6138\nwith copies to\nDarrois Villey Maillot Brochier A.A.R.P.I.\n69, avenue Victor Hugo\nParis 75783\nFrance\nAttention: Ben Burman, Esq.\nFacsimile: + +3314502 4959 33 1 45 02 49 59\nand\nWachtell, Lipton Rosen & Katz\n51 West 52nd Street\nNew York, New York 10019\nAttention: Adam Emmerich, Esq.\nFacsimile: (212) 403-2234\n-5-\n(c) Either party may change the address to which correspondence to it is to be addressed by written notification\nas provided for herein.\n5.3 This Agreement contains the complete and exclusive agreement of the parties with respect to the subject matter\nhereof and supersedes all prior and contemporaneous agreements and understandings whether written or oral, express or\nimplied. This Agreement shall be binding upon and inure to the benefit of the parties, and their respective successors\nand permitted assigns, including without limitation the heirs, executors and legal representatives of each such party. The\nRecipient acknowledges and agrees that all members of the CEDC Group are third party beneficiaries of this\nAgreement. Except where expressly indicated otherwise, the words "written" or "in writing" shall include, but not be\nlimited to, written or printed documents, electronic and facsimile transmissions and computer disks or tapes (whether\nmachine or user readable). If any provision of this Agreement is held invalid, illegal or unenforceable by a court of\ncompetent jurisdiction, such shall not affect any other provision of this Agreement, which shall remain in full force and\neffect to the fullest extent permitted by applicable law. Upon such determination of invalidity or unenforceability,\nthe\nparties\nshall\nnegotiate\nin\ngood\nfaith\nto\nmodify\nthis\nAgreement\nso\nas\nto\neffect\nthe\noriginal\nintent\nof\nthe\nparties\nas\nclosely\nas\npossible in a reasonably acceptable manner in order that the transactions contemplated hereby may be consummated as\noriginally contemplated to the fullest extent possible. No amendment, modification or alteration of the terms of this\nAgreement shall be effective unless made in writing and executed by both parties hereto. A failure or delay in exercising\nany right in respect to this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any\nright\nwill\nnot\nbe\npresumed\nto\npreclude\nany\nsubsequent\nor\nfurther\nexercise\nof\nthat\nright\nor\nthe\nexercise\nof\nany\nother\nright.\nAny such waiver shall be effective only in the specific instance and for the purpose given. This Agreement may\nbe\nsigned in one or more counterparts, each of which shall be deemed to be an original for all purposes.\n6.\nSecurities Laws. The Recipient acknowledges that it is aware (and, if applicable, that its Representatives who are\napprised of this matter have been advised) that the United States securities laws prohibit any person who has material\nnon-public information about a company from purchasing or selling securities of such company, or from communicating\nsuch information to any other person under circumstances in which it is reasonably foreseeable that such person is likely\nto purchase or sell such securities. The Recipient agrees that, to the extent that it has actually received Confidential\nInformation pursuant to this Agreement that constitutes material non-public information, it will not trade any securities\nof CEDC or any of its Subsidiaries prior to the termination of this Agreement and that it will not use any Confidential\nInformation in contravention of the United States securities laws.\n7. Termination.\n7.1 The provisions of this Agreement shall continue in full force and effect at all times until the earliest to occur of (i)\nthe filing of an exchange offer, offering memorandum or disclosure statement with respect to the 2016 Notes or\nConvertible Notes, provided that, to the extent CEDC and the Recipient continue discussions on the terms of a\nRestructuring\nfollowing\nsuch\nfiling,\nthis\nperiod\nshall\nextend\nuntil\nthe\nfiling\nof\nan\namended\nexchange\noffer,\noffering\nmemorandum or disclosure statement reflecting such discussions or (ii) 9:00 a.m. (GMT) on March 5, 2013, whereupon\nthis Agreement shall terminate and be of no further force or effect (the "Termination Date"), other than with respect\nto\nthe rights and obligations of CEDC and Recipient per Section 7.2 hereof.\n-6-\n7.2 On the Termination Date, CEDC shall publicly file a document (the "Cleansing Document") containing all of the\nwritten and oral Confidential Information that constitutes material non-public information and that was provided by\nCEDC or its advisors to any of (a) the Recipient or its Representatives or (b) any holder of securities who is subject to a\nconfidentiality agreement substantially similar to this Agreement (or to such holder's Representatives) that was\nsubsequently shared with the Recipient or its Representatives; provided that such Confidential Information shall not\ninclude any information only disclosed to the Recipients' advisors and specifically designated as 'Non-Cleansing\nInformation' by CEDC at the time of such disclosure (such Confidential Information other than the 'Non-Cleansing\nInformation' being the "Disclosure Information"). As promptly as practicable, CEDC will provide the Recipient with a\ndraft of the Cleansing Document. The Cleansing Document shall be the offering memorandum and/or disclosure\nstatement and/or Form 8-K or any periodic report required or permitted to be filed under the Exchange Act with the\nSecurities Exchange Commission (the "SEC") or, if the SEC's EDGAR filing system is not available, in such other\nmanner that CEDC reasonably determines results in public dissemination of such information. If CEDC does not file the\nCleansing\nDocument\non\nthe\nTermination\nDate\nas\nrequired\nin\naccordance\nwith\nthis\nSection\n7.2,\nthen\nRecipient\nand/or\nits\nRepresentatives shall be entitled to disclose the Confidential Information that was provided by CEDC or any of its\nSubsidiaries hereunder without liability to the extent that Recipient or its Representatives reasonably believes that the\ninformation constitutes material non-public information that is required to allow it to freely trade, through the issuance\nof\na\npress release or similar form of public communication, without any liability or breach under this Agreement (such an\nannouncement,\nthe\n"Recipient's\nCleansingAnnouncement").\nFor\nthe\navoidance\nof\ndoubt,\nif\nthe\nCleansing\nDocument\nfiled by CEDC pursuant hereto is not in sufficient detail to ensure that, in the reasonable opinion of each of the\nRecipients or their Representatives, the Recipients and their Representatives will be cleansed of any Confidential\nInformation hereunder such that, following the filing of the Cleansing Document by CEDC, no Recipient shall be\nrestricted, prevented or prohibited from trading any securities under applicable insider dealing or market abuse laws or\nregulations in any jurisdiction or pursuant to any other applicable laws or regulations, then the Recipients may make a\nRecipient's Cleansing Announcement in the manner set forth above in this Section 7.2.\n[Signatures on the Following Page ]\n-7-\nIN WITNESS WHEREOF, this Agreement is executed by the undersigned parties. The parties hereto further certify that\nthe persons signing this Agreement are duly authorized to do SO.\nCENTRAL EUROPEAN DISTRIBUTION\nW&L ENTERPRISES LTD.\nCORPORATION\nBy: /s/ Grant Winterton\nBy: /s/ Mark Kaufman\nPrint Name: Grant Winterton\nPrint Name: Mark Kaufman\nTitle: Chief Executive Officer\nTitle: Director\n-8-	EX-99.15 2 exhibit-ndaexecutionversion.htm\nEXECUTION VERSION\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nTHIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is made effective as of\nFebruary 18, 2013, by and between Central European Distribution Corporation, a Delaware corporation (“CEDC”) and\nW&L Enterprises Ltd. (the “Recipient”).\nWHEREAS, CEDC has issued (i) 3.00% Convertible Notes due 2013 (the “Convertible Notes”) and (ii) $380\nmillion 9.125% Senior Secured Notes due 2016 and €430 ($556.6 million) 8.875% Senior Secured Notes due 2016\n(collectively, the “2016 Notes” and together with the Convertible Notes, the “Notes”).\nWHEREAS, the Recipient holds 7,517,549 shares of CEDC’s outstanding common stock (the “Common\nStock”).\nWHEREAS the Recipient and CEDC wish to enter into discussions with respect to a potential restructuring of the\nNotes and Common Stock (a “Restructuring”).\nWHEREAS, CEDC, in such discussions, may disclose certain confidential information to the Recipient in order\nto initiate, facilitate, and/or progress such restructuring discussions (the “Purpose”).\nNOW THEREFORE, in consideration for receiving certain confidential information and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:\n1. Scope of Confidential Information.\n1.1 Subject to Section 1.2 below, “Confidential Information” means confidential, secret, proprietary or other non-public\ninformation pertaining to the business, operations, brands, marketing plans, financial matters, legal matters, products,\nprojects, business plans or practices, research and development, product development, intellectual property, financial\nmodels, trademarks, trade secrets, accounting and financing data, and methods of production, distribution or\nprocurement, suppliers, distributors, consultants, advisors or employees, directors or officers of CEDC or any of its\nSubsidiaries (defined below) (together, the “CEDC Group”) that is disclosed or otherwise made available, either orally or\nin writing, by any member of the CEDC Group to the Recipient or its affiliates, agents, or advisors (including, without\nlimitation, financial advisors, attorneys, banks and other sources of equity and debt financing and accountants)\n(collectively, “Representatives”).\n1.2 Notwithstanding anything herein to the contrary, Confidential Information shall not include any information that (a)\nis or becomes publicly available (other than through a breach of this Agreement by the Recipient), (b) is in the\npossession of or known to the Recipient or its Representatives prior to such information having been furnished to\nRecipient hereunder, (c) is independently conceived, developed or discovered by the Recipient or on its behalf, (d) is\nmade available to the Recipient or its Representatives by any person other than a member of the CEDC Group without\nany known breach of any obligation of confidentiality of such other person, or (e) is the subject of a written confirmation\nfrom CEDC or any of its Subsidiaries or any member of the CEDC Group stating that any such information is not\nConfidential Information. In clarification of the foregoing, a general disclosure in the public domain will not cause more\nspecific (but related) information to be excluded as Confidential Information under one of the above exceptions.\n1.3\n“Subsidiary” of any entity means any other entity in which such first entity owns or Controls, directly or\nindirectly, an amount of the voting securities, other voting interests or voting partnership interests sufficient to elect at\nleast a majority of such other entity’s board of directors or other governing body (or, if there are no such voting interests,\n50% or more of the equity interests of such other entity). For purposes of this Section 1.3, “Control” means the\npossession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an\nindividual, corporation, partnership, limited partnership or limited liability company, whether through the ownership of\nvoting securities, by contract or otherwise.\n2. Use and Disclosure of Confidential Information.\n2.1 The Recipient agrees that all Confidential Information will be held and maintained by it in the strictest confidence,\nwill be used by it solely and exclusively for the purpose of evaluating, negotiating and implementing a Restructuring,\nand will not, directly or indirectly, be used or disclosed by it for any other purpose whatsoever. CEDC acknowledges that\nRecipient is engaged in businesses similar to those conducted by CEDC and the CEDC Group or other industries in the\nordinary course of Recipient’s business. The Recipient will use reasonable care to maintain the confidentiality of\nConfidential Information, provided that such care shall be at least as great as the precautions taken by the Recipient to\nprotect its own confidential information of similar nature.\n2.2 The Recipient agrees that it will not, without the prior written consent of CEDC, directly or indirectly, disclose all or\nany portion of the Confidential Information, or the substance thereof, to any third party other than its Representatives in\nconnection with the Purpose, except, subject to Section 2.3 below, to the extent required by applicable law or legal\nprocess.\n2.3 The Recipient agrees that if the Recipient is required by any law, court or governmental order to disclose any\nConfidential Information, the Recipient will provide CEDC, to the extent practicable and legally permissible, with\nprompt written notice of such requirement so that CEDC or the applicable member of the CEDC Group may seek an\nappropriate protective order with respect thereto. If such an order is not obtained, only that portion of the Confidential\nInformation shall be furnished that is legally required to be furnished, at the sole expense of CEDC or one of its\nSubsidiaries, and the Recipient shall exercise commercial efforts to obtain reliable assurances that confidential treatment\nwill be accorded such Confidential Information. Notwithstanding the foregoing, notice to CEDC shall not be required\nwhere disclosure is made (i) in response to a request by a regulatory or self-regulatory authority, or (ii) in connection\nwith a routine audit or examination by a bank examiner or auditor, and such request, audit or examination does not\nreference CEDC or this Agreement.\n2.4 The Recipient shall ensure that each of its Representatives who are either provided with Confidential Information, or\notherwise have access to such Confidential Information, are informed of its confidential nature and are directed to abide\nby the terms of this Agreement applicable to Representatives or appropriate duties or obligations of confidentiality\nimposing confidentiality obligations on such Representatives (except that there shall be no requirement to so inform\nwhere the Representative to whom the information is to be disclosed is subject to professional obligations to maintain the\nconfidentiality of the Confidential Information or is otherwise bound by requirements of confidentiality in relation to the\nConfidential Information). The Recipient agrees to be liable for any breach of this Agreement by the Recipient or its\naffiliates or Representatives. The Recipient shall use reasonable efforts to provide written notice to CEDC of any use or\ndisclosure of Confidential Information in breach of this Agreement of which Recipient is aware, including without\nlimitation written details regarding the circumstances and the identity of the individuals or entities who as a result\nreceived or may have received access to such Confidential Information.\n-2-\n3. Certain Rights and Limitations.\n3.1 The parties hereto are independent of one another and this Agreement does not create any agency, partnership or\nsimilar relationship between the parties hereto. CEDC acknowledges that neither the Recipient nor any of its affiliates,\nnor its or their Representatives, will be deemed to have made any representation or warranty or commitment with respect\nto the Purpose except as may be set forth in one or more final, legally binding definitive agreements. Except as otherwise\nprovided by CEDC, the Recipient (i) acknowledges that neither CEDC nor any of its Representatives make any\nrepresentation or warranty hereunder, either express or implied, as to the truth, accuracy or completeness of any\nConfidential Information, provided, however, that CEDC, the CEDC Group and any of their Representatives shall use\ngood faith efforts to ensure that all Confidential Information furnished to Recipient hereunder is true, accurate and\ncomplete to the best of their knowledge, and (ii) agrees, to the fullest extent permitted by law that in the absence of fraud\nor willful misconduct on their part neither CEDC nor any of its Subsidiaries or Representatives shall have any liability to\nthe Recipient or its Representatives on any basis (including, without limitation, in contract, tort, under federal or state\nsecurities laws or otherwise) as a result of the review by the Recipient or its Representatives or the use of the\nConfidential Information by the Recipient or its Representatives in accordance with the provisions of this Agreement.\n3.2 The Recipient agrees that, upon written request by CEDC, all Confidential Information (and all copies, summaries\nand notes of the contents or parts thereof) and all Company property received by the Recipient shall, as soon as\nreasonably practicable, be either returned to CEDC or, to the extent technically practicable, destroyed (at the Recipient’s\nor its Representatives’ option), except that Recipient and its Representatives may retain copies of Confidential\nInformation as is required to comply with applicable law or regulation or professional standards or internal compliance\nrequirements. The Recipient’s obligations under Section 2 hereof shall survive the return of such tangible embodiments\nof Confidential Information until termination of this Agreement. Notwithstanding anything to the contrary in this\nAgreement, neither Recipient nor any of its Representatives shall be required to delete electronically stored Confidential\nInformation to the extent such deletion would be technologically impracticable or inconsistent with the archival records\nretention policy of the Recipient or its Representatives.\n3.3 The Recipient shall not remove, obscure, overprint, deface or destroy any notice of confidentiality, copyright,\ntrademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of Confidential\nInformation the Recipient obtains from the CEDC Group.\n-3-\n3.4 CEDC understands and acknowledges that the Recipient and an affiliate of the Recipient are currently reporting\npersons with respect to CEDC’s common stock on a Schedule 13D under the provisions of §§ 240.13d-1(a) and 13d-2(a)\nof the United States Securities Exchange Act of 1934, among others, and that accordingly the Recipient and its affiliate\nwill have ongoing disclosure obligations thereunder, which shall not be restricted or limited by this Agreement, including\nthat this Agreement shall be disclosed and publicly filed as an amendment to such Schedule 13D.\n4. Remedies. The Recipient acknowledges that a breach of any of the terms of this Agreement may cause irreparable\nharm to CEDC for which CEDC may not be adequately compensated by money damages. Accordingly, the Recipient\nagrees that, in addition to all other remedies available to CEDC, including any member of the CEDC Group, in an action\nat law, in the event of any breach or threatened breach by the Recipient of the terms of this Agreement, CEDC shall,\nwithout the necessity of proving actual damages or posting any bond or other security, be entitled to seek temporary and\npermanent injunctive relief, including, but not limited to, specific performance of the terms of this Agreement. Each\nparty's rights and obligations under this Agreement are cumulative and are in addition to and not in limitation of such\nparty's rights and obligations under law, equity or any other written agreement.\n5. Miscellaneous.\n5.1 This Agreement shall be governed by and construed and take effect as an enforceable contract in accordance with\nthe laws of the State of New York governing such agreements, without regard to conflicts-of-law principles thereof that\nwould require applicability of any other law. The parties hereto agree that any dispute between them relating to this\nAgreement will be resolved solely in the manner set forth in clause (i) below:\n(i) Each of the parties hereto irrevocably submits to the jurisdiction of the United States District Court located in\nthe State of New York and in the Borough of Manhattan, and all appellate courts relating thereto, for the purpose\nof any suit, action, proceeding or judgment relating to or arising out of this Agreement. Service of process in\nconnection with any such suit, action or proceeding may be served on each party hereto anywhere in the world by\nthe same methods as are specified for the giving of notices under this Agreement. Each party hereto irrevocably\nwaives any objection to the laying of venue of any such suit, action or proceeding brought in such courts and\nirrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought\nin an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A\nTRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS\nTHAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.\n5.2 Any notices or other correspondence (hereinafter collectively referred to as “correspondence”) required or permitted\nto be given hereunder shall be in writing and shall be sent by postage prepaid first class mail, courier or facsimile or\ndelivered by hand to the party to whom such correspondence is required or permitted to be given hereunder, and shall be\ndeemed sufficient upon receipt when delivered personally or by courier, overnight delivery service or confirmed\nfacsimile, or three (3) Business Days after being deposited in the regular mail as certified or registered mail (airmail if\nsent internationally) with postage prepaid, if such notice is addressed to the party to be notified at such party’s address or\nfacsimile number as set forth below:\n-4-\n(a) All correspondence to the CEDC Group shall be addressed as follows:\nCentral European Distribution Corporation\nBobrowiecka 6\n00-728 Warsaw\nPoland\nAttention: Grant Winterton\nFacsimile: +48 22 456 60 01\nwith a copy to\nSkadden, Arps, Slate, Meagher & Flom (UK) LLP\n40 Bank St., Canary Wharf\nLondon E14 5DS\nUK\nAttention: Scott Simpson, Esq.\nFacsimile: +44 20 7519 7070\n(b) All correspondence to the Recipient shall be addressed as follows:\nW&L Enterprises Ltd.\nCraigmuir Chambers,\nP.O. Box 71,\nRoad Town,\nTortola,\nBritish Virgin Islands\nAttention: Mark Kaufman\nFacsimile: +7-495-232-6138\nwith copies to\nDarrois Villey Maillot Brochier A.A.R .P.I .\n69, avenue Victor Hugo\nParis 75783\nFrance\nAttention: Ben Burman, Esq.\nFacsimile: + 33 1 45 02 49 59\nand\nWachtell, Lipton Rosen & Katz\n51 West 52nd Street\nNew York, New York 10019\nAttention: Adam Emmerich, Esq.\nFacsimile: (212) 403-2234\n-5-\n(c) Either party may change the address to which correspondence to it is to be addressed by written notification\nas provided for herein.\n5.3 This Agreement contains the complete and exclusive agreement of the parties with respect to the subject matter\nhereof and supersedes all prior and contemporaneous agreements and understandings whether written or oral, express or\nimplied. This Agreement shall be binding upon and inure to the benefit of the parties, and their respective successors\nand permitted assigns, including without limitation the heirs, executors and legal representatives of each such party. The\nRecipient acknowledges and agrees that all members of the CEDC Group are third party beneficiaries of this\nAgreement. Except where expressly indicated otherwise, the words “written” or “in writing” shall include, but not be\nlimited to, written or printed documents, electronic and facsimile transmissions and computer disks or tapes (whether\nmachine or user readable). If any provision of this Agreement is held invalid, illegal or unenforceable by a court of\ncompetent jurisdiction, such shall not affect any other provision of this Agreement, which shall remain in full force and\neffect to the fullest extent permitted by applicable law. Upon such determination of invalidity or unenforceability, the\nparties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as\npossible in a reasonably acceptable manner in order that the transactions contemplated hereby may be consummated as\noriginally contemplated to the fullest extent possible. No amendment, modification or alteration of the terms of this\nAgreement shall be effective unless made in writing and executed by both parties hereto. A failure or delay in exercising\nany right in respect to this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any\nright will not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right.\nAny such waiver shall be effective only in the specific instance and for the purpose given. This Agreement may be\nsigned in one or more counterparts, each of which shall be deemed to be an original for all purposes.\n6. Securities Laws. The Recipient acknowledges that it is aware (and, if applicable, that its Representatives who are\napprised of this matter have been advised) that the United States securities laws prohibit any person who has material\nnon-public information about a company from purchasing or selling securities of such company, or from communicating\nsuch information to any other person under circumstances in which it is reasonably foreseeable that such person is likely\nto purchase or sell such securities. The Recipient agrees that, to the extent that it has actually received Confidential\nInformation pursuant to this Agreement that constitutes material non-public information, it will not trade any securities\nof CEDC or any of its Subsidiaries prior to the termination of this Agreement and that it will not use any Confidential\nInformation in contravention of the United States securities laws.\n7. Termination.\n7.1 The provisions of this Agreement shall continue in full force and effect at all times until the earliest to occur of (i)\nthe filing of an exchange offer, offering memorandum or disclosure statement with respect to the 2016 Notes or\nConvertible Notes, provided that, to the extent CEDC and the Recipient continue discussions on the terms of a\nRestructuring following such filing, this period shall extend until the filing of an amended exchange offer, offering\nmemorandum or disclosure statement reflecting such discussions or (ii) 9:00 a.m . (GMT) on March 5, 2013, whereupon\nthis Agreement shall terminate and be of no further force or effect (the “Termination Date”), other than with respect to\nthe rights and obligations of CEDC and Recipient per Section 7.2 hereof.\n-6-\n7.2 On the Termination Date, CEDC shall publicly file a document (the “Cleansing Document”) containing all of the\nwritten and oral Confidential Information that constitutes material non-public information and that was provided by\nCEDC or its advisors to any of (a) the Recipient or its Representatives or (b) any holder of securities who is subject to a\nconfidentiality agreement substantially similar to this Agreement (or to such holder ’s Representatives) that was\nsubsequently shared with the Recipient or its Representatives; provided that such Confidential Information shall not\ninclude any information only disclosed to the Recipients' advisors and specifically designated as ‘Non-Cleansing\nInformation’ by CEDC at the time of such disclosure (such Confidential Information other than the ‘Non-Cleansing\nInformation’ being the “Disclosure Information”). As promptly as practicable, CEDC will provide the Recipient with a\ndraft of the Cleansing Document. The Cleansing Document shall be the offering memorandum and/or disclosure\nstatement and/or Form 8-K or any periodic report required or permitted to be filed under the Exchange Act with the\nSecurities Exchange Commission (the “SEC”) or, if the SEC’s EDGAR filing system is not available, in such other\nmanner that CEDC reasonably determines results in public dissemination of such information. If CEDC does not file the\nCleansing Document on the Termination Date as required in accordance with this Section 7.2, then Recipient and/or its\nRepresentatives shall be entitled to disclose the Confidential Information that was provided by CEDC or any of its\nSubsidiaries hereunder without liability to the extent that Recipient or its Representatives reasonably believes that the\ninformation constitutes material non-public information that is required to allow it to freely trade, through the issuance of\na press release or similar form of public communication, without any liability or breach under this Agreement (such an\nannouncement, the “Recipient’s Cleansing Announcement”). For the avoidance of doubt, if the Cleansing Document\nfiled by CEDC pursuant hereto is not in sufficient detail to ensure that, in the reasonable opinion of each of the\nRecipients or their Representatives, the Recipients and their Representatives will be cleansed of any Confidential\nInformation hereunder such that, following the filing of the Cleansing Document by CEDC, no Recipient shall be\nrestricted, prevented or prohibited from trading any securities under applicable insider dealing or market abuse laws or\nregulations in any jurisdiction or pursuant to any other applicable laws or regulations, then the Recipients may make a\nRecipient’s Cleansing Announcement in the manner set forth above in this Section 7.2.\n[Signatures on the Following Page ]\n-7-\nIN WITNESS WHEREOF, this Agreement is executed by the undersigned parties. The parties hereto further certify that\nthe persons signing this Agreement are duly authorized to do so.\nCENTRAL EUROPEAN DISTRIBUTION\nCORPORATION\nBy: /s/ Grant Winterton\nPrint Name: Grant Winterton\nTitle: Chief Executive Officer\nW&L ENTERPRISES LTD.\nBy: /s/ Mark Kaufman\nPrint Name: Mark Kaufman\nTitle: Director\n-8-
+08cc9be2c873778b05d95d03026705ca.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 3 b58545a1exv99wxdyx3y.htm EX-99.(D)(3) MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement is made as of the 4th day of May 2005 by and between NEON SYSTEMS, INC., a Delaware corporation, with its principal\noffices located at 14100 Southwest Freeway, Suite 500, Sugar Land, Texas 77478 (the “Company”) and Progress Software Corporation, a\nMassachusetts corporation, with its principal offices located at 14 Oak Park, Bedford, Massachusetts 01730 (“PSC”).\nPSC and Company are interested in entering into discussions for the purposes of evaluating a potential business relationship. In order to\nproceed with these discussions, PSC or Company may disclose certain “Confidential Information” of its own (the “Disclosing Party”) to the\nother party (the “Receiving Party”). The Receiving Party agrees to keep such information as “Confidential Information”, subject to the provisions\nof this Agreement. PSC and the Company agree as follows:\n1. “Confidential Information” means certain confidential information or materials relating to the proprietary technical, financial, customer or\nbusiness affairs of the Disclosing Party which is (a) disclosed by the Disclosing Party to the Receiving Party in written or tangible form or (b)\ndisclosed orally by the Disclosing Party to the Receiving Party in connection with the evaluation of a potential business relationship between the\nParties. The Parties acknowledge and agree that any information concerning the Disclosing Party (whether prepared by the Disclosing Party, its\nadvisors or otherwise and irrespective of the form of communication) which is furnished hereunder to the Receiving Party or to its\nrepresentatives now or in the future by or on behalf of the Disclosing Party, including, without limitation, all notes, analyses, compilations,\nstudies, interpretations or other documents prepared by each party or its representatives which contain, reflect or are based upon, in whole or in\npart, the information furnished to such party or its representatives pursuant hereto, shall be considered Confidential Information hereunder. The\nparties expressly agree that the existence of this Agreement is deemed to be Confidential Information of the parties.\n2. Except as required by law, regulation or legal process, the Receiving Party agrees to use the Confidential Information solely for evaluating\na potential business relationship with the Disclosing Party (the “Permitted Use”). The Receiving Party further agrees that it shall keep in\nconfidence and not disclose any part of the Confidential Information to any third party, except to its employees or professional advisors with a\nneed to know and who are made aware of and accept the provisions of this Agreement. PSC and Company agree that neither party shall disclose\nthat any discussions have taken place.\n3. Upon receipt of written notice from the Disclosing Party, the Receiving Party shall return all Confidential Information, in written or\ntangible form, to the Disclosing Party, together with any copies thereof, in the possession of the Receiving Party or that of its professional\nadvisors.\n4. The restrictive obligations set forth herein shall not apply to the disclosure or use of any Confidential Information which (a) is or hereafter\nbecomes public knowledge through no fault of the Receiving Party; (b) is known by the Receiving Party on the date of disclosure and is not\nsubject to any restriction on disclosure provided such knowledge was not obtained from a third party with an obligation of non-disclosure to the\nother party; (c) is disclosed to the Receiving Party by a third party who is not subject to any restriction on disclosure by the Disclosing Party; or\n(d) the Receiving Party can demonstrate was developed by it independently without benefit of, or based on, the disclosures made hereunder.\n5. The parties expressly agree that neither the terms or conditions of this Agreement, nor the discussions held by the parties to address the\nfeasibility of a potential business relationship shall be construed as to prevent either party from pursuing similar discussions with third parties in\nsimilar markets or obligate either party to take, continue or forgo any action relating to the above-mentioned discussions. Further, nothing in this\nAgreement shall be construed as prohibiting or restricting either party from independently developing, acquiring, and marketing products,\nservices, and other materials, which are similar to or competitive in any geographic area and in any form with the other party’s product(s) or\nservice(s).\n6. The Disclosing Party reserves all rights and benefits afforded under U.S. and international copyright, patent, trade secret and all other\nintellectual property rights in all Confidential Information furnished by the Disclosing Party to the Receiving Party. The Receiving Party does not\nacquire any intellectual property rights under this Agreement or through any disclosure hereunder, except the limited right to use such\nConfidential Information for the Permitted Use in accordance with this Agreement.\n7. This Agreement shall have no force and effect after two (2) years from the date of the last disclosure of Confidential Information hereunder\nor, if a definitive agreement is entered into between the parties relating to a business relationship, upon execution by the parties of said\nagreement.\n8. Each party acknowledges that Confidential Information is owned solely by the Disclosing Party and that the unauthorized disclosure or use\nof such Confidential Information might cause irreparable harm and significant injury, the degree of which may be difficult to ascertain.\nAccordingly, each party agrees that the Disclosing Party will have the right to seek an immediate injunction enjoining any breach of this\nAgreement, as well as the right to pursue any and all other rights and remedies available.\n9. Each party (a) acknowledges that it is aware that United States federal and state securities laws and regulations restrict persons with\nmaterial non-public information about a company obtained directly or indirectly from that company from purchasing or selling securities of such\ncompany, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such\nperson is likely to purchase or sell securities of such company, and (b) agrees that it will not use, or cause any third person to use, any\ninformation of the other party or its affiliates in contravention of such laws and regulations.\n-2-\n10. During the term of this Agreement neither party shall, without the prior written approval of the other party, solicit the services of or make\nan offer of employment to any person who is or was, as the case may be, an employee or consultant of the other party during the term of this\nAgreement, unless such solicitation or offer results from a general electronic or print media advertisements of or website postings of employment\nopportunities to which any such employee or consultant responds without any other inducement by a party. In case of breach of this section 10,\nthe parties agree to liquidated damages of $50,000 per person.\n11. This Agreement represents the entire agreement between the parties with respect to its subject matter. The invalidity or unenforceability of\nany part of this Agreement for any reason whatsoever shall not affect the validity or enforceability of the remainder. This Agreement shall he\nconstrued and enforced pursuant to the laws of The Commonwealth of Massachusetts, exclusive of its rules governing conflict of law and choice\nof laws.\nIN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have executed this Agreement as of the date first\nwritten above.\nPROGRESS SOFTWARE\nNEON SYSTEMS, INC.\nBy:\n/s/ Evan McDonnell\nBy:\n/s/ Brian D. Helman\nName: Evan McDonnell\nName: Brian D. Helman\nTitle:\nVice President\nTitle:\nChief Financial Officer\n-3-	EX-99.(D)(3) 3 b58545alexv99wxdyx3y.htm EX-99.(D)(3) MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement is made as of the 4th day of May 2005 by and between NEON SYSTEMS, INC., a Delaware corporation, with its principal\noffices located at 14100 Southwest Freeway, Suite 500, Sugar Land, Texas 77478 (the “Company”) and Progress Software Corporation, a\nMassachusetts corporation, with its principal offices located at 14 Oak Park, Bedford, Massachusetts 01730 (“PSC>).\nPSC and Company are interested in entering into discussions for the purposes of evaluating a potential business relationship. In order to\nproceed with these discussions, PSC or Company may disclose certain “Confidential Information” of its own (the “Disclosing Party™) to the\nother party (the “Receiving Party”). The Receiving Party agrees to keep such information as “Confidential Information”, subject to the provisions\nof this Agreement. PSC and the Company agree as follows:\n1. “Confidential Information” means certain confidential information or materials relating to the proprietary technical, financial, customer or\nbusiness affairs of the Disclosing Party which is (a) disclosed by the Disclosing Party to the Receiving Party in written or tangible form or (b)\ndisclosed orally by the Disclosing Party to the Receiving Party in connection with the evaluation of a potential business relationship between the\nParties. The Parties acknowledge and agree that any information concerning the Disclosing Party (whether prepared by the Disclosing Party, its\nadvisors or otherwise and irrespective of the form of communication) which is furnished hereunder to the Receiving Party or to its\nrepresentatives now or in the future by or on behalf of the Disclosing Party, including, without limitation, all notes, analyses, compilations,\nstudies, interpretations or other documents prepared by each party or its representatives which contain, reflect or are based upon, in whole or in\npart, the information furnished to such party or its representatives pursuant hereto, shall be considered Confidential Information hereunder. The\nparties expressly agree that the existence of this Agreement is deemed to be Confidential Information of the parties.\n2. Except as required by law, regulation or legal process, the Receiving Party agrees to use the Confidential Information solely for evaluating\na potential business relationship with the Disclosing Party (the “Permitted Use”). The Receiving Party further agrees that it shall keep in\nconfidence and not disclose any part of the Confidential Information to any third party, except to its employees or professional advisors with a\nneed to know and who are made aware of and accept the provisions of this Agreement. PSC and Company agree that neither party shall disclose\nthat any discussions have taken place.\n3. Upon receipt of written notice from the Disclosing Party, the Receiving Party shall return all Confidential Information, in written or\ntangible form, to the Disclosing Party, together with any copies thereof, in the possession of the Receiving Party or that of its professional\nadvisors.\n4. The restrictive obligations set forth herein shall not apply to the disclosure or use of any Confidential Information which (a) is or hereafter\nbecomes public knowledge through no fault of the Receiving Party; (b) is known by the Receiving Party on the date of disclosure and is not\nsubject to any restriction on disclosure provided such knowledge was not obtained from a third party with an obligation of non-disclosure to the\nother party; (c) is disclosed to the Receiving Party by a third party who is not subject to any restriction on disclosure by the Disclosing Party; or\n(d) the Receiving Party can demonstrate was developed by it independently without benefit of, or based on, the disclosures made hereunder.\n5. The parties expressly agree that neither the terms or conditions of this Agreement, nor the discussions held by the parties to address the\nfeasibility of a potential business relationship shall be construed as to prevent either party from pursuing similar discussions with third parties in\nsimilar markets or obligate either party to take, continue or forgo any action relating to the above-mentioned discussions. Further, nothing in this\nAgreement shall be construed as prohibiting or restricting either party from independently developing, acquiring, and marketing products,\nservices, and other materials, which are similar to or competitive in any geographic area and in any form with the other party’s product(s) or\nservice(s).\n6. The Disclosing Party reserves all rights and benefits afforded under U.S. and international copyright, patent, trade secret and all other\nintellectual property rights in all Confidential Information furnished by the Disclosing Party to the Receiving Party. The Receiving Party does not\nacquire any intellectual property rights under this Agreement or through any disclosure hereunder, except the limited right to use such\nConfidential Information for the Permitted Use in accordance with this Agreement.\n7. This Agreement shall have no force and effect after two (2) years from the date of the last disclosure of Confidential Information hereunder\nor, if a definitive agreement is entered into between the parties relating to a business relationship, upon execution by the parties of said\nagreement.\n8. Each party acknowledges that Confidential Information is owned solely by the Disclosing Party and that the unauthorized disclosure or use\nof such Confidential Information might cause irreparable harm and significant injury, the degree of which may be difficult to ascertain.\nAccordingly, each party agrees that the Disclosing Party will have the right to seek an immediate injunction enjoining any breach of this\nAgreement, as well as the right to pursue any and all other rights and remedies available.\n9. Each party (a) acknowledges that it is aware that United States federal and state securities laws and regulations restrict persons with\nmaterial non-public information about a company obtained directly or indirectly from that company from purchasing or selling securities of such\ncompany, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such\nperson is likely to purchase or sell securities of such company, and (b) agrees that it will not use, or cause any third person to use, any\ninformation of the other party or its affiliates in contravention of such laws and regulations.\n-\n10. During the term of this Agreement neither party shall, without the prior written approval of the other party, solicit the services of or make\nan offer of employment to any person who is or was, as the case may be, an employee or consultant of the other party during the term of this\nAgreement, unless such solicitation or offer results from a general electronic or print media advertisements of or website postings of employment\nopportunities to which any such employee or consultant responds without any other inducement by a party. In case of breach of this section 10,\nthe parties agree to liquidated damages of $50,000 per person.\n11. This Agreement represents the entire agreement between the parties with respect to its subject matter. The invalidity or unenforceability of\nany part of this Agreement for any reason whatsoever shall not affect the validity or enforceability of the remainder. This Agreement shall he\nconstrued and enforced pursuant to the laws of The Commonwealth of Massachusetts, exclusive of its rules governing conflict of law and choice\nof laws.\nIN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have executed this Agreement as of the date first\nwritten above.\nPROGRESS SOFTWARE NEON SYSTEMS, INC.\nBy: /s/ Evan McDonnell By: /s/ Brian D. Helman\nName: Evan McDonnell Name: Brian D. Helman\nTitle: Vice President Title: Chief Financial Officer\n_3-	EX-99.(D)(3) 3 b58545alexv99wxdyx3y.htm EX-99.(D)(3 MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement is made as of the 4th day of May 2005 by and between NEON SYSTEMS, INC., a Delaware corporation, with its principal\noffices located at 14100 Southwest Freeway, Suite 500, Sugar Land, Texas 77478 (the "Company") and Progress Software Corporation, a\nMassachusetts corporation, with its principal offices located at 14 Oak Park, Bedford, Massachusetts 01730 ("PSC").\nPSC\nand\nCompany are interested in entering into discussions for the purposes of evaluating a potential business relationship. In order to\nproceed with these discussions, PSC or Company may disclose certain "Confidential Information" of its own (the "Disclosing Party") to the\nother party (the "Receiving Party"). The Receiving Party agrees to keep such information as "Confidential Information", subject to the provisions\nof this Agreement. PSC and the Company agree as follows:\n1. "Confidential Information" means certain confidential information or materials relating to the proprietary technical, financial, customer or\nbusiness affairs of the Disclosing Party which is (a) disclosed by the Disclosing Party to the Receiving Party in written or tangible form or (b)\ndisclosed orally by the Disclosing Party to the Receiving Party in connection with the evaluation of a potential business relationship between the\nParties. The Parties acknowledge and agree that any information concerning the Disclosing Party (whether prepared by the Disclosing Party,\nits\nadvisors or otherwise and irrespective of the form of communication) which is furnished hereunder to the Receiving Party or to its\nrepresentatives now or in the future by or on behalf of the Disclosing Party, including, without limitation, all notes, analyses, compilations,\nstudies, interpretations or other documents prepared by each party or its representatives which contain, reflect or are based upon, in whole or in\npart, the information furnished to such party or its representatives pursuant hereto, shall be considered Confidential Information hereunder. The\nparties expressly agree that the existence of this Agreement is deemed to be Confidential Information of the parties.\n2. Except as required by law, regulation or legal process, the Receiving Party agrees to use the Confidential Information solely for evaluating\na potential business relationship with the Disclosing Party (the "Permitted Use"). The Receiving Party further agrees that it shall keep in\nconfidence and not disclose any part of the Confidential Information to any third party, except to its employees or professional advisors with a\nneed to know and who are made aware of and accept the provisions of this Agreement. PSC and Company agree that neither party shall disclose\nthat any discussions have taken place.\n3. Upon receipt of written notice from the Disclosing Party, the Receiving Party shall return all Confidential Information, in written or\ntangible form, to the Disclosing Party, together with any copies thereof, in the possession of the Receiving Party or that of its professional\nadvisors.\n4. The restrictive obligations set forth herein shall not apply to the disclosure or use of any Confidential Information which (a) is or hereafter\nbecomes public knowledge through no fault of the Receiving Party; (b) is known by the Receiving Party on the date of disclosure and is not\nsubject to any restriction on disclosure provided such knowledge was not obtained from a third party with an obligation of non-disclosure to\nthe\nother party; (c) is disclosed to the Receiving Party by a third party who is not subject to any restriction on disclosure by the Disclosing Party; or\n(d) the Receiving Party can demonstrate was developed by it independently without benefit of, or based on, the disclosures made hereunder.\n5.\nThe parties expressly agree that neither the terms or conditions of this Agreement, nor the discussions held by the parties to address the\nfeasibility of a potential business relationship shall be construed as to prevent either party from pursuing similar discussions with third parties in\nsimilar markets or obligate either party to take, continue or forgo any action relating to the above-mentioned discussions.\nFurther,\nnothing\nin\nthis\nAgreement shall be construed as prohibiting or restricting either party from independently developing, acquiring, and marketing products,\nservices, and other materials, which are similar to or competitive in any geographic area and in any form with the other party's product(s)\nor\nservice(s).\n6. The Disclosing Party reserves all rights and benefits afforded under U.S. and international copyright, patent, trade secret and all other\nintellectual property rights in all Confidential Information furnished by the Disclosing Party to the Receiving Party. The Receiving Party does not\nacquire any intellectual property rights under this Agreement or through any disclosure hereunder, except the limited right to use such\nConfidential Information for the Permitted Use in accordance with this Agreement.\n7. This Agreement shall have no force and effect after two (2) years from the date of the last disclosure of Confidential Information hereunder\nor, if a definitive agreement is entered into between the parties relating to a business relationship, upon execution by the parties of said\nagreement.\n8. Each party acknowledges that Confidential Information is owned solely by the Disclosing Party and that the unauthorized disclosure or use\nof\nsuch Confidential Information might cause irreparable harm and significant injury, the degree of which may be difficult to ascertain.\nAccordingly, each party agrees that the Disclosing Party will have the right to seek an immediate injunction enjoining any breach of this\nAgreement, as well as the right to pursue any and all other rights and remedies available.\n9. Each party (a) acknowledges that it is aware that United States federal and state securities laws and regulations restrict persons with\nmaterial non-public information about a company obtained directly or indirectly from that company from purchasing or selling securities of such\ncompany, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such\nperson is likely to purchase or sell securities of such company, and (b) agrees that it will not use, or cause any third person to use, any\ninformation of the other party or its affiliates in contravention of such laws and regulations.\n-2-\n10. During the term of this Agreement neither party shall, without the prior written approval of the other party, solicit the services of or make\nan offer of employment to any person who is or was, as the case may be, an employee or consultant of the other party during the term of this\nAgreement, unless such solicitation or offer results from a general electronic or print media advertisements of or website postings of employment\nopportunities to which any such employee or consultant responds without any other inducement by a party. In case of breach of this section 10,\nthe parties agree to liquidated damages of $50,000 per person.\n11. This Agreement represents the entire agreement between the parties with respect to its subject matter. The invalidity or unenforceability of\nany\npart of this Agreement for any reason whatsoever shall not affect the validity or enforceability of the remainder. This Agreement shall he\nconstrued and enforced pursuant to the laws of The Commonwealth of Massachusetts, exclusive of its rules governing conflict of law and choice\nof laws.\nIN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have executed this Agreement as of the date first\nwritten above.\nPROGRESS SOFTWARE\nNEON SYSTEMS, INC.\nBy:\n/s/ Evan McDonnell\nBy:\n/s/ Brian D. Helman\nName: Evan McDonnell\nName: Brian D. Helman\nTitle:\nVice President\nTitle:\nChief Financial Officer\n-3-	EX-99.(D)(3) 3 b58545a1exv99wxdyx3y.htm EX-99.(D)(3) MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement is made as of the 4th day of May 2005 by and between NEON SYSTEMS, INC., a Delaware corporation, with its principal\noffices located at 14100 Southwest Freeway, Suite 500, Sugar Land, Texas 77478 (the “Company”) and Progress Software Corporation, a\nMassachusetts corporation, with its principal offices located at 14 Oak Park, Bedford, Massachusetts 01730 (“PSC”).\nPSC and Company are interested in entering into discussions for the purposes of evaluating a potential business relationship. In order to\nproceed with these discussions, PSC or Company may disclose certain “Confidential Information” of its own (the “Disclosing Party”) to the\nother party (the “Receiving Party”). The Receiving Party agrees to keep such information as “Confidential Information”, subject to the provisions\nof this Agreement. PSC and the Company agree as follows:\n1. “Confidential Information” means certain confidential information or materials relating to the proprietary technical, financial, customer or\nbusiness affairs of the Disclosing Party which is (a) disclosed by the Disclosing Party to the Receiving Party in written or tangible form or (b)\ndisclosed orally by the Disclosing Party to the Receiving Party in connection with the evaluation of a potential business relationship between the\nParties. The Parties acknowledge and agree that any information concerning the Disclosing Party (whether prepared by the Disclosing Party, its\nadvisors or otherwise and irrespective of the form of communication) which is furnished hereunder to the Receiving Party or to its\nrepresentatives now or in the future by or on behalf of the Disclosing Party, including, without limitation, all notes, analyses, compilations,\nstudies, interpretations or other documents prepared by each party or its representatives which contain, reflect or are based upon, in whole or in\npart, the information furnished to such party or its representatives pursuant hereto, shall be considered Confidential Information hereunder. The\nparties expressly agree that the existence of this Agreement is deemed to be Confidential Information of the parties.\n2. Except as required by law, regulation or legal process, the Receiving Party agrees to use the Confidential Information solely for evaluating\na potential business relationship with the Disclosing Party (the “Permitted Use”). The Receiving Party further agrees that it shall keep in\nconfidence and not disclose any part of the Confidential Information to any third party, except to its employees or professional advisors with a\nneed to know and who are made aware of and accept the provisions of this Agreement. PSC and Company agree that neither party shall disclose\nthat any discussions have taken place.\n3. Upon receipt of written notice from the Disclosing Party, the Receiving Party shall return all Confidential Information, in written or\ntangible form, to the Disclosing Party, together with any copies thereof, in the possession of the Receiving Party or that of its professional\nadvisors.\n4. The restrictive obligations set forth herein shall not apply to the disclosure or use of any Confidential Information which (a) is or hereafter\nbecomes public knowledge through no fault of the Receiving Party; (b) is known by the Receiving Party on the date of disclosure and is not\nsubject to any restriction on disclosure provided such knowledge was not obtained from a third party with an obligation of non-disclosure to the\nother party; (c) is disclosed to the Receiving Party by a third party who is not subject to any restriction on disclosure by the Disclosing Party; or\n(d) the Receiving Party can demonstrate was developed by it independently without benefit of, or based on, the disclosures made hereunder.\n5. The parties expressly agree that neither the terms or conditions of this Agreement, nor the discussions held by the parties to address the\nfeasibility of a potential business relationship shall be construed as to prevent either party from pursuing similar discussions with third parties in\nsimilar markets or obligate either party to take, continue or forgo any action relating to the above-mentioned discussions. Further, nothing in this\nAgreement shall be construed as prohibiting or restricting either party from independently developing, acquiring, and marketing products,\nservices, and other materials, which are similar to or competitive in any geographic area and in any form with the other party’s product(s) or\nservice(s).\n6. The Disclosing Party reserves all rights and benefits afforded under U.S. and international copyright, patent, trade secret and all other\nintellectual property rights in all Confidential Information furnished by the Disclosing Party to the Receiving Party. The Receiving Party does not\nacquire any intellectual property rights under this Agreement or through any disclosure hereunder, except the limited right to use such\nConfidential Information for the Permitted Use in accordance with this Agreement.\n7. This Agreement shall have no force and effect after two (2) years from the date of the last disclosure of Confidential Information hereunder\nor, if a definitive agreement is entered into between the parties relating to a business relationship, upon execution by the parties of said\nagreement.\n8. Each party acknowledges that Confidential Information is owned solely by the Disclosing Party and that the unauthorized disclosure or use\nof such Confidential Information might cause irreparable harm and significant injury, the degree of which may be difficult to ascertain.\nAccordingly, each party agrees that the Disclosing Party will have the right to seek an immediate injunction enjoining any breach of this\nAgreement, as well as the right to pursue any and all other rights and remedies available.\n9. Each party (a) acknowledges that it is aware that United States federal and state securities laws and regulations restrict persons with\nmaterial non-public information about a company obtained directly or indirectly from that company from purchasing or selling securities of such\ncompany, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such\nperson is likely to purchase or sell securities of such company, and (b) agrees that it will not use, or cause any third person to use, any\ninformation of the other party or its affiliates in contravention of such laws and regulations.\n-2-\n10. During the term of this Agreement neither party shall, without the prior written approval of the other party, solicit the services of or make\nan offer of employment to any person who is or was, as the case may be, an employee or consultant of the other party during the term of this\nAgreement, unless such solicitation or offer results from a general electronic or print media advertisements of or website postings of employment\nopportunities to which any such employee or consultant responds without any other inducement by a party. In case of breach of this section 10,\nthe parties agree to liquidated damages of $50,000 per person.\n11. This Agreement represents the entire agreement between the parties with respect to its subject matter. The invalidity or unenforceability of\nany part of this Agreement for any reason whatsoever shall not affect the validity or enforceability of the remainder. This Agreement shall he\nconstrued and enforced pursuant to the laws of The Commonwealth of Massachusetts, exclusive of its rules governing conflict of law and choice\nof laws.\nIN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have executed this Agreement as of the date first\nwritten above.\nPROGRESS SOFTWARE\nNEON SYSTEMS, INC.\nBy:\n/s/ Evan McDonnell\nBy:\n/s/ Brian D. Helman\nName: Evan McDonnell\nName: Brian D. Helman\nTitle:\nVice President\nTitle:\nChief Financial Officer\n-3-
+0a68451dc19053b04342ce829bcd1321.pdf	effective_date jurisdiction party term	EX-10.2 3 dex102.htm CONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION\nAGREEMENT\nExhibit 10.2\nCONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON -COMPETITION AGREEMENT\nAs an associate of Ann Taylor, Inc. (the “Company”), you will have access to or may develop trade secrets, intellectual property, and other\nconfidential and proprietary information of the Company. Therefore, in consideration of your becoming employed and the payments described in\nParagraph 2 below, and in recognition of the highly competitive nature of the Company’s business, you agree as follows:\n1. Protection of Confidential Information.\n(a) You acknowledge that your employment by the Company involves your obtaining knowledge of Confidential Information (as defined below)\nregarding the business and affairs of the Company.\n(b) Accordingly, you agree that:\n(i) except in compliance with legal process, you will keep secret all Confidential Information and other confidential matters of the Company\nwhich are not otherwise in the public domain and will not disclose them to anyone outside of the Company, wherever located (other than\nto a person to whom disclosure is reasonably necessary or appropriate in connection with the performance of your duties as an employee\nof the Company), either during or after your employment, except with the prior written consent of the Chief Executive Officer or the\nGeneral Counsel of the Company. In the event that you are required to disclose any Confidential Information or other confidential\nmatters of the Company to comply with legal process, you shall provide reasonable advance notice of such legal process to the General\nCounsel of the Company prior to disclosure of any Confidential Information or confidential matters and will not challenge the\nCompany’s standing or ability to seek an order of protection or otherwise seek to prevent or limit disclosure pursuant to such legal\nprocess consistent with applicable law;\n(ii) you will deliver promptly to the Company on termination of your employment or at any other time the Company may so request, all\nmemoranda, notes, records, customer lists, reports and other documents (whether in paper or electronic form and all copies thereof)\nrelating to the business of the Company and all other Company property which you obtained or developed while employed by, or\notherwise serving or acting on behalf of, the Company and which you may then possess or have under your control, whether directly or\nindirectly; and\n(iii) you will not use Confidential Information for your personal benefit or for the benefit of another person or entity.\n(c) For purposes of this Agreement, “Confidential Information” refers to information of the Company (including its affiliated companies) or its\nsuppliers, technology service providers, licensors, clients, and employees, including without limitation information relating to designs,\nproducts, processes, formulas, merchandising, real estate strategy, contract terms, client lists, sourcing information and strategies, technology,\nmarketing plans, advertising, corporate assessments and strategic plans, financial and statistical information, accounting information, pricing\nand business affairs, associate compensation and relative skills and abilities, which have been or are disclosed or available to you and which\nare either designated at the time of disclosure as confidential or which you know or have reason to know are confidential, regardless of the\nform or media in which such information is disclosed.\n2. Non-solicitation of Associates; Non-competition.\n(a) During your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Solicitation Period”), you shall not directly or indirectly, (1) solicit, induce, or attempt to influence any associate at\nthe director level or above to leave his or her employment with the Company or (2) hire or attempt to hire any associate of the Company at the\ndirector level or above, directly or indirectly through a new employer or other person or entity, to join you in the pursuit of any business\nactivity (whether or not such activity involves engaging or participating in a business that competes, or plans to compete, with the Company or\nany of its products). Should you violate this provision, in addition to the other remedies the Company may pursue hereunder, the Non-\nSolicitation Period will be extended by the number of months you were in violation of this Paragraph 2(a) and you shall have no further rights\nunder Paragraphs 2(c), 2(d) and 2(e).\n(b) During your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Competition Period”), you shall not, directly or\nindirectly, without the prior written consent of the Company, work for, be employed, affiliated, engaged or associated with or contribute to the\nefforts (as an employee, owner, stockholder, partner, director, officer, consultant or otherwise) of a business that is, or plans to be, a Competitor\n(as defined herein) of the Company at the time of termination. As used herein, “Competitor” means a business or other entity engaged in the\nmanufacture, design and/or sale of women’s apparel in the United States. Should you violate this provision, in addition to the other remedies\nthe Company may pursue hereunder, the Non-Competition Period will be extended by the number of months you were in violation of this\nParagraph 2(b) and you shall have no further rights under Paragraphs 2(c), 2(d) and 2(e). Notwithstanding the foregoing, passive ownership of\nless than 2% of any class of securities of a public company shall not violate this Section 2(b).\n(c) If you are terminated by the Company without cause (as defined Paragraph 2(f) below, “Cause”) or if you resign from your employment,\nduring the Non-Competition Period the Company shall pay you an amount equivalent to your base salary times 1.5 (“Separation Pay”),\npayable in substantially equal installments in accordance with the Company’s regular payroll cycle, and you will continue to receive all\nbenefits under the Company’s medical, dental and vision benefit plans to the same extent as if you were an employee of the Company. Subject\nto the provisions of the Offer Letter Agreement dated August 6, 2008, if you resign from your employment, the Company may waive the\nprovisions of Paragraph 2(b) or shorten the Non-Competition Period by providing you written notice of the waiver or the shortened Non-\nCompetition Period within 10 business days of your resignation, in which case (i) you will only be bound by the restrictions in Paragraph 2(b)\nabove during the shortened Non-Competition Period (but will continue to remain bound by the restrictions in Paragraphs 1 and 2(a) above),\nand (ii) the Company will have no obligation to pay you Separation Pay or continue your benefits if it waives the provisions of Paragraph 2(b)\nabove or if the Company shortens the Non-Competition Period pursuant to this Paragraph 2(c), the Company will only pay you a pro rata\nportion of the Separation Pay as prorated in proportion to the shortened Non-Competition Period and continue your benefits only during the\nshortened Non-Competition Period.\n(d) If you are terminated by the Company without Cause and have never been a “Section 162(m) Employee” (as defined below), in addition to the\nSeparation Pay you will also be entitled to an amount equal to your targeted bonus under the Management Performance Compensation Plan\n(“AMIP”) (or if the AMIP Plan is not then in effect, under the annual cash bonus plan in effect at the time of the termination of your\nemployment), for the season in which you are terminated (or year in which you are terminated if the bonus plan target for you is then an annual\ntarget). For those associates who in any year have been or become “covered employees” within the meaning of Section 162(m) (“Section\n162(m) Employee”) of the Internal Revenue Code of 1986, as amended (the “Code”), thereafter if you are terminated by the Company without\nCause, you will also be eligible for a bonus under the AMIP Plan (or if the AMIP Plan is not then in effect, under the annual cash bonus plan\nin effect at the time of the termination of your employment), for the season in which you are terminated (or year in which you are terminated if\nthe bonus plan target for you is then an annual target) as if you had remained an active associate for the season or entire year, as the case may\nbe, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the AMIP bonus, if any, payable\nunder this Paragraph 2(d) when bonuses are paid to other Company executives under the AMIP Plan, or the annual cash bonus plan in effect at\nthe time of termination.\n(e) If you are terminated by the Company without Cause, you will also receive payment of all monies earned but not yet vested under the\nRestricted Cash feature of the AMIP Plan, including monies earned or to be earned in the season in which you are terminated (or year in which\nyou are terminated if the restricted cash feature target for you is then an annual target) as if you had remained an active associate for the season\nor entire year, as the case may be, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the\nearned monies in the restricted cash feature of the AMIP Plan, if any, in accordance with the payment schedule for active associates.\n(f) For purposes of this Agreement, “Cause” shall be defined as: (1) conviction for the commission of any act or acts constituting a felony under\nthe laws of the United States or any state thereof; (2) action toward the Company involving dishonesty; (3) refusal to abide by or follow\nreasonable written directions of the CEO, which does not cease within ten business days after such written notice regarding such refusal has\nbeen given to you by the CEO; (4) gross nonfeasance which does not cease within ten business days after written notice regarding such\nnonfeasance has been given to you by the CEO; or (5) failure to comply with the provisions of Paragraphs 1, 2(a) or 2(b) of this Agreement, or\nother willful conduct which is intended to have and does have a material adverse impact on the Company.\n(g) In order to receive Separation Pay and the continued benefits described in Paragraph 2(c) and the payments described in Paragraph 2(d) and\n2(e) above, you will be required to sign a separation agreement that is\nsatisfactory to the Company and includes, but is not limited to, a general waiver and release of all claims and potential claims against the\nCompany and a non-disparagement provision. The separation agreement must be signed within 22 days of your receipt of the agreement.\n(h) To the extent required by Section 409A of the Code, and applicable guidance issued thereunder, payments under Paragraphs 2(c), 2(d) and 2(e)\nthat would otherwise be payable during the six-month period immediately following your termination of employment by the Company shall\ninstead be paid on the first business day after the expiration of such six-month period.\n(i) Notwithstanding any other provision of this Agreement to the contrary, in the event you fail to comply with Paragraphs 1, 2(a) or 2(b) above,\nall of your rights hereunder to any future payments or benefits as described in Paragraphs 2(c), 2(d) and 2(e) above, and all rights with respect\nto any unexercised stock options you may have shall be forfeited; provided that, the foregoing shall not apply if such failure of compliance\nwith Paragraphs 2(a) or 2(b) commences following an Acceleration Event (as defined in the Company’s 2003 Equity Incentive Plan).\n3. If you commit a breach of any of the provisions of Paragraphs 1 and 2 of this Agreement, the Company shall have the right to have such\nprovisions specifically enforced and to seek temporary, preliminary and/or permanent injunctive relief, without limitation to any available\nforms of equitable or other relief to which the Company may be entitled, by any court having jurisdiction without the necessity of posting a\nbond or other security. You hereby acknowledge and agree that any such breach or anticipatory or threatened breach will cause irreparable\ninjury to the Company and that money damages will not provide an adequate remedy to the Company.\n4. Intellectual Property. You acknowledge that all discoveries, innovations, designs and useful ideas that you may originate which relate to or\nwould be useful to the Company’s business, including those developed on your own time, shall vest in the Company on the date they are\noriginated and shall become the exclusive property of the Company. Without additional consideration, you further agree that you will sign all\nnecessary applications with respect to such property which the Company may prepare at its own expense.\n5. Severability & Governing Law. All provisions of this Agreement are severable. If any provision of this Agreement or the application of any\nprovision of the Agreement is determined to be invalid or unenforceable to any extent or for any reason, all other provisions of this Agreement\nwill remain in full force and effect and will continue to be enforceable to the fullest extent permitted by law, except that if the restraints in\nParagraph 2(b) are held invalid or unenforceable in their entirety the Company shall have no obligation to make the payments or provide the\nbenefits specified in Paragraphs 2(c), 2(d) and 2(e). In the event that any provision herein is deemed invalid or unenforceable, you agree that\nthe Court shall modify the provision so as to make it enforceable to the fullest extent permitted by law. This Agreement shall be governed by\nthe laws of the State of New York, applicable to contracts and to be performed therein, without regard to its conflicts of laws principles.\n6. Waiver. The failure of the Company to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the\nsame or of the right of the Company to enforce the same. Waiver by the Company of any breach or default by you (or by any other associate)\nof any term or provision of this Agreement (or any similar agreement between the Company and you or any other associate) shall not operate\nas a waiver of any other breach or default.\n7. Entire Agreement. Except as set forth in the next sentence, this Agreement, together with the Offer Letter Agreement dated August 6, 2008, is\na complete statement of all the terms and arrangements between us with respect to their subject matter and cannot be changed or terminated\norally. In the event a Change in Control (as defined in the AnnTaylor Stores Corporation Special Severance Plan) occurs prior to the\ntermination of your employment, you will be eligible for benefits pursuant to the terms of such Special Severance Plan (as then in effect) and\nthis Agreement shall become null and void, other than the provisions set forth in Paragraph 1.\n8. At-Will Employment. Nothing in this Agreement constitutes a contract of continuing employment. Your employment is and will continue to be\n“at-will” which means it is for no fixed term or duration and either you or the Company may terminate the employment relationship at any\ntime with or without cause and for any reason or no reason, with or without prior notice. Please sign below to indicate your agreement to the\nterms and conditions of this Agreement.\n9. Nothing in this Agreement shall affect or impair any rights you may have to indemnification for attorneys’ fees, costs, and/or expenses\npursuant to applicable statutes, D&O insurance, Certificates of Incorporation and Bylaws of the Company, its affiliates or subsidiaries.\nANN TAYLOR:\nASSOCIATE:\nBY: /s/ Mark G. Morrison\n/s/ Christine Beauchamp\nMark G. Morrison\nChristine Beauchamp\nExecutive Vice President, Human Resources\nPresident, Ann Taylor Stores\nDate: 8/11/08\nDate: 8/7/08	EX-10.2 3 dex102.htm CONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION AGREEMENT Exhibit 10.2\nCONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION AGREEMENT\nAs an associate of Ann Taylor, Inc. (the “Company”), you will have access to or may develop trade secrets, intellectual property, and other\nconfidential and proprietary information of the Company. Therefore, in consideration of your becoming employed and the payments described in Paragraph 2 below, and in recognition of the highly competitive nature of the Company’s business, you agree as follows: 1.\n@)\n(b)\n©\n(a)\n(b)\nProtection of Confidential Information.\nYou acknowledge that your employment by the Company involves your obtaining knowledge of Confidential Information (as defined below)\nregarding the business and affairs of the Company.\nAccordingly, you agree that:\n(i) except in compliance with legal process, you will keep secret all Confidential Information and other confidential matters of the Company\nwhich are not otherwise in the public domain and will not disclose them to anyone outside of the Company, wherever located (other than\nto a person to whom disclosure is reasonably necessary or appropriate in connection with the performance of your duties as an employee\nof the Company), either during or after your employment, except with the prior written consent of the Chief Executive Officer or the\nGeneral Counsel of the Company. In the event that you are required to disclose any Confidential Information or other confidential\nmatters of the Company to comply with legal process, you shall provide reasonable advance notice of such legal process to the General\nCounsel of the Company prior to disclosure of any Confidential Information or confidential matters and will not challenge the\nCompany’s standing or ability to seek an order of protection or otherwise seek to prevent or limit disclosure pursuant to such legal\nprocess consistent with applicable law;\n(i) you will deliver promptly to the Company on termination of your employment or at any other time the Company may so request, all\nmemoranda, notes, records, customer lists, reports and other documents (whether in paper or electronic form and all copies thereof)\nrelating to the business of the Company and all other Company property which you obtained or developed while employed by, or\notherwise serving or acting on behalf of, the Company and which you may then possess or have under your control, whether directly or\nindirectly; and\n(iii) you will not use Confidential Information for your personal benefit or for the benefit of another person or entity.\nFor purposes of this Agreement, “Confidential Information” refers to information of the Company (including its affiliated companies) or its\nsuppliers, technology service providers, licensors, clients, and employees, including without limitation information relating to designs,\nproducts, processes, formulas, merchandising, real estate strategy, contract terms, client lists, sourcing information and strategies, technology,\nmarketing plans, advertising, corporate assessments and strategic plans, financial and statistical information, accounting information, pricing\nand business affairs, associate compensation and relative skills and abilities, which have been or are disclosed or available to you and which\nare either designated at the time of disclosure as confidential or which you know or have reason to know are confidential, regardless of the\nform or media in which such information is disclosed.\nNon-solicitation of Associates; Non-competition.\nDuring your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Solicitation Period”), you shall not directly or indirectly, (1) solicit, induce, or attempt to influence any associate at\nthe director level or above to leave his or her employment with the Company or (2) hire or attempt to hire any associate of the Company at the\ndirector level or above, directly or indirectly through a new employer or other person or entity, to join you in the pursuit of any business\nactivity (whether or not such activity involves engaging or participating in a business that competes, or plans to compete, with the Company or\nany of its products). Should you violate this provision, in addition to the other remedies the Company may pursue hereunder, the Non-\nSolicitation Period will be extended by the number of months you were in violation of this Paragraph 2(a) and you shall have no further rights\nunder Paragraphs 2(c), 2(d) and 2(e).\nDuring your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Competition Period”), you shall not, directly or\n©\n(d)\n(®)\n®\n(8)\nindirectly, without the prior written consent of the Company, work for, be employed, affiliated, engaged or associated with or contribute to the\nefforts (as an employee, owner, stockholder, partner, director, officer, consultant or otherwise) of a business that is, or plans to be, a Competitor\n(as defined herein) of the Company at the time of termination. As used herein, “Competitor” means a business or other entity engaged in the\nmanufacture, design and/or sale of women’s apparel in the United States. Should you violate this provision, in addition to the other remedies\nthe Company may pursue hereunder, the Non-Competition Period will be extended by the number of months you were in violation of this\nParagraph 2(b) and you shall have no further rights under Paragraphs 2(c), 2(d) and 2(e). Notwithstanding the foregoing, passive ownership of\nless than 2% of any class of securities of a public company shall not violate this Section 2(b).\nIf you are terminated by the Company without cause (as defined Paragraph 2(f) below, “Cause”) or if you resign from your employment,\nduring the Non-Competition Period the Company shall pay you an amount equivalent to your base salary times 1.5 (“Separation Pay™),\npayable in substantially equal installments in accordance with the Company’s regular payroll cycle, and you will continue to receive all\nbenefits under the Company’s medical, dental and vision benefit plans to the same extent as if you were an employee of the Company. Subject\nto the provisions of the Offer Letter Agreement dated August 6, 2008, if you resign from your employment, the Company may waive the\nprovisions of Paragraph 2(b) or shorten the Non-Competition Period by providing you written notice of the waiver or the shortened Non-\nCompetition Period within 10 business days of your resignation, in which case (i) you will only be bound by the restrictions in Paragraph 2(b)\nabove during the shortened Non-Competition Period (but will continue to remain bound by the restrictions in Paragraphs 1 and 2(a) above),\nand (ii) the Company will have no obligation to pay you Separation Pay or continue your benefits if it waives the provisions of Paragraph 2(b)\nabove or if the Company shortens the Non-Competition Period pursuant to this Paragraph 2(c), the Company will only pay you a pro rata\nportion of the Separation Pay as prorated in proportion to the shortened Non-Competition Period and continue your benefits only during the\nshortened Non-Competition Period.\nIf you are terminated by the Company without Cause and have never been a “Section 162(m) Employee” (as defined below), in addition to the\nSeparation Pay you will also be entitled to an amount equal to your targeted bonus under the Management Performance Compensation Plan\n(“AMIP”) (or if the AMIP Plan is not then in effect, under the annual cash bonus plan in effect at the time of the termination of your\nemployment), for the season in which you are terminated (or year in which you are terminated if the bonus plan target for you is then an annual\ntarget). For those associates who in any year have been or become “covered employees” within the meaning of Section 162(m) (“Section\n162(m) Employee”) of the Internal Revenue Code of 1986, as amended (the “Code”), thereafter if you are terminated by the Company without\nCause, you will also be eligible for a bonus under the AMIP Plan (or if the AMIP Plan is not then in effect, under the annual cash bonus plan\nin effect at the time of the termination of your employment), for the season in which you are terminated (or year in which you are terminated if\nthe bonus plan target for you is then an annual target) as if you had remained an active associate for the season or entire year, as the case may\nbe, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the AMIP bonus, if any, payable\nunder this Paragraph 2(d) when bonuses are paid to other Company executives under the AMIP Plan, or the annual cash bonus plan in effect at\nthe time of termination.\nIf you are terminated by the Company without Cause, you will also receive payment of all monies earned but not yet vested under the\nRestricted Cash feature of the AMIP Plan, including monies earned or to be earned in the season in which you are terminated (or year in which\nyou are terminated if the restricted cash feature target for you is then an annual target) as if you had remained an active associate for the season\nor entire year, as the case may be, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the\nearned monies in the restricted cash feature of the AMIP Plan, if any, in accordance with the payment schedule for active associates.\nFor purposes of this Agreement, “Cause” shall be defined as: (1) conviction for the commission of any act or acts constituting a felony under\nthe laws of the United States or any state thereof; (2) action toward the Company involving dishonesty; (3) refusal to abide by or follow\nreasonable written directions of the CEO, which does not cease within ten business days after such written notice regarding such refusal has\nbeen given to you by the CEO; (4) gross nonfeasance which does not cease within ten business days after written notice regarding such\nnonfeasance has been given to you by the CEO; or (5) failure to comply with the provisions of Paragraphs 1, 2(a) or 2(b) of this Agreement, or\nother willful conduct which is intended to have and does have a material adverse impact on the Company.\nIn order to receive Separation Pay and the continued benefits described in Paragraph 2(c) and the payments described in Paragraph 2(d) and\n2(e) above, you will be required to sign a separation agreement that is\n(h)\n()\nsatisfactory to the Company and includes, but is not limited to, a general waiver and release of all claims and potential claims against the\nCompany and a non-disparagement provision. The separation agreement must be signed within 22 days of your receipt of the agreement.\nTo the extent required by Section 409A of the Code, and applicable guidance issued thereunder, payments under Paragraphs 2(c), 2(d) and 2(e)\nthat would otherwise be payable during the six-month period immediately following your termination of employment by the Company shall\ninstead be paid on the first business day after the expiration of such six-month period.\nNotwithstanding any other provision of this Agreement to the contrary, in the event you fail to comply with Paragraphs 1, 2(a) or 2(b) above,\nall of your rights hereunder to any future payments or benefits as described in Paragraphs 2(c), 2(d) and 2(e) above, and all rights with respect\nto any unexercised stock options you may have shall be forfeited; provided that, the foregoing shall not apply if such failure of compliance\nwith Paragraphs 2(a) or 2(b) commences following an Acceleration Event (as defined in the Company’s 2003 Equity Incentive Plan).\nIf you commit a breach of any of the provisions of Paragraphs 1 and 2 of this Agreement, the Company shall have the right to have such\nprovisions specifically enforced and to seek temporary, preliminary and/or permanent injunctive relief, without limitation to any available\nforms of equitable or other relief to which the Company may be entitled, by any court having jurisdiction without the necessity of posting a\nbond or other security. You hereby acknowledge and agree that any such breach or anticipatory or threatened breach will cause irreparable\ninjury to the Company and that money damages will not provide an adequate remedy to the Company.\nIntellectual Property. You acknowledge that all discoveries, innovations, designs and useful ideas that you may originate which relate to or\nwould be useful to the Company’s business, including those developed on your own time, shall vest in the Company on the date they are\noriginated and shall become the exclusive property of the Company. Without additional consideration, you further agree that you will sign all\nnecessary applications with respect to such property which the Company may prepare at its own expense.\nSeverability & Governing Law. All provisions of this Agreement are severable. If any provision of this Agreement or the application of any\nprovision of the Agreement is determined to be invalid or unenforceable to any extent or for any reason, all other provisions of this Agreement\nwill remain in full force and effect and will continue to be enforceable to the fullest extent permitted by law, except that if the restraints in\nParagraph 2(b) are held invalid or unenforceable in their entirety the Company shall have no obligation to make the payments or provide the\nbenefits specified in Paragraphs 2(c), 2(d) and 2(e). In the event that any provision herein is deemed invalid or unenforceable, you agree that\nthe Court shall modify the provision so as to make it enforceable to the fullest extent permitted by law. This Agreement shall be governed by\nthe laws of the State of New York, applicable to contracts and to be performed therein, without regard to its conflicts of laws principles.\nWaiver. The failure of the Company to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the\nsame or of the right of the Company to enforce the same. Waiver by the Company of any breach or default by you (or by any other associate)\nof any term or provision of this Agreement (or any similar agreement between the Company and you or any other associate) shall not operate\nas a waiver of any other breach or default.\nEntire Agreement. Except as set forth in the next sentence, this Agreement, together with the Offer Letter Agreement dated August 6, 2008, is\na complete statement of all the terms and arrangements between us with respect to their subject matter and cannot be changed or terminated\norally. In the event a Change in Control (as defined in the AnnTaylor Stores Corporation Special Severance Plan) occurs prior to the\ntermination of your employment, you will be eligible for benefits pursuant to the terms of such Special Severance Plan (as then in effect) and\nthis Agreement shall become null and void, other than the provisions set forth in Paragraph 1.\n \nAt-Will Employment. Nothing in this Agreement constitutes a contract of continuing employment. Your employment is and will continue to be\n“at-will” which means it is for no fixed term or duration and either you or the Company may terminate the employment relationship at any\ntime with or without cause and for any reason or no reason, with or without prior notice. Please sign below to indicate your agreement to the\nterms and conditions of this Agreement.\n9.  Nothing in this Agreement shall affect or impair any rights you may have to indemnification for attorneys’ fees, costs, and/or expenses\npursuant to applicable statutes, D&O insurance, Certificates of Incorporation and Bylaws of the Company, its affiliates or subsidiaries.\nANN TAYLOR: ASSOCIATE:\nBY: /s/Mark G. Morrison /s/ Christine Beauchamp\nMark G. Morrison Christine Beauchamp\nExecutive Vice President, Human Resources President, Ann Taylor Stores\nDate: 8/11/08 Date: 8/7/08	EX-10.2 3 dex102.htm CONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION\nAGREEMENT\nExhibit 10.2\nCONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION AGREEMENT\nAs an associate of Ann Taylor, Inc. (the "Company"), you will have access to or may develop trade secrets, intellectual property, and other\nconfidential and proprietary information of the Company. Therefore, in consideration of your becoming employed and the payments described in\nParagraph 2 below, and in recognition of the highly competitive nature of the Company's business, you agree as follows:\n1.\nProtection of Confidential Information.\n(a)\nYou acknowledge that your employment by the Company involves your obtaining knowledge of Confidential Information (as defined below)\nregarding the business and affairs of the Company.\n(b) Accordingly, you agree that:\n(i)\nexcept in compliance with legal process, you will keep secret all Confidential Information and other confidential matters of the Company\nwhich are not otherwise in the public domain and will not disclose them to anyone outside of the Company, wherever located (other than\nto a person to whom disclosure is reasonably necessary or appropriate in connection with the performance of your duties as an employee\nof the Company), either during or after your employment, except with the prior written consent of the Chief Executive Officer or the\nGeneral Counsel of the Company. In the event that you are required to disclose any Confidential Information or other confidential\nmatters of the Company to comply with legal process, you shall provide reasonable advance notice of such legal process to the General\nCounsel of the Company prior to disclosure of any Confidential Information or confidential matters and will not challenge the\nCompany's standing or ability to seek an order of protection or otherwise seek to prevent or limit disclosure pursuant to such legal\nprocess consistent with applicable law;\n(ii)\nyou will deliver promptly to the Company on termination of your employment or at any other time the Company may so request, all\nmemoranda, notes, records, customer lists, reports and other documents (whether in paper or electronic form and all copies thereof)\nrelating to the business of the Company and all other Company property which you obtained or developed while employed by, or\notherwise serving or acting on behalf of, the Company and which you may then possess or have under your control, whether directly or\nindirectly; and\n(iii) you will not use Confidential Information for your personal benefit or for the benefit of another person or entity.\n(c)\nFor purposes of this Agreement, "Confidentia Information" refers to information of the Company (including its affiliated companies) or\nits\nsuppliers, technology service providers, licensors, clients, and employees, including without limitation information relating to designs,\nproducts, processes, formulas, merchandising, real estate strategy, contract terms, client lists, sourcing information and strategies, technology,\nmarketing plans, advertising, corporate assessments and strategic plans, financial and statistical information, accounting information, pricing\nand business affairs, associate compensation and relative skills and abilities, which have been or are disclosed or available to you and which\nare either designated at the time of disclosure as confidential or which you know or have reason to know are confidential, regardless of the\nform or media in which such information is disclosed.\n2.\nNon-solicitation of Associates; Non-competition.\n(a)\nDuring your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the "Non-Solicitation Period"), you shall not directly or indirectly, (1) solicit, induce, or attempt to influence any associate at\nthe director level or above to leave his or her employment with the Company or (2) hire or attempt to hire any associate of the Company at the\ndirector level or above, directly or indirectly through a new employer or other person or entity, to join you in the pursuit of any business\nactivity (whether or not such activity involves engaging or participating in a business that competes, or plans to compete, with the Company or\nany of its products). Should you violate this provision, in addition to the other remedies the Company may pursue hereunder, the Non-\nSolicitation Period will be extended by the number of months you were in violation of this Paragraph 2(a) and you shall have no further rights\nunder Paragraphs 2(c), 2(d) and 2(e).\n(b)\nDuring your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the "Non-Competition Period"), you shall not, directly or\nindirectly, without the prior written consent of the Company, work for, be employed, affiliated, engaged or associated with or contribute to the\nefforts (as an employee, owner, stockholder, partner, director, officer, consultant or otherwise) of a business that is, or plans to be, a Competitor\n(as defined herein) of the Company at the time of termination. As used herein, "Competitor" means a business or other entity engaged in the\nmanufacture, design and/or sale of women's apparel in the United States. Should you violate this provision, in addition to the other remedies\nthe\nCompany may pursue hereunder, the Non-Competition Period will be extended by the number of months you were in violation of this\nParagraph 2(b) and you shal have no further rights under Paragraphs 2(c), 2(d) and 2(e). Notwithstanding the foregoing, passive ownership of\nless than 2% of any class of securities of a public company shall not violate this Section 2(b).\n(c)\nIf you are terminated by the Company without cause (as defined Paragraph 2(f) below, "Cause") or if you resign from your employment,\nduring the Non-Competition Period the Company shall pay you an amount equivalent to your base salary times 1.5 ("Separation Pay"),\npayable in substantially equal installments in accordance with the Company's regular payroll cycle, and you will continue to receive all\nbenefits under the Company's medical, dental and vision benefit plans to the same extent as if you were an employee of the Company. Subject\nto the provisions of the Offer Letter Agreement dated August 6, 2008, if you resign from your employment, the Company may waive the\nprovisions of Paragraph 2(b) or shorten the Non-Competition Period by providing you written notice of the waiver or the shortened Non-\nCompetition Period within 10 business days of your resignation, in which case (i) you will only be bound by the restrictions in Paragraph 2(b)\nabove during the shortened Non-Competition Period (but will continue to remain bound by the restrictions in Paragraphs 1 and 2(a) above),\nand (ii) the Company will have no obligation to pay you Separation Pay or continue your benefits if it waives the provisions of Paragraph 2(b)\nabove\nor\nif\nthe\nCompany\nshortens\nthe\nNon-Competition\nPeriod\npursuant\nto\nthis\nParagraph\n2(c),\nthe\nCompany\nwill\nonly\npay\nyou\na\npro\nrata\nportion of the Separation Pay as prorated in proportion to the shortened Non-Competition Period and continue your benefits only during the\nshortened Non-Competition Period.\n(d)\nIf you are terminated by the Company without Cause and have never been a "Section 162(m) Employee" (as defined below), in addition to the\nSeparation Pay you will also be entitled to an amount equal to your targeted bonus under the Management Performance Compensation Plan\n("AMIP") (or if the AMIP Plan is not then in effect, under the annual cash bonus plan in effect at the time of the termination of your\nemployment), for the season in which you are terminated (or year in which you are terminated if the bonus plan target for you is then an annual\ntarget). For those associates who in any year have been or become "covered employees" within the meaning of Section 162(m) ("Section\n162(m) Employee") of the Internal Revenue Code of 1986, as amended (the "Code"), thereafter if you are terminated by the Company without\nCause, you will also be eligible for a bonus under the AMIP Plan (or if the AMIP Plan is not then in effect, under the annual cash bonus plan\nin effect at the time of the termination of your employment), for the season in which you are terminated (or year in which you are terminated if\nthe bonus plan target for you is then an annual target) as if you had remained an active associate for the season or entire year, as the case may\nbe, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the AMIP bonus, if any, payable\nunder this Paragraph 2(d) when bonuses are paid to other Company executives under the AMIP Plan, or the annual cash bonus plan in effect at\nthe time of termination.\n(e)\nIf you are terminated by the Company without Cause, you will also receive payment of all monies earned but not yet vested under the\nRestricted Cash feature of the AMIP Plan, including monies earned or to be earned in the season in which you are terminated (or year in which\nyou are terminated if the restricted cash feature target for you is then an annual target) as if you had remained an active associate for the season\nor entire year, as the case may be, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the\nearned monies in the restricted cash feature of the AMIP Plan, if any, in accordance with the payment schedule for active associates.\n(f)\nFor purposes of this Agreement, "Cause" shall be defined as: (1) conviction for the commission of any act or acts constituting a felony under\nthe laws of the United States or any state thereof; (2) action toward the Company involving dishonesty; (3) refusal to abide by or follow\nreasonable\nwritten\ndirections\nof\nthe\nCEO,\nwhich\ndoes\nnot\ncease\nwithin\nten\nbusiness\ndays\nafter\nsuch\nwritten\nnotice\nregarding\nsuch\nrefusal\nhas\nbeen given to you by the CEO; (4) gross nonfeasance which does not cease within ten business days after written notice regarding such\nnonfeasance has been given to you by the CEO; or (5) failure to comply with the provisions of Paragraphs 1, 2(a) or 2(b) of this Agreement, or\nother willful conduct which is intended to have and does have a material adverse impact on the Company.\n(g)\nIn order to receive Separation Pay and the continued benefits described in Paragraph 2(c) and the payments described in Paragraph 2(d) and\n2(e) above, you will be required to sign a separation agreement that is\nsatisfactory to the Company and includes, but is not limited to, a general waiver and release of all claims and potential claims against the\nCompany and a non-disparagement provision. The separation agreement must be signed within 22 days of your receipt of the agreement.\n(h)\nTo the extent required by Section 409A of the Code, and applicable guidance issued thereunder, payments under Paragraphs 2(c), 2(d) and 2(e)\nthat would otherwise be payable during the six-month period immediately following your termination of employment by the Company shall\ninstead be paid on the first business day after the expiration of such six-month period.\n(i)\nNotwithstanding any other provision of this Agreement to the contrary, in the event you fail to comply with Paragraphs 1, 2(a) or 2(b) above,\nall of your rights hereunder to any future payments or benefits as described in Paragraphs 2(c), 2(d) and 2(e) above, and all rights with respect\nto any unexercised stock options you may have shall be forfeited; provided that, the foregoing shall not apply if such failure of compliance\nwith Paragraphs 2(a) or 2(b) commences following an Acceleration Event (as defined in the Company's 2003 Equity Incentive Plan).\n3.\nIf you commit a breach of any of the provisions of Paragraphs 1 and 2 of this Agreement, the Company shall have the right to have such\nprovisions specifically enforced and to seek temporary, preliminary and/or permanent injunctive relief, without limitation to any available\nforms of equitable or other relief to which the Company may be entitled, by any court having jurisdiction without the necessity of posting a\nbond or other security. You hereby acknowledge and agree that any such breach or anticipatory or threatened breach will cause irreparable\ninjury to the Company and that money damages will not provide an adequate remedy to the Company.\n4.\nIntellectual Property.. You acknowledge that all discoveries, innovations, designs and useful ideas that you may originate which relate to or\nwould be useful to the Company's business, including those developed on your own time, shall vest in the Company on the date they are\noriginated and shall become the exclusive property of the Company. Without additional consideration, you further agree that you will sign all\nnecessary applications with respect to such property which the Company may prepare at its own expense.\n5.\nSeverability. & Governing Law. All provisions of this Agreement are severable. If any provision of this Agreement or the application of any\nprovision of the Agreement is determined to be invalid or unenforceable to any extent or for any reason, all other provisions of this Agreement\nwill remain in full force and effect and will continue to be enforceable to the fullest extent permitted by law, except that if the restraints in\nParagraph 2(b) are held invalid or unenforceable in their entirety the Company shall have no obligation to make the payments or provide the\nbenefits specified in Paragraphs 2(c), 2(d) and 2(e). In the event that any provision herein is deemed invalid or unenforceable, you agree that\nthe Court shall modify the provision so as to make it enforceable to the fullest extent permitted by law. This Agreement shall be governed by\nthe laws of the State of New York, applicable to contracts and to be performed therein, without regard to its conflicts of laws principles.\n6.\nWaiver. The failure of the Company to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the\nsame or of the right of the Company to enforce the same. Waiver by the Company of any breach or default by you (or by any other associate)\nof any term or provision of this Agreement (or any similar agreement between the Company and you or any other associate) shall not operate\nas a waiver of any other breach or default.\n7.\nEntire Agreement. Except as set forth in the next sentence, this Agreement, together with the Offer Letter Agreement dated August 6, 2008, is\na complete statement of all the terms and arrangements between us with respect to their subject matter and cannot be changed or terminated\norally. In the event a Change in Control (as defined in the AnnTaylor Stores Corporation Specia Severance Plan) occurs prior to the\ntermination of your employment, you will be eligible for benefits pursuant to the terms of such Special Severance Plan (as then in effect) and\nthis Agreement shall become null and void, other than the provisions set forth in Paragraph 1.\n8.\nAt-Will Employment. Nothing in this Agreement constitutes a contract of continuing employment. Your employment is and will continue to be\n"at-will" which means it is for no fixed term or duration and either you or the Company may terminate the employment relationship at any\ntime with or without cause and for any reason or no reason, with or without prior notice. Please sign below to indicate your agreement to the\nterms and conditions of this Agreement.\n9.\nNothing in this Agreement shall affect or impair any rights you may have to indemnification for attorneys' fees, costs, and/or expenses\npursuant to applicable statutes, D&O insurance, Certificates of Incorporation and Bylaws of the Company, its affiliates or subsidiaries.\nANN TAYLOR:\nASSOCIATE:\nBY: /s/ Mark G. Morrison\n/s/ Christine Beauchamp\nMark G. Morrison\nChristine Beauchamp\nExecutive Vice President, Human Resources\nPresident, Ann Taylor Stores\nDate: 8/11/08\nDate: 8/7/08	EX-10.2 3 dex102.htm CONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION\nAGREEMENT\nExhibit 10.2\nCONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON -COMPETITION AGREEMENT\nAs an associate of Ann Taylor, Inc. (the “Company”), you will have access to or may develop trade secrets, intellectual property, and other\nconfidential and proprietary information of the Company. Therefore, in consideration of your becoming employed and the payments described in\nParagraph 2 below, and in recognition of the highly competitive nature of the Company’s business, you agree as follows:\n1. Protection of Confidential Information.\n(a) You acknowledge that your employment by the Company involves your obtaining knowledge of Confidential Information (as defined below)\nregarding the business and affairs of the Company.\n(b) Accordingly, you agree that:\n(i) except in compliance with legal process, you will keep secret all Confidential Information and other confidential matters of the Company\nwhich are not otherwise in the public domain and will not disclose them to anyone outside of the Company, wherever located (other than\nto a person to whom disclosure is reasonably necessary or appropriate in connection with the performance of your duties as an employee\nof the Company), either during or after your employment, except with the prior written consent of the Chief Executive Officer or the\nGeneral Counsel of the Company. In the event that you are required to disclose any Confidential Information or other confidential\nmatters of the Company to comply with legal process, you shall provide reasonable advance notice of such legal process to the General\nCounsel of the Company prior to disclosure of any Confidential Information or confidential matters and will not challenge the\nCompany’s standing or ability to seek an order of protection or otherwise seek to prevent or limit disclosure pursuant to such legal\nprocess consistent with applicable law;\n(ii) you will deliver promptly to the Company on termination of your employment or at any other time the Company may so request, all\nmemoranda, notes, records, customer lists, reports and other documents (whether in paper or electronic form and all copies thereof)\nrelating to the business of the Company and all other Company property which you obtained or developed while employed by, or\notherwise serving or acting on behalf of, the Company and which you may then possess or have under your control, whether directly or\nindirectly; and\n(iii) you will not use Confidential Information for your personal benefit or for the benefit of another person or entity.\n(c) For purposes of this Agreement, “Confidential Information” refers to information of the Company (including its affiliated companies) or its\nsuppliers, technology service providers, licensors, clients, and employees, including without limitation information relating to designs,\nproducts, processes, formulas, merchandising, real estate strategy, contract terms, client lists, sourcing information and strategies, technology,\nmarketing plans, advertising, corporate assessments and strategic plans, financial and statistical information, accounting information, pricing\nand business affairs, associate compensation and relative skills and abilities, which have been or are disclosed or available to you and which\nare either designated at the time of disclosure as confidential or which you know or have reason to know are confidential, regardless of the\nform or media in which such information is disclosed.\n2. Non-solicitation of Associates; Non-competition.\n(a) During your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Solicitation Period”), you shall not directly or indirectly, (1) solicit, induce, or attempt to influence any associate at\nthe director level or above to leave his or her employment with the Company or (2) hire or attempt to hire any associate of the Company at the\ndirector level or above, directly or indirectly through a new employer or other person or entity, to join you in the pursuit of any business\nactivity (whether or not such activity involves engaging or participating in a business that competes, or plans to compete, with the Company or\nany of its products). Should you violate this provision, in addition to the other remedies the Company may pursue hereunder, the Non-\nSolicitation Period will be extended by the number of months you were in violation of this Paragraph 2(a) and you shall have no further rights\nunder Paragraphs 2(c), 2(d) and 2(e).\n(b) During your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Competition Period”), you shall not, directly or\nindirectly, without the prior written consent of the Company, work for, be employed, affiliated, engaged or associated with or contribute to the\nefforts (as an employee, owner, stockholder, partner, director, officer, consultant or otherwise) of a business that is, or plans to be, a Competitor\n(as defined herein) of the Company at the time of termination. As used herein, “Competitor” means a business or other entity engaged in the\nmanufacture, design and/or sale of women’s apparel in the United States. Should you violate this provision, in addition to the other remedies\nthe Company may pursue hereunder, the Non-Competition Period will be extended by the number of months you were in violation of this\nParagraph 2(b) and you shall have no further rights under Paragraphs 2(c), 2(d) and 2(e). Notwithstanding the foregoing, passive ownership of\nless than 2% of any class of securities of a public company shall not violate this Section 2(b).\n(c) If you are terminated by the Company without cause (as defined Paragraph 2(f) below, “Cause”) or if you resign from your employment,\nduring the Non-Competition Period the Company shall pay you an amount equivalent to your base salary times 1.5 (“Separation Pay”),\npayable in substantially equal installments in accordance with the Company’s regular payroll cycle, and you will continue to receive all\nbenefits under the Company’s medical, dental and vision benefit plans to the same extent as if you were an employee of the Company. Subject\nto the provisions of the Offer Letter Agreement dated August 6, 2008, if you resign from your employment, the Company may waive the\nprovisions of Paragraph 2(b) or shorten the Non-Competition Period by providing you written notice of the waiver or the shortened Non-\nCompetition Period within 10 business days of your resignation, in which case (i) you will only be bound by the restrictions in Paragraph 2(b)\nabove during the shortened Non-Competition Period (but will continue to remain bound by the restrictions in Paragraphs 1 and 2(a) above),\nand (ii) the Company will have no obligation to pay you Separation Pay or continue your benefits if it waives the provisions of Paragraph 2(b)\nabove or if the Company shortens the Non-Competition Period pursuant to this Paragraph 2(c), the Company will only pay you a pro rata\nportion of the Separation Pay as prorated in proportion to the shortened Non-Competition Period and continue your benefits only during the\nshortened Non-Competition Period.\n(d) If you are terminated by the Company without Cause and have never been a “Section 162(m) Employee” (as defined below), in addition to the\nSeparation Pay you will also be entitled to an amount equal to your targeted bonus under the Management Performance Compensation Plan\n(“AMIP”) (or if the AMIP Plan is not then in effect, under the annual cash bonus plan in effect at the time of the termination of your\nemployment), for the season in which you are terminated (or year in which you are terminated if the bonus plan target for you is then an annual\ntarget). For those associates who in any year have been or become “covered employees” within the meaning of Section 162(m) (“Section\n162(m) Employee”) of the Internal Revenue Code of 1986, as amended (the “Code”), thereafter if you are terminated by the Company without\nCause, you will also be eligible for a bonus under the AMIP Plan (or if the AMIP Plan is not then in effect, under the annual cash bonus plan\nin effect at the time of the termination of your employment), for the season in which you are terminated (or year in which you are terminated if\nthe bonus plan target for you is then an annual target) as if you had remained an active associate for the season or entire year, as the case may\nbe, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the AMIP bonus, if any, payable\nunder this Paragraph 2(d) when bonuses are paid to other Company executives under the AMIP Plan, or the annual cash bonus plan in effect at\nthe time of termination.\n(e) If you are terminated by the Company without Cause, you will also receive payment of all monies earned but not yet vested under the\nRestricted Cash feature of the AMIP Plan, including monies earned or to be earned in the season in which you are terminated (or year in which\nyou are terminated if the restricted cash feature target for you is then an annual target) as if you had remained an active associate for the season\nor entire year, as the case may be, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the\nearned monies in the restricted cash feature of the AMIP Plan, if any, in accordance with the payment schedule for active associates.\n(f) For purposes of this Agreement, “Cause” shall be defined as: (1) conviction for the commission of any act or acts constituting a felony under\nthe laws of the United States or any state thereof; (2) action toward the Company involving dishonesty; (3) refusal to abide by or follow\nreasonable written directions of the CEO, which does not cease within ten business days after such written notice regarding such refusal has\nbeen given to you by the CEO; (4) gross nonfeasance which does not cease within ten business days after written notice regarding such\nnonfeasance has been given to you by the CEO; or (5) failure to comply with the provisions of Paragraphs 1, 2(a) or 2(b) of this Agreement, or\nother willful conduct which is intended to have and does have a material adverse impact on the Company.\n(g) In order to receive Separation Pay and the continued benefits described in Paragraph 2(c) and the payments described in Paragraph 2(d) and\n2(e) above, you will be required to sign a separation agreement that is\nsatisfactory to the Company and includes, but is not limited to, a general waiver and release of all claims and potential claims against the\nCompany and a non-disparagement provision. The separation agreement must be signed within 22 days of your receipt of the agreement.\n(h) To the extent required by Section 409A of the Code, and applicable guidance issued thereunder, payments under Paragraphs 2(c), 2(d) and 2(e)\nthat would otherwise be payable during the six-month period immediately following your termination of employment by the Company shall\ninstead be paid on the first business day after the expiration of such six-month period.\n(i) Notwithstanding any other provision of this Agreement to the contrary, in the event you fail to comply with Paragraphs 1, 2(a) or 2(b) above,\nall of your rights hereunder to any future payments or benefits as described in Paragraphs 2(c), 2(d) and 2(e) above, and all rights with respect\nto any unexercised stock options you may have shall be forfeited; provided that, the foregoing shall not apply if such failure of compliance\nwith Paragraphs 2(a) or 2(b) commences following an Acceleration Event (as defined in the Company’s 2003 Equity Incentive Plan).\n3. If you commit a breach of any of the provisions of Paragraphs 1 and 2 of this Agreement, the Company shall have the right to have such\nprovisions specifically enforced and to seek temporary, preliminary and/or permanent injunctive relief, without limitation to any available\nforms of equitable or other relief to which the Company may be entitled, by any court having jurisdiction without the necessity of posting a\nbond or other security. You hereby acknowledge and agree that any such breach or anticipatory or threatened breach will cause irreparable\ninjury to the Company and that money damages will not provide an adequate remedy to the Company.\n4. Intellectual Property. You acknowledge that all discoveries, innovations, designs and useful ideas that you may originate which relate to or\nwould be useful to the Company’s business, including those developed on your own time, shall vest in the Company on the date they are\noriginated and shall become the exclusive property of the Company. Without additional consideration, you further agree that you will sign all\nnecessary applications with respect to such property which the Company may prepare at its own expense.\n5. Severability & Governing Law. All provisions of this Agreement are severable. If any provision of this Agreement or the application of any\nprovision of the Agreement is determined to be invalid or unenforceable to any extent or for any reason, all other provisions of this Agreement\nwill remain in full force and effect and will continue to be enforceable to the fullest extent permitted by law, except that if the restraints in\nParagraph 2(b) are held invalid or unenforceable in their entirety the Company shall have no obligation to make the payments or provide the\nbenefits specified in Paragraphs 2(c), 2(d) and 2(e). In the event that any provision herein is deemed invalid or unenforceable, you agree that\nthe Court shall modify the provision so as to make it enforceable to the fullest extent permitted by law. This Agreement shall be governed by\nthe laws of the State of New York, applicable to contracts and to be performed therein, without regard to its conflicts of laws principles.\n6. Waiver. The failure of the Company to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the\nsame or of the right of the Company to enforce the same. Waiver by the Company of any breach or default by you (or by any other associate)\nof any term or provision of this Agreement (or any similar agreement between the Company and you or any other associate) shall not operate\nas a waiver of any other breach or default.\n7. Entire Agreement. Except as set forth in the next sentence, this Agreement, together with the Offer Letter Agreement dated August 6, 2008, is\na complete statement of all the terms and arrangements between us with respect to their subject matter and cannot be changed or terminated\norally. In the event a Change in Control (as defined in the AnnTaylor Stores Corporation Special Severance Plan) occurs prior to the\ntermination of your employment, you will be eligible for benefits pursuant to the terms of such Special Severance Plan (as then in effect) and\nthis Agreement shall become null and void, other than the provisions set forth in Paragraph 1.\n8. At-Will Employment. Nothing in this Agreement constitutes a contract of continuing employment. Your employment is and will continue to be\n“at-will” which means it is for no fixed term or duration and either you or the Company may terminate the employment relationship at any\ntime with or without cause and for any reason or no reason, with or without prior notice. Please sign below to indicate your agreement to the\nterms and conditions of this Agreement.\n9. Nothing in this Agreement shall affect or impair any rights you may have to indemnification for attorneys’ fees, costs, and/or expenses\npursuant to applicable statutes, D&O insurance, Certificates of Incorporation and Bylaws of the Company, its affiliates or subsidiaries.\nANN TAYLOR:\nASSOCIATE:\nBY: /s/ Mark G. Morrison\n/s/ Christine Beauchamp\nMark G. Morrison\nChristine Beauchamp\nExecutive Vice President, Human Resources\nPresident, Ann Taylor Stores\nDate: 8/11/08\nDate: 8/7/08
+0c3ab1d0c8bb3b1c2f7a64f3ab584368.pdf	effective_date jurisdiction party	Exhibit A\nNON-INTERFERENCE, NON -DISCLOSURE AND\nNON-COMPETITION AGREEMENT\nTHIS NON-INTERFERENCE, NON-DISCLOSURE AND NON -COMPETITION AGREEMENT is made and entered as of January 30, 2006, between ASSET ACCEPTANCE CAPITAL CORP. a Delaware corporation (the\n“Company”), and James C. Lee (“Employee”).\nThe Company and its affiliated entities (“Affiliates”) are engaged in the business of purchasing and collecting defaulted and charged off consumer debt (“Charged Off Accounts”). The Company desires to continue the employment of\nEmployee, on an at-will basis, in the capacity set forth in the Schedule attached hereto and in such capacity makes available to Employee certain proprietary information.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, employment of Employee by the Company on an at-will basis, the eligibility of Employee to participate in the bonus plans offered from\ntime to time by the Company or its Affiliates, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:\n1. Confidentiality and Non-Competition. Employee acknowledges that (i) the agreements and covenants contained herein are essential to protect the Company’s business and assets and (ii) by virtue of his past and continued association\nwith the Company, Employee had access to and has obtained and will continue to have access to and obtain such knowledge, know-how, proprietary information, training and experience, which is known only to the members, officers or\nmanagers of the Company, or other employees, former employees, consultants, or others in a confidential relationship with the Company and its Affiliates, and there is a substantial probability that such knowledge, know-how, proprietary\ninformation, training and experience could be used to the substantial advantage of a competitor of the Company and to the Company’s substantial detriment.\n2. Covenant Not to Compete. Employee agrees that, for the period commencing on the date hereof and ending on (i) the date of termination of employment by the Company without Cause or (ii) one year after termination of employment\nby Employee or termination of employment by the Company for Cause (as defined in the Schedule attached hereto) (as applicable, the “Restricted Period”), Employee shall not, in the Territory (as defined in the Schedule attached hereto),\ndirectly or indirectly, either for himself or for, with or through any other Person, own, manage, operate, control, be employed by, participate in, loan money to or be connected in any manner with, or permit his name to be used by, any\nbusiness which is engaged principally in the business of purchasing Charged Off Accounts (a “Competitive Activity”). Company shall continue to pay the Employee during the Restricted Period and may, at its option, extend the Restricted\nPeriod by continuing to pay Employee his or her regular base salary on the regular periodic payment dates for such additional period not to exceed one year as the Board shall determine, in which event the Restricted Period shall end on\nthe date the last such periodic payment is made to Employee. For purposes of this Agreement, the term “participate” includes any direct or indirect interest, whether as an officer, director, employee, partner, sole proprietor, trustee,\nbeneficiary, agent, representative, independent contractor, consultant, advisor, provider of personal services, creditor, owner (other than by ownership of less than one (1) percent of the stock of a corporation that has a class of securities\nunder the Securities Exchange Act of 1934 (a “Public Company”). Company may, in the exercise of its sole discretion, elect to waive the application of this Section 2 in which case the Restricted Period shall immediately cease and\nCompany’s obligation to pay salary shall terminate. If Company elects to waive application of this Section 2, this election shall not release the Employee from any other obligation contained in this Agreement.\n3. Nondisclosure of Confidential Information. Employee shall not, whether during or after employment, disclose to any person or entity or use any information not in the public domain, in any form, acquired by Employee while he was\nemployed or associated with the Company or, if acquired following the termination of such association, such information which, to Employee’s knowledge, has been acquired, directly or indirectly, from any person or entity owing a duty\nof confidentiality to the Company or its business. By way of illustration but not limitation, Confidential Information may include trade secrets, Charged Off Accounts supplier lists, collection methods, information regarding bulk purchases\nof Charged Off Accounts, employee compensation arrangements, business practices, plans, policies, secret inventions, processes and compilations of information, records and specifications, as well as information related to the\nmanagement policies and plans for the Company. Employee agrees and acknowledges that all of such information, in any form, and copies and extracts thereof are and shall remain the sole and exclusive property of the Company, and\nEmployee shall on request return to the Company the originals and all copies of any such information provided to or acquired by Employee in connection with his association with the Company, and shall return to the Company all files,\ncorrespondence and/or other communications received, maintained and/or originated by Employee during the course of such association. All written or other tangible material containing Confidential Information shall not be removed from\nthe premises of the Company, either in original or reproduced form, under any circumstances whatsoever, without the prior written consent of an authorized officer of the Company, except in the ordinary course of business, and shall be\ndelivered to the Company upon the earlier of a request by the Company or the termination of Employee’s employment with the Company. Employee further agrees to treat all confidential information and know-how of any affiliate, client,\nemployee, customer, contractor, vendor or supplier of the Company in the same manner as the Confidential Information.\n4. No Interference. For the period commencing on the date hereof and ending two years after the date of termination of employment, Employee shall not, without the prior written approval of an authorized officer of the Company,\ndirectly or indirectly through any other Person (i) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the relationship between the Company and its Affiliates and\nany employee thereof, (ii) hire any Person who was an employee of the Company or any of its Affiliates within twelve months after such Person’s employment with the Company and its Affiliates was terminated for any reason,\n(iii) induce or attempt to induce any supplier of Charged Off Accounts or other business relation of the Company or any of its Affiliates to cease doing business with the Company or its Affiliates, or in any way interfere with the\nrelationship between any such supplier or business relation and the Company and its Affiliates or (iv) acquire Charged Off Accounts from any Person that was a seller of Charged Off Accounts to the Company or its Affiliates during the\ntwelve (12) month period immediately preceding the date of termination of Employee’s employment; provided, however that this clause (iv) shall not apply to any competitive bidding situation for Charged Off Accounts which is publicly\nannounced in an industry publication.\n5. Reasonableness of Restrictions. Employee agrees that the covenants set forth in Sections 2, 3 and 4 are reasonable with respect to their duration, geographical area and scope. In the event that any of the provisions of Sections 2, 3 or 4\nrelating to the geographic or temporal scope of the covenants contained therein or the nature of the business or activities restricted thereby shall be declared by a court of competent jurisdiction or arbitral panel to exceed the maximum\nrestrictiveness as to duration, geographical area and/or scope such court or arbitral panel deems enforceable, such provision shall be deemed to be replaced herein by the maximum restriction as to duration, geographical area and/or scope\ndeemed enforceable by such court or arbitral panel in light of all the facts and circumstances applicable thereto.\n2\n6. Remedies. Employee hereby acknowledges that Employee’s covenants and obligations hereunder, are of special, unique, unusual, extraordinary and intellectual character, which gives them a peculiar value, the actual or threatened\nbreach of which shall result in substantial injuries and damages, for which monetary relief may fail to provide an adequate remedy at law. Accordingly, Employee agrees that the Company shall be entitled, in the event of an actual or\nthreatened breach of this Agreement, to seek remedies including but not necessarily limited to (i) temporary or permanent injunctive relief; (ii) specific performance; and (iii) monetary relief, to the extent that monetary relief may\nconstitute an adequate remedy in whole or in part; provided that Employee does not waive the right to oppose relief on the grounds that no breach or threatened breach has occurred. If any proceeding for injunctive relief and/or specific\nperformance is brought by the Company to enforce the terms of this Agreement, Employee shall be deemed to have waived, and shall not assert, any claim or defense that the Company has an adequate remedy at law or that such a remedy\nat law exists. If any action at law or in equity is brought to enforce or interpret the terms of this Agreement, the Company, if it prevails in such action, shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in\naddition to any other relief which a court of competent jurisdiction may order.\n7. Property of the Company. On the termination of employment or whenever requested by the Company, Employee shall immediately deliver to the Company all property in Employee’s possession or under Employee’s control\nbelonging to the Company including (but not limited to) all books, records, files, customer lists, materials or correspondence, in good condition, except for ordinary wear and tear and damage by any cause beyond the reasonable control of\nEmployee.\n8. Successors; Binding Agreement. This Agreement shall inure to the benefit of the Company and its Affiliates, successors and assigns, and shall be binding upon Employee and his legal representatives and successors. Employee may\nnot assign this Agreement or any of Employee’s interests hereunder or delegate any duty or responsibility incurred by Employee hereunder to another. The Company, at any time and without the consent of Employee, may assign or\ntransfer, for such consideration and on such terms and conditions as it may deem appropriate, this Agreement and all of its interests hereunder and no such assignment or transfer by the Company shall in any manner restrict, limit or\nmodify the interests, duties and responsibilities of Employee under this Agreement.\n9. Waiver and Modification. Any waiver, alteration or modification of any of the terms of this Agreement shall be valid only if made in writing and signed by the parties hereto; provided, that any such waiver, alteration or modification\nis consented to on the Company’s behalf by an authorized officer of the Company. No waiver by any of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with respect to any subsequent occurrences or\ntransactions hereunder unless such waiver specifically states that it is to be construed as a continuing waiver.\n10. Severability. Whenever possible each provision and term of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision or term of this Agreement shall be held to be\nprohibited by or wholly invalid under such applicable law, then (i) such provision or term shall be ineffective only to the extent of such provision or invalidity, without invalidating or affecting in any manner whatsoever the remainder of\nsuch provision or term or the remaining provisions or terms of this Agreement and (ii) the invalid or unenforceable term or provision shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to\nexpressing the intention of the invalid or unenforceable term or provision.\n11. Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed effective and given upon actual delivery if presented personally, one business day after the date sent if sent by prepaid\ntelegram, overnight courier service, telex, or by facsimile\n3\ntransmission or five business days after the date sent if sent by certified or registered mail, postage prepaid, return receipt requested, which shall be addressed:\nIn the case of the Company, to:\nAsset Acceptance Capital Corp.\n28405 Van Dyke Avenue\nWarren, Michigan 48093\nAttention: Nathaniel F. Bradley IV\nFacsimile No.: 586-446-7832\nIn the case of Employee, to such Employee’s address as shown in the records of the Company, or, in each case, to such other address as may be designated in writing by any such party.\n12. Captions and Section Headings. Captions and section headings herein are for convenience only, are not a part hereof and shall not be used in construing this Agreement.\n13. Entire Agreement. This Agreement, constitutes the entire understanding and agreement of the parties hereto regarding the subject matter hereof.\n14. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.\n15. Survival. The agreements and covenants made by Employee in and the obligations of Employee in this Agreement shall survive the termination of this Agreement and the employment of Employee. Each such agreement and covenant\nby Employee shall be construed as a covenant and agreement independent of any other provision herein, and the existence of any claim or cause of action by Employee against the Company shall not constitute a defense to the enforcement\nof the provisions of any such covenant or agreement.\n16. Employee Acknowledgement. Employee hereby represents to the Company that:\n(a) Employee has had the opportunity to read, and in fact has read, this Agreement in its entirety and understands each provision of this Agreement;\n(b) Employee’s education, training and experience are such that following the termination of Employee’s employment with the Company, Employee will have the ability to secure other gainful employment by engaging in activities that\nwill not violate any provision of this Agreement;\n(c) Employee understands and agrees that Employee has not been promised any fixed duration of employment; and\n(d) notwithstanding anything herein to the contrary, no provision hereof nor any actions taken or practices, policies or procedures followed by the Company shall be construed to give Employee any vested property right or any expectation\nor guarantee of continued employment.\n17. Governing Law. This Agreement shall be governed in all respects by the laws of the State of Michigan without regard to any laws or regulations relating to choice of laws (whether of the State of Michigan or any other jurisdiction)\nthat would cause the application of the laws of any jurisdiction other than the State of Michigan.\n4\n18. SUBMISSION TO JURISDICTION; VENUE. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY TRANSACTIONS CONTEMPLATED HEREBY SHALL BE BROUGHT IN\nTHE COURTS OF THE STATE OF MICHIGAN OR IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SITTING IN DETROIT, MICHIGAN , AND , BY EXECUTION AND\nDELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HEREBY ACCEPTS FOR HIMSELF, HERSELF OR ITSELF AND IN RESPECT OF HIS, HER OR ITS PROPERTY GENERALLY AND UNCONDITIONALLY ,\nTHE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH OF THE PARTIES IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN\nANY SUCH ACTION OR PROCEEDING BY MAILING COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID , TO SUCH PARTY AT HIS, HER OR ITS ADDRESS AS PROVIDED IN SECTION\n14 HEREOF. NOTHING IN THIS SECTION 18 SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS IN ANY\nOTHER JURISDICTION.\n19. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND\nDIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY\nLITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nASSET ACCEPTANCE CAPITAL CORP.\nBy:\n/s/ Nathaniel F. Bradley IV\nName:\nNathaniel F. Bradley IV\nTitle:\nPresident & CEO\n/s/ James C. Lee\nName:\nJames C. Lee\n5	Exhibit A\nNON-INTERFERENCE, NON-DISCLOSURE AND\nNON-COMPETITION AGREEMENT\nTHIS NON-INTERFER ENCE, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT is made and entered as ofJanuaIy 30, 2006, between ASSET ACCEPTANCE CAPITAL CORP. a DelawaIe corporation (the\n"Company"), andJames C. Lee ("Employee").\nThe Company and its af iliated entities ("Affiliates”) are engaged in the business of purchasing and collecting defaulted and charged off consumer debt ("Charged Off Accounts”). The Company desires to continue the employment of\nEmployee, on an at-will asis, in the capacity set forth in the Schedule attached hereto and in such capacity makes available to Employee certain proprietary information\nNOW, THERE F0 RE, in consideration of the mutual covenants and agreements contained herein, employment of Employee by the Company on an at-will basis, the eligibility of Employee to participate in the bonus plans offered from\ntime to time by the Com any or its Affiliates, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:\n1. Confidentiality and Non-C ompetition. Employee acknowledges that (i) the agreements and covenants conmined herein are essential to protect the Company's business and assets and (ii) by virtue of his past and continued association\nwith the Company, Emp oyee had access to and has obtained and will continue to have access to and obtain such knowledge, know-how, proprietary information, training and experience, which is known only to the members, officers or\nmanagers of the Compan , or other employees, former employees, consultants, or others in a confidential relationship with the Company and its A filiates, and there is a substantial probability that such knowledge, know-how, proprietary\ninformation, training an experience could be used to the substantial advantage of a competitor of the Company and to the Company’s substantial etriment.\n \n2. Covenant Not to Compete. Employee agrees that, for the period commencing on the date hereof and ending on (i) the date of termination of employment by the Company without Cause or (ii) one year after termination of employment\nby Employee or termination of employment by the Company for Cause (as defined in the Schedule attached hereto) (as applicable, the "Restricted ’eriod”), Employee shall not, in the Territory (as defined in the Schedule attached hereto),\ndirectly or indirectly, either for himself or for, with or through any other Person, own, manage, operate, control, be employed by, participate in, loan money to or be connected in any manner with, or permit his name to be used by, any\nbusiness which is engaged principally in the business of purchasing Charged Off Accounts (a ”Competitive Activity"). Company shall continue to ay the Employee during the Restricted Period and may, at its option, extend the Restricted\nPeriod by continuing to pay Employee his or her regular base salary on the regular periodic payment dates for such additional period not to exceed one year as the Board shall determine, in which event the Restricted Period shall end on\nthe date the last such periodic payment is made to Employee. For purposes of this Agreement, the term ”participate" includes any direct or indirect interest, whether as an officer, director, employee, partner, sole proprietor, trustee,\nbeneficiary, agent, represenmtive, independent contractor, consulmnt, advisor, provider of personal services, creditor, owner (other than by owners tip of less than one (1) percent of the stock of a corporation that has a class of securities\nunder the Securities Exchange Act of 1934 (a "Public Company"). Company may, in the exercise of its sole discretion, elect to waive the application of this Section 2 in which case the Restricted Period shall immediately cease and\nCompany’s obligation to pay salary shall terminate If Company elects to waive application of this Section 2, this election shall not release the Em\n \nloyee from any other obligation conmined in this Agreement\n—\n3. Nondisclosure of Confidential Information. Employee shall not, whether during or after employment, disclose to any person or entity or use any information not in the public domain, in any form, acquired by Employee while he was\nemployed or associated with the Company or, if acquired following the termination of such association, such information which, to Employee’s knowledge, has been acquired, directly orindirectiy, from any person or entity owing a duty\nof confidentiality to the Company or its business By way of illustration but not limitation, Confidential Information may include trade secrets, Charged Off Accounts supplier lists, collection methods, information regarding bulk purchases\nof Charged Off Accounts, employee compensation arrangements, business practices, plans, policies, secret inventions, processes and compilations of information, records and specifications, as well as information related to the\nmanagement policies and plans for the Company. Employee agrees and acknowledges that all of such information, in any form, and copies and extracts thereof are and shall remain the sole and exclusive property of the Company, and\nEmployee shall on request return to the Company the originals and all copies of any such information provided to or acquired by Employee in connection with his association with the Company, and shall return to the Company all files,\ncorrespondence and/or other communications received, maintained and/or originated by Employee during the course of such association All written or other tangible material containing Confidential Information shall not be removed from\nthe premises of the Company, either in original or reproduced form, under any circumstances whatsoever, without the prior written consent of an authorized officer of the Company, except in the ordinary course of business, and shall be\ndelivered to the Company upon the earlier of a request by the Company or the termination of Employee’s employment with the Company. Employee further agrees to tieat all confidential information and know-how of any affiliate, client,\nemployee, customer, contractor, vendor or supplier of the Company in the same manner as the Confidential Information\n4. No Interference. For the period commencing on the date hereof and ending two years after the date of termination of employment, Employee shall not, without the prior written approval of an authorized officer of the Company,\ndirectly or indirectly through any other Person (1) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the relationship between the Company and its Affiliates and\nany employee thereof, (ii) hire any Person who was an employee of the Company or any of its Affiliates within twelve months after such Person's employment with the Company and its Affiliates was terminated for any reason,\n(iii) induce or attempt to induce any supplier of Charged Off Accounts or other business relation of the Company or any of its Affiliates to cease doing business with the Company or its Affiliates, or in any way interfere with the\nrelationship between any such supplier or business relation and the Company and its Affiliates or (iv) acquire Charged Off Accounts from any Person that was a seller of Charged Off Accounts to the Company or its Affiliates during the\ntwelve (12) month period immediately preceding the date of termination of Employee’s employment,- provided, however that this clause (iv) shall not apply to any competitive bidding situation for Charged Off Accounts which is publicly\nannounced in an industry publication.\n5. Reasonableness of Restrictions Employee agrees that the covenants set forth in Sections 2, 3 and 4 are reasonable with respect to their duration, geographical area and scope. In the event that any of the provisions of Sections 2, 3 or4\nrelating to the geographic or temporal scope of the covenants conmined therein or the nature of the business or activities restricted thereby shall be declared by a court of competent jurisdiction or arbitral panel to exceed the maximum\nrestrictiveness as to duration, geographical area and/or scope such court or arbitral panel deems enforceable, such provision shall be deemed to be replaced herein by the maximum restriction as to duration, geographical area andjor scope\ndeemed enforceable by such court or arbitral panel in light of all the facts and circumstances applicable thereto.\n—\n6. Remedies. Employee hereby acknowledges that Employee’s covenants and obligations hereunder, are of special, unique, unusual, extraordinary and intellectual character, which gives them a peculiar value, the actual or threatened\nbreach of which shall result in substantial injuries and damages, for which monemry relief may fail to provide an adequate remedy at law. Accordingly, Employee agrees that the Company shall be entitled, in the event of an actual or\nthreatened breach of this Agreement, to seek remedies including but not necessarily limited to (i) temporary or permanent injunctive relief; (ii) specific performance; and (iii) monetary relief, to the extent that monemry relief may\nconstitute an adequate remedy in whole or in part; provided that Employee does not waive the right to oppose relief on the grounds that no breach or threatened breach has occurred. If any proceeding for injunctive relief andjor specific\nperformance is brought by the Company to enforce the terms of this Agreement, Employee shall be deemed to have waived, and shall not assert, any claim or defense that the Company has an adequate remedy at law or that such a remedy\nat law exists. If any action at law or in equity is brought to enforce or interpret the terms of this Agreement, the Company, if it prevails in such action, shall be entitled to reasonable attomeys' fees, costs and necessary disbursements in\naddition to any other relief which a court of competent jurisdiction may order.\n7. Property of the Company. On the termination of employment or whenever requested by the Company, Employee shall immediately deliver to the Company all property in Employee's possession or under Employee’s control\nbelonging to the Company including (but not limited to) all books, records, files, customer lists, materials or correspondence, in good condition, except for ordinary wear and tear and damage by any cause beyond the reasonable control of\nEmployee.\n8. Successors; BindingAgreement. This Agreement shall inure to the benefit of the Company and its Affiliates, successors and assigns, and shall be binding upon Employee and his legal representatives and successors. Employee may\nnot assign this Agreement or any of Employee's interests hereunder or delegate any duty or responsibility incurred by Employee hereunderto another. The Company, at any time and without the consent of Employee, may assign or\ntransfer, for such consideration and on such terms and conditions as it may deem appropriate, this Agreement and all of its interests hereunder and no such assignment or transfer by the Company shall in any manner restrict, limit or\nmodify the interests, duties and responsibilities of Employee under this Agreement.\n9. Waiver and Modification. Any waiver, alteration or modification of any of the terms of this Agreement shall be valid only if made in writing and signed by the parties hereto; provided, that any such waiver, alteration or modification\nis cemented to on the Company’s behalf by an authorized officer of the Company. No waiver by any of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with respect to any subsequent occurrences or\ntransactions hereunder unless such waiver specifically states that it is to be construed as a continuing waiver.\n10. Severability. Whenever possible each provision and term of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision or term of this Agreement shall be held to be\nprohibited by or wholly invalid under such applicable law, then (i) such provision or term shall be ineffective only to the extent of such provision orinvalidity, without invalidating or affecting in any manner whatsoever the remainder of\nsuch provision or term or the remaining provisions or terms of this Agreement and (ii) the invalid or unenforceable term or provision shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to\nexpressing the intention of the invalid or unenforceable term or provision.\n11. Notices All notices and other communications under this Agreement shall be in writing and shall be deemed effective and given upon actual delivery if presented personally, one business day after the date sent if sent by prepaid\ntelegram, overnight courier service, telex, or by facsimile\ntransmission or five business days after the date sent if sent by certified or registered mail, postage prepaid, retum receipt requested, which shall be addressed:\nIn the case of the Company, to:\nA sset Acceptance Capital Corp,\n28405 Van Dyke Avenue\nWarren, Michigan 48093\nAttention: Nathaniel Fr Bradley IV\nFacsimile Nor: 586-446-7832\nIn the case of Employee, to such Employee’s address as shown in the records of the Company, or, in each case, to such other address as may be designated in writing by any such party,\n12‘ Captions and Section Headings. Captions and section headings herein are for convenience only, are not a part hereof and shall not be used in construing this Agreement\n13‘ Entire Agreement. This A greement, constitutes the entire undersmnding and agreement of the parties hereto regarding the subject matter hereof r\n14‘ Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument\n15‘ Survival. The agreements and covenants made by Employee in and the obligations of Employee in this Agreement shall survive the termination of this Agreement and the employment of Employee, Each such agreement and covenant\nby Employee shall be construed as a covenant and agreement independent of any other provision herein, and the existence of any claim or cause of action by Employee against the Company shall not constitute a defense to the enforcement\nof the provisions of any such covenant or agreement.\n16‘ Employee Acknowledgement. Employee hereby represents to the Company that:\n(a) Employee has had the opportunity to read, and in fact has read, this Agreement in its entirety and understands each provision of this Agreement;\n(b) Employee’s education, training and experience are such that following the termination of Employee’s employment with the Company, Employee will have the ability to secure other gainful employment by engaging in activities that\nwill not violate any provision of this Agreement;\n(c) Employee understands and agrees that Employee has not been promised any fixed duration of employment; and\n(d) notwithstanding anything herein to the contrary, no provision hereof nor any actions taken or practices, policies or procedures followed by the Company shall be construed to give Employee any vested property right or any expectation\nor guarantee of continued employment\n17‘ Governing Law. This Agreement shall be governed in all respects by the laws of the Smte of Michigan without regard to any laws or regulations relating to choice of laws (whether of the State of Michigan or any other jurisdiction)\nthat would cause the application of the laws of any jurisdiction other than the Smte of Michigan,\n—\n18. SUBMISSION T0 JURISDICTION; VENUE. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY TRANSACTIONS CONTEMPLATED HEREBY SHALL BE BROUGHT IN\nTHE COURTS OF THE STATE OF MICHIGAN OR IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SITTING IN DETROIT, MICHIGAN, AND, BY EXECUTION AND\nDELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HEREBY ACCEPTS FOR HIMSELF, HERSELF OR ITSELF AND IN RESPECT OF HIS, HER OR ITS PROPERTY GENERALLY AND UNCONDITIONALLY,\nTHE NON-EXCLUSIVEJURISDICTION OF THE AFORESAID COURTS. EACH OF THE PARTIES IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN\nANY SUCH ACTION OR PROCEEDING BY MAILING COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT HIS, HER OR ITS ADDRESS AS PROVIDED IN SECTION\n14 HEREOF. NOTHING IN THIS SECTION 18 SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS IN ANY\nOTHERJURISDICTION.\n19. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND\nDIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OFANY\nLITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.\nIN WITNESS WHEREO F, the pam'es hereto have executed this Agreement as of the day and year fiIst above written.\nASSET ACCEPTANCE CAPITAL CORP.\nBy: Isl Nathaniel F. BIadley IV\nName: Nathaniel F. BIadley IV\nTitle: P1esident& CEO\nls/James C. Lee\nName: James C. Lee	Exhibit A\nNON-INTERFERENCE, NON-DISCLOSURE AND\nNON-COMPETITION AGREEMENT\nTHIS NON-INTERFERENCE, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT is made and entered as of January 30, 2006 between ASSET ACCEPTANCE CAPITAL CORP a Delaware corporation (the\n"Company"), and James C. Lee ("Employee")\nThe Company and its affiliated entities ("Affiliates") are engaged in the business of purchasing and collecting defaulted and charged off consumer debt ("Charged Off Accounts"). The Company desires to continue the employment of\nEmployee, on an t-wil basis, in the capacity set forth in the Schedule attached hereto and in such capacity makes available to Employee certain proprietary information.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, employment of Employee by the Company on an t-will basis, the eligibility of Employee to participate in the bonus plans offered from\ntime to time by the Company or its Affiliates, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:\n1. Confidentiality and on-Competition. Employee acknowledges that (i) the agreements and covenants contained herein are essential to protect the Company's business and assets and (ii) by virtue of his past and continued association\nwith the Company, Employee had access to and has obtained and will continue to have access to and obtain such knowledge, know-how, proprietary information, training and experience, which is known only to the members, officers or\nmanagers of the Company, or other employees, former employees, consultants, or others in a confidential relationship with the Company and its Affiliates, and there is a substantial probability that such knowledge, know-how,\nproprietary\ninformation, training and experience could be used to the substantial advantage of a competitor of the Company and to the Company's substantial detriment.\n2. Covenant Not to Compete. Employee agrees that for the period commencing on the date hereof and ending on (i) the date of termination of employment by the Company without Cause or (ii) one year after termination of employment\nby\nEmployee or termination of employment by the Company for Cause (as defined in the Schedule attached hereto) (as applicable, the "Restricted Period"), Employee shall not, in the Territory (as defined in the Schedule attached hereto),\ndirectly or indirectly, either for himself or for with or through any other Person, own, manage, operate, control, be employed by, participate in, loan money to or be connected in any manner with, or permit his name to be used by, any\nbusiness which is engaged principally in the business of purchasing Charged Off Accounts (a "Competitive Activity"). Company shall continue to pay the Employee during the Restricted Period and may, at its option, extend the Restricted\nPeriod by continuing to pay Employee his or her regular base salary on the regular periodic payment dates for such additional period not to exceed one year as the Board shall determine, in which event the Restricted Period shall end on\nthe date the last such periodic payment is made to Employee For purposes of this Agreement, the term "participate" includes any direct or indirect interest, whether as an officer, director, employee, partner, sole proprietor, trustee,\nbeneficiary, agent, representative independent contractor, consultant, advisor, provider of personal services, creditor, owner (other than by ownership of less than one (1) percent of the stock of a corporation that has a class of securities\nunder the Securities Exchange Act of 1934 (a "Public Company"). Company may, in the exercise of its sole discretion, elect to waive the application of this Section 2 in which case the Restricted Period shall immediately cease and\nCompany's obligation to pay salary shall terminate. If Company elects to waive application of this Section 2, this election shall not release the Employee from any other obligation contained in this Agreement.\n3. Nondisclosure of Confidential Information. Employee shall not whether during or after employment, disclose to any person or entity or use any information not in the public domain, in any form, acquired by Employee while he was\nemployed or associated with the Company or, if acquired following the termination of such association, such information which, to Employee's knowledge, has been acquired directly or indirectly, from any person or entity owing a duty\nof confidentiality to the Company or its business By way of illustration but not limitation, Confidential Information may include trade secrets, Charged Off ccounts supplier lists, collection methods information regarding bulk purchases\nof Charged Off Accounts, employee compensation arrangements, business practices, plans, policies, secret inventions, processes and compilations of information, records and specifications, as well as information related to the\nmanagement policies and plans for the Company. Employee agrees and acknowledges that all of such information, in any form, and copies and extracts thereof are and shall remain the sole and exclusive property of the Company, and\nEmployee shall on request retum to the Company the originals and all copies of any such information provided to or acquired by Employee in connection with his association with the Company, and shall return to the Company all files,\ncorrespondence and/or other communications received, maintained and/or originated by Employee during the course of such association. All written or other tangible material containing Confidential Information shall not be removed from\nthe premises of the Company, either in origina or reproduced form under any circumstances whatsoever, without the prior written consent of an authorized officer of the Company, except in the ordinary course of business, and shall\nbe\ndelivered to the Company upon the earlier of a request by the Company or the termination of Employee's employment with the Company. Employee further agrees to treat all confidential information and know-how of any affiliate, client,\nemployee, customer, contractor, vendor or supplier of the Company in the same manner as the Confidential Information.\n4.\nNo Interference. For the period commencing on the date hereof and ending two years after the date of termination of employment, Employee shall not, without the prior written approval of an authorized officer of the Company,\ndirectly or indirectly through any other Person (i) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the relationship between the Company and its Affiliates and\nany employee thereof, (ii) hire any Person who was an employee of the Company or any of its Affiliates within twelve months after such Person's employment with the Company and its Affiliates was terminated for any reason,\n(iii) induce or attempt to induce any supplier of Charged Off Accounts or other business relation of the Company or any of its Affiliates to cease doing business with the Company or its Affiliates, or in any way interfere with\nthe\nrelationship between any such supplier or business relation and the Company and its Affiliates or (iv) acquire Charged Off Accounts from any Person that was a seller of Charged Off Accounts to the Company or its A ffiliates during the\ntwelve (12) month period immediately preceding the date of termination of Employee's employment; provided, however that this clause (iv) shall not apply to any competitive bidding situation for Charged Off Accounts which is publicly\nannounced in an industry publication\n5. Reasonableness of Restrictions. Employee agrees that the covenants set forth in Sections 2, 3 and 4 are reasonable with respect to their duration, geographical area and scope. In the event that any of the provisions of Sections 2, or 4\nrelating to the geographic or temporal scope of the covenants contained therein or the nature of the business or activities restricted thereby shall be declared by a court of competent jurisdiction or arbitral panel to exceed the maximum\nrestrictiveness as to duration, geographical area and/or scope such court or arbitral pane deems enforceable, such provision shall be deemed to be replaced herein by the maximum restriction as to duration, geographical area and/or scope\ndeemed enforceable by such court or arbitral panel in light of all the facts and circumstances applicable thereto.\n2\n6. Remedies. Employee hereby acknowledges that Employee's covenants and obligations hereunder, are of special, unique, unusual, extraordinary and intellectual character which gives them a peculiar value, the actual or threatened\nbreach of which shall result in substantial injuries and damages, for which monetary relief may fail to provide an adequate remedy at law. Accordingly, Employee agrees that the Company shall be entitled in the event of an actual or\nthreatened breach of this Agreement, to seek remedies including but not necessarily limited to (i) temporary or permanent injunctive relief; (ii) specific performance and (iii) monetary relief, to the extent that monetary relief may\nconstitute an adequate remedy in whole or in part provided that Employee does not waive the right to oppose relief on the grounds that no breach or threatened breach has occurred. If any proceeding for injunctive relief and/or specific\nperformance is brought by the Company to enforce the terms of this A greement, Employee shall be deemed to have waived, and shall not assert any claim or defense that the Company has an adequate remedy at law or that such a remedy\nat law exists If any action at law or in equity is brought to enforce or interpret the terms of this Agreement the Company, if it prevails in such action, shall be entitled to reasonable attomeys' fees, costs and necessary disbursements in\naddition to any other relief which a court of competent jurisdiction may order.\n7. Property of the Company. On the termination of employment or whenever requested by the Company, Employee shall immediately deliver to the Company all property in Employee's possession or under Employee's control\nbelonging to the Company including (but not limited to) all books, records, files, customer lists, materials or corespondence, in good condition, except for ordinary wear and tear and damage by any cause beyond the reasonable control of\nEmployee.\n8. Successors; Binding greement. This Agreement shall inure to the benefit of the Company and its Affiliates, successors and assigns, and shall be binding upon Employee and his legal representatives and successors. Employee may\nnot assign this Agreement or any of Employee's interests hereunder or delegate any duty or responsibility incurred by Employee hereunder to another. The Company, at any time and without the consent of Employee, may assign or\ntransfer, for such consideration and on such terms and conditions as it may deem appropriate, this Agreement and all of its interests hereunder and no such assignment or transfer by the Company shall in any manner restrict, limi or\nmodify the interests, duties and responsibilities of Employee under this Agreement.\n9. Waiver and Modification. Any waiver, alteration or modification of any of the terms of this Agreement shall be valid only if made in writing and signed by the parties hereto; provided that any such waiver, alteration or modification\nis consented to on the Company's behalf by an authorized officer of the Company. No waiver by any of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with respect to any subsequent occurrences or\ntransactions hereunder unless such waiver specifically states that it is to be construed as a continuing waiver.\n10. Severability. w henever possible each provision and term of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law but if any provision or term of this Agreement shall be held to\nbe\nprohibited by or wholly invalid under such applicable law, then (i) such provision or term shall be ineffective only to the extent of such provision or invalidity, without invalidating or affecting in any manner whatsoever the remainder of\nsuch provision or term or the remaining provisions or terms of this Agreement and (ii) the invalid or unenforceable term or provision shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to\nexpressing the intention of the invalid or unenforceable term or provision.\n11. Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed effective and given upon actua delivery if presented personally, one business day after the date sent if sent by prepaid\ntelegram, ovemight courier service, telex, or by facsimile\n3\ntransmission or five business days after the date sent if sent b certified or registered mail, postage prepaid, return receipt requested which shall be addressed:\nIn the case of the Company to:\nAsset Acceptance Capita Corp.\n28405 Van Dyke Avenue\nWarren, Michigan 48093\nAttention: Nathaniel F. Bradley IV\nFacsimile No.: 586-446-7832\nIn\nthe case of Employee, to such Employee's address as shown in the records of the Company, or, in each case, to such other address as may be designated in writing by any such party.\n12. Captions and Section Headings. Captions and section headings herein are for convenience only, are not a part hereof and shal not be used in construing this Agreement.\n13. Entire Agreement. This greement, constitutes the entire understanding and agreement of the parties hereto regarding the subject matter hereof.\n14. Counterparts This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument\n15. Survival. The agreements and covenants made by Employee in and the obligations of Employee in this Agreement shall survive the termination of this Agreement and the employment of Employee. Each such agreement and covenant\nby Employee shall be construed as a covenant and agreement independent of any other provision herein, and the existence of any claim or cause of action by Employee against the Company shall not constitute a defense to the enforcement\nof the provisions of any such covenant or agreement.\n16 Employee knowledgement Employee hereby represents to the Company that:\n(a) Employee has had the opportunity to read, and in fact has read, this Agreement in its entirety and understands each provision of this Agreement;\n(b) Employee's education, training and experience are such that following the termination of Employee's employment with the Company, Employee will have the ability to secure other gainful employment by engaging in activities that\nwill not violate any provision of this Agreement;\n(c) Employee understands and agrees that Employee has not been promised any fixed duration of employment and\n(d) notwithstanding anything herein to the contrary, no provision hereof nor any actions taken or practices policies or procedures followed by the Company shall be construed to give Employee any vested property right or any expectation\nor guarantee of continued employment.\n17. Governing Law. This Agreement shall be govemed in all respects by the laws of the State of Michigan without regard to any laws or regulations relating to choice of laws (whether of the State of Michigan or any other jurisdiction)\nthat would cause the application of the laws of any jurisdiction other than the State of Michigan\n4\n18. SUBMISSION TO JURISDICTION; VENUE. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY TRANSACTIONS CONTEMPLATED HEREBY SHALL BE BROUGHT IN\nTHE COURTS OF THE STATE OF MICHIGAN OR IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SITTING IN DETROIT, MICHIGAN, AND, BY EXECUTION AND\nDELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HEREBY ACCEPTS FOR HIMSELF, HERSELF OR ITSELF AND IN RESPECT OF HIS, HER OR ITS PROPERTY GENERALLY AND UNCONDITIONALLY,\nTHE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS EACH OF THE PARTIES IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN\nANY SUCH ACTION OR PROCEEDING BY MAILING COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PARTY AT HIS, HER OR ITS ADDRESS AS PROVIDED IN SECTION\n14 HEREOF. NOTHING IN THIS SECTION 18 SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS IN ANY\nOTHER JURISDICTION.\n19. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND\nDIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY\nLITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nASSET ACCEPTANCE CAPITAL CORP.\nBy:\n/s/ Nathaniel F. Bradley IV\nName:\nNathaniel F. Bradley IV\nTitle:\nPresident & CEO\n/s/ James C. Lee\nName:\nJames C. Lee\n5	Exhibit A\nNON-INTERFERENCE, NON -DISCLOSURE AND\nNON-COMPETITION AGREEMENT\nTHIS NON-INTERFERENCE, NON-DISCLOSURE AND NON -COMPETITION AGREEMENT is made and entered as of January 30, 2006, between ASSET ACCEPTANCE CAPITAL CORP. a Delaware corporation (the\n“Company”), and James C. Lee (“Employee”).\nThe Company and its affiliated entities (“Affiliates”) are engaged in the business of purchasing and collecting defaulted and charged off consumer debt (“Charged Off Accounts”). The Company desires to continue the employment of\nEmployee, on an at-will basis, in the capacity set forth in the Schedule attached hereto and in such capacity makes available to Employee certain proprietary information.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, employment of Employee by the Company on an at-will basis, the eligibility of Employee to participate in the bonus plans offered from\ntime to time by the Company or its Affiliates, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:\n1. Confidentiality and Non-Competition. Employee acknowledges that (i) the agreements and covenants contained herein are essential to protect the Company’s business and assets and (ii) by virtue of his past and continued association\nwith the Company, Employee had access to and has obtained and will continue to have access to and obtain such knowledge, know-how, proprietary information, training and experience, which is known only to the members, officers or\nmanagers of the Company, or other employees, former employees, consultants, or others in a confidential relationship with the Company and its Affiliates, and there is a substantial probability that such knowledge, know-how, proprietary\ninformation, training and experience could be used to the substantial advantage of a competitor of the Company and to the Company’s substantial detriment.\n2. Covenant Not to Compete. Employee agrees that, for the period commencing on the date hereof and ending on (i) the date of termination of employment by the Company without Cause or (ii) one year after termination of employment\nby Employee or termination of employment by the Company for Cause (as defined in the Schedule attached hereto) (as applicable, the “Restricted Period”), Employee shall not, in the Territory (as defined in the Schedule attached hereto),\ndirectly or indirectly, either for himself or for, with or through any other Person, own, manage, operate, control, be employed by, participate in, loan money to or be connected in any manner with, or permit his name to be used by, any\nbusiness which is engaged principally in the business of purchasing Charged Off Accounts (a “Competitive Activity”). Company shall continue to pay the Employee during the Restricted Period and may, at its option, extend the Restricted\nPeriod by continuing to pay Employee his or her regular base salary on the regular periodic payment dates for such additional period not to exceed one year as the Board shall determine, in which event the Restricted Period shall end on\nthe date the last such periodic payment is made to Employee. For purposes of this Agreement, the term “participate” includes any direct or indirect interest, whether as an officer, director, employee, partner, sole proprietor, trustee,\nbeneficiary, agent, representative, independent contractor, consultant, advisor, provider of personal services, creditor, owner (other than by ownership of less than one (1) percent of the stock of a corporation that has a class of securities\nunder the Securities Exchange Act of 1934 (a “Public Company”). Company may, in the exercise of its sole discretion, elect to waive the application of this Section 2 in which case the Restricted Period shall immediately cease and\nCompany’s obligation to pay salary shall terminate. If Company elects to waive application of this Section 2, this election shall not release the Employee from any other obligation contained in this Agreement.\n3. Nondisclosure of Confidential Information. Employee shall not, whether during or after employment, disclose to any person or entity or use any information not in the public domain, in any form, acquired by Employee while he was\nemployed or associated with the Company or, if acquired following the termination of such association, such information which, to Employee’s knowledge, has been acquired, directly or indirectly, from any person or entity owing a duty\nof confidentiality to the Company or its business. By way of illustration but not limitation, Confidential Information may include trade secrets, Charged Off Accounts supplier lists, collection methods, information regarding bulk purchases\nof Charged Off Accounts, employee compensation arrangements, business practices, plans, policies, secret inventions, processes and compilations of information, records and specifications, as well as information related to the\nmanagement policies and plans for the Company. Employee agrees and acknowledges that all of such information, in any form, and copies and extracts thereof are and shall remain the sole and exclusive property of the Company, and\nEmployee shall on request return to the Company the originals and all copies of any such information provided to or acquired by Employee in connection with his association with the Company, and shall return to the Company all files,\ncorrespondence and/or other communications received, maintained and/or originated by Employee during the course of such association. All written or other tangible material containing Confidential Information shall not be removed from\nthe premises of the Company, either in original or reproduced form, under any circumstances whatsoever, without the prior written consent of an authorized officer of the Company, except in the ordinary course of business, and shall be\ndelivered to the Company upon the earlier of a request by the Company or the termination of Employee’s employment with the Company. Employee further agrees to treat all confidential information and know-how of any affiliate, client,\nemployee, customer, contractor, vendor or supplier of the Company in the same manner as the Confidential Information.\n4. No Interference. For the period commencing on the date hereof and ending two years after the date of termination of employment, Employee shall not, without the prior written approval of an authorized officer of the Company,\ndirectly or indirectly through any other Person (i) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the relationship between the Company and its Affiliates and\nany employee thereof, (ii) hire any Person who was an employee of the Company or any of its Affiliates within twelve months after such Person’s employment with the Company and its Affiliates was terminated for any reason,\n(iii) induce or attempt to induce any supplier of Charged Off Accounts or other business relation of the Company or any of its Affiliates to cease doing business with the Company or its Affiliates, or in any way interfere with the\nrelationship between any such supplier or business relation and the Company and its Affiliates or (iv) acquire Charged Off Accounts from any Person that was a seller of Charged Off Accounts to the Company or its Affiliates during the\ntwelve (12) month period immediately preceding the date of termination of Employee’s employment; provided, however that this clause (iv) shall not apply to any competitive bidding situation for Charged Off Accounts which is publicly\nannounced in an industry publication.\n5. Reasonableness of Restrictions. Employee agrees that the covenants set forth in Sections 2, 3 and 4 are reasonable with respect to their duration, geographical area and scope. In the event that any of the provisions of Sections 2, 3 or 4\nrelating to the geographic or temporal scope of the covenants contained therein or the nature of the business or activities restricted thereby shall be declared by a court of competent jurisdiction or arbitral panel to exceed the maximum\nrestrictiveness as to duration, geographical area and/or scope such court or arbitral panel deems enforceable, such provision shall be deemed to be replaced herein by the maximum restriction as to duration, geographical area and/or scope\ndeemed enforceable by such court or arbitral panel in light of all the facts and circumstances applicable thereto.\n2\n6. Remedies. Employee hereby acknowledges that Employee’s covenants and obligations hereunder, are of special, unique, unusual, extraordinary and intellectual character, which gives them a peculiar value, the actual or threatened\nbreach of which shall result in substantial injuries and damages, for which monetary relief may fail to provide an adequate remedy at law. Accordingly, Employee agrees that the Company shall be entitled, in the event of an actual or\nthreatened breach of this Agreement, to seek remedies including but not necessarily limited to (i) temporary or permanent injunctive relief; (ii) specific performance; and (iii) monetary relief, to the extent that monetary relief may\nconstitute an adequate remedy in whole or in part; provided that Employee does not waive the right to oppose relief on the grounds that no breach or threatened breach has occurred. If any proceeding for injunctive relief and/or specific\nperformance is brought by the Company to enforce the terms of this Agreement, Employee shall be deemed to have waived, and shall not assert, any claim or defense that the Company has an adequate remedy at law or that such a remedy\nat law exists. If any action at law or in equity is brought to enforce or interpret the terms of this Agreement, the Company, if it prevails in such action, shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in\naddition to any other relief which a court of competent jurisdiction may order.\n7. Property of the Company. On the termination of employment or whenever requested by the Company, Employee shall immediately deliver to the Company all property in Employee’s possession or under Employee’s control\nbelonging to the Company including (but not limited to) all books, records, files, customer lists, materials or correspondence, in good condition, except for ordinary wear and tear and damage by any cause beyond the reasonable control of\nEmployee.\n8. Successors; Binding Agreement. This Agreement shall inure to the benefit of the Company and its Affiliates, successors and assigns, and shall be binding upon Employee and his legal representatives and successors. Employee may\nnot assign this Agreement or any of Employee’s interests hereunder or delegate any duty or responsibility incurred by Employee hereunder to another. The Company, at any time and without the consent of Employee, may assign or\ntransfer, for such consideration and on such terms and conditions as it may deem appropriate, this Agreement and all of its interests hereunder and no such assignment or transfer by the Company shall in any manner restrict, limit or\nmodify the interests, duties and responsibilities of Employee under this Agreement.\n9. Waiver and Modification. Any waiver, alteration or modification of any of the terms of this Agreement shall be valid only if made in writing and signed by the parties hereto; provided, that any such waiver, alteration or modification\nis consented to on the Company’s behalf by an authorized officer of the Company. No waiver by any of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with respect to any subsequent occurrences or\ntransactions hereunder unless such waiver specifically states that it is to be construed as a continuing waiver.\n10. Severability. Whenever possible each provision and term of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision or term of this Agreement shall be held to be\nprohibited by or wholly invalid under such applicable law, then (i) such provision or term shall be ineffective only to the extent of such provision or invalidity, without invalidating or affecting in any manner whatsoever the remainder of\nsuch provision or term or the remaining provisions or terms of this Agreement and (ii) the invalid or unenforceable term or provision shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to\nexpressing the intention of the invalid or unenforceable term or provision.\n11. Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed effective and given upon actual delivery if presented personally, one business day after the date sent if sent by prepaid\ntelegram, overnight courier service, telex, or by facsimile\n3\ntransmission or five business days after the date sent if sent by certified or registered mail, postage prepaid, return receipt requested, which shall be addressed:\nIn the case of the Company, to:\nAsset Acceptance Capital Corp.\n28405 Van Dyke Avenue\nWarren, Michigan 48093\nAttention: Nathaniel F. Bradley IV\nFacsimile No.: 586-446-7832\nIn the case of Employee, to such Employee’s address as shown in the records of the Company, or, in each case, to such other address as may be designated in writing by any such party.\n12. Captions and Section Headings. Captions and section headings herein are for convenience only, are not a part hereof and shall not be used in construing this Agreement.\n13. Entire Agreement. This Agreement, constitutes the entire understanding and agreement of the parties hereto regarding the subject matter hereof.\n14. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.\n15. Survival. The agreements and covenants made by Employee in and the obligations of Employee in this Agreement shall survive the termination of this Agreement and the employment of Employee. Each such agreement and covenant\nby Employee shall be construed as a covenant and agreement independent of any other provision herein, and the existence of any claim or cause of action by Employee against the Company shall not constitute a defense to the enforcement\nof the provisions of any such covenant or agreement.\n16. Employee Acknowledgement. Employee hereby represents to the Company that:\n(a) Employee has had the opportunity to read, and in fact has read, this Agreement in its entirety and understands each provision of this Agreement;\n(b) Employee’s education, training and experience are such that following the termination of Employee’s employment with the Company, Employee will have the ability to secure other gainful employment by engaging in activities that\nwill not violate any provision of this Agreement;\n(c) Employee understands and agrees that Employee has not been promised any fixed duration of employment; and\n(d) notwithstanding anything herein to the contrary, no provision hereof nor any actions taken or practices, policies or procedures followed by the Company shall be construed to give Employee any vested property right or any expectation\nor guarantee of continued employment.\n17. Governing Law. This Agreement shall be governed in all respects by the laws of the State of Michigan without regard to any laws or regulations relating to choice of laws (whether of the State of Michigan or any other jurisdiction)\nthat would cause the application of the laws of any jurisdiction other than the State of Michigan.\n4\n18. SUBMISSION TO JURISDICTION; VENUE. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY TRANSACTIONS CONTEMPLATED HEREBY SHALL BE BROUGHT IN\nTHE COURTS OF THE STATE OF MICHIGAN OR IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SITTING IN DETROIT, MICHIGAN , AND , BY EXECUTION AND\nDELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HEREBY ACCEPTS FOR HIMSELF, HERSELF OR ITSELF AND IN RESPECT OF HIS, HER OR ITS PROPERTY GENERALLY AND UNCONDITIONALLY ,\nTHE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH OF THE PARTIES IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN\nANY SUCH ACTION OR PROCEEDING BY MAILING COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID , TO SUCH PARTY AT HIS, HER OR ITS ADDRESS AS PROVIDED IN SECTION\n14 HEREOF. NOTHING IN THIS SECTION 18 SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS IN ANY\nOTHER JURISDICTION.\n19. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND\nDIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY\nLITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nASSET ACCEPTANCE CAPITAL CORP.\nBy:\n/s/ Nathaniel F. Bradley IV\nName:\nNathaniel F. Bradley IV\nTitle:\nPresident & CEO\n/s/ James C. Lee\nName:\nJames C. Lee\n5
+0c7b90701575b147c4ac245ca478ee7c.pdf	effective_date jurisdiction party	EX-10 .14 23 a07-2226_1ex10d14.htm EX-10.14\nEXHIBIT 10.14\nCONSULTING, NON -COMPETITION AND\nCONFIDENTIALITY AGREEMENT\nThis Consulting, Non-Competition and Confidentiality Agreement (the “AGREEMENT”) is made as of the 5th day of November 2004 (the “EFFECTIVE DATE”), by and between Richard Harcke (“HARCKE”) and\nHaynes Wire Company, a Delaware corporation (“BUYER”).\nPRELIMINARY STATEMENT\nPrior to the date hereof, Sellers have engaged in the business of owning and operating a wire manufacturing business (the “BUSINESS”). This Agreement is made in connection with and as a condition to consummation of\nthe transactions contemplated by a certain Asset Purchase Agreement dated October 28, 2004, by and among Harcke, The Branford Wire and Manufacturing Company, a Connecticut corporation (“BRANFORD”), Carolina Industries, Inc.\na Connecticut corporation (“CAROLINA INDUSTRIES”) (Branford and Carolina Industries together, “SELLERS”) and Buyer (the “ASSET PURCHASE AGREEMENT”). Under the terms of the Asset Purchase Agreement, Buyer has\nagreed to purchase, and Sellers have agreed to sell, the assets used in Sellers’ operation of the Business. Harcke has acquired extensive knowledge about the conduct of the Business as the owner and operator of Sellers. This Agreement is\nentered into between Buyer and Harcke to protect the goodwill of the Business that is being sold to Buyer by Sellers and to protect against unfair competition by Harcke. All capitalized terms not herein defined have the meaning ascribed\nto them in the Asset Purchase Agreement.\nAGREEMENT\nIn consideration of the premises and mutual covenants contained in this Agreement and as an inducement to Buyer to enter into the Asset Purchase Agreement, the parties hereby agree as follows:\nI.\nCONSULTING\nA. SERVICES. For a period of six (6) months from the Effective Date, Harcke will, at the request of the officers of Buyer from time to time, provide consulting services to Buyer or any affiliate of Buyer with respect to all\naspects of the Business, including without limitation the provision of advice on business strategy and operations for the Business and management advice and consultation to the officers of Buyer (collectively, the “SERVICES”). Harcke\nshall provide the Services at such times as may be reasonably requested by Buyer.\nII.\nNON-COMPETITION\nA. AGREEMENT NOT TO COMPETE. To protect Buyer’s interest in the goodwill acquired by Buyer from Sellers and to prevent unfair competition, for a period of seven (7) years from the Effective Date (the\n“R ESTR I C TED PER I O D”), except as provided in SECTION II(A) and subject to the geographical limitations set forth in SECTION II(B), Harcke shall not:\n1. Engage in any activity directly or indirectly, as an owner, consultant, independent contractor or otherwise in the Business or any related business that is competitive with Buyer, including without\nlimitation any activity that is necessary or incident to the conduct of the Business or any related business in a manner similar to any of the business practices engaged in by either Seller during Harcke’s ownership and\noperation of such Seller; provided, however, nothing contained in this Agreement shall prevent either Seller from continuing to sell the Excess Inventory (as such term is defined in the Asset Purchase Agreement);\n2. Perform, on behalf of himself or any person or entity, the same or similar services as those performed by Harcke for either Seller prior to the date of this Agreement;\n3. Hire or employ or attempt to hire or employ any person who on or after the date hereof, is an employee, manager, or officer of Buyer (each, an “EMPLOYEE”), or in any way cause or assist or attempt to\ncause or assist, or, directly or indirectly, seek to solicit, induce, bring about, influence, promote, facilitate, cause, assist or encourage any Employee to leave Buyer’s employ or to accept employment with or otherwise\nperform services for on or on behalf of any person or entity that engages in, or otherwise competes with, the Business or any related business (“COMPETITOR”); or\n4. Contact any customers or suppliers of Buyer, either directly or indirectly, for himself or for others, so as to (i) directly or indirectly divert or influence or attempt to divert or influence any business of\nBuyer to a Competitor, or (ii) directly or indirectly solicit or provide services similar to those provided by Buyer, or (iii) otherwise directly or indirectly interfere in any fashion with Buyer’s relationship with such\ncustomers or suppliers, or with the business or operations then being conducted by Buyer.\nB. GEOGRAPHICAL LIMITATIONS. The restrictions set forth in SECTION II(A) in this Agreement shall be applicable to the following geographic areas that can be enforced against Harcke during the Restricted Period:\n1. In North America;\n2. In the United States of America;\n3. In each State in which Sellers previously had operations and/or conducted significant activities relating to the Business, and all contiguous states;\n4. In the State of North Carolina;\n5. In Henderson County, North Carolina, and all contiguous counties; and\n6. Within a fifty (50) mile radius of any location at which Sellers conducted the Business.\n2\nIII.\nCONFIDENTIALITY\nA. CONFIDENTIAL INFORMATION DEFINED . “C O N FI D EN TI A L I N FO RM A TI O N” as used in this Agreement shall mean, collectively, any and all data and information about Buyer’s or Sellers’ businesses\nincluding, but not limited to (i) all information relating to selling or financing processes, specifications and procedures relating to the Business; (ii) customer lists and other customer-related information including names, addresses,\nspecifications or requirements, purchase or delivery quantities, lines of credit, and delivery, financing, and auction schedules; (iii) supplier lists; (iv) marketing plans and concepts; and (v) sales, costs, profits, profit margins, salaries and\nother financial information pertaining to Buyer or either Seller; provided, however, that “Confidential Information” shall in no event include data or information that (a) was available to the public prior to the date hereof or (b) becomes\navailable to the public other than as a result of disclosure by Harcke in violation hereof.\nB. USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION . Throughout the Restricted Period, Harcke agrees to (i) keep confidential and not to disclose to anyone except the authorized representatives of Buyer all\nConfidential Information; and (ii) refrain from using such Confidential Information in any manner adverse to the interests of Buyer.\nC. RECORDS AND COPIES. Any and all records and copies of records pertaining to the Confidential Information that were or are made or received by either Seller or Harcke shall be kept confidential and Harcke shall\nnot disclose any such records or copies of records to anyone except Buyer and its authorized representatives. All records and copies of records of Buyer are and shall remain the property of Buyer and shall be subject to Buyer’s custody\nand control.\nIV.\nCOMPENSATION\nA. COMPENSATION . In full payment and satisfaction for the Services and Harcke’s agreements and understandings in SECTIONS I and II and subject to the terms and conditions of this Agreement, Buyer shall\ncompensate Harcke as follows:\n1. Buyer shall pay Harcke seven (7) equal annual installments of $110,000.00 each. The first installment shall be paid on the Effective Date and one (1) additional installment shall be paid on each of the\nfirst six (6) anniversaries of the Effective Date; provided that Buyer shall not be required to make any payment due on any anniversary following a breach by Harcke of his obligations under SECTIONS I or II of this\nAgreement. At any time on or after April 1, 2005, Buyer shall, upon three (3) Business Days written request from Harcke, escrow the remaining $660,000 of installments to be paid in exchange for Harcke’s performance\nunder this Agreement with Investors Bank and Trust Company. In the event that Harcke requests that Buyer provide the escrow as set forth above and Buyer does not provide such escrow, this Agreement shall\nautomatically terminate, including all obligations of Harcke not to compete under ARTICLE II and of Buyer to make payments to Harcke under this ARTICLE IV.\n3\n2. For a period of three (3) years following the Effective Date, Buyer shall provide Harcke with office space at the facilities of Buyer located at 158 N. Egerton Road, Mountain Home, North Carolina\n28758, as the parties shall mutually agree.\n3. During the Restricted Period, Buyer shall provide Harcke and his spouse with medical benefits comparable to those previously provided to Harcke and his spouse by Sellers.\nV.\nGENERAL PROVISIONS\nA. REMEDIES. Harcke acknowledges and agrees that any violation by Harcke of this Agreement will cause Buyer to suffer irreparable harm for which Buyer will not have any adequate remedy at law. Therefore, if Harcke\nthreatens to violate or violates any provision of this Agreement, Buyer shall be entitled to injunctive relief without bond, including, but not limited to, temporary restraining orders and/or preliminary or permanent injunctions, to restrain or\nenjoin any violation or threatened violation of this Agreement. Buyer’s right to injunctive relief shall be in addition to, and not in lieu of, any other legal or equitable remedies that may be available to Buyer, including but not limited to\nmonetary damages to the extent they are calculable, including lost profits.\nB. CLAIMS BY HARCKE. Any claim or cause of action by Harcke against Buyer shall not constitute a defense to the enforcement of the restrictions and covenants set forth in this Agreement and shall not be used to\nprohibit injunctive relief.\nC. GOVERNING LAW; JURISDICTION AND VENUE. This Agreement shall be construed and enforced in accordance with, and governed by, the Laws of the State of Indiana (without giving effect to the principles of\nconflicts of Laws thereof). The parties hereto irrevocably agree and consent to the non-exclusive jurisdiction of the courts of the State of Indiana and the federal courts of the United States, sitting in Indianapolis, Indiana for the\nadjudication of any matters arising under or in connection with this Agreement.\nD. COSTS AND ATTORNEYS’ FEES. In the event any party brings suit to construe or enforce the terms hereof, or raises this Agreement as a defense in a suit brought by another party, the prevailing party shall be\nentitled to recover its reasonable costs and expenses, including, without limitation, reasonable attorneys’ fees incurred by that party in enforcing the terms and conditions of this Agreement.\nE. SEVERABILITY . Harcke acknowledges and agrees that the restrictions contained in this Agreement are reasonable and necessary to safeguard the protectable interests of Buyer. If, notwithstanding such\nacknowledgement and agreement, any clause, portion, section, restriction or paragraph of this Agreement is determined to be unreasonable, unenforceable or invalid for any reason, such determination shall not affect the enforceability or\nvalidity of the remainder of this Agreement, and the unreasonable, unenforceable or invalid provision shall be deemed amended and modified and shall be given effect and enforced to the maximum extent that is determined to be\nreasonable and enforceable.\n4\nF. ENTIRE AGREEMENT, MODIFICATIONS, INTERPRETATION . This Agreement constitutes the entire agreement by and between Buyer and Harcke with respect to the matters addressed herein and shall supersede\nall prior and contemporaneous agreements, representations, and understandings whether written or oral, with respect to such obligations. No amendment to or modification of this Agreement shall be effective unless the amendment or\nmodification is in writing and signed by the parties. This Agreement shall be construed as a whole, according to its fair meaning, and not strictly construed for or against either party.\nG. SUCCESSORS AND ASSIGNS. Neither party hereto shall assign or delegate this Agreement or any rights or obligations hereunder without the prior written consent of the other party hereto, and any attempted\nassignment or delegation without prior written consent shall be void and of no force or effect; provided, however, Buyer may without consent assign this Agreement and all of its rights and delegate its obligations hereunder to an affiliate\nof Buyer or to any person or entity who shall acquire all or substantially all of the assets of Buyer. This Agreement shall inure to the benefit of and shall be binding upon the successors and permitted assigns of the parties hereto.\nH. NON -WAIVER . No act or omission by Buyer shall be deemed a waiver by Buyer of any of Buyer’s rights under this Agreement. Therefore, the failure of Buyer to enforce any restriction against Harcke or to seek a\ndifferent remedy shall not be construed as a waiver or estoppel to the enforcement of the restrictions against Harcke.\nI. NOTICES. All notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given only if delivered personally or by facsimile transmission, with confirmation of\nsuccessful transmission, and mailed (first class postage prepaid) to the parties at the following addresses or facsimile numbers:\nIf to Buyer:\nHaynes Wire Company\n1020 West Park Avenue\nP.O . Box 9013\nKokomo, IN 46904-9013\nTel. No. (765) 456-6000\nFax. No. (765) 456-6125\nAttn: Francis J. Petro, President and CEO\nWith a copy to:\nIce Miller\nOne American Square, Box 82001\nIndianapolis, IN 46282 -0200\nFacsimile No.: (317) 592-4666\nAttn: Stephen J. Hackman\nIf to Harcke:\nRichard Harcke\n420 Vanderbilt Road\nAsheville, NC 28803\nTel. No. 828-692 -5791\nFax No. 828-697-9818\n5\nJ. COUNTERPARTS. This Agreement may be executed in one or more counterparts, any one of which need not contain the signatures of more than one party, and all such counterparts taken together shall constitute one\nand the same instrument. Signatures on this Agreement may be communicated by facsimile transmission and shall be binding upon the parties transmitting the same by facsimile transmission. Counterparts with original signatures shall be\nmailed to the other parties within three (3) calendar days of the applicable facsimile transmission; PROVIDED, that the failure to provide the original counterpart shall have no effect on the validity or the binding nature of this Agreement.\n[SIGNATURES ON FOLLOWING PAGE]\n6\nTHE PARTIES HERETO ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT , AND AGREE TO BE BOUND BY ITS TERMS. They further acknowledge that they have exercised\ndue diligence in reviewing this Agreement, and that each has had adequate opportunity to consult with legal counsel or other advisors to the extent that each deemed such consultation necessary.\nIN WITNESS WHEREOF, Buyer and Harcke have executed this Agreement effective for all purposes as of the Effective Date.\n“BUYER”\n“HARCKE”\nHAYNES WIRE COMPANY\nBy:\n/s/Marcel Martin\nBy:\n/s/Richard Harcke\nMarcel Martin, Vice President-Finance,\nRichard Harcke\nChief Financial Officer and Treasurer\n7	EX-10.l4 23 a07-2226_1ex10d14.htm EX-10.14\nEXHIBIT 10.14\nCONSULTING, NON-COMPETITION AND\nCONFIDENTIALITY AGREEMENT\nThis Consulting, Non-Competition and Confidentiality Agreement (the "AGREEMENT”) is made as of the 5th day of November 2004 (the ”EFFECTIVE DATE"), by and between Richard Harcke ("HARCKE") and\nHaynes Wire Company, a Delaware corporation (”BUY ER”).\nPRELIMINARY STATEMENT\nPriorto the date hereof, Sellers have engaged in the business of owning and operating a wire manufacturing business (the "BUSINESS”). This Agreement is made in connection with and as a condition to consummation of\nthe transactions contemplated by a certain Asset Purchase Agreement dated October 28, 2004, by and among Harcke, The Branford Wire and Manufacturing Company, a Connecticut corporation ("BRA NFO RD ”), Carolina Industries, Inc.\na Connecticut corporation ("CA ROLINA INDUSTRIES”) (Branforcl and Carolina Industries together, "SELLERS”) and Buyer (the "A SSET PURCHASE AGREEMENT "). Under the terms of the Asset Purchase Agreement, Buyer has\nagreed to purchase, and Sellers have agreed to sell, the assets used in Sellers' operation of the Business. Harcke has acquired extensive knowledge about the conduct of the Business as the owner and operator of Sellers This Agreement is\nentered into between Buyer and Harcke to protect the goodwill of the Business that is being sold to Buyer by Sellers and to protect against unfair competition by Harcke. All capimlized terms not herein defined have the meaning ascribed\nto them in the A sset Purchase A greement.\nAGREEMENT\nIn consideration of the premises and mutual covenants contained in this Agreement and as an inducement to Buyer to enter into the Asset Purchase Agreement, the parties hereby agree as follows:\n1. CONSULTING\nA. SERVICES. For a period of six (6) months from the Effective Date, Harcke will, at the request of the officers of Buyer from time to time, provide consulting services to Buyer or any affiliate of Buyer with respect to all\naspects of the Business, including without limimtion the provision of advice on business strategy and operations for the Business and management advice and consultation to the officers of Buyer (collectively, the "SERVICES”). Harcke\nshall provide the Services at such times as may be reasonably requested by Buyer.\n11. NON-COMPETITION\nA. AGREEMENT NOT TO COMPETE. To protect Buyer’ s interest in the goodwill acquired by Buyer from Sellers and to prevent unfair competition, for a period of seven (7) years from the Effective Date (the\n"RESTRICTED PERIOD "), except as provided in SECTION II(A) and subject to the geographical limitations set forth in SECTION II(B), Harcke shall not\n \n1. Engage in any activity directly or indirectly, as an owner, consultant, independent contractor or otherwise in the Business or any related business that is competitive with Buyer, including without\nlimitation any activity that is necessary or incident to the conduct of the Business or any related business in a manner similar to any of the business practices engaged in by either Seller during Harcke's ownership and\noperation of such Seller; provided, however, nothing contained in this Agreement shall prevent either Seller from continuing to sell the Excess Inventory (as such term is defined in the Asset Purchase Agreement);\n2. Perform, on behalf of himself or any person or entity, the same or similar services as those performed by Harcke for either Seller priorto the date of this Agreement;\n3. Hire or employ or attempt to hire or employ any person who on or after the date hereof, is an employee, manager, or officer of Buyer (each, an "EMPLOY EE"), or in any way cause or assist or attempt to\ncause or assist, or, directly or indirectly, seek to solicit, induce, bring about, influence, promote, facilitate, cause, assist or encourage any Employee to leave Buyers employ or to accept employment with or otherwise\nperform services for on or on behalf of any person or entity that engages in, or otherwise competes with, the Business or any related business (”COMPETITOR"); or\n4. Contact any customers or suppliers of Buyer, either directly or indirectly, for himself or for others, so as to (i) directly or indirectly divert or influence or attempt to divert or influence any business of\nBuyer to a Competitor, or (ii) directly or indirectly solicit or provide services similarto those provided by Buyer, or (iii) otherwise directly or indirectly interfere in any fashion with Buyer’ s relationship with such\ncustomers or suppliers, or with the business or operations then being conducted by Buyer.\nB. GEOGRAPHICAL LIMITATIONS. The restrictions set forth in SECTION II(A) in this Agreement shall be applicable to the following geographic areas that can be enforced against Harcke during the Restricted Period:\n1. In North America,-\n2. In the United Smtes of America;\n3. In each State in which Sellers previously had operations and/or conducted significant activities relating to the Business, and all contiguous states;\n4. In the State of North Carolina;\n5. In Henderson County, North Carolina, and all contiguous counties; and\n6. Within a fifty (50) mile radius of any location at which Sellers conducted the Business.\nIII. CONFIDENTIALITY\nA. CONFIDENTIAL IN :ORMATION DEFINED. "CONFID ENTIAL INFORMATION” as used in this Agreement shall mean, collectively, any and all dam and information about Buyer’ s or Sellers' businesses\nincluding, but not limited to (i) all information relating to selling or financing processes, specifications and procedures relating to the Business; (ii) customer lists and other customer-related information including names, addresses,\nspecifications or requirements, purchase or delivery quantities, lines of credit, and delivery, financing, and auction schedules,- (iii) supplier lists; (iv) marketing plans and concepts; and (v) sales, costs, profits, profit margins, salaries and\nother financial information pertaining to Buyer or either Seller; provided, however, that "Confidential Information" shall in no event include data orinformation that (a) was available to the public prior to the date hereof or (b) becomes\navailable to the public other than as a result of disclosure by Harcke in violation hereof.\nB. USE OR DISCLOSU E OF CONFIDENTIAL INFORMATION. Throughout the Restricted Period, Harcke agrees to (i) keep confidential and not to disclose to anyone except the authorized represenmtives of Buyer all\nConfidential Information,- and (ii) refrain from using such Confidential Information in any manner adverse to the interests of Buyer.\nC. RECORDS AND CO 3IES. Any and all records and copies of records pertaining to the Confidential Information that were or are made or received by either Seller or Harcke shall be kept confidential and Harcke shall\n \nnot disclose any such records or copies 0 records to anyone except Buyer and its authorized representatives. All records and copies of records of Buyer are and shall remain the property of Buyer and shall be subject to Buyer’ s custody\nand control.\nIV. COMPENSATION\nA. COMPENSATION. In full payment and satisfaction for the Services and Harcke’s agreements and understandings in SECTIONS I and II and subject to the terms and conditions of this Agreement, Buyer shall\ncompensate Harcke as follows:\n1. Buyer shall pay Harcke seven (7) equal annual installments of $110,000.00 each. The first installment shall be paid on the Effective Date and one (1) additional insmllment shall be paid on each of the\nfirst six (6) anniversaries of the Effective Date; provided that Buyer shall not be required to make any payment due on any anniversary following a breach by Harcke of his obligations under SECTIONS I or II of this\nAgreement. At any time on or afterApril 1, 2005, Buyer shall, upon three (3) Business Days written request from Harcke, escrow the remaining $660,000 of installments to be paid in exchange for Harcke's performance\nunder this Agreement with Investors Bank and Trust Company. In the event that Harcke requests that Buyer provide the escrow as set forth above and Buyer does not provide such escrow, this Agreement shall\nautomatically terminate, including all obligations of Harcke not to compete underARTICLE II and of Buyer to make payments to Harcke under this ARTICLE IV.\n2. For a period of three (3) years following the Effective Date, Buyer shall provide Harcke with office space at the facilities of Buyer located at 158 N. Egerton Road, Mountain Home, North Carolina\n28758, as the parties shall mutually agree.\n3. During the Restricted Period, Buyer shall provide Harcke and his spouse with medical benefits comparable to those previously provided to Harcke and his spouse by Sellers.\nV. GENERAL PROVISIONS\nA. REMEDIES. Harcke acknowledges and agrees that any violation by Harcke of this Agreement will cause Buyer to suffer irreparable harm for which Buyer will not have any adequate remedy at law. Therefore, if Harcke\nthreatens to violate or violates any provision of this Agreement, Buyer shall be entitled to injunctive relief without bond, including, but not limited to, temporary restraining orders and/or preliminary or permanent injunctions, to restrain or\nenjoin any violation or threatened violation of this Agreement. Buyer’ s right to injunctive relief shall be in addition to, and not in lieu of, any other legal or equimble remedies that may be available to Buyer, including but not limited to\nmonemry damages to the extent they are calculable, including lost profits.\nB. CLAIMS BY HA RCKE. Any claim or cause of action by Harcke against Buyer shall not constitute a defense to the enforcement of the restrictions and covenants set forth in this Agreement and shall not be used to\nprohibit injunctive relief .\nC. G OV ERNING LAW; JURISDICTION AND VENUE. This Agreement shall be construed and enforced in accordance with, and governed by, the Laws of the State of Indiana (without giving effect to the principles of\nconflicts of Laws thereof). The parties hereto irrevocably agree and consent to the non- exclusive jurisdiction of the courts of the State of Indiana and the federal courts of the United States, sitting in Indianapolis, Indiana for the\nadjudication of any matters arising under or in connection with this Agreement.\nD. COSTS AND ATTORNEY S' FEES. In the event any party brings suit to construe or enforce the terms hereof, or raises this Agreement as a defense in a suit brought by another party, the prevailing party shall be\nentitled to recover its reasonable costs and expenses, including, without limitation, reasonable attorneys’ fees incurred by that party in enforcing the terms and conditions of this Agreement.\nE. SEVERABILITY. Harcke acknowledges and agrees that the restrictions contained in this Agreement are reasonable and necessary to safeguard the protectable interests of Buyer. If, notwithstanding such\nacknowledgement and agreement, any clause, portion, section, restriction or paragraph of this Agreement is determined to be unreasonable, unenforceable or invalid for any reason, such determination shall not affect the enforceability or\nvalidity of the remainder of this Agreement, and the unreasonable, unenforceable or invalid provision shall be deemed amended and modified and shall be given effect and enforced to the maximum extent that is determined to be\nreasonable and enforceable.\nF. ENTIRE AGREEMENT, MODIFICATIONS, INTERPRETATION. This Agreement constitutes the entire agreement by and between Buyer and Harcke with respect to the matters addressed herein and shall supersede\nall prior and contemporaneous agreements, representations, and understandings whether written or oral, with respect to such obligations. No amendment to or modification of this Agreement shall be effective unless the amendment or\nmodification is in writing and signed by the parties. This Agreement shall be construed as a whole, according to its fair meaning, and not strictly construed for or against either party.\nG. SUC CESSORS A ND A SSIG NS. Neither party hereto shall assign or delegate this A greement or any rights or obligations hereunder without the prior written consent of the other party hereto, and any attempted\nassignment or delegation without prior written consent shall be void and of no force or effect; provided, however, Buyer may without consent assign this Agreement and all of its rights and delegate its obligations hereunder to an affiliate\nof Buyer or to any person or entity who shall acquire all or subsmntially all of the assets of Buyer. This Agreement shall inure to the benefit of and shall be binding upon the successors and permitted assigns of the parties hereto.\nH. NO N-WAIVER. No act or omission by Buyer shall be deemed a waiver by Buyer of any of Buyer’ s rights under this Agreement. Therefore, the failure of Buyer to enforce any restriction against Harcke or to seek a\ndifferent remedy shall not be construed as a waiver or estoppel to the enforcement of the restrictions against Harcke.\nI. NOTICES. All notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given only if delivered personally or by facsimile transmission, with confirmation of\nsuccessful transmission, and mailed (first class posmge prepaid) to the parties at the following addresses or facsimile numbers:\nIf to B uy er: Iaynes Wire Company\n020 West Park Avenue\n3.0. Box 9013\nKokomo, IN 46904-9013\n" el. No. (765) 456-6000\n:ax. No. (765) 456-6125\nAttn: Francis]. Petro, President and CEO\nWith a copy to: ce Miller\nOne American Square, Box 82001\nndianapolis, IN 46282-0200\n:acsimile No.: (317) 592-4666\nAttn: Stephen]. Hackman\nIf to Harcke: Richard Harcke\n420 Vanderbilt Road\nAsheville, NC 28803\n" el. No. 828-692-5791\n \n:ax No. 828-697-9818\nJ. COUNTERPA RTS. This Agreement may be executed in one or more counterparts, any one of which need not contain the signatures of more than one party, and all such counterparts taken together shall constitute one\nand the same instrument. Signatures on this Agreement may be communicated by facsimile transmission and shall be binding upon the parties transmitting the same by facsimile transmission. Counterpam with original signatures shall be\nmailed to the other parties within three (3) calendar days of the applicable facsimile transmission; PROVIDED, that the failure to provide the original counterpart shall have no effect on the validity or the binding nature of this Agreement.\n[SIGNATURES ON FOLLOWING PAGE]\n \nTHE PARTIES HERETO ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS. They further acknowledge that they have exercised\ndue diligence in reviewing this Agreement, and that each has had adequate opportunity to consult with legal counsel or other advisors to the extent that each deemed such consultation necessary.\nIN WITNESS WHEREOF, Buyer and Harcke have executed this Agreement effective for all purposes as of the Effective Date.\n”BUY ER” "HARCKE"\nHAYNES WIRE COMPANY\nBy: /s/Mamel Martin By: /s/Richard Harcke\nVarce 55 I], VICE FIBSI €11— inance, 1C am e\nChief Financial Officer and Treasurer	EX-10.14 23 23 a07-2226 1ex10d14.htm EX-10.14\nEXHIBIT 10.14\nCONSULTING, NON-COMPETITION AND\nCONFIDENTIALITY AGREEMENT\nThis Consulting, Non-Competition and Confidentiality Agreement (the "AGREEMENT") is made as of the 5th day of November 2004 (the "EFFECTIVE DATE"), by and between Richard Harcke ("HARCKE") and\nHaynes Wire Company, a Delaware corporation ("BUY ER").\nPRELIMINARY STATEMENT\nPrior to the date hereof Sellers have engaged in the business of owning and operating a wire manufacturing business (the "BUSINESS"). This greement is made in connection with and as a condition to consummation\nof\nthe transactions contemplated by a certain Asset Purchase Agreement dated October 28, 2004, by and among Harcke, The Branford Wire and Manufacturing Company, a Connecticut corporation ("BRANFORD"), Carolina Industries, Inc.\na Connecticut corporation ("CAROLINA INDUSTRIES") (Branford and Carolina Industries together, "SELLERS") and Buyer (the "ASSET PURCHASE AGREEMENT"). Under the terms of the Asset Purchase Agreement, Buyer\nhas\nagreed to purchase, and Sellers have agreed to sell, the assets used in Sellers' operation of the Business. Harcke has acquired extensive knowledge about the conduct of the Business as the owner and operator of Sellers. This Agreement is\nentered into between Buyer and Harcke to protect the goodwill of the Business that is being sold to Buyer by Sellers and to protect against unfair competition by Harcke. All capitalized terms not herein defined have the meaning ascribed\nto them in the Asset Purchase Agreement.\nAGREEMENT\nIn consideration of the premises and mutual covenants contained in this Agreement and as an inducement to Buyer to enter into the Asset Purchase Agreement, the parties hereby agree as follows:\nI.\nCONSULTING\nA. SERVICES. For a period of six (6) months from the Effective Date, Harcke will at the request of the officers of Buyer from time to time, provide consulting services to Buyer or any affiliate of Buyer with respect to all\naspects of the Business, including without limitation the provision of advice on business strategy and operations for the Business and management advice and consultation to the officers of Buyer (collectively, the "SERVICES"). Harcke\nshall provide the Services at such times as may be reasonably requested by Buyer.\nII.\nNON-COMPETITION\nA. .AGREEMENT NOT TO COMPETE. To protect Buyer's interest in the goodwill acquired by Buyer from Sellers and to prevent unfair competition, for a period of seven (7) years from the Effective Date (the\n"RESTRICTED PERIOD"), except as provided in SECTION II(A) and subject to the geographical limitations set forth in SECTION II(B), Harcke shall not:\n1. Engage in any activity directly or indirectly as an owner, consultant, independent contractor or otherwise in the Business or any related business that is competitive with Buyer, including without\nlimitation any activity that is necessary or incident to the conduct of the Business or any related business in a manner similar to any of the business practices engaged in by either Seller during Harcke's ownership and\noperation of such Seller; provided, however, nothing contained in this Agreement shall prevent either Seller from continuing to sell the Excess Inventory (as such term is defined in the Asset Purchase Agreement);\n2.\nPerform, on behalf of himself or any person or entity, the same or similar services as those performed by Harcke for either Seller prior to the date of this Agreement;\n3. Hire or employ or attempt to hire or employ any person who on or after the date hereof, is an employee manager, or officer of Buyer (each, an "EMPLOYEE"), or in any way cause or assist or attempt to\ncause or assist, or, directly or indirectly, seek to solicit, induce, bring about, influence, promote, facilitate, cause, assist or encourage any Employee to leave Buyer's employ or to accept employment with or otherwise\nperform services for on or on behalf of any person or entity that engages in, or otherwise competes with, the Business or any related business ("COMPETITOR") or\n4. Contact any customers or suppliers of Buyer, either directly or indirectly, for himself or for others, so as to (i) directly or indirectly divert or influence or attempt to divert or influence any business of\nBuyer to a Competitor, or (ii) directly or indirectly solicit or provide services similar to those provided by Buyer, or (iii) otherwise directly or indirectly interfere in any fashion with Buyer's relationship with such\ncustomers or suppliers, or with the business or operations then being conducted by Buyer.\nB. GEOGRA GRAPHICAI LIMITATIONS. The restrictions set forth in SECTION II(A) in this Agreement shall be applicable to the following geographic areas that can be enforced against Harcke during the Restricted Period:\n1. In North A merica;\n2. In the United States of America;\n3. In each State in which Sellers previously had operations and/or conducted significant activities relating to the Business, and all contiguous states;\n4. In the State of North Carolina;\n5. In Henderson County, North Carolina, and all contiguous counties; and\n6. Within a fifty (50) mile radius of any location at which Sellers conducted the Business.\n2\nIII.\nCONFIDENTIALITY\nA. CONFIDENTIAL INFORMATION DEFINED. "CONFIDENTIAL INFORMATION" as used in this Agreement shall mean collectively, any and all data and information about Buyer's or Sellers' businesses\nincluding, but not limited to (i) all information relating to selling or financing processes specifications and procedures relating to the Business; (ii) customer lists and other customer-relate information including names, addresses,\nspecifications or requirements, purchase or delivery quantities lines of credit, and delivery, financing, and auction schedules; (iii) supplier lists; (iv) marketing plans and concepts; and (v) sales, costs, profits, profit margins, salaries and\nother financial information pertaining to Buyer or either Seller; provided, however, that "Confidential Information" shall in no event include data or information that (a) was available to the public prior to the date hereof or (b) becomes\navailable to the public other than as a result of disclosure by Harcke in violation hereof.\nB. USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION. Throughout the Restricted Period, Harcke agrees to (i) keep confidential and not to disclose to anyone except the authorized representatives of Buyer all\nConfidential Information; and (ii) refrain from using such Confidential Information in any manner adverse to the interests of Buyer.\nC. RECORDS AND COPIES. Any and all records and copies of records pertaining to the Confidential Information that were or are made or received by either Seller or Harcke shall be kept confidential and Harcke shall\nnot disclose any such records or copies of records to anyone except Buyer and its authorized representatives. All records and copies of records of Buyer are and shal remain the property of Buyer and shall be subjec to Buyer's custody\nand control.\nIV.\nCOMPENSATION\nA. COMPENSATION. In full payment and satisfaction for the Services and Harcke's agreements and understandings in SECTIONS I and II and subject to the terms and conditions of this A greement, Buyer shall\ncompensate Harcke as follows:\n1. Buyer shall pay Harcke seven (7) equal annual installments of $110,000.00 each. The first installment shall be paid on the Effective Date and one (1) additional installment shall be paid on each of the\nfirst six (6) anniversaries of the Effective Date; provided that Buyer shall not be required to make any payment due on any anniversary following a breach by Harcke of his obligations under SECTIONS or II of this\nAgreement At any time on or after April 1, 2005, Buyer shall, upon three (3) Business Days written request from Harcke, escrow the remaining $660,000 of installments to be paid in exchange for Harcke's performance\nunder\nthis Agreement with Investors Bank and Trust Company. In the event that Harcke requests that Buyer provide the escrow as set forth above and Buyer does not provide such escrow, this Agreement shall\nautomatically terminate, including all obligations of Harcke not to compete under ARTICLE II and of Buyer to make payments to Harcke under this ARTICLE IV.\n3\n2. For a period of three (3) years following the Effective Date, Buyer shall provide Harcke with office space at the facilities of Buyer located at 158 N. Egerton Road, Mountain Home, North Carolina\n28758, as the parties shall mutually agree.\n3. During the Restricted Period Buyer shall provide Harcke and his spouse with medical benefits comparable to those previously provided to Harcke and his spouse by Sellers.\nV.\nGENERAL PROVISIONS\nA. REMEDIES. Harcke acknowledges and agrees that any violation by Harcke of this Agreement will cause Buyer to suffer irreparable harm for which Buyer will not have any adequate remedy at law. Therefore, if Harcke\nthreatens to violate or violates any provision of this Agreement, Buyer shall be entitled to injunctive relief without bond including, but not limited to, temporary restraining orders and/or preliminary or permanent injunctions, to restrain or\nenjoin any violation or threatened violation of this Agreement Buyer's right to injunctive relief shal be in addition to, and not in lieu of, any other legal or equitable remedies that may be available to Buyer, including but not limited to\nmonetary damages to the extent they are calculable including lost profits.\nB. CLAIMS BY HARCKE Any claim or cause of action by Harcke against Buyer shall not constitute a defense to the enforcement of the restrictions and covenants set forth in this Agreement and shall not be used to\nprohibit injunctive relief.\nC.\nGOVERNING LAW; JURISDICTION AND VENUE. This Agreement shall be construed and enforced in accordance with and govemed by, the Laws of the State of Indiana (without giving effect to the principles of\nconflicts of Laws thereof). The parties hereto irrevocably agree and consent to the non-exclusive jurisdiction of the courts of the State of Indiana and the federal courts of the United States, sitting in Indianapolis, Indiana for the\nadjudication of any matters arising under or in connection with this Agreement.\nCOSTS AND ATTORNEY S' FEES. In the event any party brings suit to construe or enforce the terms hereof, or raises this Agreement as a defense in a suit brought by another party the prevailing party shall be\nentitled to recover its reasonable costs and expenses, including, without limitation, reasonable attomeys' fees incurred by that party in enforcing the terms and conditions of this Agreement.\nE. SEVERABILITY. Harcke acknowledges and agrees that the restrictions contained in this Agreement are reasonable and necessary to safeguard the protectable interests of Buyer. If, notwithstanding such\nacknowledgement and agreement, any clause, portion, section, restriction or paragraph of this Agreement is determined to be unreasonable, unenforceable or invalid for any reason, such determination shall not affect the enforceability or\nvalidity of the remainder of this Agreement, and the unreasonable, unenforceable or invalid provision shall be deemed amended and modified and shal be given effect and enforced to the maximum extent that is determined to be\nreasonable and enforceable.\n4\nF. ENTIRE AGREEMENT, MODIFICATIONS, INTERPRETATION. This Agreement constitutes the entire agreement by and between Buyer and Harcke with respect to the matters addressed herein and shall supersede\nall prior and contemporaneous agreements, representations, and understandings whether written or oral, with respect to such obligations. No amendment to or modification of this Agreement shall be effective unless the amendment or\nmodification is in writing and signed by the parties This A greement shall be construed as a whole, according to its fair meaning, and not strictly construed for or against either party.\nG. SUCCESSORS AND ASSIGNS Neither party hereto shal assign or delegate this Agreement or any rights or obligations hereunder without the prior written consent of the other party hereto, and any attempted\nassignment or delegation without prior written consent shall be void and of no force or effect provided, however, Buyer may without consent assign this Agreement and all of its rights and delegate its obligations hereunder to an affiliate\nof Buyer or to any person or entity who shall acquire all or substantially all of the assets of Buyer. This A greement shall inure to the benefit of and shall be binding upon the successors and permitted assigns of the parties hereto.\nH. NON-WAIVER. No act or omission by Buyer shall be deemed a waiver by Buyer of any of Buyer's rights under this Agreement. Therefore, the failure of Buyer to enforce any restriction against Harcke or to seek a\ndifferent remedy shall not be construed as a waiver or estoppel to the enforcement of the restrictions against Harcke.\nI. NOTICES. All notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given only if delivered personally or by facsimile transmission, with confirmation of\nsuccessful transmission, and mailed (first class postage prepaid) to the parties at the following addresses or facsimile numbers:\nIf to Buyer:\nHaynes Wire Company\n1020 West Park Avenue\nP.O Box 9013\nKokomo, IN 46904-9013\nTel. No. (765) 456-6000\nFax. No. (765) 456-6125\nAttn: Francis J. Petro, President and CEO\nWith a copy to:\nIce Miller\nOne A merican Square, Box 82001\nIndianapolis, IN 46282-0200\nFacsimile No.: (317) 592-4666\nAttn: Stephen Hackman\nIf to Harcke:\nRichard Harcke\n420 Vanderbilt Road\nAsheville, NC 28803\nTel. No. 828-692-5791\nFax No. 828-697-9818\n5\nJ. COUNTERPARTS. This Agreement may be executed in one or more counterparts, any one of which need not contain the signatures of more than one party, and all such counterparts taken together shall constitute\none\nand the same instrument Signatures on this Agreement may be communicated by facsimile transmission and shall be binding upon the parties transmitting the same by facsimile transmission. Counterparts with origina signatures shall be\nmailed to the other parties within three (3) calendar days of the applicable facsimile transmission; PROV IDED, that the failure to provide the original counterpart shall have no effect on the validity or the binding nature of this A greement.\n[SIGNATURES ON FOLLOWING PAGE]\n6\nTHE PARTIES HERETO CKNOWLEDGE THAT THEY HAVE REAI THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS. They further acknowledge that they have exercised\ndue diligence in reviewing this Agreement, and that each has had adequate opportunity to consult with legal counsel or other advisors to the extent that each deemed such consultation necessary.\nIN WITNESS WHEREOF, Buyer and Harcke have executed this A greement effective for all purposes as of the Effective Date.\n"BUY ER"\nHARCKE"\nHAYNES WIRE COMPANY\nBy:\n/s/Marcel Martin\nBy:\n/s/Richard Harcke\nMarcel Maruin, Vice resident-F Finance,\nRIChard Harcke\nChief Financial Officer and Treasurer\n7	EX-10 .14 23 a07-2226_1ex10d14.htm EX-10.14\nEXHIBIT 10.14\nCONSULTING, NON -COMPETITION AND\nCONFIDENTIALITY AGREEMENT\nThis Consulting, Non-Competition and Confidentiality Agreement (the “AGREEMENT”) is made as of the 5th day of November 2004 (the “EFFECTIVE DATE”), by and between Richard Harcke (“HARCKE”) and\nHaynes Wire Company, a Delaware corporation (“BUYER”).\nPRELIMINARY STATEMENT\nPrior to the date hereof, Sellers have engaged in the business of owning and operating a wire manufacturing business (the “BUSINESS”). This Agreement is made in connection with and as a condition to consummation of\nthe transactions contemplated by a certain Asset Purchase Agreement dated October 28, 2004, by and among Harcke, The Branford Wire and Manufacturing Company, a Connecticut corporation (“BRANFORD”), Carolina Industries, Inc.\na Connecticut corporation (“CAROLINA INDUSTRIES”) (Branford and Carolina Industries together, “SELLERS”) and Buyer (the “ASSET PURCHASE AGREEMENT”). Under the terms of the Asset Purchase Agreement, Buyer has\nagreed to purchase, and Sellers have agreed to sell, the assets used in Sellers’ operation of the Business. Harcke has acquired extensive knowledge about the conduct of the Business as the owner and operator of Sellers. This Agreement is\nentered into between Buyer and Harcke to protect the goodwill of the Business that is being sold to Buyer by Sellers and to protect against unfair competition by Harcke. All capitalized terms not herein defined have the meaning ascribed\nto them in the Asset Purchase Agreement.\nAGREEMENT\nIn consideration of the premises and mutual covenants contained in this Agreement and as an inducement to Buyer to enter into the Asset Purchase Agreement, the parties hereby agree as follows:\nI.\nCONSULTING\nA. SERVICES. For a period of six (6) months from the Effective Date, Harcke will, at the request of the officers of Buyer from time to time, provide consulting services to Buyer or any affiliate of Buyer with respect to all\naspects of the Business, including without limitation the provision of advice on business strategy and operations for the Business and management advice and consultation to the officers of Buyer (collectively, the “SERVICES”). Harcke\nshall provide the Services at such times as may be reasonably requested by Buyer.\nII.\nNON-COMPETITION\nA. AGREEMENT NOT TO COMPETE. To protect Buyer’s interest in the goodwill acquired by Buyer from Sellers and to prevent unfair competition, for a period of seven (7) years from the Effective Date (the\n“R ESTR I C TED PER I O D”), except as provided in SECTION II(A) and subject to the geographical limitations set forth in SECTION II(B), Harcke shall not:\n1. Engage in any activity directly or indirectly, as an owner, consultant, independent contractor or otherwise in the Business or any related business that is competitive with Buyer, including without\nlimitation any activity that is necessary or incident to the conduct of the Business or any related business in a manner similar to any of the business practices engaged in by either Seller during Harcke’s ownership and\noperation of such Seller; provided, however, nothing contained in this Agreement shall prevent either Seller from continuing to sell the Excess Inventory (as such term is defined in the Asset Purchase Agreement);\n2. Perform, on behalf of himself or any person or entity, the same or similar services as those performed by Harcke for either Seller prior to the date of this Agreement;\n3. Hire or employ or attempt to hire or employ any person who on or after the date hereof, is an employee, manager, or officer of Buyer (each, an “EMPLOYEE”), or in any way cause or assist or attempt to\ncause or assist, or, directly or indirectly, seek to solicit, induce, bring about, influence, promote, facilitate, cause, assist or encourage any Employee to leave Buyer’s employ or to accept employment with or otherwise\nperform services for on or on behalf of any person or entity that engages in, or otherwise competes with, the Business or any related business (“COMPETITOR”); or\n4. Contact any customers or suppliers of Buyer, either directly or indirectly, for himself or for others, so as to (i) directly or indirectly divert or influence or attempt to divert or influence any business of\nBuyer to a Competitor, or (ii) directly or indirectly solicit or provide services similar to those provided by Buyer, or (iii) otherwise directly or indirectly interfere in any fashion with Buyer’s relationship with such\ncustomers or suppliers, or with the business or operations then being conducted by Buyer.\nB. GEOGRAPHICAL LIMITATIONS. The restrictions set forth in SECTION II(A) in this Agreement shall be applicable to the following geographic areas that can be enforced against Harcke during the Restricted Period:\n1. In North America;\n2. In the United States of America;\n3. In each State in which Sellers previously had operations and/or conducted significant activities relating to the Business, and all contiguous states;\n4. In the State of North Carolina;\n5. In Henderson County, North Carolina, and all contiguous counties; and\n6. Within a fifty (50) mile radius of any location at which Sellers conducted the Business.\n2\nIII.\nCONFIDENTIALITY\nA. CONFIDENTIAL INFORMATION DEFINED . “C O N FI D EN TI A L I N FO RM A TI O N” as used in this Agreement shall mean, collectively, any and all data and information about Buyer’s or Sellers’ businesses\nincluding, but not limited to (i) all information relating to selling or financing processes, specifications and procedures relating to the Business; (ii) customer lists and other customer-related information including names, addresses,\nspecifications or requirements, purchase or delivery quantities, lines of credit, and delivery, financing, and auction schedules; (iii) supplier lists; (iv) marketing plans and concepts; and (v) sales, costs, profits, profit margins, salaries and\nother financial information pertaining to Buyer or either Seller; provided, however, that “Confidential Information” shall in no event include data or information that (a) was available to the public prior to the date hereof or (b) becomes\navailable to the public other than as a result of disclosure by Harcke in violation hereof.\nB. USE OR DISCLOSURE OF CONFIDENTIAL INFORMATION . Throughout the Restricted Period, Harcke agrees to (i) keep confidential and not to disclose to anyone except the authorized representatives of Buyer all\nConfidential Information; and (ii) refrain from using such Confidential Information in any manner adverse to the interests of Buyer.\nC. RECORDS AND COPIES. Any and all records and copies of records pertaining to the Confidential Information that were or are made or received by either Seller or Harcke shall be kept confidential and Harcke shall\nnot disclose any such records or copies of records to anyone except Buyer and its authorized representatives. All records and copies of records of Buyer are and shall remain the property of Buyer and shall be subject to Buyer’s custody\nand control.\nIV.\nCOMPENSATION\nA. COMPENSATION . In full payment and satisfaction for the Services and Harcke’s agreements and understandings in SECTIONS I and II and subject to the terms and conditions of this Agreement, Buyer shall\ncompensate Harcke as follows:\n1. Buyer shall pay Harcke seven (7) equal annual installments of $110,000.00 each. The first installment shall be paid on the Effective Date and one (1) additional installment shall be paid on each of the\nfirst six (6) anniversaries of the Effective Date; provided that Buyer shall not be required to make any payment due on any anniversary following a breach by Harcke of his obligations under SECTIONS I or II of this\nAgreement. At any time on or after April 1, 2005, Buyer shall, upon three (3) Business Days written request from Harcke, escrow the remaining $660,000 of installments to be paid in exchange for Harcke’s performance\nunder this Agreement with Investors Bank and Trust Company. In the event that Harcke requests that Buyer provide the escrow as set forth above and Buyer does not provide such escrow, this Agreement shall\nautomatically terminate, including all obligations of Harcke not to compete under ARTICLE II and of Buyer to make payments to Harcke under this ARTICLE IV.\n3\n2. For a period of three (3) years following the Effective Date, Buyer shall provide Harcke with office space at the facilities of Buyer located at 158 N. Egerton Road, Mountain Home, North Carolina\n28758, as the parties shall mutually agree.\n3. During the Restricted Period, Buyer shall provide Harcke and his spouse with medical benefits comparable to those previously provided to Harcke and his spouse by Sellers.\nV.\nGENERAL PROVISIONS\nA. REMEDIES. Harcke acknowledges and agrees that any violation by Harcke of this Agreement will cause Buyer to suffer irreparable harm for which Buyer will not have any adequate remedy at law. Therefore, if Harcke\nthreatens to violate or violates any provision of this Agreement, Buyer shall be entitled to injunctive relief without bond, including, but not limited to, temporary restraining orders and/or preliminary or permanent injunctions, to restrain or\nenjoin any violation or threatened violation of this Agreement. Buyer’s right to injunctive relief shall be in addition to, and not in lieu of, any other legal or equitable remedies that may be available to Buyer, including but not limited to\nmonetary damages to the extent they are calculable, including lost profits.\nB. CLAIMS BY HARCKE. Any claim or cause of action by Harcke against Buyer shall not constitute a defense to the enforcement of the restrictions and covenants set forth in this Agreement and shall not be used to\nprohibit injunctive relief.\nC. GOVERNING LAW; JURISDICTION AND VENUE. This Agreement shall be construed and enforced in accordance with, and governed by, the Laws of the State of Indiana (without giving effect to the principles of\nconflicts of Laws thereof). The parties hereto irrevocably agree and consent to the non-exclusive jurisdiction of the courts of the State of Indiana and the federal courts of the United States, sitting in Indianapolis, Indiana for the\nadjudication of any matters arising under or in connection with this Agreement.\nD. COSTS AND ATTORNEYS’ FEES. In the event any party brings suit to construe or enforce the terms hereof, or raises this Agreement as a defense in a suit brought by another party, the prevailing party shall be\nentitled to recover its reasonable costs and expenses, including, without limitation, reasonable attorneys’ fees incurred by that party in enforcing the terms and conditions of this Agreement.\nE. SEVERABILITY . Harcke acknowledges and agrees that the restrictions contained in this Agreement are reasonable and necessary to safeguard the protectable interests of Buyer. If, notwithstanding such\nacknowledgement and agreement, any clause, portion, section, restriction or paragraph of this Agreement is determined to be unreasonable, unenforceable or invalid for any reason, such determination shall not affect the enforceability or\nvalidity of the remainder of this Agreement, and the unreasonable, unenforceable or invalid provision shall be deemed amended and modified and shall be given effect and enforced to the maximum extent that is determined to be\nreasonable and enforceable.\n4\nF. ENTIRE AGREEMENT, MODIFICATIONS, INTERPRETATION . This Agreement constitutes the entire agreement by and between Buyer and Harcke with respect to the matters addressed herein and shall supersede\nall prior and contemporaneous agreements, representations, and understandings whether written or oral, with respect to such obligations. No amendment to or modification of this Agreement shall be effective unless the amendment or\nmodification is in writing and signed by the parties. This Agreement shall be construed as a whole, according to its fair meaning, and not strictly construed for or against either party.\nG. SUCCESSORS AND ASSIGNS. Neither party hereto shall assign or delegate this Agreement or any rights or obligations hereunder without the prior written consent of the other party hereto, and any attempted\nassignment or delegation without prior written consent shall be void and of no force or effect; provided, however, Buyer may without consent assign this Agreement and all of its rights and delegate its obligations hereunder to an affiliate\nof Buyer or to any person or entity who shall acquire all or substantially all of the assets of Buyer. This Agreement shall inure to the benefit of and shall be binding upon the successors and permitted assigns of the parties hereto.\nH. NON -WAIVER . No act or omission by Buyer shall be deemed a waiver by Buyer of any of Buyer’s rights under this Agreement. Therefore, the failure of Buyer to enforce any restriction against Harcke or to seek a\ndifferent remedy shall not be construed as a waiver or estoppel to the enforcement of the restrictions against Harcke.\nI. NOTICES. All notices, requests and other communications hereunder must be in writing and will be deemed to have been duly given only if delivered personally or by facsimile transmission, with confirmation of\nsuccessful transmission, and mailed (first class postage prepaid) to the parties at the following addresses or facsimile numbers:\nIf to Buyer:\nHaynes Wire Company\n1020 West Park Avenue\nP.O . Box 9013\nKokomo, IN 46904-9013\nTel. No. (765) 456-6000\nFax. No. (765) 456-6125\nAttn: Francis J. Petro, President and CEO\nWith a copy to:\nIce Miller\nOne American Square, Box 82001\nIndianapolis, IN 46282 -0200\nFacsimile No.: (317) 592-4666\nAttn: Stephen J. Hackman\nIf to Harcke:\nRichard Harcke\n420 Vanderbilt Road\nAsheville, NC 28803\nTel. No. 828-692 -5791\nFax No. 828-697-9818\n5\nJ. COUNTERPARTS. This Agreement may be executed in one or more counterparts, any one of which need not contain the signatures of more than one party, and all such counterparts taken together shall constitute one\nand the same instrument. Signatures on this Agreement may be communicated by facsimile transmission and shall be binding upon the parties transmitting the same by facsimile transmission. Counterparts with original signatures shall be\nmailed to the other parties within three (3) calendar days of the applicable facsimile transmission; PROVIDED, that the failure to provide the original counterpart shall have no effect on the validity or the binding nature of this Agreement.\n[SIGNATURES ON FOLLOWING PAGE]\n6\nTHE PARTIES HERETO ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT , AND AGREE TO BE BOUND BY ITS TERMS. They further acknowledge that they have exercised\ndue diligence in reviewing this Agreement, and that each has had adequate opportunity to consult with legal counsel or other advisors to the extent that each deemed such consultation necessary.\nIN WITNESS WHEREOF, Buyer and Harcke have executed this Agreement effective for all purposes as of the Effective Date.\n“BUYER”\n“HARCKE”\nHAYNES WIRE COMPANY\nBy:\n/s/Marcel Martin\nBy:\n/s/Richard Harcke\nMarcel Martin, Vice President-Finance,\nRichard Harcke\nChief Financial Officer and Treasurer\n7
+0ea36c66d9ecce62618e9de54216dd71.pdf	effective_date jurisdiction party	Exhibit 10.8\nCLOVIS ONCOLOGY, INC.\nAT-WILL EMPLOYMENT, CONFIDENTIAL INFORMATION,\nINVENTION ASSIGNMENT, AND ARBITRATION AGREEMENT\nAs a condition of my employment with Clovis Oncology, Inc., its subsidiaries, affiliates, successors or assigns (together, the\n“Company”), and in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid\nto me by Company, I agree to the following provisions of this Clovis Oncology, Inc. At-Will Employment, Confidential Information,\nInvention Assignment, and Arbitration Agreement (this “Agreement”):\n1. At-Will Employment\nI UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR NO SPECIFIED\nTERM AND CONSTITUTES “AT-WILL” EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO THE\nCONTRARY IS UNAUTHORIZED AND NOT VALID UNLESS IN WRITING AND SIGNED BY THE PRESIDENT OR CEO\nOF CLOVIS ONCOLOGY, INC.. ACCORDINGLY, I ACKNOWLEDGE THAT MY EMPLOYMENT RELATIONSHIP MAY BE\nTERMINATED AT ANY TIME, WITH OR WITHOUT GOOD CAUSE OR FOR ANY OR NO CAUSE, AT MY OPTION OR AT\nTHE OPTION OF THE COMPANY, WITH OR WITHOUT NOTICE. I FURTHER ACKNOWLEDGE THAT THE COMPANY\nMAY MODIFY JOB TITLES, SALARIES, AND BENEFITS FROM TIME TO TIME AS IT DEEMS NECESSARY.\n2. Confidentiality\nA. Definition of Confidential Information. I understand that “Company Confidential Information” means information that\nthe Company has or will develop, acquire, create, compile, discover or own, that has value in or to the Company’s business which is\nnot generally known and which the Company wishes to maintain as confidential. Company Confidential Information includes both\ninformation disclosed by the Company to me, and information developed or learned by me during the course of my employment with\nCompany. Company Confidential Information also includes all information of which the unauthorized disclosure could be\ndetrimental to the interests of Company, whether or not such information is identified as Company Confidential Information. By\nexample, and without limitation, Company Confidential Information includes any and all non-public information that relates to the\nactual or anticipated business and/or products, research or development of the Company, or to the Company’s technical data, trade\nsecrets, or know-how, including, but not limited to, research, product plans, or other information regarding the Company’s products\nor services and markets therefor, customer lists and customers (including, but not limited to, customers of the Company on which I\ncalled or with which I may become acquainted during the term of my employment), software, developments, inventions, processes,\nformulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, and other business\ninformation disclosed by the Company either directly or indirectly in writing, orally or\nby drawings or inspection of premises, parts, equipment, or other Company property. Notwithstanding the foregoing, Company\nConfidential Information shall not include any such information which I can establish (i) was publicly known or made generally\navailable prior to the time of disclosure by Company to me; (ii) becomes publicly known or made generally available after disclosure\nby Company to me through no wrongful action or omission by me; or (iii) is in my rightful possession, without confidentiality\nobligations, at the time of disclosure by Company as shown by my then-contemporaneous written records. I understand that nothing\nin this Agreement is intended to limit employees’ rights to discuss the terms, wages, and working conditions of their employment, as\nprotected by applicable law.\nB. Nonuse and Nondisclosure. I agree that during and after my employment with the Company, I will hold in the strictest\nconfidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of Company Confidential Information,\nand I will not (i) use the Company Confidential Information for any purpose whatsoever other than for the benefit of the Company in\nthe course of my employment, or (ii) disclose the Company Confidential Information to any third party without the prior written\nauthorization of the President, CEO, or the Board of Directors of the Company. Prior to disclosure when compelled by applicable\nlaw, I shall provide prior written notice to the President, CEO, and General Counsel of Clovis Oncology, Inc. (as applicable). I agree\nthat I obtain no title to any Company Confidential Information, and that as between Company and myself, Clovis Oncology, Inc.\nretains all Confidential Information as the sole property of Clovis Oncology, Inc.. I understand that my unauthorized use or disclosure\nof Company Confidential Information during my employment may lead to disciplinary action, up to and including immediate\ntermination and legal action by the Company. I understand that my obligations under this Section 2.B shall continue after termination\nof my employment.\nC. Former Employer Confidential Information. I agree that during my employment with the Company, I will not improperly\nuse, disclose, or induce the Company to use any proprietary information or trade secrets of any former employer or other person or\nentity with which I have an obligation to keep in confidence. I further agree that I will not bring onto the Company’s premises or\ntransfer onto the Company’s technology systems any unpublished document, proprietary information, or trade secrets belonging to\nany such third party unless disclosure to, and use by, the Company has been consented to in writing by such third party.\nD. Third Party Information. I recognize that the Company has received and in the future will receive from third parties\nassociated with the Company, e.g ., the Company’s customers, suppliers, licensors, licensees, partners, or collaborators (“Associated\nThird Parties”), their confidential or proprietary information (“Associated Third Party Confidential Information”) subject to a\nduty on the Company’s part to maintain the confidentiality of such Associated Third Party Confidential Information and to use it only\nfor certain limited purposes. By way of example, Associated Third Party Confidential Information may include the habits or practices\nof Associated Third Parties, the technology of Associated Third Parties, requirements\nPage2of15\nof Associated Third Parties, and information related to the business conducted between the Company and such Associated Third\nParties. I agree at all times during my employment with the Company and thereafter, that I owe the Company and its Associated\nThird Parties a duty to hold all such Associated Third Party Confidential Information in the strictest confidence, and not to use it or to\ndisclose it to any person, firm, corporation, or other third party except as necessary in carrying out my work for the Company\nconsistent with the Company’s agreement with such Associated Third Parties. I further agree to comply with any and all Company\npolicies and guidelines that may be adopted from time to time regarding Associated Third Parties and Associated Third Party\nConfidential Information. I understand that my unauthorized use or disclosure of Associated Third Party Confidential Information or\nviolation of any Company policies during my employment may lead to disciplinary action, up to and including immediate termination\nand legal action by the Company.\n3. Ownership\nA. Assignment of Inventions. As between Company and myself, I agree that all right, title, and interest in and to any and\ncopyrightable material, notes, records, drawings, designs, inventions, improvements, ideas, developments, discoveries, processes, and\ntrade secrets conceived, discovered, authored, invented, developed or reduced to practice by me, solely or in collaboration with\nothers, during the period of time I am in the employ of the Company (including during my off-duty hours), or with the use of\nCompany’s equipment, supplies, facilities, or Company Confidential Information, and any copyrights, patents, trade secrets, mask\nwork rights or other intellectual property rights relating to the foregoing, except as provided in Section 3.G below (collectively,\n“Inventions”), are the sole property of Clovis Oncology, Inc. I also agree to promptly make full written disclosure to Clovis\nOncology, Inc. of any Inventions, and to deliver and assign and hereby irrevocably assign fully to Clovis Oncology, Inc. all of my\nright, title and interest in and to Inventions. I agree that this assignment includes a present conveyance to Clovis Oncology, Inc. of\nownership of Inventions that are not yet in existence. I further acknowledge that all original works of authorship that are made by me\n(solely or jointly with others) within the scope of and during the period of my employment with the Company and that are protectable\nby copyright are “works made for hire,” as that term is defined in the United States Copyright Act. I understand and agree that the\ndecision whether or not to commercialize or market any Inventions is within the Company’s sole discretion and for the Company’s\nsole benefit, and that no royalty or other consideration will be due to me as a result of the Company’s efforts to commercialize or\nmarket any such Inventions.\nB. Pre-Existing Materials. I have attached hereto as Exhibit A, a list describing all inventions, discoveries, original works of\nauthorship, developments, improvements, trade secrets and other proprietary information or intellectual property rights owned by me\nor in which I have an interest prior to, or separate from, my employment with the Company and which relate to the Company’s\nproposed business, products, or research and development (“Prior Inventions”); or, if no such list is attached, I represent and warrant\nthat there are no such Prior Inventions. Furthermore, I represent and warrant that if any Prior Inventions are included on\nPage3of15\nExhibit A, they will not materially affect my ability to perform all obligations under this Agreement. I will inform Clovis Oncology,\nInc. in writing before incorporating such Prior Inventions into any Invention or otherwise utilizing such Prior Invention in the course\nof my employment with the Company, and the Company is hereby granted a nonexclusive, royalty-free, perpetual, irrevocable,\ntransferable worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell,\nreproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Prior Inventions,\nwithout restriction, including, without limitation, as part of or in connection with such Invention, and to practice any method related\nthereto. I will not incorporate any invention, improvement, development, concept, discovery, work of authorship or other proprietary\ninformation owned by any third party into any Invention without Clovis Oncology, Inc.’s prior written permission.\nC. Moral Rights. Any assignment to Clovis Oncology, Inc. of Inventions includes all rights of attribution, paternity, integrity,\nmodification, disclosure and withdrawal, and any other rights throughout the world that may be known as or referred to as “moral\nrights,” “artist’s rights,” “droit moral,” or the like (collectively, “Moral Rights”). To the extent that Moral Rights cannot be assigned\nunder applicable law, I hereby waive and agree not to enforce any and all Moral Rights, including, without limitation, any limitation\non subsequent modification, to the extent permitted under applicable law.\nD. Maintenance of Records. I agree to keep and maintain adequate, current, accurate, and authentic written records of all\nInventions made by me (solely or jointly with others) during the term of my employment with the Company. The records will be in\nthe form of notes, sketches, drawings, electronic files, reports, or any other format that may be specified by the Company. As\nbetween Company and myself, the records are and will be available to and remain the sole property of Clovis Oncology, Inc. at all\ntimes.\nE. Further Assurances. I agree to assist the Company, or its designee, at the Company’s expense, in every proper way to secure\nthe Company’s rights in the Inventions in any and all countries, including the disclosure to the Company of all pertinent information\nand data with respect thereto, the execution of all applications, specifications, oaths, assignments, and all other instruments that the\nCompany shall deem proper or necessary in order to apply for, register, obtain, maintain, defend, and enforce such rights, and in\norder to deliver, assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title, and\ninterest in and to all Inventions, and testifying in a suit or other proceeding relating to such Inventions. I further agree that my\nobligations under this Section 3.E shall continue after the termination of this Agreement.\nF. Attorney-in-Fact. I agree that, if the Company is unable because of my unavailability, mental or physical incapacity, or for\nany other reason to secure my signature with respect to any Inventions, including, without limitation, for the purpose of applying for\nor pursuing any application for any United States or foreign patents or mask work or copyright registrations covering the Inventions\nassigned to Clovis Oncology, Inc. in Section 3.A, then I\nPage4of15\nhereby irrevocably designate and appoint the Company and its duly authorized officers and agents as my agent and attorney-in-fact,\nto act for and on my behalf to execute and file any papers and oaths, and to do all other lawfully permitted acts with respect to such\nInventions to further the prosecution and issuance of patents, copyright and mask work registrations with the same legal force and\neffect as if executed by me. This power of attorney shall be deemed coupled with an interest, and shall be irrevocable.\nG. Exception to Assignments. I UNDERSTAND THAT THE PROVISIONS OF THIS AGREEMENT REQUIRING\nASSIGNMENT OF INVENTIONS TO CLOVIS ONCOLOGY, INC. DO NOT APPLY TO ANY INVENTION THAT QUALIFIES\nFULLY UNDER THE PROVISIONS OF THE COLORADO LABOR CODE. I WILL ADVISE CLOVIS ONCOLOGY, INC.\nPROMPTLY IN WRITING OF ANY INVENTIONS THAT I BELIEVE MEET THE CRITERIA IN THE COLORADO LABOR\nCODE AND ARE NOT OTHERWISE DISCLOSED ON EXHIBIT A.\n4. Conflicting Obligations\nA. Current Obligations. I agree that during the term of my employment with the Company, I will not engage in or undertake\nany other employment, occupation, consulting relationship, or commitment that is directly related to the business in which the\nCompany is now involved or becomes involved or has plans to become involved, nor will I engage in any other activities that conflict\nwith my obligations to the Company.\nB. Prior Relationships. Without limiting Section 4.A, I represent and warrant that I have no other agreements, relationships, or\ncommitments to any other person or entity that conflict with the provisions of this Agreement, my obligations to the Company under\nthis Agreement, or my ability to become employed and perform the services for which I am being hired by the Company. I further\nagree that if I have signed a confidentiality agreement or similar type of agreement with any former employer or other entity, I will\ncomply with the terms of any such agreement to the extent that its terms are lawful under applicable law. I represent and warrant that\nafter undertaking a careful search (including searches of my computers, cell phones, electronic devices, and documents), I have\nreturned all property and confidential information belonging to all prior employers (and/or other third parties I have performed\nservices for in accordance with the terms of my applicable agreement). Moreover, I agree to fully indemnify the Company, its\ndirectors, officers, agents, employees, investors, shareholders, administrators, affiliates, divisions, subsidiaries, predecessor and\nsuccessor corporations, and assigns for all verdicts, judgments, settlements, and other losses incurred by any of them resulting from\nmy breach of my obligations under any agreement with a third party to which I am a party or obligation to which I am bound, as well\nas any reasonable attorneys’ fees and costs if the plaintiff is the prevailing party in such an action, except as prohibited by law.\nPage5of15\n5. Return of Company Materials\nUpon separation from employment with the Company, on Company’s earlier request during my employment, or at any time\nsubsequent to my employment upon demand from the Company, I will immediately deliver to Clovis Oncology, Inc., and will not\nkeep in my possession, recreate, or deliver to anyone else, any and all Company property, including, but not limited to, Company\nConfidential Information, Associated Third Party Confidential Information, all devices and equipment belonging to the Company\n(including computers, handheld electronic devices, telephone equipment, and other electronic devices), all tangible embodiments of\nthe Inventions, all electronically stored information and passwords to access such property, Company credit cards, records, data,\nnotes, notebooks, reports, files, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials,\nphotographs, charts, any other documents and property, and reproductions of any of the foregoing items, including, without\nlimitation, those records maintained pursuant to Section 3.D. I also consent to an exit interview to confirm my compliance with this\nArticle 5.\n6. Termination Certification\nUpon separation from employment with the Company, I agree to immediately sign and deliver to the Company the “Termination\nCertification” attached hereto as Exhibit B. I also agree to keep Clovis Oncology, Inc. advised of my home and business address for a\nperiod of three (3) years after termination of my employment with the Company, so that the Company can contact me regarding my\ncontinuing obligations provided by this Agreement.\n7. Notification of New Employer\nIn the event that I leave the employ of the Company, I hereby grant consent to notification by the Company to my new employer\nabout my obligations under this Agreement.\n8. Solicitation of Employees\nTo the fullest extent permitted under applicable law, I agree that during my employment and for a period of twelve (12) months\nimmediately following the termination of my relationship with the Company for any reason, whether voluntary or involuntary, with\nor without cause, I will not directly or indirectly solicit any of the Company’s employees to leave their employment at the Company.\nI agree that nothing in this Article 8 shall affect my continuing obligations under this Agreement during and after this twelve\n(12) month period, including, without limitation, my obligations under Article 2.\n9. Conflict of Interest Guidelines\nI agree to diligently adhere to all policies of the Company, including the Company’s insider trading policies and the Company’s\nConflict of Interest Guidelines. A copy of the Company’s current Conflict of Interest Guidelines is attached as Exhibit C hereto, but I\nunderstand that these Conflict of Interest Guidelines may be revised from time to time during my employment.\nPage6of15\n10. Representations\nWithout limiting my obligations under Section 3.E above, I agree to execute any proper oath or verify any proper document\nrequired to carry out the terms of this Agreement. I represent and warrant that my performance of all the terms of this Agreement will\nnot breach any agreement to keep in confidence information acquired by me in confidence or in trust prior to my employment by the\nCompany. I hereby represent and warrant that I have not entered into, and I will not enter into, any oral or written agreement in\nconflict herewith.\n11. Audit\nI acknowledge that I have no reasonable expectation of privacy in any computer, technology system, email, handheld device,\ntelephone, voicemail, or documents that are used to conduct the business of the Company. All information, data, and messages\ncreated, received, sent, or stored in these systems are, at all times, the property of the Company. As such, the Company has the right\nto audit and search all such items and systems, without further notice to me, to ensure that the Company is licensed to use the\nsoftware on the Company’s devices in compliance with the Company’s software licensing policies, to ensure compliance with the\nCompany’s policies, and for any other business-related purposes in the Company’s sole discretion. I understand that I am not\npermitted to add any unlicensed, unauthorized, or non-compliant applications to the Company’s technology systems, including,\nwithout limitation, open source or free software not authorized by the Company, and that I shall refrain from copying unlicensed\nsoftware onto the Company’s technology systems or using non-licensed software or websites. I understand that it is my responsibility\nto comply with the Company’s policies governing use of the Company’s documents and the internet, email, telephone, and\ntechnology systems to which I will have access in connection with my employment.\nI am aware that the Company has or may acquire software and systems that are capable of monitoring and recording all network\ntraffic to and from any computer I may use. The Company reserves the right to access, review, copy, and delete any of the\ninformation, data, or messages accessed through these systems with or without notice to me and/or in my absence. This includes, but\nis not limited to, all e-mail messages sent or received, all website visits, all chat sessions, all news group activity (including groups\nvisited, messages read, and postings by me), and all file transfers into and out of the Company’s internal networks. The Company\nfurther reserves the right to retrieve previously deleted messages from e-mail or voicemail and monitor usage of the Internet,\nincluding websites visited and any information I have downloaded. In addition, the Company may review Internet and technology\nsystems activity and analyze usage patterns, and may choose to publicize this data to assure that technology systems are devoted to\nlegitimate business purposes.\nPage7of15\n12. Arbitration and Equitable Relief\nA. Arbitration. IN CONSIDERATION OF MY EMPLOYMENT WITH THE COMPANY, ITS PROMISE TO ARBITRATE\nALL EMPLOYMENT-RELATED DISPUTES, AND MY RECEIPT OF THE COMPENSATION, PAY RAISES, AND OTHER\nBENEFITS PAID TO ME BY THE COMPANY, AT PRESENT AND IN THE FUTURE, I AGREE THAT ANY AND ALL\nCONTROVERSIES, CLAIMS, OR DISPUTES WITH ANYONE (INCLUDING THE COMPANY AND ANY EMPLOYEE,\nOFFICER, DIRECTOR, SHAREHOLDER, OR BENEFIT PLAN OF THE COMPANY, IN THEIR CAPACITY AS SUCH OR\nOTHERWISE), WHETHER BROUGHT ON AN INDIVIDUAL, GROUP, OR CLASS BASIS, ARISING OUT OF, RELATING\nTO, OR RESULTING FROM MY EMPLOYMENT WITH THE COMPANY OR THE TERMINATION OF MY EMPLOYMENT\nWITH THE COMPANY, INCLUDING ANY BREACH OF THIS AGREEMENT, SHALL BE SUBJECT TO BINDING\nARBITRATION UNDER THE ARBITRATION RULES SET FORTH IN COLORADO CODE OF CIVIL PROCEDURE (THE\n“ACT”), AND PURSUANT TO COLORADO LAW. THE FEDERAL ARBITRATION ACT SHALL CONTINUE TO APPLY\nWITH FULL FORCE AND EFFECT NOTWITHSTANDING THE APPLICATION OF PROCEDURAL RULES SET FORTH IN\nTHE ACT. DISPUTES THAT I AGREE TO ARBITRATE, AND THEREBY AGREE TO WAIVE ANY RIGHT TO A\nTRIAL BY JURY, INCLUDE ANY STATUTORY CLAIMS UNDER LOCAL, STATE, OR FEDERAL LAW, INCLUDING,\nBUT NOT LIMITED TO, CLAIMS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE AMERICANS\nWITH DISABILITIES ACT OF 1990, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE OLDER\nWORKERS BENEFIT PROTECTION ACT, THE SARBANES-OXLEY ACT, THE WORKER ADJUSTMENT AND\nRETRAINING NOTIFICATION ACT, THE FAMILY AND MEDICAL LEAVE ACT, THE COLORADO LABOR CODE,\nCLAIMS OF HARASSMENT, DISCRIMINATION, AND WRONGFUL TERMINATION, AND ANY STATUTORY OR\nCOMMON LAW CLAIMS. I FURTHER UNDERSTAND THAT THIS AGREEMENT TO ARBITRATE ALSO APPLIES TO\nANY DISPUTES THAT THE COMPANY MAY HAVE WITH ME.\nB. Procedure. I AGREE THAT ANY ARBITRATION WILL BE ADMINISTERED BY JUDICIAL ARBITRATION &\nMEDIATION SERVICES, INC. (“JAMS”), PURSUANT TO ITS EMPLOYMENT ARBITRATION RULES & PROCEDURES\n(THE “JAMS RULES”). I AGREE THAT THE ARBITRATOR SHALL HAVE THE POWER TO DECIDE ANY MOTIONS\nBROUGHT BY ANY PARTY TO THE ARBITRATION, INCLUDING MOTIONS FOR SUMMARY JUDGMENT AND/OR\nADJUDICATION, MOTIONS TO DISMISS AND DEMURRERS, AND MOTIONS FOR CLASS CERTIFICATION, PRIOR TO\nANY ARBITRATION HEARING. I AGREE THAT THE ARBITRATOR SHALL ISSUE A WRITTEN DECISION ON THE\nMERITS. I ALSO AGREE THAT THE ARBITRATOR SHALL HAVE THE POWER TO AWARD ANY REMEDIES\nAVAILABLE UNDER APPLICABLE LAW, AND THAT THE ARBITRATOR SHALL AWARD ATTORNEYS’ FEES AND\nCOSTS TO THE PREVAILING PARTY, EXCEPT AS PROHIBITED BY LAW. I AGREE THAT THE DECREE OR AWARD\nRENDERED BY THE ARBITRATOR MAY BE ENTERED AS A FINAL AND BINDING JUDGMENT IN\nPage8of15\nANY COURT HAVING JURISDICTION THEREOF. I UNDERSTAND THAT THE COMPANY WILL PAY FOR ANY\nADMINISTRATIVE OR HEARING FEES CHARGED BY THE ARBITRATOR OR JAMS EXCEPT THAT I SHALL PAY ANY\nFILING FEES ASSOCIATED WITH ANY ARBITRATION THAT I INITIATE, BUT ONLY SO MUCH OF THE FILING FEES\nAS I WOULD HAVE INSTEAD PAID HAD I FILED A COMPLAINT IN A COURT OF LAW. I AGREE THAT THE\nARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN ACCORDANCE WITH COLORADO LAW,\nINCLUDING THE COLORADO CODE OF CIVIL PROCEDURE, AND THAT THE ARBITRATOR SHALL APPLY\nSUBSTANTIVE AND PROCEDURAL COLORADO LAW TO ANY DISPUTE OR CLAIM, WITHOUT REFERENCE TO\nRULES OF CONFLICT OF LAW. TO THE EXTENT THAT THE JAMS RULES CONFLICT WITH COLORADO LAW,\nCOLORADO LAW SHALL TAKE PRECEDENCE. I AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT\nSHALL BE CONDUCTED IN COLORADO.\nC. Remedy. EXCEPT AS PROVIDED BY THE ACT AND THIS AGREEMENT, ARBITRATION SHALL BE THE SOLE,\nEXCLUSIVE, AND FINAL REMEDY FOR ANY DISPUTE BETWEEN ME AND THE COMPANY. ACCORDINGLY, EXCEPT\nAS PROVIDED FOR BY THE ACT AND THIS AGREEMENT, NEITHER I NOR THE COMPANY WILL BE PERMITTED TO\nPURSUE COURT ACTION REGARDING CLAIMS THAT ARE SUBJECT TO ARBITRATION.\nD. Administrative Relief. I UNDERSTAND THAT THIS AGREEMENT DOES NOT PROHIBIT ME FROM PURSUING\nAN ADMINISTRATIVE CLAIM WITH A LOCAL, STATE, OR FEDERAL ADMINISTRATIVE BODY OR GOVERNMENT\nAGENCY THAT IS AUTHORIZED TO ENFORCE OR ADMINISTER LAWS RELATED TO EMPLOYMENT, INCLUDING,\nBUT NOT LIMITED TO, THE DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, THE EQUAL EMPLOYMENT\nOPPORTUNITY COMMISSION, THE NATIONAL LABOR RELATIONS BOARD, OR THE WORKERS’ COMPENSATION\nBOARD. THIS AGREEMENT DOES, HOWEVER, PRECLUDE ME FROM PURSUING COURT ACTION REGARDING ANY\nSUCH CLAIM, EXCEPT AS PERMITTED BY LAW.\nE. Voluntary Nature of Agreement. I ACKNOWLEDGE AND AGREE THAT I AM EXECUTING THIS AGREEMENT\nVOLUNTARILY AND WITHOUT ANY DURESS OR UNDUE INFLUENCE BY THE COMPANY OR ANYONE ELSE. I\nFURTHER ACKNOWLEDGE AND AGREE THAT I HAVE CAREFULLY READ THIS AGREEMENT AND THAT I HAVE\nASKED ANY QUESTIONS NEEDED FOR ME TO UNDERSTAND THE TERMS, CONSEQUENCES, AND BINDING EFFECT\nOF THIS AGREEMENT AND FULLY UNDERSTAND IT, INCLUDING THAT I AM WAIVING MY RIGHT TO A JURY\nTRIAL. FINALLY, I AGREE THAT I HAVE BEEN PROVIDED AN OPPORTUNITY TO SEEK THE ADVICE OF AN\nATTORNEY OF MY CHOICE BEFORE SIGNING THIS AGREEMENT.\nPage9of15\n13. Miscellaneous\nA. Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the State of Colorado\nwithout regard to Colorado’s conflicts of law rules that may result in the application of the laws of any jurisdiction other than\nColorado. To the extent that any lawsuit is permitted under this Agreement, I hereby expressly consent to the personal and exclusive\njurisdiction and venue of the state and federal courts located in Colorado for any lawsuit filed against me by the Company.\nB. Assignability. This Agreement will be binding upon my heirs, executors, assigns, administrators, and other legal\nrepresentatives, and will be for the benefit of the Company, its successors, and its assigns. There are no intended third-party\nbeneficiaries to this Agreement, except as may be expressly otherwise stated. Notwithstanding anything to the contrary herein, Clovis\nOncology, Inc. may assign this Agreement and its rights and obligations under this Agreement to any successor to all or substantially\nall of Clovis Oncology, Inc.’s relevant assets, whether by merger, consolidation, reorganization, reincorporation, sale of assets or\nstock, or otherwise.\nC. Entire Agreement. This Agreement, together with the Exhibits herein and any executed written offer letter between me and\nthe Company, to the extent such materials are not in conflict with this Agreement, sets forth the entire agreement and understanding\nbetween the Company and me with respect to the subject matter herein and supersedes all prior written and oral agreements,\ndiscussions, or representations between us, including, but not limited to, any representations made during my interview(s) or\nrelocation negotiations. I represent and warrant that I am not relying on any statement or representation not contained in this\nAgreement. Any subsequent change or changes in my duties, salary, or compensation will not affect the validity or scope of this\nAgreement.\nD. Headings. Headings are used in this Agreement for reference only and shall not be considered when interpreting this\nAgreement.\nE. Severability. If a court or other body of competent jurisdiction finds, or the Parties mutually believe, any provision of this\nAgreement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible so\nas to effect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.\nF. Modification, Waiver. No modification of or amendment to this Agreement, nor any waiver of any rights under this\nAgreement, will be effective unless in a writing signed by the President or CEO of Clovis Oncology, Inc. and me. Waiver by Clovis\nOncology, Inc. of a breach of any provision of this Agreement will not operate as a waiver of any other or subsequent breach.\nPage 10 of 15\nG. Survivorship. The rights and obligations of the parties to this Agreement will survive termination of my employment with\nthe Company.\nDate: 5/12/09\n/s/ Patrick J. Mahaffy\nSignature\nPatrick J. Mahaffy\nName of Employee (typed or printed)\nWitness:\nSignature\nName (typed or printed)\nPage 11 of 15\nEXHIBIT A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nIdentifying Number or Brief\nTitle\nDate\nDescription\n___\nNo inventions or improvements\n___\nAdditional Sheets Attached\nDate: 5/12/09\nPatrick J. Mahaffy\nSignature\nPatrick J. Mahaffy\nName of Employee (typed or printed)\nPage 12 of 15\nEXHIBIT B\nCLOVIS ONCOLOGY, INC. TERMINATION CERTIFICATION\nThis is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports,\nproposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment, any other documents or\nproperty, or reproductions of any and all aforementioned items belonging to Clovis Oncology, Inc., its subsidiaries, affiliates,\nsuccessors or assigns (together, the “Company”).\nI further certify that I have complied with all the terms of the Company’s At-Will Employment, Confidential Information,\nInvention Assignment, and Arbitration Agreement signed by me, including the reporting of any inventions and original works of\nauthorship (as defined therein) conceived or made by me (solely or jointly with others), as covered by that agreement.\nI further agree that, in compliance with the At-Will Employment, Confidential Information, Invention Assignment, and\nArbitration Agreement, I will preserve as confidential all Company Confidential Information and Associated Third Party Confidential\nInformation, including trade secrets, confidential knowledge, data, or other proprietary information relating to products, processes,\nknow-how, designs, formulas, developmental or experimental work, computer programs, databases, other original works of\nauthorship, customer lists, business plans, financial information, or other subject matter pertaining to any business of the Company or\nany of its employees, clients, consultants, or licensees.\nI also agree that for twelve (12) months from this date, I will not directly or indirectly solicit any of the Company’s employees to\nleave their employment at the Company. I agree that nothing in this paragraph shall affect my continuing obligations under the\nAt-Will Employment, Confidential Information, Invention Assignment, and Arbitration Agreement during and after this twelve\n(12) month period, including, without limitation, my obligations under Article 2 (Confidentiality) thereof.\nAfter leaving the Company’s employment, I will be employed by __________________________________________________\nin the position of ____________________________________________________________________.\nDate:\nSignature\nName of Employee (typed or printed)\nAddress for Notifications:\nPage 13 of 15\nEXHIBIT C\nCLOVIS ONCOLOGY, INC. CONFLICT OF INTEREST GUIDELINES\nIt is the policy of Clovis Oncology, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere\nto the highest principles of business ethics. Accordingly, all officers, employees, and independent contractors must avoid activities\nthat are in conflict, or give the appearance of being in conflict, with these principles and with the interests of the Company. The\nfollowing are potentially compromising situations that must be avoided:\n1. Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is\na violation of this policy whether or not for personal gain and whether or not harm to the Company is intended. (The At-Will\nEmployment, Confidential Information, Invention Assignment, and Arbitration Agreement elaborates on this principle and is a\nbinding agreement.)\n2. Accepting or offering substantial gifts, excessive entertainment, favors, or payments that may be deemed to constitute undue\ninfluence or otherwise be improper or embarrassing to the Company.\n3. Participating in civic or professional organizations that might involve divulging confidential information of the Company.\n4. Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family\nrelationship or is or appears to be a personal or social involvement.\n5. Initiating or approving any form of personal or social harassment of employees.\n6. Investing or holding outside directorship in suppliers, customers, or competing companies, including financial speculations,\nwhere such investment or directorship might influence in any manner a decision or course of action of the Company.\n7. Borrowing from or lending to employees, customers, or suppliers.\n8. Acquiring real estate of interest to the Company.\n9. Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent\nemployer or other person or entity with whom obligations of confidentiality exist.\n10. Unlawfully discussing prices, costs, customers, sales, or markets with competing companies or their employees.\n11. Making any unlawful agreement with distributors with respect to prices.\nPage 14 of 15\n12. Improperly using or authorizing the use of any inventions that are the subject of patent claims of any other person or entity.\n13. Engaging in any conduct that is not in the best interest of the Company.\nEach officer, employee, and independent contractor must take every necessary action to ensure compliance with these guidelines\nand to bring problem areas to the attention of higher management for review. Violations of this conflict of interest policy may result\nin discharge without warning.\nPage 15 of 15	Exhibit 10.8\nCLOVIS ONCOLOGY, INC.\nAT-WILL EMPLOYMENT! CONFIDENTIAL INFORMATION!\nINVENTION ASSIG NMENTl AND ARBITRATION AGREEMENT\nAs a condition of my employment with Clovis Oncology, Inc., its subsidiaries, affiliates, successors or assigns (together, the\n”C ompany"), and in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid\nto me by Company, I agree to the following provisions of this Clovis Oncology, Inc. At—Will Employment, Confidential Information,\nInvention A ssignment, and Arbitration A greement (this ”Agreement”):\n1. At-W ill E mployment\nI UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR NO SPECIFIED\nTERM AND CONSTITUTES ”AT-WILL" EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO THE\nCONTRARY IS UNAUTHORIZED AND NOT VALID UNLESS IN WRITING AND SIGNED BY THE PRESIDENT OR CEO\nOF CLOVIS ONCOLOGY, INC.. ACCORDINGLY, IACKNOWLEDGE THAT MY EMPLOYMENT RELATIONSHIP MAY BE\nTERMINATED AT ANY TIME, WITH OR WITHOUT GOOD CAUSE OR FOR ANY OR NO CAUSE, AT MY OPTION OR AT\nTHE OPTION OF THE COMPANY, WITH OR WITHOUT NOTICE. I FURTHER ACKNOWLEDGE THAT THE COMPANY\nMAY MODIFY JOB TITLES, SALARIES, AND BENEFITS FROM TIME TO TIME AS IT DEEMS NECESSARY.\n2. C onfidentiality\nA. D efinition of C onfidential Information. I understand that ”Company Confidential Information” means information that\nthe Company has or will develop, acquire, create, compile, discover or own, that has value in or to the Company' s business which is\nnot generally known and which the Company wishes to maintain as confidential. Company Confidential Information includes both\ninformation disclosed by the Company to me, and information developed or learned by me during the course of my employment with\nCompany. Company Confidential Information also includes all information of which the unauthorized disclosure could be\ndetrimental to the interests of Company, whether or not such information is identified as Company Confidential Information. By\nexample, and without limitation, Company Confidential Information includes any and all non-public information that relates to the\nactual or anticipated business and/or products, research or development of the Company, or to the Company's technical data, trade\nsecrets, or know-how, including, but not limited to, research, product plans, or other information regarding the Company' s products\nor services and markets therefor, customer lists and customers (including, but not limited to, customers of the Company on which I\ncalled or with which I may become acquainted during the term of my employment), software, developments, inventions, processes,\nformulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, and other business\ninformation disclosed by the Company either directly or indirectly in writing, orally or\nby drawings or inspection of premises, parts, equipment, or other Company property. Notwithstanding the foregoing, Company\nConfidential Information shall not include any such information which I can establish (i) was publicly known or made generally\navailable prior to the time of disclosure by Company to me; (ii) becomes publicly known or made generally available after disclosure\nby Company to me through no wrongful action or omission by me; or (iii) is in my rightful possession, without confidentiality\nobligations, at the time of disclosure by Company as shown by my then-contemporaneous written records. I understand that nothing\nin this Agreement is intended to limit employees’ rights to discuss the terms, wages, and working conditions of their employment, as\nprotected by applicable law.\nB. Nonuse and Nondisclosure. I agree that during and after my employment with the Company, I will hold in the strictest\nconfidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of Company Confidential Information,\nand I will not (i) use the Company Confidential Information for any purpose whatsoever other than for the benefit of the Company in\nthe course of my employment, or (ii) disclose the Company Confidential Information to any third party without the prior written\nauthorization of the President, CEO, or the Board of Directors of the Company. Prior to disclosure when compelled by applicable\nlaw, I shall provide prior written notice to the President, CEO, and General Counsel of Clovis Oncology, Inc. (as applicable). I agree\nthat I obtain no title to any Company Confidential Information, and that as between Company and myself, Clovis Oncology, Inc.\nretains all Confidential Information as the sole property of Clovis Oncology, Inc.. I understand that my unauthorized use or disclosure\nof Company Confidential Information during my employment may lead to disciplinary action, up to and including immediate\ntermination and legal action by the Company. I understand that my obligations under this Section 2.B shall continue after termination\nof my employment.\nC. Former Employer Confidential Information. I agree that during my employment with the Company, I will not improperly\nuse, disclose, or induce the Company to use any proprietary information or trade secrets of any former employer or other person or\nentity with which I have an obligation to keep in confidence. I further agree that I will not bring onto the Company' s premises or\ntransfer onto the Company' s technology systems any unpublished document, proprietary information, or trade secrets belonging to\nany such third party unless disclosure to, and use by, the Company has been consented to in writing by such third party.\nD. Third Party Information. I recognize that the Company has received and in the future will receive from third parties\nassociated with the Company, e.g., the Company’s customers, suppliers, licensors, licensees, partners, or collaborators (”Associated\nThird Parties”), their confidential or proprietary information (”A ssociated Third Party C onfidential Information") subject to a\nduty on the Company' s part to maintain the confidentiality of such Associated Third Party Confidential Information and to use it only\nfor certain limited purposes. By way of example, Associated Third Party Confidential Information may include the habits or practices\nof Associated Third Parties, the technology of A ssociated Third Parties, requirements\nPage 2 of 15\nof Associated Third Parties, and information related to the business conducted between the Company and such Associated Third\nParties. I agree at all times during my employment with the Company and thereafter, that I owe the Company and its Associated\nThird Parties a duty to hold all such Associated Third Party Confidential Information in the strictest confidence, and not to use it or to\ndisclose it to any person, firm, corporation, or other third party except as necessary in carrying out my work for the Company\nconsistent with the Company' s agreement with such A ssociated Third Parties. I further agree to comply with any and all Company\npolicies and guidelines that may be adopted from time to time regarding Associated Third Parties and Associated Third Party\nConfidential Information. I understand that my unauthorized use or disclosure of Associated Third Party Confidential Information or\nviolation of any Company policies during my employment may lead to disciplinary action, up to and including immediate termination\nand legal action by the Company.\n3. Ownership\nA. Assignment of Inventions. As between Company and myself, I agree that all right, title, and interest in and to any and\ncopyrightable material, notes, records, drawings, designs, inventions, improvements, ideas, developments, discoveries, processes, and\ntrade secrets conceived, discovered, authored, invented, developed or reduced to practice by me, solely or in collaboration with\nothers, during the period of time I am in the employ of the Company (including during my off- duty hours), or with the use of\nCompany' s equipment, supplies, facilities, or Company Confidential Information, and any copyrights, patents, trade secrets, mask\nwork rights or other intellectual property rights relating to the foregoing, except as provided in Section 3.6 below (collectively,\n”Inventions"), are the sole property of Clovis Oncology, Inc. I also agree to promptly make full written disclosure to Clovis\nOncology, Inc. of any Inventions, and to deliver and assign and hereby irrevocably assign fully to Clovis Oncology, Inc. all of my\nright, title and interest in and to Inventions. I agree that this assignment includes a present conveyance to Clovis Oncology, Inc. of\nownership of Inventions that are not yet in existence. I further acknowledge that all original works of authorship that are made by me\n(solely or jointly with others) within the scope of and during the period of my employment with the Company and that are protectable\nby copyright are ”works made for hire,” as that term is defined in the United States Copyright Act. I understand and agree that the\ndecision whether or not to commercialize or market any Inventions is within the Company' s sole discretion and for the Company' s\nsole benefit, and that no royalty or other consideration will be due to me as a result of the Company' s efforts to commercialize or\nmarket any such Inventions.\nB. Pre-Existing Materials. I have attached hereto as Exhibit A, a list describing all inventions, discoveries, original works of\nauthorship, developments, improvements, trade secrets and other proprietary information or intellectual property rights owned by me\nor in which I have an interest prior to, or separate from, my employment with the Company and which relate to the Company' s\nproposed business, products, or research and development (”Prior Inventions”); or, if no such list is attached, I represent and warrant\nthat there are no such Prior Inventions. Furthermore, I represent and warrant that if any Prior Inventions are included on\nPage 3 of 15\nExhibit A, they will not materially affect my ability to perform all obligations under this Agreement. I will inform Clovis Oncology,\nInc. in writing before incorporating such Prior Inventions into any Invention or otherwise utilizing such Prior Invention in the course\nof my employment with the Company, and the Company is hereby granted a nonexclusive, royalty-free, perpetual, irrevocable,\ntransferable worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell,\nreproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Prior Inventions,\nwithout restriction, including, without limitation, as part of or in connection with such Invention, and to practice any method related\nthereto. I will not incorporate any invention, improvement, development, concept, discovery, work of authorship or other proprietary\ninformation owned by any third party into any Invention without Clovis Oncology, Inc.’ s prior written permission.\nC. Moral Rights. Any assignment to Clovis Oncology, Inc. of Inventions includes all rights of attribution, paternity, integrity,\nmodification, disclosure and withdrawal, and any other rights throughout the world that may be known as or referred to as ”moral\nrights," ”artist’ s rights, ” ”droit moral,” or the like (collectively, ”Moral Rights"). To the extent that Moral Rights cannot be assigned\nunder applicable law, I hereby waive and agree not to enforce any and all Moral Rights, including, without limitation, any limitation\non subsequent modification, to the extent permitted under applicable law.\nD. Maintenance of Records. I agree to keep and maintain adequate, current, accurate, and authentic written records of all\nInventions made by me (solely or jointly with others) during the term of my employment with the Company. The records will be in\nthe form of notes, sketches, drawings, electronic files, reports, or any other format that may be specified by the Company. As\nbetween Company and myself, the records are and will be available to and remain the sole property of Clovis Oncology, Inc. at all\ntimes.\nE. Further Assurances. I agree to assist the Company, or its designee, at the Company' s expense, in every proper way to secure\nthe Company' s rights in the Inventions in any and all countries, including the disclosure to the Company of all pertinent information\nand data with respect thereto, the execution of all applications, specifications, oaths, assignments, and all other instruments that the\nCompany shall deem proper or necessary in order to apply for, register, obtain, maintain, defend, and enforce such rights, and in\norder to deliver, assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title, and\ninterest in and to all Inventions, and testifying in a suit or other proceeding relating to such Inventions. I further agree that my\nobligations under this Section 3.E shall continue after the termination of this Agreement.\nF. Attorney-in-Fact. I agree that, if the Company is unable because of my unavailability, mental or physical incapacity, or for\nany other reason to secure my signature with respect to any Inventions, including, without limitation, for the purpose of applying for\nor pursuing any application for any United States or foreign patents or mask work or copyright registrations covering the Inventions\nassigned to Clovis Oncology, Inc. in Section 3A, then I\nPage 4 of 15\nhereby irrevocably designate and appoint the Company and its duly authorized officers and agents as my agent and attorney-in-fact,\nto act for and on my behalf to execute and file any papers and oaths, and to do all other lawfully permitted acts with respect to such\nInventions to further the prosecution and issuance of patents, copyright and mask work registrations with the same legal force and\neffect as if executed by me. This power of attorney shall be deemed coupled with an interest, and shall be irrevocable.\nG. Exception t0 Assignments. I UNDERSTAND THAT THE PROVISIONS OF THIS AGREEMENT REQUIRING\nASSIGNMENT OE INVENTIONS TO CLOVIS ONCOLOGY, INC. DO NOT APPLY TO ANY INVENTION THAT QUALIFIES\nFULLY UNDER THE PROVISIONS OF THE COLORADO LABOR CODE. I WILL ADVISE CLOVIS ONCOLOGY, INC.\nPROMPTLY IN WRITING OF ANY INVENTIONS THAT I BELIEVE MEET THE CRITERIA IN THE COLORADO LABOR\nCODE AND ARE NOT OTHERWISE DISCLOSED ON EXHIBIT A.\n4. C onflicting O bligations\nA. Current Obligations. I agree that during the term of my employment with the Company, I will not engage in or undertake\nany other employment, occupation, consulting relationship, or commitment that is directly related to the business in which the\nCompany is now involved or becomes involved or has plans to become involved, nor will I engage in any other activities that conflict\nwith my obligations to the Company.\nB. Prior Relationships. Without limiting Section 4A, I represent and warrant that I have no other agreements, relationships, or\ncommitments to any other person or entity that conflict with the provisions of this Agreement, my obligations to the Company under\nthis Agreement, or my ability to become employed and perform the services for which I am being hired by the Company. I further\nagree that if I have signed a confidentiality agreement or similar type of agreement with any former employer or other entity, I will\ncomply with the terms of any such agreement to the extent that its terms are lawful under applicable law. I represent and warrant that\nafter undertaking a careful search (including searches of my computers, cell phones, electronic devices, and documents), I have\nreturned all property and confidential information belonging to all prior employers (and/or other third parties I have performed\nservices for in accordance with the terms of my applicable agreement). Moreover, I agree to fully indemnify the Company, its\ndirectors, officers, agents, employees, investors, shareholders, administrators, affiliates, divisions, subsidiaries, predecessor and\nsuccessor corporations, and assigns for all verdicts, judgments, settlements, and other losses incurred by any of them resulting from\nmy breach of my obligations under any agreement with a third party to which I am a party or obligation to which I am bound, as well\nas any reasonable attorneys’ fees and costs if the plaintiff is the prevailing party in such an action, except as prohibited by law.\nPage 5 of 15\n5. Return of C ompany Materials\nUpon separation from employment with the Company, on Company's earlier request during my employment, or at any time\nsubsequent to my employment upon demand from the Company, I will immediately deliver to Clovis Oncology, Inc., and will not\nkeep in my possession, recreate, or deliver to anyone else, any and all Company property, including, but not limited to, Company\nConfidential Information, Associated Third Party Confidential Information, all devices and equipment belonging to the Company\n(including computers, handheld electronic devices, telephone equipment, and other electronic devices), all tangible embodiments of\nthe Inventions, all electronically stored information and passwords to access such property, Company credit cards, records, data,\nnotes, notebooks, reports, files, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials,\nphotographs, charts, any other documents and property, and reproductions of any of the foregoing items, including, without\nlimitation, those records maintained pursuant to Section 3.D. I also consent to an exit interview to confirm my compliance with this\nArticle 5.\n6. Termination C ertification\nUpon separation from employment with the Company, I agree to immediately sign and deliver to the Company the ”Termination\nCertification” attached hereto as Exhibit B. I also agree to keep Clovis Oncology, Inc. advised of my home and business address for a\nperiod of three (3) years after termination of my employment with the Company, so that the Company can contact me regarding my\ncontinuing obligations provided by this Agreement.\n7. Notification of New Employer\nIn the event that I leave the employ of the Company, I hereby grant consent to notification by the Company to my new employer\nabout my obligations under this A greement.\n8. Solicitation of Employees\nTo the fullest extent permitted under applicable law, I agree that during my employment and for a period of twelve (12) months\nimmediately following the termination of my relationship with the Company for any reason, whether voluntary or involuntary, with\nor without cause, I will not directly or indirectly solicit any of the Company's employees to leave their employment at the Company.\nI agree that nothing in this Article 8 shall affect my continuing obligations under this Agreement during and after this twelve\n(12) month period, including, without limitation, my obligations under Article 2.\n9. C onflict of Interest G uidelines\nI agree to diligently adhere to all policies of the Company, including the Company' s insider trading policies and the Company’s\nConflict of Interest Guidelines. A copy of the Company' s current Conflict of Interest Guidelines is attached as Exhibit C hereto, but I\nunderstand that these Conflict of Interest Guidelines may be revised from time to time during my employment.\nPage 6 of 15\n10. Representations\nWithout limiting my obligations under Section 3.E above, I agree to execute any proper oath or verify any proper document\nrequired to carry out the terms of this Agreement. I represent and warrant that my performance of all the terms of this Agreement will\nnot breach any agreement to keep in confidence information acquired by me in confidence or in trust prior to my employment by the\nCompany. I hereby represent and warrant that l have not entered into, and I will not enter into, any oral or written agreement in\nconflict herewith.\n11. Audit\nI acknowledge that l have no reasonable expectation of privacy in any computer, technology system, email, handheld device,\ntelephone, voicemail, or documents that are used to conduct the business of the Company. All information, data, and messages\ncreated, received, sent, or stored in these systems are, at all times, the property of the Company. As such, the Company has the right\nto audit and search all such items and systems, without further notice to me, to ensure that the Company is licensed to use the\nsoftware on the Company' s devices in compliance with the Company' s software licensing policies, to ensure compliance with the\nCompany' s policies, and for any other business-related purposes in the Company's sole discretion. I understand that I am not\npermitted to add any unlicensed, unauthorized, or non-compliant applications to the Company' s technology systems, including,\nwithout limitation, open source or free software not authorized by the Company, and that I shall refrain from copying unlicensed\nsoftware onto the Company’s technology systems or using non-licensed software or websites. I understand that it is my responsibility\nto comply with the Company' s policies governing use of the Company' s documents and the intemet, email, telephone, and\ntechnology systems to which I will have access in connection with my employment.\nI am aware that the Company has or may acquire software and systems that are capable of monitoring and recording all network\ntraffic to and from any computerl may use. The Company reserves the right to access, review, copy, and delete any of the\ninformation, data, or messages accessed through these systems with or without notice to me and/or in my absence. This includes, but\nis not limited to, all e-mail messages sent or received, all website visits, all chat sessions, all news group activity (including groups\nvisited, messages read, and postings by me), and all file transfers into and out of the Company' s internal networks. The Company\nfurther reserves the right to retrieve previously deleted messages from email or voicemail and monitor usage of the lntemet,\nincluding websites visited and any information I have downloaded. In addition, the Company may review lntemet and technology\nsystems activity and analyze usage patterns, and may choose to publicize this data to assure that technology systems are devoted to\nlegitimate business purposes.\nPage 7 of 15\n12. Arbitration and Equitable Relief\nA. Arbitration. IN CONSIDERATION OF MY EMPLOYMENT WITH THE COMPANY, ITS PROMISE TO ARBITRATE\nALL EMPLOYMENT-RELATED DISPUTES, AND MY RECEIPT OF THE COMPENSATION, PAY RAISES, AND OTHER\nBENEFITS PAID TO ME BY THE COMPANY, AT PRESENT AND IN THE FUTURE, IAGREE THAT ANY AND ALL\nCONTROVERSIES, CLAIMS, OR DISPUTES WITH ANYONE (INCLUDING THE COMPANY AND ANY EMPLOYEE,\nOFFICER, DIRECTOR, SHAREHOLDER, OR BENEFIT PLAN OF THE COMPANY, IN THEIR CAPACITY AS SUCH OR\nOTHERWISE), WHETHER BROUGHT ON AN INDIVIDUAL, GROUP, OR CLASS BASIS, ARISING OUT OF, RELATING\nTO, OR RESULTING FROM MY EMPLOYMENT WITH THE COMPANY OR THE TERMINATION OF MY EMPLOYMENT\nWITH THE COMPANY, INCLUDING ANY BREACH OF THIS AGREEMENT, SHALL BE SUBJECT TO BINDING\nARBITRATION UNDER THE ARBITRATION RULES SET FORTH IN COLORADO CODE OF CIVIL PROCEDURE (THE\n”ACT"), AND PURSUANT TO COLORADO LAW. THE FEDERAL ARBITRATION ACT SHALL CONTINUE TO APPLY\nWITH FULL FORCE AND EFFECT NOTWITHSTANDING THE APPLICATION OF PROCEDURAL RULES SET FORTH IN\nTHE ACT. DISPUTES THAT IAG REE TO ARBITRATE, AND THEREBY AG REE TO WAIVE ANY RIG HT TO A\nTRIAL BY JURY, INCLUDE ANY STATUTORY CLAIMS UNDER LOCAL, STATE, OR FEDERAL LAW, INCLUDING,\nBUT NOT LIMITED TO, CLAIMS UNDER TITLE VII OF THE CIVIL RIG HTS ACT OF 1964, THE AMERICANS\nWITH DISABILITIES ACT OF 1990, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE OLDER\nWORKERS BENEFIT PROTECTION ACT, THE SARBANES-OXLEY ACT, THE WORKER ADJUSTMENT AND\nRETRAINING NOTIFICATION ACT, THE FAMILY AND MEDICAL LEAVE ACT, THE COLORADO LABOR CODE,\nCLAIMS OF HARASSMENT, DISCRIMINATION, AND WRONG FUL TERMINATION, AND ANY STATUTORY OR\nCOMMON LAW CLAIMS. I FURTHER UNDERSTAND THAT THIS AGREEMENT TO ARBITRATE ALSO APPLIES TO\nANY DISPUTES THAT THE COMPANY MAY HAVE WITH ME.\nB. Procedure. I AGREE THAT ANY ARBITRATION WILL BE ADMINISTERED BY JUDICIAL ARBITRATION &\nMEDIATION SERVICES, INC. (”JAMS"), PURSUANT TO ITS EMPLOYMENT ARBITRATION RULES & PROCEDURES\n(THE ”JAMS RULES"). IAGREE THAT THE ARBITRATOR SHALL HAVE THE POWER TO DECIDE ANY MOTIONS\nBROUGHT BY ANY PARTY TO THE ARBITRATION, INCLUDING MOTIONS FOR SUMMARY JUDGMENT AND/OR\nADJUDICATION, MOTIONS TO DISMISS AND DEMURRERS, AND MOTIONS FOR CLASS CERTIFICATION, PRIOR TO\nANY ARBITRATION HEARING. IAGREE THAT THE ARBITRATOR SHALL ISSUE A WRITTEN DECISION ON THE\nMERITS. I ALSO AGREE THAT THE ARBITRATOR SHALL HAVE THE POWER TO AWARD ANY REMEDIES\nAVAILABLE UNDER APPLICABLE LAW, AND THAT THE ARBITRATOR SHALL AWARD ATTORNEYS’ FEES AND\nCOSTS TO THE PREVAILING PARTY, EXCEPT AS PROHIBITED BY LAW. IAGREE THAT THE DECREE OR AWARD\nRENDERED BY THE ARBITRATOR MAY BE ENTERED AS A FINAL AND BINDING JUDGMENT IN\nPage 8 of 15\nANY COURT HAVING JURISDICTION THEREOF. I UNDERSTAND THAT THE COMPANY WILL PAY FOR ANY\nADMINISTRATIVE OR HEARING FEES CHARGED BY THE ARBITRATOR ORJAMS EXCEPT THAT I SHALL PAY ANY\nFILING FEES ASSOCIATED WITH ANY ARBITRATION THAT I INITIATE, BUT ONLY SO MUCH OF THE FILING FEES\nAS I WOULD HAVE INSTEAD PAID HAD I FILED A COMPLAINT IN A COURT OF LAW. IAGREE THAT THE\nARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN ACCORDANCE WITH COLORADO LAW,\nINCLUDING THE COLORADO CODE OF CIVIL PROCEDURE, AND THAT THE ARBITRATOR SHALL APPLY\nSUBSTANTIVE AND PROCEDURAL COLORADO LAW TO ANY DISPUTE OR CLAIM, WITHOUT REFERENCE TO\nRULES OF CONFLICT OF LAW. TO THE EXTENT THAT THE JAMS RULES CONFLICT WITH COLORADO LAW,\nCOLORADO LAW SHALL TAKE PRECEDENCE. I AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT\nSHALL BE CONDUCTED IN COLORADO.\nC. Remedy. EXCEPT AS PROVIDED BY THE ACT AND THIS AGREEMENT, ARBITRATION SHALL BE THE SOLE,\nEXCLUSIVE, AND FINAL REMEDY FOR ANY DISPUTE BETWEEN ME AND THE COMPANY. ACCORDINGLY, EXCEPT\nAS PROVIDED FOR BY THE ACT AND THIS AGREEMENT, NEITHER I NOR THE COMPANY WILL BE PERMITTED TO\nPURSUE COURT ACTION REGARDING CLAIMS THAT ARE SUBJECT TO ARBITRATION.\nD. Administrative Relief. I UNDERSTAND THAT THIS AGREEMENT DOES NOT PROHIBIT ME FROM PURSUING\nAN ADMINISTRATIVE CLAIM WITH A LOCAL, STATE, OR FEDERAL ADMINISTRATIVE BODY OR GOVERNMENT\nAGENCY THAT IS AUTHORIZED TO ENFORCE OR ADMINISTER LAWS RELATED TO EMPLOYMENT, INCLUDING,\nBUT NOT LIMITED TO, THE DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, THE EQUAL EMPLOYMENT\nOPPORTUNITY COMMISSION, THE NATIONAL LABOR RELATIONS BOARD, OR THE WORKERS’ COMPENSATION\nBOARD. THIS AGREEMENT DOES, HOWEVER, PRECLUDE ME FROM PURSUING COURT ACTION REGARDING ANY\nSUCH CLAIM, EXCEPT AS PERMITTED BY LAW.\nE. Voluntary Nature 0ngreement. IACKNOWLEDGE AND AGREE THAT IAM EXECUTING THIS AGREEMENT\nVOLUNTARILY AND WITHOUT ANY DURESS OR UNDUE INFLUENCE BY THE COMPANY OR ANYONE ELSE. I\nFURTHER ACKNOWLEDGE AND AGREE THAT I HAVE CAREFULLY READ THIS AGREEMENT AND THAT I HAVE\nASKED ANY QUESTIONS NEEDED FOR ME TO UNDERSTAND THE TERMS, CONSEQUENCES, AND BINDING EFFECT\nOF THIS AGREEMENT AND FULLY UNDERSTAND IT, INCLUDING THAT I AM WAIVING MY RIGHT TO A JURY\nTRIAL. FINALLY, I AGREE THAT I HAVE BEEN PROVIDED AN OPPORTUNITY TO SEEK THE ADVICE OF AN\nATTORNEY OF MY CHOICE BEFORE SIGNING THIS AGREEMENT.\nPage 9 of 15\n13. M iscellaneous\nA. G overning Law; Consent to Personal jurisdiction. This Agreement will be governed by the laws of the State of Colorado\nwithout regard to Colorado' 5 conflicts of law rules that may result in the application of the laws of any jurisdiction other than\nColorado. To the extent that any lawsuit is permitted under this Agreement, I hereby expressly consent to the personal and exclusive\njurisdiction and venue of the state and federal courts located in Colorado for any lawsuit filed against me by the Company.\nB. Assignability. This Agreement will be binding upon my heirs, executors, assigns, administrators, and other legal\nrepresentatives, and will be for the benefit of the Company, its successors, and its assigns. There are no intended third-party\nbeneficiaries to this Agreement, except as may be expressly otherwise stated. Notwithstanding anything to the contrary herein, Clovis\nOncology, Inc. may assign this Agreement and its rights and obligations under this Agreement to any successor to all or substantially\nall of Clovis Oncology, Inc.’ 5 relevant assets, whether by merger, consolidation, reorganization, reincorporation, sale of assets or\nstock, or otherwise.\nC. Entire Agreement. This Agreement, together with the Exhibits herein and any executed written offer letter between me and\nthe Company, to the extent such materials are not in conflict with this Agreement, sets forth the entire agreement and understanding\nbetween the Company and me with respect to the subject matter herein and supersedes all prior written and oral agreements,\ndiscussions, or representations between us, including, but not limited to, any representations made during my interview(s) or\nrelocation negotiations. I represent and warrant that I am not relying on any statement or representation not contained in this\nA greement. Any subsequent change or changes in my duties, salary, or compensation will not affect the validity or scope of this\nA greement.\nD. Headings. Headings are used in this Agreement for reference only and shall not be considered when interpreting this\nA greement.\nE. Severability. If a court or other body of competent jurisdiction finds, or the Parties mutually believe, any provision of this\nAgreement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible so\nas to effect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.\nF. Modification, Waiver. No modification of or amendment to this A greement, nor any waiver of any rights under this\nAgreement, will be effective unless in a writing signed by the President or CEO of Clovis Oncology, Inc. and me. Waiver by Clovis\nOncology, Inc. of a breach of any provision of this Agreement will not operate as a waiver of any other or subsequent breach.\nPage 10 of 15\nG. Survivorship. The rights and obligations of the parties to this Agreement will survive termination of my employment with\nthe Company.\nDate: 5/12/09 /s/ Patrick]. Mahaffy\nSignafire\nPatrick]. Mahaffy\name 0 mp oyee pe or pnn e\nWitness:\nSignafiire\nName (Wped or pnnfidi '\nPage 11 of 15\nEXHIBIT A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS 0F AUTHORSHIP\nIdentifying Number or Brief\nTitle D ate D escription\n___ No inventions or improvements\n___ Additional Sheets Attached\nD ate: 5/12/09 Patrick]. Mahaffy\nSignafire\nPatrick]. Mahaffy\name 0 mp oyee pe or pnn e\nPage 12 of 15\nEXHIBIT B\nCLOVIS ONCOLOGY, INC. TERMINATION CERTIFICATION\nThis is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports,\nproposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment, any other documents or\nproperty, or reproductions of any and all aforementioned items belonging to Clovis Oncology, Inc., its subsidiaries, affiliates,\nsuccessors or assigns (together, the ”C ompany").\nI further certify that I have complied with all the terms of the Company' s At—Will Employment, Confidential Information,\nInvention Assignment, and Arbitration Agreement signed by me, including the reporting of any inventions and original works of\nauthorship (as defined therein) conceived or made by me (solely or jointly with others), as covered by that agreement.\nI further agree that, in compliance with the At—Will Employment, Confidential Information, Invention A ssignment, and\nArbitration Agreement, I will preserve as confidential all Company Confidential Information and Associated Third Party Confidential\nInformation, including trade secrets, confidential knowledge, data, or other proprietary information relating to products, processes,\nknow-how, designs, formulas, developmental or experimental work, computer programs, databases, other original works of\nauthorship, customer lists, business plans, financial information, or other subject matter pertaining to any business of the Company or\nany of its employees, clients, consultants, or licensees.\nI also agree that for twelve (12) months from this date, I will not directly or indirectly solicit any of the Company’s employees to\nleave their employment at the Company. I agree that nothing in this paragraph shall affect my continuing obligations under the\nAt—Will Employment, Confidential Information, Invention A ssignment, and Arbitration A greement during and after this twelve\n(12) month period, including, without limitation, my obligations under Article 2 (Confidentiality) thereof.\nAfter leaving the Company' s employment, I will be employed by\nin the position of\n \n \nDate:\nSignafire\name 0 mp oyee pe or pnn e\nAddress for Notifications:\nPage 13 of15\nEXHIBIT C\nCLOVIS ONCOLOGY, INC. CONFLICT OF INTEREST GUIDELINES\nIt is the policy of Clovis Oncology, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere\nto the highest principles of business ethics. Accordingly, all officers, employees, and independent contractors must avoid activities\nthat are in conflict, or give the appearance of being in conflict, with these principles and with the interests of the Company. The\nfollowing are potentially compromising situations that must be avoided:\n1. Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is\na violation of this policy whether or not for personal gain and whether or not harm to the Company is intended. (The At-Will\nEmployment, Confidential Information, Invention Assignment, and Arbitration Agreement elaborates on this principle and is a\nbinding agreement.)\n2. Accepting or offering substantial gifts, excessive entertainment, favors, or payments that may be deemed to constitute undue\ninfluence or otherwise be improper or embarrassing to the Company.\n3. Participating in civic or professional organizations that might involve divulging confidential information of the Company.\n4. Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family\nrelationship or is or appears to be a personal or social involvement.\n5. Initiating or approving any form of personal or social harassment of employees.\n6. Investing or holding outside directorship in suppliers, customers, or competing companies, including financial speculations,\nwhere such investment or directorship might influence in any manner a decision or course of action of the Company.\n7. Borrowing from or lending to employees, customers, or suppliers.\n8. Acquiring real estate of interest to the Company.\n9. Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent\nemployer or other person or entity with whom obligations of confidentiality exist.\n10. Unlawfully discussing prices, costs, customers, sales, or markets with competing companies or their employees.\n11. Making any unlawful agreement with distributors with respect to prices.\nPage 14 of 15\n12. Improperly using or authorizing the use of any inventions that are the subject of patent claims of any other person or entity.\n13. Engaging in any conduct that is not in the best interest of the Company.\nEach officer, employee, and independent contractor must take every necessary action to ensure compliance with these guidelines\nand to bring problem areas to the attention of higher management for review. Violations of this conflict of interest policy may result\nin discharge without warning.\nPage 15 of15	Exhibit 10.8\nCLOVIS ONCOLOGY, INC.\nAT-WILL EMPLOYMENT CONFIDENTIAL INFORMATION,\nINVENTION ASSIGNMENT, AND ARBITRATION AGREEMENT\nAs a condition of my employment with Clovis Oncology, Inc., its subsidiaries, affiliates, successors or assigns (together, the\n"Company"), and in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid\nto\nme by Company, I agree to the following provisions of this Clovis Oncology, Inc. At-Will Employment, Confidential Information,\nInvention A ssignment, and rbitration A greement (this "Agreement"):\n1. At-Will Employment\nI UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOY MENT WITH THE COMPANY IS FOR NO SPECIFIED\nTERM AND CONSTITUTES "AT-WILL" EMPLOY MENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO THE\nCONTRARY IS NAUTHORIZED AND NOT VALID UNLESS IN WRITING AND SIGNED BY THE PRESIDENT OR CEO\nOF CLOVIS ONCOLOGY, INC.. ACCORDINGLY, IACKNOWLEDGE THAT MY EMPLOY MENT RELATIONSHIP MAY BE\nTERMINATED AT ANY TIME, WITH OR WITHOUT GOOD CAUSE OR FOR ANY OR NO CAUSE, AT MY OPTION OR AT\nTHE OPTION OF THE COMPANY, WITH OR WITHOUT NOTICE. I FURTHER ACKNOWLEDGE THAT THE COMPANY\nMAY MODIFY JOB TITLES, SALARIES, AND BENEFITS FROM TIME TO TIME AS IT DEEMS NECESSARY.\n2. Confidentiality\nA. Definition of Confidential Information. I understand that 'Company Confidential Information" means information that\nthe Company has or will develop, acquire, create, compile, discover or own, that has value in or to the Company's business which\nis\nnot generally known and which the Company wishes to maintain as confidential. Company Confidential Information includes both\ninformation disclosed by the Company to me, and information developed or learned by me during the course of my employment with\nCompany. Company Confidential Information also includes all information of which the unauthorized disclosure could be\ndetrimental to the interests of Company, whether or not such information is identified as Company Confidential Information. By\nexample, and without limitation, Company Confidential Information includes any and all non-public information that relates to the\nactual or anticipated business and/or products, research or development of the Company, or to the Company's technical data,\ntrade\nsecrets, or know-how, including but not limited to, research, product plans, or other information regarding the Company's products\nor services and markets therefor, customer lists and customers (including, but not limited to, customers of the Company on which I\ncalled or with which I may become acquainted during the term of my employment), software, developments, inventions, processes,\nformulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, and other business\ninformation disclosed by the Company either directly or indirectly in writing, orally or\nby drawings or inspection of premises, parts, equipment, or other Company property. Notwithstanding the foregoing, Company\nConfidential Information shall not include any such information which I can establish (i) was publicly known or made generally\navailable prior to the time of disclosure by Company to me; (ii) becomes publicly known or made generally available after disclosure\nby Company to me through no wrongful action or omission by me; or (iii) is in my rightful possession, without confidentiality\nobligations, at the time of disclosure by Company as shown by my then-contemporaneous written records. I understand that nothing\nin this A greement is intended to limit employees' rights to discuss the terms, wages, and working conditions of their employment as\nprotected by applicable law.\nB. Nonuse and Nondisclosure. I agree that during and after my employment with the Company, I will hold in the strictest\nconfidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of Company Confidential Information,\nand I will not (i) use the Company Confidential Information for any purpose whatsoever other than for the benefit of the Company in\nthe course of my employment, or (ii) disclose the Company Confidential Information to any third party without the prior written\nauthorization of the President, CEO, or the Board of Directors of the Company. Prior to disclosure when compelled by applicable\nlaw, I shall provide prior written notice to the President, CEO, and General Counsel of Clovis Oncology, Inc. (as applicable) I agree\nthat I obtain no title to any Company Confidential Information, and that as between Company and myself, Clovis Oncology, Inc.\nretains all Confidential Information as the sole property of Clovis Oncology, Inc.. I understand that my unauthorized use or disclosure\nof Company Confidential Information during my employment may lead to disciplinary action, up to and including immediate\ntermination and legal action by the Company. I understand that my obligations under this Section 2.B shall continue after termination\nof my employment.\nC. Former Employer Confidential Information I agree that during my employment with the Company, I will not improperly\nuse, disclose, or induce the Company to use any proprietary information or trade secrets of any former employer or other person or\nentity with which I have an obligation to keep in confidence. I further agree that I will not bring onto the Company's premises or\ntransfer onto the Company's technology systems any unpublished document, proprietary information, or trade secrets belonging to\nany such third party unless disclosure to, and use by, the Company has been consented to in writing by such third party.\nD. Third Party Information. I recognize that the Company has received and in the future will receive from third parties\nassociated with the Company, e.g., the Company's customers, suppliers, licensors, licensees, partners, or collaborators "Associated\nThird\nParties"), their confidential or proprietary information "Associated Third Party Confidential Information") subject to a\nduty on the Company's part to maintain the confidentiality of such A ssociated Third Party Confidential Information and to use it only\nfor certain limited purposes. By way of example, A ssociated Third Party Confidential Information may include the habits or practices\nof ssociated Third Parties, the technology of A ssociated Third Parties, requirements\nPage 2 of 15\nof A ssociated Third Parties, and information related to the business conducted between the Company and such A ssociated Third\nParties. I agree at all times during my employment with the Company and thereafter, that I owe the Company and its A ssociated\nThird Parties a duty to hold all such ssociated Third Party Confidential Information in the strictest confidence, and not to use it or to\ndisclose it to any person, firm, corporation, or other third party except as necessary in carrying out my work for the Company\nconsistent with the Company's agreement with such A ssociated Third Parties. I further agree to comply with any and all Company\npolicies and guidelines that may be adopted from time to time regarding A ssociated Third Parties and A ssociated Third Party\nConfidential Information. I understand that my unauthorized use or disclosure of A ssociated Third Party Confidential Information or\nviolation of any Company policies during my employment may lead to disciplinary action, up to and including immediate termination\nand legal action by the Company.\n3. Ownership\nA. Assignment of Inventions. As between Company and myself, I agree that all right, title, and interest in and to any and\ncopyrightable material, notes, records, drawings, designs, inventions, improvements, ideas, developments, discoveries, processes, and\ntrade secrets conceived, discovered, authored, invented, developed or reduced to practice by me, solely or in collaboration with\nothers, during the period of time I am in the employ of the Company (including during my off-duty hours), or with the use of\nCompany's equipment, supplies, facilities, or Company Confidential Information, and any copyrights, patents, trade secrets, mask\nwork rights or other intellectual property rights relating to the foregoing, except as provided in Section 3.G below (collectively,\n"Inventions"), are the sole property of Clovis Oncology, Inc. I also agree to promptly make ful written disclosure to Clovis\nOncology, Inc. of any Inventions, and to deliver and assign and hereby irrevocably assign fully to Clovis Oncology, Inc. all of my\nright, title and interest in and to Inventions. I agree that this assignment includes a present conveyance to Clovis Oncology, Inc. of\nownership of Inventions that are not yet in existence. I further acknowledge that all original works of authorship that are made by me\n(solely or jointly with others) within the scope of and during the period of my employment with the Company and that are protectable\nby copyright are "works made for hire," as that term is defined in the United States Copyright Act. I understand and agree that the\ndecision whether or not to commercialize or market any Inventions is within the Company's sole discretion and for the Company's\nsole benefit, and that no royalty or other consideration will be due to me as a result of the Company's efforts to commercialize or\nmarket any such Inventions.\nB. Pre-Existing Materials. I have attached hereto as Exhibit A, a list describing all inventions, discoveries, original works of\nauthorship, developments, improvements, trade secrets and other proprietary information or intellectual property rights owned by me\nor\nin which I have an interest prior to, or separate from, my employment with the Company and which relate to the Company's\nproposed business, products, or research and development ("Prior Inventions"); or, if no such list is attached, I represent and warrant\nthat there are no such Prior Inventions. Furthermore, I represent and warrant that if any Prior Inventions are included on\nPage 3 of 15\nExhibit A, they will not materially affect my ability to perform all obligations under this A greement. I will inform Clovis Oncology,\nInc.\nin\nwriting before incorporating such Prior Inventions into any Invention or otherwise utilizing such Prior Invention in the course\nof my employment with the Company, and the Company is hereby granted a nonexclusive, royalty-free, perpetual, irrevocable,\ntransferable worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell,\nreproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Prior Inventions,\nwithout restriction, including, without limitation, as part of or in connection with such Invention, and to practice any method related\nthereto. I will not incorporate any invention, improvement, development, concept, discovery, work of authorship or other proprietary\ninformation owned by any third party into any Invention without Clovis Oncology, Inc.'s prior written permission.\nC. Moral Rights. A ny assignment to Clovis Oncology, Inc. of Inventions includes all rights of attribution, paternity, integrity,\nmodification, disclosure and withdrawal, and any other rights throughout the world that may be known as or referred to as "moral\nrights," "artist's rights," moral," or the like (collectively, "Moral Rights"). To the extent that Moral Rights cannot be assigned\nunder applicable law, I hereby waive and agree not to enforce any and all Moral Rights, including, without limitation, any limitation\non subsequent modification, to the extent permitted under applicable law.\nD. Maintenance of Records. I agree to keep and maintain adequate, current, accurate, and authentic written records of all\nInventions made by me (solely or jointly with others) during the term of my employment with the Company. The records will be in\nthe form of notes, sketches, drawings, electronic files, reports, or any other format that may be specified by the Company. As\nbetween Company and myself, the records are and will be available to and remain the sole property of Clovis Oncology, Inc. at all\ntimes.\nE. Further Assurances. I agree to assist the Company, or its designee, at the Company's expense, in every proper way to secure\nthe Company's rights in the Inventions in any and all countries, including the disclosure to the Company of all pertinent information\nand data with respect thereto, the execution of all applications, specifications, oaths, assignments, and all other instruments that the\nCompany shall deem proper or necessary in order to apply for, register, obtain, maintain, defend, and enforce such rights, and in\norder to deliver, assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title, and\ninterest in and to all Inventions, and testifying in a suit or other proceeding relating to such Inventions. I further agree that my\nobligations under this Section 3.E shall continue after the termination of this Agreement.\nF.\nAttorney-in-Fact. I agree that, if the Company is unable because of my unavailability, mental or physical incapacity, or for\nany other reason to secure my signature with respect to any Inventions, including, without limitation, for the purpose of applying for\nor pursuing any application for any United States or foreign patents or mask work or copyright registrations covering the Inventions\nassigned to Clovis Oncology, Inc. in Section 3.A, then I\nPage 4 of 15\nhereby irrevocably designate and appoint the Company and its duly authorized officers and agents as my agent and attorney-in-fact,\nto\nact for and on my behalf to execute and file any papers and oaths, and to do all other lawfully permitted acts with respect to such\nInventions to further the prosecution and issuance of patents, copyright and mask work registrations with the same legal force and\neffect as if executed by me. This power of attorney shall be deemed coupled with an interest, and shall be irrevocable.\nG. Exception to Assignments. I UNDERSTAND THAT THE PROVISIONS OF THIS AGREEMENT REQUIRING\nASSIGNMENT OF INVENTIONS TO CLOVIS ONCOLOGY INC. DO NOT APPLY TO ANY INVENTION THAT QUALIFIES\nFULLY UNDER THE PROVISIONS OF THE COLORADO LABOR CODE. I WILL ADVISE CLOVIS ONCOLOGY INC.\nPROMPTLY IN WRITING OF ANY INVENTIONS THAT I BELIEVE MEET THE CRITERIA IN THE COLORADO LABOR\nCODE AND ARE NOT OTHERWISE DISCLOSED ON EXHIBIT A.\n4. Conflicting Obligations\nA. Current Obligations. I agree that during the term of my employment with the Company, I will not engage in or undertake\nany other employment, occupation, consulting relationship, or commitment that is directly related to the business in which the\nCompany is now involved or becomes involved or has plans to become involved, nor wil I engage in any other activities that conflict\nwith my obligations to the Company.\nB. Prior Relationships. Without limiting Section 4.A, I represent and warrant that I have no other agreements, relationships, or\ncommitments to any other person or entity that conflict with the provisions of this A greement, my obligations to the Company under\nthis A greement, or my ability to become employed and perform the services for which I am being hired by the Company. I further\nagree that if I have signed a confidentiality agreement or similar type of agreement with any former employer or other entity, I will\ncomply with the terms of any such agreement to the extent that its terms are lawful under applicable law. I represent and warrant that\nafter undertaking a careful search (including searches of my computers, cell phones electronic devices, and documents) I have\nretumed all property and confidential information belonging to all prior employers (and/or other third parties I have performed\nservices for in accordance with the terms of my applicable agreement). Moreover, I agree to fully indemnify the Company, its\ndirectors, officers, agents, employees, investors, shareholders, administrators, affiliates, divisions, subsidiaries, predecessor and\nsuccessor corporations and assigns for all verdicts, judgments, settlements, and other losses incurred by any of them resulting from\nmy breach of my obligations under any agreement with a third party to which I am a party or obligation to which I am bound, as well\nas any reasonable attomeys' fees and costs if the plaintiff is the prevailing party in such an action, except as prohibited by law.\nPage 5 of 15\n5. Return of Company Materials\nUpon separation from employment with the Company, on Company's earlier request during my employment, or at any time\nsubsequent to my employment upon demand from the Company, I will immediately deliver to Clovis Oncology, Inc., and will not\nkeep in my possession, recreate, or deliver to anyone else, any and all Company property, including, but not limited to, Company\nConfidential Information, A ssociated Third Party Confidential Information, all devices and equipment belonging to the Company\n(including computers, handheld electronic devices, telephone equipment, and other electronic devices), all tangible embodiments of\nthe Inventions, all electronically stored information and passwords to access such property, Company credit cards, records, data,\nnotes, notebooks, reports, files, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials,\nphotographs, charts, any other documents and property, and reproductions of any of the foregoing items, including, without\nlimitation, those records maintained pursuant to Section 3.D. I also consent to an exit interview to confirm my compliance with this\nArticle 5.\n6. Termination C ertification\nUpon separation from employment with the Company, I agree to immediately sign and deliver to the Company the "Termination\nCertification" attached hereto as Exhibit B. I also agree to keep Clovis Oncology, Inc. advised of my home and business address for a\nperiod of three (3) years after termination of my employment with the Company, so that the Company can contact me regarding my\ncontinuing obligations provided by this A greement.\n7. Notification of New Employer\nIn the event that I leave the employ of the Company, I hereby grant consent to notification by the Company to my new employer\nabout my obligations under this A greement\n8. Solicitation of Employees\nTo the fullest extent permitted under applicable law, I agree that during my employment and for a period of twelve (12) months\nimmediately following the termination of my relationship with the Company for any reason, whether voluntary or involuntary, with\nor without cause, I will not directly or indirectly solicit any of the Company's employees to leave their employment at the Company.\nI agree that nothing in this Article 8 shall affect my continuing obligations under this greement during and after this twelve\n(12) month period, including, without limitation, my obligations under Article 2.\n9. Conflict of Interest Guidelines\nI agree to diligently adhere to all policies of the Company, including the Company's insider trading policies and the Company's\nConflict of Interest Guidelines. A copy of the Company's current Conflict of Interest Guidelines is attached as Exhibit C hereto, but I\nunderstand that these Conflict of Interest Guidelines may be revised from time to time during my employment.\nPage 6 of 15\n10. Representations\nWithout limiting my obligations under Section 3.E above, I agree to execute any proper oath or verify any proper document\nrequired to carry out the terms of this greement. I represent and warrant that my performance of all the terms of this Agreement will\nnot breach any agreement to keep in confidence information acquired by me in confidence or in trust prior to my employment by the\nCompany. I hereby represent and warrant that I have not entered into, and I will not enter into, any oral or written agreement in\nconflict herewith.\n11. Audit\nI acknowledge that I have no reasonable expectation of privacy in any computer, technology system, email, handheld device,\ntelephone, voicemail, or documents that are used to conduct the business of the Company. All information, data, and messages\ncreated, received, sent, or stored in these systems are, at all times, the property of the Company. As such, the Company has the right\nto audit and search all such items and systems, without further notice to me, to ensure that the Company is licensed to use the\nsoftware on the Company's devices in compliance with the Company's software licensing policies, to ensure compliance with the\nCompany's policies, and for any other business-related purposes in the Company's sole discretion. I understand that I am not\npermitted to add any unlicensed, unauthorized, or non-compliant applications to the Company's technology systems, including,\nwithout limitation, open source or free software not authorized by the Company, and that I shall refrain from copying unlicensed\nsoftware onto the Company's technology systems or using non-licensed software or websites. I understand that it is my responsibility\nto comply with the Company's policies governing use of the Company's documents and the internet, email, telephone, and\ntechnology systems to which I will have access in connection with my employment.\nI am aware that the Company has or may acquire software and systems that are capable of monitoring and recording all network\ntraffic to and from any computer I may use. The Company reserves the right to access, review, copy, and delete any of the\ninformation, data, or messages accessed through these systems with or without notice to me and/or in my absence. This includes, but\nis not limited to, all e-mail messages sent or received, all website visits, all chat sessions, all news group activity (including groups\nvisited, messages read, and postings by me), and all file transfers into and out of the Company's internal networks. The Company\nfurther reserves the right to retrieve previously deleted messages from e-mail or voicemail and monitor usage of the Internet,\nincluding websites visited and any information I have downloaded. In addition, the Company may review Internet and technology\nsystems activity and analyze usage patterns, and may choose to publicize this data to assure that technology systems are devoted to\nlegitimate business purposes.\nPage 7 of 15\n12. Arbitration and Equitable Relief\nA. Arbitration. IN CONSIDERATION OF MY EMPLOY MENT WITH THE COMPANY, ITS PROMISE TO ARBITRATE\nALL EMPLOY MENT-RELATED DISPUTES, AND MY RECEIPT OF THE COMPENSATION PAY RAISES, AND OTHER\nBENEFITS PAID TO ME BY THE COMPANY, AT PRESENT AND IN THE FUTURE, AGREE THAT ANY AND ALL\nCONTROVERSIES, CLAIMS, OR DISPUTES WITH ANY ONE (INCLUDING THE COMPANY AND ANY EMPLOYEE\nOFFICER, DIRECTOR, SHAREHOLDER, OR BENEFIT PLAN OF THE COMPANY IN THEIR CAPACITY AS SUCH OR\nOTHERWISE), WHETHER BROUGHT ON AN INDIVIDUAL, GROUP, OR CLASS BASIS, ARISING OUT OF, RELATING\nTO, OR RESULTING FROM MY EMPLOY M MENT WITH THE COMPANY OR THE TERMINATION OF MY EMPLOY MENT\nWITH THE COMPANY, INCLUDING ANY BREACH OF THIS AGREEMENT, SHALL BE SUBJECT TO BINDING\nARBITRATION UNDER THE ARBITRATION RULES SET FORTH IN COLORADO CODE OF CIVIL PROCEDURE (THE\n"ACT"), AND PURSUANT TO COLORADO LAW. THE FEDERAL ARBITRATION ACT SHALL CONTINUE TO APPLY\nWITH FULL FORCE AND EFFECT NOTWITHSTANDING THE APPLICATION OF PROCEDURAL RULES SET FORTH IN\nTHE ACT. DISPUTES THAT I AGREE TO ARBITRATE, AND THEREBY AGREE TO WAIVE ANY RIGHT TO A\nTRIAL BY JURY, INCLUDE ANY STATUTORY CLAIMS UNDER LOCAL, STATE, OR FEDERAL LAW, INCLUDING,\nBUT NOT LIMITED TO, CLAIMS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE AMERICANS\nWITH DISABILITIES ACT OF 1990, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE OLDER\nWORKERS BENEFIT PROTECTION ACT, THE SARBANES-OXLEY ACT, THE WORKER ADJUSTMENT AND\nRETRAINING NOTIFICATION ACT, THE FAMILY AND MEDICAL LEAVE ACT, THE COLORADO LABOR CODE,\nCLAIMS OF HARASSMENT, DISCRIMINATION, AND WRONGFUL TERMINATION, AND ANY STATUTORY OR\nCOMMON LAW CLAIMS. I FURTHER UNDERSTAND THAT THIS AGREEMENT TO ARBITRATE ALSO APPLIES TO\nANY DISPUTES THAT THE COMPANY MAY HAVE WITH ME.\nB. Procedure. I AGREE THAT ANY ARBITRATION WILL BE ADMINISTERED BY JUDICIAL ARBITRATION &\nMEDIATION SERVICES, INC. ("JAMS"), PURSUANT TO ITS EMPLOY MENT ARBITRATION RULES & PROCEDURES\n(THE "JAMS RULES"). I AGREE THAT THE ARBITRATOR SHALL HAVE THE POWER TO DECIDE ANY MOTIONS\nBROUGHT BY ANY PARTY TO THE ARBITRATION, INCLUDING MOTIONS FOR SUMMARY JUDGMENT AND/OR\nADJUDICATION, MOTIONS TO DISMISS AND DEMURRERS, AND MOTIONS FOR CLASS CERTIFICATION, PRIOR TO\nANY ARBITRATION HEARING. I AGREE THAT THE ARBITRATOR SHALL ISSUE A WRITTEN DECISION ON THE\nMERITS. I ALSO AGREE THAT THE ARBITRATOR SHALL HAVE THE POWER TO AWARD ANY REMEDIES\nAVAILABLE UNDER APPLICABLE LAW, AND THAT THE ARBITRATOR SHALL AWARD ATTORNEYS FEES AND\nCOSTS TO THE PREVAILING PARTY, EX CEPT AS PROHIBITED BY LAW. AGREE THAT THE DECREE OR AWARD\nRENDERED BY THE ARBITRATOR MAY BE ENTERED AS A FINAL AND BINDING JUDGMENT IN\nPage 8 of 15\nANY COURT HAVING JURISDICTION THEREOF. I UNDERSTAND THAT THE COMPANY WILL PAY FOR ANY\nADMINISTRATIVE OR HEARING FEES CHARGED BY THE ARBITRATOR OR JAMS EXCEPT THAT I SHALL PAY ANY\nFILING FEES ASSOCIATED WITH ANY ARBITRATION THAT I INITIATE, BUT ONLY SO MUCH OF THE FILING FEES\nAS WOULD HAVE INSTEAD PAID HAD I FILED A COMPLAINT IN A COURT OF LAW. AGREE THAT THE\nARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN ACCORDANCE WITH COLORADO LAW,\nINCLUDING THE COLORADO CODE OF CIVIL PROCEDURE, AND THAT THE ARBITRATOR SHALL APPLY\nSUBSTANTIV AND PROCEDURAL COLORADO LAW TO ANY DISPUTE OR CLAIM, WITHOUT REFERENCE TO\nRULES OF CONFLICT OF LAW. TO THE EXTENT THAT THE JAMS RULES CONFLICT WITH COLORADO LAW,\nCOLORADO LAW SHALL TAKE PRECEDENCE. I AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT\nSHALL BE CONDUCTED IN COLORADO.\nC. Remedy. EXCEPT AS PROVIDED BY THE ACT AND THIS AGREEMENT, ARBITRATION SHALL BE THE SOLE,\nEXCLUSIVE, AND FINAL REMEDY FOR ANY DISPUTE BETWEEN ME AND THE COMPANY. ACCORDINGLY, EXCEPT\nAS PROVIDED FOR BY THE ACT AND THIS AGREEMENT, NEITHER I NOR THE COMPANY WILL BE PERMITTED TO\nPURSUE COURT ACTION REGARDING CLAIMS THAT ARE SUBJECT TO ARBITRATION.\nD. Administrative Relief. I UNDERSTAND THAT THIS AGREEMENT DOES NOT PROHIBIT ME FROM PURSUING\nAN ADMINISTRATIVE CLAIM WITH A LOCAL, STATE, OR FEDERAL ADMINISTRATIVE BODY OR GOVERNMENT\nAGENCY THAT IS AUTHORIZED TO ENFORCE OR ADMINISTER LAWS RELATED TO EMPLOY MENT, INCLUDING,\nBUT NOT LIMITED TO, THE DEPARTMENT OF FAIR EMPLOY MENT AND HOUSING THE EQUAL EMPLOY MENT\nOPPORTUNITY COMMISSION, THE NATIONAL LABOR RELATIONS BOARD, OR THE WORKERS' COMPENSATION\nBOARD. THIS AGREEMENT DOES, HOWEVER, PRECLUDE ME FROM PURSUING COURT ACTION REGARDING ANY\nSUCH CLAIM, EXCEPT AS PERMITTED BY LAW.\nE. Voluntary Nature of Agreement. I ACKNOWLEDGE AND AGREE THAT I AM EXECUTING THIS A GREEMENT\nVOLUNTARILY AND WITHOUT ANY DURESS OR UNDUE INFLUENCE BY THE COMPANY OR ANY ONE ELSE. I\nFURTHER ACKNOWLEDGE AND AGREE THAT I HAVE CAREFULLY READ THIS AGREEMENT AND THAT I HAVE\nASKED ANY QUESTIONS NEEDED FOR ME TO UNDERSTAND THE TERMS, CONSEQUENCES, AND BINDING EFFECT\nOF THIS AGREEMENT AND FULLY UNDERSTAND IT, INCLUDING THAT I AM WAIVING MY RIGHT TO A JURY\nTRIAL. FINALLY, I AGREE THAT I HAVE BEEN PROVIDED AN OPPORTUNITY TO SEEK THE ADVICE OF AN\nATTORNEY OF MY CHOICE BEFORE SIGNING THIS AGREEMENT.\nPage 9 of 15\n13. Miscellaneous\nA. Governing Law; Consent to Personal J urisdiction This A greement will be governed by the laws of the State of Colorado\nwithout regard to Colorado's conflicts of law rules that may result in the application of the laws of any jurisdiction other than\nColorado. To the extent that any lawsuit is permitted under this A greement, I hereby expressly consent to the personal and exclusive\njurisdiction and venue of the state and federal courts located in Colorado for any lawsuit filed against me by the Company.\nB. Assignability. This Agreement will be binding upon my heirs, executors, assigns, administrators, and other legal\nrepresentatives, and will be for the benefit of the Company, its successors, and its assigns. There are no intended third-party\nbeneficiaries to this A greement, except as may be expressly otherwise stated. Notwithstanding anything to the contrary herein, Clovis\nOncology, Inc. may assign this A greement and its rights and obligations under this A greement to any successor to all or substantially\nall of Clovis Oncology, Inc.'s relevant assets, whether by merger, consolidation, reorganization, reincorporation, sale of assets or\nstock, or otherwise.\nC. Entire Agreement. This A greement, together with the Exhibits herein and any executed written offer letter between me and\nthe Company, to the extent such materials are not in conflict with this A greement, sets forth the entire agreement and understanding\nbetween the Company and me with respect to the subject matter herein and supersedes all prior written and oral agreements,\ndiscussions, or representations between us, including, but not limited to, any representations made during my interview(s) or\nrelocation negotiations. I represent and warrant that I am not relying on any statement or representation not contained in this\ngreement. Any subsequent change or changes in my duties, salary, or compensation will not affect the validity or scope of this\nAgreement\nD. Headings. Headings are used in this A greement for reference only and shall not be considered when interpreting this\nA greement.\nE. Severability. If a court or other body of competent jurisdiction finds, or the Parties mutually believe, any provision of this\nA greement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible so\nas to effect the intent of the Parties, and the remainder of this A greement will continue in full force and effect.\nF. Modification, Waiver. No modification of or amendment to this A greement, nor any waiver of any rights under this\nAgreement, will be effective unless in a writing signed by the President or CEO of Clovis Oncology, Inc. and me. Waiver by Clovis\nOncology, Inc. of a breach of any provision of this A greement will not operate as a waiver of any other or subsequent breach.\nPage 10 of 15\nG. Survivorship. The rights and obligations of the parties to this A greement will survive termination of my employment with\nthe Company.\nDate: 5/12/09\n/s/ Patrick J. Mahaffy\nS1gnature\nPatrick J. Mahaffy\nName of Employee (typed or printed)\nWitness:\nS1gnature\nName (typed or printed)\nPage 11 of 15\nEXHIBIT A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nIdentifying Number or Brief\nTitle\nDate\nDescription\nNo inventions or improvements\nAdditional Sheets Attached\nDate: 5/12/09\nPatrick J. Mahaffy\nS1gnature\nPatrick J. Mahaffy\nName of Employee (typed or printed)\nPage 12 of 15\nEXHIBIT B\nCLOVIS ONCOLOGY, INC. TERMINATION CERTIFICATION\nThis is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports,\nproposals, lists, correspondence, specifications drawings, blueprints, sketches, materials, equipment, any other documents or\nproperty, or reproductions of any and all aforementioned items belonging to Clovis Oncology, Inc., its subsidiaries, affiliates,\nsuccessors or assigns (together, the "Company").\nI further certify that I have complied with all the terms of the Company's Will Employment Confidential Information,\nInvention A ssignment, and A rbitration A greement signed by me, including the reporting of any inventions and original works of\nauthorship (as defined therein) conceived or made by me (solely or jointly with others), as covered by that agreement\nI further agree that, in compliance with the At-Will Employment, Confidential Information, Invention A ssignment, and\nArbitration A greement, I will preserve as confidential all Company Confidential Information and A ssociated Third Party Confidential\nInformation, including trade secrets, confidential knowledge, data, or other proprietary information relating to products, processes,\nknow-how, designs, formulas, developmental or experimental work, computer programs, databases, other original works of\nauthorship, customer lists, business plans, financial information, or other subject matter pertaining to any business of the Company or\nany of its employees, clients, consultants, or licensees.\nI also agree that for twelve (12) months from this date, I will not directly or indirectly solicit any of the Company's employees to\nleave their employment at the Company. I agree that nothing in this paragraph shall affect my continuing obligations under the\nAt-Will Employment, Confidential Information, Invention A ssignment, and Arbitration A greement during and after this twelve\n(12) month period, including, without limitation, my obligations under Article 2 (Confidentiality) thereof.\nfter leaving the Company's employment, I will be employed by\nin the position of\nDate:\nSignature\nName Of Employee Ttyped or printed)\nAddress for Notifications:\nPage 13 of 15\nEXHIBIT C\nCLOVIS ONCOLOGY, INC. CONFLICT OF INTEREST GUIDELINES\nIt is the policy of Clovis Oncology, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere\nto the highest principles of business ethics. Accordingly, all officers, employees, and independent contractors must avoid activities\nthat are in conflict, or give the appearance of being in conflict with these principles and with the interests of the Company. The\nfollowing are potentially compromising situations that must be avoided:\n1. Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information\nis\na violation of this policy whether or not for personal gain and whether or not harm to the Company is intended. (The At-Will\nEmployment, Confidentia Information, Invention A ssignment, and A rbitration A greement elaborates on this principle and is a\nbinding agreement.)\n2. A ccepting or offering substantial gifts, excessive entertainment, favors, or payments that may be deemed to constitute undue\ninfluence or otherwise be improper or embarrassing to the Company.\n3. Participating in civic or professional organizations that might involve divulging confidentia information of the Company.\n4. Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family\nrelationship or is or appears to be a personal or social involvement.\n5. Initiating or approving any form of personal or social harassment of employees.\n6.\nInvesting or holding outside directorship in suppliers, customers, or competing companies, including financial speculations,\nwhere such investment or directorship might influence in any manner a decision or course of action of the Company.\n7. Borrowing from or lending to employees, customers, or suppliers.\n8. A cquiring real estate of interest to the Company.\n9. Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent\nemployer or other person or entity with whom obligations of confidentiality exist.\n10. Unlawfully discussing prices, costs, customers, sales, or markets with competing companies or their employees.\n11. Making any unlawful agreement with distributors with respect to prices.\nPage 14 of 15\n12. Improperly using or authorizing the use of any inventions that are the subject of patent claims of any other person or entity\n13. Engaging in any conduct that is not in the best interest of the Company.\nEach officer, employee, and independent contractor must take every necessary action to ensure compliance with these guidelines\nand to bring problem areas to the attention of higher management for review. Violations of this conflict of interest policy may result\nin discharge without warning.\nPage 15 of 15	Exhibit 10.8\nCLOVIS ONCOLOGY, INC.\nAT-WILL EMPLOYMENT, CONFIDENTIAL INFORMATION,\nINVENTION ASSIGNMENT, AND ARBITRATION AGREEMENT\nAs a condition of my employment with Clovis Oncology, Inc., its subsidiaries, affiliates, successors or assigns (together, the\n“Company”), and in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid\nto me by Company, I agree to the following provisions of this Clovis Oncology, Inc. At-Will Employment, Confidential Information,\nInvention Assignment, and Arbitration Agreement (this “Agreement”):\n1. At-Will Employment\nI UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR NO SPECIFIED\nTERM AND CONSTITUTES “AT-WILL” EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO THE\nCONTRARY IS UNAUTHORIZED AND NOT VALID UNLESS IN WRITING AND SIGNED BY THE PRESIDENT OR CEO\nOF CLOVIS ONCOLOGY, INC.. ACCORDINGLY, I ACKNOWLEDGE THAT MY EMPLOYMENT RELATIONSHIP MAY BE\nTERMINATED AT ANY TIME, WITH OR WITHOUT GOOD CAUSE OR FOR ANY OR NO CAUSE, AT MY OPTION OR AT\nTHE OPTION OF THE COMPANY, WITH OR WITHOUT NOTICE. I FURTHER ACKNOWLEDGE THAT THE COMPANY\nMAY MODIFY JOB TITLES, SALARIES, AND BENEFITS FROM TIME TO TIME AS IT DEEMS NECESSARY.\n2. Confidentiality\nA. Definition of Confidential Information. I understand that “Company Confidential Information” means information that\nthe Company has or will develop, acquire, create, compile, discover or own, that has value in or to the Company’s business which is\nnot generally known and which the Company wishes to maintain as confidential. Company Confidential Information includes both\ninformation disclosed by the Company to me, and information developed or learned by me during the course of my employment with\nCompany. Company Confidential Information also includes all information of which the unauthorized disclosure could be\ndetrimental to the interests of Company, whether or not such information is identified as Company Confidential Information. By\nexample, and without limitation, Company Confidential Information includes any and all non-public information that relates to the\nactual or anticipated business and/or products, research or development of the Company, or to the Company’s technical data, trade\nsecrets, or know-how, including, but not limited to, research, product plans, or other information regarding the Company’s products\nor services and markets therefor, customer lists and customers (including, but not limited to, customers of the Company on which I\ncalled or with which I may become acquainted during the term of my employment), software, developments, inventions, processes,\nformulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, and other business\ninformation disclosed by the Company either directly or indirectly in writing, orally or\nby drawings or inspection of premises, parts, equipment, or other Company property. Notwithstanding the foregoing, Company\nConfidential Information shall not include any such information which I can establish (i) was publicly known or made generally\navailable prior to the time of disclosure by Company to me; (ii) becomes publicly known or made generally available after disclosure\nby Company to me through no wrongful action or omission by me; or (iii) is in my rightful possession, without confidentiality\nobligations, at the time of disclosure by Company as shown by my then-contemporaneous written records. I understand that nothing\nin this Agreement is intended to limit employees’ rights to discuss the terms, wages, and working conditions of their employment, as\nprotected by applicable law.\nB. Nonuse and Nondisclosure. I agree that during and after my employment with the Company, I will hold in the strictest\nconfidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of Company Confidential Information,\nand I will not (i) use the Company Confidential Information for any purpose whatsoever other than for the benefit of the Company in\nthe course of my employment, or (ii) disclose the Company Confidential Information to any third party without the prior written\nauthorization of the President, CEO, or the Board of Directors of the Company. Prior to disclosure when compelled by applicable\nlaw, I shall provide prior written notice to the President, CEO, and General Counsel of Clovis Oncology, Inc. (as applicable). I agree\nthat I obtain no title to any Company Confidential Information, and that as between Company and myself, Clovis Oncology, Inc.\nretains all Confidential Information as the sole property of Clovis Oncology, Inc.. I understand that my unauthorized use or disclosure\nof Company Confidential Information during my employment may lead to disciplinary action, up to and including immediate\ntermination and legal action by the Company. I understand that my obligations under this Section 2.B shall continue after termination\nof my employment.\nC. Former Employer Confidential Information. I agree that during my employment with the Company, I will not improperly\nuse, disclose, or induce the Company to use any proprietary information or trade secrets of any former employer or other person or\nentity with which I have an obligation to keep in confidence. I further agree that I will not bring onto the Company’s premises or\ntransfer onto the Company’s technology systems any unpublished document, proprietary information, or trade secrets belonging to\nany such third party unless disclosure to, and use by, the Company has been consented to in writing by such third party.\nD. Third Party Information. I recognize that the Company has received and in the future will receive from third parties\nassociated with the Company, e.g ., the Company’s customers, suppliers, licensors, licensees, partners, or collaborators (“Associated\nThird Parties”), their confidential or proprietary information (“Associated Third Party Confidential Information”) subject to a\nduty on the Company’s part to maintain the confidentiality of such Associated Third Party Confidential Information and to use it only\nfor certain limited purposes. By way of example, Associated Third Party Confidential Information may include the habits or practices\nof Associated Third Parties, the technology of Associated Third Parties, requirements\nPage2of15\nof Associated Third Parties, and information related to the business conducted between the Company and such Associated Third\nParties. I agree at all times during my employment with the Company and thereafter, that I owe the Company and its Associated\nThird Parties a duty to hold all such Associated Third Party Confidential Information in the strictest confidence, and not to use it or to\ndisclose it to any person, firm, corporation, or other third party except as necessary in carrying out my work for the Company\nconsistent with the Company’s agreement with such Associated Third Parties. I further agree to comply with any and all Company\npolicies and guidelines that may be adopted from time to time regarding Associated Third Parties and Associated Third Party\nConfidential Information. I understand that my unauthorized use or disclosure of Associated Third Party Confidential Information or\nviolation of any Company policies during my employment may lead to disciplinary action, up to and including immediate termination\nand legal action by the Company.\n3. Ownership\nA. Assignment of Inventions. As between Company and myself, I agree that all right, title, and interest in and to any and\ncopyrightable material, notes, records, drawings, designs, inventions, improvements, ideas, developments, discoveries, processes, and\ntrade secrets conceived, discovered, authored, invented, developed or reduced to practice by me, solely or in collaboration with\nothers, during the period of time I am in the employ of the Company (including during my off-duty hours), or with the use of\nCompany’s equipment, supplies, facilities, or Company Confidential Information, and any copyrights, patents, trade secrets, mask\nwork rights or other intellectual property rights relating to the foregoing, except as provided in Section 3.G below (collectively,\n“Inventions”), are the sole property of Clovis Oncology, Inc. I also agree to promptly make full written disclosure to Clovis\nOncology, Inc. of any Inventions, and to deliver and assign and hereby irrevocably assign fully to Clovis Oncology, Inc. all of my\nright, title and interest in and to Inventions. I agree that this assignment includes a present conveyance to Clovis Oncology, Inc. of\nownership of Inventions that are not yet in existence. I further acknowledge that all original works of authorship that are made by me\n(solely or jointly with others) within the scope of and during the period of my employment with the Company and that are protectable\nby copyright are “works made for hire,” as that term is defined in the United States Copyright Act. I understand and agree that the\ndecision whether or not to commercialize or market any Inventions is within the Company’s sole discretion and for the Company’s\nsole benefit, and that no royalty or other consideration will be due to me as a result of the Company’s efforts to commercialize or\nmarket any such Inventions.\nB. Pre-Existing Materials. I have attached hereto as Exhibit A, a list describing all inventions, discoveries, original works of\nauthorship, developments, improvements, trade secrets and other proprietary information or intellectual property rights owned by me\nor in which I have an interest prior to, or separate from, my employment with the Company and which relate to the Company’s\nproposed business, products, or research and development (“Prior Inventions”); or, if no such list is attached, I represent and warrant\nthat there are no such Prior Inventions. Furthermore, I represent and warrant that if any Prior Inventions are included on\nPage3of15\nExhibit A, they will not materially affect my ability to perform all obligations under this Agreement. I will inform Clovis Oncology,\nInc. in writing before incorporating such Prior Inventions into any Invention or otherwise utilizing such Prior Invention in the course\nof my employment with the Company, and the Company is hereby granted a nonexclusive, royalty-free, perpetual, irrevocable,\ntransferable worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell,\nreproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Prior Inventions,\nwithout restriction, including, without limitation, as part of or in connection with such Invention, and to practice any method related\nthereto. I will not incorporate any invention, improvement, development, concept, discovery, work of authorship or other proprietary\ninformation owned by any third party into any Invention without Clovis Oncology, Inc.’s prior written permission.\nC. Moral Rights. Any assignment to Clovis Oncology, Inc. of Inventions includes all rights of attribution, paternity, integrity,\nmodification, disclosure and withdrawal, and any other rights throughout the world that may be known as or referred to as “moral\nrights,” “artist’s rights,” “droit moral,” or the like (collectively, “Moral Rights”). To the extent that Moral Rights cannot be assigned\nunder applicable law, I hereby waive and agree not to enforce any and all Moral Rights, including, without limitation, any limitation\non subsequent modification, to the extent permitted under applicable law.\nD. Maintenance of Records. I agree to keep and maintain adequate, current, accurate, and authentic written records of all\nInventions made by me (solely or jointly with others) during the term of my employment with the Company. The records will be in\nthe form of notes, sketches, drawings, electronic files, reports, or any other format that may be specified by the Company. As\nbetween Company and myself, the records are and will be available to and remain the sole property of Clovis Oncology, Inc. at all\ntimes.\nE. Further Assurances. I agree to assist the Company, or its designee, at the Company’s expense, in every proper way to secure\nthe Company’s rights in the Inventions in any and all countries, including the disclosure to the Company of all pertinent information\nand data with respect thereto, the execution of all applications, specifications, oaths, assignments, and all other instruments that the\nCompany shall deem proper or necessary in order to apply for, register, obtain, maintain, defend, and enforce such rights, and in\norder to deliver, assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title, and\ninterest in and to all Inventions, and testifying in a suit or other proceeding relating to such Inventions. I further agree that my\nobligations under this Section 3.E shall continue after the termination of this Agreement.\nF. Attorney-in-Fact. I agree that, if the Company is unable because of my unavailability, mental or physical incapacity, or for\nany other reason to secure my signature with respect to any Inventions, including, without limitation, for the purpose of applying for\nor pursuing any application for any United States or foreign patents or mask work or copyright registrations covering the Inventions\nassigned to Clovis Oncology, Inc. in Section 3.A, then I\nPage4of15\nhereby irrevocably designate and appoint the Company and its duly authorized officers and agents as my agent and attorney-in-fact,\nto act for and on my behalf to execute and file any papers and oaths, and to do all other lawfully permitted acts with respect to such\nInventions to further the prosecution and issuance of patents, copyright and mask work registrations with the same legal force and\neffect as if executed by me. This power of attorney shall be deemed coupled with an interest, and shall be irrevocable.\nG. Exception to Assignments. I UNDERSTAND THAT THE PROVISIONS OF THIS AGREEMENT REQUIRING\nASSIGNMENT OF INVENTIONS TO CLOVIS ONCOLOGY, INC. DO NOT APPLY TO ANY INVENTION THAT QUALIFIES\nFULLY UNDER THE PROVISIONS OF THE COLORADO LABOR CODE. I WILL ADVISE CLOVIS ONCOLOGY, INC.\nPROMPTLY IN WRITING OF ANY INVENTIONS THAT I BELIEVE MEET THE CRITERIA IN THE COLORADO LABOR\nCODE AND ARE NOT OTHERWISE DISCLOSED ON EXHIBIT A.\n4. Conflicting Obligations\nA. Current Obligations. I agree that during the term of my employment with the Company, I will not engage in or undertake\nany other employment, occupation, consulting relationship, or commitment that is directly related to the business in which the\nCompany is now involved or becomes involved or has plans to become involved, nor will I engage in any other activities that conflict\nwith my obligations to the Company.\nB. Prior Relationships. Without limiting Section 4.A, I represent and warrant that I have no other agreements, relationships, or\ncommitments to any other person or entity that conflict with the provisions of this Agreement, my obligations to the Company under\nthis Agreement, or my ability to become employed and perform the services for which I am being hired by the Company. I further\nagree that if I have signed a confidentiality agreement or similar type of agreement with any former employer or other entity, I will\ncomply with the terms of any such agreement to the extent that its terms are lawful under applicable law. I represent and warrant that\nafter undertaking a careful search (including searches of my computers, cell phones, electronic devices, and documents), I have\nreturned all property and confidential information belonging to all prior employers (and/or other third parties I have performed\nservices for in accordance with the terms of my applicable agreement). Moreover, I agree to fully indemnify the Company, its\ndirectors, officers, agents, employees, investors, shareholders, administrators, affiliates, divisions, subsidiaries, predecessor and\nsuccessor corporations, and assigns for all verdicts, judgments, settlements, and other losses incurred by any of them resulting from\nmy breach of my obligations under any agreement with a third party to which I am a party or obligation to which I am bound, as well\nas any reasonable attorneys’ fees and costs if the plaintiff is the prevailing party in such an action, except as prohibited by law.\nPage5of15\n5. Return of Company Materials\nUpon separation from employment with the Company, on Company’s earlier request during my employment, or at any time\nsubsequent to my employment upon demand from the Company, I will immediately deliver to Clovis Oncology, Inc., and will not\nkeep in my possession, recreate, or deliver to anyone else, any and all Company property, including, but not limited to, Company\nConfidential Information, Associated Third Party Confidential Information, all devices and equipment belonging to the Company\n(including computers, handheld electronic devices, telephone equipment, and other electronic devices), all tangible embodiments of\nthe Inventions, all electronically stored information and passwords to access such property, Company credit cards, records, data,\nnotes, notebooks, reports, files, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials,\nphotographs, charts, any other documents and property, and reproductions of any of the foregoing items, including, without\nlimitation, those records maintained pursuant to Section 3.D. I also consent to an exit interview to confirm my compliance with this\nArticle 5.\n6. Termination Certification\nUpon separation from employment with the Company, I agree to immediately sign and deliver to the Company the “Termination\nCertification” attached hereto as Exhibit B. I also agree to keep Clovis Oncology, Inc. advised of my home and business address for a\nperiod of three (3) years after termination of my employment with the Company, so that the Company can contact me regarding my\ncontinuing obligations provided by this Agreement.\n7. Notification of New Employer\nIn the event that I leave the employ of the Company, I hereby grant consent to notification by the Company to my new employer\nabout my obligations under this Agreement.\n8. Solicitation of Employees\nTo the fullest extent permitted under applicable law, I agree that during my employment and for a period of twelve (12) months\nimmediately following the termination of my relationship with the Company for any reason, whether voluntary or involuntary, with\nor without cause, I will not directly or indirectly solicit any of the Company’s employees to leave their employment at the Company.\nI agree that nothing in this Article 8 shall affect my continuing obligations under this Agreement during and after this twelve\n(12) month period, including, without limitation, my obligations under Article 2.\n9. Conflict of Interest Guidelines\nI agree to diligently adhere to all policies of the Company, including the Company’s insider trading policies and the Company’s\nConflict of Interest Guidelines. A copy of the Company’s current Conflict of Interest Guidelines is attached as Exhibit C hereto, but I\nunderstand that these Conflict of Interest Guidelines may be revised from time to time during my employment.\nPage6of15\n10. Representations\nWithout limiting my obligations under Section 3.E above, I agree to execute any proper oath or verify any proper document\nrequired to carry out the terms of this Agreement. I represent and warrant that my performance of all the terms of this Agreement will\nnot breach any agreement to keep in confidence information acquired by me in confidence or in trust prior to my employment by the\nCompany. I hereby represent and warrant that I have not entered into, and I will not enter into, any oral or written agreement in\nconflict herewith.\n11. Audit\nI acknowledge that I have no reasonable expectation of privacy in any computer, technology system, email, handheld device,\ntelephone, voicemail, or documents that are used to conduct the business of the Company. All information, data, and messages\ncreated, received, sent, or stored in these systems are, at all times, the property of the Company. As such, the Company has the right\nto audit and search all such items and systems, without further notice to me, to ensure that the Company is licensed to use the\nsoftware on the Company’s devices in compliance with the Company’s software licensing policies, to ensure compliance with the\nCompany’s policies, and for any other business-related purposes in the Company’s sole discretion. I understand that I am not\npermitted to add any unlicensed, unauthorized, or non-compliant applications to the Company’s technology systems, including,\nwithout limitation, open source or free software not authorized by the Company, and that I shall refrain from copying unlicensed\nsoftware onto the Company’s technology systems or using non-licensed software or websites. I understand that it is my responsibility\nto comply with the Company’s policies governing use of the Company’s documents and the internet, email, telephone, and\ntechnology systems to which I will have access in connection with my employment.\nI am aware that the Company has or may acquire software and systems that are capable of monitoring and recording all network\ntraffic to and from any computer I may use. The Company reserves the right to access, review, copy, and delete any of the\ninformation, data, or messages accessed through these systems with or without notice to me and/or in my absence. This includes, but\nis not limited to, all e-mail messages sent or received, all website visits, all chat sessions, all news group activity (including groups\nvisited, messages read, and postings by me), and all file transfers into and out of the Company’s internal networks. The Company\nfurther reserves the right to retrieve previously deleted messages from e-mail or voicemail and monitor usage of the Internet,\nincluding websites visited and any information I have downloaded. In addition, the Company may review Internet and technology\nsystems activity and analyze usage patterns, and may choose to publicize this data to assure that technology systems are devoted to\nlegitimate business purposes.\nPage7of15\n12. Arbitration and Equitable Relief\nA. Arbitration. IN CONSIDERATION OF MY EMPLOYMENT WITH THE COMPANY, ITS PROMISE TO ARBITRATE\nALL EMPLOYMENT-RELATED DISPUTES, AND MY RECEIPT OF THE COMPENSATION, PAY RAISES, AND OTHER\nBENEFITS PAID TO ME BY THE COMPANY, AT PRESENT AND IN THE FUTURE, I AGREE THAT ANY AND ALL\nCONTROVERSIES, CLAIMS, OR DISPUTES WITH ANYONE (INCLUDING THE COMPANY AND ANY EMPLOYEE,\nOFFICER, DIRECTOR, SHAREHOLDER, OR BENEFIT PLAN OF THE COMPANY, IN THEIR CAPACITY AS SUCH OR\nOTHERWISE), WHETHER BROUGHT ON AN INDIVIDUAL, GROUP, OR CLASS BASIS, ARISING OUT OF, RELATING\nTO, OR RESULTING FROM MY EMPLOYMENT WITH THE COMPANY OR THE TERMINATION OF MY EMPLOYMENT\nWITH THE COMPANY, INCLUDING ANY BREACH OF THIS AGREEMENT, SHALL BE SUBJECT TO BINDING\nARBITRATION UNDER THE ARBITRATION RULES SET FORTH IN COLORADO CODE OF CIVIL PROCEDURE (THE\n“ACT”), AND PURSUANT TO COLORADO LAW. THE FEDERAL ARBITRATION ACT SHALL CONTINUE TO APPLY\nWITH FULL FORCE AND EFFECT NOTWITHSTANDING THE APPLICATION OF PROCEDURAL RULES SET FORTH IN\nTHE ACT. DISPUTES THAT I AGREE TO ARBITRATE, AND THEREBY AGREE TO WAIVE ANY RIGHT TO A\nTRIAL BY JURY, INCLUDE ANY STATUTORY CLAIMS UNDER LOCAL, STATE, OR FEDERAL LAW, INCLUDING,\nBUT NOT LIMITED TO, CLAIMS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE AMERICANS\nWITH DISABILITIES ACT OF 1990, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE OLDER\nWORKERS BENEFIT PROTECTION ACT, THE SARBANES-OXLEY ACT, THE WORKER ADJUSTMENT AND\nRETRAINING NOTIFICATION ACT, THE FAMILY AND MEDICAL LEAVE ACT, THE COLORADO LABOR CODE,\nCLAIMS OF HARASSMENT, DISCRIMINATION, AND WRONGFUL TERMINATION, AND ANY STATUTORY OR\nCOMMON LAW CLAIMS. I FURTHER UNDERSTAND THAT THIS AGREEMENT TO ARBITRATE ALSO APPLIES TO\nANY DISPUTES THAT THE COMPANY MAY HAVE WITH ME.\nB. Procedure. I AGREE THAT ANY ARBITRATION WILL BE ADMINISTERED BY JUDICIAL ARBITRATION &\nMEDIATION SERVICES, INC. (“JAMS”), PURSUANT TO ITS EMPLOYMENT ARBITRATION RULES & PROCEDURES\n(THE “JAMS RULES”). I AGREE THAT THE ARBITRATOR SHALL HAVE THE POWER TO DECIDE ANY MOTIONS\nBROUGHT BY ANY PARTY TO THE ARBITRATION, INCLUDING MOTIONS FOR SUMMARY JUDGMENT AND/OR\nADJUDICATION, MOTIONS TO DISMISS AND DEMURRERS, AND MOTIONS FOR CLASS CERTIFICATION, PRIOR TO\nANY ARBITRATION HEARING. I AGREE THAT THE ARBITRATOR SHALL ISSUE A WRITTEN DECISION ON THE\nMERITS. I ALSO AGREE THAT THE ARBITRATOR SHALL HAVE THE POWER TO AWARD ANY REMEDIES\nAVAILABLE UNDER APPLICABLE LAW, AND THAT THE ARBITRATOR SHALL AWARD ATTORNEYS’ FEES AND\nCOSTS TO THE PREVAILING PARTY, EXCEPT AS PROHIBITED BY LAW. I AGREE THAT THE DECREE OR AWARD\nRENDERED BY THE ARBITRATOR MAY BE ENTERED AS A FINAL AND BINDING JUDGMENT IN\nPage8of15\nANY COURT HAVING JURISDICTION THEREOF. I UNDERSTAND THAT THE COMPANY WILL PAY FOR ANY\nADMINISTRATIVE OR HEARING FEES CHARGED BY THE ARBITRATOR OR JAMS EXCEPT THAT I SHALL PAY ANY\nFILING FEES ASSOCIATED WITH ANY ARBITRATION THAT I INITIATE, BUT ONLY SO MUCH OF THE FILING FEES\nAS I WOULD HAVE INSTEAD PAID HAD I FILED A COMPLAINT IN A COURT OF LAW. I AGREE THAT THE\nARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN ACCORDANCE WITH COLORADO LAW,\nINCLUDING THE COLORADO CODE OF CIVIL PROCEDURE, AND THAT THE ARBITRATOR SHALL APPLY\nSUBSTANTIVE AND PROCEDURAL COLORADO LAW TO ANY DISPUTE OR CLAIM, WITHOUT REFERENCE TO\nRULES OF CONFLICT OF LAW. TO THE EXTENT THAT THE JAMS RULES CONFLICT WITH COLORADO LAW,\nCOLORADO LAW SHALL TAKE PRECEDENCE. I AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT\nSHALL BE CONDUCTED IN COLORADO.\nC. Remedy. EXCEPT AS PROVIDED BY THE ACT AND THIS AGREEMENT, ARBITRATION SHALL BE THE SOLE,\nEXCLUSIVE, AND FINAL REMEDY FOR ANY DISPUTE BETWEEN ME AND THE COMPANY. ACCORDINGLY, EXCEPT\nAS PROVIDED FOR BY THE ACT AND THIS AGREEMENT, NEITHER I NOR THE COMPANY WILL BE PERMITTED TO\nPURSUE COURT ACTION REGARDING CLAIMS THAT ARE SUBJECT TO ARBITRATION.\nD. Administrative Relief. I UNDERSTAND THAT THIS AGREEMENT DOES NOT PROHIBIT ME FROM PURSUING\nAN ADMINISTRATIVE CLAIM WITH A LOCAL, STATE, OR FEDERAL ADMINISTRATIVE BODY OR GOVERNMENT\nAGENCY THAT IS AUTHORIZED TO ENFORCE OR ADMINISTER LAWS RELATED TO EMPLOYMENT, INCLUDING,\nBUT NOT LIMITED TO, THE DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, THE EQUAL EMPLOYMENT\nOPPORTUNITY COMMISSION, THE NATIONAL LABOR RELATIONS BOARD, OR THE WORKERS’ COMPENSATION\nBOARD. THIS AGREEMENT DOES, HOWEVER, PRECLUDE ME FROM PURSUING COURT ACTION REGARDING ANY\nSUCH CLAIM, EXCEPT AS PERMITTED BY LAW.\nE. Voluntary Nature of Agreement. I ACKNOWLEDGE AND AGREE THAT I AM EXECUTING THIS AGREEMENT\nVOLUNTARILY AND WITHOUT ANY DURESS OR UNDUE INFLUENCE BY THE COMPANY OR ANYONE ELSE. I\nFURTHER ACKNOWLEDGE AND AGREE THAT I HAVE CAREFULLY READ THIS AGREEMENT AND THAT I HAVE\nASKED ANY QUESTIONS NEEDED FOR ME TO UNDERSTAND THE TERMS, CONSEQUENCES, AND BINDING EFFECT\nOF THIS AGREEMENT AND FULLY UNDERSTAND IT, INCLUDING THAT I AM WAIVING MY RIGHT TO A JURY\nTRIAL. FINALLY, I AGREE THAT I HAVE BEEN PROVIDED AN OPPORTUNITY TO SEEK THE ADVICE OF AN\nATTORNEY OF MY CHOICE BEFORE SIGNING THIS AGREEMENT.\nPage9of15\n13. Miscellaneous\nA. Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the State of Colorado\nwithout regard to Colorado’s conflicts of law rules that may result in the application of the laws of any jurisdiction other than\nColorado. To the extent that any lawsuit is permitted under this Agreement, I hereby expressly consent to the personal and exclusive\njurisdiction and venue of the state and federal courts located in Colorado for any lawsuit filed against me by the Company.\nB. Assignability. This Agreement will be binding upon my heirs, executors, assigns, administrators, and other legal\nrepresentatives, and will be for the benefit of the Company, its successors, and its assigns. There are no intended third-party\nbeneficiaries to this Agreement, except as may be expressly otherwise stated. Notwithstanding anything to the contrary herein, Clovis\nOncology, Inc. may assign this Agreement and its rights and obligations under this Agreement to any successor to all or substantially\nall of Clovis Oncology, Inc.’s relevant assets, whether by merger, consolidation, reorganization, reincorporation, sale of assets or\nstock, or otherwise.\nC. Entire Agreement. This Agreement, together with the Exhibits herein and any executed written offer letter between me and\nthe Company, to the extent such materials are not in conflict with this Agreement, sets forth the entire agreement and understanding\nbetween the Company and me with respect to the subject matter herein and supersedes all prior written and oral agreements,\ndiscussions, or representations between us, including, but not limited to, any representations made during my interview(s) or\nrelocation negotiations. I represent and warrant that I am not relying on any statement or representation not contained in this\nAgreement. Any subsequent change or changes in my duties, salary, or compensation will not affect the validity or scope of this\nAgreement.\nD. Headings. Headings are used in this Agreement for reference only and shall not be considered when interpreting this\nAgreement.\nE. Severability. If a court or other body of competent jurisdiction finds, or the Parties mutually believe, any provision of this\nAgreement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible so\nas to effect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.\nF. Modification, Waiver. No modification of or amendment to this Agreement, nor any waiver of any rights under this\nAgreement, will be effective unless in a writing signed by the President or CEO of Clovis Oncology, Inc. and me. Waiver by Clovis\nOncology, Inc. of a breach of any provision of this Agreement will not operate as a waiver of any other or subsequent breach.\nPage 10 of 15\nG. Survivorship. The rights and obligations of the parties to this Agreement will survive termination of my employment with\nthe Company.\nDate: 5/12/09\n/s/ Patrick J. Mahaffy\nSignature\nPatrick J. Mahaffy\nName of Employee (typed or printed)\nWitness:\nSignature\nName (typed or printed)\nPage 11 of 15\nEXHIBIT A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nIdentifying Number or Brief\nTitle\nDate\nDescription\n___\nNo inventions or improvements\n___\nAdditional Sheets Attached\nDate: 5/12/09\nPatrick J. Mahaffy\nSignature\nPatrick J. Mahaffy\nName of Employee (typed or printed)\nPage 12 of 15\nEXHIBIT B\nCLOVIS ONCOLOGY, INC. TERMINATION CERTIFICATION\nThis is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports,\nproposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment, any other documents or\nproperty, or reproductions of any and all aforementioned items belonging to Clovis Oncology, Inc., its subsidiaries, affiliates,\nsuccessors or assigns (together, the “Company”).\nI further certify that I have complied with all the terms of the Company’s At-Will Employment, Confidential Information,\nInvention Assignment, and Arbitration Agreement signed by me, including the reporting of any inventions and original works of\nauthorship (as defined therein) conceived or made by me (solely or jointly with others), as covered by that agreement.\nI further agree that, in compliance with the At-Will Employment, Confidential Information, Invention Assignment, and\nArbitration Agreement, I will preserve as confidential all Company Confidential Information and Associated Third Party Confidential\nInformation, including trade secrets, confidential knowledge, data, or other proprietary information relating to products, processes,\nknow-how, designs, formulas, developmental or experimental work, computer programs, databases, other original works of\nauthorship, customer lists, business plans, financial information, or other subject matter pertaining to any business of the Company or\nany of its employees, clients, consultants, or licensees.\nI also agree that for twelve (12) months from this date, I will not directly or indirectly solicit any of the Company’s employees to\nleave their employment at the Company. I agree that nothing in this paragraph shall affect my continuing obligations under the\nAt-Will Employment, Confidential Information, Invention Assignment, and Arbitration Agreement during and after this twelve\n(12) month period, including, without limitation, my obligations under Article 2 (Confidentiality) thereof.\nAfter leaving the Company’s employment, I will be employed by __________________________________________________\nin the position of ____________________________________________________________________.\nDate:\nSignature\nName of Employee (typed or printed)\nAddress for Notifications:\nPage 13 of 15\nEXHIBIT C\nCLOVIS ONCOLOGY, INC. CONFLICT OF INTEREST GUIDELINES\nIt is the policy of Clovis Oncology, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere\nto the highest principles of business ethics. Accordingly, all officers, employees, and independent contractors must avoid activities\nthat are in conflict, or give the appearance of being in conflict, with these principles and with the interests of the Company. The\nfollowing are potentially compromising situations that must be avoided:\n1. Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is\na violation of this policy whether or not for personal gain and whether or not harm to the Company is intended. (The At-Will\nEmployment, Confidential Information, Invention Assignment, and Arbitration Agreement elaborates on this principle and is a\nbinding agreement.)\n2. Accepting or offering substantial gifts, excessive entertainment, favors, or payments that may be deemed to constitute undue\ninfluence or otherwise be improper or embarrassing to the Company.\n3. Participating in civic or professional organizations that might involve divulging confidential information of the Company.\n4. Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family\nrelationship or is or appears to be a personal or social involvement.\n5. Initiating or approving any form of personal or social harassment of employees.\n6. Investing or holding outside directorship in suppliers, customers, or competing companies, including financial speculations,\nwhere such investment or directorship might influence in any manner a decision or course of action of the Company.\n7. Borrowing from or lending to employees, customers, or suppliers.\n8. Acquiring real estate of interest to the Company.\n9. Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent\nemployer or other person or entity with whom obligations of confidentiality exist.\n10. Unlawfully discussing prices, costs, customers, sales, or markets with competing companies or their employees.\n11. Making any unlawful agreement with distributors with respect to prices.\nPage 14 of 15\n12. Improperly using or authorizing the use of any inventions that are the subject of patent claims of any other person or entity.\n13. Engaging in any conduct that is not in the best interest of the Company.\nEach officer, employee, and independent contractor must take every necessary action to ensure compliance with these guidelines\nand to bring problem areas to the attention of higher management for review. Violations of this conflict of interest policy may result\nin discharge without warning.\nPage 15 of 15
+0f446b4ed10d8d40824270d746511cca.pdf	jurisdiction party	EXHIBIT 10.9\nNON-COMPETITION AND NON -DISCLOSURE AGREEMENT\nThis Non-Competition and Non-Disclosure Agreement (the “Agreement”), is entered into as of the day of\n, 2013, by and between Ameris Bancorp, a Georgia corporation (“Ameris”), and Shirley P. Fiano, an individual resident\nof the State of Florida (“Executive”).\nRECITALS\nWHEREAS, pursuant to that certain Agreement and Plan of Merger dated as of May 1, 2013 (the “Merger Agreement”) by and between Ameris and The Prosperity Banking Company, a Florida corporation (“Prosperity”), Prosperity will\nmerge with and into Ameris (the “Merger”), as a result of which Prosperity Bank, a Florida state-chartered bank and wholly owned subsidiary of Prosperity (“Prosperity Bank”), will become a wholly owned subsidiary of Ameris that is to\nbe subsequently merged with and into Ameris Bank, a Georgia state-chartered bank and wholly owned subsidiary of Ameris (“Ameris Bank”);\nWHEREAS, Executive is a shareholder of Prosperity and, as a result of the Merger and pursuant to the transactions contemplated by the Merger Agreement, Executive is expected to receive significant consideration in exchange for the\nshares of Prosperity Common Stock (as defined in the Merger Agreement) held by Executive;\nWHEREAS, prior to the date hereof, Executive has served as Executive Vice President/Chief Banking Officer of Prosperity Bank and has been responsible for the management of the business and affairs of Prosperity and its subsidiaries,\nincluding Prosperity Bank, and, therefore, Executive has knowledge of the Confidential Information and Trade Secrets (each as hereinafter defined); and\nWHEREAS, as a result of the Merger, Ameris will succeed to all of the Confidential Information and Trade Secrets, for which Ameris, as of the Effective Time (as defined in the Merger Agreement), will have paid valuable consideration\nand desires reasonable protection; and\nWHEREAS, it is a material prerequisite to the consummation of the Merger that Executive enter into this Agreement;\nNOW, THEREFORE, in consideration of these premises and the mutual covenants and undertakings herein contained, Ameris and Executive, each intending to be legally bound, covenant and agree as follows:\n1. Restrictive Covenants.\n(a) Executive acknowledges that (i) Ameris has separately bargained and paid additional consideration for the restrictive covenants in this Agreement; and (ii) the types and periods of restrictions imposed by the covenants in this\nAgreement are fair and reasonable to Executive and such restrictions will not prevent Executive from earning a livelihood.\n(b) Having acknowledged the foregoing, Executive covenants and agrees with Ameris as follows:\n(i) From and after the Effective Time, Executive will not disclose or use any Confidential Information or Trade Secret for so long as such information remains Confidential Information or a Trade Secret, as applicable, for any purpose.\n(ii) For a period of one (1) year after the Effective Time, Executive will not (except on behalf of or with the prior written consent of Ameris), on Executive’s own behalf or in the service or on behalf of others, solicit or attempt to solicit\nany customer of Ameris, Ameris Bank, Prosperity or Prosperity Bank (each a “Protected Party”), including actively sought prospective customers of any Protected Party, with whom Executive had Material Contact (as defined below)\nduring Executive’s employment with any Protected Party, for the purpose of providing products or services that are Competitive (as hereinafter defined) with those offered or provided by any Protected Party.\n(iii) For a period of one (1) year after the Effective Time, Executive will not (except on behalf of or with the prior written consent of Ameris), either directly or indirectly, on Executive’s own behalf or in the service or on behalf of others,\nperform within the Restricted Territory (as hereinafter defined) duties and responsibilities that are the same as or substantially similar to those Executive performed for Prosperity or Prosperity Bank for any business which is the same as\nor essentially the same as the business conducted by any Protected Party.\n(iv) For a period of one (1) year after the Effective Time, Executive will not on Executive’s own behalf or in the service or on behalf of others, solicit or recruit or attempt to solicit or recruit, directly or by assisting others, any employee of\nany Protected Party, whether or not such employee is a full-time employee or a temporary employee of such Protected Party, whether or not such employment is pursuant to a written agreement and whether or not such employment is for\na determined period or is at will, to cease working for such Protected Party.\n(c) For purposes of this Section 1, the following terms shall be defined as set forth below:\n(i) “Competitive,” with respect to particular products or services, shall mean products or services that are the same as or similar to the products or services of any Protected Party.\n(ii) “Confidential Information” shall mean data and information:\n(A) relating to the business of Prosperity and its subsidiaries, including Prosperity Bank, regardless of whether the data or information constitutes a Trade Secret;\n(B) disclosed to Executive or of which Executive became aware as a consequence of Executive’s relationship with Prosperity or Prosperity Bank;\n2\n(C) having value to Prosperity and, as a result of the consummation of the transactions contemplated by the Merger Agreement, Ameris; and\n(D) not generally known to competitors of Prosperity or Ameris.\nConfidential Information shall include Trade Secrets, methods of operation, names of customers, price lists, financial information and projections, personnel data and similar information; provided, however, that such term shall not mean\ndata or information that (x) has been voluntarily disclosed to the public by Prosperity or Ameris, except where such public disclosure has been made by Executive without authorization from Prosperity or Ameris, (y) has been\nindependently developed and disclosed by others, or (z) has otherwise entered the public domain through lawful means.\n(iii) “Restricted Territory” shall mean the geographic territory within a fifty (50) mile radius of Prosperity’s office as of the date hereof located at 100 SouthPark Boulevard, St. Augustine, Florida 32086.\n(iv) “Trade Secret” shall mean information, without regard to form, including technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial\nplans, product plans or a list of actual or potential customers or suppliers, that is not commonly known by or available to the public and which information:\n(A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and\n(B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.\n(v) “Material Contact” shall mean contact between Executive and a customer or prospective customer: (A) with whom or which Executive dealt on behalf of any Protected Party; (B) whose dealings with any Protected Party were\ncoordinated or supervised by Executive; (C) about whom Executive obtained Confidential Information in the ordinary course of business as a result of Executive’s association with any Protected Party; or (D) who receives products or\nservices as authorized by any Protected Party, the sale or provision of which results or resulted in compensation, commissions or earnings for Executive within two (2) years prior to the date of the termination of Executive’s employment\nwith any Protected Party.\n(d) Executive acknowledges that irreparable loss and injury would result to Ameris upon the breach of any of the covenants contained in this Section 1 and that damages arising out of such breach would be difficult to ascertain. Executive\nhereby agrees that, in addition to all other remedies provided at law or in equity, Ameris may petition and obtain from a court of law or equity, without the necessity of proving actual damages and without posting any bond or other\nsecurity, both temporary and permanent injunctive relief to prevent a breach by Executive of any covenant contained in this Section 1, and shall be entitled to an equitable\n3\naccounting of all earnings, profits and other benefits arising out of any such breach. In the event that the provisions of this Section 1 should ever be determined to exceed the time, geographic or other limitations permitted by applicable\nlaw, then such provisions shall be modified so as to be enforceable to the maximum extent permitted by law. If such provision(s) cannot be modified to be enforceable, the provision(s) shall be severed from this Agreement to the extent\nunenforceable. The remaining provisions and any partially enforceable provisions shall remain in full force and effect.\n2. Additional Cash Consideration. In addition to the consideration payable to Executive as a result of the Merger and pursuant to the transactions contemplated by the Merger Agreement, Ameris agrees to pay Executive the sum of\n$171,000.00 within one (1) business day following the date hereof.\n3. Notices. Any notice, consent, demand, request or other communication given to a party hereto in connection with this Agreement shall be in writing and shall be deemed to have been given to such party (x) when delivered personally to\nsuch party or (y) provided that a written acknowledgment of receipt is obtained, five (5) days after being sent by prepaid certified or registered mail or two (2) days after being sent by a nationally recognized overnight courier, to the\naddress (if any) specified below for such party (or to such other address as such party shall have specified by ten (10) days’ advance notice given in accordance with this Section 3) or (z) in the case of Ameris only, on the first business day\nafter it is sent by facsimile to the facsimile number set forth below (or to such other facsimile number as shall have specified by ten (10) days’ advance notice given in accordance with this Section 3), with a confirmatory copy sent by\ncertified or registered mail or by overnight courier in accordance with this Section 3.\nIf to Ameris:\nAmeris Bancorp\n310 First Street, S.E.\nMoultrie, Georgia 31768\nAttn: Chief Executive Officer\nFax: (229) 890-2235\nIf to Executive:\nThe address of Executive’s principal residence as it appears in Prosperity’s records as of the date\nhereof.\n4. Governing Law. The validity, interpretation and performance of this Agreement shall be governed by the laws of the State of Georgia, without giving effect to the conflicts of laws principles thereof.\n5. Modification and Waiver. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing signed by Executive and Ameris. No waiver by either party hereto\nat any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of dissimilar provisions or conditions at the same or\nany prior subsequent time.\n6. Severability. The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect.\n4\n7. Counterparts. This Agreement may be executed (and delivered via facsimile or other electronic transmission) in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the\nsame Agreement.\n8. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior agreements, understandings and arrangements, oral or written, between the parties hereto with respect to the subject\nmatter hereof.\n9. No Right to Employment. Nothing in this Agreement shall give or be deemed to give Executive the right to employment or employment benefits with Ameris.\n10. Construction; Interpretation. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter\ngenders and vice versa. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The headings in this Agreement are for convenience\nonly and are in no way intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any of its provisions.\n[Signature page follows.]\n5\nIN WITNESS WHEREOF, Executive has executed and delivered this Agreement, and Ameris has caused this Agreement to be executed and delivered, all as of the day and year first above set forth.\nAMERIS BANCORP\nBy:\nEdwin W. Hortman, Jr.\nPresident and Chief Executive Officer\nExecutive:\nSHIRLEY P. FIANO\n6	EXHIBIT 10.9\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nThis Non-Competition and Non-Disclosure Agreement (the ”A ggement”), is entered into as of the day of , 2013, by and between Ameris Bancorp, a Georgia corporation ("Ameris"), and Shirley P. Fiano, an individual resident\nof the State of Florida (”Executive").\nRE C ITA L S\nWHEREAS, pursuant to that certain Agreement and Plan of Merger dated as of May 1, 2013 (the ”Meger Agreement") by and between Ameris and The Prosperity Banking Company, a Florida corporation (”Prosperiy”), Prosperity will\nmerge with and into Ameris (the "Meger"), as a result of which Prosperity Bank, a Florida state-chartered bank and wholly owned subsidiary of Prosperity ("Prosperiy Bank"), will become a wholly owned subsidiary of Ameris that is to\nbe subsequently merged with and into Ameris Bank, a Georgia state-chartered bank and wholly owned subsidiary of Ameris ("Ameris Bank");\nWHEREAS, Executive is a shareholder of Prosperity and, as a result of the Merger and pursuant to the transactions contemplated by the MergerAgreement, Executive is expected to receive significant consideration in exchange for the\nshares of Prosperity Common Stock (as defined in the MergerAgreement) held by Executive;\nWHEREAS, prior to the date hereof, Executive has served as Executive Vice PresidentJChief Banking Officer of Prosperity Bank and has been responsible for the management of the business and affairs of Prosperity and its subsidiaries,\nincluding Prosperity Bank, and, therefore, Executive has knowledge of the Confidential Information and Trade Secrets (each as hereinafter defined); and\nWHEREAS, as a result of the Merger, Ameris will succeed to all of the Confidential Information and Trade Secrets, for which Ameris, as of the Effective Time (as defined in the MergerAgreement), will have paid valuable consideration\nand desires reasonable protection; and\nWHEREAS, it is a material prerequisite to the consummation of the Merger that Executive enter into this Agreement;\nNOW, THERE F0 RE, in consideration of these premises and the mutual covenants and undertakings herein contained, Ameris and Executive, each intending to be legally bound, covenant and agree as follows:\n1. Restiictive Covenants.\n(a) Executive acknowledges that (i) Ameris has separately bargained and paid additional consideration for the restrictive covenants in this Agreement; and (ii) the types and periods of restrictions imposed by the covenants in this\nAgreement are fair and reasonable to Executive and such restrictions will not prevent Executive from earning a livelihood.\n(b) Having acknowledged the foregoing, Executive covenants and agrees with Ameris as follows:\n(i) From and after the Effective Time, Executive will not disclose or use any Confidential Information or Trade Secret for so long as such information remains Confidential Information or a Trade Secret, as applicable, for any purpose.\n(ii) For a period of one (1) year after the Effective Time, Executive will not (except on behalf of or with the prior written consent of Ameris), on Executive' 5 own behalf or in the service or on behalf of others, solicit or attempt to solicit\nany customer of Ameris, Ameris Bank, Prosperity or Prosperity Bank (each a "Protected Pay”), including actively sought prospective customers of any Protected Party, with whom Executive had Material Contact (as defined below)\nduring Executive's employment with any Protected Party, for the purpose of providing products or services that are Competitive (as hereinafter defined) with those offered or provided by any Protected Party.\n(iii) For a period of one (1) year after the Effective Time, Executive will not (except on behalf of or with the prior written consent of Ameris), either directly or indirectly, on Executive' 5 own behalf or in the service or on behalf of others,\nperform within the Restricted Territory (as hereinafter defined) duties and responsibilities that are the same as or substantially similar to those Executive performed for Prosperity or Prosperity Bank for any business which is the same as\nor essentially the same as the business conducted by any Protected Partyr\n(iv) For a period of one (1) year after the Effective Time, Executive will not on Executive's own behalf or in the service or on behalf of others, solicit or recruit or attempt to solicit or recruit, directly or by assisting others, any employee of\nany Protected Party, whether or not such employee is a full-time employee or a tempomry employee of such Protected Party, whether or not such employment is pursuant to a written agreement and whether or not such employment is for\na determined period or is at will, to cease working for such Protected Party.\n(c) For purposes of this Section 1, the following terms shall be defined as set forth below:\n(i) "Competitive," with respect to particular products or services, shall mean products or services that are the same as or similarto the products or services of any Protected Party.\n(ii) ”Confidential Information" shall mean data and information:\n(A) relating to the business of Prosperity and its subsidiaries, including Prosperity Bank, regardless of whether the data or information constitutes a Trade Secret;\n(B) disclosed to Executive or of which Executive became aware as a consequence of Executive's relationship with Prosperity or Prosperity Bank,-\n(C) having value to Prosperity and, as a result of the consummation of the tiansactions contemplated by the MergerAgreement, Ameris; and\n(D) not generally known to competitors of Prosperity orAmeris.\nConfidential Information shall include Trade Secrets, methods of operation, names of customers, price lists, financial information and projections, personnel dam and similar information,- provided, however, that such term shall not mean\ndata or information that (x) has been voluntarily disclosed to the public by Prosperity orAmeris, except where such public disclosure has been made by Executive without authorization from Prosperity orAmeris, (y) has been\nindependently developed and disclosed by others, or (2) has otherwise entered the public domain through lawful means.\n(iii) "Restricted Territog" shall mean the geographic territory within a fifty (50) mile radius of Prosperity' 5 office as of the date hereof located at 100 SouthPark Boulevard, St Augustine, Florida 32086,\n(iv) ”Trade Secret" shall mean information, without regard to form, including technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial\nplans, product plans or a list of actual or potential customers or suppliers, that is not commonly known by or available to the public and which information:\n(A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and\n(B) is the subject of efforts that are reasonable under the circumstances to rnainmin its secrecy,\n(v) "Material Contact" shall mean contact between Executive and a customer or prospective customer: (A) with whom or which Executive dealt on behalf of any Protected Party; (B) whose dealings with any Protected Party were\ncoordinated or supervised by Executive; (C) about whom Executive obtained Confidential Information in the ordinary course of business as a result of Executive' s association with any Protected Party; or (D) who receives products or\nservices as authorized by any Protected Party, the sale or provision of which results or resulted in compensation, commissions or earnings for Executive within two (2) years prior to the date of the termination of Executive's employment\nwith any Protected Party.\n(d) Executive acknowledges that irreparable loss and injury would result to Ameris upon the breach of any of the covenants contained in this Section 1 and that damages arising out of such breach would be difficult to ascertain. Executive\nhereby agrees that, in addition to all other remedies provided at law or in equity, Ameris may petition and obmin from a court of law or equity, without the necessity of proving actual damages and without posting any bond or other\nsecurity, both temporary and permanent injunctive relief to prevent a breach by Executive of any covenant conmined in this Section 1, and shall be entitled to an equimble\n—\naccounting of all earnings, profits and other benefits arising out of any such breach. In the event that the provisions of this Section 1 should ever be determined to exceed the time, geographic or other limitations permitted by applicable\nlaw, then such provisions shall be modified so as to be enforceable to the maximum extent permitted by law. If such provisionts) cannot be modified to be enforceable, the provision(s) shall be severed from this Agreement to the extent\nunenforceable. The remaining provisions and any partially enforceable provisions shall remain in full force and effect.\n2. Additional Cash Consideration. In addition to the consideration payable to Executive as a result of the Merger and pursuant to the transactions contemplated by the MergerAgreement, Ameris agrees to pay Executive the sum of\n$171,000.00 within one (1) business day following the date hereof.\n3. m. Any notice, consent, demand, request or other communication given to a party hereto in connection with this Agreement shall be in writing and shall be deemed to have been given to such party (x) when delivered personally to\nsuch party or (y) provided that a written acknowledgment of receipt is obmined, five (5) days after being sent by prepaid certified or registered mail or two (2) days after being sent by a nationally recognized overnight courier, to the\naddress (if any) specified below for such party (or to such other address as such party shall have specified by ten (10) days' advance notice given in accordance with this Section 3) or (z) in the case of Ameris only, on the first business day\nafter it is sent by facsimile to the facsimile number set forth below (or to such other facsimile number as shall have specified by ten (10) days' advance notice given in accordance with this Section 3), with a confirmatory copy sent by\ncertified or registered mail or by overnight courier in accordance with this Section 3.\nIf to Ameris: Ameris Bancorp\n310 First Street, S.E.\nMoultrie, Georgia 31768\nAttn: Chief Executive Officer\nFax: [229) 890-2235\nIf to Executive: The address of Executive's principal residence as it appears in Prosperity' s records as of the date\nhereof.\n4. Governing Law. The validity, interpretation and performance of this Agreement shall be governed by the laws of the State of Georgia, without giving effect to the conflicts of laws principles thereof.\n5. Modification and Waiver. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing signed by Executive and Ameris. No waiver by either party hereto\nat any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of dissimilar provisions or conditions at the same or\nany prior subsequent time.\n6. Severabilifl. The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect.\n—\n7. Countemarts. This Agreement may be executed (and delivered via facsimile or other electronic transmission) in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the\nsame A greement.\n8. Entire A ’reement. This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior agreements, understandings and arrangements, oral or written, between the parties hereto with respect to the subject\n \nmatter hereof.\n9. No Right to Employment Nothing in this Agreement shall give or be deemed to give Executive the right to employment or employment benefits with Ameris.\n10. Construction; Intemretationr Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter\ngenders and vice versa. Whenever the words ”include, includes” or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation.” The headings in this Agreement are for convenience\nonly and are in no way intended to describe, interpret, define or limit the scope, extent orintent of this Agreement or any of its provisions.\n[Signature page follows]\nIN WITNESS WHEREOF, Executive has executed and delivered this Agreement, and Arrreris has caused this Agreement to be executed and delivered, all as of the day and year first above set forth.\nAMERIS BANCORP\nBy:\nw1n . 0 an, r.\nPresident and Chief Executive Officer\nE xecutive:	EXHIBIT 10.9\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nThis Non-Competition and Non-Disclosure Agreement (the 'Agreement") is entered into as of the\nday of\n2013, by and between A meris Bancorp, a Georgia corporation "Ameris"), and Shirley P. Fiano, an individual resident\nof the State of Florida ("Executive").\nRECITALS\nWHEREAS, pursuant to that certain Agreement and Plan of Merger dated as of May 1, 2013 (the "Merger Agreement") by and between A Ameris and The Prosperity Banking Company, a Florida corporation ("Prosperity"), Prosperity will\nmerge with and into Ameris (the "Merger") as a result of which Prosperity Bank, a Florida state-chartered bank and wholly owned subsidiary of Prosperity ("Prosperity Bank"), will become a wholly owned subsidiary of Ameris that is to\nbe subsequently merged with and into Ameris Bank, a Georgia tate-chartered bank and wholly owned subsidiary of Ameris ("Ameris Bank")\nWHEREAS, Executive is a shareholder of Prosperity and, as a result of the Merger and pursuant to the transactions contemplated by the Merger Agreement, Executive is expected to receive significant consideration in exchange for the\nshares of Prosperity Common Stock (as defined in the Merger Agreement) held by Executive;\nWHEREAS, prior to the date hereof Executive has served as Executive Vice President/Chief Banking Officer of Prosperity Bank and has been responsible for the management of the business and affairs of Prosperity and its subsidiaries,\nincluding Prosperity Bank and, therefore, Executive has knowledge of the Confidential Information and Trade Secrets (each as hereinafter defined) and\nWHEREAS, as a result of the Merger, Ameris will succeed to all of the Confidential Information and Trade Secrets, for which Ameris, as of the Effective Time (as defined in the Merger Agreement), will have paid valuable consideration\nand desires reasonable protection; and\nWHEREAS, it is a material prerequisite to the consummation of the Merger that Executive enter into this Agreement;\nNOW, THEREFORE in consideration of these premises and the mutual covenants and undertakings herein contained, A meris and Executive, each intending to be legally bound, covenant and agree as follows:\n1. Restrictive Covenants\n(a) Executive acknowledges that (i) Ameris has separately bargained and paid additional consideration for the restrictive covenants in this Agreement; and (ii) the types and periods of restrictions imposed by the covenants in this\nAgreement are fair and reasonable to Executive and such restrictions will not prevent Executive from earning a livelihood.\n(b) Having acknowledged the foregoing, Executive covenants and agrees with Ameris as follows:\n(i) From and after the Effective Time, Executive will not disclose or use any Confidential Information or Trade Secret for so long as such information remains Confidential Information or a Trade Secret, as applicable for any purpose.\n(ii) For a period of one (1) year after the Effective Time Executive will not (except on behalf of or with the prior written consent of Ameris), on Executive's own behalf or in the service or on behalf of others, solicit or attempt to solicit\nany customer of Ameris, A meris Bank, Prosperity or Prosperity Bank (each a Protected Party"), including actively sought prospective customers of any Protected Party, with whom Executive had Material Contact (as defined below)\nduring Executive's employment with any Protected Party, for the purpose of providing products or services that are Competitive (as hereinafter defined with those offered or provided by any Protected Party.\n(iii) For a period of one (1) year after the Effective Time, Executive will not (except on behalf of or with the prior written consent of Ameris), either directly or indirectly, on Executive's own behalf or in the service or on behalf of others,\nperform within the Restricted Territory (as hereinafter defined) duties and responsibilities that are the same as or substantially similar to those Executive performed for Prosperity or Prosperity Bank for any business which is the same as\nor essentially the same as the business conducted by any Protected Party.\n(iv) For a period of one (1) year after the Effective Time, Executive will not on Executive's own behalf or in the service or on behalf of others, solicit or recruit or attempt to solicit or recruit, directly or by assisting others, any employee of\nany Protected Party, whether or not such employee is a full-time employee or a temporary employee of such Protected Party, whether or not such employment is pursuant to a written agreement and whether or not\nsuch\nemployment\nis\nfor\na determined period or is at will, to cease working for such Protected Party.\n(c) For purposes of this Section 1, the following terms shall be defined as set forth below:\n(i) "Competitive,' with respect to particular products or services, shall mean products or services that are the same as or similar to the products or services of any Protected Party.\n(ii) "Confidential Information" shall mean data and information:\n(A relating to the business of Prosperity and its subsidiaries, including Prosperity Bank, regardless of whether the data or information constitutes a Trade Secret;\n(B) disclosed to Executive or of which Executive became aware as a consequence of Executive's relationship with Prosperity or Prosperity Bank;\n2\n(C) having value to Prosperity and, as a result of the consummation of the transactions contemplated by the Merger Agreement, A meris; and\n(D not tgenerally known to competitors of Prosperity or Ameris.\nConfidential Information shall include Trade Secrets, methods of operation, names of customers, price lists financial information and projections, personnel data and similar information; provided however that such term shall not mean\ndata or information that (x) has been voluntarily disclosed to the public by Prosperity or Ameris, except where such public disclosure has been made by Executive without authorization from Prosperity or Ameris, (y) has been\nindependently developed and disclosed by others, or (z) has otherwise entered the public domain through lawful means.\n(iii) "Restricted Territory" shall mean the geographic territory within a fifty (50) mile radius of Prosperity's office as of the date hereof located at 100 SouthPark Boulevard, St. Augustine, Florida 32086.\n(iv) "Trade Secret" shall mean information, without regard to form, including technical or nontechnical data, a formula, a patter, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial\nplans product plans or a list of actual or potential customers or suppliers that is not commonly known by or available to the public and which information:\n(A derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and\n(B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.\n(v) "Material Contact" shall mean contact between Executive and a customer or prospective customer: (A) with whom or which Executive dealt on behalf of any Protected Party (B) whose dealings with any Protected Party were\ncoordinated or supervised by Executive; (C about whom Executive obtained Confidential Information in the ordinary course of business as a result of Executive's association with any Protected Party; or (D) who receives products or\nservices as authorized by any Protected Party, the sale or provision of which results or resulted in compensation, commissions or eamings for Executive within two (2) years prior to the date of the termination of Executive's employment\nwith any Protected Party.\n(d) Executive acknowledges that irreparable loss and injury would result to Ameris upon the breach of any of the covenants contained in this Section 1 and that damages arising out of such breach would be difficult to ascertain. Executive\nhereby agrees that in addition to all other remedies provided at law or in equity Ameris may petition and obtain from a court of law or equity, without the necessity of proving actual damages and without posting any bond or other\nsecurity, both temporary and permanent injunctive relief to prevent a breach by Executive of any covenant contained in this Section 1, and shal be entitled to an equitable\n3\naccounting of all earnings, profits and other benefits arising out of any such breach. In the event that the provisions of this Section 1 should ever be determined to exceed the time, geographic or other limitations permitted by applicable\nlaw, then such provisions shall be modified so as to be enforceable to the maximum extent permitted by law If such provision(s) cannot be modified to be enforceable the provision(s) shall be severed from this Agreement to the extent\nunenforceable The remaining provisions and any partially enforceable provisions shal remain in full force and effect\n2. dditional Cash Consideration. In addition to the consideration payable to Executive as a result of the Merger and pursuant to the transactions contemplated by the Merger Agreement, Ameris agrees to pay Executive the sum of\n$171,000.00 within one (1) business day following the date hereof.\n3. Notices Any notice, consent demand, request or other communication given to a party hereto in connection with this Agreement shall be in writing and shal be deemed to have been given to such party (x) when delivered personally to\nsuch party or (y) provided that a written acknowledgment of receipt is obtained, five (5) days after being sent by prepaid certified or registered mail or two (2) days after being sent by a nationally recognized overnight courier, to the\naddress (if any) specified below for such party (or to such other address as such party shall have specified by ten (10) days' advance notice given in accordance with this Section 3) or (z) in the case of Ameris only, on the first business day\nafter it is sent by facsimile to the facsimile number set forth below (or to such other facsimile number as shall have specified by ten (10) days advance notice given in accordance with this Section 3), with a confirmatory copy sent by\ncertified or registered mail or by overnight courier in accordance with this Section 3.\nIf to Ameris:\nAmeris Bancorp\n310 First Street S.E.\nMoultrie, Georgia 31768\nAttn: Chief Executive Officer\nFax: (229) 890-2235\nIf to Executive:\nThe address of Executive's principal residence as it appears in Prosperity's records as of the date\nhereof.\n4.\nGoverning Law The validity, interpretation and performance of this Agreement shall be governed by the laws of the State of Georgia, without giving effect to the conflicts of laws principles thereof.\n5. Modification and Waiver. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing signed by Executive and Ameris. No waiver by either party hereto\nat any time of any breach by the other party hereto of, or compliance with, any condition or provision of this A greement to be performed by such other party shall be deemed a waiver of dissimilar provisions or conditions at the same or\nany prior subsequent time.\n6. Severability. The invalidity or unenforceability of any provisions of this A greement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect\n4\n7.\nCounterparts. This Agreement may be executed (and delivered via facsimile or other electronic transmission) in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and\nthe\nsame Agreement.\n8. Entire Agreement This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior agreements, understandings and arrangements, oral or written, between the parties hereto with respect to the subject\nmatter hereof\n9 No Right to Employment Nothing in this Agreement shall give or be deemed to give Executive the right to employment or employment benefits with Ameris.\n10. Construction; Interpretation. W henever the singular number is used in this Agreement a and when required by the context, the same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter\ngenders and vice versa. W Vhenever the words "include," "includes" or "including" are used in this Agreement they shall be deemed to be followed by the words "without limitation." The headings in this Agreement are for convenience\nonly and are in no way intended to describe, interpret define or limit the scope, extent or intent of this A greement or any of its provisions.\n[Signature page follows.]\n5\nIN WITNESS WHEREOF, Executive has executed and delivered this Agreement, and Ameris has caused this Agreement to be executed and delivered, all as of the day and year first above set forth\nAMERIS BANCORP\nBy:\nEdwin W Hortman, Jr.\nPresident and Chief Executive Officer\nExecutive:\nSHIRLEY P.FIANO\n6	EXHIBIT 10.9\nNON-COMPETITION AND NON -DISCLOSURE AGREEMENT\nThis Non-Competition and Non-Disclosure Agreement (the “Agreement”), is entered into as of the day of\n, 2013, by and between Ameris Bancorp, a Georgia corporation (“Ameris”), and Shirley P. Fiano, an individual resident\nof the State of Florida (“Executive”).\nRECITALS\nWHEREAS, pursuant to that certain Agreement and Plan of Merger dated as of May 1, 2013 (the “Merger Agreement”) by and between Ameris and The Prosperity Banking Company, a Florida corporation (“Prosperity”), Prosperity will\nmerge with and into Ameris (the “Merger”), as a result of which Prosperity Bank, a Florida state-chartered bank and wholly owned subsidiary of Prosperity (“Prosperity Bank”), will become a wholly owned subsidiary of Ameris that is to\nbe subsequently merged with and into Ameris Bank, a Georgia state-chartered bank and wholly owned subsidiary of Ameris (“Ameris Bank”);\nWHEREAS, Executive is a shareholder of Prosperity and, as a result of the Merger and pursuant to the transactions contemplated by the Merger Agreement, Executive is expected to receive significant consideration in exchange for the\nshares of Prosperity Common Stock (as defined in the Merger Agreement) held by Executive;\nWHEREAS, prior to the date hereof, Executive has served as Executive Vice President/Chief Banking Officer of Prosperity Bank and has been responsible for the management of the business and affairs of Prosperity and its subsidiaries,\nincluding Prosperity Bank, and, therefore, Executive has knowledge of the Confidential Information and Trade Secrets (each as hereinafter defined); and\nWHEREAS, as a result of the Merger, Ameris will succeed to all of the Confidential Information and Trade Secrets, for which Ameris, as of the Effective Time (as defined in the Merger Agreement), will have paid valuable consideration\nand desires reasonable protection; and\nWHEREAS, it is a material prerequisite to the consummation of the Merger that Executive enter into this Agreement;\nNOW, THEREFORE, in consideration of these premises and the mutual covenants and undertakings herein contained, Ameris and Executive, each intending to be legally bound, covenant and agree as follows:\n1. Restrictive Covenants.\n(a) Executive acknowledges that (i) Ameris has separately bargained and paid additional consideration for the restrictive covenants in this Agreement; and (ii) the types and periods of restrictions imposed by the covenants in this\nAgreement are fair and reasonable to Executive and such restrictions will not prevent Executive from earning a livelihood.\n(b) Having acknowledged the foregoing, Executive covenants and agrees with Ameris as follows:\n(i) From and after the Effective Time, Executive will not disclose or use any Confidential Information or Trade Secret for so long as such information remains Confidential Information or a Trade Secret, as applicable, for any purpose.\n(ii) For a period of one (1) year after the Effective Time, Executive will not (except on behalf of or with the prior written consent of Ameris), on Executive’s own behalf or in the service or on behalf of others, solicit or attempt to solicit\nany customer of Ameris, Ameris Bank, Prosperity or Prosperity Bank (each a “Protected Party”), including actively sought prospective customers of any Protected Party, with whom Executive had Material Contact (as defined below)\nduring Executive’s employment with any Protected Party, for the purpose of providing products or services that are Competitive (as hereinafter defined) with those offered or provided by any Protected Party.\n(iii) For a period of one (1) year after the Effective Time, Executive will not (except on behalf of or with the prior written consent of Ameris), either directly or indirectly, on Executive’s own behalf or in the service or on behalf of others,\nperform within the Restricted Territory (as hereinafter defined) duties and responsibilities that are the same as or substantially similar to those Executive performed for Prosperity or Prosperity Bank for any business which is the same as\nor essentially the same as the business conducted by any Protected Party.\n(iv) For a period of one (1) year after the Effective Time, Executive will not on Executive’s own behalf or in the service or on behalf of others, solicit or recruit or attempt to solicit or recruit, directly or by assisting others, any employee of\nany Protected Party, whether or not such employee is a full-time employee or a temporary employee of such Protected Party, whether or not such employment is pursuant to a written agreement and whether or not such employment is for\na determined period or is at will, to cease working for such Protected Party.\n(c) For purposes of this Section 1, the following terms shall be defined as set forth below:\n(i) “Competitive,” with respect to particular products or services, shall mean products or services that are the same as or similar to the products or services of any Protected Party.\n(ii) “Confidential Information” shall mean data and information:\n(A) relating to the business of Prosperity and its subsidiaries, including Prosperity Bank, regardless of whether the data or information constitutes a Trade Secret;\n(B) disclosed to Executive or of which Executive became aware as a consequence of Executive’s relationship with Prosperity or Prosperity Bank;\n2\n(C) having value to Prosperity and, as a result of the consummation of the transactions contemplated by the Merger Agreement, Ameris; and\n(D) not generally known to competitors of Prosperity or Ameris.\nConfidential Information shall include Trade Secrets, methods of operation, names of customers, price lists, financial information and projections, personnel data and similar information; provided, however, that such term shall not mean\ndata or information that (x) has been voluntarily disclosed to the public by Prosperity or Ameris, except where such public disclosure has been made by Executive without authorization from Prosperity or Ameris, (y) has been\nindependently developed and disclosed by others, or (z) has otherwise entered the public domain through lawful means.\n(iii) “Restricted Territory” shall mean the geographic territory within a fifty (50) mile radius of Prosperity’s office as of the date hereof located at 100 SouthPark Boulevard, St. Augustine, Florida 32086.\n(iv) “Trade Secret” shall mean information, without regard to form, including technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial\nplans, product plans or a list of actual or potential customers or suppliers, that is not commonly known by or available to the public and which information:\n(A) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and\n(B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.\n(v) “Material Contact” shall mean contact between Executive and a customer or prospective customer: (A) with whom or which Executive dealt on behalf of any Protected Party; (B) whose dealings with any Protected Party were\ncoordinated or supervised by Executive; (C) about whom Executive obtained Confidential Information in the ordinary course of business as a result of Executive’s association with any Protected Party; or (D) who receives products or\nservices as authorized by any Protected Party, the sale or provision of which results or resulted in compensation, commissions or earnings for Executive within two (2) years prior to the date of the termination of Executive’s employment\nwith any Protected Party.\n(d) Executive acknowledges that irreparable loss and injury would result to Ameris upon the breach of any of the covenants contained in this Section 1 and that damages arising out of such breach would be difficult to ascertain. Executive\nhereby agrees that, in addition to all other remedies provided at law or in equity, Ameris may petition and obtain from a court of law or equity, without the necessity of proving actual damages and without posting any bond or other\nsecurity, both temporary and permanent injunctive relief to prevent a breach by Executive of any covenant contained in this Section 1, and shall be entitled to an equitable\n3\naccounting of all earnings, profits and other benefits arising out of any such breach. In the event that the provisions of this Section 1 should ever be determined to exceed the time, geographic or other limitations permitted by applicable\nlaw, then such provisions shall be modified so as to be enforceable to the maximum extent permitted by law. If such provision(s) cannot be modified to be enforceable, the provision(s) shall be severed from this Agreement to the extent\nunenforceable. The remaining provisions and any partially enforceable provisions shall remain in full force and effect.\n2. Additional Cash Consideration. In addition to the consideration payable to Executive as a result of the Merger and pursuant to the transactions contemplated by the Merger Agreement, Ameris agrees to pay Executive the sum of\n$171,000.00 within one (1) business day following the date hereof.\n3. Notices. Any notice, consent, demand, request or other communication given to a party hereto in connection with this Agreement shall be in writing and shall be deemed to have been given to such party (x) when delivered personally to\nsuch party or (y) provided that a written acknowledgment of receipt is obtained, five (5) days after being sent by prepaid certified or registered mail or two (2) days after being sent by a nationally recognized overnight courier, to the\naddress (if any) specified below for such party (or to such other address as such party shall have specified by ten (10) days’ advance notice given in accordance with this Section 3) or (z) in the case of Ameris only, on the first business day\nafter it is sent by facsimile to the facsimile number set forth below (or to such other facsimile number as shall have specified by ten (10) days’ advance notice given in accordance with this Section 3), with a confirmatory copy sent by\ncertified or registered mail or by overnight courier in accordance with this Section 3.\nIf to Ameris:\nAmeris Bancorp\n310 First Street, S.E.\nMoultrie, Georgia 31768\nAttn: Chief Executive Officer\nFax: (229) 890-2235\nIf to Executive:\nThe address of Executive’s principal residence as it appears in Prosperity’s records as of the date\nhereof.\n4. Governing Law. The validity, interpretation and performance of this Agreement shall be governed by the laws of the State of Georgia, without giving effect to the conflicts of laws principles thereof.\n5. Modification and Waiver. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing signed by Executive and Ameris. No waiver by either party hereto\nat any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of dissimilar provisions or conditions at the same or\nany prior subsequent time.\n6. Severability. The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect.\n4\n7. Counterparts. This Agreement may be executed (and delivered via facsimile or other electronic transmission) in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the\nsame Agreement.\n8. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior agreements, understandings and arrangements, oral or written, between the parties hereto with respect to the subject\nmatter hereof.\n9. No Right to Employment. Nothing in this Agreement shall give or be deemed to give Executive the right to employment or employment benefits with Ameris.\n10. Construction; Interpretation. Whenever the singular number is used in this Agreement and when required by the context, the same shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter\ngenders and vice versa. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The headings in this Agreement are for convenience\nonly and are in no way intended to describe, interpret, define or limit the scope, extent or intent of this Agreement or any of its provisions.\n[Signature page follows.]\n5\nIN WITNESS WHEREOF, Executive has executed and delivered this Agreement, and Ameris has caused this Agreement to be executed and delivered, all as of the day and year first above set forth.\nAMERIS BANCORP\nBy:\nEdwin W. Hortman, Jr.\nPresident and Chief Executive Officer\nExecutive:\nSHIRLEY P. FIANO\n6
+1058cd8d541c0622ad959facd34235ea.pdf	effective_date jurisdiction party term	EX-10.19 5 dex1019.htm FORM OF CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.19\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT (the “Agreement”), dated as of\n, 2007, between\n(“Employee”), and Xinyuan Real Estate Co., Ltd., a limited company duly registered under the laws of the Cayman Islands\n(the “Company”).\nWHEREAS, Employee is employed by the Company pursuant to the Employment Agreement between the parties hereto, dated as of the date hereof\n(the “Employment Agreement”); and\nWHEREAS, during the Term (as defined in the Employment Agreement) Employee may become privy to certain Confidential Information (as\ndefined below) of the Company, and Employee understands that the confidentiality of such Confidential Information is extremely important to the\nCompany.\nNOW, THEREFORE, in consideration of Employee’s employment by the Company and for other good and valuable consideration, the receipt of\nwhich is hereby acknowledged, the parties hereto agree as follows:\nARTICLE 1 CONFIDENTIALITY\n1.1 Definition\n“Confidential Information” shall mean all information not generally available to the public, whether written (including, without limitation,\nelectronic) or oral and in whatever form or medium such information is embodied or transmitted, relating to the Company or any of its\nAffiliates (as defined below), or their respective personnel, equity holders, partners, investors, clients, or service providers and the nature and\noperation of their respective businesses, including without limitation information relating to (i) documents and technical information,\n(ii) operations and techniques, (iii) systems, computer code, and technologies, (iv) trade secrets, developments and inventions, (v) products,\nservices and operations, (vi) strategies, business plans and programs, (vii) financial condition, financial activities, and investments, and\n(viii) customer lists and other customer information. “Confidential Information” includes all notes, analyses or other documents or material,\nwhether prepared by Employee or otherwise, which contain or otherwise reflect such information.\n“Affiliates” means any equity holders, subsidiaries, directors, officers or any entity that, directly or indirectly through one or more\nintermediaries, controls, is controlled by, or is under common control with the Company, and, as to an individual, an immediate family\nmember or Affiliate of such family member shall be deemed to be an Affiliate of such individual.\n1.2 Confidentiality Obligation\n(1) During the term of the Employment Agreement and at any time after the termination of the Employment Agreement, the Employee shall\nabide by the confidentiality rules formulated by the Company.\n(a) Without the Company’s prior written consent, the Employee shall not, directly or indirectly (i) use any Confidential Information\nfor any purpose other than performance of his/her duties as an Employee; (ii) disclose in any form whatsoever any Confidential\nInformation to any third parties; (iii) acquire Confidential Information by any improper methods or allow third parties to do the\nsame; (iv) use or allow third parties to use any Confidential Information so acquired. For the purpose of this Agreement, “acquire\nby any improper methods” includes stealing, fraud, threat, bribery, unauthorized reproduction, breach of confidentiality\nobligations, persuasion of others to breach any confidentiality obligation or similar methods of the same nature.\n(b) The Employee is obliged to use his/her best efforts to prevent any third party from stealing any Confidential Information.\n(2) If the Company suffers any loss resulting directly or indirectly from the Employee’s breach of Section 1.2(1) hereof, the Company shall\nhave the right to impose a discipline penalty on the Employee, and the Employee shall compensate the Company for the loss according\nto the relevant provisions of the Employment Agreement and assume any other legal liabilities under PRC laws.\n(3) The obligations under Section 1.2(1) shall not apply to the following information which:\n(a)\nthe Employee can prove has entered into the public domain;\n(b) has been disclosed other than by the Employee’s breach of the provisions of this Agreement;\n(c)\nthe Employee can prove was acquired from a third party who was not subject to any confidentiality restrictions; or\n(d) was disclosed by the Employee as required by any applicable law or court order, under which circumstance, the Confidential\nInformation shall be disclosed only to the extent as expressly specified by such applicable law or court order.\n(4) The Employee understands and agrees that as may be required for the Company’s business operations and the Employee’s performance\nof his/her duties, the Employee may from time to time have access to Confidential Information owned by the Company’s subsidiaries\nand affiliates. For the purposes of this Article 1, the Company shall be deemed to include any subsidiaries or affiliates of the Company\nthat may, from time to time, become affiliated with the Company.\n(5) The Employee understands and agrees that the Company may from time to time receive confidential information of or relating to third\nparties which would require the Company to maintain in confidence. The Employee agrees to maintain in confidence for the Company\nand such third parties and in no event disclose to any party other than the Company and such third parties such confidential information.\n2\n(6) Nothing in this Agreement shall be deemed to exclude, weaken or waive any rights related to the protection of trade secrets that the\nCompany may have under PRC laws (including but not limited to the PRC Anti-Unfair Competition Law).\n1.3 Obligation to Return\n(1) Employee acknowledges that all physical manifestations of Confidential Information, including without limitation all originals and\ncopies of disks, code, programs, notes, records and documents in whatever form (including, without limitation, electronic form)\ngenerated by Employee or coming into Employee’s possession during the Term are the sole property of the Company. Upon termination\nof the Employment Agreement, or upon request of the Company at any time, Employee shall immediately deliver all copies of such\nmaterials to the Company and shall not retain any copies of any such materials in any form. Upon request of the Company, Employee\nshall certify in writing as to Employee’s compliance with this paragraph.\n(2) If the Company suffers losses from the Employee’s failure to return any of the above documents (including copies) or items to the\nCompany, the Employee shall be liable and compensate the Company for the losses. The Company may deduct an amount in respect of\nsuch losses from the last salary payment payable to the Employee, and shall have the right to take any other proper measures to protect\nits own legitimate rights and interests.\n1.4 Compelled Disclosure\nIn the event that Employee is compelled, by deposition, interrogatory, subpoena or civil investigative demand or other governmental or\nregulatory requirement, to disclose any of the Confidential Information, Employee will provide the Company with prompt notice thereof so\nthat the Company may seek an appropriate protective order or other remedy and/or waive compliance with the provisions hereof and Employee\nshall provide reasonable cooperation as may be requested by the Company in connection therewith. If such protective order or other remedy is\nnot obtained promptly, Employee may furnish that portion (and only that portion) of the Confidential Information, which, in the written\nopinion of counsel, Employee is legally required to disclose and will exercise Employee’s best efforts to obtain reliable assurance that\nconfidential treatment will be accorded any Confidential Information so furnished.\nARTICLE 2 INTELLECTUAL PROPERTY\n2.1 Definition\n“Intellectual Property Rights” shall mean all patents, trademarks, service marks, trade names, copyrights, rights in software, domain names,\nknow-how, rights in Creative Works (as defined below), licenses and other intellectual property rights, being used to conduct the business of\nthe Company and its affiliates as now operated.\n“Creative Works” shall mean, all designs, ideas, discoveries, inventions, products, computer programs, source codes, procedures,\nimprovements, documents, information, materials, drawings, specifications, reports, electronic media or other instruments made, conceived or\ndeveloped by the Employee alone or with others.\n3\n“Moral Rights” shall mean any right to claim of authorship of a work, any right to object to any distortion or other modification of a work, and\nany similar right, existing under the law of any country in the world, or under any treaty.\n2.2 Ownership of Intellectual Property Rights and Transfer of Rights\n(1) During the term of the Employment Agreement and at the termination thereof, the Employee shall promptly disclose to the Company,\nwithout additional compensation, the following, to the extent that such disclosure could reasonably be expected to be of interest to the\nCompany:\n(a)\nany Creative Works related to the Company’s business activities or to the Employee’s work with the Company;\n(b) any pricing or marketing strategies;\n(c)\nany products and services;\n(d) any other ideas or information; and\n(e)\nany Intellectual Property Rights;\nwhich are conceived, adapted, discovered, developed or improved by the Employee while employed by the Company.\n(2) The Employee undertakes and warrants that he/she will not, during the term of the Employment Agreement or at any time after the\ntermination hereof, infringe, misappropriate, acquire or use (unless acquires or uses during the performance of his/her duties as an\nemployee of the Company) any of the Company’s Intellectual Property Rights.\n(3) The Employee acknowledges and agrees that any Creative Works created by the Employee for the purpose of the Company’s business or\nprimarily using the Company’s resources during the term of the Employment Agreement are occupational creations. The right to apply\nfor patents, copyrights trademarks or other protection shall be vested in the Company, and the Company shall be the patentee or holder of\nthe copyright, trademark or other protection after any such protections granted. The Employee agrees to assist the Company in executing\nand providing any and all documents and rendering any assistance that is reasonably necessary to obtain any patent, copyright, trademark\nor other protection for the Creative Works in the PRC or any other countries. Subject to applicable laws and treaties, the Employee\nagrees to irrevocably transfer and assign to the Company any and all Moral Rights that the Employee may have in such Creative Works.\n(4) The Parties agree that during the term of the Employment Agreement, according to the Company’s arrangement, the Employee will\naccept the Company’s request to create copyright works. Works which are created under the sponsorship of the Company, and which\nrepresent the will of the Company, and for which the responsibility for the work is assumed by the Company, shall be classified as legal\nperson works. The author thereof shall be the Company and the copyright shall vest in the Company. Meanwhile, the Employee agrees\nthat during the term of the Employment Agreement, the copyright\n4\nof other works completed by the Employee primarily by using the Company’s material and technical resources also vest in the Company\n(if the Employee is entitled to the right of acknowledgement according to PRC laws, the Employee may enjoy the right of\nacknowledgement, however, other rights of the copyright shall still vest in the Company).\n(5) The Employee agrees that any other Intellectual Property Rights developed by the Employee for the fulfilment of tasks assigned by the\nCompany or primarily by using the Company’s material and technical resources during the term of the Employment Agreement shall\nvest in the Company.\n(6) In deciding the salary and welfare benefits payable to the Employee, the Company has taken into account, and such salary and welfare\nbenefits include, rewards for the Employee’s contribution to the Intellectual Property Rights. The Employee hereby agrees that it shall\nnot be entitled to any additional rewards or compensation for the Intellectual Property Rights hereunder from the Company.\n(7) The Employee agrees that any Intellectual Property Rights developed by the Employee related to his original job at the Company or to\nthe task assigned by the Company within one year after the termination of his employment with the Company shall vest in the Company.\n(8) The Employee hereby irrevocably assigns, transfers and conveys to the Company any Intellectual Property Rights which the Employee\ncreates or is involved in creating while employed by the Company (whether or not created during the Company’s regular working hours\nor on the Company’s premises) which do not vest in the Company according to Sections 2.2(2) to (7) above. Further, the Employee\nagrees that he will use his best efforts to protect the benefits the Company may obtain globally as a result of the Intellectual Property\nRights. During the period of his employment with the Company and after he leaves the employment of the Company, the Employee\nshall, at the Company’s request in writing from time to time and provided that the Company bears all the reasonable expenses, execute\nall such further documents and do all such further acts or things as may be necessary inside or outside the PRC to vest all right, title and\ninterest in such Intellectual Property Rights referred to in this Section 2.2(8) in the Company (including assisting the Company in\nhandling all related applications, registration formalities or other legal formalities (including serving as a witness at court)).\n(9) The Employee understands that Intellectual Property Rights developed by the Employee prior to the commencement of the term of the\nEmployment Agreement shall not be subject to Section 2.2(7), and at the written request of the Company from time to time, the\nEmployee will provide the Company with the related information to show that the relevant Intellectual Property Rights have been\ndeveloped prior to the commencement of the term of the Employment Agreement.\n(10) The Employee agrees that if the Intellectual Property Rights generated during the Employee’s employment and reduced into written\nrecords, including words, drafts, blueprints, notes, notebooks, drawings, schematics, prototypes, magnetically encoded media, or any\nrelated materials, such written records, shall be deemed to be the Company’s property. The Employee undertakes that during the term of\nthe Employment Agreement and at any time thereafter, he will not disclose the contents of any of such written records to any persons\nunless authorized by the Company in writing.\n5\nARTICLE 3 NON-COMPETITION\n3.1 Definition\n“Competitive Position” shall mean serving in a senior management capacity, as an employee, consultant, advisor or otherwise, for any person\nthat engages in a business similar to the business of the Company or any of its Affiliates as conducted or as intended to be conducted on or\nprior to the end of the Term, including, without limitation, any real estate investment, ownership, acquisition, sale, renting, leasing,\ndevelopment and/or management in the PRC.\n3.2 Non-Competition by the Employee\n(1) The Employee hereby irrevocably represents and warrants that during the period of the Employee’s employment with the Company and\nwithin two (2) years after the Employee leaves his/her post, without regard for the reason, the Employee shall not, directly or indirectly,\nand whether or not for compensation, either on his or her own behalf or as an employee, officer, agent, consultant, director, owner,\npartner, shareholder, investor, or in any other capacity (except in the capacity of an employee of the Company acting for the benefit of\nthe Company):\n(a)\nserve in a Competitive Position;\n(b) assist in any way any person or entity whose activities are competitive with or otherwise adverse to the Company’s own business\nactivities; or\n(c)\nengage in activities contrary or harmful to the interest of the Company or any of its affiliates, including but not limited to\n(i) employing or recruiting any present, former or future employee of the Company or any of its affiliates to serve in a\nCompetitive Position; (ii) owning equity in any other company that is in a business similar to the business of the Company or any\nof its Affiliates as conducted or as intended to be conducted on or prior to the end of the Term, including, without limitation, any\nreal estate investment, ownership, acquisition, sale, renting, leasing, development and/or management in the PRC, provided that\nthe ownership of less than five per cent (5%) of the outstanding capital stock of any publicly-traded company, and the ownership\nby Employee of such other investments, if any, as previously approved by the Company in accordance with the Company’s\napplicable policies, shall not constitute a violation of this provision; (iii) disclosing or misusing any Confidential Information; or\n(iv) participating in a hostile takeover attempt of the Company or any of its affiliates.\n(2) The Company may, at any time either before or after the expiry or termination of the Employment Agreement, shorten, or waive, the\nperiod for its non-competition obligation under Section 3.2 (1) above by giving notice to the Employee thereof. If, at any time either\nbefore or after the expiry or termination of the Employment Agreement, the Company does not require the Employee to perform any\nnon-competition obligations hereunder, the period for the non-competition obligation may be shortened to zero, and the Company does\nnot need to pay any economic compensation to the Employee.\n6\n(3) In consideration of the Employee’s performance of the provisions under Section 3.2 (1) above, the Company shall, from the day\nthe Employee leaves the employment of the Company, pay to the Employee the economic compensation relating to the non-\ncompetition in compliance with applicable laws and regulations, for the enforcement of such restriction of non-competition herein\nagainst the Employee, provided that such restriction can be waived in writing by the Company in its sole discretion.\n(4) Upon receipt of each payment from the Company, the Employee shall provide the Company with a receipt recording the payment\ndate signed by the Employee.\n(5) If the Company breaches the provisions of this Agreement by failing to pay to the Employee the economic compensation in a full\nand timely manner as set out in Section 3.2(3) above (unless otherwise notified pursuant to Section 3.2(2)) for a period of 30 days\nafter receipt of the Employee’s written notice, the Employee shall be discharged from his/her obligations under Section 3.2(1)\nabove.\n3.3 Non-Solicitation\nThe Employee agrees that, while employed by the Company and for a period of two (2) years after the date of termination of the employment\nrelationship, without regard to the reason, if any, such employment shall terminate, the Employee will not, directly or indirectly, and whether\nor not for compensation, either on his or her own behalf or as an employee, officer, agent, consultant, director, owner, partner, shareholder,\ninvestor, or in any other capacity:\n(1) induce or attempt to induce any employee, consultant, sales agent, supplier, customer or independent contractor of the Company to end\nhis or her relationship with the Company; or\n(2) employ, retain as a consultant or contractor, or cause to be so employed or retained, any employee (or former employee within two years\nafter the date such former employee ceases to be employed by the Company), consultant, sales agent, or independent contractor of the\nCompany; or\n(3) accept or solicit investment capital, directly or indirectly, from any individual (other than the general public) or entity, or from an officer,\npartner, or principal of any entity, from which the Company has accepted investment capital, or with which, prior to the Employee’s\ntermination date, the Company has held discussions regarding the possibility of securing investment capital; or\n(4) enter into or attempt to enter into a business relationship with any individual or entity with which, prior to the Employee’s termination\ndate, the Company had a business relationship, or with which, prior to the Employee’s termination date, the Company had held\ndiscussions regarding the possibility of entering into such an relationship, if such relationship would be competitive with or otherwise\ndeleterious to the interests of the Company; or\n7\n(5) do or say anything which is harmful to the reputation of the Company, or which may lead any person to cease to deal with the Company\non substantially equivalent terms as before or at all.\nARTICLE 4 MISCELLANEOUS\n4.1 Scope of Restrictions\nThe Employee’s covenants and restrictions of confidentiality, intellectual property and non-competition as contained in Articles 1, 2 and 3\nhereof shall extend to and for the benefit of the Company and its affiliate companies and to the nature and extent of their respective businesses,\nthroughout the term of Employee’s employment with the Company. Where reference is made to the business of the Company, such term shall\ninclude any business of the Company and its affiliated companies.\n4.2 Governing Law\nThis Agreement, and all matters relating hereto, including any matter or dispute arising out of the Agreement, shall be interpreted, governed,\nand enforced according to the laws of the State of New York.\n4.3 Injunctive Relief\nEmployee acknowledges that the Company will be irreparably injured if Employee violates this Agreement, that monetary damages will not be\nsufficient to compensate the Company and that the Company will be entitled to a court order enjoining any such violation without the posting\nof any bond.\n4.4 Successors and Assigns\nThis Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns,\nprovided that Employee may not assign any part of this Agreement without the Company’s prior written consent.\n4.5 Entire Agreement; Amendment\nThis Agreement is the entire agreement of the parties with respect to the subject matter hereof and may not be modified, amended, terminated,\nor waived, in whole or in part, except by written agreement of the parties hereto.\n4.6 Severability\nIf for any reason any part of this Agreement shall be held invalid, its invalidity shall not affect any other provision of this Agreement that can\nbe given effect without the invalid provision, and the parties shall in good faith seek to replace such provision with another provision that is\nvalid and that to the maximum extent possible achieves the intent and purposes of the original provision.\n8\n4.7 Notices\nNotices under this Agreement shall be given in writing to the relevant Party at the address stated herein (or to such other address as it shall\nhave notified the other Party previously in writing).\nIf to the Company:\nXinyuan Real Estate Co., Ltd.\n18 Xinyuan Road, Zhengzhou, Henan 450011, PRC\nFax: 86 371 6565 1686\nAttention: Yong Zhang\nIf to the Employee:\n[Name]\n[Address]\n4.8 Survival of Agreement\nThis Agreement shall survive the termination of the Employment Agreement and the Employee shall be liable for any damages suffered by the\nCompany as a result of a breach of this Agreement.\n[Signature page follows]\n9\nIN WITNESS WHEREOF, the undersigned have hereunto caused this Agreement to be executed as of the day and year first above written.\nXINYUAN REAL ESTATE CO., LTD.\nBy\nName: Yong Zhang\nTitle: Chairman and Chief Executive Officer\nDate:\n[Name of Employee]\nDate:\n10	EX-10.19 5 dex1019.htm FORM OF CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.19\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT (the “Agreement”), dated as of , 2007, between\n(“Employee”), and Xinyuan Real Estate Co., Ltd., a limited company duly registered under the laws of the Cayman Islands\n(the “Company”).\nWHEREAS, Employee is employed by the Company pursuant to the Employment Agreement between the parties hereto, dated as of the date hereof\n(the “Employment Agreement”); and\nWHEREAS, during the Term (as defined in the Employment Agreement) Employee may become privy to certain Confidential Information (as\ndefined below) of the Company, and Employee understands that the confidentiality of such Confidential Information is extremely important to the\nCompany.\nNOW, THEREFORE, in consideration of Employee’s employment by the Company and for other good and valuable consideration, the receipt of\nwhich is hereby acknowledged, the parties hereto agree as follows:\nARTICLE 1 CONFIDENTIALITY\n1.1 Definition\n“Confidential Information” shall mean all information not generally available to the public, whether written (including, without limitation,\nelectronic) or oral and in whatever form or medium such information is embodied or transmitted, relating to the Company or any of its\nAffiliates (as defined below), or their respective personnel, equity holders, partners, investors, clients, or service providers and the nature and\noperation of their respective businesses, including without limitation information relating to (i) documents and technical information,\n(ii) operations and techniques, (iii) systems, computer code, and technologies, (iv) trade secrets, developments and inventions, (v) products,\nservices and operations, (vi) strategies, business plans and programs, (vii) financial condition, financial activities, and investments, and\n(viii) customer lists and other customer information. “Confidential Information” includes all notes, analyses or other documents or material,\nwhether prepared by Employee or otherwise, which contain or otherwise reflect such information.\n“Affiliates” means any equity holders, subsidiaries, directors, officers or any entity that, directly or indirectly through one or more\nintermediaries, controls, is controlled by, or is under common control with the Company, and, as to an individual, an immediate family\nmember or Affiliate of such family member shall be deemed to be an Affiliate of such individual.\n1.2 Confidentiality Obligation @\n()\n3\n4)\n)\nDuring the term of the Employment Agreement and at any time after the termination of the Employment Agreement, the Employee shall\nabide by the confidentiality rules formulated by the Company.\n(a) Without the Company’s prior written consent, the Employee shall not, directly or indirectly (i) use any Confidential Information\nfor any purpose other than performance of his/her duties as an Employee; (ii) disclose in any form whatsoever any Confidential\nInformation to any third parties; (iii) acquire Confidential Information by any improper methods or allow third parties to do the\nsame; (iv) use or allow third parties to use any Confidential Information so acquired. For the purpose of this Agreement, “acquire\nby any improper methods” includes stealing, fraud, threat, bribery, unauthorized reproduction, breach of confidentiality\nobligations, persuasion of others to breach any confidentiality obligation or similar methods of the same nature.\n(b)  The Employee is obliged to use his/her best efforts to prevent any third party from stealing any Confidential Information.\nIf the Company suffers any loss resulting directly or indirectly from the Employee’s breach of Section 1.2(1) hereof, the Company shall\nhave the right to impose a discipline penalty on the Employee, and the Employee shall compensate the Company for the loss according\nto the relevant provisions of the Employment Agreement and assume any other legal liabilities under PRC laws.\nThe obligations under Section 1.2(1) shall not apply to the following information which:\n(a) the Employee can prove has entered into the public domain;\n(b)  has been disclosed other than by the Employee’s breach of the provisions of this Agreement;\n(© the Employee can prove was acquired from a third party who was not subject to any confidentiality restrictions; or\n(d)  was disclosed by the Employee as required by any applicable law or court order, under which circumstance, the Confidential\nInformation shall be disclosed only to the extent as expressly specified by such applicable law or court order.\nThe Employee understands and agrees that as may be required for the Company’s business operations and the Employee’s performance\nof his/her duties, the Employee may from time to time have access to Confidential Information owned by the Company’s subsidiaries\nand affiliates. For the purposes of this Article 1, the Company shall be deemed to include any subsidiaries or affiliates of the Company\nthat may, from time to time, become affiliated with the Company.\nThe Employee understands and agrees that the Company may from time to time receive confidential information of or relating to third\nparties which would require the Company to maintain in confidence. The Employee agrees to maintain in confidence for the Company\nand such third parties and in no event disclose to any party other than the Company and such third parties such confidential information.\n2\n1.3\n1.4\n2.1\n(6) Nothing in this Agreement shall be deemed to exclude, weaken or waive any rights related to the protection of trade secrets that the\nCompany may have under PRC laws (including but not limited to the PRC Anti-Unfair Competition Law).\nObligation to Return\n(1) Employee acknowledges that all physical manifestations of Confidential Information, including without limitation all originals and\ncopies of disks, code, programs, notes, records and documents in whatever form (including, without limitation, electronic form)\ngenerated by Employee or coming into Employee’s possession during the Term are the sole property of the Company. Upon termination\nof the Employment Agreement, or upon request of the Company at any time, Employee shall immediately deliver all copies of such\nmaterials to the Company and shall not retain any copies of any such materials in any form. Upon request of the Company, Employee\nshall certify in writing as to Employee’s compliance with this paragraph.\n(2) If the Company suffers losses from the Employee’s failure to return any of the above documents (including copies) or items to the\nCompany, the Employee shall be liable and compensate the Company for the losses. The Company may deduct an amount in respect of\nsuch losses from the last salary payment payable to the Employee, and shall have the right to take any other proper measures to protect\nits own legitimate rights and interests.\nCompelled Disclosure\nIn the event that Employee is compelled, by deposition, interrogatory, subpoena or civil investigative demand or other governmental or\nregulatory requirement, to disclose any of the Confidential Information, Employee will provide the Company with prompt notice thereof so\nthat the Company may seek an appropriate protective order or other remedy and/or waive compliance with the provisions hereof and Employee\nshall provide reasonable cooperation as may be requested by the Company in connection therewith. If such protective order or other remedy is\nnot obtained promptly, Employee may furnish that portion (and only that portion) of the Confidential Information, which, in the written\nopinion of counsel, Employee is legally required to disclose and will exercise Employee’s best efforts to obtain reliable assurance that\nconfidential treatment will be accorded any Confidential Information so furnished.\nARTICLE 2 INTELLECTUAL PROPERTY\nDefinition\n“Intellectual Property Rights” shall mean all patents, trademarks, service marks, trade names, copyrights, rights in software, domain names,\nknow-how, rights in Creative Works (as defined below), licenses and other intellectual property rights, being used to conduct the business of\nthe Company and its affiliates as now operated.\n“Creative Works” shall mean, all designs, ideas, discoveries, inventions, products, computer programs, source codes, procedures,\nimprovements, documents, information, materials, drawings, specifications, reports, electronic media or other instruments made, conceived or\ndeveloped by the Employee alone or with others.\n2.2\n“Moral Rights” shall mean any right to claim of authorship of a work, any right to object to any distortion or other modification of a work, and any similar right, existing under the law of any country in the world, or under any treaty. Ownership of Intellectual Property Rights and Transfer of Rights @\n()\n3\n4)\nDuring the term of the Employment Agreement and at the termination thereof, the Employee shall promptly disclose to the Company,\nwithout additional compensation, the following, to the extent that such disclosure could reasonably be expected to be of interest to the\nCompany:\n(a) any Creative Works related to the Company’s business activities or to the Employee’s work with the Company;\n(b)  any pricing or marketing strategies;\n(© any products and services;\n(d) any other ideas or information; and\n(e) any Intellectual Property Rights;\nwhich are conceived, adapted, discovered, developed or improved by the Employee while employed by the Company.\nThe Employee undertakes and warrants that he/she will not, during the term of the Employment Agreement or at any time after the\ntermination hereof, infringe, misappropriate, acquire or use (unless acquires or uses during the performance of his/her duties as an\nemployee of the Company) any of the Company’s Intellectual Property Rights.\nThe Employee acknowledges and agrees that any Creative Works created by the Employee for the purpose of the Company’s business or\nprimarily using the Company’s resources during the term of the Employment Agreement are occupational creations. The right to apply\nfor patents, copyrights trademarks or other protection shall be vested in the Company, and the Company shall be the patentee or holder of\nthe copyright, trademark or other protection after any such protections granted. The Employee agrees to assist the Company in executing\nand providing any and all documents and rendering any assistance that is reasonably necessary to obtain any patent, copyright, trademark\nor other protection for the Creative Works in the PRC or any other countries. Subject to applicable laws and treaties, the Employee\nagrees to irrevocably transfer and assign to the Company any and all Moral Rights that the Employee may have in such Creative Works.\nThe Parties agree that during the term of the Employment Agreement, according to the Company’s arrangement, the Employee will\naccept the Company’s request to create copyright works. Works which are created under the sponsorship of the Company, and which\nrepresent the will of the Company, and for which the responsibility for the work is assumed by the Company, shall be classified as legal\nperson works. The author thereof shall be the Company and the copyright shall vest in the Company. Meanwhile, the Employee agrees\nthat during the term of the Employment Agreement, the copyright\n4\n)\n(6)\n()\n(8)\n©)\n(10)\nof other works completed by the Employee primarily by using the Company’s material and technical resources also vest in the Company\n(if the Employee is entitled to the right of acknowledgement according to PRC laws, the Employee may enjoy the right of\nacknowledgement, however, other rights of the copyright shall still vest in the Company).\nThe Employee agrees that any other Intellectual Property Rights developed by the Employee for the fulfilment of tasks assigned by the\nCompany or primarily by using the Company’s material and technical resources during the term of the Employment Agreement shall\nvest in the Company.\nIn deciding the salary and welfare benefits payable to the Employee, the Company has taken into account, and such salary and welfare\nbenefits include, rewards for the Employee’s contribution to the Intellectual Property Rights. The Employee hereby agrees that it shall\nnot be entitled to any additional rewards or compensation for the Intellectual Property Rights hereunder from the Company.\nThe Employee agrees that any Intellectual Property Rights developed by the Employee related to his original job at the Company or to\nthe task assigned by the Company within one year after the termination of his employment with the Company shall vest in the Company.\nThe Employee hereby irrevocably assigns, transfers and conveys to the Company any Intellectual Property Rights which the Employee\ncreates or is involved in creating while employed by the Company (whether or not created during the Company’s regular working hours\nor on the Company’s premises) which do not vest in the Company according to Sections 2.2(2) to (7) above. Further, the Employee\nagrees that he will use his best efforts to protect the benefits the Company may obtain globally as a result of the Intellectual Property\nRights. During the period of his employment with the Company and after he leaves the employment of the Company, the Employee\nshall, at the Company’s request in writing from time to time and provided that the Company bears all the reasonable expenses, execute\nall such further documents and do all such further acts or things as may be necessary inside or outside the PRC to vest all right, title and\ninterest in such Intellectual Property Rights referred to in this Section 2.2(8) in the Company (including assisting the Company in\nhandling all related applications, registration formalities or other legal formalities (including serving as a witness at court)).\nThe Employee understands that Intellectual Property Rights developed by the Employee prior to the commencement of the term of the\nEmployment Agreement shall not be subject to Section 2.2(7), and at the written request of the Company from time to time, the\nEmployee will provide the Company with the related information to show that the relevant Intellectual Property Rights have been\ndeveloped prior to the commencement of the term of the Employment Agreement.\nThe Employee agrees that if the Intellectual Property Rights generated during the Employee’s employment and reduced into written\nrecords, including words, drafts, blueprints, notes, notebooks, drawings, schematics, prototypes, magnetically encoded media, or any\nrelated materials, such written records, shall be deemed to be the Company’s property. The Employee undertakes that during the term of\nthe Employment Agreement and at any time thereafter, he will not disclose the contents of any of such written records to any persons\nunless authorized by the Company in writing.\n3.1\n3.2\nDefinition ARTICLE 3 NON-COMPETITION\n“Competitive Position” shall mean serving in a senior management capacity, as an employee, consultant, advisor or otherwise, for any person that engages in a business similar to the business of the Company or any of its Affiliates as conducted or as intended to be conducted on or prior to the end of the Term, including, without limitation, any real estate investment, ownership, acquisition, sale, renting, leasing, development and/or management in the PRC. Non-Competition by the Employee @\n()\nThe Employee hereby irrevocably represents and warrants that during the period of the Employee’s employment with the Company and within two (2) years after the Employee leaves his/her post, without regard for the reason, the Employee shall not, directly or indirectly, and whether or not for compensation, either on his or her own behalf or as an employee, officer, agent, consultant, director, owner, partner, shareholder, investor, or in any other capacity (except in the capacity of an employee of the Company acting for the benefit of the Company):\n(a) serve in a Competitive Position;\n(b)  assistin any way any person or entity whose activities are competitive with or otherwise adverse to the Company’s own business\nactivities; or\n(0 engage in activities contrary or harmful to the interest of the Company or any of its affiliates, including but not limited to\n(i) employing or recruiting any present, former or future employee of the Company or any of its affiliates to serve in a\nCompetitive Position; (ii) owning equity in any other company that is in a business similar to the business of the Company or any\nof its Affiliates as conducted or as intended to be conducted on or prior to the end of the Term, including, without limitation, any\nreal estate investment, ownership, acquisition, sale, renting, leasing, development and/or management in the PRC, provided that\nthe ownership of less than five per cent (5%) of the outstanding capital stock of any publicly-traded company, and the ownership\nby Employee of such other investments, if any, as previously approved by the Company in accordance with the Company’s\napplicable policies, shall not constitute a violation of this provision; (iii) disclosing or misusing any Confidential Information; or\n(iv) participating in a hostile takeover attempt of the Company or any of its affiliates.\nThe Company may, at any time either before or after the expiry or termination of the Employment Agreement, shorten, or waive, the period for its non-competition obligation under Section 3.2 (1) above by giving notice to the Employee thereof. If, at any time either before or after the expiry or termination of the Employment Agreement, the Company does not require the Employee to perform any non-competition obligations hereunder, the period for the non-competition obligation may be shortened to zero, and the Company does not need to pay any economic compensation to the Employee. 6\n(3)  Inconsideration of the Employee’s performance of the provisions under Section 3.2 (1) above, the Company shall, from the day\nthe Employee leaves the employment of the Company, pay to the Employee the economic compensation relating to the non-\ncompetition in compliance with applicable laws and regulations, for the enforcement of such restriction of non-competition herein\nagainst the Employee, provided that such restriction can be waived in writing by the Company in its sole discretion.\n(49)  Upon receipt of each payment from the Company, the Employee shall provide the Company with a receipt recording the payment\ndate signed by the Employee.\n(5)  If the Company breaches the provisions of this Agreement by failing to pay to the Employee the economic compensation in a full\nand timely manner as set out in Section 3.2(3) above (unless otherwise notified pursuant to Section 3.2(2)) for a period of 30 days\nafter receipt of the Employee’s written notice, the Employee shall be discharged from his/her obligations under Section 3.2(1)\nabove.\n3.3 Non-Solicitation The Employee agrees that, while employed by the Company and for a period of two (2) years after the date of termination of the employment relationship, without regard to the reason, if any, such employment shall terminate, the Employee will not, directly or indirectly, and whether or not for compensation, either on his or her own behalf or as an employee, officer, agent, consultant, director, owner, partner, shareholder, investor, or in any other capacity: @\n()\n3\n4)\ninduce or attempt to induce any employee, consultant, sales agent, supplier, customer or independent contractor of the Company to end\nhis or her relationship with the Company; or\nemploy, retain as a consultant or contractor, or cause to be so employed or retained, any employee (or former employee within two years\nafter the date such former employee ceases to be employed by the Company), consultant, sales agent, or independent contractor of the\nCompany; or\naccept or solicit investment capital, directly or indirectly, from any individual (other than the general public) or entity, or from an officer,\npartner, or principal of any entity, from which the Company has accepted investment capital, or with which, prior to the Employee’s\ntermination date, the Company has held discussions regarding the possibility of securing investment capital; or\nenter into or attempt to enter into a business relationship with any individual or entity with which, prior to the Employee’s termination\ndate, the Company had a business relationship, or with which, prior to the Employee’s termination date, the Company had held\ndiscussions regarding the possibility of entering into such an relationship, if such relationship would be competitive with or otherwise\ndeleterious to the interests of the Company; or\n4.1\n4.2\n4.3\n4.4\n4.5\n4.6\n(5) do or say anything which is harmful to the reputation of the Company, or which may lead any person to cease to deal with the Company\non substantially equivalent terms as before or at all.\nARTICLE 4 MISCELLANEOUS\nScope of Restrictions\nThe Employee’s covenants and restrictions of confidentiality, intellectual property and non-competition as contained in Articles 1, 2 and 3\nhereof shall extend to and for the benefit of the Company and its affiliate companies and to the nature and extent of their respective businesses,\nthroughout the term of Employee’s employment with the Company. Where reference is made to the business of the Company, such term shall\ninclude any business of the Company and its affiliated companies.\nGoverning Law\nThis Agreement, and all matters relating hereto, including any matter or dispute arising out of the Agreement, shall be interpreted, governed,\nand enforced according to the laws of the State of New York.\nInjunctive Relief\nEmployee acknowledges that the Company will be irreparably injured if Employee violates this Agreement, that monetary damages will not be\nsufficient to compensate the Company and that the Company will be entitled to a court order enjoining any such violation without the posting\nof any bond.\nSuccessors and Assigns\nThis Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns,\nprovided that Employee may not assign any part of this Agreement without the Company’s prior written consent.\nEntire Agreement; Amendment\nThis Agreement is the entire agreement of the parties with respect to the subject matter hereof and may not be modified, amended, terminated,\nor waived, in whole or in part, except by written agreement of the parties hereto.\nSeverability\nIf for any reason any part of this Agreement shall be held invalid, its invalidity shall not affect any other provision of this Agreement that can\nbe given effect without the invalid provision, and the parties shall in good faith seek to replace such provision with another provision that is\nvalid and that to the maximum extent possible achieves the intent and purposes of the original provision.\n8\n4.7 Notices\nNotices under this Agreement shall be given in writing to the relevant Party at the address stated herein (or to such other address as it shall\nhave notified the other Party previously in writing).\nIf to the Company:\nXinyuan Real Estate Co., Ltd.\n18 Xinyuan Road, Zhengzhou, Henan 450011, PRC\nFax: 86 371 6565 1686\nAttention: Yong Zhang\nIf to the Employee:\n[Name]\n[Address]\n4.8 Survival of Agreement\nThis Agreement shall survive the termination of the Employment Agreement and the Employee shall be liable for any damages suffered by the\nCompany as a result of a breach of this Agreement.\n[Signature page follows]\n9\nIN WITNESS WHEREOF, the undersigned have hereunto caused this Agreement to be executed as of the day and year first above written.\nXINYUAN REAL ESTATE CO., LTD.\nBy\nName: Yong Zhang\nTitle: Chairman and Chief Executive Officer\nDate:\n[Name of Employee]\nDate:\n10	EX-10.19 5 lex1019.htm FORM OF CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.19\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT (the "Agreement"), dated as of 2007, between\n("Employee"), and Xinyuan Real Estate Co., Ltd., a limited company duly registered under the laws of the Cayman Islands\n(the "Company").\nWHEREAS, Employee is employed by the Company pursuant to the Employment Agreement between the parties hereto, dated as of the date hereof\n(the "Employment Agreement"); and\nWHEREAS, during the Term (as defined in the Employment Agreement) Employee may become privy to certain Confidential Information (as\ndefined below) of the Company, and Employee understands that the confidentiality of such Confidential Information is extremely important to the\nCompany.\nNOW, THEREFORE, in consideration of Employee's employment by the Company and for other good and valuable consideration, the receipt of\nwhich is hereby acknowledged, the parties hereto agree as follows:\nARTICLE 1 CONFIDENTIALITY\n1.1 Definition\n"Confidential Information" shall mean all information not generally available to the public, whether written (including, without limitation,\nelectronic) or oral and in whatever form or medium such information is embodied or transmitted, relating to the Company or any of its\nAffiliates (as defined below), or their respective personnel, equity holders, partners, investors, clients, or service providers and the nature and\noperation of their respective businesses, including without limitation information relating to (i) documents and technical information,\n(ii) operations and techniques, (iii) systems, computer code, and technologies, (iv) trade secrets, developments and inventions, (v) products,\nservices and operations, (vi) strategies, business plans and programs, (vii) financial condition, financial activities, and investments, and\n(viii) customer lists and other customer information. "Confidential Information" includes all notes, analyses or other documents or material,\nwhether prepared by Employee or otherwise, which contain or otherwise reflect such information.\n"Affiliates" means any equity holders, subsidiaries, directors, officers or any entity that, directly or indirectly through one or more\nintermediaries, controls, is controlled by, or is under common control with the Company, and, as to an individual, an immediate family\nmember or Affiliate of such family member shall be deemed to be an Affiliate of such individual.\n1.2 Confidentiality Obligation\n(1)\nDuring the term of the Employment Agreement and at any time after the termination of the Employment Agreement, the Employee shall\nabide by the confidentiality rules formulated by the Company.\n(a)\nWithout the Company's prior written consent, the Employee shall not, directly or indirectly (i) use any Confidential Information\nfor any purpose other than performance of his/her duties as an Employee; (ii) disclose in any form whatsoever any Confidential\nInformation to any third parties; (iii) acquire Confidential Information by any improper methods or allow third parties to do the\nsame; (iv) use or allow third parties to use any Confidential Information so acquired. For the purpose of this Agreement, "acquire\nby any improper methods" includes stealing, fraud, threat, bribery, unauthorized reproduction, breach of confidentiality\nobligations, persuasion of others to breach any confidentiality obligation or similar methods of the same nature.\n(b)\nThe Employee is obliged to use his/her best efforts to prevent any third party from stealing any Confidential Information.\n(2)\nIf the Company suffers any loss resulting directly or indirectly from the Employee's breach of Section 1.2(1) hereof, the Company shall\nhave the right to impose a discipline penalty on the Employee, and the Employee shall compensate the Company for the loss according\nto the relevant provisions of the Employment Agreement and assume any other legal liabilities under PRC laws.\n(3) The obligations under Section 1.2(1) shall not apply to the following information which:\n(a)\nthe Employee can prove has entered into the public domain;\n(b)\nhas been disclosed other than by the Employee's breach of the provisions of this Agreement;\n(c)\nthe Employee can prove was acquired from a third party who was not subject to any confidentiality restrictions; or\n(d)\nwas disclosed by the Employee as required by any applicable law or court order, under which circumstance, the Confidential\nInformation shall be disclosed only to the extent as expressly specified by such applicable law or court order.\n(4)\nThe Employee understands and agrees that as may be required for the Company's business operations and the Employee's performance\nof his/her duties, the Employee may from time to time have access to Confidential Information owned by the Company's subsidiaries\nand affiliates. For the purposes of this Article 1, the Company shall be deemed to include any subsidiaries or affiliates of the Company\nthat may, from time to time, become affiliated with the Company.\n(5) The Employee understands and agrees that the Company may from time to time receive confidential information of or relating to third\nparties which would require the Company to maintain in confidence. The Employee agrees to maintain in confidence for the Company\nand such third parties and in no event disclose to any party other than the Company and such third parties such confidential information.\n2\n(6) Nothing in this Agreement shall be deemed to exclude, weaken or waive any rights related to the protection of trade secrets that the\nCompany may have under PRC laws (including but not limited to the PRC Anti-Unfair Competition Law).\n1.3 Obligation to Return\n(1)\nEmployee acknowledges that all physical manifestations of Confidential Information, including without limitation all originals and\ncopies of disks, code, programs, notes, records and documents in whatever form (including, without limitation, electronic form)\ngenerated by Employee or coming into Employee's possession during the Term are the sole property of the Company. Upon termination\nof the Employment Agreement, or upon request of the Company at any time, Employee shall immediately deliver all copies of such\nmaterials to the Company and shall not retain any copies of any such materials in any form. Upon request of the Company, Employee\nshall certify in writing as to Employee's compliance with this paragraph.\n(2)\nIf the Company suffers losses from the Employee's failure to return any of the above documents (including copies) or items to the\nCompany, the Employee shall be liable and compensate the Company for the losses. The Company may deduct an amount in respect of\nsuch losses from the last salary payment payable to the Employee, and shall have the right to take any other proper measures to protect\nits own legitimate rights and interests.\n1.4 Compelled Disclosure\nIn the event that Employee is compelled, by deposition, interrogatory, subpoena or civil investigative demand or other governmental or\nregulatory requirement, to disclose any of the Confidential Information, Employee will provide the Company with prompt notice thereof so\nthat the Company may seek an appropriate protective order or other remedy and/or waive compliance with the provisions hereof and Employee\nshall provide reasonable cooperation as may be requested by the Company in connection therewith. If such protective order or other remedy is\nnot obtained promptly, Employee may furnish that portion (and only that portion) of the Confidential Information, which, in the written\nopinion of counsel, Employee is legally required to disclose and will exercise Employee's best efforts to obtain reliable assurance that\nconfidential treatment will be accorded any Confidential Information so furnished.\nARTICLE 2 INTELLECTUAL PROPERTY\n2.1 Definition\n"Intellectual Property Rights" shall mean all patents, trademarks, service marks, trade names, copyrights, rights in software, domain names,\nknow-how, rights in Creative Works (as defined below), licenses and other intellectual property rights, being used to conduct the business of\nthe Company and its affiliates as now operated.\n"Creative Works" shall mean, all designs, ideas, discoveries, inventions, products, computer programs, source codes, procedures,\nimprovements, documents, information, materials, drawings, specifications, reports, electronic media or other instruments made, conceived or\ndeveloped by the Employee alone or with others.\n3\n"Moral Rights" shall mean any right to claim of authorship of a work, any right to object to any distortion or other modification of a work, and\nany similar right, existing under the law of any country in the world, or under any treaty.\n2.2 Ownership of Intellectual Property Rights and Transfer of Rights\n(1)\nDuring the term of the Employment Agreement and at the termination thereof, the Employee shall promptly disclose to the Company,\nwithout additional compensation, the following, to the extent that such disclosure could reasonably be expected to be of interest to the\nCompany:\n(a)\nany Creative Works related to the Company's business activities or to the Employee's work with the Company;\n(b)\nany pricing or marketing strategies;\n(c)\nany products and services;\n(d)\nany other ideas or information; and\n(e)\nany Intellectual Property Rights;\nwhich are conceived, adapted, discovered, developed or improved by the Employee while employed by the Company.\n(2) The Employee undertakes and warrants that he/she will not, during the term of the Employment Agreement or at any time after the\ntermination hereof, infringe, misappropriate, acquire or use (unless acquires or uses during the performance of his/her duties as an\nemployee of the Company) any of the Company's Intellectual Property Rights.\n(3) The Employee acknowledges and agrees that any Creative Works created by the Employee for the purpose of the Company's business\nor\nprimarily using the Company's resources during the term of the Employment Agreement are occupational creations. The right to apply\nfor patents, copyrights trademarks or other protection shall be vested in the Company, and the Company shall be the patentee or holder of\nthe copyright, trademark or other protection after any such protections granted. The Employee agrees to assist the Company in executing\nand providing any and all documents and rendering any assistance that is reasonably necessary to obtain any patent, copyright, trademark\nor other protection for the Creative Works in the PRC or any other countries. Subject to applicable laws and treaties, the Employee\nagrees to irrevocably transfer and assign to the Company any and all Moral Rights that the Employee may have in such Creative Works.\n(4)\nThe Parties agree that during the term of the Employment Agreement, according to the Company's arrangement, the Employee will\naccept the Company's request to create copyright works. Works which are created under the sponsorship of the Company, and which\nrepresent the will of the Company, and for which the responsibility for the work is assumed by the Company, shall be classified as legal\nperson works. The author thereof shall be the Company and the copyright shall vest in the Company. Meanwhile, the Employee agrees\nthat during the term of the Employment Agreement, the copyright\n4\nof other works completed by the Employee primarily by using the Company's material and technical resources also vest in the Company\n(if the Employee is entitled to the right of acknowledgement according to PRC laws, the Employee may enjoy the right of\nacknowledgement, however, other rights of the copyright shall still vest in the Company).\n(5)\nThe Employee agrees that any other Intellectual Property Rights developed by the Employee for the fulfilment of tasks assigned by the\nCompany or primarily by using the Company's material and technical resources during the term of the Employment Agreement\nshall\nvest in the Company.\n(6)\nIn deciding the salary and welfare benefits payable to the Employee, the Company has taken into account, and such salary and welfare\nbenefits include, rewards for the Employee's contribution to the Intellectual Property Rights. The Employee hereby agrees that it shall\nnot be entitled to any additional rewards or compensation for the Intellectual Property Rights hereunder from the Company.\n(7) The Employee agrees that any Intellectual Property Rights developed by the Employee related to his original job at the Company or to\nthe task assigned by the Company within one year after the termination of his employment with the Company shall vest in the Company.\n(8)\nThe Employee hereby irrevocably assigns, transfers and conveys to the Company any Intellectual Property Rights which the Employee\ncreates or is involved in creating while employed by the Company (whether or not created during the Company's regular working hours\nor on the Company's premises) which do not vest in the Company according to Sections 2.2(2) to (7) above. Further, the Employee\nagrees that he will use his best efforts to protect the benefits the Company may obtain globally as a result of the Intellectual Property\nRights During the period of his employment with the Company and after he leaves the employment of the Company, the Employee\nshall, at the Company's request in writing from time to time and provided that the Company bears all the reasonable expenses, execute\nall such further documents and do all such further acts or things as may be necessary inside or outside the PRC to vest all right, title\nand\ninterest in such Intellectual Property Rights referred to in this Section 2.2(8) in the Company (including assisting the Company\nin\nhandling all related applications, registration formalities or other legal formalities (including serving as a witness at court)).\n(9)\nThe Employee understands that Intellectual Property Rights developed by the Employee prior to the commencement of the term of the\nEmployment Agreement shall not be subject to Section 2.2(7), and at the written request of the Company from time to time, the\nEmployee will provide the Company with the related information to show that the relevant Intellectual Property Rights have been\ndeveloped prior to the commencement of the term of the Employment Agreement.\n(10) The Employee agrees that if the Intellectual Property Rights generated during the Employee's employment and reduced into written\nrecords, including words, drafts, blueprints, notes, notebooks, drawings, schematics, prototypes, magnetically encoded media, or any\nrelated materials, such written records, shall be deemed to be the Company's property. The Employee undertakes that during the term of\nthe Employment Agreement and at any time thereafter, he will not disclose the contents of any of such written records to any persons\nunless authorized by the Company in writing.\n5\nARTICLE 3 NON-COMPETITION\n3.1 Definition\n"Competitive Position" shall mean serving in a senior management capacity, as an employee, consultant, advisor or otherwise, for any person\nthat engages in a business similar to the business of the Company or any of its Affiliates as conducted or as intended to be conducted on\nor\nprior to the end of the Term, including, without limitation, any real estate investment, ownership, acquisition, sale, renting, leasing,\ndevelopment and/or management in the PRC.\n3.2 Non-Competition by the Employee\n(1)\nThe Employee hereby irrevocably represents and warrants that during the period of the Employee's employment with the Company and\nwithin two (2) years after the Employee leaves his/her post, without regard for the reason, the Employee shall not, directly or indirectly,\nand whether or not for compensation, either on his or her own behalf or as an employee, officer, agent, consultant, director, owner,\npartner, shareholder, investor, or in any other capacity (except in the capacity of an employee of the Company acting for the benefit of\nthe Company):\n(a)\nserve in a Competitive Position;\n(b)\nassist in any way any person or entity whose activities are competitive with or otherwise adverse to the Company's own business\nactivities; or\n(c)\nengage in activities contrary or harmful to the interest of the Company or any of its affiliates, including but not limited to\n(i) employing or recruiting any present, former or future employee of the Company or any of its affiliates to serve in a\nCompetitive Position; (ii) owning equity in any other company that is in a business similar to the business of the Company or any\nof its Affiliates as conducted or as intended to be conducted on or prior to the end of the Term, including, without limitation, any\nreal estate investment, ownership, acquisition, sale, renting, leasing, development and/or management in the PRC, provided that\nthe ownership of less than five per cent (5%) of the outstanding capital stock of any publicly-traded company, and the ownership\nby\nEmployee of such other investments, if any, as previously approved by the Company in accordance with the Company's\napplicable policies, shall not constitute a violation of this provision; (iii) disclosing or misusing any Confidential Information; or\n(iv) participating in a hostile takeover attempt of the Company or any of its affiliates.\n(2)\nThe Company may, at any time either before or after the expiry or termination of the Employment Agreement, shorten, or waive, the\nperiod for its non-competition obligation under Section 3.2 (1) above by giving notice to the Employee thereof. If, at any time either\nbefore or after the expiry or termination of the Employment Agreement, the Company does not require the Employee to perform any\nnon-competition obligations hereunder, the period for the non-competition obligation may be shortened to zero, and the Company does\nnot need to pay any economic compensation to the Employee.\n6\n(3)\nIn consideration of the Employee's performance of the provisions under Section 3.2 (1) above, the Company shall, from the day\nthe Employee leaves the employment of the Company, pay to the Employee the economic compensation relating to the non-\ncompetition in compliance with applicable laws and regulations, for the enforcement of such restriction of non-competition herein\nagainst the Employee, provided that such restriction can be waived in writing by the Company in its sole discretion.\n(4)\nUpon receipt of each payment from the Company, the Employee shall provide the Company with a receipt recording the payment\ndate signed by the Employee.\n(5)\nIf the Company breaches the provisions of this Agreement by failing to pay to the Employee the economic compensation in a full\nand timely manner as set out in Section 3.2(3) above (unless otherwise notified pursuant to Section 3.2(2)) for a period of 30 days\nafter receipt of the Employee's written notice, the Employee shall be discharged from his/her obligations under Section 3.2(1)\nabove.\n3.3 Non-Solicitation\nThe\nEmployee\nagrees that, while employed by the Company and for a period of two (2) years after the date of termination of the employment\nrelationship, without regard to the reason, if any, such employment shall terminate, the Employee will not, directly or indirectly, and whether\nor not for compensation, either on his or her own behalf or as an employee, officer, agent, consultant, director, owner, partner, shareholder,\ninvestor, or in any other capacity:\n(1)\ninduce or attempt to induce any employee, consultant, sales agent, supplier, customer or independent contractor of the Company to end\nhis or her relationship with the Company; or\n(2)\nemploy, retain as a consultant or contractor, or cause to be so employed or retained, any employee (or former employee within two years\nafter the date such former employee ceases to be employed by the Company), consultant, sales agent, or independent contractor of the\nCompany; or\n(3)\naccept or solicit investment capital, directly or indirectly, from any individual (other than the general public) or entity, or from an officer,\npartner, or principal of any entity, from which the Company has accepted investment capital, or with which, prior to the Employee's\ntermination date, the Company has held discussions regarding the possibility of securing investment capital; or\n(4) enter into or attempt to enter into a business relationship with any individual or entity with which, prior to the Employee's termination\ndate, the Company had a business relationship, or with which, prior to the Employee's termination date, the Company had held\ndiscussions regarding the possibility of entering into such an relationship, if such relationship would be competitive with or otherwise\ndeleterious to the interests of the Company; or\n7\n(5) do or say anything which is harmful to the reputation of the Company, or which may lead any person to cease to deal with the Company\non substantially equivalent terms as before or at all.\nARTICLE 4 MISCELLANEOUS\n4.1 Scope of Restrictions\nThe Employee's covenants and restrictions of confidentiality, intellectual property and non-competition as contained in Articles 1, 2 and 3\nhereof shall extend to and for the benefit of the Company and its affiliate companies and to the nature and extent of their respective businesses,\nthroughout the term of Employee's employment with the Company. Where reference is made to the business of the Company, such term shall\ninclude any business of the Company and its affiliated companies.\n4.2 Governing Law\nThis Agreement, and all matters relating hereto, including any matter or dispute arising out of the Agreement, shall be interpreted, governed,\nand enforced according to the laws of the State of New York.\n4.3 Injunctive Relief\nEmployee acknowledges that the Company will be irreparably injured if Employee violates this Agreement, that monetary damages will not be\nsufficient to compensate the Company and that the Company will be entitled to a court order enjoining any such violation without the posting\nof any bond.\n4.4 Successors and Assigns\nThis Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns,\nprovided that Employee may not assign any part of this Agreement without the Company's prior written consent.\n4.5 Entire Agreement; Amendment\nThis Agreement is the entire agreement of the parties with respect to the subject matter hereof and may not be modified, amended, terminated,\nor waived, in whole or in part, except by written agreement of the parties hereto.\n4.6 Severability\nIf\nfor any reason any part of this Agreement shall be held invalid, its invalidity shall not affect any other provision of this Agreement that can\nbe given effect without the invalid provision, and the parties shall in good faith seek to replace such provision with another provision that is\nvalid and that to the maximum extent possible achieves the intent and purposes of the original provision.\n8\n4.7 Notices\nNotices under this Agreement shall be given in writing to the relevant Party at the address stated herein (or to such other address as it shall\nhave notified the other Party previously in writing).\nIf to the Company:\nXinyuan Real Estate Co., Ltd.\n18 Xinyuan Road, Zhengzhou, Henan 450011, PRC\nFax: 86 371 6565 1686\nAttention: Yong Zhang\nIf to the Employee:\n[Name\n[Address]\n4.8 Survival of Agreement\nThis Agreement shall survive the termination of the Employment Agreement and the Employee shall be liable for any damages suffered by the\nCompany as a result of a breach of this Agreement.\n[Signature page follows]\n9\nIN WITNESS WHEREOF, the undersigned have hereunto caused this Agreement to be executed as of the day and year first above written.\nXINYUAN REAL ESTATE CO., LTD.\nBy\nName: Yong Zhang\nTitle: Chairman and Chief Executive Officer\nDate:\n[Name of Employee]\nDate:\n10	EX-10.19 5 dex1019.htm FORM OF CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.19\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT (the “Agreement”), dated as of\n, 2007, between\n(“Employee”), and Xinyuan Real Estate Co., Ltd., a limited company duly registered under the laws of the Cayman Islands\n(the “Company”).\nWHEREAS, Employee is employed by the Company pursuant to the Employment Agreement between the parties hereto, dated as of the date hereof\n(the “Employment Agreement”); and\nWHEREAS, during the Term (as defined in the Employment Agreement) Employee may become privy to certain Confidential Information (as\ndefined below) of the Company, and Employee understands that the confidentiality of such Confidential Information is extremely important to the\nCompany.\nNOW, THEREFORE, in consideration of Employee’s employment by the Company and for other good and valuable consideration, the receipt of\nwhich is hereby acknowledged, the parties hereto agree as follows:\nARTICLE 1 CONFIDENTIALITY\n1.1 Definition\n“Confidential Information” shall mean all information not generally available to the public, whether written (including, without limitation,\nelectronic) or oral and in whatever form or medium such information is embodied or transmitted, relating to the Company or any of its\nAffiliates (as defined below), or their respective personnel, equity holders, partners, investors, clients, or service providers and the nature and\noperation of their respective businesses, including without limitation information relating to (i) documents and technical information,\n(ii) operations and techniques, (iii) systems, computer code, and technologies, (iv) trade secrets, developments and inventions, (v) products,\nservices and operations, (vi) strategies, business plans and programs, (vii) financial condition, financial activities, and investments, and\n(viii) customer lists and other customer information. “Confidential Information” includes all notes, analyses or other documents or material,\nwhether prepared by Employee or otherwise, which contain or otherwise reflect such information.\n“Affiliates” means any equity holders, subsidiaries, directors, officers or any entity that, directly or indirectly through one or more\nintermediaries, controls, is controlled by, or is under common control with the Company, and, as to an individual, an immediate family\nmember or Affiliate of such family member shall be deemed to be an Affiliate of such individual.\n1.2 Confidentiality Obligation\n(1) During the term of the Employment Agreement and at any time after the termination of the Employment Agreement, the Employee shall\nabide by the confidentiality rules formulated by the Company.\n(a) Without the Company’s prior written consent, the Employee shall not, directly or indirectly (i) use any Confidential Information\nfor any purpose other than performance of his/her duties as an Employee; (ii) disclose in any form whatsoever any Confidential\nInformation to any third parties; (iii) acquire Confidential Information by any improper methods or allow third parties to do the\nsame; (iv) use or allow third parties to use any Confidential Information so acquired. For the purpose of this Agreement, “acquire\nby any improper methods” includes stealing, fraud, threat, bribery, unauthorized reproduction, breach of confidentiality\nobligations, persuasion of others to breach any confidentiality obligation or similar methods of the same nature.\n(b) The Employee is obliged to use his/her best efforts to prevent any third party from stealing any Confidential Information.\n(2) If the Company suffers any loss resulting directly or indirectly from the Employee’s breach of Section 1.2(1) hereof, the Company shall\nhave the right to impose a discipline penalty on the Employee, and the Employee shall compensate the Company for the loss according\nto the relevant provisions of the Employment Agreement and assume any other legal liabilities under PRC laws.\n(3) The obligations under Section 1.2(1) shall not apply to the following information which:\n(a)\nthe Employee can prove has entered into the public domain;\n(b) has been disclosed other than by the Employee’s breach of the provisions of this Agreement;\n(c)\nthe Employee can prove was acquired from a third party who was not subject to any confidentiality restrictions; or\n(d) was disclosed by the Employee as required by any applicable law or court order, under which circumstance, the Confidential\nInformation shall be disclosed only to the extent as expressly specified by such applicable law or court order.\n(4) The Employee understands and agrees that as may be required for the Company’s business operations and the Employee’s performance\nof his/her duties, the Employee may from time to time have access to Confidential Information owned by the Company’s subsidiaries\nand affiliates. For the purposes of this Article 1, the Company shall be deemed to include any subsidiaries or affiliates of the Company\nthat may, from time to time, become affiliated with the Company.\n(5) The Employee understands and agrees that the Company may from time to time receive confidential information of or relating to third\nparties which would require the Company to maintain in confidence. The Employee agrees to maintain in confidence for the Company\nand such third parties and in no event disclose to any party other than the Company and such third parties such confidential information.\n2\n(6) Nothing in this Agreement shall be deemed to exclude, weaken or waive any rights related to the protection of trade secrets that the\nCompany may have under PRC laws (including but not limited to the PRC Anti-Unfair Competition Law).\n1.3 Obligation to Return\n(1) Employee acknowledges that all physical manifestations of Confidential Information, including without limitation all originals and\ncopies of disks, code, programs, notes, records and documents in whatever form (including, without limitation, electronic form)\ngenerated by Employee or coming into Employee’s possession during the Term are the sole property of the Company. Upon termination\nof the Employment Agreement, or upon request of the Company at any time, Employee shall immediately deliver all copies of such\nmaterials to the Company and shall not retain any copies of any such materials in any form. Upon request of the Company, Employee\nshall certify in writing as to Employee’s compliance with this paragraph.\n(2) If the Company suffers losses from the Employee’s failure to return any of the above documents (including copies) or items to the\nCompany, the Employee shall be liable and compensate the Company for the losses. The Company may deduct an amount in respect of\nsuch losses from the last salary payment payable to the Employee, and shall have the right to take any other proper measures to protect\nits own legitimate rights and interests.\n1.4 Compelled Disclosure\nIn the event that Employee is compelled, by deposition, interrogatory, subpoena or civil investigative demand or other governmental or\nregulatory requirement, to disclose any of the Confidential Information, Employee will provide the Company with prompt notice thereof so\nthat the Company may seek an appropriate protective order or other remedy and/or waive compliance with the provisions hereof and Employee\nshall provide reasonable cooperation as may be requested by the Company in connection therewith. If such protective order or other remedy is\nnot obtained promptly, Employee may furnish that portion (and only that portion) of the Confidential Information, which, in the written\nopinion of counsel, Employee is legally required to disclose and will exercise Employee’s best efforts to obtain reliable assurance that\nconfidential treatment will be accorded any Confidential Information so furnished.\nARTICLE 2 INTELLECTUAL PROPERTY\n2.1 Definition\n“Intellectual Property Rights” shall mean all patents, trademarks, service marks, trade names, copyrights, rights in software, domain names,\nknow-how, rights in Creative Works (as defined below), licenses and other intellectual property rights, being used to conduct the business of\nthe Company and its affiliates as now operated.\n“Creative Works” shall mean, all designs, ideas, discoveries, inventions, products, computer programs, source codes, procedures,\nimprovements, documents, information, materials, drawings, specifications, reports, electronic media or other instruments made, conceived or\ndeveloped by the Employee alone or with others.\n3\n“Moral Rights” shall mean any right to claim of authorship of a work, any right to object to any distortion or other modification of a work, and\nany similar right, existing under the law of any country in the world, or under any treaty.\n2.2 Ownership of Intellectual Property Rights and Transfer of Rights\n(1) During the term of the Employment Agreement and at the termination thereof, the Employee shall promptly disclose to the Company,\nwithout additional compensation, the following, to the extent that such disclosure could reasonably be expected to be of interest to the\nCompany:\n(a)\nany Creative Works related to the Company’s business activities or to the Employee’s work with the Company;\n(b) any pricing or marketing strategies;\n(c)\nany products and services;\n(d) any other ideas or information; and\n(e)\nany Intellectual Property Rights;\nwhich are conceived, adapted, discovered, developed or improved by the Employee while employed by the Company.\n(2) The Employee undertakes and warrants that he/she will not, during the term of the Employment Agreement or at any time after the\ntermination hereof, infringe, misappropriate, acquire or use (unless acquires or uses during the performance of his/her duties as an\nemployee of the Company) any of the Company’s Intellectual Property Rights.\n(3) The Employee acknowledges and agrees that any Creative Works created by the Employee for the purpose of the Company’s business or\nprimarily using the Company’s resources during the term of the Employment Agreement are occupational creations. The right to apply\nfor patents, copyrights trademarks or other protection shall be vested in the Company, and the Company shall be the patentee or holder of\nthe copyright, trademark or other protection after any such protections granted. The Employee agrees to assist the Company in executing\nand providing any and all documents and rendering any assistance that is reasonably necessary to obtain any patent, copyright, trademark\nor other protection for the Creative Works in the PRC or any other countries. Subject to applicable laws and treaties, the Employee\nagrees to irrevocably transfer and assign to the Company any and all Moral Rights that the Employee may have in such Creative Works.\n(4) The Parties agree that during the term of the Employment Agreement, according to the Company’s arrangement, the Employee will\naccept the Company’s request to create copyright works. Works which are created under the sponsorship of the Company, and which\nrepresent the will of the Company, and for which the responsibility for the work is assumed by the Company, shall be classified as legal\nperson works. The author thereof shall be the Company and the copyright shall vest in the Company. Meanwhile, the Employee agrees\nthat during the term of the Employment Agreement, the copyright\n4\nof other works completed by the Employee primarily by using the Company’s material and technical resources also vest in the Company\n(if the Employee is entitled to the right of acknowledgement according to PRC laws, the Employee may enjoy the right of\nacknowledgement, however, other rights of the copyright shall still vest in the Company).\n(5) The Employee agrees that any other Intellectual Property Rights developed by the Employee for the fulfilment of tasks assigned by the\nCompany or primarily by using the Company’s material and technical resources during the term of the Employment Agreement shall\nvest in the Company.\n(6) In deciding the salary and welfare benefits payable to the Employee, the Company has taken into account, and such salary and welfare\nbenefits include, rewards for the Employee’s contribution to the Intellectual Property Rights. The Employee hereby agrees that it shall\nnot be entitled to any additional rewards or compensation for the Intellectual Property Rights hereunder from the Company.\n(7) The Employee agrees that any Intellectual Property Rights developed by the Employee related to his original job at the Company or to\nthe task assigned by the Company within one year after the termination of his employment with the Company shall vest in the Company.\n(8) The Employee hereby irrevocably assigns, transfers and conveys to the Company any Intellectual Property Rights which the Employee\ncreates or is involved in creating while employed by the Company (whether or not created during the Company’s regular working hours\nor on the Company’s premises) which do not vest in the Company according to Sections 2.2(2) to (7) above. Further, the Employee\nagrees that he will use his best efforts to protect the benefits the Company may obtain globally as a result of the Intellectual Property\nRights. During the period of his employment with the Company and after he leaves the employment of the Company, the Employee\nshall, at the Company’s request in writing from time to time and provided that the Company bears all the reasonable expenses, execute\nall such further documents and do all such further acts or things as may be necessary inside or outside the PRC to vest all right, title and\ninterest in such Intellectual Property Rights referred to in this Section 2.2(8) in the Company (including assisting the Company in\nhandling all related applications, registration formalities or other legal formalities (including serving as a witness at court)).\n(9) The Employee understands that Intellectual Property Rights developed by the Employee prior to the commencement of the term of the\nEmployment Agreement shall not be subject to Section 2.2(7), and at the written request of the Company from time to time, the\nEmployee will provide the Company with the related information to show that the relevant Intellectual Property Rights have been\ndeveloped prior to the commencement of the term of the Employment Agreement.\n(10) The Employee agrees that if the Intellectual Property Rights generated during the Employee’s employment and reduced into written\nrecords, including words, drafts, blueprints, notes, notebooks, drawings, schematics, prototypes, magnetically encoded media, or any\nrelated materials, such written records, shall be deemed to be the Company’s property. The Employee undertakes that during the term of\nthe Employment Agreement and at any time thereafter, he will not disclose the contents of any of such written records to any persons\nunless authorized by the Company in writing.\n5\nARTICLE 3 NON-COMPETITION\n3.1 Definition\n“Competitive Position” shall mean serving in a senior management capacity, as an employee, consultant, advisor or otherwise, for any person\nthat engages in a business similar to the business of the Company or any of its Affiliates as conducted or as intended to be conducted on or\nprior to the end of the Term, including, without limitation, any real estate investment, ownership, acquisition, sale, renting, leasing,\ndevelopment and/or management in the PRC.\n3.2 Non-Competition by the Employee\n(1) The Employee hereby irrevocably represents and warrants that during the period of the Employee’s employment with the Company and\nwithin two (2) years after the Employee leaves his/her post, without regard for the reason, the Employee shall not, directly or indirectly,\nand whether or not for compensation, either on his or her own behalf or as an employee, officer, agent, consultant, director, owner,\npartner, shareholder, investor, or in any other capacity (except in the capacity of an employee of the Company acting for the benefit of\nthe Company):\n(a)\nserve in a Competitive Position;\n(b) assist in any way any person or entity whose activities are competitive with or otherwise adverse to the Company’s own business\nactivities; or\n(c)\nengage in activities contrary or harmful to the interest of the Company or any of its affiliates, including but not limited to\n(i) employing or recruiting any present, former or future employee of the Company or any of its affiliates to serve in a\nCompetitive Position; (ii) owning equity in any other company that is in a business similar to the business of the Company or any\nof its Affiliates as conducted or as intended to be conducted on or prior to the end of the Term, including, without limitation, any\nreal estate investment, ownership, acquisition, sale, renting, leasing, development and/or management in the PRC, provided that\nthe ownership of less than five per cent (5%) of the outstanding capital stock of any publicly-traded company, and the ownership\nby Employee of such other investments, if any, as previously approved by the Company in accordance with the Company’s\napplicable policies, shall not constitute a violation of this provision; (iii) disclosing or misusing any Confidential Information; or\n(iv) participating in a hostile takeover attempt of the Company or any of its affiliates.\n(2) The Company may, at any time either before or after the expiry or termination of the Employment Agreement, shorten, or waive, the\nperiod for its non-competition obligation under Section 3.2 (1) above by giving notice to the Employee thereof. If, at any time either\nbefore or after the expiry or termination of the Employment Agreement, the Company does not require the Employee to perform any\nnon-competition obligations hereunder, the period for the non-competition obligation may be shortened to zero, and the Company does\nnot need to pay any economic compensation to the Employee.\n6\n(3) In consideration of the Employee’s performance of the provisions under Section 3.2 (1) above, the Company shall, from the day\nthe Employee leaves the employment of the Company, pay to the Employee the economic compensation relating to the non-\ncompetition in compliance with applicable laws and regulations, for the enforcement of such restriction of non-competition herein\nagainst the Employee, provided that such restriction can be waived in writing by the Company in its sole discretion.\n(4) Upon receipt of each payment from the Company, the Employee shall provide the Company with a receipt recording the payment\ndate signed by the Employee.\n(5) If the Company breaches the provisions of this Agreement by failing to pay to the Employee the economic compensation in a full\nand timely manner as set out in Section 3.2(3) above (unless otherwise notified pursuant to Section 3.2(2)) for a period of 30 days\nafter receipt of the Employee’s written notice, the Employee shall be discharged from his/her obligations under Section 3.2(1)\nabove.\n3.3 Non-Solicitation\nThe Employee agrees that, while employed by the Company and for a period of two (2) years after the date of termination of the employment\nrelationship, without regard to the reason, if any, such employment shall terminate, the Employee will not, directly or indirectly, and whether\nor not for compensation, either on his or her own behalf or as an employee, officer, agent, consultant, director, owner, partner, shareholder,\ninvestor, or in any other capacity:\n(1) induce or attempt to induce any employee, consultant, sales agent, supplier, customer or independent contractor of the Company to end\nhis or her relationship with the Company; or\n(2) employ, retain as a consultant or contractor, or cause to be so employed or retained, any employee (or former employee within two years\nafter the date such former employee ceases to be employed by the Company), consultant, sales agent, or independent contractor of the\nCompany; or\n(3) accept or solicit investment capital, directly or indirectly, from any individual (other than the general public) or entity, or from an officer,\npartner, or principal of any entity, from which the Company has accepted investment capital, or with which, prior to the Employee’s\ntermination date, the Company has held discussions regarding the possibility of securing investment capital; or\n(4) enter into or attempt to enter into a business relationship with any individual or entity with which, prior to the Employee’s termination\ndate, the Company had a business relationship, or with which, prior to the Employee’s termination date, the Company had held\ndiscussions regarding the possibility of entering into such an relationship, if such relationship would be competitive with or otherwise\ndeleterious to the interests of the Company; or\n7\n(5) do or say anything which is harmful to the reputation of the Company, or which may lead any person to cease to deal with the Company\non substantially equivalent terms as before or at all.\nARTICLE 4 MISCELLANEOUS\n4.1 Scope of Restrictions\nThe Employee’s covenants and restrictions of confidentiality, intellectual property and non-competition as contained in Articles 1, 2 and 3\nhereof shall extend to and for the benefit of the Company and its affiliate companies and to the nature and extent of their respective businesses,\nthroughout the term of Employee’s employment with the Company. Where reference is made to the business of the Company, such term shall\ninclude any business of the Company and its affiliated companies.\n4.2 Governing Law\nThis Agreement, and all matters relating hereto, including any matter or dispute arising out of the Agreement, shall be interpreted, governed,\nand enforced according to the laws of the State of New York.\n4.3 Injunctive Relief\nEmployee acknowledges that the Company will be irreparably injured if Employee violates this Agreement, that monetary damages will not be\nsufficient to compensate the Company and that the Company will be entitled to a court order enjoining any such violation without the posting\nof any bond.\n4.4 Successors and Assigns\nThis Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns,\nprovided that Employee may not assign any part of this Agreement without the Company’s prior written consent.\n4.5 Entire Agreement; Amendment\nThis Agreement is the entire agreement of the parties with respect to the subject matter hereof and may not be modified, amended, terminated,\nor waived, in whole or in part, except by written agreement of the parties hereto.\n4.6 Severability\nIf for any reason any part of this Agreement shall be held invalid, its invalidity shall not affect any other provision of this Agreement that can\nbe given effect without the invalid provision, and the parties shall in good faith seek to replace such provision with another provision that is\nvalid and that to the maximum extent possible achieves the intent and purposes of the original provision.\n8\n4.7 Notices\nNotices under this Agreement shall be given in writing to the relevant Party at the address stated herein (or to such other address as it shall\nhave notified the other Party previously in writing).\nIf to the Company:\nXinyuan Real Estate Co., Ltd.\n18 Xinyuan Road, Zhengzhou, Henan 450011, PRC\nFax: 86 371 6565 1686\nAttention: Yong Zhang\nIf to the Employee:\n[Name]\n[Address]\n4.8 Survival of Agreement\nThis Agreement shall survive the termination of the Employment Agreement and the Employee shall be liable for any damages suffered by the\nCompany as a result of a breach of this Agreement.\n[Signature page follows]\n9\nIN WITNESS WHEREOF, the undersigned have hereunto caused this Agreement to be executed as of the day and year first above written.\nXINYUAN REAL ESTATE CO., LTD.\nBy\nName: Yong Zhang\nTitle: Chairman and Chief Executive Officer\nDate:\n[Name of Employee]\nDate:\n10
+116d39507d6bb61c0dec66872bd13e1c.pdf	effective_date jurisdiction party	COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT\nPARTIES:\nJohn J. Donahoe II (“Employee”)\nNIKE, Inc., and its parent, divisions, subsidiaries and affiliates (“NIKE” or the “Company”, and together with Employee, the\n“Parties”)\nDATE: October 17, 2019\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement (the “Agreement”) is executed upon Employee’s bona\nfide advancement with NIKE and is a condition of such advancement and is effective as of January 13, 2020. Employee\nacknowledges that he was informed in a written job offer at least two weeks before starting work in his new position that this\nCovenant Not to Compete and Non-Disclosure Agreement is required and is a condition of advancement.\nB. Over the course of Employee’s employment with NIKE, Employee will be or has been exposed to and is in a position to\ndevelop confidential information particular to NIKE’s business and not generally known to the public as defined below\n(“Protected Information”). It is anticipated that Employee will continue to be exposed to Protected Information of greater\nsensitivity, and this Agreement will remain in effect until Employee leaves the Company or it is superseded by a new written\nagreement executed by the Parties.\nC. The nature of NIKE’s business is highly competitive and disclosure of any Protected Information would result in severe\ndamage to NIKE and be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected Information of NIKE can be used to NIKE’s\ndetriment anywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the Parties agree as follows:\n1. Covenant Not to Compete.\n1.1 Competition Restriction. During Employee’s employment by NIKE, under the terms of any offer letter,\nemployment contract or otherwise, and for eighteen (18) months thereafter (the “Restriction Period”), Employee will not\ndirectly or indirectly own, manage, control, or participate in the ownership, management or control of, or be employed by,\nconsult for, or be connected in any manner with, any business engaged anywhere in the world in the athletic footwear, athletic\napparel or sports equipment, sports electronics/technology and sports accessories business, or any other business that directly\ncompetes with NIKE or any of its parent, subsidiary or affiliated corporations (“Competitor”). This provision is subject to\nNIKE’s option to waive all or any portion of the Restriction Period as more specifically provided below.\n1.2 Extension of Time. In the event that Employee breaches this covenant not to compete, the Restriction Period shall\nautomatically toll from the date of the first breach, and all subsequent breaches, until the resolution of the breach through\nprivate settlement, judicial or other action, including all appeals. The Restriction Period shall continue upon the effective date\nof any such settlement, judicial or other resolution. NIKE shall not be obligated to pay Employee the additional compensation\ndescribed in paragraph 1.5 below for any period of time in which this Agreement is tolled due to Employee's breach. In the\nevent Employee receives such additional compensation for any such breach, Employee shall immediately reimburse NIKE in\nthe amount of all such compensation upon the receipt of a written request by NIKE.\n1.3 Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the\nRestriction Period or to limit the definition of Competitor by giving Employee seven (7) days’ prior written notice of such\nelection; provided, however, unless Employee is terminated for Cause (as defined below), any waiver of the Restriction Period\nmust be with the consent of Employee. In the event all or a portion of the Restriction Period is waived or the definition of\nCompetitor is limited, NIKE shall not be obligated to pay Employee for any period of time as to which the covenant not to\ncompete has been waived.\n1.4 Definition of “Cause”. For purposes of this Agreement, the Company will have “Cause” to terminate Employee’s\nemployment upon Employee’s:\n(a)conviction or plea of guilty or no contest to (i) any felony or (ii) a misdemeanor charge involving fraud, false\nstatements or misleading omissions, wrongful taking, embezzlement, bribery, forgery, counterfeiting or\nextortion;\n(b)willful conduct that is or may reasonably be expected to cause material financial or reputational harm to the\nCompany (regardless of whether such conduct occurred during or prior to Employee’s employment with the\nCompany);\n(c)continued failure to substantially perform Employee’s duties that Employee fails to remedy to the reasonable\nsatisfaction of the Company within thirty (30) days after written notice is delivered by the Company to\nEmployee that sets forth in reasonable detail the basis of Employee’s failure to substantially perform\nEmployee’s duties;\n(d)violation of the Company’s material policies (including, but not limited to, the Company’s policies pertaining to\nnon-discrimination, anti-harassment and insider trading);\n(e)(i) obstruction, (ii) attempts to influence, obstruct or impede or (iii) failure to materially cooperate with an\ninvestigation authorized by the Board of Directors of the Company (the “Board”), a self-regulatory organization\nempowered with self-regulatory responsibilities under federal or state laws or a governmental department or\nagency (an “Investigation”); or\n(f)willful withholding, removal, concealment, destruction, alteration or falsification of any material which is\nrequested in connection with an Investigation, or attempt to do so or solicitation of another to do so.\n1.5 Additional Consideration.\n(a)As additional consideration for the covenant not to compete described above, should NIKE terminate\nEmployee’s employment without Cause and elect to enforce the non-competition agreement, NIKE shall\n(subject to subparagraph (b) below) pay Employee a monthly payment equal to one-twelfth (1/12) of\nEmployee’s then current Annual NIKE Income (defined herein to mean base salary and annual Performance\nSharing Plan bonus calculated at 100% of\n-2-\nEmployee’s last targeted rate) while the Restriction Period is in effect. Except where prohibited by law, if\nNIKE terminates Employee for Cause, no additional consideration will be owed to Employee under this\nAgreement, and the covenant not to compete will remain enforceable. Nothing in this paragraph or Agreement\nalters the employment-at-will relationship between NIKE and Employee.\nIf Employee voluntarily terminates employment and NIKE elects to enforce the non-competition agreement,\nNIKE shall (subject to subparagraph (b) below) pay Employee a monthly payment equal to one-twenty-fourth\n(1/24) of Employee’s then-current Annual NIKE Income while the Restriction Period is in effect.\nSubject to subparagraph (b) below, payments during the Restriction Period shall be payable monthly on the\nlast business day of the month in accordance with NIKE’s payroll practices.\n(b)Section 409A of the Internal Revenue Code requires that the monthly payments to Employee set forth in\nsubparagraph (a) above may not commence until six months after Employee’s “separation from service” as\ndefined in Treasury Regulations § 1.409A-1(h). Failure to follow this requirement will result in substantial tax\npenalties to Employee. Accordingly, the commencement of these payments will be delayed until after the\nsix-month period following Employee’s separation from service in order to comply with Section 409A and avoid\ntax penalties for Employee. All payments that Employee would otherwise have received before the date that is\nsix months after Employee’s separation from service will be accumulated by NIKE and paid to Employee in a\nlump sum promptly following the end of the six-month period, together with interest at a fluctuating rate per\nannum equal to the prime rate as published from time to time in The Wall Street Journal on these delayed\npayments from the date otherwise payable under subparagraph (a) until the date actually paid.\n1.6 Withholding and Offset. NIKE reserves the right to withhold from additional consideration payable to Employee\nall federal, state and local taxes as shall be required, as well as any other amounts authorized or required by NIKE policy.\nNIKE reserves the right, exercisable in its sole discretion, to reduce the amount of additional consideration by amounts that\nEmployee owes NIKE, including but not limited to any payments due to NIKE in accordance with the NIKE Tax Equalization\nPolicy if Employee is employed as a transferee during his employment with NIKE. Employee agrees that notwithstanding the\namount of any withholding and/or offset, even in an amount that reduces payments of additional consideration to zero dollars\n($0.00), the covenant not to compete will remain enforceable. To the extent withholding or offset does not extinguish amounts\nthat Employee owes to NIKE, Employee remains obligated for the balance of the amounts owed.\n2. Subsequent Employer. Employee agrees to notify NIKE at the time of separation of employment of the name of\nEmployee’s new employer, if known. Employee further agrees to disclose to NIKE the name of any subsequent employer\nduring the Restriction Period, wherever located and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure Agreement.\n3.1 Protectable Information Defined. “Protected Information” shall mean all proprietary information, in whatever form\nand format, of NIKE and all information provided to NIKE by third parties that NIKE is obligated to keep confidential.\nEmployee agrees that any and all information to which Employee has access concerning NIKE projects and internal NIKE\ninformation is Protected Information, whether in verbal form, machine-readable form, written or other tangible form, and\nwhether designated as confidential or unmarked. Without limiting the foregoing, Protected Information includes trade secrets\nand competitively sensitive\n-3-\nbusiness or professional information (regardless of whether such information constitutes a trade secret) relating to NIKE’s\nresearch and development activities, its intellectual property and the filing or pendency of patent applications, trade secrets,\nconfidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor lists, contract factory lists,\npricing information, manufacturing plans, business and marketing plans or strategy, product development plans, product launch\nplans, financial information, sales information, methods of operation, manufacturing processes and methods, products, and\npersonnel information.\n3.2 Excluded Information. Notwithstanding paragraph 3.1, Protected Information excludes any information that is or\nbecomes part of the public domain through no act or failure to act on the part of the Employee. Specifically, Employee shall be\npermitted to retain as part of his personal portfolio copies of Employee’s original artwork and designs, provided the artwork or\ndesigns have become part of the public domain. In any dispute between the Parties with respect to this exclusion, the burden of\nproof shall be on Employee and such proof will be by clear and convincing evidence.\n3.3 Employee’s Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter,\nEmployee shall hold in confidence and protect all Protected Information and shall not, at any time, directly or indirectly, use\nany Protected Information for any purpose outside the scope of Employee’s employment with NIKE or disclose any Protected\nInformation to any third person or organization without the prior written consent of NIKE. Specifically, but not by way of\nlimitation, Employee shall not ever copy, transmit, reproduce, summarize, quote, publish or make any commercial or other use\nwhatsoever of any Protected Information without the prior written consent of NIKE. Employee shall also take reasonable\nsecurity precautions and such other actions as may be necessary to ensure that there is no use or disclosure, intentional or\ninadvertent, of Protected Information in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at any time, and in any event, upon termination of employment,\nEmployee shall immediately return to NIKE all Protected Information in whatever form, including tapes, notebooks, drawings,\ndigital files or other media containing Protected Information, and all copies thereof, then in Employee’s possession or under\nEmployee’s control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, Employee shall notify NIKE immediately\nif Employee becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person\nemployed or not employed by NIKE at the time of such possession, use or knowledge. Employee shall cooperate with NIKE in\nthe investigation of any such incident and will cooperate with NIKE in any litigation with third parties deemed necessary by\nNIKE to protect the Protected Information. NIKE shall provide reasonable reimbursement to Employee for each hour so\nengaged and that amount shall not be diminished by operation of any payment under paragraph 1.5 of this Agreement.\n6. Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, Employee shall not\ndirectly or indirectly solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other\ncompany or business organization, any NIKE employee, whether or not such employee is a full-time employee or temporary\nemployee and whether or not such employment is pursuant to a written agreement or is at will or any independent contractor\nworking for NIKE.\n7. Accounting of Profits. Employee agrees that, if Employee should violate any term of this Agreement, NIKE shall be\nentitled to an accounting and repayment of all profits, compensation, commissions, remuneration or benefits that Employee\ndirectly or indirectly has realized and/or may realize as a result of or in connection with any such violation (including return of\nany additional consideration paid by NIKE pursuant to paragraph 1.5 above). Such remedy shall be in addition to and not in\nlimitation of any injunctive relief or other rights or remedies to which NIKE may be entitled at law or in equity.\n-4-\n8. General Provisions.\n8.1 Survival. This Agreement shall continue in effect after the termination of Employee’s employment, regardless of\nthe reason for termination.\n8.2 Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement shall be\neffective unless executed in writing by both Parties. No written waiver shall excuse the performance of any act other than the\nact or acts specifically referred to therein.\n8.3 Severability. Each provision herein shall be treated as a separate and independent clause and unenforceability of\nany one clause shall in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be\nfound to be unreasonable or invalid by a court of competent jurisdiction, such provision shall be enforceable to the maximum\nextent enforceable by the law of that jurisdiction.\n8.4 Applicable Law and Jurisdiction. This Agreement, and Employee’s employment hereunder, shall be construed\naccording to the laws of the State of Oregon. Employee further hereby submits to the jurisdiction of, and agrees that exclusive\njurisdiction over and venue for any action or proceeding arising out of or relating to this Agreement shall lie in the state and\nfederal courts located in Oregon.\n***\n-5-\nEmployee\nBy: _______________________________\nName: John J. Donahoe II\nNIKE, Inc.\nBy: _______________________________\nName: Monique Matheson\nTitle: EVP, Global Human Resources\n[Signature page to Covenant Not to Compete]	COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT\nPARTIES:\nJohn]. Donahoe II (”Employee")\nNIKE, Inc., and its parent, divisions, subsidiaries and affiliates (”NIKE" or the ”Company", and together with Employee, the\n"Parties")\nDATE: October17, 2019\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement (the ”Agreement") is executed upon Employee’s bona\nfide advancement with NIKE and is a condition of such advancement and is effective as of January 13, 2020. Employee\nacknowledges that he was informed in a written job offer at least two weeks before starting work in his new position that this\nCovenant Not to Compete and Non-Disclosure Agreement is required and is a condition of advancement.\nB. Over the course of Employee’s employment with NIKE, Employee will be or has been exposed to and is in a position to\ndevelop confidential information particular to NIKE’s business and not generally known to the public as defined below\n(”Protected Information”). It is anticipated that Employee will continue to be exposed to Protected Information of greater\nsensitivity, and this Agreement will remain in effect until Employee leaves the Company or it is superseded by a new written\nagreement executed by the Parties.\nC. The nature of NIKE’s business is highly competitive and disclosure of any Protected Information would result in severe\ndamage to NIKE and be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected Information of NIKE can be used to NIKE’s\ndetriment anywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the Parties agree as follows:\n1. Covenant Not to Compete.\n1.1 Competition Restriction. During Employee’s employment by NIKE, under the terms of any offer letter,\nemployment contract or otherwise, and for eighteen (18) months thereafter (the ”Restriction Period”), Employee will not\ndirectly or indirectly own, manage, control, or participate in the ownership, management or control of, or be employed by,\nconsult for, or be connected in any manner with, any business engaged anywhere in the world in the athletic footwear, athletic\nappaIel or sports equipment, sports electronics/technology and sports accessories business, or any other business that directly\ncompetes with NIKE or any of its parent, subsidiary or affiliated corporations ("Competito ’). This provision is subject to\nNIKE’s option to waive all or any portion of the Restriction Period as more specifically provided below.\n1.2 Extension of Time. In the event that Employee breaches this covenant not to compete, the Restriction Period shall\nautomatically toll from the date of the first breach, and all subsequent breaches, until the resolution of the breach through\nprivate settlement, judicial or other action, including all appeals. The Restriction Period shall continue upon the effective date\nof any such settlement, judicial or other resolution. NIKE shall not be obligated to pay Employee the additional compensation\ndescribed in paragraph 1.5 below for any period of time in which this Agreement is tolled due to Employee's breach. In the\nevent Employee receives such additional compensation for any such breach, Employee shall immediately reimburse NIKE in\nthe amount of all such compensation upon the receipt of a written request by NIKE.\n1.3 Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the\nRestriction Period or to limit the definition of Competitor by giving Employee seven (7) days’ prior written notice of such\nelection; provided, however, unless Employee is terminated for Cause (as defined below), any waiver of the Restriction Period\nmust be with the consent of Employee. In the event all or a portion of the Restriction Period is waived or the definition of\nCompetitor is limited, NIKE shall not be obligated to pay Employee for any period of time as to which the covenant not to\ncompete has been waived.\n \n1.4 Definition of ”Cause". For purposes of this Agreement, the Company will have ”Cause" to terminate Employee’s\nemployment upon Employee’ s:\n(abonviction or plea of guilty or no contest to (i) any felony or (ii) a misdemeanor charge involving fraud, false\nstatements or misleading omissions, wrongful taking, embezzlement, bribery, forgery, counterfeiting or\nextortion;\n(b)/villful conduct that is or may reasonably be expected to cause material financial or reputational harm to the\nCompany (regardless of whether such conduct occurred during or prior to Employee’s employment with the\nCompany);\n(cbontinued failure to substantially perform Employee’s duties that Employee fails to remedy to the reasonable\nsatisfaction of the Company within thirty (30) days after written notice is delivered by the Company to\nEmployee that sets forth in reasonable detail the basis of Employee’s failure to substantially perform\nEmployee’s duties;\n(d)/iolation of the Company’s material policies (including, but not limited to, the Company’s policies pertaining to\nnon-discrimination, anti-harassment and insider trading);\n(eIi) obstruction, (ii) attempts to influence, obstruct or impede or (iii) failure to materially cooperate with an\ninvestigation authorized by the Board of Directors of the Company (the "Board"), a self-regulatory organization\nempowered with self-regulatory responsibilities under federal or state laws or a governmental department or\nagency (an ” nvestigation”); or\n(f)willful withholding, removal, concealment, destruction, alteration or falsification of any material which is\nrequested in connection with an Investigation, or attempt to do so or solicitation of another to do so.\n1.5 A dditional Consideration.\n(a)L\s additional consideration for the covenant not to compete described above, should NIKE terminate\nEmployee’s employment without Cause and elect to enforce the non-competition agreement, NIKE shall\n(subject to subparagraph (b) below) pay Employee a monthly payment equal to one-twelfth (1/12) of\nEmployee’s then current Annual NIKE Income (defined herein to mean base salary and annual Performance\nSharing Plan bonus calculated at 100% of\nEmployee’s last targeted rate) while the Restriction Period is in effect. Except where prohibited by law, if\nNIKE terminates Employee for Cause, no additional consideration will be owed to Employee under this\nAgreement, and the covenant not to compete will remain enforceable. Nothing in this paragraph or A greement\nalters the employment-at-will relationship between NIKE and Employee.\nIf Employee voluntarily terminates employment and NIKE elects to enforce the non-competition agreement,\nNIKE shall (subject to subparagraph (b) below) pay Employee a monthly payment equal to one-twenty-fourth\n(1/24) of Employee’s then-current Annual NIKE Income while the Restriction Period is in effect.\nSubject to subparagraph (b) below, payments during the Restriction Period shall be payable monthly on the\nlast business day of the month in accordance with NIKE’s payroll practices.\n(bBection 409A of the Internal Revenue Code requires that the monthly payments to Employee set forth in\nsubparagraph (a) above may not commence until six months after Employee’s ”separation from service” as\ndefined in Treasury Regulations § 1.409A-1(h). Failure to follow this requirement will result in substantial tax\npenalties to Employee. A ccordingly, the commencement of these payments will be delayed until after the\nsix-month period following Employee’s separation from service in order to comply with Section 409A and avoid\ntax penalties for Employee. All payments that Employee would otherwise have received before the date that is\nsix months after Employee’s separation from service will be accumulated by NIKE and paid to Employee in a\nlump sum promptly following the end of the six-month period, together with interest at a fluctuating rate per\nannum equal to the prime rate as published from time to time in The Wall Street] ournal on these delayed\npayments from the date otherwise payable under subparagraph (a) until the date actually paid.\n1.6 Withholding and Offset. NIKE reserves the right to withhold from additional consideration payable to Employee\nall federal, state and local taxes as shall be required, as well as any other amounts authorized or required by NIKE policy.\nNIKE reserves the right, exercisable in its sole discretion, to reduce the amount of additional consideration by amounts that\nEmployee owes NIKE, including but not limited to any payments due to NIKE in accordance with the NIKE Tax Equalization\nPolicy if Employee is employed as a transferee during his employment with NIKE. Employee agrees that notwithstanding the\namount of any withholding and/0r offset, even in an amount that reduces payments of additional consideration to zero dollars\n($0.00), the covenant not to compete will remain enforceable. To the extent withholding or offset does not extinguish amounts\nthat Employee owes to NIKE, Employee remains obligated for the balance of the amounts owed.\n2. Subsequent Employer. Employee agrees to notify NIKE at the time of separation of employment of the name of\nEmployee’ s new employer, if known. Employee further agrees to disclose to NIKE the name of any subsequent employer\nduring the Restriction Period, wherever located and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure A greement.\n3.1 Protectable Information Defined. "Protected Information” shall mean all proprietary information, in whatever form\nand format, of NIKE and all information provided to NIKE by third parties that NIKE is obligated to keep confidential.\nEmployee agrees that any and all information to which Employee has access concerning NIKE projects and internal NIKE\ninformation is Protected Information, whether in verbal form, machine-readable form, written or other tangible form, and\nwhether designated as confidential or unmarked. Without limiting the foregoing, Protected Information includes trade secrets\nand competitively sensitive\nbusiness or professional information (regardless of whether such information constitutes a trade secret) relating to NIKE’s\nresearch and development activities, its intellectual property and the filing or pendency of patent applications, trade secrets,\nconfidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor lists, contract factory lists,\npricing information, manufacturing plans, business and marketing plans or strategy, product development plans, product launch\nplans, financial information, sales information, methods of operation, manufacturing processes and methods, products, and\npersonnel information.\n3.2 Excluded Information. Notwithstanding paragraph 3.1, Protected Information excludes any information that is or\nbecomes part of the public domain through no act or failure to act on the part of the Employee. Specifically, Employee shall be\npermitted to retain as part of his personal portfolio copies of Employee’s original artwork and designs, provided the artwork or\ndesigns have become part of the public domain. In any dispute between the Parties with respect to this exclusion, the burden of\nproof shall be on Employee and such proof will be by clear and convincing evidence.\n3.3 Employee’s Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter,\nEmployee shall hold in confidence and protect all Protected Information and shall not, at any time, directly or indirectly, use\nany Protected Information for any purpose outside the scope of Employee’s employment with NIKE or disclose any Protected\nInformation to any third person or organization without the prior written consent of NIKE. Specifically, but not by way of\nlimitation, Employee shall not ever copy, transmit, reproduce, summarize, quote, publish or make any commercial or other use\nwhatsoever of any Protected Information without the prior written consent of NIKE. Employee shall also take reasonable\nsecurity precautions and such other actions as may be necessary to ensure that there is no use or disclosure, intentional or\ninadvertent, of Protected Information in violation of this A greement.\n4. Return of Protected Information. At the request of NIKE at any time, and in any event, upon termination of employment,\nEmployee shall immediately return to NIKE all Protected Information in whatever form, including tapes, notebooks, drawings,\ndigital files or other media containing Protected Information, and all copies thereof, then in Employee’s possession or under\nEmployee’s control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, Employee shall notify NIKE immediately\nif Employee becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person\nemployed or not employed by NIKE at the time of such possession, use or knowledge. Employee shall cooperate with NIKE in\nthe investigation of any such incident and will cooperate with NIKE in any litigation with third parties deemed necessary by\nNIKE to protect the Protected Information. NIKE shall provide reasonable reimbursement to Employee for each hour so\nengaged and that amount shall not be diminished by operation of any payment under paragraph 1.5 of this A greement.\n6. Non-Recruitment. During the term of this A greement and for a period of one (1) year thereafter, Employee shall not\ndirectly or indirectly solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other\ncompany or business organization, any NIKE employee, whether or not such employee is a full-time employee or temporary\nemployee and whether or not such employment is pursuant to a written agreement or is at will or any independent contractor\nworking for NIKE.\n7. Accounting of Profits. Employee agrees that, if Employee should violate any term of this Agreement, NIKE shall be\nentitled to an accounting and repayment of all profits, compensation, commissions, remuneration or benefits that Employee\ndirectly or indirectly has realized and/or may realize as a result of or in connection with any such violation (including return of\nany additional consideration paid by NIKE pursuant to paragraph 1.5 above). Such remedy shall be in addition to and not in\nlimitation of any injunctive relief or other rights or remedies to which NIKE may be entitled at law or in equity.\n8. G eneral Provisions.\n8.1 Survival. This A greement shall continue in effect after the termination of Employee’ s employment, regardless of\nthe reason for termination.\n8.2 Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement shall be\neffective unless executed in writing by both Parties. No written waiver shall excuse the performance of any act other than the\nact or acts specifically referred to therein.\n8.3 Severability. Each provision herein shall be treated as a separate and independent clause and unenforceability of\nany one clause shall in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be\nfound to be unreasonable or invalid by a court of competent jurisdiction, such provision shall be enforceable to the maximum\nextent enforceable by the law of that jurisdiction.\n8.4 Applicable Law and urisdiction. This Agreement, and Employee’s employment hereunder, shall be construed\naccording to the laws of the State of Oregon. Employee further hereby submits to the jurisdiction of, and agrees that exclusive\njurisdiction over and venue for any action or proceeding arising out of or relating to this A greement shall lie in the state and\nfederal courts located in Oregon.\nEmployee\nBy:\n \nName: John]. Donahoe II\nNIKE, Inc.\nBy:\n \nName: Monique Matheson\nTitle: EV P, Global Human Resources\n[Signature page to Covenant Not to Compete]	COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT\nPARTIES:\nJohn J. Donahoe II ("Employee")\nNIKE, Inc., and its parent, divisions, subsidiaries and affiliates ("NIKE" or the "Company", and together with Employee, the\n"Parties")\nDATE: October 17, 2019\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure A greement (the "Agreement") is executed upon Employee's bona\nfide advancement with NIKE and is a condition of such advancement and is effective as of January 13, 2020. Employee\nacknowledges that he was informed in a written job offer at least two weeks before starting work in his new position that this\nCovenant Not to Compete and Non-Disclosure A greement is required and is a condition of advancement.\nB. Over the course of Employee's employment with NIKE, Employee will be or has been exposed to and is in a position to\ndevelop confidential information particular to NIKE's business and not generally known to the public as defined below\n("Protected Information"). It is anticipated that Employee will continue to be exposed to Protected Information of greater\nsensitivity, and this A greement will remain in effect until Employee leaves the Company or it is superseded by a new written\nagreement executed by the Parties\nC. The nature of NIKE's business is highly competitive and disclosure of any Protected Information would result in severe\ndamage to NIKE and be difficult to measure.\nD.\nNIKE makes use of its Protected Information throughout the world. Protected Information of NIKE can be used to NIKE's\ndetriment anywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the Parties agree as follows:\n1. Covenant Not to Compete.\n1.1 Competition Restriction. During Employee's employment by NIKE, under the terms of any offer letter,\nemployment contract or otherwise, and for eighteen (18) months thereafter (the "Restriction Period"), Employee will not\ndirectly or indirectly own, manage, control, or participate in the ownership, management or control of, or be employed by,\nconsult for, or be connected in any manner with, any business engaged anywhere in the world in the athletic footwear, athletic\napparel or sports equipment, sports electronics/technology and sports accessories business, or any other business that directly\ncompetes with NIKE or any of its parent subsidiary or affiliated corporations ("Competitor"). This provision is subject to\nNIKE's option to waive all or any portion of the Restriction Period as more specifically provided below.\n1.2 Extension of Time. In the event that Employee breaches this covenant not to compete, the Restriction Period shall\nautomatically toll from the date of the first breach, and all subsequent breaches, until the resolution of the breach through\nprivate settlement, judicial or other action, including all appeals. The Restriction Period shall continue upon the effective date\nof\nany\nsuch settlement, judicial or other resolution. NIKE shall not be obligated to pay Employee the additional compensation\ndescribed in paragraph 1.5 below for any period of time in which this A greement is tolled due to Employee's breach In the\nevent Employee receives such additional compensation for any such breach, Employee shall immediately reimburse NIKE in\nthe amount of all such compensation upon the receipt of a written request by NIKE.\n1.3 Naiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the\nRestriction Period or to limit the definition of Competitor by giving Employee seven (7) days' prior written notice of such\nelection provided, however, unless Employee is terminated for Cause (as defined below), any waiver of the Restriction Period\nmust be with the consent of Employee. In the event all or a portion of the Restriction Period is waived or the definition of\nCompetitor is limited, NIKE shall not be obligated to pay Employee for any period of time as to which the covenant not to\ncompete has been waived.\n1.4 Definition of "Cause" For purposes of this A greement, the Company will have "Cause" to terminate Employee's\nemployment upon Employee's\n(abonviction or plea of guilty or no contest to (i) any felony or (ii) a misdemeanor charge involving fraud, false\nstatements or misleading omissions, wrongful taking, embezzlement, bribery, forgery, counterfeiting or\nextortion;\n(bwillful conduct that is or may reasonably be expected to cause material financial or reputational harm to the\nCompany (regardless of whether such conduct occurred during or prior to Employee's employment with the\nCompany);\n(ccontinued failure to substantially perform Employee's duties that Employee fails to remedy to the reasonable\nsatisfaction of the Company within thirty (30) days after written notice is delivered by the Company to\nEmployee that sets forth in reasonable detail the basis of Employee's failure to substantially perform\nEmployee's duties;\n(dviolation of the Company's material policies (including, but not limited to, the Company's policies pertaining to\nnon-discrimination, anti-harassment and insider trading);\n(e)i) obstruction, (ii) attempts to influence, obstruct or impede or (iii) failure to materially cooperate with an\ninvestigation authorized by the Board of Directors of the Company (the "Board") a self-regulatory organization\nempowered with self-regulatory responsibilities under federal or state laws or a governmental department or\nagency (an "Investigation"); or\nf)willful withholding, removal, concealment, destruction, alteration or falsification of any material which is\nrequested in connection with an Investigation, or attempt to do so or solicitation of another to do so.\n1.5 A dditional Consideration.\n(a) S additional consideration for the covenant not to compete described above, should NIKE terminate\nEmployee's employment without Cause and elect to enforce the non-competition agreement, NIKE shall\n(subject to subparagraph (b) below) pay Employee a monthly payment equal to one-twelfth (1/12) of\nEmployee's then current A nnual NIKE Income (defined herein to mean base salary and annual Performance\nSharing Plan bonus calculated at 100% of\n-2-\nEmployee's last targeted rate) while the Restriction Period is in effect. Except where prohibited by law, if\nNIKE terminates Employee for Cause, no additional consideration will be owed to Employee under this\nA greement, and the covenant not to compete wil remain enforceable. Nothing in this paragraph or A greement\nalters the employment-at-wi relationship between NIKE and Employee.\nIf Employee voluntarily terminates employment and NIKE elects to enforce the non-competition agreement,\nNIKE shall (subject to subparagraph (b) below) pay Employee a monthly payment equal to one-twenty-fourth\n(1/24) of Employee's then-current Annual NIKE Income while the Restriction Period is in effect.\nSubject to subparagraph (b) below, payments during the Restriction Period shall be payable monthly on the\nlast business day of the month in accordance with NIKE's payroll practices.\nbSection 409A of the Internal Revenue Code requires that the monthly payments to Employee set forth in\nsubparagraph (a) above may not commence until six months after Employee's "separation from service" as\ndefined in Treasury Regulations S 1.409A-1(h) Failure to follow this requirement will result in substantial tax\npenalties to Employee. A ccordingly, the commencement of these payments will be delayed until after the\nsix-month period following Employee's separation from service in order to comply with Section 409A and avoid\ntax penalties for Employee. All payments that Employee would otherwise have received before the date that is\nsix months after Employee's separation from service will be accumulated by NIKE and paid to Employee in a\nlump sum promptly following the end of the six-month period, together with interest at a fluctuating rate per\nannum equal to the prime rate as published from time to time in The Wall Street ournal on these delayed\npayments from the date otherwise payable under subparagraph (a) until the date actually paid.\n1.6 Withholding and Offset NIKE reserves the right to withhold from additional consideration payable to Employee\nall federal, state and local taxes as shall be required, as well as any other amounts authorized or required by NIKE policy.\nNIKE reserves the right, exercisable in its sole discretion, to reduce the amount of additional consideration by amounts that\nEmployee owes NIKE including but not limited to any payments due to NIKE in accordance with the NIKE Tax Equalization\nPolicy if Employee is employed as a transferee during his employment with NIKE. Employee agrees that notwithstanding the\namount of any withholding and/or offset, even in an amount that reduces payments of additional consideration to zero dollars\n($0.00), the covenant not to compete will remain enforceable. To the extent withholding or offset does not extinguish amounts\nthat Employee owes to NIKE, Employee remains obligated for the balance of the amounts owed.\n2. Subsequent Employer. Employee agrees to notify NIKE at the time of separation of employment of the name of\nEmployee's new employer, if known. Employee further agrees to disclose to NIKE the name of any subsequent employer\nduring the Restriction Period, wherever located and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure A greement.\n3.1 Protectable Information Defined. "Protected Information" shall mean all proprietary information, in whatever form\nand format, of NIKE and all information provided to NIKE by third parties that NIKE is obligated to keep confidential.\nEmployee agrees that any and all information to which Employee has access concerning NIKE projects and internal NIKE\ninformation is Protected Information, whether in verbal form, machine-readable form, written or other tangible form, and\nwhether designated as confidential or unmarked. Vithout limiting the foregoing, Protected Information includes trade secrets\nand competitively sensitive\n-3-\nbusiness or professional information (regardless of whether such information constitutes a trade secret) relating to NIKE's\nresearch and development activities, its intellectual property and the filing or pendency of patent applications, trade secrets,\nconfidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor lists, contract factory lists,\npricing information, manufacturing plans, business and marketing plans or strategy, product development plans, product launch\nplans, financial information, sales information, methods of operation, manufacturing processes and methods, products, and\npersonnel information.\n3.2 Excluded Information Notwithstanding paragraph 3.1, Protected Information excludes any information that is or\nbecomes part of the public domain through no act or failure to act on the part of the Employee. Specifically, Employee shall be\npermitted to retain as part of his personal portfolio copies of Employee's original artwork and designs, provided the artwork or\ndesigns have become part of the public domain. In any dispute between the Parties with respect to this exclusion the burden of\nproof shall be on Employee and such proof will be by clear and convincing evidence.\n3.3 Employee's Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter,\nEmployee shall hold in confidence and protect all Protected Information and shall not at any time, directly or indirectly, use\nany Protected Information for any purpose outside the scope of Employee's employment with NIKE or disclose any Protected\nInformation to any third person or organization without the prior written consent of NIKE Specifically but not by way of\nlimitation, Employee shall not ever copy, transmit, reproduce summarize, quote, publish or make any commercial or other use\nwhatsoever of any Protected Information without the prior written consent of NIKE. Employee shall also take reasonable\nsecurity precautions and such other actions as may be necessary to ensure that there is no use or disclosure, intentional or\ninadvertent of Protected Information in violation of this A greement.\n4.\nReturn of Protected Information. At the request of NIKE at any time, and in any event, upon termination of employment\nEmployee shall immediately return to NIKE all Protected Information in whatever form, including tapes, notebooks, drawings,\ndigital files or other media containing Protected Information, and all copies thereof, then in Employee's possession or under\nEmployee's control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, Employee shall notify NIKE immediately\nif\nEmployee becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person\nemployed or not employed by NIKE at the time of such possession, use or knowledge. Employee shall cooperate with NIKE in\nthe investigation of any such incident and will cooperate with NIKE in any litigation with third parties deemed necessary by\nNIKE\nto\nprotect\nthe\nProtected\nInformation.\nNIKE\nshall\nprovide\nreasonable\nreimbursement\nto\nEmployee\nfor\neach\nhour\nso\nengaged and that amount shall not be diminished by operation of any payment under paragraph 1.5 of this A greement.\n6. Non-Recruitment. During the term of this A greement and for a period of one (1) year thereafter, Employee shall not\ndirectly\nor\nindirectly\nsolicit,\ndivert\nor\nhire\naway\n(or\nattempt\nto\nsolicit,\ndivert\nor\nhire\naway)\nto\nor\nfor\nhimself\nor\nany\nother\ncompany or business organization, any NIKE employee, whether or not such employee is a full-time employee or temporary\nemployee and whether or not such employment is pursuant to a written agreement or is at will or any independent contractor\nworking for NIKE.\n7. ccounting of Profits. Employee agrees that, if Employee should violate any term of this A greement, NIKE shall be\nentitled to an accounting and repayment of all profits, compensation, commissions, remuneration or benefits that Employee\ndirectly or indirectly has realized and/or may realize as a result of or in connection with any such violation (including return of\nany additional consideration paid by NIKE pursuant to paragraph 1.5 above) Such remedy shall be in addition to and not in\nlimitation of any injunctive relief or other rights or remedies to which NIKE may be entitled at law or in equity.\n-4-\n8. General Provisions.\n8.1 Survival. This A greement shall continue in effect after the termination of Employee's employment regardless of\nthe reason for termination.\n8.2 W Waiver. No waiver, amendment, modification or cancellation of any term or condition of this A greement shall be\neffective unless executed in writing by both Parties. No written waiver shall excuse the performance of any act other than the\nact or acts specifically referred to therein.\n8.3 Severability. Each provision herein shall be treated as a separate and independent clause and unenforceability of\nany\none clause shall in no way impact the enforceability of any other clause. Should any of the provisions in this A greement be\nfound to be unreasonable or invalid by a court of competent jurisdiction, such provision shall be enforceable to the maximum\nextent enforceable by the law of that jurisdiction.\n8.4 A pplicable Law and Jurisdiction. This A greement and Employee's employment hereunder, shall be construed\naccording to the laws of the State of Oregon. Employee further hereby submits to the jurisdiction of, and agrees that exclusive\njurisdiction over and venue for any action or proceeding arising out of or relating to this A greement shall lie in the state and\nfederal courts located in Oregon.\n-5-\nEmployee\nBy:\nName: John J. Donahoe II\nNIKE, Inc.\nBy:\nName: Monique Matheson\nTitle: EVP, Global Human Resources\n[Signature page to Covenant Not to Compete]	COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT\nPARTIES:\nJohn J. Donahoe II (“Employee”)\nNIKE, Inc., and its parent, divisions, subsidiaries and affiliates (“NIKE” or the “Company”, and together with Employee, the\n“Parties”)\nDATE: October 17, 2019\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement (the “Agreement”) is executed upon Employee’s bona\nfide advancement with NIKE and is a condition of such advancement and is effective as of January 13, 2020. Employee\nacknowledges that he was informed in a written job offer at least two weeks before starting work in his new position that this\nCovenant Not to Compete and Non-Disclosure Agreement is required and is a condition of advancement.\nB. Over the course of Employee’s employment with NIKE, Employee will be or has been exposed to and is in a position to\ndevelop confidential information particular to NIKE’s business and not generally known to the public as defined below\n(“Protected Information”). It is anticipated that Employee will continue to be exposed to Protected Information of greater\nsensitivity, and this Agreement will remain in effect until Employee leaves the Company or it is superseded by a new written\nagreement executed by the Parties.\nC. The nature of NIKE’s business is highly competitive and disclosure of any Protected Information would result in severe\ndamage to NIKE and be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected Information of NIKE can be used to NIKE’s\ndetriment anywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the Parties agree as follows:\n1. Covenant Not to Compete.\n1.1 Competition Restriction. During Employee’s employment by NIKE, under the terms of any offer letter,\nemployment contract or otherwise, and for eighteen (18) months thereafter (the “Restriction Period”), Employee will not\ndirectly or indirectly own, manage, control, or participate in the ownership, management or control of, or be employed by,\nconsult for, or be connected in any manner with, any business engaged anywhere in the world in the athletic footwear, athletic\napparel or sports equipment, sports electronics/technology and sports accessories business, or any other business that directly\ncompetes with NIKE or any of its parent, subsidiary or affiliated corporations (“Competitor”). This provision is subject to\nNIKE’s option to waive all or any portion of the Restriction Period as more specifically provided below.\n1.2 Extension of Time. In the event that Employee breaches this covenant not to compete, the Restriction Period shall\nautomatically toll from the date of the first breach, and all subsequent breaches, until the resolution of the breach through\nprivate settlement, judicial or other action, including all appeals. The Restriction Period shall continue upon the effective date\nof any such settlement, judicial or other resolution. NIKE shall not be obligated to pay Employee the additional compensation\ndescribed in paragraph 1.5 below for any period of time in which this Agreement is tolled due to Employee's breach. In the\nevent Employee receives such additional compensation for any such breach, Employee shall immediately reimburse NIKE in\nthe amount of all such compensation upon the receipt of a written request by NIKE.\n1.3 Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the\nRestriction Period or to limit the definition of Competitor by giving Employee seven (7) days’ prior written notice of such\nelection; provided, however, unless Employee is terminated for Cause (as defined below), any waiver of the Restriction Period\nmust be with the consent of Employee. In the event all or a portion of the Restriction Period is waived or the definition of\nCompetitor is limited, NIKE shall not be obligated to pay Employee for any period of time as to which the covenant not to\ncompete has been waived.\n1.4 Definition of “Cause”. For purposes of this Agreement, the Company will have “Cause” to terminate Employee’s\nemployment upon Employee’s:\n(a)conviction or plea of guilty or no contest to (i) any felony or (ii) a misdemeanor charge involving fraud, false\nstatements or misleading omissions, wrongful taking, embezzlement, bribery, forgery, counterfeiting or\nextortion;\n(b)willful conduct that is or may reasonably be expected to cause material financial or reputational harm to the\nCompany (regardless of whether such conduct occurred during or prior to Employee’s employment with the\nCompany);\n(c)continued failure to substantially perform Employee’s duties that Employee fails to remedy to the reasonable\nsatisfaction of the Company within thirty (30) days after written notice is delivered by the Company to\nEmployee that sets forth in reasonable detail the basis of Employee’s failure to substantially perform\nEmployee’s duties;\n(d)violation of the Company’s material policies (including, but not limited to, the Company’s policies pertaining to\nnon-discrimination, anti-harassment and insider trading);\n(e)(i) obstruction, (ii) attempts to influence, obstruct or impede or (iii) failure to materially cooperate with an\ninvestigation authorized by the Board of Directors of the Company (the “Board”), a self-regulatory organization\nempowered with self-regulatory responsibilities under federal or state laws or a governmental department or\nagency (an “Investigation”); or\n(f)willful withholding, removal, concealment, destruction, alteration or falsification of any material which is\nrequested in connection with an Investigation, or attempt to do so or solicitation of another to do so.\n1.5 Additional Consideration.\n(a)As additional consideration for the covenant not to compete described above, should NIKE terminate\nEmployee’s employment without Cause and elect to enforce the non-competition agreement, NIKE shall\n(subject to subparagraph (b) below) pay Employee a monthly payment equal to one-twelfth (1/12) of\nEmployee’s then current Annual NIKE Income (defined herein to mean base salary and annual Performance\nSharing Plan bonus calculated at 100% of\n-2-\nEmployee’s last targeted rate) while the Restriction Period is in effect. Except where prohibited by law, if\nNIKE terminates Employee for Cause, no additional consideration will be owed to Employee under this\nAgreement, and the covenant not to compete will remain enforceable. Nothing in this paragraph or Agreement\nalters the employment-at-will relationship between NIKE and Employee.\nIf Employee voluntarily terminates employment and NIKE elects to enforce the non-competition agreement,\nNIKE shall (subject to subparagraph (b) below) pay Employee a monthly payment equal to one-twenty-fourth\n(1/24) of Employee’s then-current Annual NIKE Income while the Restriction Period is in effect.\nSubject to subparagraph (b) below, payments during the Restriction Period shall be payable monthly on the\nlast business day of the month in accordance with NIKE’s payroll practices.\n(b)Section 409A of the Internal Revenue Code requires that the monthly payments to Employee set forth in\nsubparagraph (a) above may not commence until six months after Employee’s “separation from service” as\ndefined in Treasury Regulations § 1.409A-1(h). Failure to follow this requirement will result in substantial tax\npenalties to Employee. Accordingly, the commencement of these payments will be delayed until after the\nsix-month period following Employee’s separation from service in order to comply with Section 409A and avoid\ntax penalties for Employee. All payments that Employee would otherwise have received before the date that is\nsix months after Employee’s separation from service will be accumulated by NIKE and paid to Employee in a\nlump sum promptly following the end of the six-month period, together with interest at a fluctuating rate per\nannum equal to the prime rate as published from time to time in The Wall Street Journal on these delayed\npayments from the date otherwise payable under subparagraph (a) until the date actually paid.\n1.6 Withholding and Offset. NIKE reserves the right to withhold from additional consideration payable to Employee\nall federal, state and local taxes as shall be required, as well as any other amounts authorized or required by NIKE policy.\nNIKE reserves the right, exercisable in its sole discretion, to reduce the amount of additional consideration by amounts that\nEmployee owes NIKE, including but not limited to any payments due to NIKE in accordance with the NIKE Tax Equalization\nPolicy if Employee is employed as a transferee during his employment with NIKE. Employee agrees that notwithstanding the\namount of any withholding and/or offset, even in an amount that reduces payments of additional consideration to zero dollars\n($0.00), the covenant not to compete will remain enforceable. To the extent withholding or offset does not extinguish amounts\nthat Employee owes to NIKE, Employee remains obligated for the balance of the amounts owed.\n2. Subsequent Employer. Employee agrees to notify NIKE at the time of separation of employment of the name of\nEmployee’s new employer, if known. Employee further agrees to disclose to NIKE the name of any subsequent employer\nduring the Restriction Period, wherever located and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure Agreement.\n3.1 Protectable Information Defined. “Protected Information” shall mean all proprietary information, in whatever form\nand format, of NIKE and all information provided to NIKE by third parties that NIKE is obligated to keep confidential.\nEmployee agrees that any and all information to which Employee has access concerning NIKE projects and internal NIKE\ninformation is Protected Information, whether in verbal form, machine-readable form, written or other tangible form, and\nwhether designated as confidential or unmarked. Without limiting the foregoing, Protected Information includes trade secrets\nand competitively sensitive\n-3-\nbusiness or professional information (regardless of whether such information constitutes a trade secret) relating to NIKE’s\nresearch and development activities, its intellectual property and the filing or pendency of patent applications, trade secrets,\nconfidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor lists, contract factory lists,\npricing information, manufacturing plans, business and marketing plans or strategy, product development plans, product launch\nplans, financial information, sales information, methods of operation, manufacturing processes and methods, products, and\npersonnel information.\n3.2 Excluded Information. Notwithstanding paragraph 3.1, Protected Information excludes any information that is or\nbecomes part of the public domain through no act or failure to act on the part of the Employee. Specifically, Employee shall be\npermitted to retain as part of his personal portfolio copies of Employee’s original artwork and designs, provided the artwork or\ndesigns have become part of the public domain. In any dispute between the Parties with respect to this exclusion, the burden of\nproof shall be on Employee and such proof will be by clear and convincing evidence.\n3.3 Employee’s Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter,\nEmployee shall hold in confidence and protect all Protected Information and shall not, at any time, directly or indirectly, use\nany Protected Information for any purpose outside the scope of Employee’s employment with NIKE or disclose any Protected\nInformation to any third person or organization without the prior written consent of NIKE. Specifically, but not by way of\nlimitation, Employee shall not ever copy, transmit, reproduce, summarize, quote, publish or make any commercial or other use\nwhatsoever of any Protected Information without the prior written consent of NIKE. Employee shall also take reasonable\nsecurity precautions and such other actions as may be necessary to ensure that there is no use or disclosure, intentional or\ninadvertent, of Protected Information in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at any time, and in any event, upon termination of employment,\nEmployee shall immediately return to NIKE all Protected Information in whatever form, including tapes, notebooks, drawings,\ndigital files or other media containing Protected Information, and all copies thereof, then in Employee’s possession or under\nEmployee’s control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, Employee shall notify NIKE immediately\nif Employee becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person\nemployed or not employed by NIKE at the time of such possession, use or knowledge. Employee shall cooperate with NIKE in\nthe investigation of any such incident and will cooperate with NIKE in any litigation with third parties deemed necessary by\nNIKE to protect the Protected Information. NIKE shall provide reasonable reimbursement to Employee for each hour so\nengaged and that amount shall not be diminished by operation of any payment under paragraph 1.5 of this Agreement.\n6. Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, Employee shall not\ndirectly or indirectly solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other\ncompany or business organization, any NIKE employee, whether or not such employee is a full-time employee or temporary\nemployee and whether or not such employment is pursuant to a written agreement or is at will or any independent contractor\nworking for NIKE.\n7. Accounting of Profits. Employee agrees that, if Employee should violate any term of this Agreement, NIKE shall be\nentitled to an accounting and repayment of all profits, compensation, commissions, remuneration or benefits that Employee\ndirectly or indirectly has realized and/or may realize as a result of or in connection with any such violation (including return of\nany additional consideration paid by NIKE pursuant to paragraph 1.5 above). Such remedy shall be in addition to and not in\nlimitation of any injunctive relief or other rights or remedies to which NIKE may be entitled at law or in equity.\n-4-\n8. General Provisions.\n8.1 Survival. This Agreement shall continue in effect after the termination of Employee’s employment, regardless of\nthe reason for termination.\n8.2 Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement shall be\neffective unless executed in writing by both Parties. No written waiver shall excuse the performance of any act other than the\nact or acts specifically referred to therein.\n8.3 Severability. Each provision herein shall be treated as a separate and independent clause and unenforceability of\nany one clause shall in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be\nfound to be unreasonable or invalid by a court of competent jurisdiction, such provision shall be enforceable to the maximum\nextent enforceable by the law of that jurisdiction.\n8.4 Applicable Law and Jurisdiction. This Agreement, and Employee’s employment hereunder, shall be construed\naccording to the laws of the State of Oregon. Employee further hereby submits to the jurisdiction of, and agrees that exclusive\njurisdiction over and venue for any action or proceeding arising out of or relating to this Agreement shall lie in the state and\nfederal courts located in Oregon.\n***\n-5-\nEmployee\nBy: _______________________________\nName: John J. Donahoe II\nNIKE, Inc.\nBy: _______________________________\nName: Monique Matheson\nTitle: EVP, Global Human Resources\n[Signature page to Covenant Not to Compete]
+15398fb3b5f357981a8be88dc4bb376e.pdf	effective_date jurisdiction party term	EX-10.2 3 d56535dex102.htm EX-10.2\nExhibit 10.2\nL. B . FOSTER COMPANY\n415 Holiday Drive Pittsburgh, PA 15220\nCONFIDENTIALITY AGREEMENT\nFebruary 12, 2016\nLegion Partners Asset Management, LLC\n9401 Wilshire Blvd, Suite 705\nBeverly Hills, CA 90212\nAttention: Bradley S. Vizi, Managing Director\nLadies and Gentlemen:\nThis letter agreement shall become effective upon its execution following the appointment of the New Director to the Board of Directors\n(the “Board”) of L. B . Foster Company, a Pennsylvania corporation (the “Company”). Capitalized terms used herein but not otherwise defined\nherein shall have the meanings given to such terms in the agreement (the “Board Composition Agreement”), dated as of the date of this letter\nagreement, among the Company and the persons set forth on Schedule A hereto, pursuant to which the Company has agreed to appoint, at the\nrequest and recommendation of the Investor Group, the New Director, to the Board, subject to the covenants and other agreements contained\ntherein. The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement, during the Standstill\nPeriod (as defined in the Board Composition Agreement) and not at any time thereafter, the New Director may, if and to the extent he or she\ndesires to do so, disclose information, including certain non-public, confidential or proprietary information concerning the Company, that he or\nshe obtains while serving as a member of the Board to each of the persons or entities listed on Schedule B hereto that are and remain\nRepresentatives (as hereinafter defined) of Legion Partners Asset Management, LLC, a Delaware limited liability company (collectively,\n“Legion” or “you”), who need to know such information, and may discuss such information with any and all such Representatives, subject to the\nterms and conditions of this letter agreement; provided, that prior to the disclosure of any Evaluation Material (as hereinafter defined) to any of\nyour Representatives, you must first have received from each Representative (other than your legal advisors at the law firm of Olshan Frome\nWolosky LLP) a written duly executed Representative Undertaking in the form attached hereto as Exhibit A and a copy of such Representative\nUndertaking must be provided to the Company prior to any such disclosure pursuant to the notice provisions in paragraph 17 of this letter\nagreement; provided, further, that the New Director shall be entitled to supplement Schedule B attached hereto upon the Company’s prior written\nconsent (such consent not to be unreasonably withheld) to add any Representatives not now existing or retained, as applicable, so long as such\npersons or entities qualify as such under the terms of this letter agreement and execute a written duly executed Representative Undertaking in the\nform attached hereto as Exhibit A and submitted to the Company in accordance with the terms hereof. In consideration for, and as a condition of,\nsuch information being furnished to you and your Affiliates, Associates, directors, officers, employees, and legal advisors representing you in\nlieu of the law firm of Olshan Frome Wolosky LLP (each a “Representative”, or collectively, the “Representatives”), subject to the restrictions in\nparagraph 2, you agree to treat any and all information concerning or relating to the Company or any of its subsidiaries or affiliates that is\nfurnished to you or your Representatives (regardless of the manner in which it is\n1\nfurnished, including in written or electronic format or orally, gathered by visual inspection or otherwise) by the New Director, or by or on behalf\nof the Company, together with any notes, analyses, reports, models, compilations, studies, interpretations, documents, records or extracts thereof\ncontaining, referring, relating to, based upon or derived from such information, in whole or in part (collectively, “Evaluation Material”), strictly\nconfidential in accordance with the provisions of this letter agreement, and to take or abstain from taking the other actions hereinafter set forth.\n1. The term “Evaluation Material” does not include information that (i) is or has become generally available to the public other than as a\nresult of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement, (ii) was within your or any of your\nRepresentatives’ possession on a non-confidential basis prior to its being furnished to you by the New Director, or by or on behalf of the\nCompany or its agents, representatives, attorneys, advisors, directors, officers or employees (each a “Company Representative”, or collectively,\nthe “Company Representatives”), (iii) is received from a source other than the New Director, the Company or any Company representatives, or\n(iv) that you demonstrate to the extent reasonably practicable was independently developed by you or your Representatives without reference to\nor use of the Evaluation Material; provided, that in the case of (ii) or (iii) above, the source of such information was not, to your knowledge,\nbound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other\nperson with respect to such information at the time the information was disclosed to you.\n2. You and your Representatives will, and you will cause your Representatives to, (a) keep the Evaluation Material strictly confidential and\n(b) not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided, however,\nthat you may only privately disclose any of such information: (A) to your Representatives (i) who need to know such information for the sole\npurpose of advising you on your investment in the Company, (ii) who are informed by you of the confidential nature of such information and\nwho are directed by you to treat the Evaluation Material in a manner that is in strict compliance with the terms of this letter agreement, and\n(iii) who execute in writing a Representative Undertaking in the form attached hereto as Exhibit A; provided, further, that you will be responsible\nfor any violation of this letter agreement by your Representatives as if they were parties to this letter agreement; and (B) to the Company and the\nCompany Representatives. It is understood and agreed that no New Director shall disclose to you or your Representatives any legal or other\nadvice, including, but not limited to, any information that is marked attorney-client work product, attorney-client communication, privileged and\nconfidential or by other words purporting to indicate that the information is subject to the attorney-client privilege or attorney work-product\nprivilege, that may be included in the Evaluation Material with respect to which such disclosure may constitute waiver of the Company’s\nattorney-client privilege or attorney work-product privilege. Notwithstanding this Paragraph 2, your legal advisors at the law firm of Olshan\nFrome Wolosky LLP are not required to execute a Representative Undertaking, provided, however, that you covenant to instruct such counsel to\n(x) hold the Evaluation Material strictly confidential in accordance with the terms of this Agreement and (y) return the Evaluation Material to\nyou (or destroy it) at the conclusion of such law firm’s representation of you in connection with your investment in the Company.\n3. In addition, you agree that, without the prior written consent of the Company and except as otherwise disclosed in this letter agreement,\nyou will not disclose to any other person the fact that the Evaluation Material has been made available to you or any of your Representatives.\n4. Notwithstanding anything herein to the contrary, in the event that you or any of your Representatives are required by applicable law,\nregulation or legal or judicial process (including without limitation, by deposition, interrogatory, request for documents, subpoena, civil\ninvestigative demand or\n2\nsimilar process) to disclose any of the Evaluation Material, you will promptly notify (except where such notice would be legally prohibited) the\nCompany so that it may seek a protective order or other appropriate remedy (and if the Company seeks such an order, you will provide such\ncooperation as the Company shall reasonably request), at its sole cost and expense. Nothing herein shall be deemed to prevent you or your\nRepresentatives, as the case may be, from honoring a subpoena, legal process or other legal requirement that requires discovery, disclosure or\nproduction of the Evaluation Material if (a) after notifying and cooperating with the Company as required above, you produce or disclose only\nthat portion of the Evaluation Material which your outside legal counsel advises you is legally required to be so produced or disclosed and you\ninform the recipient of such Evaluation Material of the existence of this letter agreement and the confidential nature of such Evaluation Material;\nor (b) the Company consents in writing to having the Evaluation Material produced or disclosed pursuant to the subpoena, legal process or other\nlegal requirement. Unless legally required, in no event will you or any of your Representatives oppose action by the Company to obtain a\nprotective order or other relief to prevent the disclosure of the Evaluation Material or to obtain reliable assurance that confidential treatment will\nbe afforded to the Evaluation Material. For the avoidance of doubt, and notwithstanding anything contained herein to the contrary, disclosures\nmade pursuant hereto shall not be construed to permit disclosures made by you or your Representatives, publicly or privately, whether to the U.S.\nSecurities and Exchange Commission or its Staff, the Company’s shareholders or any other person or entity, in connection with or relating to any\nsolicitation made by you pursuant to Regulation 14A of the Securities Exchange Act of 1934, as amended, or any other state or Federal securities\nlaws applicable to any solicitations of the Company’s shareholders of proxies or other authorizations to vote the shares of a Company shareholder\nor otherwise take any action that any Company shareholder can take.\n5. It is understood and agreed that monetary damages may not be a sufficient remedy for any threatened or actual breach of this letter\nagreement, and that the Company is entitled to seek specific performance and injunctive or other equitable relief in connection with any such\nthreatened or actual breach of this letter agreement. Such remedy shall not be deemed to be the exclusive remedy for breach of this letter\nagreement, but shall be in addition to all other remedies available at law or equity to the Company.\n6. You undertake that you and your Representatives shall inform the Company immediately and in writing of any actual or suspected\nbreach of the obligations imposed under this letter agreement as you may be aware of and provide all possible assistance in order to minimize the\neffects of such breach.\n7. You acknowledge that (a) none of the Company or any Company Representatives makes any representation or warranty, express or\nimplied, as to the accuracy or completeness of any Evaluation Material, and (b) none of the Company or any Company Representatives shall\nhave any liability to you or to any of your Representatives directly or indirectly relating to or resulting from the use of the Evaluation Material or\nany errors therein or omissions therefrom.\n8. All Evaluation Material shall remain the property of the Company. Neither you nor any of your Representatives shall by virtue of any\ndisclosure of and/or your use of any Evaluation Material acquire any rights with respect thereto, all of which rights (including all intellectual\nproperty rights) shall remain exclusively with the Company.\n9. At any time, upon the request of the Company, you will promptly deliver to the Company or destroy all hard copies of the Evaluation\nMaterial and use commercially reasonable efforts to permanently erase or delete all electronic copies of the Evaluation Material in your or any of\nyour Representatives’ possession or control, whether the Evaluation Material is (i) furnished to you by or on\n3\nbehalf of the Company pursuant hereto or (ii) prepared by you, and no copy thereof in any form shall be retained, provided, however, that you\nand your Representatives shall be permitted to retain such Evaluation Material as is necessary to enable you and your Representatives to comply\nwith any applicable document retention polices or requirements under applicable law or regulation and to retain any computer records and\ncomputer files containing any Evaluation Material if required pursuant to any current automatic archiving and backup procedures; provided,\nhowever, that such retention shall be solely for legal, regulatory or archival purposes, as the case may be, and that any such retained Evaluation\nMaterial shall remain subject to the confidentiality and use restrictions of this letter agreement notwithstanding termination of this letter\nagreement. At the written request of the Company you shall provide the Company with a certificate of compliance with the foregoing sentence\nsigned by you or your chief compliance officer. Notwithstanding the return or erasure or deletion of Evaluation Material, you and your\nRepresentatives will continue to be bound by the obligations contained in this letter agreement.\n10. You hereby acknowledge that you are aware that the United States federal securities laws prohibit any person who has received from an\nissuer material, non-public information from purchasing or selling securities of such issuer or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in reliance upon\nsuch information.\n11. You represent and warrant to the Company that (i) you have all requisite company power and authority to execute and deliver this letter\nagreement and to perform your obligations hereunder, (ii) this letter agreement has been duly authorized, executed and delivered by you, and is a\nvalid and binding obligation, enforceable against you in accordance with its terms, (iii) this letter agreement will not result in a violation of any\nterms or conditions of any agreements to which you are a party or by which you may otherwise be bound or of any law, rule, license, regulation,\njudgment, order or decree governing or affecting you, and (iv) your entry into this letter agreement does not require approval by any owners or\nholders of any equity or other interest in you (except as has already been obtained).\n12. The Company represents and warrants to you that (i) the Company has all requisite power and authority to execute and deliver this\nletter agreement and to perform its obligations hereunder, (ii) this letter agreement has been duly authorized, executed and delivered by the\nCompany, and is a valid and binding obligation, enforceable against the Company in accordance with its terms, (iii) this letter agreement will not\nresult in a violation of any terms or conditions of any agreements to which the Company is a party or by which the Company may otherwise be\nbound or of any law, rule, license, regulation, judgment, order or decree governing or affecting the Company, and (iv) the Company’s entry into\nthis letter agreement does not require approval by any owners or holders of any equity or other interest in the Company (except as has already\nbeen obtained).\n13. Any waiver by the Company of a breach of any provision of this letter agreement shall not operate as or be construed to be a waiver of\nany other breach of such provision or of any breach of any other provision of this letter agreement. The failure of the Company to insist upon\nstrict adherence to any term of this letter agreement on one or more occasions shall not be considered a waiver or deprive the Company of the\nright thereafter to insist upon strict adherence to that term or any other term of this letter agreement.\n14. You acknowledge and agree that the value of the Evaluation Material to the Company is unique and substantial, but may be impractical\nor difficult to assess in monetary terms. You further acknowledge and agree that in the event of an actual or threatened violation of this letter\nagreement, immediate and irreparable harm or injury may be caused for which money damages may not be an\n4\nadequate remedy. Accordingly, you acknowledge and agree that, in addition to any and all other remedies which may be available to the\nCompany at law or equity, the Company shall be entitled to an injunction or injunctions to prevent breaches of this letter agreement and to\nenforce specifically the terms and provisions of this letter agreement exclusively in the federal or state courts of the Commonwealth of\nPennsylvania located in the City of Pittsburgh. In the event that any action shall be brought in equity to enforce the provisions of this letter\nagreement, you shall not allege, and you hereby waive the defense, that there is an adequate remedy at law.\n15. This letter agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of\nPennsylvania without reference to the choice of laws or conflict of laws principles thereof or of any other jurisdiction to the extent that such\nprinciples would require or permit the application of the laws of another jurisdiction. Each of the parties irrevocably agrees that any legal action\nor proceeding with respect to this letter agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any\njudgment in respect of this letter agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors or\nassigns, whether in tort or contract or at law or in equity, shall be brought and determined exclusively in the federal or state courts of the\nCommonwealth of Pennsylvania located in the City of Pittsburgh. Each of the parties hereto hereby irrevocably submits with regard to any such\naction or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and\nagrees that it will not bring any action relating to this letter agreement in any court other than the aforesaid courts. Each of the parties hereto\nhereby irrevocably waives, and agrees not to assert in any action or proceeding with respect to this letter agreement, (a) any claim that it is not\npersonally subject to the jurisdiction of the above-named courts for any reason, (b) any claim that it or its property is exempt or immune from\njurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to\njudgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by applicable\nlegal requirements, any claim that (i) the suit, action or proceeding in such court is brought in an inconvenient forum, (ii) the venue of such suit,\naction or proceeding is improper or (iii) this letter agreement, or the subject matter hereof, may not be enforced in or by such courts.\n16. This letter agreement, including the exhibits hereto, and the Agreement contain the entire understanding of the parties with respect to\nthe subject matter of this letter agreement and supersedes all prior and contemporaneous agreements, understandings and representations,\nwhether oral or written, of the parties with respect to the subject matter hereof. There are no restrictions, agreements, promises, representations,\nwarranties, covenants or undertakings between the parties with respect to the subject matter of this letter agreement other than those expressly set\nforth herein or in the Agreement.\n17. Any notices, consents, determinations, waivers or other communications required or permitted to be given under the terms of this letter\nagreement must be in writing and will be deemed to have been delivered: (a) upon receipt, when delivered personally; (b) upon receipt, when\nsent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party);\n(c) upon confirmation of receipt, when sent by email (provided such confirmation is not automatically generated); or (d) one (1) business day\nafter deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The\naddresses and facsimile numbers for such communications shall be:\n5\nIf to the Company:\nL. B . Foster Company\n415 Holiday Drive, Suite 4\nPittsburgh, PA 15220\nFax No.: (412) 928-7891\nEmail: pguinee@lbfoster.com\nAttention: Patrick J. Guinee, Esq., Vice President, General Counsel & Corporate Secretary\nWith a copy to (which shall not constitute notice):\nMorgan, Lewis & Bockius LLP\n1111 Pennsylvania Avenue, NW\nWashington, DC 20004\nFax No.: 202-739-3001\nEmail: kgottfried@morganlewis.com\nAttention: Keith E. Gottfried, Esq.\nIf to Legion or any member thereof:\nLegion Partners Asset Management, LLC\n9401 Wilshire Blvd, Suite 705\nBeverly Hills, CA 90212\nFax No.: (424) 234-5123\nEmail: bvizi@legionpartners.com\nAttention: Bradley S. Vizi, Managing Director\nWith a copy (which shall not constitute notice) to:\nOlshan Frome Wolosky LLP\n65 East 55th Street\nNew York, New York 10022\nAttention: Steve Wolosky\nFacsimile: (212) 451-2222\nEmail: swolosky@olshanlaw.com\n18. If any term, provision, covenant or restriction of this letter agreement is held by a court of competent jurisdiction to be invalid, void or\nunenforceable, the remainder of the terms, provisions, covenants and restrictions of this letter agreement shall remain in full force and effect and\nshall in no way be affected, impaired or invalidated. It is hereby stipulated and declared to be the intention of the parties that the parties would\nhave executed the remaining terms, provisions, covenants and restrictions without including any of such which may be hereafter declared invalid,\nvoid or unenforceable. In addition, the parties agree to use commercially reasonable efforts to agree upon and substitute a valid and enforceable\nterm, provision, covenant or restriction for any of such that is held invalid, void or enforceable by a court of competent jurisdiction.\n19. This letter agreement may be executed in two or more counterparts, each of which shall be considered one and the same agreement and\nshall become effective when counterparts have been signed by each of the parties and delivered to the other party (including by means of\nelectronic delivery or facsimile).\n6\n20. This letter agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part, by you\nwithout the express written consent of the Company. This letter agreement, however, shall be binding on successors of the parties hereto.\n21. Legion shall cause any replacement director for a New Director appointed to the Board pursuant to the Board Composition Agreement\nwho is an Affiliate or Associate of any Investor or who is employed by or a member of, or directly or indirectly affiliated with, controlled by, or\nunder common control of any Investor, to execute a copy of this letter agreement. For purposes of this letter agreement, any reference to a\n“replacement director” shall be limited to only a replacement director appointed pursuant to the Board Composition Agreement who is an\nAffiliate or Associate of any Investor or is employed by or a member of, or directly or indirectly affiliated with, controlled by, or under common\ncontrol of any Investor. For the avoidance of doubt, no party to this letter agreement or the Board Composition Agreement may share Evaluation\nMaterial with any person appointed to the Board pursuant to the Board Composition Agreement who does not execute a copy of this letter\nagreement or other form of confidentiality agreement with and acceptable to the Company.\n22. The confidentiality obligations set forth in this letter agreement with respect to the confidentiality of information concerning or relating\nto the Company shall remain in full force and effect for as long as such information continues to be deemed Evaluation Material pursuant to the\nterms of this letter agreement; provided, that upon expiration of the Standstill Period, nothing herein shall preclude the Investor Group from\nseeking the election of director candidates or submitting proposals at any meeting of shareholders of the Company, including, without limitation,\nmaking public or private statements relating to the Company if those statements do not reference, include, or incorporate, directly or indirectly,\nthe Evaluation Material in violation of this letter agreement; and provided further that the foregoing provision shall not be deemed and is not\nintended to constitute a waiver of any rights or obligations under this letter agreement. Notwithstanding the foregoing, the Investors and the New\nDirector acknowledge that certain Evaluation Material may constitute trade secrets and other similar information which may be subject to\nstatutory protection under applicable law and nothing herein shall be deemed to waive or otherwise the limit rights of the Company or such\nEvaluation Material to any such protections.\n23. No licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied by this letter agreement.\n24. Each of the parties hereto acknowledges that it has been represented by counsel of its choice throughout all negotiations that have\npreceded the execution of this letter agreement, and that it has executed the same with the advice of said counsel. Each party and its counsel\ncooperated and participated in the drafting and preparation of this letter agreement and the documents referred to herein, and any and all drafts\nrelating thereto exchanged among the parties shall be deemed the work product of all of the parties and may not be construed against any party\nby reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in\nthis letter agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each of the parties hereto,\nand any controversy over interpretations of this letter agreement shall be decided without regards to events of drafting or preparation. The term\n“including” shall in all instances be deemed to mean “including without limitation.”\n[Signature Pages Follow]\n7\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon this\nletter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nL. B . FOSTER COMPANY\nBy: /s/ Robert P. Bauer\nName: Robert P. Bauer\nTitle: President & CEO\n[Signature Page to the Confidentiality Agreement]\nAccepted and agreed as of the date first written above:\nLEGION PARTNERS, L.P. I\nBy: Legion Partners Asset Management, LLC\nInvestment Advisor\nBy:\n/s/ Bradley S. Vizi\nName:\nBradley S. Vizi\nTitle:\nManaging Director\nLEGION PARTNERS, L.P. II\nBy: Legion Partners Asset Management, LLC\nInvestment Advisor\nBy:\n/s/ Bradley S. Vizi\nName:\nBradley S. Vizi\nTitle:\nManaging Director\nLEGION PARTNERS SPECIAL OPPORTUNITIES, L.P. II\nBy: Legion Partners Asset Management, LLC\nInvestment Advisor\nBy:\n/s/ Bradley S. Vizi\nName:\nBradley S. Vizi\nTitle:\nManaging Director\nLEGION PARTNERS, LLC\nBy: Legion Partners Holdings, LLC\nManaging Member\nBy:\n/s/ Bradley S. Vizi\nName:\nBradley S. Vizi\nTitle:\nManaging Director\n[Signature Page to the Confidentiality Agreement]\nLEGION PARTNERS ASSET MANAGEMENT, LLC\nBy:\n/s/ Bradley S. Vizi\nName: Bradley S. Vizi\nTitle: Managing Director\nLEGION PARTNERS HOLDINGS, LLC\nBy:\n/s/ Bradley S. Vizi\nName: Bradley S. Vizi\nTitle: Managing Director\n/s/ Christopher S. Kiper\nCHRISTOPHER S. KIPER\n/s/ Raymond White\nRAYMOND WHITE\n/s/ Bradley S. Vizi\nBRADLEY S. VIZI\n/s/ David A. Katz\nDAVID A. KATZ\n/s/ Justin Albert\nJUSTIN ALBERT\n[Signature Page to the Confidentiality Agreement]\nSCHEDULE A\nLEGION PARTNERS, L.P. I\nLEGION PARTNERS, L.P. II\nLEGION PARTNERS SPECIAL OPPORTUNITIES, L.P. II\nLEGION PARTNERS, LLC\nLEGION PARTNERS ASSET MANAGEMENT, LLC\nLEGION PARTNERS HOLDINGS, LLC\nBRADLEY S. VIZI\nCHRISTOPHER S. KIPER\nRAYMOND WHITE\nSchedule A\nSCHEDULE B\nLEGION PARTNERS, L.P. I\nLEGION PARTNERS, L.P. II\nLEGION PARTNERS SPECIAL OPPORTUNITIES, L.P. II\nLEGION PARTNERS, LLC\nLEGION PARTNERS ASSET MANAGEMENT, LLC\nLEGION PARTNERS HOLDINGS, LLC\nCHRISTOPHER S. KIPER\nRAYMOND WHITE\nBRADLEY S. VIZI\nDAVID A. KATZ\nJUSTIN ALBERT\nOLSHAN FROME WOLOSKY LLP\nEXHIBIT A\nREPRESENTATIVE UNDERTAKING\n(SEE ATTACHED)\nREPRESENTATIVE UNDERTAKING\nEach of [•] [•] (each an “Obligor”), makes this undertaking (“Undertaking”) to, and for the benefit of, L. B . Foster Company, a\nPennsylvania corporation (the “Company”), in consideration of certain confidential information of the Company that Obligor wishes to receive.\n1. Obligor certifies that [•]1 is providing confidential information (“Evaluation Material”) to Obligor under a confidentiality agreement,\ndated February [•], 2016, between Legion Partners, L.P. I, Legion Partners, L.P. II, Legion Partners Special Opportunities, L.P. II,\nLegion Partners, LLC, Legion Partners Asset Management, LLC, Legion Partners Holdings, LLC, Christopher S. Kiper, Raymond\nWhite, Bradley S. Vizi, David A. Katz, Justin Albert (collectively, the Investors”) and the Company (“Confidentiality Agreement”)\nand (ii) Obligor has read the Confidentiality Agreement, understands the terms and conditions of the Confidentiality Agreement and\nagrees to be fully bound by the Confidentiality Agreement. Capitalized terms not otherwise defined in this Undertaking have the\nmeaning ascribed to them in the Confidentiality Agreement.\n2. Obligor agrees that, upon receipt of the Evaluation Material, if not already restricted, it shall automatically become restricted from\ntaking any of the actions that the Investors are restricted from taking with respect to the Company pursuant to the terms of Section 3\nof the Agreement, dated February [•], 2016 (the “Board Composition Agreement”), by and between the Company and the Investors\nwhich agreement provides for, among other things, the appointment of Bradley S. Vizi to the Company’s Board of Directors and\nObligor hereby undertakes to comply with, and be subject to, the terms of Section 3 of the Board Composition Agreement as though\nit was a signatory thereto.\n3. If Obligor is required by law, regulation, regulatory authority, judicial or governmental order or in connection with any interrogatory,\nsubpoena, civil investigatory demand or any similar process relating to any legal proceeding, investigation, hearing or otherwise to\ndisclose in any manner any Information, Obligor covenants to provide the Company with prompt notice (to the extent legally\npermissible) in advance of such disclosure so that the Company may seek, at the Company’s sole expense, a protective order or other\nappropriate remedy, waive compliance with this Paragraph 2 or both. In the event that no protective order or other remedy is\nobtained, or if the Company waives compliance with this Paragraph 2, Obligor covenants to (a) furnish only such Information as\nObligor is advised is legally required and (b) exercise commercially reasonable efforts to obtain assurance that confidential treatment\nwill be accorded to any Information that is compelled to be disclosed.\n4. Obligor (a) consents to submit itself to personal jurisdiction and venue in any action brought in any federal or state court of the\nCommonwealth of Pennsylvania located in the City of Pittsburgh (each, a “Court”) in connection with any matter arising to\n1\nApplicable Legion Entity to be inserted\nenforce any provision of this Undertaking or the Confidentiality Agreement, (b) agrees that it will not attempt to deny or defeat such\npersonal jurisdiction by motion or other request for leave from any Court, (c) agrees that it will not bring any action relating to this\nUndertaking or the Confidentiality Agreement in any court or venue other than a Court, (d) agrees that service of process for\npurposes of proceedings to enforce this Undertaking or the Confidentiality Agreement is effective and proper if delivered by\nregistered or certified mail, and (e) agrees that any breach of this Undertaking or the Confidentiality Agreement may be punishable\nby such relief as deemed appropriate by any Court.\n5. This Undertaking may be modified or waived only by a separate writing executed by Obligor and the Company that expressly\nmodifies or waives this Undertaking. No failure or delay in exercising any right, power or privilege under this Undertaking will\noperate as a waiver of any such right, power or privilege, and no single or partial exercise of any right, power or privilege under this\nUndertaking will preclude any other or further exercise of any such right, power or privilege.\n6. Delivery of an executed signature page of this Undertaking by telecopy or other electronic imaging means will be effective as\ndelivery of a manually executed signature page of this Undertaking.\n7. This Undertaking will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without\nregard to its choice of laws or conflict of laws principles or of any other jurisdiction to the extent that such principles would require\nor permit the application of the laws of another jurisdiction.\n8. The terms of this Undertaking and Obligor ’s obligations hereunder shall expire two (2) years from the date of the Confidentiality\nAgreement.\n[Signature page on next page]	EX-10.2 3 d56535dex102.htm EX-10.2\nExhibit 10.2\nL. B. FOSTER COMPANY\n415 Holiday Drive Pittsburgh, PA 15220\nCONFIDENTIALITY AGREEMENT\nFebruary 12, 2016\nLegion Partners Asset Management, LL.C\n9401 Wilshire Blvd, Suite 705\nBeverly Hills, CA 90212\nAttention: Bradley S. Vizi, Managing Director\nLadies and Gentlemen:\nThis letter agreement shall become effective upon its execution following the appointment of the New Director to the Board of Directors\n(the “Board”) of L. B. Foster Company, a Pennsylvania corporation (the “Company”). Capitalized terms used herein but not otherwise defined\nherein shall have the meanings given to such terms in the agreement (the “Board Composition Agreement”), dated as of the date of this letter\nagreement, among the Company and the persons set forth on Schedule A hereto, pursuant to which the Company has agreed to appoint, at the\nrequest and recommendation of the Investor Group, the New Director, to the Board, subject to the covenants and other agreements contained\ntherein. The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement, during the Standstill\nPeriod (as defined in the Board Composition Agreement) and not at any time thereafter, the New Director may, if and to the extent he or she\ndesires to do so, disclose information, including certain non-public, confidential or proprietary information concerning the Company, that he or\nshe obtains while serving as a member of the Board to each of the persons or entities listed on Schedule B hereto that are and remain\nRepresentatives (as hereinafter defined) of Legion Partners Asset Management, LL.C, a Delaware limited liability company (collectively,\n“Legion” or “you”), who need to know such information, and may discuss such information with any and all such Representatives, subject to the\nterms and conditions of this letter agreement; provided, that prior to the disclosure of any Evaluation Material (as hereinafter defined) to any of\nyour Representatives, you must first have received from each Representative (other than your legal advisors at the law firm of Olshan Frome\nWolosky LLP) a written duly executed Representative Undertaking in the form attached hereto as Exhibit A and a copy of such Representative\nUndertaking must be provided to the Company prior to any such disclosure pursuant to the notice provisions in paragraph 17 of this letter\nagreement; provided, further, that the New Director shall be entitled to supplement Schedule B attached hereto upon the Company’s prior written\nconsent (such consent not to be unreasonably withheld) to add any Representatives not now existing or retained, as applicable, so long as such\npersons or entities qualify as such under the terms of this letter agreement and execute a written duly executed Representative Undertaking in the\nform attached hereto as Exhibit A and submitted to the Company in accordance with the terms hereof. In consideration for, and as a condition of,\nsuch information being furnished to you and your Affiliates, Associates, directors, officers, employees, and legal advisors representing you in\nlieu of the law firm of Olshan Frome Wolosky LLP (each a “Representative”, or collectively, the “Representatives”), subject to the restrictions in\nparagraph 2, you agree to treat any and all information concerning or relating to the Company or any of its subsidiaries or affiliates that is\nfurnished to you or your Representatives (regardless of the manner in which it is\n \n1\nfurnished, including in written or electronic format or orally, gathered by visual inspection or otherwise) by the New Director, or by or on behalf\nof the Company, together with any notes, analyses, reports, models, compilations, studies, interpretations, documents, records or extracts thereof\ncontaining, referring, relating to, based upon or derived from such information, in whole or in part (collectively, “Evaluation Material”), strictly\nconfidential in accordance with the provisions of this letter agreement, and to take or abstain from taking the other actions hereinafter set forth.\n1. The term “Evaluation Material” does not include information that (i) is or has become generally available to the public other than as a\nresult of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement, (ii) was within your or any of your\nRepresentatives’ possession on a non-confidential basis prior to its being furnished to you by the New Director, or by or on behalf of the\nCompany or its agents, representatives, attorneys, advisors, directors, officers or employees (each a “Company Representative”, or collectively,\nthe “Company Representatives™), (iii) is received from a source other than the New Director, the Company or any Company representatives, or\n(iv) that you demonstrate to the extent reasonably practicable was independently developed by you or your Representatives without reference to\nor use of the Evaluation Material; provided, that in the case of (ii) or (iii) above, the source of such information was not, to your knowledge,\nbound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other\nperson with respect to such information at the time the information was disclosed to you.\n2. You and your Representatives will, and you will cause your Representatives to, (a) keep the Evaluation Material strictly confidential and\n(b) not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided, however,\nthat you may only privately disclose any of such information: (A) to your Representatives (i) who need to know such information for the sole\npurpose of advising you on your investment in the Company, (ii) who are informed by you of the confidential nature of such information and\nwho are directed by you to treat the Evaluation Material in a manner that is in strict compliance with the terms of this letter agreement, and\n(iii) who execute in writing a Representative Undertaking in the form attached hereto as Exhibit A; provided, further, that you will be responsible\nfor any violation of this letter agreement by your Representatives as if they were parties to this letter agreement; and (B) to the Company and the\nCompany Representatives. It is understood and agreed that no New Director shall disclose to you or your Representatives any legal or other\nadvice, including, but not limited to, any information that is marked attorney-client work product, attorney-client communication, privileged and\nconfidential or by other words purporting to indicate that the information is subject to the attorney-client privilege or attorney work-product\nprivilege, that may be included in the Evaluation Material with respect to which such disclosure may constitute waiver of the Company’s\nattorney-client privilege or attorney work-product privilege. Notwithstanding this Paragraph 2, your legal advisors at the law firm of Olshan\nFrome Wolosky LLP are not required to execute a Representative Undertaking, provided, however, that you covenant to instruct such counsel to\n(x) hold the Evaluation Material strictly confidential in accordance with the terms of this Agreement and (y) return the Evaluation Material to\nyou (or destroy it) at the conclusion of such law firm’s representation of you in connection with your investment in the Company.\n3. In addition, you agree that, without the prior written consent of the Company and except as otherwise disclosed in this letter agreement,\nyou will not disclose to any other person the fact that the Evaluation Material has been made available to you or any of your Representatives.\n4. Notwithstanding anything herein to the contrary, in the event that you or any of your Representatives are required by applicable law,\nregulation or legal or judicial process (including without limitation, by deposition, interrogatory, request for documents, subpoena, civil\ninvestigative demand or\nsimilar process) to disclose any of the Evaluation Material, you will promptly notify (except where such notice would be legally prohibited) the\nCompany so that it may seek a protective order or other appropriate remedy (and if the Company seeks such an order, you will provide such\ncooperation as the Company shall reasonably request), at its sole cost and expense. Nothing herein shall be deemed to prevent you or your\nRepresentatives, as the case may be, from honoring a subpoena, legal process or other legal requirement that requires discovery, disclosure or\nproduction of the Evaluation Material if (a) after notifying and cooperating with the Company as required above, you produce or disclose only\nthat portion of the Evaluation Material which your outside legal counsel advises you is legally required to be so produced or disclosed and you\ninform the recipient of such Evaluation Material of the existence of this letter agreement and the confidential nature of such Evaluation Material;\nor (b) the Company consents in writing to having the Evaluation Material produced or disclosed pursuant to the subpoena, legal process or other\nlegal requirement. Unless legally required, in no event will you or any of your Representatives oppose action by the Company to obtain a\nprotective order or other relief to prevent the disclosure of the Evaluation Material or to obtain reliable assurance that confidential treatment will\nbe afforded to the Evaluation Material. For the avoidance of doubt, and notwithstanding anything contained herein to the contrary, disclosures\nmade pursuant hereto shall not be construed to permit disclosures made by you or your Representatives, publicly or privately, whether to the U.S.\nSecurities and Exchange Commission or its Staff, the Company’s shareholders or any other person or entity, in connection with or relating to any\nsolicitation made by you pursuant to Regulation 14A of the Securities Exchange Act of 1934, as amended, or any other state or Federal securities\nlaws applicable to any solicitations of the Company’s shareholders of proxies or other authorizations to vote the shares of a Company shareholder\nor otherwise take any action that any Company shareholder can take.\n5. It is understood and agreed that monetary damages may not be a sufficient remedy for any threatened or actual breach of this letter\nagreement, and that the Company is entitled to seek specific performance and injunctive or other equitable relief in connection with any such\nthreatened or actual breach of this letter agreement. Such remedy shall not be deemed to be the exclusive remedy for breach of this letter\nagreement, but shall be in addition to all other remedies available at law or equity to the Company.\n6. You undertake that you and your Representatives shall inform the Company immediately and in writing of any actual or suspected\nbreach of the obligations imposed under this letter agreement as you may be aware of and provide all possible assistance in order to minimize the\neffects of such breach.\n7. You acknowledge that (a) none of the Company or any Company Representatives makes any representation or warranty, express or\nimplied, as to the accuracy or completeness of any Evaluation Material, and (b) none of the Company or any Company Representatives shall\nhave any liability to you or to any of your Representatives directly or indirectly relating to or resulting from the use of the Evaluation Material or\nany errors therein or omissions therefrom.\n8. All Evaluation Material shall remain the property of the Company. Neither you nor any of your Representatives shall by virtue of any\ndisclosure of and/or your use of any Evaluation Material acquire any rights with respect thereto, all of which rights (including all intellectual\nproperty rights) shall remain exclusively with the Company.\n9. At any time, upon the request of the Company, you will promptly deliver to the Company or destroy all hard copies of the Evaluation\nMaterial and use commercially reasonable efforts to permanently erase or delete all electronic copies of the Evaluation Material in your or any of\nyour Representatives’ possession or control, whether the Evaluation Material is (i) furnished to you by or on\n3\nbehalf of the Company pursuant hereto or (ii) prepared by you, and no copy thereof in any form shall be retained, provided, however, that you\nand your Representatives shall be permitted to retain such Evaluation Material as is necessary to enable you and your Representatives to comply\nwith any applicable document retention polices or requirements under applicable law or regulation and to retain any computer records and\ncomputer files containing any Evaluation Material if required pursuant to any current automatic archiving and backup procedures; provided,\nhowever, that such retention shall be solely for legal, regulatory or archival purposes, as the case may be, and that any such retained Evaluation\nMaterial shall remain subject to the confidentiality and use restrictions of this letter agreement notwithstanding termination of this letter\nagreement. At the written request of the Company you shall provide the Company with a certificate of compliance with the foregoing sentence\nsigned by you or your chief compliance officer. Notwithstanding the return or erasure or deletion of Evaluation Material, you and your\nRepresentatives will continue to be bound by the obligations contained in this letter agreement.\n10. You hereby acknowledge that you are aware that the United States federal securities laws prohibit any person who has received from an\nissuer material, non-public information from purchasing or selling securities of such issuer or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in reliance upon\nsuch information.\n11. You represent and warrant to the Company that (i) you have all requisite company power and authority to execute and deliver this letter\nagreement and to perform your obligations hereunder, (ii) this letter agreement has been duly authorized, executed and delivered by you, and is a\nvalid and binding obligation, enforceable against you in accordance with its terms, (iii) this letter agreement will not result in a violation of any\nterms or conditions of any agreements to which you are a party or by which you may otherwise be bound or of any law, rule, license, regulation,\njudgment, order or decree governing or affecting you, and (iv) your entry into this letter agreement does not require approval by any owners or\nholders of any equity or other interest in you (except as has already been obtained).\n12. The Company represents and warrants to you that (i) the Company has all requisite power and authority to execute and deliver this\nletter agreement and to perform its obligations hereunder, (ii) this letter agreement has been duly authorized, executed and delivered by the\nCompany, and is a valid and binding obligation, enforceable against the Company in accordance with its terms, (iii) this letter agreement will not\nresult in a violation of any terms or conditions of any agreements to which the Company is a party or by which the Company may otherwise be\nbound or of any law, rule, license, regulation, judgment, order or decree governing or affecting the Company, and (iv) the Company’s entry into\nthis letter agreement does not require approval by any owners or holders of any equity or other interest in the Company (except as has already\nbeen obtained).\n13. Any waiver by the Company of a breach of any provision of this letter agreement shall not operate as or be construed to be a waiver of\nany other breach of such provision or of any breach of any other provision of this letter agreement. The failure of the Company to insist upon\nstrict adherence to any term of this letter agreement on one or more occasions shall not be considered a waiver or deprive the Company of the\nright thereafter to insist upon strict adherence to that term or any other term of this letter agreement.\n14. You acknowledge and agree that the value of the Evaluation Material to the Company is unique and substantial, but may be impractical\nor difficult to assess in monetary terms. You further acknowledge and agree that in the event of an actual or threatened violation of this letter\nagreement, immediate and irreparable harm or injury may be caused for which money damages may not be an\n4\nadequate remedy. Accordingly, you acknowledge and agree that, in addition to any and all other remedies which may be available to the\nCompany at law or equity, the Company shall be entitled to an injunction or injunctions to prevent breaches of this letter agreement and to\nenforce specifically the terms and provisions of this letter agreement exclusively in the federal or state courts of the Commonwealth of\nPennsylvania located in the City of Pittsburgh. In the event that any action shall be brought in equity to enforce the provisions of this letter\nagreement, you shall not allege, and you hereby waive the defense, that there is an adequate remedy at law.\n15. This letter agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of\nPennsylvania without reference to the choice of laws or conflict of laws principles thereof or of any other jurisdiction to the extent that such\nprinciples would require or permit the application of the laws of another jurisdiction. Each of the parties irrevocably agrees that any legal action\nor proceeding with respect to this letter agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any\njudgment in respect of this letter agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors or\nassigns, whether in tort or contract or at law or in equity, shall be brought and determined exclusively in the federal or state courts of the\nCommonwealth of Pennsylvania located in the City of Pittsburgh. Each of the parties hereto hereby irrevocably submits with regard to any such\naction or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and\nagrees that it will not bring any action relating to this letter agreement in any court other than the aforesaid courts. Each of the parties hereto\nhereby irrevocably waives, and agrees not to assert in any action or proceeding with respect to this letter agreement, (a) any claim that it is not\npersonally subject to the jurisdiction of the above-named courts for any reason, (b) any claim that it or its property is exempt or immune from\njurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to\njudgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by applicable\nlegal requirements, any claim that (i) the suit, action or proceeding in such court is brought in an inconvenient forum, (ii) the venue of such suit,\naction or proceeding is improper or (iii) this letter agreement, or the subject matter hereof, may not be enforced in or by such courts.\n16. This letter agreement, including the exhibits hereto, and the Agreement contain the entire understanding of the parties with respect to\nthe subject matter of this letter agreement and supersedes all prior and contemporaneous agreements, understandings and representations,\nwhether oral or written, of the parties with respect to the subject matter hereof. There are no restrictions, agreements, promises, representations,\nwarranties, covenants or undertakings between the parties with respect to the subject matter of this letter agreement other than those expressly set\nforth herein or in the Agreement.\n17. Any notices, consents, determinations, waivers or other communications required or permitted to be given under the terms of this letter\nagreement must be in writing and will be deemed to have been delivered: (a) upon receipt, when delivered personally; (b) upon receipt, when\nsent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party);\n(c) upon confirmation of receipt, when sent by email (provided such confirmation is not automatically generated); or (d) one (1) business day\nafter deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The\naddresses and facsimile numbers for such communications shall be:\nIf to the Company:\nL. B. Foster Company\n415 Holiday Drive, Suite 4\nPittsburgh, PA 15220\nFax No.: (412) 928-7891\nEmail: pguinee@lbfoster.com\nAttention: Patrick J. Guinee, Esq., Vice President, General Counsel & Corporate Secretary\nWith a copy to (which shall not constitute notice):\nMorgan, Lewis & Bockius LLP\n1111 Pennsylvania Avenue, NW\nWashington, DC 20004\nFax No.: 202-739-3001\nEmail: kgottfried@morganlewis.com\nAttention: Keith E. Gottfried, Esq.\nIf to Legion or any member thereof:\nLegion Partners Asset Management, LL.C\n9401 Wilshire Blvd, Suite 705\nBeverly Hills, CA 90212\nFax No.: (424) 234-5123\nEmail: bvizi@legionpartners.com\nAttention: Bradley S. Vizi, Managing Director\nWith a copy (which shall not constitute notice) to:\nOlshan Frome Wolosky LLP\n65 East 55th Street\nNew York, New York 10022\nAttention: Steve Wolosky\nFacsimile: (212) 451-2222\nEmail: swolosky@olshanlaw.com\n18. If any term, provision, covenant or restriction of this letter agreement is held by a court of competent jurisdiction to be invalid, void or\nunenforceable, the remainder of the terms, provisions, covenants and restrictions of this letter agreement shall remain in full force and effect and\nshall in no way be affected, impaired or invalidated. It is hereby stipulated and declared to be the intention of the parties that the parties would\nhave executed the remaining terms, provisions, covenants and restrictions without including any of such which may be hereafter declared invalid,\nvoid or unenforceable. In addition, the parties agree to use commercially reasonable efforts to agree upon and substitute a valid and enforceable\nterm, provision, covenant or restriction for any of such that is held invalid, void or enforceable by a court of competent jurisdiction.\n19. This letter agreement may be executed in two or more counterparts, each of which shall be considered one and the same agreement and\nshall become effective when counterparts have been signed by each of the parties and delivered to the other party (including by means of\nelectronic delivery or facsimile).\n20. This letter agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part, by you\nwithout the express written consent of the Company. This letter agreement, however, shall be binding on successors of the parties hereto.\n21. Legion shall cause any replacement director for a New Director appointed to the Board pursuant to the Board Composition Agreement\nwho is an Affiliate or Associate of any Investor or who is employed by or a member of, or directly or indirectly affiliated with, controlled by, or\nunder common control of any Investor, to execute a copy of this letter agreement. For purposes of this letter agreement, any reference to a\n“replacement director” shall be limited to only a replacement director appointed pursuant to the Board Composition Agreement who is an\nAffiliate or Associate of any Investor or is employed by or a member of, or directly or indirectly affiliated with, controlled by, or under common\ncontrol of any Investor. For the avoidance of doubt, no party to this letter agreement or the Board Composition Agreement may share Evaluation\nMaterial with any person appointed to the Board pursuant to the Board Composition Agreement who does not execute a copy of this letter\nagreement or other form of confidentiality agreement with and acceptable to the Company.\n22. The confidentiality obligations set forth in this letter agreement with respect to the confidentiality of information concerning or relating\nto the Company shall remain in full force and effect for as long as such information continues to be deemed Evaluation Material pursuant to the\nterms of this letter agreement; provided, that upon expiration of the Standstill Period, nothing herein shall preclude the Investor Group from\nseeking the election of director candidates or submitting proposals at any meeting of shareholders of the Company, including, without limitation,\nmaking public or private statements relating to the Company if those statements do not reference, include, or incorporate, directly or indirectly,\nthe Evaluation Material in violation of this letter agreement; and provided further that the foregoing provision shall not be deemed and is not\nintended to constitute a waiver of any rights or obligations under this letter agreement. Notwithstanding the foregoing, the Investors and the New\nDirector acknowledge that certain Evaluation Material may constitute trade secrets and other similar information which may be subject to\nstatutory protection under applicable law and nothing herein shall be deemed to waive or otherwise the limit rights of the Company or such\nEvaluation Material to any such protections.\n23. No licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied by this letter agreement.\n24. Each of the parties hereto acknowledges that it has been represented by counsel of its choice throughout all negotiations that have\npreceded the execution of this letter agreement, and that it has executed the same with the advice of said counsel. Each party and its counsel\ncooperated and participated in the drafting and preparation of this letter agreement and the documents referred to herein, and any and all drafts\nrelating thereto exchanged among the parties shall be deemed the work product of all of the parties and may not be construed against any party\nby reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in\nthis letter agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each of the parties hereto,\nand any controversy over interpretations of this letter agreement shall be decided without regards to events of drafting or preparation. The term\n“including” shall in all instances be deemed to mean “including without limitation.”\n[Signature Pages Follow]\n7\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon this\nletter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nL. B. FOSTER COMPANY\nBy:  /s/ Robert P. Bauer\nName: Robert P. Bauer\nTitle: President & CEO\n[Signature Page to the Confidentiality Agreement]\nAccepted and agreed as of the date first written above:\nLEGION PARTNERS, L.P. 1\nBy: Legion Partners Asset Management, LL.C\nInvestment Advisor\nBy: /s/ Bradley S. Vizi\nName: Bradley S. Vizi\nTitle: Managing Director\nLEGION PARTNERS, L.P. I\nBy: Legion Partners Asset Management, LL.C\nInvestment Advisor\nBy: /s/ Bradley S. Vizi\nName: Bradley S. Vizi\nTitle: Managing Director\nLEGION PARTNERS SPECIAL OPPORTUNITIES, L.P. I\nBy: Legion Partners Asset Management, LL.C\nInvestment Advisor\nBy: /s/ Bradley S. Vizi\nName: Bradley S. Vizi\nTitle: Managing Director\nLEGION PARTNERS, LLC\nBy: Legion Partners Holdings, LLC\nManaging Member\nBy: /s/ Bradley S. Vizi\nName: Bradley S. Vizi\nTitle: Managing Director\n[Signature Page to the Confidentiality Agreement]\nLEGION PARTNERS ASSET MANAGEMENT, LLC\nBy: /s/ Bradley S. Vizi\nName: Bradley S. Vizi\nTitle:  Managing Director\nLEGION PARTNERS HOLDINGS, LLC\nBy: /s/ Bradley S. Vizi\nName: Bradley S. Vizi\nTitle:  Managing Director\n/s/ Christopher S. Kiper\nCHRISTOPHER S. KIPER\n/s/ Raymond White\nRAYMOND WHITE\n/s/ Bradley S. Vizi\nBRADLEY S. VIZI\n/s/ David A. Katz\nDAVID A. KATZ\n/s/ Justin Albert\nJUSTIN ALBERT\n[Signature Page to the Confidentiality Agreement]\nSCHEDULE A\nLEGION PARTNERS, L.P. I\nLEGION PARTNERS, L.P. II\nLEGION PARTNERS SPECIAL OPPORTUNITIES, L.P. II\nLEGION PARTNERS, LLC\nLEGION PARTNERS ASSET MANAGEMENT, LLC\nLEGION PARTNERS HOLDINGS, LLC\nBRADLEY S. VIZI\nCHRISTOPHER S. KIPER\nRAYMOND WHITE\nSchedule A\nSCHEDULE B\nLEGION PARTNERS, L.P. I\nLEGION PARTNERS, L.P. II\nLEGION PARTNERS SPECIAL OPPORTUNITIES, L.P. II\nLEGION PARTNERS, LLC\nLEGION PARTNERS ASSET MANAGEMENT, LLC\nLEGION PARTNERS HOLDINGS, LLC\nCHRISTOPHER S. KIPER\nRAYMOND WHITE\nBRADLEY S. VIZI\nDAVID A. KATZ\nJUSTIN ALBERT\nOLSHAN FROME WOLOSKY LLP\n \nEXHIBIT A\nREPRESENTATIVE UNDERTAKING\n(SEE ATTACHED)\nREPRESENTATIVE UNDERTAKING\nEach of [*] [*] (each an “Obligor”), makes this undertaking (“Undertaking”) to, and for the benefit of, L. B. Foster Company, a\nPennsylvania corporation (the “Company”), in consideration of certain confidential information of the Company that Obligor wishes to receive. 1\n1. Obligor certifies that [*]1 is providing confidential information (“Evaluation Material”) to Obligor under a confidentiality agreement,\ndated February [+], 2016, between Legion Partners, L.P. I, Legion Partners, L.P. II, Legion Partners Special Opportunities, L.P. II,\nLegion Partners, LLC, Legion Partners Asset Management, LL.C, Legion Partners Holdings, LL.C, Christopher S. Kiper, Raymond\nWhite, Bradley S. Vizi, David A. Katz, Justin Albert (collectively, the Investors”) and the Company (“Confidentiality Agreement”)\nand (ii) Obligor has read the Confidentiality Agreement, understands the terms and conditions of the Confidentiality Agreement and\nagrees to be fully bound by the Confidentiality Agreement. Capitalized terms not otherwise defined in this Undertaking have the\nmeaning ascribed to them in the Confidentiality Agreement.\nObligor agrees that, upon receipt of the Evaluation Material, if not already restricted, it shall automatically become restricted from\ntaking any of the actions that the Investors are restricted from taking with respect to the Company pursuant to the terms of Section 3\nof the Agreement, dated February [+], 2016 (the “Board Composition Agreement”), by and between the Company and the Investors\nwhich agreement provides for, among other things, the appointment of Bradley S. Vizi to the Company’s Board of Directors and\nObligor hereby undertakes to comply with, and be subject to, the terms of Section 3 of the Board Composition Agreement as though\nit was a signatory thereto.\n \nIf Obligor is required by law, regulation, regulatory authority, judicial or governmental order or in connection with any interrogatory,\nsubpoena, civil investigatory demand or any similar process relating to any legal proceeding, investigation, hearing or otherwise to\ndisclose in any manner any Information, Obligor covenants to provide the Company with prompt notice (to the extent legally\npermissible) in advance of such disclosure so that the Company may seek, at the Company’s sole expense, a protective order or other\nappropriate remedy, waive compliance with this Paragraph 2 or both. In the event that no protective order or other remedy is\nobtained, or if the Company waives compliance with this Paragraph 2, Obligor covenants to (a) furnish only such Information as\nObligor is advised is legally required and (b) exercise commercially reasonable efforts to obtain assurance that confidential treatment\nwill be accorded to any Information that is compelled to be disclosed.\nObligor (a) consents to submit itself to personal jurisdiction and venue in any action brought in any federal or state court of the\nCommonwealth of Pennsylvania located in the City of Pittsburgh (each, a “Court”) in connection with any matter arising to\nApplicable Legion Entity to be inserted\fenforce any provision of this Undertaking or the Confidentiality Agreement, (b) agrees that it will not attempt to deny or defeat such\npersonal jurisdiction by motion or other request for leave from any Court, (c) agrees that it will not bring any action relating to this\nUndertaking or the Confidentiality Agreement in any court or venue other than a Court, (d) agrees that service of process for\npurposes of proceedings to enforce this Undertaking or the Confidentiality Agreement is effective and proper if delivered by\nregistered or certified mail, and (e) agrees that any breach of this Undertaking or the Confidentiality Agreement may be punishable\nby such relief as deemed appropriate by any Court.\nThis Undertaking may be modified or waived only by a separate writing executed by Obligor and the Company that expressly\nmodifies or waives this Undertaking. No failure or delay in exercising any right, power or privilege under this Undertaking will\noperate as a waiver of any such right, power or privilege, and no single or partial exercise of any right, power or privilege under this\nUndertaking will preclude any other or further exercise of any such right, power or privilege.\nDelivery of an executed signature page of this Undertaking by telecopy or other electronic imaging means will be effective as\ndelivery of a manually executed signature page of this Undertaking.\nThis Undertaking will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without\nregard to its choice of laws or conflict of laws principles or of any other jurisdiction to the extent that such principles would require\nor permit the application of the laws of another jurisdiction.\nThe terms of this Undertaking and Obligor’s obligations hereunder shall expire two (2) years from the date of the Confidentiality\nAgreement.\n[Signature page on next page]	EX-10.2 3 d56535dex102.htm EX-10.2\nExhibit 10.2\nL. B. FOSTER COMPANY\n415 Holiday Drive Pittsburgh, PA 15220\nCONFIDENTIALITY AGREEMENT\nFebruary 12, 2016\nLegion Partners Asset Management, LLC\n9401 Wilshire Blvd, Suite 705\nBeverly Hills, CA 90212\nAttention: Bradley S. Vizi, Managing Director\nLadies and Gentlemen:\nThis letter agreement shall become effective upon its execution following the appointment of the New Director to the Board of Directors\n(the "Board") of L. B. Foster Company, a Pennsylvania corporation (the "Company."). Capitalized terms used herein but not otherwise defined\nherein shall have the meanings given to such terms in the agreement (the "Board Composition Agreement"), dated as of the date of this letter\nagreement, among the Company and the persons set forth on Schedule A hereto, pursuant to which the Company has agreed to appoint, at the\nrequest and recommendation of the Investor Group, the New Director, to the Board, subject to the covenants and other agreements contained\ntherein. The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement, during the Standstill\nPeriod (as defined in the Board Composition Agreement) and not at any time thereafter, the New Director may, if and to the extent he or she\ndesires to do so, disclose information, including certain non-public, confidential or proprietary information concerning the Company, that he or\nshe obtains while serving as a member of the Board to each of the persons or entities listed on Schedule B hereto that are and remain\nRepresentatives (as hereinafter defined) of Legion Partners Asset Management, LLC, a Delaware limited liability company (collectively,\n"Legion" or "you"), who need to know such information, and may discuss such information with any and all such Representatives, subject to the\nterms and conditions of this letter agreement; provided, that prior to the disclosure of any Evaluation Material (as hereinafter defined) to any of\nyour Representatives, you must first have received from each Representative (other than your legal advisors at the law firm of Olshan Frome\nWolosky LLP) a written duly executed Representative Undertaking in the form attached hereto as Exhibit A and a copy of such Representative\nUndertaking must be provided to the Company prior to any such disclosure pursuant to the notice provisions in paragraph 17 of this letter\nagreement; provided, further, that the New Director shall be entitled to supplement Schedule B attached hereto upon the Company's prior written\nconsent (such consent not to be unreasonably withheld) to add any Representatives not now existing or retained, as applicable, so long as such\npersons or entities qualify as such under the terms of this letter agreement and execute a written duly executed Representative Undertaking in the\nform attached hereto as Exhibit A and submitted to the Company in accordance with the terms hereof. In consideration for, and as a condition of,\nsuch information being furnished to you and your Affiliates, Associates, directors, officers, employees, and legal advisors representing you in\nlieu of the law firm of Olshan Frome Wolosky LLP (each a "Representative", or collectively, the "Representatives"), subject to the restrictions\nin\nparagraph 2, you agree to treat any and all information concerning or relating to the Company or any of its subsidiaries or affiliates that is\nfurnished to you or your Representatives (regardless of the manner in which it is\n1\nfurnished, including in written or electronic format or orally, gathered by visual inspection or otherwise) by the New Director, or by or on behalf\nof the Company, together with any notes, analyses, reports, models, compilations, studies, interpretations, documents, records or extracts thereof\ncontaining, referring, relating to, based upon or derived from such information, in whole or in part (collectively, "Evaluation Material"), strictly\nconfidential in accordance with the provisions of this letter agreement, and to take or abstain from taking the other actions hereinafter set forth.\n1. The term "Evaluation Material" does not include information that (i) is or has become generally available to the public other than as a\nresult of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement, (ii) was within your or any of your\nRepresentatives' possession on a non-confidential basis prior to its being furnished to you by the New Director, or by or on behalf of the\nCompany or its agents, representatives, attorneys, advisors, directors, officers or employees (each a "Company. Representative", or collectively,\nthe "Company. Representatives"), (iii) is received from a source other than the New Director, the Company or any Company representatives, or\n(iv) that you demonstrate to the extent reasonably practicable was independently developed by you or your Representatives without reference to\nor use of the Evaluation Material; provided, that in the case of (ii) or (iii) above, the source of such information was not, to your knowledge,\nbound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other\nperson with respect to such information at the time the information was disclosed to you.\n2. You and your Representatives will, and you will cause your Representatives to, (a) keep the Evaluation Material strictly confidential and\n(b)\nnot disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided,\nhowever,\nthat you may only privately disclose any of such information: (A) to your Representatives (i) who need to know such information for the sole\npurpose of advising you on your investment in the Company, (ii) who are informed by you of the confidential nature of such information\nand\nwho are directed by you to treat the Evaluation Material in a manner that is in strict compliance with the terms of this letter agreement, and\n(iii) who execute in writing a Representative Undertaking in the form attached hereto as Exhibit A; provided, further, that you will be responsible\nfor any violation of this letter agreement by your Representatives as if they were parties to this letter agreement; and (B) to the Company and\nthe\nCompany Representatives. It is understood and agreed that no New Director shall disclose to you or your Representatives any legal or other\nadvice, including, but not limited to, any information that is marked attorney-client work product, attorney-client communication, privileged and\nconfidential or by other words purporting to indicate that the information is subject to the attorney-client privilege or attorney work-product\nprivilege,\nthat\nmay\nbe\nincluded\nin\nthe\nEvaluation\nMaterial\nwith\nrespect\nto\nwhich\nsuch\ndisclosure\nmay\nconstitute\nwaiver\nof\nthe\nCompany's\nattorney-client privilege or attorney work-product privilege. Notwithstanding this Paragraph 2, your legal advisors at the law firm of Olshan\nFrome Wolosky LLP are not required to execute a Representative Undertaking, provided, however, that you covenant to instruct such counsel to\n(x) hold the Evaluation Material strictly confidential in accordance with the terms of this Agreement and (y) return the Evaluation Material to\nyou (or destroy it) at the conclusion of such law firm's representation of you in connection with your investment in the Company.\n3. In addition, you agree that, without the prior written consent of the Company and except as otherwise disclosed in this letter agreement,\nyou will not disclose to any other person the fact that the Evaluation Material has been made available to you or any of your Representatives.\n4. Notwithstanding anything herein to the contrary, in the event that you or any of your Representatives are required by applicable law,\nregulation or legal or judicial process (including without limitation, by deposition, interrogatory, request for documents, subpoena, civil\ninvestigative demand or\n2\nsimilar process) to disclose any of the Evaluation Material, you will promptly notify (except where such notice would be legally prohibited) the\nCompany so that it may seek a protective order or other appropriate remedy (and if the Company seeks such an order, you will provide such\ncooperation as the Company shall reasonably request), at its sole cost and expense. Nothing herein shall be deemed to prevent you or your\nRepresentatives, as the case may be, from honoring a subpoena, legal process or other legal requirement that requires discovery, disclosure or\nproduction of the Evaluation Material if (a) after notifying and cooperating with the Company as required above, you produce or disclose only\nthat portion of the Evaluation Material which your outside legal counsel advises you is legally required to be so produced or disclosed and\nyou\ninform the recipient of such Evaluation Material of the existence of this letter agreement and the confidential nature of such Evaluation Material;\nor (b) the Company consents in writing to having the Evaluation Material produced or disclosed pursuant to the subpoena, legal process or other\nlegal requirement. Unless legally required, in no event will you or any of your Representatives oppose action by the Company to obtain a\nprotective order or other relief to prevent the disclosure of the Evaluation Material or to obtain reliable assurance that confidential treatment will\nbe afforded to the Evaluation Material. For the avoidance of doubt, and notwithstanding anything contained herein to the contrary, disclosures\nmade pursuant hereto shall not be construed to permit disclosures made by you or your Representatives, publicly or privately, whether to the U.S.\nSecurities and Exchange Commission or its Staff, the Company's shareholders or any other person or entity, in connection with or relating to any\nsolicitation made by you pursuant to Regulation 14A of the Securities Exchange Act of 1934, as amended, or any other state or Federal securities\nlaws applicable to any solicitations of the Company's shareholders of proxies or other authorizations to vote the shares of a Company shareholder\nor otherwise take any action that any Company shareholder can take.\n5. It is understood and agreed that monetary damages may not be a sufficient remedy for any threatened or actual breach of this letter\nagreement, and that the Company is entitled to seek specific performance and injunctive or other equitable relief in connection with any such\nthreatened or actual breach of this letter agreement. Such remedy shall not be deemed to be the exclusive remedy for breach of this letter\nagreement, but shall be in addition to all other remedies available at law or equity to the Company.\n6. You undertake that you and your Representatives shall inform the Company immediately and in writing of any actual or suspected\nbreach of the obligations imposed under this letter agreement as you may be aware of and provide all possible assistance in order to minimize\nthe\neffects of such breach.\n7. You acknowledge that (a) none of the Company or any Company Representatives makes any representation or warranty, express or\nimplied, as to the accuracy or completeness of any Evaluation Material, and (b) none of the Company or any Company Representatives shall\nhave any liability to you or to any of your Representatives directly or indirectly relating to or resulting from the use of the Evaluation Material or\nany errors therein or omissions therefrom.\n8. All Evaluation Material shall remain the property of the Company. Neither you nor any of your Representatives shall by virtue of any\ndisclosure of and/or your use of any Evaluation Material acquire any rights with respect thereto, all of which rights (including all intellectual\nproperty rights) shall remain exclusively with the Company.\n9. At any time, upon the request of the Company, you will promptly deliver to the Company or destroy all hard copies of the Evaluation\nMaterial and use commercially reasonable efforts to permanently erase or delete all electronic copies of the Evaluation Material in your or any of\nyour Representatives' possession or control, whether the Evaluation Material is (i) furnished to you by or on\n3\nbehalf of the Company pursuant hereto or (ii) prepared by you, and no copy thereof in any form shall be retained, provided, however, that you\nand your Representatives shall be permitted to retain such Evaluation Material as is necessary to enable you and your Representatives to comply\nwith any applicable document retention polices or requirements under applicable law or regulation and to retain any computer records and\ncomputer files containing any Evaluation Material if required pursuant to any current automatic archiving and backup procedures; provided,\nhowever, that such retention shall be solely for legal, regulatory or archival purposes, as the case may be, and that any such retained Evaluation\nMaterial shall remain subject to the confidentiality and use restrictions of this letter agreement notwithstanding termination of this letter\nagreement. At the written request of the Company you shall provide the Company with a certificate of compliance with the foregoing sentence\nsigned by you or your chief compliance officer. Notwithstanding the return or erasure or deletion of Evaluation Material, you and your\nRepresentatives will continue to be bound by the obligations contained in this letter agreement.\n10. You hereby acknowledge that you are aware that the United States federal securities laws prohibit any person who has received from an\nissuer material, non-public information from purchasing or selling securities of such issuer or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in reliance upon\nsuch information.\n11. You represent and warrant to the Company that (i) you have all requisite company power and authority to execute and deliver this letter\nagreement\nand\nto perform your obligations hereunder, (ii) this letter agreement has been duly authorized, executed and delivered by you, and\nis\na\nvalid and binding obligation, enforceable against you in accordance with its terms, (iii) this letter agreement will not result in a violation of any\nterms or conditions of any agreements to which you are a party or by which you may otherwise be bound or of any law, rule, license, regulation,\njudgment, order or decree governing or affecting you, and (iv) your entry into this letter agreement does not require approval by any owners or\nholders of any equity or other interest in you (except as has already been obtained).\n12.\nThe Company represents and warrants to you that (i) the Company has all requisite power and authority to execute and deliver this\nletter agreement and to perform its obligations hereunder, (ii) this letter agreement has been duly authorized, executed and delivered by the\nCompany, and is a valid and binding obligation, enforceable against the Company in accordance with its terms, (iii) this letter agreement will not\nresult\nin\na\nviolation\nof\nany\nterms\nor\nconditions\nof\nany\nagreements\nto\nwhich\nthe\nCompany\nis\na\nparty\nor\nby\nwhich\nthe\nCompany\nmay\notherwise\nbe\nbound or of any law, rule, license, regulation, judgment, order or decree governing or affecting the Company, and (iv) the Company's entry into\nthis letter agreement does not require approval by any owners or holders of any equity or other interest in the Company (except as has already\nbeen obtained).\n13.\nAny waiver by the Company of a breach of any provision of this letter agreement shall not operate as or be construed to be a waiver of\nany other breach of such provision or of any breach of any other provision of this letter agreement. The failure of the Company to insist upon\nstrict adherence to any term of this letter agreement on one or more occasions shall not be considered a waiver or deprive the Company of the\nright thereafter to insist upon strict adherence to that term or any other term of this letter agreement.\n14. You acknowledge and agree that the value of the Evaluation Material to the Company is unique and substantial, but may be impractical\nor difficult to assess in monetary terms. You further acknowledge and agree that in the event of an actual or threatened violation of this letter\nagreement, immediate and irreparable harm or injury may be caused for which money damages may not be an\n4\nadequate remedy. Accordingly, you acknowledge and agree that, in addition to any and all other remedies which may be available to the\nCompany at law or equity, the Company shall be entitled to an injunction or injunctions to prevent breaches of this letter agreement and\nto\nenforce specifically the terms and provisions of this letter agreement exclusively in the federal or state courts of the Commonwealth of\nPennsylvania located in the City of Pittsburgh. In the event that any action shall be brought in equity to enforce the provisions of this\nletter\nagreement, you shall not allege, and you hereby waive the defense, that there is an adequate remedy at law.\n15. This letter agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of\nPennsylvania without reference to the choice of laws or conflict of laws principles thereof or of any other jurisdiction to the extent that such\nprinciples would require or permit the application of the laws of another jurisdiction. Each of the parties irrevocably agrees that any legal action\nor proceeding with respect to this letter agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any\njudgment in respect of this letter agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors\nor\nassigns, whether in tort or contract or at law or in equity, shall be brought and determined exclusively in the federal or state courts of the\nCommonwealth of Pennsylvania located in the City of Pittsburgh. Each of the parties hereto hereby irrevocably submits with regard to any such\naction or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and\nagrees that it will not bring any action relating to this letter agreement in any court other than the aforesaid courts. Each of the parties hereto\nhereby irrevocably waives, and agrees not to assert in any action or proceeding with respect to this letter agreement, (a) any claim that it is not\npersonally subject to the jurisdiction of the above-named courts for any reason, (b) any claim that it or its property is exempt or immune from\njurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to\njudgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by applicable\nlegal requirements, any claim that (i) the suit, action or proceeding in such court is brought in an inconvenient forum, (ii) the venue of such suit,\naction or proceeding is improper or (iii) this letter agreement, or the subject matter hereof, may not be enforced in or by such courts.\n16. This letter agreement, including the exhibits hereto, and the Agreement contain the entire understanding of the parties with respect to\nthe subject matter of this letter agreement and supersedes all prior and contemporaneous agreements, understandings and representations,\nwhether oral or written, of the parties with respect to the subject matter hereof. There are no restrictions, agreements, promises, representations,\nwarranties, covenants or undertakings between the parties with respect to the subject matter of this letter agreement other than those expressly set\nforth herein or in the Agreement.\n17. Any notices, consents, determinations, waivers or other communications required or permitted to be given under the terms of this letter\nagreement must be in writing and will be deemed to have been delivered: (a) upon receipt, when delivered personally; (b) upon receipt, when\nsent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party);\n(c) upon confirmation of receipt, when sent by email (provided such confirmation is not automatically generated); or (d) one (1) business day\nafter deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The\naddresses and facsimile numbers for such communications shall be:\n5\nIf to the Company:\nL. B. Foster Company\n415 Holiday Drive, Suite 4\nPittsburgh, PA 15220\nFax No.: (412) 928-7891\nEmail: pguinee@lbfoster.com\nAttention: Patrick J. Guinee, Esq., Vice President, General Counsel & Corporate Secretary\nWith a copy to (which shall not constitute notice):\nMorgan, Lewis & Bockius LLP\n1111 Pennsylvania Avenue, NW\nWashington, DC 20004\nFax No.: 202-739-3001\nEmail: kgottfried@morganlewis.com\nAttention: Keith E. Gottfried, Esq.\nIf to Legion or any member thereof:\nLegion Partners Asset Management, LLC\n9401 Wilshire Blvd, Suite 705\nBeverly Hills, CA 90212\nFax No.: (424) 234-5123\nEmail: bvizi@legionpartners.com\nAttention: Bradley S. Vizi, Managing Director\nWith a copy (which shall not constitute notice) to:\nOlshan Frome Wolosky LLP\n65 East 55th Street\nNew York, New York 10022\nAttention: Steve Wolosky\nFacsimile: (212) 451-2222\nEmail: swolosky@olshanlaw.com\n18. If any term, provision, covenant or restriction of this letter agreement is held by a court of competent jurisdiction to be invalid, void or\nunenforceable, the remainder of the terms, provisions, covenants and restrictions of this letter agreement shall remain in full force and effect and\nshall in no way be affected, impaired or invalidated. It is hereby stipulated and declared to be the intention of the parties that the parties would\nhave executed the remaining terms, provisions, covenants and restrictions without including any of such which may be hereafter declared invalid,\nvoid or unenforceable. In addition, the parties agree to use commercially reasonable efforts to agree upon and substitute a valid and enforceable\nterm, provision, covenant or restriction for any of such that is held invalid, void or enforceable by a court of competent jurisdiction.\n19. This letter agreement may be executed in two or more counterparts, each of which shall be considered one and the same agreement and\nshall become effective when counterparts have been signed by each of the parties and delivered to the other party (including by means of\nelectronic delivery or facsimile).\n6\n20.\nThis letter agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part,\nby\nyou\nwithout the express written consent of the Company. This letter agreement, however, shall be binding on successors of the parties hereto.\n21. Legion shall cause any replacement director for a New Director appointed to the Board pursuant to the Board Composition Agreement\nwho is an Affiliate or Associate of any Investor or who is employed by or a member of, or directly or indirectly affiliated with, controlled by, or\nunder common control of any Investor, to execute a copy of this letter agreement. For purposes of this letter agreement, any reference to\na\n"replacement director" shall be limited to only a replacement director appointed pursuant to the Board Composition Agreement who is an\nAffiliate or Associate of any Investor or is employed by or a member of, or directly or indirectly affiliated with, controlled by, or under common\ncontrol of any Investor. For the avoidance of doubt, no party to this letter agreement or the Board Composition Agreement may share Evaluation\nMaterial with any person appointed to the Board pursuant to the Board Composition Agreement who does not execute a copy of this letter\nagreement or other form of confidentiality agreement with and acceptable to the Company.\n22. The confidentiality obligations set forth in this letter agreement with respect to the confidentiality of information concerning or relating\nto the Company shall remain in full force and effect for as long as such information continues to be deemed Evaluation Material pursuant to the\nterms of this letter agreement; provided, that upon expiration of the Standstill Period, nothing herein shall preclude the Investor Group from\nseeking the election of director candidates or submitting proposals at any meeting of shareholders of the Company, including, without limitation,\nmaking public or private statements relating to the Company if those statements do not reference, include, or incorporate, directly or indirectly,\nthe Evaluation Material in violation of this letter agreement; and provided further that the foregoing provision shall not be deemed and is not\nintended to constitute a waiver of any rights or obligations under this letter agreement. Notwithstanding the foregoing, the Investors and the\nNew\nDirector acknowledge that certain Evaluation Material may constitute trade secrets and other similar information which may be subject to\nstatutory protection under applicable law and nothing herein shall be deemed to waive or otherwise the limit rights of the Company or such\nEvaluation Material to any such protections.\n23.\nNo licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied by this letter agreement.\n24.\nEach of the parties hereto acknowledges that it has been represented by counsel of its choice throughout all negotiations\nthat\nhave\npreceded the execution of this letter agreement, and that it has executed the same with the advice of said counsel. Each party and its counsel\ncooperated and participated in the drafting and preparation of this letter agreement and the documents referred to herein, and any and all drafts\nrelating thereto exchanged among the parties shall be deemed the work product of all of the parties and may not be construed against any party\nby reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in\nthis letter agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each of the parties hereto,\nand any controversy over interpretations of this letter agreement shall be decided without regards to events of drafting or preparation. The term\n"including" shall in all instances be deemed to mean "including without limitation."\n[Signature Pages Follow]\n7\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon this\nletter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nL. B. FOSTER COMPANY\nBy:\n/s/ Robert P. Bauer\nName: Robert P. Bauer\nTitle: President & CEO\n[Signature Page to the Confidentiality Agreement]\nAccepted and agreed as of the date first written above:\nLEGION PARTNERS, L.P. I\nBy: Legion Partners Asset Management, LLC\nInvestment Advisor\nBy:\n/s/ Bradley S. Vizi\nName:\nBradley S. Vizi\nTitle:\nManaging Director\nLEGION PARTNERS, L.P. II\nBy: Legion Partners Asset Management, LLC\nInvestment Advisor\nBy:\n/s/ Bradley S. Vizi\nName:\nBradley S. Vizi\nTitle:\nManaging Director\nLEGION PARTNERS SPECIAL OPPORTUNITIES, L.P. II\nBy: Legion Partners Asset Management, LLC\nInvestment Advisor\nBy:\n/s/ Bradley S. Vizi\nName:\nBradley S. Vizi\nTitle:\nManaging Director\nLEGION PARTNERS, LLC\nBy: Legion Partners Holdings, LLC\nManaging Member\nBy:\n/s/ Bradley S. Vizi\nName:\nBradley S. Vizi\nTitle:\nManaging Director\n[Signature Page to the Confidentiality Agreement]\nLEGION PARTNERS ASSET MANAGEMENT, LLC\nBy:\n/s/ Bradley S. Vizi\nName: Bradley S. Vizi\nTitle: Managing Director\nLEGION PARTNERS HOLDINGS, LLC\nBy:\n/s/ Bradley S. Vizi\nName: Bradley S. Vizi\nTitle:\nManaging Director\n/s/ Christopher S. Kiper\nCHRISTOPHER S. KIPER\n/s/ Raymond White\nRAYMOND WHITE\n/s/ Bradley S. Vizi\nBRADLEY S. VIZI\n/s/ David A. Katz\nDAVID A. KATZ\n/s/ Justin Albert\nJUSTIN ALBERT\n[Signature Page to the Confidentiality Agreement]\nSCHEDULE A\nLEGION PARTNERS, L.P. I\nLEGION PARTNERS, L.P. II\nLEGION PARTNERS SPECIAL OPPORTUNITIES, L.P. II\nLEGION PARTNERS, LLC\nLEGION PARTNERS ASSET MANAGEMENT, LLC\nLEGION PARTNERS HOLDINGS, LLC\nBRADLEY S. VIZI\nCHRISTOPHER S. KIPER\nRAYMOND WHITE\nSchedule A\nSCHEDULE B\nLEGION PARTNERS, L.P. I\nLEGION PARTNERS, L.P. II\nLEGION PARTNERS SPECIAL OPPORTUNITIES, L.P. II\nLEGION PARTNERS, LLC\nLEGION PARTNERS ASSET MANAGEMENT, LLC\nLEGION PARTNERS HOLDINGS, LLC\nCHRISTOPHER S. KIPER\nRAYMOND WHITE\nBRADLEY S. VIZI\nDAVID A. KATZ\nJUSTIN ALBERT\nOLSHAN FROME WOLOSKY LLP\nEXHIBIT A\nREPRESENTATIVE UNDERTAKING\n(SEE ATTACHED)\nREPRESENTATIVE UNDERTAKING\nEach of [][] (each an "Obligor"), makes this undertaking ("Undertaking") to, and for the benefit of, L. B. Foster Company,\na\nPennsylvania corporation (the "Company."), in consideration of certain confidential information of the Company that Obligor wishes to receive.\n1.\nObligor certifies that []1 is providing confidential information ("Evaluation Material") to Obligor under a confidentiality agreement,\ndated February [], 2016, between Legion Partners, L.P. I, Legion Partners, L.P. II, Legion Partners Special Opportunities, L.P. II,\nLegion Partners, LLC, Legion Partners Asset Management, LLC, Legion Partners Holdings, LLC, Christopher S. Kiper, Raymond\nWhite, Bradley S. Vizi, David A. Katz, Justin Albert (collectively, the Investors") and the Company ("Confidentiality. Agreement")\nand (ii) Obligor has read the Confidentiality Agreement, understands the terms and conditions of the Confidentiality Agreement and\nagrees to be fully bound by the Confidentiality Agreement. Capitalized terms not otherwise defined in this Undertaking have the\nmeaning ascribed to them in the Confidentiality Agreement.\n2.\nObligor agrees that, upon receipt of the Evaluation Material, if not already restricted, it shall automatically become restricted from\ntaking any of the actions that the Investors are restricted from taking with respect to the Company pursuant to the terms of Section\n3\nof the Agreement, dated February [], 2016 (the "Board Composition Agreement"), by and between the Company and the Investors\nwhich agreement provides for, among other things, the appointment of Bradley S. Vizi to the Company's Board of Directors and\nObligor hereby undertakes to comply with, and be subject to, the terms of Section 3 of the Board Composition Agreement as though\nit was a signatory thereto.\n3.\nIf Obligor is required by law, regulation, regulatory authority, judicial or governmental order or in connection with any interrogatory,\nsubpoena, civil investigatory demand or any similar process relating to any legal proceeding, investigation, hearing or otherwise\nto\ndisclose in any manner any Information Obligor covenants to provide the Company with prompt notice (to the extent legally\npermissible) in advance of such disclosure so that the Company may seek, at the Company's sole expense, a protective order or other\nappropriate remedy, waive compliance with this Paragraph 2 or both. In the event that no protective order or other remedy is\nobtained, or if the Company waives compliance with this Paragraph 2, Obligor covenants to (a) furnish only such Information as\nObligor is advised is legally required and (b) exercise commercially reasonable efforts to obtain assurance that confidential treatment\nwill be accorded to any Information that is compelled to be disclosed.\n4.\nObligor (a) consents to submit itself to personal jurisdiction and venue in any action brought in any federal or state court of the\nCommonwealth of Pennsylvania located in the City of Pittsburgh (each, a "Court") in connection with any matter arising\nto\n1\nApplicable Legion Entity to be inserted\nenforce any provision of this Undertaking or the Confidentiality Agreement, (b) agrees that it will not attempt to deny or defeat such\npersonal jurisdiction by motion or other request for leave from any Court (c) agrees that it will not bring any action relating to this\nUndertaking or the Confidentiality Agreement in any court or venue other than a Court, (d) agrees that service of process for\npurposes of proceedings to enforce this Undertaking or the Confidentiality Agreement is effective and proper if delivered by\nregistered or certified mail, and (e) agrees that any breach of this Undertaking or the Confidentiality Agreement may be punishable\nby such relief as deemed appropriate by any Court.\n5.\nThis Undertaking may be modified or waived only by a separate writing executed by Obligor and the Company that expressly\nmodifies or waives this Undertaking. No failure or delay in exercising any right, power or privilege under this Undertaking will\noperate as a waiver of any such right, power or privilege, and no single or partial exercise of any right, power or privilege under this\nUndertaking will preclude any other or further exercise of any such right, power or privilege.\n6.\nDelivery of an executed signature page of this Undertaking by telecopy or other electronic imaging means will be effective as\ndelivery of a manually executed signature page of this Undertaking.\n7.\nThis Undertaking will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without\nregard to its choice of laws or conflict of laws principles or of any other jurisdiction to the extent that such principles would require\nor permit the application of the laws of another jurisdiction.\n8.\nThe terms of this Undertaking and Obligor's obligations hereunder shall expire two (2) years from the date of the Confidentiality\nAgreement.\n[Signature page on next page]	EX-10.2 3 d56535dex102.htm EX-10.2\nExhibit 10.2\nL. B . FOSTER COMPANY\n415 Holiday Drive Pittsburgh, PA 15220\nCONFIDENTIALITY AGREEMENT\nFebruary 12, 2016\nLegion Partners Asset Management, LLC\n9401 Wilshire Blvd, Suite 705\nBeverly Hills, CA 90212\nAttention: Bradley S. Vizi, Managing Director\nLadies and Gentlemen:\nThis letter agreement shall become effective upon its execution following the appointment of the New Director to the Board of Directors\n(the “Board”) of L. B . Foster Company, a Pennsylvania corporation (the “Company”). Capitalized terms used herein but not otherwise defined\nherein shall have the meanings given to such terms in the agreement (the “Board Composition Agreement”), dated as of the date of this letter\nagreement, among the Company and the persons set forth on Schedule A hereto, pursuant to which the Company has agreed to appoint, at the\nrequest and recommendation of the Investor Group, the New Director, to the Board, subject to the covenants and other agreements contained\ntherein. The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement, during the Standstill\nPeriod (as defined in the Board Composition Agreement) and not at any time thereafter, the New Director may, if and to the extent he or she\ndesires to do so, disclose information, including certain non-public, confidential or proprietary information concerning the Company, that he or\nshe obtains while serving as a member of the Board to each of the persons or entities listed on Schedule B hereto that are and remain\nRepresentatives (as hereinafter defined) of Legion Partners Asset Management, LLC, a Delaware limited liability company (collectively,\n“Legion” or “you”), who need to know such information, and may discuss such information with any and all such Representatives, subject to the\nterms and conditions of this letter agreement; provided, that prior to the disclosure of any Evaluation Material (as hereinafter defined) to any of\nyour Representatives, you must first have received from each Representative (other than your legal advisors at the law firm of Olshan Frome\nWolosky LLP) a written duly executed Representative Undertaking in the form attached hereto as Exhibit A and a copy of such Representative\nUndertaking must be provided to the Company prior to any such disclosure pursuant to the notice provisions in paragraph 17 of this letter\nagreement; provided, further, that the New Director shall be entitled to supplement Schedule B attached hereto upon the Company’s prior written\nconsent (such consent not to be unreasonably withheld) to add any Representatives not now existing or retained, as applicable, so long as such\npersons or entities qualify as such under the terms of this letter agreement and execute a written duly executed Representative Undertaking in the\nform attached hereto as Exhibit A and submitted to the Company in accordance with the terms hereof. In consideration for, and as a condition of,\nsuch information being furnished to you and your Affiliates, Associates, directors, officers, employees, and legal advisors representing you in\nlieu of the law firm of Olshan Frome Wolosky LLP (each a “Representative”, or collectively, the “Representatives”), subject to the restrictions in\nparagraph 2, you agree to treat any and all information concerning or relating to the Company or any of its subsidiaries or affiliates that is\nfurnished to you or your Representatives (regardless of the manner in which it is\n1\nfurnished, including in written or electronic format or orally, gathered by visual inspection or otherwise) by the New Director, or by or on behalf\nof the Company, together with any notes, analyses, reports, models, compilations, studies, interpretations, documents, records or extracts thereof\ncontaining, referring, relating to, based upon or derived from such information, in whole or in part (collectively, “Evaluation Material”), strictly\nconfidential in accordance with the provisions of this letter agreement, and to take or abstain from taking the other actions hereinafter set forth.\n1. The term “Evaluation Material” does not include information that (i) is or has become generally available to the public other than as a\nresult of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement, (ii) was within your or any of your\nRepresentatives’ possession on a non-confidential basis prior to its being furnished to you by the New Director, or by or on behalf of the\nCompany or its agents, representatives, attorneys, advisors, directors, officers or employees (each a “Company Representative”, or collectively,\nthe “Company Representatives”), (iii) is received from a source other than the New Director, the Company or any Company representatives, or\n(iv) that you demonstrate to the extent reasonably practicable was independently developed by you or your Representatives without reference to\nor use of the Evaluation Material; provided, that in the case of (ii) or (iii) above, the source of such information was not, to your knowledge,\nbound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other\nperson with respect to such information at the time the information was disclosed to you.\n2. You and your Representatives will, and you will cause your Representatives to, (a) keep the Evaluation Material strictly confidential and\n(b) not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided, however,\nthat you may only privately disclose any of such information: (A) to your Representatives (i) who need to know such information for the sole\npurpose of advising you on your investment in the Company, (ii) who are informed by you of the confidential nature of such information and\nwho are directed by you to treat the Evaluation Material in a manner that is in strict compliance with the terms of this letter agreement, and\n(iii) who execute in writing a Representative Undertaking in the form attached hereto as Exhibit A; provided, further, that you will be responsible\nfor any violation of this letter agreement by your Representatives as if they were parties to this letter agreement; and (B) to the Company and the\nCompany Representatives. It is understood and agreed that no New Director shall disclose to you or your Representatives any legal or other\nadvice, including, but not limited to, any information that is marked attorney-client work product, attorney-client communication, privileged and\nconfidential or by other words purporting to indicate that the information is subject to the attorney-client privilege or attorney work-product\nprivilege, that may be included in the Evaluation Material with respect to which such disclosure may constitute waiver of the Company’s\nattorney-client privilege or attorney work-product privilege. Notwithstanding this Paragraph 2, your legal advisors at the law firm of Olshan\nFrome Wolosky LLP are not required to execute a Representative Undertaking, provided, however, that you covenant to instruct such counsel to\n(x) hold the Evaluation Material strictly confidential in accordance with the terms of this Agreement and (y) return the Evaluation Material to\nyou (or destroy it) at the conclusion of such law firm’s representation of you in connection with your investment in the Company.\n3. In addition, you agree that, without the prior written consent of the Company and except as otherwise disclosed in this letter agreement,\nyou will not disclose to any other person the fact that the Evaluation Material has been made available to you or any of your Representatives.\n4. Notwithstanding anything herein to the contrary, in the event that you or any of your Representatives are required by applicable law,\nregulation or legal or judicial process (including without limitation, by deposition, interrogatory, request for documents, subpoena, civil\ninvestigative demand or\n2\nsimilar process) to disclose any of the Evaluation Material, you will promptly notify (except where such notice would be legally prohibited) the\nCompany so that it may seek a protective order or other appropriate remedy (and if the Company seeks such an order, you will provide such\ncooperation as the Company shall reasonably request), at its sole cost and expense. Nothing herein shall be deemed to prevent you or your\nRepresentatives, as the case may be, from honoring a subpoena, legal process or other legal requirement that requires discovery, disclosure or\nproduction of the Evaluation Material if (a) after notifying and cooperating with the Company as required above, you produce or disclose only\nthat portion of the Evaluation Material which your outside legal counsel advises you is legally required to be so produced or disclosed and you\ninform the recipient of such Evaluation Material of the existence of this letter agreement and the confidential nature of such Evaluation Material;\nor (b) the Company consents in writing to having the Evaluation Material produced or disclosed pursuant to the subpoena, legal process or other\nlegal requirement. Unless legally required, in no event will you or any of your Representatives oppose action by the Company to obtain a\nprotective order or other relief to prevent the disclosure of the Evaluation Material or to obtain reliable assurance that confidential treatment will\nbe afforded to the Evaluation Material. For the avoidance of doubt, and notwithstanding anything contained herein to the contrary, disclosures\nmade pursuant hereto shall not be construed to permit disclosures made by you or your Representatives, publicly or privately, whether to the U.S.\nSecurities and Exchange Commission or its Staff, the Company’s shareholders or any other person or entity, in connection with or relating to any\nsolicitation made by you pursuant to Regulation 14A of the Securities Exchange Act of 1934, as amended, or any other state or Federal securities\nlaws applicable to any solicitations of the Company’s shareholders of proxies or other authorizations to vote the shares of a Company shareholder\nor otherwise take any action that any Company shareholder can take.\n5. It is understood and agreed that monetary damages may not be a sufficient remedy for any threatened or actual breach of this letter\nagreement, and that the Company is entitled to seek specific performance and injunctive or other equitable relief in connection with any such\nthreatened or actual breach of this letter agreement. Such remedy shall not be deemed to be the exclusive remedy for breach of this letter\nagreement, but shall be in addition to all other remedies available at law or equity to the Company.\n6. You undertake that you and your Representatives shall inform the Company immediately and in writing of any actual or suspected\nbreach of the obligations imposed under this letter agreement as you may be aware of and provide all possible assistance in order to minimize the\neffects of such breach.\n7. You acknowledge that (a) none of the Company or any Company Representatives makes any representation or warranty, express or\nimplied, as to the accuracy or completeness of any Evaluation Material, and (b) none of the Company or any Company Representatives shall\nhave any liability to you or to any of your Representatives directly or indirectly relating to or resulting from the use of the Evaluation Material or\nany errors therein or omissions therefrom.\n8. All Evaluation Material shall remain the property of the Company. Neither you nor any of your Representatives shall by virtue of any\ndisclosure of and/or your use of any Evaluation Material acquire any rights with respect thereto, all of which rights (including all intellectual\nproperty rights) shall remain exclusively with the Company.\n9. At any time, upon the request of the Company, you will promptly deliver to the Company or destroy all hard copies of the Evaluation\nMaterial and use commercially reasonable efforts to permanently erase or delete all electronic copies of the Evaluation Material in your or any of\nyour Representatives’ possession or control, whether the Evaluation Material is (i) furnished to you by or on\n3\nbehalf of the Company pursuant hereto or (ii) prepared by you, and no copy thereof in any form shall be retained, provided, however, that you\nand your Representatives shall be permitted to retain such Evaluation Material as is necessary to enable you and your Representatives to comply\nwith any applicable document retention polices or requirements under applicable law or regulation and to retain any computer records and\ncomputer files containing any Evaluation Material if required pursuant to any current automatic archiving and backup procedures; provided,\nhowever, that such retention shall be solely for legal, regulatory or archival purposes, as the case may be, and that any such retained Evaluation\nMaterial shall remain subject to the confidentiality and use restrictions of this letter agreement notwithstanding termination of this letter\nagreement. At the written request of the Company you shall provide the Company with a certificate of compliance with the foregoing sentence\nsigned by you or your chief compliance officer. Notwithstanding the return or erasure or deletion of Evaluation Material, you and your\nRepresentatives will continue to be bound by the obligations contained in this letter agreement.\n10. You hereby acknowledge that you are aware that the United States federal securities laws prohibit any person who has received from an\nissuer material, non-public information from purchasing or selling securities of such issuer or from communicating such information to any other\nperson under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities in reliance upon\nsuch information.\n11. You represent and warrant to the Company that (i) you have all requisite company power and authority to execute and deliver this letter\nagreement and to perform your obligations hereunder, (ii) this letter agreement has been duly authorized, executed and delivered by you, and is a\nvalid and binding obligation, enforceable against you in accordance with its terms, (iii) this letter agreement will not result in a violation of any\nterms or conditions of any agreements to which you are a party or by which you may otherwise be bound or of any law, rule, license, regulation,\njudgment, order or decree governing or affecting you, and (iv) your entry into this letter agreement does not require approval by any owners or\nholders of any equity or other interest in you (except as has already been obtained).\n12. The Company represents and warrants to you that (i) the Company has all requisite power and authority to execute and deliver this\nletter agreement and to perform its obligations hereunder, (ii) this letter agreement has been duly authorized, executed and delivered by the\nCompany, and is a valid and binding obligation, enforceable against the Company in accordance with its terms, (iii) this letter agreement will not\nresult in a violation of any terms or conditions of any agreements to which the Company is a party or by which the Company may otherwise be\nbound or of any law, rule, license, regulation, judgment, order or decree governing or affecting the Company, and (iv) the Company’s entry into\nthis letter agreement does not require approval by any owners or holders of any equity or other interest in the Company (except as has already\nbeen obtained).\n13. Any waiver by the Company of a breach of any provision of this letter agreement shall not operate as or be construed to be a waiver of\nany other breach of such provision or of any breach of any other provision of this letter agreement. The failure of the Company to insist upon\nstrict adherence to any term of this letter agreement on one or more occasions shall not be considered a waiver or deprive the Company of the\nright thereafter to insist upon strict adherence to that term or any other term of this letter agreement.\n14. You acknowledge and agree that the value of the Evaluation Material to the Company is unique and substantial, but may be impractical\nor difficult to assess in monetary terms. You further acknowledge and agree that in the event of an actual or threatened violation of this letter\nagreement, immediate and irreparable harm or injury may be caused for which money damages may not be an\n4\nadequate remedy. Accordingly, you acknowledge and agree that, in addition to any and all other remedies which may be available to the\nCompany at law or equity, the Company shall be entitled to an injunction or injunctions to prevent breaches of this letter agreement and to\nenforce specifically the terms and provisions of this letter agreement exclusively in the federal or state courts of the Commonwealth of\nPennsylvania located in the City of Pittsburgh. In the event that any action shall be brought in equity to enforce the provisions of this letter\nagreement, you shall not allege, and you hereby waive the defense, that there is an adequate remedy at law.\n15. This letter agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of\nPennsylvania without reference to the choice of laws or conflict of laws principles thereof or of any other jurisdiction to the extent that such\nprinciples would require or permit the application of the laws of another jurisdiction. Each of the parties irrevocably agrees that any legal action\nor proceeding with respect to this letter agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any\njudgment in respect of this letter agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors or\nassigns, whether in tort or contract or at law or in equity, shall be brought and determined exclusively in the federal or state courts of the\nCommonwealth of Pennsylvania located in the City of Pittsburgh. Each of the parties hereto hereby irrevocably submits with regard to any such\naction or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and\nagrees that it will not bring any action relating to this letter agreement in any court other than the aforesaid courts. Each of the parties hereto\nhereby irrevocably waives, and agrees not to assert in any action or proceeding with respect to this letter agreement, (a) any claim that it is not\npersonally subject to the jurisdiction of the above-named courts for any reason, (b) any claim that it or its property is exempt or immune from\njurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to\njudgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by applicable\nlegal requirements, any claim that (i) the suit, action or proceeding in such court is brought in an inconvenient forum, (ii) the venue of such suit,\naction or proceeding is improper or (iii) this letter agreement, or the subject matter hereof, may not be enforced in or by such courts.\n16. This letter agreement, including the exhibits hereto, and the Agreement contain the entire understanding of the parties with respect to\nthe subject matter of this letter agreement and supersedes all prior and contemporaneous agreements, understandings and representations,\nwhether oral or written, of the parties with respect to the subject matter hereof. There are no restrictions, agreements, promises, representations,\nwarranties, covenants or undertakings between the parties with respect to the subject matter of this letter agreement other than those expressly set\nforth herein or in the Agreement.\n17. Any notices, consents, determinations, waivers or other communications required or permitted to be given under the terms of this letter\nagreement must be in writing and will be deemed to have been delivered: (a) upon receipt, when delivered personally; (b) upon receipt, when\nsent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party);\n(c) upon confirmation of receipt, when sent by email (provided such confirmation is not automatically generated); or (d) one (1) business day\nafter deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The\naddresses and facsimile numbers for such communications shall be:\n5\nIf to the Company:\nL. B . Foster Company\n415 Holiday Drive, Suite 4\nPittsburgh, PA 15220\nFax No.: (412) 928-7891\nEmail: pguinee@lbfoster.com\nAttention: Patrick J. Guinee, Esq., Vice President, General Counsel & Corporate Secretary\nWith a copy to (which shall not constitute notice):\nMorgan, Lewis & Bockius LLP\n1111 Pennsylvania Avenue, NW\nWashington, DC 20004\nFax No.: 202-739-3001\nEmail: kgottfried@morganlewis.com\nAttention: Keith E. Gottfried, Esq.\nIf to Legion or any member thereof:\nLegion Partners Asset Management, LLC\n9401 Wilshire Blvd, Suite 705\nBeverly Hills, CA 90212\nFax No.: (424) 234-5123\nEmail: bvizi@legionpartners.com\nAttention: Bradley S. Vizi, Managing Director\nWith a copy (which shall not constitute notice) to:\nOlshan Frome Wolosky LLP\n65 East 55th Street\nNew York, New York 10022\nAttention: Steve Wolosky\nFacsimile: (212) 451-2222\nEmail: swolosky@olshanlaw.com\n18. If any term, provision, covenant or restriction of this letter agreement is held by a court of competent jurisdiction to be invalid, void or\nunenforceable, the remainder of the terms, provisions, covenants and restrictions of this letter agreement shall remain in full force and effect and\nshall in no way be affected, impaired or invalidated. It is hereby stipulated and declared to be the intention of the parties that the parties would\nhave executed the remaining terms, provisions, covenants and restrictions without including any of such which may be hereafter declared invalid,\nvoid or unenforceable. In addition, the parties agree to use commercially reasonable efforts to agree upon and substitute a valid and enforceable\nterm, provision, covenant or restriction for any of such that is held invalid, void or enforceable by a court of competent jurisdiction.\n19. This letter agreement may be executed in two or more counterparts, each of which shall be considered one and the same agreement and\nshall become effective when counterparts have been signed by each of the parties and delivered to the other party (including by means of\nelectronic delivery or facsimile).\n6\n20. This letter agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part, by you\nwithout the express written consent of the Company. This letter agreement, however, shall be binding on successors of the parties hereto.\n21. Legion shall cause any replacement director for a New Director appointed to the Board pursuant to the Board Composition Agreement\nwho is an Affiliate or Associate of any Investor or who is employed by or a member of, or directly or indirectly affiliated with, controlled by, or\nunder common control of any Investor, to execute a copy of this letter agreement. For purposes of this letter agreement, any reference to a\n“replacement director” shall be limited to only a replacement director appointed pursuant to the Board Composition Agreement who is an\nAffiliate or Associate of any Investor or is employed by or a member of, or directly or indirectly affiliated with, controlled by, or under common\ncontrol of any Investor. For the avoidance of doubt, no party to this letter agreement or the Board Composition Agreement may share Evaluation\nMaterial with any person appointed to the Board pursuant to the Board Composition Agreement who does not execute a copy of this letter\nagreement or other form of confidentiality agreement with and acceptable to the Company.\n22. The confidentiality obligations set forth in this letter agreement with respect to the confidentiality of information concerning or relating\nto the Company shall remain in full force and effect for as long as such information continues to be deemed Evaluation Material pursuant to the\nterms of this letter agreement; provided, that upon expiration of the Standstill Period, nothing herein shall preclude the Investor Group from\nseeking the election of director candidates or submitting proposals at any meeting of shareholders of the Company, including, without limitation,\nmaking public or private statements relating to the Company if those statements do not reference, include, or incorporate, directly or indirectly,\nthe Evaluation Material in violation of this letter agreement; and provided further that the foregoing provision shall not be deemed and is not\nintended to constitute a waiver of any rights or obligations under this letter agreement. Notwithstanding the foregoing, the Investors and the New\nDirector acknowledge that certain Evaluation Material may constitute trade secrets and other similar information which may be subject to\nstatutory protection under applicable law and nothing herein shall be deemed to waive or otherwise the limit rights of the Company or such\nEvaluation Material to any such protections.\n23. No licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied by this letter agreement.\n24. Each of the parties hereto acknowledges that it has been represented by counsel of its choice throughout all negotiations that have\npreceded the execution of this letter agreement, and that it has executed the same with the advice of said counsel. Each party and its counsel\ncooperated and participated in the drafting and preparation of this letter agreement and the documents referred to herein, and any and all drafts\nrelating thereto exchanged among the parties shall be deemed the work product of all of the parties and may not be construed against any party\nby reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in\nthis letter agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each of the parties hereto,\nand any controversy over interpretations of this letter agreement shall be decided without regards to events of drafting or preparation. The term\n“including” shall in all instances be deemed to mean “including without limitation.”\n[Signature Pages Follow]\n7\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon this\nletter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nL. B . FOSTER COMPANY\nBy: /s/ Robert P. Bauer\nName: Robert P. Bauer\nTitle: President & CEO\n[Signature Page to the Confidentiality Agreement]\nAccepted and agreed as of the date first written above:\nLEGION PARTNERS, L.P. I\nBy: Legion Partners Asset Management, LLC\nInvestment Advisor\nBy:\n/s/ Bradley S. Vizi\nName:\nBradley S. Vizi\nTitle:\nManaging Director\nLEGION PARTNERS, L.P. II\nBy: Legion Partners Asset Management, LLC\nInvestment Advisor\nBy:\n/s/ Bradley S. Vizi\nName:\nBradley S. Vizi\nTitle:\nManaging Director\nLEGION PARTNERS SPECIAL OPPORTUNITIES, L.P. II\nBy: Legion Partners Asset Management, LLC\nInvestment Advisor\nBy:\n/s/ Bradley S. Vizi\nName:\nBradley S. Vizi\nTitle:\nManaging Director\nLEGION PARTNERS, LLC\nBy: Legion Partners Holdings, LLC\nManaging Member\nBy:\n/s/ Bradley S. Vizi\nName:\nBradley S. Vizi\nTitle:\nManaging Director\n[Signature Page to the Confidentiality Agreement]\nLEGION PARTNERS ASSET MANAGEMENT, LLC\nBy:\n/s/ Bradley S. Vizi\nName: Bradley S. Vizi\nTitle: Managing Director\nLEGION PARTNERS HOLDINGS, LLC\nBy:\n/s/ Bradley S. Vizi\nName: Bradley S. Vizi\nTitle: Managing Director\n/s/ Christopher S. Kiper\nCHRISTOPHER S. KIPER\n/s/ Raymond White\nRAYMOND WHITE\n/s/ Bradley S. Vizi\nBRADLEY S. VIZI\n/s/ David A. Katz\nDAVID A. KATZ\n/s/ Justin Albert\nJUSTIN ALBERT\n[Signature Page to the Confidentiality Agreement]\nSCHEDULE A\nLEGION PARTNERS, L.P. I\nLEGION PARTNERS, L.P. II\nLEGION PARTNERS SPECIAL OPPORTUNITIES, L.P. II\nLEGION PARTNERS, LLC\nLEGION PARTNERS ASSET MANAGEMENT, LLC\nLEGION PARTNERS HOLDINGS, LLC\nBRADLEY S. VIZI\nCHRISTOPHER S. KIPER\nRAYMOND WHITE\nSchedule A\nSCHEDULE B\nLEGION PARTNERS, L.P. I\nLEGION PARTNERS, L.P. II\nLEGION PARTNERS SPECIAL OPPORTUNITIES, L.P. II\nLEGION PARTNERS, LLC\nLEGION PARTNERS ASSET MANAGEMENT, LLC\nLEGION PARTNERS HOLDINGS, LLC\nCHRISTOPHER S. KIPER\nRAYMOND WHITE\nBRADLEY S. VIZI\nDAVID A. KATZ\nJUSTIN ALBERT\nOLSHAN FROME WOLOSKY LLP\nEXHIBIT A\nREPRESENTATIVE UNDERTAKING\n(SEE ATTACHED)\nREPRESENTATIVE UNDERTAKING\nEach of [•] [•] (each an “Obligor”), makes this undertaking (“Undertaking”) to, and for the benefit of, L. B . Foster Company, a\nPennsylvania corporation (the “Company”), in consideration of certain confidential information of the Company that Obligor wishes to receive.\n1. Obligor certifies that [•]1 is providing confidential information (“Evaluation Material”) to Obligor under a confidentiality agreement,\ndated February [•], 2016, between Legion Partners, L.P. I, Legion Partners, L.P. II, Legion Partners Special Opportunities, L.P. II,\nLegion Partners, LLC, Legion Partners Asset Management, LLC, Legion Partners Holdings, LLC, Christopher S. Kiper, Raymond\nWhite, Bradley S. Vizi, David A. Katz, Justin Albert (collectively, the Investors”) and the Company (“Confidentiality Agreement”)\nand (ii) Obligor has read the Confidentiality Agreement, understands the terms and conditions of the Confidentiality Agreement and\nagrees to be fully bound by the Confidentiality Agreement. Capitalized terms not otherwise defined in this Undertaking have the\nmeaning ascribed to them in the Confidentiality Agreement.\n2. Obligor agrees that, upon receipt of the Evaluation Material, if not already restricted, it shall automatically become restricted from\ntaking any of the actions that the Investors are restricted from taking with respect to the Company pursuant to the terms of Section 3\nof the Agreement, dated February [•], 2016 (the “Board Composition Agreement”), by and between the Company and the Investors\nwhich agreement provides for, among other things, the appointment of Bradley S. Vizi to the Company’s Board of Directors and\nObligor hereby undertakes to comply with, and be subject to, the terms of Section 3 of the Board Composition Agreement as though\nit was a signatory thereto.\n3. If Obligor is required by law, regulation, regulatory authority, judicial or governmental order or in connection with any interrogatory,\nsubpoena, civil investigatory demand or any similar process relating to any legal proceeding, investigation, hearing or otherwise to\ndisclose in any manner any Information, Obligor covenants to provide the Company with prompt notice (to the extent legally\npermissible) in advance of such disclosure so that the Company may seek, at the Company’s sole expense, a protective order or other\nappropriate remedy, waive compliance with this Paragraph 2 or both. In the event that no protective order or other remedy is\nobtained, or if the Company waives compliance with this Paragraph 2, Obligor covenants to (a) furnish only such Information as\nObligor is advised is legally required and (b) exercise commercially reasonable efforts to obtain assurance that confidential treatment\nwill be accorded to any Information that is compelled to be disclosed.\n4. Obligor (a) consents to submit itself to personal jurisdiction and venue in any action brought in any federal or state court of the\nCommonwealth of Pennsylvania located in the City of Pittsburgh (each, a “Court”) in connection with any matter arising to\n1\nApplicable Legion Entity to be inserted\nenforce any provision of this Undertaking or the Confidentiality Agreement, (b) agrees that it will not attempt to deny or defeat such\npersonal jurisdiction by motion or other request for leave from any Court, (c) agrees that it will not bring any action relating to this\nUndertaking or the Confidentiality Agreement in any court or venue other than a Court, (d) agrees that service of process for\npurposes of proceedings to enforce this Undertaking or the Confidentiality Agreement is effective and proper if delivered by\nregistered or certified mail, and (e) agrees that any breach of this Undertaking or the Confidentiality Agreement may be punishable\nby such relief as deemed appropriate by any Court.\n5. This Undertaking may be modified or waived only by a separate writing executed by Obligor and the Company that expressly\nmodifies or waives this Undertaking. No failure or delay in exercising any right, power or privilege under this Undertaking will\noperate as a waiver of any such right, power or privilege, and no single or partial exercise of any right, power or privilege under this\nUndertaking will preclude any other or further exercise of any such right, power or privilege.\n6. Delivery of an executed signature page of this Undertaking by telecopy or other electronic imaging means will be effective as\ndelivery of a manually executed signature page of this Undertaking.\n7. This Undertaking will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without\nregard to its choice of laws or conflict of laws principles or of any other jurisdiction to the extent that such principles would require\nor permit the application of the laws of another jurisdiction.\n8. The terms of this Undertaking and Obligor ’s obligations hereunder shall expire two (2) years from the date of the Confidentiality\nAgreement.\n[Signature page on next page]
+154d30f607c74aa8a5f582bf84f7a5e2.pdf	effective_date jurisdiction party term	EX-10.15 7 dex1015.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (PETER H. KESSER)\nExhibit 10.15\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Competition Agreement (this “Agreement”) is entered into as of January 1, 2008, by and between Verso Paper\nHoldings LLC, a Delaware limited liability company (“Verso Paper”), and Peter H. Kesser (“Employee”), to allow Employee to have access to\ncertain valuable competitive information and business relationships of Verso Paper while also providing protection for such information and\nrelationships.\nWHEREAS, Verso Paper is willing to employ Employee in the position of Vice President, General Counsel and Secretary, and Employee is\nwilling to accept such employment upon the terms and conditions set forth herein; and,\nWHEREAS, Verso Paper is willing to provide Employee with certain benefits, as set forth herein, even after the employment relationship with\nEmployee has ended in order to protect its valuable competitive information and business relationships; and\nWHEREAS, after having ample opportunity to discuss, negotiate, and revise as necessary, the parties are willing to enter into this Agreement;\nNOW, THEREFORE, the parties hereto agree as follows:\n1. Definitions. As used in this Agreement, the terms:\n(a) “Protected Information” shall mean all information, documents or materials, owned, developed or possessed by Verso Paper or any\nemployee while in the employ of Verso Paper, whether in tangible or intangible form, which (i) Verso Paper takes reasonable measures to\nmaintain in secrecy, and (ii) pertains in any manner to Verso Paper’s business, including but not limited to Research and Development (as\ndefined below); customers or prospective customers, targeted national accounts, or strategies or data for identifying and satisfying their needs;\npresent or prospective business relationships; present, short term, or long term strategic plans; acquisition candidates; plans for corporate\nrestructuring; products under consideration or development; cost, margin or profit information; data from which any of the foregoing types of\ninformation could be derived; human resources (including compensation information and internal evaluations of the performance, capability\nand potential of Verso Paper employees); business methods, data bases and computer programs. The fact that individual elements of the\ninformation that constitutes Protected Information may be generally known does not prevent an integrated compilation of information, whether\nor not reduced to writing, from being Protected Information if that integrated whole is not generally known.\n(b) “Research and Development” shall include, but not be limited to (i) all short term and long term basic, applied and developmental\nresearch and technical assistance and specialized research support of customers or active prospects, targeted national accounts, of Verso Paper\noperating divisions; (ii) information relating to manufacturing and converting processes, methods, techniques and equipment and the\nimprovements and innovations relating to same; quality control procedures and equipment; identification, selection, generation and\npropagation of tree species having improved characteristics; forest resource management; innovation and improvement to manufacturing and\nconverting processes such as shipping, pulping bleaching chemical recovery papermaking, coating and calendaring processes and in equipment\nfor use in such processes; reduction and remediation of environmental discharges; minimization or elimination of solid and liquid waste; use\nand optimization of raw materials in manufacturing processes; recycling and manufacture paper products; recycling of other paper or pulp\nproducts; energy conservation; computer software and application of computer controls to manufacturing\nand quality control operations and to inventory control; radio frequency identification and its use in paper and packaging products; and product\nprocess improvement development or evaluation; and (iii) information about methods, techniques, products equipment, and processes which\nVerso Paper has learned do not work or do not provide beneficial results (“negative know-how”) as well as those which do work which provide\nbeneficial results.\n(c) “Unauthorized” shall mean (i) in contravention of Verso Paper’s policies or procedures; (ii) otherwise inconsistent with Verso Paper’s\nmeasures to protect its interests in the Protected Information; (iii) in contravention of any lawful instruction or directive, either written or oral,\nof an Verso Paper employee empowered to issue such instruction or directive; (iv) in contravention of any duty existing under law or contract;\nor (v) to the detriment of Verso Paper.\n2. Confidentiality.\n(a) Employee acknowledges and agrees that by reason of employment with Verso Paper as a senior level executive in the position of Vice\nPresident, General Counsel and Secretary, Employee has been and will be entrusted with Protected Information and may develop Protected\nInformation, that such information is valuable and useful to Verso Paper, that it would also be valuable and useful to competitors and others\nwho do not know it and that such information constitutes confidential and proprietary trade secrets of Verso Paper. While an employee or\nconsultant of Verso Paper, or at any time thereafter, regardless of the reasons for leaving Verso Paper, Employee agrees not to use or disclose,\ndirectly or indirectly, any Protected Information in an Unauthorized manner or for any Unauthorized purpose unless such information shall\nhave become generally known in the relevant industry or independently developed with no assistance from Employee. Further, promptly upon\ntermination, for any reason, of Employee’s employment with Verso Paper or upon the request of Verso Paper Employee agrees to deliver to\nVerso Paper all property and materials and copies thereof within Employee’s possession or control which belong to Verso Paper or which\ncontain Protected Information and to permanently delete upon Verso Paper’s request all Protected Information from any computers or other\nelectronic storage media Employee owns or uses.\n(b) While an employee of Verso Paper and after termination of Employee’s employment with Verso Paper for any reason, Employee\nagrees not to take any actions which would constitute or facilitate the Unauthorized use or disclosure of Protected Information, including\ntransmitting or posting such Protected Information on the internet, anonymously or otherwise. Employee further agrees to take all reasonable\nmeasures to prevent the Unauthorized use and disclosure of Protected Information and to prevent Unauthorized persons or entities from\nobtaining or using Protected Information.\n(c) If Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, investigation, demand, order\nor similar process) to disclose any Protected Information, then before any such disclosure may be made, Employee shall immediately notify\nVerso Paper thereof and, at Verso Paper’s expense, shall consult with Verso Paper on the advisability of taking steps to resist or narrow such\nrequest and cooperate with Verso Paper in any attempt to obtain a protective order or other appropriate remedy or assurance that the Protected\nInformation will be afforded confidential treatment. If such protective order or other appropriate remedy is not obtained, Employee shall\nfurnish only that portion of the Protected Information that it is advised by legal counsel is legally required to be furnished.\n2\n3. Non-Competition.\n(a) Employee acknowledges and agrees that the business of Verso Paper and its customers is worldwide in scope, Verso Paper ’s\ncompetitors and customers are located throughout the world, and Verso Paper’s strategic planning and Research and Development activities\nhave application throughout the world and are for the benefit of customers and Verso Paper’s business throughout the world, and therefore, the\nrestrictions on Employee’s competition after employment as described below apply to anywhere in the world in which Verso Paper or its\nsubsidiaries are doing business. Employee acknowledges that any such competition within that geographical scope will irreparably injure\nVerso Paper. Employee acknowledges and agrees that, for that reason, the prohibitions on competition described below are reasonably tailored\nto protect Verso Paper.\n(b) While an employee or consultant of Verso Paper, Employee agrees not to compete in any manner, either directly or indirectly and\nwhether for compensation or otherwise, with Verso Paper or to assist any other person or entity to compete with Verso Paper in the business of\ncoated and supercalendared paper products or the operation of coated and supercalendared paper mills anywhere in the world.\n(c) After the termination of Employee’s employment with Verso Paper for any reason, Employee agrees that for a period of twelve\n(12) months (the “Non-Compete Period”) following such termination Employee will not compete with Verso Paper anywhere in the world in\nwhich Verso Paper or its subsidiaries are doing business:\n(i) by producing, developing, selling or marketing, or assisting others to produce, develop, sell or market in the business of coated\nand supercalendared paper products or the operation of coated and supercalendared paper mills;\n(ii) by engaging in any sales, marketing, Research and Development or managerial duties (including, without limitation, financial,\nhuman resources, strategic planning, or operation duties) for, whether as an employee, consultant, or otherwise, any entity which\nproduces, develops, sells or markets in the business of coated and supercalendared paper products or the operation of coated and\nsupercalendared paper mills;\n(iii) by owning, managing, operating, controlling or consulting for any entity which produces, develops, sells or markets in the\nbusiness of coated and supercalendared paper products or the operation of coated and supercalendared paper mills, provided that this\nSection 3(c)(iii) shall not prohibit Employee from being a passive owner of not more than two percent (2%) of the outstanding stock of\nany class of a corporation that is publicly traded, so long as Employee has no active participation in the business of such corporation; or\n(iv) by soliciting the business of any actual or active prospective customers, or targeted national accounts of Verso Paper for any\nproduct, process or service which is competitive with the products, processes, or services of Verso Paper, namely any products, processes\nor services of the business of coated and supercalendared paper products or the operation of coated and supercalendared paper mills,\nwhether existing or contemplated for the future, on which Employee has worked, or concerning which Employee has in any manner\nacquired knowledge or Protected Information about, during the twenty four (24) months preceding termination of Employee’s\nemployment.\nIt shall not be a violation of this provision for Employee to accept employment with a non-competitive division or business unit of a multi-\ndivisional company some of whose divisions or business units are competitors of Verso Paper, so long as Employee does not engage in, oversee,\nprovide input or\n3\ninformation regarding, or participate in any manner in the activities described in this paragraph as they relate to the division or business unit which is\na competitor of Verso Paper. Employee shall not assist others in engaging in activities which Employee is not permitted to take.\n4. Non-Solicitation/Non-Hire. During the term of Employee’s employment at Verso Paper and for twelve (12) months following the\ntermination, for any reason, of employment, Employee agrees that Employee will not, either on Employee’s own behalf or on behalf of any other\nperson or entity, directly or indirectly, hire, solicit, retain or encourage to leave the employ of Verso Paper (or assist any other person or entity in\nhiring, soliciting, retaining or encouraging) any person who is then or was within six (6) months of the date of such hiring an employee of Verso\nPaper.\n5. Tolling Period of Restrictions. Employee agrees that the periods of non-competition and non-solicitation/non-hire set forth in Sections 3\nand 4, respectively, shall be extended by the period of violation if Employee is found to be in violation of those provisions.\n6. Post-Termination Payments and Benefits. Upon the termination of Employee’s employment with Verso Paper for any reason, in\nconsideration of Employee’s compliance with all his obligations under this Agreement (including, without limitation, his obligations under Sections\n2, 3(c) and 4), and provided that Employee complies with all such obligations, Verso Paper shall provide post-termination payments and benefits to\nEmployee as follows:\n(a) During the Non-Compete Period, if Employee is unable, despite diligent search, to obtain employment consistent with Employee’s\nexperience and education, Employee shall so notify Verso Paper in writing, describing in reasonable detail the efforts Employee has made to\nsecure such employment that does not conflict with Employee’s non-compete obligations. Upon receipt and reasonable verification of the\ninformation contained in such notice, Verso Paper shall make monthly payments to Employee in an amount equal to Employee’s monthly base\nsalary in effect in the month immediately preceding the termination of his employment, less applicable tax and other withholdings, for each\nmonth (or prorated for periods less than a month) of such unemployment during the Non-Compete Period. Before the close of each month for\nwhich Employee seeks such payment, Employee shall advise Verso Paper in writing of Employee’s efforts to obtain non-competitive\nemployment and shall certify that although Employee diligently sought such employment, Employee was unable to obtain it.\n(b) Verso Paper shall pay to Employee an amount equal to the sum of the incentive awards, if any, payable to Employee under the Verso\nPaper Incentive Plan (the “Incentive Plan”) for (i) the year immediately preceding the year in which termination of employment occurred, to\nthe extent not previously paid to Employee, and (ii) the year in which such termination occurred, prorated for the period of the year in which\nEmployee was employed by Verso Paper, in each case less applicable tax and other withholdings (collectively, the “Incentive Payment”). The\ndetermination of the Incentive Payment shall be made by Verso Paper, in its sole and absolute discretion, and, with respect to the year in which\ntermination occurred, shall be based on (i) Employee’s monthly base salary in effect in the month immediately preceding the termination of his\nemployment and (ii) the assumptions relative to the Incentive Plan that (A) Employee was employed by Verso Paper during the entire year and\nis otherwise eligible and qualified to receive the Incentive Payment, (B) Employee’s monthly base salary remained in effect and was not\nchanged during the remainder of the year, and (C) Employee achieved all of his individual performance measures, if any, during the year.\nVerso Paper shall make the Incentive Payment to Employee at the same time that it makes other incentive payments under the Incentive Plan to\nthe employees of Verso Paper.\n(c) Verso Paper shall (i) continue Employee’s coverage of the employment-related benefits described in Exhibit A for up to twenty-four\n(24) months following Employee’s termination of\n4\nemployment with Verso Paper, in accordance with and subject to the terms and conditions set forth in the attached Exhibit A, and\n(ii) contribute on Employee’s behalf an amount equal to his Lost Retirement Benefits (as defined below) to the Verso Paper Deferred\nCompensation Plan. As used in this Agreement, the term “Lost Retirement Benefits” shall mean the projected value of employer contributions\nunder the Verso Paper Retirement Savings Plan, the Verso Paper Deferred Compensation Plan, and the Verso Paper Supplemental Salaried\nRetirement Savings Plan (collectively, the “Plans”) that Employee would have received had he remained actively employed with Verso Paper\nduring the twenty-four (24) months following Employee’s termination of employment with Verso Paper. The determination of the Lost\nRetirement Benefits shall be made by Verso Paper, in its sole and absolute discretion, and shall be based on (i) Employee’s monthly base salary\nin effect in the month immediately preceding the termination of his employment and (ii) the assumption that Employee’s salary deferrals\nduring such twenty-four (24) month period are in such amounts as would produce the maximum possible matching contribution by Verso\nPaper under the Plans. Verso Paper shall contribute on Employee’s behalf the value of his Lost Retirement Benefits to the Verso Paper\nDeferred Compensation Plan in a lump sum payment as soon as reasonably practicable after the determination of the Lost Retirement Benefits\nis made.\n7. Duty to Show Agreement to Prospective Employer. During Employee’s employment with Verso Paper and for twelve (12) months\nthereafter, Employee shall, prior to accepting other employment, provide a copy of this Agreement to any recruiter who assists Employee in locating\nemployment other than with Verso Paper and to any prospective employer with which Employee discusses potential employment.\n8. Representations, Warranties and Acknowledgements. In addition to the representations, warranties and obligations set forth throughout\nthis Agreement, Employee acknowledges that (a) Protected Information is commercially and competitively valuable to Verso Paper and critical to its\nsuccess; (b) the Unauthorized use or disclosure of Protected Information or the violation of the covenants set forth in Sections 2, 3, or 4 would cause\nirreparable harm to Verso Paper; (c) by this Agreement, Verso Paper is taking reasonable steps to protect its legitimate interests in its Protected\nInformation; (d) Employee has developed, or will develop legally unique relationships with customers of Verso Paper; and (e) nothing herein shall\nprohibit Verso Paper from pursuing any remedies whether in law or equity, available to Verso Paper for breach or threatened breach of this\nAgreement. Employee further acknowledges and agrees that as a senior executive of Verso Paper Employee performs unique and valuable services\nto Verso Paper of an intellectual character and that Employee’s services will be difficult for Verso Paper to replace. Employee further acknowledges\nand agrees that Verso Paper is providing Employee with significant consideration in this Agreement for entering into the Agreement and that Verso\nPaper’s remedies for any breach of this Agreement are in addition to and not in place of any other remedies Verso Paper may have at law or equity or\nunder any other agreements.\n9. Section 409A of the Code. The parties hereto acknowledge and agree that, to the extent applicable, this Agreement shall be interpreted in\naccordance with, and incorporate the terms and conditions required by, Section 409A of the Internal Revenue Code of 1986, as amended, and the\nDepartment of Treasury Regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other\nguidance that may be issued after the date hereof (“Section 409A”). Notwithstanding any provision of this Agreement to the contrary, in the event\nthat Verso Paper determines that any amounts payable hereunder will be immediately taxable to Employee under Section 409A, Verso Paper and\nEmployee shall cooperate in good faith to (a) adopt such amendments to this Agreement and appropriate policies and procedures, including\namendments and policies with retroactive effect, that they mutually determine to be necessary or appropriate to preserve the intended tax treatment\nof the benefits provided by this Agreement, to preserve the economic benefits of this Agreement, and to avoid less favorable accounting or tax\nconsequences for Verso Paper and/or (b) take such other actions as mutually determined to be necessary or appropriate to exempt any amounts\npayable hereunder from\n5\nSection 409A or to comply with the requirements of Section 409A and thereby avoid the application of penalty taxes thereunder. In addition, and\nnotwithstanding any provision of this Agreement to the contrary, to the extent subject to Section 409A, payment to a “specified employee” as\ndefined in Section 409A(2)(B)(i) shall not be made before the date which is six (6) months after the date of termination of employment.\n10. General.\n(a) Employee acknowledges and agrees that the parties have attempted to limit Employee’s right to compete only to the extent necessary\nto protect Verso Paper from unfair competition and protect the legitimate interests of Verso Paper. If any provision or clause of this Agreement\nor portion thereof shall be held by any court of competent jurisdiction to be illegal, void or unenforceable in such jurisdiction, the remainder of\nsuch provisions shall not thereby be affected and shall be given full effect, without regard to the invalid portion. It is the intention of the parties\nand Employee agrees, that if any court construes any provision or clause of this Agreement or any portion thereof to be illegal, void or\nunenforceable because of the duration of such provision or the area or matter covered thereby, such court shall reduce the duration, area or\nmatter of such provision and in its reduced form, such provision shall then be enforceable and shall be enforced.\n(b) Employee acknowledges that neither this Agreement nor any provision hereof can be modified, abrogated or waived except in a\nwritten document signed by the Vice President of Human Resource or the President and Chief Executive Officer of Verso Paper, or in the event\nof the absence of either of these executives or the vacancy of either of these positions, such other officer of Verso Paper as Verso Paper’s Board\nof Directors shall designate in writing.\n(c) This Agreement shall be governed by and in accordance with the laws and public policies of the State of Delaware.\n(d) Employee hereby consents to the jurisdiction of and agrees that any claim arising out of or relating to this Agreement may be brought\nin the courts of the State of Delaware.\n(e) This Agreement and any rights thereunder may be assigned by Verso Paper and if so assigned shall operate to protect the Protected\nInformation and relationships of Verso Paper as well as such information and relationships of the assignee.\n(f) Should either party to this Agreement breach any of the terms of this Agreement, that party shall pay to the non-defaulting party all of\nthe non-defaulting party’s costs and expenses, including attorney’s and experts’ fees in enforcing the provisions of the Agreement as to which a\nbreach is found.\n(g) Employee agrees that Verso Paper’s determination not to enforce this or similar agreements as to specific violations shall not operate\nas a waiver or release of Employee’s obligations under this Agreement.\n(h) Employee understands that Employee owes fiduciary and common law duties to Verso Paper in addition to the covenants set forth\nabove prohibiting the misuse or disclosure of trade secrets or confidential information and the unlawful interference with Verso Paper’s\nbusiness and customer relationships.\n(i) Employee acknowledges and agrees that Verso Paper has advised Employee that Employee may consult with an independent attorney\nbefore signing this Agreement.\n6\n(j) This Agreement sets forth the entire agreement of the parties, and fully supersedes any and all prior agreements or understandings\nbetween the parties pertaining to the subject matter hereof.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered effective as of the date first set forth\nabove.\nVERSO PAPER HOLDINGS LLC\nBy: /s/ Michael A. Jackson\nMichael A. Jackson\nPresident and Chief Executive Officer\n/s/ Peter H. Kesser\nPeter H. Kesser\n7\nEXHIBIT A\nEMPLOYMENT-RELATED BENEFITS\nBenefits:\n•\nCoverage under Verso Paper Medical and Dental Plan for Employee and his or her eligible dependents for up to twenty-four (24) months.\n•\nReimbursement for (i) all costs to convert to an individual policy the basic life insurance coverage on Employee’s life only, in such\namount as in effect at termination of employment, and (ii) the premiums necessary to continue such converted coverage for up to twenty-\nfour (24) months. Reimbursement shall be conditioned on Employee providing Verso Paper with satisfactory evidence that the\nconversion costs and premiums have been incurred.\nAdditional Terms and Conditions:\n•\nVerso Paper shall pay Employee an amount equal to the aggregate of any and all federal, state and local income tax imposed on\nEmployee resulting from the benefits set forth above, as determined by Verso Paper in its sole and absolute discretion.\n•\nBenefit coverage/reimbursement is subject to early termination upon Employee’s re-employment with comparable benefits available, as\ndetermined by Verso Paper in its sole and absolute discretion.\n•\nVerso Paper reserves the right to modify, revoke, suspend, terminate or change any or all of its benefit plans, programs or policies, in\nwhole or in part, at any time and from time to time, and with or without notice, provided that any such change or modification is\napplicable to all similarly situated employees of Verso Paper.\n8	EX-10.15 7 dex1015.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (PETER H. KESSER)\nExhibit 10.15\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Competition Agreement (this “Agreement”) is entered into as of January 1, 2008, by and between Verso Paper\nHoldings LLC, a Delaware limited liability company (“Verso Paper”), and Peter H. Kesser (“Employee”), to allow Employee to have access to\ncertain valuable competitive information and business relationships of Verso Paper while also providing protection for such information and\nrelationships.\nWHEREAS, Verso Paper is willing to employ Employee in the position of Vice President, General Counsel and Secretary, and Employee is\nwilling to accept such employment upon the terms and conditions set forth herein; and,\nWHEREAS, Verso Paper is willing to provide Employee with certain benefits, as set forth herein, even after the employment relationship with\nEmployee has ended in order to protect its valuable competitive information and business relationships; and\nWHEREAS, after having ample opportunity to discuss, negotiate, and revise as necessary, the parties are willing to enter into this Agreement;\nNOW, THEREFORE, the parties hereto agree as follows:\n1. Definitions. As used in this Agreement, the terms:\n(a) “Protected Information” shall mean all information, documents or materials, owned, developed or possessed by Verso Paper or any\nemployee while in the employ of Verso Paper, whether in tangible or intangible form, which (i) Verso Paper takes reasonable measures to\nmaintain in secrecy, and (ii) pertains in any manner to Verso Paper’s business, including but not limited to Research and Development (as\ndefined below); customers or prospective customers, targeted national accounts, or strategies or data for identifying and satisfying their needs;\npresent or prospective business relationships; present, short term, or long term strategic plans; acquisition candidates; plans for corporate\nrestructuring; products under consideration or development; cost, margin or profit information; data from which any of the foregoing types of\ninformation could be derived; human resources (including compensation information and internal evaluations of the performance, capability\nand potential of Verso Paper employees); business methods, data bases and computer programs. The fact that individual elements of the\ninformation that constitutes Protected Information may be generally known does not prevent an integrated compilation of information, whether\nor not reduced to writing, from being Protected Information if that integrated whole is not generally known.\n(b) “Research and Development” shall include, but not be limited to (i) all short term and long term basic, applied and developmental\nresearch and technical assistance and specialized research support of customers or active prospects, targeted national accounts, of Verso Paper\noperating divisions; (ii) information relating to manufacturing and converting processes, methods, techniques and equipment and the\nimprovements and innovations relating to same; quality control procedures and equipment; identification, selection, generation and\npropagation of tree species having improved characteristics; forest resource management; innovation and improvement to manufacturing and\nconverting processes such as shipping, pulping bleaching chemical recovery papermaking, coating and calendaring processes and in equipment\nfor use in such processes; reduction and remediation of environmental discharges; minimization or elimination of solid and liquid waste; use\nand optimization of raw materials in manufacturing processes; recycling and manufacture paper products; recycling of other paper or pulp\nproducts; energy conservation; computer software and application of computer controls to manufacturing\nand quality control operations and to inventory control; radio frequency identification and its use in paper and packaging products; and product\nprocess improvement development or evaluation; and (iii) information about methods, techniques, products equipment, and processes which\nVerso Paper has learned do not work or do not provide beneficial results (“negative know-how”) as well as those which do work which provide\nbeneficial results.\n(c) “Unauthorized” shall mean (i) in contravention of Verso Paper’s policies or procedures; (ii) otherwise inconsistent with Verso Paper’s\nmeasures to protect its interests in the Protected Information; (iii) in contravention of any lawful instruction or directive, either written or oral,\nof an Verso Paper employee empowered to issue such instruction or directive; (iv) in contravention of any duty existing under law or contract;\nor (v) to the detriment of Verso Paper.\n2. Confidentiality.\n(a) Employee acknowledges and agrees that by reason of employment with Verso Paper as a senior level executive in the position of Vice\nPresident, General Counsel and Secretary, Employee has been and will be entrusted with Protected Information and may develop Protected\nInformation, that such information is valuable and useful to Verso Paper, that it would also be valuable and useful to competitors and others\nwho do not know it and that such information constitutes confidential and proprietary trade secrets of Verso Paper. While an employee or\nconsultant of Verso Paper, or at any time thereafter, regardless of the reasons for leaving Verso Paper, Employee agrees not to use or disclose,\ndirectly or indirectly, any Protected Information in an Unauthorized manner or for any Unauthorized purpose unless such information shall\nhave become generally known in the relevant industry or independently developed with no assistance from Employee. Further, promptly upon\ntermination, for any reason, of Employee’s employment with Verso Paper or upon the request of Verso Paper Employee agrees to deliver to\nVerso Paper all property and materials and copies thereof within Employee’s possession or control which belong to Verso Paper or which\ncontain Protected Information and to permanently delete upon Verso Paper’s request all Protected Information from any computers or other\nelectronic storage media Employee owns or uses.\n(b) While an employee of Verso Paper and after termination of Employee’s employment with Verso Paper for any reason, Employee\nagrees not to take any actions which would constitute or facilitate the Unauthorized use or disclosure of Protected Information, including\ntransmitting or posting such Protected Information on the internet, anonymously or otherwise. Employee further agrees to take all reasonable\nmeasures to prevent the Unauthorized use and disclosure of Protected Information and to prevent Unauthorized persons or entities from\nobtaining or using Protected Information.\n(c) If Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, investigation, demand, order\nor similar process) to disclose any Protected Information, then before any such disclosure may be made, Employee shall immediately notify\nVerso Paper thereof and, at Verso Paper’s expense, shall consult with Verso Paper on the advisability of taking steps to resist or narrow such\nrequest and cooperate with Verso Paper in any attempt to obtain a protective order or other appropriate remedy or assurance that the Protected\nInformation will be afforded confidential treatment. If such protective order or other appropriate remedy is not obtained, Employee shall\nfurnish only that portion of the Protected Information that it is advised by legal counsel is legally required to be furnished.\n2\n3. Non-Competition.\n(a) Employee acknowledges and agrees that the business of Verso Paper and its customers is worldwide in scope, Verso Paper’s\ncompetitors and customers are located throughout the world, and Verso Paper’s strategic planning and Research and Development activities\nhave application throughout the world and are for the benefit of customers and Verso Paper’s business throughout the world, and therefore, the\nrestrictions on Employee’s competition after employment as described below apply to anywhere in the world in which Verso Paper or its\nsubsidiaries are doing business. Employee acknowledges that any such competition within that geographical scope will irreparably injure\nVerso Paper. Employee acknowledges and agrees that, for that reason, the prohibitions on competition described below are reasonably tailored\nto protect Verso Paper.\n(b) While an employee or consultant of Verso Paper, Employee agrees not to compete in any manner, either directly or indirectly and\nwhether for compensation or otherwise, with Verso Paper or to assist any other person or entity to compete with Verso Paper in the business of\ncoated and supercalendared paper products or the operation of coated and supercalendared paper mills anywhere in the world.\n(c) After the termination of Employee’s employment with Verso Paper for any reason, Employee agrees that for a period of twelve\n(12) months (the “Non-Compete Period”) following such termination Employee will not compete with Verso Paper anywhere in the world in\nwhich Verso Paper or its subsidiaries are doing business:\n(i) by producing, developing, selling or marketing, or assisting others to produce, develop, sell or market in the business of coated\nand supercalendared paper products or the operation of coated and supercalendared paper mills;\n(ii) by engaging in any sales, marketing, Research and Development or managerial duties (including, without limitation, financial,\nhuman resources, strategic planning, or operation duties) for, whether as an employee, consultant, or otherwise, any entity which\nproduces, develops, sells or markets in the business of coated and supercalendared paper products or the operation of coated and\nsupercalendared paper mills;\n(iii) by owning, managing, operating, controlling or consulting for any entity which produces, develops, sells or markets in the\nbusiness of coated and supercalendared paper products or the operation of coated and supercalendared paper mills, provided that this\nSection 3(c)(iii) shall not prohibit Employee from being a passive owner of not more than two percent (2%) of the outstanding stock of\nany class of a corporation that is publicly traded, so long as Employee has no active participation in the business of such corporation; or\n(iv) by soliciting the business of any actual or active prospective customers, or targeted national accounts of Verso Paper for any\nproduct, process or service which is competitive with the products, processes, or services of Verso Paper, namely any products, processes\nor services of the business of coated and supercalendared paper products or the operation of coated and supercalendared paper mills,\nwhether existing or contemplated for the future, on which Employee has worked, or concerning which Employee has in any manner\nacquired knowledge or Protected Information about, during the twenty four (24) months preceding termination of Employee’s\nemployment.\nIt shall not be a violation of this provision for Employee to accept employment with a non-competitive division or business unit of a multi-\ndivisional company some of whose divisions or business units are competitors of Verso Paper, so long as Employee does not engage in, oversee,\nprovide input or\ninformation regarding, or participate in any manner in the activities described in this paragraph as they relate to the division or business unit which is\na competitor of Verso Paper. Employee shall not assist others in engaging in activities which Employee is not permitted to take.\n4. Non-Solicitation/Non-Hire. During the term of Employee’s employment at Verso Paper and for twelve (12) months following the\ntermination, for any reason, of employment, Employee agrees that Employee will not, either on Employee’s own behalf or on behalf of any other\nperson or entity, directly or indirectly, hire, solicit, retain or encourage to leave the employ of Verso Paper (or assist any other person or entity in\nhiring, soliciting, retaining or encouraging) any person who is then or was within six (6) months of the date of such hiring an employee of Verso\nPaper.\n5. Tolling Period of Restrictions. Employee agrees that the periods of non-competition and non-solicitation/non-hire set forth in Sections 3\nand 4, respectively, shall be extended by the period of violation if Employee is found to be in violation of those provisions.\n6. Post-Termination Payments and Benefits. Upon the termination of Employee’s employment with Verso Paper for any reason, in\nconsideration of Employee’s compliance with all his obligations under this Agreement (including, without limitation, his obligations under Sections\n2, 3(c) and 4), and provided that Employee complies with all such obligations, Verso Paper shall provide post-termination payments and benefits to\nEmployee as follows:\n(a) During the Non-Compete Period, if Employee is unable, despite diligent search, to obtain employment consistent with Employee’s\nexperience and education, Employee shall so notify Verso Paper in writing, describing in reasonable detail the efforts Employee has made to\nsecure such employment that does not conflict with Employee’s non-compete obligations. Upon receipt and reasonable verification of the\ninformation contained in such notice, Verso Paper shall make monthly payments to Employee in an amount equal to Employee’s monthly base\nsalary in effect in the month immediately preceding the termination of his employment, less applicable tax and other withholdings, for each\nmonth (or prorated for periods less than a month) of such unemployment during the Non-Compete Period. Before the close of each month for\nwhich Employee seeks such payment, Employee shall advise Verso Paper in writing of Employee’s efforts to obtain non-competitive\nemployment and shall certify that although Employee diligently sought such employment, Employee was unable to obtain it.\n(b) Verso Paper shall pay to Employee an amount equal to the sum of the incentive awards, if any, payable to Employee under the Verso\nPaper Incentive Plan (the “Incentive Plan”) for (i) the year immediately preceding the year in which termination of employment occurred, to\nthe extent not previously paid to Employee, and (ii) the year in which such termination occurred, prorated for the period of the year in which\nEmployee was employed by Verso Paper, in each case less applicable tax and other withholdings (collectively, the “Incentive Payment”). The\ndetermination of the Incentive Payment shall be made by Verso Paper, in its sole and absolute discretion, and, with respect to the year in which\ntermination occurred, shall be based on (i) Employee’s monthly base salary in effect in the month immediately preceding the termination of his\nemployment and (ii) the assumptions relative to the Incentive Plan that (A) Employee was employed by Verso Paper during the entire year and\nis otherwise eligible and qualified to receive the Incentive Payment, (B) Employee’s monthly base salary remained in effect and was not\nchanged during the remainder of the year, and (C) Employee achieved all of his individual performance measures, if any, during the year.\nVerso Paper shall make the Incentive Payment to Employee at the same time that it makes other incentive payments under the Incentive Plan to\nthe employees of Verso Paper.\n(c) Verso Paper shall (i) continue Employee’s coverage of the employment-related benefits described in Exhibit A for up to twenty-four\n(24) months following Employee’s termination of\nemployment with Verso Paper, in accordance with and subject to the terms and conditions set forth in the attached Exhibit A, and\n(ii) contribute on Employee’s behalf an amount equal to his Lost Retirement Benefits (as defined below) to the Verso Paper Deferred\nCompensation Plan. As used in this Agreement, the term “Lost Retirement Benefits” shall mean the projected value of employer contributions\nunder the Verso Paper Retirement Savings Plan, the Verso Paper Deferred Compensation Plan, and the Verso Paper Supplemental Salaried\nRetirement Savings Plan (collectively, the “Plans”) that Employee would have received had he remained actively employed with Verso Paper\nduring the twenty-four (24) months following Employee’s termination of employment with Verso Paper. The determination of the Lost\nRetirement Benefits shall be made by Verso Paper, in its sole and absolute discretion, and shall be based on (i) Employee’s monthly base salary\nin effect in the month immediately preceding the termination of his employment and (ii) the assumption that Employee’s salary deferrals\nduring such twenty-four (24) month period are in such amounts as would produce the maximum possible matching contribution by Verso\nPaper under the Plans. Verso Paper shall contribute on Employee’s behalf the value of his Lost Retirement Benefits to the Verso Paper\nDeferred Compensation Plan in a lump sum payment as soon as reasonably practicable after the determination of the Lost Retirement Benefits\nis made.\n7. Duty to Show Agreement to Prospective Employer. During Employee’s employment with Verso Paper and for twelve (12) months\nthereafter, Employee shall, prior to accepting other employment, provide a copy of this Agreement to any recruiter who assists Employee in locating\nemployment other than with Verso Paper and to any prospective employer with which Employee discusses potential employment.\n8. Representations, Warranties and Acknowledgements. In addition to the representations, warranties and obligations set forth throughout\nthis Agreement, Employee acknowledges that (a) Protected Information is commercially and competitively valuable to Verso Paper and critical to its\nsuccess; (b) the Unauthorized use or disclosure of Protected Information or the violation of the covenants set forth in Sections 2, 3, or 4 would cause\nirreparable harm to Verso Paper; (c) by this Agreement, Verso Paper is taking reasonable steps to protect its legitimate interests in its Protected\nInformation; (d) Employee has developed, or will develop legally unique relationships with customers of Verso Paper; and (e) nothing herein shall\nprohibit Verso Paper from pursuing any remedies whether in law or equity, available to Verso Paper for breach or threatened breach of this\nAgreement. Employee further acknowledges and agrees that as a senior executive of Verso Paper Employee performs unique and valuable services\nto Verso Paper of an intellectual character and that Employee’s services will be difficult for Verso Paper to replace. Employee further acknowledges\nand agrees that Verso Paper is providing Employee with significant consideration in this Agreement for entering into the Agreement and that Verso\nPaper’s remedies for any breach of this Agreement are in addition to and not in place of any other remedies Verso Paper may have at law or equity or\nunder any other agreements.\n9. Section 409A of the Code. The parties hereto acknowledge and agree that, to the extent applicable, this Agreement shall be interpreted in\naccordance with, and incorporate the terms and conditions required by, Section 409A of the Internal Revenue Code of 1986, as amended, and the\nDepartment of Treasury Regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other\nguidance that may be issued after the date hereof (“Section 409A”). Notwithstanding any provision of this Agreement to the contrary, in the event\nthat Verso Paper determines that any amounts payable hereunder will be immediately taxable to Employee under Section 409A, Verso Paper and\nEmployee shall cooperate in good faith to (a) adopt such amendments to this Agreement and appropriate policies and procedures, including\namendments and policies with retroactive effect, that they mutually determine to be necessary or appropriate to preserve the intended tax treatment\nof the benefits provided by this Agreement, to preserve the economic benefits of this Agreement, and to avoid less favorable accounting or tax\nconsequences for Verso Paper and/or (b) take such other actions as mutually determined to be necessary or appropriate to exempt any amounts\npayable hereunder from\nSection 409A or to comply with the requirements of Section 409A and thereby avoid the application of penalty taxes thereunder. In addition, and\nnotwithstanding any provision of this Agreement to the contrary, to the extent subject to Section 409A, payment to a “specified employee” as\ndefined in Section 409A(2)(B)(i) shall not be made before the date which is six (6) months after the date of termination of employment.\n10. General.\n(a) Employee acknowledges and agrees that the parties have attempted to limit Employee’s right to compete only to the extent necessary\nto protect Verso Paper from unfair competition and protect the legitimate interests of Verso Paper. If any provision or clause of this Agreement\nor portion thereof shall be held by any court of competent jurisdiction to be illegal, void or unenforceable in such jurisdiction, the remainder of\nsuch provisions shall not thereby be affected and shall be given full effect, without regard to the invalid portion. It is the intention of the parties\nand Employee agrees, that if any court construes any provision or clause of this Agreement or any portion thereof to be illegal, void or\nunenforceable because of the duration of such provision or the area or matter covered thereby, such court shall reduce the duration, area or\nmatter of such provision and in its reduced form, such provision shall then be enforceable and shall be enforced.\n(b) Employee acknowledges that neither this Agreement nor any provision hereof can be modified, abrogated or waived except in a\nwritten document signed by the Vice President of Human Resource or the President and Chief Executive Officer of Verso Paper, or in the event\nof the absence of either of these executives or the vacancy of either of these positions, such other officer of Verso Paper as Verso Paper’s Board\nof Directors shall designate in writing.\n(c) This Agreement shall be governed by and in accordance with the laws and public policies of the State of Delaware.\n(d) Employee hereby consents to the jurisdiction of and agrees that any claim arising out of or relating to this Agreement may be brought\nin the courts of the State of Delaware.\n(e) This Agreement and any rights thereunder may be assigned by Verso Paper and if so assigned shall operate to protect the Protected\nInformation and relationships of Verso Paper as well as such information and relationships of the assignee.\n(f) Should either party to this Agreement breach any of the terms of this Agreement, that party shall pay to the non-defaulting party all of\nthe non-defaulting party’s costs and expenses, including attorney’s and experts’ fees in enforcing the provisions of the Agreement as to which a\nbreach is found.\n(g) Employee agrees that Verso Paper’s determination not to enforce this or similar agreements as to specific violations shall not operate\nas a waiver or release of Employee’s obligations under this Agreement.\n(h) Employee understands that Employee owes fiduciary and common law duties to Verso Paper in addition to the covenants set forth\nabove prohibiting the misuse or disclosure of trade secrets or confidential information and the unlawful interference with Verso Paper’s\nbusiness and customer relationships.\n(i) Employee acknowledges and agrees that Verso Paper has advised Employee that Employee may consult with an independent attorney\nbefore signing this Agreement.\n(j) This Agreement sets forth the entire agreement of the parties, and fully supersedes any and all prior agreements or understandings\nbetween the parties pertaining to the subject matter hereof.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered effective as of the date first set forth\nabove.\nVERSO PAPER HOLDINGS LLC\nBy: /s/ Michael A. Jackson\nMichael A. Jackson\nPresident and Chief Executive Officer\n/s/ Peter H. Kesser\nPeter H. Kesser\nBenefits: EXHIBIT A\nEMPLOYMENT-RELATED BENEFITS\nCoverage under Verso Paper Medical and Dental Plan for Employee and his or her eligible dependents for up to twenty-four (24) months.\nReimbursement for (i) all costs to convert to an individual policy the basic life insurance coverage on Employee’s life only, in such\namount as in effect at termination of employment, and (ii) the premiums necessary to continue such converted coverage for up to twenty-\nfour (24) months. Reimbursement shall be conditioned on Employee providing Verso Paper with satisfactory evidence that the\nconversion costs and premiums have been incurred.\nAdditional Terms and Conditions: Verso Paper shall pay Employee an amount equal to the aggregate of any and all federal, state and local income tax imposed on\nEmployee resulting from the benefits set forth above, as determined by Verso Paper in its sole and absolute discretion.\nBenefit coverage/reimbursement is subject to early termination upon Employee’s re-employment with comparable benefits available, as\ndetermined by Verso Paper in its sole and absolute discretion.\nVerso Paper reserves the right to modify, revoke, suspend, terminate or change any or all of its benefit plans, programs or policies, in\nwhole or in part, at any time and from time to time, and with or without notice, provided that any such change or modification is\napplicable to all similarly situated employees of Verso Paper.	EX-10.15 7 ex1015.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (PETER H. KESSER)\nExhibit 10.15\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Competition Agreement (this "Agreement") is entered into as of January 1, 2008, by and between Verso Paper\nHoldings LLC, a Delaware limited liability company ("Verso Paper"), and Peter H. Kesser ("Employee"), to allow Employee to have access to\ncertain valuable competitive information and business relationships of Verso Paper while also providing protection for such information and\nrelationships.\nWHEREAS, Verso Paper is willing to employ Employee in the position of Vice President, General Counsel and Secretary, and Employee is\nwilling to accept such employment upon the terms and conditions set forth herein; and,\nWHEREAS, Verso Paper is willing to provide Employee with certain benefits, as set forth herein, even after the employment relationship with\nEmployee has ended in order to protect its valuable competitive information and business relationships; and\nWHEREAS, after having ample opportunity to discuss, negotiate, and revise as necessary, the parties are willing to enter into this Agreement;\nNOW, THEREFORE, the parties hereto agree as follows:\n1. Definitions. As used in this Agreement, the terms:\n(a) "Protected Information" shall mean all information, documents or materials, owned, developed or possessed by Verso Paper or any\nemployee while in the employ of Verso Paper, whether in tangible or intangible form, which (i) Verso Paper takes reasonable measures to\nmaintain in secrecy, and (ii) pertains in any manner to Verso Paper's business, including but not limited to Research and Development (as\ndefined below); customers or prospective customers, targeted national accounts, or strategies or data for identifying and satisfying their needs;\npresent or prospective business relationships; present, short term, or long term strategic plans; acquisition candidates; plans for corporate\nrestructuring; products under consideration or development; cost, margin or profit information; data from which any of the foregoing types of\ninformation could be derived; human resources (including compensation information and internal evaluations of the performance, capability\nand potential of Verso Paper employees); business methods, data bases and computer programs. The fact that individual elements of the\ninformation that constitutes Protected Information may be generally known does not prevent an integrated compilation of information, whether\nor not reduced to writing, from being Protected Information if that integrated whole is not generally known.\n(b) "Research and Development" shall include, but not be limited to (i) all short term and long term basic, applied and developmental\nresearch and technical assistance and specialized research support of customers or active prospects, targeted national accounts, of Verso Paper\noperating divisions; (ii) information relating to manufacturing and converting processes, methods, techniques and equipment and the\nimprovements and innovations relating to same; quality control procedures and equipment; identification, selection, generation and\npropagation of tree species having improved characteristics; forest resource management; innovation and improvement to manufacturing and\nconverting processes such as shipping, pulping bleaching chemical recovery papermaking, coating and calendaring processes and in equipment\nfor use in such processes; reduction and remediation of environmental discharges; minimization or elimination of solid and liquid waste; use\nand optimization of raw materials in manufacturing processes; recycling and manufacture paper products; recycling of other paper or pulp\nproducts; energy conservation; computer software and application of computer controls to manufacturing\nand quality control operations and to inventory control; radio frequency identification and its use in paper and packaging products; and product\nprocess improvement development or evaluation; and (iii) information about methods, techniques, products equipment, and processes which\nVerso Paper has learned do not work or do not provide beneficial results ("negative know-how") as well as those which do work which provide\nbeneficial results.\n(c) "Unauthorized" shall mean (i) in contravention of Verso Paper's policies or procedures; (ii) otherwise inconsistent with Verso Paper's\nmeasures to protect its interests in the Protected Information; (iii) in contravention of any lawfu instruction or directive, either written or oral,\nof an Verso Paper employee empowered to issue such instruction or directive; (iv) in contravention of any duty existing under law or contract;\nor (v) to the detriment of Verso Paper.\n2. Confidentiality.\n(a) Employee acknowledges and agrees that by reason of employment with Verso Paper as a senior level executive in the position of Vice\nPresident, General Counsel and Secretary, Employee has been and will be entrusted with Protected Information and may develop Protected\nInformation, that such information is valuable and useful to Verso Paper, that it would also be valuable and useful to competitors and others\nwho do not know it and that such information constitutes confidential and proprietary trade secrets of Verso Paper. While an employee or\nconsultant of Verso Paper, or at any time thereafter, regardless of the reasons for leaving Verso Paper, Employee agrees not to use or disclose,\ndirectly or indirectly, any Protected Information in an Unauthorized manner or for any Unauthorized purpose unless such information shall\nhave become generally known in the relevant industry or independently developed with no assistance from Employee. Further, promptly upon\ntermination, for any reason, of Employee's employment with Verso Paper or upon the request of Verso Paper Employee agrees to deliver to\nVerso Paper all property and materials and copies thereof within Employee's possession or control which belong to Verso Paper or which\ncontain Protected Information and to permanently delete upon Verso Paper's request all Protected Information from any computers or other\nelectronic storage media Employee owns or uses.\n(b) While an employee of Verso Paper and after termination of Employee's employment with Verso Paper for any reason, Employee\nagrees not to take any actions which would constitute or facilitate the Unauthorized use or disclosure of Protected Information, including\ntransmitting or posting such Protected Information on the internet, anonymously or otherwise. Employee further agrees to take all reasonable\nmeasures to prevent the Unauthorized use and disclosure of Protected Information and to prevent Unauthorized persons or entities from\nobtaining or using Protected Information.\n(c) If Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, investigation, demand, order\nor similar process) to disclose any Protected Information, then before any such disclosure may be made, Employee shall immediately notify\nVerso Paper thereof and, at Verso Paper's expense, shall consult with Verso Paper on the advisability of taking steps to resist or narrow such\nrequest and cooperate with Verso Paper in any attempt to obtain a protective order or other appropriate remedy or assurance that the Protected\nInformation will be afforded confidential treatment. If such protective order or other appropriate remedy is not obtained, Employee shall\nfurnish only that portion of the Protected Information that it is advised by legal counsel is legally required to be furnished.\n2\n3. Non-Competition.\n(a) Employee acknowledges and agrees that the business of Verso Paper and its customers is worldwide in scope, Verso Paper's\ncompetitors and customers are located throughout the world, and Verso Paper's strategic planning and Research and Development activities\nhave application throughout the world and are for the benefit of customers and Verso Paper's business throughout the world, and therefore, the\nrestrictions on Employee's competition after employment as described below apply to anywhere in the world in which Verso Paper or its\nsubsidiaries are doing business. Employee acknowledges that any such competition within that geographical scope will irreparably injure\nVerso Paper. Employee acknowledges and agrees that, for that reason, the prohibitions on competition described below are reasonably tailored\nto protect Verso Paper.\n(b) While an employee or consultant of Verso Paper, Employee agrees not to compete in any manner, either directly or indirectly and\nwhether for compensation or otherwise, with Verso Paper or to assist any other person or entity to compete with Verso Paper in the business of\ncoated and supercalendared paper products or the operation of coated and supercalendared paper mills anywhere in the world.\n(c) After the termination of Employee's employment with Verso Paper for any reason, Employee agrees that for a period of twelve\n(12) months (the "Non-Compete Period") following such termination Employee will not compete with Verso Paper anywhere in the world in\nwhich Verso Paper or its subsidiaries are doing business:\n(i) by producing, developing, selling or marketing, or assisting others to produce, develop, sell or market in the business of coated\nand supercalendared paper products or the operation of coated and supercalendared paper mills;\n(ii) by engaging in any sales, marketing, Research and Development or managerial duties (including, without limitation, financial,\nhuman resources, strategic planning, or operation duties) for, whether as an employee, consultant, or otherwise, any entity which\nproduces, develops, sells or markets in the business of coated and supercalendared paper products or the operation of coated and\nsupercalendared paper mills;\n(iii) by owning, managing, operating, controlling or consulting for any entity which produces, develops, sells or markets in the\nbusiness of coated and supercalendared paper products or the operation of coated and supercalendared paper mills, provided that this\nSection 3(c)(iii) shall not prohibit Employee from being a passive owner of not more than two percent (2%) of the outstanding stock of\nany class of a corporation that is publicly traded, so long as Employee has no active participation in the business of such corporation;\nor\n(iv) by soliciting the business of any actual or active prospective customers, or targeted national accounts of Verso Paper for any\nproduct, process or service which is competitive with the products, processes, or services of Verso Paper, namely any products, processes\nor services of the business of coated and supercalendared paper products or the operation of coated and supercalendared paper mills,\nwhether existing or contemplated for the future, on which Employee has worked, or concerning which Employee has in any manner\nacquired knowledge or Protected Information about, during the twenty four (24) months preceding termination of Employee's\nemployment.\nIt shall not be a violation of this provision for Employee to accept employment with a non-competitive division or business unit of a multi-\ndivisional company some of whose divisions or business units are competitors of Verso Paper, so long as Employee does not engage in, oversee,\nprovide input or\n3\ninformation regarding, or participate in any manner in the activities described in this paragraph as they relate to the division or business unit which is\na competitor of Verso Paper. Employee shall not assist others in engaging in activities which Employee is not permitted to take.\n4. Non-Solicitation/Non-Hire. During the term of Employee's employment at Verso Paper and for twelve (12) months following the\ntermination, for any reason, of employment, Employee agrees that Employee will not, either on Employee's own behalf or on behalf of any other\nperson\nor\nentity,\ndirectly or indirectly, hire, solicit, retain or encourage to leave the employ of Verso Paper (or assist any other person or entity\nin\nhiring, soliciting, retaining or encouraging) any person who is then or was within six (6) months of the date of such hiring an employee of Verso\nPaper.\n5. Tolling Period of Restrictions. Employee agrees that the periods of non-competition and non-solicitation/non-hire set forth in Sections\n3\nand 4, respectively, shall be extended by the period of violation if Employee is found to be in violation of those provisions.\n6. Post-Termination Payments and Benefits. Upon the termination of Employee's employment with Verso Paper for any reason, in\nconsideration of Employee's compliance with all his obligations under this Agreement (including, without limitation, his obligations under Sections\n2, 3(c) and 4), and provided that Employee complies with all such obligations, Verso Paper shall provide post-termination payments and benefits to\nEmployee as follows:\n(a) During the Non-Compete Period, if Employee is unable, despite diligent search, to obtain employment consistent with Employee's\nexperience and education, Employee shall so notify Verso Paper in writing, describing in reasonable detai the efforts Employee has made to\nsecure such employment that does not conflict with Employee's non-compete obligations. Upon receipt and reasonable verification of the\ninformation contained in such notice, Verso Paper shall make monthly payments to Employee in an amount equal to Employee's monthly base\nsalary in effect in the month immediately preceding the termination of his employment, less applicable tax and other withholdings, for each\nmonth (or prorated for periods less than a month) of such unemployment during the Non-Compete Period. Before the close of each month for\nwhich Employee seeks such payment, Employee shall advise Verso Paper in writing of Employee's efforts to obtain non-competitive\nemployment and shall certify that although Employee diligently sought such employment, Employee was unable to obtain it.\n(b) Verso Paper shall pay to Employee an amount equal to the sum of the incentive awards, if any, payable to Employee under the Verso\nPaper Incentive Plan (the "Incentive Plan") for (i) the year immediately preceding the year in which termination of employment occurred, to\nthe extent not previously paid to Employee, and (ii) the year in which such termination occurred, prorated for the period of the year in which\nEmployee was employed by Verso Paper, in each case less applicable tax and other withholdings (collectively, the "Incentive Payment"). The\ndetermination of the Incentive Payment shall be made by Verso Paper, in its sole and absolute discretion, and, with respect to the year in which\ntermination occurred, shall be based on (i) Employee's monthly base salary in effect in the month immediately preceding the termination of his\nemployment and (ii) the assumptions relative to the Incentive Plan that (A) Employee was employed by Verso Paper during the entire year and\nis otherwise eligible and qualified to receive the Incentive Payment, (B) Employee's monthly base salary remained in effect and was not\nchanged during the remainder of the year, and (C) Employee achieved all of his individual performance measures, if any, during the year.\nVerso Paper shall make the Incentive Payment to Employee at the same time that it makes other incentive payments under the Incentive Plan to\nthe employees of Verso Paper.\n(c) Verso Paper shall (i) continue Employee's coverage of the employment-related benefits described in Exhibit A for up to twenty-four\n(24) months following Employee's termination of\n4\nemployment with Verso Paper, in accordance with and subject to the terms and conditions set forth in the attached Exhibit A,\nand\n(ii) contribute on Employee's behalf an amount equal to his Lost Retirement Benefits (as defined below) to the Verso Paper Deferred\nCompensation Plan. As used in this Agreement, the term "Lost Retirement Benefits" shall mean the projected value of employer contributions\nunder the Verso Paper Retirement Savings Plan, the Verso Paper Deferred Compensation Plan, and the Verso Paper Supplemental Salaried\nRetirement Savings Plan (collectively, the "Plans") that Employee would have received had he remained actively employed with Verso Paper\nduring the twenty-four (24) months following Employee's termination of employment with Verso Paper. The determination of the Lost\nRetirement Benefits shall be made by Verso Paper, in its sole and absolute discretion, and shall be based on (i) Employee's monthly base salary\nin effect in the month immediately preceding the termination of his employment and (ii) the assumption that Employee's salary deferrals\nduring such twenty-four (24) month period are in such amounts as would produce the maximum possible matching contribution by Verso\nPaper under the Plans. Verso Paper shall contribute on Employee's behalf the value of his Lost Retirement Benefits to the Verso Paper\nDeferred Compensation Plan in a lump sum payment as soon as reasonably practicable after the determination of the Lost Retirement Benefits\nis made.\n7. Duty to Show Agreement to Prospective Employer. During Employee's employment with Verso Paper and for twelve (12) months\nthereafter, Employee shall, prior to accepting other employment, provide a copy of this Agreement to any recruiter who assists Employee in locating\nemployment other than with Verso Paper and to any prospective employer with which Employee discusses potential employment.\n8. Representations, Warranties and Acknowledgements. In addition to the representations, warranties and obligations set forth throughout\nthis Agreement, Employee acknowledges that (a) Protected Information is commercially and competitively valuable to Verso Paper and critical to its\nsuccess; (b) the Unauthorized use or disclosure of Protected Information or the violation of the covenants set forth in Sections 2, 3, or 4 would cause\nirreparable harm to Verso Paper; (c) by this Agreement, Verso Paper is taking reasonable steps to protect its legitimate interests in its Protected\nInformation; (d) Employee has developed, or will develop legally unique relationships with customers of Verso Paper; and (e) nothing herein shall\nprohibit Verso Paper from pursuing any remedies whether in law or equity, available to Verso Paper for breach or threatened breach of this\nAgreement. Employee further acknowledges and agrees that as a senior executive of Verso Paper Employee performs unique and valuable services\nto Verso Paper of an intellectual character and that Employee's services will be difficult for Verso Paper to replace. Employee further acknowledges\nand agrees that Verso Paper is providing Employee with significant consideration in this Agreement for entering into the Agreement and that Verso\nPaper's remedies for any breach of this Agreement are in addition to and not in place of any other remedies Verso Paper may have at law or equity or\nunder any other agreements.\n9. Section 409A of the Code. The parties hereto acknowledge and agree that, to the extent applicable, this Agreement shall be interpreted in\naccordance with, and incorporate the terms and conditions required by, Section 409A of the Internal Revenue Code of 1986, as amended, and the\nDepartment of Treasury Regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other\nguidance that may be issued after the date hereof ("Section 409A"). Notwithstanding any provision of this Agreement to the contrary, in the event\nthat Verso Paper determines that any amounts payable hereunder will be immediately taxable to Employee under Section 409A, Verso Paper and\nEmployee shall cooperate in good faith to (a) adopt such amendments to this Agreement and appropriate policies and procedures, including\namendments and policies with retroactive effect, that they mutually determine to be necessary or appropriate to preserve the intended tax treatment\nof the benefits provided by this Agreement, to preserve the economic benefits of this Agreement, and to avoid less favorable accounting or tax\nconsequences for Verso Paper and/or (b) take such other actions as mutually determined to be necessary or appropriate to exempt any amounts\npayable hereunder from\n5\nSection 409A or to comply with the requirements of Section 409A and thereby avoid the application of penalty taxes thereunder. In addition, and\nnotwithstanding any provision of this Agreement to the contrary, to the extent subject to Section 409A, payment to a "specified employee"\nas\ndefined in Section 409A(2)(B)(i) shall not be made before the date which is six (6) months after the date of termination of employment.\n10. General.\n(a) Employee acknowledges and agrees that the parties have attempted to limit Employee's right to compete only to the extent necessary\nto protect Verso Paper from unfair competition and protect the legitimate interests of Verso Paper. If any provision or clause of this Agreement\nor portion thereof shall be held by any court of competent jurisdiction to be illegal, void or unenforceable in such jurisdiction, the remainder of\nsuch provisions shall not thereby be affected and shall be given full effect, without regard to the invalid portion. It is the intention of the parties\nand Employee agrees, that if any court construes any provision or clause of this Agreement or any portion thereof to be illegal, void\nor\nunenforceable because of the duration of such provision or the area or matter covered thereby, such court shall reduce the duration, area or\nmatter of such provision and in its reduced form, such provision shall then be enforceable and shall be enforced.\n(b) Employee acknowledges that neither this Agreement nor any provision hereof can be modified, abrogated or waived except in\na\nwritten document signed by the Vice President of Human Resource or the President and Chief Executive Officer of Verso Paper, or in the event\nof the absence of either of these executives or the vacancy of either of these positions, such other officer of Verso Paper as Verso Paper's Board\nof Directors shall designate in writing.\n(c) This Agreement shall be governed by and in accordance with the laws and public policies of the State of Delaware.\n(d) Employee hereby consents to the jurisdiction of and agrees that any claim arising out of or relating to this Agreement may be brought\nin the courts of the State of Delaware.\n(e) This Agreement and any rights thereunder may be assigned by Verso Paper and if so assigned shall operate to protect the Protected\nInformation and relationships of Verso Paper as well as such information and relationships of the assignee.\n(f) Should either party to this Agreement breach any of the terms of this Agreement, that party shall pay to the non-defaulting party all of\nthe non-defaulting party's costs and expenses, including attorney's and experts' fees in enforcing the provisions of the Agreement as to which a\nbreach is found.\n(g) Employee agrees that Verso Paper's determination not to enforce this or similar agreements as to specific violations shall not operate\nas a waiver or release of Employee's obligations under this Agreement.\n(h) Employee understands that Employee owes fiduciary and common law duties to Verso Paper in addition to the covenants set forth\nabove prohibiting the misuse or disclosure of trade secrets or confidential information and the unlawful interference with Verso Paper's\nbusiness and customer relationships.\n(i) Employee acknowledges and agrees that Verso Paper has advised Employee that Employee may consult with an independent attorney\nbefore signing this Agreement.\n6\n(j) This Agreement sets forth the entire agreement of the parties, and fully supersedes any and all prior agreements or understandings\nbetween the parties pertaining to the subject matter hereof.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered effective as of the date first set forth\nabove.\nVERSO PAPER HOLDINGS LLC\nBy: /s/ Michael A. Jackson\nMichael A. Jackson\nPresident and Chief Executive Officer\n/s/ Peter H. Kesser\nPeter H. Kesser\n7\nEXHIBIT A\nEMPLOYMENT-RELATED BENEFITS\nBenefits:\nCoverage under Verso Paper Medical and Dental Plan for Employee and his or her eligible dependents for up to twenty-four (24) months.\nReimbursement for (i) all costs to convert to an individual policy the basic life insurance coverage on Employee's life only, in such\namount as in effect at termination of employment, and (ii) the premiums necessary to continue such converted coverage for up to twenty-\nfour (24) months. Reimbursement shall be conditioned on Employee providing Verso Paper with satisfactory evidence that the\nconversion costs and premiums have been incurred.\nAdditional Terms and Conditions:\nVerso Paper shall pay Employee an amount equal to the aggregate of any and all federal, state and local income tax imposed on\nEmployee resulting from the benefits set forth above, as determined by Verso Paper in its sole and absolute discretion.\nBenefit coverage/reimbursement is subject to early termination upon Employee's re-employment with comparable benefits available, as\ndetermined by Verso Paper in its sole and absolute discretion.\nVerso Paper reserves the right to modify, revoke, suspend, terminate or change any or all of its benefit plans, programs or policies, in\nwhole or in part, at any time and from time to time, and with or without notice, provided that any such change or modification is\napplicable to all similarly situated employees of Verso Paper.\n8	EX-10.15 7 dex1015.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (PETER H. KESSER)\nExhibit 10.15\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Competition Agreement (this “Agreement”) is entered into as of January 1, 2008, by and between Verso Paper\nHoldings LLC, a Delaware limited liability company (“Verso Paper”), and Peter H. Kesser (“Employee”), to allow Employee to have access to\ncertain valuable competitive information and business relationships of Verso Paper while also providing protection for such information and\nrelationships.\nWHEREAS, Verso Paper is willing to employ Employee in the position of Vice President, General Counsel and Secretary, and Employee is\nwilling to accept such employment upon the terms and conditions set forth herein; and,\nWHEREAS, Verso Paper is willing to provide Employee with certain benefits, as set forth herein, even after the employment relationship with\nEmployee has ended in order to protect its valuable competitive information and business relationships; and\nWHEREAS, after having ample opportunity to discuss, negotiate, and revise as necessary, the parties are willing to enter into this Agreement;\nNOW, THEREFORE, the parties hereto agree as follows:\n1. Definitions. As used in this Agreement, the terms:\n(a) “Protected Information” shall mean all information, documents or materials, owned, developed or possessed by Verso Paper or any\nemployee while in the employ of Verso Paper, whether in tangible or intangible form, which (i) Verso Paper takes reasonable measures to\nmaintain in secrecy, and (ii) pertains in any manner to Verso Paper’s business, including but not limited to Research and Development (as\ndefined below); customers or prospective customers, targeted national accounts, or strategies or data for identifying and satisfying their needs;\npresent or prospective business relationships; present, short term, or long term strategic plans; acquisition candidates; plans for corporate\nrestructuring; products under consideration or development; cost, margin or profit information; data from which any of the foregoing types of\ninformation could be derived; human resources (including compensation information and internal evaluations of the performance, capability\nand potential of Verso Paper employees); business methods, data bases and computer programs. The fact that individual elements of the\ninformation that constitutes Protected Information may be generally known does not prevent an integrated compilation of information, whether\nor not reduced to writing, from being Protected Information if that integrated whole is not generally known.\n(b) “Research and Development” shall include, but not be limited to (i) all short term and long term basic, applied and developmental\nresearch and technical assistance and specialized research support of customers or active prospects, targeted national accounts, of Verso Paper\noperating divisions; (ii) information relating to manufacturing and converting processes, methods, techniques and equipment and the\nimprovements and innovations relating to same; quality control procedures and equipment; identification, selection, generation and\npropagation of tree species having improved characteristics; forest resource management; innovation and improvement to manufacturing and\nconverting processes such as shipping, pulping bleaching chemical recovery papermaking, coating and calendaring processes and in equipment\nfor use in such processes; reduction and remediation of environmental discharges; minimization or elimination of solid and liquid waste; use\nand optimization of raw materials in manufacturing processes; recycling and manufacture paper products; recycling of other paper or pulp\nproducts; energy conservation; computer software and application of computer controls to manufacturing\nand quality control operations and to inventory control; radio frequency identification and its use in paper and packaging products; and product\nprocess improvement development or evaluation; and (iii) information about methods, techniques, products equipment, and processes which\nVerso Paper has learned do not work or do not provide beneficial results (“negative know-how”) as well as those which do work which provide\nbeneficial results.\n(c) “Unauthorized” shall mean (i) in contravention of Verso Paper’s policies or procedures; (ii) otherwise inconsistent with Verso Paper’s\nmeasures to protect its interests in the Protected Information; (iii) in contravention of any lawful instruction or directive, either written or oral,\nof an Verso Paper employee empowered to issue such instruction or directive; (iv) in contravention of any duty existing under law or contract;\nor (v) to the detriment of Verso Paper.\n2. Confidentiality.\n(a) Employee acknowledges and agrees that by reason of employment with Verso Paper as a senior level executive in the position of Vice\nPresident, General Counsel and Secretary, Employee has been and will be entrusted with Protected Information and may develop Protected\nInformation, that such information is valuable and useful to Verso Paper, that it would also be valuable and useful to competitors and others\nwho do not know it and that such information constitutes confidential and proprietary trade secrets of Verso Paper. While an employee or\nconsultant of Verso Paper, or at any time thereafter, regardless of the reasons for leaving Verso Paper, Employee agrees not to use or disclose,\ndirectly or indirectly, any Protected Information in an Unauthorized manner or for any Unauthorized purpose unless such information shall\nhave become generally known in the relevant industry or independently developed with no assistance from Employee. Further, promptly upon\ntermination, for any reason, of Employee’s employment with Verso Paper or upon the request of Verso Paper Employee agrees to deliver to\nVerso Paper all property and materials and copies thereof within Employee’s possession or control which belong to Verso Paper or which\ncontain Protected Information and to permanently delete upon Verso Paper’s request all Protected Information from any computers or other\nelectronic storage media Employee owns or uses.\n(b) While an employee of Verso Paper and after termination of Employee’s employment with Verso Paper for any reason, Employee\nagrees not to take any actions which would constitute or facilitate the Unauthorized use or disclosure of Protected Information, including\ntransmitting or posting such Protected Information on the internet, anonymously or otherwise. Employee further agrees to take all reasonable\nmeasures to prevent the Unauthorized use and disclosure of Protected Information and to prevent Unauthorized persons or entities from\nobtaining or using Protected Information.\n(c) If Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, investigation, demand, order\nor similar process) to disclose any Protected Information, then before any such disclosure may be made, Employee shall immediately notify\nVerso Paper thereof and, at Verso Paper’s expense, shall consult with Verso Paper on the advisability of taking steps to resist or narrow such\nrequest and cooperate with Verso Paper in any attempt to obtain a protective order or other appropriate remedy or assurance that the Protected\nInformation will be afforded confidential treatment. If such protective order or other appropriate remedy is not obtained, Employee shall\nfurnish only that portion of the Protected Information that it is advised by legal counsel is legally required to be furnished.\n2\n3. Non-Competition.\n(a) Employee acknowledges and agrees that the business of Verso Paper and its customers is worldwide in scope, Verso Paper ’s\ncompetitors and customers are located throughout the world, and Verso Paper’s strategic planning and Research and Development activities\nhave application throughout the world and are for the benefit of customers and Verso Paper’s business throughout the world, and therefore, the\nrestrictions on Employee’s competition after employment as described below apply to anywhere in the world in which Verso Paper or its\nsubsidiaries are doing business. Employee acknowledges that any such competition within that geographical scope will irreparably injure\nVerso Paper. Employee acknowledges and agrees that, for that reason, the prohibitions on competition described below are reasonably tailored\nto protect Verso Paper.\n(b) While an employee or consultant of Verso Paper, Employee agrees not to compete in any manner, either directly or indirectly and\nwhether for compensation or otherwise, with Verso Paper or to assist any other person or entity to compete with Verso Paper in the business of\ncoated and supercalendared paper products or the operation of coated and supercalendared paper mills anywhere in the world.\n(c) After the termination of Employee’s employment with Verso Paper for any reason, Employee agrees that for a period of twelve\n(12) months (the “Non-Compete Period”) following such termination Employee will not compete with Verso Paper anywhere in the world in\nwhich Verso Paper or its subsidiaries are doing business:\n(i) by producing, developing, selling or marketing, or assisting others to produce, develop, sell or market in the business of coated\nand supercalendared paper products or the operation of coated and supercalendared paper mills;\n(ii) by engaging in any sales, marketing, Research and Development or managerial duties (including, without limitation, financial,\nhuman resources, strategic planning, or operation duties) for, whether as an employee, consultant, or otherwise, any entity which\nproduces, develops, sells or markets in the business of coated and supercalendared paper products or the operation of coated and\nsupercalendared paper mills;\n(iii) by owning, managing, operating, controlling or consulting for any entity which produces, develops, sells or markets in the\nbusiness of coated and supercalendared paper products or the operation of coated and supercalendared paper mills, provided that this\nSection 3(c)(iii) shall not prohibit Employee from being a passive owner of not more than two percent (2%) of the outstanding stock of\nany class of a corporation that is publicly traded, so long as Employee has no active participation in the business of such corporation; or\n(iv) by soliciting the business of any actual or active prospective customers, or targeted national accounts of Verso Paper for any\nproduct, process or service which is competitive with the products, processes, or services of Verso Paper, namely any products, processes\nor services of the business of coated and supercalendared paper products or the operation of coated and supercalendared paper mills,\nwhether existing or contemplated for the future, on which Employee has worked, or concerning which Employee has in any manner\nacquired knowledge or Protected Information about, during the twenty four (24) months preceding termination of Employee’s\nemployment.\nIt shall not be a violation of this provision for Employee to accept employment with a non-competitive division or business unit of a multi-\ndivisional company some of whose divisions or business units are competitors of Verso Paper, so long as Employee does not engage in, oversee,\nprovide input or\n3\ninformation regarding, or participate in any manner in the activities described in this paragraph as they relate to the division or business unit which is\na competitor of Verso Paper. Employee shall not assist others in engaging in activities which Employee is not permitted to take.\n4. Non-Solicitation/Non-Hire. During the term of Employee’s employment at Verso Paper and for twelve (12) months following the\ntermination, for any reason, of employment, Employee agrees that Employee will not, either on Employee’s own behalf or on behalf of any other\nperson or entity, directly or indirectly, hire, solicit, retain or encourage to leave the employ of Verso Paper (or assist any other person or entity in\nhiring, soliciting, retaining or encouraging) any person who is then or was within six (6) months of the date of such hiring an employee of Verso\nPaper.\n5. Tolling Period of Restrictions. Employee agrees that the periods of non-competition and non-solicitation/non-hire set forth in Sections 3\nand 4, respectively, shall be extended by the period of violation if Employee is found to be in violation of those provisions.\n6. Post-Termination Payments and Benefits. Upon the termination of Employee’s employment with Verso Paper for any reason, in\nconsideration of Employee’s compliance with all his obligations under this Agreement (including, without limitation, his obligations under Sections\n2, 3(c) and 4), and provided that Employee complies with all such obligations, Verso Paper shall provide post-termination payments and benefits to\nEmployee as follows:\n(a) During the Non-Compete Period, if Employee is unable, despite diligent search, to obtain employment consistent with Employee’s\nexperience and education, Employee shall so notify Verso Paper in writing, describing in reasonable detail the efforts Employee has made to\nsecure such employment that does not conflict with Employee’s non-compete obligations. Upon receipt and reasonable verification of the\ninformation contained in such notice, Verso Paper shall make monthly payments to Employee in an amount equal to Employee’s monthly base\nsalary in effect in the month immediately preceding the termination of his employment, less applicable tax and other withholdings, for each\nmonth (or prorated for periods less than a month) of such unemployment during the Non-Compete Period. Before the close of each month for\nwhich Employee seeks such payment, Employee shall advise Verso Paper in writing of Employee’s efforts to obtain non-competitive\nemployment and shall certify that although Employee diligently sought such employment, Employee was unable to obtain it.\n(b) Verso Paper shall pay to Employee an amount equal to the sum of the incentive awards, if any, payable to Employee under the Verso\nPaper Incentive Plan (the “Incentive Plan”) for (i) the year immediately preceding the year in which termination of employment occurred, to\nthe extent not previously paid to Employee, and (ii) the year in which such termination occurred, prorated for the period of the year in which\nEmployee was employed by Verso Paper, in each case less applicable tax and other withholdings (collectively, the “Incentive Payment”). The\ndetermination of the Incentive Payment shall be made by Verso Paper, in its sole and absolute discretion, and, with respect to the year in which\ntermination occurred, shall be based on (i) Employee’s monthly base salary in effect in the month immediately preceding the termination of his\nemployment and (ii) the assumptions relative to the Incentive Plan that (A) Employee was employed by Verso Paper during the entire year and\nis otherwise eligible and qualified to receive the Incentive Payment, (B) Employee’s monthly base salary remained in effect and was not\nchanged during the remainder of the year, and (C) Employee achieved all of his individual performance measures, if any, during the year.\nVerso Paper shall make the Incentive Payment to Employee at the same time that it makes other incentive payments under the Incentive Plan to\nthe employees of Verso Paper.\n(c) Verso Paper shall (i) continue Employee’s coverage of the employment-related benefits described in Exhibit A for up to twenty-four\n(24) months following Employee’s termination of\n4\nemployment with Verso Paper, in accordance with and subject to the terms and conditions set forth in the attached Exhibit A, and\n(ii) contribute on Employee’s behalf an amount equal to his Lost Retirement Benefits (as defined below) to the Verso Paper Deferred\nCompensation Plan. As used in this Agreement, the term “Lost Retirement Benefits” shall mean the projected value of employer contributions\nunder the Verso Paper Retirement Savings Plan, the Verso Paper Deferred Compensation Plan, and the Verso Paper Supplemental Salaried\nRetirement Savings Plan (collectively, the “Plans”) that Employee would have received had he remained actively employed with Verso Paper\nduring the twenty-four (24) months following Employee’s termination of employment with Verso Paper. The determination of the Lost\nRetirement Benefits shall be made by Verso Paper, in its sole and absolute discretion, and shall be based on (i) Employee’s monthly base salary\nin effect in the month immediately preceding the termination of his employment and (ii) the assumption that Employee’s salary deferrals\nduring such twenty-four (24) month period are in such amounts as would produce the maximum possible matching contribution by Verso\nPaper under the Plans. Verso Paper shall contribute on Employee’s behalf the value of his Lost Retirement Benefits to the Verso Paper\nDeferred Compensation Plan in a lump sum payment as soon as reasonably practicable after the determination of the Lost Retirement Benefits\nis made.\n7. Duty to Show Agreement to Prospective Employer. During Employee’s employment with Verso Paper and for twelve (12) months\nthereafter, Employee shall, prior to accepting other employment, provide a copy of this Agreement to any recruiter who assists Employee in locating\nemployment other than with Verso Paper and to any prospective employer with which Employee discusses potential employment.\n8. Representations, Warranties and Acknowledgements. In addition to the representations, warranties and obligations set forth throughout\nthis Agreement, Employee acknowledges that (a) Protected Information is commercially and competitively valuable to Verso Paper and critical to its\nsuccess; (b) the Unauthorized use or disclosure of Protected Information or the violation of the covenants set forth in Sections 2, 3, or 4 would cause\nirreparable harm to Verso Paper; (c) by this Agreement, Verso Paper is taking reasonable steps to protect its legitimate interests in its Protected\nInformation; (d) Employee has developed, or will develop legally unique relationships with customers of Verso Paper; and (e) nothing herein shall\nprohibit Verso Paper from pursuing any remedies whether in law or equity, available to Verso Paper for breach or threatened breach of this\nAgreement. Employee further acknowledges and agrees that as a senior executive of Verso Paper Employee performs unique and valuable services\nto Verso Paper of an intellectual character and that Employee’s services will be difficult for Verso Paper to replace. Employee further acknowledges\nand agrees that Verso Paper is providing Employee with significant consideration in this Agreement for entering into the Agreement and that Verso\nPaper’s remedies for any breach of this Agreement are in addition to and not in place of any other remedies Verso Paper may have at law or equity or\nunder any other agreements.\n9. Section 409A of the Code. The parties hereto acknowledge and agree that, to the extent applicable, this Agreement shall be interpreted in\naccordance with, and incorporate the terms and conditions required by, Section 409A of the Internal Revenue Code of 1986, as amended, and the\nDepartment of Treasury Regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other\nguidance that may be issued after the date hereof (“Section 409A”). Notwithstanding any provision of this Agreement to the contrary, in the event\nthat Verso Paper determines that any amounts payable hereunder will be immediately taxable to Employee under Section 409A, Verso Paper and\nEmployee shall cooperate in good faith to (a) adopt such amendments to this Agreement and appropriate policies and procedures, including\namendments and policies with retroactive effect, that they mutually determine to be necessary or appropriate to preserve the intended tax treatment\nof the benefits provided by this Agreement, to preserve the economic benefits of this Agreement, and to avoid less favorable accounting or tax\nconsequences for Verso Paper and/or (b) take such other actions as mutually determined to be necessary or appropriate to exempt any amounts\npayable hereunder from\n5\nSection 409A or to comply with the requirements of Section 409A and thereby avoid the application of penalty taxes thereunder. In addition, and\nnotwithstanding any provision of this Agreement to the contrary, to the extent subject to Section 409A, payment to a “specified employee” as\ndefined in Section 409A(2)(B)(i) shall not be made before the date which is six (6) months after the date of termination of employment.\n10. General.\n(a) Employee acknowledges and agrees that the parties have attempted to limit Employee’s right to compete only to the extent necessary\nto protect Verso Paper from unfair competition and protect the legitimate interests of Verso Paper. If any provision or clause of this Agreement\nor portion thereof shall be held by any court of competent jurisdiction to be illegal, void or unenforceable in such jurisdiction, the remainder of\nsuch provisions shall not thereby be affected and shall be given full effect, without regard to the invalid portion. It is the intention of the parties\nand Employee agrees, that if any court construes any provision or clause of this Agreement or any portion thereof to be illegal, void or\nunenforceable because of the duration of such provision or the area or matter covered thereby, such court shall reduce the duration, area or\nmatter of such provision and in its reduced form, such provision shall then be enforceable and shall be enforced.\n(b) Employee acknowledges that neither this Agreement nor any provision hereof can be modified, abrogated or waived except in a\nwritten document signed by the Vice President of Human Resource or the President and Chief Executive Officer of Verso Paper, or in the event\nof the absence of either of these executives or the vacancy of either of these positions, such other officer of Verso Paper as Verso Paper’s Board\nof Directors shall designate in writing.\n(c) This Agreement shall be governed by and in accordance with the laws and public policies of the State of Delaware.\n(d) Employee hereby consents to the jurisdiction of and agrees that any claim arising out of or relating to this Agreement may be brought\nin the courts of the State of Delaware.\n(e) This Agreement and any rights thereunder may be assigned by Verso Paper and if so assigned shall operate to protect the Protected\nInformation and relationships of Verso Paper as well as such information and relationships of the assignee.\n(f) Should either party to this Agreement breach any of the terms of this Agreement, that party shall pay to the non-defaulting party all of\nthe non-defaulting party’s costs and expenses, including attorney’s and experts’ fees in enforcing the provisions of the Agreement as to which a\nbreach is found.\n(g) Employee agrees that Verso Paper’s determination not to enforce this or similar agreements as to specific violations shall not operate\nas a waiver or release of Employee’s obligations under this Agreement.\n(h) Employee understands that Employee owes fiduciary and common law duties to Verso Paper in addition to the covenants set forth\nabove prohibiting the misuse or disclosure of trade secrets or confidential information and the unlawful interference with Verso Paper’s\nbusiness and customer relationships.\n(i) Employee acknowledges and agrees that Verso Paper has advised Employee that Employee may consult with an independent attorney\nbefore signing this Agreement.\n6\n(j) This Agreement sets forth the entire agreement of the parties, and fully supersedes any and all prior agreements or understandings\nbetween the parties pertaining to the subject matter hereof.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered effective as of the date first set forth\nabove.\nVERSO PAPER HOLDINGS LLC\nBy: /s/ Michael A. Jackson\nMichael A. Jackson\nPresident and Chief Executive Officer\n/s/ Peter H. Kesser\nPeter H. Kesser\n7\nEXHIBIT A\nEMPLOYMENT-RELATED BENEFITS\nBenefits:\n•\nCoverage under Verso Paper Medical and Dental Plan for Employee and his or her eligible dependents for up to twenty-four (24) months.\n•\nReimbursement for (i) all costs to convert to an individual policy the basic life insurance coverage on Employee’s life only, in such\namount as in effect at termination of employment, and (ii) the premiums necessary to continue such converted coverage for up to twenty-\nfour (24) months. Reimbursement shall be conditioned on Employee providing Verso Paper with satisfactory evidence that the\nconversion costs and premiums have been incurred.\nAdditional Terms and Conditions:\n•\nVerso Paper shall pay Employee an amount equal to the aggregate of any and all federal, state and local income tax imposed on\nEmployee resulting from the benefits set forth above, as determined by Verso Paper in its sole and absolute discretion.\n•\nBenefit coverage/reimbursement is subject to early termination upon Employee’s re-employment with comparable benefits available, as\ndetermined by Verso Paper in its sole and absolute discretion.\n•\nVerso Paper reserves the right to modify, revoke, suspend, terminate or change any or all of its benefit plans, programs or policies, in\nwhole or in part, at any time and from time to time, and with or without notice, provided that any such change or modification is\napplicable to all similarly situated employees of Verso Paper.\n8
+166bf14efa1bffc8a4eb590fd598c7f7.pdf	effective_date jurisdiction party term	EX-10.20 26 dex1020.htm FORM OF CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nEXHIBIT 10.20\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Competition Agreement (the “Agreement”), dated as of September 10, 2008, is by and between Net Talk.com,\nInc., (f/k/a Discover Screens, Inc.), a Florida corporation whose principal place of business is located at 1100 NW 163 Drive Miami, Florida 33169\n(the “Company”) and\n(“Employee”), an individual currently residing at the address set forth on the signature page to this Agreement.\nBACKGROUND INFORMATION\nThe Company wishes to secure the employment services of Employee and Employee is willing to be so employed. In connection with such\nemployment, Employee will receive confidential and proprietary information about the Company and its business affairs during the course of his or\nher employment with the Company. The parties agree that the Confidential Information (as that term is defined below) is a valuable asset of the\nCompany, would allow Employee to unfairly compete against the Company and, if disclosed, would cause the Company significant and irreparable\nharm. As such, as a condition precedent to the Company’s employment of Employee, Employee is required to enter into and execute this Agreement.\nAccordingly, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by each of the parties, the parties\nagree as follows:\nOPERATIVE PROVISIONS\n1. Confidentiality; Return of Company Property. During Employee’s relationship with the Company (including his relationship with the\nCompany prior to the date of this Agreement), Employee has been and/or will be exposed to and has received or will receive confidential and\nproprietary information of the Company or its Affiliates, including but not limited to lists of Customers or proposed Customers, technical\ninformation, computer software, know-how, processes, business and marketing plans, strategies, training and operational procedures, information\nconcerning the Company’s products, promotions, development, financing, business policies and practices, formulae, patterns, compilations,\ndatabases, programs, devices, methods, techniques, or processes, and other forms of information in the nature of trade secrets (collectively, the\n“Confidential Information”). From the date of execution hereof and for as long as the information or data remains Confidential Information,\nEmployee shall not use, disclose, or permit any person to obtain any Confidential Information of the Company. Employee agrees that he will protect\nthe Confidential Information by using all reasonable care, and further agrees that he will not disclose, transfer, use, copy, or allow third parties access\nto any such Confidential Information, except as expressly authorized by the Company. To the extent Confidential Information of the Company does\nnot qualify as a trade secret under applicable law, it will nonetheless be protected under this Agreement. Upon the request of the Company, but in\nany event upon termination of Employee’s employment with the Company, Employee shall surrender to the Company all memoranda, notes, records,\ndrawings, manuals, computer software, and other documents or materials (and all copies thereof) furnished by the Company to the Employee,\nincluding all Confidential Information. This section is intended to apply to all materials made or compiled by Employee, as well as to all materials\nfurnished to Employee by the Company or by anyone else. The obligations of this Section 1 will be in addition to any other agreements that\nEmployee has entered into with the Company regarding the receipt of Confidential Information.\n2. Non-Solicitation; Non-Disparagement. During the term of Employee’s employment with the Company and for the two (2) year period\nfollowing the termination of Employee’s employment with the Company for any or no reason, Employee will not, and Employee will cause his\nAffiliates to not, directly or indirectly: (i) solicit for employment, or employ any person who, at the time of such solicitation or employment, is an\nemployee or independent contractor of the Company or its Affiliates or\n-1-\nwas employed or engaged by the Company or its Affiliates during the twelve month period prior to the solicitation or employment or induce or\nattempt to induce any person to terminate his employment or engagement with the Company or its Affiliates; (ii) do business with or solicit\nCustomers of the Company or its Affiliates, or engage in any activity intended to terminate, disrupt or interfere with the Company or its Affiliate’s\nrelationships with their Customers; or (iii) engage in any conduct or make any statement disparaging or criticizing the Company or its Affiliates, or\nany products or services offered by the Company or its Affiliates.\n3. Non-Competition. During the term of Employee’s employment with the Company and for the two (2) year period following the termination\nof Employee’s employment with the Company for any or no reason, Employee will not, and Employee will cause his Affiliates to not, directly or\nindirectly, alone or in conjunction with any other person or entity, own, manage, operate or control or participate in the ownership, management,\noperation or control of, or become associated, as an employee, director, officer, advisor, agent, consultant, principal, partner, member or independent\ncontractor with or lender to, any person or entity engaged in or aiding others to engage in business competitive with the Company, located anywhere\nin the United States of America.\n4. Divisibility of Covenant Period. If any covenant contained in this Agreement is held to be unreasonable, arbitrary or against public policy,\nsuch covenant shall be considered divisible both as to time, Customers, competitive services and geographical area, such that each month within the\nspecified period shall be deemed a separate period of time, each Customer a separate customer, each competitive service a separate service and each\ngeographical area a separate geographical area, resulting in an intended requirement that the longest lesser time and largest lesser customer base,\nservice offering and geographical area determined not to be unreasonable, arbitrary or against public policy shall remain effective and be specifically\nenforceable against Employee.\n5. Enforcement. Employee acknowledges that (i) the restrictions contained in this Agreement are reasonable in scope and are necessary to\nprotect the Company’s legitimate interests in protecting its business, and (ii) any violation of the restrictions contained in this Agreement will cause\nsignificant and irreparable harm to the Company for which the Company has no adequate remedy at law. The parties agree that damages at law,\nincluding, but not limited to monetary damages, will or may be an insufficient remedy to the Company and that (in addition to any remedies that are\navailable to the Company, all of which shall be deemed to be cumulative and retained by the Company and not waived by the enforcement of any\nremedy available hereunder) the Company shall also be entitled to obtain injunctive relief, including but not limited to a temporary restraining order,\na temporary or preliminary injunction or a permanent injunction, to enforce the provisions of this Agreement, as well as an equitable accounting of\nand constructive trust for all profits or other benefits arising out of or related to any such violation, all of which shall constitute rights and remedies\nto which the Company may be entitled.\n6. Miscellaneous Provisions.\na. Definitions.\ni. Affiliate. The term “Affiliate” when used in this Agreement shall mean any other person or entity that directly or indirectly\ncontrols, or is under common control with, or is controlled by the specified person or entity, and if a person, any member of the immediate family of\nsuch individual. As used in this definition, “control” (including, with its correlative meanings, “controlled by” and “under\n-2-\ncommon control with”) shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether\nthrough ownership of securities or partnership or other ownership interests, by contract, or otherwise) and “immediate family” shall mean any\nparent, child, grandchild, spouse, or sibling.\nii. Customers. The term “Customers” when used in this Agreement shall mean those persons who are or were customers, clients\nor distributors of the Company, predecessors of the Company, or Affiliates of the Company, as well as any prospective customers, clients or\ndistributors of the Company or Affiliates of the Company.\niii. Business Competitive with the Company. The term “business competitive with the Company” when used in this Agreement\nshall mean any business that offers, provides, sells or supplies commercial or residential telecommunication services, including without limitation,\nservices utilizing voice over internet protocol (VoIP) technology, session initiation protocol (SIP) technology, wireless fidelity technology, wireless\nmaximum technology, marine satellite services technology and other similar type technologies.\nb. Notices. All notices under this Agreement shall be in writing and shall be considered as properly given or made if hand delivered, sent\nby certified mail, overnight delivery service, facsimile or e-mail and addressed to the location set forth in the preamble to this Agreement or to such\nother address as any party may have designated by like notice furnished to all other parties hereto. All notices shall be deemed effective when\ndeposited in the U.S. mail, received by an overnight carrier or other delivery service or, when sent by facsimile or e-mail, when confirmation of\ndelivery is obtained by the sender.\nc. Assignment. This Agreement, including, but not limited to the agreements contained in Sections 2 and 3 regarding non-competition,\nnon-disparagement and non-solicitation, shall be assignable by the Company without the need to obtain the consent of Employee. This Agreement\nshall inure to the benefit of and be enforceable by the successors and assigns of the Company, including, without limitation, any successor or assign\nto all or substantially all of the business and/or assets of the Company, whether direct or indirect, by purchase, merger, consolidation, acquisition of\nstock or otherwise.\nd. Application of Florida Law; Jurisdiction. This Agreement, and the application or interpretation thereof, shall be governed exclusively\nby its terms and by the laws of the State of Florida. Venue for all purposes shall be deemed to lie within Hillsborough County, Florida. The parties\nagree that this Agreement is one for performance in Florida. The parties to this Agreement agree that they waive any objection, constitutional,\nstatutory or otherwise, to a Florida court’s exercise of jurisdiction over any dispute between them and specifically consent to the jurisdiction of the\nFlorida courts. By entering into this Agreement, the parties, and each of them understand that they may be called upon to answer a claim asserted in\na Florida court.\ne. Legal Fees and Costs. If a legal action is initiated by any party to this Agreement against the other party arising out of or relating to the\nalleged performance or non-performance of any right or obligation established hereunder, any and all fees, costs and expenses reasonably incurred\nby each successful party or its legal counsel in investigating, preparing for, prosecuting, defending against, or providing evidence, producing\ndocuments or taking any other action in respect of, such action shall be the obligation of and shall be paid or reimbursed by the unsuccessful party.\n-3-\nf. Waiver of Jury Trial. The parties hereby acknowledge that any dispute arising out of this Agreement will necessarily include various\ncomplicated legal and factual issues and therefore knowingly, voluntarily and intentionally waive trial by jury in any litigation in any court with\nrespect to, in connection with or arising out of this Agreement, or the validity, interpretation, or enforcement hereof.\ng. Waiver. The waiver by the Company of a breach of this Agreement shall not be construed as a waiver of any subsequent breach by\nEmployee. The refusal or failure of the Company to enforce the restrictive covenants contained herein or contained in any other similar agreement\nagainst any other employee, agent or independent contractor of the Company, for any reason, shall not constitute a defense to the enforcement of this\nAgreement by the Company against Employee, nor shall it give rise to any claim or cause of action by Employee against the Company.\nh. Acknowledgments. Employee acknowledges that he has been provided with a copy of this Agreement for review prior to signing it,\nthat the Company has encouraged Employee to have this Agreement reviewed by his attorney prior to signing it and that Employee understands the\npurposes and effects of this Agreement.\n[Signature Page Follows]\n-4-\nIN WITNESS WHEREOF, the parties hereto have executed this Confidentiality and Non-Competition Agreement as of the date first written\nabove.\nNET TALK.COM, INC.\nAnastasios Kyriakides, Chief Executive Officer\nEMPLOYEE\nAddress:\nFacsimile:\nPhone:\nEmail:\n[Signature Page to the Confidentiality and Non-Competition Agreement]\n-5-	EX-10.20 26 dex1020.htm FORM OF CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nEXHIBIT 10.20\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Competition Agreement (the “Agreement”), dated as of September 10, 2008, is by and between Net Talk.com,\nInc., (f/k/a Discover Screens, Inc.), a Florida corporation whose principal place of business is located at 1100 NW 163 Drive Miami, Florida 33169\n(the “Company”) and (“Employee”), an individual currently residing at the address set forth on the signature page to this Agreement.\nBACKGROUND INFORMATION\nThe Company wishes to secure the employment services of Employee and Employee is willing to be so employed. In connection with such\nemployment, Employee will receive confidential and proprietary information about the Company and its business affairs during the course of his or\nher employment with the Company. The parties agree that the Confidential Information (as that term is defined below) is a valuable asset of the\nCompany, would allow Employee to unfairly compete against the Company and, if disclosed, would cause the Company significant and irreparable\nharm. As such, as a condition precedent to the Company’s employment of Employee, Employee is required to enter into and execute this Agreement.\nAccordingly, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by each of the parties, the parties\nagree as follows:\nOPERATIVE PROVISIONS\nCompany prior to the date of this Agreement), Employee has been and/or will be exposed to and has received or will receive confidential and\nproprietary information of the Company or its Affiliates, including but not limited to lists of Customers or proposed Customers, technical\ninformation, computer software, know-how, processes, business and marketing plans, strategies, training and operational procedures, information\nconcerning the Company’s products, promotions, development, financing, business policies and practices, formulae, patterns, compilations,\ndatabases, programs, devices, methods, techniques, or processes, and other forms of information in the nature of trade secrets (collectively, the\n“Confidential Information”). From the date of execution hereof and for as long as the information or data remains Confidential Information,\nEmployee shall not use, disclose, or permit any person to obtain any Confidential Information of the Company. Employee agrees that he will protect\nthe Confidential Information by using all reasonable care, and further agrees that he will not disclose, transfer, use, copy, or allow third parties access\nto any such Confidential Information, except as expressly authorized by the Company. To the extent Confidential Information of the Company does\nnot qualify as a trade secret under applicable law, it will nonetheless be protected under this Agreement. Upon the request of the Company, but in\nany event upon termination of Employee’s employment with the Company, Employee shall surrender to the Company all memoranda, notes, records,\ndrawings, manuals, computer software, and other documents or materials (and all copies thereof) furnished by the Company to the Employee,\nincluding all Confidential Information. This section is intended to apply to all materials made or compiled by Employee, as well as to all materials\nfurnished to Employee by the Company or by anyone else. The obligations of this Section 1 will be in addition to any other agreements that\nEmployee has entered into with the Company regarding the receipt of Confidential Information.\n2. Non-Solicitation; Non-Disparagement. During the term of Employee’s employment with the Company and for the two (2) year period\nfollowing the termination of Employee’s employment with the Company for any or no reason, Employee will not, and Employee will cause his\nAffiliates to not, directly or indirectly: (i) solicit for employment, or employ any person who, at the time of such solicitation or employment, is an\nemployee or independent contractor of the Company or its Affiliates or\n-1-\nwas employed or engaged by the Company or its Affiliates during the twelve month period prior to the solicitation or employment or induce or\nattempt to induce any person to terminate his employment or engagement with the Company or its Affiliates; (ii) do business with or solicit\nCustomers of the Company or its Affiliates, or engage in any activity intended to terminate, disrupt or interfere with the Company or its Affiliate’s\nrelationships with their Customers; or (iii) engage in any conduct or make any statement disparaging or criticizing the Company or its Affiliates, or\nany products or services offered by the Company or its Affiliates.\n3. Non-Competition. During the term of Employee’s employment with the Company and for the two (2) year period following the termination\nof Employee’s employment with the Company for any or no reason, Employee will not, and Employee will cause his Affiliates to not, directly or\nindirectly, alone or in conjunction with any other person or entity, own, manage, operate or control or participate in the ownership, management,\noperation or control of, or become associated, as an employee, director, officer, advisor, agent, consultant, principal, partner, member or independent\ncontractor with or lender to, any person or entity engaged in or aiding others to engage in business competitive with the Company, located anywhere\nin the United States of America.\n4. Divisibility of Covenant Period. If any covenant contained in this Agreement is held to be unreasonable, arbitrary or against public policy,\nsuch covenant shall be considered divisible both as to time, Customers, competitive services and geographical area, such that each month within the\nspecified period shall be deemed a separate period of time, each Customer a separate customer, each competitive service a separate service and each\ngeographical area a separate geographical area, resulting in an intended requirement that the longest lesser time and largest lesser customer base,\nservice offering and geographical area determined not to be unreasonable, arbitrary or against public policy shall remain effective and be specifically\nenforceable against Employee.\n5. Enforcement. Employee acknowledges that (i) the restrictions contained in this Agreement are reasonable in scope and are necessary to\nprotect the Company’s legitimate interests in protecting its business, and (ii) any violation of the restrictions contained in this Agreement will cause\nsignificant and irreparable harm to the Company for which the Company has no adequate remedy at law. The parties agree that damages at law,\nincluding, but not limited to monetary damages, will or may be an insufficient remedy to the Company and that (in addition to any remedies that are\navailable to the Company, all of which shall be deemed to be cumulative and retained by the Company and not waived by the enforcement of any\nremedy available hereunder) the Company shall also be entitled to obtain injunctive relief, including but not limited to a temporary restraining order,\na temporary or preliminary injunction or a permanent injunction, to enforce the provisions of this Agreement, as well as an equitable accounting of\nand constructive trust for all profits or other benefits arising out of or related to any such violation, all of which shall constitute rights and remedies\nto which the Company may be entitled.\n6. Miscellaneous Provisions.\na. Definitions.\ni. Affiliate. The term “Affiliate” when used in this Agreement shall mean any other person or entity that directly or indirectly\ncontrols, or is under common control with, or is controlled by the specified person or entity, and if a person, any member of the immediate family of\nsuch individual. As used in this definition, “control” (including, with its correlative meanings, “controlled by” and “under\n \n_2-\ncommon control with”) shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether\nthrough ownership of securities or partnership or other ownership interests, by contract, or otherwise) and “immediate family” shall mean any\nparent, child, grandchild, spouse, or sibling.\nii. Customers. The term “Customers” when used in this Agreement shall mean those persons who are or were customers, clients\nor distributors of the Company, predecessors of the Company, or Affiliates of the Company, as well as any prospective customers, clients or\ndistributors of the Company or Affiliates of the Company.\niii. Business Competitive with the Company. The term “business competitive with the Company” when used in this Agreement\nshall mean any business that offers, provides, sells or supplies commercial or residential telecommunication services, including without limitation,\nservices utilizing voice over internet protocol (VoIP) technology, session initiation protocol (SIP) technology, wireless fidelity technology, wireless\nmaximum technology, marine satellite services technology and other similar type technologies.\nb. Notices. All notices under this Agreement shall be in writing and shall be considered as properly given or made if hand delivered, sent\nby certified mail, overnight delivery service, facsimile or e-mail and addressed to the location set forth in the preamble to this Agreement or to such\nother address as any party may have designated by like notice furnished to all other parties hereto. All notices shall be deemed effective when\ndeposited in the U.S. mail, received by an overnight carrier or other delivery service or, when sent by facsimile or e-mail, when confirmation of\ndelivery is obtained by the sender.\nc. Assignment. This Agreement, including, but not limited to the agreements contained in Sections 2 and 3 regarding non-competition,\nnon-disparagement and non-solicitation, shall be assignable by the Company without the need to obtain the consent of Employee. This Agreement\nshall inure to the benefit of and be enforceable by the successors and assigns of the Company, including, without limitation, any successor or assign\nto all or substantially all of the business and/or assets of the Company, whether direct or indirect, by purchase, merger, consolidation, acquisition of\nstock or otherwise.\nd. Application of Florida Law; Jurisdiction. This Agreement, and the application or interpretation thereof, shall be governed exclusively\nby its terms and by the laws of the State of Florida. Venue for all purposes shall be deemed to lie within Hillsborough County, Florida. The parties\nagree that this Agreement is one for performance in Florida. The parties to this Agreement agree that they waive any objection, constitutional,\nstatutory or otherwise, to a Florida court’s exercise of jurisdiction over any dispute between them and specifically consent to the jurisdiction of the\nFlorida courts. By entering into this Agreement, the parties, and each of them understand that they may be called upon to answer a claim asserted in\na Florida court.\ne. Legal Fees and Costs. If a legal action is initiated by any party to this Agreement against the other party arising out of or relating to the\nalleged performance or non-performance of any right or obligation established hereunder, any and all fees, costs and expenses reasonably incurred\nby each successful party or its legal counsel in investigating, preparing for, prosecuting, defending against, or providing evidence, producing\ndocuments or taking any other action in respect of, such action shall be the obligation of and shall be paid or reimbursed by the unsuccessful party.\n_3-\nf. Waiver of Jury Trial. The parties hereby acknowledge that any dispute arising out of this Agreement will necessarily include various\ncomplicated legal and factual issues and therefore knowingly, voluntarily and intentionally waive trial by jury in any litigation in any court with\nrespect to, in connection with or arising out of this Agreement, or the validity, interpretation, or enforcement hereof.\ng. Waiver. The waiver by the Company of a breach of this Agreement shall not be construed as a waiver of any subsequent breach by\nEmployee. The refusal or failure of the Company to enforce the restrictive covenants contained herein or contained in any other similar agreement\nagainst any other employee, agent or independent contractor of the Company, for any reason, shall not constitute a defense to the enforcement of this\nAgreement by the Company against Employee, nor shall it give rise to any claim or cause of action by Employee against the Company.\nh. Acknowledgments. Employee acknowledges that he has been provided with a copy of this Agreement for review prior to signing it,\nthat the Company has encouraged Employee to have this Agreement reviewed by his attorney prior to signing it and that Employee understands the\npurposes and effects of this Agreement.\n[Signature Page Follows]\n_4-\nIN WITNESS WHEREOF, the parties hereto have executed this Confidentiality and Non-Competition Agreement as of the date first written\nabove.\nNET TALK.COM, INC.\nAnastasios Kyriakides, Chief Executive Officer\nEMPLOYEE\nAddress:\nFacsimile:\nPhone:\nEmail:\n[Signature Page to the Confidentiality and Non-Competition Agreement]\n_5.	EX-10.20 26 dex 1020.htm FORM OF CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nEXHIBIT 10.20\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Competition Agreement (the "Agreement"), dated as of September 10, 2008, is by and between Net Talk.com,\nInc., (f/k/a Discover Screens, Inc.), a Florida corporation whose principal place of business is located at 1100 NW 163 Drive Miami, Florida 33169\n(the "Company.") and ("Employee"), an individual currently residing at the address set forth on the signature page to this Agreement.\nBACKGROUND INFORMATION\nThe Company wishes to secure the employment services of Employee and Employee is willing to be so employed. In connection with such\nemployment, Employee will receive confidential and proprietary information about the Company and its business affairs during the course of his or\nher employment with the Company. The parties agree that the Confidential Information (as that term is defined below) is a valuable asset of the\nCompany, would allow Employee to unfairly compete against the Company and, if disclosed, would cause the Company significant and irreparable\nharm. As such, as a condition precedent to the Company's employment of Employee, Employee is required to enter into and execute this Agreement.\nAccordingly, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by each of the parties, the parties\nagree as follows:\nOPERATIVE PROVISIONS\n1. Confidentiality.; Return of Company Property.. During Employee's relationship with the Company (including his relationship with the\nCompany prior to the date of this Agreement), Employee has been and/or will be exposed to and has received or will receive confidential and\nproprietary information of the Company or its Affiliates, including but not limited to lists of Customers or proposed Customers, technical\ninformation, computer software, know-how, processes, business and marketing plans, strategies, training and operational procedures, information\nconcerning the Company's products, promotions, development, financing, business policies and practices, formulae, patterns, compilations,\ndatabases, programs, devices, methods, techniques, or processes, and other forms of information in the nature of trade secrets (collectively, the\n"Confidential Information"). From the date of execution hereof and for as long as the information or data remains Confidential Information,\nEmployee\nshall\nnot\nuse,\ndisclose,\nor\npermit\nany\nperson\nto\nobtain\nany\nConfidential\nInformation\nof\nthe\nCompany.\nEmployee\nagrees\nthat\nhe\nwill\nprotect\nthe Confidential Information by using all reasonable care, and further agrees that he will not disclose, transfer, use, copy, or allow third parties access\nto any such Confidential Information, except as expressly authorized by the Company. To the extent Confidential Information of the Company does\nnot qualify as a trade secret under applicable law, it will nonetheless be protected under this Agreement. Upon the request of the Company, but in\nany event upon termination of Employee's employment with the Company, Employee shall surrender to the Company all memoranda, notes, records,\ndrawings, manuals, computer software, and other documents or materials (and all copies thereof) furnished by the Company to the Employee,\nincluding all Confidentia Information. This section is intended to apply to all materials made or compiled by Employee, as well as to all materials\nfurnished to Employee by the Company or by anyone else. The obligations of this Section 1 will be in addition to any other agreements that\nEmployee has entered into with the Company regarding the receipt of Confidential Information.\n2. Non-Solicitation; Non-Disparagement. During the term of Employee's employment with the Company and for the two (2) year period\nfollowing the termination of Employee's employment with the Company for any or no reason, Employee will not, and Employee will cause his\nAffiliates to not, directly or indirectly: (i) solicit for employment, or employ any person who, at the time of such solicitation or employment, is an\nemployee or independent contractor of the Company or its Affiliates or\n1\nwas employed or engaged by the Company or its Affiliates during the twelve month period prior to the solicitation or employment or induce\nor\nattempt to induce any person to terminate his employment or engagement with the Company or its Affiliates; (ii) do business with or solicit\nCustomers of the Company or its Affiliates, or engage in any activity intended to terminate, disrupt or interfere with the Company or its Affiliate's\nrelationships with their Customers; or (iii) engage in any conduct or make any statement disparaging or criticizing the Company or its Affiliates, or\nany products or services offered by the Company or its Affiliates.\n3. Non-Competition. During the term of Employee's employment with the Company and for the two (2) year period following the termination\nof Employee's employment with the Company for any or no reason, Employee will not, and Employee will cause his Affiliates to not, directly or\nindirectly, alone or in conjunction with any other person or entity, own, manage, operate or control or participate in the ownership, management,\noperation or control of, or become associated, as an employee, director, officer, advisor, agent, consultant, principal, partner, member or independent\ncontractor with or lender to, any person or entity engaged in or aiding others to engage in business competitive with the Company, located anywhere\nin the United States of America.\n4. Divisibility. of Covenant Period. If any covenant contained in this Agreement is held to be unreasonable, arbitrary or against public policy,\nsuch covenant shall be considered divisible both as to time, Customers, competitive services and geographical area, such that each month within the\nspecified period shall be deemed a separate period of time, each Customer a separate customer, each competitive service a separate service and each\ngeographical area a separate geographical area, resulting in an intended requirement that the longest lesser time and largest lesser customer base,\nservice offering and geographical area determined not to be unreasonable, arbitrary or against public policy shall remain effective and be specifically\nenforceable against Employee.\n5.\nEnforcement. Employee acknowledges that (i) the restrictions contained in this Agreement are reasonable in scope and are necessary\nto\nprotect the Company's legitimate interests in protecting its business, and (ii) any violation of the restrictions contained in this Agreement will cause\nsignificant and irreparable harm to the Company for which the Company has no adequate remedy at law. The parties agree that damages at law,\nincluding, but not limited to monetary damages, will or may be an insufficient remedy to the Company and that (in addition to any remedies that\nare\navailable to the Company, all of which shall be deemed to be cumulative and retained by the Company and not waived by the enforcement of any\nremedy available hereunder) the Company shall also be entitled to obtain injunctive relief, including but not limited to a temporary restraining order,\na temporary or preliminary injunction or a permanent injunction, to enforce the provisions of this Agreement, as well as an equitable accounting of\nand constructive trust for all profits or other benefits arising out of or related to any such violation, all of which shall constitute rights and remedies\nto which the Company may be entitled.\n6. Miscellaneous Provisions.\na. Definitions.\ni. Affiliate. The term "Affiliate" when used in this Agreement shall mean any other person or entity that directly or indirectly\ncontrols, or is under common control with, or is controlled by the specified person or entity, and if a person, any member of the immediate family of\nsuch individual. As used in this definition, "control" (including, with its correlative meanings, "controlled b by." and "under\n2\ncommon control with") shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether\nthrough ownership of securities or partnership or other ownership interests, by contract, or otherwise) and "immediate family." shall mean any\nparent, child, grandchild, spouse, or sibling.\nii. Customers. The term "Customers" when used in this Agreement shall mean those persons who are or were customers, clients\nor distributors of the Company, predecessors of the Company, or Affiliates of the Company, as well as any prospective customers, clients or\ndistributors of the Company or Affiliates of the Company.\niii. Business Competitive with the Company.. The term "business competitive with the Company" when used in this Agreement\nshall mean any business that offers, provides, sells or supplies commercial or residential telecommunication services, including without limitation,\nservices utilizing voice over internet protocol (VoIP) technology, session initiation protocol (SIP) technology, wireless fidelity technology, wireless\nmaximum technology, marine satellite services technology and other similar type technologies.\nb. Notices. All notices under this Agreement shall be in writing and shall be considered as properly given or made if hand delivered, sent\nby\ncertified mail, overnight delivery service, facsimile or e-mail and addressed to the location set forth in the preamble to this Agreement or to such\nother address as any party may have designated by like notice furnished to all other parties hereto. All notices shall be deemed effective when\ndeposited in the U.S. mail, received by an overnight carrier or other delivery service or, when sent by facsimile or e-mail, when confirmation of\ndelivery is obtained by the sender.\nC. Assignment. This Agreement, including, but not limited to the agreements contained in Sections 2 and 3 regarding non-competition,\nnon-disparagement and non-solicitation, shall be assignable by the Company without the need to obtain the consent of Employee. This Agreement\nshall inure to the benefit of and be enforceable by the successors and assigns of the Company, including, without limitation, any successor or assign\nto all or substantially all of the business and/or assets of the Company, whether direct or indirect, by purchase, merger, consolidation, acquisition\nof\nstock or otherwise.\nd.\nApplication of Florida Law; Jurisdiction. This Agreement, and the application or interpretation thereof, shall be governed exclusively\nby\nits terms and by the laws of the State of Florida. Venue for all purposes shall be deemed to lie within Hillsborough County, Florida. The parties\nagree that this Agreement is one for performance in Florida. The parties to this Agreement agree that they waive any objection, constitutional,\nstatutory or otherwise, to a Florida court's exercise of jurisdiction over any dispute between them and specifically consent to the jurisdiction of the\nFlorida courts. By entering into this Agreement, the parties, and each of them understand that they may be called upon to answer a claim asserted in\na Florida court.\ne. Legal Fees and Costs. If a legal action is initiated by any party to this Agreement against the other party arising out of or relating to the\nalleged performance or non-performance of any right or obligation established hereunder, any and all fees, costs and expenses reasonably incurred\nby each successful party or its legal counsel in investigating, preparing for, prosecuting, defending against, or providing evidence, producing\ndocuments or taking any other action in respect of, such action shall be the obligation of and shall be paid or reimbursed by the unsuccessful party.\n3\nf. Waiver of Jury Trial. The parties hereby acknowledge that any dispute arising out of this Agreement will necessarily include various\ncomplicated legal and factual issues and therefore knowingly, voluntarily and intentionally waive trial by jury in any litigation in any court with\nrespect to, in connection with or arising out of this Agreement, or the validity, interpretation, or enforcement hereof.\ng. Waiver. The waiver by the Company of a breach of this Agreement shall not be construed as a waiver of any subsequent breach by\nEmployee. The refusal or failure of the Company to enforce the restrictive covenants contained herein or contained in any other similar agreement\nagainst any other employee, agent or independent contractor of the Company, for any reason, shall not constitute a defense to the enforcement of this\nAgreement by the Company against Employee, nor shall it give rise to any claim or cause of action by Employee against the Company.\nh. Acknowledgments. Employee acknowledges that he has been provided with a copy of this Agreement for review prior to signing it,\nthat the Company has encouraged Employee to have this Agreement reviewed by his attorney prior to signing it and that Employee understands the\npurposes and effects of this Agreement.\n[Signature Page Follows]\n4\nIN WITNESS WHEREOF, the parties hereto have executed this Confidentiality and Non-Competition Agreement as of the date first written\nabove.\nNET TALK.COM, INC.\nAnastasios Kyriakides, Chief Executive Officer\nEMPLOYEE\nAddress:\nFacsimile:\nPhone:\nEmail:\n[Signature Page to the Confidentiality and Non-Competition Agreement]\n- 5	EX-10.20 26 dex1020.htm FORM OF CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nEXHIBIT 10.20\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Competition Agreement (the “Agreement”), dated as of September 10, 2008, is by and between Net Talk.com,\nInc., (f/k/a Discover Screens, Inc.), a Florida corporation whose principal place of business is located at 1100 NW 163 Drive Miami, Florida 33169\n(the “Company”) and\n(“Employee”), an individual currently residing at the address set forth on the signature page to this Agreement.\nBACKGROUND INFORMATION\nThe Company wishes to secure the employment services of Employee and Employee is willing to be so employed. In connection with such\nemployment, Employee will receive confidential and proprietary information about the Company and its business affairs during the course of his or\nher employment with the Company. The parties agree that the Confidential Information (as that term is defined below) is a valuable asset of the\nCompany, would allow Employee to unfairly compete against the Company and, if disclosed, would cause the Company significant and irreparable\nharm. As such, as a condition precedent to the Company’s employment of Employee, Employee is required to enter into and execute this Agreement.\nAccordingly, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by each of the parties, the parties\nagree as follows:\nOPERATIVE PROVISIONS\n1. Confidentiality; Return of Company Property. During Employee’s relationship with the Company (including his relationship with the\nCompany prior to the date of this Agreement), Employee has been and/or will be exposed to and has received or will receive confidential and\nproprietary information of the Company or its Affiliates, including but not limited to lists of Customers or proposed Customers, technical\ninformation, computer software, know-how, processes, business and marketing plans, strategies, training and operational procedures, information\nconcerning the Company’s products, promotions, development, financing, business policies and practices, formulae, patterns, compilations,\ndatabases, programs, devices, methods, techniques, or processes, and other forms of information in the nature of trade secrets (collectively, the\n“Confidential Information”). From the date of execution hereof and for as long as the information or data remains Confidential Information,\nEmployee shall not use, disclose, or permit any person to obtain any Confidential Information of the Company. Employee agrees that he will protect\nthe Confidential Information by using all reasonable care, and further agrees that he will not disclose, transfer, use, copy, or allow third parties access\nto any such Confidential Information, except as expressly authorized by the Company. To the extent Confidential Information of the Company does\nnot qualify as a trade secret under applicable law, it will nonetheless be protected under this Agreement. Upon the request of the Company, but in\nany event upon termination of Employee’s employment with the Company, Employee shall surrender to the Company all memoranda, notes, records,\ndrawings, manuals, computer software, and other documents or materials (and all copies thereof) furnished by the Company to the Employee,\nincluding all Confidential Information. This section is intended to apply to all materials made or compiled by Employee, as well as to all materials\nfurnished to Employee by the Company or by anyone else. The obligations of this Section 1 will be in addition to any other agreements that\nEmployee has entered into with the Company regarding the receipt of Confidential Information.\n2. Non-Solicitation; Non-Disparagement. During the term of Employee’s employment with the Company and for the two (2) year period\nfollowing the termination of Employee’s employment with the Company for any or no reason, Employee will not, and Employee will cause his\nAffiliates to not, directly or indirectly: (i) solicit for employment, or employ any person who, at the time of such solicitation or employment, is an\nemployee or independent contractor of the Company or its Affiliates or\n-1-\nwas employed or engaged by the Company or its Affiliates during the twelve month period prior to the solicitation or employment or induce or\nattempt to induce any person to terminate his employment or engagement with the Company or its Affiliates; (ii) do business with or solicit\nCustomers of the Company or its Affiliates, or engage in any activity intended to terminate, disrupt or interfere with the Company or its Affiliate’s\nrelationships with their Customers; or (iii) engage in any conduct or make any statement disparaging or criticizing the Company or its Affiliates, or\nany products or services offered by the Company or its Affiliates.\n3. Non-Competition. During the term of Employee’s employment with the Company and for the two (2) year period following the termination\nof Employee’s employment with the Company for any or no reason, Employee will not, and Employee will cause his Affiliates to not, directly or\nindirectly, alone or in conjunction with any other person or entity, own, manage, operate or control or participate in the ownership, management,\noperation or control of, or become associated, as an employee, director, officer, advisor, agent, consultant, principal, partner, member or independent\ncontractor with or lender to, any person or entity engaged in or aiding others to engage in business competitive with the Company, located anywhere\nin the United States of America.\n4. Divisibility of Covenant Period. If any covenant contained in this Agreement is held to be unreasonable, arbitrary or against public policy,\nsuch covenant shall be considered divisible both as to time, Customers, competitive services and geographical area, such that each month within the\nspecified period shall be deemed a separate period of time, each Customer a separate customer, each competitive service a separate service and each\ngeographical area a separate geographical area, resulting in an intended requirement that the longest lesser time and largest lesser customer base,\nservice offering and geographical area determined not to be unreasonable, arbitrary or against public policy shall remain effective and be specifically\nenforceable against Employee.\n5. Enforcement. Employee acknowledges that (i) the restrictions contained in this Agreement are reasonable in scope and are necessary to\nprotect the Company’s legitimate interests in protecting its business, and (ii) any violation of the restrictions contained in this Agreement will cause\nsignificant and irreparable harm to the Company for which the Company has no adequate remedy at law. The parties agree that damages at law,\nincluding, but not limited to monetary damages, will or may be an insufficient remedy to the Company and that (in addition to any remedies that are\navailable to the Company, all of which shall be deemed to be cumulative and retained by the Company and not waived by the enforcement of any\nremedy available hereunder) the Company shall also be entitled to obtain injunctive relief, including but not limited to a temporary restraining order,\na temporary or preliminary injunction or a permanent injunction, to enforce the provisions of this Agreement, as well as an equitable accounting of\nand constructive trust for all profits or other benefits arising out of or related to any such violation, all of which shall constitute rights and remedies\nto which the Company may be entitled.\n6. Miscellaneous Provisions.\na. Definitions.\ni. Affiliate. The term “Affiliate” when used in this Agreement shall mean any other person or entity that directly or indirectly\ncontrols, or is under common control with, or is controlled by the specified person or entity, and if a person, any member of the immediate family of\nsuch individual. As used in this definition, “control” (including, with its correlative meanings, “controlled by” and “under\n-2-\ncommon control with”) shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether\nthrough ownership of securities or partnership or other ownership interests, by contract, or otherwise) and “immediate family” shall mean any\nparent, child, grandchild, spouse, or sibling.\nii. Customers. The term “Customers” when used in this Agreement shall mean those persons who are or were customers, clients\nor distributors of the Company, predecessors of the Company, or Affiliates of the Company, as well as any prospective customers, clients or\ndistributors of the Company or Affiliates of the Company.\niii. Business Competitive with the Company. The term “business competitive with the Company” when used in this Agreement\nshall mean any business that offers, provides, sells or supplies commercial or residential telecommunication services, including without limitation,\nservices utilizing voice over internet protocol (VoIP) technology, session initiation protocol (SIP) technology, wireless fidelity technology, wireless\nmaximum technology, marine satellite services technology and other similar type technologies.\nb. Notices. All notices under this Agreement shall be in writing and shall be considered as properly given or made if hand delivered, sent\nby certified mail, overnight delivery service, facsimile or e-mail and addressed to the location set forth in the preamble to this Agreement or to such\nother address as any party may have designated by like notice furnished to all other parties hereto. All notices shall be deemed effective when\ndeposited in the U.S. mail, received by an overnight carrier or other delivery service or, when sent by facsimile or e-mail, when confirmation of\ndelivery is obtained by the sender.\nc. Assignment. This Agreement, including, but not limited to the agreements contained in Sections 2 and 3 regarding non-competition,\nnon-disparagement and non-solicitation, shall be assignable by the Company without the need to obtain the consent of Employee. This Agreement\nshall inure to the benefit of and be enforceable by the successors and assigns of the Company, including, without limitation, any successor or assign\nto all or substantially all of the business and/or assets of the Company, whether direct or indirect, by purchase, merger, consolidation, acquisition of\nstock or otherwise.\nd. Application of Florida Law; Jurisdiction. This Agreement, and the application or interpretation thereof, shall be governed exclusively\nby its terms and by the laws of the State of Florida. Venue for all purposes shall be deemed to lie within Hillsborough County, Florida. The parties\nagree that this Agreement is one for performance in Florida. The parties to this Agreement agree that they waive any objection, constitutional,\nstatutory or otherwise, to a Florida court’s exercise of jurisdiction over any dispute between them and specifically consent to the jurisdiction of the\nFlorida courts. By entering into this Agreement, the parties, and each of them understand that they may be called upon to answer a claim asserted in\na Florida court.\ne. Legal Fees and Costs. If a legal action is initiated by any party to this Agreement against the other party arising out of or relating to the\nalleged performance or non-performance of any right or obligation established hereunder, any and all fees, costs and expenses reasonably incurred\nby each successful party or its legal counsel in investigating, preparing for, prosecuting, defending against, or providing evidence, producing\ndocuments or taking any other action in respect of, such action shall be the obligation of and shall be paid or reimbursed by the unsuccessful party.\n-3-\nf. Waiver of Jury Trial. The parties hereby acknowledge that any dispute arising out of this Agreement will necessarily include various\ncomplicated legal and factual issues and therefore knowingly, voluntarily and intentionally waive trial by jury in any litigation in any court with\nrespect to, in connection with or arising out of this Agreement, or the validity, interpretation, or enforcement hereof.\ng. Waiver. The waiver by the Company of a breach of this Agreement shall not be construed as a waiver of any subsequent breach by\nEmployee. The refusal or failure of the Company to enforce the restrictive covenants contained herein or contained in any other similar agreement\nagainst any other employee, agent or independent contractor of the Company, for any reason, shall not constitute a defense to the enforcement of this\nAgreement by the Company against Employee, nor shall it give rise to any claim or cause of action by Employee against the Company.\nh. Acknowledgments. Employee acknowledges that he has been provided with a copy of this Agreement for review prior to signing it,\nthat the Company has encouraged Employee to have this Agreement reviewed by his attorney prior to signing it and that Employee understands the\npurposes and effects of this Agreement.\n[Signature Page Follows]\n-4-\nIN WITNESS WHEREOF, the parties hereto have executed this Confidentiality and Non-Competition Agreement as of the date first written\nabove.\nNET TALK.COM, INC.\nAnastasios Kyriakides, Chief Executive Officer\nEMPLOYEE\nAddress:\nFacsimile:\nPhone:\nEmail:\n[Signature Page to the Confidentiality and Non-Competition Agreement]\n-5-
+170c3523298f4c60ae0935d7f800330d.pdf	effective_date jurisdiction party term	EX-10.14 2 coup-ex1014_513.htm EX-10.14\nExhibit 10.14\nCoupa Software Incorporated\nDirector Confidentiality Agreement\nThis Director Confidentiality Agreement (“Agreement”) is made by and between Coupa Software\nIncorporated, a Delaware corporation (the “Company”), and the undersigned member of the Board of Directors (the\n“Board”) of the Company (the “Director”), as of the date indicated below.\nRecitals\nWHEREAS, the Company and the Board believe in the importance of protecting and holding confidential all\nnon-public information that the members of the Board obtain due to their directorship position;\nWHEREAS, members of the Board have fiduciary duties under the General Corporation Law of the State of\nDelaware;\nWHEREAS, the Corporate Governance Guidelines adopted by the Board state that, consistent with their\nfiduciary duties, directors are expected to maintain the confidentiality of the information they receive as a director and the\ndeliberations of the Board and its committees; and\nWHEREAS, the Company and the Board desire that each member of the Board enter into this Agreement\nregarding confidentiality in connection with their service on the Board.\nNOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and\nDirector do hereby covenant and agree as follows:\nSection 1.\nAgreement of Confidentiality. Pursuant to the fiduciary duties of loyalty and care, the\nDirector agrees to take reasonable measures to protect and hold confidential all non-public information obtained due to\nhis or her directorship position absent the express permission of the Company to disclose such\ninformation. Accordingly:\n(a)\nthe Director agrees not to use Confidential Information for his or her own personal benefit\nor to benefit persons or entities outside the Company; and\n(b)\nthe Director agrees not to disclose Confidential Information outside the Company, either\nduring or after his or her service as a Director of the Company, except with authorization of the Company or as\nmay be otherwise required by law. For purposes of this Agreement, to the extent applicable, the Company\nauthorizes Director to disclose Confidential Information to the general partners, managing members or other\ncontrol persons and/or any affiliated management companies of his or her venture capital fund on a need to\nknow basis (collectively, the “VC Fund”); provided, however, that the VC Fund shall strictly observe the terms\nof this Agreement.\nSection 2.\n“Confidential Information” includes all non-public information entrusted to or obtained by\nthe Director by reason of his or her position as a member of the Board. It includes, but is not limited to:\na)\nnon-public information that might be of use to competitors or harmful to the Company or its\ncustomers or suppliers if disclosed;\nb)\nnon-public information about the Company’s financial condition, prospects or plans, its\nsales and marketing programs and research and development information, as well as information relating to\nmergers and acquisitions, stock splits and other corporate transactions;\nc)\nnon-public information concerning possible transactions with other companies or\ninformation about the Company’s customers, suppliers or partners, which the Company is under an obligation\nto maintain as confidential; and\nd)\nnon-public information about discussions and deliberations relating to business issues and\ndecisions, between and among employees, officers and the Board.\nSection 3.\nPermitted Communications. Nothing in this Agreement is intended to limit the Director ’s\nability to meet or otherwise communicate with various constituencies that are involved with the Company under the\ncircumstances specified in the Corporate Governance Guidelines or to act as an authorized spokesperson of the Company\npursuant to the Company’s Investor Relations and Communications Policy.\nSection 4.\nModification and Waiver. No supplement, modification or amendment of this Agreement\nshall be binding unless executed in writing by the parties hereto. No waiver of any of the provisions of this Agreement\nshall be deemed or shall constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a\ncontinuing waiver.\nSection 5.\nApplicable Law. This Agreement shall be governed by, and construed and enforced in\naccordance with, the laws of the State of Delaware, without regard to its conflict of laws rules.\nSection 6.\nCounterparts. This Agreement may be executed in one or more counterparts, each of which\nshall for all purposes be deemed to be an original but all of which together shall constitute one and the same\nAgreement.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year written\nbelow.\nCOUPA SOFTWARE INCORPORATED\nDIRECTOR\nBy:\nName:\nName:\nOffice:\nDATE:	EX-10.14 2 coup-ex1014_513.htm EX-10.14\nExhibit 10.14\nCoupa Software Incorporated\nDirector Confidentiality Agreement\nThis Director Confidentiality Agreement (“Agreement”) is made by and between Coupa Software\nIncorporated, a Delaware corporation (the “Company”), and the undersigned member of the Board of Directors (the\n“Board”) of the Company (the “Director”), as of the date indicated below.\nRecitals\nWHEREAS, the Company and the Board believe in the importance of protecting and holding confidential all\nnon-public information that the members of the Board obtain due to their directorship position;\nWHEREAS, members of the Board have fiduciary duties under the General Corporation Law of the State of\nDelaware;\nWHEREAS, the Corporate Governance Guidelines adopted by the Board state that, consistent with their\nfiduciary duties, directors are expected to maintain the confidentiality of the information they receive as a director and the\ndeliberations of the Board and its committees; and\nWHEREAS, the Company and the Board desire that each member of the Board enter into this Agreement\nregarding confidentiality in connection with their service on the Board.\nNOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and\nDirector do hereby covenant and agree as follows:\nSection 1. Agreement of Confidentiality. Pursuant to the fiduciary duties of loyalty and care, the\nDirector agrees to take reasonable measures to protect and hold confidential all non-public information obtained due to\nhis or her directorship position absent the express permission of the Company to disclose such\ninformation. Accordingly:\n(a) the Director agrees not to use Confidential Information for his or her own personal benefit\nor to benefit persons or entities outside the Company; and\n(b) the Director agrees not to disclose Confidential Information outside the Company, either\nduring or after his or her service as a Director of the Company, except with authorization of the Company or as\nmay be otherwise required by law. For purposes of this Agreement, to the extent applicable, the Company\nauthorizes Director to disclose Confidential Information to the general partners, managing members or other\ncontrol persons and/or any affiliated management companies of his or her venture capital fund on a need to\nknow basis (collectively, the “VC Fund”); provided, however, that the VC Fund shall strictly observe the terms\nof this Agreement.\nSection 2. “Confidential Information” includes all non-public information entrusted to or obtained by\nthe Director by reason of his or her position as a member of the Board. It includes, but is not limited to:\na) non-public information that might be of use to competitors or harmful to the Company or its\ncustomers or suppliers if disclosed;\nb) non-public information about the Company’s financial condition, prospects or plans, its\nsales and marketing programs and research and development information, as well as information relating to\nmergers and acquisitions, stock splits and other corporate transactions;\nC) non-public information concerning possible transactions with other companies or\ninformation about the Company’s customers, suppliers or partners, which the Company is under an obligation\nto maintain as confidential; and\nd) non-public information about discussions and deliberations relating to business issues and\ndecisions, between and among employees, officers and the Board.\nSection 3. Permitted Communications. Nothing in this Agreement is intended to limit the Director’s\nability to meet or otherwise communicate with various constituencies that are involved with the Company under the\ncircumstances specified in the Corporate Governance Guidelines or to act as an authorized spokesperson of the Company\npursuant to the Company’s Investor Relations and Communications Policy.\nSection 4. Modification and Waiver. No supplement, modification or amendment of this Agreement\nshall be binding unless executed in writing by the parties hereto. No waiver of any of the provisions of this Agreement\nshall be deemed or shall constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a\ncontinuing waiver.\nSection 5. Applicable Law. This Agreement shall be governed by, and construed and enforced in\naccordance with, the laws of the State of Delaware, without regard to its conflict of laws rules.\nSection 6. Counterparts. This Agreement may be executed in one or more counterparts, each of which\nshall for all purposes be deemed to be an original but all of which together shall constitute one and the same\nAgreement.\nIN WITNESS WHEREQF, the parties have caused this Agreement to be signed as of the day and year written\nbelow.\nCOUPA SOFTWARE INCORPORATED DIRECTOR\nBy:\nName: Name:\nOffice:\nDATE:	EX-10.14 2 coup-ex1014_513.htm EX-10.14\nExhibit 10.14\nCoupa Software Incorporated\nDirector Confidentiality Agreement\nThis Director Confidentiality Agreement ("Agreement") is made by and between Coupa Software\nIncorporated, a Delaware corporation (the "Company"), and the undersigned member of the Board of Directors (the\n"Board") of the Company (the "Director"), as of the date indicated below.\nRecitals\nWHEREAS, the Company and the Board believe in the importance of protecting and holding confidential all\nnon-public information that the members of the Board obtain due to their directorship position;\nWHEREAS, members of the Board have fiduciary duties under the General Corporation Law of the State of\nDelaware;\nWHEREAS, the Corporate Governance Guidelines adopted by the Board state that, consistent with their\nfiduciary duties, directors are expected to maintain the confidentiality of the information they receive as a director and the\ndeliberations of the Board and its committees; and\nWHEREAS, the Company and the Board desire that each member of the Board enter into this Agreement\nregarding confidentiality in connection with their service on the Board.\nNOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and\nDirector do hereby covenant and agree as follows:\nSection 1.\nAgreement of Confidentiality.. Pursuant to the fiduciary duties of loyalty and care, the\nDirector agrees to take reasonable measures to protect and hold confidential all non-public information obtained due to\nhis or her directorship position absent the express permission of the Company to disclose such\ninformation. Accordingly:\n(a)\nthe Director agrees not to use Confidential Information for his or her own personal benefit\nor to benefit persons or entities outside the Company; and\n(b)\nthe Director agrees not to disclose Confidential Information outside the Company, either\nduring or after his or her service as a Director of the Company, except with authorization of the Company\nor\nas\nmay be otherwise required by law. For purposes of this Agreement, to the extent applicable, the Company\nauthorizes Director to disclose Confidential Information to the general partners, managing members or other\ncontrol persons and/or any affiliated management companies of his or her venture capital fund on a need to\nknow basis (collectively, the "VC Fund"); provided, however, that the VC Fund shall strictly observe the terms\nof this Agreement.\nSection 2.\n"Confidential Information" includes all non-public information entrusted to or obtained by\nthe Director by reason of his or her position as a member of the Board. It includes, but is not limited to:\na)\nnon-public information that might be of use to competitors or harmful to the Company or its\ncustomers or suppliers if disclosed;\nb) non-public information about the Company's financial condition, prospects or plans, its\nsales and marketing programs and research and development information, as well as information relating to\nmergers and acquisitions, stock splits and other corporate transactions;\nc) non-public information concerning possible transactions with other companies or\ninformation about the Company's customers, suppliers or partners, which the Company is under an obligation\nto maintain as confidential; and\nd)\nnon-public information about discussions and deliberations relating to business issues and\ndecisions, between and among employees, officers and the Board.\nSection 3.\nPermitted Communications. Nothing in this Agreement is intended to limit the Director's\nability to meet or otherwise communicate with various constituencies that are involved with the Company under the\ncircumstances specified in the Corporate Governance Guidelines or to act as an authorized spokesperson of the Company\npursuant to the Company's Investor Relations and Communications Policy.\nSection 4. Modification and Waiver. No supplement, modification or amendment of this Agreement\nshall be binding unless executed in writing by the parties hereto. No waiver of any of the provisions of this Agreement\nshall be deemed or shall constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a\ncontinuing waiver.\nSection 5.\nApplicable Law. This Agreement shall be governed by, and construed and enforced\nin\naccordance with, the laws of the State of Delaware, without regard to its conflict of laws rules.\nSection 6.\nCounterparts. This Agreement may be executed in one or more counterparts, each of which\nshall for all purposes be deemed to be an original but all of which together shall constitute one and the same\nAgreement.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year written\nbelow.\nCOUPA SOFTWARE INCORPORATED\nDIRECTOR\nBy:\nName:\nName:\nOffice:\nDATE:	EX-10.14 2 coup-ex1014_513.htm EX-10.14\nExhibit 10.14\nCoupa Software Incorporated\nDirector Confidentiality Agreement\nThis Director Confidentiality Agreement (“Agreement”) is made by and between Coupa Software\nIncorporated, a Delaware corporation (the “Company”), and the undersigned member of the Board of Directors (the\n“Board”) of the Company (the “Director”), as of the date indicated below.\nRecitals\nWHEREAS, the Company and the Board believe in the importance of protecting and holding confidential all\nnon-public information that the members of the Board obtain due to their directorship position;\nWHEREAS, members of the Board have fiduciary duties under the General Corporation Law of the State of\nDelaware;\nWHEREAS, the Corporate Governance Guidelines adopted by the Board state that, consistent with their\nfiduciary duties, directors are expected to maintain the confidentiality of the information they receive as a director and the\ndeliberations of the Board and its committees; and\nWHEREAS, the Company and the Board desire that each member of the Board enter into this Agreement\nregarding confidentiality in connection with their service on the Board.\nNOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and\nDirector do hereby covenant and agree as follows:\nSection 1.\nAgreement of Confidentiality. Pursuant to the fiduciary duties of loyalty and care, the\nDirector agrees to take reasonable measures to protect and hold confidential all non-public information obtained due to\nhis or her directorship position absent the express permission of the Company to disclose such\ninformation. Accordingly:\n(a)\nthe Director agrees not to use Confidential Information for his or her own personal benefit\nor to benefit persons or entities outside the Company; and\n(b)\nthe Director agrees not to disclose Confidential Information outside the Company, either\nduring or after his or her service as a Director of the Company, except with authorization of the Company or as\nmay be otherwise required by law. For purposes of this Agreement, to the extent applicable, the Company\nauthorizes Director to disclose Confidential Information to the general partners, managing members or other\ncontrol persons and/or any affiliated management companies of his or her venture capital fund on a need to\nknow basis (collectively, the “VC Fund”); provided, however, that the VC Fund shall strictly observe the terms\nof this Agreement.\nSection 2.\n“Confidential Information” includes all non-public information entrusted to or obtained by\nthe Director by reason of his or her position as a member of the Board. It includes, but is not limited to:\na)\nnon-public information that might be of use to competitors or harmful to the Company or its\ncustomers or suppliers if disclosed;\nb)\nnon-public information about the Company’s financial condition, prospects or plans, its\nsales and marketing programs and research and development information, as well as information relating to\nmergers and acquisitions, stock splits and other corporate transactions;\nc)\nnon-public information concerning possible transactions with other companies or\ninformation about the Company’s customers, suppliers or partners, which the Company is under an obligation\nto maintain as confidential; and\nd)\nnon-public information about discussions and deliberations relating to business issues and\ndecisions, between and among employees, officers and the Board.\nSection 3.\nPermitted Communications. Nothing in this Agreement is intended to limit the Director ’s\nability to meet or otherwise communicate with various constituencies that are involved with the Company under the\ncircumstances specified in the Corporate Governance Guidelines or to act as an authorized spokesperson of the Company\npursuant to the Company’s Investor Relations and Communications Policy.\nSection 4.\nModification and Waiver. No supplement, modification or amendment of this Agreement\nshall be binding unless executed in writing by the parties hereto. No waiver of any of the provisions of this Agreement\nshall be deemed or shall constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a\ncontinuing waiver.\nSection 5.\nApplicable Law. This Agreement shall be governed by, and construed and enforced in\naccordance with, the laws of the State of Delaware, without regard to its conflict of laws rules.\nSection 6.\nCounterparts. This Agreement may be executed in one or more counterparts, each of which\nshall for all purposes be deemed to be an original but all of which together shall constitute one and the same\nAgreement.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year written\nbelow.\nCOUPA SOFTWARE INCORPORATED\nDIRECTOR\nBy:\nName:\nName:\nOffice:\nDATE:
+1833b67588ab0a7bab44938ef295fdb6.pdf	effective_date jurisdiction party term	EX-10.15 2 dex1015.htm NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT\nExhibit 10.15\nRUBICON TECHNOLOGY, INC.\nNON-COMPETITION AGREEMENT\nI,\nHewes, Hap\n,asof\nApril 6th\n, 2005, in consideration and as a condition of my continued employment by\nRubicon Technology, Inc. (the “Company”), my concurrent receipt herewith of an option grant for _230,000_ shares of the Company’s common\nstock and a new annual base salary totaling $_160,000.00_ and the covenants herein contained, hereby enter into this Non-Competition\nAgreement (the “Agreement”) with the Company as follows (and agree that all existing non-competition agreements or similar arrangements\nbetween the Company and myself, except for non-competition agreements entered into between the Company and myself concurrently herewith or\nafter the date hereof and making specific reference to this Agreement, are hereby superseded by this Agreement):\n1. During the course of my employment, I acknowledge and agree that I will have access to the Company’s most highly confidential information and\ntrade secrets concerning the Company’s manufacture, fabrication, growth, production, and polishing of single crystal materials, including, but not\nlimited to, details on the construction of the Company’s furnaces, the specialized changes made to production equipment and the details of the\nCompany’s specialized crystal fabrication processes.\n2. The term of this Agreement shall be for the period commencing on the date of my initial employment with the Company and shall end on the date\nthat is no later than thirty-six (36) months from the date of termination of my employment for any reason; provided, that this Agreement shall remain\nin effect after the termination of my employment only for so long as the Company pays me an amount equal to fifty percent (50%) of my base salary\n(as in effect on the date of my termination), payable on a monthly basis and in accordance with the Company’s standard payroll practices.\n3. During the term hereof, I will not, without the Company’s prior written consent, directly or indirectly, alone or as a partner, joint venturer, officer,\ndirector, employee, consultant, agent, independent contractor or equity holder of any company or business, perform services in any capacity similar\nto that of my employment with the Company or in any managerial or other type of position in which I might, either purposely or inadvertently,\ndisclose the Company’s trade secret information, for any Competitor. As used herein, “Competitor” means any business entity in the business of\ndeveloping, marketing, distributing, maintaining or selling products or services competitive with the products or services being developed, marketed,\ndistributed, planned, sold or otherwise provided by the Company at the date of the termination of my employment, including, but not limited to,\nNamiki, Shinkosha, Monocrystal, Furakawa, Saint-Gobain Crystals Division, Kyocera Fine Ceramics and Honeywell. I acknowledge that the\nownership by me of not more than one percent (1%) of the shares of stock of any corporation having a class of equity securities actively traded on a\nnational securities exchange or on the NASDAQ Stock Market shall not be deemed, in and of itself, to violate the prohibitions of this paragraph.\n4. During the term hereof, I will not, without the Company’s prior written consent, directly or indirectly, employ, solicit to employ, or engage, or\nknowingly permit any other company or business organization which employs me or is directly or indirectly controlled by me to employ, solicit to\nemploy, or engage, any person who is employed by the Company at any time during the\nRUBICON TECHNOLOGY, INC.\n-1-\nNON-COMPETITION AGREEMENT\nterm hereof, or in any manner seek to induce any such person to leave his or her employment with the Company.\n5. During the term hereof, I will not, without the Company’s prior written consent, solicit or do business with, directly or indirectly, any present or\npast customer of the Company (determined at the termination of my employment with the Company), or any prospective customer of the Company\nwith whom I have had contact prior to the termination of my employment with the Company, in connection with any business activity which would\nviolate any other provision of this Agreement.\n6. I hereby represent that I am not a party to, or bound by the terms of, any agreement with any previous employer or other party to refrain from\nusing or disclosing any trade secret or confidential or proprietary information in the course of my employment with the Company or to refrain from\ncompeting, directly or indirectly, with the business of such previous employer or any other party. I further represent that my performance of all the\nterms of this Agreement, and as an employee of the Company, does not and will not breach any agreement to keep in confidence proprietary\ninformation, knowledge or data acquired by me in confidence or in trust prior to my employment with the Company, and I will not disclose to the\nCompany or induce the Company to use any confidential or proprietary information or material belonging to any previous employer, or others.\n7. I acknowledge and agree to the reasonableness, applicability, scope and nature of the terms, conditions and covenants contained in this\nAgreement, and further agree that the time periods and scope specified in this Agreement are appropriate, minimum and reasonable times and scope\nnecessary to protect the Company’s trade secrets and the Company in the conduct of its business. I represent and warrant to the Company that, in the\nevent of enforcement of the provisions of this Agreement, my experience and capabilities are such that I can obtain work or other employment that\nwould not violate any of the provisions of this Agreement and that the enforcement of such provisions by the Company by way of injunction will not\nprevent me from earning a livelihood.\n8. I agree that the breach of this Agreement by me will cause irreparable damage to the Company and that in the event of such breach the Company\nshall have, in addition to any and all remedies of law, the right to an injunction, specific performance or other equitable relief to prevent the violation\nof my obligations hereunder.\n9. I understand that this Agreement does not create an obligation on the Company or any other person or entity to continue my employment.\n10. Any amendment to or modification of this Agreement, and any waiver of any provision hereof, shall be in writing, executed by both parties. Any\nwaiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach\nhereof.\n11. I hereby agree that each provision herein shall be treated as a separate and independent clause, and the unenforceability of any one clause shall in\nno way impair the enforceability of any of the other clauses herein. Moreover, if one or more of the provisions contained in this\nRUBICON TECHNOLOGY, INC.\n-2-\nNON-COMPETITION AGREEMENT\nAgreement shall for any reason be held to be excessively broad as to scope, activity, or subject so as to be unenforceable at law, such provision or\nprovisions shall be construed by the appropriate judicial body by limiting and reducing it or them, so as to be enforceable to the maximum extent\ncompatible with the applicable law as it shall then appear.\n12. This Agreement shall be governed in all respects, whether as to validity, construction, capacity, performance, or otherwise, by the laws of the\nState of Illinois, without regard to the conflict of laws provisions thereof, and no action involving this Agreement may be brought except in the\nCircuit Court of Cook County, Illinois or the United States District Court for the Northern District of Illinois, Eastern Division.\n13. The term “Company” shall include Rubicon Technology, Inc., and any of its predecessors, subsidiaries, subdivisions, affiliates or successors. The\nCompany shall have the right to assign this Agreement to its successors and assigns, and all covenants and agreements hereunder shall inure to the\nbenefit of and be enforceable by said successors or assigns.\n14. Due to the personal nature of this Agreement, I agree that I may not assign or delegate this Agreement or any of my obligations hereunder and\nthat any such attempted assignment or delegation shall be deemed void and of no force or effect.\n15. The provisions of this Agreement will not be deemed to have been violated in the event I participate in, or become an employee of, any affiliate\nof the Company. The provisions of this Agreement will not be deemed to have been violated as a result of any actions taken by me within the\nauthorized scope of my involvement with any such affiliate.\n[Signature Page Follows]\nRUBICON TECHNOLOGY, INC.\n-3-\nNON-COMPETITION AGREEMENT\nIN WITNESS WHEREOF, the parties have executed this Non-Competition Agreement as of the date first above written.\nEMPLOYEE\nRUBICON TECHNOLOGY, INC.\n/s/ Hap Hewes\n/s/ William F. Weissman\nHap Hewes\nWilliam F. Weissman, Chief Financial Officer\nPrinted Name\nName, Title\n[Address]\nRUBICON TECHNOLOGY, INC.\n-4-\nNON-COMPETITION AGREEMENT	EX-10.15 2 dex1015.htm NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT\nExhibit 10.15\nRUBICON TECHNOLOGY, INC.\nNON-COMPETITION AGREEMENT\nI Hewes, Hap , as of April 6th , 2005, in consideration and as a condition of my continued employment by\nRubicon Technology, Inc. (the “Company”), my concurrent receipt herewith of an option grant for _230,000_ shares of the Company’s common\nstock and a new annual base salary totaling $_160,000.00_ and the covenants herein contained, hereby enter into this Non-Competition\nAgreement (the “Agreement”) with the Company as follows (and agree that all existing non-competition agreements or similar arrangements\nbetween the Company and myself, except for non-competition agreements entered into between the Company and myself concurrently herewith or\nafter the date hereof and making specific reference to this Agreement, are hereby superseded by this Agreement):\n \n1. During the course of my employment, I acknowledge and agree that I will have access to the Company’s most highly confidential information and\ntrade secrets concerning the Company’s manufacture, fabrication, growth, production, and polishing of single crystal materials, including, but not\nlimited to, details on the construction of the Company’s furnaces, the specialized changes made to production equipment and the details of the\nCompany’s specialized crystal fabrication processes.\n2. The term of this Agreement shall be for the period commencing on the date of my initial employment with the Company and shall end on the date\nthat is no later than thirty-six (36) months from the date of termination of my employment for any reason; provided, that this Agreement shall remain\nin effect after the termination of my employment only for so long as the Company pays me an amount equal to fifty percent (50%) of my base salary\n(as in effect on the date of my termination), payable on a monthly basis and in accordance with the Company’s standard payroll practices.\n3. During the term hereof, I will not, without the Company’s prior written consent, directly or indirectly, alone or as a partner, joint venturer, officer,\ndirector, employee, consultant, agent, independent contractor or equity holder of any company or business, perform services in any capacity similar\nto that of my employment with the Company or in any managerial or other type of position in which I might, either purposely or inadvertently,\ndisclose the Company’s trade secret information, for any Competitor. As used herein, “Competitor” means any business entity in the business of\ndeveloping, marketing, distributing, maintaining or selling products or services competitive with the products or services being developed, marketed,\ndistributed, planned, sold or otherwise provided by the Company at the date of the termination of my employment, including, but not limited to,\nNamiki, Shinkosha, Monocrystal, Furakawa, Saint-Gobain Crystals Division, Kyocera Fine Ceramics and Honeywell. I acknowledge that the\nownership by me of not more than one percent (1%) of the shares of stock of any corporation having a class of equity securities actively traded on a\nnational securities exchange or on the NASDAQ Stock Market shall not be deemed, in and of itself, to violate the prohibitions of this paragraph.\n4. During the term hereof, I will not, without the Company’s prior written consent, directly or indirectly, employ, solicit to employ, or engage, or\nknowingly permit any other company or business organization which employs me or is directly or indirectly controlled by me to employ, solicit to\nemploy, or engage, any person who is employed by the Company at any time during the\nRUBICON TECHNOLOGY, INC. -1- NON-COMPETITION AGREEMENT\nterm hereof, or in any manner seek to induce any such person to leave his or her employment with the Company.\n5. During the term hereof, I will not, without the Company’s prior written consent, solicit or do business with, directly or indirectly, any present or\npast customer of the Company (determined at the termination of my employment with the Company), or any prospective customer of the Company\nwith whom I have had contact prior to the termination of my employment with the Company, in connection with any business activity which would\nviolate any other provision of this Agreement.\n6. I hereby represent that I am not a party to, or bound by the terms of, any agreement with any previous employer or other party to refrain from\nusing or disclosing any trade secret or confidential or proprietary information in the course of my employment with the Company or to refrain from\ncompeting, directly or indirectly, with the business of such previous employer or any other party. I further represent that my performance of all the\nterms of this Agreement, and as an employee of the Company, does not and will not breach any agreement to keep in confidence proprietary\ninformation, knowledge or data acquired by me in confidence or in trust prior to my employment with the Company, and I will not disclose to the\nCompany or induce the Company to use any confidential or proprietary information or material belonging to any previous employer, or others.\n7.1 acknowledge and agree to the reasonableness, applicability, scope and nature of the terms, conditions and covenants contained in this\nAgreement, and further agree that the time periods and scope specified in this Agreement are appropriate, minimum and reasonable times and scope\nnecessary to protect the Company’s trade secrets and the Company in the conduct of its business. I represent and warrant to the Company that, in the\nevent of enforcement of the provisions of this Agreement, my experience and capabilities are such that I can obtain work or other employment that\nwould not violate any of the provisions of this Agreement and that the enforcement of such provisions by the Company by way of injunction will not\nprevent me from earning a livelihood.\n8. I agree that the breach of this Agreement by me will cause irreparable damage to the Company and that in the event of such breach the Company\nshall have, in addition to any and all remedies of law, the right to an injunction, specific performance or other equitable relief to prevent the violation\nof my obligations hereunder.\n9. I understand that this Agreement does not create an obligation on the Company or any other person or entity to continue my employment.\n10. Any amendment to or modification of this Agreement, and any waiver of any provision hereof, shall be in writing, executed by both parties. Any\nwaiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach\nhereof.\n11. T hereby agree that each provision herein shall be treated as a separate and independent clause, and the unenforceability of any one clause shall in\nno way impair the enforceability of any of the other clauses herein. Moreover, if one or more of the provisions contained in this\nRUBICON TECHNOLOGY, INC. -2- NON-COMPETITION AGREEMENT\nAgreement shall for any reason be held to be excessively broad as to scope, activity, or subject so as to be unenforceable at law, such provision or\nprovisions shall be construed by the appropriate judicial body by limiting and reducing it or them, so as to be enforceable to the maximum extent\ncompatible with the applicable law as it shall then appear.\n12. This Agreement shall be governed in all respects, whether as to validity, construction, capacity, performance, or otherwise, by the laws of the\nState of Illinois, without regard to the conflict of laws provisions thereof, and no action involving this Agreement may be brought except in the\nCircuit Court of Cook County, Illinois or the United States District Court for the Northern District of Illinois, Eastern Division.\n13. The term “Company” shall include Rubicon Technology, Inc., and any of its predecessors, subsidiaries, subdivisions, affiliates or successors. The\nCompany shall have the right to assign this Agreement to its successors and assigns, and all covenants and agreements hereunder shall inure to the\nbenefit of and be enforceable by said successors or assigns.\n14. Due to the personal nature of this Agreement, I agree that I may not assign or delegate this Agreement or any of my obligations hereunder and\nthat any such attempted assignment or delegation shall be deemed void and of no force or effect.\n15. The provisions of this Agreement will not be deemed to have been violated in the event I participate in, or become an employee of, any affiliate\nof the Company. The provisions of this Agreement will not be deemed to have been violated as a result of any actions taken by me within the\nauthorized scope of my involvement with any such affiliate.\n[Signature Page Follows]\nRUBICON TECHNOLOGY, INC. -3- NON-COMPETITION AGREEMENT\nIN WITNESS WHEREOF, the parties have executed this Non-Competition Agreement as of the date first above written. EMPLOYEE\n/s/ Hap Hewes\nHap Hewes\nPrinted Name\n[Address]\nRUBICON TECHNOLOGY, INC. RUBICON TECHNOLOGY, INC.\n/s/ William F. Weissman\nWilliam F. Weissman, Chief Financial Officer\nName, Title\n-4- NON-COMPETITION AGREEMENT	EX-10.15 2 x1015.htm NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT\nExhibit 10.15\nRUBICON TECHNOLOGY, INC.\nNON-COMPETITION AGREEMENT\nI,\nHewes, Hap\nas of\nApril 6th\n2005, in consideration and as a condition of my continued employment by\nRubicon Technology, Inc. (the "Company."), my concurrent receipt herewith of an option grant for _230,000_ s shares of the Company's common\nstock and a new annual base salary totaling $_160,000.00_ and the covenants herein contained, hereby enter into this Non-Competition\nAgreement (the "Agreement") with the Company as follows (and agree that all existing non-competition agreements or similar arrangements\nbetween the Company and myself, except for non-competition agreements entered into between the Company and myself concurrently herewith or\nafter the date hereof and making specific reference to this Agreement, are hereby superseded by this Agreement):\n1. During the course of my employment, I acknowledge and agree that I will have access to the Company's most highly confidential information and\ntrade secrets concerning the Company's manufacture, fabrication, growth, production, and polishing of single crystal materials, including, but not\nlimited to, details on the construction of the Company's furnaces, the specialized changes made to production equipment and the details of the\nCompany's specialized crystal fabrication processes.\n2. The term of this Agreement shall be for the period commencing on the date of my initial employment with the Company and shall end on the date\nthat is no later than thirty-six (36) months from the date of termination of my employment for any reason; provided, that this Agreement shall remain\nin\neffect after the termination of my employment only for so long as the Company pays me an amount equal to fifty percent (50%) of my base salary\n(as in effect on the date of my termination), payable on a monthly basis and in accordance with the Company's standard payroll practices.\n3. During the term hereof, I will not, without the Company's prior written consent, directly or indirectly, alone or as a partner, joint venturer, officer,\ndirector, employee, consultant, agent, independent contractor or equity holder of any company or business, perform services in any capacity similar\nto that of my employment with the Company or in any managerial or other type of position in which I might, either purposely or inadvertently,\ndisclose the Company's trade secret information, for any Competitor. As used herein, "Competitor" means any business entity in the business\nof\ndeveloping, marketing, distributing, maintaining or selling products or services competitive with the products or services being developed, marketed,\ndistributed, planned, sold or otherwise provided by the Company at the date of the termination of my employment, including, but not limited to,\nNamiki, Shinkosha, Monocrystal, Furakawa, Saint-Gobain Crystals Division, Kyocera Fine Ceramics and Honeywell. I acknowledge that the\nownership by me of not more than one percent (1%) of the shares of stock of any corporation having a class of equity securities actively traded on\na\nnational securities exchange or on the NASDAQ Stock Market shall not be deemed, in and of itself, to violate the prohibitions of this paragraph.\n4. During the term hereof, I will not, without the Company's prior written consent, directly or indirectly, employ, solicit to employ, or engage, or\nknowingly permit any other company or business organization which employs me or is directly or indirectly controlled by me to employ, solicit to\nemploy, or engage, any person who is employed by the Company at any time during the\nRUBICON TECHNOLOGY, INC.\n-1-\nNON-COMPETITION AGREEMENT\nterm hereof, or in any manner seek to induce any such person to leave his or her employment with the Company.\n5.\nDuring the term hereof, I will not, without the Company's prior written consent, solicit or do business with, directly or indirectly, any present or\npast customer of the Company (determined at the termination of my employment with the Company), or any prospective customer of the Company\nwith whom I have had contact prior to the termination of my employment with the Company, in connection with any business activity which would\nviolate any other provision of this Agreement.\n6. I hereby represent that I am not a party to, or bound by the terms of, any agreement with any previous employer or other party to refrain from\nusing or disclosing any trade secret or confidential or proprietary information in the course of my employment with the Company or to refrain from\ncompeting, directly or indirectly, with the business of such previous employer or any other party. I further represent that my performance of all the\nterms of this Agreement, and as an employee of the Company, does not and will not breach any agreement to keep in confidence proprietary\ninformation, knowledge or data acquired by me in confidence or in trust prior to my employment with the Company, and I will not disclose\nto\nthe\nCompany or induce the Company to use any confidential or proprietary information or material belonging to any previous employer, or others.\n7.\nI acknowledge and agree to the reasonableness, applicability, scope and nature of the terms, conditions and covenants contained in this\nAgreement, and further agree that the time periods and scope specified in this Agreement are appropriate, minimum and reasonable times and scope\nnecessary to protect the Company's trade secrets and the Company in the conduct of its business. I represent and warrant to the Company that, in the\nevent\nof enforcement of the provisions of this Agreement, my experience and capabilities are such that I can obtain work or other employment that\nwould not violate any of the provisions of this Agreement and that the enforcement of such provisions by the Company by way of injunction will not\nprevent me from earning a livelihood.\n8. I agree that the breach of this Agreement by me will cause irreparable damage to the Company and that in the event of such breach the Company\nshall have, in addition to any and all remedies of law, the right to an injunction, specific performance or other equitable relief to prevent the violation\nof my obligations hereunder.\n9. I understand that this Agreement does not create an obligation on the Company or any other person or entity to continue my employment.\n10. Any amendment to or modification of this Agreement, and any waiver of any provision hereof, shall be in writing, executed by both parties. Any\nwaiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach\nhereof.\n11. I hereby agree that each provision herein shall be treated as a separate and independent clause, and the unenforceability of any one clause shall in\nno way impair the enforceability of any of the other clauses herein. Moreover, if one or more of the provisions contained in this\nRUBICON TECHNOLOGY, INC.\n-2-\nNON-COMPETITION AGREEMENT\nAgreement shall for any reason be held to be excessively broad as to scope, activity, or subject so as to be unenforceable at law, such provision\nor\nprovisions shall be construed by the appropriate judicial body by limiting and reducing it or them, so as to be enforceable to the maximum extent\ncompatible with the applicable law as it shall then appear.\n12. This Agreement shall be governed in all respects, whether as to validity, construction, capacity, performance, or otherwise, by the laws of the\nState of Illinois, without regard to the conflict of laws provisions thereof, and no action involving this Agreement may be brought except in the\nCircuit Court of Cook County, Illinois or the United States District Court for the Northern District of Illinois, Eastern Division.\n13.\nThe term "Company." shall include Rubicon Technology, Inc., and any of its predecessors, subsidiaries, subdivisions, affiliates or successors. The\nCompany shall have the right to assign this Agreement to its successors and assigns, and all covenants and agreements hereunder shall inure to the\nbenefit of and be enforceable by said successors or assigns.\n14. Due to the personal nature of this Agreement, I agree that I may not assign or delegate this Agreement or any of my obligations hereunder and\nthat any such attempted assignment or delegation shall be deemed void and of no force or effect.\n15. The provisions of this Agreement will not be deemed to have been violated in the event I participate in, or become an employee of, any affiliate\nof the Company. The provisions of this Agreement will not be deemed to have been violated as a result of any actions taken by me within the\nauthorized scope of my involvement with any such affiliate.\n[Signature Page Follows]\nRUBICON TECHNOLOGY, INC.\n-3-\nNON-COMPETITION AGREEMENT\nIN WITNESS WHEREOF, the parties have executed this Non-Competition Agreement as of the date first above written.\nEMPLOYEE\nRUBICON TECHNOLOGY, INC.\n/s/ Hap Hewes\n/s/ William F. Weissman\nHap Hewes\nWilliam F. Weissman, Chief Financial Officer\nPrinted Name\nName, Title\n[Address]\nRUBICON TECHNOLOGY, INC.\n-4-\nNON-COMPETITION AGREEMENT	EX-10.15 2 dex1015.htm NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT\nExhibit 10.15\nRUBICON TECHNOLOGY, INC.\nNON-COMPETITION AGREEMENT\nI,\nHewes, Hap\n,asof\nApril 6th\n, 2005, in consideration and as a condition of my continued employment by\nRubicon Technology, Inc. (the “Company”), my concurrent receipt herewith of an option grant for _230,000_ shares of the Company’s common\nstock and a new annual base salary totaling $_160,000.00_ and the covenants herein contained, hereby enter into this Non-Competition\nAgreement (the “Agreement”) with the Company as follows (and agree that all existing non-competition agreements or similar arrangements\nbetween the Company and myself, except for non-competition agreements entered into between the Company and myself concurrently herewith or\nafter the date hereof and making specific reference to this Agreement, are hereby superseded by this Agreement):\n1. During the course of my employment, I acknowledge and agree that I will have access to the Company’s most highly confidential information and\ntrade secrets concerning the Company’s manufacture, fabrication, growth, production, and polishing of single crystal materials, including, but not\nlimited to, details on the construction of the Company’s furnaces, the specialized changes made to production equipment and the details of the\nCompany’s specialized crystal fabrication processes.\n2. The term of this Agreement shall be for the period commencing on the date of my initial employment with the Company and shall end on the date\nthat is no later than thirty-six (36) months from the date of termination of my employment for any reason; provided, that this Agreement shall remain\nin effect after the termination of my employment only for so long as the Company pays me an amount equal to fifty percent (50%) of my base salary\n(as in effect on the date of my termination), payable on a monthly basis and in accordance with the Company’s standard payroll practices.\n3. During the term hereof, I will not, without the Company’s prior written consent, directly or indirectly, alone or as a partner, joint venturer, officer,\ndirector, employee, consultant, agent, independent contractor or equity holder of any company or business, perform services in any capacity similar\nto that of my employment with the Company or in any managerial or other type of position in which I might, either purposely or inadvertently,\ndisclose the Company’s trade secret information, for any Competitor. As used herein, “Competitor” means any business entity in the business of\ndeveloping, marketing, distributing, maintaining or selling products or services competitive with the products or services being developed, marketed,\ndistributed, planned, sold or otherwise provided by the Company at the date of the termination of my employment, including, but not limited to,\nNamiki, Shinkosha, Monocrystal, Furakawa, Saint-Gobain Crystals Division, Kyocera Fine Ceramics and Honeywell. I acknowledge that the\nownership by me of not more than one percent (1%) of the shares of stock of any corporation having a class of equity securities actively traded on a\nnational securities exchange or on the NASDAQ Stock Market shall not be deemed, in and of itself, to violate the prohibitions of this paragraph.\n4. During the term hereof, I will not, without the Company’s prior written consent, directly or indirectly, employ, solicit to employ, or engage, or\nknowingly permit any other company or business organization which employs me or is directly or indirectly controlled by me to employ, solicit to\nemploy, or engage, any person who is employed by the Company at any time during the\nRUBICON TECHNOLOGY, INC.\n-1-\nNON-COMPETITION AGREEMENT\nterm hereof, or in any manner seek to induce any such person to leave his or her employment with the Company.\n5. During the term hereof, I will not, without the Company’s prior written consent, solicit or do business with, directly or indirectly, any present or\npast customer of the Company (determined at the termination of my employment with the Company), or any prospective customer of the Company\nwith whom I have had contact prior to the termination of my employment with the Company, in connection with any business activity which would\nviolate any other provision of this Agreement.\n6. I hereby represent that I am not a party to, or bound by the terms of, any agreement with any previous employer or other party to refrain from\nusing or disclosing any trade secret or confidential or proprietary information in the course of my employment with the Company or to refrain from\ncompeting, directly or indirectly, with the business of such previous employer or any other party. I further represent that my performance of all the\nterms of this Agreement, and as an employee of the Company, does not and will not breach any agreement to keep in confidence proprietary\ninformation, knowledge or data acquired by me in confidence or in trust prior to my employment with the Company, and I will not disclose to the\nCompany or induce the Company to use any confidential or proprietary information or material belonging to any previous employer, or others.\n7. I acknowledge and agree to the reasonableness, applicability, scope and nature of the terms, conditions and covenants contained in this\nAgreement, and further agree that the time periods and scope specified in this Agreement are appropriate, minimum and reasonable times and scope\nnecessary to protect the Company’s trade secrets and the Company in the conduct of its business. I represent and warrant to the Company that, in the\nevent of enforcement of the provisions of this Agreement, my experience and capabilities are such that I can obtain work or other employment that\nwould not violate any of the provisions of this Agreement and that the enforcement of such provisions by the Company by way of injunction will not\nprevent me from earning a livelihood.\n8. I agree that the breach of this Agreement by me will cause irreparable damage to the Company and that in the event of such breach the Company\nshall have, in addition to any and all remedies of law, the right to an injunction, specific performance or other equitable relief to prevent the violation\nof my obligations hereunder.\n9. I understand that this Agreement does not create an obligation on the Company or any other person or entity to continue my employment.\n10. Any amendment to or modification of this Agreement, and any waiver of any provision hereof, shall be in writing, executed by both parties. Any\nwaiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach\nhereof.\n11. I hereby agree that each provision herein shall be treated as a separate and independent clause, and the unenforceability of any one clause shall in\nno way impair the enforceability of any of the other clauses herein. Moreover, if one or more of the provisions contained in this\nRUBICON TECHNOLOGY, INC.\n-2-\nNON-COMPETITION AGREEMENT\nAgreement shall for any reason be held to be excessively broad as to scope, activity, or subject so as to be unenforceable at law, such provision or\nprovisions shall be construed by the appropriate judicial body by limiting and reducing it or them, so as to be enforceable to the maximum extent\ncompatible with the applicable law as it shall then appear.\n12. This Agreement shall be governed in all respects, whether as to validity, construction, capacity, performance, or otherwise, by the laws of the\nState of Illinois, without regard to the conflict of laws provisions thereof, and no action involving this Agreement may be brought except in the\nCircuit Court of Cook County, Illinois or the United States District Court for the Northern District of Illinois, Eastern Division.\n13. The term “Company” shall include Rubicon Technology, Inc., and any of its predecessors, subsidiaries, subdivisions, affiliates or successors. The\nCompany shall have the right to assign this Agreement to its successors and assigns, and all covenants and agreements hereunder shall inure to the\nbenefit of and be enforceable by said successors or assigns.\n14. Due to the personal nature of this Agreement, I agree that I may not assign or delegate this Agreement or any of my obligations hereunder and\nthat any such attempted assignment or delegation shall be deemed void and of no force or effect.\n15. The provisions of this Agreement will not be deemed to have been violated in the event I participate in, or become an employee of, any affiliate\nof the Company. The provisions of this Agreement will not be deemed to have been violated as a result of any actions taken by me within the\nauthorized scope of my involvement with any such affiliate.\n[Signature Page Follows]\nRUBICON TECHNOLOGY, INC.\n-3-\nNON-COMPETITION AGREEMENT\nIN WITNESS WHEREOF, the parties have executed this Non-Competition Agreement as of the date first above written.\nEMPLOYEE\nRUBICON TECHNOLOGY, INC.\n/s/ Hap Hewes\n/s/ William F. Weissman\nHap Hewes\nWilliam F. Weissman, Chief Financial Officer\nPrinted Name\nName, Title\n[Address]\nRUBICON TECHNOLOGY, INC.\n-4-\nNON-COMPETITION AGREEMENT
+1897d60f2aaa58656bc4825339a59266.pdf	effective_date jurisdiction party term	Exhibit B\nNON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is made by and between Heidrick & Struggles, Inc., a Delaware Corporation (hereinafter H&S), and the undersigned (hereinafter “Second Party”).\nWHEREAS, H&S has been investing considerable capital, time and effort in establishing and developing computer programs and hardware configurations to computerize certain areas of its executive recruiting process including, without\nlimitation, H&S’s client/search history, and information relating to individuals who may contact H&S or be contacted by H&S; and has confidential and proprietary information relating thereto; and\nWHEREAS, H&S at times receives information from its clients and others which H&S is obligated to treat as confidential or proprietary; and\nWHEREAS, Second Party in the course of its association with H&S will have access to certain of said confidential and proprietary information pertaining to computer programs and hardware configurations and to the business affairs of\nH&S.\nNOW THEREFORE, in consideration of the mutual covenants and conditions herein contained, and the association with H&S of Second Party, the parties hereto agree as follows:\n1. “ Confidential Information” shall mean information relating to computer programs and hardware configurations of a proprietary and confidential nature, whether communicated orally or in writing, including without limitation, concepts,\ntechniques, new systems-software planning, processes, designs, circuits, cost data, computer programs, and other technical know-how disclosed by H&S to Second Party or obtained by Second Party through observation or examination of\nH&S’s facilities or procedures. Confidential Information shall also include any information of a confidential nature concerning H&S’s financial information, H&S’s clients or the business and employees of H&S and any information H&S\nhas received from others, which H&S is obligated to treat as confidential or proprietary.\n2. Second Party acknowledges that irreparable injury and damage will result from disclosure to third parties, or utilization for purposes other than those connected with its association with H&S, of Confidential Information.\n3. Second Party shall not, without the prior written consent of H&S, disclose any Confidential Information to any third party and shall not use the Confidential Information except pursuant to and in the course of Second Party’s association\nwith H&S, provided, however, that Second Party shall have no liability to H&S under this Agreement with respect to the disclosure and/or use of any such Confidential Information which:\n(a) Second Party can establish has become publicly known without breach of this Agreement by Second Party, or\n(b) has become known by or available to Second Party prior to H&S’s disclosure of such information to Second Party, as evidenced by written documents received by Second Party\n(prior to H&S’s disclosure to Second Party) from anyone, including Second Party’s employees, agents, or representatives, or\n(c) has become known by or available to Second Party subsequent to H&S’s disclosure of such information to Second Party from anyone, including Second Party’s employees, agents, or representatives, where the original source of such\ninformation was not H&S or persons associated or affiliated with H&S.\n4. Second Party agrees that any disclosure of Confidential Information within Second Party’s own company shall be only such as necessary to accomplish the purpose of Second Party’s association with H&S. Second Party shall take all\nsuch security precautions to protect from disclosure and to keep confidential the Confidential Information as may be necessary, including without limitation, protection of documents from theft, unauthorized duplication and discovery of\ncontents, and restrictions of access by other persons to Confidential Information.\n5. Second Party shall return all written material, photographs, and all other documentation made available or supplied by H&S to Second Party, and all copies and reproductions thereof, on request.\n6. Second Party shall not make or use any copies, synopses or summaries of oral or written material, photographs, or any other documentation or information made available or supplied by H&S to Second Party except such as are\nnecessary for Second Party’s association with H&S or as are necessary to accomplish the purpose of Second Party’s association with H&S. Second Party shall not disclose to any third party the fact of Second Party’s relationship with\nH&S unless H&S, in writing, signed by H&S’s President or Secretary, first approves the disclosure.\n7. H&S retains all rights and remedies afforded it under the patent and other laws of the United States and the States thereof, including without limitation any laws designed to protect proprietary or confidential information.\n8. During the term of this agreement Second Party will be prohibited from providing any similar services to the following designated competitors of H&S: Korn/Ferry, Russell Reynolds & Associates, Spencer Stuart, Egon Zehnder\nInternational, Lamalie Amrop International, Ray & Berndston, LAI Ward Howell International, and A.T. Kearney Executive Search, or any other firm engaged in executive search.\n9. This Agreement sets forth the entire agreement and understanding of the parties and merges all prior discussions between them as to Confidential Information. Neither party may be bound by any definition, condition, representation or\nwaiver other than as expressly stated in this Agreement or as subsequently set forth in writing signed by the parties hereto.\n10. This Agreement shall be governed by the laws of the State of Illinois as applied to contracts entered into and to be performed within the State of Illinois.\n11. Second Party’s obligations under this Agreement shall terminate five (5) years from the date the Confidential Information was obtained.\n12. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, administrators, executors, successors and assigns.\nIN WITNESS WHEREOF, the parties hereto have executed this agreement this 16th day of May, 2011.\nHEIDRICK & STRUGGLES, INC .\nBy:\n/s/ L. Kevin Kelly\nSECOND PARTY\nBy:\n/s/ Richard W. Pehlke	Exhibit B\nNON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is made by and between Heidrick & Struggles, Inc., a Delaware Corporation (hereinafter H& S), and the undersigned (hereinafter "Second Party").\nWHEREA S, H&S has been investing considerable capital, time and effort in establishing and developing computer programs and hardware configurations to computerize certain areas of its executive recruiting process including, without\nlimimtion, H&S's clienthearch history, and information relating to individuals who may contact HSrS or be contacted by H&S; and has confidential and propriemry information relating thereto; and\nWHEREA S, H&S at times receives information from its clients and others which H&S is obligated to treat as confidential or propriemry; and\nWHEREA S, Second Party in the course of its association with HSrS will have access to certain of said confidential and proprietary information pertaining to computer programs and hardware configurations and to the business affairs of\nHELSI\nNOW THEREFORE, in consideration of the mutual covenants and conditions herein contained, and the association with HSrS of Second Party, the parties hereto agree as follows:\n1. "Confidential Information” shall mean information relating to computer programs and hardware configurations of a proprietary and confidential nature, whether communicated orally or in writing, including without limitation, concepts,\ntechniques, new systems-software planning, processes, designs, circuits, cost data, computer programs, and other technical know-how disclosed by HSrS to Second Party or obtained by Second Party through observation or examination of\nH&S’s facilities or procedures. Confidential Information shall also include any information of a confidential nature concerning H&S's financial information, HSrS's clients or the business and employees of H&S and any information H&S\nhas received from others, which H&S is obligated to treat as confidential or proprietary.\n2. Second Party acknowledges that irreparable injury and damage will result from disclosure to third parties, or utilization for purposes other than those connected with its association with H&S, of Confidential Information.\n3. Second Party shall not, without the prior written consent of H&S, disclose any Confidential Information to any third party and shall not use the Confidential Information except pursuant to and in the course of Second Party’s association\nwith H&S, provided, however, that Second Party shall have no liability to H&S under this Agreement with respect to the disclosure andjor use of any such Confidential Information which:\n(a) Second Party can establish has become publicly known without breach of this Agreement by Second Party, or\n(b) has become known by or available to Second Party priorto H&S’s disclosure of such information to Second Party, as evidenced by written documents received by Second Party\n(prior to H&S' s disclosure to Second Party) from anyone, including Second Party’s employees, agents, or representatives, or\n(c) has become known by or available to Second Party subsequent to HSrS's disclosure of such information to Second Party from anyone, including Second Party' s employees, agents, or representatives, where the original source of such\ninformation was not H&S or persons associated or affiliated with HSrS.\n4. Second Party agrees that any disclosure of Confidential Information within Second Party' s own company shall be only such as necessary to accomplish the purpose of Second Party's association with H&S. Second Party shall take all\nsuch security precautions to protect from disclosure and to keep confidential the Confidential Information as may be necessary, including without limitation, protection of documents from theft, unauthorized duplication and discovery of\ncontents, and restrictions of access by other persons to Confidential Information.\n5. Second Party shall return all written material, photographs, and all other documentation made available or supplied by H&S to Second Party, and all copies and reproductions thereof, on request\n6. Second Party shall not make or use any copies, synopses or summaries of oral or written material, photographs, or any other documenmtion orinformation made available or supplied by HSrS to Second Party except such as are\nnecessary for Second Party' s association with H&S or as are necessary to accomplish the purpose of Second Party's association with H&S. Second Party shall not disclose to any third party the fact of Second Party’s relationship with\nH&S unless H&S, in writing, signed by HSrS' s President or Secretary, first approves the disclosure.\n7. H&S retains all rights and remedies afforded it under the patent and other laws of the United States and the States thereof, including without limitation any laws designed to protect proprietary or confidential information.\n8. During the term of this agreement Second Party will be prohibited from providing any similar services to the following designated competitors of H&S: Kom/Ferry, Russell Reynolds & Associates, Spencer Stuart, Egon Zehnder\nInternational, Larnalie Amrop International, Ray & Bemdston, LAI Ward Howell International, and AT. Kearney Executive Search, or any other firm engaged in executive search.\n9. This Agreement sets forth the entire agreement and undersmnding of the parties and merges all prior discussions between them as to Confidential Information. Neither party may be bound by any definition, condition, representation or\nwaiver other than as expressly stated in this Agreement or as subsequently set forth in writing signed by the parties hereto.\n10. This Agreement shall be governed by the laws of the State of Illinois as applied to contracts entered into and to be performed within the State of Illinois.\n11. Second Party’s obligations under this Agreement shall terminate five (5) years from the date the Confidential Information was obtained.\n12. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their Iespech've heirs, administrators, executors, successors and assigns\nIN WITNESS WHEREOF, the pariies hereto have executed this agreement this 16th day of May, 2011.\nHEIDRICK & STRUGGLES, INCA\nBy: /S/ L. Kevin Kelly\nSECOND PARTY\nBy: /S/Richa1d W. Pehlke	Exhibit B\nNON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is made by and between Heidrick & Struggles, Inc. a Delaware Corporation (hereinafter H&S), and the undersigned (hereinafter "Second Party").\nWHEREAS, H&S has been investing considerable capital, time and effort in establishing and developing computer programs and hardware configurations to computerize certain areas of its executive recruiting process including, without\nlimitation, H&S's client/search history, and information relating to individuals who may contact H&S or be contacted by H&S; and has confidential and proprietary information relating thereto; and\nWHEREAS, H&S at times receives information from its clients and others which H&S is obligated to treat as confidential or proprietary; and\nWHEREAS, Second Party in the course of its association with H&S wil have access to certain of said confidential and proprietary information pertaining to computer programs and hardware configurations and to the business affairs of\nH&S.\nNOW THEREFORE, in consideration of the mutual covenants and conditions herein contained, and the association with H&S of Second Party, the parties hereto agree as follows:\n1. "Confidential Information" shall mean information relating to computer programs and hardware configurations of a proprietary and confidential nature, whether communicated orally or in writing including without limitation, concepts,\ntechniques, new systems software planning processes, designs, circuits, cost data, computer programs, and other technical know-how disclosed by H&S to Second Party or obtained by Second Party through observation or examination of\nH&S' facilities or procedures. Confidential Information shall also include any information of a confidential nature concering H&S's financial information, H&S's clients or the business and employees of H&S and any information H&S\nhas received from others, which H&S is obligated to treat as confidential or proprietary.\n2. Second Party acknowledges that irreparable injury and damage will result from disclosure to third parties, or utilization for purposes other than those connected with its association with H&S, of Confidential Information.\n3. Second Party shall not, without the prior written consent of H&S, disclose any Confidential Information to any third party and shall not use the Confidential Information except pursuant to and in the course of Second Party's association\nwith H&S, provided, however, that Second Party shal have no liability to H&S under this Agreement with respect to the disclosure and/or use of any such Confidential Information which:\n(a) Second Party can establish has become publicly known without breach of this Agreement by Second Party or\n(b) has become known by or available to Second Party prior to H&S's disclosure of such information to Second Party, as evidenced by written documents received by Second Party\n(prior to H&S's disclosure to Second Party) from anyone, including Second Party's employees agents or representatives, or\n(c) has become known by or available to Second Party subsequent to H&S's disclosure of such information to Second Party from anyone, including Second Party's employees, agents, or representatives, where the original source of such\ninformation was no H&S or persons associated or affiliated with H&S.\n4.\nSecond Party agrees that any disclosure of Confidential Information within Second Party's own company shall be only such as necessary to accomplish the purpose of Second Party's association with H&S Second Party shall take\nall\nsuch security precautions to protect from disclosure and to keep confidential the Confidential Information as may be necessary, including without limitation, protection of documents from theft, unauthorized duplication and discovery of\ncontents, and restrictions of access by other persons to Confidential Information.\n5. Second Party shall return all written material photographs, and all other documentation made available or supplied by H& to Second Party, and all copies and reproductions thereof, on request\n6. Second Party shall not make or use any copies, synopses or summaries of oral or written material, photographs, or any other documentation or information made available or supplied by H&S to Second Party except such as are\nnecessary for Second Party's association with H&S or as are necessary to accomplish the purpose of Second Party's association with H&S Second Party shall not disclose to any third party the fact of Second Party's relationship with\nH&S unless H&S, in writing, signed by H&S's President or Secretary, first approves the disclosure.\n7. .H&S retains all rights and remedies afforded it under the patent and other laws of the United States and the States thereof, including without limitation any laws designed to protect proprietary or confidential information.\n8. During the term of this agreement Second Party will be prohibited from providing any similar services to the following designated competitors of H&S: Kom/Ferry, Russell Reynolds & Associates, Spencer Stuart, Egon Zehnder\nInternational, Lamalie A mrop International, Ray & Bemdston, LAI Ward Howell Interational, and A.T Kearmey Executive Search, or any other firm engaged in executive search\n9. This A greement sets forth the entire agreemen and understanding of the parties and merges all prior discussions between them as to Confidential Information. Neither party may be bound by any definition, condition, representation or\nwaiver other than as expressly stated in this Agreement or as subsequently set forth in writing signed by the parties hereto.\n10. This Agreement shall be governed by the laws of the State of Illinois as applied to contracts entered into and to be performed within the State of Illinois.\n11. Second Party's obligations under this Agreement shall terminate five (5) years from the date the Confidential Information was obtained\n12. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, administrators, executors, successors and assigns.\nIN WITNESS WHEREOF, the parties hereto have executed this agreement this 16th day of May, 2011.\nHEIDRICK & STRUGGLES, INC.\nBy:\nIS/L. Kevin Kelly\nSECOND PARTY\nBy:\n/s/ Richard W. Pehlke	Exhibit B\nNON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is made by and between Heidrick & Struggles, Inc., a Delaware Corporation (hereinafter H&S), and the undersigned (hereinafter “Second Party”).\nWHEREAS, H&S has been investing considerable capital, time and effort in establishing and developing computer programs and hardware configurations to computerize certain areas of its executive recruiting process including, without\nlimitation, H&S’s client/search history, and information relating to individuals who may contact H&S or be contacted by H&S; and has confidential and proprietary information relating thereto; and\nWHEREAS, H&S at times receives information from its clients and others which H&S is obligated to treat as confidential or proprietary; and\nWHEREAS, Second Party in the course of its association with H&S will have access to certain of said confidential and proprietary information pertaining to computer programs and hardware configurations and to the business affairs of\nH&S.\nNOW THEREFORE, in consideration of the mutual covenants and conditions herein contained, and the association with H&S of Second Party, the parties hereto agree as follows:\n1. “ Confidential Information” shall mean information relating to computer programs and hardware configurations of a proprietary and confidential nature, whether communicated orally or in writing, including without limitation, concepts,\ntechniques, new systems-software planning, processes, designs, circuits, cost data, computer programs, and other technical know-how disclosed by H&S to Second Party or obtained by Second Party through observation or examination of\nH&S’s facilities or procedures. Confidential Information shall also include any information of a confidential nature concerning H&S’s financial information, H&S’s clients or the business and employees of H&S and any information H&S\nhas received from others, which H&S is obligated to treat as confidential or proprietary.\n2. Second Party acknowledges that irreparable injury and damage will result from disclosure to third parties, or utilization for purposes other than those connected with its association with H&S, of Confidential Information.\n3. Second Party shall not, without the prior written consent of H&S, disclose any Confidential Information to any third party and shall not use the Confidential Information except pursuant to and in the course of Second Party’s association\nwith H&S, provided, however, that Second Party shall have no liability to H&S under this Agreement with respect to the disclosure and/or use of any such Confidential Information which:\n(a) Second Party can establish has become publicly known without breach of this Agreement by Second Party, or\n(b) has become known by or available to Second Party prior to H&S’s disclosure of such information to Second Party, as evidenced by written documents received by Second Party\n(prior to H&S’s disclosure to Second Party) from anyone, including Second Party’s employees, agents, or representatives, or\n(c) has become known by or available to Second Party subsequent to H&S’s disclosure of such information to Second Party from anyone, including Second Party’s employees, agents, or representatives, where the original source of such\ninformation was not H&S or persons associated or affiliated with H&S.\n4. Second Party agrees that any disclosure of Confidential Information within Second Party’s own company shall be only such as necessary to accomplish the purpose of Second Party’s association with H&S. Second Party shall take all\nsuch security precautions to protect from disclosure and to keep confidential the Confidential Information as may be necessary, including without limitation, protection of documents from theft, unauthorized duplication and discovery of\ncontents, and restrictions of access by other persons to Confidential Information.\n5. Second Party shall return all written material, photographs, and all other documentation made available or supplied by H&S to Second Party, and all copies and reproductions thereof, on request.\n6. Second Party shall not make or use any copies, synopses or summaries of oral or written material, photographs, or any other documentation or information made available or supplied by H&S to Second Party except such as are\nnecessary for Second Party’s association with H&S or as are necessary to accomplish the purpose of Second Party’s association with H&S. Second Party shall not disclose to any third party the fact of Second Party’s relationship with\nH&S unless H&S, in writing, signed by H&S’s President or Secretary, first approves the disclosure.\n7. H&S retains all rights and remedies afforded it under the patent and other laws of the United States and the States thereof, including without limitation any laws designed to protect proprietary or confidential information.\n8. During the term of this agreement Second Party will be prohibited from providing any similar services to the following designated competitors of H&S: Korn/Ferry, Russell Reynolds & Associates, Spencer Stuart, Egon Zehnder\nInternational, Lamalie Amrop International, Ray & Berndston, LAI Ward Howell International, and A.T. Kearney Executive Search, or any other firm engaged in executive search.\n9. This Agreement sets forth the entire agreement and understanding of the parties and merges all prior discussions between them as to Confidential Information. Neither party may be bound by any definition, condition, representation or\nwaiver other than as expressly stated in this Agreement or as subsequently set forth in writing signed by the parties hereto.\n10. This Agreement shall be governed by the laws of the State of Illinois as applied to contracts entered into and to be performed within the State of Illinois.\n11. Second Party’s obligations under this Agreement shall terminate five (5) years from the date the Confidential Information was obtained.\n12. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, administrators, executors, successors and assigns.\nIN WITNESS WHEREOF, the parties hereto have executed this agreement this 16th day of May, 2011.\nHEIDRICK & STRUGGLES, INC .\nBy:\n/s/ L. Kevin Kelly\nSECOND PARTY\nBy:\n/s/ Richard W. Pehlke
+199fba43ae70b39cc4a2b4ebdb96b5df.pdf	effective_date jurisdiction party term	EX-10.2 3 dex102.htm CONFIDENTIALITY, INTELLECTUAL PROPERTY AND NON-COMPETITION\nAGREEMENT\nExhibit 10.2\nCONFIDENTIALITY, INTELLECTUAL PROPERTY\nAND NON-COMPETITION AGREEMENT\nThis CONFIDENTIALITY, INTELLECTUAL PROPERTY AND NON-COMPETITION AGREEMENT (this “Agreement”) is entered\ninto effective for all purposes as of September 7, 2010 by Benny Ward (“Employee”) in favor of BioDelivery Sciences International, Inc., a\nDelaware corporation (the “Company”).\nIn consideration of and as a condition to the Company’s employment of Employee and of Employee providing employment services to the\nCompany, Employee hereby agrees as follows:\n1. Confidentiality. At all times, Employee shall keep confidential, except as the Company may otherwise consent to in writing, and not\ndisclose, or make any use of except for the benefit of the Company, at any time either during or subsequent to performance by Employee of services\nfor the Company, any trade secrets, confidential information, knowledge, data or other information of the Company relating to products, processes,\nknow-how, intellectual property, technical data, designs, formulas, test data, customer lists, business plans, marketing and manufacturing plans and\nstrategies, and pricing strategies or other subject matter pertaining to any business of the Company or any of its partners, customers, consultants,\nlicensors, licensees or affiliates (collectively, the “Confidential Information”), which Employee may produce, obtain or otherwise learn of during\nthe course of Employee’s employment with the Company. The “Confidential Information” shall not include information that is or becomes part of\nthe public domain not as a result of any inaction or action of the Employee. Employee shall not deliver, reproduce, or in any way allow any such\nConfidential Information to be delivered to or used by any third parties for any purpose (including, without limitation, any purpose harmful to or\ncompetetive with the interests of the Company) without the specific direction or consent of a duly authorized representative of the Company.\nEmployee acknowledges and agrees that some of the Confidential Information may be considered “material non-public information” for purposes of\nthe federal securities laws (“Insider Information”) and that the Employee will abide by all securities laws relating to the handling of and acting\nupon Insider Information.\n2. Return of Confidential Material. Upon the termination the Employee’s employment with the Company, Employee shall promptly surrender\nand deliver to the Company all records, materials, equipment, drawings, documents, lab notes and books and data of any nature pertaining to any\nInvention (as defined below) or Confidential Information of the Company or to the services provided by Employee, and Employee will not take or\nretain (in any form or format) any description containing or pertaining to any Confidential Information which Employee may produce or obtain\nduring the course of Employee’s employment with the Company.\n3. Assignment of Inventions and Moral Rights.\n(a) Employee hereby assigns and transfers to the Company, on a perpetual, worldwide and royalty-free basis, Employee’s entire right, title and\ninterest in and to all Inventions. As used in this agreement, the term “Inventions” shall mean all intellectual property, ideas, improvements, designs,\ndiscoveries, developments, drawings, notes, documents, information and/or materials, whether or not patentable and whether or not reduced to\npractice, made or conceived by Employee (whether made solely by Employee or jointly with others) which: (i) occur or are conceived during the\nperiod in which Employee is employed by or performs services for the Company and (ii) which relate in any manner to drug, nutraceuticals, genes,\nvaccines, vitamin or other compound delivery technologies involving liposomes, proteoliposomes, cochleates, buccal, transmucosal, transdermal,\noral or other applications\n1\nand/or derivatives thereof (“Delivery Technologies”), applications of the Delivery Technologies to specific drugs, nutraceuticals, genes, vaccines,\nvitamins or other compounds, or result from any task of any nature assigned to or undertaken by Employee or any work performed by Employee for\nor on behalf of the Company or any of its affiliates.\n(b) Employee hereby irrevocably transfers and assigns to the Company any and all Moral Rights that Employee may have in any Inventions.\nEmployee also hereby forever waives and agrees never to assert against the Company, its successors or licensees any and all Moral Rights which\nEmployee may have in any Inventions, even after termination of Employee’s employment with the Company. For purposes of this Agreement, the\nterm “Moral Rights” means any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any\nsimilar right, existing under the law of any country in the world, or under any treaty.\n4. Disclosure of Inventions. In connection with all Inventions contemplated by Section 3 hereof:\n(a) Employee will disclose all Inventions promptly in writing to the Chief Executive Officer of the Company in order to permit the Company\nto enforce and perfect the rights to which the Company is entitled under this Agreement;\n(b) Employee will, at the Company’s request, promptly execute a written assignment of title to the Company for any Invention, and Employee\nwill preserve all Inventions as Confidential Information in accordance with the terms hereof; and\n(c) Upon request, Employee will assist the Company or its nominee (at the Company’s expense) during and at any time during or subsequent to\nthe performance of services by Employee for the Company in every reasonable way in obtaining for the Company’s own benefit patents and\ncopyrights for all Inventions in any and all countries, which Inventions shall be and remain the sole and exclusive property of the Company or its\nnominee, whether or not patented or copyrighted. Employee will execute such papers and perform such lawful acts as the Company deems to be\nnecessary to allow the Company to exercise all rights, title and interest in such patents and copyrights.\n5. Execution of Documents. In connection with this Agreement, Employee will execute, acknowledge and deliver to the Company or its\nnominee upon request and at the Company’s expense all such documents, including applications for patents and copyrights and assignments of all\nInventions, patents and copyrights to be issued therefore, as the Company may determine necessary or desirable to apply for and obtain letters patent\nand copyrights on all Inventions in any and all countries and/or to protect the interest of the Company or its nominee in Inventions, patents and\ncopyrights and to vest title thereto in the Company or its nominee.\n6. Maintenance of Records. Employee will keep and maintain adequate and current written records of all Inventions made by Employee (in the\nform of notes, sketches, drawings and as may be specified by the Company), which records shall be available to and remain the sole property of the\nCompany at all times.\n7. Prior Inventions. It is understood that all ideas, improvements, designs and discoveries, whether or not patentable and whether or not\nreduced to practice, which Employee made prior to the time the Company and Employee began to consider any possible performance of services by\nEmployee to the Company (herein referred to as “Excluded Inventions”) are excluded from the definition of Inventions as used herein. Set forth on\nExhibit A attached hereto is a complete list of all Excluded Inventions, including numbers of all patents and patent applications, and a brief\ndescription of all unpatented\n2\ninventions which are not the property of another party (including, without limitation, a current or previous contracting party). The list is complete\nand if no items are included on Exhibit A, Employee shall be deemed to have no such prior inventions within the definition of Inventions. Employee\nwill notify the Company in writing before Employee makes any disclosure or performs any work on behalf of the Company which appears to\nthreaten or conflict with proprietary rights Employee claims in any such Invention or idea. In the event of Employee’s failure to give such notice,\nEmployee will make no claim against the Company with respect to any such inventions or ideas.\n8. Other Obligations. Employee acknowledges that the Company, from time to time, may have agreements with other persons or entities or\nwith the U.S . Government, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the\ncourse of work thereunder or regarding the confidential nature of such work. Employee will be bound by all such obligations and restrictions and\nwill take all action necessary to discharge the obligations of the Company thereunder.\n9. Trade Secrets of Others. Employee represents that Employee’s performance of all the terms of this Agreement and as an employee of the\nCompany does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by Employee in\nconfidence or in trust, and Employee will not disclose to the Company, or induce the Company to use, any confidential or proprietary information or\nmaterial belonging to any other person or entity. Employee will not enter into any agreement, either written or oral, in conflict herewith.\n12. Injunctive Relief. Employee agrees that this Agreement is important to and gravely effects the effective and successful conduct of the\nbusiness of the Company, and it effects its reputation and good will, and is necessary to protect the legitimate business interests of the Company.\nEmployee recognizes and agrees that the Company will suffer irreparable injury in the event of Employee’s breach of any covenant or agreement\ncontained herein and cannot be compensated by monetary damages alone. Employee therefore agrees that the Company, in addition to and without\nlimiting any other remedies or rights that it may have, either under this Agreement or otherwise, shall have the right to obtain injunctive relief, both\ntemporary and permanent, against the Employee from any court of competent jurisdiction, without the necessity of proving actual damages and\nwithout the necessity of posting bond or other security. Employee agrees to pay the Company’s reasonable attorney’s fees and costs for enforcement\nof this Agreement, if the Employee breaches this Agreement.\n13. Modification. This Agreement may not be changed, modified, released, discharged, abandoned, or otherwise amended, in whole or in part,\nexcept by an instrument in writing, signed by Employee and by the Company. Any subsequent change or changes in the relationship between the\nCompany and Employee or in Employee’s compensation by the Company shall not affect the validity or scope of this Agreement.\n14. Reasonable Terms. Employee acknowledges and agrees that the restrictive covenants contained in this Agreement have been reviewed by\nEmployee with the benefit of counsel and that such covenants are reasonable in all of the circumstances for the protection of the legitimate business\ninterests of the Company.\n15. Entire Agreement. Employee acknowledges receipt of this Agreement, and agrees that with respect to the subject matter thereof it is\nEmployee’s entire agreement with the Company, superseding any previous oral or written communications, representations, understandings, or\nagreements with the Company or any officer or representative thereof.\n3\n16. Severabilitv. In the event that any paragraph or provision of this Agreement shall be held to be illegal or unenforceable, the entire\nAgreement shall not fail on account thereof. It is further agreed that if any one or more of such paragraphs or provisions shall be judged to be void as\ngoing beyond what is reasonable in all of the circumstances for the protection of the interests of the Company, but would be valid if part of the\nwording thereof were deleted or the period thereof reduced or the range of activities covered thereby reduced in scope, the said reduction shall be\ndeemed to apply with such modifications as may be necessary to make them valid and effective and any such modification shall not thereby affect\nthe validity of any other paragraph or provisions contained in this Agreement.\n17. Successors and Assigns. This Agreement shall be binding upon the heirs, executors, administrators or other legal representatives of\nEmployee and is for the benefit of the Company, its successors and assigns. Employee may not assign Employee’s rights or delegate Employee’s\nduties under this Agreement either in whole or in part without the prior written consent of the Company. Any attempted assignment or delegation\nwithout such consent will be null and void.\n18. Governing Law. This Agreement shall be governed by the laws of the State of Delaware except for any conflicts of law rules thereof which\nmight direct the application of the substantive laws of another state.\n19. Counterparts. This Agreement may be signed in two counterparts, each of which may be delivered by facsimile or other electronic\ntransmission and each of which shall be deemed an original and both of which shall together constitute one agreement.\nEXECUTED as of the date set forth below.\n/s/ Benny Ward\nBenny Ward\nAccepted and Agreed:\nBIODELIVERY SCIENCES INTERNATIONAL, INC.\nBy: /s/ Mark A. Sirgo\nName: Mark A. Sirgo\nTitle: President and CEO\n[Signature Page to Confidentiality, Intellectual Property and Non-Competition Agreement]\n4\nEXHIBIT A TO\nCONFIDENTIALITY, INTELLECTUAL PROPERTY\nAND NON-COMPETITION AGREEMENT\nPRIOR INVENTIONS WITHIN THE SCOPE OF ASSIGNMENT\nThe following is a complete list of all inventions or improvements patented or, unpatented, that have been made or conceived or first reduced\nto practice by the undersigned alone or jointly with others prior to the time the Company and the undersigned first began to consider the\nundersigned’s performance of services for the Company. The undersigned desires to remove the inventions and improvements listed, if any, from the\noperation of the foregoing Agreement.\nCheck one:\nx\nNo inventions or improvements.\n̈\nAs follows:\nAdditional sheets attached.\nDated: September 7, 2010 /s/ Benny Ward\nBenny Ward	EX-10.2 3 dex102.htm CONFIDENTIALITY, INTELLECTUAL PROPERTY AND NON-COMPETITION\nAGREEMENT\nExhibit 10.2\nCONFIDENTIALITY, INTELLECTUAL PROPERTY\nAND NON-COMPETITION AGREEMENT\nThis CONFIDENTIALITY, INTELLECTUAL PROPERTY AND NON-COMPETITION AGREEMENT (this “Agreement”) is entered\ninto effective for all purposes as of September 7, 2010 by Benny Ward (“Employee”) in favor of BioDelivery Sciences International, Inc., a\nDelaware corporation (the “Company”).\nIn consideration of and as a condition to the Company’s employment of Employee and of Employee providing employment services to the\nCompany, Employee hereby agrees as follows:\n1. Confidentiality. At all times, Employee shall keep confidential, except as the Company may otherwise consent to in writing, and not\ndisclose, or make any use of except for the benefit of the Company, at any time either during or subsequent to performance by Employee of services\nfor the Company, any trade secrets, confidential information, knowledge, data or other information of the Company relating to products, processes,\nknow-how, intellectual property, technical data, designs, formulas, test data, customer lists, business plans, marketing and manufacturing plans and\nstrategies, and pricing strategies or other subject matter pertaining to any business of the Company or any of its partners, customers, consultants,\nlicensors, licensees or affiliates (collectively, the “Confidential Information”), which Employee may produce, obtain or otherwise learn of during\nthe course of Employee’s employment with the Company. The “Confidential Information” shall not include information that is or becomes part of\nthe public domain not as a result of any inaction or action of the Employee. Employee shall not deliver, reproduce, or in any way allow any such\nConfidential Information to be delivered to or used by any third parties for any purpose (including, without limitation, any purpose harmful to or\ncompetetive with the interests of the Company) without the specific direction or consent of a duly authorized representative of the Company.\nEmployee acknowledges and agrees that some of the Confidential Information may be considered “material non-public information” for purposes of\nthe federal securities laws (“Insider Information™) and that the Employee will abide by all securities laws relating to the handling of and acting\nupon Insider Information.\n2. Return of Confidential Material. Upon the termination the Employee’s employment with the Company, Employee shall promptly surrender\nand deliver to the Company all records, materials, equipment, drawings, documents, lab notes and books and data of any nature pertaining to any\nInvention (as defined below) or Confidential Information of the Company or to the services provided by Employee, and Employee will not take or\nretain (in any form or format) any description containing or pertaining to any Confidential Information which Employee may produce or obtain\nduring the course of Employee’s employment with the Company.\n3. Assignment of Inventions and Moral Rights.\n(a) Employee hereby assigns and transfers to the Company, on a perpetual, worldwide and royalty-free basis, Employee’s entire right, title and\ninterest in and to all Inventions. As used in this agreement, the term “Inventions” shall mean all intellectual property, ideas, improvements, designs,\ndiscoveries, developments, drawings, notes, documents, information and/or materials, whether or not patentable and whether or not reduced to\npractice, made or conceived by Employee (whether made solely by Employee or jointly with others) which: (i) occur or are conceived during the\nperiod in which Employee is employed by or performs services for the Company and (ii) which relate in any manner to drug, nutraceuticals, genes,\nvaccines, vitamin or other compound delivery technologies involving liposomes, proteoliposomes, cochleates, buccal, transmucosal, transdermal,\noral or other applications\nand/or derivatives thereof (“Delivery Technologies”), applications of the Delivery Technologies to specific drugs, nutraceuticals, genes, vaccines,\nvitamins or other compounds, or result from any task of any nature assigned to or undertaken by Employee or any work performed by Employee for\nor on behalf of the Company or any of its affiliates.\n(b) Employee hereby irrevocably transfers and assigns to the Company any and all Moral Rights that Employee may have in any Inventions.\nEmployee also hereby forever waives and agrees never to assert against the Company, its successors or licensees any and all Moral Rights which\nEmployee may have in any Inventions, even after termination of Employee’s employment with the Company. For purposes of this Agreement, the\nterm “Moral Rights” means any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any\nsimilar right, existing under the law of any country in the world, or under any treaty.\n4. Disclosure of Inventions. In connection with all Inventions contemplated by Section 3 hereof:\n(a) Employee will disclose all Inventions promptly in writing to the Chief Executive Officer of the Company in order to permit the Company\nto enforce and perfect the rights to which the Company is entitled under this Agreement;\n(b) Employee will, at the Company’s request, promptly execute a written assignment of title to the Company for any Invention, and Employee\nwill preserve all Inventions as Confidential Information in accordance with the terms hereof; and\n(c) Upon request, Employee will assist the Company or its nominee (at the Company’s expense) during and at any time during or subsequent to\nthe performance of services by Employee for the Company in every reasonable way in obtaining for the Company’s own benefit patents and\ncopyrights for all Inventions in any and all countries, which Inventions shall be and remain the sole and exclusive property of the Company or its\nnominee, whether or not patented or copyrighted. Employee will execute such papers and perform such lawful acts as the Company deems to be\nnecessary to allow the Company to exercise all rights, title and interest in such patents and copyrights.\n5. Execution of Documents. In connection with this Agreement, Employee will execute, acknowledge and deliver to the Company or its\nnominee upon request and at the Company’s expense all such documents, including applications for patents and copyrights and assignments of all\nInventions, patents and copyrights to be issued therefore, as the Company may determine necessary or desirable to apply for and obtain letters patent\nand copyrights on all Inventions in any and all countries and/or to protect the interest of the Company or its nominee in Inventions, patents and\ncopyrights and to vest title thereto in the Company or its nominee.\n6. Maintenance of Records. Employee will keep and maintain adequate and current written records of all Inventions made by Employee (in the\nform of notes, sketches, drawings and as may be specified by the Company), which records shall be available to and remain the sole property of the\nCompany at all times.\n7. Prior Inventions. It is understood that all ideas, improvements, designs and discoveries, whether or not patentable and whether or not\nreduced to practice, which Employee made prior to the time the Company and Employee began to consider any possible performance of services by\nEmployee to the Company (herein referred to as “Excluded Inventions”) are excluded from the definition of Inventions as used herein. Set forth on\nExhibit A attached hereto is a complete list of all Excluded Inventions, including numbers of all patents and patent applications, and a brief\ndescription of all unpatented\ninventions which are not the property of another party (including, without limitation, a current or previous contracting party). The list is complete\nand if no items are included on Exhibit A, Employee shall be deemed to have no such prior inventions within the definition of Inventions. Employee\nwill notify the Company in writing before Employee makes any disclosure or performs any work on behalf of the Company which appears to\nthreaten or conflict with proprietary rights Employee claims in any such Invention or idea. In the event of Employee’s failure to give such notice,\nEmployee will make no claim against the Company with respect to any such inventions or ideas.\n8. Other Obligations. Employee acknowledges that the Company, from time to time, may have agreements with other persons or entities or\nwith the U.S. Government, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the\ncourse of work thereunder or regarding the confidential nature of such work. Employee will be bound by all such obligations and restrictions and\nwill take all action necessary to discharge the obligations of the Company thereunder.\n9. Trade Secrets of Others. Employee represents that Employee’s performance of all the terms of this Agreement and as an employee of the\nCompany does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by Employee in\nconfidence or in trust, and Employee will not disclose to the Company, or induce the Company to use, any confidential or proprietary information or\nmaterial belonging to any other person or entity. Employee will not enter into any agreement, either written or oral, in conflict herewith.\n12. Injunctive Relief. Employee agrees that this Agreement is important to and gravely effects the effective and successful conduct of the\nbusiness of the Company, and it effects its reputation and good will, and is necessary to protect the legitimate business interests of the Company.\nEmployee recognizes and agrees that the Company will suffer irreparable injury in the event of Employee’s breach of any covenant or agreement\ncontained herein and cannot be compensated by monetary damages alone. Employee therefore agrees that the Company, in addition to and without\nlimiting any other remedies or rights that it may have, either under this Agreement or otherwise, shall have the right to obtain injunctive relief, both\ntemporary and permanent, against the Employee from any court of competent jurisdiction, without the necessity of proving actual damages and\nwithout the necessity of posting bond or other security. Employee agrees to pay the Company’s reasonable attorney’s fees and costs for enforcement\nof this Agreement, if the Employee breaches this Agreement.\n13. Modification. This Agreement may not be changed, modified, released, discharged, abandoned, or otherwise amended, in whole or in part,\nexcept by an instrument in writing, signed by Employee and by the Company. Any subsequent change or changes in the relationship between the\nCompany and Employee or in Employee’s compensation by the Company shall not affect the validity or scope of this Agreement.\n14. Reasonable Terms. Employee acknowledges and agrees that the restrictive covenants contained in this Agreement have been reviewed by\nEmployee with the benefit of counsel and that such covenants are reasonable in all of the circumstances for the protection of the legitimate business\ninterests of the Company.\n15. Entire Agreement. Employee acknowledges receipt of this Agreement, and agrees that with respect to the subject matter thereof it is\nEmployee’s entire agreement with the Company, superseding any previous oral or written communications, representations, understandings, or\nagreements with the Company or any officer or representative thereof.\n16. Severabilitv. In the event that any paragraph or provision of this Agreement shall be held to be illegal or unenforceable, the entire\nAgreement shall not fail on account thereof. It is further agreed that if any one or more of such paragraphs or provisions shall be judged to be void as\ngoing beyond what is reasonable in all of the circumstances for the protection of the interests of the Company, but would be valid if part of the\nwording thereof were deleted or the period thereof reduced or the range of activities covered thereby reduced in scope, the said reduction shall be\ndeemed to apply with such modifications as may be necessary to make them valid and effective and any such modification shall not thereby affect\nthe validity of any other paragraph or provisions contained in this Agreement.\n17. Successors and Assigns. This Agreement shall be binding upon the heirs, executors, administrators or other legal representatives of\nEmployee and is for the benefit of the Company, its successors and assigns. Employee may not assign Employee’s rights or delegate Employee’s\nduties under this Agreement either in whole or in part without the prior written consent of the Company. Any attempted assignment or delegation\nwithout such consent will be null and void.\n18. Governing Law. This Agreement shall be governed by the laws of the State of Delaware except for any conflicts of law rules thereof which\nmight direct the application of the substantive laws of another state.\n19. Counterparts. This Agreement may be signed in two counterparts, each of which may be delivered by facsimile or other electronic\ntransmission and each of which shall be deemed an original and both of which shall together constitute one agreement.\nEXECUTED as of the date set forth below.\n/s/ Benny Ward\nBenny Ward\nAccepted and Agreed:\nBIODELIVERY SCIENCES INTERNATIONAL, INC.\nBy: /s/ Mark A. Sirgo\nName: Mark A. Sirgo\nTitle: President and CEO\n[Signature Page to Confidentiality, Intellectual Property and Non-Competition Agreement]\n4\nEXHIBIT A TO\nCONFIDENTIALITY, INTELLECTUAL PROPERTY\nAND NON-COMPETITION AGREEMENT\nPRIOR INVENTIONS WITHIN THE SCOPE OF ASSIGNMENT\nThe following is a complete list of all inventions or improvements patented or, unpatented, that have been made or conceived or first reduced\nto practice by the undersigned alone or jointly with others prior to the time the Company and the undersigned first began to consider the\nundersigned’s performance of services for the Company. The undersigned desires to remove the inventions and improvements listed, if any, from the\noperation of the foregoing Agreement.\nCheck one:\nX No inventions or improvements.\nAs follows:\nAdditional sheets attached.\nDated: September 7, 2010  /s/ Benny Ward\nBenny Ward	EX-10.2 3 dex102.htm CONFIDENTIALITY, INTELLECTUAL PROPERTY AND NON-COMPETITION\nAGREEMENT\nExhibit 10.2\nCONFIDENTIALITY, INTELLECTUAL PROPERTY\nAND NON-COMPETITION AGREEMENT\nThis CONFIDENTIALITY, INTELLECTUAL PROPERTY AND NON-COMPETITION AGREEMENT (this "Agreement") is entered\ninto effective for all purposes as of September 7, 2010 by Benny Ward ("Employee") in favor of BioDelivery Sciences International, Inc., a\nDelaware corporation (the "Company").\nIn consideration of and as a condition to the Company's employment of Employee and of Employee providing employment services to the\nCompany, Employee hereby agrees as follows:\n1. Confidentiality.. At all times, Employee shall keep confidential, except as the Company may otherwise consent to in writing, and not\ndisclose, or make any use of except for the benefit of the Company, at any time either during or subsequent to performance by Employee of services\nfor the Company, any trade secrets, confidential information, knowledge, data or other information of the Company relating to products, processes,\nknow-how, intellectual property, technical data, designs, formulas, test data, customer lists, business plans, marketing and manufacturing plans and\nstrategies, and pricing strategies or other subject matter pertaining to any business of the Company or any of its partners, customers, consultants,\nlicensors, licensees or affiliates (collectively, the "Confidential Information"), which Employee may produce, obtain or otherwise learn of during\nthe\ncourse of Employee's employment with the Company. The "Confidential Information" shall not include information that is or becomes part\nof\nthe public domain not as a result of any inaction or action of the Employee. Employee shall not deliver, reproduce, or in any way allow any such\nConfidential Information to be delivered to or used by any third parties for any purpose (including, without limitation, any purpose harmful to\nor\ncompetetive with the interests of the Company) without the specific direction or consent of a duly authorized representative of the Company.\nEmployee acknowledges and agrees that some of the Confidential Information may be considered "material non-public information" for purposes\nof\nthe federal securities laws ("Insider Information") and that the Employee will abide by all securities laws relating to the handling of and acting\nupon Insider Information.\n2. Return of Confidential Material. Upon the termination the Employee's employment with the Company, Employee shall promptly surrender\nand deliver to the Company all records, materials, equipment, drawings, documents, lab notes and books and data of any nature pertaining to any\nInvention (as defined below) or Confidential Information of the Company or to the services provided by Employee, and Employee will not take or\nretain (in any form or format) any description containing or pertaining to any Confidential Information which Employee may produce or obtain\nduring the course of Employee's employment with the Company.\n3. Assignment of Inventions and Moral Rights.\n(a) Employee hereby assigns and transfers to the Company, on a perpetual, worldwide and royalty-free basis, Employee's entire right, title and\ninterest in and to all Inventions. As used in this agreement, the term "Inventions" shall mean all intellectual property, ideas, improvements, designs,\ndiscoveries, developments, drawings, notes, documents, information and/or materials, whether or not patentable and whether or not reduced to\npractice, made or conceived by Employee (whether made solely by Employee or jointly with others) which: (i) occur or are conceived during the\nperiod in which Employee is employed by or performs services for the Company and (ii) which relate in any manner to drug, nutraceuticals, genes,\nvaccines, vitamin or other compound delivery technologies involving liposomes, proteoliposomes, cochleates, buccal, transmucosal, transdermal,\noral or other applications\n1\nand/or derivatives thereof ("Delivery Technologies"), applications of the Delivery Technologies to specific drugs, nutraceuticals, genes, vaccines,\nvitamins or other compounds, or result from any task of any nature assigned to or undertaken by Employee or any work performed by Employee for\nor on behalf of the Company or any of its affiliates.\n(b) Employee hereby irrevocably transfers and assigns to the Company any and all Moral Rights that Employee may have in any Inventions.\nEmployee\nalso\nhereby\nforever\nwaives\nand\nagrees\nnever\nto\nassert\nagainst\nthe\nCompany,\nits\nsuccessors\nor\nlicensees\nany\nand\nall\nMoral\nRights\nwhich\nEmployee may have in any Inventions, even after termination of Employee's employment with the Company. For purposes of this Agreement, the\nterm "Moral Rights" means any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any\nsimilar right, existing under the law of any country in the world, or under any treaty.\n4. Disclosure of Inventions. In connection with all Inventions contemplated by Section 3 hereof:\n(a) Employee will disclose all Inventions promptly in writing to the Chief Executive Officer of the Company in order to permit the Company\nto enforce and perfect the rights to which the Company is entitled under this Agreement;\n(b) Employee will, at the Company's request, promptly execute a written assignment of title to the Company for any Invention, and Employee\nwill preserve all Inventions as Confidential Information in accordance with the terms hereof; and\n(c) Upon request, Employee will assist the Company or its nominee (at the Company's expense) during and at any time during or subsequent to\nthe performance of services by Employee for the Company in every reasonable way in obtaining for the Company's own benefit patents and\ncopyrights for all Inventions in any and all countries, which Inventions shall be and remain the sole and exclusive property of the Company or its\nnominee, whether or not patented or copyrighted. Employee will execute such papers and perform such lawful acts as the Company deems to be\nnecessary to allow the Company to exercise all rights, title and interest in such patents and copyrights.\n5. Execution of Documents. In connection with this Agreement, Employee will execute, acknowledge and deliver to the Company or\nits\nnominee upon request and at the Company's expense all such documents, including applications for patents and copyrights and assignments of all\nInventions, patents and copyrights to be issued therefore, as the Company may determine necessary or desirable to apply for and obtain letters patent\nand copyrights on all Inventions in any and all countries and/or to protect the interest of the Company or its nominee in Inventions, patents and\ncopyrights and to vest title thereto in the Company or its nominee.\n6. Maintenance of Records. Employee will keep and maintain adequate and current written records of all Inventions made by Employee (in the\nform of notes, sketches, drawings and as may be specified by the Company), which records shall be available to and remain the sole property of the\nCompany at all times.\n7. Prior Inventions. It is understood that all ideas, improvements, designs and discoveries, whether or not patentable and whether or not\nreduced to practice, which Employee made prior to the time the Company and Employee began to consider any possible performance of services by\nEmployee to the Company (herein referred to as "Excluded Inventions") are excluded from the definition of Inventions as used herein. Set forth on\nExhibit A attached hereto is a complete list of all Excluded Inventions, including numbers of all patents and patent applications, and a brief\ndescription of all unpatented\n2\ninventions which are not the property of another party (including, without limitation, a current or previous contracting party). The list is complete\nand if no items are included on Exhibit A, Employee shall be deemed to have no such prior inventions within the definition of Inventions. Employee\nwill notify the Company in writing before Employee makes any disclosure or performs any work on behalf of the Company which appears to\nthreaten or conflict with proprietary rights Employee claims in any such Invention or idea. In the event of Employee's failure to give such notice,\nEmployee will make no claim against the Company with respect to any such inventions or ideas.\n8. Other Obligations. Employee acknowledges that the Company, from time to time, may have agreements with other persons or entities or\nwith the U.S. Government, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the\ncourse of work thereunder or regarding the confidential nature of such work. Employee will be bound by all such obligations and restrictions and\nwill take all action necessary to discharge the obligations of the Company thereunder.\n9. Trade Secrets of Others. Employee represents that Employee's performance of all the terms of this Agreement and as an employee\nof\nthe\nCompany does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by Employee in\nconfidence or in trust, and Employee will not disclose to the Company, or induce the Company to use, any confidential or proprietary information or\nmaterial belonging to any other person or entity. Employee will not enter into any agreement, either written or oral, in conflict herewith.\n12. Injunctive Relief. Employee agrees that this Agreement is important to and gravely effects the effective and successful conduct of the\nbusiness of the Company, and it effects its reputation and good will, and is necessary to protect the legitimate business interests of the Company.\nEmployee recognizes and agrees that the Company will suffer irreparable injury in the event of Employee's breach of any covenant or agreement\ncontained herein and cannot be compensated by monetary damages alone. Employee therefore agrees that the Company, in addition to and without\nlimiting any other remedies or rights that it may have, either under this Agreement or otherwise, shall have the right to obtain injunctive relief, both\ntemporary and permanent, against the Employee from any court of competent jurisdiction, without the necessity of proving actual damages and\nwithout the necessity of posting bond or other security. Employee agrees to pay the Company's reasonable attorney's fees and costs for enforcement\nof this Agreement, if the Employee breaches this Agreement.\n13. Modification. This Agreement may not be changed, modified, released, discharged, abandoned, or otherwise amended, in whole or in part,\nexcept by an instrument in writing, signed by Employee and by the Company. Any subsequent change or changes in the relationship between the\nCompany and Employee or in Employee's compensation by the Company shall not affect the validity or scope of this Agreement.\n14. Reasonable Terms. Employee acknowledges and agrees that the restrictive covenants contained in this Agreement have been reviewed by\nEmployee with the benefit of counsel and that such covenants are reasonable in all of the circumstances for the protection of the legitimate business\ninterests of the Company.\n15. Entire Agreement. Employee acknowledges receipt of this Agreement, and agrees that with respect to the subject matter thereof it is\nEmployee's entire agreement with the Company, superseding any previous oral or written communications, representations, understandings, or\nagreements with the Company or any officer or representative thereof.\n3\n16. Severabilitv. In the event that any paragraph or provision of this Agreement shall be held to be illegal or unenforceable, the entire\nAgreement shall not fail on account thereof. It is further agreed that if any one or more of such paragraphs or provisions shall be judged to be void as\ngoing beyond what is reasonable in all of the circumstances for the protection of the interests of the Company, but would be valid if part of the\nwording thereof were deleted or the period thereof reduced or the range of activities covered thereby reduced in scope, the said reduction shall be\ndeemed to apply with such modifications as may be necessary to make them valid and effective and any such modification shall not thereby affect\nthe validity of any other paragraph or provisions contained in this Agreement.\n17. Successors and Assigns. This Agreement shall be binding upon the heirs, executors, administrators or other legal representatives of\nEmployee and is for the benefit of the Company, its successors and assigns. Employee may not assign Employee's rights or delegate Employee's\nduties under this Agreement either in whole or in part without the prior written consent of the Company. Any attempted assignment or delegation\nwithout such consent will be null and void.\n18. Governing Law. This Agreement shall be governed by the laws of the State of Delaware except for any conflicts of law rules thereof which\nmight direct the application of the substantive laws of another state.\n19. Counterparts. This Agreement may be signed in two counterparts, each of which may be delivered by facsimile or other electronic\ntransmission and each of which shall be deemed an original and both of which shall together constitute one agreement.\nEXECUTED as of the date set forth below.\n/s/ Benny Ward\nBenny Ward\nAccepted and Agreed:\nBIODELIVERY SCIENCES INTERNATIONAL, INC.\nBy: /s/ Mark A. Sirgo\nName: Mark A. Sirgo\nTitle: President and CEO\n[Signature Page to Confidentiality, Intellectual Property and Non-Competition Agreement]\n4\nEXHIBIT A TO\nCONFIDENTIALITY, INTELLECTUAL PROPERTY\nAND NON-COMPETITION AGREEMENT\nPRIOR INVENTIONS WITHIN THE SCOPE OF ASSIGNMENT\nThe following is a complete list of all inventions or improvements patented or, unpatented, that have been made or conceived or first reduced\nto practice by the undersigned alone or jointly with others prior to the time the Company and the undersigned first began to consider the\nundersigned's performance of services for the Company. The undersigned desires to remove the inventions and improvements listed, if any, from the\noperation of the foregoing Agreement.\nCheck one:\nX\nNo inventions or improvements.\nAs follows:\nAdditional sheets attached.\nDated: September 7, 2010\n/s/ Benny Ward\nBenny Ward	EX-10.2 3 dex102.htm CONFIDENTIALITY, INTELLECTUAL PROPERTY AND NON-COMPETITION\nAGREEMENT\nExhibit 10.2\nCONFIDENTIALITY, INTELLECTUAL PROPERTY\nAND NON-COMPETITION AGREEMENT\nThis CONFIDENTIALITY, INTELLECTUAL PROPERTY AND NON-COMPETITION AGREEMENT (this “Agreement”) is entered\ninto effective for all purposes as of September 7, 2010 by Benny Ward (“Employee”) in favor of BioDelivery Sciences International, Inc., a\nDelaware corporation (the “Company”).\nIn consideration of and as a condition to the Company’s employment of Employee and of Employee providing employment services to the\nCompany, Employee hereby agrees as follows:\n1. Confidentiality. At all times, Employee shall keep confidential, except as the Company may otherwise consent to in writing, and not\ndisclose, or make any use of except for the benefit of the Company, at any time either during or subsequent to performance by Employee of services\nfor the Company, any trade secrets, confidential information, knowledge, data or other information of the Company relating to products, processes,\nknow-how, intellectual property, technical data, designs, formulas, test data, customer lists, business plans, marketing and manufacturing plans and\nstrategies, and pricing strategies or other subject matter pertaining to any business of the Company or any of its partners, customers, consultants,\nlicensors, licensees or affiliates (collectively, the “Confidential Information”), which Employee may produce, obtain or otherwise learn of during\nthe course of Employee’s employment with the Company. The “Confidential Information” shall not include information that is or becomes part of\nthe public domain not as a result of any inaction or action of the Employee. Employee shall not deliver, reproduce, or in any way allow any such\nConfidential Information to be delivered to or used by any third parties for any purpose (including, without limitation, any purpose harmful to or\ncompetetive with the interests of the Company) without the specific direction or consent of a duly authorized representative of the Company.\nEmployee acknowledges and agrees that some of the Confidential Information may be considered “material non-public information” for purposes of\nthe federal securities laws (“Insider Information”) and that the Employee will abide by all securities laws relating to the handling of and acting\nupon Insider Information.\n2. Return of Confidential Material. Upon the termination the Employee’s employment with the Company, Employee shall promptly surrender\nand deliver to the Company all records, materials, equipment, drawings, documents, lab notes and books and data of any nature pertaining to any\nInvention (as defined below) or Confidential Information of the Company or to the services provided by Employee, and Employee will not take or\nretain (in any form or format) any description containing or pertaining to any Confidential Information which Employee may produce or obtain\nduring the course of Employee’s employment with the Company.\n3. Assignment of Inventions and Moral Rights.\n(a) Employee hereby assigns and transfers to the Company, on a perpetual, worldwide and royalty-free basis, Employee’s entire right, title and\ninterest in and to all Inventions. As used in this agreement, the term “Inventions” shall mean all intellectual property, ideas, improvements, designs,\ndiscoveries, developments, drawings, notes, documents, information and/or materials, whether or not patentable and whether or not reduced to\npractice, made or conceived by Employee (whether made solely by Employee or jointly with others) which: (i) occur or are conceived during the\nperiod in which Employee is employed by or performs services for the Company and (ii) which relate in any manner to drug, nutraceuticals, genes,\nvaccines, vitamin or other compound delivery technologies involving liposomes, proteoliposomes, cochleates, buccal, transmucosal, transdermal,\noral or other applications\n1\nand/or derivatives thereof (“Delivery Technologies”), applications of the Delivery Technologies to specific drugs, nutraceuticals, genes, vaccines,\nvitamins or other compounds, or result from any task of any nature assigned to or undertaken by Employee or any work performed by Employee for\nor on behalf of the Company or any of its affiliates.\n(b) Employee hereby irrevocably transfers and assigns to the Company any and all Moral Rights that Employee may have in any Inventions.\nEmployee also hereby forever waives and agrees never to assert against the Company, its successors or licensees any and all Moral Rights which\nEmployee may have in any Inventions, even after termination of Employee’s employment with the Company. For purposes of this Agreement, the\nterm “Moral Rights” means any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any\nsimilar right, existing under the law of any country in the world, or under any treaty.\n4. Disclosure of Inventions. In connection with all Inventions contemplated by Section 3 hereof:\n(a) Employee will disclose all Inventions promptly in writing to the Chief Executive Officer of the Company in order to permit the Company\nto enforce and perfect the rights to which the Company is entitled under this Agreement;\n(b) Employee will, at the Company’s request, promptly execute a written assignment of title to the Company for any Invention, and Employee\nwill preserve all Inventions as Confidential Information in accordance with the terms hereof; and\n(c) Upon request, Employee will assist the Company or its nominee (at the Company’s expense) during and at any time during or subsequent to\nthe performance of services by Employee for the Company in every reasonable way in obtaining for the Company’s own benefit patents and\ncopyrights for all Inventions in any and all countries, which Inventions shall be and remain the sole and exclusive property of the Company or its\nnominee, whether or not patented or copyrighted. Employee will execute such papers and perform such lawful acts as the Company deems to be\nnecessary to allow the Company to exercise all rights, title and interest in such patents and copyrights.\n5. Execution of Documents. In connection with this Agreement, Employee will execute, acknowledge and deliver to the Company or its\nnominee upon request and at the Company’s expense all such documents, including applications for patents and copyrights and assignments of all\nInventions, patents and copyrights to be issued therefore, as the Company may determine necessary or desirable to apply for and obtain letters patent\nand copyrights on all Inventions in any and all countries and/or to protect the interest of the Company or its nominee in Inventions, patents and\ncopyrights and to vest title thereto in the Company or its nominee.\n6. Maintenance of Records. Employee will keep and maintain adequate and current written records of all Inventions made by Employee (in the\nform of notes, sketches, drawings and as may be specified by the Company), which records shall be available to and remain the sole property of the\nCompany at all times.\n7. Prior Inventions. It is understood that all ideas, improvements, designs and discoveries, whether or not patentable and whether or not\nreduced to practice, which Employee made prior to the time the Company and Employee began to consider any possible performance of services by\nEmployee to the Company (herein referred to as “Excluded Inventions”) are excluded from the definition of Inventions as used herein. Set forth on\nExhibit A attached hereto is a complete list of all Excluded Inventions, including numbers of all patents and patent applications, and a brief\ndescription of all unpatented\n2\ninventions which are not the property of another party (including, without limitation, a current or previous contracting party). The list is complete\nand if no items are included on Exhibit A, Employee shall be deemed to have no such prior inventions within the definition of Inventions. Employee\nwill notify the Company in writing before Employee makes any disclosure or performs any work on behalf of the Company which appears to\nthreaten or conflict with proprietary rights Employee claims in any such Invention or idea. In the event of Employee’s failure to give such notice,\nEmployee will make no claim against the Company with respect to any such inventions or ideas.\n8. Other Obligations. Employee acknowledges that the Company, from time to time, may have agreements with other persons or entities or\nwith the U.S . Government, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the\ncourse of work thereunder or regarding the confidential nature of such work. Employee will be bound by all such obligations and restrictions and\nwill take all action necessary to discharge the obligations of the Company thereunder.\n9. Trade Secrets of Others. Employee represents that Employee’s performance of all the terms of this Agreement and as an employee of the\nCompany does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by Employee in\nconfidence or in trust, and Employee will not disclose to the Company, or induce the Company to use, any confidential or proprietary information or\nmaterial belonging to any other person or entity. Employee will not enter into any agreement, either written or oral, in conflict herewith.\n12. Injunctive Relief. Employee agrees that this Agreement is important to and gravely effects the effective and successful conduct of the\nbusiness of the Company, and it effects its reputation and good will, and is necessary to protect the legitimate business interests of the Company.\nEmployee recognizes and agrees that the Company will suffer irreparable injury in the event of Employee’s breach of any covenant or agreement\ncontained herein and cannot be compensated by monetary damages alone. Employee therefore agrees that the Company, in addition to and without\nlimiting any other remedies or rights that it may have, either under this Agreement or otherwise, shall have the right to obtain injunctive relief, both\ntemporary and permanent, against the Employee from any court of competent jurisdiction, without the necessity of proving actual damages and\nwithout the necessity of posting bond or other security. Employee agrees to pay the Company’s reasonable attorney’s fees and costs for enforcement\nof this Agreement, if the Employee breaches this Agreement.\n13. Modification. This Agreement may not be changed, modified, released, discharged, abandoned, or otherwise amended, in whole or in part,\nexcept by an instrument in writing, signed by Employee and by the Company. Any subsequent change or changes in the relationship between the\nCompany and Employee or in Employee’s compensation by the Company shall not affect the validity or scope of this Agreement.\n14. Reasonable Terms. Employee acknowledges and agrees that the restrictive covenants contained in this Agreement have been reviewed by\nEmployee with the benefit of counsel and that such covenants are reasonable in all of the circumstances for the protection of the legitimate business\ninterests of the Company.\n15. Entire Agreement. Employee acknowledges receipt of this Agreement, and agrees that with respect to the subject matter thereof it is\nEmployee’s entire agreement with the Company, superseding any previous oral or written communications, representations, understandings, or\nagreements with the Company or any officer or representative thereof.\n3\n16. Severabilitv. In the event that any paragraph or provision of this Agreement shall be held to be illegal or unenforceable, the entire\nAgreement shall not fail on account thereof. It is further agreed that if any one or more of such paragraphs or provisions shall be judged to be void as\ngoing beyond what is reasonable in all of the circumstances for the protection of the interests of the Company, but would be valid if part of the\nwording thereof were deleted or the period thereof reduced or the range of activities covered thereby reduced in scope, the said reduction shall be\ndeemed to apply with such modifications as may be necessary to make them valid and effective and any such modification shall not thereby affect\nthe validity of any other paragraph or provisions contained in this Agreement.\n17. Successors and Assigns. This Agreement shall be binding upon the heirs, executors, administrators or other legal representatives of\nEmployee and is for the benefit of the Company, its successors and assigns. Employee may not assign Employee’s rights or delegate Employee’s\nduties under this Agreement either in whole or in part without the prior written consent of the Company. Any attempted assignment or delegation\nwithout such consent will be null and void.\n18. Governing Law. This Agreement shall be governed by the laws of the State of Delaware except for any conflicts of law rules thereof which\nmight direct the application of the substantive laws of another state.\n19. Counterparts. This Agreement may be signed in two counterparts, each of which may be delivered by facsimile or other electronic\ntransmission and each of which shall be deemed an original and both of which shall together constitute one agreement.\nEXECUTED as of the date set forth below.\n/s/ Benny Ward\nBenny Ward\nAccepted and Agreed:\nBIODELIVERY SCIENCES INTERNATIONAL, INC.\nBy: /s/ Mark A. Sirgo\nName: Mark A. Sirgo\nTitle: President and CEO\n[Signature Page to Confidentiality, Intellectual Property and Non-Competition Agreement]\n4\nEXHIBIT A TO\nCONFIDENTIALITY, INTELLECTUAL PROPERTY\nAND NON-COMPETITION AGREEMENT\nPRIOR INVENTIONS WITHIN THE SCOPE OF ASSIGNMENT\nThe following is a complete list of all inventions or improvements patented or, unpatented, that have been made or conceived or first reduced\nto practice by the undersigned alone or jointly with others prior to the time the Company and the undersigned first began to consider the\nundersigned’s performance of services for the Company. The undersigned desires to remove the inventions and improvements listed, if any, from the\noperation of the foregoing Agreement.\nCheck one:\nx\nNo inventions or improvements.\n̈\nAs follows:\nAdditional sheets attached.\nDated: September 7, 2010 /s/ Benny Ward\nBenny Ward
+19d0cc3894d25d570fc28283ff763ba7.pdf	effective_date jurisdiction party term	EXHIBIT M NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement ("Agreement") is entered into as of\nthe date last written below between Cisco Systems, Inc. a California corporation having its principal place of business at\n170 West Tasman Drive, San Jose, California 95134-1706 (and its wholly owned subsidiaries), ("Cisco") and\n__________________\n_____________________________ ________________________, a _______________________\n____________________________________\ncorporation having its principal place of business at\n___________________________________________________________________. In consideration of the mutual\npromises and covenants contained in this Agreement and the disclosure of confidential information to each other, the\nparties to this Agreement agree as follows: 1. DEFINITION. "Confidential Information" means the terms and conditions\nof this Agreement, the existence of the discussions between the parties, the information described in Section 2 below, and\nany other information concerning the Purpose defined below, including but not limited to, information regarding each\nparty's product plans, product designs, product costs, product prices, finances, marketing plans, business opportunities,\npersonnel, research and development activities, know-how and pre-release products; provided that information disclosed\nby the disclosing party ("Disclosing Party") in written or other tangible form will be considered Confidential Information\nby the receiving party ("Receiving Party") only if such information is conspicuously designated as "Confidential,"\n"Proprietary" or a similar legend. Information disclosed orally shall only be considered Confidential Information if: (i)\nidentified as confidential, proprietary or the like at the time of disclosure, and (ii) confirmed in writing within thirty (30)\ndays of disclosure. Confidential Information disclosed to the Receiving Party by any affiliate or agent of the Disclosing\nParty is subject to this Agreement. 2. DESCRIPTION. The Confidential Information to be disclosed under this\nAgreement is described as follows: Cisco: Cisco -------------------------------------------------------------------\n[Other party: ("Party")] -------------------------------------------------------- 3. PURPOSE . The Receiving Party may use the\nConfidential Information solely for the purpose of ("Purpose"): Cisco:\n-------------------------------------------------------------------------- [Otherparty:]\n------------------------------------------------------------------ 4.DISCLOSURE.TheReceivingParty shall not disclose the\nConfidential Information to any third party other than employees and contractors of the Receiving Party who have a need\nto have access to and knowledge of the Confidential Information solely for the 60 SonicWALL OEM Agreement Purpose\nauthorized above. The Receiving Party shall have entered into non-disclosure agreements with such employees and\ncontractors having obligations of confidentiality as strict as those herein prior to disclosure to such employees and\ncontractors to assure against unauthorized use or disclosure. 5. EXCEPTIONS TO CONFIDENTIAL INFORMATION.\nThe Receiving Party shall have no obligation with respect to information which (i) was rightfully in possession of or\nknown to the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party; (ii)\nis, or subsequently becomes, legally and publicly available without breach of this Agreement; (iii) is rightfully obtained\nby the Receiving Party from a source other than the Disclosing Party without any obligation of confidentiality; (iv) is\ndeveloped by or for the Receiving Party without use of the Confidential Information and such independent development\ncan be shown by documentary evidence; (v) becomes available to the Receiving Party by wholly lawful inspection or\nanalysis of products offered for sale without breach of any contractual\nobligations; and (vi) is transmitted by a party after receiving written notification from the other party that it does not\ndesire to receive any further Confidential Information. Further, the Receiving Party may disclose Confidential\nInformation pursuant to a valid order issued by a court or government agency, provided that the Receiving Party provides\nthe Disclosing Party: (a) prior written notice of such obligation; and (b) the opportunity to oppose such disclosure or\nobtain a protective order. 6. RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION. Upon written\ndemand by the Disclosing Party, the Receiving Party shall: (i) cease using the Confidential Information, (ii) return the\nConfidential Information and all copies, notes or extracts thereof to the Disclosing Party within seven (7) days of receipt\nof demand; and (iii) upon request of the Disclosing Party, certify in writing that the Receiving Party has complied with\nthe obligations set forth in this paragraph. 7. INDEPENDENT DEVELOPMENT AND RESIDUALS. The terms of\nconfidentiality under this Agreement shall not be construed to limit either party's right to develop independently or\nacquire products without use of the other party's Confidential Information. The Disclosing Party acknowledges that the\nReceiving Party may currently or in the future be developing information internally, or receiving information from other\nparties, that is similar to the Confidential Information. Accordingly, nothing in this Agreement will prohibit the\nReceiving Party from developing or having developed for it products, concepts, systems or techniques that are similar to\nor compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential\nInformation provided that the Receiving Party does not violate any of its obligations under this Agreement in connection\nwith such development. 8. NO LICENSES . Each party shall retain all right, title and interest to such party's Confidential\nInformation. No license under any trademark, patent or copyright, or application for same which are now or thereafter\nmay be obtained by such party is either granted or implied by the disclosure of Confidential Information. 61 SonicWALL\nOEM Agreement 9. DISCLAIMER . CONFIDENTIAL INFORMATION IS PROVIDED "AS IS" WITH ALL FAULTS.\nIN NO EVENT SHALL THE DISCLOSING PARTY BE LIABLE FOR THE ACCURACY OR COMPLETENESS OF\nTHE CONFIDENTIAL INFORMATION. None of the Confidential Information disclosed by the parties constitutes any\nrepresentation, warranty, assurance, guarantee or inducement by either party to the other with respect to the infringement\nof trademarks, patents, copyrights, any right of privacy, or any rights of third persons. 10. EXPORT . The parties\nacknowledge that the Confidential Information disclosed by each of them under this Agreement may be subject to export\ncontrols under the laws of the United States. Each party shall comply with such laws and agrees not to knowingly export,\nre-export or transfer Confidential Information of the other party without first obtaining all required United States\nauthorizations or licenses. 11. TERM . This Agreement shall continue from the date last written below until terminated by\neither party by giving thirty (30) days written notice to the other party of its intent to terminate this Agreement.\nNotwithstanding such termination, the obligations of the Receiving Party concerning confidentiality shall terminate five\n(5) years following receipt of the Confidential Information. 12. GENERAL. Each party acknowledges that monetary\nremedies may be inadequate to protect Confidential Information and that injunctive relief may be appropriate to protect\nsuch Confidential Information. The Receiving Party shall not reverse-engineer, decompile, or disassemble any software\nor hardware disclosed to it under this Agreement and shall not remove, overprint or deface any notice of confidentiality,\ncopyright, trademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of\nConfidential Information it obtains from the Disclosing Party. The parties hereto are independent contractors. Neither\nthis Agreement nor any right granted hereunder shall be assignable or otherwise transferable. If any term of this\nAgreement shall be held to be illegal or unenforceable by a court of competent jurisdiction, the remaining terms shall\nremain in full force and effect. This Agreement may be modified only by a writing signed by both parties. This\nAgreement shall be construed in accordance with the laws of the State of California. This Agreement represents the\nentire agreement of the parties hereto pertaining to the subject matter of this Agreement, and supersedes any and all prior\noral discussions and/or written correspondence or agreements between the parties with respect thereto. 62 SonicWALL\nOEM Agreement IN WITNESS WHEREOF, the parties have executed this Agreement as of the date last written below.\nCISCO SYSTEMS, INC. -- - -- - -- - -- - -- - -- - -- - -- -- - -- - -- - -- - -- By By ------------------------------------ -------------------------------\n-- - Name Name ----------------------------------- --------------------------------- Title Title ---------------------------------\n-- -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - Date Date ----------------------------------- --------------------------------	EXHIBIT M NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement ("Agreement") is entered into as of\nthe date last written below between Cisco Systems, Inc. a California corporation having its principal place of business at\n170 West Tasman Drive, San Jose, California 95134-1706 (and its wholly owned subsidiaries), ("Cisco") and\n,a\ncorporation having its principal place of business at\n. In consideration of the mutual\npromises and covenants contained in this Agreement and the disclosure of confidential information to each other, the\nparties to this Agreement agree as follows: 1. DEFINITION. "Confidential Information" means the terms and conditions\nof this Agreement, the existence of the discussions between the parties, the information described in Section 2 below, and\nany other information concerning the Purpose defined below, including but not limited to, information regarding each\nparty's product plans, product designs, product costs, product prices, finances, marketing plans, business opportunities,\npersonnel, research and development activities, know-how and pre-release products; provided that information disclosed\nby the disclosing party ("Disclosing Party") in written or other tangible form will be considered Confidential Information\nby the receiving party ("Receiving Party") only if such information is conspicuously designated as "Confidential,"\n"Proprietary"” or a similar legend. Information disclosed orally shall only be considered Confidential Information if: (i)\nidentified as confidential, proprietary or the like at the time of disclosure, and (ii) confirmed in writing within thirty (30)\ndays of disclosure. Confidential Information disclosed to the Receiving Party by any affiliate or agent of the Disclosing\nParty is subject to this Agreement. 2. DESCRIPTION. The Confidential Information to be disclosed under this\nAgreement is described as follows: CisSCO: CiSCO ===mmmn=mmmmmmmmm s oo e\n[Other party: ("Party")] -=--==-==mmm oo o e 3. PURPOSE. The Receiving Party may use the\nConfidential Information solely for the purpose of ("Purpose"): Cisco:\n-------------------------------------------------------------------------- [Other party:]\n------------------------------------------------------------------ 4. DISCLOSURE. The Receiving Party shall not disclose the\nConfidential Information to any third party other than employees and contractors of the Receiving Party who have a need\nto have access to and knowledge of the Confidential Information solely for the 60 SonicWALL OEM Agreement Purpose\nauthorized above. The Receiving Party shall have entered into non-disclosure agreements with such employees and\ncontractors having obligations of confidentiality as strict as those herein prior to disclosure to such employees and\ncontractors to assure against unauthorized use or disclosure. 5. EXCEPTIONS TO CONFIDENTIAL INFORMATION.\nThe Receiving Party shall have no obligation with respect to information which (i) was rightfully in possession of or\nknown to the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party; (ii)\nis, or subsequently becomes, legally and publicly available without breach of this Agreement; (iii) is rightfully obtained\nby the Receiving Party from a source other than the Disclosing Party without any obligation of confidentiality; (iv) is\ndeveloped by or for the Receiving Party without use of the Confidential Information and such independent development\ncan be shown by documentary evidence; (v) becomes available to the Receiving Party by wholly lawful inspection or\nanalysis of products offered for sale without breach of any contractual\n \n \nobligations; and (vi) is transmitted by a party after receiving written notification from the other party that it does not\ndesire to receive any further Confidential Information. Further, the Receiving Party may disclose Confidential\nInformation pursuant to a valid order issued by a court or government agency, provided that the Receiving Party provides\nthe Disclosing Party: (a) prior written notice of such obligation; and (b) the opportunity to oppose such disclosure or\nobtain a protective order. 6. RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION. Upon written\ndemand by the Disclosing Party, the Receiving Party shall: (i) cease using the Confidential Information, (ii) return the\nConfidential Information and all copies, notes or extracts thereof to the Disclosing Party within seven (7) days of receipt\nof demand; and (iii) upon request of the Disclosing Party, certify in writing that the Receiving Party has complied with\nthe obligations set forth in this paragraph. 7. INDEPENDENT DEVELOPMENT AND RESIDUALS. The terms of\nconfidentiality under this Agreement shall not be construed to limit either party's right to develop independently or\nacquire products without use of the other party's Confidential Information. The Disclosing Party acknowledges that the\nReceiving Party may currently or in the future be developing information internally, or receiving information from other\nparties, that is similar to the Confidential Information. Accordingly, nothing in this Agreement will prohibit the\nReceiving Party from developing or having developed for it products, concepts, systems or techniques that are similar to\nor compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential\nInformation provided that the Receiving Party does not violate any of its obligations under this Agreement in connection\nwith such development. 8. NO LICENSES. Each party shall retain all right, title and interest to such party's Confidential\nInformation. No license under any trademark, patent or copyright, or application for same which are now or thereafter\nmay be obtained by such party is either granted or implied by the disclosure of Confidential Information. 61 SonicWALL\nOEM Agreement 9. DISCLAIMER. CONFIDENTIAL INFORMATION IS PROVIDED "AS IS" WITH ALL FAULTS.\nIN NO EVENT SHALL THE DISCLOSING PARTY BE LIABLE FOR THE ACCURACY OR COMPLETENESS OF\nTHE CONFIDENTIAL INFORMATION. None of the Confidential Information disclosed by the parties constitutes any\nrepresentation, warranty, assurance, guarantee or inducement by either party to the other with respect to the infringement\nof trademarks, patents, copyrights, any right of privacy, or any rights of third persons. 10. EXPORT. The parties\nacknowledge that the Confidential Information disclosed by each of them under this Agreement may be subject to export\ncontrols under the laws of the United States. Each party shall comply with such laws and agrees not to knowingly export,\nre-export or transfer Confidential Information of the other party without first obtaining all required United States\nauthorizations or licenses. 11. TERM. This Agreement shall continue from the date last written below until terminated by\neither party by giving thirty (30) days written notice to the other party of its intent to terminate this Agreement.\nNotwithstanding such termination, the obligations of the Receiving Party concerning confidentiality shall terminate five\n(5) years following receipt of the Confidential Information. 12. GENERAL. Each party acknowledges that monetary\nremedies may be inadequate to protect Confidential Information and that injunctive relief may be appropriate to protect\nsuch Confidential Information. The Receiving Party shall not reverse-engineer, decompile, or disassemble any software\nor hardware disclosed to it under this Agreement and shall not remove, overprint or deface any notice of confidentiality,\ncopyright, trademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of\nConfidential Information it obtains from the Disclosing Party. The parties hereto are independent contractors. Neither\nthis Agreement nor any right granted hereunder shall be assignable or otherwise transferable. If any term of this\nAgreement shall be held to be illegal or unenforceable by a court of competent jurisdiction, the remaining terms shall\nremain in full force and effect. This Agreement may be modified only by a writing signed by both parties. This\nAgreement shall be construed in accordance with the laws of the State of California. This Agreement represents the\nentire agreement of the parties hereto pertaining to the subject matter of this Agreement, and supersedes any and all prior\noral discussions and/or written correspondence or agreements between the parties with respect thereto. 62 SonicWALL\nOEM Agreement IN WITNESS WHEREQF, the parties have executed this Agreement as of the date last written below.\nCISCO SYSTEMS, INC. —----mmmmmmmmmm oo By By oo\n-—- Name Name -------m oo oo e Title Title --------=m=mmmmmm oo	EXHIBIT M NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement ("Agreement") is entered into as of\nthe date last written below between Cisco Systems, Inc. a California corporation having its principal place of business at\n170 West Tasman Drive, San Jose, California 95134-1706 (and its wholly owned subsidiaries), ("Cisco") and\na\ncorporation having its principal place of business at\nIn consideration of the mutual\npromises and covenants contained in this Agreement and the disclosure of confidential information to each other, the\nparties to this Agreement agree as follows: 1. DEFINITION. "Confidential Information" means the terms and conditions\nof this Agreement, the existence of the discussions between the parties, the information described in Section 2 below, and\nany other information concerning the Purpose defined below, including but not limited to, information regarding each\nparty's product plans, product designs, product costs, product prices, finances, marketing plans, business opportunities,\npersonnel, research and development activities, know-how and pre-release products; provided that information disclosed\nby the disclosing party ("Disclosing Party") in written or other tangible form will be considered Confidential Information\nby the receiving party ("Receiving Party") only if such information is conspicuously designated as "Confidential,"\n"Proprietary" or a similar legend. Information disclosed orally shall only be considered Confidential Information if: (i)\nidentified as confidential, proprietary or the like at the time of disclosure, and (ii) confirmed in writing within thirty (30)\ndays of disclosure. Confidential Information disclosed to the Receiving Party by any affiliate or agent of the Disclosing\nParty is subject to this Agreement 2. DESCRIPTION. The Confidential Information to be disclosed under this\nAgreement is described as follows: Cisco: Cisco\n[Other party: ("Party")]\n3. PURPOSE. The Receiving Party may use the\nConfidential Information solely for the purpose of ("Purpose"): Cisco:\n[Other party:]\n4. DISCLOSURE. The Receiving Party shall not disclose the\nConfidential Information to any third party other than employees and contractors of the Receiving Party who have a need\nto have access to and knowledge of the Confidential Information solely for the 60 SonicWALL OEM Agreement Purpose\nauthorized above. The Receiving Party shall have entered into non-disclosure agreements with such employees and\ncontractors having obligations of confidentiality as strict as those herein prior to disclosure to such employees and\ncontractors\nto\nassure\nagainst\nunauthorized\nuse\nor\ndisclosure.\n5.\nEXCEPTIONS\nTO\nCONFIDENTIAL\nINFORMATION.\nThe Receiving Party shall have no obligation with respect to information which (i) was rightfully in possession of\nor\nknown to the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party; (ii)\nis, or subsequently becomes, legally and publicly available without breach of this Agreement; (iii) is rightfully obtained\nby the Receiving Party from a source other than the Disclosing Party without any obligation of confidentiality; (iv) is\ndeveloped by or for the Receiving Party without use of the Confidential Information and such independent development\ncan be shown by documentary evidence; (v) becomes available to the Receiving Party by wholly lawful inspection or\nanalysis of products offered for sale without breach of any contractual\nobligations; and (vi) is transmitted by a party after receiving written notification from the other party that it does not\ndesire to receive any further Confidential Information. Further, the Receiving Party may disclose Confidential\nInformation pursuant to a valid order issued by a court or government agency, provided that the Receiving Party provides\nthe Disclosing Party: (a) prior written notice of such obligation; and (b) the opportunity to oppose such disclosure or\nobtain a protective order. 6. RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION. Upon written\ndemand by the Disclosing Party, the Receiving Party shall: (i) cease using the Confidential Information, (ii) return the\nConfidentia Information and all copies, notes or extracts thereof to the Disclosing Party within seven (7) days of receipt\nof demand; and (iii) upon request of the Disclosing Party, certify in writing that the Receiving Party has complied with\nthe obligations set forth in this paragraph. 7. INDEPENDENT DEVELOPMENT AND RESIDUALS. The terms of\nconfidentiality under this Agreement shall not be construed to limit either party's right to develop independently or\nacquire products without use of the other party's Confidential Information. The Disclosing Party acknowledges that the\nReceiving Party may currently or in the future be developing information internally, or receiving information from other\nparties, that is similar to the Confidential Information. Accordingly, nothing in this Agreement will prohibit the\nReceiving Party from developing or having developed for it products, concepts, systems or techniques that are similar to\nor compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential\nInformation provided that the Receiving Party does not violate any of its obligations under this Agreement in connection\nwith such development. 8. NO LICENSES. Each party shall retain all right, title and interest to such party's Confidential\nInformation. No license under any trademark, patent or copyright, or application for same which are now or thereafter\nmay be obtained by such party is either granted or implied by the disclosure of Confidential Information. 61 SonicWALL\nOEM Agreement 9. DISCLAIMER. CONFIDENTIAL INFORMATION IS PROVIDED "AS IS" WITH ALL FAULTS.\nIN\nNO\nEVENT\nSHALL\nTHE\nDISCLOSING\nPARTY\nBE\nLIABLE\nFOR\nTHE\nACCURACY\nOR\nCOMPLETENESS\nOF\nTHE CONFIDENTIAL INFORMATION. None of the Confidential Information disclosed by the parties constitutes any\nrepresentation, warranty, assurance, guarantee or inducement by either party to the other with respect to the infringement\nof trademarks, patents, copyrights, any right of privacy, or any rights of third persons. 10. EXPORT. The parties\nacknowledge that the Confidential Information disclosed by each of them under this Agreement may be subject to export\ncontrols under the laws of the United States. Each party shall comply with such laws and agrees not to knowingly export,\nre-export or transfer Confidential Information of the other party without first obtaining all required United States\nauthorizations or licenses. 11. TERM. This Agreement shall continue from the date last written below until terminated by\neither party by giving thirty (30) days written notice to the other party of its intent to terminate this Agreement.\nNotwithstanding such termination, the obligations of the Receiving Party concerning confidentiality shall terminate\nfive\n(5) years following receipt of the Confidential Information. 12. GENERAL. Each party acknowledges that monetary\nremedies may be inadequate to protect Confidential Information and that injunctive relief may be appropriate to protect\nsuch Confidential Information. The Receiving Party shall not reverse-engineer, decompile, or disassemble any software\nor hardware disclosed to it under this Agreement and shall not remove, overprint or deface any notice of confidentiality,\ncopyright, trademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of\nConfidential Information it obtains from the Disclosing Party. The parties hereto are independent contractors. Neither\nthis Agreement nor any right granted hereunder shall be assignable or otherwise transferable. If any term of this\nAgreement shall be held to be illegal or unenforceable by a court of competent jurisdiction, the remaining terms shall\nremain in full force and effect. This Agreement may be modified only by a writing signed by both parties. This\nAgreement shall be construed in accordance with the laws of the State of California. This Agreement represents the\nentire agreement of the parties hereto pertaining to the subject matter of this Agreement, and supersedes any and all prior\noral discussions and/or written correspondence or agreements between the parties with respect thereto. 62 Sonic SonicWALL\nOEM Agreement IN WITNESS WHEREOF, the parties have executed this Agreement as of the date last written below.\nCISCO SYSTEMS, INC.\nBy By\nName Name\nTitle Title\nDate Date	EXHIBIT M NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement ("Agreement") is entered into as of\nthe date last written below between Cisco Systems, Inc. a California corporation having its principal place of business at\n170 West Tasman Drive, San Jose, California 95134-1706 (and its wholly owned subsidiaries), ("Cisco") and\n__________________\n_____________________________ ________________________, a _______________________\n____________________________________\ncorporation having its principal place of business at\n___________________________________________________________________. In consideration of the mutual\npromises and covenants contained in this Agreement and the disclosure of confidential information to each other, the\nparties to this Agreement agree as follows: 1. DEFINITION. "Confidential Information" means the terms and conditions\nof this Agreement, the existence of the discussions between the parties, the information described in Section 2 below, and\nany other information concerning the Purpose defined below, including but not limited to, information regarding each\nparty's product plans, product designs, product costs, product prices, finances, marketing plans, business opportunities,\npersonnel, research and development activities, know-how and pre-release products; provided that information disclosed\nby the disclosing party ("Disclosing Party") in written or other tangible form will be considered Confidential Information\nby the receiving party ("Receiving Party") only if such information is conspicuously designated as "Confidential,"\n"Proprietary" or a similar legend. Information disclosed orally shall only be considered Confidential Information if: (i)\nidentified as confidential, proprietary or the like at the time of disclosure, and (ii) confirmed in writing within thirty (30)\ndays of disclosure. Confidential Information disclosed to the Receiving Party by any affiliate or agent of the Disclosing\nParty is subject to this Agreement. 2. DESCRIPTION. The Confidential Information to be disclosed under this\nAgreement is described as follows: Cisco: Cisco -------------------------------------------------------------------\n[Other party: ("Party")] -------------------------------------------------------- 3. PURPOSE . The Receiving Party may use the\nConfidential Information solely for the purpose of ("Purpose"): Cisco:\n-------------------------------------------------------------------------- [Otherparty:]\n------------------------------------------------------------------ 4.DISCLOSURE.TheReceivingParty shall not disclose the\nConfidential Information to any third party other than employees and contractors of the Receiving Party who have a need\nto have access to and knowledge of the Confidential Information solely for the 60 SonicWALL OEM Agreement Purpose\nauthorized above. The Receiving Party shall have entered into non-disclosure agreements with such employees and\ncontractors having obligations of confidentiality as strict as those herein prior to disclosure to such employees and\ncontractors to assure against unauthorized use or disclosure. 5. EXCEPTIONS TO CONFIDENTIAL INFORMATION.\nThe Receiving Party shall have no obligation with respect to information which (i) was rightfully in possession of or\nknown to the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party; (ii)\nis, or subsequently becomes, legally and publicly available without breach of this Agreement; (iii) is rightfully obtained\nby the Receiving Party from a source other than the Disclosing Party without any obligation of confidentiality; (iv) is\ndeveloped by or for the Receiving Party without use of the Confidential Information and such independent development\ncan be shown by documentary evidence; (v) becomes available to the Receiving Party by wholly lawful inspection or\nanalysis of products offered for sale without breach of any contractual\nobligations; and (vi) is transmitted by a party after receiving written notification from the other party that it does not\ndesire to receive any further Confidential Information. Further, the Receiving Party may disclose Confidential\nInformation pursuant to a valid order issued by a court or government agency, provided that the Receiving Party provides\nthe Disclosing Party: (a) prior written notice of such obligation; and (b) the opportunity to oppose such disclosure or\nobtain a protective order. 6. RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION. Upon written\ndemand by the Disclosing Party, the Receiving Party shall: (i) cease using the Confidential Information, (ii) return the\nConfidential Information and all copies, notes or extracts thereof to the Disclosing Party within seven (7) days of receipt\nof demand; and (iii) upon request of the Disclosing Party, certify in writing that the Receiving Party has complied with\nthe obligations set forth in this paragraph. 7. INDEPENDENT DEVELOPMENT AND RESIDUALS. The terms of\nconfidentiality under this Agreement shall not be construed to limit either party's right to develop independently or\nacquire products without use of the other party's Confidential Information. The Disclosing Party acknowledges that the\nReceiving Party may currently or in the future be developing information internally, or receiving information from other\nparties, that is similar to the Confidential Information. Accordingly, nothing in this Agreement will prohibit the\nReceiving Party from developing or having developed for it products, concepts, systems or techniques that are similar to\nor compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential\nInformation provided that the Receiving Party does not violate any of its obligations under this Agreement in connection\nwith such development. 8. NO LICENSES . Each party shall retain all right, title and interest to such party's Confidential\nInformation. No license under any trademark, patent or copyright, or application for same which are now or thereafter\nmay be obtained by such party is either granted or implied by the disclosure of Confidential Information. 61 SonicWALL\nOEM Agreement 9. DISCLAIMER . CONFIDENTIAL INFORMATION IS PROVIDED "AS IS" WITH ALL FAULTS.\nIN NO EVENT SHALL THE DISCLOSING PARTY BE LIABLE FOR THE ACCURACY OR COMPLETENESS OF\nTHE CONFIDENTIAL INFORMATION. None of the Confidential Information disclosed by the parties constitutes any\nrepresentation, warranty, assurance, guarantee or inducement by either party to the other with respect to the infringement\nof trademarks, patents, copyrights, any right of privacy, or any rights of third persons. 10. EXPORT . The parties\nacknowledge that the Confidential Information disclosed by each of them under this Agreement may be subject to export\ncontrols under the laws of the United States. Each party shall comply with such laws and agrees not to knowingly export,\nre-export or transfer Confidential Information of the other party without first obtaining all required United States\nauthorizations or licenses. 11. TERM . This Agreement shall continue from the date last written below until terminated by\neither party by giving thirty (30) days written notice to the other party of its intent to terminate this Agreement.\nNotwithstanding such termination, the obligations of the Receiving Party concerning confidentiality shall terminate five\n(5) years following receipt of the Confidential Information. 12. GENERAL. Each party acknowledges that monetary\nremedies may be inadequate to protect Confidential Information and that injunctive relief may be appropriate to protect\nsuch Confidential Information. The Receiving Party shall not reverse-engineer, decompile, or disassemble any software\nor hardware disclosed to it under this Agreement and shall not remove, overprint or deface any notice of confidentiality,\ncopyright, trademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of\nConfidential Information it obtains from the Disclosing Party. The parties hereto are independent contractors. Neither\nthis Agreement nor any right granted hereunder shall be assignable or otherwise transferable. If any term of this\nAgreement shall be held to be illegal or unenforceable by a court of competent jurisdiction, the remaining terms shall\nremain in full force and effect. This Agreement may be modified only by a writing signed by both parties. This\nAgreement shall be construed in accordance with the laws of the State of California. This Agreement represents the\nentire agreement of the parties hereto pertaining to the subject matter of this Agreement, and supersedes any and all prior\noral discussions and/or written correspondence or agreements between the parties with respect thereto. 62 SonicWALL\nOEM Agreement IN WITNESS WHEREOF, the parties have executed this Agreement as of the date last written below.\nCISCO SYSTEMS, INC. -- - -- - -- - -- - -- - -- - -- - -- -- - -- - -- - -- - -- By By ------------------------------------ -------------------------------\n-- - Name Name ----------------------------------- --------------------------------- Title Title ---------------------------------\n-- -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - Date Date ----------------------------------- --------------------------------
+1a22349aa8f7f1dab06923e1f1df6e8e.pdf	effective_date jurisdiction party term	EX-4 .04 5 s-1exhibit404.htm EXHIBIT 4.04\nExhibit 4.04\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is entered into as of March 21, 2014 (the “Effective Date”)\nby and between Intel Corporation (“Intel”) and Cloudera, Inc. (“Cloudera,” and, together with Intel, each a “Party” or\ntogether the “Parties”).\nWHEREAS, Cloudera may provide certain confidential information (i) to Intel as a result of its notice,\ninformation and inspection rights as a shareholder of Cloudera and in connection with negotiating Proposed Transactions\n(as defined below) (as set forth in more detail below) and (ii) to the Intel Designee (as defined below).\nWHEREAS, any confidential information provided to or disclosed by either party pursuant to the terms of the\nCommercial Agreement will be governed by the terms of the MNDA and not this Agreement.\nNOW, THEREFORE, in consideration of the foregoing and the agreements contained herein, the Parties\nintending to be legally bound agree as follows:\n1. Definitions. For the purposes of this Agreement, the following terms have the following meanings:\n(a)\n“Affiliate” of a person shall include any person that, directly or indirectly, controls, is\ncontrolled by or is under common control with such person. The term “control” means the possession of the power,\ndirectly or indirectly, to direct or cause the direction of the management and affairs of a person.\n(b)\n“Board” means the Board of Directors of Cloudera.\n(c)\n“Commercial Agreement” means that certain Collaboration and Optimization Agreement,\nbetween the Parties, dated as of March 21, 2014.\n(d)\n“Confidential Information” shall mean all information, software, data and analysis (including\nwithout limitation information in tangible or intangible form relating to and/or including released or unreleased products\nand services (including without limitation any product or service names, titles, designs, ideas, concepts, scripts and\nschedules), the marketing or promotion of any product, business policies or practices, business plans and forecasts,\npotential transactions and business combinations and information received from others that Cloudera is obligated to treat\nas confidential) in each case that is furnished by Cloudera or its Representatives, and provided to (i) the Intel Designee\nby reason of his or her position as a member of the Board (the “Board Confidential Information”), (ii) Intel or its\nRepresentatives in the form of non‐public information received pursuant to the Investor Rights Agreement, the Right of\nFirst Refusal and Co‐Sale Agreement, or the Voting Agreement, or pursuant to shareholder information or inspection\nrights under applicable law ( the “Shareholder Confidential Information”), or (iii) to Intel or its Representatives\npursuant to the Standstill Agreement in order to enable Intel to evaluate Cloudera and enter into negotiations and\nexecution of a Proposed Transaction (“Proposed Transaction Information”) shall be considered Confidential\nInformation, as well as any analyses, compilations,\nstudies, documents or other material, regardless of the form thereof, prepared by Intel or its Representatives containing\nor based in whole or in part upon such information, software, data or analysis. Confidential Information does not include\ninformation, software, data or analysis that: (A) is when furnished or thereafter becomes publicly available other than as\na result of a disclosure by Intel or its Representatives in violation of this Agreement, (B) is already in the possession of\nor becomes available to Intel or its Representatives on a non‐confidential basis from a source other than Cloudera or its\nRepresentatives, provided that, to Intel’s knowledge, such source is not and was not bound by an obligation of\nconfidentiality to Cloudera, its Representatives or any other party with regard to such information, software, data or\nanalysis, or (C) Intel can demonstrate was independently developed without use of or reference to Confidential\nInformation by it or its Representatives without violation of this Agreement, provided such independent development\ncan reasonably be proven by written records (“Publicly Available, Pre-Existing, and Independently Developed\nInformation”). For avoidance of doubt, and notwithstanding anything to the contrary herein or in any other Transaction\nDocument, “Confidential Information” for purposes of this Agreement does not include any information, software, data,\nanalysis or other material furnished by or on behalf of Cloudera or its Representatives to Intel or its Representatives\nunder or pursuant to the Commercial Agreement (“Commercial Agreement Confidential Information”), and except as\nset forth below in this Section 1(d), all such information will be subject to the terms and conditions of the MNDA. If any\nto the extent any Confidential Information is Commercial Agreement Confidential Information and is also Shareholder\nConfidential Information, the MNDA will govern the obligations with respect to such information, unless such\ninformation was furnished by Cloudera or its Representatives directly to Intel Capital Corporation or its Representatives,\nin which case this Agreement will govern the obligations with respect to such information. If any to the extent any\nConfidential Information is Commercial Agreement Confidential Information and is also Proposed Transaction\nInformation, then (i) to the extent such Confidential Information was furnished to Intel or its Representatives after the\ncommencement of the exchange of information in connection with a Proposed Transaction (“Proposed Transaction\nCommencement”), this Agreement shall govern the obligations with respect to such information, and (ii) to the extent\nsuch information was furnished prior to the Proposed Transaction Commencement, the MNDA will govern the\nobligations with respect to such information.\n(e)\n“Intel Designee” means any Intel employee that serves as a member of the Board and/or any\nmember of the Board that Intel is entitled to elect or designate pursuant to any agreement between Intel and the\nCompany or any of its security holders or otherwise.\n(f)\n“Investor Rights Agreement” means the amended and restated agreement among the Company,\nthe Purchasers and certain other stockholders of the Company, to be dated as of or on or about the date hereof.\n(g)\n“MNDA” means the Mutual Non-Disclosure Agreement between Intel and Cloudera, dated as\nof January 29, 2014.\n(h)\n“Permitted Tender Offer” shall have the meaning given to such term in the Standstill\nAgreement.\n2\n(i)\n“Proposed Transaction” means a transaction in connection with (A) Negotiated Transaction\nDiscussions (as defined in the Standstill Agreement), or (B) a potential Sale or Acquisition (as defined in the Standstill\nAgreement) of Cloudera or its assets by or to Intel (or its affiliates) following a Competing Transaction (as defined in the\nStandstill Agreement).\n(j)\n“Representatives” of a person shall include such person’s directors, officers, employees, legal\ncounsel, accountants, and financial and other advisors, provided that such Representatives who are not employed by the\nreceiving party owe a duty of confidentiality to the receiving party.\n(k)\n“Right of First Refusal and Co‐Sale Agreement” means the amended and restated agreement\namong the Company, the Purchasers, and certain other stockholders of the Company, to be dated as of or on or about the\ndate hereof\n(l)\n“Sensitive Confidential Information” means any of the following subcategories of Confidential\nInformation that is furnished by Cloudera or its Representatives and received by the Intel Designee in connection with\nhis or her capacity as a member of the Board: (a) non‐public information about Cloudera’s financial condition,\nprojections, forecasts, prospects or plans; (b) non‐public information regarding Cloudera’s marketing and sales\nprograms, research and development, new product launches or initiatives, or leadership succession plans for Cloudera’s\nsenior officers; (c) non‐public information relating to possible business transactions such as mergers, acquisitions,\ndivestitures or joint ventures, or possible capital transactions such as an initial public offering or follow‐on public\noffering, credit facilities, share repurchases, dividends or stock splits; (d) non‐public information concerning other\ncompanies with whom Cloudera may conduct business, including information about Cloudera’s customers, suppliers,\njoint venture partners, or other companies with which the Company is under an obligation of confidentiality; and\n(e) non-public information about meetings, presentations and discussions relating to issues, proceedings, discussions,\ndeliberations and decisions between and among employees, officers and directors and their advisers, including the\nidentity, circumstances and fact of retention of any such advisers (including Board, committee and executive dynamics\nand relationships); provided, however, that Sensitive Confidential Information does not include Publicly Available, Pre-\nExisting, and Independently Developed Information\n(m)\n“Standstill Agreement” means that certain Right of First Notice and Standstill Agreement,\nbetween Cloudera and Intel, of even date herewith.\n(n)\n“Voting Agreement” means the amended and restated agreement among the Company, the\nPurchasers and certain other stockholders of the Company, to be dated as of or on or about the date hereof.\n2. Confidentiality.\n(a) Intel shall, and shall cause the Intel Designee to, (a) keep strictly confidential and take reasonable\nprecautions, at least as great as the precautions Intel takes to its own confidential information, to protect against and\nprevent the disclosure of all Board Confidential Information to third parties, and (b) not use the Board Confidential\nInformation other than in furtherance of a\n3\nBusiness Purpose (as defined below) (other than in connection with a Permitted Tender Offer); provided, however, that\nthe Intel Designee may discuss Confidential Information, other than Sensitive Confidential Information, as provided in\nSection 2(f) below, in all cases in compliance with his or her fiduciary duties to Cloudera.\n(b) Intel shall, and shall cause its Representatives to, (a) keep strictly confidential and take reasonable\nprecautions, at least as great as the precautions Intel takes to its own confidential information, to protect against and\nprevent the disclosure of all Shareholder Confidential Information to third parties; (b) not use the Shareholder\nConfidential Information for any purposes other as permitted under the Transaction Agreements (as such term is defined\nin the Series F-1 Stock Purchase Agreement dated March 21, 2014 (the “Stock Purchase Agreement”)); and (c) not\nmake any public announcement in relation to, or public comment on the fact that any Confidential Information has been\nmade available to Intel, its Affiliates or Representatives, without Cloudera’s prior written consent (unless otherwise\npermitted by Sections 4(b) or 4(c) below); provided, however, that Intel and its Representatives may disclose\nConfidential Information and facts, terms and conditions to those of its Representatives who need to know such\ninformation for the sole purpose of furthering a Business Purpose (as defined below) (other than in connection with a\nPermitted Tender Offer) if, and only if, prior to being given access to such Shareholder Confidential Information or\nbeing told such matters, such Representative is informed of the confidentiality thereof and is bound by a confidentiality\nobligation with Intel with respect to such Confidential Information.\n(c) Notwithstanding the foregoing, nothing contained in this Agreement will restrict the free movement,\nor assignment to different tasks and activities, of any employees or other permitted disclosees of Intel throughout his or\nher organization.\n(d) Nothing in this Agreement will prevent Intel or its Representatives or permitted disclosees from\nindependently developing, without use of Confidential Information, competing products or technologies, and from using,\nselling or otherwise supplying to third parties these products or technologies. Further, Intel and its permitted disclosees\nmay use Residuals (as defined below) for any purpose, including, without limitation, in the development, manufacture,\nsales, promotion, maintenance of the products of Intel; provided that this right to use Residuals does not result in or\namount to a license to Intel or its permitted disclosees under any patents, copyrights, mask works, trademarks or similar\nrights or, except as set forth in the definition of Residuals, any of Cloudera’ trade secrets, know‐how or other intellectual\nproperty rights with respect to any Confidential Information, either expressly, by implication, inducement, estoppel or\notherwise, absent a written agreement between Intel and Cloudera. The term “Residuals” means any information\nretained in the unaided memories of the employees or other permitted disclosees of the Intel or its Representatives who\nhave had access to the Confidential Information. The memory of the employees or other permitted disclosees of Intel is\nunaided if he or she did not intentionally memorize or otherwise mentally retain for reference the information for the\npurpose of retaining it and later using it or disclosing it to a third party and such employee does not know at the time of\nsuch later use that such information is the confidential information of Cloudera. Subject to the terms and conditions of\nthis Agreement, the employees and other permitted disclosees of Intel will not be restricted from using the Residuals as a\npart of his or her skill, knowledge, talent or expertise on any project.\n4\n(e) Intel shall notify Cloudera promptly upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Intel and Intel’s Representatives, and will cooperate\nwith Cloudera in every reasonable way to help Cloudera regain possession of the Confidential Information and prevent\nits further unauthorized use or disclosure.\n(f) Intel shall not seek to obtain Confidential Information from an Intel Designee that the Intel Designee\nreceives from Cloudera or its Representatives in his or her capacity as a member of the Board. Notwithstanding the\nforegoing, the Intel Designee may discuss Confidential Information, other than Sensitive Confidential Information, with\nIntel’s Representatives who need to know such Confidential Information (i) to monitor Intel’s relationship with and\ninvestment in the Company, (ii) in furtherance of the Commercial Agreement, or (iii) to evaluate and enter into\nnegotiations and execution of a transaction in connection with (A) Negotiated Transaction Discussions (as such term is\ndefined in the Standstill Agreement), (B) a potential Sale or Acquisition (as defined in the Standstill Agreement) of\nCloudera by Intel or any affiliate at a time when Intel’s obligations under the Standstill Agreement do not apply, (C) a\nPermitted Tender Offer , or (D) as required for securities law purposes (each, a “Business Purpose”); provided that, to\nthe extent Intel or its Affiliates or Representatives receive Sensitive Confidential Information despite the first sentence of\nthis Section 2(f), Intel or its Affiliates or Representatives shall not use (or disclose) such information for any purpose.\n(g) Intel shall, and shall cause its Representatives to, (a) keep strictly confidential and take reasonable\nprecautions, at least as great as the precautions Intel takes to its own confidential information, to protect against and\nprevent the disclosure to third parties of (i) all Proposed Transaction Information, (ii) the fact that such Party is\nevaluating or has evaluated or considered a Proposed Transaction, (iii) the fact that discussions or negotiations are taking\nplace or have taken place relating to a Proposed Transaction, (iv) the substance of any discussions or negotiations that\ntake place regarding a Proposed Transaction, and (v) all of the terms, conditions or other facts relating to a Proposed\nTransaction; and; (b) not use the Proposed Transaction Information for any purposes other than enabling Intel to evaluate\nCloudera and enter into negotiations and execution of a Proposed Transaction (other than a Permitted Tender Offer;\nprovided, however, that Intel and its Representatives may disclose information, facts, terms and conditions identified in\nsubsections (i) through (v) above to those of its Representatives who need to know such information for the purpose of\nenabling Intel to evaluate Cloudera and enter into negotiations and execution of a Proposed Transaction (other than a\nPermitted Tender Offer.\nNotwithstanding the foregoing, in connection with a Permitted Tender Offer, Intel may use such\nConfidential Information (other than Sensitive Confidential Information). In addition, notwithstanding the foregoing, in\nconnection with a Permitted Tender Offer, Intel may disclose such Confidential Information (other than Sensitive\nConfidential Information) as Intel believes is required to conduct a tender offer under United States federal securities\nlaws.\n3. No Warranties.\nCloudera makes no express or implied representation or warranty as to the accuracy or completeness of any of\nthe information furnished to Intel or its Representatives pursuant hereto. Neither Cloudera nor any of its Representatives\nshall have any liability to Intel or its Representatives\n5\nrelating to or arising from the use of or reliance upon any information or any errors or omissions therein.\n4. Legal Requirements.\n(a) If Intel or its Representative becomes subject to a legal requirement (by subpoena, oral deposition,\ninterrogatories, request for production of documents, civil investigative demand, administrative order or otherwise) to\ndisclose any Confidential Information or any other matter required by Section 2 to be kept confidential, Intel (i) will\npromptly notify Cloudera of the existence, terms and circumstances of such requirement so that Cloudera may seek an\nappropriate protective order or waive compliance with the terms of this Agreement, and (ii) will, and will cause its\nRepresentatives to, use commercially reasonable efforts to cooperate with Cloudera in seeking a protective order or other\nassurance that confidential treatment will be accorded to the Confidential Information or other matter.\n(b) If Intel or its Representative having complied with Section 4(a) is compelled to make disclosure in\nresponse to a requirement described in Section 4(a), such person may make such disclosure without liability hereunder\nnotwithstanding the absence of a protective order or waiver of compliance hereunder; provided that (i) Intel and/or its\nRepresentative only disclose that portion of Cloudera’s Confidential Information or other matter required by Section 2 to\nbe kept confidential which Intel’s counsel advises is legally required to be disclosed, and (ii) Intel and/or its\nRepresentative exercises its commercially reasonable efforts to preserve the confidentiality of the remainder of\nCloudera’s other Confidential Information.\n(c) If Intel is advised by its legal counsel that disclosure of Cloudera’s Confidential Information or a\nmatter required by Section 2 to be kept confidential is required by applicable law, rule or regulation, including the rules\nor regulations of a national securities exchange or other exchange on which Intel’s securities are listed for trading and in\nits filings with the Securities Exchange Commission as is required under applicable federal securities laws, Intel shall\ngive notice thereof to Cloudera as promptly as practicable under the circumstances and shall disclose only such matters\nas its legal counsel advises is required by such law, rule or regulation, provided that Intel exercises its commercially\nreasonable efforts to preserve the confidentiality of Cloudera’s Confidential Information, including, without limitation,\nby cooperating with Cloudera to obtain an appropriate protective order or other assurance that confidential treatment will\nbe accorded Cloudera’s Confidential Information by any third party to which disclosure is made. If Intel complies with\nthe preceding sentence, it may make such disclosure without liability hereunder notwithstanding the absence of a\nprotective order or waiver of compliance hereunder.\n5. Destruction upon Termination of Information Rights. All Confidential Information shall be and remain the\nproperty of Cloudera. All Confidential Information, whether in hard copy form or intangible media such as electronic\nmail or computer files, shall be returned to Cloudera or destroyed and no copies shall be retained by Intel or its\nRepresentatives: (a) with respect to all Confidential Information, immediately upon Cloudera’s request following: (i) a\nCompetitor Investment (as such term is defined in the Investor Rights Agreement); (ii) after Intel no longer holds at least\n13% of the securities in Cloudera (as adjusted for stock splits, reverse stock splits and the like) (as defined therein) on\nthe Closing Date (as defined therein); provided, further, that\n6\nin the case of both (i) and (ii), Intel and its Representatives in its or their accounting and financial reporting function\nshall be entitled to retain Confidential Information that is necessary for reporting purposes, including Intel’s unaudited\nquarterly financial reporting and Intel financial statement reporting in accordance with GAAP and for audit purposes,\nwhether internal audits or with respect to Intel’s independent public accountants, so long as such retained Confidential\nInformation is used only for the purpose described in this proviso; and (b) with respect to all Proposed Transaction\nInformation, immediately upon Cloudera’s request, which request shall not be made during the Waiting Period (as\ndefined in the Standstill Agreement), unless Intel has notified Cloudera that it has determined that it does not desire or\nintend to continue Negotiated Transaction Discussions or a potential Sale or Acquisition of Cloudera by Intel; provided,\nhowever, that, notwithstanding the foregoing, any portion of the Confidential Information that consists of reports,\nanalyses, compilations, data, studies or other documents developed or prepared by or for Intel or its Representatives that\ninclude, incorporate, refer to, reflect or are based in whole or in part on any Confidential Information will be destroyed\nimmediately upon such request; provided further that any such destruction of such information shall be certified in\nwriting to Cloudera. Notwithstanding the return or destruction of the Confidential Information, Intel and its\nRepresentatives will continue to be bound by its obligations of confidentiality, non-use and other obligations hereunder.\n6. Intel Representatives. Intel will be responsible for any breach of this Agreement by the Intel Designee with\nrespect to the Board Confidential Information or by its Representatives with respect to any Confidential Information, and\nagrees, at its sole expense, to take reasonable measures, at such time as it becomes aware of an imminent breach of the\nconfidentiality restrictions by one of its Representatives, to restrain such Representative from prohibited or unauthorized\ndisclosure or use of such Confidential Information.\n7. Compliance with Insider Trading and Public Disclosure Laws. Intel acknowledges that Intel may become\naware of material, nonpublic information concerning Cloudera. Intel acknowledges that the United States securities laws\nprohibit any person who has material, nonpublic information concerning a company whose securities are publicly traded\nfrom purchasing or selling securities of that company or disclosing such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nAccordingly, for so long as Intel holds material, nonpublic information concerning Cloudera, Intel agrees to take\nreasonable precautions to prevent any trading in the securities of Cloudera, including by Intel’s Affiliates and\nRepresentatives, while in possession of material, nonpublic information.\n8. Disclaimer of Corporation Opportunity. Cloudera acknowledges that Intel may have, from time to time,\ninformation that may be of interest to the Cloudera (“Intel Information”) including, by way of example only, (a) Intel’s\ntechnologies, plans and services, (b) current and future investments Intel has made, may make, may consider or may\nbecome aware of with respect to other companies and other technologies, products and services, including, without\nlimitation, technologies, products and services that may be competitive with those of Cloudera, and (c) developments\nwith respect to the technologies, products and services, and plans and strategies relating thereto, of other companies,\nincluding, without limitation, companies that may be competitive with Cloudera; provided, that for the avoidance of\ndoubt Intel Information shall not include any Confidential Information provided by Cloudera to Intel or its\nRepresentatives hereunder\n7\nor that the Intel Designee receives in his or her capacity as a member of the Board. Cloudera, as a material part of the\nconsideration for this Agreement and the transactions contemplated by the Transaction Agreements (as defined in the\nStock Purchase Agreement), agrees that Intel and the Intel Designee shall have no duty to disclose any Intel Information\nto Cloudera or permit Cloudera to participate in any projects or investments based on any Intel Information, or to\notherwise take advantage of any opportunity that may be of interest to Cloudera if it were aware of such Intel\nInformation, and hereby waives, to the extent permitted by law, any claim based on the corporate opportunity doctrine or\notherwise that could limit Intel’s ability to pursue opportunities based on such Intel Information or that would require\nIntel or the Intel Designee to disclose any such Information to Cloudera or offer any opportunity relating thereto to\nCloudera.\n10. Miscellaneous.\n(a)\nPower and Authority. Each Party hereby represents that it has the power and authority\n(corporate power and corporate authority, if applicable) to execute and deliver this Agreement and that this Agreement\nconstitutes a valid and binding agreement of such Party, enforceable in accordance with its terms.\n(b)\nCosts and Expenses; Remedies. Each of the Parties will bear its own costs and expenses,\nincluding legal fees and fees of other advisors, with respect to any action to enforce its rights under this Agreement by\nlegal proceedings. It is understood and agreed that money damages would not be a sufficient remedy for any breach of\nthis Agreement and that the non‐breaching Party shall be entitled to injunctive relief. Such remedy shall not be deemed\nto be the exclusive remedy for the breach of this Agreement but shall be in addition to all other remedies available at law\nor in equity.\n(c)\nDelays or Omissions; Modification. No delay or omission to exercise any right, power, or\nremedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement,\nnor any partial exercise thereof, shall impair any such right, power, or remedy of such nonbreaching or nondefaulting\nparty, nor shall it be construed to be a waiver of or acquiescence to any such breach or default, or to any similar breach\nor default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other\nbreach or default theretofore or thereafter occurring. All remedies, whether under this Agreement or by law or otherwise\nafforded to any party, shall be cumulative and not alternative. No modification of this Agreement, termination or waiver\nof the terms and conditions hereof shall be binding upon either Party hereto, unless approved in writing by each such\nparty.\n(d)\nCounterparts; Facsimile. This Agreement may be executed in two or more counterparts, each of\nwhich shall be deemed an original, but all of which together shall constitute one and the same instrument. This\nAgreement may also be executed and delivered by facsimile signature and in two or more counterparts, each of which\nshall be deemed an original, but all of which together shall constitute one and the same instrument\n(e)\nTitles and Subtitles. The titles and subtitles used in this Agreement are for convenience only\nand are not to be considered in construing or interpreting this Agreement\n8\n(f)\nNotices. All notices and other communications given or made pursuant to this Agreement shall\nbe in writing and shall be deemed effectively delivered upon the earlier of actual receipt or: (i) personal delivery to the\nparty to be notified; (ii) when sent, if sent by electronic mail or facsimile during the recipient’s normal business hours,\nand if not sent during normal business hours, then on the recipient’s next business day; (iii) five (5) days after having\nbeen sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) business day after the\nbusiness day of deposit with a nationally recognized overnight courier, freight prepaid, specifying next day delivery, with\nwritten verification of receipt. If notice is sent to Intel, it shall be sent to Intel Corporation, c/o Intel Capital Corporation,\nAttn: Intel Capital Portfolio Manager, 2200 Mission College Blvd, M/S RN6-59, Santa Clara, CA 95054, with a copy,\nwhich shall not constitute notice, by e-mail to: portfolio.manager@intel.com. If notice is given to Cloudera, it shall be\nsent to 1001 Page Mill Road, Building 2, Palo Alto, CA 94304, Attention: Chief Executive Officer; and a copy (which\nshall not constitute notice) shall also be given to Fenwick & West LLP, 801 California Street, Mountain View,\nCA 94041, Attn: David A. Bell.\n(g)\nSeverability. In case any one or more of the provisions contained in this Agreement is for any\nreason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not\naffect any other provision of this Agreement, and such invalid, illegal, or unenforceable provision shall be reformed and\nconstrued so that it will be valid, legal, and enforceable to the maximum extent permitted by law.\n(h)\nEntire Agreement. This Agreement constitutes the full and entire understanding and agreement\namong the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the\nsubject matter hereof existing between the parties is expressly canceled. For avoidance of doubt, and notwithstanding\nanything to the contrary herein or in any other Transaction Document, information, software, data, analysis and other\nmaterial furnished by or on behalf of Cloudera or its Representatives to Intel or its Representatives under or pursuant to\nthe Commercial Agreement will be subject to the terms and conditions of the MNDA and will not be subject to the terms\nof this Agreement (regardless of whether the same information, software, data, analysis or other material may also have\nbeen furnished under or pursuant to this Agreement or one or more of the Transaction Documents).\n(i)\nGoverning Law. This agreement shall be governed in all respects, including without limitation\nvalidity, interpretation and effect, by the laws of the state of Delaware applicable to contracts executed and to be\nperformed wholly within such state without giving effect to the choice of law principles of such state.\n(j)\nDispute Resolution. Each of the parties hereto agrees to waive any bonding requirement under\nany applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. Furthermore, each of\nthe parties hereto (a) consents to submit itself to the personal jurisdiction of the Delaware Court of Chancery or, to the\nextent that the Delaware Court of Chancery declines to exercise jurisdiction over the matter, other federal or state courts\nof the State of Delaware in the event any dispute arises out of this Agreement or the transactions contemplated by this\nAgreement, (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for\nleave from any such court, (c) agrees that it shall not bring any action relating\n9\nto this Agreement or the transactions contemplated by this Agreement in any court other than the Delaware Court of\nChancery or, to the extent that the Delaware Court of Chancery declines to exercise jurisdiction over the matter, other\nfederal or state courts of the State of Delaware, and (d) each of the parties irrevocably consents to service of process by a\nreputable overnight mail delivery service, signature requested, to the address set forth in Section 10(f) of this Agreement\nor as otherwise provided by applicable law.\n(k)\nSuccessors and Assigns; No Third Party Beneficiaries. The terms and conditions of this\nAgreement inure to the benefit of and are binding upon the respective successors and permitted assignees of the Parties.\nNothing in this Agreement, express or implied, is intended to confer upon either Party other than the parties hereto or\ntheir respective successors and permitted assignees any rights, remedies, obligations or liabilities under or by reason of\nthis Agreement, except as expressly provided herein.\n[Signatures Follow]\n10\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.\nCLOUDERA, INC.\nBy: /s/ Tom Reilly\nTom Reilly\nChief Executive Officer\nINTEL CORPORATION\nBy:\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.\nCLOUDERA, INC.\nBy:\nTom Reilly\nChief Executive Officer\nINTEL CORPORATION\nBy: /s/ Cary Klafter\nCary Klafter\nCorporate Secretary\n12	EX-4.04 5 s-1exhibit404.htm EXHIBIT 4.04\nExhibit 4.04\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is entered into as of March 21, 2014 (the “Effective Date”)\nby and between Intel Corporation (“Intel”’) and Cloudera, Inc. (“Cloudera,” and, together with Intel, each a “Party” or\ntogether the “Parties”).\nWHEREAS, Cloudera may provide certain confidential information (i) to Intel as a result of its notice,\ninformation and inspection rights as a shareholder of Cloudera and in connection with negotiating Proposed Transactions\n(as defined below) (as set forth in more detail below) and (ii) to the Intel Designee (as defined below).\nWHEREAS, any confidential information provided to or disclosed by either party pursuant to the terms of the\nCommercial Agreement will be governed by the terms of the MNDA and not this Agreement.\nNOW, THEREFORE, in consideration of the foregoing and the agreements contained herein, the Parties\nintending to be legally bound agree as follows:\n1. Definitions. For the purposes of this Agreement, the following terms have the following meanings:\n(a) “Affiliate” of a person shall include any person that, directly or indirectly, controls, is\ncontrolled by or is under common control with such person. The term “control” means the possession of the power,\ndirectly or indirectly, to direct or cause the direction of the management and affairs of a person.\n(b) “Board” means the Board of Directors of Cloudera.\n(0) “Commercial Agreement” means that certain Collaboration and Optimization Agreement,\nbetween the Parties, dated as of March 21, 2014.\n(d) “Confidential Information” shall mean all information, software, data and analysis (including\nwithout limitation information in tangible or intangible form relating to and/or including released or unreleased products\nand services (including without limitation any product or service names, titles, designs, ideas, concepts, scripts and\nschedules), the marketing or promotion of any product, business policies or practices, business plans and forecasts,\npotential transactions and business combinations and information received from others that Cloudera is obligated to treat\nas confidential) in each case that is furnished by Cloudera or its Representatives, and provided to (i) the Intel Designee\nby reason of his or her position as a member of the Board (the “Board Confidential Information”), (ii) Intel or its\nRepresentatives in the form of non-public information received pursuant to the Investor Rights Agreement, the Right of\nFirst Refusal and Co-Sale Agreement, or the Voting Agreement, or pursuant to shareholder information or inspection\nrights under applicable law ( the “Shareholder Confidential Information”), or (iii) to Intel or its Representatives\npursuant to the Standstill Agreement in order to enable Intel to evaluate Cloudera and enter into negotiations and\nexecution of a Proposed Transaction (“Proposed Transaction Information”) shall be considered Confidential\nInformation, as well as any analyses, compilations,\nstudies, documents or other material, regardless of the form thereof, prepared by Intel or its Representatives containing\nor based in whole or in part upon such information, software, data or analysis. Confidential Information does not include\ninformation, software, data or analysis that: (A) is when furnished or thereafter becomes publicly available other than as\na result of a disclosure by Intel or its Representatives in violation of this Agreement, (B) is already in the possession of\nor becomes available to Intel or its Representatives on a non-confidential basis from a source other than Cloudera or its\nRepresentatives, provided that, to Intel’s knowledge, such source is not and was not bound by an obligation of\nconfidentiality to Cloudera, its Representatives or any other party with regard to such information, software, data or\nanalysis, or (C) Intel can demonstrate was independently developed without use of or reference to Confidential\nInformation by it or its Representatives without violation of this Agreement, provided such independent development\ncan reasonably be proven by written records (“Publicly Available, Pre-Existing, and Independently Developed\nInformation”). For avoidance of doubt, and notwithstanding anything to the contrary herein or in any other Transaction\nDocument, “Confidential Information” for purposes of this Agreement does not include any information, software, data,\nanalysis or other material furnished by or on behalf of Cloudera or its Representatives to Intel or its Representatives\nunder or pursuant to the Commercial Agreement (“Commercial Agreement Confidential Information™), and except as\nset forth below in this Section 1(d), all such information will be subject to the terms and conditions of the MNDA. If any\nto the extent any Confidential Information is Commercial Agreement Confidential Information and is also Shareholder\nConfidential Information, the MNDA will govern the obligations with respect to such information, unless such\ninformation was furnished by Cloudera or its Representatives directly to Intel Capital Corporation or its Representatives,\nin which case this Agreement will govern the obligations with respect to such information. If any to the extent any\nConfidential Information is Commercial Agreement Confidential Information and is also Proposed Transaction\nInformation, then (i) to the extent such Confidential Information was furnished to Intel or its Representatives after the\ncommencement of the exchange of information in connection with a Proposed Transaction (“Proposed Transaction\nCommencement”), this Agreement shall govern the obligations with respect to such information, and (ii) to the extent\nsuch information was furnished prior to the Proposed Transaction Commencement, the MNDA will govern the\nobligations with respect to such information.\n(e) “Intel Designee” means any Intel employee that serves as a member of the Board and/or any\nmember of the Board that Intel is entitled to elect or designate pursuant to any agreement between Intel and the\nCompany or any of its security holders or otherwise.\nH “Investor Rights Agreement” means the amended and restated agreement among the Company,\nthe Purchasers and certain other stockholders of the Company, to be dated as of or on or about the date hereof.\n() “MNDA” means the Mutual Non-Disclosure Agreement between Intel and Cloudera, dated as\nof January 29, 2014.\n(h) “Permitted Tender Offer” shall have the meaning given to such term in the Standstill\nAgreement.\n1) “Proposed Transaction” means a transaction in connection with (A) Negotiated Transaction\nDiscussions (as defined in the Standstill Agreement), or (B) a potential Sale or Acquisition (as defined in the Standstill\nAgreement) of Cloudera or its assets by or to Intel (or its affiliates) following a Competing Transaction (as defined in the\nStandstill Agreement).\nG “Representatives” of a person shall include such person’s directors, officers, employees, legal\ncounsel, accountants, and financial and other advisors, provided that such Representatives who are not employed by the\nreceiving party owe a duty of confidentiality to the receiving party.\n(k) “Right of First Refusal and Co-Sale Agreement” means the amended and restated agreement\namong the Company, the Purchasers, and certain other stockholders of the Company, to be dated as of or on or about the\ndate hereof\nO “Sensitive Confidential Information” means any of the following subcategories of Confidential\nInformation that is furnished by Cloudera or its Representatives and received by the Intel Designee in connection with\nhis or her capacity as a member of the Board: (a) non-public information about Cloudera’s financial condition,\nprojections, forecasts, prospects or plans; (b) non-public information regarding Cloudera’s marketing and sales\nprograms, research and development, new product launches or initiatives, or leadership succession plans for Cloudera’s\nsenior officers; (c) non-public information relating to possible business transactions such as mergers, acquisitions,\ndivestitures or joint ventures, or possible capital transactions such as an initial public offering or follow-on public\noffering, credit facilities, share repurchases, dividends or stock splits; (d) non-public information concerning other\ncompanies with whom Cloudera may conduct business, including information about Cloudera’s customers, suppliers,\njoint venture partners, or other companies with which the Company is under an obligation of confidentiality; and\n(e) non-public information about meetings, presentations and discussions relating to issues, proceedings, discussions,\ndeliberations and decisions between and among employees, officers and directors and their advisers, including the\nidentity, circumstances and fact of retention of any such advisers (including Board, committee and executive dynamics\nand relationships); provided, however, that Sensitive Confidential Information does not include Publicly Available, Pre-\nExisting, and Independently Developed Information\n(m) “Standstill Agreement” means that certain Right of First Notice and Standstill Agreement,\nbetween Cloudera and Intel, of even date herewith.\n(n) “Voting Agreement” means the amended and restated agreement among the Company, the\nPurchasers and certain other stockholders of the Company, to be dated as of or on or about the date hereof.\n2. Confidentiality.\n(@) Intel shall, and shall cause the Intel Designee to, (a) keep strictly confidential and take reasonable\nprecautions, at least as great as the precautions Intel takes to its own confidential information, to protect against and\nprevent the disclosure of all Board Confidential Information to third parties, and (b) not use the Board Confidential\nInformation other than in furtherance of a\nBusiness Purpose (as defined below) (other than in connection with a Permitted Tender Offer); provided, however, that\nthe Intel Designee may discuss Confidential Information, other than Sensitive Confidential Information, as provided in\nSection 2(f) below, in all cases in compliance with his or her fiduciary duties to Cloudera.\n(b) Intel shall, and shall cause its Representatives to, (a) keep strictly confidential and take reasonable\nprecautions, at least as great as the precautions Intel takes to its own confidential information, to protect against and\nprevent the disclosure of all Shareholder Confidential Information to third parties; (b) not use the Shareholder\nConfidential Information for any purposes other as permitted under the Transaction Agreements (as such term is defined\nin the Series F-1 Stock Purchase Agreement dated March 21, 2014 (the “Stock Purchase Agreement”)); and (c) not\nmake any public announcement in relation to, or public comment on the fact that any Confidential Information has been\nmade available to Intel, its Affiliates or Representatives, without Cloudera’s prior written consent (unless otherwise\npermitted by Sections 4(b) or 4(c) below); provided, however, that Intel and its Representatives may disclose\nConfidential Information and facts, terms and conditions to those of its Representatives who need to know such\ninformation for the sole purpose of furthering a Business Purpose (as defined below) (other than in connection with a\nPermitted Tender Offer) if, and only if, prior to being given access to such Shareholder Confidential Information or\nbeing told such matters, such Representative is informed of the confidentiality thereof and is bound by a confidentiality\nobligation with Intel with respect to such Confidential Information.\n(c) Notwithstanding the foregoing, nothing contained in this Agreement will restrict the free movement,\nor assignment to different tasks and activities, of any employees or other permitted disclosees of Intel throughout his or\nher organization.\n(d) Nothing in this Agreement will prevent Intel or its Representatives or permitted disclosees from\nindependently developing, without use of Confidential Information, competing products or technologies, and from using,\nselling or otherwise supplying to third parties these products or technologies. Further, Intel and its permitted disclosees\nmay use Residuals (as defined below) for any purpose, including, without limitation, in the development, manufacture,\nsales, promotion, maintenance of the products of Intel; provided that this right to use Residuals does not result in or\namount to a license to Intel or its permitted disclosees under any patents, copyrights, mask works, trademarks or similar\nrights or, except as set forth in the definition of Residuals, any of Cloudera’ trade secrets, know-how or other intellectual\nproperty rights with respect to any Confidential Information, either expressly, by implication, inducement, estoppel or\notherwise, absent a written agreement between Intel and Cloudera. The term “Residuals” means any information\nretained in the unaided memories of the employees or other permitted disclosees of the Intel or its Representatives who\nhave had access to the Confidential Information. The memory of the employees or other permitted disclosees of Intel is\nunaided if he or she did not intentionally memorize or otherwise mentally retain for reference the information for the\npurpose of retaining it and later using it or disclosing it to a third party and such employee does not know at the time of\nsuch later use that such information is the confidential information of Cloudera. Subject to the terms and conditions of\nthis Agreement, the employees and other permitted disclosees of Intel will not be restricted from using the Residuals as a\npart of his or her skill, knowledge, talent or expertise on any project.\n(e) Intel shall notify Cloudera promptly upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Intel and Intel’s Representatives, and will cooperate\nwith Cloudera in every reasonable way to help Cloudera regain possession of the Confidential Information and prevent\nits further unauthorized use or disclosure.\n(f) Intel shall not seek to obtain Confidential Information from an Intel Designee that the Intel Designee\nreceives from Cloudera or its Representatives in his or her capacity as a member of the Board. Notwithstanding the\nforegoing, the Intel Designee may discuss Confidential Information, other than Sensitive Confidential Information, with\nIntel’s Representatives who need to know such Confidential Information (i) to monitor Intel’s relationship with and\ninvestment in the Company, (ii) in furtherance of the Commercial Agreement, or (iii) to evaluate and enter into\nnegotiations and execution of a transaction in connection with (A) Negotiated Transaction Discussions (as such term is\ndefined in the Standstill Agreement), (B) a potential Sale or Acquisition (as defined in the Standstill Agreement) of\nCloudera by Intel or any affiliate at a time when Intel’s obligations under the Standstill Agreement do not apply, (C) a\nPermitted Tender Offer , or (D) as required for securities law purposes (each, a “Business Purpose”); provided that, to\nthe extent Intel or its Affiliates or Representatives receive Sensitive Confidential Information despite the first sentence of\nthis Section 2(f), Intel or its Affiliates or Representatives shall not use (or disclose) such information for any purpose.\n(g) Intel shall, and shall cause its Representatives to, (a) keep strictly confidential and take reasonable\nprecautions, at least as great as the precautions Intel takes to its own confidential information, to protect against and\nprevent the disclosure to third parties of (i) all Proposed Transaction Information, (ii) the fact that such Party is\nevaluating or has evaluated or considered a Proposed Transaction, (iii) the fact that discussions or negotiations are taking\nplace or have taken place relating to a Proposed Transaction, (iv) the substance of any discussions or negotiations that\ntake place regarding a Proposed Transaction, and (v) all of the terms, conditions or other facts relating to a Proposed\nTransaction; and; (b) not use the Proposed Transaction Information for any purposes other than enabling Intel to evaluate\nCloudera and enter into negotiations and execution of a Proposed Transaction (other than a Permitted Tender Offer;\nprovided, however, that Intel and its Representatives may disclose information, facts, terms and conditions identified in\nsubsections (i) through (v) above to those of its Representatives who need to know such information for the purpose of\nenabling Intel to evaluate Cloudera and enter into negotiations and execution of a Proposed Transaction (other than a\nPermitted Tender Offer.\nNotwithstanding the foregoing, in connection with a Permitted Tender Offer, Intel may use such\nConfidential Information (other than Sensitive Confidential Information). In addition, notwithstanding the foregoing, in\nconnection with a Permitted Tender Offer, Intel may disclose such Confidential Information (other than Sensitive\nConfidential Information) as Intel believes is required to conduct a tender offer under United States federal securities\nlaws.\n3. No Warranties.\nCloudera makes no express or implied representation or warranty as to the accuracy or completeness of any of\nthe information furnished to Intel or its Representatives pursuant hereto. Neither Cloudera nor any of its Representatives\nshall have any liability to Intel or its Representatives\nrelating to or arising from the use of or reliance upon any information or any errors or omissions therein.\n4. Legal Requirements.\n(a) If Intel or its Representative becomes subject to a legal requirement (by subpoena, oral deposition,\ninterrogatories, request for production of documents, civil investigative demand, administrative order or otherwise) to\ndisclose any Confidential Information or any other matter required by Section 2 to be kept confidential, Intel (i) will\npromptly notify Cloudera of the existence, terms and circumstances of such requirement so that Cloudera may seek an\nappropriate protective order or waive compliance with the terms of this Agreement, and (ii) will, and will cause its\nRepresentatives to, use commercially reasonable efforts to cooperate with Cloudera in seeking a protective order or other\nassurance that confidential treatment will be accorded to the Confidential Information or other matter.\n(b) If Intel or its Representative having complied with Section 4(a) is compelled to make disclosure in\nresponse to a requirement described in Section 4(a), such person may make such disclosure without liability hereunder\nnotwithstanding the absence of a protective order or waiver of compliance hereunder; provided that (i) Intel and/or its\nRepresentative only disclose that portion of Cloudera’s Confidential Information or other matter required by Section 2 to\nbe kept confidential which Intel’s counsel advises is legally required to be disclosed, and (ii) Intel and/or its\nRepresentative exercises its commercially reasonable efforts to preserve the confidentiality of the remainder of\nCloudera’s other Confidential Information.\n(c) If Intel is advised by its legal counsel that disclosure of Cloudera’s Confidential Information or a\nmatter required by Section 2 to be kept confidential is required by applicable law, rule or regulation, including the rules\nor regulations of a national securities exchange or other exchange on which Intel’s securities are listed for trading and in\nits filings with the Securities Exchange Commission as is required under applicable federal securities laws, Intel shall\ngive notice thereof to Cloudera as promptly as practicable under the circumstances and shall disclose only such matters\nas its legal counsel advises is required by such law, rule or regulation, provided that Intel exercises its commercially\nreasonable efforts to preserve the confidentiality of Cloudera’s Confidential Information, including, without limitation,\nby cooperating with Cloudera to obtain an appropriate protective order or other assurance that confidential treatment will\nbe accorded Cloudera’s Confidential Information by any third party to which disclosure is made. If Intel complies with\nthe preceding sentence, it may make such disclosure without liability hereunder notwithstanding the absence of a\nprotective order or waiver of compliance hereunder.\n5. Destruction upon Termination of Information Rights. All Confidential Information shall be and remain the\nproperty of Cloudera. All Confidential Information, whether in hard copy form or intangible media such as electronic\nmail or computer files, shall be returned to Cloudera or destroyed and no copies shall be retained by Intel or its\nRepresentatives: (a) with respect to all Confidential Information, immediately upon Cloudera’s request following: (i) a\nCompetitor Investment (as such term is defined in the Investor Rights Agreement); (ii) after Intel no longer holds at least\n13% of the securities in Cloudera (as adjusted for stock splits, reverse stock splits and the like) (as defined therein) on\nthe Closing Date (as defined therein); provided, further, that\nin the case of both (i) and (ii), Intel and its Representatives in its or their accounting and financial reporting function\nshall be entitled to retain Confidential Information that is necessary for reporting purposes, including Intel’s unaudited\nquarterly financial reporting and Intel financial statement reporting in accordance with GAAP and for audit purposes,\nwhether internal audits or with respect to Intel’s independent public accountants, so long as such retained Confidential\nInformation is used only for the purpose described in this proviso; and (b) with respect to all Proposed Transaction\nInformation, immediately upon Cloudera’s request, which request shall not be made during the Waiting Period (as\ndefined in the Standstill Agreement), unless Intel has notified Cloudera that it has determined that it does not desire or\nintend to continue Negotiated Transaction Discussions or a potential Sale or Acquisition of Cloudera by Intel; provided,\nhowever, that, notwithstanding the foregoing, any portion of the Confidential Information that consists of reports,\nanalyses, compilations, data, studies or other documents developed or prepared by or for Intel or its Representatives that\ninclude, incorporate, refer to, reflect or are based in whole or in part on any Confidential Information will be destroyed\nimmediately upon such request; provided further that any such destruction of such information shall be certified in\nwriting to Cloudera. Notwithstanding the return or destruction of the Confidential Information, Intel and its\nRepresentatives will continue to be bound by its obligations of confidentiality, non-use and other obligations hereunder.\n6. Intel Representatives. Intel will be responsible for any breach of this Agreement by the Intel Designee with\nrespect to the Board Confidential Information or by its Representatives with respect to any Confidential Information, and\nagrees, at its sole expense, to take reasonable measures, at such time as it becomes aware of an imminent breach of the\nconfidentiality restrictions by one of its Representatives, to restrain such Representative from prohibited or unauthorized\ndisclosure or use of such Confidential Information.\n7.  Compliance with Insider Trading and Public Disclosure Laws. Intel acknowledges that Intel may become\naware of material, nonpublic information concerning Cloudera. Intel acknowledges that the United States securities laws\nprohibit any person who has material, nonpublic information concerning a company whose securities are publicly traded\nfrom purchasing or selling securities of that company or disclosing such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nAccordingly, for so long as Intel holds material, nonpublic information concerning Cloudera, Intel agrees to take\nreasonable precautions to prevent any trading in the securities of Cloudera, including by Intel’s Affiliates and\nRepresentatives, while in possession of material, nonpublic information.\ninformation that may be of interest to the Cloudera (“Intel Information™) including, by way of example only, (a) Intel’s\ntechnologies, plans and services, (b) current and future investments Intel has made, may make, may consider or may\nbecome aware of with respect to other companies and other technologies, products and services, including, without\nlimitation, technologies, products and services that may be competitive with those of Cloudera, and (c) developments\nwith respect to the technologies, products and services, and plans and strategies relating thereto, of other companies,\nincluding, without limitation, companies that may be competitive with Cloudera; provided, that for the avoidance of\ndoubt Intel Information shall not include any Confidential Information provided by Cloudera to Intel or its\nRepresentatives hereunder\n8.  Disclaimer of Corporation Opportunity. Cloudera acknowledges that Intel may have, from time to time,\nor that the Intel Designee receives in his or her capacity as a member of the Board. Cloudera, as a material part of the\nconsideration for this Agreement and the transactions contemplated by the Transaction Agreements (as defined in the\nStock Purchase Agreement), agrees that Intel and the Intel Designee shall have no duty to disclose any Intel Information\nto Cloudera or permit Cloudera to participate in any projects or investments based on any Intel Information, or to\notherwise take advantage of any opportunity that may be of interest to Cloudera if it were aware of such Intel\nInformation, and hereby waives, to the extent permitted by law, any claim based on the corporate opportunity doctrine or\notherwise that could limit Intel’s ability to pursue opportunities based on such Intel Information or that would require\nIntel or the Intel Designee to disclose any such Information to Cloudera or offer any opportunity relating thereto to\nCloudera.\n10. Miscellaneous.\n(a) Power and Authority. Each Party hereby represents that it has the power and authority\n(corporate power and corporate authority, if applicable) to execute and deliver this Agreement and that this Agreement\nconstitutes a valid and binding agreement of such Party, enforceable in accordance with its terms.\nCosts and Expenses;_Remedies. Each of the Parties will bear its own costs and expenses,\nincluding legal fees and fees of other advisors, with respect to any action to enforce its rights under this Agreement by\nlegal proceedings. It is understood and agreed that money damages would not be a sufficient remedy for any breach of\nthis Agreement and that the non-breaching Party shall be entitled to injunctive relief. Such remedy shall not be deemed\nto be the exclusive remedy for the breach of this Agreement but shall be in addition to all other remedies available at law\nor in equity.\n \n() Delays or Omissions;_Modification. No delay or omission to exercise any right, power, or\nremedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement,\nnor any partial exercise thereof, shall impair any such right, power, or remedy of such nonbreaching or nondefaulting\nparty, nor shall it be construed to be a waiver of or acquiescence to any such breach or default, or to any similar breach\nor default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other\nbreach or default theretofore or thereafter occurring. All remedies, whether under this Agreement or by law or otherwise\nafforded to any party, shall be cumulative and not alternative. No modification of this Agreement, termination or waiver\nof the terms and conditions hereof shall be binding upon either Party hereto, unless approved in writing by each such\nparty.\n(d) Counterparts; Facsimile. This Agreement may be executed in two or more counterparts, each of\nwhich shall be deemed an original, but all of which together shall constitute one and the same instrument. This\nAgreement may also be executed and delivered by facsimile signature and in two or more counterparts, each of which\nshall be deemed an original, but all of which together shall constitute one and the same instrument\n(e) Titles and Subtitles. The titles and subtitles used in this Agreement are for convenience only\nand are not to be considered in construing or interpreting this Agreement\nH Notices. All notices and other communications given or made pursuant to this Agreement shall\nbe in writing and shall be deemed effectively delivered upon the earlier of actual receipt or: (i) personal delivery to the\nparty to be notified; (ii) when sent, if sent by electronic mail or facsimile during the recipient’s normal business hours,\nand if not sent during normal business hours, then on the recipient’s next business day; (iii) five (5) days after having\nbeen sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) business day after the\nbusiness day of deposit with a nationally recognized overnight courier, freight prepaid, specifying next day delivery, with\nwritten verification of receipt. If notice is sent to Intel, it shall be sent to Intel Corporation, c/o Intel Capital Corporation,\nAttn: Intel Capital Portfolio Manager, 2200 Mission College Blvd, M/S RN6-59, Santa Clara, CA 95054, with a copy,\nwhich shall not constitute notice, by e-mail to: portfolio.manager@intel.com. If notice is given to Cloudera, it shall be\nsent to 1001 Page Mill Road, Building 2, Palo Alto, CA 94304, Attention: Chief Executive Officer; and a copy (which\nshall not constitute notice) shall also be given to Fenwick & West LLP, 801 California Street, Mountain View,\nCA 94041, Attn: David A. Bell.\ng) Severability. In case any one or more of the provisions contained in this Agreement is for any\nreason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not\naffect any other provision of this Agreement, and such invalid, illegal, or unenforceable provision shall be reformed and\nconstrued so that it will be valid, legal, and enforceable to the maximum extent permitted by law.\n(h) Entire Agreement. This Agreement constitutes the full and entire understanding and agreement\namong the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the\nsubject matter hereof existing between the parties is expressly canceled. For avoidance of doubt, and notwithstanding\nanything to the contrary herein or in any other Transaction Document, information, software, data, analysis and other\nmaterial furnished by or on behalf of Cloudera or its Representatives to Intel or its Representatives under or pursuant to\nthe Commercial Agreement will be subject to the terms and conditions of the MNDA and will not be subject to the terms\nof this Agreement (regardless of whether the same information, software, data, analysis or other material may also have\nbeen furnished under or pursuant to this Agreement or one or more of the Transaction Documents).\n1) Governing Law. This agreement shall be governed in all respects, including without limitation\nvalidity, interpretation and effect, by the laws of the state of Delaware applicable to contracts executed and to be\nperformed wholly within such state without giving effect to the choice of law principles of such state.\nDispute Resolution. Each of the parties hereto agrees to waive any bonding requirement under\nany applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. Furthermore, each of\nthe parties hereto (a) consents to submit itself to the personal jurisdiction of the Delaware Court of Chancery or, to the\nextent that the Delaware Court of Chancery declines to exercise jurisdiction over the matter, other federal or state courts\nof the State of Delaware in the event any dispute arises out of this Agreement or the transactions contemplated by this\nAgreement, (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for\nleave from any such court, (c) agrees that it shall not bring any action relating\nto this Agreement or the transactions contemplated by this Agreement in any court other than the Delaware Court of\nChancery or, to the extent that the Delaware Court of Chancery declines to exercise jurisdiction over the matter, other\nfederal or state courts of the State of Delaware, and (d) each of the parties irrevocably consents to service of process by a\nreputable overnight mail delivery service, signature requested, to the address set forth in Section 10(f) of this Agreement\nor as otherwise provided by applicable law.\nk) Successors and Assigns;_ No Third Party Beneficiaries. The terms and conditions of this\nAgreement inure to the benefit of and are binding upon the respective successors and permitted assignees of the Parties.\nNothing in this Agreement, express or implied, is intended to confer upon either Party other than the parties hereto or\ntheir respective successors and permitted assignees any rights, remedies, obligations or liabilities under or by reason of\nthis Agreement, except as expressly provided herein.\n[Signatures Follow]\n10\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.\nCLOUDERA, INC.\nBy: /s/ Tom Reilly\nTom Reilly\nChief Executive Officer\nINTEL CORPORATION\nBy:\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. 12\nCLOUDERA, INC.\nBy:\nTom Reilly\nChief Executive Officer\nINTEL CORPORATION\nBy: /s/ Cary Klafter\nCary Klafter\nCorporate Secretary	EX-4.04 s-1exhibit404.htm EXHIBIT 4.04\nExhibit 4.04\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the "Agreement") is entered into as of March 21, 2014 (the "Effective Date")\nby and between Intel Corporation ("Intel") and Cloudera, Inc. ("Cloudera," and, together with Intel, each a "Party" or\ntogether the "Parties").\nWHEREAS, Cloudera may provide certain confidential information (i) to Intel as a result of its notice,\ninformation and inspection rights as a shareholder of Cloudera and in connection with negotiating Proposed Transactions\n(as defined below) (as set forth in more detail below) and (ii) to the Intel Designee (as defined below).\nWHEREAS, any confidential information provided to or disclosed by either party pursuant to the terms of the\nCommercial Agreement will be governed by the terms of the MNDA and not this Agreement.\nNOW, THEREFORE, in consideration of the foregoing and the agreements contained herein, the Parties\nintending to be legally bound agree as follows:\n1. Definitions. For the purposes of this Agreement, the following terms have the following meanings:\n(a)\n"Affiliate" of a person shall include any person that, directly or indirectly, controls, is\ncontrolled by or is under common control with such person. The term "control" means the possession of the power,\ndirectly or indirectly, to direct or cause the direction of the management and affairs of a person.\n(b)\n"Board" means the Board of Directors of Cloudera.\n(c)\n"Commercial Agreement" means that certain Collaboration and Optimization Agreement,\nbetween the Parties, dated as of March 21, 2014.\n(d)\n"Confidential Information" shall mean all information, software, data and analysis (including\nwithout limitation information in tangible or intangible form relating to and/or including released or unreleased products\nand services (including without limitation any product or service names, titles, designs, ideas, concepts, scripts\nand\nschedules), the marketing or promotion of any product, business policies or practices, business plans and forecasts,\npotential transactions and business combinations and information received from others that Cloudera is obligated to treat\nas confidential) in each case that is furnished by Cloudera or its Representatives, and provided to (i) the Intel Designee\nby reason of his or her position as a member of the Board (the "Board Confidential Information"), (ii) Intel or its\nRepresentatives in the form of non-public information received pursuant to the Investor Rights Agreement, the Right of\nFirst Refusal and Co-Sale Agreement, or the Voting Agreement, or pursuant to shareholder information or inspection\nrights under applicable law C the "Shareholder Confidential Information") or (iii) to Intel or its Representatives\npursuant\nto\nthe\nStandstill\nAgreement\nin\norder\nto\nenable\nIntel\nto\nevaluate\nCloudera\nand\nenter\ninto\nnegotiations\nand\nexecution of a Proposed Transaction ("Proposed Transaction Information") shall be considered Confidential\nInformation, as well as any analyses, compilations,\nstudies, documents or other material, regardless of the form thereof, prepared by Intel or its Representatives containing\nor based in whole or in part upon such information, software, data or analysis. Confidential Information does not include\ninformation, software, data or analysis that: (A) is when furnished or thereafter becomes publicly available other than as\na\nresult\nof\na\ndisclosure\nby\nIntel\nor\nits\nRepresentatives\nin\nviolation\nof\nthis\nAgreement,\n(B)\nis\nalready\nin\nthe\npossession\nof\nor\nbecomes available to Intel or its Representatives on a non-confidential basis from a source other than Cloudera or its\nRepresentatives, provided that, to Intel's knowledge, such source is not and was not bound by an obligation of\nconfidentiality to Cloudera, its Representatives or any other party with regard to such information,\nsoftware,\ndata\nor\nanalysis, or (C) Intel can demonstrate was independently developed without use of or reference to Confidential\nInformation by it or its Representatives without violation of this Agreement, provided such independent development\ncan\nreasonably\nbe\nproven\nby\nwritten\nrecords\n("Publicly\nAvailable,\nPre-Existing,\nand\nIndependently\nDeveloped\nInformation") Document, "Confidential For avoidance Information" of doubt, for and purposes notwithstanding of this Agreement anything to does the not contrary include herein any information, or in any other software, Transaction data,\nanalysis or other material furnished by or on behalf of Cloudera or its Representatives to Intel or its Representatives\nunder or pursuant to the Commercial Agreement ("Commercial Agreement Confidential Information"), and except as\nset forth below in this Section 1(d), all such information will be subject to the terms and conditions of the MNDA. If any\nto the extent any Confidential Information is Commercial Agreement Confidential Information and is also Shareholder\nConfidential Information, the MNDA will govern the obligations with respect to such information, unless such\ninformation was furnished by Cloudera or its Representatives directly to Intel Capital Corporation or its Representatives\nin which case this Agreement will govern the obligations with respect to such information. If any to the extent any\nConfidential Information is Commercial Agreement Confidential Information and is also Proposed Transaction\nInformation, then (i) to the extent such Confidential Information was furnished to Intel or its Representatives after the\ncommencement of the exchange of information in connection with a Proposed Transaction ("Proposed Transaction\nCommencement"), this Agreement shall govern the obligations with respect to such information, and (ii) to the extent\nsuch information was furnished prior to the Proposed Transaction Commencement, the MNDA will govern the\nobligations with respect to such information.\n(e)\n"Intel Designee" means any Intel employee that serves as a member of the Board and/or any\nmember of the Board that Intel is entitled to elect or designate pursuant to any agreement between Intel and the\nCompany or any of its security holders or otherwise.\n(f)\n"Investor Rights Agreement" means the amended and restated agreement among the Company,\nthe Purchasers and certain other stockholders of the Company, to be dated as of or on or about the date hereof.\n(g)\n"MNDA" means the Mutual Non-Disclosure Agreement between Intel and Cloudera, dated as\nof January 29, 2014.\n(h)\n"Permitted Tender Offer" shall have the meaning given to such term in the Standstill\nAgreement.\n2\n(i)\n"Proposed Transaction" means a transaction in connection with (A) Negotiated Transaction\nDiscussions (as defined in the Standstill Agreement), or (B) a potential Sale or Acquisition (as defined in the Standstill\nAgreement) of Cloudera or its assets by or to Intel (or its affiliates) following a Competing Transaction (as defined in the\nStandstill Agreement).\n(j)\n"Representatives" of a person shall include such person's directors, officers, employees, legal\ncounsel, accountants, and financial and other advisors, provided that such Representatives who are not employed by the\nreceiving party owe a duty of confidentiality to the receiving party.\n(k)\n"Right of First Refusal and Co-Sale Agreement" means the amended and restated agreement\namong the Company, the Purchasers, and certain other stockholders of the Company, to be dated as of or on or about the\ndate hereof\n(1)\n"Sensitive Confidential Information" means any of the following subcategories of Confidentia\nInformation that is furnished by Cloudera or its Representatives and received by the Intel Designee in connection with\nhis or her capacity as a member of the Board: (a) non-public information about Cloudera's financial condition,\nprojections, forecasts, prospects or plans; (b) non-public information regarding Cloudera's marketing and sales\nprograms, research and development, new product launches or initiatives, or leadership succession plans for Cloudera's\nsenior officers; (c) non-public information relating to possible business transactions such as mergers, acquisitions,\ndivestitures or joint ventures, or possible capital transactions such as an initial public offering or follow-on public\noffering, credit facilities, share repurchases, dividends or stock splits; (d) non-public information concerning other\ncompanies with whom Cloudera may conduct business, including information about Cloudera's customers, suppliers,\njoint venture partners, or other companies with which the Company is under an obligation of confidentiality; and\n(e) non-public information about meetings, presentations and discussions relating to issues, proceedings, discussions,\ndeliberations and decisions between and among employees, officers and directors and their advisers, including the\nidentity, circumstances and fact of retention of any such advisers (including Board, committee and executive dynamics\nand relationships); provided, however, that Sensitive Confidential Information does not include Publicly Available, Pre-\nExisting, and Independently Developed Information\n(m)\n"Standstill Agreement" means that certain Right of First Notice and Standstill Agreement,\nbetween Cloudera and Intel, of even date herewith.\n(n)\n"Voting Agreement" means the amended and restated agreement among the Company, the\nPurchasers and certain other stockholders of the Company, to be dated as of or on or about the date hereof.\n2. Confidentiality..\n(a)\nIntel shall, and shall cause the Intel Designee to, (a) keep strictly confidential and take reasonable\nprecautions, at least as great as the precautions Intel takes to its own confidential information, to protect against and\nprevent the disclosure of all Board Confidential Information to third parties, and (b) not use the Board Confidential\nInformation other than in furtherance of a\n3\nBusiness Purpose (as defined below) (other than in connection with a Permitted Tender Offer); provided, however, that\nthe Intel Designee may discuss Confidential Information, other than Sensitive Confidential Information, as provided\nin\nSection 2(f) below, in all cases in compliance with his or her fiduciary duties to Cloudera.\n(b) Intel shall, and shall cause its Representatives to, (a) keep strictly confidential and take reasonable\nprecautions, at least as great as the precautions Intel takes to its own confidential information, to protect against and\nprevent the disclosure of all Shareholder Confidential Information to third parties; (b) not use the Shareholder\nConfidential Information for any purposes other as permitted under the Transaction Agreements (as such term is defined\nin the Series F-1 Stock Purchase Agreement dated March 21, 2014 (the "Stock Purchase Agreement")); and (c) not\nmake any public announcement in relation to, or public comment on the fact that any Confidential Information has been\nmade\navailable\nto\nIntel,\nits\nAffiliates\nor\nRepresentatives,\nwithout\nCloudera's\nprior\nwritten\nconsent\n(unless\notherwise\npermitted by Sections 4(b) or 4(c) below); provided, however, that Intel and its Representatives may disclose\nConfidential Information and facts, terms and conditions to those of its Representatives who need to know such\ninformation for the sole purpose of furthering a Business Purpose (as defined below) (other than in connection with a\nPermitted Tender Offer) if, and only if, prior to being given access to such Shareholder Confidential Information or\nbeing told such matters, such Representative is informed of the confidentiality thereof and is bound by a confidentiality\nobligation with Intel with respect to such Confidential Information.\n(c) Notwithstanding the foregoing, nothing contained in this Agreement will restrict the free movement,\nor assignment to different tasks and activities, of any employees or other permitted disclosees of Intel throughout his or\nher organization.\n(d) Nothing in this Agreement will prevent Intel or its Representatives or permitted disclosees from\nindependently developing, without use of Confidential Information, competing products or technologies, and from using,\nselling or otherwise supplying to third parties these products or technologies. Further, Intel and its permitted disclosees\nmay\nuse\nResiduals\n(as\ndefined\nbelow)\nfor\nany\npurpose,\nincluding,\nwithout\nlimitation,\nin\nthe\ndevelopment,\nmanufacture,\nsales, promotion, maintenance of the products of Intel; provided that this right to use Residuals does not result in or\namount to a license to Intel or its permitted disclosees under any patents, copyrights, mask works, trademarks or similar\nrights or, except as set forth in the definition of Residuals, any of Cloudera' trade secrets, know-how or other intellectual\nproperty rights with respect to any Confidential Information, either expressly, by implication, inducement, estoppel or\notherwise, absent a written agreement between Intel and Cloudera. The term "Residuals" means any information\nretained in the unaided memories of the employees or other permitted disclosees of the Intel or its Representatives who\nhave had access to the Confidential Information. The memory of the employees or other permitted disclosees of Intel is\nunaided if he or she did not intentionally memorize or otherwise mentally retain for reference the information for the\npurpose of retaining it and later using it or disclosing it to a third party and such employee does not know at the time of\nsuch later use that such information is the confidential information of Cloudera. Subject to the terms and conditions of\nthis Agreement, the employees and other permitted disclosees of Intel will not be restricted from using the Residuals as a\npart of his or her skill, knowledge, talent or expertise on any project.\n4\n(e)\nIntel shall notify Cloudera promptly upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Intel and Intel's Representatives, and will cooperate\nwith Cloudera in every reasonable way to help Cloudera regain possession of the Confidential Information and prevent\nits further unauthorized use or disclosure.\n(f) Intel shall not seek to obtain Confidential Information from an Intel Designee that the Intel Designee\nreceives from Cloudera or its Representatives in his or her capacity as a member of the Board. Notwithstanding the\nforegoing, the Intel Designee may discuss Confidential Information, other than Sensitive Confidential Information, with\nIntel's Representatives who need to know such Confidential Information (i) to monitor Intel's relationship with and\ninvestment in the Company, (ii) in furtherance of the Commercial Agreement, or (iii) to evaluate and enter into\nnegotiations\nand\nexecution\nof\na\ntransaction\nin\nconnection\nwith\n(A)\nNegotiated\nTransaction\nDiscussions\n(as\nsuch\nterm\nis\ndefined in the Standstill Agreement), (B) a potential Sale or Acquisition (as defined in the Standstill Agreement)\nof\nCloudera by Intel or any affiliate at a time when Intel's obligations under the Standstill Agreement do not apply, (C) a\nPermitted Tender Offer or (D) as required for securities law purposes (each, a "Business Purpose"); provided that, to\nthe extent Intel or its Affiliates or Representatives receive Sensitive Confidential Information despite the first sentence of\nthis Section 2(f), Intel or its Affiliates or Representatives shall not use (or disclose) such information for any purpose.\n(g) Intel shall, and shall cause its Representatives to, (a) keep strictly confidential and take reasonable\nprecautions, at least as great as the precautions Intel takes to its own confidential information, to protect against and\nprevent the disclosure to third parties of (i) all Proposed Transaction Information, (ii) the fact that such Party is\nevaluating or has evaluated or considered a Proposed Transaction, (iii) the fact that discussions or negotiations are taking\nplace or have taken place relating to a Proposed Transaction, (iv) the substance of any discussions or negotiations that\ntake place regarding a Proposed Transaction, and (v) all of the terms, conditions or other facts relating to a Proposed\nTransaction; and; (b) not use the Proposed Transaction Information for any purposes other than enabling Intel to evaluate\nCloudera and enter into negotiations and execution of a Proposed Transaction (other than a Permitted Tender Offer;\nprovided, however, that Intel and its Representatives may disclose information, facts, terms and conditions identified in\nsubsections (i) through (v) above to those of its Representatives who need to know such information for the purpose of\nenabling Intel to evaluate Cloudera and enter into negotiations and execution of a Proposed Transaction (other than a\nPermitted Tender Offer.\nNotwithstanding the foregoing, in connection with a Permitted Tender Offer, Intel may use such\nConfidential Information (other than Sensitive Confidential Information). In addition, notwithstanding the foregoing, in\nconnection with a Permitted Tender Offer, Intel may disclose such Confidential Information (other than Sensitive\nConfidential Information) as Intel believes is required to conduct a tender offer under United States federal securities\nlaws.\n3. No Warranties.\nCloudera makes no express or implied representation or warranty as to the accuracy or completeness of any of\nthe information furnished to Intel or its Representatives pursuant hereto. Neither Cloudera nor any of its Representatives\nshall have any liability to Intel or its Representatives\n5\nrelating to or arising from the use of or reliance upon any information or any errors or omissions therein.\n4. Legal Requirements\n(a) If Intel or its Representative becomes subject to a legal requirement (by subpoena, oral deposition,\ninterrogatories, request for production of documents, civil investigative demand, administrative order or otherwise) to\ndisclose any Confidential Information or any other matter required by Section 2 to be kept confidential, Intel (i) will\npromptly notify Cloudera of the existence, terms and circumstances of such requirement so that Cloudera may seek an\nappropriate protective order or waive compliance with the terms of this Agreement, and (ii) will, and will cause its\nRepresentatives to, use commercially reasonable efforts to cooperate with Cloudera in seeking a protective order or other\nassurance that confidential treatment will be accorded to the Confidential Information or other matter.\n(b) If Intel or its Representative having complied with Section 4(a) is compelled to make disclosure in\nresponse to a requirement described in Section 4(a), such person may make such disclosure without liability hereunder\nnotwithstanding the absence of a protective order or waiver of compliance hereunder; provided that (i) Intel and/or its\nRepresentative only disclose that portion of Cloudera's Confidential Information or other matter required by Section 2 to\nbe kept confidential which Intel's counsel advises is legally required to be disclosed, and (ii) Intel and/or its\nRepresentative exercises its commercially reasonable efforts to preserve the confidentiality of the remainder of\nCloudera's other Confidential Information.\n(c)\nIf Intel is advised by its legal counsel that disclosure of Cloudera's Confidential Information or a\nmatter required by Section 2 to be kept confidential is required by applicable law, rule or regulation, including the rules\nor regulations of a national securities exchange or other exchange on which Intel's securities are listed for trading and in\nits filings with the Securities Exchange Commission as is required under applicable federal securities laws, Intel shall\ngive notice thereof to Cloudera as promptly as practicable under the circumstances and shall disclose only such matters\nas\nits\nlegal\ncounsel\nadvises\nis\nrequired\nby\nsuch\nlaw,\nrule\nor\nregulation,\nprovided\nthat\nIntel\nexercises\nits\ncommercially\nreasonable efforts to preserve the confidentiality of Cloudera's Confidential Information, including, without limitation,\nby cooperating with Cloudera to obtain an appropriate protective order or other assurance that confidential treatment will\nbe accorded Cloudera's Confidential Information by any third party to which disclosure is made. If Intel complies with\nthe preceding sentence, it may make such disclosure without liability hereunder notwithstanding the absence of a\nprotective order or waiver of compliance hereunder.\n5. Destruction upon Termination of Information Rights. All Confidential Information shall be and remain the\nproperty of Cloudera. All Confidential Information, whether in hard copy form or intangible media such as electronic\nmail or computer files, shall be returned to Cloudera or destroyed and no copies shall be retained by Intel or its\nRepresentatives:\n(a)\nwith\nrespect\nto\nall\nConfidential\nInformation,\nimmediately\nupon\nCloudera's\nrequest\nfollowing:\n(i)\na\nCompetitor Investment (as such term is defined in the Investor Rights Agreement); (ii) after Intel no longer holds at least\n13% of the securities in Cloudera (as adjusted for stock splits, reverse stock splits and the like) (as defined therein) on\nthe Closing Date (as defined therein); provided, further, that\n6\nin the case of both (i) and (ii), Intel and its Representatives in its or their accounting and financial reporting function\nshall be entitled to retain Confidential Information that is necessary for reporting purposes, including Intel's unaudited\nquarterly financial reporting and Intel financial statement reporting in accordance with GAAP and for audit purposes,\nwhether internal audits or with respect to Intel's independent public accountants, so long as such retained Confidential\nInformation is used only for the purpose described in this proviso; and (b) with respect to all Proposed Transaction\nInformation,\nimmediately\nupon\nCloudera's\nrequest,\nwhich\nrequest\nshall\nnot\nbe\nmade\nduring\nthe\nWaiting\nPeriod\n(as\ndefined in the Standstill Agreement), unless Intel has notified Cloudera that it has determined that it does not desire or\nintend to continue Negotiated Transaction Discussions or a potential Sale or Acquisition of Cloudera by Intel; provided,\nhowever, that, notwithstanding the foregoing, any portion of the Confidential Information that consists of reports,\nanalyses, compilations, data, studies or other documents developed or prepared by or for Intel or its Representatives that\ninclude, incorporate, refer to, reflect or are based in whole or in part on any Confidential Information will be destroyed\nimmediately upon such request; provided further that any such destruction of such information shall be certified in\nwriting to Cloudera. Notwithstanding the return or destruction of the Confidential Information, Intel and its\nRepresentatives will continue to be bound by its obligations of confidentiality, non-use and other obligations hereunder.\n6. Intel Representatives. Intel will be responsible for any breach of this Agreement by the Intel Designee with\nrespect to the Board Confidential Information or by its Representatives with respect to any Confidential Information, and\nagrees, at its sole expense, to take reasonable measures, at such time as it becomes aware of an imminent breach of the\nconfidentiality restrictions by one of its Representatives, to restrain such Representative from prohibited or unauthorized\ndisclosure or use of such Confidential Information.\n7. Compliance with Insider Trading. and Public Disclosure Laws. Intel acknowledges that Intel may become\naware of material, nonpublic information concerning Cloudera. Intel acknowledges that the United States securities laws\nprohibit any person who has material, nonpublic information concerning a company whose securities are publicly traded\nfrom purchasing or selling securities of that company or disclosing such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nAccordingly, for so long as Intel holds material, nonpublic information concerning Cloudera, Intel agrees to take\nreasonable precautions to prevent any trading in the securities of Cloudera, including by Intel's Affiliates and\nRepresentatives, while in possession of material, nonpublic information.\n8.\nDisclaimer of Corporation Opportunity. Cloudera acknowledges that Intel may have, from time to time,\ninformation that may be of interest to the Cloudera ("Intel Information") including, by way of example only, (a) Intel's\ntechnologies, plans and services, (b) current and future investments Intel has made, may make, may consider or may\nbecome aware of with respect to other companies and other technologies, products and services, including, without\nlimitation, technologies, products and services that may be competitive with those of Cloudera, and (c) developments\nwith respect to the technologies, products and services, and plans and strategies relating thereto, of other companies,\nincluding, without limitation, companies that may be competitive with Cloudera; provided, that for the avoidance of\ndoubt Intel Information shall not include any Confidential Information provided by Cloudera to Intel or its\nRepresentatives hereunder\n7\nor that the Intel Designee receives in his or her capacity as a member of the Board. Cloudera, as a material part of the\nconsideration for this Agreement and the transactions contemplated by the Transaction Agreements (as defined in the\nStock Purchase Agreement), agrees that Intel and the Intel Designee shall have no duty to disclose any Intel Information\nto Cloudera or permit Cloudera to participate in any projects or investments based on any Intel Information, or\nto\notherwise take advantage of any opportunity that may be of interest to Cloudera if it were aware of such Intel\nInformation,\nand\nhereby\nwaives,\nto\nthe\nextent\npermitted\nby\nlaw,\nany\nclaim\nbased\non\nthe\ncorporate\nopportunity\ndoctrine\nor\notherwise that could limit Intel's ability to pursue opportunities based on such Intel Information or that would require\nIntel or the Intel Designee to disclose any such Information to Cloudera or offer any opportunity relating thereto to\nCloudera.\n10. Miscellaneous.\n(a)\nPower and Authority.. Each Party hereby represents that it has the power and authority\n(corporate power and corporate authority, if applicable) to execute and deliver this Agreement and that this Agreement\nconstitutes a valid and binding agreement of such Party, enforceable in accordance with its terms.\n(b)\nCosts and Expenses; Remedies. Each of the Parties will bear its own costs and expenses,\nincluding legal fees and fees of other advisors, with respect to any action to enforce its rights under this Agreement by\nlegal proceedings. It is understood and agreed that money damages would not be a sufficient remedy for any breach of\nthis Agreement and that the non-breaching Party shall be entitled to injunctive relief. Such remedy shall not be deemed\nto be the exclusive remedy for the breach of this Agreement but shall be in addition to all other remedies available at law\nor in equity.\n(c) Delays or Omissions; Modification. No delay or omission to exercise any right, power, or\nremedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement,\nnor any partial exercise thereof, shall impair any such right, power, or remedy of such nonbreaching or nondefaulting\nparty, nor shall it be construed to be a waiver of or acquiescence to any such breach or default, or to any similar breach\nor default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other\nbreach or default theretofore or thereafter occurring. All remedies, whether under this Agreement or by law or otherwise\nafforded to any party, shall be cumulative and not alternative. No modification of this Agreement, termination or waiver\nof\nthe\nterms\nand\nconditions hereof shall be binding upon either Party hereto, unless approved in writing by each\nsuch\nparty.\n(d) Counterparts; Facsimile. This Agreement may be executed in two or more counterparts, each of\nwhich shall be deemed an original, but all of which together shall constitute one and the same instrument. This\nAgreement may also be executed and delivered by facsimile signature and in two or more counterparts, each of which\nshall be deemed an original, but all of which together shall constitute one and the same instrument\n(e)\nTitles and Subtitles. The titles and subtitles used in this Agreement are for convenience only\nand are not to be considered in construing or interpreting this Agreement\n8\n(f) Notices. All notices and other communications given or made pursuant to this Agreement shall\nbe in writing and shall be deemed effectively delivered upon the earlier of actual receipt or: (i) personal delivery to the\nparty to be notified; (ii) when sent, if sent by electronic mail or facsimile during the recipient's normal business hours,\nand if not sent during normal business hours, then on the recipient's next business day; (iii) five (5) days\nafter\nhaving\nbeen sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) business day after the\nbusiness day of deposit with a nationally recognized overnight courier, freight prepaid, specifying next day delivery, with\nwritten\nverification\nof\nreceipt.\nIf\nnotice\nis\nsent\nto\nIntel,\nit\nshall\nbe\nsent\nto\nIntel\nCorporation,\nc/o\nIntel\nCapital\nCorporation,\nAttn: Intel Capital Portfolio Manager, 2200 Mission College Blvd, M/S RN6-59, Santa Clara, CA 95054, with a copy,\nwhich shall not constitute notice, by e-mail to: portfolio.manager@intel.com If notice is given to Cloudera, it shall be\nsent\nto\n1001\nPage\nMill\nRoad,\nBuilding\n2,\nPalo\nAlto,\nCA\n94304,\nAttention:\nChief\nExecutive\nOfficer;\nand\na\ncopy\n(which\nshall not constitute notice) shall also be given to Fenwick & West LLP, 801 California Street, Mountain View,\nCA 94041, Attn: David A. Bell.\n(g)\nSeverability.. In case any one or more of the provisions contained in this Agreement is for any\nreason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not\naffect any other provision of this Agreement, and such invalid, illegal, or unenforceable provision shall be reformed and\nconstrued so that it will be valid, legal, and enforceable to the maximum extent permitted by law.\n(h)\nEntire Agreement. This Agreement constitutes the full and entire understanding and agreement\namong the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the\nsubject matter hereof existing between the parties is expressly canceled. For avoidance of doubt, and notwithstanding\nanything to the contrary herein or in any other Transaction Document, information, software, data, analysis and other\nmaterial furnished by or on behalf of Cloudera or its Representatives to Intel or its Representatives under or pursuant to\nthe Commercial Agreement will be subject to the terms and conditions of the MNDA and will not be subject to the terms\nof this Agreement (regardless of whether the same information, software, data, analysis or other material may also have\nbeen furnished under or pursuant to this Agreement or one or more of the Transaction Documents).\n(i)\nGoverning Law. This agreement shall be governed in all respects, including without limitation\nvalidity, interpretation and effect, by the laws of the state of Delaware applicable to contracts executed and to be\nperformed wholly within such state without giving effect to the choice of law principles of such state.\n(j)\nDispute Resolution. Each of the parties hereto agrees to waive any bonding requirement under\nany applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. Furthermore, each of\nthe parties hereto (a) consents to submit itself to the personal jurisdiction of the Delaware Court of Chancery or, to the\nextent that the Delaware Court of Chancery declines to exercise jurisdiction over the matter, other federal or state courts\nof\nthe\nState\nof\nDelaware\nin\nthe\nevent\nany\ndispute\narises\nout\nof\nthis\nAgreement\nor\nthe\ntransactions\ncontemplated\nby\nthis\nAgreement, (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for\nleave from any such court, (c) agrees that it shall not bring any action relating\n9\nto this Agreement or the transactions contemplated by this Agreement in any court other than the Delaware Court of\nChancery or, to the extent that the Delaware Court of Chancery declines to exercise jurisdiction over the matter, other\nfederal or state courts of the State of Delaware, and (d) each of the parties irrevocably consents to service of process by\na\nreputable overnight mail delivery service, signature requested, to the address set forth in Section 10(f) of this Agreement\nor as otherwise provided by applicable law.\n(k)\nSuccessors and Assigns;_ No Third PartyBeneficiaries The terms and conditions of this\nAgreement inure to the benefit of and are binding upon the respective successors and permitted assignees of the Parties.\nNothing in this Agreement, express or implied, is intended to confer upon either Party other than the parties hereto or\ntheir respective successors and permitted assignees any rights, remedies, obligations or liabilities under or by reason of\nthis Agreement, except as expressly provided herein.\n[Signatures Follow]\n10\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.\nCLOUDERA, INC.\nBy:\n/s/ Tom Reilly\nTom Reilly\nChief Executive Officer\nINTEL CORPORATION\nBy:\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.\nCLOUDERA, INC.\nBy:\nTom Reilly\nChief Executive Officer\nINTEL CORPORATION\nBy:\n/s/ Cary Klafter\nCary Klafter\nCorporate Secretary\n12	EX-4 .04 5 s-1exhibit404.htm EXHIBIT 4.04\nExhibit 4.04\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is entered into as of March 21, 2014 (the “Effective Date”)\nby and between Intel Corporation (“Intel”) and Cloudera, Inc. (“Cloudera,” and, together with Intel, each a “Party” or\ntogether the “Parties”).\nWHEREAS, Cloudera may provide certain confidential information (i) to Intel as a result of its notice,\ninformation and inspection rights as a shareholder of Cloudera and in connection with negotiating Proposed Transactions\n(as defined below) (as set forth in more detail below) and (ii) to the Intel Designee (as defined below).\nWHEREAS, any confidential information provided to or disclosed by either party pursuant to the terms of the\nCommercial Agreement will be governed by the terms of the MNDA and not this Agreement.\nNOW, THEREFORE, in consideration of the foregoing and the agreements contained herein, the Parties\nintending to be legally bound agree as follows:\n1. Definitions. For the purposes of this Agreement, the following terms have the following meanings:\n(a)\n“Affiliate” of a person shall include any person that, directly or indirectly, controls, is\ncontrolled by or is under common control with such person. The term “control” means the possession of the power,\ndirectly or indirectly, to direct or cause the direction of the management and affairs of a person.\n(b)\n“Board” means the Board of Directors of Cloudera.\n(c)\n“Commercial Agreement” means that certain Collaboration and Optimization Agreement,\nbetween the Parties, dated as of March 21, 2014.\n(d)\n“Confidential Information” shall mean all information, software, data and analysis (including\nwithout limitation information in tangible or intangible form relating to and/or including released or unreleased products\nand services (including without limitation any product or service names, titles, designs, ideas, concepts, scripts and\nschedules), the marketing or promotion of any product, business policies or practices, business plans and forecasts,\npotential transactions and business combinations and information received from others that Cloudera is obligated to treat\nas confidential) in each case that is furnished by Cloudera or its Representatives, and provided to (i) the Intel Designee\nby reason of his or her position as a member of the Board (the “Board Confidential Information”), (ii) Intel or its\nRepresentatives in the form of non‐public information received pursuant to the Investor Rights Agreement, the Right of\nFirst Refusal and Co‐Sale Agreement, or the Voting Agreement, or pursuant to shareholder information or inspection\nrights under applicable law ( the “Shareholder Confidential Information”), or (iii) to Intel or its Representatives\npursuant to the Standstill Agreement in order to enable Intel to evaluate Cloudera and enter into negotiations and\nexecution of a Proposed Transaction (“Proposed Transaction Information”) shall be considered Confidential\nInformation, as well as any analyses, compilations,\nstudies, documents or other material, regardless of the form thereof, prepared by Intel or its Representatives containing\nor based in whole or in part upon such information, software, data or analysis. Confidential Information does not include\ninformation, software, data or analysis that: (A) is when furnished or thereafter becomes publicly available other than as\na result of a disclosure by Intel or its Representatives in violation of this Agreement, (B) is already in the possession of\nor becomes available to Intel or its Representatives on a non‐confidential basis from a source other than Cloudera or its\nRepresentatives, provided that, to Intel’s knowledge, such source is not and was not bound by an obligation of\nconfidentiality to Cloudera, its Representatives or any other party with regard to such information, software, data or\nanalysis, or (C) Intel can demonstrate was independently developed without use of or reference to Confidential\nInformation by it or its Representatives without violation of this Agreement, provided such independent development\ncan reasonably be proven by written records (“Publicly Available, Pre-Existing, and Independently Developed\nInformation”). For avoidance of doubt, and notwithstanding anything to the contrary herein or in any other Transaction\nDocument, “Confidential Information” for purposes of this Agreement does not include any information, software, data,\nanalysis or other material furnished by or on behalf of Cloudera or its Representatives to Intel or its Representatives\nunder or pursuant to the Commercial Agreement (“Commercial Agreement Confidential Information”), and except as\nset forth below in this Section 1(d), all such information will be subject to the terms and conditions of the MNDA. If any\nto the extent any Confidential Information is Commercial Agreement Confidential Information and is also Shareholder\nConfidential Information, the MNDA will govern the obligations with respect to such information, unless such\ninformation was furnished by Cloudera or its Representatives directly to Intel Capital Corporation or its Representatives,\nin which case this Agreement will govern the obligations with respect to such information. If any to the extent any\nConfidential Information is Commercial Agreement Confidential Information and is also Proposed Transaction\nInformation, then (i) to the extent such Confidential Information was furnished to Intel or its Representatives after the\ncommencement of the exchange of information in connection with a Proposed Transaction (“Proposed Transaction\nCommencement”), this Agreement shall govern the obligations with respect to such information, and (ii) to the extent\nsuch information was furnished prior to the Proposed Transaction Commencement, the MNDA will govern the\nobligations with respect to such information.\n(e)\n“Intel Designee” means any Intel employee that serves as a member of the Board and/or any\nmember of the Board that Intel is entitled to elect or designate pursuant to any agreement between Intel and the\nCompany or any of its security holders or otherwise.\n(f)\n“Investor Rights Agreement” means the amended and restated agreement among the Company,\nthe Purchasers and certain other stockholders of the Company, to be dated as of or on or about the date hereof.\n(g)\n“MNDA” means the Mutual Non-Disclosure Agreement between Intel and Cloudera, dated as\nof January 29, 2014.\n(h)\n“Permitted Tender Offer” shall have the meaning given to such term in the Standstill\nAgreement.\n2\n(i)\n“Proposed Transaction” means a transaction in connection with (A) Negotiated Transaction\nDiscussions (as defined in the Standstill Agreement), or (B) a potential Sale or Acquisition (as defined in the Standstill\nAgreement) of Cloudera or its assets by or to Intel (or its affiliates) following a Competing Transaction (as defined in the\nStandstill Agreement).\n(j)\n“Representatives” of a person shall include such person’s directors, officers, employees, legal\ncounsel, accountants, and financial and other advisors, provided that such Representatives who are not employed by the\nreceiving party owe a duty of confidentiality to the receiving party.\n(k)\n“Right of First Refusal and Co‐Sale Agreement” means the amended and restated agreement\namong the Company, the Purchasers, and certain other stockholders of the Company, to be dated as of or on or about the\ndate hereof\n(l)\n“Sensitive Confidential Information” means any of the following subcategories of Confidential\nInformation that is furnished by Cloudera or its Representatives and received by the Intel Designee in connection with\nhis or her capacity as a member of the Board: (a) non‐public information about Cloudera’s financial condition,\nprojections, forecasts, prospects or plans; (b) non‐public information regarding Cloudera’s marketing and sales\nprograms, research and development, new product launches or initiatives, or leadership succession plans for Cloudera’s\nsenior officers; (c) non‐public information relating to possible business transactions such as mergers, acquisitions,\ndivestitures or joint ventures, or possible capital transactions such as an initial public offering or follow‐on public\noffering, credit facilities, share repurchases, dividends or stock splits; (d) non‐public information concerning other\ncompanies with whom Cloudera may conduct business, including information about Cloudera’s customers, suppliers,\njoint venture partners, or other companies with which the Company is under an obligation of confidentiality; and\n(e) non-public information about meetings, presentations and discussions relating to issues, proceedings, discussions,\ndeliberations and decisions between and among employees, officers and directors and their advisers, including the\nidentity, circumstances and fact of retention of any such advisers (including Board, committee and executive dynamics\nand relationships); provided, however, that Sensitive Confidential Information does not include Publicly Available, Pre-\nExisting, and Independently Developed Information\n(m)\n“Standstill Agreement” means that certain Right of First Notice and Standstill Agreement,\nbetween Cloudera and Intel, of even date herewith.\n(n)\n“Voting Agreement” means the amended and restated agreement among the Company, the\nPurchasers and certain other stockholders of the Company, to be dated as of or on or about the date hereof.\n2. Confidentiality.\n(a) Intel shall, and shall cause the Intel Designee to, (a) keep strictly confidential and take reasonable\nprecautions, at least as great as the precautions Intel takes to its own confidential information, to protect against and\nprevent the disclosure of all Board Confidential Information to third parties, and (b) not use the Board Confidential\nInformation other than in furtherance of a\n3\nBusiness Purpose (as defined below) (other than in connection with a Permitted Tender Offer); provided, however, that\nthe Intel Designee may discuss Confidential Information, other than Sensitive Confidential Information, as provided in\nSection 2(f) below, in all cases in compliance with his or her fiduciary duties to Cloudera.\n(b) Intel shall, and shall cause its Representatives to, (a) keep strictly confidential and take reasonable\nprecautions, at least as great as the precautions Intel takes to its own confidential information, to protect against and\nprevent the disclosure of all Shareholder Confidential Information to third parties; (b) not use the Shareholder\nConfidential Information for any purposes other as permitted under the Transaction Agreements (as such term is defined\nin the Series F-1 Stock Purchase Agreement dated March 21, 2014 (the “Stock Purchase Agreement”)); and (c) not\nmake any public announcement in relation to, or public comment on the fact that any Confidential Information has been\nmade available to Intel, its Affiliates or Representatives, without Cloudera’s prior written consent (unless otherwise\npermitted by Sections 4(b) or 4(c) below); provided, however, that Intel and its Representatives may disclose\nConfidential Information and facts, terms and conditions to those of its Representatives who need to know such\ninformation for the sole purpose of furthering a Business Purpose (as defined below) (other than in connection with a\nPermitted Tender Offer) if, and only if, prior to being given access to such Shareholder Confidential Information or\nbeing told such matters, such Representative is informed of the confidentiality thereof and is bound by a confidentiality\nobligation with Intel with respect to such Confidential Information.\n(c) Notwithstanding the foregoing, nothing contained in this Agreement will restrict the free movement,\nor assignment to different tasks and activities, of any employees or other permitted disclosees of Intel throughout his or\nher organization.\n(d) Nothing in this Agreement will prevent Intel or its Representatives or permitted disclosees from\nindependently developing, without use of Confidential Information, competing products or technologies, and from using,\nselling or otherwise supplying to third parties these products or technologies. Further, Intel and its permitted disclosees\nmay use Residuals (as defined below) for any purpose, including, without limitation, in the development, manufacture,\nsales, promotion, maintenance of the products of Intel; provided that this right to use Residuals does not result in or\namount to a license to Intel or its permitted disclosees under any patents, copyrights, mask works, trademarks or similar\nrights or, except as set forth in the definition of Residuals, any of Cloudera’ trade secrets, know‐how or other intellectual\nproperty rights with respect to any Confidential Information, either expressly, by implication, inducement, estoppel or\notherwise, absent a written agreement between Intel and Cloudera. The term “Residuals” means any information\nretained in the unaided memories of the employees or other permitted disclosees of the Intel or its Representatives who\nhave had access to the Confidential Information. The memory of the employees or other permitted disclosees of Intel is\nunaided if he or she did not intentionally memorize or otherwise mentally retain for reference the information for the\npurpose of retaining it and later using it or disclosing it to a third party and such employee does not know at the time of\nsuch later use that such information is the confidential information of Cloudera. Subject to the terms and conditions of\nthis Agreement, the employees and other permitted disclosees of Intel will not be restricted from using the Residuals as a\npart of his or her skill, knowledge, talent or expertise on any project.\n4\n(e) Intel shall notify Cloudera promptly upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Intel and Intel’s Representatives, and will cooperate\nwith Cloudera in every reasonable way to help Cloudera regain possession of the Confidential Information and prevent\nits further unauthorized use or disclosure.\n(f) Intel shall not seek to obtain Confidential Information from an Intel Designee that the Intel Designee\nreceives from Cloudera or its Representatives in his or her capacity as a member of the Board. Notwithstanding the\nforegoing, the Intel Designee may discuss Confidential Information, other than Sensitive Confidential Information, with\nIntel’s Representatives who need to know such Confidential Information (i) to monitor Intel’s relationship with and\ninvestment in the Company, (ii) in furtherance of the Commercial Agreement, or (iii) to evaluate and enter into\nnegotiations and execution of a transaction in connection with (A) Negotiated Transaction Discussions (as such term is\ndefined in the Standstill Agreement), (B) a potential Sale or Acquisition (as defined in the Standstill Agreement) of\nCloudera by Intel or any affiliate at a time when Intel’s obligations under the Standstill Agreement do not apply, (C) a\nPermitted Tender Offer , or (D) as required for securities law purposes (each, a “Business Purpose”); provided that, to\nthe extent Intel or its Affiliates or Representatives receive Sensitive Confidential Information despite the first sentence of\nthis Section 2(f), Intel or its Affiliates or Representatives shall not use (or disclose) such information for any purpose.\n(g) Intel shall, and shall cause its Representatives to, (a) keep strictly confidential and take reasonable\nprecautions, at least as great as the precautions Intel takes to its own confidential information, to protect against and\nprevent the disclosure to third parties of (i) all Proposed Transaction Information, (ii) the fact that such Party is\nevaluating or has evaluated or considered a Proposed Transaction, (iii) the fact that discussions or negotiations are taking\nplace or have taken place relating to a Proposed Transaction, (iv) the substance of any discussions or negotiations that\ntake place regarding a Proposed Transaction, and (v) all of the terms, conditions or other facts relating to a Proposed\nTransaction; and; (b) not use the Proposed Transaction Information for any purposes other than enabling Intel to evaluate\nCloudera and enter into negotiations and execution of a Proposed Transaction (other than a Permitted Tender Offer;\nprovided, however, that Intel and its Representatives may disclose information, facts, terms and conditions identified in\nsubsections (i) through (v) above to those of its Representatives who need to know such information for the purpose of\nenabling Intel to evaluate Cloudera and enter into negotiations and execution of a Proposed Transaction (other than a\nPermitted Tender Offer.\nNotwithstanding the foregoing, in connection with a Permitted Tender Offer, Intel may use such\nConfidential Information (other than Sensitive Confidential Information). In addition, notwithstanding the foregoing, in\nconnection with a Permitted Tender Offer, Intel may disclose such Confidential Information (other than Sensitive\nConfidential Information) as Intel believes is required to conduct a tender offer under United States federal securities\nlaws.\n3. No Warranties.\nCloudera makes no express or implied representation or warranty as to the accuracy or completeness of any of\nthe information furnished to Intel or its Representatives pursuant hereto. Neither Cloudera nor any of its Representatives\nshall have any liability to Intel or its Representatives\n5\nrelating to or arising from the use of or reliance upon any information or any errors or omissions therein.\n4. Legal Requirements.\n(a) If Intel or its Representative becomes subject to a legal requirement (by subpoena, oral deposition,\ninterrogatories, request for production of documents, civil investigative demand, administrative order or otherwise) to\ndisclose any Confidential Information or any other matter required by Section 2 to be kept confidential, Intel (i) will\npromptly notify Cloudera of the existence, terms and circumstances of such requirement so that Cloudera may seek an\nappropriate protective order or waive compliance with the terms of this Agreement, and (ii) will, and will cause its\nRepresentatives to, use commercially reasonable efforts to cooperate with Cloudera in seeking a protective order or other\nassurance that confidential treatment will be accorded to the Confidential Information or other matter.\n(b) If Intel or its Representative having complied with Section 4(a) is compelled to make disclosure in\nresponse to a requirement described in Section 4(a), such person may make such disclosure without liability hereunder\nnotwithstanding the absence of a protective order or waiver of compliance hereunder; provided that (i) Intel and/or its\nRepresentative only disclose that portion of Cloudera’s Confidential Information or other matter required by Section 2 to\nbe kept confidential which Intel’s counsel advises is legally required to be disclosed, and (ii) Intel and/or its\nRepresentative exercises its commercially reasonable efforts to preserve the confidentiality of the remainder of\nCloudera’s other Confidential Information.\n(c) If Intel is advised by its legal counsel that disclosure of Cloudera’s Confidential Information or a\nmatter required by Section 2 to be kept confidential is required by applicable law, rule or regulation, including the rules\nor regulations of a national securities exchange or other exchange on which Intel’s securities are listed for trading and in\nits filings with the Securities Exchange Commission as is required under applicable federal securities laws, Intel shall\ngive notice thereof to Cloudera as promptly as practicable under the circumstances and shall disclose only such matters\nas its legal counsel advises is required by such law, rule or regulation, provided that Intel exercises its commercially\nreasonable efforts to preserve the confidentiality of Cloudera’s Confidential Information, including, without limitation,\nby cooperating with Cloudera to obtain an appropriate protective order or other assurance that confidential treatment will\nbe accorded Cloudera’s Confidential Information by any third party to which disclosure is made. If Intel complies with\nthe preceding sentence, it may make such disclosure without liability hereunder notwithstanding the absence of a\nprotective order or waiver of compliance hereunder.\n5. Destruction upon Termination of Information Rights. All Confidential Information shall be and remain the\nproperty of Cloudera. All Confidential Information, whether in hard copy form or intangible media such as electronic\nmail or computer files, shall be returned to Cloudera or destroyed and no copies shall be retained by Intel or its\nRepresentatives: (a) with respect to all Confidential Information, immediately upon Cloudera’s request following: (i) a\nCompetitor Investment (as such term is defined in the Investor Rights Agreement); (ii) after Intel no longer holds at least\n13% of the securities in Cloudera (as adjusted for stock splits, reverse stock splits and the like) (as defined therein) on\nthe Closing Date (as defined therein); provided, further, that\n6\nin the case of both (i) and (ii), Intel and its Representatives in its or their accounting and financial reporting function\nshall be entitled to retain Confidential Information that is necessary for reporting purposes, including Intel’s unaudited\nquarterly financial reporting and Intel financial statement reporting in accordance with GAAP and for audit purposes,\nwhether internal audits or with respect to Intel’s independent public accountants, so long as such retained Confidential\nInformation is used only for the purpose described in this proviso; and (b) with respect to all Proposed Transaction\nInformation, immediately upon Cloudera’s request, which request shall not be made during the Waiting Period (as\ndefined in the Standstill Agreement), unless Intel has notified Cloudera that it has determined that it does not desire or\nintend to continue Negotiated Transaction Discussions or a potential Sale or Acquisition of Cloudera by Intel; provided,\nhowever, that, notwithstanding the foregoing, any portion of the Confidential Information that consists of reports,\nanalyses, compilations, data, studies or other documents developed or prepared by or for Intel or its Representatives that\ninclude, incorporate, refer to, reflect or are based in whole or in part on any Confidential Information will be destroyed\nimmediately upon such request; provided further that any such destruction of such information shall be certified in\nwriting to Cloudera. Notwithstanding the return or destruction of the Confidential Information, Intel and its\nRepresentatives will continue to be bound by its obligations of confidentiality, non-use and other obligations hereunder.\n6. Intel Representatives. Intel will be responsible for any breach of this Agreement by the Intel Designee with\nrespect to the Board Confidential Information or by its Representatives with respect to any Confidential Information, and\nagrees, at its sole expense, to take reasonable measures, at such time as it becomes aware of an imminent breach of the\nconfidentiality restrictions by one of its Representatives, to restrain such Representative from prohibited or unauthorized\ndisclosure or use of such Confidential Information.\n7. Compliance with Insider Trading and Public Disclosure Laws. Intel acknowledges that Intel may become\naware of material, nonpublic information concerning Cloudera. Intel acknowledges that the United States securities laws\nprohibit any person who has material, nonpublic information concerning a company whose securities are publicly traded\nfrom purchasing or selling securities of that company or disclosing such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\nAccordingly, for so long as Intel holds material, nonpublic information concerning Cloudera, Intel agrees to take\nreasonable precautions to prevent any trading in the securities of Cloudera, including by Intel’s Affiliates and\nRepresentatives, while in possession of material, nonpublic information.\n8. Disclaimer of Corporation Opportunity. Cloudera acknowledges that Intel may have, from time to time,\ninformation that may be of interest to the Cloudera (“Intel Information”) including, by way of example only, (a) Intel’s\ntechnologies, plans and services, (b) current and future investments Intel has made, may make, may consider or may\nbecome aware of with respect to other companies and other technologies, products and services, including, without\nlimitation, technologies, products and services that may be competitive with those of Cloudera, and (c) developments\nwith respect to the technologies, products and services, and plans and strategies relating thereto, of other companies,\nincluding, without limitation, companies that may be competitive with Cloudera; provided, that for the avoidance of\ndoubt Intel Information shall not include any Confidential Information provided by Cloudera to Intel or its\nRepresentatives hereunder\n7\nor that the Intel Designee receives in his or her capacity as a member of the Board. Cloudera, as a material part of the\nconsideration for this Agreement and the transactions contemplated by the Transaction Agreements (as defined in the\nStock Purchase Agreement), agrees that Intel and the Intel Designee shall have no duty to disclose any Intel Information\nto Cloudera or permit Cloudera to participate in any projects or investments based on any Intel Information, or to\notherwise take advantage of any opportunity that may be of interest to Cloudera if it were aware of such Intel\nInformation, and hereby waives, to the extent permitted by law, any claim based on the corporate opportunity doctrine or\notherwise that could limit Intel’s ability to pursue opportunities based on such Intel Information or that would require\nIntel or the Intel Designee to disclose any such Information to Cloudera or offer any opportunity relating thereto to\nCloudera.\n10. Miscellaneous.\n(a)\nPower and Authority. Each Party hereby represents that it has the power and authority\n(corporate power and corporate authority, if applicable) to execute and deliver this Agreement and that this Agreement\nconstitutes a valid and binding agreement of such Party, enforceable in accordance with its terms.\n(b)\nCosts and Expenses; Remedies. Each of the Parties will bear its own costs and expenses,\nincluding legal fees and fees of other advisors, with respect to any action to enforce its rights under this Agreement by\nlegal proceedings. It is understood and agreed that money damages would not be a sufficient remedy for any breach of\nthis Agreement and that the non‐breaching Party shall be entitled to injunctive relief. Such remedy shall not be deemed\nto be the exclusive remedy for the breach of this Agreement but shall be in addition to all other remedies available at law\nor in equity.\n(c)\nDelays or Omissions; Modification. No delay or omission to exercise any right, power, or\nremedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement,\nnor any partial exercise thereof, shall impair any such right, power, or remedy of such nonbreaching or nondefaulting\nparty, nor shall it be construed to be a waiver of or acquiescence to any such breach or default, or to any similar breach\nor default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other\nbreach or default theretofore or thereafter occurring. All remedies, whether under this Agreement or by law or otherwise\nafforded to any party, shall be cumulative and not alternative. No modification of this Agreement, termination or waiver\nof the terms and conditions hereof shall be binding upon either Party hereto, unless approved in writing by each such\nparty.\n(d)\nCounterparts; Facsimile. This Agreement may be executed in two or more counterparts, each of\nwhich shall be deemed an original, but all of which together shall constitute one and the same instrument. This\nAgreement may also be executed and delivered by facsimile signature and in two or more counterparts, each of which\nshall be deemed an original, but all of which together shall constitute one and the same instrument\n(e)\nTitles and Subtitles. The titles and subtitles used in this Agreement are for convenience only\nand are not to be considered in construing or interpreting this Agreement\n8\n(f)\nNotices. All notices and other communications given or made pursuant to this Agreement shall\nbe in writing and shall be deemed effectively delivered upon the earlier of actual receipt or: (i) personal delivery to the\nparty to be notified; (ii) when sent, if sent by electronic mail or facsimile during the recipient’s normal business hours,\nand if not sent during normal business hours, then on the recipient’s next business day; (iii) five (5) days after having\nbeen sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) business day after the\nbusiness day of deposit with a nationally recognized overnight courier, freight prepaid, specifying next day delivery, with\nwritten verification of receipt. If notice is sent to Intel, it shall be sent to Intel Corporation, c/o Intel Capital Corporation,\nAttn: Intel Capital Portfolio Manager, 2200 Mission College Blvd, M/S RN6-59, Santa Clara, CA 95054, with a copy,\nwhich shall not constitute notice, by e-mail to: portfolio.manager@intel.com. If notice is given to Cloudera, it shall be\nsent to 1001 Page Mill Road, Building 2, Palo Alto, CA 94304, Attention: Chief Executive Officer; and a copy (which\nshall not constitute notice) shall also be given to Fenwick & West LLP, 801 California Street, Mountain View,\nCA 94041, Attn: David A. Bell.\n(g)\nSeverability. In case any one or more of the provisions contained in this Agreement is for any\nreason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not\naffect any other provision of this Agreement, and such invalid, illegal, or unenforceable provision shall be reformed and\nconstrued so that it will be valid, legal, and enforceable to the maximum extent permitted by law.\n(h)\nEntire Agreement. This Agreement constitutes the full and entire understanding and agreement\namong the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the\nsubject matter hereof existing between the parties is expressly canceled. For avoidance of doubt, and notwithstanding\nanything to the contrary herein or in any other Transaction Document, information, software, data, analysis and other\nmaterial furnished by or on behalf of Cloudera or its Representatives to Intel or its Representatives under or pursuant to\nthe Commercial Agreement will be subject to the terms and conditions of the MNDA and will not be subject to the terms\nof this Agreement (regardless of whether the same information, software, data, analysis or other material may also have\nbeen furnished under or pursuant to this Agreement or one or more of the Transaction Documents).\n(i)\nGoverning Law. This agreement shall be governed in all respects, including without limitation\nvalidity, interpretation and effect, by the laws of the state of Delaware applicable to contracts executed and to be\nperformed wholly within such state without giving effect to the choice of law principles of such state.\n(j)\nDispute Resolution. Each of the parties hereto agrees to waive any bonding requirement under\nany applicable law, in the case any other party seeks to enforce the terms by way of equitable relief. Furthermore, each of\nthe parties hereto (a) consents to submit itself to the personal jurisdiction of the Delaware Court of Chancery or, to the\nextent that the Delaware Court of Chancery declines to exercise jurisdiction over the matter, other federal or state courts\nof the State of Delaware in the event any dispute arises out of this Agreement or the transactions contemplated by this\nAgreement, (b) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for\nleave from any such court, (c) agrees that it shall not bring any action relating\n9\nto this Agreement or the transactions contemplated by this Agreement in any court other than the Delaware Court of\nChancery or, to the extent that the Delaware Court of Chancery declines to exercise jurisdiction over the matter, other\nfederal or state courts of the State of Delaware, and (d) each of the parties irrevocably consents to service of process by a\nreputable overnight mail delivery service, signature requested, to the address set forth in Section 10(f) of this Agreement\nor as otherwise provided by applicable law.\n(k)\nSuccessors and Assigns; No Third Party Beneficiaries. The terms and conditions of this\nAgreement inure to the benefit of and are binding upon the respective successors and permitted assignees of the Parties.\nNothing in this Agreement, express or implied, is intended to confer upon either Party other than the parties hereto or\ntheir respective successors and permitted assignees any rights, remedies, obligations or liabilities under or by reason of\nthis Agreement, except as expressly provided herein.\n[Signatures Follow]\n10\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.\nCLOUDERA, INC.\nBy: /s/ Tom Reilly\nTom Reilly\nChief Executive Officer\nINTEL CORPORATION\nBy:\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.\nCLOUDERA, INC.\nBy:\nTom Reilly\nChief Executive Officer\nINTEL CORPORATION\nBy: /s/ Cary Klafter\nCary Klafter\nCorporate Secretary\n12
+1a5847e0b968e25ddcf41ac9c6fc63b4.pdf	effective_date jurisdiction party term	EX-10 .1 2 exhibit101cwashmore.htm EXHIBIT 10.1\nEmerson\n8000 West Florissant Avenue\nP.O . Box 4100\nSt. Louis, MO 63136-8506\nUSA\nNovember 11, 2013\nCraig W. Ashmore\n226 Conway Hill Road\nSt. Louis, MO 63141\nDear Mr. Ashmore:\nThis Letter Agreement (“Agreement”) sets out the terms of your resignation as an employee, officer and/or director of\nEmerson Electric Co. Throughout this Agreement the term “Emerson” means Emerson Electric Co. together with any and all other\nentities owned directly or indirectly, in whole or in part, by Emerson Electric Co. Your resignation and the terms of this agreement\nare effective as of November 11, 2013 (“Resignation Date”).\nIn consideration of good and valuable consideration provided to you pursuant to this Agreement, you agree as follows:\n1. NON- DISPARAGEMENT AGREEMENT\nYou will not individually or through third-parties make any public or private statement with respect to any aspect of your employment\nor resignation of employment with Emerson or the terms of this Agreement. If inquiry is made by anyone regarding your\nemployment or separation of employment from Emerson, you agree to state only “I have resigned my employment and officer and\ndirector positions with Emerson effective November 11, 2013 and look forward to further career opportunities. I have enjoyed my\nmany years of employment with Emerson, but it is time for me personally to move on. Emerson is a tremendous company and I\nwish it well.”\nYou also agree not, directly or indirectly, to disparage or make or cause to be made, any comments, statements, or communications\nof any sort to anyone - whether true or false, that may reasonably be considered to be derogatory or detrimental to Emerson or any\nReleased Parties (as defined in the Release Agreement attached as Exhibit A), their reputations, or their services. You\nacknowledge that Emerson has a good reputation locally, nationally and internationally, and you will take no action nor engage in\nany conduct that could injure or diminish that good reputation.\n2. NON-DISCLOSURE AGREEMENT\nYou agree that during your employment you have received and had access to Emerson’s trade secrets and confidential and\nproprietary information (“Confidential Information”), which includes or concerns, but is not limited to, attorney/client communications,\nglobal strategic communications, information pertaining to strategic planning and strategy, mergers and acquisitions, corporate\ntechnology, customers, pricing, business methods and operations, business policies, procedures, practices and techniques, legal\nopinions and legal matters, research or development projects or results, sales, finances, products, suppliers, personnel\nperformance and compensation, plans for future development, marketing practices and financial forecasts and budgeting. You\nagree that disclosure of such Confidential Information would be detrimental to Emerson and agree that at no time following\ntermination of your employment with Emerson will you directly or indirectly disclose or cause the disclosure of any Confidential\nInformation to any person, firm, corporation, or entity no matter what the purpose. You further agree that you will not\ndirectly or indirectly disclose the terms of this Agreement to any person except as authorized specifically herein.\nThe non-disclosure obligations set forth above shall not apply to the extent it is necessary for you to: report income to taxing\nauthorities; communicate with your attorneys or agents to obtain legal and/or financial planning advice after any such attorneys or\nagents bind themselves in writing to the same non-disclosure obligation as set forth above; or, to respond to any lawfully issued\nsubpoena or order of a court of competent jurisdiction or legitimate discovery request pursuant to state or federal rules of civil\nprocedure. If any such subpoena, order of court or discovery request is received, you agree to send to Emerson’s General Counsel\nno later than two days after receipt via email to frank.steeves@emerson.com or via hand-delivery.\nYou agree also to deliver to the office of Emerson’s General Counsel within a three day period following the Resignation Date all\nsuch Confidential Information, any other property of Emerson, and all copies thereof in your possession or control, whether in hard\ncopy or electronically stored, and whether or not stored on an Emerson-owned device. If after such three day period you determine\nthat you have any Confidential Information or other property of Emerson in your possession, you shall immediately deliver such\nConfidential Information or property to the office of Emerson’s General Counsel.\n3. NON-COMPETITION AND NON-SOLICITATION AGREEMENTS\nYou also agree that you will not, without prior written consent from both Emerson’s Chief Executive Officer and General Counsel,\ndirectly or indirectly for a period of three years from your Resignation Date (“Restricted Period”):\n(a) enter the employ of, provide consulting services to, assist, or have any financial interest in any person, firm, corporation,\nor other entity engaged in business activities anywhere in the world that directly or indirectly competes with the businesses of\nEmerson as conducted on the date of this Agreement or as contemplated on the date hereof to be developed during the Restricted\nPeriod;\n(b) acquire in any manner any investment in, or provide services to in any capacity, any equity fund, hedge fund, or other\ninvestment vehicle however structured that either directly or indirectly or through portfolio company investments or otherwise\ncompetes with the businesses of Emerson as conducted on the date hereof or as contemplated on the date hereof to be developed\nduring the Restrictive Period;\n(c) accept or solicit business from or attempt to solicit or accept business from any person that is a customer of Emerson;\n(d) divert, take any action to induce, or encourage a customer of Emerson to reduce or cease doing business with\nEmerson;\n(e) solicit, hire, or attempt to solicit or hire any person that currently or during the Restricted Period is an employee, agent or\nconsultant of Emerson to leave employment or separate his or her relationship with Emerson or induce any such person to do\nanything which you are restricted from doing by reason of this Agreement; or\n(f) engage in any other action that might undermine the business interests of Emerson.\nThe foregoing shall not restrict you from owning not more than five percent of the securities of any competitor of Emerson that is\nlisted on any national securities exchange, traded over-the-counter or that is otherwise available for investment by the general\npublic as long as you have no relationship with the issuer of such securities or any affiliate thereof, except as an investor.\nCraig W. Ashmore\nNovember 11, 2013\nPage 3\n4. REASONABLENESS, ENFORCEABILITY AND LIQUIDATED DAMAGES\nYou agree that the restrictions contained in Paragraph 3, including those on time and scope, are reasonable for the protection of\nEmerson in light of your in-depth knowledge of Emerson’s global business, your present and prior positions with Emerson, and your\naccess to Confidential Information relating to all of Emerson’s businesses. You also affirm your agreement to comply with all\nexisting non-compete, invention, non-disclosure and non-solicitation obligations you have with Emerson, including specifically your\nobligations under the Emerson incentive shares plans and award agreements, Emerson stock option plans and option agreements,\nand Emerson non-qualified supplemental executive retirement plan. You agree that your obligations set forth in this Agreement are\nin addition to and do not invalidate or supersede your obligations under other plans, agreements or contracts unless in direct\nconflict, in which case the terms of this Agreement shall prevail.\nYou agree and acknowledge that Emerson would not enter into this Agreement and provide the valuable consideration offered to\nyou herein but for the restrictions in this Agreement. You agree that a violation of these Agreements would result in irreparable\ninjury to Emerson and that, in the event of a violation or a reasonably perceived threatened violation of any of the aforementioned\nrestrictions, Emerson shall be entitled to immediate, preliminary and permanent injunctive relief which is in addition to any other\nremedies to which Emerson may be entitled. You further agree to reimburse Emerson for all costs, expenses and reasonable\nattorneys’ fees Emerson incurs to seek enforcement of any provision contained herein, whether or not litigation is commenced.\nYou agree that any breach of this Agreement will result in immediate forfeiture by you of all payments to be made or benefits\nprovided to you under this Agreement. You also agree as liquidated damages for any such breach to repay to Emerson one-half of\nthe economic value of all benefits provided to you under this Agreement prior to the date of breach. You agree that this liquidated\ndamage provision and other remedies are necessary because substantial damage will accrue to Emerson as the result of a breach,\nand the amount of damages attributable to such breach may be uncertain and difficult to calculate. Payment of liquidated damages\nshall in no way affect the settlement and release of claims by you, nor shall payment of liquidated damages limit the enforceability of\nany clause in this Agreement or the ability of Emerson to seek damages and any other relief from you as provided under applicable\nlaw.\n5. RELEASE AND DISCHARGE\nYou will release and discharge Emerson and its respective directors, officers, employees and agents from any and all claims or\nliability of whatever nature and will execute on your Resignation Date the Release Agreement attached hereto as Exhibit A. If the\nRelease Agreement attached as Exhibit A is not executed by you, this Agreement shall be null and void. You also agree that no\nbenefits or other compensation described in this Agreement shall be paid or provided to you until expiration of the seven-day\nrevocation period set forth in Paragraph 3(d) of the Release Agreement.\n6. RESIGNATION\nOn or before the Resignation Date, you agree to execute the Officer Resignation Form attached hereto as Exhibit B.\n7. CLAWBACK\nYou agree that you will remain subject to Emerson’s Clawback Policy, which provides: “If the Board determines that an executive\nofficer has engaged in intentional misconduct that caused or partially caused a material restatement of the Company's consolidated\nfinancial statements, the Board may, to the extent permitted by law and to the extent it determines that it is in the Company's best\ninterests to do so, require reimbursement to the Company of, or reduce or cancel, that portion of annual incentive or any long-term\nincentive compensation paid or credited to such executive officer on or after October 1, 2009\nCraig W. Ashmore\nNovember 11, 2013\nPage 4\nthat would not have been paid or credited had the consolidated financial statements that are the subject of such restatement been\ncorrectly stated. For purposes of this policy, the term “executive officer” means any officer of the Company who is required to file\nreports pursuant to Section 16 of the Securities Exchange Act of 1934.”\n8. COMPENSATION AND BENEFITS\nSubject to and conditioned upon compliance with your obligations and agreements in this Agreement, and also conditioned upon\nyour service from the Resignation Date until September 30, 2014 as a consultant to Emerson, as such service may be requested or\nrequired by Emerson, you will receive the compensation and benefits outlined below. The period during which you shall serve as a\nconsultant to Emerson may be terminated at any time by agreement of you and Emerson. The compensation and benefits set forth\nherein are in lieu of and replace any other compensation or benefits to which you may be entitled from Emerson:\nA. You will receive a monthly consulting fee of $47,917 through the earlier of September 30, 2014 or the date you find\nemployment elsewhere (the “Consulting Period”). Emerson will reimburse up to $40,000 of your expenses incurred during the\nConsulting Period related to the services.\nB. You will be eligible to receive your earned fiscal 2013 extra salary payment, paid at the normal time, as previously\ndetermined pursuant to customary Emerson practice and the terms of the annual incentive plan.\nC. After the Resignation Date and during the Consulting Period, you and all qualified beneficiaries may continue to\nparticipate in Emerson’s health care coverage on the same terms and conditions as employees of Emerson. After the Consulting\nPeriod, you and all qualified beneficiaries may elect to continue health care coverage under Emerson’s group health care plan\npursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), which coverage would otherwise end. You will receive\na separate letter at that time regarding continued participation under COBRA. Any participation by you and any qualified\nbeneficiaries under COBRA after the end of the Consulting Period shall be at your sole cost and expense.\nD. After the Resignation Date, you may continue coverage under the former split dollar and group universal life policies\nowned by you. Until the last day of the Consulting Period, Emerson will pay premiums on such policies in the same manner and to\nthe same extent that it has prior to the Resignation Date. After the end of the Consulting Period, you may continue coverage under\nsuch policies at your expense.\nE. Through the end of the Consulting Period, Emerson will continue to pay any amounts it is currently paying for your\nleased automobile and for dues to clubs in which you are currently a member. After the Consulting Period, Emerson shall have no\nobligation for any of these payments. Emerson will pay up to $10,000 for tax planning and compliance services related to calendar\nyear 2013. Emerson will have no other obligations for financial planning payments after the Resignation Date.\nF. In accordance with the terms of the applicable Emerson stock option plans, and as approved by the Compensation\nCommittee of the Board of Directors, all options previously awarded to you under Emerson’s stock option plans that are currently\nexercisable will remain exercisable for three months after the Resignation Date. Those that are not currently exercisable will be\ncancelled as of the Resignation Date. Any stock options that are not exercised by you within three months after the Resignation\nDate will be cancelled.\nCraig W. Ashmore\nNovember 11, 2013\nPage 5\nG. The Compensation Committee has determined that you will remain eligible to receive, subject to the other applicable\nterms of Emerson’s Incentive Shares Plans and the applicable Performance Shares Program, including those concerning\nachievement of the performance objective(s) under the Program, (1) the previously determined earned payout of the performance\nshares under the 2010 Performance Shares Program, and (2) a 25% pro rata earned payout of the performance shares awarded to\nyou under the 2013 Performance Shares Program, subject to achievement of the performance objectives under the Program, and\nbased on the actual payout percentage applicable to all participants in the Program. Payments under the 2010 and 2013\nPerformance Shares Programs will be made at the respective times provided therefor under the Programs.\nH. Pursuant to the terms of Emerson’s Incentive Shares Plans, the Compensation Committee has approved that your\nawards of restricted shares will continue to vest at the times specified in such awards, October 4, 2015, October 3, 2016, May 6,\n2018 and October 1, 2022, respectively, and that you will continue to receive dividends on such restricted share awards to the\nextent provided in the applicable award agreements.\nI. Pursuant to the terms and conditions of the qualified all-employee Emerson Electric Co. Retirement Plan and the related\nEmerson Electric Co. Pension Restoration Plan (the non-qualified supplemental executive retirement plan which covers the benefits\nyou would have been eligible to receive under the all-employee Retirement Plan were it not for the compensation limitations\nimposed under the Internal Revenue Code (“Code”)), you will be eligible to receive your monthly pension benefits accrued to date\nunder each of these plans, subject to the provisions of each such plan. Payments of your pension benefits will be paid monthly in\nthe manner and times set forth in the plans, subject to the terms and conditions of the plans.\nJ. You will be eligible to receive distributions from your Emerson Electric Co. Employee Savings Investment Plan (401(k)\nplan) to the extent permitted under the terms of the plan and applicable law. You will be eligible to receive distributions under the\nEmerson Electric Co. Savings Investment Restoration Plan (non-qualified 401(k) plan), subject to the provisions of such plans and\nyour distribution elections thereunder. Distributions from these plans which are not “grandfathered” under Section 409A of the Code\nshall be deferred to the extent required by Code Section 409A.\nK. All payments and other benefits provided for under this Agreement, including but not limited to any performance shares\nprogram payouts, vesting of restricted stock, or shares of stock issued to you upon exercise of your stock options, will be subject to\nincome tax and other withholdings as required by law.\nL. Except as provided for specifically above, after the Resignation Date you will not be permitted to continue participating in\nany Emerson benefit or compensation programs including, but not limited to, the qualified and non-qualified 401(k) plans and the\ndisability insurance program.\nM. Notwithstanding any other provisions of this Agreement, if at any time after the Restricted Period you engage in an\nactivity that you are prohibited from engaging in during the Restricted Period, Emerson shall be relieved of all further obligations\nwith respect to the payments or benefits described herein.\n*\n*\n*\nThis Agreement is deemed to be entered in the State of Missouri and, without regard for conflict of laws principles, shall be\ninterpreted in accordance with and governed by the laws of the State of Missouri. Emerson and you agree that any legal action or\nproceeding with respect to this Agreement shall be brought and determined in the courts of the County of St. Louis, State of\nMissouri or of the United States\nCraig W. Ashmore\nNovember 11, 2013\nPage 6\nof America for the Eastern District of Missouri and that you submit to the jurisdiction of such courts with respect to any such action\nor proceeding.\nYou acknowledge that Emerson has advised you to consult with an attorney if you need assistance in reviewing or understanding\nthis Agreement or any of the documents referenced in this Agreement, including the Release Agreement.\nPlease confirm that the foregoing represents your understanding of our entire agreement by signing in the space provided below.\nSincerely,\n/s/ David N. Farr\nDavid N. Farr\nChairman & Chief Executive Officer\nACCEPTED AND AGREED TO THIS 10th\nDAY OF November, 2013:\n/s/ Craig W. Ashmore\nName: Craig W. Ashmore\nExhibit A - RELEASE AGREEMENT\nThis Release Agreement is Exhibit A to that certain Letter Agreement by and between Emerson Electric Co. (“Employer”)\nand Craig W. Ashmore (“Employee”). In consideration of the mutual promises and covenants contained in the Letter Agreement and\nherein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do\nhereby agree as follows:\n1.\nEmployment. Employee was previously employed by Employer. The employment of Employee with Employer\nhas ended as a result of Employee’s resignation effective November 11, 2013.\n2.\nRelease. For and in consideration of the covenants, terms and conditions set forth in the Letter Agreement and\nthis Release Agreement, Employee, for himself and his heirs, agrees to and does hereby waive, covenant not to sue, releases, and\nforever discharges Employer, and each and every one of Employer’s parent, subsidiary and other affiliated entities (the “Emerson\nEntities”), and their respective agents, employees, officers, directors, stockholders, managers, members, successors,\npredecessors, contractors, attorneys, agents and assigns (collectively referred to as “Released Parties”), from and with respect to\nall matters, claims, charges, demands, damages, causes of action, debts, liabilities, controversies, judgments, and suits of every\nkind and nature whatsoever, foreseen or unforeseen, known or unknown, arising prior to the date this Release Agreement becomes\neffective and including, but not limited to, those in any way related to Employee and/or Employee’s separation from employment.\nThis release by Employee of Released Parties expressly includes, but is not limited to, any claim or cause of action against\nReleased Parties related to or arising out of tort, contract, equity, implied covenant, invasion of privacy, defamation, personal injury,\nwrongful discharge, emotional distress, discrimination (whether based on race, sex, age, color, national origin, religion, disability, or\nany other class protected by law), harassment, retaliation, claims for workers' compensation benefits, claims for unpaid wages, any\nclaim under the Age Discrimination in Employment Act, 29 U.S .C. §621 et seq., 42 U.S .C. §1981, Title VII of the Civil Rights Act of\n1964, as amended, 42 U.S .C. §2000e et seq., the Civil Rights Act of 1866, 42 U.S .C. §1981, the Americans With Disabilities Act, 42\nU.S .C. §12101, et seq., the Employee Retirement Income Security Act of 1974, as amended, 29 U.S .C. §1001, et seq., the Family\nMedical Leave Act, 29 U.S .C. § 2601 et seq., any claim under the Fair Labor Standards Act of 1938, 29 U.S .C. §201 et seq., the\nMissouri Human Rights Act, RSMo §213.010 et seq.; any claim under common law, and any claim under any federal, state or local\nstatute, regulation, constitution, order or executive order. This release also expressly includes, but is not limited to, any claim for\nattorneys' fees or costs. Employee affirms and warrants that he has made no charge, claim, complaint, or otherwise initiated action\nagainst Employer in any government agency, court or other forum and that no such matter is pending. Employee further affirms and\nwarrants that Employee has not been retaliated against for reporting, or taking any actions, pertaining to allegations of wrongdoing\nby Employer or its officers and employees. Employee avers and agrees that he has no personal knowledge of any employee, officer\nor director of Employer engaging in any act related to the performance of their duties at or for Employer which Employee knows or\nbelieves to be illegal and Employee acknowledges that he has never complained of any unlawful conduct by Employer. Employee\nhereby releases and relinquishes any and all rights to employment, reinstatement and any right to future employment with Employer\nor the Emerson Entities. Employee also waives and releases any right or ability to be a class or collective action representative or to\notherwise participate in any putative or certified class, collective or multi-party action or proceeding based on a claim in which\nEmployer or any one or more Released Parties is a party. Notwithstanding the foregoing, Employee is not waiving any right to\nenforce any term or provision of the Letter Agreement.\nCraig W. Ashmore\nNovember 11, 2013\nPage 2\n3. Waiver of ADEA Rights. By execution of this Release Agreement, Employee expressly waives any and all rights or\nclaims arising under the Age Discrimination in Employment Act of 1967 (“ADEA”) and:\n(a)\nEmployee acknowledges and agrees that the waiver of his rights or claims arising under the ADEA is in\nexchange for the consideration provided in the Letter Agreement which, Employee agrees, is beyond that to which Employee is\notherwise entitled; and\n(b)\nEmployee acknowledges that Employer has, and does, hereby expressly advise him to consult with an\nattorney of his choosing, at his own expense, prior to executing this Release Agreement; and\n(c)\nEmployee agrees that he has been given a period of not less than twenty-one (21) days from receipt of\nthis document within which to consider this Release Agreement; and\n(d)\nEmployee acknowledges he has been advised by Employer that he is entitled to revoke (in the event he\nexecutes this Release Agreement) his waiver of rights or claims arising under the ADEA within seven (7) days after executing this\nRelease Agreement and that said waiver will not and does not become effective or enforceable until the seven (7) day revocation\nperiod has expired; and\n(e)\nThe parties agree that should Employee exercise his right to revoke the waiver under subpart (d) of this\nSection 3, this entire Release Agreement and Letter Agreement, and their obligations, are null and void and of no effect and,\nnotwithstanding any other provision of this Release Agreement or the Letter Agreement to the contrary, no severance pay or other\nconsideration shall be due, owing, paid or provided until the seven (7) day revocation period has expired without revocation by\nEmployee. Notice of Employee’s decision to revoke the waiver may be sent to Emerson’s General Counsel by fax (at 314-553-\n3025), email (to frank.steeves@emerson.com) or hand-delivery.\n1.\nRemedies. Without limiting the remedies available to Employer for any breach of this Release Agreement,\nEmployee agrees that any breach of either this Release Agreement or the Letter Agreement will result in immediate forfeiture of any\nfuture payments to be made to, or benefits to be provided to, Employee and all other remedies and relief as specifically set forth\nfurther in the Letter Agreement shall be available to Employer.\n2.\nSuccessors and Assigns. This Release Agreement binds, and inures to the benefit of, the parties’ respective\nheirs, administrators, representatives, executors, successors, and assigns.\n3.\nReview by Employee. Employee acknowledges that he has read the provisions of this Release Agreement, that\nEmployee was advised of his right to review this Release Agreement with an attorney at his expense, and that Employee fully\nunderstands the meaning and intent of this Release Agreement and agrees to all of its terms.\nEMPLOYEE\n/s/ Craig W. Ashmore\nCraig W. Ashmore\nDate:\n11/10/13\nExhibit B - OFFICER RESIGNATION FORM\nI, Craig W. Ashmore, do hereby submit my resignation, effective November 11, 2013, from my position as Executive Vice President\n- Planning and Development and as an Advisory Director of Emerson Electric Co., as well as from any other positions I may hold\nwith any subsidiaries or affiliates of Emerson.\n/s/ Craig W. Ashmore\n11/10/2013\nCraig W. Ashmore\nDate	EX-10.1 2 exhibit101cwashmore.htm EXHIBIT 10.1\n-\nEmerson\n8000 West Florissant Avenue\nP.O. Box 4100\nSt. Louis, MO 63136-8506\nUSA\nNovember 11, 2013\nCraig W. Ashmore\n226 Conway Hill Road\nSt. Louis, MO 63141\nDear Mr. Ashmore:\nThis Letter Agreement (“Agreement”) sets out the terms of your resignation as an employee, officer and/or director of\nEmerson Electric Co. Throughout this Agreement the term “Emerson” means Emerson Electric Co. together with any and all other\nentities owned directly or indirectly, in whole or in part, by Emerson Electric Co. Your resignation and the terms of this agreement\nare effective as of November 11, 2013 (“Resignation Date”).\nIn consideration of good and valuable consideration provided to you pursuant to this Agreement, you agree as follows:\n1. NON- DISPARAGEMENT AGREEMENT\nYou will not individually or through third-parties make any public or private statement with respect to any aspect of your employment\nor resignation of employment with Emerson or the terms of this Agreement. If inquiry is made by anyone regarding your\nemployment or separation of employment from Emerson, you agree to state only “I have resigned my employment and officer and\ndirector positions with Emerson effective November 11, 2013 and look forward to further career opportunities. | have enjoyed my\nmany years of employment with Emerson, but it is time for me personally to move on. Emerson is a tremendous company and |\nwish it well.”\nYou also agree not, directly or indirectly, to disparage or make or cause to be made, any comments, statements, or communications\nof any sort to anyone - whether true or false, that may reasonably be considered to be derogatory or detrimental to Emerson or any\nReleased Parties (as defined in the Release Agreement attached as Exhibit A), their reputations, or their services. You\nacknowledge that Emerson has a good reputation locally, nationally and internationally, and you will take no action nor engage in\nany conduct that could injure or diminish that good reputation.\n2. NON-DISCLOSURE AGREEMENT\nYou agree that during your employment you have received and had access to Emerson’s trade secrets and confidential and\nproprietary information (“Confidential Information”), which includes or concerns, but is not limited to, attorney/client communications,\nglobal strategic communications, information pertaining to strategic planning and strategy, mergers and acquisitions, corporate\ntechnology, customers, pricing, business methods and operations, business policies, procedures, practices and techniques, legal\nopinions and legal matters, research or development projects or results, sales, finances, products, suppliers, personnel\nperformance and compensation, plans for future development, marketing practices and financial forecasts and budgeting. You\nagree that disclosure of such Confidential Information would be detrimental to Emerson and agree that at no time following\ntermination of your employment with Emerson will you directly or indirectly disclose or cause the disclosure of any Confidential\nInformation to any person, firm, corporation, or entity no matter what the purpose. You further agree that you will not\ndirectly or indirectly disclose the terms of this Agreement to any person except as authorized specifically herein.\nThe non-disclosure obligations set forth above shall not apply to the extent it is necessary for you to: report income to taxing\nauthorities; communicate with your attorneys or agents to obtain legal and/or financial planning advice after any such attorneys or\nagents bind themselves in writing to the same non-disclosure obligation as set forth above; or, to respond to any lawfully issued\nsubpoena or order of a court of competent jurisdiction or legitimate discovery request pursuant to state or federal rules of civil\nprocedure. If any such subpoena, order of court or discovery request is received, you agree to send to Emerson’s General Counsel\nno later than two days after receipt via email to frank.steeves@emerson.com or via hand-delivery.\nYou agree also to deliver to the office of Emerson’s General Counsel within a three day period following the Resignation Date all\nsuch Confidential Information, any other property of Emerson, and all copies thereof in your possession or control, whether in hard\ncopy or electronically stored, and whether or not stored on an Emerson-owned device. If after such three day period you determine\nthat you have any Confidential Information or other property of Emerson in your possession, you shall immediately deliver such\nConfidential Information or property to the office of Emerson’s General Counsel.\n3. NON-COMPETITION AND NON-SOLICITATION AGREEMENTS\nYou also agree that you will not, without prior written consent from both Emerson’s Chief Executive Officer and General Counsel,\ndirectly or indirectly for a period of three years from your Resignation Date (“Restricted Period”):\n(a) enter the employ of, provide consulting services to, assist, or have any financial interest in any person, firm, corporation,\nor other entity engaged in business activities anywhere in the world that directly or indirectly competes with the businesses of\nEmerson as conducted on the date of this Agreement or as contemplated on the date hereof to be developed during the Restricted\nPeriod;\n(b) acquire in any manner any investment in, or provide services to in any capacity, any equity fund, hedge fund, or other\ninvestment vehicle however structured that either directly or indirectly or through portfolio company investments or otherwise\ncompetes with the businesses of Emerson as conducted on the date hereof or as contemplated on the date hereof to be developed\nduring the Restrictive Period;\n(c) accept or solicit business from or attempt to solicit or accept business from any person that is a customer of Emerson;\n(d) divert, take any action to induce, or encourage a customer of Emerson to reduce or cease doing business with\nEmerson;\n(e) solicit, hire, or attempt to solicit or hire any person that currently or during the Restricted Period is an employee, agent or\nconsultant of Emerson to leave employment or separate his or her relationship with Emerson or induce any such person to do\nanything which you are restricted from doing by reason of this Agreement; or\n(f) engage in any other action that might undermine the business interests of Emerson.\nThe foregoing shall not restrict you from owning not more than five percent of the securities of any competitor of Emerson that is\nlisted on any national securities exchange, traded over-the-counter or that is otherwise available for investment by the general\npublic as long as you have no relationship with the issuer of such securities or any affiliate thereof, except as an investor.\nCraig W. Ashmore\nNovember 11, 2013\nPage 3\n4. REASONABLENESS, ENFORCEABILITY AND LIQUIDATED DAMAGES\nYou agree that the restrictions contained in Paragraph 3, including those on time and scope, are reasonable for the protection of\nEmerson in light of your in-depth knowledge of Emerson’s global business, your present and prior positions with Emerson, and your\naccess to Confidential Information relating to all of Emerson’s businesses. You also affirm your agreement to comply with all\nexisting non-compete, invention, non-disclosure and non-solicitation obligations you have with Emerson, including specifically your\nobligations under the Emerson incentive shares plans and award agreements, Emerson stock option plans and option agreements,\nand Emerson non-qualified supplemental executive retirement plan. You agree that your obligations set forth in this Agreement are\nin addition to and do not invalidate or supersede your obligations under other plans, agreements or contracts unless in direct\nconflict, in which case the terms of this Agreement shall prevail.\nYou agree and acknowledge that Emerson would not enter into this Agreement and provide the valuable consideration offered to\nyou herein but for the restrictions in this Agreement. You agree that a violation of these Agreements would result in irreparable\ninjury to Emerson and that, in the event of a violation or a reasonably perceived threatened violation of any of the aforementioned\nrestrictions, Emerson shall be entitled to immediate, preliminary and permanent injunctive relief which is in addition to any other\nremedies to which Emerson may be entitled. You further agree to reimburse Emerson for all costs, expenses and reasonable\nattorneys’ fees Emerson incurs to seek enforcement of any provision contained herein, whether or not litigation is commenced.\nYou agree that any breach of this Agreement will result in immediate forfeiture by you of all payments to be made or benefits\nprovided to you under this Agreement. You also agree as liquidated damages for any such breach to repay to Emerson one-half of\nthe economic value of all benefits provided to you under this Agreement prior to the date of breach. You agree that this liquidated\ndamage provision and other remedies are necessary because substantial damage will accrue to Emerson as the result of a breach,\nand the amount of damages attributable to such breach may be uncertain and difficult to calculate. Payment of liquidated damages\nshall in no way affect the settlement and release of claims by you, nor shall payment of liquidated damages limit the enforceability of\nany clause in this Agreement or the ability of Emerson to seek damages and any other relief from you as provided under applicable\nlaw.\n5. RELEASE AND DISCHARGE\nYou will release and discharge Emerson and its respective directors, officers, employees and agents from any and all claims or\nliability of whatever nature and will execute on your Resignation Date the Release Agreement attached hereto as Exhibit A. If the\nRelease Agreement attached as Exhibit A is not executed by you, this Agreement shall be null and void. You also agree that no\nbenefits or other compensation described in this Agreement shall be paid or provided to you until expiration of the seven-day\nrevocation period set forth in Paragraph 3(d) of the Release Agreement.\n6. RESIGNATION\nOn or before the Resignation Date, you agree to execute the Officer Resignation Form attached hereto as Exhibit B.\n7. CLAWBACK\nYou agree that you will remain subject to Emerson’s Clawback Policy, which provides: “If the Board determines that an executive\nofficer has engaged in intentional misconduct that caused or partially caused a material restatement of the Company's consolidated\nfinancial statements, the Board may, to the extent permitted by law and to the extent it determines that it is in the Company's best\ninterests to do so, require reimbursement to the Company of, or reduce or cancel, that portion of annual incentive or any long-term\nincentive compensation paid or credited to such executive officer on or after October 1, 2009\nCraig W. Ashmore\nNovember 11, 2013\nPage 4\nthat would not have been paid or credited had the consolidated financial statements that are the subject of such restatement been\ncorrectly stated. For purposes of this policy, the term “executive officer” means any officer of the Company who is required to file\nreports pursuant to Section 16 of the Securities Exchange Act of 1934.”\n8. COMPENSATION AND BENEFITS\nSubject to and conditioned upon compliance with your obligations and agreements in this Agreement, and also conditioned upon\nyour service from the Resignation Date until September 30, 2014 as a consultant to Emerson, as such service may be requested or\nrequired by Emerson, you will receive the compensation and benefits outlined below. The period during which you shall serve as a\nconsultant to Emerson may be terminated at any time by agreement of you and Emerson. The compensation and benefits set forth\nherein are in lieu of and replace any other compensation or benefits to which you may be entitled from Emerson:\nA. You will receive a monthly consulting fee of $47,917 through the earlier of September 30, 2014 or the date you find\nemployment elsewhere (the “Consulting Period”). Emerson will reimburse up to $40,000 of your expenses incurred during the\nConsulting Period related to the services.\nB. You will be eligible to receive your earned fiscal 2013 extra salary payment, paid at the normal time, as previously\ndetermined pursuant to customary Emerson practice and the terms of the annual incentive plan.\nC. After the Resignation Date and during the Consulting Period, you and all qualified beneficiaries may continue to\nparticipate in Emerson’s health care coverage on the same terms and conditions as employees of Emerson. After the Consulting\nPeriod, you and all qualified beneficiaries may elect to continue health care coverage under Emerson’s group health care plan\npursuant to the Consolidated Omnibus Budget Reconciliation Act (‘COBRA”), which coverage would otherwise end. You will receive\na separate letter at that time regarding continued participation under COBRA. Any participation by you and any qualified\nbeneficiaries under COBRA after the end of the Consulting Period shall be at your sole cost and expense.\nD. After the Resignation Date, you may continue coverage under the former split dollar and group universal life policies\nowned by you. Until the last day of the Consulting Period, Emerson will pay premiums on such policies in the same manner and to\nthe same extent that it has prior to the Resignation Date. After the end of the Consulting Period, you may continue coverage under\nsuch policies at your expense.\nE. Through the end of the Consulting Period, Emerson will continue to pay any amounts it is currently paying for your\nleased automobile and for dues to clubs in which you are currently a member. After the Consulting Period, Emerson shall have no\nobligation for any of these payments. Emerson will pay up to $10,000 for tax planning and compliance services related to calendar\nyear 2013. Emerson will have no other obligations for financial planning payments after the Resignation Date.\nF. In accordance with the terms of the applicable Emerson stock option plans, and as approved by the Compensation\nCommittee of the Board of Directors, all options previously awarded to you under Emerson’s stock option plans that are currently\nexercisable will remain exercisable for three months after the Resignation Date. Those that are not currently exercisable will be\ncancelled as of the Resignation Date. Any stock options that are not exercised by you within three months after the Resignation\nDate will be cancelled.\nCraig W. Ashmore\nNovember 11, 2013\nPage 5\nG. The Compensation Committee has determined that you will remain eligible to receive, subject to the other applicable\nterms of Emerson’s Incentive Shares Plans and the applicable Performance Shares Program, including those concerning\nachievement of the performance objective(s) under the Program, (1) the previously determined earned payout of the performance\nshares under the 2010 Performance Shares Program, and (2) a 25% pro rata earned payout of the performance shares awarded to\nyou under the 2013 Performance Shares Program, subject to achievement of the performance objectives under the Program, and\nbased on the actual payout percentage applicable to all participants in the Program. Payments under the 2010 and 2013\nPerformance Shares Programs will be made at the respective times provided therefor under the Programs.\nH. Pursuant to the terms of Emerson’s Incentive Shares Plans, the Compensation Committee has approved that your\nawards of restricted shares will continue to vest at the times specified in such awards, October 4, 2015, October 3, 2016, May 6,\n2018 and October 1, 2022, respectively, and that you will continue to receive dividends on such restricted share awards to the\nextent provided in the applicable award agreements.\nI. Pursuant to the terms and conditions of the qualified all-employee Emerson Electric Co. Retirement Plan and the related\nEmerson Electric Co. Pension Restoration Plan (the non-qualified supplemental executive retirement plan which covers the benefits\nyou would have been eligible to receive under the all-employee Retirement Plan were it not for the compensation limitations\nimposed under the Internal Revenue Code (“Code”)), you will be eligible to receive your monthly pension benefits accrued to date\nunder each of these plans, subject to the provisions of each such plan. Payments of your pension benefits will be paid monthly in\nthe manner and times set forth in the plans, subject to the terms and conditions of the plans.\nJ. You will be eligible to receive distributions from your Emerson Electric Co. Employee Savings Investment Plan (401(k)\nplan) to the extent permitted under the terms of the plan and applicable law. You will be eligible to receive distributions under the\nEmerson Electric Co. Savings Investment Restoration Plan (non-qualified 401(k) plan), subject to the provisions of such plans and\nyour distribution elections thereunder. Distributions from these plans which are not “grandfathered” under Section 409A of the Code\nshall be deferred to the extent required by Code Section 409A.\nK. All payments and other benefits provided for under this Agreement, including but not limited to any performance shares\nprogram payouts, vesting of restricted stock, or shares of stock issued to you upon exercise of your stock options, will be subject to\nincome tax and other withholdings as required by law.\nL. Except as provided for specifically above, after the Resignation Date you will not be permitted to continue participating in\nany Emerson benefit or compensation programs including, but not limited to, the qualified and non-qualified 401(k) plans and the\ndisability insurance program.\nM. Notwithstanding any other provisions of this Agreement, if at any time after the Restricted Period you engage in an\nactivity that you are prohibited from engaging in during the Restricted Period, Emerson shall be relieved of all further obligations\nwith respect to the payments or benefits described herein.\nThis Agreement is deemed to be entered in the State of Missouri and, without regard for conflict of laws principles, shall be\ninterpreted in accordance with and governed by the laws of the State of Missouri. Emerson and you agree that any legal action or\nproceeding with respect to this Agreement shall be brought and determined in the courts of the County of St. Louis, State of\nMissouri or of the United States\nCraig W. Ashmore\nNovember 11, 2013\nPage 6\nof America for the Eastern District of Missouri and that you submit to the jurisdiction of such courts with respect to any such action\nor proceeding.\nYou acknowledge that Emerson has advised you to consult with an attorney if you need assistance in reviewing or understanding\nthis Agreement or any of the documents referenced in this Agreement, including the Release Agreement.\nPlease confirm that the foregoing represents your understanding of our entire agreement by signing in the space provided below.\nSincerely,\n/s/ David N. Farr\nDavid N. Farr\nChairman & Chief Executive Officer\nACCEPTED AND AGREED TO THIS 10th\nDAY OF November, 2013:\n/sl Craig W. Ashmore\nName: Craig W. Ashmore\nExhibit A - RELEASE AGREEMENT\nThis Release Agreement is Exhibit A to that certain Letter Agreement by and between Emerson Electric Co. (“Employer”)\nand Craig W. Ashmore (“Employee”). In consideration of the mutual promises and covenants contained in the Letter Agreement and\nherein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do\nhereby agree as follows:\n1. Employment. Employee was previously employed by Employer. The employment of Employee with Employer\nhas ended as a result of Employee’s resignation effective November 11, 2013.\n2. Release. For and in consideration of the covenants, terms and conditions set forth in the Letter Agreement and\nthis Release Agreement, Employee, for himself and his heirs, agrees to and does hereby waive, covenant not to sue, releases, and\nforever discharges Employer, and each and every one of Employer’s parent, subsidiary and other affiliated entities (the “Emerson\nEntities”), and their respective agents, employees, officers, directors, stockholders, managers, members, successors,\npredecessors, contractors, attorneys, agents and assigns (collectively referred to as “Released Parties”), from and with respect to\nall matters, claims, charges, demands, damages, causes of action, debts, liabilities, controversies, judgments, and suits of every\nkind and nature whatsoever, foreseen or unforeseen, known or unknown, arising prior to the date this Release Agreement becomes\neffective and including, but not limited to, those in any way related to Employee and/or Employee’s separation from employment.\nThis release by Employee of Released Parties expressly includes, but is not limited to, any claim or cause of action against\nReleased Parties related to or arising out of tort, contract, equity, implied covenant, invasion of privacy, defamation, personal injury,\nwrongful discharge, emotional distress, discrimination (whether based on race, sex, age, color, national origin, religion, disability, or\nany other class protected by law), harassment, retaliation, claims for workers' compensation benefits, claims for unpaid wages, any\nclaim under the Age Discrimination in Employment Act, 29 U.S.C. 8621 et seq., 42 U.S.C. 81981, Title VII of the Civil Rights Act of\n1964, as amended, 42 U.S.C. §2000e et seq., the Civil Rights Act of 1866, 42 U.S.C. §1981, the Americans With Disabilities Act, 42\nU.S.C. 812101, et seq., the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. 81001, et seq., the Family\nMedical Leave Act, 29 U.S.C. § 2601 et seq., any claim under the Fair Labor Standards Act of 1938, 29 U.S.C. 8201 et seq., the\nMissouri Human Rights Act, RSMo §213.010 et seq.; any claim under common law, and any claim under any federal, state or local\nstatute, regulation, constitution, order or executive order. This release also expressly includes, but is not limited to, any claim for\nattorneys' fees or costs. Employee affirms and warrants that he has made no charge, claim, complaint, or otherwise initiated action\nagainst Employer in any government agency, court or other forum and that no such matter is pending. Employee further affirms and\nwarrants that Employee has not been retaliated against for reporting, or taking any actions, pertaining to allegations of wrongdoing\nby Employer or its officers and employees. Employee avers and agrees that he has no personal knowledge of any employee, officer\nor director of Employer engaging in any act related to the performance of their duties at or for Employer which Employee knows or\nbelieves to be illegal and Employee acknowledges that he has never complained of any unlawful conduct by Employer. Employee\nhereby releases and relinquishes any and all rights to employment, reinstatement and any right to future employment with Employer\nor the Emerson Entities. Employee also waives and releases any right or ability to be a class or collective action representative or to\notherwise participate in any putative or certified class, collective or multi-party action or proceeding based on a claim in which\nEmployer or any one or more Released Parties is a party. Notwithstanding the foregoing, Employee is not waiving any right to\nenforce any term or provision of the Letter Agreement.\nCraig W. Ashmore\nNovember 11, 2013\nPage 2\n3. Waiver of ADEA Rights. By execution of this Release Agreement, Employee expressly waives any and all rights or\nclaims arising under the Age Discrimination in Employment Act of 1967 (“ADEA”) and:\n(a) Employee acknowledges and agrees that the waiver of his rights or claims arising under the ADEA is in\nexchange for the consideration provided in the Letter Agreement which, Employee agrees, is beyond that to which Employee is\notherwise entitled; and\n(b) Employee acknowledges that Employer has, and does, hereby expressly advise him to consult with an\nattorney of his choosing, at his own expense, prior to executing this Release Agreement; and\n() Employee agrees that he has been given a period of not less than twenty-one (21) days from receipt of\nthis document within which to consider this Release Agreement; and\n(d) Employee acknowledges he has been advised by Employer that he is entitled to revoke (in the event he\nexecutes this Release Agreement) his waiver of rights or claims arising under the ADEA within seven (7) days after executing this\nRelease Agreement and that said waiver will not and does not become effective or enforceable until the seven (7) day revocation\nperiod has expired; and\n(e) The parties agree that should Employee exercise his right to revoke the waiver under subpart (d) of this\nSection 3, this entire Release Agreement and Letter Agreement, and their obligations, are null and void and of no effect and,\nnotwithstanding any other provision of this Release Agreement or the Letter Agreement to the contrary, no severance pay or other\nconsideration shall be due, owing, paid or provided until the seven (7) day revocation period has expired without revocation by\nEmployee. Notice of Employee’s decision to revoke the waiver may be sent to Emerson’s General Counsel by fax (at 314-553-\n3025), email (to frank.steeves@emerson.com) or hand-delivery.\n1. Remedies. Without limiting the remedies available to Employer for any breach of this Release Agreement,\nEmployee agrees that any breach of either this Release Agreement or the Letter Agreement will result in immediate forfeiture of any\nfuture payments to be made to, or benefits to be provided to, Employee and all other remedies and relief as specifically set forth\nfurther in the Letter Agreement shall be available to Employer.\n2. Successors and Assigns. This Release Agreement binds, and inures to the benefit of, the parties’ respective\nheirs, administrators, representatives, executors, successors, and assigns.\n3. Review by Employee. Employee acknowledges that he has read the provisions of this Release Agreement, that\nEmployee was advised of his right to review this Release Agreement with an attorney at his expense, and that Employee fully\nunderstands the meaning and intent of this Release Agreement and agrees to all of its terms.\nEMPLOYEE\n/s/ Craig W. Ashmore\nCraig W. Ashmore\nDate:\n11/10/13\nExhibit B - OFFICER RESIGNATION FORM\nI, Craig W. Ashmore, do hereby submit my resignation, effective November 11, 2013, from my position as Executive Vice President\n- Planning and Development and as an Advisory Director of Emerson Electric Co., as well as from any other positions | may hold\nwith any subsidiaries or affiliates of Emerson.\n/sl Craig W. Ashmore 11/10/2013\nCraig W. Ashmore Date	EX-10.1 exhibit101cwashmore.htm EXHIBIT 10.1\nEmerson\n8000 West Florissant Avenue\nP.O. Box 4100\nSt. Louis, MO 63136-8506\nUSA\nNovember 11, 2013\nCraig W. Ashmore\n226 Conway Hill Road\nSt. Louis, MO 63141\nDear Mr. Ashmore:\nThis Letter Agreement ("Agreement") sets out the terms of your resignation as an employee, officer and/or director of\nEmerson Electric Co. Throughout this Agreement the term "Emerson" means Emerson Electric Co. together with any and all other\nentities owned directly or indirectly, in whole or in part, by Emerson Electric Co. Your resignation and the terms of this agreement\nare effective as of November 11, 2013 ("Resignation Date").\nIn consideration of good and valuable consideration provided to you pursuant to this Agreement, you agree as follows:\n1. NON- DISPARAGEMENT AGREEMENT\nYou will not individually or through third-parties make any public or private statement with respect to any aspect of your employment\nor resignation of employment with Emerson or the terms of this Agreement If inquiry is made by anyone regarding your\nemployment or separation of employment from Emerson, you agree to state only "I have resigned my employment and officer and\ndirector positions with Emerson effective November 11, 2013 and look forward to further career opportunities. I have enjoyed my\nmany years of employment with Emerson, but it is time for me personally to move on. Emerson is a tremendous company and I\nwish it well."\nYou also agree not, directly or indirectly, to disparage or make or cause to be made, any comments, statements, or communications\nof any sort to anyone whether true or false, that may reasonably be considered to be derogatory or detrimental to Emerson or any\nReleased Parties (as defined in the Release Agreement attached as Exhibit A), their reputations, or their services. You\nacknowledge that Emerson has a good reputation locally, nationally and internationally, and you will take no action nor engage\nin\nany conduct that could injure or diminish that good reputation.\n2. NON-DISCLOSURE AGREEMENT\nYou agree that during your employment you have received and had access to Emerson's trade secrets and confidential and\nproprietary information ("Confidentia Information"), which includes or concerns, but is not limited to, attorney/client communications,\nglobal strategic communications, information pertaining to strategic planning and strategy, mergers and acquisitions, corporate\ntechnology, customers, pricing, business methods and operations, business policies, procedures, practices and techniques, legal\nopinions and legal matters, research or development projects or results, sales, finances, products, suppliers, personne\nperformance and compensation, plans for future development, marketing practices and financial forecasts and budgeting. You\nagree that disclosure of such Confidential Information would be detrimental to Emerson and agree that at no time following\ntermination of your employment with Emerson will you directly or indirectly disclose or cause the disclosure of any Confidential\nInformation to any person, firm, corporation, or entity no matter what the purpose. You further agree that you will not\ndirectly or indirectly disclose the terms of this Agreement to any person except as authorized specifically herein.\nThe non-disclosure obligations set forth above shall not apply to the extent it is necessary for you to: report income to taxing\nauthorities; communicate with your attorneys or agents to obtain legal and/or financial planning advice after any such attorneys\nor\nagents bind themselves in writing to the same non-disclosure obligation as set forth above; or, to respond to any lawfully issued\nsubpoena or order of a court of competent jurisdiction or legitimate discovery request pursuant to state or federal rules of civil\nprocedure. If any such subpoena, order of court or discovery request is received, you agree to send to Emerson's General Counsel\nno later than two days after receipt via email to rank.steeves@emerson.com or via hand-delivery.\nYou agree also to deliver to the office of Emerson's General Counsel within a three day period following the Resignation Date all\nsuch Confidential Information, any other property of Emerson, and all copies thereof in your possession or control, whether in hard\ncopy or electronically stored, and whether or not stored on an Emerson-owned device. If after such three day period you determine\nthat you have any Confidential Information or other property of Emerson in your possession, you shall immediately deliver such\nConfidential Information or property to the office of Emerson's General Counsel.\n3. NON-COMPETITION AND NON-SOLICITATION AGREEMENTS\nYou also agree that you will not, without prior written consent from both Emerson's Chief Executive Officer and General Counsel,\ndirectly or indirectly for a period of three years from your Resignation Date ("Restricted Period"):\n(a) enter the employ of, provide consulting services to, assist, or have any financial interest in any person, firm, corporation,\nor other entity engaged in business activities anywhere in the world that directly or indirectly competes with the businesses of\nEmerson as conducted on the date of this Agreement or as contemplated on the date hereof to be developed during the Restricted\nPeriod;\n(b) acquire in any manner any investment in, or provide services to in any capacity, any equity fund, hedge fund, or other\ninvestment vehicle however structured that either directly or indirectly or through portfolio company investments or otherwise\ncompetes with the businesses of Emerson as conducted on the date hereof or as contemplated on the date hereof to be developed\nduring the Restrictive Period;\n(c) accept or solicit business from or attempt to solicit or accept business from any person that is a customer of Emerson;\n(d) divert, take any action to induce, or encourage a customer of Emerson to reduce or cease doing business with\nEmerson;\n(e) solicit, hire, or attempt to solicit or hire any person that currently or during the Restricted Period is an employee, agent or\nconsultant of Emerson to leave employment or separate his or her relationship with Emerson or induce any such person to do\nanything which you are restricted from doing by reason of this Agreement; or\n(f) engage in any other action that might undermine the business interests of Emerson.\nThe foregoing shall not restrict you from owning not more than five percent of the securities of any competitor of Emerson that is\nlisted on any national securities exchange, traded over-the-counter or that is otherwise available for investment by the general\npublic as long as you have no relationship with the issuer of such securities or any affiliate thereof, except as an investor.\nCraig W. Ashmore\nNovember 11, 2013\nPage 3\n4. REASONABLENESS,. ENFORCEABILITY AND LIQUIDATED DAMAGES\nYou agree that the restrictions contained in Paragraph 3, including those on time and scope, are reasonable for the protection of\nEmerson in light of your in-depth knowledge of Emerson's globa business, your present and prior positions with Emerson, and your\naccess to Confidential Information relating to all of Emerson's businesses. You also affirm your agreement to comply with all\nexisting non-compete, invention non-disclosure and non-solicitation obligations you have with Emerson, including specifically your\nobligations under the Emerson incentive shares plans and award agreements, Emerson stock option plans and option agreements,\nand Emerson non-qualified supplemental executive retirement plan. You agree that your obligations set forth in this Agreement are\nin\naddition to and do not invalidate or supersede your obligations under other plans, agreements or contracts unless in direct\nconflict, in which case the terms of this Agreement shall prevail.\nYou agree and acknowledge that Emerson would not enter into this Agreement and provide the valuable consideration offered to\nyou herein but for the restrictions in this Agreement. You agree that a violation of these Agreements would result in irreparable\ninjury to Emerson and that, in the event of a violation or a reasonably perceived threatened violation of any of the aforementioned\nrestrictions, Emerson shall be entitled to immediate, preliminary and permanent injunctive relief which is in addition to any other\nremedies to which Emerson may be entitled. You further agree to reimburse Emerson for all costs, expenses and reasonable\nattorneys' fees Emerson incurs to seek enforcement of any provision contained herein, whether or not litigation is commenced.\nYou agree that any breach of this Agreement will result in immediate forfeiture by you of all payments to be made or benefits\nprovided to you under this Agreement. You also agree as liquidated damages for any such breach to repay to Emerson one-half\nof\nthe economic value of all benefits provided to you under this Agreement prior to the date of breach. You agree that this liquidated\ndamage provision and other remedies are necessary because substantia damage will accrue to Emerson as the result of a breach,\nand the amount of damages attributable to such breach may be uncertain and difficult to calculate. Payment of liquidated damages\nshall\nin\nno\nway\naffect\nthe\nsettlement\nand\nrelease\nof\nclaims\nby\nyou,\nnor\nshall\npayment\nof\nliquidated\ndamages\nlimit\nthe\nenforceability\nof\nany clause in this Agreement or the ability of Emerson to seek damages and any other relief from you as provided under applicable\nlaw.\n5. RELEASE AND DISCHARGE\nYou will release and discharge Emerson and its respective directors, officers, employees and agents from any and all claims or\nliability of whatever nature and will execute on your Resignation Date the Release Agreement attached hereto as Exhibit A. If the\nRelease Agreement attached as Exhibit A is not executed by you, this Agreement shall be null and void. You also agree that no\nbenefits or other compensation described in this Agreement shall be paid or provided to you until expiration of the seven-day\nrevocation period set forth in Paragraph 3(d) of the Release Agreement.\n6. RESIGNATION\nOn or before the Resignation Date, you agree to execute the Officer Resignation Form attached hereto as Exhibit B.\n7. CLAWBACK\nYou agree that you will remain subject to Emerson's Clawback Policy, which provides: "If the Board determines that an executive\nofficer has engaged in intentional misconduct that caused or partially caused a material restatement of the Company's consolidated\nfinancial statements, the Board may, to the extent permitted by law and to the extent it determines that it is in the Company's best\ninterests to do so, require reimbursement to the Company of, or reduce or cancel, that portion of annual incentive or any long-term\nincentive compensation paid or credited to such executive officer on or after October 1, 2009\nCraig W. Ashmore\nNovember 11, 2013\nPage 4\nthat would not have been paid or credited had the consolidated financial statements that are the subject of such restatement been\ncorrectly\nstated.\nFor\npurposes\nof\nthis\npolicy,\nthe\nterm\n"executive\nofficer"\nmeans\nany\nofficer\nof\nthe\nCompany\nwho\nis\nrequired\nto\nfile\nreports pursuant to Section 16 of the Securities Exchange Act of 1934."\n8. COMPENSATION AND BENEFITS\nSubject to and conditioned upon compliance with your obligations and agreements in this Agreement, and also conditioned upon\nyour service from the Resignation Date until September 30, 2014 as a consultant to Emerson, as such service may be requested or\nrequired by Emerson, you will receive the compensation and benefits outlined below. The period during which you shall serve as a\nconsultant to Emerson may be terminated at any time by agreement of you and Emerson. The compensation and benefits set forth\nherein are in lieu of and replace any other compensation or benefits to which you may be entitled from Emerson:\nA. You will receive a monthly consulting fee of $47,917 through the earlier of September 30, 2014 or the date you find\nemployment elsewhere (the "Consulting Period"). Emerson will reimburse up to $40,000 of your expenses incurred during the\nConsulting Period related to the services.\nB.\nYou will be eligible to receive your earned fisca 2013 extra salary payment, paid at the normal time, as previously\ndetermined pursuant to customary Emerson practice and the terms of the annual incentive plan.\nC. After the Resignation Date and during the Consulting Period, you and all qualified beneficiaries may continue to\nparticipate in Emerson's health care coverage on the same terms and conditions as employees of Emerson. After the Consulting\nPeriod, you and all qualified beneficiaries may elect to continue health care coverage under Emerson's group health care plan\npursuant to the Consolidated Omnibus Budget Reconciliation Act ("COBRA"), which coverage would otherwise end. You will receive\na separate letter at that time regarding continued participation under COBRA. Any participation by you and any qualified\nbeneficiaries under COBRA after the end of the Consulting Period shall be at your sole cost and expense.\nD. After the Resignation Date, you may continue coverage under the former split dollar and group universal life policies\nowned by you. Until the last day of the Consulting Period, Emerson will pay premiums on such policies in the same manner and to\nthe same extent that it has prior to the Resignation Date. After the end of the Consulting Period, you may continue coverage under\nsuch policies at your expense.\nE. Through the end of the Consulting Period, Emerson will continue to pay any amounts it is currently paying for your\nleased automobile and for dues to clubs in which you are currently a member. After the Consulting Period, Emerson shall have no\nobligation for any of these payments. Emerson will pay up to $10,000 for tax planning and compliance services related to calendar\nyear 2013. Emerson will have no other obligations for financial planning payments after the Resignation Date.\nF. In accordance with the terms of the applicable Emerson stock option plans, and as approved by the Compensation\nCommittee of the Board of Directors, all options previously awarded to you under Emerson's stock option plans that are currently\nexercisable\nwill\nremain\nexercisable\nfor\nthree\nmonths\nafter\nthe\nResignation\nDate.\nThose\nthat\nare\nnot\ncurrently\nexercisable\nwill\nbe\ncancelled as of the Resignation Date. Any stock options that are not exercised by you within three months after the Resignation\nDate will be cancelled.\nCraig W. Ashmore\nNovember 11, 2013\nPage 5\nG. The Compensation Committee has determined that you will remain eligible to receive, subject to the other applicable\nterms of Emerson's Incentive Shares Plans and the applicable Performance Shares Program, including those concerning\nachievement of the performance objective(s) under the Program, (1) the previously determined earned payout of the performance\nshares under the 2010 Performance Shares Program, and (2) a 25% pro rata earned payout of the performance shares awarded to\nyou under the 2013 Performance Shares Program, subject to achievement of the performance objectives under the Program, and\nbased on the actual payout percentage applicable to all participants in the Program. Payments under the 2010 and 2013\nPerformance Shares Programs will be made at the respective times provided therefor under the Programs.\nH. Pursuant to the terms of Emerson's Incentive Shares Plans, the Compensation Committee has approved that your\nawards of restricted shares will continue to vest at the times specified in such awards, October 4, 2015, October 3, 2016, May 6,\n2018 and October 1, 2022, respectively, and that you will continue to receive dividends on such restricted share awards to the\nextent provided in the applicable award agreements.\nI. Pursuant to the terms and conditions of the qualified all-employee Emerson Electric Co. Retirement Plan and the related\nEmerson Electric Co. Pension Restoration Plan (the non-qualified supplemental executive retirement plan which covers the benefits\nyou would have been eligible to receive under the all-employee Retirement Plan were it not for the compensation limitations\nimposed under the Internal Revenue Code ("Code")), you will be eligible to receive your monthly pension benefits accrued to date\nunder each of these plans, subject to the provisions of each such plan. Payments of your pension benefits will be paid monthly in\nthe manner and times set forth in the plans, subject to the terms and conditions of the plans.\nJ. You will be eligible to receive distributions from your Emerson Electric Co. Employee Savings Investment Plan (401(k)\nplan) to the extent permitted under the terms of the plan and applicable law. You will be eligible to receive distributions under the\nEmerson Electric Co. Savings Investment Restoration Plan (non-qualified 401(k) plan), subject to the provisions of such plans and\nyour distribution elections thereunder. Distributions from these plans which are not "grandfathered" under Section 409A of the Code\nshall be deferred to the extent required by Code Section 409A.\nK. All payments and other benefits provided for under this Agreement, including but not limited to any performance shares\nprogram payouts, vesting of restricted stock, or shares of stock issued to you upon exercise of your stock options, will be subject to\nincome tax and other withholdings as required by law.\nL. Except as provided for specifically above, after the Resignation Date you will not be permitted to continue participating in\nany Emerson benefit or compensation programs including, but not limited to, the qualified and non-qualified 401(k) plans and the\ndisability insurance program.\nM. Notwithstanding any other provisions of this Agreement, if at any time after the Restricted Period you engage in an\nactivity that you are prohibited from engaging in during the Restricted Period, Emerson shall be relieved of all further obligations\nwith respect to the payments or benefits described herein.\nThis Agreement is deemed to be entered in the State of Missouri and, without regard for conflict of laws principles, shall be\ninterpreted in accordance with and governed by the laws of the State of Missouri. Emerson and you agree that any legal action or\nproceeding with respect to this Agreement shall be brought and determined in the courts of the County of St. Louis, State of\nMissouri or of the United States\nCraig W. Ashmore\nNovember 11, 2013\nPage 6\nof America for the Eastern District of Missouri and that you submit to the jurisdiction of such courts with respect to any such action\nor proceeding.\nYou acknowledge that Emerson has advised you to consult with an attorney if you need assistance in reviewing or understanding\nthis Agreement or any of the documents referenced in this Agreement, including the Release Agreement.\nPlease confirm that the foregoing represents your understanding of our entire agreement by signing in the space provided below.\nSincerely,\nIs/ David N. Farr\nDavid N. Farr\nChairman & Chief Executive Officer\nACCEPTED AND AGREED TO THIS 10th\nDAY OF November, 2013:\nIs/ Craig W. Ashmore\nName: Craig W. Ashmore\nExhibit A RELEASE AGREEMENT\nThis Release Agreement is Exhibit A to that certain Letter Agreement by and between Emerson Electric Co. ("Employer")\nand Craig W. Ashmore ("Employee"). In consideration of the mutual promises and covenants contained in the Letter Agreement and\nherein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do\nhereby agree as follows:\n1.\nEmployment. Employee was previously employed by Employer. The employment of Employee with Employer\nhas ended as a result of Employee's resignation effective November 11, 2013\n2.\nRelease. For and in consideration of the covenants, terms and conditions set forth in the Letter Agreement and\nthis Release Agreement, Employee, for himself and his heirs, agrees to and does hereby waive, covenant not to sue, releases, and\nforever discharges Employer, and each and every one of Employer's parent, subsidiary and other affiliated entities (the "Emerson\nEntities"), and their respective agents, employees, officers, directors, stockholders, managers, members, successors,\npredecessors, contractors, attorneys, agents and assigns (collectively referred to as "Released Parties"), from and with respect to\nall matters, claims, charges, demands, damages, causes of action, debts, liabilities, controversies, judgments, and suits of every\nkind and nature whatsoever, foreseen or unforeseen, known or unknown, arising prior to the date this Release Agreement becomes\neffective and including, but not limited to, those in any way related to Employee and/or Employee's separation from employment.\nThis release by Employee of Released Parties expressly includes, but is not limited to, any claim or cause of action against\nReleased Parties related to or arising out of tort, contract, equity, implied covenant, invasion of privacy, defamation, personal injury,\nwrongful discharge, emotional distress, discrimination (whether based on race, sex, age, color, national origin, religion, disability,\nor\nany other class protected by law), harassment retaliation, claims for workers' compensation benefits, claims for unpaid wages, any\nclaim under the Age Discrimination in Employment Act, 29 U.S.C. 8621 et seq., 42 U.S.C. $1981, Title VII of the Civil Rights Act of\n1964, as amended, 42 U.S.C. 82000e et seq., the Civil Rights Act of 1866, 42 U.S.C. 81981, the Americans With Disabilities\nAct,\n42\nU.S.C. 812101, et seq., the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. 81001, et seq., the Family\nMedical Leave Act, 29 U.S.C. s 2601 et seq., any claim under the Fair Labor Standards Act of 1938, 29 U.S.C. 8201 et seq., the\nMissouri Human Rights Act, RSMo 8213.010 et seq.; any claim under common law, and any claim under any federal, state or local\nstatute, regulation, constitution, order or executive order. This release also expressly includes, but is not limited to, any claim for\nattorneys' fees or costs. Employee affirms and warrants that he has made no charge, claim, complaint, or otherwise initiated action\nagainst\nEmployer\nin\nany\ngovernment\nagency,\ncourt\nor\nother\nforum\nand\nthat\nno\nsuch\nmatter\nis\npending.\nEmployee\nfurther\naffirms\nand\nwarrants that Employee has not been retaliated against for reporting, or taking any actions, pertaining to allegations of wrongdoing\nby Employer or its officers and employees. Employee avers and agrees that he has no persona knowledge of any employee, officer\nor\ndirector\nof\nEmployer\nengaging\nin\nany\nact\nrelated\nto\nthe\nperformance\nof\ntheir\nduties\nat\nor\nfor\nEmployer\nwhich\nEmployee\nknows\nor\nbelieves to be illegal and Employee acknowledges that he has never complained of any unlawful conduct by Employer. Employee\nhereby releases and relinquishes any and all rights to employment, reinstatement and any right to future employment with Employer\nor the Emerson Entities. Employee also waives and releases any right or ability to be a class or collective action representative or\nto\notherwise participate in any putative or certified class, collective or multi-party action or proceeding based on a claim in which\nEmployer or any one or more Released Parties is a party. Notwithstanding the foregoing, Employee is not waiving any right to\nenforce any term or provision of the Letter Agreement.\nCraig W. Ashmore\nNovember 11, 2013\nPage 2\n3. Waiver of ADEA Rights. By execution of this Release Agreement, Employee expressly waives any and all rights or\nclaims arising under the Age Discrimination in Employment Act of 1967 ("ADEA") and:\n(a)\nEmployee acknowledges and agrees that the waiver of his rights or claims arising under the ADEA is\nin\nexchange for the consideration provided in the Letter Agreement which, Employee agrees, is beyond that to which Employee is\notherwise entitled; and\n(b)\nEmployee acknowledges that Employer has, and does, hereby expressly advise him to consult with an\nattorney of his choosing, at his own expense, prior to executing this Release Agreement; and\n(c)\nEmployee agrees that he has been given a period of not less than twenty-one (21) days from receipt of\nthis document within which to consider this Release Agreement; and\n(d)\nEmployee acknowledges he has been advised by Employer that he is entitled to revoke (in the event\nhe\nexecutes this Release Agreement) his waiver of rights or claims arising under the ADEA within seven (7) days after executing this\nRelease Agreement and that said waiver will not and does not become effective or enforceable until the seven (7) day revocation\nperiod has expired; and\n(e)\nThe parties agree that should Employee exercise his right to revoke the waiver under subpart (d) of this\nSection 3, this entire Release Agreement and Letter Agreement, and their obligations, are null and void and of no effect and,\nnotwithstanding any other provision of this Release Agreement or the Letter Agreement to the contrary, no severance pay or other\nconsideration shall be due, owing, paid or provided until the seven (7) day revocation period has expired without revocation by\nEmployee. Notice of Employee's decision to revoke the waiver may be sent to Emerson's General Counsel by fax (at 314-553-\n3025), email (to frank.steeves@emerson.com) or hand-delivery.\n1.\nRemedies. Without limiting the remedies available to Employer for any breach of this Release Agreement,\nEmployee agrees that any breach of either this Release Agreement or the Letter Agreement will result in immediate forfeiture of any\nfuture payments to be made to, or benefits to be provided to, Employee and all other remedies and relief as specifically set forth\nfurther in the Letter Agreement shall be available to Employer.\n2.\nSuccessors and Assigns. This Release Agreement binds, and inures to the benefit of, the parties' respective\nheirs, administrators, representatives, executors, successors, and assigns.\n3.\nReview by. Employee. Employee acknowledges that he has read the provisions of this Release Agreement, that\nEmployee was advised of his right to review this Release Agreement with an attorney at his expense, and that Employee fully\nunderstands the meaning and intent of this Release Agreement and agrees to all of its terms.\nEMPLOYEE\nIs/ Craig W. Ashmore\nCraig W. Ashmore\nDate:\n11/10/13\nExhibit B - OFFICER RESIGNATION FORM\nI, Craig W. Ashmore, do hereby submit my resignation, effective November 11, 2013, from my position as Executive Vice President\n- Planning and Development and as an Advisory Director of Emerson Electric Co., as well as from any other positions I may hold\nwith any subsidiaries or affiliates of Emerson.\n/s/ Craig W. Ashmore\n11/10/2013\nCraig W. Ashmore\nDate	EX-10 .1 2 exhibit101cwashmore.htm EXHIBIT 10.1\nEmerson\n8000 West Florissant Avenue\nP.O . Box 4100\nSt. Louis, MO 63136-8506\nUSA\nNovember 11, 2013\nCraig W. Ashmore\n226 Conway Hill Road\nSt. Louis, MO 63141\nDear Mr. Ashmore:\nThis Letter Agreement (“Agreement”) sets out the terms of your resignation as an employee, officer and/or director of\nEmerson Electric Co. Throughout this Agreement the term “Emerson” means Emerson Electric Co. together with any and all other\nentities owned directly or indirectly, in whole or in part, by Emerson Electric Co. Your resignation and the terms of this agreement\nare effective as of November 11, 2013 (“Resignation Date”).\nIn consideration of good and valuable consideration provided to you pursuant to this Agreement, you agree as follows:\n1. NON- DISPARAGEMENT AGREEMENT\nYou will not individually or through third-parties make any public or private statement with respect to any aspect of your employment\nor resignation of employment with Emerson or the terms of this Agreement. If inquiry is made by anyone regarding your\nemployment or separation of employment from Emerson, you agree to state only “I have resigned my employment and officer and\ndirector positions with Emerson effective November 11, 2013 and look forward to further career opportunities. I have enjoyed my\nmany years of employment with Emerson, but it is time for me personally to move on. Emerson is a tremendous company and I\nwish it well.”\nYou also agree not, directly or indirectly, to disparage or make or cause to be made, any comments, statements, or communications\nof any sort to anyone - whether true or false, that may reasonably be considered to be derogatory or detrimental to Emerson or any\nReleased Parties (as defined in the Release Agreement attached as Exhibit A), their reputations, or their services. You\nacknowledge that Emerson has a good reputation locally, nationally and internationally, and you will take no action nor engage in\nany conduct that could injure or diminish that good reputation.\n2. NON-DISCLOSURE AGREEMENT\nYou agree that during your employment you have received and had access to Emerson’s trade secrets and confidential and\nproprietary information (“Confidential Information”), which includes or concerns, but is not limited to, attorney/client communications,\nglobal strategic communications, information pertaining to strategic planning and strategy, mergers and acquisitions, corporate\ntechnology, customers, pricing, business methods and operations, business policies, procedures, practices and techniques, legal\nopinions and legal matters, research or development projects or results, sales, finances, products, suppliers, personnel\nperformance and compensation, plans for future development, marketing practices and financial forecasts and budgeting. You\nagree that disclosure of such Confidential Information would be detrimental to Emerson and agree that at no time following\ntermination of your employment with Emerson will you directly or indirectly disclose or cause the disclosure of any Confidential\nInformation to any person, firm, corporation, or entity no matter what the purpose. You further agree that you will not\ndirectly or indirectly disclose the terms of this Agreement to any person except as authorized specifically herein.\nThe non-disclosure obligations set forth above shall not apply to the extent it is necessary for you to: report income to taxing\nauthorities; communicate with your attorneys or agents to obtain legal and/or financial planning advice after any such attorneys or\nagents bind themselves in writing to the same non-disclosure obligation as set forth above; or, to respond to any lawfully issued\nsubpoena or order of a court of competent jurisdiction or legitimate discovery request pursuant to state or federal rules of civil\nprocedure. If any such subpoena, order of court or discovery request is received, you agree to send to Emerson’s General Counsel\nno later than two days after receipt via email to frank.steeves@emerson.com or via hand-delivery.\nYou agree also to deliver to the office of Emerson’s General Counsel within a three day period following the Resignation Date all\nsuch Confidential Information, any other property of Emerson, and all copies thereof in your possession or control, whether in hard\ncopy or electronically stored, and whether or not stored on an Emerson-owned device. If after such three day period you determine\nthat you have any Confidential Information or other property of Emerson in your possession, you shall immediately deliver such\nConfidential Information or property to the office of Emerson’s General Counsel.\n3. NON-COMPETITION AND NON-SOLICITATION AGREEMENTS\nYou also agree that you will not, without prior written consent from both Emerson’s Chief Executive Officer and General Counsel,\ndirectly or indirectly for a period of three years from your Resignation Date (“Restricted Period”):\n(a) enter the employ of, provide consulting services to, assist, or have any financial interest in any person, firm, corporation,\nor other entity engaged in business activities anywhere in the world that directly or indirectly competes with the businesses of\nEmerson as conducted on the date of this Agreement or as contemplated on the date hereof to be developed during the Restricted\nPeriod;\n(b) acquire in any manner any investment in, or provide services to in any capacity, any equity fund, hedge fund, or other\ninvestment vehicle however structured that either directly or indirectly or through portfolio company investments or otherwise\ncompetes with the businesses of Emerson as conducted on the date hereof or as contemplated on the date hereof to be developed\nduring the Restrictive Period;\n(c) accept or solicit business from or attempt to solicit or accept business from any person that is a customer of Emerson;\n(d) divert, take any action to induce, or encourage a customer of Emerson to reduce or cease doing business with\nEmerson;\n(e) solicit, hire, or attempt to solicit or hire any person that currently or during the Restricted Period is an employee, agent or\nconsultant of Emerson to leave employment or separate his or her relationship with Emerson or induce any such person to do\nanything which you are restricted from doing by reason of this Agreement; or\n(f) engage in any other action that might undermine the business interests of Emerson.\nThe foregoing shall not restrict you from owning not more than five percent of the securities of any competitor of Emerson that is\nlisted on any national securities exchange, traded over-the-counter or that is otherwise available for investment by the general\npublic as long as you have no relationship with the issuer of such securities or any affiliate thereof, except as an investor.\nCraig W. Ashmore\nNovember 11, 2013\nPage 3\n4. REASONABLENESS, ENFORCEABILITY AND LIQUIDATED DAMAGES\nYou agree that the restrictions contained in Paragraph 3, including those on time and scope, are reasonable for the protection of\nEmerson in light of your in-depth knowledge of Emerson’s global business, your present and prior positions with Emerson, and your\naccess to Confidential Information relating to all of Emerson’s businesses. You also affirm your agreement to comply with all\nexisting non-compete, invention, non-disclosure and non-solicitation obligations you have with Emerson, including specifically your\nobligations under the Emerson incentive shares plans and award agreements, Emerson stock option plans and option agreements,\nand Emerson non-qualified supplemental executive retirement plan. You agree that your obligations set forth in this Agreement are\nin addition to and do not invalidate or supersede your obligations under other plans, agreements or contracts unless in direct\nconflict, in which case the terms of this Agreement shall prevail.\nYou agree and acknowledge that Emerson would not enter into this Agreement and provide the valuable consideration offered to\nyou herein but for the restrictions in this Agreement. You agree that a violation of these Agreements would result in irreparable\ninjury to Emerson and that, in the event of a violation or a reasonably perceived threatened violation of any of the aforementioned\nrestrictions, Emerson shall be entitled to immediate, preliminary and permanent injunctive relief which is in addition to any other\nremedies to which Emerson may be entitled. You further agree to reimburse Emerson for all costs, expenses and reasonable\nattorneys’ fees Emerson incurs to seek enforcement of any provision contained herein, whether or not litigation is commenced.\nYou agree that any breach of this Agreement will result in immediate forfeiture by you of all payments to be made or benefits\nprovided to you under this Agreement. You also agree as liquidated damages for any such breach to repay to Emerson one-half of\nthe economic value of all benefits provided to you under this Agreement prior to the date of breach. You agree that this liquidated\ndamage provision and other remedies are necessary because substantial damage will accrue to Emerson as the result of a breach,\nand the amount of damages attributable to such breach may be uncertain and difficult to calculate. Payment of liquidated damages\nshall in no way affect the settlement and release of claims by you, nor shall payment of liquidated damages limit the enforceability of\nany clause in this Agreement or the ability of Emerson to seek damages and any other relief from you as provided under applicable\nlaw.\n5. RELEASE AND DISCHARGE\nYou will release and discharge Emerson and its respective directors, officers, employees and agents from any and all claims or\nliability of whatever nature and will execute on your Resignation Date the Release Agreement attached hereto as Exhibit A. If the\nRelease Agreement attached as Exhibit A is not executed by you, this Agreement shall be null and void. You also agree that no\nbenefits or other compensation described in this Agreement shall be paid or provided to you until expiration of the seven-day\nrevocation period set forth in Paragraph 3(d) of the Release Agreement.\n6. RESIGNATION\nOn or before the Resignation Date, you agree to execute the Officer Resignation Form attached hereto as Exhibit B.\n7. CLAWBACK\nYou agree that you will remain subject to Emerson’s Clawback Policy, which provides: “If the Board determines that an executive\nofficer has engaged in intentional misconduct that caused or partially caused a material restatement of the Company's consolidated\nfinancial statements, the Board may, to the extent permitted by law and to the extent it determines that it is in the Company's best\ninterests to do so, require reimbursement to the Company of, or reduce or cancel, that portion of annual incentive or any long-term\nincentive compensation paid or credited to such executive officer on or after October 1, 2009\nCraig W. Ashmore\nNovember 11, 2013\nPage 4\nthat would not have been paid or credited had the consolidated financial statements that are the subject of such restatement been\ncorrectly stated. For purposes of this policy, the term “executive officer” means any officer of the Company who is required to file\nreports pursuant to Section 16 of the Securities Exchange Act of 1934.”\n8. COMPENSATION AND BENEFITS\nSubject to and conditioned upon compliance with your obligations and agreements in this Agreement, and also conditioned upon\nyour service from the Resignation Date until September 30, 2014 as a consultant to Emerson, as such service may be requested or\nrequired by Emerson, you will receive the compensation and benefits outlined below. The period during which you shall serve as a\nconsultant to Emerson may be terminated at any time by agreement of you and Emerson. The compensation and benefits set forth\nherein are in lieu of and replace any other compensation or benefits to which you may be entitled from Emerson:\nA. You will receive a monthly consulting fee of $47,917 through the earlier of September 30, 2014 or the date you find\nemployment elsewhere (the “Consulting Period”). Emerson will reimburse up to $40,000 of your expenses incurred during the\nConsulting Period related to the services.\nB. You will be eligible to receive your earned fiscal 2013 extra salary payment, paid at the normal time, as previously\ndetermined pursuant to customary Emerson practice and the terms of the annual incentive plan.\nC. After the Resignation Date and during the Consulting Period, you and all qualified beneficiaries may continue to\nparticipate in Emerson’s health care coverage on the same terms and conditions as employees of Emerson. After the Consulting\nPeriod, you and all qualified beneficiaries may elect to continue health care coverage under Emerson’s group health care plan\npursuant to the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), which coverage would otherwise end. You will receive\na separate letter at that time regarding continued participation under COBRA. Any participation by you and any qualified\nbeneficiaries under COBRA after the end of the Consulting Period shall be at your sole cost and expense.\nD. After the Resignation Date, you may continue coverage under the former split dollar and group universal life policies\nowned by you. Until the last day of the Consulting Period, Emerson will pay premiums on such policies in the same manner and to\nthe same extent that it has prior to the Resignation Date. After the end of the Consulting Period, you may continue coverage under\nsuch policies at your expense.\nE. Through the end of the Consulting Period, Emerson will continue to pay any amounts it is currently paying for your\nleased automobile and for dues to clubs in which you are currently a member. After the Consulting Period, Emerson shall have no\nobligation for any of these payments. Emerson will pay up to $10,000 for tax planning and compliance services related to calendar\nyear 2013. Emerson will have no other obligations for financial planning payments after the Resignation Date.\nF. In accordance with the terms of the applicable Emerson stock option plans, and as approved by the Compensation\nCommittee of the Board of Directors, all options previously awarded to you under Emerson’s stock option plans that are currently\nexercisable will remain exercisable for three months after the Resignation Date. Those that are not currently exercisable will be\ncancelled as of the Resignation Date. Any stock options that are not exercised by you within three months after the Resignation\nDate will be cancelled.\nCraig W. Ashmore\nNovember 11, 2013\nPage 5\nG. The Compensation Committee has determined that you will remain eligible to receive, subject to the other applicable\nterms of Emerson’s Incentive Shares Plans and the applicable Performance Shares Program, including those concerning\nachievement of the performance objective(s) under the Program, (1) the previously determined earned payout of the performance\nshares under the 2010 Performance Shares Program, and (2) a 25% pro rata earned payout of the performance shares awarded to\nyou under the 2013 Performance Shares Program, subject to achievement of the performance objectives under the Program, and\nbased on the actual payout percentage applicable to all participants in the Program. Payments under the 2010 and 2013\nPerformance Shares Programs will be made at the respective times provided therefor under the Programs.\nH. Pursuant to the terms of Emerson’s Incentive Shares Plans, the Compensation Committee has approved that your\nawards of restricted shares will continue to vest at the times specified in such awards, October 4, 2015, October 3, 2016, May 6,\n2018 and October 1, 2022, respectively, and that you will continue to receive dividends on such restricted share awards to the\nextent provided in the applicable award agreements.\nI. Pursuant to the terms and conditions of the qualified all-employee Emerson Electric Co. Retirement Plan and the related\nEmerson Electric Co. Pension Restoration Plan (the non-qualified supplemental executive retirement plan which covers the benefits\nyou would have been eligible to receive under the all-employee Retirement Plan were it not for the compensation limitations\nimposed under the Internal Revenue Code (“Code”)), you will be eligible to receive your monthly pension benefits accrued to date\nunder each of these plans, subject to the provisions of each such plan. Payments of your pension benefits will be paid monthly in\nthe manner and times set forth in the plans, subject to the terms and conditions of the plans.\nJ. You will be eligible to receive distributions from your Emerson Electric Co. Employee Savings Investment Plan (401(k)\nplan) to the extent permitted under the terms of the plan and applicable law. You will be eligible to receive distributions under the\nEmerson Electric Co. Savings Investment Restoration Plan (non-qualified 401(k) plan), subject to the provisions of such plans and\nyour distribution elections thereunder. Distributions from these plans which are not “grandfathered” under Section 409A of the Code\nshall be deferred to the extent required by Code Section 409A.\nK. All payments and other benefits provided for under this Agreement, including but not limited to any performance shares\nprogram payouts, vesting of restricted stock, or shares of stock issued to you upon exercise of your stock options, will be subject to\nincome tax and other withholdings as required by law.\nL. Except as provided for specifically above, after the Resignation Date you will not be permitted to continue participating in\nany Emerson benefit or compensation programs including, but not limited to, the qualified and non-qualified 401(k) plans and the\ndisability insurance program.\nM. Notwithstanding any other provisions of this Agreement, if at any time after the Restricted Period you engage in an\nactivity that you are prohibited from engaging in during the Restricted Period, Emerson shall be relieved of all further obligations\nwith respect to the payments or benefits described herein.\n*\n*\n*\nThis Agreement is deemed to be entered in the State of Missouri and, without regard for conflict of laws principles, shall be\ninterpreted in accordance with and governed by the laws of the State of Missouri. Emerson and you agree that any legal action or\nproceeding with respect to this Agreement shall be brought and determined in the courts of the County of St. Louis, State of\nMissouri or of the United States\nCraig W. Ashmore\nNovember 11, 2013\nPage 6\nof America for the Eastern District of Missouri and that you submit to the jurisdiction of such courts with respect to any such action\nor proceeding.\nYou acknowledge that Emerson has advised you to consult with an attorney if you need assistance in reviewing or understanding\nthis Agreement or any of the documents referenced in this Agreement, including the Release Agreement.\nPlease confirm that the foregoing represents your understanding of our entire agreement by signing in the space provided below.\nSincerely,\n/s/ David N. Farr\nDavid N. Farr\nChairman & Chief Executive Officer\nACCEPTED AND AGREED TO THIS 10th\nDAY OF November, 2013:\n/s/ Craig W. Ashmore\nName: Craig W. Ashmore\nExhibit A - RELEASE AGREEMENT\nThis Release Agreement is Exhibit A to that certain Letter Agreement by and between Emerson Electric Co. (“Employer”)\nand Craig W. Ashmore (“Employee”). In consideration of the mutual promises and covenants contained in the Letter Agreement and\nherein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do\nhereby agree as follows:\n1.\nEmployment. Employee was previously employed by Employer. The employment of Employee with Employer\nhas ended as a result of Employee’s resignation effective November 11, 2013.\n2.\nRelease. For and in consideration of the covenants, terms and conditions set forth in the Letter Agreement and\nthis Release Agreement, Employee, for himself and his heirs, agrees to and does hereby waive, covenant not to sue, releases, and\nforever discharges Employer, and each and every one of Employer’s parent, subsidiary and other affiliated entities (the “Emerson\nEntities”), and their respective agents, employees, officers, directors, stockholders, managers, members, successors,\npredecessors, contractors, attorneys, agents and assigns (collectively referred to as “Released Parties”), from and with respect to\nall matters, claims, charges, demands, damages, causes of action, debts, liabilities, controversies, judgments, and suits of every\nkind and nature whatsoever, foreseen or unforeseen, known or unknown, arising prior to the date this Release Agreement becomes\neffective and including, but not limited to, those in any way related to Employee and/or Employee’s separation from employment.\nThis release by Employee of Released Parties expressly includes, but is not limited to, any claim or cause of action against\nReleased Parties related to or arising out of tort, contract, equity, implied covenant, invasion of privacy, defamation, personal injury,\nwrongful discharge, emotional distress, discrimination (whether based on race, sex, age, color, national origin, religion, disability, or\nany other class protected by law), harassment, retaliation, claims for workers' compensation benefits, claims for unpaid wages, any\nclaim under the Age Discrimination in Employment Act, 29 U.S .C. §621 et seq., 42 U.S .C. §1981, Title VII of the Civil Rights Act of\n1964, as amended, 42 U.S .C. §2000e et seq., the Civil Rights Act of 1866, 42 U.S .C. §1981, the Americans With Disabilities Act, 42\nU.S .C. §12101, et seq., the Employee Retirement Income Security Act of 1974, as amended, 29 U.S .C. §1001, et seq., the Family\nMedical Leave Act, 29 U.S .C. § 2601 et seq., any claim under the Fair Labor Standards Act of 1938, 29 U.S .C. §201 et seq., the\nMissouri Human Rights Act, RSMo §213.010 et seq.; any claim under common law, and any claim under any federal, state or local\nstatute, regulation, constitution, order or executive order. This release also expressly includes, but is not limited to, any claim for\nattorneys' fees or costs. Employee affirms and warrants that he has made no charge, claim, complaint, or otherwise initiated action\nagainst Employer in any government agency, court or other forum and that no such matter is pending. Employee further affirms and\nwarrants that Employee has not been retaliated against for reporting, or taking any actions, pertaining to allegations of wrongdoing\nby Employer or its officers and employees. Employee avers and agrees that he has no personal knowledge of any employee, officer\nor director of Employer engaging in any act related to the performance of their duties at or for Employer which Employee knows or\nbelieves to be illegal and Employee acknowledges that he has never complained of any unlawful conduct by Employer. Employee\nhereby releases and relinquishes any and all rights to employment, reinstatement and any right to future employment with Employer\nor the Emerson Entities. Employee also waives and releases any right or ability to be a class or collective action representative or to\notherwise participate in any putative or certified class, collective or multi-party action or proceeding based on a claim in which\nEmployer or any one or more Released Parties is a party. Notwithstanding the foregoing, Employee is not waiving any right to\nenforce any term or provision of the Letter Agreement.\nCraig W. Ashmore\nNovember 11, 2013\nPage 2\n3. Waiver of ADEA Rights. By execution of this Release Agreement, Employee expressly waives any and all rights or\nclaims arising under the Age Discrimination in Employment Act of 1967 (“ADEA”) and:\n(a)\nEmployee acknowledges and agrees that the waiver of his rights or claims arising under the ADEA is in\nexchange for the consideration provided in the Letter Agreement which, Employee agrees, is beyond that to which Employee is\notherwise entitled; and\n(b)\nEmployee acknowledges that Employer has, and does, hereby expressly advise him to consult with an\nattorney of his choosing, at his own expense, prior to executing this Release Agreement; and\n(c)\nEmployee agrees that he has been given a period of not less than twenty-one (21) days from receipt of\nthis document within which to consider this Release Agreement; and\n(d)\nEmployee acknowledges he has been advised by Employer that he is entitled to revoke (in the event he\nexecutes this Release Agreement) his waiver of rights or claims arising under the ADEA within seven (7) days after executing this\nRelease Agreement and that said waiver will not and does not become effective or enforceable until the seven (7) day revocation\nperiod has expired; and\n(e)\nThe parties agree that should Employee exercise his right to revoke the waiver under subpart (d) of this\nSection 3, this entire Release Agreement and Letter Agreement, and their obligations, are null and void and of no effect and,\nnotwithstanding any other provision of this Release Agreement or the Letter Agreement to the contrary, no severance pay or other\nconsideration shall be due, owing, paid or provided until the seven (7) day revocation period has expired without revocation by\nEmployee. Notice of Employee’s decision to revoke the waiver may be sent to Emerson’s General Counsel by fax (at 314-553-\n3025), email (to frank.steeves@emerson.com) or hand-delivery.\n1.\nRemedies. Without limiting the remedies available to Employer for any breach of this Release Agreement,\nEmployee agrees that any breach of either this Release Agreement or the Letter Agreement will result in immediate forfeiture of any\nfuture payments to be made to, or benefits to be provided to, Employee and all other remedies and relief as specifically set forth\nfurther in the Letter Agreement shall be available to Employer.\n2.\nSuccessors and Assigns. This Release Agreement binds, and inures to the benefit of, the parties’ respective\nheirs, administrators, representatives, executors, successors, and assigns.\n3.\nReview by Employee. Employee acknowledges that he has read the provisions of this Release Agreement, that\nEmployee was advised of his right to review this Release Agreement with an attorney at his expense, and that Employee fully\nunderstands the meaning and intent of this Release Agreement and agrees to all of its terms.\nEMPLOYEE\n/s/ Craig W. Ashmore\nCraig W. Ashmore\nDate:\n11/10/13\nExhibit B - OFFICER RESIGNATION FORM\nI, Craig W. Ashmore, do hereby submit my resignation, effective November 11, 2013, from my position as Executive Vice President\n- Planning and Development and as an Advisory Director of Emerson Electric Co., as well as from any other positions I may hold\nwith any subsidiaries or affiliates of Emerson.\n/s/ Craig W. Ashmore\n11/10/2013\nCraig W. Ashmore\nDate
+1aed5c5a68d56197c9c1756396fd2c0d.pdf	effective_date jurisdiction party term	EX-10.16 4 dex1016.htm COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.16\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\nCharles D. Denson (EMPLOYEE)\nand\nNIKE, Inc., and its parent, divisions,\nsubsidiaries and affiliates. (NIKE):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon the EMPLOYEE’s advancement to the position of\nPresident of the NIKE brand and is a condition of such advancement.\nB. Over the course of EMPLOYEE’s employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to develop\nconfidential information peculiar to NIKE’s business and not generally known to the public as defined below (“Protected Information”). It is\nanticipated that EMPLOYEE will continue to be exposed to Protected Information of greater sensitivity as EMPLOYEE advances in the company.\nC. The nature of NIKE’s business is highly competitive and disclosure of any Protected Information would result in severe damage to NIKE\nand be difficult to measure.\nD. NIKE makes use of its Protective Information throughout the world. Protective Information of NIKE can be used to NIKE’s detriment\nanywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete.\n(a) Competition Restriction. During EMPLOYEE’s employment by NIKE, under the terms of any employment contract or otherwise,\nand for twelve (12) months thereafter, (the “Restriction Period”), EMPLOYEE will not directly or indirectly, own, manage, control, or\nparticipate in the ownership, management or control of, or be employed by, consult for, or be connected in any manner with, any business\nengaged anywhere in the world in the athletic footwear, athletic apparel or sports equipment and accessories business, or any other business\nwhich directly competes with NIKE or any of its parent, subsidiaries or affiliated corporations (“Competitor”). By way of illustration only,\nexamples of NIKE competitors include, but are not limited to: Adidas, FILA, Reebok, Puma, Champion, Oakley, DKNY, Converse, Asics,\nSaucony, New Balance, Ralph Lauren/Polo Sport, B.U .M, FUBU, The Gap, Tommy Hilfiger, Umbro, Northface, Venator (Footlockers), Sports\nAuthority, Columbia Sportswear, Wilson, Mizuno, Callaway Golf and Titleist. This provision is subject to NIKE’s option to waive all or any\nportion of the Restriction Period as more specifically provided below.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall automatically\ntoll from the date of the first breach, and all subsequent\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 1\nbreaches, until the resolution of the breach though private settlement, judicial or other action, including all appeals. The Restriction Period\nshall continue upon the effective date of any such settlement judicial or other resolution. NIKE shall not be obligated to pay EMPLOYEE the\nadditional compensation described in paragraph 1(d) below during any period of time in which this Agreement is tolled due to EMPLOYEE’s\nbreach. In the event EMPLOYEE receives such additional compensation after any such breach, EMPLOYEE must immediately reimburse\nNIKE in the amount of all such compensation upon the receipt of a written request by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the Restriction Period or\nto limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a portion of the\nRestriction Period is waived, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to compete\nhas been waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above, should NIKE terminate\nEMPLOYEE’s employment and the Covenant Not To Compete is enforced, NIKE shall pay EMPLOYEE a monthly payment equal to one-\ntwelfth (1/12) of EMPLOYEE’s then current Annual Nike Income (defined herein to mean base salary and annual Performance Sharing Plan\nbonus calculated at 100% of EMPLOYEE’s targeted rate) while the Restriction Period is in effect. If EMPLOYEE voluntarily terminates\nemployment and the Covenant Not To Compete is enforced, NIKE shall pay EMPLOYEE a monthly severance payment equal to one-twenty-\nfourth (1/24) of EMPLOYEE’s last monthly Annual Nike Income while the Restriction Period is in effect.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE’s new\nemployer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period, wherever\nlocated and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure Agreement.\n(a) Protectable Information Defined. “Protected Information” shall mean all proprietary information, in whatever form and format,\nof NIKE and all information provided to NIKE by third parties which NIKE is obligated to keep confidential. EMPLOYEE agrees that any and\nall information to which EMPLOYEE has access concerning NIKE projects and internal NIKE information is Protected Information, whether\nin verbal form, machine-readable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting\nthe foregoing, Protected Information includes information relating to NIKE’s research and development activities, its intellectual property and\nthe filing or pendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor\nlists, contract factory lists, pricing information, manufacturing plans, business and marketing plans, sales information, methods of operation,\nmanufacturing processes and methods, products, and personnel information.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information that is or becomes part\nof the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, employees shall be permitted to retain as part of\ntheir personal portfolio copies of the employees’ original artwork and designs, provided the artwork or designs have become part of the public\ndomain. In any dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be\nby clear and convincing evidence.\n(c) Employee’s Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter, EMPLOYEE\nwill hold in confidence and protect all Protected Information\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 2\nand will not, at any time, directly or indirectly, use any Protected Information for any purpose outside the scope of EMPLOYEE’s employment\nwith NIKE or disclose any Protected Information to any third person or organization without the prior written consent of NIKE. Specifically,\nbut not by way of limitation, EMPLOYEE will not ever copy, transmit, reproduce, summarize, quote, publish or make any commercial or other\nuse whatsoever of any Protected Information without the prior written consent of NIKE. EMPLOYEE will also take reasonable security\nprecautions and such other actions as may be necessary to insure that there is no use or disclosure, intentional or inadvertent, of Protected\nInformation in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at anytime, and in any event, upon termination of employment, EMPLOYEE\nshall immediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other similar repositories of\nor containing Protected Information, and all copies thereof, then in EMPLOYEE’s possession or under EMPLOYEE’s control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if\nEMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person employed or not\nemployed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such\nincident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information. NIKE\nshall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by operation of any\npayment under Paragraph 1(d) of this Agreement.\n6. Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE will not directly or\nindirectly, solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or business organization, any\nNIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not such employment is pursuant to a\nwritten agreement or is at will.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement, NIKE shall be entitled to an\naccounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly has realized\nand/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid by NIKE\npursuant to Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to\nwhich NIKE may be entitled at law or in equity.\n8. General Provisions.\n(a) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE’s employment, regardless of the reason for\ntermination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will be effective unless\nexecuted in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts specifically referred to\ntherein.\n(c) Severability. Each provision herein will be treated as a separate and independent clause and unenforceability of any one clause\nwill in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable or\ninvalid by a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that\njurisdiction.\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 3\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE’s employment hereunder, shall be construed according to the\nlaws of the State of Oregon. EMPLOYEE further hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and venue\nfor any action or proceeding arising out of or relating to this Agreement shall lie in the state and federal courts located in Oregon.\nEMPLOYEE\nNIKE, Inc.\nBy:\n/s/ CHARLES D. DENSON\nBy: /s/ PHILIP H. KNIGHT\nName: Charles D. Denson\nTitle: President, NIKE Brand\nName: Philip H. Knight\nTitle: President & CEO\nDATE: 3.26.01\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 4	EX-10.16 4 dex1016.htm COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.16\nCOVENANT NOT TO COMPETE\nAND NON-DISCIL.OSURE AGREEMENT\nPARTIES:\nCharles D. Denson (EMPLOYEE)\nand\nNIKE, Inc., and its parent, divisions,\nsubsidiaries and affiliates. (NIKE):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon the EMPLOYEE’s advancement to the position of\nPresident of the NIKE brand and is a condition of such advancement.\nB. Over the course of EMPLOYEE’s employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to develop\nconfidential information peculiar to NIKE’s business and not generally known to the public as defined below (“Protected Information™). It is\nanticipated that EMPLOYEE will continue to be exposed to Protected Information of greater sensitivity as EMPLOYEE advances in the company.\nC. The nature of NIKE’s business is highly competitive and disclosure of any Protected Information would result in severe damage to NIKE\nand be difficult to measure.\nD. NIKE makes use of its Protective Information throughout the world. Protective Information of NIKE can be used to NIKE’s detriment\nanywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete.\n() Competition Restriction. During EMPLOYEE’s employment by NIKE, under the terms of any employment contract or otherwise,\nand for twelve (12) months thereafter, (the “Restriction Period”), EMPLOYEE will not directly or indirectly, own, manage, control, or\nparticipate in the ownership, management or control of, or be employed by, consult for, or be connected in any manner with, any business\nengaged anywhere in the world in the athletic footwear, athletic apparel or sports equipment and accessories business, or any other business\nwhich directly competes with NIKE or any of its parent, subsidiaries or affiliated corporations (“Competitor”). By way of illustration only,\nexamples of NIKE competitors include, but are not limited to: Adidas, FILA, Reebok, Puma, Champion, Oakley, DKNY, Converse, Asics,\nSaucony, New Balance, Ralph Lauren/Polo Sport, B.U.M, FUBU, The Gap, Tommy Hilfiger, Umbro, Northface, Venator (Footlockers), Sports\nAuthority, Columbia Sportswear, Wilson, Mizuno, Callaway Golf and Titleist. This provision is subject to NIKE’s option to waive all or any\nportion of the Restriction Period as more specifically provided below.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall automatically\ntoll from the date of the first breach, and all subsequent\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 1\nbreaches, until the resolution of the breach though private settlement, judicial or other action, including all appeals. The Restriction Period\nshall continue upon the effective date of any such settlement judicial or other resolution. NIKE shall not be obligated to pay EMPLOYEE the\nadditional compensation described in paragraph 1(d) below during any period of time in which this Agreement is tolled due to EMPLOYEE’s\nbreach. In the event EMPLOYEE receives such additional compensation after any such breach, EMPLOYEE must immediately reimburse\nNIKE in the amount of all such compensation upon the receipt of a written request by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the Restriction Period or\nto limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a portion of the\nRestriction Period is waived, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to compete\nhas been waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above, should NIKE terminate\nEMPLOYEE’s employment and the Covenant Not To Compete is enforced, NIKE shall pay EMPLOYEE a monthly payment equal to one-\ntwelfth (1/12) of EMPLOYEE'’s then current Annual Nike Income (defined herein to mean base salary and annual Performance Sharing Plan\nbonus calculated at 100% of EMPLOYEE’s targeted rate) while the Restriction Period is in effect. If EMPLOYEE voluntarily terminates\nemployment and the Covenant Not To Compete is enforced, NIKE shall pay EMPLOYEE a monthly severance payment equal to one-twenty-\nfourth (1/24) of EMPLOYEE’s last monthly Annual Nike Income while the Restriction Period is in effect.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE’s new\nemployer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period, wherever\nlocated and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure Agreement.\n(a) Protectable Information Defined. “Protected Information” shall mean all proprietary information, in whatever form and format,\nof NIKE and all information provided to NIKE by third parties which NIKE is obligated to keep confidential. EMPLOYEE agrees that any and\nall information to which EMPLOYEE has access concerning NIKE projects and internal NIKE information is Protected Information, whether\nin verbal form, machine-readable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting\nthe foregoing, Protected Information includes information relating to NIKE’s research and development activities, its intellectual property and\nthe filing or pendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor\nlists, contract factory lists, pricing information, manufacturing plans, business and marketing plans, sales information, methods of operation,\nmanufacturing processes and methods, products, and personnel information.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information that is or becomes part\nof the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, employees shall be permitted to retain as part of\ntheir personal portfolio copies of the employees’ original artwork and designs, provided the artwork or designs have become part of the public\ndomain. In any dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be\nby clear and convincing evidence.\n(c) Employee’s Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter, EMPLOYEE\nwill hold in confidence and protect all Protected Information\n \nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 2\nand will not, at any time, directly or indirectly, use any Protected Information for any purpose outside the scope of EMPLOYEE’s employment\nwith NIKE or disclose any Protected Information to any third person or organization without the prior written consent of NIKE. Specifically,\nbut not by way of limitation, EMPLOYEE will not ever copy, transmit, reproduce, summarize, quote, publish or make any commercial or other\nuse whatsoever of any Protected Information without the prior written consent of NIKE. EMPLOYEE will also take reasonable security\nprecautions and such other actions as may be necessary to insure that there is no use or disclosure, intentional or inadvertent, of Protected\nInformation in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at anytime, and in any event, upon termination of employment, EMPLOYEE\nshall immediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other similar repositories of\nor containing Protected Information, and all copies thereof, then in EMPLOYEE’s possession or under EMPLOYEE’s control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if\nEMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person employed or not\nemployed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such\nincident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information. NIKE\nshall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by operation of any\npayment under Paragraph 1(d) of this Agreement.\n6. Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE will not directly or\nindirectly, solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or business organization, any\nNIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not such employment is pursuant to a\nwritten agreement or is at will.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement, NIKE shall be entitled to an\naccounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly has realized\nand/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid by NIKE\npursuant to Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to\nwhich NIKE may be entitled at law or in equity.\n8. General Provisions.\n(@) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE’s employment, regardless of the reason for\ntermination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will be effective unless\nexecuted in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts specifically referred to\ntherein.\n(c) Severability. Each provision herein will be treated as a separate and independent clause and unenforceability of any one clause\nwill in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable or\ninvalid by a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that\njurisdiction.\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 3\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE’s employment hereunder, shall be construed according to the\nlaws of the State of Oregon. EMPLOYEE further hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and venue\nfor any action or proceeding arising out of or relating to this Agreement shall lie in the state and federal courts located in Oregon.\nEMPLOYEE NIKE, Inc.\nBy: /s/  CHARLES D. DENSON By: /s/ PHILIP H. KNIGHT\nName: Charles D. Denson Name: Philip H. Knight\nTitle: President, NIKE Brand Title: President & CEO\nDATE: 3.26.01\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 4	EX-10.16 4 lex1016.htm COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.16\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\nCharles D. Denson (EMPLOYEE)\nand\nNIKE, Inc., and its parent, divisions,\nsubsidiaries and affiliates. (NIKE):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon the EMPLOYEE'S advancement to the position of\nPresident of the NIKE brand and is a condition of such advancement.\nB. Over the course of EMPLOYEE'S employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to develop\nconfidential information peculiar to NIKE's business and not generally known to the public as defined below ("Protected Information"). It is\nanticipated that EMPLOYEE will continue to be exposed to Protected Information of greater sensitivity as EMPLOYEE advances in the company\nC. The nature of NIKE's business is highly competitive and disclosure of any Protected Information would result in severe damage to NIKE\nand be difficult to measure.\nD. NIKE makes use of its Protective Information throughout the world. Protective Information of NIKE can be used to NIKE's detriment\nanywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete.\n(a) Competition Restriction. During EMPLOYEE'S employment by NIKE, under the terms of any employment contract or otherwise,\nand for twelve (12) months thereafter, (the "Restriction Period"), EMPLOYEE will not directly or indirectly, own, manage, control, or\nparticipate in the ownership, management or control of, or be employed by, consult for, or be connected in any manner with, any business\nengaged anywhere in the world in the athletic footwear, athletic apparel or sports equipment and accessories business, or any other business\nwhich directly competes with NIKE or any of its parent, subsidiaries or affiliated corporations ("Competitor"). By way of illustration only,\nexamples of NIKE competitors include, but are not limited to: Adidas, FILA, Reebok, Puma, Champion, Oakley, DKNY, Converse, Asics,\nSaucony, New Balance, Ralph Lauren/Polo Sport, B.U.M, FUBU, The Gap, Tommy Hilfiger, Umbro, Northface, Venator (Footlockers), Sports\nAuthority, Columbia Sportswear, Wilson, Mizuno, Callaway Golf and Titleist. This provision is subject to NIKE's option to waive all or any\nportion of the Restriction Period as more specifically provided below.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall automatically\ntoll from the date of the first breach, and all subsequent\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT Page 1\nbreaches, until the resolution of the breach though private settlement, judicial or other action, including all appeals. The Restriction Period\nshall continue upon the effective date of any such settlement judicial or other resolution. NIKE shall not be obligated to pay EMPLOYEE the\nadditional compensation described in paragraph 1(d) below during any period of time in which this Agreement is tolled due to EMPLOYEE'S\nbreach. In the event EMPLOYEE receives such additional compensation after any such breach, EMPLOYEE must immediately reimburse\nNIKE in the amount of all such compensation upon the receipt of a written request by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the Restriction Period or\nto limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a portion of the\nRestriction Period is waived, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to compete\nhas been waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above, should NIKE terminate\nEMPLOYEE's employment and the Covenant Not To Compete is enforced, NIKE shall pay EMPLOYEE a monthly payment equal to one-\ntwelfth (1/12) of EMPLOYEE'S then current Annual Nike Income (defined herein to mean base salary and annual Performance Sharing Plan\nbonus calculated at 100% of EMPLOYEE'S targeted rate) while the Restriction Period is in effect. If EMPLOYEE voluntarily terminates\nemployment and the Covenant Not To Compete is enforced, NIKE shall pay EMPLOYEE a monthly severance payment equal to one-twenty-\nfourth (1/24) of EMPLOYEE'S last monthly Annual Nike Income while the Restriction Period is in effect.\n2.\nSubsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE'S new\nemployer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period, wherever\nlocated and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure Agreement\n(a) Protectable Information Defined. "Protected Information" shall mean all proprietary information, in whatever form and format,\nof NIKE and all information provided to NIKE by third parties which NIKE is obligated to keep confidential. EMPLOYEE agrees that any and\nall information to which EMPLOYEE has access concerning NIKE projects and internal NIKE information is Protected Information whether\nin verbal form, machine-readable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting\nthe foregoing, Protected Information includes information relating to NIKE's research and development activities, its intellectual property and\nthe filing or pendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor\nlists, contract factory lists, pricing information, manufacturing plans, business and marketing plans, sales information, methods of operation,\nmanufacturing processes and methods, products, and personnel information.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information that is or becomes part\nof the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, employees shall be permitted to retain as part of\ntheir personal portfolio copies of the employees' original artwork and designs, provided the artwork or designs have become part of the public\ndomain. In any dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be\nby clear and convincing evidence.\n(c) Employee's Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter, EMPLOYEE\nwill hold in confidence and protect all Protected Information\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT Page 2\nand will not, at any time, directly or indirectly, use any Protected Information for any purpose outside the scope of EMPLOYEE'S employment\nwith NIKE or disclose any Protected Information to any third person or organization without the prior written consent of NIKE. Specifically,\nbut not by way of limitation, EMPLOYEE will not ever copy, transmit, reproduce, summarize, quote, publish or make any commercial or other\nuse whatsoever of any Protected Information without the prior written consent of NIKE. EMPLOYEE will also take reasonable security\nprecautions and such other actions as may be necessary to insure that there is no use or disclosure, intentional or inadvertent, of Protected\nInformation in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at anytime, and in any event, upon termination of employment, EMPLOYEE\nshall immediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other similar repositories of\nor containing Protected Information, and all copies thereof, then in EMPLOYEE'S possession or under EMPLOYEE'S control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if\nEMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person employed or not\nemployed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such\nincident\nand will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information. NIKE\nshall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by operation of any\npayment under Paragraph 1(d) of this Agreement.\n6. Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE will not directly or\nindirectly, solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or business organization, any\nNIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not such employment is pursuant to a\nwritten agreement or is at will.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement, NIKE shall be entitled to an\naccounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly has realized\nand/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid by NIKE\npursuant to Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to\nwhich NIKE may be entitled at law or in equity.\n8. General Provisions.\n(a) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE'S employment, regardless of the reason for\ntermination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will be effective unless\nexecuted in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts specifically referred to\ntherein.\n(c) Severability.. Each provision herein will be treated as a separate and independent clause and unenforceability of any one clause\nwill in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable\nor\ninvalid by a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that\njurisdiction.\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT Page 3\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE'S employment hereunder, shall be construed according to the\nlaws of the State of Oregon. EMPLOYEE further hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and venue\nfor any action or proceeding arising out of or relating to this Agreement shall lie in the state and federal courts located in Oregon.\nEMPLOYEE\nNIKE, Inc.\nBy:\n/s/ CHARLES D. DENSON\nBy: /s/ PHILIP H. KNIGHT\nName: Charles D. Denson\nName: Philip H. Knight\nTitle: President, NIKE Brand\nTitle: President & CEO\nDATE: 3.26.01\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 4	EX-10.16 4 dex1016.htm COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.16\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\nCharles D. Denson (EMPLOYEE)\nand\nNIKE, Inc., and its parent, divisions,\nsubsidiaries and affiliates. (NIKE):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon the EMPLOYEE’s advancement to the position of\nPresident of the NIKE brand and is a condition of such advancement.\nB. Over the course of EMPLOYEE’s employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to develop\nconfidential information peculiar to NIKE’s business and not generally known to the public as defined below (“Protected Information”). It is\nanticipated that EMPLOYEE will continue to be exposed to Protected Information of greater sensitivity as EMPLOYEE advances in the company.\nC. The nature of NIKE’s business is highly competitive and disclosure of any Protected Information would result in severe damage to NIKE\nand be difficult to measure.\nD. NIKE makes use of its Protective Information throughout the world. Protective Information of NIKE can be used to NIKE’s detriment\nanywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete.\n(a) Competition Restriction. During EMPLOYEE’s employment by NIKE, under the terms of any employment contract or otherwise,\nand for twelve (12) months thereafter, (the “Restriction Period”), EMPLOYEE will not directly or indirectly, own, manage, control, or\nparticipate in the ownership, management or control of, or be employed by, consult for, or be connected in any manner with, any business\nengaged anywhere in the world in the athletic footwear, athletic apparel or sports equipment and accessories business, or any other business\nwhich directly competes with NIKE or any of its parent, subsidiaries or affiliated corporations (“Competitor”). By way of illustration only,\nexamples of NIKE competitors include, but are not limited to: Adidas, FILA, Reebok, Puma, Champion, Oakley, DKNY, Converse, Asics,\nSaucony, New Balance, Ralph Lauren/Polo Sport, B.U .M, FUBU, The Gap, Tommy Hilfiger, Umbro, Northface, Venator (Footlockers), Sports\nAuthority, Columbia Sportswear, Wilson, Mizuno, Callaway Golf and Titleist. This provision is subject to NIKE’s option to waive all or any\nportion of the Restriction Period as more specifically provided below.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall automatically\ntoll from the date of the first breach, and all subsequent\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 1\nbreaches, until the resolution of the breach though private settlement, judicial or other action, including all appeals. The Restriction Period\nshall continue upon the effective date of any such settlement judicial or other resolution. NIKE shall not be obligated to pay EMPLOYEE the\nadditional compensation described in paragraph 1(d) below during any period of time in which this Agreement is tolled due to EMPLOYEE’s\nbreach. In the event EMPLOYEE receives such additional compensation after any such breach, EMPLOYEE must immediately reimburse\nNIKE in the amount of all such compensation upon the receipt of a written request by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the Restriction Period or\nto limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a portion of the\nRestriction Period is waived, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to compete\nhas been waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above, should NIKE terminate\nEMPLOYEE’s employment and the Covenant Not To Compete is enforced, NIKE shall pay EMPLOYEE a monthly payment equal to one-\ntwelfth (1/12) of EMPLOYEE’s then current Annual Nike Income (defined herein to mean base salary and annual Performance Sharing Plan\nbonus calculated at 100% of EMPLOYEE’s targeted rate) while the Restriction Period is in effect. If EMPLOYEE voluntarily terminates\nemployment and the Covenant Not To Compete is enforced, NIKE shall pay EMPLOYEE a monthly severance payment equal to one-twenty-\nfourth (1/24) of EMPLOYEE’s last monthly Annual Nike Income while the Restriction Period is in effect.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE’s new\nemployer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period, wherever\nlocated and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure Agreement.\n(a) Protectable Information Defined. “Protected Information” shall mean all proprietary information, in whatever form and format,\nof NIKE and all information provided to NIKE by third parties which NIKE is obligated to keep confidential. EMPLOYEE agrees that any and\nall information to which EMPLOYEE has access concerning NIKE projects and internal NIKE information is Protected Information, whether\nin verbal form, machine-readable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting\nthe foregoing, Protected Information includes information relating to NIKE’s research and development activities, its intellectual property and\nthe filing or pendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor\nlists, contract factory lists, pricing information, manufacturing plans, business and marketing plans, sales information, methods of operation,\nmanufacturing processes and methods, products, and personnel information.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information that is or becomes part\nof the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, employees shall be permitted to retain as part of\ntheir personal portfolio copies of the employees’ original artwork and designs, provided the artwork or designs have become part of the public\ndomain. In any dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be\nby clear and convincing evidence.\n(c) Employee’s Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter, EMPLOYEE\nwill hold in confidence and protect all Protected Information\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 2\nand will not, at any time, directly or indirectly, use any Protected Information for any purpose outside the scope of EMPLOYEE’s employment\nwith NIKE or disclose any Protected Information to any third person or organization without the prior written consent of NIKE. Specifically,\nbut not by way of limitation, EMPLOYEE will not ever copy, transmit, reproduce, summarize, quote, publish or make any commercial or other\nuse whatsoever of any Protected Information without the prior written consent of NIKE. EMPLOYEE will also take reasonable security\nprecautions and such other actions as may be necessary to insure that there is no use or disclosure, intentional or inadvertent, of Protected\nInformation in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at anytime, and in any event, upon termination of employment, EMPLOYEE\nshall immediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other similar repositories of\nor containing Protected Information, and all copies thereof, then in EMPLOYEE’s possession or under EMPLOYEE’s control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if\nEMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person employed or not\nemployed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such\nincident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information. NIKE\nshall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by operation of any\npayment under Paragraph 1(d) of this Agreement.\n6. Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE will not directly or\nindirectly, solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or business organization, any\nNIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not such employment is pursuant to a\nwritten agreement or is at will.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement, NIKE shall be entitled to an\naccounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly has realized\nand/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid by NIKE\npursuant to Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or remedies to\nwhich NIKE may be entitled at law or in equity.\n8. General Provisions.\n(a) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE’s employment, regardless of the reason for\ntermination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will be effective unless\nexecuted in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts specifically referred to\ntherein.\n(c) Severability. Each provision herein will be treated as a separate and independent clause and unenforceability of any one clause\nwill in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable or\ninvalid by a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that\njurisdiction.\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 3\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE’s employment hereunder, shall be construed according to the\nlaws of the State of Oregon. EMPLOYEE further hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and venue\nfor any action or proceeding arising out of or relating to this Agreement shall lie in the state and federal courts located in Oregon.\nEMPLOYEE\nNIKE, Inc.\nBy:\n/s/ CHARLES D. DENSON\nBy: /s/ PHILIP H. KNIGHT\nName: Charles D. Denson\nTitle: President, NIKE Brand\nName: Philip H. Knight\nTitle: President & CEO\nDATE: 3.26.01\nCOVENANT NOT TO COMPETE AND\nNON-DISCLOSURE AGREEMENT - Page 4
+1b851a77e5a24dcf064e29959d49e583.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 13 d528890dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nBuckeye Technologies Inc.\n1001 Tillman Street\nMemphis, TN 38112\nJanuary 30, 2013\nGeorgia-Pacific LLC\n133 Peachtree Street, N.E .\nAtlanta, GA 30303\nAttention: David G. Park\nDear Mr. Park:\nGeorgia-Pacific LLC (“Buyer”) has requested certain non-public information regarding Buckeye Technologies Inc. (the “Company”) and its\nsubsidiaries (collectively, the “Companies”) in connection with a potential negotiated transaction (the “Transaction”) between Buyer and the\nCompany. As a condition to furnishing such information to Buyer, the Company and Buyer agree to the following provisions:\n1. Certain Definitions. As used in this letter agreement (this “ Agreement”):\n(a) “Affiliate” means, with respect to any Person, any other Person that is directly or indirectly Controlling, Controlled by or under\ncommon Control with such Person, where “Control” and derivative terms mean the possession, directly or indirectly, of the power to direct or cause\nthe direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.\n(b) “Evaluation Material” means any information or data concerning any of the Companies or any of their respective Affiliates, whether\nin oral, visual, written, electronic or other form, that is disclosed to Buyer or any of its Representatives before the date hereof, now or in the future by\nany of the Companies or any of their respective Representatives, together with all notes, memoranda, summaries, analyses, compilations and other\nwritings relating thereto that are prepared by Buyer or any of its Representatives to the extent that they use, contain, reflect or are derived from or\nincorporate any such information or data. Notwithstanding the foregoing, “Evaluation Material” does not include any information or data that: (i) is\nor was independently developed by Buyer or any of its Representatives without reference to the Evaluation Material; (ii) is or becomes available to\nthe public, other than as a result of disclosure by Buyer or any of its Representatives in breach of this Agreement; (iii) is or becomes available to\nBuyer or any of its Representatives on a non-confidential basis from a source other than any of the Companies or any of their respective\nRepresentatives, so long as Buyer or its Representatives, after reasonable inquiry, have no reason to believe that such source is bound by an\nobligation of confidentiality or secrecy to the Companies; or (iv) is in Buyer or its Representatives possession prior to the date of this Agreement.\n(c) “Person” means any natural person, business, corporation, company, association, limited liability company, partnership, limited\npartnership, limited liability partnership, joint venture, business enterprise, trust, governmental authority or other legal entity.\n(d) “Representatives” means, with respect to any Person, the Affiliates of such Person and any of such Person’s and its Affiliates\nrespective directors, employees, managing members, general partners, attorneys, accountants, investment bankers, financial advisors, consultants and\nother advisors, together with any actual or potential sources of debt financing for such Person or its Affiliates.\n2. Confidentiality, Use and Disclosure of Evaluation Material.\n(a) Confidentiality and Use of Evaluation Material. Buyer agrees that Buyer and its Representatives shall (i) use the Evaluation Material\nsolely for the purpose of evaluating, negotiating and consummating the Transaction; (ii) except as otherwise permitted by this Section 2 or\nSection 3(c), keep all Evaluation Material strictly confidential; and (iii) disclose Evaluation Material only to Representatives of Buyer to whom\ndisclosure is needed to facilitate Buyer’s evaluation, negotiation and/or consummation of the Transaction. Before Buyer or any of its Representatives\nprovides access to any Evaluation Material to any of its Representatives, Buyer agrees that it or one of its Representatives shall inform such\nRepresentative of the confidential nature of the Evaluation Material.\n(b) Discussion Disclosure. Except for such disclosure as is necessary not to be in violation of any applicable law, regulation, order or\nother similar requirement of any governmental, regulatory or supervisory authority or any applicable listing agreement (together, “Applicable Law”),\nBuyer and the Company each agrees that, without the prior written consent of the other party, neither it nor any of its Representatives shall: (i) make\nany disclosure to any other Person (other than such party’s Representatives to whom disclosure is needed to facilitate Buyer ’s evaluation, negotiation\nand/or consummation of the Transaction) of (A) the fact that investigations, discussions or negotiations are taking or have taken place concerning the\nTransaction, (B) the existence or contents of this Agreement, (C) the fact that Buyer and/or any of its Representatives have requested or received\nEvaluation Material, conducted due diligence or attended management meetings or site visits with any of the Companies or any of their respective\nRepresentatives or are otherwise considering the Transaction or (D) any of the terms, conditions or facts relating to the Transaction, including the\nstatus thereof; or (ii) make any public statement concerning the Transaction (any disclosure or statement described in clauses (i) or (ii) being\n“Discussions Disclosure”). Notwithstanding the foregoing, the Company may disclose to other potential buyers that it is considering, investigating,\ndiscussing or negotiating a Transaction and the terms and conditions thereof but may not disclose the involvement therein of Buyer or its\nRepresentatives or any other information identifying the involvement of Buyer or its Representatives.\n(c) Compulsory Disclosure. If Buyer or any of its Representatives is requested or required by interrogatories, requests for information\nfrom a governmental, regulatory or supervisory authority, subpoena or similar legal process to disclose any Evaluation Material or Discussions\nDisclosure, or Buyer believes that any Discussions Disclosure is required for Buyer or any of its Representatives not to be in violation of Applicable\nLaw, Buyer shall provide the Company with prompt prior written notice thereof, to the extent not prohibited by Applicable Law, so that the\nCompany may seek an appropriate protective order and/or, in the sole discretion of the Company, waive compliance by Buyer or its applicable\nRepresentatives with the applicable provisions of this Agreement. If, in the absence of such a protective order or waiver, Buyer or any of its\nRepresentatives is nonetheless legally compelled to disclose any Evaluation Material or Discussions Disclosure, then Buyer or such Representatives\nmay, without liability under this Agreement, disclose only such portion of the Evaluation Material or make only such Discussions Disclosure (as\napplicable) as is legally required to be disclosed; provided that Buyer agrees to use (and to cause its applicable Representatives to use) reasonable\nefforts to obtain assurances that any such disclosed Evaluation Material and Discussions Disclosure will be afforded confidential treatment and the\nCompany agrees to reimburse Buyer and any such Representatives for the reasonable and documented out-of-pocket expenses incurred in connection\nwith such efforts to have such Evaluation Material or Discussions Disclosure (as applicable) afforded confidential treatment. In the event that\nCompany determines to seek such protective order or other remedy, the Buyer and any such Representative of the Buyer will reasonably cooperate\nwith the Company (at the Company’s expense) in seeking such protective order or other remedy.\n2\n(d) Disclosure Permitted to Defend Dispute. Notwithstanding the foregoing provisions of this Section 2, Buyer or any of its\nRepresentatives may disclose Evaluation Material or Discussions Disclosure to the extent necessary to defend any litigation claim or cause of action\nbrought against Buyer or any of its Representatives by the Company relating to the Transaction; provided that Buyer agrees to use (and to cause its\napplicable Representatives to use) reasonable efforts to obtain assurances that any such disclosed Evaluation Material and Discussions Disclosure\nwill be afforded confidential treatment and the Company agrees to reimburse Buyer and any such Representatives for the reasonable and\ndocumented out-of-pocket expenses incurred in connection with such efforts to have such Evaluation Material or Discussions Disclosure (as\napplicable) afforded confidential treatment.\n3. Joint Bidding and Lock-ups.\n(a) Buyer hereby represents and warrants that Buyer is not acting as a broker for or Representative of any other Person (other than its\nAffiliates) in connection with the Transaction, and is considering the Transaction only for its own account and for the account of its Affiliates.\nExcept with the prior written consent of the Company, Buyer agrees that (i) it will not act as a joint bidder or co-bidder with any other Person with\nrespect to the Transaction, other than its Affiliates, and (ii) neither Buyer nor any of its Representatives (acting on behalf of Buyer or its Affiliates)\nwill enter into any discussions, negotiations, agreements, arrangements or understandings (whether written or oral) with any other Person regarding\nthe Transaction, other than the Company and its Representatives and Buyer’s Representatives (to the extent permitted hereunder).\n(b) Buyer hereby represents and warrants that neither it nor any of its Controlled Affiliates is party to any agreement, arrangement or\nunderstanding (whether written or oral) that would restrict the ability of any other Person to provide financing (debt, equity or otherwise) to any\nother Person specifically for the Transaction, and Buyer hereby agrees that (i) neither it nor any of its Controlled Affiliates will restrict the ability of\nany other Person to provide any such financing, and (ii) Buyer will direct its Affiliates (other than Controlled Affiliates) and Representatives not to\nrestrict the ability of any other Person to provide any such financing.\n(c) Notwithstanding anything to the contrary contained herein, without the prior written consent of the Company, Buyer agrees that\nneither Buyer nor any of its Representatives will disclose any Evaluation Material or make any Discussions Disclosure to any actual or potential\nsources of financing (debt, equity or otherwise), other than bona fide third party institutional lenders who provide or are or may be engaged to\nprovide debt financing to Buyer or its Affiliates.\n4. Securities Law Restrictions. Buyer acknowledges that: (a) the Evaluation Material and information that, if disclosed, would constitute\nDiscussions Disclosure may contain material non-public information concerning the Companies and their respective Affiliates; (b) Buyer is aware of\nthe restrictions imposed by U.S . federal and state securities laws, and the rules and regulations promulgated thereunder, on Persons in possession of\nmaterial non-public information; and (c) Buyer will not (and Buyer will instruct its Representatives to not), directly or indirectly, use or allow any\nother Person to use, any Evaluation Material or information that, if disclosed, would constitute Discussions Disclosure in contravention of any U.S .\nfederal or state securities laws. Nothing herein shall constitute an admission by either party that any Evaluation Material or other such information in\nfact contains material non-public information concerning the Companies or any of their respective Affiliates.\n3\n5. No Representations or Warranties. Buyer acknowledges and agrees that: (a) except as may be included in the Definitive Transaction\nAgreements, no representation or warranty, express or implied, is made by the Companies or any of their respective Representatives as to the\naccuracy or completeness of any of the Evaluation Material; and (b) Buyer shall be entitled to rely only on those representations and warranties that\nare expressly set forth in any definitive written agreements that is hereafter executed and delivered by both Buyer and the Company in connection\nwith the Transaction (“Definitive Transaction Agreements”). Except as may be expressly set forth in Definitive Transaction Agreements, none of the\nCompanies or any of their respective Representatives shall have any liability to Buyer or any of its Representatives on account of the use of any\nEvaluation Material by Buyer or any of its Representatives or any inaccuracy therein or omission therefrom. Unless and until Definitive Transaction\nAgreements are entered into, neither party nor any of its Representatives, by virtue of this Agreement or any other written or oral expression, will be\nunder any legal obligation of any kind whatsoever with respect to such a Transaction except for the matters specifically agreed to in this Agreement.\n6. Destruction or Erasure of Evaluation Material. Promptly after receipt of the Company’s written request, Buyer agrees that Buyer and its\nRepresentatives shall destroy or erase all Evaluation Material (including any Evaluation Material held electronically) in the possession or control of\nBuyer or any of its Representatives, and Buyer shall certify such destruction or erasure to the Company; provided that (i) neither Buyer nor any of its\nRepresentatives shall be required to destroy or erase any electronic copy of any Evaluation Material that is created pursuant to such Person’s\nstandard electronic backup and archival procedures if (x) personnel whose functions are not primarily information technology in nature do not have\naccess to such retained copies and (y) personnel whose functions are primarily information technology in nature have access to such copies only as\nreasonably necessary for the performance of their information technology duties (e.g., for purposes of system recovery) and (ii) Buyer and its\nRepresentatives may each retain one copy of any Evaluation Material to the extent required to defend or maintain any litigation relating to this\nAgreement or the Evaluation Material, or to comply with requirements of Applicable Law or established document retention policies. All such\nEvaluation Material retained in accordance with the foregoing proviso shall continue to be subject to Section 2 and Section 4.\n7. Communications Regarding the Transaction. Buyer agrees that all communications by it or any of its Representatives concerning the\nTransaction and its due diligence investigation (including requests for additional Evaluation Material, meetings with management and site visits)\nshall be directed solely to Steven G. Dean, Executive Vice President and Chief Financial Officer, except as may otherwise by approved in advance\nand in writing by the Company. Buyer agrees that, except with the prior written consent of the Company, neither Buyer nor any of its\nRepresentatives will contact or communicate with any of the directors, officers, employees, customers, suppliers, distributors, licensees, licensors,\nclients and other business relations of any of the Companies regarding the Companies or the Transaction, in each case except to the extent such\ncontacts and communications are (i) made in the ordinary course of business of Buyer or the applicable Representatives and are unrelated to the\nTransaction and the evaluation of the Transaction conducted by Buyer and its Representatives or (ii) approved in advance and in writing by the\nCompany.\n8. No Solicitation or Hiring. Buyer agrees that, except with the prior written consent of the Company, it will not, and it will not permit any of\nits Controlled Affiliates to, directly or indirectly, solicit for employment or hire any employees of the Companies with whom it initially comes into\ncontact in connection with the Transaction for a period of 18 months after the date of this Agreement; provided that this Section 8 shall not restrict\nBuyer or any of its Controlled Affiliates from\n4\n(i) making any general solicitation for employment that is not specifically directed at any such Persons, (ii) soliciting any such Person who has left\nthe employment of the Companies at least six months prior to such solicitation, (iii) hiring any Person that is referred by a third party agency through\na general search not targeted at employees of the Companies or (iv) hiring any Person who directly submits an application for employment to Buyer\nor any of its Controlled Affiliates without any solicitation effort by Buyer or any of its Controlled Affiliates that would be a violation of this\nSection 8.\n9. Standstill. Unless approved in advance in writing by the board of directors of the Company, Buyer agrees that neither Buyer nor any of its\nRepresentatives acting on behalf of or in concert with Buyer (or any of its Representatives) will, from the date hereof and for a period extending until\n18 months after the date on which the Company last provides Evaluation Material under this Agreement, directly or indirectly:\n(a) make any public announcement, proposal or offer with respect to (including, for the avoidance of doubt, indirectly by means of\ncommunication with the press or media) (i) any business combination, merger, tender offer, exchange offer or similar transaction involving any of\nthe Companies, (ii) any restructuring, recapitalization, liquidation or similar transaction involving any of the Companies, (iii) any acquisition of any\nof the Companies’ loans, debt securities, equity securities or assets, or rights or options to acquire interests in any of the Companies’ loans, debt\nsecurities, equity securities or assets, (iv) any proposal to seek representation on the board of directors of the Company or otherwise seek to control\nor influence the management, board of directors or policies of the Company, (v) any request or proposal to waive, terminate or amend the provisions\nof this Agreement or (vi) any proposal, arrangement or other statement that is inconsistent with the terms of this Agreement, including this\nSection 9(a);\n(b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are defined or used in\nRegulation 14A of the Securities Exchange Act of 1934, as amended) to vote, or seek to advise or influence any Person with respect to the voting of,\nany voting securities of the Company.\n(c) instigate, encourage or assist any third party (including forming a “group” (as defined in Section 13(d)(3) of the Securities Exchange\nAct of 1934, as amended) with any such third party) to do, or enter into any discussions or agreements with any third party with respect to, any of the\nactions set forth in clause (a) or (b) above;\n(d) take any action which would reasonably be expected to require the Company or any of its Affiliates to make a public announcement\nregarding any of the actions set forth in clause (a) or (b) above; or\n(e) acquire (or propose or agree to acquire), of record or beneficially, by purchase or otherwise, any loans, debt securities, equity\nsecurities or assets of any of the Companies or rights or options to acquire interests in any of the Companies’ loans, debt securities, equity securities\nor assets.\nAs of the date of this Agreement, neither the Buyer nor any of its Controlled Affiliates owns any loans, debt securities, equity securities or assets of\nany of the Companies or rights or options to acquire interests in any of the Companies’ loans, debt securities, voting securities or assets.\nThe foregoing restrictions shall not apply to any of Buyer’s Representatives effecting or recommending transactions in securities (A) in the ordinary\ncourse of its business as an investment advisor, broker,\n5\ndealer in securities, market maker, specialist or block positioner and (B) not at the direction or request of Buyer or any of its Affiliates. The\nCompany acknowledges that certain of the Buyer’s Affiliates are engaged in trading activities in which such Affiliates may effect transactions in the\nsecurities of the Companies or other entities in the ordinary course of business. The Company hereby agrees that nothing in this Section 9 shall\nprohibit or restrict acquisitions in the aggregate of not more than 5% of the voting securities of the Company by such Affiliates in the ordinary\ncourse of their trading activities provided they occur without the use of or access to the Evaluation Material.\n(f) Notwithstanding the foregoing provisions of this Section 9:\n(i) Buyer and its Representatives may exercise voting rights pursuant to its ownership of any securities of the Companies at any\nregular or special meeting at which such other holders of the same class of securities are entitled to vote;\n(ii) shall not restrict Buyer or any of its Representatives from making any proposal regarding a possible Transaction to\nmanagement of the Company and its advisors or directly to the board of directors of the Company on a confidential basis if such proposal does not\nrequire the Company to make a public announcement regarding this Agreement, a possible Transaction or any of the matters described in this\nSection 9; provided, however, that, from and after the date on which the Company shall have recommended, publicly proposed or publicly\nannounced an intention to authorize, recommend or propose, or shall have entered into an agreement with any Person (other than Buyer or its\nAffiliates) to effect or participate in a transaction of the type contemplated by clause (a) above, any such communications may be made to\nmanagement of the Company and its advisors or directly to the board of directors of the Company without regard to whether to Company would or\nmight be required to make a public announcement with respect thereto until such time as such Transaction closes or is terminated or abandoned by\nthe parties thereto; and\n(iii) Buyer and its Representatives may purchase goods or services of the Companies or submit proposals for the purchase or sale\nof goods or services to the Companies in the ordinary course of business.\n10. Remedies. Each party agrees that money damages may not be a sufficient remedy for a breach or a threatened breach of this Agreement\nand that each party shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach or\nthreatened breach, in addition to all other remedies available at law or in equity. Such injunctive or other equitable relief shall be available without\nthe obligation to prove any damages underlying such breach or threatened breach. Each party agrees that it will not petition or otherwise attempt to\nrequire the posting of a bond or other security in connection with any attempt by any other party to seek such injunctive or other equitable relief. No\nfailure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event of any legal\nproceedings relating to this Agreement, the reasonable costs and expenses incurred by the prevailing party and its Representatives in connection with\nsuch proceedings, including attorney fees and disbursements, shall be reimbursed by the non-prevailing party.\n11. No Waiver of Privilege. To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, none of the\nCompanies waives or is waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client\nprivileges or similar protections and privileges as a result of disclosing any Evaluation Material (including Evaluation Material related to pending or\nthreatened litigation) to Buyer or any of its Representatives.\n6\n12. Liability for Representatives. Buyer shall be liable for any breaches of this Agreement by any of its Representatives, except for breaches\ncommitted by any Representative that is party to either (a) a separate joinder agreement among such Representative, Buyer and the Company in the\nform set forth as Exhibit A hereto or (b) a separate mutually acceptable confidentiality agreement between such Representative and the Company\nwith respect to the Evaluation Material.\n13. Term. Except for Sections 6 (Destruction or Erasure of Evaluation Material) and 14(i) (Governing Law; Forum), which shall be binding in\nperpetuity or until the latest date permitted by Applicable Law, this Agreement shall expire upon the date that is two years after the date of this\nAgreement.\n14. Miscellaneous.\n(a) Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the matters set forth\nherein.\n(b) Data Site Provision. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed by\nany offering memorandum, web-based database or similar repository of Evaluation Material to which Buyer or any of its Representatives is granted\naccess in connection with the evaluation, negotiation or consummation of the Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that its confidentiality obligations with respect to the Evaluation Material are exclusively\ngoverned by this Agreement and may not be enlarged except by a written agreement that is hereafter executed by each of the parties hereto.\n(c) Competing Activities. Subject to Buyer’s compliance with its obligations with respect to the nondisclosure and use of the Evaluation\nMaterial, nothing in this Agreement shall prevent Buyer or any of its Representatives from evaluating a possible investment in and/or collaborating\nwith, or entering into any transaction with (including an investment in), or monitoring, managing, maintaining or otherwise acting with respect to an\ninvestment in, any Person whose business is similar to or competitive with the business of the Companies. The Company acknowledges that Buyer\nand its Representatives conduct business with many Persons, some of which may engage in or pursue businesses and strategies that are similar to or\ncompetitive with those of the Companies. Although Buyer is subject to the obligations set forth in this Agreement, the occurrence or existence of\nsuch similar or competitive activities shall not by itself be cause for any action or allegation by the Company that Buyer or any of its Representatives\nhas failed to observe any of the obligations set forth in this Agreement.\n(d) Ownership of Evaluation Material; No License. All Evaluation Material prepared by or on behalf of the Companies is and shall\nremain property of the applicable Companies. Buyer acknowledges and agrees that none of the Companies nor any of their respective\nRepresentatives grants any license or other property right or interest in, by implication or otherwise, any copyright, patent, trademark, mask work,\ndatabase or other intellectual or intangible property or proprietary information disclosed, embodied, fixed, comprised or contained in any Evaluation\nMaterial prepared by or on behalf of the Companies.\n7\n(e) Assignment; Successors. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by any party without\nthe prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and unenforceable. Any purchaser\nof the Company or all or substantially all of the assets of the Companies shall be entitled to the benefits of this Agreement, whether or not this\nAgreement is assigned to such purchaser.\n(f) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly signed\nand delivered by or on behalf of both Buyer and the Company.\n(g) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or\nenforceability of any other provision of this Agreement, unless the enforcement of such other provision in such circumstances would be inequitable.\n(h) No Obligation To Complete a Transaction. This Agreement is not intended to, and does not, constitute an agreement or impose any\nobligation on either party to (i) consummate a Transaction, (ii) conduct or continue discussions or negotiations concerning a Transaction, (iii) enter\ninto a joint venture or other business relationship of any kind or (iv) enter into or negotiate Definitive Transaction Agreements. Except with respect\nto the matters specifically set forth herein, neither party shall have any rights or obligations of any kind whatsoever with respect to a Transaction by\nvirtue of this Agreement or any other written or oral expression by the parties or their respective Representatives unless and until Definitive\nTransaction Agreements is executed and delivered. Buyer acknowledge that the Company reserves the right to (A) provide or not provide Evaluation\nMaterial to, and to request the destruction or erasure of Evaluation Material by, Buyer or any of its Representatives, (B) reject any proposals made by\nBuyer or any of its Representatives, (C) terminate discussions or negotiations with Buyer or any of its Representatives and (D) engage in discussions\nand/or negotiations, and to enter into any agreement, with any other Person, in each case in the Company’s sole discretion, without notice to Buyer\nor any of its Representatives, at any time and for any reason or no reason. Buyer shall not have any claim or cause of action against the Companies\nor any of their respective Representatives in respect of the foregoing, except as specifically set forth in any Definitive Transaction Agreement, if any,\nthat is hereafter executed.\n(i) Governing Law; Forum. This Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise\nout of or relate to this Agreement, or the negotiation, execution or performance of this Agreement shall be governed by, and construed in accordance\nwith, the laws of the State of Delaware. Each party consents and submits to the exclusive jurisdiction of the Delaware Court of Chancery, or in the\nevent that the Delaware Court of Chancery lacks jurisdiction, any other court of the State of Delaware for the adjudication of any action or legal\nproceeding relating to or arising out of this Agreement and the transactions contemplated hereby (and each party agrees not to commence any action\nor legal proceeding relating thereto except in any such court). Each party hereby irrevocably and unconditionally waives any objection which it may\nnow or hereafter have to the laying of venue in such courts and agrees not to plead or claim in any such court that any such action or legal\nproceeding brought in any such court has been brought in an inconvenient forum. Each party hereby agrees that service of any process, summons,\nnotice or document by U.S. registered mail addressed to such party shall be effective service of process for any such suit, action or proceeding\nbrought against such party in any such court. Each party hereto agrees that a final judgment in any such suit, action or proceeding brought in any\nsuch court shall be conclusive and binding upon such party and may be enforced in any other courts to whose jurisdiction such party is or may be\nsubject by suit upon such judgment.\n8\n(j) Waiver of Conflicts. Buyer hereby acknowledges that Dechert LLP (“Dechert”) represents the Company, and if for any reason\nDechert’s representation of the Company in negotiations with Buyer would create a conflict of interest, because of Dechert’s representation of Buyer\nin other unrelated matters or otherwise, Buyer hereby waives any such conflict and agrees that Dechert may represent the Company in connection\nwith the Transaction, including in any litigation that might result.\n(k) Counterparts. This Agreement may be signed in any number of counterparts (including by fax or PDF) with the same effect as if the\nsignatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. This\nAgreement shall become effective when, and only when, each party hereto shall have received a counterpart hereof signed by the other party hereto.\n9\nIf the foregoing correctly sets forth our agreement, please sign and return one copy of this Agreement to John B. Crowe, whereupon this Agreement\nshall constitute our binding agreement with respect to the matters set forth herein.\nVery truly yours,\nBUCKEYE TECHNOLOGIES INC.\nBy: /s/ John B. Crowe\nName: John B. Crowe\nTitle: Chairman of the Board and Chief Executive\nOfficer\nAccepted and agreed to\nas of the date first written above:\nGEORGIA-PACIFIC LLC\nBy: /s/ David G. Park\nName: David G. Park\nTitle: Senior Vice President – Strategy and\nBusiness Development\n10\nExhibit A\nJOINDER AGREEMENT\n[Date]\n[Name of Representative]\nBuckeye Technologies Inc.\n1001 Tillman Street\nMemphis, TN 38112\nAttention: John Crowe\nGeorgia-Pacific LLC\n133 Peachtree Street, N.E .\nAtlanta, GA 30303\nAttention: David G. Park\nLadies and Gentlemen:\nWe refer to the attached confidentiality agreement dated January 30, 2013 (the “Confidentiality Agreement”) between Georgia-Pacific LLC\n(“Buyer”) and Buckeye Technologies Inc. (the “Company”). Capitalized terms used below that are defined in the Confidentiality Agreement are\nused with the meanings given such terms in the Confidentiality Agreement.\nThe undersigned is a Representative of Buyer (“Buyer’s Representative”). Buyer’s Representative hereby agrees, for the benefit of Buyer and the\nCompany, to be bound on behalf of itself and its Representatives by the obligations with respect to Buyer’s Representatives contained in Sections 2,\n3, 6, and 7 of the Confidentiality Agreement (the “Obligations”) as if it were a party thereto.\nThe parties hereto acknowledge and agree that the signing of this agreement (this “Agreement”) does not obligate any Person to enter into the\nTransaction or to provide financing for the Transaction. Buyer acknowledges and agrees that Buyer ’s Representative shall not be restricted from\nbeing engaged or mandated by, or otherwise assisting or participating with, any other Person in any transaction that is similar to or competitive with\nthe Transaction, but Buyer’s Representative must comply with the Obligations as provided herein. Additionally, nothing herein or in the\nConfidentiality Agreement shall prohibit Buyer’s Representative from disclosing to any third party who contacts Buyer’s Representative to act as a\npotential financing source with respect to a transaction that is similar to or competitive with the Transaction, the fact that it is working with another\nPerson with respect to a transaction with the Company, so long as it keeps confidential the identity of Buyer and otherwise complies with the\nObligations.\nNo failure or delay by Buyer or the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof or preclude any\nother or further exercise thereof or the exercise of any other right, power or privilege hereunder.\nBuyer’s Representative agrees that money damages may not be a sufficient remedy for a breach or a threatened breach of this Agreement and that\nBuyer and the Company shall be entitled to seek specific\nperformance and injunctive or other equitable relief as a remedy for any such breach or threatened breach, in addition to all other remedies available\nat law or in equity. Such injunctive or other equitable relief shall be available without the obligation to prove any damages underlying such breach or\nthreatened breach. Each party agrees that it will not petition or otherwise attempt to require the posting of a bond or other security in connection with\nany attempt by any other party to seek such injunctive or other equitable relief.\nThis Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement, or\nthe negotiation, execution or performance of this Agreement shall be governed by, and construed in accordance with, the laws of the State of\nDelaware. Each party consents and submits to the exclusive jurisdiction of the Delaware Court of Chancery, or in the event that the Delaware Court\nof Chancery lacks jurisdiction, any other court of the State of Delaware for the adjudication of any action or legal proceeding relating to or arising\nout of this Agreement and the transactions contemplated hereby (and each party agrees not to commence any action or legal proceeding relating\nthereto except in any such court). Each party hereby irrevocably and unconditionally waives any objection which it may now or hereafter have to the\nlaying of venue in such courts and agrees not to plead or claim in any such court that any such action or legal proceeding brought in any such court\nhas been brought in an inconvenient forum. Each party hereby agrees that service of any process, summons, notice or document by U.S. registered\nmail addressed to such party shall be effective service of process for any such suit, action or proceeding brought against such party in any such court.\nEach party hereto agrees that a final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon\nsuch party and may be enforced in any other courts to whose jurisdiction such party is or may be subject by suit upon such judgment.\nThis Agreement may be signed in any number of counterparts (including by fax and PDF) with the same effect as if the signatures to each\ncounterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. This Agreement shall\nbecome effective when, and only when, each party hereto shall have received a counterpart hereof signed by the other parties hereto.\n[Signature page follows]\n2\nIf the foregoing correctly sets forth our agreement, please sign and return one copy of this Agreement to [CONTACT], whereupon this Agreement\nshall constitute our binding agreement with respect to the matters set forth herein.\nVery truly yours,\n[BUYER’S REPRESENTATIVE]\nBy:\nName:\nTitle:\nAccepted and agreed:\nGEORGIA-PACIFIC LLC\nBy:\nName:\nTitle:\nBUCKEYE TECHNOLOGIES INC.\nBy:\nName:\nTitle:\n3	EX-99.(D)(3) 13 d528890dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nBuckeye Technologies Inc.\n1001 Tillman Street\nMemphis, TN 38112\nJanuary 30, 2013\nGeorgia-Pacific LLC\n133 Peachtree Street, N.E.\nAtlanta, GA 30303\nAttention: David G. Park\nDear Mr. Park:\nGeorgia-Pacific LLC (“Buyer”) has requested certain non-public information regarding Buckeye Technologies Inc. (the “Company”) and its\nsubsidiaries (collectively, the “Companies”) in connection with a potential negotiated transaction (the “Transaction”) between Buyer and the\nCompany. As a condition to furnishing such information to Buyer, the Company and Buyer agree to the following provisions:\n1. Certain Definitions. As used in this letter agreement (this “Agreement”):\n(a) “Affiliate” means, with respect to any Person, any other Person that is directly or indirectly Controlling, Controlled by or under\ncommon Control with such Person, where “Control” and derivative terms mean the possession, directly or indirectly, of the power to direct or cause\nthe direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.\n(b) “Evaluation Material” means any information or data concerning any of the Companies or any of their respective Affiliates, whether\nin oral, visual, written, electronic or other form, that is disclosed to Buyer or any of its Representatives before the date hereof, now or in the future by\nany of the Companies or any of their respective Representatives, together with all notes, memoranda, summaries, analyses, compilations and other\nwritings relating thereto that are prepared by Buyer or any of its Representatives to the extent that they use, contain, reflect or are derived from or\nincorporate any such information or data. Notwithstanding the foregoing, “Evaluation Material” does not include any information or data that: (i) is\nor was independently developed by Buyer or any of its Representatives without reference to the Evaluation Material; (ii) is or becomes available to\nthe public, other than as a result of disclosure by Buyer or any of its Representatives in breach of this Agreement; (iii) is or becomes available to\nBuyer or any of its Representatives on a non-confidential basis from a source other than any of the Companies or any of their respective\nRepresentatives, so long as Buyer or its Representatives, after reasonable inquiry, have no reason to believe that such source is bound by an\nobligation of confidentiality or secrecy to the Companies; or (iv) is in Buyer or its Representatives possession prior to the date of this Agreement.\n(c) “Person” means any natural person, business, corporation, company, association, limited liability company, partnership, limited\npartnership, limited liability partnership, joint venture, business enterprise, trust, governmental authority or other legal entity.\n(d) “Representatives” means, with respect to any Person, the Affiliates of such Person and any of such Person’s and its Affiliates\nrespective directors, employees, managing members, general partners, attorneys, accountants, investment bankers, financial advisors, consultants and\nother advisors, together with any actual or potential sources of debt financing for such Person or its Affiliates.\n2. Confidentiality, Use and Disclosure of Evaluation Material.\n(a) Confidentiality and Use of Evaluation Material. Buyer agrees that Buyer and its Representatives shall (i) use the Evaluation Material\nsolely for the purpose of evaluating, negotiating and consummating the Transaction; (ii) except as otherwise permitted by this Section 2 or\nSection 3(c), keep all Evaluation Material strictly confidential; and (iii) disclose Evaluation Material only to Representatives of Buyer to whom\ndisclosure is needed to facilitate Buyer’s evaluation, negotiation and/or consummation of the Transaction. Before Buyer or any of its Representatives\nprovides access to any Evaluation Material to any of its Representatives, Buyer agrees that it or one of its Representatives shall inform such\nRepresentative of the confidential nature of the Evaluation Material.\n(b) Discussion Disclosure. Except for such disclosure as is necessary not to be in violation of any applicable law, regulation, order or\nother similar requirement of any governmental, regulatory or supervisory authority or any applicable listing agreement (together, “Applicable Law™),\nBuyer and the Company each agrees that, without the prior written consent of the other party, neither it nor any of its Representatives shall: (i) make\nany disclosure to any other Person (other than such party’s Representatives to whom disclosure is needed to facilitate Buyer’s evaluation, negotiation\nand/or consummation of the Transaction) of (A) the fact that investigations, discussions or negotiations are taking or have taken place concerning the\nTransaction, (B) the existence or contents of this Agreement, (C) the fact that Buyer and/or any of its Representatives have requested or received\nEvaluation Material, conducted due diligence or attended management meetings or site visits with any of the Companies or any of their respective\nRepresentatives or are otherwise considering the Transaction or (D) any of the terms, conditions or facts relating to the Transaction, including the\nstatus thereof; or (ii) make any public statement concerning the Transaction (any disclosure or statement described in clauses (i) or (ii) being\n“Discussions Disclosure”). Notwithstanding the foregoing, the Company may disclose to other potential buyers that it is considering, investigating,\ndiscussing or negotiating a Transaction and the terms and conditions thereof but may not disclose the involvement therein of Buyer or its\nRepresentatives or any other information identifying the involvement of Buyer or its Representatives.\n(c) Compulsory Disclosure. If Buyer or any of its Representatives is requested or required by interrogatories, requests for information\nfrom a governmental, regulatory or supervisory authority, subpoena or similar legal process to disclose any Evaluation Material or Discussions\nDisclosure, or Buyer believes that any Discussions Disclosure is required for Buyer or any of its Representatives not to be in violation of Applicable\nLaw, Buyer shall provide the Company with prompt prior written notice thereof, to the extent not prohibited by Applicable Law, so that the\nCompany may seek an appropriate protective order and/or, in the sole discretion of the Company, waive compliance by Buyer or its applicable\nRepresentatives with the applicable provisions of this Agreement. If, in the absence of such a protective order or waiver, Buyer or any of its\nRepresentatives is nonetheless legally compelled to disclose any Evaluation Material or Discussions Disclosure, then Buyer or such Representatives\nmay, without liability under this Agreement, disclose only such portion of the Evaluation Material or make only such Discussions Disclosure (as\napplicable) as is legally required to be disclosed; provided that Buyer agrees to use (and to cause its applicable Representatives to use) reasonable\nefforts to obtain assurances that any such disclosed Evaluation Material and Discussions Disclosure will be afforded confidential treatment and the\nCompany agrees to reimburse Buyer and any such Representatives for the reasonable and documented out-of-pocket expenses incurred in connection\nwith such efforts to have such Evaluation Material or Discussions Disclosure (as applicable) afforded confidential treatment. In the event that\nCompany determines to seek such protective order or other remedy, the Buyer and any such Representative of the Buyer will reasonably cooperate\nwith the Company (at the Company’s expense) in seeking such protective order or other remedy.\n2\n(d) Disclosure Permitted to Defend Dispute. Notwithstanding the foregoing provisions of this Section 2, Buyer or any of its\nRepresentatives may disclose Evaluation Material or Discussions Disclosure to the extent necessary to defend any litigation claim or cause of action\nbrought against Buyer or any of its Representatives by the Company relating to the Transaction; provided that Buyer agrees to use (and to cause its\napplicable Representatives to use) reasonable efforts to obtain assurances that any such disclosed Evaluation Material and Discussions Disclosure\nwill be afforded confidential treatment and the Company agrees to reimburse Buyer and any such Representatives for the reasonable and\ndocumented out-of-pocket expenses incurred in connection with such efforts to have such Evaluation Material or Discussions Disclosure (as\napplicable) afforded confidential treatment.\n3. Joint Bidding and Lock-ups.\n(a) Buyer hereby represents and warrants that Buyer is not acting as a broker for or Representative of any other Person (other than its\nAffiliates) in connection with the Transaction, and is considering the Transaction only for its own account and for the account of its Affiliates.\nExcept with the prior written consent of the Company, Buyer agrees that (i) it will not act as a joint bidder or co-bidder with any other Person with\nrespect to the Transaction, other than its Affiliates, and (ii) neither Buyer nor any of its Representatives (acting on behalf of Buyer or its Affiliates)\nwill enter into any discussions, negotiations, agreements, arrangements or understandings (whether written or oral) with any other Person regarding\nthe Transaction, other than the Company and its Representatives and Buyer’s Representatives (to the extent permitted hereunder).\n(b) Buyer hereby represents and warrants that neither it nor any of its Controlled Affiliates is party to any agreement, arrangement or\nunderstanding (whether written or oral) that would restrict the ability of any other Person to provide financing (debt, equity or otherwise) to any\nother Person specifically for the Transaction, and Buyer hereby agrees that (i) neither it nor any of its Controlled Affiliates will restrict the ability of\nany other Person to provide any such financing, and (ii) Buyer will direct its Affiliates (other than Controlled Affiliates) and Representatives not to\nrestrict the ability of any other Person to provide any such financing.\n(c) Notwithstanding anything to the contrary contained herein, without the prior written consent of the Company, Buyer agrees that\nneither Buyer nor any of its Representatives will disclose any Evaluation Material or make any Discussions Disclosure to any actual or potential\nsources of financing (debt, equity or otherwise), other than bona fide third party institutional lenders who provide or are or may be engaged to\nprovide debt financing to Buyer or its Affiliates.\n4. Securities Law Restrictions. Buyer acknowledges that: (a) the Evaluation Material and information that, if disclosed, would constitute\nDiscussions Disclosure may contain material non-public information concerning the Companies and their respective Affiliates; (b) Buyer is aware of\nthe restrictions imposed by U.S. federal and state securities laws, and the rules and regulations promulgated thereunder, on Persons in possession of\nmaterial non-public information; and (c) Buyer will not (and Buyer will instruct its Representatives to not), directly or indirectly, use or allow any\nother Person to use, any Evaluation Material or information that, if disclosed, would constitute Discussions Disclosure in contravention of any U.S.\nfederal or state securities laws. Nothing herein shall constitute an admission by either party that any Evaluation Material or other such information in\nfact contains material non-public information concerning the Companies or any of their respective Affiliates.\n3\n5. No Representations or Warranties. Buyer acknowledges and agrees that: (a) except as may be included in the Definitive Transaction\nAgreements, no representation or warranty, express or implied, is made by the Companies or any of their respective Representatives as to the\naccuracy or completeness of any of the Evaluation Material; and (b) Buyer shall be entitled to rely only on those representations and warranties that\nare expressly set forth in any definitive written agreements that is hereafter executed and delivered by both Buyer and the Company in connection\nwith the Transaction (“Definitive Transaction Agreements”). Except as may be expressly set forth in Definitive Transaction Agreements, none of the\nCompanies or any of their respective Representatives shall have any liability to Buyer or any of its Representatives on account of the use of any\nEvaluation Material by Buyer or any of its Representatives or any inaccuracy therein or omission therefrom. Unless and until Definitive Transaction\nAgreements are entered into, neither party nor any of its Representatives, by virtue of this Agreement or any other written or oral expression, will be\nunder any legal obligation of any kind whatsoever with respect to such a Transaction except for the matters specifically agreed to in this Agreement.\n6. Destruction or Erasure of Evaluation Material. Promptly after receipt of the Company’s written request, Buyer agrees that Buyer and its\nRepresentatives shall destroy or erase all Evaluation Material (including any Evaluation Material held electronically) in the possession or control of\nBuyer or any of its Representatives, and Buyer shall certify such destruction or erasure to the Company; provided that (i) neither Buyer nor any of its\nRepresentatives shall be required to destroy or erase any electronic copy of any Evaluation Material that is created pursuant to such Person’s\nstandard electronic backup and archival procedures if (x) personnel whose functions are not primarily information technology in nature do not have\naccess to such retained copies and (y) personnel whose functions are primarily information technology in nature have access to such copies only as\nreasonably necessary for the performance of their information technology duties (e.g., for purposes of system recovery) and (ii) Buyer and its\nRepresentatives may each retain one copy of any Evaluation Material to the extent required to defend or maintain any litigation relating to this\nAgreement or the Evaluation Material, or to comply with requirements of Applicable Law or established document retention policies. All such\nEvaluation Material retained in accordance with the foregoing proviso shall continue to be subject to Section 2 and Section 4.\n7. Communications Regarding the Transaction. Buyer agrees that all communications by it or any of its Representatives concerning the\nTransaction and its due diligence investigation (including requests for additional Evaluation Material, meetings with management and site visits)\nshall be directed solely to Steven G. Dean, Executive Vice President and Chief Financial Officer, except as may otherwise by approved in advance\nand in writing by the Company. Buyer agrees that, except with the prior written consent of the Company, neither Buyer nor any of its\nRepresentatives will contact or communicate with any of the directors, officers, employees, customers, suppliers, distributors, licensees, licensors,\nclients and other business relations of any of the Companies regarding the Companies or the Transaction, in each case except to the extent such\ncontacts and communications are (i) made in the ordinary course of business of Buyer or the applicable Representatives and are unrelated to the\nTransaction and the evaluation of the Transaction conducted by Buyer and its Representatives or (ii) approved in advance and in writing by the\nCompany.\n8. No Solicitation or Hiring. Buyer agrees that, except with the prior written consent of the Company, it will not, and it will not permit any of\nits Controlled Affiliates to, directly or indirectly, solicit for employment or hire any employees of the Companies with whom it initially comes into\ncontact in connection with the Transaction for a period of 18 months after the date of this Agreement; provided that this Section 8 shall not restrict\nBuyer or any of its Controlled Affiliates from\n(i) making any general solicitation for employment that is not specifically directed at any such Persons, (ii) soliciting any such Person who has left\nthe employment of the Companies at least six months prior to such solicitation, (iii) hiring any Person that is referred by a third party agency through\na general search not targeted at employees of the Companies or (iv) hiring any Person who directly submits an application for employment to Buyer\nor any of its Controlled Affiliates without any solicitation effort by Buyer or any of its Controlled Affiliates that would be a violation of this\nSection 8.\n9. Standstill. Unless approved in advance in writing by the board of directors of the Company, Buyer agrees that neither Buyer nor any of its\nRepresentatives acting on behalf of or in concert with Buyer (or any of its Representatives) will, from the date hereof and for a period extending until\n18 months after the date on which the Company last provides Evaluation Material under this Agreement, directly or indirectly:\n(a) make any public announcement, proposal or offer with respect to (including, for the avoidance of doubt, indirectly by means of\ncommunication with the press or media) (i) any business combination, merger, tender offer, exchange offer or similar transaction involving any of\nthe Companies, (ii) any restructuring, recapitalization, liquidation or similar transaction involving any of the Companies, (iii) any acquisition of any\nof the Companies’ loans, debt securities, equity securities or assets, or rights or options to acquire interests in any of the Companies’ loans, debt\nsecurities, equity securities or assets, (iv) any proposal to seek representation on the board of directors of the Company or otherwise seek to control\nor influence the management, board of directors or policies of the Company, (v) any request or proposal to waive, terminate or amend the provisions\nof this Agreement or (vi) any proposal, arrangement or other statement that is inconsistent with the terms of this Agreement, including this\nSection 9(a);\n(b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are defined or used in\nRegulation 14A of the Securities Exchange Act of 1934, as amended) to vote, or seek to advise or influence any Person with respect to the voting of,\nany voting securities of the Company.\n(c) instigate, encourage or assist any third party (including forming a “group” (as defined in Section 13(d)(3) of the Securities Exchange\nAct of 1934, as amended) with any such third party) to do, or enter into any discussions or agreements with any third party with respect to, any of the\nactions set forth in clause (a) or (b) above;\n(d) take any action which would reasonably be expected to require the Company or any of its Affiliates to make a public announcement\nregarding any of the actions set forth in clause (a) or (b) above; or\n(e) acquire (or propose or agree to acquire), of record or beneficially, by purchase or otherwise, any loans, debt securities, equity\nsecurities or assets of any of the Companies or rights or options to acquire interests in any of the Companies’ loans, debt securities, equity securities\nor assets.\nAs of the date of this Agreement, neither the Buyer nor any of its Controlled Affiliates owns any loans, debt securities, equity securities or assets of\nany of the Companies or rights or options to acquire interests in any of the Companies’ loans, debt securities, voting securities or assets.\nThe foregoing restrictions shall not apply to any of Buyer’s Representatives effecting or recommending transactions in securities (A) in the ordinary\ncourse of its business as an investment advisor, broker,\ndealer in securities, market maker, specialist or block positioner and (B) not at the direction or request of Buyer or any of its Affiliates. The\nCompany acknowledges that certain of the Buyer’s Affiliates are engaged in trading activities in which such Affiliates may effect transactions in the\nsecurities of the Companies or other entities in the ordinary course of business. The Company hereby agrees that nothing in this Section 9 shall\nprohibit or restrict acquisitions in the aggregate of not more than 5% of the voting securities of the Company by such Affiliates in the ordinary\ncourse of their trading activities provided they occur without the use of or access to the Evaluation Material.\n(f) Notwithstanding the foregoing provisions of this Section 9:\n(i) Buyer and its Representatives may exercise voting rights pursuant to its ownership of any securities of the Companies at any\nregular or special meeting at which such other holders of the same class of securities are entitled to vote;\n(ii) shall not restrict Buyer or any of its Representatives from making any proposal regarding a possible Transaction to\nmanagement of the Company and its advisors or directly to the board of directors of the Company on a confidential basis if such proposal does not\nrequire the Company to make a public announcement regarding this Agreement, a possible Transaction or any of the matters described in this\nSection 9; provided, however, that, from and after the date on which the Company shall have recommended, publicly proposed or publicly\nannounced an intention to authorize, recommend or propose, or shall have entered into an agreement with any Person (other than Buyer or its\nAffiliates) to effect or participate in a transaction of the type contemplated by clause (a) above, any such communications may be made to\nmanagement of the Company and its advisors or directly to the board of directors of the Company without regard to whether to Company would or\nmight be required to make a public announcement with respect thereto until such time as such Transaction closes or is terminated or abandoned by\nthe parties thereto; and\n(iii) Buyer and its Representatives may purchase goods or services of the Companies or submit proposals for the purchase or sale\nof goods or services to the Companies in the ordinary course of business.\n10. Remedies. Each party agrees that money damages may not be a sufficient remedy for a breach or a threatened breach of this Agreement\nand that each party shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach or\nthreatened breach, in addition to all other remedies available at law or in equity. Such injunctive or other equitable relief shall be available without\nthe obligation to prove any damages underlying such breach or threatened breach. Each party agrees that it will not petition or otherwise attempt to\nrequire the posting of a bond or other security in connection with any attempt by any other party to seek such injunctive or other equitable relief. No\nfailure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event of any legal\nproceedings relating to this Agreement, the reasonable costs and expenses incurred by the prevailing party and its Representatives in connection with\nsuch proceedings, including attorney fees and disbursements, shall be reimbursed by the non-prevailing party.\n11. No Waiver of Privilege. To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, none of the\nCompanies waives or is waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client\nprivileges or similar protections and privileges as a result of disclosing any Evaluation Material (including Evaluation Material related to pending or\nthreatened litigation) to Buyer or any of its Representatives.\n12. Liability for Representatives. Buyer shall be liable for any breaches of this Agreement by any of its Representatives, except for breaches\ncommitted by any Representative that is party to either (a) a separate joinder agreement among such Representative, Buyer and the Company in the\nform set forth as Exhibit A hereto or (b) a separate mutually acceptable confidentiality agreement between such Representative and the Company\nwith respect to the Evaluation Material.\n13. Term. Except for Sections 6 (Destruction or Erasure of Evaluation Material) and 14(i) (Governing Law; Forum), which shall be binding in\nperpetuity or until the latest date permitted by Applicable Law, this Agreement shall expire upon the date that is two years after the date of this\nAgreement.\n14. Miscellaneous.\n(a) Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the matters set forth\nherein.\n(b) Data Site Provision. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed by\nany offering memorandum, web-based database or similar repository of Evaluation Material to which Buyer or any of its Representatives is granted\naccess in connection with the evaluation, negotiation or consummation of the Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that its confidentiality obligations with respect to the Evaluation Material are exclusively\ngoverned by this Agreement and may not be enlarged except by a written agreement that is hereafter executed by each of the parties hereto.\n(c) Competing Activities. Subject to Buyer’s compliance with its obligations with respect to the nondisclosure and use of the Evaluation\nMaterial, nothing in this Agreement shall prevent Buyer or any of its Representatives from evaluating a possible investment in and/or collaborating\nwith, or entering into any transaction with (including an investment in), or monitoring, managing, maintaining or otherwise acting with respect to an\ninvestment in, any Person whose business is similar to or competitive with the business of the Companies. The Company acknowledges that Buyer\nand its Representatives conduct business with many Persons, some of which may engage in or pursue businesses and strategies that are similar to or\ncompetitive with those of the Companies. Although Buyer is subject to the obligations set forth in this Agreement, the occurrence or existence of\nsuch similar or competitive activities shall not by itself be cause for any action or allegation by the Company that Buyer or any of its Representatives\nhas failed to observe any of the obligations set forth in this Agreement.\n(d) Ownership of Evaluation Material; No License. All Evaluation Material prepared by or on behalf of the Companies is and shall\nremain property of the applicable Companies. Buyer acknowledges and agrees that none of the Companies nor any of their respective\nRepresentatives grants any license or other property right or interest in, by implication or otherwise, any copyright, patent, trademark, mask work,\ndatabase or other intellectual or intangible property or proprietary information disclosed, embodied, fixed, comprised or contained in any Evaluation\nMaterial prepared by or on behalf of the Companies.\n(e) Assignment; Successors. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by any party without\nthe prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and unenforceable. Any purchaser\nof the Company or all or substantially all of the assets of the Companies shall be entitled to the benefits of this Agreement, whether or not this\nAgreement is assigned to such purchaser.\n(f) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly signed\nand delivered by or on behalf of both Buyer and the Company.\n(g) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or\nenforceability of any other provision of this Agreement, unless the enforcement of such other provision in such circumstances would be inequitable.\n(h) No Obligation To Complete a Transaction. This Agreement is not intended to, and does not, constitute an agreement or impose any\nobligation on either party to (i) consummate a Transaction, (ii) conduct or continue discussions or negotiations concerning a Transaction, (iii) enter\ninto a joint venture or other business relationship of any kind or (iv) enter into or negotiate Definitive Transaction Agreements. Except with respect\nto the matters specifically set forth herein, neither party shall have any rights or obligations of any kind whatsoever with respect to a Transaction by\nvirtue of this Agreement or any other written or oral expression by the parties or their respective Representatives unless and until Definitive\nTransaction Agreements is executed and delivered. Buyer acknowledge that the Company reserves the right to (A) provide or not provide Evaluation\nMaterial to, and to request the destruction or erasure of Evaluation Material by, Buyer or any of its Representatives, (B) reject any proposals made by\nBuyer or any of its Representatives, (C) terminate discussions or negotiations with Buyer or any of its Representatives and (D) engage in discussions\nand/or negotiations, and to enter into any agreement, with any other Person, in each case in the Company’s sole discretion, without notice to Buyer\nor any of its Representatives, at any time and for any reason or no reason. Buyer shall not have any claim or cause of action against the Companies\nor any of their respective Representatives in respect of the foregoing, except as specifically set forth in any Definitive Transaction Agreement, if any,\nthat is hereafter executed.\n(i) Governing Law; Forum. This Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise\nout of or relate to this Agreement, or the negotiation, execution or performance of this Agreement shall be governed by, and construed in accordance\nwith, the laws of the State of Delaware. Each party consents and submits to the exclusive jurisdiction of the Delaware Court of Chancery, or in the\nevent that the Delaware Court of Chancery lacks jurisdiction, any other court of the State of Delaware for the adjudication of any action or legal\nproceeding relating to or arising out of this Agreement and the transactions contemplated hereby (and each party agrees not to commence any action\nor legal proceeding relating thereto except in any such court). Each party hereby irrevocably and unconditionally waives any objection which it may\nnow or hereafter have to the laying of venue in such courts and agrees not to plead or claim in any such court that any such action or legal\nproceeding brought in any such court has been brought in an inconvenient forum. Each party hereby agrees that service of any process, summons,\nnotice or document by U.S. registered mail addressed to such party shall be effective service of process for any such suit, action or proceeding\nbrought against such party in any such court. Each party hereto agrees that a final judgment in any such suit, action or proceeding brought in any\nsuch court shall be conclusive and binding upon such party and may be enforced in any other courts to whose jurisdiction such party is or may be\nsubject by suit upon such judgment.\n(j) Waiver of Conflicts. Buyer hereby acknowledges that Dechert LLP (“Dechert”) represents the Company, and if for any reason\nDechert’s representation of the Company in negotiations with Buyer would create a conflict of interest, because of Dechert’s representation of Buyer\nin other unrelated matters or otherwise, Buyer hereby waives any such conflict and agrees that Dechert may represent the Company in connection\nwith the Transaction, including in any litigation that might result.\n(k) Counterparts. This Agreement may be signed in any number of counterparts (including by fax or PDF) with the same effect as if the\nsignatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. This\nAgreement shall become effective when, and only when, each party hereto shall have received a counterpart hereof signed by the other party hereto.\n9\nIf the foregoing correctly sets forth our agreement, please sign and return one copy of this Agreement to John B. Crowe, whereupon this Agreement shall constitute our binding agreement with respect to the matters set forth herein. Accepted and agreed to\nas of the date first written above:\nGEORGIA-PACIFIC LLC\nBy: /s/ David G. Park\nName: David G. Park\nTitle:  Senior Vice President — Strategy and\nBusiness Development\n10\nVery truly yours,\nBUCKEYE TECHNOLOGIES INC.\nBy:  /s/John B. Crowe\nName: John B. Crowe\nTitle: Chairman of the Board and Chief Executive\nOfficer\nExhibit A\nJOINDER AGREEMENT\n[Date]\n[Name of Representative]\nBuckeye Technologies Inc.\n1001 Tillman Street\nMemphis, TN 38112\nAttention: John Crowe\nGeorgia-Pacific LLC\n133 Peachtree Street, N.E.\nAtlanta, GA 30303\nAttention: David G. Park\nLadies and Gentlemen:\n \nWe refer to the attached confidentiality agreement dated January 30, 2013 (the “Confidentiality Agreement”) between Georgia-Pacific LLC\n(“Buyer”) and Buckeye Technologies Inc. (the “Company”). Capitalized terms used below that are defined in the Confidentiality Agreement are\nused with the meanings given such terms in the Confidentiality Agreement.\nThe undersigned is a Representative of Buyer (“Buyer’s Representative”). Buyer’s Representative hereby agrees, for the benefit of Buyer and the\nCompany, to be bound on behalf of itself and its Representatives by the obligations with respect to Buyer’s Representatives contained in Sections 2,\n3, 6, and 7 of the Confidentiality Agreement (the “Obligations”) as if it were a party thereto.\n \n \nThe parties hereto acknowledge and agree that the signing of this agreement (this “Agreement”) does not obligate any Person to enter into the\nTransaction or to provide financing for the Transaction. Buyer acknowledges and agrees that Buyer’s Representative shall not be restricted from\nbeing engaged or mandated by, or otherwise assisting or participating with, any other Person in any transaction that is similar to or competitive with\nthe Transaction, but Buyer’s Representative must comply with the Obligations as provided herein. Additionally, nothing herein or in the\nConfidentiality Agreement shall prohibit Buyer’s Representative from disclosing to any third party who contacts Buyer’s Representative to act as a\npotential financing source with respect to a transaction that is similar to or competitive with the Transaction, the fact that it is working with another\nPerson with respect to a transaction with the Company, so long as it keeps confidential the identity of Buyer and otherwise complies with the\nObligations.\nNo failure or delay by Buyer or the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof or preclude any\nother or further exercise thereof or the exercise of any other right, power or privilege hereunder.\nBuyer’s Representative agrees that money damages may not be a sufficient remedy for a breach or a threatened breach of this Agreement and that\nBuyer and the Company shall be entitled to seek specific\nperformance and injunctive or other equitable relief as a remedy for any such breach or threatened breach, in addition to all other remedies available\nat law or in equity. Such injunctive or other equitable relief shall be available without the obligation to prove any damages underlying such breach or\nthreatened breach. Each party agrees that it will not petition or otherwise attempt to require the posting of a bond or other security in connection with\nany attempt by any other party to seek such injunctive or other equitable relief.\nThis Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement, or\nthe negotiation, execution or performance of this Agreement shall be governed by, and construed in accordance with, the laws of the State of\nDelaware. Each party consents and submits to the exclusive jurisdiction of the Delaware Court of Chancery, or in the event that the Delaware Court\nof Chancery lacks jurisdiction, any other court of the State of Delaware for the adjudication of any action or legal proceeding relating to or arising\nout of this Agreement and the transactions contemplated hereby (and each party agrees not to commence any action or legal proceeding relating\nthereto except in any such court). Each party hereby irrevocably and unconditionally waives any objection which it may now or hereafter have to the\nlaying of venue in such courts and agrees not to plead or claim in any such court that any such action or legal proceeding brought in any such court\nhas been brought in an inconvenient forum. Each party hereby agrees that service of any process, summons, notice or document by U.S. registered\nmail addressed to such party shall be effective service of process for any such suit, action or proceeding brought against such party in any such court.\nEach party hereto agrees that a final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon\nsuch party and may be enforced in any other courts to whose jurisdiction such party is or may be subject by suit upon such judgment.\nThis Agreement may be signed in any number of counterparts (including by fax and PDF) with the same effect as if the signatures to each\ncounterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. This Agreement shall\nbecome effective when, and only when, each party hereto shall have received a counterpart hereof signed by the other parties hereto.\n[Signature page follows]\n2\nIf the foregoing correctly sets forth our agreement, please sign and return one copy of this Agreement to [CONTACT], whereupon this Agreement shall constitute our binding agreement with respect to the matters set forth herein. Accepted and agreed:\nGEORGIA-PACIFIC LLC\nBy:\nName:\nTitle:\nBUCKEYE TECHNOLOGIES INC. By:\nName:\nTitle:\nVery truly yours,\n[BUYER’S REPRESENTATIVE]\nBy:\nName:\nTitle:	EX-99.(D)(3) 13 528890dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nBuckeye Technologies Inc.\n1001 Tillman Street\nMemphis, TN 38112\nJanuary 30, 2013\nGeorgia-Pacific LLC\n133 Peachtree Street, N.E.\nAtlanta, GA 30303\nAttention: David G. Park\nDear Mr. Park:\nGeorgia-Pacific LLC ("Buyer") has requested certain non-public information regarding Buckeye Technologies Inc. (the "Company.") and its\nsubsidiaries (collectively, the "Companies") in connection with a potential negotiated transaction (the "Transaction") between Buyer and the\nCompany. As a condition to furnishing such information to Buyer, the Company and Buyer agree to the following provisions:\n1. Certain Definitions. As used in this letter agreement (this "Agreement"):\n(a) "Affiliate" means, with respect to any Person any other Person that is directly or indirectly Controlling, Controlled by or under\ncommon Control with such Person, where "Control" and derivative terms mean the possession, directly or indirectly, of the power to direct or cause\nthe direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.\n(b) "Evaluation Material" means any information or data concerning any of the Companies or any of their respective Affiliates, whether\nin\noral,\nvisual, written, electronic or other form, that is disclosed to Buyer or any of its Representatives before the date hereof, now or in the future by\nany of the Companies or any of their respective Representatives, together with all notes, memoranda, summaries, analyses, compilations and other\nwritings relating thereto that are prepared by Buyer or any of its Representatives to the extent that they use, contain, reflect or are derived from\nor\nincorporate\nany\nsuch\ninformation\nor\ndata.\nNotwithstanding\nthe\nforegoing,\n"Evaluation\nMaterial"\ndoes\nnot\ninclude\nany\ninformation\nor\ndata\nthat:\n(i)\nis\nor was independently developed by Buyer or any of its Representatives without reference to the Evaluation Material; (ii) is or becomes available\nto\nthe public, other than as a result of disclosure by Buyer or any of its Representatives in breach of this Agreement; (iii) is or becomes available to\nBuyer or any of its Representatives on a non-confidential basis from a source other than any of the Companies or any of their respective\nRepresentatives, so long as Buyer or its Representatives, after reasonable inquiry, have no reason to believe that such source is bound by an\nobligation of confidentiality or secrecy to the Companies; or (iv) is in Buyer or its Representatives possession prior to the date of this Agreement.\n(c) "Person" means any natural person, business, corporation, company, association, limited liability company, partnership, limited\npartnership, limited liability partnership, joint venture, business enterprise, trust, governmental authority or other legal entity.\n(d) "Representatives" means, with respect to any Person, the Affiliates of such Person and any of such Person's and its Affiliates\nrespective directors, employees, managing members, general partners, attorneys, accountants, investment bankers, financial advisors, consultants\nand\nother advisors, together with any actual or potential sources of debt financing for such Person or its Affiliates.\n2. Confidentiality, Use and Disclosure of Evaluation Material.\n(a) Confidentiality. and Use of Evaluation Material. Buyer agrees that Buyer and its Representatives shall (i) use the Evaluation Material\nsolely for the purpose of evaluating, negotiating and consummating the Transaction; (ii) except as otherwise permitted by this Section 2 or\nSection 3(c), keep all Evaluation Material strictly confidential; and (iii) disclose Evaluation Material only to Representatives of Buyer to whom\ndisclosure is needed to facilitate Buyer's evaluation, negotiation and/or consummation of the Transaction. Before Buyer or any of its Representatives\nprovides access to any Evaluation Material to any of its Representatives, Buyer agrees that it or one of its Representatives shall inform such\nRepresentative of the confidential nature of the Evaluation Material.\n(b) Discussion Disclosure. Except for such disclosure as is necessary not to be in violation of any applicable law, regulation, order or\nother similar requirement of any governmental, regulatory or supervisory authority or any applicable listing agreement (together, "Applicable Law"),\nBuyer and the Company each agrees that, without the prior written consent of the other party, neither it nor any of its Representatives shall: (i) make\nany disclosure to any other Person (other than such party's Representatives to whom disclosure is needed to facilitate Buyer's evaluation, negotiation\nand/or consummation of the Transaction) of (A) the fact that investigations, discussions or negotiations are taking or have taken place concerning the\nTransaction, (B) the existence or contents of this Agreement, (C) the fact that Buyer and/or any of its Representatives have requested or received\nEvaluation Material, conducted due diligence or attended management meetings or site visits with any of the Companies or any of their respective\nRepresentatives or are otherwise considering the Transaction or (D) any of the terms, conditions or facts relating to the Transaction, including the\nstatus thereof; or (ii) make any public statement concerning the Transaction (any disclosure or statement described in clauses (i) or (ii) being\n"Discussions Disclosure"). Notwithstanding the foregoing, the Company may disclose to other potential buyers that it is considering, investigating,\ndiscussing or negotiating a Transaction and the terms and conditions thereof but may not disclose the involvement therein of Buyer or its\nRepresentatives or any other information identifying the involvement of Buyer or its Representatives.\n(c) Compulsory Disclosure. If Buyer or any of its Representatives is requested or required by interrogatories, requests for information\nfrom a governmental, regulatory or supervisory authority, subpoena or similar legal process to disclose any Evaluation Material or Discussions\nDisclosure, or Buyer believes that any Discussions Disclosure is required for Buyer or any of its Representatives not to be in violation\nof\nApplicable\nLaw, Buyer shall provide the Company with prompt prior written notice thereof, to the extent not prohibited by Applicable Law, so that the\nCompany may seek an appropriate protective order and/or, in the sole discretion of the Company, waive compliance by Buyer or its applicable\nRepresentatives with the applicable provisions of this Agreement. If, in the absence of such a protective order or waiver, Buyer or any of its\nRepresentatives is nonetheless legally compelled to disclose any Evaluation Material or Discussions Disclosure, then Buyer or such Representatives\nmay, without liability under this Agreement, disclose only such portion of the Evaluation Material or make only such Discussions Disclosure (as\napplicable) as is legally required to be disclosed; provided that Buyer agrees to use (and to cause its applicable Representatives to use) reasonable\nefforts to obtain assurances that any such disclosed Evaluation Material and Discussions Disclosure will be afforded confidential treatment and the\nCompany agrees to reimburse Buyer and any such Representatives for the reasonable and documented out-of-pocket expenses incurred in connection\nwith such efforts to have such Evaluation Material or Discussions Disclosure (as applicable) afforded confidential treatment. In the event that\nCompany determines to seek such protective order or other remedy, the Buyer and any such Representative of the Buyer will reasonably cooperate\nwith the Company (at the Company's expense) in seeking such protective order or other remedy.\n2\n(d) Disclosure Permitted to Defend Dispute. Notwithstanding the foregoing provisions of this Section 2, Buyer or any of its\nRepresentatives may disclose Evaluation Material or Discussions Disclosure to the extent necessary to defend any litigation claim or cause of action\nbrought against Buyer or any of its Representatives by the Company relating to the Transaction; provided that Buyer agrees to use (and to cause its\napplicable Representatives to use) reasonable efforts to obtain assurances that any such disclosed Evaluation Material and Discussions Disclosure\nwill be afforded confidential treatment and the Company agrees to reimburse Buyer and any such Representatives for the reasonable and\ndocumented out-of-pocket expenses incurred in connection with such efforts to have such Evaluation Material or Discussions Disclosure (as\napplicable) afforded confidential treatment.\n3. Joint Bidding and Lock-ups.\n(a) Buyer hereby represents and warrants that Buyer is not acting as a broker for or Representative of any other Person (other than its\nAffiliates) in connection with the Transaction, and is considering the Transaction only for its own account and for the account of its Affiliates.\nExcept with the prior written consent of the Company, Buyer agrees that (i) it will not act as a joint bidder or co-bidder with any other Person with\nrespect to the Transaction, other than its Affiliates, and (ii) neither Buyer nor any of its Representatives (acting on behalf of Buyer or its Affiliates)\nwill enter into any discussions, negotiations, agreements, arrangements or understandings (whether written or oral) with any other Person regarding\nthe Transaction, other than the Company and its Representatives and Buyer's Representatives (to the extent permitted hereunder).\n(b)\nBuyer hereby represents and warrants that neither it nor any of its Controlled Affiliates is party to any agreement, arrangement\nor\nunderstanding (whether written or oral) that would restrict the ability of any other Person to provide financing (debt, equity or otherwise) to any\nother Person specifically for the Transaction, and Buyer hereby agrees that (i) neither it nor any of its Controlled Affiliates will restrict the ability of\nany other Person to provide any such financing, and (ii) Buyer will direct its Affiliates (other than Controlled Affiliates) and Representatives not to\nrestrict the ability of any other Person to provide any such financing.\n(c) Notwithstanding anything to the contrary contained herein, without the prior written consent of the Company, Buyer agrees that\nneither Buyer nor any of its Representatives will disclose any Evaluation Material or make any Discussions Disclosure to any actual or potential\nsources of financing (debt, equity or otherwise), other than bona fide third party institutional lenders who provide or are or may be engaged to\nprovide debt financing to Buyer or its Affiliates.\n4. Securities Law Restrictions. Buyer acknowledges that: (a) the Evaluation Material and information that, if disclosed, would constitute\nDiscussions Disclosure may contain material non-public information concerning the Companies and their respective Affiliates; (b) Buyer is aware of\nthe restrictions imposed by U.S. federal and state securities laws, and the rules and regulations promulgated thereunder, on Persons in possession of\nmaterial non-public information; and (c) Buyer will not (and Buyer will instruct its Representatives to not), directly or indirectly, use or allow any\nother Person to use, any Evaluation Material or information that, if disclosed, would constitute Discussions Disclosure in contravention of any U.S.\nfederal or state securities laws. Nothing herein shall constitute an admission by either party that any Evaluation Material or other such information in\nfact contains material non-public information concerning the Companies or any of their respective Affiliates.\n3\n5. No Representations or Warranties. Buyer acknowledges and agrees that: (a) except as may be included in the Definitive Transaction\nAgreements, no representation or warranty, express or implied, is made by the Companies or any of their respective Representatives as to the\naccuracy or completeness of any of the Evaluation Material; and (b) Buyer shall be entitled to rely only on those representations and warranties\nthat\nare expressly set forth in any definitive written agreements that is hereafter executed and delivered by both Buyer and the Company in connection\nwith the Transaction ("Definitive Transaction Agreements"). Except as may be expressly set forth in Definitive Transaction Agreements, none of the\nCompanies or any of their respective Representatives shall have any liability to Buyer or any of its Representatives on account of the use of any\nEvaluation Material by Buyer or any of its Representatives or any inaccuracy therein or omission therefrom. Unless and until Definitive Transaction\nAgreements are entered into, neither party nor any of its Representatives, by virtue of this Agreement or any other written or oral expression, will\nbe\nunder any legal obligation of any kind whatsoever with respect to such a Transaction except for the matters specifically agreed to in this Agreement.\n6.\nDestruction or Erasure of Evaluation Material. Promptly after receipt of the Company's written request, Buyer agrees that Buyer and its\nRepresentatives shall destroy or erase all Evaluation Material (including any Evaluation Material held electronically) in the possession or control of\nBuyer or any of its Representatives, and Buyer shal certify such destruction or erasure to the Company; provided that (i) neither Buyer nor any of its\nRepresentatives shall be required to destroy or erase any electronic copy of any Evaluation Material that is created pursuant to such Person's\nstandard electronic backup and archival procedures if (x) personnel whose functions are not primarily information technology in nature do not have\naccess to such retained copies and (y) personnel whose functions are primarily information technology in nature have access to such copies only as\nreasonably necessary for the performance of their information technology duties (e.g., for purposes of system recovery) and (ii) Buyer and its\nRepresentatives may each retain one copy of any Evaluation Material to the extent required to defend or maintain any litigation relating to this\nAgreement or the Evaluation Material, or to comply with requirements of Applicable Law or established document retention policies. All such\nEvaluation Material retained in accordance with the foregoing proviso shall continue to be subject to Section 2 and Section 4.\n7. Communications Regarding the Transaction. Buyer agrees that all communications by it or any of its Representatives concerning the\nTransaction and its due diligence investigation (including requests for additional Evaluation Material, meetings with management and site visits)\nshall be directed solely to Steven G. Dean, Executive Vice President and Chief Financial Officer, except as may otherwise by approved in advance\nand in writing by the Company. Buyer agrees that, except with the prior written consent of the Company, neither Buyer nor any of its\nRepresentatives will contact or communicate with any of the directors, officers, employees, customers, suppliers, distributors, licensees, licensors,\nclients and other business relations of any of the Companies regarding the Companies or the Transaction, in each case except to the extent such\ncontacts and communications are (i) made in the ordinary course of business of Buyer or the applicable Representatives and are unrelated to the\nTransaction and the evaluation of the Transaction conducted by Buyer and its Representatives or (ii) approved in advance and in writing by the\nCompany.\n8. No Solicitation or Hiring. Buyer agrees that, except with the prior written consent of the Company, it will not, and it will not permit any of\nits\nControlled Affiliates to, directly or indirectly, solicit for employment or hire any employees of the Companies with whom it initially comes into\ncontact in connection with the Transaction for a period of 18 months after the date of this Agreement; provided that this Section 8 shall not restrict\nBuyer or any of its Controlled Affiliates from\n4\n(i) making any general solicitation for employment that is not specifically directed at any such Persons, (ii) soliciting any such Person who has left\nthe employment of the Companies at least six months prior to such solicitation, (iii) hiring any Person that is referred by a third party agency through\na general search not targeted at employees of the Companies or (iv) hiring any Person who directly submits an application for employment to Buyer\nor\nany of its Controlled Affiliates without any solicitation effort by Buyer or any of its Controlled Affiliates that would be a violation of this\nSection 8.\n9. Standstill. Unless approved in advance in writing by the board of directors of the Company, Buyer agrees that neither Buyer nor any of its\nRepresentatives acting on behalf of or in concert with Buyer (or any of its Representatives) will, from the date hereof and for a period extending until\n18\nmonths after the date on which the Company last provides Evaluation Material under this Agreement, directly or indirectly:\n(a) make any public announcement, proposal or offer with respect to (including, for the avoidance of doubt, indirectly by means of\ncommunication with the press or media) (i) any business combination, merger, tender offer, exchange offer or similar transaction involving any of\nthe Companies, (ii) any restructuring, recapitalization, liquidation or similar transaction involving any of the Companies, (iii) any acquisition of any\nof the Companies' loans, debt securities, equity securities or assets, or rights or options to acquire interests in any of the Companies' loans, debt\nsecurities, equity securities or assets, (iv) any proposal to seek representation on the board of directors of the Company or otherwise seek to control\nor influence the management, board of directors or policies of the Company, (v) any request or proposal to waive, terminate or amend the provisions\nof this Agreement or (vi) any proposal, arrangement or other statement that is inconsistent with the terms of this Agreement, including this\nSection 9(a);\n(b) make, or in any way participate in, directly or indirectly, any "solicitation" of "proxies" (as such terms are defined or used in\nRegulation 14A of the Securities Exchange Act of 1934, as amended) to vote, or seek to advise or influence any Person with respect to the voting of,\nany voting securities of the Company.\n(c) instigate, encourage or assist any third party (including forming a "group" (as defined in Section 13(d)(3) of the Securities Exchange\nAct of 1934, as amended) with any such third party) to do, or enter into any discussions or agreements with any third party with respect to, any of the\nactions set forth in clause (a) or (b) above;\n(d) take any action which would reasonably be expected to require the Company or any of its Affiliates to make a public announcement\nregarding any of the actions set forth in clause (a) or (b) above; or\n(e) acquire (or propose or agree to acquire), of record or beneficially, by purchase or otherwise, any loans, debt securities, equity\nsecurities or assets of any of the Companies or rights or options to acquire interests in any of the Companies' loans, debt securities, equity securities\nor assets.\nAs of the date of this Agreement, neither the Buyer nor any of its Controlled Affiliates owns any loans, debt securities, equity securities or assets of\nany of the Companies or rights or options to acquire interests in any of the Companies' loans, debt securities, voting securities or assets.\nThe foregoing restrictions shall not apply to any of Buyer's Representatives effecting or recommending transactions in securities (A) in the ordinary\ncourse of its business as an investment advisor, broker,\n5\ndealer in securities, market maker, specialist or block positioner and (B) not at the direction or request of Buyer or any of its Affiliates. The\nCompany acknowledges that certain of the Buyer's Affiliates are engaged in trading activities in which such Affiliates may effect transactions in the\nsecurities of the Companies or other entities in the ordinary course of business. The Company hereby agrees that nothing in this Section 9 shall\nprohibit or restrict acquisitions in the aggregate of not more than 5% of the voting securities of the Company by such Affiliates in the ordinary\ncourse of their trading activities provided they occur without the use of or access to the Evaluation Material.\n(f) Notwithstanding the foregoing provisions of this Section 9:\n(i) Buyer and its Representatives may exercise voting rights pursuant to its ownership of any securities of the Companies at any\nregular or special meeting at which such other holders of the same class of securities are entitled to vote;\n(ii) shall not restrict Buyer or any of its Representatives from making any proposal regarding a possible Transaction to\nmanagement of the Company and its advisors or directly to the board of directors of the Company on a confidential basis if such proposal does not\nrequire the Company to make a public announcement regarding this Agreement, a possible Transaction or any of the matters described in this\nSection 9; provided, however, that, from and after the date on which the Company shall have recommended, publicly proposed or publicly\nannounced an intention to authorize, recommend or propose, or shall have entered into an agreement with any Person (other than Buyer or\nits\nAffiliates) to effect or participate in a transaction of the type contemplated by clause (a) above, any such communications may be made to\nmanagement of the Company and its advisors or directly to the board of directors of the Company without regard to whether to Company would or\nmight be required to make a public announcement with respect thereto until such time as such Transaction closes or is terminated or abandoned by\nthe parties thereto; and\n(iii) Buyer and its Representatives may purchase goods or services of the Companies or submit proposals for the purchase or\nsale\nof goods or services to the Companies in the ordinary course of business.\n10. Remedies. Each party agrees that money damages may not be a sufficient remedy for a breach or a threatened breach of this Agreement\nand that each party shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach or\nthreatened breach, in addition to all other remedies available at law or in equity. Such injunctive or other equitable relief shall be available without\nthe obligation to prove any damages underlying such breach or threatened breach. Each party agrees that it will not petition or otherwise attempt to\nrequire the posting of a bond or other security in connection with any attempt by any other party to seek such injunctive or other equitable relief. No\nfailure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event of any legal\nproceedings relating to this Agreement, the reasonable costs and expenses incurred by the prevailing party and its Representatives in connection with\nsuch proceedings, including attorney fees and disbursements, shall be reimbursed by the non-prevailing party.\n11. No Waiver of Privilege. To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, none of the\nCompanies waives or is waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client\nprivileges or similar protections and privileges as a result of disclosing any Evaluation Material (including Evaluation Material related to pending or\nthreatened litigation) to Buyer or any of its Representatives.\n6\n12. Liability for Representatives. Buyer shall be liable for any breaches of this Agreement by any of its Representatives, except for breaches\ncommitted by any Representative that is party to either (a) a separate joinder agreement among such Representative, Buyer and the Company in the\nform set forth as Exhibit A hereto or (b) a separate mutually acceptable confidentiality agreement between such Representative and the Company\nwith respect to the Evaluation Material.\n13. Term. Except for Sections 6 (Destruction or Erasure of Evaluation Material) and 14(i) (Governing Law; Forum), which shall\nbe\nbinding\nin\nperpetuity or until the latest date permitted by Applicable Law, this Agreement shall expire upon the date that is two years after the date of this\nAgreement.\n14. Miscellaneous.\n(a) Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the matters set forth\nherein.\n(b) Data Site Provision. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed by\nany offering memorandum, web-based database or similar repository of Evaluation Material to which Buyer or any of its Representatives is granted\naccess in connection with the evaluation, negotiation or consummation of the Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, "clicking" on an "I Agree" icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that its confidentiality obligations with respect to the Evaluation Material are exclusively\ngoverned by this Agreement and may not be enlarged except by a written agreement that is hereafter executed by each of the parties hereto.\n(c) Competing Activities. Subject to Buyer's compliance with its obligations with respect to the nondisclosure and use of the Evaluation\nMaterial, nothing in this Agreement shall prevent Buyer or any of its Representatives from evaluating a possible investment in and/or collaborating\nwith,\nor\nentering into any transaction with (including an investment in), or monitoring, managing, maintaining or otherwise acting with respect to\nan\ninvestment in, any Person whose business is similar to or competitive with the business of the Companies. The Company acknowledges that Buyer\nand its Representatives conduct business with many Persons, some of which may engage in or pursue businesses and strategies that are similar to or\ncompetitive with those of the Companies. Although Buyer is subject to the obligations set forth in this Agreement, the occurrence or existence of\nsuch similar or competitive activities shall not by itself be cause for any action or allegation by the Company that Buyer or any of its Representatives\nhas failed to observe any of the obligations set forth in this Agreement.\n(d) Ownership of Evaluation Material; No License. All Evaluation Material prepared by or on behalf of the Companies is and shall\nremain property of the applicable Companies. Buyer acknowledges and agrees that none of the Companies nor any of their respective\nRepresentatives grants any license or other property right or interest in, by implication or otherwise, any copyright, patent, trademark, mask work,\ndatabase or other intellectual or intangible property or proprietary information disclosed, embodied, fixed, comprised or contained in any Evaluation\nMaterial prepared by or on behalf of the Companies.\n7\n(e) Assignment; Successors. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by any party without\nthe prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and unenforceable. Any purchaser\nof the Company or all or substantially all of the assets of the Companies shall be entitled to the benefits of this Agreement, whether or not this\nAgreement is assigned to such purchaser.\n(f) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly signed\nand delivered by or on behalf of both Buyer and the Company.\n(g) Severability.. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or\nenforceability of any other provision of this Agreement, unless the enforcement of such other provision in such circumstances would be inequitable.\n(h) No Obligation To Complete a Transaction. This Agreement is not intended to, and does not, constitute an agreement or impose any\nobligation on either party to (i) consummate a Transaction, (ii) conduct or continue discussions or negotiations concerning a Transaction, (iii) enter\ninto a joint venture or other business relationship of any kind or (iv) enter into or negotiate Definitive Transaction Agreements. Except with respect\nto the matters specifically set forth herein, neither party shall have any rights or obligations of any kind whatsoever with respect to a Transaction by\nvirtue of this Agreement or any other written or oral expression by the parties or their respective Representatives unless and until Definitive\nTransaction Agreements is executed and delivered. Buyer acknowledge that the Company reserves the right to (A) provide or not provide Evaluation\nMaterial to, and to request the destruction or erasure of Evaluation Material by, Buyer or any of its Representatives, (B) reject any proposals made\nby\nBuyer or any of its Representatives, (C) terminate discussions or negotiations with Buyer or any of its Representatives and (D) engage in discussions\nand/or negotiations, and to enter into any agreement, with any other Person, in each case in the Company's sole discretion, without notice to Buyer\nor\nany\nof\nits\nRepresentatives,\nat\nany\ntime\nand\nfor\nany\nreason\nor\nno\nreason.\nBuyer\nshall\nnot\nhave\nany\nclaim\nor\ncause\nof\naction\nagainst\nthe\nCompanies\nor any of their respective Representatives in respect of the foregoing, except as specifically set forth in any Definitive Transaction Agreement, if any,\nthat is hereafter executed.\n(i) Governing. Law; Forum. This Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise\nout of or relate to this Agreement, or the negotiation, execution or performance of this Agreement shall be governed by, and construed in accordance\nwith, the laws of the State of Delaware. Each party consents and submits to the exclusive jurisdiction of the Delaware Court of Chancery, or in\nthe\nevent that the Delaware Court of Chancery lacks jurisdiction, any other court of the State of Delaware for the adjudication of any action or legal\nproceeding relating to or arising out of this Agreement and the transactions contemplated hereby (and each party agrees not to commence any action\nor legal proceeding relating thereto except in any such court). Each party hereby irrevocably and unconditionally waives any objection which it may\nnow or hereafter have to the laying of venue in such courts and agrees not to plead or claim in any such court that any such action or legal\nproceeding brought in any such court has been brought in an inconvenient forum. Each party hereby agrees that service of any process, summons,\nnotice or document by U.S. registered mail addressed to such party shall be effective service of process for any such suit, action or proceeding\nbrought against such party in any such court. Each party hereto agrees that a final judgment in any such suit, action or proceeding brought in any\nsuch court shall be conclusive and binding upon such party and may be enforced in any other courts to whose jurisdiction such party is or may be\nsubject by suit upon such judgment.\n8\n(j) Waiver of Conflicts. Buyer hereby acknowledges that Dechert LLP ("Dechert") represents the Company, and if for any reason\nDechert's representation of the Company in negotiations with Buyer would create a conflict of interest, because of Dechert's representation of Buyer\nin other unrelated matters or otherwise, Buyer hereby waives any such conflict and agrees that Dechert may represent the Company in connection\nwith the Transaction, including in any litigation that might result.\n(k) Counterparts. This Agreement may be signed in any number of counterparts (including by fax or PDF) with the same effect as if the\nsignatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. This\nAgreement shall become effective when, and only when, each party hereto shall have received a counterpart hereof signed by the other party hereto.\n9\nIf the foregoing correctly sets forth our agreement, please sign and return one copy of this Agreement to John B. Crowe, whereupon this Agreement\nshall constitute our binding agreement with respect to the matters set forth herein.\nVery truly yours,\nBUCKEYE TECHNOLOGIES INC.\nBy:\n/s/ John B. Crowe\nName: John B. Crowe\nTitle: Chairman of the Board and Chief Executive\nOfficer\nAccepted and agreed to\nas of the date first written above:\nGEORGIA-PACIFIC LLC\nBy:\n/s/ David G. Park\nName: David G. Park\nTitle:\nSenior Vice President - Strategy and\nBusiness Development\n10\nExhibit A\nJOINDER AGREEMENT\n[Date]\n[Name of Representative]\nBuckeye Technologies Inc.\n1001 Tillman Street\nMemphis, TN 38112\nAttention: John Crowe\nGeorgia-Pacific LLC\n133 Peachtree Street, N.E.\nAtlanta, GA 30303\nAttention: David G. Park\nLadies and Gentlemen:\nWe refer to the attached confidentiality agreement dated January 30, 2013 (the "Confidentiality. Agreement") between Georgia-Pacific LLC\n("Buyer") and Buckeye Technologies Inc. (the "Company."). Capitalized terms used below that are defined in the Confidentiality Agreement are\nused with the meanings given such terms in the Confidentiality Agreement.\nThe undersigned is a Representative of Buyer ("Buyer's Representative"). Buyer's Representative hereby agrees, for the benefit of Buyer and the\nCompany, to be bound on behalf of itself and its Representatives by the obligations with respect to Buyer's Representatives contained in Sections\n2,\n3, 6, and 7 of the Confidentiality Agreement (the "Obligations") as if it were a party thereto.\nThe parties hereto acknowledge and agree that the signing of this agreement (this "Agreement") does not obligate any Person to enter into the\nTransaction or to provide financing for the Transaction. Buyer acknowledges and agrees that Buyer's Representative shall not be restricted from\nbeing engaged or mandated by, or otherwise assisting or participating with, any other Person in any transaction that is similar to or competitive with\nthe Transaction but Buyer's Representative must comply with the Obligations as provided herein. Additionally, nothing herein or in the\nConfidentiality Agreement shall prohibit Buyer's Representative from disclosing to any third party who contacts Buyer's Representative to act as\na\npotential financing source with respect to a transaction that is similar to or competitive with the Transaction, the fact that it is working with\nanother\nPerson with respect to a transaction with the Company, so long as it keeps confidential the identity of Buyer and otherwise complies with the\nObligations.\nNo failure or delay by Buyer or the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof or preclude any\nother or further exercise thereof or the exercise of any other right, power or privilege hereunder.\nBuyer's Representative agrees that money damages may not be a sufficient remedy for a breach or a threatened breach of this Agreement and that\nBuyer and the Company shall be entitled to seek specific\nperformance and injunctive or other equitable relief as a remedy for any such breach or threatened breach, in addition to all other remedies available\nat law or in equity. Such injunctive or other equitable relief shall be available without the obligation to prove any damages underlying such breach or\nthreatened breach. Each party agrees that it will not petition or otherwise attempt to require the posting of a bond or other security in connection with\nany attempt by any other party to seek such injunctive or other equitable relief.\nThis Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement, or\nthe negotiation, execution or performance of this Agreement shall be governed by, and construed in accordance with, the laws of the State of\nDelaware. Each party consents and submits to the exclusive jurisdiction of the Delaware Court of Chancery, or in the event that the Delaware Court\nof\nChancery lacks jurisdiction, any other court of the State of Delaware for the adjudication of any action or legal proceeding relating to or arising\nout of this Agreement and the transactions contemplated hereby (and each party agrees not to commence any action or legal proceeding relating\nthereto except in any such court). Each party hereby irrevocably and unconditionally waives any objection which it may now or hereafter have to the\nlaying of venue in such courts and agrees not to plead or claim in any such court that any such action or legal proceeding brought in any such court\nhas\nbeen brought in an inconvenient forum. Each party hereby agrees that service of any process, summons, notice or document by U.S. registered\nmail addressed to such party shall be effective service of process for any such suit, action or proceeding brought against such party in any such court.\nEach party hereto agrees that a final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon\nsuch party and may be enforced in any other courts to whose jurisdiction such party is or may be subject by suit upon such judgment.\nThis Agreement may be signed in any number of counterparts (including by fax and PDF) with the same effect as if the signatures to each\ncounterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. This Agreement shall\nbecome effective when, and only when, each party hereto shall have received a counterpart hereof signed by the other parties hereto.\n[Signature page follows]\n2\nIf the foregoing correctly sets forth our agreement, please sign and return one copy of this Agreement to [CONTACTI, whereupon this Agreement\nshall constitute our binding agreement with respect to the matters set forth herein.\nVery truly yours,\n[BUYER'S REPRESENTATIVE]\nBy:\nName:\nTitle:\nAccepted and agreed:\nGEORGIA-PACIFIC LLC\nBy:\nName:\nTitle:\nBUCKEYE TECHNOLOGIES INC.\nBy:\nName:\nTitle:\n3	EX-99.(D)(3) 13 d528890dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nBuckeye Technologies Inc.\n1001 Tillman Street\nMemphis, TN 38112\nJanuary 30, 2013\nGeorgia-Pacific LLC\n133 Peachtree Street, N.E .\nAtlanta, GA 30303\nAttention: David G. Park\nDear Mr. Park:\nGeorgia-Pacific LLC (“Buyer”) has requested certain non-public information regarding Buckeye Technologies Inc. (the “Company”) and its\nsubsidiaries (collectively, the “Companies”) in connection with a potential negotiated transaction (the “Transaction”) between Buyer and the\nCompany. As a condition to furnishing such information to Buyer, the Company and Buyer agree to the following provisions:\n1. Certain Definitions. As used in this letter agreement (this “ Agreement”):\n(a) “Affiliate” means, with respect to any Person, any other Person that is directly or indirectly Controlling, Controlled by or under\ncommon Control with such Person, where “Control” and derivative terms mean the possession, directly or indirectly, of the power to direct or cause\nthe direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.\n(b) “Evaluation Material” means any information or data concerning any of the Companies or any of their respective Affiliates, whether\nin oral, visual, written, electronic or other form, that is disclosed to Buyer or any of its Representatives before the date hereof, now or in the future by\nany of the Companies or any of their respective Representatives, together with all notes, memoranda, summaries, analyses, compilations and other\nwritings relating thereto that are prepared by Buyer or any of its Representatives to the extent that they use, contain, reflect or are derived from or\nincorporate any such information or data. Notwithstanding the foregoing, “Evaluation Material” does not include any information or data that: (i) is\nor was independently developed by Buyer or any of its Representatives without reference to the Evaluation Material; (ii) is or becomes available to\nthe public, other than as a result of disclosure by Buyer or any of its Representatives in breach of this Agreement; (iii) is or becomes available to\nBuyer or any of its Representatives on a non-confidential basis from a source other than any of the Companies or any of their respective\nRepresentatives, so long as Buyer or its Representatives, after reasonable inquiry, have no reason to believe that such source is bound by an\nobligation of confidentiality or secrecy to the Companies; or (iv) is in Buyer or its Representatives possession prior to the date of this Agreement.\n(c) “Person” means any natural person, business, corporation, company, association, limited liability company, partnership, limited\npartnership, limited liability partnership, joint venture, business enterprise, trust, governmental authority or other legal entity.\n(d) “Representatives” means, with respect to any Person, the Affiliates of such Person and any of such Person’s and its Affiliates\nrespective directors, employees, managing members, general partners, attorneys, accountants, investment bankers, financial advisors, consultants and\nother advisors, together with any actual or potential sources of debt financing for such Person or its Affiliates.\n2. Confidentiality, Use and Disclosure of Evaluation Material.\n(a) Confidentiality and Use of Evaluation Material. Buyer agrees that Buyer and its Representatives shall (i) use the Evaluation Material\nsolely for the purpose of evaluating, negotiating and consummating the Transaction; (ii) except as otherwise permitted by this Section 2 or\nSection 3(c), keep all Evaluation Material strictly confidential; and (iii) disclose Evaluation Material only to Representatives of Buyer to whom\ndisclosure is needed to facilitate Buyer’s evaluation, negotiation and/or consummation of the Transaction. Before Buyer or any of its Representatives\nprovides access to any Evaluation Material to any of its Representatives, Buyer agrees that it or one of its Representatives shall inform such\nRepresentative of the confidential nature of the Evaluation Material.\n(b) Discussion Disclosure. Except for such disclosure as is necessary not to be in violation of any applicable law, regulation, order or\nother similar requirement of any governmental, regulatory or supervisory authority or any applicable listing agreement (together, “Applicable Law”),\nBuyer and the Company each agrees that, without the prior written consent of the other party, neither it nor any of its Representatives shall: (i) make\nany disclosure to any other Person (other than such party’s Representatives to whom disclosure is needed to facilitate Buyer ’s evaluation, negotiation\nand/or consummation of the Transaction) of (A) the fact that investigations, discussions or negotiations are taking or have taken place concerning the\nTransaction, (B) the existence or contents of this Agreement, (C) the fact that Buyer and/or any of its Representatives have requested or received\nEvaluation Material, conducted due diligence or attended management meetings or site visits with any of the Companies or any of their respective\nRepresentatives or are otherwise considering the Transaction or (D) any of the terms, conditions or facts relating to the Transaction, including the\nstatus thereof; or (ii) make any public statement concerning the Transaction (any disclosure or statement described in clauses (i) or (ii) being\n“Discussions Disclosure”). Notwithstanding the foregoing, the Company may disclose to other potential buyers that it is considering, investigating,\ndiscussing or negotiating a Transaction and the terms and conditions thereof but may not disclose the involvement therein of Buyer or its\nRepresentatives or any other information identifying the involvement of Buyer or its Representatives.\n(c) Compulsory Disclosure. If Buyer or any of its Representatives is requested or required by interrogatories, requests for information\nfrom a governmental, regulatory or supervisory authority, subpoena or similar legal process to disclose any Evaluation Material or Discussions\nDisclosure, or Buyer believes that any Discussions Disclosure is required for Buyer or any of its Representatives not to be in violation of Applicable\nLaw, Buyer shall provide the Company with prompt prior written notice thereof, to the extent not prohibited by Applicable Law, so that the\nCompany may seek an appropriate protective order and/or, in the sole discretion of the Company, waive compliance by Buyer or its applicable\nRepresentatives with the applicable provisions of this Agreement. If, in the absence of such a protective order or waiver, Buyer or any of its\nRepresentatives is nonetheless legally compelled to disclose any Evaluation Material or Discussions Disclosure, then Buyer or such Representatives\nmay, without liability under this Agreement, disclose only such portion of the Evaluation Material or make only such Discussions Disclosure (as\napplicable) as is legally required to be disclosed; provided that Buyer agrees to use (and to cause its applicable Representatives to use) reasonable\nefforts to obtain assurances that any such disclosed Evaluation Material and Discussions Disclosure will be afforded confidential treatment and the\nCompany agrees to reimburse Buyer and any such Representatives for the reasonable and documented out-of-pocket expenses incurred in connection\nwith such efforts to have such Evaluation Material or Discussions Disclosure (as applicable) afforded confidential treatment. In the event that\nCompany determines to seek such protective order or other remedy, the Buyer and any such Representative of the Buyer will reasonably cooperate\nwith the Company (at the Company’s expense) in seeking such protective order or other remedy.\n2\n(d) Disclosure Permitted to Defend Dispute. Notwithstanding the foregoing provisions of this Section 2, Buyer or any of its\nRepresentatives may disclose Evaluation Material or Discussions Disclosure to the extent necessary to defend any litigation claim or cause of action\nbrought against Buyer or any of its Representatives by the Company relating to the Transaction; provided that Buyer agrees to use (and to cause its\napplicable Representatives to use) reasonable efforts to obtain assurances that any such disclosed Evaluation Material and Discussions Disclosure\nwill be afforded confidential treatment and the Company agrees to reimburse Buyer and any such Representatives for the reasonable and\ndocumented out-of-pocket expenses incurred in connection with such efforts to have such Evaluation Material or Discussions Disclosure (as\napplicable) afforded confidential treatment.\n3. Joint Bidding and Lock-ups.\n(a) Buyer hereby represents and warrants that Buyer is not acting as a broker for or Representative of any other Person (other than its\nAffiliates) in connection with the Transaction, and is considering the Transaction only for its own account and for the account of its Affiliates.\nExcept with the prior written consent of the Company, Buyer agrees that (i) it will not act as a joint bidder or co-bidder with any other Person with\nrespect to the Transaction, other than its Affiliates, and (ii) neither Buyer nor any of its Representatives (acting on behalf of Buyer or its Affiliates)\nwill enter into any discussions, negotiations, agreements, arrangements or understandings (whether written or oral) with any other Person regarding\nthe Transaction, other than the Company and its Representatives and Buyer’s Representatives (to the extent permitted hereunder).\n(b) Buyer hereby represents and warrants that neither it nor any of its Controlled Affiliates is party to any agreement, arrangement or\nunderstanding (whether written or oral) that would restrict the ability of any other Person to provide financing (debt, equity or otherwise) to any\nother Person specifically for the Transaction, and Buyer hereby agrees that (i) neither it nor any of its Controlled Affiliates will restrict the ability of\nany other Person to provide any such financing, and (ii) Buyer will direct its Affiliates (other than Controlled Affiliates) and Representatives not to\nrestrict the ability of any other Person to provide any such financing.\n(c) Notwithstanding anything to the contrary contained herein, without the prior written consent of the Company, Buyer agrees that\nneither Buyer nor any of its Representatives will disclose any Evaluation Material or make any Discussions Disclosure to any actual or potential\nsources of financing (debt, equity or otherwise), other than bona fide third party institutional lenders who provide or are or may be engaged to\nprovide debt financing to Buyer or its Affiliates.\n4. Securities Law Restrictions. Buyer acknowledges that: (a) the Evaluation Material and information that, if disclosed, would constitute\nDiscussions Disclosure may contain material non-public information concerning the Companies and their respective Affiliates; (b) Buyer is aware of\nthe restrictions imposed by U.S . federal and state securities laws, and the rules and regulations promulgated thereunder, on Persons in possession of\nmaterial non-public information; and (c) Buyer will not (and Buyer will instruct its Representatives to not), directly or indirectly, use or allow any\nother Person to use, any Evaluation Material or information that, if disclosed, would constitute Discussions Disclosure in contravention of any U.S .\nfederal or state securities laws. Nothing herein shall constitute an admission by either party that any Evaluation Material or other such information in\nfact contains material non-public information concerning the Companies or any of their respective Affiliates.\n3\n5. No Representations or Warranties. Buyer acknowledges and agrees that: (a) except as may be included in the Definitive Transaction\nAgreements, no representation or warranty, express or implied, is made by the Companies or any of their respective Representatives as to the\naccuracy or completeness of any of the Evaluation Material; and (b) Buyer shall be entitled to rely only on those representations and warranties that\nare expressly set forth in any definitive written agreements that is hereafter executed and delivered by both Buyer and the Company in connection\nwith the Transaction (“Definitive Transaction Agreements”). Except as may be expressly set forth in Definitive Transaction Agreements, none of the\nCompanies or any of their respective Representatives shall have any liability to Buyer or any of its Representatives on account of the use of any\nEvaluation Material by Buyer or any of its Representatives or any inaccuracy therein or omission therefrom. Unless and until Definitive Transaction\nAgreements are entered into, neither party nor any of its Representatives, by virtue of this Agreement or any other written or oral expression, will be\nunder any legal obligation of any kind whatsoever with respect to such a Transaction except for the matters specifically agreed to in this Agreement.\n6. Destruction or Erasure of Evaluation Material. Promptly after receipt of the Company’s written request, Buyer agrees that Buyer and its\nRepresentatives shall destroy or erase all Evaluation Material (including any Evaluation Material held electronically) in the possession or control of\nBuyer or any of its Representatives, and Buyer shall certify such destruction or erasure to the Company; provided that (i) neither Buyer nor any of its\nRepresentatives shall be required to destroy or erase any electronic copy of any Evaluation Material that is created pursuant to such Person’s\nstandard electronic backup and archival procedures if (x) personnel whose functions are not primarily information technology in nature do not have\naccess to such retained copies and (y) personnel whose functions are primarily information technology in nature have access to such copies only as\nreasonably necessary for the performance of their information technology duties (e.g., for purposes of system recovery) and (ii) Buyer and its\nRepresentatives may each retain one copy of any Evaluation Material to the extent required to defend or maintain any litigation relating to this\nAgreement or the Evaluation Material, or to comply with requirements of Applicable Law or established document retention policies. All such\nEvaluation Material retained in accordance with the foregoing proviso shall continue to be subject to Section 2 and Section 4.\n7. Communications Regarding the Transaction. Buyer agrees that all communications by it or any of its Representatives concerning the\nTransaction and its due diligence investigation (including requests for additional Evaluation Material, meetings with management and site visits)\nshall be directed solely to Steven G. Dean, Executive Vice President and Chief Financial Officer, except as may otherwise by approved in advance\nand in writing by the Company. Buyer agrees that, except with the prior written consent of the Company, neither Buyer nor any of its\nRepresentatives will contact or communicate with any of the directors, officers, employees, customers, suppliers, distributors, licensees, licensors,\nclients and other business relations of any of the Companies regarding the Companies or the Transaction, in each case except to the extent such\ncontacts and communications are (i) made in the ordinary course of business of Buyer or the applicable Representatives and are unrelated to the\nTransaction and the evaluation of the Transaction conducted by Buyer and its Representatives or (ii) approved in advance and in writing by the\nCompany.\n8. No Solicitation or Hiring. Buyer agrees that, except with the prior written consent of the Company, it will not, and it will not permit any of\nits Controlled Affiliates to, directly or indirectly, solicit for employment or hire any employees of the Companies with whom it initially comes into\ncontact in connection with the Transaction for a period of 18 months after the date of this Agreement; provided that this Section 8 shall not restrict\nBuyer or any of its Controlled Affiliates from\n4\n(i) making any general solicitation for employment that is not specifically directed at any such Persons, (ii) soliciting any such Person who has left\nthe employment of the Companies at least six months prior to such solicitation, (iii) hiring any Person that is referred by a third party agency through\na general search not targeted at employees of the Companies or (iv) hiring any Person who directly submits an application for employment to Buyer\nor any of its Controlled Affiliates without any solicitation effort by Buyer or any of its Controlled Affiliates that would be a violation of this\nSection 8.\n9. Standstill. Unless approved in advance in writing by the board of directors of the Company, Buyer agrees that neither Buyer nor any of its\nRepresentatives acting on behalf of or in concert with Buyer (or any of its Representatives) will, from the date hereof and for a period extending until\n18 months after the date on which the Company last provides Evaluation Material under this Agreement, directly or indirectly:\n(a) make any public announcement, proposal or offer with respect to (including, for the avoidance of doubt, indirectly by means of\ncommunication with the press or media) (i) any business combination, merger, tender offer, exchange offer or similar transaction involving any of\nthe Companies, (ii) any restructuring, recapitalization, liquidation or similar transaction involving any of the Companies, (iii) any acquisition of any\nof the Companies’ loans, debt securities, equity securities or assets, or rights or options to acquire interests in any of the Companies’ loans, debt\nsecurities, equity securities or assets, (iv) any proposal to seek representation on the board of directors of the Company or otherwise seek to control\nor influence the management, board of directors or policies of the Company, (v) any request or proposal to waive, terminate or amend the provisions\nof this Agreement or (vi) any proposal, arrangement or other statement that is inconsistent with the terms of this Agreement, including this\nSection 9(a);\n(b) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are defined or used in\nRegulation 14A of the Securities Exchange Act of 1934, as amended) to vote, or seek to advise or influence any Person with respect to the voting of,\nany voting securities of the Company.\n(c) instigate, encourage or assist any third party (including forming a “group” (as defined in Section 13(d)(3) of the Securities Exchange\nAct of 1934, as amended) with any such third party) to do, or enter into any discussions or agreements with any third party with respect to, any of the\nactions set forth in clause (a) or (b) above;\n(d) take any action which would reasonably be expected to require the Company or any of its Affiliates to make a public announcement\nregarding any of the actions set forth in clause (a) or (b) above; or\n(e) acquire (or propose or agree to acquire), of record or beneficially, by purchase or otherwise, any loans, debt securities, equity\nsecurities or assets of any of the Companies or rights or options to acquire interests in any of the Companies’ loans, debt securities, equity securities\nor assets.\nAs of the date of this Agreement, neither the Buyer nor any of its Controlled Affiliates owns any loans, debt securities, equity securities or assets of\nany of the Companies or rights or options to acquire interests in any of the Companies’ loans, debt securities, voting securities or assets.\nThe foregoing restrictions shall not apply to any of Buyer’s Representatives effecting or recommending transactions in securities (A) in the ordinary\ncourse of its business as an investment advisor, broker,\n5\ndealer in securities, market maker, specialist or block positioner and (B) not at the direction or request of Buyer or any of its Affiliates. The\nCompany acknowledges that certain of the Buyer’s Affiliates are engaged in trading activities in which such Affiliates may effect transactions in the\nsecurities of the Companies or other entities in the ordinary course of business. The Company hereby agrees that nothing in this Section 9 shall\nprohibit or restrict acquisitions in the aggregate of not more than 5% of the voting securities of the Company by such Affiliates in the ordinary\ncourse of their trading activities provided they occur without the use of or access to the Evaluation Material.\n(f) Notwithstanding the foregoing provisions of this Section 9:\n(i) Buyer and its Representatives may exercise voting rights pursuant to its ownership of any securities of the Companies at any\nregular or special meeting at which such other holders of the same class of securities are entitled to vote;\n(ii) shall not restrict Buyer or any of its Representatives from making any proposal regarding a possible Transaction to\nmanagement of the Company and its advisors or directly to the board of directors of the Company on a confidential basis if such proposal does not\nrequire the Company to make a public announcement regarding this Agreement, a possible Transaction or any of the matters described in this\nSection 9; provided, however, that, from and after the date on which the Company shall have recommended, publicly proposed or publicly\nannounced an intention to authorize, recommend or propose, or shall have entered into an agreement with any Person (other than Buyer or its\nAffiliates) to effect or participate in a transaction of the type contemplated by clause (a) above, any such communications may be made to\nmanagement of the Company and its advisors or directly to the board of directors of the Company without regard to whether to Company would or\nmight be required to make a public announcement with respect thereto until such time as such Transaction closes or is terminated or abandoned by\nthe parties thereto; and\n(iii) Buyer and its Representatives may purchase goods or services of the Companies or submit proposals for the purchase or sale\nof goods or services to the Companies in the ordinary course of business.\n10. Remedies. Each party agrees that money damages may not be a sufficient remedy for a breach or a threatened breach of this Agreement\nand that each party shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach or\nthreatened breach, in addition to all other remedies available at law or in equity. Such injunctive or other equitable relief shall be available without\nthe obligation to prove any damages underlying such breach or threatened breach. Each party agrees that it will not petition or otherwise attempt to\nrequire the posting of a bond or other security in connection with any attempt by any other party to seek such injunctive or other equitable relief. No\nfailure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial\nexercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event of any legal\nproceedings relating to this Agreement, the reasonable costs and expenses incurred by the prevailing party and its Representatives in connection with\nsuch proceedings, including attorney fees and disbursements, shall be reimbursed by the non-prevailing party.\n11. No Waiver of Privilege. To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, none of the\nCompanies waives or is waiving, and shall not be deemed to have waived or diminished, its attorney work-product protections, attorney-client\nprivileges or similar protections and privileges as a result of disclosing any Evaluation Material (including Evaluation Material related to pending or\nthreatened litigation) to Buyer or any of its Representatives.\n6\n12. Liability for Representatives. Buyer shall be liable for any breaches of this Agreement by any of its Representatives, except for breaches\ncommitted by any Representative that is party to either (a) a separate joinder agreement among such Representative, Buyer and the Company in the\nform set forth as Exhibit A hereto or (b) a separate mutually acceptable confidentiality agreement between such Representative and the Company\nwith respect to the Evaluation Material.\n13. Term. Except for Sections 6 (Destruction or Erasure of Evaluation Material) and 14(i) (Governing Law; Forum), which shall be binding in\nperpetuity or until the latest date permitted by Applicable Law, this Agreement shall expire upon the date that is two years after the date of this\nAgreement.\n14. Miscellaneous.\n(a) Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the matters set forth\nherein.\n(b) Data Site Provision. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed by\nany offering memorandum, web-based database or similar repository of Evaluation Material to which Buyer or any of its Representatives is granted\naccess in connection with the evaluation, negotiation or consummation of the Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that its confidentiality obligations with respect to the Evaluation Material are exclusively\ngoverned by this Agreement and may not be enlarged except by a written agreement that is hereafter executed by each of the parties hereto.\n(c) Competing Activities. Subject to Buyer’s compliance with its obligations with respect to the nondisclosure and use of the Evaluation\nMaterial, nothing in this Agreement shall prevent Buyer or any of its Representatives from evaluating a possible investment in and/or collaborating\nwith, or entering into any transaction with (including an investment in), or monitoring, managing, maintaining or otherwise acting with respect to an\ninvestment in, any Person whose business is similar to or competitive with the business of the Companies. The Company acknowledges that Buyer\nand its Representatives conduct business with many Persons, some of which may engage in or pursue businesses and strategies that are similar to or\ncompetitive with those of the Companies. Although Buyer is subject to the obligations set forth in this Agreement, the occurrence or existence of\nsuch similar or competitive activities shall not by itself be cause for any action or allegation by the Company that Buyer or any of its Representatives\nhas failed to observe any of the obligations set forth in this Agreement.\n(d) Ownership of Evaluation Material; No License. All Evaluation Material prepared by or on behalf of the Companies is and shall\nremain property of the applicable Companies. Buyer acknowledges and agrees that none of the Companies nor any of their respective\nRepresentatives grants any license or other property right or interest in, by implication or otherwise, any copyright, patent, trademark, mask work,\ndatabase or other intellectual or intangible property or proprietary information disclosed, embodied, fixed, comprised or contained in any Evaluation\nMaterial prepared by or on behalf of the Companies.\n7\n(e) Assignment; Successors. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by any party without\nthe prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and unenforceable. Any purchaser\nof the Company or all or substantially all of the assets of the Companies shall be entitled to the benefits of this Agreement, whether or not this\nAgreement is assigned to such purchaser.\n(f) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly signed\nand delivered by or on behalf of both Buyer and the Company.\n(g) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or\nenforceability of any other provision of this Agreement, unless the enforcement of such other provision in such circumstances would be inequitable.\n(h) No Obligation To Complete a Transaction. This Agreement is not intended to, and does not, constitute an agreement or impose any\nobligation on either party to (i) consummate a Transaction, (ii) conduct or continue discussions or negotiations concerning a Transaction, (iii) enter\ninto a joint venture or other business relationship of any kind or (iv) enter into or negotiate Definitive Transaction Agreements. Except with respect\nto the matters specifically set forth herein, neither party shall have any rights or obligations of any kind whatsoever with respect to a Transaction by\nvirtue of this Agreement or any other written or oral expression by the parties or their respective Representatives unless and until Definitive\nTransaction Agreements is executed and delivered. Buyer acknowledge that the Company reserves the right to (A) provide or not provide Evaluation\nMaterial to, and to request the destruction or erasure of Evaluation Material by, Buyer or any of its Representatives, (B) reject any proposals made by\nBuyer or any of its Representatives, (C) terminate discussions or negotiations with Buyer or any of its Representatives and (D) engage in discussions\nand/or negotiations, and to enter into any agreement, with any other Person, in each case in the Company’s sole discretion, without notice to Buyer\nor any of its Representatives, at any time and for any reason or no reason. Buyer shall not have any claim or cause of action against the Companies\nor any of their respective Representatives in respect of the foregoing, except as specifically set forth in any Definitive Transaction Agreement, if any,\nthat is hereafter executed.\n(i) Governing Law; Forum. This Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise\nout of or relate to this Agreement, or the negotiation, execution or performance of this Agreement shall be governed by, and construed in accordance\nwith, the laws of the State of Delaware. Each party consents and submits to the exclusive jurisdiction of the Delaware Court of Chancery, or in the\nevent that the Delaware Court of Chancery lacks jurisdiction, any other court of the State of Delaware for the adjudication of any action or legal\nproceeding relating to or arising out of this Agreement and the transactions contemplated hereby (and each party agrees not to commence any action\nor legal proceeding relating thereto except in any such court). Each party hereby irrevocably and unconditionally waives any objection which it may\nnow or hereafter have to the laying of venue in such courts and agrees not to plead or claim in any such court that any such action or legal\nproceeding brought in any such court has been brought in an inconvenient forum. Each party hereby agrees that service of any process, summons,\nnotice or document by U.S. registered mail addressed to such party shall be effective service of process for any such suit, action or proceeding\nbrought against such party in any such court. Each party hereto agrees that a final judgment in any such suit, action or proceeding brought in any\nsuch court shall be conclusive and binding upon such party and may be enforced in any other courts to whose jurisdiction such party is or may be\nsubject by suit upon such judgment.\n8\n(j) Waiver of Conflicts. Buyer hereby acknowledges that Dechert LLP (“Dechert”) represents the Company, and if for any reason\nDechert’s representation of the Company in negotiations with Buyer would create a conflict of interest, because of Dechert’s representation of Buyer\nin other unrelated matters or otherwise, Buyer hereby waives any such conflict and agrees that Dechert may represent the Company in connection\nwith the Transaction, including in any litigation that might result.\n(k) Counterparts. This Agreement may be signed in any number of counterparts (including by fax or PDF) with the same effect as if the\nsignatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. This\nAgreement shall become effective when, and only when, each party hereto shall have received a counterpart hereof signed by the other party hereto.\n9\nIf the foregoing correctly sets forth our agreement, please sign and return one copy of this Agreement to John B. Crowe, whereupon this Agreement\nshall constitute our binding agreement with respect to the matters set forth herein.\nVery truly yours,\nBUCKEYE TECHNOLOGIES INC.\nBy: /s/ John B. Crowe\nName: John B. Crowe\nTitle: Chairman of the Board and Chief Executive\nOfficer\nAccepted and agreed to\nas of the date first written above:\nGEORGIA-PACIFIC LLC\nBy: /s/ David G. Park\nName: David G. Park\nTitle: Senior Vice President – Strategy and\nBusiness Development\n10\nExhibit A\nJOINDER AGREEMENT\n[Date]\n[Name of Representative]\nBuckeye Technologies Inc.\n1001 Tillman Street\nMemphis, TN 38112\nAttention: John Crowe\nGeorgia-Pacific LLC\n133 Peachtree Street, N.E .\nAtlanta, GA 30303\nAttention: David G. Park\nLadies and Gentlemen:\nWe refer to the attached confidentiality agreement dated January 30, 2013 (the “Confidentiality Agreement”) between Georgia-Pacific LLC\n(“Buyer”) and Buckeye Technologies Inc. (the “Company”). Capitalized terms used below that are defined in the Confidentiality Agreement are\nused with the meanings given such terms in the Confidentiality Agreement.\nThe undersigned is a Representative of Buyer (“Buyer’s Representative”). Buyer’s Representative hereby agrees, for the benefit of Buyer and the\nCompany, to be bound on behalf of itself and its Representatives by the obligations with respect to Buyer’s Representatives contained in Sections 2,\n3, 6, and 7 of the Confidentiality Agreement (the “Obligations”) as if it were a party thereto.\nThe parties hereto acknowledge and agree that the signing of this agreement (this “Agreement”) does not obligate any Person to enter into the\nTransaction or to provide financing for the Transaction. Buyer acknowledges and agrees that Buyer ’s Representative shall not be restricted from\nbeing engaged or mandated by, or otherwise assisting or participating with, any other Person in any transaction that is similar to or competitive with\nthe Transaction, but Buyer’s Representative must comply with the Obligations as provided herein. Additionally, nothing herein or in the\nConfidentiality Agreement shall prohibit Buyer’s Representative from disclosing to any third party who contacts Buyer’s Representative to act as a\npotential financing source with respect to a transaction that is similar to or competitive with the Transaction, the fact that it is working with another\nPerson with respect to a transaction with the Company, so long as it keeps confidential the identity of Buyer and otherwise complies with the\nObligations.\nNo failure or delay by Buyer or the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof or preclude any\nother or further exercise thereof or the exercise of any other right, power or privilege hereunder.\nBuyer’s Representative agrees that money damages may not be a sufficient remedy for a breach or a threatened breach of this Agreement and that\nBuyer and the Company shall be entitled to seek specific\nperformance and injunctive or other equitable relief as a remedy for any such breach or threatened breach, in addition to all other remedies available\nat law or in equity. Such injunctive or other equitable relief shall be available without the obligation to prove any damages underlying such breach or\nthreatened breach. Each party agrees that it will not petition or otherwise attempt to require the posting of a bond or other security in connection with\nany attempt by any other party to seek such injunctive or other equitable relief.\nThis Agreement, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this Agreement, or\nthe negotiation, execution or performance of this Agreement shall be governed by, and construed in accordance with, the laws of the State of\nDelaware. Each party consents and submits to the exclusive jurisdiction of the Delaware Court of Chancery, or in the event that the Delaware Court\nof Chancery lacks jurisdiction, any other court of the State of Delaware for the adjudication of any action or legal proceeding relating to or arising\nout of this Agreement and the transactions contemplated hereby (and each party agrees not to commence any action or legal proceeding relating\nthereto except in any such court). Each party hereby irrevocably and unconditionally waives any objection which it may now or hereafter have to the\nlaying of venue in such courts and agrees not to plead or claim in any such court that any such action or legal proceeding brought in any such court\nhas been brought in an inconvenient forum. Each party hereby agrees that service of any process, summons, notice or document by U.S. registered\nmail addressed to such party shall be effective service of process for any such suit, action or proceeding brought against such party in any such court.\nEach party hereto agrees that a final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon\nsuch party and may be enforced in any other courts to whose jurisdiction such party is or may be subject by suit upon such judgment.\nThis Agreement may be signed in any number of counterparts (including by fax and PDF) with the same effect as if the signatures to each\ncounterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. This Agreement shall\nbecome effective when, and only when, each party hereto shall have received a counterpart hereof signed by the other parties hereto.\n[Signature page follows]\n2\nIf the foregoing correctly sets forth our agreement, please sign and return one copy of this Agreement to [CONTACT], whereupon this Agreement\nshall constitute our binding agreement with respect to the matters set forth herein.\nVery truly yours,\n[BUYER’S REPRESENTATIVE]\nBy:\nName:\nTitle:\nAccepted and agreed:\nGEORGIA-PACIFIC LLC\nBy:\nName:\nTitle:\nBUCKEYE TECHNOLOGIES INC.\nBy:\nName:\nTitle:\n3
+1bff75467e9f1585cf9913482d578d74.pdf	effective_date jurisdiction party term	EX-99.(D)(6) 14 d701401dex99d6.htm NON-DISCLOSURE AGREEMENT\nExhibit (d)(6)\nDecember 20, 2013\nPRIVATE AND CONFIDENTIAL\nMr. Mark Anderson, Managing Director\nMr. Lawrence Fey, Principal\nMr. Stephen Master, Vice President\nGTCR LLC\n300 N. LaSalle St.\nSuite 5600\nChicago, IL 60654\nRe: Non-Disclosure Agreement\nGentlemen:\nIn connection with your consideration of a potential consensual transaction negotiated directly by and between Vocus, Inc., a Delaware\ncorporation (“Vocus” and collectively with its subsidiaries, the “Company,” “we” or “our”), and you (a “Transaction”), we are prepared to make\ncertain information available to you concerning the business, financial condition, operations, assets, prospects and liabilities of the Company. As\na condition to our furnishing any such information to you and your Representatives (as defined below), you agree to treat such information in\nstrict confidence in accordance with the provisions of this Non-Disclosure Agreement (this “Agreement”), and to take or refrain from taking the\nother actions as hereinafter expressly set forth.\nAs used in this Agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and its and their respective\ndirectors, officers, general partners, managers, members, employees, agents and advisors (including, without limitation, financial advisors, legal\ncounsel and accountants), and with the written consent (including via email, which such consent shall not be unreasonably withheld or delayed)\nof the Company or as referenced on the attached Schedule A of this Agreement any consultants and potential financing sources; (ii) the term\n“affiliate” has the meaning given to that term in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as\namended (the “Exchange Act”); and (iii) the term “person” shall be broadly interpreted to mean all natural and legal persons, including, without\nlimitation, any company, corporation, general or limited partnership, limited liability company, trust, or other entity.\n1. Evaluation Material.\nAs used in this Agreement, the term “ Evaluation Material” means all information concerning the Company (whether furnished on or after\nthe date hereof, whether prepared by the Company, its Representatives or otherwise, whether or not marked as being confidential, and\nirrespective of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your\nRepresentatives by or on behalf of the Company. The term “Evaluation Material” also includes all notes, analyses, compilations, studies,\ninterpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the\ninformation that the Company or the\nNon-Disclosure Agreement\nPage 2\nCompany’s Representatives furnish to you or your Representatives. The term “Evaluation Material” does not include information that (a) has\nbecome generally known to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (b) was\nwithin your possession prior to it being furnished to you by or on behalf of the Company; provided, that the source of such information was not\nknown by you (or reasonably should be known by you) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Company or any other party with respect to such information, (c) has become available to you on a non-\nconfidential basis from a source other than the Company or any of the Company’s Representatives if such source is not known by you (and\nshould not reasonably be known by you) to be bound by a confidentiality agreement with, or any other contractual, legal, or fiduciary obligation\nof confidentiality to, the Company or any other party with respect to such information, or (d) was independently developed by you without\nreference to any confidential information disclosed by the Company.\n2. Evaluation Material and Confidentiality.\nYou and your Representatives shall use the Evaluation Material solely for the purpose of considering, evaluating and negotiating a\nTransaction, shall not use any of the Evaluation Material for any other purpose, shall keep the Evaluation Material strictly confidential, and,\nexcept as provided in this Section 2 and in Section 4, shall not disclose any of the Evaluation Material in any manner whatsoever without the\nprior written consent of the Company; provided, however, that the Evaluation Material may be disclosed to your Representatives who need to\nknow the information so disclosed for the purpose of evaluating or advising you with respect to considering, evaluating and negotiating a\nTransaction, and who are directed by you to keep such Evaluation Material confidential and who are provided with a copy of this Agreement.\nYou shall be responsible for any breach of this Agreement by any of your Representatives, and you agree, at your sole expense, to take all\ncommercially reasonable measures to assure that your Representatives do not make any prohibited or unauthorized disclosure or use (including\nin legal proceedings to the extent set forth in Section 4 of this Agreement) of the Evaluation Material. Without limiting the foregoing, neither you\nnor any of your affiliates or Representatives shall use any information obtained from the Evaluation Material to divert or attempt to divert any\nbusiness or customer of the Company, or otherwise use any such information competitively against the Company.\n3. Transaction Information, Discussions and Confidentiality.\nExcept as set forth in Sections 2 and 4 of this Agreement, you agree that without the prior written consent of Vocus, neither you nor any of\nyour Representatives shall disclose to any person the existence of this Agreement, the fact that the Evaluation Material exists or has been made\navailable to you or any of your Representatives, the fact that you have any interest in pursuing a Transaction involving the Company, the fact that\ndiscussions or negotiations concerning a Transaction are or may be taking place, or have taken place between you and the Company (and/or any\nof the Company’s Representatives), or any of the terms, conditions or other matters discussed between you and the Company (and/or any of the\nCompany’s Representatives) with respect thereto (the foregoing such information described in this sentence being hereafter referred to\ncollectively as “Transaction Information”). Without limiting the generality of the foregoing and for purposes of clarification, except with the\nprior written consent\nNon-Disclosure Agreement\nPage 3\nof Vocus, you agree that neither you nor any of your Representatives acting on your behalf shall enter into any discussions or any agreement,\nunderstanding, plan or arrangement with any person regarding any equity or co-investment participation by that person or others with you in a\nTransaction and you shall not enter into any exclusivity agreement or arrangement with respect to a Transaction with any bank or other debt\nfinancing source.\n4. Legally Compelled Disclosure.\nIf you or any of your Representatives are required, requested or compelled in any judicial, governmental, administrative or other legal\nproceeding, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose any Evaluation Material or any\nTransaction Information, you and such Representative shall first provide the Company with prompt written notice of any such requirement,\nrequest or compulsory demand, to the extent you or such Representatives may legally do so, so that the Company may seek, at the Company’s\nsole expense, a protective order or other appropriate remedy, and shall consult with the Company with respect to the Company or you or such\nRepresentative taking steps to seek to resist or narrow the scope of such required or requested disclosure. It in the absence of a protective order or\nother remedy or the receipt of a waiver by the Company, you or any of your Representatives determine, after consultation with and upon the\nadvice of legal counsel, that you or any such Representative are legally compelled to disclose Evaluation Material or Transaction Information to\nany tribunal or other public or governmental authority, or else stand liable for contempt or suffer other censure or penalty, you and any such\nRepresentative may disclose only that portion of the Evaluation Material or Transaction Information which you or any such Representative\ndetermine, after consultation with and upon the advice of legal counsel, is legally required to be disclosed; provided, that you or such\nRepresentative shall use commercially reasonable efforts to preserve the confidentiality of the Evaluation Material or Transaction Information so\ndisclosed, including, without limitation, by cooperating with the Company to obtain, at the Company’s sole expense, an appropriate protective\norder or other reliable assurance that confidential treatment will be accorded to the Evaluation Material or Transaction Information by such\ntribunal or other public or governmental authority.\n5. Termination of Discussions at Any Time Return of Evaluation Material.\nAt any time upon the request of the Company for any reason, you shall (and will direct your Representatives to) promptly, and in any event\nno later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all Evaluation Material (including all copies,\nextracts and other reproductions thereof, whether in paper, electronic or other form or media) furnished to you or your Representatives by or on\nbehalf of the Company pursuant to this Agreement; provided, however, that you and your Representatives shall be entitled to retain one complete\ncopy, in electronic archival storage form, of all Evaluation Material in accordance with document retention laws or regulations applicable to you\nand to such other persons, as the case may be, but only to the extent that appropriate personnel whose primary function within your organization\nand within the organizations of such other persons, as the case may be, is information technology or compliance in nature will have unrestricted\naccess to such retained information; and provided, further, however, that your legal counsel will be entitled to retain one complete copy of\nEvaluation Material in paper format as may be necessary to document your consideration of a Transaction for the purpose of establishing\ncompliance with any applicable\nNon-Disclosure Agreement\nPage 4\nlaws or regulations and for defending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this\nAgreement or the Evaluation Material; provided, that all such information shall continue to be kept confidential and shall be stored only in\ncounsel’s record archives to which access is not made generally available. The destruction of the Evaluation Material, including that prepared by\nyou or your Representatives, shall be certified in writing to the Company by an authorized representative supervising such destruction.\nNotwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your and their\nconfidentiality obligations hereunder.\n6. Privileged Information.\nThe furnishing to you or your Representatives of any Evaluation Material shall not be deemed to waive or in any manner diminish any\nattorney-client privilege, attorney work-product protection or other privilege or protection applicable to any such Evaluation Material. The\nparties hereto acknowledge and agree that, in connection with your consideration of the potential Transaction only and not for any other purpose,\nthey (a) are or may become joint defendants in legal proceedings to which such Evaluation Material relates, and (b) intend that all such privileges\nand protections shall remain intact should either party become subject to any legal proceedings to which such Evaluation Material is relevant. In\nfurtherance of the foregoing, each party hereto agrees not to claim or contend that the other party has waived any attorney-client privilege,\nattorney work-product protection or other protection or privilege by providing information pursuant to this Agreement or any subsequent\nagreement (definitive or otherwise) regarding a Transaction into which the parties hereafter may enter.\n7. No Representation or Warranty as to Accuracy and Completeness of Evaluation Material.\nThe Company reserves the right, in its sole discretion, to determine what information it will provide or withhold (and, if provided, the form\nthereof), as well as the times and locations at which it elects to make such information available. Neither the Company nor any of its\nRepresentatives has made, hereby makes or will make any representation or warranty, express or implied, as to the accuracy or completeness of\nany of the Evaluation Material, except as may be provided in a written definitive agreement between the parties. You acknowledge and agree that\nneither the Company nor any of its Representatives shall have any obligation or liability to you or to any of your Representatives relating to or\nresulting from the use (by you or any of your Representatives) of the Evaluation Material or any inaccuracies or errors therein or omissions\ntherefrom, except as may be provided in a written definitive agreement between the parties. You also acknowledge and agree that you are not\nentitled to rely on the accuracy or completeness of any Evaluation Material and that you shall be entitled to rely solely on such representations or\nwarranties of the Company as may be made in a definitive agreement, if any, relating to a Transaction, when, as and if, entered into by the parties\nhereto and thereto and subject to such qualifications, limitations and restrictions as may be expressly specified therein.\nNon-Disclosure Agreement\nPage 5\n8. Standstill.\nYou agree that for a period of eighteen (18) months from and after the date hereof (the “Standstill Period”), neither you nor any of your\naffiliates, directly or indirectly, shall:\n(a) acquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or\nright thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or\nexchange (“Voting Securities”), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the\nCompany;\n(b) enter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to any\nDerivative Securities (as defined below);\n(c) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” or “consents” (as such terms are used in the\nrules and published interpretations of the U.S. Securities and Exchange Commission (“SEC”)) to vote (or to withhold authority in\nrespect of or abstain from voting), or seek to advise or influence any person with respect to the voting of (or the withholding of\nauthority of or abstention from voting), any Voting Securities of the Company;\n(d) unless expressly invited to do so by the Board of Directors of Vocus (or any duly constituted committee thereof comprised wholly of\nindependent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates,\nRepresentatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent,\ninquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger,\nconsolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash\nor property distribution or any other extraordinary transaction involving the Company or any of the Company’s securities, assets or\nbusinesses;\n(e) form, join or in any way engage or participate in a “group,” (within the meaning of Section 13(d)(3) of the Exchange Act) in\nconnection with any Voting Securities of the Company;\n(f) act alone, or in concert with any other person(s), to seek to control or influence the management, board of directors, policies or affairs\nof the Company (including, without limitation, by seeking to place any individual on the Company’s board of directors, seeking to\nhave called any meeting of the Company’s stockholders or seeking to advise, encourage or influence any person with respect to the\nvoting of any securities of the Company for the election of individuals to the Company’s board of directors or to approve stockholder\nproposals);\nNon-Disclosure Agreement\nPage 6\n(g) take any action that might require the Company to make a public announcement regarding any of the types of matters set forth in\nclause “(a)” or “(d)” of this sentence;\n(h) request or propose that the Company or any of the Company’s Representatives amend or waive, or consider the amendment or waiver\nof, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public\ndisclosure of such request or proposal;\n(i) have any discussions or enter into any arrangements, understandings, plans, commitments or agreements (whether oral or written)\nwith, act as a financing source for or otherwise invest in any significant manner with respect to, or advise, assist or encourage, any\nperson in connection with any of the foregoing; or\n(j) at no time offer or communicate directly to the Company’s shareholders in the form of a tender offer, exchange offer or otherwise in\nrelation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your\ncontrolled affiliates) and the Company;\nprovided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement by Vocus that it\nhas entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity\nsecurities of Vocus or all or substantially all of the assets (on a consolidated basis) of the Company or (B) any person or group publicly\nannounces or commences a tender or exchange offer to acquire Voting Securities of Vocus, that, if successful, would result in such person or\ngroup beneficially owning more than 50% of the then outstanding Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to\nsuch tender or exchange offer that recommends that Vocus’ stockholders accept such offer. The expiration of the Standstill Period will not\nterminate or otherwise affect any of the other provisions of this Agreement.\nFor purposes of this Section 8, “Derivative Securities” means any securities that are the subject of any derivative or other transaction\nentered into by any person, which gives such person the economic equivalent of ownership of an amount of Company securities due to the fact\nthat the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether (i) such\nderivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is capable of\nbeing or required to be settled by the payment of cash or through the delivery of such securities.\n9. Effect of Agreement.\nNo agreement providing for any Transaction currently exists and none shall be deemed to exist between the parties hereto unless and until a\ndefinitive written agreement for any such Transaction is hereafter negotiated, executed and delivered with the intention of being legally binding\nupon the parties hereto and any other necessary parties thereto. The parties hereto agree that unless and until a definitive agreement between\nthem with respect to a Transaction has been executed and delivered by them and any such other parties, with the intention of being legally\nbinding as aforesaid, neither party nor any of their respective affiliates shall be under any\nNon-Disclosure Agreement\nPage 7\nobligation of any kind whatsoever with respect to a Transaction, including any obligation to commence or continue discussions or negotiations\nwith respect to a Transaction, by virtue of this Agreement or any other written or oral expression with respect to such a Transaction by the parties\nhereto or any of their Representatives. Without limiting the foregoing sentence (and subject to the provisions of Section 8 of this Agreement),\neach party hereto acknowledges and agrees that the other party hereto may disclose information about itself (if disclosed by you or your\nRepresentatives, to the extent not containing any Transaction Information or Evaluation Material, and if disclosed by the Company or its\nRepresentatives, to the extent not containing any Transaction Information) to, and enter into negotiations with, other persons or entities at any\ntime without any obligation to notify the other party hereto of such disclosure or negotiations.\n10. Designated Contact Persons.\nEach party to this Agreement and its Representatives will designate appropriate contact persons for due diligence purposes. All\ncommunications regarding a Transaction, requests for additional information, requests for facility tours or management meetings and discussions\nor questions regarding procedures, will be directed exclusively to such contact persons, and neither party hereto nor any of its Representatives\nacting on such party’s behalf will initiate or cause to be initiated any communication with any director, officer, employee, and to such person’s\nknowledge any advisor, agent or regulator of the other party hereto or its Representatives, other than such contact persons or any other person\ndirected by such contact persons, concerning the Evaluation Material (including any requests to obtain or discuss any Evaluation Material) or any\npossible Transaction. The contact person for the Company is: Jason Stack (jstack@stifel.com or 212-271-3868) or otherwise as directed in\nwriting by the Company.\n11. Non-Solicitation.\nYou agree that, except as provided in a definitive agreement relating to a Transaction, for a period of one (1) year following the date of this\nAgreement, you shall not, and you shall not authorize, instruct, encourage or facilitate the ability of any of your Representatives and any person\nacting on behalf of to, in any manner, directly or indirectly, solicit for hire any of the officers or employees of the Company with whom you had\ncontact or first became aware of during the process contemplated herein; provided, however, that the foregoing does not preclude you or your\nRepresentatives from: (a) soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that\nare not targeted specifically at the employees of the Company; or (b) soliciting or hiring employees whose employment has been terminated by\nthe Company.\n12. Securities Law Compliance.\nIt is expected that the Evaluation Material will contain material information about the Company that has not been disclosed by the\nCompany to the public generally. You hereby acknowledge that you are aware, and you agree to advise your Representatives who are informed\nas to the matters that are the subject of this Agreement, that the U.S. federal and many state securities laws prohibit any person who has received\nfrom an issuer material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling\nsecurities of such issuer or from communicating such information to any person under circumstances in which it is foreseeable that such person\nis reasonably likely to purchase or sell such securities.\nNon-Disclosure Agreement\nPage 8\n13. Remedies.\nThe Company and you each hereby acknowledge and agree that money damages would not be a sufficient remedy for breach of this\nAgreement by you or any of your Representatives or for breach of this Agreement by the Company or any of its Representatives and that\ntherefore, both the Company and you shall be entitled to seek equitable relief, including injunctions and specific performance, as a remedy for\nany such breach without necessity of posting any bond or other security, and without proof of any actual damages. Such remedies shall\nnonetheless not be deemed to be the exclusive remedies for a breach of this Agreement, and shall be in addition to all other remedies available to\nyou and to the Company at law or equity. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to receive\nfrom the other party the reasonable legal fees and expenses incurred by the prevailing party in connection with such litigation, including any\nappeal therefrom.\n14. Existing Portfolio Investments.\nThe Company (i) acknowledges that as part of your ordinary conduct of business that you may, from time to time, analyze and invest in\nsecurities, instruments, businesses and assets of companies and other persons engaged in the same or a substantially similar line of business as is\nengaged in and conducted by the Company and that your review of Evaluation Material upon the terms and subject to the conditions of this\nAgreement may serve to enhance your knowledge and understanding of the marketing services industry to an extent and in a manner that cannot\nbe separated from your own independent developed knowledge of such businesses and industries and (ii) agrees that, without limiting any of\nyour obligations under this Agreement and provided that you are not in breach of any of your obligations under this Agreement, including,\nwithout limitation, the last sentence of Section 2 of this Agreement, this Agreement is not intended to and shall not be deemed to restrict your use\nof such overall independently developed knowledge and understanding of the marketing services industry strictly for your own internal analytical\npurposes, including the purchase, sale and consideration of, and voting decisions relating to, existing portfolio company investments made by\nyou and your controlled affiliates.\nNotwithstanding anything in this Agreement to the contrary, the Company agrees that, to the extent you do not disclose the Evaluation\nMaterial or Transaction Information to entities controlled or otherwise managed, directly or indirectly, by you or your affiliates, none of the terms\nof this Agreement shall apply to such entities.\n15. Other Terms.\n(a) Waivers and Amendments. No failure or delay by any party to this Agreement in exercising any right, power or privilege hereunder\nshall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the\nexercise of any other right, power or privilege hereunder. This Agreement may only be amended by the execution and delivery of a\nwritten agreement to which you and the Company are signatories.\nNon-Disclosure Agreement\nPage 9\n(b) Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive\nlaws of the State of Delaware, without reference to the conflict of law principles of that state.\n(c) Consent to Jurisdiction. The parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of\nthe state courts of the State of Delaware or of the United States District Court for the District of Delaware for any actions, suits or\nproceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and further agree that service of\nany process, summons, notice or document by United States registered mail, postage prepaid, to their address set forth herein shall be\neffective service of process for any action, suit or proceeding brought against it in any such court. The parties to this Agreement\nhereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this\nAgreement or the transactions contemplated hereby, in the state courts of the State of Delaware or of the United States District Court\nfor the District of Delaware, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such\ncourt that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n(d) Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the confidentiality of\nTransaction Information and Evaluation Material, the standstill agreements, the no-solicitation agreement and the other covenants,\nundertakings and subject matter set forth in this Agreement.\n(e) Construction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this\nAgreement. Accordingly, the parties further agree that no presumption or burden of proof shall be raised in any question of\ninterpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision\nhereof.\n(f) Term. This Agreement, and the parties’ respective rights and obligations hereunder, shall terminate on the second anniversary of the\ndate hereof; provided that any Evaluation Material that is a trade secret shall remain confidential for so long as such Evaluation\nMaterial is considered a trade secret under applicable law.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter\nshall become a binding agreement between you and Vocus.\nVery truly yours,\nVocus, Inc.\nBy: /s/ Stephen A. Vintz\nName: Stephen A. Vintz\nTitle: Executive Vice President/Chief Financial Officer\nAccepted and agreed as of the date first written above.\nGTCR LLC\nBy:\n/s/ Joseph Navea\nName: Joseph Navea\nTitle:\nDocumentation Coordinator	EX-99.(D)(6) 14 d701401dex99d6.htm NON-DISCLOSURE AGREEMENT\nExhibit (d)(6)\nDecember 20, 2013\nPRIVATE AND CONFIDENTIAL\nMr. Mark Anderson, Managing Director\nMr. Lawrence Fey, Principal\nMr. Stephen Master, Vice President\nGTCRLLC\n300 N. LaSalle St.\nSuite 5600\nChicago, IL. 60654\nRe: Non-Disclosure Agreement\nGentlemen:\nIn connection with your consideration of a potential consensual transaction negotiated directly by and between Vocus, Inc., a Delaware\ncorporation (“Vocus” and collectively with its subsidiaries, the “Company,” “we” or “our”), and you (a “Transaction”), we are prepared to make\ncertain information available to you concerning the business, financial condition, operations, assets, prospects and liabilities of the Company. As\na condition to our furnishing any such information to you and your Representatives (as defined below), you agree to treat such information in\nstrict confidence in accordance with the provisions of this Non-Disclosure Agreement (this “Agreement”), and to take or refrain from taking the\nother actions as hereinafter expressly set forth.\n \n \nAs used in this Agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and its and their respective\ndirectors, officers, general partners, managers, members, employees, agents and advisors (including, without limitation, financial advisors, legal\ncounsel and accountants), and with the written consent (including via email, which such consent shall not be unreasonably withheld or delayed)\nof the Company or as referenced on the attached Schedule A of this Agreement any consultants and potential financing sources; (ii) the term\n“affiliate” has the meaning given to that term in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as\namended (the “Exchange Act”); and (iii) the term “person” shall be broadly interpreted to mean all natural and legal persons, including, without\nlimitation, any company, corporation, general or limited partnership, limited liability company, trust, or other entity.\n \n1. Evaluation Material.\nAs used in this Agreement, the term “Evaluation Material” means all information concerning the Company (whether furnished on or after\nthe date hereof, whether prepared by the Company, its Representatives or otherwise, whether or not marked as being confidential, and\nirrespective of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your\nRepresentatives by or on behalf of the Company. The term “Evaluation Material” also includes all notes, analyses, compilations, studies,\ninterpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the\ninformation that the Company or the\nNon-Disclosure Agreement\nPage 2\nCompany’s Representatives furnish to you or your Representatives. The term “Evaluation Material” does not include information that (a) has\nbecome generally known to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (b) was\nwithin your possession prior to it being furnished to you by or on behalf of the Company; provided, that the source of such information was not\nknown by you (or reasonably should be known by you) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Company or any other party with respect to such information, (c) has become available to you on a non-\nconfidential basis from a source other than the Company or any of the Company’s Representatives if such source is not known by you (and\nshould not reasonably be known by you) to be bound by a confidentiality agreement with, or any other contractual, legal, or fiduciary obligation\nof confidentiality to, the Company or any other party with respect to such information, or (d) was independently developed by you without\nreference to any confidential information disclosed by the Company.\n2. Evaluation Material and Confidentiality.\nYou and your Representatives shall use the Evaluation Material solely for the purpose of considering, evaluating and negotiating a\nTransaction, shall not use any of the Evaluation Material for any other purpose, shall keep the Evaluation Material strictly confidential, and,\nexcept as provided in this Section 2 and in Section 4, shall not disclose any of the Evaluation Material in any manner whatsoever without the\nprior written consent of the Company; provided, however, that the Evaluation Material may be disclosed to your Representatives who need to\nknow the information so disclosed for the purpose of evaluating or advising you with respect to considering, evaluating and negotiating a\nTransaction, and who are directed by you to keep such Evaluation Material confidential and who are provided with a copy of this Agreement.\nYou shall be responsible for any breach of this Agreement by any of your Representatives, and you agree, at your sole expense, to take all\ncommercially reasonable measures to assure that your Representatives do not make any prohibited or unauthorized disclosure or use (including\nin legal proceedings to the extent set forth in Section 4 of this Agreement) of the Evaluation Material. Without limiting the foregoing, neither you\nnor any of your affiliates or Representatives shall use any information obtained from the Evaluation Material to divert or attempt to divert any\nbusiness or customer of the Company, or otherwise use any such information competitively against the Company.\n3. Transaction Information, Discussions and Confidentiality.\nExcept as set forth in Sections 2 and 4 of this Agreement, you agree that without the prior written consent of Vocus, neither you nor any of\nyour Representatives shall disclose to any person the existence of this Agreement, the fact that the Evaluation Material exists or has been made\navailable to you or any of your Representatives, the fact that you have any interest in pursuing a Transaction involving the Company, the fact that\ndiscussions or negotiations concerning a Transaction are or may be taking place, or have taken place between you and the Company (and/or any\nof the Company’s Representatives), or any of the terms, conditions or other matters discussed between you and the Company (and/or any of the\nCompany’s Representatives) with respect thereto (the foregoing such information described in this sentence being hereafter referred to\ncollectively as “Transaction Information”). Without limiting the generality of the foregoing and for purposes of clarification, except with the\nprior written consent\nNon-Disclosure Agreement\nPage 3\nof Vocus, you agree that neither you nor any of your Representatives acting on your behalf shall enter into any discussions or any agreement,\nunderstanding, plan or arrangement with any person regarding any equity or co-investment participation by that person or others with you in a\nTransaction and you shall not enter into any exclusivity agreement or arrangement with respect to a Transaction with any bank or other debt\nfinancing source.\n4. Legally Compelled Disclosure.\nIf you or any of your Representatives are required, requested or compelled in any judicial, governmental, administrative or other legal\nproceeding, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose any Evaluation Material or any\nTransaction Information, you and such Representative shall first provide the Company with prompt written notice of any such requirement,\nrequest or compulsory demand, to the extent you or such Representatives may legally do so, so that the Company may seek, at the Company’s\nsole expense, a protective order or other appropriate remedy, and shall consult with the Company with respect to the Company or you or such\nRepresentative taking steps to seek to resist or narrow the scope of such required or requested disclosure. It in the absence of a protective order or\nother remedy or the receipt of a waiver by the Company, you or any of your Representatives determine, after consultation with and upon the\nadvice of legal counsel, that you or any such Representative are legally compelled to disclose Evaluation Material or Transaction Information to\nany tribunal or other public or governmental authority, or else stand liable for contempt or suffer other censure or penalty, you and any such\nRepresentative may disclose only that portion of the Evaluation Material or Transaction Information which you or any such Representative\ndetermine, after consultation with and upon the advice of legal counsel, is legally required to be disclosed; provided, that you or such\nRepresentative shall use commercially reasonable efforts to preserve the confidentiality of the Evaluation Material or Transaction Information so\ndisclosed, including, without limitation, by cooperating with the Company to obtain, at the Company’s sole expense, an appropriate protective\norder or other reliable assurance that confidential treatment will be accorded to the Evaluation Material or Transaction Information by such\ntribunal or other public or governmental authority.\n5. Termination of Discussions at Any Time Return of Evaluation Material.\nAt any time upon the request of the Company for any reason, you shall (and will direct your Representatives to) promptly, and in any event\nno later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all Evaluation Material (including all copies,\nextracts and other reproductions thereof, whether in paper, electronic or other form or media) furnished to you or your Representatives by or on\nbehalf of the Company pursuant to this Agreement; provided, however, that you and your Representatives shall be entitled to retain one complete\ncopy, in electronic archival storage form, of all Evaluation Material in accordance with document retention laws or regulations applicable to you\nand to such other persons, as the case may be, but only to the extent that appropriate personnel whose primary function within your organization\nand within the organizations of such other persons, as the case may be, is information technology or compliance in nature will have unrestricted\naccess to such retained information; and provided, further, however, that your legal counsel will be entitled to retain one complete copy of\nEvaluation Material in paper format as may be necessary to document your consideration of a Transaction for the purpose of establishing\ncompliance with any applicable\nNon-Disclosure Agreement\nPage 4\nlaws or regulations and for defending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this\nAgreement or the Evaluation Material; provided, that all such information shall continue to be kept confidential and shall be stored only in\ncounsel’s record archives to which access is not made generally available. The destruction of the Evaluation Material, including that prepared by\nyou or your Representatives, shall be certified in writing to the Company by an authorized representative supervising such destruction.\nNotwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your and their\nconfidentiality obligations hereunder.\n6. Privileged Information.\nThe furnishing to you or your Representatives of any Evaluation Material shall not be deemed to waive or in any manner diminish any\nattorney-client privilege, attorney work-product protection or other privilege or protection applicable to any such Evaluation Material. The\nparties hereto acknowledge and agree that, in connection with your consideration of the potential Transaction only and not for any other purpose,\nthey (a) are or may become joint defendants in legal proceedings to which such Evaluation Material relates, and (b) intend that all such privileges\nand protections shall remain intact should either party become subject to any legal proceedings to which such Evaluation Material is relevant. In\nfurtherance of the foregoing, each party hereto agrees not to claim or contend that the other party has waived any attorney-client privilege,\nattorney work-product protection or other protection or privilege by providing information pursuant to this Agreement or any subsequent\nagreement (definitive or otherwise) regarding a Transaction into which the parties hereafter may enter.\nThe Company reserves the right, in its sole discretion, to determine what information it will provide or withhold (and, if provided, the form\nthereof), as well as the times and locations at which it elects to make such information available. Neither the Company nor any of its\nRepresentatives has made, hereby makes or will make any representation or warranty, express or implied, as to the accuracy or completeness of\nany of the Evaluation Material, except as may be provided in a written definitive agreement between the parties. You acknowledge and agree that\nneither the Company nor any of its Representatives shall have any obligation or liability to you or to any of your Representatives relating to or\nresulting from the use (by you or any of your Representatives) of the Evaluation Material or any inaccuracies or errors therein or omissions\ntherefrom, except as may be provided in a written definitive agreement between the parties. You also acknowledge and agree that you are not\nentitled to rely on the accuracy or completeness of any Evaluation Material and that you shall be entitled to rely solely on such representations or\nwarranties of the Company as may be made in a definitive agreement, if any, relating to a Transaction, when, as and if, entered into by the parties\nhereto and thereto and subject to such qualifications, limitations and restrictions as may be expressly specified therein.\nNon-Disclosure Agreement Page 5\n8. Standstill. You agree that for a period of eighteen (18) months from and after the date hereof (the “Standstill Period”), neither you nor any of your affiliates, directly or indirectly, shall: (a)\n(b)\n(©)\n(d)\n(e)\n()\nacquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or\nright thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or\nexchange (“Voting Securities”), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the\nCompany;\nenter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to any\nDerivative Securities (as defined below);\nmake or in any way participate, directly or indirectly, in any “solicitation” of “proxies” or “consents” (as such terms are used in the\nrules and published interpretations of the U.S. Securities and Exchange Commission (“SEC”)) to vote (or to withhold authority in\nrespect of or abstain from voting), or seek to advise or influence any person with respect to the voting of (or the withholding of\nauthority of or abstention from voting), any Voting Securities of the Company;\n \nunless expressly invited to do so by the Board of Directors of Vocus (or any duly constituted committee thereof comprised wholly of\nindependent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates,\nRepresentatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent,\ninquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger,\nconsolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash\nor property distribution or any other extraordinary transaction involving the Company or any of the Company’s securities, assets or\nbusinesses;\nform, join or in any way engage or participate in a “group,” (within the meaning of Section 13(d)(3) of the Exchange Act) in\nconnection with any Voting Securities of the Company;\nact alone, or in concert with any other person(s), to seek to control or influence the management, board of directors, policies or affairs\nof the Company (including, without limitation, by seeking to place any individual on the Company’s board of directors, seeking to\nhave called any meeting of the Company’s stockholders or seeking to advise, encourage or influence any person with respect to the\nvoting of any securities of the Company for the election of individuals to the Company’s board of directors or to approve stockholder\nproposals);\nNon-Disclosure Agreement\nPage 6\n(g) take any action that might require the Company to make a public announcement regarding any of the types of matters set forth in\nclause “(a)” or “(d)” of this sentence;\n(h) request or propose that the Company or any of the Company’s Representatives amend or waive, or consider the amendment or waiver\nof, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public\ndisclosure of such request or proposal;\n(i) have any discussions or enter into any arrangements, understandings, plans, commitments or agreements (whether oral or written)\nwith, act as a financing source for or otherwise invest in any significant manner with respect to, or advise, assist or encourage, any\nperson in connection with any of the foregoing; or\n(G) atno time offer or communicate directly to the Company’s shareholders in the form of a tender offer, exchange offer or otherwise in\nrelation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your\ncontrolled affiliates) and the Company;\nprovided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement by Vocus that it\nhas entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity\nsecurities of Vocus or all or substantially all of the assets (on a consolidated basis) of the Company or (B) any person or group publicly\nannounces or commences a tender or exchange offer to acquire Voting Securities of Vocus, that, if successful, would result in such person or\ngroup beneficially owning more than 50% of the then outstanding Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to\nsuch tender or exchange offer that recommends that Vocus’ stockholders accept such offer. The expiration of the Standstill Period will not\nterminate or otherwise affect any of the other provisions of this Agreement.\nFor purposes of this Section 8, “Derivative Securities” means any securities that are the subject of any derivative or other transaction\nentered into by any person, which gives such person the economic equivalent of ownership of an amount of Company securities due to the fact\nthat the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether (i) such\nderivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is capable of\nbeing or required to be settled by the payment of cash or through the delivery of such securities.\n9. Effect of Agreement.\nNo agreement providing for any Transaction currently exists and none shall be deemed to exist between the parties hereto unless and until a\ndefinitive written agreement for any such Transaction is hereafter negotiated, executed and delivered with the intention of being legally binding\nupon the parties hereto and any other necessary parties thereto. The parties hereto agree that unless and until a definitive agreement between\nthem with respect to a Transaction has been executed and delivered by them and any such other parties, with the intention of being legally\nbinding as aforesaid, neither party nor any of their respective affiliates shall be under any\nNon-Disclosure Agreement\nPage 7\nobligation of any kind whatsoever with respect to a Transaction, including any obligation to commence or continue discussions or negotiations\nwith respect to a Transaction, by virtue of this Agreement or any other written or oral expression with respect to such a Transaction by the parties\nhereto or any of their Representatives. Without limiting the foregoing sentence (and subject to the provisions of Section 8 of this Agreement),\neach party hereto acknowledges and agrees that the other party hereto may disclose information about itself (if disclosed by you or your\nRepresentatives, to the extent not containing any Transaction Information or Evaluation Material, and if disclosed by the Company or its\nRepresentatives, to the extent not containing any Transaction Information) to, and enter into negotiations with, other persons or entities at any\ntime without any obligation to notify the other party hereto of such disclosure or negotiations.\n10. Designated Contact Persons.\nEach party to this Agreement and its Representatives will designate appropriate contact persons for due diligence purposes. All\ncommunications regarding a Transaction, requests for additional information, requests for facility tours or management meetings and discussions\nor questions regarding procedures, will be directed exclusively to such contact persons, and neither party hereto nor any of its Representatives\nacting on such party’s behalf will initiate or cause to be initiated any communication with any director, officer, employee, and to such person’s\nknowledge any advisor, agent or regulator of the other party hereto or its Representatives, other than such contact persons or any other person\ndirected by such contact persons, concerning the Evaluation Material (including any requests to obtain or discuss any Evaluation Material) or any\npossible Transaction. The contact person for the Company is: Jason Stack (jstack@stifel.com or 212-271-3868) or otherwise as directed in\nwriting by the Company.\n11. Non-Solicitation.\nYou agree that, except as provided in a definitive agreement relating to a Transaction, for a period of one (1) year following the date of this\nAgreement, you shall not, and you shall not authorize, instruct, encourage or facilitate the ability of any of your Representatives and any person\nacting on behalf of to, in any manner, directly or indirectly, solicit for hire any of the officers or employees of the Company with whom you had\ncontact or first became aware of during the process contemplated herein; provided, however, that the foregoing does not preclude you or your\nRepresentatives from: (a) soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that\nare not targeted specifically at the employees of the Company; or (b) soliciting or hiring employees whose employment has been terminated by\nthe Company.\n12. Securities Law Compliance.\nIt is expected that the Evaluation Material will contain material information about the Company that has not been disclosed by the\nCompany to the public generally. You hereby acknowledge that you are aware, and you agree to advise your Representatives who are informed\nas to the matters that are the subject of this Agreement, that the U.S. federal and many state securities laws prohibit any person who has received\nfrom an issuer material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling\nsecurities of such issuer or from communicating such information to any person under circumstances in which it is foreseeable that such person\nis reasonably likely to purchase or sell such securities.\nNon-Disclosure Agreement\nPage 8\n13. Remedies.\nThe Company and you each hereby acknowledge and agree that money damages would not be a sufficient remedy for breach of this\nAgreement by you or any of your Representatives or for breach of this Agreement by the Company or any of its Representatives and that\ntherefore, both the Company and you shall be entitled to seek equitable relief, including injunctions and specific performance, as a remedy for\nany such breach without necessity of posting any bond or other security, and without proof of any actual damages. Such remedies shall\nnonetheless not be deemed to be the exclusive remedies for a breach of this Agreement, and shall be in addition to all other remedies available to\nyou and to the Company at law or equity. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to receive\nfrom the other party the reasonable legal fees and expenses incurred by the prevailing party in connection with such litigation, including any\nappeal therefrom.\n14. Existing Portfolio Investments.\nThe Company (i) acknowledges that as part of your ordinary conduct of business that you may, from time to time, analyze and invest in\nsecurities, instruments, businesses and assets of companies and other persons engaged in the same or a substantially similar line of business as is\nengaged in and conducted by the Company and that your review of Evaluation Material upon the terms and subject to the conditions of this\nAgreement may serve to enhance your knowledge and understanding of the marketing services industry to an extent and in a manner that cannot\nbe separated from your own independent developed knowledge of such businesses and industries and (ii) agrees that, without limiting any of\nyour obligations under this Agreement and provided that you are not in breach of any of your obligations under this Agreement, including,\nwithout limitation, the last sentence of Section 2 of this Agreement, this Agreement is not intended to and shall not be deemed to restrict your use\nof such overall independently developed knowledge and understanding of the marketing services industry strictly for your own internal analytical\npurposes, including the purchase, sale and consideration of, and voting decisions relating to, existing portfolio company investments made by\nyou and your controlled affiliates.\nNotwithstanding anything in this Agreement to the contrary, the Company agrees that, to the extent you do not disclose the Evaluation\nMaterial or Transaction Information to entities controlled or otherwise managed, directly or indirectly, by you or your affiliates, none of the terms\nof this Agreement shall apply to such entities.\n15. Other Terms.\n(a) Waivers and Amendments. No failure or delay by any party to this Agreement in exercising any right, power or privilege hereunder\nshall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the\nexercise of any other right, power or privilege hereunder. This Agreement may only be amended by the execution and delivery of a\nwritten agreement to which you and the Company are signatories.\nNon-Disclosure Agreement Page 9\n(b)\n(©)\n(d)\n(e)\n()\nGoverning Law. This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive\nlaws of the State of Delaware, without reference to the conflict of law principles of that state.\nConsent to Jurisdiction. The parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of\nthe state courts of the State of Delaware or of the United States District Court for the District of Delaware for any actions, suits or\nproceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and further agree that service of\nany process, summons, notice or document by United States registered mail, postage prepaid, to their address set forth herein shall be\neffective service of process for any action, suit or proceeding brought against it in any such court. The parties to this Agreement\nhereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this\nAgreement or the transactions contemplated hereby, in the state courts of the State of Delaware or of the United States District Court\nfor the District of Delaware, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such\ncourt that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\nEntire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the confidentiality of\nTransaction Information and Evaluation Material, the standstill agreements, the no-solicitation agreement and the other covenants,\nundertakings and subject matter set forth in this Agreement.\nConstruction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this\nAgreement. Accordingly, the parties further agree that no presumption or burden of proof shall be raised in any question of\ninterpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision\nhereof.\nTerm. This Agreement, and the parties’ respective rights and obligations hereunder, shall terminate on the second anniversary of the\ndate hereof; provided that any Evaluation Material that is a trade secret shall remain confidential for so long as such Evaluation\nMaterial is considered a trade secret under applicable law.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter shall become a binding agreement between you and Vocus. Accepted and agreed as of the date first written above. GTCRLLC\nBy: /s/ Joseph Navea\nName: Joseph Navea\nTitle:\nDocumentation Coordinator\nVery truly yours,\nVocus, Inc.\nBy:  /s/ Stephen A. Vintz\nName: Stephen A. Vintz\nTitle: Executive Vice President/Chief Financial Officer	EX-99.(D)(6) 14 d701401dex99d6.htn NON-DISCLOSURE AGREEMENT\nExhibit (d)(6)\nDecember 20, 2013\nPRIVATE AND CONFIDENTIAL\nMr. Mark Anderson, Managing Director\nMr. Lawrence Fey, Principal\nMr. Stephen Master, Vice President\nGTCR LLC\n300 N. LaSalle St.\nSuite 5600\nChicago, IL 60654\nRe: Non-Disclosure Agreement\nGentlemen:\nIn connection with your consideration of a potential consensual transaction negotiated directly by and between Vocus, Inc., a Delaware\ncorporation ("Vocus" and collectively with its subsidiaries, the "Company," "'we" or "our"), and you (a "Transaction"), we are prepared to make\ncertain\ninformation available to you concerning the business, financial condition, operations, assets, prospects and liabilities of the Company.\nAs\na condition to our furnishing any such information to you and your Representatives (as defined below), you agree to treat such information in\nstrict confidence in accordance with the provisions of this Non-Disclosure Agreement (this "Agreement"), and to take or refrain from taking the\nother actions as hereinafter expressly set forth.\nAs used in this Agreement, (i) the term "Representative" means, as to any person, such person's affiliates and its and their respective\ndirectors, officers, general partners, managers, members, employees, agents and advisors (including, without limitation, financial advisors, legal\ncounsel and accountants), and with the written consent (including via email, which such consent shall not be unreasonably withheld or delayed)\nof the Company or as referenced on the attached Schedule A of this Agreement any consultants and potential financing sources; (ii) the term\n"affiliate"\nhas\nthe\nmeaning\ngiven\nto\nthat\nterm\nin\nRule\n12b-2\nof\nthe\nGeneral\nRules\nand\nRegulations\nunder\nthe\nSecurities\nExchange\nAct\nof\n1934,\nas\namended (the "Exchange Act"); and (iii) the term "person" shall be broadly interpreted to mean all natural and legal persons, including, without\nlimitation, any company, corporation, general or limited partnership, limited liability company, trust, or other entity.\n1. Evaluation Material.\nAs used in this Agreement, the term "Evaluation Material" means all information concerning the Company (whether furnished on or after\nthe date hereof, whether prepared by the Company, its Representatives or otherwise, whether or not marked as being confidential, and\nirrespective of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your\nRepresentatives by or on behalf of the Company. The term "Evaluation Material" also includes all notes, analyses, compilations, studies,\ninterpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the\ninformation that the Company or the\nNon-Disclosure Agreement\nPage 2\nCompany's Representatives furnish to you or your Representatives. The term "Evaluation Material" does not include information that (a)\nhas\nbecome generally known to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (b) was\nwithin your possession prior to it being furnished to you by or on behalf of the Company; provided, that the source of such information\nwas\nnot\nknown by you (or reasonably should be known by you) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Company or any other party with respect to such information, (c) has become available to you on a non-\nconfidential basis from a source other than the Company or any of the Company's Representatives if such source is not known by you (and\nshould not reasonably be known by you) to be bound by a confidentiality agreement with, or any other contractual, legal, or fiduciary obligation\nof confidentiality to, the Company or any other party with respect to such information, or (d) was independently developed by you without\nreference to any confidential information disclosed by the Company.\n2. Evaluation Material and Confidentiality..\nYou and your Representatives shall use the Evaluation Material solely for the purpose of considering, evaluating and negotiating a\nTransaction, shall not use any of the Evaluation Material for any other purpose, shall keep the Evaluation Material strictly confidential, and,\nexcept as provided in this Section 2 and in Section 4, shall not disclose any of the Evaluation Material in any manner whatsoever without the\nprior written consent of the Company; provided, however, that the Evaluation Material may be disclosed to your Representatives who need\nto\nknow the information so disclosed for the purpose of evaluating or advising you with respect to considering, evaluating and negotiating a\nTransaction,\nand who are directed by you to keep such Evaluation Material confidential and who are provided with a copy of this Agreement.\nYou shall be responsible for any breach of this Agreement by any of your Representatives, and you agree, at your sole expense, to take all\ncommercially reasonable measures to assure that your Representatives do not make any prohibited or unauthorized disclosure or use (including\nin legal proceedings to the extent set forth in Section 4 of this Agreement) of the Evaluation Material. Without limiting the foregoing, neither you\nnor any of your affiliates or Representatives shall use any information obtained from the Evaluation Material to divert or attempt to divert any\nbusiness or customer of the Company, or otherwise use any such information competitively against the Company.\n3. Transaction Information, Discussions and Confidentiality.\nExcept as set forth in Sections 2 and 4 of this Agreement, you agree that without the prior written consent of Vocus, neither you nor any of\nyour Representatives shall disclose to any person the existence of this Agreement, the fact that the Evaluation Material exists or has been made\navailable to you or any of your Representatives, the fact that you have any interest in pursuing a Transaction involving the Company, the fact that\ndiscussions or negotiations concerning a Transaction are or may be taking place, or have taken place between you and the Company (and/or\nany\nof the Company's Representatives), or any of the terms, conditions or other matters discussed between you and the Company (and/or any of the\nCompany's Representatives) with respect thereto (the foregoing such information described in this sentence being hereafter referred to\ncollectively as "Transaction Information"). Without limiting the generality of the foregoing and for purposes of clarification, except with the\nprior written consent\nNon-Disclosure Agreement\nPage 3\nof Vocus, you agree that neither you nor any of your Representatives acting on your behalf shall enter into any discussions or any agreement,\nunderstanding, plan or arrangement with any person regarding any equity or co-investment participation by that person or others with you\nin\na\nTransaction and you shall not enter into any exclusivity agreement or arrangement with respect to a Transaction with any bank or other debt\nfinancing source.\n4. Legally Compelled Disclosure.\nIf you or any of your Representatives are required, requested or compelled in any judicial, governmental, administrative or other legal\nproceeding, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose any Evaluation Material or any\nTransaction Information, you and such Representative shall first provide the Company with prompt written notice of any such requirement,\nrequest or compulsory demand, to the extent you or such Representatives may legally do so, so that the Company may seek, at the Company's\nsole expense, a protective order or other appropriate remedy, and shall consult with the Company with respect to the Company or you or such\nRepresentative taking steps to seek to resist or narrow the scope of such required or requested disclosure. It in the absence of a protective order or\nother remedy or the receipt of a waiver by the Company, you or any of your Representatives determine, after consultation with and upon the\nadvice of legal counsel, that you or any such Representative are legally compelled to disclose Evaluation Material or Transaction Information to\nany tribunal or other public or governmental authority, or else stand liable for contempt or suffer other censure or penalty, you and any such\nRepresentative may disclose only that portion of the Evaluation Material or Transaction Information which you or any such Representative\ndetermine, after consultation with and upon the advice of legal counsel, is legally required to be disclosed; provided, that you or such\nRepresentative shall use commercially reasonable efforts to preserve the confidentiality of the Evaluation Material or Transaction Information\nso\ndisclosed, including, without limitation, by cooperating with the Company to obtain, at the Company's sole expense, an appropriate protective\norder or other reliable assurance that confidential treatment will be accorded to the Evaluation Material or Transaction Information by such\ntribunal or other public or governmental authority.\n5. Termination of Discussions at Any Time Return of Evaluation Material.\nAt any time upon the request of the Company for any reason, you shall (and will direct your Representatives to) promptly, and in any event\nno\nlater than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all Evaluation Material (including all copies,\nextracts and other reproductions thereof, whether in paper, electronic or other form or media) furnished to you or your Representatives by or on\nbehalf of the Company pursuant to this Agreement; provided, however, that you and your Representatives shall be entitled to retain one complete\ncopy, in electronic archival storage form, of all Evaluation Material in accordance with document retention laws or regulations applicable to you\nand to such other persons, as the case may be, but only to the extent that appropriate personnel whose primary function within your organization\nand within the organizations of such other persons, as the case may be, is information technology or compliance in nature will have unrestricted\naccess\nto such retained information; and provided, further, however, that your legal counsel will be entitled to retain one complete copy of\nEvaluation Material in paper format as may be necessary to document your consideration of a Transaction for the purpose of establishing\ncompliance with any applicable\nNon-Disclosure Agreement\nPage 4\nlaws or regulations and for defending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this\nAgreement or the Evaluation Material; provided, that all such information shall continue to be kept confidential and shall be stored only\nin\ncounsel's record archives to which access is not made generally available. The destruction of the Evaluation Material, including that prepared by\nyou or your Representatives, shall be certified in writing to the Company by an authorized representative supervising such destruction.\nNotwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your and their\nconfidentiality obligations hereunder.\n6. Privileged Information.\nThe furnishing to you or your Representatives of any Evaluation Material shall not be deemed to waive or in any manner diminish any\nattorney-client privilege, attorney work-product protection or other privilege or protection applicable to any such Evaluation Material. The\nparties hereto acknowledge and agree that, in connection with your consideration of the potential Transaction only and not for any other purpose,\nthey (a) are or may become joint defendants in legal proceedings to which such Evaluation Material relates, and (b) intend that all such privileges\nand protections shall remain intact should either party become subject to any legal proceedings to which such Evaluation Material is relevant. In\nfurtherance of the foregoing, each party hereto agrees not to claim or contend that the other party has waived any attorney-client privilege,\nattorney work-product protection or other protection or privilege by providing information pursuant to this Agreement or any subsequent\nagreement (definitive or otherwise) regarding a Transaction into which the parties hereafter may enter.\n7. No Representation or Warranty as to Accuracy. and Completeness of Evaluation Material.\nThe Company reserves the right, in its sole discretion, to determine what information it will provide or withhold (and, if provided, the form\nthereof), as well as the times and locations at which it elects to make such information available. Neither the Company nor any of its\nRepresentatives has made, hereby makes or will make any representation or warranty, express or implied, as to the accuracy or completeness of\nany of the Evaluation Material, except as may be provided in a written definitive agreement between the parties. You acknowledge\nand\nagree\nthat\nneither the Company nor any of its Representatives shall have any obligation or liability to you or to any of your Representatives relating to or\nresulting from the use (by you or any of your Representatives) of the Evaluation Material or any inaccuracies or errors therein or omissions\ntherefrom, except as may be provided in a written definitive agreement between the parties. You also acknowledge and agree that you are not\nentitled to rely on the accuracy or completeness of any Evaluation Material and that you shall be entitled to rely solely on such representations\nor\nwarranties of the Company as may be made in a definitive agreement, if any, relating to a Transaction, when, as and if, entered into by the parties\nhereto and thereto and subject to such qualifications, limitations and restrictions as may be expressly specified therein.\nNon-Disclosure Agreement\nPage 5\n8. Standstill.\nYou agree that for a period of eighteen (18) months from and after the date hereof (the "Standstill Period"), neither you nor any of your\naffiliates, directly or indirectly, shall:\n(a)\nacquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or\nright thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or\nexchange ("Voting Securities"), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the\nCompany;\n(b)\nenter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to any\nDerivative Securities (as defined below);\n(c)\nmake or in any way participate, directly or indirectly, in any "solicitation" of "proxies" or "consents" (as such terms are used in the\nrules and published interpretations of the U.S. Securities and Exchange Commission ("SEC")) to vote (or to withhold authority in\nrespect of or abstain from voting), or seek to advise or influence any person with respect to the voting of (or the withholding of\nauthority of or abstention from voting), any Voting Securities of the Company;\n(d)\nunless expressly invited to do so by the Board of Directors of Vocus (or any duly constituted committee thereof comprised wholly of\nindependent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates,\nRepresentatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent,\ninquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger,\nconsolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash\nor\nproperty distribution or any other extraordinary transaction involving the Company or any of the Company's securities, assets or\nbusinesses;\n(e)\nform, join or in any way engage or participate in a "group," (within the meaning of Section 13(d)(3) of the Exchange Act) in\nconnection with any Voting Securities of the Company;\n(f) act alone, or in concert with any other person(s), to seek to control or influence the management, board of directors, policies or affairs\nof the Company (including, without limitation, by seeking to place any individual on the Company's board of directors, seeking to\nhave called any meeting of the Company's stockholders or seeking to advise, encourage or influence any person with respect to the\nvoting of any securities of the Company for the election of individuals to the Company's board of directors or to approve stockholder\nproposals);\nNon-Disclosure Agreement\nPage 6\n(g)\ntake any action that might require the Company to make a public announcement regarding any of the types of matters set forth in\nclause "(a)" or "(d)" of this sentence;\n(h)\nrequest or propose that the Company or any of the Company's Representatives amend or waive, or consider the amendment or waiver\nof, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public\ndisclosure of such request or proposal;\n(i)\nhave any discussions or enter into any arrangements, understandings, plans, commitments or agreements (whether oral or written)\nwith, act as a financing source for or otherwise invest in any significant manner with respect to, or advise, assist or encourage, any\nperson in connection with any of the foregoing; or\n(j)\nat no time offer or communicate directly to the Company's shareholders in the form of a tender offer, exchange offer or otherwise in\nrelation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your\ncontrolled affiliates) and the Company;\nprovided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement by Vocus that it\nhas entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity\nsecurities of Vocus or all or substantially all of the assets (on a consolidated basis) of the Company or (B) any person or group publicly\nannounces or commences a tender or exchange offer to acquire Voting Securities of Vocus, that, if successful, would result in such person or\ngroup beneficially owning more than 50% of the then outstanding Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to\nsuch tender or exchange offer that recommends that Vocus' stockholders accept such offer. The expiration of the Standstill Period will not\nterminate or otherwise affect any of the other provisions of this Agreement.\nFor purposes of this Section 8, "Derivative Securities" means any securities that are the subject of any derivative or other transaction\nentered into by any person, which gives such person the economic equivalent of ownership of an amount of Company securities due to the fact\nthat the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether (i) such\nderivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is capable of\nbeing or required to be settled by the payment of cash or through the delivery of such securities.\n9. Effect of Agreement.\nNo agreement providing for any Transaction currently exists and none shall be deemed to exist between the parties hereto unless and until a\ndefinitive written agreement for any such Transaction is hereafter negotiated, executed and delivered with the intention of being legally binding\nupon the parties hereto and any other necessary parties thereto. The parties hereto agree that unless and until a definitive agreement between\nthem with respect to a Transaction has been executed and delivered by them and any such other parties, with the intention of being legally\nbinding as aforesaid, neither party nor any of their respective affiliates shall be under any\nNon-Disclosure Agreement\nPage 7\nobligation of any kind whatsoever with respect to a Transaction, including any obligation to commence or continue discussions or negotiations\nwith respect to a Transaction, by virtue of this Agreement or any other written or oral expression with respect to such a Transaction by the parties\nhereto or any of their Representatives. Without limiting the foregoing sentence (and subject to the provisions of Section 8 of\nthis\nAgreement),\neach party hereto acknowledges and agrees that the other party hereto may disclose information about itself (if disclosed by you or your\nRepresentatives, to the extent not containing any Transaction Information or Evaluation Material, and if disclosed by the Company or its\nRepresentatives, to the extent not containing any Transaction Information) to, and enter into negotiations with, other persons or entities at any\ntime without any obligation to notify the other party hereto of such disclosure or negotiations.\n10. Designated Contact Persons.\nEach party to this Agreement and its Representatives will designate appropriate contact persons for due diligence purposes. All\ncommunications regarding a Transaction, requests for additional information, requests for facility tours or management meetings and discussions\nor questions regarding procedures, will be directed exclusively to such contact persons, and neither party hereto nor any of its Representatives\nacting on such party's behalf will initiate or cause to be initiated any communication with any director, officer, employee, and to such person's\nknowledge any advisor, agent or regulator of the other party hereto or its Representatives, other than such contact persons or any other person\ndirected by such contact persons, concerning the Evaluation Material (including any requests to obtain or discuss any Evaluation Material) or any\npossible Transaction. The contact person for the Company is: Jason Stack (jstack@stifel.com or 212-271-3868) or otherwise as directed in\nwriting by the Company.\n11. Non-Solicitation.\nYou agree that, except as provided in a definitive agreement relating to a Transaction, for a period of one (1) year following the date of this\nAgreement, you shall not, and you shall not authorize, instruct, encourage or facilitate the ability of any of your Representatives and any person\nacting on behalf of to, in any manner, directly or indirectly, solicit for hire any of the officers or employees of the Company with\nwhom\nyou\nhad\ncontact or first became aware of during the process contemplated herein; provided, however, that the foregoing does not preclude you or your\nRepresentatives from: (a) soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that\nare not targeted specifically at the employees of the Company; or (b) soliciting or hiring employees whose employment has been terminated by\nthe Company.\n12. Securities Law Compliance.\nIt is expected that the Evaluation Material will contain material information about the Company that has not been disclosed by the\nCompany to the public generally. You hereby acknowledge that you are aware, and you agree to advise your Representatives who are informed\nas to the matters that are the subject of this Agreement, that the U.S. federal and many state securities laws prohibit any person who has received\nfrom an issuer material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling\nsecurities of such issuer or from communicating such information to any person under circumstances in which it is foreseeable that such person\nis reasonably likely to purchase or sell such securities.\nNon-Disclosure Agreement\nPage 8\n13. Remedies.\nThe Company and you each hereby acknowledge and agree that money damages would not be a sufficient remedy for breach of this\nAgreement by you or any of your Representatives or for breach of this Agreement by the Company or any of its Representatives and that\ntherefore, both the Company and you shall be entitled to seek equitable relief, including injunctions and specific performance, as a remedy for\nany such breach without necessity of posting any bond or other security, and without proof of any actual damages. Such remedies shall\nnonetheless not be deemed to be the exclusive remedies for a breach of this Agreement, and shall be in addition to all other remedies available\nto\nyou and to the Company at law or equity. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to receive\nfrom\nthe\nother party the reasonable legal fees and expenses incurred by the prevailing party in connection with such litigation, including\nany\nappeal therefrom.\n14. Existing Portfolio Investments.\nThe Company (i) acknowledges that as part of your ordinary conduct of business that you may, from time to time, analyze and invest in\nsecurities, instruments, businesses and assets of companies and other persons engaged in the same or a substantially similar line of business as is\nengaged in and conducted by the Company and that your review of Evaluation Material upon the terms and subject to the conditions of this\nAgreement may serve to enhance your knowledge and understanding of the marketing services industry to an extent and in a manner that cannot\nbe separated from your own independent developed knowledge of such businesses and industries and (ii) agrees that, without limiting any of\nyour obligations under this Agreement and provided that you are not in breach of any of your obligations under this Agreement, including,\nwithout limitation, the last sentence of Section 2 of this Agreement, this Agreement is not intended to and shall not be deemed to restrict your use\nof such overall independently developed knowledge and understanding of the marketing services industry strictly for your own internal analytical\npurposes, including the purchase, sale and consideration of, and voting decisions relating to, existing portfolio company investments made by\nyou and your controlled affiliates.\nNotwithstanding anything in this Agreement to the contrary, the Company agrees that, to the extent you do not disclose the Evaluation\nMaterial or Transaction Information to entities controlled or otherwise managed, directly or indirectly, by you or your affiliates, none of the terms\nof this Agreement shall apply to such entities.\n15. Other Terms.\n(a)\nWaivers and Amendments. No failure or delay by any party to this Agreement in exercising any right, power or privilege hereunder\nshall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the\nexercise of any other right, power or privilege hereunder. This Agreement may only be amended by the execution and delivery of a\nwritten agreement to which you and the Company are signatories.\nNon-Disclosure Agreement\nPage 9\n(b)\nGoverning Law This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive\nlaws of the State of Delaware, without reference to the conflict of law principles of that state.\n(c) Consent to Jurisdiction. The parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of\nthe state courts of the State of Delaware or of the United States District Court for the District of Delaware for any actions, suits or\nproceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and further agree that service\nof\nany process, summons, notice or document by United States registered mail, postage prepaid, to their address set forth herein shall be\neffective service of process for any action, suit or proceeding brought against it in any such court. The parties to this Agreement\nhereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this\nAgreement or the transactions contemplated hereby, in the state courts of the State of Delaware or of the United States District Court\nfor the District of Delaware, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such\ncourt that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n(d) Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the confidentiality of\nTransaction Information and Evaluation Material, the standstill agreements, the no-solicitation agreement and the other covenants,\nundertakings and subject matter set forth in this Agreement.\n(e)\nConstruction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this\nAgreement. Accordingly, the parties further agree that no presumption or burden of proof shall be raised in any question of\ninterpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision\nhereof.\n(f)\nTerm. This Agreement, and the parties' respective rights and obligations hereunder, shall terminate on the second anniversary of the\ndate hereof; provided that any Evaluation Material that is a trade secret shall remain confidential for so long as such Evaluation\nMaterial is considered a trade secret under applicable law.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter\nshall become a binding agreement between you and Vocus.\nVery truly yours,\nVocus, Inc.\nBy:\n/s/ Stephen A. Vintz\nName: Stephen A. Vintz\nTitle: Executive Vice President/Chief Financial Officer\nAccepted and agreed as of the date first written above.\nGTCR LLC\nBy:\n/s/ Joseph Navea\nName:\nJoseph Navea\nTitle:\nDocumentation Coordinator	EX-99.(D)(6) 14 d701401dex99d6.htm NON-DISCLOSURE AGREEMENT\nExhibit (d)(6)\nDecember 20, 2013\nPRIVATE AND CONFIDENTIAL\nMr. Mark Anderson, Managing Director\nMr. Lawrence Fey, Principal\nMr. Stephen Master, Vice President\nGTCR LLC\n300 N. LaSalle St.\nSuite 5600\nChicago, IL 60654\nRe: Non-Disclosure Agreement\nGentlemen:\nIn connection with your consideration of a potential consensual transaction negotiated directly by and between Vocus, Inc., a Delaware\ncorporation (“Vocus” and collectively with its subsidiaries, the “Company,” “we” or “our”), and you (a “Transaction”), we are prepared to make\ncertain information available to you concerning the business, financial condition, operations, assets, prospects and liabilities of the Company. As\na condition to our furnishing any such information to you and your Representatives (as defined below), you agree to treat such information in\nstrict confidence in accordance with the provisions of this Non-Disclosure Agreement (this “Agreement”), and to take or refrain from taking the\nother actions as hereinafter expressly set forth.\nAs used in this Agreement, (i) the term “Representative” means, as to any person, such person’s affiliates and its and their respective\ndirectors, officers, general partners, managers, members, employees, agents and advisors (including, without limitation, financial advisors, legal\ncounsel and accountants), and with the written consent (including via email, which such consent shall not be unreasonably withheld or delayed)\nof the Company or as referenced on the attached Schedule A of this Agreement any consultants and potential financing sources; (ii) the term\n“affiliate” has the meaning given to that term in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as\namended (the “Exchange Act”); and (iii) the term “person” shall be broadly interpreted to mean all natural and legal persons, including, without\nlimitation, any company, corporation, general or limited partnership, limited liability company, trust, or other entity.\n1. Evaluation Material.\nAs used in this Agreement, the term “ Evaluation Material” means all information concerning the Company (whether furnished on or after\nthe date hereof, whether prepared by the Company, its Representatives or otherwise, whether or not marked as being confidential, and\nirrespective of the form of communication, including oral as well as written and electronic communications) that is furnished to you or to your\nRepresentatives by or on behalf of the Company. The term “Evaluation Material” also includes all notes, analyses, compilations, studies,\ninterpretations and other documents prepared by you or your Representatives which contain, reflect or are based upon, in whole or in part, the\ninformation that the Company or the\nNon-Disclosure Agreement\nPage 2\nCompany’s Representatives furnish to you or your Representatives. The term “Evaluation Material” does not include information that (a) has\nbecome generally known to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (b) was\nwithin your possession prior to it being furnished to you by or on behalf of the Company; provided, that the source of such information was not\nknown by you (or reasonably should be known by you) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary\nobligation of confidentiality to, the Company or any other party with respect to such information, (c) has become available to you on a non-\nconfidential basis from a source other than the Company or any of the Company’s Representatives if such source is not known by you (and\nshould not reasonably be known by you) to be bound by a confidentiality agreement with, or any other contractual, legal, or fiduciary obligation\nof confidentiality to, the Company or any other party with respect to such information, or (d) was independently developed by you without\nreference to any confidential information disclosed by the Company.\n2. Evaluation Material and Confidentiality.\nYou and your Representatives shall use the Evaluation Material solely for the purpose of considering, evaluating and negotiating a\nTransaction, shall not use any of the Evaluation Material for any other purpose, shall keep the Evaluation Material strictly confidential, and,\nexcept as provided in this Section 2 and in Section 4, shall not disclose any of the Evaluation Material in any manner whatsoever without the\nprior written consent of the Company; provided, however, that the Evaluation Material may be disclosed to your Representatives who need to\nknow the information so disclosed for the purpose of evaluating or advising you with respect to considering, evaluating and negotiating a\nTransaction, and who are directed by you to keep such Evaluation Material confidential and who are provided with a copy of this Agreement.\nYou shall be responsible for any breach of this Agreement by any of your Representatives, and you agree, at your sole expense, to take all\ncommercially reasonable measures to assure that your Representatives do not make any prohibited or unauthorized disclosure or use (including\nin legal proceedings to the extent set forth in Section 4 of this Agreement) of the Evaluation Material. Without limiting the foregoing, neither you\nnor any of your affiliates or Representatives shall use any information obtained from the Evaluation Material to divert or attempt to divert any\nbusiness or customer of the Company, or otherwise use any such information competitively against the Company.\n3. Transaction Information, Discussions and Confidentiality.\nExcept as set forth in Sections 2 and 4 of this Agreement, you agree that without the prior written consent of Vocus, neither you nor any of\nyour Representatives shall disclose to any person the existence of this Agreement, the fact that the Evaluation Material exists or has been made\navailable to you or any of your Representatives, the fact that you have any interest in pursuing a Transaction involving the Company, the fact that\ndiscussions or negotiations concerning a Transaction are or may be taking place, or have taken place between you and the Company (and/or any\nof the Company’s Representatives), or any of the terms, conditions or other matters discussed between you and the Company (and/or any of the\nCompany’s Representatives) with respect thereto (the foregoing such information described in this sentence being hereafter referred to\ncollectively as “Transaction Information”). Without limiting the generality of the foregoing and for purposes of clarification, except with the\nprior written consent\nNon-Disclosure Agreement\nPage 3\nof Vocus, you agree that neither you nor any of your Representatives acting on your behalf shall enter into any discussions or any agreement,\nunderstanding, plan or arrangement with any person regarding any equity or co-investment participation by that person or others with you in a\nTransaction and you shall not enter into any exclusivity agreement or arrangement with respect to a Transaction with any bank or other debt\nfinancing source.\n4. Legally Compelled Disclosure.\nIf you or any of your Representatives are required, requested or compelled in any judicial, governmental, administrative or other legal\nproceeding, or pursuant to subpoena, civil investigative demand or other compulsory process to disclose any Evaluation Material or any\nTransaction Information, you and such Representative shall first provide the Company with prompt written notice of any such requirement,\nrequest or compulsory demand, to the extent you or such Representatives may legally do so, so that the Company may seek, at the Company’s\nsole expense, a protective order or other appropriate remedy, and shall consult with the Company with respect to the Company or you or such\nRepresentative taking steps to seek to resist or narrow the scope of such required or requested disclosure. It in the absence of a protective order or\nother remedy or the receipt of a waiver by the Company, you or any of your Representatives determine, after consultation with and upon the\nadvice of legal counsel, that you or any such Representative are legally compelled to disclose Evaluation Material or Transaction Information to\nany tribunal or other public or governmental authority, or else stand liable for contempt or suffer other censure or penalty, you and any such\nRepresentative may disclose only that portion of the Evaluation Material or Transaction Information which you or any such Representative\ndetermine, after consultation with and upon the advice of legal counsel, is legally required to be disclosed; provided, that you or such\nRepresentative shall use commercially reasonable efforts to preserve the confidentiality of the Evaluation Material or Transaction Information so\ndisclosed, including, without limitation, by cooperating with the Company to obtain, at the Company’s sole expense, an appropriate protective\norder or other reliable assurance that confidential treatment will be accorded to the Evaluation Material or Transaction Information by such\ntribunal or other public or governmental authority.\n5. Termination of Discussions at Any Time Return of Evaluation Material.\nAt any time upon the request of the Company for any reason, you shall (and will direct your Representatives to) promptly, and in any event\nno later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all Evaluation Material (including all copies,\nextracts and other reproductions thereof, whether in paper, electronic or other form or media) furnished to you or your Representatives by or on\nbehalf of the Company pursuant to this Agreement; provided, however, that you and your Representatives shall be entitled to retain one complete\ncopy, in electronic archival storage form, of all Evaluation Material in accordance with document retention laws or regulations applicable to you\nand to such other persons, as the case may be, but only to the extent that appropriate personnel whose primary function within your organization\nand within the organizations of such other persons, as the case may be, is information technology or compliance in nature will have unrestricted\naccess to such retained information; and provided, further, however, that your legal counsel will be entitled to retain one complete copy of\nEvaluation Material in paper format as may be necessary to document your consideration of a Transaction for the purpose of establishing\ncompliance with any applicable\nNon-Disclosure Agreement\nPage 4\nlaws or regulations and for defending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this\nAgreement or the Evaluation Material; provided, that all such information shall continue to be kept confidential and shall be stored only in\ncounsel’s record archives to which access is not made generally available. The destruction of the Evaluation Material, including that prepared by\nyou or your Representatives, shall be certified in writing to the Company by an authorized representative supervising such destruction.\nNotwithstanding the return or destruction of the Evaluation Material, you and your Representatives shall continue to be bound by your and their\nconfidentiality obligations hereunder.\n6. Privileged Information.\nThe furnishing to you or your Representatives of any Evaluation Material shall not be deemed to waive or in any manner diminish any\nattorney-client privilege, attorney work-product protection or other privilege or protection applicable to any such Evaluation Material. The\nparties hereto acknowledge and agree that, in connection with your consideration of the potential Transaction only and not for any other purpose,\nthey (a) are or may become joint defendants in legal proceedings to which such Evaluation Material relates, and (b) intend that all such privileges\nand protections shall remain intact should either party become subject to any legal proceedings to which such Evaluation Material is relevant. In\nfurtherance of the foregoing, each party hereto agrees not to claim or contend that the other party has waived any attorney-client privilege,\nattorney work-product protection or other protection or privilege by providing information pursuant to this Agreement or any subsequent\nagreement (definitive or otherwise) regarding a Transaction into which the parties hereafter may enter.\n7. No Representation or Warranty as to Accuracy and Completeness of Evaluation Material.\nThe Company reserves the right, in its sole discretion, to determine what information it will provide or withhold (and, if provided, the form\nthereof), as well as the times and locations at which it elects to make such information available. Neither the Company nor any of its\nRepresentatives has made, hereby makes or will make any representation or warranty, express or implied, as to the accuracy or completeness of\nany of the Evaluation Material, except as may be provided in a written definitive agreement between the parties. You acknowledge and agree that\nneither the Company nor any of its Representatives shall have any obligation or liability to you or to any of your Representatives relating to or\nresulting from the use (by you or any of your Representatives) of the Evaluation Material or any inaccuracies or errors therein or omissions\ntherefrom, except as may be provided in a written definitive agreement between the parties. You also acknowledge and agree that you are not\nentitled to rely on the accuracy or completeness of any Evaluation Material and that you shall be entitled to rely solely on such representations or\nwarranties of the Company as may be made in a definitive agreement, if any, relating to a Transaction, when, as and if, entered into by the parties\nhereto and thereto and subject to such qualifications, limitations and restrictions as may be expressly specified therein.\nNon-Disclosure Agreement\nPage 5\n8. Standstill.\nYou agree that for a period of eighteen (18) months from and after the date hereof (the “Standstill Period”), neither you nor any of your\naffiliates, directly or indirectly, shall:\n(a) acquire, offer to acquire, or agree to acquire, whether by means of purchase or otherwise, any (i) securities (or any interest therein or\nright thereto) having statutory, organic or contractual voting power, whether or not contingent or upon exercise, conversion or\nexchange (“Voting Securities”), of the Company or (ii) assets or businesses of the Company or of any division or operating unit of the\nCompany;\n(b) enter into any contract, arrangement, understanding, plan, agreement or commitment (whether oral or written) with respect to any\nDerivative Securities (as defined below);\n(c) make or in any way participate, directly or indirectly, in any “solicitation” of “proxies” or “consents” (as such terms are used in the\nrules and published interpretations of the U.S. Securities and Exchange Commission (“SEC”)) to vote (or to withhold authority in\nrespect of or abstain from voting), or seek to advise or influence any person with respect to the voting of (or the withholding of\nauthority of or abstention from voting), any Voting Securities of the Company;\n(d) unless expressly invited to do so by the Board of Directors of Vocus (or any duly constituted committee thereof comprised wholly of\nindependent directors of Vocus), make any public announcement with respect to, or submit to the Company or any of its affiliates,\nRepresentatives or any other person, any proposal, expression of interest, term sheet, memorandum of understanding, letter of intent,\ninquiry or offer (with or without conditions) providing for, in a single transaction or in any series of related transactions, any merger,\nconsolidation, acquisition, business combination, share exchange, recapitalization, reorganization, divestiture, spin-off, split-off, cash\nor property distribution or any other extraordinary transaction involving the Company or any of the Company’s securities, assets or\nbusinesses;\n(e) form, join or in any way engage or participate in a “group,” (within the meaning of Section 13(d)(3) of the Exchange Act) in\nconnection with any Voting Securities of the Company;\n(f) act alone, or in concert with any other person(s), to seek to control or influence the management, board of directors, policies or affairs\nof the Company (including, without limitation, by seeking to place any individual on the Company’s board of directors, seeking to\nhave called any meeting of the Company’s stockholders or seeking to advise, encourage or influence any person with respect to the\nvoting of any securities of the Company for the election of individuals to the Company’s board of directors or to approve stockholder\nproposals);\nNon-Disclosure Agreement\nPage 6\n(g) take any action that might require the Company to make a public announcement regarding any of the types of matters set forth in\nclause “(a)” or “(d)” of this sentence;\n(h) request or propose that the Company or any of the Company’s Representatives amend or waive, or consider the amendment or waiver\nof, any provision set forth in this Section 8, either publicly or in any manner that would reasonably likely to lead to or require public\ndisclosure of such request or proposal;\n(i) have any discussions or enter into any arrangements, understandings, plans, commitments or agreements (whether oral or written)\nwith, act as a financing source for or otherwise invest in any significant manner with respect to, or advise, assist or encourage, any\nperson in connection with any of the foregoing; or\n(j) at no time offer or communicate directly to the Company’s shareholders in the form of a tender offer, exchange offer or otherwise in\nrelation to the Transaction, unless expressly contemplated by a definitive agreement entered into between you (or one or more of your\ncontrolled affiliates) and the Company;\nprovided, however, that the restrictions set forth in this Section 8 shall terminate immediately upon (A) the public announcement by Vocus that it\nhas entered into a definitive agreement with a third party for a transaction involving the acquisition of more than 50% of the outstanding equity\nsecurities of Vocus or all or substantially all of the assets (on a consolidated basis) of the Company or (B) any person or group publicly\nannounces or commences a tender or exchange offer to acquire Voting Securities of Vocus, that, if successful, would result in such person or\ngroup beneficially owning more than 50% of the then outstanding Voting Securities of Vocus, and Vocus files a Schedule 14D-9 with respect to\nsuch tender or exchange offer that recommends that Vocus’ stockholders accept such offer. The expiration of the Standstill Period will not\nterminate or otherwise affect any of the other provisions of this Agreement.\nFor purposes of this Section 8, “Derivative Securities” means any securities that are the subject of any derivative or other transaction\nentered into by any person, which gives such person the economic equivalent of ownership of an amount of Company securities due to the fact\nthat the value of the derivative is determined by reference or in relation to the price or value of such securities, irrespective of whether (i) such\nderivative conveys or confers to any person, or otherwise has ascribed to it, any voting rights or voting power or (ii) the derivative is capable of\nbeing or required to be settled by the payment of cash or through the delivery of such securities.\n9. Effect of Agreement.\nNo agreement providing for any Transaction currently exists and none shall be deemed to exist between the parties hereto unless and until a\ndefinitive written agreement for any such Transaction is hereafter negotiated, executed and delivered with the intention of being legally binding\nupon the parties hereto and any other necessary parties thereto. The parties hereto agree that unless and until a definitive agreement between\nthem with respect to a Transaction has been executed and delivered by them and any such other parties, with the intention of being legally\nbinding as aforesaid, neither party nor any of their respective affiliates shall be under any\nNon-Disclosure Agreement\nPage 7\nobligation of any kind whatsoever with respect to a Transaction, including any obligation to commence or continue discussions or negotiations\nwith respect to a Transaction, by virtue of this Agreement or any other written or oral expression with respect to such a Transaction by the parties\nhereto or any of their Representatives. Without limiting the foregoing sentence (and subject to the provisions of Section 8 of this Agreement),\neach party hereto acknowledges and agrees that the other party hereto may disclose information about itself (if disclosed by you or your\nRepresentatives, to the extent not containing any Transaction Information or Evaluation Material, and if disclosed by the Company or its\nRepresentatives, to the extent not containing any Transaction Information) to, and enter into negotiations with, other persons or entities at any\ntime without any obligation to notify the other party hereto of such disclosure or negotiations.\n10. Designated Contact Persons.\nEach party to this Agreement and its Representatives will designate appropriate contact persons for due diligence purposes. All\ncommunications regarding a Transaction, requests for additional information, requests for facility tours or management meetings and discussions\nor questions regarding procedures, will be directed exclusively to such contact persons, and neither party hereto nor any of its Representatives\nacting on such party’s behalf will initiate or cause to be initiated any communication with any director, officer, employee, and to such person’s\nknowledge any advisor, agent or regulator of the other party hereto or its Representatives, other than such contact persons or any other person\ndirected by such contact persons, concerning the Evaluation Material (including any requests to obtain or discuss any Evaluation Material) or any\npossible Transaction. The contact person for the Company is: Jason Stack (jstack@stifel.com or 212-271-3868) or otherwise as directed in\nwriting by the Company.\n11. Non-Solicitation.\nYou agree that, except as provided in a definitive agreement relating to a Transaction, for a period of one (1) year following the date of this\nAgreement, you shall not, and you shall not authorize, instruct, encourage or facilitate the ability of any of your Representatives and any person\nacting on behalf of to, in any manner, directly or indirectly, solicit for hire any of the officers or employees of the Company with whom you had\ncontact or first became aware of during the process contemplated herein; provided, however, that the foregoing does not preclude you or your\nRepresentatives from: (a) soliciting employees through, or hiring employees who respond to, general job advertisements or similar notices that\nare not targeted specifically at the employees of the Company; or (b) soliciting or hiring employees whose employment has been terminated by\nthe Company.\n12. Securities Law Compliance.\nIt is expected that the Evaluation Material will contain material information about the Company that has not been disclosed by the\nCompany to the public generally. You hereby acknowledge that you are aware, and you agree to advise your Representatives who are informed\nas to the matters that are the subject of this Agreement, that the U.S. federal and many state securities laws prohibit any person who has received\nfrom an issuer material, non-public information concerning the matters that are the subject of this Agreement from purchasing or selling\nsecurities of such issuer or from communicating such information to any person under circumstances in which it is foreseeable that such person\nis reasonably likely to purchase or sell such securities.\nNon-Disclosure Agreement\nPage 8\n13. Remedies.\nThe Company and you each hereby acknowledge and agree that money damages would not be a sufficient remedy for breach of this\nAgreement by you or any of your Representatives or for breach of this Agreement by the Company or any of its Representatives and that\ntherefore, both the Company and you shall be entitled to seek equitable relief, including injunctions and specific performance, as a remedy for\nany such breach without necessity of posting any bond or other security, and without proof of any actual damages. Such remedies shall\nnonetheless not be deemed to be the exclusive remedies for a breach of this Agreement, and shall be in addition to all other remedies available to\nyou and to the Company at law or equity. In the event of litigation relating to this Agreement, the prevailing party shall be entitled to receive\nfrom the other party the reasonable legal fees and expenses incurred by the prevailing party in connection with such litigation, including any\nappeal therefrom.\n14. Existing Portfolio Investments.\nThe Company (i) acknowledges that as part of your ordinary conduct of business that you may, from time to time, analyze and invest in\nsecurities, instruments, businesses and assets of companies and other persons engaged in the same or a substantially similar line of business as is\nengaged in and conducted by the Company and that your review of Evaluation Material upon the terms and subject to the conditions of this\nAgreement may serve to enhance your knowledge and understanding of the marketing services industry to an extent and in a manner that cannot\nbe separated from your own independent developed knowledge of such businesses and industries and (ii) agrees that, without limiting any of\nyour obligations under this Agreement and provided that you are not in breach of any of your obligations under this Agreement, including,\nwithout limitation, the last sentence of Section 2 of this Agreement, this Agreement is not intended to and shall not be deemed to restrict your use\nof such overall independently developed knowledge and understanding of the marketing services industry strictly for your own internal analytical\npurposes, including the purchase, sale and consideration of, and voting decisions relating to, existing portfolio company investments made by\nyou and your controlled affiliates.\nNotwithstanding anything in this Agreement to the contrary, the Company agrees that, to the extent you do not disclose the Evaluation\nMaterial or Transaction Information to entities controlled or otherwise managed, directly or indirectly, by you or your affiliates, none of the terms\nof this Agreement shall apply to such entities.\n15. Other Terms.\n(a) Waivers and Amendments. No failure or delay by any party to this Agreement in exercising any right, power or privilege hereunder\nshall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the\nexercise of any other right, power or privilege hereunder. This Agreement may only be amended by the execution and delivery of a\nwritten agreement to which you and the Company are signatories.\nNon-Disclosure Agreement\nPage 9\n(b) Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive\nlaws of the State of Delaware, without reference to the conflict of law principles of that state.\n(c) Consent to Jurisdiction. The parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of\nthe state courts of the State of Delaware or of the United States District Court for the District of Delaware for any actions, suits or\nproceedings arising out of or relating to this Agreement and the transactions contemplated hereby, and further agree that service of\nany process, summons, notice or document by United States registered mail, postage prepaid, to their address set forth herein shall be\neffective service of process for any action, suit or proceeding brought against it in any such court. The parties to this Agreement\nhereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this\nAgreement or the transactions contemplated hereby, in the state courts of the State of Delaware or of the United States District Court\nfor the District of Delaware, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such\ncourt that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n(d) Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning the confidentiality of\nTransaction Information and Evaluation Material, the standstill agreements, the no-solicitation agreement and the other covenants,\nundertakings and subject matter set forth in this Agreement.\n(e) Construction. The parties hereto acknowledge and agree that they have both participated in the negotiations and preparation of this\nAgreement. Accordingly, the parties further agree that no presumption or burden of proof shall be raised in any question of\ninterpretation of this Agreement based upon any assertion that one party or the other has drafted this Agreement or any provision\nhereof.\n(f) Term. This Agreement, and the parties’ respective rights and obligations hereunder, shall terminate on the second anniversary of the\ndate hereof; provided that any Evaluation Material that is a trade secret shall remain confidential for so long as such Evaluation\nMaterial is considered a trade secret under applicable law.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter\nshall become a binding agreement between you and Vocus.\nVery truly yours,\nVocus, Inc.\nBy: /s/ Stephen A. Vintz\nName: Stephen A. Vintz\nTitle: Executive Vice President/Chief Financial Officer\nAccepted and agreed as of the date first written above.\nGTCR LLC\nBy:\n/s/ Joseph Navea\nName: Joseph Navea\nTitle:\nDocumentation Coordinator
+1c1705ebb86fb8c9ddd2c765d1d59486.pdf	effective_date jurisdiction party	EX-10 .1 2 a14-24845 _1ex10d1.htm EX-10.1\nExhibit 10.1\nCONFIDENTIAL SEPARATION AGREEMENT\nAND GENERAL RELEASE OF CLAIMS\nThis Agreement is a contract between John Michael Magouirk (“you”) and Colt’s Manufacturing Company LLC (“Colt”) relating to your separation from Colt, effective November 14, 2014 (the “Separation Date”). You\nshould thoroughly review and understand the Agreement before signing it, and you are advised to consult with counsel before signing this Agreement.\nA.\nBENEFITS FOR SIGNING THIS AGREEMENT: In exchange for your execution of this Agreement and subject to the terms and conditions of this Agreement, Colt agrees to provide you with the\nfollowing benefits in connection with your separation (collectively, the “Separation Benefits”):\n1.\nContinuation of your salary (not including any bonus or incentive compensation) as of the Separation Date for fifty-two weeks (“Separation Pay”) at a weekly rate of $7,210 for a total amount of $374,920\nless appropriate taxes and withholdings. Payment of the Separation Pay in the form of salary continuation shall commence, in accordance with Colt regular payroll practices, following the Effective Date of this Agreement, as set forth in\nSection J below.\n2.\nIf applicable, continuation of your participation in Colt group health plans through December 31, 2014, on the same terms and conditions as existed immediately prior to the Separation Date, including\nyour responsibility to pay the employee portion of the coverage. If applicable, after December 31, 2014, you may be eligible to continue health benefits under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) at your\nsole expense.\nB.\nRELEASE AND WAIVER:\n1.\nIn exchange for the payments and other consideration described above, you agree to release Colt and any and all of its parents, subsidiaries, affiliates, predecessors, successors and assigns (herein referred\nto collectively as “Colt and Affiliates”), from any and all claims, demands, actions, or liabilities you may have against them, or any one of them, of whatever kind, including but not limited to those which are related in any way to your\nemployment by Colt and Affiliates or the termination of that employment. You also agree to release from all claims, demand, actions, or liabilities the past, present, and future principals, agents, directors, officers, employees, fiduciaries,\nrepresentatives, successors and assigns of Colt and Affiliates (hereinafter, “Associated Persons”). You agree that you have executed this Agreement on your own behalf, and also on behalf of any heirs, agents, representatives, successors\nand assigns that you may have now or in the future.\n2.\nYou agree that this Release and Waiver covers, but is not limited to, claims arising under Title VII of the Civil Rights Act of 1964, as amended, the Employee Retirement Income Security Act of 1974, as\namended (also known as “ERISA”), the Age Discrimination in Employment Act as amended by the Older Workers Benefit Protection Act (“OWBPA”), the Americans with Disabilities Act of 1990, the Connecticut Fair Employment\nPractices Act, and any other federal, state or local law dealing with discrimination on any basis, including sex, race, national origin, veteran status, marital status, religion, disability, sexual orientation, reservist status or age. You also agree\nthat, except to the extent otherwise provided by law, this Release and Waiver includes claims based on any statute or on any contract or tort theories, whether based on common law or otherwise. This Release and Waiver does not apply to\nclaims arising\nunder any workers’ compensation statute, except it does apply to claims for wrongful discharge or other discrimination in employment for exercising rights under such statute.\n3.\nIf any claim is not subject to release, to the extent permitted by law, you waive any right or ability to be a class or collective action representative or to otherwise participate in any putative or certified\nclass, collective or multi-party action or proceeding based on such a claim in which Colt and Affiliates or Associated Persons are parties. You promise not to consent to become a member of any class or collective in which claims are\nasserted against Colt and Affiliates or Associated Persons that are related in any way to your employment or the termination of your employment with Colt. If, without your prior knowledge and consent, you are made a member of a class\nin any such proceeding, you agree to opt out of the class at the first opportunity.\n4.\nThis Release and Waiver applies to all complaints, claims or demands based on any facts or events, whether known or unknown by you, that occurred on or before the date you sign this Agreement.\nC.\nELIGIBILITY REQUIREMENTS/APPLICABLE DATA: In order to eliminate certain redundancies and duplication of services following Colt’s acquisition of Colt Manufacturing Company LLC,\nColt has elected to implement the Human Resources 2014 Restructuring Program (the “Program”). This program has been developed to establish a streamlined, reorganization of the Human Resources function which will realign\nfunctional and task responsibilities in order to improve its ability to consistently and effectively deliver best practice performance. In addition, this and other reorganizations will support the new company leadership team and in support of\nthe 8Q Plan and enhanced stockholder value.\nIndividual(s) who are eligible to participate in the Program have been or will be selected for termination from their employment based on Colt’s business needs and consideration of one or more of the following eligibility\ncriteria:\n1.\nthe duplication and/or redundancy of the functions the individuals performs when compared with the functions performed by other individuals;\n2.\nthe individual’s disciplinary history compared to other individuals performing the same or similar job functions;\n3.\nthe flexibility of the individual’s skills, including the individual’s ability to perform multiple or varied functions according to business need, compared to the flexibility of the skills of individuals in the same or\nsimilar job classification;\n4.\nthe individual’s performance and competency performing job-related tasks as compared to the performance and competency of other employees in the same job classification and business unit in performing\njob-related tasks\n5.\nthe individual’s ability to assume, and perform competently, additional responsibilities following implementation of the Program.\nAttached as Exhibit “A” is a list of the job title and ages of all individuals who have been selected for the Program as of their last date of employment with Colt. Attached as Exhibit “B” is a list of the job titles and ages of all individuals\nin the same decisional unit as you who have not been selected for the Program as of the date you receive this Agreement.\nD.\nNO FUTURE LAWSUITS: You promise never to file a lawsuit against Colt and Affiliates or Associated Persons, including but not limited to claims arising from or related to your employment with\nColt or the termination of that employment. Except as set forth in the preceding sentence, you further promise never to assist voluntarily any other person or entity filing a lawsuit or contemplating filing a lawsuit that asserts any claim or\ndemand against Colt\n2\nand Affiliates or Associated Persons. Colt and you acknowledge that this Agreement does not limit either party’s right, where applicable, to file or to participate in an investigative proceeding of any federal, state or local governmental\nagency. To the extent permitted by law, if a claim is brought in any forum by you or on your behalf against Colt and Affiliates or Associated Persons, you hereby agree that you waive any right to recover damages or any other relief in\nsuch proceeding.\nE.\nPROTECTION OF CONFIDENTIAL AND PROPRIETARY INFORMATION, SURRENDER OF MATERIALS: (1) You acknowledge that you have signed and are bound by the Employee\nInvention and Confidential Information Agreement (“Confidentiality Agreement”). As a material condition of your eligibility for the Separation Benefits, you expressly reaffirm your obligation to abide by the Confidentiality Agreement\nand agree that you will do so. You further understand and agree that a violation or other failure to abide by the Confidentiality Agreement will result in forfeiture of the Separation Benefits described in Section A above and/or an\nobligation promptly to reimburse Colt for the cost of any Separation Benefits, including Separation Pay, that have already been paid or provided to you. (2) You affirm that you have returned to Colt all company property, including but\nnot limited to vehicle, door, file and other keys; laptops or other computers; computer software or hardware; telephones; PDAs, electronic devices, or other such devices; credit cards; equipment; and records, files or other documents,\nincluding electronically created or stored documents. You agree that you have not and will not retain any copies or excerpts of the materials described above, and that you will not attempt to retrieve or recreate any of the materials\ndescribed above after the Separation Date.\nF.\nAFFIRMATIONS: You affirm that you have been paid and/or have received all compensation, wages, bonuses, commission, vacation time and other benefits to which you may be entitled. You further\naffirm that you are not eligible for any additional severance or other pay other than as expressly set forth in this Agreement.\nYou affirm that you are not aware of any compliance issues relating to Colt and Affiliates or Associated Persons. If you are aware of any such issues, you affirm that such issues have been reported to Colt in accordance\nwith Colt policies.\nG.\nCONFIDENTIALITY OF AGREEMENT: You agree to keep confidential the terms of this Agreement and will not disclose them to any person or entity, except as required by law and except that you\nmay disclose the terms of this Agreement to immediate family member(s) and to your legal or financial counselors or advisors, so long as you first inform any such individuals of this Confidentiality provision and so long as they agree to\ncomply with this Confidentiality provision.\nH.\nNON-DISPARAGEMENT: You agree that neither you nor anyone acting on your behalf will initiate or engage in any communication whatsoever with any person, which could reasonably be interpreted\nas derogatory or disparaging to or about Colt and Affiliates or Associated Persons.\nI.\nGOVERNING LAW: This Agreement shall be governed by and construed under the laws of the State of Connecticut.\nJ.\nTIME TO CONSIDER AGREEMENT: You acknowledge and agree that you have been given an adequate and reasonable period of time to consider this Agreement. Specifically, you have at least\nforty-five (45) days from the date you received this Agreement within which to consider and sign it. If you do sign the Agreement, you then have a seven (7) day period thereafter within which you may revoke it (“Revocation Period”), if\nyou so choose.\n3\nRevocation of this Agreement would render all of its provisions, including but not limited to Paragraphs A and B above null and void, and you will not receive any separation payment. If you do choose to revoke this Agreement, you must\nprovide written notice of revocation, within the seven (7) day period after signing this Agreement, to John Coghlin, Senior Vice President and General Counsel, Colt’s Manufacturing Company LLC, by fax, e-mail or mail. This\nAgreement shall become effective after the expiration of the seven (7) day Revocation Period with no revocation (“Effective Date”).\nK\nENTIRE AGREEMENT: You have not relied on any representations, promises, or agreements of any kind made to you in connection with your decision to sign this Agreement. This Agreement and\nthe Confidentiality Agreement as described above set forth the entire agreement between you and Colt and render null and void any and all prior or contemporaneous oral or written understandings, statements, representations or promises,\nexcept as otherwise expressly stated above. No changes to this Agreement shall be made, except in writing and signed by both parties.\nYOU ARE HEREBY ADVISED THAT YOU HAVE UP TO FORTY-FIVE (45) CALENDAR DAYS TO CONSIDER THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL\nRELEASE OF CLAIMS. YOU ARE ALSO ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS.\nYOU AGREE THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE , MADE TO THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS,\nDO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL FORTY-FIVE (45) CALENDAR DAY CONSIDERATION PERIOD.\nYOU FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION , ENTER INTO THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF\nCLAIMS INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS YOU HAVE OR MIGHT HAVE AGAINST COLT DEFENSE AND AFFILIATES OR ASSOCIATED PERSONS AS OF THE DATE YOU\nSIGN THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS.\nYou have read, understand and voluntarily execute this Agreement and assent to its terms, affirming that your decision to sign this Agreement has been made freely and without any duress or coercion. Please return the signed Agreement\nto John Coghlin, Senior Vice President and General Counsel at Colt’s Manufacturing Company LLC.\nDated:\nNovember 4, 2014\nfor\n/s/ Dennis Veilleux\nColt’s Manufacturing Company LLC\nBy: Dennis Veilleux, President and Chief Executive Officer\nDated:\nNovember 4, 2014\n/s/ John Michael Magouirk\nJohn Michael Magouirk\n4\nEXHIBIT A\nINDIVIDUALS SELECTED FOR THE\nCOLT’S MANUFACTURING COMPANY LLC RESTRUCTURING PROGRAM\n(Vice President Sales Grade 19)\nJob Title\nIndividual’s Age on His/Her Separation Date\nSr. Vice President/COO\n52.4 years\n5\nEXHIBIT B\nINDIVIDUALS NOT SELECTED FOR THE\nCOLT’S MANUFACTURING COMPANY LLC RESTRUCTURING PROGRAM\nIN THE SAME DECISIONAL UNIT AS YOU\nDECISIONAL UNIT: Sr. Vice President/COO Grade\nJob Title\nIndividual’s Age on Your Separation Date\nUnique Job Grade and responsibility- No\nother individuals\n6	EX-10.l 2 al4-24845_leXlOdl.htm EX-10.l\nExhibithJ\nCONFIDENTIAL SEPARATION AGREEMENT\nAND GENERAL RELEASE OF CLAIMS\nThis Agreement is a contract betweenjohn Michael Magouirk (”you”) and Colt's Manufacturing Company LLC ("Colt") relating to your separation from Colt, effective November 14, 2014 (the "Separation Date"). Y ou\nshould thoroughly review and understand the Agreement before signing it, and you are advised to consult with counsel before signing this Agreement.\nA. BENEFITS FOR SIG NING THIS AG REEMENT: In exchange for your execution of this Agreement and subject to the terms and conditions of this Agreement, Colt agrees to provide you with the\nfollowing benefits in connection with your separation (collectively, the "Separation Benefits"):\n1. Continuation of your salary (not including any bonus or incentive compensation) as of the Separation Date for fifty-two weeks ("Separation Pay") at a weekly rate of $7,210 for a total amount of $374,920\nless appropriate taxes and withholdings. Payment of the Separation Pay in the form of salary continuation shall commence, in accordance with Colt regular payroll practices, following the Effective Date of this Agreement, as set forth in\nSection] below.\n2. If applicable, continuation of your participation in Colt group health plans through December 31, 2014, on the same terms and conditions as existed immediately prior to the Separation Date, including\nyour responsibility to pay the employee portion of the coverage. If applicable, after December 31, 2014, you may be eligible to continue health benefits under the Consolidated Omnibus Budget Reconciliation Act ("COBRA "J at your\nsole expense.\nB. RELEASE AND WAIVER:\n1. In exchange for the payments and other consideration described above, you agree to release Colt and any and all of its parents, subsidiaries, affiliates, predecessors, successors and assigns (herein referred\nto collectively as "Colt and Affiliates"), from any and all claims, demands, actions, or liabilities you may have against them, or any one of them, of whatever kind, including but not limited to those which are related in any way to your\nemployment by Colt and Affiliates or the termination of that employment. Y on also agree to release from all claims, demand, actions, or liabilities the past, present, and future principals, agents, directors, officers, employees, fiduciaries,\nrepresentatives, successors and assigns of Colt and Affiliates (hereinafter, "A ssociated Persons”). Y ou agree that you have executed this Agreement on your own behalf, and also on behalf of any heirs, agents, representatives, successors\nand assigns that you may have now or in the future.\n2. Y ou agree that this Release and Waiver covers, but is not limited to, claims arising under Title VII of the Civil Rights Act of 1964, as amended, the Employee Retirement Income Security Act of 1974, as\namended (also known as "ERISA ”l, the Age Discrimination in Employment Act as amended by the Older Workers Benefit Protection Act ("OWBPA"), the Americans with Disabilities Act of 1990, the Connecticut Fair Employment\nPractices Act, and any other federal, state or local law dealing with discrimination on any basis, including sex, race, national origin, veteran smtus, marital status, religion, disability, sexual orientation, reservist status or age. Y ou also agree\nthat, except to the extent otherwise provided by law, this Release and Waiver includes claims based on any smtute or on any contract or tort theories, whether based on common law or otherwise This Release and Waiver does not apply to\nclaims arising\nunder any workers' compensation statute, except it does apply to claims for wrongful discharge or other discrimination in employment for exercising rights under such smtute.\n3. If any claim is not subject to release, to the extent permitted by law, you waive any right or ability to be a class or collective action representative orto otherwise participate in any putative or certified\nclass, collective or multi-party action or proceeding based on such a claim in which Colt and Affiliates orAssociated Persons are parties. Y ou promise not to consent to become a member of any class or collective in which claims are\nasserted against Colt and Affiliates orAssociated Persons that are related in any way to your employment or the termination of your employment with Colt. If, without your prior knowledge and consent, you are made a member of a class\nin any such proceeding, you agree to opt out of the class at the first opportunity.\n4. This Release and Waiver applies to all complaints, claims or demands based on any facts or events, whether known or unknown by you, that occurred on or before the date you sign this Agreement.\nC. ELIGIBILITY REQUIREMENTS/APPL [CABLE DATA: In orderto eliminate certain redundancies and duplication of services following Colt's acquisition of Colt Manufacturing Company LLC,\nColt has elected to implement the Human Resources 2014 Restructuring Program (the ”Program"). This program has been developed to establish a streamlined, reorganization of the Human Resources function which will realign\nfunctional and task responsibilities in order to improve its ability to consistently and effectively deliver best practice performance. In addition, this and other reorganizations will support the new company leadership team and in support of\nthe SQ Plan and enhanced stockholder value.\nIndividual(s} who are eligible to participate in the Program have been or will be selected for termination from their employment based on Colt' s business needs and consideration of one or more of the following eligibility\ncriteria:\n1. the duplication and/or redundancy of the functions the individuals performs when compared with the functions performed by other individuals,-\n2. the individual’s disciplinary history compared to other individuals performing the same or similar job functions;\n3. the flexibility of the individual's skills, including the individual's ability to perform multiple or varied functions according to business need, compared to the flexibility of the skills of individuals in the same or\nsimilar j ob classification;\n4. the individual’s performance and competency performing job-related tasks as compared to the performance and competency of other employees in the same job classification and business unit in performing\njob— related tasks\n5. the individual’s ability to assume, and perform competently, additional responsibilities following implemenmtion of the Program.\nAttached as Exhibit "A ” is a list of the job title and ages of all individuals who have been selected for the Program as of their last date of employment with Colt. Attached as Exhibit "B" is a list of the job titles and ages of all individuals\nin the same decisional unit as you who have not been selected for the Program as of the date you receive this Agreement.\nD. NO FUTURE LAW SUIT S: Y ou promise never to file a lawsuit against Colt and Affiliates orAssociated Persons, including but not limited to claims arising from or related to your employment with\nColt or the termination of that employment. Except as set forth in the preceding sentence, you further promise never to assist volunmrily any other person or entity filing a lawsuit or contemplating filing a lawsuit that asserts any claim or\ndemand against Colt\nand Affiliates orAssociated Persons. Colt and you acknowledge that this Agreement does not limit either party's right, where applicable, to file or to participate in an investigative proceeding of any federal, smte or local governmenml\nagency. To the extent permitted by law, if a claim is brought in any forum by you or on your behalf against Colt and Affiliates orAssociated Persons, you hereby agree that you waive any right to recover damages or any other relief in\nsuch proceeding.\nE. PROTECTION OF CONFIDENTIAL AND PROPRIETARY INFORMATION, SURRENDER OF MATERIALS: [1) Y ou acknowledge that you have signed and are bound by the Employee\nInvention and Confidential Information Agreement ("Confidentiality Agreement"). As a material condition of your eligibility for the Separation Benefits, you expressly reaffirm your obligation to abide by the Confidentiality Agreement\nand agree that you will do so. Y ou further understand and agree that a violation or other failure to abide by the Confidentiality Agreement will result in forfeiture of the Separation Benefits described in Section A above and/or an\nobligation promptly to reimburse Colt for the cost of any Separation Benefits, including Separation Pay, that have already been paid or provided to you. (2) Y ou affirm that you have returned to Colt all company property, including but\nnot limited to vehicle, door, file and other keys; laptops or other computers; computer software or hardware; telephones; PDAs, electronic devices, or other such devices; credit cards; equipment; and records, files or other documents,\nincluding electronically created or stored documents. Y ou agree that you have not and will not retain any copies or excerpts of the materials described above, and that you will not attempt to retrieve or recreate any of the materials\ndescribed above after the Separation Date.\nF. AFFIRMATIONS: Y ou affirm that you have been paid and/or have received all compensation, wages, bonuses, commission, vacation time and other benefits to which you may be entitled. Y ou further\naffirm that you are not eligible for any additional severance or other pay other than as expressly set forth in this Agreement.\nY ou affirm that you are not aware of any compliance issues relating to Colt and Affiliates orAssociated Persons. If you are aware of any such issues, you affirm that such issues have been reported to Colt in accordance\nwith Colt policies.\nG. CONFIDENTIALITY OF AGREEMENT: Y ou agree to keep confidential the terms of this Agreement and will not disclose them to any person or entity, except as required by law and except that you\nmay disclose the terms of this Agreement to immediate family memberts) and to your legal or financial counselors or advisors, so long as you first inform any such individuals of this Confidentiality provision and so long as they agree to\ncomply with this Confidentiality provision.\nH. N0 N-DISPA RAG EM ENT: Y ou agree that neither you nor anyone acting on your behalf will initiate or engage in any communication whatsoever with any person, which could reasonably be interpreted\nas derogatory or disparaging to or about Colt and Affiliates or Associated Persons.\n1. GOVERNING LAW: This Agreement shall be governed by and construed under the laws of the State of Connecticut\nJ. TIME TO CONSIDER AG REEMENT: Y ou acknowledge and agree that you have been given an adequate and reasonable period of time to consider this Agreement. Specifically, you have at least\nforty-five (45) days from the date you received this Agreement within which to consider and sign it. If you do sign the Agreement, you then have a seven (7) day period thereafter within which you may revoke it (”Revocation Period"), if\nyou so choose.\nRevocation of this Agreement would render all of its provisions, including but not limited to Paragraphs A and B above null and void, and you will not receive any separation payment. If you do choose to revoke this Agreement, you must\nprovide written notice of revocation, within the seven (7) day period after signing this Agreement, to John Coghlin, SeniorVice President and General Counsel, Colt' s Manufacturing Company LLC, by fax, e-mail or mail. This\nAgreement shall become effective after the expiration of the seven (7) day Revocation Period with no revocation ("Effective Date").\nK ENTIRE AG REEMENT: Y ou have not relied on any representations, promises, or agreements of any kind made to you in connection with your decision to sign this Agreement This Agreement and\nthe Confidentiality Agreement as described above set forth the entire agreement between you and Colt and render null and void any and all prior or contemporaneous oral or written understandings, smtements, representations or promises,\nexcept as otherwise expressly stated above. No changes to this Agreement shall be made, except in writing and signed by both parties.\nYOU ARE HEREBY ADVISED THAT YOU HAVE UP TO FORTY-FIVE (45) CALENDAR DAYS TO CONSIDER THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL\nRELEASE OF CLAIMS. YOU ARE ALSO ADVISED T0 CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS.\nYOU AGREE THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS,\nDO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL FORTY-FIVE (45) CALENDAR DAY CONSIDERATION PERIOD.\nYOU FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTER INTO THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF\nCLAIMS INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS YOU HAVE OR MIGHT HAVE AGAINST COLT DEFENSE AND AFFILIATES OR ASSOCIATED PERSONS AS OF THE DATE YOU\nSIGN THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS.\nY ou have read, understand and voluntarily execute this Agreement and assent to its terms, affirming that your decision to sign this Agreement has been made freely and without any duress or coercion Please return the signed Agreement\nto John Coghlin, Senior Vice President and General Counsel at Colt's Manufacturing Company LLC.\nDated: November 4, 2014 for /s/ Dennis Veilleux\nColt's Manufacturing Company LLC\nBy: Dennis Veilleux, President and Chief Executive Officer\nD ated: November 4, 2014 /s/ John Michael M agouirk\nJohn Michfian—\nEXHIBIT A\nINDIVIDUALS SELECTED FOR THE\nCOLT’S MANUFACTURING COMPANY LLC RESTRUCTURING PROGRAM\n(Vice President Sales Grade 19)\nJob Title Individual’s A ge on His/Her Separation Date\nSn Vice PresidenUCOO 524 years\nEXHIBIT B\nINDIVIDUALS NOT SELECTED FOR THE\nCOLT’S MANUFACTURING COMPANY LLC RESTRUCTURING PROGRAM\nIN THE SAME DECISIONAL UNIT AS YOU\nDECISIONAL UNIT: Sr. Vice President/COO Grade\nJob Title lm‘lividual’s A ge on v our Separation Dane\nUniqueJob Grade and responsibility No\nother individuals	EX-10.1 12a14-24845 lex10d1.htm EX-10.1\nExhibit 10.1\nCONFIDENTIAL SEPARATION AGREEMENT\nAND GENERAL RELEASE OF CLAIMS\nThis Agreement is a contract between John Michael Magouirk ("you") and Colt's Manufacturing Company LLC ("Colt") relating to your separation from Colt, effective November 14, 2014 (the "Separation Date"). You\nshould thoroughly review and understand the Agreement before signing it, and you are advised to consult with counsel before signing this Agreement.\nA.\nBENEFITS FOR SIGNING THIS AGREEMENT: In exchange for your execution of this Agreement and subject to the terms and conditions of this Agreement, Colt agrees to provide you with the\nfollowing benefits in connection with your separation (collectively, the "Separation Benefits"):\n1.\nContinuation of your salary (no including any bonus or incentive compensation) as of the Separation Date for fifty-two weeks ("Separation Pay") at a weekly rate of $7,210 for a total amount of $374,920\nless appropriate taxes and withholdings. Payment of the Separation Pay in the form of salary continuation shall commence, in accordance with Colt regular payroll practices, following the Effective Date of this Agreement, as set forth in\nSection below.\n2.\nIf applicable, continuation of your participation in Colt group health plans through December 31, 2014, on the same terms and conditions as existed immediately prior to the Separation Date, including\nyour responsibility to pay the employee portion of the coverage. If applicable after December 31, 2014, you may be eligible to continue health benefits under the Consolidated Omnibus Budget Reconciliation Act ("COBRA" at your\nsole expense.\nB.\nRELEASE AND WAIVER:\n1.\nIn\nexchange for the payments and other consideration described above you agree to release Colt and any and all of its parents, subsidiaries, affiliates, predecessors, successors and assigns (herein referred\nto\ncollectively as "Colt and Affiliates"), from any and all claims, demands, actions, or liabilities you may have against them, or any one of them, of whatever kind, including but not limited to those which are related in any way to your\nemployment by Colt and Affiliates or the termination of that employment. Y ou also agree to release from all claims, demand, actions, or liabilities the past, present, and future principals, agents, directors, officers, employees, fiduciaries,\nrepresentatives, successors and assigns of Colt and Affiliates (hereinafter, Associated Persons"). Y ou agree that you have executed this Agreement on your own behalf, and also on behalf of any heirs, agents, representatives, successors\nand assigns that you may have now or in the future.\n2.\nYou agree that this Release and Waiver covers, but is not limited to, claims arising under Title VII of the Civil Rights Act of 1964, as amended, the Employee Retirement Income Security Act of 1974, as\namended (also known as "ERISA") the Age Discrimination in Employment A as amended by the Older Workers Benefit Protection ("OWBPA"), the Americans with Disabilities of 1990, the Connecticut Fair Employment\nPractices\nAct,\nand\nany other federal, state or local law dealing with discrimination on any basis, including sex, race, national origin, veteran status, marital status, religion, disability, sexual orientation reservist status or age. ou also agree\nthat, except to the extent otherwise provided by law, this Release and Waiver includes claims based on any statute or on any contract or tort theories, whether based on common law or otherwise. This Release and Waiver does not apply to\nclaims arising\nunder any workers' compensation statute, except it does apply to claims for wrongful discharge or other discrimination in employment for exercising rights under such statute.\n3.\nIf any claim is not subject to release, to the extent permitted by law, you waive any right or ability to be a class or collective action representative or to otherwise participate in any putative or certified\nclass, collective or multi-party action or proceeding based on such a claim in which Colt and A ffiliates or Associated Persons are parties. You promise not to consent to become a member of any class or collective in which claims are\nasserted against Colt and A ffiliates or A ssociated Persons that are related in any way to your employment or the termination of your employment with Colt. If, without your prior knowledge and consent, you are made a member of a class\nin any such proceeding, you agree to opt out of the class at the first opportunity.\n4.\nThis Release and Waiver applies to all complaints, claims or demands based on any facts or events, whether known or unknown by you, that occurred on or before the date you sign this Agreement.\nc.\nELIGIBILITY REQUIREMENTS/APPLICABLE DATA: In order to eliminate certain redundancies and duplication of services following Colt's acquisition of Colt Manufacturing Company LLC,\nColt has elected to implement the Human Resources 2014 Restructuring Program (the "Program"). This program has been developed to establish a streamlined, reorganization of the Human Resources function which will realign\nfunctional and task responsibilities in order to improve its ability to consistently and effectively deliver best practice performance. In addition, this and other reorganizations will support the new company leadership team and in support of\nthe 8Q Plan and enhanced stockholder value.\nIndividual(s) who are eligible to participate in the Program have been or will be selected for termination from their employment based on Colt's business needs and consideration of one or more of the following eligibility\ncriteria\n1.\nthe duplication and/or redundancy of the functions the individuals performs when compared with the functions performed by other individuals;\n2.\nthe individual's disciplinary history compared to other individuals performing the same or similar job functions;\n3.\nthe flexibility of the individual's skills including the individual's ability to perform multiple or varied functions according to business need, compared to the flexibility of the skills of individuals in the same or\nsimilar job classification;\n4.\nthe individual's performance and competency performing ob-related tasks as compared to the perforance and competency of other employees in the same job classification and business unit in performing\njob-related tasks\n5.\nthe individual's ability to assume, and perform competently, additional responsibilities following implementation of the Program\nAttached as Exhibit "A' is a list of the job title and ages of all individuals who have been selected for the Program as of their last date of employment with Colt A ttached as Exhibit B" is list of the job titles and ages of all individuals\nin the same decisional unit as you who have not been selected for the Program as of the date you receive this Agreement.\nD.\nNO FUTURE LAWSUITS: You promise never to file a lawsuit against Colt and Affiliates or Associated Persons, including but not limited to claims arising from or related to your employment with\nColt or the termination of that employment. Except as set forth in the preceding sentence, you further promise never to assist voluntarily any other person or entity filing a lawsuit or contemplating filing a lawsuit that asserts any claim or\ndemand against Colt\n2\nand ffiliates or Associated Persons. Colt and you acknowledge that this Agreement does not limit either party's right, where applicable, to file or to participate in an investigative proceeding of any federal, state or local governmental\nagency. To the extent permitted by law if a claim is brought in any forum by you or on your behalf against Colt and Affiliates or Associated Persons you hereby agree that you waive any right to recover damages or any other relief\nin\nsuch proceeding.\nE.\nPROTECTION OF CONFIDENTIAL AND PROPRIETARY INFORMATION, SURRENDER OF MATERIALS: (1) You acknowledge that you have signed and are bound by the Employee\nInvention and Confidential Information Agreement ("Confidentiality Agreement"). As material condition of your eligibility for the Separation Benefits, you expressly reaffirm your obligation to abide by the Confidentiality Agreement\nand agree tha you will do so. You further understand and agree that a violation or other failure to abide by the Confidentiality Agreement will result in forfeiture of the Separation Benefits described in Section A above and/or an\nobligation promptly to reimburse Colt for the cost of any Separation Benefits, including Separation Pay, that have already been paid or provided to you. (2) You affirm that you have returned to Colt all company property, including but\nnot limited to vehicle, door, file and other keys; laptops or other computers; computer software or hardware; telephones; PDAs electronic devices, or other such devices; credit cards equipment; and records, files or other documents,\nincluding electronically created or stored documents. You agree that you have not and will not retain any copies or excerpts of the materials described above, and that you will not attempt to retrieve or recreate any of the materials\ndescribed above after the Separation Date.\nF.\nAFFIRMATIONS: You affirm that you have been paid and/or have received all compensation, wages, bonuses, commission, vacation time and other benefits to which you may be entitled. You further\naffirm that you are not eligible for any additional severance or other pay other than as expressly set forth in this Agreement.\nYou affirm tha you are not aware of any compliance issues relating to Colt and Affiliates or Associated Persons. If you are aware of any such issues you affirm that such issues have been reported to Colt in accordance\nwith Colt policies\nG.\nCONFIDENTIALITY OF AGREEMENT: You agree to keep confidential the terms of this Agreement and will not disclose them to any person or entity, except as required by law and except that you\nmay\ndisclose the terms of this Agreement to immediate family member(s) and to your legal or financial counselors or advisors, so long as you first inform any such individuals of this Confidentiality provision and so long as they agree to\ncomply with this Confidentiality provision.\nH.\nNON-DISPARAGEMENT: ou agree that neither you nor anyone acting on your behalf will initiate or engage in any communication whatsoever with any person, which could reasonably be interpreted\nas derogatory or disparaging to or about Colt and Affiliates or Associated Persons.\nI.\nGOVERNING LAW: This greement shall be governed by and construed under the laws of the State of Connecticut.\nJ.\nTIME TO CONSIDER AGREEMENT: Y ou acknowledge and agree that you have been given an adequate and reasonable period of time to consider this Agreement. Specifically, you have at least\nforty-five (45) days from the date you received this Agreement within which to consider and sign it. If you do sign the Agreement, you then have a seven (7) day period thereafter within which you may revoke "Revocation Period"), if\nyou so choose.\n3\nRevocation of this Agreement would render all of its provisions including but not limited to Paragraphs A and B above nul and void, and you will not receive any separation payment. If you do choose to revoke this Agreement, you must\nprovide written notice of revocation, within the seven (7) day period after signing this Agreement, to John Coghlin, Senior Vice President and General Counsel, Colt's Manufacturing Company LLC, by fax, e-mail or mail. This\nAgreement shall become effective after the expiration of the seven (7) day Revocation Period with no revocation ("Effective Date").\nK\nENTIRE AGREEMENT: You have not relied on any representations, promises or agreements of any kind made to you in connection with your decision to sign this Agreement. This Agreement and\nthe Confidentiality Agreement as described above set forth the entire agreement between you and Colt and render null and void any and all prior or contemporaneous oral or written understandings, statements representations or promises,\nexcept as otherwise expressly stated above. No changes to this Agreement shall be made, except in writing and signed by both parties.\nYOU YOUARE ARE HEREBY ADVISED THAT YOU HAVE UP TO FORTY-FIVE (45) CALENDAR DAYS TO CONSIDER THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL\nRELEASE OF CLAIMS. YOUAR ALSO ADVISED TO CONSULT WITH ATTORNEY PRIOR TO SIGNING THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS.\nOUAGREE THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS,\nDO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL FORTY-FIVE (45) CALENDAR DAY CONSIDERATION PERIOD.\nYOU FREELY AND KNOWINGLY AND AFTER DUE CONSIDERATION, ENTER INTO THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF\nCLAIMS INTENDING TO WAIVE SETTLE AND RELEASE ALL CLAIMS OUHAVE OR MIGHT HAVE AGAINST COLT DEFENSE AND AFFILIATES OR ASSOCIATED PERSONS AS OF THE DATE YOU\nSIGN THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS.\nYou have read, understand and voluntarily execute this Agreement and assent to its terms, affirming that your decision to sign this Agreement has been made freely and without any duress or coercion. Please return the signed\nAgreement\nto John Coghlin, Senior Vice President and General Counsel at Colt's Manufacturing Company LLC.\nDated:\nNovember 4 2014\nfor\n/s/ Dennis Veilleux\nColt's Manufacturing Company LLC\nBy: Dennis Veilleux, President and Chief Executive Officer\nDated:\nNovember 4, 2014\n/s/ John Michael Magouirk\nJ ohn Michaer Magouirk\n4\nEXHIBIT A\nINDIVIDUALS SELECTED FOR THE\nCOLT'S MANUFACTURING COMPANY LLC RESTRUCTURING PROGRAM\n(Vice President Sales Grade 19)\nJob Title\nIndividual' s. Age on His/Her Separation Date\nSr. Vice President/COO\n52.4 years\n5\nEXHIBIT B\nINDIVIDUALS NOT SELECTED FOR THE\nCOLT'S MANUFACTURING COMPANY LLC RESTRUCTURING PROGRAM\nIN THE SAME DECISIONAL UNIT ASYOU\nDECISIONAL UNIT: Sr. Vice President/C00 Grade\nJob Title\nIndividual's Age o on Your Separation Date\nUnique Job Grade and responsibility- No\nother individuals\n6	EX-10 .1 2 a14-24845 _1ex10d1.htm EX-10.1\nExhibit 10.1\nCONFIDENTIAL SEPARATION AGREEMENT\nAND GENERAL RELEASE OF CLAIMS\nThis Agreement is a contract between John Michael Magouirk (“you”) and Colt’s Manufacturing Company LLC (“Colt”) relating to your separation from Colt, effective November 14, 2014 (the “Separation Date”). You\nshould thoroughly review and understand the Agreement before signing it, and you are advised to consult with counsel before signing this Agreement.\nA.\nBENEFITS FOR SIGNING THIS AGREEMENT: In exchange for your execution of this Agreement and subject to the terms and conditions of this Agreement, Colt agrees to provide you with the\nfollowing benefits in connection with your separation (collectively, the “Separation Benefits”):\n1.\nContinuation of your salary (not including any bonus or incentive compensation) as of the Separation Date for fifty-two weeks (“Separation Pay”) at a weekly rate of $7,210 for a total amount of $374,920\nless appropriate taxes and withholdings. Payment of the Separation Pay in the form of salary continuation shall commence, in accordance with Colt regular payroll practices, following the Effective Date of this Agreement, as set forth in\nSection J below.\n2.\nIf applicable, continuation of your participation in Colt group health plans through December 31, 2014, on the same terms and conditions as existed immediately prior to the Separation Date, including\nyour responsibility to pay the employee portion of the coverage. If applicable, after December 31, 2014, you may be eligible to continue health benefits under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) at your\nsole expense.\nB.\nRELEASE AND WAIVER:\n1.\nIn exchange for the payments and other consideration described above, you agree to release Colt and any and all of its parents, subsidiaries, affiliates, predecessors, successors and assigns (herein referred\nto collectively as “Colt and Affiliates”), from any and all claims, demands, actions, or liabilities you may have against them, or any one of them, of whatever kind, including but not limited to those which are related in any way to your\nemployment by Colt and Affiliates or the termination of that employment. You also agree to release from all claims, demand, actions, or liabilities the past, present, and future principals, agents, directors, officers, employees, fiduciaries,\nrepresentatives, successors and assigns of Colt and Affiliates (hereinafter, “Associated Persons”). You agree that you have executed this Agreement on your own behalf, and also on behalf of any heirs, agents, representatives, successors\nand assigns that you may have now or in the future.\n2.\nYou agree that this Release and Waiver covers, but is not limited to, claims arising under Title VII of the Civil Rights Act of 1964, as amended, the Employee Retirement Income Security Act of 1974, as\namended (also known as “ERISA”), the Age Discrimination in Employment Act as amended by the Older Workers Benefit Protection Act (“OWBPA”), the Americans with Disabilities Act of 1990, the Connecticut Fair Employment\nPractices Act, and any other federal, state or local law dealing with discrimination on any basis, including sex, race, national origin, veteran status, marital status, religion, disability, sexual orientation, reservist status or age. You also agree\nthat, except to the extent otherwise provided by law, this Release and Waiver includes claims based on any statute or on any contract or tort theories, whether based on common law or otherwise. This Release and Waiver does not apply to\nclaims arising\nunder any workers’ compensation statute, except it does apply to claims for wrongful discharge or other discrimination in employment for exercising rights under such statute.\n3.\nIf any claim is not subject to release, to the extent permitted by law, you waive any right or ability to be a class or collective action representative or to otherwise participate in any putative or certified\nclass, collective or multi-party action or proceeding based on such a claim in which Colt and Affiliates or Associated Persons are parties. You promise not to consent to become a member of any class or collective in which claims are\nasserted against Colt and Affiliates or Associated Persons that are related in any way to your employment or the termination of your employment with Colt. If, without your prior knowledge and consent, you are made a member of a class\nin any such proceeding, you agree to opt out of the class at the first opportunity.\n4.\nThis Release and Waiver applies to all complaints, claims or demands based on any facts or events, whether known or unknown by you, that occurred on or before the date you sign this Agreement.\nC.\nELIGIBILITY REQUIREMENTS/APPLICABLE DATA: In order to eliminate certain redundancies and duplication of services following Colt’s acquisition of Colt Manufacturing Company LLC,\nColt has elected to implement the Human Resources 2014 Restructuring Program (the “Program”). This program has been developed to establish a streamlined, reorganization of the Human Resources function which will realign\nfunctional and task responsibilities in order to improve its ability to consistently and effectively deliver best practice performance. In addition, this and other reorganizations will support the new company leadership team and in support of\nthe 8Q Plan and enhanced stockholder value.\nIndividual(s) who are eligible to participate in the Program have been or will be selected for termination from their employment based on Colt’s business needs and consideration of one or more of the following eligibility\ncriteria:\n1.\nthe duplication and/or redundancy of the functions the individuals performs when compared with the functions performed by other individuals;\n2.\nthe individual’s disciplinary history compared to other individuals performing the same or similar job functions;\n3.\nthe flexibility of the individual’s skills, including the individual’s ability to perform multiple or varied functions according to business need, compared to the flexibility of the skills of individuals in the same or\nsimilar job classification;\n4.\nthe individual’s performance and competency performing job-related tasks as compared to the performance and competency of other employees in the same job classification and business unit in performing\njob-related tasks\n5.\nthe individual’s ability to assume, and perform competently, additional responsibilities following implementation of the Program.\nAttached as Exhibit “A” is a list of the job title and ages of all individuals who have been selected for the Program as of their last date of employment with Colt. Attached as Exhibit “B” is a list of the job titles and ages of all individuals\nin the same decisional unit as you who have not been selected for the Program as of the date you receive this Agreement.\nD.\nNO FUTURE LAWSUITS: You promise never to file a lawsuit against Colt and Affiliates or Associated Persons, including but not limited to claims arising from or related to your employment with\nColt or the termination of that employment. Except as set forth in the preceding sentence, you further promise never to assist voluntarily any other person or entity filing a lawsuit or contemplating filing a lawsuit that asserts any claim or\ndemand against Colt\n2\nand Affiliates or Associated Persons. Colt and you acknowledge that this Agreement does not limit either party’s right, where applicable, to file or to participate in an investigative proceeding of any federal, state or local governmental\nagency. To the extent permitted by law, if a claim is brought in any forum by you or on your behalf against Colt and Affiliates or Associated Persons, you hereby agree that you waive any right to recover damages or any other relief in\nsuch proceeding.\nE.\nPROTECTION OF CONFIDENTIAL AND PROPRIETARY INFORMATION, SURRENDER OF MATERIALS: (1) You acknowledge that you have signed and are bound by the Employee\nInvention and Confidential Information Agreement (“Confidentiality Agreement”). As a material condition of your eligibility for the Separation Benefits, you expressly reaffirm your obligation to abide by the Confidentiality Agreement\nand agree that you will do so. You further understand and agree that a violation or other failure to abide by the Confidentiality Agreement will result in forfeiture of the Separation Benefits described in Section A above and/or an\nobligation promptly to reimburse Colt for the cost of any Separation Benefits, including Separation Pay, that have already been paid or provided to you. (2) You affirm that you have returned to Colt all company property, including but\nnot limited to vehicle, door, file and other keys; laptops or other computers; computer software or hardware; telephones; PDAs, electronic devices, or other such devices; credit cards; equipment; and records, files or other documents,\nincluding electronically created or stored documents. You agree that you have not and will not retain any copies or excerpts of the materials described above, and that you will not attempt to retrieve or recreate any of the materials\ndescribed above after the Separation Date.\nF.\nAFFIRMATIONS: You affirm that you have been paid and/or have received all compensation, wages, bonuses, commission, vacation time and other benefits to which you may be entitled. You further\naffirm that you are not eligible for any additional severance or other pay other than as expressly set forth in this Agreement.\nYou affirm that you are not aware of any compliance issues relating to Colt and Affiliates or Associated Persons. If you are aware of any such issues, you affirm that such issues have been reported to Colt in accordance\nwith Colt policies.\nG.\nCONFIDENTIALITY OF AGREEMENT: You agree to keep confidential the terms of this Agreement and will not disclose them to any person or entity, except as required by law and except that you\nmay disclose the terms of this Agreement to immediate family member(s) and to your legal or financial counselors or advisors, so long as you first inform any such individuals of this Confidentiality provision and so long as they agree to\ncomply with this Confidentiality provision.\nH.\nNON-DISPARAGEMENT: You agree that neither you nor anyone acting on your behalf will initiate or engage in any communication whatsoever with any person, which could reasonably be interpreted\nas derogatory or disparaging to or about Colt and Affiliates or Associated Persons.\nI.\nGOVERNING LAW: This Agreement shall be governed by and construed under the laws of the State of Connecticut.\nJ.\nTIME TO CONSIDER AGREEMENT: You acknowledge and agree that you have been given an adequate and reasonable period of time to consider this Agreement. Specifically, you have at least\nforty-five (45) days from the date you received this Agreement within which to consider and sign it. If you do sign the Agreement, you then have a seven (7) day period thereafter within which you may revoke it (“Revocation Period”), if\nyou so choose.\n3\nRevocation of this Agreement would render all of its provisions, including but not limited to Paragraphs A and B above null and void, and you will not receive any separation payment. If you do choose to revoke this Agreement, you must\nprovide written notice of revocation, within the seven (7) day period after signing this Agreement, to John Coghlin, Senior Vice President and General Counsel, Colt’s Manufacturing Company LLC, by fax, e-mail or mail. This\nAgreement shall become effective after the expiration of the seven (7) day Revocation Period with no revocation (“Effective Date”).\nK\nENTIRE AGREEMENT: You have not relied on any representations, promises, or agreements of any kind made to you in connection with your decision to sign this Agreement. This Agreement and\nthe Confidentiality Agreement as described above set forth the entire agreement between you and Colt and render null and void any and all prior or contemporaneous oral or written understandings, statements, representations or promises,\nexcept as otherwise expressly stated above. No changes to this Agreement shall be made, except in writing and signed by both parties.\nYOU ARE HEREBY ADVISED THAT YOU HAVE UP TO FORTY-FIVE (45) CALENDAR DAYS TO CONSIDER THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL\nRELEASE OF CLAIMS. YOU ARE ALSO ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS.\nYOU AGREE THAT ANY MODIFICATIONS, MATERIAL OR OTHERWISE , MADE TO THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS,\nDO NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL FORTY-FIVE (45) CALENDAR DAY CONSIDERATION PERIOD.\nYOU FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION , ENTER INTO THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF\nCLAIMS INTENDING TO WAIVE, SETTLE AND RELEASE ALL CLAIMS YOU HAVE OR MIGHT HAVE AGAINST COLT DEFENSE AND AFFILIATES OR ASSOCIATED PERSONS AS OF THE DATE YOU\nSIGN THIS CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE OF CLAIMS.\nYou have read, understand and voluntarily execute this Agreement and assent to its terms, affirming that your decision to sign this Agreement has been made freely and without any duress or coercion. Please return the signed Agreement\nto John Coghlin, Senior Vice President and General Counsel at Colt’s Manufacturing Company LLC.\nDated:\nNovember 4, 2014\nfor\n/s/ Dennis Veilleux\nColt’s Manufacturing Company LLC\nBy: Dennis Veilleux, President and Chief Executive Officer\nDated:\nNovember 4, 2014\n/s/ John Michael Magouirk\nJohn Michael Magouirk\n4\nEXHIBIT A\nINDIVIDUALS SELECTED FOR THE\nCOLT’S MANUFACTURING COMPANY LLC RESTRUCTURING PROGRAM\n(Vice President Sales Grade 19)\nJob Title\nIndividual’s Age on His/Her Separation Date\nSr. Vice President/COO\n52.4 years\n5\nEXHIBIT B\nINDIVIDUALS NOT SELECTED FOR THE\nCOLT’S MANUFACTURING COMPANY LLC RESTRUCTURING PROGRAM\nIN THE SAME DECISIONAL UNIT AS YOU\nDECISIONAL UNIT: Sr. Vice President/COO Grade\nJob Title\nIndividual’s Age on Your Separation Date\nUnique Job Grade and responsibility- No\nother individuals\n6
+1c36bbc314ee3f0cbe059d15d4fdd36a.pdf	effective_date jurisdiction party term	EX-99.(D)(9) 3 a16-19711_1ex99dd9.htm EX-99.(D)(9)\nExhibit (d)(9)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated and effective as of November 28, 2015, between Affinity Gaming, a\nNevada corporation (the “Company”), and Z Capital Partners L.L.C ., a Delaware limited liability company (“Receiving Party”).\nWhereas, Receiving Party has requested the Company to provide certain information in connection with Receiving Party’s consideration\nof a potential transaction (the “Potential Transaction”) involving the Company and Receiving Party, and the Company desires to protect the\nconfidentiality of the information that it provides and to have Receiving Party take or abstain from taking certain actions in accordance with the\nprovisions of this Agreement.\nNow, therefore, in consideration of the mutual covenants and promises contained in this Agreement and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\n1.\nDefinitions.\n(a)\n“Evaluation Material” means any information (whether prepared by the Company or its Representatives (as defined\nherein) or any other person, and regardless of the form of communication, including whether written, oral or otherwise) that is furnished or made\navailable to Receiving Party or any of its Representatives by or on behalf of the Company or any of its Representatives, on or after the date\nhereof, and all notes, analyses, compilations, studies, interpretations, memoranda, reports, projections, forecasts or other documents or materials\n(regardless of the form thereof) prepared by Receiving Party or any of its Representatives which contain or otherwise reproduce or reflect, in\nwhole or in part, any such information; provided, that “Evaluation Material” does not include information which:\n(i)\nis or becomes generally available to the public other than as a result of an act or omission directly or\nindirectly by Receiving Party or any of its Representatives in violation of this Agreement or any other obligation of confidentiality (contractual,\nfiduciary, or otherwise) known by, or that reasonably should have been known by, Receiving Party or any of its Representatives;\n(ii)\nis already in Receiving Party’s or any of its Representatives’ possession and was not furnished by or on\nbehalf of the Company or its Representatives, provided, that such information is not known by, or reasonably should have been known by,\nReceiving Party or any of its Representatives to be subject to another confidentiality agreement or other obligation of confidentiality (contractual,\nfiduciary, or otherwise);\n(iii) becomes available to Receiving Party or any of its Representatives on a non-confidential basis from a source\nother than the Company or any of its Representatives, provided, that Receiving Party and its Representatives do not have knowledge, and could\nnot reasonably have known, that such information is subject to another confidentiality agreement or other obligation of confidentiality\n(contractual, fiduciary, or otherwise); or\n(iv) is independently developed by Receiving Party or its Representatives without the use of, reference to or\nreliance upon any information furnished to Receiving Party or any of its Representatives by or on behalf of the Company or any of its\nRepresentatives and without any violation of this Agreement or any other obligation of confidentiality (contractual, fiduciary, or otherwise)\nknown by, or that reasonably should have been known by, Receiving Party or any of its Representatives.\n1\n(b)\n“Representatives” means, with respect to a party, such party and the directors, officers, employees, affiliates,\nmembers, agents, or advisors (including attorneys, accountants, financial advisers, consultants and investment bankers) of such party and, in the\ncase of Receiving Party, any debt financing source that at the date hereof is listed on Exhibit A or after the date hereof is specifically approved in\nwriting in advance by the Company for Receiving Party in connection with the Potential Transaction; provided that, for the purposes of this\nAgreement, no such person shall be deemed a “Representative” of Receiving Party, nor shall Receiving Party have any liability for such person,\nunless such person has been furnished with Evaluation Material or Transaction Information or is acting at the direction of Receiving Party or any\naffiliate or Representative of Receiving Party.\n(c)\nThe term “person” means any corporation, company, partnership, joint venture, group, limited liability company, or\nother entity or individual; the term “affiliate” has the meaning set forth in Rule 12b-2 under the Securities Exchange Act of 1934, as amended\n(such Act, as amended, being referred to herein as the “Exchange Act”), provided, that the Company, and persons controlled by the Company,\nshall be deemed not to be an affiliate of Receiving Party; and the term “including” and correlative terms shall be deemed to be followed by\n“without limitation”.\n2.\nUse and Disclosure of Evaluation Material.\n(a)\nReceiving Party agrees that it shall, and that it shall use commercially reasonable efforts to cause its Representatives\nto:\n(i)\nuse the Evaluation Material solely for the purpose of evaluating and negotiating the Potential Transaction;\nand\n(ii)\nexcept as provided in Section 3 hereof, keep the Evaluation Material confidential and not disclose any\nEvaluation Material, directly or indirectly, to any other person;\nprovided, that the foregoing provisions of this sub-section (a) shall not prohibit the two (2) officers of Receiving Party who as of the date hereof\nare directors of the Company from using Evaluation Material received by them in their capacities as directors of the Company as and to the\nextent required by their fiduciary duties as directors of the Company under applicable law.\nNotwithstanding the foregoing provisions of this sub-section (a), Receiving Party may disclose Evaluation Material to Receiving Party’s\nRepresentatives who need to know such information for the sole purpose of evaluating and negotiating the Potential Transaction, provided, that\nReceiving Party’s Representatives prior to any such disclosure are informed of the confidential nature of such Evaluation Material and are\ndirected (i) to use such information solely for the purpose of evaluating and negotiating the Potential Transaction and (ii) to maintain the\nconfidentiality of such Evaluation Material.\n(b)\nExcept as provided in Section 3 hereof, the Company and Receiving Party agree that neither the Company, Receiving\nParty nor any of their respective Representatives shall disclose to any person (other than their respective Representatives to the extent permitted\nhereby) (i) the existence of this Agreement, (ii) the fact that Evaluation Material has been or may be requested, received or made available to it,\n(iii) that investigations, discussions or negotiations are taking (or have taken) place concerning, or that the Company and Receiving Party are\nconsidering, a possible transaction, (iv) any of the terms, conditions or other facts with respect thereto, or (v) the status of such discussions\n(collectively, the “Transaction Information”); provided, that notwithstanding the foregoing, the Company will not be restricted in disclosing any\nTransaction Information to the Company’s stockholders, debtholders or other stakeholders, or have any restrictions under this Agreement with\nrespect to any Transaction Information\n2\nthat is or becomes generally available to the public other than as a result of an act or omission directly or indirectly by the Company or any of its\nRepresentatives in violation of this Section 2(b).\n(c)\nReceiving Party shall be directly responsible and liable to the Company for any use or disclosure by any of Receiving\nParty’s Representatives of any Evaluation Material or Transaction Information which, if done by Receiving Party itself, would be a breach of this\nAgreement, it being understood that such responsibility and liability shall be in addition to and not by way of limitation of any right or remedy\nthe Company may have against Receiving Party’s Representatives with respect to such breach. Receiving Party agrees, at its sole expense, to take\ncommercially reasonable measures to restrain its Representatives from making or allowing to be made prohibited or unauthorized uses or\ndisclosures of Evaluation Material and Transaction Information under this Agreement.\n(d)\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties\nunderstand and agree that they have a commonality of interest with respect to such matters and it is their mutual desire, intention and\nunderstanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material\nor its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is\nentitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to\nsuch protection under these privileges or doctrines, under this Agreement and under the joint defense doctrine.\n(e)\nAll Evaluation Material shall remain the property of the Company and/or its applicable subsidiary. No license or,\nexcept as provided in Section 2(a) hereof, right to use or other similar rights with respect to the Evaluation Material are granted to Receiving\nParty or any of its Representatives, by implication or otherwise.\n(f)\nReceiving Party represents and warrants that neither it nor any of its Representatives has entered into, and agrees that\nwithout the Company’s prior written consent none of Receiving Party and its Representatives will enter into, any discussions or any agreement,\nunderstanding or arrangement (whether or not binding), directly or indirectly, with, and will not otherwise directly or indirectly approach, (i) any\nperson with respect to or relating to participation by such person or others (whether as club participant, principal, co-investor, co-bidder,\nfinancing source or otherwise) in any transaction with or relating to the Company (whether before or after the closing of any transaction) or any\nof its subsidiaries or (ii) any stockholder, director (other than (x) the two (2) directors of the Company who as of the date hereof are also officers\nof Receiving Party and (y) the members of the Special Committee of the Board of Directors of the Company in their capacities as such), officer\nor other employee of the Company or any of its subsidiaries with respect to or relating to a transaction with the Company or any of its businesses\nor operations from and after any such transaction, including as to any equity “rollover” or any employment with or consulting services to the\nCompany or any affiliate thereof.\n3.\nLegally Required Disclosure.\nIf the Company, Receiving Party or any of their respective Representatives is requested or required (by oral questions, interrogatories,\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any\nEvaluation Material or Transaction Information, such party shall, to the extent permitted by law, promptly provide the other party with written\nnotice of any such request or requirement (and the terms and conditions thereof). If the other party seeks a protective order or other remedy, the\nparty subject to such request or requirement (the “recipient”) shall, at the other party’s expense, provide such cooperation as the other party shall\n3\nreasonably request. If, in the absence of a protective order or other remedy or the receipt by the recipient of a waiver from the other party, the\nrecipient or any of its Representatives is nonetheless required to disclose Evaluation Material or Transaction Information to any tribunal or other\nentity, then the recipient or such Representative may, without liability hereunder, disclose to such tribunal or other entity that portion (but only\nthat portion) of the Evaluation Material or Transaction Information that is legally required to be disclosed, provided, that recipient and such\nRepresentative shall exercise commercially reasonable efforts to minimize the disclosure of Evaluation Material or Transaction Information and\nto preserve the confidentiality thereof, including by seeking, at the other party’s expense, to obtain a protective order or other assurance that\nconfidential treatment will be accorded to such Evaluation Material or Transaction Information. Notwithstanding the foregoing, (a) the recipient\nand its Representatives shall not be required to notify the other party where disclosure is in connection with a routine audit or examination by a\nregulatory authority, bank examiner or auditor that does not explicitly reference the other party, the Transaction or this Agreement and (b) the\nrecipient and its applicable affiliates shall not be required to notify the other party, and shall be permitted to publicly disclose this Agreement, the\nexclusivity agreement entered into between the Company and the Receiving Party dated as of the date hereof (and any amendment or termination\nhereof or thereof), any Confidential Information or Transaction Information to the extent required in order to comply with the rules and\nregulations of the U.S. Securities and Exchange Commission or the federal securities laws.\n4.\nReturn of Evaluation Material.\nAt any time upon the written request of the Company (in its sole discretion and for any or no reason), Receiving Party shall promptly\n(and in any event within ten (10) business days after such request) return to the Company (or, at Receiving Party’s option, destroy) all Evaluation\nMaterial (and all copies thereof) furnished to Receiving Party or its Representatives by or on behalf of the Company or its Representatives, or\nprepared by Receiving Party or any of its Representatives, and shall not retain any copies, extracts or other reproductions (including Evaluation\nMaterial stored in any computer or other electronic storage device) in whole or in part of such material. Any such destruction shall be certified in\nwriting to the Company by an authorized officer of Receiving Party upon the request of the Company.\nNotwithstanding the return or destruction of Evaluation Material, Receiving Party and its affiliates and Representatives shall continue to\nbe bound by their obligations hereunder.\nNotwithstanding the foregoing, it is understood that information in an intangible or electronic format containing Evaluation Material\nthat cannot through commercially reasonable means be removed, erased or otherwise deleted from archival systems may be so retained, and that\nReceiving Party and its Representatives may retain Evaluation Material solely to the extent required under any applicable law, statute, rule,\nregulation or established internal compliance or document retention policy; provided that Receiving Party and such Representatives shall\ncontinue to be bound by their confidentiality and other obligations hereunder with respect to all such Evaluation Material.\n5.\nTerm.\nNotwithstanding anything to the contrary stated herein, the obligations set forth in this Agreement shall continue until the earlier of\n(i) the second (2nd) anniversary of the date hereof and (ii) consummation of the Potential Transaction.\n6.\nNonsolicitation.\nReceiving Party agrees that, for a period of twelve (12) months from the date hereof, neither it nor any of its affiliates, nor any other\nperson acting at its or its affiliates’ direction or on its or its affiliates’ behalf, shall, directly or indirectly, solicit to employ or entice away or offer\nto enter into any\n4\nagreement with any person who is an officer, employee at or above corporate vice president, or manager of the Company or any of its\nsubsidiaries; provided, that this section shall not prevent Receiving Party or its affiliates from soliciting or hiring a person identified above (a\n“Covered Person”) (i) if such Covered Person responds to a general solicitation of employment not specifically directed toward the Company or\nany of its subsidiaries or particular employees of the Company or any of its subsidiaries (including general solicitations made through executive\nrecruitment or placement agencies not directed to employees of the Company or any of its subsidiaries), (ii) if such Covered Person approaches\nReceiving Party or any of its affiliates on an unsolicited basis or (iii) following cessation of such Covered Person’s employment with the\nCompany or any of its subsidiaries without any solicitation or encouragement by Receiving Party or any of its Affiliates.\n7.\n[Reserved]\n8.\nGaming Regulations.\nReceiving Party acknowledges that the Company and its subsidiaries conduct a business that is subject to, and exists because of,\nprivileged licenses issued by various governmental authorities. Receiving Party acknowledges that the Company is subject to the provisions of\nthe following acts and any rules, regulations or orders promulgated thereunder: (i) the Nevada Gaming Control Act, (ii) Colorado Limited\nGaming Act and Colorado Code of Regulations, (iii) the applicable gaming laws and regulations of Missouri, (iv) the applicable gaming laws and\nregulations of Iowa or (v) any other act, law, statute, ordinance, rule, regulation or tribal compact governing any casino operation of the\nCompany and its subsidiaries (collectively, the “Acts”), which prohibits a gaming licensee from entering into any contract or agreement with\n(a) a person who is found unsuitable, who is denied a license, or whose license was revoked by the gaming authorities of (1) Nevada,\n(2) Colorado, (3) Missouri, (4) Iowa or (5) any other gaming regulatory board, agency or commission having regulatory authority over the\nCompany and its subsidiaries (each a “Commission”), or (b) any business enterprise under control of such person without the prior approval of\nthe appropriate Commission.\nReceiving Party will use its reasonable efforts to comply with and to cause each of its affiliates and other Representatives to comply\nwith the requirements of all Acts to the extent the Acts apply to Receiving Party.\n9.\nTrading in Securities.\nReceiving Party acknowledges that it is aware (and that its Representatives who receive any Evaluation Material or Transaction\nInformation will be so advised) that applicable securities laws generally prohibit any person who is aware of material, non-public information\nabout a company obtained directly or indirectly from that company from purchasing or selling securities of such company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell such securities.\n10.\nNo Representations and Warranties; Relationship to Definitive Agreement.\n(a)\nReceiving Party understands and agrees that neither the Company nor any of its respective affiliates or\nRepresentatives, nor any other person on any of their behalves, has made or is making, and that each of the foregoing hereby disclaims, any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of any of the Evaluation Material, and Receiving Party\nrepresents that neither it nor any of its affiliates or Representatives has relied, is relying, is entitled to rely on or will rely upon any such\nrepresentation or warranty, in each case except as may be set forth in any definitive agreement with respect to a Transaction. Receiving Party\nagrees that neither the Company nor\n5\nany of its respective affiliates or Representatives, nor any other person on any of their behalves, shall have any liability to Receiving Party or any\nof its affiliates or Representatives or any other person relating to or resulting from any use of the Evaluation Material or any errors therein or\nomissions therefrom, in each case except as may be set forth in any definitive agreement with respect to a Transaction. Without limiting the\ngenerality of the preceding two sentences, the Evaluation Material may include statements, estimates and projections provided by the Company\nor its affiliates or Representatives with respect to the anticipated future performance of the Company. Such statements, estimates and projections\nreflect various assumptions made by the Company concerning anticipated results, which assumptions may or may not prove to be correct. No\nrepresentations are made as to the accuracy of such assumptions, statements, estimates or projections. Only those representations or warranties\nwhich are made in a definitive agreement, when, as and if executed, and subject to such limitations and restrictions as may be specified therein,\nwill have any legal effect. For purposes of this Agreement, the term “definitive agreement” does not include any executed letter of intent or any\nother preliminary written agreement, nor does it include any written or verbal acceptance of any offer or bid made by one party.\n(b)\nNo contract or agreement providing for any transaction involving the parties shall be deemed to exist unless and until\na definitive agreement has been executed and delivered. Unless and until a definitive agreement regarding a transaction has been executed and\ndelivered, neither party hereto will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this\nAgreement or any other written or oral communication with respect to such transaction, except for the matters specifically agreed to herein.\n(c)\nThe Company reserves the right, in its sole discretion, to reject any and all proposals made by Receiving Party with\nregard to a transaction between the parties and to terminate discussions and negotiations with Receiving Party at any time and for any reason or\nno reason. Receiving Party agrees that the Company and its affiliates and Representatives shall be free to conduct any process for any transaction\nin such manner as they or any of them, in their or its sole discretion, shall determine (including negotiating with other parties and entering into a\npreliminary or definitive agreement without prior notice to Receiving Party or any other person), and that any procedures relating to such process\nor transaction may be changed at any time without notice to Receiving Party or any other person.\n11.\nContacts and Communications.\nReceiving Party agrees that all contacts and communications by it or its Representatives with the Company or its Representatives\nregarding the Potential Transaction or the Evaluation Material, all requests for additional information, facility tours or management meetings,\nand all discussions or questions regarding procedures with respect to the Potential Transaction, will be submitted or directed only to those\nindividuals as the Company shall instruct in writing. Without the express prior consent of the Company, Receiving Party agrees that it will not,\ndirectly or indirectly, contact or communicate with any officer, employee, director (other than (x) the two (2) directors of the Company currently\nemployed by Receiving Party and (y) the members of the Special Committee of the Board of Directors of the Company in their capacities as\nsuch), stockholder (other than Receiving Party’s affiliates), agent, affiliate (other than Receiving Party’s affiliates), customer or business partner\nof the Company regarding Evaluation Material or a Potential Transaction between the parties.\n12.\nMiscellaneous.\n(a)\nReceiving Party represents and warrants to the Company that it is acting as a principal in the Potential Transaction and\nnot as part of a group with any third parties (other than affiliates of Receiving Party).\n6\n(b)\nThis Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without\ngiving effect to the conflicts of law principles thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of any\nState or Federal court sitting in Clark County in the State of Nevada over any suit, action or proceeding arising out of or relating to this\nAgreement. Each party hereby agrees that service of any process, summons, notice or document by U.S. registered mail addressed to such party\nshall be effective service of process for any action, suit or proceeding brought against such party in any such court. Each party hereby irrevocably\nand unconditionally waives any objection to the laying of venue of any such suit, action or proceeding brought in any such court and any claim\nthat any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Each party agrees that a final\njudgment in any suit, action or proceeding brought in any such court shall be conclusive and binding upon such party and may be enforced in any\nother courts to whose jurisdiction such party is or may be subject, by suit upon judgment.\n(c)\nReceiving Party recognizes and acknowledges the competitive value and confidential nature of the Evaluation\nMaterial and that irreparable damage may result to the Company if information contained therein or derived therefrom is disclosed to any person\nexcept as herein provided or is used for any purpose other than the evaluation and negotiation of the Potential Transaction. Receiving Party\nfurther acknowledges and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by Receiving Party or\nany of Receiving Party’s Representatives, and that the Company may seek equitable relief, including injunctive relief and specific performance,\nas a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by Receiving\nParty or any of Receiving Party’s Representatives, but shall be in addition to all of the Company’s other remedies available at law or in equity. In\nthe event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, nonappealable order that a party has\nbreached this Agreement, then such party shall be liable for and pay to the other party the reasonable legal fees and disbursements that the other\nparty has incurred in connection with such litigation, including any appeal therefrom.\n(d)\nThis Agreement may not be assigned in whole or in part by either party without the prior written consent of the other\nparty, and any purported assignment without such consent shall be null and void, provided, that the Company may, without the prior written\nconsent of Receiving Party, assign all or any of its rights hereunder to any person who has acquired all or substantially all of the Company’s\noutstanding equity securities or assets. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and\ntheir respective successors and assigns.\n(e)\nThis Agreement contains the entire agreement between the parties concerning the subject matter hereof. No provision\nof this Agreement may be waived or amended except by the express written consent of the parties. No failure or delay by the parties in exercising\nany right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or\nfuture exercise thereof or the exercise of any other right, power or privilege hereunder.\n(f)\nAll notices and other communications hereunder shall be in writing. Any notice or other communication hereunder\nshall be deemed duly delivered one (1) business day after it is sent for next-business-day delivery via a reputable nationwide overnight courier\nservice, in each case to the intended recipient as set forth below, or the same day of delivery if sent by both facsimile and email with\nconfirmation of receipt:\n7\nIf to the Company:\nAffinity Gaming\n3755 Breakthrough Way, Suite 300\nLas Vegas, Nevada 89135\nAttention: Marc Rubinstein, Esq.\nFacsimile: (702) 341-2581\nE-mail: mrubinstein@affinitygaming.com\nWith a copy to:\nMorrison & Foerster LLP\n425 Market Street\nSan Francisco, CA 94105\nAttention: Brandon C. Parris, Esq.\nFacsimile: (415) 276-6352\nE-mail: bparris@mofo.com\nIf to Receiving Party:\nZ Capital Partners L.L.C .\n1330 Avenue of the Americas\nSuite 1100\nNew York, NY 10019\nAttention: Martin Auerbach, Esq.\nFacsimile: (646) 304-0175\nE-mail: mauerbach@zcap.net\nWith a copy to:\nSidley Austin LLP\n1999 Avenue of the Stars, 17 Floor\nLos Angeles, CA 90067\nAttention: Vijay S. Sekhon, Esq.\nFacsimile: (310) 595-9501\nE-mail: vsekhon@sidley.com\nEither party may give any notice or other communication hereunder using any other means (including personal delivery, expedited\ncourier, messenger service, telecopy, telex, ordinary mail or electronic mail), but no such notice or other communication shall be deemed duly\ngiven unless and until the party for whom it is intended actually receives it. Any party may change the address to which notices and other\ncommunications hereunder are to be delivered by giving the other party notice in the manner herein set forth.\n(g)\nFor the convenience of the parties, this Agreement may be executed by facsimile or e-mail and in counterparts, each\nof which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.\n(h)\nThe section headings contained in this Agreement are inserted for convenience only and shall not affect in any way\nthe meaning or interpretation of this Agreement.\n8\n(i)\nIf any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or\nin part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent\npermitted by applicable law and such invalid or unenforceable provision or portion shall be replaced by a provision or term that is valid and\nenforceable and that comes closest to expressing the parties’ intention with respect to such invalid or unenforceable provision or portion.\n[Remainder of page intentionally left blank]\n9\nExecuted as of the date first above written.\nAFFINITY GAMING\nBy: /s/ Marc H. Rubinstein\nTitle: Sr. VP, GC & Secretary\nZ CAPITAL PARTNERS L.L .C .\n/s/ James J. Zenni, Jr.\nBy: James J. Zenni, Jr.\nTitle: President and Chief Executive Officer\n[Signature page to Confidentiality Agreement]\n10\nth	EX-99.(D)(9) 3 a16-19711_1ex99dd9.htm EX-99.(D)(9)\nExhibit (d)(9)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated and effective as of November 28, 2015, between Affinity Gaming, a\nNevada corporation (the “Company”), and Z Capital Partners L.L.C., a Delaware limited liability company (“Receiving Party”).\nWhereas, Receiving Party has requested the Company to provide certain information in connection with Receiving Party’s consideration\nof a potential transaction (the “Potential Transaction”) involving the Company and Receiving Party, and the Company desires to protect the\nconfidentiality of the information that it provides and to have Receiving Party take or abstain from taking certain actions in accordance with the\nprovisions of this Agreement.\nNow, therefore, in consideration of the mutual covenants and promises contained in this Agreement and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\n1. Definitions.\n(a) “Evaluation Material” means any information (whether prepared by the Company or its Representatives (as defined\nherein) or any other person, and regardless of the form of communication, including whether written, oral or otherwise) that is furnished or made\navailable to Receiving Party or any of its Representatives by or on behalf of the Company or any of its Representatives, on or after the date\nhereof, and all notes, analyses, compilations, studies, interpretations, memoranda, reports, projections, forecasts or other documents or materials\n(regardless of the form thereof) prepared by Receiving Party or any of its Representatives which contain or otherwise reproduce or reflect, in\nwhole or in part, any such information; provided, that “Evaluation Material” does not include information which:\n@) is or becomes generally available to the public other than as a result of an act or omission directly or\nindirectly by Receiving Party or any of its Representatives in violation of this Agreement or any other obligation of confidentiality (contractual,\nfiduciary, or otherwise) known by, or that reasonably should have been known by, Receiving Party or any of its Representatives;\n(ii) is already in Receiving Party’s or any of its Representatives’ possession and was not furnished by or on\nbehalf of the Company or its Representatives, provided, that such information is not known by, or reasonably should have been known by,\nReceiving Party or any of its Representatives to be subject to another confidentiality agreement or other obligation of confidentiality (contractual,\nfiduciary, or otherwise);\n(iii) becomes available to Receiving Party or any of its Representatives on a non-confidential basis from a source\nother than the Company or any of its Representatives, provided, that Receiving Party and its Representatives do not have knowledge, and could\nnot reasonably have known, that such information is subject to another confidentiality agreement or other obligation of confidentiality\n(contractual, fiduciary, or otherwise); or\n@iv) is independently developed by Receiving Party or its Representatives without the use of, reference to or\nreliance upon any information furnished to Receiving Party or any of its Representatives by or on behalf of the Company or any of its\nRepresentatives and without any violation of this Agreement or any other obligation of confidentiality (contractual, fiduciary, or otherwise)\nknown by, or that reasonably should have been known by, Receiving Party or any of its Representatives.\n \n(b) “Representatives” means, with respect to a party, such party and the directors, officers, employees, affiliates,\nmembers, agents, or advisors (including attorneys, accountants, financial advisers, consultants and investment bankers) of such party and, in the\ncase of Receiving Party, any debt financing source that at the date hereof is listed on Exhibit A or after the date hereof is specifically approved in\nwriting in advance by the Company for Receiving Party in connection with the Potential Transaction; provided that, for the purposes of this\nAgreement, no such person shall be deemed a “Representative” of Receiving Party, nor shall Receiving Party have any liability for such person,\nunless such person has been furnished with Evaluation Material or Transaction Information or is acting at the direction of Receiving Party or any\naffiliate or Representative of Receiving Party.\n(0 The term “person” means any corporation, company, partnership, joint venture, group, limited liability company, or\nother entity or individual; the term “affiliate” has the meaning set forth in Rule 12b-2 under the Securities Exchange Act of 1934, as amended\n(such Act, as amended, being referred to herein as the “Exchange Act”), provided, that the Company, and persons controlled by the Company,\nshall be deemed not to be an affiliate of Receiving Party; and the term “including” and correlative terms shall be deemed to be followed by\n“without limitation”.\n2. Use and Disclosure of Evaluation Material.\n(a) Receiving Party agrees that it shall, and that it shall use commercially reasonable efforts to cause its Representatives\nto:\n@) use the Evaluation Material solely for the purpose of evaluating and negotiating the Potential Transaction;\nand\n(ii) except as provided in Section 3 hereof, keep the Evaluation Material confidential and not disclose any\nEvaluation Material, directly or indirectly, to any other person;\nprovided, that the foregoing provisions of this sub-section (a) shall not prohibit the two (2) officers of Receiving Party who as of the date hereof\nare directors of the Company from using Evaluation Material received by them in their capacities as directors of the Company as and to the\nextent required by their fiduciary duties as directors of the Company under applicable law.\nNotwithstanding the foregoing provisions of this sub-section (a), Receiving Party may disclose Evaluation Material to Receiving Party’s\nRepresentatives who need to know such information for the sole purpose of evaluating and negotiating the Potential Transaction, provided, that\nReceiving Party’s Representatives prior to any such disclosure are informed of the confidential nature of such Evaluation Material and are\ndirected (i) to use such information solely for the purpose of evaluating and negotiating the Potential Transaction and (ii) to maintain the\nconfidentiality of such Evaluation Material.\n(b) Except as provided in Section 3 hereof, the Company and Receiving Party agree that neither the Company, Receiving\nParty nor any of their respective Representatives shall disclose to any person (other than their respective Representatives to the extent permitted\nhereby) (i) the existence of this Agreement, (ii) the fact that Evaluation Material has been or may be requested, received or made available to it,\n(iii) that investigations, discussions or negotiations are taking (or have taken) place concerning, or that the Company and Receiving Party are\nconsidering, a possible transaction, (iv) any of the terms, conditions or other facts with respect thereto, or (v) the status of such discussions\n(collectively, the “Transaction Information”); provided, that notwithstanding the foregoing, the Company will not be restricted in disclosing any\nTransaction Information to the Company’s stockholders, debtholders or other stakeholders, or have any restrictions under this Agreement with\nrespect to any Transaction Information\n \nthat is or becomes generally available to the public other than as a result of an act or omission directly or indirectly by the Company or any of its\nRepresentatives in violation of this Section 2(b).\n(0 Receiving Party shall be directly responsible and liable to the Company for any use or disclosure by any of Receiving\nParty’s Representatives of any Evaluation Material or Transaction Information which, if done by Receiving Party itself, would be a breach of this\nAgreement, it being understood that such responsibility and liability shall be in addition to and not by way of limitation of any right or remedy\nthe Company may have against Receiving Party’s Representatives with respect to such breach. Receiving Party agrees, at its sole expense, to take\ncommercially reasonable measures to restrain its Representatives from making or allowing to be made prohibited or unauthorized uses or\ndisclosures of Evaluation Material and Transaction Information under this Agreement.\n(d) To the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties\nunderstand and agree that they have a commonality of interest with respect to such matters and it is their mutual desire, intention and\nunderstanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material\nor its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is\nentitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to\nsuch protection under these privileges or doctrines, under this Agreement and under the joint defense doctrine.\n(e) All Evaluation Material shall remain the property of the Company and/or its applicable subsidiary. No license or,\nexcept as provided in Section 2(a) hereof, right to use or other similar rights with respect to the Evaluation Material are granted to Receiving\nParty or any of its Representatives, by implication or otherwise.\n® Receiving Party represents and warrants that neither it nor any of its Representatives has entered into, and agrees that\nwithout the Company’s prior written consent none of Receiving Party and its Representatives will enter into, any discussions or any agreement,\nunderstanding or arrangement (whether or not binding), directly or indirectly, with, and will not otherwise directly or indirectly approach, (i) any\nperson with respect to or relating to participation by such person or others (whether as club participant, principal, co-investor, co-bidder,\nfinancing source or otherwise) in any transaction with or relating to the Company (whether before or after the closing of any transaction) or any\nof its subsidiaries or (ii) any stockholder, director (other than (x) the two (2) directors of the Company who as of the date hereof are also officers\nof Receiving Party and (y) the members of the Special Committee of the Board of Directors of the Company in their capacities as such), officer\nor other employee of the Company or any of its subsidiaries with respect to or relating to a transaction with the Company or any of its businesses\nor operations from and after any such transaction, including as to any equity “rollover” or any employment with or consulting services to the\nCompany or any affiliate thereof.\n3. Legally Required Disclosure.\nIf the Company, Receiving Party or any of their respective Representatives is requested or required (by oral questions, interrogatories,\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any\nEvaluation Material or Transaction Information, such party shall, to the extent permitted by law, promptly provide the other party with written\nnotice of any such request or requirement (and the terms and conditions thereof). If the other party seeks a protective order or other remedy, the\nparty subject to such request or requirement (the “recipient”) shall, at the other party’s expense, provide such cooperation as the other party shall\n3\n \nreasonably request. If, in the absence of a protective order or other remedy or the receipt by the recipient of a waiver from the other party, the\nrecipient or any of its Representatives is nonetheless required to disclose Evaluation Material or Transaction Information to any tribunal or other\nentity, then the recipient or such Representative may, without liability hereunder, disclose to such tribunal or other entity that portion (but only\nthat portion) of the Evaluation Material or Transaction Information that is legally required to be disclosed, provided, that recipient and such\nRepresentative shall exercise commercially reasonable efforts to minimize the disclosure of Evaluation Material or Transaction Information and\nto preserve the confidentiality thereof, including by seeking, at the other party’s expense, to obtain a protective order or other assurance that\nconfidential treatment will be accorded to such Evaluation Material or Transaction Information. Notwithstanding the foregoing, (a) the recipient\nand its Representatives shall not be required to notify the other party where disclosure is in connection with a routine audit or examination by a\nregulatory authority, bank examiner or auditor that does not explicitly reference the other party, the Transaction or this Agreement and (b) the\nrecipient and its applicable affiliates shall not be required to notify the other party, and shall be permitted to publicly disclose this Agreement, the\nexclusivity agreement entered into between the Company and the Receiving Party dated as of the date hereof (and any amendment or termination\nhereof or thereof), any Confidential Information or Transaction Information to the extent required in order to comply with the rules and\nregulations of the U.S. Securities and Exchange Commission or the federal securities laws.\n \n4, Return of Evaluation Material.\nAt any time upon the written request of the Company (in its sole discretion and for any or no reason), Receiving Party shall promptly\n(and in any event within ten (10) business days after such request) return to the Company (or, at Receiving Party’s option, destroy) all Evaluation\nMaterial (and all copies thereof) furnished to Receiving Party or its Representatives by or on behalf of the Company or its Representatives, or\nprepared by Receiving Party or any of its Representatives, and shall not retain any copies, extracts or other reproductions (including Evaluation\nMaterial stored in any computer or other electronic storage device) in whole or in part of such material. Any such destruction shall be certified in\nwriting to the Company by an authorized officer of Receiving Party upon the request of the Company.\nNotwithstanding the return or destruction of Evaluation Material, Receiving Party and its affiliates and Representatives shall continue to\nbe bound by their obligations hereunder.\nNotwithstanding the foregoing, it is understood that information in an intangible or electronic format containing Evaluation Material\nthat cannot through commercially reasonable means be removed, erased or otherwise deleted from archival systems may be so retained, and that\nReceiving Party and its Representatives may retain Evaluation Material solely to the extent required under any applicable law, statute, rule,\nregulation or established internal compliance or document retention policy; provided that Receiving Party and such Representatives shall\ncontinue to be bound by their confidentiality and other obligations hereunder with respect to all such Evaluation Material.\n5. Term.\nNotwithstanding anything to the contrary stated herein, the obligations set forth in this Agreement shall continue until the earlier of\n(i) the second (2nd) anniversary of the date hereof and (ii) consummation of the Potential Transaction.\n6. Nonsolicitation.\nReceiving Party agrees that, for a period of twelve (12) months from the date hereof, neither it nor any of its affiliates, nor any other\nperson acting at its or its affiliates’ direction or on its or its affiliates’ behalf, shall, directly or indirectly, solicit to employ or entice away or offer\nto enter into any\n \nagreement with any person who is an officer, employee at or above corporate vice president, or manager of the Company or any of its\nsubsidiaries; provided, that this section shall not prevent Receiving Party or its affiliates from soliciting or hiring a person identified above (a\n“Covered Person”) (i) if such Covered Person responds to a general solicitation of employment not specifically directed toward the Company or\nany of its subsidiaries or particular employees of the Company or any of its subsidiaries (including general solicitations made through executive\nrecruitment or placement agencies not directed to employees of the Company or any of its subsidiaries), (ii) if such Covered Person approaches\nReceiving Party or any of its affiliates on an unsolicited basis or (iii) following cessation of such Covered Person’s employment with the\nCompany or any of its subsidiaries without any solicitation or encouragement by Receiving Party or any of its Affiliates.\n7. [Reserved]\n8. Gaming Regulations.\nReceiving Party acknowledges that the Company and its subsidiaries conduct a business that is subject to, and exists because of,\nprivileged licenses issued by various governmental authorities. Receiving Party acknowledges that the Company is subject to the provisions of\nthe following acts and any rules, regulations or orders promulgated thereunder: (i) the Nevada Gaming Control Act, (ii) Colorado Limited\nGaming Act and Colorado Code of Regulations, (iii) the applicable gaming laws and regulations of Missouri, (iv) the applicable gaming laws and\nregulations of Iowa or (v) any other act, law, statute, ordinance, rule, regulation or tribal compact governing any casino operation of the\nCompany and its subsidiaries (collectively, the “Acts”), which prohibits a gaming licensee from entering into any contract or agreement with\n(a) a person who is found unsuitable, who is denied a license, or whose license was revoked by the gaming authorities of (1) Nevada,\n(2) Colorado, (3) Missouri, (4) Iowa or (5) any other gaming regulatory board, agency or commission having regulatory authority over the\nCompany and its subsidiaries (each a “Commission”), or (b) any business enterprise under control of such person without the prior approval of\nthe appropriate Commission.\nReceiving Party will use its reasonable efforts to comply with and to cause each of its affiliates and other Representatives to comply\nwith the requirements of all Acts to the extent the Acts apply to Receiving Party.\n9. Trading in Securities.\nReceiving Party acknowledges that it is aware (and that its Representatives who receive any Evaluation Material or Transaction\nInformation will be so advised) that applicable securities laws generally prohibit any person who is aware of material, non-public information\nabout a company obtained directly or indirectly from that company from purchasing or selling securities of such company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell such securities.\n10. No Representations and Warranties; Relationship to Definitive Agreement.\n(a) Receiving Party understands and agrees that neither the Company nor any of its respective affiliates or\nRepresentatives, nor any other person on any of their behalves, has made or is making, and that each of the foregoing hereby disclaims, any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of any of the Evaluation Material, and Receiving Party\nrepresents that neither it nor any of its affiliates or Representatives has relied, is relying, is entitled to rely on or will rely upon any such\nrepresentation or warranty, in each case except as may be set forth in any definitive agreement with respect to a Transaction. Receiving Party\nagrees that neither the Company nor\n \nany of its respective affiliates or Representatives, nor any other person on any of their behalves, shall have any liability to Receiving Party or any\nof its affiliates or Representatives or any other person relating to or resulting from any use of the Evaluation Material or any errors therein or\nomissions therefrom, in each case except as may be set forth in any definitive agreement with respect to a Transaction. Without limiting the\ngenerality of the preceding two sentences, the Evaluation Material may include statements, estimates and projections provided by the Company\nor its affiliates or Representatives with respect to the anticipated future performance of the Company. Such statements, estimates and projections\nreflect various assumptions made by the Company concerning anticipated results, which assumptions may or may not prove to be correct. No\nrepresentations are made as to the accuracy of such assumptions, statements, estimates or projections. Only those representations or warranties\nwhich are made in a definitive agreement, when, as and if executed, and subject to such limitations and restrictions as may be specified therein,\nwill have any legal effect. For purposes of this Agreement, the term “definitive agreement” does not include any executed letter of intent or any\nother preliminary written agreement, nor does it include any written or verbal acceptance of any offer or bid made by one party.\n(b) No contract or agreement providing for any transaction involving the parties shall be deemed to exist unless and until\na definitive agreement has been executed and delivered. Unless and until a definitive agreement regarding a transaction has been executed and\ndelivered, neither party hereto will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this\nAgreement or any other written or oral communication with respect to such transaction, except for the matters specifically agreed to herein.\n(0 The Company reserves the right, in its sole discretion, to reject any and all proposals made by Receiving Party with\nregard to a transaction between the parties and to terminate discussions and negotiations with Receiving Party at any time and for any reason or\nno reason. Receiving Party agrees that the Company and its affiliates and Representatives shall be free to conduct any process for any transaction\nin such manner as they or any of them, in their or its sole discretion, shall determine (including negotiating with other parties and entering into a\npreliminary or definitive agreement without prior notice to Receiving Party or any other person), and that any procedures relating to such process\nor transaction may be changed at any time without notice to Receiving Party or any other person.\n11. Contacts and Communications.\nReceiving Party agrees that all contacts and communications by it or its Representatives with the Company or its Representatives\nregarding the Potential Transaction or the Evaluation Material, all requests for additional information, facility tours or management meetings,\nand all discussions or questions regarding procedures with respect to the Potential Transaction, will be submitted or directed only to those\nindividuals as the Company shall instruct in writing. Without the express prior consent of the Company, Receiving Party agrees that it will not,\ndirectly or indirectly, contact or communicate with any officer, employee, director (other than (x) the two (2) directors of the Company currently\nemployed by Receiving Party and (y) the members of the Special Committee of the Board of Directors of the Company in their capacities as\nsuch), stockholder (other than Receiving Party’s affiliates), agent, affiliate (other than Receiving Party’s affiliates), customer or business partner\nof the Company regarding Evaluation Material or a Potential Transaction between the parties.\n12. Miscellaneous.\n(a) Receiving Party represents and warrants to the Company that it is acting as a principal in the Potential Transaction and\nnot as part of a group with any third parties (other than affiliates of Receiving Party).\n6\n \n(b) This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without\ngiving effect to the conflicts of law principles thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of any\nState or Federal court sitting in Clark County in the State of Nevada over any suit, action or proceeding arising out of or relating to this\nAgreement. Each party hereby agrees that service of any process, summons, notice or document by U.S. registered mail addressed to such party\nshall be effective service of process for any action, suit or proceeding brought against such party in any such court. Each party hereby irrevocably\nand unconditionally waives any objection to the laying of venue of any such suit, action or proceeding brought in any such court and any claim\nthat any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Each party agrees that a final\njudgment in any suit, action or proceeding brought in any such court shall be conclusive and binding upon such party and may be enforced in any\nother courts to whose jurisdiction such party is or may be subject, by suit upon judgment.\n(0 Receiving Party recognizes and acknowledges the competitive value and confidential nature of the Evaluation\nMaterial and that irreparable damage may result to the Company if information contained therein or derived therefrom is disclosed to any person\nexcept as herein provided or is used for any purpose other than the evaluation and negotiation of the Potential Transaction. Receiving Party\nfurther acknowledges and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by Receiving Party or\nany of Receiving Party’s Representatives, and that the Company may seek equitable relief, including injunctive relief and specific performance,\nas a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by Receiving\nParty or any of Receiving Party’s Representatives, but shall be in addition to all of the Company’s other remedies available at law or in equity. In\nthe event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, nonappealable order that a party has\nbreached this Agreement, then such party shall be liable for and pay to the other party the reasonable legal fees and disbursements that the other\nparty has incurred in connection with such litigation, including any appeal therefrom.\n(d) This Agreement may not be assigned in whole or in part by either party without the prior written consent of the other\nparty, and any purported assignment without such consent shall be null and void, provided, that the Company may, without the prior written\nconsent of Receiving Party, assign all or any of its rights hereunder to any person who has acquired all or substantially all of the Company’s\noutstanding equity securities or assets. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and\ntheir respective successors and assigns.\n(e) This Agreement contains the entire agreement between the parties concerning the subject matter hereof. No provision\nof this Agreement may be waived or amended except by the express written consent of the parties. No failure or delay by the parties in exercising\nany right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or\nfuture exercise thereof or the exercise of any other right, power or privilege hereunder.\n® All notices and other communications hereunder shall be in writing. Any notice or other communication hereunder\nshall be deemed duly delivered one (1) business day after it is sent for next-business-day delivery via a reputable nationwide overnight courier\nservice, in each case to the intended recipient as set forth below, or the same day of delivery if sent by both facsimile and email with\nconfirmation of receipt:\n \nIf to the Company:\nAffinity Gaming\n3755 Breakthrough Way, Suite 300\nLas Vegas, Nevada 89135\nAttention: Marc Rubinstein, Esq.\nFacsimile: (702) 341-2581\nE-mail: mrubinstein@affinitygaming.com\nWith a copy to:\nMorrison & Foerster LLP\n425 Market Street\nSan Francisco, CA 94105\nAttention: Brandon C. Parris, Esq.\nFacsimile: (415) 276-6352\nE-mail: bparris@mofo.com\nIf to Receiving Party:\nZ Capital Partners L.L.C.\n1330 Avenue of the Americas\nSuite 1100\nNew York, NY 10019\nAttention: Martin Auerbach, Esq.\nFacsimile: (646) 304-0175\nE-mail: mauerbach@zcap.net\nWith a copy to:\nSidley Austin LLP\n1999 Avenue of the Stars, 17t Floor\nLos Angeles, CA 90067\nAttention: Vijay S. Sekhon, Esq.\nFacsimile: (310) 595-9501\nE-mail: vsekhon@sidley.com\nEither party may give any notice or other communication hereunder using any other means (including personal delivery, expedited\ncourier, messenger service, telecopy, telex, ordinary mail or electronic mail), but no such notice or other communication shall be deemed duly\ngiven unless and until the party for whom it is intended actually receives it. Any party may change the address to which notices and other\ncommunications hereunder are to be delivered by giving the other party notice in the manner herein set forth.\n(8 For the convenience of the parties, this Agreement may be executed by facsimile or e-mail and in counterparts, each\nof which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.\n(h) The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way\nthe meaning or interpretation of this Agreement.\n \n@) If any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or\nin part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent\npermitted by applicable law and such invalid or unenforceable provision or portion shall be replaced by a provision or term that is valid and\nenforceable and that comes closest to expressing the parties’ intention with respect to such invalid or unenforceable provision or portion.\n[Remainder of page intentionally left blank]\n9\n \nExecuted as of the date first above written.\nAFFINITY GAMING\nBy: /s/ Marc H. Rubinstein\nTitle:  Sr. VP, GC & Secretary\nZ CAPITAL PARTNERS L.L.C.\n/s/ James J. Zenni, Jr.\nBy: James J. Zenni, Jr.\nTitle: President and Chief Executive Officer\n[Signature page to Confidentiality Agreement]\n10\n	EX-99.(D)(9) 3 16-19711_1ex99dd9.htm EX-99.(D)(9)\nExhibit (d)(9)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this "Agreement") is dated and effective as of November 28, 2015, between Affinity Gaming, a\nNevada corporation (the "Company."), and Z Capital Partners L.L.C., a Delaware limited liability company ("ReceivingI Party.").\nWhereas, Receiving Party has requested the Company to provide certain information in connection with Receiving Party's consideration\nof a potential transaction (the "Potential Transaction") involving the Company and Receiving Party, and the Company desires to protect the\nconfidentiality of the information that it provides and to have Receiving Party take or abstain from taking certain actions in accordance with the\nprovisions of this Agreement.\nNow, therefore, in consideration of the mutual covenants and promises contained in this Agreement and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\n1.\nDefinitions.\n(a)\n"Evaluation Material" means any information (whether prepared by the Company or its Representatives (as defined\nherein) or any other person, and regardless of the form of communication, including whether written, oral or otherwise) that is furnished or made\navailable to Receiving Party or any of its Representatives by or on behalf of the Company or any of its Representatives, on or after the date\nhereof, and all notes, analyses, compilations, studies, interpretations, memoranda, reports, projections, forecasts or other documents or materials\n(regardless of the form thereof) prepared by Receiving Party or any of its Representatives which contain or otherwise reproduce or reflect, in\nwhole or in part, any such information; provided, that "Evaluation Material" does not include information which:\n(i)\nis or becomes generally available to the public other than as a result of an act or omission directly or\nindirectly by Receiving Party or any of its Representatives in violation of this Agreement or any other obligation of confidentiality (contractual,\nfiduciary, or otherwise) known by, or that reasonably should have been known by, Receiving Party or any of its Representatives;\n(ii)\nis already in Receiving Party's or any of its Representatives' possession and was not furnished by or on\nbehalf of the Company or its Representatives, provided, that such information is not known by, or reasonably should have been known by,\nReceiving Party or any of its Representatives to be subject to another confidentiality agreement or other obligation of confidentiality (contractual,\nfiduciary, or otherwise);\n(iii) becomes available to Receiving Party or any of its Representatives on a non-confidential basis from a source\nother than the Company or any of its Representatives, provided, that Receiving Party and its Representatives do not have knowledge, and could\nnot reasonably have known, that such information is subject to another confidentiality agreement or other obligation of confidentiality\n(contractual, fiduciary, or otherwise); or\n(iv) is independently developed by Receiving Party or its Representatives without the use of, reference to or\nreliance upon any information furnished to Receiving Party or any of its Representatives by or on behalf of the Company or any of its\nRepresentatives and without any violation of this Agreement or any other obligation of confidentiality (contractual, fiduciary, or otherwise)\nknown by, or that reasonably should have been known by, Receiving Party or any of its Representatives.\n1\n(b) "Representatives" means, with respect to a party, such party and the directors, officers, employees, affiliates,\nmembers, agents, or advisors (including attorneys, accountants, financial advisers, consultants and investment bankers) of such party and, in the\ncase of Receiving Party, any debt financing source that at the date hereof is listed on Exhibit A or after the date hereof is specifically approved in\nwriting in advance by the Company for Receiving Party in connection with the Potential Transaction; provided that, for the purposes of this\nAgreement, no such person shall be deemed a "Representative" of Receiving Party, nor shall Receiving Party have any liability for such person,\nunless such person has been furnished with Evaluation Material or Transaction Information or is acting at the direction of Receiving Party or any\naffiliate or Representative of Receiving Party.\n(c)\nThe term "person" means any corporation, company, partnership, joint venture, group, limited liability company,\nor\nother entity or individual; the term "affiliate" has the meaning set forth in Rule 12b-2 under the Securities Exchange Act of 1934, as amended\n(such Act, as amended, being referred to herein as the "Exchange Act"), provided, that the Company, and persons controlled by the Company,\nshall be deemed not to be an affiliate of Receiving Party; and the term "including" and correlative terms shall be deemed to be followed by\n"without limitation".\n2.\nUse and Disclosure of Evaluation Material.\n(a)\nReceiving Party agrees that it shall, and that it shall use commercially reasonable efforts to cause its Representatives\nto:\n(i)\nuse\nthe\nEvaluation Material solely for the purpose of evaluating and negotiating the Potential Transaction;\nand\n(ii)\nexcept as provided in Section 3 hereof, keep the Evaluation Material confidential and not disclose any\nEvaluation Material, directly or indirectly, to any other person;\nprovided, that the foregoing provisions of this sub-section (a) shall not prohibit the two (2) officers of Receiving Party who as of the date hereof\nare directors of the Company from using Evaluation Material received by them in their capacities as directors of the Company as and to the\nextent required by their fiduciary duties as directors of the Company under applicable law.\nNotwithstanding the foregoing provisions of this sub-section (a), Receiving Party may disclose Evaluation Material to Receiving Party's\nRepresentatives who need to know such information for the sole purpose of evaluating and negotiating the Potential Transaction, provided, that\nReceiving Party's Representatives prior to any such disclosure are informed of the confidential nature of such Evaluation Material and are\ndirected (i) to use such information solely for the purpose of evaluating and negotiating the Potential Transaction and (ii) to maintain the\nconfidentiality of such Evaluation Material.\n(b)\nExcept as provided in Section 3 hereof, the Company and Receiving Party agree that neither the Company, Receiving\nParty nor any of their respective Representatives shall disclose to any person (other than their respective Representatives to the extent permitted\nhereby) (i) the existence of this Agreement, (ii) the fact that Evaluation Material has been or may be requested, received or made available to\nit,\n(iii)\nthat\ninvestigations,\ndiscussions\nor\nnegotiations\nare\ntaking\n(or\nhave\ntaken)\nplace\nconcerning,\nor\nthat\nthe\nCompany\nand\nReceiving\nParty\nare\nconsidering, a possible transaction, (iv) any of the terms, conditions or other facts with respect thereto, or (v) the status of such discussions\n(collectively, the "Transaction Information"); provided, that notwithstanding the foregoing, the Company will not be restricted in disclosing\nany\nTransaction Information to the Company's stockholders, debtholders or other stakeholders, or have any restrictions under this Agreement with\nrespect to any Transaction Information\n2\nthat is or becomes generally available to the public other than as a result of an act or omission directly or indirectly by the Company or any of its\nRepresentatives in violation of this Section 2(b).\n(c)\nReceiving Party shall be directly responsible and liable to the Company for any use or disclosure by any of Receiving\nParty's Representatives of any Evaluation Material or Transaction Information which, if done by Receiving Party itself, would be a breach of this\nAgreement, it being understood that such responsibility and liability shall be in addition to and not by way of limitation of any right or remedy\nthe Company may have against Receiving Party's Representatives with respect to such breach. Receiving Party agrees, at its sole expense, to take\ncommercially reasonable measures to restrain its Representatives from making or allowing to be made prohibited or unauthorized uses or\ndisclosures of Evaluation Material and Transaction Information under this Agreement.\n(d) To the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties\nunderstand and agree that they have a commonality of interest with respect to such matters and it is their mutual desire, intention and\nunderstanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material\nor its continued protection under the attorney-clien privilege, work product doctrine or other applicable privilege. All Evaluation Material that is\nentitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to\nsuch protection under these privileges or doctrines, under this Agreement and under the joint defense doctrine.\n(e)\nAll Evaluation Material shall remain the property of the Company and/or its applicable subsidiary. No license or,\nexcept as provided in Section 2(a) hereof, right to use or other similar rights with respect to the Evaluation Material are granted to Receiving\nParty or any of its Representatives, by implication or otherwise.\n(f)\nReceiving Party represents and warrants that neither it nor any of its Representatives has entered into, and agrees\nthat\nwithout the Company's prior written consent none of Receiving Party and its Representatives will enter into, any discussions or any agreement,\nunderstanding or arrangement (whether or not binding), directly or indirectly, with, and will not otherwise directly or indirectly approach, (i) any\nperson with respect to or relating to participation by such person or others (whether as club participant, principal, co-investor, co-bidder,\nfinancing source or otherwise) in any transaction with or relating to the Company (whether before or after the closing of any transaction) or any\nof\nits\nsubsidiaries\nor\n(ii)\nany\nstockholder,\ndirector\n(other\nthan\n(x)\nthe\ntwo\n(2)\ndirectors\nof\nthe\nCompany\nwho\nas\nof\nthe\ndate\nhereof\nare\nalso\nofficers\nof Receiving Party and (y) the members of the Special Committee of the Board of Directors of the Company in their capacities as such), officer\nor other employee of the Company or any of its subsidiaries with respect to or relating to a transaction with the Company or any of its businesses\nor operations from and after any such transaction, including as to any equity "rollover" or any employment with or consulting services to the\nCompany or any affiliate thereof.\n3.\nLegally Required Disclosure.\nIf the Company, Receiving Party or any of their respective Representatives is requested or required (by oral questions, interrogatories,\nrequests\nfor\ninformation\nor\ndocuments\nin\nlegal\nproceedings,\nsubpoena,\ncivil\ninvestigative\ndemand\nor\nother\nsimilar\nprocess)\nto\ndisclose\nany\nEvaluation Material or Transaction Information, such party shall, to the extent permitted by law, promptly provide the other party with written\nnotice of any such request or requirement (and the terms and conditions thereof). If the other party seeks a protective order or other remedy,\nthe\nparty subject to such request or requirement (the "recipient") shall, at the other party's expense, provide such cooperation as the other party shall\n3\nreasonably request. If, in the absence of a protective order or other remedy or the receipt by the recipient of a waiver from the other party, the\nrecipient or any of its Representatives is nonetheless required to disclose Evaluation Material or Transaction Information to any tribunal or other\nentity, then the recipient or such Representative may, without liability hereunder, disclose to such tribunal or other entity that portion (but only\nthat portion) of the Evaluation Material or Transaction Information that is legally required to be disclosed, provided, that recipient and such\nRepresentative shall exercise commercially reasonable efforts to minimize the disclosure of Evaluation Material or Transaction Information and\nto preserve the confidentiality thereof, including by seeking, at the other party's expense, to obtain a protective order or other assurance that\nconfidential treatment will be accorded to such Evaluation Material or Transaction Information. Notwithstanding the foregoing, (a) the recipient\nand its Representatives shall not be required to notify the other party where disclosure is in connection with a routine audit or examination by\na\nregulatory authority, bank examiner or auditor that does not explicitly reference the other party, the Transaction or this Agreement and (b) the\nrecipient and its applicable affiliates shall not be required to notify the other party, and shall be permitted to publicly disclose this Agreement,\nthe\nexclusivity agreement entered into between the Company and the Receiving Party dated as of the date hereof (and any amendment or termination\nhereof or thereof), any Confidential Information or Transaction Information to the extent required in order to comply with the rules and\nregulations of the U.S. Securities and Exchange Commission or the federal securities laws.\n4.\nReturn of Evaluation Material.\nAt any time upon the written request of the Company (in its sole discretion and for any or no reason), Receiving Party shall promptly\n(and in any event within ten (10) business days after such request) return to the Company (or, at Receiving Party's option, destroy) all Evaluation\nMaterial (and all copies thereof) furnished to Receiving Party or its Representatives by or on behalf of the Company or its Representatives, or\nprepared by Receiving Party or any of its Representatives, and shall not retain any copies, extracts or other reproductions (including Evaluation\nMaterial stored in any computer or other electronic storage device) in whole or in part of such material. Any such destruction shall be certified in\nwriting to the Company by an authorized officer of Receiving Party upon the request of the Company.\nNotwithstanding the return or destruction of Evaluation Material, Receiving Party and its affiliates and Representatives shall continue to\nbe bound by their obligations hereunder.\nNotwithstanding the foregoing, it is understood that information in an intangible or electronic format containing Evaluation Material\nthat cannot through commercially reasonable means be removed, erased or otherwise deleted from archival systems may be so retained, and that\nReceiving Party and its Representatives may retain Evaluation Material solely to the extent required under any applicable law, statute, rule,\nregulation or established internal compliance or document retention policy; provided that Receiving Party and such Representatives shall\ncontinue to be bound by their confidentiality and other obligations hereunder with respect to all such Evaluation Material.\n5.\nTerm.\nNotwithstanding anything to the contrary stated herein, the obligations set forth in this Agreement shall continue until the earlier of\n(i) the second (2nd) anniversary of the date hereof and (ii) consummation of the Potential Transaction.\n6.\nNonsolicitation.\nReceiving Party agrees that, for a period of twelve (12) months from the date hereof, neither it nor any of its affiliates, nor any other\nperson acting at its or its affiliates' direction or on its or its affiliates' behalf, shall, directly or indirectly, solicit to employ or entice away or offer\nto enter into any\n4\nagreement with any person who is an officer, employee at or above corporate vice president, or manager of the Company or any of its\nsubsidiaries; provided, that this section shall not prevent Receiving Party or its affiliates from soliciting or hiring a person identified above\n(a\n"Covered Person") (i) if such Covered Person responds to a general solicitation of employment not specifically directed toward the Company\nor\nany of its subsidiaries or particular employees of the Company or any of its subsidiaries (including general solicitations made through executive\nrecruitment or placement agencies not directed to employees of the Company or any of its subsidiaries), (ii) if such Covered Person approaches\nReceiving Party or any of its affiliates on an unsolicited basis or (iii) following cessation of such Covered Person's employment with the\nCompany or any of its subsidiaries without any solicitation or encouragement by Receiving Party or any of its Affiliates.\n7.\n[Reserved]\n8.\nGaming Regulations\nReceiving Party acknowledges that the Company and its subsidiaries conduct a business that is subject to, and exists because of,\nprivileged licenses issued by various governmental authorities. Receiving Party acknowledges that the Company is subject to the provisions\nof\nthe following acts and any rules, regulations or orders promulgated thereunder: (i) the Nevada Gaming Control Act, (ii) Colorado Limited\nGaming Act and Colorado Code of Regulations, (iii) the applicable gaming laws and regulations of Missouri, (iv) the applicable gaming laws and\nregulations of Iowa or (v) any other act, law, statute, ordinance, rule, regulation or tribal compact governing any casino operation of the\nCompany and its subsidiaries (collectively, the "Acts"), which prohibits a gaming licensee from entering into any contract or agreement with\n(a) a person who is found unsuitable, who is denied a license, or whose license was revoked by the gaming authorities of (1) Nevada,\n(2) Colorado, (3) Missouri, (4) Iowa or (5) any other gaming regulatory board, agency or commission having regulatory authority over the\nCompany and its subsidiaries (each a "Commission"), or (b) any business enterprise under control of such person without the prior approval of\nthe appropriate Commission.\nReceiving Party will use its reasonable efforts to comply with and to cause each of its affiliates and other Representatives to comply\nwith the requirements of all Acts to the extent the Acts apply to Receiving Party.\n9.\nTrading in Securities.\nReceiving Party acknowledges that it is aware (and that its Representatives who receive any Evaluation Material or Transaction\nInformation will be so advised) that applicable securities laws generally prohibit any person who is aware of material, non-public information\nabout a company obtained directly or indirectly from that company from purchasing or selling securities of such company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell such securities.\n10.\nNo Representations and Warranties; Relationship to Definitive Agreement.\n(a)\nReceiving Party understands and agrees that neither the Company nor any of its respective affiliates or\nRepresentatives, nor any other person on any of their behalves, has made or is making, and that each of the foregoing hereby disclaims, any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of any of the Evaluation Material, and Receiving Party\nrepresents that neither it nor any of its affiliates or Representatives has relied, is relying, is entitled to rely on or will rely upon any such\nrepresentation or warranty, in each case except as may be set forth in any definitive agreement with respect to a Transaction. Receiving Party\nagrees that neither the Company nor\n5\nany of its respective affiliates or Representatives, nor any other person on any of their behalves, shall have any liability to Receiving Party or any\nof\nits\naffiliates or Representatives or any other person relating to or resulting from any use of the Evaluation Material or any errors therein or\nomissions therefrom, in each case except as may be set forth in any definitive agreement with respect to a Transaction Without limiting the\ngenerality of the preceding two sentences, the Evaluation Material may include statements, estimates and projections provided by the Company\nor\nits\naffiliates or Representatives with respect to the anticipated future performance of the Company. Such statements, estimates and projections\nreflect various assumptions made by the Company concerning anticipated results, which assumptions may or may not prove to be correct. No\nrepresentations are made as to the accuracy of such assumptions, statements, estimates or projections. Only those representations or warranties\nwhich\nare made in a definitive agreement, when, as and if executed, and subject to such limitations and restrictions as may be specified therein,\nwill have any legal effect. For purposes of this Agreement, the term "definitive agreement" does not include any executed letter of intent or any\nother preliminary written agreement, nor does it include any written or verbal acceptance of any offer or bid made by one party.\n(b)\nNo contract or agreement providing for any transaction involving the parties shall be deemed to exist unless and until\na definitive agreement has been executed and delivered. Unless and until a definitive agreement regarding a transaction has been executed and\ndelivered, neither party hereto will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this\nAgreement or any other written or oral communication with respect to such transaction, except for the matters specifically agreed to herein.\n(c)\nThe Company reserves the right, in its sole discretion, to reject any and all proposals made by Receiving Party with\nregard to a transaction between the parties and to terminate discussions and negotiations with Receiving Party at any time and for any reason or\nno reason. Receiving Party agrees that the Company and its affiliates and Representatives shall be free to conduct any process for any transaction\nin such manner as they or any of them, in their or its sole discretion, shall determine (including negotiating with other parties and entering into a\npreliminary or definitive agreement without prior notice to Receiving Party or any other person), and that any procedures relating to such process\nor transaction may be changed at any time without notice to Receiving Party or any other person.\n11.\nContacts and Communications.\nReceiving Party agrees that all contacts and communications by it or its Representatives with the Company or its Representatives\nregarding the Potential Transaction or the Evaluation Material, all requests for additional information, facility tours or management meetings,\nand all discussions or questions regarding procedures with respect to the Potential Transaction, will be submitted or directed only to those\nindividuals as the Company shall instruct in writing. Without the express prior consent of the Company, Receiving Party agrees that it will not,\ndirectly or indirectly, contact or communicate with any officer, employee, director (other than (x) the two (2) directors of the Company currently\nemployed by Receiving Party and (y) the members of the Special Committee of the Board of Directors of the Company in their capacities as\nsuch), stockholder (other than Receiving Party's affiliates), agent, affiliate (other than Receiving Party's affiliates), customer or business partner\nof the Company regarding Evaluation Material or a Potential Transaction between the parties.\n12.\nMiscellaneous.\n(a)\nReceiving Party represents and warrants to the Company that it is acting as a principal in the Potential Transaction and\nnot as part of a group with any third parties (other than affiliates of Receiving Party).\n6\n(b)\nThis Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without\ngiving effect to the conflicts of law principles thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of any\nState or Federal court sitting in Clark County in the State of Nevada over any suit, action or proceeding arising out of or relating to this\nAgreement. Each party hereby agrees that service of any process, summons, notice or document by U.S. registered mail addressed to such party\nshall be effective service of process for any action, suit or proceeding brought against such party in any such court. Each party hereby irrevocably\nand unconditionally waives any objection to the laying of venue of any such suit, action or proceeding brought in any such court and any claim\nthat any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Each party agrees that a final\njudgment in any suit, action or proceeding brought in any such court shall be conclusive and binding upon such party and may be enforced in any\nother courts to whose jurisdiction such party is or may be subject, by suit upon judgment.\n(c)\nReceiving Party recognizes and acknowledges the competitive value and confidentia nature of the Evaluation\nMaterial and that irreparable damage may result to the Company if information contained therein or derived therefrom is disclosed to any person\nexcept as herein provided or is used for any purpose other than the evaluation and negotiation of the Potential Transaction. Receiving Party\nfurther\nacknowledges and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by Receiving Party or\nany of Receiving Party's Representatives, and that the Company may seek equitable relief, including injunctive relief and specific performance,\nas a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by Receiving\nParty\nor\nany\nof\nReceiving\nParty's\nRepresentatives,\nbut\nshall\nbe\nin\naddition\nto\nall\nof\nthe\nCompany's\nother\nremedies\navailable\nat\nlaw\nor\nin\nequity.\nIn\nthe event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, nonappealable order that a party has\nbreached this Agreement, then such party shall be liable for and pay to the other party the reasonable legal fees and disbursements that the other\nparty has incurred in connection with such litigation, including any appeal therefrom.\n(d)\nThis Agreement may not be assigned in whole or in part by either party without the prior written consent of the other\nparty, and any purported assignment without such consent shall be null and void, provided, that the Company may, without the prior written\nconsent of Receiving Party, assign all or any of its rights hereunder to any person who has acquired all or substantially all of the Company's\noutstanding equity securities or assets. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and\ntheir respective successors and assigns.\n(e)\nThis Agreement contains the entire agreement between the parties concerning the subject matter hereof. No provision\nof this Agreement may be waived or amended except by the express written consent of the parties. No failure or delay by the parties in exercising\nany right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or\nfuture exercise thereof or the exercise of any other right, power or privilege hereunder.\n(f) All notices and other communications hereunder shall be in writing. Any notice or other communication hereunder\nshall be deemed duly delivered one (1) business day after it is sent for next-business-day delivery via a reputable nationwide overnight courier\nservice, in each case to the intended recipient as set forth below, or the same day of delivery if sent by both facsimile and email with\nconfirmation of receipt:\n7\nIf to the Company:\nAffinity Gaming\n3755 Breakthrough Way, Suite 300\nLas Vegas, Nevada 89135\nAttention: Marc Rubinstein, Esq.\nFacsimile: (702) 341-2581\nE-mail: :mrubinstein@affinitygaming.com\nWith a copy to:\nMorrison & Foerster LLP\n425 Market Street\nSan Francisco, CA 94105\nAttention: Brandon C. Parris, Esq.\nFacsimile: (415) 276-6352\nE-mail: bparris@mofo.com\nIf to Receiving Party:\nZ Capital Partners L.L.C.\n1330 Avenue of the Americas\nSuite 1100\nNew York, NY 10019\nAttention: Martin Auerbach, Esq.\nFacsimile: (646) 304-0175\nE-mail: mauerbach@zcap.net\nWith a copy to:\nSidley Austin LLP\n1999 Avenue of the Stars, 17th Floor\nLos Angeles, CA 90067\nAttention: Vijay S. Sekhon, Esq.\nFacsimile: (310) 595-9501\nE-mail: vsekhon@sidley.com\nEither party may give any notice or other communication hereunder using any other means (including personal delivery, expedited\ncourier, messenger service, telecopy, telex, ordinary mail or electronic mail), but no such notice or other communication shall be deemed duly\ngiven unless and until the party for whom it is intended actually receives it. Any party may change the address to which notices and other\ncommunications hereunder are to be delivered by giving the other party notice in the manner herein set forth.\n(g)\nFor the convenience of the parties, this Agreement may be executed by facsimile or e-mail and in counterparts, each\nof which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.\n(h)\nThe section headings contained in this Agreement are inserted for convenience only and shall not affect in any way\nthe meaning or interpretation of this Agreement.\n8\n(i)\nIf any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or\nin\npart, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent\npermitted by applicable law and such invalid or unenforceable provision or portion shall be replaced by a provision or term that is valid and\nenforceable and that comes closest to expressing the parties' intention with respect to such invalid or unenforceable provision or portion.\n[Remainder of page intentionally left blank]\n9\nExecuted as of the date first above written.\nAFFINITY GAMING\nBy:\n/s/ Marc H. Rubinstein\nTitle: Sr. VP, GC & Secretary\nZ CAPITAL PARTNERS L.L.C.\n/s/ James J. Zenni, Jr.\nBy:\nJames J. Zenni, Jr.\nTitle:\nPresident and Chief Executive Officer\n[Signature page to Confidentiality Agreement]\n10	EX-99.(D)(9) 3 a16-19711_1ex99dd9.htm EX-99.(D)(9)\nExhibit (d)(9)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated and effective as of November 28, 2015, between Affinity Gaming, a\nNevada corporation (the “Company”), and Z Capital Partners L.L.C ., a Delaware limited liability company (“Receiving Party”).\nWhereas, Receiving Party has requested the Company to provide certain information in connection with Receiving Party’s consideration\nof a potential transaction (the “Potential Transaction”) involving the Company and Receiving Party, and the Company desires to protect the\nconfidentiality of the information that it provides and to have Receiving Party take or abstain from taking certain actions in accordance with the\nprovisions of this Agreement.\nNow, therefore, in consideration of the mutual covenants and promises contained in this Agreement and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:\n1.\nDefinitions.\n(a)\n“Evaluation Material” means any information (whether prepared by the Company or its Representatives (as defined\nherein) or any other person, and regardless of the form of communication, including whether written, oral or otherwise) that is furnished or made\navailable to Receiving Party or any of its Representatives by or on behalf of the Company or any of its Representatives, on or after the date\nhereof, and all notes, analyses, compilations, studies, interpretations, memoranda, reports, projections, forecasts or other documents or materials\n(regardless of the form thereof) prepared by Receiving Party or any of its Representatives which contain or otherwise reproduce or reflect, in\nwhole or in part, any such information; provided, that “Evaluation Material” does not include information which:\n(i)\nis or becomes generally available to the public other than as a result of an act or omission directly or\nindirectly by Receiving Party or any of its Representatives in violation of this Agreement or any other obligation of confidentiality (contractual,\nfiduciary, or otherwise) known by, or that reasonably should have been known by, Receiving Party or any of its Representatives;\n(ii)\nis already in Receiving Party’s or any of its Representatives’ possession and was not furnished by or on\nbehalf of the Company or its Representatives, provided, that such information is not known by, or reasonably should have been known by,\nReceiving Party or any of its Representatives to be subject to another confidentiality agreement or other obligation of confidentiality (contractual,\nfiduciary, or otherwise);\n(iii) becomes available to Receiving Party or any of its Representatives on a non-confidential basis from a source\nother than the Company or any of its Representatives, provided, that Receiving Party and its Representatives do not have knowledge, and could\nnot reasonably have known, that such information is subject to another confidentiality agreement or other obligation of confidentiality\n(contractual, fiduciary, or otherwise); or\n(iv) is independently developed by Receiving Party or its Representatives without the use of, reference to or\nreliance upon any information furnished to Receiving Party or any of its Representatives by or on behalf of the Company or any of its\nRepresentatives and without any violation of this Agreement or any other obligation of confidentiality (contractual, fiduciary, or otherwise)\nknown by, or that reasonably should have been known by, Receiving Party or any of its Representatives.\n1\n(b)\n“Representatives” means, with respect to a party, such party and the directors, officers, employees, affiliates,\nmembers, agents, or advisors (including attorneys, accountants, financial advisers, consultants and investment bankers) of such party and, in the\ncase of Receiving Party, any debt financing source that at the date hereof is listed on Exhibit A or after the date hereof is specifically approved in\nwriting in advance by the Company for Receiving Party in connection with the Potential Transaction; provided that, for the purposes of this\nAgreement, no such person shall be deemed a “Representative” of Receiving Party, nor shall Receiving Party have any liability for such person,\nunless such person has been furnished with Evaluation Material or Transaction Information or is acting at the direction of Receiving Party or any\naffiliate or Representative of Receiving Party.\n(c)\nThe term “person” means any corporation, company, partnership, joint venture, group, limited liability company, or\nother entity or individual; the term “affiliate” has the meaning set forth in Rule 12b-2 under the Securities Exchange Act of 1934, as amended\n(such Act, as amended, being referred to herein as the “Exchange Act”), provided, that the Company, and persons controlled by the Company,\nshall be deemed not to be an affiliate of Receiving Party; and the term “including” and correlative terms shall be deemed to be followed by\n“without limitation”.\n2.\nUse and Disclosure of Evaluation Material.\n(a)\nReceiving Party agrees that it shall, and that it shall use commercially reasonable efforts to cause its Representatives\nto:\n(i)\nuse the Evaluation Material solely for the purpose of evaluating and negotiating the Potential Transaction;\nand\n(ii)\nexcept as provided in Section 3 hereof, keep the Evaluation Material confidential and not disclose any\nEvaluation Material, directly or indirectly, to any other person;\nprovided, that the foregoing provisions of this sub-section (a) shall not prohibit the two (2) officers of Receiving Party who as of the date hereof\nare directors of the Company from using Evaluation Material received by them in their capacities as directors of the Company as and to the\nextent required by their fiduciary duties as directors of the Company under applicable law.\nNotwithstanding the foregoing provisions of this sub-section (a), Receiving Party may disclose Evaluation Material to Receiving Party’s\nRepresentatives who need to know such information for the sole purpose of evaluating and negotiating the Potential Transaction, provided, that\nReceiving Party’s Representatives prior to any such disclosure are informed of the confidential nature of such Evaluation Material and are\ndirected (i) to use such information solely for the purpose of evaluating and negotiating the Potential Transaction and (ii) to maintain the\nconfidentiality of such Evaluation Material.\n(b)\nExcept as provided in Section 3 hereof, the Company and Receiving Party agree that neither the Company, Receiving\nParty nor any of their respective Representatives shall disclose to any person (other than their respective Representatives to the extent permitted\nhereby) (i) the existence of this Agreement, (ii) the fact that Evaluation Material has been or may be requested, received or made available to it,\n(iii) that investigations, discussions or negotiations are taking (or have taken) place concerning, or that the Company and Receiving Party are\nconsidering, a possible transaction, (iv) any of the terms, conditions or other facts with respect thereto, or (v) the status of such discussions\n(collectively, the “Transaction Information”); provided, that notwithstanding the foregoing, the Company will not be restricted in disclosing any\nTransaction Information to the Company’s stockholders, debtholders or other stakeholders, or have any restrictions under this Agreement with\nrespect to any Transaction Information\n2\nthat is or becomes generally available to the public other than as a result of an act or omission directly or indirectly by the Company or any of its\nRepresentatives in violation of this Section 2(b).\n(c)\nReceiving Party shall be directly responsible and liable to the Company for any use or disclosure by any of Receiving\nParty’s Representatives of any Evaluation Material or Transaction Information which, if done by Receiving Party itself, would be a breach of this\nAgreement, it being understood that such responsibility and liability shall be in addition to and not by way of limitation of any right or remedy\nthe Company may have against Receiving Party’s Representatives with respect to such breach. Receiving Party agrees, at its sole expense, to take\ncommercially reasonable measures to restrain its Representatives from making or allowing to be made prohibited or unauthorized uses or\ndisclosures of Evaluation Material and Transaction Information under this Agreement.\n(d)\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties\nunderstand and agree that they have a commonality of interest with respect to such matters and it is their mutual desire, intention and\nunderstanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material\nor its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is\nentitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to\nsuch protection under these privileges or doctrines, under this Agreement and under the joint defense doctrine.\n(e)\nAll Evaluation Material shall remain the property of the Company and/or its applicable subsidiary. No license or,\nexcept as provided in Section 2(a) hereof, right to use or other similar rights with respect to the Evaluation Material are granted to Receiving\nParty or any of its Representatives, by implication or otherwise.\n(f)\nReceiving Party represents and warrants that neither it nor any of its Representatives has entered into, and agrees that\nwithout the Company’s prior written consent none of Receiving Party and its Representatives will enter into, any discussions or any agreement,\nunderstanding or arrangement (whether or not binding), directly or indirectly, with, and will not otherwise directly or indirectly approach, (i) any\nperson with respect to or relating to participation by such person or others (whether as club participant, principal, co-investor, co-bidder,\nfinancing source or otherwise) in any transaction with or relating to the Company (whether before or after the closing of any transaction) or any\nof its subsidiaries or (ii) any stockholder, director (other than (x) the two (2) directors of the Company who as of the date hereof are also officers\nof Receiving Party and (y) the members of the Special Committee of the Board of Directors of the Company in their capacities as such), officer\nor other employee of the Company or any of its subsidiaries with respect to or relating to a transaction with the Company or any of its businesses\nor operations from and after any such transaction, including as to any equity “rollover” or any employment with or consulting services to the\nCompany or any affiliate thereof.\n3.\nLegally Required Disclosure.\nIf the Company, Receiving Party or any of their respective Representatives is requested or required (by oral questions, interrogatories,\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any\nEvaluation Material or Transaction Information, such party shall, to the extent permitted by law, promptly provide the other party with written\nnotice of any such request or requirement (and the terms and conditions thereof). If the other party seeks a protective order or other remedy, the\nparty subject to such request or requirement (the “recipient”) shall, at the other party’s expense, provide such cooperation as the other party shall\n3\nreasonably request. If, in the absence of a protective order or other remedy or the receipt by the recipient of a waiver from the other party, the\nrecipient or any of its Representatives is nonetheless required to disclose Evaluation Material or Transaction Information to any tribunal or other\nentity, then the recipient or such Representative may, without liability hereunder, disclose to such tribunal or other entity that portion (but only\nthat portion) of the Evaluation Material or Transaction Information that is legally required to be disclosed, provided, that recipient and such\nRepresentative shall exercise commercially reasonable efforts to minimize the disclosure of Evaluation Material or Transaction Information and\nto preserve the confidentiality thereof, including by seeking, at the other party’s expense, to obtain a protective order or other assurance that\nconfidential treatment will be accorded to such Evaluation Material or Transaction Information. Notwithstanding the foregoing, (a) the recipient\nand its Representatives shall not be required to notify the other party where disclosure is in connection with a routine audit or examination by a\nregulatory authority, bank examiner or auditor that does not explicitly reference the other party, the Transaction or this Agreement and (b) the\nrecipient and its applicable affiliates shall not be required to notify the other party, and shall be permitted to publicly disclose this Agreement, the\nexclusivity agreement entered into between the Company and the Receiving Party dated as of the date hereof (and any amendment or termination\nhereof or thereof), any Confidential Information or Transaction Information to the extent required in order to comply with the rules and\nregulations of the U.S. Securities and Exchange Commission or the federal securities laws.\n4.\nReturn of Evaluation Material.\nAt any time upon the written request of the Company (in its sole discretion and for any or no reason), Receiving Party shall promptly\n(and in any event within ten (10) business days after such request) return to the Company (or, at Receiving Party’s option, destroy) all Evaluation\nMaterial (and all copies thereof) furnished to Receiving Party or its Representatives by or on behalf of the Company or its Representatives, or\nprepared by Receiving Party or any of its Representatives, and shall not retain any copies, extracts or other reproductions (including Evaluation\nMaterial stored in any computer or other electronic storage device) in whole or in part of such material. Any such destruction shall be certified in\nwriting to the Company by an authorized officer of Receiving Party upon the request of the Company.\nNotwithstanding the return or destruction of Evaluation Material, Receiving Party and its affiliates and Representatives shall continue to\nbe bound by their obligations hereunder.\nNotwithstanding the foregoing, it is understood that information in an intangible or electronic format containing Evaluation Material\nthat cannot through commercially reasonable means be removed, erased or otherwise deleted from archival systems may be so retained, and that\nReceiving Party and its Representatives may retain Evaluation Material solely to the extent required under any applicable law, statute, rule,\nregulation or established internal compliance or document retention policy; provided that Receiving Party and such Representatives shall\ncontinue to be bound by their confidentiality and other obligations hereunder with respect to all such Evaluation Material.\n5.\nTerm.\nNotwithstanding anything to the contrary stated herein, the obligations set forth in this Agreement shall continue until the earlier of\n(i) the second (2nd) anniversary of the date hereof and (ii) consummation of the Potential Transaction.\n6.\nNonsolicitation.\nReceiving Party agrees that, for a period of twelve (12) months from the date hereof, neither it nor any of its affiliates, nor any other\nperson acting at its or its affiliates’ direction or on its or its affiliates’ behalf, shall, directly or indirectly, solicit to employ or entice away or offer\nto enter into any\n4\nagreement with any person who is an officer, employee at or above corporate vice president, or manager of the Company or any of its\nsubsidiaries; provided, that this section shall not prevent Receiving Party or its affiliates from soliciting or hiring a person identified above (a\n“Covered Person”) (i) if such Covered Person responds to a general solicitation of employment not specifically directed toward the Company or\nany of its subsidiaries or particular employees of the Company or any of its subsidiaries (including general solicitations made through executive\nrecruitment or placement agencies not directed to employees of the Company or any of its subsidiaries), (ii) if such Covered Person approaches\nReceiving Party or any of its affiliates on an unsolicited basis or (iii) following cessation of such Covered Person’s employment with the\nCompany or any of its subsidiaries without any solicitation or encouragement by Receiving Party or any of its Affiliates.\n7.\n[Reserved]\n8.\nGaming Regulations.\nReceiving Party acknowledges that the Company and its subsidiaries conduct a business that is subject to, and exists because of,\nprivileged licenses issued by various governmental authorities. Receiving Party acknowledges that the Company is subject to the provisions of\nthe following acts and any rules, regulations or orders promulgated thereunder: (i) the Nevada Gaming Control Act, (ii) Colorado Limited\nGaming Act and Colorado Code of Regulations, (iii) the applicable gaming laws and regulations of Missouri, (iv) the applicable gaming laws and\nregulations of Iowa or (v) any other act, law, statute, ordinance, rule, regulation or tribal compact governing any casino operation of the\nCompany and its subsidiaries (collectively, the “Acts”), which prohibits a gaming licensee from entering into any contract or agreement with\n(a) a person who is found unsuitable, who is denied a license, or whose license was revoked by the gaming authorities of (1) Nevada,\n(2) Colorado, (3) Missouri, (4) Iowa or (5) any other gaming regulatory board, agency or commission having regulatory authority over the\nCompany and its subsidiaries (each a “Commission”), or (b) any business enterprise under control of such person without the prior approval of\nthe appropriate Commission.\nReceiving Party will use its reasonable efforts to comply with and to cause each of its affiliates and other Representatives to comply\nwith the requirements of all Acts to the extent the Acts apply to Receiving Party.\n9.\nTrading in Securities.\nReceiving Party acknowledges that it is aware (and that its Representatives who receive any Evaluation Material or Transaction\nInformation will be so advised) that applicable securities laws generally prohibit any person who is aware of material, non-public information\nabout a company obtained directly or indirectly from that company from purchasing or selling securities of such company or from\ncommunicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell such securities.\n10.\nNo Representations and Warranties; Relationship to Definitive Agreement.\n(a)\nReceiving Party understands and agrees that neither the Company nor any of its respective affiliates or\nRepresentatives, nor any other person on any of their behalves, has made or is making, and that each of the foregoing hereby disclaims, any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of any of the Evaluation Material, and Receiving Party\nrepresents that neither it nor any of its affiliates or Representatives has relied, is relying, is entitled to rely on or will rely upon any such\nrepresentation or warranty, in each case except as may be set forth in any definitive agreement with respect to a Transaction. Receiving Party\nagrees that neither the Company nor\n5\nany of its respective affiliates or Representatives, nor any other person on any of their behalves, shall have any liability to Receiving Party or any\nof its affiliates or Representatives or any other person relating to or resulting from any use of the Evaluation Material or any errors therein or\nomissions therefrom, in each case except as may be set forth in any definitive agreement with respect to a Transaction. Without limiting the\ngenerality of the preceding two sentences, the Evaluation Material may include statements, estimates and projections provided by the Company\nor its affiliates or Representatives with respect to the anticipated future performance of the Company. Such statements, estimates and projections\nreflect various assumptions made by the Company concerning anticipated results, which assumptions may or may not prove to be correct. No\nrepresentations are made as to the accuracy of such assumptions, statements, estimates or projections. Only those representations or warranties\nwhich are made in a definitive agreement, when, as and if executed, and subject to such limitations and restrictions as may be specified therein,\nwill have any legal effect. For purposes of this Agreement, the term “definitive agreement” does not include any executed letter of intent or any\nother preliminary written agreement, nor does it include any written or verbal acceptance of any offer or bid made by one party.\n(b)\nNo contract or agreement providing for any transaction involving the parties shall be deemed to exist unless and until\na definitive agreement has been executed and delivered. Unless and until a definitive agreement regarding a transaction has been executed and\ndelivered, neither party hereto will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this\nAgreement or any other written or oral communication with respect to such transaction, except for the matters specifically agreed to herein.\n(c)\nThe Company reserves the right, in its sole discretion, to reject any and all proposals made by Receiving Party with\nregard to a transaction between the parties and to terminate discussions and negotiations with Receiving Party at any time and for any reason or\nno reason. Receiving Party agrees that the Company and its affiliates and Representatives shall be free to conduct any process for any transaction\nin such manner as they or any of them, in their or its sole discretion, shall determine (including negotiating with other parties and entering into a\npreliminary or definitive agreement without prior notice to Receiving Party or any other person), and that any procedures relating to such process\nor transaction may be changed at any time without notice to Receiving Party or any other person.\n11.\nContacts and Communications.\nReceiving Party agrees that all contacts and communications by it or its Representatives with the Company or its Representatives\nregarding the Potential Transaction or the Evaluation Material, all requests for additional information, facility tours or management meetings,\nand all discussions or questions regarding procedures with respect to the Potential Transaction, will be submitted or directed only to those\nindividuals as the Company shall instruct in writing. Without the express prior consent of the Company, Receiving Party agrees that it will not,\ndirectly or indirectly, contact or communicate with any officer, employee, director (other than (x) the two (2) directors of the Company currently\nemployed by Receiving Party and (y) the members of the Special Committee of the Board of Directors of the Company in their capacities as\nsuch), stockholder (other than Receiving Party’s affiliates), agent, affiliate (other than Receiving Party’s affiliates), customer or business partner\nof the Company regarding Evaluation Material or a Potential Transaction between the parties.\n12.\nMiscellaneous.\n(a)\nReceiving Party represents and warrants to the Company that it is acting as a principal in the Potential Transaction and\nnot as part of a group with any third parties (other than affiliates of Receiving Party).\n6\n(b)\nThis Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without\ngiving effect to the conflicts of law principles thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of any\nState or Federal court sitting in Clark County in the State of Nevada over any suit, action or proceeding arising out of or relating to this\nAgreement. Each party hereby agrees that service of any process, summons, notice or document by U.S. registered mail addressed to such party\nshall be effective service of process for any action, suit or proceeding brought against such party in any such court. Each party hereby irrevocably\nand unconditionally waives any objection to the laying of venue of any such suit, action or proceeding brought in any such court and any claim\nthat any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Each party agrees that a final\njudgment in any suit, action or proceeding brought in any such court shall be conclusive and binding upon such party and may be enforced in any\nother courts to whose jurisdiction such party is or may be subject, by suit upon judgment.\n(c)\nReceiving Party recognizes and acknowledges the competitive value and confidential nature of the Evaluation\nMaterial and that irreparable damage may result to the Company if information contained therein or derived therefrom is disclosed to any person\nexcept as herein provided or is used for any purpose other than the evaluation and negotiation of the Potential Transaction. Receiving Party\nfurther acknowledges and agrees that money damages may not be a sufficient remedy for any breach of this Agreement by Receiving Party or\nany of Receiving Party’s Representatives, and that the Company may seek equitable relief, including injunctive relief and specific performance,\nas a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by Receiving\nParty or any of Receiving Party’s Representatives, but shall be in addition to all of the Company’s other remedies available at law or in equity. In\nthe event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, nonappealable order that a party has\nbreached this Agreement, then such party shall be liable for and pay to the other party the reasonable legal fees and disbursements that the other\nparty has incurred in connection with such litigation, including any appeal therefrom.\n(d)\nThis Agreement may not be assigned in whole or in part by either party without the prior written consent of the other\nparty, and any purported assignment without such consent shall be null and void, provided, that the Company may, without the prior written\nconsent of Receiving Party, assign all or any of its rights hereunder to any person who has acquired all or substantially all of the Company’s\noutstanding equity securities or assets. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and\ntheir respective successors and assigns.\n(e)\nThis Agreement contains the entire agreement between the parties concerning the subject matter hereof. No provision\nof this Agreement may be waived or amended except by the express written consent of the parties. No failure or delay by the parties in exercising\nany right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or\nfuture exercise thereof or the exercise of any other right, power or privilege hereunder.\n(f)\nAll notices and other communications hereunder shall be in writing. Any notice or other communication hereunder\nshall be deemed duly delivered one (1) business day after it is sent for next-business-day delivery via a reputable nationwide overnight courier\nservice, in each case to the intended recipient as set forth below, or the same day of delivery if sent by both facsimile and email with\nconfirmation of receipt:\n7\nIf to the Company:\nAffinity Gaming\n3755 Breakthrough Way, Suite 300\nLas Vegas, Nevada 89135\nAttention: Marc Rubinstein, Esq.\nFacsimile: (702) 341-2581\nE-mail: mrubinstein@affinitygaming.com\nWith a copy to:\nMorrison & Foerster LLP\n425 Market Street\nSan Francisco, CA 94105\nAttention: Brandon C. Parris, Esq.\nFacsimile: (415) 276-6352\nE-mail: bparris@mofo.com\nIf to Receiving Party:\nZ Capital Partners L.L.C .\n1330 Avenue of the Americas\nSuite 1100\nNew York, NY 10019\nAttention: Martin Auerbach, Esq.\nFacsimile: (646) 304-0175\nE-mail: mauerbach@zcap.net\nWith a copy to:\nSidley Austin LLP\n1999 Avenue of the Stars, 17 Floor\nLos Angeles, CA 90067\nAttention: Vijay S. Sekhon, Esq.\nFacsimile: (310) 595-9501\nE-mail: vsekhon@sidley.com\nEither party may give any notice or other communication hereunder using any other means (including personal delivery, expedited\ncourier, messenger service, telecopy, telex, ordinary mail or electronic mail), but no such notice or other communication shall be deemed duly\ngiven unless and until the party for whom it is intended actually receives it. Any party may change the address to which notices and other\ncommunications hereunder are to be delivered by giving the other party notice in the manner herein set forth.\n(g)\nFor the convenience of the parties, this Agreement may be executed by facsimile or e-mail and in counterparts, each\nof which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.\n(h)\nThe section headings contained in this Agreement are inserted for convenience only and shall not affect in any way\nthe meaning or interpretation of this Agreement.\n8\n(i)\nIf any provision or portion of this Agreement is determined to be invalid or unenforceable for any reason, in whole or\nin part, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent\npermitted by applicable law and such invalid or unenforceable provision or portion shall be replaced by a provision or term that is valid and\nenforceable and that comes closest to expressing the parties’ intention with respect to such invalid or unenforceable provision or portion.\n[Remainder of page intentionally left blank]\n9\nExecuted as of the date first above written.\nAFFINITY GAMING\nBy: /s/ Marc H. Rubinstein\nTitle: Sr. VP, GC & Secretary\nZ CAPITAL PARTNERS L.L .C .\n/s/ James J. Zenni, Jr.\nBy: James J. Zenni, Jr.\nTitle: President and Chief Executive Officer\n[Signature page to Confidentiality Agreement]\n10\nth
+1c8babc8a7299e82486a96a3ced4424a.pdf	effective_date jurisdiction party term	EX-99.(E)(2) 5 dex99e2.htm NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nExhibit (e)(2)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is dated as of March 24, 2007 by and between Lone Star U.S . Acquisitions, LLC (the\n“Receiving Party”) and Accredited Home Lenders Holding Co. (the “Company”).\n1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business transaction with the Company (the\n“Transaction”), and, in order to assist the Receiving Party in evaluating the Transaction, the Company is prepared to make available to the Receiving\nParty certain information concerning the business, operations and assets of the Company (all such information, the “Confidential Information”). As a\ncondition to the Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents,\nconsultants, related investment funds, advisors, attorneys, accountants, potential sources of equity capital and financing, and financial advisors of the\nReceiving Party, in each case who need to know such information for the purpose of evaluating a Transaction on the Receiving Party’s behalf\n(collectively, “Representatives”), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this\nAgreement and to take or abstain from taking certain, and to cause its Representatives to take or abstain from taking, other actions hereinafter set\nforth.\n(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business,\noperations, strategy or prospects that is furnished to the Receiving Party by or on behalf of the Company, whether furnished before or after the date\nof this Agreement, including, without limitation, any analyses, business or strategic plans, compilations, studies, data, reports, interpretations,\nprojections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained, whether\ndocumentary, computerized or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy\nor prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives that contain or otherwise reflect such\ninformation or any conversations with Representatives of the Company describing or relating thereto.\n2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes generally available to the public\nother than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) is in the Receiving Party’s\npossession prior to disclosure by the Company or is independently derived by the Receiving Party without the aid, application or use of the\nConfidential Information or (c) is disclosed to the Receiving Party on a non-confidential basis by a third party not bound by any known duty or\nobligation of confidentiality.\n3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party and its Representatives shall use the\nConfidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall keep the Confidential Information in\nconfidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party\nmay make any disclosure of information contained in the Confidential Information to which the Company gives its prior written consent, and (ii) any\ninformation contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to\nsuch information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence; provided, further, that\nthe Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity capital (including, without\nlimitation, any potential co-investors) without the Company’s prior written consent. The Receiving Party shall be responsible for any breach of the\nterms of this Agreement by any of its Representatives, except to the extent that a Representative agrees in a writing delivered to the Company to be\nbound by the provisions hereof that are applicable to Representatives.\n(b) The Receiving Party agrees that it will use the Confidential Information solely for the purpose of the Transaction and for no other purpose.\nIn particular, the Receiving Party agrees that the Receiving Party and the Receiving Party’s affiliates with knowledge of the Transaction, and their\nrespective Representatives with\nknowledge of the Transaction, will not (i) divert or attempt to divert any business or customer of the Company or (ii) employ or attempt to employ or\ndivert any employee of the Company for so long as any such individual remains employed by the Company; provided, however, that the use of an\nindependent employment agency (so long as it is not directed to solicit such persons), advertisements in publications or other general solicitations for\nemployment not directed at such persons and the hiring as a result thereof shall not be deemed a violation of this paragraph.\n(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the\nReceiving Party hereby covenants to immediately notify the Company of any such unauthorized use. The Receiving Party shall be responsible for\nany breach of this letter by it or any of its Representatives.\n4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party, or except as may be required by\napplicable law or regulation, neither the Receiving Party, the Company nor any person acting on behalf of either of them shall disclose to any person\n(other than disclosures by (a) the Receiving Party to the Receiving Party’s Representatives or (b) the Company to the Company’s directors, officers,\nemployees, agents, consultants, advisors, attorneys and accountants (the “Company Representatives”)) that any discussions or negotiations are taking\nplace between the parties hereto concerning a possible Transaction, including the status of such discussions or negotiations; provided that the\nReceiving Party shall not make any such disclosures to any potential sources of equity capital (including, without limitation, any potential co-\ninvestors) without the Company’s prior written consent.\n5. No Representations by Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be\nmade available to the Receiving Party and its Representatives. Neither the Company nor any of the Company Representatives will be under any\nobligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to\nsupplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made\nor is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the\nCompany nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives\nrelating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those\nrepresentations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated\ntransaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal\neffect.\n6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party, the Receiving Party agrees\nthat, until eighteen (18) months from the date hereof, the Receiving Party shall not, and shall cause its affiliates and its and their respective\nRepresentatives with knowledge of the Transaction not to, directly or indirectly, alone or in concert with others: (a) acquire or offer or agree to\nacquire, by purchase or otherwise, (i) any voting securities or securities convertible into or exchangeable for voting securities of the Company or its\naffiliates (or acquire or offer or agree to acquire beneficial ownership of any such securities) or (ii) any assets, businesses or properties of the\nCompany or its affiliates; (b) propose to enter into, or make any public announcement or submit a proposal or offer (with or without conditions) with\nrespect to, any tender or exchange offer, merger or business combination, recapitalization, restructuring, liquidation, dissolution or other\nextraordinary transaction, or any licensing, distribution or other commercial arrangement, involving the Company, its affiliates or any of their\nrespective securities, assets, businesses or properties; (c) advise, seek to influence or control, in any manner whatsoever (including by proxy or\nconsent solicitation, obtaining representation on the board of directors or otherwise), the management, board of directors, policies or affairs of the\nCompany or its affiliates, or any person or entity with respect to the voting of, or giving of consents with respect to, any voting securities of the\nCompany or its affiliates, or initiate or support any stockholder proposal with respect to the Company or its affiliates; (d) form, join or in any way\nparticipate in a “group” (as such term is\n2\nused in Rule 13d-5 of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (e) disclose any intention, plan or\narrangement inconsistent with the foregoing, or make any request to waive or amend any provision of this Agreement or otherwise take any action if\nin the sole judgment of the Company such request or action may require public disclosure by the Company; or (f) enter into any discussions,\narrangements or understandings with, or otherwise assist, advise or encourage (including by providing or arranging financing for that purpose), any\nother person with respect to any of the foregoing. The Receiving Party also agrees during such eighteen (18) month period not to request the\nCompany or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this paragraph (including this sentence).\nNotwithstanding anything in this paragraph to the contrary, it is understood and agreed that the Receiving Party may invest in the securitization pools\nof the Company or its affiliates at any time.\n7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the\nConfidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its\nRepresentatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the foregoing, the Receiving Party may\nretain copies of the Confidential Information in accordance with policies and procedures of the Receiving Party solely in order to comply with law,\nregulation or archival purposes; provided, however, that any Confidential Information so retained will continue to be Confidential Information\npursuant to the terms of this Agreement and the Receiving Party will continue to be bound by the terms of this Agreement with respect to such\nConfidential Information.\n8. Subpoena or Court Order. In the event that the Receiving Party or any Representative to whom it discloses the Confidential Information\nreceives a request to disclose all or any part of the Confidential Information under the terms of a subpoena or other order issued by a court of\ncompetent jurisdiction or by another governmental agency, the Receiving Party or the Representative, as the case may be, shall (a) promptly notify\nthe Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps\nto resist or narrow such request, (c) if disclosure of such Confidential Information is required, furnish only such portion of the Confidential\nInformation as the Receiving Party (or the Representative, if applicable) is advised by counsel is legally required to be disclosed and (d) cooperate\nwith the Company in its efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the\nConfidential Information that is required to be disclosed.\n9. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a\nTransaction has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind\nwhatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives\nexcept, in the case of this Agreement, for the matters specifically agreed to herein.\n10. Remedies. The Receiving Party acknowledges that in the event of any breach of the terms of this Agreement, the Company could not be\nmade whole by monetary damages. Accordingly, the Company, in addition to any other remedy to which it may be entitled in law or in equity, shall\nbe entitled to an injunction to prevent breaches of the terms of this Agreement.\n11. Communications. Without the Company’s prior written consent, which may be withheld in the Company’s sole discretion, neither the\nReceiving Party nor any of its Representatives who are aware of the potential Transaction will initiate or cause to be initiated (other than through\nBear, Stearns & Co., Inc.) any (a) communication concerning the Confidential Information, (b) requests for meetings with management in\nconnection with the potential Transaction or other transaction between the parties or (c) communication relating to the business of the Company or\nits affiliates or the potential Transaction, in each case with any officer, director or employee of the Company or any of its affiliates.\n12. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been\nadvised that the United States securities laws prohibit any person having non-public\n3\nmaterial information about a company from purchasing or selling securities of that company. For the sake of clarity, and notwithstanding any other\nprovisions hereof, this letter shall not restrict any investment activities of the Receiving Party to the extent decisions with respect thereto are made by\na person to whom Confidential Information has not been disclosed.\n13. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to\nthe matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company\nexpressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their\nrespective successors and assigns.\n14. No Waiver. No failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor\nshall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n15. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to\nthe laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction\nof the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this\nAgreement; (b) agree that service of any process, summons, notice or document by U.S . registered mail to the address set forth at the end of this\nAgreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of the Receiving Party’s\nRepresentatives; (c) irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or\nrelating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waive the right to\nplead or claim, and irrevocably and unconditionally agree not to plead or claim, that any action, suit or proceeding arising out of or relating to this\nAgreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.\n16. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a party has breached this\nAgreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in\nconnection with such litigation, including any appeal therefrom.\n17. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any\nprovisions of this Agreement.\n18. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of\nwhich shall constitute one and the same Agreement.\n19. Term. Except as otherwise provided in Section 7, the provisions of this Agreement shall remain in effect until the earlier of (x) the date\nthat a Transaction between the Receiving Party (or an affiliate of the Receiving Party) and the Company is closed and (ii) eighteen (18) months from\nthe date of this Agreement.\n[Remainder of Page Intentionally Left Blank]\n4\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.\nACCREDITED HOME LENDERS\nHOLDING CO.\nBy: /s/ CELIA SZCZUKA\nName:\nTitle:\nCelia Szczuka\nSenior Counsel and Assistant VP\nLONE STAR U.S . ACQUISITIONS, LLC\nBy: /s/ CATHARON J. MILLER\nName:\nTitle:\nCatharon J. Miller\nVice President	EX-99.(E)(2) 5 dex99e2.htm NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nExhibit ()(2)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is dated as of March 24, 2007 by and between Lone Star U.S. Acquisitions, LL.C (the\n“Receiving Party”) and Accredited Home Lenders Holding Co. (the “Company”).\n1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business transaction with the Company (the\n“Transaction™), and, in order to assist the Receiving Party in evaluating the Transaction, the Company is prepared to make available to the Receiving\nParty certain information concerning the business, operations and assets of the Company (all such information, the “Confidential Information”). As a\ncondition to the Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents,\nconsultants, related investment funds, advisors, attorneys, accountants, potential sources of equity capital and financing, and financial advisors of the\nReceiving Party, in each case who need to know such information for the purpose of evaluating a Transaction on the Receiving Party’s behalf\n(collectively, “Representatives™), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this\nAgreement and to take or abstain from taking certain, and to cause its Representatives to take or abstain from taking, other actions hereinafter set\nforth.\n(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business,\noperations, strategy or prospects that is furnished to the Receiving Party by or on behalf of the Company, whether furnished before or after the date\nof this Agreement, including, without limitation, any analyses, business or strategic plans, compilations, studies, data, reports, interpretations,\nprojections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained, whether\ndocumentary, computerized or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy\nor prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives that contain or otherwise reflect such\ninformation or any conversations with Representatives of the Company describing or relating thereto.\n2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes generally available to the public\nother than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) is in the Receiving Party’s\npossession prior to disclosure by the Company or is independently derived by the Receiving Party without the aid, application or use of the\nConfidential Information or (c) is disclosed to the Receiving Party on a non-confidential basis by a third party not bound by any known duty or\nobligation of confidentiality.\n3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party and its Representatives shall use the\nConfidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall keep the Confidential Information in\nconfidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party\nmay make any disclosure of information contained in the Confidential Information to which the Company gives its prior written consent, and (ii) any\ninformation contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to\nsuch information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence; provided, further, that\nthe Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity capital (including, without\nlimitation, any potential co-investors) without the Company’s prior written consent. The Receiving Party shall be responsible for any breach of the\nterms of this Agreement by any of its Representatives, except to the extent that a Representative agrees in a writing delivered to the Company to be\nbound by the provisions hereof that are applicable to Representatives.\n \n \n(b) The Receiving Party agrees that it will use the Confidential Information solely for the purpose of the Transaction and for no other purpose.\nIn particular, the Receiving Party agrees that the Receiving Party and the Receiving Party’s affiliates with knowledge of the Transaction, and their\nrespective Representatives with\nknowledge of the Transaction, will not (i) divert or attempt to divert any business or customer of the Company or (ii) employ or attempt to employ or\ndivert any employee of the Company for so long as any such individual remains employed by the Company; provided, however, that the use of an\nindependent employment agency (so long as it is not directed to solicit such persons), advertisements in publications or other general solicitations for\nemployment not directed at such persons and the hiring as a result thereof shall not be deemed a violation of this paragraph.\n(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the\nReceiving Party hereby covenants to immediately notify the Company of any such unauthorized use. The Receiving Party shall be responsible for\nany breach of this letter by it or any of its Representatives.\n4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party, or except as may be required by\napplicable law or regulation, neither the Receiving Party, the Company nor any person acting on behalf of either of them shall disclose to any person\n(other than disclosures by (a) the Receiving Party to the Receiving Party’s Representatives or (b) the Company to the Company’s directors, officers,\nemployees, agents, consultants, advisors, attorneys and accountants (the “Company Representatives™)) that any discussions or negotiations are taking\nplace between the parties hereto concerning a possible Transaction, including the status of such discussions or negotiations; provided that the\nReceiving Party shall not make any such disclosures to any potential sources of equity capital (including, without limitation, any potential co-\ninvestors) without the Company’s prior written consent.\n5. No Representations by Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be\nmade available to the Receiving Party and its Representatives. Neither the Company nor any of the Company Representatives will be under any\nobligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to\nsupplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made\nor is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the\nCompany nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives\nrelating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those\nrepresentations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated\ntransaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal\neffect.\n6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party, the Receiving Party agrees\nthat, until eighteen (18) months from the date hereof, the Receiving Party shall not, and shall cause its affiliates and its and their respective\nRepresentatives with knowledge of the Transaction not to, directly or indirectly, alone or in concert with others: (a) acquire or offer or agree to\nacquire, by purchase or otherwise, (i) any voting securities or securities convertible into or exchangeable for voting securities of the Company or its\naffiliates (or acquire or offer or agree to acquire beneficial ownership of any such securities) or (ii) any assets, businesses or properties of the\nCompany or its affiliates; (b) propose to enter into, or make any public announcement or submit a proposal or offer (with or without conditions) with\nrespect to, any tender or exchange offer, merger or business combination, recapitalization, restructuring, liquidation, dissolution or other\nextraordinary transaction, or any licensing, distribution or other commercial arrangement, involving the Company, its affiliates or any of their\nrespective securities, assets, businesses or properties; (c) advise, seek to influence or control, in any manner whatsoever (including by proxy or\nconsent solicitation, obtaining representation on the board of directors or otherwise), the management, board of directors, policies or affairs of the\nCompany or its affiliates, or any person or entity with respect to the voting of, or giving of consents with respect to, any voting securities of the\nCompany or its affiliates, or initiate or support any stockholder proposal with respect to the Company or its affiliates; (d) form, join or in any way\nparticipate in a “group” (as such term is\nused in Rule 13d-5 of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (e) disclose any intention, plan or\narrangement inconsistent with the foregoing, or make any request to waive or amend any provision of this Agreement or otherwise take any action if\nin the sole judgment of the Company such request or action may require public disclosure by the Company; or (f) enter into any discussions,\narrangements or understandings with, or otherwise assist, advise or encourage (including by providing or arranging financing for that purpose), any\nother person with respect to any of the foregoing. The Receiving Party also agrees during such eighteen (18) month period not to request the\nCompany or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this paragraph (including this sentence).\nNotwithstanding anything in this paragraph to the contrary, it is understood and agreed that the Receiving Party may invest in the securitization pools\nof the Company or its affiliates at any time.\n7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the\nConfidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its\nRepresentatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the foregoing, the Receiving Party may\nretain copies of the Confidential Information in accordance with policies and procedures of the Receiving Party solely in order to comply with law,\nregulation or archival purposes; provided, however, that any Confidential Information so retained will continue to be Confidential Information\npursuant to the terms of this Agreement and the Receiving Party will continue to be bound by the terms of this Agreement with respect to such\nConfidential Information.\n8. Subpoena or Court Order. In the event that the Receiving Party or any Representative to whom it discloses the Confidential Information\nreceives a request to disclose all or any part of the Confidential Information under the terms of a subpoena or other order issued by a court of\ncompetent jurisdiction or by another governmental agency, the Receiving Party or the Representative, as the case may be, shall (a) promptly notify\nthe Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps\nto resist or narrow such request, (c) if disclosure of such Confidential Information is required, furnish only such portion of the Confidential\nInformation as the Receiving Party (or the Representative, if applicable) is advised by counsel is legally required to be disclosed and (d) cooperate\nwith the Company in its efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the\nConfidential Information that is required to be disclosed.\n9. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a\nTransaction has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind\nwhatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives\nexcept, in the case of this Agreement, for the matters specifically agreed to herein.\n10. Remedies. The Receiving Party acknowledges that in the event of any breach of the terms of this Agreement, the Company could not be\nmade whole by monetary damages. Accordingly, the Company, in addition to any other remedy to which it may be entitled in law or in equity, shall\nbe entitled to an injunction to prevent breaches of the terms of this Agreement.\n11. Communications. Without the Company’s prior written consent, which may be withheld in the Company’s sole discretion, neither the\nReceiving Party nor any of its Representatives who are aware of the potential Transaction will initiate or cause to be initiated (other than through\nBear, Stearns & Co., Inc.) any (a) communication concerning the Confidential Information, (b) requests for meetings with management in\nconnection with the potential Transaction or other transaction between the parties or (c) communication relating to the business of the Company or\nits affiliates or the potential Transaction, in each case with any officer, director or employee of the Company or any of its affiliates.\n12. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been\nadvised that the United States securities laws prohibit any person having non-public\n3\nmaterial information about a company from purchasing or selling securities of that company. For the sake of clarity, and notwithstanding any other\nprovisions hereof, this letter shall not restrict any investment activities of the Receiving Party to the extent decisions with respect thereto are made by\na person to whom Confidential Information has not been disclosed.\n13. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to\nthe matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company\nexpressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their\nrespective successors and assigns.\n14. No Waiver. No failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor\nshall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n15. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to\nthe laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction\nof the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this\nAgreement; (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this\nAgreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of the Receiving Party’s\nRepresentatives; (c) irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or\nrelating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waive the right to\nplead or claim, and irrevocably and unconditionally agree not to plead or claim, that any action, suit or proceeding arising out of or relating to this\nAgreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.\n16. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a party has breached this\nAgreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in\nconnection with such litigation, including any appeal therefrom.\n17. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any\nprovisions of this Agreement.\n18. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of\nwhich shall constitute one and the same Agreement.\n19. Term. Except as otherwise provided in Section 7, the provisions of this Agreement shall remain in effect until the earlier of (x) the date\nthat a Transaction between the Receiving Party (or an affiliate of the Receiving Party) and the Company is closed and (ii) eighteen (18) months from\nthe date of this Agreement.\n[Remainder of Page Intentionally Left Blank]\n4\nIN WITNESS WHEREOQF, THIS AGREEMENT is executed and delivered effective as of the date first written above.\nACCREDITED HOME LENDERS\nHOLDING CO.\nBy: /s/ CELIA SZCZUKA\nName: Celia Szczuka\nTitle:  Senior Counsel and Assistant VP\nLONE STAR U.S. ACQUISITIONS, LLC\nBy: /s/  CATHARON J. MILLER\nName: Catharon J. Miller\nTitle:  Vice President	EX-99.(E)(2) 5 dex99e2.htm NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nExhibit (e)(2)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the "Agreement") is dated as of March 24, 2007 by and between Lone Star U.S. Acquisitions, LLC (the\n"Receiving. Party.") and Accredited Home Lenders Holding Co. (the "Company.").\n1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business transaction with the Company (the\n"Transaction"), and, in order to assist the Receiving Party in evaluating the Transaction, the Company is prepared to make available to the Receiving\nParty certain information concerning the business, operations and assets of the Company (all such information, the "Confidential Information").\nAs\na\ncondition\nto\nthe\nConfidential\nInformation\nbeing\nfurnished\nto\nthe\nReceiving\nParty\nand\nthe\ndirectors,\nofficers,\npartners,\nmembers,\nemployees,\nagents,\nconsultants, related investment funds, advisors, attorneys, accountants, potential sources of equity capital and financing, and financial advisors of the\nReceiving Party, in each case who need to know such information for the purpose of evaluating a Transaction on the Receiving Party's behalf\n(collectively, "Representatives"), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this\nAgreement and to take or abstain from taking certain, and to cause its Representatives to take or abstain from taking, other actions hereinafter set\nforth.\n(b) The term "Confidential Information" shall include, without limitation, any and all information concerning the Company and its business,\noperations, strategy or prospects that is furnished to the Receiving Party by or on behalf of the Company, whether furnished before or after the date\nof this Agreement, including, without limitation, any analyses, business or strategic plans, compilations, studies, data, reports, interpretations,\nprojections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained, whether\ndocumentary, computerized or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy\nor prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party's Representatives that contain or otherwise reflect such\ninformation or any conversations with Representatives of the Company describing or relating thereto.\n2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes generally available to the public\nother than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) is in the Receiving Party's\npossession prior to disclosure by the Company or is independently derived by the Receiving Party without the aid, application or use of the\nConfidential Information or (c) is disclosed to the Receiving Party on a non-confidential basis by a third party not bound by any known duty or\nobligation of confidentiality.\n3. Limitations on Use and Disclosure of Confidential Information (a) The Receiving Party and its Representatives shall use the\nConfidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall keep the Confidential Information in\nconfidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party\nmay make any disclosure of information contained in the Confidential Information to which the Company gives its prior written consent, and (ii) any\ninformation contained in the Confidential Information may be disclosed to the Receiving Party's Representatives who reasonably require access to\nsuch information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence; provided, further, that\nthe Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity capital (including, without\nlimitation, any potential co-investors) without the Company's prior written consent. The Receiving Party shall be responsible for any breach of the\nterms of this Agreement by any of its Representatives, except to the extent that a Representative agrees in a writing delivered to the Company\nto\nbe\nbound by the provisions hereof that are applicable to Representatives.\n(b) The Receiving Party agrees that it will use the Confidential Information solely for the purpose of the Transaction and for no other purpose.\nIn\nparticular, the Receiving Party agrees that the Receiving Party and the Receiving Party's affiliates with knowledge of the Transaction, and their\nrespective Representatives with\nknowledge of the Transaction, will not (i) divert or attempt to divert any business or customer of the Company or (ii) employ or attempt to employ or\ndivert any employee of the Company for so long as any such individual remains employed by the Company; provided, however, that the use of an\nindependent employment agency (so long as it is not directed to solicit such persons), advertisements in publications or other general solicitations for\nemployment not directed at such persons and the hiring as a result thereof shall not be deemed a violation of this paragraph.\n(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the\nReceiving Party hereby covenants to immediately notify the Company of any such unauthorized use. The Receiving Party shall be responsible for\nany breach of this letter by it or any of its Representatives.\n4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party, or except as may be required by\napplicable law or regulation, neither the Receiving Party, the Company nor any person acting on behalf of either of them shall disclose to any person\n(other\nthan disclosures by (a) the Receiving Party to the Receiving Party's Representatives or (b) the Company to the Company's directors, officers,\nemployees, agents, consultants, advisors, attorneys and accountants (the "Company. Representatives")) that any discussions or negotiations are taking\nplace between the parties hereto concerning a possible Transaction, including the status of such discussions or negotiations; provided that the\nReceiving Party shall not make any such disclosures to any potential sources of equity capital (including, without limitation, any potential co-\ninvestors) without the Company's prior written consent.\n5. No Representations by Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be\nmade available to the Receiving Party and its Representatives. Neither the Company nor any of the Company Representatives will be under any\nobligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party's Representatives or\nto\nsupplement\nor\nupdate\nany\nConfidential\nInformation\npreviously\nfurnished.\nNeither\nthe\nCompany\nnor\nany\nof\nthe\nCompany\nRepresentatives\nhas\nmade\nor is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the\nCompany nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party's Representatives\nrelating to or resulting from the use of any Confidentia Information or any inaccuracies or errors therein or omissions therefrom. Only those\nrepresentations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated\ntransaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal\neffect.\n6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party, the Receiving Party agrees\nthat, until eighteen (18) months from the date hereof, the Receiving Party shall not, and shall cause its affiliates and its and their respective\nRepresentatives with knowledge of the Transaction not to, directly or indirectly, alone or in concert with others: (a) acquire or offer or agree\nto\nacquire, by purchase or otherwise, (i) any voting securities or securities convertible into or exchangeable for voting securities of the Company or its\naffiliates (or acquire or offer or agree to acquire beneficial ownership of any such securities) or (ii) any assets, businesses or properties of the\nCompany or its affiliates; (b) propose to enter into, or make any public announcement or submit a proposal or offer (with or without conditions) with\nrespect to, any tender or exchange offer, merger or business combination, recapitalization, restructuring, liquidation, dissolution or other\nextraordinary transaction, or any licensing, distribution or other commercial arrangement, involving the Company, its affiliates or any of their\nrespective securities, assets, businesses or properties; (c) advise, seek to influence or control, in any manner whatsoever (including by proxy or\nconsent solicitation, obtaining representation on the board of directors or otherwise), the management, board of directors, policies or affairs of\nthe\nCompany or its affiliates, or any person or entity with respect to the voting of, or giving of consents with respect to, any voting securities of the\nCompany or its affiliates, or initiate or support any stockholder proposal with respect to the Company or its affiliates; (d) form, join or in any way\nparticipate in a "group" (as such term is\n2\nused in Rule 13d-5 of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (e) disclose any intention, plan or\narrangement inconsistent with the foregoing, or make any request to waive or amend any provision of this Agreement or otherwise take any action if\nin the sole judgment of the Company such request or action may require public disclosure by the Company; or (f) enter into any discussions,\narrangements or understandings with, or otherwise assist, advise or encourage (including by providing or arranging financing for that purpose), any\nother person with respect to any of the foregoing. The Receiving Party also agrees during such eighteen (18) month period not to request the\nCompany or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this paragraph (including this sentence).\nNotwithstanding anything in this paragraph to the contrary, it is understood and agreed that the Receiving Party may invest in the securitization pools\nof the Company or its affiliates at any time.\n7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the\nConfidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its\nRepresentatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the foregoing, the Receiving Party may\nretain copies of the Confidentia Information in accordance with policies and procedures of the Receiving Party solely in order to comply with law,\nregulation or archival purposes; provided, however, that any Confidential Information so retained will continue to be Confidential Information\npursuant to the terms of this Agreement and the Receiving Party will continue to be bound by the terms of this Agreement with respect to such\nConfidential Information.\n8. Subpoena or Court Order. In the event that the Receiving Party or any Representative to whom it discloses the Confidential Information\nreceives a request to disclose all or any part of the Confidential Information under the terms of a subpoena or other order issued by a court of\ncompetent jurisdiction or by another governmental agency, the Receiving Party or the Representative, as the case may be, shall (a) promptly notify\nthe Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps\nto resist or narrow such request, (c) if disclosure of such Confidential Information is required, furnish only such portion of the Confidential\nInformation as the Receiving Party (or the Representative, if applicable) is advised by counsel is legally required to be disclosed and (d) cooperate\nwith the Company in its efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the\nConfidential Information that is required to be disclosed.\n9. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a\nTransaction has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind\nwhatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives\nexcept, in the case of this Agreement, for the matters specifically agreed to herein.\n10. Remedies. The Receiving Party acknowledges that in the event of any breach of the terms of this Agreement, the Company could not be\nmade whole by monetary damages. Accordingly, the Company, in addition to any other remedy to which it may be entitled in law or in equity, shall\nbe entitled to an injunction to prevent breaches of the terms of this Agreement.\n11. Communications. Without the Company's prior written consent, which may be withheld in the Company's sole discretion, neither the\nReceiving Party nor any of its Representatives who are aware of the potential Transaction will initiate or cause to be initiated (other than through\nBear, Stearns & Co., Inc.) any (a) communication concerning the Confidential Information, (b) requests for meetings with management in\nconnection with the potential Transaction or other transaction between the parties or (c) communication relating to the business of the Company or\nits affiliates or the potential Transaction, in each case with any officer, director or employee of the Company or any of its affiliates.\n12. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been\nadvised that the United States securities laws prohibit any person having non-public\n3\nmaterial information about a company from purchasing or selling securities of that company. For the sake of clarity, and notwithstanding any other\nprovisions hereof, this letter shall not restrict any investment activities of the Receiving Party to the extent decisions with respect thereto are made by\na person to whom Confidential Information has not been disclosed.\n13. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to\nthe\nmatters\ncontained\nherein,\nand\nmay\nbe\namended,\nmodified\nor\nwaived\nonly\nby\na\nseparate\nwriting\nexecuted\nby\nthe\nReceiving\nParty\nand\nthe\nCompany\nexpressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their\nrespective successors and assigns.\n14. No Waiver. No failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor\nshall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n15.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to\nthe laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction\nof the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this\nAgreement; (b) agree that service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this\nAgreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of the Receiving Party's\nRepresentatives; (c) irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of\nor\nrelating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waive the right to\nplead or claim, and irrevocably and unconditionally agree not to plead or claim, that any action, suit or proceeding arising out of or relating to this\nAgreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.\n16. Expenses. In the event of litigation relating to this Agreement if a court of competent jurisdiction determines that a party has breached this\nAgreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in\nconnection with such litigation, including any appeal therefrom.\n17. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any\nprovisions of this Agreement.\n18. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of\nwhich shall constitute one and the same Agreement.\n19. Term. Except as otherwise provided in Section 7, the provisions of this Agreement shall remain in effect until the earlier of (x) the date\nthat a Transaction between the Receiving Party (or an affiliate of the Receiving Party) and the Company is closed and (ii) eighteen (18) months from\nthe date of this Agreement.\n[Remainder of Page Intentionally Left Blank]\n4\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.\nACCREDITED HOME LENDERS\nHOLDING CO.\nBy:\n/s/ CELIA SZCZUKA\nName: Celia Szczuka\nTitle: Senior Counsel and Assistant VP\nLONE STAR U.S. ACQUISITIONS, LLC\nBy:\n/s/ CATHARON J. MILLER\nName: Catharon J. Miller\nTitle: Vice President	EX-99.(E)(2) 5 dex99e2.htm NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nExhibit (e)(2)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (the “Agreement”) is dated as of March 24, 2007 by and between Lone Star U.S . Acquisitions, LLC (the\n“Receiving Party”) and Accredited Home Lenders Holding Co. (the “Company”).\n1. Confidential Information; Representatives. (a) The Receiving Party is considering a possible business transaction with the Company (the\n“Transaction”), and, in order to assist the Receiving Party in evaluating the Transaction, the Company is prepared to make available to the Receiving\nParty certain information concerning the business, operations and assets of the Company (all such information, the “Confidential Information”). As a\ncondition to the Confidential Information being furnished to the Receiving Party and the directors, officers, partners, members, employees, agents,\nconsultants, related investment funds, advisors, attorneys, accountants, potential sources of equity capital and financing, and financial advisors of the\nReceiving Party, in each case who need to know such information for the purpose of evaluating a Transaction on the Receiving Party’s behalf\n(collectively, “Representatives”), the Receiving Party agrees to treat the Confidential Information in accordance with the provisions of this\nAgreement and to take or abstain from taking certain, and to cause its Representatives to take or abstain from taking, other actions hereinafter set\nforth.\n(b) The term “Confidential Information” shall include, without limitation, any and all information concerning the Company and its business,\noperations, strategy or prospects that is furnished to the Receiving Party by or on behalf of the Company, whether furnished before or after the date\nof this Agreement, including, without limitation, any analyses, business or strategic plans, compilations, studies, data, reports, interpretations,\nprojections, forecasts, records, notes, copies, excerpts, memoranda, documents or other materials (in whatever form maintained, whether\ndocumentary, computerized or otherwise), that contain or otherwise reflect information concerning the Company or its business, operations, strategy\nor prospects prepared by or on behalf of the Receiving Party or any of the Receiving Party’s Representatives that contain or otherwise reflect such\ninformation or any conversations with Representatives of the Company describing or relating thereto.\n2. Excluded Information. The Confidential Information shall not include information that (a) is or becomes generally available to the public\nother than as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (b) is in the Receiving Party’s\npossession prior to disclosure by the Company or is independently derived by the Receiving Party without the aid, application or use of the\nConfidential Information or (c) is disclosed to the Receiving Party on a non-confidential basis by a third party not bound by any known duty or\nobligation of confidentiality.\n3. Limitations on Use and Disclosure of Confidential Information. (a) The Receiving Party and its Representatives shall use the\nConfidential Information solely for the purpose of evaluating a possible Transaction. The Receiving Party shall keep the Confidential Information in\nconfidence and shall not disclose any of the Confidential Information in any manner whatsoever; provided, however, that (i) the Receiving Party\nmay make any disclosure of information contained in the Confidential Information to which the Company gives its prior written consent, and (ii) any\ninformation contained in the Confidential Information may be disclosed to the Receiving Party’s Representatives who reasonably require access to\nsuch information for the purpose of evaluating a possible Transaction and who agree to keep such information in confidence; provided, further, that\nthe Receiving Party shall not make any disclosure of any Confidential Information to any potential sources of equity capital (including, without\nlimitation, any potential co-investors) without the Company’s prior written consent. The Receiving Party shall be responsible for any breach of the\nterms of this Agreement by any of its Representatives, except to the extent that a Representative agrees in a writing delivered to the Company to be\nbound by the provisions hereof that are applicable to Representatives.\n(b) The Receiving Party agrees that it will use the Confidential Information solely for the purpose of the Transaction and for no other purpose.\nIn particular, the Receiving Party agrees that the Receiving Party and the Receiving Party’s affiliates with knowledge of the Transaction, and their\nrespective Representatives with\nknowledge of the Transaction, will not (i) divert or attempt to divert any business or customer of the Company or (ii) employ or attempt to employ or\ndivert any employee of the Company for so long as any such individual remains employed by the Company; provided, however, that the use of an\nindependent employment agency (so long as it is not directed to solicit such persons), advertisements in publications or other general solicitations for\nemployment not directed at such persons and the hiring as a result thereof shall not be deemed a violation of this paragraph.\n(c) If the Receiving Party discovers any unauthorized disclosure or use of any Confidential Information by it or its Representatives, the\nReceiving Party hereby covenants to immediately notify the Company of any such unauthorized use. The Receiving Party shall be responsible for\nany breach of this letter by it or any of its Representatives.\n4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other party, or except as may be required by\napplicable law or regulation, neither the Receiving Party, the Company nor any person acting on behalf of either of them shall disclose to any person\n(other than disclosures by (a) the Receiving Party to the Receiving Party’s Representatives or (b) the Company to the Company’s directors, officers,\nemployees, agents, consultants, advisors, attorneys and accountants (the “Company Representatives”)) that any discussions or negotiations are taking\nplace between the parties hereto concerning a possible Transaction, including the status of such discussions or negotiations; provided that the\nReceiving Party shall not make any such disclosures to any potential sources of equity capital (including, without limitation, any potential co-\ninvestors) without the Company’s prior written consent.\n5. No Representations by Company. The Company will have the exclusive authority to decide what Confidential Information (if any) is to be\nmade available to the Receiving Party and its Representatives. Neither the Company nor any of the Company Representatives will be under any\nobligation to make any particular Confidential Information available to the Receiving Party or any of the Receiving Party’s Representatives or to\nsupplement or update any Confidential Information previously furnished. Neither the Company nor any of the Company Representatives has made\nor is making any representation or warranty, express or implied, as to the accuracy or completeness of any Confidential Information, and neither the\nCompany nor any of the Company Representatives will have any liability to the Receiving Party or to any of the Receiving Party’s Representatives\nrelating to or resulting from the use of any Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those\nrepresentations and warranties (if any) that are included in any final definitive written agreement that provides for the consummation of a negotiated\ntransaction between the Receiving Party and the Company and is validly executed on behalf of the Receiving Party and the Company will have legal\neffect.\n6. Standstill Agreement. In consideration of the Confidential Information being furnished to the Receiving Party, the Receiving Party agrees\nthat, until eighteen (18) months from the date hereof, the Receiving Party shall not, and shall cause its affiliates and its and their respective\nRepresentatives with knowledge of the Transaction not to, directly or indirectly, alone or in concert with others: (a) acquire or offer or agree to\nacquire, by purchase or otherwise, (i) any voting securities or securities convertible into or exchangeable for voting securities of the Company or its\naffiliates (or acquire or offer or agree to acquire beneficial ownership of any such securities) or (ii) any assets, businesses or properties of the\nCompany or its affiliates; (b) propose to enter into, or make any public announcement or submit a proposal or offer (with or without conditions) with\nrespect to, any tender or exchange offer, merger or business combination, recapitalization, restructuring, liquidation, dissolution or other\nextraordinary transaction, or any licensing, distribution or other commercial arrangement, involving the Company, its affiliates or any of their\nrespective securities, assets, businesses or properties; (c) advise, seek to influence or control, in any manner whatsoever (including by proxy or\nconsent solicitation, obtaining representation on the board of directors or otherwise), the management, board of directors, policies or affairs of the\nCompany or its affiliates, or any person or entity with respect to the voting of, or giving of consents with respect to, any voting securities of the\nCompany or its affiliates, or initiate or support any stockholder proposal with respect to the Company or its affiliates; (d) form, join or in any way\nparticipate in a “group” (as such term is\n2\nused in Rule 13d-5 of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (e) disclose any intention, plan or\narrangement inconsistent with the foregoing, or make any request to waive or amend any provision of this Agreement or otherwise take any action if\nin the sole judgment of the Company such request or action may require public disclosure by the Company; or (f) enter into any discussions,\narrangements or understandings with, or otherwise assist, advise or encourage (including by providing or arranging financing for that purpose), any\nother person with respect to any of the foregoing. The Receiving Party also agrees during such eighteen (18) month period not to request the\nCompany or any of the Company Representatives, directly or indirectly, to amend or waive any provision of this paragraph (including this sentence).\nNotwithstanding anything in this paragraph to the contrary, it is understood and agreed that the Receiving Party may invest in the securitization pools\nof the Company or its affiliates at any time.\n7. Return of Confidential Information. Promptly upon the written request of the Company, the Receiving Party will return all copies of the\nConfidential Information to the Company, and all notes, studies, reports, memoranda and other documents prepared by the Receiving Party or its\nRepresentatives that contain or reflect any Confidential Information shall be destroyed. Notwithstanding the foregoing, the Receiving Party may\nretain copies of the Confidential Information in accordance with policies and procedures of the Receiving Party solely in order to comply with law,\nregulation or archival purposes; provided, however, that any Confidential Information so retained will continue to be Confidential Information\npursuant to the terms of this Agreement and the Receiving Party will continue to be bound by the terms of this Agreement with respect to such\nConfidential Information.\n8. Subpoena or Court Order. In the event that the Receiving Party or any Representative to whom it discloses the Confidential Information\nreceives a request to disclose all or any part of the Confidential Information under the terms of a subpoena or other order issued by a court of\ncompetent jurisdiction or by another governmental agency, the Receiving Party or the Representative, as the case may be, shall (a) promptly notify\nthe Company of the existence, terms and circumstances surrounding such a request, (b) consult with the Company on the advisability of taking steps\nto resist or narrow such request, (c) if disclosure of such Confidential Information is required, furnish only such portion of the Confidential\nInformation as the Receiving Party (or the Representative, if applicable) is advised by counsel is legally required to be disclosed and (d) cooperate\nwith the Company in its efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the\nConfidential Information that is required to be disclosed.\n9. Definitive Agreement. Unless and until a definitive written agreement between the Receiving Party and the Company with respect to a\nTransaction has been executed and delivered, neither the Receiving Party nor the Company will be under any legal obligation of any kind\nwhatsoever with respect to such a Transaction by virtue of this or any other written or oral expression by either of them or their Representatives\nexcept, in the case of this Agreement, for the matters specifically agreed to herein.\n10. Remedies. The Receiving Party acknowledges that in the event of any breach of the terms of this Agreement, the Company could not be\nmade whole by monetary damages. Accordingly, the Company, in addition to any other remedy to which it may be entitled in law or in equity, shall\nbe entitled to an injunction to prevent breaches of the terms of this Agreement.\n11. Communications. Without the Company’s prior written consent, which may be withheld in the Company’s sole discretion, neither the\nReceiving Party nor any of its Representatives who are aware of the potential Transaction will initiate or cause to be initiated (other than through\nBear, Stearns & Co., Inc.) any (a) communication concerning the Confidential Information, (b) requests for meetings with management in\nconnection with the potential Transaction or other transaction between the parties or (c) communication relating to the business of the Company or\nits affiliates or the potential Transaction, in each case with any officer, director or employee of the Company or any of its affiliates.\n12. Securities Laws. The Receiving Party acknowledges that it is aware and that the Receiving Party and its Representatives have been\nadvised that the United States securities laws prohibit any person having non-public\n3\nmaterial information about a company from purchasing or selling securities of that company. For the sake of clarity, and notwithstanding any other\nprovisions hereof, this letter shall not restrict any investment activities of the Receiving Party to the extent decisions with respect thereto are made by\na person to whom Confidential Information has not been disclosed.\n13. Entire Agreement; Amendments. This Agreement represents the entire understanding and agreement of the parties hereto with respect to\nthe matters contained herein, and may be amended, modified or waived only by a separate writing executed by the Receiving Party and the Company\nexpressly so amending, modifying or waiving this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their\nrespective successors and assigns.\n14. No Waiver. No failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor\nshall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n15. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to\nthe laws of conflict of laws. The Receiving Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction\nof the state and federal courts located in the State of New York for purposes of any action, suit or proceeding arising out of or relating to this\nAgreement; (b) agree that service of any process, summons, notice or document by U.S . registered mail to the address set forth at the end of this\nAgreement shall be effective service of process for any action, suit or proceeding brought against the Receiving Party or any of the Receiving Party’s\nRepresentatives; (c) irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or\nrelating to this Agreement in any state or federal court located in the State of New York; and (d) irrevocably and unconditionally waive the right to\nplead or claim, and irrevocably and unconditionally agree not to plead or claim, that any action, suit or proceeding arising out of or relating to this\nAgreement that is brought in any state or federal court located in the State of New York has been brought in an inconvenient forum.\n16. Expenses. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a party has breached this\nAgreement, then such party shall be liable and pay to the non-breaching party the legal fees and expenses such non-breaching party has incurred in\nconnection with such litigation, including any appeal therefrom.\n17. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation of any\nprovisions of this Agreement.\n18. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of\nwhich shall constitute one and the same Agreement.\n19. Term. Except as otherwise provided in Section 7, the provisions of this Agreement shall remain in effect until the earlier of (x) the date\nthat a Transaction between the Receiving Party (or an affiliate of the Receiving Party) and the Company is closed and (ii) eighteen (18) months from\nthe date of this Agreement.\n[Remainder of Page Intentionally Left Blank]\n4\nIN WITNESS WHEREOF, THIS AGREEMENT is executed and delivered effective as of the date first written above.\nACCREDITED HOME LENDERS\nHOLDING CO.\nBy: /s/ CELIA SZCZUKA\nName:\nTitle:\nCelia Szczuka\nSenior Counsel and Assistant VP\nLONE STAR U.S . ACQUISITIONS, LLC\nBy: /s/ CATHARON J. MILLER\nName:\nTitle:\nCatharon J. Miller\nVice President
+1d43f9810804edab74b1d3388e3ecbca.pdf	jurisdiction party	Exhibit 10.16\nFIRST OAK BROOK BANCSHARES, INC.\nOAK BROOK BANK\nAgreement Regarding\nConfidentiality, Non-Solicitation of Customers and Employees\nand Prohibited Conduct\nThis Agreement is made by and between the undersigned (“Employee”) and First Oak Brook Bancshares, Inc., Oak Brook Bank\nand/or a subsidiary or affiliate of either of them (each such entities, separately and collectively referred to herein as “Bank”).\nAs a condition to and in consideration of Employee’s employment and/or continued employment by the Bank, and/or Employee’s\neligibility to receive and/or receipt of awards of bonus or incentive compensation under the First Oak Brook Bancshares, Inc.\nIncentive Compensation Plan and/or a similar or successor plan, or otherwise (such awards “Incentive Awards”), the parties agree to\nthe following:\n1. CONFIDENTIAL INFORMATION\n1.1 Disclosure or Use. Employee understands and acknowledges, that by virtue of his or her employment with Bank, he or she\nwill learn or develop Confidential Information (as that term is defined herein). Employee further acknowledges that unauthorized\ndisclosure or use of such Confidential Information, other than in discharge of his or her duties, will cause the Bank irreparable harm.\nAccordingly, during the term of his or her employment and thereafter, Employee agrees not to use any Confidential Information\nexcept in furtherance of his or her duties for the Bank, nor to disclose any Confidential Information except to officers or other\nEmployees of the Bank when it is necessary, in the ordinary course of business, to do so. Upon termination of employment with the\nBank for any reason, Employee shall not, directly or indirectly, disclose, publish, communicate or use on his or her behalf or\nanother’s behalf, any Confidential Information. Employee acknowledges that the Bank operates and competes in Illinois and other\njurisdictions, and that the Bank will be harmed by unauthorized disclosure or use of Confidential Information, regardless of where\nsuch disclosure or use occurs, and that therefore this confidentiality agreement is not limited to any single state, country or\njurisdiction.\n1.2 Confidential Information. For purposes of this Agreement, “Confidential Information” shall mean trade secrets and other\nproprietary information concerning the products, processes or services of the Bank and information regarding customers and\nprospective customers of the Bank, which information (a) has not been made generally available to the public, and is useful or of\nvalue to the Bank’s current or anticipated business activities or of those of any customer or prospective customer of the Bank; or\n(b) is known by Employee to be confidential, or has been identified to Employee as confidential, either orally or in writing, or is\nrequired by applicable law, rule or regulation to be maintained as confidential by the Bank including, but not limited to: computer\nprograms; research and other statistical data and analyses; marketing, organizational or other research and development, or business\nplans; personnel information, including the identity of other employees of the Bank, their responsibilities, competence, abilities, and\ncompensation; financial, accounting and similar records of the Bank and/or any fund or account managed by the Bank; current and\nprospective customer lists and information on clients and their employees; customer financial statements, investment objectives, the\nnature of their investment portfolios and contractual agreements with the Bank; information concerning planned or pending\ninvestment products, acquisitions or divestitures.\n1.3 Exceptions. Confidential Information shall not include information which: (a) is in or hereafter enters the public domain\nthrough no fault of Employee; (b) is obtained by Employee from a third party having the legal right to use and disclose the same; or\n(c) is in the possession of Employee prior to receipt from the Bank (as evidenced by Employee’s written records pre-dating the date\nof employment).\n2. BANK PROPERTY\nAll notes, reports, plans, published memoranda or other documents created, developed, generated or held by Employee during\nemployment, concerning or related to the Bank’s business, and whether containing or relating to Confidential Information or not, and\nall tangible personal property of the Bank entrusted to Employee or in Employee’s direct or indirect possession or control, are the\nproperty of the Bank, and will be promptly delivered to the Bank and not thereafter used by Employee upon termination of\nEmployee’s employment for any reason whatsoever.\n3. BANK CUSTOMERS AND EMPLOYEES; NON-DISPARAGEMENT\nEmployee understands that Bank’s name and its relationships with its customers and employees, including its interest in\nmaintaining a stable workforce, are extremely valuable and are the result of the expenditure of substantial time, effort and resources\nby the Bank. Therefore, during the period of Employee’s employment and during the period ending (1) from the last day of\nEmployee’s employment with the Bank, Employee agrees that he or she will not, directly or indirectly, on behalf of himself or herself\nor any other person, business or entity:\n(a) solicit or attempt to solicit for the purpose of providing to, or provide to, any protected customer or any prospective customer\nof the Bank services or products of any kind which are offered or provided by the Bank, or assist any person, business or entity to do\nso; or\n(b) induce, recruit, solicit or encourage any protected employee to leave the employ of the Bank, or induce, solicit, recruit, attempt\nto recruit any protected employee to accept employment with another person, business or entity, or employ or be employed with a\nprotected employee, or assist any other person, business or entity to do so; or\n(c) make, or cause to be made, any statement or disclosure that disparages the Bank, or any of its affiliates, or any of their\ndirectors, officers or employees, or assist any other person, business or entity to do so.\nFor purposes of the Agreement, (x) “protected customer” means any business, entity or person which is or was a customer of the\nBank at any time during the period of Employee’s employment, other than any customer which had ceased to do business with the\nBank at least 12 months prior to Employee’s last day of employment, (y) “prospective customer” means any business, entity or\nperson which was contacted by the Employee or known by the Employee to have been contacted by any officer of the Bank, for the\npurpose of soliciting or attempting to solicit to provide services or products to such business, entity, person, other than any such\nbusiness, entity or person with respect to whom the most recent such contact occurred at least six months prior to Employee’s last day\nof employment, and (z) “protected employee” means any person who is or was an employee of the Bank during the period of\nEmployee’s employment, other than a former employee who has not been employed by the Bank for a period of at least six months\nand who terminated his or her employment with the Bank without any inducement or attempted inducement, recruiting, solicitation or\nencouragement by Employee or by any other employee of the Bank subject to a similar covenant.\n4. MISCELLANEOUS\n4.1 Acknowledgment and Remedies. In executing this Agreement, Employee does not rely on any inducements, promises or\nrepresentations of the Bank, or its officers or directors, other than the terms and conditions specifically set forth in this Agreement,\nand Employee acknowledges that he or she is an “at-will” employee of the Bank and nothing set forth herein gives or shall be deemed\nto give the Employee any right to remain in the employ of the Bank or to receive Incentive Awards. Employee further acknowledges\nthat the statements herein are true and correct; that Employee has read and understands all of the terms of this Agreement; and that\nemployment or continued employment by the Bank and/or eligibility for and/or receipt of Incentive Awards constitutes adequate\nconsideration for Employee’s obligations hereunder and for the covenants set forth above. Employee acknowledges that failure to\ncomply with Section 1 through 3 will cause irreparable damage to the Bank. Therefore, Employee agrees that, in addition to any other\nremedies at law or in equity available to the Bank for Employee’s breach or threatened breach of this Agreement, or the forfeiture or\ncancellation of, or the repayment to the Bank of gains realized from, Incentive Awards in accordance with the terms thereof, the Bank\nis entitled to specific performance or injunctive relief against Employee to prevent such damage or breach. In addition, in the event of\na breach or a violation of any of the covenants or provisions of Sections 1, 2 or 3 of this Agreement, the Employee shall be obligated\nto repay to the Bank any amounts received as severance pay and shall forfeit all rights to any further payments from the Bank.\nIn the event of a breach or a violation by Employee of any of the covenants and provisions of Sections 1 through 3 of this\nAgreement, the running of the period of restriction on the solicitation of customers and employees set forth in Section 3 (but not of\nEmployee’s obligation thereunder), shall be tolled during the period of the continuance of any actual breach or violation thereof.\n4.2 Notices. Except when actual receipt is expressly required by the terms hereof, notice is considered given either (i) when\ndelivered in person, (ii) when sent by Federal Express or comparable overnight night mail service, or (iii) two (2) days after deposit in\nthe United States mail in a sealed envelope or container by either registered or certified mail with return receipt requested and postage\nprepaid, and addressed to the party or person to be notified at the address set forth on the signature page hereof. Either party may\nrequire, by notice given at any time or from time to time, subsequent notices to a different address; provided, however, that a P.O.\nBox shall not be considered to be an address for purposes of this Agreement. Notices given before actual receipt of notice of change\nshall not be invalidated by the change.\n4.3 Waiver, Modification and Interpretation. No provisions of this Agreement may be modified, waived or discharged unless\nsuch waiver, modification or discharge is agreed to in a writing signed by all the parties hereto, and, in the case of the Bank, such\nwaiver, modification or discharge has been authorized or approved by the Board of Directors of the Bank. Any waiver by any party\nhereto of any breach of any kind or character whatsoever by any other party shall not be construed as a continuing waiver of, or\nconsent to, any subsequent breach of this Agreement on the part of the other party or parties. The validity, interpretation, construction\nand performance of this Agreement shall be governed by the laws of the State of Illinois applicable to contracts made and to be\nperformed in Illinois, without giving effect to the conflict of law principles thereof.\n4.4 Headings. The headings used in this Agreement are for convenience only and are not part of its operative language. They shall\nnot be used to affect the construction of any provisions hereof.\n4.5 Severability. The provisions of this Agreement are severable and should any provision hereof be void, voidable or\nunenforceable under any applicable law, such void, voidable or\nunenforceable provision shall not affect or invalidate any other provision of this Agreement, which shall continue to govern the\nrelative rights and duties of the parties as though the void, voidable or unenforceable provision were not a part hereof. In addition, it\nis the intention and agreement of the parties that all of the terms and conditions hereof be enforced to the fullest extent permitted by\nlaw.\n4.6 Entire Agreement. This Agreement constitutes the entire understanding between the parties hereto with respect to the subject\nmatter hereof and supersedes all negotiations, representations, prior discussions and preliminary and other agreements between the\nparties hereto relating to the subject matter hereof.\n4.7 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, personal\nrepresentatives, successors and assigns.\nFIRST OAK BROOK BANCSHARES, INC.,\nEMPLOYEE:\nOAK BROOK BANK AND THEIR\nSUBSIDIARIES AND AFFILIATES\nBy:________________________________\n______________________________________\nDate:_______________________________\n______________________________________\nEmployee Name\nAddress:_______________________________\nCity, State & Zip Code:____________________\nDate:__________________________________\n(1) Restriction period is twelve months for Vice Presidents, 15 months for Senior Vice Presidents, 18 months for Executive Vice\nPresidents and 24 months for Senior Executive Vice Presidents.	Exhibit 10.16\nFIRST OAK BROOK BANC SHARES, INC.\nOAK BROOK BANK\nAgreement Regarding\nC onfidentiality, Non-Solicitation of C ustomers and Employees\nand Prohibited Conduct\nThis Agreement is made by and between the undersigned (”Employee”) and First Oak Brook Bancshares, Inc., Oak Brook Bank\nand/or a subsidiary or affiliate of either of them (each such entities, separately and collectively referred to herein as ”Bank”).\nAs a condition to and in consideration of Employee’s employment and/or continued employment by the Bank, and/or Employee' s\neligibility to receive and/or receipt of awards of bonus or incentive compensation under the First Oak Brook Bancshares, Inc.\nIncentive Compensation Plan and/or a similar or successor plan, or otherwise (such awards ”Incentive Awards”), the parties agree to\nthe following:\n1. CONFIDENTIAL INFORMATION\n1.1 Disclosure or Use. Employee understands and acknowledges, that by virtue of his or her employment with Bank, he or she\nwill learn or develop Confidential Information (as that term is defined herein). Employee further acknowledges that unauthorized\ndisclosure or use of such Confidential Information, other than in discharge of his or her duties, will cause the Bank irreparable harm.\nAccordingly, during the term of his or her employment and thereafter, Employee agrees not to use any Confidential Information\nexcept in furtherance of his or her duties for the Bank, nor to disclose any Confidential Information except to officers or other\nEmployees of the Bank when it is necessary, in the ordinary course of business, to do so. Upon termination of employment with the\nBank for any reason, Employee shall not, directly or indirectly, disclose, publish, communicate or use on his or her behalf or\nanother’ s behalf, any Confidential Information. Employee acknowledges that the Bank operates and competes in Illinois and other\njurisdictions, and that the Bank will be harmed by unauthorized disclosure or use of Confidential Information, regardless of where\nsuch disclosure or use occurs, and that therefore this confidentiality agreement is not limited to any single state, country or\njurisdiction.\n1.2 Confidential Information. For purposes of this Agreement, ”Confidential Information” shall mean trade secrets and other\nproprietary information concerning the products, processes or services of the Bank and information regarding customers and\nprospective customers of the Bank, which information (a) has not been made generally available to the public, and is useful or of\nvalue to the Bank's current or anticipated business activities or of those of any customer or prospective customer of the Bank; or\n(b) is known by Employee to be confidential, or has been identified to Employee as confidential, either orally or in writing, or is\nrequired by applicable law, rule or regulation to be maintained as confidential by the Bank including, but not limited to: computer\nprograms; research and other statistical data and analyses; marketing, organizational or other research and development, or business\nplans; personnel information, including the identity of other employees of the Bank, their responsibilities, competence, abilities, and\ncompensation; financial, accounting and similar records of the Bank and/or any fund or account managed by the Bank; current and\nprospective customer lists and information on clients and their employees; customer financial statements, investment objectives, the\nnature of their investment portfolios and contractual agreements with the Bank; information concerning planned or pending\ninvestment products, acquisitions or divestitures.\n1.3 Exceptions. Confidential Information shall not include information which: (a) is in or hereafter enters the public domain\nthrough no fault of Employee; (b) is obtained by Employee from a third party having the legal right to use and disclose the same; or\n(c) is in the possession of Employee prior to receipt from the Bank (as evidenced by Employee’s written records pre- dating the date\nof employment).\n2. BANK PROPERTY\nAll notes, reports, plans, published memoranda or other documents created, developed, generated or held by Employee during\nemployment, concerning or related to the Bank's business, and whether containing or relating to Confidential Information or not, and\nall tangible personal property of the Bank entrusted to Employee or in Employee' s direct or indirect possession or control, are the\nproperty of the Bank, and will be promptly delivered to the Bank and not thereafter used by Employee upon termination of\nEmployee' s employment for any reason whatsoever.\n3. BANK CUSTOMERS AND EMPLOYEES; NON-DISPARAGEMENT\nEmployee understands that Bank's name and its relationships with its customers and employees, including its interest in\nmaintaining a stable workforce, are extremely valuable and are the result of the expenditure of substantial time, effort and resources\nby the Bank. Therefore, during the period of Employee’s employment and during the period ending (1! from the last day of\nEmployee' s employment with the Bank, Employee agrees that he or she will not, directly or indirectly, on behalf of himself or herself\nor any other person, business or entity:\n(a) solicit or attempt to solicit for the purpose of providing to, or provide to, any protected customer or any prospective customer\nof the Bank services or products of any kind which are offered or provided by the Bank, or assist any person, business or entity to do\nso; or\n(b) induce, recruit, solicit or encourage any protected employee to leave the employ of the Bank, or induce, solicit, recruit, attempt\nto recruit any protected employee to accept employment with another person, business or entity, or employ or be employed with a\nprotected employee, or assist any other person, business or entity to do so; or\n(c) make, or cause to be made, any statement or disclosure that disparages the Bank, or any of its affiliates, or any of their\ndirectors, officers or employees, or assist any other person, business or entity to do so.\nFor purposes of the Agreement, (x) ”protected customer” means any business, entity or person which is or was a customer of the\nBank at any time during the period of Employee' s employment, other than any customer which had ceased to do business with the\nBank at least 12 months prior to Employee’s last day of employment, (y) ”prospective customer” means any business, entity or\nperson which was contacted by the Employee or known by the Employee to have been contacted by any officer of the Bank, for the\npurpose of soliciting or attempting to solicit to provide services or products to such business, entity, person, other than any such\nbusiness, entity or person with respect to whom the most recent such contact occurred at least six months prior to Employee' s last day\nof employment, and (z) ”protected employee" means any person who is or was an employee of the Bank during the period of\nEmployee' s employment, other than a former employee who has not been employed by the Bank for a period of at least six months\nand who terminated his or her employment with the Bank without any inducement or attempted inducement, recruiting, solicitation or\nencouragement by Employee or by any other employee of the Bank subject to a similar covenant.\n4.MISCELLANEOUS\n4.1 Acknowledgment and Remedies. In executing this Agreement, Employee does not rely on any inducements, promises or\nrepresentations of the Bank, or its officers or directors, other than the terms and conditions specifically set forth in this Agreement,\nand Employee acknowledges that he or she is an ”at-will” employee of the Bank and nothing set forth herein gives or shall be deemed\nto give the Employee any right to remain in the employ of the Bank or to receive Incentive Awards. Employee further acknowledges\nthat the statements herein are true and correct; that Employee has read and understands all of the terms of this Agreement; and that\nemployment or continued employment by the Bank and/or eligibility for and/or receipt of Incentive Awards constitutes adequate\nconsideration for Employee' 5 obligations hereunder and for the covenants set forth above. Employee acknowledges that failure to\ncomply with Section 1 through 3 will cause irreparable damage to the Bank. Therefore, Employee agrees that, in addition to any other\nremedies at law or in equity available to the Bank for Employee’s breach or threatened breach of this Agreement, or the forfeiture or\ncancellation of, or the repayment to the Bank of gains realized from, Incentive Awards in accordance with the terms thereof, the Bank\nis entitled to specific performance or injunctive relief against Employee to prevent such damage or breach. In addition, in the event of\na breach or a violation of any of the covenants or provisions of Sections 1, 2 or 3 of this Agreement, the Employee shall be obligated\nto repay to the Bank any amounts received as severance pay and shall forfeit all rights to any further payments from the Bank.\nIn the event of a breach or a violation by Employee of any of the covenants and provisions of Sections 1 through 3 of this\nAgreement, the running of the period of restriction on the solicitation of customers and employees set forth in Section 3 (but not of\nEmployee' 5 obligation thereunder), shall be tolled during the period of the continuance of any actual breach or violation thereof.\n4.2 Notices. Except when actual receipt is expressly required by the terms hereof, notice is considered given either (i) when\ndelivered in person, (ii) when sent by Federal Express or comparable overnight night mail service, or (iii) two (2) days after deposit in\nthe United States mail in a sealed envelope or container by either registered or certified mail with return receipt requested and postage\nprepaid, and addressed to the party or person to be notified at the address set forth on the signature page hereof. Either party may\nrequire, by notice given at any time or from time to time, subsequent notices to a different address; provided, however, that a PO.\nBox shall not be considered to be an address for purposes of this Agreement. Notices given before actual receipt of notice of change\nshall not be invalidated by the change.\n4.3 Waiverl Modification and Interpretation. No provisions of this Agreement may be modified, waived or discharged unless\nsuch waiver, modification or discharge is agreed to in a writing signed by all the parties hereto, and, in the case of the Bank, such\nwaiver, modification or discharge has been authorized or approved by the Board of Directors of the Bank. Any waiver by any party\nhereto of any breach of any kind or character whatsoever by any other party shall not be construed as a continuing waiver of, or\nconsent to, any subsequent breach of this Agreement on the part of the other party or parties. The validity, interpretation, construction\nand performance of this Agreement shall be governed by the laws of the State of Illinois applicable to contracts made and to be\nperformed in Illinois, without giving effect to the conflict of law principles thereof.\n4.4 Headings. The headings used in this Agreement are for convenience only and are not part of its operative language. They shall\nnot be used to affect the construction of any provisions hereof.\n4.5 Severahility. The provisions of this Agreement are severable and should any provision hereof be void, voidable or\nunenforceable under any applicable law, such void, voidable or\nunenforceable provision shall not affect or invalidate any other provision of this Agreement, which shall continue to govern the\nrelative rights and duties of the parties as though the void, voidable or unenforceable provision were not a part hereof. In addition, it\nis the intention and agreement of the parties that all of the terms and conditions hereof be enforced to the fullest extent permitted by\nlaw.\n4.6 Entire Agreement. This Agreement constitutes the entire understanding between the parties hereto with respect to the subject\nmatter hereof and supersedes all negotiations, representations, prior discussions and preliminary and other agreements between the\nparties hereto relating to the subject matter hereof.\n4.7 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, personal\nrepresentatives, successors and assigns.\nFIRST OAK BROOK BANCSHARES, INC ., EMPLOYEE:\nOAK BROOK BANK AND THEIR\nSUBSIDIARIES AND AFFILIATES\nBy:\n \n \nD ate:\n \n \nEmployee Name\nA ddress:\n \nCity, State & Zip Code:\nD ate:\n \n(1) Restriction period is twelve months for Vice Presidents, 15 months for Senior Vice Presidents, 18 months for Executive Vice\nPresidents and 24 months for Senior Executive Vice Presidents.	Exhibit 10.16\nFIRST OAK BROOK BANCSHARES, INC.\nOAK BROOK BANK\nAgreement Regarding\nConfidentiality, Non-Solicitation of Customers and Employees\nand Prohibited Conduct\nThis A greement is made by and between the undersigned ("Employee") and First Oak Brook Bancshares, Inc., Oak Brook Bank\nand/or a subsidiary or affiliate of either of them (each such entities, separately and collectively referred to herein as "Bank").\nAs a condition to and in consideration of Employee's employment and/or continued employment by the Bank, and/or Employee's\neligibility to receive and/or receipt of awards of bonus or incentive compensation under the First Oak Brook Bancshares, Inc.\nIncentive Compensation Plan and/or a similar or successor plan, or otherwise (such awards "Incentive wards"), the parties agree to\nthe following:\n1. CONFIDENTIAL INFORMATION\n1.1 Disclosure or Use. Employee understands and acknowledges, that by virtue of his or her employment with Bank he or she\nwill leam or develop Confidential Information (as that term is defined herein). Employee further acknowledges that unauthorized\ndisclosure or use of such Confidentia Information, other than in discharge of his or her duties, will cause the Bank irreparable harm.\nA ccordingly, during the term of his or her employment and thereafter, Employee agrees not to use any Confidential Information\nexcept in furtherance of his or her duties for the Bank, nor to disclose any Confidential Information except to officers or other\nEmployees of the Bank when it is necessary, in the ordinary course of business, to do so. Upon termination of employment with the\nBank for any reason, Employee shall not, directly or indirectly, disclose, publish, communicate or use on his or her behalf or\nanother's behalf, any Confidential Information. Employee acknowledges that the Bank operates and competes in Illinois and other\njurisdictions, and that the Bank will be harmed by unauthorized disclosure or use of Confidential Information, regardless of where\nsuch disclosure or use occurs, and that therefore this confidentiality agreement is not limited to any single state, country or\njurisdiction.\n1.2 Confidential Information. For purposes of this Agreement, "Confidential Information" shall mean trade secrets and other\nproprietary information concerning the products, processes or services of the Bank and information regarding customers and\nprospective customers of the Bank, which information (a) has not been made generally available to the public, and is useful or of\nvalue to the Bank's current or anticipated business activities or of those of any customer or prospective customer of the Bank; or\n(b) is known by Employee to be confidential, or has been identified to Employee as confidential, either orally or in writing, or is\nrequired by applicable law, rule or regulation to be maintained as confidential by the Bank including, but not limited to: computer\nprograms; research and other statistical data and analyses; marketing, organizational or other research and development, or business\nplans; personne information, including the identity of other employees of the Bank, their responsibilities, competence, abilities, and\ncompensation; financial, accounting and similar records of the Bank and/or any fund or account managed by the Bank; current and\nprospective customer lists and information on clients and their employees; customer financial statements, investment objectives, the\nnature of their investment portfolios and contractual agreements with the Bank; information concerning planned or pending\ninvestment products, acquisitions or divestitures.\n1.3 Exceptions. Confidential Information shall not include information which: (a) is in or hereafter enters the public domain\nthrough no fault of Employee; (b) is obtained by Employee from a third party having the legal right to use and disclose the same; or\n(c) is in the possession of Employee prior to receipt from the Bank (as evidenced by Employee's written records pre-dating the date\nof employment).\n2. BANK PROPERTY\nAll notes, reports, plans, published memoranda or other documents created, developed, generated or held by Employee during\nemployment, concerning or related to the Bank's business, and whether containing or relating to Confidential Information or not,\nand\nall tangible personal property of the Bank entrusted to Employee or in Employee's direct or indirect possession or control, are the\nproperty of the Bank and will be promptly delivered to the Bank and not thereafter used by Employee upon termination of\nEmployee's employment for any reason whatsoever.\n3. BANK CUSTOMERS AND EMPLOYEES; NON-DISPARAGEMENT\nEmployee understands that Bank's name and its relationships with its customers and employees, including its interest in\nmaintaining a stable workforce, are extremely valuable and are the result of the expenditure of substantial time, effort and resources\nby the Bank. Therefore, during the period of Employee's employment and during the period ending (1) from the last day\nof\nEmployee's employment with the Bank, Employee agrees that he or she will not, directly or indirectly, on behalf of himself or herself\nor any other person, business or entity:\n(a) solicit or attempt to solicit for the purpose of providing to, or provide to, any protected customer or any prospective customer\nof the Bank services or products of any kind which are offered or provided by the Bank, or assist any person, business or entity to do\nSO; or\n(b) induce, recruit, solicit or encourage any protected employee to leave the employ of the Bank, or induce, solicit, recruit, attempt\nto recruit any protected employee to accept employment with another person, business or entity, or employ or be employed with a\nprotected employee, or assist any other person, business or entity to do SO; or\n(c) make, or cause to be made, any statement or disclosure that disparages the Bank, or any of its affiliates, or any of their\ndirectors, officers or employees, or assist any other person, business or entity to do so.\nFor purposes of the A greement (x) "protected customer" means any business, entity or person which is or was a customer of the\nBank at any time during the period of Employee's employment, other than any customer which had ceased to do business with the\nBank at least 12 months prior to Employee's last day of employment, (y) "prospective customer" means any business, entity or\nperson which was contacted by the Employee or known by the Employee to have been contacted by any officer of the Bank, for the\npurpose of soliciting or attempting to solicit to provide services or products to such business, entity, person, other than any such\nbusiness, entity or person with respect to whom the most recent such contact occurred at least six months prior to Employee's last day\nof employment, and (z) "protected employee" means any person who is or was an employee of the Bank during the period of\nEmployee's employment other than a former employee who has not been employed by the Bank for a period of at least six months\nand who terminated his or her employment with the Bank without any inducement or attempted inducement, recruiting, solicitation or\nencouragement by Employee or by any other employee of the Bank subject to a similar covenant.\n4. MISCELLANEOUS\n4.1 Acknowledgment and Remedies. In executing this A greement, Employee does not rely on any inducements, promises or\nrepresentations of the Bank, or its officers or directors, other than the terms and conditions specifically set forth in this A greement,\nand Employee acknowledges that he or she is an "at-will" employee of the Bank and nothing set forth herein gives or shall be deemed\nto give the Employee any right to remain in the employ of the Bank or to receive Incentive wards. Employee further acknowledges\nthat the statements herein are true and correct; that Employee has read and understands all of the terms of this A greement; and that\nemployment or continued employment by the Bank and/or eligibility for and/or receipt of Incentive A wards constitutes adequate\nconsideration for Employee's obligations hereunder and for the covenants set forth above. Employee acknowledges that failure\nto\ncomply with Section 1 through 3 will cause irreparable damage to the Bank. Therefore, Employee agrees that, in addition to any other\nremedies at law or in equity available to the Bank for Employee's breach or threatened breach of this A greement, or the forfeiture or\ncancellation of, or the repayment to the Bank of gains realized from, Incentive A wards in accordance with the terms thereof, the Bank\nis entitled to specific performance or injunctive relief against Employee to prevent such damage or breach. In addition, in the event of\na breach or a violation of any of the covenants or provisions of Sections 1, 2 or 3 of this A greement, the Employee shall be obligated\nto repay to the Bank any amounts received as severance pay and shall forfeit all rights to any further payments from the Bank.\nIn the event of a breach or a violation by Employee of any of the covenants and provisions of Sections 1 through 3 of this\nAgreement, the running of the period of restriction on the solicitation of customers and employees set forth in Section 3 (but not of\nEmployee's obligation thereunder), shall be tolled during the period of the continuance of any actual breach or violation thereof.\n4.2 Notices. Except when actual receipt is expressly required by the terms hereof, notice is considered given either (i) when\ndelivered in person, (ii) when sent by Federal Express or comparable overnight night mail service, or (iii) two (2) days after deposit in\nthe United States mail in a sealed envelope or container by either registered or certified mail with return receipt requested and postage\nprepaid and addressed to the party or person to be notified at the address set forth on the signature page hereof. Either party may\nrequire, by notice given at any time or from time to time, subsequent notices to a different address; provided, however, that a P.O.\nBox shall not be considered to be an address for purposes of this Agreement. Notices given before actual receipt of notice of change\nshall not be invalidated by the change.\n4.3 Waiver, Modification and Interpretation No provisions of this greement may be modified, waived or discharged unless\nsuch waiver, modification or discharge is agreed to in a writing signed by all the parties hereto, and, in the case of the Bank, such\nwaiver, modification or discharge has been authorized or approved by the Board of Directors of the Bank. Any waiver by any party\nhereto of any breach of any kind or character whatsoever by any other party shall not be construed as a continuing waiver of, or\nconsent to, any subsequent breach of this greement on the part of the other party or parties. The validity, interpretation, construction\nand performance of this greement shall be governed by the laws of the State of Illinois applicable to contracts made and to be\nperformed in Illinois, without giving effect to the conflict of law principles thereof.\n4.4 Headings. The headings used in this A greement are for convenience only and are not part of its operative language. They shall\nnot be used to affect the construction of any provisions hereof.\n4.5 Severability The provisions of this A greement are severable and should any provision hereof be void, voidable or\nunenforceable under any applicable law, such void, voidable or\nunenforceable provision shall not affect or invalidate any other provision of this Agreement, which shall continue to govern the\nrelative rights and duties of the parties as though the void, voidable or unenforceable provision were not a part hereof. In addition, it\nis the intention and agreement of the parties that all of the terms and conditions hereof be enforced to the fullest extent permitted by\nlaw.\n4.6 Entire Agreement. This Agreement constitutes the entire understanding between the parties hereto with respect to the subject\nmatter hereof and supersedes all negotiations, representations, prior discussions and preliminary and other agreements between the\nparties hereto relating to the subject matter hereof.\n4.7 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, personal\nrepresentatives, successors and assigns.\nFIRST OAK BROOK BANCSHARES, INC.,\nEMPLOYEE:\nOAK BROOK BANK AND THEIR\nSUBSIDIARIES AND AFFILIATES\nBy:\nDate:\nEmployee Name\nA ddress:\nCity, State & Zip Code:\nDate:\n(1) Restriction period is twelve months for Vice Presidents, 15 months for Senior Vice Presidents, 18 months for Executive Vice\nPresidents and 24 months for Senior Executive Vice Presidents.	Exhibit 10.16\nFIRST OAK BROOK BANCSHARES, INC.\nOAK BROOK BANK\nAgreement Regarding\nConfidentiality, Non-Solicitation of Customers and Employees\nand Prohibited Conduct\nThis Agreement is made by and between the undersigned (“Employee”) and First Oak Brook Bancshares, Inc., Oak Brook Bank\nand/or a subsidiary or affiliate of either of them (each such entities, separately and collectively referred to herein as “Bank”).\nAs a condition to and in consideration of Employee’s employment and/or continued employment by the Bank, and/or Employee’s\neligibility to receive and/or receipt of awards of bonus or incentive compensation under the First Oak Brook Bancshares, Inc.\nIncentive Compensation Plan and/or a similar or successor plan, or otherwise (such awards “Incentive Awards”), the parties agree to\nthe following:\n1. CONFIDENTIAL INFORMATION\n1.1 Disclosure or Use. Employee understands and acknowledges, that by virtue of his or her employment with Bank, he or she\nwill learn or develop Confidential Information (as that term is defined herein). Employee further acknowledges that unauthorized\ndisclosure or use of such Confidential Information, other than in discharge of his or her duties, will cause the Bank irreparable harm.\nAccordingly, during the term of his or her employment and thereafter, Employee agrees not to use any Confidential Information\nexcept in furtherance of his or her duties for the Bank, nor to disclose any Confidential Information except to officers or other\nEmployees of the Bank when it is necessary, in the ordinary course of business, to do so. Upon termination of employment with the\nBank for any reason, Employee shall not, directly or indirectly, disclose, publish, communicate or use on his or her behalf or\nanother’s behalf, any Confidential Information. Employee acknowledges that the Bank operates and competes in Illinois and other\njurisdictions, and that the Bank will be harmed by unauthorized disclosure or use of Confidential Information, regardless of where\nsuch disclosure or use occurs, and that therefore this confidentiality agreement is not limited to any single state, country or\njurisdiction.\n1.2 Confidential Information. For purposes of this Agreement, “Confidential Information” shall mean trade secrets and other\nproprietary information concerning the products, processes or services of the Bank and information regarding customers and\nprospective customers of the Bank, which information (a) has not been made generally available to the public, and is useful or of\nvalue to the Bank’s current or anticipated business activities or of those of any customer or prospective customer of the Bank; or\n(b) is known by Employee to be confidential, or has been identified to Employee as confidential, either orally or in writing, or is\nrequired by applicable law, rule or regulation to be maintained as confidential by the Bank including, but not limited to: computer\nprograms; research and other statistical data and analyses; marketing, organizational or other research and development, or business\nplans; personnel information, including the identity of other employees of the Bank, their responsibilities, competence, abilities, and\ncompensation; financial, accounting and similar records of the Bank and/or any fund or account managed by the Bank; current and\nprospective customer lists and information on clients and their employees; customer financial statements, investment objectives, the\nnature of their investment portfolios and contractual agreements with the Bank; information concerning planned or pending\ninvestment products, acquisitions or divestitures.\n1.3 Exceptions. Confidential Information shall not include information which: (a) is in or hereafter enters the public domain\nthrough no fault of Employee; (b) is obtained by Employee from a third party having the legal right to use and disclose the same; or\n(c) is in the possession of Employee prior to receipt from the Bank (as evidenced by Employee’s written records pre-dating the date\nof employment).\n2. BANK PROPERTY\nAll notes, reports, plans, published memoranda or other documents created, developed, generated or held by Employee during\nemployment, concerning or related to the Bank’s business, and whether containing or relating to Confidential Information or not, and\nall tangible personal property of the Bank entrusted to Employee or in Employee’s direct or indirect possession or control, are the\nproperty of the Bank, and will be promptly delivered to the Bank and not thereafter used by Employee upon termination of\nEmployee’s employment for any reason whatsoever.\n3. BANK CUSTOMERS AND EMPLOYEES; NON-DISPARAGEMENT\nEmployee understands that Bank’s name and its relationships with its customers and employees, including its interest in\nmaintaining a stable workforce, are extremely valuable and are the result of the expenditure of substantial time, effort and resources\nby the Bank. Therefore, during the period of Employee’s employment and during the period ending (1) from the last day of\nEmployee’s employment with the Bank, Employee agrees that he or she will not, directly or indirectly, on behalf of himself or herself\nor any other person, business or entity:\n(a) solicit or attempt to solicit for the purpose of providing to, or provide to, any protected customer or any prospective customer\nof the Bank services or products of any kind which are offered or provided by the Bank, or assist any person, business or entity to do\nso; or\n(b) induce, recruit, solicit or encourage any protected employee to leave the employ of the Bank, or induce, solicit, recruit, attempt\nto recruit any protected employee to accept employment with another person, business or entity, or employ or be employed with a\nprotected employee, or assist any other person, business or entity to do so; or\n(c) make, or cause to be made, any statement or disclosure that disparages the Bank, or any of its affiliates, or any of their\ndirectors, officers or employees, or assist any other person, business or entity to do so.\nFor purposes of the Agreement, (x) “protected customer” means any business, entity or person which is or was a customer of the\nBank at any time during the period of Employee’s employment, other than any customer which had ceased to do business with the\nBank at least 12 months prior to Employee’s last day of employment, (y) “prospective customer” means any business, entity or\nperson which was contacted by the Employee or known by the Employee to have been contacted by any officer of the Bank, for the\npurpose of soliciting or attempting to solicit to provide services or products to such business, entity, person, other than any such\nbusiness, entity or person with respect to whom the most recent such contact occurred at least six months prior to Employee’s last day\nof employment, and (z) “protected employee” means any person who is or was an employee of the Bank during the period of\nEmployee’s employment, other than a former employee who has not been employed by the Bank for a period of at least six months\nand who terminated his or her employment with the Bank without any inducement or attempted inducement, recruiting, solicitation or\nencouragement by Employee or by any other employee of the Bank subject to a similar covenant.\n4. MISCELLANEOUS\n4.1 Acknowledgment and Remedies. In executing this Agreement, Employee does not rely on any inducements, promises or\nrepresentations of the Bank, or its officers or directors, other than the terms and conditions specifically set forth in this Agreement,\nand Employee acknowledges that he or she is an “at-will” employee of the Bank and nothing set forth herein gives or shall be deemed\nto give the Employee any right to remain in the employ of the Bank or to receive Incentive Awards. Employee further acknowledges\nthat the statements herein are true and correct; that Employee has read and understands all of the terms of this Agreement; and that\nemployment or continued employment by the Bank and/or eligibility for and/or receipt of Incentive Awards constitutes adequate\nconsideration for Employee’s obligations hereunder and for the covenants set forth above. Employee acknowledges that failure to\ncomply with Section 1 through 3 will cause irreparable damage to the Bank. Therefore, Employee agrees that, in addition to any other\nremedies at law or in equity available to the Bank for Employee’s breach or threatened breach of this Agreement, or the forfeiture or\ncancellation of, or the repayment to the Bank of gains realized from, Incentive Awards in accordance with the terms thereof, the Bank\nis entitled to specific performance or injunctive relief against Employee to prevent such damage or breach. In addition, in the event of\na breach or a violation of any of the covenants or provisions of Sections 1, 2 or 3 of this Agreement, the Employee shall be obligated\nto repay to the Bank any amounts received as severance pay and shall forfeit all rights to any further payments from the Bank.\nIn the event of a breach or a violation by Employee of any of the covenants and provisions of Sections 1 through 3 of this\nAgreement, the running of the period of restriction on the solicitation of customers and employees set forth in Section 3 (but not of\nEmployee’s obligation thereunder), shall be tolled during the period of the continuance of any actual breach or violation thereof.\n4.2 Notices. Except when actual receipt is expressly required by the terms hereof, notice is considered given either (i) when\ndelivered in person, (ii) when sent by Federal Express or comparable overnight night mail service, or (iii) two (2) days after deposit in\nthe United States mail in a sealed envelope or container by either registered or certified mail with return receipt requested and postage\nprepaid, and addressed to the party or person to be notified at the address set forth on the signature page hereof. Either party may\nrequire, by notice given at any time or from time to time, subsequent notices to a different address; provided, however, that a P.O.\nBox shall not be considered to be an address for purposes of this Agreement. Notices given before actual receipt of notice of change\nshall not be invalidated by the change.\n4.3 Waiver, Modification and Interpretation. No provisions of this Agreement may be modified, waived or discharged unless\nsuch waiver, modification or discharge is agreed to in a writing signed by all the parties hereto, and, in the case of the Bank, such\nwaiver, modification or discharge has been authorized or approved by the Board of Directors of the Bank. Any waiver by any party\nhereto of any breach of any kind or character whatsoever by any other party shall not be construed as a continuing waiver of, or\nconsent to, any subsequent breach of this Agreement on the part of the other party or parties. The validity, interpretation, construction\nand performance of this Agreement shall be governed by the laws of the State of Illinois applicable to contracts made and to be\nperformed in Illinois, without giving effect to the conflict of law principles thereof.\n4.4 Headings. The headings used in this Agreement are for convenience only and are not part of its operative language. They shall\nnot be used to affect the construction of any provisions hereof.\n4.5 Severability. The provisions of this Agreement are severable and should any provision hereof be void, voidable or\nunenforceable under any applicable law, such void, voidable or\nunenforceable provision shall not affect or invalidate any other provision of this Agreement, which shall continue to govern the\nrelative rights and duties of the parties as though the void, voidable or unenforceable provision were not a part hereof. In addition, it\nis the intention and agreement of the parties that all of the terms and conditions hereof be enforced to the fullest extent permitted by\nlaw.\n4.6 Entire Agreement. This Agreement constitutes the entire understanding between the parties hereto with respect to the subject\nmatter hereof and supersedes all negotiations, representations, prior discussions and preliminary and other agreements between the\nparties hereto relating to the subject matter hereof.\n4.7 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, personal\nrepresentatives, successors and assigns.\nFIRST OAK BROOK BANCSHARES, INC.,\nEMPLOYEE:\nOAK BROOK BANK AND THEIR\nSUBSIDIARIES AND AFFILIATES\nBy:________________________________\n______________________________________\nDate:_______________________________\n______________________________________\nEmployee Name\nAddress:_______________________________\nCity, State & Zip Code:____________________\nDate:__________________________________\n(1) Restriction period is twelve months for Vice Presidents, 15 months for Senior Vice Presidents, 18 months for Executive Vice\nPresidents and 24 months for Senior Executive Vice Presidents.
+1ebe90010883632839adf34be282271b.pdf	effective_date jurisdiction party	Exhibit 10.19\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (hereinafter the “Agreement”) is made and entered into on May 4, 2005 by and between the Affiliated Companies, which included but are not limited to, Silver Valley Capital, Sterling Mining Company,\nKimberly Gold Mines, Inc. Shoshone Silver Mining Company (hereinafter the “Company”), and Michael L. Mooney (hereinafter “Employee”).\nFOR GOOD CONSIDERATION, and in consideration of Employee’s employment or continued employment with the Company, Employee hereby agrees and acknowledges:\n1. That during the course of my employment with the Company, there may be disclosed to me certain trade secrets, confidential and/or proprietary business information of or regarding the Company; consisting of but not necessarily\nlimited to:\na. Technical information: Assays and assay results, resource estimates and/or projections. methods, processes, formulae, compositions. systems, techniques, inventions, machines, computer programs, research projects and experimental or\ndevelopmental work, relating to any project or organization.\nb. Business information: Business and development plans, investor and customer lists, pricing data, sources of supply, financial data, marketing, production, and merchandising systems or plans and operation plans, investor transactions,\nstock and/or warrant ownership.\n2. As used in this Agreement, the term “Confidential Information” means all Technical and/or Business information described in paragraphs 1(a) and (b) above, and any other trade secrets and/or confidential and/or proprietary business\ninformation of or regarding the Company (including information created or developed, in whole or in part, by Employee), which is not generally known about the Company or about its business. Confidential Information includes not only\nthe information itself, but also all documents containing such information, and any and all such information maintained in electronic or other form. For purposes of this Agreement, Confidential Information shall not include any\ninformation which Employee can establish was (i) was publicly known or (ii) becomes publicly known and made generally available after disclosure to Employee by the Company, through means other than Employee’s breach of his/her\nobligations under this Agreement.\n3. Employee agrees that, except in promoting the Company’s business, and as necessary in performing the duties of his/her employment with the Company, Employee shall not use in any manner, directly or indirectly, any Confidential\nInformation. Employee agrees that he/she will never use any Confidential Information for his/her own benefit or for the benefit of any person or entity other than the Company, and will not permit or allow any Confidential Information to\nbe used in competition with the Company. Employee acknowledges and agrees that all Confidential Information is the exclusive property of the Company, and Employee has no independent or individual claim to such Confidential\nInformation for any purpose. During his/her employment with the Company and at all times thereafter, Employee shall take all reasonable steps to prevent any unauthorized disclosure or use of any and all Confidential Information.\nEmployee further agrees to notify the Company immediately in the event that he/she becomes aware of any unauthorized use or disclosure of Confidential Information.\n4. Employee understands and agrees that he/she is being employed for an indefinite term, and is an “employee at will” whose employment with the Company can be terminated by either Employee or the Company at any time. for any\nreason, or for no reason at all, with or without advance notice.\n5. All questions with regard to the interpretation and enforcement of any provision of this Agreement shall be determined in accordance with the laws of the State of Idaho.\n6. I agree that upon the termination of my employment from Company:\na. I shall return to Company all documents and property of Company, even if not marked “confidential” or “proprietary,” including but not necessarily limited to: drawings, blueprints, reports, manuals, correspondence, customer and/or\ninvestor lists, computer programs, and all other materials and all copies thereof relating in any way to Company’s business, or in any way obtained by me during the course of employment. I further agree that I shall not retain copies. notes\nor abstracts of the foregoing.\nb. The Company may notify any future or prospective employer or third party of the existence of this Agreement. The Company shall be entitled to injunctive relief for any or threatened breach of this Agreement, in addition to all other\navailable remedies, including the recovery of monetary damages.\nc. This Agreement shall be binding upon me and my personal representatives and successors-in-interest, and shall inure to the benefit of Company, its successors and assigns.\nAuthorized Company Signature\nEmployee Signature\nPrinted Name\nPrinted Name\nDate\nDate\n2	Exhibit 10.19\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (hereinafter the "A greement") is made and entered into on May 4, 2005 by and between the Affiliated Companies, which included but are not limited to, SilverValley Capital, Sterling Mining Company,\nKimberly G old Mines, Inc. Shoshone Silver Mining Company (hereinafter the "Company"), and Michael L. Mooney (hereinafter "Employee").\nFOR GOOD CONSIDERATION, and in consideration of Employee's employment or continued employment with the Company, Employee hereby agrees and acknowledges:\n1. That during the course of my employment with the Company, there may be disclosed to me certain trade secrets, confidential and/or proprietary business information of or regarding the Company,- consisting of but not necessarily\nlimited in:\na. Technical information: Assays and assay results, resource estimates andlor projections. methods, processes, formulae, compositions. systems, techniques, inventions, machines, computer programs, research projects and experimental or\ndevelopmental work, relating to any project or organization.\nb. Business information: Business and development plans, investor and customer lists, pricing data, sources of supply, financial data, marketing, production, and merchandising systems or plans and operation plans, investor transactions,\nstock and/or warrant ownership.\n2. As used in this Agreement, the term ”Confidential Information" means all Technical and/or Business information described in paragraphs 1(a) and (b) above, and any other trade secrets and/or confidential andlor proprietary business\ninformation of or regarding the Company (including information created or developed, in whole or in part, by Employee), which is not generally known about the Company or about its business. Confidential Information includes not only\nthe information itself, but also all documents containing such information, and any and all such information maintained in electronic or other form. For purposes of this Agreement, Confidential Information shall not include any\ninformation which Employee can establish was (i) was publicly known or (ii) becomes publicly known and made generally available after disclosure to Employee by the Company, through means other than Employee’s breach of his/her\nobligations under this A greement.\n3. Employee agrees that, except in promoting the Company's business, and as necessary in performing the duties of his/her employment with the Company, Employee shall not use in any manner, directly or indirectly, any Confidential\nInformation. Employee agrees that he/she will never use any Confidential Information for his/her own benefit or for the benefit of any person or entity other than the Company, and will not permit or allow any Confidential Information to\nbe used in competition with the Company. Employee acknowledges and agrees that all Confidential Information is the exclusive property of the Company, and Employee has no independent or individual claim to such Confidential\nInformation for any purpose. During his/her employment with the Company and at all times thereafter, Employee shall take all reasonable steps to prevent any unauthorized disclosure or use of any and all Confidential Information.\nEmployee further agrees to notify the Company immediately in the event that he/she becomes aware of any unauthorized use or disclosure of Confidential Information.\n4. Employee undersmnds and agrees that he/she is being employed for an indefinite term, and is an "employee at will" whose employment with the Company can be terminated by either Employee or the Company at any time. for any\nreason, or for no reason at all, with or without advance notice.\n5. All questions with regard to the interpretation and enforcement of any provision of this Agreement shall be determined in accordance with the laws of the State of Idaho.\n6. I agree that upon the termination of my employment from Company:\na. I shall return to Company all documents and property of Company, even if not marked "confidential" or "proprietary," including but not necessarily limited to: drawings, blueprints, reports, manuals, correspondence, customer and/or\ninvestor lists, computer programs, and all other materials and all copies thereof relating in any way to Company' s business, or in any way obmined by me during the course of employment I further agree that I shall not retain copies. notes\nor abstracts of the foregoing\nb. The Company may notify any future or prospective employer or third party of the existence of this Agreement The Company shall be entitled to injunctive relief for any or threatened breach of this Agreement, in addition to all other\navailable remedies, including the recovery of monemry damages\nc. This Agreement shall be binding upon me and my personal represenmtives and successors-in-interest, and shall inure to the benefit of Company, its successors and assigns\nAuthorized Company Signafi re Employee Signafiire\nPrinted Name Printed Name\nD ate — D ate	Exhibit 10.19\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure A greement (hereinafter the Agreement") is made and entered into on May 4, 2005 by and between the Affiliated Companies, which included but are not limited to, Silver Valley Capital, Sterling Mining Company,\nKimberly Gold Mines, Inc Shoshone Silver Mining Company (hereinafter the "Company"), and Michael L. Mooney (hereinafter "Employee").\nFOR GOOD CONSIDERATION, and in consideration of Employee's employment or continued employment with the Company, Employee hereby agrees and acknowledges:\n1. That during the course of my employment with the Company, there may be disclosed to me certain trade secrets, confidential and/or proprietary business information of or regarding the Company; consisting of but not necessarily\nlimited to:\na. Technical information: Assays and assay results resource estimates and/or projections methods, processes, formulae, compositions. systems, techniques, inventions machines, computer programs, research projects and experimental or\ndevelopmental work, relating to any project or organization.\nb. Business information Business and development plans, investor and customer lists, pricing data, sources of supply, financial data, marketing production, and merchandising systems or plans and operation plans investor transactions,\nstock and/or warrant ownership.\n2. As used in this Agreement, the term "Confidential Information" means all Technical and/or Business information described in paragraphs 1(a) and (b) above, and any other trade secrets and/or confidential and/or proprietary business\ninformation of or regarding the Company (including information created or developed in whole or in part by Employee) which is not generally known about the Company or about its business. Confidential Information includes not only\nthe information itself, but also all documents containing such information, and any and all such information maintained in electronic or other form. For purposes of this Agreement, Confidential Information shall not include any\ninformation which Employee can establish was (i) was publicly known or (ii) becomes publicly known and made generally available after disclosure to Employee by the Company, through means other than Employee's breach of his/her\nobligations under this Agreement.\n3. Employee agrees that, except in promoting the Company's business, and as necessary in performing the duties of his/her employment with the Company Employee shall not use in any manner, directly or indirectly, any Confidential\nInformation Employee agrees that he/she wil never use any Confidential Information for his/her own benefit or for the benefit of any person or entity other than the Company, and will not permit or allow any Confidential Information to\nbe\nused in competition with the Company. Employee acknowledges and agrees that all Confidential Information is the exclusive property of the Company, and Employee has no independent or individual claim to such Confidential\nInformation for any purpose. During his/her employment with the Company and at all times thereafter, Employee shall take all reasonable steps to prevent any unauthorized disclosure or use of any and all Confidential Information.\nEmployee further agrees to notify the Company immediately in the event that he/she becomes aware of any unauthorized use or disclosure of Confidential Information.\n4. Employee understands and agrees that he/she is being employed for an indefinite term, and is an "employee at will" whose employment with the Company can be terminated by either Employee or the Company at any time. for any\nreason, or for no reason at all, with or without advance notice.\n5. All questions with regard to the interpretation and enforcement of any provision of this Agreement shall be determined in accordance with the laws of the State of Idaho.\n6. I agree that upon the termination of my employment from Company:\na. I shall return to Company all documents and property of Company, even if not marked "confidential" or "proprietary," including but not necessarily limited to: drawings, blueprints, reports, manuals, correspondence, customer and/or\ninvestor lists, computer programs, and all other materials and all copies thereof relating in any way to Company's business, or in any way obtained by me during the course of employment. I further agree that I shall not retain copies notes\nor abstracts of the foregoing.\nb. The Company may notify any future or prospective employer or third party of the existence of this Agreement The Company shall be entitled to injunctive relief for any or threatened breach of this Agreement, in addition to all other\navailable remedies, including the recovery of monetary damages.\nC. This A greement shall be binding upon me and my personal representatives and successors-in-interest, and shall inure to the benefit of Company, its successors and assigns.\nAuthorized Company Signature\nEmployee Signature\nPrinted Name\nPrinted Name\nDate\nDate\n2	Exhibit 10.19\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (hereinafter the “Agreement”) is made and entered into on May 4, 2005 by and between the Affiliated Companies, which included but are not limited to, Silver Valley Capital, Sterling Mining Company,\nKimberly Gold Mines, Inc. Shoshone Silver Mining Company (hereinafter the “Company”), and Michael L. Mooney (hereinafter “Employee”).\nFOR GOOD CONSIDERATION, and in consideration of Employee’s employment or continued employment with the Company, Employee hereby agrees and acknowledges:\n1. That during the course of my employment with the Company, there may be disclosed to me certain trade secrets, confidential and/or proprietary business information of or regarding the Company; consisting of but not necessarily\nlimited to:\na. Technical information: Assays and assay results, resource estimates and/or projections. methods, processes, formulae, compositions. systems, techniques, inventions, machines, computer programs, research projects and experimental or\ndevelopmental work, relating to any project or organization.\nb. Business information: Business and development plans, investor and customer lists, pricing data, sources of supply, financial data, marketing, production, and merchandising systems or plans and operation plans, investor transactions,\nstock and/or warrant ownership.\n2. As used in this Agreement, the term “Confidential Information” means all Technical and/or Business information described in paragraphs 1(a) and (b) above, and any other trade secrets and/or confidential and/or proprietary business\ninformation of or regarding the Company (including information created or developed, in whole or in part, by Employee), which is not generally known about the Company or about its business. Confidential Information includes not only\nthe information itself, but also all documents containing such information, and any and all such information maintained in electronic or other form. For purposes of this Agreement, Confidential Information shall not include any\ninformation which Employee can establish was (i) was publicly known or (ii) becomes publicly known and made generally available after disclosure to Employee by the Company, through means other than Employee’s breach of his/her\nobligations under this Agreement.\n3. Employee agrees that, except in promoting the Company’s business, and as necessary in performing the duties of his/her employment with the Company, Employee shall not use in any manner, directly or indirectly, any Confidential\nInformation. Employee agrees that he/she will never use any Confidential Information for his/her own benefit or for the benefit of any person or entity other than the Company, and will not permit or allow any Confidential Information to\nbe used in competition with the Company. Employee acknowledges and agrees that all Confidential Information is the exclusive property of the Company, and Employee has no independent or individual claim to such Confidential\nInformation for any purpose. During his/her employment with the Company and at all times thereafter, Employee shall take all reasonable steps to prevent any unauthorized disclosure or use of any and all Confidential Information.\nEmployee further agrees to notify the Company immediately in the event that he/she becomes aware of any unauthorized use or disclosure of Confidential Information.\n4. Employee understands and agrees that he/she is being employed for an indefinite term, and is an “employee at will” whose employment with the Company can be terminated by either Employee or the Company at any time. for any\nreason, or for no reason at all, with or without advance notice.\n5. All questions with regard to the interpretation and enforcement of any provision of this Agreement shall be determined in accordance with the laws of the State of Idaho.\n6. I agree that upon the termination of my employment from Company:\na. I shall return to Company all documents and property of Company, even if not marked “confidential” or “proprietary,” including but not necessarily limited to: drawings, blueprints, reports, manuals, correspondence, customer and/or\ninvestor lists, computer programs, and all other materials and all copies thereof relating in any way to Company’s business, or in any way obtained by me during the course of employment. I further agree that I shall not retain copies. notes\nor abstracts of the foregoing.\nb. The Company may notify any future or prospective employer or third party of the existence of this Agreement. The Company shall be entitled to injunctive relief for any or threatened breach of this Agreement, in addition to all other\navailable remedies, including the recovery of monetary damages.\nc. This Agreement shall be binding upon me and my personal representatives and successors-in-interest, and shall inure to the benefit of Company, its successors and assigns.\nAuthorized Company Signature\nEmployee Signature\nPrinted Name\nPrinted Name\nDate\nDate\n2
+1f41426812f1d8b1bcf30a6f37a12d51.pdf	effective_date jurisdiction party term	EX-99.(E).(14) 4 d525547dex99e14.htm NON DISCLOSURE AGREEMENT DATED AUG. 1, 2012\nExhibit (e)(14)\nLOGO\nNON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is entered into as of August 1, 2012, by and between AEROSONIC CORPORATION having its primary place of business at\n1212 North Hercules Avenue, Clearwater, Florida (hereinafter referred to as Aerosonic or DISCLOSING PARTY) and TransDigm Group\nIncorporated having its place of business at 1301 East 9th Street, Suite 3000, Cleveland, OH 44114 (hereinafter referred to as TRANSDIGM or\nRECEIVING PARTY).\n1. PURPOSE\nThe purpose of this Agreement is to set forth the rights and obligations of the parties with respect to the use, handling, protection, and\nsafeguarding of Proprietary Information which is disclosed by and between the parties.\n2. DEFINITION\nProprietary Information is defined as technical data and other information (including but not limited to descriptions, drawings, compositions,\nbusiness and financial information, technology development plans or strategies, and computer software) in whatever form and concerning any\ntopic, which is identified as proprietary by the disclosing party in accordance with the following guidelines:\nA. When disclosed in writing, Proprietary Information will be clearly and conspicuously marked by appropriate stamp or legend by the\ndisclosing party as Proprietary Information;\nB. When disclosed orally or visually, Proprietary Information will be immediately identified as Proprietary Information, and within thirty\n(30) days of disclosure, the disclosing party will summarize the oral or visual disclosure in written form, mark it as proprietary, and\ndelivery it to the receiving party;\nC. When disclosed in the form of magnetic recording or some other machine-readable form, Proprietary information will be identified as\nProprietary Information when transmitted, if possible, the container and form of the information will be clearly and conspicuously\nmarked by the disclosing party as proprietary. Within thirty (30) days after disclosure, the disclosing party will confirm the disclosure\nand specifically identify the Proprietary Information disclosed. Any physical embodiment of such information will be clearly and\nconspicuously marked as proprietary to the disclosing party.\n3. TERM\nThis Agreement shall terminate two years after the date first entered. Provided, however this Agreement may be terminated by either party at\nany time by giving thirty (30) days written notice of termination to the other party. Notwithstanding any such termination, the requirements\nspecified in Article 5 herein below shall continue to be binding upon the parties thereafter. All proprietary action, samples and models, if any,\nexchanged hereunder shall remain the property of the Disclosing Party and shall be returned to it or destroyed within thirty (30) days at the\nrequest and instruction of the Disclosing Party should such information no longer be required by the Receiving Party, or upon termination or\nexpiration of this Agreement together with all copies made thereof by the Receiving Party hereunder. Upon request, the\nAerosonic NDA September 2011\n1\nReceiving Party shall promptly send the Disclosing Party a destruction certificate. Notwithstanding the foregoing, the Receiving Party may\nretain one copy of an information obtained hereunder solely for use in connection with the determination or resolution of a dispute between the\nparties. Any such information retained by the Receiving Party shall remain subject to the terms of this Agreement.\n4. POINTS OF CONTACT\nThe primary points of contact with respect to the transmission and control of Proprietary Information disclosed under this Agreement are:\nFor: AEROSONIC CORPORATION\nFor: TRANSDIGM\nName: Mark Perkins\nName: Bemt Iversen II\nPhone: 727-461 -3000\nPhone: 864-843-5365\nEach Party may change its point of contact by written notice to the other Party.\n5. LIMITATIONS ON USE AND DISCLOSURE OF PROPRIETARY INFORMATION\nA. Proprietary Information disclosed by either party may be used by the Receiving Party solely in furtherance of projects or a transaction\nwith the Disclosing Party and shall not otherwise be used for the benefit of the recipient or others.\nB. Proprietary Information shall not be copied or reproduced by the Receiving Party without the express written permission of the\nDisclosing Party, except for such copies as may be reasonably required for accomplishment of the purpose stated above.\nC. Proprietary Information shall be disclosed only to employees and agents of the Receiving Party who have a “need to know” in\nconnection with the purpose stated above and have agreed to be bound by the terms hereof. The Receiving Party agrees that it will not\ndisclose Proprietary Information of the other Parties to third parties, other than its agents, unless and until expressly authorized in writing\nby the Disclosing Party.\nD. This Agreement shall not restrict disclosure or use of the Proprietary Information which:\n(1) was in the public domain at the time of disclosure or thereafter enters the public domain through no breach of this Agreement by\nthe Receiving Party, and only after such information enters the public domain; or\n(2) was, at the time of receipt, otherwise known to the Receiving Party without restrictions as to use or disclosure; or\n(3) becomes known to the Receiving Party from a source other than the Disclosing Party without breach of this Agreement by the\nReceiving Party; or\n(4) is developed independently by the Receiving Party without the use of Proprietary Information disclosed to it hereunder; or\n(5) is disclosed more than ten (10) years after it is first received hereunder.\n6. PROHIBITION ON INSIDER TRADING\nDuring the exchange of information covered by this Agreement, the Receiving Party and its employees and agents may have access to or learn\nof certain information which is material in nature with regard to the Disclosing Party’s financial performance or prospects, as well as the status\nof a potential transaction, which information is not publically known. The Receiving Party acknowledges, and will so advise its employees and\nagents, that acting on such information for fiduciary gain is prohibited by applicable law and regulations.\nAerosonic NDA September 2011\n2\n7. LIABILITY FOR INADVERTENT USE\nNeither party shall be liable for the inadvertent or accidental use or disclosure of information identified as proprietary, provided such use or\ndisclosure occurs despite the exercise of the same degree of care as that party normally takes to safeguard and preserve its own similar\nProprietary Information, provided such degree of care is no less than reasonable.\n8. WARRANTY\nNEITHER PARTY MAKES ANY WARRANTY, GUARANTEE, OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH\nRESPECT TO ANY OF THE PROPRIETARY INFORMATION DISCLOSED HEREUNDER. NEITHER PARTY SHALL BE LIABLE IN\nDAMAGES, OF WHATEVER KIND, AS A RESULT OF THE OTHER PARTY’S RELIANCE ON OR USE OF THE INFORMATION\nPROVIDED HEREUNDER.\n9. NO FORMAL BUSINESS OBLIGATIONS\nThis Agreement shall not constitute, create, give effect to or otherwise imply a joint venture, pooling arrangement, partnership, or formal\nbusiness organization of any kind, nor shall it constitute, create, give effect to, or otherwise imply an obligation or commitment on the part of\nany party to submit a proposal or perform a contract with any other party. Nothing herein shall be construed as providing for the sharing of\nprofits or losses arising out of the efforts of either or both parties. Neither party will be liable to the other for any of the costs associated with\nthe other’s efforts in connection with this Agreement.\n10. NO LICENSE GRANTED\nNo license or conveyance of any rights to either party under any discoveries, inventions, patents, trade secrets, copyrights, or other form of\nintellectual property is granted or implied by the exchange of Proprietary Information between the parties.\n11. APPLICABLE LAW\nThis agreement shall be governed by and interpreted solely in accordance with the laws of the State of Florida.\n12. UNITED STATES GOVERNMENT REGULATIONS\nThe parties and their employees shall not use or disclose any Proprietary Information or other information furnished hereunder in any manner\ncontrary to the laws and regulations of the United States of America, or any agency thereof, including but not limited to the Export\nAdministration Regulations of the U.S. Department of Commerce, the International Traffic in Arms Regulations of the U.S . Department of\nState, and the Industrial Security Manual for Safeguarding Classified Information of the Department of Defense.\n13. ASSIGNABILITY\nExcept for a sale or transfer of the business to which this Agreement relates, the rights of the Parties under this Agreement may not be assigned\nor transferred to any person, or entity without the express prior written consent of the other Party, which consent will not be unreasonably\nwithheld. Any purported assignment without express prior written consent will be void.\n14. ENTIRE AGREEMENT\nThis Agreement contains the entire understanding between the Parties relative to the protection of Proprietary Information to be exchanged\nbetween the, and supersedes all prior and collateral communications, reports, and understandings between the Parties. No change,\nmodification, alteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives\nAerosonic NDA September 2011\n3\nof the Parties. This Agreement shall apply in lieu of and notwithstanding any specific legend or statement associated with any Proprietary\nInformation exchanged, and the duties of the Parties shall be determined exclusively by the Agreement. If any portion of the Agreement is held\nto be invalid, such decision shall not affect the validity of the remaining portions.\nIN WITNESS whereof the parties have caused this Agreement to be duly executed by their duly authorized representatives on the day and year first\nabove written.\nAEROSONIC CORPORATION\nTRANSDIGM GROUP\nINCORPORATED\nLOGO\nAerosonic NDA September 2011\n4	EX-99.(E).(14) 4 d525547dex99e14.htm NON DISCLOSURE AGREEMENT DATED AUG. 1, 2012\nExhibit (e)(14)\n».LOGO\nNON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is entered into as of August 1, 2012, by and between AEROSONIC CORPORATION having its primary place of business at\n1212 North Hercules Avenue, Clearwater, Florida (hereinafter referred to as Aerosonic or DISCLOSING PARTY) and TransDigm Group\nIncorporated having its place of business at 1301 East 9th Street, Suite 3000, Cleveland, OH 44114 (hereinafter referred to as TRANSDIGM or\nRECEIVING PARTY).\n1. PURPOSE\nThe purpose of this Agreement is to set forth the rights and obligations of the parties with respect to the use, handling, protection, and\nsafeguarding of Proprietary Information which is disclosed by and between the parties.\n2. DEFINITION\nProprietary Information is defined as technical data and other information (including but not limited to descriptions, drawings, compositions,\nbusiness and financial information, technology development plans or strategies, and computer software) in whatever form and concerning any\ntopic, which is identified as proprietary by the disclosing party in accordance with the following guidelines:\nA.  When disclosed in writing, Proprietary Information will be clearly and conspicuously marked by appropriate stamp or legend by the\ndisclosing party as Proprietary Information;\nB.  When disclosed orally or visually, Proprietary Information will be immediately identified as Proprietary Information, and within thirty\n(30) days of disclosure, the disclosing party will summarize the oral or visual disclosure in written form, mark it as proprietary, and\ndelivery it to the receiving party;\nC.  When disclosed in the form of magnetic recording or some other machine-readable form, Proprietary information will be identified as\nProprietary Information when transmitted, if possible, the container and form of the information will be clearly and conspicuously\nmarked by the disclosing party as proprietary. Within thirty (30) days after disclosure, the disclosing party will confirm the disclosure\nand specifically identify the Proprietary Information disclosed. Any physical embodiment of such information will be clearly and\nconspicuously marked as proprietary to the disclosing party.\n3. TERM\nThis Agreement shall terminate two years after the date first entered. Provided, however this Agreement may be terminated by either party at\nany time by giving thirty (30) days written notice of termination to the other party. Notwithstanding any such termination, the requirements\nspecified in Article 5 herein below shall continue to be binding upon the parties thereafter. All proprietary action, samples and models, if any,\nexchanged hereunder shall remain the property of the Disclosing Party and shall be returned to it or destroyed within thirty (30) days at the\nrequest and instruction of the Disclosing Party should such information no longer be required by the Receiving Party, or upon termination or\nexpiration of this Agreement together with all copies made thereof by the Receiving Party hereunder. Upon request, the\nAerosonic NDA September 2011 1\nReceiving Party shall promptly send the Disclosing Party a destruction certificate. Notwithstanding the foregoing, the Receiving Party may\nretain one copy of an information obtained hereunder solely for use in connection with the determination or resolution of a dispute between the\nparties. Any such information retained by the Receiving Party shall remain subject to the terms of this Agreement.\n4.  POINTS OF CONTACT\nThe primary points of contact with respect to the transmission and control of Proprietary Information disclosed under this Agreement are:\nFor: AEROSONIC CORPORATION For: TRANSDIGM\nName: Mark Perkins Name: Bemt Iversen 11\nPhone: 727-461 -3000 Phone: 864-843-5365\nEach Party may change its point of contact by written notice to the other Party.\n5. LIMITATIONS ON USE AND DISCT.OSURE OF PROPRIETARY INFORMATION\nA. Proprietary Information disclosed by either party may be used by the Receiving Party solely in furtherance of projects or a transaction\nwith the Disclosing Party and shall not otherwise be used for the benefit of the recipient or others.\nB.  Proprietary Information shall not be copied or reproduced by the Receiving Party without the express written permission of the\nDisclosing Party, except for such copies as may be reasonably required for accomplishment of the purpose stated above.\nC.  Proprietary Information shall be disclosed only to employees and agents of the Receiving Party who have a “need to know” in\nconnection with the purpose stated above and have agreed to be bound by the terms hereof. The Receiving Party agrees that it will not\ndisclose Proprietary Information of the other Parties to third parties, other than its agents, unless and until expressly authorized in writing\nby the Disclosing Party.\nD. This Agreement shall not restrict disclosure or use of the Proprietary Information which:\n(1)  was in the public domain at the time of disclosure or thereafter enters the public domain through no breach of this Agreement by\nthe Receiving Party, and only after such information enters the public domain; or\n(2)  was, at the time of receipt, otherwise known to the Receiving Party without restrictions as to use or disclosure; or\n(3)  becomes known to the Receiving Party from a source other than the Disclosing Party without breach of this Agreement by the\nReceiving Party; or\n(4)  is developed independently by the Receiving Party without the use of Proprietary Information disclosed to it hereunder; or\n(5) is disclosed more than ten (10) years after it is first received hereunder.\n6. PROHIBITION ON INSIDER TRADING\nDuring the exchange of information covered by this Agreement, the Receiving Party and its employees and agents may have access to or learn\nof certain information which is material in nature with regard to the Disclosing Party’s financial performance or prospects, as well as the status\nof a potential transaction, which information is not publically known. The Receiving Party acknowledges, and will so advise its employees and\nagents, that acting on such information for fiduciary gain is prohibited by applicable law and regulations.\nAerosonic NDA September 2011 2\n10. 11. 12. 13. 14. LIABILITY FOR INADVERTENT USE\nNeither party shall be liable for the inadvertent or accidental use or disclosure of information identified as proprietary, provided such use or\ndisclosure occurs despite the exercise of the same degree of care as that party normally takes to safeguard and preserve its own similar\nProprietary Information, provided such degree of care is no less than reasonable.\nWARRANTY\nNEITHER PARTY MAKES ANY WARRANTY, GUARANTEE, OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH\nRESPECT TO ANY OF THE PROPRIETARY INFORMATION DISCLOSED HEREUNDER. NEITHER PARTY SHALL BE LIABLE IN\nDAMAGES, OF WHATEVER KIND, AS A RESULT OF THE OTHER PARTY’S RELIANCE ON OR USE OF THE INFORMATION\nPROVIDED HEREUNDER.\nNO FORMAL BUSINESS OBLIGATIONS\nThis Agreement shall not constitute, create, give effect to or otherwise imply a joint venture, pooling arrangement, partnership, or formal\nbusiness organization of any kind, nor shall it constitute, create, give effect to, or otherwise imply an obligation or commitment on the part of\nany party to submit a proposal or perform a contract with any other party. Nothing herein shall be construed as providing for the sharing of\nprofits or losses arising out of the efforts of either or both parties. Neither party will be liable to the other for any of the costs associated with\nthe other’s efforts in connection with this Agreement.\nNO LICENSE GRANTED\nNo license or conveyance of any rights to either party under any discoveries, inventions, patents, trade secrets, copyrights, or other form of\nintellectual property is granted or implied by the exchange of Proprietary Information between the parties.\nAPPLICABLE LAW\nThis agreement shall be governed by and interpreted solely in accordance with the laws of the State of Florida.\nUNITED STATES GOVERNMENT REGULATIONS\nThe parties and their employees shall not use or disclose any Proprietary Information or other information furnished hereunder in any manner\ncontrary to the laws and regulations of the United States of America, or any agency thereof, including but not limited to the Export\nAdministration Regulations of the U.S. Department of Commerce, the International Traffic in Arms Regulations of the U.S. Department of\nState, and the Industrial Security Manual for Safeguarding Classified Information of the Department of Defense.\nASSIGNABILITY\nExcept for a sale or transfer of the business to which this Agreement relates, the rights of the Parties under this Agreement may not be assigned\nor transferred to any person, or entity without the express prior written consent of the other Party, which consent will not be unreasonably\nwithheld. Any purported assignment without express prior written consent will be void.\nENTIRE AGREEMENT\nThis Agreement contains the entire understanding between the Parties relative to the protection of Proprietary Information to be exchanged\nbetween the, and supersedes all prior and collateral communications, reports, and understandings between the Parties. No change,\nmodification, alteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives\nAerosonic NDA September 2011 3\fof the Parties. This Agreement shall apply in lieu of and notwithstanding any specific legend or statement associated with any Proprietary\nInformation exchanged, and the duties of the Parties shall be determined exclusively by the Agreement. If any portion of the Agreement is held\nto be invalid, such decision shall not affect the validity of the remaining portions.\nIN WITNESS whereof the parties have caused this Agreement to be duly executed by their duly authorized representatives on the day and year first\nabove written.\nAEROSONIC CORPORATION TRANSDIGM GROUP\nINCORPORATED\n».LOGO\nAerosonic NDA September 2011 4	EX-99.(E).(14) 4 d525547dex99e14.htm NON DISCLOSURE AGREEMENT DATED AUG. 1, 2012\nExhibit (e)(14)\nLOGO\nNON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is entered into as of August 1, 2012, by and between AEROSONIC CORPORATION having its primary place of business at\n1212 North Hercules Avenue, Clearwater, Florida (hereinafter referred to as Aerosonic or DISCLOSING PARTY) and TransDigm Group\nIncorporated having its place of business at 1301 East 9th Street, Suite 3000, Cleveland, OH 44114 (hereinafter referred to as TRANSDIGM\nor\nRECEIVING PARTY).\n1. PURPOSE\nThe purpose of this Agreement is to set forth the rights and obligations of the parties with respect to the use, handling, protection, and\nsafeguarding of Proprietary Information which is disclosed by and between the parties.\n2. DEFINITION\nProprietary Information is defined as technical data and other information (including but not limited to descriptions, drawings, compositions,\nbusiness and financial information, technology development plans or strategies, and computer software) in whatever form and concerning any\ntopic, which is identified as proprietary by the disclosing party in accordance with the following guidelines:\nA.\nWhen disclosed in writing, Proprietary Information will be clearly and conspicuously marked by appropriate stamp or legend by the\ndisclosing party as Proprietary Information;\nB.\nWhen disclosed orally or visually, Proprietary Information will be immediately identified as Proprietary Information, and within thirty\n(30) days of disclosure, the disclosing party will summarize the oral or visual disclosure in written form, mark it as proprietary, and\ndelivery it to the receiving party;\nC.\nWhen disclosed in the form of magnetic recording or some other machine-readable form, Proprietary information will be identified as\nProprietary Information when transmitted, if possible, the container and form of the information will be clearly and conspicuously\nmarked by the disclosing party as proprietary. Within thirty (30) days after disclosure, the disclosing party will confirm the disclosure\nand specifically identify the Proprietary Information disclosed. Any physical embodiment of such information will be clearly and\nconspicuously marked as proprietary to the disclosing party.\n3.\nTERM\nThis Agreement shall terminate two years after the date first entered. Provided, however this Agreement may be terminated by either party at\nany time by giving thirty (30) days written notice of termination to the other party. Notwithstanding any such termination, the requirements\nspecified in Article 5 herein below shall continue to be binding upon the parties thereafter. All proprietary action, samples and models, if any,\nexchanged hereunder shall remain the property of the Disclosing Party and shall be returned to it or destroyed within thirty (30) days at the\nrequest and instruction of the Disclosing Party should such information no longer be required by the Receiving Party, or upon termination or\nexpiration of this Agreement together with all copies made thereof by the Receiving Party hereunder. Upon request, the\nAerosonic NDA September 2011\n1\nReceiving Party shall promptly send the Disclosing Party a destruction certificate. Notwithstanding the foregoing, the Receiving Party may\nretain one copy of an information obtained hereunder solely for use in connection with the determination or resolution of a dispute between the\nparties. Any such information retained by the Receiving Party shall remain subject to the terms of this Agreement.\n4.\nPOINTS OF CONTACT\nThe primary points of contact with respect to the transmission and control of Proprietary Information disclosed under this Agreement are:\nFor: AEROSONIC CORPORATION\nFor: TRANSDIGM\nName: Mark Perkins\nName: Bemt Iversen II\nPhone: 727-461 -3000\nPhone: 864-843-5365\nEach Party may change its point of contact by written notice to the other Party.\n5.\nLIMITATIONS ON USE AND DISCLOSURE OF PROPRIETARY INFORMATION\nA.\nProprietary Information disclosed by either party may be used by the Receiving Party solely in furtherance of projects or a transaction\nwith the Disclosing Party and shall not otherwise be used for the benefit of the recipient or others.\nB.\nProprietary Information shall not be copied or reproduced by the Receiving Party without the express written permission of the\nDisclosing Party, except for such copies as may be reasonably required for accomplishment of the purpose stated above.\nC.\nProprietary Information shall be disclosed only to employees and agents of the Receiving Party who have a "need to know" in\nconnection with the purpose stated above and have agreed to be bound by the terms hereof. The Receiving Party agrees that it will not\ndisclose Proprietary Information of the other Parties to third parties, other than its agents, unless and until expressly authorized in writing\nby the Disclosing Party.\nD.\nThis Agreement shall not restrict disclosure or use of the Proprietary Information which:\n(1)\nwas in the public domain at the time of disclosure or thereafter enters the public domain through no breach of this Agreement by\nthe Receiving Party, and only after such information enters the public domain; or\n(2)\nwas, at the time of receipt, otherwise known to the Receiving Party without restrictions as to use or disclosure; or\n(3)\nbecomes known to the Receiving Party from a source other than the Disclosing Party without breach of this Agreement by the\nReceiving Party; or\n(4)\nis developed independently by the Receiving Party without the use of Proprietary Information disclosed to it hereunder; or\n(5)\nis disclosed more than ten (10) years after it is first received hereunder.\n6.\nPROHIBITION ON INSIDER TRADING\nDuring the exchange of information covered by this Agreement, the Receiving Party and its employees and agents may have access to or learn\nof certain information which is material in nature with regard to the Disclosing Party's financial performance or prospects, as well as the status\nof a potential transaction, which information is not publically known. The Receiving Party acknowledges, and will so advise its employees and\nagents, that acting on such information for fiduciary gain is prohibited by applicable law and regulations.\nAerosonic NDA September 2011\n2\n7.\nLIABILITY FOR INADVERTENT USE\nNeither party shall be liable for the inadvertent or accidental use or disclosure of information identified as proprietary, provided such use or\ndisclosure occurs despite the exercise of the same degree of care as that party normally takes to safeguard and preserve its own similar\nProprietary Information, provided such degree of care is no less than reasonable.\n8. WARRANTY\nNEITHER PARTY MAKES ANY WARRANTY, GUARANTEE, OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH\nRESPECT TO ANY OF THE PROPRIETARY INFORMATION DISCLOSED HEREUNDER. NEITHER PARTY SHALL BE LIABLE IN\nDAMAGES, OF WHATEVER KIND, AS A RESULT OF THE OTHER PARTY'S RELIANCE ON OR USE OF THE INFORMATION\nPROVIDED HEREUNDER.\n9.\nNO FORMAL BUSINESS OBLIGATIONS\nThis Agreement shall not constitute, create, give effect to or otherwise imply a joint venture, pooling arrangement, partnership, or formal\nbusiness organization of any kind, nor shall it constitute, create, give effect to, or otherwise imply an obligation or commitment on the part of\nany party to submit a proposal or perform a contract with any other party. Nothing herein shall be construed as providing for the sharing of\nprofits or losses arising out of the efforts of either or both parties. Neither party will be liable to the other for any of the costs associated with\nthe other's efforts in connection with this Agreement.\n10. NO LICENSE GRANTED\nNo license or conveyance of any rights to either party under any discoveries, inventions, patents, trade secrets, copyrights, or other form of\nintellectual property is granted or implied by the exchange of Proprietary Information between the parties.\n11. APPLICABLE LAW\nThis agreement shall be governed by and interpreted solely in accordance with the laws of the State of Florida.\n12.\nUNITED STATES GOVERNMENT REGULATIONS\nThe parties and their employees shall not use or disclose any Proprietary Information or other information furnished hereunder in any manner\ncontrary to the laws and regulations of the United States of America, or any agency thereof, including but not limited to the Export\nAdministration Regulations of the U.S. Department of Commerce, the International Traffic in Arms Regulations of the U.S. Department of\nState, and the Industrial Security Manual for Safeguarding Classified Information of the Department of Defense.\n13. ASSIGNABILITY\nExcept for a sale or transfer of the business to which this Agreement relates, the rights of the Parties under this Agreement may not be assigned\nor transferred to any person, or entity without the express prior written consent of the other Party, which consent will not be unreasonably\nwithheld. Any purported assignment without express prior written consent will be void.\n14. ENTIRE AGREEMENT\nThis Agreement contains the entire understanding between the Parties relative to the protection of Proprietary Information to be exchanged\nbetween the, and supersedes all prior and collateral communications, reports, and understandings between the Parties. No change,\nmodification, alteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives\nAerosonic NDA September 2011\n3\nof the Parties. This Agreement shall apply in lieu of and notwithstanding any specific legend or statement associated with any Proprietary\nInformation exchanged, and the duties of the Parties shall be determined exclusively by the Agreement. If any portion of the Agreement is held\nto be invalid, such decision shall not affect the validity of the remaining portions.\nIN WITNESS whereof the parties have caused this Agreement to be duly executed by their duly authorized representatives on the day and year first\nabove written\nAEROSONIC CORPORATION\nTRANSDIGM GROUP\nINCORPORATED\nLOGO\nAerosonic NDA September 2011\n4	EX-99.(E).(14) 4 d525547dex99e14.htm NON DISCLOSURE AGREEMENT DATED AUG. 1, 2012\nExhibit (e)(14)\nLOGO\nNON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT is entered into as of August 1, 2012, by and between AEROSONIC CORPORATION having its primary place of business at\n1212 North Hercules Avenue, Clearwater, Florida (hereinafter referred to as Aerosonic or DISCLOSING PARTY) and TransDigm Group\nIncorporated having its place of business at 1301 East 9th Street, Suite 3000, Cleveland, OH 44114 (hereinafter referred to as TRANSDIGM or\nRECEIVING PARTY).\n1. PURPOSE\nThe purpose of this Agreement is to set forth the rights and obligations of the parties with respect to the use, handling, protection, and\nsafeguarding of Proprietary Information which is disclosed by and between the parties.\n2. DEFINITION\nProprietary Information is defined as technical data and other information (including but not limited to descriptions, drawings, compositions,\nbusiness and financial information, technology development plans or strategies, and computer software) in whatever form and concerning any\ntopic, which is identified as proprietary by the disclosing party in accordance with the following guidelines:\nA. When disclosed in writing, Proprietary Information will be clearly and conspicuously marked by appropriate stamp or legend by the\ndisclosing party as Proprietary Information;\nB. When disclosed orally or visually, Proprietary Information will be immediately identified as Proprietary Information, and within thirty\n(30) days of disclosure, the disclosing party will summarize the oral or visual disclosure in written form, mark it as proprietary, and\ndelivery it to the receiving party;\nC. When disclosed in the form of magnetic recording or some other machine-readable form, Proprietary information will be identified as\nProprietary Information when transmitted, if possible, the container and form of the information will be clearly and conspicuously\nmarked by the disclosing party as proprietary. Within thirty (30) days after disclosure, the disclosing party will confirm the disclosure\nand specifically identify the Proprietary Information disclosed. Any physical embodiment of such information will be clearly and\nconspicuously marked as proprietary to the disclosing party.\n3. TERM\nThis Agreement shall terminate two years after the date first entered. Provided, however this Agreement may be terminated by either party at\nany time by giving thirty (30) days written notice of termination to the other party. Notwithstanding any such termination, the requirements\nspecified in Article 5 herein below shall continue to be binding upon the parties thereafter. All proprietary action, samples and models, if any,\nexchanged hereunder shall remain the property of the Disclosing Party and shall be returned to it or destroyed within thirty (30) days at the\nrequest and instruction of the Disclosing Party should such information no longer be required by the Receiving Party, or upon termination or\nexpiration of this Agreement together with all copies made thereof by the Receiving Party hereunder. Upon request, the\nAerosonic NDA September 2011\n1\nReceiving Party shall promptly send the Disclosing Party a destruction certificate. Notwithstanding the foregoing, the Receiving Party may\nretain one copy of an information obtained hereunder solely for use in connection with the determination or resolution of a dispute between the\nparties. Any such information retained by the Receiving Party shall remain subject to the terms of this Agreement.\n4. POINTS OF CONTACT\nThe primary points of contact with respect to the transmission and control of Proprietary Information disclosed under this Agreement are:\nFor: AEROSONIC CORPORATION\nFor: TRANSDIGM\nName: Mark Perkins\nName: Bemt Iversen II\nPhone: 727-461 -3000\nPhone: 864-843-5365\nEach Party may change its point of contact by written notice to the other Party.\n5. LIMITATIONS ON USE AND DISCLOSURE OF PROPRIETARY INFORMATION\nA. Proprietary Information disclosed by either party may be used by the Receiving Party solely in furtherance of projects or a transaction\nwith the Disclosing Party and shall not otherwise be used for the benefit of the recipient or others.\nB. Proprietary Information shall not be copied or reproduced by the Receiving Party without the express written permission of the\nDisclosing Party, except for such copies as may be reasonably required for accomplishment of the purpose stated above.\nC. Proprietary Information shall be disclosed only to employees and agents of the Receiving Party who have a “need to know” in\nconnection with the purpose stated above and have agreed to be bound by the terms hereof. The Receiving Party agrees that it will not\ndisclose Proprietary Information of the other Parties to third parties, other than its agents, unless and until expressly authorized in writing\nby the Disclosing Party.\nD. This Agreement shall not restrict disclosure or use of the Proprietary Information which:\n(1) was in the public domain at the time of disclosure or thereafter enters the public domain through no breach of this Agreement by\nthe Receiving Party, and only after such information enters the public domain; or\n(2) was, at the time of receipt, otherwise known to the Receiving Party without restrictions as to use or disclosure; or\n(3) becomes known to the Receiving Party from a source other than the Disclosing Party without breach of this Agreement by the\nReceiving Party; or\n(4) is developed independently by the Receiving Party without the use of Proprietary Information disclosed to it hereunder; or\n(5) is disclosed more than ten (10) years after it is first received hereunder.\n6. PROHIBITION ON INSIDER TRADING\nDuring the exchange of information covered by this Agreement, the Receiving Party and its employees and agents may have access to or learn\nof certain information which is material in nature with regard to the Disclosing Party’s financial performance or prospects, as well as the status\nof a potential transaction, which information is not publically known. The Receiving Party acknowledges, and will so advise its employees and\nagents, that acting on such information for fiduciary gain is prohibited by applicable law and regulations.\nAerosonic NDA September 2011\n2\n7. LIABILITY FOR INADVERTENT USE\nNeither party shall be liable for the inadvertent or accidental use or disclosure of information identified as proprietary, provided such use or\ndisclosure occurs despite the exercise of the same degree of care as that party normally takes to safeguard and preserve its own similar\nProprietary Information, provided such degree of care is no less than reasonable.\n8. WARRANTY\nNEITHER PARTY MAKES ANY WARRANTY, GUARANTEE, OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH\nRESPECT TO ANY OF THE PROPRIETARY INFORMATION DISCLOSED HEREUNDER. NEITHER PARTY SHALL BE LIABLE IN\nDAMAGES, OF WHATEVER KIND, AS A RESULT OF THE OTHER PARTY’S RELIANCE ON OR USE OF THE INFORMATION\nPROVIDED HEREUNDER.\n9. NO FORMAL BUSINESS OBLIGATIONS\nThis Agreement shall not constitute, create, give effect to or otherwise imply a joint venture, pooling arrangement, partnership, or formal\nbusiness organization of any kind, nor shall it constitute, create, give effect to, or otherwise imply an obligation or commitment on the part of\nany party to submit a proposal or perform a contract with any other party. Nothing herein shall be construed as providing for the sharing of\nprofits or losses arising out of the efforts of either or both parties. Neither party will be liable to the other for any of the costs associated with\nthe other’s efforts in connection with this Agreement.\n10. NO LICENSE GRANTED\nNo license or conveyance of any rights to either party under any discoveries, inventions, patents, trade secrets, copyrights, or other form of\nintellectual property is granted or implied by the exchange of Proprietary Information between the parties.\n11. APPLICABLE LAW\nThis agreement shall be governed by and interpreted solely in accordance with the laws of the State of Florida.\n12. UNITED STATES GOVERNMENT REGULATIONS\nThe parties and their employees shall not use or disclose any Proprietary Information or other information furnished hereunder in any manner\ncontrary to the laws and regulations of the United States of America, or any agency thereof, including but not limited to the Export\nAdministration Regulations of the U.S. Department of Commerce, the International Traffic in Arms Regulations of the U.S . Department of\nState, and the Industrial Security Manual for Safeguarding Classified Information of the Department of Defense.\n13. ASSIGNABILITY\nExcept for a sale or transfer of the business to which this Agreement relates, the rights of the Parties under this Agreement may not be assigned\nor transferred to any person, or entity without the express prior written consent of the other Party, which consent will not be unreasonably\nwithheld. Any purported assignment without express prior written consent will be void.\n14. ENTIRE AGREEMENT\nThis Agreement contains the entire understanding between the Parties relative to the protection of Proprietary Information to be exchanged\nbetween the, and supersedes all prior and collateral communications, reports, and understandings between the Parties. No change,\nmodification, alteration, or addition to any provision hereof shall be binding unless in writing and signed by authorized representatives\nAerosonic NDA September 2011\n3\nof the Parties. This Agreement shall apply in lieu of and notwithstanding any specific legend or statement associated with any Proprietary\nInformation exchanged, and the duties of the Parties shall be determined exclusively by the Agreement. If any portion of the Agreement is held\nto be invalid, such decision shall not affect the validity of the remaining portions.\nIN WITNESS whereof the parties have caused this Agreement to be duly executed by their duly authorized representatives on the day and year first\nabove written.\nAEROSONIC CORPORATION\nTRANSDIGM GROUP\nINCORPORATED\nLOGO\nAerosonic NDA September 2011\n4
+21fe1db5dd403579a003316a848581d5.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 12 d26631_ex99-d3.htm\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated as of July 22, 2008, and is made by and between North American Galvanizing\n& Coating, Inc. (“North American”) and AZZ incorporated (“AZZ”). North American and AZZ are sometimes herein collectively referred to as the\n“Parties” and each, a “Party”. In its capacity as a Party receiving Confidential Information, as that term is hereinafter defined, a Party may be\nreferred to herein as a “Receiving Party”; in its capacity as a Party disclosing Confidential Information, a Party may be referred to herein as a\n“Disclosing Party”.\n1. Confidential Information, Representatives. The Parties are considering entering into a possible transaction (the “Transaction”), and\nin order to assist the other Party in evaluating the possible Transaction, each Party is prepared to make available to the other Party certain\nconfidential, non-public or proprietary information concerning its and/or its affiliates’ and/or subsidiaries’ businesses, plans, operations and assets\n(any and all such information provided to a Receiving Party by or on behalf a Disclosing Party, its affiliates or subsidiaries regardless of the manner\nin which such is provided, together with all notes, summaries, analysis, compilations, studies, interpretations and memoranda based thereon or\nextracts, copies and other reproductions thereof is herein referred to as the “Confidential Information”). As a condition to the Confidential\nInformation being furnished by each Party to the other Party and its affiliates, subsidiaries, directors, officers, partners, members, employees, agents,\nadvisors, attorneys, accountants, consultants and potential sources of capital or financing (collectively, “Representatives”), each Party agrees to treat\nthe Confidential Information provided to it by the other Party in accordance with the provisions of this Agreement and to take or abstain from taking\ncertain other actions hereinafter set forth.\n2.\nExcluded Information. The Confidential Information shall not include information that (i) is or becomes publicly available other\nthan as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (ii) is in the Receiving Party’s\npossession or the possession of any of its Representatives prior to disclosure by or on behalf of the Disclosing Party or is independently derived by\nthe Receiving Party or any of its Representatives without the aid, application or use of the Confidential Information, (iii) is disclosed to the\nReceiving Party or any of its Representatives by a third party on a non-confidential basis, or (iv) subject to compliance with paragraph 6 below, the\nReceiving Party or any of its Representatives is advised by counsel that it is required to be disclosed by applicable law, regulation or legal process.\n3.\nUse and Non-Disclosure of Confidential Information. The Receiving Party and its Representatives shall use the Confidential\nInformation provided to it by or on behalf of the Disclosing Party solely for the purpose of evaluating a possible Transaction. The Receiving Party\nshall keep the Confidential Information provided to it by the Disclosing Party confidential and shall not disclose any of the Confidential Information\nin any manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential\nInformation provided to it by the Disclosing Party to which the Disclosing Party gives its prior written consent, and (ii) any information contained in\nthe Confidential Information provided by the Disclosing Party may be disclosed to the Receiving Party’s Representatives who reasonably require\naccess to such information for the purpose of evaluating a possible\n1\nTransaction and who agree to keep such information confidential. Each Party shall be responsible for any breach of the terms of this Agreement by\nany of its Representatives.\n4.\nNon-Disclosure of Existence of Negotiations. Without the prior written consent of the other Party, or except as a Party is advised\nby counsel is required by applicable law, regulation or legal process, neither Party nor any of its Representatives shall (i) disclose to any other person\nthat it has received Confidential Information from the other Party, or (ii) disclose to any person that discussions or negotiations are taking place\nbetween the Parties concerning a possible Transaction, including the status of such discussions or negotiations.\n5.\nReturn of Confidential Information. Promptly upon the written request of the Disclosing Party, the Receiving Party shall return\nall copies of the Confidential Information provided by or on behalf of the Disclosing Party to the Disclosing Party, and all other Confidential\nInformation (including, without limitation, all notes, summaries, analysis, compilations, studies, interpretations and memoranda based thereon or\nextracts, copies and other reproductions thereof or other documents prepared by the Receiving Party or its Representatives that contain or reflect\nsuch Confidential Information) shall be destroyed. Notwithstanding the foregoing, the Receiving Party and its Representatives may retain (subject to\nthe terms of this Agreement) copies of the Confidential Information to the extent that such retention is required by applicable law or regulation.\n6.\nSubpoena or Court Order. In the event that a Party or anyone to whom it discloses the Confidential Information provided to it by\nor on behalf of the Disclosing Party receives a request to disclose all or any part of the Confidential Information provided to it by or on behalf of the\nDisclosing Party pursuant to applicable law or regulation or under the terms of a subpoena or other order issued by a court of competent jurisdiction\nor by another governmental agency, such Party shall (provided that such is legally permitted) (i) promptly notify the Disclosing Party of the\nexistence, terms and circumstances surrounding such a request, (ii) consult with the Disclosing Party on the advisability of taking steps to resist or\nnarrow such request, (iii) if disclosure of such Confidential Information is required, furnish only such portion of the Confidential Information as such\nParty is advised by counsel is legally required to be disclosed, and (iv) reasonably cooperate with the Disclosing Party in its efforts to obtain a\nprotective order to prevent the Confidential Information from being disclosed or such other order or other reliable assurance that confidential\ntreatment will be afforded to such portion of the Confidential Information that is required to be disclosed.\n7.\nDisclaimer of Warranty. None of the Parties or their Representatives have made or make any representation or warranty as to the\naccuracy or completeness of the Confidential Information provided to the other Party. The Parties and their Representatives shall have no liability to\neach other resulting from a Party’s use of the Confidential Information, except as may be expressly set forth in a definitive written agreement\nbetween the Parties with respect to a Transaction, in accordance with the terms thereof.\n8.\nDefinitive Agreement. Unless and until a definitive written agreement between the Parties with respect to a Transaction has been\nexecuted and delivered, neither Party shall be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this\nor any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically\nagreed to herein.\n2\n9.\nApplicable Securities Laws. Each Party hereby acknowledges that some or all of the Confidential Information is likely to\nconstitute material, non-public information. Each Party hereby represents and warrants that it is aware (and that it shall advise its Representatives\nwho are not already aware) that United States and other applicable securities laws prohibit any person who has material, non-public information\nconcerning a publicly traded company or entity from purchasing or selling securities of such company or entity, or from communicating such\ninformation to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such\nsecurities. Each Party hereby agrees to fully comply with all applicable securities laws.\n10. Standstill. For a period of one (1) year from the date of this Agreement, each Party agrees that it shall not, and that it shall cause is\naffiliates and subsidiaries who have received the other Party’s Confidential Information, or who are aware of the possibility of the Transaction, not\nto, directly or indirectly, unless specifically invited in advance by the other Party’s Board of Directors: (i) acquire or agree, offer, seek or propose to\nacquire, or sell or otherwise dispose of, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Securities\nExchange Act of 1934) of any of the other Party’s assets or businesses or any securities issued by such other Party, or any rights or options to acquire\nsuch ownership (including from a third party), (ii) seek or propose to influence or control of the other Party’s management or policies (or request\npermission to do so), or (iii) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the\nforegoing.\n11.\nNo Unauthorized Contact or Solicitation by AZZ. During the course of AZZ’s evaluation of the Transaction, all inquiries and\nother communications are to be made directly to employees or representatives of North American specified by North American. Accordingly, AZZ\nagrees not to directly or indirectly contact or communicate with any executive or other employee of North American concerning the Transaction, or\nto seek any information in connection therewith from such person, without the consent of North American. AZZ also agrees not to discuss with or\noffer to any third party an equity participation in the Transaction or any other form of joint acquisition without the prior written consent of AZZ.\nFor a period of two (2) years after the date hereof, without the prior written consent of North American, neither AZZ nor any of its\naffiliates, whom AZZ has made aware of this Agreement or to whom AZZ has disclosed Confidential Information, shall, directly or indirectly, in any\nindividual, representative or other capacity, employ or engage, or solicit for employment or engagement, any employee of, or any person whose\nactivities are principally dedicated to, North American whom AZZ is made aware of or who AZZ has direct contact with as a result of AZZ’s\nconsideration of the Transaction or otherwise seek to influence or alter any such person’s relationship with North American; provided, however, that\nthe foregoing shall not prohibit AZZ from: (i) general advertising not directed toward employees of North American or hiring employees responding\nto such advertising; (ii) hiring any person who initiates discussions with AZZ regarding employment without any direct or indirect solicitation by\nAZZ or; (iii) hiring any person whose employment with North American has been terminated (by either that employee or North American) prior to\nand independent of any communication with AZZ or any of AZZ’s representatives or agents regarding employment. If the foregoing provision shall\nbe adjudicated to be invalid or unenforceable, such provision shall be amended to reduce the time period or\n3\notherwise amended as is necessary to cause such provision to be valid or enforceable, and such amendment shall apply only with respect to the\noperation of this provision in the particular jurisdiction in which such adjudication is made.\n12.\nRemedies. Each Party acknowledges that in the event of any breach of the terms of this Agreement, the other Party could not be\nmade whole by monetary damages. Accordingly, each Party, in addition to any other remedy to which it may be entitled in law or in equity, shall be\nentitled to an injunction to prevent breaches of this Agreement, and to an order compelling specific performance of this Agreement. A breaching\nParty shall reimburse the other Party for all reasonable costs and expenses, including reasonable attorneys’ fees, incurred by the other Party in the\nevent it successfully enforces the obligations of the breaching Party or its Representatives hereunder.\n13.\nEntire Agreement. This Agreement represents the entire understanding and agreement of the Parties with respect to the matters\ncontained herein, and may be modified or waived only by a separate writing executed by the Parties, expressly so modifying or waiving this\nAgreement.\n14.\nNo Waiver. No failure or delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof,\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder.\n15.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without\nregard to the laws of conflict of laws.\n16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation\nof any provisions of this Agreement.\n17. Counterparts. This Agreement may be executed in any number of counterparts, each of which for all purposes shall be deemed to\nbe an original, but all of such counterparts shall together constitute one and the same instrument. It is not necessary that each party to this Agreement\nexecute the same counterpart, so long as identical counterparts are executed by all parties to this Agreement. This Agreement may be delivered by\nfacsimile or other reliable electronic means.\n18. Term. Except with regard to paragraph 10, this Agreement shall expire two (2) years from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n4\nTHIS AGREEMENT is executed and delivered effective as of the date first written above.\nAZZ:\nAZZ INCORPORATED\nBy:\n/s/ David H. Dingus\nName: David H. Dingus\nTitle:\nPresident and CEO\nNorth American:\nNORTH AMERICAN GALVANIZING\n& COATING, INC.\nBy:\n/s/ Ronald J. Evans\nName: Ronald J. Evans\nTitle:\nPresident and CEO\nSignature Page to Confidentiality Agreement	EX-99.(D)(3) 12 d26631_ex99-d3.htm\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated as of July 22, 2008, and is made by and between North American Galvanizing\n& Coating, Inc. (“North American”) and AZZ incorporated (“AZZ”). North American and AZZ are sometimes herein collectively referred to as the\n“Parties” and each, a “Party”. In its capacity as a Party receiving Confidential Information, as that term is hereinafter defined, a Party may be\nreferred to herein as a “Receiving Party”; in its capacity as a Party disclosing Confidential Information, a Party may be referred to herein as a\n“Disclosing Party”.\n1. Confidential Information, Representatives. The Parties are considering entering into a possible transaction (the “Iransaction”), and\nin order to assist the other Party in evaluating the possible Transaction, each Party is prepared to make available to the other Party certain\nconfidential, non-public or proprietary information concerning its and/or its affiliates’ and/or subsidiaries’ businesses, plans, operations and assets\n(any and all such information provided to a Receiving Party by or on behalf a Disclosing Party, its affiliates or subsidiaries regardless of the manner\nin which such is provided, together with all notes, summaries, analysis, compilations, studies, interpretations and memoranda based thereon or\nextracts, copies and other reproductions thereof is herein referred to as the “Confidential Information”). As a condition to the Confidential\nInformation being furnished by each Party to the other Party and its affiliates, subsidiaries, directors, officers, partners, members, employees, agents,\nadvisors, attorneys, accountants, consultants and potential sources of capital or financing (collectively, “Representatives”), each Party agrees to treat\nthe Confidential Information provided to it by the other Party in accordance with the provisions of this Agreement and to take or abstain from taking\ncertain other actions hereinafter set forth.\n \n2. Excluded Information. The Confidential Information shall not include information that (i) is or becomes publicly available other\nthan as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (ii) is in the Receiving Party’s\npossession or the possession of any of its Representatives prior to disclosure by or on behalf of the Disclosing Party or is independently derived by\nthe Receiving Party or any of its Representatives without the aid, application or use of the Confidential Information, (iii) is disclosed to the\nReceiving Party or any of its Representatives by a third party on a non-confidential basis, or (iv) subject to compliance with paragraph 6 below, the\nReceiving Party or any of its Representatives is advised by counsel that it is required to be disclosed by applicable law, regulation or legal process.\n3. Use and Non-Disclosure of Confidential Information. The Receiving Party and its Representatives shall use the Confidential\nInformation provided to it by or on behalf of the Disclosing Party solely for the purpose of evaluating a possible Transaction. The Receiving Party\nshall keep the Confidential Information provided to it by the Disclosing Party confidential and shall not disclose any of the Confidential Information\nin any manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential\nInformation provided to it by the Disclosing Party to which the Disclosing Party gives its prior written consent, and (ii) any information contained in\nthe Confidential Information provided by the Disclosing Party may be disclosed to the Receiving Party’s Representatives who reasonably require\naccess to such information for the purpose of evaluating a possible\nTransaction and who agree to keep such information confidential. Each Party shall be responsible for any breach of the terms of this Agreement by\nany of its Representatives.\n4. Non-Disclosure of Existence of Negotiations. Without the prior written consent of the other Party, or except as a Party is advised\nby counsel is required by applicable law, regulation or legal process, neither Party nor any of its Representatives shall (i) disclose to any other person\nthat it has received Confidential Information from the other Party, or (ii) disclose to any person that discussions or negotiations are taking place\nbetween the Parties concerning a possible Transaction, including the status of such discussions or negotiations.\n5. Return of Confidential Information. Promptly upon the written request of the Disclosing Party, the Receiving Party shall return\nall copies of the Confidential Information provided by or on behalf of the Disclosing Party to the Disclosing Party, and all other Confidential\nInformation (including, without limitation, all notes, summaries, analysis, compilations, studies, interpretations and memoranda based thereon or\nextracts, copies and other reproductions thereof or other documents prepared by the Receiving Party or its Representatives that contain or reflect\nsuch Confidential Information) shall be destroyed. Notwithstanding the foregoing, the Receiving Party and its Representatives may retain (subject to\nthe terms of this Agreement) copies of the Confidential Information to the extent that such retention is required by applicable law or regulation.\n6. Subpoena or Court Order. In the event that a Party or anyone to whom it discloses the Confidential Information provided to it by\nor on behalf of the Disclosing Party receives a request to disclose all or any part of the Confidential Information provided to it by or on behalf of the\nDisclosing Party pursuant to applicable law or regulation or under the terms of a subpoena or other order issued by a court of competent jurisdiction\nor by another governmental agency, such Party shall (provided that such is legally permitted) (i) promptly notify the Disclosing Party of the\nexistence, terms and circumstances surrounding such a request, (ii) consult with the Disclosing Party on the advisability of taking steps to resist or\nnarrow such request, (iii) if disclosure of such Confidential Information is required, furnish only such portion of the Confidential Information as such\nParty is advised by counsel is legally required to be disclosed, and (iv) reasonably cooperate with the Disclosing Party in its efforts to obtain a\nprotective order to prevent the Confidential Information from being disclosed or such other order or other reliable assurance that confidential\ntreatment will be afforded to such portion of the Confidential Information that is required to be disclosed.\n7. Disclaimer of Warranty. None of the Parties or their Representatives have made or make any representation or warranty as to the\naccuracy or completeness of the Confidential Information provided to the other Party. The Parties and their Representatives shall have no liability to\neach other resulting from a Party’s use of the Confidential Information, except as may be expressly set forth in a definitive written agreement\nbetween the Parties with respect to a Transaction, in accordance with the terms thereof.\n8. Definitive Agreement. Unless and until a definitive written agreement between the Parties with respect to a Transaction has been\nexecuted and delivered, neither Party shall be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this\nor any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically\nagreed to herein.\n9. Applicable Securities Laws. Each Party hereby acknowledges that some or all of the Confidential Information is likely to\nconstitute material, non-public information. Each Party hereby represents and warrants that it is aware (and that it shall advise its Representatives\nwho are not already aware) that United States and other applicable securities laws prohibit any person who has material, non-public information\nconcerning a publicly traded company or entity from purchasing or selling securities of such company or entity, or from communicating such\ninformation to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such\nsecurities. Each Party hereby agrees to fully comply with all applicable securities laws.\n10. Standstill. For a period of one (1) year from the date of this Agreement, each Party agrees that it shall not, and that it shall cause is\naffiliates and subsidiaries who have received the other Party’s Confidential Information, or who are aware of the possibility of the Transaction, not\nto, directly or indirectly, unless specifically invited in advance by the other Party’s Board of Directors: (i) acquire or agree, offer, seek or propose to\nacquire, or sell or otherwise dispose of, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Securities\nExchange Act of 1934) of any of the other Party’s assets or businesses or any securities issued by such other Party, or any rights or options to acquire\nsuch ownership (including from a third party), (ii) seek or propose to influence or control of the other Party’s management or policies (or request\npermission to do so), or (iii) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the\nforegoing.\n11. No Unauthorized Contact or Solicitation by AZZ. During the course of AZZ’s evaluation of the Transaction, all inquiries and\nother communications are to be made directly to employees or representatives of North American specified by North American. Accordingly, AZZ\nagrees not to directly or indirectly contact or communicate with any executive or other employee of North American concerning the Transaction, or\nto seek any information in connection therewith from such person, without the consent of North American. AZZ also agrees not to discuss with or\noffer to any third party an equity participation in the Transaction or any other form of joint acquisition without the prior written consent of AZZ.\nFor a period of two (2) years after the date hereof, without the prior written consent of North American, neither AZZ nor any of its\naffiliates, whom AZZ has made aware of this Agreement or to whom AZZ has disclosed Confidential Information, shall, directly or indirectly, in any\nindividual, representative or other capacity, employ or engage, or solicit for employment or engagement, any employee of, or any person whose\nactivities are principally dedicated to, North American whom AZZ is made aware of or who AZZ has direct contact with as a result of AZZ’s\nconsideration of the Transaction or otherwise seek to influence or alter any such person’s relationship with North American; provided, however, that\nthe foregoing shall not prohibit AZZ from: (i) general advertising not directed toward employees of North American or hiring employees responding\nto such advertising; (ii) hiring any person who initiates discussions with AZZ regarding employment without any direct or indirect solicitation by\nAZZ or; (iii) hiring any person whose employment with North American has been terminated (by either that employee or North American) prior to\nand independent of any communication with AZZ or any of AZZ’s representatives or agents regarding employment. If the foregoing provision shall\nbe adjudicated to be invalid or unenforceable, such provision shall be amended to reduce the time period or\n \notherwise amended as is necessary to cause such provision to be valid or enforceable, and such amendment shall apply only with respect to the\noperation of this provision in the particular jurisdiction in which such adjudication is made.\n12. Remedies. Each Party acknowledges that in the event of any breach of the terms of this Agreement, the other Party could not be\nmade whole by monetary damages. Accordingly, each Party, in addition to any other remedy to which it may be entitled in law or in equity, shall be\nentitled to an injunction to prevent breaches of this Agreement, and to an order compelling specific performance of this Agreement. A breaching\nParty shall reimburse the other Party for all reasonable costs and expenses, including reasonable attorneys’ fees, incurred by the other Party in the\nevent it successfully enforces the obligations of the breaching Party or its Representatives hereunder.\n13. Entire Agreement. This Agreement represents the entire understanding and agreement of the Parties with respect to the matters\ncontained herein, and may be modified or waived only by a separate writing executed by the Parties, expressly so modifying or waiving this\nAgreement.\n14. No Waiver. No failure or delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof,\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder.\n15. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without\nregard to the laws of conflict of laws.\n16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation\nof any provisions of this Agreement.\n17. Counterparts. This Agreement may be executed in any number of counterparts, each of which for all purposes shall be deemed to\nbe an original, but all of such counterparts shall together constitute one and the same instrument. It is not necessary that each party to this Agreement\nexecute the same counterpart, so long as identical counterparts are executed by all parties to this Agreement. This Agreement may be delivered by\nfacsimile or other reliable electronic means.\n18. Term. Except with regard to paragraph 10, this Agreement shall expire two (2) years from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n4\nTHIS AGREEMENT is executed and delivered effective as of the date first written above.\nAZ7Z:\nAZZ7Z INCORPORATED\nBy: /s/ David H. Dingus\nName: David H. Dingus\nTitle:  President and CEO\nNorth American:\nNORTH AMERICAN GALVANIZING\n& COATING, INC.\nBy: /s/ Ronald J. Evans\nName: RonaldJ. Evans\nTitle: President and CEO\nSignature Page to Confidentiality Agreement	EX-99.(D)(3) 12 126631ex99-d3.htm\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this "Agreement") is dated as of July 22, 2008, and is made by and between North American Galvanizing\n& Coating, Inc. ("North American") and AZZ incorporated ("AZZ"). North American and AZZ are sometimes herein collectively referred to as the\n"Parties" and each, a "Party.". In its capacity as a Party receiving Confidential Information, as that term is hereinafter defined, a Party may be\nreferred to herein as a "Receiving Party."; in its capacity as a Party disclosing Confidential Information, a Party may be referred to herein as a\n"Disclosing Party.".\n1.\nConfidential Information, Representatives. The Parties are considering entering into a possible transaction (the "Transaction"), and\nin\norder to assist the other Party in evaluating the possible Transaction, each Party is prepared to make available to the other Party certain\nconfidential, non-public or proprietary information concerning its and/or its affiliates' and/or subsidiaries' businesses, plans, operations and assets\n(any and all such information provided to a Receiving Party by or on behalf a Disclosing Party, its affiliates or subsidiaries regardless of the manner\nin which such is provided, together with all notes, summaries, analysis, compilations, studies, interpretations and memoranda based thereon or\nextracts, copies and other reproductions thereof is herein referred to as the "Confidential Information"). As a condition to the Confidential\nInformation being furnished by each Party to the other Party and its affiliates, subsidiaries, directors, officers, partners, members, employees, agents,\nadvisors, attorneys, accountants, consultants and potential sources of capital or financing (collectively, "Representatives"), each Party agrees to treat\nthe Confidential Information provided to it by the other Party in accordance with the provisions of this Agreement and to take or abstain from taking\ncertain other actions hereinafter set forth.\n2.\nExcluded Information. The Confidential Information shall not include information that (i) is or becomes publicly available other\nthan as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (ii) is in the Receiving Party's\npossession or the possession of any of its Representatives prior to disclosure by or on behalf of the Disclosing Party or is independently derived\nby\nthe Receiving Party or any of its Representatives without the aid, application or use of the Confidential Information, (iii) is disclosed to the\nReceiving Party or any of its Representatives by a third party on a non-confidential basis, or (iv) subject to compliance with paragraph 6 below,\nthe\nReceiving Party or any of its Representatives is advised by counsel that it is required to be disclosed by applicable law, regulation or legal process.\n3.\nUse and Non-Disclosure of Confidential Information. The Receiving Party and its Representatives shall use the Confidential\nInformation\nprovided\nto\nit\nby\nor\non\nbehalf\nof\nthe\nDisclosing\nParty\nsolely\nfor\nthe\npurpose\nof\nevaluating\na\npossible\nTransaction.\nThe\nReceiving\nParty\nshall keep the Confidential Information provided to it by the Disclosing Party confidential and shall not disclose any of the Confidential Information\nin\nany manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential\nInformation provided to it by the Disclosing Party to which the Disclosing Party gives its prior written consent, and (ii) any information contained in\nthe Confidential Information provided by the Disclosing Party may be disclosed to the Receiving Party's Representatives who reasonably require\naccess to such information for the purpose of evaluating a possible\n1\nTransaction and who agree to keep such information confidential. Each Party shall be responsible for any breach of the terms of this Agreement by\nany of its Representatives.\n4.\nNon-Disclosure of Existence of Negotiations. Without the prior written consent of the other Party, or except as a Party is advised\nby counsel is required by applicable law, regulation or legal process, neither Party nor any of its Representatives shall (i) disclose to any other person\nthat it has received Confidential Information from the other Party, or (ii) disclose to any person that discussions or negotiations are taking place\nbetween the Parties concerning a possible Transaction, including the status of such discussions or negotiations.\n5.\nReturn of Confidential Information. Promptly upon the written request of the Disclosing Party, the Receiving Party shall\nreturn\nall copies of the Confidential Information provided by or on behalf of the Disclosing Party to the Disclosing Party, and all other Confidential\nInformation (including, without limitation, all notes, summaries, analysis, compilations, studies, interpretations and memoranda based thereon or\nextracts, copies and other reproductions thereof or other documents prepared by the Receiving Party or its Representatives that contain or reflect\nsuch Confidential Information) shall be destroyed. Notwithstanding the foregoing, the Receiving Party and its Representatives may retain (subject to\nthe terms of this Agreement) copies of the Confidentia Information to the extent that such retention is required by applicable law or regulation.\n6.\nSubpoena or Court Order. In the event that a Party or anyone to whom it discloses the Confidential Information provided to it by\nor on behalf of the Disclosing Party receives a request to disclose all or any part of the Confidential Information provided to it by or on behalf of the\nDisclosing Party pursuant to applicable law or regulation or under the terms of a subpoena or other order issued by a court of competent jurisdiction\nor by another governmental agency, such Party shall (provided that such is legally permitted) (i) promptly notify the Disclosing Party of the\nexistence, terms and circumstances surrounding such a request, (ii) consult with the Disclosing Party on the advisability of taking steps to resist or\nnarrow such request, (iii) if disclosure of such Confidential Information is required, furnish only such portion of the Confidential Information as such\nParty is advised by counsel is legally required to be disclosed, and (iv) reasonably cooperate with the Disclosing Party in its efforts to obtain a\nprotective order to prevent the Confidential Information from being disclosed or such other order or other reliable assurance that confidential\ntreatment will be afforded to such portion of the Confidentia Information that is required to be disclosed.\n7.\nDisclaimer of Warranty. None of the Parties or their Representatives have made or make any representation or warranty as to the\naccuracy or completeness of the Confidential Information provided to the other Party. The Parties and their Representatives shall have no liability to\neach other resulting from a Party's use of the Confidential Information, except as may be expressly set forth in a definitive written agreement\nbetween the Parties with respect to a Transaction, in accordance with the terms thereof.\n8.\nDefinitive Agreement. Unless and until a definitive written agreement between the Parties with respect to a Transaction has been\nexecuted and delivered, neither Party shall be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this\nor any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically\nagreed to herein.\n2\n9.\nApplicable Securities Laws. Each Party hereby acknowledges that some or all of the Confidential Information is likely to\nconstitute material, non-public information Each Party hereby represents and warrants that it is aware (and that it shall advise its Representatives\nwho are not already aware) that United States and other applicable securities laws prohibit any person who has material, non-public information\nconcerning a publicly traded company or entity from purchasing or selling securities of such company or entity, or from communicating such\ninformation to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such\nsecurities. Each Party hereby agrees to fully comply with all applicable securities laws.\n10.\nStandstill. For a period of one (1) year from the date of this Agreement, each Party agrees that it shall not, and that it shall cause is\naffiliates and subsidiaries who have received the other Party's Confidential Information, or who are aware of the possibility of the Transaction, not\nto, directly or indirectly, unless specifically invited in advance by the other Party's Board of Directors: (i) acquire or agree, offer, seek or propose to\nacquire, or sell or otherwise dispose of, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Securities\nExchange Act of 1934) of any of the other Party's assets or businesses or any securities issued by such other Party, or any rights or options to acquire\nsuch ownership (including from a third party), (ii) seek or propose to influence or control of the other Party's management or policies (or request\npermission to do so), or (iii) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the\nforegoing.\n11.\nNo Unauthorized Contact or Solicitation by AZZ. During the course of AZZ's evaluation of the Transaction, all inquiries and\nother communications are to be made directly to employees or representatives of North American specified by North American. Accordingly, AZZ\nagrees\nnot\nto\ndirectly\nor\nindirectly\ncontact\nor\ncommunicate\nwith\nany\nexecutive\nor\nother\nemployee\nof\nNorth\nAmerican\nconcerning\nthe\nTransaction,\nor\nto seek any information in connection therewith from such person, without the consent of North American. AZZ also agrees not to discuss with or\noffer to any third party an equity participation in the Transaction or any other form of joint acquisition without the prior written consent of AZZ.\nFor a period of two (2) years after the date hereof, without the prior written consent of North American, neither AZZ nor any of its\naffiliates, whom AZZ has made aware of this Agreement or to whom AZZ has disclosed Confidential Information, shall, directly or indirectly, in any\nindividual,\nrepresentative\nor\nother\ncapacity,\nemploy\nor\nengage,\nor\nsolicit\nfor\nemployment\nor\nengagement,\nany\nemployee\nof,\nor\nany\nperson\nwhose\nactivities are principally dedicated to, North American whom AZZ is made aware of or who AZZ has direct contact with as a result of AZZ's\nconsideration of the Transaction or otherwise seek to influence or alter any such person's relationship with North American; provided, however, that\nthe\nforegoing\nshall\nnot\nprohibit\nAZZ\nfrom:\n(i)\ngeneral\nadvertising\nnot\ndirected\ntoward\nemployees\nof\nNorth\nAmerican\nor\nhiring\nemployees\nresponding\nto such advertising; (ii) hiring any person who initiates discussions with AZZ regarding employment without any direct or indirect solicitation by\nAZZ or; (iii) hiring any person whose employment with North American has been terminated (by either that employee or North American) prior to\nand independent of any communication with AZZ or any of AZZ's representatives or agents regarding employment. If the foregoing provision shall\nbe adjudicated to be invalid or unenforceable, such provision shall be amended to reduce the time period or\n3\notherwise amended as is necessary to cause such provision to be valid or enforceable, and such amendment shall apply only with respect to the\noperation of this provision in the particular jurisdiction in which such adjudication is made.\n12. Remedies. Each Party acknowledges that in the event of any breach of the terms of this Agreement, the other Party could not be\nmade whole by monetary damages. Accordingly, each Party, in addition to any other remedy to which it may be entitled in law or in equity, shall be\nentitled to an injunction to prevent breaches of this Agreement, and to an order compelling specific performance of this Agreement. A breaching\nParty shall reimburse the other Party for all reasonable costs and expenses, including reasonable attorneys' fees, incurred by the other Party in\nthe\nevent it successfully enforces the obligations of the breaching Party or its Representatives hereunder.\n13.\nEntire Agreement. This Agreement represents the entire understanding and agreement of the Parties with respect to the matters\ncontained herein, and may be modified or waived only by a separate writing executed by the Parties, expressly so modifying or waiving this\nAgreement.\n14.\nNo Waiver. No failure or delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof,\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder.\n15.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without\nregard to the laws of conflict of laws.\n16.\nCaptions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation\nof any provisions of this Agreement.\n17.\nCounterparts. This Agreement may be executed in any number of counterparts, each of which for all purposes shall be deemed to\nbe an original, but all of such counterparts shall together constitute one and the same instrument. It is not necessary that each party to this Agreement\nexecute the same counterpart, so long as identical counterparts are executed by all parties to this Agreement. This Agreement may be delivered by\nfacsimile or other reliable electronic means.\n18.\nTerm. Except with regard to paragraph 10, this Agreement shall expire two (2) years from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n4\nTHIS AGREEMENT is executed and delivered effective as of the date first written above.\nAZZ:\nAZZ INCORPORATED\nBy:\n/s/ David H. Dingus\nName: David H. Dingus\nTitle: President and CEO\nNorth American:\nNORTH AMERICAN GALVANIZING\n& COATING, INC.\nBy:\n/s/ Ronald J. Evans\nName: Ronald J. Evans\nTitle:\nPresident and CEO\nSignature Page to Confidentiality Agreement	EX-99.(D)(3) 12 d26631_ex99-d3.htm\nMUTUAL CONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is dated as of July 22, 2008, and is made by and between North American Galvanizing\n& Coating, Inc. (“North American”) and AZZ incorporated (“AZZ”). North American and AZZ are sometimes herein collectively referred to as the\n“Parties” and each, a “Party”. In its capacity as a Party receiving Confidential Information, as that term is hereinafter defined, a Party may be\nreferred to herein as a “Receiving Party”; in its capacity as a Party disclosing Confidential Information, a Party may be referred to herein as a\n“Disclosing Party”.\n1. Confidential Information, Representatives. The Parties are considering entering into a possible transaction (the “Transaction”), and\nin order to assist the other Party in evaluating the possible Transaction, each Party is prepared to make available to the other Party certain\nconfidential, non-public or proprietary information concerning its and/or its affiliates’ and/or subsidiaries’ businesses, plans, operations and assets\n(any and all such information provided to a Receiving Party by or on behalf a Disclosing Party, its affiliates or subsidiaries regardless of the manner\nin which such is provided, together with all notes, summaries, analysis, compilations, studies, interpretations and memoranda based thereon or\nextracts, copies and other reproductions thereof is herein referred to as the “Confidential Information”). As a condition to the Confidential\nInformation being furnished by each Party to the other Party and its affiliates, subsidiaries, directors, officers, partners, members, employees, agents,\nadvisors, attorneys, accountants, consultants and potential sources of capital or financing (collectively, “Representatives”), each Party agrees to treat\nthe Confidential Information provided to it by the other Party in accordance with the provisions of this Agreement and to take or abstain from taking\ncertain other actions hereinafter set forth.\n2.\nExcluded Information. The Confidential Information shall not include information that (i) is or becomes publicly available other\nthan as a result of acts by the Receiving Party or its Representatives in breach of the terms of this Agreement, (ii) is in the Receiving Party’s\npossession or the possession of any of its Representatives prior to disclosure by or on behalf of the Disclosing Party or is independently derived by\nthe Receiving Party or any of its Representatives without the aid, application or use of the Confidential Information, (iii) is disclosed to the\nReceiving Party or any of its Representatives by a third party on a non-confidential basis, or (iv) subject to compliance with paragraph 6 below, the\nReceiving Party or any of its Representatives is advised by counsel that it is required to be disclosed by applicable law, regulation or legal process.\n3.\nUse and Non-Disclosure of Confidential Information. The Receiving Party and its Representatives shall use the Confidential\nInformation provided to it by or on behalf of the Disclosing Party solely for the purpose of evaluating a possible Transaction. The Receiving Party\nshall keep the Confidential Information provided to it by the Disclosing Party confidential and shall not disclose any of the Confidential Information\nin any manner whatsoever; provided, however, that (i) the Receiving Party may make any disclosure of information contained in the Confidential\nInformation provided to it by the Disclosing Party to which the Disclosing Party gives its prior written consent, and (ii) any information contained in\nthe Confidential Information provided by the Disclosing Party may be disclosed to the Receiving Party’s Representatives who reasonably require\naccess to such information for the purpose of evaluating a possible\n1\nTransaction and who agree to keep such information confidential. Each Party shall be responsible for any breach of the terms of this Agreement by\nany of its Representatives.\n4.\nNon-Disclosure of Existence of Negotiations. Without the prior written consent of the other Party, or except as a Party is advised\nby counsel is required by applicable law, regulation or legal process, neither Party nor any of its Representatives shall (i) disclose to any other person\nthat it has received Confidential Information from the other Party, or (ii) disclose to any person that discussions or negotiations are taking place\nbetween the Parties concerning a possible Transaction, including the status of such discussions or negotiations.\n5.\nReturn of Confidential Information. Promptly upon the written request of the Disclosing Party, the Receiving Party shall return\nall copies of the Confidential Information provided by or on behalf of the Disclosing Party to the Disclosing Party, and all other Confidential\nInformation (including, without limitation, all notes, summaries, analysis, compilations, studies, interpretations and memoranda based thereon or\nextracts, copies and other reproductions thereof or other documents prepared by the Receiving Party or its Representatives that contain or reflect\nsuch Confidential Information) shall be destroyed. Notwithstanding the foregoing, the Receiving Party and its Representatives may retain (subject to\nthe terms of this Agreement) copies of the Confidential Information to the extent that such retention is required by applicable law or regulation.\n6.\nSubpoena or Court Order. In the event that a Party or anyone to whom it discloses the Confidential Information provided to it by\nor on behalf of the Disclosing Party receives a request to disclose all or any part of the Confidential Information provided to it by or on behalf of the\nDisclosing Party pursuant to applicable law or regulation or under the terms of a subpoena or other order issued by a court of competent jurisdiction\nor by another governmental agency, such Party shall (provided that such is legally permitted) (i) promptly notify the Disclosing Party of the\nexistence, terms and circumstances surrounding such a request, (ii) consult with the Disclosing Party on the advisability of taking steps to resist or\nnarrow such request, (iii) if disclosure of such Confidential Information is required, furnish only such portion of the Confidential Information as such\nParty is advised by counsel is legally required to be disclosed, and (iv) reasonably cooperate with the Disclosing Party in its efforts to obtain a\nprotective order to prevent the Confidential Information from being disclosed or such other order or other reliable assurance that confidential\ntreatment will be afforded to such portion of the Confidential Information that is required to be disclosed.\n7.\nDisclaimer of Warranty. None of the Parties or their Representatives have made or make any representation or warranty as to the\naccuracy or completeness of the Confidential Information provided to the other Party. The Parties and their Representatives shall have no liability to\neach other resulting from a Party’s use of the Confidential Information, except as may be expressly set forth in a definitive written agreement\nbetween the Parties with respect to a Transaction, in accordance with the terms thereof.\n8.\nDefinitive Agreement. Unless and until a definitive written agreement between the Parties with respect to a Transaction has been\nexecuted and delivered, neither Party shall be under any legal obligation of any kind whatsoever with respect to such a Transaction by virtue of this\nor any other written or oral expression by either of them or their Representatives except, in the case of this Agreement, for the matters specifically\nagreed to herein.\n2\n9.\nApplicable Securities Laws. Each Party hereby acknowledges that some or all of the Confidential Information is likely to\nconstitute material, non-public information. Each Party hereby represents and warrants that it is aware (and that it shall advise its Representatives\nwho are not already aware) that United States and other applicable securities laws prohibit any person who has material, non-public information\nconcerning a publicly traded company or entity from purchasing or selling securities of such company or entity, or from communicating such\ninformation to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such\nsecurities. Each Party hereby agrees to fully comply with all applicable securities laws.\n10. Standstill. For a period of one (1) year from the date of this Agreement, each Party agrees that it shall not, and that it shall cause is\naffiliates and subsidiaries who have received the other Party’s Confidential Information, or who are aware of the possibility of the Transaction, not\nto, directly or indirectly, unless specifically invited in advance by the other Party’s Board of Directors: (i) acquire or agree, offer, seek or propose to\nacquire, or sell or otherwise dispose of, ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Securities\nExchange Act of 1934) of any of the other Party’s assets or businesses or any securities issued by such other Party, or any rights or options to acquire\nsuch ownership (including from a third party), (ii) seek or propose to influence or control of the other Party’s management or policies (or request\npermission to do so), or (iii) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the\nforegoing.\n11.\nNo Unauthorized Contact or Solicitation by AZZ. During the course of AZZ’s evaluation of the Transaction, all inquiries and\nother communications are to be made directly to employees or representatives of North American specified by North American. Accordingly, AZZ\nagrees not to directly or indirectly contact or communicate with any executive or other employee of North American concerning the Transaction, or\nto seek any information in connection therewith from such person, without the consent of North American. AZZ also agrees not to discuss with or\noffer to any third party an equity participation in the Transaction or any other form of joint acquisition without the prior written consent of AZZ.\nFor a period of two (2) years after the date hereof, without the prior written consent of North American, neither AZZ nor any of its\naffiliates, whom AZZ has made aware of this Agreement or to whom AZZ has disclosed Confidential Information, shall, directly or indirectly, in any\nindividual, representative or other capacity, employ or engage, or solicit for employment or engagement, any employee of, or any person whose\nactivities are principally dedicated to, North American whom AZZ is made aware of or who AZZ has direct contact with as a result of AZZ’s\nconsideration of the Transaction or otherwise seek to influence or alter any such person’s relationship with North American; provided, however, that\nthe foregoing shall not prohibit AZZ from: (i) general advertising not directed toward employees of North American or hiring employees responding\nto such advertising; (ii) hiring any person who initiates discussions with AZZ regarding employment without any direct or indirect solicitation by\nAZZ or; (iii) hiring any person whose employment with North American has been terminated (by either that employee or North American) prior to\nand independent of any communication with AZZ or any of AZZ’s representatives or agents regarding employment. If the foregoing provision shall\nbe adjudicated to be invalid or unenforceable, such provision shall be amended to reduce the time period or\n3\notherwise amended as is necessary to cause such provision to be valid or enforceable, and such amendment shall apply only with respect to the\noperation of this provision in the particular jurisdiction in which such adjudication is made.\n12.\nRemedies. Each Party acknowledges that in the event of any breach of the terms of this Agreement, the other Party could not be\nmade whole by monetary damages. Accordingly, each Party, in addition to any other remedy to which it may be entitled in law or in equity, shall be\nentitled to an injunction to prevent breaches of this Agreement, and to an order compelling specific performance of this Agreement. A breaching\nParty shall reimburse the other Party for all reasonable costs and expenses, including reasonable attorneys’ fees, incurred by the other Party in the\nevent it successfully enforces the obligations of the breaching Party or its Representatives hereunder.\n13.\nEntire Agreement. This Agreement represents the entire understanding and agreement of the Parties with respect to the matters\ncontained herein, and may be modified or waived only by a separate writing executed by the Parties, expressly so modifying or waiving this\nAgreement.\n14.\nNo Waiver. No failure or delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof,\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder.\n15.\nGoverning Law. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without\nregard to the laws of conflict of laws.\n16. Captions. The Captions contained in this Agreement are for convenience only and shall not affect the construction or interpretation\nof any provisions of this Agreement.\n17. Counterparts. This Agreement may be executed in any number of counterparts, each of which for all purposes shall be deemed to\nbe an original, but all of such counterparts shall together constitute one and the same instrument. It is not necessary that each party to this Agreement\nexecute the same counterpart, so long as identical counterparts are executed by all parties to this Agreement. This Agreement may be delivered by\nfacsimile or other reliable electronic means.\n18. Term. Except with regard to paragraph 10, this Agreement shall expire two (2) years from the date hereof.\n[Remainder of Page Intentionally Left Blank]\n4\nTHIS AGREEMENT is executed and delivered effective as of the date first written above.\nAZZ:\nAZZ INCORPORATED\nBy:\n/s/ David H. Dingus\nName: David H. Dingus\nTitle:\nPresident and CEO\nNorth American:\nNORTH AMERICAN GALVANIZING\n& COATING, INC.\nBy:\n/s/ Ronald J. Evans\nName: Ronald J. Evans\nTitle:\nPresident and CEO\nSignature Page to Confidentiality Agreement
+22526e24107177141dc9b66afed7106d.pdf	effective_date jurisdiction party term	EX-10.3 4 dex103.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT 10.3\nCONFIDENTIALITY AGREEMENT\nAs a condition of my becoming a member of the Board of Directors of Interactive Data Corporation, a Delaware corporation (the\n“Company”), and in consideration of my service to the Company as a director and my receipt of the compensation now and hereafter paid to me by\nthe Company, I agree to the following:\nSection 1. Confidential Information.\n(a) Company Group Information. I acknowledge that, during the course of my service to the Company, I will have access to\ninformation about the Company and its direct and indirect parents and subsidiaries (collectively, the “Company Group”) and that my service to the\nCompany shall bring me into close contact with confidential and proprietary information of the Company Group. In recognition of the foregoing, I\nagree, at all times during the term of my service to the Company and for the ten (10) year period following my termination of service to the\nCompany Group for any reason, to hold in confidence, and not to use, except for the benefit of the Company Group, or to disclose to any person,\nfirm, corporation, or other entity without written authorization of the Company, any Confidential Information that I obtain or create. I further agree\nnot to make copies of such Confidential Information except as authorized by the Company. I understand that “Confidential Information” means\ninformation that the Company Group has developed, acquired, created, compiled, discovered, or owned or will develop, acquire, create, compile,\ndiscover, or own, that has value in or to the business of the Company Group that is not generally known and that the Company wishes to maintain as\nconfidential. I understand that Confidential Information includes, but is not limited to, any and all non-public information that relates to the actual or\nanticipated business and/or products, research, or development of the Company, or to the Company’s technical data, trade secrets, or know-how,\nincluding, but not limited to, research, product plans, or other information regarding the Company’s products or services and markets, customer lists,\nand customers, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration\ninformation, marketing, finances, and other business information disclosed by the Company either directly or indirectly in writing, orally, or by\ndrawings or inspection of premises, parts, equipment, or other Company property. Notwithstanding the foregoing, Confidential Information shall not\ninclude (i) any of the foregoing items that have become publicly and widely known through no unauthorized disclosure by me or others who were\nunder confidentiality obligations as to the item or items involved or (ii) any information that I am required to disclose to, or by, any governmental or\njudicial authority; provided, however, that in such event I will give the Company prompt written notice thereof so that the Company Group may seek\nan appropriate protective order and/or waive in writing compliance with the confidentiality provisions of this Confidentiality Agreement\n(the “Confidentiality Agreement”).\n(b) Former or Concurrent Service Recipient Information. I represent that my performance of all of the terms of this\nConfidentiality Agreement as a director of the Company has not breached and will not breach any agreement to keep in confidence proprietary\ninformation, knowledge, or data acquired by me in confidence or trust prior or subsequent to the commencement of my service to the Company, and\nI will not disclose to any member of the Company Group, or induce any member of the Company Group to use, any developments, or\nconfidential or proprietary information or material I may have obtained in connection with employment with or service to any prior or concurrent\nemployer or service recipient in violation of a confidentiality agreement, nondisclosure agreement, or similar agreement with such prior or\nconcurrent employer or service recipient.\nSection 2. Returning Company Group Documents.\nI agree that, at the time of termination of my service to the Company for any reason, I will deliver to the Company (and will not keep in\nmy possession, recreate, or deliver to anyone else) any and all Confidential Information and all other documents, materials, information, and\nproperty otherwise belonging to the Company. I agree further that any property situated on the Company’s premises and owned by the Company (or\nany other member of the Company Group), including disks and other storage media, filing cabinets, and other work areas, is subject to inspection by\npersonnel of any member of the Company Group at any time with or without notice.\nSection 3. Disclosure of Agreement.\nAs long as it remains in effect, I will disclose the existence of this Confidentiality Agreement to any prospective employer, partner, co-\nventurer, investor, or lender prior to entering into an employment, partnership, or other business relationship with such person or entity.\nSection 4. Reasonableness of Restrictions.\nI acknowledge and recognize the highly competitive nature of the Company’s business, that access to Confidential Information renders\nme special and unique within the Company’s industry. In light of the foregoing, I recognize and acknowledge that the restrictions and limitations set\nforth in this Confidentiality Agreement are reasonable and valid in geographical and temporal scope and in all other respects and are essential to\nprotect the value of the business and assets of the Company Group. I acknowledge further that the restrictions and limitations set forth in this\nConfidentiality Agreement will not materially interfere with my ability to earn a living following the termination of my service to the Company and\nthat my ability to earn a livelihood without violating such restrictions is a material condition to my service to the Company.\nSection 5. Independence; Severability; Blue Pencil.\nEach of the rights enumerated in this Confidentiality Agreement shall be independent of the others and shall be in addition to and not in\nlieu of any other rights and remedies available to the Company Group at law or in equity. If any of the provisions of this Confidentiality Agreement\nor any part of any of them is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of this\nConfidentiality Agreement, which shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are held to\nbe invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, I agree that the court making such\ndetermination shall have the power to reduce the duration, scope, and/or area of such provision to the maximum and/or broadest duration, scope,\nand/or area permissible by law, and in its reduced form said provision shall then be enforceable.\n-2-\nSection 6. Injunctive Relief.\nI expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in this Confidentiality\nAgreement may result in substantial, continuing, and irreparable injury to the members of the Company Group. Therefore, I hereby agree that, in\naddition to any other remedy that may be available to the Company, any member of the Company Group shall be entitled to seek injunctive relief,\nspecific performance, or other equitable relief by a court of appropriate jurisdiction in the event of any breach or threatened breach of the terms of\nthis Confidentiality Agreement without the necessity of proving irreparable harm or injury as a result of such breach or threatened breach.\nSection 7. Cooperation.\nI agree that, following any termination of my service to the Company, I will continue to provide reasonable cooperation (to the extent\nthat it does not materially interfere with any other employment obligations at that time) to the Company and/or any other member of the Company\nGroup and its or their respective counsel in connection with any investigation, administrative proceeding, or litigation relating to any matter that\noccurred during my service to the Company in which I was involved or of which I have knowledge. As a condition of such cooperation, the\nCompany shall reimburse me for reasonable out-of-pocket expenses incurred at the request of the Company with respect to my compliance with this\nparagraph. I also agree that, in the event that I am subpoenaed by any person or entity (including, but not limited to, any government agency) to give\ntestimony or provide documents (in a deposition, court proceeding, or otherwise) that in any way relates to my service to the Company and/or any\nother member of the Company Group, I will give prompt notice of such request to the Company and will make no disclosure until the Company\nand/or the other member of the Company Group has had a reasonable opportunity to contest the right of the requesting person or entity to such\ndisclosure.\nSection 8. General Provisions.\n(a) Governing Law and Jurisdiction. EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE VALIDITY,\nINTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS CONFIDENTIALITY AGREEMENT IS GOVERNED BY AND IS\nTO BE CONSTRUED UNDER THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE\nPERFORMED IN THAT STATE, WITHOUT REGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR\nRELATING TO THIS CONFIDENTIALITY AGREEMENT OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN\nTHE UNITED STATES DISTRICT COURT FOR THE STATE OF DELAWARE, TO THE EXTENT FEDERAL JURISDICTION EXISTS, AND\nIN ANY COURT SITTING IN DELAWARE, BUT ONLY IN THE EVENT FEDERAL JURISDICTION DOES NOT EXIST, AND ANY\nAPPLICABLE APPELLATE COURTS. BY EXECUTION OF THIS CONFIDENTIALITY AGREEMENT, THE PARTIES HERETO, AND\nTHEIR RESPECTIVE AFFILIATES, CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, AND\n-3-\nWAIVE ANY RIGHT TO CHALLENGE JURISDICTION OR VENUE IN SUCH COURT WITH REGARD TO ANY SUIT, ACTION, OR\nPROCEEDING UNDER OR IN CONNECTION WITH THIS CONFIDENTIALITY AGREEMENT. EACH PARTY TO THIS\nCONFIDENTIALITY AGREEMENT ALSO HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT,\nACTION, OR PROCEEDING UNDER OR IN CONNECTION WITH THIS CONFIDENTIALITY AGREEMENT.\n(b) Entire Agreement. This Confidentiality Agreement sets forth the entire agreement and understanding between the Company\nand me relating to the subject matter herein and merges all prior discussions between us. No modification or amendment to this Confidentiality\nAgreement, nor any waiver of any rights under this Confidentiality Agreement, will be effective unless in writing signed by the party to be charged.\nAny subsequent change or changes in my duties, obligations, rights, or compensation will not affect the validity or scope of this Confidentiality\nAgreement.\n(c) No Right of Continued Service. I acknowledge and agree that nothing contained herein shall be construed as granting me any\nright to continued service to the Company, and the right of the Company to terminate my service at any time and for any reason, with or without\ncause, is specifically reserved.\n(d) Successors and Assigns. This Confidentiality Agreement will be binding upon my heirs, executors, administrators, and other\nlegal representatives and will be for the benefit of the Company, its successors, and its assigns. I expressly acknowledge and agree that this\nConfidentiality Agreement may be assigned by the Company without my consent to any other member of the Company Group as well as any\npurchaser of all or substantially all of the assets or stock of the Company, whether by purchase, merger, or other similar corporate transaction.\n(e) Survival. The provisions of this Confidentiality Agreement shall survive the termination of my service to the Company and/or\nthe assignment of this Confidentiality Agreement by the Company to any successor in interest or other assignee.\n*\n*\n*\nI, Andrew Prozes, have executed this Confidentiality and Confidentiality Agreement on the respective date set forth below:\nDate: May 5, 2011\n/s/ Andrew Prozes\n(Signature)\nAndrew Prozes\n(Type/Print Name)\n-4-	EX-10.3 4 dex103.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT 10.3\nCONFIDENTIALITY AGREEMENT\nAs a condition of my becoming a member of the Board of Directors of Interactive Data Corporation, a Delaware corporation (the\n“Company”), and in consideration of my service to the Company as a director and my receipt of the compensation now and hereafter paid to me by\nthe Company, I agree to the following:\nSection 1. Confidential Information.\n(a) Company Group Information. I acknowledge that, during the course of my service to the Company, I will have access to\ninformation about the Company and its direct and indirect parents and subsidiaries (collectively, the “Company Group”) and that my service to the\nCompany shall bring me into close contact with confidential and proprietary information of the Company Group. In recognition of the foregoing, I\nagree, at all times during the term of my service to the Company and for the ten (10) year period following my termination of service to the\nCompany Group for any reason, to hold in confidence, and not to use, except for the benefit of the Company Group, or to disclose to any person,\nfirm, corporation, or other entity without written authorization of the Company, any Confidential Information that I obtain or create. I further agree\nnot to make copies of such Confidential Information except as authorized by the Company. I understand that “Confidential Information” means\ninformation that the Company Group has developed, acquired, created, compiled, discovered, or owned or will develop, acquire, create, compile,\ndiscover, or own, that has value in or to the business of the Company Group that is not generally known and that the Company wishes to maintain as\nconfidential. I understand that Confidential Information includes, but is not limited to, any and all non-public information that relates to the actual or\nanticipated business and/or products, research, or development of the Company, or to the Company’s technical data, trade secrets, or know-how,\nincluding, but not limited to, research, product plans, or other information regarding the Company’s products or services and markets, customer lists,\nand customers, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration\ninformation, marketing, finances, and other business information disclosed by the Company either directly or indirectly in writing, orally, or by\ndrawings or inspection of premises, parts, equipment, or other Company property. Notwithstanding the foregoing, Confidential Information shall not\ninclude (i) any of the foregoing items that have become publicly and widely known through no unauthorized disclosure by me or others who were\nunder confidentiality obligations as to the item or items involved or (ii) any information that I am required to disclose to, or by, any governmental or\njudicial authority; provided, however, that in such event I will give the Company prompt written notice thereof so that the Company Group may seek\nan appropriate protective order and/or waive in writing compliance with the confidentiality provisions of this Confidentiality Agreement\n(the “Confidentiality Agreement”).\n(b) Former or Concurrent Service Recipient Information. I represent that my performance of all of the terms of this\nConfidentiality Agreement as a director of the Company has not breached and will not breach any agreement to keep in confidence proprietary\ninformation, knowledge, or data acquired by me in confidence or trust prior or subsequent to the commencement of my service to the Company, and\nI will not disclose to any member of the Company Group, or induce any member of the Company Group to use, any developments, or\nconfidential or proprietary information or material I may have obtained in connection with employment with or service to any prior or concurrent\nemployer or service recipient in violation of a confidentiality agreement, nondisclosure agreement, or similar agreement with such prior or\nconcurrent employer or service recipient.\nSection 2. Returning Company Group Documents.\nI agree that, at the time of termination of my service to the Company for any reason, I will deliver to the Company (and will not keep in\nmy possession, recreate, or deliver to anyone else) any and all Confidential Information and all other documents, materials, information, and\nproperty otherwise belonging to the Company. I agree further that any property situated on the Company’s premises and owned by the Company (or\nany other member of the Company Group), including disks and other storage media, filing cabinets, and other work areas, is subject to inspection by\npersonnel of any member of the Company Group at any time with or without notice.\nSection 3. Disclosure of Agreement.\nAs long as it remains in effect, I will disclose the existence of this Confidentiality Agreement to any prospective employer, partner, co-\nventurer, investor, or lender prior to entering into an employment, partnership, or other business relationship with such person or entity.\nSection 4. Reasonableness of Restrictions.\nI acknowledge and recognize the highly competitive nature of the Company’s business, that access to Confidential Information renders\nme special and unique within the Company’s industry. In light of the foregoing, I recognize and acknowledge that the restrictions and limitations set\nforth in this Confidentiality Agreement are reasonable and valid in geographical and temporal scope and in all other respects and are essential to\nprotect the value of the business and assets of the Company Group. I acknowledge further that the restrictions and limitations set forth in this\nConfidentiality Agreement will not materially interfere with my ability to earn a living following the termination of my service to the Company and\nthat my ability to earn a livelihood without violating such restrictions is a material condition to my service to the Company.\nSection 5. Independence; Severability; Blue Pencil.\nEach of the rights enumerated in this Confidentiality Agreement shall be independent of the others and shall be in addition to and not in\nlieu of any other rights and remedies available to the Company Group at law or in equity. If any of the provisions of this Confidentiality Agreement\nor any part of any of them is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of this\nConfidentiality Agreement, which shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are held to\nbe invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, I agree that the court making such\ndetermination shall have the power to reduce the duration, scope, and/or area of such provision to the maximum and/or broadest duration, scope,\nand/or area permissible by law, and in its reduced form said provision shall then be enforceable.\n_2-\nSection 6. Injunctive Relief.\nI expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in this Confidentiality\nAgreement may result in substantial, continuing, and irreparable injury to the members of the Company Group. Therefore, I hereby agree that, in\naddition to any other remedy that may be available to the Company, any member of the Company Group shall be entitled to seek injunctive relief,\nspecific performance, or other equitable relief by a court of appropriate jurisdiction in the event of any breach or threatened breach of the terms of\nthis Confidentiality Agreement without the necessity of proving irreparable harm or injury as a result of such breach or threatened breach.\nSection 7. Cooperation.\nI agree that, following any termination of my service to the Company, I will continue to provide reasonable cooperation (to the extent\nthat it does not materially interfere with any other employment obligations at that time) to the Company and/or any other member of the Company\nGroup and its or their respective counsel in connection with any investigation, administrative proceeding, or litigation relating to any matter that\noccurred during my service to the Company in which I was involved or of which I have knowledge. As a condition of such cooperation, the\nCompany shall reimburse me for reasonable out-of-pocket expenses incurred at the request of the Company with respect to my compliance with this\nparagraph. I also agree that, in the event that I am subpoenaed by any person or entity (including, but not limited to, any government agency) to give\ntestimony or provide documents (in a deposition, court proceeding, or otherwise) that in any way relates to my service to the Company and/or any\nother member of the Company Group, I will give prompt notice of such request to the Company and will make no disclosure until the Company\nand/or the other member of the Company Group has had a reasonable opportunity to contest the right of the requesting person or entity to such\ndisclosure.\nSection 8. General Provisions.\n(a) Governing Law and Jurisdiction. EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE VALIDITY,\nINTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS CONFIDENTIALITY AGREEMENT IS GOVERNED BY AND IS\nTO BE CONSTRUED UNDER THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE\nPERFORMED IN THAT STATE, WITHOUT REGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR\nRELATING TO THIS CONFIDENTIALITY AGREEMENT OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN\nTHE UNITED STATES DISTRICT COURT FOR THE STATE OF DELAWARE, TO THE EXTENT FEDERAL JURISDICTION EXISTS, AND\nIN ANY COURT SITTING IN DELAWARE, BUT ONLY IN THE EVENT FEDERAL JURISDICTION DOES NOT EXIST, AND ANY\nAPPLICABLE APPELLATE COURTS. BY EXECUTION OF THIS CONFIDENTIALITY AGREEMENT, THE PARTIES HERETO, AND\nTHEIR RESPECTIVE AFFILIATES, CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, AND\n_3-\nWAIVE ANY RIGHT TO CHALLENGE JURISDICTION OR VENUE IN SUCH COURT WITH REGARD TO ANY SUIT, ACTION, OR\nPROCEEDING UNDER OR IN CONNECTION WITH THIS CONFIDENTIALITY AGREEMENT. EACH PARTY TO THIS\nCONFIDENTIALITY AGREEMENT ALSO HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT,\nACTION, OR PROCEEDING UNDER OR IN CONNECTION WITH THIS CONFIDENTIALITY AGREEMENT.\n(b) Entire Agreement. This Confidentiality Agreement sets forth the entire agreement and understanding between the Company\nand me relating to the subject matter herein and merges all prior discussions between us. No modification or amendment to this Confidentiality\nAgreement, nor any waiver of any rights under this Confidentiality Agreement, will be effective unless in writing signed by the party to be charged.\nAny subsequent change or changes in my duties, obligations, rights, or compensation will not affect the validity or scope of this Confidentiality\nAgreement.\n \n(c) No Right of Continued Service. I acknowledge and agree that nothing contained herein shall be construed as granting me any\nright to continued service to the Company, and the right of the Company to terminate my service at any time and for any reason, with or without\ncause, is specifically reserved.\n(d) Successors and Assigns. This Confidentiality Agreement will be binding upon my heirs, executors, administrators, and other\nlegal representatives and will be for the benefit of the Company, its successors, and its assigns. I expressly acknowledge and agree that this\nConfidentiality Agreement may be assigned by the Company without my consent to any other member of the Company Group as well as any\npurchaser of all or substantially all of the assets or stock of the Company, whether by purchase, merger, or other similar corporate transaction.\n(e) Survival. The provisions of this Confidentiality Agreement shall survive the termination of my service to the Company and/or\nthe assignment of this Confidentiality Agreement by the Company to any successor in interest or other assignee.\n* * *\nI, Andrew Prozes, have executed this Confidentiality and Confidentiality Agreement on the respective date set forth below:\nDate: May 5, 2011 /s/ Andrew Prozes\n(Signature)\nAndrew Prozes\n(Type/Print Name)	EX-10.3 4 lex103.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT 10.3\nCONFIDENTIALITY AGREEMENT\nAs a condition of my becoming a member of the Board of Directors of Interactive Data Corporation, a Delaware corporation (the\n"Company."), and in consideration of my service to the Company as a director and my receipt of the compensation now and hereafter paid to me by\nthe Company, I agree to the following:\nSection 1. Confidential Information.\n(a) Company. Group Information. I acknowledge that, during the course of my service to the Company, I will have access to\ninformation about the Company and its direct and indirect parents and subsidiaries (collectively, the "Company Group") and that my service to the\nCompany shall bring me into close contact with confidential and proprietary information of the Company Group. In recognition of the foregoing, I\nagree, at all times during the term of my service to the Company and for the ten (10) year period following my termination of service to the\nCompany Group for any reason, to hold in confidence, and not to use, except for the benefit of the Company Group, or to disclose to any person,\nfirm, corporation, or other entity without written authorization of the Company, any Confidential Information that I obtain or create. I further agree\nnot to make copies of such Confidential Information except as authorized by the Company. I understand that "Confidential Information" means\ninformation that the Company Group has developed, acquired, created, compiled, discovered, or owned or will develop, acquire, create, compile,\ndiscover, or own, that has value in or to the business of the Company Group that is not generally known and that the Company wishes to maintain as\nconfidential. I understand that Confidential Information includes, but is not limited to, any and all non-public information that relates to the actual or\nanticipated business and/or products, research, or development of the Company, or to the Company's technical data, trade secrets, or know-how,\nincluding, but not limited to, research, product plans, or other information regarding the Company's products or services and markets, customer lists,\nand customers, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration\ninformation, marketing, finances, and other business information disclosed by the Company either directly or indirectly in writing, orally, or\nby\ndrawings or inspection of premises, parts, equipment, or other Company property. Notwithstanding the foregoing, Confidential Information shall\nnot\ninclude (i) any of the foregoing items that have become publicly and widely known through no unauthorized disclosure by me or others who were\njudicial authority; provided, however, that in such event I will give the Company prompt written notice thereof so that the Company Group may seek or\nunder confidentiality obligations as to the item or items involved or (ii) any information that I am required to disclose to, or by, any governmental\nan appropriate protective order and/or waive in writing compliance with the confidentiality provisions of this Confidentiality Agreement\n(the "Confidentiality Agreement").\n(b) Former or Concurrent Service Recipient Information. I represent that my performance of all of the terms of this\nConfidentiality Agreement as a director of the Company has not breached and will not breach any agreement to keep in confidence proprietary\ninformation, knowledge, or data acquired by me in confidence or trust prior or subsequent to the commencement of my service to the Company,\nand\nI will not disclose to any member of the Company Group, or induce any member of the Company Group to use, any developments, or\nconfidential or proprietary information or material I may have obtained in connection with employment with or service to any prior or concurrent\nemployer or service recipient in violation of a confidentiality agreement, nondisclosure agreement, or similar agreement with such prior or\nconcurrent employer or service recipient.\nSection 2. Returning Company Group Documents.\nI agree that, at the time of termination of my service to the Company for any reason, I will deliver to the Company (and will not keep in\nmy possession, recreate, or deliver to anyone else) any and all Confidential Information and all other documents, materials, information, and\nproperty otherwise belonging to the Company. I agree further that any property situated on the Company's premises and owned by the Company (or\nany other member of the Company Group), including disks and other storage media, filing cabinets, and other work areas, is subject to inspection\nby\npersonnel of any member of the Company Group at any time with or without notice.\nSection 3. Disclosure of Agreement.\nAs long as it remains in effect, I will disclose the existence of this Confidentiality Agreement to any prospective employer, partner, CO-\nventurer, investor, or lender prior to entering into an employment, partnership, or other business relationship with such person or entity.\nSection 4. Reasonableness of Restrictions.\nI acknowledge and recognize the highly competitive nature of the Company's business, that access to Confidential Information renders\nme special and unique within the Company's industry. In light of the foregoing, I recognize and acknowledge that the restrictions and limitations set\nforth in this Confidentiality Agreement are reasonable and valid in geographical and temporal scope and in all other respects and are essential to\nprotect the value of the business and assets of the Company Group. I acknowledge further that the restrictions and limitations set forth in this\nConfidentiality Agreement will not materially interfere with my ability to earn a living following the termination of my service to the Company and\nthat my ability to earn a livelihood without violating such restrictions is a material condition to my service to the Company.\nSection 5. Independence; Severability; Blue Pencil.\nEach of the rights enumerated in this Confidentiality Agreement shall be independent of the others and shall be in addition to and not in\nlieu of any other rights and remedies available to the Company Group at law or in equity. If any of the provisions of this Confidentiality Agreement\nor any part of any of them is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of this\nConfidentiality Agreement, which shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are held to\nbe\ninvalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, I agree that the court making such\ndetermination shall have the power to reduce the duration, scope, and/or area of such provision to the maximum and/or broadest duration, scope,\nand/or area permissible by law, and in its reduced form said provision shall then be enforceable.\n2\nSection 6. Injunctive Relief.\nI expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in this Confidentiality\nAgreement may result in substantial, continuing, and irreparable injury to the members of the Company Group. Therefore, I hereby agree that, in\naddition to any other remedy that may be available to the Company, any member of the Company Group shall be entitled to seek injunctive relief,\nspecific performance, or other equitable relief by a court of appropriate jurisdiction in the event of any breach or threatened breach of the terms of\nthis Confidentiality Agreement without the necessity of proving irreparable harm or injury as a result of such breach or threatened breach.\nSection 7. Cooperation\nI agree that, following any termination of my service to the Company, I will continue to provide reasonable cooperation (to the extent\nthat it does not materially interfere with any other employment obligations at that time) to the Company and/or any other member of the Company\nGroup and its or their respective counsel in connection with any investigation, administrative proceeding, or litigation relating to any matter that\noccurred during my service to the Company in which I was involved or of which I have knowledge. As a condition of such cooperation, the\nCompany shall reimburse me for reasonable out-of-pocket expenses incurred at the request of the Company with respect to my compliance with this\nparagraph. I also agree that, in the event that I am subpoenaed by any person or entity (including, but not limited to, any government agency) to give\ntestimony or provide documents (in a deposition, court proceeding, or otherwise) that in any way relates to my service to the Company and/or any\nother member of the Company Group, I will give prompt notice of such request to the Company and will make no disclosure until the Company\nand/or the other member of the Company Group has had a reasonable opportunity to contest the right of the requesting person or entity to such\ndisclosure.\nSection 8. General Provisions.\n(a) Governing Law and Jurisdiction. EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE VALIDITY,\nINTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS CONFIDENTIALITY AGREEMENT IS GOVERNED BY AND IS\nTO BE CONSTRUED UNDER THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE\nPERFORMED IN THAT STATE, WITHOUT REGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR\nRELATING TO THIS CONFIDENTIALITY AGREEMENT OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN\nTHE UNITED STATES DISTRICT COURT FOR THE STATE OF DELAWARE, TO THE EXTENT FEDERAL JURISDICTION EXISTS, AND\nIN ANY COURT SITTING IN DELAWARE, BUT ONLY IN THE EVENT FEDERAL JURISDICTION DOES NOT EXIST, AND ANY\nAPPLICABLE APPELLATE COURTS. BY EXECUTION OF THIS CONFIDENTIALITY AGREEMENT, THE PARTIES HERETO, AND\nTHEIR RESPECTIVE AFFILIATES, CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, AND\n- 3 -\nWAIVE ANY RIGHT TO CHALLENGE JURISDICTION OR VENUE IN SUCH COURT WITH REGARD TO ANY SUIT, ACTION, OR\nPROCEEDING UNDER OR IN CONNECTION WITH THIS CONFIDENTIALITY AGREEMENT. EACH PARTY TO THIS\nCONFIDENTIALITY AGREEMENT ALSO HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT,\nACTION, OR PROCEEDING UNDER OR IN CONNECTION WITH THIS CONFIDENTIALITY AGREEMENT.\n(b)\nEntire Agreement. This Confidentiality Agreement sets forth the entire agreement and understanding between the\nCompany\nand me relating to the subject matter herein and merges all prior discussions between us. No modification or amendment to this Confidentiality\nAgreement, nor any waiver of any rights under this Confidentiality Agreement, will be effective unless in writing signed by the party to be charged.\nAny subsequent change or changes in my duties, obligations, rights, or compensation will not affect the validity or scope of this Confidentiality\nAgreement.\n(c) No Right of Continued Service. I acknowledge and agree that nothing contained herein shall be construed as granting me any\nright to continued service to the Company, and the right of the Company to terminate my service at any time and for any reason, with or without\ncause, is specifically reserved.\n(d) Successors and Assigns. This Confidentiality Agreement will be binding upon my heirs, executors, administrators, and other\nlegal representatives and will be for the benefit of the Company, its successors, and its assigns. I expressly acknowledge and agree that this\nConfidentiality Agreement may be assigned by the Company without my consent to any other member of the Company Group as well as any\npurchaser of all or substantially all of the assets or stock of the Company, whether by purchase, merger, or other similar corporate transaction.\n(e) Survival. The provisions of this Confidentiality Agreement shall survive the termination of my service to the Company and/or\nthe assignment of this Confidentiality Agreement by the Company to any successor in interest or other assignee.\nI, Andrew Prozes, have executed this Confidentiality and Confidentiality Agreement on the respective date set forth below:\nDate: May_ 2011\n/s/ Andrew Prozes\n(Signature)\nAndrew Prozes\n(Type/Print Name)\n4	EX-10.3 4 dex103.htm CONFIDENTIALITY AGREEMENT\nEXHIBIT 10.3\nCONFIDENTIALITY AGREEMENT\nAs a condition of my becoming a member of the Board of Directors of Interactive Data Corporation, a Delaware corporation (the\n“Company”), and in consideration of my service to the Company as a director and my receipt of the compensation now and hereafter paid to me by\nthe Company, I agree to the following:\nSection 1. Confidential Information.\n(a) Company Group Information. I acknowledge that, during the course of my service to the Company, I will have access to\ninformation about the Company and its direct and indirect parents and subsidiaries (collectively, the “Company Group”) and that my service to the\nCompany shall bring me into close contact with confidential and proprietary information of the Company Group. In recognition of the foregoing, I\nagree, at all times during the term of my service to the Company and for the ten (10) year period following my termination of service to the\nCompany Group for any reason, to hold in confidence, and not to use, except for the benefit of the Company Group, or to disclose to any person,\nfirm, corporation, or other entity without written authorization of the Company, any Confidential Information that I obtain or create. I further agree\nnot to make copies of such Confidential Information except as authorized by the Company. I understand that “Confidential Information” means\ninformation that the Company Group has developed, acquired, created, compiled, discovered, or owned or will develop, acquire, create, compile,\ndiscover, or own, that has value in or to the business of the Company Group that is not generally known and that the Company wishes to maintain as\nconfidential. I understand that Confidential Information includes, but is not limited to, any and all non-public information that relates to the actual or\nanticipated business and/or products, research, or development of the Company, or to the Company’s technical data, trade secrets, or know-how,\nincluding, but not limited to, research, product plans, or other information regarding the Company’s products or services and markets, customer lists,\nand customers, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration\ninformation, marketing, finances, and other business information disclosed by the Company either directly or indirectly in writing, orally, or by\ndrawings or inspection of premises, parts, equipment, or other Company property. Notwithstanding the foregoing, Confidential Information shall not\ninclude (i) any of the foregoing items that have become publicly and widely known through no unauthorized disclosure by me or others who were\nunder confidentiality obligations as to the item or items involved or (ii) any information that I am required to disclose to, or by, any governmental or\njudicial authority; provided, however, that in such event I will give the Company prompt written notice thereof so that the Company Group may seek\nan appropriate protective order and/or waive in writing compliance with the confidentiality provisions of this Confidentiality Agreement\n(the “Confidentiality Agreement”).\n(b) Former or Concurrent Service Recipient Information. I represent that my performance of all of the terms of this\nConfidentiality Agreement as a director of the Company has not breached and will not breach any agreement to keep in confidence proprietary\ninformation, knowledge, or data acquired by me in confidence or trust prior or subsequent to the commencement of my service to the Company, and\nI will not disclose to any member of the Company Group, or induce any member of the Company Group to use, any developments, or\nconfidential or proprietary information or material I may have obtained in connection with employment with or service to any prior or concurrent\nemployer or service recipient in violation of a confidentiality agreement, nondisclosure agreement, or similar agreement with such prior or\nconcurrent employer or service recipient.\nSection 2. Returning Company Group Documents.\nI agree that, at the time of termination of my service to the Company for any reason, I will deliver to the Company (and will not keep in\nmy possession, recreate, or deliver to anyone else) any and all Confidential Information and all other documents, materials, information, and\nproperty otherwise belonging to the Company. I agree further that any property situated on the Company’s premises and owned by the Company (or\nany other member of the Company Group), including disks and other storage media, filing cabinets, and other work areas, is subject to inspection by\npersonnel of any member of the Company Group at any time with or without notice.\nSection 3. Disclosure of Agreement.\nAs long as it remains in effect, I will disclose the existence of this Confidentiality Agreement to any prospective employer, partner, co-\nventurer, investor, or lender prior to entering into an employment, partnership, or other business relationship with such person or entity.\nSection 4. Reasonableness of Restrictions.\nI acknowledge and recognize the highly competitive nature of the Company’s business, that access to Confidential Information renders\nme special and unique within the Company’s industry. In light of the foregoing, I recognize and acknowledge that the restrictions and limitations set\nforth in this Confidentiality Agreement are reasonable and valid in geographical and temporal scope and in all other respects and are essential to\nprotect the value of the business and assets of the Company Group. I acknowledge further that the restrictions and limitations set forth in this\nConfidentiality Agreement will not materially interfere with my ability to earn a living following the termination of my service to the Company and\nthat my ability to earn a livelihood without violating such restrictions is a material condition to my service to the Company.\nSection 5. Independence; Severability; Blue Pencil.\nEach of the rights enumerated in this Confidentiality Agreement shall be independent of the others and shall be in addition to and not in\nlieu of any other rights and remedies available to the Company Group at law or in equity. If any of the provisions of this Confidentiality Agreement\nor any part of any of them is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of this\nConfidentiality Agreement, which shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are held to\nbe invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, I agree that the court making such\ndetermination shall have the power to reduce the duration, scope, and/or area of such provision to the maximum and/or broadest duration, scope,\nand/or area permissible by law, and in its reduced form said provision shall then be enforceable.\n-2-\nSection 6. Injunctive Relief.\nI expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in this Confidentiality\nAgreement may result in substantial, continuing, and irreparable injury to the members of the Company Group. Therefore, I hereby agree that, in\naddition to any other remedy that may be available to the Company, any member of the Company Group shall be entitled to seek injunctive relief,\nspecific performance, or other equitable relief by a court of appropriate jurisdiction in the event of any breach or threatened breach of the terms of\nthis Confidentiality Agreement without the necessity of proving irreparable harm or injury as a result of such breach or threatened breach.\nSection 7. Cooperation.\nI agree that, following any termination of my service to the Company, I will continue to provide reasonable cooperation (to the extent\nthat it does not materially interfere with any other employment obligations at that time) to the Company and/or any other member of the Company\nGroup and its or their respective counsel in connection with any investigation, administrative proceeding, or litigation relating to any matter that\noccurred during my service to the Company in which I was involved or of which I have knowledge. As a condition of such cooperation, the\nCompany shall reimburse me for reasonable out-of-pocket expenses incurred at the request of the Company with respect to my compliance with this\nparagraph. I also agree that, in the event that I am subpoenaed by any person or entity (including, but not limited to, any government agency) to give\ntestimony or provide documents (in a deposition, court proceeding, or otherwise) that in any way relates to my service to the Company and/or any\nother member of the Company Group, I will give prompt notice of such request to the Company and will make no disclosure until the Company\nand/or the other member of the Company Group has had a reasonable opportunity to contest the right of the requesting person or entity to such\ndisclosure.\nSection 8. General Provisions.\n(a) Governing Law and Jurisdiction. EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE VALIDITY,\nINTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS CONFIDENTIALITY AGREEMENT IS GOVERNED BY AND IS\nTO BE CONSTRUED UNDER THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE\nPERFORMED IN THAT STATE, WITHOUT REGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR\nRELATING TO THIS CONFIDENTIALITY AGREEMENT OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN\nTHE UNITED STATES DISTRICT COURT FOR THE STATE OF DELAWARE, TO THE EXTENT FEDERAL JURISDICTION EXISTS, AND\nIN ANY COURT SITTING IN DELAWARE, BUT ONLY IN THE EVENT FEDERAL JURISDICTION DOES NOT EXIST, AND ANY\nAPPLICABLE APPELLATE COURTS. BY EXECUTION OF THIS CONFIDENTIALITY AGREEMENT, THE PARTIES HERETO, AND\nTHEIR RESPECTIVE AFFILIATES, CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, AND\n-3-\nWAIVE ANY RIGHT TO CHALLENGE JURISDICTION OR VENUE IN SUCH COURT WITH REGARD TO ANY SUIT, ACTION, OR\nPROCEEDING UNDER OR IN CONNECTION WITH THIS CONFIDENTIALITY AGREEMENT. EACH PARTY TO THIS\nCONFIDENTIALITY AGREEMENT ALSO HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT,\nACTION, OR PROCEEDING UNDER OR IN CONNECTION WITH THIS CONFIDENTIALITY AGREEMENT.\n(b) Entire Agreement. This Confidentiality Agreement sets forth the entire agreement and understanding between the Company\nand me relating to the subject matter herein and merges all prior discussions between us. No modification or amendment to this Confidentiality\nAgreement, nor any waiver of any rights under this Confidentiality Agreement, will be effective unless in writing signed by the party to be charged.\nAny subsequent change or changes in my duties, obligations, rights, or compensation will not affect the validity or scope of this Confidentiality\nAgreement.\n(c) No Right of Continued Service. I acknowledge and agree that nothing contained herein shall be construed as granting me any\nright to continued service to the Company, and the right of the Company to terminate my service at any time and for any reason, with or without\ncause, is specifically reserved.\n(d) Successors and Assigns. This Confidentiality Agreement will be binding upon my heirs, executors, administrators, and other\nlegal representatives and will be for the benefit of the Company, its successors, and its assigns. I expressly acknowledge and agree that this\nConfidentiality Agreement may be assigned by the Company without my consent to any other member of the Company Group as well as any\npurchaser of all or substantially all of the assets or stock of the Company, whether by purchase, merger, or other similar corporate transaction.\n(e) Survival. The provisions of this Confidentiality Agreement shall survive the termination of my service to the Company and/or\nthe assignment of this Confidentiality Agreement by the Company to any successor in interest or other assignee.\n*\n*\n*\nI, Andrew Prozes, have executed this Confidentiality and Confidentiality Agreement on the respective date set forth below:\nDate: May 5, 2011\n/s/ Andrew Prozes\n(Signature)\nAndrew Prozes\n(Type/Print Name)\n-4-
+22a9ca6c51304892ecda7c2a7c247d45.pdf	effective_date jurisdiction party term	EX-99.(D)(3)(I) 9 dex99d3i.htm CONFIDENTIALITY AGREEMENT, DATED MARCH 15, 2007\nExhibit (d)(3)(i)\nLOGO\nMarch 15, 2007\nMr. Thomas Hook\nPresident and CEO\nGreatbatch, Inc.\n9645 Wehrle Drive\nClarence, NY 14031\nDear Mr. Hook:\nEnpath Medical, Inc. (“Enpath” or “the Company”) has engaged Greene Holcomb & Fisher (“GH&F”) to advise the Company with respect to a\npotential negotiated transaction involving a potential business combination (the “Transaction”). In connection with the consideration of a Transaction\nwith the Company, the Company is prepared to furnish Greatbatch, Inc. (“you” or “Greatbatch”) with information concerning the Company’s\nbusiness, all of which is deemed confidential and proprietary, subject to the exceptions outlined below. This information is collectively referred to as\nthe “Evaluation Material.”\n1. Confidentiality\nTo maintain the confidentiality of the Evaluation Material, you and each individual or entity with access to the Evaluation Material agree:\na. not to use any Evaluation Material or notes, summaries, or other material derived from the Evaluation Material (collectively, “Notes”)\nexcept to determine whether you wish to propose to enter into a Transaction with the Company and the terms of a Transaction;\nb. not to disclose any Evaluation Material or Notes other than to those of your and your affiliates’ officers, directors, employees, advisors and\nrepresentatives (collectively, “Representatives”) with a need to know the information and who agree to be bound by the terms of this Agreement; and\nc. not to disclose that the Evaluation Material has been made available, that you or your Representatives have inspected any Evaluation\nMaterial, or that you and the Company may be considering a Transaction or have had, are having or propose to have any discussions with respect\nthereto.\n2. Non-Disclosure by ENPATH and GH&F\nThe Company and GH&F agree not to disclose that the Evaluation Material has been made available to you, or that you may be considering the\nTransaction, or that discussions or negotiations are taking or have taken place with you concerning the Transaction unless the disclosure is required\nby law, regulation or a listing agreement with a securities exchange.\n3. Termination by ENPATH\nThe Company (directly or through GH&F) may elect at any time to terminate further access by you to Evaluation Material. You agree that upon any\ntermination, you will promptly (and in any case within five business days of the Company’s or GH&F’s request) return to GH&F or the Company all\nEvaluation Material except Notes, cause all Notes to be destroyed, including any Notes or Evaluation Material in electronic form and confirm in\nwriting to the Company that all the material has been returned or destroyed in compliance with this Agreement, except that your investment banker\nmay retain one copy of any such Evaluation Material as may be required under internal record retention policies and procedures for legal,\ncompliance or regulatory purposes, in which case the restrictions herein on its use and disclosure of any Evaluation Material shall survive. No\ntermination will affect your obligations or\nphone :: 763.951 .8181\nfax :: 763.559.0148\nmail :: Enpath Medical, Inc.\ntoll free :: 866.951 .8181\nweb\n:: enpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 2\nthose of your Representatives under this Agreement, all of which obligations will continue in effect. You will be permitted to maintain a log that\nidentifies the Evaluation Material returned in accordance with this paragraph.\n4. Exceptions\nThis Agreement does not apply to portions of the Evaluation Material if the information\ni. becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation of this\nAgreement,\nii.\nwas available to you on a non-confidential basis or was already in the public domain prior to its disclosure to you by the Company or its\nrepresentatives,\niii. becomes available to you on a non-confidential basis from a source, other than the Company or its representatives, if the source is not\nknown to you to be prohibited from disclosing the information to you by a contractual, legal, fiduciary or other obligation to maintain\nconfidentiality to the Company or its representatives,\niv. as demonstrated by reasonable proof, was developed by or on behalf of you (or your Representatives) independent of and without\nreference to the Evaluation Material.\n5. Required Disclosure\nIf you or your Representatives are requested, legally compelled or required (by oral questions, interrogatories, requests for information, subpoena,\ncivil investigative demand, or similar court or governmental process) to disclose any Evaluation Material or Notes, you agree that you will provide\nthe Company with prompt written notice of the request so that the Company may seek an appropriate protective order or waive your compliance\nwith the provisions of this Agreement. You agree to reasonably cooperate with the Company, at the Company’s sole expense, in obtaining an\nappropriate protective order. If, failing the entry of a protective order or the receipt of a waiver hereunder, you or your Representatives are, in the\nopinion of your or your Representatives’ counsel, as the case may be, required or compelled to disclose Evaluation Material or Notes, you may\ndisclose only that portion of the information that is legally required without liability hereunder if you agree to exercise your reasonable efforts to\nobtain assurance that confidential treatment will be accorded that information.\n6. Non- Solicitation\nFor a period of one year following the date of the Agreement, you will not, directly or indirectly, solicit for employment or hire any officer, director,\nor employee of the Company or any of its subsidiaries with whom you have had contact or who became known to you in connection with your\nconsideration of the Transaction, except that you will not be precluded from hiring any employee who (i) responds to any public advertisement or\ngeneral search placed by you, or (ii) has been terminated by the Company or its subsidiaries prior to commencement of employment discussions\nbetween you and the officer, director, or employee.\nGreatbatch further agrees that it will not, for a period of one year from the date of this Agreement, use the Evaluation Material to contact the clients\nof ENPATH. ENPATH acknowledges that Greatbatch operates a similar businesses that may compete with ENPATH customers and that nothing\ncontained in this Agreement will prohibit Greatbatch from continuing to contact these customers in the normal course of business.\nphone :: 763.951 .8181\nfax :: 763.559.0148\nmail :: Enpath Medical, Inc.\ntoll free :: 866.951 .8181\nweb\n:: enpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 3\n7. Standstill\nYou agree that until one year from the date of this Agreement, you will not without the prior approval of the Board of Directors of the Company,\ndirectly or indirectly through any third party:\ni.\nacquire or make any proposal to acquire any securities or property of the Company,\nii. propose to enter into any merger or business combination involving the Company or purchase a material portion of the assets of the\nCompany,\niii. make or participate in any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of any\nsecurities of the Company,\niv. form, join or participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934) with respect to\nany voting securities of the Company,\nv.\notherwise act or seek to control or influence the management, Board of Directors or policies of the Company; however, this clause does\nnot prohibit ordinary course of business transactions between you and the Company that are not in connection with a Transaction,\nvi. disclose any intention, plan or arrangement inconsistent with the foregoing, or\nvii. take any action that might require the Company to make a public announcement regarding the possibility of a business combination or\nmerger.\nYou also agree during the one-year period, not to publicly request the Company (or its directors, officers, employees, agents or representatives) to\namend or waive any provision of this paragraph. This paragraph 7 does not prohibit you from confidential discussions with the management of the\nCompany or its representatives concerning a possible Transaction.\n8. No Representations\nYou understand and agree that none of the Company, GH&F, or their respective affiliates or representatives make any representations or warranties,\nexpress or implied, with respect to any of the Evaluation Material, except as is explicitly set forth in the Evaluation Material. You also agree that\nnone of the Company, GH&F, or their respective affiliates or representatives will have liability to you or your Representatives resulting from the\nselection or use of the Evaluation Material by you or your Representatives.\n9. No Definite Agreement\nYou agree that no contract or agreement providing for any Transaction will be deemed to exist between you and the Company unless and until you\nand the Company execute and deliver a final definitive agreement (a “Transaction Agreement”), You also agree that unless and until you and the\nCompany have executed and delivered a Transaction Agreement, neither you nor the Company will be under any legal obligation of any kind\nwhatsoever with respect to a Transaction by virtue of this Agreement, except for the matters specifically agreed to in this Agreement. You further\nacknowledge and agree that the Company reserves the right, in its sole discretion, to reject any and all proposals made by you or your\nRepresentatives with regard to a Transaction, and to terminate discussions and negotiations with you at any time. You further understand that the\nCompany will be free to establish and change any process or procedure with respect to a Transaction as the Company in its sole discretion may\ndetermine (including, without limitation, negotiating with any other interested party and entering into a final definitive agreement relating to a\nTransaction with any other party without prior notice to you or any other person).\n10. Injunctive Relief\nYou further understand and agreed that money damages may not be a sufficient remedy for any breach of this Agreement and that the Company will\nbe entitled to seek specific performance and injunctive or other equitable\nphone :: 763.951 .8181\nfax :: 763.559.0148\nmail :: Enpath Medical, Inc.\ntoll free :: 866.951 .8181\nweb\n:: enpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 4\nrelief as a remedy for any such breach. This remedy will not be deemed to be the exclusive remedy for breach of this Agreement but is in addition to\nall other remedies available at law or equity to the Company.\n11. Severability:\nIf any provision of this Agreement is held to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force and\neffect without being invalidated.\n12. Governing Law:\nThis Agreement is to be construed, performed and enforced in accordance with, and governed by, the internal laws of the State of Minnesota,\nwithout giving effect to its principles of conflicts of law.\n13. Notice:\nAll Notices, demands and requests required or permitted to be given under this Agreement must be in writing and directed to the addresses indicated\nbelow, or such other address as indicated by the parties, from time to time. Each notice or other communication will be deemed given (a) when\npersonally delivered or sent by facsimile transmission to the party to be given the notice or other communication at the address indicated below, or\n(b) on the business day following the business day that the notice or other communication is sent by overnight courier or next day delivery, to the\naddress indicated below.\nIF TO GREATBATCH:\nGreatbatch, Inc.\n9645 Wehrle Drive\nClarence, NY 14031\nAttn: Thomas Hook\n(t) (716) 759-5671\n(f) (716) 759-5672\nIF TO ENPATH:\nEnpath Medical, Inc.\n2300 Berkshire Lane North\nMinneapolis, MN 55441\nAttn: James D. Hartman\n(t) (763) 559-2613\n(f) (763) 559-0148\n14. General:\nThis Agreement embodies the entire understanding and agreement between the Parties relating to the subject matter hereof, and supersedes any and\nall prior agreements and understandings relating thereto. No change, modification, alteration or addition to any provision of this Agreement will be\nbinding unless agreed to in writing by an authorized representative on behalf of each Party to this Agreement.\nThe parties understand and agree that no failure of delay by the other party in exercising any right, power or privilege under this Agreement will\noperate as a waiver thereof nor will any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege\nhereunder.\nphone :: 763.951 .8181\nfax :: 763.559.0148\nmail :: Enpath Medical, Inc.\ntoll free :: 866.951 .8181\nweb\n:: enpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 5\nIf you are in agreement with the foregoing, please sign and return one copy of this Agreement, it being understood that all counterpart copies will\nconstitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nENPATH MEDICAL, INC.\nBy: /s/ James D. Hartman\nName: James D. Hartman\nTitle: Chairman of the Board\nAccepted as of the\nDate first above written:\nGREATBATCH, INC.\nBy: /s/ Thomas Hook\nName: Thomas Hook\nTitle: President and CEO\nphone :: 763.951 .8181\nfax :: 763.559.0148\nmail :: Enpath Medical, Inc.\ntoll free :: 866.951 .8181\nweb\n:: enpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA	EX-99.(D)(3)(I) 9 dex99d3i.htm CONFIDENTIALITY AGREEMENT, DATED MARCH 15, 2007\nExhibit (d)(3)(i)\n. LOGO\nMarch 15, 2007\nMr. Thomas Hook\nPresident and CEO\nGreatbatch, Inc.\n9645 Wehrle Drive\nClarence, NY 14031\nDear Mr. Hook:\nEnpath Medical, Inc. (“Enpath” or “the Company”) has engaged Greene Holcomb & Fisher (“GH&EF”) to advise the Company with respect to a\npotential negotiated transaction involving a potential business combination (the “Transaction”). In connection with the consideration of a Transaction\nwith the Company, the Company is prepared to furnish Greatbatch, Inc. (“you” or “Greatbatch”) with information concerning the Company’s\nbusiness, all of which is deemed confidential and proprietary, subject to the exceptions outlined below. This information is collectively referred to as\nthe “Evaluation Material.”\n1. Confidentiality\nTo maintain the confidentiality of the Evaluation Material, you and each individual or entity with access to the Evaluation Material agree:\na. not to use any Evaluation Material or notes, summaries, or other material derived from the Evaluation Material (collectively, “Notes”)\nexcept to determine whether you wish to propose to enter into a Transaction with the Company and the terms of a Transaction;\nb. not to disclose any Evaluation Material or Notes other than to those of your and your affiliates’ officers, directors, employees, advisors and\nrepresentatives (collectively, “Representatives”) with a need to know the information and who agree to be bound by the terms of this Agreement; and\nc. not to disclose that the Evaluation Material has been made available, that you or your Representatives have inspected any Evaluation\nMaterial, or that you and the Company may be considering a Transaction or have had, are having or propose to have any discussions with respect\nthereto.\n2. Non-Disclosure by ENPATH and GH&F\nThe Company and GH&F agree not to disclose that the Evaluation Material has been made available to you, or that you may be considering the\nTransaction, or that discussions or negotiations are taking or have taken place with you concerning the Transaction unless the disclosure is required\nby law, regulation or a listing agreement with a securities exchange.\n3. Termination by ENPATH\nThe Company (directly or through GH&F) may elect at any time to terminate further access by you to Evaluation Material. You agree that upon any\ntermination, you will promptly (and in any case within five business days of the Company’s or GH&EF’s request) return to GH&F or the Company all\nEvaluation Material except Notes, cause all Notes to be destroyed, including any Notes or Evaluation Material in electronic form and confirm in\nwriting to the Company that all the material has been returned or destroyed in compliance with this Agreement, except that your investment banker\nmay retain one copy of any such Evaluation Material as may be required under internal record retention policies and procedures for legal,\ncompliance or regulatory purposes, in which case the restrictions herein on its use and disclosure of any Evaluation Material shall survive. No\ntermination will affect your obligations or\nphone :: 763.951.8181 fax 1 763.559.0148 mail :: Enpath Medical, Inc.\ntoll free :: 866.951.8181 web ::  enpathmedical.com 2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 2\nthose of your Representatives under this Agreement, all of which obligations will continue in effect. You will be permitted to maintain a log that\nidentifies the Evaluation Material returned in accordance with this paragraph.\n4.  Exceptions\nThis Agreement does not apply to portions of the Evaluation Material if the information\nL. becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation of this\nAgreement,\nii.  was available to you on a non-confidential basis or was already in the public domain prior to its disclosure to you by the Company or its\nrepresentatives,\niii. becomes available to you on a non-confidential basis from a source, other than the Company or its representatives, if the source is not\nknown to you to be prohibited from disclosing the information to you by a contractual, legal, fiduciary or other obligation to maintain\nconfidentiality to the Company or its representatives,\niv.  as demonstrated by reasonable proof, was developed by or on behalf of you (or your Representatives) independent of and without\nreference to the Evaluation Material.\n5. Required Disclosure\nIf you or your Representatives are requested, legally compelled or required (by oral questions, interrogatories, requests for information, subpoena,\ncivil investigative demand, or similar court or governmental process) to disclose any Evaluation Material or Notes, you agree that you will provide\nthe Company with prompt written notice of the request so that the Company may seek an appropriate protective order or waive your compliance\nwith the provisions of this Agreement. You agree to reasonably cooperate with the Company, at the Company’s sole expense, in obtaining an\nappropriate protective order. If, failing the entry of a protective order or the receipt of a waiver hereunder, you or your Representatives are, in the\nopinion of your or your Representatives’ counsel, as the case may be, required or compelled to disclose Evaluation Material or Notes, you may\ndisclose only that portion of the information that is legally required without liability hereunder if you agree to exercise your reasonable efforts to\nobtain assurance that confidential treatment will be accorded that information.\n6. Non- Solicitation\nFor a period of one year following the date of the Agreement, you will not, directly or indirectly, solicit for employment or hire any officer, director,\nor employee of the Company or any of its subsidiaries with whom you have had contact or who became known to you in connection with your\nconsideration of the Transaction, except that you will not be precluded from hiring any employee who (i) responds to any public advertisement or\ngeneral search placed by you, or (ii) has been terminated by the Company or its subsidiaries prior to commencement of employment discussions\nbetween you and the officer, director, or employee.\nGreatbatch further agrees that it will not, for a period of one year from the date of this Agreement, use the Evaluation Material to contact the clients\nof ENPATH. ENPATH acknowledges that Greatbatch operates a similar businesses that may compete with ENPATH customers and that nothing\ncontained in this Agreement will prohibit Greatbatch from continuing to contact these customers in the normal course of business.\nphone :: 763.951.8181 fax 1 763.559.0148 mail :: Enpath Medical, Inc.\ntoll free :: 866.951.8181 web ::  enpathmedical.com 2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 3\n7. Standstill\nYou agree that until one year from the date of this Agreement, you will not without the prior approval of the Board of Directors of the Company,\ndirectly or indirectly through any third party:\ni acquire or make any proposal to acquire any securities or property of the Company,\nii.  propose to enter into any merger or business combination involving the Company or purchase a material portion of the assets of the\nCompany,\niii. make or participate in any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of any\nsecurities of the Company,\niv.  form, join or participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934) with respect to\nany voting securities of the Company,\nv.  otherwise act or seek to control or influence the management, Board of Directors or policies of the Company; however, this clause does\nnot prohibit ordinary course of business transactions between you and the Company that are not in connection with a Transaction,\nvi. disclose any intention, plan or arrangement inconsistent with the foregoing, or\nvii. take any action that might require the Company to make a public announcement regarding the possibility of a business combination or\nmerger.\nYou also agree during the one-year period, not to publicly request the Company (or its directors, officers, employees, agents or representatives) to\namend or waive any provision of this paragraph. This paragraph 7 does not prohibit you from confidential discussions with the management of the\nCompany or its representatives concerning a possible Transaction.\n8.  No Representations\nYou understand and agree that none of the Company, GH&F, or their respective affiliates or representatives make any representations or warranties,\nexpress or implied, with respect to any of the Evaluation Material, except as is explicitly set forth in the Evaluation Material. You also agree that\nnone of the Company, GH&F, or their respective affiliates or representatives will have liability to you or your Representatives resulting from the\nselection or use of the Evaluation Material by you or your Representatives.\n9.  No Definite Agreement\nYou agree that no contract or agreement providing for any Transaction will be deemed to exist between you and the Company unless and until you\nand the Company execute and deliver a final definitive agreement (a “Transaction Agreement”), You also agree that unless and until you and the\nCompany have executed and delivered a Transaction Agreement, neither you nor the Company will be under any legal obligation of any kind\nwhatsoever with respect to a Transaction by virtue of this Agreement, except for the matters specifically agreed to in this Agreement. You further\nacknowledge and agree that the Company reserves the right, in its sole discretion, to reject any and all proposals made by you or your\nRepresentatives with regard to a Transaction, and to terminate discussions and negotiations with you at any time. You further understand that the\nCompany will be free to establish and change any process or procedure with respect to a Transaction as the Company in its sole discretion may\ndetermine (including, without limitation, negotiating with any other interested party and entering into a final definitive agreement relating to a\nTransaction with any other party without prior notice to you or any other person).\n10. Injunctive Relief\nYou further understand and agreed that money damages may not be a sufficient remedy for any breach of this Agreement and that the Company will\nbe entitled to seek specific performance and injunctive or other equitable\nphone :: 763.951.8181 fax 1 763.559.0148 mail :: Enpath Medical, Inc.\ntoll free :: 866.951.8181 web ::  enpathmedical.com 2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 4\nrelief as a remedy for any such breach. This remedy will not be deemed to be the exclusive remedy for breach of this Agreement but is in addition to\nall other remedies available at law or equity to the Company.\n11.  Severability:\nIf any provision of this Agreement is held to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force and\neffect without being invalidated.\n12.  Governing Law:\nThis Agreement is to be construed, performed and enforced in accordance with, and governed by, the internal laws of the State of Minnesota,\nwithout giving effect to its principles of conflicts of law.\n13. Notice:\nAll Notices, demands and requests required or permitted to be given under this Agreement must be in writing and directed to the addresses indicated\nbelow, or such other address as indicated by the parties, from time to time. Each notice or other communication will be deemed given (a) when\npersonally delivered or sent by facsimile transmission to the party to be given the notice or other communication at the address indicated below, or\n(b) on the business day following the business day that the notice or other communication is sent by overnight courier or next day delivery, to the\naddress indicated below.\nIF TO GREATBATCH:\nGreatbatch, Inc.\n9645 Wehrle Drive\nClarence, NY 14031\nAttn: Thomas Hook\n(t) (716) 759-5671\n(f) (716) 759-5672\nIF TO ENPATH:\nEnpath Medical, Inc.\n2300 Berkshire Lane North\nMinneapolis, MN 55441\nAttn: James D. Hartman\n(t) (763) 559-2613\n(f) (763) 559-0148\n14. General:\nThis Agreement embodies the entire understanding and agreement between the Parties relating to the subject matter hereof, and supersedes any and\nall prior agreements and understandings relating thereto. No change, modification, alteration or addition to any provision of this Agreement will be\nbinding unless agreed to in writing by an authorized representative on behalf of each Party to this Agreement.\nThe parties understand and agree that no failure of delay by the other party in exercising any right, power or privilege under this Agreement will\noperate as a waiver thereof nor will any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege\nhereunder.\nphone :: 763.951.8181 fax 1 763.559.0148 mail :: Enpath Medical, Inc.\ntoll free :: 866.951.8181 web ::  enpathmedical.com 2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 5\nIf you are in agreement with the foregoing, please sign and return one copy of this Agreement, it being understood that all counterpart copies will\nconstitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nENPATH MEDICAL, INC.\nBy: /s/ James D. Hartman\nName: James D. Hartman\nTitle:  Chairman of the Board\nAccepted as of the\nDate first above written:\nGREATBATCH, INC.\nBy: /s/ Thomas Hook\nName: Thomas Hook\nTitle:  President and CEO\nphone :: 763.951.8181 fax 1 763.559.0148 mail :: Enpath Medical, Inc.\ntoll free :: 866.951.8181 web ::  enpathmedical.com 2300 Berkshire Lane North\nMinneapolis, MN 55441 USA	EX-99.(D)(3)(I) 9 dex99d3i.htm CONFIDENTIALITY AGREEMENT, DATED MARCH 15, 2007\nExhibit (d)(3)(i)\nLOGO\nMarch 15, 2007\nMr. Thomas Hook\nPresident and CEO\nGreatbatch, Inc.\n9645 Wehrle Drive\nClarence, NY 14031\nDear Mr. Hook:\nEnpath Medical, Inc. ("Enpath" or "the Company") has engaged Greene Holcomb & Fisher ("GH&F") to advise the Company with respect to\na\npotential negotiated transaction involving a potential business combination (the "Transaction"). In connection with the consideration of a Transaction\nwith the Company, the Company is prepared to furnish Greatbatch, Inc. ("you" or "Greatbatch") with information concerning the Company's\nbusiness, all of which is deemed confidential and proprietary, subject to the exceptions outlined below. This information is collectively referred to\nas\nthe "Evaluation Material."\n1. Confidentiality\nTo maintain the confidentiality of the Evaluation Material, you and each individual or entity with access to the Evaluation Material agree:\na.\nnot to use any Evaluation Material or notes, summaries, or other material derived from the Evaluation Material (collectively, "Notes")\nexcept to determine whether you wish to propose to enter into a Transaction with the Company and the terms of a Transaction;\nb. not to disclose any Evaluation Material or Notes other than to those of your and your affiliates' officers, directors, employees, advisors and\nrepresentatives (collectively, "Representatives") with a need to know the information and who agree to be bound by the terms of this Agreement; and\nC. not to disclose that the Evaluation Material has been made available, that you or your Representatives have inspected any Evaluation\nMaterial, or that you and the Company may be considering a Transaction or have had, are having or propose to have any discussions with respect\nthereto.\n2.\nNon-Disclosure by ENPATH and GH&F\nThe Company and GH&F agree not to disclose that the Evaluation Material has been made available to you, or that you may be considering the\nTransaction, or that discussions or negotiations are taking or have taken place with you concerning the Transaction unless the disclosure is required\nby law, regulation or a listing agreement with a securities exchange.\n3.\nTermination by ENPATH\nThe Company (directly or through GH&F) may elect at any time to terminate further access by you to Evaluation Material. You agree that upon any\ntermination, you will promptly (and in any case within five business days of the Company's or GH&F's request) return to GH&F or the Company all\nEvaluation Material except Notes, cause all Notes to be destroyed, including any Notes or Evaluation Material in electronic form and confirm in\nwriting to the Company that all the material has been returned or destroyed in compliance with this Agreement, except that your investment banker\nmay retain one copy of any such Evaluation Material as may be required under internal record retention policies and procedures for legal,\ncompliance or regulatory purposes, in which case the restrictions herein on its use and disclosure of any Evaluation Material shall survive. No\ntermination will affect your obligations or\nphone 763.951.8181\nfax\n763.559.0148\nmail\nEnpath Medical, Inc.\ntoll free 866.951.8181\nweb\nenpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 2\nthose of your Representatives under this Agreement, all of which obligations will continue in effect. You will be permitted to maintain a log that\nidentifies the Evaluation Material returned in accordance with this paragraph.\n4. Exceptions\nThis Agreement does not apply to portions of the Evaluation Material if the information\ni.\nbecomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation of this\nAgreement,\nii.\nwas available to you on a non-confidential basis or was already in the public domain prior to its disclosure to you by the Company or its\nrepresentatives,\niii.\nbecomes available to you on a non-confidential basis from a source, other than the Company or its representatives, if the source is not\nknown to you to be prohibited from disclosing the information to you by a contractual, legal, fiduciary or other obligation to maintain\nconfidentiality to the Company or its representatives,\niv.\nas demonstrated by reasonable proof, was developed by or on behalf of you (or your Representatives) independent of and without\nreference to the Evaluation Material.\n5.\nRequired Disclosure\nIf you or your Representatives are requested, legally compelled or required (by oral questions, interrogatories, requests for information, subpoena,\ncivil investigative demand, or similar court or governmental process) to disclose any Evaluation Material or Notes, you agree that you will provide\nthe Company with prompt written notice of the request so that the Company may seek an appropriate protective order or waive your compliance\nwith the provisions of this Agreement. You agree to reasonably cooperate with the Company, at the Company's sole expense, in obtaining an\nappropriate protective order. If, failing the entry of a protective order or the receipt of a waiver hereunder, you or your Representatives are, in the\nopinion of your or your Representatives' counsel, as the case may be, required or compelled to disclose Evaluation Material or Notes, you may\ndisclose only that portion of the information that is legally required without liability hereunder if you agree to exercise your reasonable efforts to\nobtain assurance that confidential treatment will be accorded that information.\n6.\nNon- Solicitation\nFor a period of one year following the date of the Agreement, you will not, directly or indirectly, solicit for employment or hire any officer, director,\nor employee of the Company or any of its subsidiaries with whom you have had contact or who became known to you in connection with your\nconsideration of the Transaction, except that you will not be precluded from hiring any employee who (i) responds to any public advertisement or\ngeneral search placed by you, or (ii) has been terminated by the Company or its subsidiaries prior to commencement of employment discussions\nbetween you and the officer, director, or employee.\nGreatbatch further agrees that it will not, for a period of one year from the date of this Agreement, use the Evaluation Material to contact the clients\nof ENPATH. ENPATH acknowledges that Greatbatch operates a similar businesses that may compete with ENPATH customers and that nothing\ncontained in this Agreement will prohibit Greatbatch from continuing to contact these customers in the normal course of business.\nphone 763.951.8181\nfax\n763.559.0148\nmail\nEnpath Medical, Inc.\ntoll free\n866.951.8181\nweb\nenpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 3\n7. Standstill\nYou agree that until one year from the date of this Agreement, you will not without the prior approval of the Board of Directors of the Company,\ndirectly or indirectly through any third party:\ni.\nacquire or make any proposal to acquire any securities or property of the Company,\nii.\npropose to enter into any merger or business combination involving the Company or purchase a material portion of the assets of the\nCompany,\niii. make or participate in any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of any\nsecurities of the Company,\niv.\nform, join or participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934) with respect to\nany voting securities of the Company,\nV.\notherwise act or seek to control or influence the management, Board of Directors or policies of the Company; however, this clause does\nnot prohibit ordinary course of business transactions between you and the Company that are not in connection with a Transaction,\nvi.\ndisclose any intention, plan or arrangement inconsistent with the foregoing, or\nvii. take any action that might require the Company to make a public announcement regarding the possibility of a business combination or\nmerger.\nYou also agree during the one-year period, not to publicly request the Company (or its directors, officers, employees, agents or representatives) to\namend or waive any provision of this paragraph. This paragraph 7 does not prohibit you from confidential discussions with the management of the\nCompany or its representatives concerning a possible Transaction.\n8.\nNo Representations\nYou understand and agree that none of the Company, GH&F, or their respective affiliates or representatives make any representations or warranties,\nexpress or implied, with respect to any of the Evaluation Material, except as is explicitly set forth in the Evaluation Material. You also agree that\nnone of the Company, GH&F, or their respective affiliates or representatives will have liability to you or your Representatives resulting from the\nselection or use of the Evaluation Material by you or your Representatives.\n9.\nNo Definite Agreement\nYou agree that no contract or agreement providing for any Transaction will be deemed to exist between you and the Company unless and until you\nand the Company execute and deliver a final definitive agreement (a "Transaction Agreement"), You also agree that unless and until you and the\nCompany have executed and delivered a Transaction Agreement, neither you nor the Company will be under any legal obligation of any kind\nwhatsoever with respect to a Transaction by virtue of this Agreement, except for the matters specifically agreed to in this Agreement. You further\nacknowledge and agree that the Company reserves the right, in its sole discretion, to reject any and all proposals made by you or your\nRepresentatives with regard to a Transaction, and to terminate discussions and negotiations with you at any time. You further understand that the\nCompany will be free to establish and change any process or procedure with respect to a Transaction as the Company in its sole discretion may\ndetermine (including, without limitation, negotiating with any other interested party and entering into a final definitive agreement relating to\na\nTransaction with any other party without prior notice to you or any other person).\n10. Injunctive Relief\nYou further understand and agreed that money damages may not be a sufficient remedy for any breach of this Agreement and that the Company will\nbe entitled to seek specific performance and injunctive or other equitable\nphone 763.951.8181\nfax\n763.559.0148\nmail\nEnpath Medical, Inc.\ntoll free\n866.951.8181\nweb enpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 4\nrelief as a remedy for any such breach. This remedy will not be deemed to be the exclusive remedy for breach of this Agreement but is in addition to\nall other remedies available at law or equity to the Company.\n11. Severability:\nIf any provision of this Agreement is held to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force and\neffect without being invalidated.\n12. Governing Law:\nThis Agreement is to be construed, performed and enforced in accordance with, and governed by, the internal laws of the State of Minnesota,\nwithout giving effect to its principles of conflicts of law.\n13. Notice:\nAll Notices, demands and requests required or permitted to be given under this Agreement must be in writing and directed to the addresses indicated\nbelow, or such other address as indicated by the parties, from time to time. Each notice or other communication will be deemed given (a) when\npersonally delivered or sent by facsimile transmission to the party to be given the notice or other communication at the address indicated below, or\n(b) on the business day following the business day that the notice or other communication is sent by overnight courier or next day delivery, to the\naddress indicated below.\nIF TO GREATBATCH:\nGreatbatch, Inc.\n9645 Wehrle Drive\nClarence, NY 14031\nAttn: Thomas Hook\n(t) (716) 759-5671\n(f) (716) 759-5672\nIF TO ENPATH:\nEnpath Medical, Inc.\n2300 Berkshire Lane North\nMinneapolis, MN 55441\nAttn: James D. Hartman\n(t) (763) 559-2613\n(f) (763) 559-0148\n14. General:\nThis Agreement embodies the entire understanding and agreement between the Parties relating to the subject matter hereof, and supersedes any and\nall prior agreements and understandings relating thereto. No change, modification, alteration or addition to any provision of this Agreement will be\nbinding unless agreed to in writing by an authorized representative on behalf of each Party to this Agreement.\nThe parties understand and agree that no failure of delay by the other party in exercising any right, power or privilege under this Agreement will\noperate as a waiver thereof nor will any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege\nhereunder.\nphone :: 763.951.8181\nfax 763.559.0148\nmail\n:: Enpath Medical, Inc.\ntoll free\n:: 866.951.8181\nweb\nenpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 5\nIf you are in agreement with the foregoing, please sign and return one copy of this Agreement, it being understood that all counterpart copies will\nconstitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nENPATH MEDICAL, INC.\nBy: /s/ James D. Hartman\nName: James D. Hartman\nTitle: Chairman of the Board\nAccepted as of the\nDate first above written:\nGREATBATCH, INC.\nBy: /s/ Thomas Hook\nName: Thomas Hook\nTitle: President and CEO\nphone :: 763.951.8181\nfax :: 763.559.0148\nmail\n:: Enpath Medical, Inc.\ntoll free :: 866.951.8181\nweb\nenpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA	EX-99.(D)(3)(I) 9 dex99d3i.htm CONFIDENTIALITY AGREEMENT, DATED MARCH 15, 2007\nExhibit (d)(3)(i)\nLOGO\nMarch 15, 2007\nMr. Thomas Hook\nPresident and CEO\nGreatbatch, Inc.\n9645 Wehrle Drive\nClarence, NY 14031\nDear Mr. Hook:\nEnpath Medical, Inc. (“Enpath” or “the Company”) has engaged Greene Holcomb & Fisher (“GH&F”) to advise the Company with respect to a\npotential negotiated transaction involving a potential business combination (the “Transaction”). In connection with the consideration of a Transaction\nwith the Company, the Company is prepared to furnish Greatbatch, Inc. (“you” or “Greatbatch”) with information concerning the Company’s\nbusiness, all of which is deemed confidential and proprietary, subject to the exceptions outlined below. This information is collectively referred to as\nthe “Evaluation Material.”\n1. Confidentiality\nTo maintain the confidentiality of the Evaluation Material, you and each individual or entity with access to the Evaluation Material agree:\na. not to use any Evaluation Material or notes, summaries, or other material derived from the Evaluation Material (collectively, “Notes”)\nexcept to determine whether you wish to propose to enter into a Transaction with the Company and the terms of a Transaction;\nb. not to disclose any Evaluation Material or Notes other than to those of your and your affiliates’ officers, directors, employees, advisors and\nrepresentatives (collectively, “Representatives”) with a need to know the information and who agree to be bound by the terms of this Agreement; and\nc. not to disclose that the Evaluation Material has been made available, that you or your Representatives have inspected any Evaluation\nMaterial, or that you and the Company may be considering a Transaction or have had, are having or propose to have any discussions with respect\nthereto.\n2. Non-Disclosure by ENPATH and GH&F\nThe Company and GH&F agree not to disclose that the Evaluation Material has been made available to you, or that you may be considering the\nTransaction, or that discussions or negotiations are taking or have taken place with you concerning the Transaction unless the disclosure is required\nby law, regulation or a listing agreement with a securities exchange.\n3. Termination by ENPATH\nThe Company (directly or through GH&F) may elect at any time to terminate further access by you to Evaluation Material. You agree that upon any\ntermination, you will promptly (and in any case within five business days of the Company’s or GH&F’s request) return to GH&F or the Company all\nEvaluation Material except Notes, cause all Notes to be destroyed, including any Notes or Evaluation Material in electronic form and confirm in\nwriting to the Company that all the material has been returned or destroyed in compliance with this Agreement, except that your investment banker\nmay retain one copy of any such Evaluation Material as may be required under internal record retention policies and procedures for legal,\ncompliance or regulatory purposes, in which case the restrictions herein on its use and disclosure of any Evaluation Material shall survive. No\ntermination will affect your obligations or\nphone :: 763.951 .8181\nfax :: 763.559.0148\nmail :: Enpath Medical, Inc.\ntoll free :: 866.951 .8181\nweb\n:: enpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 2\nthose of your Representatives under this Agreement, all of which obligations will continue in effect. You will be permitted to maintain a log that\nidentifies the Evaluation Material returned in accordance with this paragraph.\n4. Exceptions\nThis Agreement does not apply to portions of the Evaluation Material if the information\ni. becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation of this\nAgreement,\nii.\nwas available to you on a non-confidential basis or was already in the public domain prior to its disclosure to you by the Company or its\nrepresentatives,\niii. becomes available to you on a non-confidential basis from a source, other than the Company or its representatives, if the source is not\nknown to you to be prohibited from disclosing the information to you by a contractual, legal, fiduciary or other obligation to maintain\nconfidentiality to the Company or its representatives,\niv. as demonstrated by reasonable proof, was developed by or on behalf of you (or your Representatives) independent of and without\nreference to the Evaluation Material.\n5. Required Disclosure\nIf you or your Representatives are requested, legally compelled or required (by oral questions, interrogatories, requests for information, subpoena,\ncivil investigative demand, or similar court or governmental process) to disclose any Evaluation Material or Notes, you agree that you will provide\nthe Company with prompt written notice of the request so that the Company may seek an appropriate protective order or waive your compliance\nwith the provisions of this Agreement. You agree to reasonably cooperate with the Company, at the Company’s sole expense, in obtaining an\nappropriate protective order. If, failing the entry of a protective order or the receipt of a waiver hereunder, you or your Representatives are, in the\nopinion of your or your Representatives’ counsel, as the case may be, required or compelled to disclose Evaluation Material or Notes, you may\ndisclose only that portion of the information that is legally required without liability hereunder if you agree to exercise your reasonable efforts to\nobtain assurance that confidential treatment will be accorded that information.\n6. Non- Solicitation\nFor a period of one year following the date of the Agreement, you will not, directly or indirectly, solicit for employment or hire any officer, director,\nor employee of the Company or any of its subsidiaries with whom you have had contact or who became known to you in connection with your\nconsideration of the Transaction, except that you will not be precluded from hiring any employee who (i) responds to any public advertisement or\ngeneral search placed by you, or (ii) has been terminated by the Company or its subsidiaries prior to commencement of employment discussions\nbetween you and the officer, director, or employee.\nGreatbatch further agrees that it will not, for a period of one year from the date of this Agreement, use the Evaluation Material to contact the clients\nof ENPATH. ENPATH acknowledges that Greatbatch operates a similar businesses that may compete with ENPATH customers and that nothing\ncontained in this Agreement will prohibit Greatbatch from continuing to contact these customers in the normal course of business.\nphone :: 763.951 .8181\nfax :: 763.559.0148\nmail :: Enpath Medical, Inc.\ntoll free :: 866.951 .8181\nweb\n:: enpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 3\n7. Standstill\nYou agree that until one year from the date of this Agreement, you will not without the prior approval of the Board of Directors of the Company,\ndirectly or indirectly through any third party:\ni.\nacquire or make any proposal to acquire any securities or property of the Company,\nii. propose to enter into any merger or business combination involving the Company or purchase a material portion of the assets of the\nCompany,\niii. make or participate in any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of any\nsecurities of the Company,\niv. form, join or participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934) with respect to\nany voting securities of the Company,\nv.\notherwise act or seek to control or influence the management, Board of Directors or policies of the Company; however, this clause does\nnot prohibit ordinary course of business transactions between you and the Company that are not in connection with a Transaction,\nvi. disclose any intention, plan or arrangement inconsistent with the foregoing, or\nvii. take any action that might require the Company to make a public announcement regarding the possibility of a business combination or\nmerger.\nYou also agree during the one-year period, not to publicly request the Company (or its directors, officers, employees, agents or representatives) to\namend or waive any provision of this paragraph. This paragraph 7 does not prohibit you from confidential discussions with the management of the\nCompany or its representatives concerning a possible Transaction.\n8. No Representations\nYou understand and agree that none of the Company, GH&F, or their respective affiliates or representatives make any representations or warranties,\nexpress or implied, with respect to any of the Evaluation Material, except as is explicitly set forth in the Evaluation Material. You also agree that\nnone of the Company, GH&F, or their respective affiliates or representatives will have liability to you or your Representatives resulting from the\nselection or use of the Evaluation Material by you or your Representatives.\n9. No Definite Agreement\nYou agree that no contract or agreement providing for any Transaction will be deemed to exist between you and the Company unless and until you\nand the Company execute and deliver a final definitive agreement (a “Transaction Agreement”), You also agree that unless and until you and the\nCompany have executed and delivered a Transaction Agreement, neither you nor the Company will be under any legal obligation of any kind\nwhatsoever with respect to a Transaction by virtue of this Agreement, except for the matters specifically agreed to in this Agreement. You further\nacknowledge and agree that the Company reserves the right, in its sole discretion, to reject any and all proposals made by you or your\nRepresentatives with regard to a Transaction, and to terminate discussions and negotiations with you at any time. You further understand that the\nCompany will be free to establish and change any process or procedure with respect to a Transaction as the Company in its sole discretion may\ndetermine (including, without limitation, negotiating with any other interested party and entering into a final definitive agreement relating to a\nTransaction with any other party without prior notice to you or any other person).\n10. Injunctive Relief\nYou further understand and agreed that money damages may not be a sufficient remedy for any breach of this Agreement and that the Company will\nbe entitled to seek specific performance and injunctive or other equitable\nphone :: 763.951 .8181\nfax :: 763.559.0148\nmail :: Enpath Medical, Inc.\ntoll free :: 866.951 .8181\nweb\n:: enpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 4\nrelief as a remedy for any such breach. This remedy will not be deemed to be the exclusive remedy for breach of this Agreement but is in addition to\nall other remedies available at law or equity to the Company.\n11. Severability:\nIf any provision of this Agreement is held to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force and\neffect without being invalidated.\n12. Governing Law:\nThis Agreement is to be construed, performed and enforced in accordance with, and governed by, the internal laws of the State of Minnesota,\nwithout giving effect to its principles of conflicts of law.\n13. Notice:\nAll Notices, demands and requests required or permitted to be given under this Agreement must be in writing and directed to the addresses indicated\nbelow, or such other address as indicated by the parties, from time to time. Each notice or other communication will be deemed given (a) when\npersonally delivered or sent by facsimile transmission to the party to be given the notice or other communication at the address indicated below, or\n(b) on the business day following the business day that the notice or other communication is sent by overnight courier or next day delivery, to the\naddress indicated below.\nIF TO GREATBATCH:\nGreatbatch, Inc.\n9645 Wehrle Drive\nClarence, NY 14031\nAttn: Thomas Hook\n(t) (716) 759-5671\n(f) (716) 759-5672\nIF TO ENPATH:\nEnpath Medical, Inc.\n2300 Berkshire Lane North\nMinneapolis, MN 55441\nAttn: James D. Hartman\n(t) (763) 559-2613\n(f) (763) 559-0148\n14. General:\nThis Agreement embodies the entire understanding and agreement between the Parties relating to the subject matter hereof, and supersedes any and\nall prior agreements and understandings relating thereto. No change, modification, alteration or addition to any provision of this Agreement will be\nbinding unless agreed to in writing by an authorized representative on behalf of each Party to this Agreement.\nThe parties understand and agree that no failure of delay by the other party in exercising any right, power or privilege under this Agreement will\noperate as a waiver thereof nor will any single or partial exercise thereof preclude any other or future exercise of any right, power or privilege\nhereunder.\nphone :: 763.951 .8181\nfax :: 763.559.0148\nmail :: Enpath Medical, Inc.\ntoll free :: 866.951 .8181\nweb\n:: enpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA\nMr. Thomas Hook\nMarch 15, 2007\nPage 5\nIf you are in agreement with the foregoing, please sign and return one copy of this Agreement, it being understood that all counterpart copies will\nconstitute but one agreement with respect to the subject matter of this letter.\nVery truly yours,\nENPATH MEDICAL, INC.\nBy: /s/ James D. Hartman\nName: James D. Hartman\nTitle: Chairman of the Board\nAccepted as of the\nDate first above written:\nGREATBATCH, INC.\nBy: /s/ Thomas Hook\nName: Thomas Hook\nTitle: President and CEO\nphone :: 763.951 .8181\nfax :: 763.559.0148\nmail :: Enpath Medical, Inc.\ntoll free :: 866.951 .8181\nweb\n:: enpathmedical.com\n2300 Berkshire Lane North\nMinneapolis, MN 55441 USA
+232b3bee703427df8e9893e4a52d5d60.pdf	effective_date jurisdiction party term	EX-10.3 4 dex103.htm FORM OF EXECUTIVE CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.3\nEXECUTIVE CONFIDENTIALITY AND NON-COMPETITION\nAGREEMENT\nIn consideration of my 2011 stock award and other good and valuable consideration, the sufficiency of which is acknowledged, the Company and I\nagree to this Executive Confidentiality and Non-Competition Agreement (“Agreement”).\n1. The following definitions apply to this Agreement:\na. “Company” means [Employer Name] and its successors and assigns.\nb. “Company Affiliate” means, excluding the Company itself, Altria Group, its wholly-owned subsidiaries and affiliates, and their successors\nand assigns.\nc. “I,” “me,” or “my” refers to [Executive Name].\nd. “Confidential Information” means information that is confidential and proprietary to the Company and/or any Company Affiliate, including\nbut not limited to: trade secrets; lists of and other non-public information about current and prospective customers; business plans or strategies; sales\nand account records; prices or pricing strategy or information; current and proposed advertising and promotional programs; research or development\nprojects or plans; non-public financial information; information relating to personnel, including compensation and other employment practices;\nmethods, systems, techniques, procedures, designs, formulae, inventions, and know-how; and other business information of a similar nature not\ngenerally known to the public, which if misused or disclosed, could adversely affect the business of the Company and/or any Company Affiliate.\nConfidential Information includes any such information that I may prepare or create during my employment, whether on behalf of the Company or\non behalf of any Company Affiliate to whom I am providing services, as well as such information that has been or may be created by others in those\ncapacities. Confidential Information does not include information that is generally known to the public or that has been made known to the public\nthrough no fault of my own.\ne. “Competitor” means any individual, group, company, enterprise, or other entity that develops, manufactures, markets, and/or sells tobacco,\nwine, or other products or technologies that compete (or upon introduction to the marketplace, will compete) with tobacco, wine, or other products or\ntechnologies that are manufactured, marketed, sold, and/or being developed by the Company and/or any Company Affiliate (including but not\nlimited to Philip Morris USA, U.S. Smokeless Tobacco Company, John Middleton Company, and Ste. Michelle Wine Estates). The term\n“Competitor” also includes any other entity under common ownership (in whole or in part) or legal affiliation with a competing entity, as identified\nin the preceding sentence, which provides support to such competing entity.\nUpdated: January 2011\nf. “Competitive Activities” means any employment with, engagement as a consultant or contractor for, rendering of any services to, or other\nmaterial assistance in any capacity to any Competitor.\ng. “Adverse Party” means any individual, group, company, union, governmental body or other entity, excluding a Competitor, that has\npecuniary and/or non-pecuniary interests known to be in opposition or otherwise adverse to those of the Company and/or any Company Affiliate.\n2. During the period of my employment, I will devote my full time and best efforts to the business of the Company and/or any Company Affiliate,\nand I will not take any action that conflicts with the interests of the Company and/or any Company Affiliate. Moreover, I further agree that, during\nmy period of employment, I will take no action that conflicts with or infringes on the rights or interests of any third party for which I have performed\nservices either as an employee, consultant, or contractor. Specifically, I agree that, during the period of my employment, I am not to use or disclose\nany confidential or proprietary information of any third party or otherwise violate any written or verbal agreement I may have entered into with any\nthird party while performing services as an employee, consultant, or contractor of that third party.\n3. Except as authorized by the Company and/or any Company Affiliate or as required by law, I will not at any time during my employment or after\nthe termination of my employment for whatever reason: (a) disclose any Confidential Information to any person, company, agency, institution, or\nother entity, or (b) use any Confidential Information for my own benefit or the benefit of any person, company, agency, institution, or other entity\nexcept the Company and/or any Company Affiliate. I agree that all Confidential Information is, and at all times remains, the property of the\nCompany and/or any Company Affiliate.\n4. I agree that, as used in this Agreement, “Work Product” means and includes all of the following: any invention, discovery, process, method,\ntechnique, formula, concept, idea, work of authorship, and improvement thereof, whether or not it may be protected under patent, copyright,\ntrademark, trade secret or other principles, that is related to the business, anticipated business, research, development, design activities or products of\nthe Company and/or any Company Affiliate.\na. I agree that the Company and/or any Company Affiliate shall have sole and exclusive proprietary rights in and to all Work Product that is\nconceived, developed, or made by me alone or in conjunction with others: (i) during my employment, whether or not during regular working hours,\non Company premises, or with Company materials, and/or (ii) after the termination of my employment, if such Work Product is based on or related\nto, or arises or results from, any work performed by me for the Company or on behalf of any Company Affiliate during my employment. I agree to\ndisclose promptly and fully to the Company all such Work Product. I also agree to treat all such Work Product as Confidential Information except to\nthe extent specifically directed otherwise by the Company and/or any Company Affiliate.\nUpdated: January 2011\n2\nb. I agree to and hereby do assign to the Company and/or any Company Affiliate all right, title, and interest, including all intellectual property\nrights, in and to all Work Product designated in the previous sub-paragraph as the property of the Company and/or any Company Affiliate, including,\nwithout limitation, the assignment of right to claim priority. To the extent that any such Work Product, or portion of such Work Product, is protected\nunder the U.S. Copyright laws, such Work Product shall be considered a “Work Made for Hire” as defined in the U.S . Copyright laws, and shall\nautomatically be owned by the Company and/or any Company Affiliate. During and after my employment, I agree to cooperate fully with the\nCompany and/or any Company Affiliate in the protection (including any litigation or controversy) of any intellectual property rights derived from or\nrelated to its Work Product.\n5. At the end of my employment, regardless of how or why the employment ends, I will surrender and return to the Company any and all property of\nthe Company and/or any Company Affiliate, as well as all copies of written or electronic records of Confidential Information in my possession or\ncontrol.\n6. I agree that, as a result of my exposure to Confidential Information, my responsibilities as an executive of the Company, and my association with\nthe Company and/or any Company Affiliate, their products and technologies, goodwill, and customers and business relationships, I will be in a\nposition to cause irreparable harm to the Company and/or any Company Affiliate. Thus, during my employment and for eighteen (18) months after\nthe end of such employment, regardless of how or why my employment ends, I will not directly or indirectly:\na. Engage in any Competitive Activities if those Competitive Activities would be similar to the services I performed within the last three\n(3) years of my employment.\nb. Organize, establish, or operate as a Competitor.\nc. Engage in any Competitive Activities if, in the performance of those Competitive Activities, I would reasonably be expected to use or would\ninevitably use any Confidential Information learned by me during my employment.\nd. Contact or solicit business from, in a manner competitive with or adverse to the interests of the Company and/or any Company Affiliate, any\ncustomer or potential customer of the Company and/or any Company Affiliate with whom I had contact or for whom I provided services during the\nlast twelve (12) months of my employment.\ne. Solicit or induce any employee of the Company and/or any Company Affiliate to leave the employment of the Company and/or the\nCompany Affiliate.\nf. Hire or otherwise engage the services of any employee of the Company and/or any Company Affiliate.\ng. Assist any Competitor or Adverse Party in taking any of the actions described in subparagraphs (d) through (f) immediately above.\nUpdated: January 2011\n3\nI agree that the Company and/or any Company Affiliate develops, manufactures, markets, and/or sells cigarettes and cigarette-related products\nor technologies that are, or are intended to be, marketed and/or sold throughout the United States, and that my duties will pertain to such products or\ntechnologies and therefore affect the business of the Company and/or any Company Affiliate throughout the United States. I also agree that the\nCompany and/or any Company Affiliate develops, manufactures, markets, and/or sells smokeless tobacco, cigars, wine and other products and\nassociated technologies that are, or are intended to be, marketed and/or sold throughout the United States and foreign countries, and that my duties\nwill pertain to such products or technologies and therefore affect the business of the Company and/or any Company Affiliate throughout the United\nStates and such foreign countries. I further agree that the activities prohibited by this paragraph 6 would be harmful to the Company and/or any\nCompany Affiliate regardless of where those activities occur and that my exposure to Confidential Information, in particular, would give me and any\nCompetitor for whom I provide services an unfair economic advantage. Therefore, I agree that the scope of the restrictions of subparagraphs 6(a) and\n(b) above pertain to: (1) the development, manufacturing, marketing, and/or sale by any Competitor of any cigarettes and cigarette-related products\nor technologies intended for marketing and/or sale in the United States; and (2) the development, manufacturing, marketing, and/or sale by any\nCompetitor of any smokeless tobacco, cigars, wine or other products and associated technologies intended for marketing and/or sale in the United\nStates or intended for marketing and/or sale in any foreign country that the Company and/or any Company Affiliate markets and/or sells similar\nproducts or technologies. I understand that the restrictions of subparagraphs 6(c) through (g) above are tied to information, employees, and/or\ncustomers of the Company and/or any Company Affiliate and therefore are limited in that manner rather than geographically.\nI understand and agree that if at any time I hold an active license to practice law in any jurisdiction, the restrictions of subparagraphs 6(a)\nthrough (g) above do not prohibit me from the practice of law in that jurisdiction and the restrictions of subparagraphs 6(a) through (g) above shall\nbe interpreted to prohibit my activities only to the extent consistent with the applicable rules of professional conduct for that jurisdiction.\n7. If I am offered and want to accept employment with a Competitor or Adverse Party during my employment or the eighteen (18) month period\nfollowing the end of my employment, then prior to my acceptance of such employment I will inform the Company in writing of the identity of the\nCompetitor or Adverse Party, my proposed duties for that Competitor or Adverse Party, and the proposed starting date of that employment. I also\nagree that I will inform the Competitor or Adverse Party of the terms of this Agreement.\n8. I agree that, after the end of my employment, I may engage in any business activity or gainful employment of any type and in any place except as\ndescribed above. I agree that I will be reasonably able to earn a livelihood without violating the terms of this Agreement.\n9. I agree that the Company and/or any Company Affiliate are beneficiaries of this Agreement and have a legitimate business interest in preventing\nme from taking any actions that\nUpdated: January 2011\n4\nwould violate this Agreement. I further agree that the Company and/or any Company Affiliate (individually and taken as a whole) would be\nirreparably harmed if I violated the terms of this Agreement or if any of its terms were not specifically enforced and that money damages would not\nprovide adequate relief. I therefore agree that if I violate or threaten to violate any term of this Agreement, the Company and/or any Company\nAffiliate shall be entitled to injunctive relief, specific performance, any other equitable remedies, and any and all remedies at law, plus its costs and\nattorneys’ fees incurred to enforce this Agreement or to obtain any other relief.\n10. I agree that if the Company and/or any Company Affiliate waive or allow any breach of this Agreement, that waiver or allowance will not be a\nwaiver of any future or other breach, whether of a similar or dissimilar nature.\n11. I agree that each provision of this Agreement is a separate and independent clause. If any clause is found to be unenforceable, that will not impair\nthe enforceability of any other clauses. Further, if any provisions of this Agreement should ever be deemed to exceed the time, geographic area, or\nactivity limitations permitted by applicable law, I agree that such provisions should be and are reformed to the maximum time, geographic area, and\nactivity limitations permitted by applicable law. I authorize a court having jurisdiction to reform the provisions to the maximum time, geographic\narea, and activity limitations permitted by applicable law.\n12. I agree that this Agreement may not be changed, modified or otherwise terminated, in whole or in part, unless agreed to in writing by me, on my\nown behalf, and the Altria Client Services Senior Vice President of Human Resources & Compliance, on behalf of the Company.\n13. I agree that this Agreement constitutes the entire agreement between me and the Company and supersedes any previous agreement I may have\nexecuted with the Company or any Company Affiliate on the topics covered by this Agreement. I further agree that the Company has made no other\nrepresentations to me on the topics covered by this Agreement.\n14. I agree that my employment with the Company is at-will and for no fixed duration. Either the Company or I may terminate the employment\nrelationship at any time, for any reason that either the Company or I may deem appropriate, regardless of whether or not I have violated any term of\nthis Agreement. I further agree that the restrictions set forth in this Agreement will apply regardless of the reason or circumstances of the termination\nof my employment.\n15. I agree that, for purposes of this Agreement, my employment means and includes any periods of employment with the Company or any\nCompany Affiliate after I sign this Agreement. I agree that, if I transfer employment to a Company Affiliate, the terms and conditions of this\nAgreement shall continue in full force and effect, and all rights and obligations belonging to the Company under this Agreement will transfer or\notherwise inure to the Company Affiliate to which I transfer.\n16. I agree that this Agreement will be governed by and interpreted in accordance with the laws of the Commonwealth of Virginia. Any dispute\narising between the parties related to or involving this Agreement will be litigated in a court having jurisdiction in the Commonwealth of\nUpdated: January 2011\n5\nVirginia, and I agree and stipulate that the Circuit Courts of the City of Richmond, Virginia and the surrounding counties, and the United States\nDistrict Court for the Eastern District of Virginia, Richmond Division, shall have personal jurisdiction over me and that venue is proper in such\ncourts for all actions or proceedings with respect to this Agreement.\nExecutive’s Name\nExecutive’s Signature\nPersonnel Number\nDate\nUpdated: January 2011\n6	EX-10.3 4 dex103.htm FORM OF EXECUTIVE CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.3\nEXECUTIVE CONFIDENTIALITY AND NON-COMPETITION\nAGREEMENT\nIn consideration of my 2011 stock award and other good and valuable consideration, the sufficiency of which is acknowledged, the Company and I\nagree to this Executive Confidentiality and Non-Competition Agreement (“Agreement”).\n1. The following definitions apply to this Agreement:\na. “Company” means [Employer Name] and its successors and assigns.\nb. “Company Affiliate” means, excluding the Company itself, Altria Group, its wholly-owned subsidiaries and affiliates, and their successors\nand assigns.\nc. “L,” “me,” or “my” refers to [Executive Name].\nd. “Confidential Information” means information that is confidential and proprietary to the Company and/or any Company Affiliate, including\nbut not limited to: trade secrets; lists of and other non-public information about current and prospective customers; business plans or strategies; sales\nand account records; prices or pricing strategy or information; current and proposed advertising and promotional programs; research or development\nprojects or plans; non-public financial information; information relating to personnel, including compensation and other employment practices;\nmethods, systems, techniques, procedures, designs, formulae, inventions, and know-how; and other business information of a similar nature not\ngenerally known to the public, which if misused or disclosed, could adversely affect the business of the Company and/or any Company Affiliate.\nConfidential Information includes any such information that I may prepare or create during my employment, whether on behalf of the Company or\non behalf of any Company Affiliate to whom I am providing services, as well as such information that has been or may be created by others in those\ncapacities. Confidential Information does not include information that is generally known to the public or that has been made known to the public\nthrough no fault of my own.\ne. “Competitor” means any individual, group, company, enterprise, or other entity that develops, manufactures, markets, and/or sells tobacco,\nwine, or other products or technologies that compete (or upon introduction to the marketplace, will compete) with tobacco, wine, or other products or\ntechnologies that are manufactured, marketed, sold, and/or being developed by the Company and/or any Company Affiliate (including but not\nlimited to Philip Morris USA, U.S. Smokeless Tobacco Company, John Middleton Company, and Ste. Michelle Wine Estates). The term\n“Competitor” also includes any other entity under common ownership (in whole or in part) or legal affiliation with a competing entity, as identified\nin the preceding sentence, which provides support to such competing entity.\nUpdated: January 2011\nf. “Competitive Activities” means any employment with, engagement as a consultant or contractor for, rendering of any services to, or other\nmaterial assistance in any capacity to any Competitor.\ng. “Adverse Party” means any individual, group, company, union, governmental body or other entity, excluding a Competitor, that has\npecuniary and/or non-pecuniary interests known to be in opposition or otherwise adverse to those of the Company and/or any Company Affiliate.\n2. During the period of my employment, I will devote my full time and best efforts to the business of the Company and/or any Company Affiliate,\nand I will not take any action that conflicts with the interests of the Company and/or any Company Affiliate. Moreover, I further agree that, during\nmy period of employment, I will take no action that conflicts with or infringes on the rights or interests of any third party for which I have performed\nservices either as an employee, consultant, or contractor. Specifically, I agree that, during the period of my employment, I am not to use or disclose\nany confidential or proprietary information of any third party or otherwise violate any written or verbal agreement I may have entered into with any\nthird party while performing services as an employee, consultant, or contractor of that third party.\n3. Except as authorized by the Company and/or any Company Affiliate or as required by law, I will not at any time during my employment or after\nthe termination of my employment for whatever reason: (a) disclose any Confidential Information to any person, company, agency, institution, or\nother entity, or (b) use any Confidential Information for my own benefit or the benefit of any person, company, agency, institution, or other entity\nexcept the Company and/or any Company Affiliate. I agree that all Confidential Information is, and at all times remains, the property of the\nCompany and/or any Company Affiliate.\n4.1 agree that, as used in this Agreement, “Work Product” means and includes all of the following: any invention, discovery, process, method,\ntechnique, formula, concept, idea, work of authorship, and improvement thereof, whether or not it may be protected under patent, copyright,\ntrademark, trade secret or other principles, that is related to the business, anticipated business, research, development, design activities or products of\nthe Company and/or any Company Affiliate.\na. I agree that the Company and/or any Company Affiliate shall have sole and exclusive proprietary rights in and to all Work Product that is\nconceived, developed, or made by me alone or in conjunction with others: (i) during my employment, whether or not during regular working hours,\non Company premises, or with Company materials, and/or (ii) after the termination of my employment, if such Work Product is based on or related\nto, or arises or results from, any work performed by me for the Company or on behalf of any Company Affiliate during my employment. I agree to\ndisclose promptly and fully to the Company all such Work Product. I also agree to treat all such Work Product as Confidential Information except to\nthe extent specifically directed otherwise by the Company and/or any Company Affiliate.\nUpdated: January 2011 2\nb. I agree to and hereby do assign to the Company and/or any Company Affiliate all right, title, and interest, including all intellectual property\nrights, in and to all Work Product designated in the previous sub-paragraph as the property of the Company and/or any Company Affiliate, including,\nwithout limitation, the assignment of right to claim priority. To the extent that any such Work Product, or portion of such Work Product, is protected\nunder the U.S. Copyright laws, such Work Product shall be considered a “Work Made for Hire” as defined in the U.S. Copyright laws, and shall\nautomatically be owned by the Company and/or any Company Affiliate. During and after my employment, I agree to cooperate fully with the\nCompany and/or any Company Affiliate in the protection (including any litigation or controversy) of any intellectual property rights derived from or\nrelated to its Work Product.\n5. At the end of my employment, regardless of how or why the employment ends, I will surrender and return to the Company any and all property of\nthe Company and/or any Company Affiliate, as well as all copies of written or electronic records of Confidential Information in my possession or\ncontrol.\n6. I agree that, as a result of my exposure to Confidential Information, my responsibilities as an executive of the Company, and my association with\nthe Company and/or any Company Affiliate, their products and technologies, goodwill, and customers and business relationships, I will be in a\nposition to cause irreparable harm to the Company and/or any Company Affiliate. Thus, during my employment and for eighteen (18) months after\nthe end of such employment, regardless of how or why my employment ends, I will not directly or indirectly:\na. Engage in any Competitive Activities if those Competitive Activities would be similar to the services I performed within the last three\n(3) years of my employment.\nb. Organize, establish, or operate as a Competitor.\nc. Engage in any Competitive Activities if, in the performance of those Competitive Activities, I would reasonably be expected to use or would\ninevitably use any Confidential Information learned by me during my employment.\nd. Contact or solicit business from, in a manner competitive with or adverse to the interests of the Company and/or any Company Affiliate, any\ncustomer or potential customer of the Company and/or any Company Affiliate with whom I had contact or for whom I provided services during the\nlast twelve (12) months of my employment.\ne. Solicit or induce any employee of the Company and/or any Company Affiliate to leave the employment of the Company and/or the\nCompany Affiliate.\nf. Hire or otherwise engage the services of any employee of the Company and/or any Company Affiliate.\ng. Assist any Competitor or Adverse Party in taking any of the actions described in subparagraphs (d) through (f) immediately above.\nUpdated: January 2011 3\nI agree that the Company and/or any Company Affiliate develops, manufactures, markets, and/or sells cigarettes and cigarette-related products\nor technologies that are, or are intended to be, marketed and/or sold throughout the United States, and that my duties will pertain to such products or\ntechnologies and therefore affect the business of the Company and/or any Company Affiliate throughout the United States. I also agree that the\nCompany and/or any Company Affiliate develops, manufactures, markets, and/or sells smokeless tobacco, cigars, wine and other products and\nassociated technologies that are, or are intended to be, marketed and/or sold throughout the United States and foreign countries, and that my duties\nwill pertain to such products or technologies and therefore affect the business of the Company and/or any Company Affiliate throughout the United\nStates and such foreign countries. I further agree that the activities prohibited by this paragraph 6 would be harmful to the Company and/or any\nCompany Affiliate regardless of where those activities occur and that my exposure to Confidential Information, in particular, would give me and any\nCompetitor for whom I provide services an unfair economic advantage. Therefore, I agree that the scope of the restrictions of subparagraphs 6(a) and\n(b) above pertain to: (1) the development, manufacturing, marketing, and/or sale by any Competitor of any cigarettes and cigarette-related products\nor technologies intended for marketing and/or sale in the United States; and (2) the development, manufacturing, marketing, and/or sale by any\nCompetitor of any smokeless tobacco, cigars, wine or other products and associated technologies intended for marketing and/or sale in the United\nStates or intended for marketing and/or sale in any foreign country that the Company and/or any Company Affiliate markets and/or sells similar\nproducts or technologies. I understand that the restrictions of subparagraphs 6(c) through (g) above are tied to information, employees, and/or\ncustomers of the Company and/or any Company Affiliate and therefore are limited in that manner rather than geographically.\nI understand and agree that if at any time I hold an active license to practice law in any jurisdiction, the restrictions of subparagraphs 6(a)\nthrough (g) above do not prohibit me from the practice of law in that jurisdiction and the restrictions of subparagraphs 6(a) through (g) above shall\nbe interpreted to prohibit my activities only to the extent consistent with the applicable rules of professional conduct for that jurisdiction.\n7.1f I am offered and want to accept employment with a Competitor or Adverse Party during my employment or the eighteen (18) month period\nfollowing the end of my employment, then prior to my acceptance of such employment I will inform the Company in writing of the identity of the\nCompetitor or Adverse Party, my proposed duties for that Competitor or Adverse Party, and the proposed starting date of that employment. I also\nagree that I will inform the Competitor or Adverse Party of the terms of this Agreement.\n8. I agree that, after the end of my employment, I may engage in any business activity or gainful employment of any type and in any place except as\ndescribed above. I agree that I will be reasonably able to earn a livelihood without violating the terms of this Agreement.\n9.1 agree that the Company and/or any Company Affiliate are beneficiaries of this Agreement and have a legitimate business interest in preventing\nme from taking any actions that\nUpdated: January 2011 4\nwould violate this Agreement. I further agree that the Company and/or any Company Affiliate (individually and taken as a whole) would be\nirreparably harmed if I violated the terms of this Agreement or if any of its terms were not specifically enforced and that money damages would not\nprovide adequate relief. I therefore agree that if I violate or threaten to violate any term of this Agreement, the Company and/or any Company\nAffiliate shall be entitled to injunctive relief, specific performance, any other equitable remedies, and any and all remedies at law, plus its costs and\nattorneys’ fees incurred to enforce this Agreement or to obtain any other relief.\n10. I agree that if the Company and/or any Company Affiliate waive or allow any breach of this Agreement, that waiver or allowance will not be a\nwaiver of any future or other breach, whether of a similar or dissimilar nature.\n11. T agree that each provision of this Agreement is a separate and independent clause. If any clause is found to be unenforceable, that will not impair\nthe enforceability of any other clauses. Further, if any provisions of this Agreement should ever be deemed to exceed the time, geographic area, or\nactivity limitations permitted by applicable law, I agree that such provisions should be and are reformed to the maximum time, geographic area, and\nactivity limitations permitted by applicable law. I authorize a court having jurisdiction to reform the provisions to the maximum time, geographic\narea, and activity limitations permitted by applicable law.\n12. 1 agree that this Agreement may not be changed, modified or otherwise terminated, in whole or in part, unless agreed to in writing by me, on my\nown behalf, and the Altria Client Services Senior Vice President of Human Resources & Compliance, on behalf of the Company.\n13. I agree that this Agreement constitutes the entire agreement between me and the Company and supersedes any previous agreement I may have\nexecuted with the Company or any Company Affiliate on the topics covered by this Agreement. I further agree that the Company has made no other\nrepresentations to me on the topics covered by this Agreement.\n14.1 agree that my employment with the Company is at-will and for no fixed duration. Either the Company or I may terminate the employment\nrelationship at any time, for any reason that either the Company or I may deem appropriate, regardless of whether or not I have violated any term of\nthis Agreement. I further agree that the restrictions set forth in this Agreement will apply regardless of the reason or circumstances of the termination\nof my employment.\n15. T agree that, for purposes of this Agreement, my employment means and includes any periods of employment with the Company or any\nCompany Affiliate after I sign this Agreement. I agree that, if I transfer employment to a Company Affiliate, the terms and conditions of this\nAgreement shall continue in full force and effect, and all rights and obligations belonging to the Company under this Agreement will transfer or\notherwise inure to the Company Affiliate to which I transfer.\n16. I agree that this Agreement will be governed by and interpreted in accordance with the laws of the Commonwealth of Virginia. Any dispute\narising between the parties related to or involving this Agreement will be litigated in a court having jurisdiction in the Commonwealth of\nUpdated: January 2011 5\nVirginia, and I agree and stipulate that the Circuit Courts of the City of Richmond, Virginia and the surrounding counties, and the United States\nDistrict Court for the Eastern District of Virginia, Richmond Division, shall have personal jurisdiction over me and that venue is proper in such\ncourts for all actions or proceedings with respect to this Agreement.\nExecutive’s Name Executive’s Signature\nPersonnel Number Date\nUpdated: January 2011	EX-10.3 4 dex103.htm FORM OF EXECUTIVE CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.3\nEXECUTIVE CONFIDENTIALITY AND NON-COMPETITION\nAGREEMENT\nIn consideration of my 2011 stock award and other good and valuable consideration, the sufficiency of which is acknowledged, the Company and I\nagree to this Executive Confidentiality and Non-Competition Agreement ("Agreement").\n1.\nThe following definitions apply to this Agreement:\na. "Company" means [Employer Name] and its successors and assigns.\nb. "Company Affiliate" means, excluding the Company itself, Altria Group, its wholly-owned subsidiaries and affiliates, and their successors\nand assigns.\nc. "I," "me," or "my" refers to [Executive Name].\nd. "Confidential Information" means information that is confidential and proprietary to the Company and/or any Company Affiliate, including\nbut not limited to: trade secrets; lists of and other non-public information about current and prospective customers; business plans or strategies; sales\nand account records; prices or pricing strategy or information; current and proposed advertising and promotional programs; research or development\nprojects or plans; non-public financial information; information relating to personnel, including compensation and other employment practices;\nmethods, systems, techniques, procedures, designs, formulae, inventions, and know-how; and other business information of a similar nature not\ngenerally known to the public, which if misused or disclosed, could adversely affect the business of the Company and/or any Company Affiliate.\nConfidential Information includes any such information that I may prepare or create during my employment, whether on behalf of the Company or\non behalf of any Company Affiliate to whom I am providing services, as well as such information that has been or may be created by others in those\ncapacities. Confidential Information does not include information that is generally known to the public or that has been made known to the public\nthrough no fault of my own.\ne. "Competitor" means any individual, group, company, enterprise, or other entity that develops, manufactures, markets, and/or sells tobacco,\nwine,\nor\nother\nproducts\nor\ntechnologies\nthat\ncompete\n(or\nupon\nintroduction\nto\nthe\nmarketplace,\nwill\ncompete)\nwith\ntobacco,\nwine,\nor\nother\nproducts\nor\ntechnologies that are manufactured, marketed, sold, and/or being developed by the Company and/or any Company Affiliate (including but not\nlimited to Philip Morris USA, U.S. Smokeless Tobacco Company, John Middleton Company, and Ste. Michelle Wine Estates). The term\n"Competitor" also includes any other entity under common ownership (in whole or in part) or legal affiliation with a competing entity, as identified\nin the preceding sentence, which provides support to such competing entity.\nUpdated: January 2011\nf. "Competitive Activities" means any employment with, engagement as a consultant or contractor for, rendering of any services to, or other\nmaterial assistance in any capacity to any Competitor.\ng. "Adverse Party" means any individual, group, company, union, governmental body or other entity, excluding a Competitor, that has\npecuniary and/or non-pecuniary interests known to be in opposition or otherwise adverse to those of the Company and/or any Company Affiliate.\n2. During the period of my employment, I will devote my full time and best efforts to the business of the Company and/or any Company Affiliate,\nand I will not take any action that conflicts with the interests of the Company and/or any Company Affiliate. Moreover, I further agree that, during\nmy\nperiod of employment, I will take no action that conflicts with or infringes on the rights or interests of any third party for which I have performed\nservices either as an employee, consultant, or contractor. Specifically, I agree that, during the period of my employment, I am not to use or disclose\nany\nconfidential or proprietary information of any third party or otherwise violate any written or verbal agreement I may have entered into with any\nthird party while performing services as an employee, consultant, or contractor of that third party.\n3. Except as authorized by the Company and/or any Company Affiliate or as required by law, I will not at any time during my employment or after\nthe termination of my employment for whatever reason: (a) disclose any Confidential Information to any person, company, agency, institution, or\nother entity, or (b) use any Confidential Information for my own benefit or the benefit of any person, company, agency, institution, or other entity\nexcept the Company and/or any Company Affiliate. I agree that all Confidential Information is, and at all times remains, the property of the\nCompany and/or any Company Affiliate.\n4. I agree that, as used in this Agreement, "Work Product" means and includes all of the following: any invention, discovery, process, method,\ntechnique, formula, concept, idea, work of authorship, and improvement thereof, whether or not it may be protected under patent, copyright,\ntrademark, trade secret or other principles, that is related to the business, anticipated business, research, development, design activities or products of\nthe Company and/or any Company Affiliate.\na. I agree that the Company and/or any Company Affiliate shall have sole and exclusive proprietary rights in and to all Work Product that is\nconceived, developed, or made by me alone or in conjunction with others: (i) during my employment, whether or not during regular working hours,\non Company premises, or with Company materials, and/or (ii) after the termination of my employment, if such Work Product is based on or related\nto, or arises or results from, any work performed by me for the Company or on behalf of any Company Affiliate during my employment. I agree to\ndisclose promptly and fully to the Company all such Work Product. I also agree to treat all such Work Product as Confidential Information except\nto\nthe extent specifically directed otherwise by the Company and/or any Company Affiliate.\nUpdated: January 2011\n2\nb. I agree to and hereby do assign to the Company and/or any Company Affiliate all right, title, and interest, including all intellectual property\nrights, in and to all Work Product designated in the previous sub-paragraph as the property of the Company and/or any Company Affiliate, including,\nwithout limitation, the assignment of right to claim priority. To the extent that any such Work Product, or portion of such Work Product, is protected\nunder the U.S. Copyright laws, such Work Product shall be considered a "Work Made for Hire" as defined in the U.S. Copyright laws, and shall\nautomatically be owned by the Company and/or any Company Affiliate. During and after my employment, I agree to cooperate fully with the\nCompany and/or any Company Affiliate in the protection (including any litigation or controversy) of any intellectual property rights derived from or\nrelated to its Work Product.\n5. At the end of my employment, regardless of how or why the employment ends, I will surrender and return to the Company any and all property of\nthe Company and/or any Company Affiliate, as well as all copies of written or electronic records of Confidential Information in my possession or\ncontrol.\n6. I agree that, as a result of my exposure to Confidential Information, my responsibilities as an executive of the Company, and my association with\nthe Company and/or any Company Affiliate, their products and technologies, goodwill, and customers and business relationships, I will be in\na\nposition to cause irreparable harm to the Company and/or any Company Affiliate. Thus, during my employment and for eighteen (18) months after\nthe end of such employment, regardless of how or why my employment ends, I will not directly or indirectly:\na. Engage in any Competitive Activities if those Competitive Activities would be similar to the services I performed within the last three\n(3) years of my employment.\nb. Organize, establish, or operate as a Competitor.\nC. Engage in any Competitive Activities if, in the performance of those Competitive Activities, I would reasonably be expected to use or would\ninevitably use any Confidential Information learned by me during my employment.\nd. Contact or solicit business from, in a manner competitive with or adverse to the interests of the Company and/or any Company Affiliate, any\ncustomer or potential customer of the Company and/or any Company Affiliate with whom I had contact or for whom I provided services during the\nlast twelve (12) months of my employment.\ne. Solicit or induce any employee of the Company and/or any Company Affiliate to leave the employment of the Company and/or the\nCompany Affiliate.\nf. Hire or otherwise engage the services of any employee of the Company and/or any Company Affiliate.\ng. Assist any Competitor or Adverse Party in taking any of the actions described in subparagraphs (d) through (f) immediately above.\nUpdated: January 2011\n3\nI agree that the Company and/or any Company Affiliate develops, manufactures, markets, and/or sells cigarettes and cigarette-related products\nor technologies that are, or are intended to be, marketed and/or sold throughout the United States, and that my duties will pertain to such products or\ntechnologies and therefore affect the business of the Company and/or any Company Affiliate throughout the United States. I also agree that the\nCompany and/or any Company Affiliate develops, manufactures, markets, and/or sells smokeless tobacco, cigars, wine and other products and\nassociated technologies that are, or are intended to be, marketed and/or sold throughout the United States and foreign countries, and that my duties\nwill pertain to such products or technologies and therefore affect the business of the Company and/or any Company Affiliate throughout the United\nStates and such foreign countries. I further agree that the activities prohibited by this paragraph 6 would be harmful to the Company and/or any\nCompany Affiliate regardless of where those activities occur and that my exposure to Confidential Information, in particular, would give me and any\nCompetitor for whom I provide services an unfair economic advantage. Therefore, I agree that the scope of the restrictions of subparagraphs 6(a) and\n(b) above pertain to: (1) the development, manufacturing, marketing, and/or sale by any Competitor of any cigarettes and cigarette-related products\nor technologies intended for marketing and/or sale in the United States; and (2) the development, manufacturing, marketing, and/or sale by any\nCompetitor of any smokeless tobacco, cigars, wine or other products and associated technologies intended for marketing and/or sale in the United\nStates or intended for marketing and/or sale in any foreign country that the Company and/or any Company Affiliate markets and/or sells similar\nproducts or technologies. I understand that the restrictions of subparagraphs 6(c) through (g) above are tied to information, employees, and/or\ncustomers of the Company and/or any Company Affiliate and therefore are limited in that manner rather than geographically.\nI understand and agree that if at any time I hold an active license to practice law in any jurisdiction, the restrictions of subparagraphs 6(a)\nthrough (g) above do not prohibit me from the practice of law in that jurisdiction and the restrictions of subparagraphs 6(a) through (g) above\nshall\nbe interpreted to prohibit my activities only to the extent consistent with the applicable rules of professional conduct for that jurisdiction.\n7.\nIf I am offered and want to accept employment with a Competitor or Adverse Party during my employment or the eighteen (18) month period\nfollowing the end of my employment, then prior to my acceptance of such employment I will inform the Company in writing of the identity of the\nCompetitor or Adverse Party, my proposed duties for that Competitor or Adverse Party, and the proposed starting date of that employment. I also\nagree that I will inform the Competitor or Adverse Party of the terms of this Agreement.\n8.\nI agree that, after the end of my employment, I may engage in any business activity or gainful employment of any type and in any place except as\ndescribed above. I agree that I will be reasonably able to earn a livelihood without violating the terms of this Agreement.\n9. I agree that the Company and/or any Company Affiliate are beneficiaries of this Agreement and have a legitimate business interest in preventing\nme from taking any actions that\nUpdated: January 2011\n4\nwould violate this Agreement. I further agree that the Company and/or any Company Affiliate (individually and taken as a whole) would\nbe\nirreparably harmed if I violated the terms of this Agreement or if any of its terms were not specifically enforced and that money damages would not\nprovide adequate relief. I therefore agree that if I violate or threaten to violate any term of this Agreement, the Company and/or any Company\nAffiliate shall be entitled to injunctive relief, specific performance, any other equitable remedies, and any and all remedies at law, plus its costs and\nattorneys' fees incurred to enforce this Agreement or to obtain any other relief.\n10. I agree that if the Company and/or any Company Affiliate waive or allow any breach of this Agreement, that waiver or allowance will not be\na\nwaiver of any future or other breach, whether of a similar or dissimilar nature.\n11. I agree that each provision of this Agreement is a separate and independent clause. If any clause is found to be unenforceable, that will not impair\nthe enforceability of any other clauses. Further, if any provisions of this Agreement should ever be deemed to exceed the time, geographic area, or\nactivity limitations permitted by applicable law, I agree that such provisions should be and are reformed to the maximum time, geographic area, and\nactivity limitations permitted by applicable law. I authorize a court having jurisdiction to reform the provisions to the maximum time, geographic\narea, and activity limitations permitted by applicable law.\n12. I agree that this Agreement may not be changed, modified or otherwise terminated, in whole or in part, unless agreed to in writing by me, on my\nown behalf, and the Altria Client Services Senior Vice President of Human Resources & Compliance, on behalf of the Company.\n13. I agree that this Agreement constitutes the entire agreement between me and the Company and supersedes any previous agreement I may have\nexecuted with the Company or any Company Affiliate on the topics covered by this Agreement I further agree that the Company has made no other\nrepresentations to me on the topics covered by this Agreement.\n14. I agree that my employment with the Company is at-will and for no fixed duration. Either the Company or I may terminate the employment\nrelationship at any time, for any reason that either the Company or I may deem appropriate, regardless of whether or not I have violated any term of\nthis Agreement. I further agree that the restrictions set forth in this Agreement will apply regardless of the reason or circumstances of the termination\nof my employment.\n15. I agree that, for purposes of this Agreement, my employment means and includes any periods of employment with the Company or any\nCompany Affiliate after I sign this Agreement. I agree that, if I transfer employment to a Company Affiliate, the terms and conditions of this\nAgreement shall continue in full force and effect, and all rights and obligations belonging to the Company under this Agreement will transfer or\notherwise inure to the Company Affiliate to which I transfer.\n16. I agree that this Agreement will be governed by and interpreted in accordance with the laws of the Commonwealth of Virginia. Any dispute\narising between the parties related to or involving this Agreement will be litigated in a court having jurisdiction in the Commonwealth of\nUpdated: January 2011\n5\nVirginia, and I agree and stipulate that the Circuit Courts of the City of Richmond, Virginia and the surrounding counties, and the United States\nDistrict Court for the Eastern District of Virginia, Richmond Division, shall have personal jurisdiction over me and that venue is proper in such\ncourts for all actions or proceedings with respect to this Agreement.\nExecutive's Name\nExecutive's Signature\nPersonnel Number\nDate\nUpdated: January 2011\n6	EX-10.3 4 dex103.htm FORM OF EXECUTIVE CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.3\nEXECUTIVE CONFIDENTIALITY AND NON-COMPETITION\nAGREEMENT\nIn consideration of my 2011 stock award and other good and valuable consideration, the sufficiency of which is acknowledged, the Company and I\nagree to this Executive Confidentiality and Non-Competition Agreement (“Agreement”).\n1. The following definitions apply to this Agreement:\na. “Company” means [Employer Name] and its successors and assigns.\nb. “Company Affiliate” means, excluding the Company itself, Altria Group, its wholly-owned subsidiaries and affiliates, and their successors\nand assigns.\nc. “I,” “me,” or “my” refers to [Executive Name].\nd. “Confidential Information” means information that is confidential and proprietary to the Company and/or any Company Affiliate, including\nbut not limited to: trade secrets; lists of and other non-public information about current and prospective customers; business plans or strategies; sales\nand account records; prices or pricing strategy or information; current and proposed advertising and promotional programs; research or development\nprojects or plans; non-public financial information; information relating to personnel, including compensation and other employment practices;\nmethods, systems, techniques, procedures, designs, formulae, inventions, and know-how; and other business information of a similar nature not\ngenerally known to the public, which if misused or disclosed, could adversely affect the business of the Company and/or any Company Affiliate.\nConfidential Information includes any such information that I may prepare or create during my employment, whether on behalf of the Company or\non behalf of any Company Affiliate to whom I am providing services, as well as such information that has been or may be created by others in those\ncapacities. Confidential Information does not include information that is generally known to the public or that has been made known to the public\nthrough no fault of my own.\ne. “Competitor” means any individual, group, company, enterprise, or other entity that develops, manufactures, markets, and/or sells tobacco,\nwine, or other products or technologies that compete (or upon introduction to the marketplace, will compete) with tobacco, wine, or other products or\ntechnologies that are manufactured, marketed, sold, and/or being developed by the Company and/or any Company Affiliate (including but not\nlimited to Philip Morris USA, U.S. Smokeless Tobacco Company, John Middleton Company, and Ste. Michelle Wine Estates). The term\n“Competitor” also includes any other entity under common ownership (in whole or in part) or legal affiliation with a competing entity, as identified\nin the preceding sentence, which provides support to such competing entity.\nUpdated: January 2011\nf. “Competitive Activities” means any employment with, engagement as a consultant or contractor for, rendering of any services to, or other\nmaterial assistance in any capacity to any Competitor.\ng. “Adverse Party” means any individual, group, company, union, governmental body or other entity, excluding a Competitor, that has\npecuniary and/or non-pecuniary interests known to be in opposition or otherwise adverse to those of the Company and/or any Company Affiliate.\n2. During the period of my employment, I will devote my full time and best efforts to the business of the Company and/or any Company Affiliate,\nand I will not take any action that conflicts with the interests of the Company and/or any Company Affiliate. Moreover, I further agree that, during\nmy period of employment, I will take no action that conflicts with or infringes on the rights or interests of any third party for which I have performed\nservices either as an employee, consultant, or contractor. Specifically, I agree that, during the period of my employment, I am not to use or disclose\nany confidential or proprietary information of any third party or otherwise violate any written or verbal agreement I may have entered into with any\nthird party while performing services as an employee, consultant, or contractor of that third party.\n3. Except as authorized by the Company and/or any Company Affiliate or as required by law, I will not at any time during my employment or after\nthe termination of my employment for whatever reason: (a) disclose any Confidential Information to any person, company, agency, institution, or\nother entity, or (b) use any Confidential Information for my own benefit or the benefit of any person, company, agency, institution, or other entity\nexcept the Company and/or any Company Affiliate. I agree that all Confidential Information is, and at all times remains, the property of the\nCompany and/or any Company Affiliate.\n4. I agree that, as used in this Agreement, “Work Product” means and includes all of the following: any invention, discovery, process, method,\ntechnique, formula, concept, idea, work of authorship, and improvement thereof, whether or not it may be protected under patent, copyright,\ntrademark, trade secret or other principles, that is related to the business, anticipated business, research, development, design activities or products of\nthe Company and/or any Company Affiliate.\na. I agree that the Company and/or any Company Affiliate shall have sole and exclusive proprietary rights in and to all Work Product that is\nconceived, developed, or made by me alone or in conjunction with others: (i) during my employment, whether or not during regular working hours,\non Company premises, or with Company materials, and/or (ii) after the termination of my employment, if such Work Product is based on or related\nto, or arises or results from, any work performed by me for the Company or on behalf of any Company Affiliate during my employment. I agree to\ndisclose promptly and fully to the Company all such Work Product. I also agree to treat all such Work Product as Confidential Information except to\nthe extent specifically directed otherwise by the Company and/or any Company Affiliate.\nUpdated: January 2011\n2\nb. I agree to and hereby do assign to the Company and/or any Company Affiliate all right, title, and interest, including all intellectual property\nrights, in and to all Work Product designated in the previous sub-paragraph as the property of the Company and/or any Company Affiliate, including,\nwithout limitation, the assignment of right to claim priority. To the extent that any such Work Product, or portion of such Work Product, is protected\nunder the U.S. Copyright laws, such Work Product shall be considered a “Work Made for Hire” as defined in the U.S . Copyright laws, and shall\nautomatically be owned by the Company and/or any Company Affiliate. During and after my employment, I agree to cooperate fully with the\nCompany and/or any Company Affiliate in the protection (including any litigation or controversy) of any intellectual property rights derived from or\nrelated to its Work Product.\n5. At the end of my employment, regardless of how or why the employment ends, I will surrender and return to the Company any and all property of\nthe Company and/or any Company Affiliate, as well as all copies of written or electronic records of Confidential Information in my possession or\ncontrol.\n6. I agree that, as a result of my exposure to Confidential Information, my responsibilities as an executive of the Company, and my association with\nthe Company and/or any Company Affiliate, their products and technologies, goodwill, and customers and business relationships, I will be in a\nposition to cause irreparable harm to the Company and/or any Company Affiliate. Thus, during my employment and for eighteen (18) months after\nthe end of such employment, regardless of how or why my employment ends, I will not directly or indirectly:\na. Engage in any Competitive Activities if those Competitive Activities would be similar to the services I performed within the last three\n(3) years of my employment.\nb. Organize, establish, or operate as a Competitor.\nc. Engage in any Competitive Activities if, in the performance of those Competitive Activities, I would reasonably be expected to use or would\ninevitably use any Confidential Information learned by me during my employment.\nd. Contact or solicit business from, in a manner competitive with or adverse to the interests of the Company and/or any Company Affiliate, any\ncustomer or potential customer of the Company and/or any Company Affiliate with whom I had contact or for whom I provided services during the\nlast twelve (12) months of my employment.\ne. Solicit or induce any employee of the Company and/or any Company Affiliate to leave the employment of the Company and/or the\nCompany Affiliate.\nf. Hire or otherwise engage the services of any employee of the Company and/or any Company Affiliate.\ng. Assist any Competitor or Adverse Party in taking any of the actions described in subparagraphs (d) through (f) immediately above.\nUpdated: January 2011\n3\nI agree that the Company and/or any Company Affiliate develops, manufactures, markets, and/or sells cigarettes and cigarette-related products\nor technologies that are, or are intended to be, marketed and/or sold throughout the United States, and that my duties will pertain to such products or\ntechnologies and therefore affect the business of the Company and/or any Company Affiliate throughout the United States. I also agree that the\nCompany and/or any Company Affiliate develops, manufactures, markets, and/or sells smokeless tobacco, cigars, wine and other products and\nassociated technologies that are, or are intended to be, marketed and/or sold throughout the United States and foreign countries, and that my duties\nwill pertain to such products or technologies and therefore affect the business of the Company and/or any Company Affiliate throughout the United\nStates and such foreign countries. I further agree that the activities prohibited by this paragraph 6 would be harmful to the Company and/or any\nCompany Affiliate regardless of where those activities occur and that my exposure to Confidential Information, in particular, would give me and any\nCompetitor for whom I provide services an unfair economic advantage. Therefore, I agree that the scope of the restrictions of subparagraphs 6(a) and\n(b) above pertain to: (1) the development, manufacturing, marketing, and/or sale by any Competitor of any cigarettes and cigarette-related products\nor technologies intended for marketing and/or sale in the United States; and (2) the development, manufacturing, marketing, and/or sale by any\nCompetitor of any smokeless tobacco, cigars, wine or other products and associated technologies intended for marketing and/or sale in the United\nStates or intended for marketing and/or sale in any foreign country that the Company and/or any Company Affiliate markets and/or sells similar\nproducts or technologies. I understand that the restrictions of subparagraphs 6(c) through (g) above are tied to information, employees, and/or\ncustomers of the Company and/or any Company Affiliate and therefore are limited in that manner rather than geographically.\nI understand and agree that if at any time I hold an active license to practice law in any jurisdiction, the restrictions of subparagraphs 6(a)\nthrough (g) above do not prohibit me from the practice of law in that jurisdiction and the restrictions of subparagraphs 6(a) through (g) above shall\nbe interpreted to prohibit my activities only to the extent consistent with the applicable rules of professional conduct for that jurisdiction.\n7. If I am offered and want to accept employment with a Competitor or Adverse Party during my employment or the eighteen (18) month period\nfollowing the end of my employment, then prior to my acceptance of such employment I will inform the Company in writing of the identity of the\nCompetitor or Adverse Party, my proposed duties for that Competitor or Adverse Party, and the proposed starting date of that employment. I also\nagree that I will inform the Competitor or Adverse Party of the terms of this Agreement.\n8. I agree that, after the end of my employment, I may engage in any business activity or gainful employment of any type and in any place except as\ndescribed above. I agree that I will be reasonably able to earn a livelihood without violating the terms of this Agreement.\n9. I agree that the Company and/or any Company Affiliate are beneficiaries of this Agreement and have a legitimate business interest in preventing\nme from taking any actions that\nUpdated: January 2011\n4\nwould violate this Agreement. I further agree that the Company and/or any Company Affiliate (individually and taken as a whole) would be\nirreparably harmed if I violated the terms of this Agreement or if any of its terms were not specifically enforced and that money damages would not\nprovide adequate relief. I therefore agree that if I violate or threaten to violate any term of this Agreement, the Company and/or any Company\nAffiliate shall be entitled to injunctive relief, specific performance, any other equitable remedies, and any and all remedies at law, plus its costs and\nattorneys’ fees incurred to enforce this Agreement or to obtain any other relief.\n10. I agree that if the Company and/or any Company Affiliate waive or allow any breach of this Agreement, that waiver or allowance will not be a\nwaiver of any future or other breach, whether of a similar or dissimilar nature.\n11. I agree that each provision of this Agreement is a separate and independent clause. If any clause is found to be unenforceable, that will not impair\nthe enforceability of any other clauses. Further, if any provisions of this Agreement should ever be deemed to exceed the time, geographic area, or\nactivity limitations permitted by applicable law, I agree that such provisions should be and are reformed to the maximum time, geographic area, and\nactivity limitations permitted by applicable law. I authorize a court having jurisdiction to reform the provisions to the maximum time, geographic\narea, and activity limitations permitted by applicable law.\n12. I agree that this Agreement may not be changed, modified or otherwise terminated, in whole or in part, unless agreed to in writing by me, on my\nown behalf, and the Altria Client Services Senior Vice President of Human Resources & Compliance, on behalf of the Company.\n13. I agree that this Agreement constitutes the entire agreement between me and the Company and supersedes any previous agreement I may have\nexecuted with the Company or any Company Affiliate on the topics covered by this Agreement. I further agree that the Company has made no other\nrepresentations to me on the topics covered by this Agreement.\n14. I agree that my employment with the Company is at-will and for no fixed duration. Either the Company or I may terminate the employment\nrelationship at any time, for any reason that either the Company or I may deem appropriate, regardless of whether or not I have violated any term of\nthis Agreement. I further agree that the restrictions set forth in this Agreement will apply regardless of the reason or circumstances of the termination\nof my employment.\n15. I agree that, for purposes of this Agreement, my employment means and includes any periods of employment with the Company or any\nCompany Affiliate after I sign this Agreement. I agree that, if I transfer employment to a Company Affiliate, the terms and conditions of this\nAgreement shall continue in full force and effect, and all rights and obligations belonging to the Company under this Agreement will transfer or\notherwise inure to the Company Affiliate to which I transfer.\n16. I agree that this Agreement will be governed by and interpreted in accordance with the laws of the Commonwealth of Virginia. Any dispute\narising between the parties related to or involving this Agreement will be litigated in a court having jurisdiction in the Commonwealth of\nUpdated: January 2011\n5\nVirginia, and I agree and stipulate that the Circuit Courts of the City of Richmond, Virginia and the surrounding counties, and the United States\nDistrict Court for the Eastern District of Virginia, Richmond Division, shall have personal jurisdiction over me and that venue is proper in such\ncourts for all actions or proceedings with respect to this Agreement.\nExecutive’s Name\nExecutive’s Signature\nPersonnel Number\nDate\nUpdated: January 2011\n6
+2385feca03476ca2bf9acca525a12a60.pdf	effective_date jurisdiction party term	EX-99.(D)(4) 8 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of November 19, 2009, between Diedrich Coffee, Inc.\n(“Diedrich”), on the one hand, and Green Mountain Coffee Roasters, Inc. (“Green Mountain”), on the other. Diedrich and Green Mountain are\nreferred to collectively as the “Parties” and each is individually referred to as a “Party”).\nIn order to facilitate the consideration and negotiation of a possible transaction involving Diedrich and Green Mountain, each Party has\nrequested access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to\nin this Agreement as the “Recipient.”) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and\nregarding various related matters.\nThe Parties, intending to be legally bound, subject to Section 8(k), acknowledge and agree as follows:\n1. Limitations on Disclosure and Use of Confidential Information.\n(a) The Recipient will take reasonable precautions (consistent with the precautions it ordinarily takes to safeguard its own confidential\ndocuments) to safeguard the confidentiality of the Provider’s Confidential Information (as defined in section 7 below); provided, however, that:\n(i) the Recipient will be permitted to furnish and otherwise disclose the Provider’s Confidential Information to those of its Representatives who\nneed to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a possible transaction between the\nParties and who are advised or otherwise made aware that such Confidential Information is confidential; and (ii) the Recipient and its\nRepresentatives will be permitted to furnish and otherwise disclose the Provider’s Confidential Information to the extent that the Recipient or\nany of its Representatives determines in good faith that disclosure thereof is required by any law, rule, regulation, judicial order, administrative\norder, subpoena, interrogatory, discovery request, investigative demand or other legal requirement or legal process. If the Recipient or any of\nits Representatives determines in good faith that disclosure of any of Provider’s Confidential Information is required by any law, rule,\nregulation, judicial order, administrative order, subpoena, interrogatory, discovery request, investigative demand or other legal requirement or\nlegal process, then the Recipient or such Representative will provide prompt notice of such disclosure requirement and provide reasonable\ncooperation to the Provider in any attempt by the Provider to obtain a protective order or other appropriate remedy.\n(b) The Recipient will not, and the Recipient will take reasonable precautions to cause its Representatives not to, make use of any of the\nProvider’s Confidential Information, except for the specific purpose of considering, evaluating and negotiating a possible transaction between\nthe Parties.\n(c) Except to the extent required by any law, rule, regulation, judicial order, administrative order, subpoena, interrogatory, discovery\nrequest, investigative demand or other legal requirement or legal process, neither Party will make or permit any disclosure to any Person (other\nthan to such Party’s Representatives who agree not to permit or make any disclosure to any Person) regarding (i) the existence or terms of this\nAgreement, or the fact that Confidential Information has been made available to the Recipient or any of its Representatives, or (ii) the fact that\ndiscussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties (whether the Parties are\nidentified by name or by any description enabling a reasonable Person to discern a Party’s name), or the proposed terms of any such\ntransaction.\n(d) Access to the Provider’s Confidential Information shall not preclude an individual employee or other Representative of the Recipient\nwho has seen or otherwise had access to such Confidential Information for the purposes of this Agreement from working on future projects\nthat relate to similar subject matters, provided that such individual does not use or make reference to the Confidential Information in doing so.\n1\n2. No Representations by Provider. Neither the Provider nor any of its Representatives has made or is making any representation or warranty,\nexpress or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its\nRepresentatives will have any liability to the Recipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of the\nProvider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any)\nthat are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is\nvalidly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect.\n3. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will deliver to the\nProvider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s\nRepresentatives; provided, however, that, in lieu of delivering to the Provider any written materials of the type described in clause “(b)” of the first\nsentence of section 7 below, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their destruction.\nNotwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant to this\nsection 3, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n4. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any binding written agreement\nbetween the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with,\nand to enter into any agreement or transaction with, any other interested party; and (ii) except pursuant to this Agreement, such Party will not have\nany rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed\ntransaction involving the other Party.\n5. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended\nexcept by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision\nor provisions being waived or amended.\n6. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of California (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of California for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or\nproceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\nproceeding arising out of or relating to this Agreement in any state or federal court located in the State of California; and (d) irrevocably and\nunconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or\nproceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of California has been brought\nin an inconvenient forum.\n2\n7. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any confidential or proprietary information (including any confidential or proprietary technology, know-how, patent application, test\nresult, research study, business plan, budget, forecast or projection) relating to the business of the Provider, any predecessor entity or any\nsubsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that\nis made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\nand\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause “(a)” of this sentence;\nNotwithstanding the foregoing, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the\nRecipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such\ninformation was not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the\nProvider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is independently developed by the Recipient or any of the Recipient’s Representatives without the use of\nor reference to any of the Provider’s Confidential Information.\n8. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary\nor other affiliate of such Party or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party\nor of any of such Party’s subsidiaries or other affiliates.\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) In any action at law or suit in equity to enforce this Agreement or the rights of any of the Parties, the prevailing party in such action or\nsuit shall be entitled to receive its actual and reasonable attorneys’ fees and all other reasonable costs and expenses incurred in such action or\nsuit, including any related appeals.\n(d) In addition to all other remedies available (at law or otherwise) to a Party, each Party shall be entitled to equitable relief (including\ninjunction and specific performance) as a remedy for any breach or threatened breach of any provision of this Agreement, it being understood\nand agreed that monetary damages may not be a sufficient remedy. Neither Party shall be required to obtain, furnish or post any bond or\nsimilar instrument in connection with or as a condition to obtaining any remedy referred to in this paragraph “(d),” and each Party waives any\nright it may have to require that the other Party obtain, furnish or post any such bond or similar instrument.\n3\n(e) The obligations of the Recipient and the Recipient’s Representatives under Section 1 of this Agreement will terminate on the second\nanniversary of the date hereof.\n(f) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(g) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in\nany other situation or in any other jurisdiction.\n(h) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n(i) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that\nit is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall\nnot, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such\nmaterials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly,\nall Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nor doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties\nagree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(j) This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior\nagreement between the Parties regarding the subject matter hereof, including, without limitation, the Mutual Non-Disclosure Agreement, dated\nas of June 18, 2007, between the Parties, as amended by an Amendment No. 1 to Mutual Non-Disclosure Agreement, dated as of July 1, 2009,\nbetween the Parties.\n(k) Reference is made to that certain Agreement and Plan of Merger, dated as of November 2, 2009, by and among Peet’s Coffee & Tea,\nInc., a Washington corporation (“Peet’s”), Marty Acquisition Sub, Inc., a Delaware corporation, and Diedrich (as amended from time to time,\nthe “Merger Agreement”). Notwithstanding anything to the contrary in this Agreement, Diedrich shall not be required to comply with any\nterm of this Agreement if such compliance would result in, or would reasonably be expected to result in, the breach by Diedrich of any term of\nthe Merger Agreement, including, without limitation, the covenants of Diedrich thereunder to inform Peet’s of the existence of this Agreement\nand the terms of any proposed transaction between the Parties.\n4\nThe parties have caused this Agreement to be executed as of the date first written above.\nDIEDRICH COFFEE, INC.\nGREEN MOUNTAIN COFFEE ROASTERS, INC.\nBy:\n/s/ SEAN M. MCCARTHY\nBy:\n/s/ FRANCES G. RATHKE\nTitle:\nChief Financial Officer\nTitle:\nChief Financial Officer\nAddress:\n28 Executive Park, Suite 200\nIrvine, California 92614\nAddress:\n33 Coffee Lane\nWaterbury, VT 05676\n5	EX-99.(D)(4) 8 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of November 19, 2009, between Diedrich Coffee, Inc.\n(“Diedrich”), on the one hand, and Green Mountain Coffee Roasters, Inc. (“Green Mountain™), on the other. Diedrich and Green Mountain are\nreferred to collectively as the “Parties” and each is individually referred to as a “Party”).\nIn order to facilitate the consideration and negotiation of a possible transaction involving Diedrich and Green Mountain, each Party has\nrequested access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to\nin this Agreement as the “Recipient.”) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and\nregarding various related matters.\nThe Parties, intending to be legally bound, subject to Section 8(k), acknowledge and agree as follows:\n1. Limitations on Disclosure and Use of Confidential Information.\n(a) The Recipient will take reasonable precautions (consistent with the precautions it ordinarily takes to safeguard its own confidential\ndocuments) to safeguard the confidentiality of the Provider’s Confidential Information (as defined in section 7 below); provided, however, that:\n(i) the Recipient will be permitted to furnish and otherwise disclose the Provider’s Confidential Information to those of its Representatives who\nneed to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a possible transaction between the\nParties and who are advised or otherwise made aware that such Confidential Information is confidential; and (ii) the Recipient and its\nRepresentatives will be permitted to furnish and otherwise disclose the Provider’s Confidential Information to the extent that the Recipient or\nany of its Representatives determines in good faith that disclosure thereof is required by any law, rule, regulation, judicial order, administrative\norder, subpoena, interrogatory, discovery request, investigative demand or other legal requirement or legal process. If the Recipient or any of\nits Representatives determines in good faith that disclosure of any of Provider’s Confidential Information is required by any law, rule,\nregulation, judicial order, administrative order, subpoena, interrogatory, discovery request, investigative demand or other legal requirement or\nlegal process, then the Recipient or such Representative will provide prompt notice of such disclosure requirement and provide reasonable\ncooperation to the Provider in any attempt by the Provider to obtain a protective order or other appropriate remedy.\n(b) The Recipient will not, and the Recipient will take reasonable precautions to cause its Representatives not to, make use of any of the\nProvider’s Confidential Information, except for the specific purpose of considering, evaluating and negotiating a possible transaction between\nthe Parties.\n(c) Except to the extent required by any law, rule, regulation, judicial order, administrative order, subpoena, interrogatory, discovery\nrequest, investigative demand or other legal requirement or legal process, neither Party will make or permit any disclosure to any Person (other\nthan to such Party’s Representatives who agree not to permit or make any disclosure to any Person) regarding (i) the existence or terms of this\nAgreement, or the fact that Confidential Information has been made available to the Recipient or any of its Representatives, or (ii) the fact that\ndiscussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties (whether the Parties are\nidentified by name or by any description enabling a reasonable Person to discern a Party’s name), or the proposed terms of any such\ntransaction.\n(d) Access to the Provider’s Confidential Information shall not preclude an individual employee or other Representative of the Recipient\nwho has seen or otherwise had access to such Confidential Information for the purposes of this Agreement from working on future projects\nthat relate to similar subject matters, provided that such individual does not use or make reference to the Confidential Information in doing so.\n1\n2. No Representations by Provider. Neither the Provider nor any of its Representatives has made or is making any representation or warranty,\nexpress or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its\nRepresentatives will have any liability to the Recipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of the\nProvider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any)\nthat are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is\nvalidly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect.\n3. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will deliver to the\nProvider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s\nRepresentatives; provided, however, that, in lieu of delivering to the Provider any written materials of the type described in clause “(b)” of the first\nsentence of section 7 below, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their destruction.\nNotwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant to this\nsection 3, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n4. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any binding written agreement\nbetween the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with,\nand to enter into any agreement or transaction with, any other interested party; and (ii) except pursuant to this Agreement, such Party will not have\nany rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed\ntransaction involving the other Party.\n5. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended\nexcept by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision\nor provisions being waived or amended.\n6. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of California (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of California for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or\nproceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\nproceeding arising out of or relating to this Agreement in any state or federal court located in the State of California; and (d) irrevocably and\nunconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or\nproceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of California has been brought\nin an inconvenient forum.\n7. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any confidential or proprietary information (including any confidential or proprietary technology, know-how, patent application, test\nresult, research study, business plan, budget, forecast or projection) relating to the business of the Provider, any predecessor entity or any\nsubsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that\nis made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\nand\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause “(a)” of this sentence;\nNotwithstanding the foregoing, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the\nRecipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such\ninformation was not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the\nProvider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is independently developed by the Recipient or any of the Recipient’s Representatives without the use of\nor reference to any of the Provider’s Confidential Information.\n8. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary\nor other affiliate of such Party or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party\nor of any of such Party’s subsidiaries or other affiliates.\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) In any action at law or suit in equity to enforce this Agreement or the rights of any of the Parties, the prevailing party in such action or\nsuit shall be entitled to receive its actual and reasonable attorneys’ fees and all other reasonable costs and expenses incurred in such action or\nsuit, including any related appeals.\n(d) In addition to all other remedies available (at law or otherwise) to a Party, each Party shall be entitled to equitable relief (including\ninjunction and specific performance) as a remedy for any breach or threatened breach of any provision of this Agreement, it being understood\nand agreed that monetary damages may not be a sufficient remedy. Neither Party shall be required to obtain, furnish or post any bond or\nsimilar instrument in connection with or as a condition to obtaining any remedy referred to in this paragraph “(d),” and each Party waives any\nright it may have to require that the other Party obtain, furnish or post any such bond or similar instrument.\n3\n(e) The obligations of the Recipient and the Recipient’s Representatives under Section 1 of this Agreement will terminate on the second\nanniversary of the date hereof.\n(f) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(g) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in\nany other situation or in any other jurisdiction.\n(h) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n(i) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that\nit is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall\nnot, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such\nmaterials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly,\nall Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nor doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties\nagree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(j) This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior\nagreement between the Parties regarding the subject matter hereof, including, without limitation, the Mutual Non-Disclosure Agreement, dated\nas of June 18, 2007, between the Parties, as amended by an Amendment No. 1 to Mutual Non-Disclosure Agreement, dated as of July 1, 2009,\nbetween the Parties.\n(k) Reference is made to that certain Agreement and Plan of Merger, dated as of November 2, 2009, by and among Peet’s Coffee & Tea,\nInc., a Washington corporation (“Peet’s”), Marty Acquisition Sub, Inc., a Delaware corporation, and Diedrich (as amended from time to time,\nthe “Merger Agreement”). Notwithstanding anything to the contrary in this Agreement, Diedrich shall not be required to comply with any\nterm of this Agreement if such compliance would result in, or would reasonably be expected to result in, the breach by Diedrich of any term of\nthe Merger Agreement, including, without limitation, the covenants of Diedrich thereunder to inform Peet’s of the existence of this Agreement\nand the terms of any proposed transaction between the Parties.\nThe parties have caused this Agreement to be executed as of the date first written above. DIEDRICH COFFEE, INC. By:\nTitle:\nAddress:\n/s/\nSEAN M. MCCARTHY\nChief Financial Officer\n28 Executive Park, Suite 200\nIrvine, California 92614\nGREEN MOUNTAIN COFFEE ROASTERS, INC.\nBy; /s/  FRANCES G. RATHKE\nTitle: Chief Financial Officer\nAddress: 33 Coffee Lane\nWaterbury, VT 05676	EX-99.(D)(4) 8 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT ("Agreement") is being entered into as of November 19, 2009, between Diedrich Coffee, Inc.\n("Diedrich"), on the one hand, and Green Mountain Coffee Roasters, Inc. ("Green Mountain"), on the other. Diedrich and Green Mountain are\nreferred to collectively as the "Parties" and each is individually referred to as a "Party").\nIn order to facilitate the consideration and negotiation of a possible transaction involving Diedrich and Green Mountain, each Party has\nrequested access to certain non-public information regarding the other Party and the other Party's subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the "Provider"; and each Party, in its capacity as a recipient of information, is referred to\nin this Agreement as the "Recipient.") This Agreement sets forth the Parties' obligations regarding the use and disclosure of such information and\nregarding various related matters.\nThe Parties, intending to be legally bound, subject to Section 8(k), acknowledge and agree as follows:\n1. Limitations on Disclosure and Use of Confidentia Information.\n(a) The Recipient will take reasonable precautions (consistent with the precautions it ordinarily takes to safeguard its own confidential\ndocuments) to safeguard the confidentiality of the Provider's Confidential Information (as defined in section 7 below); provided, however, that:\n(i) the Recipient will be permitted to furnish and otherwise disclose the Provider's Confidentia Information to those of its Representatives who\nneed to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a possible transaction between the\nParties and who are advised or otherwise made aware that such Confidential Information is confidential; and (ii) the Recipient and its\nRepresentatives will be permitted to furnish and otherwise disclose the Provider's Confidential Information to the extent that the Recipient or\nany of its Representatives determines in good faith that disclosure thereof is required by any law, rule, regulation, judicial order, administrative\norder, subpoena, interrogatory, discovery request, investigative demand or other legal requirement or legal process. If the Recipient or any of\nits Representatives determines in good faith that disclosure of any of Provider's Confidential Information is required by any law, rule,\nregulation, judicial order, administrative order, subpoena, interrogatory, discovery request, investigative demand or other legal requirement or\nlegal process, then the Recipient or such Representative will provide prompt notice of such disclosure requirement and provide reasonable\ncooperation to the Provider in any attempt by the Provider to obtain a protective order or other appropriate remedy.\n(b) The Recipient will not, and the Recipient will take reasonable precautions to cause its Representatives not to, make use of any of the\nProvider's Confidential Information, except for the specific purpose of considering, evaluating and negotiating a possible transaction between\nthe Parties.\n(c) Except to the extent required by any law, rule, regulation, judicial order, administrative order, subpoena, interrogatory, discovery\nrequest, investigative demand or other legal requirement or legal process, neither Party will make or permit any disclosure to any Person (other\nthan\nto\nsuch\nParty's\nRepresentatives\nwho\nagree\nnot\nto\npermit\nor\nmake\nany\ndisclosure\nto\nany\nPerson)\nregarding\n(i)\nthe\nexistence\nor\nterms\nof\nthis\nAgreement, or the fact that Confidential Information has been made available to the Recipient or any of its Representatives, or (ii) the fact that\ndiscussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties (whether the Parties are\nidentified by name or by any description enabling a reasonable Person to discern a Party's name), or the proposed terms of any such\ntransaction.\n(d) Access to the Provider's Confidential Information shall not preclude an individual employee or other Representative of the Recipient\nwho has seen or otherwise had access to such Confidential Information for the purposes of this Agreement from working on future projects\nthat relate to similar subject matters, provided that such individual does not use or make reference to the Confidential Information in doing so.\n1\n2. No Representations by Provider. Neither the Provider nor any of its Representatives has made or is making any representation or warranty,\nexpress or implied, as to the accuracy or completeness of any of the Provider's Confidential Information, and neither the Provider nor any of its\nRepresentatives will have any liability to the Recipient or to any of the Recipient's Representatives relating to or resulting from the use of any of the\nProvider's Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any)\nthat are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is\nvalidly executed on behalf of the Parties (a "Definitive Agreement") will have legal effect.\n3. Return of Confidential Information. Upon the Provider's request, the Recipient and the Recipient's Representatives will deliver to the\nProvider any of the Provider's Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient's\nRepresentatives; provided, however, that, in lieu of delivering to the Provider any written materials of the type described in clause "(b)" of the first\nsentence of section 7 below, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their destruction.\nNotwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant to this\nsection 3, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n4.\nNo Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any binding written agreement\nbetween the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with,\nand to enter into any agreement or transaction with, any other interested party; and (ii) except pursuant to this Agreement, such Party will not have\nany rights or claims against the other Party or any of the other Party's Representatives arising out of or relating to any transaction or proposed\ntransaction involving the other Party.\n5. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended\nexcept by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision\nor provisions being waived or amended.\n6. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of California (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of California for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or\nproceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit\nor\nproceeding arising out of or relating to this Agreement in any state or federal court located in the State of California; and (d) irrevocably and\nunconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or\nproceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of California has been brought\nin an inconvenient forum.\n2\n7. Confidential Information. For purposes of this Agreement, the Provider's "Confidential Information" will be deemed to include only the\nfollowing:\n(a) any confidential or proprietary information (including any confidential or proprietary technology, know-how, patent application, test\nresult, research study, business plan, budget, forecast or projection) relating to the business of the Provider, any predecessor entity or any\nsubsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that\nis\nmade available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\nand\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause "(a)" of this sentence;\nNotwithstanding the foregoing, the Provider's "Confidential Information" will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure\nof\nany of such information by the Recipient or by any of the Recipient's Representatives;\n(ii) any information that was in the Recipient's possession prior to the time it was first made available to the Recipient or any of the\nRecipient's Representatives by or on behalf of the Provider or any of the Provider's Representatives, provided that the source of such\ninformation was not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the\nProvider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider's Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is independently developed by the Recipient or any of the Recipient's Representatives without the use of\nor reference to any of the Provider's Confidential Information.\n8. Miscellaneous.\n(a) For purposes of this Agreement, a Party's "Representatives" will be deemed to include each Person that is or becomes (i) a subsidiary\nor other affiliate of such Party or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party\nor of any of such Party's subsidiaries or other affiliates.\n(b) The term "Person," as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) In any action at law or suit in equity to enforce this Agreement or the rights of any of the Parties, the prevailing party in such action or\nsuit shall be entitled to receive its actual and reasonable attorneys' fees and all other reasonable costs and expenses incurred in such action or\nsuit, including any related appeals.\n(d) In addition to all other remedies available (at law or otherwise) to a Party, each Party shall be entitled to equitable relief (including\ninjunction and specific performance) as a remedy for any breach or threatened breach of any provision of this Agreement, it being understood\nand agreed that monetary damages may not be a sufficient remedy. Neither Party shall be required to obtain, furnish or post any bond or\nsimilar instrument in connection with or as a condition to obtaining any remedy referred to in this paragraph "(d)," and each Party waives any\nright it may have to require that the other Party obtain, furnish or post any such bond or similar instrument.\n3\n(e) The obligations of the Recipient and the Recipient's Representatives under Section 1 of this Agreement will terminate on the second\nanniversary of the date hereof.\n(f) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(g) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in\nany other situation or in any other jurisdiction.\n(h) By making Confidential Information or other information available to the Recipient or the Recipient's Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n(i) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that\nit is the Parties' mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall\nnot, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such\nmaterials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly,\nall Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nor doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties\nagree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(j) This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior\nagreement between the Parties regarding the subject matter hereof, including, without limitation, the Mutual Non-Disclosure Agreement, dated\nas of June 18, 2007, between the Parties, as amended by an Amendment No. 1 to Mutual Non-Disclosure Agreement, dated as of July 1, 2009,\nbetween the Parties.\n(k) Reference is made to that certain Agreement and Plan of Merger, dated as of November 2, 2009, by and among Peet's Coffee & Tea,\nInc., a Washington corporation ("Peet's"), Marty Acquisition Sub, Inc., a Delaware corporation, and Diedrich (as amended from time to time,\nthe "Merger Agreement"). Notwithstanding anything to the contrary in this Agreement, Diedrich shall not be required to comply with any\nterm of this Agreement if such compliance would result in, or would reasonably be expected to result in, the breach by Diedrich of any term of\nthe Merger Agreement, including, without limitation, the covenants of Diedrich thereunder to inform Peet's of the existence of this Agreement\nand the terms of any proposed transaction between the Parties.\n4\nThe parties have caused this Agreement to be executed as of the date first written above.\nDIEDRICH COFFEE, INC.\nGREEN MOUNTAIN COFFEE ROASTERS, INC.\nBy:\n/s/ SEAN M. MCCARTHY\nBy:\n/s/ FRANCES G. RATHKE\nTitle:\nChief Financial Officer\nTitle:\nChief Financial Officer\nAddress:\n28 Executive Park, Suite 200\nAddress:\n33 Coffee Lane\nIrvine, California 92614\nWaterbury, VT 05676\n5	EX-99.(D)(4) 8 dex99d4.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of November 19, 2009, between Diedrich Coffee, Inc.\n(“Diedrich”), on the one hand, and Green Mountain Coffee Roasters, Inc. (“Green Mountain”), on the other. Diedrich and Green Mountain are\nreferred to collectively as the “Parties” and each is individually referred to as a “Party”).\nIn order to facilitate the consideration and negotiation of a possible transaction involving Diedrich and Green Mountain, each Party has\nrequested access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to\nin this Agreement as the “Recipient.”) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and\nregarding various related matters.\nThe Parties, intending to be legally bound, subject to Section 8(k), acknowledge and agree as follows:\n1. Limitations on Disclosure and Use of Confidential Information.\n(a) The Recipient will take reasonable precautions (consistent with the precautions it ordinarily takes to safeguard its own confidential\ndocuments) to safeguard the confidentiality of the Provider’s Confidential Information (as defined in section 7 below); provided, however, that:\n(i) the Recipient will be permitted to furnish and otherwise disclose the Provider’s Confidential Information to those of its Representatives who\nneed to know such Confidential Information for the purpose of helping the Recipient evaluate or negotiate a possible transaction between the\nParties and who are advised or otherwise made aware that such Confidential Information is confidential; and (ii) the Recipient and its\nRepresentatives will be permitted to furnish and otherwise disclose the Provider’s Confidential Information to the extent that the Recipient or\nany of its Representatives determines in good faith that disclosure thereof is required by any law, rule, regulation, judicial order, administrative\norder, subpoena, interrogatory, discovery request, investigative demand or other legal requirement or legal process. If the Recipient or any of\nits Representatives determines in good faith that disclosure of any of Provider’s Confidential Information is required by any law, rule,\nregulation, judicial order, administrative order, subpoena, interrogatory, discovery request, investigative demand or other legal requirement or\nlegal process, then the Recipient or such Representative will provide prompt notice of such disclosure requirement and provide reasonable\ncooperation to the Provider in any attempt by the Provider to obtain a protective order or other appropriate remedy.\n(b) The Recipient will not, and the Recipient will take reasonable precautions to cause its Representatives not to, make use of any of the\nProvider’s Confidential Information, except for the specific purpose of considering, evaluating and negotiating a possible transaction between\nthe Parties.\n(c) Except to the extent required by any law, rule, regulation, judicial order, administrative order, subpoena, interrogatory, discovery\nrequest, investigative demand or other legal requirement or legal process, neither Party will make or permit any disclosure to any Person (other\nthan to such Party’s Representatives who agree not to permit or make any disclosure to any Person) regarding (i) the existence or terms of this\nAgreement, or the fact that Confidential Information has been made available to the Recipient or any of its Representatives, or (ii) the fact that\ndiscussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties (whether the Parties are\nidentified by name or by any description enabling a reasonable Person to discern a Party’s name), or the proposed terms of any such\ntransaction.\n(d) Access to the Provider’s Confidential Information shall not preclude an individual employee or other Representative of the Recipient\nwho has seen or otherwise had access to such Confidential Information for the purposes of this Agreement from working on future projects\nthat relate to similar subject matters, provided that such individual does not use or make reference to the Confidential Information in doing so.\n1\n2. No Representations by Provider. Neither the Provider nor any of its Representatives has made or is making any representation or warranty,\nexpress or implied, as to the accuracy or completeness of any of the Provider’s Confidential Information, and neither the Provider nor any of its\nRepresentatives will have any liability to the Recipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of the\nProvider’s Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any)\nthat are included in any final definitive written agreement that provides for the consummation of a negotiated transaction between the Parties and is\nvalidly executed on behalf of the Parties (a “Definitive Agreement”) will have legal effect.\n3. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will deliver to the\nProvider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s\nRepresentatives; provided, however, that, in lieu of delivering to the Provider any written materials of the type described in clause “(b)” of the first\nsentence of section 7 below, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their destruction.\nNotwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant to this\nsection 3, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n4. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any binding written agreement\nbetween the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with,\nand to enter into any agreement or transaction with, any other interested party; and (ii) except pursuant to this Agreement, such Party will not have\nany rights or claims against the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed\ntransaction involving the other Party.\n5. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended\nexcept by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision\nor provisions being waived or amended.\n6. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of California (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of California for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth opposite the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or\nproceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or\nproceeding arising out of or relating to this Agreement in any state or federal court located in the State of California; and (d) irrevocably and\nunconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or\nproceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of California has been brought\nin an inconvenient forum.\n2\n7. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any confidential or proprietary information (including any confidential or proprietary technology, know-how, patent application, test\nresult, research study, business plan, budget, forecast or projection) relating to the business of the Provider, any predecessor entity or any\nsubsidiary or other affiliate of the Provider (whether prepared by the Provider or by any other Person and whether or not in written form) that\nis made available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\nand\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or\nindirectly upon any information of the type referred to in clause “(a)” of this sentence;\nNotwithstanding the foregoing, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the\nRecipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such\ninformation was not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the\nProvider or to any other Person with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is independently developed by the Recipient or any of the Recipient’s Representatives without the use of\nor reference to any of the Provider’s Confidential Information.\n8. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary\nor other affiliate of such Party or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party\nor of any of such Party’s subsidiaries or other affiliates.\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) In any action at law or suit in equity to enforce this Agreement or the rights of any of the Parties, the prevailing party in such action or\nsuit shall be entitled to receive its actual and reasonable attorneys’ fees and all other reasonable costs and expenses incurred in such action or\nsuit, including any related appeals.\n(d) In addition to all other remedies available (at law or otherwise) to a Party, each Party shall be entitled to equitable relief (including\ninjunction and specific performance) as a remedy for any breach or threatened breach of any provision of this Agreement, it being understood\nand agreed that monetary damages may not be a sufficient remedy. Neither Party shall be required to obtain, furnish or post any bond or\nsimilar instrument in connection with or as a condition to obtaining any remedy referred to in this paragraph “(d),” and each Party waives any\nright it may have to require that the other Party obtain, furnish or post any such bond or similar instrument.\n3\n(e) The obligations of the Recipient and the Recipient’s Representatives under Section 1 of this Agreement will terminate on the second\nanniversary of the date hereof.\n(f) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(g) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in\nany other situation or in any other jurisdiction.\n(h) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n(i) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending,\nthreatened or prospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a\ncommonality of interest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that\nit is the Parties’ mutual desire, intention and understanding that the sharing of such materials and other information is not intended to, and shall\nnot, affect the confidentiality of any of such materials or other information or waive or diminish the continued protection of any of such\nmaterials or other information under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly,\nall Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nor doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense doctrine, and the Parties\nagree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n(j) This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior\nagreement between the Parties regarding the subject matter hereof, including, without limitation, the Mutual Non-Disclosure Agreement, dated\nas of June 18, 2007, between the Parties, as amended by an Amendment No. 1 to Mutual Non-Disclosure Agreement, dated as of July 1, 2009,\nbetween the Parties.\n(k) Reference is made to that certain Agreement and Plan of Merger, dated as of November 2, 2009, by and among Peet’s Coffee & Tea,\nInc., a Washington corporation (“Peet’s”), Marty Acquisition Sub, Inc., a Delaware corporation, and Diedrich (as amended from time to time,\nthe “Merger Agreement”). Notwithstanding anything to the contrary in this Agreement, Diedrich shall not be required to comply with any\nterm of this Agreement if such compliance would result in, or would reasonably be expected to result in, the breach by Diedrich of any term of\nthe Merger Agreement, including, without limitation, the covenants of Diedrich thereunder to inform Peet’s of the existence of this Agreement\nand the terms of any proposed transaction between the Parties.\n4\nThe parties have caused this Agreement to be executed as of the date first written above.\nDIEDRICH COFFEE, INC.\nGREEN MOUNTAIN COFFEE ROASTERS, INC.\nBy:\n/s/ SEAN M. MCCARTHY\nBy:\n/s/ FRANCES G. RATHKE\nTitle:\nChief Financial Officer\nTitle:\nChief Financial Officer\nAddress:\n28 Executive Park, Suite 200\nIrvine, California 92614\nAddress:\n33 Coffee Lane\nWaterbury, VT 05676\n5
+2464daf5ceb9add8636d6fcb3c803d29.pdf	effective_date jurisdiction party term	EX-10 .3 4 ex10-3 .htm\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (this “NDA”) is made as of December 9th, 2014 (the “Effective Date”) by and between DigiPath,\nInc., located at 6450 Cameron Street, Suite 113, Las Vegas, Nevada 89118 (“Discloser”), and W-Net, Inc. (“Recipient”).\n1. Scope of NDA. This NDA governs all disclosures of Confidential Information by Discloser in the course of exploring one or more strategic\nbusiness transactions or relationships with Recipient (“Strategic Discussions”).\n2. Definitions. “Confidential Information” means any of Discloser ’s (or its Affiliates’) information, including, without limitation, science,\nformulas, patterns, compilations, programs, software, devices, designs, drawings, methods, techniques and processes, financial information\nand data, business plans, business strategies, marketing plans, customer lists, price lists, cost information, information about employees,\ndescriptions of inventions, process descriptions, descriptions of technical know-how, information and descriptions of new products and new\nproduct development, scientific and technical specifications and documentation, and pending or abandoned patent applications of a party,\nnow known or in possession of, or hereafter learned or acquired, that derives economic value, actual or potential, from not being generally\nknown to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use.\nAll Confidential Information disclosed in tangible form must be marked as “confidential” or “proprietary” or with words of similar import,\nand all Confidential Information disclosed orally must be identified as confidential at the time of disclosure and summarized in writing\nwithin thirty (30) days of disclosure. “Affiliate”, with respect to any Person, means any other Person that, directly or indirectly, is controlled\nby, controls or is under common control with that Person, including, without limitation, any officer, director, manager, general partner,\ncontrolling stockholder or managing member of any Person. “Control”, with respect to any Person, means the power, directly or indirectly,\nto direct the management and policies of that Person. “Person” shall be broadly interpreted to include, without limitation, any individual,\ncorporation, company, association, partnership, joint venture, trust, estate, governmental agency or other entity of whatsoever kind or nature.\n3. Exceptions. Confidential Information does not include information which: (i) is in the possession of the Recipient at the time of disclosure\nas shown by the Recipient’s files and records immediately prior to the time of disclosure; (ii) prior or after the time of disclosure becomes\npart of the public knowledge or literature, not as a result of any inaction or action of the Recipient; (iii) is lawfully obtained from a third\nparty without any breach of a confidentiality obligation to the Discloser; (iv) is approved for release by the Discloser in writing; or (v) is\nshown by written record to be developed independently by the Recipient.\n4. Non-use and Nondisclosure. The Recipient agrees not to use the Confidential Information for any purpose except to conduct the Strategic\nDiscussions. Recipient will not disclose any Confidential Information to any third parties except those directors, officers, employees,\nconsultants and agents who have a need to know the Confidential Information in order to carry out the Strategic Discussions. Recipient shall\nensure that all such persons are bound by non-disclosure terms in content substantially similar to this NDA. Recipient will be responsible for\nbreaches of this NDA by any such person. Recipient agrees that it will take all reasonable measures to protect the secrecy of and avoid\ndisclosure or use of Confidential Information, which measures shall include the highest degree of care the Recipient utilizes to protect its\nown Confidential Information of a similar nature, but in no event less than a reasonable degree of care. Recipient agrees to notify Discloser\nin writing of any misuse or misappropriation of such Confidential Information which may come to its attention.\n5. Mandatory Disclosure. In the event that Recipient or its respective directors, officers, employees, consultants or agents are requested or\nrequired by legal process to disclose any of Discloser’s Confidential Information, Recipient shall give prompt written notice (to the extent\nlegally permissible) so that Discloser may seek a protective order or other appropriate relief. In the event that such protective order is not\nobtained, Recipient shall disclose only that portion of the Confidential Information that its counsel advises that it is legally required to\ndisclose.\n6. Return of Materials. Any materials or documents embodying Confidential Information which have been furnished to the Recipient will be\npromptly returned, accompanied by all copies of such documentation upon the earlier of the written request thereof by Discloser or the\ntermination or expiration of this NDA. Notwithstanding the return of Confidential Information, Recipient will continue to be bound by the\nobligations of confidentiality hereunder.\n7. No License Granted. Nothing in this NDA is intended to grant Recipient any rights under any patent, copyright, trade secret or other\nintellectual property right, nor shall this NDA grant Recipient any rights in or to Discloser ’s Confidential Information except the limited\nright to review such Confidential Information solely for the purposes set forth in Section 1. All such rights shall remain exclusively owned\nby Discloser. Recipient shall not derive or attempt to derive source code, reverse engineer, disassemble or decompile any products, models,\nprototypes, software or other objects that embody the Confidential Information of the Discloser.\n8. No Representations. Recipient hereby acknowledges that the Discloser makes no representation or warranty, express or implied, as to the\naccuracy or completeness of the Confidential Information or any component thereof, and that any information being provided by the\nDiscloser pursuant to this NDA is being provided “as is”. The parties agree that any Strategic Discussions contemplated by this NDA may or\nmay not lead to business or other relationships between them and no party has any obligation to disclose any Confidential Information or\nconclude any such relationships or enter into any further agreements.\n9. Term. This NDA shall continue in effect until the first anniversary of the Effective Date.\n10. Publicity. Recipient agrees that neither Recipient nor its Affiliates or representatives shall disclose to any Person who is not authorized to\nreceive the Confidential Information either the fact that this NDA exists, that discussions or negotiations are taking place concerning\nStrategic Discussions or any of the terms, conditions or other facts with respect to any aspect of the Strategic Discussions, including the\nstatus thereof or the Persons involved, except as required as a result of any legal process after compliance by Recipient with the provisions\nof Section 5.\nNONDISCLOSURE AGREEMENT\n11. Miscellaneous.\na. This NDA shall be binding upon and for the benefit of the undersigned parties, their successors and assigns, provided that this NDA or\nthe Confidential Information of the Discloser may not be assigned by Recipient without the prior written consent of the Discloser.\nFailure to enforce any provision of this NDA shall not constitute a waiver of any term hereof. A waiver given on any one occasion is\neffective only in that instance and will not be construed as a waiver of any right on any other occasion.\nb. If any provision of this NDA shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining\nprovisions shall remain in full force and effect.\nc. This NDA sets forth the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or\ncontemporaneous agreements, proposals, understandings and representations, written or oral, between the parties with respect to the\nsubject matter hereof. All modifications of, waivers of and amendments to this NDA or any part hereof, must be in writing and signed\non behalf of each party. This NDA may be executed in counterparts, including facsimile, PDF or other electronic copies thereof, and\neach such counterpart shall be an original and altogether shall constitute but one and the same document.\n12. Governing Law and Jurisdiction. This NDA shall be governed by and construed and enforced in accordance with the internal law of the\nState of California, without regard to any choice-of-law provisions, and shall be binding upon the parties hereto in the United States and\nworldwide. The federal and state courts located in the State of California shall have exclusive jurisdiction to adjudicate any dispute arising\nout of this NDA.\n13. Injunctive Relief. Recipient agrees and acknowledges that any violation or threatened violation of this NDA will cause irreparable injury to\nDiscloser and that, in addition to any other remedies that may be available, in law, in equity or otherwise, Discloser shall be entitled to obtain\ninjunctive relief against the threatened breach of this NDA or the continuation of any such breach, in any court of competent jurisdiction\n(notwithstanding the provisions of Section 12), without the necessity of proving actual damages or posting a bond.\nACCEPTED AND AGREED:\nW-NET, INC.\nDIGIPATH, INC.\nBy: /s/ David Weiner\nBy: /s/ Todd Denkin\n(Signature)\n(Signature)\nName: David Weiner\nName: Todd Denkin\nTitle: President\nTitle: CEO	EX-10.3 4 ex10-3.htm NONDISCLOSURE AGREEMENT THIS NONDISCLOSURE AGREEMENT (this “NDA”) is made as of December oth 2014 (the “Effective Date”) by and between DigiPath, Inc., located at 6450 Cameron Street, Suite 113, Las Vegas, Nevada 89118 (“Discloser”), and W-Net, Inc. (“Recipient”). 10. Scope of NDA. This NDA governs all disclosures of Confidential Information by Discloser in the course of exploring one or more strategic\nbusiness transactions or relationships with Recipient (“Strategic Discussions™).\nDefinitions. “Confidential Information” means any of Discloser’s (or its Affiliates’) information, including, without limitation, science,\nformulas, patterns, compilations, programs, software, devices, designs, drawings, methods, techniques and processes, financial information\nand data, business plans, business strategies, marketing plans, customer lists, price lists, cost information, information about employees,\ndescriptions of inventions, process descriptions, descriptions of technical know-how, information and descriptions of new products and new\nproduct development, scientific and technical specifications and documentation, and pending or abandoned patent applications of a party,\nnow known or in possession of, or hereafter learned or acquired, that derives economic value, actual or potential, from not being generally\nknown to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use.\nAll Confidential Information disclosed in tangible form must be marked as “confidential” or “proprietary” or with words of similar import,\nand all Confidential Information disclosed orally must be identified as confidential at the time of disclosure and summarized in writing\nwithin thirty (30) days of disclosure. “Affiliate”, with respect to any Person, means any other Person that, directly or indirectly, is controlled\nby, controls or is under common control with that Person, including, without limitation, any officer, director, manager, general partner,\ncontrolling stockholder or managing member of any Person. “Control”, with respect to any Person, means the power, directly or indirectly,\nto direct the management and policies of that Person. “Person” shall be broadly interpreted to include, without limitation, any individual,\ncorporation, company, association, partnership, joint venture, trust, estate, governmental agency or other entity of whatsoever kind or nature.\nExceptions. Confidential Information does not include information which: (i) is in the possession of the Recipient at the time of disclosure\nas shown by the Recipient’s files and records immediately prior to the time of disclosure; (ii) prior or after the time of disclosure becomes\npart of the public knowledge or literature, not as a result of any inaction or action of the Recipient; (iii) is lawfully obtained from a third\nparty without any breach of a confidentiality obligation to the Discloser; (iv) is approved for release by the Discloser in writing; or (v) is\nshown by written record to be developed independently by the Recipient.\nNon-use and Nondisclosure. The Recipient agrees not to use the Confidential Information for any purpose except to conduct the Strategic\nDiscussions. Recipient will not disclose any Confidential Information to any third parties except those directors, officers, employees,\nconsultants and agents who have a need to know the Confidential Information in order to carry out the Strategic Discussions. Recipient shall\nensure that all such persons are bound by non-disclosure terms in content substantially similar to this NDA. Recipient will be responsible for\nbreaches of this NDA by any such person. Recipient agrees that it will take all reasonable measures to protect the secrecy of and avoid\ndisclosure or use of Confidential Information, which measures shall include the highest degree of care the Recipient utilizes to protect its\nown Confidential Information of a similar nature, but in no event less than a reasonable degree of care. Recipient agrees to notify Discloser\nin writing of any misuse or misappropriation of such Confidential Information which may come to its attention.\nMandatory Disclosure. In the event that Recipient or its respective directors, officers, employees, consultants or agents are requested or\nrequired by legal process to disclose any of Discloser’s Confidential Information, Recipient shall give prompt written notice (to the extent\nlegally permissible) so that Discloser may seek a protective order or other appropriate relief. In the event that such protective order is not\nobtained, Recipient shall disclose only that portion of the Confidential Information that its counsel advises that it is legally required to\ndisclose.\nReturn of Materials. Any materials or documents embodying Confidential Information which have been furnished to the Recipient will be\npromptly returned, accompanied by all copies of such documentation upon the earlier of the written request thereof by Discloser or the\ntermination or expiration of this NDA. Notwithstanding the return of Confidential Information, Recipient will continue to be bound by the\nobligations of confidentiality hereunder.\nNo License Granted. Nothing in this NDA is intended to grant Recipient any rights under any patent, copyright, trade secret or other\nintellectual property right, nor shall this NDA grant Recipient any rights in or to Discloser’s Confidential Information except the limited\nright to review such Confidential Information solely for the purposes set forth in Section 1. All such rights shall remain exclusively owned\nby Discloser. Recipient shall not derive or attempt to derive source code, reverse engineer, disassemble or decompile any products, models,\nprototypes, software or other objects that embody the Confidential Information of the Discloser.\nNo Representations. Recipient hereby acknowledges that the Discloser makes no representation or warranty, express or implied, as to the\naccuracy or completeness of the Confidential Information or any component thereof, and that any information being provided by the\nDiscloser pursuant to this NDA is being provided “as is”. The parties agree that any Strategic Discussions contemplated by this NDA may or\nmay not lead to business or other relationships between them and no party has any obligation to disclose any Confidential Information or\nconclude any such relationships or enter into any further agreements.\nTerm. This NDA shall continue in effect until the first anniversary of the Effective Date.\nPublicity. Recipient agrees that neither Recipient nor its Affiliates or representatives shall disclose to any Person who is not authorized to\nreceive the Confidential Information either the fact that this NDA exists, that discussions or negotiations are taking place concerning\nStrategic Discussions or any of the terms, conditions or other facts with respect to any aspect of the Strategic Discussions, including the\nstatus thereof or the Persons involved, except as required as a result of any legal process after compliance by Recipient with the provisions\nof Section 5.\nNONDISCLOSURE AGREEMENT\n11. Miscellaneous.\na. This NDA shall be binding upon and for the benefit of the undersigned parties, their successors and assigns, provided that this NDA or\nthe Confidential Information of the Discloser may not be assigned by Recipient without the prior written consent of the Discloser.\nFailure to enforce any provision of this NDA shall not constitute a waiver of any term hereof. A waiver given on any one occasion is\neffective only in that instance and will not be construed as a waiver of any right on any other occasion.\nb. If any provision of this NDA shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining\nprovisions shall remain in full force and effect.\nc. This NDA sets forth the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or\ncontemporaneous agreements, proposals, understandings and representations, written or oral, between the parties with respect to the\nsubject matter hereof. All modifications of, waivers of and amendments to this NDA or any part hereof, must be in writing and signed\non behalf of each party. This NDA may be executed in counterparts, including facsimile, PDF or other electronic copies thereof, and\neach such counterpart shall be an original and altogether shall constitute but one and the same document.\n12. Governing I.aw and Jurisdiction. This NDA shall be governed by and construed and enforced in accordance with the internal law of the\nState of California, without regard to any choice-of-law provisions, and shall be binding upon the parties hereto in the United States and\nworldwide. The federal and state courts located in the State of California shall have exclusive jurisdiction to adjudicate any dispute arising\nout of this NDA.\n13. Injunctive Relief. Recipient agrees and acknowledges that any violation or threatened violation of this NDA will cause irreparable injury to\nDiscloser and that, in addition to any other remedies that may be available, in law, in equity or otherwise, Discloser shall be entitled to obtain\ninjunctive relief against the threatened breach of this NDA or the continuation of any such breach, in any court of competent jurisdiction\n(notwithstanding the provisions of Section 12), without the necessity of proving actual damages or posting a bond.\nACCEPTED AND AGREED:\nW-NET, INC. DIGIPATH, INC.\nBy: /s/David Weiner By: /s/ Todd Denkin\n(Signature) (Signature)\nName: David Weiner Name: Todd Denkin\nTitle: President Title: CEO	EX-10.3 4 x10-3.htm\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (this "NDA") is made as of December th 2014 (the "Effective Date") by and between DigiPath,\nInc., located at 6450 Cameron Street, Suite 113, Las Vegas, Nevada 89118 ("Discloser"), and W-Net, Inc. ("Recipient").\n1.\nScope of NDA. This NDA governs all disclosures of Confidential Information by Discloser in the course of exploring one or more strategic\nbusiness transactions or relationships with Recipient ("Strategic Discussions").\n2. Definitions. "Confidential Information" means any of Discloser's (or its Affiliates') information, including, without limitation, science,\nformulas, patterns, compilations, programs, software, devices, designs, drawings, methods, techniques and processes, financial information\nand data, business plans, business strategies, marketing plans, customer lists, price lists, cost information, information about employees,\ndescriptions of inventions, process descriptions, descriptions of technical know-how, information and descriptions of new products and new\nproduct development, scientific and technical specifications and documentation, and pending or abandoned patent applications of a party,\nnow known or in possession of, or hereafter learned or acquired, that derives economic value, actual or potential, from not being generally\nknown\nto,\nand\nnot\nbeing\nreadily\nascertainable\nby\nproper\nmeans\nby\nother\npersons\nwho\ncan\nobtain\neconomic\nvalue\nfrom\nits\ndisclosure\nor\nuse.\nAll Confidential Information disclosed in tangible form must be marked as "confidential" or "proprietary" or with words of similar import,\nand all Confidential Information disclosed orally must be identified as confidential at the time of disclosure and summarized in writing\nwithin\nthirty (30) days of disclosure. "Affiliate", with respect to any Person, means any other Person that, directly or indirectly, is controlled\nby, controls or is under common control with that Person, including, without limitation, any officer, director, manager, general partner,\ncontrolling stockholder or managing member of any Person. "Control", with respect to any Person, means the power, directly or indirectly,\nto\ndirect the management and policies of that Person. "Person" shall be broadly interpreted to include, without limitation, any individual,\ncorporation, company, association, partnership, joint venture, trust, estate, governmental agency or other entity of whatsoever kind or nature.\n3.\nExceptions.\nConfidential\nInformation\ndoes\nnot\ninclude\ninformation\nwhich:\n(i)\nis\nin\nthe\npossession\nof\nthe\nRecipient\nat\nthe\ntime\nof\ndisclosure\nas shown by the Recipient's files and records immediately prior to the time of disclosure; (ii) prior or after the time of disclosure becomes\npart of the public knowledge or literature, not as a result of any inaction or action of the Recipient; (iii) is lawfully obtained from a third\nparty without any breach of a confidentiality obligation to the Discloser; (iv) is approved for release by the Discloser in writing; or (v) is\nshown by written record to be developed independently by the Recipient.\n4. Non-use and Nondisclosure. The Recipient agrees not to use the Confidential Information for any purpose except to conduct the Strategic\nDiscussions. Recipient will not disclose any Confidential Information to any third parties except those directors, officers, employees,\nconsultants and agents who have a need to know the Confidential Information in order to carry out the Strategic Discussions. Recipient shall\nensure that all such persons are bound by non-disclosure terms in content substantially similar to this NDA. Recipient will be responsible for\nbreaches of this NDA by any such person. Recipient agrees that it will take all reasonable measures to protect the secrecy of and avoid\ndisclosure or use of Confidential Information, which measures shall include the highest degree of care the Recipient utilizes to protect its\nown Confidential Information of a similar nature, but in no event less than a reasonable degree of care. Recipient agrees to notify Discloser\nin writing of any misuse or misappropriation of such Confidential Information which may come to its attention.\n5.\nMandatory. Disclosure. In the event that Recipient or its respective directors, officers, employees, consultants or agents are requested or\nrequired by legal process to disclose any of Discloser's Confidential Information, Recipient shall give prompt written notice (to the extent\nlegally permissible) so that Discloser may seek a protective order or other appropriate relief. In the event that such protective order is not\nobtained, Recipient shall disclose only that portion of the Confidential Information that its counsel advises that it is legally required to\ndisclose.\n6.\nReturn of Materials. Any materials or documents embodying Confidential Information which have been furnished to the Recipient will be\npromptly returned, accompanied by all copies of such documentation upon the earlier of the written request thereof by Discloser or the\ntermination or expiration of this NDA. Notwithstanding the return of Confidential Information, Recipient will continue to be bound by the\nobligations of confidentiality hereunder.\n7.\nNo License Granted. Nothing in this NDA is intended to grant Recipient any rights under any patent, copyright, trade secret or other\nintellectual property right, nor shall this NDA grant Recipient any rights in or to Discloser's Confidential Information except the limited\nright to review such Confidential Information solely for the purposes set forth in Section 1. All such rights shall remain exclusively owned\nby Discloser. Recipient shall not derive or attempt to derive source code, reverse engineer, disassemble or decompile any products, models,\nprototypes, software or other objects that embody the Confidential Information of the Discloser.\n8.\nNo Representations. Recipient hereby acknowledges that the Discloser makes no representation or warranty, express or implied, as to the\naccuracy or completeness of the Confidential Information or any component thereof, and that any information being provided by the\nDiscloser pursuant to this NDA is being provided "as is". The parties agree that any Strategic Discussions contemplated by this NDA may or\nmay not lead to business or other relationships between them and no party has any obligation to disclose any Confidential Information or\nconclude any such relationships or enter into any further agreements.\n9.\nTerm. This NDA shall continue in effect until the first anniversary of the Effective Date.\n10. Publicity.. Recipient agrees that neither Recipient nor its Affiliates or representatives shall disclose to any Person who is not authorized to\nreceive the Confidential Information either the fact that this NDA exists, that discussions or negotiations are taking place concerning\nStrategic Discussions or any of the terms, conditions or other facts with respect to any aspect of the Strategic Discussions, including\nthe\nstatus thereof or the Persons involved, except as required as a result of any legal process after compliance by Recipient with the provisions\nof Section 5.\nNONDISCLOSURE AGREEMENT\n11. Miscellaneous.\na. This NDA shall be binding upon and for the benefit of the undersigned parties, their successors and assigns, provided that this NDA or\nthe Confidential Information of the Discloser may not be assigned by Recipient without the prior written consent of the Discloser.\nFailure to enforce any provision of this NDA shall not constitute a waiver of any term hereof. A waiver given on any one occasion is\neffective only in that instance and will not be construed as a waiver of any right on any other occasion.\nb. If any provision of this NDA shal be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining\nprovisions shall remain in full force and effect.\nC.\nThis NDA sets forth the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or\ncontemporaneous agreements, proposals, understandings and representations, written or oral, between the parties with respect to the\nsubject matter hereof. All modifications of, waivers of and amendments to this NDA or any part hereof, must be in writing and signed\non behalf of each party. This NDA may be executed in counterparts, including facsimile, PDF or other electronic copies thereof, and\neach such counterpart shall be an original and altogether shall constitute but one and the same document.\n12. Governing Law and Jurisdiction. This NDA shall be governed by and construed and enforced in accordance with the internal law of the\nState of California, without regard to any choice-of-law provisions, and shall be binding upon the parties hereto in the United States and\nworldwide. The federal and state courts located in the State of California shall have exclusive jurisdiction to adjudicate any dispute arising\nout of this NDA.\n13.\nInjunctive Relief. Recipient agrees and acknowledges that any violation or threatened violation of this NDA will cause irreparable injury to\nDiscloser and that, in addition to any other remedies that may be available, in law, in equity or otherwise, Discloser shall be entitled to obtain\ninjunctive relief against the threatened breach of this NDA or the continuation of any such breach, in any court of competent jurisdiction\n(notwithstanding the provisions of Section 12), without the necessity of proving actual damages or posting a bond.\nACCEPTED AND AGREED:\nW-NET, INC.\nDIGIPATH, INC.\nBy: /s/ David Weiner\nBy:\n/s/ Todd Denkin\n(Signature)\n(Signature)\nName: David Weiner\nName: Todd Denkin\nTitle: President\nTitle: CEO	EX-10 .3 4 ex10-3 .htm\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (this “NDA”) is made as of December 9th, 2014 (the “Effective Date”) by and between DigiPath,\nInc., located at 6450 Cameron Street, Suite 113, Las Vegas, Nevada 89118 (“Discloser”), and W-Net, Inc. (“Recipient”).\n1. Scope of NDA. This NDA governs all disclosures of Confidential Information by Discloser in the course of exploring one or more strategic\nbusiness transactions or relationships with Recipient (“Strategic Discussions”).\n2. Definitions. “Confidential Information” means any of Discloser ’s (or its Affiliates’) information, including, without limitation, science,\nformulas, patterns, compilations, programs, software, devices, designs, drawings, methods, techniques and processes, financial information\nand data, business plans, business strategies, marketing plans, customer lists, price lists, cost information, information about employees,\ndescriptions of inventions, process descriptions, descriptions of technical know-how, information and descriptions of new products and new\nproduct development, scientific and technical specifications and documentation, and pending or abandoned patent applications of a party,\nnow known or in possession of, or hereafter learned or acquired, that derives economic value, actual or potential, from not being generally\nknown to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use.\nAll Confidential Information disclosed in tangible form must be marked as “confidential” or “proprietary” or with words of similar import,\nand all Confidential Information disclosed orally must be identified as confidential at the time of disclosure and summarized in writing\nwithin thirty (30) days of disclosure. “Affiliate”, with respect to any Person, means any other Person that, directly or indirectly, is controlled\nby, controls or is under common control with that Person, including, without limitation, any officer, director, manager, general partner,\ncontrolling stockholder or managing member of any Person. “Control”, with respect to any Person, means the power, directly or indirectly,\nto direct the management and policies of that Person. “Person” shall be broadly interpreted to include, without limitation, any individual,\ncorporation, company, association, partnership, joint venture, trust, estate, governmental agency or other entity of whatsoever kind or nature.\n3. Exceptions. Confidential Information does not include information which: (i) is in the possession of the Recipient at the time of disclosure\nas shown by the Recipient’s files and records immediately prior to the time of disclosure; (ii) prior or after the time of disclosure becomes\npart of the public knowledge or literature, not as a result of any inaction or action of the Recipient; (iii) is lawfully obtained from a third\nparty without any breach of a confidentiality obligation to the Discloser; (iv) is approved for release by the Discloser in writing; or (v) is\nshown by written record to be developed independently by the Recipient.\n4. Non-use and Nondisclosure. The Recipient agrees not to use the Confidential Information for any purpose except to conduct the Strategic\nDiscussions. Recipient will not disclose any Confidential Information to any third parties except those directors, officers, employees,\nconsultants and agents who have a need to know the Confidential Information in order to carry out the Strategic Discussions. Recipient shall\nensure that all such persons are bound by non-disclosure terms in content substantially similar to this NDA. Recipient will be responsible for\nbreaches of this NDA by any such person. Recipient agrees that it will take all reasonable measures to protect the secrecy of and avoid\ndisclosure or use of Confidential Information, which measures shall include the highest degree of care the Recipient utilizes to protect its\nown Confidential Information of a similar nature, but in no event less than a reasonable degree of care. Recipient agrees to notify Discloser\nin writing of any misuse or misappropriation of such Confidential Information which may come to its attention.\n5. Mandatory Disclosure. In the event that Recipient or its respective directors, officers, employees, consultants or agents are requested or\nrequired by legal process to disclose any of Discloser’s Confidential Information, Recipient shall give prompt written notice (to the extent\nlegally permissible) so that Discloser may seek a protective order or other appropriate relief. In the event that such protective order is not\nobtained, Recipient shall disclose only that portion of the Confidential Information that its counsel advises that it is legally required to\ndisclose.\n6. Return of Materials. Any materials or documents embodying Confidential Information which have been furnished to the Recipient will be\npromptly returned, accompanied by all copies of such documentation upon the earlier of the written request thereof by Discloser or the\ntermination or expiration of this NDA. Notwithstanding the return of Confidential Information, Recipient will continue to be bound by the\nobligations of confidentiality hereunder.\n7. No License Granted. Nothing in this NDA is intended to grant Recipient any rights under any patent, copyright, trade secret or other\nintellectual property right, nor shall this NDA grant Recipient any rights in or to Discloser ’s Confidential Information except the limited\nright to review such Confidential Information solely for the purposes set forth in Section 1. All such rights shall remain exclusively owned\nby Discloser. Recipient shall not derive or attempt to derive source code, reverse engineer, disassemble or decompile any products, models,\nprototypes, software or other objects that embody the Confidential Information of the Discloser.\n8. No Representations. Recipient hereby acknowledges that the Discloser makes no representation or warranty, express or implied, as to the\naccuracy or completeness of the Confidential Information or any component thereof, and that any information being provided by the\nDiscloser pursuant to this NDA is being provided “as is”. The parties agree that any Strategic Discussions contemplated by this NDA may or\nmay not lead to business or other relationships between them and no party has any obligation to disclose any Confidential Information or\nconclude any such relationships or enter into any further agreements.\n9. Term. This NDA shall continue in effect until the first anniversary of the Effective Date.\n10. Publicity. Recipient agrees that neither Recipient nor its Affiliates or representatives shall disclose to any Person who is not authorized to\nreceive the Confidential Information either the fact that this NDA exists, that discussions or negotiations are taking place concerning\nStrategic Discussions or any of the terms, conditions or other facts with respect to any aspect of the Strategic Discussions, including the\nstatus thereof or the Persons involved, except as required as a result of any legal process after compliance by Recipient with the provisions\nof Section 5.\nNONDISCLOSURE AGREEMENT\n11. Miscellaneous.\na. This NDA shall be binding upon and for the benefit of the undersigned parties, their successors and assigns, provided that this NDA or\nthe Confidential Information of the Discloser may not be assigned by Recipient without the prior written consent of the Discloser.\nFailure to enforce any provision of this NDA shall not constitute a waiver of any term hereof. A waiver given on any one occasion is\neffective only in that instance and will not be construed as a waiver of any right on any other occasion.\nb. If any provision of this NDA shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining\nprovisions shall remain in full force and effect.\nc. This NDA sets forth the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or\ncontemporaneous agreements, proposals, understandings and representations, written or oral, between the parties with respect to the\nsubject matter hereof. All modifications of, waivers of and amendments to this NDA or any part hereof, must be in writing and signed\non behalf of each party. This NDA may be executed in counterparts, including facsimile, PDF or other electronic copies thereof, and\neach such counterpart shall be an original and altogether shall constitute but one and the same document.\n12. Governing Law and Jurisdiction. This NDA shall be governed by and construed and enforced in accordance with the internal law of the\nState of California, without regard to any choice-of-law provisions, and shall be binding upon the parties hereto in the United States and\nworldwide. The federal and state courts located in the State of California shall have exclusive jurisdiction to adjudicate any dispute arising\nout of this NDA.\n13. Injunctive Relief. Recipient agrees and acknowledges that any violation or threatened violation of this NDA will cause irreparable injury to\nDiscloser and that, in addition to any other remedies that may be available, in law, in equity or otherwise, Discloser shall be entitled to obtain\ninjunctive relief against the threatened breach of this NDA or the continuation of any such breach, in any court of competent jurisdiction\n(notwithstanding the provisions of Section 12), without the necessity of proving actual damages or posting a bond.\nACCEPTED AND AGREED:\nW-NET, INC.\nDIGIPATH, INC.\nBy: /s/ David Weiner\nBy: /s/ Todd Denkin\n(Signature)\n(Signature)\nName: David Weiner\nName: Todd Denkin\nTitle: President\nTitle: CEO
+247166e0245431dcf97ee884f1f07e35.pdf	effective_date jurisdiction party	CONFIDENTIALITY AGREEMENT\nCONFIDENTIALITY AGREEMENT (this “Agreement”), dated as of April 20, 2018, by and between Elaine P. Wynn (the\n“Requesting Stockholder”) and Wynn Resorts, Limited, a Nevada corporation (the “Company”).\nWHEREAS, the Requesting Stockholder hereby represents that she is the beneficial owner of 9,539,077 shares of\ncommon stock of the Company, $0.01 par value per share;\nWHEREAS, by letter to the Company dated April 20, 2018, the Requesting Stockholder has made a demand (the\n“Demand”) to inspect and make and/or receive copies or abstracts from certain records of the Company (the “Records”)\npursuant to Nevada Revised Statutes 78.105; and\nWHEREAS, subject to the execution of this Agreement and payment by the Requesting Stockholder for the production of the\nRecords, the Company will make the Records available for inspection by the Requesting Stockholder in response to the Demand and\nany future demands by the Requesting Stockholder, subject to the provisions contained in this Agreement.\nNOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,\nthe parties do hereby agree as follows:\n1. Confidentiality and Purpose. The Company shall make the Records available for inspection by the Requesting\nStockholder in response to the Demand and any future demands by the Requesting Stockholder. The Requesting Stockholder shall\nhold the Records (as defined in the Demand) in strict confidence and shall not, and shall direct her Representatives (as defined below)\nnot to, publish, communicate or otherwise disclose the Records to anyone, either directly or indirectly, other than as permitted by\nSection 3 of this Agreement. The Requesting Stockholder expressly agrees and represents, consistent with her Demand, that the\nRecords shall be utilized solely for the purpose set forth in the Demand (the “Permitted Purpose”).\nThe confidentiality obligations set forth in this Agreement shall not apply to any of the Records that (a) were already\nproperly in the Requesting Stockholder’s or her Representatives’ possession as of the date hereof, provided that such Records were\nnot subject to any legal, contractual or fiduciary obligation of confidentiality owed to the Company or any subsidiary thereof, (b)\nproperly came into the Requesting Stockholder’s or her Representatives’ possession after the date hereof, provided that such\nInformation was not subject to any legal, contractual or fiduciary obligation of confidentiality owed to the Company or any\nsubsidiary thereof, or (c) are, on the date hereof, or subsequently become, publicly available, other than as a result of a breach of this\nAgreement by the Requesting Stockholder or her Representatives.\n2. Confidentiality Designation. The Company hereby designates the Records as confidential on the grounds that the\nCompany in good faith believes that the Records constitute or reveals confidential information that requires the protection provided\nin this Agreement.\n-2 2-\n3. Permitted Disclosure. The Requesting Stockholder shall be permitted to disclose the Records only on a need-to-know\nbasis for the Permitted Purpose (a) to the employees, officers, attorneys, consultants, agents or other representatives of the Requesting\nStockholder or any of her affiliates or associates (collectively, “Representatives”) or (b) as required by law, regulation or legal\nprocess, including as required by the Securities and Exchange Commission or any applicable stock exchange; provided, however, that\nthe Requesting Stockholder shall, to the extent legally permissible, (i) provide reasonable notice to the Company of any such\nrequirement, so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with this\nAgreement; (ii) furnish only such Records as are legally required to be disclosed and (iii) exercise reasonable efforts to obtain\nassurance that confidential treatment will be accorded to any Records that are required to be disclosed. The Requesting Stockholder\nshall be responsible for any breach of this Agreement by her Representatives and agrees to advise her Representatives against\nprohibited or unauthorized disclosure or use of the Records (including litigation).\n4. Return or Destruction of Information. The parties agree that, within ten business days following the conclusion of the\nCompany’s 2018 annual meeting of stockholders (including any postponements and/or adjournments thereof), the Requesting\nStockholder shall, and shall direct her Representatives to, destroy the Records.\n5. Enforcement. The parties agree that money damages would not be a sufficient remedy for any breach of this Agreement\nby any of the parties hereto and that the other party shall be entitled to equitable relief, including injunctive relief and specific\nperformance, in the event of any breach or threatened breach of this Agreement, without proof of actual damages or any requirement\nto post a bond, in addition to all other remedies available at law or in equity. If any action, suit or proceeding is initiated by a party to\nenforce the provisions hereof, the prevailing party in such action, suit or proceeding shall be entitled to reimbursement of all costs\nand expenses, including attorneys’ fees, incurred by such prevailing party in connection therewith.\n6. Governing Law; Venue and Jurisdiction. This Agreement shall be governed by the laws of the State of Nevada without\nregard to principles of conflict of laws thereof. The parties agree that the Courts of the State of Nevada shall have exclusive\njurisdiction for purposes of any action, suit or proceeding arising hereunder, and the parties hereby consent to such venue and submit\nto such exclusive jurisdiction. Each of the Requesting Stockholder and the Company agrees that it will not bring any action, suit or\nproceeding relating to this Agreement in any court other than the Courts of the State of Nevada.\n7. General Provisions. Captions and section headings used herein are for convenience of reference only, are not part of this\nAgreement and shall not affect the construction of, or to be taken into consideration in, interpreting, this Agreement. This Agreement\nmay be amended, changed, modified, altered or terminated only by written instruments signed by the parties hereto, and no waiver of\ncompliance with any provision or condition of this Agreement shall be effective unless evidenced by a written instrument executed\nby the party against whom such waiver is to be effective. In the event any provision of this Agreement is held invalid or\nunenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision\nhereof. This Agreement may be executed in multiple counterparts, each of which will be deemed an original for all purposes and all\nof which shall constitute a single instrument. Delivery of an executed signature page of this Agreement by email, facsimile or other\ncustomary means of electronic transmission (e.g ., “pdf’) shall be effective as delivery of a manually executed counterpart hereof.\n[Remainder of page intentionally left blank]\n-23-\nIN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed on the date first written above.\nWYNN RESORTS, LIMITED\nBy:\nName:\nTitle:\nELAINE P. WYNN\nSigned:\n-24-	CONFIDENTIALITY AG REEMENT\nCONFIDENTIALITY AGREEMENT (this ”Agreement”), dated as of April 20, 2018, by and between Elaine P. Wynn (the\n”Requesting Stockholder") and Wynn Resorts, Limited, a Nevada corporation (the ”Company” ).\nWHEREAS, the Requesting Stockholder hereby represents that she is the beneficial owner of 9,539,077 shares of\ncommon stock of the Company, $0.01 par value per share;\nWHEREAS, by letter to the Company dated April 20, 2018, the Requesting Stockholder has made a demand (the\n“Demand”) to inspect and make and/or receive copies or abstracts from certain records of the Company (the “Records”)\npursuant to Nevada Revised Statutes 78.105; and\nWHE REA S, subject to the execution of this Agreement and payment by the Requesting Stockholder for the production of the\nRecords, the Company will make the Records available for inspection by the Requesting Stockholder in response to the Demand and\nany future demands by the Requesting Stockholder, subject to the provisions contained in this Agreement.\nNOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,\nthe parties do hereby agree as follows:\n1. Confidentiality and Purpose. The Company shall make the Records available for inspection by the Requesting\nStockholder in response to the Demand and any future demands by the Requesting Stockholder. The Requesting Stockholder shall\nhold the Records (as defined in the Demand) in strict confidence and shall not, and shall direct her Representatives (as defined below)\nnot to, publish, communicate or otherwise disclose the Records to anyone, either directly or indirectly, other than as permitted by\nSection 3 of this Agreement. The Requesting Stockholder expressly agrees and represents, consistent with her Demand, that the\nRecords shall be utilized solely for the purpose set forth in the Demand (the ”P ermitted Purpose” ).\nThe confidentiality obligations set forth in this Agreement shall not apply to any of the Records that (a) were already\nproperly in the Requesting Stockholder“ s or her Representatives' possession as of the date hereof, provided that such Records were\nnot subject to any legal, contractual or fiduciary obligation of confidentiality owed to the Company or any subsidiary thereof, (b)\nproperly came into the Requesting Stockholder’s or her Representatives' possession after the date hereof, provided that such\nInformation was not subject to any legal, contractual or fiduciary obligation of confidentiality owed to the Company or any\nsubsidiary thereof, or (c) are, on the date hereof, or subsequently become, publicly available, other than as a result of a breach of this\nA greement by the Requesting Stockholder or her Representatives.\n2. Confidentiality Designation. The Company hereby designates the Records as confidential on the grounds that the\nCompany in good faith believes that the Records constitute or reveals confidential information that requires the protection provided\nin this A greement.\n-22-\n3. Permitted Disclosure. The Requesting Stockholder shall be permitted to disclose the Records only on a need-to-know\nbasis for the Permitted Purpose (a) to the employees, officers, attorneys, consultants, agents or other representatives of the Requesting\nStockholder or any of her affiliates or associates (collectively, ”Representatives") or (b) as required by law, regulation or legal\nprocess, including as required by the Securities and Exchange Commission or any applicable stock exchange; provided, however, that\nthe Requesting Stockholder shall, to the extent legally permissible, (i) provide reasonable notice to the Company of any such\nrequirement, so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with this\nAgreement; (ii) furnish only such Records as are legally required to be disclosed and (iii) exercise reasonable efforts to obtain\nassurance that confidential treatment will be accorded to any Records that are required to be disclosed. The Requesting Stockholder\nshall be responsible for any breach of this Agreement by her Representatives and agrees to advise her Representatives against\nprohibited or unauthorized disclosure or use of the Records (including litigation).\n4. Return or Destruction of Information. The parties agree that, within ten business days following the conclusion of the\nCompany's 2018 annual meeting of stockholders (including any postponements and/or adjoumments thereof), the Requesting\nStockholder shall, and shall direct her Representatives to, destroy the Records.\n5. Enforcement. The parties agree that money damages would not be a sufficient remedy for any breach of this Agreement\nby any of the parties hereto and that the other party shall be entitled to equitable relief, including injunctive relief and specific\nperformance, in the event of any breach or threatened breach of this Agreement, without proof of actual damages or any requirement\nto post a bond, in addition to all other remedies available at law or in equity. If any action, suit or proceeding is initiated by a party to\nenforce the provisions hereof, the prevailing party in such action, suit or proceeding shall be entitled to reimbursement of all costs\nand expenses, including attorneys’ fees, incurred by such prevailing party in connection therewith.\n6. Governing Law; Venue and urisdiction. This Agreement shall be governed by the laws of the State of Nevada without\nregard to principles of conflict of laws thereof. The parties agree that the Courts of the State of Nevada shall have exclusive\njurisdiction for purposes of any action, suit or proceeding arising hereunder, and the parties hereby consent to such venue and submit\nto such exclusive jurisdiction. Each of the Requesting Stockholder and the Company agrees that it will not bring any action, suit or\nproceeding relating to this A greement in any court other than the Courts of the State of Nevada.\n7. General Provisions. Captions and section headings used herein are for convenience of reference only, are not part of this\nAgreement and shall not affect the construction of, or to be taken into consideration in, interpreting, this Agreement. This Agreement\nmay be amended, changed, modified, altered or terminated only by written instruments signed by the parties hereto, and no waiver of\ncompliance with any provision or condition of this Agreement shall be effective unless evidenced by a written instrument executed\nby the party against whom such waiver is to be effective. In the event any provision of this Agreement is held invalid or\nunenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision\nhereof. This Agreement may be executed in multiple counterparts, each of which will be deemed an original for all purposes and all\nof which shall constitute a single instrument. Delivery of an executed signature page of this Agreement by email, facsimile or other\ncustomary means of electronic transmission (e.g., ”pdf’) shall be effective as delivery of a manually executed counterpart hereof.\n[Remainder of page intentionally left blank]\n-23-\nIN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed on the date firstwritten above.\nWYNN RESORTS, LIMITED\nBy:\nName:\nTitle:\nELAINE P. WYNN\nSigned:\n-24-	CONFIDENTIALITY AGREEMENT\nCONFIDENTIALITY AGREEMENT (this "Agreement"), dated as of April 20, 2018, by and between Elaine P. Wynn (the\n"Requesting Stockholder") and Wynn Resorts, Limited, a Nevada corporation (the "Company").\nWHEREAS, the Requesting Stockholder hereby represents that she is the beneficial owner of 9,539,077 shares of\ncommon stock of the Company, $0.01 par value per share;\nWHEREAS, by letter to the Company dated April 20, 2018, the Requesting Stockholder has made a demand (the\n"Demand") to inspect and make and/or receive copies or abstracts from certain records of the Company (the "Records")\npursuant to Nevada Revised Statutes 78.105; and\nWHEREAS, subject to the execution of this Agreement and payment by the Requesting Stockholder for the production of the\nRecords, the Company will make the Records available for inspection by the Requesting Stockholder in response to the Demand and\nany future demands by the Requesting Stockholder, subject to the provisions contained in this Agreement.\nNOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,\nthe parties do hereby agree as follows:\n1. Confidentiality and Purpose. The Company shall make the Records available for inspection by the Requesting\nStockholder in response to the Demand and any future demands by the Requesting Stockholder. The Requesting Stockholder shall\nhold the Records (as defined in the Demand) in strict confidence and shall not, and shall direct her Representatives (as defined below)\nnot to, publish, communicate or otherwise disclose the Records to anyone, either directly or indirectly, other than as permitted\nby\nSection 3 of this Agreement The Requesting Stockholder expressly agrees and represents, consistent with her Demand, that the\nRecords shall be utilized solely for the purpose set forth in the Demand (the "Permitted Purpose").\nThe confidentiality obligations set forth in this Agreement shall not apply to any of the Records that (a) were already\nproperly in the Requesting Stockholder's or her Representatives' possession as of the date hereof, provided that such Records were\nnot subject to any legal, contractual or fiduciary obligation of confidentiality owed to the Company or any subsidiary thereof, (b)\nproperly came into the Requesting Stockholder's or her Representatives' possession after the date hereof, provided that such\nInformation was not subject to any legal, contractual or fiduciary obligation of confidentiality owed to the Company or any\nsubsidiary thereof, or (c) are, on the date hereof, or subsequently become, publicly available, other than as a result of a breach of this\nAgreement by the Requesting Stockholder or her Representatives.\n2. Confidentiality Designation The Company hereby designates the Records as confidential on the grounds that the\nCompany in good faith believes that the Records constitute or reveals confidential information that requires the protection provided\nin this Agreement.\n-22-\n3. Permitted Disclosure. The Requesting Stockholder shall be permitted to disclose the Records only on a need-to-know\nbasis for the Permitted Purpose (a) to the employees, officers, attorneys, consultants, agents or other representatives of the Requesting\nStockholder or any of her affiliates or associates (collectively, "Representatives") or (b) as required by law, regulation or legal\nprocess, including as required by the Securities and Exchange Commission or any applicable stock exchange; provided, however, that\nthe Requesting Stockholder shall, to the extent legally permissible, (i) provide reasonable notice to the Company of any such\nrequirement, so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with this\ngreement; (ii) furnish only such Records as are legally required to be disclosed and (iii) exercise reasonable efforts to obtain\nassurance that confidential treatment will be accorded to any Records that are required to be disclosed. The Requesting Stockholder\nshall be responsible for any breach of this Agreement by her Representatives and agrees to advise her Representatives against\nprohibited or unauthorized disclosure or use of the Records (including litigation).\n4. Return or Destruction of Information. The parties agree that, within ten business days following the conclusion of the\nCompany's 2018 annual meeting of stockholders (including any postponements and/or adjournments thereof), the Requesting\nStockholder shall, and shall direct her Representatives to, destroy the Records.\n5. Enforcement The parties agree that money damages would not be a sufficient remedy for any breach of this Agreement\nby any of the parties hereto and that the other party shall be entitled to equitable relief, including injunctive relief and specific\nperformance in the event of any breach or threatened breach of this Agreement, without proof of actual damages or any requirement\nto post a bond, in addition to all other remedies available at law or in equity. If any action, suit or proceeding is initiated by a party to\nenforce the provisions hereof, the prevailing party in such action, suit or proceeding shall be entitled to reimbursement of all costs\nand expenses, including attorneys' fees, incurred by such prevailing party in connection therewith.\n6. Governing Law; Venue and Jurisdiction This Agreement shall be governed by the laws of the State of Nevada without\nregard to principles of conflict of laws thereof. The parties agree that the Courts of the State of Nevada shall have exclusive\njurisdiction for purposes of any action, suit or proceeding arising hereunder, and the parties hereby consent to such venue and submit\nto such exclusive jurisdiction. Each of the Requesting Stockholder and the Company agrees that it will not bring any action, suit or\nproceeding relating to this A greement in any court other than the Courts of the State of Nevada.\n7. General Provisions. Captions and section headings used herein are for convenience of reference only, are not part of this\nAgreement and shall not affect the construction of, or to be taken into consideration in, interpreting, this Agreement. This A greement\nmay be amended, changed, modified, altered or terminated only by written instruments signed by the parties hereto, and no waiver of\ncompliance with any provision or condition of this Agreement shall be effective unless evidenced by a written instrument executed\nby the party against whom such waiver is to be effective. In the event any provision of this Agreement is held invalid or\nunenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision\nhereof. This greement may be executed in multiple counterparts, each of which will be deemed an original for all purposes and all\nof which shall constitute a single instrument. Delivery of an executed signature page of this Agreement by email, facsimile or other\ncustomary means of electronic transmission (e.g., "pdf') shall be effective as delivery of a manually executed counterpart hereof.\n[Remainder of page intentionally left blank]\n-23-\nIN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed on the date first written above.\nWYNN RESORTS, LIMITED\nBy:\nName:\nTitle:\nELAINE P. WYNN\nSigned:\n-24-	CONFIDENTIALITY AGREEMENT\nCONFIDENTIALITY AGREEMENT (this “Agreement”), dated as of April 20, 2018, by and between Elaine P. Wynn (the\n“Requesting Stockholder”) and Wynn Resorts, Limited, a Nevada corporation (the “Company”).\nWHEREAS, the Requesting Stockholder hereby represents that she is the beneficial owner of 9,539,077 shares of\ncommon stock of the Company, $0.01 par value per share;\nWHEREAS, by letter to the Company dated April 20, 2018, the Requesting Stockholder has made a demand (the\n“Demand”) to inspect and make and/or receive copies or abstracts from certain records of the Company (the “Records”)\npursuant to Nevada Revised Statutes 78.105; and\nWHEREAS, subject to the execution of this Agreement and payment by the Requesting Stockholder for the production of the\nRecords, the Company will make the Records available for inspection by the Requesting Stockholder in response to the Demand and\nany future demands by the Requesting Stockholder, subject to the provisions contained in this Agreement.\nNOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,\nthe parties do hereby agree as follows:\n1. Confidentiality and Purpose. The Company shall make the Records available for inspection by the Requesting\nStockholder in response to the Demand and any future demands by the Requesting Stockholder. The Requesting Stockholder shall\nhold the Records (as defined in the Demand) in strict confidence and shall not, and shall direct her Representatives (as defined below)\nnot to, publish, communicate or otherwise disclose the Records to anyone, either directly or indirectly, other than as permitted by\nSection 3 of this Agreement. The Requesting Stockholder expressly agrees and represents, consistent with her Demand, that the\nRecords shall be utilized solely for the purpose set forth in the Demand (the “Permitted Purpose”).\nThe confidentiality obligations set forth in this Agreement shall not apply to any of the Records that (a) were already\nproperly in the Requesting Stockholder’s or her Representatives’ possession as of the date hereof, provided that such Records were\nnot subject to any legal, contractual or fiduciary obligation of confidentiality owed to the Company or any subsidiary thereof, (b)\nproperly came into the Requesting Stockholder’s or her Representatives’ possession after the date hereof, provided that such\nInformation was not subject to any legal, contractual or fiduciary obligation of confidentiality owed to the Company or any\nsubsidiary thereof, or (c) are, on the date hereof, or subsequently become, publicly available, other than as a result of a breach of this\nAgreement by the Requesting Stockholder or her Representatives.\n2. Confidentiality Designation. The Company hereby designates the Records as confidential on the grounds that the\nCompany in good faith believes that the Records constitute or reveals confidential information that requires the protection provided\nin this Agreement.\n-2 2-\n3. Permitted Disclosure. The Requesting Stockholder shall be permitted to disclose the Records only on a need-to-know\nbasis for the Permitted Purpose (a) to the employees, officers, attorneys, consultants, agents or other representatives of the Requesting\nStockholder or any of her affiliates or associates (collectively, “Representatives”) or (b) as required by law, regulation or legal\nprocess, including as required by the Securities and Exchange Commission or any applicable stock exchange; provided, however, that\nthe Requesting Stockholder shall, to the extent legally permissible, (i) provide reasonable notice to the Company of any such\nrequirement, so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with this\nAgreement; (ii) furnish only such Records as are legally required to be disclosed and (iii) exercise reasonable efforts to obtain\nassurance that confidential treatment will be accorded to any Records that are required to be disclosed. The Requesting Stockholder\nshall be responsible for any breach of this Agreement by her Representatives and agrees to advise her Representatives against\nprohibited or unauthorized disclosure or use of the Records (including litigation).\n4. Return or Destruction of Information. The parties agree that, within ten business days following the conclusion of the\nCompany’s 2018 annual meeting of stockholders (including any postponements and/or adjournments thereof), the Requesting\nStockholder shall, and shall direct her Representatives to, destroy the Records.\n5. Enforcement. The parties agree that money damages would not be a sufficient remedy for any breach of this Agreement\nby any of the parties hereto and that the other party shall be entitled to equitable relief, including injunctive relief and specific\nperformance, in the event of any breach or threatened breach of this Agreement, without proof of actual damages or any requirement\nto post a bond, in addition to all other remedies available at law or in equity. If any action, suit or proceeding is initiated by a party to\nenforce the provisions hereof, the prevailing party in such action, suit or proceeding shall be entitled to reimbursement of all costs\nand expenses, including attorneys’ fees, incurred by such prevailing party in connection therewith.\n6. Governing Law; Venue and Jurisdiction. This Agreement shall be governed by the laws of the State of Nevada without\nregard to principles of conflict of laws thereof. The parties agree that the Courts of the State of Nevada shall have exclusive\njurisdiction for purposes of any action, suit or proceeding arising hereunder, and the parties hereby consent to such venue and submit\nto such exclusive jurisdiction. Each of the Requesting Stockholder and the Company agrees that it will not bring any action, suit or\nproceeding relating to this Agreement in any court other than the Courts of the State of Nevada.\n7. General Provisions. Captions and section headings used herein are for convenience of reference only, are not part of this\nAgreement and shall not affect the construction of, or to be taken into consideration in, interpreting, this Agreement. This Agreement\nmay be amended, changed, modified, altered or terminated only by written instruments signed by the parties hereto, and no waiver of\ncompliance with any provision or condition of this Agreement shall be effective unless evidenced by a written instrument executed\nby the party against whom such waiver is to be effective. In the event any provision of this Agreement is held invalid or\nunenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision\nhereof. This Agreement may be executed in multiple counterparts, each of which will be deemed an original for all purposes and all\nof which shall constitute a single instrument. Delivery of an executed signature page of this Agreement by email, facsimile or other\ncustomary means of electronic transmission (e.g ., “pdf’) shall be effective as delivery of a manually executed counterpart hereof.\n[Remainder of page intentionally left blank]\n-23-\nIN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed on the date first written above.\nWYNN RESORTS, LIMITED\nBy:\nName:\nTitle:\nELAINE P. WYNN\nSigned:\n-24-
+262cbec0e0e10baf6ebff39ee57e457c.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 11 d210854dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nEXECUTION VERSION\nJune 23, 2015\nCONFIDENTIAL\nYou have advised the Company’s agent, Raymond James & Associates, Inc. (acting solely in its capacity as representative of the Company,\n“Raymond James”), that Providence Equity Partners L.L.C . (referred to as “you” or “your” as appropriate) is interested in exploring a possible\nnegotiated transaction with a company known to each of us under the code name “Winchester” (the “Company”) (such possible transaction, the\n“Transaction”). In that connection, you have requested certain non-public oral and written information concerning the Company from officers,\ndirectors, employees or agents of the Company and Raymond James, the Company’s financial advisor on this matter. All such information\nfurnished to you and your Representatives (as defined below) either on or after the date of this agreement, together with those portions of all\nnotes, analyses, opinions, compilations, studies, interpretations, summaries, extracts or other documents or records prepared by you or your\nRepresentatives which contain or otherwise reflect from such information, are collectively referred to herein as the “Evaluation Material.”\nYou hereby agree as follows:\n1. You and your directors and officers (or their corporate equivalents), employees, affiliates (such term as used in this agreement in relation to\nyou shall only mean those of your affiliates that have received Evaluation Material), agents, financial and other advisors (including, for the\navoidance of doubt, counsel and accountants of the same), counsel, accountants, Permitted Financing Sources (as defined below)\n(including, for the avoidance of doubt, any representatives of the same) (collectively, the “Representatives”) shall use the Evaluation\nMaterial solely for the purpose of evaluating, negotiating and implementing the Transaction and shall keep the Evaluation Material\nconfidential, except that you and your Representatives may disclose the Evaluation Material or portions thereof to those of your\nRepresentatives who need to know such information for the purpose of evaluating, negotiating and implementing the Transaction. You shall\ninform your Representatives of the existence and terms of this agreement and direct them to comply with all obligations in this agreement\nthat apply to your Representatives or with which this agreement states you shall direct your representatives to comply. You shall be\nresponsible for any breach of the provisions of this agreement expressly applicable to your Representatives by your Representatives;\nprovided, that you shall not be responsible for a breach by any Representative that has executed a separate confidentiality agreement with\nthe Company. If you or any of your Representatives is required (by deposition, interrogatory, request for documents, subpoena, civil\ninvestigative demand or similar process) to disclose any of the Evaluation Material or any Transaction Information, you or your\nRepresentative, as the case may be, shall (other than in the case of a routine inquiry by a regulatory authority, self-regulatory authority,\nstock exchange or bank examiner not directly targeting the Company or the Transaction) provide the Company with written notice of such\nrequirement as soon as practicable after learning of it and shall furnish only that portion of the Evaluation Material or Transaction\nInformation which you or your Representatives, as the case may be, is advised by counsel is legally required. You shall cooperate (at the\nexpense of the Company) in efforts to obtain a protective order and otherwise exercise commercially reasonable efforts to assure\nconfidential treatment will be accorded such Evaluation Material. As used herein, “Permitted Financing Sources” means any of your\npotential sources of debt or equity financing as shall have been approved in\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 2\nwriting by the Company prior to any Evaluation Material or Transaction Information having been provided to such source or any of its\nRepresentatives. For the avoidance of doubt, your Representatives shall not include any debt or equity financing sources other than\nPermitted Financing Sources.\n2. If the Company or Raymond James so requests in writing, you shall as promptly as practicable return to the Company or destroy (at your\nsole election) all copies of the Evaluation Material furnished to you by or on behalf of the Company in your possession or, in the case of the\npossession of your Representatives, direct your Representatives to do the same. All other written Evaluation Material will be destroyed by\nyou and all oral Evaluation Material will be held subject to the terms of this agreement. You agree to confirm in writing, if so requested by\nthe Company, your compliance with the provisions of this paragraph once you have been requested to return or destroy all Evaluation\nMaterial. Notwithstanding the foregoing, (a) entities may retain copies of the Evaluation Material in accordance with bona fide policies and\nprocedures implemented to comply with applicable law, regulator, professional standards or business practice and (b) compliance with this\nSection 2 will not limit the ongoing confidentiality and other applicable obligations under this agreement.\n3. The term “Evaluation Material” does not include any information which (i) at the time of disclosure or thereafter is generally available to\nthe participants in the industry in which the Company primarily participates or to the public (in each case, other than as a result of a\ndisclosure directly by you or any of the Representatives), (ii) was available to you or your Representatives without a duty of confidentiality\ndirectly or indirectly to the Company (A) prior to disclosure by the Company or (B) from a source that, to your knowledge, is not\nprohibited from disclosing such information to you by a contractual, legal or fiduciary obligation directly or indirectly to the Company or\n(iv) was or is independently developed by you or your Representatives without use of the Evaluation Material. The Evaluation Material\nshall remain the property of the Company to the extent it is the property of the Company prior to its disclosure hereunder and its disclosure\nshall not confer on you or any of your Representatives any rights (including intellectual property rights) over the Evaluation Material\nwhatsoever beyond those contained in this agreement.\n4. Without the prior written consent of the Board of Directors of the Company, you shall not, and shall direct your Representatives not to, and\nto the extent the Company makes a disclosure referencing you or your affiliates, it and its Representatives shall not, disclose to any person\nor entity (a) that any investigations, discussions or negotiations are taking place concerning a possible transaction involving the Company\nand you, (b) that you have requested or received any Evaluation Material or (c) or any of the terms, conditions or other facts with respect to\nthe Transaction, including the status thereof (collectively, the “Transaction Information”). You represent that in considering the Transaction\nand reviewing the Evaluation Material, you and your Representatives are acting solely on your own behalf and not as part of a group with\nany third parties. You will not, directly or indirectly, except with the prior written consent of the Company, enter into any oral or written\nagreement, arrangement or understanding with any other person, or approach or have discussions with any person that may lead to the same\nwith any person regarding the possibility of joining in a combined proposal for a Transaction or a follow-on acquisition of part of the\nCompany or its\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 3\nassets, and you represent and warrant that neither you nor any of your Representatives has entered into any such agreement, arrangement,\nunderstanding or discussions prior to the date hereof. Furthermore, you will not, directly or through others, enter into any oral or written\nagreement, arrangement or understanding (or discussions that could reasonably be expected to lead to such an agreement, arrangement or\nunderstanding) regarding the engagement of a debt or equity financing source on an exclusive basis or in such a manner that would\notherwise prohibit or impede any other person from obtaining debt financing from such financing source in connection with a transaction\nwith the Company; provided, however, that a customary non-disclosure or confidentiality agreement that does not contain an exclusivity,\n“lock-up”, “dry-up” or similar provision shall not be deemed to so limit, restrict, restrain or impair such financing source.\nNotwithstanding any other provision of this agreement, nothing shall prohibit or restrict you from entering into a customary “tree”\narrangement with a financial institution at which a deal team is working on obtaining or providing potential financing for you for purposes\nof the Transaction (and is not permitted to work on obtaining or providing potential financing for any other bidder pursuing a transaction\ninvolving the Company so long as other deal teams at such institution are permitted to work on obtaining or providing potential financing\nfor other bidders pursuing a transaction involving the Company.\n5. Until the consummation of the Transaction by you or a third party, you shall not initiate or maintain contact (except for those contacts made\nin the ordinary course of business) with any officer, director, or employee of the Company or its subsidiaries, except with the express prior\npermission of the Chief Executive Officer of the Company or Raymond James. For a period of 18 months from the date hereof, you shall\nnot, and shall not permit any of your affiliates to, directly or indirectly, solicit for employment, or hire, any person who is an employee of\nthe Company or any of its subsidiaries with whom you or any of your Representatives have had contact or have been specifically identified\nto you (other than solely on an employee census) during the period of your investigation of the Company or its subsidiaries; provided that\nnothing herein shall restrict or preclude (a) your right to make generalized searches for employees by use of advertisements in any medium\nor to engage firms to conduct such searches, and from hiring employees as a result of such search, so long as such firms do not target or\nfocus on the Company or any of its subsidiaries or (b) the solicitation for hire or hiring of any such person whose employment was\nterminated by the Company at least 90 days prior to such solicitation. It is understood that, unless otherwise agreed to or directed by the\nCompany, all requests for information, tours and meetings, all questions or discussions relating to the procedures in making a proposal and\nall communications regarding the Transaction will be directed to Raymond James. The Company and Raymond James shall be free to\nconduct the process for exploring a potential Transaction, including access to Evaluation Material, as they in their sole discretion shall\ndetermine and to discontinue or change such process (including any previously announced rules or procedure), including as relates to\naccess to Evaluation Material, at any time, for any reason and without notice to you, and none of the Company, Raymond James, or any of\ntheir respective officers, directors, employees, agents or affiliates, shall have any liability to you as a result of such process. You further\nunderstand and agree that the Company and its Representatives shall not be limited at any time or in any way from entering into\nnegotiations and discussions with another party for a possible transaction in lieu of the Transaction or from entering into a definitive\nagreement with respect thereto without prior notice to you or your Representatives.\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 4\n6. You agree that, for a period of 18 months from the date of this agreement, unless such shall have been specifically invited or approved in\nwriting by the Board of Directors of the Company, neither you nor any of your affiliates or Representatives will in any manner, directly or\nindirectly, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any\nother person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) an acquisition of any securities\n(or of beneficial ownership thereof) or a material amount of the assets of the Company; (ii) any tender or exchange offer, merger or other\nbusiness combination involving the Company or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or\nother extraordinary transaction with respect to the Company; or (iv) any “solicitation” of “proxies” (as such terms are used in the rules of\nthe Securities and Exchange Commission) or consents to vote any voting securities of the Company; (b) form, join or in any way\nparticipate in a “group” (as defined under the 1934 Act) with respect to any of the types of matters set forth in (a) above or (e) below;\n(c) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in\n(a) above or (e) below; (d) publicly request any amendment or waiver of any provision of this agreement; (e) otherwise act, alone or in\nconcert with others, to seek to control the management, Board of Directors or policies of the Company; or (f) enter into any discussions or\narrangements with any third party (other than your Representatives) with respect to any of the foregoing.\n7. You understand and acknowledge that none of the Company, Raymond James, their respective affiliates or and the respective\nRepresentatives of the foregoing is making any representation or warranty, express or implied, as to the accuracy or completeness of the\nEvaluation Material, and each of the Company, Raymond James, their affiliates and the respective Representatives of the foregoing shall\nhave no liability to you, any of your affiliates, any of your or your affiliates’ Representatives or any other person that may be based upon or\nrelate to (a) the use of the Evaluation Material by you, your affiliates, or any of the respective Representatives of the foregoing or (b) any\nerrors therein or omissions therefrom. Only those particular representations and warranties, if any, that are made in a detailed, executed,\nwritten definitive agreement in customary form with respect to the Transaction (the “Definitive Agreement”) when, as, and if it is executed,\nand subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect. Except for the\nobligations expressly set forth in this agreement or as may be set forth in a Definitive Agreement, neither you nor the Company nor any of\nthe respective Representatives of you and the Company shall have any obligation of any kind relating to or in connection with the\nTransaction or any similar transaction. For purposes of this paragraph, the term “Definitive Agreement” does not include an executed letter\nof intent or any other preliminary written agreement, nor does it include any written or oral acceptance of an offer or bid on your part. You\nunderstand and agree that you are aware, and your Representatives are aware, that, under certain circumstances, the federal and state\nsecurities laws prohibit any person who has material, non-public information about a company from purchasing or selling securities of such\na company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that the\nperson is likely to purchase or sell those securities.\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 5\n8. You hereby represent that, as of the date of this agreement, neither you nor any of your affiliates nor anyone acting on your behalf, has\nacquired record or beneficial ownership of any voting securities of the Company or of any securities convertible into or exchangeable for\nvoting securities of the Company.\n9. This agreement and all controversies arising from or relating to performance under this letter agreement shall be governed by and construed\nin accordance with the laws of the State of New York. Upon any breach or threatened breach of the provisions of this agreement, both\nparties shall be entitled to equitable relief, including in the form of injunctions and orders for specific performance, in addition to all other\nremedies available to the non-breaching party at law or in equity. You hereby irrevocably and unconditionally consent to submit to the\nexclusive jurisdiction of the state and federal courts located in the Borough of Manhattan in the State of New York for any actions, suits or\nproceedings arising out of or relating to this agreement and the transactions contemplated hereby, and further agree that service of any\nprocess, summons, notice or document by U.S . registered mail to your address set forth above shall be effective service of process for any\naction, suit or proceeding brought against you in any such court. You hereby irrevocably and unconditionally waive any objection to the\nlaying of venue of any action, suit or proceeding arising out of this agreement or the transactions contemplated hereby in the state and\nfederal courts located in the Borough of Manhattan in the State of New York, and hereby further irrevocably and unconditionally waive and\nagree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an\ninconvenient forum.\n10. It is understood by the parties hereto that after you sign this agreement, the Company shall provide you with the actual name of the\nCompany. If you inform the Company within two (2) business days after learning the actual name of the Company (the “Waiting Period”)\nthat you will not pursue the Transaction, this agreement shall be terminated immediately, subject to paragraph 14 of this agreement, except\nwith regard to the eighteen (18) month term set forth in paragraph 14(c). The Company shall only provide you with further Evaluation\nMaterial after the earlier to occur of: (a) the termination of the Waiting Period and (b) notification from you that you will pursue the\nTransaction.\n11. Subject to your observance of the confidentiality obligations set forth herein, nothing in this agreement shall prevent you from evaluating a\npossible investment in and/or collaborating with, or entering into any transaction with (including an investment in), or monitoring,\nmanaging, maintaining or otherwise acting with respect to an investment in, a company whose business is similar to or competitive with the\nbusiness of the Company. The Company acknowledges that you deal with many companies, some of which may, independently of the\nCompany, pursue similar or competitive paths regarding their products or services, technology and/or market development plans to those\nwhich are or may be pursued by the Company. Although you are subject to the confidentiality obligations set forth in this agreement, the\noccurrence or existence of such similar or competitive activities shall not by itself be cause for any action or allegation by the Company\nthat you have failed to observe any of the confidentiality obligations set forth above.\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 6\n12. No past, present or future director, officer, employee, member, shareholder, incorporator, partner, and/or affiliate of yours or any affiliate\nthereof except to the extent any of the foregoing is a party to and bound by the terms of this agreement shall have any liability for your\nobligations under this agreement or for any claim based on, in respect of or by reason of such obligations or their creation.\n13. For the avoidance of doubt, in the event there is any conflict, inconsistency or additional obligation between this agreement and the terms\nand conditions of any electronic dataroom now or hereafter applicable to you or your Representatives, the terms and conditions of this\nagreement shall govern and constitute the terms and conditions with respect to the access of Evaluation Material by you or your\nRepresentatives in any electronic dataroom.\n14. (a) No failure or delay by the Company in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder. This agreement can only be modified or waived in writing.\n(b) The invalidity or unenforceability of any provision of this letter agreement shall not affect the validity or enforceability of any other\nprovisions of this agreement, which shall remain in full force and effect. This agreement contains the entire agreement between the\nCompany and you concerning the subject matter hereof and supersedes all previous agreements, written or oral, relating to the subject\nmatter hereof.\n(c) This agreement and all obligations hereunder shall expire and be of no further force and effect upon 18 months from the date hereof;\nprovided, however, that Sections 7, 9 and 14 shall survive the termination of this letter agreement.\n(d) This agreement shall be binding solely upon, inure to the benefit of, and be enforceable by, each party and its respective successors and\nassigns.\n(e) This agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together\nshall constitute one and the same instrument. This agreement or any counterpart may be executed and delivered by facsimile copies, each\nof which shall be deemed to be an original.\n[Signature page follows]\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 7\nIf you agree with the foregoing, please sign both copies of this agreement and return one to me, which shall thereupon constitute our agreement\nwith respect to the subject matter of this letter.\nVery truly yours,\nBy /s/ Marc Sheinbaum\nName: Marc Sheinbaum\nTitle: CEO\nHigher One Holdings, Inc.\nCONFIRMED AND AGREED AS\nOF THE DATE WRITTEN ABOVE:\nProvidence Equity Partners L.L.C.\nBy:\n/s/ William S. Hughes\nName: William S. Hughes\nTitle:\nPrincipal	EX-99.(D)(3) 11 d210854dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nEXECUTION VERSION\nJune 23, 2015\nCONFIDENTIAL\nYou have advised the Company’s agent, Raymond James & Associates, Inc. (acting solely in its capacity as representative of the Company,\n“Raymond James™), that Providence Equity Partners L.L.C. (referred to as “you” or “your” as appropriate) is interested in exploring a possible\nnegotiated transaction with a company known to each of us under the code name “Winchester” (the “Company”) (such possible transaction, the\n“Transaction”). In that connection, you have requested certain non-public oral and written information concerning the Company from officers,\ndirectors, employees or agents of the Company and Raymond James, the Company’s financial advisor on this matter. All such information\nfurnished to you and your Representatives (as defined below) either on or after the date of this agreement, together with those portions of all\nnotes, analyses, opinions, compilations, studies, interpretations, summaries, extracts or other documents or records prepared by you or your\nRepresentatives which contain or otherwise reflect from such information, are collectively referred to herein as the “Evaluation Material.”\nYou hereby agree as follows:\n1. You and your directors and officers (or their corporate equivalents), employees, affiliates (such term as used in this agreement in relation to\nyou shall only mean those of your affiliates that have received Evaluation Material), agents, financial and other advisors (including, for the\navoidance of doubt, counsel and accountants of the same), counsel, accountants, Permitted Financing Sources (as defined below)\n(including, for the avoidance of doubt, any representatives of the same) (collectively, the “Representatives”) shall use the Evaluation\nMaterial solely for the purpose of evaluating, negotiating and implementing the Transaction and shall keep the Evaluation Material\nconfidential, except that you and your Representatives may disclose the Evaluation Material or portions thereof to those of your\nRepresentatives who need to know such information for the purpose of evaluating, negotiating and implementing the Transaction. You shall\ninform your Representatives of the existence and terms of this agreement and direct them to comply with all obligations in this agreement\nthat apply to your Representatives or with which this agreement states you shall direct your representatives to comply. You shall be\nresponsible for any breach of the provisions of this agreement expressly applicable to your Representatives by your Representatives;\nprovided, that you shall not be responsible for a breach by any Representative that has executed a separate confidentiality agreement with\nthe Company. If you or any of your Representatives is required (by deposition, interrogatory, request for documents, subpoena, civil\ninvestigative demand or similar process) to disclose any of the Evaluation Material or any Transaction Information, you or your\nRepresentative, as the case may be, shall (other than in the case of a routine inquiry by a regulatory authority, self-regulatory authority,\nstock exchange or bank examiner not directly targeting the Company or the Transaction) provide the Company with written notice of such\nrequirement as soon as practicable after learning of it and shall furnish only that portion of the Evaluation Material or Transaction\nInformation which you or your Representatives, as the case may be, is advised by counsel is legally required. You shall cooperate (at the\nexpense of the Company) in efforts to obtain a protective order and otherwise exercise commercially reasonable efforts to assure\nconfidential treatment will be accorded such Evaluation Material. As used herein, “Permitted Financing Sources” means any of your\npotential sources of debt or equity financing as shall have been approved in\nCONFIDENTIAL\nProvidence Equity June 23, 2015\nNon-Disclosure Agreement Page 2\nwriting by the Company prior to any Evaluation Material or Transaction Information having been provided to such source or any of its\nRepresentatives. For the avoidance of doubt, your Representatives shall not include any debt or equity financing sources other than\nPermitted Financing Sources.\n2. If the Company or Raymond James so requests in writing, you shall as promptly as practicable return to the Company or destroy (at your\nsole election) all copies of the Evaluation Material furnished to you by or on behalf of the Company in your possession or, in the case of the\npossession of your Representatives, direct your Representatives to do the same. All other written Evaluation Material will be destroyed by\nyou and all oral Evaluation Material will be held subject to the terms of this agreement. You agree to confirm in writing, if so requested by\nthe Company, your compliance with the provisions of this paragraph once you have been requested to return or destroy all Evaluation\nMaterial. Notwithstanding the foregoing, (a) entities may retain copies of the Evaluation Material in accordance with bona fide policies and\nprocedures implemented to comply with applicable law, regulator, professional standards or business practice and (b) compliance with this\nSection 2 will not limit the ongoing confidentiality and other applicable obligations under this agreement.\n3. The term “Evaluation Material” does not include any information which (i) at the time of disclosure or thereafter is generally available to\nthe participants in the industry in which the Company primarily participates or to the public (in each case, other than as a result of a\ndisclosure directly by you or any of the Representatives), (ii) was available to you or your Representatives without a duty of confidentiality\ndirectly or indirectly to the Company (A) prior to disclosure by the Company or (B) from a source that, to your knowledge, is not\nprohibited from disclosing such information to you by a contractual, legal or fiduciary obligation directly or indirectly to the Company or\n(iv) was or is independently developed by you or your Representatives without use of the Evaluation Material. The Evaluation Material\nshall remain the property of the Company to the extent it is the property of the Company prior to its disclosure hereunder and its disclosure\nshall not confer on you or any of your Representatives any rights (including intellectual property rights) over the Evaluation Material\nwhatsoever beyond those contained in this agreement.\n4. Without the prior written consent of the Board of Directors of the Company, you shall not, and shall direct your Representatives not to, and\nto the extent the Company makes a disclosure referencing you or your affiliates, it and its Representatives shall not, disclose to any person\nor entity (a) that any investigations, discussions or negotiations are taking place concerning a possible transaction involving the Company\nand you, (b) that you have requested or received any Evaluation Material or (c) or any of the terms, conditions or other facts with respect to\nthe Transaction, including the status thereof (collectively, the “Transaction Information”). You represent that in considering the Transaction\nand reviewing the Evaluation Material, you and your Representatives are acting solely on your own behalf and not as part of a group with\nany third parties. You will not, directly or indirectly, except with the prior written consent of the Company, enter into any oral or written\nagreement, arrangement or understanding with any other person, or approach or have discussions with any person that may lead to the same\nwith any person regarding the possibility of joining in a combined proposal for a Transaction or a follow-on acquisition of part of the\nCompany or its\nCONFIDENTIAL\nProvidence Equity June 23, 2015\nNon-Disclosure Agreement Page 3\nassets, and you represent and warrant that neither you nor any of your Representatives has entered into any such agreement, arrangement,\nunderstanding or discussions prior to the date hereof. Furthermore, you will not, directly or through others, enter into any oral or written\nagreement, arrangement or understanding (or discussions that could reasonably be expected to lead to such an agreement, arrangement or\nunderstanding) regarding the engagement of a debt or equity financing source on an exclusive basis or in such a manner that would\notherwise prohibit or impede any other person from obtaining debt financing from such financing source in connection with a transaction\nwith the Company; provided, however, that a customary non-disclosure or confidentiality agreement that does not contain an exclusivity,\n“lock-up”, “dry-up” or similar provision shall not be deemed to so limit, restrict, restrain or impair such financing source.\n>\nNotwithstanding any other provision of this agreement, nothing shall prohibit or restrict you from entering into a customary “tree”\narrangement with a financial institution at which a deal team is working on obtaining or providing potential financing for you for purposes\nof the Transaction (and is not permitted to work on obtaining or providing potential financing for any other bidder pursuing a transaction\ninvolving the Company so long as other deal teams at such institution are permitted to work on obtaining or providing potential financing\nfor other bidders pursuing a transaction involving the Company.\n5. Until the consummation of the Transaction by you or a third party, you shall not initiate or maintain contact (except for those contacts made\nin the ordinary course of business) with any officer, director, or employee of the Company or its subsidiaries, except with the express prior\npermission of the Chief Executive Officer of the Company or Raymond James. For a period of 18 months from the date hereof, you shall\nnot, and shall not permit any of your affiliates to, directly or indirectly, solicit for employment, or hire, any person who is an employee of\nthe Company or any of its subsidiaries with whom you or any of your Representatives have had contact or have been specifically identified\nto you (other than solely on an employee census) during the period of your investigation of the Company or its subsidiaries; provided that\nnothing herein shall restrict or preclude (a) your right to make generalized searches for employees by use of advertisements in any medium\nor to engage firms to conduct such searches, and from hiring employees as a result of such search, so long as such firms do not target or\nfocus on the Company or any of its subsidiaries or (b) the solicitation for hire or hiring of any such person whose employment was\nterminated by the Company at least 90 days prior to such solicitation. It is understood that, unless otherwise agreed to or directed by the\nCompany, all requests for information, tours and meetings, all questions or discussions relating to the procedures in making a proposal and\nall communications regarding the Transaction will be directed to Raymond James. The Company and Raymond James shall be free to\nconduct the process for exploring a potential Transaction, including access to Evaluation Material, as they in their sole discretion shall\ndetermine and to discontinue or change such process (including any previously announced rules or procedure), including as relates to\naccess to Evaluation Material, at any time, for any reason and without notice to you, and none of the Company, Raymond James, or any of\ntheir respective officers, directors, employees, agents or affiliates, shall have any liability to you as a result of such process. You further\nunderstand and agree that the Company and its Representatives shall not be limited at any time or in any way from entering into\nnegotiations and discussions with another party for a possible transaction in lieu of the Transaction or from entering into a definitive\nagreement with respect thereto without prior notice to you or your Representatives.\nCONFIDENTIAL\nProvidence Equity June 23, 2015\nNon-Disclosure Agreement Page 4\n6.  You agree that, for a period of 18 months from the date of this agreement, unless such shall have been specifically invited or approved in\nwriting by the Board of Directors of the Company, neither you nor any of your affiliates or Representatives will in any manner, directly or\nindirectly, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any\nother person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) an acquisition of any securities\n(or of beneficial ownership thereof) or a material amount of the assets of the Company; (ii) any tender or exchange offer, merger or other\nbusiness combination involving the Company or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or\nother extraordinary transaction with respect to the Company; or (iv) any “solicitation” of “proxies (as such terms are used in the rules of\nthe Securities and Exchange Commission) or consents to vote any voting securities of the Company; (b) form, join or in any way\nparticipate in a “group” (as defined under the 1934 Act) with respect to any of the types of matters set forth in (a) above or (e) below;\n(c) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in\n(a) above or (e) below; (d) publicly request any amendment or waiver of any provision of this agreement; (e) otherwise act, alone or in\nconcert with others, to seek to control the management, Board of Directors or policies of the Company; or (f) enter into any discussions or\narrangements with any third party (other than your Representatives) with respect to any of the foregoing.\nYou understand and acknowledge that none of the Company, Raymond James, their respective affiliates or and the respective\nRepresentatives of the foregoing is making any representation or warranty, express or implied, as to the accuracy or completeness of the\nEvaluation Material, and each of the Company, Raymond James, their affiliates and the respective Representatives of the foregoing shall\nhave no liability to you, any of your affiliates, any of your or your affiliates’ Representatives or any other person that may be based upon or\nrelate to (a) the use of the Evaluation Material by you, your affiliates, or any of the respective Representatives of the foregoing or (b) any\nerrors therein or omissions therefrom. Only those particular representations and warranties, if any, that are made in a detailed, executed,\nwritten definitive agreement in customary form with respect to the Transaction (the “Definitive Agreement”) when, as, and if it is executed,\nand subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect. Except for the\nobligations expressly set forth in this agreement or as may be set forth in a Definitive Agreement, neither you nor the Company nor any of\nthe respective Representatives of you and the Company shall have any obligation of any kind relating to or in connection with the\nTransaction or any similar transaction. For purposes of this paragraph, the term “Definitive Agreement” does not include an executed letter\nof intent or any other preliminary written agreement, nor does it include any written or oral acceptance of an offer or bid on your part. You\nunderstand and agree that you are aware, and your Representatives are aware, that, under certain circumstances, the federal and state\nsecurities laws prohibit any person who has material, non-public information about a company from purchasing or selling securities of such\na company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that the\nperson is likely to purchase or sell those securities.\nCONFIDENTIAL\nProvidence Equity June 23, 2015\nNon-Disclosure Agreement Page 5\n8.  You hereby represent that, as of the date of this agreement, neither you nor any of your affiliates nor anyone acting on your behalf, has\n10. 11. acquired record or beneficial ownership of any voting securities of the Company or of any securities convertible into or exchangeable for\nvoting securities of the Company.\nThis agreement and all controversies arising from or relating to performance under this letter agreement shall be governed by and construed\nin accordance with the laws of the State of New York. Upon any breach or threatened breach of the provisions of this agreement, both\nparties shall be entitled to equitable relief, including in the form of injunctions and orders for specific performance, in addition to all other\nremedies available to the non-breaching party at law or in equity. You hereby irrevocably and unconditionally consent to submit to the\nexclusive jurisdiction of the state and federal courts located in the Borough of Manhattan in the State of New York for any actions, suits or\nproceedings arising out of or relating to this agreement and the transactions contemplated hereby, and further agree that service of any\nprocess, summons, notice or document by U.S. registered mail to your address set forth above shall be effective service of process for any\naction, suit or proceeding brought against you in any such court. You hereby irrevocably and unconditionally waive any objection to the\nlaying of venue of any action, suit or proceeding arising out of this agreement or the transactions contemplated hereby in the state and\nfederal courts located in the Borough of Manhattan in the State of New York, and hereby further irrevocably and unconditionally waive and\nagree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an\ninconvenient forum.\nIt is understood by the parties hereto that after you sign this agreement, the Company shall provide you with the actual name of the\nCompany. If you inform the Company within two (2) business days after learning the actual name of the Company (the “Waiting Period”)\nthat you will not pursue the Transaction, this agreement shall be terminated immediately, subject to paragraph 14 of this agreement, except\nwith regard to the eighteen (18) month term set forth in paragraph 14(c). The Company shall only provide you with further Evaluation\nMaterial after the earlier to occur of: (a) the termination of the Waiting Period and (b) notification from you that you will pursue the\nTransaction.\nSubject to your observance of the confidentiality obligations set forth herein, nothing in this agreement shall prevent you from evaluating a\npossible investment in and/or collaborating with, or entering into any transaction with (including an investment in), or monitoring,\nmanaging, maintaining or otherwise acting with respect to an investment in, a company whose business is similar to or competitive with the\nbusiness of the Company. The Company acknowledges that you deal with many companies, some of which may, independently of the\nCompany, pursue similar or competitive paths regarding their products or services, technology and/or market development plans to those\nwhich are or may be pursued by the Company. Although you are subject to the confidentiality obligations set forth in this agreement, the\noccurrence or existence of such similar or competitive activities shall not by itself be cause for any action or allegation by the Company\nthat you have failed to observe any of the confidentiality obligations set forth above.\nCONFIDENTIAL\nProvidence Equity June 23, 2015\nNon-Disclosure Agreement Page 6\n12.  No past, present or future director, officer, employee, member, shareholder, incorporator, partner, and/or affiliate of yours or any affiliate\n13. 14. thereof except to the extent any of the foregoing is a party to and bound by the terms of this agreement shall have any liability for your\nobligations under this agreement or for any claim based on, in respect of or by reason of such obligations or their creation.\nFor the avoidance of doubt, in the event there is any conflict, inconsistency or additional obligation between this agreement and the terms\nand conditions of any electronic dataroom now or hereafter applicable to you or your Representatives, the terms and conditions of this\nagreement shall govern and constitute the terms and conditions with respect to the access of Evaluation Material by you or your\nRepresentatives in any electronic dataroom.\n(a) No failure or delay by the Company in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder. This agreement can only be modified or waived in writing.\n(b) The invalidity or unenforceability of any provision of this letter agreement shall not affect the validity or enforceability of any other\nprovisions of this agreement, which shall remain in full force and effect. This agreement contains the entire agreement between the\nCompany and you concerning the subject matter hereof and supersedes all previous agreements, written or oral, relating to the subject\nmatter hereof.\n(c) This agreement and all obligations hereunder shall expire and be of no further force and effect upon 18 months from the date hereof;\nprovided, however, that Sections 7, 9 and 14 shall survive the termination of this letter agreement.\n(d) This agreement shall be binding solely upon, inure to the benefit of, and be enforceable by, each party and its respective successors and\nassigns.\n(e) This agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together\nshall constitute one and the same instrument. This agreement or any counterpart may be executed and delivered by facsimile copies, each\nof which shall be deemed to be an original.\n[Signature page follows]\nCONFIDENTIAL\nProvidence Equity June 23, 2015\nNon-Disclosure Agreement Page 7\nIf you agree with the foregoing, please sign both copies of this agreement and return one to me, which shall thereupon constitute our agreement\nwith respect to the subject matter of this letter.\nVery truly yours,\nBy /s/ Marc Sheinbaum\nName: Marc Sheinbaum\nTitle: CEO\nHigher One Holdings, Inc.\nCONFIRMED AND AGREED AS\nOF THE DATE WRITTEN ABOVE:\nProvidence Equity Partners L.L.C.\nBy: /s/ William S. Hughes\nName: William S. Hughes\nTitle:  Principal	EX-99.(D)(3) 11 d210854dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nEXECUTION VERSION\nJune 23, 2015\nCONFIDENTIAL\nYou have advised the Company's agent, Raymond James & Associates, Inc. (acting solely in its capacity as representative of the Company,\n"Raymond James"), that Providence Equity Partners L.L.C. (referred to as "you" or "your" as appropriate) is interested in exploring a possible\nnegotiated transaction with a company known to each of us under the code name "Winchester" (the "Company") (such possible transaction, the\n"Transaction"). In that connection, you have requested certain non-public oral and written information concerning the Company from officers,\ndirectors, employees or agents of the Company and Raymond James, the Company's financial advisor on this matter. All such information\nfurnished to you and your Representatives (as defined below) either on or after the date of this agreement, together with those portions of all\nnotes, analyses, opinions, compilations, studies, interpretations, summaries, extracts or other documents or records prepared by you or your\nRepresentatives which contain or otherwise reflect from such information, are collectively referred to herein as the "Evaluation Material."\nYou hereby agree as follows:\n1.\nYou and your directors and officers (or their corporate equivalents), employees, affiliates (such term as used in this agreement in relation to\nyou shall only mean those of your affiliates that have received Evaluation Material), agents, financial and other advisors (including, for the\navoidance of doubt, counsel and accountants of the same), counsel, accountants, Permitted Financing Sources (as defined below)\n(including, for the avoidance of doubt, any representatives of the same) (collectively, the "Representatives") shall use the Evaluation\nMaterial solely for the purpose of evaluating, negotiating and implementing the Transaction and shall keep the Evaluation Material\nconfidential, except that you and your Representatives may disclose the Evaluation Material or portions thereof to those of your\nRepresentatives who need to know such information for the purpose of evaluating, negotiating and implementing the Transaction. You shall\ninform your Representatives of the existence and terms of this agreement and direct them to comply with all obligations in this agreement\nthat apply to your Representatives or with which this agreement states you shall direct your representatives to comply. You shall be\nresponsible for any breach of the provisions of this agreement expressly applicable to your Representatives by your Representatives;\nprovided, that you shall not be responsible for a breach by any Representative that has executed a separate confidentiality agreement with\nthe Company. If you or any of your Representatives is required (by deposition, interrogatory, request for documents, subpoena, civil\ninvestigative demand or similar process) to disclose any of the Evaluation Material or any Transaction Information, you or your\nRepresentative, as the case may be, shall (other than in the case of a routine inquiry by a regulatory authority, self-regulatory authority,\nstock exchange or bank examiner not directly targeting the Company or the Transaction) provide the Company with written notice of such\nrequirement as soon as practicable after learning of it and shall furnish only that portion of the Evaluation Material or Transaction\nInformation which you or your Representatives, as the case may be, is advised by counsel is legally required. You shall cooperate (at the\nexpense of the Company) in efforts to obtain a protective order and otherwise exercise commercially reasonable efforts to assure\nconfidential treatment will be accorded such Evaluation Material. As used herein, "Permitted Financing Sources" means any of your\npotential sources of debt or equity financing as shall have been approved in\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 2\nwriting by the Company prior to any Evaluation Material or Transaction Information having been provided to such source or any of its\nRepresentatives. For the avoidance of doubt, your Representatives shall not include any debt or equity financing sources other than\nPermitted Financing Sources.\n2.\nIf the Company or Raymond James so requests in writing, you shall as promptly as practicable return to the Company or destroy (at your\nsole election) all copies of the Evaluation Material furnished to you by or on behalf of the Company in your possession or, in the case of the\npossession of your Representatives, direct your Representatives to do the same. All other written Evaluation Material will be destroyed by\nyou and all oral Evaluation Material will be held subject to the terms of this agreement. You agree to confirm in writing, if so requested by\nthe Company, your compliance with the provisions of this paragraph once you have been requested to return or destroy all Evaluation\nMaterial. Notwithstanding the foregoing, (a) entities may retain copies of the Evaluation Material in accordance with bona fide policies and\nprocedures implemented to comply with applicable law, regulator, professional standards or business practice and (b) compliance with this\nSection 2 will not limit the ongoing confidentiality and other applicable obligations under this agreement.\n3.\nThe term "Evaluation Material" does not include any information which (i) at the time of disclosure or thereafter is generally available to\nthe participants in the industry in which the Company primarily participates or to the public (in each case, other than as a result of a\ndisclosure directly by you or any of the Representatives), (ii) was available to you or your Representatives without a duty of confidentiality\ndirectly or indirectly to the Company (A) prior to disclosure by the Company or (B) from a source that, to your knowledge, is not\nprohibited from disclosing such information to you by a contractual, legal or fiduciary obligation directly or indirectly to the Company or\n(iv) was or is independently developed by you or your Representatives without use of the Evaluation Material. The Evaluation Material\nshall remain the property of the Company to the extent it is the property of the Company prior to its disclosure hereunder and its disclosure\nshall not confer on you or any of your Representatives any rights (including intellectual property rights) over the Evaluation Material\nwhatsoever beyond those contained in this agreement.\n4.\nWithout the prior written consent of the Board of Directors of the Company, you shall not, and shall direct your Representatives not to, and\nto the extent the Company makes a disclosure referencing you or your affiliates, it and its Representatives shall not, disclose to any person\nor entity (a) that any investigations, discussions or negotiations are taking place concerning a possible transaction involving the Company\nand you, (b) that you have requested or received any Evaluation Material or (c) or any of the terms, conditions or other facts with respect to\nthe Transaction, including the status thereof (collectively, the "Transaction Information"). You represent that in considering the Transaction\nand reviewing the Evaluation Material, you and your Representatives are acting solely on your own behalf and not as part of a group with\nany third parties. You will not, directly or indirectly, except with the prior written consent of the Company, enter into any oral or written\nagreement, arrangement or understanding with any other person, or approach or have discussions with any person that may lead to the same\nwith any person regarding the possibility of joining in a combined proposal for a Transaction or a follow-on acquisition of part of the\nCompany or its\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 3\nassets, and you represent and warrant that neither you nor any of your Representatives has entered into any such agreement, arrangement,\nunderstanding or discussions prior to the date hereof. Furthermore, you will not, directly or through others, enter into any oral or written\nagreement, arrangement or understanding (or discussions that could reasonably be expected to lead to such an agreement, arrangement or\nunderstanding) regarding the engagement of a debt or equity financing source on an exclusive basis or in such a manner that would\notherwise prohibit or impede any other person from obtaining debt financing from such financing source in connection with a transaction\nwith the Company; provided, however, that a customary non-disclosure or confidentiality agreement that does not contain an exclusivity,\n"lock-up", "dry-up" or similar provision shall not be deemed to so limit, restrict, restrain or impair such financing source.\nNotwithstanding any other provision of this agreement, nothing shall prohibit or restrict you from entering into a customary "tree"\narrangement with a financial institution at which a deal team is working on obtaining or providing potential financing for you for purposes\nof the Transaction (and is not permitted to work on obtaining or providing potential financing for any other bidder pursuing a transaction\ninvolving the Company so long as other deal teams at such institution are permitted to work on obtaining or providing potential financing\nfor other bidders pursuing a transaction involving the Company.\n5.\nUntil the consummation of the Transaction by you or a third party, you shall not initiate or maintain contact (except for those contacts made\nin the ordinary course of business) with any officer, director, or employee of the Company or its subsidiaries, except with the express prior\npermission of the Chief Executive Officer of the Company or Raymond James. For a period of 18 months from the date hereof, you shall\nnot, and shall not permit any of your affiliates to, directly or indirectly, solicit for employment, or hire, any person who is an employee of\nthe Company or any of its subsidiaries with whom you or any of your Representatives have had contact or have been specifically identified\nto you (other than solely on an employee census) during the period of your investigation of the Company or its subsidiaries; provided that\nnothing herein shall restrict or preclude (a) your right to make generalized searches for employees by use of advertisements in any medium\nor to engage firms to conduct such searches, and from hiring employees as a result of such search, so long as such firms do not target or\nfocus on the Company or any of its subsidiaries or (b) the solicitation for hire or hiring of any such person whose employment was\nterminated by the Company at least 90 days prior to such solicitation. It is understood that, unless otherwise agreed to or directed by the\nCompany, all requests for information, tours and meetings, all questions or discussions relating to the procedures in making a proposal and\nall communications regarding the Transaction will be directed to Raymond James. The Company and Raymond James shall be free to\nconduct the process for exploring a potential Transaction, including access to Evaluation Material, as they in their sole discretion shall\ndetermine and to discontinue or change such process (including any previously announced rules or procedure), including as relates to\naccess to Evaluation Material, at any time, for any reason and without notice to you, and none of the Company, Raymond James, or any of\ntheir respective officers, directors, employees, agents or affiliates, shall have any liability to you as a result of such process. You further\nunderstand and agree that the Company and its Representatives shall not be limited at any time or in any way from entering into\nnegotiations and discussions with another party for a possible transaction in lieu of the Transaction or from entering into a definitive\nagreement with respect thereto without prior notice to you or your Representatives.\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 4\n6.\nYou agree that, for a period of 18 months from the date of this agreement, unless such shall have been specifically invited or approved in\nwriting by the Board of Directors of the Company, neither you nor any of your affiliates or Representatives will in any manner, directly or\nindirectly, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any\nother person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) an acquisition of any securities\n(or of beneficial ownership thereof) or a material amount of the assets of the Company; (ii) any tender or exchange offer, merger or other\nbusiness combination involving the Company or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or\nother extraordinary transaction with respect to the Company; or (iv) any "solicitation" of "proxies" (as such terms are used in the rules of\nthe Securities and Exchange Commission) or consents to vote any voting securities of the Company; (b) form, join or in any way\nparticipate in a "group" (as defined under the 1934 Act) with respect to any of the types of matters set forth in (a) above or (e) below;\n(c) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in\n(a) above or (e) below; (d) publicly request any amendment or waiver of any provision of this agreement; (e) otherwise act, alone or in\nconcert with others, to seek to control the management, Board of Directors or policies of the Company; or (f) enter into any discussions or\narrangements with any third party (other than your Representatives) with respect to any of the foregoing.\n7.\nYou understand and acknowledge that none of the Company, Raymond James, their respective affiliates or and the respective\nRepresentatives of the foregoing is making any representation or warranty, express or implied, as to the accuracy or completeness of the\nEvaluation Material, and each of the Company, Raymond James, their affiliates and the respective Representatives of the foregoing shall\nhave no liability to you, any of your affiliates, any of your or your affiliates' Representatives or any other person that may be based upon or\nrelate to (a) the use of the Evaluation Material by you, your affiliates, or any of the respective Representatives of the foregoing or (b) any\nerrors therein or omissions therefrom. Only those particular representations and warranties, if any, that are made in a detailed, executed,\nwritten definitive agreement in customary form with respect to the Transaction (the "Definitive Agreement") when, as, and if it is executed,\nand subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect. Except for the\nobligations expressly set forth in this agreement or as may be set forth in a Definitive Agreement, neither you nor the Company nor any of\nthe respective Representatives of you and the Company shall have any obligation of any kind relating to or in connection with the\nTransaction or any similar transaction. For purposes of this paragraph, the term "Definitive Agreement" does not include an executed letter\nof intent or any other preliminary written agreement, nor does it include any written or oral acceptance of an offer or bid on your part. You\nunderstand and agree that you are aware, and your Representatives are aware, that, under certain circumstances, the federal and state\nsecurities laws prohibit any person who has material, non-public information about a company from purchasing or selling securities of such\na company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that the\nperson is likely to purchase or sell those securities.\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 5\n8. You hereby represent that, as of the date of this agreement, neither you nor any of your affiliates nor anyone acting on your behalf, has\nacquired record or beneficial ownership of any voting securities of the Company or of any securities convertible into or exchangeable for\nvoting securities of the Company.\n9.\nThis agreement and all controversies arising from or relating to performance under this letter agreement shall be governed by and construed\nin accordance with the laws of the State of New York. Upon any breach or threatened breach of the provisions of this agreement, both\nparties shall be entitled to equitable relief, including in the form of injunctions and orders for specific performance, in addition to all other\nremedies available to the non-breaching party at law or in equity. You hereby irrevocably and unconditionally consent to submit to the\nexclusive jurisdiction of the state and federal courts located in the Borough of Manhattan in the State of New York for any actions, suits\nor\nproceedings arising out of or relating to this agreement and the transactions contemplated hereby, and further agree that service of any\nprocess, summons, notice or document by U.S. registered mail to your address set forth above shall be effective service of process for any\naction, suit or proceeding brought against you in any such court. You hereby irrevocably and unconditionally waive any objection to the\nlaying of venue of any action, suit or proceeding arising out of this agreement or the transactions contemplated hereby in the state and\nfederal courts located in the Borough of Manhattan in the State of New York, and hereby further irrevocably and unconditionally waive and\nagree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an\ninconvenient forum.\n10.\nIt is understood by the parties hereto that after you sign this agreement, the Company shall provide you with the actual name of the\nCompany. If you inform the Company within two (2) business days after learning the actual name of the Company (the "Waiting Period")\nthat you will not pursue the Transaction, this agreement shall be terminated immediately, subject to paragraph 14 of this agreement, except\nwith regard to the eighteen (18) month term set forth in paragraph 14(c). The Company shall only provide you with further Evaluation\nMaterial after the earlier to occur of: (a) the termination of the Waiting Period and (b) notification from you that you will pursue the\nTransaction.\n11. Subject to your observance of the confidentiality obligations set forth herein, nothing in this agreement shall prevent you from evaluating\na\npossible investment in and/or collaborating with, or entering into any transaction with (including an investment in), or monitoring,\nmanaging, maintaining or otherwise acting with respect to an investment in, a company whose business is similar to or competitive with the\nbusiness of the Company. The Company acknowledges that you deal with many companies, some of which may, independently of the\nCompany, pursue similar or competitive paths regarding their products or services, technology and/or market development plans to those\nwhich are or may be pursued by the Company. Although you are subject to the confidentiality obligations set forth in this agreement, the\noccurrence or existence of such similar or competitive activities shall not by itself be cause for any action or allegation by the Company\nthat you have failed to observe any of the confidentiality obligations set forth above.\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 6\n12. No past, present or future director, officer, employee, member, shareholder, incorporator, partner, and/or affiliate of yours or any affiliate\nthereof except to the extent any of the foregoing is a party to and bound by the terms of this agreement shall have any liability for your\nobligations under this agreement or for any claim based on, in respect of or by reason of such obligations or their creation.\n13. For the avoidance of doubt, in the event there is any conflict, inconsistency or additional obligation between this agreement and the terms\nand conditions of any electronic dataroom now or hereafter applicable to you or your Representatives, the terms and conditions of this\nagreement shall govern and constitute the terms and conditions with respect to the access of Evaluation Material by you or your\nRepresentatives in any electronic dataroom.\n14.\n(a) No failure or delay by the Company in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder. This agreement can only be modified or waived in writing.\n(b) The invalidity or unenforceability of any provision of this letter agreement shall not affect the validity or enforceability of any other\nprovisions of this agreement, which shall remain in full force and effect. This agreement contains the entire agreement between the\nCompany and you concerning the subject matter hereof and supersedes all previous agreements, written or oral, relating to the subject\nmatter hereof.\n(c) This agreement and all obligations hereunder shall expire and be of no further force and effect upon 18 months from the date hereof;\nprovided, however, that Sections 7, 9 and 14 shall survive the termination of this letter agreement.\n(d) This agreement shall be binding solely upon, inure to the benefit of, and be enforceable by, each party and its respective successors and\nassigns.\n(e) This agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together\nshall constitute one and the same instrument. This agreement or any counterpart may be executed and delivered by facsimile copies, each\nof which shall be deemed to be an original.\n[Signature page follows]\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 7\nIf you agree with the foregoing, please sign both copies of this agreement and return one to me, which shall thereupon constitute our agreement\nwith respect to the subject matter of this letter.\nVery truly yours,\nBy /s/ Marc Sheinbaum\nName: Marc Sheinbaum\nTitle: CEO\nHigher One Holdings, Inc.\nCONFIRMED AND AGREED AS\nOF THE DATE WRITTEN ABOVE:\nProvidence Equity Partners L.L.C.\nBy:\n/s/ William S. Hughes\nName: William S. Hughes\nTitle:\nPrincipal	EX-99.(D)(3) 11 d210854dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nEXECUTION VERSION\nJune 23, 2015\nCONFIDENTIAL\nYou have advised the Company’s agent, Raymond James & Associates, Inc. (acting solely in its capacity as representative of the Company,\n“Raymond James”), that Providence Equity Partners L.L.C . (referred to as “you” or “your” as appropriate) is interested in exploring a possible\nnegotiated transaction with a company known to each of us under the code name “Winchester” (the “Company”) (such possible transaction, the\n“Transaction”). In that connection, you have requested certain non-public oral and written information concerning the Company from officers,\ndirectors, employees or agents of the Company and Raymond James, the Company’s financial advisor on this matter. All such information\nfurnished to you and your Representatives (as defined below) either on or after the date of this agreement, together with those portions of all\nnotes, analyses, opinions, compilations, studies, interpretations, summaries, extracts or other documents or records prepared by you or your\nRepresentatives which contain or otherwise reflect from such information, are collectively referred to herein as the “Evaluation Material.”\nYou hereby agree as follows:\n1. You and your directors and officers (or their corporate equivalents), employees, affiliates (such term as used in this agreement in relation to\nyou shall only mean those of your affiliates that have received Evaluation Material), agents, financial and other advisors (including, for the\navoidance of doubt, counsel and accountants of the same), counsel, accountants, Permitted Financing Sources (as defined below)\n(including, for the avoidance of doubt, any representatives of the same) (collectively, the “Representatives”) shall use the Evaluation\nMaterial solely for the purpose of evaluating, negotiating and implementing the Transaction and shall keep the Evaluation Material\nconfidential, except that you and your Representatives may disclose the Evaluation Material or portions thereof to those of your\nRepresentatives who need to know such information for the purpose of evaluating, negotiating and implementing the Transaction. You shall\ninform your Representatives of the existence and terms of this agreement and direct them to comply with all obligations in this agreement\nthat apply to your Representatives or with which this agreement states you shall direct your representatives to comply. You shall be\nresponsible for any breach of the provisions of this agreement expressly applicable to your Representatives by your Representatives;\nprovided, that you shall not be responsible for a breach by any Representative that has executed a separate confidentiality agreement with\nthe Company. If you or any of your Representatives is required (by deposition, interrogatory, request for documents, subpoena, civil\ninvestigative demand or similar process) to disclose any of the Evaluation Material or any Transaction Information, you or your\nRepresentative, as the case may be, shall (other than in the case of a routine inquiry by a regulatory authority, self-regulatory authority,\nstock exchange or bank examiner not directly targeting the Company or the Transaction) provide the Company with written notice of such\nrequirement as soon as practicable after learning of it and shall furnish only that portion of the Evaluation Material or Transaction\nInformation which you or your Representatives, as the case may be, is advised by counsel is legally required. You shall cooperate (at the\nexpense of the Company) in efforts to obtain a protective order and otherwise exercise commercially reasonable efforts to assure\nconfidential treatment will be accorded such Evaluation Material. As used herein, “Permitted Financing Sources” means any of your\npotential sources of debt or equity financing as shall have been approved in\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 2\nwriting by the Company prior to any Evaluation Material or Transaction Information having been provided to such source or any of its\nRepresentatives. For the avoidance of doubt, your Representatives shall not include any debt or equity financing sources other than\nPermitted Financing Sources.\n2. If the Company or Raymond James so requests in writing, you shall as promptly as practicable return to the Company or destroy (at your\nsole election) all copies of the Evaluation Material furnished to you by or on behalf of the Company in your possession or, in the case of the\npossession of your Representatives, direct your Representatives to do the same. All other written Evaluation Material will be destroyed by\nyou and all oral Evaluation Material will be held subject to the terms of this agreement. You agree to confirm in writing, if so requested by\nthe Company, your compliance with the provisions of this paragraph once you have been requested to return or destroy all Evaluation\nMaterial. Notwithstanding the foregoing, (a) entities may retain copies of the Evaluation Material in accordance with bona fide policies and\nprocedures implemented to comply with applicable law, regulator, professional standards or business practice and (b) compliance with this\nSection 2 will not limit the ongoing confidentiality and other applicable obligations under this agreement.\n3. The term “Evaluation Material” does not include any information which (i) at the time of disclosure or thereafter is generally available to\nthe participants in the industry in which the Company primarily participates or to the public (in each case, other than as a result of a\ndisclosure directly by you or any of the Representatives), (ii) was available to you or your Representatives without a duty of confidentiality\ndirectly or indirectly to the Company (A) prior to disclosure by the Company or (B) from a source that, to your knowledge, is not\nprohibited from disclosing such information to you by a contractual, legal or fiduciary obligation directly or indirectly to the Company or\n(iv) was or is independently developed by you or your Representatives without use of the Evaluation Material. The Evaluation Material\nshall remain the property of the Company to the extent it is the property of the Company prior to its disclosure hereunder and its disclosure\nshall not confer on you or any of your Representatives any rights (including intellectual property rights) over the Evaluation Material\nwhatsoever beyond those contained in this agreement.\n4. Without the prior written consent of the Board of Directors of the Company, you shall not, and shall direct your Representatives not to, and\nto the extent the Company makes a disclosure referencing you or your affiliates, it and its Representatives shall not, disclose to any person\nor entity (a) that any investigations, discussions or negotiations are taking place concerning a possible transaction involving the Company\nand you, (b) that you have requested or received any Evaluation Material or (c) or any of the terms, conditions or other facts with respect to\nthe Transaction, including the status thereof (collectively, the “Transaction Information”). You represent that in considering the Transaction\nand reviewing the Evaluation Material, you and your Representatives are acting solely on your own behalf and not as part of a group with\nany third parties. You will not, directly or indirectly, except with the prior written consent of the Company, enter into any oral or written\nagreement, arrangement or understanding with any other person, or approach or have discussions with any person that may lead to the same\nwith any person regarding the possibility of joining in a combined proposal for a Transaction or a follow-on acquisition of part of the\nCompany or its\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 3\nassets, and you represent and warrant that neither you nor any of your Representatives has entered into any such agreement, arrangement,\nunderstanding or discussions prior to the date hereof. Furthermore, you will not, directly or through others, enter into any oral or written\nagreement, arrangement or understanding (or discussions that could reasonably be expected to lead to such an agreement, arrangement or\nunderstanding) regarding the engagement of a debt or equity financing source on an exclusive basis or in such a manner that would\notherwise prohibit or impede any other person from obtaining debt financing from such financing source in connection with a transaction\nwith the Company; provided, however, that a customary non-disclosure or confidentiality agreement that does not contain an exclusivity,\n“lock-up”, “dry-up” or similar provision shall not be deemed to so limit, restrict, restrain or impair such financing source.\nNotwithstanding any other provision of this agreement, nothing shall prohibit or restrict you from entering into a customary “tree”\narrangement with a financial institution at which a deal team is working on obtaining or providing potential financing for you for purposes\nof the Transaction (and is not permitted to work on obtaining or providing potential financing for any other bidder pursuing a transaction\ninvolving the Company so long as other deal teams at such institution are permitted to work on obtaining or providing potential financing\nfor other bidders pursuing a transaction involving the Company.\n5. Until the consummation of the Transaction by you or a third party, you shall not initiate or maintain contact (except for those contacts made\nin the ordinary course of business) with any officer, director, or employee of the Company or its subsidiaries, except with the express prior\npermission of the Chief Executive Officer of the Company or Raymond James. For a period of 18 months from the date hereof, you shall\nnot, and shall not permit any of your affiliates to, directly or indirectly, solicit for employment, or hire, any person who is an employee of\nthe Company or any of its subsidiaries with whom you or any of your Representatives have had contact or have been specifically identified\nto you (other than solely on an employee census) during the period of your investigation of the Company or its subsidiaries; provided that\nnothing herein shall restrict or preclude (a) your right to make generalized searches for employees by use of advertisements in any medium\nor to engage firms to conduct such searches, and from hiring employees as a result of such search, so long as such firms do not target or\nfocus on the Company or any of its subsidiaries or (b) the solicitation for hire or hiring of any such person whose employment was\nterminated by the Company at least 90 days prior to such solicitation. It is understood that, unless otherwise agreed to or directed by the\nCompany, all requests for information, tours and meetings, all questions or discussions relating to the procedures in making a proposal and\nall communications regarding the Transaction will be directed to Raymond James. The Company and Raymond James shall be free to\nconduct the process for exploring a potential Transaction, including access to Evaluation Material, as they in their sole discretion shall\ndetermine and to discontinue or change such process (including any previously announced rules or procedure), including as relates to\naccess to Evaluation Material, at any time, for any reason and without notice to you, and none of the Company, Raymond James, or any of\ntheir respective officers, directors, employees, agents or affiliates, shall have any liability to you as a result of such process. You further\nunderstand and agree that the Company and its Representatives shall not be limited at any time or in any way from entering into\nnegotiations and discussions with another party for a possible transaction in lieu of the Transaction or from entering into a definitive\nagreement with respect thereto without prior notice to you or your Representatives.\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 4\n6. You agree that, for a period of 18 months from the date of this agreement, unless such shall have been specifically invited or approved in\nwriting by the Board of Directors of the Company, neither you nor any of your affiliates or Representatives will in any manner, directly or\nindirectly, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any\nother person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) an acquisition of any securities\n(or of beneficial ownership thereof) or a material amount of the assets of the Company; (ii) any tender or exchange offer, merger or other\nbusiness combination involving the Company or any of its subsidiaries; (iii) any recapitalization, restructuring, liquidation, dissolution or\nother extraordinary transaction with respect to the Company; or (iv) any “solicitation” of “proxies” (as such terms are used in the rules of\nthe Securities and Exchange Commission) or consents to vote any voting securities of the Company; (b) form, join or in any way\nparticipate in a “group” (as defined under the 1934 Act) with respect to any of the types of matters set forth in (a) above or (e) below;\n(c) take any action which might force the Company to make a public announcement regarding any of the types of matters set forth in\n(a) above or (e) below; (d) publicly request any amendment or waiver of any provision of this agreement; (e) otherwise act, alone or in\nconcert with others, to seek to control the management, Board of Directors or policies of the Company; or (f) enter into any discussions or\narrangements with any third party (other than your Representatives) with respect to any of the foregoing.\n7. You understand and acknowledge that none of the Company, Raymond James, their respective affiliates or and the respective\nRepresentatives of the foregoing is making any representation or warranty, express or implied, as to the accuracy or completeness of the\nEvaluation Material, and each of the Company, Raymond James, their affiliates and the respective Representatives of the foregoing shall\nhave no liability to you, any of your affiliates, any of your or your affiliates’ Representatives or any other person that may be based upon or\nrelate to (a) the use of the Evaluation Material by you, your affiliates, or any of the respective Representatives of the foregoing or (b) any\nerrors therein or omissions therefrom. Only those particular representations and warranties, if any, that are made in a detailed, executed,\nwritten definitive agreement in customary form with respect to the Transaction (the “Definitive Agreement”) when, as, and if it is executed,\nand subject to such limitations and restrictions as may be specified in such Definitive Agreement, will have any legal effect. Except for the\nobligations expressly set forth in this agreement or as may be set forth in a Definitive Agreement, neither you nor the Company nor any of\nthe respective Representatives of you and the Company shall have any obligation of any kind relating to or in connection with the\nTransaction or any similar transaction. For purposes of this paragraph, the term “Definitive Agreement” does not include an executed letter\nof intent or any other preliminary written agreement, nor does it include any written or oral acceptance of an offer or bid on your part. You\nunderstand and agree that you are aware, and your Representatives are aware, that, under certain circumstances, the federal and state\nsecurities laws prohibit any person who has material, non-public information about a company from purchasing or selling securities of such\na company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that the\nperson is likely to purchase or sell those securities.\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 5\n8. You hereby represent that, as of the date of this agreement, neither you nor any of your affiliates nor anyone acting on your behalf, has\nacquired record or beneficial ownership of any voting securities of the Company or of any securities convertible into or exchangeable for\nvoting securities of the Company.\n9. This agreement and all controversies arising from or relating to performance under this letter agreement shall be governed by and construed\nin accordance with the laws of the State of New York. Upon any breach or threatened breach of the provisions of this agreement, both\nparties shall be entitled to equitable relief, including in the form of injunctions and orders for specific performance, in addition to all other\nremedies available to the non-breaching party at law or in equity. You hereby irrevocably and unconditionally consent to submit to the\nexclusive jurisdiction of the state and federal courts located in the Borough of Manhattan in the State of New York for any actions, suits or\nproceedings arising out of or relating to this agreement and the transactions contemplated hereby, and further agree that service of any\nprocess, summons, notice or document by U.S . registered mail to your address set forth above shall be effective service of process for any\naction, suit or proceeding brought against you in any such court. You hereby irrevocably and unconditionally waive any objection to the\nlaying of venue of any action, suit or proceeding arising out of this agreement or the transactions contemplated hereby in the state and\nfederal courts located in the Borough of Manhattan in the State of New York, and hereby further irrevocably and unconditionally waive and\nagree not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an\ninconvenient forum.\n10. It is understood by the parties hereto that after you sign this agreement, the Company shall provide you with the actual name of the\nCompany. If you inform the Company within two (2) business days after learning the actual name of the Company (the “Waiting Period”)\nthat you will not pursue the Transaction, this agreement shall be terminated immediately, subject to paragraph 14 of this agreement, except\nwith regard to the eighteen (18) month term set forth in paragraph 14(c). The Company shall only provide you with further Evaluation\nMaterial after the earlier to occur of: (a) the termination of the Waiting Period and (b) notification from you that you will pursue the\nTransaction.\n11. Subject to your observance of the confidentiality obligations set forth herein, nothing in this agreement shall prevent you from evaluating a\npossible investment in and/or collaborating with, or entering into any transaction with (including an investment in), or monitoring,\nmanaging, maintaining or otherwise acting with respect to an investment in, a company whose business is similar to or competitive with the\nbusiness of the Company. The Company acknowledges that you deal with many companies, some of which may, independently of the\nCompany, pursue similar or competitive paths regarding their products or services, technology and/or market development plans to those\nwhich are or may be pursued by the Company. Although you are subject to the confidentiality obligations set forth in this agreement, the\noccurrence or existence of such similar or competitive activities shall not by itself be cause for any action or allegation by the Company\nthat you have failed to observe any of the confidentiality obligations set forth above.\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 6\n12. No past, present or future director, officer, employee, member, shareholder, incorporator, partner, and/or affiliate of yours or any affiliate\nthereof except to the extent any of the foregoing is a party to and bound by the terms of this agreement shall have any liability for your\nobligations under this agreement or for any claim based on, in respect of or by reason of such obligations or their creation.\n13. For the avoidance of doubt, in the event there is any conflict, inconsistency or additional obligation between this agreement and the terms\nand conditions of any electronic dataroom now or hereafter applicable to you or your Representatives, the terms and conditions of this\nagreement shall govern and constitute the terms and conditions with respect to the access of Evaluation Material by you or your\nRepresentatives in any electronic dataroom.\n14. (a) No failure or delay by the Company in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege\nhereunder. This agreement can only be modified or waived in writing.\n(b) The invalidity or unenforceability of any provision of this letter agreement shall not affect the validity or enforceability of any other\nprovisions of this agreement, which shall remain in full force and effect. This agreement contains the entire agreement between the\nCompany and you concerning the subject matter hereof and supersedes all previous agreements, written or oral, relating to the subject\nmatter hereof.\n(c) This agreement and all obligations hereunder shall expire and be of no further force and effect upon 18 months from the date hereof;\nprovided, however, that Sections 7, 9 and 14 shall survive the termination of this letter agreement.\n(d) This agreement shall be binding solely upon, inure to the benefit of, and be enforceable by, each party and its respective successors and\nassigns.\n(e) This agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together\nshall constitute one and the same instrument. This agreement or any counterpart may be executed and delivered by facsimile copies, each\nof which shall be deemed to be an original.\n[Signature page follows]\nCONFIDENTIAL\nProvidence Equity\nJune 23, 2015\nNon-Disclosure Agreement\nPage 7\nIf you agree with the foregoing, please sign both copies of this agreement and return one to me, which shall thereupon constitute our agreement\nwith respect to the subject matter of this letter.\nVery truly yours,\nBy /s/ Marc Sheinbaum\nName: Marc Sheinbaum\nTitle: CEO\nHigher One Holdings, Inc.\nCONFIRMED AND AGREED AS\nOF THE DATE WRITTEN ABOVE:\nProvidence Equity Partners L.L.C.\nBy:\n/s/ William S. Hughes\nName: William S. Hughes\nTitle:\nPrincipal
+2632c4c1238356489cab88d58e1a5fb0.pdf	effective_date jurisdiction party term	EX-10.18 17 dex1018.htm NON-COMPETITION/NON-SOLICITATION/NON-DISCLOSURE - JOHN HIGGINS\nExhibit 10.18\nLOGO\nNON-COMPETITION/NON-SOLICITATION/NON-DISCLOSURE AGREEMENT\nThis Agreement is made this 5 day of May, 2006 by and between InfrastruX Group (hereinafter the “Company”, a term which includes the\nCompany’s successors and assigns) and JOHN RANDELL HIGGINS (hereinafter “Employee”) as a condition of, and in consideration of,\nEmployees’s employment or continued employment by the Company. By the mutual promises and covenants made herein, the undersigned parties\nagree as follows:\n1. Provision of Benefits to Employee. Employee acknowledges that in the course of employment, Employee (a) will receive monetary\ncompensation; (b) may receive opportunities for advancement or reassignment that the Company may, from time to time, offer (c) will\nobtain valuable, continuing training; (d) may be introduced to the Company’s customers and/or prospective customers; (e) will be\nprovided with support and be permitted to utilize the Company’s goodwill and reputation in the performance of his or her duties; (f) will\nobtain and have access to the Company’s confidential, proprietary, customer, or trade secret information, including, but not limited to,\nnon-public information regarding the Company’s silicone fluid injection process; and (g) will have the use and enjoyment of the\nCompany’s materials, equipment, facilities and overall research and business endeavors in connection with the performance of his or her\nduties.\n2. No Outside Employment. Employee agrees to give the Company the exclusive benefit of Employee’s best skill and effort for the term\nof Employee’s employment with the Company. Employee agrees that for the term of Employee’s employment with the Company,\nEmployee will work exclusively for the Company and not hold employment outside of the Company except with the written\nauthorization of the Company’s President. In connection with this provision, Employee agrees not to sell outside products or services to\nthe Company’s employees or customers during the term of Employee’s employment with the Company.\n3. Non-Competition Covenant. Employee will not, during the term of Employee’s employment with the Company and for a period of one\n(1) year thereafter, in any manner, directly or indirectly, engage in, or have any equity or profit interests in, or render services of any\nexecutive, marketing, administrative, operations, supervisory, or consulting nature, whether with or without remuneration, to any\nbusiness or activity involved in the electric, gas, large bore directional drilling, environmental services, petrochemical\ntelecommunication, cable restoration/cable life extension, and/or cable replacement industry, if such business or activity is in competition\nor is preparing to be in completion with any business, research or endeavor of the Company. The scope of competitive activities\nprohibited by this Agreement shall be limited to those activities of the type conducted, authorized, offered, or provided by Employee to\nthe Company customers with whom the Employee had contact with during the course of Employee’s employment with the Company\nduring the twelve-month period prior to the date of termination of Employee’s employment with the Company, and involving products\nand/or technology similar to those handled, created, sold or distributed by the Company, and/or services of any executive, marketing,\nadministrative, operations, supervisory, or consulting nature similar to those provided by the Company during the twelve-month period\nprior to the date of termination of Employee’s employment with the Company.\n4. Inventions and Discoveries. Employee will promptly disclose in writing to the Company all ideas, inventions or discoveries related in\nany manner to the Company’s business and conceived by Employee or developed, in whole or in part, by Employee during working\nhours or on the property of the Company. Such ideas, inventions and discoveries will be the property of the Company, and the Company\nwill have the right to any patents, trademarks, or copyrights that may be issued with respect thereto. Employee hereby\nConfidential and Proprietary Property of InfrastruX Group.\n1\nth\nagrees to assign to the Company, or its nominee, all right, title and interest in such ideas, inventions, discoveries, patient, trademark and\ncopyright application, patents, trademarks and copyrights and assignments thereof, and will do such things as the Company may require\nto establish and protect its ownership and to effectuate the foregoing, either during Employee’s employment or thereafter. Excluded from\nthe operation of this provision are those ideas, inventions, and discoveries, patented and unpatented, of Employee’s that were made prior\nto Employee’s employment by the Company and that have been described in writing by Employee and acknowledged in writing by the\nPresident of the Company.\nNOTICE: Notwithstanding any other provision of this Agreement to the contrary, this Agreement does not obligate Employee to assign\nor offer to assign to the Company any of Employee’s rights in an invention for which no equipment, supplies, facilities or trade secret\ninformation of the Company was used and which was developed entirely on Employee’s own time, unless (a) the invention relates (i)\ndirectly to the business of the Company or (ii) to the Company’s actual or demonstrably anticipated research or development or (b) the\ninvention results from any work performed by Employee for the Company. This satisfies the written notice and other requirements of\nRCW 49.44.140.\n5. Nondisclosure; Confidentiality. During Employee’s employment with the Company and after such employment terminates, Employee\nwill treat as confidential and proprietary to the Company any Confidential information, whether in tangible or intangible form, received\nor acquired by Employee in the course of performance of Employee’s employment and relating to the business affairs, customers and\nprospective customers, finances, equipment, products, methods, processes, design and engineering data, know-how, or technology of the\nCompany. Employee will also comply with and be bound by all nondisclosure agreements by which the Company agrees or is obligated\nto protect confidential information for the benefit of any customer, client, or other third party.\n“Confidential Information” means information which is treated by the Company as confidential and which has not been made generally\navailable to the public or to competitors of the Company, and includes, but is not limited to: the Company’s pricing and marketing\nstrategies and characteristics; profit margins and other financial information; methods of operations and sales; sources of supplies;\ninformation regarding customers or prospective customers such as names, contact persons, needs and requirements, and contract renewal\ndates; technical information and-know-how; and any other information relating to the Company’s business that is treated by the\nCompany as confidential. For purposes of this Agreement, information shall not lose its character as confidential if it is known to the\npublic or to any competitor solely by virtue of unauthorized or bad faith disclosure or publication of the information.\n6. Residuals. The terms of confidentiality under this Agreement shall not be construed to limit Employee’s right to independently develop\nor acquire products without use of the Company’s Confidential Information provided such development or acquisition does not violate\nthis Agreement. However, Employee shall not be free to use for any purpose the residuals resulting from access to or work with the\nConfidential Information of the Company. The term “residuals” means (a) Confidential Information In intangible form that is retained in\nmemory by persons who have had access to the Confidential information, and (b) information in any form that is derived from or based\non employee’s access to Confidential information.\n7. Nonsolicitation of Customers. Employee agrees that for a period of one (1) year following the termination of Employee’s employment,\nEmployee shall not directly, or indirectly by assisting others, contact or do business with any customer or prospective customer of the\nCompany for purposes of providing products or services that are competitive with those provided, or being studied or developed, by the\nCompany. This covenant applies to those customers and the related entities of those customers to which the Company sold products or\nservices with whom the Employee had contact at any time during the twelve-month period prior to the date of termination of Employee’s\nemployment with the Company, and those prospective customers with whom the Employee had contact with which the Company\nactively pursued sates or the provision of services at any time during the twelve-month period prior to the date of termination of\nEmployee’s employment with the Company.\nConfidential and Proprietary Property of InfrastruX Group.\n2\n8. Nonsolicitation of Employees. Employee agrees that for a period of one (1) year following the termination of Employee’s employment,\nEmployee shall not directly, or indirectly by assisting others, recruit or hire, or attempt to recruit or hire any other employee or former\nemployee of the Company.\n9. Return of Property. Employee agrees to return all documents, records, notebooks, notes, memoranda, drawings or other documents,\nproperty, or tangible materials, and all copies thereof, that relate to the Company’s business and were made or compiled by Employee at\nany time or were in Employee’s possession in the course of or incident to Employee’s employment. Employee agrees that all such\nproperty, including any and all copies, is the property of the Company, held by Employee in trust solely for the benefit of the Company,\nand will be delivered to the Company upon termination of the Employee’s employment or at any other time upon request by the\nCompany. It is specifically agreed that any documents, card files, notebooks, rolodexes, or computer printouts containing confidential\ncustomer information are the property of the Company regardless of who prepared or assembled the information.\n10. Enforcement\nA. Reasonableness of Restrictions. Employee agrees and acknowledges that the above non-competition, non-solicitation, and non-\ndisclosure covenants are reasonable and necessary in that they protect the legitimate business interests of the Company, yet do not\nunreasonably impair Employee’s ability to earn a livelihood.\nB. Irreparable Harm; Injunctive Relief. Employee agrees and acknowledges that a violation by Employee of any of the covenants\ncontained herein will result in immediate and irreparable harm to the Company for which there is no adequate remedy at law. Employee hereby\nagrees that the Company will be entitled, in addition to any remedies it might have under this Agreement or at law, to injunctive and other\nequitable relief to prevent or curtail any threatened or actual breach of this Agreement.\nC. Extension of Covenants. During any breach of the provisions of this Agreement, the period of restraint set forth therein shall be\nautomatically tolled and suspended for the amount of time that the violation continues.\nD. Survival of Covenants. The obligations of Employee pursuant to Sections 3 – 9 of this Agreement shall survive the termination of\nthis Agreement and of Employee’s employment with the Company.\nE. Attorneys’ Fees. Employee agrees to pay the Company any attorney’s fees and costs which the Company incurs in enforcing, to any\nextent, the provisions of this Agreement, whether or not litigation is actually commenced and including any appeal.\nF. Choice of Law; Jurisdiction and Venue. This Agreement will be governed by the laws of the State of Washington to the maximum\nextent permissible under law. Employee irrevocably consents to the jurisdiction and venue of the federal and state courts located at King\nCounty, Washington with respect to any dispute arising out of or in connection with this Agreement, and agrees not to commence or prosecute\nany action or proceeding arising out of or related to this Agreement other than in the aforementioned courts.\n11. Judicial Modification. The parties agree that, if any portion of this Agreement, including any restrictions herein, is held in any legal\nproceeding to be invalid or unenforceable, the remaining portions of this Agreement, including any restrictions herein, will remain in full\nforce and effect. If any such invalidity or unenforceability is due to the unreasonableness of any particular portion or restriction, such\nportion or restriction shall be interpreted and enforced to the maximum extent permissible by law.\n12. Construction of Agreement.\nA. No Employment Rights. This Agreement does not grant or extend to Employee any rights to employment by the Company. The\nEmployee remains an employee at will, meaning that either Employer or the Company may terminate the employment of Employee,\nwith cause or without cause and with or without notice. This Agreement shall survive the termination of the employment of Employee\nand the terms and provisions of this Agreement shall remain enforceable in accordance with its terms.\nConfidential and Proprietary Property of InfrastruX Group.\n3\nB. Other Claims and Defenses. The parties agree that the existence of any claims, defenses of obligations between the parties not\ndescribed the in Agreement shall not affect the enforceability of this Agreement or the remedies thereunder.\nC. Successors and Assigns. The parties agree that this Agreement shall be automatically assigned to any successor of the Company,\nunless specifically provided otherwise in a writing executed by the President of the Company.\nD. Entire Understanding; Modification. This Agreement contains the entire understanding between the parties only as to the subjects\nset forth herein, and supersedes any prior understandings and agreements, written or oral, among them respecting the subject matter\nherein. This Agreement may not be modified, except by a writing signed by Employee and the President of the Company.\n13. Employee’s Representation Regarding Other Agreements. Employee represents and warrants that he/she is not a party to or\notherwise subject to or bound by the terms of any contract, agreement or understanding which in an manner would limit or otherwise\naffect his/her ability to perform his/her duties as an employee of the Company, including without limitation any contract, agreement or\nunderstanding containing terms and provisions similar in any manner to those contained in Section 3 of this Agreement. Employee\nfurther represents and warrants that his/her employment with the Company will not require him/her to disclose or use any confidential\ninformation belonging to prior employers or other persons, or entities.\n14. Certificate of Understanding. Employee certifies that Employee received a copy of this Agreement for review and study before being\nasked to sign it; read this Agreement carefully; had sufficient opportunity to discuss the Agreement with the attorney or counselor of\nEmployee’s choice; understands Employee’s obligations under the Agreement; and signs this Agreement freely and voluntarily, and\nwithout any coercion from any person.\nEmployee\nCompany\nSignature:\n/s/ John R. Higgins\nSignature:\n/s/ Richard Schwartz\nPrint Name: John R. Higgins\nPrint Name: Richard Schwartz\nDate:\n5/5/2006\nTitle:\nCOO\nDate:\n5/5/2006\nConfidential and Proprietary Property of InfrastruX Group.\n4	EX-10.18 17 dex1018.htm NON-COMPETITION/NON-SOLICITATION/NON-DISCLOSURE - JOHN HIGGINS Exhibit 10.18\n».LOGO\nNON-COMPETITION/NON-SOLICITATION/NON-DISCLOSURE AGREEMENT\nThis Agreement is made this 5 day of May, 2006 by and between InfrastruX Group (hereinafter the “Company”, a term which includes the Company’s successors and assigns) and JOHN RANDELL HIGGINS (hereinafter “Employee”) as a condition of, and in consideration of, Employees’s employment or continued employment by the Company. By the mutual promises and covenants made herein, the undersigned parties agree as follows: 1. Provision of Benefits to Employee. Employee acknowledges that in the course of employment, Employee (a) will receive monetary\ncompensation; (b) may receive opportunities for advancement or reassignment that the Company may, from time to time, offer (c) will\nobtain valuable, continuing training; (d) may be introduced to the Company’s customers and/or prospective customers; (e) will be\nprovided with support and be permitted to utilize the Company’s goodwill and reputation in the performance of his or her duties; (f) will\nobtain and have access to the Company’s confidential, proprietary, customer, or trade secret information, including, but not limited to,\nnon-public information regarding the Company’s silicone fluid injection process; and (g) will have the use and enjoyment of the\nCompany’s materials, equipment, facilities and overall research and business endeavors in connection with the performance of his or her\nduties.\nNo Outside Employment. Employee agrees to give the Company the exclusive benefit of Employee’s best skill and effort for the term\nof Employee’s employment with the Company. Employee agrees that for the term of Employee’s employment with the Company,\nEmployee will work exclusively for the Company and not hold employment outside of the Company except with the written\nauthorization of the Company’s President. In connection with this provision, Employee agrees not to sell outside products or services to\nthe Company’s employees or customers during the term of Employee’s employment with the Company.\nNon-Competition Covenant. Employee will not, during the term of Employee’s employment with the Company and for a period of one\n(1) year thereafter, in any manner, directly or indirectly, engage in, or have any equity or profit interests in, or render services of any\nexecutive, marketing, administrative, operations, supervisory, or consulting nature, whether with or without remuneration, to any\nbusiness or activity involved in the electric, gas, large bore directional drilling, environmental services, petrochemical\ntelecommunication, cable restoration/cable life extension, and/or cable replacement industry, if such business or activity is in competition\nor is preparing to be in completion with any business, research or endeavor of the Company. The scope of competitive activities\nprohibited by this Agreement shall be limited to those activities of the type conducted, authorized, offered, or provided by Employee to\nthe Company customers with whom the Employee had contact with during the course of Employee’s employment with the Company\nduring the twelve-month period prior to the date of termination of Employee’s employment with the Company, and involving products\nand/or technology similar to those handled, created, sold or distributed by the Company, and/or services of any executive, marketing,\nadministrative, operations, supervisory, or consulting nature similar to those provided by the Company during the twelve-month period\nprior to the date of termination of Employee’s employment with the Company.\nInventions and Discoveries. Employee will promptly disclose in writing to the Company all ideas, inventions or discoveries related in\nany manner to the Company’s business and conceived by Employee or developed, in whole or in part, by Employee during working\nhours or on the property of the Company. Such ideas, inventions and discoveries will be the property of the Company, and the Company\nwill have the right to any patents, trademarks, or copyrights that may be issued with respect thereto. Employee hereby\nConfidential and Proprietary Property of InfrastruX Group.\n1\nagrees to assign to the Company, or its nominee, all right, title and interest in such ideas, inventions, discoveries, patient, trademark and\ncopyright application, patents, trademarks and copyrights and assignments thereof, and will do such things as the Company may require\nto establish and protect its ownership and to effectuate the foregoing, either during Employee’s employment or thereafter. Excluded from\nthe operation of this provision are those ideas, inventions, and discoveries, patented and unpatented, of Employee’s that were made prior\nto Employee’s employment by the Company and that have been described in writing by Employee and acknowledged in writing by the\nPresident of the Company.\nNOTICE: Notwithstanding any other provision of this Agreement to the contrary, this Agreement does not obligate Employee to assign\nor offer to assign to the Company any of Employee’s rights in an invention for which no equipment, supplies, facilities or trade secret\ninformation of the Company was used and which was developed entirely on Employee’s own time, unless (a) the invention relates (i)\ndirectly to the business of the Company or (ii) to the Company’s actual or demonstrably anticipated research or development or (b) the\ninvention results from any work performed by Employee for the Company. This satisfies the written notice and other requirements of\nRCW 49.44.140.\nNondisclosure; Confidentiality. During Employee’s employment with the Company and after such employment terminates, Employee\nwill treat as confidential and proprietary to the Company any Confidential information, whether in tangible or intangible form, received\nor acquired by Employee in the course of performance of Employee’s employment and relating to the business affairs, customers and\nprospective customers, finances, equipment, products, methods, processes, design and engineering data, know-how, or technology of the\nCompany. Employee will also comply with and be bound by all nondisclosure agreements by which the Company agrees or is obligated\nto protect confidential information for the benefit of any customer, client, or other third party.\n“Confidential Information” means information which is treated by the Company as confidential and which has not been made generally\navailable to the public or to competitors of the Company, and includes, but is not limited to: the Company’s pricing and marketing\nstrategies and characteristics; profit margins and other financial information; methods of operations and sales; sources of supplies;\ninformation regarding customers or prospective customers such as names, contact persons, needs and requirements, and contract renewal\ndates; technical information and-know-how; and any other information relating to the Company’s business that is treated by the\nCompany as confidential. For purposes of this Agreement, information shall not lose its character as confidential if it is known to the\npublic or to any competitor solely by virtue of unauthorized or bad faith disclosure or publication of the information.\nResiduals. The terms of confidentiality under this Agreement shall not be construed to limit Employee’s right to independently develop\nor acquire products without use of the Company’s Confidential Information provided such development or acquisition does not violate\nthis Agreement. However, Employee shall not be free to use for any purpose the residuals resulting from access to or work with the\nConfidential Information of the Company. The term “residuals” means (a) Confidential Information In intangible form that is retained in\nmemory by persons who have had access to the Confidential information, and (b) information in any form that is derived from or based\non employee’s access to Confidential information.\nNonsolicitation of Customers. Employee agrees that for a period of one (1) year following the termination of Employee’s employment,\nEmployee shall not directly, or indirectly by assisting others, contact or do business with any customer or prospective customer of the\nCompany for purposes of providing products or services that are competitive with those provided, or being studied or developed, by the\nCompany. This covenant applies to those customers and the related entities of those customers to which the Company sold products or\nservices with whom the Employee had contact at any time during the twelve-month period prior to the date of termination of Employee’s\nemployment with the Company, and those prospective customers with whom the Employee had contact with which the Company\nactively pursued sates or the provision of services at any time during the twelve-month period prior to the date of termination of\nEmployee’s employment with the Company.\nConfidential and Proprietary Property of InfrastruX Group.\n2\n8. Nonsolicitation of Employees. Employee agrees that for a period of one (1) year following the termination of Employee’s employment,\nEmployee shall not directly, or indirectly by assisting others, recruit or hire, or attempt to recruit or hire any other employee or former\nemployee of the Company.\n9.  Return of Property. Employee agrees to return all documents, records, notebooks, notes, memoranda, drawings or other documents,\nproperty, or tangible materials, and all copies thereof, that relate to the Company’s business and were made or compiled by Employee at\nany time or were in Employee’s possession in the course of or incident to Employee’s employment. Employee agrees that all such\nproperty, including any and all copies, is the property of the Company, held by Employee in trust solely for the benefit of the Company,\nand will be delivered to the Company upon termination of the Employee’s employment or at any other time upon request by the\nCompany. It is specifically agreed that any documents, card files, notebooks, rolodexes, or computer printouts containing confidential\ncustomer information are the property of the Company regardless of who prepared or assembled the information.\n10. Enforcement\nA. Reasonableness of Restrictions. Employee agrees and acknowledges that the above non-competition, non-solicitation, and non-\ndisclosure covenants are reasonable and necessary in that they protect the legitimate business interests of the Company, yet do not\nunreasonably impair Employee’s ability to earn a livelihood.\nB. Irreparable Harm; Injunctive Relief. Employee agrees and acknowledges that a violation by Employee of any of the covenants\ncontained herein will result in immediate and irreparable harm to the Company for which there is no adequate remedy at law. Employee hereby\nagrees that the Company will be entitled, in addition to any remedies it might have under this Agreement or at law, to injunctive and other\nequitable relief to prevent or curtail any threatened or actual breach of this Agreement.\nC. Extension of Covenants. During any breach of the provisions of this Agreement, the period of restraint set forth therein shall be\nautomatically tolled and suspended for the amount of time that the violation continues.\nD. Survival of Covenants. The obligations of Employee pursuant to Sections 3 — 9 of this Agreement shall survive the termination of\nthis Agreement and of Employee’s employment with the Company.\nE. Attorneys’ Fees. Employee agrees to pay the Company any attorney’s fees and costs which the Company incurs in enforcing, to any\nextent, the provisions of this Agreement, whether or not litigation is actually commenced and including any appeal.\nF. Choice of Law; Jurisdiction and Venue. This Agreement will be governed by the laws of the State of Washington to the maximum\nextent permissible under law. Employee irrevocably consents to the jurisdiction and venue of the federal and state courts located at King\nCounty, Washington with respect to any dispute arising out of or in connection with this Agreement, and agrees not to commence or prosecute\nany action or proceeding arising out of or related to this Agreement other than in the aforementioned courts.\n11. Judicial Modification. The parties agree that, if any portion of this Agreement, including any restrictions herein, is held in any legal\nproceeding to be invalid or unenforceable, the remaining portions of this Agreement, including any restrictions herein, will remain in full\nforce and effect. If any such invalidity or unenforceability is due to the unreasonableness of any particular portion or restriction, such\nportion or restriction shall be interpreted and enforced to the maximum extent permissible by law.\n12. Construction of Agreement.\nA. No Employment Rights. This Agreement does not grant or extend to Employee any rights to employment by the Company. The\nEmployee remains an employee at will, meaning that either Employer or the Company may terminate the employment of Employee,\nwith cause or without cause and with or without notice. This Agreement shall survive the termination of the employment of Employee\nand the terms and provisions of this Agreement shall remain enforceable in accordance with its terms.\nConfidential and Proprietary Property of InfrastruX Group.\n3\n13. 14. B. Other Claims and Defenses. The parties agree that the existence of any claims, defenses of obligations between the parties not\ndescribed the in Agreement shall not affect the enforceability of this Agreement or the remedies thereunder.\nC. Successors and Assigns. The parties agree that this Agreement shall be automatically assigned to any successor of the Company,\nunless specifically provided otherwise in a writing executed by the President of the Company.\nD. Entire Understanding; Modification. This Agreement contains the entire understanding between the parties only as to the subjects\nset forth herein, and supersedes any prior understandings and agreements, written or oral, among them respecting the subject matter\nherein. This Agreement may not be modified, except by a writing signed by Employee and the President of the Company.\nEmployee’s Representation Regarding Other Agreements. Employee represents and warrants that he/she is not a party to or\notherwise subject to or bound by the terms of any contract, agreement or understanding which in an manner would limit or otherwise\naffect his/her ability to perform his/her duties as an employee of the Company, including without limitation any contract, agreement or\nunderstanding containing terms and provisions similar in any manner to those contained in Section 3 of this Agreement. Employee\nfurther represents and warrants that his/her employment with the Company will not require him/her to disclose or use any confidential\ninformation belonging to prior employers or other persons, or entities.\nCertificate of Understanding. Employee certifies that Employee received a copy of this Agreement for review and study before being\nasked to sign it; read this Agreement carefully; had sufficient opportunity to discuss the Agreement with the attorney or counselor of\nEmployee’s choice; understands Employee’s obligations under the Agreement; and signs this Agreement freely and voluntarily, and\nwithout any coercion from any person.\nEmployee Company\nSignature: /s/ John R. Higgins Signature: /s/ Richard Schwartz\nPrint Name: John R. Higgins Print Name: Richard Schwartz\nDate: 5/5/2006 Title: COO\nDate: 5/5/2006\nConfidential and Proprietary Property of InfrastruX Group.\n4	EX-10.18 17 dex 1018.htm NONCOMPETITIONNON-SOLICITATIONNON-DISCLOSURE JOHN HIGGINS\nExhibit 10.18\nLogo\nNON COMPETITIONNON-SOLICITATONNON-DISCLOSUREA AGREEMENT\nThis Agreement is made this 5th day of May, 2006 by and between InfrastruX Group (hereinafter the "Company", a term which includes the\nCompany's successors and assigns) and JOHN RANDELL HIGGINS (hereinafter "Employee") as a condition of, and in consideration of,\nEmployees's employment or continued employment by the Company. By the mutual promises and covenants made herein, the undersigned parties\nagree as follows:\n1.\nProvision of Benefits to Employee. Employee acknowledges that in the course of employment, Employee (a) will receive monetary\ncompensation; (b) may receive opportunities for advancement or reassignment that the Company may, from time to time, offer (c) will\nobtain valuable, continuing training; (d) may be introduced to the Company's customers and/or prospective customers; (e) will be\nprovided with support and be permitted to utilize the Company's goodwill and reputation in the performance of his or her duties; (f) will\nobtain and have access to the Company's confidential, proprietary, customer, or trade secret information, including, but not limited to,\nnon-public information regarding the Company's silicone fluid injection process; and (g) will have the use and enjoyment of the\nCompany's materials, equipment, facilities and overall research and business endeavors in connection with the performance of his or her\nduties.\n2.\nNo Outside Employment. Employee agrees to give the Company the exclusive benefit of Employee's best skill and effort for the term\nof Employee's employment with the Company. Employee agrees that for the term of Employee's employment with the Company,\nEmployee will work exclusively for the Company and not hold employment outside of the Company except with the written\nauthorization of the Company's President. In connection with this provision, Employee agrees not to sell outside products or services\nto\nthe Company's employees or customers during the term of Employee's employment with the Company.\n3.\nNon-Competition Covenant. Employee will not, during the term of Employee's employment with the Company and for a period of one\n(1) year thereafter, in any manner, directly or indirectly, engage in, or have any equity or profit interests in, or render services of any\nexecutive, marketing, administrative, operations, supervisory, or consulting nature, whether with or without remuneration, to any\nbusiness or activity involved in the electric, gas, large bore directional drilling, environmental services, petrochemical\ntelecommunication, cable restoration/cable life extension, and/or cable replacement industry, if such business or activity is in competition\nor is preparing to be in completion with any business, research or endeavor of the Company. The scope of competitive activities\nprohibited by this Agreement shall be limited to those activities of the type conducted, authorized, offered, or provided by Employee to\nthe Company customers with whom the Employee had contact with during the course of Employee's employment with the Company\nduring the twelve-month period prior to the date of termination of Employee's employment with the Company, and involving products\nand/or technology similar to those handled, created, sold or distributed by the Company, and/or services of any executive, marketing,\nadministrative, operations, supervisory, or consulting nature similar to those provided by the Company during the twelve-month period\nprior to the date of termination of Employee's employment with the Company.\n4.\nInventions and Discoveries. Employee will promptly disclose in writing to the Company all ideas, inventions or discoveries related in\nany manner to the Company's business and conceived by Employee or developed, in whole or in part, by Employee during working\nhours or on the property of the Company. Such ideas, inventions and discoveries will be the property of the Company, and the Company\nwill have the right to any patents, trademarks, or copyrights that may be issued with respect thereto. Employee hereby\nConfidential and Proprietary Property of InfrastruX Group.\n1\nagrees to assign to the Company, or its nominee, all right, title and interest in such ideas, inventions, discoveries, patient, trademark and\ncopyright application, patents, trademarks and copyrights and assignments thereof, and will do such things as the Company may require\nto establish and protect its ownership and to effectuate the foregoing, either during Employee's employment or thereafter. Excluded from\nthe operation of this provision are those ideas, inventions, and discoveries, patented and unpatented, of Employee's that were made prior\nto\nEmployee's employment by the Company and that have been described in writing by Employee and acknowledged in writing by the\nPresident of the Company.\nNOTICE: Notwithstanding any other provision of this Agreement to the contrary, this Agreement does not obligate Employee to assign\nor offer to assign to the Company any of Employee's rights in an invention for which no equipment, supplies, facilities or trade secret\ninformation of the Company was used and which was developed entirely on Employee's own time, unless (a) the invention relates (i)\ndirectly to the business of the Company or (ii) to the Company's actual or demonstrably anticipated research or development or (b) the\ninvention results from any work performed by Employee for the Company. This satisfies the written notice and other requirements of\nRCW 49.44.140.\n5.\nNondisclosure; Confidentiality. During Employee's employment with the Company and after such employment terminates, Employee\nwill treat as confidential and proprietary to the Company any Confidential information, whether in tangible or intangible form, received\nor acquired by Employee in the course of performance of Employee's employment and relating to the business affairs, customers and\nprospective customers, finances, equipment, products, methods, processes, design and engineering data, know-how, or technology of the\nCompany. Employee will also comply with and be bound by all nondisclosure agreements by which the Company agrees or is obligated\nto protect confidential information for the benefit of any customer, client, or other third party.\n"Confidential Information" means information which is treated by the Company as confidential and which has not been made generally\navailable to the public or to competitors of the Company, and includes, but is not limited to: the Company's pricing and marketing\nstrategies and characteristics; profit margins and other financial information; methods of operations and sales; sources of supplies;\ninformation regarding customers or prospective customers such as names, contact persons, needs and requirements, and contract renewal\ndates; technical information and-know-how; and any other information relating to the Company's business that is treated by the\nCompany as confidential For purposes of this Agreement, information shall not lose its character as confidential if it is known to the\npublic or to any competitor solely by virtue of unauthorized or bad faith disclosure or publication of the information.\n6.\nResiduals. The terms of confidentiality under this Agreement shall not be construed to limit Employee's right to independently develop\nor acquire products without use of the Company's Confidential Information provided such development or acquisition does not violate\nthis Agreement. However, Employee shall not be free to use for any purpose the residuals resulting from access to or work with the\nConfidential Information of the Company. The term "residuals" means (a) Confidential Information In intangible form that is retained in\nmemory by persons who have had access to the Confidential information, and (b) information in any form that is derived from or based\non employee's access to Confidential information.\n7.\nNonsolicitation of Customers. Employee agrees that for a period of one (1) year following the termination of Employee's employment,\nEmployee shall not directly, or indirectly by assisting others, contact or do business with any customer or prospective customer of the\nCompany for purposes of providing products or services that are competitive with those provided, or being studied or developed, by the\nCompany. This covenant applies to those customers and the related entities of those customers to which the Company sold products or\nservices with whom the Employee had contact at any time during the twelve-month period prior to the date of termination of Employee's\nemployment with the Company, and those prospective customers with whom the Employee had contact with which the Company\nactively pursued sates or the provision of services at any time during the twelve-month period prior to the date of termination of\nEmployee's employment with the Company.\nConfidential and Proprietary Property of InfrastruX Group.\n2\n8. Nonsolicitation of Employees. Employee agrees that for a period of one (1) year following the termination of Employee's employment,\nEmployee shall not directly, or indirectly by assisting others, recruit or hire, or attempt to recruit or hire any other employee or former\nemployee of the Company.\n9.\nReturn of Property. Employee agrees to return all documents, records, notebooks, notes, memoranda, drawings or other documents,\nproperty, or tangible materials, and all copies thereof, that relate to the Company's business and were made or compiled by Employee\nat\nany time or were in Employee's possession in the course of or incident to Employee's employment. Employee agrees that all such\nproperty, including any and all copies, is the property of the Company, held by Employee in trust solely for the benefit of the Company,\nand will be delivered to the Company upon termination of the Employee's employment or at any other time upon request by the\nCompany. It is specifically agreed that any documents, card files, notebooks, rolodexes, or computer printouts containing confidential\ncustomer information are the property of the Company regardless of who prepared or assembled the information.\n10. Enforcement\nA. Reasonableness of Restrictions. Employee agrees and acknowledges that the above non-competition, non-solicitation, and non-\ndisclosure covenants are reasonable and necessary in that they protect the legitimate business interests of the Company, yet do not\nunreasonably impair Employee's ability to earn a livelihood.\nB. Irreparable Harm; Injunctive Relief. Employee agrees and acknowledges that a violation by Employee of any of the covenants\ncontained herein will result in immediate and irreparable harm to the Company for which there is no adequate remedy at law. Employee hereby\nagrees that the Company will be entitled, in addition to any remedies it might have under this Agreement or at law, to injunctive and other\nequitable relief to prevent or curtail any threatened or actual breach of this Agreement.\nC. Extension of Covenants. During any breach of the provisions of this Agreement, the period of restraint set forth therein shall be\nautomatically tolled and suspended for the amount of time that the violation continues.\nD. Survival of Covenants. The obligations of Employee pursuant to Sections 3 9 of this Agreement shall survive the termination of\nthis Agreement and of Employee's employment with the Company.\nE. Attorneys' Fees. Employee agrees to pay the Company any attorney's fees and costs which the Company incurs in enforcing, to any\nextent, the provisions of this Agreement, whether or not litigation is actually commenced and including any appeal.\nF. Choice of Law; Jurisdiction and Venue. This Agreement will be governed by the laws of the State of Washington to the maximum\nextent permissible under law. Employee irrevocably consents to the jurisdiction and venue of the federal and state courts located at King\nCounty, Washington with respect to any dispute arising out of or in connection with this Agreement, and agrees not to commence or prosecute\nany action or proceeding arising out of or related to this Agreement other than in the aforementioned courts.\n11. Judicial Modification. The parties agree that, if any portion of this Agreement, including any restrictions herein, is held in any legal\nproceeding to be invalid or unenforceable, the remaining portions of this Agreement, including any restrictions herein, will remain in full\nforce and effect. If any such invalidity or unenforceability is due to the unreasonableness of any particular portion or restriction, such\nportion or restriction shall be interpreted and enforced to the maximum extent permissible by law.\n12. Construction of Agreement.\nA. No Employment Rights. This Agreement does not grant or extend to Employee any rights to employment by the Company. The\nEmployee remains an employee at will, meaning that either Employer or the Company may terminate the employment of Employee,\nwith cause or without cause and with or without notice. This Agreement shall survive the termination of the employment of Employee\nand the terms and provisions of this Agreement shall remain enforceable in accordance with its terms.\nConfidential and Proprietary Property of InfrastruX Group.\n3\nB. Other Claims and Defenses. The parties agree that the existence of any claims, defenses of obligations between the parties not\ndescribed the in Agreement shall not affect the enforceability of this Agreement or the remedies thereunder.\nC. Successors and Assigns. The parties agree that this Agreement shall be automatically assigned to any successor of the Company,\nunless specifically provided otherwise in a writing executed by the President of the Company.\nD. Entire Understanding; Modification. This Agreement contains the entire understanding between the parties only as to the subjects\nset forth herein, and supersedes any prior understandings and agreements, written or oral, among them respecting the subject matter\nherein. This Agreement may not be modified, except by a writing signed by Employee and the President of the Company.\n13. Employee's Representation Regarding Other Agreements. Employee represents and warrants that he/she is not a party to or\notherwise subject to or bound by the terms of any contract, agreement or understanding which in an manner would limit or otherwise\naffect his/her ability to perform his/her duties as an employee of the Company, including without limitation any contract, agreement or\nunderstanding containing terms and provisions similar in any manner to those contained in Section 3 of this Agreement. Employee\nfurther represents and warrants that his/her employment with the Company will not require him/her to disclose or use any confidential\ninformation belonging to prior employers or other persons, or entities.\n14. Certificate of Understanding. Employee certifies that Employee received a copy of this Agreement for review and study before being\nasked to sign it; read this Agreement carefully; had sufficient opportunity to discuss the Agreement with the attorney or counselor of\nEmployee's choice; understands Employee's obligations under the Agreement; and signs this Agreement freely and voluntarily, and\nwithout any coercion from any person.\nEmployee\nCompany\nSignature:\n/s/ John R. Higgins\nSignature:\n/s/ Richard Schwartz\nPrint Name:\nJohn R. Higgins\nPrint Name:\nRichard Schwartz\nDate:\n5/5/2006\nTitle:\nCOO\nDate:\n5/5/2006\nConfidential and Proprietary Property of InfrastruX Group.\n4	EX-10.18 17 dex1018.htm NON-COMPETITION/NON-SOLICITATION/NON-DISCLOSURE - JOHN HIGGINS\nExhibit 10.18\nLOGO\nNON-COMPETITION/NON-SOLICITATION/NON-DISCLOSURE AGREEMENT\nThis Agreement is made this 5 day of May, 2006 by and between InfrastruX Group (hereinafter the “Company”, a term which includes the\nCompany’s successors and assigns) and JOHN RANDELL HIGGINS (hereinafter “Employee”) as a condition of, and in consideration of,\nEmployees’s employment or continued employment by the Company. By the mutual promises and covenants made herein, the undersigned parties\nagree as follows:\n1. Provision of Benefits to Employee. Employee acknowledges that in the course of employment, Employee (a) will receive monetary\ncompensation; (b) may receive opportunities for advancement or reassignment that the Company may, from time to time, offer (c) will\nobtain valuable, continuing training; (d) may be introduced to the Company’s customers and/or prospective customers; (e) will be\nprovided with support and be permitted to utilize the Company’s goodwill and reputation in the performance of his or her duties; (f) will\nobtain and have access to the Company’s confidential, proprietary, customer, or trade secret information, including, but not limited to,\nnon-public information regarding the Company’s silicone fluid injection process; and (g) will have the use and enjoyment of the\nCompany’s materials, equipment, facilities and overall research and business endeavors in connection with the performance of his or her\nduties.\n2. No Outside Employment. Employee agrees to give the Company the exclusive benefit of Employee’s best skill and effort for the term\nof Employee’s employment with the Company. Employee agrees that for the term of Employee’s employment with the Company,\nEmployee will work exclusively for the Company and not hold employment outside of the Company except with the written\nauthorization of the Company’s President. In connection with this provision, Employee agrees not to sell outside products or services to\nthe Company’s employees or customers during the term of Employee’s employment with the Company.\n3. Non-Competition Covenant. Employee will not, during the term of Employee’s employment with the Company and for a period of one\n(1) year thereafter, in any manner, directly or indirectly, engage in, or have any equity or profit interests in, or render services of any\nexecutive, marketing, administrative, operations, supervisory, or consulting nature, whether with or without remuneration, to any\nbusiness or activity involved in the electric, gas, large bore directional drilling, environmental services, petrochemical\ntelecommunication, cable restoration/cable life extension, and/or cable replacement industry, if such business or activity is in competition\nor is preparing to be in completion with any business, research or endeavor of the Company. The scope of competitive activities\nprohibited by this Agreement shall be limited to those activities of the type conducted, authorized, offered, or provided by Employee to\nthe Company customers with whom the Employee had contact with during the course of Employee’s employment with the Company\nduring the twelve-month period prior to the date of termination of Employee’s employment with the Company, and involving products\nand/or technology similar to those handled, created, sold or distributed by the Company, and/or services of any executive, marketing,\nadministrative, operations, supervisory, or consulting nature similar to those provided by the Company during the twelve-month period\nprior to the date of termination of Employee’s employment with the Company.\n4. Inventions and Discoveries. Employee will promptly disclose in writing to the Company all ideas, inventions or discoveries related in\nany manner to the Company’s business and conceived by Employee or developed, in whole or in part, by Employee during working\nhours or on the property of the Company. Such ideas, inventions and discoveries will be the property of the Company, and the Company\nwill have the right to any patents, trademarks, or copyrights that may be issued with respect thereto. Employee hereby\nConfidential and Proprietary Property of InfrastruX Group.\n1\nth\nagrees to assign to the Company, or its nominee, all right, title and interest in such ideas, inventions, discoveries, patient, trademark and\ncopyright application, patents, trademarks and copyrights and assignments thereof, and will do such things as the Company may require\nto establish and protect its ownership and to effectuate the foregoing, either during Employee’s employment or thereafter. Excluded from\nthe operation of this provision are those ideas, inventions, and discoveries, patented and unpatented, of Employee’s that were made prior\nto Employee’s employment by the Company and that have been described in writing by Employee and acknowledged in writing by the\nPresident of the Company.\nNOTICE: Notwithstanding any other provision of this Agreement to the contrary, this Agreement does not obligate Employee to assign\nor offer to assign to the Company any of Employee’s rights in an invention for which no equipment, supplies, facilities or trade secret\ninformation of the Company was used and which was developed entirely on Employee’s own time, unless (a) the invention relates (i)\ndirectly to the business of the Company or (ii) to the Company’s actual or demonstrably anticipated research or development or (b) the\ninvention results from any work performed by Employee for the Company. This satisfies the written notice and other requirements of\nRCW 49.44.140.\n5. Nondisclosure; Confidentiality. During Employee’s employment with the Company and after such employment terminates, Employee\nwill treat as confidential and proprietary to the Company any Confidential information, whether in tangible or intangible form, received\nor acquired by Employee in the course of performance of Employee’s employment and relating to the business affairs, customers and\nprospective customers, finances, equipment, products, methods, processes, design and engineering data, know-how, or technology of the\nCompany. Employee will also comply with and be bound by all nondisclosure agreements by which the Company agrees or is obligated\nto protect confidential information for the benefit of any customer, client, or other third party.\n“Confidential Information” means information which is treated by the Company as confidential and which has not been made generally\navailable to the public or to competitors of the Company, and includes, but is not limited to: the Company’s pricing and marketing\nstrategies and characteristics; profit margins and other financial information; methods of operations and sales; sources of supplies;\ninformation regarding customers or prospective customers such as names, contact persons, needs and requirements, and contract renewal\ndates; technical information and-know-how; and any other information relating to the Company’s business that is treated by the\nCompany as confidential. For purposes of this Agreement, information shall not lose its character as confidential if it is known to the\npublic or to any competitor solely by virtue of unauthorized or bad faith disclosure or publication of the information.\n6. Residuals. The terms of confidentiality under this Agreement shall not be construed to limit Employee’s right to independently develop\nor acquire products without use of the Company’s Confidential Information provided such development or acquisition does not violate\nthis Agreement. However, Employee shall not be free to use for any purpose the residuals resulting from access to or work with the\nConfidential Information of the Company. The term “residuals” means (a) Confidential Information In intangible form that is retained in\nmemory by persons who have had access to the Confidential information, and (b) information in any form that is derived from or based\non employee’s access to Confidential information.\n7. Nonsolicitation of Customers. Employee agrees that for a period of one (1) year following the termination of Employee’s employment,\nEmployee shall not directly, or indirectly by assisting others, contact or do business with any customer or prospective customer of the\nCompany for purposes of providing products or services that are competitive with those provided, or being studied or developed, by the\nCompany. This covenant applies to those customers and the related entities of those customers to which the Company sold products or\nservices with whom the Employee had contact at any time during the twelve-month period prior to the date of termination of Employee’s\nemployment with the Company, and those prospective customers with whom the Employee had contact with which the Company\nactively pursued sates or the provision of services at any time during the twelve-month period prior to the date of termination of\nEmployee’s employment with the Company.\nConfidential and Proprietary Property of InfrastruX Group.\n2\n8. Nonsolicitation of Employees. Employee agrees that for a period of one (1) year following the termination of Employee’s employment,\nEmployee shall not directly, or indirectly by assisting others, recruit or hire, or attempt to recruit or hire any other employee or former\nemployee of the Company.\n9. Return of Property. Employee agrees to return all documents, records, notebooks, notes, memoranda, drawings or other documents,\nproperty, or tangible materials, and all copies thereof, that relate to the Company’s business and were made or compiled by Employee at\nany time or were in Employee’s possession in the course of or incident to Employee’s employment. Employee agrees that all such\nproperty, including any and all copies, is the property of the Company, held by Employee in trust solely for the benefit of the Company,\nand will be delivered to the Company upon termination of the Employee’s employment or at any other time upon request by the\nCompany. It is specifically agreed that any documents, card files, notebooks, rolodexes, or computer printouts containing confidential\ncustomer information are the property of the Company regardless of who prepared or assembled the information.\n10. Enforcement\nA. Reasonableness of Restrictions. Employee agrees and acknowledges that the above non-competition, non-solicitation, and non-\ndisclosure covenants are reasonable and necessary in that they protect the legitimate business interests of the Company, yet do not\nunreasonably impair Employee’s ability to earn a livelihood.\nB. Irreparable Harm; Injunctive Relief. Employee agrees and acknowledges that a violation by Employee of any of the covenants\ncontained herein will result in immediate and irreparable harm to the Company for which there is no adequate remedy at law. Employee hereby\nagrees that the Company will be entitled, in addition to any remedies it might have under this Agreement or at law, to injunctive and other\nequitable relief to prevent or curtail any threatened or actual breach of this Agreement.\nC. Extension of Covenants. During any breach of the provisions of this Agreement, the period of restraint set forth therein shall be\nautomatically tolled and suspended for the amount of time that the violation continues.\nD. Survival of Covenants. The obligations of Employee pursuant to Sections 3 – 9 of this Agreement shall survive the termination of\nthis Agreement and of Employee’s employment with the Company.\nE. Attorneys’ Fees. Employee agrees to pay the Company any attorney’s fees and costs which the Company incurs in enforcing, to any\nextent, the provisions of this Agreement, whether or not litigation is actually commenced and including any appeal.\nF. Choice of Law; Jurisdiction and Venue. This Agreement will be governed by the laws of the State of Washington to the maximum\nextent permissible under law. Employee irrevocably consents to the jurisdiction and venue of the federal and state courts located at King\nCounty, Washington with respect to any dispute arising out of or in connection with this Agreement, and agrees not to commence or prosecute\nany action or proceeding arising out of or related to this Agreement other than in the aforementioned courts.\n11. Judicial Modification. The parties agree that, if any portion of this Agreement, including any restrictions herein, is held in any legal\nproceeding to be invalid or unenforceable, the remaining portions of this Agreement, including any restrictions herein, will remain in full\nforce and effect. If any such invalidity or unenforceability is due to the unreasonableness of any particular portion or restriction, such\nportion or restriction shall be interpreted and enforced to the maximum extent permissible by law.\n12. Construction of Agreement.\nA. No Employment Rights. This Agreement does not grant or extend to Employee any rights to employment by the Company. The\nEmployee remains an employee at will, meaning that either Employer or the Company may terminate the employment of Employee,\nwith cause or without cause and with or without notice. This Agreement shall survive the termination of the employment of Employee\nand the terms and provisions of this Agreement shall remain enforceable in accordance with its terms.\nConfidential and Proprietary Property of InfrastruX Group.\n3\nB. Other Claims and Defenses. The parties agree that the existence of any claims, defenses of obligations between the parties not\ndescribed the in Agreement shall not affect the enforceability of this Agreement or the remedies thereunder.\nC. Successors and Assigns. The parties agree that this Agreement shall be automatically assigned to any successor of the Company,\nunless specifically provided otherwise in a writing executed by the President of the Company.\nD. Entire Understanding; Modification. This Agreement contains the entire understanding between the parties only as to the subjects\nset forth herein, and supersedes any prior understandings and agreements, written or oral, among them respecting the subject matter\nherein. This Agreement may not be modified, except by a writing signed by Employee and the President of the Company.\n13. Employee’s Representation Regarding Other Agreements. Employee represents and warrants that he/she is not a party to or\notherwise subject to or bound by the terms of any contract, agreement or understanding which in an manner would limit or otherwise\naffect his/her ability to perform his/her duties as an employee of the Company, including without limitation any contract, agreement or\nunderstanding containing terms and provisions similar in any manner to those contained in Section 3 of this Agreement. Employee\nfurther represents and warrants that his/her employment with the Company will not require him/her to disclose or use any confidential\ninformation belonging to prior employers or other persons, or entities.\n14. Certificate of Understanding. Employee certifies that Employee received a copy of this Agreement for review and study before being\nasked to sign it; read this Agreement carefully; had sufficient opportunity to discuss the Agreement with the attorney or counselor of\nEmployee’s choice; understands Employee’s obligations under the Agreement; and signs this Agreement freely and voluntarily, and\nwithout any coercion from any person.\nEmployee\nCompany\nSignature:\n/s/ John R. Higgins\nSignature:\n/s/ Richard Schwartz\nPrint Name: John R. Higgins\nPrint Name: Richard Schwartz\nDate:\n5/5/2006\nTitle:\nCOO\nDate:\n5/5/2006\nConfidential and Proprietary Property of InfrastruX Group.\n4
+2676f4f5023b16823188032a01a73002.pdf	effective_date jurisdiction party term	EX-99.(E)(8) 2 dex99e8.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(8)\nMAXWELL SHOE COMPANY INC.\n101 SPRAGUE STREET, P.O. BOX 37\nREADVILLE (BOSTON), MA 02137-0037\nJune 8, 2004\nJones Apparel Group, Inc.\n250 Rittenhouse Circle\nBristol, Pennsylvania 19007\nAttention: Peter Boneparth\nMUTUAL CONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nThis confidentiality agreement (this “Agreement”) is entered into as of the date set forth above between Maxwell Shoe Company Inc., a Delaware\ncorporation (the “Maxwell”), and Jones Apparel Group, Inc. (“Jones”), a Pennsylvania corporation.\nIn connection with the consideration by each party hereto of a possible negotiated transaction, including, without limitation, a possible business\ncombination or other business transaction (a “Transaction”), with the other party hereto and/or its subsidiaries, affiliates or divisions (references\nherein to each “party” shall include subsidiaries, affiliates and divisions of such party), each party is prepared to make available to the other party\ncertain information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished\nto the other party and the other party’s directors, officers, employees, agents, representatives or advisors (including, without limitation, attorneys,\naccountants, consultants, bankers and financial advisors) (collectively, “Representatives”), each party agrees to treat any information concerning the\nother party (whether prepared by the other party, its advisors or otherwise and irrespective of the form of communication) which is or has been\nfurnished to the party or its Representatives by the other party or by the other party’s Representatives (herein collectively referred to as the\n“Evaluation Material”) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions hereinafter set\nforth.\nAccordingly, each party hereby agrees that:\n1. The term “Evaluation Material” shall include, without limitation, all financial, business, operating and other data, reports, interpretations,\nforecasts and records provided by each party or its Representatives concerning such party and all notes, analyses, compilations, studies,\ninterpretations and other documents prepared by the other party or its Representatives that contain, reflect or are based upon, in whole or in\npart, such information. The term “Evaluation Material” shall not include information that (i) is or becomes publicly known other than as a\nresult of a disclosure by the receiving party or its\nRepresentatives in breach of this Agreement, (ii) was in the receiving party’s possession prior to its being furnished to the receiving party by\nthe disclosing party or any of its Representatives, (iii) became available to the receiving party on a non-confidential basis from a source other\nthan the disclosing party or any of its Representatives, or (iv) consists of information furnished or obtained pursuant to and in accordance with\nthe license agreement, dated as of July 9, 1999 (as amended to date), between ANNE KLEIN, a division of Kasper, A.S .L ., Ltd., and Maxwell\nand to which Jones Investment Co. Inc. is currently a party (it being understood that such information shall be subject to the provisions of such\nlicense agreement), provided that in the case of (ii) and (iii) above, the source of the information is not, to the knowledge of the receiving\nparty, bound by a confidentiality agreement with, or any other contractual, legal or fiduciary obligation of confidentiality to, the disclosing\nparty or any other person with respect to the information.\n2. The Evaluation Material shall be kept confidential by each party and its Representatives and shall be used by each party and its\nRepresentatives solely for the purpose of evaluating a Transaction. Except as provided in, and in compliance with, paragraph 4 below, each\nparty and its Representatives shall not disclose any of the Evaluation Material to any person (including, without limitation, any joint-venturer\nor provider of equity or debt financing, prospective or otherwise, or any of their subsidiaries, affiliates or divisions or any directors, officers,\nemployees, agents, representatives or advisors of any of them (collectively, “Providers”)) in any manner whatsoever, provided that each party\nmay disclose the Evaluation Material (i) to the extent that the other party gives its prior written consent (provided that, upon the execution and\ndelivery of a definitive agreement between the parties regarding a Transaction, such prior written consent shall not be required with respect to\nany disclosure to a Provider of debt financing) and (ii) to such party’s Representatives that need to know information in the Evaluation\nMaterial for the sole purpose of evaluating a Transaction, so long as such Representatives agree to keep that information confidential in\naccordance with the terms of this Agreement. In any event, each party shall be responsible for a breach of this Agreement by its\nRepresentatives and, at its sole expense, shall take all reasonable actions, including court proceedings, to restrain its Representatives from\nprohibited or unauthorized disclosure or use of the Evaluation Material.\n3. Except as required by law, rule, regulation, court order, subpoena or other legal process, each party and its Representatives shall not, without\nthe prior written consent of the other party, disclose to any other person (including, without limitation, any Providers), other than such party’s\nRepresentatives that need to know such information for the sole purpose of evaluating a Transaction, so long as such Representatives agree to\nkeep that information confidential in accordance with the terms of this Agreement, (i) the fact that the Evaluation Material exists or has been\nmade available to it or its Representatives, (ii) that discussions or negotiations are taking place concerning a Transaction or involving the other\nparty with respect thereto or (iii) any of the terms, conditions or other facts with respect to a Transaction, including, without limitation, the\nstatus thereof or the subject matter of this Agreement. For purposes of this Agreement, the term “person” shall be broadly interpreted to\ninclude the media and any individual, corporation, partnership, group or other entity. Notwithstanding anything in this Agreement to the\ncontrary, the\n2\nparties agree and acknowledge that (a) a party may disclose matters that are described in clauses (i), (ii) and (iii) of this paragraph 3 if, upon\nthe advice of and after consultation with outside legal counsel, the party determines in good faith that such matters are required to be disclosed\npursuant to the requirements of applicable Federal securities laws, including the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”), and the rules and regulations promulgated thereunder, and (b) the parties may disclose, and file with the Securities and Exchange\nCommission, this Agreement.\n4. If either party or any of its Representatives are requested by, or required by, court order, subpoena or other similar legal process, to disclose\nany of the Evaluation Material, it shall provide the other party with prompt written notice of any such request or requirement so that the other\nparty may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement, and in the\nabsence of such protective order or other remedy or the receipt of a waiver from the disclosing party, if the receiving party or any of its\nRepresentatives are, based upon the advice of legal counsel and in connection with any such request or requirement, legally obligated to\ndisclose any of the Evaluation Material, the receiving party or its Representatives may, without liability hereunder, disclose only such portion\nof the Evaluation Material that such legal counsel advises is legally required to be disclosed, provided that in that connection the receiving\nparty shall use its reasonable best efforts to preserve the confidentiality of such portion of the Evaluation Material, including, without\nlimitation, cooperating with the disclosing party to obtain an appropriate protective order or other reliable assurance that confidential treatment\nwill be accorded such portion of the Evaluation Material.\n5. If either party decides that it does not wish to proceed with a Transaction, it shall promptly inform the other party of that decision. In that case,\nor at any time upon the request of the disclosing party for any reason, the receiving party and its Representatives shall promptly destroy or\ndeliver to the disclosing party all Evaluation Material in its or its Representatives’ possession. Compliance by a receiving party and its\nRepresentatives with the preceding provisions regarding the destruction or return of Evaluation Material shall, upon the disclosing party’s\nrequest, be confirmed in writing to the disclosing party. Notwithstanding the destruction or return of the Evaluation Material, each party and its\nRepresentatives shall continue to be bound by its confidentiality and other obligations hereunder.\n6. Each party understands and acknowledges that neither party nor any of their Representatives or stockholders makes any representation or\nwarranty, express or implied, concerning the accuracy or completeness of the Evaluation Material. Each party agrees that neither party nor any\nof their Representatives or stockholders shall have any liability to the other party or to any of the other party’s Representatives or stockholders\nrelating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or\nwarranties that are made in a final definitive agreement regarding a Transaction, when, as and if executed and delivered, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect.\n3\n7. For a period of two years from the date of this Agreement, neither party shall, without the prior written consent of the other party, directly or\nindirectly, solicit for employment any employee of the other party with whom a party had contact or who became known to such party in\nconnection with its consideration of a Transaction; provided, however, that the foregoing provision shall not prevent such party from\nemploying any such person who (i) initiates discussions regarding such employment without any direct or indirect solicitation by or\nencouragement from such party, (ii) responds to a general media advertisement or non-directed search inquiry or (iii) has been terminated by\nthe other party prior to commencement of employment discussions between such party and such person.\n8. Each party understands and agrees that no contract or agreement providing for any Transaction between them shall be deemed to exist between\nthem unless and until a final definitive agreement has been executed and delivered, and each party hereby waives, in advance, any claims\n(including, without limitation, breach of contract and tortious interference claims) in connection with any Transaction involving the other party\nunless and until the parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive\nagreement regarding a Transaction between them has been executed and delivered, neither party shall be under any legal obligation of any kind\nwhatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party\nfurther acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made to it or its\nRepresentatives with regard to a Transaction between the parties, and to terminate discussions and negotiations with the other party at any\ntime.\n9. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single\nor partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n10. Money damages are not an adequate remedy for a breach of this Agreement by either party or any of their Representatives, and the parties\nhereto shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. The parties further\nwaive any requirement for the securing or posting of a bond in connection with such equitable relief and acknowledge that equitable relief\nshall not be deemed to be the exclusive remedy for a breach of this Agreement but shall be in addition to all other remedies available at law or\nequity to the parties.\n11. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and no provision of this Agreement\nmay be amended, modified, superseded or waived, in whole or in part, nor any consent given, except by a separate written agreement or\ninstrument executed by the parties. In the event that any provision of this Agreement is held to be illegal or contrary to public policy or\notherwise unenforceable, that provision shall be deemed eliminated herefrom or modified to the extent necessary to make the provision\nenforceable and the validity, legality and enforceability of the remaining provisions of this Agreement (including such provision as modified)\nshall not in any way be affected or impaired thereby.\n4\n12. This Agreement shall benefit and bind successors and permitted assigns of the parties. Neither party may assign any of its rights or delegate\nany of its duties under this Agreement, including by operation of law, without the prior written consent of the other party, and any purported\nassignment not consented to shall be absolutely void and of no force and effect.\n13. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of law\nprovisions thereof. Each party hereto irrevocably and unconditionally submits to the non-exclusive jurisdiction of any State or Federal court\nsitting in New York City over any suit, action or proceeding arising out of or relating to this Agreement. Each party hereby agrees that service\nof any process, summons, notice or document by U.S. registered mail addressed to the address set forth on the first page of this Agreement\nshall be effective service of process for any action, suit or proceeding brought against it in any such court.\n14. This Agreement shall terminate upon the earlier of (i) the third anniversary of the date of this Agreement and (ii) the consummation of a\nTransaction.\n15. This Agreement may be executed by the parties hereto in counterparts, both of which, taken together, shall constitute one and the same\nAgreement.\n16. Nothing in this Agreement shall prevent either party from disclosing any information required by the proxy rules; provided, however, that this\nparagraph 16 shall not apply to financial projections (the disclosure of which financial projections shall require the prior written consent of the\nproviding party).\n[Signatures on following page.]\n5\nPlease confirm your agreement to the foregoing by signing and returning the accompanying copy of this Agreement, whereupon this Agreement\nshall become binding on the parties hereto and on their respective successors and permitted assignees.\nVery truly yours,\nMAXWELL SHOE COMPANY INC.\nBy:\n/s/ JAMES J. TINAGERO\nName: James J. Tinagero\nTitle: Chief Operating Officer, Executive\nVice President, Secretary\nAgreed as of the date\nfirst written above:\nJONES APPAREL GROUP, INC.\nBy:\n/s/ IRA M. DANSKY\nName: Ira M. Dansky\nTitle: Executive Vice President, General\nCounsel and Secretary\n6	EX-99.(E)(8) 2 dex99e8.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(8)\nMAXWELL SHOE COMPANY INC.\n101 SPRAGUE STREET, P.O. BOX 37\nREADVILLE (BOSTON), MA 02137-0037\nJune 8, 2004\nJones Apparel Group, Inc.\n250 Rittenhouse Circle\nBristol, Pennsylvania 19007\nAttention: Peter Boneparth\nMUTUAL CONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nThis confidentiality agreement (this “Agreement”) is entered into as of the date set forth above between Maxwell Shoe Company Inc., a Delaware\ncorporation (the “Maxwell”), and Jones Apparel Group, Inc. (“Jones”), a Pennsylvania corporation.\nIn connection with the consideration by each party hereto of a possible negotiated transaction, including, without limitation, a possible business\ncombination or other business transaction (a “Transaction”), with the other party hereto and/or its subsidiaries, affiliates or divisions (references\nherein to each “party” shall include subsidiaries, affiliates and divisions of such party), each party is prepared to make available to the other party\ncertain information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished\nto the other party and the other party’s directors, officers, employees, agents, representatives or advisors (including, without limitation, attorneys,\naccountants, consultants, bankers and financial advisors) (collectively, “Representatives”), each party agrees to treat any information concerning the\nother party (whether prepared by the other party, its advisors or otherwise and irrespective of the form of communication) which is or has been\nfurnished to the party or its Representatives by the other party or by the other party’s Representatives (herein collectively referred to as the\n“Evaluation Material”) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions hereinafter set\nforth.\nAccordingly, each party hereby agrees that:\n1. The term “Evaluation Material” shall include, without limitation, all financial, business, operating and other data, reports, interpretations,\nforecasts and records provided by each party or its Representatives concerning such party and all notes, analyses, compilations, studies,\ninterpretations and other documents prepared by the other party or its Representatives that contain, reflect or are based upon, in whole or in\npart, such information. The term “Evaluation Material” shall not include information that (i) is or becomes publicly known other than as a\nresult of a disclosure by the receiving party or its\nRepresentatives in breach of this Agreement, (ii) was in the receiving party’s possession prior to its being furnished to the receiving party by\nthe disclosing party or any of its Representatives, (iii) became available to the receiving party on a non-confidential basis from a source other\nthan the disclosing party or any of its Representatives, or (iv) consists of information furnished or obtained pursuant to and in accordance with\nthe license agreement, dated as of July 9, 1999 (as amended to date), between ANNE KLEIN, a division of Kasper, A.S.L., Ltd., and Maxwell\nand to which Jones Investment Co. Inc. is currently a party (it being understood that such information shall be subject to the provisions of such\nlicense agreement), provided that in the case of (ii) and (iii) above, the source of the information is not, to the knowledge of the receiving\nparty, bound by a confidentiality agreement with, or any other contractual, legal or fiduciary obligation of confidentiality to, the disclosing\nparty or any other person with respect to the information.\nThe Evaluation Material shall be kept confidential by each party and its Representatives and shall be used by each party and its\nRepresentatives solely for the purpose of evaluating a Transaction. Except as provided in, and in compliance with, paragraph 4 below, each\nparty and its Representatives shall not disclose any of the Evaluation Material to any person (including, without limitation, any joint-venturer\nor provider of equity or debt financing, prospective or otherwise, or any of their subsidiaries, affiliates or divisions or any directors, officers,\nemployees, agents, representatives or advisors of any of them (collectively, “Providers”)) in any manner whatsoever, provided that each party\nmay disclose the Evaluation Material (i) to the extent that the other party gives its prior written consent (provided that, upon the execution and\ndelivery of a definitive agreement between the parties regarding a Transaction, such prior written consent shall not be required with respect to\nany disclosure to a Provider of debt financing) and (ii) to such party’s Representatives that need to know information in the Evaluation\nMaterial for the sole purpose of evaluating a Transaction, so long as such Representatives agree to keep that information confidential in\naccordance with the terms of this Agreement. In any event, each party shall be responsible for a breach of this Agreement by its\nRepresentatives and, at its sole expense, shall take all reasonable actions, including court proceedings, to restrain its Representatives from\nprohibited or unauthorized disclosure or use of the Evaluation Material.\nExcept as required by law, rule, regulation, court order, subpoena or other legal process, each party and its Representatives shall not, without\nthe prior written consent of the other party, disclose to any other person (including, without limitation, any Providers), other than such party’s\nRepresentatives that need to know such information for the sole purpose of evaluating a Transaction, so long as such Representatives agree to\nkeep that information confidential in accordance with the terms of this Agreement, (i) the fact that the Evaluation Material exists or has been\nmade available to it or its Representatives, (ii) that discussions or negotiations are taking place concerning a Transaction or involving the other\nparty with respect thereto or (iii) any of the terms, conditions or other facts with respect to a Transaction, including, without limitation, the\nstatus thereof or the subject matter of this Agreement. For purposes of this Agreement, the term “person” shall be broadly interpreted to\ninclude the media and any individual, corporation, partnership, group or other entity. Notwithstanding anything in this Agreement to the\ncontrary, the\nparties agree and acknowledge that (a) a party may disclose matters that are described in clauses (i), (ii) and (iii) of this paragraph 3 if, upon\nthe advice of and after consultation with outside legal counsel, the party determines in good faith that such matters are required to be disclosed\npursuant to the requirements of applicable Federal securities laws, including the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”), and the rules and regulations promulgated thereunder, and (b) the parties may disclose, and file with the Securities and Exchange\nCommission, this Agreement.\nIf either party or any of its Representatives are requested by, or required by, court order, subpoena or other similar legal process, to disclose\nany of the Evaluation Material, it shall provide the other party with prompt written notice of any such request or requirement so that the other\nparty may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement, and in the\nabsence of such protective order or other remedy or the receipt of a waiver from the disclosing party, if the receiving party or any of its\nRepresentatives are, based upon the advice of legal counsel and in connection with any such request or requirement, legally obligated to\ndisclose any of the Evaluation Material, the receiving party or its Representatives may, without liability hereunder, disclose only such portion\nof the Evaluation Material that such legal counsel advises is legally required to be disclosed, provided that in that connection the receiving\nparty shall use its reasonable best efforts to preserve the confidentiality of such portion of the Evaluation Material, including, without\nlimitation, cooperating with the disclosing party to obtain an appropriate protective order or other reliable assurance that confidential treatment\nwill be accorded such portion of the Evaluation Material.\nIf either party decides that it does not wish to proceed with a Transaction, it shall promptly inform the other party of that decision. In that case,\nor at any time upon the request of the disclosing party for any reason, the receiving party and its Representatives shall promptly destroy or\ndeliver to the disclosing party all Evaluation Material in its or its Representatives’ possession. Compliance by a receiving party and its\nRepresentatives with the preceding provisions regarding the destruction or return of Evaluation Material shall, upon the disclosing party’s\nrequest, be confirmed in writing to the disclosing party. Notwithstanding the destruction or return of the Evaluation Material, each party and its\nRepresentatives shall continue to be bound by its confidentiality and other obligations hereunder.\nEach party understands and acknowledges that neither party nor any of their Representatives or stockholders makes any representation or\nwarranty, express or implied, concerning the accuracy or completeness of the Evaluation Material. Each party agrees that neither party nor any\nof their Representatives or stockholders shall have any liability to the other party or to any of the other party’s Representatives or stockholders\nrelating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or\nwarranties that are made in a final definitive agreement regarding a Transaction, when, as and if executed and delivered, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect.\n3\n10. 11. For a period of two years from the date of this Agreement, neither party shall, without the prior written consent of the other party, directly or\nindirectly, solicit for employment any employee of the other party with whom a party had contact or who became known to such party in\nconnection with its consideration of a Transaction; provided, however, that the foregoing provision shall not prevent such party from\nemploying any such person who (i) initiates discussions regarding such employment without any direct or indirect solicitation by or\nencouragement from such party, (ii) responds to a general media advertisement or non-directed search inquiry or (iii) has been terminated by\nthe other party prior to commencement of employment discussions between such party and such person.\nEach party understands and agrees that no contract or agreement providing for any Transaction between them shall be deemed to exist between\nthem unless and until a final definitive agreement has been executed and delivered, and each party hereby waives, in advance, any claims\n(including, without limitation, breach of contract and tortious interference claims) in connection with any Transaction involving the other party\nunless and until the parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive\nagreement regarding a Transaction between them has been executed and delivered, neither party shall be under any legal obligation of any kind\nwhatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party\nfurther acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made to it or its\nRepresentatives with regard to a Transaction between the parties, and to terminate discussions and negotiations with the other party at any\ntime.\nNo failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single\nor partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\nMoney damages are not an adequate remedy for a breach of this Agreement by either party or any of their Representatives, and the parties\nhereto shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. The parties further\nwaive any requirement for the securing or posting of a bond in connection with such equitable relief and acknowledge that equitable relief\nshall not be deemed to be the exclusive remedy for a breach of this Agreement but shall be in addition to all other remedies available at law or\nequity to the parties.\nThis Agreement contains the entire agreement between the parties with respect to the subject matter hereof and no provision of this Agreement\nmay be amended, modified, superseded or waived, in whole or in part, nor any consent given, except by a separate written agreement or\ninstrument executed by the parties. In the event that any provision of this Agreement is held to be illegal or contrary to public policy or\notherwise unenforceable, that provision shall be deemed eliminated herefrom or modified to the extent necessary to make the provision\nenforceable and the validity, legality and enforceability of the remaining provisions of this Agreement (including such provision as modified)\nshall not in any way be affected or impaired thereby.\n12. 13. 14. 15. 16. This Agreement shall benefit and bind successors and permitted assigns of the parties. Neither party may assign any of its rights or delegate\nany of its duties under this Agreement, including by operation of law, without the prior written consent of the other party, and any purported\nassignment not consented to shall be absolutely void and of no force and effect.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of law\nprovisions thereof. Each party hereto irrevocably and unconditionally submits to the non-exclusive jurisdiction of any State or Federal court\nsitting in New York City over any suit, action or proceeding arising out of or relating to this Agreement. Each party hereby agrees that service\nof any process, summons, notice or document by U.S. registered mail addressed to the address set forth on the first page of this Agreement\nshall be effective service of process for any action, suit or proceeding brought against it in any such court.\nThis Agreement shall terminate upon the earlier of (i) the third anniversary of the date of this Agreement and (ii) the consummation of a\nTransaction.\nThis Agreement may be executed by the parties hereto in counterparts, both of which, taken together, shall constitute one and the same\nAgreement.\nNothing in this Agreement shall prevent either party from disclosing any information required by the proxy rules; provided, however, that this\nparagraph 16 shall not apply to financial projections (the disclosure of which financial projections shall require the prior written consent of the\nproviding party).\n[Signatures on following page.]\n5\nPlease confirm your agreement to the foregoing by signing and returning the accompanying copy of this Agreement, whereupon this Agreement\nshall become binding on the parties hereto and on their respective successors and permitted assignees.\nVery truly yours,\nMAXWELL SHOE COMPANY INC.\nBy: /s/ JAMES J. TINAGERO\nName: James J. Tinagero\nTitle: Chief Operating Officer, Executive\nVice President, Secretary\nAgreed as of the date\nfirst written above:\nJONES APPAREL GROUP, INC.\nBy: /s/ IRA M. DANSKY\nName: Ira M. Dansky\nTitle: Executive Vice President, General\nCounsel and Secretary	X-99.(E)(8) 2 dex99e8.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(8)\nMAXWELL SHOE COMPANY INC.\n101 SPRAGUE STREET, P.O. BOX 37\nREADVILLE (BOSTON), MA 02137-0037\nJune 8, 2004\nJones Apparel Group, Inc.\n250 Rittenhouse Circle\nBristol, Pennsylvania 19007\nAttention: Peter Boneparth\nMUTUAL CONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nThis confidentiality agreement (this "Agreement") is entered into as of the date set forth above between Maxwell Shoe Company Inc., a Delaware\ncorporation (the "Maxwell"), and Jones Apparel Group, Inc. ("Jones"), a Pennsylvania corporation.\nIn connection with the consideration by each party hereto of a possible negotiated transaction, including, without limitation, a possible business\ncombination or other business transaction (a "Transaction"), with the other party hereto and/or its subsidiaries, affiliates or divisions (references\nherein to each "party" shall include subsidiaries, affiliates and divisions of such party), each party is prepared to make available to the other party\ncertain information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished\nto the other party and the other party's directors, officers, employees, agents, representatives or advisors (including, without limitation, attorneys,\naccountants, consultants, bankers and financial advisors) (collectively, "Representatives"), each party agrees to treat any information concerning the\nother party (whether prepared by the other party, its advisors or otherwise and irrespective of the form of communication) which is or has been\nfurnished to the party or its Representatives by the other party or by the other party's Representatives (herein collectively referred to as the\n"Evaluation Material") in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions hereinafter\nset\nforth.\nAccordingly, each party hereby agrees that:\n1.\nThe term "Evaluation Material" shall include, without limitation, all financial, business, operating and other data, reports, interpretations,\nforecasts and records provided by each party or its Representatives concerning such party and all notes, analyses, compilations, studies,\ninterpretations and other documents prepared by the other party or its Representatives that contain, reflect or are based upon, in whole or in\npart, such information. The term "Evaluation Material" shall not include information that (i) is or becomes publicly known other than as a\nresult of a disclosure by the receiving party or its\nRepresentatives in breach of this Agreement, (ii) was in the receiving party's possession prior to its being furnished to the receiving party by\nthe disclosing party or any of its Representatives, (iii) became available to the receiving party on a non-confidential basis from a source other\nthan the disclosing party or any of its Representatives, or (iv) consists of information furnished or obtained pursuant to and in accordance with\nthe license agreement, dated as of July 9, 1999 (as amended to date), between ANNE KLEIN, a division of Kasper, A.S.L., Ltd., and Maxwell\nand to which Jones Investment Co. Inc. is currently a party (it being understood that such information shall be subject to the provisions of such\nlicense agreement), provided that in the case of (ii) and (iii) above, the source of the information is not, to the knowledge of the receiving\nparty, bound by a confidentiality agreement with, or any other contractual, legal or fiduciary obligation of confidentiality to, the disclosing\nparty or any other person with respect to the information.\n2.\nThe Evaluation Material shall be kept confidential by each party and its Representatives and shall be used by each party and its\nRepresentatives solely for the purpose of evaluating a Transaction. Except as provided in, and in compliance with, paragraph 4 below, each\nparty and its Representatives shall not disclose any of the Evaluation Material to any person (including, without limitation, any joint-venturer\nor provider of equity or debt financing, prospective or otherwise, or any of their subsidiaries, affiliates or divisions or any directors, officers,\nemployees, agents, representatives or advisors of any of them (collectively, "Providers")) in any manner whatsoever, provided that each party\nmay disclose the Evaluation Material (i) to the extent that the other party gives its prior written consent (provided that, upon the execution and\ndelivery of a definitive agreement between the parties regarding a Transaction, such prior written consent shall not be required with respect to\nany disclosure to a Provider of debt financing) and (ii) to such party's Representatives that need to know information in the Evaluation\nMaterial for the sole purpose of evaluating a Transaction, so long as such Representatives agree to keep that information confidential in\naccordance with the terms of this Agreement. In any event, each party shall be responsible for a breach of this Agreement by its\nRepresentatives and, at its sole expense, shall take all reasonable actions, including court proceedings, to restrain its Representatives from\nprohibited or unauthorized disclosure or use of the Evaluation Material.\n3.\nExcept as required by law, rule, regulation, court order, subpoena or other legal process, each party and its Representatives shall not, without\nthe prior written consent of the other party, disclose to any other person (including, without limitation, any Providers), other than such party's\nRepresentatives that need to know such information for the sole purpose of evaluating a Transaction, so long as such Representatives agree to\nkeep that information confidential in accordance with the terms of this Agreement, (i) the fact that the Evaluation Material exists or has been\nmade available to it or its Representatives, (ii) that discussions or negotiations are taking place concerning a Transaction or involving the other\nparty with respect thereto or (iii) any of the terms, conditions or other facts with respect to a Transaction, including, without limitation, the\nstatus thereof or the subject matter of this Agreement. For purposes of this Agreement, the term "person" shall be broadly interpreted to\ninclude the media and any individual, corporation, partnership, group or other entity. Notwithstanding anything in this Agreement to the\ncontrary, the\n2\nparties agree and acknowledge that (a) a party may disclose matters that are described in clauses (i), (ii) and (iii) of this paragraph 3 if, upon\nthe advice of and after consultation with outside legal counsel, the party determines in good faith that such matters are required to be disclosed\npursuant to the requirements of applicable Federal securities laws, including the Securities Exchange Act of 1934, as amended (the "Exchange\nAct"), and the rules and regulations promulgated thereunder, and (b) the parties may disclose, and file with the Securities and Exchange\nCommission, this Agreement.\n4.\nIf either party or any of its Representatives are requested by, or required by, court order, subpoena or other similar legal process, to disclose\nany of the Evaluation Material, it shall provide the other party with prompt written notice of any such request or requirement so that the other\nparty may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement, and in the\nabsence of such protective order or other remedy or the receipt of a waiver from the disclosing party, if the receiving party or any of its\nRepresentatives are, based upon the advice of legal counsel and in connection with any such request or requirement, legally obligated to\ndisclose any of the Evaluation Material, the receiving party or its Representatives may, without liability hereunder, disclose only such portion\nof the Evaluation Material that such legal counsel advises is legally required to be disclosed, provided that in that connection the receiving\nparty shall use its reasonable best efforts to preserve the confidentiality of such portion of the Evaluation Material, including, without\nlimitation, cooperating with the disclosing party to obtain an appropriate protective order or other reliable assurance that confidential treatment\nwill be accorded such portion of the Evaluation Material.\n5.\nIf either party decides that it does not wish to proceed with a Transaction, it shall promptly inform the other party of that decision. In that case,\nor at any time upon the request of the disclosing party for any reason, the receiving party and its Representatives shall promptly destroy or\ndeliver to the disclosing party all Evaluation Material in its or its Representatives' possession. Compliance by a receiving party and its\nRepresentatives with the preceding provisions regarding the destruction or return of Evaluation Material shall, upon the disclosing party's\nrequest, be confirmed in writing to the disclosing party. Notwithstanding the destruction or return of the Evaluation Material, each party and its\nRepresentatives shall continue to be bound by its confidentiality and other obligations hereunder.\n6.\nEach party understands and acknowledges that neither party nor any of their Representatives or stockholders makes any representation or\nwarranty, express or implied, concerning the accuracy or completeness of the Evaluation Material. Each party agrees that neither party nor any\nof their Representatives or stockholders shall have any liability to the other party or to any of the other party's Representatives or stockholders\nrelating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or\nwarranties that are made in a final definitive agreement regarding a Transaction, when, as and if executed and delivered, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect.\n3\n7.\nFor a period of two years from the date of this Agreement, neither party shall, without the prior written consent of the other party, directly\nor\nindirectly, solicit for employment any employee of the other party with whom a party had contact or who became known to such party in\nconnection with its consideration of a Transaction; provided, however, that the foregoing provision shall not prevent such party from\nemploying any such person who (i) initiates discussions regarding such employment without any direct or indirect solicitation by or\nencouragement from such party, (ii) responds to a general media advertisement or non-directed search inquiry or (iii) has been terminated by\nthe other party prior to commencement of employment discussions between such party and such person.\n8.\nEach party understands and agrees that no contract or agreement providing for any Transaction between them shall be deemed to exist between\nthem unless and until a final definitive agreement has been executed and delivered, and each party hereby waives, in advance, any claims\n(including, without limitation, breach of contract and tortious interference claims) in connection with any Transaction involving the other party\nunless and until the parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive\nagreement regarding a Transaction between them has been executed and delivered, neither party shall be under any legal obligation of any kind\nwhatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party\nfurther acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made to it or its\nRepresentatives with regard to a Transaction between the parties, and to terminate discussions and negotiations with the other party at any\ntime.\n9.\nNo failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single\nor partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n10. Money damages are not an adequate remedy for a breach of this Agreement by either party or any of their Representatives, and the parties\nhereto shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. The parties further\nwaive any requirement for the securing or posting of a bond in connection with such equitable relief and acknowledge that equitable relief\nshall not be deemed to be the exclusive remedy for a breach of this Agreement but shall be in addition to all other remedies available at law or\nequity to the parties\n11. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and no provision of this Agreement\nmay be amended, modified, superseded or waived, in whole or in part, nor any consent given, except by a separate written agreement or\ninstrument executed by the parties. In the event that any provision of this Agreement is held to be illegal or contrary to public policy\nor\notherwise unenforceable, that provision shall be deemed eliminated herefrom or modified to the extent necessary to make the provision\nenforceable and the validity, legality and enforceability of the remaining provisions of this Agreement (including such provision as modified)\nshall not in any way be affected or impaired thereby.\n4\n12. This Agreement shall benefit and bind successors and permitted assigns of the parties. Neither party may assign any of its rights or delegate\nany of its duties under this Agreement, including by operation of law, without the prior written consent of the other party, and any purported\nassignment not consented to shall be absolutely void and of no force and effect.\n13.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of law\nprovisions thereof. Each party hereto irrevocably and unconditionally submits to the non-exclusive jurisdiction of any State or Federal court\nsitting in New York City over any suit, action or proceeding arising out of or relating to this Agreement. Each party hereby agrees that service\nof any process, summons, notice or document by U.S. registered mail addressed to the address set forth on the first page of this Agreement\nshall be effective service of process for any action, suit or proceeding brought against it in any such court.\n14.\nThis Agreement shall terminate upon the earlier of (i) the third anniversary of the date of this Agreement and (ii) the consummation of a\nTransaction.\n15.\nThis Agreement may be executed by the parties hereto in counterparts, both of which, taken together, shall constitute one and the same\nAgreement.\n16.\nNothing in this Agreement shall prevent either party from disclosing any information required by the proxy rules; provided, however, that this\nparagraph 16 shall not apply to financial projections (the disclosure of which financial projections shall require the prior written consent of the\nproviding party).\n[Signatures on following page.]\n5\nPlease confirm your agreement to the foregoing by signing and returning the accompanying copy of this Agreement, whereupon this Agreement\nshall become binding on the parties hereto and on their respective successors and permitted assignees.\nVery truly yours,\nMAXWELL SHOE COMPANY INC.\nBy:\n/s/ JAMES J. TINAGERO\nName: James J. Tinagero\nTitle: Chief Operating Officer, Executive\nVice President, Secretary\nAgreed as of the date\nfirst written above:\nJONES APPAREL GROUP, INC.\nBy:\n/s/\nIRA M. DANSKY\nName: Ira M. Dansky\nTitle: Executive Vice President, General\nCounsel and Secretary\n6	EX-99.(E)(8) 2 dex99e8.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(8)\nMAXWELL SHOE COMPANY INC.\n101 SPRAGUE STREET, P.O. BOX 37\nREADVILLE (BOSTON), MA 02137-0037\nJune 8, 2004\nJones Apparel Group, Inc.\n250 Rittenhouse Circle\nBristol, Pennsylvania 19007\nAttention: Peter Boneparth\nMUTUAL CONFIDENTIALITY AGREEMENT\nLadies and Gentlemen:\nThis confidentiality agreement (this “Agreement”) is entered into as of the date set forth above between Maxwell Shoe Company Inc., a Delaware\ncorporation (the “Maxwell”), and Jones Apparel Group, Inc. (“Jones”), a Pennsylvania corporation.\nIn connection with the consideration by each party hereto of a possible negotiated transaction, including, without limitation, a possible business\ncombination or other business transaction (a “Transaction”), with the other party hereto and/or its subsidiaries, affiliates or divisions (references\nherein to each “party” shall include subsidiaries, affiliates and divisions of such party), each party is prepared to make available to the other party\ncertain information concerning its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished\nto the other party and the other party’s directors, officers, employees, agents, representatives or advisors (including, without limitation, attorneys,\naccountants, consultants, bankers and financial advisors) (collectively, “Representatives”), each party agrees to treat any information concerning the\nother party (whether prepared by the other party, its advisors or otherwise and irrespective of the form of communication) which is or has been\nfurnished to the party or its Representatives by the other party or by the other party’s Representatives (herein collectively referred to as the\n“Evaluation Material”) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions hereinafter set\nforth.\nAccordingly, each party hereby agrees that:\n1. The term “Evaluation Material” shall include, without limitation, all financial, business, operating and other data, reports, interpretations,\nforecasts and records provided by each party or its Representatives concerning such party and all notes, analyses, compilations, studies,\ninterpretations and other documents prepared by the other party or its Representatives that contain, reflect or are based upon, in whole or in\npart, such information. The term “Evaluation Material” shall not include information that (i) is or becomes publicly known other than as a\nresult of a disclosure by the receiving party or its\nRepresentatives in breach of this Agreement, (ii) was in the receiving party’s possession prior to its being furnished to the receiving party by\nthe disclosing party or any of its Representatives, (iii) became available to the receiving party on a non-confidential basis from a source other\nthan the disclosing party or any of its Representatives, or (iv) consists of information furnished or obtained pursuant to and in accordance with\nthe license agreement, dated as of July 9, 1999 (as amended to date), between ANNE KLEIN, a division of Kasper, A.S .L ., Ltd., and Maxwell\nand to which Jones Investment Co. Inc. is currently a party (it being understood that such information shall be subject to the provisions of such\nlicense agreement), provided that in the case of (ii) and (iii) above, the source of the information is not, to the knowledge of the receiving\nparty, bound by a confidentiality agreement with, or any other contractual, legal or fiduciary obligation of confidentiality to, the disclosing\nparty or any other person with respect to the information.\n2. The Evaluation Material shall be kept confidential by each party and its Representatives and shall be used by each party and its\nRepresentatives solely for the purpose of evaluating a Transaction. Except as provided in, and in compliance with, paragraph 4 below, each\nparty and its Representatives shall not disclose any of the Evaluation Material to any person (including, without limitation, any joint-venturer\nor provider of equity or debt financing, prospective or otherwise, or any of their subsidiaries, affiliates or divisions or any directors, officers,\nemployees, agents, representatives or advisors of any of them (collectively, “Providers”)) in any manner whatsoever, provided that each party\nmay disclose the Evaluation Material (i) to the extent that the other party gives its prior written consent (provided that, upon the execution and\ndelivery of a definitive agreement between the parties regarding a Transaction, such prior written consent shall not be required with respect to\nany disclosure to a Provider of debt financing) and (ii) to such party’s Representatives that need to know information in the Evaluation\nMaterial for the sole purpose of evaluating a Transaction, so long as such Representatives agree to keep that information confidential in\naccordance with the terms of this Agreement. In any event, each party shall be responsible for a breach of this Agreement by its\nRepresentatives and, at its sole expense, shall take all reasonable actions, including court proceedings, to restrain its Representatives from\nprohibited or unauthorized disclosure or use of the Evaluation Material.\n3. Except as required by law, rule, regulation, court order, subpoena or other legal process, each party and its Representatives shall not, without\nthe prior written consent of the other party, disclose to any other person (including, without limitation, any Providers), other than such party’s\nRepresentatives that need to know such information for the sole purpose of evaluating a Transaction, so long as such Representatives agree to\nkeep that information confidential in accordance with the terms of this Agreement, (i) the fact that the Evaluation Material exists or has been\nmade available to it or its Representatives, (ii) that discussions or negotiations are taking place concerning a Transaction or involving the other\nparty with respect thereto or (iii) any of the terms, conditions or other facts with respect to a Transaction, including, without limitation, the\nstatus thereof or the subject matter of this Agreement. For purposes of this Agreement, the term “person” shall be broadly interpreted to\ninclude the media and any individual, corporation, partnership, group or other entity. Notwithstanding anything in this Agreement to the\ncontrary, the\n2\nparties agree and acknowledge that (a) a party may disclose matters that are described in clauses (i), (ii) and (iii) of this paragraph 3 if, upon\nthe advice of and after consultation with outside legal counsel, the party determines in good faith that such matters are required to be disclosed\npursuant to the requirements of applicable Federal securities laws, including the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”), and the rules and regulations promulgated thereunder, and (b) the parties may disclose, and file with the Securities and Exchange\nCommission, this Agreement.\n4. If either party or any of its Representatives are requested by, or required by, court order, subpoena or other similar legal process, to disclose\nany of the Evaluation Material, it shall provide the other party with prompt written notice of any such request or requirement so that the other\nparty may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement, and in the\nabsence of such protective order or other remedy or the receipt of a waiver from the disclosing party, if the receiving party or any of its\nRepresentatives are, based upon the advice of legal counsel and in connection with any such request or requirement, legally obligated to\ndisclose any of the Evaluation Material, the receiving party or its Representatives may, without liability hereunder, disclose only such portion\nof the Evaluation Material that such legal counsel advises is legally required to be disclosed, provided that in that connection the receiving\nparty shall use its reasonable best efforts to preserve the confidentiality of such portion of the Evaluation Material, including, without\nlimitation, cooperating with the disclosing party to obtain an appropriate protective order or other reliable assurance that confidential treatment\nwill be accorded such portion of the Evaluation Material.\n5. If either party decides that it does not wish to proceed with a Transaction, it shall promptly inform the other party of that decision. In that case,\nor at any time upon the request of the disclosing party for any reason, the receiving party and its Representatives shall promptly destroy or\ndeliver to the disclosing party all Evaluation Material in its or its Representatives’ possession. Compliance by a receiving party and its\nRepresentatives with the preceding provisions regarding the destruction or return of Evaluation Material shall, upon the disclosing party’s\nrequest, be confirmed in writing to the disclosing party. Notwithstanding the destruction or return of the Evaluation Material, each party and its\nRepresentatives shall continue to be bound by its confidentiality and other obligations hereunder.\n6. Each party understands and acknowledges that neither party nor any of their Representatives or stockholders makes any representation or\nwarranty, express or implied, concerning the accuracy or completeness of the Evaluation Material. Each party agrees that neither party nor any\nof their Representatives or stockholders shall have any liability to the other party or to any of the other party’s Representatives or stockholders\nrelating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or\nwarranties that are made in a final definitive agreement regarding a Transaction, when, as and if executed and delivered, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect.\n3\n7. For a period of two years from the date of this Agreement, neither party shall, without the prior written consent of the other party, directly or\nindirectly, solicit for employment any employee of the other party with whom a party had contact or who became known to such party in\nconnection with its consideration of a Transaction; provided, however, that the foregoing provision shall not prevent such party from\nemploying any such person who (i) initiates discussions regarding such employment without any direct or indirect solicitation by or\nencouragement from such party, (ii) responds to a general media advertisement or non-directed search inquiry or (iii) has been terminated by\nthe other party prior to commencement of employment discussions between such party and such person.\n8. Each party understands and agrees that no contract or agreement providing for any Transaction between them shall be deemed to exist between\nthem unless and until a final definitive agreement has been executed and delivered, and each party hereby waives, in advance, any claims\n(including, without limitation, breach of contract and tortious interference claims) in connection with any Transaction involving the other party\nunless and until the parties shall have entered into a final definitive agreement. Each party also agrees that unless and until a final definitive\nagreement regarding a Transaction between them has been executed and delivered, neither party shall be under any legal obligation of any kind\nwhatsoever with respect to such a Transaction by virtue of this Agreement except for the matters specifically agreed to herein. Each party\nfurther acknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made to it or its\nRepresentatives with regard to a Transaction between the parties, and to terminate discussions and negotiations with the other party at any\ntime.\n9. No failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single\nor partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n10. Money damages are not an adequate remedy for a breach of this Agreement by either party or any of their Representatives, and the parties\nhereto shall be entitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. The parties further\nwaive any requirement for the securing or posting of a bond in connection with such equitable relief and acknowledge that equitable relief\nshall not be deemed to be the exclusive remedy for a breach of this Agreement but shall be in addition to all other remedies available at law or\nequity to the parties.\n11. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and no provision of this Agreement\nmay be amended, modified, superseded or waived, in whole or in part, nor any consent given, except by a separate written agreement or\ninstrument executed by the parties. In the event that any provision of this Agreement is held to be illegal or contrary to public policy or\notherwise unenforceable, that provision shall be deemed eliminated herefrom or modified to the extent necessary to make the provision\nenforceable and the validity, legality and enforceability of the remaining provisions of this Agreement (including such provision as modified)\nshall not in any way be affected or impaired thereby.\n4\n12. This Agreement shall benefit and bind successors and permitted assigns of the parties. Neither party may assign any of its rights or delegate\nany of its duties under this Agreement, including by operation of law, without the prior written consent of the other party, and any purported\nassignment not consented to shall be absolutely void and of no force and effect.\n13. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of law\nprovisions thereof. Each party hereto irrevocably and unconditionally submits to the non-exclusive jurisdiction of any State or Federal court\nsitting in New York City over any suit, action or proceeding arising out of or relating to this Agreement. Each party hereby agrees that service\nof any process, summons, notice or document by U.S. registered mail addressed to the address set forth on the first page of this Agreement\nshall be effective service of process for any action, suit or proceeding brought against it in any such court.\n14. This Agreement shall terminate upon the earlier of (i) the third anniversary of the date of this Agreement and (ii) the consummation of a\nTransaction.\n15. This Agreement may be executed by the parties hereto in counterparts, both of which, taken together, shall constitute one and the same\nAgreement.\n16. Nothing in this Agreement shall prevent either party from disclosing any information required by the proxy rules; provided, however, that this\nparagraph 16 shall not apply to financial projections (the disclosure of which financial projections shall require the prior written consent of the\nproviding party).\n[Signatures on following page.]\n5\nPlease confirm your agreement to the foregoing by signing and returning the accompanying copy of this Agreement, whereupon this Agreement\nshall become binding on the parties hereto and on their respective successors and permitted assignees.\nVery truly yours,\nMAXWELL SHOE COMPANY INC.\nBy:\n/s/ JAMES J. TINAGERO\nName: James J. Tinagero\nTitle: Chief Operating Officer, Executive\nVice President, Secretary\nAgreed as of the date\nfirst written above:\nJONES APPAREL GROUP, INC.\nBy:\n/s/ IRA M. DANSKY\nName: Ira M. Dansky\nTitle: Executive Vice President, General\nCounsel and Secretary\n6
+269af0222420f4f34e96ef9968b5027f.pdf	effective_date jurisdiction party term	EX-10.16 10 dex1016.htm CONFIDENTIALITY AND BUSINESS PROTECTION AGREEMENT\nExhibit 10.16\nConfidentiality and Business Protection Agreement\nThis Confidentiality and Business Protection Agreement (“Agreement”) is hereby entered into by and between Michael A. Lynch\n(“Executive”) and Cardinal Health, Inc., an Ohio Corporation (the “Company”) effective as of September 29, 2008. It is hereby agreed as follows:\n1. Consideration and Acknowledgements. The parties acknowledge that the provisions and covenants contained in this Agreement are ancillary\nand material to, and in consideration of, the employment letter agreement effective as of September 29, 2008 between the parties and that the\nlimitations contained herein are reasonable in geographic and temporal scope and do not impose a greater restriction or restraint than is necessary to\nprotect the goodwill and other legitimate business interests of the Company. The parties also acknowledge and agree that the provisions of this\nAgreement do not adversely affect the Executive’s ability to earn a living in any capacity that does not violate the covenants contained herein. The\nparties further acknowledge and agree that the provisions of Section 9 (a) below are accurate and necessary because (i) this Agreement Is entered\ninto in the State of Ohio, (ii) Ohio has a substantial relationship to the parties and to this transaction, (iii) Ohio is the headquarters state of the\nCompany, which has operations worldwide and has a compelling interest in having its employees treated uniformly, (iv) the use of Ohio law\nprovides certainty to the parties in any covenant litigation in the United States, and (v) enforcement of the provisions of this Agreement would not\nviolate any fundamental public policy of Ohio or any other jurisdiction.\n2. Confidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company and all of its subsidiaries,\npartnerships, joint ventures, limited liability companies, and other affiliates (collectively, the “Cardinal Group”), all secret or confidential\ninformation, knowledge or data relating to the Cardinal Group and its businesses (including, without limitation, any proprietary and not publicly\navailable information concerning any processes, methods, trade secrets, research secret data, costs, names of users or purchasers of their respective\nproducts or services, business methods, operating procedures or programs or methods of promotion and sale) that the Executive has obtained or\nobtains during the Executive’s employment by the Cardinal Group and that is not public knowledge (other than as a result of the Executive’s\nviolation of this Agreement) (“Confidential Information”). For the purposes of this Agreement, information shall not be deemed to be publicly\navailable merely because it is embraced by general disclosures or because individual features or combinations thereof are publicly available. The\nExecutive shall not communicate, divulge or disseminate Confidential information at any time during or after the Executive’s employment with the\nCardinal Group, except with prior written consent of the applicable Cardinal Group company, or as otherwise required by law or legal process. All\nrecords, files, memoranda, reports, customer lists, drawings, plans, documents and the like that the Executive uses, prepares or comes into contact\nwith during the course of the\nExecutive’s employment shall remain the sole property of the Company and/or the Cardinal Group, as applicable, and shall be turned over to the\napplicable Cardinal Group company upon termination of the Executive’s employment.\n3. Non-Recruitment of Cardinal Group Employees, etc. Executive shall not, at any time during the Restricted Period (as defined in this\nAgreement), without the prior written consent of the Company, engage in the following conduct (a “Solicitation”): (I) directly or indirectly contact,\nsolicit, recruit or employ (whether as an employee, officer, director, agent, consultant or independent contractor) any person who is or, at any time\nduring the previous twelve months was, an employee, representative, officer or director of the Cardinal Group; or (ii) take any action to encourage or\ninduce any employee, representative, officer or director of the Cardinal Group to cease their relationship with the Cardinal Group for any reason. A\n“Solicitation” does not include any recruitment of employees within or for the Cardinal Group. The “Restricted Period” means the period of\nExecutive’s employment with the Cardinal Group and the additional period ending twenty-four months after the Executive’s date of termination of\nemployment or date of retirement, as applicable.\n4. No Competition — Solicitation of Business. During the Restricted Period, the Executive shall not (either directly or indirectly or as an\nofficer, agent, employee, partner or director of any other company, partnership or entity) solicit, service, or accept on behalf of any competitor of the\nCardinal Group the business of (i) any customer of the Cardinal Group at the time of the Executive’s employment or date of termination of\nemployment, or (ii) any potential customer of the Cardinal Group which the Executive knew to be an identified, prospective purchaser of services or\nproducts of the Cardinal Group.\n5. No Competition — Employment by Competitor. During the Restricted Period, the Executive shall not invest in (other than in a publicly\ntraded company with a maximum investment of no more than 1% of outstanding shares), counsel, advise, or be otherwise engaged or employed by,\nany entity or enterprise that competes with the Cardinal Group, by developing, manufacturing or selling any product or service of a type,\nrespectively, developed, manufactured or sold by the Cardinal Group (each such person described, and not excepted, as a customer, potential\ncustomer or a competitor under Section 4 or this Section 5 of this Agreement is a “Competitor”).\n6. No Disparagement.\n(a) The Executive and the Company shall at all times refrain from taking actions or making statements, written or oral, that\n(A) denigrate, disparage or defame the goodwill or reputation of Executive or the Cardinal Group, as the case may be, or any of its trustees, officers,\nsecurity holders, partners, agents or former or current employees and directors, or (B) are intended to, or may be reasonably expected to, adversely\naffect the morale of the employees of the Cardinal Group. The Executive further agrees not to make any negative statements to third parties relating\nto the\n2\nExecutive’s employment or any aspect of the businesses of Cardinal Group and not to make any statements to third parties about the circumstances\nof the termination of the Executive’s employment, or about the Cardinal Group or its trustees, directors, officers, security holders, partners, agents or\nformer or current employees and directors, except as may be required by a court or governmental body,\n(b) The Executive further agrees that, following termination of employment for any reason, the Executive shall assist and cooperate with\nthe Company with regard to any matter or project in which the Executive was involved during the Executive’s employment with the Company,\nincluding but not limited to any litigation that may be pending or arise after such termination of employment, Further, the Executive agrees to notify\nthe Company at the earliest opportunity of any contact that is made by any third parties concerning any such matter or project. The Company shall\nnot unreasonably request such cooperation of Executive and shall cooperate with the Executive in scheduling any assistance by the Executive, taking\ninto account the Executive’s business and personal affairs, and shall compensate the Executive for any lost wages or expenses associated with such\ncooperation and assistance.\n7. Inventions. All plans, discoveries and improvements, whether patentable or unpatentable, made or devised by the Executive, whether alone\nor jointly with others, from the date of the Executive’s initial employment by the Company and continuing until the end of any period during which\nthe Executive is employed by the Cardinal Group, relating or pertaining in any way to the Executive’s employment with or the business of the\nCardinal Group, shall be promptly disclosed in writing to the Secretary of the Board and are hereby transferred to and shall redound to the benefit of\nthe Company, and shall become and remain its sole and exclusive property, The Executive agrees to execute any assignment to the Company or its\nnominee, of the Executive’s entire right, title and interest in and to any such discoveries and Improvements and to execute any other instruments and\ndocuments requisite or desirable in applying for and obtaining patents, trademarks or copyrights, at the expense of the Company, with respect thereto\nin the United States and in all foreign countries, that may be required by the Company. The Executive further agrees at all times to cooperate to the\nextent and in the manner required by the Company, in the prosecution or defense of any patent or copyright claims or any litigation, or other\nproceeding involving any trade secrets, processes, discoveries or Improvements covered by this Agreement, but all necessary expenses thereof shall\nbe paid by the Company.\n8. Acknowledgement and Enforcement, The Executive acknowledges and agrees that: (A) the purpose of the foregoing covenants, including\nwithout limitation the noncompetition covenants of Sections 4 and 5, is to protect the goodwill, trade secrets and other Confidential Information of\nthe Company; (B) because of the nature of the business in which the Cardinal Group is engaged and because of the nature of the Confidential\nInformation to which the Executive has access, the Company would suffer irreparable harm and it would be impractical and excessively difficult to\ndetermine the actual damages of the Cardinal Group in the event the Executive breached any of the\n3\ncovenants of this Agreement; and (C) remedies at law (such as monetary damages) for any breach of the Executive’s obligations under this\nAgreement would be inadequate. The Executive therefore agrees and consents that if the Executive commits any breach of a covenant under this\nAgreement or threatens to commit any such breach, the Company shall have the right (in addition to, and not in lieu of, any other right or remedy\nthat may be available to it) to temporary and permanent injunctive relief from a court of competent jurisdiction, without posting any bond or other\nsecurity and without the necessity of proof of actual damage.\n9. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without reference to principles\nof conflict of laws. If, under any such law, any portion of this Agreement is at any time deemed to be in conflict with any applicable statute, rule,\nregulation or ordinance, such portion shall be deemed to be modified or altered to conform thereto. The parties hereto irrevocably agree to submit to\nthe jurisdiction and venue of the courts of the State of Ohio in any action or proceeding brought with respect to or in connection with this\nAgreement. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement constitutes the\nentire agreement of the parties with respect to the subject matter hereof. This Agreement may not be amended or modified otherwise than by a\nwritten agreement executed by the parties hereto or their respective successors and legal representatives.\n(b) All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by\nregistered or certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive:\nAt the most recent address on file for the Executive at the Company.\nIf to the Company:\nCardinal Health, Inc.\n7000 Cardinal Place\nDublin, Ohio 43017\nAttention: Chief Legal Officer\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement. If any provision of this Agreement shall be held invalid or unenforceable in part, the remaining portion of such\nprovision, together with all other provisions of this Agreement, shall remain valid and enforceable and continue in full force and effect to the fullest\nextent consistent with the law.\n4\n(d) The Executive’s or the Company’s failure to insist upon strict compliance with any provision of this Agreement or the failure to\nassert any right the Executive or the Company may have hereunder, shall not be deemed to be a waiver of such provision or right or any other\nprovision or right of this Agreement.\nIN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and the Company has caused these presents to be executed in its\nname and on its behalf, all as of the day and year first above written.\n/s/ Michael Lynch\nMichael A. Lynch\nExecution Date: 10/28, 2008\nCARDINAL HEALTH, INC.\n/s/ George S. Barrett\nBy: George S. Barrett\nIts: Vice Chairman and CEO, HSCS\nExecution Date:\n, 2008\n5	EX-10.16 10 dex1016.htm CONFIDENTIALITY AND BUSINESS PROTECTION AGREEMENT\nExhibit 10.16\nConfidentiality and Business Protection Agreement\nThis Confidentiality and Business Protection Agreement (“Agreement”) is hereby entered into by and between Michael A. Lynch\n(“Executive”) and Cardinal Health, Inc., an Ohio Corporation (the “Company”) effective as of September 29, 2008. It is hereby agreed as follows:\n1. Consideration and Acknowledgements. The parties acknowledge that the provisions and covenants contained in this Agreement are ancillary\nand material to, and in consideration of, the employment letter agreement effective as of September 29, 2008 between the parties and that the\nlimitations contained herein are reasonable in geographic and temporal scope and do not impose a greater restriction or restraint than is necessary to\nprotect the goodwill and other legitimate business interests of the Company. The parties also acknowledge and agree that the provisions of this\nAgreement do not adversely affect the Executive’s ability to earn a living in any capacity that does not violate the covenants contained herein. The\nparties further acknowledge and agree that the provisions of Section 9 (a) below are accurate and necessary because (i) this Agreement Is entered\ninto in the State of Ohio, (ii) Ohio has a substantial relationship to the parties and to this transaction, (iii) Ohio is the headquarters state of the\nCompany, which has operations worldwide and has a compelling interest in having its employees treated uniformly, (iv) the use of Ohio law\nprovides certainty to the parties in any covenant litigation in the United States, and (v) enforcement of the provisions of this Agreement would not\nviolate any fundamental public policy of Ohio or any other jurisdiction.\n2. Confidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company and all of its subsidiaries,\npartnerships, joint ventures, limited liability companies, and other affiliates (collectively, the “Cardinal Group™), all secret or confidential\ninformation, knowledge or data relating to the Cardinal Group and its businesses (including, without limitation, any proprietary and not publicly\navailable information concerning any processes, methods, trade secrets, research secret data, costs, names of users or purchasers of their respective\nproducts or services, business methods, operating procedures or programs or methods of promotion and sale) that the Executive has obtained or\nobtains during the Executive’s employment by the Cardinal Group and that is not public knowledge (other than as a result of the Executive’s\nviolation of this Agreement) (“Confidential Information”). For the purposes of this Agreement, information shall not be deemed to be publicly\navailable merely because it is embraced by general disclosures or because individual features or combinations thereof are publicly available. The\nExecutive shall not communicate, divulge or disseminate Confidential information at any time during or after the Executive’s employment with the\nCardinal Group, except with prior written consent of the applicable Cardinal Group company, or as otherwise required by law or legal process. All\nrecords, files, memoranda, reports, customer lists, drawings, plans, documents and the like that the Executive uses, prepares or comes into contact\nwith during the course of the\nExecutive’s employment shall remain the sole property of the Company and/or the Cardinal Group, as applicable, and shall be turned over to the\napplicable Cardinal Group company upon termination of the Executive’s employment.\n3. Non-Recruitment of Cardinal Group Employees, etc. Executive shall not, at any time during the Restricted Period (as defined in this\nAgreement), without the prior written consent of the Company, engage in the following conduct (a “Solicitation): (I) directly or indirectly contact,\nsolicit, recruit or employ (whether as an employee, officer, director, agent, consultant or independent contractor) any person who is or, at any time\nduring the previous twelve months was, an employee, representative, officer or director of the Cardinal Group; or (ii) take any action to encourage or\ninduce any employee, representative, officer or director of the Cardinal Group to cease their relationship with the Cardinal Group for any reason. A\n“Solicitation” does not include any recruitment of employees within or for the Cardinal Group. The “Restricted Period” means the period of\nExecutive’s employment with the Cardinal Group and the additional period ending twenty-four months after the Executive’s date of termination of\nemployment or date of retirement, as applicable.\n4. No Competition — Solicitation of Business. During the Restricted Period, the Executive shall not (either directly or indirectly or as an\nofficer, agent, employee, partner or director of any other company, partnership or entity) solicit, service, or accept on behalf of any competitor of the\nCardinal Group the business of (i) any customer of the Cardinal Group at the time of the Executive’s employment or date of termination of\nemployment, or (ii) any potential customer of the Cardinal Group which the Executive knew to be an identified, prospective purchaser of services or\nproducts of the Cardinal Group.\ntraded company with a maximum investment of no more than 1% of outstanding shares), counsel, advise, or be otherwise engaged or employed by,\nany entity or enterprise that competes with the Cardinal Group, by developing, manufacturing or selling any product or service of a type,\nrespectively, developed, manufactured or sold by the Cardinal Group (each such person described, and not excepted, as a customer, potential\ncustomer or a competitor under Section 4 or this Section 5 of this Agreement is a “Competitor”).\n6. No Disparagement.\n(a) The Executive and the Company shall at all times refrain from taking actions or making statements, written or oral, that\n(A) denigrate, disparage or defame the goodwill or reputation of Executive or the Cardinal Group, as the case may be, or any of its trustees, officers,\nsecurity holders, partners, agents or former or current employees and directors, or (B) are intended to, or may be reasonably expected to, adversely\naffect the morale of the employees of the Cardinal Group. The Executive further agrees not to make any negative statements to third parties relating\nto the\nExecutive’s employment or any aspect of the businesses of Cardinal Group and not to make any statements to third parties about the circumstances\nof the termination of the Executive’s employment, or about the Cardinal Group or its trustees, directors, officers, security holders, partners, agents or\nformer or current employees and directors, except as may be required by a court or governmental body,\n(b) The Executive further agrees that, following termination of employment for any reason, the Executive shall assist and cooperate with\nthe Company with regard to any matter or project in which the Executive was involved during the Executive’s employment with the Company,\nincluding but not limited to any litigation that may be pending or arise after such termination of employment, Further, the Executive agrees to notify\nthe Company at the earliest opportunity of any contact that is made by any third parties concerning any such matter or project. The Company shall\nnot unreasonably request such cooperation of Executive and shall cooperate with the Executive in scheduling any assistance by the Executive, taking\ninto account the Executive’s business and personal affairs, and shall compensate the Executive for any lost wages or expenses associated with such\ncooperation and assistance.\n7. Inventions. All plans, discoveries and improvements, whether patentable or unpatentable, made or devised by the Executive, whether alone\nor jointly with others, from the date of the Executive’s initial employment by the Company and continuing until the end of any period during which\nthe Executive is employed by the Cardinal Group, relating or pertaining in any way to the Executive’s employment with or the business of the\nCardinal Group, shall be promptly disclosed in writing to the Secretary of the Board and are hereby transferred to and shall redound to the benefit of\nthe Company, and shall become and remain its sole and exclusive property, The Executive agrees to execute any assignment to the Company or its\nnominee, of the Executive’s entire right, title and interest in and to any such discoveries and Improvements and to execute any other instruments and\ndocuments requisite or desirable in applying for and obtaining patents, trademarks or copyrights, at the expense of the Company, with respect thereto\nin the United States and in all foreign countries, that may be required by the Company. The Executive further agrees at all times to cooperate to the\nextent and in the manner required by the Company, in the prosecution or defense of any patent or copyright claims or any litigation, or other\nproceeding involving any trade secrets, processes, discoveries or Improvements covered by this Agreement, but all necessary expenses thereof shall\nbe paid by the Company.\n8. Acknowledgement and Enforcement, The Executive acknowledges and agrees that: (A) the purpose of the foregoing covenants, including\nwithout limitation the noncompetition covenants of Sections 4 and 5, is to protect the goodwill, trade secrets and other Confidential Information of\nthe Company; (B) because of the nature of the business in which the Cardinal Group is engaged and because of the nature of the Confidential\nInformation to which the Executive has access, the Company would suffer irreparable harm and it would be impractical and excessively difficult to\ndetermine the actual damages of the Cardinal Group in the event the Executive breached any of the\n \n3\ncovenants of this Agreement; and (C) remedies at law (such as monetary damages) for any breach of the Executive’s obligations under this\nAgreement would be inadequate. The Executive therefore agrees and consents that if the Executive commits any breach of a covenant under this\nAgreement or threatens to commit any such breach, the Company shall have the right (in addition to, and not in lieu of, any other right or remedy\nthat may be available to it) to temporary and permanent injunctive relief from a court of competent jurisdiction, without posting any bond or other\nsecurity and without the necessity of proof of actual damage.\n9. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without reference to principles\nof conflict of laws. If, under any such law, any portion of this Agreement is at any time deemed to be in conflict with any applicable statute, rule,\nregulation or ordinance, such portion shall be deemed to be modified or altered to conform thereto. The parties hereto irrevocably agree to submit to\nthe jurisdiction and venue of the courts of the State of Ohio in any action or proceeding brought with respect to or in connection with this\nAgreement. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement constitutes the\nentire agreement of the parties with respect to the subject matter hereof. This Agreement may not be amended or modified otherwise than by a\nwritten agreement executed by the parties hereto or their respective successors and legal representatives.\n(b) All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by\nregistered or certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive: At the most recent address on file for the Executive at the Company.\nIf to the Company: Cardinal Health, Inc.\n7000 Cardinal Place\nDublin, Ohio 43017\nAttention: Chief Legal Officer\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement. If any provision of this Agreement shall be held invalid or unenforceable in part, the remaining portion of such\nprovision, together with all other provisions of this Agreement, shall remain valid and enforceable and continue in full force and effect to the fullest\nextent consistent with the law.\n(d) The Executive’s or the Company’s failure to insist upon strict compliance with any provision of this Agreement or the failure to\nassert any right the Executive or the Company may have hereunder, shall not be deemed to be a waiver of such provision or right or any other\nprovision or right of this Agreement.\nIN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and the Company has caused these presents to be executed in its\nname and on its behalf, all as of the day and year first above written.\n/s/ Michael Lynch\nMichael A. Lynch\nExecution Date: 10/28, 2008\nCARDINAL HEALTH, INC.\n/s/ George S. Barrett\nBy: George S. Barrett\nIts: Vice Chairman and CEO, HSCS\nExecution Date: , 2008	EX-10.16 10 dex 1016.htm CONFIDENTIALITY AND BUSINESS PROTECTION AGREEMENT\nExhibit 10.16\nConfidentiality and Business Protection Agreement\nThis Confidentiality and Business Protection Agreement ("Agreement") is hereby entered into by and between Michael A. Lynch\n("Executive") and Cardinal Health, Inc., an Ohio Corporation (the "Company") effective as of September 29, 2008. It is hereby agreed as follows:\n1. Consideration and Acknowledgements. The parties acknowledge that the provisions and covenants contained in this Agreement are ancillary\nand material to, and in consideration of, the employment letter agreement effective as of September 29, 2008 between the parties and that the\nlimitations contained herein are reasonable in geographic and temporal scope and do not impose a greater restriction or restraint than is necessary to\nprotect the goodwill and other legitimate business interests of the Company. The parties also acknowledge and agree that the provisions of this\nAgreement do not adversely affect the Executive's ability to earn a living in any capacity that does not violate the covenants contained herein. The\nparties further acknowledge and agree that the provisions of Section 9 (a) below are accurate and necessary because (i) this Agreement Is entered\ninto in the State of Ohio, (ii) Ohio has a substantial relationship to the parties and to this transaction, (iii) Ohio is the headquarters state of the\nCompany, which has operations worldwide and has a compelling interest in having its employees treated uniformly, (iv) the use of Ohio law\nprovides certainty to the parties in any covenant litigation in the United States, and (v) enforcement of the provisions of this Agreement would not\nviolate any fundamental public policy of Ohio or any other jurisdiction.\n2. Confidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company and all of its subsidiaries,\npartnerships, joint ventures, limited liability companies, and other affiliates (collectively, the "Cardinal Group"), all secret or confidential\ninformation, knowledge or data relating to the Cardinal Group and its businesses (including, without limitation, any proprietary and not publicly\navailable information concerning any processes, methods, trade secrets, research secret data, costs, names of users or purchasers of their respective\nproducts or services, business methods, operating procedures or programs or methods of promotion and sale) that the Executive has obtained or\nobtains during the Executive's employment by the Cardinal Group and that is not public knowledge (other than as a result of the Executive's\nviolation of this Agreement) ("Confidential Information"). For the purposes of this Agreement, information shall not be deemed to be publicly\navailable merely because it is embraced by general disclosures or because individual features or combinations thereof are publicly available. The\nExecutive shall not communicate, divulge or disseminate Confidential information at any time during or after the Executive's employment with the\nCardinal Group, except with prior written consent of the applicable Cardinal Group company, or as otherwise required by law or legal process. All\nrecords, files, memoranda, reports, customer lists, drawings, plans, documents and the like that the Executive uses, prepares or comes into contact\nwith during the course of the\nExecutive's employment shall remain the sole property of the Company and/or the Cardinal Group, as applicable, and shall be turned over to the\napplicable Cardinal Group company upon termination of the Executive's employment.\n3. Non-Recruitment of Cardinal Group Employees, etc. Executive shall not, at any time during the Restricted Period (as defined in this\nAgreement), without the prior written consent of the Company, engage in the following conduct (a "Solicitation"): (I) directly or indirectly contact,\nsolicit, recruit or employ (whether as an employee, officer, director, agent, consultant or independent contractor) any person who is or, at any time\nduring the previous twelve months was, an employee, representative, officer or director of the Cardinal Group; or (ii) take any action to encourage or\ninduce any employee, representative, officer or director of the Cardinal Group to cease their relationship with the Cardinal Group for any reason. A\n"Solicitation" does not include any recruitment of employees within or for the Cardinal Group. The "Restricted Period" means the period of\nExecutive's employment with the Cardinal Group and the additional period ending twenty-four months after the Executive's date of termination of\nemployment or date of retirement as applicable.\n4. No Competition - Solicitation of Business. During the Restricted Period, the Executive shall not (either directly or indirectly or as an\nofficer, agent, employee, partner or director of any other company, partnership or entity) solicit, service, or accept on behalf of any competitor of the\nCardinal Group the business of (i) any customer of the Cardinal Group at the time of the Executive's employment or date of termination of\nemployment, or (ii) any potential customer of the Cardinal Group which the Executive knew to be an identified, prospective purchaser of services or\nproducts of the Cardinal Group.\n5. No Competition - Employment by Competitor. During the Restricted Period, the Executive shall not invest in (other than in a publicly\ntraded company with a maximum investment of no more than 1% of outstanding shares), counsel, advise, or be otherwise engaged or employed by,\nany entity or enterprise that competes with the Cardinal Group, by developing, manufacturing or selling any product or service of a type,\nrespectively, developed, manufactured or sold by the Cardinal Group (each such person described, and not excepted, as a customer, potential\ncustomer or a competitor under Section 4 or this Section 5 of this Agreement is a "Competitor").\n6. No Disparagement.\n(a) The Executive and the Company shall at all times refrain from taking actions or making statements, written or oral, that\n(A) denigrate, disparage or defame the goodwill or reputation of Executive or the Cardinal Group, as the case may be, or any of its trustees, officers,\nsecurity holders, partners, agents or former or current employees and directors, or (B) are intended to, or may be reasonably expected to, adversely\naffect the morale of the employees of the Cardinal Group. The Executive further agrees not to make any negative statements to third parties relating\nto the\n2\nExecutive's employment or any aspect of the businesses of Cardinal Group and not to make any statements to third parties about the circumstances\nof the termination of the Executive's employment, or about the Cardinal Group or its trustees, directors, officers, security holders, partners, agents or\nformer or current employees and directors, except as may be required by a court or governmental body,\n(b) The Executive further agrees that, following termination of employment for any reason, the Executive shall assist and cooperate with\nthe Company with regard to any matter or project in which the Executive was involved during the Executive's employment with the Company,\nincluding but not limited to any litigation that may be pending or arise after such termination of employment, Further, the Executive agrees to notify\nthe Company at the earliest opportunity of any contact that is made by any third parties concerning any such matter or project. The Company shall\nnot unreasonably request such cooperation of Executive and shall cooperate with the Executive in scheduling any assistance by the Executive, taking\ninto account the Executive's business and personal affairs, and shall compensate the Executive for any lost wages or expenses associated with such\ncooperation and assistance.\n7. Inventions. All plans, discoveries and improvements, whether patentable or unpatentable, made or devised by the Executive, whether alone\nor jointly with others, from the date of the Executive's initial employment by the Company and continuing until the end of any period during which\nthe Executive is employed by the Cardinal Group, relating or pertaining in any way to the Executive's employment with or the business of the\nCardinal Group, shall be promptly disclosed in writing to the Secretary of the Board and are hereby transferred to and shall redound to the benefit of\nthe Company, and shall become and remain its sole and exclusive property, The Executive agrees to execute any assignment to the Company or its\nnominee, of the Executive's entire right, title and interest in and to any such discoveries and Improvements and to execute any other instruments and\ndocuments requisite or desirable in applying for and obtaining patents, trademarks or copyrights, at the expense of the Company, with respect thereto\nin\nthe United States and in all foreign countries, that may be required by the Company. The Executive further agrees at all times to cooperate to the\nextent and in the manner required by the Company, in the prosecution or defense of any patent or copyright claims or any litigation, or other\nproceeding involving any trade secrets, processes, discoveries or Improvements covered by this Agreement, but all necessary expenses thereof shall\nbe paid by the Company.\n8. Acknowledgement and Enforcement The Executive acknowledges and agrees that: (A) the purpose of the foregoing covenants, including\nwithout limitation the noncompetition covenants of Sections 4 and 5, is to protect the goodwill, trade secrets and other Confidential Information of\nthe Company; (B) because of the nature of the business in which the Cardinal Group is engaged and because of the nature of the Confidential\nInformation to which the Executive has access, the Company would suffer irreparable harm and it would be impractical and excessively difficult to\ndetermine the actual damages of the Cardinal Group in the event the Executive breached any of the\n3\ncovenants of this Agreement; and (C) remedies at law (such as monetary damages) for any breach of the Executive's obligations under this\nAgreement would be inadequate. The Executive therefore agrees and consents that if the Executive commits any breach of a covenant under this\nAgreement or threatens to commit any such breach, the Company shall have the right (in addition to, and not in lieu of, any other right or remedy\nthat may be available to it) to temporary and permanent injunctive relief from a court of competent jurisdiction, without posting any bond or other\nsecurity and without the necessity of proof of actual damage.\n9. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without reference to principles\nof conflict of laws. If, under any such law, any portion of this Agreement is at any time deemed to be in conflict with any applicable statute, rule,\nregulation or ordinance, such portion shall be deemed to be modified or altered to conform thereto. The parties hereto irrevocably agree to submit to\nthe jurisdiction and venue of the courts of the State of Ohio in any action or proceeding brought with respect to or in connection with this\nAgreement. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement constitutes the\nentire agreement of the parties with respect to the subject matter hereof. This Agreement may not be amended or modified otherwise than by a\nwritten agreement executed by the parties hereto or their respective successors and legal representatives\n(b) All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by\nregistered or certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive:\nAt the most recent address on file for the Executive at the Company.\nIf to the Company:\nCardinal Health, Inc.\n7000 Cardinal Place\nDublin, Ohio 43017\nAttention: Chief Legal Officer\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement. If any provision of this Agreement shall be held invalid or unenforceable in part, the remaining portion of such\nprovision, together with all other provisions of this Agreement, shall remain valid and enforceable and continue in full force and effect to the fullest\nextent consistent with the law.\n4\n(d) The Executive's or the Company's failure to insist upon strict compliance with any provision of this Agreement or the failure to\nassert any right the Executive or the Company may have hereunder, shall not be deemed to be a waiver of such provision or right or any other\nprovision or right of this Agreement.\nIN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and the Company has caused these presents to be executed in its\nname and on its behalf, all as of the day and year first above written.\n/s/ Michael Lynch\nMichael A. Lynch\nExecution Date: 10/28, 2008\nCARDINAL HEALTH, INC.\n/s/ George S. Barrett\nBy: George S. Barrett\nIts: Vice Chairman and CEO, HSCS\nExecution Date:\n, 2008\n5	EX-10.16 10 dex1016.htm CONFIDENTIALITY AND BUSINESS PROTECTION AGREEMENT\nExhibit 10.16\nConfidentiality and Business Protection Agreement\nThis Confidentiality and Business Protection Agreement (“Agreement”) is hereby entered into by and between Michael A. Lynch\n(“Executive”) and Cardinal Health, Inc., an Ohio Corporation (the “Company”) effective as of September 29, 2008. It is hereby agreed as follows:\n1. Consideration and Acknowledgements. The parties acknowledge that the provisions and covenants contained in this Agreement are ancillary\nand material to, and in consideration of, the employment letter agreement effective as of September 29, 2008 between the parties and that the\nlimitations contained herein are reasonable in geographic and temporal scope and do not impose a greater restriction or restraint than is necessary to\nprotect the goodwill and other legitimate business interests of the Company. The parties also acknowledge and agree that the provisions of this\nAgreement do not adversely affect the Executive’s ability to earn a living in any capacity that does not violate the covenants contained herein. The\nparties further acknowledge and agree that the provisions of Section 9 (a) below are accurate and necessary because (i) this Agreement Is entered\ninto in the State of Ohio, (ii) Ohio has a substantial relationship to the parties and to this transaction, (iii) Ohio is the headquarters state of the\nCompany, which has operations worldwide and has a compelling interest in having its employees treated uniformly, (iv) the use of Ohio law\nprovides certainty to the parties in any covenant litigation in the United States, and (v) enforcement of the provisions of this Agreement would not\nviolate any fundamental public policy of Ohio or any other jurisdiction.\n2. Confidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company and all of its subsidiaries,\npartnerships, joint ventures, limited liability companies, and other affiliates (collectively, the “Cardinal Group”), all secret or confidential\ninformation, knowledge or data relating to the Cardinal Group and its businesses (including, without limitation, any proprietary and not publicly\navailable information concerning any processes, methods, trade secrets, research secret data, costs, names of users or purchasers of their respective\nproducts or services, business methods, operating procedures or programs or methods of promotion and sale) that the Executive has obtained or\nobtains during the Executive’s employment by the Cardinal Group and that is not public knowledge (other than as a result of the Executive’s\nviolation of this Agreement) (“Confidential Information”). For the purposes of this Agreement, information shall not be deemed to be publicly\navailable merely because it is embraced by general disclosures or because individual features or combinations thereof are publicly available. The\nExecutive shall not communicate, divulge or disseminate Confidential information at any time during or after the Executive’s employment with the\nCardinal Group, except with prior written consent of the applicable Cardinal Group company, or as otherwise required by law or legal process. All\nrecords, files, memoranda, reports, customer lists, drawings, plans, documents and the like that the Executive uses, prepares or comes into contact\nwith during the course of the\nExecutive’s employment shall remain the sole property of the Company and/or the Cardinal Group, as applicable, and shall be turned over to the\napplicable Cardinal Group company upon termination of the Executive’s employment.\n3. Non-Recruitment of Cardinal Group Employees, etc. Executive shall not, at any time during the Restricted Period (as defined in this\nAgreement), without the prior written consent of the Company, engage in the following conduct (a “Solicitation”): (I) directly or indirectly contact,\nsolicit, recruit or employ (whether as an employee, officer, director, agent, consultant or independent contractor) any person who is or, at any time\nduring the previous twelve months was, an employee, representative, officer or director of the Cardinal Group; or (ii) take any action to encourage or\ninduce any employee, representative, officer or director of the Cardinal Group to cease their relationship with the Cardinal Group for any reason. A\n“Solicitation” does not include any recruitment of employees within or for the Cardinal Group. The “Restricted Period” means the period of\nExecutive’s employment with the Cardinal Group and the additional period ending twenty-four months after the Executive’s date of termination of\nemployment or date of retirement, as applicable.\n4. No Competition — Solicitation of Business. During the Restricted Period, the Executive shall not (either directly or indirectly or as an\nofficer, agent, employee, partner or director of any other company, partnership or entity) solicit, service, or accept on behalf of any competitor of the\nCardinal Group the business of (i) any customer of the Cardinal Group at the time of the Executive’s employment or date of termination of\nemployment, or (ii) any potential customer of the Cardinal Group which the Executive knew to be an identified, prospective purchaser of services or\nproducts of the Cardinal Group.\n5. No Competition — Employment by Competitor. During the Restricted Period, the Executive shall not invest in (other than in a publicly\ntraded company with a maximum investment of no more than 1% of outstanding shares), counsel, advise, or be otherwise engaged or employed by,\nany entity or enterprise that competes with the Cardinal Group, by developing, manufacturing or selling any product or service of a type,\nrespectively, developed, manufactured or sold by the Cardinal Group (each such person described, and not excepted, as a customer, potential\ncustomer or a competitor under Section 4 or this Section 5 of this Agreement is a “Competitor”).\n6. No Disparagement.\n(a) The Executive and the Company shall at all times refrain from taking actions or making statements, written or oral, that\n(A) denigrate, disparage or defame the goodwill or reputation of Executive or the Cardinal Group, as the case may be, or any of its trustees, officers,\nsecurity holders, partners, agents or former or current employees and directors, or (B) are intended to, or may be reasonably expected to, adversely\naffect the morale of the employees of the Cardinal Group. The Executive further agrees not to make any negative statements to third parties relating\nto the\n2\nExecutive’s employment or any aspect of the businesses of Cardinal Group and not to make any statements to third parties about the circumstances\nof the termination of the Executive’s employment, or about the Cardinal Group or its trustees, directors, officers, security holders, partners, agents or\nformer or current employees and directors, except as may be required by a court or governmental body,\n(b) The Executive further agrees that, following termination of employment for any reason, the Executive shall assist and cooperate with\nthe Company with regard to any matter or project in which the Executive was involved during the Executive’s employment with the Company,\nincluding but not limited to any litigation that may be pending or arise after such termination of employment, Further, the Executive agrees to notify\nthe Company at the earliest opportunity of any contact that is made by any third parties concerning any such matter or project. The Company shall\nnot unreasonably request such cooperation of Executive and shall cooperate with the Executive in scheduling any assistance by the Executive, taking\ninto account the Executive’s business and personal affairs, and shall compensate the Executive for any lost wages or expenses associated with such\ncooperation and assistance.\n7. Inventions. All plans, discoveries and improvements, whether patentable or unpatentable, made or devised by the Executive, whether alone\nor jointly with others, from the date of the Executive’s initial employment by the Company and continuing until the end of any period during which\nthe Executive is employed by the Cardinal Group, relating or pertaining in any way to the Executive’s employment with or the business of the\nCardinal Group, shall be promptly disclosed in writing to the Secretary of the Board and are hereby transferred to and shall redound to the benefit of\nthe Company, and shall become and remain its sole and exclusive property, The Executive agrees to execute any assignment to the Company or its\nnominee, of the Executive’s entire right, title and interest in and to any such discoveries and Improvements and to execute any other instruments and\ndocuments requisite or desirable in applying for and obtaining patents, trademarks or copyrights, at the expense of the Company, with respect thereto\nin the United States and in all foreign countries, that may be required by the Company. The Executive further agrees at all times to cooperate to the\nextent and in the manner required by the Company, in the prosecution or defense of any patent or copyright claims or any litigation, or other\nproceeding involving any trade secrets, processes, discoveries or Improvements covered by this Agreement, but all necessary expenses thereof shall\nbe paid by the Company.\n8. Acknowledgement and Enforcement, The Executive acknowledges and agrees that: (A) the purpose of the foregoing covenants, including\nwithout limitation the noncompetition covenants of Sections 4 and 5, is to protect the goodwill, trade secrets and other Confidential Information of\nthe Company; (B) because of the nature of the business in which the Cardinal Group is engaged and because of the nature of the Confidential\nInformation to which the Executive has access, the Company would suffer irreparable harm and it would be impractical and excessively difficult to\ndetermine the actual damages of the Cardinal Group in the event the Executive breached any of the\n3\ncovenants of this Agreement; and (C) remedies at law (such as monetary damages) for any breach of the Executive’s obligations under this\nAgreement would be inadequate. The Executive therefore agrees and consents that if the Executive commits any breach of a covenant under this\nAgreement or threatens to commit any such breach, the Company shall have the right (in addition to, and not in lieu of, any other right or remedy\nthat may be available to it) to temporary and permanent injunctive relief from a court of competent jurisdiction, without posting any bond or other\nsecurity and without the necessity of proof of actual damage.\n9. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without reference to principles\nof conflict of laws. If, under any such law, any portion of this Agreement is at any time deemed to be in conflict with any applicable statute, rule,\nregulation or ordinance, such portion shall be deemed to be modified or altered to conform thereto. The parties hereto irrevocably agree to submit to\nthe jurisdiction and venue of the courts of the State of Ohio in any action or proceeding brought with respect to or in connection with this\nAgreement. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement constitutes the\nentire agreement of the parties with respect to the subject matter hereof. This Agreement may not be amended or modified otherwise than by a\nwritten agreement executed by the parties hereto or their respective successors and legal representatives.\n(b) All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by\nregistered or certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive:\nAt the most recent address on file for the Executive at the Company.\nIf to the Company:\nCardinal Health, Inc.\n7000 Cardinal Place\nDublin, Ohio 43017\nAttention: Chief Legal Officer\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement. If any provision of this Agreement shall be held invalid or unenforceable in part, the remaining portion of such\nprovision, together with all other provisions of this Agreement, shall remain valid and enforceable and continue in full force and effect to the fullest\nextent consistent with the law.\n4\n(d) The Executive’s or the Company’s failure to insist upon strict compliance with any provision of this Agreement or the failure to\nassert any right the Executive or the Company may have hereunder, shall not be deemed to be a waiver of such provision or right or any other\nprovision or right of this Agreement.\nIN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and the Company has caused these presents to be executed in its\nname and on its behalf, all as of the day and year first above written.\n/s/ Michael Lynch\nMichael A. Lynch\nExecution Date: 10/28, 2008\nCARDINAL HEALTH, INC.\n/s/ George S. Barrett\nBy: George S. Barrett\nIts: Vice Chairman and CEO, HSCS\nExecution Date:\n, 2008\n5
+27399d0f17deeb8124b3ad8f3e4bb723.pdf	jurisdiction party term	Exhibit 10.2\nNon–Competition, Non–Solicitation, and Confidentiality Agreement\nThis Non–Competition, Non–Solicitation, and Confidentiality Agreement, dated as of\n, 2019 (this “Agreement”), is made by\nand among Glacier Bancorp, Inc. (“GBCI”), Glacier Bank, a wholly owned subsidiary of GBCI (“Glacier Bank”), Heritage Bancorp\n(“HB”), Heritage Bank of Nevada, a wholly owned subsidiary of HB (“Heritage Bank”), and the undersigned, each of whom is a\ndirector of HB and Heritage Bank (each, a “Director”).\nRecitals\nA. HB and Heritage Bank have entered into a Plan and Agreement of Merger, dated April 3, 2019 (the “Merger Agreement”), with\nGBCI and Glacier Bank. Under the terms of the Merger Agreement, HB will merge with and into GBCI, Heritage Bank will\nmerge with and into Glacier Bank (collectively, the “Merger”), and the former branches of Heritage Bank will operate as a\ndivision of Glacier Bank (the “Division”).\nB. The parties to this Agreement believe that the future success of GBCI, Glacier Bank, and the Division following the Merger\nrequires that no Director be affiliated in any substantial way with a Competing Business for a reasonable period of time after\nclosing of the Merger or, if applicable, termination of such Director’s service as a post-Merger member of the Division’s\nadvisory board (the “Advisory Board”).\nAgreement\nIn consideration of the parties’ performance under the Merger Agreement, each Director agrees as follows:\n1. Definitions. Capitalized terms not defined in this Agreement have the meaning assigned to those terms in the Merger\nAgreement. The following definitions also apply to this Agreement:\na. A “Competing Business” means any depository, financial institution, wealth management company, or trust company, or\nholding company thereof (including without limitation any start-up bank or bank in formation), operating anywhere within\nthe Covered Area.\nb. The “Covered Area” means Carson City, Nevada; Douglas County, Nevada; and Washoe County, Nevada.\nc. The “Term” means, with respect to each Director, the period of time beginning on the Effective Date and ending on the\nlater to occur of (i) two years after the Effective Date or (ii) if applicable, one year following the termination of any service\nby such Director as a post-Merger member of the Advisory Board.\n-1-\n2. Incorporation of Restrictive Covenants. Except as provided in Section 5 or 6 of this Agreement, each Director agrees to\ncomply with the restrictive covenants set forth in Section 3.a. and Section 3.b . of that certain Change in Control Agreement (each\na “Change in Control Agreement”) entered into by and among such Director, HB, and Heritage Bank for the period of time\nbeginning on the Effective Date and ending on the later to occur of (a) the expiration of the restrictive period with respect to such\nrestrictive covenants as set forth in Section 3.d . of such Director’s Change in Control Agreement or (b) if applicable, one year\nfollowing the termination of any service by such Director as a post-Merger member of the Advisory Board. Each Director also\nagrees that the restrictive covenants set forth in Section 3.a. and Section 3.b . of the Change in Control Agreement are hereby\namended to apply within the Covered Area. A copy of each such Change in Control Agreement will be retained by GBCI.\n3. Non-Solicitation. In addition, during the Term, each Director agrees not to, directly or indirectly, either for himself or herself or\nfor any other person, solicit or attempt to solicit: (a) any employees or independent contractors of GBCI or GBCI’s subsidiaries,\ndivisions, or affiliates to participate, as an employee or otherwise, in any manner in a Competing Business; (b) any customers,\nbusiness partners, or joint venturers of GBCI or GBCI’s subsidiaries, divisions, or affiliates to transfer their business to a\nCompeting Business or to reduce such customers’, business partners’ or joint venturers’ business or cease doing business with\nGBCI or GBCI’s subsidiaries, divisions, or affiliates; or (c) the termination of an employment or contractual relationship\nbetween GBCI or GBCI’s subsidiaries, divisions, or affiliates and any employee, independent contractor, customer, business\npartner, or joint venturer. Solicitation prohibited under this Section 3 includes solicitation by any means, including without\nlimitation meetings, letters, or other direct mailings, electronic communications of any kind, and internet communications;\nprovided, however, that nothing contained in this Section 3 is intended to prohibit general advertising or general solicitation not\ndirected at such employees, general contractors, customers, business partners, or joint venturers.\n4. Confidential Information.\na. Confidentiality. During and after the Term, each Director shall not at any time, directly or indirectly, divulge, reveal, or\ncommunicate any Confidential Information of HB, Heritage Bank, GBCI or GBCI’s subsidiaries, divisions, or affiliates\nobtained by the Director while serving as a director of HB and/or Heritage Bank (or, if applicable, as a post-Merger member\nof the Advisory Board) to any person or use any Confidential Information for his or her own benefit or for the benefit of any\nother person. For purposes of this Agreement, “Confidential Information” includes all secrets and other confidential\ninformation, knowledge, know-how, sales, financial information, customers, lists of customers and prospective customers,\nbroker lists, rate sheets, strategies, or products, as well as all documents, reports, and proposals relating to the same, with\nrespect to HB, Heritage Bank, GBCI, or GBCI’s subsidiaries, divisions, or affiliates. Notwithstanding the foregoing,\n“Confidential Information” does not include (i) information that is or becomes generally available to the public other than\nas a result of an unauthorized disclosure by the Director, (ii) information that was in the Director’s possession prior to\nserving as a director of HB and/or Heritage Bank or\n-2-\ninformation received by the Director from another person without any limitations on disclosure, but only if the Director had\nno reason to believe the other person was prohibited from using or disclosing the information by contractual or fiduciary\nobligation, or (iii) information that was independently developed by the Director without using any Confidential\nInformation of HB, Heritage Bank, GBCI, or GBCI’s subsidiaries, divisions, or affiliates.\nb. Defend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, 18 U.S .C . § 1833(b), a Director will not be\nheld criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made\n(i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for\nthe purpose of reporting or investigating a suspected violation of law, or (ii) is made in a complaint or other document filed\nin a proceeding, if such filing is made under seal.\nc. Legally Required Disclosures. Notwithstanding any provision of this Agreement to the contrary, a Director may disclose or\nreveal any information, whether including in whole or in part any Confidential Information, that such Director is required to\ndisclose or reveal under any applicable law or is otherwise required to disclose or reveal by any governmental authority (by\noral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand, or other similar process); provided, however, that such Director makes a good faith request that the confidentiality\nof the Confidential Information be preserved and, to the extent not prohibited by applicable law, gives GBCI prompt notice\nof such requirement in advance of such disclosure and exercises reasonable efforts to preserve the confidentiality of such\nConfidential Information, including, without limitation, by reasonably cooperating with GBCI to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded to such Confidential Information by\nthe governmental authority or other recipient of the Confidential Information. If, in the absence of a protective order (or\nother reliable assurance) or the receipt of a written waiver from GBCI, the Director is nonetheless legally compelled to\ndisclose Confidential Information to a governmental authority, the Director may disclose to such governmental authority\nonly that portion of the Confidential Information which is legally required to be disclosed.\n5. Requests for Consent. During the Term, prior to engaging in any manner in an activity that would result in a violation of the\nrestrictive covenants set forth in Section 3.a or 3.b . of the Change in Control Agreement or Section 3 of this Agreement, a\nDirector may request in writing that GBCI waive the restrictions incorporated into or set forth in this Agreement with respect to\na particular proposed activity. If GBCI determines, in its sole discretion, that such activity is acceptable, GBCI may provide such\nDirector with written consent to engage in such activity.\n-3-\n6. Passive Interest. Notwithstanding anything to the contrary contained herein, nothing in this Agreement will prevent a Director\nfrom owning two percent (2%) or less of any class of security of a Competing Business.\n7. Miscellaneous.\na. Entire Agreement. This Agreement (including each Director’s Change in Control Agreement) constitutes the entire\nunderstanding and agreement between the parties concerning its subject matter and supersedes and terminates all prior\nagreements, correspondence, representations, and/or understandings between the parties relating to its subject matter.\nb. Individual Obligations. The obligations of each of the signatories to this Agreement are independent of one another and are\nnot intended to be joint obligations of the undersigned. This Agreement is intended to be enforceable by GBCI and/or\nGlacier Bank against each Director individually.\nc. Severability. If any provision of this Agreement or the application of such provision to any person or circumstances will be\nheld invalid or unenforceable by a court of competent jurisdiction, such provision or application will be unenforceable only\nto the extent of such invalidity or unenforceability, and the remainder of the provision held invalid or unenforceable and the\napplication of such provision to persons or circumstances, other than the party as to which it is held invalid, and the\nremainder of this Agreement, will not be affected.\nd. Reformation. If any court determines that the obligations and restrictions set forth in this Agreement are unenforceable, then\nthe parties request such court to reform any unenforceable provisions to the maximum obligations or restrictions, term, and\nscope, as applicable, that such court finds enforceable.\ne. Expenses. Except as otherwise may be agreed in writing, all costs, fees, and expenses incurred in connection with this\nAgreement and the transactions contemplated hereby shall be paid by the party incurring such costs, fees, and expenses.\nf. Amendments; Waivers. Any provision of this Agreement may be amended or waived if, and only if, such amendment or\nwaiver is in writing and signed (i) in the case of an amendment, by GBCI and the Director to be bound by such amendment,\nand (ii) in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by any party in\nexercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.\n-4-\ng. Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of\nNevada, except to the extent that federal law may govern certain matters. The parties must bring any legal proceeding\narising out of this Agreement in the state courts situated in Kalispell, Montana or the federal district courts of the Missoula\nDivision for the State of Montana. Each party consents to and submits to the jurisdiction of any such court.\nh. Remedies. Any breach of this Agreement by a Director will entitle GBCI and/or Glacier Bank, together with their\nsuccessors and assigns, to injunctive relief and/or specific performance, as well as to any other legal or equitable remedies it\nmay be entitled to, it being agreed that money damages alone would be an inadequate remedy for such breach. The rights\nand remedies of the parties to this Agreement are cumulative and not alternative.\ni. Counterparts. This Agreement may be executed in one or more counterparts, including facsimile and/or scanned\ncounterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same\ndocument.\n[Signatures appear on the following pages]\n-5-\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nGLACIER BANCORP, INC.\nBy:Randall M. Chesler\nIts:President and CEO\nGLACIER BANK\nBy:Randall M. Chesler\nIts:President and CEO\nHERITAGE BANCORP\nBy:Stanley Wilmoth\nIts:President and CEO\nHERITAGE BANK OF\nNEVADA\nBy:Stanley Wilmoth\nIts:President and CEO\n[Director signatures appear on the following pages]\n[Signature Page to Non-Competition, Non-Solicitation, and Confidentiality Agreement]\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nDIRECTOR:\n[Director Signature Page to Non–Competition, Non–Solicitation, and Confidentiality Agreement]	Exhibit 10.2\nNon- C ompetition, Non- Solicitation, and C onfidentiality Agreement\nThis Non—Competition, Non— Solicitation, and Confidentiality Agreement, dated as of , 2019 (this ”Agreement"), is made by\nand among Glacier Bancorp, Inc. (”G BCI”), Glacier Bank, a wholly owned subsidiary of GBCI (”G lacier Bank"), Heritage Bancorp\n(”HB"), Heritage Bank of Nevada, a wholly owned subsidiary of HB (”Heritage Bank”), and the undersigned, each of whom is a\ndirector of HB and Heritage Bank (each, a ”Director").\nRecitals\nA. HB and Heritage Bank have entered into a Plan and A greement of Merger, dated April 3, 2019 (the ”Merger Agreement”), with\nGBCI and Glacier Bank. Under the terms of the Merger Agreement, HB will merge with and into GBCI, Heritage Bank will\nmerge with and into Glacier Bank (collectively, the ”M erger"), and the former branches of Heritage Bank will operate as a\ndivision of Glacier B ank (the ”Division").\nB. The parties to this Agreement believe that the future success of GBCI, Glacier Bank, and the Division following the Merger\nrequires that no Director be affiliated in any substantial way with a Competing Business for a reasonable period of time after\nclosing of the Merger or, if applicable, termination of such Director’ s service as a post-Merger member of the Division’ s\nadvisory board (the ”Advisory Board”).\nAgreement\nIn consideration of the parties' performance under the Merger Agreement, each Director agrees as follows:\n1. Definitions. Capitalized terms not defined in this Agreement have the meaning assigned to those terms in the Merger\nAgreement. The following definitions also apply to this Agreement:\na. A ”Competing Business” means any depository, financial institution, wealth management company, or trust company, or\nholding company thereof (including without limitation any start-up bank or bank in formation), operating anywhere within\nthe Covered Area.\nb. The ”Covered Area” means Carson City, Nevada; D ouglas County, Nevada; and Washoe County, Nevada.\nc. The ”Term” means, with respect to each Director, the period of time beginning on the Effective Date and ending on the\nlater to occur of (i) two years after the Effective D ate or (ii) if applicable, one year following the termination of any service\nby such Director as a post-Merger member of the Advisory Board.\n \nIncorporation of Restrictive Covenants. Except as provided in Section 5 or 6 of this Agreement, each Director agrees to\ncomply with the restrictive covenants set forth in Section 3.a. and Section 3b. of that certain Change in Control Agreement (each\na ”C hange in Control Agreement") entered into by and among such Director, HB, and Heritage Bank for the period of time\nbeginning on the Effective Date and ending on the later to occur of (a) the expiration of the restrictive period with respect to such\nrestrictive covenants as set forth in Section 3d. of such Director’ s Change in Control Agreement or (b) if applicable, one year\nfollowing the termination of any service by such Director as a post-Merger member of the Advisory Board. Each Director also\nagrees that the restrictive covenants set forth in Section 3.a. and Section 3b. of the Change in Control Agreement are hereby\namended to apply within the Covered Area. A copy of each such Change in Control Agreement will be retained by GBCI.\nNon-Solicitation. In addition, during the Term, each Director agrees not to, directly or indirectly, either for himself or herself or\nfor any other person, solicit or attempt to solicit: (a) any employees or independent contractors of GBCI or GBCI’ s subsidiaries,\ndivisions, or affiliates to participate, as an employee or otherwise, in any manner in a Competing Business; (b) any customers,\nbusiness partners, or joint venturers of G B CI or G B CI’ s subsidiaries, divisions, or affiliates to transfer their business to a\nCompeting Business or to reduce such customers’, business partners’ or joint venturers’ business or cease doing business with\nG B CI or G B CI’ s subsidiaries, divisions, or affiliates; or (c) the termination of an employment or contractual relationship\nbetween G B CI or G B CI’ s subsidiaries, divisions, or affiliates and any employee, independent contractor, customer, business\npartner, or joint venturer. Solicitation prohibited under this Section 3 includes solicitation by any means, including without\nlimitation meetings, letters, or other direct mailings, electronic communications of any kind, and intemet communications;\nprovided, however, that nothing contained in this Section 3 is intended to prohibit general advertising or general solicitation not\ndirected at such employees, general contractors, customers, business partners, or joint venturers.\nC onfidential Information.\na. Confidentiality. During and after the Term, each Director shall not at any time, directly or indirectly, divulge, reveal, or\ncommunicate any Confidential Information of HB, Heritage B ank, G B CI or G B CI’ s subsidiaries, divisions, or affiliates\nobtained by the Director while serving as a director of HB and/or Heritage Bank (or, if applicable, as a post-Merger member\nof the Advisory Board) to any person or use any Confidential Information for his or her own benefit or for the benefit of any\nother person. For purposes of this A greement, ”C onfidential Information” includes all secrets and other confidential\ninformation, knowledge, know-how, sales, financial information, customers, lists of customers and prospective customers,\nbroker lists, rate sheets, strategies, or products, as well as all documents, reports, and proposals relating to the same, with\nrespect to HB, Heritage Bank, G BCI, or G B CI’ s subsidiaries, divisions, or affiliates. Notwithstanding the foregoing,\n”C onfidential Information” does not include (i) information that is or becomes generally available to the public other than\nas a result of an unauthorized disclosure by the Director, (ii) information that was in the Director’ s possession prior to\nserving as a director of HB and/or Heritage Bank or\nC.  \ninformation received by the Director from another person without any limitations on disclosure, but only if the Director had\nno reason to believe the other person was prohibited from using or disclosing the information by contractual or fiduciary\nobligation, or (iii) information that was independently developed by the Director without using any Confidential\nInformation of HB, Heritage B ank, G B CI, or G B CI’ 5 subsidiaries, divisions, or affiliates.\nDefend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1833(b), a Director will not be\nheld criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made\n(i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for\nthe purpose of reporting or investigating a suspected violation of law, or (ii) is made in a complaint or other document filed\nin a proceeding, if such filing is made under seal.\nLegally Required Disclosures. Notwithstanding any provision of this Agreement to the contrary, a Director may disclose or\nreveal any information, whether including in whole or in part any Confidential Information, that such Director is required to\ndisclose or reveal under any applicable law or is otherwise required to disclose or reveal by any governmental authority (by\noral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand, or other similar process); provided, however, that such Director makes a good faith request that the confidentiality\nof the Confidential Information be preserved and, to the extent not prohibited by applicable law, gives GBCI prompt notice\nof such requirement in advance of such disclosure and exercises reasonable efforts to preserve the confidentiality of such\nConfidential Information, including, without limitation, by reasonably cooperating with GBCI to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded to such Confidential Information by\nthe governmental authority or other recipient of the Confidential Information. If, in the absence of a protective order (or\nother reliable assurance) or the receipt of a written waiver from G BCI, the Director is nonetheless legally compelled to\ndisclose Confidential Information to a governmental authority, the Director may disclose to such governmental authority\nonly that portion of the Confidential Information which is legally required to be disclosed.\nRequests for Consent. During the Term, prior to engaging in any manner in an activity that would result in a violation of the restrictive covenants set forth in Section 3.a or 3b. of the Change in Control Agreement or Section 3 of this Agreement, a Director may request in writing that GBCI waive the restrictions incorporated into or set forth in this Agreement with respect to a particular proposed activity. If GBCI determines, in its sole discretion, that such activity is acceptable, GBCI may provide such Director with written consent to engage in such activity.\f \nPassive Interest. Notwithstanding anything to the contrary contained herein, nothing in this Agreement will prevent a Director\nfrom owning two percent (2%) or less of any class of security of a Competing Business.\nMiscellaneous.\na. Entire Agreement. This Agreement (including each Director’ s Change in Control Agreement) constitutes the entire\nunderstanding and agreement between the parties concerning its subject matter and supersedes and terminates all prior\nagreements, correspondence, representations, and/or understandings between the parties relating to its subject matter.\nb. Individual Obligations. The obligations of each of the signatories to this A greement are independent of one another and are\nnot intended to be joint obligations of the undersigned. This Agreement is intended to be enforceable by GBCI and/or\nGlacier Bank against each Director individually.\nc. Severabilily. If any provision of this Agreement or the application of such provision to any person or circumstances will be\nheld invalid or unenforceable by a court of competent jurisdiction, such provision or application will be unenforceable only\nto the extent of such invalidity or unenforceability, and the remainder of the provision held invalid or unenforceable and the\napplication of such provision to persons or circumstances, other than the party as to which it is held invalid, and the\nremainder of this A greement, will not be affected.\nd. Reformation. If any court determines that the obligations and restrictions set forth in this Agreement are unenforceable, then\nthe parties request such court to reform any unenforceable provisions to the maximum obligations or restrictions, term, and\nscope, as applicable, that such court finds enforceable.\ne. Expenses. Except as otherwise may be agreed in writing, all costs, fees, and expenses incurred in connection with this\nAgreement and the transactions contemplated hereby shall be paid by the party incurring such costs, fees, and expenses.\nf. Amendments; Waivers. Any provision of this A greement may be amended or waived if, and only if, such amendment or\nwaiver is in writing and signed (i) in the case of an amendment, by GBCI and the Director to be bound by such amendment,\nand (ii) in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by any party in\nexercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.\ng. h. i.\n \nGoverning Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of\nNevada, except to the extent that federal law may govern certain matters. The parties must bring any legal proceeding\narising out of this Agreement in the state courts situated in Kalispell, Montana or the federal district courts of the Missoula\nDivision for the State of Montana. Each party consents to and submits to the jurisdiction of any such court.\nRemedies. Any breach of this A greement by a Director will entitle G B Cl and/or Glacier B ank, together with their\nsuccessors and assigns, to injunctive relief and/or specific performance, as well as to any other legal or equitable remedies it\nmay be entitled to, it being agreed that money damages alone would be an inadequate remedy for such breach. The rights\nand remedies of the parties to this Agreement are cumulative and not alternative.\nCountemarts. This A greement may be executed in one or more counterparts, including facsimile and/or scanned\ncounterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same\ndocument.\n[Signatures appear on the following pages]\n \nIN WITNESS WHEREOE, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nGLACIER BANCORP, INC. HERITAGE BANCORP\nByzKandaII IVI. Ches er By:Sfin ey W1 moth\nIts:President and CEO Its:President and CEO\nGLACIER BANK HERITAGE BANK OF\nNEVADA\nByzKandaII IVI. Ches er\nIts:President and CEO By:Sfin ey W1 moth\nIts:President and CEO\n[Director signatures appear on the following pages]\n[Signature Page to Non-Competition, Non-Solicitation, and Confidentiality Agreement]\n \nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nDIRECTOR:\n[Director Signature Page to Non—Competition, Non— Solicitation, and Confidentiality Agreement]	Exhibit 10.2\nNon-Competition on-Solicitation, and Confidentiality Agreement\nThis Non-Competition, Non-Solicitation, and Confidentiality A greement, dated as of\n2019 (this "Agreement"), is made by\nand among Glacier Bancorp, Inc. ("GBCI"), Glacier Bank, a wholly owned subsidiary of GBCI ("Glacier Bank"), Heritage Bancorp\n("HB"), Heritage Bank of Nevada, a wholly owned subsidiary of HB ("Heritage Bank"), and the undersigned, each of whom is a\ndirector of HB and Heritage Bank (each, a "Director").\nRecitals\nA. HB and Heritage Bank have entered into a Plan and A greement of Merger, dated A pril 3, 2019 (the "Merger Agreement"), with\nGBCI and Glacier Bank. Under the terms of the Merger greement, HB will merge with and into GBCI, Heritage Bank will\nmerge with and into Glacier Bank (collectively, the "Merger"), and the former branches of Heritage Bank will operate as a\ndivision of Glacier Bank (the "Division").\nB. The parties to this greement believe that the future success of GBCI, Glacier Bank, and the Division following the Merger\nrequires that no Director be affiliated in any substantia way with a Competing Business for a reasonable period of time after\nclosing of the Merger or, if applicable, termination of such Director's service as a post: t-Merger member of the Division's\nadvisory board (the "Advisory Board").\nAgreement\nIn consideration of the parties' performance under the Merger A greement, each Director agrees as follows:\n1.\nDefinitions. Capitalized terms not defined in this A greement have the meaning assigned to those terms in the Merger\nA greement. The following definitions also apply to this Agreement:\na.\nA "Competing Business" means any depository, financial institution, wealth management company, or trust company, or\nholding company thereof (including without limitation any start-up bank or bank in formation), operating anywhere within\nthe Covered Area.\nb.\nThe "Covered Area" means Carson City, Nevada; Douglas County, Nevada; and Washoe County, Nevada.\nc.\nThe "Term" means, with respect to each Director, the period of time beginning on the Effective Date and ending on the\nlater to occur of (i) two years after the Effective D ate or (ii) if applicable, one year following the termination of any service\nby such Director as a st-Merger member of the Advisory Board.\n- 1\n2.\nIncorporation of Restrictive Covenants. Except as provided in Section 5 or 6 of this Agreement, each Director agrees to\ncomply with the restrictive covenants set forth in Section 3.a. and Section 3.b. of that certain Change in Control A greement (each\na "Change in Control Agreement") entered into by and among such Director, HB, and Heritage Bank for the period of time\nbeginning on the Effective Date and ending on the later to occur of (a) the expiration of the restrictive period with respect to such\nrestrictive covenants as set forth in Section 3.d of such Director's Change in Control A greement or (b) if applicable, one year\nfollowing the termination of any service by such Director as a st-Merger member of the dvisory Board. Each Director also\nagrees that the restrictive covenants set forth in Section 3.a. and Section 3.b. of the Change in Control greement are hereby\namended to apply within the Covered A rea. A copy of each such Change in Control A greement will be retained by GBCI.\n3. Non-Solicitation. In addition, during the Term, each Director agrees not to, directly or indirectly, either for himself or herself or\nfor any other person, solicit or attempt to solicit: (a) any employees or independent contractors of GBCI or GBCI's subsidiaries,\ndivisions, or affiliates to participate, as an employee or otherwise, in any manner in a Competing Business; (b) any customers,\nbusiness partners, or joint venturers of GBCI or GBCI's subsidiaries, divisions, or affiliates to transfer their business to\na\nCompeting Business or to reduce such customers' business partners' or joint venturers' business or cease doing business with\nGBCI or GBCI's subsidiaries, divisions, or affiliates; or (c) the termination of an employment or contractual relationship\nbetween GBCI or GBCI's subsidiaries, divisions, or affiliates and any employee, independent contractor, customer, business\npartner, or joint venturer. Solicitation prohibited under this Section 3 includes solicitation by any means, including without\nlimitation meetings, letters, or other direct mailings, electronic communications of any kind, and internet communications;\nprovided, however, that nothing contained in this Section 3 is intended to prohibit general advertising or general solicitation not\ndirected at such employees, general contractors, customers, business partners, or joint venturers.\n4.\nConfidential Information.\na.\nConfidentiality During and after the Term, each Director shall not at any time, directly or indirectly, divulge, reveal, or\ncommunicate any Confidential Information of HB, Heritage Bank, GBCI or GBCI's subsidiaries, divisions, or affiliates\nobtained by the Director while serving as a director of HB and/or Heritage Bank (or, if applicable, as a post-Merger member\nof the Advisory Board) to any person or use any Confidential Information for his or her own benefit or for the benefit of any\nother person. For purposes of this greement, "Confidential Information" includes all secrets and other confidential\ninformation, knowledge, know-how, sales, financial information, customers, lists of customers and prospective customers,\nbroker lists, rate sheets, strategies, or products, as well as all documents, reports, and proposals relating to the same, with\nrespect to HB, Heritage Bank, GBCI, or GBCI's subsidiaries divisions, or affiliates. Notwithstanding the foregoing,\n"C onfidential Information" does not include (i) information that is or becomes generally available to the public other than\nas a result of an unauthorized disclosure by the Director, (ii) information that was in the Director's possession prior to\nserving as a director of HB and/or Heritage Bank or\n2\ninformation received by the Director from another person without any limitations on disclosure, but only if the Director had\nno reason to believe the other person was prohibited from using or disclosing the information by contractual or fiduciary\nobligation, or (iii) information that was independently developed by the Director without using any Confidential\nInformation of HB, Heritage Bank, GBCI, or GBCI's subsidiaries, divisions, or affiliates.\nb.\nDefend Trade Secrets Act. Pursuant to the Defend Trade Secrets A ct of 2016, 18 U.S.C. S 1833(b), a Director will not be\nheld criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made\n(i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for\nthe purpose of reporting or investigating a suspected violation of law, or (ii) is made in a complaint or other document filed\nin a proceeding, if such filing is made under seal.\nC.\nLegally Required Disclosures. Notwithstanding any provision of this A greement to the contrary, a Director may disclose or\nreveal any information, whether including in whole or in part any Confidential Information that such Director is required to\ndisclose or reveal under any applicable law or is otherwise required to disclose or reveal by any governmental authority (by\noral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand, or other similar process); provided however, that such Director makes a good faith request that the confidentiality\nof the Confidential Information be preserved and, to the extent not prohibited by applicable law, gives GBCI prompt notice\nof such requirement in advance of such disclosure and exercises reasonable efforts to preserve the confidentiality of such\nConfidential Information, including, without limitation, by reasonably cooperating with GBCI to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded to such Confidential Information by\nthe governmental authority or other recipient of the Confidential Information. If, in the absence of a protective order (or\nother reliable assurance) or the receipt of a written waiver from GBCI, the Director is nonetheless legally compelled to\ndisclose Confidential Information to a governmental authority, the Director may disclose to such governmental authority\nonly that portion of the Confidential Information which is legally required to be disclosed.\n5.\nRequests for Consent. During the Term, prior to engaging in any manner in an activity that would result in a violation of the\nrestrictive covenants set forth in Section 3.a or 3.b. of the Change in Control A greement or Section 3 of this A greement, a\nDirector may request in writing that GBCI waive the restrictions incorporated into or set forth in this A greement with respect to\na particular proposed activity. If GBCI determines, in its sole discretion, that such activity is acceptable, GBCI may provide such\nDirector with written consent to engage in such activity.\n3\n6.\nPassive Interest. Notwithstanding anything to the contrary contained herein, nothing in this A greement will prevent a Director\nfrom owning two percent (2%) or less of any class of security of a Competing Business.\n7. Miscellaneous.\na. Entire A greement. This A greement (including each Director's Change in Control A greement) constitutes the entire\nunderstanding and agreement between the parties concerning its subject matter and supersedes and terminates all prior\nagreements, correspondence, representations, and/or understandings between the parties relating to its subject matter.\nb.\nIndividual Obligations. The obligations of each of the signatories to this A greement are independent of one another and are\nnot intended to be joint obligations of the undersigned. This A greement is intended to be enforceable by GBCI and/or\nGlacier Bank against each Director individually.\nC.\nSeverability. If any provision of this A greement or the application of such provision to any person or circumstances will be\nheld invalid or unenforceable by a court of competent jurisdiction, such provision or application will be unenforceable only\nto the extent of such invalidity or unenforceability, and the remainder of the provision held invalid or unenforceable and the\napplication of such provision to persons or circumstances, other than the party as to which it is held invalid, and the\nremainder of this Agreement, will not be affected.\nd.\nReformation. If any court determines that the obligations and restrictions set forth in this A greement are unenforceable, then\nthe parties request such court to reform any unenforceable provisions to the maximum obligations or restrictions, term, and\nscope, as applicable, that such court finds enforceable.\ne.\nExpenses. Except as otherwise may be agreed in writing, all costs, fees, and expenses incurred in connection with this\nA greement and the transactions contemplated hereby shall be paid by the party incurring such costs, fees, and expenses.\nf.\nA mendments; Waivers Any provision of this A greement may be amended or waived if, and only if, such amendment or\nwaiver is in writing and signed (i) in the case of an amendment, by GBCI and the Director to be bound by such amendment,\nand (ii) in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by any party in\nexercising any right, power, or privilege under this A greement shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.\n4\ng. Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of\nNevada, except to the extent that federal law may govern certain matters. The parties must bring any legal proceeding\narising out of this A greement in the state courts situated in Kalispell, Montana or the federal district courts of the Missoula\nDivision for the State of Montana. Each party consents to and submits to the jurisdiction of any such court\nh. Remedies. Any breach of this Agreement by a Director will entitle GBCI and/or Glacier Bank, together with their\nsuccessors and assigns, to injunctive relief and/or specific performance, as well as to any other legal or equitable remedies it\nmay be entitled to, it being agreed that money damages alone would be an inadequate remedy for such breach. The rights\nand remedies of the parties to this A greement are cumulative and not altemative.\ni.\nCounterparts. This A greement may be executed in one or more counterparts, including facsimile and/or scanned\ncounterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same\ndocument.\n[Signatures appear on the following pages]\n- 5\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nGLACIER BANCORP, INC.\nHERITAGE BANCORP\nBy:Randall M. Chesler\nBy:Stanley Wilmoth\nIts:President and CEO\nIts: :President and CEO\nGLACIER BANK\nHERITAGE BANK OF\nNEVADA\nBy:Randall M. Chesier\nIts:President and CEO\nBy:Stanley Wilmoth\nIts:President and CEO\n[Director signatures appear on the following pages]\n[Signature Page to Non-Competition, Non-Solicitation, and Confidentiality Agreement]\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nDIRECTOR:\n[Director Signature Page to Non-Competition, Non-Solicitation, and Confidentiality Agreement]	Exhibit 10.2\nNon–Competition, Non–Solicitation, and Confidentiality Agreement\nThis Non–Competition, Non–Solicitation, and Confidentiality Agreement, dated as of\n, 2019 (this “Agreement”), is made by\nand among Glacier Bancorp, Inc. (“GBCI”), Glacier Bank, a wholly owned subsidiary of GBCI (“Glacier Bank”), Heritage Bancorp\n(“HB”), Heritage Bank of Nevada, a wholly owned subsidiary of HB (“Heritage Bank”), and the undersigned, each of whom is a\ndirector of HB and Heritage Bank (each, a “Director”).\nRecitals\nA. HB and Heritage Bank have entered into a Plan and Agreement of Merger, dated April 3, 2019 (the “Merger Agreement”), with\nGBCI and Glacier Bank. Under the terms of the Merger Agreement, HB will merge with and into GBCI, Heritage Bank will\nmerge with and into Glacier Bank (collectively, the “Merger”), and the former branches of Heritage Bank will operate as a\ndivision of Glacier Bank (the “Division”).\nB. The parties to this Agreement believe that the future success of GBCI, Glacier Bank, and the Division following the Merger\nrequires that no Director be affiliated in any substantial way with a Competing Business for a reasonable period of time after\nclosing of the Merger or, if applicable, termination of such Director’s service as a post-Merger member of the Division’s\nadvisory board (the “Advisory Board”).\nAgreement\nIn consideration of the parties’ performance under the Merger Agreement, each Director agrees as follows:\n1. Definitions. Capitalized terms not defined in this Agreement have the meaning assigned to those terms in the Merger\nAgreement. The following definitions also apply to this Agreement:\na. A “Competing Business” means any depository, financial institution, wealth management company, or trust company, or\nholding company thereof (including without limitation any start-up bank or bank in formation), operating anywhere within\nthe Covered Area.\nb. The “Covered Area” means Carson City, Nevada; Douglas County, Nevada; and Washoe County, Nevada.\nc. The “Term” means, with respect to each Director, the period of time beginning on the Effective Date and ending on the\nlater to occur of (i) two years after the Effective Date or (ii) if applicable, one year following the termination of any service\nby such Director as a post-Merger member of the Advisory Board.\n-1-\n2. Incorporation of Restrictive Covenants. Except as provided in Section 5 or 6 of this Agreement, each Director agrees to\ncomply with the restrictive covenants set forth in Section 3.a. and Section 3.b . of that certain Change in Control Agreement (each\na “Change in Control Agreement”) entered into by and among such Director, HB, and Heritage Bank for the period of time\nbeginning on the Effective Date and ending on the later to occur of (a) the expiration of the restrictive period with respect to such\nrestrictive covenants as set forth in Section 3.d . of such Director’s Change in Control Agreement or (b) if applicable, one year\nfollowing the termination of any service by such Director as a post-Merger member of the Advisory Board. Each Director also\nagrees that the restrictive covenants set forth in Section 3.a. and Section 3.b . of the Change in Control Agreement are hereby\namended to apply within the Covered Area. A copy of each such Change in Control Agreement will be retained by GBCI.\n3. Non-Solicitation. In addition, during the Term, each Director agrees not to, directly or indirectly, either for himself or herself or\nfor any other person, solicit or attempt to solicit: (a) any employees or independent contractors of GBCI or GBCI’s subsidiaries,\ndivisions, or affiliates to participate, as an employee or otherwise, in any manner in a Competing Business; (b) any customers,\nbusiness partners, or joint venturers of GBCI or GBCI’s subsidiaries, divisions, or affiliates to transfer their business to a\nCompeting Business or to reduce such customers’, business partners’ or joint venturers’ business or cease doing business with\nGBCI or GBCI’s subsidiaries, divisions, or affiliates; or (c) the termination of an employment or contractual relationship\nbetween GBCI or GBCI’s subsidiaries, divisions, or affiliates and any employee, independent contractor, customer, business\npartner, or joint venturer. Solicitation prohibited under this Section 3 includes solicitation by any means, including without\nlimitation meetings, letters, or other direct mailings, electronic communications of any kind, and internet communications;\nprovided, however, that nothing contained in this Section 3 is intended to prohibit general advertising or general solicitation not\ndirected at such employees, general contractors, customers, business partners, or joint venturers.\n4. Confidential Information.\na. Confidentiality. During and after the Term, each Director shall not at any time, directly or indirectly, divulge, reveal, or\ncommunicate any Confidential Information of HB, Heritage Bank, GBCI or GBCI’s subsidiaries, divisions, or affiliates\nobtained by the Director while serving as a director of HB and/or Heritage Bank (or, if applicable, as a post-Merger member\nof the Advisory Board) to any person or use any Confidential Information for his or her own benefit or for the benefit of any\nother person. For purposes of this Agreement, “Confidential Information” includes all secrets and other confidential\ninformation, knowledge, know-how, sales, financial information, customers, lists of customers and prospective customers,\nbroker lists, rate sheets, strategies, or products, as well as all documents, reports, and proposals relating to the same, with\nrespect to HB, Heritage Bank, GBCI, or GBCI’s subsidiaries, divisions, or affiliates. Notwithstanding the foregoing,\n“Confidential Information” does not include (i) information that is or becomes generally available to the public other than\nas a result of an unauthorized disclosure by the Director, (ii) information that was in the Director’s possession prior to\nserving as a director of HB and/or Heritage Bank or\n-2-\ninformation received by the Director from another person without any limitations on disclosure, but only if the Director had\nno reason to believe the other person was prohibited from using or disclosing the information by contractual or fiduciary\nobligation, or (iii) information that was independently developed by the Director without using any Confidential\nInformation of HB, Heritage Bank, GBCI, or GBCI’s subsidiaries, divisions, or affiliates.\nb. Defend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, 18 U.S .C . § 1833(b), a Director will not be\nheld criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made\n(i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for\nthe purpose of reporting or investigating a suspected violation of law, or (ii) is made in a complaint or other document filed\nin a proceeding, if such filing is made under seal.\nc. Legally Required Disclosures. Notwithstanding any provision of this Agreement to the contrary, a Director may disclose or\nreveal any information, whether including in whole or in part any Confidential Information, that such Director is required to\ndisclose or reveal under any applicable law or is otherwise required to disclose or reveal by any governmental authority (by\noral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand, or other similar process); provided, however, that such Director makes a good faith request that the confidentiality\nof the Confidential Information be preserved and, to the extent not prohibited by applicable law, gives GBCI prompt notice\nof such requirement in advance of such disclosure and exercises reasonable efforts to preserve the confidentiality of such\nConfidential Information, including, without limitation, by reasonably cooperating with GBCI to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded to such Confidential Information by\nthe governmental authority or other recipient of the Confidential Information. If, in the absence of a protective order (or\nother reliable assurance) or the receipt of a written waiver from GBCI, the Director is nonetheless legally compelled to\ndisclose Confidential Information to a governmental authority, the Director may disclose to such governmental authority\nonly that portion of the Confidential Information which is legally required to be disclosed.\n5. Requests for Consent. During the Term, prior to engaging in any manner in an activity that would result in a violation of the\nrestrictive covenants set forth in Section 3.a or 3.b . of the Change in Control Agreement or Section 3 of this Agreement, a\nDirector may request in writing that GBCI waive the restrictions incorporated into or set forth in this Agreement with respect to\na particular proposed activity. If GBCI determines, in its sole discretion, that such activity is acceptable, GBCI may provide such\nDirector with written consent to engage in such activity.\n-3-\n6. Passive Interest. Notwithstanding anything to the contrary contained herein, nothing in this Agreement will prevent a Director\nfrom owning two percent (2%) or less of any class of security of a Competing Business.\n7. Miscellaneous.\na. Entire Agreement. This Agreement (including each Director’s Change in Control Agreement) constitutes the entire\nunderstanding and agreement between the parties concerning its subject matter and supersedes and terminates all prior\nagreements, correspondence, representations, and/or understandings between the parties relating to its subject matter.\nb. Individual Obligations. The obligations of each of the signatories to this Agreement are independent of one another and are\nnot intended to be joint obligations of the undersigned. This Agreement is intended to be enforceable by GBCI and/or\nGlacier Bank against each Director individually.\nc. Severability. If any provision of this Agreement or the application of such provision to any person or circumstances will be\nheld invalid or unenforceable by a court of competent jurisdiction, such provision or application will be unenforceable only\nto the extent of such invalidity or unenforceability, and the remainder of the provision held invalid or unenforceable and the\napplication of such provision to persons or circumstances, other than the party as to which it is held invalid, and the\nremainder of this Agreement, will not be affected.\nd. Reformation. If any court determines that the obligations and restrictions set forth in this Agreement are unenforceable, then\nthe parties request such court to reform any unenforceable provisions to the maximum obligations or restrictions, term, and\nscope, as applicable, that such court finds enforceable.\ne. Expenses. Except as otherwise may be agreed in writing, all costs, fees, and expenses incurred in connection with this\nAgreement and the transactions contemplated hereby shall be paid by the party incurring such costs, fees, and expenses.\nf. Amendments; Waivers. Any provision of this Agreement may be amended or waived if, and only if, such amendment or\nwaiver is in writing and signed (i) in the case of an amendment, by GBCI and the Director to be bound by such amendment,\nand (ii) in the case of a waiver, by the party against whom the waiver is to be effective. No failure or delay by any party in\nexercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.\n-4-\ng. Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of\nNevada, except to the extent that federal law may govern certain matters. The parties must bring any legal proceeding\narising out of this Agreement in the state courts situated in Kalispell, Montana or the federal district courts of the Missoula\nDivision for the State of Montana. Each party consents to and submits to the jurisdiction of any such court.\nh. Remedies. Any breach of this Agreement by a Director will entitle GBCI and/or Glacier Bank, together with their\nsuccessors and assigns, to injunctive relief and/or specific performance, as well as to any other legal or equitable remedies it\nmay be entitled to, it being agreed that money damages alone would be an inadequate remedy for such breach. The rights\nand remedies of the parties to this Agreement are cumulative and not alternative.\ni. Counterparts. This Agreement may be executed in one or more counterparts, including facsimile and/or scanned\ncounterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same\ndocument.\n[Signatures appear on the following pages]\n-5-\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nGLACIER BANCORP, INC.\nBy:Randall M. Chesler\nIts:President and CEO\nGLACIER BANK\nBy:Randall M. Chesler\nIts:President and CEO\nHERITAGE BANCORP\nBy:Stanley Wilmoth\nIts:President and CEO\nHERITAGE BANK OF\nNEVADA\nBy:Stanley Wilmoth\nIts:President and CEO\n[Director signatures appear on the following pages]\n[Signature Page to Non-Competition, Non-Solicitation, and Confidentiality Agreement]\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nDIRECTOR:\n[Director Signature Page to Non–Competition, Non–Solicitation, and Confidentiality Agreement]
+293f59373f6a966b13cd7463b4617a6f.pdf	jurisdiction party	EXHIBIT 10.1\nFULL AND GENERAL MUTUAL RELEASE,\nSETTLEMENT AND CONFIDENTIALITY AGREEMENT\nThis FULL AND GENERAL RELEASE, , Settlement and Confidentiality Agreement (hereinafter this “Agreement”) is entered into between RMS TITANIC, INC .\n(“RMST”) and PREMIER EXHIBITIONS, INC . (“Premier”, and hereinafter collectively with RMST referred to as “the Company”) , and THOMAS ZALLER\n(“Zaller”) , IMAGINE EXHIBITIONS , INC. , a Georgia corporation (“Imagine-Georgia”), IMAGINE EXHIBITIONS , INC. , a Nevada corporation (“Imagine-Nevada”),\nIMAGINE EXHIBITIONS PTE, LTD . (“Imagine PTE”) , and TZ, INC . (collectively, “Imagine”) and KINGSMEN EXHIBITS PTE LTD. and its parent company,\nKINGSMEN CREATIVE, LTD . (collectively “Kingsmen”) and altogether collectively referred to as the “Parties. ”\nWHEREAS, RMST and Premier, are Florida corporations whose principal places of business are in Atlanta, Georgia, and who present museum quality exhibitions\nfeaturing artifacts recovered from the wreck site of the RMS Titanic (“the RMST Exhibition”); and\nWHEREAS, on or about June 13, 2011 the Company entered into an agreement to present the RMST Exhibition in Singapore;\nWHEREAS, Zaller is a former employee of the Company who resides in Atlanta, Georgia, and who is the CEO and sole shareholder for Imagine-Georgia,\nImagine-Nevada, Imagine PTE, and TZ, Inc. (collectively, “Imagine”), which companies are engaged in the entertainment business, and, among other things,\nprovide exhibitions at museums and other public venues, including their own Titanic exhibition (“the Imagine Exhibition”); and\nWHEREAS, Kingsmen are Singapore companies whose business operations include the design, production and construction of interiors, including for exhibitions;\nand,\nWHEREAS, RMST, TZ, Inc. , Imagine PTE, Zaller and Kingsmen were all involved in the staging and presentation of the RMST Exhibition in Singapore in 2011\nand 2012, and during which time RMST alleges that it provided Zaller and Kingsmen certain trade secrets, intellectual property and other confidential and\nproprietary information solely for use in the Singapore exhibition; and\nWHEREAS, following the period when the RMST Exhibition was being presented in Singapore, Imagine-PTE and Kingsmen entered into an agreement for the\npresentation of the Imagine Exhibition in Macau, and presented the Imagine Exhibition in Macau on or about October 22, 2012 through March 31, 2013; and\nWHEREAS, a dispute exists between the parties as to whether Zaller, Imagine and Kingsmen misappropriated and used trade secrets, intellectual property,\nand/or proprietary information of the Company, and improperly copied the trade dress of the RMST Exhibition in the Imagine Exhibition; and\nWHEREAS, Imagine, Zaller and Kingsmen have denied that they have misappropriated or used any trade secrets, intellectual property and/or proprietary\ninformation that the Company claims to own and have continued to market and promote their Imagine Exhibition throughout the world (the “Existing Imagine\nExhibition”); and\nWHEREAS, the Company filed a civil action in the United States District Court for the Northern District of Georgia, Atlanta Division (“the Federal Action”) , against\nZaller and Imagine (Civil Action No. 1:13cv-00625 -WSD) alleging, among other things, breach of contract, fraud and fraudulent inducement, trade dress and\nLanham Act violations, and misappropriation of trade secrets; and\n2\nWHEREAS, Kingsmen instituted a civil action in the High Court of the Republic of Singapore (Suit No.: 365 of 2013) against the Company (“the Singapore\nAction”), alleging that Kingsmen has not infringed or improperly used any of the Company’s trademarks, trade dress, trade secrets or other intellectual property;\nand\nWHEREAS, the Company filed a civil action in the United States District Court for the Middle District of Florida, Jacksonville Division, against Kingsmen (Case\nNo. 3:13-cv-463-J -20-TEM), ( “the Florida Action”), alleging similar claims but which case has been dismissed; and\nWHEREAS, the Company has filed a counterclaim in the Singapore Action seeking recovery for damages allegedly sustained from Kingsmen’s activities, and\nWHEREAS, Zaller and Imagine deny the allegations asserted against them by the Company, including but not limited to those allegations asserted in the Federal\nAction; and\nWHEREAS, all the parties referenced herein now wish to settle any and all differences and controversies between them, including those set forth, or which could\nhave been set forth in the Federal Action, the Florida Action and the Singapore Action\n(1) NOW THEREFORE, in consideration of the covenants, conditions and promises set forth herein and for other good and valuable consideration, the receipt\nand sufficiency and delivery of which is hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: Imagine (on its own account\nand/or on behalf of any other party or person, including but not limited to insurers) shall pay to the Company, the sum of Seven Hundred Twenty-Five Thousand\nDollars ($725,000). The sum stated above is the sole monetary consideration for this release. The monetary consideration shall be paid as follows: $725,000 by\ncertified check(s) and/or wire transfers to the Company on or before November 30, 2014. Zaller, Imagine and Kingsmen, and their insurers and counsel, make no\nrepresentations or warranties as\n3\nto the tax treatment, implications or consequences to the Company from these payments; and the Company assumes full responsibility for the tax consequences of these payments, if any.\n(2) Kingsmen agrees, represents and warrants that it shall not exhibit or participate in any Titanic-themed exhibition with Zaller or Imagine (excluding the Existing\nImagine Exhibition) anywhere for 24 months from the date of execution of this Agreement.\n(3) Zaller and Imagine agree, represent and warrant that they will not engage or participate in any Titanic-themed exhibitions (excluding the Existing Imagine\nExhibition) for 24 months from the date of execution of this Agreement\n(4) Zaller and Imagine agree, represent and warrant that they will not stage a Titanic-themed Exhibition, including the Existing Imagine Exhibition, in the United\nStates or Canada for 36 months from the date of execution of this Agreement, or Western Europe (defined herein as the United Kingdom, Ireland, France,\nGermany, Italy, Switzerland, Spain, Portugal, Sweden, Denmark and Norway only) for 24 months from the date of execution of this Agreement.\n(5) In consideration of the payment set forth in paragraph one (1) above, and for other good and valuable consideration, the receipt of which is hereby\nacknowledged, the Company, together with its affiliates, subsidiaries, parents, shareholders, officers, principals, employees, directors, agents, insurers, attorneys,\nand assigns fully, finally, and completely releases, quitclaims and discharges Zaller, Imagine and Kingsmen, their predecessors and successors, present and\nformer affiliates, subsidiaries, legal representatives, heirs, spouses, executors, administrators, insurers, employees, officers, directors, shareholders, attorneys,\nindependent contractors and agents from each and every present, past or future claim, debt, demand, judgment, cause of action, rights, damages, costs or suits,\nresponsibility and liability of every kind and character whatsoever, known or unknown, suspected or unsuspected, now existing,\n4\nwhether based on statute, federal law, common law, international law, tort, contract, or any other theory of recovery, pertaining to all matters which are, have been or may have been or could have been the subject of\nand/or in connection with the Federal Court Action, the Florida Action, the Singapore Action or arising out of and/or in connection with any RMST Exhibition, and from any and all alleged breaches and damages\nbetween the parties, which existed up to the date of execution of this Agreement. Further or additionally, the Company shall write to Las Vegas Sands Corporation, the Venetian in Macau and Marina Bay Sands in\nSingapore notifying them that the disputes between the Company and Zaller/Imagine/Kingsmen have been fully and finally resolved with Zaller, Imagine and Kingsmen denying any liability to the Company and\nmaking no admissions with respect to the resolution of the dispute (“the Sands Letter”). A draft of the Sands Letter shall first be sent to Zaller, Imagine and Kingsmen prior to it being sent and within seven (7) days of\nthe date of payment set forth in paragraph 1. The Sands Letter shall be sent by the Company within seven (7) days of approval of the draft by Zaller, Imagine and Kingsmen.\n(6) As a required condition of this settlement, the Company agrees to dismiss with prejudice the Federal Court Action, and the counterclaim in the Singapore\nAction, within five (5) days of receipt of the payment described in paragraph one (1) above, and covenants not to sue Zaller, Imagine and Kingsmen for the\nreleased claims set out in this Agreement and/or for any claims alleged or which could have been alleged in the Federal Court Action, the Florida Action, the\nSingapore Action, or which existed up to the date of execution of this Agreement whether known or unknown.\n(7) In consideration of the dismissal of the Federal Court Action, the counterclaim in the Singapore Action, the aforesaid releases, and other good and valuable\nconsideration, Zaller, Imagine and Kingsmen, and their heirs, spouses, executors, administrators, affiliated companies,\n5\nsubsidiaries, current and former officers, directors, managers, shareholders, members, employees, agents, attorneys, and their insurers, representatives, successors and assigns, do fully and finally, completely\nrelease, quitclaim and discharge the Company, its predecessors and successors, present and former affiliates, subsidiaries, officers, directors, shareholders, members, employees, attorneys, insurers, and agents\nfrom each and every present, past or future claim, debt, demand, judgment, cause of action, rights, damages, costs, or suits, responsibility and liability of every kind and character whatsoever, known or unknown,\nsuspected or unsuspected, now existing, whether based on statute, federal law, common law, international law, tort, contract, or any other theory of recovery, pertaining to the Company, including as to the RMST\nExhibitions, and for all actions or inactions including, but not limited to, all claims and counts set forth in the Singapore Action, and/or arising out of or otherwise related to the incident(s) referenced in the\nabove-identified litigation, including without limitation, all rights or claims that also could have been asserted in the Federal Court Action, the Florida Action, or the Singapore Action, and from all alleged breaches and\ndamages between the parties which existed up to the date of execution of this Agreement, whether known or unknown. Kingsmen further agrees that, within five (5) days of execution of this Agreement, it will together\nwith the Company’s Singapore lawyers, dismiss with prejudice its claims and the Company’s counterclaims in the Singapore Action, each party therein to bear its own costs and attorneys’ fees.\n(8) As a required condition of this settlement, the Company agrees to dismiss with prejudice all claims alleged against Kingsmen in its Counterclaim in the\nSingapore Action, and covenants not to sue Kingsmen for the released claims and/or any claims alleged or which could have been alleged in the Florida Action or\nthe Singapore Action, or which existed up to the date\n6\nof execution of this Agreement, and/or in connection with the matters set out therein (including in the preamble of this Agreement) whether known or unknown.\n(9) The Parties further agree that irrespective of any prior rulings or orders , they shall bear their own costs, attorneys’ fees and litigation expenses.\n(10) The Parties agree to assume full responsibility for and to indemnify and hold each other harmless from any and all liability for claims or liens which are, or\nmay be, asserted against them which arise out of or otherwise relate to their alleged obligations incurred after commencement of the Federal Action, including,\nbut not limited to, claims or liens for legal, expert witness or any other services rendered or provided to or on behalf of the parties or otherwise arising out of or by\noperation of statute or common law.\n(11) Zaller, Imagine and Kingsmen do not admit, but rather expressly deny, the allegations of liability and/or wrongdoing set forth against them in the Federal\nAction, the Florida Action and the Singapore Action, and the aforesaid monetary consideration is paid in compromise of a disputed claim or claims in order to\navoid the expenses of further investigation and litigation.\n(12) The Parties represent and warrant that they have not conveyed, transferred, pledged, hypothecated, or in any manner whatsoever assigned or encumbered\nany of the claims set forth or which could have been set forth in the Federal Action, the Florida Action and the Singapore Action.\n(13) The undersigned specifically authorize and direct Robert S. Thompson, Esquire and Robert W. McFarland, Esquire, or their designees, to execute orders\ndismissing the Federal Court Action with prejudice, and further direct the law firm of TSMP Law Corporation and\n7\nCherrin Wong and the law firm of Rajah Tann, to execute all documents necessary to dismiss with prejudice the Claims and Counterclaim in the Singapore Action.\n(14) As a material inducement to enter this settlement, the Parties have agreed and do agree that the nature, terms and conditions of this Agreement are strictly\nconfidential and shall not in the future be disclosed, other than to the following: (A) the Parties to this Agreement and any subsidiary, affiliate, associate, employee\nor parent companies and their insurers, reinsurers, auditors, accountants and attorneys, to further the legitimate business purposes of such Parties; (B) between\nand amongst the Parties in connection with the required notices and other proceedings set forth in this Agreement; (C) the Internal Revenue Service, or any other\nstate, federal, or local governmental taxing authority, in connection with tax returns, amendments or related documents; (D) the Securities and Exchange\nCommission (“SEC”) in such filings as the Company is required to provide, and such SEC disclosures may state that the Federal Action has been resolved by\nagreement of the parties therein, and that the Company is receiving funds from the settlement without any admissions of fault or liability, and shall further state\nthat the Singapore Action has been dismissed by agreement of Kingsmen and the Company; and that Zaller, Imagine and Kingsmen deny any liability to the\nCompany ; (E) any person designated pursuant to an order from a court of competent jurisdiction, or as may otherwise be required by law, provided that the\ndisclosing Party shall make reasonable efforts to have this Agreement covered by protective order limiting dissemination to those involved in such proceedings;\n(F) in the event of a dispute or other litigation between any of the Parties involving the provisions of this Agreement, but in such event the disclosure shall be\nunder terms that preserve the confidentiality of the information disclosed; (G) the Singapore Exchange (“SGX ”) in such filings as Kingsmen is required to provide\nbut such SGX disclosure shall be limited to a bare or simple\n8\nstatement relating to the outcome of the Singapore Action and, if relevant, that the Company denies any liability to Kingsmen and vice versa or (H) the Parties agree in writing to the specific disclosure. To the extent\nnecessary, the Parties assign a value of $500.00 of the total consideration for this Agreement.\n(15) Each of the Parties further agrees that they will not say or do anything that would or could be construed to defame, libel or disparage the reputation of any of\nthe other Parties, except as required by law. The Parties further agree that they will require their respective employees who have knowledge of the existence and\nterms of this Agreement, for so long as they remain employees, to not say or do anything that would or could be reasonably construed to defame, libel or\ndisparage the reputation of any of the other Parties, except as required by law. Nothing contained herein shall prevent any Party from providing truthful testimony\nin court, administrative hearings, arbitration, discovery responses, depositions, or as otherwise required by law.\n(16) This Agreement contains the entire agreement between the parties hereto, regarding the issues and disputes which have arisen in the Federal Action, the\nFlorida Action and the Singapore Action, and all other related matters regarding the rights, duties and obligations under the aforementioned matters, and no\npromise, inducement, agreement or other consideration not herein expressed has been made between the parties. It is expressly understood and agreed that\nthis Agreement may not be altered, amended, modified or otherwise changed in any respect or particular whatsoever, except by a writing duly executed by an\nauthorized representative of each of the Parties.\n(17) The undersigned acknowledge that they have read the foregoing provisions of this document before executing it and that they understand its provisions, or\nhave made any\n9\nnecessary inquiries to understand its provisions. Further, the undersigned have been advised by counsel of their choice of the advisability of accepting the settlement herein set out. The persons executing this\nAgreement for the Company, Imagine, and Kingsmen affirm, respectively, that they possess authority to execute this Agreement on the entity’s behalf. As between the Company, and Zaller and Imagine, this\nAgreement shall be deemed to have been made and entered into in the State of Georgia, and shall in all respects be interpreted, enforced and governed under the laws of the State of Georgia, without regard to\nconflicts of laws principles or choice of law provisions. The language of all parts of this Agreement shall be construed as a whole, according to its plain meaning, and not be interpreted or construed against or for any\nof the Parties. Any dispute and/or difference between the Company and Kingsmen arising out of and/or in connection with this Agreement (including but not limited to any questions regarding its existence, effect,\nvalidity and/or termination) shall be referred to and finally resolved by international arbitration in Singapore in accordance with the Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time\nbeing in force, which rules are deemed to be incorporated by reference in this clause. The Tribunal shall consist of a single arbitrator appointed by the Chairman of the SIAC. The language of the arbitration shall be\nEnglish. The prevailing party in any action or proceedings brought to enforce and/or because of an alleged breach of this Agreement shall be entitled to recovery of its costs and attorneys’ fees incurred in the action.\nAs between the Company and Kingsmen, any dispute arising under and/or in connection with this Agreement shall be governed solely and only by the laws of the Republic of Singapore (excluding private international\nlaw considerations) as if both the Company and Kingsmen and the transaction are domiciled in the Republic of Singapore.\n10\n(18) Should any provision of this Agreement be held by a court or tribunal of competent jurisdiction to be unenforceable, or enforceable only if modified, that\nholding shall not affect the validity of the remainder of this Agreement, the balance of which shall continue to be binding upon the parties, with any modification to\nbecome a part hereof and treated as though contained in this original Agreement.\n(19) Zaller, Imagine and the Company consent to personal jurisdiction and venue in connection with any alleged breach of this Agreement in the United States\nDistrict Court for the Northern District of Georgia, Atlanta Division, or an appropriate state court forum for Atlanta, Georgia. This Agreement shall be binding\nupon, and inure to the benefit of the successors and assigns of the parties. The prevailing party in any action brought to enforce and/or because of an alleged\nbreach of this Agreement shall be entitled to recovery of its costs and attorneys’ fees incurred in the action.\n(20) This Agreement shall be effective whether executed as a single document or in counterparts, and taken together shall be deemed a single binding and\nenforceable instrument. True copies of this Agreement have the same force and effect as an original.\nTHE UNDERSIGNED HAVE READ THIS RELEASE, UNDERSTANDS IT FULLY , AND SIGNS IT VOLUNTARILY, WITH THE INTENT TO BE LEGALLY BOUND\nTHEREBY.\nIN WITNESS WHEREOF, we do hereby set our hands and seals.\n(1) IMAGINE EXHIBITIONS, INC ., a Georgia corporation\nBy:\nTitle:\nDate:\n11\n(2) IMAGINE EXHIBITIONS, INC ., a Nevada corporation\nBy:\nTitle:\nDate:\n(3) IMAGINE EXHIBITIONS PTE, Ltd.\nBy:\nTitle:\nDate:\n(4) TZ, Inc.\nBy:\nTitle:\nDate:\n(5) THOMAS ZALLER\n(6) PREMIER EXHIBITIONS, INC.\nBy:\nTitle:\nDate:\n12\n(7)\nRMS TITANIC, INC .\nBy:\nTitle:\nDate:\n(8)\nKINGSMEN EXHIBITS PTE, LTD .\nBy:\nTitle:\nDate:\n(9)\nKINGSMEN CREATIVES LTD.\nBy:\nTitle:\nDate:\n13	EXHIBIT 10.1\nFULL AND GENERAL MUTUAL RELEASE,\nSETTLEMENT AND CONFIDENTIALITY AGREEMENT\nThis FULL AND GENERAL RELEASE, , Settlement and Confidentiality Agreement (hereinafter this “Agreement") is entered into between RMS TITANIC, INC.\n(“RMST") and PREMIER EXHIBITIONS, INC. ("Premier", and hereinafter collectively with RMST referred to as “the Company"), and THOMAS ZALLER\n(“Zaller"), IMAGINE EXHIBITIONS, INC., a Georgia corporation (“Imagine-Georgia"), IMAGINE EXHIBITIONS, INC., a Nevada corporation (“Imagine-Nevada"),\nIMAGINE EXHIBITIONS PTE, LTD. (“Imagine PTE"), and T2, INC. (collectively, “Imagine") and KINGSMEN EXHIBITS PTE LTD. and its parent company,\nKINGSMEN CREATIVE, LTD. (collectively “Kingsmen") and altogether collectively referred to as the “Parties."\nWHEREAS, RMST and Premier, are Florida corporations whose principal places of business are in Atjanta, Georgia, and who presentmuseum quality exhibitions\nfeaturing artifacts recovered from the wreck site of the RMS Titanic ('the RMST Exhibition"); and\nWHEREAS, on or about] une 13, 2011 the Company entered into an agreement to presentthe RMST Exhibition in Singapore;\nWHEREAS, Zaller is a former employee of the Company who resides in Atlanta, Georgia, and who is the CEO and sole shareholder for Imagine-Georgia,\nImagine-Nevada, Imagine PTE, and T2, Inc. (collectively, “Imagine"), which companies are engaged in the entertainment business, and, among other things,\nprovide exhibitions at museums and other public venues, including their own Titanic exhibition ('the Imagine Exhibition"); and\nWHE REAS, Kingsmen are Singapore companies whose business operations include the design, production and construction of interiors, including for exhibitions;\nand,\nWHEREAS, RMST, TZ, Inc., Imagine PTE, Zaller and Kingsmen were all involved in the staging and presentation of the RMST Exhibition in Singapore in 2011\nand 2012, and during which time RMST alleges that it provided Zaller and Kingsmen certain trade secrets, intellectual property and other confidential and\nproprietary information solely for use in the Singapore exhibition; and\nWHEREAS, following the period when the RMST Exhibition was being presented in Singapore, Imagine-PTE and Kingsmen entered into an agreement for the\npresentation ofthe Imagine Exhibition in Macau, and presented the Imagine Exhibition in Macau on or aboutOctober 22, 2012 through March 31, 2013; and\nWHEREAS, a dispute exists between the parties as to whether Zaller, Imagine and Kingsmen misappropriated and used trade secrets, intellectual property,\nand/or proprietary information ofthe Company, and improperly copied the trade dress of the RMST Exhibition in the Imagine Exhibition; and\nWHEREAS, Imagine, Zaller and Kingsmen have denied that they have misappropriated or used any trade secrets, intellectual property and/or proprietary\ninformation that the Company claims to own and have continued to market and promote their Imagine Exhibition throughout the world (the “Existing Imagine\nExhibition"); and\nWHEREAS, the Company filed a civil action in the United States DistrictCourt for the Northern DistrictofGeorgia, Atlanta Division (“the Federal Action"), against\nZaller and Imagine (Civil Action No. 1:13cv-00625-WSD) alleging, among other things, breach of contract, fraud and fraudulent inducement, trade dress and\nLanham Actviolations, and misappropriation oftrade secrets; and\nWHEREAS, Kingsmen instituted a civil action in the High Court of the Republic of Singapore (Suit No.: 365 of 2013) against the Company ('the Singapore\nAction"), alleging that Kingsmen has not infringed or improperly used any of the Company's trademarks, trade dress, trade secrets or other intellectual property;\nand\nWHEREAS, the Company filed a civil action in the United States DistrictCourt for the Middle District of Florida, I acksonville Division, against Kingsmen (Case\nNo. 3:13-cv-463-J -20-TEM), ('the Florida Action"), alleging similar claims butwhich case has been dismissed; and\nWHE REAS, the Company has filed a counterclaim in the Singapore Action seeking recovery for damages allegedly sustained from Kingsmen’s activities, and\nWHEREAS, Zaller and Imagine deny the allegations asserted againstthem by the Company, including but notlimited to those allegations asserted in the Federal\nAction; and\nWHEREAS, all the parties referenced herein now wish to settle any and all differences and controversies between them, including those set forth, or which could\nhave been set forth in the Federal Action, the Florida Action and the Singapore Action\n(1) NOW THE RE FORE, in consideration ofthe covenants, conditions and promises setforth herein and for other good and valuable consideration, the receipt\nand sufficiency and delivery ofwhich is hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: Imagine (on its own account\nand/or on behalfof any other party or person, including but not limited to insurers) shall pay to the Company, the sum of Seven Hundred Twenty-Five Thousand\nDollars ($725,000). The sum stated above is the sole monetary consideration for this release. The monetary consideration shall be paid as follows: $725,000 by\ncertified check(s) and/or wire transfers to the Company on or before November 30, 2014. Zaller, Imagine and Kingsmen, and their insurers and counsel, make no\nrepresentations or warranties as\nto the tax treatment, implications or consequences to the Company from these paymenE; and the Company assumes full responsibility for the tax consequences of these payments, ifany.\n(2) Kingsmen agrees, represents and warrants that itshall notexhibitor participate in any Titanic-themed exhibition with Zaller or Imagine (excluding the Existing\nImagine Exhibition) anywhere for 24 months from the date of execution of this Agreement.\n(3) Zaller and Imagine agree, represent and warrant thatthey will notengage or participate in any Titanic-themed exhibitions (excluding the Existing Imagine\nExhibition) for 24 months from the date of execution of this Agreement\n(4) Zaller and Imagine agree, representand warrantthatthey will not stage a Titanic-themed Exhibition, including the Existing Imagine Exhibition, in the United\nStates or Canada for 36 months from the date ofexecution ofthis Agreement, or Western Europe (defined herein as the United Kingdom, Ireland, France,\nGermany, Italy, Switzerland, Spain, Portugal, Sweden, Denmark and NonNay only) for 24 months from the date ofexecution of this Agreement.\n(5) In consideration of the paymentset forth in paragraph one (1) above, and for other good and valuable consideration, the receipt of which is hereby\nacknowledged, the Company, together with its affiliates, subsidiaries, parent's, shareholders, officers, principals, employees, directors, agent's, insurers, attorneys,\nand assigns fully, finally, and completely releases, quitclaims and discharges Zaller, Imagine and Kingsmen, their predecessors and successors, present and\nformer affiliates, subsidiaries, legal representatives, heirs, spouses, executors, administrators, insurers, employees, officers, directors, shareholders, attorneys,\nindependentcontractors and agents from each and every present, pastor future claim, debt, demand, judgment, cause of action, rights, damages, costs or suits,\nresponsibility and liability ofevery kind and character whatsoever, known or unknown, suspected or unsuspected, now existing,\nwhether based on statute, federal law, common law, international law, tort, contract, orany other theory of recovery, pertaining to all matters which are, have been or may have been orcould have been the subject of\nand/or in connection with the Federal Court Action, the Florida Action, the Singapore Action or arising out ofand/orin connection with any RMST Exhibition, and from any and all alleged breaches and damages\nbetween the parties, which existed up to the date of execution of this Agreement. Further or additionally, the Company shall write to Las Vegas Sands Corporation, the Venetian in Macau and Marina Bay Sands in\nSingapore notifying them that the disputes between the Company and Zaller/Imagine/Kingsmen have been fully and finally resolved with Zaller, Imagine and Kingsmen denying any liability to the Company and\nmaking no admissions with respectto the resolution of the dispute (“the Sands Letter”). A draft of the Sands Letter shall first be sent to Zaller, Imagine and Kingsmen priorto it being sentand within seven (7) days of\nthe date of payment set forth in paragraph 1. The Sands Letter shall be sent by the Company within seven (7) days of approval of the draft by Zaller, Imagine and Kingsmen.\n(6) As a required condition of this settjement, the Company agrees to dismiss with prejudice the Federal Court Action, and the counterclaim in the Singapore\nAction, within five (5) days of receipt of the paymentdescribed in paragraph one (1) above, and covenants not to sue Zaller, Imagine and Kingsmen for the\nreleased claims setout in this Agreement and/or for any claims alleged or which could have been alleged in the Federal Court Action, the Florida Action, the\nSingapore Action, or which existed up to the date ofexecution of this Agreementwhether known or unknown.\n(7) In consideration of the dismissal of the Federal Court Action, the counterclaim in the Singapore Action, the aforesaid releases, and other good and valuable\nconsideration, Zaller, Imagine and Kingsmen, and their heirs, spouses, executors, administrators, affiliated companies,\nsubsidiaries, currentand formerofficers, directors, managers, shareholders, members, employees, agenE, attorneys, and their insurers, representatives, successors and assigns, do fully and finally, completely\nrelease, quitclaim and discharge the Company, its predecessors and successors, presentand former affiliates, subsidiaries, officers, directors, shareholders, members, employees, attorneys, insurers, and agents\nfrom each and every present, pastorfuture claim, debt, demand, judgment, cause ofaction, rights, damages, c055, orsuits, responsibility and liability of event kind and character whatsoever, known or unknown,\nsuspected or unsuspected, now existing, whether based on statute, federal law, common law, international law, tort, contract, or any othertheory of recovery, pertaining to the Company, including as to the RMST\nExhibitions, and forall actions or inactions including, but not limited to, all claims and counts set forth in the Singapore Action, and/orarising out oforotherwise related to the incident(s) referenced in the\nabove-identified litigation, including without limitation, all righE or claims thatalso could have been asserted in the Federal Court Action, the Florida Action, orthe Singapore Action, and from all alleged breaches and\ndamages between the parties which existed up to the date of execution of this Agreement, whether known or unknown. Kingsmen further agrees that, within five (5) days of execution of this Agreement, it will together\nwith the Company's Singapore lawyers, dismiss with prejudice is claims and the Company's counterclaims in the Singapore Action, each party therein to bear its own costs and attorneys' fees.\n(8) As a required condition of this settlement, the Company agrees to dismiss with prejudice all claims alleged against Kingsmen in its Counterclaim in the\nSingapore Action, and covenants notto sue Kingsmen for the released claims and/or any claims alleged or which could have been alleged in the Florida Action or\nthe Singapore Action, or which existed up to the date\nof execution of this Agreement, and/or in connection with the matters set out therein (including in the preamble of this Agreement) whether known or unknown.\n(9) The Parties further agree that irrespective of any prior rulings or orders , they shall bear their own costs, attorneys’ fees and litigation expenses.\n(10) The Parties agree to assume full responsibility for and to indemnify and hold each other harmless from any and all liability for claims or liens which are, or\nmay be, asserted against them which arise out of or othenNise relate to their alleged obligations incurred after commencement of the Federal Action, including,\nbut not limited to, claims or liens for legal, expertwitness or any other services rendered or provided to or on behalf of the parties or othenNise arising outof or by\noperation ofstatute or common law.\n(11)Zaller, Imagine and Kingsmen do not admit, but rather expressly deny, the allegations of liability and/or wrongdoing set forth againstthem in the Federal\nAction, the Florida Action and the Singapore Action, and the aforesaid monetary consideration is paid in compromise of a disputed claim or claims in order to\navoid the expenses of further investigation and litigation.\n(12) The Parties represent and warrant that they have notconveyed, transferred, pledged, hypothecated, or in any manner whatsoever assigned or encumbered\nany of the claims set forth or which could have been setforth in the Federal Action, the Florida Action and the Singapore Action.\n(13) The undersigned specifically authorize and direct Robert S. Thompson, Esquire and Robert W. McFarland, Esquire, or their designees, to execute orders\ndismissing the Federal CourtAction with prejudice, and further directthe law firm ofTS M P Law Corporation and\nCherrin Wong and the law firm of Rajah Tann, to execute all documenE necessary to dismiss with prejudice the Claims and Counterclaim in the Singapore Action.\n(14) As a material inducementto enter this settlement, the Parties have agreed and do agree that the nature, terms and conditions of this Agreement are strictly\nconfidential and shall not in the future be disclosed, other than to the following: (A) the Parties to this Agreement and any subsidiary, affiliate, associate, employee\nor parent companies and their insurers, reinsurers, auditors, accountants and attorneys, to further the legitimate business purposes ofsuch Parties; (B) between\nand amongstthe Parties in connection with the required notices and other proceedings set forth in this Agreement; (C) the Internal Revenue Service, or any other\nstate, federal, or local governmental taxing authority, in connection with tax returns, amendments or related documents; (D) the Securities and Exchange\nCommission (“S EC") in such filings as the Company is required to provide, and such S EC disclosures may state thatthe Federal Action has been resolved by\nagreement of the parties therein, and that the Company is receiving funds from the settlementwithout any admissions offault or liability, and shall further state\nthat the Singapore Action has been dismissed by agreementof Kingsmen and the Company; and thatZaller, Imagine and Kingsmen deny any liability to the\nCompany; (E) any person designated pursuantto an order from a courtofcompetentjurisdiction, or as may otherwise be required by law, provided that the\ndisclosing Party shall make reasonable efforts to have this Agreementcovered by protective order limiting dissemination to those involved in such proceedings;\n(F) in the event of a dispute or other litigation between any ofthe Parties involving the provisions of this Agreement, but in such eventthe disclosure shall be\nunder terms that preserve the confidentiality ofthe information disclosed; (G) the Singapore Exchange (“SGX") in such filings as Kingsmen is required to provide\nbutsuch SGX disclosure shall be limited to a bare or simple\nstatement relating to the outcome of the Singapore Action and, if relevant, that the Company denies any liability to Kingsmen and vice versa or (H) the Parties agree in writing to the specific disclosure. To the extent\nnecessary, the Parties assign a value of $500.00 of the total consideration for this Agreement.\n(15) Each of the Parties further agrees that they will not say or do anything that would or could be construed to defame, libel or disparage the reputation of any of\nthe other Parties, except as required by law. The Parties further agree that they will require their respective employees who have knowledge ofthe existence and\nterms of this Agreement, for so long as they remain employees, to notsay or do anything thatwould or could be reasonably construed to defame, libel or\ndisparage the reputation of any ofthe other Parties, except as required by law. Nothing contained herein shall prevent any Party from providing truthful testimony\nin court, administrative hearings, arbitration, discovery responses, depositions, or as otherwise required by law.\n(16) This Agreementcontains the entire agreement between the parties hereto, regarding the issues and disputes which have arisen in the Federal Action, the\nFlorida Action and the Singapore Action, and all other related matters regarding the rights, duties and obligations under the aforementioned matters, and no\npromise, inducement, agreementor other consideration not herein expressed has been made between the parties. It is expressly understood and agreed that\nthis Agreement may not be altered, amended, modified or othenNise changed in any respector particular whatsoever, except by a writing duly executed by an\nauthorized representative of each ofthe Parties.\n(17) The undersigned acknowledge thatthey have read the foregoing provisions of this document before executing it and that they understand its provisions, or\nhave made any\nnecessary inquiries to understand its provisions. Further, the undersigned have been advised by counsel of their choice ofthe advisability of accepting the settlement herein setout. The persons executing this\nAgreement for the Company, Imagine, and Kingsmen affirm, respectively, that they possess authority to execute this Agreement on the entity's behalf. As between the Company, and Zaller and Imagine, this\nAgreementshall be deemed to have been made and entered into in the State ofGeorgia, and shall in all respects be interpreted, enforced and governed underthe laws of the State ofGeorgia, without regard to\nconflicE of laws principles or choice of law provisions. The language of all parts of this Agreement shall be construed as a whole, according to its plain meaning, and not be interpreted or construed againstorfor any\nof the Parties. Any dispute and/or difference between the Company and Kingsmen arising out of and/or in connection with this Agreement (including but not limited to any questions regarding its existence, effect,\nvalidity and/or termination) shall be referred to and finally resolved by international arbitration in Singapore in accordance with the Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time\nbeing in force, which rules are deemed to be incorporated by reference in this clause. The Tribunal shall consistofa single arbitrator appointed by the Chairman of the SIAC.The language of the arbitration shall be\nEnglish. The prevailing party in any action or proceedings brought to enforce and/or because of an alleged breach of this Agreement shall be entitled to recovery of its costs and attorneys' fees incurred in the action.\nAs between the Company and Kingsmen, any dispute arising underand/or in connection with this Agreementshall be governed solely and only by the laws ofthe Republic ofSingapore (excluding private international\nlaw considerations) as if both the Company and Kingsmen and the transaction are domiciled in the Republic of Singapore.\n10\n(18) Should any provision of this Agreement be held by a court or tribunal of competentjurisdiction to be unenforceable, or enforceable only if modified, that\nholding shall not affectthe validity of the remainder of this Agreement, the balance ofwhich shall continue to be binding upon the parties, with any modification to\nbecome a part hereof and treated as though contained in this original Agreement.\n(19)Zaller, Imagine and the Company consent to personal jurisdiction and venue in connection with any alleged breach of this Agreement in the United States\nDistrictCourtforthe Northern District ofGeorgia, Atlanta Division, or an appropriate state court forum for Atianta, Georgia. This Agreementshall be binding\nupon, and inure to the benefit of the successors and assigns ofthe parties. The prevailing party in any action brought to enforce and/or because of an alleged\nbreach of this Agreement shall be entitled to recovery of its costs and attorneys’ fees incurred in the action.\n(20) This Agreementshall be effective whether executed as a single document or in counterparts, and taken together shall be deemed a single binding and\nenforceable instrument. True copies of this Agreement have the same force and effect as an original.\nTHE UNDERSIGNED HAVE READ THIS RELEASE, UNDERSTANDS |T FULLY,AND SIGNS |T VOLUNTARILY, WITH THE INTENT TO BE LEGALLY BOUND\nTHEREBY.\nIN WITNESS WHEREOF, we do hereby setour hands and seals.\n(1) IMAGINE EXHIBITIONS, INC., a Georgia corporation\nBy:\nTitle:\nDate:\n11\n(2) IMAGINE EXHIBITIONS, INC., a Nevada corporation\n12\n13\nBy:\nTitle: Date: By:\nTitle: Date: By:\nTitle: Date: By:\nTitle: Date: By:\nTitle:\nDate:\nBy:\nTitle:\nDate:\nBy:\nTitle:\nDate:\nIMAGINE EXHIBITIONS PTE, Ltd.\nTZ, Inc.\nTHOMAS ZALLER\nPREMIER EXHIBITIONS, INC.\nRMS TITANIC, INC.\nKINGSMEN EXHIBITS PTE, LTD.\nKINGSMEN CREATIVES LTD.	EXHIBIT 10.1\nFULL AND GENERAL MUTUAL RELEASE,\nSETTLEMENT AND CONFIDENTIALITY AGREEMENT\nThis FULL AND GENERAL RELEASE, Settlement and Confidentiality Agreement (hereinafter this "Agreement") is entered into between RMS TITANIC, INC.\n("R MST") and PREMIER EXHIBITIONS, INC. ("Premier", and hereinafter collectively with RMST referred to as "the Company"), and THOMAS ZALLER\n("Zaller"), IMAGINE EXHIBITIONS, INC., a Georgia corporation ("Imagine-Georgia") IMAGINE EXHIBITIONS, INC., a Nevada corporation ("Imagine-Nevada"),\nIMAGINE EXHIBITIONS PTE, LTD. ("Imagine PTE"), and TZ, INC. (collectively, "Imagine") and KINGSMEN EXHIBITS PTE LTD. and its parent company,\nKINGSMEN CREATIVE, LTD (collectively "Kingsmen") and altogether collectively referred to as the "Parties."\nWHEREAS, RMST and Premier are Florida corporations whose principa places of business are in Atlanta, Georgia, and who present museum quality exhibitions\nfeaturing artifacts recovered from the wreck site of the RMS Titanic ("the RMST Exhibition"); and\nWHEREAS, on or about une 13, 2011 the Company entered into an agreement to present the RMST Exhibition in Singapore;\nWHEREAS, Zaller is a former employee of the Company who resides in Atlanta, Georgia, and who is the CEO and sole shareholder for Imagine-Georgia,\nImagine-Nevada, Imagine PTE, and TZ, Inc. (collectively, "Imagine"), which companies are engaged in the entertainment business, and, among other things,\nprovide exhibitions at museums and other public venues, including their own Titanic exhibition ("the Imagine Exhibition"); and\nWHEREAS, Kingsmen are Singapore companies whose business operations include the design, production and construction of interiors, including for exhibitions;\nand,\nWHEREAS, RMST, TZ, Inc., Imagine PTE, Zaller and Kingsmen were all involved in the staging and presentation of the RMST E xhibition in Singapore in 2011\nand 2012, and during which time RMST alleges that it provided Zaller and Kingsmen certain trade secrets, intellectual property and other confidential and\nproprietary information solely for use in the Singapore exhibition; and\nWHEREAS, following the period when the RMST Exhibition was being presented in Singapore, Imagine-PTE and Kingsmen entered into an agreement for the\npresentation of the Imagine E xhibition in Macau, and presented the Imagine E xhibition in Macau on or about O ctober 22, 2012 through March 31, 2013; and\nWHEREAS, a dispute exists between the parties as to whether Zaller, Imagine and Kingsmen misappropriated and used trade secrets, intellectual property,\nand/or proprietary information of the Company, and improperly copied the trade dress of the RMST Exhibition in the Imagine E xhibition; and\nWHEREAS, Imagine, Zaller and Kingsmen have denied that they have misappropriated or used any trade secrets, intellectual property and/or proprietary\ninformation that the Company claims to own and have continued to market and promote their Imagine Exhibition throughout the world (the "Existing Imagine\nExhibition"); and\nWHEREAS, the Company filed a civil action in the United States District Court for the Northern District of Georgia, Atlanta Division ("the Federal Action"), against\nZaller and Imagine (Civil Action No. 1:13cv-00625-WSD) alleging, among other things, breach of contract, fraud and fraudulent inducement, trade dress and\nLanham Act violations, and misappropriation of trade secrets; and\n2\nWHEREAS, Kingsmen instituted a civil action in the High Court of the Republic of Singapore (Suit No.: 365 of 2013) against the Company ("the Singapore\nAction"), alleging that Kingsmen has not infringed or improperly used any of the Company's trademarks, trade dress, trade secrets or other intellectual property;\nand\nWHEREAS, the Company filed a civil action in the United States District Court for the Middle District of Florida, J acksonville Division, against Kingsmen (Case\nNo. 3:13-CV-463-J-20-TEM) ("the Florida Action") alleging similar claims but which case has been dismissed; and\nWHEREAS, the Company has filed a counterclaim in the Singapore Action seeking recovery for damages allegedly sustained from Kingsmen's activities, and\nWHEREAS, Zaller and Imagine deny the allegations asserted against them by the Company, including but not limited to those allegations asserted in the Federal\nAction; and\nWHEREAS, all the parties referenced herein now wish to settle any and all differences and controversies between them, including those set forth, or which could\nhave been set forth in the Federal Action, the Florida Action and the ingapore Action\n(1) NOW THEREFORE, in consideration of the covenants, conditions and promises set forth herein and for other good and valuable consideration, the receipt\nand sufficiency and delivery of which is hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: Imagine (on its own account\nand/or on behalf of any other party or person, including but not limited to insurers) shall pay to the Company, the sum of even Hundred Twenty-Five Thousand\nDollars ($725,000). The sum stated above is the sole monetary consideration for this release. The monetary consideration shall be paid as follows: $725,000 by\ncertified check(s) and/or wire transfers to the Company on or before November 30, 2014. Zaller, Imagine and Kingsmen, and their insurers and counsel, make no\nrepresentations or warranties as\n3\nto the tax treatment, implications or consequences to the Company from these payments; and the Company assumes full responsibility for the tax consequences of these payments, if any.\n(2) Kingsmen agrees, represents and warrants that it shall not exhibit or participate in any Titanic-themed exhibition with Zaller or Imagine (excluding the Existing\nImagine Exhibition) anywhere for 24 months from the date of execution of this Agreement.\n(3) Zaller and Imagine agree, represent and warrant that they will not engage or participate in any Titanic-themed exhibitions (excluding the Existing Imagine\nE xhibition) for 24 months from the date of execution of this Agreement\n(4) Zaller and Imagine agree, represent and warrant that they will not stage a Titanic-themed E xhibition, including the E Existing Imagine E xhibition, in the United\nStates or Canada for 36 months from the date of execution of this Agreement, or Western Europe (defined herein as the United Kingdom, Ireland, France,\nGermany, Italy, S witzerland, Spain, Portugal, S weden, Denmark and Norway only) for 24 months from the date of execution of this Agreement.\n(5) In consideration of the payment set forth in paragraph one (1) above, and for other good and valuable consideration, the receipt of which is hereby\nacknowledged, the Company, together with its affiliates, subsidiaries, parents, shareholders, officers, principals, employees, directors, agents, insurers, attorneys,\nand assigns fully, finally, and completely releases, quitclaims and discharges Zaller, Imagine and Kingsmen, their predecessors and successors, present and\nformer affiliates, subsidiaries, legal representatives, heirs, spouses, executors, administrators, insurers, employees, officers, directors, shareholders, attorneys,\nindependent contractors and agents from each and every present, past or future claim, debt, demand, judgment, cause of action, rights, damages, costs or suits,\nresponsibility and liability of every kind and character whatsoever, known or unknown, suspected or unsuspected, now existing,\n4\nwhether based on statute, federal law, common law, international law, tort, contract, or any other theory of recovery, pertaining to all matters which are, have been or may have been or could have been the subject of\nand/or in connection with the Federal Court Action, the Florida Action, the Singapore Action or arising out of and/or in connection with any RMST Exhibition, and from any and all alleged breaches and damages\nbetween the parties, which existed up to the date of execution of this Agreement. Further or additionally, the Company shall write to Las Vegas Sands Corporation, the Venetian in Macau and Marina Bay Sands in\nSingapore notifying them that the disputes between the Company and Zaller/imagine/Kingsmen have been fully and finally resolved with Zaller, Imagine and Kingsmen denying any liability to the Company and\nmaking no admissions with respect to the resolution of the dispute ("the Sands Letter"). A draft of the Sands Letter shal first be sent to Zaller, Imagine and Kingsmen prior to it being sent and within seven (7) days of\nthe date of payment set forth in paragraph 1. The Sands Letter shal be sent by the Company within seven (7) days of approval of the draft by Zaller, Imagine and Kingsmen.\n(6) As a required condition of this settlement, the Company agrees to dismiss with prejudice the Federal Court Action, and the counterclaim in the Singapore\nAction, within five (5) days of receipt of the payment described in paragraph one (1) above, and covenants not to sue Zaller, Imagine and Kingsmen for the\nreleased claims set out in this Agreement and/or for any claims alleged or which could have been alleged in the Federal Court Action, the Florida Action, the\nSingapore Action, or which existed up to the date of execution of this Agreement whether known or unknown.\n(7) In consideration of the dismissal of the Federal Court Action, the counterclaim in the Singapore Action, the aforesaid releases, and other good and valuable\nconsideration, Zaller, Imagine and Kingsmen, and their heirs, spouses, executors, administrators, affiliated companies,\n5\nsubsidiaries, current and former officers, directors, managers, shareholders, members, employees, agents, attorneys, and their insurers, representatives, successors and assigns, do fully and finally, completely\nrelease, quitclaim and discharge the Company, its predecessors and successors, present and former affiliates, subsidiaries, officers, directors, shareholders, members, employees, attorneys, insurers, and agents\nfrom each and every present, past or future claim, debt, demand, judgment, cause of action, rights, damages, costs, or suits, responsibility and liability of every kind and character whatsoever, known or unknown,\nsuspected or unsuspected, now existing, whether based on statute, federal law, common law, international law, tort, contract, or any other theory of recovery, pertaining to the Company, including as to the RMST\nExhibitions, and for all actions or inactions including, but not limited to, all claims and counts set forth in the Singapore Action, and/or arising out of or otherwise related to the incident(s) referenced in the\nabove-identified litigation, including without limitation, all rights or claims that also could have been asserted in the Federal Court Action, the Florida Action, or the Singapore Action, and from all alleged breaches and\ndamages between the parties which existed up to the date of execution of this Agreement, whether known or unknown. Kingsmen further agrees that, within five (5) days of execution of this Agreement, it wil together\nwith the Company's Singapore lawyers, dismiss with prejudice its claims and the Company's counterclaims in the ingapore Action, each party therein to bear its own costs and attorneys fees.\n(8) As a required condition of this settlement, the Company agrees to dismiss with prejudice all claims alleged against Kingsmen in its Counterclaim in the\nSingapore Action, and covenants not to sue Kingsmen for the released claims and/or any claims alleged or which could have been alleged in the Florida Action\nor\nthe ingapore Action, or which existed up to the date\n6\nof execution of this Agreement, and/or in connection with the matters set out therein (including in the preamble of this Agreement) whether known or unknown.\n(9) The P arties further agree that irrespective of any prior rulings or orders they shall bear their own costs, attorneys' fees and litigation expenses.\n(10) The Parties agree to assume full responsibility for and to indemnify and hold each other harmless from any and all liability for claims or liens which are, or\nmay be, asserted against them which arise out of or otherwise relate to their alleged obligations incurred after commencement of the Federal Action, including,\nbut not limited to, claims or liens for legal, expert witness or any other services rendered or provided to or on behalf of the parties or otherwise arising out of or by\noperation of statute or common law.\n(11) Zaller, Imagine and Kingsmen do not admit, but rather expressly deny, the allegations of liability and/or wrongdoing set forth against them in the Federal\nAction, the Florida Action and the Singapore Action, and the aforesaid monetary consideration is paid in compromise of a disputed claim or claims in order\nto\navoid the expenses of further investigation and litigation.\n(12) The Parties represent and warrant that they have not conveyed, transferred, pledged, hypothecated, or in any manner whatsoever assigned or encumbered\nany of the claims set forth or which could have been set forth in the Federal Action, the Florida Action and the Singapore Action.\n(13) The undersigned specifically authorize and direct R obert S. Thompson, Esquire and obert W. McF arland, Esquire, or their designees, to execute orders\ndismissing the ederal Court Action with prejudice, and further direct the law firm of TSMP Law Corporation and\n7\nCherrin Wong and the law firm of Rajah Tann, to execute all documents necessary to dismiss with prejudice the Claims and Counterclaim in the Singapore Action.\n(14) As a material inducement to enter this settlement, the Parties have agreed and do agree that the nature, terms and conditions of this Agreement are strictly\nconfidential and shall not in the future be disclosed, other than to the following: (A) the Parties to this Agreement and any subsidiary, affiliate, associate, employee\nor parent companies and their insurers, reinsurers, auditors, accountants and attorneys, to further the legitimate business purposes of such Parties (B) between\nand amongst the arties in connection with the required notices and other proceedings set forth in this Agreement; (C) the Internal evenue Service, or any other\nstate, federal, or local governmental taxing authority, in connection with tax returns, amendments or related documents; (D the Securities and Exchange\nCommission ("SEC") in such filings as the Company is required to provide, and such SEC disclosures may state that the F ederal Action has been resolved by\nagreement of the parties therein, and that the Company is receiving funds from the settlement without any admissions of fault or liability, and shall further state\nthat the Singapore Action has been dismissed by agreement of Kingsmen and the Company; and that Zaller, Imagine and Kingsmen deny any liability to\nthe\nCompany (E) any person designated pursuant to an order from a court of competent jurisdiction, or as may otherwise be required by law, provided that the\ndisclosing Party shal make reasonable efforts to have this Agreement covered by protective order limiting dissemination to those involved in such proceedings;\n(F) in the event of a dispute or other litigation between any of the arties involving the provisions of this Agreement, but in such event the disclosure shall be\nunder terms that preserve the confidentiality of the information disclosed; (G) the Singapore xchange ("SGX") in such filings as Kingsmen is required to provide\nbut such SGX disclosure shal be limited to a bare or simple\n8\nstatement relating to the outcome of the Singapore Action and if relevant, that the Company denies any liability to Kingsmen and vice versa or (H) the Parties agree in writing to the specific disclosure. To the extent\nnecessary, the Parties assign a value of $500.00 of the total consideration for this Agreement.\n(15) Each of the arties further agrees that they wil not say or do anything that would or could be construed to defame, libel or disparage the reputation of any of\nthe other arties, except as required by law. The arties further agree that they wil require their respective employees who have knowledge of the existence and\nterms of this Agreement, for so long as they remain employees, to not say or do anything that would or could be reasonably construed to defame, libe or\ndisparage the reputation of any of the other Parties, except as required by law. Nothing contained herein shall prevent any Party from providing truthful testimony\nin court, administrative hearings, arbitration, discovery responses, depositions, or as otherwise required by law.\n(16) This Agreement contains the entire agreement between the parties hereto, regarding the issues and disputes which have arisen in the Federa Action, the\nFlorida Action and the Singapore Action, and all other related matters regarding the rights, duties and obligations under the aforementioned matters, and no\npromise, inducement, agreement or other consideration not herein expressed has been made between the parties. It is expressly understood and agreed that\nthis Agreement may not be altered, amended, modified or otherwise changed in any respect or particular whatsoever, except by a writing duly executed by an\nauthorized representative of each of the Parties.\n(17) The undersigned acknowledge that they have read the foregoing provisions of this document before executing it and that they understand its provisions,\nor\nhave made any\n9\nnecessary inquiries to understand its provisions. Further, the undersigned have been advised by counsel of their choice of the advisability of accepting the settlement herein set out. The persons executing this\nAgreement for the Company, Imagine, and Kingsmen affirm, respectively, that they possess authority to execute this Agreement on the entity's behalf. As between the Company, and Zaller and Imagine this\nAgreement shal be deemed to have been made and entered into in the State of Georgia, and shall in all respects be interpreted, enforced and governed under the laws of the State of Georgia, without regard to\nconflicts of laws principles or choice of law provisions. The language of all parts of this Agreement shall be construed as a whole, according to its plain meaning, and not be interpreted or construed against or for any\nof the Parties. Any dispute and/or difference between the Company and Kingsmen arising out of and/or in connection with this Agreement (including but not limited to any questions regarding its existence, effect,\nvalidity and/or termination) shall be referred to and finally resolved by international arbitration in Singapore in accordance with the Rules of the Singapore International Arbitration Centre ("SIAC Rules") for the time\nbeing in force, which rules are deemed to be incorporated by reference in this clause. The Tribunal shall consist of a single arbitrator appointed by the Chairman of the SIAC The language of the arbitration shall be\nEnglish The prevailing party in any action or proceedings brought to enforce and/or because of an alleged breach of this Agreement shall be entitled to recovery of its costs and attorneys fees incurred in the action.\nAs between the Company and Kingsmen, any dispute arising under and/or in connection with this Agreement shall be governed solely and only by the laws of the Republic of Singapore (excluding private international\nlaw considerations) as if both the Company and Kingsmen and the transaction are domiciled in the Republic of Singapore.\n10\n(18) Should any provision of this Agreement be held by a court or tribunal of competent jurisdiction to be unenforceable, or enforceable only if modified, that\nholding shal not affect the validity of the remainder of this Agreement, the balance of which shal continue to be binding upon the parties, with any modification to\nbecome a part hereof and treated as though contained in this original Agreement.\n(19) Zaller, Imagine and the Company consent to personal jurisdiction and venue in connection with any alleged breach of this Agreement in the United States\nDistrict Court for the Northern District of Georgia, Atlanta Division, or an appropriate state court forum for Atlanta, eorgia. This Agreement shal be binding\nupon, and inure to the benefit of the successors and assigns of the parties. The prevailing party in any action brought to enforce and/or because of an alleged\nbreach of this Agreement shal be entitled to recovery of its costs and attorneys' fees incurred in the action.\n(20) This Agreement shall be effective whether executed as a single document or in counterparts, and taken together shal be deemed a single binding and\nenforceable instrument. True copies of this Agreement have the same force and effect as an original.\nTHE UNDERSIGNED HAVE READ THIS RELEASE, UNDERSTANDS IT FULLY, AND SIGNS IT VOLUNTARILY, WITH THE INTENT TO BE LEGALLY BOUND\nTHEREBY.\nIN WITNESS WHEREOF, we do hereby set our hands and seals.\n(1) IMAGINE EXHIBITIONS, INC. a Georgia corporation\nBy:\nTitle:\nDate:\n11\n(2)\nIMAGINE EXHIBITIONS, INC., a Nevada corporation\nBy:\nTitle:\nDate:\n(3) IMAGINE EXHIBITIONS PTE, Ltd.\nBy:\nTitle:\nDate:\n(4)\nTZ, Inc.\nBy:\nTitle:\nDate:\n(5) THOMAS ZALLER\n(6) PREMIER EXHIBITIONS, INC.\nBy:\nTitle:\nDate:\n12\n(7)\nRMS TITANIC, INC.\nBy:\nTitle:\nDate:\n(8)\nKINGSMEN EXHIBITS PTE, LTD.\nBy:\nTitle:\nDate:\n(9)\nKINGSMEN CREATIVES LTD.\nBy:\nTitle\nDate:\n13	EXHIBIT 10.1\nFULL AND GENERAL MUTUAL RELEASE,\nSETTLEMENT AND CONFIDENTIALITY AGREEMENT\nThis FULL AND GENERAL RELEASE, , Settlement and Confidentiality Agreement (hereinafter this “Agreement”) is entered into between RMS TITANIC, INC .\n(“RMST”) and PREMIER EXHIBITIONS, INC . (“Premier”, and hereinafter collectively with RMST referred to as “the Company”) , and THOMAS ZALLER\n(“Zaller”) , IMAGINE EXHIBITIONS , INC. , a Georgia corporation (“Imagine-Georgia”), IMAGINE EXHIBITIONS , INC. , a Nevada corporation (“Imagine-Nevada”),\nIMAGINE EXHIBITIONS PTE, LTD . (“Imagine PTE”) , and TZ, INC . (collectively, “Imagine”) and KINGSMEN EXHIBITS PTE LTD. and its parent company,\nKINGSMEN CREATIVE, LTD . (collectively “Kingsmen”) and altogether collectively referred to as the “Parties. ”\nWHEREAS, RMST and Premier, are Florida corporations whose principal places of business are in Atlanta, Georgia, and who present museum quality exhibitions\nfeaturing artifacts recovered from the wreck site of the RMS Titanic (“the RMST Exhibition”); and\nWHEREAS, on or about June 13, 2011 the Company entered into an agreement to present the RMST Exhibition in Singapore;\nWHEREAS, Zaller is a former employee of the Company who resides in Atlanta, Georgia, and who is the CEO and sole shareholder for Imagine-Georgia,\nImagine-Nevada, Imagine PTE, and TZ, Inc. (collectively, “Imagine”), which companies are engaged in the entertainment business, and, among other things,\nprovide exhibitions at museums and other public venues, including their own Titanic exhibition (“the Imagine Exhibition”); and\nWHEREAS, Kingsmen are Singapore companies whose business operations include the design, production and construction of interiors, including for exhibitions;\nand,\nWHEREAS, RMST, TZ, Inc. , Imagine PTE, Zaller and Kingsmen were all involved in the staging and presentation of the RMST Exhibition in Singapore in 2011\nand 2012, and during which time RMST alleges that it provided Zaller and Kingsmen certain trade secrets, intellectual property and other confidential and\nproprietary information solely for use in the Singapore exhibition; and\nWHEREAS, following the period when the RMST Exhibition was being presented in Singapore, Imagine-PTE and Kingsmen entered into an agreement for the\npresentation of the Imagine Exhibition in Macau, and presented the Imagine Exhibition in Macau on or about October 22, 2012 through March 31, 2013; and\nWHEREAS, a dispute exists between the parties as to whether Zaller, Imagine and Kingsmen misappropriated and used trade secrets, intellectual property,\nand/or proprietary information of the Company, and improperly copied the trade dress of the RMST Exhibition in the Imagine Exhibition; and\nWHEREAS, Imagine, Zaller and Kingsmen have denied that they have misappropriated or used any trade secrets, intellectual property and/or proprietary\ninformation that the Company claims to own and have continued to market and promote their Imagine Exhibition throughout the world (the “Existing Imagine\nExhibition”); and\nWHEREAS, the Company filed a civil action in the United States District Court for the Northern District of Georgia, Atlanta Division (“the Federal Action”) , against\nZaller and Imagine (Civil Action No. 1:13cv-00625 -WSD) alleging, among other things, breach of contract, fraud and fraudulent inducement, trade dress and\nLanham Act violations, and misappropriation of trade secrets; and\n2\nWHEREAS, Kingsmen instituted a civil action in the High Court of the Republic of Singapore (Suit No.: 365 of 2013) against the Company (“the Singapore\nAction”), alleging that Kingsmen has not infringed or improperly used any of the Company’s trademarks, trade dress, trade secrets or other intellectual property;\nand\nWHEREAS, the Company filed a civil action in the United States District Court for the Middle District of Florida, Jacksonville Division, against Kingsmen (Case\nNo. 3:13-cv-463-J -20-TEM), ( “the Florida Action”), alleging similar claims but which case has been dismissed; and\nWHEREAS, the Company has filed a counterclaim in the Singapore Action seeking recovery for damages allegedly sustained from Kingsmen’s activities, and\nWHEREAS, Zaller and Imagine deny the allegations asserted against them by the Company, including but not limited to those allegations asserted in the Federal\nAction; and\nWHEREAS, all the parties referenced herein now wish to settle any and all differences and controversies between them, including those set forth, or which could\nhave been set forth in the Federal Action, the Florida Action and the Singapore Action\n(1) NOW THEREFORE, in consideration of the covenants, conditions and promises set forth herein and for other good and valuable consideration, the receipt\nand sufficiency and delivery of which is hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: Imagine (on its own account\nand/or on behalf of any other party or person, including but not limited to insurers) shall pay to the Company, the sum of Seven Hundred Twenty-Five Thousand\nDollars ($725,000). The sum stated above is the sole monetary consideration for this release. The monetary consideration shall be paid as follows: $725,000 by\ncertified check(s) and/or wire transfers to the Company on or before November 30, 2014. Zaller, Imagine and Kingsmen, and their insurers and counsel, make no\nrepresentations or warranties as\n3\nto the tax treatment, implications or consequences to the Company from these payments; and the Company assumes full responsibility for the tax consequences of these payments, if any.\n(2) Kingsmen agrees, represents and warrants that it shall not exhibit or participate in any Titanic-themed exhibition with Zaller or Imagine (excluding the Existing\nImagine Exhibition) anywhere for 24 months from the date of execution of this Agreement.\n(3) Zaller and Imagine agree, represent and warrant that they will not engage or participate in any Titanic-themed exhibitions (excluding the Existing Imagine\nExhibition) for 24 months from the date of execution of this Agreement\n(4) Zaller and Imagine agree, represent and warrant that they will not stage a Titanic-themed Exhibition, including the Existing Imagine Exhibition, in the United\nStates or Canada for 36 months from the date of execution of this Agreement, or Western Europe (defined herein as the United Kingdom, Ireland, France,\nGermany, Italy, Switzerland, Spain, Portugal, Sweden, Denmark and Norway only) for 24 months from the date of execution of this Agreement.\n(5) In consideration of the payment set forth in paragraph one (1) above, and for other good and valuable consideration, the receipt of which is hereby\nacknowledged, the Company, together with its affiliates, subsidiaries, parents, shareholders, officers, principals, employees, directors, agents, insurers, attorneys,\nand assigns fully, finally, and completely releases, quitclaims and discharges Zaller, Imagine and Kingsmen, their predecessors and successors, present and\nformer affiliates, subsidiaries, legal representatives, heirs, spouses, executors, administrators, insurers, employees, officers, directors, shareholders, attorneys,\nindependent contractors and agents from each and every present, past or future claim, debt, demand, judgment, cause of action, rights, damages, costs or suits,\nresponsibility and liability of every kind and character whatsoever, known or unknown, suspected or unsuspected, now existing,\n4\nwhether based on statute, federal law, common law, international law, tort, contract, or any other theory of recovery, pertaining to all matters which are, have been or may have been or could have been the subject of\nand/or in connection with the Federal Court Action, the Florida Action, the Singapore Action or arising out of and/or in connection with any RMST Exhibition, and from any and all alleged breaches and damages\nbetween the parties, which existed up to the date of execution of this Agreement. Further or additionally, the Company shall write to Las Vegas Sands Corporation, the Venetian in Macau and Marina Bay Sands in\nSingapore notifying them that the disputes between the Company and Zaller/Imagine/Kingsmen have been fully and finally resolved with Zaller, Imagine and Kingsmen denying any liability to the Company and\nmaking no admissions with respect to the resolution of the dispute (“the Sands Letter”). A draft of the Sands Letter shall first be sent to Zaller, Imagine and Kingsmen prior to it being sent and within seven (7) days of\nthe date of payment set forth in paragraph 1. The Sands Letter shall be sent by the Company within seven (7) days of approval of the draft by Zaller, Imagine and Kingsmen.\n(6) As a required condition of this settlement, the Company agrees to dismiss with prejudice the Federal Court Action, and the counterclaim in the Singapore\nAction, within five (5) days of receipt of the payment described in paragraph one (1) above, and covenants not to sue Zaller, Imagine and Kingsmen for the\nreleased claims set out in this Agreement and/or for any claims alleged or which could have been alleged in the Federal Court Action, the Florida Action, the\nSingapore Action, or which existed up to the date of execution of this Agreement whether known or unknown.\n(7) In consideration of the dismissal of the Federal Court Action, the counterclaim in the Singapore Action, the aforesaid releases, and other good and valuable\nconsideration, Zaller, Imagine and Kingsmen, and their heirs, spouses, executors, administrators, affiliated companies,\n5\nsubsidiaries, current and former officers, directors, managers, shareholders, members, employees, agents, attorneys, and their insurers, representatives, successors and assigns, do fully and finally, completely\nrelease, quitclaim and discharge the Company, its predecessors and successors, present and former affiliates, subsidiaries, officers, directors, shareholders, members, employees, attorneys, insurers, and agents\nfrom each and every present, past or future claim, debt, demand, judgment, cause of action, rights, damages, costs, or suits, responsibility and liability of every kind and character whatsoever, known or unknown,\nsuspected or unsuspected, now existing, whether based on statute, federal law, common law, international law, tort, contract, or any other theory of recovery, pertaining to the Company, including as to the RMST\nExhibitions, and for all actions or inactions including, but not limited to, all claims and counts set forth in the Singapore Action, and/or arising out of or otherwise related to the incident(s) referenced in the\nabove-identified litigation, including without limitation, all rights or claims that also could have been asserted in the Federal Court Action, the Florida Action, or the Singapore Action, and from all alleged breaches and\ndamages between the parties which existed up to the date of execution of this Agreement, whether known or unknown. Kingsmen further agrees that, within five (5) days of execution of this Agreement, it will together\nwith the Company’s Singapore lawyers, dismiss with prejudice its claims and the Company’s counterclaims in the Singapore Action, each party therein to bear its own costs and attorneys’ fees.\n(8) As a required condition of this settlement, the Company agrees to dismiss with prejudice all claims alleged against Kingsmen in its Counterclaim in the\nSingapore Action, and covenants not to sue Kingsmen for the released claims and/or any claims alleged or which could have been alleged in the Florida Action or\nthe Singapore Action, or which existed up to the date\n6\nof execution of this Agreement, and/or in connection with the matters set out therein (including in the preamble of this Agreement) whether known or unknown.\n(9) The Parties further agree that irrespective of any prior rulings or orders , they shall bear their own costs, attorneys’ fees and litigation expenses.\n(10) The Parties agree to assume full responsibility for and to indemnify and hold each other harmless from any and all liability for claims or liens which are, or\nmay be, asserted against them which arise out of or otherwise relate to their alleged obligations incurred after commencement of the Federal Action, including,\nbut not limited to, claims or liens for legal, expert witness or any other services rendered or provided to or on behalf of the parties or otherwise arising out of or by\noperation of statute or common law.\n(11) Zaller, Imagine and Kingsmen do not admit, but rather expressly deny, the allegations of liability and/or wrongdoing set forth against them in the Federal\nAction, the Florida Action and the Singapore Action, and the aforesaid monetary consideration is paid in compromise of a disputed claim or claims in order to\navoid the expenses of further investigation and litigation.\n(12) The Parties represent and warrant that they have not conveyed, transferred, pledged, hypothecated, or in any manner whatsoever assigned or encumbered\nany of the claims set forth or which could have been set forth in the Federal Action, the Florida Action and the Singapore Action.\n(13) The undersigned specifically authorize and direct Robert S. Thompson, Esquire and Robert W. McFarland, Esquire, or their designees, to execute orders\ndismissing the Federal Court Action with prejudice, and further direct the law firm of TSMP Law Corporation and\n7\nCherrin Wong and the law firm of Rajah Tann, to execute all documents necessary to dismiss with prejudice the Claims and Counterclaim in the Singapore Action.\n(14) As a material inducement to enter this settlement, the Parties have agreed and do agree that the nature, terms and conditions of this Agreement are strictly\nconfidential and shall not in the future be disclosed, other than to the following: (A) the Parties to this Agreement and any subsidiary, affiliate, associate, employee\nor parent companies and their insurers, reinsurers, auditors, accountants and attorneys, to further the legitimate business purposes of such Parties; (B) between\nand amongst the Parties in connection with the required notices and other proceedings set forth in this Agreement; (C) the Internal Revenue Service, or any other\nstate, federal, or local governmental taxing authority, in connection with tax returns, amendments or related documents; (D) the Securities and Exchange\nCommission (“SEC”) in such filings as the Company is required to provide, and such SEC disclosures may state that the Federal Action has been resolved by\nagreement of the parties therein, and that the Company is receiving funds from the settlement without any admissions of fault or liability, and shall further state\nthat the Singapore Action has been dismissed by agreement of Kingsmen and the Company; and that Zaller, Imagine and Kingsmen deny any liability to the\nCompany ; (E) any person designated pursuant to an order from a court of competent jurisdiction, or as may otherwise be required by law, provided that the\ndisclosing Party shall make reasonable efforts to have this Agreement covered by protective order limiting dissemination to those involved in such proceedings;\n(F) in the event of a dispute or other litigation between any of the Parties involving the provisions of this Agreement, but in such event the disclosure shall be\nunder terms that preserve the confidentiality of the information disclosed; (G) the Singapore Exchange (“SGX ”) in such filings as Kingsmen is required to provide\nbut such SGX disclosure shall be limited to a bare or simple\n8\nstatement relating to the outcome of the Singapore Action and, if relevant, that the Company denies any liability to Kingsmen and vice versa or (H) the Parties agree in writing to the specific disclosure. To the extent\nnecessary, the Parties assign a value of $500.00 of the total consideration for this Agreement.\n(15) Each of the Parties further agrees that they will not say or do anything that would or could be construed to defame, libel or disparage the reputation of any of\nthe other Parties, except as required by law. The Parties further agree that they will require their respective employees who have knowledge of the existence and\nterms of this Agreement, for so long as they remain employees, to not say or do anything that would or could be reasonably construed to defame, libel or\ndisparage the reputation of any of the other Parties, except as required by law. Nothing contained herein shall prevent any Party from providing truthful testimony\nin court, administrative hearings, arbitration, discovery responses, depositions, or as otherwise required by law.\n(16) This Agreement contains the entire agreement between the parties hereto, regarding the issues and disputes which have arisen in the Federal Action, the\nFlorida Action and the Singapore Action, and all other related matters regarding the rights, duties and obligations under the aforementioned matters, and no\npromise, inducement, agreement or other consideration not herein expressed has been made between the parties. It is expressly understood and agreed that\nthis Agreement may not be altered, amended, modified or otherwise changed in any respect or particular whatsoever, except by a writing duly executed by an\nauthorized representative of each of the Parties.\n(17) The undersigned acknowledge that they have read the foregoing provisions of this document before executing it and that they understand its provisions, or\nhave made any\n9\nnecessary inquiries to understand its provisions. Further, the undersigned have been advised by counsel of their choice of the advisability of accepting the settlement herein set out. The persons executing this\nAgreement for the Company, Imagine, and Kingsmen affirm, respectively, that they possess authority to execute this Agreement on the entity’s behalf. As between the Company, and Zaller and Imagine, this\nAgreement shall be deemed to have been made and entered into in the State of Georgia, and shall in all respects be interpreted, enforced and governed under the laws of the State of Georgia, without regard to\nconflicts of laws principles or choice of law provisions. The language of all parts of this Agreement shall be construed as a whole, according to its plain meaning, and not be interpreted or construed against or for any\nof the Parties. Any dispute and/or difference between the Company and Kingsmen arising out of and/or in connection with this Agreement (including but not limited to any questions regarding its existence, effect,\nvalidity and/or termination) shall be referred to and finally resolved by international arbitration in Singapore in accordance with the Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time\nbeing in force, which rules are deemed to be incorporated by reference in this clause. The Tribunal shall consist of a single arbitrator appointed by the Chairman of the SIAC. The language of the arbitration shall be\nEnglish. The prevailing party in any action or proceedings brought to enforce and/or because of an alleged breach of this Agreement shall be entitled to recovery of its costs and attorneys’ fees incurred in the action.\nAs between the Company and Kingsmen, any dispute arising under and/or in connection with this Agreement shall be governed solely and only by the laws of the Republic of Singapore (excluding private international\nlaw considerations) as if both the Company and Kingsmen and the transaction are domiciled in the Republic of Singapore.\n10\n(18) Should any provision of this Agreement be held by a court or tribunal of competent jurisdiction to be unenforceable, or enforceable only if modified, that\nholding shall not affect the validity of the remainder of this Agreement, the balance of which shall continue to be binding upon the parties, with any modification to\nbecome a part hereof and treated as though contained in this original Agreement.\n(19) Zaller, Imagine and the Company consent to personal jurisdiction and venue in connection with any alleged breach of this Agreement in the United States\nDistrict Court for the Northern District of Georgia, Atlanta Division, or an appropriate state court forum for Atlanta, Georgia. This Agreement shall be binding\nupon, and inure to the benefit of the successors and assigns of the parties. The prevailing party in any action brought to enforce and/or because of an alleged\nbreach of this Agreement shall be entitled to recovery of its costs and attorneys’ fees incurred in the action.\n(20) This Agreement shall be effective whether executed as a single document or in counterparts, and taken together shall be deemed a single binding and\nenforceable instrument. True copies of this Agreement have the same force and effect as an original.\nTHE UNDERSIGNED HAVE READ THIS RELEASE, UNDERSTANDS IT FULLY , AND SIGNS IT VOLUNTARILY, WITH THE INTENT TO BE LEGALLY BOUND\nTHEREBY.\nIN WITNESS WHEREOF, we do hereby set our hands and seals.\n(1) IMAGINE EXHIBITIONS, INC ., a Georgia corporation\nBy:\nTitle:\nDate:\n11\n(2) IMAGINE EXHIBITIONS, INC ., a Nevada corporation\nBy:\nTitle:\nDate:\n(3) IMAGINE EXHIBITIONS PTE, Ltd.\nBy:\nTitle:\nDate:\n(4) TZ, Inc.\nBy:\nTitle:\nDate:\n(5) THOMAS ZALLER\n(6) PREMIER EXHIBITIONS, INC.\nBy:\nTitle:\nDate:\n12\n(7)\nRMS TITANIC, INC .\nBy:\nTitle:\nDate:\n(8)\nKINGSMEN EXHIBITS PTE, LTD .\nBy:\nTitle:\nDate:\n(9)\nKINGSMEN CREATIVES LTD.\nBy:\nTitle:\nDate:\n13
+2a6a8d166f62b6920a894a34d853e0c1.pdf	effective_date jurisdiction party term	EX-99.D.3 8 d818960dex99d3.htm EX-99 .D.3\nExhibit (d)(3)\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) dated April 15, 2014 (the “Effective Date”), between World Energy Solutions, Inc., a\nDelaware corporation (“World Energy”) with offices at 100 Front Street, Worcester, Massachusetts 01608 and EnerNOC, Inc., a Delaware\ncorporation located at One Marina Park Drive, Boston, Massachusetts 02210 (“ENOC”).\n1. Background. World Energy and ENOC (the “parties”) intend to engage in discussions and negotiations concerning a possible transaction\nor business relationship between them. In the course of such discussions and negotiations and in the course of any such transaction or business\nrelationship, it is anticipated that each party will disclose or deliver to the other party and to the other party’s directors, officers, employees,\nagents or advisors (including, without limitation, attorneys, accountants, consultants, bankers, financial advisors and members of advisory\nboards) (collectively, “Representatives”) certain of its trade secrets or confidential or proprietary information for the purposes of enabling the\nother party to evaluate the feasibility of such transaction or business relationship and to perform its obligations and exercise its rights under any\nsuch transaction or business relationship that is agreed to between the parties (the “Purposes”). The parties have entered into this Agreement in\norder to assure the confidentiality of such trade secrets and confidential or proprietary information in accordance with the terms of this\nAgreement. As used in this Agreement, the party disclosing Proprietary Information (as defined below) is referred to as the “Disclosing Party”;\nthe party receiving such Proprietary Information is referred to as the “Recipient”.\n2. Proprietary Information. As used in this Agreement, the term “Proprietary Information” shall mean all trade secrets or confidential or\nproprietary information designated as such in writing by the Disclosing Party, whether by letter or by the use of an appropriate proprietary stamp\nor legend, prior to or at the time any such trade secret or confidential or proprietary information is disclosed by the Disclosing Party to the\nRecipient. Notwithstanding the foregoing, information which is orally or visually disclosed to the Recipient by the Disclosing Party, or is\ndisclosed in writing without an appropriate letter, proprietary stamp or legend, shall constitute Proprietary Information if it would be apparent to\na reasonable person, familiar with the Disclosing Party’s business and the industry in which it operates, that such information is of a confidential\nor proprietary nature the maintenance of which is important to the Disclosing Party. In addition, the term “Proprietary Information” shall be\ndeemed to include: (a) any notes, analyses, compilations, studies, interpretations, memoranda or other documents prepared by the Recipient or its\nRepresentatives which contain, reflect or are based upon, in whole or in part, any Proprietary Information furnished to the Recipient or its\nRepresentatives pursuant hereto; and (b) the existence or status of, and any information concerning, the discussions between the parties\nconcerning the possible transaction or business relationship.\n3. Use and Disclosure of Proprietary Information. The Recipient and its Representatives shall use the Proprietary Information of the\nDisclosing Party only for the Purposes and such Proprietary Information shall not be used for any other purpose without the prior written consent\nof the Disclosing Party. The Recipient and its Representatives shall hold in confidence, and shall not disclose any Proprietary Information of the\nDisclosing Party; provided. however, that (i) the Recipient may make any disclosure of such information to which the Disclosing Party gives its\nprior written consent; and (ii) any of the Proprietary Information may\nbe disclosed by the Recipient to its Representatives who need to know such information in connection with the Purposes and who are informed\nof the confidential nature of such information and of the terms of this Agreement. In any event, the Recipient shall be responsible for any breach\nof this Agreement by any of its Representatives, and agrees, at its sole expense, to take reasonable measures to restrain its Representatives from\nprohibited or unauthorized disclosure or use of the Proprietary Information, Notwithstanding anything contained in this Agreement to the\ncontrary, this Agreement shall not prohibit the Recipient from disclosing Proprietary Information of the Disclosing Party to the extent required in\norder for the Recipient to comply with applicable laws and regulations, provided that the Recipient provides prior written notice of such required\ndisclosure to the Disclosing Party and takes reasonable and lawful actions to avoid and/or minimize the extent of such disclosure.\n4. Limitation on Obligations. The obligations of the Recipient specified in Section 3 above shall not apply, and the Recipient shall have no\nfurther obligations, with respect to any Proprietary Information to the extent that such Proprietary Information:\n(a) is generally known to the public at the time of disclosure or becomes generally known without Recipient or its Representatives\nviolating this Agreement;\n(b) is in the Recipient’s possession at the time of disclosure;\n(c) becomes known to the Recipient through disclosure by sources other than the Disclosing Party without such sources violating any\nconfidentiality obligations to the Disclosing Party; or\n(d) is independently developed by the Recipient without reference to or reliance upon the Disclosing Party’s Proprietary Information.\n5. Ownership of Proprietary Information. The Recipient agrees that it shall not receive any right, title or interest in, or any license or right\nto use, the Disclosing Party’s Proprietary Information or any patent, copyright, trade secret, trademark or other intellectual property rights\ntherein, by implication or otherwise. Each of the parties hereto represents, warrants and covenants that the trade secrets which it discloses to the\nother party pursuant to this Agreement have not been stolen, appropriated, obtained or converted without authorization.\n6. Return of Proprietary Information. The Recipient shall, upon the written request of the Disclosing Party, return to the Disclosing Party all\nProprietary Information received by the Recipient or its Representatives from the Disclosing Party (and all copies and reproductions thereof). In\naddition, the Recipient shall destroy: (i) any notes, reports or other documents prepared by the Recipient which contain Proprietary Information\nof the Disclosing Party; and (ii) any Proprietary Information of the Disclosing Party (and all copies and reproductions thereof) which is in\nelectronic form or cannot otherwise be returned to the Disclosing Party. Alternatively, upon written request of the Disclosing Party, the Recipient\nshall destroy all Proprietary Information received by the Recipient or its Representatives from the Disclosing Party (and all copies and\nreproduction thereof) and any notes, reports or other documents prepared by the Recipient which contain Proprietary Information of the\nDisclosing Party. Notwithstanding the return or destruction of the Proprietary Information, the Recipient and its Representatives will continue to\nbe bound by their obligations of confidentiality and other obligations hereunder.\n-\n2-\n7. Securities. Recipient represents that it is aware, and will advise its representatives who are informed of the matters that are the subject of\nthis Agreement, of the restrictions imposed by the applicable federal and state securities laws on the purchase or sale of securities by any person\nwho has received material, non-public information regarding a company with publicly traded securities, as well as the restrictions making it\nunlawful to communicate such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or\nsell securities in reliance upon such information.\n8. Non-Solicitation of Employees Covenant. Each party agrees that during the term of this Agreement and for the period of two (2) years\nafter the termination of this Agreement, it will not, either directly or through others solicit or attempt to solicit any employee of the other party\nwith whom such party came into contact with during the evaluation of a possible transaction between the parties to become an employee,\nconsultant or independent contractor to or for itself or any of its affiliates; provided,-however, that nothing contained herein shall be deemed to\nprohibit any party, either directly or through others, from (i) conducting any general solicitation not specifically targeted at any such employee,\nand, for the avoidance of doubt, the hiring or engagement by a party of any employee of the other party who responds to such general advertising\nor who approaches such party or any of its affiliates without any solicitation or inducement to leave the employ of the other party or any of its\naffiliates shall not be deemed a breach of this Section 8, or (ii) soliciting for employment or hiring any employee of the other party or any of its\naffiliates who was terminated by the other party or any of its affiliates; each subject to such employee’s restrictive covenants\n9. Miscellaneous.\n(a) This Agreement supersedes all prior agreements, written or oral, between the parties relating to the subject matter of this\nAgreement. This Agreement may not be modified, changed or discharged, in whole or in part, except by an agreement in writing signed by the\nparties.\n(b) This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Agreement shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Agreement are necessary for the protection of the business and goodwill of the parties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Agreement will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n-\n3-\n(e) The confidentiality obligations imposed by this Agreement shall continue with respect to a particular item of Proprietary\nInformation until the fifth anniversary of the disclosure of such Proprietary Information to Recipient pursuant to this Agreement; provided,\nhowever, that the confidentiality obligations imposed by this Agreement with respect to source code included in the Proprietary Information shall\ncontinue in perpetuity.\n(f) For the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be\ndeemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC.\nENERNOC, INC.\nBy: /s/ Philip V. Adams\nBy: /s/ Matthew J. Cushing\nName: Philip V. Adams\nName: Matthew J. Cushing\nTitle: CEO\nTitle: General Counsel & VP.\nDate: 4/15/14\nDate: April 15, 2014\n-\n4-\nAMENDMENT NO. 1 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 1 to Non-Disclosure Agreement (the “Amendment”), dated June 11, 2014, between World Energy Solutions, Inc., a\nDelaware corporation (“World Energy”) with offices at 100 Front Street, Worcester, MA, 01608 and EnerNOC, Inc., a Delaware corporation\nlocated at One Marina Park Drive, Boston, Massachusetts 02210 (“ENOC”), is entered into in order to amend the Non-Disclosure Agreement\ndated April 15, 2014 between World Energy and ENOC (the “Original Agreement”). Capitalized terms used but not defined herein shall have the\nrespective meanings ascribed thereto in the Original Agreement.\nTo further facilitate a possible transaction or business relationship between World Energy and ENOC and to allow for more effective\ndiligence review, each of the parties, intending to be legally bound, hereby amend the Original Agreement as follows:\n1. Exclusivity and Standstill. A new section 8 A shall be inserted as follows:\n8A. (1) Standstill Agreement. In consideration of the Proprietary Information being provided by World Energy to ENOC, ENOC\nagrees that until March 11, 2015 (“Standstill Period”), neither ENOC nor any of its affiliates or its or their respective officers, directors,\ninvestment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, the “Representatives”) acting on\nENOC’s behalf will, unless specifically invited in writing by World Energy’s Board of Directors or its duly authorized representative:\n(i) acquire, offer to acquire, or agree to acquire or beneficially own, directly or indirectly, by purchase or otherwise, any securities or\ndirect or indirect rights to acquire any securities, or any indebtedness of World Energy or any subsidiary thereof, or any successor entity;\n(ii) make, effect, initiate, cause or participate in any acquisition of any assets of World Energy or any subsidiary thereof, or any\nsuccessor entity;\n(iii) make, effect, initiate, cause or participate in, or make any public announcement with respect to, or submit a proposal for, any\ntender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction\ninvolving World Energy or any subsidiary of the other party, or involving any securities or assets of World Energy or any securities or assets of\nany subsidiary of World Energy;\n(iv) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange\nAct of 1934 (the “34 Act”)) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of\nWorld Energy;\n(v) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the 34 Act) in connection with any of the\nforegoing or act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of World Energy;\n(vi) enter into any discussions, negotiations, arrangements or agreements with any other person relating to any of the foregoing;\n(vii) request World Energy or any of World Energy’s Representatives to amend or waive any provisions of this paragraph in a manner\nthat would require public disclosure of such request; or\n(viii) take any action that could reasonably be expected to require World Energy to make a public announcement regarding the\npossibility of any of the events described in sub-clauses (i) through (vii);\nprovided, however, that none of the foregoing restrictions set forth in this Section 8A shall prohibit ENOC from seeking to acquire or acquiring\nany securities of another business entity that provides energy related goods or services and that already beneficially owns securities of World\nEnergy, but expressly excluding a trust, hedge fund or other similar investment vehicle or any current 5% holders of World Energy that have filed\na Schedule 13D or Schedule 13G with the Securities and Exchange Commission. Notwithstanding the foregoing provisions of this paragraph 8A,\nthe foregoing restrictions set forth in this Section 8A shall automatically be inoperative, terminate and be of no further force and effect if\n(A) World Energy enters into a definitive agreement with respect to a merger, consolidation, business combination, tender or exchange offer,\nrecapitalization, restructuring, sale, equity issuance or other transaction involving the sale, transfer, issuance or exchange of all or a controlling\nportion of World Energy’s equity securities (or securities convertible into such controlling interest) or any material assets of World Energy or its\naffiliates or subsidiaries representing more than fifty percent (50%) of the consolidated earning power of World Energy and its affiliates or\nsubsidiaries (any of such transactions referred to herein as an “Acquisition Transaction”), (B) World Energy shall have become insolvent, made\nan assignment for the benefit of creditors or voluntarily or involuntarily filed a petition for bankruptcy, or (C) World Energy, its board of\ndirectors or any of its Representatives (i) solicits offers in respect of an Acquisition Transaction (whether through a confidential investment\nbanker-led “process” or otherwise) or (ii) publicly announces an intent to pursue an Acquisition Transaction and fails to (i) with respect to clause\n(C)(i) above, solicit an offer from ENOC; or (ii) with respect to clause C(ii), invite ENOC to participate in any process for the evaluation,\nnegotiation and pursuit of the Acquisition Transaction described in such public announcement. World Energy acknowledges that in connection\nwith the evaluation of a possible business relationship or transaction, ENOC may receive material non-public information regarding World\nEnergy and that federal and state securities laws restrict the trading of securities by a person who has received material non-public information.\nFollowing termination of the foregoing restrictions in this Section 8A, ENOC and its Representatives shall be permitted (notwithstanding any\nother provision of this Agreement) to consider Proprietary Information in formulating, negotiating, and pursuing an Acquisition Transaction by\nENOC.\nNotwithstanding anything to the contrary in this Section 8A, during the Standstill Period, ENOC shall be permitted at any time and\nfrom time to time to submit to the President and/or Chief Executive Officer of World Energy one or more offers, proposals or indications of\ninterest related to a transaction between the parties, provided that each such submission is made on a confidential basis and states that ENOC\ndoes not intend to make a public announcement related to such submission or its text or contents and that ENOC believes, after discussion with\nits counsel, that the receipt thereof by World Energy does not require public disclosure of such submission.\n(2) Exclusivity. In consideration of ENOC agreeing to the Standstill Agreement above, World Energy agrees that during the period\ncommencing on the signature of this Amendment No. 1 and ending at 5:30 p.m . in Boston, MA, on June 27, 2014 (the “Exclusivity Period”),\nWorld Energy shall not, and shall cause its directors, President/Chief Executive Officer, Chief Financial Officer, investment bankers, attorneys\nand other financial advisors (collectively, the “World Energy Representatives”) not to, directly or indirectly:\n(i) initiate, solicit, encourage (including by way of providing information), facilitate or induce the submission of any inquiries, proposals\nor offers that constitute or may reasonably be expected to lead to, any Acquisition Transaction;\n(ii) engage or participate in any discussions, negotiations or communications regarding, or provide or cause to be provided any non-\npublic information or data relating to World Energy or any of its subsidiaries in connection with, or have any discussions with any\nperson relating to, any actual or proposed Acquisition Transaction, or otherwise encourage or facilitate any effort or attempt to make\nor implement any Acquisition Transaction;\n(iii) approve, endorse or recommend, or publicly propose or announce an intention to approve, endorse or recommend, any Acquisition\nTransaction;\n(iv) enter into any letter of intent, agreement in principle, merger agreement, financing agreement, acquisition agreement, option\nagreement or other similar agreement relating to any Acquisition Transaction; or\n(v) approve any transaction or any third party becoming an “interested stockholder” under Section 203 of the Delaware General\nCorporation Law or otherwise exempt any person from any applicable takeover statute.\nWorld Energy agrees that it shall take all necessary steps to promptly inform the World Energy Representatives involved in the transactions\ncontemplated hereby of the obligations undertaken in this Amendment.\nExcept as expressly set forth in Section 8A(1) hereof, the expiration of the Exclusivity Period hereunder will not terminate or otherwise\naffect any of the other provisions of this Agreement.\n2. No Other Amendments. Except as expressly amended hereby, the Original Agreement shall remain in full force and effect in all respects.\n3. Miscellaneous.\n(a) This Amendment will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Amendment shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Amendment are necessary for the protection of the business and goodwill of the patties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Amendment will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n(e) For the convenience of the parties, this Amendment may be executed by portable document format (pdf) copy or other facsimile\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on\nboth parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC.\nENERNOC, INC.\nBy: /s/ Philip V. Adams\nBy: /s/ Neil Moses\nName: Philip V. Adams\nName: Neil Moses\nTitle: CEO\nTitle: COO\nAMENDMENT NO. 2 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 2 to Non-Disclosure Agreement (the “Amendment”), dated August 20, 2014 (the “Effective Date”), between World\nEnergy Solutions, Inc., a Delaware corporation (“World Energy”) with offices at 100 Front Street, Worcester, MA, 01608 and EnerNOC, Inc., a\nDelaware corporation located at One Marina Park Drive, Boston, Massachusetts 02210 (“ENOC”), is entered into in order to amend the Non-\nDisclosure Agreement dated April 15, 2014 between World Energy and ENOC (the “Original Agreement”). Capitalized terms used but not\ndefined herein shall have the respective meanings ascribed thereto in the Original Agreement.\nTo further facilitate a possible transaction or business relationship between World Energy and ENOC and to allow for more effective\ndiligence review, each of the parties, intending to be legally bound, hereby amend the Original Agreement, as amended, as follows:\n1. Exclusivity and Standstill. Section 8A shall be amended and restated as follows:\n8A. (1) Standstill Agreement. In consideration of the Proprietary Information being provided by World Energy to ENOC, ENOC\nagrees that until June 12, 2015 (“Standstill Period”), neither ENOC nor any of its affiliates or its or their respective officers, directors, investment\nbankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, the “Representatives”) acting on ENOC’s\nbehalf will, unless specifically invited in writing by World Energy’s Board of Directors or its duly authorized representative:\n(i) acquire, offer to acquire, or agree to acquire or beneficially own, directly or indirectly, by purchase or otherwise, any securities or\ndirect or indirect rights to acquire any securities, or any indebtedness of World Energy or any subsidiary thereof, or any successor entity;\n(ii) make, effect, initiate, cause or participate in any acquisition of any assets of World Energy or any subsidiary thereof, or any\nsuccessor entity;\n(iii) make, effect, initiate, cause or participate in. or make any public announcement with respect to, or submit a proposal for, any\ntender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction\ninvolving World Energy or any subsidiary of the other party, or involving any securities or assets of World Energy or any securities or assets of\nany subsidiary of World Energy;\n(iv) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange\nAct of 1934 (the “34 Act”)) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of\nWorld Energy;\n(v) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the 34 Act) in connection with any of the\nforegoing or act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of World Energy;\n(vi) enter into any discussions, negotiations, arrangements or agreements with any other person relating to any of the foregoing;\n(vii) request World Energy or any of World Energy’s Representatives to amend or waive any provisions of this paragraph in a manner\nthat would require public disclosure of such request; or\n(viii) take any action that could reasonably be expected to require World Energy to make a public announcement regarding the\npossibility of any of the events described in sub-clauses (i) through (vii);\nprovided, however, that none of the foregoing restrictions set forth in this Section 8A shall prohibit ENOC from seeking to acquire or acquiring\nany securities of another business entity that provides energy related goods or services and that already beneficially owns securities of World\nEnergy, but expressly excluding a trust, hedge fund or other similar investment vehicle or any current 5% holders of World Energy that have filed\na Schedule 13D or Schedule 13G with the Securities and Exchange Commission. Notwithstanding the foregoing provisions of this paragraph 8A,\nthe foregoing restrictions set forth in this Section 8A shall automatically be inoperative, terminate and be of no further force and effect if\n(A) World Energy enters into a definitive agreement with respect to a merger, consolidation, business combination, tender or exchange offer,\nrecapitalization, restructuring, sale, equity issuance or other transaction involving the sale, transfer, issuance or exchange of all or a controlling\nportion of World Energy’s equity securities (or securities convertible into such controlling interest) or any material assets of World Energy or its\naffiliates or subsidiaries representing more than fifty percent (50%) of the consolidated earning power of World Energy and its affiliates or\nsubsidiaries (any of such transactions referred to herein as an “Acquisition Transaction”), (B) World Energy shall have become insolvent, made\nan assignment for the benefit of creditors or voluntarily or involuntarily filed a petition for bankruptcy, or (C) World Energy, its board of\ndirectors or any of its Representatives (i) solicits offers in respect of an Acquisition Transaction (whether through a confidential investment\nbanker-led “process” or otherwise) or (ii) publicly announces an intent to pursue an Acquisition Transaction and fails to (i) with respect to clause\n(C)(i) above, solicit an offer from ENOC; or (ii) with respect to clause (C)(ii), invite ENOC to participate in any process for the evaluation,\nnegotiation and pursuit of the Acquisition Transaction described in such public announcement. World Energy acknowledges that in connection\nwith the evaluation of a possible business relationship or transaction, ENOC may receive material non-public information regarding World\nEnergy and that federal and state securities laws restrict the trading of securities by a person who has received material non-public information.\nFollowing termination of the foregoing restrictions in this Section 8A, ENOC and its Representatives shall be permitted (notwithstanding any\nother provision of this Agreement) to consider Proprietary Information in formulating, negotiating, and pursuing an Acquisition Transaction by\nENOC.\nNotwithstanding anything to the contrary in this Section 8A, during the Standstill Period, ENOC shall be permitted at any time and\nfrom time to time to submit to the President and/or Chief Executive Officer of World Energy one or more offers, proposals or indications of\ninterest related to a transaction between the parties, provided that each such submission is made on a confidential basis and states that ENOC\ndoes not intend to make a public announcement related to such submission or its text or contents and that ENOC believes, after discussion with\nits counsel, that the receipt thereof by World Energy does not require public disclosure of such submission.\n(2) Exclusivity. In consideration of ENOC agreeing to the Standstill Agreement above, World Energy agrees that during the period\ncommencing on the Effective Date and ending at 5:30 p.m. in Boston, MA, on the forty-fifth day following the Effective Date (the “Exclusivity\nPeriod”), World Energy shall not, and shall cause its directors, President/Chief Executive Officer, Chief Financial Officer, other employees,\ninvestment bankers, attorneys, financial advisors and other advisors or agents (collectively, the “World Energy Representatives”) not to, directly\nor indirectly:\n(i) initiate, solicit, encourage (including by way of providing information), facilitate or induce the submission of any inquiries, proposals\nor offers that constitute or may reasonably be expected to lead to, any Acquisition Transaction;\n(ii) engage or participate in any discussions, negotiations or communications regarding, or provide or cause to be provided any non-\npublic information or data relating to World Energy or any of its subsidiaries in connection with, or have any discussions with any\nperson relating to, any actual or proposed Acquisition Transaction , or otherwise encourage or facilitate any effort or attempt to make\nor implement any Acquisition Transaction;\n(iii) approve, endorse or recommend, or publicly propose or announce an intention to approve, endorse or recommend, any Acquisition\nTransaction;\n(iv) enter into any letter of intent, agreement in principle, merger agreement, financing agreement, acquisition agreement, option\nagreement or other similar agreement relating to any Acquisition Transaction; or\n(v) approve any transaction or any third party becoming an “interested stockholder” under Section 203 of the Delaware General\nCorporation Law or otherwise exempt any person from any applicable takeover statute.\nWorld Energy agrees that it shall take all necessary steps to promptly inform the World Energy Representatives involved in the transactions\ncontemplated hereby of the obligations undertaken in this Amendment.\nExcept as expressly set forth in Section 8A(1) hereof, the expiration of the Exclusivity Period hereunder will not terminate or otherwise\naffect any of the other provisions of this Agreement.\n2. No Other Amendments. Except as expressly amended hereby, the Original Agreement shall remain in full force and effect in all respects.\n3. Miscellaneous.\n(a) This Amendment will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Amendment shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Amendment are necessary for the protection of the business and goodwill of the parties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Amendment will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n(e) For the convenience of the parties, this Amendment may be executed by portable document format (pdf) copy or other facsimile\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on\nboth parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC.\nENERNOC, INC.\nBy: /s/ Philip Adams\nBy: /s/ Matthew J. Cushing\nName: Philip Adams\nName: Matthew J. Cushing\nTitle: CEO\nTitle: GC & VP\nAMENDMENT NO. 3 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 3 to Non-Disclosure Agreement (the “Amendment”), dated October 3, 2014 (the “Effective Date”), between World\nEnergy Solutions, Inc., a Delaware corporation (“World Energy”) with offices at 100 Front Street, Worcester, MA, 01608 and EnerNOC, Inc., a\nDelaware corporation located at One Marina Park Drive, Boston, Massachusetts 02210 (“ENOC”), is entered into in order to amend the Non-\nDisclosure Agreement dated April 15, 2014 between World Energy and ENOC, as amended by Amendment No.1 to Non-Disclosure Agreement,\ndated June 12, 2014, and Amendment No.2 to Non-Disclosure Agreement, dated August 20, 2014 (the “Original Agreement”). Capitalized terms\nused but not defined herein shall have the respective meanings ascribed thereto in the Original Agreement.\nTo further facilitate a possible transaction or business relationship between World Energy and ENOC and to allow for more effective\ndiligence review, each of the parties, intending to be legally bound, hereby amend the Original Agreement as follows:\n1. Non-Solicitation of Employees. Section 8 shall be amended and restated as follows:\nEach party agrees that for the period of two (2) years from the date of the Original Agreement, it will not, either directly or through others,\nhire, solicit, induce or cause, or attempt to hire, solicit, induce or cause, any person who at any time during the term of this Agreement is an\nemployee of, or a consultant or independent contractor regularly providing services to, the other party or its affiliates (each, a “Covered Person”)\nto become an employee of, consultant or independent contractor to or for itself or any of its affiliates; provided, however, that nothing contained\nherein shall be deemed to prohibit any party, either directly or through others, from (i) conducting any general advertising not specifically\ntargeted at any Covered Person, (ii) after the period ending six (6) months following the termination of the Exclusivity Period, as extended herein\nand from time to time hereafter, the hiring or engagement by a party of any Covered Person of the other party who responds to such general\nadvertising (as referenced in clause (i) above) or who approaches such party or any of its affiliates without any solicitation or inducement to\nleave the employ of the other party or any of its affiliates , or (iii) soliciting for employment or hiring any Covered Person of the other party or\nany of its affiliates who was terminated by the other party or any of its affiliates, after the period ending nine (9) months following the\ntermination of such Covered Person by the other party; subject, in each case described in clauses (ii) and (iii), to such Covered Person’s\nrestrictive covenants.\n2. Exclusivity. Notwithstanding anything in the Original Agreement to the contrary, by signing below both parties agree to extend the\nExclusivity Period until 5:30 p.m . in Boston, MA, on October 15, 2014.\n2. No Other Amendments. Except as expressly amended hereby, the Original Agreement shall remain in full force and effect in all respects.\n3. Miscellaneous.\n(a) This Amendment will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Amendment shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Amendment are necessary for the protection of the business and goodwill of the parties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Amendment will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n(e) For the convenience of the parties, this Amendment may be executed by portable document format (pdf) copy or other facsimile\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on\nboth parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC.\nENERNOC, INC.\nBy: /s/ Philip V. Adams\nBy: /s/ Matthew J. Cushing\nName: Philip V. Adams\nName: Matthew J. Cushing\nTitle: CEO\nTitle: General Counsel & Vice President\n[ON COMPANY LETTERHEAD]\nCONFIDENTIAL (Via E-mail Attachment)\nOctober 15, 2014\nWorld Energy Solutions, Inc.\n100 Front Street, 20th Floor\nWorcester, MA 01680\nAttention: Philip V. Adams, President & Chief Executive Officer\nRE: Project Wolf\nDear Phil:\nReference is made to that certain Non-Disclosure Agreement, dated April 15, 2014, as amended, between World Energy Solutions, Inc. and\nEnerNOC, Inc. (the “NDA”). Notwithstanding anything in the NDA to the contrary, by signing below both parties agree to extend the Exclusivity\nPeriod (as defined in the NDA) until 5:30 p.m . in Boston, MA, on October 31, 2014.\nNo other changes are being made to the NDA. Please sign below to signify your acceptance of this extension.\nVery truly yours,\nBy: /s/ Neil Moses\nName: Neil Moses\nTitle: Chief Operating Officer and Chief Financial\nOfficer\nAccepted and agreed as of the date first written above:\nWorld Energy Solutions, Inc.\nBy: /s/ Philip V. Adams\nName: Philip V. Adams\nTitle: CEO\n[ON COMPANY LETTERHEAD]\nCONFIDENTIAL (Via E-mail Attachment)\nNovember 3, 2014\nWorld Energy Solutions, Inc.\n100 Front Street, 20th Floor\nWorcester, MA 01680\nAttention: Philip V. Adams, President & Chief Executive Officer\nRE: Project Wolf\nDear Phil:\nReference is made to that certain Non-Disclosure Agreement, dated April 15, 2014, as amended, between World Energy Solutions, Inc. and\nEnerNOC, Inc. (the “NDA”). Notwithstanding anything in the NDA to the contrary, by signing below both parties agree to extend the Exclusivity\nPeriod (as defined in the NDA) until 5:30 p.m . in Boston, MA, on November 3, 2014.\nNo other changes are being made to the NDA. Please sign below to signify your acceptance of this extension.\nVery truly yours,\nBy: /s/ Neil Moses\nName: Neil Moses\nTitle: Chief Operating Officer and Chief Financial\nOfficer\nAccepted and agreed as of the date first written above:\nWorld Energy Solutions, Inc.\nBy: /s/ Philip V. Adams\nName: Philip V. Adams\nTitle: President & Chief Executive Officer	EX-99.D.3 8 d818960dex99d3.htm EX-99.D.3\nExhibit (d)(3)\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) dated April 15, 2014 (the “Effective Date”), between World Energy Solutions, Inc., a\nDelaware corporation (“World Energy”) with offices at 100 Front Street, Worcester, Massachusetts 01608 and EnerNOC, Inc., a Delaware\ncorporation located at One Marina Park Drive, Boston, Massachusetts 02210 (“ENOC”).\n1. Background. World Energy and ENOC (the “parties”) intend to engage in discussions and negotiations concerning a possible transaction\nor business relationship between them. In the course of such discussions and negotiations and in the course of any such transaction or business\nrelationship, it is anticipated that each party will disclose or deliver to the other party and to the other party’s directors, officers, employees,\nagents or advisors (including, without limitation, attorneys, accountants, consultants, bankers, financial advisors and members of advisory\nboards) (collectively, “Representatives™) certain of its trade secrets or confidential or proprietary information for the purposes of enabling the\nother party to evaluate the feasibility of such transaction or business relationship and to perform its obligations and exercise its rights under any\nsuch transaction or business relationship that is agreed to between the parties (the “Purposes”). The parties have entered into this Agreement in\norder to assure the confidentiality of such trade secrets and confidential or proprietary information in accordance with the terms of this\nAgreement. As used in this Agreement, the party disclosing Proprietary Information (as defined below) is referred to as the “Disclosing Party”;\nthe party receiving such Proprietary Information is referred to as the “Recipient”.\n2. Proprietary Information. As used in this Agreement, the term “Proprietary Information” shall mean all trade secrets or confidential or\nproprietary information designated as such in writing by the Disclosing Party, whether by letter or by the use of an appropriate proprietary stamp\nor legend, prior to or at the time any such trade secret or confidential or proprietary information is disclosed by the Disclosing Party to the\nRecipient. Notwithstanding the foregoing, information which is orally or visually disclosed to the Recipient by the Disclosing Party, or is\ndisclosed in writing without an appropriate letter, proprietary stamp or legend, shall constitute Proprietary Information if it would be apparent to\nareasonable person, familiar with the Disclosing Party’s business and the industry in which it operates, that such information is of a confidential\nor proprietary nature the maintenance of which is important to the Disclosing Party. In addition, the term “Proprietary Information” shall be\ndeemed to include: (a) any notes, analyses, compilations, studies, interpretations, memoranda or other documents prepared by the Recipient or its\nRepresentatives which contain, reflect or are based upon, in whole or in part, any Proprietary Information furnished to the Recipient or its\nRepresentatives pursuant hereto; and (b) the existence or status of, and any information concerning, the discussions between the parties\nconcerning the possible transaction or business relationship.\n3. Use and Disclosure of Proprietary Information. The Recipient and its Representatives shall use the Proprietary Information of the\nDisclosing Party only for the Purposes and such Proprietary Information shall not be used for any other purpose without the prior written consent\nof the Disclosing Party. The Recipient and its Representatives shall hold in confidence, and shall not disclose any Proprietary Information of the\nDisclosing Party; provided. however, that (i) the Recipient may make any disclosure of such information to which the Disclosing Party gives its\nprior written consent; and (ii) any of the Proprietary Information may\nbe disclosed by the Recipient to its Representatives who need to know such information in connection with the Purposes and who are informed\nof the confidential nature of such information and of the terms of this Agreement. In any event, the Recipient shall be responsible for any breach\nof this Agreement by any of its Representatives, and agrees, at its sole expense, to take reasonable measures to restrain its Representatives from\nprohibited or unauthorized disclosure or use of the Proprietary Information, Notwithstanding anything contained in this Agreement to the\ncontrary, this Agreement shall not prohibit the Recipient from disclosing Proprietary Information of the Disclosing Party to the extent required in\norder for the Recipient to comply with applicable laws and regulations, provided that the Recipient provides prior written notice of such required\ndisclosure to the Disclosing Party and takes reasonable and lawful actions to avoid and/or minimize the extent of such disclosure.\n4. Limitation on Obligations. The obligations of the Recipient specified in Section 3 above shall not apply, and the Recipient shall have no\nfurther obligations, with respect to any Proprietary Information to the extent that such Proprietary Information:\n(a) is generally known to the public at the time of disclosure or becomes generally known without Recipient or its Representatives\nviolating this Agreement;\n(b) is in the Recipient’s possession at the time of disclosure;\n(c) becomes known to the Recipient through disclosure by sources other than the Disclosing Party without such sources violating any\nconfidentiality obligations to the Disclosing Party; or\n(d) is independently developed by the Recipient without reference to or reliance upon the Disclosing Party’s Proprietary Information.\n5. Ownership of Proprietary Information. The Recipient agrees that it shall not receive any right, title or interest in, or any license or right\nto use, the Disclosing Party’s Proprietary Information or any patent, copyright, trade secret, trademark or other intellectual property rights\ntherein, by implication or otherwise. Each of the parties hereto represents, warrants and covenants that the trade secrets which it discloses to the\nother party pursuant to this Agreement have not been stolen, appropriated, obtained or converted without authorization.\n6. Return of Proprietary Information. The Recipient shall, upon the written request of the Disclosing Party, return to the Disclosing Party all\nProprietary Information received by the Recipient or its Representatives from the Disclosing Party (and all copies and reproductions thereof). In\naddition, the Recipient shall destroy: (i) any notes, reports or other documents prepared by the Recipient which contain Proprietary Information\nof the Disclosing Party; and (ii) any Proprietary Information of the Disclosing Party (and all copies and reproductions thereof) which is in\nelectronic form or cannot otherwise be returned to the Disclosing Party. Alternatively, upon written request of the Disclosing Party, the Recipient\nshall destroy all Proprietary Information received by the Recipient or its Representatives from the Disclosing Party (and all copies and\nreproduction thereof) and any notes, reports or other documents prepared by the Recipient which contain Proprietary Information of the\nDisclosing Party. Notwithstanding the return or destruction of the Proprietary Information, the Recipient and its Representatives will continue to\nbe bound by their obligations of confidentiality and other obligations hereunder.\n_D.\n7. Securities. Recipient represents that it is aware, and will advise its representatives who are informed of the matters that are the subject of\nthis Agreement, of the restrictions imposed by the applicable federal and state securities laws on the purchase or sale of securities by any person\nwho has received material, non-public information regarding a company with publicly traded securities, as well as the restrictions making it\nunlawful to communicate such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or\nsell securities in reliance upon such information.\n8. Non-Solicitation of Employees Covenant. Each party agrees that during the term of this Agreement and for the period of two (2) years\nafter the termination of this Agreement, it will not, either directly or through others solicit or attempt to solicit any employee of the other party\nwith whom such party came into contact with during the evaluation of a possible transaction between the parties to become an employee,\nconsultant or independent contractor to or for itself or any of its affiliates; provided,-however, that nothing contained herein shall be deemed to\nprohibit any party, either directly or through others, from (i) conducting any general solicitation not specifically targeted at any such employee,\nand, for the avoidance of doubt, the hiring or engagement by a party of any employee of the other party who responds to such general advertising\nor who approaches such party or any of its affiliates without any solicitation or inducement to leave the employ of the other party or any of its\naffiliates shall not be deemed a breach of this Section 8, or (ii) soliciting for employment or hiring any employee of the other party or any of its\naffiliates who was terminated by the other party or any of its affiliates; each subject to such employee’s restrictive covenants\n9. Miscellaneous.\n(a) This Agreement supersedes all prior agreements, written or oral, between the parties relating to the subject matter of this\nAgreement. This Agreement may not be modified, changed or discharged, in whole or in part, except by an agreement in writing signed by the\nparties.\n(b) This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Agreement shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Agreement are necessary for the protection of the business and goodwill of the parties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Agreement will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n-3-\n(e) The confidentiality obligations imposed by this Agreement shall continue with respect to a particular item of Proprietary\nInformation until the fifth anniversary of the disclosure of such Proprietary Information to Recipient pursuant to this Agreement; provided,\nhowever, that the confidentiality obligations imposed by this Agreement with respect to source code included in the Proprietary Information shall\ncontinue in perpetuity.\n(f) For the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be\ndeemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC. ENERNOC, INC.\nBy:  /s/ Philip V. Adams By: /s/ Matthew J. Cushing\nName: Philip V. Adams Name: Matthew J. Cushing\nTitle: CEO Title: General Counsel & VP.\nDate: 4/15/14 Date: April 15,2014\nAMENDMENT NO. 1 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 1 to Non-Disclosure Agreement (the “Amendment™), dated June 11, 2014, between World Energy Solutions, Inc., a\nDelaware corporation (“World Energy”) with offices at 100 Front Street, Worcester, MA, 01608 and EnerNOC, Inc., a Delaware corporation\nlocated at One Marina Park Drive, Boston, Massachusetts 02210 (“ENOC”), is entered into in order to amend the Non-Disclosure Agreement\ndated April 15, 2014 between World Energy and ENOC (the “Original Agreement”). Capitalized terms used but not defined herein shall have the\nrespective meanings ascribed thereto in the Original Agreement.\nTo further facilitate a possible transaction or business relationship between World Energy and ENOC and to allow for more effective\ndiligence review, each of the parties, intending to be legally bound, hereby amend the Original Agreement as follows:\n1. Exclusivity and Standstill. A new section 8 A shall be inserted as follows:\n8A. (1) Standstill Agreement. In consideration of the Proprietary Information being provided by World Energy to ENOC, ENOC\nagrees that until March 11, 2015 (“Standstill Period”), neither ENOC nor any of its affiliates or its or their respective officers, directors,\ninvestment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, the “Representatives”) acting on\nENOC’s behalf will, unless specifically invited in writing by World Energy’s Board of Directors or its duly authorized representative:\n \n(i) acquire, offer to acquire, or agree to acquire or beneficially own, directly or indirectly, by purchase or otherwise, any securities or\ndirect or indirect rights to acquire any securities, or any indebtedness of World Energy or any subsidiary thereof, or any successor entity;\n(ii) make, effect, initiate, cause or participate in any acquisition of any assets of World Energy or any subsidiary thereof, or any\nsuccessor entity;\n(iii) make, effect, initiate, cause or participate in, or make any public announcement with respect to, or submit a proposal for, any\ntender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction\ninvolving World Energy or any subsidiary of the other party, or involving any securities or assets of World Energy or any securities or assets of\nany subsidiary of World Energy;\n(iv) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange\nAct of 1934 (the “34 Act”)) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of\nWorld Energy;\n(v) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the 34 Act) in connection with any of the\nforegoing or act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of World Energy;\n(vi) enter into any discussions, negotiations, arrangements or agreements with any other person relating to any of the foregoing;\n(vii) request World Energy or any of World Energy’s Representatives to amend or waive any provisions of this paragraph in a manner\nthat would require public disclosure of such request; or\n(viii) take any action that could reasonably be expected to require World Energy to make a public announcement regarding the\npossibility of any of the events described in sub-clauses (i) through (vii);\nprovided, however, that none of the foregoing restrictions set forth in this Section 8A shall prohibit ENOC from seeking to acquire or acquiring\nany securities of another business entity that provides energy related goods or services and that already beneficially owns securities of World\nEnergy, but expressly excluding a trust, hedge fund or other similar investment vehicle or any current 5% holders of World Energy that have filed\na Schedule 13D or Schedule 13G with the Securities and Exchange Commission. Notwithstanding the foregoing provisions of this paragraph 8A,\nthe foregoing restrictions set forth in this Section 8A shall automatically be inoperative, terminate and be of no further force and effect if\n(A) World Energy enters into a definitive agreement with respect to a merger, consolidation, business combination, tender or exchange offer,\nrecapitalization, restructuring, sale, equity issuance or other transaction involving the sale, transfer, issuance or exchange of all or a controlling\nportion of World Energy’s equity securities (or securities convertible into such controlling interest) or any material assets of World Energy or its\naffiliates or subsidiaries representing more than fifty percent (50%) of the consolidated earning power of World Energy and its affiliates or\nsubsidiaries (any of such transactions referred to herein as an “Acquisition Transaction”), (B) World Energy shall have become insolvent, made\nan assignment for the benefit of creditors or voluntarily or involuntarily filed a petition for bankruptcy, or (C) World Energy, its board of\ndirectors or any of its Representatives (i) solicits offers in respect of an Acquisition Transaction (whether through a confidential investment\nbanker-led “process” or otherwise) or (ii) publicly announces an intent to pursue an Acquisition Transaction and fails to (i) with respect to clause\n(C)(i) above, solicit an offer from ENOC; or (ii) with respect to clause C(ii), invite ENOC to participate in any process for the evaluation,\nnegotiation and pursuit of the Acquisition Transaction described in such public announcement. World Energy acknowledges that in connection\nwith the evaluation of a possible business relationship or transaction, ENOC may receive material non-public information regarding World\nEnergy and that federal and state securities laws restrict the trading of securities by a person who has received material non-public information.\nFollowing termination of the foregoing restrictions in this Section 8 A, ENOC and its Representatives shall be permitted (notwithstanding any\nother provision of this Agreement) to consider Proprietary Information in formulating, negotiating, and pursuing an Acquisition Transaction by\nENOC.\nNotwithstanding anything to the contrary in this Section 8A, during the Standstill Period, ENOC shall be permitted at any time and\nfrom time to time to submit to the President and/or Chief Executive Officer of World Energy one or more offers, proposals or indications of\ninterest related to a transaction between the parties, provided that each such submission is made on a confidential basis and states that ENOC\ndoes not intend to make a public announcement related to such submission or its text or contents and that ENOC believes, after discussion with\nits counsel, that the receipt thereof by World Energy does not require public disclosure of such submission.\n(2) Exclusivity. In consideration of ENOC agreeing to the Standstill Agreement above, World Energy agrees that during the period\ncommencing on the signature of this Amendment No. 1 and ending at 5:30 p.m. in Boston, MA, on June 27, 2014 (the “Exclusivity Period”),\nWorld Energy shall not, and shall cause its directors, President/Chief Executive Officer, Chief Financial Officer, investment bankers, attorneys\nand other financial advisors (collectively, the “World Energy Representatives”) not to, directly or indirectly:\n(i) initiate, solicit, encourage (including by way of providing information), facilitate or induce the submission of any inquiries, proposals\nor offers that constitute or may reasonably be expected to lead to, any Acquisition Transaction;\n(ii) engage or participate in any discussions, negotiations or communications regarding, or provide or cause to be provided any non-\npublic information or data relating to World Energy or any of its subsidiaries in connection with, or have any discussions with any\nperson relating to, any actual or proposed Acquisition Transaction, or otherwise encourage or facilitate any effort or attempt to make\nor implement any Acquisition Transaction;\n(iii) approve, endorse or recommend, or publicly propose or announce an intention to approve, endorse or recommend, any Acquisition\nTransaction;\n(iv) enter into any letter of intent, agreement in principle, merger agreement, financing agreement, acquisition agreement, option\nagreement or other similar agreement relating to any Acquisition Transaction; or\n(v) approve any transaction or any third party becoming an “interested stockholder” under Section 203 of the Delaware General\nCorporation Law or otherwise exempt any person from any applicable takeover statute.\nWorld Energy agrees that it shall take all necessary steps to promptly inform the World Energy Representatives involved in the transactions\ncontemplated hereby of the obligations undertaken in this Amendment.\nExcept as expressly set forth in Section 8A(1) hereof, the expiration of the Exclusivity Period hereunder will not terminate or otherwise\naffect any of the other provisions of this Agreement.\n2. No Other Amendments. Except as expressly amended hereby, the Original Agreement shall remain in full force and effect in all respects.\n3. Miscellaneous.\n(a) This Amendment will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Amendment shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Amendment are necessary for the protection of the business and goodwill of the patties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Amendment will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n(e) For the convenience of the parties, this Amendment may be executed by portable document format (pdf) copy or other facsimile\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on\nboth parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC. ENERNOC, INC.\nBy:  /s/ Philip V. Adams By:  /s/ Neil Moses\nName: Philip V. Adams Name: Neil Moses\nTitle: CEO Title: COO\nAMENDMENT NO. 2 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 2 to Non-Disclosure Agreement (the “Amendment”), dated August 20, 2014 (the “Effective Date), between World\nEnergy Solutions, Inc., a Delaware corporation (“World Energy”) with offices at 100 Front Street, Worcester, MA, 01608 and EnerNOC, Inc., a\nDelaware corporation located at One Marina Park Drive, Boston, Massachusetts 02210 (“ENOC”), is entered into in order to amend the Non-\nDisclosure Agreement dated April 15, 2014 between World Energy and ENOC (the “Original Agreement”). Capitalized terms used but not\ndefined herein shall have the respective meanings ascribed thereto in the Original Agreement.\nTo further facilitate a possible transaction or business relationship between World Energy and ENOC and to allow for more effective\ndiligence review, each of the parties, intending to be legally bound, hereby amend the Original Agreement, as amended, as follows:\n1. Exclusivity and Standstill. Section 8A shall be amended and restated as follows:\n8A. (1) Standstill Agreement. In consideration of the Proprietary Information being provided by World Energy to ENOC, ENOC\nagrees that until June 12, 2015 (“Standstill Period”), neither ENOC nor any of its affiliates or its or their respective officers, directors, investment\nbankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, the “Representatives”) acting on ENOC’s\nbehalf will, unless specifically invited in writing by World Energy’s Board of Directors or its duly authorized representative:\n \n(i) acquire, offer to acquire, or agree to acquire or beneficially own, directly or indirectly, by purchase or otherwise, any securities or\ndirect or indirect rights to acquire any securities, or any indebtedness of World Energy or any subsidiary thereof, or any successor entity;\n(ii) make, effect, initiate, cause or participate in any acquisition of any assets of World Energy or any subsidiary thereof, or any\nsuccessor entity;\n(iii) make, effect, initiate, cause or participate in. or make any public announcement with respect to, or submit a proposal for, any\ntender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction\ninvolving World Energy or any subsidiary of the other party, or involving any securities or assets of World Energy or any securities or assets of\nany subsidiary of World Energy;\n(iv) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange\nAct of 1934 (the “34 Act”)) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of\nWorld Energy;\n(v) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the 34 Act) in connection with any of the\nforegoing or act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of World Energy;\n(vi) enter into any discussions, negotiations, arrangements or agreements with any other person relating to any of the foregoing;\n(vii) request World Energy or any of World Energy’s Representatives to amend or waive any provisions of this paragraph in a manner\nthat would require public disclosure of such request; or\n(viii) take any action that could reasonably be expected to require World Energy to make a public announcement regarding the\npossibility of any of the events described in sub-clauses (i) through (vii);\nprovided, however, that none of the foregoing restrictions set forth in this Section 8A shall prohibit ENOC from seeking to acquire or acquiring\nany securities of another business entity that provides energy related goods or services and that already beneficially owns securities of World\nEnergy, but expressly excluding a trust, hedge fund or other similar investment vehicle or any current 5% holders of World Energy that have filed\na Schedule 13D or Schedule 13G with the Securities and Exchange Commission. Notwithstanding the foregoing provisions of this paragraph 8A,\nthe foregoing restrictions set forth in this Section 8A shall automatically be inoperative, terminate and be of no further force and effect if\n(A) World Energy enters into a definitive agreement with respect to a merger, consolidation, business combination, tender or exchange offer,\nrecapitalization, restructuring, sale, equity issuance or other transaction involving the sale, transfer, issuance or exchange of all or a controlling\nportion of World Energy’s equity securities (or securities convertible into such controlling interest) or any material assets of World Energy or its\naffiliates or subsidiaries representing more than fifty percent (50%) of the consolidated earning power of World Energy and its affiliates or\nsubsidiaries (any of such transactions referred to herein as an “Acquisition Transaction”), (B) World Energy shall have become insolvent, made\nan assignment for the benefit of creditors or voluntarily or involuntarily filed a petition for bankruptcy, or (C) World Energy, its board of\ndirectors or any of its Representatives (i) solicits offers in respect of an Acquisition Transaction (whether through a confidential investment\nbanker-led “process” or otherwise) or (ii) publicly announces an intent to pursue an Acquisition Transaction and fails to (i) with respect to clause\n(C)(i) above, solicit an offer from ENOC; or (ii) with respect to clause (C)(ii), invite ENOC to participate in any process for the evaluation,\nnegotiation and pursuit of the Acquisition Transaction described in such public announcement. World Energy acknowledges that in connection\nwith the evaluation of a possible business relationship or transaction, ENOC may receive material non-public information regarding World\nEnergy and that federal and state securities laws restrict the trading of securities by a person who has received material non-public information.\nFollowing termination of the foregoing restrictions in this Section 8 A, ENOC and its Representatives shall be permitted (notwithstanding any\nother provision of this Agreement) to consider Proprietary Information in formulating, negotiating, and pursuing an Acquisition Transaction by\nENOC.\nNotwithstanding anything to the contrary in this Section 8A, during the Standstill Period, ENOC shall be permitted at any time and\nfrom time to time to submit to the President and/or Chief Executive Officer of World Energy one or more offers, proposals or indications of\ninterest related to a transaction between the parties, provided that each such submission is made on a confidential basis and states that ENOC\ndoes not intend to make a public announcement related to such submission or its text or contents and that ENOC believes, after discussion with\nits counsel, that the receipt thereof by World Energy does not require public disclosure of such submission.\n(2) Exclusivity. In consideration of ENOC agreeing to the Standstill Agreement above, World Energy agrees that during the period\ncommencing on the Effective Date and ending at 5:30 p.m. in Boston, MA, on the forty-fifth day following the Effective Date (the “Exclusivity\nPeriod”), World Energy shall not, and shall cause its directors, President/Chief Executive Officer, Chief Financial Officer, other employees,\ninvestment bankers, attorneys, financial advisors and other advisors or agents (collectively, the “World Energy Representatives”) not to, directly\nor indirectly:\n(i) initiate, solicit, encourage (including by way of providing information), facilitate or induce the submission of any inquiries, proposals\nor offers that constitute or may reasonably be expected to lead to, any Acquisition Transaction;\n(ii) engage or participate in any discussions, negotiations or communications regarding, or provide or cause to be provided any non-\npublic information or data relating to World Energy or any of its subsidiaries in connection with, or have any discussions with any\nperson relating to, any actual or proposed Acquisition Transaction , or otherwise encourage or facilitate any effort or attempt to make\nor implement any Acquisition Transaction;\n(iii) approve, endorse or recommend, or publicly propose or announce an intention to approve, endorse or recommend, any Acquisition\nTransaction;\n(iv) enter into any letter of intent, agreement in principle, merger agreement, financing agreement, acquisition agreement, option\nagreement or other similar agreement relating to any Acquisition Transaction; or\n(v) approve any transaction or any third party becoming an “interested stockholder” under Section 203 of the Delaware General\nCorporation Law or otherwise exempt any person from any applicable takeover statute.\nWorld Energy agrees that it shall take all necessary steps to promptly inform the World Energy Representatives involved in the transactions\ncontemplated hereby of the obligations undertaken in this Amendment.\nExcept as expressly set forth in Section 8A(1) hereof, the expiration of the Exclusivity Period hereunder will not terminate or otherwise\naffect any of the other provisions of this Agreement.\n2. No Other Amendments. Except as expressly amended hereby, the Original Agreement shall remain in full force and effect in all respects.\n3. Miscellaneous.\n(a) This Amendment will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Amendment shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Amendment are necessary for the protection of the business and goodwill of the parties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Amendment will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n(e) For the convenience of the parties, this Amendment may be executed by portable document format (pdf) copy or other facsimile\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on\nboth parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC. ENERNOC, INC.\nBy:  /s/ Philip Adams By: /s/ Matthew J. Cushing\nName: Philip Adams Name: Matthew J. Cushing\nTitle: CEO Title: GC & VP\nAMENDMENT NO. 3 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 3 to Non-Disclosure Agreement (the “Amendment”), dated October 3, 2014 (the “Effective Date”), between World\nEnergy Solutions, Inc., a Delaware corporation (“World Energy”) with offices at 100 Front Street, Worcester, MA, 01608 and EnerNOC, Inc., a\nDelaware corporation located at One Marina Park Drive, Boston, Massachusetts 02210 (“ENOC”), is entered into in order to amend the Non-\nDisclosure Agreement dated April 15, 2014 between World Energy and ENOC, as amended by Amendment No.1 to Non-Disclosure Agreement,\ndated June 12, 2014, and Amendment No.2 to Non-Disclosure Agreement, dated August 20, 2014 (the “Original Agreement”). Capitalized terms\nused but not defined herein shall have the respective meanings ascribed thereto in the Original Agreement.\nTo further facilitate a possible transaction or business relationship between World Energy and ENOC and to allow for more effective\ndiligence review, each of the parties, intending to be legally bound, hereby amend the Original Agreement as follows:\n1. Non-Solicitation of Employees. Section 8 shall be amended and restated as follows:\nEach party agrees that for the period of two (2) years from the date of the Original Agreement, it will not, either directly or through others,\nhire, solicit, induce or cause, or attempt to hire, solicit, induce or cause, any person who at any time during the term of this Agreement is an\nemployee of, or a consultant or independent contractor regularly providing services to, the other party or its affiliates (each, a “Covered Person”)\nto become an employee of, consultant or independent contractor to or for itself or any of its affiliates; provided, however, that nothing contained\nherein shall be deemed to prohibit any party, either directly or through others, from (i) conducting any general advertising not specifically\ntargeted at any Covered Person, (ii) after the period ending six (6) months following the termination of the Exclusivity Period, as extended herein\nand from time to time hereafter, the hiring or engagement by a party of any Covered Person of the other party who responds to such general\nadvertising (as referenced in clause (i) above) or who approaches such party or any of its affiliates without any solicitation or inducement to\nleave the employ of the other party or any of its affiliates , or (iii) soliciting for employment or hiring any Covered Person of the other party or\nany of its affiliates who was terminated by the other party or any of its affiliates, after the period ending nine (9) months following the\ntermination of such Covered Person by the other party; subject, in each case described in clauses (ii) and (iii), to such Covered Person’s\nrestrictive covenants.\n2. Exclusivity. Notwithstanding anything in the Original Agreement to the contrary, by signing below both parties agree to extend the\nExclusivity Period until 5:30 p.m. in Boston, MA, on October 15, 2014.\n2. No Other Amendments. Except as expressly amended hereby, the Original Agreement shall remain in full force and effect in all respects.\n3. Miscellaneous.\n(a) This Amendment will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Amendment shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Amendment are necessary for the protection of the business and goodwill of the parties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Amendment will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n(e) For the convenience of the parties, this Amendment may be executed by portable document format (pdf) copy or other facsimile\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on\nboth parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC. ENERNOC, INC.\nBy:  /s/ Philip V. Adams By: /s/ Matthew J. Cushing\nName: Philip V. Adams Name: Matthew J. Cushing\nTitle: CEO Title: General Counsel & Vice President\n[ON COMPANY LETTERHEAD]\nCONFIDENTIAL (Via E-mail Attachment)\nOctober 15, 2014\nWorld Energy Solutions, Inc.\n100 Front Street, 20th Floor\nWorcester, MA 01680\nAttention: Philip V. Adams, President & Chief Executive Officer\nRE: Project Wolf\nDear Phil:\nReference is made to that certain Non-Disclosure Agreement, dated April 15, 2014, as amended, between World Energy Solutions, Inc. and\nEnerNOC, Inc. (the “NDA”). Notwithstanding anything in the NDA to the contrary, by signing below both parties agree to extend the Exclusivity\nPeriod (as defined in the NDA) until 5:30 p.m. in Boston, MA, on October 31, 2014.\nNo other changes are being made to the NDA. Please sign below to signify your acceptance of this extension.\nVery truly yours,\nBy: /s/ Neil Moses\nName: Neil Moses\nTitle:  Chief Operating Officer and Chief Financial\nOfficer\nAccepted and agreed as of the date first written above:\nWorld Energy Solutions, Inc.\nBy: /s/ Philip V. Adams\nName: Philip V. Adams\nTitle: CEO\n[ON COMPANY LETTERHEAD]\nCONFIDENTIAL (Via E-mail Attachment)\nNovember 3, 2014\nWorld Energy Solutions, Inc.\n100 Front Street, 20th Floor\nWorcester, MA 01680\nAttention: Philip V. Adams, President & Chief Executive Officer\nRE: Project Wolf\nDear Phil:\nReference is made to that certain Non-Disclosure Agreement, dated April 15, 2014, as amended, between World Energy Solutions, Inc. and\nEnerNOC, Inc. (the “NDA”). Notwithstanding anything in the NDA to the contrary, by signing below both parties agree to extend the Exclusivity\nPeriod (as defined in the NDA) until 5:30 p.m. in Boston, MA, on November 3, 2014.\nNo other changes are being made to the NDA. Please sign below to signify your acceptance of this extension.\nVery truly yours,\nBy: /s/ Neil Moses\nName: Neil Moses\nTitle:  Chief Operating Officer and Chief Financial\nOfficer\nAccepted and agreed as of the date first written above:\nWorld Energy Solutions, Inc.\nBy: /s/ Philip V. Adams\nName: Philip V. Adams\nTitle: President & Chief Executive Officer	EX-99.D.3 8 d818960dex99d3.htm EX-99.D.3\nExhibit (d)(3)\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement ("Agreement") dated April 15, 2014 (the "Effective Date"), between World Energy Solutions, Inc., a\nDelaware corporation ("World Energy") with offices at 100 Front Street, Worcester, Massachusetts 01608 and EnerNOC, Inc., a Delaware\ncorporation located at One Marina Park Drive, Boston, Massachusetts 02210 ("ENOC").\n1. Background. World Energy and ENOC (the "parties") intend to engage in discussions and negotiations concerning a possible transaction\nor\nbusiness relationship between them. In the course of such discussions and negotiations and in the course of any such transaction or business\nrelationship, it is anticipated that each party will disclose or deliver to the other party and to the other party's directors, officers, employees,\nagents or advisors (including, without limitation, attorneys, accountants, consultants, bankers, financial advisors and members of advisory\nboards) (collectively, "Representatives") certain of its trade secrets or confidential or proprietary information for the purposes of enabling the\nother party to evaluate the feasibility of such transaction or business relationship and to perform its obligations and exercise its rights under any\nsuch transaction or business relationship that is agreed to between the parties (the "Purposes"). The parties have entered into this Agreement in\norder to assure the confidentiality of such trade secrets and confidential or proprietary information in accordance with the terms of this\nAgreement. As used in this Agreement, the party disclosing Proprietary Information (as defined below) is referred to as the "Disclosing Party";\nthe party receiving such Proprietary Information is referred to as the "Recipient".\n2. Proprietary Information. As used in this Agreement, the term "Proprietary Information" shall mean all trade secrets or confidential\nor\nproprietary information designated as such in writing by the Disclosing Party, whether by letter or by the use of an appropriate proprietary stamp\nor legend, prior to or at the time any such trade secret or confidential or proprietary information is disclosed by the Disclosing Party to the\nRecipient. Notwithstanding the foregoing, information which is orally or visually disclosed to the Recipient by the Disclosing Party, or is\ndisclosed in writing without an appropriate letter, proprietary stamp or legend, shall constitute Proprietary Information if it would be apparent\nto\na reasonable person, familiar with the Disclosing Party's business and the industry in which it operates, that such information is of a confidential\nor proprietary nature the maintenance of which is important to the Disclosing Party. In addition, the term "Proprietary Information" shall be\ndeemed to include: (a) any notes, analyses, compilations, studies, interpretations, memoranda or other documents prepared by the Recipient or its\nRepresentatives which contain, reflect or are based upon, in whole or in part, any Proprietary Information furnished to the Recipient or its\nRepresentatives pursuant hereto; and (b) the existence or status of, and any information concerning, the discussions between the parties\nconcerning the possible transaction or business relationship.\n3. Use and Disclosure of Proprietary. Information. The Recipient and its Representatives shall use the Proprietary Information of the\nDisclosing Party only for the Purposes and such Proprietary Information shall not be used for any other purpose without the prior written consent\nof the Disclosing Party. The Recipient and its Representatives shall hold in confidence, and shall not disclose any Proprietary Information of the\nDisclosing Party; provided. however, that (i) the Recipient may make any disclosure of such information to which the Disclosing Party gives its\nprior written consent; and (ii) any of the Proprietary Information may\nbe disclosed by the Recipient to its Representatives who need to know such information in connection with the Purposes and who are informed\nof the confidential nature of such information and of the terms of this Agreement. In any event, the Recipient shall be responsible for any breach\nof this Agreement by any of its Representatives, and agrees, at its sole expense, to take reasonable measures to restrain its Representatives from\nprohibited or unauthorized disclosure or use of the Proprietary Information, Notwithstanding anything contained in this Agreement to the\ncontrary, this Agreement shall not prohibit the Recipient from disclosing Proprietary Information of the Disclosing Party to the extent required\nin\norder for the Recipient to comply with applicable laws and regulations, provided that the Recipient provides prior written notice of such required\ndisclosure to the Disclosing Party and takes reasonable and lawful actions to avoid and/or minimize the extent of such disclosure.\n4. Limitation on Obligations. The obligations of the Recipient specified in Section 3 above shall not apply, and the Recipient shall have no\nfurther obligations, with respect to any Proprietary Information to the extent that such Proprietary Information:\n(a) is generally known to the public at the time of disclosure or becomes generally known without Recipient or its Representatives\nviolating this Agreement;\n(b) is in the Recipient's possession at the time of disclosure;\n(c) becomes known to the Recipient through disclosure by sources other than the Disclosing Party without such sources violating any\nconfidentiality obligations to the Disclosing Party; or\n(d) is independently developed by the Recipient without reference to or reliance upon the Disclosing Party's Proprietary Information.\n5. Ownership of Proprietary. Information The Recipient agrees that it shall not receive any right, title or interest in, or any license or right\nto use, the Disclosing Party's Proprietary Information or any patent, copyright, trade secret, trademark or other intellectual property rights\ntherein, by implication or otherwise. Each of the parties hereto represents, warrants and covenants that the trade secrets which it discloses to the\nother party pursuant to this Agreement have not been stolen, appropriated, obtained or converted without authorization.\n6.\nReturn of Proprietary. Information. The Recipient shall, upon the written request of the Disclosing Party, return to the Disclosing Party all\nProprietary Information received by the Recipient or its Representatives from the Disclosing Party (and all copies and reproductions thereof). In\naddition, the Recipient shall destroy: (i) any notes, reports or other documents prepared by the Recipient which contain Proprietary Information\nof the Disclosing Party; and (ii) any Proprietary Information of the Disclosing Party (and all copies and reproductions thereof) which is in\nelectronic form or cannot otherwise be returned to the Disclosing Party. Alternatively, upon written request of the Disclosing Party, the Recipient\nshall destroy all Proprietary Information received by the Recipient or its Representatives from the Disclosing Party (and all copies and\nreproduction thereof) and any notes, reports or other documents prepared by the Recipient which contain Proprietary Information of the\nDisclosing Party. Notwithstanding the return or destruction of the Proprietary Information, the Recipient and its Representatives will continue to\nbe bound by their obligations of confidentiality and other obligations hereunder.\n2\n7. Securities. Recipient represents that it is aware, and will advise its representatives who are informed of the matters that are the subject of\nthis Agreement, of the restrictions imposed by the applicable federal and state securities laws on the purchase or sale of securities by any person\nwho has received material, non-public information regarding a company with publicly traded securities, as well as the restrictions making it\nunlawful to communicate such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or\nsell securities in reliance upon such information.\n8. Non-Solicitation of Employees Covenant. Each party agrees that during the term of this Agreement and for the period of two (2) years\nafter the termination of this Agreement, it will not, either directly or through others solicit or attempt to solicit any employee of the other party\nwith whom such party came into contact with during the evaluation of a possible transaction between the parties to become an employee,\nconsultant or independent contractor to or for itself or any of its affiliates; rovided,-however, that nothing contained herein shall be deemed to\nprohibit any party, either directly or through others, from (i) conducting any general solicitation not specifically targeted at any such employee,\nand, for the avoidance of doubt, the hiring or engagement by a party of any employee of the other party who responds to such general advertising\nor who approaches such party or any of its affiliates without any solicitation or inducement to leave the employ of the other party or any of its\naffiliates shall not be deemed a breach of this Section 8, or (ii) soliciting for employment or hiring any employee of the other party or any of its\naffiliates who was terminated by the other party or any of its affiliates; each subject to such employee's restrictive covenants\n9. Miscellaneous.\n(a) This Agreement supersedes all prior agreements, written or oral, between the parties relating to the subject matter of this\nAgreement. This Agreement may not be modified, changed or discharged, in whole or in part, except by an agreement in writing signed by the\nparties.\n(b) This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Agreement shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Agreement are necessary for the protection of the business and goodwill of the parties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Agreement will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n3\n(e) The confidentiality obligations imposed by this Agreement shall continue with respect to a particular item of Proprietary\nInformation until the fifth anniversary of the disclosure of such Proprietary Information to Recipient pursuant to this Agreement; provided,\nhowever, that the confidentiality obligations imposed by this Agreement with respect to source code included in the Proprietary Information shall\ncontinue in perpetuity.\n(f) For the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be\ndeemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC.\nENERNOC, INC.\nBy:\n/s/ Philip V. Adams\nBy:\n/s/ Matthew J. Cushing\nName: Philip V. Adams\nName: Matthew J. Cushing\nTitle: CEO\nTitle: General Counsel & VP.\nDate: 4/15/14\nDate: April 15, 2014\n4 -\nAMENDMENT NO. 1 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 1 to Non-Disclosure Agreement (the "Amendment"), dated June 11, 2014, between World Energy Solutions, Inc., a\nDelaware corporation ("World Energy") with offices at 100 Front Street, Worcester, MA, 01608 and EnerNOC, Inc., a Delaware corporation\nlocated at One Marina Park Drive, Boston, Massachusetts 02210 ("ENOC"), is entered into in order to amend the Non-Disclosure Agreement\ndated April 15, 2014 between World Energy and ENOC (the "Original Agreement"). Capitalized terms used but not defined herein shall have the\nrespective meanings ascribed thereto in the Original Agreement.\nTo further facilitate a possible transaction or business relationship between World Energy and ENOC and to allow for more effective\ndiligence review, each of the parties, intending to be legally bound, hereby amend the Original Agreement as follows:\n1. Exclusivity and Standstill. A new section 8 A shall be inserted as follows:\n8A. (1) Standstill Agreement. In consideration of the Proprietary Information being provided by World Energy to ENOC, ENOC\nagrees that until March 11, 2015 ("Standstill Period"), neither ENOC nor any of its affiliates or its or their respective officers, directors,\ninvestment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, the "Representatives") acting on\nENOC's behalf will, unless specifically invited in writing by World Energy's Board of Directors or its duly authorized representative:\n(i) acquire, offer to acquire, or agree to acquire or beneficially own, directly or indirectly, by purchase or otherwise, any securities or\ndirect or indirect rights to acquire any securities, or any indebtedness of World Energy or any subsidiary thereof, or any successor entity;\n(ii) make, effect, initiate, cause or participate in any acquisition of any assets of World Energy or any subsidiary thereof, or any\nsuccessor entity;\n(iii) make, effect, initiate, cause or participate in, or make any public announcement with respect to, or submit a proposal for, any\ntender\noffer,\nexchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction\ninvolving World Energy or any subsidiary of the other party, or involving any securities or assets of World Energy or any securities or assets of\nany subsidiary of World Energy;\n(iv) make, directly or indirectly, any "solicitation" of "'proxies" (as such terms are used in Rule 14a-1 under the Securities Exchange\nAct of 1934 (the "34 Act")) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of\nWorld Energy;\n(v) form, join or in any way participate in a "group" (as defined in Section 13(d)(3) of the 34 Act) in connection with any of the\nforegoing or act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of World Energy;\n(vi) enter into any discussions, negotiations, arrangements or agreements with any other person relating to any of the foregoing;\n(vii) request World Energy or any of World Energy's Representatives to amend or waive any provisions of this paragraph in a manner\nthat would require public disclosure of such request; or\n(viii) take any action that could reasonably be expected to require World Energy to make a public announcement regarding the\npossibility of any of the events described in sub-clauses (i) through (vii);\nprovided, however, that none of the foregoing restrictions set forth in this Section 8A shall prohibit ENOC from seeking to acquire or acquiring\nany securities of another business entity that provides energy related goods or services and that already beneficially owns securities of World\nEnergy, but expressly excluding a trust, hedge fund or other similar investment vehicle or any current 5% holders of World Energy that have filed\na Schedule 13D or Schedule 13G with the Securities and Exchange Commission. Notwithstanding the foregoing provisions of this paragraph 8A,\nthe foregoing restrictions set forth in this Section 8A shall automatically be inoperative, terminate and be of no further force and effect if\n(A) World Energy enters into a definitive agreement with respect to a merger, consolidation, business combination, tender or exchange offer,\nrecapitalization, restructuring, sale, equity issuance or other transaction involving the sale, transfer, issuance or exchange of all or a controlling\nportion of World Energy's equity securities (or securities convertible into such controlling interest) or any material assets of World Energy or its\naffiliates or subsidiaries representing more than fifty percent (50%) of the consolidated earning power of World Energy and its affiliates or\nsubsidiaries (any of such transactions referred to herein as an "Acquisition Transaction"), (B) World Energy shall have become insolvent, made\nan assignment for the benefit of creditors or voluntarily or involuntarily filed a petition for bankruptcy, or (C) World Energy, its board of\ndirectors or any of its Representatives (i) solicits offers in respect of an Acquisition Transaction (whether through a confidential investment\nbanker-led "process" or otherwise) or (ii) publicly announces an intent to pursue an Acquisition Transaction and fails to (i) with respect to clause\n(C)(i) above, solicit an offer from ENOC; or (ii) with respect to clause C(ii), invite ENOC to participate in any process for the evaluation,\nnegotiation and pursuit of the Acquisition Transaction described in such public announcement. World Energy acknowledges that in connection\nwith the evaluation of a possible business relationship or transaction, ENOC may receive material non-public information regarding World\nEnergy and that federal and state securities laws restrict the trading of securities by a person who has received material non-public information.\nFollowing termination of the foregoing restrictions in this Section 8A, ENOC and its Representatives shall be permitted (notwithstanding any\nother provision of this Agreement) to consider Proprietary Information in formulating, negotiating, and pursuing an Acquisition Transaction\nby\nENOC.\nNotwithstanding anything to the contrary in this Section 8A, during the Standstill Period, ENOC shall be permitted at any time and\nfrom time to time to submit to the President and/or Chief Executive Officer of World Energy one or more offers, proposals or indications of\ninterest related to a transaction between the parties, provided that each such submission is made on a confidential basis and states that ENOC\ndoes not intend to make a public announcement related to such submission or its text or contents and that ENOC believes, after discussion with\nits counsel, that the receipt thereof by World Energy does not require public disclosure of such submission.\n(2) Exclusivity.. In consideration of ENOC agreeing to the Standstill Agreement above, World Energy agrees that during the period\ncommencing on the signature of this Amendment No. 1 and ending at 5:30 p.m. in Boston, MA, on June 27, 2014 (the "Exclusivity Period"),\nWorld Energy shall not, and shall cause its directors, President/Chief Executive Officer, Chief Financial Officer, investment bankers, attorneys\nand other financial advisors (collectively, the "World Energy Representatives") not to, directly or indirectly:\n(i) initiate, solicit, encourage (including by way of providing information), facilitate or induce the submission of any inquiries, proposals\nor offers that constitute or may reasonably be expected to lead to, any Acquisition Transaction;\n(ii)\nengage or participate in any discussions, negotiations or communications regarding, or provide or cause to be provided any non-\npublic information or data relating to World Energy or any of its subsidiaries in connection with, or have any discussions with any\nperson relating to, any actual or proposed Acquisition Transaction, or otherwise encourage or facilitate any effort or attempt to make\nor implement any Acquisition Transaction;\n(iii) approve, endorse or recommend, or publicly propose or announce an intention to approve, endorse or recommend, any Acquisition\nTransaction;\n(iv)\nenter into any letter of intent, agreement in principle, merger agreement, financing agreement, acquisition agreement, option\nagreement or other similar agreement relating to any Acquisition Transaction; or\n(v) approve any transaction or any third party becoming an "interested stockholder" under Section 203 of the Delaware General\nCorporation Law or otherwise exempt any person from any applicable takeover statute.\nWorld Energy agrees that it shall take all necessary steps to promptly inform the World Energy Representatives involved in the transactions\ncontemplated hereby of the obligations undertaken in this Amendment.\nExcept as expressly set forth in Section 8A(1) hereof, the expiration of the Exclusivity Period hereunder will not terminate or otherwise\naffect any of the other provisions of this Agreement\n2. No Other Amendments. Except as expressly amended hereby, the Original Agreement shall remain in full force and effect in all respects.\n3. Miscellaneous.\n(a) This Amendment will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Amendment shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Amendment are necessary for the protection of the business and goodwill of the patties and are considered\nby\nthe parties to be reasonable for such purpose. The Recipient agrees that any breach of this Amendment will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n(e) For the convenience of the parties, this Amendment may be executed by portable document format (pdf) copy or other facsimile\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on\nboth parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC.\nENERNOC, INC.\nBy: /s/ Philip V. Adams\nBy:\n/s/ Neil Moses\nName: Philip V. Adams\nName: Neil Moses\nTitle: CEO\nTitle: COO\nAMENDMENT NO. 2 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 2 to Non-Disclosure Agreement (the "Amendment"), dated August 20, 2014 (the "Effective Date"), between World\nEnergy Solutions, Inc., a Delaware corporation ("World Energy.") with offices at 100 Front Street, Worcester, MA, 01608 and EnerNOC, Inc., a\nDelaware corporation located at One Marina Park Drive, Boston, Massachusetts 02210 ("ENOC"), is entered into in order to amend the Non-\nDisclosure Agreement dated April 15, 2014 between World Energy and ENOC (the "Original Agreement"). Capitalized terms used but not\ndefined herein shall have the respective meanings ascribed thereto in the Original Agreement.\nTo further facilitate a possible transaction or business relationship between World Energy and ENOC and to allow for more effective\ndiligence review, each of the parties, intending to be legally bound, hereby amend the Original Agreement, as amended, as follows:\n1. Exclusivity and Standstill. Section 8A shall be amended and restated as follows:\n8A. (1) Standstill Agreement. In consideration of the Proprietary Information being provided by World Energy to ENOC, ENOC\nagrees that until June 12, 2015 ("Standstill Period"), neither ENOC nor any of its affiliates or its or their respective officers, directors, investment\nbankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, the "Representatives") acting on ENOC's\nbehalf will, unless specifically invited in writing by World Energy's Board of Directors or its duly authorized representative:\n(i) acquire, offer to acquire, or agree to acquire or beneficially own, directly or indirectly, by purchase or otherwise, any securities\nor\ndirect or indirect rights to acquire any securities, or any indebtedness of World Energy or any subsidiary thereof, or any successor entity;\n(ii) make, effect, initiate, cause or participate in any acquisition of any assets of World Energy or any subsidiary thereof, or any\nsuccessor entity;\n(iii) make, effect, initiate, cause or participate in. or make any public announcement with respect to, or submit a proposal for, any\ntender\noffer,\nexchange\noffer,\nmerger,\nbusiness\ncombination,\nrecapitalization,\nrestructuring,\nliquidation,\ndissolution\nor\nextraordinary\ntransaction\ninvolving World Energy or any subsidiary of the other party, or involving any securities or assets of World Energy or any securities or assets of\nany subsidiary of World Energy;\n(iv) make, directly or indirectly, any "solicitation" of "'proxies" (as such terms are used in Rule 14a-1 under the Securities Exchange\nAct of 1934 (the "34 Act")) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of\nWorld Energy;\n(v) form, join or in any way participate in a "group" (as defined in Section 13(d)(3) of the 34 Act) in connection with any of the\nforegoing or act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of World Energy;\n(vi) enter into any discussions, negotiations, arrangements or agreements with any other person relating to any of the foregoing;\n(vii) request World Energy or any of World Energy's Representatives to amend or waive any provisions of this paragraph in a manner\nthat would require public disclosure of such request; or\n(viii) take any action that could reasonably be expected to require World Energy to make a public announcement regarding the\npossibility of any of the events described in sub-clauses (i) through (vii);\nprovided, however, that none of the foregoing restrictions set forth in this Section 8A shall prohibit ENOC from seeking to acquire or acquiring\nany securities of another business entity that provides energy related goods or services and that already beneficially owns securities of World\nEnergy, but expressly excluding a trust, hedge fund or other similar investment vehicle or any current 5% holders of World Energy that have filed\na Schedule 13D or Schedule 13G with the Securities and Exchange Commission. Notwithstanding the foregoing provisions of this paragraph 8A,\nthe foregoing restrictions set forth in this Section 8A shall automatically be inoperative, terminate and be of no further force and effect if\n(A) World Energy enters into a definitive agreement with respect to a merger, consolidation, business combination, tender or exchange offer,\nrecapitalization, restructuring, sale, equity issuance or other transaction involving the sale, transfer, issuance or exchange of all or a controlling\nportion of World Energy's equity securities (or securities convertible into such controlling interest) or any material assets of World Energy or its\naffiliates or subsidiaries representing more than fifty percent (50%) of the consolidated earning power of World Energy and its affiliates or\nsubsidiaries (any of such transactions referred to herein as an "Acquisition Transaction"), (B) World Energy shall have become insolvent, made\nan assignment for the benefit of creditors or voluntarily or involuntarily filed a petition for bankruptcy, or (C) World Energy, its board of\ndirectors or any of its Representatives (i) solicits offers in respect of an Acquisition Transaction (whether through a confidential investment\nbanker-led "process" or otherwise) or (ii) publicly announces an intent to pursue an Acquisition Transaction and fails to (i) with respect to clause\n(C)(i) above, solicit an offer from ENOC; or (ii) with respect to clause (C)(ii), invite ENOC to participate in any process for the evaluation,\nnegotiation and pursuit of the Acquisition Transaction described in such public announcement. World Energy acknowledges that in connection\nwith the evaluation of a possible business relationship or transaction, ENOC may receive material non-public information regarding World\nEnergy and that federal and state securities laws restrict the trading of securities by a person who has received material non-public information.\nFollowing\ntermination\nof\nthe\nforegoing\nrestrictions\nin\nthis\nSection\n8A,\nENOC\nand\nits\nRepresentatives\nshall\nbe\npermitted\n(notwithstanding\nany\nother provision of this Agreement) to consider Proprietary Information in formulating, negotiating, and pursuing an Acquisition Transaction\nby\nENOC.\nNotwithstanding anything to the contrary in this Section 8A, during the Standstill Period, ENOC shall be permitted at any time and\nfrom time to time to submit to the President and/or Chief Executive Officer of World Energy one or more offers, proposals or indications of\ninterest related to a transaction between the parties, provided that each such submission is made on a confidential basis and states that ENOC\ndoes not intend to make a public announcement related to such submission or its text or contents and that ENOC believes, after discussion with\nits counsel, that the receipt thereof by World Energy does not require public disclosure of such submission.\n(2) Exclusivity.. In consideration of ENOC agreeing to the Standstill Agreement above, World Energy agrees that during the period\ncommencing on the Effective Date and ending at 5:30 p.m. in Boston, MA, on the forty-fifth day following the Effective Date (the "Exclusivity.\nPeriod"), World Energy shall not, and shall cause its directors, President/Chief Executive Officer, Chief Financial Officer, other employees,\ninvestment bankers, attorneys, financial advisors and other advisors or agents (collectively, the "World Energy. Representatives") not to, directly\nor indirectly:\n(i)\ninitiate, solicit, encourage (including by way of providing information), facilitate or induce the submission of any inquiries, proposals\nor offers that constitute or may reasonably be expected to lead to, any Acquisition Transaction;\n(ii) engage or participate in any discussions, negotiations or communications regarding, or provide or cause to be provided any non-\npublic information or data relating to World Energy or any of its subsidiaries in connection with, or have any discussions with any\nperson relating to, any actual or proposed Acquisition Transaction or otherwise encourage or facilitate any effort or attempt to make\nor implement any Acquisition Transaction;\n(iii)\napprove, endorse or recommend, or publicly propose or announce an intention to approve, endorse or recommend, any Acquisition\nTransaction;\n(iv) enter into any letter of intent, agreement in principle, merger agreement, financing agreement, acquisition agreement, option\nagreement or other similar agreement relating to any Acquisition Transaction; or\n(v) approve any transaction or any third party becoming an "interested stockholder" under Section 203 of the Delaware General\nCorporation Law or otherwise exempt any person from any applicable takeover statute.\nWorld Energy agrees that it shall take all necessary steps to promptly inform the World Energy Representatives involved in the transactions\ncontemplated hereby of the obligations undertaken in this Amendment.\nExcept as expressly set forth in Section 8A(1) hereof, the expiration of the Exclusivity Period hereunder will not terminate or otherwise\naffect any of the other provisions of this Agreement.\n2. No Other Amendments. Except as expressly amended hereby, the Original Agreement shall remain in full force and effect in all respects.\n3. Miscellaneous.\n(a) This Amendment will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Amendment shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Amendment are necessary for the protection of the business and goodwill of the parties and are considered\nby\nthe parties to be reasonable for such purpose. The Recipient agrees that any breach of this Amendment will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n(e) For the convenience of the parties, this Amendment may be executed by portable document format (pdf) copy or other facsimile\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on\nboth parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC.\nENERNOC, INC.\nBy:\n/s/ Philip Adams\nBy: /s/ Matthew J. Cushing\nName: Philip Adams\nName: Matthew J. Cushing\nTitle: CEO\nTitle: GC & VP\nAMENDMENT NO. 3 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 3 to Non-Disclosure Agreement (the "Amendment"), dated October 3, 2014 (the "Effective Date"), between World\nEnergy Solutions, Inc., a Delaware corporation ("World Energy.") with offices at 100 Front Street, Worcester, MA, 01608 and EnerNOC, Inc., a\nDelaware corporation located at One Marina Park Drive, Boston, Massachusetts 02210 ("ENOC"), is entered into in order to amend the Non-\nDisclosure Agreement dated April 15, 2014 between World Energy and ENOC, as amended by Amendment No.1 to Non-Disclosure Agreement,\ndated June 12, 2014, and Amendment No.2 to Non-Disclosure Agreement, dated August 20, 2014 (the "Original Agreement"). Capitalized terms\nused but not defined herein shall have the respective meanings ascribed thereto in the Original Agreement.\nTo further facilitate a possible transaction or business relationship between World Energy and ENOC and to allow for more effective\ndiligence review, each of the parties, intending to be legally bound, hereby amend the Original Agreement as follows:\n1. Non-Solicitation of Employees. Section 8 shall be amended and restated as follows:\nEach party agrees that for the period of two (2) years from the date of the Original Agreement, it will not, either directly or through others,\nhire, solicit, induce or cause, or attempt to hire, solicit, induce or cause, any person who at any time during the term of this Agreement is an\nemployee of, or a consultant or independent contractor regularly providing services to, the other party or its affiliates (each, a "Covered Person")\nto become an employee of, consultant or independent contractor to or for itself or any of its affiliates; provided, however, that nothing contained\nherein shall be deemed to prohibit any party, either directly or through others, from (i) conducting any genera advertising not specifically\ntargeted at any Covered Person, (ii) after the period ending six (6) months following the termination of the Exclusivity Period, as extended herein\nand from time to time hereafter, the hiring or engagement by a party of any Covered Person of the other party who responds to such general\nadvertising (as referenced in clause (i) above) or who approaches such party or any of its affiliates without any solicitation or inducement to\nleave the employ of the other party or any of its affiliates or (iii) soliciting for employment or hiring any Covered Person of the other party or\nany of its affiliates who was terminated by the other party or any of its affiliates, after the period ending nine (9) months following the\ntermination of such Covered Person by the other party; subject, in each case described in clauses (ii) and (iii), to such Covered Person's\nrestrictive covenants.\n2. Exclusivity.. Notwithstanding anything in the Original Agreement to the contrary, by signing below both parties agree to extend the\nExclusivity Period until 5:30 p.m. in Boston, MA, on October 15, 2014.\n2.\nNo Other Amendments. Except as expressly amended hereby, the Original Agreement shall remain in full force and effect in all respects.\n3. Miscellaneous.\n(a) This Amendment will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Amendment shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Amendment are necessary for the protection of the business and goodwill of the parties and are considered\nby\nthe parties to be reasonable for such purpose. The Recipient agrees that any breach of this Amendment will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n(e) For the convenience of the parties, this Amendment may be executed by portable document format (pdf) copy or other facsimile\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on\nboth parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC.\nENERNOC, INC.\nBy: /s/ Philip V. Adams\nBy: /s/ Matthew J. Cushing\nName: Philip V. Adams\nName: Matthew J. Cushing\nTitle: CEO\nTitle: General Counsel & Vice President\n[ON COMPANY LETTERHEAD]\nCONFIDENTIAL (Via E-mail Attachment)\nOctober 15, 2014\nWorld Energy Solutions, Inc.\n100 Front Street, 20th Floor\nWorcester, MA 01680\nAttention: Philip V. Adams, President & Chief Executive Officer\nRE: Project Wolf\nDear Phil:\nReference is made to that certain Non-Disclosure Agreement, dated April 15, 2014, as amended, between World Energy Solutions, Inc. and\nEnerNOC, Inc. (the "NDA"). Notwithstanding anything in the NDA to the contrary, by signing below both parties agree to extend the Exclusivity\nPeriod (as defined in the NDA) until 5:30 p.m. in Boston, MA, on October 31, 2014.\nNo\nother changes are being made to the NDA. Please sign below to signify your acceptance of this extension.\nVery truly yours,\nBy:\n/s/ Neil Moses\nName: Neil Moses\nTitle: Chief Operating Officer and Chief Financial\nOfficer\nAccepted and agreed as of the date first written above:\nWorld Energy Solutions, Inc.\nBy:\n/s/ Philip V. Adams\nName: Philip V. Adams\nTitle: CEO\n[ON COMPANY LETTERHEAD]\nCONFIDENTIAL (Via E-mail Attachment)\nNovember 3, 2014\nWorld Energy Solutions, Inc.\n100 Front Street, 20th Floor\nWorcester, MA 01680\nAttention: Philip V. Adams, President & Chief Executive Officer\nRE: Project Wolf\nDear Phil:\nReference is made to that certain Non-Disclosure Agreement, dated April 15, 2014, as amended, between World Energy Solutions, Inc. and\nEnerNOC, Inc. (the "NDA"). Notwithstanding anything in the NDA to the contrary, by signing below both parties agree to extend the Exclusivity\nPeriod (as defined in the NDA) until 5:30 p.m. in Boston, MA, on November 3, 2014.\nNo\nother changes are being made to the NDA. Please sign below to signify your acceptance of this extension.\nVery truly yours,\nBy:\n/s/ Neil Moses\nName: Neil Moses\nTitle: Chief Operating Officer and Chief Financial\nOfficer\nAccepted and agreed as of the date first written above:\nWorld Energy Solutions, Inc.\nBy:\n/s/ Philip V. Adams\nName: Philip V. Adams\nTitle: President & Chief Executive Officer	EX-99.D.3 8 d818960dex99d3.htm EX-99 .D.3\nExhibit (d)(3)\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) dated April 15, 2014 (the “Effective Date”), between World Energy Solutions, Inc., a\nDelaware corporation (“World Energy”) with offices at 100 Front Street, Worcester, Massachusetts 01608 and EnerNOC, Inc., a Delaware\ncorporation located at One Marina Park Drive, Boston, Massachusetts 02210 (“ENOC”).\n1. Background. World Energy and ENOC (the “parties”) intend to engage in discussions and negotiations concerning a possible transaction\nor business relationship between them. In the course of such discussions and negotiations and in the course of any such transaction or business\nrelationship, it is anticipated that each party will disclose or deliver to the other party and to the other party’s directors, officers, employees,\nagents or advisors (including, without limitation, attorneys, accountants, consultants, bankers, financial advisors and members of advisory\nboards) (collectively, “Representatives”) certain of its trade secrets or confidential or proprietary information for the purposes of enabling the\nother party to evaluate the feasibility of such transaction or business relationship and to perform its obligations and exercise its rights under any\nsuch transaction or business relationship that is agreed to between the parties (the “Purposes”). The parties have entered into this Agreement in\norder to assure the confidentiality of such trade secrets and confidential or proprietary information in accordance with the terms of this\nAgreement. As used in this Agreement, the party disclosing Proprietary Information (as defined below) is referred to as the “Disclosing Party”;\nthe party receiving such Proprietary Information is referred to as the “Recipient”.\n2. Proprietary Information. As used in this Agreement, the term “Proprietary Information” shall mean all trade secrets or confidential or\nproprietary information designated as such in writing by the Disclosing Party, whether by letter or by the use of an appropriate proprietary stamp\nor legend, prior to or at the time any such trade secret or confidential or proprietary information is disclosed by the Disclosing Party to the\nRecipient. Notwithstanding the foregoing, information which is orally or visually disclosed to the Recipient by the Disclosing Party, or is\ndisclosed in writing without an appropriate letter, proprietary stamp or legend, shall constitute Proprietary Information if it would be apparent to\na reasonable person, familiar with the Disclosing Party’s business and the industry in which it operates, that such information is of a confidential\nor proprietary nature the maintenance of which is important to the Disclosing Party. In addition, the term “Proprietary Information” shall be\ndeemed to include: (a) any notes, analyses, compilations, studies, interpretations, memoranda or other documents prepared by the Recipient or its\nRepresentatives which contain, reflect or are based upon, in whole or in part, any Proprietary Information furnished to the Recipient or its\nRepresentatives pursuant hereto; and (b) the existence or status of, and any information concerning, the discussions between the parties\nconcerning the possible transaction or business relationship.\n3. Use and Disclosure of Proprietary Information. The Recipient and its Representatives shall use the Proprietary Information of the\nDisclosing Party only for the Purposes and such Proprietary Information shall not be used for any other purpose without the prior written consent\nof the Disclosing Party. The Recipient and its Representatives shall hold in confidence, and shall not disclose any Proprietary Information of the\nDisclosing Party; provided. however, that (i) the Recipient may make any disclosure of such information to which the Disclosing Party gives its\nprior written consent; and (ii) any of the Proprietary Information may\nbe disclosed by the Recipient to its Representatives who need to know such information in connection with the Purposes and who are informed\nof the confidential nature of such information and of the terms of this Agreement. In any event, the Recipient shall be responsible for any breach\nof this Agreement by any of its Representatives, and agrees, at its sole expense, to take reasonable measures to restrain its Representatives from\nprohibited or unauthorized disclosure or use of the Proprietary Information, Notwithstanding anything contained in this Agreement to the\ncontrary, this Agreement shall not prohibit the Recipient from disclosing Proprietary Information of the Disclosing Party to the extent required in\norder for the Recipient to comply with applicable laws and regulations, provided that the Recipient provides prior written notice of such required\ndisclosure to the Disclosing Party and takes reasonable and lawful actions to avoid and/or minimize the extent of such disclosure.\n4. Limitation on Obligations. The obligations of the Recipient specified in Section 3 above shall not apply, and the Recipient shall have no\nfurther obligations, with respect to any Proprietary Information to the extent that such Proprietary Information:\n(a) is generally known to the public at the time of disclosure or becomes generally known without Recipient or its Representatives\nviolating this Agreement;\n(b) is in the Recipient’s possession at the time of disclosure;\n(c) becomes known to the Recipient through disclosure by sources other than the Disclosing Party without such sources violating any\nconfidentiality obligations to the Disclosing Party; or\n(d) is independently developed by the Recipient without reference to or reliance upon the Disclosing Party’s Proprietary Information.\n5. Ownership of Proprietary Information. The Recipient agrees that it shall not receive any right, title or interest in, or any license or right\nto use, the Disclosing Party’s Proprietary Information or any patent, copyright, trade secret, trademark or other intellectual property rights\ntherein, by implication or otherwise. Each of the parties hereto represents, warrants and covenants that the trade secrets which it discloses to the\nother party pursuant to this Agreement have not been stolen, appropriated, obtained or converted without authorization.\n6. Return of Proprietary Information. The Recipient shall, upon the written request of the Disclosing Party, return to the Disclosing Party all\nProprietary Information received by the Recipient or its Representatives from the Disclosing Party (and all copies and reproductions thereof). In\naddition, the Recipient shall destroy: (i) any notes, reports or other documents prepared by the Recipient which contain Proprietary Information\nof the Disclosing Party; and (ii) any Proprietary Information of the Disclosing Party (and all copies and reproductions thereof) which is in\nelectronic form or cannot otherwise be returned to the Disclosing Party. Alternatively, upon written request of the Disclosing Party, the Recipient\nshall destroy all Proprietary Information received by the Recipient or its Representatives from the Disclosing Party (and all copies and\nreproduction thereof) and any notes, reports or other documents prepared by the Recipient which contain Proprietary Information of the\nDisclosing Party. Notwithstanding the return or destruction of the Proprietary Information, the Recipient and its Representatives will continue to\nbe bound by their obligations of confidentiality and other obligations hereunder.\n-\n2-\n7. Securities. Recipient represents that it is aware, and will advise its representatives who are informed of the matters that are the subject of\nthis Agreement, of the restrictions imposed by the applicable federal and state securities laws on the purchase or sale of securities by any person\nwho has received material, non-public information regarding a company with publicly traded securities, as well as the restrictions making it\nunlawful to communicate such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or\nsell securities in reliance upon such information.\n8. Non-Solicitation of Employees Covenant. Each party agrees that during the term of this Agreement and for the period of two (2) years\nafter the termination of this Agreement, it will not, either directly or through others solicit or attempt to solicit any employee of the other party\nwith whom such party came into contact with during the evaluation of a possible transaction between the parties to become an employee,\nconsultant or independent contractor to or for itself or any of its affiliates; provided,-however, that nothing contained herein shall be deemed to\nprohibit any party, either directly or through others, from (i) conducting any general solicitation not specifically targeted at any such employee,\nand, for the avoidance of doubt, the hiring or engagement by a party of any employee of the other party who responds to such general advertising\nor who approaches such party or any of its affiliates without any solicitation or inducement to leave the employ of the other party or any of its\naffiliates shall not be deemed a breach of this Section 8, or (ii) soliciting for employment or hiring any employee of the other party or any of its\naffiliates who was terminated by the other party or any of its affiliates; each subject to such employee’s restrictive covenants\n9. Miscellaneous.\n(a) This Agreement supersedes all prior agreements, written or oral, between the parties relating to the subject matter of this\nAgreement. This Agreement may not be modified, changed or discharged, in whole or in part, except by an agreement in writing signed by the\nparties.\n(b) This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Agreement shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Agreement are necessary for the protection of the business and goodwill of the parties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Agreement will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n-\n3-\n(e) The confidentiality obligations imposed by this Agreement shall continue with respect to a particular item of Proprietary\nInformation until the fifth anniversary of the disclosure of such Proprietary Information to Recipient pursuant to this Agreement; provided,\nhowever, that the confidentiality obligations imposed by this Agreement with respect to source code included in the Proprietary Information shall\ncontinue in perpetuity.\n(f) For the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be\ndeemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC.\nENERNOC, INC.\nBy: /s/ Philip V. Adams\nBy: /s/ Matthew J. Cushing\nName: Philip V. Adams\nName: Matthew J. Cushing\nTitle: CEO\nTitle: General Counsel & VP.\nDate: 4/15/14\nDate: April 15, 2014\n-\n4-\nAMENDMENT NO. 1 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 1 to Non-Disclosure Agreement (the “Amendment”), dated June 11, 2014, between World Energy Solutions, Inc., a\nDelaware corporation (“World Energy”) with offices at 100 Front Street, Worcester, MA, 01608 and EnerNOC, Inc., a Delaware corporation\nlocated at One Marina Park Drive, Boston, Massachusetts 02210 (“ENOC”), is entered into in order to amend the Non-Disclosure Agreement\ndated April 15, 2014 between World Energy and ENOC (the “Original Agreement”). Capitalized terms used but not defined herein shall have the\nrespective meanings ascribed thereto in the Original Agreement.\nTo further facilitate a possible transaction or business relationship between World Energy and ENOC and to allow for more effective\ndiligence review, each of the parties, intending to be legally bound, hereby amend the Original Agreement as follows:\n1. Exclusivity and Standstill. A new section 8 A shall be inserted as follows:\n8A. (1) Standstill Agreement. In consideration of the Proprietary Information being provided by World Energy to ENOC, ENOC\nagrees that until March 11, 2015 (“Standstill Period”), neither ENOC nor any of its affiliates or its or their respective officers, directors,\ninvestment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, the “Representatives”) acting on\nENOC’s behalf will, unless specifically invited in writing by World Energy’s Board of Directors or its duly authorized representative:\n(i) acquire, offer to acquire, or agree to acquire or beneficially own, directly or indirectly, by purchase or otherwise, any securities or\ndirect or indirect rights to acquire any securities, or any indebtedness of World Energy or any subsidiary thereof, or any successor entity;\n(ii) make, effect, initiate, cause or participate in any acquisition of any assets of World Energy or any subsidiary thereof, or any\nsuccessor entity;\n(iii) make, effect, initiate, cause or participate in, or make any public announcement with respect to, or submit a proposal for, any\ntender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction\ninvolving World Energy or any subsidiary of the other party, or involving any securities or assets of World Energy or any securities or assets of\nany subsidiary of World Energy;\n(iv) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange\nAct of 1934 (the “34 Act”)) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of\nWorld Energy;\n(v) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the 34 Act) in connection with any of the\nforegoing or act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of World Energy;\n(vi) enter into any discussions, negotiations, arrangements or agreements with any other person relating to any of the foregoing;\n(vii) request World Energy or any of World Energy’s Representatives to amend or waive any provisions of this paragraph in a manner\nthat would require public disclosure of such request; or\n(viii) take any action that could reasonably be expected to require World Energy to make a public announcement regarding the\npossibility of any of the events described in sub-clauses (i) through (vii);\nprovided, however, that none of the foregoing restrictions set forth in this Section 8A shall prohibit ENOC from seeking to acquire or acquiring\nany securities of another business entity that provides energy related goods or services and that already beneficially owns securities of World\nEnergy, but expressly excluding a trust, hedge fund or other similar investment vehicle or any current 5% holders of World Energy that have filed\na Schedule 13D or Schedule 13G with the Securities and Exchange Commission. Notwithstanding the foregoing provisions of this paragraph 8A,\nthe foregoing restrictions set forth in this Section 8A shall automatically be inoperative, terminate and be of no further force and effect if\n(A) World Energy enters into a definitive agreement with respect to a merger, consolidation, business combination, tender or exchange offer,\nrecapitalization, restructuring, sale, equity issuance or other transaction involving the sale, transfer, issuance or exchange of all or a controlling\nportion of World Energy’s equity securities (or securities convertible into such controlling interest) or any material assets of World Energy or its\naffiliates or subsidiaries representing more than fifty percent (50%) of the consolidated earning power of World Energy and its affiliates or\nsubsidiaries (any of such transactions referred to herein as an “Acquisition Transaction”), (B) World Energy shall have become insolvent, made\nan assignment for the benefit of creditors or voluntarily or involuntarily filed a petition for bankruptcy, or (C) World Energy, its board of\ndirectors or any of its Representatives (i) solicits offers in respect of an Acquisition Transaction (whether through a confidential investment\nbanker-led “process” or otherwise) or (ii) publicly announces an intent to pursue an Acquisition Transaction and fails to (i) with respect to clause\n(C)(i) above, solicit an offer from ENOC; or (ii) with respect to clause C(ii), invite ENOC to participate in any process for the evaluation,\nnegotiation and pursuit of the Acquisition Transaction described in such public announcement. World Energy acknowledges that in connection\nwith the evaluation of a possible business relationship or transaction, ENOC may receive material non-public information regarding World\nEnergy and that federal and state securities laws restrict the trading of securities by a person who has received material non-public information.\nFollowing termination of the foregoing restrictions in this Section 8A, ENOC and its Representatives shall be permitted (notwithstanding any\nother provision of this Agreement) to consider Proprietary Information in formulating, negotiating, and pursuing an Acquisition Transaction by\nENOC.\nNotwithstanding anything to the contrary in this Section 8A, during the Standstill Period, ENOC shall be permitted at any time and\nfrom time to time to submit to the President and/or Chief Executive Officer of World Energy one or more offers, proposals or indications of\ninterest related to a transaction between the parties, provided that each such submission is made on a confidential basis and states that ENOC\ndoes not intend to make a public announcement related to such submission or its text or contents and that ENOC believes, after discussion with\nits counsel, that the receipt thereof by World Energy does not require public disclosure of such submission.\n(2) Exclusivity. In consideration of ENOC agreeing to the Standstill Agreement above, World Energy agrees that during the period\ncommencing on the signature of this Amendment No. 1 and ending at 5:30 p.m . in Boston, MA, on June 27, 2014 (the “Exclusivity Period”),\nWorld Energy shall not, and shall cause its directors, President/Chief Executive Officer, Chief Financial Officer, investment bankers, attorneys\nand other financial advisors (collectively, the “World Energy Representatives”) not to, directly or indirectly:\n(i) initiate, solicit, encourage (including by way of providing information), facilitate or induce the submission of any inquiries, proposals\nor offers that constitute or may reasonably be expected to lead to, any Acquisition Transaction;\n(ii) engage or participate in any discussions, negotiations or communications regarding, or provide or cause to be provided any non-\npublic information or data relating to World Energy or any of its subsidiaries in connection with, or have any discussions with any\nperson relating to, any actual or proposed Acquisition Transaction, or otherwise encourage or facilitate any effort or attempt to make\nor implement any Acquisition Transaction;\n(iii) approve, endorse or recommend, or publicly propose or announce an intention to approve, endorse or recommend, any Acquisition\nTransaction;\n(iv) enter into any letter of intent, agreement in principle, merger agreement, financing agreement, acquisition agreement, option\nagreement or other similar agreement relating to any Acquisition Transaction; or\n(v) approve any transaction or any third party becoming an “interested stockholder” under Section 203 of the Delaware General\nCorporation Law or otherwise exempt any person from any applicable takeover statute.\nWorld Energy agrees that it shall take all necessary steps to promptly inform the World Energy Representatives involved in the transactions\ncontemplated hereby of the obligations undertaken in this Amendment.\nExcept as expressly set forth in Section 8A(1) hereof, the expiration of the Exclusivity Period hereunder will not terminate or otherwise\naffect any of the other provisions of this Agreement.\n2. No Other Amendments. Except as expressly amended hereby, the Original Agreement shall remain in full force and effect in all respects.\n3. Miscellaneous.\n(a) This Amendment will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Amendment shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Amendment are necessary for the protection of the business and goodwill of the patties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Amendment will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n(e) For the convenience of the parties, this Amendment may be executed by portable document format (pdf) copy or other facsimile\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on\nboth parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC.\nENERNOC, INC.\nBy: /s/ Philip V. Adams\nBy: /s/ Neil Moses\nName: Philip V. Adams\nName: Neil Moses\nTitle: CEO\nTitle: COO\nAMENDMENT NO. 2 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 2 to Non-Disclosure Agreement (the “Amendment”), dated August 20, 2014 (the “Effective Date”), between World\nEnergy Solutions, Inc., a Delaware corporation (“World Energy”) with offices at 100 Front Street, Worcester, MA, 01608 and EnerNOC, Inc., a\nDelaware corporation located at One Marina Park Drive, Boston, Massachusetts 02210 (“ENOC”), is entered into in order to amend the Non-\nDisclosure Agreement dated April 15, 2014 between World Energy and ENOC (the “Original Agreement”). Capitalized terms used but not\ndefined herein shall have the respective meanings ascribed thereto in the Original Agreement.\nTo further facilitate a possible transaction or business relationship between World Energy and ENOC and to allow for more effective\ndiligence review, each of the parties, intending to be legally bound, hereby amend the Original Agreement, as amended, as follows:\n1. Exclusivity and Standstill. Section 8A shall be amended and restated as follows:\n8A. (1) Standstill Agreement. In consideration of the Proprietary Information being provided by World Energy to ENOC, ENOC\nagrees that until June 12, 2015 (“Standstill Period”), neither ENOC nor any of its affiliates or its or their respective officers, directors, investment\nbankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, the “Representatives”) acting on ENOC’s\nbehalf will, unless specifically invited in writing by World Energy’s Board of Directors or its duly authorized representative:\n(i) acquire, offer to acquire, or agree to acquire or beneficially own, directly or indirectly, by purchase or otherwise, any securities or\ndirect or indirect rights to acquire any securities, or any indebtedness of World Energy or any subsidiary thereof, or any successor entity;\n(ii) make, effect, initiate, cause or participate in any acquisition of any assets of World Energy or any subsidiary thereof, or any\nsuccessor entity;\n(iii) make, effect, initiate, cause or participate in. or make any public announcement with respect to, or submit a proposal for, any\ntender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction\ninvolving World Energy or any subsidiary of the other party, or involving any securities or assets of World Energy or any securities or assets of\nany subsidiary of World Energy;\n(iv) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange\nAct of 1934 (the “34 Act”)) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of\nWorld Energy;\n(v) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the 34 Act) in connection with any of the\nforegoing or act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of World Energy;\n(vi) enter into any discussions, negotiations, arrangements or agreements with any other person relating to any of the foregoing;\n(vii) request World Energy or any of World Energy’s Representatives to amend or waive any provisions of this paragraph in a manner\nthat would require public disclosure of such request; or\n(viii) take any action that could reasonably be expected to require World Energy to make a public announcement regarding the\npossibility of any of the events described in sub-clauses (i) through (vii);\nprovided, however, that none of the foregoing restrictions set forth in this Section 8A shall prohibit ENOC from seeking to acquire or acquiring\nany securities of another business entity that provides energy related goods or services and that already beneficially owns securities of World\nEnergy, but expressly excluding a trust, hedge fund or other similar investment vehicle or any current 5% holders of World Energy that have filed\na Schedule 13D or Schedule 13G with the Securities and Exchange Commission. Notwithstanding the foregoing provisions of this paragraph 8A,\nthe foregoing restrictions set forth in this Section 8A shall automatically be inoperative, terminate and be of no further force and effect if\n(A) World Energy enters into a definitive agreement with respect to a merger, consolidation, business combination, tender or exchange offer,\nrecapitalization, restructuring, sale, equity issuance or other transaction involving the sale, transfer, issuance or exchange of all or a controlling\nportion of World Energy’s equity securities (or securities convertible into such controlling interest) or any material assets of World Energy or its\naffiliates or subsidiaries representing more than fifty percent (50%) of the consolidated earning power of World Energy and its affiliates or\nsubsidiaries (any of such transactions referred to herein as an “Acquisition Transaction”), (B) World Energy shall have become insolvent, made\nan assignment for the benefit of creditors or voluntarily or involuntarily filed a petition for bankruptcy, or (C) World Energy, its board of\ndirectors or any of its Representatives (i) solicits offers in respect of an Acquisition Transaction (whether through a confidential investment\nbanker-led “process” or otherwise) or (ii) publicly announces an intent to pursue an Acquisition Transaction and fails to (i) with respect to clause\n(C)(i) above, solicit an offer from ENOC; or (ii) with respect to clause (C)(ii), invite ENOC to participate in any process for the evaluation,\nnegotiation and pursuit of the Acquisition Transaction described in such public announcement. World Energy acknowledges that in connection\nwith the evaluation of a possible business relationship or transaction, ENOC may receive material non-public information regarding World\nEnergy and that federal and state securities laws restrict the trading of securities by a person who has received material non-public information.\nFollowing termination of the foregoing restrictions in this Section 8A, ENOC and its Representatives shall be permitted (notwithstanding any\nother provision of this Agreement) to consider Proprietary Information in formulating, negotiating, and pursuing an Acquisition Transaction by\nENOC.\nNotwithstanding anything to the contrary in this Section 8A, during the Standstill Period, ENOC shall be permitted at any time and\nfrom time to time to submit to the President and/or Chief Executive Officer of World Energy one or more offers, proposals or indications of\ninterest related to a transaction between the parties, provided that each such submission is made on a confidential basis and states that ENOC\ndoes not intend to make a public announcement related to such submission or its text or contents and that ENOC believes, after discussion with\nits counsel, that the receipt thereof by World Energy does not require public disclosure of such submission.\n(2) Exclusivity. In consideration of ENOC agreeing to the Standstill Agreement above, World Energy agrees that during the period\ncommencing on the Effective Date and ending at 5:30 p.m. in Boston, MA, on the forty-fifth day following the Effective Date (the “Exclusivity\nPeriod”), World Energy shall not, and shall cause its directors, President/Chief Executive Officer, Chief Financial Officer, other employees,\ninvestment bankers, attorneys, financial advisors and other advisors or agents (collectively, the “World Energy Representatives”) not to, directly\nor indirectly:\n(i) initiate, solicit, encourage (including by way of providing information), facilitate or induce the submission of any inquiries, proposals\nor offers that constitute or may reasonably be expected to lead to, any Acquisition Transaction;\n(ii) engage or participate in any discussions, negotiations or communications regarding, or provide or cause to be provided any non-\npublic information or data relating to World Energy or any of its subsidiaries in connection with, or have any discussions with any\nperson relating to, any actual or proposed Acquisition Transaction , or otherwise encourage or facilitate any effort or attempt to make\nor implement any Acquisition Transaction;\n(iii) approve, endorse or recommend, or publicly propose or announce an intention to approve, endorse or recommend, any Acquisition\nTransaction;\n(iv) enter into any letter of intent, agreement in principle, merger agreement, financing agreement, acquisition agreement, option\nagreement or other similar agreement relating to any Acquisition Transaction; or\n(v) approve any transaction or any third party becoming an “interested stockholder” under Section 203 of the Delaware General\nCorporation Law or otherwise exempt any person from any applicable takeover statute.\nWorld Energy agrees that it shall take all necessary steps to promptly inform the World Energy Representatives involved in the transactions\ncontemplated hereby of the obligations undertaken in this Amendment.\nExcept as expressly set forth in Section 8A(1) hereof, the expiration of the Exclusivity Period hereunder will not terminate or otherwise\naffect any of the other provisions of this Agreement.\n2. No Other Amendments. Except as expressly amended hereby, the Original Agreement shall remain in full force and effect in all respects.\n3. Miscellaneous.\n(a) This Amendment will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Amendment shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Amendment are necessary for the protection of the business and goodwill of the parties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Amendment will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n(e) For the convenience of the parties, this Amendment may be executed by portable document format (pdf) copy or other facsimile\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on\nboth parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC.\nENERNOC, INC.\nBy: /s/ Philip Adams\nBy: /s/ Matthew J. Cushing\nName: Philip Adams\nName: Matthew J. Cushing\nTitle: CEO\nTitle: GC & VP\nAMENDMENT NO. 3 TO NON-DISCLOSURE AGREEMENT\nThis Amendment No. 3 to Non-Disclosure Agreement (the “Amendment”), dated October 3, 2014 (the “Effective Date”), between World\nEnergy Solutions, Inc., a Delaware corporation (“World Energy”) with offices at 100 Front Street, Worcester, MA, 01608 and EnerNOC, Inc., a\nDelaware corporation located at One Marina Park Drive, Boston, Massachusetts 02210 (“ENOC”), is entered into in order to amend the Non-\nDisclosure Agreement dated April 15, 2014 between World Energy and ENOC, as amended by Amendment No.1 to Non-Disclosure Agreement,\ndated June 12, 2014, and Amendment No.2 to Non-Disclosure Agreement, dated August 20, 2014 (the “Original Agreement”). Capitalized terms\nused but not defined herein shall have the respective meanings ascribed thereto in the Original Agreement.\nTo further facilitate a possible transaction or business relationship between World Energy and ENOC and to allow for more effective\ndiligence review, each of the parties, intending to be legally bound, hereby amend the Original Agreement as follows:\n1. Non-Solicitation of Employees. Section 8 shall be amended and restated as follows:\nEach party agrees that for the period of two (2) years from the date of the Original Agreement, it will not, either directly or through others,\nhire, solicit, induce or cause, or attempt to hire, solicit, induce or cause, any person who at any time during the term of this Agreement is an\nemployee of, or a consultant or independent contractor regularly providing services to, the other party or its affiliates (each, a “Covered Person”)\nto become an employee of, consultant or independent contractor to or for itself or any of its affiliates; provided, however, that nothing contained\nherein shall be deemed to prohibit any party, either directly or through others, from (i) conducting any general advertising not specifically\ntargeted at any Covered Person, (ii) after the period ending six (6) months following the termination of the Exclusivity Period, as extended herein\nand from time to time hereafter, the hiring or engagement by a party of any Covered Person of the other party who responds to such general\nadvertising (as referenced in clause (i) above) or who approaches such party or any of its affiliates without any solicitation or inducement to\nleave the employ of the other party or any of its affiliates , or (iii) soliciting for employment or hiring any Covered Person of the other party or\nany of its affiliates who was terminated by the other party or any of its affiliates, after the period ending nine (9) months following the\ntermination of such Covered Person by the other party; subject, in each case described in clauses (ii) and (iii), to such Covered Person’s\nrestrictive covenants.\n2. Exclusivity. Notwithstanding anything in the Original Agreement to the contrary, by signing below both parties agree to extend the\nExclusivity Period until 5:30 p.m . in Boston, MA, on October 15, 2014.\n2. No Other Amendments. Except as expressly amended hereby, the Original Agreement shall remain in full force and effect in all respects.\n3. Miscellaneous.\n(a) This Amendment will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and\nassigns.\n(c) This Amendment shall be construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts,\nwithout giving effect to the principles of conflicts of law thereof.\n(d) The provisions of this Amendment are necessary for the protection of the business and goodwill of the parties and are considered\nby the parties to be reasonable for such purpose. The Recipient agrees that any breach of this Amendment will cause the Disclosing Party\nsubstantial and irreparable injury and, therefore, in the event of any such breach, in addition to other remedies which may be available, the\nDisclosing Party shall have the right to specific performance and other injunctive and equitable relief.\n(e) For the convenience of the parties, this Amendment may be executed by portable document format (pdf) copy or other facsimile\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on\nboth parties.\nEXECUTED as a sealed instrument as of the day and year first set forth above.\nWORLD ENERGY SOLUTIONS, INC.\nENERNOC, INC.\nBy: /s/ Philip V. Adams\nBy: /s/ Matthew J. Cushing\nName: Philip V. Adams\nName: Matthew J. Cushing\nTitle: CEO\nTitle: General Counsel & Vice President\n[ON COMPANY LETTERHEAD]\nCONFIDENTIAL (Via E-mail Attachment)\nOctober 15, 2014\nWorld Energy Solutions, Inc.\n100 Front Street, 20th Floor\nWorcester, MA 01680\nAttention: Philip V. Adams, President & Chief Executive Officer\nRE: Project Wolf\nDear Phil:\nReference is made to that certain Non-Disclosure Agreement, dated April 15, 2014, as amended, between World Energy Solutions, Inc. and\nEnerNOC, Inc. (the “NDA”). Notwithstanding anything in the NDA to the contrary, by signing below both parties agree to extend the Exclusivity\nPeriod (as defined in the NDA) until 5:30 p.m . in Boston, MA, on October 31, 2014.\nNo other changes are being made to the NDA. Please sign below to signify your acceptance of this extension.\nVery truly yours,\nBy: /s/ Neil Moses\nName: Neil Moses\nTitle: Chief Operating Officer and Chief Financial\nOfficer\nAccepted and agreed as of the date first written above:\nWorld Energy Solutions, Inc.\nBy: /s/ Philip V. Adams\nName: Philip V. Adams\nTitle: CEO\n[ON COMPANY LETTERHEAD]\nCONFIDENTIAL (Via E-mail Attachment)\nNovember 3, 2014\nWorld Energy Solutions, Inc.\n100 Front Street, 20th Floor\nWorcester, MA 01680\nAttention: Philip V. Adams, President & Chief Executive Officer\nRE: Project Wolf\nDear Phil:\nReference is made to that certain Non-Disclosure Agreement, dated April 15, 2014, as amended, between World Energy Solutions, Inc. and\nEnerNOC, Inc. (the “NDA”). Notwithstanding anything in the NDA to the contrary, by signing below both parties agree to extend the Exclusivity\nPeriod (as defined in the NDA) until 5:30 p.m . in Boston, MA, on November 3, 2014.\nNo other changes are being made to the NDA. Please sign below to signify your acceptance of this extension.\nVery truly yours,\nBy: /s/ Neil Moses\nName: Neil Moses\nTitle: Chief Operating Officer and Chief Financial\nOfficer\nAccepted and agreed as of the date first written above:\nWorld Energy Solutions, Inc.\nBy: /s/ Philip V. Adams\nName: Philip V. Adams\nTitle: President & Chief Executive Officer
+2ab67f26bc51d57492e3f27b244fae3e.pdf	effective_date jurisdiction party term	EX-10.21 2 d881010dex1021.htm EX-10.21\nExhibit 10.21\nCONFIDENTIAL RETIREMENT AGREEMENT AND GENERAL RELEASE\nThis Confidential Retirement Agreement and General Release (“Agreement”), entered into by and between Charles H. Turner (“you” or the\n“Employee”), Pier 1 Services Company (“Company”) and Pier 1 Imports, Inc. (“Parent”) (collectively, the “Parties”) as of the Effective Date (as\ndefined below), arises from your retirement and the associated termination of your employment relationship with the Company. Company,\nParent, their subsidiaries and affiliates are together sometimes referred to herein as “Pier 1.”\nThis Agreement is legally-binding. You are hereby advised to consult with an attorney before signing it.\nYou acknowledge that your retirement from the Company and the associated termination of your employment is effective February 10,\n2015 (the “Effective Date”). The Company has offered you the payments and other benefits described in Section 1 below in conjunction with\nyour retirement. You agree that you are not entitled to any payment provided for in this Agreement unless you execute this Agreement by signing\nthe signature line at the conclusion of this Agreement, and do not revoke it during the revocation period described below. You acknowledge that\nas of the Effective Date you have resigned from all positions as an officer, director or trustee of Pier 1 and with respect to any employee benefit\nplan or other arrangement or accommodation of Pier 1 as to which you have been designated as an officer, director, agent, trustee or other\ncapacity.\n1. Retirement Benefits. In consideration for the promises, covenants and releases contained in this Agreement you will receive a lump-\nsum payment from Company in the amount of $1,083,293.00, subject to applicable taxes and related withholdings. This payment shall be paid\nwithin six business days following the expiration of the Revocation Period, defined herein, provided you have executed and delivered this\nAgreement to the Company in the manner set forth herein without revoking the Agreement. In the event that you revoke this Agreement, you will\nbe ineligible for any payment provided for herein. You acknowledge that this payment is in addition to any monies or benefits to which you are\nalready otherwise entitled under the plans and arrangements described on Annex A to this Agreement (the “Other Retirement Benefits”) and that\nthe payment represents good and sufficient consideration for your promises, covenants and releases set forth in this Agreement.\n2. General Release. In consideration for the payment described in Section 1 above, to which you are otherwise not entitled, you – on\nbehalf of yourself, your family, assigns, representatives, agents, estate, heirs, beneficiaries, executors, administrators, successors, and/or\nattorneys, if any — waive and release Company, Parent, their affiliates and subsidiaries, and all of their current and former respective officers,\ndirectors, employees, stockholders, representatives and agents, including their successors and assigns (collectively the “Releasees”), with respect\nto any and all claims, losses, liabilities, obligations and causes of action, known and unknown, arising out of, connected with, or relating to:\n(i) your employment; (ii) the Releasees’ refusal or failure to continue your employment; or (iii) the termination of your employment, including,\nbut not limited to, claims for compensation, commissions, bonuses, stock options, other wages and benefits, breach of contract, wrongful\ntermination, impairment of economic opportunity, intentional infliction of emotional distress, claims based on personal injury, work-related\naccident, any breach of implied or express covenant of good faith and fair dealing, violation of public policy, or any other contract, tort or\npersonal injury claim, or claim based on any municipal, state or federal statute, regulation or ordinance relating to employment, employment\ndiscrimination or retaliation, including but not limited to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq.; The\nCivil Rights Act of 1866, as amended, 42 U.S .C . § 1981; The Civil Rights Act of 1991, as amended, 42 U.S.C . § 1981a; The Age\nDiscrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.; Americans With Disabilities Act, as amended, 42 U.S.C . §\n12101 et seq.; Fair Labor\nStandards Act, as amended, 29 U.S.C . § 201, et seq.; Equal Pay Act, as amended, 29 U.S.C. § 201 et seq.; National Labor Relations Act, as\namended, 29 U.S .C . § 151 et seq.; Worker Adjustment and Retraining Notification Act, as amended, 29 U.S.C . § 2101 et seq., Employee\nRetirement Income Security Act, as amended, 29 U.S.C . § 1000 et seq.; Family and Medical Leave Act, as amended, 29 U.S .C . § 2601, et seq.;\nChapter 21 of the Texas Labor Code or any other statute, rule, regulation, ordinance, or common civil or other law, or judicial or administrative\ninterpretation whether promulgated by Federal, State, local or other jurisdiction or political subdivision. This Agreement extinguishes any\npotential monetary recovery from employment discrimination claims you may have relating to your employment with the Company and the\ntermination of your employment existing on the Effective Date of this Agreement.\nNothing in this Agreement will prevent you from initiating or participating in any State or Federal agency administrative proceeding\nincluding proceedings before the Equal Employment Opportunity Commission or from testifying at an administrative hearing, deposition, or in\ncourt in response to a lawful subpoena.\nThis Agreement does not release or terminate any of your rights pursuant to the Indemnification Agreement dated January 18, 2011,\nbetween you and Parent (the “Indemnification Agreement”), or the Other Retirement Benefits, which shall continue in full force and effect in\naccordance with their respective terms. This Agreement does not release or waive your rights as an employee to (i) any vested benefits under a\nbenefit plan which by its terms specifically provides for the vesting of benefits prior to or upon the Effective Date, (ii) convert any insured\nbenefits under an employee benefit plan to the extent the plan allows conversion, or (iii) maintain your medical insurance in force as provided by\nthe Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA).\n3. Non-Assignment. You represent and warrant that you have not assigned to any third party any claim involving the Releasees or\nauthorized any third party to assert on your behalf any claim against the Releasees. If a third party asserts a claim against the Releasees on your\nbehalf or includes you as a class member in any class action involving any claim released under this Agreement, you shall not accept any benefits\nor damages relating or arising out of such claim.\n4. Return of Property. You represent and warrant that you have returned all property, equipment, documents and other tangible things,\nincluding keys, cell phones, pagers, corporate credit cards, and laptops or other computers of Pier 1 — except for documents reflecting your\ncompensation and benefits (Other Retirement Benefits) while employed by Pier 1 — in accordance with Company’s policies and rules, effective\non your last day of work with the Company, or if you failed to do so, you agree to do so immediately upon finding any such items in your\npossession. You represent and warrant that you have not, and you agree that in the future you shall not, destroy, alter, erase, or otherwise change\nany software, data, or other information belonging to Company. Further, you hereby consent to pay Company the value of any property,\nequipment and tangible things that you fail to return in accordance with this Agreement and any monies you owe Pier 1, up to the maximum\namount allowed by law.\n5. Confidentiality. You agree that the terms of this Agreement shall be confidential. You shall not disclose the terms to anyone other than\nyour spouse, attorney, accountant, financial planner, or tax advisor, without Company’s prior written approval, except as may be required by law\nand/or court order. You shall not disclose the terms of this Agreement to your spouse, attorney, accountant, financial planner, or tax advisor\nunless the receiving party agrees to abide by the confidentiality provisions of this Agreement, and you agree to be responsible for any breach of\nconfidentiality by your spouse, attorney, accountant, financial planner and/or tax advisor. If you receive a request pursuant to applicable law to\ndisclose the existence or terms of this Agreement, you shall promptly notify Company’s Legal Department to enable Company to seek a\nprotective order or other appropriate remedy prior to any disclosure made by you.\n6. Confidential Information and Trade Secrets. You acknowledge that during your employment with Company, you have been given\naccess to and use of trade secrets, proprietary data, or other confidential information, which were developed at considerable effort and expense,\nand which if acquired by competitors of Pier 1 would give them an unfair business advantage. You understand and agree that this information, if\nused by or disclosed to anyone but Pier 1 and its employees with a need to know, will place Pier 1 at a competitive disadvantage. You further\nacknowledge that you have not used or disclosed such trade secrets, proprietary data, or other confidential information during your employment\nwith Company, except as authorized in writing by Company or in the normal exercise of your job duties for the benefit of Pier 1.\nIn further consideration for the above-recited covenants, promises and statements of understanding between the parties, including the\npayment described in Section 1 of this Agreement, to which you are otherwise not entitled, you agree that you shall not, without the prior express\nwritten consent of the Company, directly or indirectly communicate or disclose, or use for your benefit or the benefit of any other person, firm,\nassociation, or corporation, any of the Releasees’ trade secrets, proprietary data or other confidential information, which trade secrets, proprietary\ndata and other confidential information were communicated to or otherwise learned or acquired by you during your employment relationship\nwith the Company, except that you may disclose such matters to the extent that disclosure is required (a) at the Company’s direction or (b) by a\nlawful order of a court or other governmental agency of competent jurisdiction. For so long as such matters remain trade secrets, proprietary data,\nor other confidential information, you agree that you will not use such trade secrets, proprietary data, or other confidential information in any\nway or in any capacity other than as expressly consented to by the Company.\nNothing in the above paragraph shall be construed to restrict you from using your general knowledge, skills, and experience acquired\nduring your employment with the Company in future employment whether or not such employment is with a direct competitor of Pier 1.\nSuch trade secrets, proprietary data, or other confidential information include, but are not limited to, the following: information concerning\nstrategic marketing plans or product development plans; cost or pricing information; vendor or supplier information; business plans or methods;\ncustomer lists or data; information regarding proposed joint ventures, mergers, acquisitions, and other such anticipated or contemplated business\nventures of Pier 1; projects, whether completed, in progress, or only contemplated; real estate plans and strategy; investment opportunities and\nother information related to investments of Pier 1, whether past, present or future; confidential financial information; financial planning and\nanalysis modeling and methodology; intellectual property; financial accounting and reporting; tax planning and strategy; personnel information;\nideas; discoveries; designs; inventions; improvements; know-how; writings and other works of authorship; computer programs; accounting\ninformation; lists; analyses; studies; technology; programs; flow charts; information regarding products or techniques; strategies; or, any other\nbusiness information that relates in any manner to the actual or anticipated business of Pier 1, and which they have not intentionally disclosed to\nits competitors or to the general public.\nThe obligations set forth herein shall be in addition to any other confidentiality obligations that you may have to any of the Releasees.\nYou further acknowledge that the injury the Releasees will suffer in the event of your breach of any covenant or agreement set forth in\nSections 5, 6, 7, 8 or 9 herein cannot be compensated by monetary damages alone, and you therefore agree that the Releasees, in addition to and\nwithout limiting any other remedies or otherwise, shall have the right to obtain an injunction against you.\n7. Nondisparagement. You shall not make any untrue, misleading, or disparaging statements, or comments concerning the Releasees.\nDuring their tenure, the current Executive Officers and members of the Board of Directors of Parent shall not make any untrue, misleading, or\ndisparaging public statements or comments about you. The Parties agree that the commitments in this paragraph will not limit or prohibit them\nfrom testifying truthfully, or providing truthful information in connection with any pending or threatened legal proceeding or to any\ngovernmental agency or as otherwise required by law.\n8. Nonsolicitation. For a period of one year beginning on the day following the Effective Date, you shall not under any circumstances\nemploy, solicit the employment of, or accept the services of, any “protected person” or recommend the employment of any “protected person” to\nany other business organization. A “protected person” is a person known by you to be employed by Pier 1 or to have been employed by Pier 1\nwithin six months prior to the commencement of conversations with such person with respect to employment. The term “subsidiary” as used in\nthis Agreement means a corporation or other entity more than 50 percent of whose outstanding securities or interests representing the right, other\nthan as affected by events of default, to vote for the election of directors or otherwise select a similar governing body is owned by Pier 1.\nAs to (i) each “protected person” to whom the foregoing applies, (ii) each limitation on (A) employment, (B) solicitation and\n(C) acceptance of services, of each “protected person” and (iii) each month of the period during which the provisions of this Section 8 apply to\neach of the foregoing, the provisions set forth in this Section 8 are deemed to be separate and independent agreements and in the event of\nunenforceability of any such agreement, such unenforceable agreement shall be deemed automatically deleted from the provisions hereof and\nsuch deletion shall not affect the enforceability of any other provision of this Section 8 or any other term of this Agreement.\n9. Cooperation. You agree to cooperate with Pier 1 at such reasonable times and places as may be reasonably requested, and to provide all\ninformation that may be reasonably requested with respect to any matter involving your present or former relationship with Pier 1, the work you\nhave performed for Pier 1, or present or former employees, so long as such requests do not unreasonably interfere with any other job or\nsignificant personal activity in which you are engaged. This specifically includes your assistance in regulatory inquiries, investigations and\nlitigation matters, including depositions and/or court appearances in connection therewith, which may include appearances in other states. Pier 1\nwill make every effort to schedule these matters at times and locations convenient for you should they arise. The Company will reimburse you\nfor reasonable expenses, such as telephone, travel, lodging, and meal expenses, you incur at the request of Pier 1, consistent with the Company’s\ngenerally applicable policies for employee expenses.\n10. No Authority. As of your last day of employment with Company, you shall have no authority to obligate Pier 1 in any manner, and\nshall not enter into, or attempt to enter into, any contracts on their behalf. You shall not make any representation, warranty, or other statement, or\ntake any action, that may be construed by a third party to indicate that you have authority to obligate Pier 1 or to enter into a contract on any of\ntheir behalf.\n11. No Admission of Wrongdoing. This Agreement shall not in any way be construed as an admission of liability or as an admission that\nany of the Releasees or you have acted wrongfully with respect to each other. Each of the Releasees and you specifically deny and disclaim any\nsuch liability or wrongful acts.\n12. Venue and Applicable Law. This Agreement shall be performed in Fort Worth, Texas, and the laws of the State of Texas shall govern\nthe enforceability, interpretation and legal effect of this\nAgreement. The parties shall submit to the jurisdiction of the federal and state courts sitting in Tarrant County, Texas, for all purposes relating to\nthe validity, interpretation or enforcement of this Agreement, including, without limitation, any application for injunctive relief.\n13. Remedies. Any material breach by you of the terms and conditions contained in this Agreement shall give Company the right to\ndiscontinue the performance of any unperformed duties and obligations under this Agreement to the extent permitted by applicable law, and shall\nentitle Pier 1 to legal, injunctive, or other equitable relief on account of such breach.\n14. Entire Agreement. This Agreement together with the agreements and plans described on Annex A to this Agreement constitute our\nentire agreement and supersedes any prior agreements or understandings between Company, Parent and you with respect to the subject matter\nherein, except for any confidentiality obligations referred to elsewhere herein. You acknowledge that you enter into this Agreement without\nreliance on any written or oral promise or representation, other than those contained in this Agreement.\n15. Severability. If any provision of this Agreement shall be determined by a court to be void or unenforceable, the remaining provisions\nshall remain effective and legally binding, and the void or unenforceable term shall be deemed not to be a part of this Agreement.\n16. Headings. The headings in each Section herein are for convenience of reference only and shall be of no legal effect in the interpretation\nof the terms hereof.\n17. Waiver. If you breach any term of the Agreement, any delay by Pier 1 in enforcing the Agreement shall not be deemed a waiver or\nacceptance. No waiver shall bind Pier 1 unless supported by consideration, executed in writing by the party to be bound, and delivered to you by\nan authorized officer or agent.\n18. Attorneys’ Fees. In any dispute between Company or Parent and you regarding the terms of this Agreement and/or any alleged breach\nthereof, the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees arising out of such dispute, provided that such\nrecovery is not otherwise prohibited by law.\n19. Knowing and Voluntary Agreement. You are advised in writing to consult with an attorney before executing this Agreement.\nYou acknowledge and agree that: (i) after you received a copy of this Agreement in writing you had adequate opportunity to review this\nAgreement; (ii) you fully understand its contents; (iii) you have been advised to consult an attorney before signing it; and (iv) you enter\ninto this Agreement knowingly, voluntarily and after any consultations with your attorney or other advisor, as you deem appropriate.\n20. Review Period, Execution and Revocation. In order to be eligible for the payment described in Section 1 above, you must sign and\nreturn the original of this Agreement by 5:00 p.m., on March13, 2015 (the “Due Date”) to Michael A. Carter at the offices of the Company.\nYou acknowledge that you will have had at least 21 calendar days from your receipt of this Agreement on February 20, 2015 to consider\nwhether to accept its terms. Any changes to this Agreement, whether material or immaterial, shall not restart the running of the 21-day period.\nAfter signing the Agreement and properly returning it to the Company, you shall have seven calendar days to consider whether to revoke it\n(the “Revocation Period”). If you choose to revoke this Agreement, you must do so by serving written notice to Pier 1 Services Company by\nfacsimile at 817-\n334-0191, Attn: Legal Department, before the expiration of the Revocation Period and obtain written confirmation of delivery. You acknowledge\nthat this Agreement shall become effective, fully enforceable and irrevocable upon the expiration of the seven-day period following your signing\nof this Agreement. This Agreement shall be null and void if: (i) you fail to execute and return the original of this Agreement on or prior to the\nDue Date; or (ii) you sign it within 21 days, but revoke your execution within seven calendar days after signing it.\nIN WITNESS WHEREOF, this Confidential Retirement Agreement and General Release has been executed\nby each of the listed parties below.\nEMPLOYEE:\nPIER 1 SERVICES COMPANY,\na Delaware statutory trust\nPrinted Name: Charles H. Turner\nBy:\nPier 1 Holdings, Inc., a Delaware corporation,\nIts managing trustee\nSignature:\n/s/ Charles H. Turner\nBy:\n/s/ Michael A. Carter\nDate:\nMarch 1, 2015\nMichael A. Carter\nAddress:\n4612 Lakeside Drive\nSR VP Compliance and General Counsel\nColleyville, TX\nPIER 1 IMPORTS, INC.\nBy:\n/s/ Alexander W. Smith\nAlexander W. Smith, President and CEO\nDate:\nMarch 16, 2015\nAddress: 100 Pier 1 Place, Fort Worth TX 76102\nAttn:\nMichael A. Carter, General Counsel	EX-10.21 2 d881010dex1021.htm EX-10.21\nExhibit 10.21\nCONFIDENTIAL RETIREMENT AGREEMENT AND GENERAL RELEASE\nThis Confidential Retirement Agreement and General Release (“Agreement”), entered into by and between Charles H. Turner (“you” or the\n“Employee”), Pier 1 Services Company (“Company”) and Pier 1 Imports, Inc. (“Parent”) (collectively, the “Parties”) as of the Effective Date (as\ndefined below), arises from your retirement and the associated termination of your employment relationship with the Company. Company,\nParent, their subsidiaries and affiliates are together sometimes referred to herein as “Pier 1.”\nThis Agreement is legally-binding. You are hereby advised to consult with an attorney before signing it.\nYou acknowledge that your retirement from the Company and the associated termination of your employment is effective February 10,\n2015 (the “Effective Date”). The Company has offered you the payments and other benefits described in Section 1 below in conjunction with\nyour retirement. You agree that you are not entitled to any payment provided for in this Agreement unless you execute this Agreement by signing\nthe signature line at the conclusion of this Agreement, and do not revoke it during the revocation period described below. You acknowledge that\nas of the Effective Date you have resigned from all positions as an officer, director or trustee of Pier 1 and with respect to any employee benefit\nplan or other arrangement or accommodation of Pier 1 as to which you have been designated as an officer, director, agent, trustee or other\ncapacity.\n1. Retirement Benefits. In consideration for the promises, covenants and releases contained in this Agreement you will receive a lump-\nsum payment from Company in the amount of $1,083,293.00, subject to applicable taxes and related withholdings. This payment shall be paid\nwithin six business days following the expiration of the Revocation Period, defined herein, provided you have executed and delivered this\nAgreement to the Company in the manner set forth herein without revoking the Agreement. In the event that you revoke this Agreement, you will\nbe ineligible for any payment provided for herein. You acknowledge that this payment is in addition to any monies or benefits to which you are\nalready otherwise entitled under the plans and arrangements described on Annex A to this Agreement (the “Other Retirement Benefits”) and that\nthe payment represents good and sufficient consideration for your promises, covenants and releases set forth in this Agreement.\n2. General Release. In consideration for the payment described in Section 1 above, to which you are otherwise not entitled, you — on\nbehalf of yourself, your family, assigns, representatives, agents, estate, heirs, beneficiaries, executors, administrators, successors, and/or\nattorneys, if any — waive and release Company, Parent, their affiliates and subsidiaries, and all of their current and former respective officers,\ndirectors, employees, stockholders, representatives and agents, including their successors and assigns (collectively the “Releasees™), with respect\nto any and all claims, losses, liabilities, obligations and causes of action, known and unknown, arising out of, connected with, or relating to:\n(i) your employment; (ii) the Releasees’ refusal or failure to continue your employment; or (iii) the termination of your employment, including,\nbut not limited to, claims for compensation, commissions, bonuses, stock options, other wages and benefits, breach of contract, wrongful\ntermination, impairment of economic opportunity, intentional infliction of emotional distress, claims based on personal injury, work-related\naccident, any breach of implied or express covenant of good faith and fair dealing, violation of public policy, or any other contract, tort or\npersonal injury claim, or claim based on any municipal, state or federal statute, regulation or ordinance relating to employment, employment\ndiscrimination or retaliation, including but not limited to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq.; The\nCivil Rights Act of 1866, as amended, 42 U.S.C. § 1981; The Civil Rights Act of 1991, as amended, 42 U.S.C. § 1981a; The Age\nDiscrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.; Americans With Disabilities Act, as amended, 42 U.S.C. §\n12101 et seq.; Fair Labor\nStandards Act, as amended, 29 U.S.C. § 201, et seq.; Equal Pay Act, as amended, 29 U.S.C. § 201 et seq.; National Labor Relations Act, as\namended, 29 U.S.C. § 151 et seq.; Worker Adjustment and Retraining Notification Act, as amended, 29 U.S.C. § 2101 et seq., Employee\nRetirement Income Security Act, as amended, 29 U.S.C. § 1000 et seq.; Family and Medical Leave Act, as amended, 29 U.S.C. § 2601, et seq.;\nChapter 21 of the Texas Labor Code or any other statute, rule, regulation, ordinance, or common civil or other law, or judicial or administrative\ninterpretation whether promulgated by Federal, State, local or other jurisdiction or political subdivision. This Agreement extinguishes any\npotential monetary recovery from employment discrimination claims you may have relating to your employment with the Company and the\ntermination of your employment existing on the Effective Date of this Agreement.\nNothing in this Agreement will prevent you from initiating or participating in any State or Federal agency administrative proceeding\nincluding proceedings before the Equal Employment Opportunity Commission or from testifying at an administrative hearing, deposition, or in\ncourt in response to a lawful subpoena.\nThis Agreement does not release or terminate any of your rights pursuant to the Indemnification Agreement dated January 18, 2011,\nbetween you and Parent (the “Indemnification Agreement”), or the Other Retirement Benefits, which shall continue in full force and effect in\naccordance with their respective terms. This Agreement does not release or waive your rights as an employee to (i) any vested benefits under a\nbenefit plan which by its terms specifically provides for the vesting of benefits prior to or upon the Effective Date, (ii) convert any insured\nbenefits under an employee benefit plan to the extent the plan allows conversion, or (iii) maintain your medical insurance in force as provided by\nthe Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA).\n3. Non-Assignment. You represent and warrant that you have not assigned to any third party any claim involving the Releasees or\nauthorized any third party to assert on your behalf any claim against the Releasees. If a third party asserts a claim against the Releasees on your\nbehalf or includes you as a class member in any class action involving any claim released under this Agreement, you shall not accept any benefits\nor damages relating or arising out of such claim.\n4. Return of Property. You represent and warrant that you have returned all property, equipment, documents and other tangible things,\nincluding keys, cell phones, pagers, corporate credit cards, and laptops or other computers of Pier 1 — except for documents reflecting your\ncompensation and benefits (Other Retirement Benefits) while employed by Pier 1 — in accordance with Company’s policies and rules, effective\non your last day of work with the Company, or if you failed to do so, you agree to do so immediately upon finding any such items in your\npossession. You represent and warrant that you have not, and you agree that in the future you shall not, destroy, alter, erase, or otherwise change\nany software, data, or other information belonging to Company. Further, you hereby consent to pay Company the value of any property,\nequipment and tangible things that you fail to return in accordance with this Agreement and any monies you owe Pier 1, up to the maximum\namount allowed by law.\n5. Confidentiality. You agree that the terms of this Agreement shall be confidential. You shall not disclose the terms to anyone other than\nyour spouse, attorney, accountant, financial planner, or tax advisor, without Company’s prior written approval, except as may be required by law\nand/or court order. You shall not disclose the terms of this Agreement to your spouse, attorney, accountant, financial planner, or tax advisor\nunless the receiving party agrees to abide by the confidentiality provisions of this Agreement, and you agree to be responsible for any breach of\nconfidentiality by your spouse, attorney, accountant, financial planner and/or tax advisor. If you receive a request pursuant to applicable law to\ndisclose the existence or terms of this Agreement, you shall promptly notify Company’s Legal Department to enable Company to seek a\nprotective order or other appropriate remedy prior to any disclosure made by you.\n6. Confidential Information and Trade Secrets. You acknowledge that during your employment with Company, you have been given\naccess to and use of trade secrets, proprietary data, or other confidential information, which were developed at considerable effort and expense,\nand which if acquired by competitors of Pier 1 would give them an unfair business advantage. You understand and agree that this information, if\nused by or disclosed to anyone but Pier 1 and its employees with a need to know, will place Pier 1 at a competitive disadvantage. You further\nacknowledge that you have not used or disclosed such trade secrets, proprietary data, or other confidential information during your employment\nwith Company, except as authorized in writing by Company or in the normal exercise of your job duties for the benefit of Pier 1.\nIn further consideration for the above-recited covenants, promises and statements of understanding between the parties, including the\npayment described in Section 1 of this Agreement, to which you are otherwise not entitled, you agree that you shall not, without the prior express\nwritten consent of the Company, directly or indirectly communicate or disclose, or use for your benefit or the benefit of any other person, firm,\nassociation, or corporation, any of the Releasees’ trade secrets, proprietary data or other confidential information, which trade secrets, proprietary\ndata and other confidential information were communicated to or otherwise learned or acquired by you during your employment relationship\nwith the Company, except that you may disclose such matters to the extent that disclosure is required (a) at the Company’s direction or (b) by a\nlawful order of a court or other governmental agency of competent jurisdiction. For so long as such matters remain trade secrets, proprietary data,\nor other confidential information, you agree that you will not use such trade secrets, proprietary data, or other confidential information in any\nway or in any capacity other than as expressly consented to by the Company.\nNothing in the above paragraph shall be construed to restrict you from using your general knowledge, skills, and experience acquired\nduring your employment with the Company in future employment whether or not such employment is with a direct competitor of Pier 1.\nSuch trade secrets, proprietary data, or other confidential information include, but are not limited to, the following: information concerning\nstrategic marketing plans or product development plans; cost or pricing information; vendor or supplier information; business plans or methods;\ncustomer lists or data; information regarding proposed joint ventures, mergers, acquisitions, and other such anticipated or contemplated business\nventures of Pier 1; projects, whether completed, in progress, or only contemplated; real estate plans and strategy; investment opportunities and\nother information related to investments of Pier 1, whether past, present or future; confidential financial information; financial planning and\nanalysis modeling and methodology; intellectual property; financial accounting and reporting; tax planning and strategy; personnel information;\nideas; discoveries; designs; inventions; improvements; know-how; writings and other works of authorship; computer programs; accounting\ninformation; lists; analyses; studies; technology; programs; flow charts; information regarding products or techniques; strategies; or, any other\nbusiness information that relates in any manner to the actual or anticipated business of Pier 1, and which they have not intentionally disclosed to\nits competitors or to the general public.\nThe obligations set forth herein shall be in addition to any other confidentiality obligations that you may have to any of the Releasees.\nYou further acknowledge that the injury the Releasees will suffer in the event of your breach of any covenant or agreement set forth in\nSections 5, 6, 7, 8 or 9 herein cannot be compensated by monetary damages alone, and you therefore agree that the Releasees, in addition to and\nwithout limiting any other remedies or otherwise, shall have the right to obtain an injunction against you.\n7. Nondisparagement. You shall not make any untrue, misleading, or disparaging statements, or comments concerning the Releasees.\nDuring their tenure, the current Executive Officers and members of the Board of Directors of Parent shall not make any untrue, misleading, or\ndisparaging public statements or comments about you. The Parties agree that the commitments in this paragraph will not limit or prohibit them\nfrom testifying truthfully, or providing truthful information in connection with any pending or threatened legal proceeding or to any\ngovernmental agency or as otherwise required by law.\n8. Nonsolicitation. For a period of one year beginning on the day following the Effective Date, you shall not under any circumstances\nemploy, solicit the employment of, or accept the services of, any “protected person” or recommend the employment of any “protected person” to\nany other business organization. A “protected person” is a person known by you to be employed by Pier 1 or to have been employed by Pier 1\nwithin six months prior to the commencement of conversations with such person with respect to employment. The term “subsidiary” as used in\nthis Agreement means a corporation or other entity more than 50 percent of whose outstanding securities or interests representing the right, other\nthan as affected by events of default, to vote for the election of directors or otherwise select a similar governing body is owned by Pier 1.\n \nAs to (i) each “protected person” to whom the foregoing applies, (ii) each limitation on (A) employment, (B) solicitation and\n(C) acceptance of services, of each “protected person” and (iii) each month of the period during which the provisions of this Section 8 apply to\neach of the foregoing, the provisions set forth in this Section 8 are deemed to be separate and independent agreements and in the event of\nunenforceability of any such agreement, such unenforceable agreement shall be deemed automatically deleted from the provisions hereof and\nsuch deletion shall not affect the enforceability of any other provision of this Section 8 or any other term of this Agreement.\n9. Cooperation. You agree to cooperate with Pier 1 at such reasonable times and places as may be reasonably requested, and to provide all\ninformation that may be reasonably requested with respect to any matter involving your present or former relationship with Pier 1, the work you\nhave performed for Pier 1, or present or former employees, so long as such requests do not unreasonably interfere with any other job or\nsignificant personal activity in which you are engaged. This specifically includes your assistance in regulatory inquiries, investigations and\nlitigation matters, including depositions and/or court appearances in connection therewith, which may include appearances in other states. Pier 1\nwill make every effort to schedule these matters at times and locations convenient for you should they arise. The Company will reimburse you\nfor reasonable expenses, such as telephone, travel, lodging, and meal expenses, you incur at the request of Pier 1, consistent with the Company’s\ngenerally applicable policies for employee expenses.\n10. No Authority. As of your last day of employment with Company, you shall have no authority to obligate Pier 1 in any manner, and\nshall not enter into, or attempt to enter into, any contracts on their behalf. You shall not make any representation, warranty, or other statement, or\ntake any action, that may be construed by a third party to indicate that you have authority to obligate Pier 1 or to enter into a contract on any of\ntheir behalf.\n11. No Admission of Wrongdoing. This Agreement shall not in any way be construed as an admission of liability or as an admission that\nany of the Releasees or you have acted wrongfully with respect to each other. Each of the Releasees and you specifically deny and disclaim any\nsuch liability or wrongful acts.\n12. Venue and Applicable Law. This Agreement shall be performed in Fort Worth, Texas, and the laws of the State of Texas shall govern\nthe enforceability, interpretation and legal effect of this\nAgreement. The parties shall submit to the jurisdiction of the federal and state courts sitting in Tarrant County, Texas, for all purposes relating to\nthe validity, interpretation or enforcement of this Agreement, including, without limitation, any application for injunctive relief.\n13. Remedies. Any material breach by you of the terms and conditions contained in this Agreement shall give Company the right to\ndiscontinue the performance of any unperformed duties and obligations under this Agreement to the extent permitted by applicable law, and shall\nentitle Pier 1 to legal, injunctive, or other equitable relief on account of such breach.\n14. Entire Agreement. This Agreement together with the agreements and plans described on Annex A to this Agreement constitute our\nentire agreement and supersedes any prior agreements or understandings between Company, Parent and you with respect to the subject matter\nherein, except for any confidentiality obligations referred to elsewhere herein. You acknowledge that you enter into this Agreement without\nreliance on any written or oral promise or representation, other than those contained in this Agreement.\n15. Severability. If any provision of this Agreement shall be determined by a court to be void or unenforceable, the remaining provisions\nshall remain effective and legally binding, and the void or unenforceable term shall be deemed not to be a part of this Agreement.\n16. Headings. The headings in each Section herein are for convenience of reference only and shall be of no legal effect in the interpretation\nof the terms hereof.\n17. Waiver. If you breach any term of the Agreement, any delay by Pier 1 in enforcing the Agreement shall not be deemed a waiver or\nacceptance. No waiver shall bind Pier 1 unless supported by consideration, executed in writing by the party to be bound, and delivered to you by\nan authorized officer or agent.\n18. Attorneys’ Fees. In any dispute between Company or Parent and you regarding the terms of this Agreement and/or any alleged breach\nthereof, the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees arising out of such dispute, provided that such\nrecovery is not otherwise prohibited by law.\n \n19. Knowing and Voluntary Agreement. You are advised in writing to consult with an attorney before executing this Agreement.\nYou acknowledge and agree that: (i) after you received a copy of this Agreement in writing you had adequate opportunity to review this\nAgreement; (ii) you fully understand its contents; (iii) you have been advised to consult an attorney before signing it; and (iv) you enter\ninto this Agreement knowingly, veluntarily and after any consultations with your attorney or other advisor, as you deem appropriate.\n20. Review Period, Execution and Revocation. In order to be eligible for the payment described in Section 1 above, you must sign and\nreturn the original of this Agreement by 5:00 p.m., on March13, 2015 (the “Due Date) to Michael A. Carter at the offices of the Company.\nYou acknowledge that you will have had at least 21 calendar days from your receipt of this Agreement on February 20, 2015 to consider\nwhether to accept its terms. Any changes to this Agreement, whether material or immaterial, shall not restart the running of the 21-day period.\nAfter signing the Agreement and properly returning it to the Company, you shall have seven calendar days to consider whether to revoke it\n(the “Revocation Period”). If you choose to revoke this Agreement, you must do so by serving written notice to Pier 1 Services Company by\nfacsimile at 817-\n334-0191, Attn: Legal Department, before the expiration of the Revocation Period and obtain written confirmation of delivery. You acknowledge that this Agreement shall become effective, fully enforceable and irrevocable upon the expiration of the seven-day period following your signing of this Agreement. This Agreement shall be null and void if: (i) you fail to execute and return the original of this Agreement on or prior to the Due Date; or (ii) you sign it within 21 days, but revoke your execution within seven calendar days after signing it. IN WITNESS WHEREOQF, this Confidential Retirement Agreement and General Release has been executed by each of the listed parties below.\nEMPLOYEE:\nPrinted Name: Charles H. Turner\nSignature: /s/ Charles H. Turner\nDate: March 1, 2015\nAddress: 4612 Lakeside Drive\nColleyville, TX\nPIER 1 SERVICES COMPANY,\na Delaware statutory trust\nBy: Pier 1 Holdings, Inc., a Delaware corporation,\nIts managing trustee\nBy: /s/ Michael A. Carter\nMichael A. Carter\nSR VP Compliance and General Counsel\nPIER 1 IMPORTS, INC.\nBy: /s/ Alexander W. Smith\nAlexander W. Smith, President and CEO\nDate: March 16, 2015\nAddress: 100 Pier 1 Place, Fort Worth TX 76102\nAttn: Michael A. Carter, General Counsel	EX-10.21 2 d881010dex1021.htm EX-10.21\nExhibit 10.21\nCONFIDENTIAL RETIREMENT AGREEMENT AND GENERAL RELEASE\nThis Confidential Retirement Agreement and General Release ("Agreement"), entered into by and between Charles H. Turner ("you" or the\n"Employee"), Pier 1 Services Company ("Company") and Pier 1 Imports, Inc. ("Parent") (collectively, the "Parties") as of the Effective Date (as\ndefined below), arises from your retirement and the associated termination of your employment relationship with the Company. Company,\nParent, their subsidiaries and affiliates are together sometimes referred to herein as "Pier 1."\nThis Agreement is legally-binding. You are hereby advised to consult with an attorney before signing it.\nYou acknowledge that your retirement from the Company and the associated termination of your employment is effective February 10,\n2015 (the "Effective Date"). The Company has offered you the payments and other benefits described in Section 1 below in conjunction with\nyour retirement. You agree that you are not entitled to any payment provided for in this Agreement unless you execute this Agreement by signing\nthe signature line at the conclusion of this Agreement, and do not revoke it during the revocation period described below. You acknowledge that\nas\nof\nthe\nEffective\nDate\nyou\nhave\nresigned\nfrom\nall\npositions\nas\nan\nofficer,\ndirector\nor\ntrustee\nof\nPier\n1\nand\nwith\nrespect\nto\nany\nemployee\nbenefit\nplan or other arrangement or accommodation of Pier 1 as to which you have been designated as an officer, director, agent, trustee or other\ncapacity.\n1. Retirement Benefits. In consideration for the promises, covenants and releases contained in this Agreement you will receive a lump-\nsum payment from Company in the amount of $1,083,293.00, subject to applicable taxes and related withholdings. This payment shall be paid\nwithin six business days following the expiration of the Revocation Period, defined herein, provided you have executed and delivered this\nAgreement to the Company in the manner set forth herein without revoking the Agreement. In the event that you revoke this Agreement, you will\nbe ineligible for any payment provided for herein. You acknowledge that this payment is in addition to any monies or benefits to which you\nare\nalready otherwise entitled under the plans and arrangements described on Annex A to this Agreement (the "Other Retirement Benefits") and that\nthe payment represents good and sufficient consideration for your promises, covenants and releases set forth in this Agreement.\n2. General Release. In consideration for the payment described in Section 1 above, to which you are otherwise not entitled, you on\nbehalf of yourself, your family, assigns, representatives, agents, estate, heirs, beneficiaries, executors, administrators, successors, and/or\nattorneys, if any waive and release Company, Parent, their affiliates and subsidiaries, and all of their current and former respective officers,\ndirectors, employees, stockholders, representatives and agents, including their successors and assigns (collectively the "Releasees"), with respect\nto any and all claims, losses, liabilities, obligations and causes of action, known and unknown, arising out of, connected with, or relating to:\n(i) your employment; (ii) the Releasees' refusal or failure to continue your employment; or (iii) the termination of your employment, including,\nbut not limited to, claims for compensation, commissions, bonuses, stock options, other wages and benefits, breach of contract, wrongful\ntermination, impairment of economic opportunity, intentional infliction of emotional distress, claims based on persona injury, work-related\naccident, any breach of implied or express covenant of good faith and fair dealing, violation of public policy, or any other contract, tort or\npersonal injury claim, or claim based on any municipal, state or federal statute, regulation or ordinance relating to employment, employment\ndiscrimination or retaliation, including but not limited to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. S 2000 et seq.; The\nCivil Rights Act of 1866, as amended, 42 U.S.C. 8 1981; The Civil Rights Act of 1991, as amended, 42 U.S.C. 8 1981a; The Age\nDiscrimination in Employment Act of 1967, as amended, 29 U.S.C. S 621 et seq.; Americans With Disabilities Act, as amended, 42 U.S.C.\nS\n12101 et seq.; Fair Labor\nStandards Act, as amended, 29 U.S.C. 8 201, et seq.; Equal Pay Act, as amended, 29 U.S.C. 8 201 et seq.; National Labor Relations Act, as\namended, 29 U.S.C. S 151 et seq.; Worker Adjustment and Retraining Notification Act, as amended, 29 U.S.C. 8 2101 et seq., Employee\nRetirement Income Security Act, as amended, 29 U.S.C. 8 1000 et seq.; Family and Medical Leave Act, as amended, 29 U.S.C. 2601, et seq.;\nChapter 21 of the Texas Labor Code or any other statute, rule, regulation, ordinance, or common civil or other law, or judicial or administrative\ninterpretation whether promulgated by Federal, State, local or other jurisdiction or political subdivision. This Agreement extinguishes any\npotential monetary recovery from employment discrimination claims you may have relating to your employment with the Company and the\ntermination of your employment existing on the Effective Date of this Agreement.\nNothing in this Agreement will prevent you from initiating or participating in any State or Federal agency administrative proceeding\nincluding proceedings before the Equal Employment Opportunity Commission or from testifying at an administrative hearing, deposition, or in\ncourt in response to a lawful subpoena.\nThis Agreement does not release or terminate any of your rights pursuant to the Indemnification Agreement dated January 18, 2011,\nbetween you and Parent (the "Indemnification Agreement"), or the Other Retirement Benefits, which shall continue in full force and effect in\naccordance with their respective terms. This Agreement does not release or waive your rights as an employee to (i) any vested benefits under a\nbenefit plan which by its terms specifically provides for the vesting of benefits prior to or upon the Effective Date, (ii) convert any insured\nbenefits under an employee benefit plan to the extent the plan allows conversion, or (iii) maintain your medical insurance in force as provided by\nthe Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA).\n3. Non-Assignment. You represent and warrant that you have not assigned to any third party any claim involving the Releasees or\nauthorized any third party to assert on your behalf any claim against the Releasees. If a third party asserts a claim against the Releasees on your\nbehalf or includes you as a class member in any class action involving any claim released under this Agreement, you shall not accept any benefits\nor damages relating or arising out of such claim.\n4. Return of Property. You represent and warrant that you have returned all property, equipment, documents and other tangible things,\nincluding keys, cell phones, pagers, corporate credit cards, and laptops or other computers of Pier 1 - except for documents reflecting your\ncompensation and benefits (Other Retirement Benefits) while employed by Pier 1 - in accordance with Company's policies and rules, effective\non your last day of work with the Company, or if you failed to do so, you agree to do so immediately upon finding any such items in your\npossession. You represent and warrant that you have not, and you agree that in the future you shall not, destroy, alter, erase, or otherwise change\nany software, data, or other information belonging to Company. Further, you hereby consent to pay Company the value of any property,\nequipment and tangible things that you fail to return in accordance with this Agreement and any monies you owe Pier 1, up to the maximum\namount allowed by law.\n5. Confidentiality. You agree that the terms of this Agreement shall be confidential. You shall not disclose the terms to anyone other than\nyour spouse, attorney, accountant, financial planner, or tax advisor, without Company's prior written approval, except as may be required by law\nand/or court order. You shall not disclose the terms of this Agreement to your spouse, attorney, accountant, financial planner, or tax advisor\nunless the receiving party agrees to abide by the confidentiality provisions of this Agreement, and you agree to be responsible for any breach of\nconfidentiality by your spouse, attorney, accountant, financial planner and/or tax advisor. If you receive a request pursuant to applicable law\nto\ndisclose the existence or terms of this Agreement, you shall promptly notify Company's Legal Department to enable Company to seek a\nprotective order or other appropriate remedy prior to any disclosure made by you.\n6. Confidential Information and Trade Secrets. You acknowledge that during your employment with Company, you have been given\naccess to and use of trade secrets, proprietary data, or other confidential information, which were developed at considerable effort and expense,\nand which if acquired by competitors of Pier 1 would give them an unfair business advantage. You understand and agree that this information,\nif\nused by or disclosed to anyone but Pier 1 and its employees with a need to know, will place Pier 1 at a competitive disadvantage You further\nacknowledge that you have not used or disclosed such trade secrets, proprietary data, or other confidential information during your employment\nwith Company, except as authorized in writing by Company or in the normal exercise of your job duties for the benefit of Pier 1.\nIn further consideration for the above-recited covenants, promises and statements of understanding between the parties, including the\npayment described in Section 1 of this Agreement, to which you are otherwise not entitled, you agree that you shall not, without the prior express\nwritten consent of the Company, directly or indirectly communicate or disclose, or use for your benefit or the benefit of any other person, firm,\nassociation, or corporation, any of the Releasees' trade secrets, proprietary data or other confidential information, which trade secrets, proprietary\ndata and other confidential information were communicated to or otherwise learned or acquired by you during your employment relationship\nwith the Company, except that you may disclose such matters to the extent that disclosure is required (a) at the Company's direction or (b) by a\nlawful order of a court or other governmental agency of competent jurisdiction. For so long as such matters remain trade secrets, proprietary data,\nor other confidential information, you agree that you will not use such trade secrets, proprietary data, or other confidential information in any\nway or in any capacity other than as expressly consented to by the Company.\nNothing in the above paragraph shall be construed to restrict you from using your general knowledge, skills, and experience acquired\nduring your employment with the Company in future employment whether or not such employment is with a direct competitor of Pier 1.\nSuch trade secrets, proprietary data, or other confidential information include, but are not limited to, the following: information concerning\nstrategic marketing plans or product development plans; cost or pricing information; vendor or supplier information; business plans or methods;\ncustomer lists or data; information regarding proposed joint ventures, mergers, acquisitions, and other such anticipated or contemplated business\nventures of Pier 1; projects, whether completed, in progress, or only contemplated; real estate plans and strategy; investment opportunities and\nother information related to investments of Pier 1, whether past, present or future; confidential financial information; financial planning and\nanalysis modeling and methodology; intellectual property; financial accounting and reporting; tax planning and strategy; personnel\ninformation;\nideas; discoveries; designs; inventions; improvements; know-how; writings and other works of authorship; computer programs; accounting\ninformation; lists; analyses; studies; technology; programs; flow charts; information regarding products or techniques; strategies; or, any other\nbusiness information that relates in any manner to the actual or anticipated business of Pier 1, and which they have not intentionally disclosed to\nits competitors or to the general public.\nThe obligations set forth herein shall be in addition to any other confidentiality obligations that you may have to any of the Releasees.\nYou further acknowledge that the injury the Releasees will suffer in the event of your breach of any covenant or agreement set forth\nin\nSections 5, 6, 7, 8 or 9 herein cannot be compensated by monetary damages alone, and you therefore agree that the Releasees, in addition to and\nwithout limiting any other remedies or otherwise, shall have the right to obtain an injunction against you.\n7. Nondisparagement. You shall not make any untrue, misleading, or disparaging statements, or comments concerning the Releasees.\nDuring their tenure, the current Executive Officers and members of the Board of Directors of Parent shall not make any untrue, misleading,\nor\ndisparaging public statements or comments about you. The Parties agree that the commitments in this paragraph will not limit or prohibit them\nfrom testifying truthfully, or providing truthful information in connection with any pending or threatened legal proceeding or to any\ngovernmental agency or as otherwise required by law.\n8. Nonsolicitation. For a period of one year beginning on the day following the Effective Date, you shall not under any circumstances\nemploy, solicit the employment of, or accept the services of, any "protected person" or recommend the employment of any "protected person"\nto\nany other business organization. A "protected person" is a person known by you to be employed by Pier 1 or to have been employed by Pier 1\nwithin six months prior to the commencement of conversations with such person with respect to employment. The term "subsidiary." as used in\nthis Agreement means a corporation or other entity more than 50 percent of whose outstanding securities or interests representing the right, other\nthan as affected by events of default, to vote for the election of directors or otherwise select a similar governing body is owned by Pier 1.\nAs to (i) each "protected person" to whom the foregoing applies, (ii) each limitation on (A) employment, (B) solicitation and\n(C) acceptance of services, of each "protected person" and (iii) each month of the period during which the provisions of this Section 8 apply\nto\neach of the foregoing, the provisions set forth in this Section 8 are deemed to be separate and independent agreements and in the event of\nunenforceability of any such agreement, such unenforceable agreement shall be deemed automatically deleted from the provisions hereof and\nsuch deletion shall not affect the enforceability of any other provision of this Section 8 or any other term of this Agreement.\n9. Cooperation. You agree to cooperate with Pier 1 at such reasonable times and places as may be reasonably requested, and to provide all\ninformation that may be reasonably requested with respect to any matter involving your present or former relationship with Pier 1, the work you\nhave performed for Pier 1, or present or former employees, so long as such requests do not unreasonably interfere with any other job or\nsignificant personal activity in which you are engaged. This specifically includes your assistance in regulatory inquiries, investigations and\nlitigation matters, including depositions and/or court appearances in connection therewith, which may include appearances in other states. Pier\n1\nwill make every effort to schedule these matters at times and locations convenient for you should they arise. The Company will reimburse you\nfor reasonable expenses, such as telephone, travel, lodging, and meal expenses, you incur at the request of Pier 1, consistent with the Company's\ngenerally applicable policies for employee expenses.\n10. No Authority. As of your last day of employment with Company, you shall have no authority to obligate Pier 1 in any manner, and\nshall not enter into, or attempt to enter into, any contracts on their behalf. You shall not make any representation, warranty, or other statement, or\ntake any action, that may be construed by a third party to indicate that you have authority to obligate Pier 1 or to enter into a contract on any of\ntheir behalf.\n11. No Admission of Wrongdoing. This Agreement shall not in any way be construed as an admission of liability or as an admission that\nany of the Releasees or you have acted wrongfully with respect to each other. Each of the Releasees and you specifically deny and disclaim any\nsuch liability or wrongful acts.\n12. Venue and Applicable Law. This Agreement shall be performed in Fort Worth, Texas, and the laws of the State of Texas shall govern\nthe enforceability, interpretation and legal effect of this\nAgreement. The parties shall submit to the jurisdiction of the federal and state courts sitting in Tarrant County, Texas, for all purposes relating\nto\nthe validity, interpretation or enforcement of this Agreement, including, without limitation, any application for injunctive relief.\n13. Remedies. Any material breach by you of the terms and conditions contained in this Agreement shall give Company the right to\ndiscontinue the performance of any unperformed duties and obligations under this Agreement to the extent permitted by applicable law, and shall\nentitle Pier 1 to legal, injunctive, or other equitable relief on account of such breach.\n14. Entire Agreement. This Agreement together with the agreements and plans described on Annex A to this Agreement constitute our\nentire agreement and supersedes any prior agreements or understandings between Company, Parent and you with respect to the subject matter\nherein, except for any confidentiality obligations referred to elsewhere herein. You acknowledge that you enter into this Agreement without\nreliance on any written or oral promise or representation, other than those contained in this Agreement.\n15. Severability. If any provision of this Agreement shall be determined by a court to be void or unenforceable, the remaining provisions\nshall remain effective and legally binding, and the void or unenforceable term shall be deemed not to be a part of this Agreement.\n16. Headings. The headings in each Section herein are for convenience of reference only and shall be of no legal effect in the interpretation\nof the terms hereof.\n17. Waiver. If you breach any term of the Agreement, any delay by Pier 1 in enforcing the Agreement shall not be deemed a waiver or\nacceptance. No waiver shall bind Pier 1 unless supported by consideration, executed in writing by the party to be bound, and delivered to you by\nan authorized officer or agent.\n18. Attorneys' Fees. In any dispute between Company or Parent and you regarding the terms of this Agreement and/or any alleged breach\nthereof, the prevailing party shall be entitled to recover its costs and reasonable attorneys' fees arising out of such dispute, provided that such\nrecovery is not otherwise prohibited by law.\n19. Knowing and Voluntary. Agreement. You are advised in writing to consult with an attorney before executing this Agreement.\nYou acknowledge and agree that: (i) after you received a copy of this Agreement in writing you had adequate opportunity to review this\nAgreement; (ii) you fully understand its contents; (iii) you have been advised to consult an attorney. before signing it; and (iv) you enter\ninto this Agreement knowingly, voluntarily and after any consultations with your attorney or other advisor, as you deem appropriate.\n20. Review Period, Execution and Revocation. In order to be eligible for the payment described in Section 1 above, you must sign and\nreturn the original of this Agreement by 5:00 p.m., on March13, 2015 (the "Due Date") to Michael A. Carter at the offices of the Company.\nYou acknowledge that you will have had at least 21 calendar days from your receipt of this Agreement on February 20, 2015 to consider\nwhether to accept its terms. Any changes to this Agreement, whether material or immaterial, shall not restart the running of the 21-day period.\nAfter signing the Agreement and properly returning it to the Company, you shall have seven calendar days to consider whether to revoke\nit\n(the "Revocation Period"). If you choose to revoke this Agreement, you must do so by serving written notice to Pier 1 Services Company by\nfacsimile at 817-\n334-0191, Attn: Legal Department, before the expiration of the Revocation Period and obtain written confirmation of delivery. You acknowledge\nthat this Agreement shall become effective, fully enforceable and irrevocable upon the expiration of the seven-day period following your signing\nof this Agreement. This Agreement shall be null and void if: (i) you fail to execute and return the original of this Agreement on or prior to the\nDue Date; or (ii) you sign it within 21 days, but revoke your execution within seven calendar days after signing it.\nIN\nWITNESS WHEREOF, this Confidential Retirement Agreement and General Release has been executed\nby each of the listed parties below.\nEMPLOYEE:\nPIER 1 SERVICES COMPANY,\na Delaware statutory trust\nPrinted Name: Charles H. Turner\nBy:\nPier 1 Holdings, Inc., a Delaware corporation,\nIts managing trustee\nSignature:\n/s/ Charles H. Turner\nBy:\n/s/ Michael A. Carter\nDate:\nMarch 1, 2015\nMichael A. Carter\nAddress:\n4612 Lakeside Drive\nSR VP Compliance and General Counsel\nColleyville, TX\nPIER 1 IMPORTS, INC.\nBy:\n/s/ Alexander W. Smith\nAlexander W. Smith, President and CEO\nDate:\nMarch 16, 2015\nAddress: 100 Pier 1 Place, Fort Worth TX 76102\nAttn:\nMichael A. Carter, General Counsel	EX-10.21 2 d881010dex1021.htm EX-10.21\nExhibit 10.21\nCONFIDENTIAL RETIREMENT AGREEMENT AND GENERAL RELEASE\nThis Confidential Retirement Agreement and General Release (“Agreement”), entered into by and between Charles H. Turner (“you” or the\n“Employee”), Pier 1 Services Company (“Company”) and Pier 1 Imports, Inc. (“Parent”) (collectively, the “Parties”) as of the Effective Date (as\ndefined below), arises from your retirement and the associated termination of your employment relationship with the Company. Company,\nParent, their subsidiaries and affiliates are together sometimes referred to herein as “Pier 1.”\nThis Agreement is legally-binding. You are hereby advised to consult with an attorney before signing it.\nYou acknowledge that your retirement from the Company and the associated termination of your employment is effective February 10,\n2015 (the “Effective Date”). The Company has offered you the payments and other benefits described in Section 1 below in conjunction with\nyour retirement. You agree that you are not entitled to any payment provided for in this Agreement unless you execute this Agreement by signing\nthe signature line at the conclusion of this Agreement, and do not revoke it during the revocation period described below. You acknowledge that\nas of the Effective Date you have resigned from all positions as an officer, director or trustee of Pier 1 and with respect to any employee benefit\nplan or other arrangement or accommodation of Pier 1 as to which you have been designated as an officer, director, agent, trustee or other\ncapacity.\n1. Retirement Benefits. In consideration for the promises, covenants and releases contained in this Agreement you will receive a lump-\nsum payment from Company in the amount of $1,083,293.00, subject to applicable taxes and related withholdings. This payment shall be paid\nwithin six business days following the expiration of the Revocation Period, defined herein, provided you have executed and delivered this\nAgreement to the Company in the manner set forth herein without revoking the Agreement. In the event that you revoke this Agreement, you will\nbe ineligible for any payment provided for herein. You acknowledge that this payment is in addition to any monies or benefits to which you are\nalready otherwise entitled under the plans and arrangements described on Annex A to this Agreement (the “Other Retirement Benefits”) and that\nthe payment represents good and sufficient consideration for your promises, covenants and releases set forth in this Agreement.\n2. General Release. In consideration for the payment described in Section 1 above, to which you are otherwise not entitled, you – on\nbehalf of yourself, your family, assigns, representatives, agents, estate, heirs, beneficiaries, executors, administrators, successors, and/or\nattorneys, if any — waive and release Company, Parent, their affiliates and subsidiaries, and all of their current and former respective officers,\ndirectors, employees, stockholders, representatives and agents, including their successors and assigns (collectively the “Releasees”), with respect\nto any and all claims, losses, liabilities, obligations and causes of action, known and unknown, arising out of, connected with, or relating to:\n(i) your employment; (ii) the Releasees’ refusal or failure to continue your employment; or (iii) the termination of your employment, including,\nbut not limited to, claims for compensation, commissions, bonuses, stock options, other wages and benefits, breach of contract, wrongful\ntermination, impairment of economic opportunity, intentional infliction of emotional distress, claims based on personal injury, work-related\naccident, any breach of implied or express covenant of good faith and fair dealing, violation of public policy, or any other contract, tort or\npersonal injury claim, or claim based on any municipal, state or federal statute, regulation or ordinance relating to employment, employment\ndiscrimination or retaliation, including but not limited to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq.; The\nCivil Rights Act of 1866, as amended, 42 U.S .C . § 1981; The Civil Rights Act of 1991, as amended, 42 U.S.C . § 1981a; The Age\nDiscrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.; Americans With Disabilities Act, as amended, 42 U.S.C . §\n12101 et seq.; Fair Labor\nStandards Act, as amended, 29 U.S.C . § 201, et seq.; Equal Pay Act, as amended, 29 U.S.C. § 201 et seq.; National Labor Relations Act, as\namended, 29 U.S .C . § 151 et seq.; Worker Adjustment and Retraining Notification Act, as amended, 29 U.S.C . § 2101 et seq., Employee\nRetirement Income Security Act, as amended, 29 U.S.C . § 1000 et seq.; Family and Medical Leave Act, as amended, 29 U.S .C . § 2601, et seq.;\nChapter 21 of the Texas Labor Code or any other statute, rule, regulation, ordinance, or common civil or other law, or judicial or administrative\ninterpretation whether promulgated by Federal, State, local or other jurisdiction or political subdivision. This Agreement extinguishes any\npotential monetary recovery from employment discrimination claims you may have relating to your employment with the Company and the\ntermination of your employment existing on the Effective Date of this Agreement.\nNothing in this Agreement will prevent you from initiating or participating in any State or Federal agency administrative proceeding\nincluding proceedings before the Equal Employment Opportunity Commission or from testifying at an administrative hearing, deposition, or in\ncourt in response to a lawful subpoena.\nThis Agreement does not release or terminate any of your rights pursuant to the Indemnification Agreement dated January 18, 2011,\nbetween you and Parent (the “Indemnification Agreement”), or the Other Retirement Benefits, which shall continue in full force and effect in\naccordance with their respective terms. This Agreement does not release or waive your rights as an employee to (i) any vested benefits under a\nbenefit plan which by its terms specifically provides for the vesting of benefits prior to or upon the Effective Date, (ii) convert any insured\nbenefits under an employee benefit plan to the extent the plan allows conversion, or (iii) maintain your medical insurance in force as provided by\nthe Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA).\n3. Non-Assignment. You represent and warrant that you have not assigned to any third party any claim involving the Releasees or\nauthorized any third party to assert on your behalf any claim against the Releasees. If a third party asserts a claim against the Releasees on your\nbehalf or includes you as a class member in any class action involving any claim released under this Agreement, you shall not accept any benefits\nor damages relating or arising out of such claim.\n4. Return of Property. You represent and warrant that you have returned all property, equipment, documents and other tangible things,\nincluding keys, cell phones, pagers, corporate credit cards, and laptops or other computers of Pier 1 — except for documents reflecting your\ncompensation and benefits (Other Retirement Benefits) while employed by Pier 1 — in accordance with Company’s policies and rules, effective\non your last day of work with the Company, or if you failed to do so, you agree to do so immediately upon finding any such items in your\npossession. You represent and warrant that you have not, and you agree that in the future you shall not, destroy, alter, erase, or otherwise change\nany software, data, or other information belonging to Company. Further, you hereby consent to pay Company the value of any property,\nequipment and tangible things that you fail to return in accordance with this Agreement and any monies you owe Pier 1, up to the maximum\namount allowed by law.\n5. Confidentiality. You agree that the terms of this Agreement shall be confidential. You shall not disclose the terms to anyone other than\nyour spouse, attorney, accountant, financial planner, or tax advisor, without Company’s prior written approval, except as may be required by law\nand/or court order. You shall not disclose the terms of this Agreement to your spouse, attorney, accountant, financial planner, or tax advisor\nunless the receiving party agrees to abide by the confidentiality provisions of this Agreement, and you agree to be responsible for any breach of\nconfidentiality by your spouse, attorney, accountant, financial planner and/or tax advisor. If you receive a request pursuant to applicable law to\ndisclose the existence or terms of this Agreement, you shall promptly notify Company’s Legal Department to enable Company to seek a\nprotective order or other appropriate remedy prior to any disclosure made by you.\n6. Confidential Information and Trade Secrets. You acknowledge that during your employment with Company, you have been given\naccess to and use of trade secrets, proprietary data, or other confidential information, which were developed at considerable effort and expense,\nand which if acquired by competitors of Pier 1 would give them an unfair business advantage. You understand and agree that this information, if\nused by or disclosed to anyone but Pier 1 and its employees with a need to know, will place Pier 1 at a competitive disadvantage. You further\nacknowledge that you have not used or disclosed such trade secrets, proprietary data, or other confidential information during your employment\nwith Company, except as authorized in writing by Company or in the normal exercise of your job duties for the benefit of Pier 1.\nIn further consideration for the above-recited covenants, promises and statements of understanding between the parties, including the\npayment described in Section 1 of this Agreement, to which you are otherwise not entitled, you agree that you shall not, without the prior express\nwritten consent of the Company, directly or indirectly communicate or disclose, or use for your benefit or the benefit of any other person, firm,\nassociation, or corporation, any of the Releasees’ trade secrets, proprietary data or other confidential information, which trade secrets, proprietary\ndata and other confidential information were communicated to or otherwise learned or acquired by you during your employment relationship\nwith the Company, except that you may disclose such matters to the extent that disclosure is required (a) at the Company’s direction or (b) by a\nlawful order of a court or other governmental agency of competent jurisdiction. For so long as such matters remain trade secrets, proprietary data,\nor other confidential information, you agree that you will not use such trade secrets, proprietary data, or other confidential information in any\nway or in any capacity other than as expressly consented to by the Company.\nNothing in the above paragraph shall be construed to restrict you from using your general knowledge, skills, and experience acquired\nduring your employment with the Company in future employment whether or not such employment is with a direct competitor of Pier 1.\nSuch trade secrets, proprietary data, or other confidential information include, but are not limited to, the following: information concerning\nstrategic marketing plans or product development plans; cost or pricing information; vendor or supplier information; business plans or methods;\ncustomer lists or data; information regarding proposed joint ventures, mergers, acquisitions, and other such anticipated or contemplated business\nventures of Pier 1; projects, whether completed, in progress, or only contemplated; real estate plans and strategy; investment opportunities and\nother information related to investments of Pier 1, whether past, present or future; confidential financial information; financial planning and\nanalysis modeling and methodology; intellectual property; financial accounting and reporting; tax planning and strategy; personnel information;\nideas; discoveries; designs; inventions; improvements; know-how; writings and other works of authorship; computer programs; accounting\ninformation; lists; analyses; studies; technology; programs; flow charts; information regarding products or techniques; strategies; or, any other\nbusiness information that relates in any manner to the actual or anticipated business of Pier 1, and which they have not intentionally disclosed to\nits competitors or to the general public.\nThe obligations set forth herein shall be in addition to any other confidentiality obligations that you may have to any of the Releasees.\nYou further acknowledge that the injury the Releasees will suffer in the event of your breach of any covenant or agreement set forth in\nSections 5, 6, 7, 8 or 9 herein cannot be compensated by monetary damages alone, and you therefore agree that the Releasees, in addition to and\nwithout limiting any other remedies or otherwise, shall have the right to obtain an injunction against you.\n7. Nondisparagement. You shall not make any untrue, misleading, or disparaging statements, or comments concerning the Releasees.\nDuring their tenure, the current Executive Officers and members of the Board of Directors of Parent shall not make any untrue, misleading, or\ndisparaging public statements or comments about you. The Parties agree that the commitments in this paragraph will not limit or prohibit them\nfrom testifying truthfully, or providing truthful information in connection with any pending or threatened legal proceeding or to any\ngovernmental agency or as otherwise required by law.\n8. Nonsolicitation. For a period of one year beginning on the day following the Effective Date, you shall not under any circumstances\nemploy, solicit the employment of, or accept the services of, any “protected person” or recommend the employment of any “protected person” to\nany other business organization. A “protected person” is a person known by you to be employed by Pier 1 or to have been employed by Pier 1\nwithin six months prior to the commencement of conversations with such person with respect to employment. The term “subsidiary” as used in\nthis Agreement means a corporation or other entity more than 50 percent of whose outstanding securities or interests representing the right, other\nthan as affected by events of default, to vote for the election of directors or otherwise select a similar governing body is owned by Pier 1.\nAs to (i) each “protected person” to whom the foregoing applies, (ii) each limitation on (A) employment, (B) solicitation and\n(C) acceptance of services, of each “protected person” and (iii) each month of the period during which the provisions of this Section 8 apply to\neach of the foregoing, the provisions set forth in this Section 8 are deemed to be separate and independent agreements and in the event of\nunenforceability of any such agreement, such unenforceable agreement shall be deemed automatically deleted from the provisions hereof and\nsuch deletion shall not affect the enforceability of any other provision of this Section 8 or any other term of this Agreement.\n9. Cooperation. You agree to cooperate with Pier 1 at such reasonable times and places as may be reasonably requested, and to provide all\ninformation that may be reasonably requested with respect to any matter involving your present or former relationship with Pier 1, the work you\nhave performed for Pier 1, or present or former employees, so long as such requests do not unreasonably interfere with any other job or\nsignificant personal activity in which you are engaged. This specifically includes your assistance in regulatory inquiries, investigations and\nlitigation matters, including depositions and/or court appearances in connection therewith, which may include appearances in other states. Pier 1\nwill make every effort to schedule these matters at times and locations convenient for you should they arise. The Company will reimburse you\nfor reasonable expenses, such as telephone, travel, lodging, and meal expenses, you incur at the request of Pier 1, consistent with the Company’s\ngenerally applicable policies for employee expenses.\n10. No Authority. As of your last day of employment with Company, you shall have no authority to obligate Pier 1 in any manner, and\nshall not enter into, or attempt to enter into, any contracts on their behalf. You shall not make any representation, warranty, or other statement, or\ntake any action, that may be construed by a third party to indicate that you have authority to obligate Pier 1 or to enter into a contract on any of\ntheir behalf.\n11. No Admission of Wrongdoing. This Agreement shall not in any way be construed as an admission of liability or as an admission that\nany of the Releasees or you have acted wrongfully with respect to each other. Each of the Releasees and you specifically deny and disclaim any\nsuch liability or wrongful acts.\n12. Venue and Applicable Law. This Agreement shall be performed in Fort Worth, Texas, and the laws of the State of Texas shall govern\nthe enforceability, interpretation and legal effect of this\nAgreement. The parties shall submit to the jurisdiction of the federal and state courts sitting in Tarrant County, Texas, for all purposes relating to\nthe validity, interpretation or enforcement of this Agreement, including, without limitation, any application for injunctive relief.\n13. Remedies. Any material breach by you of the terms and conditions contained in this Agreement shall give Company the right to\ndiscontinue the performance of any unperformed duties and obligations under this Agreement to the extent permitted by applicable law, and shall\nentitle Pier 1 to legal, injunctive, or other equitable relief on account of such breach.\n14. Entire Agreement. This Agreement together with the agreements and plans described on Annex A to this Agreement constitute our\nentire agreement and supersedes any prior agreements or understandings between Company, Parent and you with respect to the subject matter\nherein, except for any confidentiality obligations referred to elsewhere herein. You acknowledge that you enter into this Agreement without\nreliance on any written or oral promise or representation, other than those contained in this Agreement.\n15. Severability. If any provision of this Agreement shall be determined by a court to be void or unenforceable, the remaining provisions\nshall remain effective and legally binding, and the void or unenforceable term shall be deemed not to be a part of this Agreement.\n16. Headings. The headings in each Section herein are for convenience of reference only and shall be of no legal effect in the interpretation\nof the terms hereof.\n17. Waiver. If you breach any term of the Agreement, any delay by Pier 1 in enforcing the Agreement shall not be deemed a waiver or\nacceptance. No waiver shall bind Pier 1 unless supported by consideration, executed in writing by the party to be bound, and delivered to you by\nan authorized officer or agent.\n18. Attorneys’ Fees. In any dispute between Company or Parent and you regarding the terms of this Agreement and/or any alleged breach\nthereof, the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees arising out of such dispute, provided that such\nrecovery is not otherwise prohibited by law.\n19. Knowing and Voluntary Agreement. You are advised in writing to consult with an attorney before executing this Agreement.\nYou acknowledge and agree that: (i) after you received a copy of this Agreement in writing you had adequate opportunity to review this\nAgreement; (ii) you fully understand its contents; (iii) you have been advised to consult an attorney before signing it; and (iv) you enter\ninto this Agreement knowingly, voluntarily and after any consultations with your attorney or other advisor, as you deem appropriate.\n20. Review Period, Execution and Revocation. In order to be eligible for the payment described in Section 1 above, you must sign and\nreturn the original of this Agreement by 5:00 p.m., on March13, 2015 (the “Due Date”) to Michael A. Carter at the offices of the Company.\nYou acknowledge that you will have had at least 21 calendar days from your receipt of this Agreement on February 20, 2015 to consider\nwhether to accept its terms. Any changes to this Agreement, whether material or immaterial, shall not restart the running of the 21-day period.\nAfter signing the Agreement and properly returning it to the Company, you shall have seven calendar days to consider whether to revoke it\n(the “Revocation Period”). If you choose to revoke this Agreement, you must do so by serving written notice to Pier 1 Services Company by\nfacsimile at 817-\n334-0191, Attn: Legal Department, before the expiration of the Revocation Period and obtain written confirmation of delivery. You acknowledge\nthat this Agreement shall become effective, fully enforceable and irrevocable upon the expiration of the seven-day period following your signing\nof this Agreement. This Agreement shall be null and void if: (i) you fail to execute and return the original of this Agreement on or prior to the\nDue Date; or (ii) you sign it within 21 days, but revoke your execution within seven calendar days after signing it.\nIN WITNESS WHEREOF, this Confidential Retirement Agreement and General Release has been executed\nby each of the listed parties below.\nEMPLOYEE:\nPIER 1 SERVICES COMPANY,\na Delaware statutory trust\nPrinted Name: Charles H. Turner\nBy:\nPier 1 Holdings, Inc., a Delaware corporation,\nIts managing trustee\nSignature:\n/s/ Charles H. Turner\nBy:\n/s/ Michael A. Carter\nDate:\nMarch 1, 2015\nMichael A. Carter\nAddress:\n4612 Lakeside Drive\nSR VP Compliance and General Counsel\nColleyville, TX\nPIER 1 IMPORTS, INC.\nBy:\n/s/ Alexander W. Smith\nAlexander W. Smith, President and CEO\nDate:\nMarch 16, 2015\nAddress: 100 Pier 1 Place, Fort Worth TX 76102\nAttn:\nMichael A. Carter, General Counsel
+2accf8fc15a4dbb428cf704ce263bf8e.pdf	effective_date jurisdiction party term	EX-10.43 5 d269066dex1043.htm 2012 CONFIDENTIALITY, NON-SOLICITATION AND PROPRIETARY\nINFORMATION AGREEMENT\nExhibit 10.43\nConfidentiality, Non-Solicitation and Proprietary Information Agreement\n(Senior Managing Director)\nThis Confidentiality, Non-Solicitation and Proprietary Information Agreement (the “Agreement”), is made as of the day of\n,\n2012, between Evercore Partners Services East L.L .C. (the “Company”), and the employee signatory hereto (the “Employee”).\nRECITALS:\nWHEREAS, Employee acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates\n(collectively, “Evercore”);\nWHEREAS, Employee acknowledges that he/she will be provided with access to sensitive, proprietary and confidential information of\nEvercore and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other agents of\nEvercore, which, in each case, Employee acknowledges and agrees constitute valuable assets of Evercore; and\nWHEREAS, Employee agrees to be subject to the restrictive covenants as set forth in this Agreement.\nNOW THEREFORE, for good and valuable consideration the parties agree as follows:\n1. Confidentiality.\n(a) Employee will not at any time (whether during or after Employee’s employment with Evercore), other than in the ordinary course of\nperforming services for Evercore, (x) retain or use for the benefit, purposes or account of Employee or any other person, firm, partnership, joint\nventure, association, corporation or other business organization, entity or enterprise whatsoever (“Person”); or (y) disclose, divulge, reveal,\ncommunicate, share, transfer or provide access to any Person outside Evercore (other than its professional advisers who are bound by confidentiality\nobligations), any non-public, proprietary or confidential information obtained by Employee in connection with the commencement of Employee’s\nemployment with Evercore or at any time thereafter during the course of Employee’s employment with Evercore—including without limitation trade\nsecrets, know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual\nproperty, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors,\npersonnel, compensation (excluding Employees’ own compensation), recruiting, training, advertising, sales, marketing, promotions, government and\nregulatory activities and approvals—concerning the past, current or future business activities and operations of Evercore and/or any third party that\nhas disclosed or provided any of the same to Evercore on a confidential basis (provided that with respect to such third party, Employee knows or\nreasonably should have known that the third party provided it to Evercore on a confidential basis) (“Confidential Information”) without the prior\nwritten authorization of the Chief Executive Officer of Evercore Partners Inc.; provided, however, that in any event Employee shall be permitted to\ndisclose any Confidential Information reasonably necessary (i) to perform Employee’s duties while employed with Evercore or (ii) in connection\nwith any litigation or arbitration involving this or any other agreement entered into between Employee and Evercore before, on or after the date of\nthis Agreement in connection with any action or proceeding in respect thereof.\n(b) “Confidential Information” shall not include any information that is (x) generally known to the industry or the public other than as a result\nof Employee’s breach of this covenant or any breach of other confidentiality obligations by third parties to the extent the Employee knows or\nreasonably should have known of such breach by such third parties; (y) made available to Employee by a third party (unless Employee knows or\nreasonably should have known that such third party has breached any confidentiality obligation); or (z) required by law or by any court, arbitrator,\nmediator or administrative or legislative body (including any committee thereof) with actual or apparent jurisdiction to order Employee to disclose or\nmake accessible any information; provided that, with respect to clause (z) Employee, except as otherwise prohibited by law or regulation, shall give\nprompt written notice to Evercore of such requirement, disclose no more information than is so required, and shall reasonably cooperate with any\nattempts by Evercore, at its sole cost, to obtain a protective order or similar treatment prior to making such disclosure.\n(c) Except as required by law or otherwise set forth in clause (z) of Section 1(b) above, or unless or until publicly disclosed by Evercore,\nEmployee will not disclose to anyone, other than Employee’s immediate family and legal, tax or financial advisors, the existence or contents of this\nAgreement; provided that Employee may disclose (i) to any prospective future employer the provisions of this Agreement provided they agree to\nmaintain the confidentiality of such terms or (ii) in connection with any litigation or arbitration involving this Agreement.\n(d) Upon termination of Employee’s employment with Evercore for any reason, Employee shall (x) cease and not thereafter commence use of\nany Confidential Information or intellectual property (including without limitation, any patent, invention, copyright, trade secret, trademark, trade\nname, logo, domain name or other source indicator) if such property is owned or used by Evercore; (y) immediately destroy, delete, or return to\nEvercore, at Evercore’s option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters\nand other data) in Employee’s possession or control (including any of the foregoing stored or located in Employee’s office, home, laptop or other\ncomputer, whether or not Company property) that contain Confidential Information or otherwise relate to the business of Evercore, except that\nEmployee may retain only those portions of any personal notes, notebooks and diaries that do not contain Confidential Information; and (z) notify\nand fully cooperate with Evercore regarding the delivery or destruction of any other Confidential Information of which Employee is or becomes\naware to the extent such information is in Employee’s possession or control. Notwithstanding anything elsewhere to the contrary, Employee shall be\nentitled to retain (and not destroy) (x) information showing Employee’s compensation or relating to reimbursement of expenses that Employee\nreasonably believes is necessary for tax purposes and (y) copies of plans, programs, policies and arrangements of, or other agreements with,\nEvercore addressing Employee’s compensation or Employee’s employment or termination thereof.\n-2-\n2. Non-Competition; Non-Solicitation; Non-Interference.\n(a) Without limiting any duty or obligation otherwise applicable to Employee, Employee agrees as follows:\n(i) Non-Competition. During Employee’s service with Evercore, Employee will not, directly or indirectly:\n(A) engage in any business that competes with the business of Evercore (including, without limitation, any businesses that\nEvercore is then actively considering conducting, so long as Employee knows or reasonably should know of such plan(s)) in any geographical area\nthat is within 100 miles of any geographical area where Evercore provides its products or services (a “Competitive Business”);\n(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person)\nwho or which is a Competitive Business; or\n(C) subject to the terms of Evercore’s employee investments policy applicable to Employee from time to time, acquire a financial\ninterest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder,\nofficer, director, principal, agent, trustee or consultant.\nNotwithstanding the provisions of Section 2(a)(i)(A), (B) or (C) above, nothing contained in this Section 2(a)(i) shall prohibit Employee from\ninvesting, as a passive investor, in any publicly held company provided that Employee’s beneficial ownership of any class of such publicly held\ncompany’s securities does not exceed two percent (2%) of the outstanding securities of such class.\n(ii) Non-Solicitation of Clients. During Employee’s service with Evercore and the six-month period immediately following cessation of\nthat service for any reason, Employee will not, whether on Employee’s own behalf or on behalf of or in conjunction with any Person, directly or\nindirectly solicit or assist in soliciting the business of, any investment from, any opportunity to make an investment in, or any opportunity to act as a\nfinancial, restructuring or asset management advisor in connection with any transaction involving, any client, prospective client, investor, portfolio\ncompany or prospective portfolio company, or member of management of any portfolio company or prospective portfolio company of Evercore\n(collectively, the “Clients”):\n(A) with whom Employee had personal contact or dealings on behalf of Evercore during the two-year period immediately\npreceding the Relevant Date;\n(B) with whom employees reporting to Employee have had personal contact or dealings on behalf of Evercore during the two-\nyear period immediately preceding the Relevant Date; or\n(C) with respect to which Employee had direct or indirect responsibility during the two-year period immediately preceding the\nRelevant Date.\n-3-\n(iii) Non-Interference with Business Relationships. During Employee’s service with Evercore and the six-month period immediately\nfollowing cessation of that service for any reason, Employee will not interfere with, or attempt to interfere with, business relationships (whether\nformed before, on or after the date of this Agreement) between Evercore, on the one hand, and any Client, customers, suppliers, partners, of\nEvercore, on the other hand.\n(iv) Non-Solicitation of Employees; Non-Solicitation of Consultants. During Employee’s service with Evercore and the 12-month period\nimmediately following cessation of that service for any reason, Employee will not, whether on Employee’s own behalf or on behalf of or in\nconjunction with any Person, directly or indirectly (other than in the ordinary course of Employee’s employment with Evercore and on Evercore’s\nbehalf):\n(A) solicit or encourage any employee of Evercore to leave the employment of Evercore; or\n(B) hire any such employee who was employed by Evercore as of the date of Employee’s termination of employment with\nEvercore or who left the employment of Evercore coincident with, or within six months prior to or after, the termination of Employee’s employment\nwith Evercore; or\n(C) solicit or encourage to cease to work with Evercore any consultant that Employee knows, or reasonably should have known,\nis then under contract with Evercore.\n(b) It is expressly understood and agreed that although Employee and Evercore consider the restrictions contained in this Agreement to be\nreasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in\nthis Agreement is an unenforceable restriction against Employee, the provisions of this Agreement shall not be rendered void but shall be deemed\namended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be\nenforceable (provided that in no event shall any such amendment broaden the time period or scope of any restriction herein). Alternatively, if any\ncourt of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as\nto make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.\n(c) For purposes of this Agreement, “Relevant Date” shall mean, when applied during the term of Employee’s service with Evercore, the date\nof such application and, when applied following Employee’s cessation of service with Evercore, the effective date of that cessation of service.\n3. Intellectual Property.\n(a) If Employee has created, invented, designed, developed, contributed to or improved any inventions, intellectual property, discoveries,\ncopyrightable subject matters or other similar work of intellectual property (including without limitation, research, reports, software, databases,\nsystems or applications, presentations, textual works, content, or audiovisual materials) (“Works”), either alone or with third parties, during\nEmployee’s employment prior hereto, that are relevant to or implicated by such employment (“Prior Works”), to the extent\n-4-\nEmployee has retained or does retain any right in such Prior Work, Employee hereby grants Evercore a perpetual, non-exclusive, royalty-free,\nworldwide, assignable, sublicensable license under all rights and intellectual property rights (including rights under patent, industrial property,\ncopyright, trademark, trade secret, unfair competition and related laws) therein to the extent of Employee’s rights in such Prior Work for all purposes\nin connection with Evercore’s current and future business.\n(b) If Employee creates, invents, designs, develops, contributes to or improves any Works, either alone or with third parties, at any time during\nEmployee’s employment by Evercore and within the scope of such employment and/or with the use of any Evercore resources (“Company Works”),\nEmployee shall promptly and fully disclose same to Evercore and hereby irrevocably assigns, transfers and conveys, to the maximum extent\npermitted by applicable law, and at Evercore’s sole expense, all rights and intellectual property rights therein (including rights under patent,\nindustrial property, copyright, trademark, trade secret, unfair competition and related laws) to Evercore to the extent ownership of any such rights\ndoes not vest originally in Evercore.\n(c) Employee agrees to keep and maintain adequate and current written records (in the form of notes, sketches, drawings, and any other form\nor media requested by Evercore) of all Company Works. The records will be available to and remain the sole property and intellectual property of\nEvercore at all times.\n(d) Employee shall take all requested actions and execute all requested documents (including any licenses or assignments required by a\ngovernment contract) at Evercore’s expense (but without further remuneration) to assist Evercore in validating, maintaining, protecting, enforcing,\nperfecting, recording, patenting or registering any of Evercore’s rights in the Prior Works and Company Works as set forth in this Section 3. If\nEvercore is unable for any other reason to secure Employee’s signature on any document for this purpose, then Employee hereby irrevocably\ndesignates and appoints Evercore and its duly authorized officers and agents as Employee’s agent and attorney in fact, to act for and in Employee’s\nbehalf and stead to execute any documents and to do all other lawfully permitted acts in connection with the foregoing.\n(e) Except as may otherwise be required under Section 3(a) above, Employee shall not improperly use for the benefit of, bring to any premises\nof, divulge, disclose, communicate, reveal, transfer or provide access to, or share with Evercore any confidential, proprietary or non-public\ninformation or intellectual property relating to a former employer or other third party which Employee knows or reasonably should have known is\nconfidential, proprietary or non-public information or intellectual property of such third party without the prior written permission of such third\nparty. Employee hereby indemnifies, holds harmless and agrees to defend Evercore and its officers, directors, partners, employees, agents and\nrepresentatives from any breach of the foregoing covenant. Employee shall comply with all relevant policies and guidelines of Evercore, including\nregarding the protection of confidential information and intellectual property and potential conflicts of interest. Employee acknowledges that\nEvercore may amend any such policies and guidelines from time to time, and that Employee remains at all times bound by their most current\nversion.\n-5-\n(f) The provisions of Section 3 shall survive the termination of Employee’s employment for any reason.\n4. Notice of Termination.\n(a) Employee agrees to provide Evercore with not less than 90 days’ advance written notice of any resignation of his or her employment;\nprovided, however, that Evercore may in its discretion waive all or part of that notice period.\n(b) During the notice period described above in Section 4(a), Evercore may in its discretion require Employee to cease performing some or all\nof his or her duties and to refrain from entering its places of business, provided that during such notice period, Employee will remain an Evercore\nemployee, will cooperate in the transition of his or her duties to other Evercore personnel and will remain bound by all his or her duties and\nobligations to Evercore, including (without limitation) the obligations stated in this Agreement and the duties and obligations applicable to Employee\nunder common law.\n(c) If Employee fails, in whole or in part, to provide the advance notice of resignation required by this Section 4 and Evercore does not waive\nthat notice period or any unexpired portion thereof (the “Remaining Period”), Evercore will continue to pay Employee’s base salary for the\nRemaining Period and the restrictions contained in Section 2(a) above will all be extended by a number of days equal to the duration of the\nRemaining Period. Any base salary continuation otherwise payable under this paragraph will be offset by the amount of any severance or similar\npost-termination compensation paid by Evercore to Employee.\n5. Specific Performance.\nEmployee acknowledges and agrees that in the course of Employee’s service to Evercore, Employee will be provided with access to\nConfidential Information, and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other\nagents of Evercore, and Employee further acknowledges that such Confidential Information and relationships are extremely valuable assets of\nEvercore in which Evercore has invested and will continue to invest substantial time, effort and expense. Accordingly, Employee acknowledges and\nagrees that Evercore’s remedies at law for a breach or threatened breach of any of the provisions of Sections 1, 2, 3 and 4 would be inadequate and,\nin recognition of this fact, Employee agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, Evercore,\nwithout posting any bond, shall be entitled to cease making any payments or providing any benefit otherwise required to be paid or provided by\nEvercore (other than any vested benefits under any retirement plan or as may be required by applicable law to be provided), enforce any forfeiture\nprovision applicable to outstanding equity awards, as provided in the applicable award agreements, and seek equitable relief in the form of specific\nperformance, temporary restraining order, temporary or permanent injunction or any other equitable remedy which may then be available; provided,\nhowever, that if it is subsequently determined in a final and binding arbitration or litigation that Employee did not breach any such provision,\nEvercore will promptly pay any payments or provide any benefits which Evercore may have ceased to pay when originally due and payable, plus an\nadditional amount equal to interest (calculated based on the applicable federal rate for the month in which such final\n-6-\ndetermination is made) accrued on the applicable payment or the amount of the benefit, as applicable, beginning from the date such payment or\nbenefit was originally due and payable through the day preceding the date on which such payment or benefit is ultimately paid hereunder.\n6. Miscellaneous.\n(a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard\nto the conflict of laws provisions thereof.\n(b) Entire Agreement/Amendments. Except as otherwise provided herein, this Agreement contains the entire understanding of the parties with\nrespect to the subject matter hereof and supersedes any other agreement with respect to the subject matter hereof (including any prior version of this\nConfidentiality, Non-Solicitation and Proprietary Information Agreement). Except as otherwise provided herein, there are no restrictions,\nagreements, promises, warranties, covenants or undertakings between the parties with respect to the subject matter herein other than those expressly\nset forth herein. This Agreement may not be altered, modified, or amended except by written instrument signed by the parties hereto. The foregoing\nnotwithstanding, this Agreement will not supersede changes to the duration of any restrictive covenant and related enforcement provisions included\nin any equity incentive award issued by the Company, even if issued on or prior to the date hereof.\n(c) No Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a\nwaiver of such party’s rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this\nAgreement.\n(d) Severability. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in\nany respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby.\n(e) Assignment. This Agreement shall not be assignable by Employee. This Agreement may be assigned by Evercore to a person or entity\nwhich is an affiliate or a successor in interest to substantially all of the business operations of Evercore; provided such person or entity agrees to\nabide by the terms of this Agreement. Upon such assignment in accordance herewith, the rights and obligations of Evercore hereunder shall become\nthe rights and obligations of such affiliate or successor person or entity; provided that in no event shall the provisions of this Agreement be\ninterpreted to apply to the affiliate or the successor person or entity other than with respect to the business of Evercore that is so assigned as of such\ndate (including, without limitation, the business it is engaged in, its employees, clients and its Confidential Information).\n(f) Successors; Binding Agreement. This Agreement shall inure to the benefit of and be binding upon personal or legal representatives,\nexecutors, administrators, successors, heirs, distributees, devisees and legatees of the parties hereto.\n-7-\n(g) Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures\nthereto and hereto were upon the same instrument.\n[Signature Page Follows]\n-8-\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above.\nEVERCORE PARTNERS SERVICES EAST L.L.C.\nBy:\nName:\nTitle:\nEMPLOYEE\n(Signature)\n(Print Name)\n-9-	EX-10.43 5 d269066dex1043.htm 2012 CONFIDENTIALITY, NON-SOLICITATION AND PROPRIETARY\nINFORMATION AGREEMENT\nExhibit 10.43\nConfidentiality, Non-Solicitation and Proprietary Information Agreement\n(Senior Managing Director)\nThis Confidentiality, Non-Solicitation and Proprietary Information Agreement (the “Agreement”), is made as of the  day of s\n2012, between Evercore Partners Services East L.L.C. (the “Company”), and the employee signatory hereto (the “Employee”).\nRECITALS:\nWHEREAS, Employee acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates\n(collectively, “Evercore”);\nWHEREAS, Employee acknowledges that he/she will be provided with access to sensitive, proprietary and confidential information of\nEvercore and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other agents of\nEvercore, which, in each case, Employee acknowledges and agrees constitute valuable assets of Evercore; and\nWHEREAS, Employee agrees to be subject to the restrictive covenants as set forth in this Agreement.\nNOW THEREFORE, for good and valuable consideration the parties agree as follows:\n1. Confidentiality.\n(a) Employee will not at any time (whether during or after Employee’s employment with Evercore), other than in the ordinary course of\nperforming services for Evercore, (x) retain or use for the benefit, purposes or account of Employee or any other person, firm, partnership, joint\nventure, association, corporation or other business organization, entity or enterprise whatsoever (“Person”); or (y) disclose, divulge, reveal,\ncommunicate, share, transfer or provide access to any Person outside Evercore (other than its professional advisers who are bound by confidentiality\nobligations), any non-public, proprietary or confidential information obtained by Employee in connection with the commencement of Employee’s\nemployment with Evercore or at any time thereafter during the course of Employee’s employment with Evercore—including without limitation trade\nsecrets, know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual\nproperty, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors,\npersonnel, compensation (excluding Employees’ own compensation), recruiting, training, advertising, sales, marketing, promotions, government and\nregulatory activities and approvals—concerning the past, current or future business activities and operations of Evercore and/or any third party that\nhas disclosed or provided any of the same to Evercore on a confidential basis (provided that with respect to such third party, Employee knows or\nreasonably should have known that the third party provided it to Evercore on a confidential basis) (“Confidential Information”) without the prior\nwritten authorization of the Chief Executive Officer of Evercore Partners Inc.; provided, however, that in any event Employee shall be permitted to\ndisclose any Confidential Information reasonably necessary (i) to perform Employee’s duties while employed with Evercore or (ii) in connection\nwith any litigation or arbitration involving this or any other agreement entered into between Employee and Evercore before, on or after the date of\nthis Agreement in connection with any action or proceeding in respect thereof.\n(b) “Confidential Information” shall not include any information that is (x) generally known to the industry or the public other than as a result\nof Employee’s breach of this covenant or any breach of other confidentiality obligations by third parties to the extent the Employee knows or\nreasonably should have known of such breach by such third parties; (y) made available to Employee by a third party (unless Employee knows or\nreasonably should have known that such third party has breached any confidentiality obligation); or (z) required by law or by any court, arbitrator,\nmediator or administrative or legislative body (including any committee thereof) with actual or apparent jurisdiction to order Employee to disclose or\nmake accessible any information; provided that, with respect to clause (z) Employee, except as otherwise prohibited by law or regulation, shall give\nprompt written notice to Evercore of such requirement, disclose no more information than is so required, and shall reasonably cooperate with any\nattempts by Evercore, at its sole cost, to obtain a protective order or similar treatment prior to making such disclosure.\n(c) Except as required by law or otherwise set forth in clause (z) of Section 1(b) above, or unless or until publicly disclosed by Evercore,\nEmployee will not disclose to anyone, other than Employee’s immediate family and legal, tax or financial advisors, the existence or contents of this\nAgreement; provided that Employee may disclose (i) to any prospective future employer the provisions of this Agreement provided they agree to\nmaintain the confidentiality of such terms or (ii) in connection with any litigation or arbitration involving this Agreement.\n(d) Upon termination of Employee’s employment with Evercore for any reason, Employee shall (x) cease and not thereafter commence use of\nany Confidential Information or intellectual property (including without limitation, any patent, invention, copyright, trade secret, trademark, trade\nname, logo, domain name or other source indicator) if such property is owned or used by Evercore; (y) immediately destroy, delete, or return to\nEvercore, at Evercore’s option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters\nand other data) in Employee’s possession or control (including any of the foregoing stored or located in Employee’s office, home, laptop or other\ncomputer, whether or not Company property) that contain Confidential Information or otherwise relate to the business of Evercore, except that\nEmployee may retain only those portions of any personal notes, notebooks and diaries that do not contain Confidential Information; and (z) notify\nand fully cooperate with Evercore regarding the delivery or destruction of any other Confidential Information of which Employee is or becomes\naware to the extent such information is in Employee’s possession or control. Notwithstanding anything elsewhere to the contrary, Employee shall be\nentitled to retain (and not destroy) (x) information showing Employee’s compensation or relating to reimbursement of expenses that Employee\nreasonably believes is necessary for tax purposes and (y) copies of plans, programs, policies and arrangements of, or other agreements with,\nEvercore addressing Employee’s compensation or Employee’s employment or termination thereof.\n-\n2. Non-Competition; Non-Solicitation; Non-Interference.\n(a) Without limiting any duty or obligation otherwise applicable to Employee, Employee agrees as follows:\n(i) Non-Competition. During Employee’s service with Evercore, Employee will not, directly or indirectly:\n \n(A) engage in any business that competes with the business of Evercore (including, without limitation, any businesses that\nEvercore is then actively considering conducting, so long as Employee knows or reasonably should know of such plan(s)) in any geographical area\nthat is within 100 miles of any geographical area where Evercore provides its products or services (a “Competitive Business™);\n(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person)\nwho or which is a Competitive Business; or\n(C) subject to the terms of Evercore’s employee investments policy applicable to Employee from time to time, acquire a financial\ninterest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder,\nofficer, director, principal, agent, trustee or consultant.\nNotwithstanding the provisions of Section 2(a)(i)(A), (B) or (C) above, nothing contained in this Section 2(a)(i) shall prohibit Employee from\ninvesting, as a passive investor, in any publicly held company provided that Employee’s beneficial ownership of any class of such publicly held\ncompany’s securities does not exceed two percent (2%) of the outstanding securities of such class.\n(ii) Non-Solicitation of Clients. During Employee’s service with Evercore and the six-month period immediately following cessation of\nthat service for any reason, Employee will not, whether on Employee’s own behalf or on behalf of or in conjunction with any Person, directly or\nindirectly solicit or assist in soliciting the business of, any investment from, any opportunity to make an investment in, or any opportunity to act as a\nfinancial, restructuring or asset management advisor in connection with any transaction involving, any client, prospective client, investor, portfolio\ncompany or prospective portfolio company, or member of management of any portfolio company or prospective portfolio company of Evercore\n(collectively, the “Clients™):\n(A) with whom Employee had personal contact or dealings on behalf of Evercore during the two-year period immediately\npreceding the Relevant Date;\n(B) with whom employees reporting to Employee have had personal contact or dealings on behalf of Evercore during the two-\nyear period immediately preceding the Relevant Date; or\n(C) with respect to which Employee had direct or indirect responsibility during the two-year period immediately preceding the\nRelevant Date.\n_3-\n(iii) Non-Interference with Business Relationships. During Employee’s service with Evercore and the six-month period immediately\nfollowing cessation of that service for any reason, Employee will not interfere with, or attempt to interfere with, business relationships (whether\nformed before, on or after the date of this Agreement) between Evercore, on the one hand, and any Client, customers, suppliers, partners, of\nEvercore, on the other hand.\n(iv) Non-Solicitation of Employees; Non-Solicitation of Consultants. During Employee’s service with Evercore and the 12-month period\nimmediately following cessation of that service for any reason, Employee will not, whether on Employee’s own behalf or on behalf of or in\nconjunction with any Person, directly or indirectly (other than in the ordinary course of Employee’s employment with Evercore and on Evercore’s\nbehalf):\n(A) solicit or encourage any employee of Evercore to leave the employment of Evercore; or\n(B) hire any such employee who was employed by Evercore as of the date of Employee’s termination of employment with\nEvercore or who left the employment of Evercore coincident with, or within six months prior to or after, the termination of Employee’s employment\nwith Evercore; or\n(C) solicit or encourage to cease to work with Evercore any consultant that Employee knows, or reasonably should have known,\nis then under contract with Evercore.\n(b) It is expressly understood and agreed that although Employee and Evercore consider the restrictions contained in this Agreement to be\nreasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in\nthis Agreement is an unenforceable restriction against Employee, the provisions of this Agreement shall not be rendered void but shall be deemed\namended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be\nenforceable (provided that in no event shall any such amendment broaden the time period or scope of any restriction herein). Alternatively, if any\ncourt of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as\nto make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.\n(c) For purposes of this Agreement, “Relevant Date” shall mean, when applied during the term of Employee’s service with Evercore, the date\nof such application and, when applied following Employee’s cessation of service with Evercore, the effective date of that cessation of service.\n3. Intellectual Property.\n(a) If Employee has created, invented, designed, developed, contributed to or improved any inventions, intellectual property, discoveries,\ncopyrightable subject matters or other similar work of intellectual property (including without limitation, research, reports, software, databases,\nsystems or applications, presentations, textual works, content, or audiovisual materials) (“Works”), either alone or with third parties, during\nEmployee’s employment prior hereto, that are relevant to or implicated by such employment (“Prior Works™), to the extent\n4-\nEmployee has retained or does retain any right in such Prior Work, Employee hereby grants Evercore a perpetual, non-exclusive, royalty-free,\nworldwide, assignable, sublicensable license under all rights and intellectual property rights (including rights under patent, industrial property,\ncopyright, trademark, trade secret, unfair competition and related laws) therein to the extent of Employee’s rights in such Prior Work for all purposes\nin connection with Evercore’s current and future business.\n(b) If Employee creates, invents, designs, develops, contributes to or improves any Works, either alone or with third parties, at any time during\nEmployee’s employment by Evercore and within the scope of such employment and/or with the use of any Evercore resources (“Company Works”),\nEmployee shall promptly and fully disclose same to Evercore and hereby irrevocably assigns, transfers and conveys, to the maximum extent\npermitted by applicable law, and at Evercore’s sole expense, all rights and intellectual property rights therein (including rights under patent,\nindustrial property, copyright, trademark, trade secret, unfair competition and related laws) to Evercore to the extent ownership of any such rights\ndoes not vest originally in Evercore.\n(c) Employee agrees to keep and maintain adequate and current written records (in the form of notes, sketches, drawings, and any other form\nor media requested by Evercore) of all Company Works. The records will be available to and remain the sole property and intellectual property of\nEvercore at all times.\n(d) Employee shall take all requested actions and execute all requested documents (including any licenses or assignments required by a\ngovernment contract) at Evercore’s expense (but without further remuneration) to assist Evercore in validating, maintaining, protecting, enforcing,\nperfecting, recording, patenting or registering any of Evercore’s rights in the Prior Works and Company Works as set forth in this Section 3. If\nEvercore is unable for any other reason to secure Employee’s signature on any document for this purpose, then Employee hereby irrevocably\ndesignates and appoints Evercore and its duly authorized officers and agents as Employee’s agent and attorney in fact, to act for and in Employee’s\nbehalf and stead to execute any documents and to do all other lawfully permitted acts in connection with the foregoing.\n(e) Except as may otherwise be required under Section 3(a) above, Employee shall not improperly use for the benefit of, bring to any premises\nof, divulge, disclose, communicate, reveal, transfer or provide access to, or share with Evercore any confidential, proprietary or non-public\ninformation or intellectual property relating to a former employer or other third party which Employee knows or reasonably should have known is\nconfidential, proprietary or non-public information or intellectual property of such third party without the prior written permission of such third\nparty. Employee hereby indemnifies, holds harmless and agrees to defend Evercore and its officers, directors, partners, employees, agents and\nrepresentatives from any breach of the foregoing covenant. Employee shall comply with all relevant policies and guidelines of Evercore, including\nregarding the protection of confidential information and intellectual property and potential conflicts of interest. Employee acknowledges that\nEvercore may amend any such policies and guidelines from time to time, and that Employee remains at all times bound by their most current\nversion.\n_5-\n(f) The provisions of Section 3 shall survive the termination of Employee’s employment for any reason.\n4. Notice of Termination.\n(a) Employee agrees to provide Evercore with not less than 90 days’ advance written notice of any resignation of his or her employment;\nprovided, however, that Evercore may in its discretion waive all or part of that notice period.\n(b) During the notice period described above in Section 4(a), Evercore may in its discretion require Employee to cease performing some or all\nof his or her duties and to refrain from entering its places of business, provided that during such notice period, Employee will remain an Evercore\nemployee, will cooperate in the transition of his or her duties to other Evercore personnel and will remain bound by all his or her duties and\nobligations to Evercore, including (without limitation) the obligations stated in this Agreement and the duties and obligations applicable to Employee\nunder common law.\n(c) If Employee fails, in whole or in part, to provide the advance notice of resignation required by this Section 4 and Evercore does not waive\nthat notice period or any unexpired portion thereof (the “Remaining Period”), Evercore will continue to pay Employee’s base salary for the\nRemaining Period and the restrictions contained in Section 2(a) above will all be extended by a number of days equal to the duration of the\nRemaining Period. Any base salary continuation otherwise payable under this paragraph will be offset by the amount of any severance or similar\npost-termination compensation paid by Evercore to Employee.\n5. Specific Performance.\nEmployee acknowledges and agrees that in the course of Employee’s service to Evercore, Employee will be provided with access to\nConfidential Information, and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other\nagents of Evercore, and Employee further acknowledges that such Confidential Information and relationships are extremely valuable assets of\nEvercore in which Evercore has invested and will continue to invest substantial time, effort and expense. Accordingly, Employee acknowledges and\nagrees that Evercore’s remedies at law for a breach or threatened breach of any of the provisions of Sections 1, 2, 3 and 4 would be inadequate and,\nin recognition of this fact, Employee agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, Evercore,\nwithout posting any bond, shall be entitled to cease making any payments or providing any benefit otherwise required to be paid or provided by\nEvercore (other than any vested benefits under any retirement plan or as may be required by applicable law to be provided), enforce any forfeiture\nprovision applicable to outstanding equity awards, as provided in the applicable award agreements, and seek equitable relief in the form of specific\nperformance, temporary restraining order, temporary or permanent injunction or any other equitable remedy which may then be available; provided,\nhowever, that if it is subsequently determined in a final and binding arbitration or litigation that Employee did not breach any such provision,\nEvercore will promptly pay any payments or provide any benefits which Evercore may have ceased to pay when originally due and payable, plus an\nadditional amount equal to interest (calculated based on the applicable federal rate for the month in which such final\n-6-\ndetermination is made) accrued on the applicable payment or the amount of the benefit, as applicable, beginning from the date such payment or\nbenefit was originally due and payable through the day preceding the date on which such payment or benefit is ultimately paid hereunder.\n6. Miscellaneous.\n(a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard\nto the conflict of laws provisions thereof.\n(b) Entire Agreement/Amendments. Except as otherwise provided herein, this Agreement contains the entire understanding of the parties with\nrespect to the subject matter hereof and supersedes any other agreement with respect to the subject matter hereof (including any prior version of this\nConfidentiality, Non-Solicitation and Proprietary Information Agreement). Except as otherwise provided herein, there are no restrictions,\nagreements, promises, warranties, covenants or undertakings between the parties with respect to the subject matter herein other than those expressly\nset forth herein. This Agreement may not be altered, modified, or amended except by written instrument signed by the parties hereto. The foregoing\nnotwithstanding, this Agreement will not supersede changes to the duration of any restrictive covenant and related enforcement provisions included\nin any equity incentive award issued by the Company, even if issued on or prior to the date hereof.\n(c) No Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a\nwaiver of such party’s rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this\nAgreement.\n(d) Severability. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in\nany respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby.\n(e) Assignment. This Agreement shall not be assignable by Employee. This Agreement may be assigned by Evercore to a person or entity\nwhich is an affiliate or a successor in interest to substantially all of the business operations of Evercore; provided such person or entity agrees to\nabide by the terms of this Agreement. Upon such assignment in accordance herewith, the rights and obligations of Evercore hereunder shall become\nthe rights and obligations of such affiliate or successor person or entity; provided that in no event shall the provisions of this Agreement be\ninterpreted to apply to the affiliate or the successor person or entity other than with respect to the business of Evercore that is so assigned as of such\ndate (including, without limitation, the business it is engaged in, its employees, clients and its Confidential Information).\n(f) Successors; Binding Agreement. This Agreement shall inure to the benefit of and be binding upon personal or legal representatives,\nexecutors, administrators, successors, heirs, distributees, devisees and legatees of the parties hereto.\n_7-\n(g) Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures\nthereto and hereto were upon the same instrument.\n[Signature Page Follows]\n_8-\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above. EVERCORE PARTNERS SERVICES EAST L.L.C.\nBy:\nName:\nTitle:\nEMPLOYEE\n(Signature)\n(Print Name)	EX-10.43 5 d269066dex1043.htr 2012 CONFIDENTIALITY, NON-SOLICITATION AND PROPRIETARY\nINFORMATION AGREEMENT\nExhibit 10.43\nConfidentiality, Non-Solicitation and Proprietary Information Agreement\n(Senior Managing Director)\nThis Confidentiality, Non-Solicitation and Proprietary Information Agreement (the "Agreement"), is made as of the\nday of\n2012, between Evercore Partners Services East L.L.C. (the "Company"), and the employee signatory hereto (the "Employee").\nRECITALS:\nWHEREAS, Employee acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates\n(collectively, "Evercore");\nWHEREAS, Employee acknowledges that he/she will be provided with access to sensitive, proprietary and confidential information of\nEvercore and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other agents of\nEvercore, which, in each case, Employee acknowledges and agrees constitute valuable assets of Evercore; and\nWHEREAS, Employee agrees to be subject to the restrictive covenants as set forth in this Agreement.\nNOW THEREFORE, for good and valuable consideration the parties agree as follows:\n1. Confidentiality.\n(a) Employee will not at any time (whether during or after Employee's employment with Evercore), other than in the ordinary course of\nperforming services for Evercore, (x) retain or use for the benefit, purposes or account of Employee or any other person, firm, partnership, joint\nventure, association, corporation or other business organization, entity or enterprise whatsoever ("Person"); or (y) disclose, divulge, reveal,\ncommunicate, share, transfer or provide access to any Person outside Evercore (other than its professional advisers who are bound by confidentiality\nobligations), any non-public, proprietary or confidential information obtained by Employee in connection with the commencement of Employee's\nemployment with Evercore or at any time thereafter during the course of Employee's employment with Evercore-including without limitation trade\nsecrets, know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual\nproperty,\ninformation concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors,\npersonnel, compensation (excluding Employees' own compensation), recruiting, training, advertising, sales, marketing, promotions, government and\nregulatory activities and approvals-concerning the past, current or future business activities and operations of Evercore and/or any third party that\nhas\ndisclosed or provided any of the same to Evercore on a confidential basis (provided that with respect to such third party, Employee knows or\nreasonably should have known that the third party provided it to Evercore on a confidential basis) ("Confidential Information") without the prior\nwritten authorization of the Chief Executive Officer of Evercore Partners Inc.; provided, however, that in any event Employee shall be permitted\nto\ndisclose any Confidential Information reasonably necessary (i) to perform Employee's duties while employed with Evercore or\n(ii)\nin\nconnection\nwith any litigation or arbitration involving this or any other agreement entered into between Employee and Evercore before, on or after the date\nof\nthis Agreement in connection with any action or proceeding in respect thereof.\n(b) "Confidential Information" shall not include any information that is (x) generally known to the industry or the public other than as a result\nof Employee's breach of this covenant or any breach of other confidentiality obligations by third parties to the extent the Employee knows\nor\nreasonably should have known of such breach by such third parties; (y) made available to Employee by a third party (unless Employee knows\nor\nreasonably should have known that such third party has breached any confidentiality obligation); or (z) required by law or by any court, arbitrator,\nmediator or administrative or legislative body (including any committee thereof) with actual or apparent jurisdiction to order Employee to disclose or\nmake accessible any information; provided that, with respect to clause (z) Employee, except as otherwise prohibited by law or regulation shall give\nprompt written notice to Evercore of such requirement, disclose no more information than is so required, and shall reasonably cooperate with any\nattempts by Evercore, at its sole cost, to obtain a protective order or similar treatment prior to making such disclosure.\n(c) Except as required by law or otherwise set forth in clause (z) of Section 1(b) above, or unless or until publicly disclosed by Evercore,\nEmployee will not disclose to anyone, other than Employee's immediate family and legal, tax or financial advisors, the existence or contents of this\nAgreement; provided that Employee may disclose (i) to any prospective future employer the provisions of this Agreement provided they agree to\nmaintain the confidentiality of such terms or (ii) in connection with any litigation or arbitration involving this Agreement.\n(d) Upon termination of Employee's employment with Evercore for any reason, Employee shall (x) cease and not thereafter commence use of\nany Confidential Information or intellectual property (including without limitation, any patent, invention, copyright, trade secret, trademark, trade\nname, logo, domain name or other source indicator) if such property is owned or used by Evercore; (y) immediately destroy, delete, or return to\nEvercore, at Evercore's option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters\nand other data) in Employee's possession or control (including any of the foregoing stored or located in Employee's office, home, laptop or other\ncomputer, whether or not Company property) that contain Confidential Information or otherwise relate to the business of Evercore, except that\nEmployee may retain only those portions of any personal notes, notebooks and diaries that do not contain Confidential Information; and (z) notify\nand fully cooperate with Evercore regarding the delivery or destruction of any other Confidential Information of which Employee is or becomes\naware to the extent such information is in Employee's possession or control. Notwithstanding anything elsewhere to the contrary, Employee shall\nbe\nentitled to retain (and not destroy) (x) information showing Employee's compensation or relating to reimbursement of expenses that Employee\nreasonably believes is necessary for tax purposes and (y) copies of plans, programs, policies and arrangements of, or other agreements with,\nEvercore addressing Employee's compensation or Employee's employment or termination thereof.\n-2-\n2. Non-Competition; Non-Solicitation; Non-Interference.\n(a) Without limiting any duty or obligation otherwise applicable to Employee, Employee agrees as follows:\n(i) Non-Competition. During Employee's service with Evercore, Employee will not, directly or indirectly:\n(A) engage in any business that competes with the business of Evercore (including, without limitation, any businesses\nthat\nEvercore is then actively considering conducting, so long as Employee knows or reasonably should know of such plan(s)) in any geographical area\nthat is within 100 miles of any geographical area where Evercore provides its products or services (a "Competitive Business");\n(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person)\nwho or which is a Competitive Business; or\n(C) subject to the terms of Evercore's employee investments policy applicable to Employee from time to time, acquire a financial\ninterest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder,\nofficer, director, principal, agent, trustee or consultant.\nNotwithstanding the provisions of Section 2(a)(i)(A), (B) or (C) above, nothing contained in this Section 2(a)(i) shall prohibit Employee from\ninvesting, as a passive investor, in any publicly held company provided that Employee's beneficial ownership of any class of such publicly held\ncompany's securities does not exceed two percent (2%) of the outstanding securities of such class.\n(ii) Non-Solicitation of Clients. During Employee's service with Evercore and the six-month period immediately following cessation of\nthat service for any reason, Employee will not, whether on Employee's own behalf or on behalf of or in conjunction with any Person, directly or\nindirectly solicit or assist in soliciting the business of, any investment from, any opportunity to make an investment in, or any opportunity to act as a\nfinancial, restructuring or asset management advisor in connection with any transaction involving, any client, prospective client, investor, portfolio\ncompany or prospective portfolio company, or member of management of any portfolio company or prospective portfolio company of Evercore\n(collectively, the "Clients"):\n(A) with whom Employee had personal contact or dealings on behalf of Evercore during the two-year period immediately\npreceding the Relevant Date;\n(B) with whom employees reporting to Employee have had personal contact or dealings on behalf of Evercore during the two-\nyear period immediately preceding the Relevant Date; or\n(C) with respect to which Employee had direct or indirect responsibility during the two-year period immediately preceding\nthe\nRelevant Date.\n-3-\n(iii) Non-Interference with Business Relationships. During Employee's service with Evercore and the six-month period immediately\nfollowing cessation of that service for any reason, Employee will not interfere with, or attempt to interfere with, business relationships (whether\nformed before, on or after the date of this Agreement) between Evercore, on the one hand, and any Client, customers, suppliers, partners, of\nEvercore, on the other hand.\n(iv) Non-Solicitation of Employees; Non-Solicitation of Consultants. During Employee's service with Evercore and the 12-month period\nimmediately following cessation of that service for any reason, Employee will not, whether on Employee's own behalf or on behalf of or in\nconjunction with any Person, directly or indirectly (other than in the ordinary course of Employee's employment with Evercore and on Evercore's\nbehalf):\n(A) solicit or encourage any employee of Evercore to leave the employment of Evercore; or\n(B) hire any such employee who was employed by Evercore as of the date of Employee's termination of employment\nwith\nEvercore or who left the employment of Evercore coincident with, or within six months prior to or after, the termination of Employee's employment\nwith Evercore; or\n(C) solicit or encourage to cease to work with Evercore any consultant that Employee knows, or reasonably should have known,\nis then under contract with Evercore.\n(b) It is expressly understood and agreed that although Employee and Evercore consider the restrictions contained in this Agreement to be\nreasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in\nthis Agreement is an unenforceable restriction against Employee, the provisions of this Agreement shall not be rendered void but shall be deemed\namended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be\nenforceable (provided that in no event shall any such amendment broaden the time period or scope of any restriction herein). Alternatively, if any\ncourt of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as\nto make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.\n(c) For purposes of this Agreement, "Relevant Date" shall mean, when applied during the term of Employee's service with Evercore, the date\nof such application and, when applied following Employee's cessation of service with Evercore, the effective date of that cessation of service.\n3. Intellectual Property.\n(a) If Employee has created, invented, designed, developed, contributed to or improved any inventions, intellectual property, discoveries,\ncopyrightable subject matters or other similar work of intellectual property (including without limitation, research, reports, software, databases,\nsystems or applications, presentations, textual works, content, or audiovisual materials) ("Works"), either alone or with third parties, during\nEmployee's employment prior hereto, that are relevant to or implicated by such employment ("Prior Works"), to the extent\n-4-\nEmployee has retained or does retain any right in such Prior Work, Employee hereby grants Evercore a perpetual, non-exclusive, royalty-free,\nworldwide, assignable, sublicensable license under all rights and intellectual property rights (including rights under patent, industrial property,\ncopyright, trademark, trade secret, unfair competition and related laws) therein to the extent of Employee's rights in such Prior Work for all purposes\nin connection with Evercore's current and future business.\n(b)\nIf Employee creates, invents, designs, develops, contributes to or improves any Works, either alone or with third parties,\nat\nany\ntime\nduring\nEmployee's employment by Evercore and within the scope of such employment and/or with the use of any Evercore resources ("Company Works"),\nEmployee shall promptly and fully disclose same to Evercore and hereby irrevocably assigns, transfers and conveys, to the maximum extent\npermitted by applicable law, and at Evercore's sole expense, all rights and intellectual property rights therein (including rights under patent,\nindustrial property, copyright, trademark, trade secret, unfair competition and related laws) to Evercore to the extent ownership of any such rights\ndoes not vest originally in Evercore.\n(c) Employee agrees to keep and maintain adequate and current written records (in the form of notes, sketches, drawings, and any other form\nor\nmedia requested by Evercore) of all Company Works. The records will be available to and remain the sole property and intellectual property of\nEvercore at all times.\n(d) Employee shall take all requested actions and execute all requested documents (including any licenses or assignments required by a\ngovernment contract) at Evercore's expense (but without further remuneration) to assist Evercore in validating, maintaining, protecting, enforcing,\nperfecting, recording, patenting or registering any of Evercore's rights in the Prior Works and Company Works as set forth in this Section 3.\nIf\nEvercore is unable for any other reason to secure Employee's signature on any document for this purpose, then Employee hereby irrevocably\ndesignates and appoints Evercore and its duly authorized officers and agents as Employee's agent and attorney in fact, to act for and in Employee's\nbehalf and stead to execute any documents and to do all other lawfully permitted acts in connection with the foregoing.\n(e) Except as may otherwise be required under Section 3(a) above, Employee shall not improperly use for the benefit of, bring to any premises\nof, divulge, disclose, communicate, reveal, transfer or provide access to, or share with Evercore any confidential, proprietary or non-public\ninformation or intellectual property relating to a former employer or other third party which Employee knows or reasonably should have known\nis\nconfidential, proprietary or non-public information or intellectual property of such third party without the prior written permission of such third\nparty. Employee hereby indemnifies, holds harmless and agrees to defend Evercore and its officers, directors, partners, employees, agents and\nrepresentatives from any breach of the foregoing covenant. Employee shall comply with all relevant policies and guidelines of Evercore, including\nregarding the protection of confidential information and intellectual property and potential conflicts of interest. Employee acknowledges that\nEvercore may amend any such policies and guidelines from time to time, and that Employee remains at all times bound by their most current\nversion.\n-5-\n(f) The provisions of Section 3 shall survive the termination of Employee's employment for any reason.\n4. Notice of Termination.\n(a) Employee agrees to provide Evercore with not less than 90 days' advance written notice of any resignation of his or her employment;\nprovided, however, that Evercore may in its discretion waive all or part of that notice period.\n(b) During the notice period described above in Section 4(a), Evercore may in its discretion require Employee to cease performing some or all\nof his or her duties and to refrain from entering its places of business, provided that during such notice period, Employee will remain an Evercore\nemployee, will cooperate in the transition of his or her duties to other Evercore personnel and will remain bound by all his or her duties and\nobligations to Evercore, including (without limitation) the obligations stated in this Agreement and the duties and obligations applicable to Employee\nunder common law.\n(c) If Employee fails, in whole or in part, to provide the advance notice of resignation required by this Section 4 and Evercore does not waive\nthat notice period or any unexpired portion thereof (the "Remaining Period"), Evercore will continue to pay Employee's base salary for the\nRemaining Period and the restrictions contained in Section 2(a) above will all be extended by a number of days equal to the duration of the\nRemaining Period. Any base salary continuation otherwise payable under this paragraph will be offset by the amount of any severance or similar\npost-termination compensation paid by Evercore to Employee.\n5. Specific Performance.\nEmployee acknowledges and agrees that in the course of Employee's service to Evercore, Employee will be provided with access to\nConfidential Information, and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other\nagents of Evercore, and Employee further acknowledges that such Confidential Information and relationships are extremely valuable assets of\nEvercore in which Evercore has invested and will continue to invest substantial time, effort and expense. Accordingly, Employee acknowledges\nand\nagrees that Evercore's remedies at law for a breach or threatened breach of any of the provisions of Sections 1, 2, 3 and 4 would be inadequate and,\nin recognition of this fact, Employee agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, Evercore,\nwithout posting any bond, shall be entitled to cease making any payments or providing any benefit otherwise required to be paid or provided\nby\nEvercore (other than any vested benefits under any retirement plan or as may be required by applicable law to be provided), enforce any forfeiture\nprovision applicable to outstanding equity awards, as provided in the applicable award agreements, and seek equitable relief in the form of specific\nperformance, temporary restraining order, temporary or permanent injunction or any other equitable remedy which may then be available; provided,\nhowever, that if it is subsequently determined in a final and binding arbitration or litigation that Employee did not breach any such provision,\nEvercore will promptly pay any payments or provide any benefits which Evercore may have ceased to pay when originally due and payable, plus an\nadditional amount equal to interest (calculated based on the applicable federal rate for the month in which such final\n-6-\ndetermination is made) accrued on the applicable payment or the amount of the benefit, as applicable, beginning from the date such payment or\nbenefit was originally due and payable through the day preceding the date on which such payment or benefit is ultimately paid hereunder.\n6. Miscellaneous.\n(a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard\nto the conflict of laws provisions thereof.\n(b) Entire Agreement/Amendments Except as otherwise provided herein, this Agreement contains the entire understanding of the parties with\nrespect to the subject matter hereof and supersedes any other agreement with respect to the subject matter hereof (including any prior version of this\nConfidentiality, Non-Solicitation and Proprietary Information Agreement). Except as otherwise provided herein, there are no restrictions,\nagreements, promises, warranties, covenants or undertakings between the parties with respect to the subject matter herein other than those expressly\nset forth herein. This Agreement may not be altered, modified, or amended except by written instrument signed by the parties hereto. The foregoing\nnotwithstanding, this Agreement will not supersede changes to the duration of any restrictive covenant and related enforcement provisions included\nin any equity incentive award issued by the Company, even if issued on or prior to the date hereof.\n(c) No Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered\na\nwaiver of such party's rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this\nAgreement.\n(d) Severability.. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in\nany respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby.\n(e) Assignment. This Agreement shall not be assignable by Employee. This Agreement may be assigned by Evercore to a person or entity\nwhich is an affiliate or a successor in interest to substantially all of the business operations of Evercore; provided such person or entity agrees to\nabide by the terms of this Agreement. Upon such assignment in accordance herewith, the rights and obligations of Evercore hereunder shall become\nthe rights and obligations of such affiliate or successor person or entity; provided that in no event shall the provisions of this Agreement be\ninterpreted to apply to the affiliate or the successor person or entity other than with respect to the business of Evercore that is so assigned as of such\ndate (including, without limitation, the business it is engaged in, its employees, clients and its Confidential Information).\n(f)\nSuccessors; Binding Agreement. This Agreement shall inure to the benefit of and be binding upon personal or legal representatives,\nexecutors, administrators, successors, heirs, distributees, devisees and legatees of the parties hereto.\n-7-\n(g) Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures\nthereto and hereto were upon the same instrument.\n[Signature Page Follows]\n-8-\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above.\nEVERCORE PARTNERS SERVICES EAST L.L.C.\nBy:\nName:\nTitle:\nEMPLOYEE\n(Signature)\n(Print Name)\n-9-	EX-10.43 5 d269066dex1043.htm 2012 CONFIDENTIALITY, NON-SOLICITATION AND PROPRIETARY\nINFORMATION AGREEMENT\nExhibit 10.43\nConfidentiality, Non-Solicitation and Proprietary Information Agreement\n(Senior Managing Director)\nThis Confidentiality, Non-Solicitation and Proprietary Information Agreement (the “Agreement”), is made as of the day of\n,\n2012, between Evercore Partners Services East L.L .C. (the “Company”), and the employee signatory hereto (the “Employee”).\nRECITALS:\nWHEREAS, Employee acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates\n(collectively, “Evercore”);\nWHEREAS, Employee acknowledges that he/she will be provided with access to sensitive, proprietary and confidential information of\nEvercore and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other agents of\nEvercore, which, in each case, Employee acknowledges and agrees constitute valuable assets of Evercore; and\nWHEREAS, Employee agrees to be subject to the restrictive covenants as set forth in this Agreement.\nNOW THEREFORE, for good and valuable consideration the parties agree as follows:\n1. Confidentiality.\n(a) Employee will not at any time (whether during or after Employee’s employment with Evercore), other than in the ordinary course of\nperforming services for Evercore, (x) retain or use for the benefit, purposes or account of Employee or any other person, firm, partnership, joint\nventure, association, corporation or other business organization, entity or enterprise whatsoever (“Person”); or (y) disclose, divulge, reveal,\ncommunicate, share, transfer or provide access to any Person outside Evercore (other than its professional advisers who are bound by confidentiality\nobligations), any non-public, proprietary or confidential information obtained by Employee in connection with the commencement of Employee’s\nemployment with Evercore or at any time thereafter during the course of Employee’s employment with Evercore—including without limitation trade\nsecrets, know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual\nproperty, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors,\npersonnel, compensation (excluding Employees’ own compensation), recruiting, training, advertising, sales, marketing, promotions, government and\nregulatory activities and approvals—concerning the past, current or future business activities and operations of Evercore and/or any third party that\nhas disclosed or provided any of the same to Evercore on a confidential basis (provided that with respect to such third party, Employee knows or\nreasonably should have known that the third party provided it to Evercore on a confidential basis) (“Confidential Information”) without the prior\nwritten authorization of the Chief Executive Officer of Evercore Partners Inc.; provided, however, that in any event Employee shall be permitted to\ndisclose any Confidential Information reasonably necessary (i) to perform Employee’s duties while employed with Evercore or (ii) in connection\nwith any litigation or arbitration involving this or any other agreement entered into between Employee and Evercore before, on or after the date of\nthis Agreement in connection with any action or proceeding in respect thereof.\n(b) “Confidential Information” shall not include any information that is (x) generally known to the industry or the public other than as a result\nof Employee’s breach of this covenant or any breach of other confidentiality obligations by third parties to the extent the Employee knows or\nreasonably should have known of such breach by such third parties; (y) made available to Employee by a third party (unless Employee knows or\nreasonably should have known that such third party has breached any confidentiality obligation); or (z) required by law or by any court, arbitrator,\nmediator or administrative or legislative body (including any committee thereof) with actual or apparent jurisdiction to order Employee to disclose or\nmake accessible any information; provided that, with respect to clause (z) Employee, except as otherwise prohibited by law or regulation, shall give\nprompt written notice to Evercore of such requirement, disclose no more information than is so required, and shall reasonably cooperate with any\nattempts by Evercore, at its sole cost, to obtain a protective order or similar treatment prior to making such disclosure.\n(c) Except as required by law or otherwise set forth in clause (z) of Section 1(b) above, or unless or until publicly disclosed by Evercore,\nEmployee will not disclose to anyone, other than Employee’s immediate family and legal, tax or financial advisors, the existence or contents of this\nAgreement; provided that Employee may disclose (i) to any prospective future employer the provisions of this Agreement provided they agree to\nmaintain the confidentiality of such terms or (ii) in connection with any litigation or arbitration involving this Agreement.\n(d) Upon termination of Employee’s employment with Evercore for any reason, Employee shall (x) cease and not thereafter commence use of\nany Confidential Information or intellectual property (including without limitation, any patent, invention, copyright, trade secret, trademark, trade\nname, logo, domain name or other source indicator) if such property is owned or used by Evercore; (y) immediately destroy, delete, or return to\nEvercore, at Evercore’s option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters\nand other data) in Employee’s possession or control (including any of the foregoing stored or located in Employee’s office, home, laptop or other\ncomputer, whether or not Company property) that contain Confidential Information or otherwise relate to the business of Evercore, except that\nEmployee may retain only those portions of any personal notes, notebooks and diaries that do not contain Confidential Information; and (z) notify\nand fully cooperate with Evercore regarding the delivery or destruction of any other Confidential Information of which Employee is or becomes\naware to the extent such information is in Employee’s possession or control. Notwithstanding anything elsewhere to the contrary, Employee shall be\nentitled to retain (and not destroy) (x) information showing Employee’s compensation or relating to reimbursement of expenses that Employee\nreasonably believes is necessary for tax purposes and (y) copies of plans, programs, policies and arrangements of, or other agreements with,\nEvercore addressing Employee’s compensation or Employee’s employment or termination thereof.\n-2-\n2. Non-Competition; Non-Solicitation; Non-Interference.\n(a) Without limiting any duty or obligation otherwise applicable to Employee, Employee agrees as follows:\n(i) Non-Competition. During Employee’s service with Evercore, Employee will not, directly or indirectly:\n(A) engage in any business that competes with the business of Evercore (including, without limitation, any businesses that\nEvercore is then actively considering conducting, so long as Employee knows or reasonably should know of such plan(s)) in any geographical area\nthat is within 100 miles of any geographical area where Evercore provides its products or services (a “Competitive Business”);\n(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person)\nwho or which is a Competitive Business; or\n(C) subject to the terms of Evercore’s employee investments policy applicable to Employee from time to time, acquire a financial\ninterest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder,\nofficer, director, principal, agent, trustee or consultant.\nNotwithstanding the provisions of Section 2(a)(i)(A), (B) or (C) above, nothing contained in this Section 2(a)(i) shall prohibit Employee from\ninvesting, as a passive investor, in any publicly held company provided that Employee’s beneficial ownership of any class of such publicly held\ncompany’s securities does not exceed two percent (2%) of the outstanding securities of such class.\n(ii) Non-Solicitation of Clients. During Employee’s service with Evercore and the six-month period immediately following cessation of\nthat service for any reason, Employee will not, whether on Employee’s own behalf or on behalf of or in conjunction with any Person, directly or\nindirectly solicit or assist in soliciting the business of, any investment from, any opportunity to make an investment in, or any opportunity to act as a\nfinancial, restructuring or asset management advisor in connection with any transaction involving, any client, prospective client, investor, portfolio\ncompany or prospective portfolio company, or member of management of any portfolio company or prospective portfolio company of Evercore\n(collectively, the “Clients”):\n(A) with whom Employee had personal contact or dealings on behalf of Evercore during the two-year period immediately\npreceding the Relevant Date;\n(B) with whom employees reporting to Employee have had personal contact or dealings on behalf of Evercore during the two-\nyear period immediately preceding the Relevant Date; or\n(C) with respect to which Employee had direct or indirect responsibility during the two-year period immediately preceding the\nRelevant Date.\n-3-\n(iii) Non-Interference with Business Relationships. During Employee’s service with Evercore and the six-month period immediately\nfollowing cessation of that service for any reason, Employee will not interfere with, or attempt to interfere with, business relationships (whether\nformed before, on or after the date of this Agreement) between Evercore, on the one hand, and any Client, customers, suppliers, partners, of\nEvercore, on the other hand.\n(iv) Non-Solicitation of Employees; Non-Solicitation of Consultants. During Employee’s service with Evercore and the 12-month period\nimmediately following cessation of that service for any reason, Employee will not, whether on Employee’s own behalf or on behalf of or in\nconjunction with any Person, directly or indirectly (other than in the ordinary course of Employee’s employment with Evercore and on Evercore’s\nbehalf):\n(A) solicit or encourage any employee of Evercore to leave the employment of Evercore; or\n(B) hire any such employee who was employed by Evercore as of the date of Employee’s termination of employment with\nEvercore or who left the employment of Evercore coincident with, or within six months prior to or after, the termination of Employee’s employment\nwith Evercore; or\n(C) solicit or encourage to cease to work with Evercore any consultant that Employee knows, or reasonably should have known,\nis then under contract with Evercore.\n(b) It is expressly understood and agreed that although Employee and Evercore consider the restrictions contained in this Agreement to be\nreasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in\nthis Agreement is an unenforceable restriction against Employee, the provisions of this Agreement shall not be rendered void but shall be deemed\namended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be\nenforceable (provided that in no event shall any such amendment broaden the time period or scope of any restriction herein). Alternatively, if any\ncourt of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as\nto make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.\n(c) For purposes of this Agreement, “Relevant Date” shall mean, when applied during the term of Employee’s service with Evercore, the date\nof such application and, when applied following Employee’s cessation of service with Evercore, the effective date of that cessation of service.\n3. Intellectual Property.\n(a) If Employee has created, invented, designed, developed, contributed to or improved any inventions, intellectual property, discoveries,\ncopyrightable subject matters or other similar work of intellectual property (including without limitation, research, reports, software, databases,\nsystems or applications, presentations, textual works, content, or audiovisual materials) (“Works”), either alone or with third parties, during\nEmployee’s employment prior hereto, that are relevant to or implicated by such employment (“Prior Works”), to the extent\n-4-\nEmployee has retained or does retain any right in such Prior Work, Employee hereby grants Evercore a perpetual, non-exclusive, royalty-free,\nworldwide, assignable, sublicensable license under all rights and intellectual property rights (including rights under patent, industrial property,\ncopyright, trademark, trade secret, unfair competition and related laws) therein to the extent of Employee’s rights in such Prior Work for all purposes\nin connection with Evercore’s current and future business.\n(b) If Employee creates, invents, designs, develops, contributes to or improves any Works, either alone or with third parties, at any time during\nEmployee’s employment by Evercore and within the scope of such employment and/or with the use of any Evercore resources (“Company Works”),\nEmployee shall promptly and fully disclose same to Evercore and hereby irrevocably assigns, transfers and conveys, to the maximum extent\npermitted by applicable law, and at Evercore’s sole expense, all rights and intellectual property rights therein (including rights under patent,\nindustrial property, copyright, trademark, trade secret, unfair competition and related laws) to Evercore to the extent ownership of any such rights\ndoes not vest originally in Evercore.\n(c) Employee agrees to keep and maintain adequate and current written records (in the form of notes, sketches, drawings, and any other form\nor media requested by Evercore) of all Company Works. The records will be available to and remain the sole property and intellectual property of\nEvercore at all times.\n(d) Employee shall take all requested actions and execute all requested documents (including any licenses or assignments required by a\ngovernment contract) at Evercore’s expense (but without further remuneration) to assist Evercore in validating, maintaining, protecting, enforcing,\nperfecting, recording, patenting or registering any of Evercore’s rights in the Prior Works and Company Works as set forth in this Section 3. If\nEvercore is unable for any other reason to secure Employee’s signature on any document for this purpose, then Employee hereby irrevocably\ndesignates and appoints Evercore and its duly authorized officers and agents as Employee’s agent and attorney in fact, to act for and in Employee’s\nbehalf and stead to execute any documents and to do all other lawfully permitted acts in connection with the foregoing.\n(e) Except as may otherwise be required under Section 3(a) above, Employee shall not improperly use for the benefit of, bring to any premises\nof, divulge, disclose, communicate, reveal, transfer or provide access to, or share with Evercore any confidential, proprietary or non-public\ninformation or intellectual property relating to a former employer or other third party which Employee knows or reasonably should have known is\nconfidential, proprietary or non-public information or intellectual property of such third party without the prior written permission of such third\nparty. Employee hereby indemnifies, holds harmless and agrees to defend Evercore and its officers, directors, partners, employees, agents and\nrepresentatives from any breach of the foregoing covenant. Employee shall comply with all relevant policies and guidelines of Evercore, including\nregarding the protection of confidential information and intellectual property and potential conflicts of interest. Employee acknowledges that\nEvercore may amend any such policies and guidelines from time to time, and that Employee remains at all times bound by their most current\nversion.\n-5-\n(f) The provisions of Section 3 shall survive the termination of Employee’s employment for any reason.\n4. Notice of Termination.\n(a) Employee agrees to provide Evercore with not less than 90 days’ advance written notice of any resignation of his or her employment;\nprovided, however, that Evercore may in its discretion waive all or part of that notice period.\n(b) During the notice period described above in Section 4(a), Evercore may in its discretion require Employee to cease performing some or all\nof his or her duties and to refrain from entering its places of business, provided that during such notice period, Employee will remain an Evercore\nemployee, will cooperate in the transition of his or her duties to other Evercore personnel and will remain bound by all his or her duties and\nobligations to Evercore, including (without limitation) the obligations stated in this Agreement and the duties and obligations applicable to Employee\nunder common law.\n(c) If Employee fails, in whole or in part, to provide the advance notice of resignation required by this Section 4 and Evercore does not waive\nthat notice period or any unexpired portion thereof (the “Remaining Period”), Evercore will continue to pay Employee’s base salary for the\nRemaining Period and the restrictions contained in Section 2(a) above will all be extended by a number of days equal to the duration of the\nRemaining Period. Any base salary continuation otherwise payable under this paragraph will be offset by the amount of any severance or similar\npost-termination compensation paid by Evercore to Employee.\n5. Specific Performance.\nEmployee acknowledges and agrees that in the course of Employee’s service to Evercore, Employee will be provided with access to\nConfidential Information, and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other\nagents of Evercore, and Employee further acknowledges that such Confidential Information and relationships are extremely valuable assets of\nEvercore in which Evercore has invested and will continue to invest substantial time, effort and expense. Accordingly, Employee acknowledges and\nagrees that Evercore’s remedies at law for a breach or threatened breach of any of the provisions of Sections 1, 2, 3 and 4 would be inadequate and,\nin recognition of this fact, Employee agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, Evercore,\nwithout posting any bond, shall be entitled to cease making any payments or providing any benefit otherwise required to be paid or provided by\nEvercore (other than any vested benefits under any retirement plan or as may be required by applicable law to be provided), enforce any forfeiture\nprovision applicable to outstanding equity awards, as provided in the applicable award agreements, and seek equitable relief in the form of specific\nperformance, temporary restraining order, temporary or permanent injunction or any other equitable remedy which may then be available; provided,\nhowever, that if it is subsequently determined in a final and binding arbitration or litigation that Employee did not breach any such provision,\nEvercore will promptly pay any payments or provide any benefits which Evercore may have ceased to pay when originally due and payable, plus an\nadditional amount equal to interest (calculated based on the applicable federal rate for the month in which such final\n-6-\ndetermination is made) accrued on the applicable payment or the amount of the benefit, as applicable, beginning from the date such payment or\nbenefit was originally due and payable through the day preceding the date on which such payment or benefit is ultimately paid hereunder.\n6. Miscellaneous.\n(a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard\nto the conflict of laws provisions thereof.\n(b) Entire Agreement/Amendments. Except as otherwise provided herein, this Agreement contains the entire understanding of the parties with\nrespect to the subject matter hereof and supersedes any other agreement with respect to the subject matter hereof (including any prior version of this\nConfidentiality, Non-Solicitation and Proprietary Information Agreement). Except as otherwise provided herein, there are no restrictions,\nagreements, promises, warranties, covenants or undertakings between the parties with respect to the subject matter herein other than those expressly\nset forth herein. This Agreement may not be altered, modified, or amended except by written instrument signed by the parties hereto. The foregoing\nnotwithstanding, this Agreement will not supersede changes to the duration of any restrictive covenant and related enforcement provisions included\nin any equity incentive award issued by the Company, even if issued on or prior to the date hereof.\n(c) No Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a\nwaiver of such party’s rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this\nAgreement.\n(d) Severability. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in\nany respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby.\n(e) Assignment. This Agreement shall not be assignable by Employee. This Agreement may be assigned by Evercore to a person or entity\nwhich is an affiliate or a successor in interest to substantially all of the business operations of Evercore; provided such person or entity agrees to\nabide by the terms of this Agreement. Upon such assignment in accordance herewith, the rights and obligations of Evercore hereunder shall become\nthe rights and obligations of such affiliate or successor person or entity; provided that in no event shall the provisions of this Agreement be\ninterpreted to apply to the affiliate or the successor person or entity other than with respect to the business of Evercore that is so assigned as of such\ndate (including, without limitation, the business it is engaged in, its employees, clients and its Confidential Information).\n(f) Successors; Binding Agreement. This Agreement shall inure to the benefit of and be binding upon personal or legal representatives,\nexecutors, administrators, successors, heirs, distributees, devisees and legatees of the parties hereto.\n-7-\n(g) Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures\nthereto and hereto were upon the same instrument.\n[Signature Page Follows]\n-8-\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above.\nEVERCORE PARTNERS SERVICES EAST L.L.C.\nBy:\nName:\nTitle:\nEMPLOYEE\n(Signature)\n(Print Name)\n-9-
+2b6c4aec04d54e5209ce1a38d854f9a5.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 14 d377383dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIAL\nApril 11, 2012\nOne Equity Partners IV, L.P.\n320 Park Avenue, 18 Floor\nNew York, NY 10022\nAttention:\nGregory A. Belinfanti\nLadies and Gentlemen:\nOne Equity Partners IV, L.P. (“you” or “your”) has requested certain non-public, proprietary information from MModal Inc. (formerly known\nas MedQuist Holdings, Inc.) (together with its wholly-owned subsidiaries, the “Company”) in connection with your consideration of a possible\nnegotiated transaction between you and the Company (a “Transaction”). While this letter agreement (this “Agreement”) does not require the\nCompany to furnish such information, or you to receive it, this Agreement shall govern such information as may be provided or otherwise made\navailable by the Company.\n1. Confidentiality.\n(a) You agree to keep all Evaluation Material (as defined below) confidential and to use the Evaluation Material only for the purpose of\nevaluating or consummating a possible Transaction; provided, however, that (i) Evaluation Material may be disclosed to those of your officers,\ndirectors, employees, accountants, counsel, investment bankers, consultants, financial advisors, agents, individuals at affiliates who receive\nEvaluation Material from you and, solely with the prior written consent of the Company (which may be withheld at the Company’s sole discretion),\ndebt financing sources disclosed to the Company (such persons referred to in this clause (i) who receive Evaluation Material in their capacity as such\nbeing generally referred to herein as “Representatives”), in each case who need to know such information for the purpose of assisting you in your\nevaluation or consummation of a Transaction so long as you use commercially reasonable efforts to cause your Representatives to treat the\nEvaluation Material in a confidential manner and in accordance with the terms hereof, (ii) any disclosure of the Evaluation Material may be made to\nwhich the Company consents in writing and (iii) any disclosure of the Evaluation Material may be made to the extent expressly permitted by\nSection 1(d). You will be responsible for any breach of the terms of this Agreement by any of your Representatives other than any of your\nRepresentatives who enter into a separate confidentiality agreement with the Company on or after the date hereof. For purposes of this Agreement,\n“Evaluation Material” means non-public information regarding the Company or third parties that the Company or its Representatives furnish or\notherwise make available to you or your Representatives, whether on or after the date of this Agreement, and whether oral, written or electronic,\ntogether with any reports, analyses, compilations, forecasts, memoranda, notes, studies, interpretations and any other oral, written or electronic\nmaterials prepared by or for you or your Representatives to the extent that they contain, reflect or are based upon, in whole or in\nth\npart, such information. Notwithstanding the foregoing, the term “Evaluation Material” does not include information that (A) was or becomes\navailable to you or your Representatives from a source other than the Company or its Representatives provided such other source is not known by\nyou or your Representatives to be bound by a confidentiality obligation to the Company or (B) was or becomes generally available to the public\n(other than as a result of a violation by you or your Representatives of this Agreement) or (C) was independently developed or created by you or\nyour Representatives without use of or reference to any Evaluation Material provided by the Company or violation of your obligations hereunder.\nNotwithstanding anything to the contrary in this Agreement, none of the provisions of this Agreement shall apply to any of your affiliates who do\nnot receive Evaluation Material; provided, that should Evaluation Material be made available by you or any of your Representatives to (i) any\ndirector, officer or employee of any of your affiliated portfolio companies, you will arrange for such portfolio companies to enter into a separate\nagreement with terms substantially similar hereto with the Company, (ii) any of OEP Parent LLC’s (“OEP Parent”) controlled affiliated investment\nentities, such entities shall be bound by this Agreement in accordance with its terms or (iii) any individual at your affiliates (other than your affiliated\nportfolio companies or any of OEP Parent’s controlled affiliated investment entities), the individuals at such affiliates who have received Evaluation\nMaterial from you shall be bound by this Agreement in accordance with its terms.\n(b) You agree that neither you nor any of your Representatives will, without the prior written consent of the Company, directly or indirectly,\ndisclose to any other person (excluding your Representatives) (i) the fact that discussions or negotiations may take place, are taking place or have\ntaken place concerning a possible Transaction or any of the terms or other facts relating thereto, including the status thereof, (ii) the existence or the\nterms of this Agreement or (iii) that you or your Representatives have received or produced any Evaluation Material; provided, however, that you or\nyour Representatives may make such disclosure to the extent expressly permitted by Section 1(d).\n(c) It is understood that all requests by you and your Representatives for information, facility tours or management meetings and discussions or\nquestions regarding procedures in connection with your evaluation of a Transaction, will be submitted or directed to Alicia Ciccone\n(alicia.ciccone@macquarie.com, +1(212) 231-1811) at Macquarie Capital (USA) Inc. (“Macquarie”). You also agree that, without the prior express\nconsent of the Company, you will not (and you will use commercially reasonable efforts to cause your Representatives not to) initiate or maintain\ncontact (except for those contacts made in the ordinary course of business unrelated to the possible Transaction) with any person or entity that, to\nyour knowledge, is (i) an officer, director, employee, consultant or agent of the Company regarding a Transaction, participation in a Transaction or\nthe Company’s business, operations, prospects or finances or (ii) a supplier, distributor, broker or customer of the Company regarding the Company\nor the business operations, assets, prospects or finances of the Company. It is understood that Macquarie will arrange for all contacts for due\ndiligence purposes in connection with your evaluation of a Transaction.\n(d) In the event that you or any of your Representatives are requested or required to disclose any Evaluation Material in connection with any\nlaw, rule or regulation, or by any judicial or administrative proceedings (by oral questions, interrogatories, requests for information or documents,\nsubpoena, civil investigation demand or similar process), you will\n2\nprovide the Company with prompt notice, to the extent legally permissible, of such request or requirement(s). You also agree, to the extent legally\npermissible and reasonably practicable, to provide the Company, in advance of any such disclosure, with a list of any Evaluation Material you intend\nto disclose (and, if applicable, the text of the disclosure language itself) and to cooperate with the Company, at the Company’s sole expense, to the\nextent the Company may seek to limit such disclosure, including, if requested, taking all reasonable steps to resist or avoid any such judicial or\nadministrative proceedings referred to above. If and to the extent, in the absence of a protective order or the receipt of a waiver from the Company ,\nyou or your Representatives are legally required as advised by counsel in writing to disclose Evaluation Material to any tribunal, you will use\nreasonable efforts to obtain assurances that confidential treatment will be accorded to any Evaluation Material that you are so required to disclose\nand thereafter you or your Representatives may disclose such information without liability hereunder. Notwithstanding the foregoing, no such notice\nshall be required in respect of disclosures of the Evaluation Material to financial regulatory authorities having jurisdiction over you or your\nRepresentatives, unless the requests by such regulatory authorities are specifically targeted at the Evaluation Material, the Company or the\nTransaction; provided, that you or your Representatives shall advise such financial regulatory authority of the confidential nature of such Evaluation\nMaterial.\n(e) Upon the written request of the Company, you will (and you will cause your Representatives to) promptly deliver to the Company or, at\nyour option, destroy, all copies of the Evaluation Material, without retaining any copy thereof, including, to the extent practicable, expunging all\nsuch Evaluation Material from any computer, word processor or other device containing such information. If requested by the Company, an\nappropriate officer of yours will certify to the Company that all such material has been so delivered or destroyed. Notwithstanding the foregoing, you\nand your Representatives may retain Evaluation Material (i) to the extent it is “backed-up” on your or their (as the case may be) electronic\ninformation management and communications systems or servers, and is not available to an end user and (ii) in accordance with applicable law, rule,\nregulation, professional standards and your and your Representatives’ respective bona fide document retention policies. Any and all duties and\nobligations existing under this Agreement shall remain in full force and effect until this Agreement is terminated in accordance with Section 9(a),\nnotwithstanding the delivery or destruction of the Evaluation Material required by this Section 1(e). You also agree to notify us promptly upon your\ndetermination to cease to consider a Transaction.\n(f) To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or government investigations, you understand and agree that the parties\nhave a commonality of legal interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege or other applicable privilege. All Evaluation Material furnished by the Company or its Representatives that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these\nprivileges, this Agreement, and under the common legal interest and joint defense doctrine, and the parties agree to take commercially reasonable\nefforts to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n3\n2. No Other Discussions or Arrangements. You represent that neither you nor any of your Representatives acting at your direction or on your\nbehalf have directly or indirectly contacted or entered into any discussions, agreements or understandings with any person (other than any of your\nRepresentatives) with respect to a Transaction, including the provision of debt or equity financing with respect thereto. You agree that, during the\nStandstill Period (as defined below), neither you nor any of your Representatives acting at your direction or on your behalf will, without the prior\nwritten consent of the Company, directly or indirectly contact or enter into any discussions, agreements or understandings with any person (other\nthan any of your Representatives) with respect to a Transaction, including the provision of debt or equity financing with respect thereto. You further\nrepresent that you and your Representatives acting at your direction or on your behalf are not a party to, and you further agree that during the\nStandstill Period you and your Representatives acting at your direction or on your behalf will not enter into, any agreement or understanding with\nany person (including, without limitation, any of your Representatives) that would directly or indirectly restrict the ability of any other person to\nprovide financing (debt, equity or otherwise) to any other person relating to the Transaction.\n3. Standstill.\n(a) In consideration for being furnished with the Evaluation Material, you agree that during the Standstill Period, unless the board of directors\nof the Company (the “Board of Directors”) shall otherwise specifically request in writing in advance, you shall not, and shall cause your (i) directors,\nofficers, employees and (ii) individuals at your affiliates and individuals at your outside Representatives who have received Evaluation Material\nfrom you and are acting at your direction or on your behalf in connection with a possible Transaction, not to (and you and such persons will not\nassist or form a group within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), act in\nconcert or participate with or encourage other persons to), directly or indirectly, (A) acquire or offer to acquire, seek, propose or agree to acquire, by\nmeans of a purchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of any assets, businesses or\nsecurities of MModal Inc., or any option, warrant, convertible security, stock appreciation right or other right to acquire such ownership, including\nthrough any swap agreement or other security, contract right or derivative position, whether or not presently exercisable, that has an exercise or\nconversion privilege or a settlement payment or mechanism at a price related to the value of the common stock of the MModal Inc.or a value\ndetermined in whole or part with reference to, or derived in whole or in part from, the value of the common stock of the MModal Inc. and that\nincreases in value as the value of the common stock of the MModal Inc. increases or that provides to the holder an opportunity, directly or indirectly,\nto profit or share in any profit derived from any increase in the value of the common stock of the MModal Inc. (collectively, “MModal Inc.\nInterests”), (B) seek or propose to influence, advise, change or control the management, Board of Directors, governing instruments, policies or\naffairs of the MModal Inc., including, without limitation, by means of soliciting or participating in the solicitation of any proxies, (as such terms are\ndefined in Rule 14a-1 of Regulation 14A promulgated pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule 14a-1(l)(2) and\nincluding any otherwise exempt solicitation pursuant to Rule 14a-2(b)), contacting any person relating to any of the matters set forth in this\nAgreement (except as otherwise expressly agreed herein) or seeking to influence, advise or direct the vote of any holder of voting securities of the\nMModal Inc. or its affiliates or making a request to amend or waive this provision or any other provision\n4\nof this Section 3 of this Agreement or (C) make any public disclosure, or take any action that would be reasonably likely to require the MModal Inc.\nto make any public disclosure, with respect to any of the matters set forth in this Agreement. You represent to the MModal Inc. that you do not own\n(including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) any MModal Inc. Interests as of the date\nhereof. For the avoidance of doubt, the foregoing provisions of this paragraph shall not prohibit activities of any your subsidiaries or affiliates in the\nordinary course of their respective businesses (“permitted activities”) provided that (i) the individuals working on such permitted activities\n(excluding the members of any investment, management or similar committee whose approval is required in connection with your evaluation and\nconsummation of a Transaction) have not received the Evaluation Material and are not aware (x) of the fact that discussions or negotiations may take\nplace, are taking place or have taken place concerning a possible Transaction or any of the terms or other facts relating thereto, including the status\nthereof, (y) of the existence or the terms of this Agreement or (z) that you or your Representatives have received or produced any Evaluation\nMaterial in connection with the Transaction, (ii) appropriate “information barriers” with respect to the Evaluation Material are established between\nindividuals who are working on behalf of you and your Representatives to whom Evaluation Material is disclosed hereunder and those individuals\nwho engage in permitted activities, (iii) such permitted activities are conducted only in accordance with the policies and procedures governing such\ninformation barriers and with applicable law, and (iv) the individuals engaging in permitted activities are not acting at the direction of you or any\nindividuals of your Representatives to whom Evaluation Material has been disclosed hereunder.\n(b) “Standstill Period” for purposes of this Agreement shall mean a period of one (1) year following the date of this Agreement.\n4. Non-Solicitation and No-Hire of Employees. During the Standstill Period, you agree that you will not, and you will direct individuals at\nyour Representatives not to on your behalf, directly or indirectly, hire or solicit any officer of the Company or other employee of the Company with\nwhom you or individuals at your Representatives acting at your direction or on your behalf, had contact in connection with your consideration of a\nTransaction or about whom you or individuals at your Representatives acting at your direction or on your behalf have received information in\nconnection with your consideration of a Transaction, other than a person who has not been an employee of the Company for at least 90 days and\nwhom neither you nor any of individuals at your Representatives acting at your direction or on your behalf, directly or indirectly solicited; provided,\nthat nothing in this Section 4 shall apply to any employee who contacts you on his or her own initiative or who responds to general mass solicitations\nof employment and generalized employee searches by headhunter/search firms (in either case not focused specifically on or directed in any way at\nsuch employees of the Company).\n5. No Representations or Warranties. You understand and agree that neither the Company nor any of its Representatives makes any\nrepresentation or warranty, express or implied, on which you or your Representatives may rely as to the accuracy or completeness of the Evaluation\nMaterial for your or your Representatives’ purposes and that only those representations and warranties made by us in writing in a subsequent\ndefinitive agreement with you related to a Transaction, if any, shall have any legal effect. You agree that other than as may be set forth in such\ndefinitive agreement neither the Company nor its Representatives shall have\nany liability whatsoever to you or any of your Representatives, including, without limitation, in contract, tort or under federal or state securities laws,\nrelating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom.\n5\n6. No Obligation. It is understood and agreed that unless and until there is a definitive agreement between us with respect to a Transaction,\nneither the Company nor you intends to be, nor shall either of you or the Company be, under any legal obligation of any kind whatsoever with\nrespect to such Transaction or otherwise, by virtue of any written or oral expressions by our respective Representatives with respect to such\nTransaction, except for the matters specifically agreed to in this Agreement.\n7. Equitable Relief. The Company, without prejudice to any rights to judicial relief it may otherwise have, shall be entitled to seek equitable\nrelief, including injunction and/or specific performance, in the event of any breach of the provisions of this Agreement. You agree that you will not\noppose the granting of such relief on the basis that the Company has an adequate remedy at law and that assuming the injunctive relief is obtained\nyou will pay any reasonable fees that the Company may incur in enforcing this Agreement. You also agree that you will not seek and agree to waive\nany requirement for the securing or posting of a bond in connection with the Company’s seeking or obtaining such relief. You acknowledge that the\nEvaluation Material is valuable and unique and that any disclosure thereof in breach of this Agreement may result in irreparable injury to the\nCompany.\n8. Compliance with Law.\n(a) You hereby confirm that you are aware and that individuals at your Representatives acting at your direction or on your behalf have been\nadvised (through policy manuals or otherwise) that the United States securities laws prohibit any person who has material non-public information\nabout a company from purchasing or selling securities of such company or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person may purchase or sell such securities in reliance upon such information.\n(b) You hereby confirm that you and individuals at your affiliates who receive Evaluation Material from you under this Agreement, will (and\nyou and they will use commercially reasonable efforts to cause individuals at your respective Representatives acting at your direction or on your\nbehalf to) take action as reasonable and appropriate to prevent the use by you and them of any Evaluation Material about the Company in a way that\nwould reasonably be expected to violate any antitrust or federal or state securities laws in reliance upon such information.\n9. Miscellaneous.\n(a) Each party’s obligations under this Agreement expire upon the earlier of (i) 18 months after the date of this Agreement, and (ii) the\ncompletion of a Transaction with you.\n(b) The term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any corporation,\ncompany, group, partnership, trust, governmental entity or individual. The term “affiliate” as used in this Agreement shall have the meaning ascribed\nto such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.\n6\n(c) It is agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege.\n(d) It is understood and agreed that if any provision contained in this Agreement or the application thereof to you, the Company, or any other\nperson or circumstance shall be invalid, illegal or unenforceable in any respect under any applicable law as determined by a court of competent\njurisdiction, the validity, legality and enforceability of the remaining provisions contained in this Agreement, or the application of such provision to\nsuch persons or circumstances other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in\nno way be affected, impaired or invalidated thereby. In the case of any such invalidity, illegality or unenforceability, a suitable and equitable\nprovision shall be substituted therefore in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or\nunenforceable provision.\n(e) This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York, without regard to any\nconflict of laws principles.\n(f) Each party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement\nexclusively in the United States District Court for the Southern District of New York or any New York State court sitting in New York City (the\n“Chosen Courts”), and solely in connection with claims arising under this Agreement (i) irrevocably submits to the exclusive jurisdiction of the\nChosen Courts, (ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (iii) waives any objection that the\nChosen Courts are an inconvenient forum or do not have jurisdiction over any party hereto and (iv) agrees that service of process upon such party in\nany such action or proceeding shall be effective if notice is given in accordance with Section 9(g) of this Agreement. Each party hereto irrevocably\nwaives any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement. Each of the parties hereto agrees that a\nfinal judgment in any lawsuit, action or other proceeding arising out of or relating to this Agreement brought in the courts referred to in the first\nsentence of this Section 9(f) shall be conclusive and binding upon each of the parties hereto and may be enforced in any other courts the jurisdiction\nof which each of the parties is or may be subject, by suit upon such judgment.\n(g) Any notice hereunder shall be made in writing by overnight courier, personal delivery, facsimile or email (if telephonically confirmed), in\neach case to:\nIf to the Company:\nMModal Inc.\n9009 Carothers Parkway\nFranklin, Tennessee 37067\nAttention: General Counsel\nFacsimile: 866-796-5127\nTelephone: 615-261-1740\nEmail: mark.sullivan@mmodal.com\n7\nIf to you:\nOne Equity Partners IV, L.P.\n320 Park Avenue, 18 Floor\nNew York, NY 10022\nAttention: Gregory A. Belinfanti\nManaging Director\nFacsimile: 212-277-1586\nTelephone: 212-277-1530\nEmail: gregory.a.belinfanti@oneequity.com\nWith a copy to:\nJPMorgan Chase & Co.—Legal Dept.\n270 Park Avenue, 38th Floor\nNew York, New York 10017\nAttention: Elizabeth De Guzman\nVice President & Assistant General Counsel\nTelephone: 212-270-7690\nFacsimile: 646-792-3771\nE-mail: elizabeth.deguzman@jpmorgan.com\n(h) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior\nagreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof. This Agreement shall be\nbinding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any assignment of this Agreement\nby you without the prior written consent of the Company shall be void. The Company may assign this Agreement and/or the benefits hereunder to\none or more purchasers of all or a portion of the capital stock or assets of the Company.\n(i) This Agreement may only be amended by a separate writing signed by the Company and you expressly so amending this Agreement. Any\nprovision of this Agreement may be waived by the party entitled to the benefit thereof, if in writing and signed by the party entitled to the benefit\nthereof.\n(j) This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which shall\nconstitute one and the same Agreement.\n[The remainder of this page is intentionally left blank.]\n8\nth\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this Agreement, whereupon this Agreement\nwill constitute our agreement with respect to the subject matter hereof.\nVery truly yours,\nMMODAL INC.\nBy: /s/ Matthew Reid Jenkins\nName: Matthew Reid Jenkins\nTitle: SVP\nCONFIRMED AND AGREED TO:\nONE EQUITY PARTNERS IV, L.P.\nBy: OEP General Partner IV, L.P.,\nas General Partner\nBy: OEP Parent LLC,\nas General Partner\nBy: /s/ Gregory A. Belinfanti\nName: Gregory A. Belinfanti\nTitle: Managing Director	EX-99.(D)(3) 14 d377383dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIAL\nApril 11, 2012\nOne Equity Partners IV, L.P.\n320 Park Avenue, 18t Floor\nNew York, NY 10022\nAttention: Gregory A. Belinfanti\nLadies and Gentlemen:\nOne Equity Partners IV, L.P. (“you” or “your”) has requested certain non-public, proprietary information from MModal Inc. (formerly known\nas MedQuist Holdings, Inc.) (together with its wholly-owned subsidiaries, the “Company”) in connection with your consideration of a possible\nnegotiated transaction between you and the Company (a “Transaction”). While this letter agreement (this “Agreement”) does not require the\nCompany to furnish such information, or you to receive it, this Agreement shall govern such information as may be provided or otherwise made\navailable by the Company.\n \n1. Confidentiality.\n(a) You agree to keep all Evaluation Material (as defined below) confidential and to use the Evaluation Material only for the purpose of\nevaluating or consummating a possible Transaction; provided, however, that (i) Evaluation Material may be disclosed to those of your officers,\ndirectors, employees, accountants, counsel, investment bankers, consultants, financial advisors, agents, individuals at affiliates who receive\nEvaluation Material from you and, solely with the prior written consent of the Company (which may be withheld at the Company’s sole discretion),\ndebt financing sources disclosed to the Company (such persons referred to in this clause (i) who receive Evaluation Material in their capacity as such\nbeing generally referred to herein as “Representatives”), in each case who need to know such information for the purpose of assisting you in your\nevaluation or consummation of a Transaction so long as you use commercially reasonable efforts to cause your Representatives to treat the\nEvaluation Material in a confidential manner and in accordance with the terms hereof, (ii) any disclosure of the Evaluation Material may be made to\nwhich the Company consents in writing and (iii) any disclosure of the Evaluation Material may be made to the extent expressly permitted by\nSection 1(d). You will be responsible for any breach of the terms of this Agreement by any of your Representatives other than any of your\nRepresentatives who enter into a separate confidentiality agreement with the Company on or after the date hereof. For purposes of this Agreement,\n“Evaluation Material” means non-public information regarding the Company or third parties that the Company or its Representatives furnish or\notherwise make available to you or your Representatives, whether on or after the date of this Agreement, and whether oral, written or electronic,\ntogether with any reports, analyses, compilations, forecasts, memoranda, notes, studies, interpretations and any other oral, written or electronic\nmaterials prepared by or for you or your Representatives to the extent that they contain, reflect or are based upon, in whole or in\npart, such information. Notwithstanding the foregoing, the term “Evaluation Material” does not include information that (A) was or becomes\navailable to you or your Representatives from a source other than the Company or its Representatives provided such other source is not known by\nyou or your Representatives to be bound by a confidentiality obligation to the Company or (B) was or becomes generally available to the public\n(other than as a result of a violation by you or your Representatives of this Agreement) or (C) was independently developed or created by you or\nyour Representatives without use of or reference to any Evaluation Material provided by the Company or violation of your obligations hereunder.\nNotwithstanding anything to the contrary in this Agreement, none of the provisions of this Agreement shall apply to any of your affiliates who do\nnot receive Evaluation Material; provided, that should Evaluation Material be made available by you or any of your Representatives to (i) any\ndirector, officer or employee of any of your affiliated portfolio companies, you will arrange for such portfolio companies to enter into a separate\nagreement with terms substantially similar hereto with the Company, (ii) any of OEP Parent LLC’s (“OEP Parent”) controlled affiliated investment\nentities, such entities shall be bound by this Agreement in accordance with its terms or (iii) any individual at your affiliates (other than your affiliated\nportfolio companies or any of OEP Parent’s controlled affiliated investment entities), the individuals at such affiliates who have received Evaluation\nMaterial from you shall be bound by this Agreement in accordance with its terms.\n(b) You agree that neither you nor any of your Representatives will, without the prior written consent of the Company, directly or indirectly,\ndisclose to any other person (excluding your Representatives) (i) the fact that discussions or negotiations may take place, are taking place or have\ntaken place concerning a possible Transaction or any of the terms or other facts relating thereto, including the status thereof, (ii) the existence or the\nterms of this Agreement or (iii) that you or your Representatives have received or produced any Evaluation Material; provided, however, that you or\nyour Representatives may make such disclosure to the extent expressly permitted by Section 1(d).\n(c) It is understood that all requests by you and your Representatives for information, facility tours or management meetings and discussions or\nquestions regarding procedures in connection with your evaluation of a Transaction, will be submitted or directed to Alicia Ciccone\n(alicia.ciccone@macquarie.com, +1(212) 231-1811) at Macquarie Capital (USA) Inc. (“Macquarie”). You also agree that, without the prior express\nconsent of the Company, you will not (and you will use commercially reasonable efforts to cause your Representatives not to) initiate or maintain\ncontact (except for those contacts made in the ordinary course of business unrelated to the possible Transaction) with any person or entity that, to\nyour knowledge, is (i) an officer, director, employee, consultant or agent of the Company regarding a Transaction, participation in a Transaction or\nthe Company’s business, operations, prospects or finances or (ii) a supplier, distributor, broker or customer of the Company regarding the Company\nor the business operations, assets, prospects or finances of the Company. It is understood that Macquarie will arrange for all contacts for due\ndiligence purposes in connection with your evaluation of a Transaction.\n(d) In the event that you or any of your Representatives are requested or required to disclose any Evaluation Material in connection with any\nlaw, rule or regulation, or by any judicial or administrative proceedings (by oral questions, interrogatories, requests for information or documents,\nsubpoena, civil investigation demand or similar process), you will\nprovide the Company with prompt notice, to the extent legally permissible, of such request or requirement(s). You also agree, to the extent legally\npermissible and reasonably practicable, to provide the Company, in advance of any such disclosure, with a list of any Evaluation Material you intend\nto disclose (and, if applicable, the text of the disclosure language itself) and to cooperate with the Company, at the Company’s sole expense, to the\nextent the Company may seek to limit such disclosure, including, if requested, taking all reasonable steps to resist or avoid any such judicial or\nadministrative proceedings referred to above. If and to the extent, in the absence of a protective order or the receipt of a waiver from the Company ,\nyou or your Representatives are legally required as advised by counsel in writing to disclose Evaluation Material to any tribunal, you will use\nreasonable efforts to obtain assurances that confidential treatment will be accorded to any Evaluation Material that you are so required to disclose\nand thereafter you or your Representatives may disclose such information without liability hereunder. Notwithstanding the foregoing, no such notice\nshall be required in respect of disclosures of the Evaluation Material to financial regulatory authorities having jurisdiction over you or your\nRepresentatives, unless the requests by such regulatory authorities are specifically targeted at the Evaluation Material, the Company or the\nTransaction; provided, that you or your Representatives shall advise such financial regulatory authority of the confidential nature of such Evaluation\nMaterial.\n(e) Upon the written request of the Company, you will (and you will cause your Representatives to) promptly deliver to the Company or, at\nyour option, destroy, all copies of the Evaluation Material, without retaining any copy thereof, including, to the extent practicable, expunging all\nsuch Evaluation Material from any computer, word processor or other device containing such information. If requested by the Company, an\nappropriate officer of yours will certify to the Company that all such material has been so delivered or destroyed. Notwithstanding the foregoing, you\nand your Representatives may retain Evaluation Material (i) to the extent it is “backed-up” on your or their (as the case may be) electronic\ninformation management and communications systems or servers, and is not available to an end user and (ii) in accordance with applicable law, rule,\nregulation, professional standards and your and your Representatives’ respective bona fide document retention policies. Any and all duties and\nobligations existing under this Agreement shall remain in full force and effect until this Agreement is terminated in accordance with Section 9(a),\nnotwithstanding the delivery or destruction of the Evaluation Material required by this Section 1(e). You also agree to notify us promptly upon your\ndetermination to cease to consider a Transaction.\n(f) To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or government investigations, you understand and agree that the parties\nhave a commonality of legal interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege or other applicable privilege. All Evaluation Material furnished by the Company or its Representatives that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these\nprivileges, this Agreement, and under the common legal interest and joint defense doctrine, and the parties agree to take commercially reasonable\nefforts to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n3\n2. No Other Discussions or Arrangements. You represent that neither you nor any of your Representatives acting at your direction or on your\nbehalf have directly or indirectly contacted or entered into any discussions, agreements or understandings with any person (other than any of your\nRepresentatives) with respect to a Transaction, including the provision of debt or equity financing with respect thereto. You agree that, during the\nStandstill Period (as defined below), neither you nor any of your Representatives acting at your direction or on your behalf will, without the prior\nwritten consent of the Company, directly or indirectly contact or enter into any discussions, agreements or understandings with any person (other\nthan any of your Representatives) with respect to a Transaction, including the provision of debt or equity financing with respect thereto. You further\nrepresent that you and your Representatives acting at your direction or on your behalf are not a party to, and you further agree that during the\nStandstill Period you and your Representatives acting at your direction or on your behalf will not enter into, any agreement or understanding with\nany person (including, without limitation, any of your Representatives) that would directly or indirectly restrict the ability of any other person to\nprovide financing (debt, equity or otherwise) to any other person relating to the Transaction.\n3. Standstill.\n(a) In consideration for being furnished with the Evaluation Material, you agree that during the Standstill Period, unless the board of directors\nof the Company (the “Board of Directors”) shall otherwise specifically request in writing in advance, you shall not, and shall cause your (i) directors,\nofficers, employees and (ii) individuals at your affiliates and individuals at your outside Representatives who have received Evaluation Material\nfrom you and are acting at your direction or on your behalf in connection with a possible Transaction, not to (and you and such persons will not\nassist or form a group within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), act in\nconcert or participate with or encourage other persons to), directly or indirectly, (A) acquire or offer to acquire, seek, propose or agree to acquire, by\nmeans of a purchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of any assets, businesses or\nsecurities of MModal Inc., or any option, warrant, convertible security, stock appreciation right or other right to acquire such ownership, including\nthrough any swap agreement or other security, contract right or derivative position, whether or not presently exercisable, that has an exercise or\nconversion privilege or a settlement payment or mechanism at a price related to the value of the common stock of the MModal Inc.or a value\ndetermined in whole or part with reference to, or derived in whole or in part from, the value of the common stock of the MModal Inc. and that\nincreases in value as the value of the common stock of the MModal Inc. increases or that provides to the holder an opportunity, directly or indirectly,\nto profit or share in any profit derived from any increase in the value of the common stock of the MModal Inc. (collectively, “MModal Inc.\nInterests”), (B) seek or propose to influence, advise, change or control the management, Board of Directors, governing instruments, policies or\naffairs of the MModal Inc., including, without limitation, by means of soliciting or participating in the solicitation of any proxies, (as such terms are\ndefined in Rule 14a-1 of Regulation 14A promulgated pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and\nincluding any otherwise exempt solicitation pursuant to Rule 14a-2(b)), contacting any person relating to any of the matters set forth in this\nAgreement (except as otherwise expressly agreed herein) or seeking to influence, advise or direct the vote of any holder of voting securities of the\nMModal Inc. or its affiliates or making a request to amend or waive this provision or any other provision\n4\nof this Section 3 of this Agreement or (C) make any public disclosure, or take any action that would be reasonably likely to require the MModal Inc.\nto make any public disclosure, with respect to any of the matters set forth in this Agreement. You represent to the MModal Inc. that you do not own\n(including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) any MModal Inc. Interests as of the date\nhereof. For the avoidance of doubt, the foregoing provisions of this paragraph shall not prohibit activities of any your subsidiaries or affiliates in the\nordinary course of their respective businesses (“permitted activities”) provided that (i) the individuals working on such permitted activities\n(excluding the members of any investment, management or similar committee whose approval is required in connection with your evaluation and\nconsummation of a Transaction) have not received the Evaluation Material and are not aware (x) of the fact that discussions or negotiations may take\nplace, are taking place or have taken place concerning a possible Transaction or any of the terms or other facts relating thereto, including the status\nthereof, (y) of the existence or the terms of this Agreement or (z) that you or your Representatives have received or produced any Evaluation\nMaterial in connection with the Transaction, (ii) appropriate “information barriers” with respect to the Evaluation Material are established between\nindividuals who are working on behalf of you and your Representatives to whom Evaluation Material is disclosed hereunder and those individuals\nwho engage in permitted activities, (iii) such permitted activities are conducted only in accordance with the policies and procedures governing such\ninformation barriers and with applicable law, and (iv) the individuals engaging in permitted activities are not acting at the direction of you or any\nindividuals of your Representatives to whom Evaluation Material has been disclosed hereunder.\n(b) “Standstill Period” for purposes of this Agreement shall mean a period of one (1) year following the date of this Agreement.\n4. Non-Solicitation and No-Hire of Employees. During the Standstill Period, you agree that you will not, and you will direct individuals at\nyour Representatives not to on your behalf, directly or indirectly, hire or solicit any officer of the Company or other employee of the Company with\nwhom you or individuals at your Representatives acting at your direction or on your behalf, had contact in connection with your consideration of a\nTransaction or about whom you or individuals at your Representatives acting at your direction or on your behalf have received information in\nconnection with your consideration of a Transaction, other than a person who has not been an employee of the Company for at least 90 days and\nwhom neither you nor any of individuals at your Representatives acting at your direction or on your behalf, directly or indirectly solicited; provided,\nthat nothing in this Section 4 shall apply to any employee who contacts you on his or her own initiative or who responds to general mass solicitations\nof employment and generalized employee searches by headhunter/search firms (in either case not focused specifically on or directed in any way at\nsuch employees of the Company).\n5. No Representations or Warranties. You understand and agree that neither the Company nor any of its Representatives makes any\nrepresentation or warranty, express or implied, on which you or your Representatives may rely as to the accuracy or completeness of the Evaluation\nMaterial for your or your Representatives’ purposes and that only those representations and warranties made by us in writing in a subsequent\ndefinitive agreement with you related to a Transaction, if any, shall have any legal effect. You agree that other than as may be set forth in such\ndefinitive agreement neither the Company nor its Representatives shall have\nany liability whatsoever to you or any of your Representatives, including, without limitation, in contract, tort or under federal or state securities laws,\nrelating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom.\n5\n6. No Obligation. It is understood and agreed that unless and until there is a definitive agreement between us with respect to a Transaction,\nneither the Company nor you intends to be, nor shall either of you or the Company be, under any legal obligation of any kind whatsoever with\nrespect to such Transaction or otherwise, by virtue of any written or oral expressions by our respective Representatives with respect to such\nTransaction, except for the matters specifically agreed to in this Agreement.\n7. Equitable Relief. The Company, without prejudice to any rights to judicial relief it may otherwise have, shall be entitled to seek equitable\nrelief, including injunction and/or specific performance, in the event of any breach of the provisions of this Agreement. You agree that you will not\noppose the granting of such relief on the basis that the Company has an adequate remedy at law and that assuming the injunctive relief is obtained\nyou will pay any reasonable fees that the Company may incur in enforcing this Agreement. You also agree that you will not seek and agree to waive\nany requirement for the securing or posting of a bond in connection with the Company’s seeking or obtaining such relief. You acknowledge that the\nEvaluation Material is valuable and unique and that any disclosure thereof in breach of this Agreement may result in irreparable injury to the\nCompany.\n8. Compliance with Law.\n(a) You hereby confirm that you are aware and that individuals at your Representatives acting at your direction or on your behalf have been\nadvised (through policy manuals or otherwise) that the United States securities laws prohibit any person who has material non-public information\nabout a company from purchasing or selling securities of such company or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person may purchase or sell such securities in reliance upon such information.\n(b) You hereby confirm that you and individuals at your affiliates who receive Evaluation Material from you under this Agreement, will (and\nyou and they will use commercially reasonable efforts to cause individuals at your respective Representatives acting at your direction or on your\nbehalf to) take action as reasonable and appropriate to prevent the use by you and them of any Evaluation Material about the Company in a way that\nwould reasonably be expected to violate any antitrust or federal or state securities laws in reliance upon such information.\n9. Miscellaneous.\n(a) Each party’s obligations under this Agreement expire upon the earlier of (i) 18 months after the date of this Agreement, and (ii) the\ncompletion of a Transaction with you.\n(b) The term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any corporation,\ncompany, group, partnership, trust, governmental entity or individual. The term “affiliate” as used in this Agreement shall have the meaning ascribed\nto such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.\n6\n(c) It is agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege.\n(d) It is understood and agreed that if any provision contained in this Agreement or the application thereof to you, the Company, or any other\nperson or circumstance shall be invalid, illegal or unenforceable in any respect under any applicable law as determined by a court of competent\njurisdiction, the validity, legality and enforceability of the remaining provisions contained in this Agreement, or the application of such provision to\nsuch persons or circumstances other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in\nno way be affected, impaired or invalidated thereby. In the case of any such invalidity, illegality or unenforceability, a suitable and equitable\nprovision shall be substituted therefore in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or\nunenforceable provision.\n(e) This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York, without regard to any\nconflict of laws principles.\n(f) Each party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement\nexclusively in the United States District Court for the Southern District of New York or any New York State court sitting in New York City (the\n“Chosen Courts”), and solely in connection with claims arising under this Agreement (i) irrevocably submits to the exclusive jurisdiction of the\nChosen Courts, (ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (iii) waives any objection that the\nChosen Courts are an inconvenient forum or do not have jurisdiction over any party hereto and (iv) agrees that service of process upon such party in\nany such action or proceeding shall be effective if notice is given in accordance with Section 9(g) of this Agreement. Each party hereto irrevocably\nwaives any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement. Each of the parties hereto agrees that a\nfinal judgment in any lawsuit, action or other proceeding arising out of or relating to this Agreement brought in the courts referred to in the first\nsentence of this Section 9(f) shall be conclusive and binding upon each of the parties hereto and may be enforced in any other courts the jurisdiction\nof which each of the parties is or may be subject, by suit upon such judgment.\n(g) Any notice hereunder shall be made in writing by overnight courier, personal delivery, facsimile or email (if telephonically confirmed), in\neach case to:\nIf to the Company:\nMDModal Inc.\n9009 Carothers Parkway\nFranklin, Tennessee 37067\nAttention: General Counsel\nFacsimile: 866-796-5127\nTelephone: 615-261-1740\nEmail: mark.sullivan@mmodal.com\nIf to you:\nOne Equity Partners IV, L.P.\n320 Park Avenue, 18t Floor\nNew York, NY 10022\nAttention: Gregory A. Belinfanti\nManaging Director\nFacsimile: 212-277-1586\nTelephone: 212-277-1530\nEmail: gregory.a.belinfanti@oneequity.com\nWith a copy to:\nJPMorgan Chase & Co.—Legal Dept.\n270 Park Avenue, 38th Floor\nNew York, New York 10017\nAttention: Elizabeth De Guzman\nVice President & Assistant General Counsel\nTelephone: 212-270-7690\nFacsimile: 646-792-3771\nE-mail: elizabeth.deguzman@jpmorgan.com\n(h) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior\nagreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof. This Agreement shall be\nbinding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any assignment of this Agreement\nby you without the prior written consent of the Company shall be void. The Company may assign this Agreement and/or the benefits hereunder to\none or more purchasers of all or a portion of the capital stock or assets of the Company.\n(i) This Agreement may only be amended by a separate writing signed by the Company and you expressly so amending this Agreement. Any\nprovision of this Agreement may be waived by the party entitled to the benefit thereof, if in writing and signed by the party entitled to the benefit\nthereof.\n(j) This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which shall\nconstitute one and the same Agreement.\n[The remainder of this page is intentionally left blank.]\n8\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this Agreement, whereupon this Agreement\nwill constitute our agreement with respect to the subject matter hereof.\nVery truly yours,\nMMODAL INC.\nBy: /s/ Matthew Reid Jenkins\nName: Matthew Reid Jenkins\nTitle: SVP\nCONFIRMED AND AGREED TO:\nONE EQUITY PARTNERS 1V, L.P.\nBy: OEP General Partner IV, L.P,,\nas General Partner\nBy: OEP Parent LLC,\nas General Partner\nBy: /s/ Gregory A. Belinfanti\nName: Gregory A. Belinfanti\nTitle: Managing Director	EX-99.(D)(3) 14 377383dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIAL\nApril 11, 2012\nOne Equity Partners IV, L.P.\n320 Park Avenue, 18th Floor\nNew York, NY 10022\nAttention:\nGregory A. Belinfanti\nLadies and Gentlemen:\nOne Equity Partners IV, L.P. ("you" or "your") has requested certain non-public, proprietary information from MModal Inc. (formerly known\nas MedQuist Holdings, Inc.) (together with its wholly-owned subsidiaries, the "Company.") in connection with your consideration of a possible\nnegotiated transaction between you and the Company (a "Transaction"). While this letter agreement (this "Agreement") does not require the\nCompany to furnish such information, or you to receive it, this Agreement shall govern such information as may be provided or otherwise made\navailable by the Company.\n1. Confidentiality..\n(a) You agree to keep all Evaluation Material (as defined below) confidential and to use the Evaluation Material only for the purpose of\nevaluating or consummating a possible Transaction; provided, however, that (i) Evaluation Material may be disclosed to those of your officers,\ndirectors, employees, accountants, counsel, investment bankers, consultants, financial advisors, agents, individuals at affiliates who receive\nEvaluation Material from you and, solely with the prior written consent of the Company (which may be withheld at the Company's sole discretion),\ndebt financing sources disclosed to the Company (such persons referred to in this clause (i) who receive Evaluation Material in their capacity as such\nbeing generally referred to herein as "Representatives"), in each case who need to know such information for the purpose of assisting you in your\nevaluation or consummation of a Transaction so long as you use commercially reasonable efforts to cause your Representatives to treat the\nEvaluation Material in a confidential manner and in accordance with the terms hereof, (ii) any disclosure of the Evaluation Material may be made to\nwhich the Company consents in writing and (iii) any disclosure of the Evaluation Material may be made to the extent expressly permitted by\nSection 1(d). You will be responsible for any breach of the terms of this Agreement by any of your Representatives other than any of your\nRepresentatives who enter into a separate confidentiality agreement with the Company on or after the date hereof. For purposes of this Agreement,\n"Evaluation Material" means non-public information regarding the Company or third parties that the Company or its Representatives furnish\nor\notherwise make available to you or your Representatives, whether on or after the date of this Agreement, and whether oral, written or electronic,\ntogether with any reports, analyses, compilations, forecasts, memoranda, notes, studies, interpretations and any other oral, written or electronic\nmaterials prepared by or for you or your Representatives to the extent that they contain, reflect or are based upon, in whole or\nin\npart, such information. Notwithstanding the foregoing, the term "Evaluation Material" does not include information that (A) was or becomes\navailable to you or your Representatives from a source other than the Company or its Representatives provided such other source is not known by\nyou or your Representatives to be bound by a confidentiality obligation to the Company or (B) was or becomes generally available to the public\n(other than as a result of a violation by you or your Representatives of this Agreement) or (C) was independently developed or created by you or\nyour Representatives without use of or reference to any Evaluation Material provided by the Company or violation of your obligations hereunder.\nNotwithstanding anything to the contrary in this Agreement, none of the provisions of this Agreement shall apply to any of your affiliates who\ndo\nnot receive Evaluation Material; provided, that should Evaluation Material be made available by you or any of your Representatives to (i) any\ndirector, officer or employee of any of your affiliated portfolio companies, you will arrange for such portfolio companies to enter into a separate\nagreement with terms substantially similar hereto with the Company, (ii) any of OEP Parent LLC's ("OEP Parent") controlled affiliated investment\nentities, such entities shall be bound by this Agreement in accordance with its terms or (iii) any individual at your affiliates (other than your affiliated\nportfolio companies or any of OEP Parent's controlled affiliated investment entities), the individuals at such affiliates who have received Evaluation\nMaterial from you shall be bound by this Agreement in accordance with its terms.\n(b) You agree that neither you nor any of your Representatives will, without the prior written consent of the Company, directly or indirectly,\ndisclose to any other person (excluding your Representatives) (i) the fact that discussions or negotiations may take place, are taking place or have\ntaken place concerning a possible Transaction or any of the terms or other facts relating thereto, including the status thereof, (ii) the existence or the\nterms of this Agreement or (iii) that you or your Representatives have received or produced any Evaluation Material; provided, however, that you or\nyour Representatives may make such disclosure to the extent expressly permitted by Section 1(d).\n(c) It is understood that all requests by you and your Representatives for information, facility tours or management meetings and discussions or\nquestions regarding procedures in connection with your evaluation of a Transaction, will be submitted or directed to Alicia Ciccone\n(alicia.ciccone@macquarie.com, +1(212) 231-1811) at Macquarie Capital (USA) Inc. ("Macquarie"). You also agree that, without the prior express\nconsent of the Company, you will not (and you will use commercially reasonable efforts to cause your Representatives not to) initiate or maintain\ncontact (except for those contacts made in the ordinary course of business unrelated to the possible Transaction) with any person or entity that,\nto\nyour knowledge, is (i) an officer, director, employee, consultant or agent of the Company regarding a Transaction, participation in a Transaction or\nthe Company's business, operations, prospects or finances or (ii) a supplier, distributor, broker or customer of the Company regarding the Company\nor the business operations, assets, prospects or finances of the Company. It is understood that Macquarie will arrange for all contacts for due\ndiligence purposes in connection with your evaluation of a Transaction.\n(d) In the event that you or any of your Representatives are requested or required to disclose any Evaluation Material in connection with any\nlaw, rule or regulation, or by any judicial or administrative proceedings (by oral questions, interrogatories, requests for information or documents,\nsubpoena, civil investigation demand or similar process), you will\n2\nprovide the Company with prompt notice, to the extent legally permissible, of such request or requirement(s). You also agree, to the extent legally\npermissible and reasonably practicable, to provide the Company, in advance of any such disclosure, with a list of any Evaluation Material you intend\nto disclose (and, if applicable, the text of the disclosure language itself) and to cooperate with the Company, at the Company's sole expense, to the\nextent the Company may seek to limit such disclosure, including, if requested, taking all reasonable steps to resist or avoid any such judicial or\nadministrative proceedings referred to above. If and to the extent, in the absence of a protective order or the receipt of a waiver from the Company\nyou or your Representatives are legally required as advised by counsel in writing to disclose Evaluation Material to any tribunal, you will use\nreasonable efforts to obtain assurances that confidential treatment will be accorded to any Evaluation Material that you are so required to disclose\nand thereafter you or your Representatives may disclose such information without liability hereunder. Notwithstanding the foregoing, no such notice\nshall be required in respect of disclosures of the Evaluation Material to financial regulatory authorities having jurisdiction over you or your\nRepresentatives, unless the requests by such regulatory authorities are specifically targeted at the Evaluation Material, the Company or the\nTransaction; provided, that you or your Representatives shall advise such financial regulatory authority of the confidential nature of such Evaluation\nMaterial.\n(e) Upon the written request of the Company, you will (and you will cause your Representatives to) promptly deliver to the Company or,\nat\nyour option, destroy, all copies of the Evaluation Material, without retaining any copy thereof, including, to the extent practicable, expunging all\nsuch Evaluation Material from any computer, word processor or other device containing such information. If requested by the Company, an\nappropriate officer of yours will certify to the Company that all such material has been so delivered or destroyed. Notwithstanding the foregoing, you\nand your Representatives may retain Evaluation Material (i) to the extent it is "backed-up" on your or their (as the case may be) electronic\ninformation management and communications systems or servers, and is not available to an end user and (ii) in accordance with applicable law, rule,\nregulation, professional standards and your and your Representatives' respective bona fide document retention policies. Any and all duties and\nobligations existing under this Agreement shall remain in full force and effect until this Agreement is terminated in accordance with Section 9(a),\nnotwithstanding the delivery or destruction of the Evaluation Material required by this Section 1(e). You also agree to notify us promptly upon your\ndetermination to cease to consider a Transaction.\n(f) To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or government investigations, you understand and agree that the parties\nhave a commonality of legal interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of\nsuch\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege or other applicable privilege. All Evaluation Material furnished by the Company or its Representatives that is entitled\nto\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these\nprivileges, this Agreement, and under the common legal interest and joint defense doctrine, and the parties agree to take commercially reasonable\nefforts to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n3\n2. No Other Discussions or Arrangements. You represent that neither you nor any of your Representatives acting at your direction or on your\nbehalf have directly or indirectly contacted or entered into any discussions, agreements or understandings with any person (other than any of your\nRepresentatives) with respect to a Transaction, including the provision of debt or equity financing with respect thereto. You agree that, during the\nStandstill Period (as defined below), neither you nor any of your Representatives acting at your direction or on your behalf will, without the prior\nwritten consent of the Company, directly or indirectly contact or enter into any discussions, agreements or understandings with any person (other\nthan any of your Representatives) with respect to a Transaction, including the provision of debt or equity financing with respect thereto. You further\nrepresent that you and your Representatives acting at your direction or on your behalf are not a party to, and you further agree that during the\nStandstill Period you and your Representatives acting at your direction or on your behalf will not enter into, any agreement or understanding with\nany person (including, without limitation, any of your Representatives) that would directly or indirectly restrict the ability of any other person\nto\nprovide financing (debt, equity or otherwise) to any other person relating to the Transaction.\n3. Standstill.\n(a) In consideration for being furnished with the Evaluation Material, you agree that during the Standstill Period, unless the board of directors\nof the Company (the "Board of Directors") shall otherwise specifically request in writing in advance, you shall not, and shall cause your (i) directors,\nofficers, employees and (ii) individuals at your affiliates and individuals at your outside Representatives who have received Evaluation Material\nfrom you and are acting at your direction or on your behalf in connection with a possible Transaction, not to (and you and such persons will not\nassist or form a group within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), act in\nconcert or participate with or encourage other persons to), directly or indirectly, (A) acquire or offer to acquire, seek, propose or agree to acquire, by\nmeans of a purchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of any assets, businesses or\nsecurities of MModal Inc., or any option, warrant, convertible security, stock appreciation right or other right to acquire such ownership, including\nthrough any swap agreement or other security, contract right or derivative position, whether or not presently exercisable, that has an exercise or\nconversion privilege or a settlement payment or mechanism at a price related to the value of the common stock of the MModal Inc.or a value\ndetermined in whole or part with reference to, or derived in whole or in part from, the value of the common stock of the MModal Inc. and that\nincreases in value as the value of the common stock of the MModal Inc. increases or that provides to the holder an opportunity, directly or indirectly,\nto profit or share in any profit derived from any increase in the value of the common stock of the MModal Inc. (collectively, "MModal Inc.\nInterests"), (B) seek or propose to influence, advise, change or control the management, Board of Directors, governing instruments, policies or\naffairs of the MModal Inc., including, without limitation, by means of soliciting or participating in the solicitation of any proxies, (as such terms are\ndefined in Rule 14a-1 of Regulation 14A promulgated pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule 14a-1(1)(2) and\nincluding any otherwise exempt solicitation pursuant to Rule 14a-2(b)), contacting any person relating to any of the matters set forth in this\nAgreement (except as otherwise expressly agreed herein) or seeking to influence, advise or direct the vote of any holder of voting securities of the\nMModal Inc. or its affiliates or making a request to amend or waive this provision or any other provision\n4\nof this Section 3 of this Agreement or (C) make any public disclosure, or take any action that would be reasonably likely to require the MModal Inc.\nto make any public disclosure, with respect to any of the matters set forth in this Agreement. You represent to the MModal Inc. that you do not own\n(including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) any MModal Inc. Interests as of the date\nhereof. For the avoidance of doubt, the foregoing provisions of this paragraph shall not prohibit activities of any your subsidiaries or affiliates in the\nordinary course of their respective businesses ("permitted activities") provided that (i) the individuals working on such permitted activities\n(excluding the members of any investment, management or similar committee whose approval is required in connection with your evaluation and\nconsummation of a Transaction) have not received the Evaluation Material and are not aware (x) of the fact that discussions or negotiations may take\nplace, are taking place or have taken place concerning a possible Transaction or any of the terms or other facts relating thereto, including the status\nthereof, (y) of the existence or the terms of this Agreement or (z) that you or your Representatives have received or produced any Evaluation\nMaterial in connection with the Transaction, (ii) appropriate "information barriers" with respect to the Evaluation Material are established between\nindividuals who are working on behalf of you and your Representatives to whom Evaluation Material is disclosed hereunder and those individuals\nwho engage in permitted activities, (iii) such permitted activities are conducted only in accordance with the policies and procedures governing such\ninformation barriers and with applicable law, and (iv) the individuals engaging in permitted activities are not acting at the direction of you or any\nindividuals of your Representatives to whom Evaluation Material has been disclosed hereunder.\n(b) "Standstill Period" for purposes of this Agreement shall mean a period of one (1) year following the date of this Agreement.\n4. Non-Solicitation and No-Hire of Employees. During the Standstill Period, you agree that you will not, and you will direct individuals at\nyour Representatives not to on your behalf, directly or indirectly, hire or solicit any officer of the Company or other employee of the Company with\nwhom you or individuals at your Representatives acting at your direction or on your behalf, had contact in connection with your consideration of a\nTransaction or about whom you or individuals at your Representatives acting at your direction or on your behalf have received information in\nconnection with your consideration of a Transaction, other than a person who has not been an employee of the Company for at least 90 days and\nwhom neither you nor any of individuals at your Representatives acting at your direction or on your behalf, directly or indirectly solicited; provided,\nthat nothing in this Section 4 shall apply to any employee who contacts you on his or her own initiative or who responds to general mass solicitations\nof employment and generalized employee searches by headhunter/search firms (in either case not focused specifically on or directed in any way at\nsuch employees of the Company).\n5. No Representations or Warranties. You understand and agree that neither the Company nor any of its Representatives makes any\nrepresentation or warranty, express or implied, on which you or your Representatives may rely as to the accuracy or completeness of the Evaluation\nMaterial for your or your Representatives' purposes and that only those representations and warranties made by us in writing in a subsequent\ndefinitive agreement with you related to a Transaction, if any, shall have any legal effect. You agree that other than as may be set forth in such\ndefinitive agreement neither the Company nor its Representatives shall have\nany liability whatsoever to you or any of your Representatives, including, without limitation, in contract, tort or under federal or state securities laws,\nrelating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom.\n5\n6. No Obligation. It is understood and agreed that unless and until there is a definitive agreement between us with respect to a Transaction,\nneither the Company nor you intends to be, nor shall either of you or the Company be, under any legal obligation of any kind whatsoever with\nrespect to such Transaction or otherwise, by virtue of any written or oral expressions by our respective Representatives with respect to such\nTransaction, except for the matters specifically agreed to in this Agreement.\n7. Equitable Relief. The Company, without prejudice to any rights to judicial relief it may otherwise have, shall be entitled to seek equitable\nrelief, including injunction and/or specific performance, in the event of any breach of the provisions of this Agreement. You agree that you will not\noppose the granting of such relief on the basis that the Company has an adequate remedy at law and that assuming the injunctive relief is obtained\nyou will pay any reasonable fees that the Company may incur in enforcing this Agreement. You also agree that you will not seek and agree to waive\nany requirement for the securing or posting of a bond in connection with the Company's seeking or obtaining such relief. You acknowledge that the\nEvaluation Material is valuable and unique and that any disclosure thereof in breach of this Agreement may result in irreparable injury to the\nCompany.\n8. Compliance with Law.\n(a) You hereby confirm that you are aware and that individuals at your Representatives acting at your direction or on your behalf have been\nadvised (through policy manuals or otherwise) that the United States securities laws prohibit any person who has material non-public information\nabout a company from purchasing or selling securities of such company or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person may purchase or sell such securities in reliance upon such information.\n(b) You hereby confirm that you and individuals at your affiliates who receive Evaluation Material from you under this Agreement, will (and\nyou and they will use commercially reasonable efforts to cause individuals at your respective Representatives acting at your direction or on your\nbehalf to) take action as reasonable and appropriate to prevent the use by you and them of any Evaluation Material about the Company in a way\nthat\nwould reasonably be expected to violate any antitrust or federal or state securities laws in reliance upon such information.\n9. Miscellaneous.\n(a) Each party's obligations under this Agreement expire upon the earlier of (i) 18 months after the date of this Agreement, and (ii) the\ncompletion of a Transaction with you.\n(b) The term "person" as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any corporation,\ncompany, group, partnership, trust, governmental entity or individual. The term "affiliate" as used in this Agreement shall have the meaning ascribed\nto such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.\n6\n(c) It is agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege.\n(d) It is understood and agreed that if any provision contained in this Agreement or the application thereof to you, the Company, or any other\nperson or circumstance shall be invalid, illegal or unenforceable in any respect under any applicable law as determined by a court of competent\njurisdiction, the validity, legality and enforceability of the remaining provisions contained in this Agreement, or the application of such provision to\nsuch persons or circumstances other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in\nno way be affected, impaired or invalidated thereby. In the case of any such invalidity, illegality or unenforceability, a suitable and equitable\nprovision shall be substituted therefore in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or\nunenforceable provision.\n(e) This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York, without regard to any\nconflict of laws principles.\n(f) Each party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement\nexclusively in the United States District Court for the Southern District of New York or any New York State court sitting in New York City (the\n"Chosen Courts"), and solely in connection with claims arising under this Agreement (i) irrevocably submits to the exclusive jurisdiction of the\nChosen Courts, (ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (iii) waives any objection that the\nChosen Courts are an inconvenient forum or do not have jurisdiction over any party hereto and (iv) agrees that service of process upon such party in\nany such action or proceeding shall be effective if notice is given in accordance with Section 9(g) of this Agreement. Each party hereto irrevocably\nwaives\nany\nand\nall\nright to trial by jury in any legal proceeding arising out of or relating to this Agreement. Each of the parties hereto agrees\nthat\na\nfinal judgment in any lawsuit, action or other proceeding arising out of or relating to this Agreement brought in the courts referred to in the first\nsentence of this Section 9(f) shall be conclusive and binding upon each of the parties hereto and may be enforced in any other courts the jurisdiction\nof which each of the parties is or may be subject, by suit upon such judgment.\n(g) Any notice hereunder shall be made in writing by overnight courier, personal delivery, facsimile or email (if telephonically confirmed), in\neach case to:\nIf to the Company:\nMModal Inc.\n9009 Carothers Parkway\nFranklin, Tennessee 37067\nAttention: General Counsel\nFacsimile: 866-796-5127\nTelephone: 615-261-1740\nEmail: mark.sullivan@mmodal.com\n7\nIf to you:\nOne Equity Partners IV, L.P.\n320 Park Avenue, 18th Floor\nNew York, NY 10022\nAttention: Gregory A. Belinfanti\nManaging Director\nFacsimile: 212-277-1586\nTelephone: 212-277-1530\nEmail: gregory.a.belinfanti@oneequity.com\nWith a copy to:\nJPMorgan Chase & Co.-Legal Dept.\n270 Park Avenue, 38th Floor\nNew York, New York 10017\nAttention: Elizabeth De Guzman\nVice President & Assistant General Counsel\nTelephone: 212-270-7690\nFacsimile: 646-792-3771\nE-mail: l:elizabeth.deguzman@jpmorgan.com\n(h) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior\nagreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof. This Agreement shall be\nbinding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any assignment of this Agreement\nby\nyou without the prior written consent of the Company shall be void. The Company may assign this Agreement and/or the benefits hereunder to\none or more purchasers of all or a portion of the capital stock or assets of the Company.\n(i) This Agreement may only be amended by a separate writing signed by the Company and you expressly SO amending this Agreement. Any\nprovision of this Agreement may be waived by the party entitled to the benefit thereof, if in writing and signed by the party entitled to the benefit\nthereof.\n(j) This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which shall\nconstitute one and the same Agreement.\n[The remainder of this page is intentionally left blank.]\n8\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this Agreement, whereupon this Agreement\nwill constitute our agreement with respect to the subject matter hereof.\nVery truly yours,\nMMODAL INC.\nBy:\n/s/ Matthew Reid Jenkins\nName: Matthew Reid Jenkins\nTitle: SVP\nCONFIRMED AND AGREED TO:\nONE EQUITY PARTNERS IV, L.P.\nBy: OEP General Partner IV, L.P.,\nas General Partner\nBy: OEP Parent LLC,\nas General Partner\nBy:\n/s/ Gregory A. Belinfanti\nName: Gregory A. Belinfanti\nTitle: Managing Director	EX-99.(D)(3) 14 d377383dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIAL\nApril 11, 2012\nOne Equity Partners IV, L.P.\n320 Park Avenue, 18 Floor\nNew York, NY 10022\nAttention:\nGregory A. Belinfanti\nLadies and Gentlemen:\nOne Equity Partners IV, L.P. (“you” or “your”) has requested certain non-public, proprietary information from MModal Inc. (formerly known\nas MedQuist Holdings, Inc.) (together with its wholly-owned subsidiaries, the “Company”) in connection with your consideration of a possible\nnegotiated transaction between you and the Company (a “Transaction”). While this letter agreement (this “Agreement”) does not require the\nCompany to furnish such information, or you to receive it, this Agreement shall govern such information as may be provided or otherwise made\navailable by the Company.\n1. Confidentiality.\n(a) You agree to keep all Evaluation Material (as defined below) confidential and to use the Evaluation Material only for the purpose of\nevaluating or consummating a possible Transaction; provided, however, that (i) Evaluation Material may be disclosed to those of your officers,\ndirectors, employees, accountants, counsel, investment bankers, consultants, financial advisors, agents, individuals at affiliates who receive\nEvaluation Material from you and, solely with the prior written consent of the Company (which may be withheld at the Company’s sole discretion),\ndebt financing sources disclosed to the Company (such persons referred to in this clause (i) who receive Evaluation Material in their capacity as such\nbeing generally referred to herein as “Representatives”), in each case who need to know such information for the purpose of assisting you in your\nevaluation or consummation of a Transaction so long as you use commercially reasonable efforts to cause your Representatives to treat the\nEvaluation Material in a confidential manner and in accordance with the terms hereof, (ii) any disclosure of the Evaluation Material may be made to\nwhich the Company consents in writing and (iii) any disclosure of the Evaluation Material may be made to the extent expressly permitted by\nSection 1(d). You will be responsible for any breach of the terms of this Agreement by any of your Representatives other than any of your\nRepresentatives who enter into a separate confidentiality agreement with the Company on or after the date hereof. For purposes of this Agreement,\n“Evaluation Material” means non-public information regarding the Company or third parties that the Company or its Representatives furnish or\notherwise make available to you or your Representatives, whether on or after the date of this Agreement, and whether oral, written or electronic,\ntogether with any reports, analyses, compilations, forecasts, memoranda, notes, studies, interpretations and any other oral, written or electronic\nmaterials prepared by or for you or your Representatives to the extent that they contain, reflect or are based upon, in whole or in\nth\npart, such information. Notwithstanding the foregoing, the term “Evaluation Material” does not include information that (A) was or becomes\navailable to you or your Representatives from a source other than the Company or its Representatives provided such other source is not known by\nyou or your Representatives to be bound by a confidentiality obligation to the Company or (B) was or becomes generally available to the public\n(other than as a result of a violation by you or your Representatives of this Agreement) or (C) was independently developed or created by you or\nyour Representatives without use of or reference to any Evaluation Material provided by the Company or violation of your obligations hereunder.\nNotwithstanding anything to the contrary in this Agreement, none of the provisions of this Agreement shall apply to any of your affiliates who do\nnot receive Evaluation Material; provided, that should Evaluation Material be made available by you or any of your Representatives to (i) any\ndirector, officer or employee of any of your affiliated portfolio companies, you will arrange for such portfolio companies to enter into a separate\nagreement with terms substantially similar hereto with the Company, (ii) any of OEP Parent LLC’s (“OEP Parent”) controlled affiliated investment\nentities, such entities shall be bound by this Agreement in accordance with its terms or (iii) any individual at your affiliates (other than your affiliated\nportfolio companies or any of OEP Parent’s controlled affiliated investment entities), the individuals at such affiliates who have received Evaluation\nMaterial from you shall be bound by this Agreement in accordance with its terms.\n(b) You agree that neither you nor any of your Representatives will, without the prior written consent of the Company, directly or indirectly,\ndisclose to any other person (excluding your Representatives) (i) the fact that discussions or negotiations may take place, are taking place or have\ntaken place concerning a possible Transaction or any of the terms or other facts relating thereto, including the status thereof, (ii) the existence or the\nterms of this Agreement or (iii) that you or your Representatives have received or produced any Evaluation Material; provided, however, that you or\nyour Representatives may make such disclosure to the extent expressly permitted by Section 1(d).\n(c) It is understood that all requests by you and your Representatives for information, facility tours or management meetings and discussions or\nquestions regarding procedures in connection with your evaluation of a Transaction, will be submitted or directed to Alicia Ciccone\n(alicia.ciccone@macquarie.com, +1(212) 231-1811) at Macquarie Capital (USA) Inc. (“Macquarie”). You also agree that, without the prior express\nconsent of the Company, you will not (and you will use commercially reasonable efforts to cause your Representatives not to) initiate or maintain\ncontact (except for those contacts made in the ordinary course of business unrelated to the possible Transaction) with any person or entity that, to\nyour knowledge, is (i) an officer, director, employee, consultant or agent of the Company regarding a Transaction, participation in a Transaction or\nthe Company’s business, operations, prospects or finances or (ii) a supplier, distributor, broker or customer of the Company regarding the Company\nor the business operations, assets, prospects or finances of the Company. It is understood that Macquarie will arrange for all contacts for due\ndiligence purposes in connection with your evaluation of a Transaction.\n(d) In the event that you or any of your Representatives are requested or required to disclose any Evaluation Material in connection with any\nlaw, rule or regulation, or by any judicial or administrative proceedings (by oral questions, interrogatories, requests for information or documents,\nsubpoena, civil investigation demand or similar process), you will\n2\nprovide the Company with prompt notice, to the extent legally permissible, of such request or requirement(s). You also agree, to the extent legally\npermissible and reasonably practicable, to provide the Company, in advance of any such disclosure, with a list of any Evaluation Material you intend\nto disclose (and, if applicable, the text of the disclosure language itself) and to cooperate with the Company, at the Company’s sole expense, to the\nextent the Company may seek to limit such disclosure, including, if requested, taking all reasonable steps to resist or avoid any such judicial or\nadministrative proceedings referred to above. If and to the extent, in the absence of a protective order or the receipt of a waiver from the Company ,\nyou or your Representatives are legally required as advised by counsel in writing to disclose Evaluation Material to any tribunal, you will use\nreasonable efforts to obtain assurances that confidential treatment will be accorded to any Evaluation Material that you are so required to disclose\nand thereafter you or your Representatives may disclose such information without liability hereunder. Notwithstanding the foregoing, no such notice\nshall be required in respect of disclosures of the Evaluation Material to financial regulatory authorities having jurisdiction over you or your\nRepresentatives, unless the requests by such regulatory authorities are specifically targeted at the Evaluation Material, the Company or the\nTransaction; provided, that you or your Representatives shall advise such financial regulatory authority of the confidential nature of such Evaluation\nMaterial.\n(e) Upon the written request of the Company, you will (and you will cause your Representatives to) promptly deliver to the Company or, at\nyour option, destroy, all copies of the Evaluation Material, without retaining any copy thereof, including, to the extent practicable, expunging all\nsuch Evaluation Material from any computer, word processor or other device containing such information. If requested by the Company, an\nappropriate officer of yours will certify to the Company that all such material has been so delivered or destroyed. Notwithstanding the foregoing, you\nand your Representatives may retain Evaluation Material (i) to the extent it is “backed-up” on your or their (as the case may be) electronic\ninformation management and communications systems or servers, and is not available to an end user and (ii) in accordance with applicable law, rule,\nregulation, professional standards and your and your Representatives’ respective bona fide document retention policies. Any and all duties and\nobligations existing under this Agreement shall remain in full force and effect until this Agreement is terminated in accordance with Section 9(a),\nnotwithstanding the delivery or destruction of the Evaluation Material required by this Section 1(e). You also agree to notify us promptly upon your\ndetermination to cease to consider a Transaction.\n(f) To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or government investigations, you understand and agree that the parties\nhave a commonality of legal interest with respect to such matters and it is their mutual desire, intention and understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege or other applicable privilege. All Evaluation Material furnished by the Company or its Representatives that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these\nprivileges, this Agreement, and under the common legal interest and joint defense doctrine, and the parties agree to take commercially reasonable\nefforts to preserve, to the fullest extent possible, the applicability of all such privileges or doctrines.\n3\n2. No Other Discussions or Arrangements. You represent that neither you nor any of your Representatives acting at your direction or on your\nbehalf have directly or indirectly contacted or entered into any discussions, agreements or understandings with any person (other than any of your\nRepresentatives) with respect to a Transaction, including the provision of debt or equity financing with respect thereto. You agree that, during the\nStandstill Period (as defined below), neither you nor any of your Representatives acting at your direction or on your behalf will, without the prior\nwritten consent of the Company, directly or indirectly contact or enter into any discussions, agreements or understandings with any person (other\nthan any of your Representatives) with respect to a Transaction, including the provision of debt or equity financing with respect thereto. You further\nrepresent that you and your Representatives acting at your direction or on your behalf are not a party to, and you further agree that during the\nStandstill Period you and your Representatives acting at your direction or on your behalf will not enter into, any agreement or understanding with\nany person (including, without limitation, any of your Representatives) that would directly or indirectly restrict the ability of any other person to\nprovide financing (debt, equity or otherwise) to any other person relating to the Transaction.\n3. Standstill.\n(a) In consideration for being furnished with the Evaluation Material, you agree that during the Standstill Period, unless the board of directors\nof the Company (the “Board of Directors”) shall otherwise specifically request in writing in advance, you shall not, and shall cause your (i) directors,\nofficers, employees and (ii) individuals at your affiliates and individuals at your outside Representatives who have received Evaluation Material\nfrom you and are acting at your direction or on your behalf in connection with a possible Transaction, not to (and you and such persons will not\nassist or form a group within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), act in\nconcert or participate with or encourage other persons to), directly or indirectly, (A) acquire or offer to acquire, seek, propose or agree to acquire, by\nmeans of a purchase, tender or exchange offer, business combination or in any other manner, beneficial ownership of any assets, businesses or\nsecurities of MModal Inc., or any option, warrant, convertible security, stock appreciation right or other right to acquire such ownership, including\nthrough any swap agreement or other security, contract right or derivative position, whether or not presently exercisable, that has an exercise or\nconversion privilege or a settlement payment or mechanism at a price related to the value of the common stock of the MModal Inc.or a value\ndetermined in whole or part with reference to, or derived in whole or in part from, the value of the common stock of the MModal Inc. and that\nincreases in value as the value of the common stock of the MModal Inc. increases or that provides to the holder an opportunity, directly or indirectly,\nto profit or share in any profit derived from any increase in the value of the common stock of the MModal Inc. (collectively, “MModal Inc.\nInterests”), (B) seek or propose to influence, advise, change or control the management, Board of Directors, governing instruments, policies or\naffairs of the MModal Inc., including, without limitation, by means of soliciting or participating in the solicitation of any proxies, (as such terms are\ndefined in Rule 14a-1 of Regulation 14A promulgated pursuant to Section 14 of the Exchange Act, disregarding clause (iv) of Rule 14a-1(l)(2) and\nincluding any otherwise exempt solicitation pursuant to Rule 14a-2(b)), contacting any person relating to any of the matters set forth in this\nAgreement (except as otherwise expressly agreed herein) or seeking to influence, advise or direct the vote of any holder of voting securities of the\nMModal Inc. or its affiliates or making a request to amend or waive this provision or any other provision\n4\nof this Section 3 of this Agreement or (C) make any public disclosure, or take any action that would be reasonably likely to require the MModal Inc.\nto make any public disclosure, with respect to any of the matters set forth in this Agreement. You represent to the MModal Inc. that you do not own\n(including, but not limited to, beneficial ownership as defined in Rule 13d-3 under the Exchange Act) any MModal Inc. Interests as of the date\nhereof. For the avoidance of doubt, the foregoing provisions of this paragraph shall not prohibit activities of any your subsidiaries or affiliates in the\nordinary course of their respective businesses (“permitted activities”) provided that (i) the individuals working on such permitted activities\n(excluding the members of any investment, management or similar committee whose approval is required in connection with your evaluation and\nconsummation of a Transaction) have not received the Evaluation Material and are not aware (x) of the fact that discussions or negotiations may take\nplace, are taking place or have taken place concerning a possible Transaction or any of the terms or other facts relating thereto, including the status\nthereof, (y) of the existence or the terms of this Agreement or (z) that you or your Representatives have received or produced any Evaluation\nMaterial in connection with the Transaction, (ii) appropriate “information barriers” with respect to the Evaluation Material are established between\nindividuals who are working on behalf of you and your Representatives to whom Evaluation Material is disclosed hereunder and those individuals\nwho engage in permitted activities, (iii) such permitted activities are conducted only in accordance with the policies and procedures governing such\ninformation barriers and with applicable law, and (iv) the individuals engaging in permitted activities are not acting at the direction of you or any\nindividuals of your Representatives to whom Evaluation Material has been disclosed hereunder.\n(b) “Standstill Period” for purposes of this Agreement shall mean a period of one (1) year following the date of this Agreement.\n4. Non-Solicitation and No-Hire of Employees. During the Standstill Period, you agree that you will not, and you will direct individuals at\nyour Representatives not to on your behalf, directly or indirectly, hire or solicit any officer of the Company or other employee of the Company with\nwhom you or individuals at your Representatives acting at your direction or on your behalf, had contact in connection with your consideration of a\nTransaction or about whom you or individuals at your Representatives acting at your direction or on your behalf have received information in\nconnection with your consideration of a Transaction, other than a person who has not been an employee of the Company for at least 90 days and\nwhom neither you nor any of individuals at your Representatives acting at your direction or on your behalf, directly or indirectly solicited; provided,\nthat nothing in this Section 4 shall apply to any employee who contacts you on his or her own initiative or who responds to general mass solicitations\nof employment and generalized employee searches by headhunter/search firms (in either case not focused specifically on or directed in any way at\nsuch employees of the Company).\n5. No Representations or Warranties. You understand and agree that neither the Company nor any of its Representatives makes any\nrepresentation or warranty, express or implied, on which you or your Representatives may rely as to the accuracy or completeness of the Evaluation\nMaterial for your or your Representatives’ purposes and that only those representations and warranties made by us in writing in a subsequent\ndefinitive agreement with you related to a Transaction, if any, shall have any legal effect. You agree that other than as may be set forth in such\ndefinitive agreement neither the Company nor its Representatives shall have\nany liability whatsoever to you or any of your Representatives, including, without limitation, in contract, tort or under federal or state securities laws,\nrelating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom.\n5\n6. No Obligation. It is understood and agreed that unless and until there is a definitive agreement between us with respect to a Transaction,\nneither the Company nor you intends to be, nor shall either of you or the Company be, under any legal obligation of any kind whatsoever with\nrespect to such Transaction or otherwise, by virtue of any written or oral expressions by our respective Representatives with respect to such\nTransaction, except for the matters specifically agreed to in this Agreement.\n7. Equitable Relief. The Company, without prejudice to any rights to judicial relief it may otherwise have, shall be entitled to seek equitable\nrelief, including injunction and/or specific performance, in the event of any breach of the provisions of this Agreement. You agree that you will not\noppose the granting of such relief on the basis that the Company has an adequate remedy at law and that assuming the injunctive relief is obtained\nyou will pay any reasonable fees that the Company may incur in enforcing this Agreement. You also agree that you will not seek and agree to waive\nany requirement for the securing or posting of a bond in connection with the Company’s seeking or obtaining such relief. You acknowledge that the\nEvaluation Material is valuable and unique and that any disclosure thereof in breach of this Agreement may result in irreparable injury to the\nCompany.\n8. Compliance with Law.\n(a) You hereby confirm that you are aware and that individuals at your Representatives acting at your direction or on your behalf have been\nadvised (through policy manuals or otherwise) that the United States securities laws prohibit any person who has material non-public information\nabout a company from purchasing or selling securities of such company or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person may purchase or sell such securities in reliance upon such information.\n(b) You hereby confirm that you and individuals at your affiliates who receive Evaluation Material from you under this Agreement, will (and\nyou and they will use commercially reasonable efforts to cause individuals at your respective Representatives acting at your direction or on your\nbehalf to) take action as reasonable and appropriate to prevent the use by you and them of any Evaluation Material about the Company in a way that\nwould reasonably be expected to violate any antitrust or federal or state securities laws in reliance upon such information.\n9. Miscellaneous.\n(a) Each party’s obligations under this Agreement expire upon the earlier of (i) 18 months after the date of this Agreement, and (ii) the\ncompletion of a Transaction with you.\n(b) The term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any corporation,\ncompany, group, partnership, trust, governmental entity or individual. The term “affiliate” as used in this Agreement shall have the meaning ascribed\nto such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.\n6\n(c) It is agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder shall operate as a waiver thereof\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege.\n(d) It is understood and agreed that if any provision contained in this Agreement or the application thereof to you, the Company, or any other\nperson or circumstance shall be invalid, illegal or unenforceable in any respect under any applicable law as determined by a court of competent\njurisdiction, the validity, legality and enforceability of the remaining provisions contained in this Agreement, or the application of such provision to\nsuch persons or circumstances other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in\nno way be affected, impaired or invalidated thereby. In the case of any such invalidity, illegality or unenforceability, a suitable and equitable\nprovision shall be substituted therefore in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or\nunenforceable provision.\n(e) This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of New York, without regard to any\nconflict of laws principles.\n(f) Each party hereto agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement\nexclusively in the United States District Court for the Southern District of New York or any New York State court sitting in New York City (the\n“Chosen Courts”), and solely in connection with claims arising under this Agreement (i) irrevocably submits to the exclusive jurisdiction of the\nChosen Courts, (ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (iii) waives any objection that the\nChosen Courts are an inconvenient forum or do not have jurisdiction over any party hereto and (iv) agrees that service of process upon such party in\nany such action or proceeding shall be effective if notice is given in accordance with Section 9(g) of this Agreement. Each party hereto irrevocably\nwaives any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement. Each of the parties hereto agrees that a\nfinal judgment in any lawsuit, action or other proceeding arising out of or relating to this Agreement brought in the courts referred to in the first\nsentence of this Section 9(f) shall be conclusive and binding upon each of the parties hereto and may be enforced in any other courts the jurisdiction\nof which each of the parties is or may be subject, by suit upon such judgment.\n(g) Any notice hereunder shall be made in writing by overnight courier, personal delivery, facsimile or email (if telephonically confirmed), in\neach case to:\nIf to the Company:\nMModal Inc.\n9009 Carothers Parkway\nFranklin, Tennessee 37067\nAttention: General Counsel\nFacsimile: 866-796-5127\nTelephone: 615-261-1740\nEmail: mark.sullivan@mmodal.com\n7\nIf to you:\nOne Equity Partners IV, L.P.\n320 Park Avenue, 18 Floor\nNew York, NY 10022\nAttention: Gregory A. Belinfanti\nManaging Director\nFacsimile: 212-277-1586\nTelephone: 212-277-1530\nEmail: gregory.a.belinfanti@oneequity.com\nWith a copy to:\nJPMorgan Chase & Co.—Legal Dept.\n270 Park Avenue, 38th Floor\nNew York, New York 10017\nAttention: Elizabeth De Guzman\nVice President & Assistant General Counsel\nTelephone: 212-270-7690\nFacsimile: 646-792-3771\nE-mail: elizabeth.deguzman@jpmorgan.com\n(h) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior\nagreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof. This Agreement shall be\nbinding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any assignment of this Agreement\nby you without the prior written consent of the Company shall be void. The Company may assign this Agreement and/or the benefits hereunder to\none or more purchasers of all or a portion of the capital stock or assets of the Company.\n(i) This Agreement may only be amended by a separate writing signed by the Company and you expressly so amending this Agreement. Any\nprovision of this Agreement may be waived by the party entitled to the benefit thereof, if in writing and signed by the party entitled to the benefit\nthereof.\n(j) This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which shall\nconstitute one and the same Agreement.\n[The remainder of this page is intentionally left blank.]\n8\nth\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this Agreement, whereupon this Agreement\nwill constitute our agreement with respect to the subject matter hereof.\nVery truly yours,\nMMODAL INC.\nBy: /s/ Matthew Reid Jenkins\nName: Matthew Reid Jenkins\nTitle: SVP\nCONFIRMED AND AGREED TO:\nONE EQUITY PARTNERS IV, L.P.\nBy: OEP General Partner IV, L.P.,\nas General Partner\nBy: OEP Parent LLC,\nas General Partner\nBy: /s/ Gregory A. Belinfanti\nName: Gregory A. Belinfanti\nTitle: Managing Director
+2b72f7fc2e04f6f08a77d4162e3be3eb.pdf	effective_date jurisdiction party term	EX-99.D.5 9 y31044exv99wdw5.htm EX-99.D.5: NON-DISCLOSURE AND CONFIDENTIALLY AGREEMENT\nExhibit (d)(5)\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nTHIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made and entered into as of the 16th day of July,\n2002 (hereinafter “Effective Date”), by and between Shire US Inc. (hereinafter “SHIRE”), and New River Pharmaceuticals Inc. (formerly, Lotus\nBiochemical Corporation), a Virginia corporation with offices located at The Governor Tyler, 1902 Downey Street, Radford, Virginia 24141\n(hereinafter “NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”).\nRecitals\nWHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and\nNEW RIVER may enter into a business relationship or may enter into one or more business transactions (hereinafter collectively referred to as\nthe “Business Purpose”); and\nWHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or\nboth Parties to disclose Confidential Information (as defined below) both orally and/or in writing; and\nWHEREAS the Parties intend that any Confidential Information disclosed by either Party shall be used by the other Party only to further the\nBusiness Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms\nof this Agreement.\nNOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions,\ncovenants and warranties herein contained, the Parties agree as follows:\n1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:\n(a) “Confidential Information” shall mean:\n(i) with respect to NEW RIVER, information as defined generally in section l(a)(ii) following, as well as information, in any format,\nwhether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including,\nwithout limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports,\npricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning\ncurrent or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER,\nwhich relates to NEW RIVER’s proprietary polypeptide and polymer conjugate chemistry and NEW RIVER’s platform technology\nCarrierwaveTM, and processes and analytical techniques associated with these products/technologies and their successors. Where any\nConfidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in\nthe public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE’s possession or to be\nthereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter\nacquire.\n(ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without\nlimitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or\nmethods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party’s business and is\n(a) proprietary to, about, or created by Disclosing Party; (b) gives Disclosing Party some competitive business advantage or the opportunity of\nobtaining such advantage or the disclosure of which could be detrimental to the interests of Disclosing Party; (c) which from all the relevant\ncircumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party or would appear to be of a\nproprietary nature and, therefore, should not be disclosed to a third party without the Disclosing Party’s consent; including business, financial,\ncustomer, supplier, and technical data; or (d) not generally known by non-Disclosing Party personnel.\n(iii) any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in\nconfidence and which is reduced to tangible form and such tangible form is delivered to the receiving party within ten (10) days after the date of\nfirst disclosure. If such Information was provided orally, the notice given to the Receiving Party shall include a written description of such\nInformation.\n(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.\n(c) “Receiving Party” shall mean the Party receiving disclosure of the Confidential Information.\n2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one Party to the other Party. This Agreement shall\napply to Confidential Information of the Parties’ parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein\nshall apply to the Parties’ parent, subsidiary and related companies.\n3. Non-Disclosure Obligation. Each Party agrees:\n(a) to hold the other Party’s Confidential Information in strict confidence;\n(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to\nits own Confidential Information;\n(c) not to disclose such Confidential Information to third parties; and\nPage2of7\n(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the\nDisclosing Party.\n4. Disclosure to Representatives. Each Party may disclose the other Party’s Confidential Information to its directors, officers, members,\nmanagers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement) who\nhave bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such\nrepresentatives not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the\nDisclosing Party.\n5. Non-Confidential Information. Confidential Information shall not include information which the Receiving Party is able to demonstrate by\ncompetent proof:\n(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the\nindustry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party;\n(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as\nshown by the Receiving Party’s written records;\n(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or\ndisclosure;\n(d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to\nConfidential Information furnished by the Disclosing Party;\n(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the\nReceiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or\n(f) is disclosed with the prior, written consent of the Disclosing Party.\n6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other party’s\nConfidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any\nand all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation,\nthat the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made.\nPage3of7\n7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party\nall materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof.\n8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nthe Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party, and will cooperate with the Disclosing\nParty in any reasonable fashion in order to assist the Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to\nthe Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement.\n10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter\ninto any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license\nunder any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or\nbecomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party\nagrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said\nPatent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the\nsubject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in\nbreach of this Agreement simply by acting in accordance with its terms and conditions.\n11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the\nDisclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm\nand significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy.\nAccordingly, each Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent\njurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information\nwithout the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at\nlaw or equity for such a breach.\n12. Termination. This Agreement shall became effective upon the Effective Date and shall remain in effect for five (5) years from the\nEffective Date unless extended by the written consent of the Parties.\nPage4of7\n13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and\nfollowed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or\n(b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows:\nIf to NEW RIVER:\nNew River Pharmaceuticals Inc.\nThe Governor Tyler\n1902 Downey Street\nRadford, VA 24141 USA\nAttention: Randal J. Kirk\nFax: (540) 633-7979\nWith a copy to:\nNew River Pharmaceuticals Inc.\nThe Governor Tyler\n1902 Downey Street\nRadford, VA 24141 USA\nAttention: Marcus E. Smith, Esq.\nFax No.: (540) 633-7971\nIf to SHIRE:\nShire US Inc.\n7900 Tanners Gate Drive\nFlorence, KY 41042 USA\nAttention: Jeff Martini\nFax: (859) 282-2103\nPage5of7\nWith a copy to:\nShire US Inc.\n7900 Tanners Gate Drive\nFlorence, KY 41042 USA\nAttention: Kevin T. Anderson, Esq.\nFax: (859)282-1794\nAny party may change its address for notices by giving the other party notice of such change in the manner provided above.\n14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6,\nsets forth the entire agreement between the Parties with respect to the subject matter hereof, and may not be modified or amended except by\nwritten agreement executed by the parties hereto.\n15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this\nAgreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is\nvalid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.\n16. Governing Law; Attorneys’ Fees. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in\naccordance with, the laws of the Commonwealth of Virginia applicable to agreements made and to be fully performed therein (excluding\nconflicts of laws provisions thereof). Each party irrevocably submits to the jurisdiction of the United States District Court for the Western District\nof the Commonwealth of Virginia for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements\nor transactions contemplated hereby, which is brought by or against any party and (i) each party hereby irrevocably agrees that all claims in\nrespect of any such suit, action or proceeding may be heard and determined in any such court, (ii) to the extent that any party has acquired, or\nhereafter may acquire, any immunity from jurisdiction of any such court or from any legal process therein, it hereby waives, to the fullest extent\npermitted by law, such immunity and (iii) agrees not to commence any action, suit or proceeding relating to this Agreement except in such court.\nEach party hereby waives, and agrees not to assert in any such suit, action or proceeding, in each case, to the fullest extent permitted by\napplicable law, any claim that (a) it is not personally subject to the jurisdiction of any such court, (b) it is immune from any legal process\n(whether through service or notice, attachment prior to judgment attachment in aid of execution, execution or otherwise) with respect to it or its\nproperty or (c) any such suit, action or proceeding is brought in an inconvenient forum. In any action to enforce the terms of this Agreement, the\nprevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses.\n17. Waiver. No waiver by either Party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of\nsuch provision or a waiver of any other provision of this Agreement. No waiver by either Party, whether express\nPage6of7\nor implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision\nof this Agreement.\n18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement, (b) it has the\nright to permit the other Party to evaluate Information in accordance herewith, and (c) the terms of this Agreement are not inconsistent with any\nother contractual or legal obligation it may have.\n19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange\nfacsimile copies of this Agreement, all of which taken together shall constitute one agreement.\nIN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.\nNew River Pharmaceuticals Inc.\nShire US Inc.\nBy:\n- s- Randal J. Kirk\nBy:\n- s- Jeffrey W. Martini\nRandal J. Kirk\nName: Jeffrey W. Martini\nChairman, President and CEO\nTitle: Director of Finance Officer\nShire US Inc.\nPage7of7\nL—000 000 8782\n(NEW RIVER PHARMACEUTICALS LOGO)\nJuly 13, 2004\nVia Email\nThomas Zulauf\nVice President, Business Development\nShire US Inc.\nRE: Non-Disclosure and Confidentiality Agreement dated as of July 16, 2002 (the “NCA”)\nDear Tom:\nI look forward to continuing the discussions regarding our companies. As these discussions will include confidential information from each party,\nwe can use the existing NCA with only a few minor changes:\n1) New River Pharmaceuticals Inc.’s street address has changed to 1881 Grove Avenue, Radford, Virginia 24141; and\n2) Given the nature of the projections and other confidential information to be discussed, the term of the NCA shall be extended from July 16,\n2007 to July 16, 2009 pursuant to Sections 12 and 14 of the NCA; and\n3) Other than these two amendments, the NCA shall remain unchanged and in full force and effect in accordance with its stated terms and\nconditions.\nIf these amendments are acceptable, please sign below to confirm your agreement and return a copy of the signed letter to my attention at 540-\n633-7939 (FAX).\nThank you, and I look forward to hearing from you.\nSincerely,\n-s - Randal J. Kirk\nRandal J. Kirk\nPresident & CEO\nSEEN & AGREED TO:\nShire US Inc.\nBy:\n- s- Thomas Zulauf\nThomas Zulauf\nVP, Business Development\nDate: Aug 16, 2004\nNEW RIVER PHARMACEUTICALS INC.\nThe Governor Tyler\n1881 Grove Avenue\nRadford, Virginia 24141\nOctober 29, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nRE: Amendment to Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as\nof July 16, 2002, as amended August 16, 2004 (the “NCA”)\nDear Ms. Kuhl:\nYou have informed us that Shire has conducted/is conducting a series of corporate reorganizations and restructurings that require additional\nparties to be added to the NCA for Shire’s consideration of New River Pharmaceutical Inc.’s product known as NRP104. Pursuant to Shire US\nInc.’s request, we hereby amend and supplement the NCA as follows:\n(1) The Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the following ten related entities and the employees of those\nentities in Shire’s review of New River Pharmaceutical Inc.’s Confidential Information under the NCA. These ten related entities shall be deemed\nauthorized representatives (and not “affiliates” or “third parties”) of Shire US Inc. as provided in Section 4 of the NCA, and they shall be bound\nby, and subject to, the terms of the NCA as though they had been original parties to the NCA:\nShire Pharmaceutical Inc. (Delaware)\nShire Biochem Inc. (Canada)\nShire LLC (Kentucky)\nShire Pharmaceutical Development Inc. (Maryland)\nShire US Manufacturing Inc. (Maryland)\nShire Development Inc. (Delaware)\nShire Pharmaceutical Development ltd (Great Britain)\nShire Pharmaceutical Group plc (Great Britain)\nShire Regulatory Inc. (Delaware)\nShire IP Services Corporation (Nova Scotia)\nShire US Inc. shall be responsible for the conduct and compliance of these authorized representatives.\nShannon M. Kuhl, Esq.\nOctober 29, 2004\nPage 2\n(2) Except as expressly set forth in this letter amendment, the NCA shall remain unchanged and in full force and effect in accordance with its\nstated terms and conditions.\nIf you concur in these amendments to the NCA, please confirm your agreement by signing, dating and returning a copy of this letter to the\nundersigned. Thank you.\nSincerely,\n-s - Randal J. Kirk\nRandal J. Kirk\nPresident & CEO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\n- s- XXXXX\nTitle: Officer\nDate: 29 Oct 04\nL—000 000 8858\nNEW RIVER PHARMACEUTICALS INC.\nThe Governor Tyler\n1881 Grove Avenue\nRadford, Virginia 24141\nNovember 12, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nRE: Amendment to Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated\nas of July 16, 2002, as amended August 16, 2004 and October 29, 2004 (the “NCA”)\nDear Ms. Kuhl:\nPursuant to Shire US Inc.’s request, we hereby amend and supplement the NCA as follows:\n(1) The Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the following individual consultant in its review of New\nRiver Pharmaceutical Inc.’s Confidential Information under the NCA. Upon the execution of this letter amendment, this individual consultant\nshall be deemed an authorized representative (and not an “affiliate” or “third party”) of Shire US Inc. as provided in Section 4 of the NCA, and\nshe shall be bound by the terms of the NCA as though she had been an original “Party” in the NCA:\nSusan Hawlk\n4969 Thornwood Trace\nAcworth,GA 30102\nShire US Inc. shall be responsible for the conduct and compliance of this authorized representative.\n(2) By her execution of this letter amendment, Susan Hawlk accepts and agrees to bound by the terms of the NCA as though she had been named\nas an original “Party” in the NCA, and she acknowledges that she shall not discuss, share, use or disclose any Confidential Information except as\nprovided in Section 4 of the NCA. Further, she confirms that she is authorized to enter into this letter agreement and that this letter agreement\nshall be binding upon her in accordance with its stated terms and conditions. A copy of the NCA is enclosed with this letter amendment for\nreference.\nShannon M. Kuhl, Esq.\nNovember 12, 2004\nPage 2\n(3) Except as expressly set forth in Sections (1) and (2) of this letter amendment, the NCA shall remain unchanged and in full force and effect in\naccordance with its stated terms and conditions.\nIf you concur in these amendments to the NCA, please confirm your agreement by signing, dating and returning a copy of this letter to the\nundersigned. Thank you.\nSincerely,\n-s - Randal J. Kirk\nRandal J. Kirk\nPresident & CEO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\n- s- Illegible\nTitle: V.P. Bus. Development\nDate: Nov 15, 2004\nSEEN & AGREED TO:\n-s - Susan Hawlk\nSusan Hawlk\nDate: November 12, 2004\nL—000 000 8859\nNEW RIVER PHARMACEUTICALS INC.\nThe Governor Tyler\n1881 Grove Avenue\nRadford, Virginia 24141\nNovember 15, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nRE: Amendment to Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as\nof July 16, 2002, as amended August 16, 2004 and October 29, 2004 (the “NCA”)\nDear Ms. Kuhl:\nPursuant to Shire US Inc.’s request, we hereby amend and supplement the NCA as follows:\n(1) The Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the following individual consultant in its review of New\nRiver Pharmaceutical Inc.’s Confidential Information under the NCA. Upon the execution of this letter amendment, this individual consultant\nshall be deemed an authorized representative (and not an “affiliate” or “third party”) of Shire US Inc. as provided in Section 4 of the NCA, and\nhe shall be bound by the terms of the NCA as though he had been an original “Party” in the NCA:\nClinical Development Consultants Inc.\n7301 RR 620 N, Suite #155-195\nAustin, TX 78726\nShire US Inc. shall be responsible for the conduct and compliance of this authorized representative.\n(2) By his execution of this letter amendment, Martin Garcia accepts and agrees to bound by the terms of the NCA as though he had been named\nas an original “Party” in the NCA, and he acknowledges that he shall not discuss, share, use or disclose any Confidential Information except as\nprovided in Section 4 of the NCA. Further, he confirms that he is authorized to enter into this letter agreement and that this letter agreement shall\nbe binding upon his in accordance with its stated terms and conditions. A copy of the NCA is enclosed with this letter amendment for reference.\nShannon M. Kuhl, Esq.\nNovember 15, 2004\nPage2\n(3) Except as expressly set forth in Sections (1) and (2) of this letter amendment, the NCA shall remain unchanged and in full force and effect in\naccordance with its stated terms and conditions.\nIf yon concur in these amendments to tbe NCA, please confirm your agreement by signing, dating and returning a copy of this letter to the\nundersigned. Thank you.\nSincerely\n-s - Randal J. Kirk\nRandal J. Kirk\nPresident & CEO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\n-s - XXXXX\nTitle: V. P. Business Development\nDate: 15 Nov 2004\nSEEN & AGREED TO:\nClinical Development Consultants, Inc.\n-s - Martin Garcia\nMartin Garcia, President\nDate: 15 NOV 04\n(NEW RIVER PHARMACEUTICALS LOGO)\nDecember 16, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nEric Smart\nAlbany Molecular Research, Inc.\n21 Corporate Circle\nAlbany, New York 12203\nRE: Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as of July 16,\n2002, as amended (the “Shire NCA”) and Non-Disclosure & Confidentiality Agreement between Albany Molecular Research, Inc.\nand New River Pharmaceuticals Inc. dated as of March 27, 2003 (the “Albany NCA”)\nDear Shannon and Eric:\nWe understand that Shire plans to conduct a January 4, 2005 audit of operations at Albany as they relate to New River’s product known as\nNRP104.\nBoth Shire and Albany have signed New River’s two-way Non-Disclosure & Confidentiality Agreement that governs all Confidential\nInformation related to NRP104. In both the Shire NCA and the Albany NCA Section 4 requires New River’s prior written permission to\nauthorize the disclosure of any New River Confidential Information to a third party.\nBy its signature below, New River hereby authorizes Shire and Albany to accomplish the audit for NRP104 and share with each other such New\nRiver Confidential Information required therefore, provided, however, that the Confidential Information regarding NRP104 shall remain New\nRiver ’s Confidential Information and be protected and governed by the respective NCAs.\nBy their signatures below, both Shire and Albany hereby agree to the foregoing provisions and agree that any disclosures of Albany’s\nConfidential Information\n1861 PRATT DRIVE, SUITE 1090 BLACKSBURG, VA 24060\n540 953-3405 540 953-3407 FAX www.nrpharma.com\nDecember 16, 2004\nPage 2\nto Shire, or Shire’ Confidential Information to Albany, shall be protected and governed by the NCAs.\nExcept as expressly set forth in this letter agreement, the NCAs shall remain unchanged and in full force and effect in accordance with their\nstated terms and conditions.\nPlease confirm your agreement by signing, dating and returning a copy of this letter to the undersigned. Thank you.\nSincerely,\n-s - Suma Krishnan\nSuma Krishnan\nVice President, Product Development\nOn behalf of\nKrish S. Krishnan\nCOO & CFO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\n- s- XXXXX\nTitle: Associate General Counsel\nDate: 1/11/05\nSEEN & AGREED TO:\nALBANY MOLECULAR RESEARCH, INC.\nBy:\n- s- XXXXX\nTitle: Vice President, Business Development\nDate: 1/7/05\nAPROVED AS TO CONTENT\n1/6/05\nL—000 000 8904\n(NEW RIVER PHARMACEUTICALS LOGO)\nDecember 16, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nFrancis P. McCune\nDirector of Legal Services, Patheon\n2110 East Galbraith Road\nCincinnati, OH 45237\nRE: Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as of July 16,\n2002, as amended (the “Shire NCA”) and Non-Disclosure & Confidentiality Agreement between Patheon Inc. and New River\nPharmaceuticals Inc. dated as of May 31, 2003 (the “Patheon NCA”)\nDear Ms. Kuhl and Mr. McCune:\nWe understand that Shire plans to conduct a January 11, 2005 audit of operations at Patheon as they relate to New River’s product known as\nNRP104.\nBoth Shire and Patheon have signed New River’s two-way Non-Disclosure & Confidentiality Agreement that governs all Confidential\nInformation related to NRP104. In both the Shire NCA and the Patheon NCA Section 4 requires New River’s prior written permission to\nauthorize the disclosure of any New River Confidential Information to a third party.\nBy its signature below, New River hereby authorizes Shire and Patheon to accomplish the audit for NRP104 and share with each other such New\nRiver Confidential Information required therefore, provided, however, that the Confidential Information regarding NRP104 shall remain New\nRiver ’s Confidential Information and be protected and governed by the respective NCAs.\nBy their signatures below, both Shire and Patheon hereby agree to the foregoing provisions and agree that any disclosures of Patheon’s\nConfidential Information\n1881 Grove Avenue\nRadford, Virginia 24141\nDecember 16, 2004\nPage 2\nto Shire, or Shire’ Confidential Information to Patheon, shall be protected and governed by the NCAs.\nExcept as expressly set forth in this letter agreement, the NCAs shall remain unchanged and in full force and effect in accordance with their\nstated terms and conditions.\nPlease confirm your agreement by signing, dating and returning a copy of this letter to the undersigned. Thank you.\nSincerely,\n-s - Krish S. Krishnan\nKrish S. Krishnan\nCOO & CFO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\n- s- XXXXX\nTitle: Senior Vice President, Associate General\nCounsel\nDate: 12/23/04\nSEEN & AGREED TO:\nPATHEON INC.\nBy:\n- s- Riccardo Trecroce\nRiccardo Trecroce,\nTitle: General Counsel & Senior Vice President\nCorporate Administration\nDate: January 3, 2005	EX-99.D.5 9 y31044exv99wdw5.htm EX-99.D.5: NON-DISCLOSURE AND CONFIDENTIALLY AGREEMENT\nExhibit (d)(5)\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nThais Non-Discrosure AND ConripENTIALITY AGREEMENT (hereinafter the “Agreement”) is made and entered into as of the 16th day of July,\n2002 (hereinafter “Effective Date”), by and between Shire US Inc. (hereinafter “SHIRE”), and New River Pharmaceuticals Inc. (formerly, Lotus\nBiochemical Corporation), a Virginia corporation with offices located at The Governor Tyler, 1902 Downey Street, Radford, Virginia 24141\n(hereinafter “NEW RIVER™) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties™).\nRecitals\nWHEREAs the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and\nNEW RIVER may enter into a business relationship or may enter into one or more business transactions (hereinafter collectively referred to as\nthe “Business Purpose”); and\nWHEREASs the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or\nboth Parties to disclose Confidential Information (as defined below) both orally and/or in writing; and\nWHEREASs the Parties intend that any Confidential Information disclosed by either Party shall be used by the other Party only to further the\nBusiness Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms\nof this Agreement.\nNow, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions,\ncovenants and warranties herein contained, the Parties agree as follows:\n1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:\n(a) “Confidential Information” shall mean:\n(i) with respect to NEW RIVER, information as defined generally in section 1(a)(ii) following, as well as information, in any format,\nwhether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including,\nwithout limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports,\npricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning\ncurrent or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER,\nwhich relates to NEW RIVER’s proprietary polypeptide and polymer conjugate chemistry and NEW RIVER’s platform technology\nCarrierwave™, and processes and analytical techniques associated with these products/technologies and their successors. Where any\nConfidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in\nthe public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE’s possession or to be\nthereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter\nacquire.\n(ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without\nlimitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or\nmethods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party’s business and is\n(a) proprietary to, about, or created by Disclosing Party; (b) gives Disclosing Party some competitive business advantage or the opportunity of\nobtaining such advantage or the disclosure of which could be detrimental to the interests of Disclosing Party; (c) which from all the relevant\ncircumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party or would appear to be of a\nproprietary nature and, therefore, should not be disclosed to a third party without the Disclosing Party’s consent; including business, financial,\ncustomer, supplier, and technical data; or (d) not generally known by non-Disclosing Party personnel.\n(iii) any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in\nconfidence and which is reduced to tangible form and such tangible form is delivered to the receiving party within ten (10) days after the date of\nfirst disclosure. If such Information was provided orally, the notice given to the Receiving Party shall include a written description of such\nInformation.\n(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.\n(c) “Receiving Party” shall mean the Party receiving disclosure of the Confidential Information.\n2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one Party to the other Party. This Agreement shall\napply to Confidential Information of the Parties’ parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein\nshall apply to the Parties’ parent, subsidiary and related companies.\n3. Non-Disclosure Obligation. Each Party agrees:\n(a) to hold the other Party’s Confidential Information in strict confidence;\n(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to\nits own Confidential Information;\n(c) not to disclose such Confidential Information to third parties; and\nPage 2 of 7\n(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the\nDisclosing Party.\n4. Disclosure to Representatives. Each Party may disclose the other Party’s Confidential Information to its directors, officers, members,\nmanagers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement) who\nhave bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such\nrepresentatives not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the\nDisclosing Party.\n5. Non-Confidential Information. Confidential Information shall not include information which the Receiving Party is able to demonstrate by\ncompetent proof:\n(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the\nindustry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party;\n(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as\nshown by the Receiving Party’s written records;\n(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or\ndisclosure;\n(d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to\nConfidential Information furnished by the Disclosing Party;\n(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the\nReceiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or\n(f) is disclosed with the prior, written consent of the Disclosing Party.\n6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other party’s\nConfidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any\nand all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation,\nthat the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made.\nPage 3 of 7\n7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party\nall materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof.\n8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nthe Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party, and will cooperate with the Disclosing\nParty in any reasonable fashion in order to assist the Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to\nthe Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement.\n10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter\ninto any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license\nunder any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or\nbecomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party\nagrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said\nPatent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the\nsubject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in\nbreach of this Agreement simply by acting in accordance with its terms and conditions.\n11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the\nDisclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm\nand significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy.\nAccordingly, each Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent\njurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information\nwithout the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at\nlaw or equity for such a breach.\n12. Termination. This Agreement shall became effective upon the Effective Date and shall remain in effect for five (5) years from the\nEffective Date unless extended by the written consent of the Parties.\nPage 4 of 7\n13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and\nfollowed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or\n(b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows:\nIf to NEW RIVER:\nNew River Pharmaceuticals Inc.\nThe Governor Tyler\n1902 Downey Street\nRadford, VA 24141 USA\nAttention: Randal J. Kirk\nFax: (540) 633-7979\nWith a copy to:\nNew River Pharmaceuticals Inc.\nThe Governor Tyler\n1902 Downey Street\nRadford, VA 24141 USA\nAttention: Marcus E. Smith, Esq.\nFax No.: (540) 633-7971\nIf to SHIRE:\nShire US Inc.\n7900 Tanners Gate Drive\nFlorence, KY 41042 USA\nAttention: Jeff Martini\nFax: (859) 282-2103\nPage 5 of 7\nWith a copy to:\nShire US Inc.\n7900 Tanners Gate Drive\nFlorence, KY 41042 USA\nAttention: Kevin T. Anderson, Esq.\nFax: (859)282-1794\nAny party may change its address for notices by giving the other party notice of such change in the manner provided above.\n14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6,\nsets forth the entire agreement between the Parties with respect to the subject matter hereof, and may not be modified or amended except by\nwritten agreement executed by the parties hereto.\n15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this\nAgreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is\nvalid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.\n16. Governing Law; Attorneys’ Fees. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in\naccordance with, the laws of the Commonwealth of Virginia applicable to agreements made and to be fully performed therein (excluding\nconflicts of laws provisions thereof). Each party irrevocably submits to the jurisdiction of the United States District Court for the Western District\nof the Commonwealth of Virginia for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements\nor transactions contemplated hereby, which is brought by or against any party and (i) each party hereby irrevocably agrees that all claims in\nrespect of any such suit, action or proceeding may be heard and determined in any such court, (ii) to the extent that any party has acquired, or\nhereafter may acquire, any immunity from jurisdiction of any such court or from any legal process therein, it hereby waives, to the fullest extent\npermitted by law, such immunity and (iii) agrees not to commence any action, suit or proceeding relating to this Agreement except in such court.\nEach party hereby waives, and agrees not to assert in any such suit, action or proceeding, in each case, to the fullest extent permitted by\napplicable law, any claim that (a) it is not personally subject to the jurisdiction of any such court, (b) it is immune from any legal process\n(whether through service or notice, attachment prior to judgment attachment in aid of execution, execution or otherwise) with respect to it or its\nproperty or (c) any such suit, action or proceeding is brought in an inconvenient forum. In any action to enforce the terms of this Agreement, the\nprevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses.\n \n17. Waiver. No waiver by either Party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of\nsuch provision or a waiver of any other provision of this Agreement. No waiver by either Party, whether express\nPage 6 of 7\nor implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision\nof this Agreement.\n18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement, (b) it has the\nright to permit the other Party to evaluate Information in accordance herewith, and (c) the terms of this Agreement are not inconsistent with any\nother contractual or legal obligation it may have.\n19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange\nfacsimile copies of this Agreement, all of which taken together shall constitute one agreement.\nIn WiTnESs WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.\nNew River Pharmaceuticals Inc. Shire US Inc.\nBy: | g.-s- Randal J. Kirk By: | g.-s- Jeffrey W. Martini\nRandal J. Kirk Name: Jeffrey W. Martini\nChairman, President and CEO Title: Director of Finance Officer\nShire US Inc.\nPage 7 of 7\nL—000 000 8782\n|# (NEW RIVER PHARMACEUTICALS LOGO)\nJuly 13, 2004\nVia Email\nThomas Zulauf\nVice President, Business Development\nShire US Inc.\nDear Tom:\nI look forward to continuing the discussions regarding our companies. As these discussions will include confidential information from each party,\nwe can use the existing NCA with only a few minor changes:\n1) New River Pharmaceuticals Inc.’s street address has changed to 1881 Grove Avenue, Radford, Virginia 24141; and\n2) Given the nature of the projections and other confidential information to be discussed, the term of the NCA shall be extended from July 16,\n2007 to July 16, 2009 pursuant to Sections 12 and 14 of the NCA; and\n3) Other than these two amendments, the NCA shall remain unchanged and in full force and effect in accordance with its stated terms and\nconditions.\nIf these amendments are acceptable, please sign below to confirm your agreement and return a copy of the signed letter to my attention at 540-\n633-7939 (FAX).\nThank you, and I look forward to hearing from you.\nSincerely,\ng.S Randal J. Kirk\nRandal J. Kirk\nPresident & CEO\nSEEN & AGREED TO:\nShire US Inc.\nBy: |p.-S- Thomas Zulauf\nThomas Zulauf\nVP, Business Development\nDate: Aug 16, 2004\nNEW RIVER PHARMACEUTICALS INC.\nThe Governor Tyler\n1881 Grove Avenue\nRadford, Virginia 24141\nOctober 29, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nRE: Amendment to Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as\nof July 16, 2002, as amended August 16, 2004 (the “NCA”)\nDear Ms. Kuhl:\nYou have informed us that Shire has conducted/is conducting a series of corporate reorganizations and restructurings that require additional\nparties to be added to the NCA for Shire’s consideration of New River Pharmaceutical Inc.’s product known as NRP104. Pursuant to Shire US\nInc.’s request, we hereby amend and supplement the NCA as follows:\n(1) The Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the following ten related entities and the employees of those\nentities in Shire’s review of New River Pharmaceutical Inc.’s Confidential Information under the NCA. These ten related entities shall be deemed\nauthorized representatives (and not “affiliates” or “third parties”) of Shire US Inc. as provided in Section 4 of the NCA, and they shall be bound\nby, and subject to, the terms of the NCA as though they had been original parties to the NCA:\nShire Pharmaceutical Inc. (Delaware)\nShire Biochem Inc. (Canada)\nShire LL.C (Kentucky)\nShire Pharmaceutical Development Inc. (Maryland)\nShire US Manufacturing Inc. (Maryland)\nShire Development Inc. (Delaware)\nShire Pharmaceutical Development ltd (Great Britain)\nShire Pharmaceutical Group plc (Great Britain)\nShire Regulatory Inc. (Delaware)\nShire IP Services Corporation (Nova Scotia)\nShire US Inc. shall be responsible for the conduct and compliance of these authorized representatives.\nShannon M. Kuhl, Esq.\nOctober 29, 2004\nPage 2\n(2) Except as expressly set forth in this letter amendment, the NCA shall remain unchanged and in full force and effect in accordance with its\nstated terms and conditions.\nIf you concur in these amendments to the NCA, please confirm your agreement by signing, dating and returning a copy of this letter to the\nundersigned. Thank you.\nSincerely,\n25" Randal J. Kirk\nRandal J. Kirk\nPresident & CEO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy: |p.-5- XXXXX\nTitle: Officer\nDate: 29 Oct 04\nL—000 000 8858\nNEW RIVER PHARMACEUTICALS INC.\nThe Governor Tyler\n1881 Grove Avenue\nRadford, Virginia 24141\nNovember 12, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nRE:  Amendment to Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated\nas of July 16, 2002, as amended August 16, 2004 and October 29, 2004 (the “NCA”)\nDear Ms. Kuhl:\nPursuant to Shire US Inc.’s request, we hereby amend and supplement the NCA as follows:\n(1) The Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the following individual consultant in its review of New\nRiver Pharmaceutical Inc.’s Confidential Information under the NCA. Upon the execution of this letter amendment, this individual consultant\nshall be deemed an authorized representative (and not an “affiliate” or “third party”) of Shire US Inc. as provided in Section 4 of the NCA, and\nshe shall be bound by the terms of the NCA as though she had been an original “Party” in the NCA:\nSusan Hawlk\n4969 Thornwood Trace\nAcworth,GA 30102\nShire US Inc. shall be responsible for the conduct and compliance of this authorized representative.\n(2) By her execution of this letter amendment, Susan Hawlk accepts and agrees to bound by the terms of the NCA as though she had been named\nas an original “Party” in the NCA, and she acknowledges that she shall not discuss, share, use or disclose any Confidential Information except as\nprovided in Section 4 of the NCA. Further, she confirms that she is authorized to enter into this letter agreement and that this letter agreement\nshall be binding upon her in accordance with its stated terms and conditions. A copy of the NCA is enclosed with this letter amendment for\nreference.\nShannon M. Kuhl, Esq.\nNovember 12, 2004\nPage 2\n(3) Except as expressly set forth in Sections (1) and (2) of this letter amendment, the NCA shall remain unchanged and in full force and effect in\naccordance with its stated terms and conditions.\nIf you concur in these amendments to the NCA, please confirm your agreement by signing, dating and returning a copy of this letter to the\nundersigned. Thank you.\nSincerely,\n- '-s- Randal J. Kirk\nRandal J. Kirk\nPresident & CEO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy: |p-s-lllegible\nTitle: V.P. Bus. Development\nDate: Nov 15, 2004\nSEEN & AGREED TO:\ne '-s- Susan Hawlk\nSusan Hawlk\nDate: November 12, 2004\nL—000 000 8859\nNEW RIVER PHARMACEUTICALS INC.\nThe Governor Tyler\n1881 Grove Avenue\nRadford, Virginia 24141\nNovember 15, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nRE: Amendment to Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as\nof July 16, 2002, as amended August 16, 2004 and October 29, 2004 (the “NCA”)\nDear Ms. Kuhl:\nPursuant to Shire US Inc.’s request, we hereby amend and supplement the NCA as follows:\n(1) The Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the following individual consultant in its review of New\nRiver Pharmaceutical Inc.’s Confidential Information under the NCA. Upon the execution of this letter amendment, this individual consultant\nshall be deemed an authorized representative (and not an “affiliate” or “third party”) of Shire US Inc. as provided in Section 4 of the NCA, and\nhe shall be bound by the terms of the NCA as though he had been an original “Party” in the NCA:\nClinical Development Consultants Inc.\n7301 RR 620 N, Suite #155-195\nAustin, TX 78726\nShire US Inc. shall be responsible for the conduct and compliance of this authorized representative.\n(2) By his execution of this letter amendment, Martin Garcia accepts and agrees to bound by the terms of the NCA as though he had been named\nas an original “Party” in the NCA, and he acknowledges that he shall not discuss, share, use or disclose any Confidential Information except as\nprovided in Section 4 of the NCA. Further, he confirms that he is authorized to enter into this letter agreement and that this letter agreement shall\nbe binding upon his in accordance with its stated terms and conditions. A copy of the NCA is enclosed with this letter amendment for reference.\nShannon M. Kuhl, Esq.\nNovember 15, 2004\nPage2\n(3) Except as expressly set forth in Sections (1) and (2) of this letter amendment, the NCA shall remain unchanged and in full force and effect in\naccordance with its stated terms and conditions.\nIf yon concur in these amendments to tbe NCA, please confirm your agreement by signing, dating and returning a copy of this letter to the\nundersigned. Thank you.\nSincerely\n- '-s- Randal J. Kirk\nRandal J. Kirk\nPresident & CEO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy: |p.s- XXXXX\nTitle: V. P. Business Development\nDate: 15 Nov 2004\nSEEN & AGREED TO:\nClinical Development Consultants, Inc.\ne '-s- Martin Garcia\nMartin Garcia, President\nDate: 15 NOV 04\n|# . (NEW RIVER PHARMACEUTICALS LOGO)\nDecember 16, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nEric Smart\nAlbany Molecular Research, Inc.\n21 Corporate Circle\nAlbany, New York 12203\nRE: Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as of July 16,\n2002, as amended (the “Shire NCA”) and Non-Disclosure & Confidentiality Agreement between Albany Molecular Research, Inc.\nand New River Pharmaceuticals Inc. dated as of March 27, 2003 (the “Albany NCA”)\nDear Shannon and Eric:\nWe understand that Shire plans to conduct a January 4, 2005 audit of operations at Albany as they relate to New River’s product known as\nNRP104.\nBoth Shire and Albany have signed New River’s two-way Non-Disclosure & Confidentiality Agreement that governs all Confidential\nInformation related to NRP104. In both the Shire NCA and the Albany NCA Section 4 requires New River’s prior written permission to\nauthorize the disclosure of any New River Confidential Information to a third party.\nBy its signature below, New River hereby authorizes Shire and Albany to accomplish the audit for NRP104 and share with each other such New\nRiver Confidential Information required therefore, provided, however, that the Confidential Information regarding NRP104 shall remain New\nRiver’s Confidential Information and be protected and governed by the respective NCAs.\nBy their signatures below, both Shire and Albany hereby agree to the foregoing provisions and agree that any disclosures of Albany’s\nConfidential Information\n1861 PRATT DRIVE, SUITE 1090 BLACKSBURG, VA 24060\n540 953-3405 540 953-3407 rax www.nrpharma.com\nDecember 16, 2004\nPage 2\nto Shire, or Shire’ Confidential Information to Albany, shall be protected and governed by the NCAs.\nExcept as expressly set forth in this letter agreement, the NCAs shall remain unchanged and in full force and effect in accordance with their\nstated terms and conditions.\nPlease confirm your agreement by signing, dating and returning a copy of this letter to the undersigned. Thank you.\nSincerely,\nP S Suma Krishnan\nSuma Krishnan\nVice President, Product Development\nOn behalf of\nKrish S. Krishnan\nCOO & CFO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy: |p.-s- XXXXX\nTitle: Associate General Counsel\nDate: 1/11/05\nSEEN & AGREED TO:\nALBANY MOLECULAR RESEARCH, INC.\nBy: |p.-5- XXXXX\nTitle: Vice President, Business Development\nDate: 1/7/05\nAPROVED AS TO CONTENT\n1/6/05\nL—000 000 8904\n|# . (NEW RIVER PHARMACEUTICALS LOGO)\nDecember 16, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nFrancis P. McCune\nDirector of Legal Services, Patheon\n2110 East Galbraith Road\nCincinnati, OH 45237\nRE: Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as of July 16,\n2002, as amended (the “Shire NCA”) and Non-Disclosure & Confidentiality Agreement between Patheon Inc. and New River\nPharmaceuticals Inc. dated as of May 31, 2003 (the “Patheon NCA”)\nDear Ms. Kuhl and Mr. McCune:\nWe understand that Shire plans to conduct a January 11, 2005 audit of operations at Patheon as they relate to New River’s product known as\nNRP104.\nBoth Shire and Patheon have signed New River’s two-way Non-Disclosure & Confidentiality Agreement that governs all Confidential\nInformation related to NRP104. In both the Shire NCA and the Patheon NCA Section 4 requires New River’s prior written permission to\nauthorize the disclosure of any New River Confidential Information to a third party.\nBy its signature below, New River hereby authorizes Shire and Patheon to accomplish the audit for NRP104 and share with each other such New\nRiver Confidential Information required therefore, provided, however, that the Confidential Information regarding NRP104 shall remain New\nRiver’s Confidential Information and be protected and governed by the respective NCAs.\nBy their signatures below, both Shire and Patheon hereby agree to the foregoing provisions and agree that any disclosures of Patheon’s\nConfidential Information\n1881 Grove Avenue\nRadford, Virginia 24141\nDecember 16, 2004\nPage 2\nto Shire, or Shire’ Confidential Information to Patheon, shall be protected and governed by the NCAs.\nExcept as expressly set forth in this letter agreement, the NCAs shall remain unchanged and in full force and effect in accordance with their\nstated terms and conditions.\nPlease confirm your agreement by signing, dating and returning a copy of this letter to the undersigned. Thank you.\nSincerely,\nPSS Krish S. Krishnan\nKrish S. Krishnan\nCOO & CFO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy: g oS- XXXXX\nTitle: Senior Vice President, Associate General\nCounsel\nDate: 12/23/04\nSEEN & AGREED TO:\nPATHEON INC.\nBy: s Riccardo Trecroce\nRiccardo Trecroce,\nTitle: General Counsel & Senior Vice President\nCorporate Administration\nDate: January 3, 2005	EX-99.D.5 9 y31044exv99wdw5.htm EX-99.D.5: NON-DISCLOSURE AND CONFIDENTIALLY AGREEMENT\nExhibit (d)(5)\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nTHIs NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (hereinafter the "Agreement") is made and entered into as of the 16th day of July,\n2002 (hereinafter "Effective Date"), by and between Shire US Inc. (hereinafter "SHIRE"), and New River Pharmaceuticals Inc. (formerly, Lotus\nBiochemical Corporation), a Virginia corporation with offices located at The Governor Tyler, 1902 Downey Street, Radford, Virginia 24141\n(hereinafter "NEW RIVER") (each individually hereinafter referred to as a "Party" and collectively referred to as "Parties").\nRecitals\nWHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and\nNEW RIVER may enter into a business relationship or may enter into one or more business transactions (hereinafter collectively referred to as\nthe "Business Purpose"); and\nWHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or\nboth Parties to disclose Confidential Information (as defined below) both orally and/or in writing; and\nWHEREAS the Parties intend that any Confidential Information disclosed by either Party shall be used by the other Party only to further the\nBusiness Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms\nof this Agreement.\nNow, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions,\ncovenants and warranties herein contained, the Parties agree as follows:\n1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:\n(a) "Confidential Information" shall mean:\n(i) with respect to NEW RIVER, information as defined generally in section 1(a)(ii) following, as well as information, in any format,\nwhether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including,\nwithout limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports,\npricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning\ncurrent or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER,\nwhich relates to NEW RIVER's proprietary polypeptide and polymer conjugate chemistry and NEW RIVER's platform technology\nCarrierwaveTM, and processes and analytical techniques associated with these products/technologies and their successors. Where any\nConfidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in\nthe public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE'S possession or to be\nthereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter\nacquire.\n(ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without\nlimitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services\nor\nmethods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party's business and is\n(a)\nproprietary\nto,\nabout,\nor\ncreated\nby\nDisclosing\nParty;\n(b)\ngives\nDisclosing\nParty\nsome\ncompetitive\nbusiness\nadvantage\nor\nthe\nopportunity\nof\nobtaining such advantage or the disclosure of which could be detrimental to the interests of Disclosing Party; (c) which from all the relevant\ncircumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party or would appear to be of a\nproprietary nature and, therefore, should not be disclosed to a third party without the Disclosing Party's consent; including business, financial,\ncustomer, supplier, and technical data; or (d) not generally known by non-Disclosing Party personnel.\n(iii) any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in\nconfidence and which is reduced to tangible form and such tangible form is delivered to the receiving party within ten (10) days after the date of\nfirst disclosure. If such Information was provided orally, the notice given to the Receiving Party shall include a written description of such\nInformation.\n(b) "Disclosing Party" shall mean the Party disclosing Confidential Information.\n(c) "Receiving Party" shall mean the Party receiving disclosure of the Confidential Information.\n2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one Party to the other Party. This Agreement shall\napply to Confidential Information of the Parties' parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein\nshall apply to the Parties' parent, subsidiary and related companies.\n3. Non-Disclosure Obligation. Each Party agrees:\n(a) to hold the other Party's Confidential Information in strict confidence;\n(b) to exercise at least the same care in protecting the other Party's Confidential Information from disclosure as the Party uses with regard to\nits own Confidential Information;\n(c) not to disclose such Confidential Information to third parties; and\nPage 2 of 7\n(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the\nDisclosing Party.\n4. Disclosure to Representatives. Each Party may disclose the other Party's Confidential Information to its directors, officers, members,\nmanagers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement)\nwho\nhave bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such\nrepresentatives not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of\nthe\nDisclosing Party.\n5. Non-Confidential Information. Confidential Information shall not include information which the Receiving Party is able to demonstrate by\ncompetent proof:\n(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the\nindustry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party;\n(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as\nshown by the Receiving Party's written records;\n(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or\ndisclosure;\n(d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to\nConfidential Information furnished by the Disclosing Party;\n(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the\nReceiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or\n(f) is disclosed with the prior, written consent of the Disclosing Party.\n6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other party's\nConfidential Information from the premises of the Disclosing Party without the Disclosing Party's consent. Each Party agrees to comply with any\nand all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation,\nthat the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made.\nPage 3 of 7\n7. Return of Confidential Information. Upon the Disclosing Party's request, the Receiving Party will promptly return to the Disclosing Party\nall materials or tangible items containing the Disclosing Party's Confidential Information and all copies thereof.\n8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nthe Disclosing Party's Confidential Information, or any breach of the Agreement by the Receiving Party, and will cooperate with the Disclosing\nParty in any reasonable fashion in order to assist the Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights\nto\nthe Receiving Party, by license or otherwise, to use any of the Disclosing Party's Confidential Information except as specified in this Agreement\n10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter\ninto any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license\nunder any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or\nbecomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party\nagrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said\nPatent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the\nsubject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in\nbreach of this Agreement simply by acting in accordance with its terms and conditions.\n11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party's Confidential information is owned solely by the\nDisclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause\nirreparable\nharm\nand significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy.\nAccordingly, each Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent\njurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information\nwithout the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available\nat\nlaw or equity for such a breach.\n12. Termination. This Agreement shall became effective upon the Effective Date and shall remain in effect for five (5) years from the\nEffective Date unless extended by the written consent of the Parties.\nPage 4 of 7\n13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and\nfollowed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or\n(b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows:\nIf to NEW RIVER:\nNew River Pharmaceuticals Inc.\nThe Governor Tyler\n1902 Downey Street\nRadford, VA 24141 USA\nAttention: Randal J. Kirk\nFax: (540) 633-7979\nWith a copy to:\nNew River Pharmaceuticals Inc.\nThe Governor Tyler\n1902 Downey Street\nRadford, VA 24141 USA\nAttention: Marcus E. Smith, Esq.\nFax No.: (540) 633-7971\nIf to SHIRE:\nShire US Inc.\n7900 Tanners Gate Drive\nFlorence, KY 41042 USA\nAttention: Jeff Martini\nFax: (859) 282-2103\nPage 5 of 7\nWith a copy to:\nShire US Inc.\n7900 Tanners Gate Drive\nFlorence, KY 41042 USA\nAttention: Kevin T. Anderson, Esq.\nFax: (859)282-1794\nAny party may change its address for notices by giving the other party notice of such change in the manner provided above.\n14. Integration This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6,\nsets forth the entire agreement between the Parties with respect to the subject matter hereof, and may not be modified or amended except by\nwritten agreement executed by the parties hereto.\n15. Severability.. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this\nAgreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is\nvalid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.\n16. Governing Law; Attorneys' Fees. The validity and interpretation of this Agreement shall be governed by, and construed and enforced\nin\naccordance with, the laws of the Commonwealth of Virginia applicable to agreements made and to be fully performed therein (excluding\nconflicts of laws provisions thereof). Each party irrevocably submits to the jurisdiction of the United States District Court for the Western District\nof the Commonwealth of Virginia for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements\nor transactions contemplated hereby, which is brought by or against any party and (i) each party hereby irrevocably agrees that all claims in\nrespect of any such suit, action or proceeding may be heard and determined in any such court, (ii) to the extent that any party has acquired, or\nhereafter may acquire, any immunity from jurisdiction of any such court or from any legal process therein, it hereby waives, to the fullest extent\npermitted by law, such immunity and (iii) agrees not to commence any action, suit or proceeding relating to this Agreement except in such court.\nEach party hereby waives, and agrees not to assert in any such suit, action or proceeding, in each case, to the fullest extent permitted by\napplicable law, any claim that (a) it is not personally subject to the jurisdiction of any such court, (b) it is immune from any legal process\n(whether through service or notice, attachment prior to judgment attachment in aid of execution, execution or otherwise) with respect to it or its\nproperty or (c) any such suit, action or proceeding is brought in an inconvenient forum. In any action to enforce the terms of this Agreement, the\nprevailing party shall be entitled to recover its reasonable attorneys' fees and expenses.\n17. Waiver. No waiver by either Party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of\nsuch provision or a waiver of any other provision of this Agreement. No waiver by either Party, whether express\nPage 6 of 7\nor implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision\nof this Agreement.\n18. Binding Authority.. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement, (b) it has the\nright to permit the other Party to evaluate Information in accordance herewith, and (c) the terms of this Agreement are not inconsistent with any\nother contractual or legal obligation it may have.\n19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange\nfacsimile copies of this Agreement, all of which taken together shall constitute one agreement.\nIN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.\nNew River Pharmaceuticals Inc.\nShire US Inc.\nBy:\nRandal J. Kirk\nBy:\nJeffrey W. Martini\nRandal J. Kirk\nName: Jeffrey W. Martini\nChairman, President and CEO\nTitle: Director of Finance Officer\nShire US Inc.\nPage 7 of 7\nL-000 000 8782\n(NEW RIVER PHARMACEUTICALS LOGO)\nJuly 13, 2004\nVia Email\nThomas Zulauf\nVice President, Business Development\nShire US Inc.\nRE: Non-Disclosure and Confidentiality. Agreement dated as of July. 16,2002 (the "NCA")\nDear Tom:\nI look forward to continuing the discussions regarding our companies. As these discussions will include confidential information from each party,\nwe can use the existing NCA with only a few minor changes:\n1) New River Pharmaceuticals Inc.'s street address has changed to 1881 Grove Avenue, Radford, Virginia 24141; and\n2)\nGiven the nature of the projections and other confidential information to be discussed, the term of the NCA shall be extended from July 16,\n2007 to July 16, 2009 pursuant to Sections 12 and 14 of the NCA; and\n3) Other than these two amendments, the NCA shall remain unchanged and in full force and effect in accordance with its stated terms and\nconditions.\nIf these amendments are acceptable, please sign below to confirm your agreement and return a copy of the signed letter to my attention at 540-\n633-7939 (FAX).\nThank you, and I look forward to hearing from you.\nSincerely,\nRandal J. Kirk\nRandal J. Kirk\nPresident & CEO\nSEEN & AGREED TO:\nShire US Inc.\nBy:\nThomas Zulauf\nThomas Zulauf\nVP, Business Development\nDate: Aug 16, 2004\nNEW RIVER PHARMACEUTICALS INC.\nThe Governor Tyler\n1881 Grove Avenue\nRadford, Virginia 24141\nOctober 29, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nRE: Amendment to Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as\nof July 16, 2002, as amended August 16, 2004 (the "NCA")\nDear Ms. Kuhl:\nYou have informed us that Shire has conducted/is conducting a series of corporate reorganizations and restructurings that require additional\nparties to be added to the NCA for Shire's consideration of New River Pharmaceutical Inc.'s product known as NRP104. Pursuant to Shire US\nInc.'s request, we hereby amend and supplement the NCA as follows:\n(1)\nThe Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the following ten related entities and the employees of those\nentities in Shire's review of New River Pharmaceutical Inc.'s Confidential Information under the NCA. These ten related entities shall be deemed\nauthorized representatives (and not "affiliates" or "third parties") of Shire US Inc. as provided in Section 4 of the NCA, and they shall be bound\nby, and subject to, the terms of the NCA as though they had been original parties to the NCA:\nShire Pharmaceutical Inc. (Delaware)\nShire Biochem Inc. (Canada)\nShire LLC (Kentucky)\nShire Pharmaceutical Development Inc. (Maryland)\nShire US Manufacturing Inc. (Maryland)\nShire Development Inc. (Delaware)\nShire Pharmaceutical Development Itd (Great Britain)\nShire Pharmaceutical Group plc (Great Britain)\nShire Regulatory Inc. (Delaware)\nShire IP Services Corporation (Nova Scotia)\nShire US Inc. shall be responsible for the conduct and compliance of these authorized representatives.\nShannon M. Kuhl, Esq.\nOctober 29, 2004\nPage 2\n(2) Except as expressly set forth in this letter amendment, the NCA shall remain unchanged and in full force and effect in accordance with its\nstated terms and conditions.\nIf you concur in these amendments to the NCA, please confirm your agreement by signing, dating and returning a copy of this letter to the\nundersigned. Thank you.\nSincerely,\nRandal J. Kirk\nRandal J. Kirk\nPresident & CEO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\nXXXXX\nTitle: Officer\nDate: 29 Oct 04\nL-000 000 8858\nNEW RIVER PHARMACEUTICALS INC.\nThe Governor Tyler\n1881 Grove Avenue\nRadford, Virginia 24141\nNovember 12, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nRE:\nAmendment to Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated\nas of July 16, 2002, as amended August 16, 2004 and October 29, 2004 (the "NCA")\nDear Ms. Kuhl:\nPursuant to Shire US Inc.'s request, we hereby amend and supplement the NCA as follows:\n(1) The Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the following individual consultant in its review of New\nRiver Pharmaceutical Inc.'s Confidential Information under the NCA. Upon the execution of this letter amendment, this individual consultant\nshall be deemed an authorized representative (and not an "affiliate" or "third party") of Shire US Inc. as provided in Section 4 of the NCA, and\nshe shall be bound by the terms of the NCA as though she had been an original "Party" in the NCA:\nSusan Hawlk\n4969 Thornwood Trace\nAcworth,G GA 30102\nShire US Inc. shall be responsible for the conduct and compliance of this authorized representative.\n(2) By her execution of this letter amendment, Susan Hawlk accepts and agrees to bound by the terms of the NCA as though she had been named\nas an original "Party" in the NCA, and she acknowledges that she shall not discuss, share, use or disclose any Confidential Information except as\nprovided in Section 4 of the NCA. Further, she confirms that she is authorized to enter into this letter agreement and that this letter agreement\nshall be binding upon her in accordance with its stated terms and conditions. A copy of the NCA is enclosed with this letter amendment for\nreference.\nShannon M. Kuhl, Esq.\nNovember 12, 2004\nPage 2\n(3) Except as expressly set forth in Sections (1) and (2) of this letter amendment, the NCA shall remain unchanged and in full force and effect in\naccordance with its stated terms and conditions.\nIf you concur in these amendments to the NCA, please confirm your agreement by signing, dating and returning a copy of this letter to the\nundersigned. Thank you.\nSincerely,\nRandal J. Kirk\nRandal J. Kirk\nPresident & CEO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy: Illegible\nTitle: V.P. Bus. Development\nDate: Nov 15, 2004\nSEEN & AGREED TO:\nSusan Hawlk\nSusan Hawlk\nDate: November 12, 2004\nL-000 000 8859\nNEW RIVER PHARMACEUTICALS INC.\nThe Governor Tyler\n1881 Grove Avenue\nRadford, Virginia 24141\nNovember 15, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nRE: Amendment to Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as\nof July 16, 2002, as amended August 16, 2004 and October 29, 2004 (the "NCA")\nDear Ms. Kuhl:\nPursuant to Shire US Inc.'s request, we hereby amend and supplement the NCA as follows:\n(1) The Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the following individual consultant in its review of New\nRiver Pharmaceutical Inc.'s Confidential Information under the NCA. Upon the execution of this letter amendment, this individual consultant\nshall be deemed an authorized representative (and not an "affiliate" or "third party") of Shire US Inc. as provided in Section 4 of the NCA, and\nhe shall be bound by the terms of the NCA as though he had been an original "Party" in the NCA:\nClinical Development Consultants Inc.\n7301 RR 620 N, Suite #155-195\nAustin, TX 78726\nShire US Inc. shall be responsible for the conduct and compliance of this authorized representative.\n(2) By his execution of this letter amendment, Martin Garcia accepts and agrees to bound by the terms of the NCA as though he had been named\nas an original "Party" in the NCA, and he acknowledges that he shall not discuss, share, use or disclose any Confidential Information except as\nprovided in Section 4 of the NCA. Further, he confirms that he is authorized to enter into this letter agreement and that this letter agreement shall\nbe binding upon his in accordance with its stated terms and conditions. A copy of the NCA is enclosed with this letter amendment for reference.\nShannon M. Kuhl, Esq.\nNovember 15, 2004\nPage2\n(3) Except as expressly set forth in Sections (1) and (2) of this letter amendment, the NCA shall remain unchanged and in full force and effect in\naccordance with its stated terms and conditions.\nIf yon concur in these amendments to tbe NCA, please confirm your agreement by signing, dating and returning a copy of this letter to the\nundersigned. Thank you.\nSincerely\nRandal J. Kirk\nRandal J. Kirk\nPresident & CEO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\n-S- XXXXX\nTitle: V. P. Business Development\nDate: 15 Nov 2004\nSEEN & AGREED TO:\nClinical Development Consultants, Inc.\nMartin Garcia\nMartin Garcia, President\nDate: 15 NOV 04\n(NEW RIVER PHARMACEUTICALS LOGO)\nDecember 16, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nEric Smart\nAlbany Molecular Research, Inc.\n21 Corporate Circle\nAlbany, New York 12203\nRE: Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as of July 16,\n2002, as amended (the "Shire NCA") and Non-Disclosure & Confidentiality Agreement between Albany Molecular Research, Inc.\nand New River Pharmaceuticals Inc. dated as of March 27, 2003 (the "Albany NCA")\nDear Shannon and Eric:\nWe understand that Shire plans to conduct a January 4, 2005 audit of operations at Albany as they relate to New River's product known\nas\nNRP 104.\nBoth Shire and Albany have signed New River's two-way Non-Disclosure & Confidentiality Agreement that governs all Confidential\nInformation related to NRP104. In both the Shire NCA and the Albany NCA Section 4 requires New River's prior written permission to\nauthorize the disclosure of any New River Confidential Information to a third party.\nBy its signature below, New River hereby authorizes Shire and Albany to accomplish the audit for NRP104 and share with each other such New\nRiver Confidential Information required therefore, provided however, that the Confidential Information regarding NRP104 shall remain New\nRiver's Confidential Information and be protected and governed by the respective NCAs.\nBy their signatures below, both Shire and Albany hereby agree to the foregoing provisions and agree that any disclosures of Albany's\nConfidential Information\n1861 PRATT DRIVE, SUITE 1090 BLACKSBURG, VA 24060\n540 953-3405 540 953-3407 FAX www.nrpharma.com\nDecember 16, 2004\nPage 2\nto Shire, or Shire' Confidential Information to Albany, shall be protected and governed by the NCAs.\nExcept as expressly set forth in this letter agreement, the NCAs shall remain unchanged and in full force and effect in accordance with their\nstated terms and conditions.\nPlease confirm your agreement by signing, dating and returning a copy of this letter to the undersigned. Thank you.\nSincerely,\nSuma Krishnan\nSuma Krishnan\nVice President, Product Development\nOn behalf of\nKrish S. Krishnan\nCOO & CFO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy: XXXXX\nTitle: Associate General Counsel\nDate: 1/11/05\nSEEN & AGREED TO:\nALBANY MOLECULAR RESEARCH, INC.\nBy: XXXXX\nTitle: Vice President, Business Development\nDate: 1/7/05\nAPROVED AS TO CONTENT\n1/6/05\nL-000 000 8904\n(NEW RIVER PHARMACEUTICALS LOGO)\nDecember 16, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nFrancis P. McCune\nDirector of Legal Services, Patheon\n2110 East Galbraith Road\nCincinnati, OH 45237\nRE: Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as of July 16,\n2002, as amended (the "Shire NCA") and Non-Disclosure & Confidentiality Agreement between Patheon Inc. and New River\nPharmaceuticals Inc. dated as of May 31, 2003 (the "Patheon NCA")\nDear Ms. Kuhl and Mr. McCune:\nWe understand that Shire plans to conduct a January 11, 2005 audit of operations at Patheon as they relate to New River's product known as\nNRP104.\nBoth Shire and Patheon have signed New River's two-way Non-Disclosure & Confidentiality Agreement that governs all Confidential\nInformation related to NRP104. In both the Shire NCA and the Patheon NCA Section 4 requires New River's prior written permission to\nauthorize the disclosure of any New River Confidential Information to a third party.\nBy its signature below, New River hereby authorizes Shire and Patheon to accomplish the audit for NRP104 and share with each other such New\nRiver Confidential Information required therefore, provided, however, that the Confidential Information regarding NRP104 shall remain New\nRiver's Confidential Information and be protected and governed by the respective NCAs.\nBy their signatures below, both Shire and Patheon hereby agree to the foregoing provisions and agree that any disclosures of Patheon's\nConfidential Information\n1881 Grove Avenue\nRadford, Virginia 24141\nDecember 16, 2004\nPage 2\nto Shire, or Shire' Confidential Information to Patheon, shall be protected and governed by the NCAs.\nExcept as expressly set forth in this letter agreement, the NCAs shall remain unchanged and in full force and effect in accordance with their\nstated terms and conditions.\nPlease confirm your agreement by signing, dating and returning a copy of this letter to the undersigned. Thank you.\nSincerely,\nKrish S. Krishnan\nKrish S. Krishnan\nCOO & CFO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\n-s- XXXXX\nTitle: Senior Vice President, Associate General\nCounsel\nDate: 12/23/04\nSEEN & AGREED TO:\nPATHEON INC.\nBy:\n-s- Riccardo Trecroce\nRiccardo Trecroce,\nTitle: General Counsel & Senior Vice President\nCorporate Administration\nDate: January 3, 2005	EX-99.D.5 9 y31044exv99wdw5.htm EX-99.D.5: NON-DISCLOSURE AND CONFIDENTIALLY AGREEMENT\nExhibit (d)(5)\nNON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nTHIS NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT (hereinafter the “Agreement”) is made and entered into as of the 16th day of July,\n2002 (hereinafter “Effective Date”), by and between Shire US Inc. (hereinafter “SHIRE”), and New River Pharmaceuticals Inc. (formerly, Lotus\nBiochemical Corporation), a Virginia corporation with offices located at The Governor Tyler, 1902 Downey Street, Radford, Virginia 24141\n(hereinafter “NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”).\nRecitals\nWHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and\nNEW RIVER may enter into a business relationship or may enter into one or more business transactions (hereinafter collectively referred to as\nthe “Business Purpose”); and\nWHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either or\nboth Parties to disclose Confidential Information (as defined below) both orally and/or in writing; and\nWHEREAS the Parties intend that any Confidential Information disclosed by either Party shall be used by the other Party only to further the\nBusiness Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized parties by the terms\nof this Agreement.\nNOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions,\ncovenants and warranties herein contained, the Parties agree as follows:\n1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:\n(a) “Confidential Information” shall mean:\n(i) with respect to NEW RIVER, information as defined generally in section l(a)(ii) following, as well as information, in any format,\nwhether written, oral, visual, electronic, or otherwise, and whether commercial, technical, non-technical, or regulatory in nature, including,\nwithout limitation, data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, samples, reports,\npricing information, studies, findings, inventions, ideas, materials, documents, lists, financial information, investments, information concerning\ncurrent or proposed products, services or methods of manufacture, operation and/or business plans, whether or not originated by NEW RIVER,\nwhich relates to NEW RIVER’s proprietary polypeptide and polymer conjugate chemistry and NEW RIVER’s platform technology\nCarrierwaveTM, and processes and analytical techniques associated with these products/technologies and their successors. Where any\nConfidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various elements that may be contained in\nthe public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be in SHIRE’s possession or to be\nthereafter acquired by SHIRE merely because it embraces information in the public domain or general information that SHIRE may thereafter\nacquire.\n(ii) with respect to either Party, information, in any format, whether written, oral, visual, electronic, or otherwise, including, without\nlimitation, data, materials, documents, lists, financial information, investments, information concerning current or proposed products, services or\nmethods of operation and/or business plans, whether or not originated by the Disclosing Party, which is used in Disclosing Party’s business and is\n(a) proprietary to, about, or created by Disclosing Party; (b) gives Disclosing Party some competitive business advantage or the opportunity of\nobtaining such advantage or the disclosure of which could be detrimental to the interests of Disclosing Party; (c) which from all the relevant\ncircumstances should reasonably be assumed by Receiving Party to be confidential and proprietary to Disclosing Party or would appear to be of a\nproprietary nature and, therefore, should not be disclosed to a third party without the Disclosing Party’s consent; including business, financial,\ncustomer, supplier, and technical data; or (d) not generally known by non-Disclosing Party personnel.\n(iii) any information which the Disclosing Party orally or visually discloses and identifies at the time of disclosure as being disclosed in\nconfidence and which is reduced to tangible form and such tangible form is delivered to the receiving party within ten (10) days after the date of\nfirst disclosure. If such Information was provided orally, the notice given to the Receiving Party shall include a written description of such\nInformation.\n(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.\n(c) “Receiving Party” shall mean the Party receiving disclosure of the Confidential Information.\n2. Applicability. This Agreement shall apply to all Confidential Information disclosed by one Party to the other Party. This Agreement shall\napply to Confidential Information of the Parties’ parent, subsidiary and affiliated companies, and the nondisclosure obligations set forth herein\nshall apply to the Parties’ parent, subsidiary and related companies.\n3. Non-Disclosure Obligation. Each Party agrees:\n(a) to hold the other Party’s Confidential Information in strict confidence;\n(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to\nits own Confidential Information;\n(c) not to disclose such Confidential Information to third parties; and\nPage2of7\n(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior, written consent of the\nDisclosing Party.\n4. Disclosure to Representatives. Each Party may disclose the other Party’s Confidential Information to its directors, officers, members,\nmanagers, employees, legal advisors, and financial advisors (each bound by obligations of confidentiality consistent with this Agreement) who\nhave bona fide need to know, but only to the extent necessary to carry out the Business Purpose. Each Party agrees to instruct all such\nrepresentatives not to disclose such Confidential Information to third parties, including consultants, without the prior written permission of the\nDisclosing Party.\n5. Non-Confidential Information. Confidential Information shall not include information which the Receiving Party is able to demonstrate by\ncompetent proof:\n(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the\nindustry, or is now or later enters the public domain through no act or omission on the part of the Receiving Party;\n(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party under this Agreement as\nshown by the Receiving Party’s written records;\n(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or\ndisclosure;\n(d) is information which the Receiving Party can document was independently developed by the Receiving Party without reference to\nConfidential Information furnished by the Disclosing Party;\n(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided the\nReceiving Party uses reasonable efforts to give the Disclosing Party reasonable notice of such required disclosure; or\n(f) is disclosed with the prior, written consent of the Disclosing Party.\n6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other party’s\nConfidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any\nand all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation,\nthat the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made.\nPage3of7\n7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party\nall materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof.\n8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nthe Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party, and will cooperate with the Disclosing\nParty in any reasonable fashion in order to assist the Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to\nthe Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except as specified in this Agreement.\n10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter\ninto any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or license\nunder any patent, trade secret, copyright, trademark, or other proprietary rights of either party. In the event that the Confidential Information is or\nbecomes the subject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party\nagrees and understands that the Disclosing Party will have all rights and remedies available to it under the applicable law as a result of said\nPatent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright. In the event that the Confidential Information is or becomes the\nsubject of a, or a plurality of, Patent Application(s), Laid-Open Patent Application(s), Patent(s) or Copyright, the Receiving Party shall not be in\nbreach of this Agreement simply by acting in accordance with its terms and conditions.\n11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential information is owned solely by the\nDisclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm\nand significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy.\nAccordingly, each Party agrees that the Disclosing Party shall have the right to obtain an immediate injunction from any court of competent\njurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information\nwithout the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at\nlaw or equity for such a breach.\n12. Termination. This Agreement shall became effective upon the Effective Date and shall remain in effect for five (5) years from the\nEffective Date unless extended by the written consent of the Parties.\nPage4of7\n13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and\nfollowed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or\n(b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows:\nIf to NEW RIVER:\nNew River Pharmaceuticals Inc.\nThe Governor Tyler\n1902 Downey Street\nRadford, VA 24141 USA\nAttention: Randal J. Kirk\nFax: (540) 633-7979\nWith a copy to:\nNew River Pharmaceuticals Inc.\nThe Governor Tyler\n1902 Downey Street\nRadford, VA 24141 USA\nAttention: Marcus E. Smith, Esq.\nFax No.: (540) 633-7971\nIf to SHIRE:\nShire US Inc.\n7900 Tanners Gate Drive\nFlorence, KY 41042 USA\nAttention: Jeff Martini\nFax: (859) 282-2103\nPage5of7\nWith a copy to:\nShire US Inc.\n7900 Tanners Gate Drive\nFlorence, KY 41042 USA\nAttention: Kevin T. Anderson, Esq.\nFax: (859)282-1794\nAny party may change its address for notices by giving the other party notice of such change in the manner provided above.\n14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under paragraph 6,\nsets forth the entire agreement between the Parties with respect to the subject matter hereof, and may not be modified or amended except by\nwritten agreement executed by the parties hereto.\n15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this\nAgreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by a term or provision that is\nvalid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.\n16. Governing Law; Attorneys’ Fees. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in\naccordance with, the laws of the Commonwealth of Virginia applicable to agreements made and to be fully performed therein (excluding\nconflicts of laws provisions thereof). Each party irrevocably submits to the jurisdiction of the United States District Court for the Western District\nof the Commonwealth of Virginia for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any of the agreements\nor transactions contemplated hereby, which is brought by or against any party and (i) each party hereby irrevocably agrees that all claims in\nrespect of any such suit, action or proceeding may be heard and determined in any such court, (ii) to the extent that any party has acquired, or\nhereafter may acquire, any immunity from jurisdiction of any such court or from any legal process therein, it hereby waives, to the fullest extent\npermitted by law, such immunity and (iii) agrees not to commence any action, suit or proceeding relating to this Agreement except in such court.\nEach party hereby waives, and agrees not to assert in any such suit, action or proceeding, in each case, to the fullest extent permitted by\napplicable law, any claim that (a) it is not personally subject to the jurisdiction of any such court, (b) it is immune from any legal process\n(whether through service or notice, attachment prior to judgment attachment in aid of execution, execution or otherwise) with respect to it or its\nproperty or (c) any such suit, action or proceeding is brought in an inconvenient forum. In any action to enforce the terms of this Agreement, the\nprevailing party shall be entitled to recover its reasonable attorneys’ fees and expenses.\n17. Waiver. No waiver by either Party, whether express or implied, of any provision of this Agreement shall constitute a continuing waiver of\nsuch provision or a waiver of any other provision of this Agreement. No waiver by either Party, whether express\nPage6of7\nor implied, of any breach or default by the other party, shall constitute a waiver of any other breach or default of the same or any other provision\nof this Agreement.\n18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement, (b) it has the\nright to permit the other Party to evaluate Information in accordance herewith, and (c) the terms of this Agreement are not inconsistent with any\nother contractual or legal obligation it may have.\n19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange\nfacsimile copies of this Agreement, all of which taken together shall constitute one agreement.\nIN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.\nNew River Pharmaceuticals Inc.\nShire US Inc.\nBy:\n- s- Randal J. Kirk\nBy:\n- s- Jeffrey W. Martini\nRandal J. Kirk\nName: Jeffrey W. Martini\nChairman, President and CEO\nTitle: Director of Finance Officer\nShire US Inc.\nPage7of7\nL—000 000 8782\n(NEW RIVER PHARMACEUTICALS LOGO)\nJuly 13, 2004\nVia Email\nThomas Zulauf\nVice President, Business Development\nShire US Inc.\nRE: Non-Disclosure and Confidentiality Agreement dated as of July 16, 2002 (the “NCA”)\nDear Tom:\nI look forward to continuing the discussions regarding our companies. As these discussions will include confidential information from each party,\nwe can use the existing NCA with only a few minor changes:\n1) New River Pharmaceuticals Inc.’s street address has changed to 1881 Grove Avenue, Radford, Virginia 24141; and\n2) Given the nature of the projections and other confidential information to be discussed, the term of the NCA shall be extended from July 16,\n2007 to July 16, 2009 pursuant to Sections 12 and 14 of the NCA; and\n3) Other than these two amendments, the NCA shall remain unchanged and in full force and effect in accordance with its stated terms and\nconditions.\nIf these amendments are acceptable, please sign below to confirm your agreement and return a copy of the signed letter to my attention at 540-\n633-7939 (FAX).\nThank you, and I look forward to hearing from you.\nSincerely,\n-s - Randal J. Kirk\nRandal J. Kirk\nPresident & CEO\nSEEN & AGREED TO:\nShire US Inc.\nBy:\n- s- Thomas Zulauf\nThomas Zulauf\nVP, Business Development\nDate: Aug 16, 2004\nNEW RIVER PHARMACEUTICALS INC.\nThe Governor Tyler\n1881 Grove Avenue\nRadford, Virginia 24141\nOctober 29, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nRE: Amendment to Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as\nof July 16, 2002, as amended August 16, 2004 (the “NCA”)\nDear Ms. Kuhl:\nYou have informed us that Shire has conducted/is conducting a series of corporate reorganizations and restructurings that require additional\nparties to be added to the NCA for Shire’s consideration of New River Pharmaceutical Inc.’s product known as NRP104. Pursuant to Shire US\nInc.’s request, we hereby amend and supplement the NCA as follows:\n(1) The Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the following ten related entities and the employees of those\nentities in Shire’s review of New River Pharmaceutical Inc.’s Confidential Information under the NCA. These ten related entities shall be deemed\nauthorized representatives (and not “affiliates” or “third parties”) of Shire US Inc. as provided in Section 4 of the NCA, and they shall be bound\nby, and subject to, the terms of the NCA as though they had been original parties to the NCA:\nShire Pharmaceutical Inc. (Delaware)\nShire Biochem Inc. (Canada)\nShire LLC (Kentucky)\nShire Pharmaceutical Development Inc. (Maryland)\nShire US Manufacturing Inc. (Maryland)\nShire Development Inc. (Delaware)\nShire Pharmaceutical Development ltd (Great Britain)\nShire Pharmaceutical Group plc (Great Britain)\nShire Regulatory Inc. (Delaware)\nShire IP Services Corporation (Nova Scotia)\nShire US Inc. shall be responsible for the conduct and compliance of these authorized representatives.\nShannon M. Kuhl, Esq.\nOctober 29, 2004\nPage 2\n(2) Except as expressly set forth in this letter amendment, the NCA shall remain unchanged and in full force and effect in accordance with its\nstated terms and conditions.\nIf you concur in these amendments to the NCA, please confirm your agreement by signing, dating and returning a copy of this letter to the\nundersigned. Thank you.\nSincerely,\n-s - Randal J. Kirk\nRandal J. Kirk\nPresident & CEO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\n- s- XXXXX\nTitle: Officer\nDate: 29 Oct 04\nL—000 000 8858\nNEW RIVER PHARMACEUTICALS INC.\nThe Governor Tyler\n1881 Grove Avenue\nRadford, Virginia 24141\nNovember 12, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nRE: Amendment to Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated\nas of July 16, 2002, as amended August 16, 2004 and October 29, 2004 (the “NCA”)\nDear Ms. Kuhl:\nPursuant to Shire US Inc.’s request, we hereby amend and supplement the NCA as follows:\n(1) The Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the following individual consultant in its review of New\nRiver Pharmaceutical Inc.’s Confidential Information under the NCA. Upon the execution of this letter amendment, this individual consultant\nshall be deemed an authorized representative (and not an “affiliate” or “third party”) of Shire US Inc. as provided in Section 4 of the NCA, and\nshe shall be bound by the terms of the NCA as though she had been an original “Party” in the NCA:\nSusan Hawlk\n4969 Thornwood Trace\nAcworth,GA 30102\nShire US Inc. shall be responsible for the conduct and compliance of this authorized representative.\n(2) By her execution of this letter amendment, Susan Hawlk accepts and agrees to bound by the terms of the NCA as though she had been named\nas an original “Party” in the NCA, and she acknowledges that she shall not discuss, share, use or disclose any Confidential Information except as\nprovided in Section 4 of the NCA. Further, she confirms that she is authorized to enter into this letter agreement and that this letter agreement\nshall be binding upon her in accordance with its stated terms and conditions. A copy of the NCA is enclosed with this letter amendment for\nreference.\nShannon M. Kuhl, Esq.\nNovember 12, 2004\nPage 2\n(3) Except as expressly set forth in Sections (1) and (2) of this letter amendment, the NCA shall remain unchanged and in full force and effect in\naccordance with its stated terms and conditions.\nIf you concur in these amendments to the NCA, please confirm your agreement by signing, dating and returning a copy of this letter to the\nundersigned. Thank you.\nSincerely,\n-s - Randal J. Kirk\nRandal J. Kirk\nPresident & CEO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\n- s- Illegible\nTitle: V.P. Bus. Development\nDate: Nov 15, 2004\nSEEN & AGREED TO:\n-s - Susan Hawlk\nSusan Hawlk\nDate: November 12, 2004\nL—000 000 8859\nNEW RIVER PHARMACEUTICALS INC.\nThe Governor Tyler\n1881 Grove Avenue\nRadford, Virginia 24141\nNovember 15, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nRE: Amendment to Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as\nof July 16, 2002, as amended August 16, 2004 and October 29, 2004 (the “NCA”)\nDear Ms. Kuhl:\nPursuant to Shire US Inc.’s request, we hereby amend and supplement the NCA as follows:\n(1) The Parties to the NCA hereby amend the NCA to permit Shire US Inc. to utilize the following individual consultant in its review of New\nRiver Pharmaceutical Inc.’s Confidential Information under the NCA. Upon the execution of this letter amendment, this individual consultant\nshall be deemed an authorized representative (and not an “affiliate” or “third party”) of Shire US Inc. as provided in Section 4 of the NCA, and\nhe shall be bound by the terms of the NCA as though he had been an original “Party” in the NCA:\nClinical Development Consultants Inc.\n7301 RR 620 N, Suite #155-195\nAustin, TX 78726\nShire US Inc. shall be responsible for the conduct and compliance of this authorized representative.\n(2) By his execution of this letter amendment, Martin Garcia accepts and agrees to bound by the terms of the NCA as though he had been named\nas an original “Party” in the NCA, and he acknowledges that he shall not discuss, share, use or disclose any Confidential Information except as\nprovided in Section 4 of the NCA. Further, he confirms that he is authorized to enter into this letter agreement and that this letter agreement shall\nbe binding upon his in accordance with its stated terms and conditions. A copy of the NCA is enclosed with this letter amendment for reference.\nShannon M. Kuhl, Esq.\nNovember 15, 2004\nPage2\n(3) Except as expressly set forth in Sections (1) and (2) of this letter amendment, the NCA shall remain unchanged and in full force and effect in\naccordance with its stated terms and conditions.\nIf yon concur in these amendments to tbe NCA, please confirm your agreement by signing, dating and returning a copy of this letter to the\nundersigned. Thank you.\nSincerely\n-s - Randal J. Kirk\nRandal J. Kirk\nPresident & CEO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\n-s - XXXXX\nTitle: V. P. Business Development\nDate: 15 Nov 2004\nSEEN & AGREED TO:\nClinical Development Consultants, Inc.\n-s - Martin Garcia\nMartin Garcia, President\nDate: 15 NOV 04\n(NEW RIVER PHARMACEUTICALS LOGO)\nDecember 16, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nEric Smart\nAlbany Molecular Research, Inc.\n21 Corporate Circle\nAlbany, New York 12203\nRE: Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as of July 16,\n2002, as amended (the “Shire NCA”) and Non-Disclosure & Confidentiality Agreement between Albany Molecular Research, Inc.\nand New River Pharmaceuticals Inc. dated as of March 27, 2003 (the “Albany NCA”)\nDear Shannon and Eric:\nWe understand that Shire plans to conduct a January 4, 2005 audit of operations at Albany as they relate to New River’s product known as\nNRP104.\nBoth Shire and Albany have signed New River’s two-way Non-Disclosure & Confidentiality Agreement that governs all Confidential\nInformation related to NRP104. In both the Shire NCA and the Albany NCA Section 4 requires New River’s prior written permission to\nauthorize the disclosure of any New River Confidential Information to a third party.\nBy its signature below, New River hereby authorizes Shire and Albany to accomplish the audit for NRP104 and share with each other such New\nRiver Confidential Information required therefore, provided, however, that the Confidential Information regarding NRP104 shall remain New\nRiver ’s Confidential Information and be protected and governed by the respective NCAs.\nBy their signatures below, both Shire and Albany hereby agree to the foregoing provisions and agree that any disclosures of Albany’s\nConfidential Information\n1861 PRATT DRIVE, SUITE 1090 BLACKSBURG, VA 24060\n540 953-3405 540 953-3407 FAX www.nrpharma.com\nDecember 16, 2004\nPage 2\nto Shire, or Shire’ Confidential Information to Albany, shall be protected and governed by the NCAs.\nExcept as expressly set forth in this letter agreement, the NCAs shall remain unchanged and in full force and effect in accordance with their\nstated terms and conditions.\nPlease confirm your agreement by signing, dating and returning a copy of this letter to the undersigned. Thank you.\nSincerely,\n-s - Suma Krishnan\nSuma Krishnan\nVice President, Product Development\nOn behalf of\nKrish S. Krishnan\nCOO & CFO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\n- s- XXXXX\nTitle: Associate General Counsel\nDate: 1/11/05\nSEEN & AGREED TO:\nALBANY MOLECULAR RESEARCH, INC.\nBy:\n- s- XXXXX\nTitle: Vice President, Business Development\nDate: 1/7/05\nAPROVED AS TO CONTENT\n1/6/05\nL—000 000 8904\n(NEW RIVER PHARMACEUTICALS LOGO)\nDecember 16, 2004\nShannon M. Kuhl, Esq.\nAssociate Director, Legal Affairs, Shire\nOne Riverfront Place, Suite 900\nNewport, Kentucky 41071\nFrancis P. McCune\nDirector of Legal Services, Patheon\n2110 East Galbraith Road\nCincinnati, OH 45237\nRE: Non-Disclosure and Confidentiality Agreement between Shire US Inc. and New River Pharmaceuticals Inc. dated as of July 16,\n2002, as amended (the “Shire NCA”) and Non-Disclosure & Confidentiality Agreement between Patheon Inc. and New River\nPharmaceuticals Inc. dated as of May 31, 2003 (the “Patheon NCA”)\nDear Ms. Kuhl and Mr. McCune:\nWe understand that Shire plans to conduct a January 11, 2005 audit of operations at Patheon as they relate to New River’s product known as\nNRP104.\nBoth Shire and Patheon have signed New River’s two-way Non-Disclosure & Confidentiality Agreement that governs all Confidential\nInformation related to NRP104. In both the Shire NCA and the Patheon NCA Section 4 requires New River’s prior written permission to\nauthorize the disclosure of any New River Confidential Information to a third party.\nBy its signature below, New River hereby authorizes Shire and Patheon to accomplish the audit for NRP104 and share with each other such New\nRiver Confidential Information required therefore, provided, however, that the Confidential Information regarding NRP104 shall remain New\nRiver ’s Confidential Information and be protected and governed by the respective NCAs.\nBy their signatures below, both Shire and Patheon hereby agree to the foregoing provisions and agree that any disclosures of Patheon’s\nConfidential Information\n1881 Grove Avenue\nRadford, Virginia 24141\nDecember 16, 2004\nPage 2\nto Shire, or Shire’ Confidential Information to Patheon, shall be protected and governed by the NCAs.\nExcept as expressly set forth in this letter agreement, the NCAs shall remain unchanged and in full force and effect in accordance with their\nstated terms and conditions.\nPlease confirm your agreement by signing, dating and returning a copy of this letter to the undersigned. Thank you.\nSincerely,\n-s - Krish S. Krishnan\nKrish S. Krishnan\nCOO & CFO\nNew River Pharmaceuticals Inc.\nSEEN & AGREED TO:\nSHIRE US INC.\nBy:\n- s- XXXXX\nTitle: Senior Vice President, Associate General\nCounsel\nDate: 12/23/04\nSEEN & AGREED TO:\nPATHEON INC.\nBy:\n- s- Riccardo Trecroce\nRiccardo Trecroce,\nTitle: General Counsel & Senior Vice President\nCorporate Administration\nDate: January 3, 2005
+2ce3bbe2d6836d8b023c55883294fa63.pdf	effective_date jurisdiction party term	EX-10.29 25 d238359dex1029.htm EX-10.29\nExhibit 10.29\nLOGO\n«First_Name» «Last_Name»\n«Street»\n«City», «State» «Zip»\nRe: Confidentiality Agreement\nDear «First_Name»:\nAs a key employee of the Schneider organization, and as a member of the Enterprise Leadership Circle, you have and will have access to\ncertain “Confidential Information” and “Trade Secrets,” which are defined below. Such Confidential Information and Trade Secrets have been\ndeveloped and maintained through the investment of considerable time, effort and expense by Schneider and represent significant corporate\nassets of Schneider. Such Confidential Information must be subject to reasonable safeguards and protections such as protections against its\nunauthorized or improper use or disclosure. This letter represents an important aspect of protection of Confidential Information as set forth in this\nConfidentiality Agreement (“Agreement”).\nIt is the intent of the parties that this letter, in its entirety (including its introductory and closing paragraphs), upon being signed by you,\nconstitute a legally binding contract. Simply to assist the reader, certain of the paragraphs are numbered and titled. For ease of reference,\n“Schneider” or the pronouns “we” or “us” as used throughout this Agreement refer to Schneider National, Inc. and its subsidiaries and affiliates,\nwhile you, as addressee of this letter, are referred to with the pronouns “you” or “your”, as appropriate.\nIn consideration of your continued employment by Schneider, the compensation and benefits incident to your employment with Schneider,\nand, if applicable, Schneider ’s granting to you participation or continued participation in the Schneider National, Inc. 2017 Omnibus Incentive\nPlan, which is hereinafter referred to as the “Incentive Plan,”, you agree as follows:\n1. Confidential Information, Trade Secrets, and Privacy Restricted Information.\na. During Employment. While employed by Schneider, you will (i) hold in trust and confidence all Confidential Information, Trade\nSecrets, and Privacy Restricted Information (collectively, “Protected Information”) that come into your possession; (ii) not disclose,\ndirectly or indirectly, or replicate any Protected Information to any person outside of Schneider, except to third parties in the ordinary\ncourse of your duties who have a legal obligation to maintain the confidentiality of such information (such as Schneider’s auditors\nand attorneys) or as otherwise directed to do so in writing by an Officer of Schneider or its General Counsel; (iii) not disclose,\ndirectly or indirectly, any Protected Information to any Schneider associate, except upon a “need to know” basis to an associate who\nhas also agreed to this or a similar confidentiality agreement; and (iv)\n«First_Name» «Last_Name»\nPage 2\naccess and use Protected Information only in furtherance of your job responsibilities and for Schneider’s benefit and not for your own\npersonal use or advantage. During your employment, you agree to use utmost care to ensure that all Protected Information is\nmaintained in a confidential manner by using appropriate security at all times, including using screen protection on monitors,\nnon-sharing of user names and passwords, securing of hard copies of all Protected Information, and all other measures necessary to\nmaintain the confidentiality of all Protected Information. You agree that it is your responsibility to maintain your workspace in such a\nway as to minimize the risk of observation of Protected Information through you by unauthorized persons. During your employment\nwith Schneider, you agree to refrain from unauthorized duplication, documentation, or reproduction of Protected Information through\nany means. When your employment with Schneider ends, regardless of the reason, you will promptly return all Protected Information\nin your possession or under your control to Schneider, including any copies, documentation, or reproductions thereof and agree to\ncertify the same to Schneider if requested.\nb. Trade Secrets Post-Employment. After your employment with Schneider, you agree to not directly or indirectly use or disclose any\nof Schneider’s Trade Secrets. Nothing in this agreement shall limit or supersede any common law, statutory or other protections of\ntrade secrets where such protections provide Schneider with greater rights or protections for a longer duration than provided in this\nagreement.\nc. Confidential Information Post-Employment. For a period of eighteen (18) months after your employment with Schneider, you will\nnot directly or indirectly use or disclose any of Schneider’s Confidential Information.\nd. Privacy Restricted Information Post-Employment. After your employment with Schneider ends, for any reason, you agree to not\ndirectly or indirectly use or disclose any Privacy Restricted Information for so long as such information remains protected by law.\ne. Developments. While employed by Schneider, you will promptly disclose all Developments to your Schneider Human Resource\nBusiness Partner (HRBP) and, to the extent not owned by Schneider, you hereby assign all right, title and interest in and to all such\nDevelopments to Schneider. At any time during or after your employment with Schneider, you will promptly execute all documents\nand do all acts and things that Schneider may reasonably require to perfect, defend and enforce its patent, copyright, trademark, trade\nsecret and other intellectual or proprietary rights to such Developments throughout the world, and you hereby irrevocably designate\nand appoint Schneider and its duly authorized officers and agents as your agent and attorney-in-fact to act for and on your behalf to\ndo any of the foregoing with the same legal force and effect as if executed by you.\nf. Exceptions. Notwithstanding anything to the contrary, this Agreement is not intended to, and shall be interpreted in a manner that\ndoes not, limit or restrict you from exercising any legally protected whistleblower rights (including pursuant to Rule 21F under the\nSecurities Exchange Act of 1934 or Section 806 of the Sarbanes-Oxley Act of 2002), or\n«First_Name» «Last_Name»\nPage 3\nfrom exercising your rights to communicate with a government agency as provided for, protected under or warranted by applicable\nlaw. Schneider does not require prior notification or prior approval of any such whistleblowing report. Furthermore, for the avoidance\nof doubt, pursuant to the federal Defend Trade Secrets Act of 2016, you shall not be held criminally or civilly liable under any federal\nor state trade secret law for the disclosure of a trade secret that (i) is made (A) in confidence to a federal, state, or local government\nofficial, either directly or indirectly, or to an attorney; and (B) solely for the purpose of reporting or investigating a suspected\nviolation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under\nseal.\n2. Confidential Information of Others. You certify that you have not disclosed or used, and will not disclose or use, during your\nemployment with Schneider, any confidential information that you acquired as a result of any previous employment or under a contractual\nobligation of confidentiality or secrecy before you became an Associate of Schneider.\n3. No Guarantee of Employment. You acknowledge that, as a Schneider Associate, you are an “at will” employee, meaning either you or\nSchneider can terminate your employment at any time with or without cause. No communications, oral or written, by Schneider or any of\nits agents can change the fact that this agreement is not an employment contract and does not change your at-will status. This agreement\napplies during and after your employment, and this agreement is enforceable regardless of whether your separation is voluntary.\n4. Equitable Remedies and Forfeiture. You acknowledge that if you breach this agreement, Schneider’s damages will or may be difficult to\nascertain, money damages may not be adequate, and Schneider may incur irreparable harm and continuing damage. Accordingly, Schneider\nwill be entitled to any and all equitable remedies for breach of this agreement, including, without limitation, injunctive relief, as well as any\nmoney damages or other legal relief to which Schneider may be entitled. Without limiting any clawback and/or forfeiture remedies\navailable to Schneider under your award agreements or the Incentive Plan, if you breach any provisions of this Agreement or of your\nEmployee Non-Compete and No-Solicitation Agreement, with Schneider, all deferrals of Incentive Plan amounts with respect to you, as\nwell as appreciation, earnings and gains related thereto, credited under the plan to you shall be forfeited and your rights, payments and\nbenefits with respect to all deferrals/awards shall be subject to reduction, cancellation, forfeiture or recoupment. You agree that, to the\nextent this Agreement is inconsistent with any other Non Disclosure and Development Agreement you have signed, this Agreement\nsupersedes any such other agreement and is controlling.\n5. Miscellaneous.\na. Applicable Law; Jurisdiction. This agreement shall be governed by and enforced under the laws of the state of Wisconsin,\n(excluding conflicts of law provisions). Any disputes, claims, and questions regarding interpretation, performance, and enforceability\nconcerning this agreement, and the rights and remedies of the parties, any action or judicial proceeding and all related actions or\ncounterclaims shall be initiated and\n«First_Name» «Last_Name»\nPage 4\nprosecuted exclusively in Brown County, Wisconsin, in either the Brown County Circuit Court, or the Green Bay branch of the\nfederal district court for the Eastern District of Wisconsin. YOU AND SCHNEIDER EACH IRREVOCABLY WAIVE ANY AND\nALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS\nAGREEMENT. In addition, the prevailing party in any such proceeding shall be entitled to recover its expenses, including reasonable\nattorneys’ fees, from the non-prevailing party.\nb. Third Party Beneficiaries. Subsidiaries and affiliates of Schneider National, Inc. are third-party beneficiaries with respect to this\nagreement and may enforce this agreement directly against you. You agree that this Agreement shall be effective and inure to the\nbenefit of any subsidiaries, affiliates, divisions, successors, and/or assigns of Schneider.\nc. Waiver. Any waiver by Schneider of any claim against you under this agreement must be in writing and shall not be a waiver of any\nsubsequent breach of this agreement.\nd. Severability. Each section of this agreement shall be treated as a separate and independent clause, and the unenforceability of any\none clause shall in no way impair the enforceability of any of the other clauses in this agreement. In addition, if one or more of the\nprovisions in this agreement are for any reason held to be excessively broad as to scope, activity, subject or otherwise so as to be\nunenforceable at law, such provision(s) shall be interpreted by the appropriate judicial body by limiting or reducing it or them, so as\nto be enforceable to the maximum extent compatible with applicable law.\n6.\nDefinitions. To ensure a clear understanding of this Agreement we have included the following definitions:\na. Confidential Information. “Confidential Information” means information (i) relating to Schneider ’s business that is not a Trade\nSecret and that (a) is not generally known to or obtainable by proper means by Schneider’s competitors, and/or which has limited\ndisclosure within Schneider for reasons of security and confidentiality, and/or which has been designated as confidential by\nSchneider; and (b) the disclosure of which could reasonably be considered harmful to Schneider’s legitimate business interests; and\n(ii) from third parties that Schneider is contractually obligated to maintain the confidentiality of. Confidential Information may\ninclude, without limitation, technical, experimental, engineering, scientific, research or logistical data. Confidential Information may\nalso include customer preferences, customer information, information concerning Schneider’s business plans and strategies, sales,\npricing, and any assimilation of publicly available information which is reassembled in internal studies for competitive purposes.\nb. Trade Secrets. The term “Trade Secrets” has the meaning set forth under applicable law.\nc. Exclusions. The terms “Confidential Information” and “Trade Secrets” do not include information which: (i) at the time of disclosure\nto you is in the public domain; (ii) after disclosure to you becomes part of the public domain through no fault of you; (iii) is\n«First_Name» «Last_Name»\nPage 5\ndisclosed to you by a third party that does not have obligations of confidentiality and does have the right to disclose the information;\nor (iv) is independently developed by you outside the scope of your employment without use of Confidential Information or Trade\nSecrets.\nd. Developments. The term “Developments” means all ideas, designs, modifications, formulations, specifications, concepts, know-how,\ntrade secrets, discoveries, business ideas, inventions, data, software, developments, and copyrightable works, whether or not\npatentable or registrable, which you originate or develop either alone or jointly with others while you are employed by Schneider and\nwhich are (i) related to any business known to you to be engaged in or contemplated by Schneider; (ii) originated or developed during\nyour working hours; or (iii) originated or developed, in whole or in part, using materials, labor, facilities, or equipment furnished by\nSchneider. Developments do not include any invention by you for which no equipment, supplies, facility, or Trade Secret information\nof Schneider was used and which was developed entirely on your own time unless (a) the invention relates (1) to the business of\nSchneider, or (2) to Schneider’s actual or demonstrably anticipated research or development, or (b) the invention results from any\nwork performed by you for Schneider.\ne. Privacy Restricted Information. The term “Privacy Restricted Information” means any information that (i) may be used to identify\nany person; (ii) identifies characteristics (such as qualities, likes, dislikes, propensities, or tendencies) of any person; or (iii) is\notherwise regulated by any privacy laws. Privacy Restricted Information includes personnel data, salary information, medical data,\nattorney-client privileged materials, social security numbers, payment and processing information, and other similarly sensitive\ninformation.\nf. Schneider. The term “Schneider” shall include Schneider National, Inc. and any and all of its subsidiaries, subdivisions, affiliates or\nsuccessors, whether by merger, acquisition, recapitalization, reorganization or reincorporation.\nBy signing below, you acknowledge that you (i) have had the opportunity to discuss any questions you may have regarding this agreement with a\nrepresentative of Schneider, (ii) have had the opportunity to review this agreement, (iii) fully understand your obligations under this agreement,\nand (iv) have chosen to sign this agreement of your own free will after having considered its benefits and obligations.\n«First_Name» «Last_Name»\nPage 6\nDO NOT SIGN IF YOU DO NOT UNDERSTAND EVERYTHING IN THIS AGREEMENT. YOUR SIGNATURE INDICATES THAT YOU\nUNDERSTAND AND ACCEPT THIS AGREEMENT.\nAccepted and Agreed To:\n(Print Name)\n(Signature)\n(Date)	EX-10.29 25 d238359dex1029.htm EX-10.29\nExhibit 10.29\n».LOGO\n«First._ Name» «Last_Name»\n«Street»\n«City», «State» «Zip»\nRe: Confidentiality Agreement\nDear «First_Name»:\nAs a key employee of the Schneider organization, and as a member of the Enterprise Leadership Circle, you have and will have access to\ncertain “Confidential Information” and “Trade Secrets,” which are defined below. Such Confidential Information and Trade Secrets have been\ndeveloped and maintained through the investment of considerable time, effort and expense by Schneider and represent significant corporate\nassets of Schneider. Such Confidential Information must be subject to reasonable safeguards and protections such as protections against its\nunauthorized or improper use or disclosure. This letter represents an important aspect of protection of Confidential Information as set forth in this\nConfidentiality Agreement (“Agreement”).\nIt is the intent of the parties that this letter, in its entirety (including its introductory and closing paragraphs), upon being signed by you,\nconstitute a legally binding contract. Simply to assist the reader, certain of the paragraphs are numbered and titled. For ease of reference,\n“Schneider” or the pronouns “we” or “us” as used throughout this Agreement refer to Schneider National, Inc. and its subsidiaries and affiliates,\nwhile you, as addressee of this letter, are referred to with the pronouns “you” or “your”, as appropriate.\nIn consideration of your continued employment by Schneider, the compensation and benefits incident to your employment with Schneider,\nand, if applicable, Schneider’s granting to you participation or continued participation in the Schneider National, Inc. 2017 Omnibus Incentive\nPlan, which is hereinafter referred to as the “Incentive Plan,”, you agree as follows:\n1.  Confidential Information, Trade Secrets, and Privacy Restricted Information.\na. During Employment. While employed by Schneider, you will (i) hold in trust and confidence all Confidential Information, Trade\nSecrets, and Privacy Restricted Information (collectively, “Protected Information”) that come into your possession; (ii) not disclose,\ndirectly or indirectly, or replicate any Protected Information to any person outside of Schneider, except to third parties in the ordinary\ncourse of your duties who have a legal obligation to maintain the confidentiality of such information (such as Schneider’s auditors\nand attorneys) or as otherwise directed to do so in writing by an Officer of Schneider or its General Counsel; (iii) not disclose,\ndirectly or indirectly, any Protected Information to any Schneider associate, except upon a “need to know” basis to an associate who\nhas also agreed to this or a similar confidentiality agreement; and (iv)\n«First._ Name» «Last_Name» Page 2\naccess and use Protected Information only in furtherance of your job responsibilities and for Schneider’s benefit and not for your own\npersonal use or advantage. During your employment, you agree to use utmost care to ensure that all Protected Information is\nmaintained in a confidential manner by using appropriate security at all times, including using screen protection on monitors,\nnon-sharing of user names and passwords, securing of hard copies of all Protected Information, and all other measures necessary to\nmaintain the confidentiality of all Protected Information. You agree that it is your responsibility to maintain your workspace in such a\nway as to minimize the risk of observation of Protected Information through you by unauthorized persons. During your employment\nwith Schneider, you agree to refrain from unauthorized duplication, documentation, or reproduction of Protected Information through\nany means. When your employment with Schneider ends, regardless of the reason, you will promptly return all Protected Information\nin your possession or under your control to Schneider, including any copies, documentation, or reproductions thereof and agree to\ncertify the same to Schneider if requested.\n. Trade Secrets Post-Employment. After your employment with Schneider, you agree to not directly or indirectly use or disclose any of Schneider’s Trade Secrets. Nothing in this agreement shall limit or supersede any common law, statutory or other protections of\ntrade secrets where such protections provide Schneider with greater rights or protections for a longer duration than provided in this\nagreement.\n. Confidential Information Post-Employment. For a period of eighteen (18) months after your employment with Schneider, you will not directly or indirectly use or disclose any of Schneider’s Confidential Information.\n. Privacy Restricted Information Post-Employment. After your employment with Schneider ends, for any reason, you agree to not directly or indirectly use or disclose any Privacy Restricted Information for so long as such information remains protected by law.\n. Developments. While employed by Schneider, you will promptly disclose all Developments to your Schneider Human Resource Business Partner (HRBP) and, to the extent not owned by Schneider, you hereby assign all right, title and interest in and to all such\nDevelopments to Schneider. At any time during or after your employment with Schneider, you will promptly execute all documents\nand do all acts and things that Schneider may reasonably require to perfect, defend and enforce its patent, copyright, trademark, trade\nsecret and other intellectual or proprietary rights to such Developments throughout the world, and you hereby irrevocably designate\nand appoint Schneider and its duly authorized officers and agents as your agent and attorney-in-fact to act for and on your behalf to\ndo any of the foregoing with the same legal force and effect as if executed by you.\n. Exceptions. Notwithstanding anything to the contrary, this Agreement is not intended to, and shall be interpreted in a manner that does not, limit or restrict you from exercising any legally protected whistleblower rights (including pursuant to Rule 21F under the\nSecurities Exchange Act of 1934 or Section 806 of the Sarbanes-Oxley Act of 2002), or\n«First._ Name» «Last_Name»\nPage 3\nfrom exercising your rights to communicate with a government agency as provided for, protected under or warranted by applicable\nlaw. Schneider does not require prior notification or prior approval of any such whistleblowing report. Furthermore, for the avoidance\nof doubt, pursuant to the federal Defend Trade Secrets Act of 2016, you shall not be held criminally or civilly liable under any federal\nor state trade secret law for the disclosure of a trade secret that (i) is made (A) in confidence to a federal, state, or local government\nofficial, either directly or indirectly, or to an attorney; and (B) solely for the purpose of reporting or investigating a suspected\nviolation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under\nseal.\n2. Confidential Information of Others. You certify that you have not disclosed or used, and will not disclose or use, during your\nemployment with Schneider, any confidential information that you acquired as a result of any previous employment or under a contractual\nobligation of confidentiality or secrecy before you became an Associate of Schneider.\n3.  No Guarantee of Employment. You acknowledge that, as a Schneider Associate, you are an “at will” employee, meaning either you or\nSchneider can terminate your employment at any time with or without cause. No communications, oral or written, by Schneider or any of\nits agents can change the fact that this agreement is not an employment contract and does not change your at-will status. This agreement\napplies during and after your employment, and this agreement is enforceable regardless of whether your separation is voluntary.\n4.  Equitable Remedies and Forfeiture. You acknowledge that if you breach this agreement, Schneider’s damages will or may be difficult to\nascertain, money damages may not be adequate, and Schneider may incur irreparable harm and continuing damage. Accordingly, Schneider\nwill be entitled to any and all equitable remedies for breach of this agreement, including, without limitation, injunctive relief, as well as any\nmoney damages or other legal relief to which Schneider may be entitled. Without limiting any clawback and/or forfeiture remedies\navailable to Schneider under your award agreements or the Incentive Plan, if you breach any provisions of this Agreement or of your\nEmployee Non-Compete and No-Solicitation Agreement, with Schneider, all deferrals of Incentive Plan amounts with respect to you, as\nwell as appreciation, earnings and gains related thereto, credited under the plan to you shall be forfeited and your rights, payments and\nbenefits with respect to all deferrals/awards shall be subject to reduction, cancellation, forfeiture or recoupment. You agree that, to the\nextent this Agreement is inconsistent with any other Non Disclosure and Development Agreement you have signed, this Agreement\nsupersedes any such other agreement and is controlling.\n5. Miscellaneous.\na. Applicable Law; Jurisdiction. This agreement shall be governed by and enforced under the laws of the state of Wisconsin,\n(excluding conflicts of law provisions). Any disputes, claims, and questions regarding interpretation, performance, and enforceability\nconcerning this agreement, and the rights and remedies of the parties, any action or judicial proceeding and all related actions or\ncounterclaims shall be initiated and\n«First._ Name» «Last_Name» Page 4\n6.\nprosecuted exclusively in Brown County, Wisconsin, in either the Brown County Circuit Court, or the Green Bay branch of the\nfederal district court for the Eastern District of Wisconsin. YOU AND SCHNEIDER EACH IRREVOCABLY WAIVE ANY AND\nALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS\nAGREEMENT. In addition, the prevailing party in any such proceeding shall be entitled to recover its expenses, including reasonable\nattorneys’ fees, from the non-prevailing party.\n. Third Party Beneficiaries. Subsidiaries and affiliates of Schneider National, Inc. are third-party beneficiaries with respect to this agreement and may enforce this agreement directly against you. You agree that this Agreement shall be effective and inure to the\nbenefit of any subsidiaries, affiliates, divisions, successors, and/or assigns of Schneider.\n. Waiver. Any waiver by Schneider of any claim against you under this agreement must be in writing and shall not be a waiver of any subsequent breach of this agreement.\n. Severability. Each section of this agreement shall be treated as a separate and independent clause, and the unenforceability of any one clause shall in no way impair the enforceability of any of the other clauses in this agreement. In addition, if one or more of the\nprovisions in this agreement are for any reason held to be excessively broad as to scope, activity, subject or otherwise so as to be\nunenforceable at law, such provision(s) shall be interpreted by the appropriate judicial body by limiting or reducing it or them, so as\nto be enforceable to the maximum extent compatible with applicable law.\nDefinitions. To ensure a clear understanding of this Agreement we have included the following definitions: a. Confidential Information. “Confidential Information” means information (i) relating to Schneider’s business that is not a Trade Secret and that (a) is not generally known to or obtainable by proper means by Schneider’s competitors, and/or which has limited\ndisclosure within Schneider for reasons of security and confidentiality, and/or which has been designated as confidential by\nSchneider; and (b) the disclosure of which could reasonably be considered harmful to Schneider’s legitimate business interests; and\n(ii) from third parties that Schneider is contractually obligated to maintain the confidentiality of. Confidential Information may\ninclude, without limitation, technical, experimental, engineering, scientific, research or logistical data. Confidential Information may\nalso include customer preferences, customer information, information concerning Schneider’s business plans and strategies, sales,\npricing, and any assimilation of publicly available information which is reassembled in internal studies for competitive purposes.\n. Trade Secrets. The term “Trade Secrets” has the meaning set forth under applicable law. . Exclusions. The terms “Confidential Information” and “Trade Secrets” do not include information which: (i) at the time of disclosure to you is in the public domain; (ii) after disclosure to you becomes part of the public domain through no fault of you; (iii) is\n«First._ Name» «Last_Name» Page 5\ndisclosed to you by a third party that does not have obligations of confidentiality and does have the right to disclose the information;\nor (iv) is independently developed by you outside the scope of your employment without use of Confidential Information or Trade\nSecrets.\n. Developments. The term “Developments” means all ideas, designs, modifications, formulations, specifications, concepts, know-how, trade secrets, discoveries, business ideas, inventions, data, software, developments, and copyrightable works, whether or not\npatentable or registrable, which you originate or develop either alone or jointly with others while you are employed by Schneider and\nwhich are (i) related to any business known to you to be engaged in or contemplated by Schneider; (ii) originated or developed during\nyour working hours; or (iii) originated or developed, in whole or in part, using materials, labor, facilities, or equipment furnished by\nSchneider. Developments do not include any invention by you for which no equipment, supplies, facility, or Trade Secret information\nof Schneider was used and which was developed entirely on your own time unless (a) the invention relates (1) to the business of\nSchneider, or (2) to Schneider’s actual or demonstrably anticipated research or development, or (b) the invention results from any\nwork performed by you for Schneider.\n. Privacy Restricted Information. The term “Privacy Restricted Information” means any information that (i) may be used to identify  \nany person; (ii) identifies characteristics (such as qualities, likes, dislikes, propensities, or tendencies) of any person; or (iii) is\notherwise regulated by any privacy laws. Privacy Restricted Information includes personnel data, salary information, medical data,\nattorney-client privileged materials, social security numbers, payment and processing information, and other similarly sensitive\ninformation.\n. Schneider. The term “Schneider” shall include Schneider National, Inc. and any and all of its subsidiaries, subdivisions, affiliates or successors, whether by merger, acquisition, recapitalization, reorganization or reincorporation.\nBy signing below, you acknowledge that you (i) have had the opportunity to discuss any questions you may have regarding this agreement with a representative of Schneider, (ii) have had the opportunity to review this agreement, (iii) fully understand your obligations under this agreement, and (iv) have chosen to sign this agreement of your own free will after having considered its benefits and obligations.\f«First._Name» «Last_Name»\nPage 6\nDO NOT SIGN IF YOU DO NOT UNDERSTAND EVERYTHING IN THIS AGREEMENT. YOUR SIGNATURE INDICATES THAT YOU\nUNDERSTAND AND ACCEPT THIS AGREEMENT.\nAccepted and Agreed To:\n(Print Name)\n(Signature)\n(Date)	EX-10.29 25 d238359dex1029.htm EX-10.29\nExhibit 10.29\nLOGO\n<First_Name> <<Last_Name>\n<<Street>\n<<City>, <<State> <Zip>\nRe: Confidentiality Agreement\nDear <First_Name>:\nAs a key employee of the Schneider organization, and as a member of the Enterprise Leadership Circle, you have and will have access to\ncertain "Confidential Information" and "Trade Secrets," which are defined below. Such Confidential Information and Trade Secrets have been\ndeveloped and maintained through the investment of considerable time, effort and expense by Schneider and represent significant corporate\nassets of Schneider. Such Confidential Information must be subject to reasonable safeguards and protections such as protections against its\nunauthorized or improper use or disclosure. This letter represents an important aspect of protection of Confidential Information as set forth in\nthis\nConfidentiality Agreement ("Agreement").\nIt is the intent of the parties that this letter, in its entirety (including its introductory and closing paragraphs), upon being signed by you,\nconstitute a legally binding contract. Simply to assist the reader, certain of the paragraphs are numbered and titled. For ease of reference,\n"Schneider" or the pronouns "we" or "us" as used throughout this Agreement refer to Schneider National, Inc. and its subsidiaries and affiliates,\nwhile you, as addressee of this letter, are referred to with the pronouns "you" or "your", as appropriate.\nIn consideration of your continued employment by Schneider, the compensation and benefits incident to your employment with Schneider,\nand, if applicable, Schneider's granting to you participation or continued participation in the Schneider National, Inc. 2017 Omnibus Incentive\nPlan, which is hereinafter referred to as the "Incentive Plan,", you agree as follows:\n1.\nConfidential Information, Trade Secrets, and Privacy Restricted Information.\na.\nDuring Employment. While employed by Schneider, you will (i) hold in trust and confidence all Confidential Information, Trade\nSecrets, and Privacy Restricted Information (collectively, "Protected Information") that come into your possession; (ii) not disclose,\ndirectly or indirectly, or replicate any Protected Information to any person outside of Schneider, except to third parties in the ordinary\ncourse of your duties who have a legal obligation to maintain the confidentiality of such information (such as Schneider's auditors\nand attorneys) or as otherwise directed to do so in writing by an Officer of Schneider or its General Counsel; (iii) not disclose,\ndirectly or indirectly, any Protected Information to any Schneider associate, except upon a "need to know" basis to an associate who\nhas also agreed to this or a similar confidentiality agreement; and (iv)\n<<First_Name> <LastName>\nPage 2\naccess and use Protected Information only in furtherance of your job responsibilities and for Schneider's benefit and not for your own\npersonal use or advantage. During your employment, you agree to use utmost care to ensure that all Protected Information is\nmaintained in a confidential manner by using appropriate security at all times, including using screen protection on monitors,\nnon-sharing of user names and passwords, securing of hard copies of all Protected Information, and all other measures necessary to\nmaintain the confidentiality of all Protected Information. You agree that it is your responsibility to maintain your workspace in such a\nway as to minimize the risk of observation of Protected Information through you by unauthorized persons. During your employment\nwith Schneider, you agree to refrain from unauthorized duplication, documentation, or reproduction of Protected Information through\nany means. When your employment with Schneider ends, regardless of the reason, you will promptly return all Protected Information\nin your possession or under your control to Schneider, including any copies, documentation, or reproductions thereof and agree to\ncertify the same to Schneider if requested.\nb. Trade Secrets Post-Employment. After your employment with Schneider, you agree to not directly or indirectly use or disclose any\nof Schneider's Trade Secrets. Nothing in this agreement shall limit or supersede any common law, statutory or other protections of\ntrade secrets where such protections provide Schneider with greater rights or protections for a longer duration than provided in this\nagreement.\nC. Confidential Information Post-Employment. For a period of eighteen (18) months after your employment with Schneider, you will\nnot directly or indirectly use or disclose any of Schneider's Confidential Information.\nd. Privacy Restricted Information Post-Employment. After your employment with Schneider ends, for any reason, you agree to not\ndirectly or indirectly use or disclose any Privacy Restricted Information for so long as such information remains protected by law.\ne. Developments. While employed by Schneider, you will promptly disclose all Developments to your Schneider Human Resource\nBusiness Partner (HRBP) and, to the extent not owned by Schneider, you hereby assign all right, title and interest in and to all such\nDevelopments to Schneider. At any time during or after your employment with Schneider, you will promptly execute all documents\nand do all acts and things that Schneider may reasonably require to perfect, defend and enforce its patent, copyright, trademark, trade\nsecret and other intellectual or proprietary rights to such Developments throughout the world, and you hereby irrevocably designate\nand appoint Schneider and its duly authorized officers and agents as your agent and attorney-in-fact to act for and on your behalf\nto\ndo any of the foregoing with the same legal force and effect as if executed by you.\nf. Exceptions. Notwithstanding anything to the contrary, this Agreement is not intended to, and shall be interpreted in a manner that\ndoes not, limit or restrict you from exercising any legally protected whistleblower rights (including pursuant to Rule 21F under the\nSecurities Exchange Act of 1934 or Section 806 of the Sarbanes-Oxley Act of 2002), or\n<<First_Name> <<Last_Name>\nPage 3\nfrom exercising your rights to communicate with a government agency as provided for, protected under or warranted by applicable\nlaw. Schneider does not require prior notification or prior approval of any such whistleblowing report. Furthermore, for the avoidance\nof doubt, pursuant to the federal Defend Trade Secrets Act of 2016, you shall not be held criminally or civilly liable under any federal\nor state trade secret law for the disclosure of a trade secret that (i) is made (A) in confidence to a federal, state, or local government\nofficial, either directly or indirectly, or to an attorney; and (B) solely for the purpose of reporting or investigating a suspected\nviolation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under\nseal.\n2.\nConfidential Information of Others. You certify that you have not disclosed or used, and will not disclose or use, during your\nemployment with Schneider, any confidential information that you acquired as a result of any previous employment or under a contractual\nobligation of confidentiality or secrecy before you became an Associate of Schneider.\n3.\nNo Guarantee of Employment. You acknowledge that, as a Schneider Associate, you are an "at will" employee, meaning either you or\nSchneider can terminate your employment at any time with or without cause. No communications, oral or written, by Schneider or any of\nits agents can change the fact that this agreement is not an employment contract and does not change your at-will status. This agreement\napplies during and after your employment, and this agreement is enforceable regardless of whether your separation is voluntary.\n4.\nEquitable Remedies and Forfeiture. You acknowledge that if you breach this agreement, Schneider's damages will or may be difficult to\nascertain, money damages may not be adequate, and Schneider may incur irreparable harm and continuing damage. Accordingly, Schneider\nwill be entitled to any and all equitable remedies for breach of this agreement, including, without limitation, injunctive relief, as well as any\nmoney damages or other legal relief to which Schneider may be entitled. Without limiting any clawback and/or forfeiture remedies\navailable to Schneider under your award agreements or the Incentive Plan, if you breach any provisions of this Agreement or of your\nEmployee Non-Compete and No-Solicitation Agreement, with Schneider, all deferrals of Incentive Plan amounts with respect to you, as\nwell as appreciation, earnings and gains related thereto, credited under the plan to you shall be forfeited and your rights, payments and\nbenefits with respect to all deferrals/awards shall be subject to reduction, cancellation, forfeiture or recoupment. You agree that, to the\nextent this Agreement is inconsistent with any other Non Disclosure and Development Agreement you have signed, this Agreement\nsupersedes any such other agreement and is controlling.\n5. Miscellaneous.\na. Applicable Law; Jurisdiction. This agreement shall be governed by and enforced under the laws of the state of Wisconsin,\n(excluding conflicts of law provisions). Any disputes, claims, and questions regarding interpretation, performance, and enforceability\nconcerning this agreement, and the rights and remedies of the parties, any action or judicial proceeding and all related actions or\ncounterclaims shall be initiated and\n<<First_Name> <Last_Name>\nPage 4\nprosecuted exclusively in Brown County, Wisconsin, in either the Brown County Circuit Court, or the Green Bay branch of the\nfederal district court for the Eastern District of Wisconsin. YOU AND SCHNEIDER EACH IRREVOCABLY WAIVE ANY AND\nALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS\nAGREEMENT. In addition, the prevailing party in any such proceeding shall be entitled to recover its expenses, including reasonable\nattorneys' fees, from the non-prevailing party.\nb. Third Party Beneficiaries. Subsidiaries and affiliates of Schneider National, Inc. are third-party beneficiaries with respect to this\nagreement and may enforce this agreement directly against you. You agree that this Agreement shall be effective and inure to the\nbenefit of any subsidiaries, affiliates, divisions, successors, and/or assigns of Schneider.\nC.\nWaiver. Any waiver by Schneider of any claim against you under this agreement must be in writing and shall not be a waiver of any\nsubsequent breach of this agreement.\nd.\nSeverability. Each section of this agreement shall be treated as a separate and independent clause, and the unenforceability of any\none clause shall in no way impair the enforceability of any of the other clauses in this agreement. In addition, if one or more of the\nprovisions in this agreement are for any reason held to be excessively broad as to scope, activity, subject or otherwise so as to be\nunenforceable at law, such provision(s) shall be interpreted by the appropriate judicial body by limiting or reducing it or them, so as\nto be enforceable to the maximum extent compatible with applicable law.\n6.\nDefinitions To ensure a clear understanding of this Agreement we have included the following definitions:\na. Confidential Information. "Confidential Information" means information (i) relating to Schneider's business that is not a Trade\nSecret and that (a) is not generally known to or obtainable by proper means by Schneider's competitors, and/or which has limited\ndisclosure within Schneider for reasons of security and confidentiality, and/or which has been designated as confidential by\nSchneider; and (b) the disclosure of which could reasonably be considered harmful to Schneider's legitimate business interests; and\n(ii) from third parties that Schneider is contractually obligated to maintain the confidentiality of. Confidential Information may\ninclude, without limitation, technical, experimental, engineering, scientific, research or logistical data. Confidential Information may\nalso include customer preferences, customer information, information concerning Schneider's business plans and strategies, sales,\npricing, and any assimilation of publicly available information which is reassembled in internal studies for competitive purposes.\nb.\nTrade Secrets. The term "Trade Secrets" has the meaning set forth under applicable law.\nC.\nExclusions. The terms "Confidential Information" and "Trade Secrets" do not include information which: (i) at the time of disclosure\nto you is in the public domain; (ii) after disclosure to you becomes part of the public domain through no fault of you; (iii) is\n<<FirstName> <<Last_Name>\nPage 5\ndisclosed to you by a third party that does not have obligations of confidentiality and does have the right to disclose the information;\nor (iv) is independently developed by you outside the scope of your employment without use of Confidential Information or Trade\nSecrets.\nd.\nDevelopments. The term "Developments" means all ideas, designs, modifications, formulations, specifications, concepts, know-how,\ntrade secrets, discoveries, business ideas, inventions, data, software, developments, and copyrightable works, whether or not\npatentable or registrable, which you originate or develop either alone or jointly with others while you are employed by Schneider and\nwhich are (i) related to any business known to you to be engaged in or contemplated by Schneider; (ii) originated or developed during\nyour working hours; or (iii) originated or developed, in whole or in part, using materials, labor, facilities, or equipment furnished by\nSchneider. Developments do not include any invention by you for which no equipment, supplies, facility, or Trade Secret information\nof Schneider was used and which was developed entirely on your own time unless (a) the invention relates (1) to the business of\nSchneider, or (2) to Schneider's actual or demonstrably anticipated research or development, or (b) the invention results from any\nwork performed by you for Schneider.\ne. Privacy Restricted Information. The term "Privacy Restricted Information" means any information that (i) may be used to identify\nany person; (ii) identifies characteristics (such as qualities, likes, dislikes, propensities, or tendencies) of any person; or (iii) is\notherwise regulated by any privacy laws. Privacy Restricted Information includes personnel data, salary information, medical data,\nattorney-client privileged materials, social security numbers, payment and processing information, and other similarly sensitive\ninformation.\nf.\nSchneider. The term "Schneider" shall include Schneider National, Inc. and any and all of its subsidiaries, subdivisions, affiliates or\nsuccessors, whether by merger, acquisition, recapitalization, reorganization or reincorporation.\nBy signing below, you acknowledge that you (i) have had the opportunity to discuss any questions you may have regarding this agreement with a\nrepresentative of Schneider, (ii) have had the opportunity to review this agreement, (iii) fully understand your obligations under this agreement,\nand (iv) have chosen to sign this agreement of your own free will after having considered its benefits and obligations.\n<<First_Name> <<LastName>\nPage 6\nDO NOT SIGN IF YOU DO NOT UNDERSTAND EVERYTHING IN THIS AGREEMENT. YOUR SIGNATURE INDICATES THAT YOU\nUNDERSTAND AND ACCEPT THIS AGREEMENT.\nAccepted and Agreed To:\n(Print Name)\n(Signature)\n(Date)	EX-10.29 25 d238359dex1029.htm EX-10.29\nExhibit 10.29\nLOGO\n«First_Name» «Last_Name»\n«Street»\n«City», «State» «Zip»\nRe: Confidentiality Agreement\nDear «First_Name»:\nAs a key employee of the Schneider organization, and as a member of the Enterprise Leadership Circle, you have and will have access to\ncertain “Confidential Information” and “Trade Secrets,” which are defined below. Such Confidential Information and Trade Secrets have been\ndeveloped and maintained through the investment of considerable time, effort and expense by Schneider and represent significant corporate\nassets of Schneider. Such Confidential Information must be subject to reasonable safeguards and protections such as protections against its\nunauthorized or improper use or disclosure. This letter represents an important aspect of protection of Confidential Information as set forth in this\nConfidentiality Agreement (“Agreement”).\nIt is the intent of the parties that this letter, in its entirety (including its introductory and closing paragraphs), upon being signed by you,\nconstitute a legally binding contract. Simply to assist the reader, certain of the paragraphs are numbered and titled. For ease of reference,\n“Schneider” or the pronouns “we” or “us” as used throughout this Agreement refer to Schneider National, Inc. and its subsidiaries and affiliates,\nwhile you, as addressee of this letter, are referred to with the pronouns “you” or “your”, as appropriate.\nIn consideration of your continued employment by Schneider, the compensation and benefits incident to your employment with Schneider,\nand, if applicable, Schneider ’s granting to you participation or continued participation in the Schneider National, Inc. 2017 Omnibus Incentive\nPlan, which is hereinafter referred to as the “Incentive Plan,”, you agree as follows:\n1. Confidential Information, Trade Secrets, and Privacy Restricted Information.\na. During Employment. While employed by Schneider, you will (i) hold in trust and confidence all Confidential Information, Trade\nSecrets, and Privacy Restricted Information (collectively, “Protected Information”) that come into your possession; (ii) not disclose,\ndirectly or indirectly, or replicate any Protected Information to any person outside of Schneider, except to third parties in the ordinary\ncourse of your duties who have a legal obligation to maintain the confidentiality of such information (such as Schneider’s auditors\nand attorneys) or as otherwise directed to do so in writing by an Officer of Schneider or its General Counsel; (iii) not disclose,\ndirectly or indirectly, any Protected Information to any Schneider associate, except upon a “need to know” basis to an associate who\nhas also agreed to this or a similar confidentiality agreement; and (iv)\n«First_Name» «Last_Name»\nPage 2\naccess and use Protected Information only in furtherance of your job responsibilities and for Schneider’s benefit and not for your own\npersonal use or advantage. During your employment, you agree to use utmost care to ensure that all Protected Information is\nmaintained in a confidential manner by using appropriate security at all times, including using screen protection on monitors,\nnon-sharing of user names and passwords, securing of hard copies of all Protected Information, and all other measures necessary to\nmaintain the confidentiality of all Protected Information. You agree that it is your responsibility to maintain your workspace in such a\nway as to minimize the risk of observation of Protected Information through you by unauthorized persons. During your employment\nwith Schneider, you agree to refrain from unauthorized duplication, documentation, or reproduction of Protected Information through\nany means. When your employment with Schneider ends, regardless of the reason, you will promptly return all Protected Information\nin your possession or under your control to Schneider, including any copies, documentation, or reproductions thereof and agree to\ncertify the same to Schneider if requested.\nb. Trade Secrets Post-Employment. After your employment with Schneider, you agree to not directly or indirectly use or disclose any\nof Schneider’s Trade Secrets. Nothing in this agreement shall limit or supersede any common law, statutory or other protections of\ntrade secrets where such protections provide Schneider with greater rights or protections for a longer duration than provided in this\nagreement.\nc. Confidential Information Post-Employment. For a period of eighteen (18) months after your employment with Schneider, you will\nnot directly or indirectly use or disclose any of Schneider’s Confidential Information.\nd. Privacy Restricted Information Post-Employment. After your employment with Schneider ends, for any reason, you agree to not\ndirectly or indirectly use or disclose any Privacy Restricted Information for so long as such information remains protected by law.\ne. Developments. While employed by Schneider, you will promptly disclose all Developments to your Schneider Human Resource\nBusiness Partner (HRBP) and, to the extent not owned by Schneider, you hereby assign all right, title and interest in and to all such\nDevelopments to Schneider. At any time during or after your employment with Schneider, you will promptly execute all documents\nand do all acts and things that Schneider may reasonably require to perfect, defend and enforce its patent, copyright, trademark, trade\nsecret and other intellectual or proprietary rights to such Developments throughout the world, and you hereby irrevocably designate\nand appoint Schneider and its duly authorized officers and agents as your agent and attorney-in-fact to act for and on your behalf to\ndo any of the foregoing with the same legal force and effect as if executed by you.\nf. Exceptions. Notwithstanding anything to the contrary, this Agreement is not intended to, and shall be interpreted in a manner that\ndoes not, limit or restrict you from exercising any legally protected whistleblower rights (including pursuant to Rule 21F under the\nSecurities Exchange Act of 1934 or Section 806 of the Sarbanes-Oxley Act of 2002), or\n«First_Name» «Last_Name»\nPage 3\nfrom exercising your rights to communicate with a government agency as provided for, protected under or warranted by applicable\nlaw. Schneider does not require prior notification or prior approval of any such whistleblowing report. Furthermore, for the avoidance\nof doubt, pursuant to the federal Defend Trade Secrets Act of 2016, you shall not be held criminally or civilly liable under any federal\nor state trade secret law for the disclosure of a trade secret that (i) is made (A) in confidence to a federal, state, or local government\nofficial, either directly or indirectly, or to an attorney; and (B) solely for the purpose of reporting or investigating a suspected\nviolation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under\nseal.\n2. Confidential Information of Others. You certify that you have not disclosed or used, and will not disclose or use, during your\nemployment with Schneider, any confidential information that you acquired as a result of any previous employment or under a contractual\nobligation of confidentiality or secrecy before you became an Associate of Schneider.\n3. No Guarantee of Employment. You acknowledge that, as a Schneider Associate, you are an “at will” employee, meaning either you or\nSchneider can terminate your employment at any time with or without cause. No communications, oral or written, by Schneider or any of\nits agents can change the fact that this agreement is not an employment contract and does not change your at-will status. This agreement\napplies during and after your employment, and this agreement is enforceable regardless of whether your separation is voluntary.\n4. Equitable Remedies and Forfeiture. You acknowledge that if you breach this agreement, Schneider’s damages will or may be difficult to\nascertain, money damages may not be adequate, and Schneider may incur irreparable harm and continuing damage. Accordingly, Schneider\nwill be entitled to any and all equitable remedies for breach of this agreement, including, without limitation, injunctive relief, as well as any\nmoney damages or other legal relief to which Schneider may be entitled. Without limiting any clawback and/or forfeiture remedies\navailable to Schneider under your award agreements or the Incentive Plan, if you breach any provisions of this Agreement or of your\nEmployee Non-Compete and No-Solicitation Agreement, with Schneider, all deferrals of Incentive Plan amounts with respect to you, as\nwell as appreciation, earnings and gains related thereto, credited under the plan to you shall be forfeited and your rights, payments and\nbenefits with respect to all deferrals/awards shall be subject to reduction, cancellation, forfeiture or recoupment. You agree that, to the\nextent this Agreement is inconsistent with any other Non Disclosure and Development Agreement you have signed, this Agreement\nsupersedes any such other agreement and is controlling.\n5. Miscellaneous.\na. Applicable Law; Jurisdiction. This agreement shall be governed by and enforced under the laws of the state of Wisconsin,\n(excluding conflicts of law provisions). Any disputes, claims, and questions regarding interpretation, performance, and enforceability\nconcerning this agreement, and the rights and remedies of the parties, any action or judicial proceeding and all related actions or\ncounterclaims shall be initiated and\n«First_Name» «Last_Name»\nPage 4\nprosecuted exclusively in Brown County, Wisconsin, in either the Brown County Circuit Court, or the Green Bay branch of the\nfederal district court for the Eastern District of Wisconsin. YOU AND SCHNEIDER EACH IRREVOCABLY WAIVE ANY AND\nALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS\nAGREEMENT. In addition, the prevailing party in any such proceeding shall be entitled to recover its expenses, including reasonable\nattorneys’ fees, from the non-prevailing party.\nb. Third Party Beneficiaries. Subsidiaries and affiliates of Schneider National, Inc. are third-party beneficiaries with respect to this\nagreement and may enforce this agreement directly against you. You agree that this Agreement shall be effective and inure to the\nbenefit of any subsidiaries, affiliates, divisions, successors, and/or assigns of Schneider.\nc. Waiver. Any waiver by Schneider of any claim against you under this agreement must be in writing and shall not be a waiver of any\nsubsequent breach of this agreement.\nd. Severability. Each section of this agreement shall be treated as a separate and independent clause, and the unenforceability of any\none clause shall in no way impair the enforceability of any of the other clauses in this agreement. In addition, if one or more of the\nprovisions in this agreement are for any reason held to be excessively broad as to scope, activity, subject or otherwise so as to be\nunenforceable at law, such provision(s) shall be interpreted by the appropriate judicial body by limiting or reducing it or them, so as\nto be enforceable to the maximum extent compatible with applicable law.\n6.\nDefinitions. To ensure a clear understanding of this Agreement we have included the following definitions:\na. Confidential Information. “Confidential Information” means information (i) relating to Schneider ’s business that is not a Trade\nSecret and that (a) is not generally known to or obtainable by proper means by Schneider’s competitors, and/or which has limited\ndisclosure within Schneider for reasons of security and confidentiality, and/or which has been designated as confidential by\nSchneider; and (b) the disclosure of which could reasonably be considered harmful to Schneider’s legitimate business interests; and\n(ii) from third parties that Schneider is contractually obligated to maintain the confidentiality of. Confidential Information may\ninclude, without limitation, technical, experimental, engineering, scientific, research or logistical data. Confidential Information may\nalso include customer preferences, customer information, information concerning Schneider’s business plans and strategies, sales,\npricing, and any assimilation of publicly available information which is reassembled in internal studies for competitive purposes.\nb. Trade Secrets. The term “Trade Secrets” has the meaning set forth under applicable law.\nc. Exclusions. The terms “Confidential Information” and “Trade Secrets” do not include information which: (i) at the time of disclosure\nto you is in the public domain; (ii) after disclosure to you becomes part of the public domain through no fault of you; (iii) is\n«First_Name» «Last_Name»\nPage 5\ndisclosed to you by a third party that does not have obligations of confidentiality and does have the right to disclose the information;\nor (iv) is independently developed by you outside the scope of your employment without use of Confidential Information or Trade\nSecrets.\nd. Developments. The term “Developments” means all ideas, designs, modifications, formulations, specifications, concepts, know-how,\ntrade secrets, discoveries, business ideas, inventions, data, software, developments, and copyrightable works, whether or not\npatentable or registrable, which you originate or develop either alone or jointly with others while you are employed by Schneider and\nwhich are (i) related to any business known to you to be engaged in or contemplated by Schneider; (ii) originated or developed during\nyour working hours; or (iii) originated or developed, in whole or in part, using materials, labor, facilities, or equipment furnished by\nSchneider. Developments do not include any invention by you for which no equipment, supplies, facility, or Trade Secret information\nof Schneider was used and which was developed entirely on your own time unless (a) the invention relates (1) to the business of\nSchneider, or (2) to Schneider’s actual or demonstrably anticipated research or development, or (b) the invention results from any\nwork performed by you for Schneider.\ne. Privacy Restricted Information. The term “Privacy Restricted Information” means any information that (i) may be used to identify\nany person; (ii) identifies characteristics (such as qualities, likes, dislikes, propensities, or tendencies) of any person; or (iii) is\notherwise regulated by any privacy laws. Privacy Restricted Information includes personnel data, salary information, medical data,\nattorney-client privileged materials, social security numbers, payment and processing information, and other similarly sensitive\ninformation.\nf. Schneider. The term “Schneider” shall include Schneider National, Inc. and any and all of its subsidiaries, subdivisions, affiliates or\nsuccessors, whether by merger, acquisition, recapitalization, reorganization or reincorporation.\nBy signing below, you acknowledge that you (i) have had the opportunity to discuss any questions you may have regarding this agreement with a\nrepresentative of Schneider, (ii) have had the opportunity to review this agreement, (iii) fully understand your obligations under this agreement,\nand (iv) have chosen to sign this agreement of your own free will after having considered its benefits and obligations.\n«First_Name» «Last_Name»\nPage 6\nDO NOT SIGN IF YOU DO NOT UNDERSTAND EVERYTHING IN THIS AGREEMENT. YOUR SIGNATURE INDICATES THAT YOU\nUNDERSTAND AND ACCEPT THIS AGREEMENT.\nAccepted and Agreed To:\n(Print Name)\n(Signature)\n(Date)
+2f3749e14385bf1eba71c61fdbc6f29f.pdf	effective_date jurisdiction party	Exhibit 10.9\nEMPLOYEE CONFIDENTIALITY AGREEMENT\nThis Employee Confidentiality Agreement ("Agreement") is made as of May 17, 2010 (the "Effective Date") by and between Victoria Industries, Inc., a Nevada\ncorporation (to be named as Motor Sport Country Club Holdings, Inc.) ("Party-1") and Robert A. Newson, an individual ("Party-2"), and\nParty-2 is employed by Party-1 in the following role: (President and Chief Operating Officer) (the "Business Purpose"). In the course of that employment regarding\nthe Business Purpose, Party-1 may disclose to Party-2 certain Confidential Information (as that term is later defined). By virtue of this Agreement, each party\nwishes to protect the confidentiality of such Confidential Information.\nParty-1 and Party-2 therefore agree as follows:\n1. DEFINITIONS.\n(a) "Confidential Information" means private or confidential information, data or materials of Party-1, and all such private or confidential information, data or\nmaterials must be marked as "confidential" or "proprietary" to the disclosing party, however, for oral disclosures of information, data or materials, the disclosing\nparty may describe the disclosure within twenty (20) days thereafter in a written notice provided to Contractor, referencing the time, date, and receiving individuals\nfor the disclosure, at which point such described information, data or materials become Confidential Information of the disclosing party on a going forward basis\nfrom the date of receiving party's receipt of such letter.\n(b) "Government Authority" means any governmental authority or court, tribunal, agency, department, commission, arbitrator, board, bureau, or instrumentality of\nthe United States of America or any other country or territory, or domestic or foreign state, prefecture, province, commonwealth, city, county, municipality,\nterritory, protectorate or possession. (c) "Law" means all Laws, statutes, ordinances, codes, regulations and other pronouncements having the effect of Law of\nany Government Authority.\n2. EMPLOYMENT.\n(a) No Employment Agreement. Party-2 acknowledges and agrees that employment with Party-1 is on an at-will basis, and either Party-1 or Party-2 may\nterminate the employment relationship at any time, for convenience, for any reason or no reason, and with or without cause. This Agreement is not an\nemployment agreement and is concerned only with this Agreement's subject matter.\n(b) OPPORTUNITY TO CONSULT WITH COUNSEL AND NO CONSTRUCTION AGAINST THE DRAFTER. PARTY -2 ACKNOWLEDGES AND AGREES THAT\nPARTY-2 HAD A FULL AND AMPLE OPPORTUNITY TO CONSULT LEGAL COUNSEL REGARDING THIS AGREEMENT PRIOR TO SIGNING, HAS FREELY\nAND VOLUNTARILY ENTERED INTO THIS AGREEMENT, AND HAS READ AND UNDERSTOOD EACH AND EVERY PROVISION , INCLUDING, BUT NOT\nLIMITED TO, PARTY -2'S RIGHTS, OBLIGATIONS , AND APPLICABLE TERMS AND CONDITIONS . BOTH PARTIES ACKNOWLEDGE AND AGREE THAT\nANY INTERPRETATION OF THIS AGREEMENT MAY NOT BE CONSTRUED AGAINST PARTY-1 BECAUSE IT DRAFTED THIS AGREEMENT.\n1\n3. CONFIDENTIALITY .\n(a) Confidential Information Disclosures. In the performance of this Agreement Party-2 may receive the Confidential Information of Party-1 . Disclosures of\nConfidential Information made by Party-1 (or the "disclosing party") to Party-2 (or the "receiving party"), are pursuant to all terms and conditions of this\nAgreement. All Confidential Information of the disclosing party will remain the exclusive property of the disclosing party. The terms and conditions of this\nAgreement are deemed to be Confidential Information of both parties.\n(b) Exclusions. Confidential Information does not include information, data or materials that, as proved by written records: (i) Public Domain. Are or become a part\nof the public domain through no act or omission on the part of the receiving party and no violation of any obligation of nondisclosure by any third party; or (ii)\nIndependently Developed. Are independently developed by the receiving party without reference to the disclosing party's Confidential Information, as evidenced\nthrough written records created in the normal course of the receiving party's business; or (iii) Third Party Source. Are disclosed to the receiving party through a\nthird party source or series of sources without any violation of nondisclosure with respect to such information, data or materials by any source(s) in the series\n(however, such information only becomes Confidential Information once the receiving party is aware of such breach).\n(c) Duties. Without limiting any other obligations under this Agreement, the parties agree to the following specified duties: (i) Nondisclosure and Uses. The\nreceiving party must use commercially reasonable methods, at least as substantial as the methods it uses to protect its own confidential information, data and\nmaterials of a similar nature, to maintain the confidentiality of the Confidential Information by not copying, publishing, disclosing to third parties or using the\nConfidential Information; except the receiving party may use the Confidential Information in order to perform the receiving party's obligations or engage in\nactivities contemplated under the Business Purpose. A receiving party may not modify or delete any proprietary rights legend appearing in the disclosing party's\nConfidential Information. (ii) Disclosures to Agents and Subcontractors. A receiving party may share Confidential Information with: (a) its attorneys under an\nobligation of confidentiality and nondisclosure no less protective of the disclosing party's Confidential Information than the terms and conditions of this Agreement;\nand (b) its subcontractors pursuant to a written confidentiality agreement no less protective of the disclosing party's Confidential Information than this Agreement\n(a "Subcontractor Confidentiality Agreement"), provided that in no event may an attorney or subcontractor of a receiving party disclose Confidential Information to\nany other third party, with the exception of a Government Authority to which a disclosure may be made (for subcontractors, only pursuant to a provision in the\nSubcontractor Confidentiality Agreement identical to Section 2.4 (Disclosures Required by Law) of this Agreement), except that the attorney or subcontractor\nmust give the prior notice required therein to both the receiving party and the disclosing party. Receiving party agrees to assume all liability and responsibility for\nsuch attorneys'' and subcontractors' compliance with and breach of the terms and conditions of this Agreement as if such attorneys' and subcontractors' acts and\nomissions were receiving party's own. (iii) Notice. Upon discovery, receiving party agrees to provide disclosing party immediate telephonic and written notice of a\nbreach of: (a) any obligation of confidentiality and nondisclosure required hereunder prior to a disclosure; and (b) any Subcontractor Confidentiality Agreement.\n(iv) Return of Confidential Information. After a request by the disclosing party, and after termination or expiration of this Agreement, receiving party must within\nthirty (30) days return or destroy (and certify to such destruction in writing, such certification not to be unreasonably withheld or delayed) all Confidential\nInformation of the disclosing party, including, without limitation: (a) all tangible and electronic documents, drawings, materials, hardware, disks, tapes; and (b) all\ncopies, notes, summaries and excerpts of any of the foregoing; and (c) all Confidential Information in the possession of any third parties to whom receiving party\ndisclosed Confidential Information pursuant to this Agreement. Notwithstanding the foregoing, receiving party may retain Confidential Information as required by\napplicable Laws or orders of a Government Authority with jurisdiction over receiving party (the "Retention Requirements"), and any such uses or disclosures of\nConfidential Information by the receiving party will be limited to only those uses and disclosures mandated by the Retention Requirements.\nd) Disclosures Required by Law. In the event any Confidential Information is required to be disclosed by Law or order of any Government Authority having\njurisdiction over the receiving party (including as necessary for a party to assert a claim in a court of competent jurisdiction), before any such disclosure the\nreceiving party will provide notice to the disclosing party reasonably sufficient to allow the disclosing party the opportunity to apply for a protective order or other\nrestriction regarding such disclosure. In the event such Confidential Information is disclosed in such circumstances, such Confidential Information shall continue\nto constitute Confidential Information in all other circumstances pursuant to this Agreement.\n4. NON -COMPETITION AND NON-SOLICITATION .\na) Non-Competition. Employee agrees to not, directly or indirectly, during the course of employment and for a period of one (1) year thereafter: (i) Customers.\nSolicit the trade or patronage of any customers or prospective customers or suppliers of Company with respect to any technologies, services, products, trade\nsecrets or other matters in which Company is actively involved or becomes involved during the term of Employee's employment with the Company; or (ii)\nCompetitors. Engage in any business or employment, or aid or endeavor to assist any third party, which is in competition with the products and/or services of\nCompany.\n(b) Non-Solicitation. Employee agrees to not, directly or indirectly, during the course of employment or for a period of one (1) year thereafter, solicit or aid third\nparties to solicit any employee or consultant of Company to leave their employment or engagement with Company in order to accept employment of any kind with\nany other person, including, but not limited to, any firm, company, partnership or corporation.\n(c) Acknowledgement. Employee acknowledges that the scope, geography, and time restrictions of this provision are reasonable. The parties intend that this\nprovision be enforced to the greatest extent permissible. Therefore, should a court of competent jurisdiction hold any portion of this provision to be invalid, this\nprovision is deemed automatically amended to the extent made necessary by the court's opinion, and Employee agrees to execute any and all documents\nnecessary to evidence such amendment. Further, in the event that Employee breaches this provision, then the time limitation of this provision is extended for a\nperiod of time equal to the period of time during which the breach occurred.\n2\n5. DEVELOPMENTS .\n(a) Definitions. "Developments" means, without limitation, all developments, inventions, "know-how", ideas, technological developments, discoveries,\nimprovements, works of authorship, semiconductor chips, mask works, databases, trademarks, service marks, logos, designs, slogans, trade names, domain\nnames, products, technical and statistical data, package designs, product designs, any other designs, models, trade secrets, computer hardware and software,\nalgorithms, improvements and devices. "Employee Developments" means all Developments conceived, developed or made by Party-2 , either alone or with\nothers, in whole or in part, during Party-2's employment with Party-1, which are useful in, or directly or indirectly relate to Party-1's business or business plans.\n(b) Grant and Assignment. Party-2 acknowledges and agrees that all Employee Developments are owned by Party-1 in the entirety as: (a) "works made for hire"\n(to the extent permitted by Law) in which Party-1 owns all copyrights as the author and all other intellectual property and proprietary rights, if legally applicable;\nand (b) the exclusive owner or assignee of all intellectual property and proprietary rights to the Employee Developments, including, but not limited to, all rights to\nthe Employee Developments' inventions, know-how and processes. To the extent that any works within the Employee Developments may not be considered\n"works made for hire" under the United States copyright Laws, and to the extent that any rights to the Employee Developments may be vested in Party-2 , Party-2\nhereby irrevocably grants and assigns, free and clear of any liens, claims or encumbrances, exclusively to Party-1 , each and every right in the Employee\nDevelopments throughout the world, including all copyright, patent, trade secret, and all other intellectual property and proprietary rights, together with all\nrenewals and extensions thereto, and the right to bring actions for past and future infringement. This grant and assignment may be confirmed in a form\nacceptable to Party-1.\n(c) Securing Rights. Party-2 acknowledges and agrees to take all appropriate steps at the request of Party-1, to secure for Party-1 the rights and benefits of\nParty-1 in and to the Employee Developments, to protect Party-1's rights in the Employee Developments, and to appoint Party-1 as Party-2's attorney-in-fact to\nenable Party-1 to record, file and prosecute any application for, and acquire, maintain and enforce, any intellectual property and proprietary rights and any other\nrights in the Employee Developments throughout the universe in all languages and in all media and forms of expression and communication now or later\ndeveloped. Party-2 agrees to waive any and all rights of attribution and integrity Party-2 may have in any of the Employee Developments under Section 17 U.S .C .\n§203 of the United States copyright Laws and any right of privacy or publicity for the Employee Developments identified for all uses as stated and contemplated.\n(d) Ownership. (i) Supplied Tools. Party-1 retains the exclusive ownership interest in all tools, materials, software, hardware, and any other equipment or supplies\nthat Party-1 may provide to Party-2 during Party-2's employment with Party-1 ("Supplied Tools"), and Party-2 acknowledges Party-1's exclusive ownership\ninterest in the Supplied Tools and agrees not to contest such interest. (ii) Limited Use. Party-2 may use the Supplied Tools only to perform Party-2's job\nresponsibilities during the Term. (iii) Disclosures. Party-2 agrees to disclose in writing to Party-1 , and comply with all Party-1 policies and procedures pertaining\nto, all Employee Developments.\n(e) Application for Waiver. Party-2 may apply to the chief executive officer of Party-1 from time to time for a waiver from Party-2's grant and assignment\nobligations for the Employee Developments. In deciding whether or not to grant such a waiver, Party-1 shall reasonably consider the following factors, any one of\nwhich may or may not be dispositive, but the decision to grant such a waiver is entirely within Party-1's discretion: (i) Whether any Supplied Tools, facility, or\nConfidential Information of Party-1 was used in developing the Employee Developments; (ii) Whether the Employee Developments were developed entirely\noutside of Party-2's job responsibilities; (iii) Whether the Employee Developments relate directly to Party-1's business; (iv) Whether the Employee Developments\nrelate to Party-1's actual or demonstrably anticipated research or development; and/or (v) Whether the Employee Developments result from any work performed\nby Party-2 for Party-1 .\n(f) Background Developments. (i) Applicability. Party-2 may provide certain Developments, created prior to the Term and Party-2's employment with Party-1,\nwhich underlie, pertain to, are embodied by or become embodied in any Employee Developments ("Background Developments"). (ii) License to Background\nDevelopments. However, in the event that any Employee Developments and any other Developments that incorporate elements which are Background\nDevelopments, Party-2 hereby grants and agrees to grant to Party-1, free and clear of an liens, claims or encumbrances, an irrevocable, perpetual, non -exclusive,\nworldwide, transferable, fully-paid up, royalty-free license in the Background Developments to permit Party-1 to exercise the rights, in both print and electronic\nformat, and any other format, to make, use, sell, have made and manufactured, have sold, offer for sale, design, reproduce, make derivative works from, publicly\ndisplay, publicly perform, and publicly distribute the Background Developments, as well as any new designs or derivations of the Background Developments,\nincluding, but not limited to, any and all moral rights of attribution and integrity, and to otherwise exploit all Background Developments. Party-2 has listed below\nthe only Background Developments that are or might be incorporated into the Employee Developments and any obligations owed to third parties regarding the\nBackground Developments (failure to list indicates there are none):\n3\n6. TERM AND SURVIVAL.\n(a) Term. The term of this Agreement (the "Term") commences on the Effective Date and ends at the end of Party-2's employment with Party-1.\n(b) Survival. The following captioned sections survive any termination, expiration or non-renewal of this Agreement: "Nondisclosure and Uses" (only for purposes\nof complying with Section 3.3.5 (Return of Confidential Information) and only for thirty (30) days or such longer period as necessary to comply with the Retention\nRequirements, also, if any personnel of a receiving party retains in their memory any specific contents of a disclosing party's Confidential Information, such\nspecific contents may not ever be disclosed to any third parties except under "Disclosures Required by Law"), "Return of Confidential Information", "Disclosures\nRequired by Law", "Survival", and "General". "Non-Competition" and "Non-Solicitation" survive for the length time stated therein.\n7. GENERAL .\nEntire Agreement and Amendments. This Agreement is the entire agreement between the parties and supersedes all earlier and simultaneous agreements\nregarding the subject matter, including, without limitation, any invoices, business forms, purchase orders, proposals or quotations. This Agreement may be\namended only in a written document, signed by both parties. Independent Contractors, Third Party Beneficiaries, and Subcontractors. The parties acknowledge\nthat they are independent contractors under this Agreement, and except if expressly stated otherwise, none of the parties, nor any of their employees or agents,\nhas the power or authority to bind or obligate another party. Except if expressly stated, no third party is a beneficiary of this Agreement. Party-1 may not\nsubcontract any obligation under this Agreement without Party-2's prior written consent. Party-2 can subcontract without Party-1's consent. Each party is\nresponsible for its subcontractors' compliance with and breach of this Agreement as if the subcontractors' acts and omissions were the party's own. Governing\nLaw and Forum. All claims regarding this Agreement are governed by and construed in accordance with the Laws of Colorado, applicable to contracts wholly\nmade and performed in such jurisdiction, except for any choice or conflict of Law principles, and must be litigated in Colorado, regardless of the inconvenience of\nthe forum, except that a party may seek temporary injunctive relief in any venue of its choosing. The parties acknowledge and agree that the United Nations\nConvention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Assignment. This Agreement binds and\ninures to the benefit of the parties' successors and assigns. This Agreement is not assignable, delegable, sublicenseable or otherwise transferable by any party in\nwhole or in part without the prior written consent of the other party (or parties). Any transfer, assignment, delegation or sublicense by a party without such prior\nwritten consent is invalid. However, any party may assign this Agreement to a third party purchasing: (a) majority control of the party's equity shares; or (b) all or\nsubstantially all of either (i) a party's assets or (ii) the assets of the party's relevant business unit under this Agreement. No Waivers, Cumulative Remedies. A\nparty's failure to insist upon strict performance of any provision of this Agreement is not a waiver of any of its rights under this Agreement. Except if expressly\nstated otherwise, all remedies under this Agreement, at Law or in equity, are cumulative and nonexclusive.\nSeverability. If any portion of this Agreement is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect the original\nintent of the parties, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and\njurisdictions.\nNotices. All notices, including notices of address changes, under this Agreement must be sent by registered or certified mail or by overnight commercial delivery\nto the address set forth in this Agreement by each party.\nCaptions and Plural Terms.\nAll captions are for purposes of convenience only and are not to be used in interpretation or enforcement of this Agreement. Terms defined in the singular have\nthe same meaning in the plural and vice versa.\nIN WITNESS WHEREOF, the parties execute this Agreement as of the Effective Date. Each person who signs this Agreement below represents that such person\nis fully authorized to sign this Agreement on behalf of the applicable party.\nROBERT A. NEWSON\nNAME:\nFOR:\n4	Exhibit10.9\nEMPLOYEE CONFIDENTIALITY AGREEMENT\nThis Employee Confidentiality Agreement ("Agreement") is made as of May 17, 2010 (the "Effective Date") by and between Victoria Industries, Inc., a Nevada\ncorporation (to be named as Motor SportCountry Club Holdings, Inc.) ("Party-1") and RobertA. Newson, an individual ("Party-2"), and\nParty-2 is employed by Party-1 in the following role: (President and ChiefOperating Officer) (the "Business Purpose"). In the course of thatemployment regarding\nthe Business Purpose, Party-1 may disclose to Party-2 certain Confidential Information (as thatterm is later defined). By virtue ofthis Agreement, each party\nwishes to protectthe confidentiality of such Confidential Information.\nParty-1 and Party-2 therefore agree as follows:\n1. DEFINITIONS.\n(a) "Confidential Information" means private or confidential information, data or materials of Party-1, and all such private or confidential information, data or\nmaterials must be marked as "confidential" or "proprietary" to the disclosing party, however, for oral disclosures of information, data or materials, the disclosing\nparty may describe the disclosure within twenty (20) days thereafter in a written notice provided to Contractor, referencing the time, date, and receiving individuals\nfor the disclosure, at which point such described information, data or materials become Confidential Information of the disclosing party on a going forward basis\nfrom the date of receiving party's receiptofsuch letter.\n(b) "GovernmentAuthority" means any governmental authority or court, tribunal, agency, department, commission, arbitrator, board, bureau, or instrumentality of\nthe United States ofAmerica or any other country or territory, or domestic or foreign state, prefecture, province, commonwealth, city, county, municipality,\nterritory, protectorate or possession. (c) "Law" means all Laws, statutes, ordinances, codes, regulations and other pronouncements having the effectof Law of\nany GovernmentAuthority.\n2. EMPLOYMENT.\n(a) No Employment Agreement. Party-2 acknowledges and agrees thatemploymentwith Party-1 is on an at-will basis, and either Party-1 or Party-2 may\nterminate the employment relationship at any time, for convenience, for any reason or no reason, and with or without cause. This Agreement is not an\nemployment agreement and is concerned only with this Agreement's subject matter.\n(b) OPPORTUNITY TO CONSULT WITH COUNSEL AND NO CONSTRUCTION AGAINST THE DRAFTER. PARTY-2 ACKNOWLEDGES AND AGREES THAT\nPARTY-2 HAD A FULL AND AMPLE OPPORTUNITY TO CONSULT LEGAL COUNSEL REGARDING THIS AGREEMENT PRIOR TO SIGNING, HAS FREELY\nAND VOLUNTARILY ENTERED INTO THIS AGREEMENT, AND HAS READ AND UNDERSTOOD EACH AND EVERY PROVISION, INCLUDING, BUT NOT\nLIMITED TO, PARTY-2'S RIGHTS, OBLIGATIONS, AND APPLICABLE TERMS AND CONDITIONS. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT\nANY INTERPRETATION OF THIS AGREEMENT MAY NOT BE CONSTRUED AGAINST PARTY-l BECAUSE IT DRAFTED THIS AGREEMENT.\n \n3. CONFIDENTIALITY.\n(a) Confidential Information Disclosures. In the performance ofthis Agreement Party-2 may receive the Confidential Information of Party-1. Disclosures of\nConfidential Information made by Party-1 (or the "disclosing party") to Party-2 (or the "receiving party"), are pursuant to all terms and conditions ofthis\nAgreement. All Confidential Information of the disclosing party will remain the exclusive property of the disclosing party. The terms and conditions of this\nAgreement are deemed to be Confidential Information of both parties.\n(b) Exclusions. Confidential Information does not include information, data or materials that, as proved by written records: (i) Public Domain. Are or become a part\nof the public domain through no act or omission on the part of the receiving party and no violation of any obligation of nondisclosure by any third party; or (ii)\nIndependently Developed. Are independently developed by the receiving party without reference to the disclosing party's Confidential Information, as evidenced\nthrough written records created in the normal course of the receiving party's business; or (iii) Third Party Source. Are disclosed to the receiving party through a\nthird party source or series ofsources without any violation of nondisclosure with respectto such information, data or materials by any source(s) in the series\n(however, such information only becomes Confidential Information once the receiving party is aware ofsuch breach).\n(c) Duties. Without limiting any other obligations under this Agreement, the parties agree to the following specified duties: (i) Nondisclosure and Uses. The\nreceiving party must use commercially reasonable methods, at least as substantial as the methods it uses to protect its own confidential information, data and\nmaterials of a similar nature, to maintain the confidentiality of the Confidential Information by notcopying, publishing, disclosing to third parties or using the\nConfidential Information; except the receiving party may use the Confidential Information in order to perform the receiving party's obligations or engage in\nactivities contemplated under the Business Purpose. A receiving party may not modify or delete any proprietary rights legend appearing in the disclosing party's\nConfidential Information. (ii) Disclosures to Agents and Subcontractors. A receiving party may share Confidential Information with: (a) its attorneys under an\nobligation ofconfidentiality and nondisclosure no less protective of the disclosing party's Confidential Information than the terms and conditions of this Agreement;\nand (b) its subcontractors pursuant to a written confidentiality agreement no less protective of the disclosing party's Confidential Information than this Agreement\n(a "Subcontractor Confidentiality Agreement"), provided that in no event may an attorney or subcontractor of a receiving party disclose Confidential Information to\nany other third party, with the exception of a GovernmentAuthority to which a disclosure may be made (for subcontractors, only pursuantto a provision in the\nSubcontractor Confidentiality Agreement identical to Section 2.4 (Disclosures Required by Law) of this Agreement), except thatthe attorney or subcontractor\nmustgive the prior notice required therein to both the receiving party and the disclosing party. Receiving party agrees to assume all liability and responsibility for\nsuch attorneys" and subcontractors' compliance with and breach of the terms and conditions of this Agreement as ifsuch attorneys' and subcontractors' acts and\nomissions were receiving party's own. (iii) Notice. Upon discovery, receiving party agrees to provide disclosing party immediate telephonic and written notice of a\nbreach of: (a) any obligation of confidentiality and nondisclosure required hereunder prior to a disclosure; and (b) any Subcontractor Confidentiality Agreement.\n(iv) Return ofConfidential Information. After a request by the disclosing party, and after termination or expiration of this Agreement, receiving party mustwithin\nthirty (30) days return or destroy (and certify to such destruction in writing, such certification not to be unreasonably withheld or delayed) all Confidential\nInformation ofthe disclosing party, including, without limitation: (a) all tangible and electronic documents, drawings, materials, hardware, disks, tapes; and (b) all\ncopies, notes, summaries and excerpts of any ofthe foregoing; and (c) all Confidential Information in the possession of any third parties to whom receiving party\ndisclosed Confidential Information pursuant to this Agreement. Notwithstanding the foregoing, receiving party may retain Confidential Information as required by\napplicable Laws or orders of a GovernmentAuthority with jurisdiction over receiving party (the "Retention Requirements"), and any such uses or disclosures of\nConfidential Information by the receiving party will be limited to only those uses and disclosures mandated by the Retention Requirements.\nd) Disclosures Required by Law. In the event any Confidential Information is required to be disclosed by Law or order of any GovernmentAuthority having\njurisdiction over the receiving party (including as necessary for a party to assert a claim in a court ofcompetentjurisdiction), before any such disclosure the\nreceiving party will provide notice to the disclosing party reasonably sufficient to allow the disclosing party the opportunity to apply for a protective order or other\nrestriction regarding such disclosure. In the eventsuch Confidential Information is disclosed in such circumstances, such Confidential Information shall continue\nto constitute Confidential Information in all other circumstances pursuantto this Agreement.\n4. NON-COMPETITION AND NON-SOLICITATION.\na) Non-Competition. Employee agrees to not, directly or indirectly, during the course of employment and for a period ofone (1) year thereafter: (i) Customers.\nSolicit the trade or patronage of any customers or prospective customers or suppliers ofCompany with respect to any technologies, services, products, trade\nsecrets or other matters in which Company is actively involved or becomes involved during the term of Employee's employment with the Company; or (ii)\nCompetitors. Engage in any business or employment, or aid or endeavor to assist any third party, which is in competition with the products and/or sen/ices of\nCompany.\n(b) Non-Solicitation. Employee agrees to not, directly or indirectly, during the course ofemployment or for a period of one (1) year thereafter, solicit or aid third\nparties to solicit any employee or consultant ofCompany to leave their employmentor engagementwith Company in order to acceptemployment of any kind with\nany other person, including, but not limited to, any firm, company, partnership or corporation.\n(c) Acknowledgement. Employee acknowledges that the scope, geography, and time restrictions of this provision are reasonable. The parties intend thatthis\nprovision be enforced to the greatest extent permissible. Therefore, should a court ofcompetentjurisdiction hold any portion of this provision to be invalid, this\nprovision is deemed automatically amended to the extent made necessary by the court's opinion, and Employee agrees to execute any and all documents\nnecessary to evidence such amendment. Further, in the event that Employee breaches this provision, then the time limitation ofthis provision is extended for a\nperiod oftime equal to the period oftime during which the breach occurred.\n \n5. DEVELOPMENTS.\n(a) Definitions. "Developments" means, withoutlimitation, all developments, inventions, "know-how", ideas, technological developments, discoveries,\nimprovements, works of authorship, semiconductor chips, mask works, databases, trademarks, service marks, logos, designs, slogans, trade names, domain\nnames, products, technical and statistical data, package designs, productdesigns, any other designs, models, trade secrets, computer hardware and software,\nalgorithms, improvements and devices. "E mployee Developments" means all Developments conceived, developed or made by Party-2, either alone or with\nothers, in whole or in part, during Party-2's employmentwith Party-1, which are useful in, or directly or indirectly relate to Party-1's business or business plans.\n(b) Grantand Assignment. Party-2 acknowledges and agrees that all Employee Developments are owned by Party-l in the entirety as: (a) "works made for hire"\n(to the extent permitted by Law) in which Party-l owns all copyrights as the author and all other intellectual property and proprietary rights, if legally applicable;\nand (b) the exclusive owner or assignee of all intellectual property and proprietary rights to the Employee Developments, including, but not limited to, all rights to\nthe Employee Developments' inventions, know-how and processes. To the extent that any works within the Employee Developments may not be considered\n"works made for hire" under the United States copyright Laws, and to the extent that any rights to the Employee Developments may be vested in Party-2, Party-2\nhereby irrevocably grants and assigns, free and clear of any liens, claims or encumbrances, exclusively to Party-1, each and every right in the Employee\nDevelopments throughout the world, including all copyright, patent, trade secret, and all other intellectual property and proprietary rights, together with all\nrenewals and extensions thereto, and the right to bring actions for past and future infringement. This grant and assignment may be confirmed in a form\nacceptable to Party-l.\n(c) Securing Rights. Party-2 acknowledges and agrees to take all appropriate steps atthe requestof Party-1, to secure for Party-l the rights and benefits of\nParty-l in and to the Employee Developments, to protect Party-1's rights in the Employee Developments, and to appoint Party-l as Party-2's attorney-in-factto\nenable Party-l to record, file and prosecute any application for, and acquire, maintain and enforce, any intellectual property and proprietary rights and any other\nrights in the Employee Developments throughoutthe universe in all languages and in all media and forms of expression and communication now or later\ndeveloped. Party-2 agrees to waive any and all rights ofattribution and integrity Party-2 may have in any ofthe Employee Developments under Section 17 U.S.C.\n§203 of the United States copyright Laws and any right of privacy or publicity for the Employee Developments identified for all uses as stated and contemplated.\n(d) Ownership. (i) Supplied Tools. Party-l retains the exclusive ownership interest in all tools, materials, software, hardware, and any other equipmentor supplies\nthat Party-l may provide to Party-2 during Party-2's employmentwith Party-1("Supplied Tools"), and Party-2 acknowledges Party-1's exclusive ownership\ninterest in the Supplied Tools and agrees not to contest such interest. (ii) Limited Use. Party-2 may use the Supplied Tools only to perform Party-2's job\nresponsibilities during the Term. (iii) Disclosures. Party-2 agrees to disclose in writing to Party-1, and comply with all Party-l policies and procedures pertaining\nto, all Employee Developments.\n(e) Application for Waiver. Party-2 may apply to the chief executive officer of Party-l from time to time for a waiver from Party-2's grant and assignment\nobligations for the Employee Developments. In deciding whether or not to grantsuch a waiver, Party-l shall reasonably consider the following factors, any one of\nwhich may or may not be dispositive, butthe decision to grantsuch a waiver is entirely within Party-1's discretion: (i) Whether any Supplied Tools, facility, or\nConfidential Information of Party-l was used in developing the Employee Developments; (ii) Whether the Employee Developments were developed entirely\noutside of Party-2's job responsibilities; (iii) Whether the Employee Developments relate directly to Party-1's business; (iv) Whether the Employee Developments\nrelate to Party-1's actual or demonstrably anticipated research or development; and/or (v) Whether the Employee Developments result from any work performed\nby Party-2 for Party-1.\n(f) Background Developments. (i) Applicability. Party-2 may provide certain Developments, created prior to the Term and Party-2's employmentwith Party-l,\nwhich underlie, pertain to, are embodied by or become embodied in any Employee Developments ("Background Developments"). (ii) License to Background\nDevelopments. However, in the event that any Employee Developments and any other Developments that incorporate elements which are Background\nDevelopments, Party-2 hereby grants and agrees to grant to Party-l, free and clear ofan liens, claims or encumbrances, an irrevocable, perpetual, non-exclusive,\nworldwide, transferable, fully-paid up, royalty-free license in the Background Developments to permit Party-l to exercise the rights, in both print and electronic\nformat, and any other format, to make, use, sell, have made and manufactured, have sold, offer for sale, design, reproduce, make derivative works from, publicly\ndisplay, publicly perform, and publicly distribute the Background Developments, as well as any new designs or derivations of the Background Developments,\nincluding, but not limited to, any and all moral rights of attribution and integrity, and to otherwise exploit all Background Developments. Party-2 has listed below\nthe only Background Developments that are or might be incorporated into the Employee Developments and any obligations owed to third parties regarding the\nBackground Developments (failure to listindicates there are none):\n \n6. TERM AND SURVIVAL.\n(a) Term. The term ofthis Agreement(the "Term") commences on the Effective Date and ends atthe end of Party-2's employmentwith Party-l.\n(b) Sun/ival. The following captioned sections survive any termination, expiration or non-renewal ofthis Agreement: "Nondisclosure and Uses" (only for purposes\nof complying with Section 3.3.5 (Return of Confidential Information) and only for thirty (30) days or such longer period as necessary to comply with the Retention\nRequirements, also, if any personnel of a receiving party retains in their memory any specific contents of a disclosing party's Confidential Information, such\nspecific contents may notever be disclosed to any third parties except under "Disclosures Required by Law"), "Return ofConfidential Information", "Disclosures\nRequired by Law", "Sun/ival", and "General". "Non-Competition" and "Non-Solicitation" survive forthe length time stated therein.\n7. GENERAL.\nEntire Agreement and Amendments. This Agreement is the entire agreement between the parties and supersedes all earlier and simultaneous agreements\nregarding the subject matter, including, without limitation, any invoices, business forms, purchase orders, proposals or quotations. This Agreement may be\namended only in a written document, signed by both parties. Independent Contractors, Third Party Beneficiaries, and Subcontractors. The parties acknowledge\nthat they are independent contractors under this Agreement, and except if expressly stated otherwise, none of the parties, nor any of their employees or agents,\nhas the power or authority to bind or obligate another party. Except if expressly stated, no third party is a beneficiary of this Agreement. Party-l may not\nsubcontract any obligation under this Agreementwithout Party-2's prior written consent. Party-2 can subcontractwithout Party-1's consent. Each party is\nresponsible for its subcontractors' compliance with and breach of this Agreement as if the subcontractors' acts and omissions were the party's own. Governing\nLaw and Forum. All claims regarding this Agreement are governed by and construed in accordance with the Laws ofColorado, applicable to contracts wholly\nmade and performed in such jurisdiction, except for any choice or conflict of Law principles, and must be litigated in Colorado, regardless ofthe inconvenience of\nthe forum, except that a party may seek temporary injunctive relief in any venue of its choosing. The parties acknowledge and agree thatthe United Nations\nConvention on Contracts for the International Sale ofGoods is specifically excluded from application to this Agreement. Assignment. This Agreement binds and\ninures to the benefit of the parties' successors and assigns. This Agreement is not assignable, delegable, sublicenseable or otherwise transferable by any party in\nwhole or in partwithout the prior written consentof the other party (or parties). Any transfer, assignment, delegation or sublicense by a party without such prior\nwritten consent is invalid. However, any party may assign this Agreementto a third party purchasing: (a) majority control ofthe party's equity shares; or (b) all or\nsubstantially all ofeither (i) a party's assets or (ii) the assets ofthe party's relevant business unit underthis Agreement. No Waivers, Cumulative Remedies. A\nparty's failure to insist upon strict performance of any provision ofthis Agreement is not a waiver of any of its rights under this Agreement. Except if expressly\nstated otherwise, all remedies under this Agreement, at Law or in equity, are cumulative and nonexclusive.\nSeverability. If any portion of this Agreement is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect the original\nintentof the parties, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and\njurisdictions.\nNotices. All notices, including notices of address changes, under this Agreement must be sent by registered or certified mail or by overnight commercial delivery\nto the address set forth in this Agreement by each party.\nCaptions and Plural Terms.\nAll captions are for purposes ofconvenience only and are notto be used in interpretation or enforcement of this Agreement. Terms defined in the singular have\nthe same meaning in the plural and vice versa.\nIN WITN ESS WHE REOF, the parties execute this Agreement as of the Effective Date. Each person who signs this Agreement below represents thatsuch person\nis fully authorized to sign this Agreementon behalf of the applicable party.\nROBERTA.NEWSON NAME:\nFOR:\n	E xhibit 10.9\nEMPLOYEE CONFIDENTIALITY AGREEMENT\nThis E mployee Confidentiality Agreement ("Agreement") is made as of May 17, 2010 (the "Effective Date") by and between Victoria Industries, Inc., a Nevada\ncorporation (to be named as Motor S port Country Club Holdings, Inc.) "Party-1") and Robert A. Newson, an individual ("Party-2"), and\nParty-2 is employed by Party-1 in the following role: resident and Chief Operating Officer) (the "Business Purpose"). In the course of that employment regarding\nthe Business urpose, Party-1 may disclose to Party-2 certain Confidential Information (as that term is later defined). By virtue of this Agreement, each party\nwishes to protect the confidentiality of such Confidential Information.\nParty-1 and Party-2 therefore agree as follows:\n1. DEFINITIONS.\n(a) "Confidential Information" means private or confidential information, data or materials of Party-1, and all such private or confidential information, data or\nmaterials must be marked as "confidential" or "proprietary" to the disclosing party, however, for oral disclosures of information, data or materials, the disclosing\nparty may describe the disclosure within twenty (20) days thereafter in a written notice provided to Contractor, referencing the time, date, and receiving individuals\nfor the disclosure, at which point such described information, data or materials become Confidential Information of the disclosing party on a going forward basis\nfrom the date of receiving party's receipt of such letter.\n(b) "Government Authority" means any governmental authority or court, tribunal, agency, department, commission, arbitrator, board, bureau, or instrumentality of\nthe United States of America or any other country or territory, or domestic or foreign state, prefecture, province, commonwealth, city, county, municipality,\nterritory, protectorate or possession. (c) "Law" means all Laws, statutes, ordinances, codes, regulations and other pronouncements having the effect of Law of\nany Government Authority.\n2. EMPLOYMENT.\n(a) No mployment Agreement. Party-2 acknowledges and agrees that employment with Party-1 is on an at-will basis, and either Party-1 or Party-2 may\nterminate the employment relationship at any time, for convenience, for any reason or no reason, and with or without cause. This Agreement is not an\nemployment agreement and is concerned only with this Agreement's subject matter.\n(b) OPPORTUNITY TO CONSULT WITH COUNSEL AND NO CONSTRUCTION AGAINST THE DRAFTER. PARTY-2 ACKNOWLEDGES AND AGREES THAT\nPARTY-2 HAD A FULL AND AMPLE OPPORTUNITY TO CONSULT LEGAL COUNSEL REGARDING THIS AGREEMENT PRIOR TO SIGNING, HAS FREELY\nAND VOLUNTARILY ENTERED INTO THIS AGREEMENT, AND HAS READ AND UNDERSTOOD EACH AND EVERY PROVISION, INCLUDING, BUT NOT\nLIMITED TO, PARTY-2'S RIGHTS, OBLIGATIONS AND APPLICABLE TERMS AND CONDITIONS. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT\nANY INTERPRETATION OF THIS AGREEMENT MAY NOT BE CONSTRUED AGAINST PARTY-1 ECAUSE IT DRAFTED THIS AGREEMENT.\n1\n3. CONFIDENTIALITY.\n(a) Confidential Information Disclosures. In the performance of this Agreement arty-2 may receive the Confidential Information of Party-1. Disclosures of\nConfidential Information made by arty-1 (or the "disclosing party") to Party-2 (or the "receiving party"), are pursuant to all terms and conditions of this\nAgreement. All Confidential Information of the disclosing party wil remain the exclusive property of the disclosing party. The terms and conditions of this\nAgreement are deemed to be Confidential Information of both parties.\n(b) Exclusions. Confidential Information does not include information, data or materials that, as proved by written records: (i) ublic Domain. Are or become a part\nof the public domain through no act or omission on the part of the receiving party and no violation of any obligation of nondisclosure by any third party; or (ii)\nIndependently Developed. Are independently developed by the receiving party without reference to the disclosing party's Confidential Information, as evidenced\nthrough written records created in the normal course of the receiving party's business; or (iii) Third Party Source. Are disclosed to the receiving party through a\nthird party source or series of sources without any violation of nondisclosure with respect to such information, data or materials by any source(s) in the series\n(however, such information only becomes Confidential Information once the receiving party is aware of such breach).\n(c) Duties. Without limiting any other obligations under this Agreement, the parties agree to the following specified duties: (i) Nondisclosure and Uses. The\nreceiving party must use commercially reasonable methods, at least as substantial as the methods it uses to protect its own confidential information, data and\nmaterials of a similar nature, to maintain the confidentiality of the Confidentia Information by not copying, publishing, disclosing to third parties or using the\nConfidential Information; except the receiving party may use the Confidentia Information in order to perform the receiving party's obligations or engage in\nactivities contemplated under the Business Purpose. A receiving party may not modify or delete any proprietary rights legend appearing in the disclosing party's\nConfidential Information. (ii) Disclosures to Agents and Subcontractors. A receiving party may share Confidential Information with: (a) its attorneys under an\nobligation of confidentiality and nondisclosure no less protective of the disclosing party's Confidential Information than the terms and conditions of this Agreement;\nand (b) its subcontractors pursuant to a written confidentiality agreement no less protective of the disclosing party's Confidential Information than this Agreement\n(a "Subcontractor Confidentiality Agreement"'), provided that in no event may an attorney or subcontractor of a receiving party disclose Confidential Information to\nany other third party, with the exception of a Government Authority to which a disclosure may be made (for subcontractors, only pursuant to a provision in the\nSubcontractor Confidentiality Agreement identical to Section 2.4 (Disclosures R equired by Law) of this Agreement), except that the attorney or subcontractor\nmust give the prior notice required therein to both the receiving party and the disclosing party. eceiving party agrees to assume all liability and responsibility for\nsuch attorneys" and subcontractors' compliance with and breach of the terms and conditions of this Agreement as if such attorneys' and subcontractors' acts and\nomissions were receiving party's own. (iii) Notice. pon discovery, receiving party agrees to provide disclosing party immediate telephonic and written notice of\na\nbreach of: (a) any obligation of confidentiality and nondisclosure required hereunder prior to a disclosure; and (b) any Subcontractor Confidentiality Agreement.\n(iv) Return of Confidential Information. After a request by the disclosing party, and after termination or expiration of this Agreement, receiving party must within\nthirty (30) days return or destroy (and certify to such destruction in writing, such certification not to be unreasonably withheld or delayed) all Confidential\nInformation of the disclosing party, including, without limitation: (a) all tangible and electronic documents, drawings, materials, hardware, disks, tapes; and (b) all\ncopies, notes, summaries and excerpts of any of the foregoing; and (c) all Confidential Information in the possession of any third parties to whom receiving party\ndisclosed Confidentia Information pursuant to this Agreement. Notwithstanding the foregoing, receiving party may retain Confidential Information as required by\napplicable Laws or orders of a Government Authority with jurisdiction over receiving party (the "Retention Requirements"), and any such uses or disclosures of\nConfidential Information by the receiving party will be limited to only those uses and disclosures mandated by the etention Requirements.\nd) Disclosures R equired by Law. In the event any Confidential Information is required to be disclosed by Law or order of any G overnment Authority having\njurisdiction over the receiving party (including as necessary for a party to assert a claim in a court of competent jurisdiction), before any such disclosure the\nreceiving party will provide notice to the disclosing party reasonably sufficient to allow the disclosing party the opportunity to apply for a protective order or other\nrestriction regarding such disclosure. In the event such Confidential Information is disclosed in such circumstances, such Confidential Information shal continue\nto constitute Confidential Information in all other circumstances pursuant to this Agreement.\n4. NON-COMPETITION AND NON-SOLICITATION.\na) Non-Competition. Employee agrees to not, directly or indirectly, during the course of employment and for a period of one (1) year thereafter: (i) Customers.\nSolicit the trade or patronage of any customers or prospective customers or suppliers of Company with respect to any technologies, services, products, trade\nsecrets or other matters in which Company is actively involved or becomes involved during the term of mployee's employment with the Company; or (ii)\nCompetitors. Engage in any business or employment, or aid or endeavor to assist any third party, which is in competition with the products and/or services of\nCompany.\n(b) Non-Solicitation. mployee agrees to not, directly or indirectly, during the course of employment or for a period of one (1) year thereafter, solicit or aid third\nparties to solicit any employee or consultant of ompany to leave their employment or engagement with Company in order to accept employment of any kind with\nany other person, including, but not limited to, any firm, company, partnership or corporation.\n(c) Acknowledgement. Employee acknowledges that the scope, geography, and time restrictions of this provision are reasonable. The parties intend that this\nprovision be enforced to the greatest extent permissible. Therefore, should a court of competent jurisdiction hold any portion of this provision to be invalid, this\nprovision is deemed automatically amended to the extent made necessary by the court's opinion, and mployee agrees to execute any and all documents\nnecessary to evidence such amendment. F urther in the event that Employee breaches this provision, then the time limitation of this provision is extended for a\nperiod of time equal to the period of time during which the breach occurred.\n2\n5. DEVELOPMENTS.\n(a) Definitions. "Developments" means, without limitation, all developments, inventions, "know-how", ideas, technological developments, discoveries,\nimprovements, works of authorship, semiconductor chips, mask works, databases, trademarks, service marks, logos, designs, slogans, trade names, domain\nnames, products, technical and statistical data, package designs, product designs, any other designs, models, trade secrets, computer hardware and software,\nalgorithms, improvements and devices. "Employee Developments" means all Developments conceived, developed or made by Party-2, either alone or with\nothers, in whole or in part, during Party-2's employment with Party-1, which are usefu in, or directly or indirectly relate to Party-1's business or business plans.\n(b) Grant and Assignment. Party-2 acknowledges and agrees that all mployee Developments are owned by arty-1 in the entirety as (a) "works made for hire"\n(to the extent permitted by Law) in which Party-1 owns all copyrights as the author and all other intellectual property and proprietary rights, if legally applicable;\nand (b) the exclusive owner or assignee of all intellectual property and proprietary rights to the Employee Developments, including, but not limited to, all rights\nto\nthe Employee Developments' inventions, know-how and processes. To the extent that any works within the Employee Developments may not be considered\n"works made for hire" under the United s tates copyright Laws, and to the extent that any rights to the Employee Developments may be vested in Party-2, Party-2\nhereby irrevocably grants and assigns, free and clear of any liens, claims or encumbrances, exclusively to Party-1, each and every right in the mployee\nDevelopments throughout the world, including all copyright, patent, trade secret, and all other intellectual property and proprietary rights, together with all\nrenewals and extensions thereto, and the right to bring actions for past and future infringement. This grant and assignment may be confirmed in a form\nacceptable to Party-1.\n(c)\nSecuring Rights. Party-2 acknowledges and agrees to take all appropriate steps at the request of arty-1 to secure for arty-1 the rights and benefits of\nParty-1 in and to the Employee Developments, to protect Party-1's rights in the Employee Developments, and to appoint arty-1 as Party-2's attorney-in-fact to\nenable Party-1 to record, file and prosecute any application for, and acquire, maintain and enforce, any intellectual property and proprietary rights and any other\nrights in the Employee Developments throughout the universe in all languages and in all media and forms of expression and communication now or later\ndeveloped. Party-2 agrees to waive any and all rights of attribution and integrity Party-2 may have in any of the mployee Developments under Section 17 U.S.C.\n$203 of the United States copyright Laws and any right of privacy or publicity for the mployee Developments identified for all uses as stated and contemplated.\n(d) Ownership. (i) upplied Tools. Party-1 retains the exclusive ownership interest in all tools, materials, software, hardware, and any other equipment or supplies\nthat Party-1 may provide to Party-2 during Party-2's employment with Party-1 ("Supplied Tools"), and Party-2 acknowledges Party-1's exclusive ownership\ninterest in the Supplied Tools and agrees not to contest such interest. (ii) Limited Use. Party-2 may use the Supplied Tools only to perform Party-2's job\nresponsibilities during the Term. (iii) Disclosures. Party-2 agrees to disclose in writing to Party-1, and comply with all Party-1 policies and procedures pertaining\nto, all E mployee Developments.\n(e) Application for Waiver. Party-2 may apply to the chief executive officer of Party-1 from time to time for a waiver from arty-2's grant and assignment\nobligations for the Employee Developments. In deciding whether or not to grant such a waiver, Party-1 shall reasonably consider the following factors, any one\nof\nwhich may or may not be dispositive but the decision to grant such a waiver is entirely within Party-1's discretion: (i) Whether any Supplied Tools, facility, or\nConfidentia Information of arty-1 was used in developing the Employee Developments; (ii) Whether the mployee Developments were developed entirely\noutside of Party-2's job responsibilities; (iii) Whether the mployee Developments relate directly to Party-1's business; (iv) Whether the mployee Developments\nrelate to Party-1's actual or demonstrably anticipated research or development; and/or (v) Whether the Employee Developments result from any work performed\nby Party-2 for Party-1\n(f) Background Developments. (i) Applicability. Party-2 may provide certain Developments, created prior to the Term and Party-2's employment with Party-1\nwhich underlie, pertain to, are embodied by or become embodied in any E mployee Developments Background Developments"). (ii) License to Background\nDevelopments. However, in the event that any E mployee Developments and any other Developments that incorporate elements which are Background\nDevelopments, Party-2 hereby grants and agrees to grant to Party-1 free and clear of an liens, claims or encumbrances, an irrevocable, perpetual, non-exclusive,\nworldwide, transferable, fully-paid up, royalty-free license in the Background Developments to permit arty-1 to exercise the rights, in both print and electronic\nformat, and any other format, to make, use, sell, have made and manufactured, have sold, offer for sale, design, reproduce, make derivative works from publicly\ndisplay, publicly perform and publicly distribute the Background Developments, as well as any new designs or derivations of the Background Developments,\nincluding, but not limited to, any and all moral rights of attribution and integrity, and to otherwise exploit all Background Developments. Party-2 has listed below\nthe only Background Developments that are or might be incorporated into the Employee Developments and any obligations owed to third parties regarding the\nBackground Developments (failure to list indicates there are none):\n3\n6. TERM AND SURVIVAL.\n(a) Term. The term of this Agreement (the "Term") commences on the ffective Date and ends at the end of Party-2's employment with Party-1.\n(b) Survival. The following captioned sections survive any termination, expiration or non-renewal of this Agreement "Nondisclosure and Uses" (only for purposes\nof complying with S ection 3.3.5 (Return of Confidential Information) and only for thirty (30) days or such longer period as necessary to comply with the Retention\nRequirements, also, if any personnel of a receiving party retains in their memory any specific contents of a disclosing party's Confidential Information, such\nspecific contents may not ever be disclosed to any third parties except under "Disclosures equired by Law") "Return of Confidential Information", "Disclosures\nRequired by Law", "Survival", and "General". Non-Competition" and "Non-Solicitation" survive for the length time stated therein.\n7. GENERAL.\nE\nntire Agreement and Amendments. This Agreement is the entire agreement between the parties and supersedes all earlier and simultaneous agreements\nregarding the subject matter, including, without limitation, any invoices, business forms, purchase orders, proposals or quotations. This Agreement may be\namended only in a written document, signed by both parties. Independent Contractors, Third arty Beneficiaries, and Subcontractors. The parties acknowledge\nthat they are independent contractors under this Agreement, and except if expressly stated otherwise, none of the parties, nor any of their employees or agents,\nhas the power or authority to bind or obligate another party. xcept if expressly stated, no third party is a beneficiary of this Agreement. arty-1 may not\nsubcontract any obligation under this Agreement without Party-2's prior written consent. arty-2 can subcontract without arty-1's consent. Each party is\nresponsible for its subcontractors' compliance with and breach of this Agreement as if the subcontractors' acts and omissions were the party's own. Governing\nLaw and Forum. All claims regarding this Agreement are governed by and construed in accordance with the Laws of Colorado, applicable to contracts wholly\nmade and performed in such jurisdiction, except for any choice or conflict of Law principles, and must be litigated in Colorado, regardless of the inconvenience of\nthe forum, except that a party may seek temporary injunctive relief in any venue of its choosing. The parties acknowledge and agree that the United Nations\nConvention on Contracts for the International Sale of oods is specifically excluded from application to this Agreement. Assignment. This Agreement binds and\ninures to the benefit of the parties' successors and assigns. This Agreement is not assignable, delegable, sublicenseable or otherwise transferable by any party in\nwhole or in part without the prior written consent of the other party (or parties). Any transfer, assignment, delegation or sublicense by a party without such prior\nwritten consent is invalid. However, any party may assign this Agreement to a third party purchasing (a) majority control of the party's equity shares; or (b) all or\nsubstantially all of either (i) a party's assets or (ii) the assets of the party's relevant business unit under this Agreement. No Waivers, Cumulative emedies. A\nparty's failure to insist upon strict performance of any provision of this Agreement is not a waiver of any of its rights under this Agreement. Except if expressly\nstated otherwise, all remedies under this Agreement, at Law or in equity, are cumulative and nonexclusive.\nSeverability. If any portion of this Agreement is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect the original\nintent of the parties, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and\njurisdictions\nNotices. All notices, including notices of address changes, under this Agreement must be sent by registered or certified mail or by overnight commercial delivery\nto the address set forth in this Agreement by each party.\nCaptions and Plural Terms.\nAll captions are for purposes of convenience only and are not to be used in interpretation or enforcement of this Agreement. Terms defined in the singular have\nthe same meaning in the plural and vice versa.\nIN WITNESS WHEREOF, the parties execute this Agreement as of the Effective Date. Each person who signs this Agreement below represents that such person\nis fully authorized to sign this Agreement on behalf of the applicable party.\nROBERT A. NEWSON\nNAME:\nFOR:\n4	Exhibit 10.9\nEMPLOYEE CONFIDENTIALITY AGREEMENT\nThis Employee Confidentiality Agreement ("Agreement") is made as of May 17, 2010 (the "Effective Date") by and between Victoria Industries, Inc., a Nevada\ncorporation (to be named as Motor Sport Country Club Holdings, Inc.) ("Party-1") and Robert A. Newson, an individual ("Party-2"), and\nParty-2 is employed by Party-1 in the following role: (President and Chief Operating Officer) (the "Business Purpose"). In the course of that employment regarding\nthe Business Purpose, Party-1 may disclose to Party-2 certain Confidential Information (as that term is later defined). By virtue of this Agreement, each party\nwishes to protect the confidentiality of such Confidential Information.\nParty-1 and Party-2 therefore agree as follows:\n1. DEFINITIONS.\n(a) "Confidential Information" means private or confidential information, data or materials of Party-1, and all such private or confidential information, data or\nmaterials must be marked as "confidential" or "proprietary" to the disclosing party, however, for oral disclosures of information, data or materials, the disclosing\nparty may describe the disclosure within twenty (20) days thereafter in a written notice provided to Contractor, referencing the time, date, and receiving individuals\nfor the disclosure, at which point such described information, data or materials become Confidential Information of the disclosing party on a going forward basis\nfrom the date of receiving party's receipt of such letter.\n(b) "Government Authority" means any governmental authority or court, tribunal, agency, department, commission, arbitrator, board, bureau, or instrumentality of\nthe United States of America or any other country or territory, or domestic or foreign state, prefecture, province, commonwealth, city, county, municipality,\nterritory, protectorate or possession. (c) "Law" means all Laws, statutes, ordinances, codes, regulations and other pronouncements having the effect of Law of\nany Government Authority.\n2. EMPLOYMENT.\n(a) No Employment Agreement. Party-2 acknowledges and agrees that employment with Party-1 is on an at-will basis, and either Party-1 or Party-2 may\nterminate the employment relationship at any time, for convenience, for any reason or no reason, and with or without cause. This Agreement is not an\nemployment agreement and is concerned only with this Agreement's subject matter.\n(b) OPPORTUNITY TO CONSULT WITH COUNSEL AND NO CONSTRUCTION AGAINST THE DRAFTER. PARTY -2 ACKNOWLEDGES AND AGREES THAT\nPARTY-2 HAD A FULL AND AMPLE OPPORTUNITY TO CONSULT LEGAL COUNSEL REGARDING THIS AGREEMENT PRIOR TO SIGNING, HAS FREELY\nAND VOLUNTARILY ENTERED INTO THIS AGREEMENT, AND HAS READ AND UNDERSTOOD EACH AND EVERY PROVISION , INCLUDING, BUT NOT\nLIMITED TO, PARTY -2'S RIGHTS, OBLIGATIONS , AND APPLICABLE TERMS AND CONDITIONS . BOTH PARTIES ACKNOWLEDGE AND AGREE THAT\nANY INTERPRETATION OF THIS AGREEMENT MAY NOT BE CONSTRUED AGAINST PARTY-1 BECAUSE IT DRAFTED THIS AGREEMENT.\n1\n3. CONFIDENTIALITY .\n(a) Confidential Information Disclosures. In the performance of this Agreement Party-2 may receive the Confidential Information of Party-1 . Disclosures of\nConfidential Information made by Party-1 (or the "disclosing party") to Party-2 (or the "receiving party"), are pursuant to all terms and conditions of this\nAgreement. All Confidential Information of the disclosing party will remain the exclusive property of the disclosing party. The terms and conditions of this\nAgreement are deemed to be Confidential Information of both parties.\n(b) Exclusions. Confidential Information does not include information, data or materials that, as proved by written records: (i) Public Domain. Are or become a part\nof the public domain through no act or omission on the part of the receiving party and no violation of any obligation of nondisclosure by any third party; or (ii)\nIndependently Developed. Are independently developed by the receiving party without reference to the disclosing party's Confidential Information, as evidenced\nthrough written records created in the normal course of the receiving party's business; or (iii) Third Party Source. Are disclosed to the receiving party through a\nthird party source or series of sources without any violation of nondisclosure with respect to such information, data or materials by any source(s) in the series\n(however, such information only becomes Confidential Information once the receiving party is aware of such breach).\n(c) Duties. Without limiting any other obligations under this Agreement, the parties agree to the following specified duties: (i) Nondisclosure and Uses. The\nreceiving party must use commercially reasonable methods, at least as substantial as the methods it uses to protect its own confidential information, data and\nmaterials of a similar nature, to maintain the confidentiality of the Confidential Information by not copying, publishing, disclosing to third parties or using the\nConfidential Information; except the receiving party may use the Confidential Information in order to perform the receiving party's obligations or engage in\nactivities contemplated under the Business Purpose. A receiving party may not modify or delete any proprietary rights legend appearing in the disclosing party's\nConfidential Information. (ii) Disclosures to Agents and Subcontractors. A receiving party may share Confidential Information with: (a) its attorneys under an\nobligation of confidentiality and nondisclosure no less protective of the disclosing party's Confidential Information than the terms and conditions of this Agreement;\nand (b) its subcontractors pursuant to a written confidentiality agreement no less protective of the disclosing party's Confidential Information than this Agreement\n(a "Subcontractor Confidentiality Agreement"), provided that in no event may an attorney or subcontractor of a receiving party disclose Confidential Information to\nany other third party, with the exception of a Government Authority to which a disclosure may be made (for subcontractors, only pursuant to a provision in the\nSubcontractor Confidentiality Agreement identical to Section 2.4 (Disclosures Required by Law) of this Agreement), except that the attorney or subcontractor\nmust give the prior notice required therein to both the receiving party and the disclosing party. Receiving party agrees to assume all liability and responsibility for\nsuch attorneys'' and subcontractors' compliance with and breach of the terms and conditions of this Agreement as if such attorneys' and subcontractors' acts and\nomissions were receiving party's own. (iii) Notice. Upon discovery, receiving party agrees to provide disclosing party immediate telephonic and written notice of a\nbreach of: (a) any obligation of confidentiality and nondisclosure required hereunder prior to a disclosure; and (b) any Subcontractor Confidentiality Agreement.\n(iv) Return of Confidential Information. After a request by the disclosing party, and after termination or expiration of this Agreement, receiving party must within\nthirty (30) days return or destroy (and certify to such destruction in writing, such certification not to be unreasonably withheld or delayed) all Confidential\nInformation of the disclosing party, including, without limitation: (a) all tangible and electronic documents, drawings, materials, hardware, disks, tapes; and (b) all\ncopies, notes, summaries and excerpts of any of the foregoing; and (c) all Confidential Information in the possession of any third parties to whom receiving party\ndisclosed Confidential Information pursuant to this Agreement. Notwithstanding the foregoing, receiving party may retain Confidential Information as required by\napplicable Laws or orders of a Government Authority with jurisdiction over receiving party (the "Retention Requirements"), and any such uses or disclosures of\nConfidential Information by the receiving party will be limited to only those uses and disclosures mandated by the Retention Requirements.\nd) Disclosures Required by Law. In the event any Confidential Information is required to be disclosed by Law or order of any Government Authority having\njurisdiction over the receiving party (including as necessary for a party to assert a claim in a court of competent jurisdiction), before any such disclosure the\nreceiving party will provide notice to the disclosing party reasonably sufficient to allow the disclosing party the opportunity to apply for a protective order or other\nrestriction regarding such disclosure. In the event such Confidential Information is disclosed in such circumstances, such Confidential Information shall continue\nto constitute Confidential Information in all other circumstances pursuant to this Agreement.\n4. NON -COMPETITION AND NON-SOLICITATION .\na) Non-Competition. Employee agrees to not, directly or indirectly, during the course of employment and for a period of one (1) year thereafter: (i) Customers.\nSolicit the trade or patronage of any customers or prospective customers or suppliers of Company with respect to any technologies, services, products, trade\nsecrets or other matters in which Company is actively involved or becomes involved during the term of Employee's employment with the Company; or (ii)\nCompetitors. Engage in any business or employment, or aid or endeavor to assist any third party, which is in competition with the products and/or services of\nCompany.\n(b) Non-Solicitation. Employee agrees to not, directly or indirectly, during the course of employment or for a period of one (1) year thereafter, solicit or aid third\nparties to solicit any employee or consultant of Company to leave their employment or engagement with Company in order to accept employment of any kind with\nany other person, including, but not limited to, any firm, company, partnership or corporation.\n(c) Acknowledgement. Employee acknowledges that the scope, geography, and time restrictions of this provision are reasonable. The parties intend that this\nprovision be enforced to the greatest extent permissible. Therefore, should a court of competent jurisdiction hold any portion of this provision to be invalid, this\nprovision is deemed automatically amended to the extent made necessary by the court's opinion, and Employee agrees to execute any and all documents\nnecessary to evidence such amendment. Further, in the event that Employee breaches this provision, then the time limitation of this provision is extended for a\nperiod of time equal to the period of time during which the breach occurred.\n2\n5. DEVELOPMENTS .\n(a) Definitions. "Developments" means, without limitation, all developments, inventions, "know-how", ideas, technological developments, discoveries,\nimprovements, works of authorship, semiconductor chips, mask works, databases, trademarks, service marks, logos, designs, slogans, trade names, domain\nnames, products, technical and statistical data, package designs, product designs, any other designs, models, trade secrets, computer hardware and software,\nalgorithms, improvements and devices. "Employee Developments" means all Developments conceived, developed or made by Party-2 , either alone or with\nothers, in whole or in part, during Party-2's employment with Party-1, which are useful in, or directly or indirectly relate to Party-1's business or business plans.\n(b) Grant and Assignment. Party-2 acknowledges and agrees that all Employee Developments are owned by Party-1 in the entirety as: (a) "works made for hire"\n(to the extent permitted by Law) in which Party-1 owns all copyrights as the author and all other intellectual property and proprietary rights, if legally applicable;\nand (b) the exclusive owner or assignee of all intellectual property and proprietary rights to the Employee Developments, including, but not limited to, all rights to\nthe Employee Developments' inventions, know-how and processes. To the extent that any works within the Employee Developments may not be considered\n"works made for hire" under the United States copyright Laws, and to the extent that any rights to the Employee Developments may be vested in Party-2 , Party-2\nhereby irrevocably grants and assigns, free and clear of any liens, claims or encumbrances, exclusively to Party-1 , each and every right in the Employee\nDevelopments throughout the world, including all copyright, patent, trade secret, and all other intellectual property and proprietary rights, together with all\nrenewals and extensions thereto, and the right to bring actions for past and future infringement. This grant and assignment may be confirmed in a form\nacceptable to Party-1.\n(c) Securing Rights. Party-2 acknowledges and agrees to take all appropriate steps at the request of Party-1, to secure for Party-1 the rights and benefits of\nParty-1 in and to the Employee Developments, to protect Party-1's rights in the Employee Developments, and to appoint Party-1 as Party-2's attorney-in-fact to\nenable Party-1 to record, file and prosecute any application for, and acquire, maintain and enforce, any intellectual property and proprietary rights and any other\nrights in the Employee Developments throughout the universe in all languages and in all media and forms of expression and communication now or later\ndeveloped. Party-2 agrees to waive any and all rights of attribution and integrity Party-2 may have in any of the Employee Developments under Section 17 U.S .C .\n§203 of the United States copyright Laws and any right of privacy or publicity for the Employee Developments identified for all uses as stated and contemplated.\n(d) Ownership. (i) Supplied Tools. Party-1 retains the exclusive ownership interest in all tools, materials, software, hardware, and any other equipment or supplies\nthat Party-1 may provide to Party-2 during Party-2's employment with Party-1 ("Supplied Tools"), and Party-2 acknowledges Party-1's exclusive ownership\ninterest in the Supplied Tools and agrees not to contest such interest. (ii) Limited Use. Party-2 may use the Supplied Tools only to perform Party-2's job\nresponsibilities during the Term. (iii) Disclosures. Party-2 agrees to disclose in writing to Party-1 , and comply with all Party-1 policies and procedures pertaining\nto, all Employee Developments.\n(e) Application for Waiver. Party-2 may apply to the chief executive officer of Party-1 from time to time for a waiver from Party-2's grant and assignment\nobligations for the Employee Developments. In deciding whether or not to grant such a waiver, Party-1 shall reasonably consider the following factors, any one of\nwhich may or may not be dispositive, but the decision to grant such a waiver is entirely within Party-1's discretion: (i) Whether any Supplied Tools, facility, or\nConfidential Information of Party-1 was used in developing the Employee Developments; (ii) Whether the Employee Developments were developed entirely\noutside of Party-2's job responsibilities; (iii) Whether the Employee Developments relate directly to Party-1's business; (iv) Whether the Employee Developments\nrelate to Party-1's actual or demonstrably anticipated research or development; and/or (v) Whether the Employee Developments result from any work performed\nby Party-2 for Party-1 .\n(f) Background Developments. (i) Applicability. Party-2 may provide certain Developments, created prior to the Term and Party-2's employment with Party-1,\nwhich underlie, pertain to, are embodied by or become embodied in any Employee Developments ("Background Developments"). (ii) License to Background\nDevelopments. However, in the event that any Employee Developments and any other Developments that incorporate elements which are Background\nDevelopments, Party-2 hereby grants and agrees to grant to Party-1, free and clear of an liens, claims or encumbrances, an irrevocable, perpetual, non -exclusive,\nworldwide, transferable, fully-paid up, royalty-free license in the Background Developments to permit Party-1 to exercise the rights, in both print and electronic\nformat, and any other format, to make, use, sell, have made and manufactured, have sold, offer for sale, design, reproduce, make derivative works from, publicly\ndisplay, publicly perform, and publicly distribute the Background Developments, as well as any new designs or derivations of the Background Developments,\nincluding, but not limited to, any and all moral rights of attribution and integrity, and to otherwise exploit all Background Developments. Party-2 has listed below\nthe only Background Developments that are or might be incorporated into the Employee Developments and any obligations owed to third parties regarding the\nBackground Developments (failure to list indicates there are none):\n3\n6. TERM AND SURVIVAL.\n(a) Term. The term of this Agreement (the "Term") commences on the Effective Date and ends at the end of Party-2's employment with Party-1.\n(b) Survival. The following captioned sections survive any termination, expiration or non-renewal of this Agreement: "Nondisclosure and Uses" (only for purposes\nof complying with Section 3.3.5 (Return of Confidential Information) and only for thirty (30) days or such longer period as necessary to comply with the Retention\nRequirements, also, if any personnel of a receiving party retains in their memory any specific contents of a disclosing party's Confidential Information, such\nspecific contents may not ever be disclosed to any third parties except under "Disclosures Required by Law"), "Return of Confidential Information", "Disclosures\nRequired by Law", "Survival", and "General". "Non-Competition" and "Non-Solicitation" survive for the length time stated therein.\n7. GENERAL .\nEntire Agreement and Amendments. This Agreement is the entire agreement between the parties and supersedes all earlier and simultaneous agreements\nregarding the subject matter, including, without limitation, any invoices, business forms, purchase orders, proposals or quotations. This Agreement may be\namended only in a written document, signed by both parties. Independent Contractors, Third Party Beneficiaries, and Subcontractors. The parties acknowledge\nthat they are independent contractors under this Agreement, and except if expressly stated otherwise, none of the parties, nor any of their employees or agents,\nhas the power or authority to bind or obligate another party. Except if expressly stated, no third party is a beneficiary of this Agreement. Party-1 may not\nsubcontract any obligation under this Agreement without Party-2's prior written consent. Party-2 can subcontract without Party-1's consent. Each party is\nresponsible for its subcontractors' compliance with and breach of this Agreement as if the subcontractors' acts and omissions were the party's own. Governing\nLaw and Forum. All claims regarding this Agreement are governed by and construed in accordance with the Laws of Colorado, applicable to contracts wholly\nmade and performed in such jurisdiction, except for any choice or conflict of Law principles, and must be litigated in Colorado, regardless of the inconvenience of\nthe forum, except that a party may seek temporary injunctive relief in any venue of its choosing. The parties acknowledge and agree that the United Nations\nConvention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Assignment. This Agreement binds and\ninures to the benefit of the parties' successors and assigns. This Agreement is not assignable, delegable, sublicenseable or otherwise transferable by any party in\nwhole or in part without the prior written consent of the other party (or parties). Any transfer, assignment, delegation or sublicense by a party without such prior\nwritten consent is invalid. However, any party may assign this Agreement to a third party purchasing: (a) majority control of the party's equity shares; or (b) all or\nsubstantially all of either (i) a party's assets or (ii) the assets of the party's relevant business unit under this Agreement. No Waivers, Cumulative Remedies. A\nparty's failure to insist upon strict performance of any provision of this Agreement is not a waiver of any of its rights under this Agreement. Except if expressly\nstated otherwise, all remedies under this Agreement, at Law or in equity, are cumulative and nonexclusive.\nSeverability. If any portion of this Agreement is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect the original\nintent of the parties, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and\njurisdictions.\nNotices. All notices, including notices of address changes, under this Agreement must be sent by registered or certified mail or by overnight commercial delivery\nto the address set forth in this Agreement by each party.\nCaptions and Plural Terms.\nAll captions are for purposes of convenience only and are not to be used in interpretation or enforcement of this Agreement. Terms defined in the singular have\nthe same meaning in the plural and vice versa.\nIN WITNESS WHEREOF, the parties execute this Agreement as of the Effective Date. Each person who signs this Agreement below represents that such person\nis fully authorized to sign this Agreement on behalf of the applicable party.\nROBERT A. NEWSON\nNAME:\nFOR:\n4
+2f9077637a572fb939dfc6e8b08c4ad8.pdf	effective_date jurisdiction party	EX-10 .30 6 tazoteascontract1030.txt DISTRIBUTION AGREEMENT TAZO EXHIBIT B CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT 1.\nPARTIES. This Agreement is between Tazo Tea Company ("TAZO") and MASTER DISTRIBUTORS, INC . dba Atlantic Beverage Company ("COMPANY"), each\nhaving the address set forth below. 2. BACKGROUND AND PURPOSE OF DISCLOSURE . COMPANY and TAZO are evaluating or are engaged in a business\nrelationship (the "Project(s)"), during which TAZO may disclose to COMPANY certain valuable confidential and proprietary information. 3 . DESCRIPTION OF\nCONFIDENTIAL INFORMATION. TAZO's interest in the Project and the fact that the parties are working together on the Project is confidential information.\nUnless such information falls within the exceptions set forth below, any and all information disclosed by TAZO which by its nature is generally considered\nproprietary and confidential, disclosed in any manner and regardless of whether such information is specifically labeled as such, also is considered confidential\ninformation (hereinafter any and all such information shall be collectively referred to as "Confidential Information"). 4. AGREEMENT TO MAINTAIN\nCONFIDENTIALITY. COMPANY agrees to hold any Confidential Information disclosed to it in confidence, to cause its employees, agents or other third parties to\nhold such Confidential Information in confidence, and to use the same standard of care used to protect its own proprietary and confidential information in\nprotecting the Confidential Information. COMPANY shall not disclose Confidential Information to others or use it for purposes other than the Project. 5. LIMITED\nDISCLOSURE. COMPANY agrees to limit disclosure of Confidential Information to those employees or agents necessary for the Project who have agreed to be\nbound by the obligations herein. 6 . EFFECTIVE DATE AND LENGTH OF OBLIGATION . This Agreement is effective as of the last date of execution by both\nparties and may only be terminated by either party upon written notice following the termination of the parties' Distributorship Agreement to which this Agreement\nis attached. COMPANY's obligation of confidentiality and non-use for Confidential Information hereunder shall last for five (5) years from the date of such written\nnotice. 7. SECURITIES LAWS . COMPANY hereby acknowledges that it is aware, and agrees that it will advise all of those persons who are involved in the\nProject that is the subject of this Agreement, that federal and state securities laws prohibit any person who has received material, non-public information\n(information about TAZO, its parent company, Starbucks Corporation ("STARBUCKS") or their businesses that is not generally available to the public) concerning\nTAZO or STARBUCKS, including, without limitation, the matters that are the subject of this Agreement, from purchasing or selling securities of STARBUCKS\nwhile in possession of such non-public information, and from communicating that information to any other person who may purchase or sell securities of\nSTARBUCKS or otherwise violate such laws. COMPANY specifically acknowledges these obligations and agrees to be bound thereto. 8. EXCEPTIONS TO\nCONFIDENTIAL INFORMATION. Confidential Information shall not include any information which (a) was publicly available at the time of disclosure; (b) became\npublicly available after disclosure without breach of this Agreement by the COMPANY; (c) was in COMPANY's possession prior to disclosure, as evidenced by\nCOMPANY's written records, and was not the subject of an earlier confidential relationship with TAZO; (d) was rightfully acquired by COMPANY after disclosure\nby TAZO from a third party who was lawfully in possession of the information and was under no obligation to TAZO to maintain its confidentiality; (e) is\nindependently developed by COMPANY's employees or agents who have not had access to the Confidential Information; or (f) is required to be disclosed by the\nCOMPANY pursuant to judicial order or other compulsion of law, provided that COMPANY shall provide to TAZO prompt notice of such order and comply with\nany protective order imposed on such disclosure. 9. RETURN OF CONFIDENTIAL INFORMATION . At any time requested by TAZO, COMPANY shall return or\ndestroy all documents, samples or other materials embodying Confidential Information, shall retain no copies thereof, and shall certify in writing that such\ndestruction or return has been accomplished. 10. DISCLAIMER OF OTHER RELATIONSHIPS . This Agreement does not create a relationship of agency,\npartnership, joint venture or license between the parties. 11 . BREACH. If COMPANY breaches any term of this Agreement, TAZO shall have the right to (a)\nterminate this Agreement and/or demand the immediate return of all Confidential Information; (b) recover its actual damages incurred by reason of such breach,\nincluding, without limitation, its attorneys fees and costs of suit; (c) obtain injunctive relief to prevent such breach or to otherwise enforce the terms of this\nAgreement; and (d) pursue any other remedy available at law or in equity. Failure to properly demand compliance or performance of any term of this Agreement\nshall not constitute a waiver of TAZO's rights hereunder. 12. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the\nlaws of the state of Oregon, without reference to conflicts of law principles. The parties hereby submit and consent to the jurisdiction of the federal and state\ncourts of Multnomah County, Oregon, for purposes of any legal action arising out of this Agreement. 13. AMENDMENTS . This Agreement is made a part of and\nsubject to the provisions of the parties' Distributorship Agreement to which it is attached and all previous agreements between the parties regarding the\nConfidential Information are superceded by that Agreement and cannot be canceled, assigned or modified except as provided therein. MASTER\nDISTRIBUTORS, INC . dba Atlantic Beverage Co. (Company Name) Signature /s/ [ILLEGIBLE] -------------------------------------------------- Title Vice President\n-------------------------------------------------- Address8106StaytonDr. -------------------------------------------------- Jessup, MD20794\n-- --- -- --- -- --- -- --- -- -- --- -- --- -- --- -- --- -- --- -- --- -- -- --- - Date -------------------------------------------------------- TAZO TEA COMPANY Signature /s/ Tom Clemente\n-- --- -- --- -- --- -- --- -- -- --- -- --- -- --- -- --- -- --- -- - Title V.P . of Sales -------------------------------------------------- Address P.O. Box 66 --------------------------------------------------\nPortland, OR 97201 --- -- --- -- -- --- -- --- -- --- -- --- -- --- -- --- -- -- --- -- --- -- --- -- - Date 12/9/02 --------------------------------------------------------	EX-10.30 6 tazoteascontract1030.txt DISTRIBUTION AGREEMENT TAZO EXHIBIT B CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT 1.\nPARTIES. This Agreementis between Tazo Tea Company ("TAZO") and MASTER DISTRIBUTORS, INC. dba Atlantic Beverage Company ("COMPANY"), each\nhaving Ihe address set forth below. 2. BACKGROUND AND PURPOSE OF DISCLOSURE. COMPANY and TAZO are evaluating or are engaged in a business\nrelationship (Ihe "Project(s)"), during which TAZO may disclose to COMPANY certain valuable confidential and proprietary information. 3. DESC RIPTION OF\nCONFIDENTIAL IN FORMATION. TAZO's interest in Ihe Project and the fact Ihatthe parties are working together on the Project is confidential information.\nUnless such information falls wilhin Ihe exceptions set forlh below, any and all information disclosed by TAZO which by its nature is generally considered\nproprietary and confidential, disclosed in any manner and regardless of whether such information is specifically labeled as such, also is considered confidential\ninformation (hereinafter any and all such information shall be collectively referred to as "Confidential Information"). 4. AG RE E ME NT TO MAINTAIN\nCONFIDENTIALITY. COMPANY agrees to hold any Confidential Information disclosed to it in confidence, to cause its employees, agents or other Ihird parties to\nhold such Confidential Information in confidence, and to use the same standard ofcare used to protect its own proprietary and confidential information in\nprotecting Ihe Confidential Information. COMPANY shall notdisclose Confidential Information to others or use it for purposes other Ihan the Project. 5. LIMITE D\nDISCLOSURE. COMPANY agrees to limitdisclosure ofConfidential Information to Ihose employees or agenIs necessary forthe Projectwho have agreed to be\nbound by the obligations herein. 6. EFFECTIVE DATE AND LENGTH OF OBLIGATION. This Agreement is effective as of the lastdate ofexecution by both\nparties and may only be terminated by eilher party upon written notice following the termination of Ihe parties' Distributorship Agreementto which this Agreement\nis attached. COMPANY's obligation of confidentiality and non-use for Confidential Information hereunder shall lastfor five (5) years from the date ofsuch written\nnotice. 7. SECURITIES LAWS. COMPANY hereby acknowledges that it is aware, and agrees that itwill advise all oflhose persons who are involved in the\nProject Ihat is Ihe subject of this Agreement, that federal and state securities laws prohibit any person who has received material, non-public information\n(information aboutTAZO, its parentcompany, Starbucks Corporation ("STARBUC KS") or their businesses Ihat is not generally available to the public) concerning\nTAZO or STAR BUC KS, including, without limitation, Ihe matters Ihat are the subjectofthis Agreement, from purchasing or selling securities of STAR BUC KS\nwhile in possession ofsuch non-public information, and from communicating Ihat information to any other person who may purchase or sell securities of\nSTARBUCKS or othenNise violate such laws. COMPANY specifically acknowledges these obligations and agrees to be bound thereto. 8. EXC EPTIONS TO\nCONFIDENTIAL IN FORMATION. Confidential Information shall not include any information which (a) was publicly available at the time ofdisclosure; (b) became\npublicly available after disclosure wilhout breach of this Agreement by the COMPANY; (c) was in COMPANY's possession prior to disclosure, as evidenced by\nCOMPANY's written records, and was not Ihe subjectof an earlier confidential relationship wilh TAZO; (d) was rightfully acquired by COMPANY after disclosure\nby TAZO from a Ihird party who was lawfully in possession of the information and was under no obligation to TAZO to maintain iIs confidentiality; (e) is\nindependently developed by COMPANY's employees or agenIs who have not had access to Ihe Confidential Information; or (f) is required to be disclosed by the\nCOMPANY pursuant to judicial order or other compulsion of law, provided that COMPANY shall provide to TAZO prompt notice ofsuch order and comply with\nany protective order imposed on such disclosure. 9. RETURN OF CONFIDE NTIAL INFORMATION. At any time requested by TAZO, COMPANY shall return or\ndestroy all documents, samples or other materials embodying Confidential Information, shall retain no copies thereof, and shall certify in writing thatsuch\ndestruction or return has been accomplished. 10. DISC LAIME R OF OTHER RE LATIONSHIPS. This Agreementdoes notcreate a relationship of agency,\npartnership, joint venture or license between Ihe parties. 11. BREACH. IfCOMPANY breaches any term oflhis Agreement, TAZO shall have the rightto (a)\nterminate Ihis Agreement and/or demand the immediate return of all Confidential Information; (b) recover its actual damages incurred by reason ofsuch breach,\nincluding, without limitation, iIs attorneys fees and costs ofsuit; (c) obtain injunctive reliefto prevent such breach or to othenNise enforce the terms ofthis\nAgreement; and (d) pursue any other remedy available at law or in equity. Failure to properly demand compliance or performance of any term of this Agreement\nshall not constitute a waiver ofTAZO's righIs hereunder. 12. GOVE RNING LAW. This Agreement shall be governed by and construed in accordance with the\nlaws of Ihe state ofOregon, without reference to conflicts of law principles. The parties hereby submit and consent to Ihe jurisdiction of Ihe federal and state\ncourIs of Multnomah County, Oregon, for purposes of any legal action arising outofthis Agreement. 13. AMEN DMENTS. This Agreement is made a partof and\nsubjectto the provisions of the parties' Distributorship Agreementto which it is attached and all previous agreemenIs between the parties regarding Ihe\nConfidential Information are superceded by thatAgreement and cannot be canceled, assigned or modified except as provided therein. MASTE R\nDISTRIBUTORS, INC. dba AUantic Beverage Co. (Company Name) Signature /s/ [ILLEGIBLE] -------------------------------------------------- Tine Vice President\nAddress 8106 Stayton Dr. -------------------------------------------------- Jessup, MD 20794\n-- TAZO TEA COMPANY Signature /s/Tom Clemente\nTine VP. of Sales -------------------------------------------------- Address P .O. Box 66 --------------------------------------------------\n   \n	EX-10.30 6 tazoteascontract1030.txt DISTRIBUTION AGREEMENT TAZO EXHIBIT B CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT 1.\nPARTIES. This Agreement is between Tazo Tea Company ("TAZO") and MASTER DISTRIBUTORS, INC. dba Atlantic Beverage Company ("COMPANY"), each\nhaving the address set forth below 2. BACKGROUND AND PURPOSE OF DISCLOSURE. COMPANY and TAZO are evaluating or are engaged in a business\nrelationship (the "Project(s)"), during which TAZO may disclose to COMPANY certain valuable confidential and proprietary information. 3. DESCRIPTION OF\nCONFIDENTIAL INFORMATION. TAZO's interest in the Project and the fact that the parties are working together on the Project is confidential information.\nUnless such information falls within the exceptions set forth below, any and all information disclosed by TAZO which by its nature is generally considered\nproprietary and confidential, disclosed in any manner and regardless of whether such information is specifically labeled as such, also is considered confidential\ninformation (hereinafter any and all such information shall be collectively referred to as "Confidential Information"). 4. AGREEMENT TO MAINTAIN\nCONFIDENTIALITY. COMPANY agrees to hold any Confidential Information disclosed to it in confidence, to cause its employees, agents or other third parties to\nhold such Confidential Information in confidence, and to use the same standard of care used to protect its own proprietary and confidential information in\nprotecting the Confidential Information. COMPANY shall not disclose Confidential Information to others or use it for purposes other than the Project. 5. LIMITED\nDISCLOSURE. COMPANY agrees to limit disclosure of Confidential Information to those employees or agents necessary for the P roject who have agreed to be\nbound by the obligations herein. 6. EFFECTIVE DATE AND LENGTH OF OBLIGATION. This Agreement is effective as of the last date of execution by both\nparties and may only be terminated by either party upon written notice following the termination of the parties' Distributorship Agreement to which this Agreement\nis\nattached. COMPANY'S obligation of confidentiality and non-use for Confidential Information hereunder shall last for five (5) years from the date of such written\nnotice. 7. SECURITIES LAWS. COMPANY hereby acknowledges that it is aware, and agrees that it will advise all of those persons who are involved in the\nProject that is the subject of this Agreement, that federal and state securities laws prohibit any person who has received material, non-public information\n(information about TAZO, its parent company, Starbucks Corporation ("STAR BUCKS") or their businesses that is not generally available to the public) concerning\nTAZO or STARBUCKS including, without limitation, the matters that are the subject of this Agreement, from purchasing or selling securities of STARBUCKS\nwhile in possession of such non-public information, and from communicating that information to any other person who may purchase or sell securities of\nSTARBUCKS or otherwise violate such laws. COMPANY specifically acknowledges these obligations and agrees to be bound thereto. 8. EXCEPTIONS TO\nCONFIDENTIAL INFORMATION. Confidentia Information shall not include any information which (a) was publicly available at the time of disclosure; (b) became\npublicly available after disclosure without breach of this Agreement by the COMPANY; (c) was in COMPANY'S possession prior to disclosure, as evidenced by\nCOMPANY'S written records, and was not the subject of an earlier confidential relationship with TAZO; (d) was rightfully acquired by COMPANY after disclosure\nby TAZO from a third party who was lawfully in possession of the information and was under no obligation to TAZO to maintain its confidentiality; (e) is\nindependently developed by COMPANY'S employees or agents who have not had access to the Confidential Information; or (f) is required to be disclosed by the\nCOMPANY pursuant to judicial order or other compulsion of law, provided that COMPANY shall provide to TAZO prompt notice of such order and comply with\nany protective order imposed on such disclosure. 9. ETURN OF CONFIDENTIAL INFORMATION. At any time requested by TAZO, COMPANY shall return or\ndestroy all documents, samples or other materials embodying Confidential Information, shall retain no copies thereof, and shall certify in writing that such\ndestruction or return has been accomplished. 10. ISCLAIMER OF OTHER RELATIONSHIPS. This Agreement does not create a relationship of agency,\npartnership, joint venture or license between the parties. 11. BREACH. If COMPANY breaches any term of this Agreement, TAZO shall have the right to (a)\nterminate this Agreement and/or demand the immediate return of all Confidential Information; (b) recover its actual damages incurred by reason of such breach,\nincluding, without limitation, its attorneys fees and costs of suit; (c) obtain injunctive relief to prevent such breach or to otherwise enforce the terms of this\nAgreement; and (d) pursue any other remedy available at law or in equity. Failure to properly demand compliance or performance of any term of this Agreement\nshall not constitute a waiver of TAZO's rights hereunder. 12. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the\nlaws of the state of Oregon, without reference to conflicts of law principles. The parties hereby submit and consent to the jurisdiction of the federal and state\ncourts of Multnomah County, Oregon, for purposes of any legal action arising out of this Agreement. 13. AMENDMENTS. This Agreement is made a part of and\nsubject to the provisions of the parties' Distributorship Agreement to which it is attached and all previous agreements between the parties regarding the\nConfidential Information are superceded by that Agreement and cannot be canceled, assigned or modified except as provided therein. MASTER\nDISTRIBUTORS, INC dba Atlantic Beverage Co. Company Name) Signature\nTitle Vice President\nAddress 8106 Stayton Dr.\nessup, MD 20794\nDate\nTAZO TEA COMPANY ignature /s/ Tom Clemente\nTitle\nV.P.\nof\nales\nAddress\nP.O.\nBox\n66\nPortland, OR 97201\nDate 12/9/02	EX-10 .30 6 tazoteascontract1030.txt DISTRIBUTION AGREEMENT TAZO EXHIBIT B CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT 1.\nPARTIES. This Agreement is between Tazo Tea Company ("TAZO") and MASTER DISTRIBUTORS, INC . dba Atlantic Beverage Company ("COMPANY"), each\nhaving the address set forth below. 2. BACKGROUND AND PURPOSE OF DISCLOSURE . COMPANY and TAZO are evaluating or are engaged in a business\nrelationship (the "Project(s)"), during which TAZO may disclose to COMPANY certain valuable confidential and proprietary information. 3 . DESCRIPTION OF\nCONFIDENTIAL INFORMATION. TAZO's interest in the Project and the fact that the parties are working together on the Project is confidential information.\nUnless such information falls within the exceptions set forth below, any and all information disclosed by TAZO which by its nature is generally considered\nproprietary and confidential, disclosed in any manner and regardless of whether such information is specifically labeled as such, also is considered confidential\ninformation (hereinafter any and all such information shall be collectively referred to as "Confidential Information"). 4. AGREEMENT TO MAINTAIN\nCONFIDENTIALITY. COMPANY agrees to hold any Confidential Information disclosed to it in confidence, to cause its employees, agents or other third parties to\nhold such Confidential Information in confidence, and to use the same standard of care used to protect its own proprietary and confidential information in\nprotecting the Confidential Information. COMPANY shall not disclose Confidential Information to others or use it for purposes other than the Project. 5. LIMITED\nDISCLOSURE. COMPANY agrees to limit disclosure of Confidential Information to those employees or agents necessary for the Project who have agreed to be\nbound by the obligations herein. 6 . EFFECTIVE DATE AND LENGTH OF OBLIGATION . This Agreement is effective as of the last date of execution by both\nparties and may only be terminated by either party upon written notice following the termination of the parties' Distributorship Agreement to which this Agreement\nis attached. COMPANY's obligation of confidentiality and non-use for Confidential Information hereunder shall last for five (5) years from the date of such written\nnotice. 7. SECURITIES LAWS . COMPANY hereby acknowledges that it is aware, and agrees that it will advise all of those persons who are involved in the\nProject that is the subject of this Agreement, that federal and state securities laws prohibit any person who has received material, non-public information\n(information about TAZO, its parent company, Starbucks Corporation ("STARBUCKS") or their businesses that is not generally available to the public) concerning\nTAZO or STARBUCKS, including, without limitation, the matters that are the subject of this Agreement, from purchasing or selling securities of STARBUCKS\nwhile in possession of such non-public information, and from communicating that information to any other person who may purchase or sell securities of\nSTARBUCKS or otherwise violate such laws. COMPANY specifically acknowledges these obligations and agrees to be bound thereto. 8. EXCEPTIONS TO\nCONFIDENTIAL INFORMATION. Confidential Information shall not include any information which (a) was publicly available at the time of disclosure; (b) became\npublicly available after disclosure without breach of this Agreement by the COMPANY; (c) was in COMPANY's possession prior to disclosure, as evidenced by\nCOMPANY's written records, and was not the subject of an earlier confidential relationship with TAZO; (d) was rightfully acquired by COMPANY after disclosure\nby TAZO from a third party who was lawfully in possession of the information and was under no obligation to TAZO to maintain its confidentiality; (e) is\nindependently developed by COMPANY's employees or agents who have not had access to the Confidential Information; or (f) is required to be disclosed by the\nCOMPANY pursuant to judicial order or other compulsion of law, provided that COMPANY shall provide to TAZO prompt notice of such order and comply with\nany protective order imposed on such disclosure. 9. RETURN OF CONFIDENTIAL INFORMATION . At any time requested by TAZO, COMPANY shall return or\ndestroy all documents, samples or other materials embodying Confidential Information, shall retain no copies thereof, and shall certify in writing that such\ndestruction or return has been accomplished. 10. DISCLAIMER OF OTHER RELATIONSHIPS . This Agreement does not create a relationship of agency,\npartnership, joint venture or license between the parties. 11 . BREACH. If COMPANY breaches any term of this Agreement, TAZO shall have the right to (a)\nterminate this Agreement and/or demand the immediate return of all Confidential Information; (b) recover its actual damages incurred by reason of such breach,\nincluding, without limitation, its attorneys fees and costs of suit; (c) obtain injunctive relief to prevent such breach or to otherwise enforce the terms of this\nAgreement; and (d) pursue any other remedy available at law or in equity. Failure to properly demand compliance or performance of any term of this Agreement\nshall not constitute a waiver of TAZO's rights hereunder. 12. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the\nlaws of the state of Oregon, without reference to conflicts of law principles. The parties hereby submit and consent to the jurisdiction of the federal and state\ncourts of Multnomah County, Oregon, for purposes of any legal action arising out of this Agreement. 13. AMENDMENTS . This Agreement is made a part of and\nsubject to the provisions of the parties' Distributorship Agreement to which it is attached and all previous agreements between the parties regarding the\nConfidential Information are superceded by that Agreement and cannot be canceled, assigned or modified except as provided therein. MASTER\nDISTRIBUTORS, INC . dba Atlantic Beverage Co. (Company Name) Signature /s/ [ILLEGIBLE] -------------------------------------------------- Title Vice President\n-------------------------------------------------- Address8106StaytonDr. -------------------------------------------------- Jessup, MD20794\n-- --- -- --- -- --- -- --- -- -- --- -- --- -- --- -- --- -- --- -- --- -- -- --- - Date -------------------------------------------------------- TAZO TEA COMPANY Signature /s/ Tom Clemente\n-- --- -- --- -- --- -- --- -- -- --- -- --- -- --- -- --- -- --- -- - Title V.P . of Sales -------------------------------------------------- Address P.O. Box 66 --------------------------------------------------\nPortland, OR 97201 --- -- --- -- -- --- -- --- -- --- -- --- -- --- -- --- -- -- --- -- --- -- --- -- - Date 12/9/02 --------------------------------------------------------
+310d8f09b2f467f267982174ec014b20.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 8 d110802dex99d3.htm EX-99.(D)(3)\nExhibit (d)(3)\nCONFIDENTIAL\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), dated as of November 16, 2015, is between II-VI\nIncorporated, a Pennsylvania corporation (“II-VI”), and Anadigics, Inc., a Delaware corporation (“Anadigics”), and is entered into to ensure the\nprotection and preservation of the confidential and/or proprietary nature of information that the Parties (as hereinafter defined) contemplate\ndisclosing to one another in connection with certain transactions or other business arrangements under discussion by the Parties, including, but\nnot limited to, business combination transactions, merger transactions, asset sales, stock purchases, consolidations, strategic alliances, joint\nventures, technology transfers, supply and other commercial arrangements and similar transactions or arrangements involving or between the\nParties (any such transaction or arrangement is herein referred to as the “Transaction”).\nAs used in this Agreement, the Party disclosing Confidential Information (as hereinafter defined) is the “Disclosing Party” and the Party\nreceiving the Confidential Information is the “Receiving Party.” Each of II-VI and Anadigics and their respective subsidiaries and affiliates shall\nbe referred to herein individually as a “Party” and collectively as the “Parties.”\nNOW THEREFORE, in reliance upon and in consideration of the following mutual undertakings and agreements and other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, each of the Parties agree as follows:\n1. Confidential Information. For purposes of this Agreement, the term “Confidential Information” shall include the following\ninformation, whether communicated in tangible form, electronically or orally and regardless of whether specifically identified as “proprietary” or\n“confidential”: (i) all business information, plans, tactics or materials of the Parties, including, but not limited to, business plans, practices and\nstrategies, product plans and product roadmaps, employee lists, employee benefit programs, customer lists, market analyses, compilations and\ninformation, pricing policies, financial information or information regarding research and development, engineering, quality assurance,\nregulatory matters, sales and marketing, accounting, legal matters, product resources, supply resources, financing plans, information, plans or\nproposals relating to capital structure, owned or leased assets and liquidity needs, directors, officers, employees, financing sources, customers,\nvendors, strategic partners, stockholders, affiliates, customer contracts or proposals for customer contracts, contracts with vendors or suppliers or\nplans or proposals for strategic alliances or other business relations with third parties; (ii) all trade secrets, technical know-how, formulae,\nmethods, processes, frameworks, ideas, inventions (whether or not patentable), schematics, systems writings, hardware and software designs and\ncode (source and object), product specifications, prototypes, product samples; (iii) all manuals, systems documentation, reports, notes, analyses,\ncompilations,\nstudies, interpretations, correspondence, memoranda or other materials related to any of the items described in clauses (i) and (ii) above; (iv) all\nother written or electronic information which is submitted or disclosed by the Disclosing Party to the Receiving Party hereunder, whether or not\ndesignated by the Disclosing Party as being confidential or proprietary at the time of its first disclosure; and (v) all verbal information which the\nDisclosing Party designates as confidential or proprietary at the time of its first disclosure and thereafter designates as such in a writing delivered\nto the Receiving Party within 30 days after its first disclosure.\n2. Non-Disclosure and Use Restrictions. Each Party shall keep the Confidential Information of the other Party strictly confidential for a\nperiod of two (2) years from the date hereof, except for Confidential Information constituting trade secrets, which each Party shall keep\nconfidential indefinitely, and shall not disclose such Confidential Information to any third parties, other than its Representatives, without the\nprior written consent of the Disclosing Party. Each Party shall use the Confidential Information received from the other Party only for the\npurpose of evaluating, negotiating or consummating the Transaction (including the effects of its consummation), and in no event for any other\ncommercial, business or other purpose or for any other purpose unrelated to the Transaction that is competitively, strategically or otherwise\ndisadvantageous, directly or indirectly, to the Disclosing Party. Each Party represents and warrants that in considering a possible Transaction and\nreviewing the Confidential Information, such Party (i) is acting solely on its own behalf and not as part of a group with any unaffiliated parties,\nand (ii) has not entered into any exclusivity arrangements with any potential providers of debt or related financing for a possible Transaction that\nwould preclude such providers from providing debt or related financing to any other parties proposing to enter into a transaction with either Party\nreasonably comparable to the Transaction. No other rights, and particularly licenses, to trademarks, inventions, copyrights, patents, mask work\nrights, or any other intellectual property rights are implied or granted under this Agreement or by the delivery of Confidential Information by one\nParty to the other Party.\n3. Copying. Confidential Information supplied by one Party shall not be reproduced by the other Party in any form except to the extent\nreasonably necessary to enable such other Party to evaluate the Transaction.\n4. Care. The Receiving Party shall treat Confidential Information of the Disclosing Party as proprietary and confidential and shall use the\nsame degree of care to avoid disclosure or unauthorized use of Confidential Information of the Disclosing Party as the Receiving Party provides\nto protect its own Confidential Information. The Receiving Party shall maintain the Confidential Information received from the Disclosing Party\nin confidence and shall retain such Confidential Information in a secure place. The Receiving Party shall disclose and permit access to such\nConfidential Information only to those of its directors, officers, employees, affiliates, agents and legal, financial and accounting advisors (in each\nsuch case, a “Representative”) who reasonably need to know such information in order to evaluate the Transaction and with whom the\nReceiving Party has established practices or procedures to maintain the confidence of such Confidential Information, who are informed of the\nconfidential and proprietary nature of such information and the provisions of this Agreement, and who agree to be bound by the provisions\nhereof. The Receiving Party shall be responsible for any breach of the provisions of this Agreement by any of its Representatives.\n5. Ownership. All Confidential Information shall remain the property of the Disclosing Party, and all documents or other tangible or\nelectronic media embodying such Confidential Information (including those prepared by the Receiving Party) shall be, at the option of the\nReceiving Party, either promptly returned to the Disclosing Party or destroyed after the Receiving Party’s need for it has expired or upon the\nrequest of the Disclosing Party. If destroyed, the Receiving Party shall so certify in writing to the Disclosing Party.\n6. Limitation. It is understood that the term “Confidential Information” does not include information that:\n(a) has been published, as evidenced by written documentation, or is now or becomes in the public domain without breach of this\nAgreement by the Receiving Party;\n(b) prior to disclosure hereunder is properly within the legitimate possession of the Receiving Party;\n(c) subsequent to disclosure hereunder is lawfully received from a third party having a right to disclose the information in such party’s\npossession and is not restricted from further disseminating the information; or\n(d) is independently developed by the Receiving Party without using the Confidential Information.\n7. Legally Required Disclosure. If either Party is required by law or by any court of competent authority or governmental agency or\nauthority or in connection with any legal or administrative proceeding to disclose any of the Confidential Information of the other Party, then the\nParty so required to disclose the Confidential Information (the “Requested Party”) will provide such other Party (the “Owning Party”) with\nprompt written notice of such requirement prior to such disclosure. The Owning Party receiving such notice may then either seek appropriate\nprotective relief from all or part of such requirement (including confidential treatment of any such disclosure if required) or waive the Requested\nParty’s compliance with the provisions of this Agreement with respect to all or part of such requirement. Each Party agrees that if it is the\nRequested Party, it will reasonably cooperate with the Owning Party to attempt to obtain any protective relief that the Owning Party chooses to\nseek. If the Owning Party fails to obtain such relief, and, in the opinion of counsel for the Requested Party, the Requested Party is legally\ncompelled to disclose any of the Confidential Information, then the Requested Party may disclose that portion of the Confidential Information\nwhich counsel to such Requested Party advises that it is compelled to disclose, but no more than what is legally required.\n8. Relief. Because monetary damages will not be an adequate remedy for any breach of this Agreement and may be difficult to ascertain,\nthe Parties agree that in the event of a violation of this Agreement, without limiting any other rights and remedies of each other, specific\nperformance and/or other injunctive relief may be obtained against any Party who has breached or threatened to breach this Agreement and that\nsuch Party seeking equitable relief may do so without the necessity to post any bond therefor.\n9. Right to Disclose. Each of the Parties warrants that it has the right to disclose all of the Confidential Information that it previously has\ndisclosed or will disclose to the\nother Party pursuant to this Agreement, and each of the Parties shall indemnify and hold harmless the other Party from all claims by a third party\nrelating to the wrongful disclosure of such third party’s information. Otherwise, neither of the Parties makes any representation or warranty,\nexpress or implied, with respect to any Confidential Information, except as set forth in Section 2 above, or as may be provided in definitive\nagreements, if any, that may be executed after the date hereof in connection with the Transaction or otherwise. Neither of the Parties shall be\nliable for indirect, incidental, consequential or punitive damages of any nature or kind resulting from or arising in connection with this\nAgreement or its violation.\n10. Disclosure. Except as required by law, all media releases and public announcements or disclosures by either of the Parties relating to\nthis Agreement, its subject matter or the purpose of this Agreement shall be coordinated by the Parties in writing prior to the release thereof. It is\nunderstood and agreed that, except in accordance with Section 7 of this Agreement, neither Party shall disclose to any third party (other than its\nRepresentatives) the fact that the Parties are in discussions concerning the Transaction, or the status or terms of such discussions, without the\nprior written consent of the other Party.\n11. Term. This Agreement shall continue in full force and effect for a period of two (2) years from the date hereof and then shall\nautomatically expire and terminate. The obligations of the Parties with respect to Confidential Information and under Section 13, however, shall\ncontinue after the termination of this Agreement.\n12. Right to Continue Activities. Subject to the nondisclosure and use restrictions set forth in this Agreement, each Party’s right to develop,\nuse and market products and services similar to or competitive with those of the other Party shall remain unimpaired. Each Party acknowledges\nthat the other Party may already possess or have developed products or services similar to or competitive with those of the other Party disclosed\nin the Confidential Information.\n13. Access to and Solicitation of Employees.\n(a) Except as otherwise provided in this Section 13(a), II-VI hereby agrees that neither it nor any of its Representatives will, without\nthe express prior written permission of Anadigics, initiate or maintain contact with any officer, director or employee of Anadigics or any of\nits subsidiaries regarding the Confidential Information or the Transaction. II-VI shall submit or direct all communications regarding the\nTransaction and Confidential Information to Ronald Michels, Chairman and Chief Executive Officer of Anadigics or, at Ronald Michels’\ndirection to, Terrence G. Gallagher, Executive Vice President and Chief Financial Officer of Anadigics.\n(b) Each Party agrees that for a period of eighteen (18) months from the date hereof, it will not (and it will not assist, advise or\nencourage others to), directly or indirectly, unless specifically consented to in advance in writing by the other Party, solicit for employment\n(other than advertising or public solicitation that is not a targeted solicitation of the other Party’s employees) (i) any executive officer of the\nother Party, (ii) any officer with the title of Vice President or higher of the other Party to whom the Party was first introduced in the course\nof discussions with respect to the Transaction, (iii) any sales personnel of the other Party, and (iv) any engineering or technical personnel of\nthe other Party.\n14. Governing Law; Whole Agreement. This Agreement shall be governed by and construed under the laws of the State of Delaware\nwithout giving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction. There are no understandings,\nagreements or representations relating to the subject matter hereof, express or implied, not specified herein.\n15. Securities Laws. Each Party hereby acknowledges that it is aware and that it will advise its Representatives who are informed of the\nmatters that are the subject of this Agreement, that the United States securities laws restrict persons with material non-public information about a\ncompany from purchasing or selling securities of such company or from communicating such information to a third party under circumstances in\nwhich it is reasonably foreseeable that such third party is likely to purchase or sell such securities in reliance upon such information.\n16. Amendment and Waiver. The terms and provisions of this Agreement may be amended or modified, and the observance of any term or\nprovision hereof may be waived, only by a written instrument executed by the Parties. No failure or delay by either Party in exercising any right,\npower or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise\nthereof or the exercise of any other right, power or privilege granted hereunder.\n17. Successors and Assigns. This Agreement shall inure to, and be binding upon, the Parties hereto and their respective successors\n(including, without limitation, any successor to a Party) and permitted assigns. Neither Party shall assign this Agreement without the prior\nexpress written consent of the other Party; provided, however, that assignments by operation of law, merger or other change of control transaction\nshall be expressly permitted.\n18. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein\nand supersedes all prior discussions between them whether written or oral, except that that certain existing confidentiality agreement dated\nOctober 23, 2015 shall remain in full force and effect. This Agreement may be modified only in writing, signed by each Party.\n19. Counterparts. This Agreement may be executed in multiple identical counterparts, each of which shall be an original and all of which\nshall be deemed to be one and the same instrument.\n[signatures appear on next page]\n[signature page to Mutual Non-Disclosure Agreement—November 16, 2015]\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.\nII-VI INCORPORATED\nBy: /s/ Francis J. Kramer\nName: Francis J. Kramer\nTitle: Chairman & CEO\nANADIGICS, INC.\nBy: /s/ Ron Michels\nName: Ron Michels\nTitle: Chairman & CEO	EX-99.(D)(3) 8 d110802dex99d3.htm EX-99.(D)(3)\nExhibit (d)(3)\nCONFIDENTIAL\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), dated as of November 16, 2015, is between II-VI\nIncorporated, a Pennsylvania corporation (“II-VI”), and Anadigics, Inc., a Delaware corporation (“Anadigics”), and is entered into to ensure the\nprotection and preservation of the confidential and/or proprietary nature of information that the Parties (as hereinafter defined) contemplate\ndisclosing to one another in connection with certain transactions or other business arrangements under discussion by the Parties, including, but\nnot limited to, business combination transactions, merger transactions, asset sales, stock purchases, consolidations, strategic alliances, joint\nventures, technology transfers, supply and other commercial arrangements and similar transactions or arrangements involving or between the\nParties (any such transaction or arrangement is herein referred to as the “Transaction”).\nAs used in this Agreement, the Party disclosing Confidential Information (as hereinafter defined) is the “Disclosing Party” and the Party\nreceiving the Confidential Information is the “Receiving Party.” Each of II-VI and Anadigics and their respective subsidiaries and affiliates shall\nbe referred to herein individually as a “Party” and collectively as the “Parties.”\nNOW THEREFORE, in reliance upon and in consideration of the following mutual undertakings and agreements and other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, each of the Parties agree as follows:\n1. Confidential Information. For purposes of this Agreement, the term “Confidential Information” shall include the following\ninformation, whether communicated in tangible form, electronically or orally and regardless of whether specifically identified as “proprietary” or\n“confidential”: (i) all business information, plans, tactics or materials of the Parties, including, but not limited to, business plans, practices and\nstrategies, product plans and product roadmaps, employee lists, employee benefit programs, customer lists, market analyses, compilations and\ninformation, pricing policies, financial information or information regarding research and development, engineering, quality assurance,\nregulatory matters, sales and marketing, accounting, legal matters, product resources, supply resources, financing plans, information, plans or\nproposals relating to capital structure, owned or leased assets and liquidity needs, directors, officers, employees, financing sources, customers,\nvendors, strategic partners, stockholders, affiliates, customer contracts or proposals for customer contracts, contracts with vendors or suppliers or\nplans or proposals for strategic alliances or other business relations with third parties; (ii) all trade secrets, technical know-how, formulae,\nmethods, processes, frameworks, ideas, inventions (whether or not patentable), schematics, systems writings, hardware and software designs and\ncode (source and object), product specifications, prototypes, product samples; (iii) all manuals, systems documentation, reports, notes, analyses,\ncompilations,\nstudies, interpretations, correspondence, memoranda or other materials related to any of the items described in clauses (i) and (ii) above; (iv) all\nother written or electronic information which is submitted or disclosed by the Disclosing Party to the Receiving Party hereunder, whether or not\ndesignated by the Disclosing Party as being confidential or proprietary at the time of its first disclosure; and (v) all verbal information which the\nDisclosing Party designates as confidential or proprietary at the time of its first disclosure and thereafter designates as such in a writing delivered\nto the Receiving Party within 30 days after its first disclosure.\n2. Non-Disclosure and Use Restrictions. Each Party shall keep the Confidential Information of the other Party strictly confidential for a\nperiod of two (2) years from the date hereof, except for Confidential Information constituting trade secrets, which each Party shall keep\nconfidential indefinitely, and shall not disclose such Confidential Information to any third parties, other than its Representatives, without the\nprior written consent of the Disclosing Party. Each Party shall use the Confidential Information received from the other Party only for the\npurpose of evaluating, negotiating or consummating the Transaction (including the effects of its consummation), and in no event for any other\ncommercial, business or other purpose or for any other purpose unrelated to the Transaction that is competitively, strategically or otherwise\ndisadvantageous, directly or indirectly, to the Disclosing Party. Each Party represents and warrants that in considering a possible Transaction and\nreviewing the Confidential Information, such Party (i) is acting solely on its own behalf and not as part of a group with any unaffiliated parties,\nand (ii) has not entered into any exclusivity arrangements with any potential providers of debt or related financing for a possible Transaction that\nwould preclude such providers from providing debt or related financing to any other parties proposing to enter into a transaction with either Party\nreasonably comparable to the Transaction. No other rights, and particularly licenses, to trademarks, inventions, copyrights, patents, mask work\nrights, or any other intellectual property rights are implied or granted under this Agreement or by the delivery of Confidential Information by one\nParty to the other Party.\n3. Copying. Confidential Information supplied by one Party shall not be reproduced by the other Party in any form except to the extent\nreasonably necessary to enable such other Party to evaluate the Transaction.\n4. Care. The Receiving Party shall treat Confidential Information of the Disclosing Party as proprietary and confidential and shall use the\nsame degree of care to avoid disclosure or unauthorized use of Confidential Information of the Disclosing Party as the Receiving Party provides\nto protect its own Confidential Information. The Receiving Party shall maintain the Confidential Information received from the Disclosing Party\nin confidence and shall retain such Confidential Information in a secure place. The Receiving Party shall disclose and permit access to such\nConfidential Information only to those of its directors, officers, employees, affiliates, agents and legal, financial and accounting advisors (in each\nsuch case, a “Representative”) who reasonably need to know such information in order to evaluate the Transaction and with whom the\nReceiving Party has established practices or procedures to maintain the confidence of such Confidential Information, who are informed of the\nconfidential and proprietary nature of such information and the provisions of this Agreement, and who agree to be bound by the provisions\nhereof. The Receiving Party shall be responsible for any breach of the provisions of this Agreement by any of its Representatives.\n5. Ownership. All Confidential Information shall remain the property of the Disclosing Party, and all documents or other tangible or\nelectronic media embodying such Confidential Information (including those prepared by the Receiving Party) shall be, at the option of the\nReceiving Party, either promptly returned to the Disclosing Party or destroyed after the Receiving Party’s need for it has expired or upon the\nrequest of the Disclosing Party. If destroyed, the Receiving Party shall so certify in writing to the Disclosing Party.\n6. Limitation. It is understood that the term “Confidential Information” does not include information that:\n(a) has been published, as evidenced by written documentation, or is now or becomes in the public domain without breach of this\nAgreement by the Receiving Party;\n(b) prior to disclosure hereunder is properly within the legitimate possession of the Receiving Party;\n(c) subsequent to disclosure hereunder is lawfully received from a third party having a right to disclose the information in such party’s\npossession and is not restricted from further disseminating the information; or\n(d) is independently developed by the Receiving Party without using the Confidential Information.\n7. Legally Required Disclosure. If either Party is required by law or by any court of competent authority or governmental agency or\nauthority or in connection with any legal or administrative proceeding to disclose any of the Confidential Information of the other Party, then the\nParty so required to disclose the Confidential Information (the “Requested Party”) will provide such other Party (the “Owning Party”) with\nprompt written notice of such requirement prior to such disclosure. The Owning Party receiving such notice may then either seek appropriate\nprotective relief from all or part of such requirement (including confidential treatment of any such disclosure if required) or waive the Requested\nParty’s compliance with the provisions of this Agreement with respect to all or part of such requirement. Each Party agrees that if it is the\nRequested Party, it will reasonably cooperate with the Owning Party to attempt to obtain any protective relief that the Owning Party chooses to\nseek. If the Owning Party fails to obtain such relief, and, in the opinion of counsel for the Requested Party, the Requested Party is legally\ncompelled to disclose any of the Confidential Information, then the Requested Party may disclose that portion of the Confidential Information\nwhich counsel to such Requested Party advises that it is compelled to disclose, but no more than what is legally required.\n8. Relief. Because monetary damages will not be an adequate remedy for any breach of this Agreement and may be difficult to ascertain,\nthe Parties agree that in the event of a violation of this Agreement, without limiting any other rights and remedies of each other, specific\nperformance and/or other injunctive relief may be obtained against any Party who has breached or threatened to breach this Agreement and that\nsuch Party seeking equitable relief may do so without the necessity to post any bond therefor.\n9. Right to Disclose. Each of the Parties warrants that it has the right to disclose all of the Confidential Information that it previously has\ndisclosed or will disclose to the\nother Party pursuant to this Agreement, and each of the Parties shall indemnify and hold harmless the other Party from all claims by a third party\nrelating to the wrongful disclosure of such third party’s information. Otherwise, neither of the Parties makes any representation or warranty,\nexpress or implied, with respect to any Confidential Information, except as set forth in Section 2 above, or as may be provided in definitive\nagreements, if any, that may be executed after the date hereof in connection with the Transaction or otherwise. Neither of the Parties shall be\nliable for indirect, incidental, consequential or punitive damages of any nature or kind resulting from or arising in connection with this\nAgreement or its violation.\n10. Disclosure. Except as required by law, all media releases and public announcements or disclosures by either of the Parties relating to\nthis Agreement, its subject matter or the purpose of this Agreement shall be coordinated by the Parties in writing prior to the release thereof. It is\nunderstood and agreed that, except in accordance with Section 7 of this Agreement, neither Party shall disclose to any third party (other than its\nRepresentatives) the fact that the Parties are in discussions concerning the Transaction, or the status or terms of such discussions, without the\nprior written consent of the other Party.\n11. Term. This Agreement shall continue in full force and effect for a period of two (2) years from the date hereof and then shall\nautomatically expire and terminate. The obligations of the Parties with respect to Confidential Information and under Section 13, however, shall\ncontinue after the termination of this Agreement.\n12. Right to Continue Activities. Subject to the nondisclosure and use restrictions set forth in this Agreement, each Party’s right to develop,\nuse and market products and services similar to or competitive with those of the other Party shall remain unimpaired. Each Party acknowledges\nthat the other Party may already possess or have developed products or services similar to or competitive with those of the other Party disclosed\nin the Confidential Information.\n13. Access to and Solicitation of Employees.\n(a) Except as otherwise provided in this Section 13(a), II-VI hereby agrees that neither it nor any of its Representatives will, without\nthe express prior written permission of Anadigics, initiate or maintain contact with any officer, director or employee of Anadigics or any of\nits subsidiaries regarding the Confidential Information or the Transaction. II-VI shall submit or direct all communications regarding the\nTransaction and Confidential Information to Ronald Michels, Chairman and Chief Executive Officer of Anadigics or, at Ronald Michels’\ndirection to, Terrence G. Gallagher, Executive Vice President and Chief Financial Officer of Anadigics.\n(b) Each Party agrees that for a period of eighteen (18) months from the date hereof, it will not (and it will not assist, advise or\nencourage others to), directly or indirectly, unless specifically consented to in advance in writing by the other Party, solicit for employment\n(other than advertising or public solicitation that is not a targeted solicitation of the other Party’s employees) (i) any executive officer of the\nother Party, (ii) any officer with the title of Vice President or higher of the other Party to whom the Party was first introduced in the course\nof discussions with respect to the Transaction, (iii) any sales personnel of the other Party, and (iv) any engineering or technical personnel of\nthe other Party.\n14. Governing Law; Whole Agreement. This Agreement shall be governed by and construed under the laws of the State of Delaware\nwithout giving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction. There are no understandings,\nagreements or representations relating to the subject matter hereof, express or implied, not specified herein.\n15. Securities Laws. Each Party hereby acknowledges that it is aware and that it will advise its Representatives who are informed of the\nmatters that are the subject of this Agreement, that the United States securities laws restrict persons with material non-public information about a\ncompany from purchasing or selling securities of such company or from communicating such information to a third party under circumstances in\nwhich it is reasonably foreseeable that such third party is likely to purchase or sell such securities in reliance upon such information.\n16. Amendment and Waiver. The terms and provisions of this Agreement may be amended or modified, and the observance of any term or\nprovision hereof may be waived, only by a written instrument executed by the Parties. No failure or delay by either Party in exercising any right,\npower or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise\nthereof or the exercise of any other right, power or privilege granted hereunder.\n17. Successors and Assigns. This Agreement shall inure to, and be binding upon, the Parties hereto and their respective successors\n(including, without limitation, any successor to a Party) and permitted assigns. Neither Party shall assign this Agreement without the prior\nexpress written consent of the other Party; provided, however, that assignments by operation of law, merger or other change of control transaction\nshall be expressly permitted.\n18. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein\nand supersedes all prior discussions between them whether written or oral, except that that certain existing confidentiality agreement dated\nOctober 23, 2015 shall remain in full force and effect. This Agreement may be modified only in writing, signed by each Party.\n19. Counterparts. This Agreement may be executed in multiple identical counterparts, each of which shall be an original and all of which\nshall be deemed to be one and the same instrument.\n[signatures appear on next page]\n[signature page to Mutual Non-Disclosure Agreement—November 16, 2015]\nIN WITNESS WHEREQF, the Parties have executed this Agreement as of the date first above written.\nII-VI INCORPORATED\nBy: /s/ Francis J. Kramer\nName: Francis J. Kramer\nTitle: Chairman & CEO\nANADIGICS, INC.\nBy: /s/ Ron Michels\nName: Ron Michels\nTitle: Chairman & CEO	EX-99.(D)(3) 8 d110802dex99d3.htm EX-99.(D)(3)\nExhibit (d)(3)\nCONFIDENTIAL\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this "Agreement"), dated as of November 16, 2015, is between II-VI\nIncorporated, a Pennsylvania corporation ("II-VI"), and Anadigics, Inc., a Delaware corporation ("Anadigics"), and is entered into to ensure the\nprotection and preservation of the confidential and/or proprietary nature of information that the Parties (as hereinafter defined) contemplate\ndisclosing to one another in connection with certain transactions or other business arrangements under discussion by the Parties, including, but\nnot limited to, business combination transactions, merger transactions, asset sales, stock purchases, consolidations, strategic alliances, joint\nventures, technology transfers, supply and other commercial arrangements and similar transactions or arrangements involving or between the\nParties (any such transaction or arrangement is herein referred to as the "Transaction").\nAs used in this Agreement, the Party disclosing Confidential Information (as hereinafter defined) is the "Disclosing Party" and the Party\nreceiving the Confidential Information is the "Receiving Party." Each of II-VI and Anadigics and their respective subsidiaries and affiliates shall\nbe referred to herein individually as a "Party" and collectively as the "Parties."\nNOW THEREFORE, in reliance upon and in consideration of the following mutual undertakings and agreements and other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, each of the Parties agree as follows:\n1. Confidential Information. For purposes of this Agreement, the term "Confidential Information" shall include the following\ninformation, whether communicated in tangible form, electronically or orally and regardless of whether specifically identified as "proprietary"\nor\n"confidential": (i) all business information, plans, tactics or materials of the Parties, including, but not limited to, business plans, practices and\nstrategies, product plans and product roadmaps, employee lists, employee benefit programs, customer lists, market analyses, compilations and\ninformation, pricing policies, financial information or information regarding research and development, engineering, quality assurance,\nregulatory matters, sales and marketing, accounting, legal matters, product resources, supply resources, financing plans, information, plans or\nproposals relating to capital structure, owned or leased assets and liquidity needs, directors, officers, employees, financing sources, customers,\nvendors, strategic partners, stockholders, affiliates, customer contracts or proposals for customer contracts, contracts with vendors or suppliers\nor\nplans or proposals for strategic alliances or other business relations with third parties; (ii) all trade secrets, technical know-how, formulae,\nmethods, processes, frameworks, ideas, inventions (whether or not patentable), schematics, systems writings, hardware and software designs and\ncode (source and object), product specifications, prototypes, product samples; (iii) all manuals, systems documentation, reports, notes, analyses,\ncompilations,\nstudies, interpretations, correspondence, memoranda or other materials related to any of the items described in clauses (i) and (ii) above; (iv) all\nother written or electronic information which is submitted or disclosed by the Disclosing Party to the Receiving Party hereunder, whether or not\ndesignated by the Disclosing Party as being confidential or proprietary at the time of its first disclosure; and (v) all verbal information which\nthe\nDisclosing Party designates as confidential or proprietary at the time of its first disclosure and thereafter designates as such in a writing delivered\nto the Receiving Party within 30 days after its first disclosure.\n2. Non-Disclosure and Use Restrictions. Each Party shall keep the Confidential Information of the other Party strictly confidential for a\nperiod of two (2) years from the date hereof, except for Confidential Information constituting trade secrets, which each Party shall keep\nconfidential indefinitely, and shall not disclose such Confidential Information to any third parties, other than its Representatives, without\nthe\nprior written consent of the Disclosing Party. Each Party shall use the Confidential Information received from the other Party only for the\npurpose of evaluating, negotiating or consummating the Transaction (including the effects of its consummation), and in no event for any other\ncommercial, business or other purpose or for any other purpose unrelated to the Transaction that is competitively, strategically or otherwise\ndisadvantageous, directly or indirectly, to the Disclosing Party. Each Party represents and warrants that in considering a possible Transaction and\nreviewing the Confidential Information, such Party (i) is acting solely on its own behalf and not as part of a group with any unaffiliated parties,\nand (ii) has not entered into any exclusivity arrangements with any potential providers of debt or related financing for a possible Transaction that\nwould preclude such providers from providing debt or related financing to any other parties proposing to enter into a transaction with either Party\nreasonably comparable to the Transaction. No other rights, and particularly licenses, to trademarks, inventions, copyrights, patents, mask work\nrights, or any other intellectual property rights are implied or granted under this Agreement or by the delivery of Confidential Information by one\nParty to the other Party.\n3. Copying. Confidential Information supplied by one Party shall not be reproduced by the other Party in any form except to the extent\nreasonably necessary to enable such other Party to evaluate the Transaction.\n4. Care. The Receiving Party shall treat Confidential Information of the Disclosing Party as proprietary and confidential and shall use the\nsame degree of care to avoid disclosure or unauthorized use of Confidential Information of the Disclosing Party as the Receiving Party provides\nto\nprotect its own Confidential Information. The Receiving Party shall maintain the Confidential Information received from the Disclosing\nParty\nConfidential in confidence Information and shall retain only such to those Confidentia of its directors, Information officers, in a employees, secure place. affiliates, The Receiving agents and Party legal, shall financial disclose and and accounting permit access advisors to such (in each\nsuch case, a "Representative") who reasonably need to know such information in order to evaluate the Transaction and with whom the\nReceiving Party has established practices or procedures to maintain the confidence of such Confidential Information, who are informed of the\nconfidential and proprietary nature of such information and the provisions of this Agreement, and who agree to be bound by the provisions\nhereof The Receiving Party shall be responsible for any breach of the provisions of this Agreement by any of its Representatives.\n5. Ownership. All Confidential Information shall remain the property of the Disclosing Party, and all documents or other tangible or\nelectronic media embodying such Confidential Information (including those prepared by the Receiving Party) shall be, at the option of the\nReceiving Party, either promptly returned to the Disclosing Party or destroyed after the Receiving Party's need for it has expired or upon the\nrequest of the Disclosing Party. If destroyed, the Receiving Party shall so certify in writing to the Disclosing Party.\n6.\nLimitation. It is understood that the term "Confidential Information" does not include information that:\n(a) has been published, as evidenced by written documentation, or is now or becomes in the public domain without breach of this\nAgreement by the Receiving Party;\n(b) prior to disclosure hereunder is properly within the legitimate possession of the Receiving Party;\n(c) subsequent to disclosure hereunder is lawfully received from a third party having a right to disclose the information in such party's\npossession and is not restricted from further disseminating the information; or\n(d) is independently developed by the Receiving Party without using the Confidential Information.\n7. Legally Required Disclosure. If either Party is required by law or by any court of competent authority or governmental agency or\nauthority\nor\nin\nconnection with any legal or administrative proceeding to disclose any of the Confidentia Information of the other Party, then\nthe\nParty so required to disclose the Confidential Information (the "Requested Party") will provide such other Party (the "Owning Party") with\nprompt written notice of such requirement prior to such disclosure. The Owning Party receiving such notice may then either seek appropriate\nprotective relief from all or part of such requirement (including confidential treatment of any such disclosure if required) or waive the Requested\nParty's compliance with the provisions of this Agreement with respect to all or part of such requirement. Each Party agrees that if it is the\nRequested Party, it will reasonably cooperate with the Owning Party to attempt to obtain any protective relief that the Owning Party chooses\nto\nseek. If the Owning Party fails to obtain such relief, and, in the opinion of counsel for the Requested Party, the Requested Party is legally\ncompelled to disclose any of the Confidential Information, then the Requested Party may disclose that portion of the Confidential Information\nwhich counsel to such Requested Party advises that it is compelled to disclose, but no more than what is legally required.\n8. Relief. Because monetary damages will not be an adequate remedy for any breach of this Agreement and may be difficult to ascertain,\nthe Parties agree that in the event of a violation of this Agreement, without limiting any other rights and remedies of each other, specific\nperformance and/or other injunctive relief may be obtained against any Party who has breached or threatened to breach this Agreement and that\nsuch Party seeking equitable relief may do so without the necessity to post any bond therefor.\n9. Right to Disclose. Each of the Parties warrants that it has the right to disclose all of the Confidential Information that it previously has\ndisclosed or will disclose to the\nother Party pursuant to this Agreement, and each of the Parties shall indemnify and hold harmless the other Party from all claims by a third party\nrelating to the wrongful disclosure of such third party's information. Otherwise, neither of the Parties makes any representation or warranty,\nexpress or implied, with respect to any Confidential Information, except as set forth in Section 2 above, or as may be provided in definitive\nagreements, if any, that may be executed after the date hereof in connection with the Transaction or otherwise. Neither of the Parties shall be\nliable for indirect, incidental, consequential or punitive damages of any nature or kind resulting from or arising in connection with this\nAgreement or its violation.\n10. Disclosure. Except as required by law, all media releases and public announcements or disclosures by either of the Parties relating to\nthis Agreement, its subject matter or the purpose of this Agreement shall be coordinated by the Parties in writing prior to the release thereof.\nIt\nis\nunderstood and agreed that, except in accordance with Section 7 of this Agreement, neither Party shall disclose to any third party (other than its\nRepresentatives) the fact that the Parties are in discussions concerning the Transaction, or the status or terms of such discussions, without the\nprior written consent of the other Party.\n11. Term This Agreement shall continue in full force and effect for a period of two (2) years from the date hereof and then shall\nautomatically expire and terminate. The obligations of the Parties with respect to Confidential Information and under Section 13, however, shall\ncontinue after the termination of this Agreement.\n12. Right to Continue Activities. Subject to the nondisclosure and use restrictions set forth in this Agreement, each Party's right to develop,\nuse and market products and services similar to or competitive with those of the other Party shall remain unimpaired. Each Party acknowledges\nthat the other Party may already possess or have developed products or services similar to or competitive with those of the other Party disclosed\nin the Confidential Information.\n13. Access to and Solicitation of Employees.\n(a) Except as otherwise provided in this Section 13(a), II-VI hereby agrees that neither it nor any of its Representatives will, without\nthe express prior written permission of Anadigics, initiate or maintain contact with any officer, director or employee of Anadigics or any of\nits subsidiaries regarding the Confidential Information or the Transaction. II-VI shall submit or direct all communications regarding the\nTransaction and Confidential Information to Ronald Michels, Chairman and Chief Executive Officer of Anadigics or, at Ronald Michels'\ndirection to, Terrence G. Gallagher, Executive Vice President and Chief Financial Officer of Anadigics.\n(b) Each Party agrees that for a period of eighteen (18) months from the date hereof, it will not (and it will not assist, advise\nor\nencourage others to), directly or indirectly, unless specifically consented to in advance in writing by the other Party, solicit for employment\n(other than advertising or public solicitation that is not a targeted solicitation of the other Party's employees) (i) any executive officer of the\nother Party, (ii) any officer with the title of Vice President or higher of the other Party to whom the Party was first introduced in the course\nof discussions with respect to the Transaction, (iii) any sales personnel of the other Party, and (iv) any engineering or technical personnel of\nthe other Party.\n14. Governing Law; Whole Agreement. This Agreement shall be governed by and construed under the laws of the State of Delaware\nwithout giving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction. There are no understandings,\nagreements or representations relating to the subject matter hereof, express or implied, not specified herein.\n15. Securities Laws. Each Party hereby acknowledges that it is aware and that it will advise its Representatives who are informed of the\nmatters that are the subject of this Agreement, that the United States securities laws restrict persons with material non-public information about a\ncompany from purchasing or selling securities of such company or from communicating such information to a third party under circumstances in\nwhich it is reasonably foreseeable that such third party is likely to purchase or sell such securities in reliance upon such information.\n16. Amendment and Waiver. The terms and provisions of this Agreement may be amended or modified, and the observance of any term or\nprovision hereof may be waived, only by a written instrument executed by the Parties. No failure or delay by either Party in exercising any right,\npower or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise\nthereof or the exercise of any other right, power or privilege granted hereunder.\n17. Successors and Assigns. This Agreement shall inure to, and be binding upon, the Parties hereto and their respective successors\n(including, without limitation, any successor to a Party) and permitted assigns. Neither Party shall assign this Agreement without the prior\nexpress written consent of the other Party; provided, however, that assignments by operation of law, merger or other change of control transaction\nshall be expressly permitted.\n18. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein\nand supersedes all prior discussions between them whether written or oral, except that that certain existing confidentiality agreement dated\nOctober 23, 2015 shall remain in full force and effect. This Agreement may be modified only in writing, signed by each Party.\n19. Counterparts. This Agreement may be executed in multiple identical counterparts, each of which shall be an original and all of which\nshall be deemed to be one and the same instrument.\n[signatures appear on next page]\n[signature page to Mutual Non-Disclosure Agreement-November 16, 2015]\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.\nII-VI INCORPORATED\nBy: /s/ Francis J. Kramer\nName: Francis J. Kramer\nTitle: Chairman & CEO\nANADIGICS, INC.\nBy: /s/ Ron Michels\nName: Ron Michels\nTitle: Chairman & CEO	EX-99.(D)(3) 8 d110802dex99d3.htm EX-99.(D)(3)\nExhibit (d)(3)\nCONFIDENTIAL\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), dated as of November 16, 2015, is between II-VI\nIncorporated, a Pennsylvania corporation (“II-VI”), and Anadigics, Inc., a Delaware corporation (“Anadigics”), and is entered into to ensure the\nprotection and preservation of the confidential and/or proprietary nature of information that the Parties (as hereinafter defined) contemplate\ndisclosing to one another in connection with certain transactions or other business arrangements under discussion by the Parties, including, but\nnot limited to, business combination transactions, merger transactions, asset sales, stock purchases, consolidations, strategic alliances, joint\nventures, technology transfers, supply and other commercial arrangements and similar transactions or arrangements involving or between the\nParties (any such transaction or arrangement is herein referred to as the “Transaction”).\nAs used in this Agreement, the Party disclosing Confidential Information (as hereinafter defined) is the “Disclosing Party” and the Party\nreceiving the Confidential Information is the “Receiving Party.” Each of II-VI and Anadigics and their respective subsidiaries and affiliates shall\nbe referred to herein individually as a “Party” and collectively as the “Parties.”\nNOW THEREFORE, in reliance upon and in consideration of the following mutual undertakings and agreements and other good and\nvaluable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, each of the Parties agree as follows:\n1. Confidential Information. For purposes of this Agreement, the term “Confidential Information” shall include the following\ninformation, whether communicated in tangible form, electronically or orally and regardless of whether specifically identified as “proprietary” or\n“confidential”: (i) all business information, plans, tactics or materials of the Parties, including, but not limited to, business plans, practices and\nstrategies, product plans and product roadmaps, employee lists, employee benefit programs, customer lists, market analyses, compilations and\ninformation, pricing policies, financial information or information regarding research and development, engineering, quality assurance,\nregulatory matters, sales and marketing, accounting, legal matters, product resources, supply resources, financing plans, information, plans or\nproposals relating to capital structure, owned or leased assets and liquidity needs, directors, officers, employees, financing sources, customers,\nvendors, strategic partners, stockholders, affiliates, customer contracts or proposals for customer contracts, contracts with vendors or suppliers or\nplans or proposals for strategic alliances or other business relations with third parties; (ii) all trade secrets, technical know-how, formulae,\nmethods, processes, frameworks, ideas, inventions (whether or not patentable), schematics, systems writings, hardware and software designs and\ncode (source and object), product specifications, prototypes, product samples; (iii) all manuals, systems documentation, reports, notes, analyses,\ncompilations,\nstudies, interpretations, correspondence, memoranda or other materials related to any of the items described in clauses (i) and (ii) above; (iv) all\nother written or electronic information which is submitted or disclosed by the Disclosing Party to the Receiving Party hereunder, whether or not\ndesignated by the Disclosing Party as being confidential or proprietary at the time of its first disclosure; and (v) all verbal information which the\nDisclosing Party designates as confidential or proprietary at the time of its first disclosure and thereafter designates as such in a writing delivered\nto the Receiving Party within 30 days after its first disclosure.\n2. Non-Disclosure and Use Restrictions. Each Party shall keep the Confidential Information of the other Party strictly confidential for a\nperiod of two (2) years from the date hereof, except for Confidential Information constituting trade secrets, which each Party shall keep\nconfidential indefinitely, and shall not disclose such Confidential Information to any third parties, other than its Representatives, without the\nprior written consent of the Disclosing Party. Each Party shall use the Confidential Information received from the other Party only for the\npurpose of evaluating, negotiating or consummating the Transaction (including the effects of its consummation), and in no event for any other\ncommercial, business or other purpose or for any other purpose unrelated to the Transaction that is competitively, strategically or otherwise\ndisadvantageous, directly or indirectly, to the Disclosing Party. Each Party represents and warrants that in considering a possible Transaction and\nreviewing the Confidential Information, such Party (i) is acting solely on its own behalf and not as part of a group with any unaffiliated parties,\nand (ii) has not entered into any exclusivity arrangements with any potential providers of debt or related financing for a possible Transaction that\nwould preclude such providers from providing debt or related financing to any other parties proposing to enter into a transaction with either Party\nreasonably comparable to the Transaction. No other rights, and particularly licenses, to trademarks, inventions, copyrights, patents, mask work\nrights, or any other intellectual property rights are implied or granted under this Agreement or by the delivery of Confidential Information by one\nParty to the other Party.\n3. Copying. Confidential Information supplied by one Party shall not be reproduced by the other Party in any form except to the extent\nreasonably necessary to enable such other Party to evaluate the Transaction.\n4. Care. The Receiving Party shall treat Confidential Information of the Disclosing Party as proprietary and confidential and shall use the\nsame degree of care to avoid disclosure or unauthorized use of Confidential Information of the Disclosing Party as the Receiving Party provides\nto protect its own Confidential Information. The Receiving Party shall maintain the Confidential Information received from the Disclosing Party\nin confidence and shall retain such Confidential Information in a secure place. The Receiving Party shall disclose and permit access to such\nConfidential Information only to those of its directors, officers, employees, affiliates, agents and legal, financial and accounting advisors (in each\nsuch case, a “Representative”) who reasonably need to know such information in order to evaluate the Transaction and with whom the\nReceiving Party has established practices or procedures to maintain the confidence of such Confidential Information, who are informed of the\nconfidential and proprietary nature of such information and the provisions of this Agreement, and who agree to be bound by the provisions\nhereof. The Receiving Party shall be responsible for any breach of the provisions of this Agreement by any of its Representatives.\n5. Ownership. All Confidential Information shall remain the property of the Disclosing Party, and all documents or other tangible or\nelectronic media embodying such Confidential Information (including those prepared by the Receiving Party) shall be, at the option of the\nReceiving Party, either promptly returned to the Disclosing Party or destroyed after the Receiving Party’s need for it has expired or upon the\nrequest of the Disclosing Party. If destroyed, the Receiving Party shall so certify in writing to the Disclosing Party.\n6. Limitation. It is understood that the term “Confidential Information” does not include information that:\n(a) has been published, as evidenced by written documentation, or is now or becomes in the public domain without breach of this\nAgreement by the Receiving Party;\n(b) prior to disclosure hereunder is properly within the legitimate possession of the Receiving Party;\n(c) subsequent to disclosure hereunder is lawfully received from a third party having a right to disclose the information in such party’s\npossession and is not restricted from further disseminating the information; or\n(d) is independently developed by the Receiving Party without using the Confidential Information.\n7. Legally Required Disclosure. If either Party is required by law or by any court of competent authority or governmental agency or\nauthority or in connection with any legal or administrative proceeding to disclose any of the Confidential Information of the other Party, then the\nParty so required to disclose the Confidential Information (the “Requested Party”) will provide such other Party (the “Owning Party”) with\nprompt written notice of such requirement prior to such disclosure. The Owning Party receiving such notice may then either seek appropriate\nprotective relief from all or part of such requirement (including confidential treatment of any such disclosure if required) or waive the Requested\nParty’s compliance with the provisions of this Agreement with respect to all or part of such requirement. Each Party agrees that if it is the\nRequested Party, it will reasonably cooperate with the Owning Party to attempt to obtain any protective relief that the Owning Party chooses to\nseek. If the Owning Party fails to obtain such relief, and, in the opinion of counsel for the Requested Party, the Requested Party is legally\ncompelled to disclose any of the Confidential Information, then the Requested Party may disclose that portion of the Confidential Information\nwhich counsel to such Requested Party advises that it is compelled to disclose, but no more than what is legally required.\n8. Relief. Because monetary damages will not be an adequate remedy for any breach of this Agreement and may be difficult to ascertain,\nthe Parties agree that in the event of a violation of this Agreement, without limiting any other rights and remedies of each other, specific\nperformance and/or other injunctive relief may be obtained against any Party who has breached or threatened to breach this Agreement and that\nsuch Party seeking equitable relief may do so without the necessity to post any bond therefor.\n9. Right to Disclose. Each of the Parties warrants that it has the right to disclose all of the Confidential Information that it previously has\ndisclosed or will disclose to the\nother Party pursuant to this Agreement, and each of the Parties shall indemnify and hold harmless the other Party from all claims by a third party\nrelating to the wrongful disclosure of such third party’s information. Otherwise, neither of the Parties makes any representation or warranty,\nexpress or implied, with respect to any Confidential Information, except as set forth in Section 2 above, or as may be provided in definitive\nagreements, if any, that may be executed after the date hereof in connection with the Transaction or otherwise. Neither of the Parties shall be\nliable for indirect, incidental, consequential or punitive damages of any nature or kind resulting from or arising in connection with this\nAgreement or its violation.\n10. Disclosure. Except as required by law, all media releases and public announcements or disclosures by either of the Parties relating to\nthis Agreement, its subject matter or the purpose of this Agreement shall be coordinated by the Parties in writing prior to the release thereof. It is\nunderstood and agreed that, except in accordance with Section 7 of this Agreement, neither Party shall disclose to any third party (other than its\nRepresentatives) the fact that the Parties are in discussions concerning the Transaction, or the status or terms of such discussions, without the\nprior written consent of the other Party.\n11. Term. This Agreement shall continue in full force and effect for a period of two (2) years from the date hereof and then shall\nautomatically expire and terminate. The obligations of the Parties with respect to Confidential Information and under Section 13, however, shall\ncontinue after the termination of this Agreement.\n12. Right to Continue Activities. Subject to the nondisclosure and use restrictions set forth in this Agreement, each Party’s right to develop,\nuse and market products and services similar to or competitive with those of the other Party shall remain unimpaired. Each Party acknowledges\nthat the other Party may already possess or have developed products or services similar to or competitive with those of the other Party disclosed\nin the Confidential Information.\n13. Access to and Solicitation of Employees.\n(a) Except as otherwise provided in this Section 13(a), II-VI hereby agrees that neither it nor any of its Representatives will, without\nthe express prior written permission of Anadigics, initiate or maintain contact with any officer, director or employee of Anadigics or any of\nits subsidiaries regarding the Confidential Information or the Transaction. II-VI shall submit or direct all communications regarding the\nTransaction and Confidential Information to Ronald Michels, Chairman and Chief Executive Officer of Anadigics or, at Ronald Michels’\ndirection to, Terrence G. Gallagher, Executive Vice President and Chief Financial Officer of Anadigics.\n(b) Each Party agrees that for a period of eighteen (18) months from the date hereof, it will not (and it will not assist, advise or\nencourage others to), directly or indirectly, unless specifically consented to in advance in writing by the other Party, solicit for employment\n(other than advertising or public solicitation that is not a targeted solicitation of the other Party’s employees) (i) any executive officer of the\nother Party, (ii) any officer with the title of Vice President or higher of the other Party to whom the Party was first introduced in the course\nof discussions with respect to the Transaction, (iii) any sales personnel of the other Party, and (iv) any engineering or technical personnel of\nthe other Party.\n14. Governing Law; Whole Agreement. This Agreement shall be governed by and construed under the laws of the State of Delaware\nwithout giving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction. There are no understandings,\nagreements or representations relating to the subject matter hereof, express or implied, not specified herein.\n15. Securities Laws. Each Party hereby acknowledges that it is aware and that it will advise its Representatives who are informed of the\nmatters that are the subject of this Agreement, that the United States securities laws restrict persons with material non-public information about a\ncompany from purchasing or selling securities of such company or from communicating such information to a third party under circumstances in\nwhich it is reasonably foreseeable that such third party is likely to purchase or sell such securities in reliance upon such information.\n16. Amendment and Waiver. The terms and provisions of this Agreement may be amended or modified, and the observance of any term or\nprovision hereof may be waived, only by a written instrument executed by the Parties. No failure or delay by either Party in exercising any right,\npower or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise\nthereof or the exercise of any other right, power or privilege granted hereunder.\n17. Successors and Assigns. This Agreement shall inure to, and be binding upon, the Parties hereto and their respective successors\n(including, without limitation, any successor to a Party) and permitted assigns. Neither Party shall assign this Agreement without the prior\nexpress written consent of the other Party; provided, however, that assignments by operation of law, merger or other change of control transaction\nshall be expressly permitted.\n18. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein\nand supersedes all prior discussions between them whether written or oral, except that that certain existing confidentiality agreement dated\nOctober 23, 2015 shall remain in full force and effect. This Agreement may be modified only in writing, signed by each Party.\n19. Counterparts. This Agreement may be executed in multiple identical counterparts, each of which shall be an original and all of which\nshall be deemed to be one and the same instrument.\n[signatures appear on next page]\n[signature page to Mutual Non-Disclosure Agreement—November 16, 2015]\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.\nII-VI INCORPORATED\nBy: /s/ Francis J. Kramer\nName: Francis J. Kramer\nTitle: Chairman & CEO\nANADIGICS, INC.\nBy: /s/ Ron Michels\nName: Ron Michels\nTitle: Chairman & CEO
+318ee863f0384923c019b239c78b1d83.pdf	effective_date jurisdiction party term	EX-99 .257 101 d97931exv99w257.txt PSC DOCUMENT 233 CONFIDENTIALITY AGREEMENT This CONFIDENTIALITY AGREEMENT ("Agreement") is made\nand entered into by and between AEP Energy Services, Inc. an Ohio corporation having a principal place of business at 1 Riverside Plaza, Columbus, Ohio\n43215 ("AEPES") and, Perot Systems Corporation having a principal place of business at 12404 Park Central Dr. , Dallas, TX 75251 ("Company"). Company and\nAEP may be hereinafter referred to individually as "Party" and collectively as the "Parties". WITNESSETH: WHEREAS, AEPES and Company are considering a\npossible business relationship (the "Transaction") by which the Parties would explore several business opportunities, including a potential purchase of or\nparticipating ownership interest in the WHEREAS, each of the Parties and their affiliates are in possession of trade secrets, technology, drawing specifications\nand/or other confidential information relating to its businesses and business interests and may find it desirable and necessary to exchange such information\nduring the course of these negotiations. NOW, THEREFORE , In consideration of the mutual covenants contained herein, the Parties agree as follows: 1.\nCONFIDENTIAL INFORMATION. "Confidential Information" is defined to include any information (not included in Section 4 below) that is disclosed by or about\neither party and/or their affiliate(s) (the "Disclosing Party") to the other party and/or their affiliate(s) (the "Receiving Party") in connection with the Transaction,\nsuch as: a. Written information or machine readable data, including notes, reports, assessments, specifications, drawings, financial statements and projections,\nsoftware and databases, customer information, sales and marketing strategies, and any other written information or machine readable data; b. Orally conveyed\ninformation, including but not limited to demonstrations; c. Any hardware, including but not limited to samples, devices and any other physical embodiments\ndelivered to the Receiving Party; and d. Any documents jointly or separately generated by the Parties that reflect, interpret, incorporate, evaluate, or are derived\nfrom the information described above (such documents being hereinafter referred to as "Evaluation Material"). 2 . CONFIDENTIALITY . For a period of two years\nfrom the date hereof, the Receiving Party agrees: a. to keep all Confidential Information confidential and not to copy, distribute, disclose or disseminate the\nConfidential Information in any manner to any person or entity, provided, however, that a limited number of copies of written materials may be made by the\nReceiving Party in order for the Receiving Party to adequately use the Confidential Information within the terms and conditions of this Agreement and that each\ncopy is considered as Confidential Information and as an original in accordance with this Agreement; and b. not to disclose that the Evaluation Material has been\ngenerated, or that either Party and any entity identified in the Confidential Information may be considering a business relationship or have had, are having or\npropose to have any discussions with respect thereto. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to those\nemployees, officers, directors, agents, consultants, and advisors (collectively "Representatives") whose access is necessary to conduct the investigations and\nnegotiations contemplated herein and who have been informed of the confidentiality restrictions contained in this Agreement. However, the Receiving Party may\nonly disclose the Confidential Information to non-employee Representatives of the Company whose access is necessary if the non-employee Representatives are\nprovided with a copy of this Confidentiality Agreement and agree to be bound by the terms of this Agreement. Each Party agrees to be responsible for the actions,\nuses and disclosures of any of its Representatives. 3. OWNERSHIP AND USE OF CONFIDENTIAL INFORMATION. All Confidential Information except\nEvaluation Materials shall remain the property of the Disclosing Party. No license or other rights under any patents or other proprietary rights is granted or implied\nby the conveyance of the Confidential Information. The Receiving Party shall not use the Confidential Information for any purpose other than to effectuate the\ninvestigative and negotiation purposes of this Agreement. 4 . NON-CONFIDENTIAL INFORMATION. The restrictions and confidentiality obligations set forth in this\nAgreement shall not apply to Confidential Information which: 2 a. is or becomes part of the public domain through no fault of the Receiving Party. b . is disclosed to\nthe Receiving Party by a third party when the Receiving Party reasonably believes the third party was not prohibited from making such disclosure; c. was in the\npossession of the Receiving Party on a non-confidential basis prior to disclosure by the Disclosing Party; d. subject to Section 8 hereof, is required to be disclosed\nto comply with any applicable law, order, regulation or ruling. 5. PUBLIC DISCLOSURE . Neither Party shall make any press release or other public utterances of\nany kind regarding this Agreement, the Transaction, the information received pursuant to this Agreement or the contents of this Agreement without prior written\nconsent of the other Party. 6. DISPOSITION OF CONFIDENTIAL INFORMATION . Either Party (the "requesting Party") upon written request from the other Party,\nshall promptly, but in any case within 14 days, return to the other Party or destroy all Confidential Information, including without limitation, drawings and other\ndocuments, and any copies or summaries thereof, but excepting Evaluation Material. If the Confidential Information is destroyed, upon request, the other Party\nshall provide the requesting Party with a certificate stating that all Confidential Material has been destroyed. The Evaluation Material, including all copies thereof,\nwill be destroyed by the other Party within said period and, if requested by the requesting Party, the other Party shall provide the requesting Party with a\ncertificate of destruction. 7 . PROTECTION OF CONFIDENTIAL INFORMATION. Each Party shall use efforts to protect the confidentiality of the Confidential\nInformation which are at least as stringent as those which it uses to protect its own confidential information. 8. LEGALLY REQUIRED DISCLOSURE. If either\nParty becomes legally compelled to disclose any of the Confidential Information, or if such disclosure is necessary in order to obtain or maintain regulatory or\ngovernmental approvals, applications or exemptions, such Party will provide the other Party with as much advance notice as practicable to afford the opportunity\nto seek an appropriate protective order or other remedy to prevent or narrow the disclosure or to ensure that such information will continue to be treated in as\nconfidential a manner as possible. In such cases, the Party may furnish only that portion of the Confidential Information which is legally required or necessary and\nshall cooperate with the other Party to enable it to obtain a protective order or other reliable assurance that confidential treatment will be accorded the same. 9.\nTERM OF AGREEMENT. This Agreement will be effective as of the date hereof and will terminate two years after its effective date. 3 11. WARRANTIES . Each\nParty acknowledges that other Party (including its trustees, directors, officers, employees, and agents) makes no express of implied representation or warranty as\nto the accuracy or completeness of any Confidential information and that the other Party shall have no liability arising out of or relating to the Party's or its\nRepresentatives' use of any Confidential Information. 12. REMEDIES . Each Party understands and agrees that monetary damages would not be adequate\nremedy for a breach of this Agreement. In the event of any breach or threatened breach by either Party of this Agreement, the other Party shall be entitled to\ninjunctive and other equitable relief, and that there shall be no pleading in defense thereto that there would be an adequate remedy at law. Such remedy shall be\nin addition to all other remedies available to it at law or in equity. The non-breaching Party shall also be entitled to recover its reasonable legal fees and expenses\nand costs in enforcing this Agreement or recovering damages for any breach hereof. 13 . NOTICES . Addresses for notices and requests are: AEP Energy\nServices, Inc. 1 Riverside Plaza Columbus, Ohio 43215 Attention: GENERAL COUNSEL PEROT SYSTEMS CORPORATION 12404 PARK CENTRAL DR.\nDALLAS, TX 78251 Attention: GENERAL COUNSEL Notices shall be in writing and shall be given to the designated representative, either by personal delivery or\nby the U.S . Mail, facsimile, or other similar means mutually agreeable to AEPES and the Company. All notices shall be effective upon receipt. 14. APPLICABLE\nLAW. This Agreement shall be construed and enforced in accordance with the laws of the State of Ohio, without regard to the conflict of laws in effect therein. 15.\nASSIGNMENT. This Agreement may not be assigned, delegated or transferred by either Party in any way, without the prior written consent of the other Party,\nwhich consent shall not be unreasonably withheld or delayed. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their\nrespective permitted successors and assigns. 4 16 . ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement between the Parties, supercedes\nany prior understandings or representations relating to the subject matter hereof, and shall not be subject to change or amendment except by subsequent written\nagreement signed by authorized representatives or the Parties. All provisions of this Agreement are severable, and the unenforceability of any of the provisions of\nthis Agreement shall not affect the validity or enforceability of the remaining provisions of this Agreement. 17. FINALIZATION OF TRANSACTION. Until AEPES\nand the Company have executed the documents necessary to finalize the Transaction, neither Party shall have any liability to the other Party with respect to a\nTransaction. 18. NO WAIVER. No failure or delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or further exercise of any other right, power or privilege hereunder. 19. COUNTERPARTS; FACSIMILE\nEXECUTION. This Agreement may be executed in counterparts, with each executed counterpart having the same force and effect as the original counterpart.\nThis Agreement shall be deemed binding upon the Parties if each Party executes this Agreement, sends the executed Agreement via facsimile to the other Party,\nand receives confirmation of receipt of the executed Agreement from the other Party. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement\nas of the 22ND day of May 2001. AEP Energy Services, Inc. By: /s/ By: /s/ ----------------------------- ------------------------ Title: SRVP - Administration Title: Vice\nPresident -------------------------- --------------------- AEP Energy Services, Inc. Perot Systems Corp. 5	EX-99.257 101 d97931exv99w257.txt PSC DOCUMENT 233 CONFIDENTIALITY AGREEM ENT This CONFIDENTIALITY AGREEMENT ("Agreement") is made\nand entered into by and between AE P Energy Services, Inc. an Ohio corporation having a principal place of business at 1 Riverside Plaza, Columbus, Ohio\n43215 ("AEPES") and, PerotSystems Corporation having a principal place of business at 12404 Park Central Dr., Dallas, TX 75251 ("Company"). Company and\nAEP may be hereinafter referred to individually as "P arty" and collectively as the "Parties". WITNESSETH: WHEREAS, AE PES and Company are considering a\npossible business relationship (the "Transaction") by which the Parties would explore several business opportunities, including a potential purchase ofor\nparticipating ownership interest in the WHE REAS, each of the Parties and Iheir affiliates are in possession oftrade secrets, technology, drawing specifications\nand/or other confidential information relating to is businesses and business interests and may find itdesirable and necessary to exchange such information\nduring the course of Ihese negotiations. NOW, THE RE FORE, In consideration of Ihe mutual covenants contained herein, Ihe Parties agree as follows: 1.\nCONFIDENTIAL IN FORMATION. "Confidential Information" is defined to include any information (not included in Section 4 below) that is disclosed by or about\neither party and/or their affiliate(s) (the "Disclosing Party") to the olher party and/or Iheir affiliate(s) (Ihe "Receiving Party") in connection with the Transaction,\nsuch as: a. Written information or machine readable data, including notes, reports, assessmens, specifications, drawings, financial statemens and projections,\nsoftware and databases, customer information, sales and marketing strategies, and any other written information or machine readable data; b. Orally conveyed\ninformation, including but not limited to demonstrations; c. Any hardware, including but not limited to samples, devices and any other physical embodimens\ndelivered to the Receiving Party; and d. Any documents joiany or separately generated by the Parties that reflect, interpret, incorporate, evaluate, or are derived\nfrom the information described above (such documents being hereinafter referred to as "E valuation Material"). 2. CONFIDE NTIALITY. For a period oftwo years\nfrom the date hereof, Ihe Receiving Party agrees: a. to keep all Confidential Information confidential and not to copy, distribute, disclose or disseminate the\nConfidential Information in any manner to any person or entity, provided, however, that a limited number of copies ofwritten materials may be made by the\nReceiving Party in order for the Receiving Party to adequately use the Confidential Information within the terms and conditions of this Agreement and that each\ncopy is considered as Confidential Information and as an original in accordance wilh this Agreement; and b. not to disclose thatIhe Evaluation Material has been\ngenerated, or thateither Party and any entity identified in Ihe Confidential Information may be considering a business relationship or have had, are having or\npropose to have any discussions with respectthereto. Notwithstanding the foregoing, Ihe Receiving Party may disclose Confidential Information to those\nemployees, officers, directors, agents, consultants, and advisors (collectively "Representatives") whose access is necessary to conductthe investigations and\nnegotiations contemplated herein and who have been informed ofthe confidentiality restrictions contained in this Agreement. However, the Receiving Party may\nonly disclose the Confidential Information to non-employee Representatives of Ihe Company whose access is necessary if the non-employee Representatives are\nprovided wilh a copy ofthis Confidentiality Agreement and agree to be bound by Ihe terms of this Agreement. Each Party agrees to be responsible for the actions,\nuses and disclosures of any of is Representatives. 3. OWN E RSHIP AND USE OF CONFIDENTIAL IN FORMATION. All Confidential Information except\nEvaluation Materials shall remain the property ofthe Disclosing Party. No license or other righs under any patents or other proprietary righs is granted or implied\nby the conveyance of Ihe Confidential Information. The Receiving Party shall not use the Confidential Information for any purpose other than to effectuate the\ninvestigative and negotiation purposes of Ihis Agreement. 4. NON-CONFIDENTIAL IN FORMATION. The restrictions and confidentiality obligations set forth in Ihis\nAgreementshall not apply to Confidential Information which: 2 a. is or becomes part of Ihe public domain through no faultofthe Receiving Party. b. is disclosed to\nIhe Receiving Party by a third party when the Receiving Party reasonably believes Ihe Ihird party was not prohibited from making such disclosure; c. was in the\npossession of Ihe Receiving Party on a non-confidential basis prior to disclosure by Ihe Disclosing Party; d. subjectto Section 8 hereof, is required to be disclosed\nto comply wilh any applicable law, order, regulation or ruling. 5. PU BLIC DISC LOSU RE. Neither Party shall make any press release or olher public utterances of\nany kind regarding Ihis Agreement, the Transaction, Ihe information received pursuantto this Agreement or the contents ofthis Agreement without prior written\nconsentof Ihe other Party. 6. DISPOSITION OF CONFIDE NTIAL INFORMATION. Eilher Party (the "requesting Party") upon written requestfrom the olher Party,\nshall promptly, but in any case within 14 days, return to the olher Party or destroy all Confidential Information, including without limitation, drawings and other\ndocumens, and any copies or summaries Ihereof, but excepting Evaluation Material. Ifthe Confidential Information is destroyed, upon request, Ihe other Party\nshall provide the requesting Party wilh a certificate stating Ihatall Confidential Material has been destroyed. The Evaluation Material, including all copies thereof,\nwill be destroyed by the other Party within said period and, if requested by Ihe requesting Party, Ihe other Party shall provide Ihe requesting Party with a\ncertificate ofdestruction. 7. P ROTECTION OF CONFIDE NTIAL IN FORMATION. Each Party shall use effors to protect Ihe confidentiality of the Confidential\nInformation which are at least as stringent as Ihose which it uses to protect is own confidential information. 8. LEGALLY REOUIRE D DISC LOSU RE. Ifeilher\nParty becomes legally compelled to disclose any of the Confidential Information, or if such disclosure is necessary in order to obtain or maintain regulatory or\ngovernmental approvals, applications or exemptions, such Party will provide the other Party wilh as much advance notice as practicable to afford the opportunity\nto seek an appropriate protective order or other remedy to preventor narrow Ihe disclosure or to ensure Ihatsuch information will continue to be treated in as\nconfidential a manner as possible. In such cases, the Party may furnish only that portion ofthe Confidential Information which is legally required or necessary and\nshall cooperate with Ihe other Party to enable it to obtain a protective order or other reliable assurance that confidential treatmentwill be accorded the same. 9.\nTE RM OF AGRE EM ENT. This Agreement will be effective as of Ihe date hereof and will terminate two years after is effective date. 3 11. WARRANTIES. Each\nParty acknowledges thatother Party (including is trustees, directors, officers, employees, and agens) makes no express of implied representation or warranty as\nto Ihe accuracy or completeness of any Confidential information and that Ihe other Party shall have no liability arising outofor relating to Ihe Party's or is\nRepresentatives' use of any Confidential Information. 12. RE M E DIES. Each Party understands and agrees that monetary damages would not be adequate\nremedy for a breach of this Agreement. In the eventof any breach or threatened breach by either Party ofthis Agreement, Ihe other Party shall be entitled to\ninjunctive and other equitable relief, and that Ihere shall be no pleading in defense thereto that there would be an adequate remedy at law. Such remedy shall be\nin addition to all other remedies available to it at law or in equity. The non-breaching Party shall also be entined to recover is reasonable legal fees and expenses\nand coss in enforcing this Agreementor recovering damages for any breach hereof. 13. NOTICES. Addresses for notices and requess are: AE P Energy\nSen/ices, Inc. 1 Riverside Plaza Columbus, Ohio 43215 Attention: GENERAL COUNSEL PEROT SYSTEMS CORPORATION 12404 PARK CENTRAL DR.\nDALLAS, TX 78251 Attention: GE N ERAL COUNSE L Notices shall be in writing and shall be given to the designated representative, eilher by personal delivery or\nby the US. Mail, facsimile, or other similar means mutually agreeable to AE PES and Ihe Company. All notices shall be effective upon receipt. 14. APP LICAB LE\nLAW. This Agreementshall be construed and enforced in accordance with the laws ofthe State of Ohio, without regard to the conflictof laws in effecttherein. 15.\nASSIGN M E NT. This Agreement may not be assigned, delegated or transferred by either Party in any way, wilhout Ihe prior written consentof Ihe other Party,\nwhich consentshall not be unreasonably wiIhheld or delayed. This Agreementshall be binding upon and shall inure to Ihe benefitofthe Parties hereto and their\nrespective permitted successors and assigns. 4 16. E NTIRE AG RE E M E NT. This Agreementconstitutes the entire Agreement between the Parties, supercedes\nany prior understandings or representations relating to Ihe subject matter hereof, and shall not be subject to change or amendmentexcept by subsequent written\nagreement signed by authorized representatives or Ihe Parties. All provisions ofthis Agreement are severable, and the unenforceability of any of the provisions of\nIhis Agreement shall not affect Ihe validity or enforceability ofthe remaining provisions ofthis Agreement. 17. FINALIZATION OF TRANSACTION. Until AE P ES\nand Ihe Company have executed the documens necessary to finalize the Transaction, neither Party shall have any liability to Ihe other Party with respect to a\nTransaction. 18. NO WAIVER. No failure or delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver Ihereof, nor shall any\nsingle or partial exercise thereof preclude any other or furlher exercise of any olher right, power or privilege hereunder. 19. COU NTE R PARTS; FAC SIM ILE\nEXECUTION. This Agreement may be executed in counterpars, with each executed counterpart having the same force and effect as the original counterpart.\nThis Agreementshall be deemed binding upon Ihe Parties ifeach Party executes Ihis Agreement, sends the executed Agreement via facsimile to the olher Party,\nand receives confirmation of receipt of the executed Agreement from the other Party. IN WITN ESS WHE REOF, the Parties hereto have executed this Agreement\nas ofthe 22N D day of May 2001. AE P Energy Services, Inc. By: /s/ By: /s/ ----------------------------------------------------- Title: SRVP - Administration Title: Vice\nPresident ----------------------------------------------- AEP Energy Sen/ices, Inc. PerotSystems Corp. 5	EX-99.257 101 d97931exv99w257.txt PSC DOCUMENT 233 CONFIDENTIALITY AGREEMENT This CONFIDENTIALITY AGREEMENT ("Agreement") is made\nand\nentered into by and between AEP Energy Services, Inc. an Ohio corporation having a principal place of business at 1 Riverside Plaza, Columbus, Ohio\n43215 ("AEPES") and, Perot ystems Corporation having a principal place of business at 12404 P ark Central Dr., Dallas, TX 75251 ("Company"). Company and\nAEP may be hereinafter referred to individually as "Party" and collectively as the "Parties". WITNESSETH: WHEREAS, AEPES and Company are considering a\npossible business relationship (the "Transaction") by which the Parties would explore several business opportunities, including a potential purchase of or\nparticipating ownership interest in the WHEREAS, each of the Parties and their affiliates are in possession of trade secrets, technology, drawing specifications\nand/or other confidential information relating to its businesses and business interests and may find it desirable and necessary to exchange such information\nduring the course of these negotiations. NOW, THEREFORE, In consideration of the mutua covenants contained herein, the arties agree as follows: 1.\nCONFIDENTIAL INFORMATION. "Confidential Information" is defined to include any information (not included in Section 4 below) that is disclosed by or about\neither party and/or their affiliate(s) (the "Disclosing Party") to the other party and/or their affiliate(s) (the "Receiving Party") in connection with the Transaction,\nsuch as: a. Written information or machine readable data, including notes, reports, assessments, specifications, drawings, financial statements and projections,\nsoftware and databases, customer information sales and marketing strategies, and any other written information or machine readable data; b. Orally conveyed\ninformation, including but not limited to demonstrations; C. Any hardware, including but not limited to samples, devices and any other physical embodiments\ndelivered to the Receiving arty; and d. Any documents jointly or separately generated by the arties that reflect, interpret, incorporate, evaluate, or are derived\nfrom\nthe information described above (such documents being hereinafter referred to as Evaluation Material"). 2. For a period of two\nyears\nfrom the date hereof, the Receiving Party agrees a. to keep all Confidential Information confidential and not to copy, distribute, disclose or disseminate the\nConfidential Information in any manner to any person or entity, provided, however, that a limited number of copies of written materials may be made by the\nReceiving Party in order for the R eceiving Party to adequately use the Confidential Information within the terms and conditions of this Agreement and that each\ncopy is considered as Confidential Information and as an original in accordance with this Agreement; and b. not to disclose that the Evaluation Material has been\ngenerated, or that either arty and any entity identified in the Confidential Information may be considering a business relationship or have had, are having or\npropose to have any discussions with respect thereto. Notwithstanding the foregoing, the Receiving Party may disclose Confidentia Information to those\nemployees, officers, directors, agents, consultants, and advisors (collectively "Representatives") whose access is necessary to conduct the investigations and\nnegotiations contemplated herein and who have been informed of the confidentiality restrictions contained in this Agreement. However, the Receiving Party may\nonly disclose the Confidential Information to non-employee Representatives of the Company whose access is necessary if the non-employee Representatives are\nprovided with a copy of this Confidentiality Agreement and agree to be bound by the terms of this Agreement. Each arty agrees to be responsible for the actions,\nuses and disclosures of any of its Representatives. 3. OWNERSHIP AND USE OF CONFIDENTIAL NFORMATION. All Confidential Information except\nEvaluation Materials shall remain the property of the Disclosing Party. No license or other rights under any patents or other proprietary rights is granted or implied\nby the conveyance of the Confidentia Information. The Receiving Party shall not use the Confidential Information for any purpose other than to effectuate\nthe\ninvestigative and negotiation purposes of this Agreement. 4. NON-CONFIDENTIAL INFORMATION. The restrictions and confidentiality obligations set forth\nin\nthis\nAgreement shall not apply to Confidential Information which: 2 a. is or becomes part of the public domain through no fault of the R eceiving Party. b. is disclosed to\nthe Receiving Party by a third party when the eceiving arty reasonably believes the third party was not prohibited from making such disclosure; C. was in the\npossession of the Receiving Party on a non-confidential basis prior to disclosure by the Disclosing arty; d. subject to ection 8 hereof, is required to be disclosed\nto comply with any applicable law, order, regulation or ruling 5. PUBLIC DISCLOSURE. Neither Party shall make any press release or other public utterances of\nany kind regarding this Agreement, the Transaction, the information received pursuant to this Agreement or the contents of this Agreement without prior written\nconsent of the other Party. 6. ISPOSITION OF CONFIDENTIAL NFORMATION. E ither Party (the "requesting Party") upon written request from\nthe\nother\nParty,\nshall promptly, but in any case within 14 days, return to the other Party or destroy all Confidential Information, including without limitation, drawings and other\ndocuments, and any copies or summaries thereof, but excepting Evaluation Material. If the Confidential Information is destroyed, upon request, the other Party\nshall provide the requesting Party with a certificate stating that all Confidential Material has been destroyed. The Evaluation Material, including all copies thereof,\nwil be destroyed by the other Party within said period and, if requested by the requesting Party, the other Party shal provide the requesting Party with\na\ncertificate of destruction. 7. PROTECTION OF CONFIDENTIAL NFORMATION. Each arty shall use efforts to protect the confidentiality of the Confidentia\nInformation which are at least as stringent as those which it uses to protect its own confidential information. 8. LEGALLY REQUIRED DISCLOSURE. If either\nParty becomes legally compelled to disclose any of the Confidential Information, or if such disclosure is necessary in order to obtain or maintain regulatory or\ngovernmental approvals, applications or exemptions, such Party will provide the other Party with as much advance notice as practicable to afford the opportunity\nto seek an appropriate protective order or other remedy to prevent or narrow the disclosure or to ensure that such information will continue to be treated in as\nconfidential a manner as possible. In such cases, the Party may furnish only that portion of the Confidential Information which is legally required or necessary\nand\nshall cooperate with the other Party to enable it to obtain a protective order or other reliable assurance that confidential treatment will be accorded the same. 9.\nTERM OF AGREEMENT. This Agreement will be effective as of the date hereof and will terminate two years after its effective date. 3 11. WARRANTIES. Each\nParty acknowledges that other Party (including its trustees, directors, officers, employees, and agents) makes no express of implied representation or warranty as\nto\nthe accuracy or completeness of any Confidential information and that the other arty shall have no liability arising out of or relating to the arty's or its\nRepresentatives' use of any Confidential Information. 12. REMEDIES. ach arty understands and agrees that monetary damages would not be adequate\nremedy for a breach of this Agreement. In the event of any breach or threatened breach by either Party of this Agreement, the other Party shall be entitled to\ninjunctive and other equitable relief, and that there shall be no pleading in defense thereto that there would be an adequate remedy at law. Such remedy shall be\nin addition to all other remedies available to it at law or in equity. The non-breaching P arty shall also be entitled to recover its reasonable legal fees and expenses\nand costs in enforcing this Agreement or recovering damages for any breach hereof. 13. NOTICES. Addresses for notices and requests are AEP Energy\nServices, Inc. 1 Riverside Plaza Columbus, Ohio 43215 Attention: GENERAL COUNSEL PEROT SYSTEMS CORPORATION 12404 PARK CENTRAL DR.\nDALLAS, TX 78251 Attention: GENERAL COUNSEL Notices shal be in writing and shal be given to the designated representative, either by personal delivery or\nby the U.S. Mail, facsimile, or other similar means mutually agreeable to AEPES and the Company. All notices shall be effective upon receipt. 14. APPLICABLE\nLAW. This Agreement shall be construed and enforced in accordance with the laws of the State of Ohio, without regard to the conflict of laws in effect therein.\n15.\nASSIGNMENT. This Agreement may not be assigned, delegated or transferred by either arty in any way, without the prior written consent of the other Party,\nwhich consent shall not be unreasonably withheld or delayed. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their\nrespective permitted successors and assigns. 16. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement between the arties, supercedes\nany prior understandings or representations relating to the subject matter hereof, and shall not be subject to change or amendment except by subsequent written\nagreement signed by authorized representatives or the Parties. All provisions of this Agreement are severable, and the unenforceability of any of the provisions of\nthis Agreement shall not affect the validity or enforceability of the remaining provisions of this Agreement 17. FINALIZATION OF TRANSACTION. Until AEPES\nand the Company have executed the documents necessary to finalize the Transaction, neither arty shall have any liability to the other arty with respect\nto\na\nTransaction. 18 NO WAIVER. No failure or delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partia exercise thereof preclude any other or further exercise of any other right, power or privilege hereunder. 19. COUNTERPARTS; FACSIMILE\nEXECUTION. This Agreement may be executed in counterparts, with each executed counterpart having the same force and effect as the original counterpart.\nThis\nAgreement shall be deemed binding upon the arties if each arty executes this Agreement, sends the executed Agreement via facsimile to the other arty,\nand receives confirmation of receipt of the executed Agreement from the other Party. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement\nas of the 22ND day of May 2001. AEP Energy Services, Inc. By: /s/ By: /s/\nTitle: SRVP - Administration Title: Vice\nPresident\nAEP Energy Services, Inc. Perot Systems Corp. 5	EX-99 .257 101 d97931exv99w257.txt PSC DOCUMENT 233 CONFIDENTIALITY AGREEMENT This CONFIDENTIALITY AGREEMENT ("Agreement") is made\nand entered into by and between AEP Energy Services, Inc. an Ohio corporation having a principal place of business at 1 Riverside Plaza, Columbus, Ohio\n43215 ("AEPES") and, Perot Systems Corporation having a principal place of business at 12404 Park Central Dr. , Dallas, TX 75251 ("Company"). Company and\nAEP may be hereinafter referred to individually as "Party" and collectively as the "Parties". WITNESSETH: WHEREAS, AEPES and Company are considering a\npossible business relationship (the "Transaction") by which the Parties would explore several business opportunities, including a potential purchase of or\nparticipating ownership interest in the WHEREAS, each of the Parties and their affiliates are in possession of trade secrets, technology, drawing specifications\nand/or other confidential information relating to its businesses and business interests and may find it desirable and necessary to exchange such information\nduring the course of these negotiations. NOW, THEREFORE , In consideration of the mutual covenants contained herein, the Parties agree as follows: 1.\nCONFIDENTIAL INFORMATION. "Confidential Information" is defined to include any information (not included in Section 4 below) that is disclosed by or about\neither party and/or their affiliate(s) (the "Disclosing Party") to the other party and/or their affiliate(s) (the "Receiving Party") in connection with the Transaction,\nsuch as: a. Written information or machine readable data, including notes, reports, assessments, specifications, drawings, financial statements and projections,\nsoftware and databases, customer information, sales and marketing strategies, and any other written information or machine readable data; b. Orally conveyed\ninformation, including but not limited to demonstrations; c. Any hardware, including but not limited to samples, devices and any other physical embodiments\ndelivered to the Receiving Party; and d. Any documents jointly or separately generated by the Parties that reflect, interpret, incorporate, evaluate, or are derived\nfrom the information described above (such documents being hereinafter referred to as "Evaluation Material"). 2 . CONFIDENTIALITY . For a period of two years\nfrom the date hereof, the Receiving Party agrees: a. to keep all Confidential Information confidential and not to copy, distribute, disclose or disseminate the\nConfidential Information in any manner to any person or entity, provided, however, that a limited number of copies of written materials may be made by the\nReceiving Party in order for the Receiving Party to adequately use the Confidential Information within the terms and conditions of this Agreement and that each\ncopy is considered as Confidential Information and as an original in accordance with this Agreement; and b. not to disclose that the Evaluation Material has been\ngenerated, or that either Party and any entity identified in the Confidential Information may be considering a business relationship or have had, are having or\npropose to have any discussions with respect thereto. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to those\nemployees, officers, directors, agents, consultants, and advisors (collectively "Representatives") whose access is necessary to conduct the investigations and\nnegotiations contemplated herein and who have been informed of the confidentiality restrictions contained in this Agreement. However, the Receiving Party may\nonly disclose the Confidential Information to non-employee Representatives of the Company whose access is necessary if the non-employee Representatives are\nprovided with a copy of this Confidentiality Agreement and agree to be bound by the terms of this Agreement. Each Party agrees to be responsible for the actions,\nuses and disclosures of any of its Representatives. 3. OWNERSHIP AND USE OF CONFIDENTIAL INFORMATION. All Confidential Information except\nEvaluation Materials shall remain the property of the Disclosing Party. No license or other rights under any patents or other proprietary rights is granted or implied\nby the conveyance of the Confidential Information. The Receiving Party shall not use the Confidential Information for any purpose other than to effectuate the\ninvestigative and negotiation purposes of this Agreement. 4 . NON-CONFIDENTIAL INFORMATION. The restrictions and confidentiality obligations set forth in this\nAgreement shall not apply to Confidential Information which: 2 a. is or becomes part of the public domain through no fault of the Receiving Party. b . is disclosed to\nthe Receiving Party by a third party when the Receiving Party reasonably believes the third party was not prohibited from making such disclosure; c. was in the\npossession of the Receiving Party on a non-confidential basis prior to disclosure by the Disclosing Party; d. subject to Section 8 hereof, is required to be disclosed\nto comply with any applicable law, order, regulation or ruling. 5. PUBLIC DISCLOSURE . Neither Party shall make any press release or other public utterances of\nany kind regarding this Agreement, the Transaction, the information received pursuant to this Agreement or the contents of this Agreement without prior written\nconsent of the other Party. 6. DISPOSITION OF CONFIDENTIAL INFORMATION . Either Party (the "requesting Party") upon written request from the other Party,\nshall promptly, but in any case within 14 days, return to the other Party or destroy all Confidential Information, including without limitation, drawings and other\ndocuments, and any copies or summaries thereof, but excepting Evaluation Material. If the Confidential Information is destroyed, upon request, the other Party\nshall provide the requesting Party with a certificate stating that all Confidential Material has been destroyed. The Evaluation Material, including all copies thereof,\nwill be destroyed by the other Party within said period and, if requested by the requesting Party, the other Party shall provide the requesting Party with a\ncertificate of destruction. 7 . PROTECTION OF CONFIDENTIAL INFORMATION. Each Party shall use efforts to protect the confidentiality of the Confidential\nInformation which are at least as stringent as those which it uses to protect its own confidential information. 8. LEGALLY REQUIRED DISCLOSURE. If either\nParty becomes legally compelled to disclose any of the Confidential Information, or if such disclosure is necessary in order to obtain or maintain regulatory or\ngovernmental approvals, applications or exemptions, such Party will provide the other Party with as much advance notice as practicable to afford the opportunity\nto seek an appropriate protective order or other remedy to prevent or narrow the disclosure or to ensure that such information will continue to be treated in as\nconfidential a manner as possible. In such cases, the Party may furnish only that portion of the Confidential Information which is legally required or necessary and\nshall cooperate with the other Party to enable it to obtain a protective order or other reliable assurance that confidential treatment will be accorded the same. 9.\nTERM OF AGREEMENT. This Agreement will be effective as of the date hereof and will terminate two years after its effective date. 3 11. WARRANTIES . Each\nParty acknowledges that other Party (including its trustees, directors, officers, employees, and agents) makes no express of implied representation or warranty as\nto the accuracy or completeness of any Confidential information and that the other Party shall have no liability arising out of or relating to the Party's or its\nRepresentatives' use of any Confidential Information. 12. REMEDIES . Each Party understands and agrees that monetary damages would not be adequate\nremedy for a breach of this Agreement. In the event of any breach or threatened breach by either Party of this Agreement, the other Party shall be entitled to\ninjunctive and other equitable relief, and that there shall be no pleading in defense thereto that there would be an adequate remedy at law. Such remedy shall be\nin addition to all other remedies available to it at law or in equity. The non-breaching Party shall also be entitled to recover its reasonable legal fees and expenses\nand costs in enforcing this Agreement or recovering damages for any breach hereof. 13 . NOTICES . Addresses for notices and requests are: AEP Energy\nServices, Inc. 1 Riverside Plaza Columbus, Ohio 43215 Attention: GENERAL COUNSEL PEROT SYSTEMS CORPORATION 12404 PARK CENTRAL DR.\nDALLAS, TX 78251 Attention: GENERAL COUNSEL Notices shall be in writing and shall be given to the designated representative, either by personal delivery or\nby the U.S . Mail, facsimile, or other similar means mutually agreeable to AEPES and the Company. All notices shall be effective upon receipt. 14. APPLICABLE\nLAW. This Agreement shall be construed and enforced in accordance with the laws of the State of Ohio, without regard to the conflict of laws in effect therein. 15.\nASSIGNMENT. This Agreement may not be assigned, delegated or transferred by either Party in any way, without the prior written consent of the other Party,\nwhich consent shall not be unreasonably withheld or delayed. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their\nrespective permitted successors and assigns. 4 16 . ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement between the Parties, supercedes\nany prior understandings or representations relating to the subject matter hereof, and shall not be subject to change or amendment except by subsequent written\nagreement signed by authorized representatives or the Parties. All provisions of this Agreement are severable, and the unenforceability of any of the provisions of\nthis Agreement shall not affect the validity or enforceability of the remaining provisions of this Agreement. 17. FINALIZATION OF TRANSACTION. Until AEPES\nand the Company have executed the documents necessary to finalize the Transaction, neither Party shall have any liability to the other Party with respect to a\nTransaction. 18. NO WAIVER. No failure or delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or further exercise of any other right, power or privilege hereunder. 19. COUNTERPARTS; FACSIMILE\nEXECUTION. This Agreement may be executed in counterparts, with each executed counterpart having the same force and effect as the original counterpart.\nThis Agreement shall be deemed binding upon the Parties if each Party executes this Agreement, sends the executed Agreement via facsimile to the other Party,\nand receives confirmation of receipt of the executed Agreement from the other Party. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement\nas of the 22ND day of May 2001. AEP Energy Services, Inc. By: /s/ By: /s/ ----------------------------- ------------------------ Title: SRVP - Administration Title: Vice\nPresident -------------------------- --------------------- AEP Energy Services, Inc. Perot Systems Corp. 5
+32c80a90ff2ddb11f7241081dcf8d6ba.pdf	effective_date jurisdiction party term	EX-10.34 5 dex1034.htm EMPLOYMENT, CONFIDENTIALITY, SEVERENCE AND NON-COMPETITION\nAGREEMENT\nExhibit 10.34\nEMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT\nTHIS EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT (this “Agreement”) is\nentered into as of January 9, 2009 by and between Thomas T. Riley (the “Executive”) and SAVVIS, INC., a Delaware corporation, and all its\nsubsidiaries (collectively referred to as the “Company”). Capitalized terms used but not defined herein have the respective meanings ascribed to such\nterms in Section 7 of this Agreement.\nWHEREAS, Executive acknowledges that:\n•\nthe Company and its Affiliates are and will be engaged in a number of highly competitive lines of business.\n•\nthe Company and its Affiliates conduct business throughout the United States and in numerous foreign countries;\n•\nthe Company and its Affiliates possess Confidential Information and customer goodwill that provide the Company and its\nAffiliates with a significant competitive advantage; and\n•\nthe Company’s and its Affiliates’ success depends to a substantial extent upon the protection of its Confidential Information\n(which includes trade secrets and customer lists) and customer goodwill by all of their employees;\n•\nExecutive has and will continue to have possession of Confidential Information; and\nWHEREAS, if Executive were to leave the Company, the Company and its Affiliates would in all fairness need certain protections to\nprevent competitors from gaining an unfair competitive advantage over them.\nNOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Term of Agreement. This Agreement will remain in effect from the date hereof until the date the Executive’s employment with the Company\nterminates for any reason. The following provisions shall survive termination or expiration of this Agreement for any reason, to the extent applicable\nand in accordance with their terms: Sections 4, 5, 6 and 8. Executive’s employment is “at-will”, and nothing contained herein shall be deemed a\nguarantee of employment with Company for any period of time.\n2. Capacity and Performance.\n(a) During the term hereof, the Executive shall serve the Company in the position to which he or she is appointed from time to time.\nExecutive’s position as of the date of this Agreement is January 26, 2009. During the term hereof, Executive will be employed by the Company on a\nfull-time basis and shall perform the duties and responsibilities of his or her position and such other duties and responsibilities on behalf of the\nCompany and its Affiliates, reasonably related to that position, as may be designated from time to time by the Compensation Committee (the\n“Compensation Committee”) of the Board of Directors of the Company (the “Board”) or other designee.\n(b) During the term hereof, the Executive shall devote his full business time and his best efforts, business judgment, skill and knowledge to the\nadvancement of the business and interests of the Company and its Affiliates and to the discharge of his duties and responsibilities hereunder. The\nExecutive shall not engage in any other business activity or serve in any industry, trade, professional, governmental or academic position during the\nterm of this Agreement, except as may otherwise be expressly approved in advance by the Compensation Committee or other designee in writing.\n3. Compensation and Benefits. As compensation for all services performed by the Executive under and during the term hereof, and subject to\nperformance of the Executive’s duties and the fulfillment of the obligations of the Executive to the Company and its Affiliates, pursuant to this\nAgreement or otherwise:\n(a) Base Salary. During the term hereof, the Company shall pay the Executive a base salary, which as of the date of execution of this\nAgreement is set at the rate of three hundred twenty five thousand dollars ($325,000.00) per annum, payable in accordance with the regular payroll\npractices of the Company for its executives subject to adjustment from time to time by the Compensation Committee, in its sole discretion. Such\nbase salary, as from time to time adjusted, is hereafter referred to as the “Base Salary”.\n(b) Incentive and Bonus Compensation.\n(i) For service rendered during the Company’s fiscal year ending December 31, 2009, the Executive will be eligible, at the Compensation\nCommittee’s discretion, to receive a bonus payment equal to 50% of Base Salary, payable in accordance with the terms of the Company’s 2009\nAnnual Incentive Plan. For the remainder of the term hereof, the Executive shall be entitled to participate in the Company’s Annual Incentive Plan\n(the “Annual Incentive Plan”) on terms to be determined annually by the Compensation Committee prior to the commencement of each fiscal year.\nNothing contained herein shall obligate the Company to continue the Annual Incentive Plan. Any compensation paid to the Executive under the\nAnnual Incentive Plan shall be in addition to the Base Salary. Except as otherwise expressly provided under the terms of the Annual Incentive Plan\nor this Agreement, the Executive shall not be entitled to earn bonus or other compensation for services rendered to the Company.\n(ii) Stock Options. Subject to approval by the Compensation Committee, the Company shall grant to the Executive an option to purchase\n250,000 shares of the common stock, $.01 par value, of the Company under the SAVVIS, Inc. Amended and Restated 2003 Incentive Compensation\nPlan (the “Plan”) at an exercise price per share equal to the public market closing price on the business day immediately prior to the date of grant\n(the “Option”). These options shall be non-qualified stock options to the extend permitted by the Plan and applicable law. The shares that are subject\nto the Option shall vest at the rate of twenty-five percent (25%) per year on each of the first four (4) anniversaries of the grant date; provided that the\nExecutive is still employed by the Company on each such vesting date. Vesting of the Option is also subject to the terms of Section 4(c)(ii) of this\nAgreement. Except as may be modified by the terms of this Agreement, the Option and all other options granted to the Executive by the Company\nshall be subject to the terms of the Plan and any applicable option certificate and shareholder and/or option holder agreements and other restrictions\nand limitations generally applicable to equity held by Company executives or otherwise required by law.\n4. Termination of Employment.\n(a) Executive’s employment with the Company may be terminated as follows:\n(i) by the Company with Cause;\n(ii) by the Company without Cause;\n(iii) upon Executive’s death or Disability (defined herein);\n(iv) by Executive with Good Reason; or\n(v) by Executive without Good Reason.\n(b) Upon termination of Executive’s employment for any reason, all rights and obligations under this Agreement shall cease, except as referred\nto in Section 1 and except that Executive shall be entitled to (i) payment of his or her salary through the effective date of termination, plus\n(ii) payment of any other amounts owed but not yet paid to Executive as of the effective date of termination (such as reimbursement for business\nexpenses incurred prior to termination in accordance with the Company’s expense and reimbursement policy, plus (iii) any other benefits to which\nExecutive may be entitled which provide for payment or other benefits following termination (such as under disability insurance plan).\n2\n(c) Severance Benefits.\n(i) If the Executive is subject to termination pursuant to an Involuntary Termination (as defined in Section 7), then in addition to any\namounts / benefits owed under Section 4(b), the Company shall pay the Executive: (x) an amount equal to 100% of his or her then current annual\nBase Salary for one year, plus (y) at the discretion of the Compensation Committee, a pro-rated portion of the bonus that the Executive would be\nentitled to receive under the Company’s Annual Incentive Plan (“Bonus”). The pro-rated Bonus will be calculated by the compensation committee\nby extrapolating the Company’s anticipated full year performance based on the current year performance to date and then multiplying the resulting\nfull year extrapolation a fraction the numerator of which is the number of days during the calendar year the Executive worked in the year of\nInvoluntary Termination up to the termination date and the denominator of which is 365 (the amounts paid under (i) and (ii) constitute the\n“Severance Payment”). If the Executive is subject to an Involuntary Termination prior to March 31 of any calendar year, and has, therefore, not yet\nreceived payment for the prior year under the Annual Incentive Plan, then the Executive will also be entitled to such payment under the Annual\nIncentive Plan as he would otherwise have been entitled to receive had he remained employed on March 31 of the year of Involuntary Termination.\n(ii) Further, if and only if the Involuntary Termination occurs within twelve (12) months of a Change in Control (a “Change in Control\nTermination”), then (x) in addition to the Severance Payment, any stock awards, stock options, stock appreciation rights or other equity-based\nawards (each an “Equity Award”) that were outstanding immediately prior to the effective date of the Change in Control Termination shall, provided\nsuch Equity Awards are assumed by the acquirer in such Change in Control, to the extent not then vested, fully vest and become exercisable as of the\nsuch date and the Executive shall have the right to exercise any such Equity Award until the earlier to occur of (A) twelve (12) months from the date\nof the Change in Control Termination and (B) the expiration date of such Equity Award as set forth in the agreement evidencing such award; and\n(y) the Executive shall be entitled to the Bonus.\n(d) Timing of and Conditions to Payment. Any Severance Payment due under Section 4(c) shall be paid bi-monthly, in accordance with the\nCompany’s standard payroll procedures, for the twelve (12) month period following the effective date of termination. Any other provision of this\nAgreement notwithstanding, no severance benefits shall be payable unless and until each of the following has occurred:\n(i) the Executive has executed and delivered to the Company a general release (in a form prescribed by the Company) of all known and\nunknown claims that he or she may then have against the Company or persons affiliated with the Company and has agreed not to prosecute any legal\naction or other proceeding based upon any of such claims;\n(ii) the Executive has, no later than the effective date of termination, delivered to the Company a resignation from all offices,\ndirectorships and fiduciary positions with the Company and it affiliates;\n(iii) the effective date of the Executive’s Involuntary Termination;\n(iv) the date of the Company’s receipt of the Executive’s executed General Release, which must be no later than 21 days following the\neffective date of termination (except in the case of group terminations, such time period shall be 45 days);\n(v) the expiration of any rescission or revocation period applicable to the Executive’s executed General Release; and\n(vi) the Executive is and continues to be in compliance with all of his or her obligations under this Agreement, including, without\nlimitation, Sections 5 and 6, and under the agreements and other documents referred to or incorporated by reference herein.\nThe Company will commence payment of the Severance Payment within ten (10) business days of satisfaction / occurrence of the last of the\nforegoing items (1) through (5). For purposes of Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), an installment\nSeverance Payment shall be deemed to be made as of the applicable bimonthly payroll date following the Executive’s effective date of termination if\nmade by the 15th day of the third calendar month following such payroll date.\n3\n(e) Health Care Benefit. If the Executive elects to continue his or her health insurance coverage under the Consolidated Omnibus Budget\nReconciliation Act (“COBRA”) following an Involuntary Termination, then in addition to the benefits noted above, the Company shall pay the\nExecutive’s monthly premium under COBRA until the earliest of (i) the close of the twelve-month period following cessation of his or her\nemployment or (ii) the expiration of the Executive’s continuation coverage under COBRA.\n(f) Withholding Taxes. All payments made under this Agreement shall be subject to reduction to reflect taxes or other charges required to be\nwithheld by law.\n(g) Section 409A Savings Clause. If any compensation or benefits provided by this Agreement may result in the application of Section 409A of\nthe Code, the Company shall, in consultation with the Executive, modify the Agreement in the least restrictive manner necessary in order to exclude\nsuch compensation from the definition of “deferred compensation” within the meaning of such Section 409A or in order to comply with the\nprovisions of Section 409A, other applicable provision(s) of the Code and/or any rules, regulations or other regulatory guidance issued under such\nstatutory provisions and without any diminution in the value of the payments to the Executive.\nAmounts payable other than those expressly payable on a deferred or installment basis, will be paid as promptly as practical and, in any\nevent, within 2 /2 months after the end of the year in which such amount was earned.\nAny amount that the Executive is entitled to be reimbursed will be reimbursed as promptly as practical and in any event not later than the\nlast day of the calendar year after the calendar year in which the expenses are incurred, and the amount of the expenses eligible for reimbursement\nduring any calendar year will not affect the amount of expenses eligible for reimbursement in any other calendar year.\nIf at the time of separation from service (i) the Executive is a specified employee (within the meaning of Section 409A and using the identification\nmethodology selected by the Company from time to time), and (ii) the Company makes a good faith determination that an amount payable by the\nCompany to the Executive constitutes deferred compensation (within the meaning of Section 409A) the payment of which is required to be delayed\npursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A, then the Company will not\npay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on the first business day after such six-month period\ntogether with interest for the period of delay, compounded annually, equal to the prime rate (as published in the Wall Street Journal) in effect as of\nthe dates the payments should otherwise have been provided.\n5. Confidential Information.\n(a) The Executive acknowledges that the Company and its Affiliates continually develop Confidential Information, that the Executive may\ndevelop Confidential Information for the Company or its Affiliates and that the Executive will have possession of and access to Confidential\nInformation during the course of employment. The Executive will comply with the policies and procedures of the Company and its Affiliates for\nprotecting Confidential Information, and shall not disclose to any Person or use, other than as required by applicable law or for the proper\nperformance of his duties and responsibilities to the Company and its Affiliates, any Confidential Information obtained by the Executive incident to\nhis employment or other association with the Company or any of its Affiliates. The Executive understands that this restriction shall continue to apply\nafter his employment terminates, regardless of the reason for such termination. The confidentiality obligation under this Section 5 shall not apply to\ninformation which is generally known or readily available to the public at the time of disclosure or becomes generally known through no wrongful\nact on the part of the Executive or any other Person having an obligation of confidentiality to the Company or any of its Affiliates.\n(b) All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company\nor its Affiliates and any copies, in whole or in part, thereof (the “Documents”), whether or not prepared by the Executive, shall be the sole and\nexclusive property of the Company and its Affiliates. The Executive shall safeguard all Documents and shall surrender to the Company at the time\nhis employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive’s\npossession or control.\n4\n1\n(c) In the event that Executive is requested or becomes legally compelled (by oral questions, interrogatories, requests for information or\ndocuments, deposition, subpoena, civil investigative demand or similar process) to disclose any of the Confidential Information, the Executive shall,\nwhere permitted under applicable law, rule or regulation, provide written notice to the Company promptly after such request so that the Company\nmay, at its expense, seek a protective order or other appropriate remedy (the Executive agrees to reasonably cooperate with the Company in\nconnection with seeking such order or other remedy). In the event that such protective order or other remedy is not obtained, the Executive shall\nfurnish only that portion of the Confidential Information that the Executive is advised by counsel is required, and shall exercise reasonable efforts to\nobtain assurance that confidential treatment will be accorded such Confidential Information. In addition, the Executive may disclose Confidential\nInformation in the course of inspections, examinations or inquiries by federal or state regulatory agencies and self regulatory organizations that have\nrequested or required the inspection of records that contain the Confidential Information provided that the Executive exercises reasonable efforts to\nobtain reliable assurances that confidential treatment will be accorded to such Confidential Information. To the extent such information is required to\nbe disclosed and is not accorded confidential treatment as described in the immediately preceding sentence, it shall not constitute “Confidential\nInformation” under this Agreement.\n6. Certain Covenants.\n(a) The Executive agrees that, during his employment with the Company, he or she will not undertake any outside activity, whether or not\ncompetitive with the business of the Company or its Affiliates that could reasonably give rise to a conflict of interest or otherwise materially interfere\nwith his or her duties and obligations to the Company or any of its Affiliates.\n(b) During the term of Executive’s employment and for twelve (12) months following termination of his or her employment for any reason (the\n“Restricted Period”), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or\notherwise:\n(i) compete with the Company or any of its Affiliates within the geographic area in which the Company does business or undertake any\nplanning for any business competitive with the Company or any of its Affiliates. Specifically, but without limiting the foregoing, the Executive\nagrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Affiliates\nas conducted or under consideration at any time during the Executive’s employment, and further agrees not to work or provide services, in any\ncapacity, whether as an employee, independent contractor or otherwise, whether with or without compensation, to any Person who is engaged in any\nbusiness that is competitive with the business of the Company or any of its Affiliates for which the Executive has provided services. The foregoing,\nhowever, shall not prevent the Executive’s passive ownership of two percent (2%) or less of the equity securities of any publicly traded company.\nNotwithstanding any provision in this Agreement, section 6. (b) (i) shall not be deemed to create post-employment non-competition restrictions on\nEmployee if Employee’s primary residence is in the state of California; or\n(ii) solicit or encourage any customer of the Company or any of its Affiliates to terminate or diminish its relationship with them; or\n(iii) seek to persuade any such customer of the Company or any of its Affiliates to conduct with anyone else any business or activity\nwhich such customer conducts with the Company or any of its Affiliates; provided that these restrictions shall apply only if the Executive has\nperformed work for such Person during his employment with the Company or one of its Affiliates or has been introduced to, or otherwise had\ncontact with, such Person as a result of his employment or other associations with the Company or one of its Affiliates or has had access to\nConfidential Information which would assist in the Executive’s solicitation of such Person.\n(iv) solicit for hiring any employee or independent contractor of the Company or any of its Affiliates or seek to persuade any employee\nor independent contractor of the Company or any of its Affiliates to discontinue or diminish such employee or independent contractor’s relationship\nwith the Company or any of its Affiliates.\n5\n(c) Cooperation and Non-Disparagement. The Executive agrees that, during the Restricted Period, he or she shall cooperate with the Company\nin every reasonable respect and shall use his or her best efforts to assist the Company with the transition of the Executive’s duties to his or her\nsuccessor. The Executive further agrees that, during the Restricted Period, he or she shall not in any way or by any means disparage the Company,\nthe members of the Company’s Board or the Company’s officers and employees.\n(d) Assignment of Inventions. The Executive shall promptly and fully disclose all Work Product (defined herein) to the Company. Executive\nhereby assigns to the Company all of Executive’s rights, title, and interest (including but not limited to all patent, trademark, copyright and trade\nsecret rights) in and to all work product prepared by Executive, made or conceived in whole or in part by Executive within the scope of Executive’s\nemployment by the Company or within six (6) months thereafter, or that relate directly to or involve the use of Confidential Information (“Work\nProduct”). Executive further acknowledges and agrees that all copyrightable Work Product prepared by Executive within the scope of Executive’s\nemployment with the Company are “works made for hire” and, consequently, that the Company owns all copyrights thereto. The Executive agrees to\nexecute any and all applications for domestic and foreign patents, copyrights or other proprietary rights and to do such other acts (including without\nlimitation the execution and delivery of instruments of further assurance or confirmation) requested by the Company to assign the Work Product to\nthe Company and to permit the Company to enforce any patents, copyrights or other proprietary rights to the Work Product. The Executive will not\ncharge the Company for time spent in complying with these obligations. Notwithstanding the foregoing, any provision in this Agreement which\nprovides that Executive shall assign, offer to assign, any of his or her rights in an invention to the Company shall not apply to an invention that the\nExecutive developed entirely on his or her own time without using the Company’s equipment, supplies, facilities, or trade secret information except\nfor those inventions that either:\n(i) relate at the time of conception or reduction to practice of the invention to the Company’s business or actual demonstrably anticipated\nresearch or development of the Company; or\n(ii) result from any work performed by the Executive for the Company.\n(e) Acknowledgement Regarding Restrictions. The Company has expended a great deal of time, money and effort to develop and maintain its\nconfidential business information which, if misused or disclosed, could be very harmful to its business and could cause the Company to be at a\ncompetitive disadvantage in the marketplace. The Company would not be willing to proceed with the execution of this Agreement but for the\nExecutive’s signing and agreeing to abide by the terms of this Agreement. The Executive recognizes and acknowledges that he or she has and will\nhave access to Confidential Information of the Company, and that the Company, in all fairness, needs certain protection in order to ensure that the\nExecutive does not misappropriate or misuse any trade secret or other Confidential Information or take any other action which could result in a loss\nof the goodwill of the Company and, more generally, to prevent the Executive from having or providing others with an unfair competitive advantage\nover the Company. To that end, the Executive acknowledges that the foregoing restrictions, both separately and in total, are reasonable and\nenforceable in view of the Company’s legitimate interests in protecting the goodwill, confidential information and customer loyalty of its business.\nTo the extent that any provision of this Agreement is adjudicated to be invalid or unenforceable because it is somehow overbroad or otherwise\nunreasonable, that provision shall not be void but rather shall be limited only to the extent required by applicable law and enforced as so limited to\nthe greatest extent allowed by law, and the validity or enforceability of the remaining provisions of this Agreement shall be unaffected and such\nadjudication shall not affect the validity or enforceability of such remaining provisions.\n(f) Right to Injunctive Relief. The Executive further agrees that in the event of any breach hereof the harm to the Company will be irreparable\nand without adequate remedy at law and, therefore, that injunctive relief with respect thereto will be appropriate. In the event of a breach or\nthreatened breach of any of the Executive’s obligations under the terms of Sections 5 or 6 hereof, the Company shall be entitled, in addition to any\nother legal or equitable remedies it may have in connection therewith (including any right to damages that it may suffer), to temporary, preliminary\nand permanent injunctive relief restraining such breach or threatened breach (without the obligation to post bond), together with reasonable\nattorney’s fees incurred in preliminarily enforcing its rights hereunder. The Executive specifically agrees that if there is a question as to the\nenforceability of any of the provisions of Sections 5 or 6 hereof, the Executive will not engage in any conduct inconsistent with or contrary to such\nSection until after the question has been resolved by a final judgment of a court of competent jurisdiction.\n6\n7. Definitions.\n(a) Definition of “Affiliate.” For all purposes under this Agreement, “Affiliate” shall mean, with respect to any Person, all Persons directly or\nindirectly controlling, controlled by or under common control with such Person, where control may be by either management authority, contract or\nequity interest. As used in this definition, “control” and correlative terms have the meanings ascribed to such words in Rule 12b-2 of the Securities\nExchange Act of 1934, as amended (the “Exchange Act”).\n(b) Definition of “Cause.” For all purposes under this Agreement, “Cause” shall mean any of the following (i) the Executive’s willful and\ncontinued failure to perform substantially the duties of his/her responsibilities (other than due to physical or mental incapacity); (ii) the Executive’s\nunauthorized use or disclosure of trade secrets which causes substantial harm to the Company; (iii) the Executive’s engaging in illegal conduct that is\nlikely to be injurious to the Company; (iv) the Executive’s acts of fraud, dishonesty, or gross misconduct, or gross negligence in connection with the\nbusiness of the Company; (v) the Executive’s conviction of a felony; (vi) the Executive’s engaging in any act of moral turpitude reasonably likely to\nsubstantially and adversely affect the Company or its business; (vii) the Executive engaging in the illegal use of a controlled substance or using\nprescription medications unlawfully; (viii) the Executive’s abuse of alcohol; or (ix) the breach by the Executive of a material term of this Agreement,\nincluding, without limitation, his or her obligations under Sections 5 or 6.\n(c) Definition of “Change in Control.” For all purposes under this Agreement, “Change in Control” shall mean any transaction in which a\nPerson or group (other than a group consisting of one or more of the Persons listed on Schedule A attached hereto and their respective Affiliates)\nbecomes the beneficial owner directly or indirectly (within the meaning of Rule 13d-3 under the Exchange Act) of more than 50% (on a fully-diluted\nbasis) of the total capital stock of the Company’s entitled to vote ordinarily for the election of directors.\n(d) Definition of “Confidential Information.” For all purposes under this Agreement, “Confidential Information” shall mean any and all\ninformation of the Company and its Affiliates that is not generally known by others with whom they compete or do business, or with whom any of\nthem plans to compete or do business and any and all information, publicly known in part or not, which, if disclosed by the Company or its Affiliates\nwould assist in competition against them. Confidential Information includes without limitation such information relating to (i) trade secrets, the\ndevelopment, research, testing, manufacturing, marketing and financial activities of the Company and its Affiliates, (ii) the Products, (iii) the costs,\nsources of supply, financial performance and strategic plans of the Company and its Affiliates, (iv) the identity and special needs of the customers of\nthe Company and its Affiliates and (v) client lists and the people and organizations with whom the Company and its Affiliates have business\nrelationships and the substance of those relationships. Confidential Information also includes any information that the Company or any of its\nAffiliates have received, or may receive hereafter, belonging to customers or others with any understanding, express or implied, that the information\nwould not be disclosed.\n(e) Definition of “Disability.” For all purposes under this Agreement, “Disability” shall mean the Executive becoming disabled during his\nemployment hereunder through any illness, injury, accident or condition of either a physical or psychological nature and, as a result, is unable to\nperform substantially all of his duties and responsibilities hereunder, notwithstanding the provision of any reasonable accommodation, for one\nhundred and eighty (180) days during any period of three hundred and sixty-five (365) consecutive calendar days.\n(f) Definition of “Good Reason.” For all purposes under this Agreement, “Good Reason” shall mean the occurrence of any of the following\nevents, without the Executive’s consent: (i) change in the Executive’s position as officer of the Company that materially reduces his or her authority\nor level of responsibility, (ii) a material reduction in his or her level of compensation (including base salary and target bonus) other than pursuant to a\nCompany-wide reduction of compensation, or (iii) a relocation of his or her employment more than 50 miles from the Executive’s office or location\nat the time of resignation.\n7\nTo constitute Good Reason, termination must occur within two (2) years following the initial occurrence of such event; Executive must\nprovide written notice within 90 days of the occurrence to the Company; and if correctable, Company must fail to correct within 30 days of notice of\ntermination.\n(g) Definition of “Intellectual Property.” For all purposes under this Agreement, “Intellectual Property” shall mean inventions, discoveries,\ndevelopments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or constituting trade secrets)\nconceived, made, created, developed or reduced to practice by the Executive (whether alone or with others, whether or not during normal business\nhours or on or off Company premises) during the Executive’s employment and during the period of six (6) months immediately following\ntermination of his employment that relate to either the Products or any prospective activity of the Company or any of its Affiliates or that make use\nof Confidential Information or any of the equipment or facilities of the Company or any of its Affiliates.\n(h) Definition of “Involuntary Termination.” For all purposes under this Agreement, “Involuntary Termination” shall mean termination of\nemployment under Section 4(a)(ii) or Section 4(a)(iv).\n(i) Definition of “Person.” For all purposes under this Agreement, “Person” shall mean an individual, a corporation, a limited liability\ncompany, an association, a partnership, an estate, a trust and any other entity or organization.\n(j) Definition of “Products.” For all purposes under this Agreement, “Products” shall mean all products planned, researched, developed, tested,\nmanufactured, sold, licensed, leased or otherwise distributed or put into use by the Company or any of its Affiliates, together with all services\nprovided or planned by the Company or any of its Affiliates, during the Executive’s employment.\n8. Miscellaneous Provisions.\n(a) Conflicts. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Company document, then\nthe provisions of this Agreement will control. This Agreement will supersede any prior agreement between the Executive and the Company with\nrespect to the subject matters contained herein and may be amended only by a writing signed by an officer of the Company (other than the\nExecutive).\n(b) Notice. Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been duly\ngiven when personally delivered or when mailed by U.S . registered or certified mail, return receipt requested and postage prepaid or deposited with\nan overnight courier, with shipping charges prepaid. In the case of the Executive, mailed notices shall be addressed to him or her at the home address\nwhich he or she most recently communicated to the Company in writing. In the case of the Company, mailed notices shall be addressed to its\ncorporate headquarters, and all notices shall be directed to the attention of its Senior Vice President of Human Resources.\n(c) Waiver. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to\nin writing and signed by the Executive and by an authorized officer of the Company (other than the Executive). No waiver by either party of any\nbreach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of any other condition\nor provision or of the same condition or provision at another time.\n(d) Severability. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision hereof, which shall remain in full force and effect.\n(e) No Retention Rights. Nothing in this Agreement shall confer upon the Executive any right to continue in service for any period of specific\nduration or to interfere with or otherwise restrict in any way the rights of the Company or any subsidiary of the Company or of the Executive, which\nrights are hereby expressly reserved by each, to terminate his or her service at any time and for any reason, with or without Cause and with or\nwithout notice.\n8\n(f) Choice of Law; Venue. The parties acknowledge that they each have, and will continue to have, substantial contacts with the State of\nMissouri, where the Company has its headquarters. This Agreement has been drafted and negotiated in the State of Missouri. To ensure that any\ndisputes arising under this Agreement are resolved in accordance with the parties’ expectations, this Agreement shall be governed by and construed\nunder the laws of the State of Missouri and applicable federal laws. The substantive law (and statutes of limitations) of the State of Missouri shall be\napplied to disputes arising under this Agreement, as the parties agree that their expectations with respect to the scope and enforcement of this\nAgreement are based on Missouri law, and that Missouri law is therefore more applicable to such disputes. Should Missouri law be found not to\napply to this Agreement for any reason, the parties agree that the severance benefit described in Section 4 shall not be payable, the provisions of\nSection 4 notwithstanding. Each party agrees that any proceeding relating to this Agreement shall be brought in the state courts of Missouri located\nin St. Louis County or the federal courts of the District of Missouri, Eastern Division. Each party hereby consents to personal jurisdiction in any such\naction brought in any such Missouri court, consents to service of process by the methods for notice under Section 8(b) hereof made upon such party,\nand such party’s agent and waives any objection to venue in any such Missouri court or to any claim that any such Missouri court is an inconvenient\nforum.\n(g) Attorney’s Fees. In the event of any action by either party to enforce or interpret the terms of this Agreement, the prevailing party with\nrespect to any particular claim shall (in addition to other relief to which it or he may be awarded) be entitled to recover his or its attorney’s fees in a\nreasonable amount incurred in connection with such claim.\n(h) Successors. This Agreement and all rights of the parties hereunder shall inure to the benefit of, and be enforceable by, such parties’\npersonal or legal representatives, executors, administrators, successors, heirs and assigns, as applicable.\n(i) Entire Agreement. This Agreement, together with the other agreements and any documents, instruments and certificates referred to herein,\nconstitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes any and all prior discussions,\nnegotiations, proposals, undertakings, understandings and agreements, whether written or oral, with respect to the subject matter contained herein.\nIN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as\nof the day and year first above written.\nSAVVIS, INC.\nEXECUTIVE\nBy: /s/ Mary Ann Altergott\nBy: /s/ Thomas T. Riley\nName: Mary Ann Altergott\nName: Thomas T. Riley\nTitle: Senior Vice President, Corporate Services\n9\nSchedule A\nWelsh, Carson, Anderson & Stowe VIII L.P.\nWCAS Management Corporation\nAffiliates of the foregoing\n10	EX-10.34 5 dex1034.htm EMPLOYMENT, CONFIDENTIALITY, SEVERENCE AND NON-COMPETITION\nAGREEMENT\nExhibit 10.34\nEMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT\nTHIS EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT (this “Agreement”) is\nentered into as of January 9, 2009 by and between Thomas T. Riley (the “Executive”) and SAVVIS, INC., a Delaware corporation, and all its\nsubsidiaries (collectively referred to as the “Company”). Capitalized terms used but not defined herein have the respective meanings ascribed to such\nterms in Section 7 of this Agreement.\nWHEREAS, Executive acknowledges that:\n. the Company and its Affiliates are and will be engaged in a number of highly competitive lines of business.\n. the Company and its Affiliates conduct business throughout the United States and in numerous foreign countries;\n. the Company and its Affiliates possess Confidential Information and customer goodwill that provide the Company and its\nAffiliates with a significant competitive advantage; and\n. the Company’s and its Affiliates’ success depends to a substantial extent upon the protection of its Confidential Information\n(which includes trade secrets and customer lists) and customer goodwill by all of their employees;\n. Executive has and will continue to have possession of Confidential Information; and\nWHEREAS, if Executive were to leave the Company, the Company and its Affiliates would in all fairness need certain protections to\nprevent competitors from gaining an unfair competitive advantage over them.\nNOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Term of Agreement. This Agreement will remain in effect from the date hereof until the date the Executive’s employment with the Company\nterminates for any reason. The following provisions shall survive termination or expiration of this Agreement for any reason, to the extent applicable\nand in accordance with their terms: Sections 4, 5, 6 and 8. Executive’s employment is “at-will”, and nothing contained herein shall be deemed a\nguarantee of employment with Company for any period of time.\n \n2. Capacity and Performance.\n(a) During the term hereof, the Executive shall serve the Company in the position to which he or she is appointed from time to time.\nExecutive’s position as of the date of this Agreement is January 26, 2009. During the term hereof, Executive will be employed by the Company on a\nfull-time basis and shall perform the duties and responsibilities of his or her position and such other duties and responsibilities on behalf of the\nCompany and its Affiliates, reasonably related to that position, as may be designated from time to time by the Compensation Committee (the\n“Compensation Committee”) of the Board of Directors of the Company (the “Board”) or other designee.\n(b) During the term hereof, the Executive shall devote his full business time and his best efforts, business judgment, skill and knowledge to the\nadvancement of the business and interests of the Company and its Affiliates and to the discharge of his duties and responsibilities hereunder. The\nExecutive shall not engage in any other business activity or serve in any industry, trade, professional, governmental or academic position during the\nterm of this Agreement, except as may otherwise be expressly approved in advance by the Compensation Committee or other designee in writing.\n3. Compensation and Benefits. As compensation for all services performed by the Executive under and during the term hereof, and subject to\nperformance of the Executive’s duties and the fulfillment of the obligations of the Executive to the Company and its Affiliates, pursuant to this\nAgreement or otherwise:\n(a) Base Salary. During the term hereof, the Company shall pay the Executive a base salary, which as of the date of execution of this\nAgreement is set at the rate of three hundred twenty five thousand dollars ($325,000.00) per annum, payable in accordance with the regular payroll\npractices of the Company for its executives subject to adjustment from time to time by the Compensation Committee, in its sole discretion. Such\nbase salary, as from time to time adjusted, is hereafter referred to as the “Base Salary”.\n(b) Incentive and Bonus Compensation.\n(i) For service rendered during the Company’s fiscal year ending December 31, 2009, the Executive will be eligible, at the Compensation\nCommittee’s discretion, to receive a bonus payment equal to 50% of Base Salary, payable in accordance with the terms of the Company’s 2009\nAnnual Incentive Plan. For the remainder of the term hereof, the Executive shall be entitled to participate in the Company’s Annual Incentive Plan\n(the “Annual Incentive Plan”) on terms to be determined annually by the Compensation Committee prior to the commencement of each fiscal year.\nNothing contained herein shall obligate the Company to continue the Annual Incentive Plan. Any compensation paid to the Executive under the\nAnnual Incentive Plan shall be in addition to the Base Salary. Except as otherwise expressly provided under the terms of the Annual Incentive Plan\nor this Agreement, the Executive shall not be entitled to earn bonus or other compensation for services rendered to the Company.\n(ii) Stock Options. Subject to approval by the Compensation Committee, the Company shall grant to the Executive an option to purchase\n250,000 shares of the common stock, $.01 par value, of the Company under the SAVVIS, Inc. Amended and Restated 2003 Incentive Compensation\nPlan (the “Plan”) at an exercise price per share equal to the public market closing price on the business day immediately prior to the date of grant\n(the “Option”). These options shall be non-qualified stock options to the extend permitted by the Plan and applicable law. The shares that are subject\nto the Option shall vest at the rate of twenty-five percent (25%) per year on each of the first four (4) anniversaries of the grant date; provided that the\nExecutive is still employed by the Company on each such vesting date. Vesting of the Option is also subject to the terms of Section 4(c)(ii) of this\nAgreement. Except as may be modified by the terms of this Agreement, the Option and all other options granted to the Executive by the Company\nshall be subject to the terms of the Plan and any applicable option certificate and shareholder and/or option holder agreements and other restrictions\nand limitations generally applicable to equity held by Company executives or otherwise required by law.\n4. Termination of Employment.\n(a) Executive’s employment with the Company may be terminated as follows:\n@ by the Company with Cause;\n(ii) by the Company without Cause;\n(iii)  upon Executive’s death or Disability (defined herein);\n(iv) by Executive with Good Reason; or\n) by Executive without Good Reason.\n(b) Upon termination of Executive’s employment for any reason, all rights and obligations under this Agreement shall cease, except as referred\nto in Section 1 and except that Executive shall be entitled to (i) payment of his or her salary through the effective date of termination, plus\n(ii) payment of any other amounts owed but not yet paid to Executive as of the effective date of termination (such as reimbursement for business\nexpenses incurred prior to termination in accordance with the Company’s expense and reimbursement policy, plus (iii) any other benefits to which\nExecutive may be entitled which provide for payment or other benefits following termination (such as under disability insurance plan).\n2\n(c) Severance Benefits.\n(i) If the Executive is subject to termination pursuant to an Involuntary Termination (as defined in Section 7), then in addition to any\namounts / benefits owed under Section 4(b), the Company shall pay the Executive: (x) an amount equal to 100% of his or her then current annual\nBase Salary for one year, plus (y) at the discretion of the Compensation Committee, a pro-rated portion of the bonus that the Executive would be\nentitled to receive under the Company’s Annual Incentive Plan (“Bonus™). The pro-rated Bonus will be calculated by the compensation committee\nby extrapolating the Company’s anticipated full year performance based on the current year performance to date and then multiplying the resulting\nfull year extrapolation a fraction the numerator of which is the number of days during the calendar year the Executive worked in the year of\nInvoluntary Termination up to the termination date and the denominator of which is 365 (the amounts paid under (i) and (ii) constitute the\n“Severance Payment”). If the Executive is subject to an Involuntary Termination prior to March 31 of any calendar year, and has, therefore, not yet\nreceived payment for the prior year under the Annual Incentive Plan, then the Executive will also be entitled to such payment under the Annual\nIncentive Plan as he would otherwise have been entitled to receive had he remained employed on March 31 of the year of Involuntary Termination.\n(ii) Further, if and only if the Involuntary Termination occurs within twelve (12) months of a Change in Control (a “Change in Control\nTermination”), then (x) in addition to the Severance Payment, any stock awards, stock options, stock appreciation rights or other equity-based\nawards (each an “Equity Award”) that were outstanding immediately prior to the effective date of the Change in Control Termination shall, provided\nsuch Equity Awards are assumed by the acquirer in such Change in Control, to the extent not then vested, fully vest and become exercisable as of the\nsuch date and the Executive shall have the right to exercise any such Equity Award until the earlier to occur of (A) twelve (12) months from the date\nof the Change in Control Termination and (B) the expiration date of such Equity Award as set forth in the agreement evidencing such award; and\n(y) the Executive shall be entitled to the Bonus.\n(d) Timing of and Conditions to Payment. Any Severance Payment due under Section 4(c) shall be paid bi-monthly, in accordance with the\nCompany’s standard payroll procedures, for the twelve (12) month period following the effective date of termination. Any other provision of this\nAgreement notwithstanding, no severance benefits shall be payable unless and until each of the following has occurred:\n(i) the Executive has executed and delivered to the Company a general release (in a form prescribed by the Company) of all known and\nunknown claims that he or she may then have against the Company or persons affiliated with the Company and has agreed not to prosecute any legal\naction or other proceeding based upon any of such claims;\n(ii) the Executive has, no later than the effective date of termination, delivered to the Company a resignation from all offices,\ndirectorships and fiduciary positions with the Company and it affiliates;\n(iii) the effective date of the Executive’s Involuntary Termination;\n(iv) the date of the Company’s receipt of the Executive’s executed General Release, which must be no later than 21 days following the\neffective date of termination (except in the case of group terminations, such time period shall be 45 days);\n(v) the expiration of any rescission or revocation period applicable to the Executive’s executed General Release; and\n(vi) the Executive is and continues to be in compliance with all of his or her obligations under this Agreement, including, without\nlimitation, Sections 5 and 6, and under the agreements and other documents referred to or incorporated by reference herein.\nThe Company will commence payment of the Severance Payment within ten (10) business days of satisfaction / occurrence of the last of the\nforegoing items (1) through (5). For purposes of Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), an installment\nSeverance Payment shall be deemed to be made as of the applicable bimonthly payroll date following the Executive’s effective date of termination if\nmade by the 15th day of the third calendar month following such payroll date.\n3\n(e) Health Care Benefit. If the Executive elects to continue his or her health insurance coverage under the Consolidated Omnibus Budget\nReconciliation Act (“COBRA”) following an Involuntary Termination, then in addition to the benefits noted above, the Company shall pay the\nExecutive’s monthly premium under COBRA until the earliest of (i) the close of the twelve-month period following cessation of his or her\nemployment or (ii) the expiration of the Executive’s continuation coverage under COBRA.\n(f) Withholding Taxes. All payments made under this Agreement shall be subject to reduction to reflect taxes or other charges required to be\nwithheld by law.\n \n(g) Section 409A Savings Clause. If any compensation or benefits provided by this Agreement may result in the application of Section 409A of\nthe Code, the Company shall, in consultation with the Executive, modify the Agreement in the least restrictive manner necessary in order to exclude\nsuch compensation from the definition of “deferred compensation” within the meaning of such Section 409A or in order to comply with the\nprovisions of Section 409A, other applicable provision(s) of the Code and/or any rules, regulations or other regulatory guidance issued under such\nstatutory provisions and without any diminution in the value of the payments to the Executive.\n \nAmounts payable other than those expressly payable on a deferred or installment basis, will be paid as promptly as practical and, in any\nevent, within 2 1/2 months after the end of the year in which such amount was earned.\nAny amount that the Executive is entitled to be reimbursed will be reimbursed as promptly as practical and in any event not later than the\nlast day of the calendar year after the calendar year in which the expenses are incurred, and the amount of the expenses eligible for reimbursement\nduring any calendar year will not affect the amount of expenses eligible for reimbursement in any other calendar year.\nIf at the time of separation from service (i) the Executive is a specified employee (within the meaning of Section 409A and using the identification\nmethodology selected by the Company from time to time), and (ii) the Company makes a good faith determination that an amount payable by the\nCompany to the Executive constitutes deferred compensation (within the meaning of Section 409A) the payment of which is required to be delayed\npursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A, then the Company will not\npay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on the first business day after such six-month period\ntogether with interest for the period of delay, compounded annually, equal to the prime rate (as published in the Wall Street Journal) in effect as of\nthe dates the payments should otherwise have been provided.\n5. Confidential Information.\n(a) The Executive acknowledges that the Company and its Affiliates continually develop Confidential Information, that the Executive may\ndevelop Confidential Information for the Company or its Affiliates and that the Executive will have possession of and access to Confidential\nInformation during the course of employment. The Executive will comply with the policies and procedures of the Company and its Affiliates for\nprotecting Confidential Information, and shall not disclose to any Person or use, other than as required by applicable law or for the proper\nperformance of his duties and responsibilities to the Company and its Affiliates, any Confidential Information obtained by the Executive incident to\nhis employment or other association with the Company or any of its Affiliates. The Executive understands that this restriction shall continue to apply\nafter his employment terminates, regardless of the reason for such termination. The confidentiality obligation under this Section 5 shall not apply to\ninformation which is generally known or readily available to the public at the time of disclosure or becomes generally known through no wrongful\nact on the part of the Executive or any other Person having an obligation of confidentiality to the Company or any of its Affiliates.\n(b) All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company\nor its Affiliates and any copies, in whole or in part, thereof (the “Documents”), whether or not prepared by the Executive, shall be the sole and\nexclusive property of the Company and its Affiliates. The Executive shall safeguard all Documents and shall surrender to the Company at the time\nhis employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive’s\npossession or control.\n(c) In the event that Executive is requested or becomes legally compelled (by oral questions, interrogatories, requests for information or\ndocuments, deposition, subpoena, civil investigative demand or similar process) to disclose any of the Confidential Information, the Executive shall,\nwhere permitted under applicable law, rule or regulation, provide written notice to the Company promptly after such request so that the Company\nmay, at its expense, seek a protective order or other appropriate remedy (the Executive agrees to reasonably cooperate with the Company in\nconnection with seeking such order or other remedy). In the event that such protective order or other remedy is not obtained, the Executive shall\nfurnish only that portion of the Confidential Information that the Executive is advised by counsel is required, and shall exercise reasonable efforts to\nobtain assurance that confidential treatment will be accorded such Confidential Information. In addition, the Executive may disclose Confidential\nInformation in the course of inspections, examinations or inquiries by federal or state regulatory agencies and self regulatory organizations that have\nrequested or required the inspection of records that contain the Confidential Information provided that the Executive exercises reasonable efforts to\nobtain reliable assurances that confidential treatment will be accorded to such Confidential Information. To the extent such information is required to\nbe disclosed and is not accorded confidential treatment as described in the immediately preceding sentence, it shall not constitute “Confidential\nInformation” under this Agreement.\n6. Certain Covenants.\n(a) The Executive agrees that, during his employment with the Company, he or she will not undertake any outside activity, whether or not\ncompetitive with the business of the Company or its Affiliates that could reasonably give rise to a conflict of interest or otherwise materially interfere\nwith his or her duties and obligations to the Company or any of its Affiliates.\n(b) During the term of Executive’s employment and for twelve (12) months following termination of his or her employment for any reason (the\n“Restricted Period”), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or\notherwise:\n(i) compete with the Company or any of its Affiliates within the geographic area in which the Company does business or undertake any\nplanning for any business competitive with the Company or any of its Affiliates. Specifically, but without limiting the foregoing, the Executive\nagrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Affiliates\nas conducted or under consideration at any time during the Executive’s employment, and further agrees not to work or provide services, in any\ncapacity, whether as an employee, independent contractor or otherwise, whether with or without compensation, to any Person who is engaged in any\nbusiness that is competitive with the business of the Company or any of its Affiliates for which the Executive has provided services. The foregoing,\nhowever, shall not prevent the Executive’s passive ownership of two percent (2%) or less of the equity securities of any publicly traded company.\nNotwithstanding any provision in this Agreement, section 6. (b) (i) shall not be deemed to create post-employment non-competition restrictions on\nEmployee if Employee’s primary residence is in the state of California; or\n(ii) solicit or encourage any customer of the Company or any of its Affiliates to terminate or diminish its relationship with them; or\n(iii) seek to persuade any such customer of the Company or any of its Affiliates to conduct with anyone else any business or activity\nwhich such customer conducts with the Company or any of its Affiliates; provided that these restrictions shall apply only if the Executive has\nperformed work for such Person during his employment with the Company or one of its Affiliates or has been introduced to, or otherwise had\ncontact with, such Person as a result of his employment or other associations with the Company or one of its Affiliates or has had access to\nConfidential Information which would assist in the Executive’s solicitation of such Person.\n(iv) solicit for hiring any employee or independent contractor of the Company or any of its Affiliates or seek to persuade any employee\nor independent contractor of the Company or any of its Affiliates to discontinue or diminish such employee or independent contractor’s relationship\nwith the Company or any of its Affiliates.\n(c) Cooperation and Non-Disparagement. The Executive agrees that, during the Restricted Period, he or she shall cooperate with the Company\nin every reasonable respect and shall use his or her best efforts to assist the Company with the transition of the Executive’s duties to his or her\nsuccessor. The Executive further agrees that, during the Restricted Period, he or she shall not in any way or by any means disparage the Company,\nthe members of the Company’s Board or the Company’s officers and employees.\n(d) Assignment of Inventions. The Executive shall promptly and fully disclose all Work Product (defined herein) to the Company. Executive\nhereby assigns to the Company all of Executive’s rights, title, and interest (including but not limited to all patent, trademark, copyright and trade\nsecret rights) in and to all work product prepared by Executive, made or conceived in whole or in part by Executive within the scope of Executive’s\nemployment by the Company or within six (6) months thereafter, or that relate directly to or involve the use of Confidential Information (“Work\nProduct”). Executive further acknowledges and agrees that all copyrightable Work Product prepared by Executive within the scope of Executive’s\nemployment with the Company are “works made for hire” and, consequently, that the Company owns all copyrights thereto. The Executive agrees to\nexecute any and all applications for domestic and foreign patents, copyrights or other proprietary rights and to do such other acts (including without\nlimitation the execution and delivery of instruments of further assurance or confirmation) requested by the Company to assign the Work Product to\nthe Company and to permit the Company to enforce any patents, copyrights or other proprietary rights to the Work Product. The Executive will not\ncharge the Company for time spent in complying with these obligations. Notwithstanding the foregoing, any provision in this Agreement which\nprovides that Executive shall assign, offer to assign, any of his or her rights in an invention to the Company shall not apply to an invention that the\nExecutive developed entirely on his or her own time without using the Company’s equipment, supplies, facilities, or trade secret information except\nfor those inventions that either:\n(i) relate at the time of conception or reduction to practice of the invention to the Company’s business or actual demonstrably anticipated\nresearch or development of the Company; or\n(ii) result from any work performed by the Executive for the Company.\n(e) Acknowledgement Regarding Restrictions. The Company has expended a great deal of time, money and effort to develop and maintain its\nconfidential business information which, if misused or disclosed, could be very harmful to its business and could cause the Company to be at a\ncompetitive disadvantage in the marketplace. The Company would not be willing to proceed with the execution of this Agreement but for the\nExecutive’s signing and agreeing to abide by the terms of this Agreement. The Executive recognizes and acknowledges that he or she has and will\nhave access to Confidential Information of the Company, and that the Company, in all fairness, needs certain protection in order to ensure that the\nExecutive does not misappropriate or misuse any trade secret or other Confidential Information or take any other action which could result in a loss\nof the goodwill of the Company and, more generally, to prevent the Executive from having or providing others with an unfair competitive advantage\nover the Company. To that end, the Executive acknowledges that the foregoing restrictions, both separately and in total, are reasonable and\nenforceable in view of the Company’s legitimate interests in protecting the goodwill, confidential information and customer loyalty of its business.\nTo the extent that any provision of this Agreement is adjudicated to be invalid or unenforceable because it is somehow overbroad or otherwise\nunreasonable, that provision shall not be void but rather shall be limited only to the extent required by applicable law and enforced as so limited to\nthe greatest extent allowed by law, and the validity or enforceability of the remaining provisions of this Agreement shall be unaffected and such\nadjudication shall not affect the validity or enforceability of such remaining provisions.\n(f) Right to Injunctive Relief. The Executive further agrees that in the event of any breach hereof the harm to the Company will be irreparable\nand without adequate remedy at law and, therefore, that injunctive relief with respect thereto will be appropriate. In the event of a breach or\nthreatened breach of any of the Executive’s obligations under the terms of Sections 5 or 6 hereof, the Company shall be entitled, in addition to any\nother legal or equitable remedies it may have in connection therewith (including any right to damages that it may suffer), to temporary, preliminary\nand permanent injunctive relief restraining such breach or threatened breach (without the obligation to post bond), together with reasonable\nattorney’s fees incurred in preliminarily enforcing its rights hereunder. The Executive specifically agrees that if there is a question as to the\nenforceability of any of the provisions of Sections 5 or 6 hereof, the Executive will not engage in any conduct inconsistent with or contrary to such\nSection until after the question has been resolved by a final judgment of a court of competent jurisdiction.\n6\n7. Definitions.\n(a) Definition of “Affiliate.” For all purposes under this Agreement, “Affiliate” shall mean, with respect to any Person, all Persons directly or\nindirectly controlling, controlled by or under common control with such Person, where control may be by either management authority, contract or\nequity interest. As used in this definition, “control” and correlative terms have the meanings ascribed to such words in Rule 12b-2 of the Securities\nExchange Act of 1934, as amended (the “Exchange Act”).\n(b) Definition of “Cause.” For all purposes under this Agreement, “Cause” shall mean any of the following (i) the Executive’s willful and\ncontinued failure to perform substantially the duties of his/her responsibilities (other than due to physical or mental incapacity); (ii) the Executive’s\nunauthorized use or disclosure of trade secrets which causes substantial harm to the Company; (iii) the Executive’s engaging in illegal conduct that is\nlikely to be injurious to the Company; (iv) the Executive’s acts of fraud, dishonesty, or gross misconduct, or gross negligence in connection with the\nbusiness of the Company; (v) the Executive’s conviction of a felony; (vi) the Executive’s engaging in any act of moral turpitude reasonably likely to\nsubstantially and adversely affect the Company or its business; (vii) the Executive engaging in the illegal use of a controlled substance or using\nprescription medications unlawfully; (viii) the Executive’s abuse of alcohol; or (ix) the breach by the Executive of a material term of this Agreement,\nincluding, without limitation, his or her obligations under Sections 5 or 6.\n(c) Definition of “Change in Control.” For all purposes under this Agreement, “Change in Control” shall mean any transaction in which a\nPerson or group (other than a group consisting of one or more of the Persons listed on Schedule A attached hereto and their respective Affiliates)\nbecomes the beneficial owner directly or indirectly (within the meaning of Rule 13d-3 under the Exchange Act) of more than 50% (on a fully-diluted\nbasis) of the total capital stock of the Company’s entitled to vote ordinarily for the election of directors.\n(d) Definition of “Confidential Information.” For all purposes under this Agreement, “Confidential Information” shall mean any and all\ninformation of the Company and its Affiliates that is not generally known by others with whom they compete or do business, or with whom any of\nthem plans to compete or do business and any and all information, publicly known in part or not, which, if disclosed by the Company or its Affiliates\nwould assist in competition against them. Confidential Information includes without limitation such information relating to (i) trade secrets, the\ndevelopment, research, testing, manufacturing, marketing and financial activities of the Company and its Affiliates, (ii) the Products, (iii) the costs,\nsources of supply, financial performance and strategic plans of the Company and its Affiliates, (iv) the identity and special needs of the customers of\nthe Company and its Affiliates and (v) client lists and the people and organizations with whom the Company and its Affiliates have business\nrelationships and the substance of those relationships. Confidential Information also includes any information that the Company or any of its\nAffiliates have received, or may receive hereafter, belonging to customers or others with any understanding, express or implied, that the information\nwould not be disclosed.\n(e) Definition of “Disability.” For all purposes under this Agreement, “Disability” shall mean the Executive becoming disabled during his\nemployment hereunder through any illness, injury, accident or condition of either a physical or psychological nature and, as a result, is unable to\nperform substantially all of his duties and responsibilities hereunder, notwithstanding the provision of any reasonable accommodation, for one\nhundred and eighty (180) days during any period of three hundred and sixty-five (365) consecutive calendar days.\n(f) Definition of “Good Reason.” For all purposes under this Agreement, “Good Reason” shall mean the occurrence of any of the following\nevents, without the Executive’s consent: (i) change in the Executive’s position as officer of the Company that materially reduces his or her authority\nor level of responsibility, (i) a material reduction in his or her level of compensation (including base salary and target bonus) other than pursuant to a\nCompany-wide reduction of compensation, or (iii) a relocation of his or her employment more than 50 miles from the Executive’s office or location\nat the time of resignation.\nTo constitute Good Reason, termination must occur within two (2) years following the initial occurrence of such event; Executive must\nprovide written notice within 90 days of the occurrence to the Company; and if correctable, Company must fail to correct within 30 days of notice of\ntermination.\n(g) Definition of “Intellectual Property.” For all purposes under this Agreement, “Intellectual Property” shall mean inventions, discoveries,\ndevelopments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or constituting trade secrets)\nconceived, made, created, developed or reduced to practice by the Executive (whether alone or with others, whether or not during normal business\nhours or on or off Company premises) during the Executive’s employment and during the period of six (6) months immediately following\ntermination of his employment that relate to either the Products or any prospective activity of the Company or any of its Affiliates or that make use\nof Confidential Information or any of the equipment or facilities of the Company or any of its Affiliates.\n(h) Definition of “Involuntary Termination.” For all purposes under this Agreement, “Involuntary Termination” shall mean termination of\nemployment under Section 4(a)(ii) or Section 4(a)(iv).\n(i) Definition of “Person.” For all purposes under this Agreement, “Person” shall mean an individual, a corporation, a limited liability\ncompany, an association, a partnership, an estate, a trust and any other entity or organization.\n(j) Definition of “Products.” For all purposes under this Agreement, “Products” shall mean all products planned, researched, developed, tested,\nmanufactured, sold, licensed, leased or otherwise distributed or put into use by the Company or any of its Affiliates, together with all services\nprovided or planned by the Company or any of its Affiliates, during the Executive’s employment.\n8. Miscellaneous Provisions.\n(a) Conflicts. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Company document, then\nthe provisions of this Agreement will control. This Agreement will supersede any prior agreement between the Executive and the Company with\nrespect to the subject matters contained herein and may be amended only by a writing signed by an officer of the Company (other than the\nExecutive).\n(b) Notice. Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been duly\ngiven when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid or deposited with\nan overnight courier, with shipping charges prepaid. In the case of the Executive, mailed notices shall be addressed to him or her at the home address\nwhich he or she most recently communicated to the Company in writing. In the case of the Company, mailed notices shall be addressed to its\ncorporate headquarters, and all notices shall be directed to the attention of its Senior Vice President of Human Resources.\n(c) Waiver. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to\nin writing and signed by the Executive and by an authorized officer of the Company (other than the Executive). No waiver by either party of any\nbreach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of any other condition\nor provision or of the same condition or provision at another time.\n \n(d) Severability. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision hereof, which shall remain in full force and effect.\n(e) No Retention Rights. Nothing in this Agreement shall confer upon the Executive any right to continue in service for any period of specific\nduration or to interfere with or otherwise restrict in any way the rights of the Company or any subsidiary of the Company or of the Executive, which\nrights are hereby expressly reserved by each, to terminate his or her service at any time and for any reason, with or without Cause and with or\nwithout notice.\n(f) Choice of Law; Venue. The parties acknowledge that they each have, and will continue to have, substantial contacts with the State of\nMissouri, where the Company has its headquarters. This Agreement has been drafted and negotiated in the State of Missouri. To ensure that any\ndisputes arising under this Agreement are resolved in accordance with the parties’ expectations, this Agreement shall be governed by and construed\nunder the laws of the State of Missouri and applicable federal laws. The substantive law (and statutes of limitations) of the State of Missouri shall be\napplied to disputes arising under this Agreement, as the parties agree that their expectations with respect to the scope and enforcement of this\nAgreement are based on Missouri law, and that Missouri law is therefore more applicable to such disputes. Should Missouri law be found not to\napply to this Agreement for any reason, the parties agree that the severance benefit described in Section 4 shall not be payable, the provisions of\nSection 4 notwithstanding. Each party agrees that any proceeding relating to this Agreement shall be brought in the state courts of Missouri located\nin St. Louis County or the federal courts of the District of Missouri, Eastern Division. Each party hereby consents to personal jurisdiction in any such\naction brought in any such Missouri court, consents to service of process by the methods for notice under Section 8(b) hereof made upon such party,\nand such party’s agent and waives any objection to venue in any such Missouri court or to any claim that any such Missouri court is an inconvenient\nforum.\n(g) Attorney’s Fees. In the event of any action by either party to enforce or interpret the terms of this Agreement, the prevailing party with\nrespect to any particular claim shall (in addition to other relief to which it or he may be awarded) be entitled to recover his or its attorney’s fees in a\nreasonable amount incurred in connection with such claim.\n \n(h) Successors. This Agreement and all rights of the parties hereunder shall inure to the benefit of, and be enforceable by, such parties’\npersonal or legal representatives, executors, administrators, successors, heirs and assigns, as applicable.\n(i) Entire Agreement. This Agreement, together with the other agreements and any documents, instruments and certificates referred to herein,\nconstitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes any and all prior discussions,\nnegotiations, proposals, undertakings, understandings and agreements, whether written or oral, with respect to the subject matter contained herein.\nIN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as\nof the day and year first above written.\nSAVVIS, INC. EXECUTIVE\nBy:  /s/ Mary Ann Altergott By: /s/ Thomas T. Riley\nName: Mary Ann Altergott Name: Thomas T. Riley\nTitle: Senior Vice President, Corporate Services\nSchedule A\nWelsh, Carson, Anderson & Stowe VIII L.P.\nWCAS Management Corporation\nAffiliates of the foregoing\n10	EX-10.34 5 x1034.htm EMPLOYMENT, CONFIDENTIALITY, SEVERENCE AND NON-COMPETITION\nAGREEMENT\nExhibit 10.34\nEMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT\nTHIS EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT (this "Agreement") is\nentered into as of January 9, 2009 by and between Thomas T. Riley (the "Executive") and SAVVIS, INC., a Delaware corporation, and all its\nsubsidiaries (collectively referred to as the "Company"). Capitalized terms used but not defined herein have the respective meanings ascribed to such\nterms in Section 7 of this Agreement.\nWHEREAS, Executive acknowledges that:\nthe Company and its Affiliates are and will be engaged in a number of highly competitive lines of business.\nthe Company and its Affiliates conduct business throughout the United States and in numerous foreign countries;\nthe Company and its Affiliates possess Confidential Information and customer goodwill that provide the Company and its\nAffiliates with a significant competitive advantage; and\nthe Company's and its Affiliates' success depends to a substantial extent upon the protection of its Confidential Information\n(which includes trade secrets and customer lists) and customer goodwill by all of their employees;\nExecutive has and will continue to have possession of Confidential Information; and\nWHEREAS, if Executive were to leave the Company, the Company and its Affiliates would in all fairness need certain protections to\nprevent competitors from gaining an unfair competitive advantage over them.\nNOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Term of Agreement. This Agreement will remain in effect from the date hereof until the date the Executive's employment with the Company\nterminates for any reason. The following provisions shall survive termination or expiration of this Agreement for any reason, to the extent applicable\nand in accordance with their terms: Sections 4, 5, 6 and 8. Executive's employment is "at-will", and nothing contained herein shall be deemed a\nguarantee of employment with Company for any period of time.\n2. Capacity and Performance.\n(a) During the term hereof, the Executive shall serve the Company in the position to which he or she is appointed from time to time.\nExecutive's position as of the date of this Agreement is January 26, 2009. During the term hereof, Executive will be employed by the Company on a\nfull-time basis and shall perform the duties and responsibilities of his or her position and such other duties and responsibilities on behalf of the\nCompany and its Affiliates, reasonably related to that position, as may be designated from time to time by the Compensation Committee (the\n"Compensation Committee") of the Board of Directors of the Company (the "Board") or other designee.\n(b) During the term hereof, the Executive shall devote his full business time and his best efforts, business judgment, skill and knowledge to the\nadvancement of the business and interests of the Company and its Affiliates and to the discharge of his duties and responsibilities hereunder. The\nExecutive shall not engage in any other business activity or serve in any industry, trade, professional, governmental or academic position during the\nterm of this Agreement, except as may otherwise be expressly approved in advance by the Compensation Committee or other designee in writing.\n3. Compensation and Benefits. As compensation for all services performed by the Executive under and during the term hereof, and subject to\nperformance of the Executive's duties and the fulfillment of the obligations of the Executive to the Company and its Affiliates, pursuant to this\nAgreement or otherwise:\n(a) Base Salary.. During the term hereof, the Company shall pay the Executive a base salary, which as of the date of execution of this\nAgreement\nis\nset\nat\nthe\nrate\nof\nthree\nhundred\ntwenty\nfive\nthousand\ndollars\n($325,000.00)\nper\nannum,\npayable\nin\naccordance\nwith\nthe\nregular\npayroll\npractices of the Company for its executives subject to adjustment from time to time by the Compensation Committee, in its sole discretion. Such\nbase salary, as from time to time adjusted, is hereafter referred to as the "Base Salary".\n(b) Incentive and Bonus Compensation.\n(i) For service rendered during the Company's fiscal year ending December 31, 2009, the Executive will be eligible, at the Compensation\nCommittee's discretion, to receive a bonus payment equal to 50% of Base Salary, payable in accordance with the terms of the Company's 2009\nAnnual Incentive Plan. For the remainder of the term hereof, the Executive shall be entitled to participate in the Company's Annual Incentive Plan\n(the "Annual Incentive Plan") on terms to be determined annually by the Compensation Committee prior to the commencement of each fiscal year.\nNothing contained herein shall obligate the Company to continue the Annual Incentive Plan. Any compensation paid to the Executive under the\nAnnual Incentive Plan shall be in addition to the Base Salary. Except as otherwise expressly provided under the terms of the Annual Incentive Plan\nor this Agreement, the Executive shall not be entitled to earn bonus or other compensation for services rendered to the Company.\n(ii) Stock Options. Subject to approval by the Compensation Committee, the Company shall grant to the Executive an option to purchase\n250,000 shares of the common stock, $.01 par value, of the Company under the SAVVIS, Inc. Amended and Restated 2003 Incentive Compensation\nPlan (the "Plan") at an exercise price per share equal to the public market closing price on the business day immediately prior to the date of grant\n(the "Option"). These options shall be non-qualified stock options to the extend permitted by the Plan and applicable law. The shares that are subject\nto\nthe\nOption shall vest at the rate of twenty-five percent (25%) per year on each of the first four (4) anniversaries of the grant date; provided that the\nExecutive is still employed by the Company on each such vesting date. Vesting of the Option is also subject to the terms of Section 4(c)(ii) of this\nAgreement. Except as may be modified by the terms of this Agreement, the Option and all other options granted to the Executive by the Company\nshall be subject to the terms of the Plan and any applicable option certificate and shareholder and/or option holder agreements and other restrictions\nand limitations generally applicable to equity held by Company executives or otherwise required by law.\n4. Termination of Employment.\n(a) Executive's employment with the Company may be terminated as follows:\n(i)\nby the Company with Cause;\n(ii)\nby the Company without Cause;\n(iii)\nupon Executive's death or Disability (defined herein);\n(iv)\nby Executive with Good Reason; or\n(v)\nby Executive without Good Reason.\n(b) Upon termination of Executive's employment for any reason, all rights and obligations under this Agreement shall cease, except as referred\nto in Section 1 and except that Executive shall be entitled to (i) payment of his or her salary through the effective date of termination, plus\n(ii) payment of any other amounts owed but not yet paid to Executive as of the effective date of termination (such as reimbursement for business\nexpenses incurred prior to termination in accordance with the Company's expense and reimbursement policy, plus (iii) any other benefits to which\nExecutive may be entitled which provide for payment or other benefits following termination (such as under disability insurance plan).\n2\n(c) Severance Benefits.\n(i) If the Executive is subject to termination pursuant to an Involuntary Termination (as defined in Section 7), then in addition to any\namounts benefits owed under Section 4(b), the Company shall pay the Executive: (x) an amount equal to 100% of his or her then current annual\nBase Salary for one year, plus (y) at the discretion of the Compensation Committee, a pro-rated portion of the bonus that the Executive would be\nentitled\nto\nreceive under the Company's Annual Incentive Plan ("Bonus"). The pro-rated Bonus will be calculated by the compensation committee\nby extrapolating the Company's anticipated full year performance based on the current year performance to date and then multiplying the resulting\nfull year extrapolation a fraction the numerator of which is the number of days during the calendar year the Executive worked in the year of\nInvoluntary Termination up to the termination date and the denominator of which is 365 (the amounts paid under (i) and (ii) constitute the\n"Severance Payment"). If the Executive is subject to an Involuntary Termination prior to March 31 of any calendar year, and has, therefore, not yet\nreceived payment for the prior year under the Annual Incentive Plan, then the Executive will also be entitled to such payment under the Annual\nIncentive Plan as he would otherwise have been entitled to receive had he remained employed on March 31 of the year of Involuntary Termination.\n(ii) Further, if and only if the Involuntary Termination occurs within twelve (12) months of a Change in Control (a "Change in Control\nTermination"), then (x) in addition to the Severance Payment, any stock awards, stock options, stock appreciation rights or other equity-based\nawards (each an "Equity Award") that were outstanding immediately prior to the effective date of the Change in Control Termination shall, provided\nsuch Equity Awards are assumed by the acquirer in such Change in Control, to the extent not then vested, fully vest and become exercisable as of\nthe\nsuch date and the Executive shall have the right to exercise any such Equity Award until the earlier to occur of (A) twelve (12) months from the date\nof the Change in Control Termination and (B) the expiration date of such Equity Award as set forth in the agreement evidencing such award; and\n(y) the Executive shall be entitled to the Bonus.\n(d) Timing of and Conditions to Payment. Any Severance Payment due under Section 4(c) shall be paid bi-monthly, in accordance with the\nCompany's standard payroll procedures, for the twelve (12) month period following the effective date of termination. Any other provision of this\nAgreement notwithstanding, no severance benefits shall be payable unless and until each of the following has occurred:\n(i) the Executive has executed and delivered to the Company a general release (in a form prescribed by the Company) of all known and\nunknown claims that he or she may then have against the Company or persons affiliated with the Company and has agreed not to prosecute any legal\naction or other proceeding based upon any of such claims;\n(ii) the Executive has, no later than the effective date of termination, delivered to the Company a resignation from all offices,\ndirectorships and fiduciary positions with the Company and it affiliates;\n(iii) the effective date of the Executive's Involuntary Termination;\n(iv) the date of the Company's receipt of the Executive's executed General Release, which must be no later than 21 days following\nthe\neffective date of termination (except in the case of group terminations, such time period shall be 45 days);\n(v) the expiration of any rescission or revocation period applicable to the Executive's executed General Release; and\n(vi) the Executive is and continues to be in compliance with all of his or her obligations under this Agreement, including, without\nlimitation, Sections 5 and 6, and under the agreements and other documents referred to or incorporated by reference herein.\nThe Company will commence payment of the Severance Payment within ten (10) business days of satisfaction / occurrence of the last of the\nforegoing items (1) through (5). For purposes of Section 409A of the Internal Revenue Code of 1986, as amended ("Code"), an installment\nSeverance Payment shall be deemed to be made as of the applicable bimonthly payroll date following the Executive's effective date of termination\nif\nmade by the 15th day of the third calendar month following such payroll date.\n3\n(e) Health Care Benefit. If the Executive elects to continue his or her health insurance coverage under the Consolidated Omnibus Budget\nReconciliation Act ("COBRA") following an Involuntary Termination, then in addition to the benefits noted above, the Company shall pay the\nExecutive's monthly premium under COBRA until the earliest of (i) the close of the twelve-month period following cessation of his or her\nemployment or (ii) the expiration of the Executive's continuation coverage under COBRA.\n(f) Withholding Taxes. All payments made under this Agreement shall be subject to reduction to reflect taxes or other charges required to be\nwithheld by law.\n(g) Section 409A Savings Clause. If any compensation or benefits provided by this Agreement may result in the application of Section 409A of\nthe Code, the Company shall, in consultation with the Executive, modify the Agreement in the least restrictive manner necessary in order to exclude\nsuch compensation from the definition of "deferred compensation" within the meaning of such Section 409A or in order to comply with the\nprovisions of Section 409A, other applicable provision(s) of the Code and/or any rules, regulations or other regulatory guidance issued under such\nstatutory provisions and without any diminution in the value of the payments to the Executive.\nAmounts payable other than those expressly payable on a deferred or installment basis, will be paid as promptly as practical and, in any\nevent, within 21/2 months after the end of the year in which such amount was earned.\nAny amount that the Executive is entitled to be reimbursed will be reimbursed as promptly as practical and in any event not later than the\nlast day of the calendar year after the calendar year in which the expenses are incurred, and the amount of the expenses eligible for reimbursement\nduring any calendar year will not affect the amount of expenses eligible for reimbursement in any other calendar year.\nIf at the time of separation from service (i) the Executive is a specified employee (within the meaning of Section 409A and using the identification\nmethodology selected by the Company from time to time), and (ii) the Company makes a good faith determination that an amount payable by the\nCompany\nto\nthe Executive constitutes deferred compensation (within the meaning of Section 409A) the payment of which is required to be delayed\npursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A, then the Company will not\npay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on the first business day after such six-month period\ntogether with interest for the period of delay, compounded annually, equal to the prime rate (as published in the Wall Street Journal) in effect as of\nthe dates the payments should otherwise have been provided.\n5. Confidential Information.\n(a) The Executive acknowledges that the Company and its Affiliates continually develop Confidential Information, that the Executive may\ndevelop Confidential Information for the Company or its Affiliates and that the Executive will have possession of and access to Confidential\nInformation during the course of employment. The Executive will comply with the policies and procedures of the Company and its Affiliates for\nprotecting Confidential Information, and shall not disclose to any Person or use, other than as required by applicable law or for the proper\nperformance of his duties and responsibilities to the Company and its Affiliates, any Confidential Information obtained by the Executive incident\nto\nhis employment or other association with the Company or any of its Affiliates. The Executive understands that this restriction shall continue to apply\nafter his employment terminates, regardless of the reason for such termination. The confidentiality obligation under this Section 5 shall not apply to\ninformation which is generally known or readily available to the public at the time of disclosure or becomes generally known through no wrongful\nact on the part of the Executive or any other Person having an obligation of confidentiality to the Company or any of its Affiliates.\n(b) All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company\nor its Affiliates and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be the sole and\nexclusive property of the Company and its Affiliates. The Executive shall safeguard all Documents and shall surrender to the Company at the time\nhis employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive's\npossession or control.\n4\n(c) In the event that Executive is requested or becomes legally compelled (by oral questions, interrogatories, requests for information or\ndocuments, deposition, subpoena, civil investigative demand or similar process) to disclose any of the Confidential Information, the Executive shall,\nwhere permitted under applicable law, rule or regulation, provide written notice to the Company promptly after such request so that the Company\nmay, at its expense, seek a protective order or other appropriate remedy (the Executive agrees to reasonably cooperate with the Company in\nconnection with seeking such order or other remedy). In the event that such protective order or other remedy is not obtained, the Executive shall\nfurnish only that portion of the Confidential Information that the Executive is advised by counsel is required, and shall exercise reasonable efforts\nto\nobtain assurance that confidential treatment will be accorded such Confidential Information. In addition, the Executive may disclose Confidential\nInformation in the course of inspections, examinations or inquiries by federal or state regulatory agencies and self regulatory organizations that have\nrequested or required the inspection of records that contain the Confidential Information provided that the Executive exercises reasonable efforts to\nobtain reliable assurances that confidential treatment will be accorded to such Confidential Information. To the extent such information is required to\nbe disclosed and is not accorded confidential treatment as described in the immediately preceding sentence, it shall not constitute "Confidential\nInformation" under this Agreement.\n6. Certain Covenants.\n(a) The Executive agrees that, during his employment with the Company, he or she will not undertake any outside activity, whether or not\ncompetitive with the business of the Company or its Affiliates that could reasonably give rise to a conflict of interest or otherwise materially interfere\nwith his or her duties and obligations to the Company or any of its Affiliates.\n(b) During the term of Executive's employment and for twelve (12) months following termination of his or her employment for any reason (the\n"Restricted Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or\notherwise:\n(i) compete with the Company or any of its Affiliates within the geographic area in which the Company does business or undertake any\nplanning for any business competitive with the Company or any of its Affiliates. Specifically, but without limiting the foregoing, the Executive\nagrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Affiliates\nas conducted or under consideration at any time during the Executive's employment, and further agrees not to work or provide services, in any\ncapacity, whether as an employee, independent contractor or otherwise, whether with or without compensation, to any Person who is engaged in any\nbusiness that is competitive with the business of the Company or any of its Affiliates for which the Executive has provided services. The foregoing,\nhowever, shall not prevent the Executive's passive ownership of two percent (2%) or less of the equity securities of any publicly traded company.\nNotwithstanding any provision in this Agreement, section 6. (b) (i) shall not be deemed to create post-employment non-competition restrictions\non\nEmployee if Employee's primary residence is in the state of California; or\n(ii) solicit or encourage any customer of the Company or any of its Affiliates to terminate or diminish its relationship with them; or\n(iii) seek to persuade any such customer of the Company or any of its Affiliates to conduct with anyone else any business or activity\nwhich such customer conducts with the Company or any of its Affiliates; provided that these restrictions shall apply only if the Executive has\nperformed work for such Person during his employment with the Company or one of its Affiliates or has been introduced to, or otherwise had\ncontact with, such Person as a result of his employment or other associations with the Company or one of its Affiliates or has had access to\nConfidential Information which would assist in the Executive's solicitation of such Person.\n(iv) solicit for hiring any employee or independent contractor of the Company or any of its Affiliates or seek to persuade any employee\nor independent contractor of the Company or any of its Affiliates to discontinue or diminish such employee or independent contractor's relationship\nwith the Company or any of its Affiliates.\n5\n(c) Cooperation and Non-Disparagement. The Executive agrees that, during the Restricted Period, he or she shall cooperate with the Company\nin every reasonable respect and shall use his or her best efforts to assist the Company with the transition of the Executive's duties to his or her\nsuccessor. The Executive further agrees that, during the Restricted Period, he or she shall not in any way or by any means disparage the Company,\nthe members of the Company's Board or the Company's officers and employees.\n(d)\nAssignment of Inventions. The Executive shall promptly and fully disclose all Work Product (defined herein) to\nthe\nCompany.\nExecutive\nhereby assigns to the Company all of Executive's rights, title, and interest (including but not limited to all patent, trademark, copyright and trade\nsecret rights) in and to all work product prepared by Executive, made or conceived in whole or in part by Executive within the scope of Executive's\nemployment by the Company or within six (6) months thereafter, or that relate directly to or involve the use of Confidential Information ("Work\nProduct"). Executive further acknowledges and agrees that all copyrightable Work Product prepared by Executive within the scope of Executive's\nemployment with the Company are "works made for hire" and, consequently, that the Company owns all copyrights thereto. The Executive agrees\nto\nexecute any and all applications for domestic and foreign patents, copyrights or other proprietary rights and to do such other acts (including without\nlimitation the execution and delivery of instruments of further assurance or confirmation) requested by the Company to assign the Work Product to\nthe Company and to permit the Company to enforce any patents, copyrights or other proprietary rights to the Work Product. The Executive will not\ncharge the Company for time spent in complying with these obligations. Notwithstanding the foregoing, any provision in this Agreement which\nprovides that Executive shall assign, offer to assign, any of his or her rights in an invention to the Company shall not apply to an invention that the\nExecutive developed entirely on his or her own time without using the Company's equipment, supplies, facilities, or trade secret information except\nfor those inventions that either:\n(i) relate at the time of conception or reduction to practice of the invention to the Company's business or actual demonstrably anticipated\nresearch or development of the Company; or\n(ii) result from any work performed by the Executive for the Company.\n(e) Acknowledgement RegardingRe Restrictions The Company has expended a great deal of time, money and effort to develop and maintain its\nconfidential business information which, if misused or disclosed, could be very harmful to its business and could cause the Company to be at a\ncompetitive disadvantage in the marketplace. The Company would not be willing to proceed with the execution of this Agreement but for the\nExecutive's signing and agreeing to abide by the terms of this Agreement. The Executive recognizes and acknowledges that he or she has and will\nhave access to Confidential Information of the Company, and that the Company, in all fairness, needs certain protection in order to ensure that the\nExecutive does not misappropriate or misuse any trade secret or other Confidential Information or take any other action which could result in a loss\nof the goodwill of the Company and, more generally, to prevent the Executive from having or providing others with an unfair competitive advantage\nover the Company. To that end, the Executive acknowledges that the foregoing restrictions, both separately and in total, are reasonable and\nenforceable in view of the Company's legitimate interests in protecting the goodwill, confidential information and customer loyalty of its business.\nTo the extent that any provision of this Agreement is adjudicated to be invalid or unenforceable because it is somehow overbroad or otherwise\nunreasonable, that provision shall not be void but rather shall be limited only to the extent required by applicable law and enforced as so limited to\nthe greatest extent allowed by law, and the validity or enforceability of the remaining provisions of this Agreement shall be unaffected and such\nadjudication shall not affect the validity or enforceability of such remaining provisions.\n(f) Right to Injunctive Relief. The Executive further agrees that in the event of any breach hereof the harm to the Company will be irreparable\nand without adequate remedy at law and, therefore, that injunctive relief with respect thereto will be appropriate. In the event of a breach or\nthreatened breach of any of the Executive's obligations under the terms of Sections 5 or 6 hereof, the Company shall be entitled, in addition to any\nother legal or equitable remedies it may have in connection therewith (including any right to damages that it may suffer), to temporary, preliminary\nand permanent injunctive relief restraining such breach or threatened breach (without the obligation to post bond), together with reasonable\nattorney's fees incurred in preliminarily enforcing its rights hereunder. The Executive specifically agrees that if there is a question as to the\nenforceability of any of the provisions of Sections 5 or 6 hereof, the Executive will not engage in any conduct inconsistent with or contrary to such\nSection until after the question has been resolved by a final judgment of a court of competent jurisdiction.\n6\n7. Definitions.\n(a) Definition of "Affiliate." For all purposes under this Agreement, "Affiliate" shall mean, with respect to any Person, all Persons directly or\nindirectly controlling, controlled by or under common control with such Person, where control may be by either management authority, contract or\nequity interest. As used in this definition, "control" and correlative terms have the meanings ascribed to such words in Rule 12b-2 of the Securities\nExchange Act of 1934, as amended (the "Exchange Act").\n(b) Definition of "Cause." For all purposes under this Agreement, "Cause" shall mean any of the following (i) the Executive's willful and\ncontinued failure to perform substantially the duties of his/her responsibilities (other than due to physical or mental incapacity); (ii) the Executive's\nunauthorized use or disclosure of trade secrets which causes substantial harm to the Company; (iii) the Executive's engaging in illegal conduct that\nis\nlikely to be injurious to the Company; (iv) the Executive's acts of fraud, dishonesty, or gross misconduct, or gross negligence in connection with the\nbusiness of the Company; (v) the Executive's conviction of a felony; (vi) the Executive's engaging in any act of moral turpitude reasonably likely\nto\nsubstantially and adversely affect the Company or its business; (vii) the Executive engaging in the illegal use of a controlled substance or using\nprescription medications unlawfully; (vili) the Executive's abuse of alcohol; or (ix) the breach by the Executive of a material term of this Agreement,\nincluding, without limitation, his or her obligations under Sections 5 or 6.\n(c) Definition of "Change in Control." For all purposes under this Agreement, "Change in Control" shall mean any transaction in which a\nPerson or group (other than a group consisting of one or more of the Persons listed on Schedule A attached hereto and their respective Affiliates)\nbecomes the beneficial owner directly or indirectly (within the meaning of Rule 13d-3 under the Exchange Act) of more than 50% (on a fully-diluted\nbasis) of the total capital stock of the Company's entitled to vote ordinarily for the election of directors.\n(d) Definition of "Confidential Information." For all purposes under this Agreement, "Confidential Information" shall mean any and all\ninformation of the Company and its Affiliates that is not generally known by others with whom they compete or do business, or with whom any of\nthem plans to compete or do business and any and all information, publicly known in part or not, which, if disclosed by the Company or its Affiliates\nwould assist in competition against them. Confidential Information includes without limitation such information relating to (i) trade secrets, the\ndevelopment, research, testing, manufacturing, marketing and financial activities of the Company and its Affiliates, (ii) the Products, (iii) the costs,\nsources of supply, financial performance and strategic plans of the Company and its Affiliates, (iv) the identity and special needs of the customers of\nthe Company and its Affiliates and (v) client lists and the people and organizations with whom the Company and its Affiliates have business\nrelationships and the substance of those relationships. Confidential Information also includes any information that the Company or any of its\nAffiliates have received, or may receive hereafter, belonging to customers or others with any understanding, express or implied, that the information\nwould not be disclosed.\n(e) Definition of "Disability.." For all purposes under this Agreement, "Disability" shall mean the Executive becoming disabled during his\nemployment hereunder through any illness, injury, accident or condition of either a physical or psychological nature and, as a result, is unable to\nperform substantially all of his duties and responsibilities hereunder, notwithstanding the provision of any reasonable accommodation, for one\nhundred and eighty (180) days during any period of three hundred and sixty-five (365) consecutive calendar days.\n(f) Definition of "Good Reason." For all purposes under this Agreement, "Good Reason" shall mean the occurrence of any of the following\nevents, without the Executive's consent: (i) change in the Executive's position as officer of the Company that materially reduces his or her authority\nor level of responsibility, (ii) a material reduction in his or her level of compensation (including base salary and target bonus) other than pursuant\nto\na\nCompany-wide reduction of compensation, or (iii) a relocation of his or her employment more than 50 miles from the Executive's office or location\nat the time of resignation.\n7\nTo constitute Good Reason, termination must occur within two (2) years following the initial occurrence of such event; Executive must\nprovide written notice within 90 days of the occurrence to the Company; and if correctable, Company must fail to correct within 30 days of notice of\ntermination.\n(g) Definition of "Intellectual Property." For all purposes under this Agreement, "Intellectual Property" shall mean inventions, discoveries,\ndevelopments,\nmethods,\nprocesses,\ncompositions,\nworks,\nconcepts\nand\nideas\n(whether\nor\nnot\npatentable\nor\ncopyrightable\nor\nconstituting\ntrade\nsecrets)\nconceived, made, created, developed or reduced to practice by the Executive (whether alone or with others, whether or not during normal business\nhours or on or off Company premises) during the Executive's employment and during the period of six (6) months immediately following\ntermination of his employment that relate to either the Products or any prospective activity of the Company or any of its Affiliates or that make use\nof Confidential Information or any of the equipment or facilities of the Company or any of its Affiliates.\n(h) Definition of "Involuntary. Termination." For all purposes under this Agreement, "Involuntary Termination" shall mean termination of\nemployment under Section 4(a)(ii) or Section 4(a)(iv).\n(i) Definition of "Person." For all purposes under this Agreement, "Person" shall mean an individual, a corporation, a limited liability\ncompany, an association, a partnership, an estate, a trust and any other entity or organization.\n(j)\nDefinition of "Products." For all purposes under this Agreement, "Products" shall mean all products planned, researched, developed, tested,\nmanufactured, sold, licensed, leased or otherwise distributed or put into use by the Company or any of its Affiliates, together with all services\nprovided or planned by the Company or any of its Affiliates, during the Executive's employment.\n8. Miscellaneous Provisions.\n(a) Conflicts. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Company document, then\nthe\nprovisions\nof\nthis\nAgreement\nwill\ncontrol.\nThis\nAgreement\nwill\nsupersede\nany\nprior\nagreement\nbetween\nthe\nExecutive\nand\nthe\nCompany\nwith\nrespect to the subject matters contained herein and may be amended only by a writing signed by an officer of the Company (other than the\nExecutive).\n(b) Notice. Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been duly\ngiven when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid or deposited with\nan\novernight courier, with shipping charges prepaid. In the case of the Executive, mailed notices shall be addressed to him or her at the home address\nwhich he or she most recently communicated to the Company in writing. In the case of the Company, mailed notices shall be addressed to\nits\ncorporate headquarters, and all notices shall be directed to the attention of its Senior Vice President of Human Resources.\n(c) Waiver. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to\nin writing and signed by the Executive and by an authorized officer of the Company (other than the Executive). No waiver by either party of any\nbreach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of any other condition\nor provision or of the same condition or provision at another time.\n(d) Severability.. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision hereof, which shall remain in full force and effect.\n(e) No Retention Rights. Nothing in this Agreement shall confer upon the Executive any right to continue in service for any period of specific\nduration or to interfere with or otherwise restrict in any way the rights of the Company or any subsidiary of the Company or of the Executive, which\nrights are hereby expressly reserved by each, to terminate his or her service at any time and for any reason, with or without Cause and with or\nwithout notice.\n8\n(f) Choice of Law; Venue. The parties acknowledge that they each have, and will continue to have, substantial contacts with the State of\nMissouri, where the Company has its headquarters. This Agreement has been drafted and negotiated in the State of Missouri. To ensure that any\ndisputes arising under this Agreement are resolved in accordance with the parties' expectations, this Agreement shall be governed by and construed\nunder the laws of the State of Missouri and applicable federal laws. The substantive law (and statutes of limitations) of the State of Missouri shall be\napplied to disputes arising under this Agreement, as the parties agree that their expectations with respect to the scope and enforcement of this\nAgreement are based on Missouri law, and that Missouri law is therefore more applicable to such disputes. Should Missouri law be found not to\napply to this Agreement for any reason, the parties agree that the severance benefit described in Section 4 shall not be payable, the provisions of\nSection 4 notwithstanding. Each party agrees that any proceeding relating to this Agreement shall be brought in the state courts of Missouri located\nin St. Louis County or the federal courts of the District of Missouri, Eastern Division. Each party hereby consents to personal jurisdiction in any such\naction brought in any such Missouri court, consents to service of process by the methods for notice under Section 8(b) hereof made upon such party,\nand such party's agent and waives any objection to venue in any such Missouri court or to any claim that any such Missouri court is an inconvenient\nforum.\n(g)\nAttorney's Fees. In the event of any action by either party to enforce or interpret the terms of this Agreement, the prevailing party with\nrespect to any particular claim shall (in addition to other relief to which it or he may be awarded) be entitled to recover his or its attorney's fees in a\nreasonable amount incurred in connection with such claim.\n(h) Successors. This Agreement and all rights of the parties hereunder shall inure to the benefit of, and be enforceable by, such parties'\npersonal or legal representatives, executors, administrators, successors, heirs and assigns, as applicable.\n(i)\nEntire Agreement This Agreement, together with the other agreements and any documents, instruments and certificates referred to herein,\nconstitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes any and all prior discussions,\nnegotiations, proposals, undertakings, understandings and agreements, whether written or oral, with respect to the subject matter contained herein.\nIN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as\nof the day and year first above written.\nSAVVIS, INC.\nEXECUTIVE\nBy:\n/s/ Mary Ann Altergott\nBy:\n/s/ Thomas T. Riley\nName: Mary Ann Altergott\nName: Thomas T. Riley\nTitle: Senior Vice President, Corporate Services\n9\nSchedule A\nWelsh, Carson, Anderson & Stowe VIII L.P.\nWCAS Management Corporation\nAffiliates of the foregoing\n10	EX-10.34 5 dex1034.htm EMPLOYMENT, CONFIDENTIALITY, SEVERENCE AND NON-COMPETITION\nAGREEMENT\nExhibit 10.34\nEMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT\nTHIS EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT (this “Agreement”) is\nentered into as of January 9, 2009 by and between Thomas T. Riley (the “Executive”) and SAVVIS, INC., a Delaware corporation, and all its\nsubsidiaries (collectively referred to as the “Company”). Capitalized terms used but not defined herein have the respective meanings ascribed to such\nterms in Section 7 of this Agreement.\nWHEREAS, Executive acknowledges that:\n•\nthe Company and its Affiliates are and will be engaged in a number of highly competitive lines of business.\n•\nthe Company and its Affiliates conduct business throughout the United States and in numerous foreign countries;\n•\nthe Company and its Affiliates possess Confidential Information and customer goodwill that provide the Company and its\nAffiliates with a significant competitive advantage; and\n•\nthe Company’s and its Affiliates’ success depends to a substantial extent upon the protection of its Confidential Information\n(which includes trade secrets and customer lists) and customer goodwill by all of their employees;\n•\nExecutive has and will continue to have possession of Confidential Information; and\nWHEREAS, if Executive were to leave the Company, the Company and its Affiliates would in all fairness need certain protections to\nprevent competitors from gaining an unfair competitive advantage over them.\nNOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Term of Agreement. This Agreement will remain in effect from the date hereof until the date the Executive’s employment with the Company\nterminates for any reason. The following provisions shall survive termination or expiration of this Agreement for any reason, to the extent applicable\nand in accordance with their terms: Sections 4, 5, 6 and 8. Executive’s employment is “at-will”, and nothing contained herein shall be deemed a\nguarantee of employment with Company for any period of time.\n2. Capacity and Performance.\n(a) During the term hereof, the Executive shall serve the Company in the position to which he or she is appointed from time to time.\nExecutive’s position as of the date of this Agreement is January 26, 2009. During the term hereof, Executive will be employed by the Company on a\nfull-time basis and shall perform the duties and responsibilities of his or her position and such other duties and responsibilities on behalf of the\nCompany and its Affiliates, reasonably related to that position, as may be designated from time to time by the Compensation Committee (the\n“Compensation Committee”) of the Board of Directors of the Company (the “Board”) or other designee.\n(b) During the term hereof, the Executive shall devote his full business time and his best efforts, business judgment, skill and knowledge to the\nadvancement of the business and interests of the Company and its Affiliates and to the discharge of his duties and responsibilities hereunder. The\nExecutive shall not engage in any other business activity or serve in any industry, trade, professional, governmental or academic position during the\nterm of this Agreement, except as may otherwise be expressly approved in advance by the Compensation Committee or other designee in writing.\n3. Compensation and Benefits. As compensation for all services performed by the Executive under and during the term hereof, and subject to\nperformance of the Executive’s duties and the fulfillment of the obligations of the Executive to the Company and its Affiliates, pursuant to this\nAgreement or otherwise:\n(a) Base Salary. During the term hereof, the Company shall pay the Executive a base salary, which as of the date of execution of this\nAgreement is set at the rate of three hundred twenty five thousand dollars ($325,000.00) per annum, payable in accordance with the regular payroll\npractices of the Company for its executives subject to adjustment from time to time by the Compensation Committee, in its sole discretion. Such\nbase salary, as from time to time adjusted, is hereafter referred to as the “Base Salary”.\n(b) Incentive and Bonus Compensation.\n(i) For service rendered during the Company’s fiscal year ending December 31, 2009, the Executive will be eligible, at the Compensation\nCommittee’s discretion, to receive a bonus payment equal to 50% of Base Salary, payable in accordance with the terms of the Company’s 2009\nAnnual Incentive Plan. For the remainder of the term hereof, the Executive shall be entitled to participate in the Company’s Annual Incentive Plan\n(the “Annual Incentive Plan”) on terms to be determined annually by the Compensation Committee prior to the commencement of each fiscal year.\nNothing contained herein shall obligate the Company to continue the Annual Incentive Plan. Any compensation paid to the Executive under the\nAnnual Incentive Plan shall be in addition to the Base Salary. Except as otherwise expressly provided under the terms of the Annual Incentive Plan\nor this Agreement, the Executive shall not be entitled to earn bonus or other compensation for services rendered to the Company.\n(ii) Stock Options. Subject to approval by the Compensation Committee, the Company shall grant to the Executive an option to purchase\n250,000 shares of the common stock, $.01 par value, of the Company under the SAVVIS, Inc. Amended and Restated 2003 Incentive Compensation\nPlan (the “Plan”) at an exercise price per share equal to the public market closing price on the business day immediately prior to the date of grant\n(the “Option”). These options shall be non-qualified stock options to the extend permitted by the Plan and applicable law. The shares that are subject\nto the Option shall vest at the rate of twenty-five percent (25%) per year on each of the first four (4) anniversaries of the grant date; provided that the\nExecutive is still employed by the Company on each such vesting date. Vesting of the Option is also subject to the terms of Section 4(c)(ii) of this\nAgreement. Except as may be modified by the terms of this Agreement, the Option and all other options granted to the Executive by the Company\nshall be subject to the terms of the Plan and any applicable option certificate and shareholder and/or option holder agreements and other restrictions\nand limitations generally applicable to equity held by Company executives or otherwise required by law.\n4. Termination of Employment.\n(a) Executive’s employment with the Company may be terminated as follows:\n(i) by the Company with Cause;\n(ii) by the Company without Cause;\n(iii) upon Executive’s death or Disability (defined herein);\n(iv) by Executive with Good Reason; or\n(v) by Executive without Good Reason.\n(b) Upon termination of Executive’s employment for any reason, all rights and obligations under this Agreement shall cease, except as referred\nto in Section 1 and except that Executive shall be entitled to (i) payment of his or her salary through the effective date of termination, plus\n(ii) payment of any other amounts owed but not yet paid to Executive as of the effective date of termination (such as reimbursement for business\nexpenses incurred prior to termination in accordance with the Company’s expense and reimbursement policy, plus (iii) any other benefits to which\nExecutive may be entitled which provide for payment or other benefits following termination (such as under disability insurance plan).\n2\n(c) Severance Benefits.\n(i) If the Executive is subject to termination pursuant to an Involuntary Termination (as defined in Section 7), then in addition to any\namounts / benefits owed under Section 4(b), the Company shall pay the Executive: (x) an amount equal to 100% of his or her then current annual\nBase Salary for one year, plus (y) at the discretion of the Compensation Committee, a pro-rated portion of the bonus that the Executive would be\nentitled to receive under the Company’s Annual Incentive Plan (“Bonus”). The pro-rated Bonus will be calculated by the compensation committee\nby extrapolating the Company’s anticipated full year performance based on the current year performance to date and then multiplying the resulting\nfull year extrapolation a fraction the numerator of which is the number of days during the calendar year the Executive worked in the year of\nInvoluntary Termination up to the termination date and the denominator of which is 365 (the amounts paid under (i) and (ii) constitute the\n“Severance Payment”). If the Executive is subject to an Involuntary Termination prior to March 31 of any calendar year, and has, therefore, not yet\nreceived payment for the prior year under the Annual Incentive Plan, then the Executive will also be entitled to such payment under the Annual\nIncentive Plan as he would otherwise have been entitled to receive had he remained employed on March 31 of the year of Involuntary Termination.\n(ii) Further, if and only if the Involuntary Termination occurs within twelve (12) months of a Change in Control (a “Change in Control\nTermination”), then (x) in addition to the Severance Payment, any stock awards, stock options, stock appreciation rights or other equity-based\nawards (each an “Equity Award”) that were outstanding immediately prior to the effective date of the Change in Control Termination shall, provided\nsuch Equity Awards are assumed by the acquirer in such Change in Control, to the extent not then vested, fully vest and become exercisable as of the\nsuch date and the Executive shall have the right to exercise any such Equity Award until the earlier to occur of (A) twelve (12) months from the date\nof the Change in Control Termination and (B) the expiration date of such Equity Award as set forth in the agreement evidencing such award; and\n(y) the Executive shall be entitled to the Bonus.\n(d) Timing of and Conditions to Payment. Any Severance Payment due under Section 4(c) shall be paid bi-monthly, in accordance with the\nCompany’s standard payroll procedures, for the twelve (12) month period following the effective date of termination. Any other provision of this\nAgreement notwithstanding, no severance benefits shall be payable unless and until each of the following has occurred:\n(i) the Executive has executed and delivered to the Company a general release (in a form prescribed by the Company) of all known and\nunknown claims that he or she may then have against the Company or persons affiliated with the Company and has agreed not to prosecute any legal\naction or other proceeding based upon any of such claims;\n(ii) the Executive has, no later than the effective date of termination, delivered to the Company a resignation from all offices,\ndirectorships and fiduciary positions with the Company and it affiliates;\n(iii) the effective date of the Executive’s Involuntary Termination;\n(iv) the date of the Company’s receipt of the Executive’s executed General Release, which must be no later than 21 days following the\neffective date of termination (except in the case of group terminations, such time period shall be 45 days);\n(v) the expiration of any rescission or revocation period applicable to the Executive’s executed General Release; and\n(vi) the Executive is and continues to be in compliance with all of his or her obligations under this Agreement, including, without\nlimitation, Sections 5 and 6, and under the agreements and other documents referred to or incorporated by reference herein.\nThe Company will commence payment of the Severance Payment within ten (10) business days of satisfaction / occurrence of the last of the\nforegoing items (1) through (5). For purposes of Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), an installment\nSeverance Payment shall be deemed to be made as of the applicable bimonthly payroll date following the Executive’s effective date of termination if\nmade by the 15th day of the third calendar month following such payroll date.\n3\n(e) Health Care Benefit. If the Executive elects to continue his or her health insurance coverage under the Consolidated Omnibus Budget\nReconciliation Act (“COBRA”) following an Involuntary Termination, then in addition to the benefits noted above, the Company shall pay the\nExecutive’s monthly premium under COBRA until the earliest of (i) the close of the twelve-month period following cessation of his or her\nemployment or (ii) the expiration of the Executive’s continuation coverage under COBRA.\n(f) Withholding Taxes. All payments made under this Agreement shall be subject to reduction to reflect taxes or other charges required to be\nwithheld by law.\n(g) Section 409A Savings Clause. If any compensation or benefits provided by this Agreement may result in the application of Section 409A of\nthe Code, the Company shall, in consultation with the Executive, modify the Agreement in the least restrictive manner necessary in order to exclude\nsuch compensation from the definition of “deferred compensation” within the meaning of such Section 409A or in order to comply with the\nprovisions of Section 409A, other applicable provision(s) of the Code and/or any rules, regulations or other regulatory guidance issued under such\nstatutory provisions and without any diminution in the value of the payments to the Executive.\nAmounts payable other than those expressly payable on a deferred or installment basis, will be paid as promptly as practical and, in any\nevent, within 2 /2 months after the end of the year in which such amount was earned.\nAny amount that the Executive is entitled to be reimbursed will be reimbursed as promptly as practical and in any event not later than the\nlast day of the calendar year after the calendar year in which the expenses are incurred, and the amount of the expenses eligible for reimbursement\nduring any calendar year will not affect the amount of expenses eligible for reimbursement in any other calendar year.\nIf at the time of separation from service (i) the Executive is a specified employee (within the meaning of Section 409A and using the identification\nmethodology selected by the Company from time to time), and (ii) the Company makes a good faith determination that an amount payable by the\nCompany to the Executive constitutes deferred compensation (within the meaning of Section 409A) the payment of which is required to be delayed\npursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A, then the Company will not\npay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on the first business day after such six-month period\ntogether with interest for the period of delay, compounded annually, equal to the prime rate (as published in the Wall Street Journal) in effect as of\nthe dates the payments should otherwise have been provided.\n5. Confidential Information.\n(a) The Executive acknowledges that the Company and its Affiliates continually develop Confidential Information, that the Executive may\ndevelop Confidential Information for the Company or its Affiliates and that the Executive will have possession of and access to Confidential\nInformation during the course of employment. The Executive will comply with the policies and procedures of the Company and its Affiliates for\nprotecting Confidential Information, and shall not disclose to any Person or use, other than as required by applicable law or for the proper\nperformance of his duties and responsibilities to the Company and its Affiliates, any Confidential Information obtained by the Executive incident to\nhis employment or other association with the Company or any of its Affiliates. The Executive understands that this restriction shall continue to apply\nafter his employment terminates, regardless of the reason for such termination. The confidentiality obligation under this Section 5 shall not apply to\ninformation which is generally known or readily available to the public at the time of disclosure or becomes generally known through no wrongful\nact on the part of the Executive or any other Person having an obligation of confidentiality to the Company or any of its Affiliates.\n(b) All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the Company\nor its Affiliates and any copies, in whole or in part, thereof (the “Documents”), whether or not prepared by the Executive, shall be the sole and\nexclusive property of the Company and its Affiliates. The Executive shall safeguard all Documents and shall surrender to the Company at the time\nhis employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then in the Executive’s\npossession or control.\n4\n1\n(c) In the event that Executive is requested or becomes legally compelled (by oral questions, interrogatories, requests for information or\ndocuments, deposition, subpoena, civil investigative demand or similar process) to disclose any of the Confidential Information, the Executive shall,\nwhere permitted under applicable law, rule or regulation, provide written notice to the Company promptly after such request so that the Company\nmay, at its expense, seek a protective order or other appropriate remedy (the Executive agrees to reasonably cooperate with the Company in\nconnection with seeking such order or other remedy). In the event that such protective order or other remedy is not obtained, the Executive shall\nfurnish only that portion of the Confidential Information that the Executive is advised by counsel is required, and shall exercise reasonable efforts to\nobtain assurance that confidential treatment will be accorded such Confidential Information. In addition, the Executive may disclose Confidential\nInformation in the course of inspections, examinations or inquiries by federal or state regulatory agencies and self regulatory organizations that have\nrequested or required the inspection of records that contain the Confidential Information provided that the Executive exercises reasonable efforts to\nobtain reliable assurances that confidential treatment will be accorded to such Confidential Information. To the extent such information is required to\nbe disclosed and is not accorded confidential treatment as described in the immediately preceding sentence, it shall not constitute “Confidential\nInformation” under this Agreement.\n6. Certain Covenants.\n(a) The Executive agrees that, during his employment with the Company, he or she will not undertake any outside activity, whether or not\ncompetitive with the business of the Company or its Affiliates that could reasonably give rise to a conflict of interest or otherwise materially interfere\nwith his or her duties and obligations to the Company or any of its Affiliates.\n(b) During the term of Executive’s employment and for twelve (12) months following termination of his or her employment for any reason (the\n“Restricted Period”), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee, co-venturer or\notherwise:\n(i) compete with the Company or any of its Affiliates within the geographic area in which the Company does business or undertake any\nplanning for any business competitive with the Company or any of its Affiliates. Specifically, but without limiting the foregoing, the Executive\nagrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company or any of its Affiliates\nas conducted or under consideration at any time during the Executive’s employment, and further agrees not to work or provide services, in any\ncapacity, whether as an employee, independent contractor or otherwise, whether with or without compensation, to any Person who is engaged in any\nbusiness that is competitive with the business of the Company or any of its Affiliates for which the Executive has provided services. The foregoing,\nhowever, shall not prevent the Executive’s passive ownership of two percent (2%) or less of the equity securities of any publicly traded company.\nNotwithstanding any provision in this Agreement, section 6. (b) (i) shall not be deemed to create post-employment non-competition restrictions on\nEmployee if Employee’s primary residence is in the state of California; or\n(ii) solicit or encourage any customer of the Company or any of its Affiliates to terminate or diminish its relationship with them; or\n(iii) seek to persuade any such customer of the Company or any of its Affiliates to conduct with anyone else any business or activity\nwhich such customer conducts with the Company or any of its Affiliates; provided that these restrictions shall apply only if the Executive has\nperformed work for such Person during his employment with the Company or one of its Affiliates or has been introduced to, or otherwise had\ncontact with, such Person as a result of his employment or other associations with the Company or one of its Affiliates or has had access to\nConfidential Information which would assist in the Executive’s solicitation of such Person.\n(iv) solicit for hiring any employee or independent contractor of the Company or any of its Affiliates or seek to persuade any employee\nor independent contractor of the Company or any of its Affiliates to discontinue or diminish such employee or independent contractor’s relationship\nwith the Company or any of its Affiliates.\n5\n(c) Cooperation and Non-Disparagement. The Executive agrees that, during the Restricted Period, he or she shall cooperate with the Company\nin every reasonable respect and shall use his or her best efforts to assist the Company with the transition of the Executive’s duties to his or her\nsuccessor. The Executive further agrees that, during the Restricted Period, he or she shall not in any way or by any means disparage the Company,\nthe members of the Company’s Board or the Company’s officers and employees.\n(d) Assignment of Inventions. The Executive shall promptly and fully disclose all Work Product (defined herein) to the Company. Executive\nhereby assigns to the Company all of Executive’s rights, title, and interest (including but not limited to all patent, trademark, copyright and trade\nsecret rights) in and to all work product prepared by Executive, made or conceived in whole or in part by Executive within the scope of Executive’s\nemployment by the Company or within six (6) months thereafter, or that relate directly to or involve the use of Confidential Information (“Work\nProduct”). Executive further acknowledges and agrees that all copyrightable Work Product prepared by Executive within the scope of Executive’s\nemployment with the Company are “works made for hire” and, consequently, that the Company owns all copyrights thereto. The Executive agrees to\nexecute any and all applications for domestic and foreign patents, copyrights or other proprietary rights and to do such other acts (including without\nlimitation the execution and delivery of instruments of further assurance or confirmation) requested by the Company to assign the Work Product to\nthe Company and to permit the Company to enforce any patents, copyrights or other proprietary rights to the Work Product. The Executive will not\ncharge the Company for time spent in complying with these obligations. Notwithstanding the foregoing, any provision in this Agreement which\nprovides that Executive shall assign, offer to assign, any of his or her rights in an invention to the Company shall not apply to an invention that the\nExecutive developed entirely on his or her own time without using the Company’s equipment, supplies, facilities, or trade secret information except\nfor those inventions that either:\n(i) relate at the time of conception or reduction to practice of the invention to the Company’s business or actual demonstrably anticipated\nresearch or development of the Company; or\n(ii) result from any work performed by the Executive for the Company.\n(e) Acknowledgement Regarding Restrictions. The Company has expended a great deal of time, money and effort to develop and maintain its\nconfidential business information which, if misused or disclosed, could be very harmful to its business and could cause the Company to be at a\ncompetitive disadvantage in the marketplace. The Company would not be willing to proceed with the execution of this Agreement but for the\nExecutive’s signing and agreeing to abide by the terms of this Agreement. The Executive recognizes and acknowledges that he or she has and will\nhave access to Confidential Information of the Company, and that the Company, in all fairness, needs certain protection in order to ensure that the\nExecutive does not misappropriate or misuse any trade secret or other Confidential Information or take any other action which could result in a loss\nof the goodwill of the Company and, more generally, to prevent the Executive from having or providing others with an unfair competitive advantage\nover the Company. To that end, the Executive acknowledges that the foregoing restrictions, both separately and in total, are reasonable and\nenforceable in view of the Company’s legitimate interests in protecting the goodwill, confidential information and customer loyalty of its business.\nTo the extent that any provision of this Agreement is adjudicated to be invalid or unenforceable because it is somehow overbroad or otherwise\nunreasonable, that provision shall not be void but rather shall be limited only to the extent required by applicable law and enforced as so limited to\nthe greatest extent allowed by law, and the validity or enforceability of the remaining provisions of this Agreement shall be unaffected and such\nadjudication shall not affect the validity or enforceability of such remaining provisions.\n(f) Right to Injunctive Relief. The Executive further agrees that in the event of any breach hereof the harm to the Company will be irreparable\nand without adequate remedy at law and, therefore, that injunctive relief with respect thereto will be appropriate. In the event of a breach or\nthreatened breach of any of the Executive’s obligations under the terms of Sections 5 or 6 hereof, the Company shall be entitled, in addition to any\nother legal or equitable remedies it may have in connection therewith (including any right to damages that it may suffer), to temporary, preliminary\nand permanent injunctive relief restraining such breach or threatened breach (without the obligation to post bond), together with reasonable\nattorney’s fees incurred in preliminarily enforcing its rights hereunder. The Executive specifically agrees that if there is a question as to the\nenforceability of any of the provisions of Sections 5 or 6 hereof, the Executive will not engage in any conduct inconsistent with or contrary to such\nSection until after the question has been resolved by a final judgment of a court of competent jurisdiction.\n6\n7. Definitions.\n(a) Definition of “Affiliate.” For all purposes under this Agreement, “Affiliate” shall mean, with respect to any Person, all Persons directly or\nindirectly controlling, controlled by or under common control with such Person, where control may be by either management authority, contract or\nequity interest. As used in this definition, “control” and correlative terms have the meanings ascribed to such words in Rule 12b-2 of the Securities\nExchange Act of 1934, as amended (the “Exchange Act”).\n(b) Definition of “Cause.” For all purposes under this Agreement, “Cause” shall mean any of the following (i) the Executive’s willful and\ncontinued failure to perform substantially the duties of his/her responsibilities (other than due to physical or mental incapacity); (ii) the Executive’s\nunauthorized use or disclosure of trade secrets which causes substantial harm to the Company; (iii) the Executive’s engaging in illegal conduct that is\nlikely to be injurious to the Company; (iv) the Executive’s acts of fraud, dishonesty, or gross misconduct, or gross negligence in connection with the\nbusiness of the Company; (v) the Executive’s conviction of a felony; (vi) the Executive’s engaging in any act of moral turpitude reasonably likely to\nsubstantially and adversely affect the Company or its business; (vii) the Executive engaging in the illegal use of a controlled substance or using\nprescription medications unlawfully; (viii) the Executive’s abuse of alcohol; or (ix) the breach by the Executive of a material term of this Agreement,\nincluding, without limitation, his or her obligations under Sections 5 or 6.\n(c) Definition of “Change in Control.” For all purposes under this Agreement, “Change in Control” shall mean any transaction in which a\nPerson or group (other than a group consisting of one or more of the Persons listed on Schedule A attached hereto and their respective Affiliates)\nbecomes the beneficial owner directly or indirectly (within the meaning of Rule 13d-3 under the Exchange Act) of more than 50% (on a fully-diluted\nbasis) of the total capital stock of the Company’s entitled to vote ordinarily for the election of directors.\n(d) Definition of “Confidential Information.” For all purposes under this Agreement, “Confidential Information” shall mean any and all\ninformation of the Company and its Affiliates that is not generally known by others with whom they compete or do business, or with whom any of\nthem plans to compete or do business and any and all information, publicly known in part or not, which, if disclosed by the Company or its Affiliates\nwould assist in competition against them. Confidential Information includes without limitation such information relating to (i) trade secrets, the\ndevelopment, research, testing, manufacturing, marketing and financial activities of the Company and its Affiliates, (ii) the Products, (iii) the costs,\nsources of supply, financial performance and strategic plans of the Company and its Affiliates, (iv) the identity and special needs of the customers of\nthe Company and its Affiliates and (v) client lists and the people and organizations with whom the Company and its Affiliates have business\nrelationships and the substance of those relationships. Confidential Information also includes any information that the Company or any of its\nAffiliates have received, or may receive hereafter, belonging to customers or others with any understanding, express or implied, that the information\nwould not be disclosed.\n(e) Definition of “Disability.” For all purposes under this Agreement, “Disability” shall mean the Executive becoming disabled during his\nemployment hereunder through any illness, injury, accident or condition of either a physical or psychological nature and, as a result, is unable to\nperform substantially all of his duties and responsibilities hereunder, notwithstanding the provision of any reasonable accommodation, for one\nhundred and eighty (180) days during any period of three hundred and sixty-five (365) consecutive calendar days.\n(f) Definition of “Good Reason.” For all purposes under this Agreement, “Good Reason” shall mean the occurrence of any of the following\nevents, without the Executive’s consent: (i) change in the Executive’s position as officer of the Company that materially reduces his or her authority\nor level of responsibility, (ii) a material reduction in his or her level of compensation (including base salary and target bonus) other than pursuant to a\nCompany-wide reduction of compensation, or (iii) a relocation of his or her employment more than 50 miles from the Executive’s office or location\nat the time of resignation.\n7\nTo constitute Good Reason, termination must occur within two (2) years following the initial occurrence of such event; Executive must\nprovide written notice within 90 days of the occurrence to the Company; and if correctable, Company must fail to correct within 30 days of notice of\ntermination.\n(g) Definition of “Intellectual Property.” For all purposes under this Agreement, “Intellectual Property” shall mean inventions, discoveries,\ndevelopments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or constituting trade secrets)\nconceived, made, created, developed or reduced to practice by the Executive (whether alone or with others, whether or not during normal business\nhours or on or off Company premises) during the Executive’s employment and during the period of six (6) months immediately following\ntermination of his employment that relate to either the Products or any prospective activity of the Company or any of its Affiliates or that make use\nof Confidential Information or any of the equipment or facilities of the Company or any of its Affiliates.\n(h) Definition of “Involuntary Termination.” For all purposes under this Agreement, “Involuntary Termination” shall mean termination of\nemployment under Section 4(a)(ii) or Section 4(a)(iv).\n(i) Definition of “Person.” For all purposes under this Agreement, “Person” shall mean an individual, a corporation, a limited liability\ncompany, an association, a partnership, an estate, a trust and any other entity or organization.\n(j) Definition of “Products.” For all purposes under this Agreement, “Products” shall mean all products planned, researched, developed, tested,\nmanufactured, sold, licensed, leased or otherwise distributed or put into use by the Company or any of its Affiliates, together with all services\nprovided or planned by the Company or any of its Affiliates, during the Executive’s employment.\n8. Miscellaneous Provisions.\n(a) Conflicts. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Company document, then\nthe provisions of this Agreement will control. This Agreement will supersede any prior agreement between the Executive and the Company with\nrespect to the subject matters contained herein and may be amended only by a writing signed by an officer of the Company (other than the\nExecutive).\n(b) Notice. Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been duly\ngiven when personally delivered or when mailed by U.S . registered or certified mail, return receipt requested and postage prepaid or deposited with\nan overnight courier, with shipping charges prepaid. In the case of the Executive, mailed notices shall be addressed to him or her at the home address\nwhich he or she most recently communicated to the Company in writing. In the case of the Company, mailed notices shall be addressed to its\ncorporate headquarters, and all notices shall be directed to the attention of its Senior Vice President of Human Resources.\n(c) Waiver. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed to\nin writing and signed by the Executive and by an authorized officer of the Company (other than the Executive). No waiver by either party of any\nbreach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of any other condition\nor provision or of the same condition or provision at another time.\n(d) Severability. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision hereof, which shall remain in full force and effect.\n(e) No Retention Rights. Nothing in this Agreement shall confer upon the Executive any right to continue in service for any period of specific\nduration or to interfere with or otherwise restrict in any way the rights of the Company or any subsidiary of the Company or of the Executive, which\nrights are hereby expressly reserved by each, to terminate his or her service at any time and for any reason, with or without Cause and with or\nwithout notice.\n8\n(f) Choice of Law; Venue. The parties acknowledge that they each have, and will continue to have, substantial contacts with the State of\nMissouri, where the Company has its headquarters. This Agreement has been drafted and negotiated in the State of Missouri. To ensure that any\ndisputes arising under this Agreement are resolved in accordance with the parties’ expectations, this Agreement shall be governed by and construed\nunder the laws of the State of Missouri and applicable federal laws. The substantive law (and statutes of limitations) of the State of Missouri shall be\napplied to disputes arising under this Agreement, as the parties agree that their expectations with respect to the scope and enforcement of this\nAgreement are based on Missouri law, and that Missouri law is therefore more applicable to such disputes. Should Missouri law be found not to\napply to this Agreement for any reason, the parties agree that the severance benefit described in Section 4 shall not be payable, the provisions of\nSection 4 notwithstanding. Each party agrees that any proceeding relating to this Agreement shall be brought in the state courts of Missouri located\nin St. Louis County or the federal courts of the District of Missouri, Eastern Division. Each party hereby consents to personal jurisdiction in any such\naction brought in any such Missouri court, consents to service of process by the methods for notice under Section 8(b) hereof made upon such party,\nand such party’s agent and waives any objection to venue in any such Missouri court or to any claim that any such Missouri court is an inconvenient\nforum.\n(g) Attorney’s Fees. In the event of any action by either party to enforce or interpret the terms of this Agreement, the prevailing party with\nrespect to any particular claim shall (in addition to other relief to which it or he may be awarded) be entitled to recover his or its attorney’s fees in a\nreasonable amount incurred in connection with such claim.\n(h) Successors. This Agreement and all rights of the parties hereunder shall inure to the benefit of, and be enforceable by, such parties’\npersonal or legal representatives, executors, administrators, successors, heirs and assigns, as applicable.\n(i) Entire Agreement. This Agreement, together with the other agreements and any documents, instruments and certificates referred to herein,\nconstitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes any and all prior discussions,\nnegotiations, proposals, undertakings, understandings and agreements, whether written or oral, with respect to the subject matter contained herein.\nIN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as\nof the day and year first above written.\nSAVVIS, INC.\nEXECUTIVE\nBy: /s/ Mary Ann Altergott\nBy: /s/ Thomas T. Riley\nName: Mary Ann Altergott\nName: Thomas T. Riley\nTitle: Senior Vice President, Corporate Services\n9\nSchedule A\nWelsh, Carson, Anderson & Stowe VIII L.P.\nWCAS Management Corporation\nAffiliates of the foregoing\n10
+332513ea156ad0fc36f0f84be998933b.pdf	jurisdiction party term	EX-10 3 advancedidsb2am1ex10.txt TRACE AUSTRALA AGREEMENT Appendix B Non-Disclosure Agreement THIS MUTUAL NON-DISCLOSURE\nAGREEMENT (The "Agreement") is made as of ___________, 2 00 3 (the "Effective Date") by and between Distributor, a corporation organized under the laws of\nthe State of Victoria in the Country of Australia, (the "Company"), and Advanced ID Corporation, with principal offices at Calgary, Alberta in the Country of\nCanada (the "Benefactor"). STATEMENT OF PURPOSE. This Agreement is being executed in connection with discussions and other exchanges of information\nthat representatives of the Company and the Participant have had or will have for the purpose of evaluating the possibility of entering into a business relationship\nand/or certain business transactions, for the protection of any and all of the Benefactor's proprietary and/or Confidential Information (as defined) and for such\nother purposes as the parties may collectively agree upon in writing (the "Purpose"). This Agreement is intended to allow both the Company and the Participant to\nhave open discussions while affording protection against disclosure or unauthorized use of their Confidential Information or any and all of the Benefactor's\nproprietary and/or Confidential Information (as defined). CONFIDENTIAL INFORMATION . The Company and the Participant understand and agree that during\nthe term of this Agreement they may be furnished with or otherwise have access to non-public information that the other party or the Benefactor consider to be of\na confidential, proprietary, or trade secret nature, including but not limited to the Benefactor's RFID-related technologies, systems, and processes, as well as\nother financial, business, and technical information, equipment specifications, locations and use, network configurations, marketing, engineering and other plans,\nfinancial statements and projections, customer, vendor and supplier information, research, designs, plans, specifications, drawings, blueprints, tracings, diagrams,\nmodels, samples, flow charts, data, computer programs, source code, software, disks, diskettes, tapes, compilations, methods, techniques, processes,\nprocedures, discoveries, ideas, concepts and know-how of the Benefactor, the Company or the Participant, whether in tangible or intangible form, and whether\nstored or not stored, compiled or memorized physically, electronically, graphically, photographically, or in writing (collectively, the "Confidential Information"). Both\nthe company and the Participant agree to secure and protect the Confidential Information of the Benefactor and the other party in strictest confidence in a manner\nconsistent with the maintenance of the Benefactor's and/or the other party's rights therein, using as great a degree of care, if not more as it uses to maintain the\nconfidentiality of its own confidential information of a similar nature or importance, but in no event using less than diligent care. Neither the Company, nor the\nParticipant shall sell, transfer, publish, disclose, or otherwise use or make available any portion of the Confidential Information of the Benefactor or of the other\nparty to third parties, except to those of its directors, officers, employees, or attorneys who clearly have a need-to-know the same, in furtherance of the specific\npurposes of this Agreement and as expressly authorized in this Agreement. All such disclosures shall be subject to all of the terms and conditions of this\nAgreement, and the party making such disclosure to such directors, officers, employees and/or attorneys shall be fully responsible for ensuring the compliance of\nall such parties with the terms and conditions of this Agreement. No license under any patent, trademark, copyright or any other worldwide intellectual property or\nproprietary rights laws is either granted or implied by the disclosure or provision of any Confidential Information covered hereby, including any and all of the\ninformation covered hereby, including any and all of the Benefactor's proprietary and/or Confidential Information. Nothing in this Agreement shall be deemed to\nobligate the Company or the Participant to disclose any Confidential Information to the other, or to accept any Confidential Information from the other, be it the\nBenefactor's or theirs. In addition, nothing in this Agreement shall be deemed to commit or bind the Benefactor, the Company or the Participant to enter into any\nother contractual or other relationship, or to purchase any goods or services of any of the aforementioned parties. NON -CONFIDENTIAL INFORMATION .\nNotwithstanding Section 2, Confidential Information of any of the concerned parties shall not include information which: (a) is, as of the time of its disclosure or\nthereafter becomes part of the public domain through a source other than the receiving party, without violation of this Agreement; (b) can be demonstrated to be\n(x) rightfully known to the receiving party as of the time of its disclosure, or (y) independently developed by the receiving party; (c) is lawfully learned by the\nreceiving party without restriction from a third party who obtained the Confidential Information other than as a result of a breach of any confidentiality obligation; or\n(d) is required to be disclosed pursuant to a duly authorized subpeona, court order, or government authority, in which event the party subject to same shall\nprovide prompt written notice to the other party prior to such disclosure, so that such party may seek a protective order or other appropriate remedy.\nOWNERSHIP. The receiving party agrees that all Confidential Information of the Benefactor and the disclosing party which comes to the receiving party's custody\nor possession, is and at all times shall be the exclusive property of the Benefactor in the case of its Confidential Information, and the disclosing party in the case\nof its Confidential Information, to be used by the receiving party only for the specific purposes expressly authorized by this Agreement. Upon the termination or\nexpiration of this Agreement, or at the request of the Benefactor or the disclosing party at any time, the receiving party shall promptly destroy all of its copies of\nsuch Confidential Information or return the same to the Benefactor or the disclosing party (in accordance with the Benefactor's or the disclosing party's\ninstructions, whichever one may ask), and shall, within thirty (30) days of such termination, expiration or receiving such a request, certify in writing its compliance\nwith the terms of this provision. After such destruction or delivery, the receiving party shall not retain any copies thereof, except as may be allowed under\nseparate agreement or as lawfully retained. No disclosure of Confidential Information shall constitute any representation or warranty regarding the Confidential\nInformation; all Confidential Information is provided "AS IS" with all faults and the Benefactor shall have any liability for the other party's reliance thereon.\nMISCELLANEOUS. This Agreement constitutes the entire agreement between the Company and the Participant concerning the subject matter hereof and\nsupersedes any prior or contemporaneous agreements concerning the subject matter hereof. The term of this Agreement shall be for a period of two (2) years\nunless terminated upon written notice by the affected party to another. The confidentiality obligations for Confidential Information of trade secret nature shall\nsurvive the termination or expiration of this Agreement for as long as such Confidential Information remains a trade secret, including as it pertains to the trade\nsecrets and proprietary information of Benefactor. The confidentiality obligations for all non trade secret Confidential Information shall continue for a period of five\n(5) years following termination or expiration of this Agreement. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement, and any invalid or unenforceable provision shall be deemed to be amended to the minimum extent\nnecessary to render it enforceable under applicable law while retaining to the maximum extent possible the intent and economic benefit of the original provision\nconsistent with applicable law. No delay or omission by a party in exercising any right under this Agreement will operate as a waiver of that or any other right. This\nAgreement is governed by and will be construed in accordance with the laws of the State of South Dakota in the United States of America without regard to\nconflicts of its principles. The Company and the Participant hereby expressly submit to the jurisdiction and venue of the appropriate federal or state courts in the\nState of South Dakota in the United States of America, however, the Company and the Participant agree that any controversy or claim arising out of or relating to\nthis Agreement may be brought before a court or tribunal of competent jurisdiction in any Nation, Country, State, Commonwealth or other locality as be required\nto enforce their rights or as may be required to enforce the rights of the Benefactor, and that the Benefactor shall have the standing in such court or tribunal to\nenforce any and all of its rights with concern to any and all of the its proprietary and/or Confidential Information, including the pursuit of injunctive contractors and\nshall not be deemed to be an agent, partner, joint venture, or franchisor-franchisee with the other or with the Benefactor for any purpose. The Company and the\nParticipant acknowledge that their breach of this Agreement may cause irreparable injury to the Benefactor or to the other party and that the Benefactor and/or\nthe other party may seek and obtain injunctive and other equitable relief in a court or tribunal of competent jurisdiction against such breach. No amendment or\nmodification of this Agreement shall be valid or binding on the Company or the Participant unless made in a mutually executed writing, and no amendment or\nmodification of this Agreement shall be valid or binding on the Benefactor unless executed thereby. All affected parties shall not disclose, publicize or advertise in\nany manner the discussions or negotiations contemplated by this Agreement without the prior written consent of the affected, except as may be required by law.\nAll notices under this Agreement shall be in writing and sent to the address listed herein (or to such different address as may be designated by a party by written\nnotice to the other party), and shall be deemed to have been delivered (a) on the date personally delivered, (b) on the date mailed, postage prepaid by certified\nmail with return receipt requested or by an internationally- recognized express courier, or (c) when sent via facsimile and confirmed to the parties' addresses set\nforth herein. Any notice to Benefactor shall be sent to the attention of the President. This Agreement may be executed in multiple counterparts, all of which taken\ntogether shall constitute a single instrument. This Agreement may be delivered by facsimile. IN WITNESS WHEREOF, the parties hereto have executed this\nAgreement as of the Effective Date and agree to be legally bound by all terms and conditions herein, including all those benefiting the Benefactor. TRACE\nAUSTRALIA PTY LTD. ADVANCED ID CORPORATION X /s/Anthony Hurley /s/Barry Bennett By: Anthony Hurley By: Barry Bennett Title: Director Title:\nPresident & CEO Address: Albert Park, Address: Calgary Victoria, Australia Alberta, Canada Date: 01/09/2004 Date: Jan. 19, 2004	EX-lO 3 advancedidsb2amlex10.txtTRAC E AU STRALA AG RE E M E NT Appendix B Non-Disclosure Agreement THIS M UTUAL NO N-DISC LOSU R E\nAGRE E ME NT (The "Agreement") is made as of ___________ , 2003 (the "Effective Date") by and between Distributor, a corporation organized under the laws of\nthe State ofVictoria in the Country ofAustralia, (the "Company"), and Advanced ID Corporation, with principal of‘fices atCaIgary, Alberta in the Country of\nCanada (the "Benefactor"). STATE ME NT OF PU RPOSE. This Agreement is being executed in connection with discussions and other exchanges of information\nthat representatives of the Company and the Participant have had or will have for the purpose ofevaluating the possibility ofentering into a business relationship\nand/or certain business transactions, for the protection of any and all of the Benefactor's proprietary and/or Confidential Information (as defined) and for such\nother purposes as the parties may collectively agree upon in writing (the "P urpose"). This Agreement is intended to allow both the Company and the Participantto\nhave open discussions while affording protection againstdisclosure or unauthorized use oftheir Confidential Information or any and all ofthe Benefactor's\nproprietary and/or Confidential Information (as defined). CONFIDE NTIAL INFORMATION. The Company and the Participant understand and agree that during\nthe term of this Agreement they may be furnished with or otherwise have access to non-public information thatthe other party or the Benefactor consider to be of\na confidential, proprietary, or trade secret nature, including but not limited to the Benefactor's RFID-related technologies, systems, and processes, as well as\nother financial, business, and technical information, equipment specifications, locations and use, network configurations, marketing, engineering and other plans,\nfinancial statemens and projections, customer, vendor and supplier information, research, designs, plans, specifications, drawings, blueprins, tracings, diagrams,\nmodels, samples, fiow chars, data, computer programs, source code, software, disks, diskettes, tapes, compilations, methods, techniques, processes,\nprocedures, discoveries, ideas, conceps and know-how of the Benefactor, the Company or the Participant, whether in tangible or intangible form, and whether\nstored or notstored, compiled or memorized physically, electronically, graphically, photographically, or in writing (collectively, the "Confidential Information"). Both\nthe company and the Participant agree to secure and protectthe Confidential Information ofthe Benefactor and the other party in strictestconfidence in a manner\nconsistentwith the maintenance of the Benefactor's and/or the other party's righs therein, using as great a degree ofcare, if not more as it uses to maintain the\nconfidentiality of is own confidential information of a similar nature or importance, but in no event using less than diligentcare. Neither the Company, nor the\nParticipantshall sell, transfer, publish, disclose, or otherwise use or make available any portion of the Confidential Information of the Benefactor or of the other\nparty to third parties, except to those of is directors, officers, employees, or attorneys who clearly have a need-to-know the same, in furtherance ofthe specific\npurposes of this Agreement and as expressly authorized in this Agreement. All such disclosures shall be subjectto all of the terms and conditions of this\nAgreement, and the party making such disclosure to such directors, officers, employees and/or attorneys shall be fully responsible for ensuring the compliance of\nall such parties with the terms and conditions ofthis Agreement. No license under any patent, trademark, copyrightor any other worldwide intellectual property or\nproprietary righs laws is either granted or implied by the disclosure or provision of any Confidential Information covered hereby, including any and all ofthe\ninformation covered hereby, including any and all of the Benefactor's proprietary and/or Confidential Information. Nothing in this Agreement shall be deemed to\nobligate the Company or the Participant to disclose any Confidential Information to the other, or to accept any Confidential Information from the other, be it the\nBenefactor's or theirs. In addition, nothing in this Agreementshall be deemed to commitor bind the Benefactor, the Company or the Participant to enter into any\nother contractual or other relationship, or to purchase any goods or sen/ices of any of the aforementioned parties. NON-CONFIDE NTIAL INFORMATION.\nNotwithstanding Section 2, Confidential Information of any of the concerned parties shall not include information which: (a) is, as of the time of is disclosure or\nthereafter becomes partofthe public domain through a source other than the receiving party, without violation of this Agreement; (b) can be demonstrated to be\n(x) rightfully known to the receiving party as ofthe time of is disclosure, or (y) independently developed by the receiving party; (c) is lawfully learned by the\nreceiving party without restriction from a third party who obtained the Confidential Information other than as a result of a breach of any confidentiality obligation; or\n(d) is required to be disclosed pursuant to a duly authorized subpeona, court order, or government authority, in which eventthe party subjectto same shall\nprovide prompt written notice to the other party prior to such disclosure, so that such party may seek a protective order or other appropriate remedy.\nOWNE RSHIP. The receiving party agrees that all Confidential Information of the Benefactor and the disclosing party which comes to the receiving party's custody\nor possession, is and at all times shall be the exclusive property of the Benefactor in the case of is Confidential Information, and the disclosing party in the case\nof is Confidential Information, to be used by the receiving party only for the specific purposes expressly authorized by this Agreement. Upon the termination or\nexpiration of this Agreement, or atthe requestofthe Benefactor or the disclosing party at any time, the receiving party shall promptly destroy all of is copies of\nsuch Confidential Information or return the same to the Benefactor or the disclosing party (in accordance with the Benefactor's or the disclosing party's\ninstructions, whichever one may ask), and shall, within thirty (30) days of such termination, expiration or receiving such a request, certify in writing is compliance\nwith the terms of this provision. After such destruction or delivery, the receiving party shall not retain any copies thereof, except as may be allowed under\nseparate agreementor as lawfully retained. No disclosure ofConfidential Information shall constitute any representation or warranty regarding the Confidential\nInformation; all Confidential Information is provided "AS IS" with all fauls and the Benefactor shall have any liability forthe other party's reliance thereon.\nMISC E LLAN EOUS. This Agreementconstitutes the entire agreement between the Company and the Participant concerning the subject matter hereof and\nsupersedes any prior or contemporaneous agreemens concerning the subject matter hereof. The term ofthis Agreementshall be for a period oftwo (2) years\nunless terminated upon written notice by the affected party to another. The confidentiality obligations for Confidential Information oftrade secret nature shall\nsun/ive the termination or expiration ofthis Agreementfor as long as such Confidential Information remains a trade secret, including as it pertains to the trade\nsecres and proprietary information of Benefactor. The confidentiality obligations for all non trade secret Confidential Information shall continue for a period of five\n(5) years following termination or expiration of this Agreement. The invalidity or unenforceability of any provision of this Agreementshall not affectthe validity or\nenforceability of any other provision of this Agreement, and any invalid or unenforceable provision shall be deemed to be amended to the minimum extent\nnecessary to render itenforceable under applicable law while retaining to the maximum extent possible the intent and economic benefit of the original provision\nconsistentwith applicable law. No delay or omission by a party in exercising any right under this Agreement will operate as a waiver of that or any other right. This\nAgreement is governed by and will be construed in accordance with the laws ofthe State of South Dakota in the United States ofAmerica without regard to\nconflics of is principles. The Company and the Participant hereby expressly submit to the jurisdiction and venue of the appropriate federal or state cours in the\nState of South Dakota in the United States ofAmerica, however, the Company and the Participant agree that any controversy or claim arising outofor relating to\nthis Agreement may be brought before a courtor tribunal ofcompetentjurisdiction in any Nation, Country, State, Commonwealth or other locality as be required\nto enforce their righs or as may be required to enforce the righs ofthe Benefactor, and thatthe Benefactor shall have the standing in such court or tribunal to\nenforce any and all of is righs with concern to any and all of the is proprietary and/or Confidential Information, including the pursuit of injunctive contractors and\nshall not be deemed to be an agent, partner, joint venture, or franchisor-franchisee with the other or with the Benefactor for any purpose. The Company and the\nParticipant acknowledge thattheir breach of this Agreement may cause irreparable injury to the Benefactor or to the other party and thatthe Benefactor and/or\nthe other party may seek and obtain injunctive and other equitable relief in a court or tribunal ofcompetentjurisdiction againstsuch breach. No amendmentor\nmodification ofthis Agreement shall be valid or binding on the Company or the Participant unless made in a mutually executed writing, and no amendmentor\nmodification ofthis Agreement shall be valid or binding on the Benefactor unless executed thereby. All affected parties shall notdisclose, publicize or advertise in\nany manner the discussions or negotiations contemplated by this Agreementwithoutthe prior written consentof the affected, except as may be required by law.\nAll notices under this Agreementshall be in writing and sentto the address listed herein (or to such different address as may be designated by a party by written\nnotice to the other party), and shall be deemed to have been delivered (a) on the date personally delivered, (b) on the date mailed, postage prepaid by certified\nmail with return receipt requested or by an internationally- recognized express courier, or (c) when sentvia facsimile and confirmed to the parties' addresses set\nforth herein. Any notice to Benefactor shall be sent to the attention of the President. This Agreement may be executed in multiple counterpars, all ofwhich taken\ntogether shall constitute a single instrument. This Agreement may be delivered by facsimile. IN WITNESS WHEREOF, the parties hereto have executed this\nAgreement as of the Effective Date and agree to be legally bound by all terms and conditions herein, including all those benefiting the Benefactor. TRACE\nAUSTRALIA PTY LTD. ADVANCED |D CORPORATION X /s/Anthony Hurley /s/Barry Bennett By: Anthony Hurley By: Barry BennettTitle: Director Title:\nPresident& CEO Address: Albert Park, Address: Calgary Victoria, Australia Alberta, Canada Date: 01/09/2004 Date: J an. 19,2004	EX-10 3 advancedidsb2amlexlo.tx TRACE AUSTRALA AGREEMENT Appendix B Non-Disclosure Agreement THIS MUTUAL NON-DISCLOSURE\nAGREEMENT (The "Agreement") is made as of\n2003 (the 'Effective Date") by and between Distributor, a corporation organized under the laws of\nthe State of Victoria in the Country of Australia, (the "Company"), and Advanced ID Corporation, with principal offices at Calgary, Alberta in the Country\nof\nCanada (the "Benefactor"). STATEMENT OF PURPOSE. This Agreement is being executed in connection with discussions and other exchanges of information\nthat representatives of the Company and the Participant have had or will have for the purpose of evaluating the possibility of entering into a business relationship\nand/or certain business transactions, for the protection of any and all of the Benefactor's proprietary and/or Confidential Information (as defined) and for such\nother purposes as the parties may collectively agree upon in writing (the "Purpose"). This Agreement is intended to allow both the Company and the Participant\nto\nhave open discussions while affording protection against disclosure or unauthorized use of their Confidential Information or any and all of the Benefactor's\nproprietary and/or Confidential Information (as defined). CONFIDENTIAL INFORMATION. The Company and the Participant understand and agree that during\nthe term of this Agreement they may be furnished with or otherwise have access to non-public information that the other party or the Benefactor consider to be of\na confidential, proprietary, or trade secret nature, including but not limited to the Benefactor's RFID-related technologies, systems, and processes, as well as\nother financial, business, and technical information, equipment specifications, locations and use, network configurations, marketing, engineering and other plans,\nfinancial statements and projections, customer, vendor and supplier information, research, designs, plans, specifications, drawings, blueprints, tracings, diagrams,\nmodels, samples, flow charts, data, computer programs, source code, software, disks, diskettes, tapes, compilations, methods, techniques, processes,\nprocedures, discoveries, ideas, concepts and know-how of the Benefactor, the Company or the Participant, whether in tangible or intangible form, and whether\nstored or not stored, compiled or memorized physically, electronically, graphically, photographically, or in writing (collectively, the "Confidential Information"). Both\nthe company and the Participant agree to secure and protect the Confidential Information of the Benefactor and the other party in strictest confidence in a manner\nconsistent with the maintenance of the Benefactor's and/or the other party's rights therein, using as great a degree of care, if not more as it uses to maintain the\nconfidentiality of its own confidential information of a similar nature or importance, but in no event using less than diligent care. Neither the Company, nor the\narticipant shall sell, transfer, publish, disclose, or otherwise use or make available any portion of the Confidential Information of the Benefactor or of the other\nparty to third parties, except to those of its directors, officers, employees, or attorneys who clearly have a need-to-know the same, in furtherance of the specific\npurposes of this Agreement and as expressly authorized in this Agreement. All such disclosures shall be subject to all of the terms and conditions of this\nAgreement, and the party making such disclosure to such directors, officers, employees and/or attorneys shall be fully responsible for ensuring the compliance of\nall such parties with the terms and conditions of this Agreement. No license under any patent, trademark, copyright or any other worldwide intellectual property\nor\nproprietary rights laws is either granted or implied by the disclosure or provision of any Confidential Information covered hereby, including any and all of the\ninformation covered hereby, including any and all of the Benefactor's proprietary and/or Confidential Information. Nothing in this Agreement shall be deemed to\nobligate the Company or the articipant to disclose any Confidentia Information to the other, or to accept any Confidential Information from the other, be it the\nBenefactor's or theirs. In addition, nothing in this Agreement shall be deemed to commit or bind the Benefactor, the Company or the articipant to enter into any\nother contractual or other relationship, or to purchase any goods or services of any of the aforementioned parties. NON-CONFIDENTIAL INF ORMATION.\nNotwithstanding Section 2, Confidential Information of any of the concerned parties shall not include information which: (a) is, as of the time of its disclosure\nor\nthereafter becomes part of the public domain through a source other than the receiving party, without violation of this Agreement; (b) can be demonstrated to\nbe\n(x) rightfully known to the receiving party as of the time of its disclosure, or (y) independently developed by the receiving party; (c) is lawfully learned by the\nreceiving party without restriction from a third party who obtained the Confidential Information other than as a result of a breach of any confidentiality obligation; or\n(d) is required to be disclosed pursuant to a duly authorized subpeona, court order or government authority, in which event the party subject to same shal\nprovide prompt written notice to the other party prior to such disclosure, so that such party may seek a protective order or other appropriate remedy.\nOWNERSHIP The receiving party agrees that all Confidential Information of the Benefactor and the disclosing party which comes to the receiving party's custody\nor possession is and at all times shal be the exclusive property of the Benefactor in the case of its Confidential Information, and the disclosing party in the case\nof its Confidential Information to be used by the receiving party only for the specific purposes expressly authorized by this Agreement Jpon the termination\nor\nexpiration of this Agreement, or at the request of the Benefactor or the disclosing party at any time, the receiving party shall promptly destroy all of its copies\nof\nsuch Confidential Information or return the same to the Benefactor or the disclosing party (in accordance with the Benefactor's or the disclosing party's\ninstructions, whichever one may ask), and shall, within thirty (30) days of such termination, expiration or receiving such a request, certify in writing its compliance\nwith the terms of this provision. After such destruction or delivery, the receiving party shall not retain any copies thereof, except as may be allowed under\nseparate agreement or as lawfully retained. No disclosure of Confidential Information shal constitute any representation or warranty regarding the Confidential\nInformation; all Confidential Information is provided "AS IS" with all faults and the Benefactor shall have any liability for the other party's reliance thereon.\nMISCELLANEOUS. This Agreement constitutes the entire agreement between the Company and the articipant concerning the subject matter hereof and\nsupersedes any prior or contemporaneous agreements concerning the subject matter hereof. The term of this Agreement shall be for a period of two (2) years\nunless terminated upon written notice by the affected party to another. The confidentiality obligations for Confidential Information of trade secret nature shall\nsurvive the termination or expiration of this Agreement for as long as such Confidential Information remains a trade secret, including as it pertains to the trade\nsecrets and proprietary information of Benefactor. The confidentiality obligations for all non trade secret Confidential Information shall continue for a period of five\n(5) years following termination or expiration of this Agreement. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement, and any invalid or unenforceable provision shall be deemed to be amended to the minimum extent\nnecessary to render it enforceable under applicable law while retaining to the maximum extent possible the intent and economic benefit of the original provision\nconsistent with applicable law. No delay or omission by a party in exercising any right under this Agreement will operate as a waiver of that or any other right. This\nAgreement is governed by and will be construed in accordance with the laws of the tate of outh Dakota in the United States of America without regard to\nconflicts of its principles. The Company and the Participant hereby expressly submit to the jurisdiction and venue of the appropriate federal or state courts in\nthe\nState of South Dakota in the United States of America, however, the Company and the Participant agree that any controversy or claim arising out of or relating to\nthis Agreement may be brought before a court or tribunal of competent jurisdiction in any Nation, Country, State, Commonwealth or other locality as be required\nto enforce their rights or as may be required to enforce the rights of the Benefactor, and that the Benefactor shal have the standing in such court or tribuna to\nenforce any and all of its rights with concern to any and all of the its proprietary and/or Confidential Information, including the pursuit of injunctive contractors and\nshall not be deemed to be an agent, partner, joint venture, or franchisor-franchisee with the other or with the Benefactor for any purpose. The Company and the\nParticipant acknowledge that their breach of this Agreement may cause irreparable injury to the Benefactor or to the other party and that the Benefactor and/or\nthe other party may seek and obtain injunctive and other equitable relief in a court or tribunal of competent jurisdiction against such breach. No amendment or\nmodification of this Agreement shall be valid or binding on the Company or the Participant unless made in a mutually executed writing, and no amendment or\nmodification of this Agreement shall be valid or binding on the Benefactor unless executed thereby. All affected parties shall not disclose, publicize or advertise in\nany manner the discussions or negotiations contemplated by this Agreement without the prior written consent of the affected, except as may be required by\nlaw.\nAIl notices under this Agreement shall be in writing and sent to the address listed herein (or to such different address as may be designated by a party by written\nnotice to the other party), and shall be deemed to have been delivered (a) on the date personally delivered, (b) on the date mailed, postage prepaid by certified\nmai with return receipt requested or by an internationally- recognized express courier, or (c) when sent via facsimile and confirmed to the parties' addresses\nset\nforth\nherein. Any notice to Benefactor shal be sent to the attention of the P resident. This Agreement may be executed in multiple counterparts, all of which taken\ntogether shall constitute a single instrument. This Agreement may be delivered by facsimile. IN WITNESS WHEREOF, the parties hereto have executed\nthis\nAgreement as of the Effective Date and agree to be legally bound by all terms and conditions herein, including all those benefiting the Benefactor. TRACE\nAUSTRALIA PTY LTD. ADVANCED ID CORPORATION X /s/Anthony Hurley s/Barry Bennett By: Anthony Hurley By: Barry Bennett Title: Director Title:\nPresident & CEO Address: Albert Park, Address: Calgary Victoria, Australia Alberta, Canada Date: 01/09/2004 Date: J an. 19, 2004	EX-10 3 advancedidsb2am1ex10.txt TRACE AUSTRALA AGREEMENT Appendix B Non-Disclosure Agreement THIS MUTUAL NON-DISCLOSURE\nAGREEMENT (The "Agreement") is made as of ___________, 2 00 3 (the "Effective Date") by and between Distributor, a corporation organized under the laws of\nthe State of Victoria in the Country of Australia, (the "Company"), and Advanced ID Corporation, with principal offices at Calgary, Alberta in the Country of\nCanada (the "Benefactor"). STATEMENT OF PURPOSE. This Agreement is being executed in connection with discussions and other exchanges of information\nthat representatives of the Company and the Participant have had or will have for the purpose of evaluating the possibility of entering into a business relationship\nand/or certain business transactions, for the protection of any and all of the Benefactor's proprietary and/or Confidential Information (as defined) and for such\nother purposes as the parties may collectively agree upon in writing (the "Purpose"). This Agreement is intended to allow both the Company and the Participant to\nhave open discussions while affording protection against disclosure or unauthorized use of their Confidential Information or any and all of the Benefactor's\nproprietary and/or Confidential Information (as defined). CONFIDENTIAL INFORMATION . The Company and the Participant understand and agree that during\nthe term of this Agreement they may be furnished with or otherwise have access to non-public information that the other party or the Benefactor consider to be of\na confidential, proprietary, or trade secret nature, including but not limited to the Benefactor's RFID-related technologies, systems, and processes, as well as\nother financial, business, and technical information, equipment specifications, locations and use, network configurations, marketing, engineering and other plans,\nfinancial statements and projections, customer, vendor and supplier information, research, designs, plans, specifications, drawings, blueprints, tracings, diagrams,\nmodels, samples, flow charts, data, computer programs, source code, software, disks, diskettes, tapes, compilations, methods, techniques, processes,\nprocedures, discoveries, ideas, concepts and know-how of the Benefactor, the Company or the Participant, whether in tangible or intangible form, and whether\nstored or not stored, compiled or memorized physically, electronically, graphically, photographically, or in writing (collectively, the "Confidential Information"). Both\nthe company and the Participant agree to secure and protect the Confidential Information of the Benefactor and the other party in strictest confidence in a manner\nconsistent with the maintenance of the Benefactor's and/or the other party's rights therein, using as great a degree of care, if not more as it uses to maintain the\nconfidentiality of its own confidential information of a similar nature or importance, but in no event using less than diligent care. Neither the Company, nor the\nParticipant shall sell, transfer, publish, disclose, or otherwise use or make available any portion of the Confidential Information of the Benefactor or of the other\nparty to third parties, except to those of its directors, officers, employees, or attorneys who clearly have a need-to-know the same, in furtherance of the specific\npurposes of this Agreement and as expressly authorized in this Agreement. All such disclosures shall be subject to all of the terms and conditions of this\nAgreement, and the party making such disclosure to such directors, officers, employees and/or attorneys shall be fully responsible for ensuring the compliance of\nall such parties with the terms and conditions of this Agreement. No license under any patent, trademark, copyright or any other worldwide intellectual property or\nproprietary rights laws is either granted or implied by the disclosure or provision of any Confidential Information covered hereby, including any and all of the\ninformation covered hereby, including any and all of the Benefactor's proprietary and/or Confidential Information. Nothing in this Agreement shall be deemed to\nobligate the Company or the Participant to disclose any Confidential Information to the other, or to accept any Confidential Information from the other, be it the\nBenefactor's or theirs. In addition, nothing in this Agreement shall be deemed to commit or bind the Benefactor, the Company or the Participant to enter into any\nother contractual or other relationship, or to purchase any goods or services of any of the aforementioned parties. NON -CONFIDENTIAL INFORMATION .\nNotwithstanding Section 2, Confidential Information of any of the concerned parties shall not include information which: (a) is, as of the time of its disclosure or\nthereafter becomes part of the public domain through a source other than the receiving party, without violation of this Agreement; (b) can be demonstrated to be\n(x) rightfully known to the receiving party as of the time of its disclosure, or (y) independently developed by the receiving party; (c) is lawfully learned by the\nreceiving party without restriction from a third party who obtained the Confidential Information other than as a result of a breach of any confidentiality obligation; or\n(d) is required to be disclosed pursuant to a duly authorized subpeona, court order, or government authority, in which event the party subject to same shall\nprovide prompt written notice to the other party prior to such disclosure, so that such party may seek a protective order or other appropriate remedy.\nOWNERSHIP. The receiving party agrees that all Confidential Information of the Benefactor and the disclosing party which comes to the receiving party's custody\nor possession, is and at all times shall be the exclusive property of the Benefactor in the case of its Confidential Information, and the disclosing party in the case\nof its Confidential Information, to be used by the receiving party only for the specific purposes expressly authorized by this Agreement. Upon the termination or\nexpiration of this Agreement, or at the request of the Benefactor or the disclosing party at any time, the receiving party shall promptly destroy all of its copies of\nsuch Confidential Information or return the same to the Benefactor or the disclosing party (in accordance with the Benefactor's or the disclosing party's\ninstructions, whichever one may ask), and shall, within thirty (30) days of such termination, expiration or receiving such a request, certify in writing its compliance\nwith the terms of this provision. After such destruction or delivery, the receiving party shall not retain any copies thereof, except as may be allowed under\nseparate agreement or as lawfully retained. No disclosure of Confidential Information shall constitute any representation or warranty regarding the Confidential\nInformation; all Confidential Information is provided "AS IS" with all faults and the Benefactor shall have any liability for the other party's reliance thereon.\nMISCELLANEOUS. This Agreement constitutes the entire agreement between the Company and the Participant concerning the subject matter hereof and\nsupersedes any prior or contemporaneous agreements concerning the subject matter hereof. The term of this Agreement shall be for a period of two (2) years\nunless terminated upon written notice by the affected party to another. The confidentiality obligations for Confidential Information of trade secret nature shall\nsurvive the termination or expiration of this Agreement for as long as such Confidential Information remains a trade secret, including as it pertains to the trade\nsecrets and proprietary information of Benefactor. The confidentiality obligations for all non trade secret Confidential Information shall continue for a period of five\n(5) years following termination or expiration of this Agreement. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement, and any invalid or unenforceable provision shall be deemed to be amended to the minimum extent\nnecessary to render it enforceable under applicable law while retaining to the maximum extent possible the intent and economic benefit of the original provision\nconsistent with applicable law. No delay or omission by a party in exercising any right under this Agreement will operate as a waiver of that or any other right. This\nAgreement is governed by and will be construed in accordance with the laws of the State of South Dakota in the United States of America without regard to\nconflicts of its principles. The Company and the Participant hereby expressly submit to the jurisdiction and venue of the appropriate federal or state courts in the\nState of South Dakota in the United States of America, however, the Company and the Participant agree that any controversy or claim arising out of or relating to\nthis Agreement may be brought before a court or tribunal of competent jurisdiction in any Nation, Country, State, Commonwealth or other locality as be required\nto enforce their rights or as may be required to enforce the rights of the Benefactor, and that the Benefactor shall have the standing in such court or tribunal to\nenforce any and all of its rights with concern to any and all of the its proprietary and/or Confidential Information, including the pursuit of injunctive contractors and\nshall not be deemed to be an agent, partner, joint venture, or franchisor-franchisee with the other or with the Benefactor for any purpose. The Company and the\nParticipant acknowledge that their breach of this Agreement may cause irreparable injury to the Benefactor or to the other party and that the Benefactor and/or\nthe other party may seek and obtain injunctive and other equitable relief in a court or tribunal of competent jurisdiction against such breach. No amendment or\nmodification of this Agreement shall be valid or binding on the Company or the Participant unless made in a mutually executed writing, and no amendment or\nmodification of this Agreement shall be valid or binding on the Benefactor unless executed thereby. All affected parties shall not disclose, publicize or advertise in\nany manner the discussions or negotiations contemplated by this Agreement without the prior written consent of the affected, except as may be required by law.\nAll notices under this Agreement shall be in writing and sent to the address listed herein (or to such different address as may be designated by a party by written\nnotice to the other party), and shall be deemed to have been delivered (a) on the date personally delivered, (b) on the date mailed, postage prepaid by certified\nmail with return receipt requested or by an internationally- recognized express courier, or (c) when sent via facsimile and confirmed to the parties' addresses set\nforth herein. Any notice to Benefactor shall be sent to the attention of the President. This Agreement may be executed in multiple counterparts, all of which taken\ntogether shall constitute a single instrument. This Agreement may be delivered by facsimile. IN WITNESS WHEREOF, the parties hereto have executed this\nAgreement as of the Effective Date and agree to be legally bound by all terms and conditions herein, including all those benefiting the Benefactor. TRACE\nAUSTRALIA PTY LTD. ADVANCED ID CORPORATION X /s/Anthony Hurley /s/Barry Bennett By: Anthony Hurley By: Barry Bennett Title: Director Title:\nPresident & CEO Address: Albert Park, Address: Calgary Victoria, Australia Alberta, Canada Date: 01/09/2004 Date: Jan. 19, 2004
+335560b5fec7cafc3b9822fb13113fa0.pdf	effective_date jurisdiction party term	EX-10.5 6 dex105.htm CONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION\nAGREEMENT\nExhibit 10.5\nCONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON -COMPETITION AGREEMENT\nAs an associate of Ann Taylor, Inc. (the “Company”), you will have access to or may develop trade secrets, intellectual property, and other\nconfidential and proprietary information of the Company. Therefore, in consideration of your 2008 salary increase, your 2008 restricted stock grant,\nyour becoming eligible to participate in the Restricted Cash Feature under the AMIP Plan, the Restructuring Program Bonus and the payments\ndescribed in Paragraph 2 below, benefits that you will not be eligible for if you do not sign this Agreement, and in recognition of the highly\ncompetitive nature of the Company’s business, you agree as follows:\n1. Protection of Confidential Information.\n(a) You acknowledge that your employment by the Company involves your obtaining knowledge of Confidential Information (as defined below)\nregarding the business and affairs of the Company.\n(b) Accordingly, you agree that:\n(i) except in compliance with legal process, you will keep secret all Confidential Information and other confidential matters of the Company\nwhich are not otherwise in the public domain and will not disclose them to anyone outside of the Company, wherever located (other than\nto a person to whom disclosure is reasonably necessary or appropriate in connection with the performance of your duties as an employee\nof the Company), either during or after your employment, except with the prior written consent of the Chief Executive Officer or the\nGeneral Counsel of the Company. In the event that you are required to disclose any Confidential Information or other confidential\nmatters of the Company to comply with legal process, you shall provide reasonable advance notice of such legal process to the General\nCounsel of the Company prior to disclosure of any Confidential Information or confidential matters and will not challenge the\nCompany’s standing or ability to seek an order of protection or otherwise seek to prevent or limit disclosure pursuant to such legal\nprocess consistent with applicable law;\n(ii) you will deliver promptly to the Company on termination of your employment or at any other time the Company may so request, all\nmemoranda, notes, records, customer lists, reports and other documents (whether in paper or electronic form and all copies thereof)\nrelating to the business of the Company and all other Company property which you obtained or developed while employed by, or\notherwise serving or acting on behalf of, the Company and which you may then possess or have under your control, whether directly or\nindirectly; and\n(iii) you will not use Confidential Information for your personal benefit or for the benefit of another person or entity.\n(c) For purposes of this Agreement, “Confidential Information” refers to information of the Company (including its affiliated companies) or its\nsuppliers, technology service providers, licensors, clients, and employees, including without limitation information relating to designs,\nproducts, processes, formulas, merchandising, real estate strategy, contract terms, client lists, sourcing information and strategies, technology,\nmarketing plans, advertising, corporate assessments and strategic plans, financial and statistical information, accounting information, pricing\nand business affairs, associate compensation and relative skills and abilities, which have been or are disclosed or available to you and which\nare either designated at the time of disclosure as confidential or which you know or have reason to know are confidential, regardless of the\nform or media in which such information is disclosed.\n2. Non-solicitation of Associates; Non-competition.\n(a) During your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Solicitation Period”), you shall not directly or indirectly, (1) solicit, induce, or attempt to influence any associate at\nthe director level or above to leave his or her employment with the Company or (2) hire or attempt to hire any associate of the Company at the\ndirector level or above, directly or indirectly through a new employer or other person or entity, to join you in the pursuit of any business\nactivity (whether or not such activity involves engaging or participating in a business that competes, or plans to compete, with the Company or\nany of its products). Should you violate this provision, in addition to the other remedies the Company may pursue hereunder, the Non-\nSolicitation Period will be extended by the number of months you were in violation of this Paragraph 2(a) and you shall have no further rights\nunder Paragraphs 2(c), 2(d) and 2(e).\n(b) During your employment and for a period of 12 months after your separation from the Company for any reason\nwhatsoever, whether voluntary or involuntary (the “Non-Competition Period”), you shall not, directly or indirectly, without the prior written\nconsent of the Company, work for, be employed, affiliated, engaged or associated with or contribute to the efforts (as an employee, owner,\nstockholder, partner, director, officer, consultant or otherwise) of a business that is, or plans to be, a Competitor (as defined herein) of the\nCompany at the time of termination. As used herein, “Competitor” means a business or other entity engaged in the manufacture, design and/or\nsale of women’s apparel in the United States. Should you violate this provision, in addition to the other remedies the Company may pursue\nhereunder, the Non-Competition Period will be extended by the number of months you were in violation of this Paragraph 2(b) and you shall\nhave no further rights under Paragraphs 2(c), 2(d) and 2(e). Notwithstanding the foregoing, passive ownership of less than 2% of any class of\nsecurities of a public company shall not violate this Section 2(b).\n(c) If you are terminated by the Company without cause (as defined Paragraph 2(f) below, “Cause”) or if you resign from your employment,\nduring the Non-Competition Period the Company shall pay you an amount equivalent to your base salary times 1.5 (“Separation Pay”),\npayable in substantially equal installments in accordance with the Company’s regular payroll cycle, and you will continue to receive all\nbenefits under the Company’s medical, dental and vision benefit plans to the same extent as if you were an employee of the Company. If you\nresign from your employment, the Company may waive the provisions of Paragraph 2(b) or shorten the Non-Competition Period by providing\nyou written notice of the waiver or the shortened Non-Competition Period within 10 business days of your resignation, in which case (i) you\nwill only be bound by the restrictions in Paragraph 2(b) above during the shortened Non-Competition Period (but will continue to remain\nbound by the restrictions in Paragraphs 1 and 2(a) above), and (ii) the Company will have no obligation to pay you Separation Pay or continue\nyour benefits if it waives the provisions of Paragraph 2(b) above or if the Company shortens the Non-Competition Period pursuant to this\nParagraph 2(c), the Company will only pay you a pro rata portion of the Separation Pay as prorated in proportion to the shortened Non-\nCompetition Period and continue your benefits only during the shortened Non-Competition Period.\n(d) If you are terminated by the Company without Cause and have never been a “Section 162(m) Employee” (as defined below), in addition to the\nSeparation Pay you will also be entitled to an amount equal to your targeted bonus under the Management Performance Compensation Plan\n(“AMIP”) (or if the AMIP Plan is not then in effect, under the annual cash bonus plan in effect at the time of the termination of your\nemployment), for the season in which you are terminated (or year in which you are terminated if the bonus plan target for you is then an annual\ntarget). For those associates who in any year have been or become “covered employees” within the meaning of Section 162(m) (“Section\n162(m) Employee”) of the Internal Revenue Code of 1986, as amended (the “Code”), thereafter if you are terminated by the Company without\nCause, you will also be eligible for a bonus under the AMIP Plan (or if the AMIP Plan is not then in effect, under the annual cash bonus plan\nin effect at the time of the termination of your employment), for the season in which you are terminated (or year in which you are terminated if\nthe bonus plan target for you is then an annual target) as if you had remained an active associate for the season or entire year, as the case may\nbe, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the AMIP bonus, if any, payable\nunder this Paragraph 2(d) when bonuses are paid to other Company executives under the AMIP Plan, or the annual cash bonus plan in effect at\nthe time of termination.\n(e) If you are terminated by the Company without Cause, you will also receive payment of all monies earned but not yet vested under the\nRestricted Cash feature of the AMIP Plan, including monies earned or to be earned in the season in which you are terminated (or year in which\nyou are terminated if the restricted cash feature target for you is then an annual target) as if you had remained an active associate for the season\nor entire year, as the case may be, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the\nearned monies in the restricted cash feature of the AMIP Plan, if any, in accordance with the payment schedule for active associates.\n(f) For purposes of this Agreement, “Cause” shall be defined as: (1) conviction for the commission of any act or acts constituting a felony under\nthe laws of the United States or any state thereof; (2) action toward the Company involving dishonesty; (3) refusal to abide by or follow\nreasonable written directions of the CEO, which does not cease within ten business days after such written notice regarding such refusal has\nbeen given to you by the CEO; (4) gross nonfeasance which does not cease within ten business days after written notice regarding such\nnonfeasance has been given to you by the CEO; or (5) failure to comply with the provisions of Paragraphs 1, 2(a) or 2(b) of this Agreement, or\nother willful conduct which is intended to have and does have a material adverse impact on the Company.\n(g) In order to receive Separation Pay and the continued benefits described in Paragraph 2(c) and the payments described in Paragraph 2(d) and\n2(e) above, you will be required to sign a separation agreement that is satisfactory to the Company and includes, but is not limited to, a general\nwaiver and release of all claims and potential claims against the Company and a non-disparagement provision.\n(h) To the extent required by Section 409A of the Code, and applicable guidance issued thereunder, payments under Paragraphs 2(c), 2(d) and 2(e)\nthat would otherwise be payable during the six-month period immediately following your termination of employment by the Company shall\ninstead be paid on the first business day after the expiration of such six-month period.\n(i) Notwithstanding any other provision of this Agreement to the contrary, in the event you fail to comply with Paragraphs 1, 2(a) or 2(b) above,\nall of your rights hereunder to any future payments or benefits as described in Paragraphs 2(c), 2(d) and 2(e) above, and all rights with respect\nto any unexercised stock options you may have shall be forfeited; provided that, the foregoing shall not apply if such failure of compliance\nwith Paragraphs 2(a) or 2(b) commences following an Acceleration Event (as defined in the Company’s 2003 Equity Incentive Plan).\n3. If you commit a breach of any of the provisions of Paragraphs 1 and 2 of this Agreement, the Company shall have the right to have such\nprovisions specifically enforced and to seek temporary, preliminary and/or permanent injunctive relief, without limitation to any available\nforms of equitable or other relief to which the Company may be entitled, by any court having jurisdiction without the necessity of posting a\nbond or other security. You hereby acknowledge and agree that any such breach or anticipatory or threatened breach will cause irreparable\ninjury to the Company and that money damages will not provide an adequate remedy to the Company.\n4. Intellectual Property. You acknowledge that all discoveries, innovations, designs and useful ideas that you may originate which relate to or\nwould be useful to the Company’s business, including those developed on your own time, shall vest in the Company on the date they are\noriginated and shall become the exclusive property of the Company. Without additional consideration, you further agree that you will sign all\nnecessary applications with respect to such property which the Company may prepare at its own expense.\n5. Severability & Governing Law. All provisions of this Agreement are severable. If any provision of this Agreement or the application of any\nprovision of the Agreement is determined to be invalid or unenforceable to any extent or for any reason, all other provisions of this Agreement\nwill remain in full force and effect and will continue to be enforceable to the fullest extent permitted by law, except that if the restraints in\nParagraph 2(b) are held invalid or unenforceable in their entirety the Company shall have no obligation to make the payments or provide the\nbenefits specified in Paragraphs 2(c), 2(d) and 2(e). In the event that any provision herein is deemed invalid or unenforceable, you agree that\nthe Court shall modify the provision so as to make it enforceable to the fullest extent permitted by law. This Agreement shall be governed by\nthe laws of the State of New York, applicable to contracts and to be performed therein, without regard to its conflicts of laws principles.\n6. Waiver. The failure of the Company to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the\nsame or of the right of the Company to enforce the same. Waiver by the Company of any breach or default by you (or by any other associate)\nof any term or provision of this Agreement (or any similar agreement between the Company and you or any other associate) shall not operate\nas a waiver of any other breach or default.\n7. Entire Agreement. Except as set forth in the next sentence, you hereby agree that this Agreement supersedes any other agreement you may\nhave with the Company with respect to severance, non-solicitation of associates and non-competition. In the event a Change in Control (as\ndefined in the AnnTaylor Stores Corporation Special Severance Plan) occurs prior to the termination of your employment, you will be eligible\nfor benefits pursuant to the terms of such Special Severance Plan (as then in effect) and this Agreement shall become null and void, other than\nthe provisions set forth in Paragraph 1.\n8. At-Will Employment. Nothing in this Agreement constitutes a contract of continuing employment. Your employment is and will continue to be\n“at-will” which means it is for no fixed term or duration and either you or the Company may terminate the employment relationship at any\ntime with or without cause and for any reason or no reason, with or without prior notice. Please sign below to indicate your agreement to the\nterms and conditions of this Agreement.\n9. Nothing in this Agreement shall affect or impair any rights you may have to indemnification for attorneys’ fees, costs, and/or expenses\npursuant to applicable statutes, D&O insurance, Certificates of Incorporation and Bylaws of the Company, its affiliates or subsidiaries.\nYou must sign and return this Agreement by June 6, 2008, if you wish to receive your 2008 increase, your 2008 restricted stock grant, be\neligible to participate in the Restricted Cash Feature under the AMIP Plan, and be eligible for the payments described in paragraph 2(c), 2(d) and\n2(e) above.\nANN TAYLOR:\nASSOCIATE:\nBY: /s/ Mark G. Morrison\n/s/ Brian Lynch\nMark G. Morrison\nBrian Lynch\nExecutive Vice President, Human Resources\nPresident, Ann Taylor Factory\nDate: 6/9/08\nDate: 6/9/08	EX-10.5 6 dex105.htm CONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION AGREEMENT Exhibit 10.5\nCONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION AGREEMENT\nAs an associate of Ann Taylor, Inc. (the “Company”), you will have access to or may develop trade secrets, intellectual property, and other\nconfidential and proprietary information of the Company. Therefore, in consideration of your 2008 salary increase, your 2008 restricted stock grant, your becoming eligible to participate in the Restricted Cash Feature under the AMIP Plan, the Restructuring Program Bonus and the payments described in Paragraph 2 below, benefits that you will not be eligible for if you do not sign this Agreement, and in recognition of the highly competitive nature of the Company’s business, you agree as follows: 1.\n@)\n(b)\n©\n(a)\n(b)\nProtection of Confidential Information.\nYou acknowledge that your employment by the Company involves your obtaining knowledge of Confidential Information (as defined below)\nregarding the business and affairs of the Company.\nAccordingly, you agree that:\n(i) except in compliance with legal process, you will keep secret all Confidential Information and other confidential matters of the Company\nwhich are not otherwise in the public domain and will not disclose them to anyone outside of the Company, wherever located (other than\nto a person to whom disclosure is reasonably necessary or appropriate in connection with the performance of your duties as an employee\nof the Company), either during or after your employment, except with the prior written consent of the Chief Executive Officer or the\nGeneral Counsel of the Company. In the event that you are required to disclose any Confidential Information or other confidential\nmatters of the Company to comply with legal process, you shall provide reasonable advance notice of such legal process to the General\nCounsel of the Company prior to disclosure of any Confidential Information or confidential matters and will not challenge the\nCompany’s standing or ability to seek an order of protection or otherwise seek to prevent or limit disclosure pursuant to such legal\nprocess consistent with applicable law;\n(i) you will deliver promptly to the Company on termination of your employment or at any other time the Company may so request, all\nmemoranda, notes, records, customer lists, reports and other documents (whether in paper or electronic form and all copies thereof)\nrelating to the business of the Company and all other Company property which you obtained or developed while employed by, or\notherwise serving or acting on behalf of, the Company and which you may then possess or have under your control, whether directly or\nindirectly; and\n(iii) you will not use Confidential Information for your personal benefit or for the benefit of another person or entity.\nFor purposes of this Agreement, “Confidential Information” refers to information of the Company (including its affiliated companies) or its\nsuppliers, technology service providers, licensors, clients, and employees, including without limitation information relating to designs,\nproducts, processes, formulas, merchandising, real estate strategy, contract terms, client lists, sourcing information and strategies, technology,\nmarketing plans, advertising, corporate assessments and strategic plans, financial and statistical information, accounting information, pricing\nand business affairs, associate compensation and relative skills and abilities, which have been or are disclosed or available to you and which\nare either designated at the time of disclosure as confidential or which you know or have reason to know are confidential, regardless of the\nform or media in which such information is disclosed.\nNon-solicitation of Associates; Non-competition.\nDuring your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Solicitation Period”), you shall not directly or indirectly, (1) solicit, induce, or attempt to influence any associate at\nthe director level or above to leave his or her employment with the Company or (2) hire or attempt to hire any associate of the Company at the\ndirector level or above, directly or indirectly through a new employer or other person or entity, to join you in the pursuit of any business\nactivity (whether or not such activity involves engaging or participating in a business that competes, or plans to compete, with the Company or\nany of its products). Should you violate this provision, in addition to the other remedies the Company may pursue hereunder, the Non-\nSolicitation Period will be extended by the number of months you were in violation of this Paragraph 2(a) and you shall have no further rights\nunder Paragraphs 2(c), 2(d) and 2(e).\nDuring your employment and for a period of 12 months after your separation from the Company for any reason\n©\n(d)\n(®)\n®\n(8)\nwhatsoever, whether voluntary or involuntary (the “Non-Competition Period”), you shall not, directly or indirectly, without the prior written\nconsent of the Company, work for, be employed, affiliated, engaged or associated with or contribute to the efforts (as an employee, owner,\nstockholder, partner, director, officer, consultant or otherwise) of a business that is, or plans to be, a Competitor (as defined herein) of the\nCompany at the time of termination. As used herein, “Competitor” means a business or other entity engaged in the manufacture, design and/or\nsale of women’s apparel in the United States. Should you violate this provision, in addition to the other remedies the Company may pursue\nhereunder, the Non-Competition Period will be extended by the number of months you were in violation of this Paragraph 2(b) and you shall\nhave no further rights under Paragraphs 2(c), 2(d) and 2(e). Notwithstanding the foregoing, passive ownership of less than 2% of any class of\nsecurities of a public company shall not violate this Section 2(b).\nIf you are terminated by the Company without cause (as defined Paragraph 2(f) below, “Cause”) or if you resign from your employment,\nduring the Non-Competition Period the Company shall pay you an amount equivalent to your base salary times 1.5 (“Separation Pay™),\npayable in substantially equal installments in accordance with the Company’s regular payroll cycle, and you will continue to receive all\nbenefits under the Company’s medical, dental and vision benefit plans to the same extent as if you were an employee of the Company. If you\nresign from your employment, the Company may waive the provisions of Paragraph 2(b) or shorten the Non-Competition Period by providing\nyou written notice of the waiver or the shortened Non-Competition Period within 10 business days of your resignation, in which case (i) you\nwill only be bound by the restrictions in Paragraph 2(b) above during the shortened Non-Competition Period (but will continue to remain\nbound by the restrictions in Paragraphs 1 and 2(a) above), and (ii) the Company will have no obligation to pay you Separation Pay or continue\nyour benefits if it waives the provisions of Paragraph 2(b) above or if the Company shortens the Non-Competition Period pursuant to this\nParagraph 2(c), the Company will only pay you a pro rata portion of the Separation Pay as prorated in proportion to the shortened Non-\nCompetition Period and continue your benefits only during the shortened Non-Competition Period.\nIf you are terminated by the Company without Cause and have never been a “Section 162(m) Employee” (as defined below), in addition to the\nSeparation Pay you will also be entitled to an amount equal to your targeted bonus under the Management Performance Compensation Plan\n(“AMIP”) (or if the AMIP Plan is not then in effect, under the annual cash bonus plan in effect at the time of the termination of your\nemployment), for the season in which you are terminated (or year in which you are terminated if the bonus plan target for you is then an annual\ntarget). For those associates who in any year have been or become “covered employees” within the meaning of Section 162(m) (“Section\n162(m) Employee”) of the Internal Revenue Code of 1986, as amended (the “Code”), thereafter if you are terminated by the Company without\nCause, you will also be eligible for a bonus under the AMIP Plan (or if the AMIP Plan is not then in effect, under the annual cash bonus plan\nin effect at the time of the termination of your employment), for the season in which you are terminated (or year in which you are terminated if\nthe bonus plan target for you is then an annual target) as if you had remained an active associate for the season or entire year, as the case may\nbe, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the AMIP bonus, if any, payable\nunder this Paragraph 2(d) when bonuses are paid to other Company executives under the AMIP Plan, or the annual cash bonus plan in effect at\nthe time of termination.\nIf you are terminated by the Company without Cause, you will also receive payment of all monies earned but not yet vested under the\nRestricted Cash feature of the AMIP Plan, including monies earned or to be earned in the season in which you are terminated (or year in which\nyou are terminated if the restricted cash feature target for you is then an annual target) as if you had remained an active associate for the season\nor entire year, as the case may be, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the\nearned monies in the restricted cash feature of the AMIP Plan, if any, in accordance with the payment schedule for active associates.\nFor purposes of this Agreement, “Cause” shall be defined as: (1) conviction for the commission of any act or acts constituting a felony under\nthe laws of the United States or any state thereof; (2) action toward the Company involving dishonesty; (3) refusal to abide by or follow\nreasonable written directions of the CEO, which does not cease within ten business days after such written notice regarding such refusal has\nbeen given to you by the CEO; (4) gross nonfeasance which does not cease within ten business days after written notice regarding such\nnonfeasance has been given to you by the CEO; or (5) failure to comply with the provisions of Paragraphs 1, 2(a) or 2(b) of this Agreement, or\nother willful conduct which is intended to have and does have a material adverse impact on the Company.\nIn order to receive Separation Pay and the continued benefits described in Paragraph 2(c) and the payments described in Paragraph 2(d) and\n2(e) above, you will be required to sign a separation agreement that is satisfactory to the Company and includes, but is not limited to, a general\nwaiver and release of all claims and potential claims against the Company and a non-disparagement provision.\n(h)\nTo the extent required by Section 409A of the Code, and applicable guidance issued thereunder, payments under Paragraphs 2(c), 2(d) and 2(e)\nthat would otherwise be payable during the six-month period immediately following your termination of employment by the Company shall\ninstead be paid on the first business day after the expiration of such six-month period.\nNotwithstanding any other provision of this Agreement to the contrary, in the event you fail to comply with Paragraphs 1, 2(a) or 2(b) above,\nall of your rights hereunder to any future payments or benefits as described in Paragraphs 2(c), 2(d) and 2(e) above, and all rights with respect\nto any unexercised stock options you may have shall be forfeited; provided that, the foregoing shall not apply if such failure of compliance\nwith Paragraphs 2(a) or 2(b) commences following an Acceleration Event (as defined in the Company’s 2003 Equity Incentive Plan).\nIf you commit a breach of any of the provisions of Paragraphs 1 and 2 of this Agreement, the Company shall have the right to have such\nprovisions specifically enforced and to seek temporary, preliminary and/or permanent injunctive relief, without limitation to any available\nforms of equitable or other relief to which the Company may be entitled, by any court having jurisdiction without the necessity of posting a\nbond or other security. You hereby acknowledge and agree that any such breach or anticipatory or threatened breach will cause irreparable\ninjury to the Company and that money damages will not provide an adequate remedy to the Company.\nIntellectual Property. You acknowledge that all discoveries, innovations, designs and useful ideas that you may originate which relate to or\nwould be useful to the Company’s business, including those developed on your own time, shall vest in the Company on the date they are\noriginated and shall become the exclusive property of the Company. Without additional consideration, you further agree that you will sign all\nnecessary applications with respect to such property which the Company may prepare at its own expense.\nSeverability & Governing Law. All provisions of this Agreement are severable. If any provision of this Agreement or the application of any\nprovision of the Agreement is determined to be invalid or unenforceable to any extent or for any reason, all other provisions of this Agreement\nwill remain in full force and effect and will continue to be enforceable to the fullest extent permitted by law, except that if the restraints in\nParagraph 2(b) are held invalid or unenforceable in their entirety the Company shall have no obligation to make the payments or provide the\nbenefits specified in Paragraphs 2(c), 2(d) and 2(e). In the event that any provision herein is deemed invalid or unenforceable, you agree that\nthe Court shall modify the provision so as to make it enforceable to the fullest extent permitted by law. This Agreement shall be governed by\nthe laws of the State of New York, applicable to contracts and to be performed therein, without regard to its conflicts of laws principles.\nWaiver. The failure of the Company to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the\nsame or of the right of the Company to enforce the same. Waiver by the Company of any breach or default by you (or by any other associate)\nof any term or provision of this Agreement (or any similar agreement between the Company and you or any other associate) shall not operate\nas a waiver of any other breach or default.\nEntire Agreement. Except as set forth in the next sentence, you hereby agree that this Agreement supersedes any other agreement you may\nhave with the Company with respect to severance, non-solicitation of associates and non-competition. In the event a Change in Control (as\ndefined in the AnnTaylor Stores Corporation Special Severance Plan) occurs prior to the termination of your employment, you will be eligible\nfor benefits pursuant to the terms of such Special Severance Plan (as then in effect) and this Agreement shall become null and void, other than\nthe provisions set forth in Paragraph 1.\n \nAt-Will Employment. Nothing in this Agreement constitutes a contract of continuing employment. Your employment is and will continue to be\n“at-will” which means it is for no fixed term or duration and either you or the Company may terminate the employment relationship at any\ntime with or without cause and for any reason or no reason, with or without prior notice. Please sign below to indicate your agreement to the\nterms and conditions of this Agreement.\nNothing in this Agreement shall affect or impair any rights you may have to indemnification for attorneys’ fees, costs, and/or expenses\npursuant to applicable statutes, D&O insurance, Certificates of Incorporation and Bylaws of the Company, its affiliates or subsidiaries.\nYou must sign and return this Agreement by June 6, 2008, if you wish to receive your 2008 increase, your 2008 restricted stock grant, be\neligible to participate in the Restricted Cash Feature under the AMIP Plan, and be eligible for the payments described in paragraph 2(c), 2(d) and\n2(e) above.\nANN TAYLOR: ASSOCIATE:\nBY: /s/Mark G. Morrison /s/ Brian Lynch\nMark G. Morrison Brian Lynch\nExecutive Vice President, Human Resources President, Ann Taylor Factory\nDate: 6/9/08 Date: 6/9/08	EX-10.5 6 lex105.htm CONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION\nAGREEMENT\nExhibit 10.5\nCONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION AGREEMENT\nAs an associate of Ann Taylor, Inc. (the "Company"), you will have access to or may develop trade secrets, intellectual property, and other\nconfidential and proprietary information of the Company. Therefore, in consideration of your 2008 salary increase, your 2008 restricted stock grant,\nyour\nbecoming\neligible to participate in the Restricted Cash Feature under the AMIP Plan, the Restructuring Program Bonus and the payments\ndescribed in Paragraph 2 below, benefits that you will not be eligible for if you do not sign this Agreement, and in recognition of the highly\ncompetitive nature of the Company's business, you agree as follows:\n1.\nProtection of Confidential Information.\n(a)\nYou acknowledge that your employment by the Company involves your obtaining knowledge of Confidential Information (as defined below)\nregarding the business and affairs of the Company.\n(b) Accordingly, you agree that:\n(i)\nexcept in compliance with legal process, you will keep secret all Confidentia Information and other confidential matters of the Company\nwhich are not otherwise in the public domain and will not disclose them to anyone outside of the Company, wherever located (other than\nto a person to whom disclosure is reasonably necessary or appropriate in connection with the performance of your duties as an employee\nof the Company), either during or after your employment, except with the prior written consent of the Chief Executive Officer or the\nGeneral Counsel of the Company. In the event that you are required to disclose any Confidential Information or other confidential\nmatters of the Company to comply with legal process, you shall provide reasonable advance notice of such legal process to the General\nCounsel of the Company prior to disclosure of any Confidential Information or confidential matters and will not challenge the\nCompany's standing or ability to seek an order of protection or otherwise seek to prevent or limit disclosure pursuant to such legal\nprocess consistent with applicable law;\n(ii)\nyou will deliver promptly to the Company on termination of your employment or at any other time the Company may so request, all\nmemoranda, notes, records, customer lists, reports and other documents (whether in paper or electronic form and all copies thereof)\nrelating to the business of the Company and all other Company property which you obtained or developed while employed by, or\notherwise serving or acting on behalf of, the Company and which you may then possess or have under your control, whether directly or\nindirectly; and\n(iii) you will not use Confidential Information for your personal benefit or for the benefit of another person or entity.\n(c)\nFor purposes of this Agreement, "Confidential Information" refers to information of the Company (including its affiliated companies) or its\nsuppliers, technology service providers, licensors, clients, and employees, including without limitation information relating to designs,\nproducts, processes, formulas, merchandising, real estate strategy, contract terms, client lists, sourcing information and strategies, technology,\nmarketing plans, advertising, corporate assessments and strategic plans, financial and statistical information, accounting information, pricing\nand business affairs, associate compensation and relative skills and abilities, which have been or are disclosed or available to you and which\nare either designated at the time of disclosure as confidential or which you know or have reason to know are confidential, regardless of the\nform or media in which such information is disclosed.\n2.\nNon-solicitation of Associates; Non-competition.\n(a) During your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the "Non-Solicitation Period"), you shall not directly or indirectly, (1) solicit, induce, or attempt to influence any associate at\nthe director level or above to leave his or her employment with the Company or (2) hire or attempt to hire any associate of the Company at the\ndirector level or above, directly or indirectly through a new employer or other person or entity, to join you in the pursuit of any business\nactivity (whether or not such activity involves engaging or participating in a business that competes, or plans to compete, with the Company or\nany of its products). Should you violate this provision, in addition to the other remedies the Company may pursue hereunder, the Non-\nSolicitation Period will be extended by the number of months you were in violation of this Paragraph 2(a) and you shall have no further rights\nunder Paragraphs 2(c), 2(d) and 2(e).\n(b)\nDuring your employment and for a period of 12 months after your separation from the Company for any reason\nwhatsoever, whether voluntary or involuntary (the "Non-Competition Period"), you shall not, directly or indirectly, without the prior written\nconsent of the Company, work for, be employed, affiliated, engaged or associated with or contribute to the efforts (as an employee, owner,\nstockholder, partner, director, officer, consultant or otherwise) of a business that is, or plans to be, a Competitor (as defined herein) of the\nCompany at the time of termination. As used herein, "Competitor" means a business or other entity engaged in the manufacture, design and/or\nsale of women's apparel in the United States. Should you violate this provision, in addition to the other remedies the Company may pursue\nhereunder, the Non-Competition Period will be extended by the number of months you were in violation of this Paragraph 2(b) and you shall\nhave no further rights under Paragraphs 2(c), 2(d) and 2(e). Notwithstanding the foregoing, passive ownership of less than 2% of any class of\nsecurities of a public company shall not violate this Section 2(b).\n(c)\nIf you are terminated by the Company without cause (as defined Paragraph 2(f) below, "Cause") or if you resign from your employment,\nduring the Non-Competition Period the Company shall pay you an amount equivalent to your base salary times 1.5 ("Separation Pay"),\npayable in substantially equal installments in accordance with the Company's regular payroll cycle, and you will continue to receive all\nbenefits under the Company's medical, dental and vision benefit plans to the same extent as if you were an employee of the Company. If you\nresign from your employment, the Company may waive the provisions of Paragraph 2(b) or shorten the Non-Competition Period by providing\nyou\nwritten\nnotice\nof\nthe\nwaiver\nor\nthe\nshortened\nNon-Competition\nPeriod\nwithin\n10\nbusiness\ndays\nof\nyour\nresignation,\nin\nwhich\ncase\n(i)\nyou\nwill only be bound by the restrictions in Paragraph 2(b) above during the shortened Non-Competition Period (but will continue to remain\nbound by the restrictions in Paragraphs 1 and 2(a) above), and (ii) the Company will have no obligation to pay you Separation Pay or continue\nyour\nbenefits\nif\nit\nwaives\nthe\nprovisions\nof\nParagraph\n2(b)\nabove\nor\nif\nthe\nCompany\nshortens\nthe\nNon-Competition\nPeriod\npursuant\nto\nthis\nParagraph 2(c), the Company will only pay you a pro rata portion of the Separation Pay as prorated in proportion to the shortened Non-\nCompetition Period and continue your benefits only during the shortened Non-Competition Period.\n(d)\nIf you are terminated by the Company without Cause and have never been a "Section 162(m) Employee" (as defined below), in addition to the\nSeparation Pay you will also be entitled to an amount equal to your targeted bonus under the Management Performance Compensation Plan\n("AMIP") (or if the AMIP Plan is not then in effect, under the annual cash bonus plan in effect at the time of the termination of your\nemployment), for the season in which you are terminated (or year in which you are terminated if the bonus plan target for you is then an annual\ntarget). For those associates who in any year have been or become "covered employees" within the meaning of Section 162(m) ("Section\n162(m) Employee") of the Internal Revenue Code of 1986, as amended (the "Code"), thereafter if you are terminated by the Company without\nCause, you will also be eligible for a bonus under the AMIP Plan (or if the AMIP Plan is not then in effect, under the annual cash bonus plan\nin effect at the time of the termination of your employment), for the season in which you are terminated (or year in which you are terminated if\nthe bonus plan target for you is then an annual target) as if you had remained an active associate for the season or entire year, as the case may\nbe, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the AMIP bonus, if any, payable\nunder this Paragraph 2(d) when bonuses are paid to other Company executives under the AMIP Plan, or the annual cash bonus plan in effect at\nthe time of termination.\n(e)\nIf you are terminated by the Company without Cause, you will also receive payment of all monies earned but not yet vested under the\nRestricted Cash feature of the AMIP Plan, including monies earned or to be earned in the season in which you are terminated (or year in which\nyou are terminated if the restricted cash feature target for you is then an annual target) as if you had remained an active associate for the season\nor entire year, as the case may be, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the\nearned monies in the restricted cash feature of the AMIP Plan, if any, in accordance with the payment schedule for active associates.\n(f)\nFor purposes of this Agreement, "Cause" shall be defined as: (1) conviction for the commission of any act or acts constituting a felony under\nthe laws of the United States or any state thereof; (2) action toward the Company involving dishonesty; (3) refusal to abide by or follow\nreasonable\nwritten\ndirections\nof\nthe\nCEO,\nwhich\ndoes\nnot\ncease\nwithin\nten\nbusiness\ndays\nafter\nsuch\nwritten\nnotice\nregarding\nsuch\nrefusal\nhas\nbeen given to you by the CEO; (4) gross nonfeasance which does not cease within ten business days after written notice regarding such\nnonfeasance has been given to you by the CEO; or (5) failure to comply with the provisions of Paragraphs 1, 2(a) or 2(b) of this Agreement, or\nother willful conduct which is intended to have and does have a material adverse impact on the Company.\n(g)\nIn order to receive Separation Pay and the continued benefits described in Paragraph 2(c) and the payments described in Paragraph 2(d) and\n2(e) above, you will be required to sign a separation agreement that is satisfactory to the Company and includes, but is not limited to, a general\nwaiver and release of all claims and potential claims against the Company and a non-disparagement provision.\n(h)\nTo the extent required by Section 409A of the Code, and applicable guidance issued thereunder, payments under Paragraphs 2(c), 2(d) and 2(e)\nthat would otherwise be payable during the six-month period immediately following your termination of employment by the Company shall\ninstead be paid on the first business day after the expiration of such six-month period.\n(i)\nNotwithstanding any other provision of this Agreement to the contrary, in the event you fail to comply with Paragraphs 1, 2(a) or 2(b) above,\nall\nof\nyour\nrights\nhereunder\nto\nany\nfuture\npayments\nor\nbenefits\nas\ndescribed\nin\nParagraphs\n2(c),\n2(d)\nand\n2(e)\nabove,\nand\nall\nrights\nwith\nrespect\nto any unexercised stock options you may have shall be forfeited; provided that, the foregoing shall not apply if such failure of compliance\nwith Paragraphs 2(a) or 2(b) commences following an Acceleration Event (as defined in the Company's 2003 Equity Incentive Plan).\n3.\nIf you commit a breach of any of the provisions of Paragraphs 1 and 2 of this Agreement, the Company shall have the right to have such\nprovisions specifically enforced and to seek temporary, preliminary and/or permanent injunctive relief, without limitation to any available\nforms of equitable or other relief to which the Company may be entitled, by any court having jurisdiction without the necessity of posting a\nbond or other security. You hereby acknowledge and agree that any such breach or anticipatory or threatened breach will cause irreparable\ninjury to the Company and that money damages will not provide an adequate remedy to the Company.\n4. Intellectual Property.. You acknowledge that all discoveries, innovations, designs and useful ideas that you may originate which relate to or\nwould be useful to the Company's business, including those developed on your own time, shall vest in the Company on the date they are\noriginated and shall become the exclusive property of the Company. Without additional consideration, you further agree that you will sign all\nnecessary applications with respect to such property which the Company may prepare at its own expense.\n5.\nSeverability. & Governing Law. All provisions of this Agreement are severable. If any provision of this Agreement or the application of any\nprovision of the Agreement is determined to be invalid or unenforceable to any extent or for any reason, all other provisions of this Agreement\nwill remain in full force and effect and will continue to be enforceable to the fullest extent permitted by law, except that if the restraints in\nParagraph 2(b) are held invalid or unenforceable in their entirety the Company shall have no obligation to make the payments or provide the\nbenefits specified in Paragraphs 2(c), 2(d) and 2(e). In the event that any provision herein is deemed invalid or unenforceable, you agree that\nthe Court shall modify the provision so as to make it enforceable to the fullest extent permitted by law. This Agreement shall be governed by\nthe laws of the State of New York, applicable to contracts and to be performed therein, without regard to its conflicts of laws principles.\n6.\nWaiver. The failure of the Company to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the\nsame or of the right of the Company to enforce the same. Waiver by the Company of any breach or default by you (or by any other associate)\nof any term or provision of this Agreement (or any similar agreement between the Company and you or any other associate) shall not operate\nas a waiver of any other breach or default.\n7.\nEntire Agreement. Except as set forth in the next sentence, you hereby agree that this Agreement supersedes any other agreement you may\nhave with the Company with respect to severance, non-solicitation of associates and non-competition. In the event a Change in Control (as\ndefined in the AnnTaylor Stores Corporation Special Severance Plan) occurs prior to the termination of your employment, you will be eligible\nfor benefits pursuant to the terms of such Special Severance Plan (as then in effect) and this Agreement shall become null and void, other than\nthe provisions set forth in Paragraph 1.\n8.\nAt-Will Employment. Nothing in this Agreement constitutes a contract of continuing employment. Your employment is and will continue to be\n"at-will" which means it is for no fixed term or duration and either you or the Company may terminate the employment relationship at any\ntime with or without cause and for any reason or no reason, with or without prior notice. Please sign below to indicate your agreement to the\nterms and conditions of this Agreement.\n9.\nNothing in this Agreement shall affect or impair any rights you may have to indemnification for attorneys' fees, costs, and/or expenses\npursuant to applicable statutes, D&O insurance, Certificates of Incorporation and Bylaws of the Company, its affiliates or subsidiaries.\nYou must sign and return this Agreement by June 6, 2008, if you wish to receive your 2008 increase, your 2008 restricted stock grant, be\neligible to participate in the Restricted Cash Feature under the AMIP Plan, and be eligible for the payments described in paragraph 2(c), 2(d) and\n2(e) above.\nANN TAYLOR:\nASSOCIATE:\nBY: /s/ Mark G. Morrison\n/s/ Brian Lynch\nMark G. Morrison\nBrian Lynch\nExecutive Vice President, Human Resources\nPresident, Ann Taylor Factory\nDate: 6/9/08\nDate: 6/9/08	EX-10.5 6 dex105.htm CONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION\nAGREEMENT\nExhibit 10.5\nCONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON -COMPETITION AGREEMENT\nAs an associate of Ann Taylor, Inc. (the “Company”), you will have access to or may develop trade secrets, intellectual property, and other\nconfidential and proprietary information of the Company. Therefore, in consideration of your 2008 salary increase, your 2008 restricted stock grant,\nyour becoming eligible to participate in the Restricted Cash Feature under the AMIP Plan, the Restructuring Program Bonus and the payments\ndescribed in Paragraph 2 below, benefits that you will not be eligible for if you do not sign this Agreement, and in recognition of the highly\ncompetitive nature of the Company’s business, you agree as follows:\n1. Protection of Confidential Information.\n(a) You acknowledge that your employment by the Company involves your obtaining knowledge of Confidential Information (as defined below)\nregarding the business and affairs of the Company.\n(b) Accordingly, you agree that:\n(i) except in compliance with legal process, you will keep secret all Confidential Information and other confidential matters of the Company\nwhich are not otherwise in the public domain and will not disclose them to anyone outside of the Company, wherever located (other than\nto a person to whom disclosure is reasonably necessary or appropriate in connection with the performance of your duties as an employee\nof the Company), either during or after your employment, except with the prior written consent of the Chief Executive Officer or the\nGeneral Counsel of the Company. In the event that you are required to disclose any Confidential Information or other confidential\nmatters of the Company to comply with legal process, you shall provide reasonable advance notice of such legal process to the General\nCounsel of the Company prior to disclosure of any Confidential Information or confidential matters and will not challenge the\nCompany’s standing or ability to seek an order of protection or otherwise seek to prevent or limit disclosure pursuant to such legal\nprocess consistent with applicable law;\n(ii) you will deliver promptly to the Company on termination of your employment or at any other time the Company may so request, all\nmemoranda, notes, records, customer lists, reports and other documents (whether in paper or electronic form and all copies thereof)\nrelating to the business of the Company and all other Company property which you obtained or developed while employed by, or\notherwise serving or acting on behalf of, the Company and which you may then possess or have under your control, whether directly or\nindirectly; and\n(iii) you will not use Confidential Information for your personal benefit or for the benefit of another person or entity.\n(c) For purposes of this Agreement, “Confidential Information” refers to information of the Company (including its affiliated companies) or its\nsuppliers, technology service providers, licensors, clients, and employees, including without limitation information relating to designs,\nproducts, processes, formulas, merchandising, real estate strategy, contract terms, client lists, sourcing information and strategies, technology,\nmarketing plans, advertising, corporate assessments and strategic plans, financial and statistical information, accounting information, pricing\nand business affairs, associate compensation and relative skills and abilities, which have been or are disclosed or available to you and which\nare either designated at the time of disclosure as confidential or which you know or have reason to know are confidential, regardless of the\nform or media in which such information is disclosed.\n2. Non-solicitation of Associates; Non-competition.\n(a) During your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Solicitation Period”), you shall not directly or indirectly, (1) solicit, induce, or attempt to influence any associate at\nthe director level or above to leave his or her employment with the Company or (2) hire or attempt to hire any associate of the Company at the\ndirector level or above, directly or indirectly through a new employer or other person or entity, to join you in the pursuit of any business\nactivity (whether or not such activity involves engaging or participating in a business that competes, or plans to compete, with the Company or\nany of its products). Should you violate this provision, in addition to the other remedies the Company may pursue hereunder, the Non-\nSolicitation Period will be extended by the number of months you were in violation of this Paragraph 2(a) and you shall have no further rights\nunder Paragraphs 2(c), 2(d) and 2(e).\n(b) During your employment and for a period of 12 months after your separation from the Company for any reason\nwhatsoever, whether voluntary or involuntary (the “Non-Competition Period”), you shall not, directly or indirectly, without the prior written\nconsent of the Company, work for, be employed, affiliated, engaged or associated with or contribute to the efforts (as an employee, owner,\nstockholder, partner, director, officer, consultant or otherwise) of a business that is, or plans to be, a Competitor (as defined herein) of the\nCompany at the time of termination. As used herein, “Competitor” means a business or other entity engaged in the manufacture, design and/or\nsale of women’s apparel in the United States. Should you violate this provision, in addition to the other remedies the Company may pursue\nhereunder, the Non-Competition Period will be extended by the number of months you were in violation of this Paragraph 2(b) and you shall\nhave no further rights under Paragraphs 2(c), 2(d) and 2(e). Notwithstanding the foregoing, passive ownership of less than 2% of any class of\nsecurities of a public company shall not violate this Section 2(b).\n(c) If you are terminated by the Company without cause (as defined Paragraph 2(f) below, “Cause”) or if you resign from your employment,\nduring the Non-Competition Period the Company shall pay you an amount equivalent to your base salary times 1.5 (“Separation Pay”),\npayable in substantially equal installments in accordance with the Company’s regular payroll cycle, and you will continue to receive all\nbenefits under the Company’s medical, dental and vision benefit plans to the same extent as if you were an employee of the Company. If you\nresign from your employment, the Company may waive the provisions of Paragraph 2(b) or shorten the Non-Competition Period by providing\nyou written notice of the waiver or the shortened Non-Competition Period within 10 business days of your resignation, in which case (i) you\nwill only be bound by the restrictions in Paragraph 2(b) above during the shortened Non-Competition Period (but will continue to remain\nbound by the restrictions in Paragraphs 1 and 2(a) above), and (ii) the Company will have no obligation to pay you Separation Pay or continue\nyour benefits if it waives the provisions of Paragraph 2(b) above or if the Company shortens the Non-Competition Period pursuant to this\nParagraph 2(c), the Company will only pay you a pro rata portion of the Separation Pay as prorated in proportion to the shortened Non-\nCompetition Period and continue your benefits only during the shortened Non-Competition Period.\n(d) If you are terminated by the Company without Cause and have never been a “Section 162(m) Employee” (as defined below), in addition to the\nSeparation Pay you will also be entitled to an amount equal to your targeted bonus under the Management Performance Compensation Plan\n(“AMIP”) (or if the AMIP Plan is not then in effect, under the annual cash bonus plan in effect at the time of the termination of your\nemployment), for the season in which you are terminated (or year in which you are terminated if the bonus plan target for you is then an annual\ntarget). For those associates who in any year have been or become “covered employees” within the meaning of Section 162(m) (“Section\n162(m) Employee”) of the Internal Revenue Code of 1986, as amended (the “Code”), thereafter if you are terminated by the Company without\nCause, you will also be eligible for a bonus under the AMIP Plan (or if the AMIP Plan is not then in effect, under the annual cash bonus plan\nin effect at the time of the termination of your employment), for the season in which you are terminated (or year in which you are terminated if\nthe bonus plan target for you is then an annual target) as if you had remained an active associate for the season or entire year, as the case may\nbe, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the AMIP bonus, if any, payable\nunder this Paragraph 2(d) when bonuses are paid to other Company executives under the AMIP Plan, or the annual cash bonus plan in effect at\nthe time of termination.\n(e) If you are terminated by the Company without Cause, you will also receive payment of all monies earned but not yet vested under the\nRestricted Cash feature of the AMIP Plan, including monies earned or to be earned in the season in which you are terminated (or year in which\nyou are terminated if the restricted cash feature target for you is then an annual target) as if you had remained an active associate for the season\nor entire year, as the case may be, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the\nearned monies in the restricted cash feature of the AMIP Plan, if any, in accordance with the payment schedule for active associates.\n(f) For purposes of this Agreement, “Cause” shall be defined as: (1) conviction for the commission of any act or acts constituting a felony under\nthe laws of the United States or any state thereof; (2) action toward the Company involving dishonesty; (3) refusal to abide by or follow\nreasonable written directions of the CEO, which does not cease within ten business days after such written notice regarding such refusal has\nbeen given to you by the CEO; (4) gross nonfeasance which does not cease within ten business days after written notice regarding such\nnonfeasance has been given to you by the CEO; or (5) failure to comply with the provisions of Paragraphs 1, 2(a) or 2(b) of this Agreement, or\nother willful conduct which is intended to have and does have a material adverse impact on the Company.\n(g) In order to receive Separation Pay and the continued benefits described in Paragraph 2(c) and the payments described in Paragraph 2(d) and\n2(e) above, you will be required to sign a separation agreement that is satisfactory to the Company and includes, but is not limited to, a general\nwaiver and release of all claims and potential claims against the Company and a non-disparagement provision.\n(h) To the extent required by Section 409A of the Code, and applicable guidance issued thereunder, payments under Paragraphs 2(c), 2(d) and 2(e)\nthat would otherwise be payable during the six-month period immediately following your termination of employment by the Company shall\ninstead be paid on the first business day after the expiration of such six-month period.\n(i) Notwithstanding any other provision of this Agreement to the contrary, in the event you fail to comply with Paragraphs 1, 2(a) or 2(b) above,\nall of your rights hereunder to any future payments or benefits as described in Paragraphs 2(c), 2(d) and 2(e) above, and all rights with respect\nto any unexercised stock options you may have shall be forfeited; provided that, the foregoing shall not apply if such failure of compliance\nwith Paragraphs 2(a) or 2(b) commences following an Acceleration Event (as defined in the Company’s 2003 Equity Incentive Plan).\n3. If you commit a breach of any of the provisions of Paragraphs 1 and 2 of this Agreement, the Company shall have the right to have such\nprovisions specifically enforced and to seek temporary, preliminary and/or permanent injunctive relief, without limitation to any available\nforms of equitable or other relief to which the Company may be entitled, by any court having jurisdiction without the necessity of posting a\nbond or other security. You hereby acknowledge and agree that any such breach or anticipatory or threatened breach will cause irreparable\ninjury to the Company and that money damages will not provide an adequate remedy to the Company.\n4. Intellectual Property. You acknowledge that all discoveries, innovations, designs and useful ideas that you may originate which relate to or\nwould be useful to the Company’s business, including those developed on your own time, shall vest in the Company on the date they are\noriginated and shall become the exclusive property of the Company. Without additional consideration, you further agree that you will sign all\nnecessary applications with respect to such property which the Company may prepare at its own expense.\n5. Severability & Governing Law. All provisions of this Agreement are severable. If any provision of this Agreement or the application of any\nprovision of the Agreement is determined to be invalid or unenforceable to any extent or for any reason, all other provisions of this Agreement\nwill remain in full force and effect and will continue to be enforceable to the fullest extent permitted by law, except that if the restraints in\nParagraph 2(b) are held invalid or unenforceable in their entirety the Company shall have no obligation to make the payments or provide the\nbenefits specified in Paragraphs 2(c), 2(d) and 2(e). In the event that any provision herein is deemed invalid or unenforceable, you agree that\nthe Court shall modify the provision so as to make it enforceable to the fullest extent permitted by law. This Agreement shall be governed by\nthe laws of the State of New York, applicable to contracts and to be performed therein, without regard to its conflicts of laws principles.\n6. Waiver. The failure of the Company to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the\nsame or of the right of the Company to enforce the same. Waiver by the Company of any breach or default by you (or by any other associate)\nof any term or provision of this Agreement (or any similar agreement between the Company and you or any other associate) shall not operate\nas a waiver of any other breach or default.\n7. Entire Agreement. Except as set forth in the next sentence, you hereby agree that this Agreement supersedes any other agreement you may\nhave with the Company with respect to severance, non-solicitation of associates and non-competition. In the event a Change in Control (as\ndefined in the AnnTaylor Stores Corporation Special Severance Plan) occurs prior to the termination of your employment, you will be eligible\nfor benefits pursuant to the terms of such Special Severance Plan (as then in effect) and this Agreement shall become null and void, other than\nthe provisions set forth in Paragraph 1.\n8. At-Will Employment. Nothing in this Agreement constitutes a contract of continuing employment. Your employment is and will continue to be\n“at-will” which means it is for no fixed term or duration and either you or the Company may terminate the employment relationship at any\ntime with or without cause and for any reason or no reason, with or without prior notice. Please sign below to indicate your agreement to the\nterms and conditions of this Agreement.\n9. Nothing in this Agreement shall affect or impair any rights you may have to indemnification for attorneys’ fees, costs, and/or expenses\npursuant to applicable statutes, D&O insurance, Certificates of Incorporation and Bylaws of the Company, its affiliates or subsidiaries.\nYou must sign and return this Agreement by June 6, 2008, if you wish to receive your 2008 increase, your 2008 restricted stock grant, be\neligible to participate in the Restricted Cash Feature under the AMIP Plan, and be eligible for the payments described in paragraph 2(c), 2(d) and\n2(e) above.\nANN TAYLOR:\nASSOCIATE:\nBY: /s/ Mark G. Morrison\n/s/ Brian Lynch\nMark G. Morrison\nBrian Lynch\nExecutive Vice President, Human Resources\nPresident, Ann Taylor Factory\nDate: 6/9/08\nDate: 6/9/08
+3504e06a49433c1456720513186da1bd.pdf	effective_date jurisdiction party term	EX-10.8 18 g20786exv10w8.htm EX-10.8\nExhibit 10.8\n(ANSON LOGO)\nClient Confidentiality & Non-Disclosure Agreement\nThis Agreement by and between TechniScan Medical Systems, Inc. (hereinafter referred to as “Client”) and The Anson Group, LLC (hereinafter\nreferred to as “Anson”), shall govern the conditions of disclosure of confidential information relating to Client’s business (“the Information”).\nThe Information includes all oral and written information, regardless of medium, disclosed to Anson by Client that is labeled or otherwise\nidentified as confidential.\nWith regard to the Information, Anson hereby agrees:\n1. Not to use the Information except for the sole purpose of providing consulting services requested by Client.\n2. To safeguard the Information against disclosure to others with the same degree of care as it exercises with its own information of a similar\nnature; and\n3. Not to disclose the Information to others (except to its employees, agents or consultants who are bound to Anson by a like obligation of\nconfidentiality) without the express written permission of Client, except that Anson shall not be prevented from using or disclosing any of\nthe Information:\na) Which Anson can demonstrate by written records was previously known to it;\nb) Which is now, or becomes in the future, public knowledge other than through acts or omissions of Anson;\nc) Which is lawfully obtained by Anson from sources independent of Client; or\nd) Which Anson is required by law to disclose.\nAnson agrees to provide prompt written notice to Client of any legal requests or compulsion to disclose the Information, and to make only such\ndisclosures as are legally required.\nAnson agrees to return or destroy all documents or other materials provided by Client that constitute the Information, without retaining any\ncopies or extracts thereof, upon request by Client.\nNON-DISCLOSURE AGREEMENT\nPAGE 1\nTechniScan Medical Systems, Inc.\nAnson agrees that the furnishing of the Information to Anson shall not constitute a grant of license to Anson under any legal rights now or\nhereinafter held by Client.\nThis Agreement and all actions related hereto shall be governed by and construed in accordance with the laws (other than the conflict of laws\nrules) of the United States and the State of Indiana.\nThe rights and obligations herein shall bind the Parties and their respective legal representatives, successors, heirs and assigns.\nThis Agreement expresses the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes all prior\nagreements, commitments and understandings, whether written or oral, with respect to such subject matter. Any modifications of, or changes to,\nthis Agreement shall be in writing and signed by each of the Parties.\nThis Agreement shall terminate upon the termination of the General Consulting Agreement between the parties dated January 5, 2006, provided,\nhowever, that the secrecy and non-use obligations of Anson herein shall remain in effect for three (3) years from the date of termination.\nThe Anson Group, LLC\nTechniScan Medical Systems, Inc.\n(SIGNATURE)\nNON-DISCLOSURE AGREEMENT\nPAGE 2\nTechniScan Medical Systems, Inc.	EX-10.8 18 g20786exv10w8.htm EX-10.8\nExhibit 10.8\nl#(ANSON LOGO)\nClient Confidentiality & Non-Disclosure Agreement\nThis Agreement by and between TechniScan Medical Systems, Inc. (hereinafter referred to as “Client”) and The Anson Group, LLC (hereinafter\nreferred to as “Anson”), shall govern the conditions of disclosure of confidential information relating to Client’s business (“the Information”).\nThe Information includes all oral and written information, regardless of medium, disclosed to Anson by Client that is labeled or otherwise\nidentified as confidential.\nWith regard to the Information, Anson hereby agrees:\n1. Not to use the Information except for the sole purpose of providing consulting services requested by Client.\n2. To safeguard the Information against disclosure to others with the same degree of care as it exercises with its own information of a similar\nnature; and\n3. Not to disclose the Information to others (except to its employees, agents or consultants who are bound to Anson by a like obligation of\nconfidentiality) without the express written permission of Client, except that Anson shall not be prevented from using or disclosing any of\nthe Information:\na)  Which Anson can demonstrate by written records was previously known to it;\nb)  Which is now, or becomes in the future, public knowledge other than through acts or omissions of Anson;\nc)  Which is lawfully obtained by Anson from sources independent of Client; or\nd) Which Anson is required by law to disclose.\nAnson agrees to provide prompt written notice to Client of any legal requests or compulsion to disclose the Information, and to make only such\ndisclosures as are legally required.\nAnson agrees to return or destroy all documents or other materials provided by Client that constitute the Information, without retaining any\ncopies or extracts thereof, upon request by Client.\nNON-DISCLOSURE AGREEMENT PAGE 1\nTechniScan Medical Systems, Inc.\nAnson agrees that the furnishing of the Information to Anson shall not constitute a grant of license to Anson under any legal rights now or\nhereinafter held by Client.\nThis Agreement and all actions related hereto shall be governed by and construed in accordance with the laws (other than the conflict of laws\nrules) of the United States and the State of Indiana.\nThe rights and obligations herein shall bind the Parties and their respective legal representatives, successors, heirs and assigns.\nThis Agreement expresses the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes all prior\nagreements, commitments and understandings, whether written or oral, with respect to such subject matter. Any modifications of, or changes to,\nthis Agreement shall be in writing and signed by each of the Parties.\nThis Agreement shall terminate upon the termination of the General Consulting Agreement between the parties dated January 5, 2006, provided,\nhowever, that the secrecy and non-use obligations of Anson herein shall remain in effect for three (3) years from the date of termination.\nThe Anson Group, LLC TechniScan Medical Systems, Inc.\n|#(SIGNATURE)\nNON-DISCLOSURE AGREEMENT PAGE 2\nTechniScan Medical Systems, Inc.	EX-10.8 18 g20786exv10w8.htm EX-10.8\nExhibit 10.8\n(ANSON LOGO)\nClient Confidentiality & Non-Disclosure Agreement\nThis Agreement by and between TechniScan Medical Systems, Inc. (hereinafter referred to as "Client") and The Anson Group, LLC (hereinafter\nreferred to as "Anson"), shall govern the conditions of disclosure of confidential information relating to Client's business ("the Information").\nThe Information includes all oral and written information, regardless of medium, disclosed to Anson by Client that is labeled or otherwise\nidentified as confidential.\nWith regard to the Information, Anson hereby agrees:\n1.\nNot to use the Information except for the sole purpose of providing consulting services requested by Client.\n2.\nTo safeguard the Information against disclosure to others with the same degree of care as it exercises with its own information of a similar\nnature; and\n3.\nNot to disclose the Information to others (except to its employees, agents or consultants who are bound to Anson by a like obligation of\nconfidentiality) without the express written permission of Client, except that Anson shall not be prevented from using or disclosing any of\nthe Information:\na)\nWhich Anson can demonstrate by written records was previously known to it;\nb)\nWhich is now, or becomes in the future, public knowledge other than through acts or omissions of Anson;\nc) Which is lawfully obtained by Anson from sources independent of Client; or\nd)\nWhich Anson is required by law to disclose.\nAnson agrees to provide prompt written notice to Client of any legal requests or compulsion to disclose the Information, and to make only such\ndisclosures as are legally required.\nAnson agrees to return or destroy all documents or other materials provided by Client that constitute the Information, without retaining any\ncopies or extracts thereof, upon request by Client.\nNON-DISCLOSURE AGREEMENT\nPAGE 1\nTechniScan Medical Systems, Inc.\nAnson agrees that the furnishing of the Information to Anson shall not constitute a grant of license to Anson under any legal rights now or\nhereinafter held by Client.\nThis Agreement and all actions related hereto shall be governed by and construed in accordance with the laws (other than the conflict of laws\nrules) of the United States and the State of Indiana.\nThe rights and obligations herein shall bind the Parties and their respective legal representatives, successors, heirs and assigns.\nThis Agreement expresses the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes all prior\nagreements, commitments and understandings, whether written or oral, with respect to such subject matter. Any modifications of, or changes to,\nthis Agreement shall be in writing and signed by each of the Parties.\nThis Agreement shall terminate upon the termination of the General Consulting Agreement between the parties dated January 5, 2006, provided,\nhowever, that the secrecy and non-use obligations of Anson herein shall remain in effect for three (3) years from the date of termination.\nThe Anson Group, LLC\nTechniScan Medical Systems, Inc.\n(SIGNATURE)\nNON-DISCLOSURE AGREEMENT\nPAGE 2\nTechniScan Medical Systems, Inc.	EX-10.8 18 g20786exv10w8.htm EX-10.8\nExhibit 10.8\n(ANSON LOGO)\nClient Confidentiality & Non-Disclosure Agreement\nThis Agreement by and between TechniScan Medical Systems, Inc. (hereinafter referred to as “Client”) and The Anson Group, LLC (hereinafter\nreferred to as “Anson”), shall govern the conditions of disclosure of confidential information relating to Client’s business (“the Information”).\nThe Information includes all oral and written information, regardless of medium, disclosed to Anson by Client that is labeled or otherwise\nidentified as confidential.\nWith regard to the Information, Anson hereby agrees:\n1. Not to use the Information except for the sole purpose of providing consulting services requested by Client.\n2. To safeguard the Information against disclosure to others with the same degree of care as it exercises with its own information of a similar\nnature; and\n3. Not to disclose the Information to others (except to its employees, agents or consultants who are bound to Anson by a like obligation of\nconfidentiality) without the express written permission of Client, except that Anson shall not be prevented from using or disclosing any of\nthe Information:\na) Which Anson can demonstrate by written records was previously known to it;\nb) Which is now, or becomes in the future, public knowledge other than through acts or omissions of Anson;\nc) Which is lawfully obtained by Anson from sources independent of Client; or\nd) Which Anson is required by law to disclose.\nAnson agrees to provide prompt written notice to Client of any legal requests or compulsion to disclose the Information, and to make only such\ndisclosures as are legally required.\nAnson agrees to return or destroy all documents or other materials provided by Client that constitute the Information, without retaining any\ncopies or extracts thereof, upon request by Client.\nNON-DISCLOSURE AGREEMENT\nPAGE 1\nTechniScan Medical Systems, Inc.\nAnson agrees that the furnishing of the Information to Anson shall not constitute a grant of license to Anson under any legal rights now or\nhereinafter held by Client.\nThis Agreement and all actions related hereto shall be governed by and construed in accordance with the laws (other than the conflict of laws\nrules) of the United States and the State of Indiana.\nThe rights and obligations herein shall bind the Parties and their respective legal representatives, successors, heirs and assigns.\nThis Agreement expresses the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes all prior\nagreements, commitments and understandings, whether written or oral, with respect to such subject matter. Any modifications of, or changes to,\nthis Agreement shall be in writing and signed by each of the Parties.\nThis Agreement shall terminate upon the termination of the General Consulting Agreement between the parties dated January 5, 2006, provided,\nhowever, that the secrecy and non-use obligations of Anson herein shall remain in effect for three (3) years from the date of termination.\nThe Anson Group, LLC\nTechniScan Medical Systems, Inc.\n(SIGNATURE)\nNON-DISCLOSURE AGREEMENT\nPAGE 2\nTechniScan Medical Systems, Inc.
+3525bcfe006326a6b43dc0974d5185df.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 12 d454990dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nDecember 7, 2012\nJAB Beech Inc.\n2200 Pennsylvania Avenue, NW\nWashington, DC 20052\nNon-Disclosure Agreement\nLadies and Gentlemen:\nIn connection with a possible negotiated transaction (the “Possible Transaction”) with Caribou Coffee Company, Inc., a Minnesota corporation\n(the “Seller”), the Seller expects to make available to JAB Beech Inc. (“you” or, together with Seller, the “parties”) certain information concerning\nitself and its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to you, the\nstockholders of your ultimate parent, and your direct and indirect affiliates, directors, officers, employees, agents, advisors (including, without\nlimitation, attorneys, accountants, consultants, bankers and financial advisors), BDT Capital Partners LLC and any other specific financing source\nthat the Seller approves to be included as a Representative, such approval of the Seller not to be unreasonably withheld, conditioned or delayed\n(collectively, “Representatives”), you agree to treat any information concerning the Seller (whether prepared by the Seller, its Representatives or\notherwise and irrespective of the form of communication) that is furnished hereunder to you or your Representatives now or in the future by or on\nbehalf of the Seller (herein collectively referred to as the “Evaluation Material”) in accordance with, and subject to, the provisions of this letter\nagreement (this “Agreement”), and to take or abstain from taking certain other actions hereinafter set forth.\n1. Evaluation Material. The term “Evaluation Material” shall include information (including historical financial information that has not been\npublicly disclosed) concerning Seller pertaining to legal and regulatory matters, customers, depositors, vendors, projections, forecasts or\ninvestments, and all records, notes, computer data, analyses, compilations, studies, reports, interpretations or other documents to the extent\ncontaining, in whole or in part, the information furnished to you or your Representatives by or on behalf of the Seller, provided, that the term\n“Evaluation Material” does not include information which (1) is or becomes generally available to the public other than as result of a breach of\nthis Agreement by you or your Representatives, (ii) was within your possession prior to it being furnished to you by or on behalf of the Seller,\nprovided that the source of such information was not known after reasonable due inquiry by you to be bound by a confidentiality agreement\nwith (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the Seller or any other party with respect to such\ninformation, or (iii) is independently developed by you or by others on your behalf without violating any of your obligations under this\nAgreement, or (iv) becomes available to you on a non-confidential basis from a source other than the Seller or its advisors, provided that such\nsource is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller or another party.\n2. Use of Evaluation Material. You agree that you and your Representatives will use the Evaluation Material solely for the purpose of proposing,\nevaluating, negotiating and consummating a Possible Transaction in accordance with the terms of this Agreement (the “Evaluation”) and that\nany other use of the Evaluation Material will constitute a breach of this Agreement. You agree to keep the Evaluation Material strictly\nconfidential and not to use or disclose the Evaluation Material without the prior written consent of the Seller, except that, subject to the\nprovisions hereof, you may disclose Evaluation Material to your Representatives to the extent that they need to know such Evaluation Material\nfor purposes of the Evaluation, provided such Representatives are informed of the confidential nature of the Evaluation Material and the\nmaterial terms of this Agreement and agree to be bound by the confidentiality provisions hereof (it being understood that, except in the case of\nfinancing sources, the foregoing shall not require any agreement in writing), and provided further that you shall be responsible for any\nunauthorized use or disclosure of Evaluation Material by your Representatives. You shall not make more copies of the Evaluation Material\nthan are reasonably necessary to perform the Evaluation.\n3. Non-Disclosure of Possible Transaction. Except as set forth elsewhere in this Agreement, each of the parties hereby acknowledges and agrees\nthat, without the other party’s prior written consent, it will not disclose to any third party the existence of this Agreement, the fact that any\nEvaluation Material has been made available hereunder, or that discussions are taking place concerning the Possible Transaction or any of the\nterms, conditions or other facts with respect thereto.\n4. Required Disclosure of Evaluation Material. In the event that (i) you or any of your Representatives are requested or required by oral\nquestions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar\nprocess or any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which your\nsecurities are listed or quoted, to disclose any of the Evaluation Material or (ii) either party or any of its Representatives are requested or\nrequired by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or\nother similar process or any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on\nwhich its securities are listed or quoted, to disclose that discussions are taking place concerning the Possible Transaction, such party shall\nprovide the other party with prompt notice of any such request or requirement so that such other party may seek a protective order or other\nappropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or\nthe receipt of a waiver, such first party or any of its Representatives are nonetheless legally compelled by any requirement described in the first\nsentence of this Section 4 to disclose the Evaluation Material to such third party, such party or its Representative may, without liability\nhereunder, disclose to such third party only that portion of the Evaluation Material, or of the facts relating to the discussions taking place,\nwhich its counsel advises in writing is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the\nconfidentiality of the Evaluation Material and the discussions taking place, including, without limitation, by cooperating with the other party to\nobtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded thereto by any third party to\nwhich disclosure is made.\n5. Privileged Information. To the extent that any Evaluation Material may include material or information that is subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental\ninvestigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual\ndesire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. Any Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under such privileges, under this Agreement and under the joint defense doctrine. Nothing in\nthis Agreement obligates any party to reveal material or information subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege.\n6. Compliance with Securities Laws. You hereby acknowledge that you are aware of the restrictions imposed by the United States securities laws\non the purchase or sale of securities by any person who has received material, nonpublic information from the issuer of the securities or any\naffiliate thereof and on the communication of such information to any other person when it is reasonably foreseeable that such other person is\nlikely to purchase or sell such securities in reliance on such information for so long as the information remains material and non-public and\nagree to comply with such securities laws.\n7. Standstill. You hereby agree that, from and after the date of this Agreement and until the earliest of (i) two years after the date on which\ndiscussions concerning the possibility of the Possible Transaction have terminated, (ii) the date on which the Seller or any of its subsidiaries\napproves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar\nbusiness combination, (each, a “Merger”), unless it can be determined based on publicly available information at the time of announcement of\nsuch agreement that such Merger would result in the Seller’s stockholders immediately prior to the Merger holding, immediately following\nsuch Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable,\nthe ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity\nsurviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that\ncontemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities\nby Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a “Change of Control Event”), (iv) the\ndate on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which\nthe parties enter into any definitive agreement contemplating a Change of Control Event, neither you nor any of your Representatives will in\nany manner, directly or indirectly, (a) effect, seek, offer or propose (whether publicly or otherwise), or cause or participate in or in any way\nassist any other person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of\nbeneficial ownership of any securities or assets of the Seller (other than with respect to any acquisitions in the ordinary course for passive\ninvestment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller); (2) any tender or\nexchange offer, merger or other business combination involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or\nother extraordinary transaction with respect to the Seller; or (4) any\n2\n-\nsolicitation of “proxies (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting\nsecurities of the Seller; (b) form, join or in any way participate in a “group (as defined under the Exchange Act) with respect to any securities\nof the Seller or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of\nthe Seller; (c) take any action which would reasonably be expected to require the Seller to make a public announcement regarding any of the\ntypes of matters set forth in (a) or (b) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the\nforegoing. Notwithstanding anything to the contrary in this Agreement, following the period described in the foregoing sentence, nothing in\nthis Agreement (including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) shall, directly or indirectly, prevent or\notherwise limit you or your Representatives from taking any actions referred to in clauses (a)-(d) of this section 7 or related thereto, and in\neach case without notice to or consultation with the Seller. The Seller also agrees during such period not to publicly request you (or your\nRepresentatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and\nwarrants that, as of the date of this Agreement, neither you nor any of your affiliates owns, of record or beneficially, any voting securities of\nthe Seller, or any securities convertible into or exercisable for any voting securities of the Seller (other than such ownership by your affiliates\nof up to an aggregate of 1% of such securities).\n8. Termination of Discussions. You understand and agree that (a) the Seller (i) may terminate your access to Evaluation Material at any time,\n(ii) shall be free to conduct any process for a Possible Transaction as it in its sole discretion shall determine and (iii) shall be free at its sole\ndiscretion at any time to accept or reject any proposal relating to a Possible Transaction for any reason without notice to you or any third party,\nand (b) you shall have no claim against the Seller or its Representatives in connection with any of the foregoing. If you decide that you do not\nwish to proceed with the Possible Transaction, you will promptly inform the Seller in writing. In that case, or at any time upon the request of\nthe Seller for any reason, you will as promptly as practicable deliver to the Seller or destroy any and all Evaluation Material furnished to you\nor your Representatives and no copy thereof shall be retained, and you shall provide written confirmation of such destruction, provided, that\n(i) you or your Representatives may, subject to the terms of this Agreement, retain any electronic records or files containing Evaluation\nMaterial which have been created pursuant to automatic archiving and back-up procedures which cannot reasonably be deleted; provided that\nneither you nor your Representatives access such archives or back-up tapes for purposes of retrieving Evaluation Material, (ii) your outside\nlegal counsel may, subject to the terms of this Agreement, retain in its files a copy of any Evaluation Material solely for use in connection with\nany disputes between the parties relating to the Evaluation Material or a possible negotiated transaction involving the parties and (iii) your\nRepresentatives that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies\nof the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law,\nregulation or professional standards (provided that such Representatives do not provide you access to any such retained Evaluation Material).\nNotwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your\nobligations of confidentiality and nonuse and other obligations hereunder for a period of two years from the date first set forth above.\n9. Non-Solicitation. In consideration of the Evaluation Material being furnished to you, you agree that for a period of two years from the date\nhereof, you will not, directly or indirectly, solicit for employment or employ any of the employees of the Seller while such employees remain\nemployed by the Seller or its affiliates, provided, that this Agreement shall not prohibit (i) any general advertisement or general solicitation\nthat is not specifically targeted at such persons; or (ii) the hiring of any such persons who initiate discussions with you regarding such\nemployment without any direct or indirect solicitation by you.\n10. No Representation of Accuracy. You understand and acknowledge that the Seller and its Representatives: (i) make no representation or\nwarranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and (ii) shall have no liability to you or your\nRepresentatives relating to or resulting from the use of or reliance upon the Evaluation Material or any errors therein or omissions therefrom.\nOnly those representations or warranties which are made in a definitive agreement regarding the Possible Transaction, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n11. Waiver. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate\nas a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other\nright, power or privilege hereunder.\n12. Contacts. You agree that none of you or your Representatives who are aware of the Evaluation Material and/or a Possible Transaction will\ninitiate or cause to be initiated any communication with any director, officer or employee of the Seller\n3\n-\n-\n-\nconcerning the Evaluation Material or a Possible Transaction, provided that the foregoing shall not prohibit any communication with the\nChairman of the Board of Directors of the Seller or any person identified by the Seller or its Representatives to you or your Representatives as\nhaving knowledge of a Possible Transaction.\n13. Remedies. You hereby agree that your failure to perform any obligation or duty under this Agreement will cause irreparable harm to the Seller,\nwhich harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance or for\ninjunctive relief against you in the event of a breach or default under the terms of this Agreement would be equitable and would not work a\nhardship on you. Accordingly, in the event of a breach or default by you hereunder, the Seller, without any bond or other security being\nrequired and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific\nperformance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof. You agree to\nreimburse the Seller for all costs and expenses (including, without limitation, attorney’s fees and expenses) of enforcing the Seller’s rights\nunder this Agreement. This Section shall not operate to limit any other rights or remedies of the Seller.\n14. Severability. In case any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of\nthe remaining provisions of the Agreement shall not in any way be affected or impaired thereby and such provision will be deemed to be\nrestated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.\n15. No Definitive Agreement. You hereby agree that unless and until a definitive agreement regarding the Possible Transaction is executed, neither\nthe Seller nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement,\nexcept for matters specifically agreed to herein.\n16. Assignment. The Seller reserves the right to assign all of its rights, powers and privileges under this Agreement, including without limitation\nthe right to enforce all of the terms of this Agreement, to successors or affiliates of the Seller or any person who acquires a majority of the\noutstanding stock or all or substantially all of the assets of the Seller. Except as expressly permitted above, the Seller shall not have the right to\nassign this Agreement or its rights or obligations under this Agreement without your prior written consent. You acknowledge and agree that\nyou may not assign or otherwise delegate your obligations or duties under this Agreement to any other person. Any assignment in violation of\nthis Agreement shall be null and void ab initio.\n17. Governing Law: Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without\ngiving effect to the principles of conflicts of laws thereof that would compel the application of the substantive laws of another jurisdiction. In\nany dispute between the parties arising out of or relating to this Agreement, each party irrevocably and unconditionally (i) consents and\nsubmits to the jurisdiction and venue of the state or federal courts located in Hennepin County, Minnesota; (ii) consents to service of process\nby first class certified mail, return receipt requested, postage prepaid.\n18. Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES, TO THE\nFULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING\nOUT OF OR RELATED TO THIS AGREEMENT.\n19. Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning subject matter hereof, and no\nmodification of this Agreement or waiver of the terms and conditions hereof shall he binding upon either party hereto, unless approved in\nwriting by each such party.\n20. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same instrument. Signatures of the parties transmitted by facsimile or other electronic transmission shall\nbe deemed to be their original signatures for purpose of this Agreement.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this\nAgreement shall become a binding agreement between you and the Seller.\n4\nVery truly yours,\nCaribou Coffee Company, Inc.\nBy: /s/ Dan E. Lee\nName: Dan E. Lee\nIts: S.V.P, General Counsel & Secretary\nAccepted and agreed to as of\nthe date first written above:\nJAB Beech Inc.\nBy: /s/ Joachim Creus\nName: Joachim Creus\nIts: President\n5	EX-99.(D)(2) 12 d454990dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nDecember 7, 2012\nJAB Beech Inc.\n2200 Pennsylvania Avenue, NW\nWashington, DC 20052\nNon-Disclosure Agreement\nLadies and Gentlemen:\nIn connection with a possible negotiated transaction (the “Possible Transaction”) with Caribou Coffee Company, Inc., a Minnesota corporation\n(the “Seller”), the Seller expects to make available to JAB Beech Inc. (“you” or, together with Seller, the “parties”) certain information concerning\nitself and its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to you, the\nstockholders of your ultimate parent, and your direct and indirect affiliates, directors, officers, employees, agents, advisors (including, without\nlimitation, attorneys, accountants, consultants, bankers and financial advisors), BDT Capital Partners LLC and any other specific financing source\nthat the Seller approves to be included as a Representative, such approval of the Seller not to be unreasonably withheld, conditioned or delayed\n(collectively, “Representatives™), you agree to treat any information concerning the Seller (whether prepared by the Seller, its Representatives or\notherwise and irrespective of the form of communication) that is furnished hereunder to you or your Representatives now or in the future by or on\nbehalf of the Seller (herein collectively referred to as the “Evaluation Material”) in accordance with, and subject to, the provisions of this letter\nagreement (this “Agreement”), and to take or abstain from taking certain other actions hereinafter set forth.\n1. Evaluation Material. The term “Evaluation Material” shall include information (including historical financial information that has not been\npublicly disclosed) concerning Seller pertaining to legal and regulatory matters, customers, depositors, vendors, projections, forecasts or\ninvestments, and all records, notes, computer data, analyses, compilations, studies, reports, interpretations or other documents to the extent\ncontaining, in whole or in part, the information furnished to you or your Representatives by or on behalf of the Seller, provided, that the term\n“Evaluation Material” does not include information which (1) is or becomes generally available to the public other than as result of a breach of\nthis Agreement by you or your Representatives, (ii) was within your possession prior to it being furnished to you by or on behalf of the Seller,\nprovided that the source of such information was not known after reasonable due inquiry by you to be bound by a confidentiality agreement\nwith (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the Seller or any other party with respect to such\ninformation, or (iii) is independently developed by you or by others on your behalf without violating any of your obligations under this\nAgreement, or (iv) becomes available to you on a non-confidential basis from a source other than the Seller or its advisors, provided that such\nsource is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller or another party.\n2. Use of Evaluation Material. You agree that you and your Representatives will use the Evaluation Material solely for the purpose of proposing,\nevaluating, negotiating and consummating a Possible Transaction in accordance with the terms of this Agreement (the “Evaluation”) and that\nany other use of the Evaluation Material will constitute a breach of this Agreement. You agree to keep the Evaluation Material strictly\nconfidential and not to use or disclose the Evaluation Material without the prior written consent of the Seller, except that, subject to the\nprovisions hereof, you may disclose Evaluation Material to your Representatives to the extent that they need to know such Evaluation Material\nfor purposes of the Evaluation, provided such Representatives are informed of the confidential nature of the Evaluation Material and the\nmaterial terms of this Agreement and agree to be bound by the confidentiality provisions hereof (it being understood that, except in the case of\nfinancing sources, the foregoing shall not require any agreement in writing), and provided further that you shall be responsible for any\nunauthorized use or disclosure of Evaluation Material by your Representatives. You shall not make more copies of the Evaluation Material\nthan are reasonably necessary to perform the Evaluation.\n3. Non-Disclosure of Possible Transaction. Except as set forth elsewhere in this Agreement, each of the parties hereby acknowledges and agrees\nthat, without the other party’s prior written consent, it will not disclose to any third party the existence of this Agreement, the fact that any\nEvaluation Material has been made available hereunder, or that discussions are taking place concerning the Possible Transaction or any of the\nterms, conditions or other facts with respect thereto.\nRequired Disclosure of Evaluation Material. In the event that (i) you or any of your Representatives are requested or required by oral\nquestions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar\nprocess or any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which your\nsecurities are listed or quoted, to disclose any of the Evaluation Material or (ii) either party or any of its Representatives are requested or\nrequired by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or\nother similar process or any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on\nwhich its securities are listed or quoted, to disclose that discussions are taking place concerning the Possible Transaction, such party shall\nprovide the other party with prompt notice of any such request or requirement so that such other party may seek a protective order or other\nappropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or\nthe receipt of a waiver, such first party or any of its Representatives are nonetheless legally compelled by any requirement described in the first\nsentence of this Section 4 to disclose the Evaluation Material to such third party, such party or its Representative may, without liability\nhereunder, disclose to such third party only that portion of the Evaluation Material, or of the facts relating to the discussions taking place,\nwhich its counsel advises in writing is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the\nconfidentiality of the Evaluation Material and the discussions taking place, including, without limitation, by cooperating with the other party to\nobtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded thereto by any third party to\nwhich disclosure is made.\nPrivileged Information. To the extent that any Evaluation Material may include material or information that is subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental\ninvestigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual\ndesire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. Any Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under such privileges, under this Agreement and under the joint defense doctrine. Nothing in\nthis Agreement obligates any party to reveal material or information subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege.\nCompliance with Securities Laws. You hereby acknowledge that you are aware of the restrictions imposed by the United States securities laws\non the purchase or sale of securities by any person who has received material, nonpublic information from the issuer of the securities or any\naffiliate thereof and on the communication of such information to any other person when it is reasonably foreseeable that such other person is\nlikely to purchase or sell such securities in reliance on such information for so long as the information remains material and non-public and\nagree to comply with such securities laws.\nStandstill. You hereby agree that, from and after the date of this Agreement and until the earliest of (i) two years after the date on which\ndiscussions concerning the possibility of the Possible Transaction have terminated, (ii) the date on which the Seller or any of its subsidiaries\napproves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar\nbusiness combination, (each, a “Merger”), unless it can be determined based on publicly available information at the time of announcement of\nsuch agreement that such Merger would result in the Seller’s stockholders immediately prior to the Merger holding, immediately following\nsuch Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable,\nthe ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity\nsurviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that\ncontemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities\nby Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a “Change of Control Event”), (iv) the\ndate on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which\nthe parties enter into any definitive agreement contemplating a Change of Control Event, neither you nor any of your Representatives will in\nany manner, directly or indirectly, (a) effect, seek, offer or propose (whether publicly or otherwise), or cause or participate in or in any way\nassist any other person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of\nbeneficial ownership of any securities or assets of the Seller (other than with respect to any acquisitions in the ordinary course for passive\ninvestment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller); (2) any tender or\nexchange offer, merger or other business combination involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or\nother extraordinary transaction with respect to the Seller; or (4) any -\n2\n10. 11. 12. solicitation- of “proxies- (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting\nsecurities of the Seller; (b) form, join or in any way participate in a “group- (as defined under the Exchange Act) with respect to any securities\nof the Seller or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of\nthe Seller; (c) take any action which would reasonably be expected to require the Seller to make a public announcement regarding any of the\ntypes of matters set forth in (a) or (b) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the\nforegoing. Notwithstanding anything to the contrary in this Agreement, following the period described in the foregoing sentence, nothing in\nthis Agreement (including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) shall, directly or indirectly, prevent or\notherwise limit you or your Representatives from taking any actions referred to in clauses (a)-(d) of this section 7 or related thereto, and in\neach case without notice to or consultation with the Seller. The Seller also agrees during such period not to publicly request you (or your\nRepresentatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and\nwarrants that, as of the date of this Agreement, neither you nor any of your affiliates owns, of record or beneficially, any voting securities of\nthe Seller, or any securities convertible into or exercisable for any voting securities of the Seller (other than such ownership by your affiliates\nof up to an aggregate of 1% of such securities).\nTermination of Discussions. You understand and agree that (a) the Seller (i) may terminate your access to Evaluation Material at any time,\n(ii) shall be free to conduct any process for a Possible Transaction as it in its sole discretion shall determine and (iii) shall be free at its sole\ndiscretion at any time to accept or reject any proposal relating to a Possible Transaction for any reason without notice to you or any third party,\nand (b) you shall have no claim against the Seller or its Representatives in connection with any of the foregoing. If you decide that you do not\nwish to proceed with the Possible Transaction, you will promptly inform the Seller in writing. In that case, or at any time upon the request of\nthe Seller for any reason, you will as promptly as practicable deliver to the Seller or destroy any and all Evaluation Material furnished to you\nor your Representatives and no copy thereof shall be retained, and you shall provide written confirmation of such destruction, provided, that\n(i) you or your Representatives may, subject to the terms of this Agreement, retain any electronic records or files containing Evaluation\nMaterial which have been created pursuant to automatic archiving and back-up procedures which cannot reasonably be deleted; provided that\nneither you nor your Representatives access such archives or back-up tapes for purposes of retrieving Evaluation Material, (ii) your outside\nlegal counsel may, subject to the terms of this Agreement, retain in its files a copy of any Evaluation Material solely for use in connection with\nany disputes between the parties relating to the Evaluation Material or a possible negotiated transaction involving the parties and (iii) your\nRepresentatives that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies\nof the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law,\nregulation or professional standards (provided that such Representatives do not provide you access to any such retained Evaluation Material).\nNotwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your\nobligations of confidentiality and nonuse and other obligations hereunder for a period of two years from the date first set forth above.\nNon-Solicitation. In consideration of the Evaluation Material being furnished to you, you agree that for a period of two years from the date\nhereof, you will not, directly or indirectly, solicit for employment or employ any of the employees of the Seller while such employees remain\nemployed by the Seller or its affiliates, provided, that this Agreement shall not prohibit (i) any general advertisement or general solicitation\nthat is not specifically targeted at such persons; or (ii) the hiring of any such persons who initiate discussions with you regarding such\nemployment without any direct or indirect solicitation by you.\nNo Representation of Accuracy. You understand and acknowledge that the Seller and its Representatives: (i) make no representation or\nwarranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and (ii) shall have no liability to you or your\nRepresentatives relating to or resulting from the use of or reliance upon the Evaluation Material or any errors therein or omissions therefrom.\nOnly those representations or warranties which are made in a definitive agreement regarding the Possible Transaction, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nWaiver. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate\nas a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other\nright, power or privilege hereunder.\nContacts. You agree that none of you or your Representatives who are aware of the Evaluation Material and/or a Possible Transaction will\ninitiate or cause to be initiated any communication with any director, officer or employee of the Seller\n3\n13. 14. 15. 16. 17. 18. 19. 20. concerning the Evaluation Material or a Possible Transaction, provided that the foregoing shall not prohibit any communication with the\nChairman of the Board of Directors of the Seller or any person identified by the Seller or its Representatives to you or your Representatives as\nhaving knowledge of a Possible Transaction.\nRemedies. You hereby agree that your failure to perform any obligation or duty under this Agreement will cause irreparable harm to the Seller,\nwhich harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance or for\ninjunctive relief against you in the event of a breach or default under the terms of this Agreement would be equitable and would not work a\nhardship on you. Accordingly, in the event of a breach or default by you hereunder, the Seller, without any bond or other security being\nrequired and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific\nperformance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof. You agree to\nreimburse the Seller for all costs and expenses (including, without limitation, attorney’s fees and expenses) of enforcing the Seller’s rights\nunder this Agreement. This Section shall not operate to limit any other rights or remedies of the Seller.\nSeverability. In case any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of\nthe remaining provisions of the Agreement shall not in any way be affected or impaired thereby and such provision will be deemed to be\nrestated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.\nNo Definitive Agreement. You hereby agree that unless and until a definitive agreement regarding the Possible Transaction is executed, neither\nthe Seller nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement,\nexcept for matters specifically agreed to herein.\n \nAssignment. The Seller reserves the right to assign all of its rights, powers and privileges under this Agreement, including without limitation\nthe right to enforce all of the terms of this Agreement, to successors or affiliates of the Seller or any person who acquires a majority of the\noutstanding stock or all or substantially all of the assets of the Seller. Except as expressly permitted above, the Seller shall not have the right to\nassign this Agreement or its rights or obligations under this Agreement without your prior written consent. You acknowledge and agree that\nyou may not assign or otherwise delegate your obligations or duties under this Agreement to any other person. Any assignment in violation of\nthis Agreement shall be null and void ab initio.\nGoverning Law: Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without\ngiving effect to the principles of conflicts of laws thereof that would compel the application of the substantive laws of another jurisdiction. In\nany dispute between the parties arising out of or relating to this Agreement, each party irrevocably and unconditionally (i) consents and\nsubmits to the jurisdiction and venue of the state or federal courts located in Hennepin County, Minnesota; (ii) consents to service of process\nby first class certified mail, return receipt requested, postage prepaid.\nWaiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES, TO THE\nFULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING\nOUT OF OR RELATED TO THIS AGREEMENT.\nEntire Agreement. This Agreement contains the entire agreement between the parties hereto concerning subject matter hereof, and no\nmodification of this Agreement or waiver of the terms and conditions hereof shall he binding upon either party hereto, unless approved in\nwriting by each such party.\nCounterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same instrument. Signatures of the parties transmitted by facsimile or other electronic transmission shall\nbe deemed to be their original signatures for purpose of this Agreement.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this\nAgreement shall become a binding agreement between you and the Seller.\n4\nAccepted and agreed to as of\nthe date first written above:\nJAB Beech Inc.\nBy: /s/ Joachim Creus\nName: Joachim Creus\nIts: President\nVery truly yours,\nCaribou Coffee Company, Inc.\nBy: /s/ DanE. Lee\nName: Dan E. Lee\nIts: S.V.P, General Counsel & Secretary	EX-99.(D)(2) 12 d454990dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nDecember 7, 2012\nJAB Beech Inc.\n2200 Pennsylvania Avenue, NW\nWashington, DC 20052\nNon-Disclosure Agreement\nLadies and Gentlemen:\nIn connection with a possible negotiated transaction (the "Possible Transaction") with Caribou Coffee Company, Inc., a Minnesota corporation\n(the "Seller"), the Seller expects to make available to JAB Beech Inc. ("you" or, together with Seller, the "parties") certain information concerning\nitself and its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to you, the\nstockholders of your ultimate parent, and your direct and indirect affiliates, directors, officers, employees, agents, advisors (including, without\nlimitation, attorneys, accountants, consultants, bankers and financial advisors), BDT Capital Partners LLC and any other specific financing source\nthat\nthe\nSeller\napproves\nto\nbe\nincluded\nas\na\nRepresentative,\nsuch\napproval\nof\nthe\nSeller\nnot\nto\nbe\nunreasonably\nwithheld,\nconditioned\nor\ndelayed\n(collectively, "Representatives"), you agree to treat any information concerning the Seller (whether prepared by the Seller, its Representatives or\notherwise and irrespective of the form of communication) that is furnished hereunder to you or your Representatives now or in the future by or on\nbehalf of the Seller (herein collectively referred to as the "Evaluation Material") in accordance with, and subject to, the provisions of this letter\nagreement (this "Agreement"), and to take or abstain from taking certain other actions hereinafter set forth.\n1.\nEvaluation Material. The term "Evaluation Material" shall include information (including historical financial information that has not been\npublicly disclosed) concerning Seller pertaining to legal and regulatory matters, customers, depositors, vendors, projections, forecasts or\ninvestments, and all records, notes, computer data, analyses, compilations, studies, reports, interpretations or other documents to the extent\ncontaining,\nin\nwhole\nor\nin\npart,\nthe\ninformation\nfurnished\nto\nyou\nor\nyour\nRepresentatives\nby\nor\non\nbehalf\nof\nthe\nSeller,\nprovided,\nthat\nthe\nterm\n"Evaluation Material" does not include information which (1) is or becomes generally available to the public other than as result of a breach of\nthis Agreement by you or your Representatives, (ii) was within your possession prior to it being furnished to you by or on behalf of the Seller,\nprovided that the source of such information was not known after reasonable due inquiry by you to be bound by a confidentiality agreement\nwith (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the Seller or any other party with respect to such\ninformation, or (iii) is independently developed by you or by others on your behalf without violating any of your obligations under this\nAgreement, or (iv) becomes available to you on a non-confidential basis from a source other than the Seller or its advisors, provided that such\nsource is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller or another party.\n2.\nUse of Evaluation Material. You agree that you and your Representatives will use the Evaluation Material solely for the purpose of proposing,\nevaluating, negotiating and consummating a Possible Transaction in accordance with the terms of this Agreement (the "Evaluation") and that\nany other use of the Evaluation Material will constitute a breach of this Agreement. You agree to keep the Evaluation Material strictly\nconfidential and not to use or disclose the Evaluation Material without the prior written consent of the Seller, except that, subject to the\nprovisions hereof, you may disclose Evaluation Material to your Representatives to the extent that they need to know such Evaluation Material\nfor purposes of the Evaluation, provided such Representatives are informed of the confidential nature of the Evaluation Material and the\nmaterial terms of this Agreement and agree to be bound by the confidentiality provisions hereof (it being understood that, except in the case of\nfinancing sources, the foregoing shall not require any agreement in writing), and provided further that you shall be responsible for any\nunauthorized use or disclosure of Evaluation Material by your Representatives. You shall not make more copies of the Evaluation Material\nthan are reasonably necessary to perform the Evaluation.\n3.\nNon-Disclosure of Possible Transaction. Except as set forth elsewhere in this Agreement, each of the parties hereby acknowledges and agrees\nthat, without the other party's prior written consent, it will not disclose to any third party the existence of this Agreement, the fact that any\nEvaluation Material has been made available hereunder, or that discussions are taking place concerning the Possible Transaction or any of the\nterms, conditions or other facts with respect thereto.\n4.\nRequired Disclosure of Evaluation Material. In the event that (i) you or any of your Representatives are requested or required by oral\nquestions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar\nprocess or any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which your\nsecurities are listed or quoted, to disclose any of the Evaluation Material or (ii) either party or any of its Representatives are requested or\nrequired by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or\nother similar process or any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on\nwhich its securities are listed or quoted, to disclose that discussions are taking place concerning the Possible Transaction, such party shall\nprovide the other party with prompt notice of any such request or requirement so that such other party may seek a protective order or other\nappropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or\nthe receipt of a waiver, such first party or any of its Representatives are nonetheless legally compelled by any requirement described in the first\nsentence of this Section 4 to disclose the Evaluation Material to such third party, such party or its Representative may, without liability\nhereunder, disclose to such third party only that portion of the Evaluation Material, or of the facts relating to the discussions taking place,\nwhich its counsel advises in writing is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the\nconfidentiality of the Evaluation Material and the discussions taking place, including, without limitation, by cooperating with the other party to\nobtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded thereto by any third party to\nwhich disclosure is made.\n5.\nPrivileged\nInformation.\nTo\nthe\nextent\nthat\nany\nEvaluation\nMaterial\nmay\ninclude\nmaterial\nor\ninformation\nthat\nis\nsubject\nto\nthe\nattorney-client\nprivilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental\ninvestigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual\ndesire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. Any Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under such privileges, under this Agreement and under the joint defense doctrine. Nothing in\nthis Agreement obligates any party to reveal material or information subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege.\n6.\nCompliance with Securities Laws. You hereby acknowledge that you are aware of the restrictions imposed by the United States securities laws\non the purchase or sale of securities by any person who has received material, nonpublic information from the issuer of the securities or any\naffiliate thereof and on the communication of such information to any other person when it is reasonably foreseeable that such other person\nis\nlikely to purchase or sell such securities in reliance on such information for so long as the information remains material and non-public and\nagree to comply with such securities laws.\n7.\nStandstill. You hereby agree that, from and after the date of this Agreement and until the earliest of (i) two years after the date on which\ndiscussions concerning the possibility of the Possible Transaction have terminated, (ii) the date on which the Seller or any of its subsidiaries\napproves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar\nbusiness combination, (each, a "Merger"), unless it can be determined based on publicly available information at the time of announcement of\nsuch agreement that such Merger would result in the Seller's stockholders immediately prior to the Merger holding, immediately following\nsuch Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable,\nthe ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity\nsurviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that\ncontemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities\nby Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a "Change of Control Event"), (iv) the\ndate on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which\nthe parties enter into any definitive agreement contemplating a Change of Control Event, neither you nor any of your Representatives will in\nany manner, directly or indirectly, (a) effect, seek, offer or propose (whether publicly or otherwise), or cause or participate in or in any way\nassist any other person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of\nbeneficial ownership of any securities or assets of the Seller (other than with respect to any acquisitions in the ordinary course for passive\ninvestment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller); (2) any tender or\nexchange offer, merger or other business combination involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or\nother extraordinary transaction with respect to the Seller; or (4) any\n2\nsolicitation- of "proxies (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting\nsecurities of the Seller; (b) form, join or in any way participate in a "group (as defined under the Exchange Act) with respect to any securities\nof the Seller or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of\nthe Seller; (c) take any action which would reasonably be expected to require the Seller to make a public announcement regarding any of the\ntypes of matters set forth in (a) or (b) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the\nforegoing. Notwithstanding anything to the contrary in this Agreement, following the period described in the foregoing sentence, nothing in\nthis Agreement (including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) shall, directly or indirectly, prevent or\notherwise limit you or your Representatives from taking any actions referred to in clauses (a)-(d) of this section 7 or related thereto, and in\neach case without notice to or consultation with the Seller. The Seller also agrees during such period not to publicly request you (or your\nRepresentatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and\nwarrants that, as of the date of this Agreement, neither you nor any of your affiliates owns, of record or beneficially, any voting securities of\nthe Seller, or any securities convertible into or exercisable for any voting securities of the Seller (other than such ownership by your affiliates\nof up to an aggregate of 1% of such securities).\n8.\nTermination of Discussions. You understand and agree that (a) the Seller (i) may terminate your access to Evaluation Material at any time,\n(ii) shall be free to conduct any process for a Possible Transaction as it in its sole discretion shall determine and (iii) shall be free at its sole\ndiscretion at any time to accept or reject any proposal relating to a Possible Transaction for any reason without notice to you or any third party,\nand\n(b)\nyou\nshall\nhave\nno\nclaim\nagainst\nthe\nSeller\nor\nits\nRepresentatives\nin\nconnection\nwith\nany\nof\nthe\nforegoing.\nIf\nyou\ndecide\nthat\nyou\ndo\nnot\nwish to proceed with the Possible Transaction, you will promptly inform the Seller in writing. In that case, or at any time upon the request of\nthe Seller for any reason, you will as promptly as practicable deliver to the Seller or destroy any and all Evaluation Material furnished to you\nor your Representatives and no copy thereof shall be retained, and you shall provide written confirmation of such destruction, provided, that\n(i) you or your Representatives may, subject to the terms of this Agreement, retain any electronic records or files containing Evaluation\nMaterial which have been created pursuant to automatic archiving and back-up procedures which cannot reasonably be deleted; provided that\nneither you nor your Representatives access such archives or back-up tapes for purposes of retrieving Evaluation Material, (ii) your outside\nlegal counsel may, subject to the terms of this Agreement, retain in its files a copy of any Evaluation Material solely for use in connection with\nany disputes between the parties relating to the Evaluation Material or a possible negotiated transaction involving the parties and (iii) your\nRepresentatives that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies\nof the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law,\nregulation or professional standards (provided that such Representatives do not provide you access to any such retained Evaluation Material).\nNotwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your\nobligations of confidentiality and nonuse and other obligations hereunder for a period of two years from the date first set forth above.\n9.\nNon-Solicitation.\nIn\nconsideration\nof\nthe\nEvaluation\nMaterial\nbeing\nfurnished\nto\nyou,\nyou\nagree\nthat\nfor\na\nperiod\nof\ntwo\nyears\nfrom\nthe\ndate\nhereof, you will not, directly or indirectly, solicit for employment or employ any of the employees of the Seller while such employees remain\nemployed by the Seller or its affiliates, provided, that this Agreement shall not prohibit (i) any general advertisement or general solicitation\nthat is not specifically targeted at such persons; or (ii) the hiring of any such persons who initiate discussions with you regarding such\nemployment without any direct or indirect solicitation by you.\n10. No Representation of Accuracy.. You understand and acknowledge that the Seller and its Representatives: (i) make no representation or\nwarranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and (ii) shall have no liability to you or your\nRepresentatives relating to or resulting from the use of or reliance upon the Evaluation Material or any errors therein or omissions therefrom.\nOnly those representations or warranties which are made in a definitive agreement regarding the Possible Transaction, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n11.\nWaiver. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate\nas a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other\nright, power or privilege hereunder.\n12. Contacts. You agree that none of you or your Representatives who are aware of the Evaluation Material and/or a Possible Transaction will\ninitiate or cause to be initiated any communication with any director, officer or employee of the Seller\n3\nconcerning the Evaluation Material or a Possible Transaction, provided that the foregoing shall not prohibit any communication with the\nChairman of the Board of Directors of the Seller or any person identified by the Seller or its Representatives to you or your Representatives as\nhaving knowledge of a Possible Transaction.\n13.\nRemedies. You hereby agree that your failure to perform any obligation or duty under this Agreement will cause irreparable harm to the Seller,\nwhich harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance\nor\nfor\ninjunctive relief against you in the event of a breach or default under the terms of this Agreement would be equitable and would not work a\nhardship on you. Accordingly, in the event of a breach or default by you hereunder, the Seller, without any bond or other security being\nrequired and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific\nperformance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof. You agree to\nreimburse the Seller for all costs and expenses (including, without limitation, attorney's fees and expenses) of enforcing the Seller's rights\nunder this Agreement. This Section shall not operate to limit any other rights or remedies of the Seller.\n14.\nSeverability.. In case any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of\nthe remaining provisions of the Agreement shall not in any way be affected or impaired thereby and such provision will be deemed to be\nrestated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.\n15.\nNo Definitive Agreement. You hereby agree that unless and until a definitive agreement regarding the Possible Transaction is executed, neither\nthe Seller nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement,\nexcept for matters specifically agreed to herein.\n16.\nAssignment. The Seller reserves the right to assign all of its rights, powers and privileges under this Agreement, including without limitation\nthe right to enforce all of the terms of this Agreement, to successors or affiliates of the Seller or any person who acquires a majority of the\noutstanding stock or all or substantially all of the assets of the Seller. Except as expressly permitted above, the Seller shall not have the right to\nassign this Agreement or its rights or obligations under this Agreement without your prior written consent. You acknowledge and agree that\nyou may not assign or otherwise delegate your obligations or duties under this Agreement to any other person. Any assignment in violation of\nthis Agreement shall be null and void ab initio.\n17.\nGoverning Law: Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without\ngiving effect to the principles of conflicts of laws thereof that would compel the application of the substantive laws of another jurisdiction In\nany dispute between the parties arising out of or relating to this Agreement, each party irrevocably and unconditionally (i) consents and\nsubmits to the jurisdiction and venue of the state or federal courts located in Hennepin County, Minnesota; (ii) consents to service of process\nby first class certified mail, return receipt requested, postage prepaid.\n18. Waiver of ry Trial EACH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES, TO THE\nFULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT' TO TRIAL BY JURY IN ANY ACTION ARISING\nOUT OF OR RELATED TO THIS AGREEMENT.\n19.\nEntire Agreement. This Agreement contains the entire agreement between the parties hereto concerning subject matter hereof, and no\nmodification of this Agreement or waiver of the terms and conditions hereof shall he binding upon either party hereto, unless approved in\nwriting by each such party.\n20. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same instrument. Signatures of the parties transmitted by facsimile or other electronic transmission shall\nbe deemed to be their origina signatures for purpose of this Agreement\nPlease confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this\nAgreement shall become a binding agreement between you and the Seller.\n4\nVery truly yours,\nCaribou Coffee Company, Inc.\nBy: /s/ Dan E. Lee\nName: Dan E. Lee\nIts: S.V.P, General Counsel & Secretary\nAccepted and agreed to as of\nthe date first written above:\nJAB Beech Inc.\nBy: /s/ Joachim Creus\nName: Joachim Creus\nIts: President\n5	EX-99.(D)(2) 12 d454990dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nDecember 7, 2012\nJAB Beech Inc.\n2200 Pennsylvania Avenue, NW\nWashington, DC 20052\nNon-Disclosure Agreement\nLadies and Gentlemen:\nIn connection with a possible negotiated transaction (the “Possible Transaction”) with Caribou Coffee Company, Inc., a Minnesota corporation\n(the “Seller”), the Seller expects to make available to JAB Beech Inc. (“you” or, together with Seller, the “parties”) certain information concerning\nitself and its business, financial condition, operations, assets and liabilities. As a condition to such information being furnished to you, the\nstockholders of your ultimate parent, and your direct and indirect affiliates, directors, officers, employees, agents, advisors (including, without\nlimitation, attorneys, accountants, consultants, bankers and financial advisors), BDT Capital Partners LLC and any other specific financing source\nthat the Seller approves to be included as a Representative, such approval of the Seller not to be unreasonably withheld, conditioned or delayed\n(collectively, “Representatives”), you agree to treat any information concerning the Seller (whether prepared by the Seller, its Representatives or\notherwise and irrespective of the form of communication) that is furnished hereunder to you or your Representatives now or in the future by or on\nbehalf of the Seller (herein collectively referred to as the “Evaluation Material”) in accordance with, and subject to, the provisions of this letter\nagreement (this “Agreement”), and to take or abstain from taking certain other actions hereinafter set forth.\n1. Evaluation Material. The term “Evaluation Material” shall include information (including historical financial information that has not been\npublicly disclosed) concerning Seller pertaining to legal and regulatory matters, customers, depositors, vendors, projections, forecasts or\ninvestments, and all records, notes, computer data, analyses, compilations, studies, reports, interpretations or other documents to the extent\ncontaining, in whole or in part, the information furnished to you or your Representatives by or on behalf of the Seller, provided, that the term\n“Evaluation Material” does not include information which (1) is or becomes generally available to the public other than as result of a breach of\nthis Agreement by you or your Representatives, (ii) was within your possession prior to it being furnished to you by or on behalf of the Seller,\nprovided that the source of such information was not known after reasonable due inquiry by you to be bound by a confidentiality agreement\nwith (or subject to any other contractual, legal or fiduciary obligation of confidentiality to) the Seller or any other party with respect to such\ninformation, or (iii) is independently developed by you or by others on your behalf without violating any of your obligations under this\nAgreement, or (iv) becomes available to you on a non-confidential basis from a source other than the Seller or its advisors, provided that such\nsource is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, the Seller or another party.\n2. Use of Evaluation Material. You agree that you and your Representatives will use the Evaluation Material solely for the purpose of proposing,\nevaluating, negotiating and consummating a Possible Transaction in accordance with the terms of this Agreement (the “Evaluation”) and that\nany other use of the Evaluation Material will constitute a breach of this Agreement. You agree to keep the Evaluation Material strictly\nconfidential and not to use or disclose the Evaluation Material without the prior written consent of the Seller, except that, subject to the\nprovisions hereof, you may disclose Evaluation Material to your Representatives to the extent that they need to know such Evaluation Material\nfor purposes of the Evaluation, provided such Representatives are informed of the confidential nature of the Evaluation Material and the\nmaterial terms of this Agreement and agree to be bound by the confidentiality provisions hereof (it being understood that, except in the case of\nfinancing sources, the foregoing shall not require any agreement in writing), and provided further that you shall be responsible for any\nunauthorized use or disclosure of Evaluation Material by your Representatives. You shall not make more copies of the Evaluation Material\nthan are reasonably necessary to perform the Evaluation.\n3. Non-Disclosure of Possible Transaction. Except as set forth elsewhere in this Agreement, each of the parties hereby acknowledges and agrees\nthat, without the other party’s prior written consent, it will not disclose to any third party the existence of this Agreement, the fact that any\nEvaluation Material has been made available hereunder, or that discussions are taking place concerning the Possible Transaction or any of the\nterms, conditions or other facts with respect thereto.\n4. Required Disclosure of Evaluation Material. In the event that (i) you or any of your Representatives are requested or required by oral\nquestions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar\nprocess or any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which your\nsecurities are listed or quoted, to disclose any of the Evaluation Material or (ii) either party or any of its Representatives are requested or\nrequired by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or\nother similar process or any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on\nwhich its securities are listed or quoted, to disclose that discussions are taking place concerning the Possible Transaction, such party shall\nprovide the other party with prompt notice of any such request or requirement so that such other party may seek a protective order or other\nappropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective order or other remedy or\nthe receipt of a waiver, such first party or any of its Representatives are nonetheless legally compelled by any requirement described in the first\nsentence of this Section 4 to disclose the Evaluation Material to such third party, such party or its Representative may, without liability\nhereunder, disclose to such third party only that portion of the Evaluation Material, or of the facts relating to the discussions taking place,\nwhich its counsel advises in writing is legally required to be disclosed, provided that such party exercises reasonable efforts to preserve the\nconfidentiality of the Evaluation Material and the discussions taking place, including, without limitation, by cooperating with the other party to\nobtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded thereto by any third party to\nwhich disclosure is made.\n5. Privileged Information. To the extent that any Evaluation Material may include material or information that is subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental\ninvestigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their mutual\ndesire, intention and understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the\nconfidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. Any Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under such privileges, under this Agreement and under the joint defense doctrine. Nothing in\nthis Agreement obligates any party to reveal material or information subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege.\n6. Compliance with Securities Laws. You hereby acknowledge that you are aware of the restrictions imposed by the United States securities laws\non the purchase or sale of securities by any person who has received material, nonpublic information from the issuer of the securities or any\naffiliate thereof and on the communication of such information to any other person when it is reasonably foreseeable that such other person is\nlikely to purchase or sell such securities in reliance on such information for so long as the information remains material and non-public and\nagree to comply with such securities laws.\n7. Standstill. You hereby agree that, from and after the date of this Agreement and until the earliest of (i) two years after the date on which\ndiscussions concerning the possibility of the Possible Transaction have terminated, (ii) the date on which the Seller or any of its subsidiaries\napproves or enters into an agreement with a third party that contemplates a merger, consolidation, tender offer, exchange offer or similar\nbusiness combination, (each, a “Merger”), unless it can be determined based on publicly available information at the time of announcement of\nsuch agreement that such Merger would result in the Seller’s stockholders immediately prior to the Merger holding, immediately following\nsuch Merger, directly or indirectly, at least 50% of the voting equity securities of either the entity resulting from such Merger or, if applicable,\nthe ultimate parent entity that directly or indirectly has beneficial ownership of all of the outstanding voting equity securities of such entity\nsurviving the Merger, (iii) the date on which the Seller or any of its subsidiaries approves or enters into an agreement with a third party that\ncontemplates the sale of greater than 50% of the assets of Seller or the acquisition of greater than 50% of any shares of any class of securities\nby Seller by tender offer, exchange offer or otherwise (each of the events listed in clauses (ii) and (iii), a “Change of Control Event”), (iv) the\ndate on which the Seller publicly announces that it is conducting a process contemplating a Change of Control Event and (v) the date on which\nthe parties enter into any definitive agreement contemplating a Change of Control Event, neither you nor any of your Representatives will in\nany manner, directly or indirectly, (a) effect, seek, offer or propose (whether publicly or otherwise), or cause or participate in or in any way\nassist any other person to effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in, (1) any acquisition of\nbeneficial ownership of any securities or assets of the Seller (other than with respect to any acquisitions in the ordinary course for passive\ninvestment purposes of up to an aggregate of 1% of the outstanding securities of any class of the securities of the Seller); (2) any tender or\nexchange offer, merger or other business combination involving the Seller; (3) any recapitalization, restructuring, liquidation, dissolution or\nother extraordinary transaction with respect to the Seller; or (4) any\n2\n-\nsolicitation of “proxies (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting\nsecurities of the Seller; (b) form, join or in any way participate in a “group (as defined under the Exchange Act) with respect to any securities\nof the Seller or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of\nthe Seller; (c) take any action which would reasonably be expected to require the Seller to make a public announcement regarding any of the\ntypes of matters set forth in (a) or (b) above; or (d) enter into any discussions or arrangements with any third party with respect to any of the\nforegoing. Notwithstanding anything to the contrary in this Agreement, following the period described in the foregoing sentence, nothing in\nthis Agreement (including the prohibitions on use and disclosure set forth in sections 2, 3 and 4 hereof) shall, directly or indirectly, prevent or\notherwise limit you or your Representatives from taking any actions referred to in clauses (a)-(d) of this section 7 or related thereto, and in\neach case without notice to or consultation with the Seller. The Seller also agrees during such period not to publicly request you (or your\nRepresentatives), directly or indirectly, to amend or waive any provision of this section (including this sentence). The Seller represents and\nwarrants that, as of the date of this Agreement, neither you nor any of your affiliates owns, of record or beneficially, any voting securities of\nthe Seller, or any securities convertible into or exercisable for any voting securities of the Seller (other than such ownership by your affiliates\nof up to an aggregate of 1% of such securities).\n8. Termination of Discussions. You understand and agree that (a) the Seller (i) may terminate your access to Evaluation Material at any time,\n(ii) shall be free to conduct any process for a Possible Transaction as it in its sole discretion shall determine and (iii) shall be free at its sole\ndiscretion at any time to accept or reject any proposal relating to a Possible Transaction for any reason without notice to you or any third party,\nand (b) you shall have no claim against the Seller or its Representatives in connection with any of the foregoing. If you decide that you do not\nwish to proceed with the Possible Transaction, you will promptly inform the Seller in writing. In that case, or at any time upon the request of\nthe Seller for any reason, you will as promptly as practicable deliver to the Seller or destroy any and all Evaluation Material furnished to you\nor your Representatives and no copy thereof shall be retained, and you shall provide written confirmation of such destruction, provided, that\n(i) you or your Representatives may, subject to the terms of this Agreement, retain any electronic records or files containing Evaluation\nMaterial which have been created pursuant to automatic archiving and back-up procedures which cannot reasonably be deleted; provided that\nneither you nor your Representatives access such archives or back-up tapes for purposes of retrieving Evaluation Material, (ii) your outside\nlegal counsel may, subject to the terms of this Agreement, retain in its files a copy of any Evaluation Material solely for use in connection with\nany disputes between the parties relating to the Evaluation Material or a possible negotiated transaction involving the parties and (iii) your\nRepresentatives that are accounting firms, investment banks or similar organizations may, subject to the terms of this Agreement, retain copies\nof the Evaluation Material in accordance with policies and procedures implemented by such persons in order to comply with applicable law,\nregulation or professional standards (provided that such Representatives do not provide you access to any such retained Evaluation Material).\nNotwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your\nobligations of confidentiality and nonuse and other obligations hereunder for a period of two years from the date first set forth above.\n9. Non-Solicitation. In consideration of the Evaluation Material being furnished to you, you agree that for a period of two years from the date\nhereof, you will not, directly or indirectly, solicit for employment or employ any of the employees of the Seller while such employees remain\nemployed by the Seller or its affiliates, provided, that this Agreement shall not prohibit (i) any general advertisement or general solicitation\nthat is not specifically targeted at such persons; or (ii) the hiring of any such persons who initiate discussions with you regarding such\nemployment without any direct or indirect solicitation by you.\n10. No Representation of Accuracy. You understand and acknowledge that the Seller and its Representatives: (i) make no representation or\nwarranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and (ii) shall have no liability to you or your\nRepresentatives relating to or resulting from the use of or reliance upon the Evaluation Material or any errors therein or omissions therefrom.\nOnly those representations or warranties which are made in a definitive agreement regarding the Possible Transaction, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\n11. Waiver. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate\nas a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other\nright, power or privilege hereunder.\n12. Contacts. You agree that none of you or your Representatives who are aware of the Evaluation Material and/or a Possible Transaction will\ninitiate or cause to be initiated any communication with any director, officer or employee of the Seller\n3\n-\n-\n-\nconcerning the Evaluation Material or a Possible Transaction, provided that the foregoing shall not prohibit any communication with the\nChairman of the Board of Directors of the Seller or any person identified by the Seller or its Representatives to you or your Representatives as\nhaving knowledge of a Possible Transaction.\n13. Remedies. You hereby agree that your failure to perform any obligation or duty under this Agreement will cause irreparable harm to the Seller,\nwhich harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance or for\ninjunctive relief against you in the event of a breach or default under the terms of this Agreement would be equitable and would not work a\nhardship on you. Accordingly, in the event of a breach or default by you hereunder, the Seller, without any bond or other security being\nrequired and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific\nperformance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof. You agree to\nreimburse the Seller for all costs and expenses (including, without limitation, attorney’s fees and expenses) of enforcing the Seller’s rights\nunder this Agreement. This Section shall not operate to limit any other rights or remedies of the Seller.\n14. Severability. In case any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of\nthe remaining provisions of the Agreement shall not in any way be affected or impaired thereby and such provision will be deemed to be\nrestated to reflect the original intention of the parties as nearly as possible in accordance with applicable law.\n15. No Definitive Agreement. You hereby agree that unless and until a definitive agreement regarding the Possible Transaction is executed, neither\nthe Seller nor you will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement,\nexcept for matters specifically agreed to herein.\n16. Assignment. The Seller reserves the right to assign all of its rights, powers and privileges under this Agreement, including without limitation\nthe right to enforce all of the terms of this Agreement, to successors or affiliates of the Seller or any person who acquires a majority of the\noutstanding stock or all or substantially all of the assets of the Seller. Except as expressly permitted above, the Seller shall not have the right to\nassign this Agreement or its rights or obligations under this Agreement without your prior written consent. You acknowledge and agree that\nyou may not assign or otherwise delegate your obligations or duties under this Agreement to any other person. Any assignment in violation of\nthis Agreement shall be null and void ab initio.\n17. Governing Law: Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Minnesota, without\ngiving effect to the principles of conflicts of laws thereof that would compel the application of the substantive laws of another jurisdiction. In\nany dispute between the parties arising out of or relating to this Agreement, each party irrevocably and unconditionally (i) consents and\nsubmits to the jurisdiction and venue of the state or federal courts located in Hennepin County, Minnesota; (ii) consents to service of process\nby first class certified mail, return receipt requested, postage prepaid.\n18. Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES, TO THE\nFULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING\nOUT OF OR RELATED TO THIS AGREEMENT.\n19. Entire Agreement. This Agreement contains the entire agreement between the parties hereto concerning subject matter hereof, and no\nmodification of this Agreement or waiver of the terms and conditions hereof shall he binding upon either party hereto, unless approved in\nwriting by each such party.\n20. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same instrument. Signatures of the parties transmitted by facsimile or other electronic transmission shall\nbe deemed to be their original signatures for purpose of this Agreement.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this\nAgreement shall become a binding agreement between you and the Seller.\n4\nVery truly yours,\nCaribou Coffee Company, Inc.\nBy: /s/ Dan E. Lee\nName: Dan E. Lee\nIts: S.V.P, General Counsel & Secretary\nAccepted and agreed to as of\nthe date first written above:\nJAB Beech Inc.\nBy: /s/ Joachim Creus\nName: Joachim Creus\nIts: President\n5
+366cab741b217eb6d2181c0292c989a7.pdf	jurisdiction party	EX-2.1 3 j1336_ex2d1.htm EX-2.1\nExhibit G\nForm of Non-Competition, Non-Solicitation and Confidentiality Agreement\nNon-Competition, Non-Solicitation\nand\nConfidentiality Agreement\nThis Non-Competition, Non-Solicitation and Confidentiality Agreement (“Agreement”) has been executed and delivered as of the ___ day of ___________________ , by ___________________ ( “Larger\nShareholder”) , for the benefit of Rural Cellular Corporation, a Minnesota corporation, ( “RCC ”) and its subsidiaries, including, but not limited to Saco River Telegraph and Telephone Company, a Maine corporation\n(“SRTT ”) .\nRECITALS:\nA.\nSRTT, certain stockholders of SRTT, including the Larger Stockholder and Rural Cellular Corporation, a Minnesota corporation (“RCC ”) entered into an Agreement and Plan of Merger\n(the “Merger Agreement”) dated as of June __ , 2000 which provides for the acquisition by a wholly owned subsidiary of RCC (or one of RCC’s subsidiaries) all of the issued and\noutstanding capital stock of SRTT; and\nB.\nUnless otherwise defined in this Agreement, capitalized terms used but not defined shall have the same definition as ascribed to such terms in the Merger Agreement; and\nC.\nAs a material inducement to RCC to acquire, through merger, SRTT , and in consideration of the terms and conditions contained in the Merger Agreement and other good and valuable\nconsideration, the Larger Stockholder has agreed to enter into this Agreement as a condition of consummating the transaction contemplated by the Merger Agreement.\nNOW, THEREFORE , in consideration of the premises, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees as follows:\n1.\nRestrictive Covenant. Larger Stockholder agrees that for a period of one (1) year from and after the date of this Agreement (“Restricted Period”) (which period shall be extended as\nappropriate for any period(s) of time that the Larger Stockholder is in breach of the restrictive covenants set forth herein), he/she/it will not, directly or indirectly, own (except for ownership of less than\nthree percent (3%) of the aggregate securities of any class of publicly traded securities of any Person), participate in (whether as a partner, shareholder, principal, member, officer, director, agent,\ntrustee, consultant, lender, employee or in any other relationship or capacity), operate, manage, or work for any Person that engages in the operation or ownership of any of the following businesses\nlocated in Maine, New Hampshire or within two hundred fifty (250) miles thereof: (A) any local exchange carrier or other wireline telecommunications business; (B) any wireless telecommunications\nbusiness, including cellular, personal communication services, microwave or other bandwidth; (C) and other communication or data services.\n2.\nNonsolicitation of Employees. The undersigned further agrees that during the Restricted Period the undersigned will not, either alone or in conjunction with any other Person, directly or indirectly,\nsolicit, divert or attempt to solicit or divert any of the employees or agents of RCC or its subsidiaries (including SRTT) to work for or represent any competitor of RCC or its subsidiaries (including SRTT) or for any\nother employment.\n3.\nConfidentiality. The undersigned agrees that all matter of a proprietary or confidential nature, including, but not limited to, financial data, information regarding customers, vendors and pricing\ninformation, which the undersigned has obtained or which the undersigned has made or compiled during or because of the undersigned’s relationship with SRTT shall be the exclusive property of SRTT and shall be\nregarded by the undersigned as of a confidential or proprietary nature. The undersigned will regard and preserve as confidential all such information, will neither disclose, nor supply to any person, firm, or business,\nnor use for the undersigned’s own benefit or business said confidential or proprietary information unless otherwise expressly authorized in writing by RCC.\n4.\nEnforcement.\n(A) The undersigned agrees that the scope of the restrictions contained in this Agreement are reasonable and necessary for the protection of RCC and its subsidiaries (including SRTT). If any court should\nhold that the covenants contained in this Agreement are too broad to be enforced, the undersigned specifically agrees that the court shall not disregard the provisions of this Agreement but shall, instead, enforce\nthose provisions as to such scope as the court deems equitable.\n(B) The undersigned recognizes that RCC and its subsidiaries (including SRTT) will suffer irreparable damage if the undersigned breaches these covenants. The undersigned recognizes that it may be\ndifficult to compute the damage to RCC and its subsidiaries (including SRTT) as a result of any such breach by the undersigned and that, therefore, in addition to any other relief to which it may be entitled, RCC and\nits subsidiaries (including SRTT) shall be entitled to apply to any court of competent jurisdiction for injunctive relief, both temporary and permanent, to restrain any breach, threatened or actual, of any of the restrictive\ncovenants contained herein, and the undersigned hereby consents to the issuance of such injunctive relief without the posting of a bond or other security.\n(C) This Agreement will be governed by the laws of the State of Maine. The undersigned hereby consents to personal jurisdiction by the federal and state courts of the State of Maine in the event of any\ndispute arising hereunder.\n5.\nMiscellaneous.\n(A) The undersigned agrees that this Agreement shall inure to the benefit of RCC and its subsidiaries (including SRTT) and their successors and assigns.\n(B) No waiver or modification of this Agreement or any provision of this Agreement will be effective unless made in writing and executed by both parties hereto.\nIN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date set forth in the first paragraph.\n(Larger Shareholder)	EX-2.l 3 j1336_ex2dl.htm EX-2.l\nExhibitG\nForm of Non-Competition, Non-Solicitation and Confidentiality Agreement\nNon-Competition, Non-Solicitation\nand\nConfidentiality Agreement\nThis Non-Competition, Non-Solicitation and Confidentiality Agreement(“Agreement") has been executed and delivered as of the ___ day of\n \n__ ("Larger\nShareholder”), for the benefit of Rural Cellular Corporation, a Minnesota corporation, (“RCC”) and is subsidiaries, including, but not limited to Saco RiverTelegraph and Telephone Company, a Maine corporation\n(”S RTT").\nRECITALS:\nA. SRTT, certain stockholders ofSRTT, including the Larger Stockholder and Rural CellularCorporation, a Minnesota corporation (“RCC”) entered into an Agreementand Plan ofMerger\n(the "M ergerAgreement") dated as of] une __ , 2000 which provides forthe acquisition by a wholly owned subsidiary ofRCC (or one ofRCC's subsidiaries) all of the issued and\noustanding capital stock ofSRTT; and\nB. Unless otherwise defined in this Agreement, capitalized terms used but not defined shall have the same definition as ascribed to such terms in the Merger Agreement; and\nC. As a material inducement to RCC to acquire, through merger, SRTT, and in consideration of the terms and conditions contained in the MergerAgreementand other good and valuable\nconsideration, the Larger Stockholder has agreed to enter into this Agreement as a condition of consummating the transaction contemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the premises, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees as follows:\n1. Restrictive Covenant. Larger Stockholder agrees that for a period of one (1) year from and after the date ofthis Agreement ("Restricted Period") (which period shall be extended as\nappropriate for any period(s) of time thatthe Larger Stockholder is in breach ofthe restrictive covenans set forth herein), he/she/it will not. directiy or indirectly, own (exceptfor ownership of less than\nthree percent (3%) of the aggregate securities of any class of publicly traded securities of any Person), participate in (whether as a partner, shareholder, principal, member, officer, director, agent,\ntrustee, consultant. lender, employee or in any other relationship or capacity), operate, manage, or work for any Person that engages in the operation or ownership of any of the following businesses\nlocated in Maine, New Hampshire or within two hundred fifty (250) miles thereof: (A) any local exchange carrier or other wireline telecommunications business: (B) any wireless telecommunications\nbusiness, including cellular, personal communication services, microwave or other bandwidth: (C) and other communication or data services.\n2. Nonsolicitation of E mployees. The undersigned further agrees that during the Restricted Period the undersigned will not, either alone or in conjunction with any other Person, directly or indirectly,\nsolicit, divert or attempt to solicit or divert any of the employees or agents of RCC or is subsidiaries (including SRTT) to work for or represent any competitor of RCC or is subsidiaries (including SRTT) or for any\nother employment.\n3. Confidentiality. The undersigned agrees that all matter of a proprietary or confidential nature, including, but not limited to, financial data, information regarding customers, vendors and pricing\ninformation, which the undersigned has obtained or which the undersigned has made or compiled during or because of the undersigned's relationship with SRTT shall be the exclusive property of SRTT and shall be\nregarded by the undersigned as of a confidential or proprietary nature. The undersigned will regard and presen/e as confidential all such information, will neither disclose, nor supply to any person, firm, or business,\nnor use forthe undersigned's own benefit or business said confidential or proprietary information unless otherwise expressly authorized in writing by RCC.\n4. Enforcement.\n(A) The undersigned agrees that the scope of the restrictions contained in this Agreementare reasonable and necessary forthe protection of RCC and its subsidiaries (including SRTT). Ifany court should\nhold that the covenans contained in this Agreement are too broad to be enforced, the undersigned specifically agrees that the court shall not disregard the provisions of this Agreement but shall, instead, enforce\nthose provisions as to such scope as the court deems equitable.\n(B) The undersigned recognizes thatRCC and its subsidiaries (including SRTT) will suffer irreparable damage if the undersigned breaches these covenants. The undersigned recognizes that it may be\ndifficult to compute the damage to RCC and is subsidiaries (including SRTT) as a result ofany such breach by the undersigned and that, therefore, in addition to any other relief to which it may be entitled, RCC and\nis subsidiaries (including SRTT) shall be entitled to apply to any court of competentjurisdiction for injunctive relief, both temporary and permanent, to restrain any breach, threatened or actual, of any of the restrictive\ncovenants contained herein, and the undersigned hereby consents to the issuance ofsuch injunctive relief withoutthe posting ofa bond or other security.\n(C) This Agreement will be governed by the laws of the State of Maine. The undersigned hereby consens to personal jurisdiction by the federal and state courts of the State of Maine in the event ofany\ndispute arising hereunder.\n5. Miscellaneous.\n(A) The undersigned agrees that this Agreement shall inure to the benefit of RCC and is subsidiaries (including SRTT) and their successors and assigns.\n(B) No waiver or modification of this Agreement or any provision of this Agreement will be effective unless made in writing and executed by both parties hereto.\nIN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date set forth in the first paragraph.\n(Larger Shareholder)	EX-2.1 j1336 ex2d1.htm EX-2.1\nExhibit G\nForm of Non-Competition, Non-Solicitation and Confidentiality Agreement\nNon-Competition, Non-Solicitation\nand\nConfidentiality Agreement\nThis Non-Competition, Non-Solicitation and Confidentiality Agreement ("Agreement") has been executed and delivered as of the\nday of\nby\n("Larger\nShareholder"), for the benefit of Rural Cellular Corporation, a Minnesota corporation, ("RCC") and its subsidiaries, including, but not limited to Saco River Telegraph and Telephone Company, a Maine corporation\n("SRTT").\nRECITALS:\nA.\nSRTT, certain stockholders of SRTT, including the Larger Stockholder and Rural Cellular Corporation, a Minnesota corporation ("RCC") entered into an Agreement and Plan of Merger\n(the "Merger Agreement") dated as of une 2000 which provides for the acquisition by a wholly owned subsidiary of RCC (or one of RCC's subsidiaries) all of the issued and\noutstanding capital stock of SRTT; and\nB.\nUnless otherwise defined in this Agreement, capitalized terms used but not defined shal have the same definition as ascribed to such terms in the Merger Agreement; and\nC.\nAs a materia inducement to RCC to acquire, through merger, SRTT, and in consideration of the terms and conditions contained in the Merger Agreement and other good and valuable\nconsideration, the Larger Stockholder has agreed to enter into this Agreement as a condition of consummating the transaction contemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the premises, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees as follows:\n1.\nRestrictive Covenant. Larger Stockholder agrees that for a period of one (1) year from and after the date of this Agreement ("Restricted Period") (which period shall be extended as\nappropriate for any period(s) of time that the Larger Stockholder is in breach of the restrictive covenants set forth herein), he/she/it will not, directly or indirectly, own (except for ownership of less than\nthree percent (3%) of the aggregate securities of any class of publicly traded securities of any Person), participate in (whether as a partner, shareholder, principal, member, officer, director, agent,\ntrustee, consultant, lender, employee or in any other relationship or capacity), operate, manage, or work for any Person that engages in the operation or ownership of any of the following businesses\nlocated in Maine, New Hampshire or within two hundred fifty (250) miles thereof: (A) any local exchange carrier or other wireline elecommunications business; (B) any wireless telecommunications\nbusiness, including cellular, persona communication services, microwave or other bandwidth; (C) and other communication or data services.\n2.\nNonsolicitation of Employees. The undersigned further agrees that during the Restricted Period the undersigned wil not, either alone or in conjunction with any other Person, directly or indirectly,\nsolicit,\ndivert\nor attempt to solicit or divert any of the employees or agents of RCC or its subsidiaries (including SRTT) to work for or represent any competitor of RCC or its subsidiaries (including SRTT) or for any\nother employment.\n3.\nConfidentiality. The undersigned agrees that all matter of a proprietary or confidentia nature, including, but not limited to, financial data, information regarding customers, vendors and pricing\ninformation, which the undersigned has obtained or which the undersigned has made or compiled during or because of the undersigned's relationship with SRTT shal be the exclusive property of SRTT and shall be\nregarded by the undersigned as of a confidential or proprietary nature. The undersigned wil regard and preserve as confidential all such information, wil neither disclose, nor supply to any person firm, or business,\nnor use for the undersigned's own benefit or business said confidential or proprietary information unless otherwise expressly authorized in writing by RCC.\n4.\nEnforcement\n(A) The undersigned agrees that the scope of the restrictions contained in this Agreement are reasonable and necessary for the protection of RCC and its subsidiaries (including SRTT). If any court should\nhold that the covenants contained in this Agreement are too broad to be enforced, the undersigned specifically agrees that the court shall not disregard the provisions of this Agreement but shall, instead, enforce\nthose provisions as to such scope as the court deems equitable.\n(B)\nThe undersigned recognizes that RCC and its subsidiaries (including SRTT) wil suffer irreparable damage if the undersigned breaches these covenants. The undersigned recognizes that it may be\ndifficult to compute the damage to RCC and its subsidiaries (including SRTT) as a result of any such breach by the undersigned and that, therefore, in addition to any other relief to which it may be entitled, RCC and\nits subsidiaries (including SRTT) shal be entitled to apply to any court of competent jurisdiction for injunctive relief, both temporary and permanent, to restrain any breach, threatened or actual, of any of the restrictive\ncovenants contained herein, and the undersigned hereby consents to the issuance of such injunctive relief without the posting of a bond or other security.\n(C)\nThis Agreement will be governed by the laws of the State of Maine. The undersigned hereby consents to persona jurisdiction by the federal and state courts of the State of Maine in the event of\nany\ndispute arising hereunder.\n5.\nMiscellaneous.\n(A) The undersigned agrees that this Agreement shal inure to the benefit of RCC and its subsidiaries (including SRTT) and their successors and assigns.\n(B)\nNo waiver or modification of this Agreement or any provision of this Agreement wil be effective unless made in writing and executed by both parties hereto.\nIN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date set forth in the first paragraph.\n(Larger Shareholder)	EX-2.1 3 j1336_ex2d1.htm EX-2.1\nExhibit G\nForm of Non-Competition, Non-Solicitation and Confidentiality Agreement\nNon-Competition, Non-Solicitation\nand\nConfidentiality Agreement\nThis Non-Competition, Non-Solicitation and Confidentiality Agreement (“Agreement”) has been executed and delivered as of the ___ day of ___________________ , by ___________________ ( “Larger\nShareholder”) , for the benefit of Rural Cellular Corporation, a Minnesota corporation, ( “RCC ”) and its subsidiaries, including, but not limited to Saco River Telegraph and Telephone Company, a Maine corporation\n(“SRTT ”) .\nRECITALS:\nA.\nSRTT, certain stockholders of SRTT, including the Larger Stockholder and Rural Cellular Corporation, a Minnesota corporation (“RCC ”) entered into an Agreement and Plan of Merger\n(the “Merger Agreement”) dated as of June __ , 2000 which provides for the acquisition by a wholly owned subsidiary of RCC (or one of RCC’s subsidiaries) all of the issued and\noutstanding capital stock of SRTT; and\nB.\nUnless otherwise defined in this Agreement, capitalized terms used but not defined shall have the same definition as ascribed to such terms in the Merger Agreement; and\nC.\nAs a material inducement to RCC to acquire, through merger, SRTT , and in consideration of the terms and conditions contained in the Merger Agreement and other good and valuable\nconsideration, the Larger Stockholder has agreed to enter into this Agreement as a condition of consummating the transaction contemplated by the Merger Agreement.\nNOW, THEREFORE , in consideration of the premises, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees as follows:\n1.\nRestrictive Covenant. Larger Stockholder agrees that for a period of one (1) year from and after the date of this Agreement (“Restricted Period”) (which period shall be extended as\nappropriate for any period(s) of time that the Larger Stockholder is in breach of the restrictive covenants set forth herein), he/she/it will not, directly or indirectly, own (except for ownership of less than\nthree percent (3%) of the aggregate securities of any class of publicly traded securities of any Person), participate in (whether as a partner, shareholder, principal, member, officer, director, agent,\ntrustee, consultant, lender, employee or in any other relationship or capacity), operate, manage, or work for any Person that engages in the operation or ownership of any of the following businesses\nlocated in Maine, New Hampshire or within two hundred fifty (250) miles thereof: (A) any local exchange carrier or other wireline telecommunications business; (B) any wireless telecommunications\nbusiness, including cellular, personal communication services, microwave or other bandwidth; (C) and other communication or data services.\n2.\nNonsolicitation of Employees. The undersigned further agrees that during the Restricted Period the undersigned will not, either alone or in conjunction with any other Person, directly or indirectly,\nsolicit, divert or attempt to solicit or divert any of the employees or agents of RCC or its subsidiaries (including SRTT) to work for or represent any competitor of RCC or its subsidiaries (including SRTT) or for any\nother employment.\n3.\nConfidentiality. The undersigned agrees that all matter of a proprietary or confidential nature, including, but not limited to, financial data, information regarding customers, vendors and pricing\ninformation, which the undersigned has obtained or which the undersigned has made or compiled during or because of the undersigned’s relationship with SRTT shall be the exclusive property of SRTT and shall be\nregarded by the undersigned as of a confidential or proprietary nature. The undersigned will regard and preserve as confidential all such information, will neither disclose, nor supply to any person, firm, or business,\nnor use for the undersigned’s own benefit or business said confidential or proprietary information unless otherwise expressly authorized in writing by RCC.\n4.\nEnforcement.\n(A) The undersigned agrees that the scope of the restrictions contained in this Agreement are reasonable and necessary for the protection of RCC and its subsidiaries (including SRTT). If any court should\nhold that the covenants contained in this Agreement are too broad to be enforced, the undersigned specifically agrees that the court shall not disregard the provisions of this Agreement but shall, instead, enforce\nthose provisions as to such scope as the court deems equitable.\n(B) The undersigned recognizes that RCC and its subsidiaries (including SRTT) will suffer irreparable damage if the undersigned breaches these covenants. The undersigned recognizes that it may be\ndifficult to compute the damage to RCC and its subsidiaries (including SRTT) as a result of any such breach by the undersigned and that, therefore, in addition to any other relief to which it may be entitled, RCC and\nits subsidiaries (including SRTT) shall be entitled to apply to any court of competent jurisdiction for injunctive relief, both temporary and permanent, to restrain any breach, threatened or actual, of any of the restrictive\ncovenants contained herein, and the undersigned hereby consents to the issuance of such injunctive relief without the posting of a bond or other security.\n(C) This Agreement will be governed by the laws of the State of Maine. The undersigned hereby consents to personal jurisdiction by the federal and state courts of the State of Maine in the event of any\ndispute arising hereunder.\n5.\nMiscellaneous.\n(A) The undersigned agrees that this Agreement shall inure to the benefit of RCC and its subsidiaries (including SRTT) and their successors and assigns.\n(B) No waiver or modification of this Agreement or any provision of this Agreement will be effective unless made in writing and executed by both parties hereto.\nIN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date set forth in the first paragraph.\n(Larger Shareholder)
+369515a9d77c4ae3f5ae876a051abf25.pdf	jurisdiction party term	EXHIBIT “B”\nFORM OF CONFIDENTIALITY AGREEMENT\nEPIQ SYSTEMS, INC.\n501 Kansas Avenue\nKansas City, KS 66105-1103\n[\n]\nTo: St. Denis J. Villere & Company, L.L.C .\nLadies and Gentlemen:\nThis letter agreement shall become effective upon due execution by each of the parties hereto. Capitalized terms used but not\notherwise defined herein shall have the meanings given to such terms in the Director Appointment Agreement (the “Director\nAppointment Agreement”) dated as of the date hereof among Epiq Systems, Inc. (the “Company”), St. Denis J. Villere & Company,\nL.L.C. and the investment funds, accounts and other clients to which it provides investment advice (“Villere”) and [\n] (the\n“Villere Designee”). The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement,\napplicable fiduciary duties and except as otherwise instructed by the Company, the Villere Designee may, disclose information\nobtained while serving a member of the Board of Directors (the “Board”) of the Company to you and the Representatives (as\nhereinafter defined) and may discuss such information with any and all such persons. As a result, you may receive certain non-public\ninformation regarding the Company. You acknowledge and agree that this information is proprietary to the Company and may\ninclude trade secrets, strategic, business or financial planning information, financial results, financial projections and forecasts,\ndiscussions or deliberations of the Board or its committees as a whole or of individual members of the Board or its committees or\nmembers of senior management, advice received by the Board or its committees or members of management of the Company from\nattorneys, accountants, consultants, financial advisors and other advisors or other business information the disclosure of which could\nharm the Company or its shareholders. In consideration for, and as a condition of, non-public information being furnished to you and\nin consideration for the Company’s agreements and obligations in the Director Appointment Agreement and, subject to the\nrestrictions in paragraph 2, your attorneys, advisors, directors, members, officers and employees (collectively, “Representatives”) and\nyou agree to treat any and all information concerning the Company that is furnished to you or your Representatives (regardless of the\nmanner in which it is furnished, including without limitation in written or electronic format or orally, gathered by visual inspection or\notherwise) by the Villere Designee, or by or on behalf of the Company or any of the Company Representatives, together with any\nnotes, analyses, compilations, studies, interpretations, documents, records, extracts or other summaries thereof containing, referring,\nrelating to, based upon or derived from such information, in whole or in part (collectively, “Confidential Information”), in accordance\nwith the provisions of this letter agreement, and to take or abstain from taking the other actions hereinafter set forth.\n1. The term “Confidential Information” does not include information that (i) is or has become generally available to the public other\nthan as a result of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement or any obligation\nof confidentiality, (ii) was within your or any of your Representatives’ possession on a non-confidential basis prior to its being\nfurnished to you by the Villere Designee, or by or on behalf of the Company or (iii) is received from a source other than the Villere\nDesignee, the Company or any of its representatives; provided, that in the case of (iii) above, the source of such information was not\nbelieved to you, after inquiring of the disclosing person, to be bound by a confidentiality agreement with or other contractual, legal or\nfiduciary obligation of confidentiality to the Company with respect to such information at the time the same was disclosed.\n2. You and your Representatives will, and you will cause your Representatives to, (a) keep the Confidential Information strictly\nconfidential, (b) not disclose any of the Confidential Information in any manner whatsoever without the prior written consent of the\nCompany and (c) not use any of the Confidential Information except to the extent permitted by the Director Appointment Agreement;\nprovided, however, that you may disclose any of such information to your Representatives (i) who need to know such information for\nthe sole purpose of advising you and (ii) who are informed by you of the confidential nature of such information; provided, further,\nthat you will be responsible for any violation of this letter agreement by your Representatives as if they were parties hereto except\nthat you will not be so responsible with respect to any such Representative who has executed a copy of this letter agreement as an\nAdditional Signatory and delivered such signed copy to the Company. It is understood and agreed that the Villere Designee shall not\ndisclose to you or your Representatives any Legal Advice (as defined below) that may be included in the Confidential Information\nwith respect to which such disclosure would constitute waiver of the Company’s attorney client privilege; provided, however, that the\nVillere Designee may provide such disclosure if reputable outside legal counsel of national standing provides the Company with a\nwritten opinion that such disclosure will not waive the Company’s attorney client privilege with respect to such Legal Advice. “Legal\nAdvice” as used herein shall be solely and exclusively limited to the advice provided by legal counsel stating legal rights, duties,\nliabilities and defenses and shall not include factual information or the formulation or analysis of business strategy.\n3. In the event that you or any of your Representatives are required by applicable subpoena, legal process or other legal requirement\nto disclose any of the Confidential Information, you will promptly (and in any event, sufficiently in advance of any such disclosure to\nallow the Company a reasonable opportunity to respond) notify (except where such notice would be legally prohibited) the Company\nin writing by facsimile and certified mail which notification shall include a list detailing the specific Confidential Information you\nintend to disclose so that the Company may seek a protective order, other appropriate remedy or other actions to limit such disclosure\n(and if the Company seeks such an order, other remedy or other actions you will provide such cooperation as the Company shall\nreasonably request, at its cost and expense). Nothing herein shall be deemed to prevent you or your Representatives, as the case may\nbe, from honoring a subpoena, legal process or other legal requirement that seeks or requires discovery, disclosure or production of\nthe Confidential Information if (a) you produce or disclose only that portion of the Confidential Information which your outside legal\ncounsel of national standing advises you is legally required to be so produced or disclosed and you inform\nthe recipient of such Confidential Information of the existence of this letter agreement and the confidential nature of such\nConfidential Information; or (b) the Company consents in writing to having the Confidential Information produced or disclosed\npursuant to the subpoena, legal process or other legal requirement. In no event will you or any of your Representatives oppose action\nby the Company to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or to obtain\nreliable assurance that confidential treatment will be afforded the Confidential Information. It is understood that there shall be no\n“legal requirement” requiring you to disclose any Confidential Information solely by virtue of the fact that, absent such disclosure,\nyou would be prohibited from purchasing, selling, or engaging in derivative transactions with respect to, the Common Stock of the\nCompany or otherwise proposing or making an offer to do any of the foregoing or making any offer, including any tender offer, or\nyou would be unable to file any proxy materials in compliance with Section 14(a) of the Exchange Act or the rules promulgated\nthereunder. Before filing any Schedule 13D or amendment thereto pursuant to Section 13(d) of the Exchange Act or the rules\npromulgated thereunder with the SEC or other governmental or regulatory body in which you intend to include Confidential\nInformation that you believe is legally required to be included in such a filing, you will submit such filing to the Company for review\nand will not include such Confidential Information in such filing if the Company provides you (not more than one business day\nfollowing your delivery of such filing to the Company), with a written opinion addressed to you of reputable outside legal counsel of\nnational standing, stating that the Confidential Information is not legally required to be included in such filing and stating that you\nmay rely upon such opinion.\n4. You acknowledge that (a) none of the Company or any of its representatives makes any representation or warranty, express or\nimplied, as to the accuracy or completeness of the Confidential Information, and (b) none of the Company or any of its\nrepresentatives shall have any liability to you or to any of your Representatives relating to or resulting from the use of the\nConfidential Information or any errors therein or omissions therefrom. You and your Representatives shall not directly or indirectly\ninitiate contact or communication with any executive or employee of the Company [other than [\n] (or any individuals\nsubstituted in the Company’s sole discretion)] concerning Confidential Information, or to seek any information in connection\ntherewith from any such person [other than [\n] (or substitute),] without the prior consent of the Company; provided, however,\nthe restriction in this sentence shall not in any way apply to the Villere Designee.\n5. All Confidential Information shall remain the property of the Company. Neither you nor any of your Representatives shall by\nvirtue of our disclosure of and/or your use of any Confidential Information acquire any rights with respect thereto, all of which rights\n(including all intellectual property rights) shall remain exclusively with the Company. Upon the request of the Company for any\nreason, you will promptly return to the Company all originals and hard copies of the Confidential Information and permanently erase\nor delete all electronic copies of the Confidential Information in your or any of your Representatives’ possession or control (and,\nupon the request of the Company, shall certify to the Company that such Confidential Information has been returned, erased or\ndeleted, as the case may be). Notwithstanding the foregoing, you and your Representatives (i) may retain a copy of the Confidential\nInformation in order to comply with applicable law, regulation or professional standards, or to comply with a bona fide document\nretention policy, and (ii) to the extent that\nConfidential Information is retained in standard archival or a computer back-up system in the ordinary course of business, such\nretained Confidential Information shall be destroyed only to the extent that it is reasonably practical to do so, provided, that, such\nretained Confidential Information shall remain subject to the terms of this letter agreement for so long as retained by you or your\nRepresentatives. Notwithstanding the return or destruction of Confidential Information, you, and your Representatives will continue\nto be bound by the confidentiality and other obligations set forth in this letter agreement.\n6. You acknowledge that the Confidential Information may constitute material non-public information under applicable federal and\nstate securities laws, and that you shall not trade or engage in any transaction involving the Company’s securities, on the basis of\nsuch information in violation of such laws.\n7. You hereby represent and warrant to the Company that (i) you have all requisite company power and authority to execute and\ndeliver this letter agreement and to perform your obligations hereunder, (ii) this letter agreement has been duly authorized, executed\nand delivered by you, and is a valid and binding obligation, enforceable against you in accordance with its terms, (iii) this Agreement\nwill not result in a violation of any terms or conditions of any agreements to which you are a party or by which you may otherwise be\nbound or of any law, rule, license, regulation, judgment, order or decree governing or affecting you, and (iv) your entry into this\nAgreement does not require approval by any owners or holders of any equity interest in you (except as has already been obtained).\n8. Any waiver by the Company of a breach of any provision of this letter agreement shall not operate as or be construed to be a\nwaiver of any other breach of such provision or of any breach of any other provision of this letter agreement. The failure of the\nCompany to insist upon strict adherence to any term of this letter agreement on one or more occasions shall not be considered a\nwaiver or deprive the Company of the right thereafter to insist upon strict adherence to that term or any other term of this letter\nagreement.\n9. You acknowledge and agree that the value of the Confidential Information to the Company is unique and substantial, but may be\nimpractical or difficult to assess in monetary terms. You further acknowledge and agree that in the event of an actual or threatened\nviolation of this letter agreement, immediate and irreparable harm or injury would be caused for which money damages would not be\nan adequate remedy. Accordingly, you acknowledge and agree that, in addition to any and all other remedies which may be available\nto the Company at law or equity, the Company shall be entitled to an injunction or injunctions to prevent breaches of this letter\nagreement and to enforce specifically the terms and provisions of this letter agreement exclusively in the Circuit Courts of Jackson\nCounty in the State of Missouri, or, if such court lacks subject matter jurisdiction, the United States District Court for the Western\nDistrict of Missouri (the “Chosen Courts”). In the event that any action shall be brought in equity to enforce the provisions of this\nletter agreement, you shall not allege, and you hereby waive the defense, that there is an adequate remedy at law.\n10. Each of the parties hereto (a) consents to submit itself to the personal jurisdiction of the Chosen Courts in the event any dispute\narises out of this letter agreement or the transactions contemplated by this letter agreement, (b) agrees that it shall not attempt to deny\nor defeat such personal jurisdiction by motion or other request for leave from any such court, (c) agrees that it shall not bring any\naction relating to this letter agreement or the transactions contemplated by this letter agreement in any court other than the Chosen\nCourts, and each of the parties irrevocably waives the right to trial by jury, (d) agrees to waive any bonding requirement under any\napplicable law, in the case any other party seeks to enforce the terms by way of equitable relief, and (e) each of the parties irrevocably\nconsents to service of process by a reputable overnight delivery service, signature requested, to the address of such parties’ principal\nplace of business or as otherwise provided by applicable law. THIS LETTER AGREEMENT SHALL BE GOVERNED IN ALL\nRESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF MISSOURI\nAPPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE WITHOUT\nGIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.\n11. This letter agreement and the Director Appointment Agreement contain the entire understanding of the parties with respect to the\nsubject matter hereof and thereof and this letter agreement may be amended only by an agreement in writing executed by the parties\nhereto.\n12. All notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in\nregard hereto shall be in writing and shall be deemed validly given, made or served, if (a) given by telecopy and email, when such\ntelecopy is transmitted to the telecopy number set forth below and sent to the email address set forth below and the appropriate\nconfirmation is received or (b) if given by any other means, when actually received during normal business hours at the address\nspecified in this subsection:\nIf to the Company:\nEpiq Systems, Inc.\n501 Kansas Avenue\nKansas City, KS 66105-1103\nAttention:\nGeneral Counsel\nFacsimile:\n(913) 321-1243\nEmail:\njrothman@epiqsystems.com\nWith a copy to (which shall not constitute notice):\nKirkland & Ellis LLP\n300 North LaSalle\nChicago, IL 60654\nAttention:\nRichard W. Porter, P.C .\nRobert M. Hayward, P.C .\nPhone:\n(312) 862-2000\nFacsimile:\n(312) 862-2200\nEmail:\nRichard.Porter@kirkland.com\nRobert.Hayward@kirkland.com\nIf to Villere:\nSt. Denis J. Villere & Company, L.L .C .\n601 Poydras St, Suite 1808\nNew Orleans, LA 70130\nAttention:\nGeorge Young\nFacsimile:\n(504) 599-4544\nEmail:\ngeorgey@villere.com\nWith a copy to (which shall not constitute notice):\nSkadden, Arps, Slate, Meagher & Flom LLP\nFour Times Square\nNew York, NY 10036-6522\nAttention:\nRichard J. Grossman\nPaul T. Schnell\nPhone:\n(212) 735-3000\nFacsimile:\n(212) 735-2000\nEmail:\nrichard.grossman@skadden.com\npaul.schnell@skadden.com\nWith a copy to (which shall not constitute notice):\nLiskow and Lewis\nOne Shell Square\n701 Poydras Street, Suite 500\nNew Orleans, LA 70139\nAttention:\nJohn C. Anjier\nPhone:\n(504) 556-4177\nFacsimile:\n(504) 556-4108\nEmail:\njcanjier@liskow.com\n13. If at any time subsequent to the date hereof, any provision of this letter agreement shall be held by any court of competent\njurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of\nsuch provision shall have no effect upon the legality or enforceability of any other provision of this letter agreement.\n14. This letter agreement may be executed in two or more counterparts which together shall constitute a single agreement.\n15. This letter agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part, by\nyou without the express written consent of the Company. This letter agreement, however, shall be binding on successors of the parties\nhereto.\n17. This letter agreement shall expire upon the earlier of (i) two (2) years from the date that no Villere Designee serves as a director\nof the Company and (ii) two (2) years from the date on which Villere last received any Confidential Information; except that you\nshall maintain in accordance with the confidentiality obligations set forth herein any Confidential Information constituting trade\nsecrets for such time as such information constitutes a trade secret of the Company as defined under 18 U.S.C. § 1839(3).\n[Signature Page Follows]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this\nletter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nEPIQ SYSTEMS, INC.\nBy:\nName:\nTitle:\nSignature Page to Confidentiality Agreement\nAccepted and agreed as of the date first written above:\nST. DENIS J. VILLERE & COMPANY, L.L .C .\nBy:\nName:\nTitle:\nSignature Page to Confidentiality Agreement	EXHIBIT “B"\nFORM OF CONFIDENTIALITY AGREEMENT\nEPIQ SYSTEMS, INC.\n501 Kansas Avenue\nKansas City, KS 66105-1103\nTo: St. Denis]. Villere & Company, L.L.C.\nLadies and Gentlemen:\nThis letter agreement shall become effective upon due execution by each of the parties hereto. Capitalized terms used but not\notherwise defined herein shall have the meanings given to such terms in the Director Appointment Agreement (the ”Director\nAppointment Agreement”) dated as of the date hereof among Epiq Systems, Inc. (the ”Company”), St. Denis]. Villere & Company,\nL.L.C. and the investment funds, accounts and other clients to which it provides investment advice (”W") and [ ] (the\n”Villere Designee"). The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement,\napplicable fiduciary duties and except as otherwise instructed by the Company, the Villere Designee may, disclose information\nobtained while serving a member of the Board of Directors (the ”Bold") of the Company to you and the Representatives (as\nhereinafter defined) and may discuss such information with any and all such persons. As a result, you may receive certain non-public\ninformation regarding the Company. Y ou acknowledge and agree that this information is proprietary to the Company and may\ninclude trade secrets, strategic, business or financial planning information, financial results, financial projections and forecasts,\ndiscussions or deliberations of the Board or its committees as a whole or of individual members of the Board or its committees or\nmembers of senior management, advice received by the Board or its committees or members of management of the Company from\nattorneys, accountants, consultants, financial advisors and other advisors or other business information the disclosure of which could\nharm the Company or its shareholders. In consideration for, and as a condition of, non-public information being furnished to you and\nin consideration for the Company' s agreements and obligations in the Director Appointment Agreement and, subject to the\nrestrictions in paragraph 2, your attorneys, advisors, directors, members, officers and employees (collectively, ”Representatives”) and\nyou agree to treat any and all information concerning the Company that is furnished to you or your Representatives (regardless of the\nmanner in which it is furnished, including without limitation in written or electronic format or orally, gathered by visual inspection or\notherwise) by the Villere Designee, or by or on behalf of the Company or any of the Company Representatives, together with any\nnotes, analyses, compilations, studies, interpretations, documents, records, extracts or other summaries thereof containing, referring,\nrelating to, based upon or derived from such information, in whole or in part (collectively, ”Confidential Information”), in accordance\nwith the provisions of this letter agreement, and to take or abstain from taking the other actions hereinafter set forth.\n \n1. The term ”Confidential Information” does not include information that (i) is or has become generally available to the public other\nthan as a result of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement or any obligation\nof confidentiality, (ii) was within your or any of your Representatives’ possession on a non-confidential basis prior to its being\nfurnished to you by the Villere Designee, or by or on behalf of the Company or (iii) is received from a source other than the Villere\nDesignee, the Company or any of its representatives; provided, that in the case of (iii) above, the source of such information was not\nbelieved to you, after inquiring of the disclosing person, to be bound by a confidentiality agreement with or other contractual, legal or\nfiduciary obligation of confidentiality to the Company with respect to such information at the time the same was disclosed.\n2. Y ou and your Representatives will, and you will cause your Representatives to, (a) keep the Confidential Information strictly\nconfidential, (b) not disclose any of the Confidential Information in any manner whatsoever without the prior written consent of the\nCompany and (c) not use any of the Confidential Information except to the extent permitted by the Director Appointment Agreement;\nprovided, however, that you may disclose any of such information to your Representatives (i) who need to know such information for\nthe sole purpose of advising you and (ii) who are informed by you of the confidential nature of such information; provided, further,\nthat you will be responsible for any violation of this letter agreement by your Representatives as if they were parties hereto except\nthat you will not be so responsible with respect to any such Representative who has executed a copy of this letter agreement as an\nAdditional Signatory and delivered such signed copy to the Company. It is understood and agreed that the Villere D esignee shall not\ndisclose to you or your Representatives any Legal Advice (as defined below) that may be included in the Confidential Information\nwith respect to which such disclosure would constitute waiver of the Company' s attorney client privilege; provided, however, that the\nVillere Designee may provide such disclosure if reputable outside legal counsel of national standing provides the Company with a\nwritten opinion that such disclosure will not waive the Company' s attorney client privilege with respect to such Legal Advice. ”Egg\nM” as used herein shall be solely and exclusively limited to the advice provided by legal counsel stating legal rights, duties,\nliabilities and defenses and shall not include factual information or the formulation or analysis of business strategy.\n3. In the event that you or any of your Representatives are required by applicable subpoena, legal process or other legal requirement\nto disclose any of the Confidential Information, you will promptly (and in any event, sufficiently in advance of any such disclosure to\nallow the Company a reasonable opportunity to respond) notify (except where such notice would be legally prohibited) the Company\nin writing by facsimile and certified mail which notification shall include a list detailing the specific Confidential Information you\nintend to disclose so that the Company may seek a protective order, other appropriate remedy or other actions to limit such disclosure\n(and if the Company seeks such an order, other remedy or other actions you will provide such cooperation as the Company shall\nreasonably request, at its cost and expense). Nothing herein shall be deemed to prevent you or your Representatives, as the case may\nbe, from honoring a subpoena, legal process or other legal requirement that seeks or requires discovery, disclosure or production of\nthe Confidential Information if (a) you produce or disclose only that portion of the Confidential Information which your outside legal\ncounsel of national standing advises you is legally required to be so produced or disclosed and you inform\n \nthe recipient of such Confidential Information of the existence of this letter agreement and the confidential nature of such\nConfidential Information; or (b) the Company consents in writing to having the Confidential Information produced or disclosed\npursuant to the subpoena, legal process or other legal requirement. In no event will you or any of your Representatives oppose action\nby the Company to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or to obtain\nreliable assurance that confidential treatment will be afforded the Confidential Information. It is understood that there shall be no\n”legal requirement” requiring you to disclose any Confidential Information solely by virtue of the fact that, absent such disclosure,\nyou would be prohibited from purchasing, selling, or engaging in derivative transactions with respect to, the Common Stock of the\nCompany or otherwise proposing or making an offer to do any of the foregoing or making any offer, including any tender offer, or\nyou would be unable to file any proxy materials in compliance with Section 14(a) of the Exchange A ct or the rules promulgated\nthereunder. Before filing any Schedule 13D or amendment thereto pursuant to Section 13(d) of the Exchange Act or the rules\npromulgated thereunder with the SEC or other governmental or regulatory body in which you intend to include Confidential\nInformation that you believe is legally required to be included in such a filing, you will submit such filing to the Company for review\nand will not include such Confidential Information in such filing if the Company provides you (not more than one business day\nfollowing your delivery of such filing to the Company), with a written opinion addressed to you of reputable outside legal counsel of\nnational standing, stating that the Confidential Information is not legally required to be included in such filing and stating that you\nmay rely upon such opinion.\n4. Y ou acknowledge that (a) none of the Company or any of its representatives makes any representation or warranty, express or\nimplied, as to the accuracy or completeness of the Confidential Information, and (b) none of the Company or any of its\nrepresentatives shall have any liability to you or to any of your Representatives relating to or resulting from the use of the\nConfidential Information or any errors therein or omissions therefrom. Y ou and your Representatives shall not directly or indirectly\ninitiate contact or communication with any executive or employee of the Company [other than [ ] (or any individuals\nsubstituted in the Company' s sole discretion)] concerning Confidential Information, or to seek any information in connection\ntherewith from any such person [other than [ ] (or substitute),] without the prior consent of the Company; provided, however,\nthe restriction in this sentence shall not in any way apply to the Villere Designee.\n5. All Confidential Information shall remain the property of the Company. Neither you nor any of your Representatives shall by\nvirtue of our disclosure of and/or your use of any Confidential Information acquire any rights with respect thereto, all of which rights\n(including all intellectual property rights) shall remain exclusively with the Company. Upon the request of the Company for any\nreason, you will promptly return to the Company all originals and hard copies of the Confidential Information and permanently erase\nor delete all electronic copies of the Confidential Information in your or any of your Representatives' possession or control (and,\nupon the request of the Company, shall certify to the Company that such Confidential Information has been returned, erased or\ndeleted, as the case may be). Notwithstanding the foregoing, you and your Representatives (i) may retain a copy of the Confidential\nInformation in order to comply with applicable law, regulation or professional standards, or to comply with a bona fide document\nretention policy, and (ii) to the extent that\n \nConfidential Information is retained in standard archival or a computer back-up system in the ordinary course of business, such\nretained Confidential Information shall be destroyed only to the extent that it is reasonably practical to do so, provided, that, such\nretained Confidential Information shall remain subject to the terms of this letter agreement for so long as retained by you or your\nRepresentatives. Notwithstanding the return or destruction of Confidential Information, you, and your Representatives will continue\nto be bound by the confidentiality and other obligations set forth in this letter agreement.\n6. Y ou acknowledge that the Confidential Information may constitute material non-public information under applicable federal and\nstate securities laws, and that you shall not trade or engage in any transaction involving the Company' s securities, on the basis of\nsuch information in violation of such laws.\n7. Y ou hereby represent and warrant to the Company that (i) you have all requisite company power and authority to execute and\ndeliver this letter agreement and to perform your obligations hereunder, (ii) this letter agreement has been duly authorized, executed\nand delivered by you, and is a valid and binding obligation, enforceable against you in accordance with its terms, (iii) this Agreement\nwill not result in a violation of any terms or conditions of any agreements to which you are a party or by which you may otherwise be\nbound or of any law, rule, license, regulation, judgment, order or decree governing or affecting you, and (iv) your entry into this\nAgreement does not require approval by any owners or holders of any equity interest in you (except as has already been obtained).\n8. Any waiver by the Company of a breach of any provision of this letter agreement shall not operate as or be construed to be a\nwaiver of any other breach of such provision or of any breach of any other provision of this letter agreement. The failure of the\nCompany to insist upon strict adherence to any term of this letter agreement on one or more occasions shall not be considered a\nwaiver or deprive the Company of the right thereafter to insist upon strict adherence to that term or any other term of this letter\nagreement.\n9. Y ou acknowledge and agree that the value of the Confidential Information to the Company is unique and substantial, but may be\nimpractical or difficult to assess in monetary terms. Y ou further acknowledge and agree that in the event of an actual or threatened\nviolation of this letter agreement, immediate and irreparable harm or injury would be caused for which money damages would not be\nan adequate remedy. Accordingly, you acknowledge and agree that, in addition to any and all other remedies which may be available\nto the Company at law or equity, the Company shall be entitled to an injunction or injunctions to prevent breaches of this letter\nagreement and to enforce specifically the terms and provisions of this letter agreement exclusively in the Circuit Courts of Jackson\nCounty in the State of Missouri, or, if such court lacks subject matter jurisdiction, the United States District Court for the Western\nDistrict of Missouri (the ”Chosen Courts”). In the event that any action shall be brought in equity to enforce the provisions of this\nletter agreement, you shall not allege, and you hereby waive the defense, that there is an adequate remedy at law.\n \n10. Each of the parties hereto (a) consents to submit itself to the personal jurisdiction of the Chosen Courts in the event any dispute\narises out of this letter agreement or the transactions contemplated by this letter agreement, (b) agrees that it shall not attempt to deny\nor defeat such personal jurisdiction by motion or other request for leave from any such court, (c) agrees that it shall not bring any\naction relating to this letter agreement or the transactions contemplated by this letter agreement in any court other than the Chosen\nCourts, and each of the parties irrevocably waives the right to trial by jury, (d) agrees to waive any bonding requirement under any\napplicable law, in the case any other party seeks to enforce the terms by way of equitable relief, and (e) each of the parties irrevocably\nconsents to service of process by a reputable overnight delivery service, signature requested, to the address of such parties' principal\nplace of business or as otherwise provided by applicable law. THIS LETTER AGREEMENT SHALL BE GOVERNED IN ALL\nRESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF MISSOURI\nAPPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE WITHOUT\nGIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.\n11. This letter agreement and the Director Appointment Agreement contain the entire understanding of the parties with respect to the\nsubject matter hereof and thereof and this letter agreement may be amended only by an agreement in writing executed by the parties\nhereto.\n12. All notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in\nregard hereto shall be in writing and shall be deemed validly given, made or served, if (a) given by telecopy and email, when such\ntelecopy is transmitted to the telecopy number set forth below and sent to the email address set forth below and the appropriate\nconfirmation is received or (b) if given by any other means, when actually received during normal business hours at the address\nspecified in this subsection:\nIf to the Company:\nEpiq Systems, Inc.\n501 Kansas Avenue\nKansas City, KS 66105-1103\nAttention: G eneral Counsel\nFacsimile: (913) 321-1243\nEmail: jrothman@ epiqsystems.com\nWith a copy to (which shall not constitute notice):\nKirkland & Ellis LLP\n300 North LaSalle\nChicago, IL 60654\nAttention: Richard W. Porter, P.C.\nRobert M. Hayward, PC.\nPhone: (312) 862-2000\nFacsimile: (312) 862-2200\nEmail: Richard.Porter@ kirklandcom\nRobert.Hayward@ kirklandcom\nIf to Villere:\nSt. D enis J. Villere & Company, L .L .C.\n601 Poydras St, Suite 1808\n \nNew Orleans, LA 70130\nA ttention: G eorge Y oung\nFacsimile: (504) 599-4544\nEmail: georgey@ villere.com\nWith a copy to (which shall not constitute notice):\nSkadden, Arps, Slate, Meagher & Flom LLP\nFour Times Square\nNew Y ork, NY 10036-6522\nAttention: Richard]. Grossman\nPaul T. Schnell\nPhone: (212) 735-3000\nFacsimile: (212) 735-2000\nEmail: richard.grossman@ skadden.com\npaul.schnell@ skadden.com\nWith a copy to (which shall not constitute notice):\nLiskow and Lewis\nOne Shell Square\n701 Poydras Street, Suite 500\nNew Orleans, LA 70139\nAttention: John C. Anjier\nPhone: (504) 556-4177\nFacsimile: (504) 556-4108\nEmail: jcanjier@liskow.com\n13. If at any time subsequent to the date hereof, any provision of this letter agreement shall be held by any court of competent\njurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of\nsuch provision shall have no effect upon the legality or enforceability of any other provision of this letter agreement.\n14. This letter agreement may be executed in two or more counterparts which together shall constitute a single agreement.\n15. This letter agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part, by\nyou without the express written consent of the Company. This letter agreement, however, shall be binding on successors of the parties\nhereto.\n17. This letter agreement shall expire upon the earlier of (i) two (2) years from the date that no Villere Designee serves as a director\nof the Company and (ii) two (2) years from the date on which Villere last received any Confidential Information; except that you\nshall maintain in accordance with the confidentiality obligations set forth herein any Confidential Information constituting trade\nsecrets for such time as such information constitutes a trade secret of the Company as defined under 18 U.S.C. § 1839(3).\n[Signature Page Follows]\n \nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this\nletter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nEPIQ SY STEMS, INC.\nBy:\nName:\nTitle:\nSignature Page to C onfidentiality Agreement\n \nAccepted and agreed as of the date first written above:\nST. DENIS]. VILLERE & COMPANY, L.L.C.\nBy:\name:\nTitle:\nSignature Page to C onfidentiality Agreement	EXHIBIT "B"\nFORM OF CONFIDENTIALITY AGREEMENT\nEPIQ SY STEMS, INC.\n501 Kansas Avenue\nKansas City, KS 66105-1103\nTo: St. Denis J. Villere & Company, L.L.C.\nLadies and Gentlemen:\nThis letter agreement shall become effective upon due execution by each of the parties hereto. Capitalized terms used but not\notherwise defined herein shall have the meanings given to such terms in the Director A ppointment A greement (the "Director\nppointment A greement") dated as of the date hereof among Epiq Systems, Inc. (the "Company"), St. Denis J. Villere & Company,\nL.L.C. and the investment funds, accounts and other clients to which it provides investment advice ("Villere") and I\n] (the\n"Villere Designee"). The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement,\napplicable fiduciary duties and except as otherwise instructed by the Company, the Villere Designee may, disclose information\nobtained while serving a member of the Board of Directors (the "Board") of the Company to you and the Representatives (as\nhereinafter defined) and may discuss such information with any and all such persons. As a result, you may receive certain non-public\ninformation regarding the Company. Y ou acknowledge and agree that this information is proprietary to the Company and may\ninclude trade secrets, strategic, business or financial planning information, financial results, financial projections and forecasts,\ndiscussions or deliberations of the Board or its committees as a whole or of individual members of the Board or its committees or\nmembers of senior management, advice received by the Board or its committees or members of management of the Company from\nattorneys, accountants, consultants, financial advisors and other advisors or other business information the disclosure of which could\nharm the Company or its shareholders. In consideration for, and as a condition of, non-public information being furnished to you and\nin consideration for the Company's agreements and obligations in the Director A ppointment A greement and, subject to the\nrestrictions in paragraph 2, your attorneys, advisors, directors, members, officers and employees (collectively, "Representatives") and\nyou agree to treat any and all information concerning the Company that is furnished to you or your Representatives (regardless of the\nmanner in which it is furnished, including without limitation in written or electronic format or orally, gathered by visual inspection\nor\notherwise) by the Villere Designee, or by or on behalf of the Company or any of the Company Representatives, together with any\nnotes, analyses, compilations, studies, interpretations, documents, records, extracts or other summaries thereof containing, referring,\nrelating to, based upon or derived from such information, in whole or in part (collectively, "Confidential Information"), in accordance\nwith the provisions of this letter agreement, and to take or abstain from taking the other actions hereinafter set forth.\n1. The term "Confidential Information" does not include information that (i) is or has become generally available to the public other\nthan as a result of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement or any obligation\nof confidentiality, (ii) was within your or any of your Representatives' possession on a non-confidential basis prior to its being\nfurnished to you by the Villere Designee, or by or on behalf of the Company or (iii) is received from a source other than the Villere\nDesignee, the Company or any of its representatives; provided, that in the case of (iii) above, the source of such information was not\nbelieved to you, after inquiring of the disclosing person, to be bound by a confidentiality agreement with or other contractual, legal or\nfiduciary obligation of confidentiality to the Company with respect to such information at the time the same was disclosed.\n2. Y ou and your Representatives will, and you will cause your Representatives to, (a) keep the Confidential Information strictly\nconfidential, (b) not disclose any of the Confidential Information in any manner whatsoever without the prior written consent of the\nCompany and (c) not use any of the Confidential Information except to the extent permitted by the Director A ppointment A greement;\nprovided, however, that you may disclose any of such information to your Representatives (i) who need to know such information for\nthe sole purpose of advising you and (ii) who are informed by you of the confidential nature of such information; provided, further,\nthat you will be responsible for any violation of this letter agreement by your Representatives as if they were parties hereto except\nthat you will not be so responsible with respect to any such Representative who has executed a copy of this letter agreement as an\ndditional Signatory and delivered such signed copy to the Company. It is understood and agreed that the Villere esignee shall not\ndisclose to you or your Representatives any Legal dvice (as defined below) that may be included in the Confidential Information\nwith respect to which such disclosure would constitute waiver of the Company's attorney client privilege; provided, however that the\nVillere Designee may provide such disclosure if reputable outside legal counsel of national standing provides the Company with a\nwritten opinion that such disclosure will not waive the Company's attorney client privilege with respect to such Legal A dvice. "Legal\nAdvice" as used herein shall be solely and exclusively limited to the advice provided by legal counsel stating legal rights, duties,\nliabilities and defenses and shall not include factual information or the formulation or analysis of business strategy.\n3.\nIn the event that you or any of your Representatives are required by applicable subpoena, legal process or other legal requirement\nto disclose any of the Confidential Information, you will promptly (and in any event, sufficiently in advance of any such disclosure to\nallow the Company a reasonable opportunity to respond) notify (except where such notice would be legally prohibited) the Company\nin writing by facsimile and certified mail which notification shall include a list detailing the specific Confidential Information you\nintend to disclose so that the Company may seek a protective order, other appropriate remedy or other actions to limit such disclosure\n(and if the Company seeks such an order, other remedy or other actions you will provide such cooperation as the Company shall\nreasonably request, at its cost and expense). Nothing herein shall be deemed to prevent you or your Representatives, as the case may\nbe, from honoring a subpoena, legal process or other legal requirement that seeks or requires discovery, disclosure or production of\nthe Confidential Information if (a) you produce or disclose only that portion of the Confidential Information which your outside legal\ncounsel of national standing advises you is legally required to be so produced or disclosed and you inform\nthe recipient of such Confidential Information of the existence of this letter agreement and the confidential nature of such\nConfidential Information; or (b) the Company consents in writing to having the Confidential Information produced or disclosed\npursuant to the subpoena, legal process or other legal requirement In no event will you or any of your Representatives oppose action\nby the Company to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or to obtain\nreliable assurance that confidential treatment will be afforded the Confidential Information. It is understood that there shall be no\n"legal requirement" requiring you to disclose any Confidential Information solely by virtue of the fact that, absent such disclosure,\nyou would be prohibited from purchasing, selling, or engaging in derivative transactions with respect to, the Common Stock of the\nCompany or otherwise proposing or making an offer to do any of the foregoing or making any offer, including any tender offer, or\nyou would be unable to file any proxy materials in compliance with Section 14(a) of the Exchange A ct or the rules promulgated\nthereunder Before filing any Schedule 13D or amendment thereto pursuant to Section 13(d) of the Exchange A ct or the rules\npromulgated thereunder with the SEC or other governmental or regulatory body in which you intend to include Confidential\nInformation that you believe is legally required to be included in such a filing, you will submit such filing to the Company for review\nand will not include such Confidential Information in such filing if the Company provides you (not more than one business day\nfollowing your delivery of such filing to the Company), with a written opinion addressed to you of reputable outside legal counsel of\nnational standing, stating that the Confidential Information is not legally required to be included in such filing and stating that you\nmay rely upon such opinion.\n4. Y ou acknowledge that (a) none of the Company or any of its representatives makes any representation or warranty, express or\nimplied, as to the accuracy or completeness of the Confidential Information, and (b) none of the Company or any of its\nrepresentatives shall have any liability to you or to any of your Representatives relating to or resulting from the use of the\nConfidential Information or any errors therein or omissions therefrom. Y ou and your Representatives shall not directly or indirectly\ninitiate contact or communication with any executive or employee of the Company [other than I\n] (or any individuals\nsubstituted in the Company's sole discretion) concerning Confidential Information, or to seek any information in connection\ntherewith from any such person [other than I ] (or substitute), without the prior consent of the Company; provided, however,\nthe restriction in this sentence shall not in any way apply to the Villere Designee.\n5. All Confidential Information shall remain the property of the Company. Neither you nor any of your Representatives shall by\nvirtue of our disclosure of and/or your use of any Confidential Information acquire any rights with respect thereto, all of which rights\n(including all intellectual property rights) shall remain exclusively with the Company. Upon the request of the Company for any\nreason, you will promptly retum to the Company all originals and hard copies of the Confidentia Information and permanently erase\nor delete all electronic copies of the Confidential Information in your or any of your Representatives' possession or control (and,\nupon the request of the Company, shall certify to the Company that such Confidential Information has been retured, erased or\ndeleted, as the case may be). Notwithstanding the foregoing, you and your Representatives (i) may retain a copy of the Confidential\nInformation in order to comply with applicable law, regulation or professional standards, or to comply with a bona fide document\nretention policy, and (ii) to the extent that\nConfidential Information is retained in standard archival or a computer back-up system in the ordinary course of business, such\nretained Confidential Information shall be destroyed only to the extent that it is reasonably practical to do so, provided, that, such\nretained Confidential Information shall remain subject to the terms of this letter agreement for so long as retained by you or your\nRepresentatives. Notwithstanding the return or destruction of Confidential Information, you, and your Representatives will continue\nto be bound by the confidentiality and other obligations set forth in this letter agreement.\n6. Y ou acknowledge that the Confidential Information may constitute material non-public information under applicable federal and\nstate securities laws, and that you shall not trade or engage in any transaction involving the Company's securities, on the basis of\nsuch information in violation of such laws.\n7. Y ou hereby represent and warrant to the Company that (i) you have all requisite company power and authority to execute\nand\ndeliver this letter agreement and to perform your obligations hereunder, (ii) this letter agreement has been duly authorized, executed\nand delivered by you, and is a valid and binding obligation enforceable against you in accordance with its terms, (iii) this A greement\nwill not result in a violation of any terms or conditions of any agreements to which you are a party or by which you may otherwise be\nbound or of any law, rule, license, regulation, judgment, order or decree governing or affecting you, and (iv) your entry into this\nA greement does not require approval by any owners or holders of any equity interest in you (except as has already been obtained).\n8. Any waiver by the Company of a breach of any provision of this letter agreement shall not operate as or be construed to be a\nwaiver of any other breach of such provision or of any breach of any other provision of this letter agreement. The failure of the\nCompany to insist upon strict adherence to any term of this letter agreement on one or more occasions shall not be considered\na\nwaiver or deprive the Company of the right thereafter to insist upon strict adherence to that term or any other term of this letter\nagreement.\n9. Y ou acknowledge and agree that the value of the Confidentia Information to the Company is unique and substantial, but may\nbe\nimpractical or difficult to assess in monetary terms. Y ou further acknowledge and agree that in the event of an actual or threatened\nviolation of this letter agreement, immediate and irreparable harm or injury would be caused for which money damages would not be\nan adequate remedy. A ccordingly, you acknowledge and agree that, in addition to any and all other remedies which may be available\nto the Company at law or equity, the Company shall be entitled to an injunction or injunctions to prevent breaches of this letter\nagreement and to enforce specifically the terms and provisions of this letter agreement exclusively in the Circuit Courts of Jackson\nCounty in the State of Missouri, or, if such court lacks subject matter jurisdiction, the United States District Court for the estem\nDistrict of Missouri (the "Chosen Courts"). In the event that any action shall be brought in equity to enforce the provisions of this\nletter agreement, you shall not allege, and you hereby waive the defense, that there is an adequate remedy at law.\n10. Each of the parties hereto (a) consents to submit itself to the personal jurisdiction of the Chosen Courts in the event any dispute\narises out of this letter agreement or the transactions contemplated by this letter agreement, (b) agrees that it shall not attempt to deny\nor defeat such personal jurisdiction by motion or other request for leave from any such court, (c) agrees that it shall not bring any\naction relating to this letter agreement or the transactions contemplated by this letter agreement in any court other than the Chosen\nCourts, and each of the parties irrevocably waives the right to trial by jury, (d) agrees to waive any bonding requirement under any\napplicable law, in the case any other party seeks to enforce the terms by way of equitable relief, and (e) each of the parties irrevocably\nconsents to service of process by a reputable overnight delivery service, signature requested, to the address of such parties' principal\nplace of business or as otherwise provided by applicable law. THIS LETTER AGREEMENT SHALL BE GOVERNED IN ALL\nRESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF MISSOURI\nAPPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE WITHOUT\nGIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.\n11. This letter agreement and the Director A ppointment A greement contain the entire understanding of the parties with respect to the\nsubject matter hereof and thereof and this letter agreement may be amended only by an agreement in writing executed by the parties\nhereto.\n12. All notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in\nregard hereto shall be in writing and shall be deemed validly given, made or served, if (a) given by telecopy and email, when such\ntelecopy is transmitted to the telecopy number set forth below and sent to the email address set forth below and the appropriate\nconfirmation is received or (b) if given by any other means, when actually received during normal business hours at the address\nspecified in this subsection:\nIf to the Company:\nEpiq Systems, Inc.\n501 (ansas Avenue\nKansas City, KS 66105-1103\nA ttention:\nGeneral Counsel\nFacsimile:\n(913) 321-1243\nEmail:\njrothman@epiqsystems.com\nWith a copy to (which shall not constitute notice):\nKirkland & Ellis LLP\n300 North LaSalle\nChicago, IL 60654\nA ttention:\nRichard W. Porter, P.C.\nRobert M. Hayward, P.C.\nPhone:\n(312) 862-2000\nFacsimile:\n(312) 862-2200\nEmail:\nRichard.Porter@kirkland.com\nRobert.Hayward@kirkland.com\nIf to Villere:\nSt. Denis J. Villere & Company, L.L.C.\n601 Poydras St, Suite 1808\nNew Orleans, LA 70130\nA ttention:\nGeorge Y oung\nFacsimile:\n(504) 599-4544\nEmail:\ngeorgey@villere.com\nWith a copy to (which shall not constitute notice):\nSkadden, Arps, Slate, Meagher & Flom LLP\nFour Times Square\nNew Y ork, NY 10036-6522\nA ttention:\nRichard J. Grossman\nPaul T. Schnell\nPhone:\n(212) 735-3000\nFacsimile:\n(212) 735-2000\nEmail:\nrichard.grossman@skadden.com\npaul.schnell@skadden.com\nWith a copy to (which shall not constitute notice):\nLiskow and Lewis\nOne Shell Square\n701 Poydras Street, Suite 500\nNew Orleans, LA 70139\nA ttention:\nJohn C. njier\nPhone:\n(504) 556-4177\nFacsimile:\n(504) 556-4108\nEmail:\njcanjier@liskow.com\n13. If at any time subsequent to the date hereof, any provision of this letter agreement shall be held by any court of competent\njurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of\nsuch provision shall have no effect upon the legality or enforceability of any other provision of this letter agreement.\n14. This letter agreement may be executed in two or more counterparts which together shall constitute a single agreement.\n15 This letter agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part, by\nyou without the express written consent of the Company. This letter agreement, however, shall be binding on successors of the parties\nhereto.\n17. This letter agreement shall expire upon the earlier of (i) two (2) years from the date that no Villere Designee serves as a director\nof\nthe Company and (ii) two (2) years from the date on which Villere last received any Confidential Information; except that you\nshall maintain in accordance with the confidentiality obligations set forth herein any Confidential Information constituting trade\nsecrets for such time as such information constitutes a trade secret of the Company as defined under 18 U.S.C. S 1839(3).\n[Signature Page Follows]\nPlease confirm your agreement with the foregoing by signing and returing one copy of this letter to the undersigned, whereupon this\nletter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nEPIQ SY STEMS, INC.\nBy:\nName:\nTitle:\nSignature Page to Confidentiality Agreement\nAccepted and agreed as of the date first written above:\nST. DENIS J. VILLERE & COMPANY, L.L.C.\nBy:\nName:\nTitle:\nSignature Page to Confidentiality Agreement	EXHIBIT “B”\nFORM OF CONFIDENTIALITY AGREEMENT\nEPIQ SYSTEMS, INC.\n501 Kansas Avenue\nKansas City, KS 66105-1103\n[\n]\nTo: St. Denis J. Villere & Company, L.L.C .\nLadies and Gentlemen:\nThis letter agreement shall become effective upon due execution by each of the parties hereto. Capitalized terms used but not\notherwise defined herein shall have the meanings given to such terms in the Director Appointment Agreement (the “Director\nAppointment Agreement”) dated as of the date hereof among Epiq Systems, Inc. (the “Company”), St. Denis J. Villere & Company,\nL.L.C. and the investment funds, accounts and other clients to which it provides investment advice (“Villere”) and [\n] (the\n“Villere Designee”). The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement,\napplicable fiduciary duties and except as otherwise instructed by the Company, the Villere Designee may, disclose information\nobtained while serving a member of the Board of Directors (the “Board”) of the Company to you and the Representatives (as\nhereinafter defined) and may discuss such information with any and all such persons. As a result, you may receive certain non-public\ninformation regarding the Company. You acknowledge and agree that this information is proprietary to the Company and may\ninclude trade secrets, strategic, business or financial planning information, financial results, financial projections and forecasts,\ndiscussions or deliberations of the Board or its committees as a whole or of individual members of the Board or its committees or\nmembers of senior management, advice received by the Board or its committees or members of management of the Company from\nattorneys, accountants, consultants, financial advisors and other advisors or other business information the disclosure of which could\nharm the Company or its shareholders. In consideration for, and as a condition of, non-public information being furnished to you and\nin consideration for the Company’s agreements and obligations in the Director Appointment Agreement and, subject to the\nrestrictions in paragraph 2, your attorneys, advisors, directors, members, officers and employees (collectively, “Representatives”) and\nyou agree to treat any and all information concerning the Company that is furnished to you or your Representatives (regardless of the\nmanner in which it is furnished, including without limitation in written or electronic format or orally, gathered by visual inspection or\notherwise) by the Villere Designee, or by or on behalf of the Company or any of the Company Representatives, together with any\nnotes, analyses, compilations, studies, interpretations, documents, records, extracts or other summaries thereof containing, referring,\nrelating to, based upon or derived from such information, in whole or in part (collectively, “Confidential Information”), in accordance\nwith the provisions of this letter agreement, and to take or abstain from taking the other actions hereinafter set forth.\n1. The term “Confidential Information” does not include information that (i) is or has become generally available to the public other\nthan as a result of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement or any obligation\nof confidentiality, (ii) was within your or any of your Representatives’ possession on a non-confidential basis prior to its being\nfurnished to you by the Villere Designee, or by or on behalf of the Company or (iii) is received from a source other than the Villere\nDesignee, the Company or any of its representatives; provided, that in the case of (iii) above, the source of such information was not\nbelieved to you, after inquiring of the disclosing person, to be bound by a confidentiality agreement with or other contractual, legal or\nfiduciary obligation of confidentiality to the Company with respect to such information at the time the same was disclosed.\n2. You and your Representatives will, and you will cause your Representatives to, (a) keep the Confidential Information strictly\nconfidential, (b) not disclose any of the Confidential Information in any manner whatsoever without the prior written consent of the\nCompany and (c) not use any of the Confidential Information except to the extent permitted by the Director Appointment Agreement;\nprovided, however, that you may disclose any of such information to your Representatives (i) who need to know such information for\nthe sole purpose of advising you and (ii) who are informed by you of the confidential nature of such information; provided, further,\nthat you will be responsible for any violation of this letter agreement by your Representatives as if they were parties hereto except\nthat you will not be so responsible with respect to any such Representative who has executed a copy of this letter agreement as an\nAdditional Signatory and delivered such signed copy to the Company. It is understood and agreed that the Villere Designee shall not\ndisclose to you or your Representatives any Legal Advice (as defined below) that may be included in the Confidential Information\nwith respect to which such disclosure would constitute waiver of the Company’s attorney client privilege; provided, however, that the\nVillere Designee may provide such disclosure if reputable outside legal counsel of national standing provides the Company with a\nwritten opinion that such disclosure will not waive the Company’s attorney client privilege with respect to such Legal Advice. “Legal\nAdvice” as used herein shall be solely and exclusively limited to the advice provided by legal counsel stating legal rights, duties,\nliabilities and defenses and shall not include factual information or the formulation or analysis of business strategy.\n3. In the event that you or any of your Representatives are required by applicable subpoena, legal process or other legal requirement\nto disclose any of the Confidential Information, you will promptly (and in any event, sufficiently in advance of any such disclosure to\nallow the Company a reasonable opportunity to respond) notify (except where such notice would be legally prohibited) the Company\nin writing by facsimile and certified mail which notification shall include a list detailing the specific Confidential Information you\nintend to disclose so that the Company may seek a protective order, other appropriate remedy or other actions to limit such disclosure\n(and if the Company seeks such an order, other remedy or other actions you will provide such cooperation as the Company shall\nreasonably request, at its cost and expense). Nothing herein shall be deemed to prevent you or your Representatives, as the case may\nbe, from honoring a subpoena, legal process or other legal requirement that seeks or requires discovery, disclosure or production of\nthe Confidential Information if (a) you produce or disclose only that portion of the Confidential Information which your outside legal\ncounsel of national standing advises you is legally required to be so produced or disclosed and you inform\nthe recipient of such Confidential Information of the existence of this letter agreement and the confidential nature of such\nConfidential Information; or (b) the Company consents in writing to having the Confidential Information produced or disclosed\npursuant to the subpoena, legal process or other legal requirement. In no event will you or any of your Representatives oppose action\nby the Company to obtain a protective order or other relief to prevent the disclosure of the Confidential Information or to obtain\nreliable assurance that confidential treatment will be afforded the Confidential Information. It is understood that there shall be no\n“legal requirement” requiring you to disclose any Confidential Information solely by virtue of the fact that, absent such disclosure,\nyou would be prohibited from purchasing, selling, or engaging in derivative transactions with respect to, the Common Stock of the\nCompany or otherwise proposing or making an offer to do any of the foregoing or making any offer, including any tender offer, or\nyou would be unable to file any proxy materials in compliance with Section 14(a) of the Exchange Act or the rules promulgated\nthereunder. Before filing any Schedule 13D or amendment thereto pursuant to Section 13(d) of the Exchange Act or the rules\npromulgated thereunder with the SEC or other governmental or regulatory body in which you intend to include Confidential\nInformation that you believe is legally required to be included in such a filing, you will submit such filing to the Company for review\nand will not include such Confidential Information in such filing if the Company provides you (not more than one business day\nfollowing your delivery of such filing to the Company), with a written opinion addressed to you of reputable outside legal counsel of\nnational standing, stating that the Confidential Information is not legally required to be included in such filing and stating that you\nmay rely upon such opinion.\n4. You acknowledge that (a) none of the Company or any of its representatives makes any representation or warranty, express or\nimplied, as to the accuracy or completeness of the Confidential Information, and (b) none of the Company or any of its\nrepresentatives shall have any liability to you or to any of your Representatives relating to or resulting from the use of the\nConfidential Information or any errors therein or omissions therefrom. You and your Representatives shall not directly or indirectly\ninitiate contact or communication with any executive or employee of the Company [other than [\n] (or any individuals\nsubstituted in the Company’s sole discretion)] concerning Confidential Information, or to seek any information in connection\ntherewith from any such person [other than [\n] (or substitute),] without the prior consent of the Company; provided, however,\nthe restriction in this sentence shall not in any way apply to the Villere Designee.\n5. All Confidential Information shall remain the property of the Company. Neither you nor any of your Representatives shall by\nvirtue of our disclosure of and/or your use of any Confidential Information acquire any rights with respect thereto, all of which rights\n(including all intellectual property rights) shall remain exclusively with the Company. Upon the request of the Company for any\nreason, you will promptly return to the Company all originals and hard copies of the Confidential Information and permanently erase\nor delete all electronic copies of the Confidential Information in your or any of your Representatives’ possession or control (and,\nupon the request of the Company, shall certify to the Company that such Confidential Information has been returned, erased or\ndeleted, as the case may be). Notwithstanding the foregoing, you and your Representatives (i) may retain a copy of the Confidential\nInformation in order to comply with applicable law, regulation or professional standards, or to comply with a bona fide document\nretention policy, and (ii) to the extent that\nConfidential Information is retained in standard archival or a computer back-up system in the ordinary course of business, such\nretained Confidential Information shall be destroyed only to the extent that it is reasonably practical to do so, provided, that, such\nretained Confidential Information shall remain subject to the terms of this letter agreement for so long as retained by you or your\nRepresentatives. Notwithstanding the return or destruction of Confidential Information, you, and your Representatives will continue\nto be bound by the confidentiality and other obligations set forth in this letter agreement.\n6. You acknowledge that the Confidential Information may constitute material non-public information under applicable federal and\nstate securities laws, and that you shall not trade or engage in any transaction involving the Company’s securities, on the basis of\nsuch information in violation of such laws.\n7. You hereby represent and warrant to the Company that (i) you have all requisite company power and authority to execute and\ndeliver this letter agreement and to perform your obligations hereunder, (ii) this letter agreement has been duly authorized, executed\nand delivered by you, and is a valid and binding obligation, enforceable against you in accordance with its terms, (iii) this Agreement\nwill not result in a violation of any terms or conditions of any agreements to which you are a party or by which you may otherwise be\nbound or of any law, rule, license, regulation, judgment, order or decree governing or affecting you, and (iv) your entry into this\nAgreement does not require approval by any owners or holders of any equity interest in you (except as has already been obtained).\n8. Any waiver by the Company of a breach of any provision of this letter agreement shall not operate as or be construed to be a\nwaiver of any other breach of such provision or of any breach of any other provision of this letter agreement. The failure of the\nCompany to insist upon strict adherence to any term of this letter agreement on one or more occasions shall not be considered a\nwaiver or deprive the Company of the right thereafter to insist upon strict adherence to that term or any other term of this letter\nagreement.\n9. You acknowledge and agree that the value of the Confidential Information to the Company is unique and substantial, but may be\nimpractical or difficult to assess in monetary terms. You further acknowledge and agree that in the event of an actual or threatened\nviolation of this letter agreement, immediate and irreparable harm or injury would be caused for which money damages would not be\nan adequate remedy. Accordingly, you acknowledge and agree that, in addition to any and all other remedies which may be available\nto the Company at law or equity, the Company shall be entitled to an injunction or injunctions to prevent breaches of this letter\nagreement and to enforce specifically the terms and provisions of this letter agreement exclusively in the Circuit Courts of Jackson\nCounty in the State of Missouri, or, if such court lacks subject matter jurisdiction, the United States District Court for the Western\nDistrict of Missouri (the “Chosen Courts”). In the event that any action shall be brought in equity to enforce the provisions of this\nletter agreement, you shall not allege, and you hereby waive the defense, that there is an adequate remedy at law.\n10. Each of the parties hereto (a) consents to submit itself to the personal jurisdiction of the Chosen Courts in the event any dispute\narises out of this letter agreement or the transactions contemplated by this letter agreement, (b) agrees that it shall not attempt to deny\nor defeat such personal jurisdiction by motion or other request for leave from any such court, (c) agrees that it shall not bring any\naction relating to this letter agreement or the transactions contemplated by this letter agreement in any court other than the Chosen\nCourts, and each of the parties irrevocably waives the right to trial by jury, (d) agrees to waive any bonding requirement under any\napplicable law, in the case any other party seeks to enforce the terms by way of equitable relief, and (e) each of the parties irrevocably\nconsents to service of process by a reputable overnight delivery service, signature requested, to the address of such parties’ principal\nplace of business or as otherwise provided by applicable law. THIS LETTER AGREEMENT SHALL BE GOVERNED IN ALL\nRESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF MISSOURI\nAPPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE WITHOUT\nGIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.\n11. This letter agreement and the Director Appointment Agreement contain the entire understanding of the parties with respect to the\nsubject matter hereof and thereof and this letter agreement may be amended only by an agreement in writing executed by the parties\nhereto.\n12. All notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in\nregard hereto shall be in writing and shall be deemed validly given, made or served, if (a) given by telecopy and email, when such\ntelecopy is transmitted to the telecopy number set forth below and sent to the email address set forth below and the appropriate\nconfirmation is received or (b) if given by any other means, when actually received during normal business hours at the address\nspecified in this subsection:\nIf to the Company:\nEpiq Systems, Inc.\n501 Kansas Avenue\nKansas City, KS 66105-1103\nAttention:\nGeneral Counsel\nFacsimile:\n(913) 321-1243\nEmail:\njrothman@epiqsystems.com\nWith a copy to (which shall not constitute notice):\nKirkland & Ellis LLP\n300 North LaSalle\nChicago, IL 60654\nAttention:\nRichard W. Porter, P.C .\nRobert M. Hayward, P.C .\nPhone:\n(312) 862-2000\nFacsimile:\n(312) 862-2200\nEmail:\nRichard.Porter@kirkland.com\nRobert.Hayward@kirkland.com\nIf to Villere:\nSt. Denis J. Villere & Company, L.L .C .\n601 Poydras St, Suite 1808\nNew Orleans, LA 70130\nAttention:\nGeorge Young\nFacsimile:\n(504) 599-4544\nEmail:\ngeorgey@villere.com\nWith a copy to (which shall not constitute notice):\nSkadden, Arps, Slate, Meagher & Flom LLP\nFour Times Square\nNew York, NY 10036-6522\nAttention:\nRichard J. Grossman\nPaul T. Schnell\nPhone:\n(212) 735-3000\nFacsimile:\n(212) 735-2000\nEmail:\nrichard.grossman@skadden.com\npaul.schnell@skadden.com\nWith a copy to (which shall not constitute notice):\nLiskow and Lewis\nOne Shell Square\n701 Poydras Street, Suite 500\nNew Orleans, LA 70139\nAttention:\nJohn C. Anjier\nPhone:\n(504) 556-4177\nFacsimile:\n(504) 556-4108\nEmail:\njcanjier@liskow.com\n13. If at any time subsequent to the date hereof, any provision of this letter agreement shall be held by any court of competent\njurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of\nsuch provision shall have no effect upon the legality or enforceability of any other provision of this letter agreement.\n14. This letter agreement may be executed in two or more counterparts which together shall constitute a single agreement.\n15. This letter agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part, by\nyou without the express written consent of the Company. This letter agreement, however, shall be binding on successors of the parties\nhereto.\n17. This letter agreement shall expire upon the earlier of (i) two (2) years from the date that no Villere Designee serves as a director\nof the Company and (ii) two (2) years from the date on which Villere last received any Confidential Information; except that you\nshall maintain in accordance with the confidentiality obligations set forth herein any Confidential Information constituting trade\nsecrets for such time as such information constitutes a trade secret of the Company as defined under 18 U.S.C. § 1839(3).\n[Signature Page Follows]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this\nletter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nEPIQ SYSTEMS, INC.\nBy:\nName:\nTitle:\nSignature Page to Confidentiality Agreement\nAccepted and agreed as of the date first written above:\nST. DENIS J. VILLERE & COMPANY, L.L .C .\nBy:\nName:\nTitle:\nSignature Page to Confidentiality Agreement
+36956818d96973656d2306e17a8b6013.pdf	effective_date jurisdiction party term	EX-99.(E).(3) 3 dex99e3.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (e)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis is a Mutual Non-Disclosure Agreement (this “Agreement”), effective as of the date stated below (the “Effective Date”), between\nTechnology Research Corporation, a Florida corporation (the “Company”), and Coleman Cable, Inc., a Delaware corporation (the “Counterparty”).\nBackground\nThe Parties are considering a potential business transaction (the “Opportunity”), and are entering into this Agreement so that they can share\nconfidential information pertinent to the Opportunity with confidence that the other Party will use such confidential information only to evaluate the\nOpportunity and will not disclose that confidential information, except in accordance with the terms of this Agreement. The Counterparty and the\nCompany are sometimes referred to individually as a “Party” and collectively as the “Parties.”\nOperative Terms\nThe Parties agree as follows:\n1. These terms have the following definitions in this Agreement:\n“Confidential Information” means all information concerning or related to the business, operations, results of operations, assets and affairs of a\nDisclosing Party, including, but not limited to, financial and accounting information, budgets, projections, forecasts, business plans, operating\nmethods, business strategies, product and service information, product plans, product specifications, product designs, processes, plans, drawings,\nconcepts, research and development data and materials, systems, techniques, trade secrets, intellectual property, software programs and works of\nauthorship, know-how, marketing and distribution plans, planning data, marketing strategies, price lists, market studies, employee lists, supplier lists,\ncustomer and prospect lists, and supplier and other customer information and data that the Disclosing Party or its Representatives discloses (or has,\nprior to the date of this Agreement, disclosed) to the Recipient or its Representatives in connection with the Opportunity, however documented or\ndisclosed, together with any copies, extracts, analyses, compilations, studies or other documents prepared or received by the Recipient or its\nRepresentatives, which contain or otherwise reflect such information.\n“Disclosing Party” means the Party furnishing Confidential Information.\n“Opportunity” has the meaning set forth in the Background.\n“Recipient” means the Party receiving Confidential Information.\n“Representatives” means the officers, directors, employees, partners, members, managers, agents, advisors, subsidiaries, affiliates or\nrepresentatives of a Party.\n2. Each Party in its capacity as a Recipient agrees to use the Confidential Information provided by the other Party solely for the purpose of\nevaluating the Opportunity, and\nfor no other purpose, and further agrees to keep confidential and not disclose to any third party any Confidential Information. Notwithstanding the\nforegoing, each Party may disclose such Confidential Information solely to those of its Representatives who (a) require such material for the purpose\nof evaluating the Opportunity on behalf of such Party, and (b) are informed by such Party of the confidential nature of the Confidential Information\nand the obligations of this Agreement and agree to abide by the terms hereof as if they were a Recipient hereunder. Each Party shall take all actions\nnecessary to cause its Representatives and affiliates who receive Confidential Information to comply with the terms of this Agreement as if they\nwere a Recipient. Each Party shall be responsible for any disclosure of Confidential Information by its Representatives other than in accordance with\nthe terms of this Agreement. Each Party acknowledges the confidential and proprietary nature of the Confidential Information provided by the other\nParty and acknowledges and agrees that it is acquiring no rights whatsoever in or to such Confidential Information. For avoidance of doubt, if the\nParties do not consummate a transaction with respect to the Opportunity and terminate discussions, neither Party nor its Representatives may use the\nConfidential Information of the other Party for any purpose whatsoever. Further, for avoidance of doubt, the Parties acknowledge that they may\nconduct competing businesses and nothing in this Agreement shall restrict or prohibit either Party from continuing to conduct its business and to\ncompete with the other Party so long as such action does not violate the terms of this Agreement. The Counterparty acknowledges that the\nConfidential Information that may be disclosed by the Company or its Representatives may contain material, non-public information. The\nCounterparty acknowledges and understands that federal securities law may restrict the Counterparty from pledging, selling, hedging, contracting to\nsell, short-selling, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option, right, or warrant to\npurchase or otherwise hypothecating transferring for value, directly or indirectly, any securities of the Company while in possession of material non-\npublic information regarding the Company.\n3. Neither the Counterparty nor any current or future affiliate of the Counterparty, for a period ending on the earlier of (A) the date on which\nthe Parties enter into a definitive agreement with respect to the Opportunity and (B) one year from the date of this Agreement (the “Standstill\nTerm”), shall in any manner, directly or indirectly, without the prior written approval of the Company’s Board of Directors: (a) effect or participate in\nor in any way assist, facilitate, encourage or form, join or in any way participate in a “group” (as defined under the rules and regulations of the\nSecurities and Exchange Commission) with any other person to effect or seek, offer or propose to effect or participate in (i) any acquisition of any\nvoting securities (or beneficial ownership thereof), or rights or options to acquire any voting securities (or beneficial ownership thereof), or any\nassets or businesses of the Company, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its\nsubsidiaries or affiliates or the assets of the Company or its subsidiaries or affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution\nor other extraordinary transaction with respect to the Company or any of its subsidiaries or affiliates or (iv) any “solicitation” of “proxies” (as these\nterms are used in the rules and regulations of the Securities and Exchange Commission) or consents to vote any voting securities of the Company or\nany of its affiliates; or (b) authorize any of their respective Representatives to, in any manner, directly or indirectly, take any of the actions set forth\nin (a) above. During the Standstill Term, the Counterparty shall use its best efforts to cause its and its current and future affiliates’ Representatives to\nnot take, in any\nmanner, directly or indirectly, without the prior written approval of the Company’s Board of Directors, any of the actions set forth in (a) above.\nNothing in this Section 3 shall prohibit the Counterparty from making, at any time during the Standstill Term, confidential proposals to the\nCompany’s management or board of directors relating to any of the matters set forth in clause (a) above. Notwithstanding anything to the contrary\ncontained in this Agreement, if, at any time during the Standstill Term, (i) any Person (other than the Counterparty) or group of Persons\n(A) commences, or announces an intention to commence, a tender or exchange offer for at least 51% of any class of the Company’s securities,\n(B) commences, or announces an intention to commence, a proxy contest or a solicitation of consents with respect to the election of any director or\ndirectors of the Company, (C) acquires beneficial ownership of at least 15% of any class of the Company’s securities or (D) enters into, or announces\nan intention to enter into, an agreement with the Company contemplating the acquisition (by way of merger, tender offer or otherwise) of at least\n15% of any class of the Company’s securities or all or a substantial portion of the assets of the Company or any of the Company’s subsidiaries,\n(ii) the Company commences negotiations with any Person (other than the Counterparty) or group of Persons with respect to any transaction of the\ntype referred to in clause (i) above without entering into with such Person or group of Persons a mutual non-disclosure agreement having provisions\nno less restrictive than those set forth in this Agreement (and the Company shall promptly disclose such agreement to the Counterparty) or (iii) the\nCompany releases any Person from restrictions similar to those set forth in this Section 3, then (in any of such cases) the restrictions set forth in this\nSection 3 shall immediately terminate and cease to be of any further force or effect.\n4. Confidential Information does not include information that the Recipient demonstrates (a) is in the public domain through no fault of, or\ndisclosure by, the Recipient or its Representatives, subsidiaries or affiliates, (b) was properly known to the Recipient, without restriction, prior to\ndisclosure by the Disclosing Party, (c) was properly disclosed to the Recipient by another person, but only if such person is not bound by a\nconfidentiality agreement with the Disclosing Party or is not otherwise restricted from providing such information by a contractual, legal or fiduciary\nduty. Additionally, notwithstanding any other provision of this Agreement, if the Recipient or any Representative of the Recipient is, at any time,\nlegally compelled to disclose any Confidential Information, the Recipient will provide the Disclosing Party with prompt notice thereof so that the\nDisclosing Party may seek an appropriate protective order or other appropriate relief, or waive compliance with the provisions of this Agreement. In\nthe absence of a protective order or a waiver from the Disclosing Party, the Recipient or its Representative may comply with such legal requirement\nby disclosing only such Confidential Information as is legally required.\n5. Each Party acknowledges and agrees that neither Party nor any of its Representatives makes any representation or warranty (express or\nimplied) as to the accuracy or completeness of the Confidential Information, except for those express representations and warranties that may be\nmade and set forth in a definitive agreement regarding the Opportunity, if any, that is entered into between the Parties.\n6. If either Party decides not to proceed with the Opportunity, the Parties will promptly return or destroy all Confidential Information received\nunder this Agreement, and all\ncopies, extracts and other objects or items in which such Confidential Information may be contained or embodied, and certify in writing that it has\ncomplied with this requirement.\n7. Without the prior consent of the other Party, neither Party nor its Representatives will initiate contact with any employee of the other Party\nwith respect to the Opportunity. Each Party agrees that, for a period of one year from the Effective Date of this Agreement, such Party will not, and\nwill not permit any controlled Representative to whom it has provided any Confidential Information to, directly or indirectly, solicit for employment\nor hire any employee of the other Party with whom such Party has had contact or who became known to such Party in connection with consideration\nof the Opportunity; provided that the foregoing shall not prohibit general employment advertisements and other similar employment solicitations that\nare not targeted at employees of the other Party.\n8. Each Party will promptly notify the other Party upon discovery of any unauthorized use or disclosure of the Confidential Information, or any\nother breach of this Agreement by such Party or any of its Representatives, and will cooperate with the other Party to help the other Party regain\npossession of the Confidential Information and prevent its unauthorized use or further disclosure.\n9. Each Party acknowledges and agrees that this Agreement does not obligate the other Party to disclose any information, including any\nConfidential Information, negotiate, or enter into any agreement or relationship with the other Party, or accept any offer from the other Party. Each\nParty further acknowledges and agrees that (a) the other Party and its Representatives shall be free to conduct any process for any transaction\ninvolving the Opportunity, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested\nparties and entering into a definitive agreement therewith without prior notice to the other Party or any other person), (b) any procedures relating to\nsuch process or transaction may be changed at any time without notice to the other Party or any other person, and (c) unless a definitive agreement is\nentered into among the Parties, neither Party shall have any claims whatsoever with respect to the Opportunity against the other Party or any third\nperson with whom a transaction is entered into by the other Party. The Counterparty acknowledges that the Company may disclose that it is\nexploring strategic alternatives. Nothing in this Agreement shall be deemed to prohibit a Party from: (a) making a public announcement regarding\nthe discussions (or the termination of such discussions) between the parties regarding the Opportunity, provided, however, that, to the extent\npracticable, a Party that intends to make such a public announcement shall discuss any such proposed announcement with the other Party prior to\nmaking such announcement; or (b) making any public announcement that may be required by applicable law, fiduciary duties or obligations pursuant\nto any listing agreement with a national securities exchange. The Parties acknowledge that any disclosures made by them before the Effective Date\nare not subject to the restrictions in this Agreement.\n10. The terms of this Agreement will remain in effect with respect to any particular Confidential Information for a period of two years\nfollowing the termination of discussion between the Parties. This Agreement shall terminate automatically if the Company has not given to the\nCounterparty any Confidential Information within ten days of the Effective Date of this Agreement.\n11. Each Party acknowledges and agrees that any breach of this Agreement would cause irreparable harm to the other Party for which damages\nare not an adequate remedy, and that the other Party shall therefore be entitled (without the posting of a bond or other security) to equitable relief in\naddition to all other remedies available at law.\n12. This Agreement is governed by the internal laws of the State of Delaware and may be modified or waived only in writing signed by the\nParty against which such modification or waiver is sought to be enforced. The Parties irrevocably and unconditionally consent to submit to the\nexclusive jurisdiction of the courts of the State of Delaware in New Castle County, Delaware, for any actions, suits or proceedings arising out of or\nrelating to this Agreement (and the Parties agree not to commence any action, suit or proceeding relating thereto, except in such courts), and further\nagree that service of any process, summons, notice or document by U.S . registered mail to the other Party’s address set forth next to their signature\nhereto shall be effective service of process for any action, suit or proceeding brought in any such court. The Parties irrevocably and unconditionally\nwaive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement, in the courts of the State of Delaware or\nthe United States of America located in New Castle County, Delaware, and hereby further irrevocably and unconditionally waive and agree not to\nplead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n13. Neither the failure nor delay by any Party in exercising any right hereunder will operate as a waiver of such right, and no single or partial\nexercise of a right will preclude any other or further exercise of such right. The term “person” means any individual, corporation, partnership, limited\nliability company, joint venture, estate, trust, association, organization, or other entity or governmental body. If any provision of this Agreement is\nfound to be unenforceable, such provision will be limited or deleted to the minimum extent necessary so that the remaining terms remain in full force\nand effect. The prevailing Party or Parties in any dispute or legal action regarding the subject matter of this Agreement (as finally determined by a\ncourt of competent jurisdiction) shall be entitled to recover attorneys’ fees and costs.\n14. This Agreement may be executed and delivered by facsimile or .pdf signature and in two or more counterparts, each of which shall be\ndeemed an original, but all of which together shall constitute one and the same instrument.\n[Counterpart Signatures Follow]\nAccepted and Agreed as of Feb. 8, 2011 by:\n“Counterparty”\nCOLEMAN CABLE, INC.\nBy: /s/ G. Yetman\nName: Gary Yetman\nTitle: President and CEO\nCounterparty’s Address:\n1530 Shields Drive\nWaukegan, Illinois 60085\nAttention: G. Gary Yetman, President and Chief Executive Officer\n“Company”\nTECHNOLOGY RESEARCH CORPORATION\nBy: /s/ Robert D. Woltil\nName: Robert D. Woltil\nTitle: VP Finance, CFO and Secretary\nCompany’s Address:\n5250 140th Avenue North\nClearwater, Florida 33760\nAttention: Owen Farren, President and Chief Executive Officer	EX-99.(E).(3) 3 dex99e3.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (e)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis is a Mutual Non-Disclosure Agreement (this “Agreement”), effective as of the date stated below (the “Effective Date”), between\nTechnology Research Corporation, a Florida corporation (the “Company”), and Coleman Cable, Inc., a Delaware corporation (the “Counterparty”).\nBackground\nThe Parties are considering a potential business transaction (the “Opportunity”), and are entering into this Agreement so that they can share\nconfidential information pertinent to the Opportunity with confidence that the other Party will use such confidential information only to evaluate the\nOpportunity and will not disclose that confidential information, except in accordance with the terms of this Agreement. The Counterparty and the\nCompany are sometimes referred to individually as a “Party” and collectively as the “Parties.”\nOperative Terms\nThe Parties agree as follows:\n1. These terms have the following definitions in this Agreement:\n“Confidential Information” means all information concerning or related to the business, operations, results of operations, assets and affairs of a\nDisclosing Party, including, but not limited to, financial and accounting information, budgets, projections, forecasts, business plans, operating\nmethods, business strategies, product and service information, product plans, product specifications, product designs, processes, plans, drawings,\nconcepts, research and development data and materials, systems, techniques, trade secrets, intellectual property, software programs and works of\nauthorship, know-how, marketing and distribution plans, planning data, marketing strategies, price lists, market studies, employee lists, supplier lists,\ncustomer and prospect lists, and supplier and other customer information and data that the Disclosing Party or its Representatives discloses (or has,\nprior to the date of this Agreement, disclosed) to the Recipient or its Representatives in connection with the Opportunity, however documented or\ndisclosed, together with any copies, extracts, analyses, compilations, studies or other documents prepared or received by the Recipient or its\nRepresentatives, which contain or otherwise reflect such information.\n“Disclosing Party” means the Party furnishing Confidential Information.\n“Opportunity” has the meaning set forth in the Background.\n“Recipient” means the Party receiving Confidential Information.\n“Representatives” means the officers, directors, employees, partners, members, managers, agents, advisors, subsidiaries, affiliates or\nrepresentatives of a Party.\n2. Each Party in its capacity as a Recipient agrees to use the Confidential Information provided by the other Party solely for the purpose of\nevaluating the Opportunity, and\nfor no other purpose, and further agrees to keep confidential and not disclose to any third party any Confidential Information. Notwithstanding the\nforegoing, each Party may disclose such Confidential Information solely to those of its Representatives who (a) require such material for the purpose\nof evaluating the Opportunity on behalf of such Party, and (b) are informed by such Party of the confidential nature of the Confidential Information\nand the obligations of this Agreement and agree to abide by the terms hereof as if they were a Recipient hereunder. Each Party shall take all actions\nnecessary to cause its Representatives and affiliates who receive Confidential Information to comply with the terms of this Agreement as if they\nwere a Recipient. Each Party shall be responsible for any disclosure of Confidential Information by its Representatives other than in accordance with\nthe terms of this Agreement. Each Party acknowledges the confidential and proprietary nature of the Confidential Information provided by the other\nParty and acknowledges and agrees that it is acquiring no rights whatsoever in or to such Confidential Information. For avoidance of doubt, if the\nParties do not consummate a transaction with respect to the Opportunity and terminate discussions, neither Party nor its Representatives may use the\nConfidential Information of the other Party for any purpose whatsoever. Further, for avoidance of doubt, the Parties acknowledge that they may\nconduct competing businesses and nothing in this Agreement shall restrict or prohibit either Party from continuing to conduct its business and to\ncompete with the other Party so long as such action does not violate the terms of this Agreement. The Counterparty acknowledges that the\nConfidential Information that may be disclosed by the Company or its Representatives may contain material, non-public information. The\nCounterparty acknowledges and understands that federal securities law may restrict the Counterparty from pledging, selling, hedging, contracting to\nsell, short-selling, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option, right, or warrant to\npurchase or otherwise hypothecating transferring for value, directly or indirectly, any securities of the Company while in possession of material non-\npublic information regarding the Company.\n3. Neither the Counterparty nor any current or future affiliate of the Counterparty, for a period ending on the earlier of (A) the date on which\nthe Parties enter into a definitive agreement with respect to the Opportunity and (B) one year from the date of this Agreement (the “Standstill\nTerm”), shall in any manner, directly or indirectly, without the prior written approval of the Company’s Board of Directors: (a) effect or participate in\nor in any way assist, facilitate, encourage or form, join or in any way participate in a “group” (as defined under the rules and regulations of the\nSecurities and Exchange Commission) with any other person to effect or seek, offer or propose to effect or participate in (i) any acquisition of any\nvoting securities (or beneficial ownership thereof), or rights or options to acquire any voting securities (or beneficial ownership thereof), or any\nassets or businesses of the Company, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its\nsubsidiaries or affiliates or the assets of the Company or its subsidiaries or affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution\nor other extraordinary transaction with respect to the Company or any of its subsidiaries or affiliates or (iv) any “solicitation” of “proxies” (as these\nterms are used in the rules and regulations of the Securities and Exchange Commission) or consents to vote any voting securities of the Company or\nany of its affiliates; or (b) authorize any of their respective Representatives to, in any manner, directly or indirectly, take any of the actions set forth\nin (a) above. During the Standstill Term, the Counterparty shall use its best efforts to cause its and its current and future affiliates’ Representatives to\nnot take, in any\nmanner, directly or indirectly, without the prior written approval of the Company’s Board of Directors, any of the actions set forth in (a) above.\nNothing in this Section 3 shall prohibit the Counterparty from making, at any time during the Standstill Term, confidential proposals to the\nCompany’s management or board of directors relating to any of the matters set forth in clause (a) above. Notwithstanding anything to the contrary\ncontained in this Agreement, if, at any time during the Standstill Term, (i) any Person (other than the Counterparty) or group of Persons\n(A) commences, or announces an intention to commence, a tender or exchange offer for at least 51% of any class of the Company’s securities,\n(B) commences, or announces an intention to commence, a proxy contest or a solicitation of consents with respect to the election of any director or\ndirectors of the Company, (C) acquires beneficial ownership of at least 15% of any class of the Company’s securities or (D) enters into, or announces\nan intention to enter into, an agreement with the Company contemplating the acquisition (by way of merger, tender offer or otherwise) of at least\n15% of any class of the Company’s securities or all or a substantial portion of the assets of the Company or any of the Company’s subsidiaries,\n(ii) the Company commences negotiations with any Person (other than the Counterparty) or group of Persons with respect to any transaction of the\ntype referred to in clause (i) above without entering into with such Person or group of Persons a mutual non-disclosure agreement having provisions\nno less restrictive than those set forth in this Agreement (and the Company shall promptly disclose such agreement to the Counterparty) or (iii) the\nCompany releases any Person from restrictions similar to those set forth in this Section 3, then (in any of such cases) the restrictions set forth in this\nSection 3 shall immediately terminate and cease to be of any further force or effect.\n4. Confidential Information does not include information that the Recipient demonstrates (a) is in the public domain through no fault of, or\ndisclosure by, the Recipient or its Representatives, subsidiaries or affiliates, (b) was properly known to the Recipient, without restriction, prior to\ndisclosure by the Disclosing Party, (c) was properly disclosed to the Recipient by another person, but only if such person is not bound by a\nconfidentiality agreement with the Disclosing Party or is not otherwise restricted from providing such information by a contractual, legal or fiduciary\nduty. Additionally, notwithstanding any other provision of this Agreement, if the Recipient or any Representative of the Recipient is, at any time,\nlegally compelled to disclose any Confidential Information, the Recipient will provide the Disclosing Party with prompt notice thereof so that the\nDisclosing Party may seek an appropriate protective order or other appropriate relief, or waive compliance with the provisions of this Agreement. In\nthe absence of a protective order or a waiver from the Disclosing Party, the Recipient or its Representative may comply with such legal requirement\nby disclosing only such Confidential Information as is legally required.\n5. Each Party acknowledges and agrees that neither Party nor any of its Representatives makes any representation or warranty (express or\nimplied) as to the accuracy or completeness of the Confidential Information, except for those express representations and warranties that may be\nmade and set forth in a definitive agreement regarding the Opportunity, if any, that is entered into between the Parties.\n6. If either Party decides not to proceed with the Opportunity, the Parties will promptly return or destroy all Confidential Information received\nunder this Agreement, and all\ncopies, extracts and other objects or items in which such Confidential Information may be contained or embodied, and certify in writing that it has\ncomplied with this requirement.\n7. Without the prior consent of the other Party, neither Party nor its Representatives will initiate contact with any employee of the other Party\nwith respect to the Opportunity. Each Party agrees that, for a period of one year from the Effective Date of this Agreement, such Party will not, and\nwill not permit any controlled Representative to whom it has provided any Confidential Information to, directly or indirectly, solicit for employment\nor hire any employee of the other Party with whom such Party has had contact or who became known to such Party in connection with consideration\nof the Opportunity; provided that the foregoing shall not prohibit general employment advertisements and other similar employment solicitations that\nare not targeted at employees of the other Party.\n8. Each Party will promptly notify the other Party upon discovery of any unauthorized use or disclosure of the Confidential Information, or any\nother breach of this Agreement by such Party or any of its Representatives, and will cooperate with the other Party to help the other Party regain\npossession of the Confidential Information and prevent its unauthorized use or further disclosure.\n9. Each Party acknowledges and agrees that this Agreement does not obligate the other Party to disclose any information, including any\nConfidential Information, negotiate, or enter into any agreement or relationship with the other Party, or accept any offer from the other Party. Each\nParty further acknowledges and agrees that (a) the other Party and its Representatives shall be free to conduct any process for any transaction\ninvolving the Opportunity, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested\nparties and entering into a definitive agreement therewith without prior notice to the other Party or any other person), (b) any procedures relating to\nsuch process or transaction may be changed at any time without notice to the other Party or any other person, and (c) unless a definitive agreement is\nentered into among the Parties, neither Party shall have any claims whatsoever with respect to the Opportunity against the other Party or any third\nperson with whom a transaction is entered into by the other Party. The Counterparty acknowledges that the Company may disclose that it is\nexploring strategic alternatives. Nothing in this Agreement shall be deemed to prohibit a Party from: (a) making a public announcement regarding\nthe discussions (or the termination of such discussions) between the parties regarding the Opportunity, provided, however, that, to the extent\npracticable, a Party that intends to make such a public announcement shall discuss any such proposed announcement with the other Party prior to\nmaking such announcement; or (b) making any public announcement that may be required by applicable law, fiduciary duties or obligations pursuant\nto any listing agreement with a national securities exchange. The Parties acknowledge that any disclosures made by them before the Effective Date\nare not subject to the restrictions in this Agreement.\n \n10. The terms of this Agreement will remain in effect with respect to any particular Confidential Information for a period of two years\nfollowing the termination of discussion between the Parties. This Agreement shall terminate automatically if the Company has not given to the\nCounterparty any Confidential Information within ten days of the Effective Date of this Agreement.\n11. Each Party acknowledges and agrees that any breach of this Agreement would cause irreparable harm to the other Party for which damages\nare not an adequate remedy, and that the other Party shall therefore be entitled (without the posting of a bond or other security) to equitable relief in\naddition to all other remedies available at law.\n12. This Agreement is governed by the internal laws of the State of Delaware and may be modified or waived only in writing signed by the\nParty against which such modification or waiver is sought to be enforced. The Parties irrevocably and unconditionally consent to submit to the\nexclusive jurisdiction of the courts of the State of Delaware in New Castle County, Delaware, for any actions, suits or proceedings arising out of or\nrelating to this Agreement (and the Parties agree not to commence any action, suit or proceeding relating thereto, except in such courts), and further\nagree that service of any process, summons, notice or document by U.S. registered mail to the other Party’s address set forth next to their signature\nhereto shall be effective service of process for any action, suit or proceeding brought in any such court. The Parties irrevocably and unconditionally\nwaive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement, in the courts of the State of Delaware or\nthe United States of America located in New Castle County, Delaware, and hereby further irrevocably and unconditionally waive and agree not to\nplead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n13. Neither the failure nor delay by any Party in exercising any right hereunder will operate as a waiver of such right, and no single or partial\nexercise of a right will preclude any other or further exercise of such right. The term “person” means any individual, corporation, partnership, limited\nliability company, joint venture, estate, trust, association, organization, or other entity or governmental body. If any provision of this Agreement is\nfound to be unenforceable, such provision will be limited or deleted to the minimum extent necessary so that the remaining terms remain in full force\nand effect. The prevailing Party or Parties in any dispute or legal action regarding the subject matter of this Agreement (as finally determined by a\ncourt of competent jurisdiction) shall be entitled to recover attorneys’ fees and costs.\n \n14. This Agreement may be executed and delivered by facsimile or .pdf signature and in two or more counterparts, each of which shall be\ndeemed an original, but all of which together shall constitute one and the same instrument.\n[Counterpart Signatures Follow]\nAccepted and Agreed as of Feb. 8, 2011 by:\n“Counterparty”\nCOLEMAN CABLE, INC.\nBy: /s/ G. Yetman\nName: Gary Yetman\nTitle:  President and CEO\nCounterparty’s Address:\n1530 Shields Drive\nWaukegan, Illinois 60085\nAttention: G. Gary Yetman, President and Chief Executive Officer\n“Company”\nTECHNOLOGY RESEARCH CORPORATION\nBy: /s/ Robert D. Woltil\nName: Robert D. Woltil\nTitle: VP Finance, CFO and Secretary\nCompany’s Address:\n5250 140th Avenue North\nClearwater, Florida 33760\nAttention: Owen Farren, President and Chief Executive Officer	EX-99.(E).(3) 3 dex99e3.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (e)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis is a Mutual Non-Disclosure Agreement (this "Agreement"), effective as of the date stated below (the "Effective Date"), between\nTechnology Research Corporation, a Florida corporation (the "Company."), and Coleman Cable, Inc., a Delaware corporation (the "Counterparty.").\nBackground\nThe Parties are considering a potential business transaction (the "Opportunity."), and are entering into this Agreement so that they can share\nconfidential information pertinent to the Opportunity with confidence that the other Party will use such confidential information only to evaluate the\nOpportunity and will not disclose that confidential information, except in accordance with the terms of this Agreement. The Counterparty and the\nCompany are sometimes referred to individually as a "Party." and collectively as the "Parties."\nOperative Terms\nThe Parties agree as follows:\n1. These terms have the following definitions in this Agreement:\n"Confidential Information" means all information concerning or related to the business, operations, results of operations, assets and affairs of a\nDisclosing Party, including, but not limited to, financial and accounting information, budgets, projections, forecasts, business plans, operating\nmethods, business strategies, product and service information, product plans, product specifications, product designs, processes, plans, drawings,\nconcepts, research and development data and materials, systems, techniques, trade secrets, intellectual property, software programs and works of\nauthorship, know-how, marketing and distribution plans, planning data, marketing strategies, price lists, market studies, employee lists, supplier lists,\ncustomer and prospect lists, and supplier and other customer information and data that the Disclosing Party or its Representatives discloses (or has,\nprior to the date of this Agreement, disclosed) to the Recipient or its Representatives in connection with the Opportunity, however documented or\ndisclosed, together with any copies, extracts, analyses, compilations, studies or other documents prepared or received by the Recipient or its\nRepresentatives, which contain or otherwise reflect such information.\n"Disclosing Party." means the Party furnishing Confidential Information.\n"Opportunity." has the meaning set forth in the Background.\n"Recipient" means the Party receiving Confidential Information.\n"Representatives" means the officers, directors, employees, partners, members, managers, agents, advisors, subsidiaries, affiliates or\nrepresentatives of a Party.\n2. Each Party in its capacity as a Recipient agrees to use the Confidential Information provided by the other Party solely for the purpose of\nevaluating the Opportunity, and\nfor no other purpose, and further agrees to keep confidential and not disclose to any third party any Confidential Information. Notwithstanding the\nforegoing, each Party may disclose such Confidential Information solely to those of its Representatives who (a) require such material for the purpose\nof evaluating the Opportunity on behalf of such Party, and (b) are informed by such Party of the confidential nature of the Confidential Information\nand the obligations of this Agreement and agree to abide by the terms hereof as if they were a Recipient hereunder. Each Party shall take all actions\nnecessary to cause its Representatives and affiliates who receive Confidential Information to comply with the terms of this Agreement as if they\nwere a Recipient. Each Party shall be responsible for any disclosure of Confidential Information by its Representatives other than in accordance with\nthe terms of this Agreement. Each Party acknowledges the confidential and proprietary nature of the Confidential Information provided by the other\nParty and acknowledges and agrees that it is acquiring no rights whatsoever in or to such Confidential Information. For avoidance of doubt, if the\nParties do not consummate a transaction with respect to the Opportunity and terminate discussions, neither Party nor its Representatives may use\nthe\nConfidential Information of the other Party for any purpose whatsoever. Further, for avoidance of doubt, the Parties acknowledge that they may\nconduct competing businesses and nothing in this Agreement shall restrict or prohibit either Party from continuing to conduct its business and\nto\ncompete with the other Party so long as such action does not violate the terms of this Agreement. The Counterparty acknowledges that the\nConfidential Information that may be disclosed by the Company or its Representatives may contain material, non-public information. The\nCounterparty acknowledges and understands that federal securities law may restrict the Counterparty from pledging, selling, hedging, contracting to\nsell, short-selling, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option, right, or warrant to\npurchase or otherwise hypothecating transferring for value, directly or indirectly, any securities of the Company while in possession of material non-\npublic information regarding the Company.\n3. Neither the Counterparty nor any current or future affiliate of the Counterparty, for a period ending on the earlier of (A) the date on which\nthe Parties enter into a definitive agreement with respect to the Opportunity and (B) one year from the date of this Agreement (the "Standstill\nTerm"), shall in any manner, directly or indirectly, without the prior written approval of the Company's Board of Directors: (a) effect or participate in\nor in any way assist, facilitate, encourage or form, join or in any way participate in a "group" (as defined under the rules and regulations of the\nSecurities\nand Exchange Commission) with any other person to effect or seek, offer or propose to effect or participate in (i) any acquisition\nof\nany\nvoting securities (or beneficial ownership thereof), or rights or options to acquire any voting securities (or beneficial ownership thereof), or any\nassets or businesses of the Company, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its\nsubsidiaries or affiliates or the assets of the Company or its subsidiaries or affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution\nor other extraordinary transaction with respect to the Company or any of its subsidiaries or affiliates or (iv) any "solicitation" of "proxies" (as these\nterms are used in the rules and regulations of the Securities and Exchange Commission) or consents to vote any voting securities of the Company\nor\nany\nof its affiliates; or (b) authorize any of their respective Representatives to, in any manner, directly or indirectly, take any of the actions set forth\nin (a) above. During the Standstill Term, the Counterparty shall use its best efforts to cause its and its current and future affiliates' Representatives to\nnot take, in any\nmanner, directly or indirectly, without the prior written approval of the Company's Board of Directors, any of the actions set forth in (a) above.\nNothing in this Section 3 shall prohibit the Counterparty from making, at any time during the Standstill Term, confidential proposals to the\nCompany's management or board of directors relating to any of the matters set forth in clause (a) above. Notwithstanding anything to the contrary\ncontained in this Agreement, if, at any time during the Standstill Term, (i) any Person (other than the Counterparty) or group of Persons\n(A) commences, or announces an intention to commence, a tender or exchange offer for at least 51% of any class of the Company's securities,\n(B) commences, or announces an intention to commence, a proxy contest or a solicitation of consents with respect to the election of any director or\ndirectors of the Company, (C) acquires beneficial ownership of at least 15% of any class of the Company's securities or (D) enters into, or announces\nan intention to enter into, an agreement with the Company contemplating the acquisition (by way of merger, tender offer or otherwise) of at least\n15% of any class of the Company's securities or all or a substantial portion of the assets of the Company or any of the Company's subsidiaries,\n(ii) the Company commences negotiations with any Person (other than the Counterparty) or group of Persons with respect to any transaction of the\ntype referred to in clause (i) above without entering into with such Person or group of Persons a mutual non-disclosure agreement having provisions\nno\nless restrictive than those set forth in this Agreement (and the Company shall promptly disclose such agreement to the Counterparty) or (iii) the\nCompany releases any Person from restrictions similar to those set forth in this Section 3, then (in any of such cases) the restrictions set forth in\nthis\nSection 3 shall immediately terminate and cease to be of any further force or effect.\n4. Confidential Information does not include information that the Recipient demonstrates (a) is in the public domain through no fault of, or\ndisclosure by, the Recipient or its Representatives, subsidiaries or affiliates, (b) was properly known to the Recipient, without restriction, prior to\ndisclosure by the Disclosing Party, (c) was properly disclosed to the Recipient by another person, but only if such person is not bound by a\nconfidentiality agreement with the Disclosing Party or is not otherwise restricted from providing such information by a contractual, legal or fiduciary\nduty. Additionally, notwithstanding any other provision of this Agreement, if the Recipient or any Representative of the Recipient is, at any time,\nlegally compelled to disclose any Confidential Information, the Recipient will provide the Disclosing Party with prompt notice thereof so that\nthe\nDisclosing Party may seek an appropriate protective order or other appropriate relief, or waive compliance with the provisions of this Agreement.\nIn\nthe absence of a protective order or a waiver from the Disclosing Party, the Recipient or its Representative may comply with such\nlegal\nrequirement\nby disclosing only such Confidential Information as is legally required.\n5. Each Party acknowledges and agrees that neither Party nor any of its Representatives makes any representation or warranty (express or\nimplied) as to the accuracy or completeness of the Confidential Information, except for those express representations and warranties that may be\nmade and set forth in a definitive agreement regarding the Opportunity, if any, that is entered into between the Parties.\n6. If either Party decides not to proceed with the Opportunity, the Parties will promptly return or destroy all Confidential Information received\nunder this Agreement, and all\ncopies, extracts and other objects or items in which such Confidential Information may be contained or embodied, and certify in writing that it has\ncomplied with this requirement.\n7. Without the prior consent of the other Party, neither Party nor its Representatives will initiate contact with any employee of the other Party\nwith respect to the Opportunity. Each Party agrees that, for a period of one year from the Effective Date of this Agreement, such Party will not, and\nwill\nnot\npermit\nany\ncontrolled Representative to whom it has provided any Confidential Information to, directly or indirectly, solicit for employment\nor hire any employee of the other Party with whom such Party has had contact or who became known to such Party in connection with consideration\nof\nthe Opportunity; provided that the foregoing shall not prohibit general employment advertisements and other similar employment solicitations that\nare not targeted at employees of the other Party.\n8. Each Party will promptly notify the other Party upon discovery of any unauthorized use or disclosure of the Confidential Information, or any\nother breach of this Agreement by such Party or any of its Representatives, and will cooperate with the other Party to help the other Party regain\npossession of the Confidential Information and prevent its unauthorized use or further disclosure.\n9. Each Party acknowledges and agrees that this Agreement does not obligate the other Party to disclose any information, including any\nConfidential Information, negotiate, or enter into any agreement or relationship with the other Party, or accept any offer from the other Party. Each\nParty further acknowledges and agrees that (a) the other Party and its Representatives shall be free to conduct any process for any transaction\ninvolving the Opportunity, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested\nparties and entering into a definitive agreement therewith without prior notice to the other Party or any other person), (b) any procedures relating to\nsuch process or transaction may be changed at any time without notice to the other Party or any other person, and (c) unless a definitive agreement\nis\nentered\ninto\namong\nthe\nParties,\nneither\nParty\nshall\nhave\nany\nclaims\nwhatsoever\nwith\nrespect\nto\nthe\nOpportunity\nagainst\nthe\nother\nParty\nor\nany\nthird\nperson with whom a transaction is entered into by the other Party. The Counterparty acknowledges that the Company may disclose that it\nis\nexploring strategic alternatives. Nothing in this Agreement shall be deemed to prohibit a Party from: (a) making a public announcement regarding\nthe discussions (or the termination of such discussions) between the parties regarding the Opportunity, provided, however, that, to the extent\npracticable, a Party that intends to make such a public announcement shall discuss any such proposed announcement with the other Party prior to\nmaking such announcement; or (b) making any public announcement that may be required by applicable law, fiduciary duties or obligations pursuant\nto any listing agreement with a national securities exchange. The Parties acknowledge that any disclosures made by them before the Effective Date\nare not subject to the restrictions in this Agreement.\n10. The terms of this Agreement will remain in effect with respect to any particular Confidential Information for a period of two years\nfollowing the termination of discussion between the Parties. This Agreement shall terminate automatically if the Company has not given to the\nCounterparty any Confidential Information within ten days of the Effective Date of this Agreement.\n11. Each Party acknowledges and agrees that any breach of this Agreement would cause irreparable harm to the other Party for which damages\nare\nnot an adequate remedy, and that the other Party shall therefore be entitled (without the posting of a bond or other security) to equitable relief in\naddition to all other remedies available at law.\n12. This Agreement is governed by the internal laws of the State of Delaware and may be modified or waived only in writing signed by the\nParty against which such modification or waiver is sought to be enforced. The Parties irrevocably and unconditionally consent to submit to the\nexclusive jurisdiction of the courts of the State of Delaware in New Castle County, Delaware, for any actions, suits or proceedings arising out of or\nrelating to this Agreement (and the Parties agree not to commence any action, suit or proceeding relating thereto, except in such courts), and further\nagree that service of any process, summons, notice or document by U.S. registered mail to the other Party's address set forth next to their signature\nhereto shall be effective service of process for any action, suit or proceeding brought in any such court. The Parties irrevocably and unconditionally\nwaive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement, in the courts of the State of Delaware or\nthe United States of America located in New Castle County, Delaware, and hereby further irrevocably and unconditionally waive and agree not\nto\nplead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n13. Neither the failure nor delay by any Party in exercising any right hereunder will operate as a waiver of such right, and no single or partial\nexercise of a right will preclude any other or further exercise of such right. The term "person" means any individual, corporation, partnership, limited\nliability company, joint venture, estate, trust, association, organization, or other entity or governmental body. If any provision of this Agreement\nis\nfound to be unenforceable, such provision wil be limited or deleted to the minimum extent necessary so that the remaining terms remain in full force\nand effect. The prevailing Party or Parties in any dispute or legal action regarding the subject matter of this Agreement (as finally determined by a\ncourt of competent jurisdiction) shall be entitled to recover attorneys' fees and costs.\n14. This Agreement may be executed and delivered by facsimile or .pdf signature and in two or more counterparts, each of which shall be\ndeemed an original, but all of which together shall constitute one and the same instrument.\n[Counterpart Signatures Follow]\nAccepted and Agreed as of Feb. 8, 2011 by:\n"Counterparty"\nCOLEMAN CABLE, INC.\nBy:\n/s/ G. Yetman\nName: Gary Yetman\nTitle: President and CEO\nCounterparty's Address:\n1530 Shields Drive\nWaukegan, Illinois 60085\nAttention: G. Gary Yetman, President and Chief Executive Officer\n"Company"\nTECHNOLOGY RESEARCH CORPORATION\nBy:\n/s/ Robert D. Woltil\nName: Robert D. Woltil\nTitle:\nVP Finance, CFO and Secretary\nCompany's Address:\n5250 140th Avenue North\nClearwater, Florida 33760\nAttention: Owen Farren, President and Chief Executive Officer	EX-99.(E).(3) 3 dex99e3.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (e)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis is a Mutual Non-Disclosure Agreement (this “Agreement”), effective as of the date stated below (the “Effective Date”), between\nTechnology Research Corporation, a Florida corporation (the “Company”), and Coleman Cable, Inc., a Delaware corporation (the “Counterparty”).\nBackground\nThe Parties are considering a potential business transaction (the “Opportunity”), and are entering into this Agreement so that they can share\nconfidential information pertinent to the Opportunity with confidence that the other Party will use such confidential information only to evaluate the\nOpportunity and will not disclose that confidential information, except in accordance with the terms of this Agreement. The Counterparty and the\nCompany are sometimes referred to individually as a “Party” and collectively as the “Parties.”\nOperative Terms\nThe Parties agree as follows:\n1. These terms have the following definitions in this Agreement:\n“Confidential Information” means all information concerning or related to the business, operations, results of operations, assets and affairs of a\nDisclosing Party, including, but not limited to, financial and accounting information, budgets, projections, forecasts, business plans, operating\nmethods, business strategies, product and service information, product plans, product specifications, product designs, processes, plans, drawings,\nconcepts, research and development data and materials, systems, techniques, trade secrets, intellectual property, software programs and works of\nauthorship, know-how, marketing and distribution plans, planning data, marketing strategies, price lists, market studies, employee lists, supplier lists,\ncustomer and prospect lists, and supplier and other customer information and data that the Disclosing Party or its Representatives discloses (or has,\nprior to the date of this Agreement, disclosed) to the Recipient or its Representatives in connection with the Opportunity, however documented or\ndisclosed, together with any copies, extracts, analyses, compilations, studies or other documents prepared or received by the Recipient or its\nRepresentatives, which contain or otherwise reflect such information.\n“Disclosing Party” means the Party furnishing Confidential Information.\n“Opportunity” has the meaning set forth in the Background.\n“Recipient” means the Party receiving Confidential Information.\n“Representatives” means the officers, directors, employees, partners, members, managers, agents, advisors, subsidiaries, affiliates or\nrepresentatives of a Party.\n2. Each Party in its capacity as a Recipient agrees to use the Confidential Information provided by the other Party solely for the purpose of\nevaluating the Opportunity, and\nfor no other purpose, and further agrees to keep confidential and not disclose to any third party any Confidential Information. Notwithstanding the\nforegoing, each Party may disclose such Confidential Information solely to those of its Representatives who (a) require such material for the purpose\nof evaluating the Opportunity on behalf of such Party, and (b) are informed by such Party of the confidential nature of the Confidential Information\nand the obligations of this Agreement and agree to abide by the terms hereof as if they were a Recipient hereunder. Each Party shall take all actions\nnecessary to cause its Representatives and affiliates who receive Confidential Information to comply with the terms of this Agreement as if they\nwere a Recipient. Each Party shall be responsible for any disclosure of Confidential Information by its Representatives other than in accordance with\nthe terms of this Agreement. Each Party acknowledges the confidential and proprietary nature of the Confidential Information provided by the other\nParty and acknowledges and agrees that it is acquiring no rights whatsoever in or to such Confidential Information. For avoidance of doubt, if the\nParties do not consummate a transaction with respect to the Opportunity and terminate discussions, neither Party nor its Representatives may use the\nConfidential Information of the other Party for any purpose whatsoever. Further, for avoidance of doubt, the Parties acknowledge that they may\nconduct competing businesses and nothing in this Agreement shall restrict or prohibit either Party from continuing to conduct its business and to\ncompete with the other Party so long as such action does not violate the terms of this Agreement. The Counterparty acknowledges that the\nConfidential Information that may be disclosed by the Company or its Representatives may contain material, non-public information. The\nCounterparty acknowledges and understands that federal securities law may restrict the Counterparty from pledging, selling, hedging, contracting to\nsell, short-selling, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option, right, or warrant to\npurchase or otherwise hypothecating transferring for value, directly or indirectly, any securities of the Company while in possession of material non-\npublic information regarding the Company.\n3. Neither the Counterparty nor any current or future affiliate of the Counterparty, for a period ending on the earlier of (A) the date on which\nthe Parties enter into a definitive agreement with respect to the Opportunity and (B) one year from the date of this Agreement (the “Standstill\nTerm”), shall in any manner, directly or indirectly, without the prior written approval of the Company’s Board of Directors: (a) effect or participate in\nor in any way assist, facilitate, encourage or form, join or in any way participate in a “group” (as defined under the rules and regulations of the\nSecurities and Exchange Commission) with any other person to effect or seek, offer or propose to effect or participate in (i) any acquisition of any\nvoting securities (or beneficial ownership thereof), or rights or options to acquire any voting securities (or beneficial ownership thereof), or any\nassets or businesses of the Company, (ii) any tender or exchange offer, merger or other business combination involving the Company, any of its\nsubsidiaries or affiliates or the assets of the Company or its subsidiaries or affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution\nor other extraordinary transaction with respect to the Company or any of its subsidiaries or affiliates or (iv) any “solicitation” of “proxies” (as these\nterms are used in the rules and regulations of the Securities and Exchange Commission) or consents to vote any voting securities of the Company or\nany of its affiliates; or (b) authorize any of their respective Representatives to, in any manner, directly or indirectly, take any of the actions set forth\nin (a) above. During the Standstill Term, the Counterparty shall use its best efforts to cause its and its current and future affiliates’ Representatives to\nnot take, in any\nmanner, directly or indirectly, without the prior written approval of the Company’s Board of Directors, any of the actions set forth in (a) above.\nNothing in this Section 3 shall prohibit the Counterparty from making, at any time during the Standstill Term, confidential proposals to the\nCompany’s management or board of directors relating to any of the matters set forth in clause (a) above. Notwithstanding anything to the contrary\ncontained in this Agreement, if, at any time during the Standstill Term, (i) any Person (other than the Counterparty) or group of Persons\n(A) commences, or announces an intention to commence, a tender or exchange offer for at least 51% of any class of the Company’s securities,\n(B) commences, or announces an intention to commence, a proxy contest or a solicitation of consents with respect to the election of any director or\ndirectors of the Company, (C) acquires beneficial ownership of at least 15% of any class of the Company’s securities or (D) enters into, or announces\nan intention to enter into, an agreement with the Company contemplating the acquisition (by way of merger, tender offer or otherwise) of at least\n15% of any class of the Company’s securities or all or a substantial portion of the assets of the Company or any of the Company’s subsidiaries,\n(ii) the Company commences negotiations with any Person (other than the Counterparty) or group of Persons with respect to any transaction of the\ntype referred to in clause (i) above without entering into with such Person or group of Persons a mutual non-disclosure agreement having provisions\nno less restrictive than those set forth in this Agreement (and the Company shall promptly disclose such agreement to the Counterparty) or (iii) the\nCompany releases any Person from restrictions similar to those set forth in this Section 3, then (in any of such cases) the restrictions set forth in this\nSection 3 shall immediately terminate and cease to be of any further force or effect.\n4. Confidential Information does not include information that the Recipient demonstrates (a) is in the public domain through no fault of, or\ndisclosure by, the Recipient or its Representatives, subsidiaries or affiliates, (b) was properly known to the Recipient, without restriction, prior to\ndisclosure by the Disclosing Party, (c) was properly disclosed to the Recipient by another person, but only if such person is not bound by a\nconfidentiality agreement with the Disclosing Party or is not otherwise restricted from providing such information by a contractual, legal or fiduciary\nduty. Additionally, notwithstanding any other provision of this Agreement, if the Recipient or any Representative of the Recipient is, at any time,\nlegally compelled to disclose any Confidential Information, the Recipient will provide the Disclosing Party with prompt notice thereof so that the\nDisclosing Party may seek an appropriate protective order or other appropriate relief, or waive compliance with the provisions of this Agreement. In\nthe absence of a protective order or a waiver from the Disclosing Party, the Recipient or its Representative may comply with such legal requirement\nby disclosing only such Confidential Information as is legally required.\n5. Each Party acknowledges and agrees that neither Party nor any of its Representatives makes any representation or warranty (express or\nimplied) as to the accuracy or completeness of the Confidential Information, except for those express representations and warranties that may be\nmade and set forth in a definitive agreement regarding the Opportunity, if any, that is entered into between the Parties.\n6. If either Party decides not to proceed with the Opportunity, the Parties will promptly return or destroy all Confidential Information received\nunder this Agreement, and all\ncopies, extracts and other objects or items in which such Confidential Information may be contained or embodied, and certify in writing that it has\ncomplied with this requirement.\n7. Without the prior consent of the other Party, neither Party nor its Representatives will initiate contact with any employee of the other Party\nwith respect to the Opportunity. Each Party agrees that, for a period of one year from the Effective Date of this Agreement, such Party will not, and\nwill not permit any controlled Representative to whom it has provided any Confidential Information to, directly or indirectly, solicit for employment\nor hire any employee of the other Party with whom such Party has had contact or who became known to such Party in connection with consideration\nof the Opportunity; provided that the foregoing shall not prohibit general employment advertisements and other similar employment solicitations that\nare not targeted at employees of the other Party.\n8. Each Party will promptly notify the other Party upon discovery of any unauthorized use or disclosure of the Confidential Information, or any\nother breach of this Agreement by such Party or any of its Representatives, and will cooperate with the other Party to help the other Party regain\npossession of the Confidential Information and prevent its unauthorized use or further disclosure.\n9. Each Party acknowledges and agrees that this Agreement does not obligate the other Party to disclose any information, including any\nConfidential Information, negotiate, or enter into any agreement or relationship with the other Party, or accept any offer from the other Party. Each\nParty further acknowledges and agrees that (a) the other Party and its Representatives shall be free to conduct any process for any transaction\ninvolving the Opportunity, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested\nparties and entering into a definitive agreement therewith without prior notice to the other Party or any other person), (b) any procedures relating to\nsuch process or transaction may be changed at any time without notice to the other Party or any other person, and (c) unless a definitive agreement is\nentered into among the Parties, neither Party shall have any claims whatsoever with respect to the Opportunity against the other Party or any third\nperson with whom a transaction is entered into by the other Party. The Counterparty acknowledges that the Company may disclose that it is\nexploring strategic alternatives. Nothing in this Agreement shall be deemed to prohibit a Party from: (a) making a public announcement regarding\nthe discussions (or the termination of such discussions) between the parties regarding the Opportunity, provided, however, that, to the extent\npracticable, a Party that intends to make such a public announcement shall discuss any such proposed announcement with the other Party prior to\nmaking such announcement; or (b) making any public announcement that may be required by applicable law, fiduciary duties or obligations pursuant\nto any listing agreement with a national securities exchange. The Parties acknowledge that any disclosures made by them before the Effective Date\nare not subject to the restrictions in this Agreement.\n10. The terms of this Agreement will remain in effect with respect to any particular Confidential Information for a period of two years\nfollowing the termination of discussion between the Parties. This Agreement shall terminate automatically if the Company has not given to the\nCounterparty any Confidential Information within ten days of the Effective Date of this Agreement.\n11. Each Party acknowledges and agrees that any breach of this Agreement would cause irreparable harm to the other Party for which damages\nare not an adequate remedy, and that the other Party shall therefore be entitled (without the posting of a bond or other security) to equitable relief in\naddition to all other remedies available at law.\n12. This Agreement is governed by the internal laws of the State of Delaware and may be modified or waived only in writing signed by the\nParty against which such modification or waiver is sought to be enforced. The Parties irrevocably and unconditionally consent to submit to the\nexclusive jurisdiction of the courts of the State of Delaware in New Castle County, Delaware, for any actions, suits or proceedings arising out of or\nrelating to this Agreement (and the Parties agree not to commence any action, suit or proceeding relating thereto, except in such courts), and further\nagree that service of any process, summons, notice or document by U.S . registered mail to the other Party’s address set forth next to their signature\nhereto shall be effective service of process for any action, suit or proceeding brought in any such court. The Parties irrevocably and unconditionally\nwaive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement, in the courts of the State of Delaware or\nthe United States of America located in New Castle County, Delaware, and hereby further irrevocably and unconditionally waive and agree not to\nplead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n13. Neither the failure nor delay by any Party in exercising any right hereunder will operate as a waiver of such right, and no single or partial\nexercise of a right will preclude any other or further exercise of such right. The term “person” means any individual, corporation, partnership, limited\nliability company, joint venture, estate, trust, association, organization, or other entity or governmental body. If any provision of this Agreement is\nfound to be unenforceable, such provision will be limited or deleted to the minimum extent necessary so that the remaining terms remain in full force\nand effect. The prevailing Party or Parties in any dispute or legal action regarding the subject matter of this Agreement (as finally determined by a\ncourt of competent jurisdiction) shall be entitled to recover attorneys’ fees and costs.\n14. This Agreement may be executed and delivered by facsimile or .pdf signature and in two or more counterparts, each of which shall be\ndeemed an original, but all of which together shall constitute one and the same instrument.\n[Counterpart Signatures Follow]\nAccepted and Agreed as of Feb. 8, 2011 by:\n“Counterparty”\nCOLEMAN CABLE, INC.\nBy: /s/ G. Yetman\nName: Gary Yetman\nTitle: President and CEO\nCounterparty’s Address:\n1530 Shields Drive\nWaukegan, Illinois 60085\nAttention: G. Gary Yetman, President and Chief Executive Officer\n“Company”\nTECHNOLOGY RESEARCH CORPORATION\nBy: /s/ Robert D. Woltil\nName: Robert D. Woltil\nTitle: VP Finance, CFO and Secretary\nCompany’s Address:\n5250 140th Avenue North\nClearwater, Florida 33760\nAttention: Owen Farren, President and Chief Executive Officer
+370f080c689b6c4bdd2c88b7de244d76.pdf	effective_date jurisdiction party	MUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement is made and entered into this 31st day of May , 2005 by and between the undersigned (the\n"CDW Contracting Party") and Promark Technology, Inc. under the following terms and conditions:\n1.\nNature and Purpose. The parties to this Agreement desire\nto engage in certain business arrangements and/or\ncontractual relationships which may involve the disclosure\nof financial, proprietary, competitively sensitive, and/or\nmarket sensitive information and/or contain trade secrets.\nThe purpose of this Agreement is to define their rights and\nobligations with respect to such information. This\nAgreement does not obligate either party to disclose any\ninformation to the other or to enter into any other\nagreement or arrangement, nor shall it be construed as\ngranting any rights by license or otherwise in any trade\nsecrets or other intellectual property rights of either party.\nAs provided for herein, the parties' obligations under this\nAgreement shall survive the termination of their business\narrangements and/or contractual relationships, regardless\nof the manner of such termination.\n2.\nConfidential Information. Either party ("Discloser") may at\nits option make available to the other party ("Recipient") in\nthe performance of this Agreement information of a\nconfidential or proprietary nature to such party, including\ninformation of its affiliates or of a third party (hereinafter\nreferred to as "Confidential Information"). As used in this\nAgreement, the Confidential Information shall mean any\ninformation or data in oral and/or written form which\nRecipient knows or has reason to know is Confidential\nInformation and which is disclosed in connection with this\nAgreement or which Recipient may have access to in\nconnection with this Agreement, including but not limited to\nbusiness and marketing plans, strategic alliances, cost or\npricing data, the identities of customers and prospective\ncustomers. To the extent practicable, Confidential\nInformation shall be clearly identified or labeled as such at\nthe time of disclosure or as promptly thereafter as\npossible, however, failure to so identify or label such\nConfidential Information shall not be evidence that such\ninformation is not proprietary or protectable. Confidential\nInformation shall not include any information which (a) was\nrightfully in the possession of Recipient prior to disclosure\nby Discloser; (b) was or is independently developed by\nRecipient without use of the Confidential Information; (c) is\nnow or hereafter becomes available to the public other\nthan as a result of disclosure by Recipient in violation of\nthis Agreement; or (d) becomes available to Recipient on a\nnon-confidential basis from a source other than Discloser\nand such source was under no obligation to Discloser to\nkeep such information confidential.\n3.\nDegree of Care. Recipient shall maintain the Confidential\nInformation using the same degree of care as it uses to\nprotect its own confidential and proprietary information but\nin any case using no less than a reasonable degree of\ncare. In addition, Recipient shall not use the Confidential\nInformation received from Discloser for its own benefit or,\nexcept as expressly provided for herein, disclose the\nConfidential Information to third parties without the prior\nwritten consent of an authorized representative of\nDiscloser.\n4.\nDisclosure. Recipient agrees to disclose the Confidential\nInformation only to its directors, officers, employees,\nagents, independent contractors and consultants who\nhave a need to know the Confidential Information as\nrequired in furtherance of the objectives of the business\nrelationship between the parties, and with respect to\nindependent contractors and consultants, only those who\nhave agreed to substantially similar non-disclosure\nobligations as those contained herein. Notwithstanding the\nforegoing, the CDW Contracting Party may disclose the\nConfidential Information to its affiliates and their directors,\nofficers, employees and agents who may also have a need\nto know the Confidential Information in furtherance of the\nbusiness relationship.\n[***] – Indicates omission pursuant to a request for confidential treatment. The omitted text has been filed separately with\nthe Securities and Exchange Commission.\n1.\nLegal Action Requiring Disclosure. If Recipient is\nrequired by law, rule or regulation, or requested in any\njudicial or administrative proceeding or by any\ngovernmental or regulatory authority, to disclose the\nConfidential Information, Recipient shall give Discloser\nprompt notice of such request so that Discloser may seek\nan appropriate protective order or similar protective\nmeasure. Upon Discloser's written request Recipient shall,\nat Discloser's expense, cooperate with Discloser in\nseeking such order or similar protective measure. If\nRecipient is nonetheless compelled to disclose the\nConfidential Information, Recipient shall disclose only that\nportion of the Confidential Information, which Recipient is\nlegally required to disclose and upon Discloser's request\nand expense, shall use reasonable efforts to obtain\nassurances that confidential treatment will be accorded to\nsuch Confidential Information to the extent such\nassurances are available.\n2.\nReturn Or Destruction Of Confidential Information.\nRecipient is hereby authorized to make only the number of\ncopies of the Confidential Information necessary to\ndisseminate the Confidential Information to those who are\nentitled to have access to it, and ensure that all\nconfidentiality notices set forth on the Confidential\nInformation are reproduced in full on such copies. At the\nwritten request of Discloser, Recipient agrees to return or,\nat Discloser's sole discretion, destroy all materials in its\npossession and control, which contain any Confidential\nInformation and shall, at Discloser's written request, certify\nin writing to Discloser that all copies (in any form or media)\nhave been destroyed or returned to Discloser.\n3.\nLimitation On Use. Recipient shall use the Confidential\nInformation only in connection with the furtherance of the\nbusiness relationship between the parties, and Recipient\nshall make no further use, in whole or in part, of any\nConfidential Information. However, nothing in this\nAgreement shall restrict Discloser from using, disclosing,\nor disseminating its own Confidential Information in any\nway.\n4.\nInjunctive Relief. Each party acknowledges that\nunauthorized disclosure or use of the Confidential\nInformation by Recipient may cause irreparable harm and\ndamage to the business of Discloser which may be difficult\nto ascertain and which may not be adequately\ncompensated by damages at law. Therefore, each party\nagrees that, in the event of a breach or threatened breach\nof the terms of this Agreement, Discloser shall be entitled\nto an injunction prohibiting any unauthorized disclosure or\nuse of its Confidential Information. Any such injunctive\nrelief shall be in addition to, and not in lieu of, any\nappropriate monetary damages.\n5.\nTerm of Confidentiality. Recipient shall maintain the\nConfidential Information III accordance with this\nAgreement for a period of five (5) years from the date of\ndisclosure.\n6.\nValidity. In the event of the invalidity or unenforceability of\nany provision of this Agreement under applicable law, the\nparties agree that such invalidity or unenforceability shall\nnot affect the validity or enforceability of the remaining\nportions of this Agreement.\n[***] – Indicates omission pursuant to a request for confidential treatment. The omitted text has been filed separately with\nthe Securities and Exchange Commission.\n1.\nAssignment. This Agreement shall not be assigned by\neither party without the prior written consent of the other\nparty, and any purported assignment without such consent\nshall be void. This approval requirement shall not apply to\nthe assignment to any successor corporation in the event\nof a merger or acquisition. In addition, the CDW\nContracting Party shall have the right, without consent, to\nassign any or all of its rights and obligations under this\nAgreement to any of its affiliates. Subject to the foregoing,\nthis Agreement shall be binding upon and inure to the\nbenefit of the parties' successors in interest.\n2.\nMiscellaneous. This Agreement constitutes the entire\nagreement between the parties with respect to the subject\nmatter hereof, and shall supersede all previous\ncommunications, representations, understandings, and\nagreements, either oral or written, between the parties\nthereof. This Agreement may not be changed or modified\nexcept by a written agreement signed by the parties\nhereto. This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of\nIllinois without regard to its conflicts of law rules. Any\naction arising out of a dispute between the parties shall be\nbrought in the courts located in Cook County, Illinois and\neach party consents to the jurisdiction of the federal and\nstate courts located in Cook County, Illinois and submits to\nthe jurisdiction thereof and waives the right to change\nvenue.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized officers as of\nthe date and year first set forth above.\nPROMARK TECHNOLOGY, INC.\nTHE CDW CONTRACTING PARTY\nBy:\nBy:\nName : Dale R. Foster\nName :\nTitle: President\nTitle:\nAddress: 10810 Guilford Road, Suite 101 Address:\nAddress:\nAnnapolis Junction, MD 20701	MUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement is made and entered into this 315tday of May , 2005 by and between the undersigned (the\n"CDW Contracting Party") and Promark Technology, Inc. underthe following terms and conditions:\nNature and Purpose. The parties to this Agreement desire\nto engage in certain business arrangements and/or\ncontractual relationships which may involve the disclosure\nof financial, proprietary, competitively sensitive, and/or\nmarket sensitive information and/or contain trade secrets.\nThe purpose of this Agreement is to define their rights and\nobligations with respect to such information. This\nAgreement does not obligate either party to disclose any\ninformation to the other or to enter into any other\nagreementor arrangement, nor shall it be construed as\ngranting any rights by license or otherwise in any trade\nsecrets or other intellectual property rights of either party.\nAs provided for herein, the parties' obligations under this\nAgreement shall survive the termination of their business\narrangements and/or contractual relationships, regardless\nof the manner of such termination.\nConfidential Information. Either party ("Discloser") may at\nits option make available to the other party ("Recipient") in\nthe performance of this Agreement information of a\nconfidential or proprietary nature to such party, including\ninformation of its affiliates or of a third party (hereinafter\nreferred to as "Confidential Information"). As used in this\nAgreement, the Confidential Information shall mean any\ninformation or data in oral and/or written form which\nRecipient knows or has reason to know is Confidential\nInformation and which is disclosed in connection with this\nAgreement or which Recipient may have access to in\nconnection with this Agreement, including but not limited to\nbusiness and marketing plans, strategic alliances, cost or\npricing data, the identities of customers and prospective\ncustomers. To the extent practicable, Confidential\nInformation shall be clearly identified or labeled as such at\nthe time of disclosure or as promptly thereafter as\npossible, however, failure to so identify or label such\nConfidential Information shall not be evidence that such\ninformation is not proprietary or protectable. Confidential\nInformation shall not include any information which (a) was\nrightfully in the possession of Recipient prior to disclosure\nby Discloser; (b) was or is independently developed by\nRecipient without use of the Confidential Information; (c) is\nnow or hereafter becomes available to the public other\nthan as a result of disclosure by Recipient in violation of\nthis Agreement; or (d) becomes available to Recipient on a\nnon-confidential basis from a source otherthan Discloser\nand such source was under no obligation to Discloserto\nkeep such information confidential.\nDegree of Care. Recipient shall maintain the Confidential\nInformation using the same degree of care as it uses to\nprotect its own confidential and proprietary information but\nin any case using no less than a reasonable degree of\ncare. In addition, Recipient shall not use the Confidential\nInformation received from Discloser for its own benefit or,\nexcept as expressly provided for herein, disclose the\nConfidential Information to third parties withoutthe prior\nwritten consent of an authorized representative of\nDiscloser.\nDisclosure. Recipient agrees to disclose the Confidential\nInformation only to its directors, officers, employees,\nagents, independentcontractors and consultants who\nhave a need to know the Confidential Information as\nrequired in furtherance of the objectives ofthe business\nrelationship between the parties, and with respect to\nindependentcontractors and consultants, only those who\nhave agreed to substantially similar non-disclosure\nobligations as those contained herein. Notwithstanding the\nforegoing, the CDW Contracting Party may disclose the\nConfidential Information to its affiliates and their directors,\nofficers, employees and agents who may also have a need\nto know the Confidential Information in furtherance of the\nbusiness relationship.\n[***] — Indicates omission pursuant to a request for confidential treatment. The omitted text has been filed separately with\nthe Securities and Exchange Commission.\nLegal Action Requiring Disclosure. If Recipient is\nrequired bylaw, rule or regulation, or requested in any\njudicial or administrative proceeding or by any\ngovernmental or regulatory authority, to disclose the\nConfidential Information, Recipientshall give Discloser\nprompt notice of such request so that Discloser may seek\nan appropriate protective order or similar protective\nmeasure. Upon Discloser's written request Recipient shall,\nat Discloser's expense, cooperate with Discloser in\nseeking such order or similar protective measure. If\nRecipient is nonetheless compelled to disclose the\nConfidential Information, Recipient shall disclose only that\nportion of the Confidential Information, which Recipient is\nlegally required to disclose and upon Discloser's request\nand expense, shall use reasonable efforts to obtain\nassurances that confidential treatment will be accorded to\nsuch Confidential Information to the extent such\nassurances are available.\nReturn 0r Destruction 0f Confidential Information.\nRecipient is hereby authorized to make only the number of\ncopies of the Confidential Information necessary to\ndisseminate the Confidential Information to those who are\nentitled to have access to it, and ensure thatall\nconfidentiality notices set forth on the Confidential\n2. Information are reproduced in full on such copies. Atthe\nwritten requestof Discloser, Recipientagrees to return or,\nat Discloser's sole discretion, destroy all materials in its\npossession and control, which contain any Confidential\nInformation and shall, at Discloser's written request, certify\nin writing to Discloserthat all copies (in any form or media)\nhave been destroyed or returned to Discloser.\nLimilation 0n Use. Recipient shall use the Confidential\nInformation only in connection with the furtherance of the\nbusiness relationship between the parties, and Recipient\nshall make no further use, in whole or in part, ofany\nConfidential Information. However, nothing in this\nAgreement shall restrict Discloserfrom using, disclosing,\nor disseminating its own Confidential Information in any\nway.\nlnjunctive Relief. Each party acknowledges that\nunauthorized disclosure or use of the Confidential\nInformation by Recipient may cause irreparable harm and\ndamage to the business of Discloserwhich may be difficult\nto ascertain and which may not be adequately\ncompensated by damages at law. Therefore, each party\nagrees that, in the event ofa breach orthreatened breach\nof the terms of this Agreement, Discloser shall be entitled\nto an injunction prohibiting any unauthorized disclosure or\nuse of its Confidential Information. Any such injunctive\nrelief shall be in addition to, and not in lieu of, any\nappropriate monetary damages.\nTerm of Confidentiality. Recipient shall maintain the\nConfidential Information III accordance with this\nAgreement for a period of five (5) years from the date of\ndisclosure.\nValidity. In the event of the invalidity or unenforceability of\nany provision of this Agreement under applicable law, the\nparties agree that such invalidity or unenforceability shall\nnot affect the validity or enforceability of the remaining\nportions of this Agreement.\n[***] — Indicates omission pursuant to a request for confidential treatment. The omitted text has been filed separately with the Securities and Exchange Commission.\nAssignment. This Agreement shall not be assigned by\neither party without the prior written consent of the other\nparty, and any purported assignment without such consent\nshall be void. This approval requirement shall not apply to\nthe assignment to any successor corporation in the event\nofa merger or acquisition. In addition, the CDW\nContracting Party shall have the right, without consent, to\nassign any or all of its rights and obligations under this\nAgreement to any of its affiliates. Subject to the foregoing,\nthis Agreement shall be binding upon and inure to the\nbenefit of the parties' successors in interest.\nMiscellaneous. This Agreement constitutes the entire\nagreement between the parties with respectto the subject\nmatter hereof, and shall supersede all previous\ncommunications, representations, understandings, and\nagreements, either oral or written, between the parties\nthereof. This Agreement may not be changed or modified\nexcept by a written agreement signed by the parties\nhereto. This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of\nIllinois without regard to its conflicts of law rules. Any\naction arising outofa dispute between the parties shall be\nbrought in the courts located in Cook County, Illinois and\neach party consents to the jurisdiction of the federal and\nstate courts located in Cook County, Illinois and submits to\nthe jurisdiction thereof and waives the right to change\nvenue.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized officers as of the date and year first set forth above.\nPROMARK TECHNOLOGY, INC.\nBy:\nName : Dale R. Foster\nTitle: President\nAddress: 10810 Guilford Road, Suite 101 Address: Annapolisj unction, MD 20701\nTHE CDW CONTRACTING PARTY\nBy:\nName:\nTitle:\nAddress:	MUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement is made and entered into this 31st day of May 2005 by and between the undersigned (the\n"CDW Contracting Party") and Promark Technology, Inc. under the following terms and conditions:\nNature and Purpose. The parties to this Agreement desire\nto engage in certain business arrangements and/or\ncontractual relationships which may involve the disclosure\nof financial, proprietary, competitively sensitive, and/or\nmarket sensitive information and/or contain trade secrets.\nThe purpose of this Agreement is to define their rights and\nobligations with respect to such information. This\n1.\nAgreement does not obligate either party to disclose any\ninformation to the other or to enter into any other\nagreement or arrangement, nor shall it be construed as\ngranting any rights by license or otherwise in any trade\nsecrets or other intellectual property rights of either party.\nAs provided for herein, the parties' obligations under this\nAgreement shall survive the termination of their business\narrangements and/or contractual relationships, regardless\nof the manner of such termination.\nConfidential Information. E ither party ("Discloser") may at\nits option make available to the other party "Recipient") in\nthe performance of this Agreement information of a\nconfidential or proprietary nature to such party, including\ninformation of its affiliates or of a third party (hereinafter\nreferred to as "Confidential Information"). As used in this\nAgreement, the Confidential Information shall mean any\ninformation or data in oral and/or written form which\nR ecipient knows or has reason to know is Confidential\nInformation and which is disclosed in connection with this\nAgreement or which Recipient may have access to in\nconnection with this Agreement, including but not limited to\nbusiness and marketing plans, strategic alliances, cost or\npricing data, the identities of customers and prospective\n2.\ncustomers. To the extent practicable, Confidentia\nInformation shall be clearly identified or labeled as such at\nthe time of disclosure or as promptly thereafter as\npossible, however, failure to so identify or label such\nConfidential Information shall not be evidence that such\ninformation is not proprietary or protectable. Confidential\nInformation shall not include any information which (a) was\nrightfully in the possession of R ecipient prior to disclosure\nby Discloser; (b) was or is independently developed by\nR ecipient without use of the Confidential Information; (c) is\nnow or hereafter becomes available to the public other\nthan as a result of disclosure by Recipient in violation of\nthis Agreement; or (d) becomes available to Recipient on a\nnon-confidential basis from a source other than Discloser\nand such source was under no obligation to Discloser to\nkeep such information confidential.\nDegree of Care. Recipient shall maintain the Confidential\nInformation using the same degree of care as it uses to\nprotect its own confidential and proprietary information but\nin any case using no less than a reasonable degree of\n3.\ncare. In addition, Recipient shall not use the Confidential\nInformation received from Discloser for its own benefit or,\nexcept as expressly provided for herein, disclose the\nConfidential Information to third parties without the prior\nwritten consent of an authorized representative of\nDiscloser.\nDisclosure. Recipient agrees to disclose the Confidential\nInformation only to its directors, officers, employees,\nagents, independent contractors and consultants who\nhave a need to know the Confidential Information as\nrequired in furtherance of the objectives of the business\nrelationship between the parties, and with respect to\nindependent contractors and consultants, only those who\n4.\nhave agreed to substantially similar non-disclosure\nobligations as those contained herein. Notwithstanding the\nforegoing, the CDW Contracting Party may disclose the\nConfidential Information to its affiliates and their directors,\nofficers, employees and agents who may also have a need\nto know the Confidentia Information in furtherance of the\nbusiness relationship.\n[**k*] Indicates omission pursuant to a request for confidentia treatment. The omitted text has been filed separately with\nthe S ecurities and E xchange Commission.\nLegal Action Requiring Disclosure. If Recipient is\nrequired by law, rule or regulation, or requested in any\njudicial or administrative proceeding or by any\ngovernmental or regulatory authority, to disclose the\nConfidential Information, Recipient shall give Discloser\nprompt notice of such request so that Discloser may seek\nan appropriate protective order or similar protective\nmeasure. Jpon Discloser's written request R ecipient shall,\n1.\nat Discloser's expense, cooperate with Discloser in\nseeking such order or similar protective measure. If\nR ecipient is nonetheless compelled to disclose the\nConfidential Information, Recipient shall disclose only that\nportion of the Confidential Information, which Recipient is\nlegally required to disclose and upon Discloser's request\nand expense, shall use reasonable efforts to obtain\nassurances that confidential treatment will be accorded to\nsuch Confidential Information to the extent such\nassurances are available.\nReturn Or Destruction Of Confidential Information.\nR ecipient is hereby authorized to make only the number of\ncopies of the Confidentia Information necessary to\ndisseminate the Confidential Information to those who are\nentitled to have access to it, and ensure that all\nconfidentiality notices set forth on the Confidential\n2.\nInformation are reproduced in full on such copies. At the\nwritten request of Discloser, Recipient agrees to return or,\nat Discloser's sole discretion, destroy all materials in its\npossession and control, which contain any Confidential\nInformation and shall, at Discloser's written request, certify\nin writing to Discloser that all copies (in any form or media)\nhave been destroyed or returned to Discloser.\nLimitation On Use. Recipient shall use the Confidentia\nInformation only in connection with the furtherance of the\nbusiness relationship between the parties, and R ecipient\n3.\nshall make no further use, in whole or in part, of any\nConfidentia Information. However, nothing in this\nAgreement shall restrict Discloser from using, disclosing,\nor disseminating its own Confidential Information in any\nway.\nInjunctive Relief. Each party acknowledges that\nunauthorized disclosure or use of the Confidential\nInformation by Recipient may cause irreparable harm and\ndamage to the business of Discloser which may be difficult\nto ascertain and which may not be adequately\n4.\ncompensated by damages at law. Therefore, each party\nagrees that, in the event of a breach or threatened breach\nof the terms of this Agreement, Discloser shall be entitled\nto an injunction prohibiting any unauthorized disclosure or\nuse of its Confidential Information. Any such injunctive\nrelief shall be in addition to, and not in lieu of, any\nappropriate monetary damages.\nTerm of Confidentiality. Recipient shall maintain the\nConfidential Information III accordance with this\n5.\nAgreement for a period of five (5) years from the date of\ndisclosure.\nValidity. In the event of the invalidity or unenforceability of\nany provision of this Agreement under applicable law, the\n6. parties agree that such invalidity or unenforceability shall\nnot affect the validity or enforceability of the remaining\nportions of this Agreement.\n[***] Indicates omission pursuant to a request for confidential treatment. The omitted text has been filed separately with\nthe ecurities and Exchange Commission.\nAssignment. This Agreement shall not be assigned by\neither party without the prior written consent of the other\nparty, and any purported assignment without such consent\nshall be void. This approval requirement shall not apply to\nthe assignment to any successor corporation in the event\n1.\nof a merger or acquisition. In addition, the CDW\nContracting Party shall have the right without consent, to\nassign any or all of its rights and obligations under this\nAgreement to any of its affiliates. Subject to the foregoing,\nthis Agreement shall be binding upon and inure to the\nbenefit of the parties' successors in interest.\nMiscellaneous. This Agreement constitutes the entire\nagreement between the parties with respect to the subject\nmatter hereof, and shal supersede all previous\ncommunications, representations, understandings, and\nagreements, either ora or written, between the parties\nthereof. This Agreement may not be changed or modified\nexcept by a written agreement signed by the parties\nhereto. This Agreement shall be governed by and\n2.\nconstrued in accordance with the laws of the State of\nlllinois without regard to its conflicts of law rules. Any\naction arising out of a dispute between the parties shal be\nbrought in the courts located in Cook County, lllinois and\neach party consents to the jurisdiction of the federal and\nstate courts located in Cook County, lllinois and submits to\nthe jurisdiction thereof and waives the right to change\nvenue.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized officers as of\nthe date and year first set forth above.\nPROMARK TECHNOLOGY, INC.\nTHE CDW CONTRACTING PARTY\nBy:\nBy:\nName Dale R. Foster\nName\nTitle: President\nTitle:\nAddress: 10810 Guilford Road, Suite 101 Address:\nAddress:\nAnnapolis J unction, MD 20701	MUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement is made and entered into this 31st day of May , 2005 by and between the undersigned (the\n"CDW Contracting Party") and Promark Technology, Inc. under the following terms and conditions:\n1.\nNature and Purpose. The parties to this Agreement desire\nto engage in certain business arrangements and/or\ncontractual relationships which may involve the disclosure\nof financial, proprietary, competitively sensitive, and/or\nmarket sensitive information and/or contain trade secrets.\nThe purpose of this Agreement is to define their rights and\nobligations with respect to such information. This\nAgreement does not obligate either party to disclose any\ninformation to the other or to enter into any other\nagreement or arrangement, nor shall it be construed as\ngranting any rights by license or otherwise in any trade\nsecrets or other intellectual property rights of either party.\nAs provided for herein, the parties' obligations under this\nAgreement shall survive the termination of their business\narrangements and/or contractual relationships, regardless\nof the manner of such termination.\n2.\nConfidential Information. Either party ("Discloser") may at\nits option make available to the other party ("Recipient") in\nthe performance of this Agreement information of a\nconfidential or proprietary nature to such party, including\ninformation of its affiliates or of a third party (hereinafter\nreferred to as "Confidential Information"). As used in this\nAgreement, the Confidential Information shall mean any\ninformation or data in oral and/or written form which\nRecipient knows or has reason to know is Confidential\nInformation and which is disclosed in connection with this\nAgreement or which Recipient may have access to in\nconnection with this Agreement, including but not limited to\nbusiness and marketing plans, strategic alliances, cost or\npricing data, the identities of customers and prospective\ncustomers. To the extent practicable, Confidential\nInformation shall be clearly identified or labeled as such at\nthe time of disclosure or as promptly thereafter as\npossible, however, failure to so identify or label such\nConfidential Information shall not be evidence that such\ninformation is not proprietary or protectable. Confidential\nInformation shall not include any information which (a) was\nrightfully in the possession of Recipient prior to disclosure\nby Discloser; (b) was or is independently developed by\nRecipient without use of the Confidential Information; (c) is\nnow or hereafter becomes available to the public other\nthan as a result of disclosure by Recipient in violation of\nthis Agreement; or (d) becomes available to Recipient on a\nnon-confidential basis from a source other than Discloser\nand such source was under no obligation to Discloser to\nkeep such information confidential.\n3.\nDegree of Care. Recipient shall maintain the Confidential\nInformation using the same degree of care as it uses to\nprotect its own confidential and proprietary information but\nin any case using no less than a reasonable degree of\ncare. In addition, Recipient shall not use the Confidential\nInformation received from Discloser for its own benefit or,\nexcept as expressly provided for herein, disclose the\nConfidential Information to third parties without the prior\nwritten consent of an authorized representative of\nDiscloser.\n4.\nDisclosure. Recipient agrees to disclose the Confidential\nInformation only to its directors, officers, employees,\nagents, independent contractors and consultants who\nhave a need to know the Confidential Information as\nrequired in furtherance of the objectives of the business\nrelationship between the parties, and with respect to\nindependent contractors and consultants, only those who\nhave agreed to substantially similar non-disclosure\nobligations as those contained herein. Notwithstanding the\nforegoing, the CDW Contracting Party may disclose the\nConfidential Information to its affiliates and their directors,\nofficers, employees and agents who may also have a need\nto know the Confidential Information in furtherance of the\nbusiness relationship.\n[***] – Indicates omission pursuant to a request for confidential treatment. The omitted text has been filed separately with\nthe Securities and Exchange Commission.\n1.\nLegal Action Requiring Disclosure. If Recipient is\nrequired by law, rule or regulation, or requested in any\njudicial or administrative proceeding or by any\ngovernmental or regulatory authority, to disclose the\nConfidential Information, Recipient shall give Discloser\nprompt notice of such request so that Discloser may seek\nan appropriate protective order or similar protective\nmeasure. Upon Discloser's written request Recipient shall,\nat Discloser's expense, cooperate with Discloser in\nseeking such order or similar protective measure. If\nRecipient is nonetheless compelled to disclose the\nConfidential Information, Recipient shall disclose only that\nportion of the Confidential Information, which Recipient is\nlegally required to disclose and upon Discloser's request\nand expense, shall use reasonable efforts to obtain\nassurances that confidential treatment will be accorded to\nsuch Confidential Information to the extent such\nassurances are available.\n2.\nReturn Or Destruction Of Confidential Information.\nRecipient is hereby authorized to make only the number of\ncopies of the Confidential Information necessary to\ndisseminate the Confidential Information to those who are\nentitled to have access to it, and ensure that all\nconfidentiality notices set forth on the Confidential\nInformation are reproduced in full on such copies. At the\nwritten request of Discloser, Recipient agrees to return or,\nat Discloser's sole discretion, destroy all materials in its\npossession and control, which contain any Confidential\nInformation and shall, at Discloser's written request, certify\nin writing to Discloser that all copies (in any form or media)\nhave been destroyed or returned to Discloser.\n3.\nLimitation On Use. Recipient shall use the Confidential\nInformation only in connection with the furtherance of the\nbusiness relationship between the parties, and Recipient\nshall make no further use, in whole or in part, of any\nConfidential Information. However, nothing in this\nAgreement shall restrict Discloser from using, disclosing,\nor disseminating its own Confidential Information in any\nway.\n4.\nInjunctive Relief. Each party acknowledges that\nunauthorized disclosure or use of the Confidential\nInformation by Recipient may cause irreparable harm and\ndamage to the business of Discloser which may be difficult\nto ascertain and which may not be adequately\ncompensated by damages at law. Therefore, each party\nagrees that, in the event of a breach or threatened breach\nof the terms of this Agreement, Discloser shall be entitled\nto an injunction prohibiting any unauthorized disclosure or\nuse of its Confidential Information. Any such injunctive\nrelief shall be in addition to, and not in lieu of, any\nappropriate monetary damages.\n5.\nTerm of Confidentiality. Recipient shall maintain the\nConfidential Information III accordance with this\nAgreement for a period of five (5) years from the date of\ndisclosure.\n6.\nValidity. In the event of the invalidity or unenforceability of\nany provision of this Agreement under applicable law, the\nparties agree that such invalidity or unenforceability shall\nnot affect the validity or enforceability of the remaining\nportions of this Agreement.\n[***] – Indicates omission pursuant to a request for confidential treatment. The omitted text has been filed separately with\nthe Securities and Exchange Commission.\n1.\nAssignment. This Agreement shall not be assigned by\neither party without the prior written consent of the other\nparty, and any purported assignment without such consent\nshall be void. This approval requirement shall not apply to\nthe assignment to any successor corporation in the event\nof a merger or acquisition. In addition, the CDW\nContracting Party shall have the right, without consent, to\nassign any or all of its rights and obligations under this\nAgreement to any of its affiliates. Subject to the foregoing,\nthis Agreement shall be binding upon and inure to the\nbenefit of the parties' successors in interest.\n2.\nMiscellaneous. This Agreement constitutes the entire\nagreement between the parties with respect to the subject\nmatter hereof, and shall supersede all previous\ncommunications, representations, understandings, and\nagreements, either oral or written, between the parties\nthereof. This Agreement may not be changed or modified\nexcept by a written agreement signed by the parties\nhereto. This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of\nIllinois without regard to its conflicts of law rules. Any\naction arising out of a dispute between the parties shall be\nbrought in the courts located in Cook County, Illinois and\neach party consents to the jurisdiction of the federal and\nstate courts located in Cook County, Illinois and submits to\nthe jurisdiction thereof and waives the right to change\nvenue.\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized officers as of\nthe date and year first set forth above.\nPROMARK TECHNOLOGY, INC.\nTHE CDW CONTRACTING PARTY\nBy:\nBy:\nName : Dale R. Foster\nName :\nTitle: President\nTitle:\nAddress: 10810 Guilford Road, Suite 101 Address:\nAddress:\nAnnapolis Junction, MD 20701
+376f9746de69416a9561e92517c356ee.pdf	effective_date jurisdiction party term	EX-10.32 23 c15909a1exv10w32.htm NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.32\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\n(Joseph Chalhoub)\nThis NON-COMPETITION AND NON-DISCLOSURE AGREEMENT is entered into this 24th day of August, 1999, by and between\nJoseph Chalhoub, a resident of Westmount, Quebec (“Executive”), and Heritage-Crystal Clean, LLC, an Indiana limited liability company\n(“Crystal Clean”);\nWITNESSETH:\nWHEREAS, Executive is a Unit holder and Member of Crystal Clean and serves as its President and Chief Executive Officer and as a result\nof his positions with Crystal Clean, Executive has access to and knowledge of all of Crystal Clean’s business information and confidential data;\nand\nWHEREAS, Executive’s right to subscribe for and receive ownership of Units in Crystal Clean is expressly conditioned upon Executive’s\nentering into an Executive Employment Agreement (“Employment Agreement”) and this Non-Competition and Non-Disclosure Agreement;\nNOW THEREFORE, in pursuant of the above and in consideration of the terms and conditions contained herein and for other good and\nvaluable considerations, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:\n(1) Consideration. Executive acknowledges that the consideration received by Executive under the Subscription Agreement and the\nEmployment Agreement and otherwise resulting from the agreement of The Heritage Group, an Indiana general partnership, and certain of its\naffiliates, partners and their beneficiaries (collectively, “Heritage”) to organize Crystal Clean, is good and sufficient consideration for Executive’s\ncovenants, agreements and forebearances contained in this Agreement and that Heritage would not have organized Crystal Clean and allowed\nExecutive to subscribe for Units but for Executive’s entering into this Agreement.\n(2) Non-Disclosure. Executive will not, at any time following this date except as required by the duties of his employment with Crystal Clean\nand/or its subsidiaries, disclose to any person, firm or corporation, any confidential information concerning Crystal Clean or its assets or\nbusiness, except as may be required by governmental law or regulation or in legal proceedings to which Executive is subpoenaed to give\ntestimony, in which event Executive shall notify Crystal Clean immediately upon learning that Executive may be required or compelled to\ndivulge any confidential information. For purposes of this Agreement, “confidential information” consists of that proprietary information subject\nto protection under the Uniform Trade Secrets Act and includes, without limitation, Crystal Clean’s customer list and price information for all\ncustomers and other intangible property to be transferred to Crystal Clean by Heritage. “Confidential information” does not include\n1\ninformation in the public domain through no fault of the Executive or reasonably discoverable without access to internal documents or\ninformation.\n(3) Non Competition. During the term of Executives’s employment with Crystal Clean, and for a period of one (1) year from the date of\nExecutive’s Termination of Employment under the Employment Agreement (“Restricted Period”), Executive will not, other than for the\nexclusive benefit of Crystal Clean, engage in the Business (as defined below) in the geographical area in which Crystal Clean conducts Business\nduring the term of Executive’s employment with Crystal Clean (“Territory”), whether as an employee, owner (except as provided below in\nSection 5), member, manager, consultant, agent, partner, service provider or in any other capacity. For purposes of this Agreement, the term\n“Business” means the business of providing environmental and fluid management services to small and medium sized customers and providing\nparts washing and drum disposal services (“Business”).\n(4) Non-Solicitation; Non-Piracy. During the Restricted Period, Executive will not personally call on any person or business organization\nwhich was a customer of Crystal Clean during the Executive’s term of employment for Business within the Territory. Further, during the\nRestricted Period, Executive will not, without the consent of Crystal Clean, for the Executive’s own account or for any third party, solicit or\nendeavor to entice away, offer employment to or employ any person who was employed by Crystal Clean during the twelve (12) month period\nimmediately before the termination of Executive’s employment with Crystal Clean.\n(5) Other Services. Executive may, without causing Executive to be in breach of this Agreement, enter into other business endeavors during\nthe Restricted Period or may engage in the Business outside of the Territory; provided that Executive’s other permitted services will not be\ndeemed to allow Executive to use or disclose “Confidential Information” in contravention of this Agreement or other agreements between\nExecutive and Crystal Clean. Executive may continue to own shares of Clean Harbors, Inc. in an amount not in excess often percent (10%) of the\nissued and outstanding common equity or voting interests.\n(6) Default and Remedies. Executive acknowledges and agrees that, if Executive directly or indirectly breaches, violates, or fails to perform\nfully its obligations under this Agreement (“Default”), each Default shall cause immediate and irreparable harm to Crystal Clean, in a manner\nwhich cannot be adequately compensated in damages. Crystal Clean and Executive agree that in the event of any such Default, Crystal Clean, in\naddition to all other available remedies at law or in equity, may, insofar as Executive may be concerned, be entitled to temporary, preliminary and\npermanent injunctive relief to restrain such Default(s) by Executive or others acting in concert with Executive, and to all of its costs, expenses,\nand reasonable attorneys’ fees incurred in any enforcement proceedings in which Crystal Clean prevails in whole or in part. Nothing contained\nherein shall restrict or limit in any manner Crystal Clean’s right to obtain any form of relief, legal or equitable, in an action brought to enforce\nCrystal Clean’s rights.\n2\n(7) Severability. All provisions of this Agreement are intended to be severable. Each provision of this Agreement constitutes a separate and\ndistinct covenant. In the event any term, provision, or restriction in this Agreement is held to be illegal, invalid or unenforceable in any respect,\nsuch finding shall in no way affect the legality, validity, or enforceability of all other provisions of this Agreement. Crystal Clean and Executive\nagree that any such unenforceable term, provision or restriction shall be deemed modified to the extent necessary to permit its enforcement to the\nmaximum extent permitted by applicable law.\n(8) No Waiver of Rights. Neither any failure or any delay on the part of any party in exercising its rights shall operate as a waiver, nor shall a\nsingle or partial exercise preclude any further exercise of any right, power, or privilege by any party.\n(9) Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State\nof Indiana. The state and federal courts located in Marion County, Indiana, or Cook County, Illinois shall be the courts of exclusive jurisdiction\nand venue over any enforcement of this Agreement.\n(10) Benefit. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and assigns of\nthe parties hereto. Executive hereby agrees that the provisions of this Agreement may be assigned in whole or in part by Crystal Clean, and\nExecutive hereby consents to such assignment and agrees to be bound to the assignee under all of the terms and conditions of this Agreement.\n(11) Notices. All notices and communications hereunder shall be in writing and shall be deemed to be duly given if delivered in accordance\nwith Section 17 of the Employment Agreement.\n(12) Modification. No waiver, alteration or modification of any provision of this Agreement will be valid unless made in writing and signed\nby all parties hereto. The waiver of any breach or default shall not be deemed to waive any subsequent breach or default.\n(13) Entire Agreement. This Agreement constitutes the entire agreement of the parties relative to the subject matter and supersedes any prior\nunderstanding, agreements or representations by or among the parties, written or oral with regard to the subject matter of this Agreement.\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Non-Disclosure Agreement on the day and year first above\nwritten.\n3\nExecutive\n/s/ Joseph Chalhoub\nJoseph Chalhoub\nHeritage-Crystal Clean, LLC:\nBy: /s/ Fred M. Fehsenfeld, Jr.\nFred M. Fehsenfeld, Jr., Chairman\n4	EX-10.32 23 c15909alexv10w32.htm NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.32\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\n(Joseph Chalhoub)\nThis NON-COMPETITION AND NON-DISCLOSURE AGREEMENT is entered into this 24th day of August, 1999, by and between\nJoseph Chalhoub, a resident of Westmount, Quebec (“Executive”), and Heritage-Crystal Clean, LL.C, an Indiana limited liability company\n(“Crystal Clean™);\nWITNESSETH:\nWHEREAS, Executive is a Unit holder and Member of Crystal Clean and serves as its President and Chief Executive Officer and as a result\nof his positions with Crystal Clean, Executive has access to and knowledge of all of Crystal Clean’s business information and confidential data;\nand\nWHEREAS, Executive’s right to subscribe for and receive ownership of Units in Crystal Clean is expressly conditioned upon Executive’s\nentering into an Executive Employment Agreement (“Employment Agreement”) and this Non-Competition and Non-Disclosure Agreement;\nNOW THEREFORE, in pursuant of the above and in consideration of the terms and conditions contained herein and for other good and\nvaluable considerations, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:\n(1) Consideration. Executive acknowledges that the consideration received by Executive under the Subscription Agreement and the\nEmployment Agreement and otherwise resulting from the agreement of The Heritage Group, an Indiana general partnership, and certain of its\naffiliates, partners and their beneficiaries (collectively, “Heritage”) to organize Crystal Clean, is good and sufficient consideration for Executive’s\ncovenants, agreements and forebearances contained in this Agreement and that Heritage would not have organized Crystal Clean and allowed\nExecutive to subscribe for Units but for Executive’s entering into this Agreement.\n(2) Non-Disclosure. Executive will not, at any time following this date except as required by the duties of his employment with Crystal Clean\nand/or its subsidiaries, disclose to any person, firm or corporation, any confidential information concerning Crystal Clean or its assets or\nbusiness, except as may be required by governmental law or regulation or in legal proceedings to which Executive is subpoenaed to give\ntestimony, in which event Executive shall notify Crystal Clean immediately upon learning that Executive may be required or compelled to\ndivulge any confidential information. For purposes of this Agreement, “confidential information” consists of that proprietary information subject\nto protection under the Uniform Trade Secrets Act and includes, without limitation, Crystal Clean’s customer list and price information for all\ncustomers and other intangible property to be transferred to Crystal Clean by Heritage. “Confidential information” does not include\n1\ninformation in the public domain through no fault of the Executive or reasonably discoverable without access to internal documents or\ninformation.\n(3) Non Competition. During the term of Executives’s employment with Crystal Clean, and for a period of one (1) year from the date of\nExecutive’s Termination of Employment under the Employment Agreement (“Restricted Period”), Executive will not, other than for the\nexclusive benefit of Crystal Clean, engage in the Business (as defined below) in the geographical area in which Crystal Clean conducts Business\nduring the term of Executive’s employment with Crystal Clean (“Territory”), whether as an employee, owner (except as provided below in\nSection 5), member, manager, consultant, agent, partner, service provider or in any other capacity. For purposes of this Agreement, the term\n“Business” means the business of providing environmental and fluid management services to small and medium sized customers and providing\nparts washing and drum disposal services (“Business”).\n(4) Non-Solicitation; Nen-Piracy. During the Restricted Period, Executive will not personally call on any person or business organization\nwhich was a customer of Crystal Clean during the Executive’s term of employment for Business within the Territory. Further, during the\nRestricted Period, Executive will not, without the consent of Crystal Clean, for the Executive’s own account or for any third party, solicit or\nendeavor to entice away, offer employment to or employ any person who was employed by Crystal Clean during the twelve (12) month period\nimmediately before the termination of Executive’s employment with Crystal Clean.\n(5) Other Services. Executive may, without causing Executive to be in breach of this Agreement, enter into other business endeavors during\nthe Restricted Period or may engage in the Business outside of the Territory; provided that Executive’s other permitted services will not be\ndeemed to allow Executive to use or disclose “Confidential Information” in contravention of this Agreement or other agreements between\nExecutive and Crystal Clean. Executive may continue to own shares of Clean Harbors, Inc. in an amount not in excess often percent (10%) of the\nissued and outstanding common equity or voting interests.\n(6) Default and Remedies. Executive acknowledges and agrees that, if Executive directly or indirectly breaches, violates, or fails to perform\nfully its obligations under this Agreement (“Default”), each Default shall cause immediate and irreparable harm to Crystal Clean, in a manner\nwhich cannot be adequately compensated in damages. Crystal Clean and Executive agree that in the event of any such Default, Crystal Clean, in\naddition to all other available remedies at law or in equity, may, insofar as Executive may be concerned, be entitled to temporary, preliminary and\npermanent injunctive relief to restrain such Default(s) by Executive or others acting in concert with Executive, and to all of its costs, expenses,\nand reasonable attorneys’ fees incurred in any enforcement proceedings in which Crystal Clean prevails in whole or in part. Nothing contained\nherein shall restrict or limit in any manner Crystal Clean’s right to obtain any form of relief, legal or equitable, in an action brought to enforce\nCrystal Clean’s rights.\n(7) Severability. All provisions of this Agreement are intended to be severable. Each provision of this Agreement constitutes a separate and\ndistinct covenant. In the event any term, provision, or restriction in this Agreement is held to be illegal, invalid or unenforceable in any respect,\nsuch finding shall in no way affect the legality, validity, or enforceability of all other provisions of this Agreement. Crystal Clean and Executive\nagree that any such unenforceable term, provision or restriction shall be deemed modified to the extent necessary to permit its enforcement to the\nmaximum extent permitted by applicable law.\n(8) No Waiver of Rights. Neither any failure or any delay on the part of any party in exercising its rights shall operate as a waiver, nor shall a\nsingle or partial exercise preclude any further exercise of any right, power, or privilege by any party.\n(9) Governing I.aw; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State\nof Indiana. The state and federal courts located in Marion County, Indiana, or Cook County, Illinois shall be the courts of exclusive jurisdiction\nand venue over any enforcement of this Agreement.\n(10) Benefit. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and assigns of\nthe parties hereto. Executive hereby agrees that the provisions of this Agreement may be assigned in whole or in part by Crystal Clean, and\nExecutive hereby consents to such assignment and agrees to be bound to the assignee under all of the terms and conditions of this Agreement.\n(11) Notices. All notices and communications hereunder shall be in writing and shall be deemed to be duly given if delivered in accordance\nwith Section 17 of the Employment Agreement.\n \n(12) Modification. No waiver, alteration or modification of any provision of this Agreement will be valid unless made in writing and signed\nby all parties hereto. The waiver of any breach or default shall not be deemed to waive any subsequent breach or default.\n(13) Entire Agreement. This Agreement constitutes the entire agreement of the parties relative to the subject matter and supersedes any prior\nunderstanding, agreements or representations by or among the parties, written or oral with regard to the subject matter of this Agreement.\nIN WITNESS WHEREQF, the parties have executed this Non-Competition and Non-Disclosure Agreement on the day and year first above\nwritten.\nExecutive\n/s/ Joseph Chalhoub\nJoseph Chalhoub\nHeritage-Crystal Clean, LLC:\nBy: /s/ Fred M. Fehsenfeld, Jr.\nFred M. Fehsenfeld, Jr., Chairman\n4	EX-10.32 23 c15909alexv10w32.htm NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.32\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\n(Joseph Chalhoub)\nThis NON-COMPETITION AND NON-DISCLOSURE AGREEMENT is entered into this 24th day of August, 1999, by and between\nJoseph Chalhoub, a resident of Westmount, Quebec ("Executive"), and Heritage-Crystal Clean, LLC, an Indiana limited liability company\n("Crystal Clean");\nWITNESSETH:\nWHEREAS, Executive is a Unit holder and Member of Crystal Clean and serves as its President and Chief Executive Officer and as a result\nof his positions with Crystal Clean, Executive has access to and knowledge of all of Crystal Clean's business information and confidential data;\nand\nWHEREAS, Executive's right to subscribe for and receive ownership of Units in Crystal Clean is expressly conditioned upon Executive's\nentering into an Executive Employment Agreement ("Employment Agreement") and this Non-Competition and Non-Disclosure Agreement;\nNOW THEREFORE, in pursuant of the above and in consideration of the terms and conditions contained herein and for other good and\nvaluable considerations, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:\n(1) Consideration. Executive acknowledges that the consideration received by Executive under the Subscription Agreement and the\nEmployment Agreement and otherwise resulting from the agreement of The Heritage Group, an Indiana general partnership, and certain of its\naffiliates, partners and their beneficiaries (collectively, "Heritage") to organize Crystal Clean, is good and sufficient consideration for Executive's\ncovenants, agreements and forebearances contained in this Agreement and that Heritage would not have organized Crystal Clean and allowed\nExecutive to subscribe for Units but for Executive's entering into this Agreement.\n(2) Non-Disclosure. Executive will not, at any time following this date except as required by the duties of his employment with Crystal Clean\nand/or its subsidiaries, disclose to any person, firm or corporation, any confidential information concerning Crystal Clean or its assets or\nbusiness, except as may be required by governmental law or regulation or in legal proceedings to which Executive is subpoenaed to give\ntestimony, in which event Executive shall notify Crystal Clean immediately upon learning that Executive may be required or compelled to\ndivulge any confidential information. For purposes of this Agreement, "confidential information" consists of that proprietary information subject\nto protection under the Uniform Trade Secrets Act and includes, without limitation, Crystal Clean's customer list and price information for\nall\ncustomers and other intangible property to be transferred to Crystal Clean by Heritage. "Confidential information" does not include\n1\ninformation in the public domain through no fault of the Executive or reasonably discoverable without access to internal documents or\ninformation.\n(3) Non Competition. During the term of Executives's employment with Crystal Clean, and for a period of one (1) year from the date\nof\nExecutive's Termination of Employment under the Employment Agreement ("Restricted Period"), Executive will not, other than for the\nexclusive benefit of Crystal Clean, engage in the Business (as defined below) in the geographical area in which Crystal Clean conducts Business\nduring the term of Executive's employment with Crystal Clean ("Territory"), whether as an employee, owner (except as provided below in\nSection 5), member, manager, consultant, agent, partner, service provider or in any other capacity. For purposes of this Agreement, the term\n"Business" means the business of providing environmental and fluid management services to small and medium sized customers and providing\nparts washing and drum disposal services ("Business").\n(4) Non-Solicitation; Non-Piracy. During the Restricted Period, Executive will not personally call on any person or business organization\nwhich was a customer of Crystal Clean during the Executive's term of employment for Business within the Territory. Further, during the\nRestricted Period, Executive will not, without the consent of Crystal Clean, for the Executive's own account or for any third party, solicit or\nendeavor to entice away, offer employment to or employ any person who was employed by Crystal Clean during the twelve (12) month period\nimmediately before the termination of Executive's employment with Crystal Clean.\n(5) Other Services. Executive may, without causing Executive to be in breach of this Agreement, enter into other business endeavors during\nthe Restricted Period or may engage in the Business outside of the Territory; provided that Executive's other permitted services will not be\ndeemed to allow Executive to use or disclose "Confidential Information" in contravention of this Agreement or other agreements between\nExecutive and Crystal Clean. Executive may continue to own shares of Clean Harbors, Inc. in an amount not in excess often percent (10%) of the\nissued and outstanding common equity or voting interests.\n(6) Default and Remedies. Executive acknowledges and agrees that, if Executive directly or indirectly breaches, violates, or fails to perform\nfully\nits obligations under this Agreement ("Default"), each Default shall cause immediate and irreparable harm to Crystal Clean, in a manner\nwhich cannot be adequately compensated in damages. Crystal Clean and Executive agree that in the event of any such Default, Crystal Clean, in\naddition to all other available remedies at law or in equity, may, insofar as Executive may be concerned, be entitled to temporary, preliminary and\npermanent injunctive relief to restrain such Default(s) by Executive or others acting in concert with Executive, and to all of its costs, expenses,\nand reasonable attorneys' fees incurred in any enforcement proceedings in which Crystal Clean prevails in whole or in part. Nothing contained\nherein shall restrict or limit in any manner Crystal Clean's right to obtain any form of relief, legal or equitable, in an action brought to enforce\nCrystal Clean's rights.\n2\n(7) Severability.. All provisions of this Agreement are intended to be severable. Each provision of this Agreement constitutes a separate and\ndistinct covenant. In the event any term, provision, or restriction in this Agreement is held to be illegal, invalid or unenforceable in any respect,\nsuch finding shall in no way affect the legality, validity, or enforceability of all other provisions of this Agreement. Crystal Clean and Executive\nagree that any such unenforceable term, provision or restriction shall be deemed modified to the extent necessary to permit its enforcement to the\nmaximum extent permitted by applicable law.\n(8) No Waiver of Rights. Neither any failure or any delay on the part of any party in exercising its rights shall operate as a waiver, nor shall a\nsingle or partial exercise preclude any further exercise of any right, power, or privilege by any party.\n(9) Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State\nof Indiana. The state and federal courts located in Marion County, Indiana, or Cook County, Illinois shall be the courts of exclusive jurisdiction\nand venue over any enforcement of this Agreement.\n(10) Benefit. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and assigns of\nthe parties hereto. Executive hereby agrees that the provisions of this Agreement may be assigned in whole or in part by Crystal Clean, and\nExecutive hereby consents to such assignment and agrees to be bound to the assignee under all of the terms and conditions of this Agreement.\n(11) Notices. All notices and communications hereunder shall be in writing and shall be deemed to be duly given if delivered in accordance\nwith Section 17 of the Employment Agreement.\n(12) Modification. No waiver, alteration or modification of any provision of this Agreement will be valid unless made in writing and signed\nby all parties hereto. The waiver of any breach or default shall not be deemed to waive any subsequent breach or default.\n(13) Entire Agreement. This Agreement constitutes the entire agreement of the parties relative to the subject matter and supersedes any prior\nunderstanding, agreements or representations by or among the parties, written or oral with regard to the subject matter of this Agreement.\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Non-Disclosure Agreement on the day and year first above\nwritten.\n3\nExecutive\n/s/ Joseph Chalhoub\nJoseph Chalhoub\nHeritage-Crystal Clean, LLC:\nBy: /s/ Fred M. Fehsenfeld, Jr.\nFred M. Fehsenfeld, Jr., Chairman\n4	EX-10.32 23 c15909a1exv10w32.htm NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.32\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\n(Joseph Chalhoub)\nThis NON-COMPETITION AND NON-DISCLOSURE AGREEMENT is entered into this 24th day of August, 1999, by and between\nJoseph Chalhoub, a resident of Westmount, Quebec (“Executive”), and Heritage-Crystal Clean, LLC, an Indiana limited liability company\n(“Crystal Clean”);\nWITNESSETH:\nWHEREAS, Executive is a Unit holder and Member of Crystal Clean and serves as its President and Chief Executive Officer and as a result\nof his positions with Crystal Clean, Executive has access to and knowledge of all of Crystal Clean’s business information and confidential data;\nand\nWHEREAS, Executive’s right to subscribe for and receive ownership of Units in Crystal Clean is expressly conditioned upon Executive’s\nentering into an Executive Employment Agreement (“Employment Agreement”) and this Non-Competition and Non-Disclosure Agreement;\nNOW THEREFORE, in pursuant of the above and in consideration of the terms and conditions contained herein and for other good and\nvaluable considerations, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:\n(1) Consideration. Executive acknowledges that the consideration received by Executive under the Subscription Agreement and the\nEmployment Agreement and otherwise resulting from the agreement of The Heritage Group, an Indiana general partnership, and certain of its\naffiliates, partners and their beneficiaries (collectively, “Heritage”) to organize Crystal Clean, is good and sufficient consideration for Executive’s\ncovenants, agreements and forebearances contained in this Agreement and that Heritage would not have organized Crystal Clean and allowed\nExecutive to subscribe for Units but for Executive’s entering into this Agreement.\n(2) Non-Disclosure. Executive will not, at any time following this date except as required by the duties of his employment with Crystal Clean\nand/or its subsidiaries, disclose to any person, firm or corporation, any confidential information concerning Crystal Clean or its assets or\nbusiness, except as may be required by governmental law or regulation or in legal proceedings to which Executive is subpoenaed to give\ntestimony, in which event Executive shall notify Crystal Clean immediately upon learning that Executive may be required or compelled to\ndivulge any confidential information. For purposes of this Agreement, “confidential information” consists of that proprietary information subject\nto protection under the Uniform Trade Secrets Act and includes, without limitation, Crystal Clean’s customer list and price information for all\ncustomers and other intangible property to be transferred to Crystal Clean by Heritage. “Confidential information” does not include\n1\ninformation in the public domain through no fault of the Executive or reasonably discoverable without access to internal documents or\ninformation.\n(3) Non Competition. During the term of Executives’s employment with Crystal Clean, and for a period of one (1) year from the date of\nExecutive’s Termination of Employment under the Employment Agreement (“Restricted Period”), Executive will not, other than for the\nexclusive benefit of Crystal Clean, engage in the Business (as defined below) in the geographical area in which Crystal Clean conducts Business\nduring the term of Executive’s employment with Crystal Clean (“Territory”), whether as an employee, owner (except as provided below in\nSection 5), member, manager, consultant, agent, partner, service provider or in any other capacity. For purposes of this Agreement, the term\n“Business” means the business of providing environmental and fluid management services to small and medium sized customers and providing\nparts washing and drum disposal services (“Business”).\n(4) Non-Solicitation; Non-Piracy. During the Restricted Period, Executive will not personally call on any person or business organization\nwhich was a customer of Crystal Clean during the Executive’s term of employment for Business within the Territory. Further, during the\nRestricted Period, Executive will not, without the consent of Crystal Clean, for the Executive’s own account or for any third party, solicit or\nendeavor to entice away, offer employment to or employ any person who was employed by Crystal Clean during the twelve (12) month period\nimmediately before the termination of Executive’s employment with Crystal Clean.\n(5) Other Services. Executive may, without causing Executive to be in breach of this Agreement, enter into other business endeavors during\nthe Restricted Period or may engage in the Business outside of the Territory; provided that Executive’s other permitted services will not be\ndeemed to allow Executive to use or disclose “Confidential Information” in contravention of this Agreement or other agreements between\nExecutive and Crystal Clean. Executive may continue to own shares of Clean Harbors, Inc. in an amount not in excess often percent (10%) of the\nissued and outstanding common equity or voting interests.\n(6) Default and Remedies. Executive acknowledges and agrees that, if Executive directly or indirectly breaches, violates, or fails to perform\nfully its obligations under this Agreement (“Default”), each Default shall cause immediate and irreparable harm to Crystal Clean, in a manner\nwhich cannot be adequately compensated in damages. Crystal Clean and Executive agree that in the event of any such Default, Crystal Clean, in\naddition to all other available remedies at law or in equity, may, insofar as Executive may be concerned, be entitled to temporary, preliminary and\npermanent injunctive relief to restrain such Default(s) by Executive or others acting in concert with Executive, and to all of its costs, expenses,\nand reasonable attorneys’ fees incurred in any enforcement proceedings in which Crystal Clean prevails in whole or in part. Nothing contained\nherein shall restrict or limit in any manner Crystal Clean’s right to obtain any form of relief, legal or equitable, in an action brought to enforce\nCrystal Clean’s rights.\n2\n(7) Severability. All provisions of this Agreement are intended to be severable. Each provision of this Agreement constitutes a separate and\ndistinct covenant. In the event any term, provision, or restriction in this Agreement is held to be illegal, invalid or unenforceable in any respect,\nsuch finding shall in no way affect the legality, validity, or enforceability of all other provisions of this Agreement. Crystal Clean and Executive\nagree that any such unenforceable term, provision or restriction shall be deemed modified to the extent necessary to permit its enforcement to the\nmaximum extent permitted by applicable law.\n(8) No Waiver of Rights. Neither any failure or any delay on the part of any party in exercising its rights shall operate as a waiver, nor shall a\nsingle or partial exercise preclude any further exercise of any right, power, or privilege by any party.\n(9) Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State\nof Indiana. The state and federal courts located in Marion County, Indiana, or Cook County, Illinois shall be the courts of exclusive jurisdiction\nand venue over any enforcement of this Agreement.\n(10) Benefit. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and assigns of\nthe parties hereto. Executive hereby agrees that the provisions of this Agreement may be assigned in whole or in part by Crystal Clean, and\nExecutive hereby consents to such assignment and agrees to be bound to the assignee under all of the terms and conditions of this Agreement.\n(11) Notices. All notices and communications hereunder shall be in writing and shall be deemed to be duly given if delivered in accordance\nwith Section 17 of the Employment Agreement.\n(12) Modification. No waiver, alteration or modification of any provision of this Agreement will be valid unless made in writing and signed\nby all parties hereto. The waiver of any breach or default shall not be deemed to waive any subsequent breach or default.\n(13) Entire Agreement. This Agreement constitutes the entire agreement of the parties relative to the subject matter and supersedes any prior\nunderstanding, agreements or representations by or among the parties, written or oral with regard to the subject matter of this Agreement.\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Non-Disclosure Agreement on the day and year first above\nwritten.\n3\nExecutive\n/s/ Joseph Chalhoub\nJoseph Chalhoub\nHeritage-Crystal Clean, LLC:\nBy: /s/ Fred M. Fehsenfeld, Jr.\nFred M. Fehsenfeld, Jr., Chairman\n4
+3833e3de6d115e063fe117c09d4104e7.pdf	effective_date jurisdiction party term	EX-10.22 4 dex1022.htm INVENTION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.22\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement is made between VistaPrint USA, Incorporated, a Delaware corporation (hereinafter referred to collectively with its parent\ncompany, affiliates and subsidiaries as the “Company”), and Anne Drapeau (the “Employee”).\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee agree as\nfollows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of the\nCompany. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods, techniques,\nformulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer programs,\ncustomer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will not disclose\nany Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other than in the\nperformance of his/her duties as an employee of the Company) without written approval by an officer of the Company, either during or after his/her\nemployment with the Company.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program\nlistings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee or others,\nwhich shall come into his/her custody or possession, shall be and are the exclusive property of the Company to be used by the Employee only in the\nperformance of his/her duties for the Company. All such materials or copies thereof and all tangible property of the Company in the custody or\npossession of the Employee shall be delivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of his/her\nemployment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such tangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in paragraphs (a)\nand (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of\ninformation, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2. Developments.\n(a) The Employee will make full and prompt disclosure to the Company of all inventions, improvements, discoveries, methods,\ndevelopments, software, graphic designs and works of authorship, whether patentable or not, which are created, made, conceived or reduced to\npractice by him/her or under his/her direction or jointly with others during his/her employment by the Company, whether or not during normal\nworking hours or on the premises of the Company (all of which are collectively referred to in this Agreement as “Developments”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all\nhis/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and development of\nthe Company and which are made and conceived by the Employee not during normal working hours, not on the Company’s premises and not using\nthe Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this Agreement shall be construed\nin accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain classes of inventions made by an\nemployee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the Company agrees falls within such\nclasses. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with respect\nto the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States and foreign\ncountries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent applications,\ndeclarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem necessary or desirable\nin order to protect its rights and interests in any Development. The Employee further agrees that if the Company is unable, after reasonable effort, to\nsecure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to execute any such papers as the\nagent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints each executive officer of the Company\nas his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take any and all actions as the Company may deem\nnecessary or desirable in order to protect its rights and interests in any Development, under the conditions described in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the\nterms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the business of such\nprevious employer or any other party or to refrain from soliciting employees, customers or suppliers of such previous employer or other party. The\nEmployee further represents that his/her performance of all the terms of this Agreement and the performance of his/her duties as an employee of the\nCompany do not and will not breach any agreement with any prior employer or other party to which the Employee is a party (including without\nlimitation any nondisclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the Company to use\nany confidential or proprietary information or material belonging to any previous employer or others.\n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions\nwhich are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such agreements.\n5. No Employment Contract.\nThe Employee understand that this Agreement does not constitute a contract of employment and does not imply that his/her employment will\ncontinue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject\nmatter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed\nby the Employee and an authorized officer of the Company. The Employee agrees that any change or changes in his/her duties, salary or\ncompensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n-2-\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary\nor affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such\ntransfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and are\nconsidered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition to\nsuch other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is\ncommenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the\nCommonwealth of Massachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each\nconsents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nVISTAPRINT USA, INCORPORATED\nDate:\nBy: /s/ Colleen Fuller\nColleen Fuller, Manager Human Resources\nDate:\n/s/ Anne Drapeau\nAnne Drapeau\n-3-	EX-10.22 4 dex1022.htm INVENTION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.22\nINVENTION AND NON-DISCI.OSURE AGREEMENT\nThis Agreement is made between VistaPrint USA, Incorporated, a Delaware corporation (hereinafter referred to collectively with its parent\ncompany, affiliates and subsidiaries as the “Company”), and Anne Drapeau (the “Employee”).\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee agree as\nfollows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information™) is and shall be the exclusive property of the\nCompany. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods, techniques,\nformulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer programs,\ncustomer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will not disclose\nany Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other than in the\nperformance of his/her duties as an employee of the Company) without written approval by an officer of the Company, either during or after his/her\nemployment with the Company.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program\nlistings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee or others,\nwhich shall come into his/her custody or possession, shall be and are the exclusive property of the Company to be used by the Employee only in the\nperformance of his/her duties for the Company. All such materials or copies thereof and all tangible property of the Company in the custody or\npossession of the Employee shall be delivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of his/her\nemployment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such tangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in paragraphs (a)\nand (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of\ninformation, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2. Developments.\n(a) The Employee will make full and prompt disclosure to the Company of all inventions, improvements, discoveries, methods,\ndevelopments, software, graphic designs and works of authorship, whether patentable or not, which are created, made, conceived or reduced to\npractice by him/her or under his/her direction or jointly with others during his/her employment by the Company, whether or not during normal\nworking hours or on the premises of the Company (all of which are collectively referred to in this Agreement as “Developments”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all\nhis/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and development of\nthe Company and which are made and conceived by the Employee not during normal working hours, not on the Company’s premises and not using\nthe Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this Agreement shall be construed\nin accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain classes of inventions made by an\nemployee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the Company agrees falls within such\nclasses. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with respect\nto the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States and foreign\ncountries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent applications,\ndeclarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem necessary or desirable\nin order to protect its rights and interests in any Development. The Employee further agrees that if the Company is unable, after reasonable effort, to\nsecure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to execute any such papers as the\nagent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints each executive officer of the Company\nas his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take any and all actions as the Company may deem\nnecessary or desirable in order to protect its rights and interests in any Development, under the conditions described in this sentence.\n3.  Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the\nterms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the business of such\nprevious employer or any other party or to refrain from soliciting employees, customers or suppliers of such previous employer or other party. The\nEmployee further represents that his/her performance of all the terms of this Agreement and the performance of his/her duties as an employee of the\nCompany do not and will not breach any agreement with any prior employer or other party to which the Employee is a party (including without\nlimitation any nondisclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the Company to use\nany confidential or proprietary information or material belonging to any previous employer or others.\n4.  United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions\nwhich are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such agreements.\n5. No Employment Contract.\nThe Employee understand that this Agreement does not constitute a contract of employment and does not imply that his/her employment will\ncontinue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject\nmatter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed\nby the Employee and an authorized officer of the Company. The Employee agrees that any change or changes in his/her duties, salary or\ncompensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n-\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary\nor affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such\ntransfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and are\nconsidered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition to\nsuch other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is\ncommenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the\nCommonwealth of Massachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each\nconsents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nVISTAPRINT USA, INCORPORATED\nDate: By: /s/ Colleen Fuller\nColleen Fuller, Manager Human Resources\nDate: /s/ Anne Drapeau\nAnne Drapeau	EX-10.22 4 INVENTION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.22\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement is made between VistaPrint USA, Incorporated, a Delaware corporation (hereinafter referred to collectively with its parent\ncompany, affiliates and subsidiaries as the "Company"), and Anne Drapeau (the "Employee").\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee agree as\nfollows:\n1.\nProprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany's business, business relationships or financial affairs (collectively, "Proprietary Information") is and shall be the exclusive property of the\nCompany. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods, techniques,\nformulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer programs,\ncustomer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will not disclose\nany\nProprietary\nInformation\nto\nany\nperson\nor\nentity\nother\nthan\nemployees\nof\nthe\nCompany\nor\nuse\nthe\nsame\nfor\nany\npurposes\n(other\nthan\nin\nthe\nperformance of his/her duties as an employee of the Company) without written approval by an officer of the Company, either during or after his/her\nemployment with the Company.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program\nlistings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee or others,\nwhich\nshall\ncome into his/her custody or possession, shall be and are the exclusive property of the Company to be used by the Employee only in the\nperformance of his/her duties for the Company. All such materials or copies thereof and all tangible property of the Company in the custody or\npossession of the Employee shall be delivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of his/her\nemployment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such tangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in paragraphs (a)\nand (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of\ninformation, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2. Developments.\n(a) The Employee will make full and prompt disclosure to the Company of all inventions, improvements, discoveries, methods,\ndevelopments, software, graphic designs and works of authorship, whether patentable or not, which are created, made, conceived or reduced to\npractice by him/her or under his/her direction or jointly with others during his/her employment by the Company, whether or not during normal\nworking hours or on the premises of the Company (all of which are collectively referred to in this Agreement as "Developments").\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all\nhis/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and development of\nthe Company and which are made and conceived by the Employee not during normal working hours, not on the Company's premises and not using\nthe Company's tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this Agreement shall be construed\nin accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain classes of inventions made by\nan\nemployee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the Company agrees falls within such\nclasses. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with respect\nto the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States and foreign\ncountries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent applications,\ndeclarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem necessary or desirable\nin order to protect its rights and interests in any Development. The Employee further agrees that if the Company is unable, after reasonable effort, to\nsecure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to execute any such papers as the\nagent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints each executive officer of the Company\nas his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take any and all actions as the Company may deem\nnecessary or desirable in order to protect its rights and interests in any Development, under the conditions described in this sentence.\n3.\nOther Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the\nterms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the business of such\nprevious employer or any other party or to refrain from soliciting employees, customers or suppliers of such previous employer or other party. The\nEmployee further represents that his/her performance of all the terms of this Agreement and the performance of his/her duties as an employee of the\nCompany do not and will not breach any agreement with any prior employer or other party to which the Employee is a party (including without\nlimitation any nondisclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the Company to use\nany confidential or proprietary information or material belonging to any previous employer or others.\n4.\nUnited States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions\nwhich are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such agreements.\n5.\nNo Employment Contract.\nThe Employee understand that this Agreement does not constitute a contract of employment and does not imply that his/her employment will\ncontinue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject\nmatter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed\nby the Employee and an authorized officer of the Company. The Employee agrees that any change or changes in his/her duties, salary or\ncompensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee's heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n-2-\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary\nor affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such\ntransfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and are\nconsidered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition to\nsuch other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of\nthe\nCommonwealth of Massachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is\ncommenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the\nCommonwealth of Massachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each\nconsents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nVISTAPRINT USA, INCORPORATED\nDate:\nBy: /s/ Colleen Fuller\nColleen Fuller, Manager Human Resources\nDate:\n/s/ Anne Drapeau\nAnne Drapeau\n-3-	EX-10.22 4 dex1022.htm INVENTION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.22\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement is made between VistaPrint USA, Incorporated, a Delaware corporation (hereinafter referred to collectively with its parent\ncompany, affiliates and subsidiaries as the “Company”), and Anne Drapeau (the “Employee”).\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee agree as\nfollows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of the\nCompany. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods, techniques,\nformulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer programs,\ncustomer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will not disclose\nany Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other than in the\nperformance of his/her duties as an employee of the Company) without written approval by an officer of the Company, either during or after his/her\nemployment with the Company.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program\nlistings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee or others,\nwhich shall come into his/her custody or possession, shall be and are the exclusive property of the Company to be used by the Employee only in the\nperformance of his/her duties for the Company. All such materials or copies thereof and all tangible property of the Company in the custody or\npossession of the Employee shall be delivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of his/her\nemployment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such tangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in paragraphs (a)\nand (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of\ninformation, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2. Developments.\n(a) The Employee will make full and prompt disclosure to the Company of all inventions, improvements, discoveries, methods,\ndevelopments, software, graphic designs and works of authorship, whether patentable or not, which are created, made, conceived or reduced to\npractice by him/her or under his/her direction or jointly with others during his/her employment by the Company, whether or not during normal\nworking hours or on the premises of the Company (all of which are collectively referred to in this Agreement as “Developments”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all\nhis/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and development of\nthe Company and which are made and conceived by the Employee not during normal working hours, not on the Company’s premises and not using\nthe Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this Agreement shall be construed\nin accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain classes of inventions made by an\nemployee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the Company agrees falls within such\nclasses. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with respect\nto the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States and foreign\ncountries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent applications,\ndeclarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem necessary or desirable\nin order to protect its rights and interests in any Development. The Employee further agrees that if the Company is unable, after reasonable effort, to\nsecure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to execute any such papers as the\nagent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints each executive officer of the Company\nas his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take any and all actions as the Company may deem\nnecessary or desirable in order to protect its rights and interests in any Development, under the conditions described in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the\nterms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the business of such\nprevious employer or any other party or to refrain from soliciting employees, customers or suppliers of such previous employer or other party. The\nEmployee further represents that his/her performance of all the terms of this Agreement and the performance of his/her duties as an employee of the\nCompany do not and will not breach any agreement with any prior employer or other party to which the Employee is a party (including without\nlimitation any nondisclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the Company to use\nany confidential or proprietary information or material belonging to any previous employer or others.\n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions\nwhich are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such agreements.\n5. No Employment Contract.\nThe Employee understand that this Agreement does not constitute a contract of employment and does not imply that his/her employment will\ncontinue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject\nmatter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed\nby the Employee and an authorized officer of the Company. The Employee agrees that any change or changes in his/her duties, salary or\ncompensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n-2-\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary\nor affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such\ntransfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and are\nconsidered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition to\nsuch other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is\ncommenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the\nCommonwealth of Massachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each\nconsents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nVISTAPRINT USA, INCORPORATED\nDate:\nBy: /s/ Colleen Fuller\nColleen Fuller, Manager Human Resources\nDate:\n/s/ Anne Drapeau\nAnne Drapeau\n-3-
+38880ce87b3a20784951088adb655aa3.pdf	effective_date jurisdiction party term	EX-99.(E)(2) 5 c16658exv99wxeyx2y.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (e)(2)\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made as of February 14, 2007 (the “Effective Date”) by and\nbetween Walgreen Co., an Illinois corporation (“Walgreens”), and Option Care, Inc., a Delaware corporation (“Option Care”).\nWHEREAS, Walgreens and Option Care (each, a “Party” and together, the “Parties”) agree that in order to facilitate discussions relating to\npotential business opportunities and strategic relationships and transactions for their mutual benefit (the “Potential Opportunities”), it may be\nnecessary for each Party to disclose certain information to the other Party on a confidential basis.\nNOW, THEREFORE, in consideration of the mutual promises contained herein, each of the Parties hereby agrees as follows:\n1. Confidentiality of Business Information.\n1.1 Definition. The term “Confidential Information” means any proprietary, confidential and non-public information, whether oral, written,\nvisual or otherwise, disclosed by or on behalf of a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), whether before or\nafter the Effective Date, in the course of discussing and evaluating the Potential Opportunities.\n1.2 Treatment of Confidential Information. The Receiving Party acknowledges that the Confidential Information is a special, valuable, and\nunique asset of the Disclosing Party and agrees that it: (a) will keep and maintain the Confidential Information in strict confidence; (b) will use\nthe Confidential Information only in connection with its review of the Potential Opportunities; (c) will not use the Confidential Information for\nthe benefit of any third party, or use the Confidential Information for its own benefit; and (d) will not disclose any portion of the Confidential\nInformation to any third party other than its affiliates, directors, officers, employees, agents, accountants, financial advisors, attorneys or other\nRepresentatives (collectively, “Representatives”) who need to know such Confidential Information in connection with the Receiving Party’s\nreview and evaluation of the Potential Opportunities. Each Party will use, and require its Representatives to use, the same degree of care as is\nused with such Party’s own Confidential Information, which shall in no event be less than reasonable care. Each Party will be responsible for\ndisclosures of Confidential Information made by their Representatives in violation of this Agreement.\n1.3 Exceptions to Confidential Treatment. The obligations under Section 1.2 above do not apply to any Confidential Information that:\n(a) the Receiving Party possessed prior to disclosure by the Disclosing Party, without a known obligation of confidentiality; (b) is or becomes\npublicly available without breach of this Agreement by the Receiving Party; (c) is independently developed by the Receiving Party without use\nof any Confidential Information of\nthe Disclosing Party; or (d) is rightfully received by the Receiving Party from a third party without an obligation of confidentiality to the\nDisclosing Party.\nIf, in the reasonable opinion of its legal counsel, a Receiving Party is required by law to disclose any Confidential Information of the other\nParty in connection with any legal proceeding, then the Receiving Party may disclose such information; provided the Receiving Party shall notify\nthe Disclosing Party within a reasonable time prior to disclosure in order to allow the Disclosing Party a reasonable opportunity to seek\nappropriate protective measures.\n2. Destruction/Return of Confidential Information. Promptly after the termination of this Agreement, the termination of discussions regarding\nthe Potential Opportunities, or the receipt of a written request by the Disclosing Party, the Receiving Party shall, at the Disclosing Party’s option,\neither: (a) return the Confidential Information to the Disclosing Party, or (b) certify in writing to the Disclosing Party that such Confidential\nInformation has been destroyed in such a manner that it cannot be retrieved.\n3. No Commitment. This Agreement provides only for the handling and protecting of Confidential Information. Neither this Agreement nor any\ndiscussions or disclosures made in connection with the Potential Opportunities: (a) is a commitment to any business relationship, contract or\nfuture dealing with the other Party, or (b) by itself, prevents either Party from conducting similar discussions with third parties, restricts the\nability of either Party conduct its business in the ordinary course or prevents either Party from developing concepts or entering into transactions\nwith other parties similar to the Potential Opportunities, so long as such discussions or work do not violate this Agreement. The Parties are\nindependent contractors and nothing herein will be deemed to create any agency relationship, joint venture or partnership between the Parties. No\nwarranties of any kind are given with respect to the Confidential Information, except that the Disclosing Party warrants that it has the authority to\nmake the disclosures contemplated under this Agreement.\n4. Term. This Agreement shall be effective from and after the Effective Date for two (2) years or until its earlier termination by either Party. The\nobligation to protect the confidentiality of Confidential Information received prior to the date of termination shall survive termination for one\n(1) year.\n5. Non-solicitation. For a period beginning on the date when you execute this Agreement and ending on the second anniversary of that date,\nneither Party shall directly or indirectly induce, recruit, solicit, or influence any managerial, executive or other key employee of the other Party\nwith whom such Party has contact in connection with the Potential Opportunities to terminate his or her employment with his or her employer for\nthe purpose of working or providing consulting services for the other Party. Notwithstanding the foregoing, the restrictions set forth in this\nSection shall not prevent either Party from hiring any person who responds to a general advertisement for employment or who contacts such\nParty on his or her own initiative.\n6. No Assignment. This Agreement may not be assigned by either Party without the prior written consent of the other Party. No permitted\nassignment will relieve the Receiving Party of its obligations under this Agreement with respect to Confidential Information disclosed to it prior\n2\nto the assignment. Any purported assignment in violation of this Section is void. This Agreement is binding upon the Parties’ respective\npermitted successors and assigns.\n7. Notices. All notices hereunder shall be deemed to have been duly given upon actual receipt if addressed as follows (unless such addresses are\nchanged by written notice): For Walgreens, Attn: Law Department M.S. #1425 (MEV), 104 Wilmot Road, Deerfield, IL 60015 and for Option\nCare, Attn: Joseph Bonaccorsi, 485 Half Day Road, Suite 300, Buffalo Grove, Illinois 60089.\n8. No Waiver. No failure or delay by either Party in exercising any right under this Agreement is a waiver of its rights, nor does any single or\npartial waiver of its rights preclude any other or further exercise of its rights or the exercise of any other right under this Agreement.\n9. Publicity. The Parties agree that the existence of this Agreement, the disclosures contemplated herein, and the existence of a potential business\nrelationship between the Parties shall be kept confidential and shall not be revealed to or discussed with third parties without mutual approval of\nboth Parties.\n10. Injunctive Relief. The Receiving Party acknowledges and agrees that in the event of any breach of this Agreement, the Disclosing Party\nwould be irreparably and immediately harmed and could not be made whole by monetary damages alone. Accordingly, the Parties agree that in\nthe event the Receiving Party or any of its Representatives uses, discloses, or the Receiving Party reasonably believes, based on facts known to\nthe Receiving Party at the time that (or in the Disclosing Party’s sole opinion) any such person is likely to use or disclose Confidential\nInformation of the Disclosing Party in breach of this Agreement, the Disclosing Party, in addition to any other remedy to which it maybe entitled\nin law or equity, shall be entitled to equitable relief, including temporary and permanent injunctive relief and specific performance.\n11. Counterparts; Facsimile/Pdf. This Agreement may be executed in any number of separate counterparts, all of which, when taken together,\nshall constitute one and the same instrument, notwithstanding the fact that all Parties did not sign the same counterpart. Each of the Parties agrees\nthat a signature transmitted to the other Parties by facsimile transmission or in pdf format shall be effective to bind the Party whose signature was\ntransmitted.\n12. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without giving\neffect to the principles of conflict of laws.\n13. Entire Agreement; Severability. This Agreement represents the entire understanding of the Parties with respect to the Confidential\nInformation and supersedes all prior communications, agreements and understandings relating to the disclosure of Confidential Information. The\nprovisions of this Agreement may not be modified, amended or waived, except by a written instrument duly executed by both Parties. If any\nprovision of this Agreement is held invalid or unenforceable, in a final non-appealable order issued by a court of competent jurisdiction, the\nprovision shall be deleted from this Agreement and replaced by a valid and enforceable provision which so far as possible achieves the intention\nof the original provision. The remaining provisions of this Agreement will continue in full force and effect for the term of the Agreement.\n3\nIN WITNESS WHEREOF, the Parties’ duly authorized representatives have executed this Agreement as of the Effective Date.\nWALGREEN CO.\nOPTION CARE, INC.\nBy: /s/ Robert G. Zimmerman\nBy: /s/ Raj Rai\nName: Robert G. Zimmerman\nName: Raj Rai\nTitle: Vice President\nTitle: CEO\n4	EX-99.(E)(2) 5 c16658exv99wxeyx2y.htm MUTUAL NON-DISCLOSURE AGREEMENT\nMUTUAL NONDISCL.OSURE AGREEMENT\nTHIS MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made as of February 14, 2007 (the “Effective Date”) by and\nbetween Walgreen Co., an Illinois corporation (“Walgreens”), and Option Care, Inc., a Delaware corporation (“Option Care”).\nWHEREAS, Walgreens and Option Care (each, a “Party” and together, the “Parties”) agree that in order to facilitate discussions relating to\npotential business opportunities and strategic relationships and transactions for their mutual benefit (the “Potential Opportunities”), it may be\nnecessary for each Party to disclose certain information to the other Party on a confidential basis.\n \nNOW, THEREFORE, in consideration of the mutual promises contained herein, each of the Parties hereby agrees as follows:\n1. Confidentiality of Business Information.\n1.1 Definition. The term “Confidential Information” means any proprietary, confidential and non-public information, whether oral, written,\nvisual or otherwise, disclosed by or on behalf of a Party (the “Disclesing Party”) to the other Party (the “Receiving Party”), whether before or\nafter the Effective Date, in the course of discussing and evaluating the Potential Opportunities.\n1.2 Treatment of Confidential Information. The Receiving Party acknowledges that the Confidential Information is a special, valuable, and\nunique asset of the Disclosing Party and agrees that it: (a) will keep and maintain the Confidential Information in strict confidence; (b) will use\nthe Confidential Information only in connection with its review of the Potential Opportunities; (c) will not use the Confidential Information for\nthe benefit of any third party, or use the Confidential Information for its own benefit; and (d) will not disclose any portion of the Confidential\nInformation to any third party other than its affiliates, directors, officers, employees, agents, accountants, financial advisors, attorneys or other\nRepresentatives (collectively, “Representatives”) who need to know such Confidential Information in connection with the Receiving Party’s\nreview and evaluation of the Potential Opportunities. Each Party will use, and require its Representatives to use, the same degree of care as is\nused with such Party’s own Confidential Information, which shall in no event be less than reasonable care. Each Party will be responsible for\ndisclosures of Confidential Information made by their Representatives in violation of this Agreement.\n1.3 Exceptions to Confidential Treatment. The obligations under Section 1.2 above do not apply to any Confidential Information that:\n(a) the Receiving Party possessed prior to disclosure by the Disclosing Party, without a known obligation of confidentiality; (b) is or becomes\npublicly available without breach of this Agreement by the Receiving Party; (c) is independently developed by the Receiving Party without use\nof any Confidential Information of\nthe Disclosing Party; or (d) is rightfully received by the Receiving Party from a third party without an obligation of confidentiality to the\nDisclosing Party.\nIf, in the reasonable opinion of its legal counsel, a Receiving Party is required by law to disclose any Confidential Information of the other\nParty in connection with any legal proceeding, then the Receiving Party may disclose such information; provided the Receiving Party shall notify\nthe Disclosing Party within a reasonable time prior to disclosure in order to allow the Disclosing Party a reasonable opportunity to seek\nappropriate protective measures.\n2. Destruction/Return of Confidential Information. Promptly after the termination of this Agreement, the termination of discussions regarding\nthe Potential Opportunities, or the receipt of a written request by the Disclosing Party, the Receiving Party shall, at the Disclosing Party’s option,\neither: (a) return the Confidential Information to the Disclosing Party, or (b) certify in writing to the Disclosing Party that such Confidential\nInformation has been destroyed in such a manner that it cannot be retrieved.\n3. No Commitment. This Agreement provides only for the handling and protecting of Confidential Information. Neither this Agreement nor any\ndiscussions or disclosures made in connection with the Potential Opportunities: (a) is a commitment to any business relationship, contract or\nfuture dealing with the other Party, or (b) by itself, prevents either Party from conducting similar discussions with third parties, restricts the\nability of either Party conduct its business in the ordinary course or prevents either Party from developing concepts or entering into transactions\nwith other parties similar to the Potential Opportunities, so long as such discussions or work do not violate this Agreement. The Parties are\nindependent contractors and nothing herein will be deemed to create any agency relationship, joint venture or partnership between the Parties. No\nwarranties of any kind are given with respect to the Confidential Information, except that the Disclosing Party warrants that it has the authority to\nmake the disclosures contemplated under this Agreement.\n4. Term. This Agreement shall be effective from and after the Effective Date for two (2) years or until its earlier termination by either Party. The\nobligation to protect the confidentiality of Confidential Information received prior to the date of termination shall survive termination for one\n(1) year.\n5. Non-solicitation. For a period beginning on the date when you execute this Agreement and ending on the second anniversary of that date,\nneither Party shall directly or indirectly induce, recruit, solicit, or influence any managerial, executive or other key employee of the other Party\nwith whom such Party has contact in connection with the Potential Opportunities to terminate his or her employment with his or her employer for\nthe purpose of working or providing consulting services for the other Party. Notwithstanding the foregoing, the restrictions set forth in this\nSection shall not prevent either Party from hiring any person who responds to a general advertisement for employment or who contacts such\nParty on his or her own initiative.\n6. No Assignment. This Agreement may not be assigned by either Party without the prior written consent of the other Party. No permitted\nassignment will relieve the Receiving Party of its obligations under this Agreement with respect to Confidential Information disclosed to it prior\n2\nto the assignment. Any purported assignment in violation of this Section is void. This Agreement is binding upon the Parties’ respective\npermitted successors and assigns.\n7. Notices. All notices hereunder shall be deemed to have been duly given upon actual receipt if addressed as follows (unless such addresses are\nchanged by written notice): For Walgreens, Attn: Law Department M.S. #1425 (MEV), 104 Wilmot Road, Deerfield, IL 60015 and for Option\nCare, Attn: Joseph Bonaccorsi, 485 Half Day Road, Suite 300, Buffalo Grove, Illinois 60089.\n8. No Waiver. No failure or delay by either Party in exercising any right under this Agreement is a waiver of its rights, nor does any single or\npartial waiver of its rights preclude any other or further exercise of its rights or the exercise of any other right under this Agreement.\n9. Publicity. The Parties agree that the existence of this Agreement, the disclosures contemplated herein, and the existence of a potential business\nrelationship between the Parties shall be kept confidential and shall not be revealed to or discussed with third parties without mutual approval of\nboth Parties.\n10. Injunctive Relief. The Receiving Party acknowledges and agrees that in the event of any breach of this Agreement, the Disclosing Party\nwould be irreparably and immediately harmed and could not be made whole by monetary damages alone. Accordingly, the Parties agree that in\nthe event the Receiving Party or any of its Representatives uses, discloses, or the Receiving Party reasonably believes, based on facts known to\nthe Receiving Party at the time that (or in the Disclosing Party’s sole opinion) any such person is likely to use or disclose Confidential\nInformation of the Disclosing Party in breach of this Agreement, the Disclosing Party, in addition to any other remedy to which it maybe entitled\nin law or equity, shall be entitled to equitable relief, including temporary and permanent injunctive relief and specific performance.\n11. Counterparts; Facsimile/Pdf. This Agreement may be executed in any number of separate counterparts, all of which, when taken together,\nshall constitute one and the same instrument, notwithstanding the fact that all Parties did not sign the same counterpart. Each of the Parties agrees\nthat a signature transmitted to the other Parties by facsimile transmission or in pdf format shall be effective to bind the Party whose signature was\ntransmitted.\n12. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without giving\neffect to the principles of conflict of laws.\n13. Entire Agreement; Severability. This Agreement represents the entire understanding of the Parties with respect to the Confidential\nInformation and supersedes all prior communications, agreements and understandings relating to the disclosure of Confidential Information. The\nprovisions of this Agreement may not be modified, amended or waived, except by a written instrument duly executed by both Parties. If any\nprovision of this Agreement is held invalid or unenforceable, in a final non-appealable order issued by a court of competent jurisdiction, the\nprovision shall be deleted from this Agreement and replaced by a valid and enforceable provision which so far as possible achieves the intention\nof the original provision. The remaining provisions of this Agreement will continue in full force and effect for the term of the Agreement.\n3\nIN WITNESS WHEREOQF, the Parties’ duly authorized representatives have executed this Agreement as of the Effective Date.\nWALGREEN CO. OPTION CARE, INC.\nBy: /s/ Robert G. Zimmerman By: /s/RajRai\nName: Robert G. Zimmerman Name: Raj Rai\nTitle: Vice President Title: CEO	EX-99.(E)(2) 5 c16658exv99wxeyx2y.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit pit (e)(2)\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS MUTUAL NONDISCLOSURE AGREEMENT (this "Agreement") is made as of February 14, 2007 (the "Effective Date") by and\nbetween Walgreen Co., an Illinois corporation ("Walgreens"), and Option Care, Inc., a Delaware corporation ("Option Care").\nWHEREAS, Walgreens and Option Care (each, a "Party." and together, the "Parties") agree that in order to facilitate discussions relating to\npotential business opportunities and strategic relationships and transactions for their mutual benefit (the "Potential Opportunities"), it may be\nnecessary for each Party to disclose certain information to the other Party on a confidential basis.\nNOW, THEREFORE, in consideration of the mutual promises contained herein, each of the Parties hereby agrees as follows:\n1. Confidentiality of Business Information.\n1.1 Definition. The term "Confidential Information" means any proprietary, confidential and non-public information, whether oral, written,\nvisual or otherwise, disclosed by or on behalf of a Party (the "Disclosing Party.") to the other Party (the "Receiving Pa Party."), whether before or\nafter the Effective Date, in the course of discussing and evaluating the Potential Opportunities.\n1.2 Treatment of Confidential Information The Receiving Party acknowledges that the Confidential Information is a special, valuable, and\nunique asset of the Disclosing Party and agrees that it: (a) will keep and maintain the Confidential Information in strict confidence; (b) will use\nthe Confidential Information only in connection with its review of the Potential Opportunities; (c) will not use the Confidential Information for\nthe benefit of any third party, or use the Confidential Information for its own benefit; and (d) will not disclose any portion of the Confidential\nInformation to any third party other than its affiliates, directors, officers, employees, agents, accountants, financial advisors, attorneys or other\nRepresentatives\n(collectively,\n"Representatives")\nwho\nneed\nto\nknow\nsuch\nConfidential\nInformation\nin\nconnection\nwith\nthe\nReceiving\nParty's\nreview and evaluation of the Potential Opportunities. Each Party will use, and require its Representatives to use, the same degree of care as is\nused with such Party's own Confidential Information, which shall in no event be less than reasonable care. Each Party will be responsible for\ndisclosures of Confidential Information made by their Representatives in violation of this Agreement.\n1.3 Exceptions to Confidential Treatment. The obligations under Section 1.2 above do not apply to any Confidential Information that:\n(a) the Receiving Party possessed prior to disclosure by the Disclosing Party, without a known obligation of confidentiality; (b) is or becomes\npublicly available without breach of this Agreement by the Receiving Party; (c) is independently developed by the Receiving Party without use\nof any Confidential Information of\nthe Disclosing Party; or (d) is rightfully received by the Receiving Party from a third party without an obligation of confidentiality to the\nDisclosing Party.\nIf, in the reasonable opinion of its legal counsel, a Receiving Party is required by law to disclose any Confidential Information of the other\nParty in connection with any legal proceeding, then the Receiving Party may disclose such information; provided the Receiving Party shall notify\nthe Disclosing Party within a reasonable time prior to disclosure in order to allow the Disclosing Party a reasonable opportunity to seek\nappropriate protective measures.\n2. Destruction/Return of Confidential Information. Promptly after the termination of this Agreement, the termination of discussions regarding\nthe Potential Opportunities, or the receipt of a written request by the Disclosing Party, the Receiving Party shall, at the Disclosing Party's option,\neither: (a) return the Confidential Information to the Disclosing Party, or (b) certify in writing to the Disclosing Party that such Confidential\nInformation has been destroyed in such a manner that it cannot be retrieved.\n3. No Commitment. This Agreement provides only for the handling and protecting of Confidential Information. Neither this Agreement nor any\ndiscussions or disclosures made in connection with the Potential Opportunities: (a) is a commitment to any business relationship, contract or\nfuture dealing with the other Party, or (b) by itself, prevents either Party from conducting similar discussions with third parties, restricts the\nability of either Party conduct its business in the ordinary course or prevents either Party from developing concepts or entering into transactions\nwith other parties similar to the Potential Opportunities, so long as such discussions or work do not violate this Agreement. The Parties are\nindependent contractors and nothing herein will be deemed to create any agency relationship, joint venture or partnership between the Parties. No\nwarranties of any kind are given with respect to the Confidential Information, except that the Disclosing Party warrants that it has the authority to\nmake the disclosures contemplated under this Agreement.\n4. Term. This Agreement shall be effective from and after the Effective Date for two (2) years or until its earlier termination by either Party. The\nobligation to protect the confidentiality of Confidential Information received prior to the date of termination shall survive termination for one\n(1) year.\n5. Non-solicitation. For a period beginning on the date when you execute this Agreement and ending on the second anniversary of that date,\nneither Party shall directly or indirectly induce, recruit, solicit, or influence any managerial, executive or other key employee of the other\nParty\nwith whom such Party has contact in connection with the Potential Opportunities to terminate his or her employment with his or her employer for\nthe purpose of working or providing consulting services for the other Party. Notwithstanding the foregoing, the restrictions set forth in this\nSection shall not prevent either Party from hiring any person who responds to a general advertisement for employment or who contacts such\nParty on his or her own initiative.\n6.\nNo Assignment. This Agreement may not be assigned by either Party without the prior written consent of the other Party. No permitted\nassignment will relieve the Receiving Party of its obligations under this Agreement with respect to Confidential Information disclosed to it\nprior\n2\nto the assignment. Any purported assignment in violation of this Section is void. This Agreement is binding upon the Parties' respective\npermitted successors and assigns.\n7. Notices. All notices hereunder shall be deemed to have been duly given upon actual receipt if addressed as follows (unless such addresses are\nchanged by written notice): For Walgreens, Attn: Law Department M.S. #1425 (MEV), 104 Wilmot Road, Deerfield, IL 60015 and for Option\nCare, Attn: Joseph Bonaccorsi, 485 Half Day Road, Suite 300, Buffalo Grove, Illinois 60089.\n8. No Waiver. No failure or delay by either Party in exercising any right under this Agreement is a waiver of its rights, nor does any single or\npartial waiver of its rights preclude any other or further exercise of its rights or the exercise of any other right under this Agreement.\n9. Publicity. The Parties agree that the existence of this Agreement, the disclosures contemplated herein, and the existence of a potential business\nrelationship between the Parties shall be kept confidential and shall not be revealed to or discussed with third parties without mutual approval of\nboth Parties.\n10 Injunctive Relief. The Receiving Party acknowledges and agrees that in the event of any breach of this Agreement the Disclosing Party\nwould be irreparably and immediately harmed and could not be made whole by monetary damages alone. Accordingly, the Parties agree that in\nthe event the Receiving Party or any of its Representatives uses, discloses, or the Receiving Party reasonably believes, based on facts known to\nthe Receiving Party at the time that (or in the Disclosing Party's sole opinion) any such person is likely to use or disclose Confidential\nInformation of the Disclosing Party in breach of this Agreement, the Disclosing Party, in addition to any other remedy to which it maybe entitled\nin law or equity, shall be entitled to equitable relief, including temporary and permanent injunctive relief and specific performance.\n11.\nCounterparts; Facsimile/Pdf. This Agreement may be executed in any number of separate counterparts, all of which, when taken together,\nshall constitute one and the same instrument, notwithstanding the fact that all Parties did not sign the same counterpart. Each of the Parties agrees\nthat a signature transmitted to the other Parties by facsimile transmission or in pdf format shall be effective to bind the Party whose signature was\ntransmitted.\n12. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without giving\neffect to the principles of conflict of laws.\n13. Entire Agreement; Severability. This Agreement represents the entire understanding of the Parties with respect to the Confidentia\nInformation and supersedes all prior communications, agreements and understandings relating to the disclosure of Confidential Information. The\nprovisions of this Agreement may not be modified, amended or waived, except by a written instrument duly executed by both Parties. If any\nprovision of this Agreement is held invalid or unenforceable, in a final non-appealable order issued by a court of competent jurisdiction, the\nprovision shall be deleted from this Agreement and replaced by a valid and enforceable provision which so far as possible achieves the intention\nof the original provision. The remaining provisions of this Agreement will continue in full force and effect for the term of the Agreement.\n3\nIN WITNESS WHEREOF, the Parties' duly authorized representatives have executed this Agreement as of the Effective Date.\nWALGREEN CO.\nOPTION CARE, INC.\nBy: /s/ Robert G. Zimmerman\nBy: /s/ Raj Rai\nName: Robert G. Zimmerman\nName: Raj Rai\nTitle: Vice President\nTitle: CEO\n4	EX-99.(E)(2) 5 c16658exv99wxeyx2y.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (e)(2)\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made as of February 14, 2007 (the “Effective Date”) by and\nbetween Walgreen Co., an Illinois corporation (“Walgreens”), and Option Care, Inc., a Delaware corporation (“Option Care”).\nWHEREAS, Walgreens and Option Care (each, a “Party” and together, the “Parties”) agree that in order to facilitate discussions relating to\npotential business opportunities and strategic relationships and transactions for their mutual benefit (the “Potential Opportunities”), it may be\nnecessary for each Party to disclose certain information to the other Party on a confidential basis.\nNOW, THEREFORE, in consideration of the mutual promises contained herein, each of the Parties hereby agrees as follows:\n1. Confidentiality of Business Information.\n1.1 Definition. The term “Confidential Information” means any proprietary, confidential and non-public information, whether oral, written,\nvisual or otherwise, disclosed by or on behalf of a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), whether before or\nafter the Effective Date, in the course of discussing and evaluating the Potential Opportunities.\n1.2 Treatment of Confidential Information. The Receiving Party acknowledges that the Confidential Information is a special, valuable, and\nunique asset of the Disclosing Party and agrees that it: (a) will keep and maintain the Confidential Information in strict confidence; (b) will use\nthe Confidential Information only in connection with its review of the Potential Opportunities; (c) will not use the Confidential Information for\nthe benefit of any third party, or use the Confidential Information for its own benefit; and (d) will not disclose any portion of the Confidential\nInformation to any third party other than its affiliates, directors, officers, employees, agents, accountants, financial advisors, attorneys or other\nRepresentatives (collectively, “Representatives”) who need to know such Confidential Information in connection with the Receiving Party’s\nreview and evaluation of the Potential Opportunities. Each Party will use, and require its Representatives to use, the same degree of care as is\nused with such Party’s own Confidential Information, which shall in no event be less than reasonable care. Each Party will be responsible for\ndisclosures of Confidential Information made by their Representatives in violation of this Agreement.\n1.3 Exceptions to Confidential Treatment. The obligations under Section 1.2 above do not apply to any Confidential Information that:\n(a) the Receiving Party possessed prior to disclosure by the Disclosing Party, without a known obligation of confidentiality; (b) is or becomes\npublicly available without breach of this Agreement by the Receiving Party; (c) is independently developed by the Receiving Party without use\nof any Confidential Information of\nthe Disclosing Party; or (d) is rightfully received by the Receiving Party from a third party without an obligation of confidentiality to the\nDisclosing Party.\nIf, in the reasonable opinion of its legal counsel, a Receiving Party is required by law to disclose any Confidential Information of the other\nParty in connection with any legal proceeding, then the Receiving Party may disclose such information; provided the Receiving Party shall notify\nthe Disclosing Party within a reasonable time prior to disclosure in order to allow the Disclosing Party a reasonable opportunity to seek\nappropriate protective measures.\n2. Destruction/Return of Confidential Information. Promptly after the termination of this Agreement, the termination of discussions regarding\nthe Potential Opportunities, or the receipt of a written request by the Disclosing Party, the Receiving Party shall, at the Disclosing Party’s option,\neither: (a) return the Confidential Information to the Disclosing Party, or (b) certify in writing to the Disclosing Party that such Confidential\nInformation has been destroyed in such a manner that it cannot be retrieved.\n3. No Commitment. This Agreement provides only for the handling and protecting of Confidential Information. Neither this Agreement nor any\ndiscussions or disclosures made in connection with the Potential Opportunities: (a) is a commitment to any business relationship, contract or\nfuture dealing with the other Party, or (b) by itself, prevents either Party from conducting similar discussions with third parties, restricts the\nability of either Party conduct its business in the ordinary course or prevents either Party from developing concepts or entering into transactions\nwith other parties similar to the Potential Opportunities, so long as such discussions or work do not violate this Agreement. The Parties are\nindependent contractors and nothing herein will be deemed to create any agency relationship, joint venture or partnership between the Parties. No\nwarranties of any kind are given with respect to the Confidential Information, except that the Disclosing Party warrants that it has the authority to\nmake the disclosures contemplated under this Agreement.\n4. Term. This Agreement shall be effective from and after the Effective Date for two (2) years or until its earlier termination by either Party. The\nobligation to protect the confidentiality of Confidential Information received prior to the date of termination shall survive termination for one\n(1) year.\n5. Non-solicitation. For a period beginning on the date when you execute this Agreement and ending on the second anniversary of that date,\nneither Party shall directly or indirectly induce, recruit, solicit, or influence any managerial, executive or other key employee of the other Party\nwith whom such Party has contact in connection with the Potential Opportunities to terminate his or her employment with his or her employer for\nthe purpose of working or providing consulting services for the other Party. Notwithstanding the foregoing, the restrictions set forth in this\nSection shall not prevent either Party from hiring any person who responds to a general advertisement for employment or who contacts such\nParty on his or her own initiative.\n6. No Assignment. This Agreement may not be assigned by either Party without the prior written consent of the other Party. No permitted\nassignment will relieve the Receiving Party of its obligations under this Agreement with respect to Confidential Information disclosed to it prior\n2\nto the assignment. Any purported assignment in violation of this Section is void. This Agreement is binding upon the Parties’ respective\npermitted successors and assigns.\n7. Notices. All notices hereunder shall be deemed to have been duly given upon actual receipt if addressed as follows (unless such addresses are\nchanged by written notice): For Walgreens, Attn: Law Department M.S. #1425 (MEV), 104 Wilmot Road, Deerfield, IL 60015 and for Option\nCare, Attn: Joseph Bonaccorsi, 485 Half Day Road, Suite 300, Buffalo Grove, Illinois 60089.\n8. No Waiver. No failure or delay by either Party in exercising any right under this Agreement is a waiver of its rights, nor does any single or\npartial waiver of its rights preclude any other or further exercise of its rights or the exercise of any other right under this Agreement.\n9. Publicity. The Parties agree that the existence of this Agreement, the disclosures contemplated herein, and the existence of a potential business\nrelationship between the Parties shall be kept confidential and shall not be revealed to or discussed with third parties without mutual approval of\nboth Parties.\n10. Injunctive Relief. The Receiving Party acknowledges and agrees that in the event of any breach of this Agreement, the Disclosing Party\nwould be irreparably and immediately harmed and could not be made whole by monetary damages alone. Accordingly, the Parties agree that in\nthe event the Receiving Party or any of its Representatives uses, discloses, or the Receiving Party reasonably believes, based on facts known to\nthe Receiving Party at the time that (or in the Disclosing Party’s sole opinion) any such person is likely to use or disclose Confidential\nInformation of the Disclosing Party in breach of this Agreement, the Disclosing Party, in addition to any other remedy to which it maybe entitled\nin law or equity, shall be entitled to equitable relief, including temporary and permanent injunctive relief and specific performance.\n11. Counterparts; Facsimile/Pdf. This Agreement may be executed in any number of separate counterparts, all of which, when taken together,\nshall constitute one and the same instrument, notwithstanding the fact that all Parties did not sign the same counterpart. Each of the Parties agrees\nthat a signature transmitted to the other Parties by facsimile transmission or in pdf format shall be effective to bind the Party whose signature was\ntransmitted.\n12. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without giving\neffect to the principles of conflict of laws.\n13. Entire Agreement; Severability. This Agreement represents the entire understanding of the Parties with respect to the Confidential\nInformation and supersedes all prior communications, agreements and understandings relating to the disclosure of Confidential Information. The\nprovisions of this Agreement may not be modified, amended or waived, except by a written instrument duly executed by both Parties. If any\nprovision of this Agreement is held invalid or unenforceable, in a final non-appealable order issued by a court of competent jurisdiction, the\nprovision shall be deleted from this Agreement and replaced by a valid and enforceable provision which so far as possible achieves the intention\nof the original provision. The remaining provisions of this Agreement will continue in full force and effect for the term of the Agreement.\n3\nIN WITNESS WHEREOF, the Parties’ duly authorized representatives have executed this Agreement as of the Effective Date.\nWALGREEN CO.\nOPTION CARE, INC.\nBy: /s/ Robert G. Zimmerman\nBy: /s/ Raj Rai\nName: Robert G. Zimmerman\nName: Raj Rai\nTitle: Vice President\nTitle: CEO\n4
+39610c6bf605fdd8d0d9bcb2aacb5e74.pdf	effective_date jurisdiction party term	EX-10.4 2 d450416dex104.htm EX-10.4\nExhibit 10.4\nAMENDED AND RESTATED EXECUTIVE EMPLOYMENT\nAND NON-DISCLOSURE, NON-COMPETITION,\nAND INVENTION ASSIGNMENT AGREEMENT\nThis Amended and Restated Executive Employment and Non-Disclosure, Non-Competition, and Invention Assignment Agreement (this\n“Agreement”) is made as of the\nday of\n, 20 (the “Effective Date”) by and between Cognizant Technology Solutions Corporation, a\nDelaware corporation (the “Company” (where applicable, the definition of Company shall include the Company’s subsidiaries and affiliates and any\nsuccessors or assigns)), and\n(“Employee”).\nWHEREAS, Employee is currently employed by the Company as its\n; and\nWHEREAS, the Company desires to continue to retain the services of Employee; and\nWHEREAS, the Parties desire to amend and restate, in its entirety, the parties’ prior agreements pertaining to Employee’s employment,\nand set forth the new terms and conditions of Employee’s employment by the Company;\nNOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth and intending to\nbe legally bound hereby, the Company and Employee (individually a “Party” and together, the “Parties”) agree as follows:\n1. Definitions.\n(a) “Annual Base Salary” shall mean the rate of annual base salary paid or payable to Employee by the Company (including authorized\ndeferrals and salary reduction amounts) immediately prior to Employee’s Termination Date.\n(b) “Board” shall mean the Board of Directors of Cognizant Technology Solutions Corporation.\n(c) “Cause” shall mean (i) willful malfeasance or willful misconduct by the Employee in connection with his employment,\n(ii) continuing failure to perform such duties as are reasonably requested by Employee’s supervisor, (iii) failure by the Employee to observe material\npolicies of the Company applicable to the Employee, (iv) the commission by the Employee of (x) any felony or (y) any misdemeanor involving\nmoral turpitude, (v) Employee engaging in any fraudulent act or act of embezzlement, or (vi) any material breach of this Agreement.\n(d) “Code” means the Internal Revenue Code of 1986, as amended and the regulations promulgated thereunder.\n(e) “Disability” means Employee’s total and permanent disability as determined in accordance with the Company’s long-term disability\npolicy, whether or not Employee is covered by such policy.\n-1-\n(f) “Good Reason” means, the occurrence of one or more of the following events or actions:\n(i) A material diminution by the Company of Employee’s authority, duties or responsibilities;\n(ii) A material diminution in Employee’s overall compensation package, which is not otherwise caused by an overall policy by\nthe Company to reduce senior employee compensation throughout the Company;\n(iii) The failure of the Company to obtain from its successors the express assumption of this Agreement; or\n(iv) A change, without Employee’s consent, in the principal place of work of the Employee to a location that is more than 50\nmiles from his primary work location as of the date of this Agreement, but only if such change occurs on or after a Change in Control.\n(g) “Notice of Termination” means a written notice which (i) indicates the specific termination provision in this Agreement relied upon,\nand (ii) briefly summarizes the facts and circumstances deemed to provide a basis for termination of Employee’s employment under the provision so\nindicated.\n(h) “Termination Date” shall mean the last day of Employee’s employment with the Company.\n(i) “Termination of Employment” shall mean the termination of Employee’s active employment relationship with the Company.\n2. Employment. Company hereby continues to employ Employee, and Employee hereby continues to accept such employment, upon the terms\nand conditions set forth herein.\n3. Duties.\n(a) Position. Employee continues to be employed as [insert position title] and shall have the duties and responsibilities assigned by\n[insert title] both upon initial hire and as may be reasonably assigned from time to time. Employee shall perform faithfully and diligently all duties\nassigned to Employee. Company reserves the right to modify Employee’s position and duties at any time in its sole and absolute discretion, provided\nthat the duties assigned are consistent with the position of a senior executive and that Employee continues to report to [insert title].\n(b) Best Efforts/Full-time. To the maximum extent permitted by law, Employee agrees to devote Employee’s best efforts and entire\nbusiness time and attention to the Company’s Business during the term of Employee’s employment with the Company. Employee agrees that, during\nthe term of Employee’s employment, except as otherwise approved in writing by the Company, which approval the Company may in its absolute\ndiscretion withhold, Employee will not, either directly or indirectly, or for himself/herself or through, on behalf of, or in conjunction with any\nperson, persons or legal entity, operate, engage in, assist, or be employed by any business activity to or for the benefit of any person or entity other\nthan the Company; provided that the\n-2-\nforegoing is not intended to prevent an Employee from pursuing hobbies or participating in any other activity which is not to the detriment of\nCompany. Employee further acknowledges and agrees that Employee has access to the Company’s Core Values and Standards of Business Conduct\n(the “Conduct Code”) located at www.cognizant.com, and Employee has read and understands the Conduct Code and shall abide by all the terms of\nsaid Conduct Code, as may be amended from time to time, and said Conduct Code shall be incorporated into this Agreement. Employee will abide\nby all policies and decisions made by Company, as well as all applicable federal, state and local laws, regulations or ordinances. Employee will act in\nthe best interest of Company at all times.\n(c) Work Location. Employee’s principal place of work shall be located in [insert city, state], or such other location as the parties may\nagree upon from time to time.\n4. At-Will Employment. Employee’s employment with the Company will be “at will,” meaning it is for no specified term and may be\nterminated by Employee or the Company at any time, with or without Cause or advance notice, subject to the provisions of Section 9 below.\n5. Compensation.\n(a) Annual Base Salary. As compensation for Employee’s performance of Employee’s duties hereunder, Company shall pay to Employee\na base salary as most recently determined by the Compensation Committee of the Board and last communicated to the Employee, as may be\nmodified by the Compensation Committee of the Board, payable in accordance with the normal payroll practices of Company, less required\ndeductions for state and federal withholding tax, social security and all other employment taxes and payroll deductions. In the event Employee’s\nemployment under this Agreement is terminated by either party, for any reason, Employee will earn the Annual Base Salary prorated to the date of\ntermination.\n(b) Incentive Compensation. Employee will be eligible to earn incentive compensation as determined by the Compensation Committee\nof the Board in accordance with the bonus plan(s) provided to Employee by Company, in accordance with the terms and conditions of such plan(s).\n(c) Stock Options and Other Equity Awards. Except as set forth herein, this Agreement does not modify or change the existing\nagreements regarding stock options, stock appreciation rights, restricted stock awards and restricted stock units (each, an “Equity Award” and\ncollectively, “Equity Awards”) previously issued to Employee.\n6. Customary Fringe Benefits. Employee will be eligible for all customary and usual fringe benefits generally available to Employees of\nCompany subject to the terms and conditions of Company’s benefit plan documents. Company reserves the right to change or eliminate the fringe\nbenefits on a prospective basis, at any time, effective upon notice to Employee.\n7. Business Expenses. Employee will be reimbursed for all reasonable, out-of-pocket business expenses incurred in the performance of\nEmployee’s duties on behalf of Company. To obtain reimbursement, expenses must be submitted promptly with appropriate supporting\ndocumentation in accordance with Company’s policies.\n-3-\n8. Company Access. Employee agrees and consents that, during the term of Employee’s employment with the Company and thereafter, the\nCompany may review, audit, intercept, access and disclose all messages created, received or sent over the electronic mail and internet access system\nprovided by the Company with or without notice to Employee and that such review, audit, interception, access, or disclosure may occur during or\nafter working hours. Employee further consents and agrees that the Company may, at any time, access and review the contents of all computers,\ncomputer disks, other data storage equipment and devices, files, desks, drawers, closets, cabinets and work stations which are either on the\nCompany’s premises or which are owned or provided by the Company.\n9. Involuntary Termination of Employment.\n(a) Prior to a Change in Control. In the event that Employee’s employment with the Company is involuntarily terminated by the\nCompany for any reason other than Cause, death or Disability or in the event Employee resigns his employment for Good Reason pursuant to\nSection 10 and the Company’s right to cure (as set forth in Section 10) has expired (an “Involuntary Termination”), and in either such case\nEmployee’s employment termination becomes effective before any Change in Control (as defined in Section 9(e) below) has occurred following the\ndate of this Agreement, Employee shall be entitled to the payments and benefits described below, provided that Employee executes and does not\nrevoke the Release (as defined in Section 11) and the Release first becomes effective:\n(i) Employee shall receive continued payment of the Employee’s Annual Base Salary, paid in regular installments in accordance\nwith the Company’s normal payroll practices, over a period of twenty-two (22) months, commencing on or as soon as practicable after the date the\nRelease becomes effective and within thirty-five days following Employee’s Termination Date.\n(ii) The Company shall, for a period of twelve (12) months following the date of Employee’s Termination of Employment, pay\nthe Employee each month an amount equal to the monthly COBRA medical insurance cost under the Company’s group medical plan for Employee\nand, where applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable, Employee’s spouse and\ndependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments specified\nunder this Section 9(a)(ii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage terminates for\nany reason before the expiration of the 12-month period.\n(iii) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the Company\nand would have vested had Employee remained employed by the Company during the twelve (12) month period following Employee’s Termination\nDate shall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such Equity Awards shall continue\nto be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n-4-\n(iv) With respect to any outstanding Equity Award that was subject to vesting in whole or in part based on achievement of\nperformance objective(s), to the extent that the applicable performance period has expired on or before Employee’s Termination Date, the\nperformance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future dates,\nthe portion of such Equity Award that would have vested had Employee remained employed by the Company during the twelve (12) month period\nfollowing Employee’s Termination Date shall become fully vested and exercisable as of Employee’s Termination Date. Such Equity Award shall\ncontinue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s Termination\nDate and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the Company. The payment\nof amounts described in this Section 9(a)(v) are not conditioned upon the Release becoming effective unless the applicable benefit plan or program\nprovides otherwise.\n(b) Coincident with or within One Year After a Change in Control. In the event that Employee suffers an Involuntary Termination that becomes\neffective coincident with, or within the twelve (12) month period immediately after, the first occurrence of a Change in Control following the date of\nthis Agreement, Employee shall be entitled to the payments and benefits described below in this Section 9(b) in lieu of, and not in addition to, the\npayments and benefits described in Section 9(a); provided that Employee executes and does not revoke the Release (as defined in Section 11) and the\nRelease first becomes effective:\n(i) Employee shall receive a cash payment equal to one times Employee’s Annual Base Salary, such amount to be paid in regular\ninstallments in accordance with the Company’s normal payroll practices over a period of twelve (12) months, commencing on or as soon as\npracticable after the date the Release becomes effective and within thirty-five days following Employee’s Termination Date.\n(ii) Employee shall receive a cash payment equal to the amount of the target annual bonus that the Employee would otherwise\nhave been eligible to receive for the performance year in which the Employee’s Termination Date occurs, assuming for this purpose that the\nEmployee and Company achieved 100% of applicable performance targets and objectives. Payment shall be made in a lump sum payment on or as\nsoon as practicable after the date the Release becomes effective and within thirty-five days following Employee’s Termination Date.\n(iii) The Company shall, for a period of twelve (12) months following the date of Employee’s Termination of Employment, pay\nEmployee each month an amount equal to the monthly COBRA medical insurance cost under the Company’s group medical plan for Employee and,\nwhere applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable, Employee’s spouse and dependents,\nare eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments specified under this\nSection 9(b)(iii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage terminates for any\nreason before the expiration of the 12-month period.\n-5-\n(iv) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the Company\nshall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such vested Equity Awards shall\ncontinue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) Outstanding Equity Awards the vesting of which is conditioned, in whole or in part, upon the achievement of performance\nobjectives shall become vested and exercisable as follows:\n(A) To the extent that the applicable performance period has expired on or before Employee’s Termination Date, the performance\nobjective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future dates, such\nEquity Award shall become fully vested and exercisable as of Employee’s Termination Date.\n(B) To the extent that the applicable performance period has not expired on or before Employee’s Termination Date, the Company shall\npro-rate the performance objective(s) for the portion of the performance period that has transpired up to the date of Closing of the Change in\nControl, make a good faith determination of the level of achievement of such pro-rated performance objective as of such Closing Date, and\ntreat as fully vested and exercisable a proportionate amount of such Equity Award that corresponds with the level of achievement of the pro-\nrated performance objective, disregarding any future service conditions that otherwise would apply to such Equity Award.\n(vi) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s Termination\nDate and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the Company. The payment\nof amounts described in this Section 9(b)(vi) are not conditioned upon the Release becoming effective unless the applicable benefit plan or program\nprovides otherwise.\n(c) Termination Due to Death, Disability, or For Cause. If Employee is terminated due to death, Disability, or for Cause, Employee shall\nreceive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s Termination Date and any benefits accrued and\nearned in accordance with the terms of any applicable benefit plans and programs of the Company; all other Company obligations to Employee will\nbe extinguished as of the Termination Date.\n(d) Notice of Termination. Any termination on account of this Section 9 shall be communicated by a Notice of Termination to the other\nParties hereto given in accordance with Section 24 hereof.\n(e) Definition of Change in Control. For purposes of this Agreement, the term “Change in Control” shall have the meaning set forth in\nthe Company’s 2009 Incentive Compensation Plan, as amended from time to time or any successor plan in effect as of Employee’s Termination\nDate.\n-6-\n10. Resignation for Good Reason. If Employee provides notice of his intent to terminate for Good Reason, then, subject to the expiration of the\ncure period and Employee’s actual termination as described below, such resignation shall be deemed an Involuntary Termination for purposes of this\nAgreement and Employee shall be entitled to the payments and benefits described in Section 9 subject to the requirements set forth in this\nAgreement, including Section 11. Employee must provide written notice to the Company of his intent to terminate his employment for Good Reason\nwithin thirty (30) days of the action or omission giving rise to such claim of Good Reason. Thereafter, the Company shall have a period of thirty\n(30) days within which it may correct the event or action that constitutes the grounds for Good Reason as set forth in Employee’s notice of\ntermination. If the Company does not correct the event or action prior to the expiration of the foregoing cure period, Employee must terminate his\nemployment for Good Reason within thirty (30) days after the expiration of the cure period, in order for the termination to be considered a Good\nReason termination under this Agreement.\n11. Release. Notwithstanding the foregoing, no payments or benefits shall be provided under Sections 9 and 10, as applicable (except for those\npayments that are owed pursuant to applicable law and/or are specifically not conditioned upon Employee’s execution of a release), unless Employee\nexecutes, and does not revoke, the Company’s then standard written general release (the “Release”) of any and all claims against the Company and\nall related parties with respect to all matters arising out of Employee’s employment by the Company (other than any entitlements under the terms of\nthis Agreement or under any other plans or programs of the Company in which Employee participated and under which Employee has accrued and\nearned a benefit) or the termination thereof. The Company will provide Employee with the form of release agreement within seven days after\nEmployee’s separation from service. To be entitled to the severance or other benefits, Employee must execute and deliver to the Company the release\nagreement on or before the last day of the minimum required waiver consideration period provided under the Age Discrimination in Employment\nAct or other applicable law or such later date specified in the release agreement. If Employee timely delivers an executed release agreement to the\nCompany, and Employee does not revoke the release agreement during the minimum revocation period required under applicable law, if any, the\nseverance or other benefits shall be paid or commence being paid, as specified in this Agreement, subject to any delay required pursuant to\nSection 30(b) of this Agreement. If, however, the period during which Employee has discretion to execute or revoke the release agreement straddles\ntwo calendar years, the cash severance or other benefits shall be paid or commence being paid, as applicable, as soon as practicable in the second of\nthe two calendar years, regardless of within which calendar year Employee actually delivers the executed release agreement to the Company, subject\nto the release agreement first becoming effective. Consistent with section 409A of the Code, Employee may not, directly or indirectly, designate the\ncalendar year of payment. Nothing in this Section 11 shall be construed to alter the terms of this Agreement that condition Employee’s entitlement to\nany severance or other benefits upon Employee’s compliance with the restrictive covenants and any other terms and conditions specified in this\nAgreement.\n12. Other Payments. Any payments and benefits that become due under Sections 9 and 10 hereof shall be in addition to (but not in duplication\nof) and not in lieu of any payments and benefits due to Employee under any other plan, policy or program of the Company, except that Employee\nshall not be entitled to any payments and benefits under the Company’s then current severance pay policies.\n-7-\n13. No Mitigation. Employee shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by seeking\nother employment or otherwise, nor shall the amount of any payment or benefit provided for herein be reduced by any compensation earned by other\nemployment or otherwise; provided, however, that any obligation of the Company to provide COBRA healthcare continuation coverage under\nSections 4 and 5 hereof shall cease upon Employee becoming covered under a healthcare plan of another employer.\n14. Non-Exclusivity of Rights. Except as provided in Section 12, nothing in this Agreement shall prevent or limit Employee’s continuing or\nfuture participation in or rights under any benefit, bonus, incentive or other plan or program provided by the Company or any of its subsidiaries or\naffiliates and for which Employee may qualify.\n15. No Set-Off. Other than with respect to the Recoupment Policy (as hereinafter defined), the Company’s obligation to make the payments\nprovided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any circumstances, including, without\nlimitation, any set-off, counterclaim, recoupment, defense or other right which the Company may have against Employee or others.\n16. Taxes.\n(a) All payments under this Agreement shall be made subject to applicable tax withholding, and the Company shall withhold from any\npayments under this Agreement all federal, state and local taxes as the Company is required to withhold pursuant to any law or governmental rule or\nregulation. Employee shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect to any payment\nreceived under this Agreement, including, without limitation, any excise tax imposed by section 4999 of the Code.\n(b) If the payments and benefits received or to be received by Employee in connection with a Change in Control or the termination of\nEmployee’s employment (whether payable pursuant to the terms of this Agreement (“Contract Payments”) or any other plan, arrangement or\nagreement with the Company or any affiliate (collectively with the Contract Payments, the “Total Payments”), would constitute a “parachute\npayment” under Section 280G of the Code, then the Total Payments shall be reduced, in the manner set forth below, by the minimum amount\nnecessary to result in no portion of the Total Payments being non-deductible to the Company pursuant to Section 280G of the Code or subject to the\nexcise tax imposed under Section 4999 of the Code.\n(c) All determinations required to be made under this Section 16, including whether a reduction in Total Payments is required, the\namount of any such reduction and the assumptions to be utilized in arriving at such determination, shall be made by an accounting or law firm of\nrecognized standing reasonably selected by the Company (the “Firm”), which may be, but will not be required to be, the Company’s independent\nauditors. The Firm shall submit its determination and detailed supporting calculations to both Employee and the Company within fifteen (15) days\nafter receipt of a notice from either the Company or Employee that Employee may receive payments which may be “parachute payments.” If the\nFirm determines that a reduction is required by this Section 16, the Contract Payments consisting of cash severance shall be reduced to the extent\nnecessary so that no portion of the Total Payments shall be subject to the excise tax imposed\n-8-\nby section 4999 of the Code, and the Company shall pay such reduced amount to Employee in accordance with the terms of this Agreement. If\nadditional Contract Payments must be reduced pursuant to this Section 16 after the cash severance has been reduced to zero, the Contract Payments\nallocable to performance-vested Equity Awards shall next be reduced, followed by the Contract Payments allocable to time-vested Equity Awards, to\nthe extent necessary to satisfy the requirements of this Section 16. If the Firm determines that none of the Total Payments, after taking into account\nany reduction required by this Section 16, constitutes a “parachute payment” within the meaning of section 280G of the Code, it will, at the same\ntime as it makes such determination, furnish Employee and the Company an opinion that Employee has substantial authority not to report any excise\ntax under section 4999 of the Code on Employee’s federal income tax return.\n(d) Employee and the Company shall each provide the Firm access to and copies of any books, records, and documents in the possession\nof Employee or the Company, as the case may be, reasonably requested by the Firm, and otherwise cooperate with the Firm in connection with the\npreparation and issuance of the determinations and calculations contemplated by this Section 16. The fees and expenses of the Firm for its services in\nconnection with the determinations and calculations contemplated by this Section 16 shall be borne by the Company.\n17. Confidential Information. Employee agrees that Employee’s services to the Company have been and will continue to be of a special,\nunique and extraordinary character, and that Employee’s position places Employee in a position of confidence and trust with the Company’s\ncustomers and employees. Employee also recognizes that Employee’s position with the Company will give Employee substantial access to\nConfidential Information (as defined below), the disclosure of which to competitors of the Company would cause the Company to suffer substantial\nand irreparable damage. Employee recognizes, therefore, that it is in the Company’s legitimate business interest to restrict Employee’s use of\nConfidential Information for any purposes other than the discharge of Employee’s employment duties at the Company, and to limit any potential\nappropriation of Confidential Information by Employee for the benefit of the Company’s competitors and to the detriment of the Company.\nAccordingly, Employee agrees as follows:\n(a) Employee will not at any time, whether during or after the termination of Employee’s employment, reveal to any person or entity any\nof the trade secrets or confidential information of the Company or of any third party which the Company is under an obligation to keep confidential\n(including but not limited to trade secrets or confidential information respecting inventions, products, designs, methods, know-how, techniques,\nsystems, processes, software programs, works of authorship, customer lists, projects, plans and proposals) (“Confidential Information”), except as\nmay be required in the ordinary course of performing Employee’s duties as an employee of the Company, and Employee shall keep secret all matters\nentrusted to Employee and shall not use or attempt to use any such information in any manner which may injure or cause loss or may be calculated\nto injure or cause loss whether directly or indirectly to the Company. By way of example and not limitation, Confidential Information also includes\nany and all information, whether or not meeting the legal definition of a trade secret, concerning the Company’s actual, planned or contemplated:\n(i) marketing plans, business plans, strategies, forecasts, budgets, projections and costs; (ii) personnel information; (iii) customer, vendor and\nsupplier lists; (iv) customer, vendor and supplier needs, transaction histories, contacts, volumes, characteristics,\n-9-\nagreements and prices; (v) promotions, operations, sales, marketing, and research and development; (vi) business operations, internal structures and\nfinancial affairs; (vii) software and operating systems and procedures; (viii) pricing structure of the Company’s services and products; (ix) proposed\nservices and products; (x) contracts with other parties; (xi) performance characteristics of the Company’s products; and (xii) Inventions and Works as\ndefined in Section 18. Confidential Information also includes any and all information of Company’s clients and customers which is deemed\nconfidential by such clients and customers (whether past, present or potential), including, but not limited to: marketing tools, inventions, processes,\ncontact lists, materials, software program code, logic diagrams, flow charts, procedural diagrams, computer programming techniques and know how,\nmaps and any documentation related thereto.\n(b) The above restrictions shall not apply to: (i) information that at the time of disclosure is in the public domain through no fault of\nEmployee; (ii) information received from a third party outside of the Company that was publicly disclosed without a breach of any confidentiality\nobligation; or (iii) information approved for release by written authorization of the Company. In addition, in the event that Employee is requested or\nrequired (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to\ndisclose any of the Confidential Information, it is agreed that Employee will provide the Company with prompt notice of such request(s) so that the\nCompany may seek an appropriate protective order or other appropriate remedy and/or waive compliance with the confidentiality provisions of this\nAgreement. In the event that such protective order or other remedy is not obtained, or the Company grants a waiver hereunder, Employee may\nfurnish that portion (and only that portion) of the Confidential Information which Employee is legally compelled to disclose and will exercise its\nreasonable best efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information so furnished.\n(c) Further, Employee agrees that during Employee’s employment Employee shall not take, use or permit to be used any notes,\nmemoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials of any nature\nrelating to any matter within the scope of the business of the Company or concerning any of its dealings or affairs otherwise than for the benefit of\nthe Company. Employee further agrees that Employee shall not, after the termination of Employee’s employment, use or permit to be used any such\nnotes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials, it being\nagreed that all of the foregoing shall be and remain the sole and exclusive property of the Company and that, immediately upon the termination of\nEmployee’s employment, Employee shall deliver all of the foregoing plus any other Confidential Information, and all copies thereof, to the\nCompany, at its main office.\n(d) Employee agrees that upon the termination of Employee’s employment with the Company, Employee will not take or retain without\nwritten authorization any documents, files or other property of the Company, and Employee will return promptly to the Company any such\ndocuments, files or property in Employee’s possession or custody, including any copies thereof maintained in any medium or format. Employee\nrecognizes that all documents, files and property which Employee has received and will receive from the Company, including but not limited to\nscientific research, customer lists, handbooks, memoranda, product specifications, and other materials (with the exception of documents relating to\nbenefits to which Employee might be entitled following the termination of Employee’s employment with the Company), are for the\n- 10-\nexclusive use of the Company and employees who are discharging their responsibilities on behalf of the Company, and that Employee has no claim\nor right to the continued use, possession or custody of such documents, files or property following the termination of Employee’s employment with\nthe Company.\n18. Intellectual Property.\n(a) Employee agrees to disclose fully, promptly, and in writing to the Company any and all Inventions and Works (each as defined\nbelow) which are conceived, made, reduced to practice, developed, authored, created, drawn or written at any time while Employee is employed by\nthe Company and for a period of six (6) months thereafter. Employee will generate and provide to the Company adequate and current written records\nof all Inventions and Works in the form of notes, sketches, drawings, reports, flow charts, procedural diagrams, logic diagrams, software program\ncode, procedural diagrams, computer programming techniques or other documents relating thereto or in such other form as will be requested by the\nCompany, which records and any copies thereof will be and will remain the exclusive property of the Company and will be available to the\nCompany at all times, all available information relating thereto (with all necessary plans and models) to the Company.\n(b) The Company and Employee agree that “Inventions,” is defined in this Agreement to include any and all new or useful ideas,\ndevelopments, discoveries, improvements, designs, formulas, modifications, trademarks, service marks, trade secrets, and other intellectual property,\nwhether patentable or not (including without limitation any technology, computer programs, software, software program code, logic diagrams,\nflowcharts, procedural diagrams, computer programming techniques, test, concept, idea, process, method, composition of matter, formula or\ntechnique), and all know-how related thereto, which Employee conceives, makes, reduces to practice, or develops, solely or jointly with others\n(i) which relate to the actual or contemplated business, work or activities of the Company, (ii) which result from or are suggested by any work which\nEmployee has done or may do on behalf of the Company, or by any information that Employee may receive by virtue of Employee’s employment by\nthe Company, or (iii) which are developed, tested, improved or investigated either in part or entirely on time for which Employee was paid by the\nCompany, or with the use of premises, equipment or property provided, owned, leased, or contracted for by or on behalf of the Company.\n(c) The Company and Employee agree that “Works” is defined in this Agreement to include any and all materials for which copyright\nprotection may be obtained, including without limitation literary works (including books, pamphlets, articles and other writings), mask works,\nartistic works (including designs, graphs, drawings, blueprints and other graphic works), computer programs, software program code, logic\ndiagrams, flow charts, procedural diagrams, computer programming, compilations, recordings, photographs, motion pictures and other audio-visual\nworks which Employee authors, conceives, creates, draws, makes, or writes, solely or jointly with others (i) which relate to the actual or\ncontemplated business, work or activities of the Company, (ii) which result from or are suggested by any work which Employee has done or may do\non behalf of the Company, or by any information that Employee may receive by virtue of Employee’s employment by the Company, or (iii) which\nare developed, tested, improved or investigated either in part or entirely on time for which Employee was paid by the Company, or with the use of\npremises, equipment or property provided, owned, leased, or contracted for, by, or on behalf of the Company.\n-11 -\n(d) Employee agrees to assign, transfer and convey, and hereby assigns, transfers and conveys to the Company all of the rights, titles and\ninterests in and to any and all such Inventions and Works that Employee has or may acquire in such Inventions or Works which are conceived, made,\nreduced to practice, developed, authored, created, drawn or written at any time while Employee is employed by the Company and for a period of six\n(6) months thereafter. Employee agrees that the Company will be the sole owner of all patents, copyrights, trademarks and other intellectual property\nrights in connection therewith, and agrees to take all such actions as may be requested by the Company during Employee’s employment with the\nCompany and at any time thereafter, with respect to any such Inventions or Works to confirm or evidence such assignment, transfer, conveyance or\nownership, and to assist in the Company’s maintenance, enforcement, license, assignment, transfer, or conveyance of rights in respect of the\nInventions or Works. Employee understands that if he is employed by the Company in California, his obligation to assign rights in inventions does\nnot apply to an invention that qualifies fully under the provisions of California Labor Code Section 2870.\n(e) By way of example and not limitation, at any time and from time to time, upon the request of the Company, Employee agrees to\nexecute, acknowledge, swear to, seal and deliver to the Company, any and all lawful instruments, documents and papers, give evidence and do any\nand all other lawful acts that, in the opinion of the Company, are or may be necessary or desirable to document such assignment, transfer and\nconveyance or to enable the Company to file and prosecute applications for and to acquire, maintain and enforce any and all patents, trademarks,\ncopyrights and other property rights under United States, local, state or foreign law with respect to any such Inventions or Works or to obtain any\nextension, validation, reissue, continuance or renewal of any such patent, trademark, copyright, or other intellectual property right. By way of further\nexample and not limitation, Employee agrees to meet with the Company representatives or attorneys for the purpose of initiating, maintaining or\ndefending litigation, administrative or other proceedings; and to participate fully in litigation, administrative or other proceedings as requested by the\nCompany. In the event that the Company may be unable, for any reason whatsoever, after reasonable effort, to secure Employee’s signature on any\npatent, copyright, trademark or other intellectual property application or other papers, Employee hereby irrevocably designates and appoints the\nCompany and its duly authorized officers and agents, as Employee’s agent and attorney-in-fact to act for and on behalf of Employee to execute,\nacknowledge, swear to, seal and deliver to the Company and to file any such application or applications or other papers, and to do all other lawfully\npermitted acts to further the provisions of Section 18 of this Agreement.\n(f) The Company agrees to reimburse Employee for reasonable expenses incurred by Employee in complying with the provisions of\nSections 18(d) and 18(e) of this Agreement. The Company and Employee agree that Employee is not entitled to additional compensation beyond that\npaid to Employee for the period of time that he is employed by the Company, which compensation, along with the Company’s understandings set\nforth in this Agreement, is expressly acknowledged to be adequate consideration for all of the Employee promises and obligations set forth in this\nAgreement.\n- 12-\n(g) Employee expressly acknowledges and states that all Works which are made by Employee (solely or jointly with others) are being\ncreated at the instance of the Company and are “works made for hire,” as that term is defined in the Copyright Act of 1976, 17 USC § 101. In the\nevent that such laws are inapplicable or in the event that any such Works, or any part thereof, are determined by a court of competent jurisdiction not\nto be a work made for hire, this Agreement will operate as an irrevocable and unconditional assignment by Employee to The Company of all\nEmployee’s right, title and interest (including, without limitation, all rights in and to the copyrights throughout the world, including the right to\nprepare derivative works and the rights to all renewals and extensions) in the Works in perpetuity.\n(h) Employee represents that Attachment A to this Agreement describes all inventions and works, whether patentable or not, which have\nbeen conceived, made, reduced to practice, developed, authored, created, drawn or written prior to Employee’s employment by the Company;\nprovided, however, that, Employee has not disclosed in Attachment A information that is a trade secret belonging to another, or which is the subject\nof a contract preventing Employee’s disclosure of the information to the Company.\n19. Non-Competition and Non-Solicitation. In further consideration of the compensation to be paid to Employee hereunder, Employee\nacknowledges that during the course of Employee’s employment with the Company, Company will provide Employee Confidential Information,\nwhich Employee promises to not disclose. Further, Employee will become and/or remain familiar with the Company’s trade secrets and with other\nConfidential Information concerning the Company and that Employee’s services shall be of special, unique and extraordinary value to the Company,\nand therefore, the Employee agrees that some restrictions on Employee’s activities during and after Employee’s employment are necessary to protect\nthe goodwill, Confidential Information and other legitimate interests of the Company:\n(a) During the period of Employee’s employment by the Company and, if Employee’s employment with the Company terminates for any\nreason, for a period of one (1) year thereafter (“Covenant Period”), except with the written consent of the Board, Employee shall not directly or\nindirectly, own, control, finance or participate in the ownership, control or financing of any Direct Competitor or Secondary Competitor. For the\npurposes of this Agreement, a “Direct Competitor” is defined as those entities listed on Attachment B, [as shall be modified from time-to-time by\nCompany upon written notice to Employee]. A “Secondary Competitor” is defined as a person, business or enterprise which directly or indirectly\nengages in information technology consulting and technology services, management consulting services, or outsourcing services, including, but not\nlimited to, technology strategy consulting, systems development, enterprise software package implementation and maintenance, data warehousing\nand business intelligence, application testing, application maintenance, infrastructure management, and business process outsourcing, in the\nTerritory. For purposes of this Agreement, Territory is defined as any state in the United States and any country in the world in which the Company\nhas sold or performed any services at the time of the termination of the Employee’s employment with the Company.\n(b) During the Covenant Period, the Employer further agrees that Employee shall not be employed by or provide services in any capacity\nto, a Direct Competitor in any part of the world. In addition, during the Covenant Period, Employee agrees that Employee shall not, in the Territory,\nprovide services the same as or similar to the services that Employee provided to the Company during a one (1) year period immediately preceding\nthe termination of the Employee’s employment with the Company to any Secondary Competitor.\n- 13-\n(c) In further consideration for the Company’s promises herein, Employee agrees that for the period beginning with the termination of\nEmployee’s employment with the Company for any reason, and for a period of one (1) year thereafter, Employee will not directly or indirectly solicit\nor recruit any part-time or full-time employee, representative or consultant of the Company or its subsidiaries or affiliates to work for a third party\nother than the Company or its subsidiaries or affiliates or engage in any activity that would cause any employee, representative or consultant to\nviolate any agreement with the Company or its subsidiaries or affiliates. The foregoing covenant shall not apply to any person after two (2) months\nhave elapsed after the date on which such person’s employment by the Company has terminated.\n(d) The foregoing restrictions shall not be construed to prohibit Employee’s ownership of less than one percent (1%) of any class of\nsecurities of any corporation which is engaged in any of the foregoing businesses and has a class of securities registered pursuant to the Securities\nExchange Act of 1934, as amended, provided that such ownership represents a passive investment and that neither Employee nor any group of\npersons including Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees any of its\nfinancial obligations, otherwise takes any part in its business, other than exercising Employee’s rights as a stockholder, or seeks to do any of the\nforegoing.\n20. Employee Representations.\n(a) Employee represents and warrants that this Agreement and his employment by the Company does not conflict with and will not be\nconstrained by any prior business relationship or contract, that Employee does not possess trade secrets or other proprietary information arising out\nof any prior business relationship or contract that, in Employee’s best judgment would be utilized in connection with Employee’s employment with\nthe Company. Employee further agrees that he will not disclose any such trade secrets or other proprietary information to the Company or others.\n(b) Employee represents and warrants that (i) before signing this Agreement, he has read this Agreement and is entering into this\nAgreement freely and with knowledge of its contents with the intent to be bound by it and the restrictions contained herein; (ii) the restrictions\nimposed on Employee by this Agreement are fair, reasonable and proper and required for the protection of the Company’s business interests,\nparticularly its investments in Employee (e.g ., Employee’s job knowledge and skills), its Confidential Information, as well as the goodwill\ndeveloped, and its business relationships, with its clients, customers and prospective clients and customers; and (iii) the restrictions imposed on\nEmployee by this Agreement, particularly, the post-termination restrictions, shall not preclude Employee from earning a living or engaging in\nEmployee’s profession or trade, or pursuing a career or a business.\n- 14-\n21. Equitable Relief.\n(a) Employee acknowledges that the restrictions contained in Sections 17, 18, and 19 hereof are reasonable and necessary to protect the\nlegitimate interests of the Company and its affiliates, that the Company would not have entered into this Agreement in the absence of such\nrestrictions, and that any violation of any provision of those Sections will result in irreparable injury to the Company. Employee represents that\nEmployee’s experience and capabilities are such that the restrictions contained in Section 17, 18, and 19 hereof will not prevent Employee from\nobtaining employment or otherwise earning a living at the same general level of economic benefit as is currently the case. Employee further\nrepresents and acknowledges that (i) Employee has been advised by the Company to consult Employee’s own legal counsel in respect of this\nAgreement, and (ii) that Employee has had full opportunity, prior to execution of this Agreement, to review thoroughly this Agreement with\nEmployee’s counsel.\n(b) Employee agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity of proving\nactual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of Sections 17, 18, and 19\nhereof, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled. The period of the\ninjunction shall be measured from the date of a court order granting the injunctive relief. In the event that any of the provisions of Sections 17, 18,\nand 19 hereof should ever be adjudicated to exceed the time, geographic, service, or other limitations permitted by applicable law in any jurisdiction,\nthen such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic, service, or other limitations permitted by\napplicable law.\n(c) Employee irrevocably and unconditionally (i) agrees that any suit, action or other legal proceeding arising out of Section 17, 18, and\n19 hereof, including without limitation, any action commenced by the Company for preliminary and permanent injunctive relief or other equitable\nrelief, may be brought in the United States District Court for the District of New Jersey, or if such court does not have jurisdiction or will not accept\njurisdiction, in any court of general jurisdiction in New Jersey, (ii) consents to the non-exclusive jurisdiction of any such court in any such suit,\naction or proceeding, and (iii) waives any objection which Employee may have to the laying of venue of any such suit, action or proceeding in any\nsuch court. Employee also irrevocably and unconditionally consents to the service of any process, pleadings, notices or other papers in a manner\npermitted by the notice provisions of Section 24 hereof.\n22. Term of Agreement. This Agreement shall continue in full force and effect for the duration of Employee’s employment with the Company;\nprovided, however, that after the termination of Employee’s employment during the term of this Agreement, this Agreement shall remain in effect\nuntil all of the obligations of the Parties hereunder are satisfied or have expired.\n23. Successor Company. The Company shall require any successor or successors (whether direct or indirect, by purchase, merger,\nconsolidation or otherwise) to all or substantially all of the business and/or assets of the Company, by agreement in form and substance satisfactory\nto Employee, to acknowledge expressly that this Agreement is binding upon and enforceable against the Company in accordance with the terms\nhereof, and to become jointly and severally obligated with the Company to perform this Agreement in the same manner and to the same extent that\nthe Company would be required to perform if no such succession or successions had taken place. Failure of the Company to obtain such agreement\nprior to the effectiveness of any such succession shall be a breach of this Agreement. As used in this Agreement, the Company shall mean the\nCompany as herein before defined and any such successor or successors to its business and/or assets, jointly and severally.\n- 15-\n24. Notice. All notices and other communications required or permitted hereunder or necessary or convenient in connection herewith shall be\nin writing and shall be delivered personally or mailed by registered or certified mail, return receipt requested, or by overnight express courier\nservice, as follows:\nIf to the Company, to:\nCognizant Technology Solutions Corporation\n500 Frank W. Burr Blvd.\nTeaneck, NJ 07666\nAttn: General Counsel\nIf to Employee, to:\n[insert information]\nor to such other names or addresses as the Company or Employee, as the case may be, shall designate by notice to the other Parties hereto in the\nmanner specified in this Section; provided, however, that if no such notice is given by the Company following a change in control, notice at the last\naddress of the Company or to any successor pursuant to this Section 24 shall be deemed sufficient for the purposes hereof. Any such notice shall be\ndeemed delivered and effective when received in the case of personal delivery, five days after deposit, postage prepaid, with the U.S. Postal Service\nin the case of registered or certified mail, or on the next business day in the case of overnight express courier service.\n25. Governing Law. This Agreement shall be governed by and interpreted under the laws of the State of New Jersey without giving effect to\nany conflict of laws provisions.\n26. Contents of Agreement, Amendment and Assignment.\n(a) This Agreement, including the Conduct Code, supersedes all prior agreements with respect to the subject matter hereof, sets forth the\nentire understanding between the Parties hereto with respect to the subject matter hereof and cannot be changed, modified, extended or terminated\nexcept upon written amendment executed by Employee and executed on the Company’s behalf by a duly authorized officer, except for revisions or\nadditions to Attachment B, which may be unilaterally modified by Company upon written notice to Employee; provided, however, that this\nAgreement, except as expressly set forth in Section 9, does not supersede, modify or change any existing written award agreements regarding stock\noptions, stock appreciation rights, restricted stock awards, restricted stock units, performance awards, performance units or other stock-based awards\nissued to Employee prior to the effective date of this Agreement. The provisions of this Agreement may provide for payments to Employee under\ncertain compensation or bonus plans under circumstances where such plans would not provide for\n- 16-\npayment thereof. It is the specific intention of the Parties that the provisions of this Agreement shall supersede any provisions to the contrary in such\nplans, and such plans shall be deemed to have been amended to correspond with this Agreement without further action by the Company, the\nCompany’s Board of Directors or the Board unless such amendment would contravene the provisions of section 409A of the Code and result in the\nimposition of additional taxes under section 409A of the Code upon Employee.\n(b) Nothing in this Agreement shall be construed as giving Employee any right to be retained in the employ of the Company, or as\nchanging or modifying the “at will” nature of Employee’s employment status.\n(c) All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the\nrespective heirs, representatives, successors and assigns of the Parties hereto, except that the duties and responsibilities of Employee and the\nCompany hereunder shall not be assignable in whole or in part by the Company. If Employee should die after Employee’s Termination Date and\nwhile any amount payable hereunder would still be payable to Employee hereunder if Employee had continued to live, all such amounts, unless\notherwise provided herein, shall be paid in accordance with the terms of this Agreement to Employee’s devises, legates or other designees or, if there\nis no such designee, to Employee’s estate.\n27. Severability. If any provision of this Agreement is declared illegal, invalid, or otherwise unenforceable by a court of competent\njurisdiction, such provision shall be reformed, if possible, to the extent necessary to render it legal, valid, and enforceable, or otherwise deleted, and\nthe remainder of the terms of this Agreement shall not be affected except to the extent necessary to reform or delete such illegal, invalid, or\nunenforceable provision.\n28. Remedies Cumulative; No Waiver. No right conferred upon the Parties by this Agreement is intended to be exclusive of any other right or\nremedy, and each and every such right or remedy shall be cumulative and shall be in addition to any other right or remedy given hereunder or now or\nhereafter existing at law or in equity. No delay or omission by a Party in exercising any right, remedy or power hereunder or existing at law or in\nequity shall be construed as a waiver thereof.\n29. Miscellaneous. All section headings are for convenience only. This Agreement may be executed in several counterparts, each of which is\nan original. It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any of the other\ncounterparts.\n30. Section 409A.\n(a) Interpretation. This Agreement is intended to comply with the requirements of section 409A of the Code, and specifically, with the\n“short-term deferral exception” under Treas. Reg. section 1.409A-1(b)(4) and the “separation pay exception” under Treas. Reg. section 1.409A -1(b)\n(9)(iii), and shall in all respects be administered and construed in accordance with section 409A of the Code. If any payment or benefit hereunder\ncannot be provided or made at the time specified herein without incurring sanctions on Employee under section 409A of the Code,\n- 17-\nthen such payment or benefit shall be provided in full at the earliest time thereafter when such sanctions will not be imposed. For purposes of section\n409A of the Code, all payments to be made upon a Termination of Employment under this Agreement may only be made upon a “separation from\nservice” (within the meaning of such term under section 409A of the Code), each payment made under this Agreement shall be treated as a separate\npayment, the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments, and if a\npayment is not made by the designated payment date under this Agreement, the payment shall be made by December 31 of the calendar year in\nwhich the designated date occurs. To the extent that any payment provided for hereunder would be subject to additional tax under section 409A of\nthe Code, or would cause the administration of this Agreement to fail to satisfy the requirements of section 409A of the Code, such provision shall\nbe deemed null and void to the extent permitted by applicable law, and any such amount shall be payable in accordance with 6(b) below. In no event\nshall the Employee, directly or indirectly, designate the calendar year of payment. Nothing herein shall be construed as having modified the time and\nform of payment of any amounts or payments of “deferred compensation” (as defined under Treas. Reg. section 1.409A-1(b)(1), after giving effect\nto the exemptions in Treas. Reg. sections 1.409A-1(b)(3) through (b)(12)) that were otherwise payable pursuant to the terms of any agreement\nbetween the Company and Employee in effect on or after January 1, 2005 and prior to the date of this Agreement.\n(b) Payment Delay. Notwithstanding anything herein to the contrary, if it is necessary to postpone the commencement of any payments\nor benefits otherwise payable under this Agreement as a result of Employee’s “separation from service” with the Company to prevent the imposition\nof any accelerated or additional tax under section 409A of the Code, then the Company will postpone the commencement of the payment of any such\npayments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to Employee) that are not otherwise\npaid within the “short-term deferral exception” under Treas. Reg. section 1.409A-1(b)(4) and the “separation pay exception” under Treas. Reg.\nsection 1.409A -1(b)(9)(iii), until the first payroll date that occurs after the date that is six months following Employee’s “separation of service” with\nthe Company. If any payments are postponed due to such requirements, such postponed amounts will be paid to Employee in a lump sum on the first\npayroll date that occurs after the date that is six months following Employee’s “separation of service” with the Company. If Employee dies during\nthe postponement period prior to the payment of the postponed amount, the amounts withheld on account of section 409A of the Code shall be paid\nto the personal representative of Employee’s estate within sixty (60) days after the date of the Employee’s death.\n(c) Reimbursements. All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements\nof section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during Employee’s\nlifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar\nyear may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made\non or before the last day of the taxable year following the year in which the expense is incurred, and (iv) the right to reimbursement is not subject to\nliquidation or exchange for another benefit.\n- 18-\n31. Recoupment Policy. Employee acknowledges that Employee shall be subject to and hereby agrees to abide by the terms of any clawback or\nrecoupment policy that the Company has adopted or may hereafter adopt, as may be amended from time to time, with or without notice (the\n“Recoupment Policy”) to further the Company’s interests in enhancing its corporate governance practices and/or to comply with applicable law, rules\nor regulations promulgated by the Securities and Exchange Commission or the rules of the national securities exchange on which shares of the\ncommon stock of the Company are listed for trade. Employee understands that pursuant to the Recoupment Policy, the Company may seek to recoup\nall or part of any severance payments, bonus or other incentive compensation paid to certain officers and former officers, including Equity Awards,\nin the event that the Company is required to restate its financial statements. In consideration of the continued benefits to be received from the\nCompany (or a subsidiary) and the right to participate in, and receive future awards under, the Company’s cash and equity-based incentive programs,\nEmployee hereby acknowledges, understands and agrees that:\n(a) The Recoupment Policy applies to severance, cash bonuses and other incentive compensation, including Equity Awards, paid or\nawarded to Employee prior to or after the date on which the Recoupment Policy is adopted, and Employee agrees that, to the extent provided in the\nRecoupment Policy, the Recoupment Policy shall apply to equity and other award agreements outstanding as of the date of this Agreement or\nhereafter executed, and such agreements shall be deemed amended by, and to incorporate, the terms of the Recoupment Policy even if the\nRecoupment Policy is not explicitly referenced therein;\n(b) The Company shall be fully entitled to enforce the Recoupment Policy against Employee in accordance with its terms, and Employee\npromptly shall comply with any demand authorized by the Board of Directors of the Company pursuant to the terms of the Recoupment Policy for\nrepayment, return or rescission of, severance payments, a cash bonus or other incentive compensation, including Equity Awards, subject to the\nRecoupment Policy; and\n(c) Nothing in this acknowledgement shall be construed to expand the scope or terms of the Recoupment Policy, and Employee is not\nwaiving any defenses Employee may have in the event of an action for recoupment of compensation under the Recoupment Policy, other than\n(i) waiving any defense regarding the retroactive application of the Recoupment Policy to prior or existing payments or awards and (ii) waiving any\nclaim that the integration clause of any agreement excludes the application of the Recoupment Policy.\n[Signature Page Follows]\n- 19-\nIN WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed this Agreement as of the date first above written.\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nAttest:\nBy:\nIts:\nWitness\n[Employee]\n- 20-\nATTACHMENT A\n1. The following is a complete list of all inventions and works that have been conceived, made, reduced to practice, developed, authored,\ncreated, drawn or written by me alone or jointly with others prior to my engagement by the Company.\n̈\nNone.\nSee below.\nx\nDue to a preexisting contract with another party, I cannot disclose certain Inventions or Works that would otherwise be included on the\nabove-described list.\n̈\nAdditional sheets are attached.\n(number)\nEMPLOYEE:\nSignature:\nName:\n(Print)\nTitle:\nDate:\n- 21-\nATTACHMENT B – List of Direct Competitors\n- 22-\nSCHEDULE TO EXHIBIT 10.4 – FORM OF AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AND NON-DISCLOSURE,\nNON-COMPETITION, AND INVENTION ASSIGNMENT AGREEMENT\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION HAS ENTERED INTO AN AMENDED AND RESTATED EXECUTIVE\nEMPLOYMENT AND NON-DISCLOSURE, NON-COMPETITION, AND INVENTION ASSIGNMENT AGREEMENT WITH EACH OF THE\nFOLLOWING PERSONS:\nFRANCISCO D’SOUZA\nGORDON COBURN\nKAREN MCLOUGHLIN\nRAMAKRISHNAN CHANDRASEKARAN\nRAJEEV MEHTA\nMALCOLM FRANK\nSTEVEN SCHWARTZ\nIDENTICAL TO THE FORM PROVIDED HEREIN.\n- 23-	EX-10.4 2 d450416dex104.htm EX-10.4\nExhibit 10.4\nAMENDED AND RESTATED EXECUTIVE EMPL.OYMENT\nAND NON-DISCIL.OSURE, NON-COMPETITION,\nAND INVENTION ASSIGNMENT AGREEMENT\nThis Amended and Restated Executive Employment and Non-Disclosure, Non-Competition, and Invention Assignment Agreement (this\n“Agreement”) is made as of the ____ day of , 20__ (the “Effective Date”) by and between Cognizant Technology Solutions Corporation, a\nDelaware corporation (the “Company” (where applicable, the definition of Company shall include the Company’s subsidiaries and affiliates and any\nsuccessors or assigns)), and (“Employee™).\nWHEREAS, Employee is currently employed by the Company as its ; and\nWHEREAS, the Company desires to continue to retain the services of Employee; and\nWHEREAS, the Parties desire to amend and restate, in its entirety, the parties’ prior agreements pertaining to Employee’s employment,\nand set forth the new terms and conditions of Employee’s employment by the Company;\nNOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth and intending to\nbe legally bound hereby, the Company and Employee (individually a “Party” and together, the “Parties”) agree as follows:\n1. Definitions.\n(a) “Annual Base Salary” shall mean the rate of annual base salary paid or payable to Employee by the Company (including authorized\ndeferrals and salary reduction amounts) immediately prior to Employee’s Termination Date.\n(b) “Board” shall mean the Board of Directors of Cognizant Technology Solutions Corporation.\n(c) “Cause” shall mean (i) willful malfeasance or willful misconduct by the Employee in connection with his employment,\n(ii) continuing failure to perform such duties as are reasonably requested by Employee’s supervisor, (iii) failure by the Employee to observe material\npolicies of the Company applicable to the Employee, (iv) the commission by the Employee of (x) any felony or (y) any misdemeanor involving\nmoral turpitude, (v) Employee engaging in any fraudulent act or act of embezzlement, or (vi) any material breach of this Agreement.\n(d) “Code” means the Internal Revenue Code of 1986, as amended and the regulations promulgated thereunder.\n(e) “Disability” means Employee’s total and permanent disability as determined in accordance with the Company’s long-term disability\npolicy, whether or not Employee is covered by such policy.\n1-\n(f) “Good Reason” means, the occurrence of one or more of the following events or actions:\n(i) A material diminution by the Company of Employee’s authority, duties or responsibilities;\n(ii) A material diminution in Employee’s overall compensation package, which is not otherwise caused by an overall policy by\nthe Company to reduce senior employee compensation throughout the Company;\n(iii) The failure of the Company to obtain from its successors the express assumption of this Agreement; or\n(iv) A change, without Employee’s consent, in the principal place of work of the Employee to a location that is more than 50\nmiles from his primary work location as of the date of this Agreement, but only if such change occurs on or after a Change in Control.\n() “Notice of Termination” means a written notice which (i) indicates the specific termination provision in this Agreement relied upon,\nand (ii) briefly summarizes the facts and circumstances deemed to provide a basis for termination of Employee’s employment under the provision so\nindicated.\n(h) “Termination Date” shall mean the last day of Employee’s employment with the Company.\n(i) “Termination of Employment” shall mean the termination of Employee’s active employment relationship with the Company.\n2. Employment. Company hereby continues to employ Employee, and Employee hereby continues to accept such employment, upon the terms\nand conditions set forth herein.\n3. Duties.\n(a) Position. Employee continues to be employed as [insert position title] and shall have the duties and responsibilities assigned by\n[insert title] both upon initial hire and as may be reasonably assigned from time to time. Employee shall perform faithfully and diligently all duties\nassigned to Employee. Company reserves the right to modify Employee’s position and duties at any time in its sole and absolute discretion, provided\nthat the duties assigned are consistent with the position of a senior executive and that Employee continues to report to [insert title].\n \n(b) Best Efforts/Full-time. To the maximum extent permitted by law, Employee agrees to devote Employee’s best efforts and entire\nbusiness time and attention to the Company’s Business during the term of Employee’s employment with the Company. Employee agrees that, during\nthe term of Employee’s employment, except as otherwise approved in writing by the Company, which approval the Company may in its absolute\ndiscretion withhold, Employee will not, either directly or indirectly, or for himself/herself or through, on behalf of, or in conjunction with any\nperson, persons or legal entity, operate, engage in, assist, or be employed by any business activity to or for the benefit of any person or entity other\nthan the Company; provided that the\n-\nforegoing is not intended to prevent an Employee from pursuing hobbies or participating in any other activity which is not to the detriment of\nCompany. Employee further acknowledges and agrees that Employee has access to the Company’s Core Values and Standards of Business Conduct\n(the “Conduct Code”) located at www.cognizant.com, and Employee has read and understands the Conduct Code and shall abide by all the terms of\nsaid Conduct Code, as may be amended from time to time, and said Conduct Code shall be incorporated into this Agreement. Employee will abide\nby all policies and decisions made by Company, as well as all applicable federal, state and local laws, regulations or ordinances. Employee will act in\nthe best interest of Company at all times.\n(c) Work Location. Employee’s principal place of work shall be located in [insert city, state], or such other location as the parties may\nagree upon from time to time.\n4. At-Will Employment. Employee’s employment with the Company will be “at will,” meaning it is for no specified term and may be\nterminated by Employee or the Company at any time, with or without Cause or advance notice, subject to the provisions of Section 9 below.\n5. Compensation.\n(a) Annual Base Salary. As compensation for Employee’s performance of Employee’s duties hereunder, Company shall pay to Employee\na base salary as most recently determined by the Compensation Committee of the Board and last communicated to the Employee, as may be\nmodified by the Compensation Committee of the Board, payable in accordance with the normal payroll practices of Company, less required\ndeductions for state and federal withholding tax, social security and all other employment taxes and payroll deductions. In the event Employee’s\nemployment under this Agreement is terminated by either party, for any reason, Employee will earn the Annual Base Salary prorated to the date of\ntermination.\n(b) Incentive Compensation. Employee will be eligible to earn incentive compensation as determined by the Compensation Committee\nof the Board in accordance with the bonus plan(s) provided to Employee by Company, in accordance with the terms and conditions of such plan(s).\n(c) Stock Options and Other Equity Awards. Except as set forth herein, this Agreement does not modify or change the existing\nagreements regarding stock options, stock appreciation rights, restricted stock awards and restricted stock units (each, an “Equity Award” and\ncollectively, “Equity Awards”) previously issued to Employee.\n6. Customary Fringe Benefits. Employee will be eligible for all customary and usual fringe benefits generally available to Employees of\nCompany subject to the terms and conditions of Company’s benefit plan documents. Company reserves the right to change or eliminate the fringe\nbenefits on a prospective basis, at any time, effective upon notice to Employee.\n7. Business Expenses. Employee will be reimbursed for all reasonable, out-of-pocket business expenses incurred in the performance of\nEmployee’s duties on behalf of Company. To obtain reimbursement, expenses must be submitted promptly with appropriate supporting\ndocumentation in accordance with Company’s policies.\n_3-\n8. Company Access. Employee agrees and consents that, during the term of Employee’s employment with the Company and thereafter, the\nCompany may review, audit, intercept, access and disclose all messages created, received or sent over the electronic mail and internet access system\nprovided by the Company with or without notice to Employee and that such review, audit, interception, access, or disclosure may occur during or\nafter working hours. Employee further consents and agrees that the Company may, at any time, access and review the contents of all computers,\ncomputer disks, other data storage equipment and devices, files, desks, drawers, closets, cabinets and work stations which are either on the\nCompany’s premises or which are owned or provided by the Company.\n9. Involuntary Termination of Employment.\n(a) Prior to a Change in Control. In the event that Employee’s employment with the Company is involuntarily terminated by the\nCompany for any reason other than Cause, death or Disability or in the event Employee resigns his employment for Good Reason pursuant to\nSection 10 and the Company’s right to cure (as set forth in Section 10) has expired (an “Involuntary Termination”), and in either such case\nEmployee’s employment termination becomes effective before any Change in Control (as defined in Section 9(e) below) has occurred following the\ndate of this Agreement, Employee shall be entitled to the payments and benefits described below, provided that Employee executes and does not\nrevoke the Release (as defined in Section 11) and the Release first becomes effective:\n(i) Employee shall receive continued payment of the Employee’s Annual Base Salary, paid in regular installments in accordance\nwith the Company’s normal payroll practices, over a period of twenty-two (22) months, commencing on or as soon as practicable after the date the\nRelease becomes effective and within thirty-five days following Employee’s Termination Date.\n(ii) The Company shall, for a period of twelve (12) months following the date of Employee’s Termination of Employment, pay\nthe Employee each month an amount equal to the monthly COBRA medical insurance cost under the Company’s group medical plan for Employee\nand, where applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable, Employee’s spouse and\ndependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments specified\nunder this Section 9(a)(ii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage terminates for\nany reason before the expiration of the 12-month period.\n(iii) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the Company\nand would have vested had Employee remained employed by the Company during the twelve (12) month period following Employee’s Termination\nDate shall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such Equity Awards shall continue\nto be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n4-\n(iv) With respect to any outstanding Equity Award that was subject to vesting in whole or in part based on achievement of\nperformance objective(s), to the extent that the applicable performance period has expired on or before Employee’s Termination Date, the\nperformance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future dates,\nthe portion of such Equity Award that would have vested had Employee remained employed by the Company during the twelve (12) month period\nfollowing Employee’s Termination Date shall become fully vested and exercisable as of Employee’s Termination Date. Such Equity Award shall\ncontinue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s Termination\nDate and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the Company. The payment\nof amounts described in this Section 9(a)(v) are not conditioned upon the Release becoming effective unless the applicable benefit plan or program\nprovides otherwise.\n(b) Coincident with or within One Year After a Change in Control. In the event that Employee suffers an Involuntary Termination that becomes\neffective coincident with, or within the twelve (12) month period immediately after, the first occurrence of a Change in Control following the date of\nthis Agreement, Employee shall be entitled to the payments and benefits described below in this Section 9(b) in lieu of, and not in addition to, the\npayments and benefits described in Section 9(a); provided that Employee executes and does not revoke the Release (as defined in Section 11) and the\nRelease first becomes effective:\n(i) Employee shall receive a cash payment equal to one times Employee’s Annual Base Salary, such amount to be paid in regular\ninstallments in accordance with the Company’s normal payroll practices over a period of twelve (12) months, commencing on or as soon as\npracticable after the date the Release becomes effective and within thirty-five days following Employee’s Termination Date.\n(ii) Employee shall receive a cash payment equal to the amount of the target annual bonus that the Employee would otherwise\nhave been eligible to receive for the performance year in which the Employee’s Termination Date occurs, assuming for this purpose that the\nEmployee and Company achieved 100% of applicable performance targets and objectives. Payment shall be made in a lump sum payment on or as\nsoon as practicable after the date the Release becomes effective and within thirty-five days following Employee’s Termination Date.\n(iii) The Company shall, for a period of twelve (12) months following the date of Employee’s Termination of Employment, pay\nEmployee each month an amount equal to the monthly COBRA medical insurance cost under the Company’s group medical plan for Employee and,\nwhere applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable, Employee’s spouse and dependents,\nare eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments specified under this\nSection 9(b)(iii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage terminates for any\nreason before the expiration of the 12-month period.\n_5-\n(iv) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the Company\nshall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such vested Equity Awards shall\ncontinue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) Outstanding Equity Awards the vesting of which is conditioned, in whole or in part, upon the achievement of performance\nobjectives shall become vested and exercisable as follows:\n(A) To the extent that the applicable performance period has expired on or before Employee’s Termination Date, the performance\nobjective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future dates, such\nEquity Award shall become fully vested and exercisable as of Employee’s Termination Date.\n(B) To the extent that the applicable performance period has not expired on or before Employee’s Termination Date, the Company shall\npro-rate the performance objective(s) for the portion of the performance period that has transpired up to the date of Closing of the Change in\nControl, make a good faith determination of the level of achievement of such pro-rated performance objective as of such Closing Date, and\ntreat as fully vested and exercisable a proportionate amount of such Equity Award that corresponds with the level of achievement of the pro-\nrated performance objective, disregarding any future service conditions that otherwise would apply to such Equity Award.\n(vi) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s Termination\nDate and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the Company. The payment\nof amounts described in this Section 9(b)(vi) are not conditioned upon the Release becoming effective unless the applicable benefit plan or program\nprovides otherwise.\n(c) Termination Due to Death, Disability, or For Cause. If Employee is terminated due to death, Disability, or for Cause, Employee shall\nreceive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s Termination Date and any benefits accrued and\nearned in accordance with the terms of any applicable benefit plans and programs of the Company; all other Company obligations to Employee will\nbe extinguished as of the Termination Date.\n(d) Notice of Termination. Any termination on account of this Section 9 shall be communicated by a Notice of Termination to the other\nParties hereto given in accordance with Section 24 hereof.\n(e) Definition of Change in Control. For purposes of this Agreement, the term “Change in Control” shall have the meaning set forth in\nthe Company’s 2009 Incentive Compensation Plan, as amended from time to time or any successor plan in effect as of Employee’s Termination\nDate.\n-6-\n10. Resignation for Good Reason. If Employee provides notice of his intent to terminate for Good Reason, then, subject to the expiration of the\ncure period and Employee’s actual termination as described below, such resignation shall be deemed an Involuntary Termination for purposes of this\nAgreement and Employee shall be entitled to the payments and benefits described in Section 9 subject to the requirements set forth in this\nAgreement, including Section 11. Employee must provide written notice to the Company of his intent to terminate his employment for Good Reason\nwithin thirty (30) days of the action or omission giving rise to such claim of Good Reason. Thereafter, the Company shall have a period of thirty\n(30) days within which it may correct the event or action that constitutes the grounds for Good Reason as set forth in Employee’s notice of\ntermination. If the Company does not correct the event or action prior to the expiration of the foregoing cure period, Employee must terminate his\nemployment for Good Reason within thirty (30) days after the expiration of the cure period, in order for the termination to be considered a Good\nReason termination under this Agreement.\n11. Release. Notwithstanding the foregoing, no payments or benefits shall be provided under Sections 9 and 10, as applicable (except for those\npayments that are owed pursuant to applicable law and/or are specifically not conditioned upon Employee’s execution of a release), unless Employee\nexecutes, and does not revoke, the Company’s then standard written general release (the “Release”) of any and all claims against the Company and\nall related parties with respect to all matters arising out of Employee’s employment by the Company (other than any entitlements under the terms of\nthis Agreement or under any other plans or programs of the Company in which Employee participated and under which Employee has accrued and\nearned a benefit) or the termination thereof. The Company will provide Employee with the form of release agreement within seven days after\nEmployee’s separation from service. To be entitled to the severance or other benefits, Employee must execute and deliver to the Company the release\nagreement on or before the last day of the minimum required waiver consideration period provided under the Age Discrimination in Employment\nAct or other applicable law or such later date specified in the release agreement. If Employee timely delivers an executed release agreement to the\nCompany, and Employee does not revoke the release agreement during the minimum revocation period required under applicable law, if any, the\nseverance or other benefits shall be paid or commence being paid, as specified in this Agreement, subject to any delay required pursuant to\nSection 30(b) of this Agreement. If, however, the period during which Employee has discretion to execute or revoke the release agreement straddles\ntwo calendar years, the cash severance or other benefits shall be paid or commence being paid, as applicable, as soon as practicable in the second of\nthe two calendar years, regardless of within which calendar year Employee actually delivers the executed release agreement to the Company, subject\nto the release agreement first becoming effective. Consistent with section 409A of the Code, Employee may not, directly or indirectly, designate the\ncalendar year of payment. Nothing in this Section 11 shall be construed to alter the terms of this Agreement that condition Employee’s entitlement to\nany severance or other benefits upon Employee’s compliance with the restrictive covenants and any other terms and conditions specified in this\nAgreement.\n12. Other Payments. Any payments and benefits that become due under Sections 9 and 10 hereof shall be in addition to (but not in duplication\nof) and not in lieu of any payments and benefits due to Employee under any other plan, policy or program of the Company, except that Employee\nshall not be entitled to any payments and benefits under the Company’s then current severance pay policies.\n_7-\n13. No Mitigation. Employee shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by seeking\nother employment or otherwise, nor shall the amount of any payment or benefit provided for herein be reduced by any compensation earned by other\nemployment or otherwise; provided, however, that any obligation of the Company to provide COBRA healthcare continuation coverage under\nSections 4 and 5 hereof shall cease upon Employee becoming covered under a healthcare plan of another employer.\n14. Non-Exclusivity of Rights. Except as provided in Section 12, nothing in this Agreement shall prevent or limit Employee’s continuing or\nfuture participation in or rights under any benefit, bonus, incentive or other plan or program provided by the Company or any of its subsidiaries or\naffiliates and for which Employee may qualify.\n15. No Set-Off. Other than with respect to the Recoupment Policy (as hereinafter defined), the Company’s obligation to make the payments\nprovided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any circumstances, including, without\nlimitation, any set-off, counterclaim, recoupment, defense or other right which the Company may have against Employee or others.\n16. Taxes.\n(a) All payments under this Agreement shall be made subject to applicable tax withholding, and the Company shall withhold from any\npayments under this Agreement all federal, state and local taxes as the Company is required to withhold pursuant to any law or governmental rule or\nregulation. Employee shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect to any payment\nreceived under this Agreement, including, without limitation, any excise tax imposed by section 4999 of the Code.\n(b) If the payments and benefits received or to be received by Employee in connection with a Change in Control or the termination of\nEmployee’s employment (whether payable pursuant to the terms of this Agreement (“Contract Payments”) or any other plan, arrangement or\nagreement with the Company or any affiliate (collectively with the Contract Payments, the “Total Payments”), would constitute a “parachute\npayment” under Section 280G of the Code, then the Total Payments shall be reduced, in the manner set forth below, by the minimum amount\nnecessary to result in no portion of the Total Payments being non-deductible to the Company pursuant to Section 280G of the Code or subject to the\nexcise tax imposed under Section 4999 of the Code.\n(c) All determinations required to be made under this Section 16, including whether a reduction in Total Payments is required, the\namount of any such reduction and the assumptions to be utilized in arriving at such determination, shall be made by an accounting or law firm of\nrecognized standing reasonably selected by the Company (the “Firm”), which may be, but will not be required to be, the Company’s independent\nauditors. The Firm shall submit its determination and detailed supporting calculations to both Employee and the Company within fifteen (15) days\nafter receipt of a notice from either the Company or Employee that Employee may receive payments which may be “parachute payments.” If the\nFirm determines that a reduction is required by this Section 16, the Contract Payments consisting of cash severance shall be reduced to the extent\nnecessary so that no portion of the Total Payments shall be subject to the excise tax imposed\n_8-\nby section 4999 of the Code, and the Company shall pay such reduced amount to Employee in accordance with the terms of this Agreement. If\nadditional Contract Payments must be reduced pursuant to this Section 16 after the cash severance has been reduced to zero, the Contract Payments\nallocable to performance-vested Equity Awards shall next be reduced, followed by the Contract Payments allocable to time-vested Equity Awards, to\nthe extent necessary to satisfy the requirements of this Section 16. If the Firm determines that none of the Total Payments, after taking into account\nany reduction required by this Section 16, constitutes a “parachute payment” within the meaning of section 280G of the Code, it will, at the same\ntime as it makes such determination, furnish Employee and the Company an opinion that Employee has substantial authority not to report any excise\ntax under section 4999 of the Code on Employee’s federal income tax return.\n(d) Employee and the Company shall each provide the Firm access to and copies of any books, records, and documents in the possession\nof Employee or the Company, as the case may be, reasonably requested by the Firm, and otherwise cooperate with the Firm in connection with the\npreparation and issuance of the determinations and calculations contemplated by this Section 16. The fees and expenses of the Firm for its services in\nconnection with the determinations and calculations contemplated by this Section 16 shall be borne by the Company.\n17. Confidential Information. Employee agrees that Employee’s services to the Company have been and will continue to be of a special,\nunique and extraordinary character, and that Employee’s position places Employee in a position of confidence and trust with the Company’s\ncustomers and employees. Employee also recognizes that Employee’s position with the Company will give Employee substantial access to\nConfidential Information (as defined below), the disclosure of which to competitors of the Company would cause the Company to suffer substantial\nand irreparable damage. Employee recognizes, therefore, that it is in the Company’s legitimate business interest to restrict Employee’s use of\nConfidential Information for any purposes other than the discharge of Employee’s employment duties at the Company, and to limit any potential\nappropriation of Confidential Information by Employee for the benefit of the Company’s competitors and to the detriment of the Company.\nAccordingly, Employee agrees as follows:\n(a) Employee will not at any time, whether during or after the termination of Employee’s employment, reveal to any person or entity any\nof the trade secrets or confidential information of the Company or of any third party which the Company is under an obligation to keep confidential\n(including but not limited to trade secrets or confidential information respecting inventions, products, designs, methods, know-how, techniques,\nsystems, processes, software programs, works of authorship, customer lists, projects, plans and proposals) (“Confidential Information”), except as\nmay be required in the ordinary course of performing Employee’s duties as an employee of the Company, and Employee shall keep secret all matters\nentrusted to Employee and shall not use or attempt to use any such information in any manner which may injure or cause loss or may be calculated\nto injure or cause loss whether directly or indirectly to the Company. By way of example and not limitation, Confidential Information also includes\nany and all information, whether or not meeting the legal definition of a trade secret, concerning the Company’s actual, planned or contemplated:\n(i) marketing plans, business plans, strategies, forecasts, budgets, projections and costs; (ii) personnel information; (iii) customer, vendor and\nsupplier lists; (iv) customer, vendor and supplier needs, transaction histories, contacts, volumes, characteristics,\n9.\nagreements and prices; (v) promotions, operations, sales, marketing, and research and development; (vi) business operations, internal structures and\nfinancial affairs; (vii) software and operating systems and procedures; (viii) pricing structure of the Company’s services and products; (ix) proposed\nservices and products; (x) contracts with other parties; (xi) performance characteristics of the Company’s products; and (xii) Inventions and Works as\ndefined in Section 18. Confidential Information also includes any and all information of Company’s clients and customers which is deemed\nconfidential by such clients and customers (whether past, present or potential), including, but not limited to: marketing tools, inventions, processes,\ncontact lists, materials, software program code, logic diagrams, flow charts, procedural diagrams, computer programming techniques and know how,\nmaps and any documentation related thereto.\n(b) The above restrictions shall not apply to: (i) information that at the time of disclosure is in the public domain through no fault of\nEmployee; (ii) information received from a third party outside of the Company that was publicly disclosed without a breach of any confidentiality\nobligation; or (iii) information approved for release by written authorization of the Company. In addition, in the event that Employee is requested or\nrequired (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to\ndisclose any of the Confidential Information, it is agreed that Employee will provide the Company with prompt notice of such request(s) so that the\nCompany may seek an appropriate protective order or other appropriate remedy and/or waive compliance with the confidentiality provisions of this\nAgreement. In the event that such protective order or other remedy is not obtained, or the Company grants a waiver hereunder, Employee may\nfurnish that portion (and only that portion) of the Confidential Information which Employee is legally compelled to disclose and will exercise its\nreasonable best efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information so furnished.\n(c) Further, Employee agrees that during Employee’s employment Employee shall not take, use or permit to be used any notes,\nmemoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials of any nature\nrelating to any matter within the scope of the business of the Company or concerning any of its dealings or affairs otherwise than for the benefit of\nthe Company. Employee further agrees that Employee shall not, after the termination of Employee’s employment, use or permit to be used any such\nnotes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials, it being\nagreed that all of the foregoing shall be and remain the sole and exclusive property of the Company and that, immediately upon the termination of\nEmployee’s employment, Employee shall deliver all of the foregoing plus any other Confidential Information, and all copies thereof, to the\nCompany, at its main office.\n(d) Employee agrees that upon the termination of Employee’s employment with the Company, Employee will not take or retain without\nwritten authorization any documents, files or other property of the Company, and Employee will return promptly to the Company any such\ndocuments, files or property in Employee’s possession or custody, including any copies thereof maintained in any medium or format. Employee\nrecognizes that all documents, files and property which Employee has received and will receive from the Company, including but not limited to\nscientific research, customer lists, handbooks, memoranda, product specifications, and other materials (with the exception of documents relating to\nbenefits to which Employee might be entitled following the termination of Employee’s employment with the Company), are for the\n-10-\nexclusive use of the Company and employees who are discharging their responsibilities on behalf of the Company, and that Employee has no claim\nor right to the continued use, possession or custody of such documents, files or property following the termination of Employee’s employment with\nthe Company.\n18. Intellectual Property.\n(a) Employee agrees to disclose fully, promptly, and in writing to the Company any and all Inventions and Works (each as defined\nbelow) which are conceived, made, reduced to practice, developed, authored, created, drawn or written at any time while Employee is employed by\nthe Company and for a period of six (6) months thereafter. Employee will generate and provide to the Company adequate and current written records\nof all Inventions and Works in the form of notes, sketches, drawings, reports, flow charts, procedural diagrams, logic diagrams, software program\ncode, procedural diagrams, computer programming techniques or other documents relating thereto or in such other form as will be requested by the\nCompany, which records and any copies thereof will be and will remain the exclusive property of the Company and will be available to the\nCompany at all times, all available information relating thereto (with all necessary plans and models) to the Company.\n(b) The Company and Employee agree that “Inventions,” is defined in this Agreement to include any and all new or useful ideas,\ndevelopments, discoveries, improvements, designs, formulas, modifications, trademarks, service marks, trade secrets, and other intellectual property,\nwhether patentable or not (including without limitation any technology, computer programs, software, software program code, logic diagrams,\nflowcharts, procedural diagrams, computer programming techniques, test, concept, idea, process, method, composition of matter, formula or\ntechnique), and all know-how related thereto, which Employee conceives, makes, reduces to practice, or develops, solely or jointly with others\n(i) which relate to the actual or contemplated business, work or activities of the Company, (ii) which result from or are suggested by any work which\nEmployee has done or may do on behalf of the Company, or by any information that Employee may receive by virtue of Employee’s employment by\nthe Company, or (iii) which are developed, tested, improved or investigated either in part or entirely on time for which Employee was paid by the\nCompany, or with the use of premises, equipment or property provided, owned, leased, or contracted for by or on behalf of the Company.\n(c) The Company and Employee agree that “Works” is defined in this Agreement to include any and all materials for which copyright\nprotection may be obtained, including without limitation literary works (including books, pamphlets, articles and other writings), mask works,\nartistic works (including designs, graphs, drawings, blueprints and other graphic works), computer programs, software program code, logic\ndiagrams, flow charts, procedural diagrams, computer programming, compilations, recordings, photographs, motion pictures and other audio-visual\nworks which Employee authors, conceives, creates, draws, makes, or writes, solely or jointly with others (i) which relate to the actual or\ncontemplated business, work or activities of the Company, (ii) which result from or are suggested by any work which Employee has done or may do\non behalf of the Company, or by any information that Employee may receive by virtue of Employee’s employment by the Company, or (iii) which\nare developed, tested, improved or investigated either in part or entirely on time for which Employee was paid by the Company, or with the use of\npremises, equipment or property provided, owned, leased, or contracted for, by, or on behalf of the Company.\n-11-\n(d) Employee agrees to assign, transfer and convey, and hereby assigns, transfers and conveys to the Company all of the rights, titles and\ninterests in and to any and all such Inventions and Works that Employee has or may acquire in such Inventions or Works which are conceived, made,\nreduced to practice, developed, authored, created, drawn or written at any time while Employee is employed by the Company and for a period of six\n(6) months thereafter. Employee agrees that the Company will be the sole owner of all patents, copyrights, trademarks and other intellectual property\nrights in connection therewith, and agrees to take all such actions as may be requested by the Company during Employee’s employment with the\nCompany and at any time thereafter, with respect to any such Inventions or Works to confirm or evidence such assignment, transfer, conveyance or\nownership, and to assist in the Company’s maintenance, enforcement, license, assignment, transfer, or conveyance of rights in respect of the\nInventions or Works. Employee understands that if he is employed by the Company in California, his obligation to assign rights in inventions does\nnot apply to an invention that qualifies fully under the provisions of California Labor Code Section 2870.\n(e) By way of example and not limitation, at any time and from time to time, upon the request of the Company, Employee agrees to\nexecute, acknowledge, swear to, seal and deliver to the Company, any and all lawful instruments, documents and papers, give evidence and do any\nand all other lawful acts that, in the opinion of the Company, are or may be necessary or desirable to document such assignment, transfer and\nconveyance or to enable the Company to file and prosecute applications for and to acquire, maintain and enforce any and all patents, trademarks,\ncopyrights and other property rights under United States, local, state or foreign law with respect to any such Inventions or Works or to obtain any\nextension, validation, reissue, continuance or renewal of any such patent, trademark, copyright, or other intellectual property right. By way of further\nexample and not limitation, Employee agrees to meet with the Company representatives or attorneys for the purpose of initiating, maintaining or\ndefending litigation, administrative or other proceedings; and to participate fully in litigation, administrative or other proceedings as requested by the\nCompany. In the event that the Company may be unable, for any reason whatsoever, after reasonable effort, to secure Employee’s signature on any\npatent, copyright, trademark or other intellectual property application or other papers, Employee hereby irrevocably designates and appoints the\nCompany and its duly authorized officers and agents, as Employee’s agent and attorney-in-fact to act for and on behalf of Employee to execute,\nacknowledge, swear to, seal and deliver to the Company and to file any such application or applications or other papers, and to do all other lawfully\npermitted acts to further the provisions of Section 18 of this Agreement.\n(f) The Company agrees to reimburse Employee for reasonable expenses incurred by Employee in complying with the provisions of\nSections 18(d) and 18(e) of this Agreement. The Company and Employee agree that Employee is not entitled to additional compensation beyond that\npaid to Employee for the period of time that he is employed by the Company, which compensation, along with the Company’s understandings set\nforth in this Agreement, is expressly acknowledged to be adequate consideration for all of the Employee promises and obligations set forth in this\nAgreement.\n-12-\n(g) Employee expressly acknowledges and states that all Works which are made by Employee (solely or jointly with others) are being\ncreated at the instance of the Company and are “works made for hire,” as that term is defined in the Copyright Act of 1976, 17 USC § 101. In the\nevent that such laws are inapplicable or in the event that any such Works, or any part thereof, are determined by a court of competent jurisdiction not\nto be a work made for hire, this Agreement will operate as an irrevocable and unconditional assignment by Employee to The Company of all\nEmployee’s right, title and interest (including, without limitation, all rights in and to the copyrights throughout the world, including the right to\nprepare derivative works and the rights to all renewals and extensions) in the Works in perpetuity.\n(h) Employee represents that Attachment A to this Agreement describes all inventions and works, whether patentable or not, which have\nbeen conceived, made, reduced to practice, developed, authored, created, drawn or written prior to Employee’s employment by the Company;\nprovided, however, that, Employee has not disclosed in Attachment A information that is a trade secret belonging to another, or which is the subject\nof a contract preventing Employee’s disclosure of the information to the Company.\n19. Non-Competition and Non-Solicitation. In further consideration of the compensation to be paid to Employee hereunder, Employee\nacknowledges that during the course of Employee’s employment with the Company, Company will provide Employee Confidential Information,\nwhich Employee promises to not disclose. Further, Employee will become and/or remain familiar with the Company’s trade secrets and with other\nConfidential Information concerning the Company and that Employee’s services shall be of special, unique and extraordinary value to the Company,\nand therefore, the Employee agrees that some restrictions on Employee’s activities during and after Employee’s employment are necessary to protect\nthe goodwill, Confidential Information and other legitimate interests of the Company:\n(a) During the period of Employee’s employment by the Company and, if Employee’s employment with the Company terminates for any\nreason, for a period of one (1) year thereafter (“Covenant Period”), except with the written consent of the Board, Employee shall not directly or\nindirectly, own, control, finance or participate in the ownership, control or financing of any Direct Competitor or Secondary Competitor. For the\npurposes of this Agreement, a “Direct Competitor” is defined as those entities listed on Attachment B, [as shall be modified from time-to-time by\nCompany upon written notice to Employee]. A “Secondary Competitor” is defined as a person, business or enterprise which directly or indirectly\nengages in information technology consulting and technology services, management consulting services, or outsourcing services, including, but not\nlimited to, technology strategy consulting, systems development, enterprise software package implementation and maintenance, data warehousing\nand business intelligence, application testing, application maintenance, infrastructure management, and business process outsourcing, in the\nTerritory. For purposes of this Agreement, Territory is defined as any state in the United States and any country in the world in which the Company\nhas sold or performed any services at the time of the termination of the Employee’s employment with the Company.\n(b) During the Covenant Period, the Employer further agrees that Employee shall not be employed by or provide services in any capacity\nto, a Direct Competitor in any part of the world. In addition, during the Covenant Period, Employee agrees that Employee shall not, in the Territory,\nprovide services the same as or similar to the services that Employee provided to the Company during a one (1) year period immediately preceding\nthe termination of the Employee’s employment with the Company to any Secondary Competitor.\n-13-\n(c) In further consideration for the Company’s promises herein, Employee agrees that for the period beginning with the termination of\nEmployee’s employment with the Company for any reason, and for a period of one (1) year thereafter, Employee will not directly or indirectly solicit\nor recruit any part-time or full-time employee, representative or consultant of the Company or its subsidiaries or affiliates to work for a third party\nother than the Company or its subsidiaries or affiliates or engage in any activity that would cause any employee, representative or consultant to\nviolate any agreement with the Company or its subsidiaries or affiliates. The foregoing covenant shall not apply to any person after two (2) months\nhave elapsed after the date on which such person’s employment by the Company has terminated.\n(d) The foregoing restrictions shall not be construed to prohibit Employee’s ownership of less than one percent (1%) of any class of\nsecurities of any corporation which is engaged in any of the foregoing businesses and has a class of securities registered pursuant to the Securities\nExchange Act of 1934, as amended, provided that such ownership represents a passive investment and that neither Employee nor any group of\npersons including Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees any of its\nfinancial obligations, otherwise takes any part in its business, other than exercising Employee’s rights as a stockholder, or seeks to do any of the\nforegoing.\n20. Employee Representations.\n(a) Employee represents and warrants that this Agreement and his employment by the Company does not conflict with and will not be\nconstrained by any prior business relationship or contract, that Employee does not possess trade secrets or other proprietary information arising out\nof any prior business relationship or contract that, in Employee’s best judgment would be utilized in connection with Employee’s employment with\nthe Company. Employee further agrees that he will not disclose any such trade secrets or other proprietary information to the Company or others.\n(b) Employee represents and warrants that (i) before signing this Agreement, he has read this Agreement and is entering into this\nAgreement freely and with knowledge of its contents with the intent to be bound by it and the restrictions contained herein; (ii) the restrictions\nimposed on Employee by this Agreement are fair, reasonable and proper and required for the protection of the Company’s business interests,\nparticularly its investments in Employee (e.g., Employee’s job knowledge and skills), its Confidential Information, as well as the goodwill\ndeveloped, and its business relationships, with its clients, customers and prospective clients and customers; and (iii) the restrictions imposed on\nEmployee by this Agreement, particularly, the post-termination restrictions, shall not preclude Employee from earning a living or engaging in\nEmployee’s profession or trade, or pursuing a career or a business.\n-14-\n21. Equitable Relief.\n(a) Employee acknowledges that the restrictions contained in Sections 17, 18, and 19 hereof are reasonable and necessary to protect the\nlegitimate interests of the Company and its affiliates, that the Company would not have entered into this Agreement in the absence of such\nrestrictions, and that any violation of any provision of those Sections will result in irreparable injury to the Company. Employee represents that\nEmployee’s experience and capabilities are such that the restrictions contained in Section 17, 18, and 19 hereof will not prevent Employee from\nobtaining employment or otherwise earning a living at the same general level of economic benefit as is currently the case. Employee further\nrepresents and acknowledges that (i) Employee has been advised by the Company to consult Employee’s own legal counsel in respect of this\nAgreement, and (ii) that Employee has had full opportunity, prior to execution of this Agreement, to review thoroughly this Agreement with\nEmployee’s counsel.\n(b) Employee agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity of proving\nactual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of Sections 17, 18, and 19\nhereof, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled. The period of the\ninjunction shall be measured from the date of a court order granting the injunctive relief. In the event that any of the provisions of Sections 17, 18,\nand 19 hereof should ever be adjudicated to exceed the time, geographic, service, or other limitations permitted by applicable law in any jurisdiction,\nthen such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic, service, or other limitations permitted by\napplicable law.\n(c) Employee irrevocably and unconditionally (i) agrees that any suit, action or other legal proceeding arising out of Section 17, 18, and\n19 hereof, including without limitation, any action commenced by the Company for preliminary and permanent injunctive relief or other equitable\nrelief, may be brought in the United States District Court for the District of New Jersey, or if such court does not have jurisdiction or will not accept\njurisdiction, in any court of general jurisdiction in New Jersey, (ii) consents to the non-exclusive jurisdiction of any such court in any such suit,\naction or proceeding, and (iii) waives any objection which Employee may have to the laying of venue of any such suit, action or proceeding in any\nsuch court. Employee also irrevocably and unconditionally consents to the service of any process, pleadings, notices or other papers in a manner\npermitted by the notice provisions of Section 24 hereof.\n22. Term of Agreement. This Agreement shall continue in full force and effect for the duration of Employee’s employment with the Company;\nprovided, however, that after the termination of Employee’s employment during the term of this Agreement, this Agreement shall remain in effect\nuntil all of the obligations of the Parties hereunder are satisfied or have expired.\n23. Successor Company. The Company shall require any successor or successors (whether direct or indirect, by purchase, merger,\nconsolidation or otherwise) to all or substantially all of the business and/or assets of the Company, by agreement in form and substance satisfactory\nto Employee, to acknowledge expressly that this Agreement is binding upon and enforceable against the Company in accordance with the terms\nhereof, and to become jointly and severally obligated with the Company to perform this Agreement in the same manner and to the same extent that\nthe Company would be required to perform if no such succession or successions had taken place. Failure of the Company to obtain such agreement\nprior to the effectiveness of any such succession shall be a breach of this Agreement. As used in this Agreement, the Company shall mean the\nCompany as herein before defined and any such successor or successors to its business and/or assets, jointly and severally.\n-15-\n24. Notice. All notices and other communications required or permitted hereunder or necessary or convenient in connection herewith shall be\nin writing and shall be delivered personally or mailed by registered or certified mail, return receipt requested, or by overnight express courier\nservice, as follows:\nIf to the Company, to:\nCognizant Technology Solutions Corporation\n500 Frank W. Burr Blvd.\nTeaneck, NJ 07666\nAttn: General Counsel\nIf to Employee, to:\n[insert information]\nor to such other names or addresses as the Company or Employee, as the case may be, shall designate by notice to the other Parties hereto in the\nmanner specified in this Section; provided, however, that if no such notice is given by the Company following a change in control, notice at the last\naddress of the Company or to any successor pursuant to this Section 24 shall be deemed sufficient for the purposes hereof. Any such notice shall be\ndeemed delivered and effective when received in the case of personal delivery, five days after deposit, postage prepaid, with the U.S. Postal Service\nin the case of registered or certified mail, or on the next business day in the case of overnight express courier service.\n25. Governing Law. This Agreement shall be governed by and interpreted under the laws of the State of New Jersey without giving effect to\nany conflict of laws provisions.\n26. Contents of Agreement, Amendment and Assignment.\n(a) This Agreement, including the Conduct Code, supersedes all prior agreements with respect to the subject matter hereof, sets forth the\nentire understanding between the Parties hereto with respect to the subject matter hereof and cannot be changed, modified, extended or terminated\nexcept upon written amendment executed by Employee and executed on the Company’s behalf by a duly authorized officer, except for revisions or\nadditions to Attachment B, which may be unilaterally modified by Company upon written notice to Employee; provided, however, that this\nAgreement, except as expressly set forth in Section 9, does not supersede, modify or change any existing written award agreements regarding stock\noptions, stock appreciation rights, restricted stock awards, restricted stock units, performance awards, performance units or other stock-based awards\nissued to Employee prior to the effective date of this Agreement. The provisions of this Agreement may provide for payments to Employee under\ncertain compensation or bonus plans under circumstances where such plans would not provide for\n-16-\npayment thereof. It is the specific intention of the Parties that the provisions of this Agreement shall supersede any provisions to the contrary in such\nplans, and such plans shall be deemed to have been amended to correspond with this Agreement without further action by the Company, the\nCompany’s Board of Directors or the Board unless such amendment would contravene the provisions of section 409A of the Code and result in the\nimposition of additional taxes under section 409A of the Code upon Employee.\n(b) Nothing in this Agreement shall be construed as giving Employee any right to be retained in the employ of the Company, or as\nchanging or modifying the “at will” nature of Employee’s employment status.\n(c) All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the\nrespective heirs, representatives, successors and assigns of the Parties hereto, except that the duties and responsibilities of Employee and the\nCompany hereunder shall not be assignable in whole or in part by the Company. If Employee should die after Employee’s Termination Date and\nwhile any amount payable hereunder would still be payable to Employee hereunder if Employee had continued to live, all such amounts, unless\notherwise provided herein, shall be paid in accordance with the terms of this Agreement to Employee’s devises, legates or other designees or, if there\nis no such designee, to Employee’s estate.\n27. Severability. If any provision of this Agreement is declared illegal, invalid, or otherwise unenforceable by a court of competent\njurisdiction, such provision shall be reformed, if possible, to the extent necessary to render it legal, valid, and enforceable, or otherwise deleted, and\nthe remainder of the terms of this Agreement shall not be affected except to the extent necessary to reform or delete such illegal, invalid, or\nunenforceable provision.\n28. Remedies Cumulative; No Waiver. No right conferred upon the Parties by this Agreement is intended to be exclusive of any other right or\nremedy, and each and every such right or remedy shall be cumulative and shall be in addition to any other right or remedy given hereunder or now or\nhereafter existing at law or in equity. No delay or omission by a Party in exercising any right, remedy or power hereunder or existing at law or in\nequity shall be construed as a waiver thereof.\n29. Miscellaneous. All section headings are for convenience only. This Agreement may be executed in several counterparts, each of which is\nan original. It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any of the other\ncounterparts.\n30. Section 409A.\n(a) Interpretation. This Agreement is intended to comply with the requirements of section 409A of the Code, and specifically, with the\n“short-term deferral exception” under Treas. Reg. section 1.409A-1(b)(4) and the “separation pay exception” under Treas. Reg. section 1.409A-1(b)\n(9)(iii), and shall in all respects be administered and construed in accordance with section 409A of the Code. If any payment or benefit hereunder\ncannot be provided or made at the time specified herein without incurring sanctions on Employee under section 409A of the Code,\n \n-17-\nthen such payment or benefit shall be provided in full at the earliest time thereafter when such sanctions will not be imposed. For purposes of section\n409A of the Code, all payments to be made upon a Termination of Employment under this Agreement may only be made upon a “separation from\nservice” (within the meaning of such term under section 409A of the Code), each payment made under this Agreement shall be treated as a separate\npayment, the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments, and if a\npayment is not made by the designated payment date under this Agreement, the payment shall be made by December 31 of the calendar year in\nwhich the designated date occurs. To the extent that any payment provided for hereunder would be subject to additional tax under section 409A of\nthe Code, or would cause the administration of this Agreement to fail to satisfy the requirements of section 409A of the Code, such provision shall\nbe deemed null and void to the extent permitted by applicable law, and any such amount shall be payable in accordance with 6(b) below. In no event\nshall the Employee, directly or indirectly, designate the calendar year of payment. Nothing herein shall be construed as having modified the time and\nform of payment of any amounts or payments of “deferred compensation” (as defined under Treas. Reg. section 1.409A-1(b)(1), after giving effect\nto the exemptions in Treas. Reg. sections 1.409A-1(b)(3) through (b)(12)) that were otherwise payable pursuant to the terms of any agreement\nbetween the Company and Employee in effect on or after January 1, 2005 and prior to the date of this Agreement.\n(b) Payment Delay. Notwithstanding anything herein to the contrary, if it is necessary to postpone the commencement of any payments\nor benefits otherwise payable under this Agreement as a result of Employee’s “separation from service” with the Company to prevent the imposition\nof any accelerated or additional tax under section 409A of the Code, then the Company will postpone the commencement of the payment of any such\npayments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to Employee) that are not otherwise\npaid within the “short-term deferral exception” under Treas. Reg. section 1.409A-1(b)(4) and the “separation pay exception” under Treas. Reg.\nsection 1.409A-1(b)(9)(iii), until the first payroll date that occurs after the date that is six months following Employee’s “separation of service” with\nthe Company. If any payments are postponed due to such requirements, such postponed amounts will be paid to Employee in a lump sum on the first\npayroll date that occurs after the date that is six months following Employee’s “separation of service” with the Company. If Employee dies during\nthe postponement period prior to the payment of the postponed amount, the amounts withheld on account of section 409A of the Code shall be paid\nto the personal representative of Employee’s estate within sixty (60) days after the date of the Employee’s death.\n(c) Reimbursements. All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements\nof section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during Employee’s\nlifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar\nyear may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made\non or before the last day of the taxable year following the year in which the expense is incurred, and (iv) the right to reimbursement is not subject to\nliquidation or exchange for another benefit.\n-18-\n31. Recoupment Policy. Employee acknowledges that Employee shall be subject to and hereby agrees to abide by the terms of any clawback or\nrecoupment policy that the Company has adopted or may hereafter adopt, as may be amended from time to time, with or without notice (the\n“Recoupment Policy”) to further the Company’s interests in enhancing its corporate governance practices and/or to comply with applicable law, rules\nor regulations promulgated by the Securities and Exchange Commission or the rules of the national securities exchange on which shares of the\ncommon stock of the Company are listed for trade. Employee understands that pursuant to the Recoupment Policy, the Company may seek to recoup\nall or part of any severance payments, bonus or other incentive compensation paid to certain officers and former officers, including Equity Awards,\nin the event that the Company is required to restate its financial statements. In consideration of the continued benefits to be received from the\nCompany (or a subsidiary) and the right to participate in, and receive future awards under, the Company’s cash and equity-based incentive programs,\nEmployee hereby acknowledges, understands and agrees that:\n(a) The Recoupment Policy applies to severance, cash bonuses and other incentive compensation, including Equity Awards, paid or\nawarded to Employee prior to or after the date on which the Recoupment Policy is adopted, and Employee agrees that, to the extent provided in the\nRecoupment Policy, the Recoupment Policy shall apply to equity and other award agreements outstanding as of the date of this Agreement or\nhereafter executed, and such agreements shall be deemed amended by, and to incorporate, the terms of the Recoupment Policy even if the\nRecoupment Policy is not explicitly referenced therein;\n(b) The Company shall be fully entitled to enforce the Recoupment Policy against Employee in accordance with its terms, and Employee\npromptly shall comply with any demand authorized by the Board of Directors of the Company pursuant to the terms of the Recoupment Policy for\nrepayment, return or rescission of, severance payments, a cash bonus or other incentive compensation, including Equity Awards, subject to the\nRecoupment Policy; and\n(c) Nothing in this acknowledgement shall be construed to expand the scope or terms of the Recoupment Policy, and Employee is not\nwaiving any defenses Employee may have in the event of an action for recoupment of compensation under the Recoupment Policy, other than\n(i) waiving any defense regarding the retroactive application of the Recoupment Policy to prior or existing payments or awards and (ii) waiving any\nclaim that the integration clause of any agreement excludes the application of the Recoupment Policy.\n[Signature Page Follows]\n-19-\nIN WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed this Agreement as of the date first above written.\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nAttest: By:\nIts:\nWitness [Employee]\n-20-\nATTACHMENT A\n1. The following is a complete list of all inventions and works that have been conceived, made, reduced to practice, developed, authored,\ncreated, drawn or written by me alone or jointly with others prior to my engagement by the Company.\nNone.\nSee below.\nX Due to a preexisting contract with another party, I cannot disclose certain Inventions or Works that would otherwise be included on the\nabove-described list.\nAdditional sheets are attached.\n(number)\nEMPLOYEE:\nSignature:\nName:\n(Print)\nTitle:\nDate:\n21-\n \nATTACHMENT B - List of Direct Competitors\n22\nSCHEDULE TO EXHIBIT 10.4 - FORM OF AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AND NON-DISCLOSURE,\nNON-COMPETITION, AND INVENTION ASSIGNMENT AGREEMENT\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION HAS ENTERED INTO AN AMENDED AND RESTATED EXECUTIVE\nEMPLOYMENT AND NON-DISCLOSURE, NON-COMPETITION, AND INVENTION ASSIGNMENT AGREEMENT WITH EACH OF THE\nFOLLOWING PERSONS:\nFRANCISCO D’SOUZA\nGORDON COBURN\nKAREN MCLOUGHLIN\nRAMAKRISHNAN CHANDRASEKARAN\nRAJEEV MEHTA\nMALCOLM FRANK\nSTEVEN SCHWARTZ\nIDENTICAL TO THE FORM PROVIDED HEREIN.\n-23-	EX-10.4 2 d450416dex104.htm EX-10.4\nExhibit 10.4\nAMENDED AND RESTATED EXECUTIVE EMPLOYMENT\nAND NON-DISCLOSURE, NON-COMPETITION,\nAND INVENTION ASSIGNMENT AGREEMENT\nThis Amended and Restated Executive Employment and Non-Disclosure, Non-Competition, and Invention Assignment Agreement (this\n"Agreement") is made as of the\nday of 20_ (the "Effective Date") by and between Cognizant Technology Solutions Corporation,\na\nDelaware corporation (the "Company" (where applicable, the definition of Company shall include the Company's subsidiaries and affiliates and any\nsuccessors or assigns)), and ("Employee").\nWHEREAS, Employee is currently employed by the Company as its\nand\nWHEREAS, the Company desires to continue to retain the services of Employee; and\nWHEREAS, the Parties desire to amend and restate, in its entirety, the parties' prior agreements pertaining to Employee's employment,\nand set forth the new terms and conditions of Employee's employment by the Company;\nNOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth and intending to\nbe legally bound hereby, the Company and Employee (individually a "Party" and together, the "Parties") agree as follows:\n1. Definitions.\n(a) "Annual Base Salary." shall mean the rate of annual base salary paid or payable to Employee by the Company (including authorized\ndeferrals and salary reduction amounts) immediately prior to Employee's Termination Date.\n(b) "Board" shall mean the Board of Directors of Cognizant Technology Solutions Corporation.\n(c) "Cause" shall mean (i) willful malfeasance or willful misconduct by the Employee in connection with his employment,\n(ii) continuing failure to perform such duties as are reasonably requested by Employee's supervisor, (iii) failure by the Employee to observe material\npolicies of the Company applicable to the Employee, (iv) the commission by the Employee of (x) any felony or (y) any misdemeanor involving\nmoral turpitude, (v) Employee engaging in any fraudulent act or act of embezzlement, or (vi) any material breach of this Agreement.\n(d) "Code" means the Internal Revenue Code of 1986, as amended and the regulations promulgated thereunder.\n(e) "Disability." means Employee's total and permanent disability as determined in accordance with the Company's long-term disability\npolicy, whether or not Employee is covered by such policy.\n-1-\n(f) "Good Reason" means, the occurrence of one or more of the following events or actions:\n(i) A material diminution by the Company of Employee's authority, duties or responsibilities;\n(ii) A material diminution in Employee's overall compensation package, which is not otherwise caused by an overall policy\nby\nthe Company to reduce senior employee compensation throughout the Company;\n(iii) The failure of the Company to obtain from its successors the express assumption of this Agreement; or\n(iv) A change, without Employee's consent, in the principal place of work of the Employee to a location that is more than 50\nmiles from his primary work location as of the date of this Agreement, but only if such change occurs on or after a Change in Control.\n(g) "Notice of Termination" means a written notice which (i) indicates the specific termination provision in this Agreement relied upon,\nand (ii) briefly summarizes the facts and circumstances deemed to provide a basis for termination of Employee's employment under the provision so\nindicated.\n(h) "Termination Date" shall mean the last day of Employee's employment with the Company.\n(i) "Termination of Employment" shall mean the termination of Employee's active employment relationship with the Company.\n2. Employment. Company hereby continues to employ Employee, and Employee hereby continues to accept such employment, upon the terms\nand conditions set forth herein.\n3. Duties.\n(a) Position. Employee continues to be employed as [insert position title] and shall have the duties and responsibilities assigned by\n[insert title] both upon initial hire and as may be reasonably assigned from time to time. Employee shall perform faithfully and diligently all duties\nassigned to Employee. Company reserves the right to modify Employee's position and duties at any time in its sole and absolute discretion, provided\nthat the duties assigned are consistent with the position of a senior executive and that Employee continues to report to [insert title].\n(b) Best Efforts/Full-time. To the maximum extent permitted by law, Employee agrees to devote Employee's best efforts and entire\nbusiness time and attention to the Company's Business during the term of Employee's employment with the Company. Employee agrees that, during\nthe term of Employee's employment, except as otherwise approved in writing by the Company, which approval the Company may in its absolute\ndiscretion withhold, Employee will not, either directly or indirectly, or for himself/herself or through, on behalf of, or in conjunction with any\nperson, persons or legal entity, operate, engage in, assist, or be employed by any business activity to or for the benefit of any person or entity other\nthan the Company; provided that the\n-2-\nforegoing is not intended to prevent an Employee from pursuing hobbies or participating in any other activity which is not to the detriment of\nCompany. Employee further acknowledges and agrees that Employee has access to the Company's Core Values and Standards of Business Conduct\n(the "Conduct Code") located at www.cognizant.com, and Employee has read and understands the Conduct Code and shall abide by all the terms\nof\nsaid Conduct Code, as may be amended from time to time, and said Conduct Code shall be incorporated into this Agreement. Employee will abide\nby all policies and decisions made by Company, as well as all applicable federal, state and local laws, regulations or ordinances. Employee will act in\nthe best interest of Company at all times.\n(c) Work Location. Employee's principal place of work shall be located in [insert city, state], or such other location as the parties may\nagree upon from time to time.\n4. At-Will Employment. Employee's employment with the Company will be "at will," meaning it is for no specified term and may be\nterminated by Employee or the Company at any time, with or without Cause or advance notice, subject to the provisions of Section 9 below.\n5. Compensation.\n(a) Annual Base Salary.. As compensation for Employee's performance of Employee's duties hereunder, Company shall pay to Employee\na base salary as most recently determined by the Compensation Committee of the Board and last communicated to the Employee, as may be\nmodified by the Compensation Committee of the Board, payable in accordance with the normal payroll practices of Company, less required\ndeductions for state and federal withholding tax, social security and all other employment taxes and payroll deductions. In the event Employee's\nemployment under this Agreement is terminated by either party, for any reason, Employee will earn the Annual Base Salary prorated to the date of\ntermination.\n(b) Incentive Compensation. Employee will be eligible to earn incentive compensation as determined by the Compensation Committee\nof\nthe Board in accordance with the bonus plan(s) provided to Employee by Company, in accordance with the terms and conditions of such plan(s).\n(c) Stock Options and Other Equity. Awards. Except as set forth herein, this Agreement does not modify or change the existing\nagreements regarding stock options, stock appreciation rights, restricted stock awards and restricted stock units (each, an "Equity Award" and\ncollectively, "Equity Awards") previously issued to Employee.\n6. Customary. Fringe Benefits. Employee will be eligible for all customary and usual fringe benefits generally available to Employees of\nCompany subject to the terms and conditions of Company's benefit plan documents. Company reserves the right to change or eliminate the fringe\nbenefits on a prospective basis, at any time, effective upon notice to Employee.\n7. Business Expenses. Employee will be reimbursed for all reasonable, out-of-pocket business expenses incurred in the performance of\nEmployee's duties on behalf of Company. To obtain reimbursement, expenses must be submitted promptly with appropriate supporting\ndocumentation in accordance with Company's policies.\n-3-\n8. Company. Access. Employee agrees and consents that, during the term of Employee's employment with the Company and thereafter, the\nCompany may review, audit, intercept, access and disclose all messages created, received or sent over the electronic mail and internet access system\nprovided by the Company with or without notice to Employee and that such review, audit, interception, access, or disclosure may occur during or\nafter working hours. Employee further consents and agrees that the Company may, at any time, access and review the contents of all computers,\ncomputer disks, other data storage equipment and devices, files, desks, drawers, closets, cabinets and work stations which are either on the\nCompany's premises or which are owned or provided by the Company.\n9. Involuntary Termination of Employment.\n(a) Prior to a Change in Control. In the event that Employee's employment with the Company is involuntarily terminated by the\nCompany for any reason other than Cause, death or Disability or in the event Employee resigns his employment for Good Reason pursuant to\nSection 10 and the Company's right to cure (as set forth in Section 10) has expired (an "Involuntary Termination"), and in either such case\nEmployee's employment termination becomes effective before any Change in Control (as defined in Section 9(e) below) has occurred following the\ndate of this Agreement, Employee shall be entitled to the payments and benefits described below, provided that Employee executes and does not\nrevoke the Release (as defined in Section 11) and the Release first becomes effective:\n(i) Employee shall receive continued payment of the Employee's Annual Base Salary, paid in regular installments in accordance\nwith the Company's normal payroll practices, over a period of twenty-two (22) months, commencing on or as soon as practicable after the date the\nRelease becomes effective and within thirty-five days following Employee's Termination Date.\n(ii) The Company shall, for a period of twelve (12) months following the date of Employee's Termination of Employment, pay\nthe Employee each month an amount equal to the monthly COBRA medical insurance cost under the Company's group medical plan for Employee\nand, where applicable, Employee's spouse and eligible dependents; provided that Employee, and, where applicable, Employee's spouse and\ndependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments specified\nunder this Section 9(a)(ii) shall cease if the Company's statutory obligation to provide such COBRA healthcare continuation coverage terminates for\nany reason before the expiration of the 12-month period.\n(iii) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the Company\nand would have vested had Employee remained employed by the Company during the twelve (12) month period following Employee's Termination\nDate shall automatically become fully vested and exercisable, as applicable, as of Employee's Termination Date. Such Equity Awards shall continue\nto be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n-4-\n(iv) With respect to any outstanding Equity Award that was subject to vesting in whole or in part based on achievement\nof\nperformance objective(s), to the extent that the applicable performance period has expired on or before Employee's Termination Date, the\nperformance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future dates,\nthe portion of such Equity Award that would have vested had Employee remained employed by the Company during the twelve (12) month period\nfollowing Employee's Termination Date shall become fully vested and exercisable as of Employee's Termination Date. Such Equity Award shall\ncontinue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee's Termination\nDate and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the Company. The payment\nof amounts described in this Section 9(a)(v) are not conditioned upon the Release becoming effective unless the applicable benefit plan or program\nprovides otherwise.\n(b) Coincident with or within One Year After a Change in Control. In the event that Employee suffers an Involuntary Termination that becomes\neffective coincident with, or within the twelve (12) month period immediately after, the first occurrence of a Change in Control following the date of\nthis Agreement, Employee shall be entitled to the payments and benefits described below in this Section 9(b) in lieu of, and not in addition to, the\npayments and benefits described in Section 9(a); provided that Employee executes and does not revoke the Release (as defined in Section 11) and the\nRelease first becomes effective:\n(i) Employee shall receive a cash payment equal to one times Employee's Annual Base Salary, such amount to be paid in regular\ninstallments in accordance with the Company's normal payroll practices over a period of twelve (12) months, commencing on or as soon as\npracticable after the date the Release becomes effective and within thirty-five days following Employee's Termination Date.\n(ii) Employee shall receive a cash payment equal to the amount of the target annual bonus that the Employee would otherwise\nhave been eligible to receive for the performance year in which the Employee's Termination Date occurs, assuming for this purpose that the\nEmployee and Company achieved 100% of applicable performance targets and objectives. Payment shall be made in a lump sum payment on or as\nsoon as practicable after the date the Release becomes effective and within thirty-five days following Employee's Termination Date.\n(iii) The Company shall, for a period of twelve (12) months following the date of Employee's Termination of Employment, pay\nEmployee each month an amount equal to the monthly COBRA medical insurance cost under the Company's group medical plan for Employee and,\nwhere\napplicable, Employee's spouse and eligible dependents; provided that Employee, and, where applicable, Employee's spouse and dependents,\nare eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments specified under this\nSection 9(b)(iii) shall cease if the Company's statutory obligation to provide such COBRA healthcare continuation coverage terminates for\nany\nreason before the expiration of the 12-month period.\n-5-\n(iv) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the Company\nshall automatically become fully vested and exercisable, as applicable, as of Employee's Termination Date. Such vested Equity Awards shall\ncontinue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) Outstanding Equity Awards the vesting of which is conditioned, in whole or in part, upon the achievement of performance\nobjectives shall become vested and exercisable as follows:\n(A) To the extent that the applicable performance period has expired on or before Employee's Termination Date, the performance\nobjective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future dates, such\nEquity Award shall become fully vested and exercisable as of Employee's Termination Date.\n(B) To the extent that the applicable performance period has not expired on or before Employee's Termination Date, the Company shall\npro-rate the performance objective(s) for the portion of the performance period that has transpired up to the date of Closing of the Change in\nControl, make a good faith determination of the level of achievement of such pro-rated performance objective as of such Closing Date, and\ntreat as fully vested and exercisable a proportionate amount of such Equity Award that corresponds with the level of achievement of the pro-\nrated performance objective, disregarding any future service conditions that otherwise would apply to such Equity Award.\n(vi) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee's Termination\nDate and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the Company. The payment\nof amounts described in this Section 9(b)(vi) are not conditioned upon the Release becoming effective unless the applicable benefit plan or program\nprovides otherwise.\n(c) Termination Due to Death, Disability, or For Cause. If Employee is terminated due to death, Disability, or for Cause, Employee shall\nreceive any amounts earned, accrued and owing but not yet paid to Employee as of Employee's Termination Date and any benefits accrued and\nearned in accordance with the terms of any applicable benefit plans and programs of the Company; all other Company obligations to Employee will\nbe extinguished as of the Termination Date.\n(d) Notice of Termination. Any termination on account of this Section 9 shall be communicated by a Notice of Termination to the other\nParties hereto given in accordance with Section 24 hereof.\n(e) Definition of Change in Control. For purposes of this Agreement, the term "Change in Control" shall have the meaning set forth in\nthe Company's 2009 Incentive Compensation Plan, as amended from time to time or any successor plan in effect as of Employee's Termination\nDate.\n-6-\n10. Resignation for Good Reason. If Employee provides notice of his intent to terminate for Good Reason, then, subject to the expiration of the\ncure period and Employee's actual termination as described below, such resignation shall be deemed an Involuntary Termination for purposes of\nthis\nAgreement and Employee shall be entitled to the payments and benefits described in Section 9 subject to the requirements set forth in this\nAgreement, including Section 11. Employee must provide written notice to the Company of his intent to terminate his employment for Good Reason\nwithin thirty (30) days of the action or omission giving rise to such claim of Good Reason. Thereafter, the Company shall have a period of thirty\n(30) days within which it may correct the event or action that constitutes the grounds for Good Reason as set forth in Employee's notice\nof\ntermination. If the Company does not correct the event or action prior to the expiration of the foregoing cure period, Employee must terminate his\nemployment for Good Reason within thirty (30) days after the expiration of the cure period, in order for the termination to be considered a Good\nReason termination under this Agreement.\n11. Release. Notwithstanding the foregoing, no payments or benefits shall be provided under Sections 9 and 10, as applicable (except for those\npayments that are owed pursuant to applicable law and/or are specifically not conditioned upon Employee's execution of a release), unless Employee\nexecutes, and does not revoke, the Company's then standard written general release (the "Release") of any and all claims against the Company and\nall related parties with respect to all matters arising out of Employee's employment by the Company (other than any entitlements under the terms of\nthis Agreement or under any other plans or programs of the Company in which Employee participated and under which Employee has accrued and\nearned a benefit) or the termination thereof. The Company will provide Employee with the form of release agreement within seven days after\nEmployee's separation from service. To be entitled to the severance or other benefits, Employee must execute and deliver to the Company the release\nagreement on or before the last day of the minimum required waiver consideration period provided under the Age Discrimination in Employment\nAct or other applicable law or such later date specified in the release agreement. If Employee timely delivers an executed release agreement to the\nCompany, and Employee does not revoke the release agreement during the minimum revocation period required under applicable law, if any, the\nseverance or other benefits shall be paid or commence being paid, as specified in this Agreement, subject to any delay required pursuant to\nSection 30(b) of this Agreement. If, however, the period during which Employee has discretion to execute or revoke the release agreement straddles\ntwo calendar years, the cash severance or other benefits shall be paid or commence being paid, as applicable, as soon as practicable\nin\nthe\nsecond\nof\nthe two calendar years, regardless of within which calendar year Employee actually delivers the executed release agreement to the Company, subject\nto the release agreement first becoming effective. Consistent with section 409A of the Code, Employee may not, directly or indirectly, designate\nthe\ncalendar year of payment. Nothing in this Section 11 shall be construed to alter the terms of this Agreement that condition Employee's entitlement\nto\nany severance or other benefits upon Employee's compliance with the restrictive covenants and any other terms and conditions specified in this\nAgreement.\n12. Other Payments. Any payments and benefits that become due under Sections 9 and 10 hereof shall be in addition to (but not in duplication\nof) and not in lieu of any payments and benefits due to Employee under any other plan, policy or program of the Company, except that Employee\nshall not be entitled to any payments and benefits under the Company's then current severance pay policies.\n-7-\n13. No Mitigation. Employee shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by seeking\nother employment or otherwise, nor shall the amount of any payment or benefit provided for herein be reduced by any compensation earned by other\nemployment or otherwise; provided, however, that any obligation of the Company to provide COBRA healthcare continuation coverage under\nSections 4 and 5 hereof shall cease upon Employee becoming covered under a healthcare plan of another employer.\n14.\nNon-Exclusivity of Rights. Except as provided in Section 12, nothing in this Agreement shall prevent or limit Employee's\ncontinuing\nor\nfuture participation in or rights under any benefit, bonus, incentive or other plan or program provided by the Company or any of its subsidiaries or\naffiliates and for which Employee may qualify.\n15. No Set-Off. Other than with respect to the Recoupment Policy (as hereinafter defined), the Company's obligation to make the payments\nprovided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any circumstances, including, without\nlimitation, any set-off, counterclaim, recoupment, defense or other right which the Company may have against Employee or others.\n16. Taxes.\n(a) All payments under this Agreement shall be made subject to applicable tax withholding, and the Company shall withhold from any\npayments under this Agreement all federal, state and local taxes as the Company is required to withhold pursuant to any law or governmental rule or\nregulation. Employee shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect\nto\nany\npayment\nreceived under this Agreement, including, without limitation, any excise tax imposed by section 4999 of the Code.\n(b) If the payments and benefits received or to be received by Employee in connection with a Change in Control or the termination of\nEmployee's employment (whether payable pursuant to the terms of this Agreement ("Contract Payments") or any other plan, arrangement or\nagreement with the Company or any affiliate (collectively with the Contract Payments, the "Total Payments"), would constitute a "parachute\npayment" under Section 280G of the Code, then the Total Payments shall be reduced, in the manner set forth below, by the minimum amount\nnecessary to result in no portion of the Total Payments being non-deductible to the Company pursuant to Section 280G of the Code or subject to the\nexcise tax imposed under Section 4999 of the Code.\n(c) All determinations required to be made under this Section 16, including whether a reduction in Total Payments is required, the\namount of any such reduction and the assumptions to be utilized in arriving at such determination, shall be made by an accounting or law firm of\nrecognized standing reasonably selected by the Company (the "Firm"), which may be, but will not be required to be, the Company's independent\nauditors. The Firm shall submit its determination and detailed supporting calculations to both Employee and the Company within fifteen (15) days\nafter receipt of a notice from either the Company or Employee that Employee may receive payments which may be "parachute payments." If the\nFirm determines that a reduction is required by this Section 16, the Contract Payments consisting of cash severance shall be reduced to the extent\nnecessary so that no portion of the Total Payments shall be subject to the excise tax imposed\n-8-\nby section 4999 of the Code, and the Company shall pay such reduced amount to Employee in accordance with the terms of this Agreement. If\nadditional Contract Payments must be reduced pursuant to this Section 16 after the cash severance has been reduced to zero, the Contract Payments\nallocable to performance-vested Equity Awards shall next be reduced, followed by the Contract Payments allocable to time-vested Equity Awards,\nto\nthe extent necessary to satisfy the requirements of this Section 16. If the Firm determines that none of the Total Payments, after taking into account\nany reduction required by this Section 16, constitutes a "parachute payment" within the meaning of section 280G of the Code, it will, at the same\ntime as it makes such determination, furnish Employee and the Company an opinion that Employee has substantial authority not to report any excise\ntax under section 4999 of the Code on Employee's federal income tax return.\n(d) Employee and the Company shall each provide the Firm access to and copies of any books, records, and documents in the possession\nof Employee or the Company, as the case may be, reasonably requested by the Firm, and otherwise cooperate with the Firm in connection with the\npreparation and issuance of the determinations and calculations contemplated by this Section 16. The fees and expenses of the Firm for its services in\nconnection with the determinations and calculations contemplated by this Section 16 shall be borne by the Company.\n17. Confidential Information. Employee agrees that Employee's services to the Company have been and will continue to be of a special,\nunique and extraordinary character, and that Employee's position places Employee in a position of confidence and trust with the Company's\ncustomers and employees. Employee also recognizes that Employee's position with the Company will give Employee substantial access to\nConfidential Information (as defined below), the disclosure of which to competitors of the Company would cause the Company to suffer substantial\nand irreparable damage. Employee recognizes, therefore, that it is in the Company's legitimate business interest to restrict Employee's use of\nConfidential Information for any purposes other than the discharge of Employee's employment duties at the Company, and to limit any potential\nappropriation of Confidential Information by Employee for the benefit of the Company's competitors and to the detriment of the Company.\nAccordingly, Employee agrees as follows:\n(a) Employee will not at any time, whether during or after the termination of Employee's employment, reveal to any person or entity any\nof the trade secrets or confidential information of the Company or of any third party which the Company is under an obligation to keep confidential\n(including but not limited to trade secrets or confidential information respecting inventions, products, designs, methods, know-how, techniques,\nsystems, processes, software programs, works of authorship, customer lists, projects, plans and proposals) ("Confidential Information"), except\nas\nmay be required in the ordinary course of performing Employee's duties as an employee of the Company, and Employee shall keep secret all matters\nentrusted to Employee and shall not use or attempt to use any such information in any manner which may injure or cause loss or may be calculated\nto injure or cause loss whether directly or indirectly to the Company. By way of example and not limitation, Confidential Information also includes\nany and all information, whether or not meeting the legal definition of a trade secret, concerning the Company's actual, planned or contemplated:\n(i) marketing plans, business plans, strategies, forecasts, budgets, projections and costs; (ii) personnel information; (iii) customer, vendor and\nsupplier lists; (iv) customer, vendor and supplier needs, transaction histories, contacts, volumes, characteristics,\n-9-\nagreements and prices; (v) promotions, operations, sales, marketing, and research and development; (vi) business operations, internal structures and\nfinancial affairs; (vii) software and operating systems and procedures; (viii) pricing structure of the Company's services and products; (ix) proposed\nservices and products; (x) contracts with other parties; (xi) performance characteristics of the Company's products; and (xii) Inventions and Works as\ndefined in Section 18. Confidential Information also includes any and all information of Company's clients and customers which is deemed\nconfidential by such clients and customers (whether past, present or potential), including, but not limited to: marketing tools, inventions, processes,\ncontact lists, materials, software program code, logic diagrams, flow charts, procedural diagrams, computer programming techniques and know how,\nmaps and any documentation related thereto.\n(b) The above restrictions shall not apply to: (i) information that at the time of disclosure is in the public domain through no fault of\nEmployee; (ii) information received from a third party outside of the Company that was publicly disclosed without a breach of any confidentiality\nobligation; or (iii) information approved for release by written authorization of the Company. In addition, in the event that Employee is requested or\nrequired (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to\ndisclose any of the Confidential Information, it is agreed that Employee will provide the Company with prompt notice of such request(s) so that the\nCompany may seek an appropriate protective order or other appropriate remedy and/or waive compliance with the confidentiality provisions of this\nAgreement. In the event that such protective order or other remedy is not obtained, or the Company grants a waiver hereunder, Employee may\nfurnish that portion (and only that portion) of the Confidential Information which Employee is legally compelled to disclose and will exercise its\nreasonable best efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information so furnished.\n(c) Further, Employee agrees that during Employee's employment Employee shall not take, use or permit to be used any notes,\nmemoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials of any nature\nrelating to any matter within the scope of the business of the Company or concerning any of its dealings or affairs otherwise than for the benefit\nof\nthe Company. Employee further agrees that Employee shall not, after the termination of Employee's employment, use or permit to be used any such\nnotes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials, it being\nagreed that all of the foregoing shall be and remain the sole and exclusive property of the Company and that, immediately upon the termination\nof\nEmployee's employment, Employee shall deliver all of the foregoing plus any other Confidential Information, and all copies thereof, to the\nCompany, at its main office.\n(d) Employee agrees that upon the termination of Employee's employment with the Company, Employee will not take or retain without\nwritten authorization any documents, files or other property of the Company, and Employee will return promptly to the Company any such\ndocuments, files or property in Employee's possession or custody, including any copies thereof maintained in any medium or format. Employee\nrecognizes that all documents, files and property which Employee has received and will receive from the Company, including but not limited to\nscientific research, customer lists, handbooks, memoranda, product specifications, and other materials (with the exception of documents relating to\nbenefits to which Employee might be entitled following the termination of Employee's employment with the Company), are for the\n-10-\nexclusive use of the Company and employees who are discharging their responsibilities on behalf of the Company, and that Employee has no claim\nor\nright to the continued use, possession or custody of such documents, files or property following the termination of Employee's employment with\nthe Company.\n18. Intellectual Property..\n(a) Employee agrees to disclose fully, promptly, and in writing to the Company any and all Inventions and Works (each as defined\nbelow) which are conceived, made, reduced to practice, developed, authored, created, drawn or written at any time while Employee is employed by\nthe Company and for a period of six (6) months thereafter. Employee will generate and provide to the Company adequate and current written records\nof all Inventions and Works in the form of notes, sketches, drawings, reports, flow charts, procedural diagrams, logic diagrams, software program\ncode, procedural diagrams, computer programming techniques or other documents relating thereto or in such other form as will be requested by the\nCompany, which records and any copies thereof will be and will remain the exclusive property of the Company and will be available to the\nCompany at all times, all available information relating thereto (with all necessary plans and models) to the Company.\n(b) The Company and Employee agree that "Inventions," is defined in this Agreement to include any and all new or useful ideas,\ndevelopments, discoveries, improvements, designs, formulas, modifications, trademarks, service marks, trade secrets, and other intellectual property,\nwhether patentable or not (including without limitation any technology, computer programs, software, software program code, logic diagrams,\nflowcharts, procedural diagrams, computer programming techniques, test, concept, idea, process, method, composition of matter, formula or\ntechnique), and all know-how related thereto, which Employee conceives, makes, reduces to practice, or develops, solely or jointly with others\n(i) which relate to the actual or contemplated business, work or activities of the Company, (ii) which result from or are suggested by any work which\nEmployee\nhas\ndone\nor\nmay\ndo\non\nbehalf\nof\nthe\nCompany,\nor\nby\nany\ninformation\nthat\nEmployee\nmay\nreceive\nby\nvirtue\nof\nEmployee's\nemployment\nby\nthe Company, or (iii) which are developed, tested, improved or investigated either in part or entirely on time for which Employee was paid by the\nCompany, or with the use of premises, equipment or property provided, owned, leased, or contracted for by or on behalf of the Company.\n(c) The Company and Employee agree that "Works" is defined in this Agreement to include any and all materials for which copyright\nprotection may be obtained, including without limitation literary works (including books, pamphlets, articles and other writings), mask works,\nartistic works (including designs, graphs, drawings, blueprints and other graphic works), computer programs, software program code, logic\ndiagrams, flow charts, procedural diagrams, computer programming, compilations, recordings, photographs, motion pictures and other audio-visual\nworks which Employee authors, conceives, creates, draws, makes, or writes, solely or jointly with others (i) which relate to the actual or\ncontemplated business, work or activities of the Company, (ii) which result from or are suggested by any work which Employee has done or may\ndo\non behalf of the Company, or by any information that Employee may receive by virtue of Employee's employment by the Company, or (iii) which\nare developed, tested, improved or investigated either in part or entirely on time for which Employee was paid by the Company, or with the use\nof\npremises, equipment or property provided, owned, leased, or contracted for, by, or on behalf of the Company.\n-11-\n(d)\nEmployee agrees to assign, transfer and convey, and hereby assigns, transfers and conveys to the Company all of\nthe\nrights,\ntitles\nand\ninterests in and to any and all such Inventions and Works that Employee has or may acquire in such Inventions or Works which are conceived, made,\nreduced to practice, developed, authored, created, drawn or written at any time while Employee is employed by the Company and for a period of six\n(6) months thereafter. Employee agrees that the Company will be the sole owner of all patents, copyrights, trademarks and other intellectual property\nrights in connection therewith, and agrees to take all such actions as may be requested by the Company during Employee's employment with the\nCompany and at any time thereafter, with respect to any such Inventions or Works to confirm or evidence such assignment, transfer, conveyance or\nownership, and to assist in the Company's maintenance, enforcement, license, assignment, transfer, or conveyance of rights in respect of the\nInventions or Works. Employee understands that if he is employed by the Company in California, his obligation to assign rights in inventions does\nnot apply to an invention that qualifies fully under the provisions of California Labor Code Section 2870.\n(e) By way of example and not limitation, at any time and from time to time, upon the request of the Company, Employee agrees to\nexecute, acknowledge, swear to, seal and deliver to the Company, any and all lawful instruments, documents and papers, give evidence and do any\nand all other lawful acts that, in the opinion of the Company, are or may be necessary or desirable to document such assignment, transfer and\nconveyance or to enable the Company to file and prosecute applications for and to acquire, maintain and enforce any and all patents, trademarks,\ncopyrights and other property rights under United States, local, state or foreign law with respect to any such Inventions or Works or to obtain any\nextension, validation, reissue, continuance or renewal of any such patent, trademark, copyright, or other intellectual property right. By way of further\nexample and not limitation, Employee agrees to meet with the Company representatives or attorneys for the purpose of initiating, maintaining or\ndefending litigation, administrative or other proceedings; and to participate fully in litigation, administrative or other proceedings as requested by the\nCompany. In the event that the Company may be unable, for any reason whatsoever, after reasonable effort, to secure Employee's signature on any\npatent, copyright, trademark or other intellectual property application or other papers, Employee hereby irrevocably designates and appoints the\nCompany and its duly authorized officers and agents, as Employee's agent and attorney-in-fact to act for and on behalf of Employee to execute,\nacknowledge, swear to, seal and deliver to the Company and to file any such application or applications or other papers, and to do all other lawfully\npermitted acts to further the provisions of Section 18 of this Agreement.\n(f) The Company agrees to reimburse Employee for reasonable expenses incurred by Employee in complying with the provisions\nof\nSections 18(d) and 18(e) of this Agreement The Company and Employee agree that Employee is not entitled to additional compensation beyond that\npaid to Employee for the period of time that he is employed by the Company, which compensation, along with the Company's understandings set\nforth in this Agreement, is expressly acknowledged to be adequate consideration for all of the Employee promises and obligations set forth in this\nAgreement.\n-12-\n(g) Employee expressly acknowledges and states that all Works which are made by Employee (solely or jointly with others) are being\ncreated at the instance of the Company and are "works made for hire," as that term is defined in the Copyright Act of 1976, 17 USC 8 101. In the\nevent that such laws are inapplicable or in the event that any such Works, or any part thereof, are determined by a court of competent jurisdiction not\nto be a work made for hire, this Agreement will operate as an irrevocable and unconditiona assignment by Employee to The Company of all\nEmployee's right, title and interest (including, without limitation, all rights in and to the copyrights throughout the world, including the right to\nprepare derivative works and the rights to all renewals and extensions) in the Works in perpetuity.\n(h) Employee represents that Attachment A to this Agreement describes all inventions and works, whether patentable or not, which have\nbeen conceived, made, reduced to practice, developed, authored, created, drawn or written prior to Employee's employment by the Company;\nprovided, however, that, Employee has not disclosed in Attachment A information that is a trade secret belonging to another, or which is the subject\nof a contract preventing Employee's disclosure of the information to the Company.\n19. Non-Competition and Non-Solicitation. In further consideration of the compensation to be paid to Employee hereunder, Employee\nacknowledges that during the course of Employee's employment with the Company, Company will provide Employee Confidential Information,\nwhich Employee promises to not disclose. Further, Employee will become and/or remain familiar with the Company's trade secrets and with other\nConfidential Information concerning the Company and that Employee's services shall be of special, unique and extraordinary value to the Company,\nand therefore, the Employee agrees that some restrictions on Employee's activities during and after Employee's employment are necessary to protect\nthe goodwill, Confidential Information and other legitimate interests of the Company:\n(a) During the period of Employee's employment by the Company and, if Employee's employment with the Company terminates for any\nreason,\nfor\na\nperiod\nof\none\n(1)\nyear\nthereafter\n("Covenant\nPeriod"),\nexcept\nwith\nthe\nwritten\nconsent\nof\nthe\nBoard,\nEmployee\nshall\nnot\ndirectly\nor\nindirectly, own, control, finance or participate in the ownership, control or financing of any Direct Competitor or Secondary Competitor. For the\npurposes of this Agreement, a "Direct Competitor" is defined as those entities listed on Attachment B, [as shall be modified from time-to-time by\nCompany upon written notice to Employee]. A "Secondary Competitor" is defined as a person, business or enterprise which directly or indirectly\nengages in information technology consulting and technology services, management consulting services, or outsourcing services, including, but not\nlimited to, technology strategy consulting, systems development, enterprise software package implementation and maintenance, data warehousing\nand business intelligence, application testing, application maintenance, infrastructure management, and business process outsourcing, in the\nTerritory. For purposes of this Agreement, Territory is defined as any state in the United States and any country in the world in which the Company\nhas sold or performed any services at the time of the termination of the Employee's employment with the Company.\n(b) During the Covenant Period, the Employer further agrees that Employee shall not be employed by or provide services in any capacity\nto, a Direct Competitor in any part of the world. In addition, during the Covenant Period, Employee agrees that Employee shall not, in the Territory,\nprovide services the same as or similar to the services that Employee provided to the Company during a one (1) year period immediately preceding\nthe termination of the Employee's employment with the Company to any Secondary Competitor.\n-13-\n(c) In further consideration for the Company's promises herein, Employee agrees that for the period beginning with the termination of\nEmployee's employment with the Company for any reason, and for a period of one (1) year thereafter, Employee will not directly or indirectly solicit\nor recruit any part-time or full-time employee, representative or consultant of the Company or its subsidiaries or affiliates to work for a third party\nviolate any agreement with the Company or its subsidiaries or affiliates. The foregoing covenant shall not apply to any person after two (2) months to\nother than the Company or its subsidiaries or affiliates or engage in any activity that would cause any employee, representative or consultant\nhave elapsed after the date on which such person's employment by the Company has terminated.\n(d)\nThe foregoing restrictions shall not be construed to prohibit Employee's ownership of less than one percent (1%) of any class of\nsecurities of any corporation which is engaged in any of the foregoing businesses and has a class of securities registered pursuant to the Securities\nExchange Act of 1934, as amended, provided that such ownership represents a passive investment and that neither Employee nor any group of\npersons including Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees any of its\nfinancial obligations, otherwise takes any part in its business, other than exercising Employee's rights as a stockholder, or seeks to do any of the\nforegoing.\n20. Employee Representations.\n(a) Employee represents and warrants that this Agreement and his employment by the Company does not conflict with and will not be\nconstrained by any prior business relationship or contract, that Employee does not possess trade secrets or other proprietary information arising out\nof any prior business relationship or contract that, in Employee's best judgment would be utilized in connection with Employee's employment with\nthe Company. Employee further agrees that he will not disclose any such trade secrets or other proprietary information to the Company or others.\n(b) Employee represents and warrants that (i) before signing this Agreement, he has read this Agreement and is entering into this\nAgreement freely and with knowledge of its contents with the intent to be bound by it and the restrictions contained herein; (ii) the restrictions\nimposed on Employee by this Agreement are fair, reasonable and proper and required for the protection of the Company's business interests,\nparticularly its investments in Employee (e.g., Employee's job knowledge and skills), its Confidential Information, as well as the goodwill\ndeveloped, and its business relationships, with its clients, customers and prospective clients and customers; and (iii) the restrictions imposed on\nEmployee by this Agreement, particularly, the post-termination restrictions, shall not preclude Employee from earning a living or engaging in\nEmployee's profession or trade, or pursuing a career or a business.\n-14-\n21. Equitable Relief.\n(a) Employee acknowledges that the restrictions contained in Sections 17, 18, and 19 hereof are reasonable and necessary to protect the\nlegitimate interests of the Company and its affiliates, that the Company would not have entered into this Agreement in the absence of such\nrestrictions, and that any violation of any provision of those Sections will result in irreparable injury to the Company. Employee represents that\nEmployee's\nexperience and capabilities are such that the restrictions contained in Section 17, 18, and 19 hereof will not prevent Employee\nfrom\nobtaining employment or otherwise earning a living at the same general level of economic benefit as is currently the case. Employee further\nrepresents and acknowledges that (i) Employee has been advised by the Company to consult Employee's own legal counsel in respect of this\nAgreement, and (ii) that Employee has had full opportunity, prior to execution of this Agreement, to review thoroughly this Agreement with\nEmployee's counsel.\n(b) Employee agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity of proving\nactual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of Sections 17, 18, and 19\nhereof, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled. The period of the\ninjunction shall be measured from the date of a court order granting the injunctive relief. In the event that any of the provisions of Sections 17, 18,\nand 19 hereof should ever be adjudicated to exceed the time, geographic, service, or other limitations permitted by applicable law in any jurisdiction\nthen such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic, service, or other limitations permitted by\napplicable law.\n(c) Employee irrevocably and unconditionally (i) agrees that any suit, action or other legal proceeding arising out of Section 17, 18, and\n19\nhereof,\nincluding\nwithout\nlimitation,\nany\naction\ncommenced\nby\nthe\nCompany\nfor\npreliminary\nand\npermanent\ninjunctive\nrelief\nor\nother\nequitable\nrelief, may be brought in the United States District Court for the District of New Jersey, or if such court does not have jurisdiction or will not accept\njurisdiction, in any court of general jurisdiction in New Jersey, (ii) consents to the non-exclusive jurisdiction of any such court in any such suit,\naction or proceeding, and (iii) waives any objection which Employee may have to the laying of venue of any such suit, action or proceeding in any\nsuch court. Employee also irrevocably and unconditionally consents to the service of any process, pleadings, notices or other papers in a manner\npermitted by the notice provisions of Section 24 hereof.\n22 Term of Agreement. This Agreement shall continue in full force and effect for the duration of Employee's employment with the Company;\nprovided, however, that after the termination of Employee's employment during the term of this Agreement, this Agreement shall remain in effect\nuntil all of the obligations of the Parties hereunder are satisfied or have expired.\n23. Successor Company.. The Company shall require any successor or successors (whether direct or indirect, by purchase, merger,\nconsolidation or otherwise) to all or substantially all of the business and/or assets of the Company, by agreement in form and substance satisfactory\nto Employee, to acknowledge expressly that this Agreement is binding upon and enforceable against the Company in accordance with the terms\nhereof, and to become jointly and severally obligated with the Company to perform this Agreement in the same manner and to the same extent that\nthe\nCompany would be required to perform if no such succession or successions had taken place. Failure of the Company to obtain such agreement\nprior to the effectiveness of any such succession shall be a breach of this Agreement As used in this Agreement, the Company shall mean the\nCompany as herein before defined and any such successor or successors to its business and/or assets, jointly and severally.\n-15-\n24. Notice. All notices and other communications required or permitted hereunder or necessary or convenient in connection herewith shall be\nin writing and shall be delivered personally or mailed by registered or certified mail, return receipt requested, or by overnight express courier\nservice, as follows:\nIf to the Company, to:\nCognizant Technology Solutions Corporation\n500 Frank W. Burr Blvd.\nTeaneck, NJ 07666\nAttn: General Counsel\nIf to Employee, to:\n[insert information]\nor to such other names or addresses as the Company or Employee, as the case may be, shall designate by notice to the other Parties hereto in the\nmanner specified in this Section; provided, however, that if no such notice is given by the Company following a change in control, notice at the\nlast\naddress of the Company or to any successor pursuant to this Section 24 shall be deemed sufficient for the purposes hereof. Any such notice shall be\ndeemed delivered and effective when received in the case of personal delivery, five days after deposit, postage prepaid, with the U.S. Postal Service\nin the case of registered or certified mail, or on the next business day in the case of overnight express courier service.\n25. Governing Law. This Agreement shall be governed by and interpreted under the laws of the State of New Jersey without giving effect to\nany conflict of laws provisions.\n26. Contents of Agreement, Amendment and Assignment.\n(a) This Agreement, including the Conduct Code, supersedes all prior agreements with respect to the subject matter hereof, sets forth the\nentire understanding between the Parties hereto with respect to the subject matter hereof and cannot be changed, modified, extended or terminated\nexcept upon written amendment executed by Employee and executed on the Company's behalf by a duly authorized officer, except for revisions or\nadditions to Attachment B, which may be unilaterally modified by Company upon written notice to Employee; provided, however, that this\nAgreement, except as expressly set forth in Section 9, does not supersede, modify or change any existing written award agreements regarding stock\noptions, stock appreciation rights, restricted stock awards, restricted stock units, performance awards, performance units or other stock-based awards\nissued to Employee prior to the effective date of this Agreement. The provisions of this Agreement may provide for payments to Employee under\ncertain compensation or bonus plans under circumstances where such plans would not provide for\n-16-\npayment thereof. It is the specific intention of the Parties that the provisions of this Agreement shall supersede any provisions to the contrary in such\nplans, and such plans shall be deemed to have been amended to correspond with this Agreement without further action by the Company, the\nCompany's Board of Directors or the Board unless such amendment would contravene the provisions of section 409A of the Code and result in the\nimposition of additional taxes under section 409A of the Code upon Employee.\n(b) Nothing in this Agreement shall be construed as giving Employee any right to be retained in the employ of the Company, or as\nchanging or modifying the "at will" nature of Employee's employment status.\n(c) All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the\nrespective heirs, representatives, successors and assigns of the Parties hereto, except that the duties and responsibilities of Employee and the\nCompany hereunder shall not be assignable in whole or in part by the Company. If Employee should die after Employee's Termination Date and\nwhile any amount payable hereunder would still be payable to Employee hereunder if Employee had continued to live, all such amounts, unless\notherwise provided herein, shall be paid in accordance with the terms of this Agreement to Employee's devises, legates or other designees or, if there\nis no such designee, to Employee's estate.\n27. Severability. If any provision of this Agreement is declared illegal, invalid, or otherwise unenforceable by a court of competent\njurisdiction, such provision shall be reformed, if possible, to the extent necessary to render it legal, valid, and enforceable, or otherwise deleted, and\nthe remainder of the terms of this Agreement shall not be affected except to the extent necessary to reform or delete such illegal, invalid, or\nunenforceable provision.\n28. Remedies Cumulative; No Waiver. No right conferred upon the Parties by this Agreement is intended to be exclusive of any other right or\nremedy, and each and every such right or remedy shall be cumulative and shall be in addition to any other right or remedy given hereunder or now or\nhereafter existing at law or in equity. No delay or omission by a Party in exercising any right, remedy or power hereunder or existing at law or\nin\nequity shall be construed as a waiver thereof.\n29. Miscellaneous. All section headings are for convenience only. This Agreement may be executed in several counterparts, each of which is\nan original. It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any of the other\ncounterparts.\n30. Section 409A.\n(a) Interpretation. This Agreement is intended to comply with the requirements of section 409A of the Code, and specifically, with the\n"short-term deferral exception" under Treas. Reg section 1.409A-1(b)(4 and the "separation pay exception" under Treas. Reg. section 1.409A-1(b)\n(9)(iii), and shall in all respects be administered and construed in accordance with section 409A of the Code. If any payment or benefit hereunder\ncannot be provided or made at the time specified herein without incurring sanctions on Employee under section 409A of the Code,\n-17-\nthen such payment or benefit shall be provided in full at the earliest time thereafter when such sanctions will not be imposed. For purposes of section\n409A of the Code, all payments to be made upon a Termination of Employment under this Agreement may only be made upon a "separation from\nservice" (within the meaning of such term under section 409A of the Code), each payment made under this Agreement shall be treated as a separate\npayment, the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments, and if\na\npayment is not made by the designated payment date under this Agreement, the payment shall be made by December 31 of the calendar year in\nwhich the designated date occurs. To the extent that any payment provided for hereunder would be subject to additional tax under section 409A\nof\nthe Code, or would cause the administration of this Agreement to fail to satisfy the requirements of section 409A of the Code, such provision shall\nbe deemed null and void to the extent permitted by applicable law, and any such amount shall be payable in accordance with 6(b) below. In no event\nshall the Employee, directly or indirectly, designate the calendar year of payment. Nothing herein shall be construed as having modified the time and\nform of payment of any amounts or payments of "deferred compensation" (as defined under Treas. Reg. section 1.409A-1(b)(1) after giving effect\nto\nthe exemptions in Treas. Reg. sections 1.409A-1(b)(3) through (b)(12)) that were otherwise payable pursuant to the terms of any agreement\nbetween the Company and Employee in effect on or after January 1, 2005 and prior to the date of this Agreement.\n(b)\nPayment Delay.. Notwithstanding anything herein to the contrary, if it is necessary to postpone the commencement of any payments\nor benefits otherwise payable under this Agreement as a result of Employee's "separation from service" with the Company to prevent the imposition\nof any accelerated or additional tax under section 409A of the Code, then the Company will postpone the commencement of the payment of any such\npayments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to Employee) that are not otherwise\npaid within the "short-term deferral exception" under Treas. Reg. section 1.409A-1(b)(4) and the "separation pay exception" under Treas. Reg.\nsection 1.409A-1(b)(9)(iii), until the first payroll date that occurs after the date that is six months following Employee's "separation of service" with\nthe Company. If any payments are postponed due to such requirements, such postponed amounts will be paid to Employee in a lump sum on the first\npayroll date that occurs after the date that is six months following Employee's "separation of service" with the Company. If Employee dies during\nthe postponement period prior to the payment of the postponed amount, the amounts withheld on account of section 409A of the Code shall be paid\nto the personal representative of Employee's estate within sixty (60) days after the date of the Employee's death.\n(c) Reimbursements. All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements\nof section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during Employee's\nlifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar\nyear may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made\non or before the last day of the taxable year following the year in which the expense is incurred, and (iv) the right to reimbursement is not subject\nto\nliquidation or exchange for another benefit.\n-18-\n31. Recoupment Policy.. Employee acknowledges that Employee shall be subject to and hereby agrees to abide by the terms of any clawback or\nrecoupment policy that the Company has adopted or may hereafter adopt, as may be amended from time to time, with or without notice (the\n"Recoupment Policy") to further the Company's interests in enhancing its corporate governance practices and/or to comply with applicable law, rules\nor regulations promulgated by the Securities and Exchange Commission or the rules of the national securities exchange on which shares of the\ncommon stock of the Company are listed for trade. Employee understands that pursuant to the Recoupment Policy, the Company may seek to recoup\nall or part of any severance payments, bonus or other incentive compensation paid to certain officers and former officers, including Equity Awards,\nin the event that the Company is required to restate its financial statements. In consideration of the continued benefits to be received from the\nCompany (or a subsidiary) and the right to participate in, and receive future awards under, the Company's cash and equity-based incentive programs,\nEmployee hereby acknowledges, understands and agrees that:\n(a) The Recoupment Policy applies to severance, cash bonuses and other incentive compensation, including Equity Awards, paid or\nawarded to Employee prior to or after the date on which the Recoupment Policy is adopted, and Employee agrees that, to the extent provided in the\nRecoupment Policy, the Recoupment Policy shall apply to equity and other award agreements outstanding as of the date of this Agreement or\nhereafter executed, and such agreements shall be deemed amended by, and to incorporate, the terms of the Recoupment Policy even if the\nRecoupment Policy is not explicitly referenced therein;\n(b) The Company shall be fully entitled to enforce the Recoupment Policy against Employee in accordance with its terms, and Employee\npromptly shall comply with any demand authorized by the Board of Directors of the Company pursuant to the terms of the Recoupment Policy for\nrepayment, return or rescission of, severance payments, a cash bonus or other incentive compensation, including Equity Awards, subject to the\nRecoupment Policy; and\n(c) Nothing in this acknowledgement shall be construed to expand the scope or terms of the Recoupment Policy, and Employee is not\nwaiving any defenses Employee may have in the event of an action for recoupment of compensation under the Recoupment Policy, other than\n(i) waiving any defense regarding the retroactive application of the Recoupment Policy to prior or existing payments or awards and (ii) waiving any\nclaim that the integration clause of any agreement excludes the application of the Recoupment Policy.\n[Signature Page Follows]\n-19-\nIN WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed this Agreement as of the date first above written.\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nAttest:\nBy:\nIts:\nWitness\n[Employee]\n-20-\nATTACHMENT A\n1.\nThe following is a complete list of all inventions and works that have been conceived, made, reduced to practice, developed, authored,\ncreated, drawn or written by me alone or jointly with others prior to my engagement by the Company.\nNone.\nSee below.\nX\nDue to a preexisting contract with another party, I cannot disclose certain Inventions or Works that would otherwise be included on the\nabove-described list.\nAdditional sheets are attached.\n(number)\nEMPLOYEE:\nSignature:\nName:\n(Print)\nTitle:\nDate:\n-21-\nATTACHMENT B - List of Direct Competitors\n-22-\nSCHEDULE TO EXHIBIT 10.4 - FORM OF AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AND NON-DISCLOSURE,\nNON-COMPETITION, AND INVENTION ASSIGNMENT AGREEMENT\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION HAS ENTERED INTO AN AMENDED AND RESTATED EXECUTIVE\nEMPLOYMENT AND NON-DISCLOSURE, NON-COMPETITION, AND INVENTION ASSIGNMENT AGREEMENT WITH EACH OF THE\nFOLLOWING PERSONS:\nFRANCISCO D'SOUZA\nGORDON COBURN\nKAREN MCLOUGHLIN\nRAMAKRISHNAN CHANDRASEKARAN\nRAJEEV MEHTA\nMALCOLM FRANK\nSTEVEN SCHWARTZ\nIDENTICAL TO THE FORM PROVIDED HEREIN.\n-23-	EX-10.4 2 d450416dex104.htm EX-10.4\nExhibit 10.4\nAMENDED AND RESTATED EXECUTIVE EMPLOYMENT\nAND NON-DISCLOSURE, NON-COMPETITION,\nAND INVENTION ASSIGNMENT AGREEMENT\nThis Amended and Restated Executive Employment and Non-Disclosure, Non-Competition, and Invention Assignment Agreement (this\n“Agreement”) is made as of the\nday of\n, 20 (the “Effective Date”) by and between Cognizant Technology Solutions Corporation, a\nDelaware corporation (the “Company” (where applicable, the definition of Company shall include the Company’s subsidiaries and affiliates and any\nsuccessors or assigns)), and\n(“Employee”).\nWHEREAS, Employee is currently employed by the Company as its\n; and\nWHEREAS, the Company desires to continue to retain the services of Employee; and\nWHEREAS, the Parties desire to amend and restate, in its entirety, the parties’ prior agreements pertaining to Employee’s employment,\nand set forth the new terms and conditions of Employee’s employment by the Company;\nNOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth and intending to\nbe legally bound hereby, the Company and Employee (individually a “Party” and together, the “Parties”) agree as follows:\n1. Definitions.\n(a) “Annual Base Salary” shall mean the rate of annual base salary paid or payable to Employee by the Company (including authorized\ndeferrals and salary reduction amounts) immediately prior to Employee’s Termination Date.\n(b) “Board” shall mean the Board of Directors of Cognizant Technology Solutions Corporation.\n(c) “Cause” shall mean (i) willful malfeasance or willful misconduct by the Employee in connection with his employment,\n(ii) continuing failure to perform such duties as are reasonably requested by Employee’s supervisor, (iii) failure by the Employee to observe material\npolicies of the Company applicable to the Employee, (iv) the commission by the Employee of (x) any felony or (y) any misdemeanor involving\nmoral turpitude, (v) Employee engaging in any fraudulent act or act of embezzlement, or (vi) any material breach of this Agreement.\n(d) “Code” means the Internal Revenue Code of 1986, as amended and the regulations promulgated thereunder.\n(e) “Disability” means Employee’s total and permanent disability as determined in accordance with the Company’s long-term disability\npolicy, whether or not Employee is covered by such policy.\n-1-\n(f) “Good Reason” means, the occurrence of one or more of the following events or actions:\n(i) A material diminution by the Company of Employee’s authority, duties or responsibilities;\n(ii) A material diminution in Employee’s overall compensation package, which is not otherwise caused by an overall policy by\nthe Company to reduce senior employee compensation throughout the Company;\n(iii) The failure of the Company to obtain from its successors the express assumption of this Agreement; or\n(iv) A change, without Employee’s consent, in the principal place of work of the Employee to a location that is more than 50\nmiles from his primary work location as of the date of this Agreement, but only if such change occurs on or after a Change in Control.\n(g) “Notice of Termination” means a written notice which (i) indicates the specific termination provision in this Agreement relied upon,\nand (ii) briefly summarizes the facts and circumstances deemed to provide a basis for termination of Employee’s employment under the provision so\nindicated.\n(h) “Termination Date” shall mean the last day of Employee’s employment with the Company.\n(i) “Termination of Employment” shall mean the termination of Employee’s active employment relationship with the Company.\n2. Employment. Company hereby continues to employ Employee, and Employee hereby continues to accept such employment, upon the terms\nand conditions set forth herein.\n3. Duties.\n(a) Position. Employee continues to be employed as [insert position title] and shall have the duties and responsibilities assigned by\n[insert title] both upon initial hire and as may be reasonably assigned from time to time. Employee shall perform faithfully and diligently all duties\nassigned to Employee. Company reserves the right to modify Employee’s position and duties at any time in its sole and absolute discretion, provided\nthat the duties assigned are consistent with the position of a senior executive and that Employee continues to report to [insert title].\n(b) Best Efforts/Full-time. To the maximum extent permitted by law, Employee agrees to devote Employee’s best efforts and entire\nbusiness time and attention to the Company’s Business during the term of Employee’s employment with the Company. Employee agrees that, during\nthe term of Employee’s employment, except as otherwise approved in writing by the Company, which approval the Company may in its absolute\ndiscretion withhold, Employee will not, either directly or indirectly, or for himself/herself or through, on behalf of, or in conjunction with any\nperson, persons or legal entity, operate, engage in, assist, or be employed by any business activity to or for the benefit of any person or entity other\nthan the Company; provided that the\n-2-\nforegoing is not intended to prevent an Employee from pursuing hobbies or participating in any other activity which is not to the detriment of\nCompany. Employee further acknowledges and agrees that Employee has access to the Company’s Core Values and Standards of Business Conduct\n(the “Conduct Code”) located at www.cognizant.com, and Employee has read and understands the Conduct Code and shall abide by all the terms of\nsaid Conduct Code, as may be amended from time to time, and said Conduct Code shall be incorporated into this Agreement. Employee will abide\nby all policies and decisions made by Company, as well as all applicable federal, state and local laws, regulations or ordinances. Employee will act in\nthe best interest of Company at all times.\n(c) Work Location. Employee’s principal place of work shall be located in [insert city, state], or such other location as the parties may\nagree upon from time to time.\n4. At-Will Employment. Employee’s employment with the Company will be “at will,” meaning it is for no specified term and may be\nterminated by Employee or the Company at any time, with or without Cause or advance notice, subject to the provisions of Section 9 below.\n5. Compensation.\n(a) Annual Base Salary. As compensation for Employee’s performance of Employee’s duties hereunder, Company shall pay to Employee\na base salary as most recently determined by the Compensation Committee of the Board and last communicated to the Employee, as may be\nmodified by the Compensation Committee of the Board, payable in accordance with the normal payroll practices of Company, less required\ndeductions for state and federal withholding tax, social security and all other employment taxes and payroll deductions. In the event Employee’s\nemployment under this Agreement is terminated by either party, for any reason, Employee will earn the Annual Base Salary prorated to the date of\ntermination.\n(b) Incentive Compensation. Employee will be eligible to earn incentive compensation as determined by the Compensation Committee\nof the Board in accordance with the bonus plan(s) provided to Employee by Company, in accordance with the terms and conditions of such plan(s).\n(c) Stock Options and Other Equity Awards. Except as set forth herein, this Agreement does not modify or change the existing\nagreements regarding stock options, stock appreciation rights, restricted stock awards and restricted stock units (each, an “Equity Award” and\ncollectively, “Equity Awards”) previously issued to Employee.\n6. Customary Fringe Benefits. Employee will be eligible for all customary and usual fringe benefits generally available to Employees of\nCompany subject to the terms and conditions of Company’s benefit plan documents. Company reserves the right to change or eliminate the fringe\nbenefits on a prospective basis, at any time, effective upon notice to Employee.\n7. Business Expenses. Employee will be reimbursed for all reasonable, out-of-pocket business expenses incurred in the performance of\nEmployee’s duties on behalf of Company. To obtain reimbursement, expenses must be submitted promptly with appropriate supporting\ndocumentation in accordance with Company’s policies.\n-3-\n8. Company Access. Employee agrees and consents that, during the term of Employee’s employment with the Company and thereafter, the\nCompany may review, audit, intercept, access and disclose all messages created, received or sent over the electronic mail and internet access system\nprovided by the Company with or without notice to Employee and that such review, audit, interception, access, or disclosure may occur during or\nafter working hours. Employee further consents and agrees that the Company may, at any time, access and review the contents of all computers,\ncomputer disks, other data storage equipment and devices, files, desks, drawers, closets, cabinets and work stations which are either on the\nCompany’s premises or which are owned or provided by the Company.\n9. Involuntary Termination of Employment.\n(a) Prior to a Change in Control. In the event that Employee’s employment with the Company is involuntarily terminated by the\nCompany for any reason other than Cause, death or Disability or in the event Employee resigns his employment for Good Reason pursuant to\nSection 10 and the Company’s right to cure (as set forth in Section 10) has expired (an “Involuntary Termination”), and in either such case\nEmployee’s employment termination becomes effective before any Change in Control (as defined in Section 9(e) below) has occurred following the\ndate of this Agreement, Employee shall be entitled to the payments and benefits described below, provided that Employee executes and does not\nrevoke the Release (as defined in Section 11) and the Release first becomes effective:\n(i) Employee shall receive continued payment of the Employee’s Annual Base Salary, paid in regular installments in accordance\nwith the Company’s normal payroll practices, over a period of twenty-two (22) months, commencing on or as soon as practicable after the date the\nRelease becomes effective and within thirty-five days following Employee’s Termination Date.\n(ii) The Company shall, for a period of twelve (12) months following the date of Employee’s Termination of Employment, pay\nthe Employee each month an amount equal to the monthly COBRA medical insurance cost under the Company’s group medical plan for Employee\nand, where applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable, Employee’s spouse and\ndependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments specified\nunder this Section 9(a)(ii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage terminates for\nany reason before the expiration of the 12-month period.\n(iii) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the Company\nand would have vested had Employee remained employed by the Company during the twelve (12) month period following Employee’s Termination\nDate shall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such Equity Awards shall continue\nto be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n-4-\n(iv) With respect to any outstanding Equity Award that was subject to vesting in whole or in part based on achievement of\nperformance objective(s), to the extent that the applicable performance period has expired on or before Employee’s Termination Date, the\nperformance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future dates,\nthe portion of such Equity Award that would have vested had Employee remained employed by the Company during the twelve (12) month period\nfollowing Employee’s Termination Date shall become fully vested and exercisable as of Employee’s Termination Date. Such Equity Award shall\ncontinue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s Termination\nDate and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the Company. The payment\nof amounts described in this Section 9(a)(v) are not conditioned upon the Release becoming effective unless the applicable benefit plan or program\nprovides otherwise.\n(b) Coincident with or within One Year After a Change in Control. In the event that Employee suffers an Involuntary Termination that becomes\neffective coincident with, or within the twelve (12) month period immediately after, the first occurrence of a Change in Control following the date of\nthis Agreement, Employee shall be entitled to the payments and benefits described below in this Section 9(b) in lieu of, and not in addition to, the\npayments and benefits described in Section 9(a); provided that Employee executes and does not revoke the Release (as defined in Section 11) and the\nRelease first becomes effective:\n(i) Employee shall receive a cash payment equal to one times Employee’s Annual Base Salary, such amount to be paid in regular\ninstallments in accordance with the Company’s normal payroll practices over a period of twelve (12) months, commencing on or as soon as\npracticable after the date the Release becomes effective and within thirty-five days following Employee’s Termination Date.\n(ii) Employee shall receive a cash payment equal to the amount of the target annual bonus that the Employee would otherwise\nhave been eligible to receive for the performance year in which the Employee’s Termination Date occurs, assuming for this purpose that the\nEmployee and Company achieved 100% of applicable performance targets and objectives. Payment shall be made in a lump sum payment on or as\nsoon as practicable after the date the Release becomes effective and within thirty-five days following Employee’s Termination Date.\n(iii) The Company shall, for a period of twelve (12) months following the date of Employee’s Termination of Employment, pay\nEmployee each month an amount equal to the monthly COBRA medical insurance cost under the Company’s group medical plan for Employee and,\nwhere applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable, Employee’s spouse and dependents,\nare eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments specified under this\nSection 9(b)(iii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage terminates for any\nreason before the expiration of the 12-month period.\n-5-\n(iv) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the Company\nshall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such vested Equity Awards shall\ncontinue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) Outstanding Equity Awards the vesting of which is conditioned, in whole or in part, upon the achievement of performance\nobjectives shall become vested and exercisable as follows:\n(A) To the extent that the applicable performance period has expired on or before Employee’s Termination Date, the performance\nobjective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future dates, such\nEquity Award shall become fully vested and exercisable as of Employee’s Termination Date.\n(B) To the extent that the applicable performance period has not expired on or before Employee’s Termination Date, the Company shall\npro-rate the performance objective(s) for the portion of the performance period that has transpired up to the date of Closing of the Change in\nControl, make a good faith determination of the level of achievement of such pro-rated performance objective as of such Closing Date, and\ntreat as fully vested and exercisable a proportionate amount of such Equity Award that corresponds with the level of achievement of the pro-\nrated performance objective, disregarding any future service conditions that otherwise would apply to such Equity Award.\n(vi) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s Termination\nDate and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the Company. The payment\nof amounts described in this Section 9(b)(vi) are not conditioned upon the Release becoming effective unless the applicable benefit plan or program\nprovides otherwise.\n(c) Termination Due to Death, Disability, or For Cause. If Employee is terminated due to death, Disability, or for Cause, Employee shall\nreceive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s Termination Date and any benefits accrued and\nearned in accordance with the terms of any applicable benefit plans and programs of the Company; all other Company obligations to Employee will\nbe extinguished as of the Termination Date.\n(d) Notice of Termination. Any termination on account of this Section 9 shall be communicated by a Notice of Termination to the other\nParties hereto given in accordance with Section 24 hereof.\n(e) Definition of Change in Control. For purposes of this Agreement, the term “Change in Control” shall have the meaning set forth in\nthe Company’s 2009 Incentive Compensation Plan, as amended from time to time or any successor plan in effect as of Employee’s Termination\nDate.\n-6-\n10. Resignation for Good Reason. If Employee provides notice of his intent to terminate for Good Reason, then, subject to the expiration of the\ncure period and Employee’s actual termination as described below, such resignation shall be deemed an Involuntary Termination for purposes of this\nAgreement and Employee shall be entitled to the payments and benefits described in Section 9 subject to the requirements set forth in this\nAgreement, including Section 11. Employee must provide written notice to the Company of his intent to terminate his employment for Good Reason\nwithin thirty (30) days of the action or omission giving rise to such claim of Good Reason. Thereafter, the Company shall have a period of thirty\n(30) days within which it may correct the event or action that constitutes the grounds for Good Reason as set forth in Employee’s notice of\ntermination. If the Company does not correct the event or action prior to the expiration of the foregoing cure period, Employee must terminate his\nemployment for Good Reason within thirty (30) days after the expiration of the cure period, in order for the termination to be considered a Good\nReason termination under this Agreement.\n11. Release. Notwithstanding the foregoing, no payments or benefits shall be provided under Sections 9 and 10, as applicable (except for those\npayments that are owed pursuant to applicable law and/or are specifically not conditioned upon Employee’s execution of a release), unless Employee\nexecutes, and does not revoke, the Company’s then standard written general release (the “Release”) of any and all claims against the Company and\nall related parties with respect to all matters arising out of Employee’s employment by the Company (other than any entitlements under the terms of\nthis Agreement or under any other plans or programs of the Company in which Employee participated and under which Employee has accrued and\nearned a benefit) or the termination thereof. The Company will provide Employee with the form of release agreement within seven days after\nEmployee’s separation from service. To be entitled to the severance or other benefits, Employee must execute and deliver to the Company the release\nagreement on or before the last day of the minimum required waiver consideration period provided under the Age Discrimination in Employment\nAct or other applicable law or such later date specified in the release agreement. If Employee timely delivers an executed release agreement to the\nCompany, and Employee does not revoke the release agreement during the minimum revocation period required under applicable law, if any, the\nseverance or other benefits shall be paid or commence being paid, as specified in this Agreement, subject to any delay required pursuant to\nSection 30(b) of this Agreement. If, however, the period during which Employee has discretion to execute or revoke the release agreement straddles\ntwo calendar years, the cash severance or other benefits shall be paid or commence being paid, as applicable, as soon as practicable in the second of\nthe two calendar years, regardless of within which calendar year Employee actually delivers the executed release agreement to the Company, subject\nto the release agreement first becoming effective. Consistent with section 409A of the Code, Employee may not, directly or indirectly, designate the\ncalendar year of payment. Nothing in this Section 11 shall be construed to alter the terms of this Agreement that condition Employee’s entitlement to\nany severance or other benefits upon Employee’s compliance with the restrictive covenants and any other terms and conditions specified in this\nAgreement.\n12. Other Payments. Any payments and benefits that become due under Sections 9 and 10 hereof shall be in addition to (but not in duplication\nof) and not in lieu of any payments and benefits due to Employee under any other plan, policy or program of the Company, except that Employee\nshall not be entitled to any payments and benefits under the Company’s then current severance pay policies.\n-7-\n13. No Mitigation. Employee shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by seeking\nother employment or otherwise, nor shall the amount of any payment or benefit provided for herein be reduced by any compensation earned by other\nemployment or otherwise; provided, however, that any obligation of the Company to provide COBRA healthcare continuation coverage under\nSections 4 and 5 hereof shall cease upon Employee becoming covered under a healthcare plan of another employer.\n14. Non-Exclusivity of Rights. Except as provided in Section 12, nothing in this Agreement shall prevent or limit Employee’s continuing or\nfuture participation in or rights under any benefit, bonus, incentive or other plan or program provided by the Company or any of its subsidiaries or\naffiliates and for which Employee may qualify.\n15. No Set-Off. Other than with respect to the Recoupment Policy (as hereinafter defined), the Company’s obligation to make the payments\nprovided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any circumstances, including, without\nlimitation, any set-off, counterclaim, recoupment, defense or other right which the Company may have against Employee or others.\n16. Taxes.\n(a) All payments under this Agreement shall be made subject to applicable tax withholding, and the Company shall withhold from any\npayments under this Agreement all federal, state and local taxes as the Company is required to withhold pursuant to any law or governmental rule or\nregulation. Employee shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due with respect to any payment\nreceived under this Agreement, including, without limitation, any excise tax imposed by section 4999 of the Code.\n(b) If the payments and benefits received or to be received by Employee in connection with a Change in Control or the termination of\nEmployee’s employment (whether payable pursuant to the terms of this Agreement (“Contract Payments”) or any other plan, arrangement or\nagreement with the Company or any affiliate (collectively with the Contract Payments, the “Total Payments”), would constitute a “parachute\npayment” under Section 280G of the Code, then the Total Payments shall be reduced, in the manner set forth below, by the minimum amount\nnecessary to result in no portion of the Total Payments being non-deductible to the Company pursuant to Section 280G of the Code or subject to the\nexcise tax imposed under Section 4999 of the Code.\n(c) All determinations required to be made under this Section 16, including whether a reduction in Total Payments is required, the\namount of any such reduction and the assumptions to be utilized in arriving at such determination, shall be made by an accounting or law firm of\nrecognized standing reasonably selected by the Company (the “Firm”), which may be, but will not be required to be, the Company’s independent\nauditors. The Firm shall submit its determination and detailed supporting calculations to both Employee and the Company within fifteen (15) days\nafter receipt of a notice from either the Company or Employee that Employee may receive payments which may be “parachute payments.” If the\nFirm determines that a reduction is required by this Section 16, the Contract Payments consisting of cash severance shall be reduced to the extent\nnecessary so that no portion of the Total Payments shall be subject to the excise tax imposed\n-8-\nby section 4999 of the Code, and the Company shall pay such reduced amount to Employee in accordance with the terms of this Agreement. If\nadditional Contract Payments must be reduced pursuant to this Section 16 after the cash severance has been reduced to zero, the Contract Payments\nallocable to performance-vested Equity Awards shall next be reduced, followed by the Contract Payments allocable to time-vested Equity Awards, to\nthe extent necessary to satisfy the requirements of this Section 16. If the Firm determines that none of the Total Payments, after taking into account\nany reduction required by this Section 16, constitutes a “parachute payment” within the meaning of section 280G of the Code, it will, at the same\ntime as it makes such determination, furnish Employee and the Company an opinion that Employee has substantial authority not to report any excise\ntax under section 4999 of the Code on Employee’s federal income tax return.\n(d) Employee and the Company shall each provide the Firm access to and copies of any books, records, and documents in the possession\nof Employee or the Company, as the case may be, reasonably requested by the Firm, and otherwise cooperate with the Firm in connection with the\npreparation and issuance of the determinations and calculations contemplated by this Section 16. The fees and expenses of the Firm for its services in\nconnection with the determinations and calculations contemplated by this Section 16 shall be borne by the Company.\n17. Confidential Information. Employee agrees that Employee’s services to the Company have been and will continue to be of a special,\nunique and extraordinary character, and that Employee’s position places Employee in a position of confidence and trust with the Company’s\ncustomers and employees. Employee also recognizes that Employee’s position with the Company will give Employee substantial access to\nConfidential Information (as defined below), the disclosure of which to competitors of the Company would cause the Company to suffer substantial\nand irreparable damage. Employee recognizes, therefore, that it is in the Company’s legitimate business interest to restrict Employee’s use of\nConfidential Information for any purposes other than the discharge of Employee’s employment duties at the Company, and to limit any potential\nappropriation of Confidential Information by Employee for the benefit of the Company’s competitors and to the detriment of the Company.\nAccordingly, Employee agrees as follows:\n(a) Employee will not at any time, whether during or after the termination of Employee’s employment, reveal to any person or entity any\nof the trade secrets or confidential information of the Company or of any third party which the Company is under an obligation to keep confidential\n(including but not limited to trade secrets or confidential information respecting inventions, products, designs, methods, know-how, techniques,\nsystems, processes, software programs, works of authorship, customer lists, projects, plans and proposals) (“Confidential Information”), except as\nmay be required in the ordinary course of performing Employee’s duties as an employee of the Company, and Employee shall keep secret all matters\nentrusted to Employee and shall not use or attempt to use any such information in any manner which may injure or cause loss or may be calculated\nto injure or cause loss whether directly or indirectly to the Company. By way of example and not limitation, Confidential Information also includes\nany and all information, whether or not meeting the legal definition of a trade secret, concerning the Company’s actual, planned or contemplated:\n(i) marketing plans, business plans, strategies, forecasts, budgets, projections and costs; (ii) personnel information; (iii) customer, vendor and\nsupplier lists; (iv) customer, vendor and supplier needs, transaction histories, contacts, volumes, characteristics,\n-9-\nagreements and prices; (v) promotions, operations, sales, marketing, and research and development; (vi) business operations, internal structures and\nfinancial affairs; (vii) software and operating systems and procedures; (viii) pricing structure of the Company’s services and products; (ix) proposed\nservices and products; (x) contracts with other parties; (xi) performance characteristics of the Company’s products; and (xii) Inventions and Works as\ndefined in Section 18. Confidential Information also includes any and all information of Company’s clients and customers which is deemed\nconfidential by such clients and customers (whether past, present or potential), including, but not limited to: marketing tools, inventions, processes,\ncontact lists, materials, software program code, logic diagrams, flow charts, procedural diagrams, computer programming techniques and know how,\nmaps and any documentation related thereto.\n(b) The above restrictions shall not apply to: (i) information that at the time of disclosure is in the public domain through no fault of\nEmployee; (ii) information received from a third party outside of the Company that was publicly disclosed without a breach of any confidentiality\nobligation; or (iii) information approved for release by written authorization of the Company. In addition, in the event that Employee is requested or\nrequired (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to\ndisclose any of the Confidential Information, it is agreed that Employee will provide the Company with prompt notice of such request(s) so that the\nCompany may seek an appropriate protective order or other appropriate remedy and/or waive compliance with the confidentiality provisions of this\nAgreement. In the event that such protective order or other remedy is not obtained, or the Company grants a waiver hereunder, Employee may\nfurnish that portion (and only that portion) of the Confidential Information which Employee is legally compelled to disclose and will exercise its\nreasonable best efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information so furnished.\n(c) Further, Employee agrees that during Employee’s employment Employee shall not take, use or permit to be used any notes,\nmemoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials of any nature\nrelating to any matter within the scope of the business of the Company or concerning any of its dealings or affairs otherwise than for the benefit of\nthe Company. Employee further agrees that Employee shall not, after the termination of Employee’s employment, use or permit to be used any such\nnotes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials, it being\nagreed that all of the foregoing shall be and remain the sole and exclusive property of the Company and that, immediately upon the termination of\nEmployee’s employment, Employee shall deliver all of the foregoing plus any other Confidential Information, and all copies thereof, to the\nCompany, at its main office.\n(d) Employee agrees that upon the termination of Employee’s employment with the Company, Employee will not take or retain without\nwritten authorization any documents, files or other property of the Company, and Employee will return promptly to the Company any such\ndocuments, files or property in Employee’s possession or custody, including any copies thereof maintained in any medium or format. Employee\nrecognizes that all documents, files and property which Employee has received and will receive from the Company, including but not limited to\nscientific research, customer lists, handbooks, memoranda, product specifications, and other materials (with the exception of documents relating to\nbenefits to which Employee might be entitled following the termination of Employee’s employment with the Company), are for the\n- 10-\nexclusive use of the Company and employees who are discharging their responsibilities on behalf of the Company, and that Employee has no claim\nor right to the continued use, possession or custody of such documents, files or property following the termination of Employee’s employment with\nthe Company.\n18. Intellectual Property.\n(a) Employee agrees to disclose fully, promptly, and in writing to the Company any and all Inventions and Works (each as defined\nbelow) which are conceived, made, reduced to practice, developed, authored, created, drawn or written at any time while Employee is employed by\nthe Company and for a period of six (6) months thereafter. Employee will generate and provide to the Company adequate and current written records\nof all Inventions and Works in the form of notes, sketches, drawings, reports, flow charts, procedural diagrams, logic diagrams, software program\ncode, procedural diagrams, computer programming techniques or other documents relating thereto or in such other form as will be requested by the\nCompany, which records and any copies thereof will be and will remain the exclusive property of the Company and will be available to the\nCompany at all times, all available information relating thereto (with all necessary plans and models) to the Company.\n(b) The Company and Employee agree that “Inventions,” is defined in this Agreement to include any and all new or useful ideas,\ndevelopments, discoveries, improvements, designs, formulas, modifications, trademarks, service marks, trade secrets, and other intellectual property,\nwhether patentable or not (including without limitation any technology, computer programs, software, software program code, logic diagrams,\nflowcharts, procedural diagrams, computer programming techniques, test, concept, idea, process, method, composition of matter, formula or\ntechnique), and all know-how related thereto, which Employee conceives, makes, reduces to practice, or develops, solely or jointly with others\n(i) which relate to the actual or contemplated business, work or activities of the Company, (ii) which result from or are suggested by any work which\nEmployee has done or may do on behalf of the Company, or by any information that Employee may receive by virtue of Employee’s employment by\nthe Company, or (iii) which are developed, tested, improved or investigated either in part or entirely on time for which Employee was paid by the\nCompany, or with the use of premises, equipment or property provided, owned, leased, or contracted for by or on behalf of the Company.\n(c) The Company and Employee agree that “Works” is defined in this Agreement to include any and all materials for which copyright\nprotection may be obtained, including without limitation literary works (including books, pamphlets, articles and other writings), mask works,\nartistic works (including designs, graphs, drawings, blueprints and other graphic works), computer programs, software program code, logic\ndiagrams, flow charts, procedural diagrams, computer programming, compilations, recordings, photographs, motion pictures and other audio-visual\nworks which Employee authors, conceives, creates, draws, makes, or writes, solely or jointly with others (i) which relate to the actual or\ncontemplated business, work or activities of the Company, (ii) which result from or are suggested by any work which Employee has done or may do\non behalf of the Company, or by any information that Employee may receive by virtue of Employee’s employment by the Company, or (iii) which\nare developed, tested, improved or investigated either in part or entirely on time for which Employee was paid by the Company, or with the use of\npremises, equipment or property provided, owned, leased, or contracted for, by, or on behalf of the Company.\n-11 -\n(d) Employee agrees to assign, transfer and convey, and hereby assigns, transfers and conveys to the Company all of the rights, titles and\ninterests in and to any and all such Inventions and Works that Employee has or may acquire in such Inventions or Works which are conceived, made,\nreduced to practice, developed, authored, created, drawn or written at any time while Employee is employed by the Company and for a period of six\n(6) months thereafter. Employee agrees that the Company will be the sole owner of all patents, copyrights, trademarks and other intellectual property\nrights in connection therewith, and agrees to take all such actions as may be requested by the Company during Employee’s employment with the\nCompany and at any time thereafter, with respect to any such Inventions or Works to confirm or evidence such assignment, transfer, conveyance or\nownership, and to assist in the Company’s maintenance, enforcement, license, assignment, transfer, or conveyance of rights in respect of the\nInventions or Works. Employee understands that if he is employed by the Company in California, his obligation to assign rights in inventions does\nnot apply to an invention that qualifies fully under the provisions of California Labor Code Section 2870.\n(e) By way of example and not limitation, at any time and from time to time, upon the request of the Company, Employee agrees to\nexecute, acknowledge, swear to, seal and deliver to the Company, any and all lawful instruments, documents and papers, give evidence and do any\nand all other lawful acts that, in the opinion of the Company, are or may be necessary or desirable to document such assignment, transfer and\nconveyance or to enable the Company to file and prosecute applications for and to acquire, maintain and enforce any and all patents, trademarks,\ncopyrights and other property rights under United States, local, state or foreign law with respect to any such Inventions or Works or to obtain any\nextension, validation, reissue, continuance or renewal of any such patent, trademark, copyright, or other intellectual property right. By way of further\nexample and not limitation, Employee agrees to meet with the Company representatives or attorneys for the purpose of initiating, maintaining or\ndefending litigation, administrative or other proceedings; and to participate fully in litigation, administrative or other proceedings as requested by the\nCompany. In the event that the Company may be unable, for any reason whatsoever, after reasonable effort, to secure Employee’s signature on any\npatent, copyright, trademark or other intellectual property application or other papers, Employee hereby irrevocably designates and appoints the\nCompany and its duly authorized officers and agents, as Employee’s agent and attorney-in-fact to act for and on behalf of Employee to execute,\nacknowledge, swear to, seal and deliver to the Company and to file any such application or applications or other papers, and to do all other lawfully\npermitted acts to further the provisions of Section 18 of this Agreement.\n(f) The Company agrees to reimburse Employee for reasonable expenses incurred by Employee in complying with the provisions of\nSections 18(d) and 18(e) of this Agreement. The Company and Employee agree that Employee is not entitled to additional compensation beyond that\npaid to Employee for the period of time that he is employed by the Company, which compensation, along with the Company’s understandings set\nforth in this Agreement, is expressly acknowledged to be adequate consideration for all of the Employee promises and obligations set forth in this\nAgreement.\n- 12-\n(g) Employee expressly acknowledges and states that all Works which are made by Employee (solely or jointly with others) are being\ncreated at the instance of the Company and are “works made for hire,” as that term is defined in the Copyright Act of 1976, 17 USC § 101. In the\nevent that such laws are inapplicable or in the event that any such Works, or any part thereof, are determined by a court of competent jurisdiction not\nto be a work made for hire, this Agreement will operate as an irrevocable and unconditional assignment by Employee to The Company of all\nEmployee’s right, title and interest (including, without limitation, all rights in and to the copyrights throughout the world, including the right to\nprepare derivative works and the rights to all renewals and extensions) in the Works in perpetuity.\n(h) Employee represents that Attachment A to this Agreement describes all inventions and works, whether patentable or not, which have\nbeen conceived, made, reduced to practice, developed, authored, created, drawn or written prior to Employee’s employment by the Company;\nprovided, however, that, Employee has not disclosed in Attachment A information that is a trade secret belonging to another, or which is the subject\nof a contract preventing Employee’s disclosure of the information to the Company.\n19. Non-Competition and Non-Solicitation. In further consideration of the compensation to be paid to Employee hereunder, Employee\nacknowledges that during the course of Employee’s employment with the Company, Company will provide Employee Confidential Information,\nwhich Employee promises to not disclose. Further, Employee will become and/or remain familiar with the Company’s trade secrets and with other\nConfidential Information concerning the Company and that Employee’s services shall be of special, unique and extraordinary value to the Company,\nand therefore, the Employee agrees that some restrictions on Employee’s activities during and after Employee’s employment are necessary to protect\nthe goodwill, Confidential Information and other legitimate interests of the Company:\n(a) During the period of Employee’s employment by the Company and, if Employee’s employment with the Company terminates for any\nreason, for a period of one (1) year thereafter (“Covenant Period”), except with the written consent of the Board, Employee shall not directly or\nindirectly, own, control, finance or participate in the ownership, control or financing of any Direct Competitor or Secondary Competitor. For the\npurposes of this Agreement, a “Direct Competitor” is defined as those entities listed on Attachment B, [as shall be modified from time-to-time by\nCompany upon written notice to Employee]. A “Secondary Competitor” is defined as a person, business or enterprise which directly or indirectly\nengages in information technology consulting and technology services, management consulting services, or outsourcing services, including, but not\nlimited to, technology strategy consulting, systems development, enterprise software package implementation and maintenance, data warehousing\nand business intelligence, application testing, application maintenance, infrastructure management, and business process outsourcing, in the\nTerritory. For purposes of this Agreement, Territory is defined as any state in the United States and any country in the world in which the Company\nhas sold or performed any services at the time of the termination of the Employee’s employment with the Company.\n(b) During the Covenant Period, the Employer further agrees that Employee shall not be employed by or provide services in any capacity\nto, a Direct Competitor in any part of the world. In addition, during the Covenant Period, Employee agrees that Employee shall not, in the Territory,\nprovide services the same as or similar to the services that Employee provided to the Company during a one (1) year period immediately preceding\nthe termination of the Employee’s employment with the Company to any Secondary Competitor.\n- 13-\n(c) In further consideration for the Company’s promises herein, Employee agrees that for the period beginning with the termination of\nEmployee’s employment with the Company for any reason, and for a period of one (1) year thereafter, Employee will not directly or indirectly solicit\nor recruit any part-time or full-time employee, representative or consultant of the Company or its subsidiaries or affiliates to work for a third party\nother than the Company or its subsidiaries or affiliates or engage in any activity that would cause any employee, representative or consultant to\nviolate any agreement with the Company or its subsidiaries or affiliates. The foregoing covenant shall not apply to any person after two (2) months\nhave elapsed after the date on which such person’s employment by the Company has terminated.\n(d) The foregoing restrictions shall not be construed to prohibit Employee’s ownership of less than one percent (1%) of any class of\nsecurities of any corporation which is engaged in any of the foregoing businesses and has a class of securities registered pursuant to the Securities\nExchange Act of 1934, as amended, provided that such ownership represents a passive investment and that neither Employee nor any group of\npersons including Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees any of its\nfinancial obligations, otherwise takes any part in its business, other than exercising Employee’s rights as a stockholder, or seeks to do any of the\nforegoing.\n20. Employee Representations.\n(a) Employee represents and warrants that this Agreement and his employment by the Company does not conflict with and will not be\nconstrained by any prior business relationship or contract, that Employee does not possess trade secrets or other proprietary information arising out\nof any prior business relationship or contract that, in Employee’s best judgment would be utilized in connection with Employee’s employment with\nthe Company. Employee further agrees that he will not disclose any such trade secrets or other proprietary information to the Company or others.\n(b) Employee represents and warrants that (i) before signing this Agreement, he has read this Agreement and is entering into this\nAgreement freely and with knowledge of its contents with the intent to be bound by it and the restrictions contained herein; (ii) the restrictions\nimposed on Employee by this Agreement are fair, reasonable and proper and required for the protection of the Company’s business interests,\nparticularly its investments in Employee (e.g ., Employee’s job knowledge and skills), its Confidential Information, as well as the goodwill\ndeveloped, and its business relationships, with its clients, customers and prospective clients and customers; and (iii) the restrictions imposed on\nEmployee by this Agreement, particularly, the post-termination restrictions, shall not preclude Employee from earning a living or engaging in\nEmployee’s profession or trade, or pursuing a career or a business.\n- 14-\n21. Equitable Relief.\n(a) Employee acknowledges that the restrictions contained in Sections 17, 18, and 19 hereof are reasonable and necessary to protect the\nlegitimate interests of the Company and its affiliates, that the Company would not have entered into this Agreement in the absence of such\nrestrictions, and that any violation of any provision of those Sections will result in irreparable injury to the Company. Employee represents that\nEmployee’s experience and capabilities are such that the restrictions contained in Section 17, 18, and 19 hereof will not prevent Employee from\nobtaining employment or otherwise earning a living at the same general level of economic benefit as is currently the case. Employee further\nrepresents and acknowledges that (i) Employee has been advised by the Company to consult Employee’s own legal counsel in respect of this\nAgreement, and (ii) that Employee has had full opportunity, prior to execution of this Agreement, to review thoroughly this Agreement with\nEmployee’s counsel.\n(b) Employee agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity of proving\nactual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of Sections 17, 18, and 19\nhereof, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled. The period of the\ninjunction shall be measured from the date of a court order granting the injunctive relief. In the event that any of the provisions of Sections 17, 18,\nand 19 hereof should ever be adjudicated to exceed the time, geographic, service, or other limitations permitted by applicable law in any jurisdiction,\nthen such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic, service, or other limitations permitted by\napplicable law.\n(c) Employee irrevocably and unconditionally (i) agrees that any suit, action or other legal proceeding arising out of Section 17, 18, and\n19 hereof, including without limitation, any action commenced by the Company for preliminary and permanent injunctive relief or other equitable\nrelief, may be brought in the United States District Court for the District of New Jersey, or if such court does not have jurisdiction or will not accept\njurisdiction, in any court of general jurisdiction in New Jersey, (ii) consents to the non-exclusive jurisdiction of any such court in any such suit,\naction or proceeding, and (iii) waives any objection which Employee may have to the laying of venue of any such suit, action or proceeding in any\nsuch court. Employee also irrevocably and unconditionally consents to the service of any process, pleadings, notices or other papers in a manner\npermitted by the notice provisions of Section 24 hereof.\n22. Term of Agreement. This Agreement shall continue in full force and effect for the duration of Employee’s employment with the Company;\nprovided, however, that after the termination of Employee’s employment during the term of this Agreement, this Agreement shall remain in effect\nuntil all of the obligations of the Parties hereunder are satisfied or have expired.\n23. Successor Company. The Company shall require any successor or successors (whether direct or indirect, by purchase, merger,\nconsolidation or otherwise) to all or substantially all of the business and/or assets of the Company, by agreement in form and substance satisfactory\nto Employee, to acknowledge expressly that this Agreement is binding upon and enforceable against the Company in accordance with the terms\nhereof, and to become jointly and severally obligated with the Company to perform this Agreement in the same manner and to the same extent that\nthe Company would be required to perform if no such succession or successions had taken place. Failure of the Company to obtain such agreement\nprior to the effectiveness of any such succession shall be a breach of this Agreement. As used in this Agreement, the Company shall mean the\nCompany as herein before defined and any such successor or successors to its business and/or assets, jointly and severally.\n- 15-\n24. Notice. All notices and other communications required or permitted hereunder or necessary or convenient in connection herewith shall be\nin writing and shall be delivered personally or mailed by registered or certified mail, return receipt requested, or by overnight express courier\nservice, as follows:\nIf to the Company, to:\nCognizant Technology Solutions Corporation\n500 Frank W. Burr Blvd.\nTeaneck, NJ 07666\nAttn: General Counsel\nIf to Employee, to:\n[insert information]\nor to such other names or addresses as the Company or Employee, as the case may be, shall designate by notice to the other Parties hereto in the\nmanner specified in this Section; provided, however, that if no such notice is given by the Company following a change in control, notice at the last\naddress of the Company or to any successor pursuant to this Section 24 shall be deemed sufficient for the purposes hereof. Any such notice shall be\ndeemed delivered and effective when received in the case of personal delivery, five days after deposit, postage prepaid, with the U.S. Postal Service\nin the case of registered or certified mail, or on the next business day in the case of overnight express courier service.\n25. Governing Law. This Agreement shall be governed by and interpreted under the laws of the State of New Jersey without giving effect to\nany conflict of laws provisions.\n26. Contents of Agreement, Amendment and Assignment.\n(a) This Agreement, including the Conduct Code, supersedes all prior agreements with respect to the subject matter hereof, sets forth the\nentire understanding between the Parties hereto with respect to the subject matter hereof and cannot be changed, modified, extended or terminated\nexcept upon written amendment executed by Employee and executed on the Company’s behalf by a duly authorized officer, except for revisions or\nadditions to Attachment B, which may be unilaterally modified by Company upon written notice to Employee; provided, however, that this\nAgreement, except as expressly set forth in Section 9, does not supersede, modify or change any existing written award agreements regarding stock\noptions, stock appreciation rights, restricted stock awards, restricted stock units, performance awards, performance units or other stock-based awards\nissued to Employee prior to the effective date of this Agreement. The provisions of this Agreement may provide for payments to Employee under\ncertain compensation or bonus plans under circumstances where such plans would not provide for\n- 16-\npayment thereof. It is the specific intention of the Parties that the provisions of this Agreement shall supersede any provisions to the contrary in such\nplans, and such plans shall be deemed to have been amended to correspond with this Agreement without further action by the Company, the\nCompany’s Board of Directors or the Board unless such amendment would contravene the provisions of section 409A of the Code and result in the\nimposition of additional taxes under section 409A of the Code upon Employee.\n(b) Nothing in this Agreement shall be construed as giving Employee any right to be retained in the employ of the Company, or as\nchanging or modifying the “at will” nature of Employee’s employment status.\n(c) All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the\nrespective heirs, representatives, successors and assigns of the Parties hereto, except that the duties and responsibilities of Employee and the\nCompany hereunder shall not be assignable in whole or in part by the Company. If Employee should die after Employee’s Termination Date and\nwhile any amount payable hereunder would still be payable to Employee hereunder if Employee had continued to live, all such amounts, unless\notherwise provided herein, shall be paid in accordance with the terms of this Agreement to Employee’s devises, legates or other designees or, if there\nis no such designee, to Employee’s estate.\n27. Severability. If any provision of this Agreement is declared illegal, invalid, or otherwise unenforceable by a court of competent\njurisdiction, such provision shall be reformed, if possible, to the extent necessary to render it legal, valid, and enforceable, or otherwise deleted, and\nthe remainder of the terms of this Agreement shall not be affected except to the extent necessary to reform or delete such illegal, invalid, or\nunenforceable provision.\n28. Remedies Cumulative; No Waiver. No right conferred upon the Parties by this Agreement is intended to be exclusive of any other right or\nremedy, and each and every such right or remedy shall be cumulative and shall be in addition to any other right or remedy given hereunder or now or\nhereafter existing at law or in equity. No delay or omission by a Party in exercising any right, remedy or power hereunder or existing at law or in\nequity shall be construed as a waiver thereof.\n29. Miscellaneous. All section headings are for convenience only. This Agreement may be executed in several counterparts, each of which is\nan original. It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any of the other\ncounterparts.\n30. Section 409A.\n(a) Interpretation. This Agreement is intended to comply with the requirements of section 409A of the Code, and specifically, with the\n“short-term deferral exception” under Treas. Reg. section 1.409A-1(b)(4) and the “separation pay exception” under Treas. Reg. section 1.409A -1(b)\n(9)(iii), and shall in all respects be administered and construed in accordance with section 409A of the Code. If any payment or benefit hereunder\ncannot be provided or made at the time specified herein without incurring sanctions on Employee under section 409A of the Code,\n- 17-\nthen such payment or benefit shall be provided in full at the earliest time thereafter when such sanctions will not be imposed. For purposes of section\n409A of the Code, all payments to be made upon a Termination of Employment under this Agreement may only be made upon a “separation from\nservice” (within the meaning of such term under section 409A of the Code), each payment made under this Agreement shall be treated as a separate\npayment, the right to a series of installment payments under this Agreement is to be treated as a right to a series of separate payments, and if a\npayment is not made by the designated payment date under this Agreement, the payment shall be made by December 31 of the calendar year in\nwhich the designated date occurs. To the extent that any payment provided for hereunder would be subject to additional tax under section 409A of\nthe Code, or would cause the administration of this Agreement to fail to satisfy the requirements of section 409A of the Code, such provision shall\nbe deemed null and void to the extent permitted by applicable law, and any such amount shall be payable in accordance with 6(b) below. In no event\nshall the Employee, directly or indirectly, designate the calendar year of payment. Nothing herein shall be construed as having modified the time and\nform of payment of any amounts or payments of “deferred compensation” (as defined under Treas. Reg. section 1.409A-1(b)(1), after giving effect\nto the exemptions in Treas. Reg. sections 1.409A-1(b)(3) through (b)(12)) that were otherwise payable pursuant to the terms of any agreement\nbetween the Company and Employee in effect on or after January 1, 2005 and prior to the date of this Agreement.\n(b) Payment Delay. Notwithstanding anything herein to the contrary, if it is necessary to postpone the commencement of any payments\nor benefits otherwise payable under this Agreement as a result of Employee’s “separation from service” with the Company to prevent the imposition\nof any accelerated or additional tax under section 409A of the Code, then the Company will postpone the commencement of the payment of any such\npayments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to Employee) that are not otherwise\npaid within the “short-term deferral exception” under Treas. Reg. section 1.409A-1(b)(4) and the “separation pay exception” under Treas. Reg.\nsection 1.409A -1(b)(9)(iii), until the first payroll date that occurs after the date that is six months following Employee’s “separation of service” with\nthe Company. If any payments are postponed due to such requirements, such postponed amounts will be paid to Employee in a lump sum on the first\npayroll date that occurs after the date that is six months following Employee’s “separation of service” with the Company. If Employee dies during\nthe postponement period prior to the payment of the postponed amount, the amounts withheld on account of section 409A of the Code shall be paid\nto the personal representative of Employee’s estate within sixty (60) days after the date of the Employee’s death.\n(c) Reimbursements. All reimbursements provided under this Agreement shall be made or provided in accordance with the requirements\nof section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during Employee’s\nlifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursement during a calendar\nyear may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be made\non or before the last day of the taxable year following the year in which the expense is incurred, and (iv) the right to reimbursement is not subject to\nliquidation or exchange for another benefit.\n- 18-\n31. Recoupment Policy. Employee acknowledges that Employee shall be subject to and hereby agrees to abide by the terms of any clawback or\nrecoupment policy that the Company has adopted or may hereafter adopt, as may be amended from time to time, with or without notice (the\n“Recoupment Policy”) to further the Company’s interests in enhancing its corporate governance practices and/or to comply with applicable law, rules\nor regulations promulgated by the Securities and Exchange Commission or the rules of the national securities exchange on which shares of the\ncommon stock of the Company are listed for trade. Employee understands that pursuant to the Recoupment Policy, the Company may seek to recoup\nall or part of any severance payments, bonus or other incentive compensation paid to certain officers and former officers, including Equity Awards,\nin the event that the Company is required to restate its financial statements. In consideration of the continued benefits to be received from the\nCompany (or a subsidiary) and the right to participate in, and receive future awards under, the Company’s cash and equity-based incentive programs,\nEmployee hereby acknowledges, understands and agrees that:\n(a) The Recoupment Policy applies to severance, cash bonuses and other incentive compensation, including Equity Awards, paid or\nawarded to Employee prior to or after the date on which the Recoupment Policy is adopted, and Employee agrees that, to the extent provided in the\nRecoupment Policy, the Recoupment Policy shall apply to equity and other award agreements outstanding as of the date of this Agreement or\nhereafter executed, and such agreements shall be deemed amended by, and to incorporate, the terms of the Recoupment Policy even if the\nRecoupment Policy is not explicitly referenced therein;\n(b) The Company shall be fully entitled to enforce the Recoupment Policy against Employee in accordance with its terms, and Employee\npromptly shall comply with any demand authorized by the Board of Directors of the Company pursuant to the terms of the Recoupment Policy for\nrepayment, return or rescission of, severance payments, a cash bonus or other incentive compensation, including Equity Awards, subject to the\nRecoupment Policy; and\n(c) Nothing in this acknowledgement shall be construed to expand the scope or terms of the Recoupment Policy, and Employee is not\nwaiving any defenses Employee may have in the event of an action for recoupment of compensation under the Recoupment Policy, other than\n(i) waiving any defense regarding the retroactive application of the Recoupment Policy to prior or existing payments or awards and (ii) waiving any\nclaim that the integration clause of any agreement excludes the application of the Recoupment Policy.\n[Signature Page Follows]\n- 19-\nIN WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed this Agreement as of the date first above written.\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nAttest:\nBy:\nIts:\nWitness\n[Employee]\n- 20-\nATTACHMENT A\n1. The following is a complete list of all inventions and works that have been conceived, made, reduced to practice, developed, authored,\ncreated, drawn or written by me alone or jointly with others prior to my engagement by the Company.\n̈\nNone.\nSee below.\nx\nDue to a preexisting contract with another party, I cannot disclose certain Inventions or Works that would otherwise be included on the\nabove-described list.\n̈\nAdditional sheets are attached.\n(number)\nEMPLOYEE:\nSignature:\nName:\n(Print)\nTitle:\nDate:\n- 21-\nATTACHMENT B – List of Direct Competitors\n- 22-\nSCHEDULE TO EXHIBIT 10.4 – FORM OF AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AND NON-DISCLOSURE,\nNON-COMPETITION, AND INVENTION ASSIGNMENT AGREEMENT\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION HAS ENTERED INTO AN AMENDED AND RESTATED EXECUTIVE\nEMPLOYMENT AND NON-DISCLOSURE, NON-COMPETITION, AND INVENTION ASSIGNMENT AGREEMENT WITH EACH OF THE\nFOLLOWING PERSONS:\nFRANCISCO D’SOUZA\nGORDON COBURN\nKAREN MCLOUGHLIN\nRAMAKRISHNAN CHANDRASEKARAN\nRAJEEV MEHTA\nMALCOLM FRANK\nSTEVEN SCHWARTZ\nIDENTICAL TO THE FORM PROVIDED HEREIN.\n- 23-
+3ab5afcaf885ec2c6b1c7c87a5d98986.pdf	effective_date jurisdiction party term	EX-99.(E)(3) 5 dex99e3.htm CONFIDENTIALITY AGREEMENT - GILEAD SCIENCES, INC.\nExhibit (e)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT, made effective as of March 5, 2008 (the “Effective Date”), by and between CV Therapeutics, Inc., with principal place\nof business at 3172 Porter Drive, Palo Alto, CA 94304 (“CVT”), and Gilead Sciences, Inc., with principal place of business at 333 Lakeside Drive\nFoster City, CA 94404 (“Gilead”), to assure the protection and preservation of the confidential and proprietary nature of information to be disclosed\nor made available by or on behalf of the disclosing party hereunder (the “Disclosing Party”) to the receiving party hereunder (the “Receiving Party”),\nis entered into in connection with the following facts and circumstances:\nWHEREAS, the parties desire to assure the confidential status of such information disclosed by CVT regarding its business and operations\nincluding but not limited to CVT’s proprietary compound ranolazine, second generation compounds thereof and CVT’s proprietary compound CVT-\n6883 (the “CVT Subject Matter”), and by Gilead regarding its business and operations including but not limited to Gilead’s research and\ndevelopment, sales and marketing capabilities and strategies (the “Gilead Subject Matter”), in the course of discussions between the parties\nregarding a potential corporate partnering relationship;\nNOW THEREFORE, in consideration of the following undertakings, the parties hereby agree as follows:\n1. Subject to the other terms of this Agreement, all information disclosed by or on behalf of the Disclosing Party to the Receiving Party\nhereunder shall to the extent it relates to the CVT Subject Matter (if disclosed by CVT, its representatives or affiliates) or to the Gilead Subject\nMatter (if disclosed by Gilead), be deemed to be “Proprietary Information” of the Disclosing Party, whether disclosed by or on behalf of the\nDisclosing Party hereunder in oral, written, graphic or electronic form. Subject to the other terms of this Agreement, such Proprietary Information of\nthe Disclosing Party shall include the Disclosing Party’s technical, research, financial, business, commercial, personnel or operational information,\nand/or ideas, trade secrets, know-how, procedures, strategies or plans; provided, however, that, Gilead shall not disclose the chemical structures of\nany of its proprietary compounds to CVT.\n2. “Proprietary Information” of the Disclosing Party shall not be deemed to include information which the Receiving Party can demonstrate by\ncompetent evidence: (a) was in the public domain when disclosed by the Disclosing Party to the Receiving Party or subsequently becomes public\nthrough no act or failure to act on the part of the Receiving Party in breach of this Agreement; (b) was already known by the Receiving Party when\ndisclosed by the Disclosing Party; (c) was or is furnished to the Receiving Party by a third party not bound by any confidentiality obligation or other\nrestriction on disclosure with respect to such information; or (d) is independently developed by the Receiving Party without any reference to or other\nuse of any Proprietary Information of the Disclosing Party.\n3. The Receiving Party shall maintain in trust and confidence, and shall not disclose to any third party except with the Disclosing Party’s\nexpress prior written consent, any and all Proprietary Information of the Disclosing Party, and shall use any and all Proprietary Information of the\nDisclosing Party only for purposes of the parties’ discussions hereunder. The Receiving Party’s obligations of confidentiality and non-use under this\nAgreement shall remain in effect for five (5) years from the Effective Date. The Receiving Party further agrees not to use the Proprietary Information\nof the Disclosing Party for competitive purposes or to obtain any commercial advantage with respect to the Disclosing Party. No rights or licenses to\nProprietary Information of either party or to any trademark, invention, copyright, patent, patent application, intellectual property or other property of\nthe either party are implied or granted under this Agreement. Nothing herein shall be construed to obligate either party to enter into any further\nagreements with the other party. Each party understands and acknowledges that any Proprietary Information is being or will be provided by the\nDisclosing Party without any representation or warranty, express or implied, as to its accuracy or completeness.\n4. The Receiving Party agrees to protect the Proprietary Information of the Disclosing Party with at least the same degree of care used to\nprotect its own proprietary information from unauthorized use or disclosure. Without\n1\nthe Disclosing Party’s express prior written consent, the Receiving Party may disclose Proprietary Information of the Disclosing Party to the\nReceiving Party’s directors, officers, employees, legal counsel, financial advisors and other retained experts and agents (each of which shall be\ndeemed to be within the meaning of the “Receiving Party”) on a need to know basis, provided that (a) the Receiving Party first advises each such\ndirector, officer, employee, legal counsel, financial advisor or other retained expert or agent to whom such Proprietary Information is to be disclosed\nof the confidential nature thereof, and (b) in each case such director, officer, employee, legal counsel, financial advisor or other retained expert or\nagent is bound by obligations of confidentiality and non-use consistent with and at least as stringent as those set forth in this Agreement.\n5. All Proprietary Information (including all copies thereof) of the Disclosing Party shall remain the property of the Disclosing Party. After the\nReceiving Party’s need for Proprietary Information of the Disclosing Party has expired, upon written request by the Disclosing Party, the Receiving\nParty shall return to the Disclosing Party all copies of Proprietary Information of the Disclosing Party or shall destroy all copies of such Proprietary\nInformation, including all memoranda, notes, and other writings in any medium prepared by Receiving Party or its experts or agents that include any\nsuch Proprietary Information and shall certify in writing to the Disclosing Party such return and/or destruction. Notwithstanding the foregoing, legal\ncounsel for the Receiving Party may retain one copy of such Proprietary Information of the Disclosing Party for archival purposes.\n6. Notwithstanding any other provision of this Agreement, disclosure of Proprietary Information of the Disclosing Party shall not be precluded\nif such disclosure is required under applicable law, regulation or valid order of a court or other governmental body to which the Receiving Party is\nsubject, provided that the Receiving Party shall first have given written notice to the Disclosing Party of the need for such disclosure reasonably in\nadvance so that the Disclosing Party may (if it elects) seek a protective order or other confidential treatment of its Proprietary Information.\nNotwithstanding the foregoing, any disclosure of Proprietary Information in accordance with this Section 6 (a) shall be limited to that which is\nreasonably necessary to comply with the terms of such law, regulation, court order or governmental body, and (b) shall in no way alter the\nconfidential nature of such Proprietary Information for all other purposes.\n7. Except for any disclosure made in accordance with Section 4 or 6 above, neither party will (and each party will direct its experts and agents\nnot to) disclose to any person either the fact that discussions or negotiations are taking place concerning a possible transaction between CVT and\nGilead, or any of the terms, conditions or other facts with respect to any such possible transaction, including the timing or status thereof, unless\n(a) both parties provide prior written consent to such disclosure or (b) in the opinion of counsel for the party wishing to make such disclosure, such\ndisclosure is required by applicable United States securities laws. If a party proposes to make any disclosure based on the opinion of its counsel, such\nparty will advise the other party in writing in advance and will consult with the other party prior to making such disclosure. The term “person” as\nused in this Agreement shall be broadly interpreted to include, without limitation, any corporation, company, partnership or individual.\n8. Gilead acknowledges that it is (a) aware that the United States securities laws prohibit any person who has material nonpublic information\nabout a company from purchasing or selling securities of such company, or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities and (b) familiar with the Securities\nExchange Act of 1934 (the “1934 Act”) and the rules and regulations promulgated thereunder and agrees that it will neither use, nor cause any third\nparty to use, any Proprietary Information of CVT in contravention of the 1934 Act or any such rules and regulations, including Rules 10b-5 and 14e-\n3.\n9. During the 36-month period commencing on the date of this Agreement (the “Standstill Period”), without the prior written consent of CVT,\nGilead shall not, nor shall it permit its affiliates (as defined in Rule 405 under the Securities Act of 1933, “Affiliates”) to: (a) acquire, offer to\nacquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights or options to acquire any\nvoting securities of CVT; (b) propose to enter into any merger or business combination involving CVT or to purchase a\n2\nmaterial portion of the assets of CVT; (c) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such\nterms are used in the proxy rules of the 1934 Act), or seek to advise or influence any person or entity with respect to the voting of, any voting\nsecurities of CVT; (d) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the 1934 Act) with respect to any\nvoting securities of CVT; (e) otherwise act, alone or in concert with others, to seek to control or influence the management, board of directors or\npolicies of CVT; or (f) take any action which would or would reasonably be expected to require CVT to make a public announcement regarding the\npossibility of a business combination, merger or other change of control transaction with Gilead. The Standstill Period shall immediately terminate in\nthe event that: (a) CVT publicly announces that it has entered into an agreement with any person or group which provides for (i) the acquisition by\nsuch person or group of more than 50% of the common stock of CVT or all or substantially all the assets of CVT or (ii) any merger, consolidation or\nsimilar business combination involving CVT and such person or group including any transaction or series of related transactions which would result\nin the stockholders of CVT immediately prior to the transaction owning less than 50% of the voting power in CVT or an entity acquiring CVT\nimmediately following the transaction or series of related transactions (each, a “Third Party Acquisition”), or (b) the board of directors of CVT\nrecommends that stockholders of CVT tender their shares or vote in favor of a Third Party Acquisition; or (c) any person or group acquires\nbeneficial ownership of more than 50% of the outstanding common stock of CVT or publicly announces an intention to engage in a negotiated Third\nParty Acquisition. The expiration of the Standstill Period will not terminate or otherwise affect any other provision in this Agreement.\n10. This Agreement shall be governed by the laws of the State of California, without regard to its conflicts of laws principles. The Receiving\nParty agrees that money damages would not be a sufficient remedy for any breach of this Agreement by the Receiving Party or its agents or\nAffiliates, and that in addition to all other remedies available to the Disclosing Party, the Disclosing Party shall be entitled to seek specific\nperformance and injunctive or other equitable relief as a remedy for any such breach. This Agreement contains the final, complete and exclusive\nagreement of the parties relative to the subject matter hereof, and supersedes any and all prior agreements or understandings (oral or written)\nbetween the parties with respect to the subject matter hereof. This Agreement may not be changed, modified, amended or supplemented except by\nmutual written agreement of both parties.\nIn Witness Whereof, a duly authorized representative of each party has executed this Agreement as of the Effective Date set forth above.\nAGREED TO:\nAGREED TO:\nCV THERAPEUTICS, INC.\nGILEAD SCIENCES, INC.\nBy:\n/s/ Lucy J. Billings\nBy:\n/s/ Kevin Young\nName:\nLucy J. Billings\nName:\nKevin Young\nTitle:\nVP Legal, Licensing & Contracts\nTitle:\nEVP, Commercial\n3	EX-99.(E)(3) 5 dex99e3.htm CONFIDENTIALITY AGREEMENT - GILEAD SCIENCES, INC.\nExhibit (e)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT, made effective as of March 5, 2008 (the “Effective Date”), by and between CV Therapeutics, Inc., with principal place\nof business at 3172 Porter Drive, Palo Alto, CA 94304 (“CVT”), and Gilead Sciences, Inc., with principal place of business at 333 Lakeside Drive\nFoster City, CA 94404 (“Gilead”), to assure the protection and preservation of the confidential and proprietary nature of information to be disclosed\nor made available by or on behalf of the disclosing party hereunder (the “Disclosing Party”) to the receiving party hereunder (the “Receiving Party”),\nis entered into in connection with the following facts and circumstances:\nWHEREAS, the parties desire to assure the confidential status of such information disclosed by CVT regarding its business and operations\nincluding but not limited to CVT’s proprietary compound ranolazine, second generation compounds thereof and CVT’s proprietary compound CVT-\n6883 (the “CVT Subject Matter”), and by Gilead regarding its business and operations including but not limited to Gilead’s research and\ndevelopment, sales and marketing capabilities and strategies (the “Gilead Subject Matter”), in the course of discussions between the parties\nregarding a potential corporate partnering relationship;\nNOW THEREFORE, in consideration of the following undertakings, the parties hereby agree as follows:\n1. Subject to the other terms of this Agreement, all information disclosed by or on behalf of the Disclosing Party to the Receiving Party\nhereunder shall to the extent it relates to the CVT Subject Matter (if disclosed by CVT, its representatives or affiliates) or to the Gilead Subject\nMatter (if disclosed by Gilead), be deemed to be “Proprietary Information” of the Disclosing Party, whether disclosed by or on behalf of the\nDisclosing Party hereunder in oral, written, graphic or electronic form. Subject to the other terms of this Agreement, such Proprietary Information of\nthe Disclosing Party shall include the Disclosing Party’s technical, research, financial, business, commercial, personnel or operational information,\nand/or ideas, trade secrets, know-how, procedures, strategies or plans; provided, however, that, Gilead shall not disclose the chemical structures of\nany of its proprietary compounds to CVT.\n2. “Proprietary Information” of the Disclosing Party shall not be deemed to include information which the Receiving Party can demonstrate by\ncompetent evidence: (a) was in the public domain when disclosed by the Disclosing Party to the Receiving Party or subsequently becomes public\nthrough no act or failure to act on the part of the Receiving Party in breach of this Agreement; (b) was already known by the Receiving Party when\ndisclosed by the Disclosing Party; (c) was or is furnished to the Receiving Party by a third party not bound by any confidentiality obligation or other\nrestriction on disclosure with respect to such information; or (d) is independently developed by the Receiving Party without any reference to or other\nuse of any Proprietary Information of the Disclosing Party.\n3. The Receiving Party shall maintain in trust and confidence, and shall not disclose to any third party except with the Disclosing Party’s\nexpress prior written consent, any and all Proprietary Information of the Disclosing Party, and shall use any and all Proprietary Information of the\nDisclosing Party only for purposes of the parties’ discussions hereunder. The Receiving Party’s obligations of confidentiality and non-use under this\nAgreement shall remain in effect for five (5) years from the Effective Date. The Receiving Party further agrees not to use the Proprietary Information\nof the Disclosing Party for competitive purposes or to obtain any commercial advantage with respect to the Disclosing Party. No rights or licenses to\nProprietary Information of either party or to any trademark, invention, copyright, patent, patent application, intellectual property or other property of\nthe either party are implied or granted under this Agreement. Nothing herein shall be construed to obligate either party to enter into any further\nagreements with the other party. Each party understands and acknowledges that any Proprietary Information is being or will be provided by the\nDisclosing Party without any representation or warranty, express or implied, as to its accuracy or completeness.\n4. The Receiving Party agrees to protect the Proprietary Information of the Disclosing Party with at least the same degree of care used to\nprotect its own proprietary information from unauthorized use or disclosure. Without\n1\nthe Disclosing Party’s express prior written consent, the Receiving Party may disclose Proprietary Information of the Disclosing Party to the\nReceiving Party’s directors, officers, employees, legal counsel, financial advisors and other retained experts and agents (each of which shall be\ndeemed to be within the meaning of the “Receiving Party”) on a need to know basis, provided that (a) the Receiving Party first advises each such\ndirector, officer, employee, legal counsel, financial advisor or other retained expert or agent to whom such Proprietary Information is to be disclosed\nof the confidential nature thereof, and (b) in each case such director, officer, employee, legal counsel, financial advisor or other retained expert or\nagent is bound by obligations of confidentiality and non-use consistent with and at least as stringent as those set forth in this Agreement.\n5. All Proprietary Information (including all copies thereof) of the Disclosing Party shall remain the property of the Disclosing Party. After the\nReceiving Party’s need for Proprietary Information of the Disclosing Party has expired, upon written request by the Disclosing Party, the Receiving\nParty shall return to the Disclosing Party all copies of Proprietary Information of the Disclosing Party or shall destroy all copies of such Proprietary\nInformation, including all memoranda, notes, and other writings in any medium prepared by Receiving Party or its experts or agents that include any\nsuch Proprietary Information and shall certify in writing to the Disclosing Party such return and/or destruction. Notwithstanding the foregoing, legal\ncounsel for the Receiving Party may retain one copy of such Proprietary Information of the Disclosing Party for archival purposes.\n6. Notwithstanding any other provision of this Agreement, disclosure of Proprietary Information of the Disclosing Party shall not be precluded\nif such disclosure is required under applicable law, regulation or valid order of a court or other governmental body to which the Receiving Party is\nsubject, provided that the Receiving Party shall first have given written notice to the Disclosing Party of the need for such disclosure reasonably in\nadvance so that the Disclosing Party may (if it elects) seek a protective order or other confidential treatment of its Proprietary Information.\nNotwithstanding the foregoing, any disclosure of Proprietary Information in accordance with this Section 6 (a) shall be limited to that which is\nreasonably necessary to comply with the terms of such law, regulation, court order or governmental body, and (b) shall in no way alter the\nconfidential nature of such Proprietary Information for all other purposes.\n7. Except for any disclosure made in accordance with Section 4 or 6 above, neither party will (and each party will direct its experts and agents\nnot to) disclose to any person either the fact that discussions or negotiations are taking place concerning a possible transaction between CVT and\nGilead, or any of the terms, conditions or other facts with respect to any such possible transaction, including the timing or status thereof, unless\n(a) both parties provide prior written consent to such disclosure or (b) in the opinion of counsel for the party wishing to make such disclosure, such\ndisclosure is required by applicable United States securities laws. If a party proposes to make any disclosure based on the opinion of its counsel, such\nparty will advise the other party in writing in advance and will consult with the other party prior to making such disclosure. The term “person” as\nused in this Agreement shall be broadly interpreted to include, without limitation, any corporation, company, partnership or individual.\n8. Gilead acknowledges that it is (a) aware that the United States securities laws prohibit any person who has material nonpublic information\nabout a company from purchasing or selling securities of such company, or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities and (b) familiar with the Securities\nExchange Act of 1934 (the “1934 Act”) and the rules and regulations promulgated thereunder and agrees that it will neither use, nor cause any third\nparty to use, any Proprietary Information of CVT in contravention of the 1934 Act or any such rules and regulations, including Rules 10b-5 and 14e-\n3.\n9. During the 36-month period commencing on the date of this Agreement (the “Standstill Period”), without the prior written consent of CVT,\nGilead shall not, nor shall it permit its affiliates (as defined in Rule 405 under the Securities Act of 1933, “Affiliates”) to: (a) acquire, offer to\nacquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights or options to acquire any\nvoting securities of CVT; (b) propose to enter into any merger or business combination involving CVT or to purchase a\n2\nmaterial portion of the assets of CVT; (c) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such\nterms are used in the proxy rules of the 1934 Act), or seek to advise or influence any person or entity with respect to the voting of, any voting\nsecurities of CVT; (d) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the 1934 Act) with respect to any\nvoting securities of CVT; (e) otherwise act, alone or in concert with others, to seek to control or influence the management, board of directors or\npolicies of CVT; or (f) take any action which would or would reasonably be expected to require CVT to make a public announcement regarding the\npossibility of a business combination, merger or other change of control transaction with Gilead. The Standstill Period shall immediately terminate in\nthe event that: (a) CVT publicly announces that it has entered into an agreement with any person or group which provides for (i) the acquisition by\nsuch person or group of more than 50% of the common stock of CVT or all or substantially all the assets of CVT or (ii) any merger, consolidation or\nsimilar business combination involving CVT and such person or group including any transaction or series of related transactions which would result\nin the stockholders of CVT immediately prior to the transaction owning less than 50% of the voting power in CVT or an entity acquiring CVT\nimmediately following the transaction or series of related transactions (each, a “Third Party Acquisition), or (b) the board of directors of CVT\nrecommends that stockholders of CVT tender their shares or vote in favor of a Third Party Acquisition; or (c) any person or group acquires\nbeneficial ownership of more than 50% of the outstanding common stock of CVT or publicly announces an intention to engage in a negotiated Third\nParty Acquisition. The expiration of the Standstill Period will not terminate or otherwise affect any other provision in this Agreement.\n10. This Agreement shall be governed by the laws of the State of California, without regard to its conflicts of laws principles. The Receiving\nParty agrees that money damages would not be a sufficient remedy for any breach of this Agreement by the Receiving Party or its agents or\nAffiliates, and that in addition to all other remedies available to the Disclosing Party, the Disclosing Party shall be entitled to seek specific\nperformance and injunctive or other equitable relief as a remedy for any such breach. This Agreement contains the final, complete and exclusive\nagreement of the parties relative to the subject matter hereof, and supersedes any and all prior agreements or understandings (oral or written)\nbetween the parties with respect to the subject matter hereof. This Agreement may not be changed, modified, amended or supplemented except by\nmutual written agreement of both parties.\nIn Witness Whereof, a duly authorized representative of each party has executed this Agreement as of the Effective Date set forth above.\nAGREED TO: AGREED TO:\nCV THERAPEUTICS, INC. GILEAD SCIENCES, INC.\nBy: /s/  Lucy J. Billings By: /s/ Kevin Young\nName: Lucy J. Billings Name: Kevin Young\nTitle: VP Legal, Licensing & Contracts Title: EVP, Commercial	EX-99.(E)(3) 5 dex99e3.htm CONFIDENTIALITY AGREEMENT GILEAD SCIENCES, INC.\nExhibit (e)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT, made effective as of March 5, 2008 (the "Effective Date"), by and between CV Therapeutics, Inc., with principal place\nof\nbusiness at 3172 Porter Drive, Palo Alto, CA 94304 ("CVT"), and Gilead Sciences, Inc., with principal place of business at 333 Lakeside Drive\nFoster City, CA 94404 ("Gilead"), to assure the protection and preservation of the confidential and proprietary nature of information to be disclosed\nor made available by or on behalf of the disclosing party hereunder (the "Disclosing Party") to the receiving party hereunder (the "Receiving Party"),\nis entered into in connection with the following facts and circumstances:\nWHEREAS, the parties desire to assure the confidentia status of such information disclosed by CVT regarding its business and operations\nincluding but not limited to CVT's proprietary compound ranolazine, second generation compounds thereof and CVT's proprietary compound CVT-\n6883 (the "CVT Subject Matter"), and by Gilead regarding its business and operations including but not limited to Gilead's research and\ndevelopment, sales and marketing capabilities and strategies (the "Gilead Subject Matter"), in the course of discussions between the parties\nregarding a potential corporate partnering relationship;\nNOW THEREFORE, in consideration of the following undertakings, the parties hereby agree as follows:\n1. Subject to the other terms of this Agreement, all information disclosed by or on behalf of the Disclosing Party to the Receiving Party\nhereunder shall to the extent it relates to the CVT Subject Matter (if disclosed by CVT, its representatives or affiliates) or to the Gilead Subject\nMatter (if disclosed by Gilead) be deemed to be "Proprietary Information" of the Disclosing Party, whether disclosed by or on behalf of the\nDisclosing Party hereunder in oral, written, graphic or electronic form. Subject to the other terms of this Agreement, such Proprietary Information of\nthe Disclosing Party shall include the Disclosing Party's technical, research, financial, business, commercial, personnel or operational information,\nand/or ideas, trade secrets, know-how, procedures, strategies or plans; provided, however, that, Gilead shall not disclose the chemical structures of\nany of its proprietary compounds to CVT.\n2.\n"Proprietary\nInformation"\nof\nthe\nDisclosing\nParty\nshall\nnot\nbe\ndeemed\nto\ninclude\ninformation\nwhich\nthe\nReceiving\nParty\ncan\ndemonstrate\nby\ncompetent evidence: (a) was in the public domain when disclosed by the Disclosing Party to the Receiving Party or subsequently becomes public\nthrough no act or failure to act on the part of the Receiving Party in breach of this Agreement; (b) was already known by the Receiving Party when\ndisclosed by the Disclosing Party; (c) was or is furnished to the Receiving Party by a third party not bound by any confidentiality obligation or other\nrestriction on disclosure with respect to such information; or (d) is independently developed by the Receiving Party without any reference to or other\nuse of any Proprietary Information of the Disclosing Party.\n3. The Receiving Party shall maintain in trust and confidence, and shall not disclose to any third party except with the Disclosing Party's\nexpress prior written consent, any and all Proprietary Information of the Disclosing Party, and shall use any and all Proprietary Information of the\nDisclosing Party only for purposes of the parties' discussions hereunder. The Receiving Party's obligations of confidentiality and non-use under this\nAgreement shall remain in effect for five (5) years from the Effective Date. The Receiving Party further agrees not to use the Proprietary Information\nof the Disclosing Party for competitive purposes or to obtain any commercial advantage with respect to the Disclosing Party. No rights or licenses to\nProprietary Information of either party or to any trademark, invention, copyright, patent, patent application, intellectual property or other property\nof\nthe either party are implied or granted under this Agreement. Nothing herein shall be construed to obligate either party to enter into any further\nagreements with the other party. Each party understands and acknowledges that any Proprietary Information is being or will be provided by the\nDisclosing Party without any representation or warranty, express or implied, as to its accuracy or completeness.\n4. The Receiving Party agrees to protect the Proprietary Information of the Disclosing Party with at least the same degree of care used to\nprotect its own proprietary information from unauthorized use or disclosure. Without\n1\nthe Disclosing Party's express prior written consent, the Receiving Party may disclose Proprietary Information of the Disclosing Party to the\nReceiving Party's directors, officers, employees, legal counsel, financial advisors and other retained experts and agents (each of which shall be\ndeemed to be within the meaning of the "Receiving Party") on a need to know basis, provided that (a) the Receiving Party first advises each such\ndirector, officer, employee, legal counsel, financial advisor or other retained expert or agent to whom such Proprietary Information is to be disclosed\nof the confidential nature thereof, and (b) in each case such director, officer, employee, legal counsel, financial advisor or other retained expert or\nagent is bound by obligations of confidentiality and non-use consistent with and at least as stringent as those set forth in this Agreement.\n5. All Proprietary Information (including all copies thereof) of the Disclosing Party shall remain the property of the Disclosing Party. After\nthe\nReceiving Party's need for Proprietary Information of the Disclosing Party has expired, upon written request by the Disclosing Party, the Receiving\nParty shall return to the Disclosing Party all copies of Proprietary Information of the Disclosing Party or shall destroy all copies of such Proprietary\nInformation, including all memoranda, notes, and other writings in any medium prepared by Receiving Party or its experts or agents that include any\nsuch Proprietary Information and shall certify in writing to the Disclosing Party such return and/or destruction. Notwithstanding the foregoing, legal\ncounsel for the Receiving Party may retain one copy of such Proprietary Information of the Disclosing Party for archival purposes.\n6. Notwithstanding any other provision of this Agreement, disclosure of Proprietary Information of the Disclosing Party shall not be precluded\nif such disclosure is required under applicable law, regulation or valid order of a court or other governmental body to which the Receiving Party is\nsubject, provided that the Receiving Party shall first have given written notice to the Disclosing Party of the need for such disclosure reasonably in\nadvance so that the Disclosing Party may (if it elects) seek a protective order or other confidential treatment of its Proprietary Information.\nNotwithstanding the foregoing, any disclosure of Proprietary Information in accordance with this Section 6 (a) shall be limited to that which is\nreasonably necessary to comply with the terms of such law, regulation, court order or governmental body, and (b) shall in no way alter the\nconfidential nature of such Proprietary Information for all other purposes.\n7. Except for any disclosure made in accordance with Section 4 or 6 above, neither party will (and each party will direct its experts and agents\nnot to) disclose to any person either the fact that discussions or negotiations are taking place concerning a possible transaction between CVT and\nGilead, or any of the terms, conditions or other facts with respect to any such possible transaction, including the timing or status thereof, unless\n(a) both parties provide prior written consent to such disclosure or (b) in the opinion of counsel for the party wishing to make such disclosure, such\ndisclosure is required by applicable United States securities laws. If a party proposes to make any disclosure based on the opinion of its counsel, such\nparty will advise the other party in writing in advance and will consult with the other party prior to making such disclosure. The term "person" as\nused in this Agreement shall be broadly interpreted to include, without limitation, any corporation, company, partnership or individual.\n8. Gilead acknowledges that it is (a) aware that the United States securities laws prohibit any person who has material nonpublic information\nabout a company from purchasing or selling securities of such company, or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities and (b) familiar with the Securities\nExchange Act of 1934 (the "1934 Act") and the rules and regulations promulgated thereunder and agrees that it will neither use, nor cause any third\nparty to use, any Proprietary Information of CVT in contravention of the 1934 Act or any such rules and regulations, including Rules 10b-5 and 14e-\n3.\n9. During the 36-month period commencing on the date of this Agreement (the "Standstill Period"), without the prior written consent of CVT,\nGilead shall not, nor shall it permit its affiliates (as defined in Rule 405 under the Securities Act of 1933, "Affiliates") to: (a) acquire, offer to\nacquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights or options to acquire any\nvoting securities of CVT; (b) propose to enter into any merger or business combination involving CVT or to purchase a\n2\nmaterial portion of the assets of CVT; (c) make, or in any way participate, directly or indirectly, in any "solicitation" of "proxies" to vote (as such\nterms are used in the proxy rules of the 1934 Act), or seek to advise or influence any person or entity with respect to the voting of, any voting\nsecurities of CVT; (d) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the 1934 Act) with respect to\nany\nvoting securities of CVT; (e) otherwise act, alone or in concert with others, to seek to control or influence the management, board of directors or\npolicies of CVT; or (f) take any action which would or would reasonably be expected to require CVT to make a public announcement regarding the\npossibility of a business combination, merger or other change of control transaction with Gilead. The Standstill Period shall immediately terminate\nin\nthe event that: (a) CVT publicly announces that it has entered into an agreement with any person or group which provides for (i) the acquisition\nby\nsuch person or group of more than 50% of the common stock of CVT or all or substantially all the assets of CVT or (ii) any merger, consolidation or\nsimilar business combination involving CVT and such person or group including any transaction or series of related transactions which would\nresult\nin the stockholders of CVT immediately prior to the transaction owning less than 50% of the voting power in CVT or an entity acquiring CVT\nimmediately following the transaction or series of related transactions (each, a "Third Party Acquisition"), or (b) the board of directors of CVT\nrecommends that stockholders of CVT tender their shares or vote in favor of a Third Party Acquisition; or (c) any person or group acquires\nbeneficial ownership of more than 50% of the outstanding common stock of CVT or publicly announces an intention to engage in a negotiated Third\nParty Acquisition. The expiration of the Standstill Period will not terminate or otherwise affect any other provision in this Agreement.\n10. This Agreement shall be governed by the laws of the State of California, without regard to its conflicts of laws principles. The Receiving\nParty agrees that money damages would not be a sufficient remedy for any breach of this Agreement by the Receiving Party or its agents or\nAffiliates, and that in addition to all other remedies available to the Disclosing Party, the Disclosing Party shall be entitled to seek specific\nperformance and injunctive or other equitable relief as a remedy for any such breach. This Agreement contains the final, complete and exclusive\nagreement of the parties relative to the subject matter hereof, and supersedes any and all prior agreements or understandings (oral or written)\nbetween the parties with respect to the subject matter hereof. This Agreement may not be changed, modified, amended or supplemented except\nby\nmutual written agreement of both parties.\nIn\nWitness Whereof, a duly authorized representative of each party has executed this Agreement as of the Effective Date set forth above.\nAGREED TO:\nAGREED TO:\nCV THERAPEUTICS, INC.\nGILEAD SCIENCES, INC.\nBy:\n/s/ Lucy J. Billings\nBy:\n/s/ Kevin Young\nName:\nLucy J. Billings\nName:\nKevin Young\nTitle:\nVP Legal, Licensing & Contracts\nTitle:\nEVP, Commercial\n3	EX-99.(E)(3) 5 dex99e3.htm CONFIDENTIALITY AGREEMENT - GILEAD SCIENCES, INC.\nExhibit (e)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT, made effective as of March 5, 2008 (the “Effective Date”), by and between CV Therapeutics, Inc., with principal place\nof business at 3172 Porter Drive, Palo Alto, CA 94304 (“CVT”), and Gilead Sciences, Inc., with principal place of business at 333 Lakeside Drive\nFoster City, CA 94404 (“Gilead”), to assure the protection and preservation of the confidential and proprietary nature of information to be disclosed\nor made available by or on behalf of the disclosing party hereunder (the “Disclosing Party”) to the receiving party hereunder (the “Receiving Party”),\nis entered into in connection with the following facts and circumstances:\nWHEREAS, the parties desire to assure the confidential status of such information disclosed by CVT regarding its business and operations\nincluding but not limited to CVT’s proprietary compound ranolazine, second generation compounds thereof and CVT’s proprietary compound CVT-\n6883 (the “CVT Subject Matter”), and by Gilead regarding its business and operations including but not limited to Gilead’s research and\ndevelopment, sales and marketing capabilities and strategies (the “Gilead Subject Matter”), in the course of discussions between the parties\nregarding a potential corporate partnering relationship;\nNOW THEREFORE, in consideration of the following undertakings, the parties hereby agree as follows:\n1. Subject to the other terms of this Agreement, all information disclosed by or on behalf of the Disclosing Party to the Receiving Party\nhereunder shall to the extent it relates to the CVT Subject Matter (if disclosed by CVT, its representatives or affiliates) or to the Gilead Subject\nMatter (if disclosed by Gilead), be deemed to be “Proprietary Information” of the Disclosing Party, whether disclosed by or on behalf of the\nDisclosing Party hereunder in oral, written, graphic or electronic form. Subject to the other terms of this Agreement, such Proprietary Information of\nthe Disclosing Party shall include the Disclosing Party’s technical, research, financial, business, commercial, personnel or operational information,\nand/or ideas, trade secrets, know-how, procedures, strategies or plans; provided, however, that, Gilead shall not disclose the chemical structures of\nany of its proprietary compounds to CVT.\n2. “Proprietary Information” of the Disclosing Party shall not be deemed to include information which the Receiving Party can demonstrate by\ncompetent evidence: (a) was in the public domain when disclosed by the Disclosing Party to the Receiving Party or subsequently becomes public\nthrough no act or failure to act on the part of the Receiving Party in breach of this Agreement; (b) was already known by the Receiving Party when\ndisclosed by the Disclosing Party; (c) was or is furnished to the Receiving Party by a third party not bound by any confidentiality obligation or other\nrestriction on disclosure with respect to such information; or (d) is independently developed by the Receiving Party without any reference to or other\nuse of any Proprietary Information of the Disclosing Party.\n3. The Receiving Party shall maintain in trust and confidence, and shall not disclose to any third party except with the Disclosing Party’s\nexpress prior written consent, any and all Proprietary Information of the Disclosing Party, and shall use any and all Proprietary Information of the\nDisclosing Party only for purposes of the parties’ discussions hereunder. The Receiving Party’s obligations of confidentiality and non-use under this\nAgreement shall remain in effect for five (5) years from the Effective Date. The Receiving Party further agrees not to use the Proprietary Information\nof the Disclosing Party for competitive purposes or to obtain any commercial advantage with respect to the Disclosing Party. No rights or licenses to\nProprietary Information of either party or to any trademark, invention, copyright, patent, patent application, intellectual property or other property of\nthe either party are implied or granted under this Agreement. Nothing herein shall be construed to obligate either party to enter into any further\nagreements with the other party. Each party understands and acknowledges that any Proprietary Information is being or will be provided by the\nDisclosing Party without any representation or warranty, express or implied, as to its accuracy or completeness.\n4. The Receiving Party agrees to protect the Proprietary Information of the Disclosing Party with at least the same degree of care used to\nprotect its own proprietary information from unauthorized use or disclosure. Without\n1\nthe Disclosing Party’s express prior written consent, the Receiving Party may disclose Proprietary Information of the Disclosing Party to the\nReceiving Party’s directors, officers, employees, legal counsel, financial advisors and other retained experts and agents (each of which shall be\ndeemed to be within the meaning of the “Receiving Party”) on a need to know basis, provided that (a) the Receiving Party first advises each such\ndirector, officer, employee, legal counsel, financial advisor or other retained expert or agent to whom such Proprietary Information is to be disclosed\nof the confidential nature thereof, and (b) in each case such director, officer, employee, legal counsel, financial advisor or other retained expert or\nagent is bound by obligations of confidentiality and non-use consistent with and at least as stringent as those set forth in this Agreement.\n5. All Proprietary Information (including all copies thereof) of the Disclosing Party shall remain the property of the Disclosing Party. After the\nReceiving Party’s need for Proprietary Information of the Disclosing Party has expired, upon written request by the Disclosing Party, the Receiving\nParty shall return to the Disclosing Party all copies of Proprietary Information of the Disclosing Party or shall destroy all copies of such Proprietary\nInformation, including all memoranda, notes, and other writings in any medium prepared by Receiving Party or its experts or agents that include any\nsuch Proprietary Information and shall certify in writing to the Disclosing Party such return and/or destruction. Notwithstanding the foregoing, legal\ncounsel for the Receiving Party may retain one copy of such Proprietary Information of the Disclosing Party for archival purposes.\n6. Notwithstanding any other provision of this Agreement, disclosure of Proprietary Information of the Disclosing Party shall not be precluded\nif such disclosure is required under applicable law, regulation or valid order of a court or other governmental body to which the Receiving Party is\nsubject, provided that the Receiving Party shall first have given written notice to the Disclosing Party of the need for such disclosure reasonably in\nadvance so that the Disclosing Party may (if it elects) seek a protective order or other confidential treatment of its Proprietary Information.\nNotwithstanding the foregoing, any disclosure of Proprietary Information in accordance with this Section 6 (a) shall be limited to that which is\nreasonably necessary to comply with the terms of such law, regulation, court order or governmental body, and (b) shall in no way alter the\nconfidential nature of such Proprietary Information for all other purposes.\n7. Except for any disclosure made in accordance with Section 4 or 6 above, neither party will (and each party will direct its experts and agents\nnot to) disclose to any person either the fact that discussions or negotiations are taking place concerning a possible transaction between CVT and\nGilead, or any of the terms, conditions or other facts with respect to any such possible transaction, including the timing or status thereof, unless\n(a) both parties provide prior written consent to such disclosure or (b) in the opinion of counsel for the party wishing to make such disclosure, such\ndisclosure is required by applicable United States securities laws. If a party proposes to make any disclosure based on the opinion of its counsel, such\nparty will advise the other party in writing in advance and will consult with the other party prior to making such disclosure. The term “person” as\nused in this Agreement shall be broadly interpreted to include, without limitation, any corporation, company, partnership or individual.\n8. Gilead acknowledges that it is (a) aware that the United States securities laws prohibit any person who has material nonpublic information\nabout a company from purchasing or selling securities of such company, or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities and (b) familiar with the Securities\nExchange Act of 1934 (the “1934 Act”) and the rules and regulations promulgated thereunder and agrees that it will neither use, nor cause any third\nparty to use, any Proprietary Information of CVT in contravention of the 1934 Act or any such rules and regulations, including Rules 10b-5 and 14e-\n3.\n9. During the 36-month period commencing on the date of this Agreement (the “Standstill Period”), without the prior written consent of CVT,\nGilead shall not, nor shall it permit its affiliates (as defined in Rule 405 under the Securities Act of 1933, “Affiliates”) to: (a) acquire, offer to\nacquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights or options to acquire any\nvoting securities of CVT; (b) propose to enter into any merger or business combination involving CVT or to purchase a\n2\nmaterial portion of the assets of CVT; (c) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such\nterms are used in the proxy rules of the 1934 Act), or seek to advise or influence any person or entity with respect to the voting of, any voting\nsecurities of CVT; (d) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the 1934 Act) with respect to any\nvoting securities of CVT; (e) otherwise act, alone or in concert with others, to seek to control or influence the management, board of directors or\npolicies of CVT; or (f) take any action which would or would reasonably be expected to require CVT to make a public announcement regarding the\npossibility of a business combination, merger or other change of control transaction with Gilead. The Standstill Period shall immediately terminate in\nthe event that: (a) CVT publicly announces that it has entered into an agreement with any person or group which provides for (i) the acquisition by\nsuch person or group of more than 50% of the common stock of CVT or all or substantially all the assets of CVT or (ii) any merger, consolidation or\nsimilar business combination involving CVT and such person or group including any transaction or series of related transactions which would result\nin the stockholders of CVT immediately prior to the transaction owning less than 50% of the voting power in CVT or an entity acquiring CVT\nimmediately following the transaction or series of related transactions (each, a “Third Party Acquisition”), or (b) the board of directors of CVT\nrecommends that stockholders of CVT tender their shares or vote in favor of a Third Party Acquisition; or (c) any person or group acquires\nbeneficial ownership of more than 50% of the outstanding common stock of CVT or publicly announces an intention to engage in a negotiated Third\nParty Acquisition. The expiration of the Standstill Period will not terminate or otherwise affect any other provision in this Agreement.\n10. This Agreement shall be governed by the laws of the State of California, without regard to its conflicts of laws principles. The Receiving\nParty agrees that money damages would not be a sufficient remedy for any breach of this Agreement by the Receiving Party or its agents or\nAffiliates, and that in addition to all other remedies available to the Disclosing Party, the Disclosing Party shall be entitled to seek specific\nperformance and injunctive or other equitable relief as a remedy for any such breach. This Agreement contains the final, complete and exclusive\nagreement of the parties relative to the subject matter hereof, and supersedes any and all prior agreements or understandings (oral or written)\nbetween the parties with respect to the subject matter hereof. This Agreement may not be changed, modified, amended or supplemented except by\nmutual written agreement of both parties.\nIn Witness Whereof, a duly authorized representative of each party has executed this Agreement as of the Effective Date set forth above.\nAGREED TO:\nAGREED TO:\nCV THERAPEUTICS, INC.\nGILEAD SCIENCES, INC.\nBy:\n/s/ Lucy J. Billings\nBy:\n/s/ Kevin Young\nName:\nLucy J. Billings\nName:\nKevin Young\nTitle:\nVP Legal, Licensing & Contracts\nTitle:\nEVP, Commercial\n3
+3acc6f6bdad6eaaf7ab21faea5ea95fa.pdf	effective_date jurisdiction party term	EX-99.(E)(3) 3 f52580exv99wxeyx3y.htm EX-(E)(3)\nExhibit (e)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into effective March 25, 2009 (the “Effective Date”) by and\nbetween IXIA, a California corporation, with its executive offices located at 26601 W. Agoura Road, Calabasas, California 91302, and\nCATAPULT COMMUNICATIONS CORPORATION a Nevada corporation, with its principal place of business located at 160 South Whisman\nRoad, Mountain View, California 94041.\nRECITALS:\nWHEREAS, the parties hereto wish to exchange certain data and other information of a highly confidential or proprietary nature all for the\npurpose of exploring a potential business relationship (the “Transaction”) to the parties’ mutual benefit;\nWHEREAS, either party may disclose, from time to time, such data and information to the other party on a confidential basis for the limited\npurpose(s) set forth on Attachment A hereto;\nNOW, THEREFORE, in consideration of the foregoing recitals and of the disclosure by one party (“Disclosing Party”) of Confidential\nInformation (as defined below) to the other party (“Receiving Party”), which Receiving Party acknowledges to be good and valuable\nconsideration for its obligations hereunder, Disclosing Party and Receiving Party hereby agree as follows:\nAGREEMENT:\n1. Each of the parties hereto acknowledges that the foregoing recitals are true and correct.\n2. “Confidential Information,” as used herein, shall mean all information and material (whether written or oral (if oral, a written summary of\nsuch information and/or material shall be delivered to Disclosing Party within ten days after its disclosure to Disclosing Party in order for such\ninformation and/or material to be treated as Confidential Information under this Agreement)) furnished or made available (whether before or\nafter the date hereof) by Disclosing Party or its directors, officers, employees, independent contractors, affiliates, representatives (including,\nwithout limitation, financial advisors, attorneys and accountants) or agents or potential sources of financing (collectively, “Representatives”) to\nReceiving Party or its Representatives, which concern the subject(s) listed on Attachment A hereto and which is proprietary to Disclosing Party,\nis marked or otherwise identified as “Confidential,” “Proprietary,” “Sensitive” or in another manner indicating its confidential and/or proprietary\nnature, or by the nature of the circumstances surrounding the disclosure or receipt of the information or material should be treated as Confidential\nInformation. The term Confidential Information includes all such information or material which Receiving Party may obtain knowledge of\nthrough or as a result of the relationship established hereunder with Disclosing Party, access to Disclosing Party’s premises or communications\nwith Disclosing Party’s\n1\nRepresentatives. The term Confidential Information also includes all notes, analyses, extracts, compilations, studies, interpretations or other\nmaterials prepared by Receiving Party to the extent they contain or reflect Disclosing Party’s Confidential Information.\nWithout limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information\nand materials: business and financial plans, financial information, strategies, know-how, designs, concepts, drawings, ideas, inventions (whether\npatentable or not), specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts,\nresearch, development, operations, production techniques, purchasing information, employee names and information, employee expertise,\nprocesses, procedures, activities, new product or new technology information, marketing techniques and materials, marketing plans, timetables,\ndevelopment plans (including prospective trade names or trademarks), customer names and other information related to customers, and pricing\npolicies.\nNotwithstanding anything to the contrary set forth in this Agreement, any and all information concerning Disclosing Party furnished or made\navailable (whether before or after the date hereof) by Disclosing Party or its Representatives to Receiving Party or its Representatives, which\nconcerns or is provided in connection with the subject(s) listed on Attachment A, including without limitation during due diligence sessions in\nperson or by conference call, in any electronic data room or pursuant to any requests for additional information, whether such information\nfurnished or made available is written or oral, or is or is not marked or otherwise identified as “Confidential” “Proprietary,” or “Sensitive,” shall\nbe deemed Confidential Information for all purposes of this Agreement, subject to paragraph 3 hereof.\n3. Confidential Information shall not include information or material that (i) is now or later becomes generally known to the public (other than\nas result of a breach of this Agreement); (ii) is independently developed by Receiving Party without use of or access to Disclosing Party’s\nConfidential Information; (iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; (iv) is later\npublished or generally disclosed to the public by Disclosing Party; (v) at the time of its disclosure to Receiving Party, (A) is already known to\nReceiving Party and, to the best knowledge of Receiving Party, is not subject to any confidentiality obligations and the disclosure thereof to\nReceiving Party has not breached any confidentiality obligations, or (B) is available on a non-confidential basis to Receiving Party; (vi) is\napproved for release by prior written authorization of Disclosing Party; or (vii) is required to be disclosed pursuant to any applicable statute, law,\nrule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that Receiving Party\nshall advise Disclosing Party of the request for disclosure in sufficient time to apply for such legal protection as may be available with respect to\nthe confidentiality of the Confidential Information. Receiving Party shall bear the burden of showing that any of the foregoing exclusions applies\nto any information or materials.\n4. Receiving Party shall use all Confidential Information solely for the limited purpose(s) set forth on Attachment A (the “Purpose”) and shall\nhold in confidence and not disclose such Confidential Information in any manner to, or permit the use thereof by, any\n2\nperson or persons other than Receiving Party’s Representatives who have a legitimate need to know or to have access to such Confidential\nInformation and who are first informed by Receiving Party of the confidential nature of the Confidential Information and agree to maintain the\nconfidentiality of such Confidential Information. Receiving Party will cause its Representatives to observe the terms of this letter agreement, and\nwill be responsible for any breach of this Agreement by any of its Representatives. Receiving Party covenants that it will use such degree of care\nas is reasonable and necessary to protect and safeguard the confidentiality of Disclosing Party’s Confidential Information and represents that such\ndegree of care is reasonably designed to protect the confidentiality of proprietary and confidential information. Except as otherwise expressly\npermitted under this Agreement, Receiving Party shall not use or disclose to others, or permit the use or disclosure of, any Confidential\nInformation of Disclosing Party, and shall not take advantage of any corporate opportunity of Disclosing Party disclosed to Receiving Party\nunder this Agreement. Receiving Party agrees to advise Disclosing Party promptly in writing upon the occurrence of any unauthorized\ndisclosure, misappropriation or misuse of any Confidential Information or other breach of this Agreement of which Receiving Party may become\naware and that any such breach does not relieve Receiving Party of any of its obligations hereunder. Except to the extent required by law, neither\nparty shall disclose the existence or subject matter of the discussions or business relationship contemplated by this Agreement, the existence of\nthis Agreement or the identity of the parties hereto.\n5. Receiving Party shall not copy (except as reasonably required for the Purpose), alter, modify, disassemble, reverse engineer or decompile\nany Confidential Information without the prior written consent of Disclosing Party. Disclosing Party understands that Receiving Party develops\nand/or acquires software, firmware and hardware for its own products and that existing or planned software, firmware of hardware independently\ndeveloped or acquired by Receiving Party may contain ideas, concepts, techniques or systems that are similar to or compete with ideas, concepts,\ntechniques or systems contained in the Disclosing Party’s Confidential Information disclosed under this Agreement. Each party understands and\nagrees that nothing in this Agreement will be construed or interpreted as limiting the right of either party hereto to develop, or acquire from a\nthird party, similar software, firmware or hardware containing such ideas, concepts, techniques or systems, for any purpose and without\nobligation to the other party, so long as such matter is created independently and lawfully (whether created by a party hereto or a third party) and\nwithout any use of or reference to the Confidential Information of Disclosing Party.\n6. If either party determines not to proceed with the Transaction, then such party will promptly inform the other party of that decision and, in\nthat case, or at any time upon the request of Disclosing Party or any of its Representatives, Receiving Party will, at the election of Disclosing\nParty, either (i) promptly destroy all copies of the written Confidential Information in its or its Representatives’ possession and confirm such\ndestruction to Disclosing Party in writing, or (ii) promptly deliver to Disclosing Party at its own expense all Confidential Information, together\nwith any copies thereof that may have been made) in its or its Representatives’ possession. In addition, in the event of such a decision or request,\nall other Confidential Information prepared by Receiving Party shall be destroyed and no copy thereof shall be retained except that Receiving\nParty shall not be required to destroy or return any\n3\nelectronic copies of Confidential Information created pursuant to its standard electronic archival and back-up procedures (it being agreed that any\nsuch electronic copies shall remain subject to the confidentiality and other obligations set forth in this Agreement). Notwithstanding the return or\ndestruction of the Confidential Information, Receiving Party and its Representatives will continue to be bound by their obligations of\nconfidentiality and other obligations hereunder, and all such obligations shall expressly survive the return or destruction of the Confidential\nInformation. Any oral Confidential Information will continue to be subject to the terms of this Agreement.\n7. The parties acknowledge that neither Disclosing Party, nor its Representatives, nor any of its or their respective officers, directors,\nemployees, agents or controlling person within the meaning of Section 20 of the Securities Exchange Act of 1934, as amended, makes any\nexpress or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and the parties agree that no\nsuch person will have any liability relating to the Confidential Information or for any errors therein or omissions therefrom. The parties further\nagree that Receiving Party is not entitled to rely on the accuracy or completeness of the Confidential Information and that Receiving Party will be\nentitled to rely solely on such representations and warranties as may be included in a definitive agreement signed by the parties with respect to\nthe Transaction, subject to such limitations and restrictions as may be contained therein.\n8. Receiving Party understands and acknowledges that Disclosing Party claims that such Confidential Information has been developed or\nobtained by Disclosing Party through the investment of significant time, effort and expense, and that such Confidential Information provides\nDisclosing Party with a significant competitive advantage in its business. Receiving Party acknowledges and agrees that due to the unique nature\nof Disclosing Party’s Confidential Information there may be no adequate remedy at law for any unauthorized disclosure or use by Receiving\nParty of any Confidential Information, or any other breach by Receiving Party hereunder, that any such breach may result in irreparable injury to\nDisclosing Party and that, therefore, upon any such breach or threat thereof, Disclosing Party shall be entitled to seek equitable relief, including\ninjunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a\nbreach by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to Disclosing Party.\n9. The parties are aware, and will advise their respective Representatives who are informed of the matters that are the subject of this\nAgreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other person when it is\nreasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n10. Each party agrees that, for a period of two years following the Effective Date, neither it nor any of its affiliates will, without the prior\nwritten consent of the other party : (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting\nsecurities or direct or indirect rights to acquire any voting securities of the other\n4\nparty or any subsidiary thereof, or of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or\ndivision thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of\n“proxies” (as such terms are used in the rules of the Securities Exchange Commission) to vote, or seek to advise or influence any person or entity\nwith respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal\nfor, or offer of (with or without conditions) any extraordinary transaction involving the other party or its securities or assets; (iv) form, join or in\nany way participate in a “group” (as defined in Section 13 (d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of\nthe foregoing; or (v) request the other party or any of its Representatives, directly or indirectly, to amend or waive any provision of this\nparagraph. Each party will promptly advise the other party of any inquiry or proposal made to it with respect to any of the foregoing. Pursuant to\nthe immediately preceding sentence, Catapult hereby advises Ixia that it may receive inquiries and proposals from third parties regarding a\npotential transaction with Catapult and, if Catapult is required to maintain the confidentiality of any such inquiries or proposals, then Catapult\nwill not be obligated to advise Ixia of any such inquiries or proposals.\n11. Each party agrees that, for a period of three (3) years following the Effective Date, it will not, directly or indirectly, solicit for employment\nor employ, nor assist any third party in soliciting for employment or employing, nor recommend to any third party that they solicit for\nemployment or employ, any employee of the other party or any of its subsidiaries with whom it has had contact or who became known to it in\nconnection with its consideration of the Transaction; provided, however, that the foregoing restrictions shall not apply to any employees who\nrespond to newspaper or internet help wanted advertisements that are not directed or targeted at employees of the other party and who were not\npreviously solicited, induced or otherwise encouraged by such party or its Representatives to respond to such advertisements.\n12. Receiving Party acknowledges and agrees that (a) Disclosing Party and its Representatives are free to conduct the process leading up to a\npossible Transaction as Disclosing Party and its Representatives, in their sole discretion, determine (including, without limitation, by negotiating\nwith any prospective buyer and entering into a preliminary or definitive agreement without prior notice to Receiving Party or any other person);\n(b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time\nwithout prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives\nwith regard to the Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason; and (c) unless\nand until a written definitive agreement concerning the Transaction has been executed and except as set forth in this Agreement, neither party nor\nany of its Representatives will have any liability to the other party with respect to the Transaction, whether by virtue of this Agreement, any other\nwritten or oral expression with respect to the Transaction or otherwise.\n13. This Agreement shall not be assignable by either party, and neither party may delegate its duties hereunder, without the prior written\nconsent of the other party, which\n5\nconsent may be granted or denied in the sole discretion of the non-assigning party, except that in the event that more than 50% of the capital\nstock of Disclosing Party is acquired by any person or entity, Receiving Party’s consent shall not be required for an assignment of this Agreement\nto such person or entity. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto\nand their respective successors and permitted assigns.\n14. Nothing in this Agreement shall be construed as creating any obligation on the part of Disclosing Party to disclose any Confidential\nInformation whatsoever. Nothing in this Agreement shall be construed as granting Receiving Party any license or any other rights with respect to\nDisclosing Party’s proprietary rights or Confidential Information. The parties further acknowledge and agree that each party reserves the right, in\nits sole discretion, to terminate discussions and negotiations with the other party at any time and for any reason or no reason.\n15. Nothing contained in this Agreement shall be construed as creating any obligation, implicit or otherwise, or an agreement on the part of\neither party to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with\nany third party. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship\nbetween Receiving Party and Disclosing Party, it being understood that Receiving Party and Disclosing Party are independent contractors vis-à-\nvis one another. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express or\nimplied, on behalf of the other party.\n16. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes\nany and all prior or contemporaneous discussions, representations and understandings, whether written or oral. In the event of a conflict between\nany provision of this Agreement and the provision(s) of any other agreement or understanding between the parties hereto, the provision of this\nAgreement shall control. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of\nCalifornia. Any legal action arising out of or in connection with this Agreement or any breach hereof shall be brought and prosecuted in an\nappropriate court of competent jurisdiction in Santa Clara County or Los Angeles County, California. In the event that litigation arises in\nconnection with enforcement of any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover its attorneys’\nfees and expenses, in addition to any other relief to which it may be deemed entitled. The inapplicability or unenforceability of any provision of\nthis Agreement shall not limit or impair the operation or validity of any other provision hereof. No provision of this Agreement shall be\namended, modified or waived except by an instrument in writing signed by the parties hereto. This Agreement may be executed in counterparts,\neach of which shall be enforceable as an original, but which together shall constitute one and the same instrument.\n17. Except as otherwise provided herein, this Agreement shall become effective on the Effective Date and shall automatically terminate one\nyear after such Effective Date; provided, however, that at any time prior to such termination, either party may terminate this Agreement upon\nwritten notice to the other party. Notwithstanding termination of this\n6\nAgreement for any reason and except as otherwise expressly provided in this Agreement, the rights and obligations herein of the parties hereto\nshall survive for three years following the termination of this Agreement with respect to any Confidential information received prior to such\ntermination.\n18. Each party warrants and represents that it has carefully read and understood this Agreement, and acknowledges receipt of a copy thereof.\nEach person executing this Agreement warrants and represents that he or she has the authority to enter into this Agreement on behalf of the\nperson, firm or corporation listed above his or her name.\nIN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the dates set forth below.\nIXIA\nCatapult Communications Corporation\nBy: /s/ Ronald W. Buckley\nBy: /s/ Richard A. Karp\nName: Ronald W. Buckley\nName: Richard A. Karp\nTitle: SVP & General Counsel\nTitle: Chairman & CEO\n7\nATTACHMENT A\nSubject(s) of Confidential Information:\nInformation and data regarding the business of each party, including but not limited to products, product development plans, customers,\nfinancial information and employees.\nPurpose(s) of Disclosure of Confidential Information:\nTo enable the parties to engage in general business discussions regarding a variety of potential business relationships, including the Receiving\nParty’s possible acquisition of all of the outstanding capital stock or all or substantially all the assets of the other party.	EX-99.(E)(3) 3 f52580exv99wxeyx3y.htm EX-(E)(3)\nExhibit (¢)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into effective March 25, 2009 (the “Effective Date”) by and\nbetween IXIA, a California corporation, with its executive offices located at 26601 W. Agoura Road, Calabasas, California 91302, and\nCATAPULT COMMUNICATIONS CORPORATION a Nevada corporation, with its principal place of business located at 160 South Whisman\nRoad, Mountain View, California 94041.\nRECITALS:\nWHEREAS, the parties hereto wish to exchange certain data and other information of a highly confidential or proprietary nature all for the\npurpose of exploring a potential business relationship (the “Transaction™) to the parties’ mutual benefit;\nWHEREAS, either party may disclose, from time to time, such data and information to the other party on a confidential basis for the limited\npurpose(s) set forth on Attachment A hereto;\nNOW, THEREFORE, in consideration of the foregoing recitals and of the disclosure by one party (“Disclosing Party”) of Confidential\nInformation (as defined below) to the other party (“Receiving Party”), which Receiving Party acknowledges to be good and valuable\nconsideration for its obligations hereunder, Disclosing Party and Receiving Party hereby agree as follows:\nAGREEMENT:\n1. Each of the parties hereto acknowledges that the foregoing recitals are true and correct.\n2. “Confidential Information,” as used herein, shall mean all information and material (whether written or oral (if oral, a written summary of\nsuch information and/or material shall be delivered to Disclosing Party within ten days after its disclosure to Disclosing Party in order for such\ninformation and/or material to be treated as Confidential Information under this Agreement)) furnished or made available (whether before or\nafter the date hereof) by Disclosing Party or its directors, officers, employees, independent contractors, affiliates, representatives (including,\nwithout limitation, financial advisors, attorneys and accountants) or agents or potential sources of financing (collectively, “Representatives™) to\nReceiving Party or its Representatives, which concern the subject(s) listed on Attachment A hereto and which is proprietary to Disclosing Party,\nis marked or otherwise identified as “Confidential,” “Proprietary,” “Sensitive” or in another manner indicating its confidential and/or proprietary\nnature, or by the nature of the circumstances surrounding the disclosure or receipt of the information or material should be treated as Confidential\nInformation. The term Confidential Information includes all such information or material which Receiving Party may obtain knowledge of\nthrough or as a result of the relationship established hereunder with Disclosing Party, access to Disclosing Party’s premises or communications\nwith Disclosing Party’s\nRepresentatives. The term Confidential Information also includes all notes, analyses, extracts, compilations, studies, interpretations or other\nmaterials prepared by Receiving Party to the extent they contain or reflect Disclosing Party’s Confidential Information.\nWithout limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information\nand materials: business and financial plans, financial information, strategies, know-how, designs, concepts, drawings, ideas, inventions (whether\npatentable or not), specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts,\nresearch, development, operations, production techniques, purchasing information, employee names and information, employee expertise,\nprocesses, procedures, activities, new product or new technology information, marketing techniques and materials, marketing plans, timetables,\ndevelopment plans (including prospective trade names or trademarks), customer names and other information related to customers, and pricing\npolicies.\nNotwithstanding anything to the contrary set forth in this Agreement, any and all information concerning Disclosing Party furnished or made\navailable (whether before or after the date hereof) by Disclosing Party or its Representatives to Receiving Party or its Representatives, which\nconcerns or is provided in connection with the subject(s) listed on Attachment A, including without limitation during due diligence sessions in\nperson or by conference call, in any electronic data room or pursuant to any requests for additional information, whether such information\nfurnished or made available is written or oral, or is or is not marked or otherwise identified as “Confidential” “Proprietary,” or “Sensitive,” shall\nbe deemed Confidential Information for all purposes of this Agreement, subject to paragraph 3 hereof.\n3. Confidential Information shall not include information or material that (i) is now or later becomes generally known to the public (other than\nas result of a breach of this Agreement); (ii) is independently developed by Receiving Party without use of or access to Disclosing Party’s\nConfidential Information; (iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; (iv) is later\npublished or generally disclosed to the public by Disclosing Party; (v) at the time of its disclosure to Receiving Party, (A) is already known to\nReceiving Party and, to the best knowledge of Receiving Party, is not subject to any confidentiality obligations and the disclosure thereof to\nReceiving Party has not breached any confidentiality obligations, or (B) is available on a non-confidential basis to Receiving Party; (vi) is\napproved for release by prior written authorization of Disclosing Party; or (vii) is required to be disclosed pursuant to any applicable statute, law,\nrule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that Receiving Party\nshall advise Disclosing Party of the request for disclosure in sufficient time to apply for such legal protection as may be available with respect to\nthe confidentiality of the Confidential Information. Receiving Party shall bear the burden of showing that any of the foregoing exclusions applies\nto any information or materials.\n4. Receiving Party shall use all Confidential Information solely for the limited purpose(s) set forth on Attachment A (the “Purpose”) and shall\nhold in confidence and not disclose such Confidential Information in any manner to, or permit the use thereof by, any\n2\nperson or persons other than Receiving Party’s Representatives who have a legitimate need to know or to have access to such Confidential\nInformation and who are first informed by Receiving Party of the confidential nature of the Confidential Information and agree to maintain the\nconfidentiality of such Confidential Information. Receiving Party will cause its Representatives to observe the terms of this letter agreement, and\nwill be responsible for any breach of this Agreement by any of its Representatives. Receiving Party covenants that it will use such degree of care\nas is reasonable and necessary to protect and safeguard the confidentiality of Disclosing Party’s Confidential Information and represents that such\ndegree of care is reasonably designed to protect the confidentiality of proprietary and confidential information. Except as otherwise expressly\npermitted under this Agreement, Receiving Party shall not use or disclose to others, or permit the use or disclosure of, any Confidential\nInformation of Disclosing Party, and shall not take advantage of any corporate opportunity of Disclosing Party disclosed to Receiving Party\nunder this Agreement. Receiving Party agrees to advise Disclosing Party promptly in writing upon the occurrence of any unauthorized\ndisclosure, misappropriation or misuse of any Confidential Information or other breach of this Agreement of which Receiving Party may become\naware and that any such breach does not relieve Receiving Party of any of its obligations hereunder. Except to the extent required by law, neither\nparty shall disclose the existence or subject matter of the discussions or business relationship contemplated by this Agreement, the existence of\nthis Agreement or the identity of the parties hereto.\n5. Receiving Party shall not copy (except as reasonably required for the Purpose), alter, modify, disassemble, reverse engineer or decompile\nany Confidential Information without the prior written consent of Disclosing Party. Disclosing Party understands that Receiving Party develops\nand/or acquires software, firmware and hardware for its own products and that existing or planned software, firmware of hardware independently\ndeveloped or acquired by Receiving Party may contain ideas, concepts, techniques or systems that are similar to or compete with ideas, concepts,\ntechniques or systems contained in the Disclosing Party’s Confidential Information disclosed under this Agreement. Each party understands and\nagrees that nothing in this Agreement will be construed or interpreted as limiting the right of either party hereto to develop, or acquire from a\nthird party, similar software, firmware or hardware containing such ideas, concepts, techniques or systems, for any purpose and without\nobligation to the other party, so long as such matter is created independently and lawfully (whether created by a party hereto or a third party) and\nwithout any use of or reference to the Confidential Information of Disclosing Party.\n6. If either party determines not to proceed with the Transaction, then such party will promptly inform the other party of that decision and, in\nthat case, or at any time upon the request of Disclosing Party or any of its Representatives, Receiving Party will, at the election of Disclosing\nParty, either (i) promptly destroy all copies of the written Confidential Information in its or its Representatives’ possession and confirm such\ndestruction to Disclosing Party in writing, or (ii) promptly deliver to Disclosing Party at its own expense all Confidential Information, together\nwith any copies thereof that may have been made) in its or its Representatives’ possession. In addition, in the event of such a decision or request,\nall other Confidential Information prepared by Receiving Party shall be destroyed and no copy thereof shall be retained except that Receiving\nParty shall not be required to destroy or return any\nelectronic copies of Confidential Information created pursuant to its standard electronic archival and back-up procedures (it being agreed that any\nsuch electronic copies shall remain subject to the confidentiality and other obligations set forth in this Agreement). Notwithstanding the return or\ndestruction of the Confidential Information, Receiving Party and its Representatives will continue to be bound by their obligations of\nconfidentiality and other obligations hereunder, and all such obligations shall expressly survive the return or destruction of the Confidential\nInformation. Any oral Confidential Information will continue to be subject to the terms of this Agreement.\n7. The parties acknowledge that neither Disclosing Party, nor its Representatives, nor any of its or their respective officers, directors,\nemployees, agents or controlling person within the meaning of Section 20 of the Securities Exchange Act of 1934, as amended, makes any\nexpress or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and the parties agree that no\nsuch person will have any liability relating to the Confidential Information or for any errors therein or omissions therefrom. The parties further\nagree that Receiving Party is not entitled to rely on the accuracy or completeness of the Confidential Information and that Receiving Party will be\nentitled to rely solely on such representations and warranties as may be included in a definitive agreement signed by the parties with respect to\nthe Transaction, subject to such limitations and restrictions as may be contained therein.\n8. Receiving Party understands and acknowledges that Disclosing Party claims that such Confidential Information has been developed or\nobtained by Disclosing Party through the investment of significant time, effort and expense, and that such Confidential Information provides\nDisclosing Party with a significant competitive advantage in its business. Receiving Party acknowledges and agrees that due to the unique nature\nof Disclosing Party’s Confidential Information there may be no adequate remedy at law for any unauthorized disclosure or use by Receiving\nParty of any Confidential Information, or any other breach by Receiving Party hereunder, that any such breach may result in irreparable injury to\nDisclosing Party and that, therefore, upon any such breach or threat thereof, Disclosing Party shall be entitled to seek equitable relief, including\ninjunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a\nbreach by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to Disclosing Party.\n9. The parties are aware, and will advise their respective Representatives who are informed of the matters that are the subject of this\nAgreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other person when it is\nreasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n10. Each party agrees that, for a period of two years following the Effective Date, neither it nor any of its affiliates will, without the prior\nwritten consent of the other party : (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting\nsecurities or direct or indirect rights to acquire any voting securities of the other\n4\nparty or any subsidiary thereof, or of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or\ndivision thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of\n“proxies” (as such terms are used in the rules of the Securities Exchange Commission) to vote, or seek to advise or influence any person or entity\nwith respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal\nfor, or offer of (with or without conditions) any extraordinary transaction involving the other party or its securities or assets; (iv) form, join or in\nany way participate in a “group” (as defined in Section 13 (d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of\nthe foregoing; or (v) request the other party or any of its Representatives, directly or indirectly, to amend or waive any provision of this\nparagraph. Each party will promptly advise the other party of any inquiry or proposal made to it with respect to any of the foregoing. Pursuant to\nthe immediately preceding sentence, Catapult hereby advises Ixia that it may receive inquiries and proposals from third parties regarding a\npotential transaction with Catapult and, if Catapult is required to maintain the confidentiality of any such inquiries or proposals, then Catapult\nwill not be obligated to advise Ixia of any such inquiries or proposals.\n11. Each party agrees that, for a period of three (3) years following the Effective Date, it will not, directly or indirectly, solicit for employment\nor employ, nor assist any third party in soliciting for employment or employing, nor recommend to any third party that they solicit for\nemployment or employ, any employee of the other party or any of its subsidiaries with whom it has had contact or who became known to it in\nconnection with its consideration of the Transaction; provided, however, that the foregoing restrictions shall not apply to any employees who\nrespond to newspaper or internet help wanted advertisements that are not directed or targeted at employees of the other party and who were not\npreviously solicited, induced or otherwise encouraged by such party or its Representatives to respond to such advertisements.\n12. Receiving Party acknowledges and agrees that (a) Disclosing Party and its Representatives are free to conduct the process leading up to a\npossible Transaction as Disclosing Party and its Representatives, in their sole discretion, determine (including, without limitation, by negotiating\nwith any prospective buyer and entering into a preliminary or definitive agreement without prior notice to Receiving Party or any other person);\n(b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time\nwithout prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives\nwith regard to the Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason; and (c) unless\nand until a written definitive agreement concerning the Transaction has been executed and except as set forth in this Agreement, neither party nor\nany of its Representatives will have any liability to the other party with respect to the Transaction, whether by virtue of this Agreement, any other\nwritten or oral expression with respect to the Transaction or otherwise.\n13. This Agreement shall not be assignable by either party, and neither party may delegate its duties hereunder, without the prior written\nconsent of the other party, which\nconsent may be granted or denied in the sole discretion of the non-assigning party, except that in the event that more than 50% of the capital\nstock of Disclosing Party is acquired by any person or entity, Receiving Party’s consent shall not be required for an assignment of this Agreement\nto such person or entity. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto\nand their respective successors and permitted assigns.\n14. Nothing in this Agreement shall be construed as creating any obligation on the part of Disclosing Party to disclose any Confidential\nInformation whatsoever. Nothing in this Agreement shall be construed as granting Receiving Party any license or any other rights with respect to\nDisclosing Party’s proprietary rights or Confidential Information. The parties further acknowledge and agree that each party reserves the right, in\nits sole discretion, to terminate discussions and negotiations with the other party at any time and for any reason or no reason.\n15. Nothing contained in this Agreement shall be construed as creating any obligation, implicit or otherwise, or an agreement on the part of\neither party to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with\nany third party. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship\nbetween Receiving Party and Disclosing Party, it being understood that Receiving Party and Disclosing Party are independent contractors vis-a-\nvis one another. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express or\nimplied, on behalf of the other party.\n16. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes\nany and all prior or contemporaneous discussions, representations and understandings, whether written or oral. In the event of a conflict between\nany provision of this Agreement and the provision(s) of any other agreement or understanding between the parties hereto, the provision of this\nAgreement shall control. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of\nCalifornia. Any legal action arising out of or in connection with this Agreement or any breach hereof shall be brought and prosecuted in an\nappropriate court of competent jurisdiction in Santa Clara County or Los Angeles County, California. In the event that litigation arises in\nconnection with enforcement of any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover its attorneys’\nfees and expenses, in addition to any other relief to which it may be deemed entitled. The inapplicability or unenforceability of any provision of\nthis Agreement shall not limit or impair the operation or validity of any other provision hereof. No provision of this Agreement shall be\namended, modified or waived except by an instrument in writing signed by the parties hereto. This Agreement may be executed in counterparts,\neach of which shall be enforceable as an original, but which together shall constitute one and the same instrument.\n17. Except as otherwise provided herein, this Agreement shall become effective on the Effective Date and shall automatically terminate one\nyear after such Effective Date; provided, however, that at any time prior to such termination, either party may terminate this Agreement upon\nwritten notice to the other party. Notwithstanding termination of this\nAgreement for any reason and except as otherwise expressly provided in this Agreement, the rights and obligations herein of the parties hereto\nshall survive for three years following the termination of this Agreement with respect to any Confidential information received prior to such\ntermination.\n18. Each party warrants and represents that it has carefully read and understood this Agreement, and acknowledges receipt of a copy thereof.\nEach person executing this Agreement warrants and represents that he or she has the authority to enter into this Agreement on behalf of the\nperson, firm or corporation listed above his or her name.\nIN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the dates set forth below.\nIXTA Catapult Communications Corporation\nBy: /s/ Ronald W. Buckley By: /s/ Richard A. Karp\nName: Ronald W. Buckley Name: Richard A. Karp\nTitle: SVP & General Counsel Title: Chairman & CEO\nATTACHMENT A\nSubject(s)_of Confidential Information:\nInformation and data regarding the business of each party, including but not limited to products, product development plans, customers,\nfinancial information and employees.\nPurpose(s)_of Disclosure of Confidential Information:\nTo enable the parties to engage in general business discussions regarding a variety of potential business relationships, including the Receiving\nParty’s possible acquisition of all of the outstanding capital stock or all or substantially all the assets of the other party.	X-99.(E)(3) 3 f52580exv99wxeyx3y.htm EX-(E)(3)\nExhibit (e)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis MUTUAL NON-DISCLOSURE AGREEMENT ("Agreement") is entered into effective March 25, 2009 (the "Effective Date") by and\nbetween IXIA, a California corporation, with its executive offices located at 26601 W. Agoura Road, Calabasas, California 91302, and\nCATAPULT COMMUNICATIONS CORPORATION a Nevada corporation, with its principal place of business located at 160 South Whisman\nRoad, Mountain View, California 94041.\nRECITALS:\nWHEREAS, the parties hereto wish to exchange certain data and other information of a highly confidential or proprietary nature all for the\npurpose of exploring a potential business relationship (the "Transaction") to the parties' mutual benefit;\nWHEREAS, either party may disclose, from time to time, such data and information to the other party on a confidential basis for the limited\npurpose(s) set forth on Attachment A hereto;\nNOW, THEREFORE, in consideration of the foregoing recitals and of the disclosure by one party ("Disclosing Party") of Confidential\nInformation (as defined below) to the other party ("Receiving Party"), which Receiving Party acknowledges to be good and valuable\nconsideration for its obligations hereunder, Disclosing Party and Receiving Party hereby agree as follows:\nAGREEMENT:\n1. Each of the parties hereto acknowledges that the foregoing recitals are true and correct.\n2. "Confidential Information," as used herein, shall mean all information and material (whether written or oral (if oral, a written summary of\nsuch information and/or material shall be delivered to Disclosing Party within ten days after its disclosure to Disclosing Party in order for such\ninformation and/or material to be treated as Confidential Information under this Agreement)) furnished or made available (whether before\nor\nafter the date hereof) by Disclosing Party or its directors, officers, employees, independent contractors, affiliates, representatives (including,\nwithout limitation, financial advisors, attorneys and accountants) or agents or potential sources of financing (collectively, "Representatives") to\nReceiving Party or its Representatives, which concern the subject(s) listed on Attachment A hereto and which is proprietary to Disclosing Party,\nis marked or otherwise identified as "Confidential," "Proprietary," "Sensitive" or in another manner indicating its confidential and/or proprietary\nnature,\nor\nby\nthe\nnature\nof\nthe\ncircumstances\nsurrounding\nthe\ndisclosure\nor\nreceipt\nof\nthe\ninformation\nor\nmaterial\nshould\nbe\ntreated\nas\nConfidential\nInformation. The term Confidential Information includes all such information or material which Receiving Party may obtain knowledge of\nthrough or as a result of the relationship established hereunder with Disclosing Party, access to Disclosing Party's premises or communications\nwith Disclosing Party's\n1\nRepresentatives. The term Confidential Information also includes all notes, analyses, extracts, compilations, studies, interpretations or other\nmaterials prepared by Receiving Party to the extent they contain or reflect Disclosing Party's Confidential Information.\nWithout limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information\nand materials: business and financial plans, financial information, strategies, know-how, designs, concepts, drawings, ideas, inventions (whether\npatentable or not), specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts,\nresearch, development, operations, production techniques, purchasing information, employee names and information, employee expertise,\nprocesses, procedures, activities, new product or new technology information, marketing techniques and materials, marketing plans, timetables,\ndevelopment plans (including prospective trade names or trademarks), customer names and other information related to customers, and pricing\npolicies.\nNotwithstanding anything to the contrary set forth in this Agreement, any and all information concerning Disclosing Party furnished or made\navailable (whether before or after the date hereof) by Disclosing Party or its Representatives to Receiving Party or its Representatives, which\nconcerns or is provided in connection with the subject(s) listed on Attachment A, including without limitation during due diligence sessions\nin\nperson or by conference call, in any electronic data room or pursuant to any requests for additional information, whether such information\nfurnished or made available is written or oral, or is or is not marked or otherwise identified as "Confidential" "Proprietary," or "Sensitive," shall\nbe deemed Confidential Information for all purposes of this Agreement, subject to paragraph 3 hereof.\n3. Confidential Information shall not include information or material that (i) is now or later becomes generally known to the public (other than\nas\nresult of a breach of this Agreement); (ii) is independently developed by Receiving Party without use of or access to Disclosing Party's\nConfidentia Information; (iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; (iv) is later\npublished or generally disclosed to the public by Disclosing Party; (v) at the time of its disclosure to Receiving Party, (A) is already known\nto\nReceiving Party and, to the best knowledge of Receiving Party, is not subject to any confidentiality obligations and the disclosure thereof to\nReceiving Party has not breached any confidentiality obligations, or (B) is available on a non-confidential basis to Receiving Party; (vi) is\napproved for release by prior written authorization of Disclosing Party; or (vii) is required to be disclosed pursuant to any applicable statute, law,\nrule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that Receiving Party\nshall advise Disclosing Party of the request for disclosure in sufficient time to apply for such legal protection as may be available\nwith\nrespect\nto\nthe confidentiality of the Confidential Information. Receiving Party shall bear the burden of showing that any of the foregoing exclusions applies\nto any information or materials.\n4. Receiving Party shall use all Confidential Information solely for the limited purpose(s) set forth on Attachment A (the "Purpose") and shall\nhold in confidence and not disclose such Confidential Information in any manner to, or permit the use thereof by, any\n2\nperson or persons other than Receiving Party's Representatives who have a legitimate need to know or to have access to such Confidential\nInformation and who are first informed by Receiving Party of the confidential nature of the Confidential Information and agree to maintain\nthe\nconfidentiality of such Confidential Information. Receiving Party will cause its Representatives to observe the terms of this letter agreement,\nand\nwill be responsible for any breach of this Agreement by any of its Representatives. Receiving Party covenants that it will use such degree of care\nas is reasonable and necessary to protect and safeguard the confidentiality of Disclosing Party's Confidential Information and represents that such\ndegree of care is reasonably designed to protect the confidentiality of proprietary and confidential information. Except as otherwise expressly\npermitted under this Agreement, Receiving Party shall not use or disclose to others, or permit the use or disclosure of, any Confidential\nInformation of Disclosing Party, and shall not take advantage of any corporate opportunity of Disclosing Party disclosed to Receiving Party\nunder this Agreement Receiving Party agrees to advise Disclosing Party promptly in writing upon the occurrence of any unauthorized\ndisclosure, misappropriation or misuse of any Confidential Information or other breach of this Agreement of which Receiving Party may become\naware\nand that any such breach does not relieve Receiving Party of any of its obligations hereunder. Except to the extent required by law, neither\nparty shall disclose the existence or subject matter of the discussions or business relationship contemplated by this Agreement, the existence\nof\nthis Agreement or the identity of the parties hereto.\n5. Receiving Party shall not copy (except as reasonably required for the Purpose), alter, modify, disassemble, reverse engineer or decompile\nany Confidential Information without the prior written consent of Disclosing Party. Disclosing Party understands that Receiving Party develops\nand/or acquires software, firmware and hardware for its own products and that existing or planned software, firmware of hardware independently\ndeveloped or acquired by Receiving Party may contain ideas, concepts, techniques or systems that are similar to or compete with ideas, concepts,\ntechniques or systems contained in the Disclosing Party's Confidential Information disclosed under this Agreement. Each party understands and\nagrees that nothing in this Agreement will be construed or interpreted as limiting the right of either party hereto to develop, or acquire from\na\nthird party, similar software, firmware or hardware containing such ideas, concepts, techniques or systems, for any purpose and without\nobligation to the other party, so long as such matter is created independently and lawfully (whether created by a party hereto or a third party) and\nwithout any use of or reference to the Confidential Information of Disclosing Party.\n6. If either party determines not to proceed with the Transaction, then such party will promptly inform the other party of that decision and,\nin\nthat case, or at any time upon the request of Disclosing Party or any of its Representatives, Receiving Party will, at the election of Disclosing\nParty, either (i) promptly destroy all copies of the written Confidential Information in its or its Representatives' possession and confirm such\ndestruction to Disclosing Party in writing, or (ii) promptly deliver to Disclosing Party at its own expense all Confidential Information, together\nwith any copies thereof that may have been made) in its or its Representatives' possession. In addition, in the event of such a decision or request,\nall other Confidential Information prepared by Receiving Party shall be destroyed and no copy thereof shall be retained except that Receiving\nParty shall not be required to destroy or return any\n3\nelectronic copies of Confidential Information created pursuant to its standard electronic archival and back-up procedures (it being agreed that any\nsuch electronic copies shall remain subject to the confidentiality and other obligations set forth in this Agreement). Notwithstanding the return or\ndestruction of the Confidential Information, Receiving Party and its Representatives will continue to be bound by their obligations of\nconfidentiality and other obligations hereunder, and all such obligations shall expressly survive the return or destruction of the Confidential\nInformation. Any oral Confidential Information will continue to be subject to the terms of this Agreement.\n7. The parties acknowledge that neither Disclosing Party, nor its Representatives, nor any of its or their respective officers, directors,\nemployees, agents or controlling person within the meaning of Section 20 of the Securities Exchange Act of 1934, as amended, makes any\nexpress or implied representation or warranty as to the accuracy or completeness of the Confidentia Information, and the parties agree that no\nsuch person will have any liability relating to the Confidential Information or for any errors therein or omissions therefrom. The parties further be\nagree that Receiving Party is not entitled to rely on the accuracy or completeness of the Confidential Information and that Receiving Party will\nentitled to rely solely on such representations and warranties as may be included in a definitive agreement signed by the parties with respect to\nthe Transaction, subject to such limitations and restrictions as may be contained therein.\n8. Receiving Party understands and acknowledges that Disclosing Party claims that such Confidential Information has been developed or\nobtained by Disclosing Party through the investment of significant time, effort and expense, and that such Confidential Information provides\nDisclosing Party with a significant competitive advantage in its business. Receiving Party acknowledges and agrees that due to the unique nature\nof Disclosing Party's Confidential Information there may be no adequate remedy at law for any unauthorized disclosure or use by Receiving\nParty of any Confidential Information, or any other breach by Receiving Party hereunder, that any such breach may result in irreparable injury\nto\nDisclosing Party and that, therefore, upon any such breach or threat thereof, Disclosing Party shall be entitled to seek equitable relief, including\ninjunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a\nbreach by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to Disclosing Party.\n9. The parties are aware, and will advise their respective Representatives who are informed of the matters that are the subject of this\nAgreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other person when it\nis\nreasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n10. Each party agrees that, for a period of two years following the Effective Date, neither it nor any of its affiliates will, without the prior\nwritten consent of the other party (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting\nsecurities or direct or indirect rights to acquire any voting securities of the other\n4\nparty or any subsidiary thereof, or of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or\ndivision thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any "solicitation"\nof\n"proxies" (as such terms are used in the rules of the Securities Exchange Commission) to vote, or seek to advise or influence any person or entity\nwith respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal\nfor, or offer of (with or without conditions) any extraordinary transaction involving the other party or its securities or assets; (iv) form, join or in\nany way participate in a "group" (as defined in Section 13 (d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of\nthe foregoing; or (v) request the other party or any of its Representatives, directly or indirectly, to amend or waive any provision of this\nparagraph. Each party will promptly advise the other party of any inquiry or proposal made to it with respect to any of the foregoing. Pursuant to\nthe immediately preceding sentence, Catapult hereby advises Ixia that it may receive inquiries and proposals from third parties regarding a\npotential transaction with Catapult and, if Catapult is required to maintain the confidentiality of any such inquiries or proposals, then Catapult\nwill not be obligated to advise Ixia of any such inquiries or proposals.\n11. Each party agrees that, for a period of three (3) years following the Effective Date, it will not, directly or indirectly, solicit for employment\nor employ, nor assist any third party in soliciting for employment or employing, nor recommend to any third party that they solicit for\nemployment or employ, any employee of the other party or any of its subsidiaries with whom it has had contact or who became known to it\nin\nconnection with its consideration of the Transaction; provided, however, that the foregoing restrictions shall not apply to any employees who\nrespond to newspaper or internet help wanted advertisements that are not directed or targeted at employees of the other party and who were not\npreviously solicited, induced or otherwise encouraged by such party or its Representatives to respond to such advertisements.\n12. Receiving Party acknowledges and agrees that (a) Disclosing Party and its Representatives are free to conduct the process leading up to a\npossible\nTransaction as Disclosing Party and its Representatives, in their sole discretion, determine (including, without limitation, by negotiating\nwith any prospective buyer and entering into a preliminary or definitive agreement without prior notice to Receiving Party or any other person);\n(b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time\nwithout prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives\nwith regard to the Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason; and (c) unless\nand until a written definitive agreement concerning the Transaction has been executed and except as set forth in this Agreement, neither party nor\nany of its Representatives will have any liability to the other party with respect to the Transaction, whether by virtue of this Agreement, any other\nwritten or oral expression with respect to the Transaction or otherwise.\n13. This Agreement shall not be assignable by either party, and neither party may delegate its duties hereunder, without the prior written\nconsent of the other party, which\n5\nconsent may be granted or denied in the sole discretion of the non-assigning party, except that in the event that more than 50% of the capital\nstock of Disclosing Party is acquired by any person or entity, Receiving Party's consent shall not be required for an assignment of this Agreement\nto such person or entity. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto\nand their respective successors and permitted assigns.\n14. Nothing in this Agreement shall be construed as creating any obligation on the part of Disclosing Party to disclose any Confidentia\nInformation whatsoever. Nothing in this Agreement shall be construed as granting Receiving Party any license or any other rights with respect to\nDisclosing Party's proprietary rights or Confidential Information The parties further acknowledge and agree that each party reserves the right,\nin\nits\nsole discretion, to terminate discussions and negotiations with the other party at any time and for any reason or no reason.\n15. Nothing contained in this Agreement shall be construed as creating any obligation, implicit or otherwise, or an agreement on the part of\neither\nparty to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with\nany third party. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship\nbetween Receiving Party and Disclosing Party, it being understood that Receiving Party and Disclosing Party are independent contractors vis-a-\nvis\none\nanother. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express\nor\nimplied, on behalf of the other party.\n16. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes\nany and all prior or contemporaneous discussions, representations and understandings, whether written or oral. In the event of a conflict between\nany provision of this Agreement and the provision(s) of any other agreement or understanding between the parties hereto, the provision of this\nAgreement shall control. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of\nCalifornia. Any legal action arising out of or in connection with this Agreement or any breach hereof shall be brought and prosecuted in\nan\nappropriate court of competent jurisdiction in Santa Clara County or Los Angeles County, California. In the event tha litigation arises in\nconnection with enforcement of any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover its attorneys'\nfees and expenses, in addition to any other relief to which it may be deemed entitled. The inapplicability or unenforceability of any provision\nof\nthis Agreement shall not limit or impair the operation or validity of any other provision hereof. No provision of this Agreement shall be\namended, modified or waived except by an instrument in writing signed by the parties hereto. This Agreement may be executed in counterparts,\neach of which shall be enforceable as an original, but which together shall constitute one and the same instrument.\n17. Except as otherwise provided herein, this Agreement shall become effective on the Effective Date and shall automatically terminate one\nyear after such Effective Date; provided, however, that at any time prior to such termination, either party may terminate this Agreement upon\nwritten notice to the other party. Notwithstanding termination of this\n6\nAgreement for any reason and except as otherwise expressly provided in this Agreement, the rights and obligations herein of the parties hereto\nshall survive for three years following the termination of this Agreement with respect to any Confidential information received prior to such\ntermination.\n18. Each party warrants and represents that it has carefully read and understood this Agreement, and acknowledges receipt of a copy thereof.\nEach person executing this Agreement warrants and represents that he or she has the authority to enter into this Agreement on behalf of the\nperson, firm or corporation listed above his or her name.\nIN\nWITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the dates set forth below.\nIXIA\nCatapult Communications Corporation\nBy:\n/s/ Ronald W. Buckley\nBy:\n/s/ Richard A. Karp\nName: Ronald W. Buckley\nName: Richard A. Karp\nTitle: SVP & General Counsel\nTitle: Chairman & CEO\n7\nATTACHMENT A\nSubject(s) of Confidential Information:\nInformation and data regarding the business of each party, including but not limited to products, product development plans, customers,\nfinancial information and employees.\nPurpose(s) of Disclosure of Confidential Information:\nTo enable the parties to engage in general business discussions regarding a variety of potential business relationships, including the Receiving\nParty's possible acquisition of all of the outstanding capital stock or all or substantially all the assets of the other party.	EX-99.(E)(3) 3 f52580exv99wxeyx3y.htm EX-(E)(3)\nExhibit (e)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis MUTUAL NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into effective March 25, 2009 (the “Effective Date”) by and\nbetween IXIA, a California corporation, with its executive offices located at 26601 W. Agoura Road, Calabasas, California 91302, and\nCATAPULT COMMUNICATIONS CORPORATION a Nevada corporation, with its principal place of business located at 160 South Whisman\nRoad, Mountain View, California 94041.\nRECITALS:\nWHEREAS, the parties hereto wish to exchange certain data and other information of a highly confidential or proprietary nature all for the\npurpose of exploring a potential business relationship (the “Transaction”) to the parties’ mutual benefit;\nWHEREAS, either party may disclose, from time to time, such data and information to the other party on a confidential basis for the limited\npurpose(s) set forth on Attachment A hereto;\nNOW, THEREFORE, in consideration of the foregoing recitals and of the disclosure by one party (“Disclosing Party”) of Confidential\nInformation (as defined below) to the other party (“Receiving Party”), which Receiving Party acknowledges to be good and valuable\nconsideration for its obligations hereunder, Disclosing Party and Receiving Party hereby agree as follows:\nAGREEMENT:\n1. Each of the parties hereto acknowledges that the foregoing recitals are true and correct.\n2. “Confidential Information,” as used herein, shall mean all information and material (whether written or oral (if oral, a written summary of\nsuch information and/or material shall be delivered to Disclosing Party within ten days after its disclosure to Disclosing Party in order for such\ninformation and/or material to be treated as Confidential Information under this Agreement)) furnished or made available (whether before or\nafter the date hereof) by Disclosing Party or its directors, officers, employees, independent contractors, affiliates, representatives (including,\nwithout limitation, financial advisors, attorneys and accountants) or agents or potential sources of financing (collectively, “Representatives”) to\nReceiving Party or its Representatives, which concern the subject(s) listed on Attachment A hereto and which is proprietary to Disclosing Party,\nis marked or otherwise identified as “Confidential,” “Proprietary,” “Sensitive” or in another manner indicating its confidential and/or proprietary\nnature, or by the nature of the circumstances surrounding the disclosure or receipt of the information or material should be treated as Confidential\nInformation. The term Confidential Information includes all such information or material which Receiving Party may obtain knowledge of\nthrough or as a result of the relationship established hereunder with Disclosing Party, access to Disclosing Party’s premises or communications\nwith Disclosing Party’s\n1\nRepresentatives. The term Confidential Information also includes all notes, analyses, extracts, compilations, studies, interpretations or other\nmaterials prepared by Receiving Party to the extent they contain or reflect Disclosing Party’s Confidential Information.\nWithout limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information\nand materials: business and financial plans, financial information, strategies, know-how, designs, concepts, drawings, ideas, inventions (whether\npatentable or not), specifications, techniques, discoveries, models, data, source code, object code, documentation, diagrams, flow charts,\nresearch, development, operations, production techniques, purchasing information, employee names and information, employee expertise,\nprocesses, procedures, activities, new product or new technology information, marketing techniques and materials, marketing plans, timetables,\ndevelopment plans (including prospective trade names or trademarks), customer names and other information related to customers, and pricing\npolicies.\nNotwithstanding anything to the contrary set forth in this Agreement, any and all information concerning Disclosing Party furnished or made\navailable (whether before or after the date hereof) by Disclosing Party or its Representatives to Receiving Party or its Representatives, which\nconcerns or is provided in connection with the subject(s) listed on Attachment A, including without limitation during due diligence sessions in\nperson or by conference call, in any electronic data room or pursuant to any requests for additional information, whether such information\nfurnished or made available is written or oral, or is or is not marked or otherwise identified as “Confidential” “Proprietary,” or “Sensitive,” shall\nbe deemed Confidential Information for all purposes of this Agreement, subject to paragraph 3 hereof.\n3. Confidential Information shall not include information or material that (i) is now or later becomes generally known to the public (other than\nas result of a breach of this Agreement); (ii) is independently developed by Receiving Party without use of or access to Disclosing Party’s\nConfidential Information; (iii) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; (iv) is later\npublished or generally disclosed to the public by Disclosing Party; (v) at the time of its disclosure to Receiving Party, (A) is already known to\nReceiving Party and, to the best knowledge of Receiving Party, is not subject to any confidentiality obligations and the disclosure thereof to\nReceiving Party has not breached any confidentiality obligations, or (B) is available on a non-confidential basis to Receiving Party; (vi) is\napproved for release by prior written authorization of Disclosing Party; or (vii) is required to be disclosed pursuant to any applicable statute, law,\nrule or regulation of any governmental authority or pursuant to any order of any court of competent jurisdiction, provided that Receiving Party\nshall advise Disclosing Party of the request for disclosure in sufficient time to apply for such legal protection as may be available with respect to\nthe confidentiality of the Confidential Information. Receiving Party shall bear the burden of showing that any of the foregoing exclusions applies\nto any information or materials.\n4. Receiving Party shall use all Confidential Information solely for the limited purpose(s) set forth on Attachment A (the “Purpose”) and shall\nhold in confidence and not disclose such Confidential Information in any manner to, or permit the use thereof by, any\n2\nperson or persons other than Receiving Party’s Representatives who have a legitimate need to know or to have access to such Confidential\nInformation and who are first informed by Receiving Party of the confidential nature of the Confidential Information and agree to maintain the\nconfidentiality of such Confidential Information. Receiving Party will cause its Representatives to observe the terms of this letter agreement, and\nwill be responsible for any breach of this Agreement by any of its Representatives. Receiving Party covenants that it will use such degree of care\nas is reasonable and necessary to protect and safeguard the confidentiality of Disclosing Party’s Confidential Information and represents that such\ndegree of care is reasonably designed to protect the confidentiality of proprietary and confidential information. Except as otherwise expressly\npermitted under this Agreement, Receiving Party shall not use or disclose to others, or permit the use or disclosure of, any Confidential\nInformation of Disclosing Party, and shall not take advantage of any corporate opportunity of Disclosing Party disclosed to Receiving Party\nunder this Agreement. Receiving Party agrees to advise Disclosing Party promptly in writing upon the occurrence of any unauthorized\ndisclosure, misappropriation or misuse of any Confidential Information or other breach of this Agreement of which Receiving Party may become\naware and that any such breach does not relieve Receiving Party of any of its obligations hereunder. Except to the extent required by law, neither\nparty shall disclose the existence or subject matter of the discussions or business relationship contemplated by this Agreement, the existence of\nthis Agreement or the identity of the parties hereto.\n5. Receiving Party shall not copy (except as reasonably required for the Purpose), alter, modify, disassemble, reverse engineer or decompile\nany Confidential Information without the prior written consent of Disclosing Party. Disclosing Party understands that Receiving Party develops\nand/or acquires software, firmware and hardware for its own products and that existing or planned software, firmware of hardware independently\ndeveloped or acquired by Receiving Party may contain ideas, concepts, techniques or systems that are similar to or compete with ideas, concepts,\ntechniques or systems contained in the Disclosing Party’s Confidential Information disclosed under this Agreement. Each party understands and\nagrees that nothing in this Agreement will be construed or interpreted as limiting the right of either party hereto to develop, or acquire from a\nthird party, similar software, firmware or hardware containing such ideas, concepts, techniques or systems, for any purpose and without\nobligation to the other party, so long as such matter is created independently and lawfully (whether created by a party hereto or a third party) and\nwithout any use of or reference to the Confidential Information of Disclosing Party.\n6. If either party determines not to proceed with the Transaction, then such party will promptly inform the other party of that decision and, in\nthat case, or at any time upon the request of Disclosing Party or any of its Representatives, Receiving Party will, at the election of Disclosing\nParty, either (i) promptly destroy all copies of the written Confidential Information in its or its Representatives’ possession and confirm such\ndestruction to Disclosing Party in writing, or (ii) promptly deliver to Disclosing Party at its own expense all Confidential Information, together\nwith any copies thereof that may have been made) in its or its Representatives’ possession. In addition, in the event of such a decision or request,\nall other Confidential Information prepared by Receiving Party shall be destroyed and no copy thereof shall be retained except that Receiving\nParty shall not be required to destroy or return any\n3\nelectronic copies of Confidential Information created pursuant to its standard electronic archival and back-up procedures (it being agreed that any\nsuch electronic copies shall remain subject to the confidentiality and other obligations set forth in this Agreement). Notwithstanding the return or\ndestruction of the Confidential Information, Receiving Party and its Representatives will continue to be bound by their obligations of\nconfidentiality and other obligations hereunder, and all such obligations shall expressly survive the return or destruction of the Confidential\nInformation. Any oral Confidential Information will continue to be subject to the terms of this Agreement.\n7. The parties acknowledge that neither Disclosing Party, nor its Representatives, nor any of its or their respective officers, directors,\nemployees, agents or controlling person within the meaning of Section 20 of the Securities Exchange Act of 1934, as amended, makes any\nexpress or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and the parties agree that no\nsuch person will have any liability relating to the Confidential Information or for any errors therein or omissions therefrom. The parties further\nagree that Receiving Party is not entitled to rely on the accuracy or completeness of the Confidential Information and that Receiving Party will be\nentitled to rely solely on such representations and warranties as may be included in a definitive agreement signed by the parties with respect to\nthe Transaction, subject to such limitations and restrictions as may be contained therein.\n8. Receiving Party understands and acknowledges that Disclosing Party claims that such Confidential Information has been developed or\nobtained by Disclosing Party through the investment of significant time, effort and expense, and that such Confidential Information provides\nDisclosing Party with a significant competitive advantage in its business. Receiving Party acknowledges and agrees that due to the unique nature\nof Disclosing Party’s Confidential Information there may be no adequate remedy at law for any unauthorized disclosure or use by Receiving\nParty of any Confidential Information, or any other breach by Receiving Party hereunder, that any such breach may result in irreparable injury to\nDisclosing Party and that, therefore, upon any such breach or threat thereof, Disclosing Party shall be entitled to seek equitable relief, including\ninjunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a\nbreach by Receiving Party of this Agreement but shall be in addition to all other remedies available at law or equity to Disclosing Party.\n9. The parties are aware, and will advise their respective Representatives who are informed of the matters that are the subject of this\nAgreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other person when it is\nreasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n10. Each party agrees that, for a period of two years following the Effective Date, neither it nor any of its affiliates will, without the prior\nwritten consent of the other party : (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting\nsecurities or direct or indirect rights to acquire any voting securities of the other\n4\nparty or any subsidiary thereof, or of any successor to or person in control of the other party, or any assets of the other party or any subsidiary or\ndivision thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of\n“proxies” (as such terms are used in the rules of the Securities Exchange Commission) to vote, or seek to advise or influence any person or entity\nwith respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal\nfor, or offer of (with or without conditions) any extraordinary transaction involving the other party or its securities or assets; (iv) form, join or in\nany way participate in a “group” (as defined in Section 13 (d)(3) of the Securities Exchange Act of 1934, as amended) in connection with any of\nthe foregoing; or (v) request the other party or any of its Representatives, directly or indirectly, to amend or waive any provision of this\nparagraph. Each party will promptly advise the other party of any inquiry or proposal made to it with respect to any of the foregoing. Pursuant to\nthe immediately preceding sentence, Catapult hereby advises Ixia that it may receive inquiries and proposals from third parties regarding a\npotential transaction with Catapult and, if Catapult is required to maintain the confidentiality of any such inquiries or proposals, then Catapult\nwill not be obligated to advise Ixia of any such inquiries or proposals.\n11. Each party agrees that, for a period of three (3) years following the Effective Date, it will not, directly or indirectly, solicit for employment\nor employ, nor assist any third party in soliciting for employment or employing, nor recommend to any third party that they solicit for\nemployment or employ, any employee of the other party or any of its subsidiaries with whom it has had contact or who became known to it in\nconnection with its consideration of the Transaction; provided, however, that the foregoing restrictions shall not apply to any employees who\nrespond to newspaper or internet help wanted advertisements that are not directed or targeted at employees of the other party and who were not\npreviously solicited, induced or otherwise encouraged by such party or its Representatives to respond to such advertisements.\n12. Receiving Party acknowledges and agrees that (a) Disclosing Party and its Representatives are free to conduct the process leading up to a\npossible Transaction as Disclosing Party and its Representatives, in their sole discretion, determine (including, without limitation, by negotiating\nwith any prospective buyer and entering into a preliminary or definitive agreement without prior notice to Receiving Party or any other person);\n(b) Disclosing Party reserves the right, in its sole discretion, to change the procedures relating to its consideration of the Transaction at any time\nwithout prior notice to Receiving Party or any other person, to reject any and all proposals made by Receiving Party or any of its Representatives\nwith regard to the Transaction, and to terminate discussions and negotiations with Receiving Party at any time and for any reason; and (c) unless\nand until a written definitive agreement concerning the Transaction has been executed and except as set forth in this Agreement, neither party nor\nany of its Representatives will have any liability to the other party with respect to the Transaction, whether by virtue of this Agreement, any other\nwritten or oral expression with respect to the Transaction or otherwise.\n13. This Agreement shall not be assignable by either party, and neither party may delegate its duties hereunder, without the prior written\nconsent of the other party, which\n5\nconsent may be granted or denied in the sole discretion of the non-assigning party, except that in the event that more than 50% of the capital\nstock of Disclosing Party is acquired by any person or entity, Receiving Party’s consent shall not be required for an assignment of this Agreement\nto such person or entity. All of the terms and provisions contained herein shall inure to the benefit of and shall be binding upon the parties hereto\nand their respective successors and permitted assigns.\n14. Nothing in this Agreement shall be construed as creating any obligation on the part of Disclosing Party to disclose any Confidential\nInformation whatsoever. Nothing in this Agreement shall be construed as granting Receiving Party any license or any other rights with respect to\nDisclosing Party’s proprietary rights or Confidential Information. The parties further acknowledge and agree that each party reserves the right, in\nits sole discretion, to terminate discussions and negotiations with the other party at any time and for any reason or no reason.\n15. Nothing contained in this Agreement shall be construed as creating any obligation, implicit or otherwise, or an agreement on the part of\neither party to enter into a business relationship with the other party, or an obligation to refrain from entering into a business relationship with\nany third party. Nothing contained in the Agreement shall be construed as creating a joint venture, partnership or employment relationship\nbetween Receiving Party and Disclosing Party, it being understood that Receiving Party and Disclosing Party are independent contractors vis-à-\nvis one another. Except as specified herein, no party shall have the right, power or implied authority to create any obligation or duty, express or\nimplied, on behalf of the other party.\n16. This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes\nany and all prior or contemporaneous discussions, representations and understandings, whether written or oral. In the event of a conflict between\nany provision of this Agreement and the provision(s) of any other agreement or understanding between the parties hereto, the provision of this\nAgreement shall control. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of\nCalifornia. Any legal action arising out of or in connection with this Agreement or any breach hereof shall be brought and prosecuted in an\nappropriate court of competent jurisdiction in Santa Clara County or Los Angeles County, California. In the event that litigation arises in\nconnection with enforcement of any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover its attorneys’\nfees and expenses, in addition to any other relief to which it may be deemed entitled. The inapplicability or unenforceability of any provision of\nthis Agreement shall not limit or impair the operation or validity of any other provision hereof. No provision of this Agreement shall be\namended, modified or waived except by an instrument in writing signed by the parties hereto. This Agreement may be executed in counterparts,\neach of which shall be enforceable as an original, but which together shall constitute one and the same instrument.\n17. Except as otherwise provided herein, this Agreement shall become effective on the Effective Date and shall automatically terminate one\nyear after such Effective Date; provided, however, that at any time prior to such termination, either party may terminate this Agreement upon\nwritten notice to the other party. Notwithstanding termination of this\n6\nAgreement for any reason and except as otherwise expressly provided in this Agreement, the rights and obligations herein of the parties hereto\nshall survive for three years following the termination of this Agreement with respect to any Confidential information received prior to such\ntermination.\n18. Each party warrants and represents that it has carefully read and understood this Agreement, and acknowledges receipt of a copy thereof.\nEach person executing this Agreement warrants and represents that he or she has the authority to enter into this Agreement on behalf of the\nperson, firm or corporation listed above his or her name.\nIN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Agreement as of the dates set forth below.\nIXIA\nCatapult Communications Corporation\nBy: /s/ Ronald W. Buckley\nBy: /s/ Richard A. Karp\nName: Ronald W. Buckley\nName: Richard A. Karp\nTitle: SVP & General Counsel\nTitle: Chairman & CEO\n7\nATTACHMENT A\nSubject(s) of Confidential Information:\nInformation and data regarding the business of each party, including but not limited to products, product development plans, customers,\nfinancial information and employees.\nPurpose(s) of Disclosure of Confidential Information:\nTo enable the parties to engage in general business discussions regarding a variety of potential business relationships, including the Receiving\nParty’s possible acquisition of all of the outstanding capital stock or all or substantially all the assets of the other party.
+3c19cab83f40f722fc8c1432299d7655.pdf	effective_date jurisdiction party term	EX-10 2 bhb8kmaltzhireex101.htm\nEXHIBIT 10.1\nCHANGE IN CONTROL, CONFIDENTIALITY,\nAND NONCOMPETITION AGREEMENT\nTHIS CHANGE IN CONTROL, CONFIDENTIALITY AND NONCOMPETITION\nAGREEMENT is made and entered into this 10th day of July, 2014 by and between BAR\nHARBOR BANKSHARES, a Maine corporation with its headquarters located in Bar Harbor,\nMaine (hereinafter, “the Company”), and Richard Maltz, a resident of Hampden, , Maine\n(hereinafter, “the Executive").\nWITNESSETH:\nWHEREAS, Bar Harbor Bank & Trust is a wholly-owned first tier banking subsidiary of\nBar Harbor Bankshares, and Bar Harbor Trust Services is a second tier non-depository trust\ncompany subsidiary of Bar Harbor Bankshares; and\nWHEREAS, the Executive is an employee of the Employer; and\nWHEREAS, the Employer wishes to retain the services of the Executive by providing the\nassurances contained herein.\nNOW, THEREFORE, the parties hereto do hereby agree as follows:\n1.\nDEFINTIONS.\n1.1. Bank shall mean Bar Harbor Bank & Trust.\n1.2. Base Compensation shall mean the annual base salary payable by the Employer to\nthe Executive, excluding any bonuses, incentive compensation and other forms of additional\ncompensation.\n1.3 Cause shall be deemed to exist only in the event the Executive is convicted by a\ncourt of competent jurisdiction of a felony involving dishonesty or fraud on the part of the\nExecutive in his or her relationship with the Employer.\n1.4. Change in Control shall mean the occurrence of any one of the following events:\n(a) Any person, including a group (as such term is used in Section 13(d) of\nthe Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes the\nbeneficial owner (as determined pursuant to Rule 13d-3 under the Exchange Act),\ndirectly or indirectly, of securities of Bar Harbor Bankshares representing more than fifty\npercent (50%) of the combined voting power of Bar Harbor Bankshares' then outstanding\nsecurities, other than as a result of an issuance of securities initiated by Bar Harbor\nBankshares in the ordinary course of its business; or\n(b) Bar Harbor Bankshares is party to a Business Combination (as hereinafter\ndefined) unless, following consummation of the Business Combination, more than fifty\npercent (50%) of the outstanding voting securities of the resulting entity are beneficially\nowned, directly or indirectly, by the holders of Bar Harbor Bankshares' outstanding\nvoting securities immediately prior to the Business Combination in substantially the same\nproportions as those existing immediately prior to the Business Combination; or\n(c) The stockholders of Bar Harbor Bankshares approve a plan of complete\nliquidation of Bar Harbor Bankshares or an agreement for the sale or disposition by Bar\nHarbor Bankshares of all or substantially all of Bar Harbor Bankshares' assets to another\nperson or entity that is not a wholly owned subsidiary of Bar Harbor Bankshares.\nFor purposes of this Section 1.4, a Business Combination means any cash tender or\nexchange offer, merger or other business combination, sale of stock, or sale of all or substantially\nall of the assets, or any combination of the foregoing transactions.\nFor purposes of this Section 1.4, a Change in Control shall exclude any internal corporate\nchange, reorganization or other such event, which occurred prior to or may occur following the\ndate of this Agreement.\n1.5. Code shall mean the Internal Revenue Code of 1986, as amended, and as it may\nbe amended from time to time, together with the rules and regulations promulgated under such\ncode.\n1.6. Company shall mean Bar Harbor Bankshares.\n1.7. Date of Termination shall mean:\n(a) If the Executive incurs a separation from service for Disability, thirty (30)\ndays after Notice of Termination for Disability is given by the Employer to the Executive\nand the Executive shall not have returned to the performance of his duties on a full-time\nbasis during such thirty (30) day period;\n(b) If the Executive's service is separated by the Employer for Cause or by the\nExecutive for Good Reason, the date on which the Executive separates from service with\nthe Employer; and\n(c) If the Executive incurs a separation from service for any other reason, the\ndate on which the Executive incurs a separation from service with the Employer.\nWhether the Executive has incurred a separation from service is determined based on\nwhether the facts and circumstances indicate that the Employer and the Executive reasonably\nanticipated that no further services would be performed after a certain date.\n1.8. Disability shall mean a condition: (a) which causes the Executive to be unable to\nengage in any substantial gainful activity by reason of any medically determinable physical or\nmental impairment which can be expected to result in death or which can be expected to last for\na continuous period of not less than twelve months; or (b) which results in the Executive\nreceiving, by reason of any medically determinable physical or mental impairment which can be\nexpected to result in death or which can be expected to last for a continuous period of not less\nthan twelve months, income replacement benefits for a period of not less than three months\nunder an accident and health plan covering employees of the Employer. Disability shall be\ndeemed to exist only when the disability has been certified to the Board of Directors of the\nCompany by a licensed physician approved by the Board of Directors of the Company.\n1.9. Employer shall mean the Company, the Bank or Trust Services (whichever entity\nis the employer of the Executive).\n1.10. Exemption Amount shall mean two times the lesser of: (a) the Executive’s\nannualized compensation based on the Executive’s annual rate of pay for the calendar year\npreceding the calendar year in which the Date of Termination occurs; or (b) the limitation on\ncompensation set forth in Code Section 401(a)(17) for the calendar year in which the Date of\nTermination occurs.\n1.11. Good Reason shall mean one or more of the following events arising without the\nconsent of the Executive:\n(a)\na material diminution in the Executive’s Base Compensation;\n(b) a material diminution in the Executive’s authority, duties or\nresponsibilities;\n(c)\na material diminution in the authority, duties or responsibilities of the\nperson to whom the Executive is required to report;\n(d) a material diminution in the budget over which the Executive retains\nauthority;\n(e)\na material change in the geographic location at which the Executive must\nperform his services; or\n(f)\nany other action or inaction that constitutes a material breach by the\nCompany of the Agreement or any other agreement under which the Executive provides\nservices.\nIn order for a separation from service to occur for Good Reason, the separation from\nservice must occur within two years following the initial existence of the event constituting Good\nReason.\n1.12. Key Employee shall mean an employee who is: (a) an officer of the Company,\nthe Bank or Trust Services whose earnings from the Company, the Bank and Trust Services\nexceed $145,000 (as adjusted under Code Section 416(i)(1) for calendar years beginning after\nDecember 31, 2007); (b) an owner of more than a five percent (5%) interest in the Company, the\nBank or Trust Services; or (c) an owner of more than a one percent (1%) interest in the\nCompany, the Bank or Trust Services whose earnings from the Company, the Bank and Trust\nServices exceed $150,000.\n1.13. Notice of Termination shall mean the notice provided pursuant to Section 3.\n1.14. Trust Services shall mean Bar Harbor Trust Services.\n2.\nSEVERANCE BENEFITS.\nIn the event that: (a) the Employer separates the Executive's service other than as a result of\nDisability and other than for Cause, or the Executive separates his or her service for Good Reason; and (b) the\nExecutive's separation from service occurs in anticipation of or within one year after a Change in Control, then the\nEmployer shall pay the Executive the severance benefits described in this Section 2. The Executive's separation\nfrom service shall be deemed to be in anticipation of a Change in Control if it occurs within the twelve (12) month\nperiod prior to the occurrence of the Change in Control. Notwithstanding the foregoing, if the payment of the\nseverance benefits would result in an excess parachute payment as defined under Code Section 280G, then the\namount of the severance benefits to be paid to the Executive shall be reduced to an amount equal to the maximum\ndollar amount that can be paid to the executive without causing the payment of an excess parachute payment.\nThe severance benefits described in this Section 2 shall equal the following:\n(a) The Executive shall receive a severance payment equal to 1.0 times the\nExecutive’s Base Compensation, determined as of the Date of Termination.\n(i)\nSubject to the provisions of Section 2(a)(ii), the Executive’s severance\npayment shall be paid in lump sum on the first day of the month following the Executive’s Date of\nTermination, less any applicable tax withholdings.\n(ii) Notwithstanding the provisions of Section 2(a)(i), if the Executive\nis a Key Employee on the Executive’s Date of Termination and any portion of the\nseverance payment is greater than the Exemption Amount and not eligible for any\nother exemption from Section 409A of the Code , then such portion of the\nseverance payment shall be paid in a lump sum on the first day of the seventh\nmonth following the Executive’s Date of Termination.\n(b) The Executive and his or her dependents shall continue to be eligible to\nreceive the same medical, health, dental, vision, and life insurance benefits which the\nExecutive is eligible to receive on the Date of Termination. The Executive shall be\nrequired to make the same premium contributions that he or she was required to make\nimmediately prior to the Date of Termination. The ability of the Executive and his or her\ndependents to receive such benefits shall continue until the twelve month anniversary of\nthe Executive’s Date of Termination.\n(c) In the event of a Change in Control, all stock options granted but\nunexercised under the Bar Harbor Bankshares and Subsidiaries Incentive Stock Option\nPlan of 2000, The Bar Harbor Bankshares and Subsidiaries Equity Incentive Plan of\n2009, or any other equity plan shall become 100% vested immediately prior to such\nChange in Control. These grants will remain subject to all of the other terms and\nconditions in the Bar Harbor Bankshares and Subsidiaries Incentive Stock Option Plan\nof 2000, the Bar Harbor Bankshares and Subsidiaries Equity Incentive Plan of 2009, or\nany other equity plan.\nThe Executive shall not be required to mitigate the amount of any severance benefits\ndescribed in this Section 2 by seeking other employment.\n3. NOTICE OF TERMINATION.\nAny separation of the Executive's service by the Employer due to Disability or for Cause,\nor by the Executive due to Good Reason, shall be communicated by written Notice of\nTermination to the other party. A Notice of Termination must indicate the specific provisions in\nthis Agreement which are relied upon as the basis for the separation of the Executive's service,\nand must also set forth in reasonable detail the facts and circumstances claimed to provide the\nbasis for such separation from service under the provisions so indicated.\nNotwithstanding the above, in order for the Executive to separate from service with the\nEmployer for Good Reason, the Executive must provide the Notice of Termination to the\nEmployer no later than ninety (90) days after the date of the initial occurrence of the condition or\nconditions alleged to give rise to Good Reason. In addition, the Executive must provide the\nEmployer a period of at least thirty (30) days during which the Employer can remedy the\ncondition or conditions alleged to give rise to Good Reason and not be required to pay the\namounts described in Section 2.\n4.\nLOSS OF SEVERANCE BENEFITS.\nIf the Employer shall terminate the Executive's service due to Disability or for Cause, or\nif the Executive shall terminate his or her service other than for Good Reason, or if the Executive\nshall die, then the Executive shall have no right to receive any severance benefits under this\nAgreement.\n5.\nNO OTHER BENEFITS PAYABLE.\n(a) If the Executive is entitled to receive the severance benefits described in Section\n2 of this Agreement, he or she shall not be entitled to receive: (i) any severance benefits under\nthe terms of any general severance pay policy or plan of the Employer or any successor\ncompany; or (ii) any other compensation, benefits or payments under the terms of any other plan\nof, or agreement with, the Employer.\n(b) Notwithstanding the above, the Executive shall be entitled to receive any\ncompensation, benefits or payments which are specifically authorized by the terms of any plan\nof, or agreement with, the Employer to be paid in addition to the severance benefits described in\nSection 2 of this Agreement. Moreover, notwithstanding the above, the Executive shall be\nentitled to receive, in addition to the severance benefits described in Section 2 of this Agreement,\nany compensation, benefits or payments which the Executive is entitled to receive under: (i) any\nincentive compensation plan maintained by the Employer which provides for payment to a\nseparated employee of incentive compensation earned by the employee prior to his or her\nseparation from service; or (ii) any payroll plan or policy of the Employer which provides for\npayment to a separated employee of any unpaid vacation, holiday or sick pay accrued by the\nemployee prior to his or her separation from service.\n6.\nSUCCESSORS.\n(a) The Employer will require any successor (whether direct or indirect, by purchase,\nmerger, consolidation or otherwise) to all or substantially all of the business and/or assets of the\nEmployer to expressly assume and agree to perform its obligations under this Agreement in the\nsame manner and to the same extent that the Employer would be required to perform them if no\nsuch succession had taken place. Each such successor shall execute a written agreement\nevidencing its assumption of the Employer's obligations under this Agreement prior to the\neffective date of any such purchase, merger, consolidation or other transaction.\n(b) The failure of the Employer to obtain from each successor the written agreement\ndescribed in Section 6(a) shall be deemed to be a material breach of the obligations of the\nEmployer under this Agreement, and shall entitle the Executive to incur a separation from\nservice for Good Reason pursuant to Section 1.11(f).\n(c) As used in this Section 6, the Employer shall include the Company, the Bank,\nTrust Services and any successor to all or substantially all of the business and/or assets of any of\nthem (whether direct or indirect, by purchase, merger, consolidation or otherwise) which\nexecutes and delivers the written agreement described in Section 6(a) or which otherwise\nbecomes bound by all the terms and provisions of this Agreement.\n7.\nCONFIDENTIAL INFORMATION, NON-COMPETITION OBLIGATIONS, AND\nNON-SOLICITATION.\n(a) Confidential Information\nThe Executive recognizes and acknowledges that certain assets of the Employer, the\nCompany, the Bank, Trust Services, or any of their affiliates or subsidiaries constitutes\nConfidential Information.\nFor purposes hereof, the term "Confidential Information" means any and all information\nand compilations of information, in whatever form or medium (including any copies thereof),\nrelating to any part of the business of the Employer, the Company, the Bank, Trust Services or\nany of their subsidiaries or affiliates, or the business of their customers, provided to the\nExecutive, or which the Executive obtained or compiled or had obtained or compiled on his or\nher behalf, which information or compilations of information are not a matter of public record or\ngenerally known to the public, including without limitation:\n(i)\nfinancial information regarding the Employer, the Company, the Bank,\nTrust Services or any of their subsidiaries or affiliates;\n(ii) personnel data, including compensation arrangements relating to the\nExecutive or any other employees of the Employer, the Company, the Bank, Trust\nServices, or any of their subsidiaries or affiliates;\n(iii) internal plans, practices, and procedures of the Employer, the Company,\nthe Bank, Trust Services, or any of their subsidiaries or affiliates;\n(iv)\nthe names, portfolio information, investment strategies, requirements,\nlending or deposit information, or any similar information of any customers, clients, or\nprospects of the Employer, the Company, the Bank, Trust Services, or any of their\nsubsidiaries or affiliates;\n(v) business methods and marketing strategies of the Employer, the Company,\nthe Bank, Trust Services, or any of their subsidiaries or affiliates;\n(vi) any other information expressly deemed confidential by the officers and\ndirectors of the Employer, the Company, the Bank, Trust Services, or any of their\nsubsidiaries or affiliates; and\n(vii) the terms and conditions of the Agreement and any documents or\ninstruments executed in connection herewith that are not of public record.\nThe Executive shall not, without the prior written consent of the Employer, the Company,\nthe Bank, Trust Services, or any of their subsidiaries or affiliates, use or disclose, or negligently\npermit any unauthorized person to use, disclose, or gain access to, any Confidential Information.\nUpon termination of employment, the Executive hereby agrees to deliver promptly to the\nEmployer, the Company, the Bank, Trust Services, or any of their subsidiaries or affiliates all\nmemoranda, notes, records, manuals, or other documents, including all copies of such materials,\ncontaining Confidential Information, whether made or compiled by the Executive or furnished to\nhim or her from any source by virtue of the Executive’s relationship with the Employer, the\nCompany, the Bank, Trust Services, or any of their subsidiaries or affiliates.\nRegardless of the reason for his or her cessation of employment, the Executive will\nfurnish such information as may be in the Executive’s possession and cooperate with the\nEmployer, the Company, the Bank, Trust Services, or any of their subsidiaries or affiliates as\nmay reasonably be requested in connection with any claims or legal actions in which the\nEmployer, the Company, the Bank, Trust Services, or any of their subsidiaries or affiliates are or\nmay become a party. The Employer will reimburse the Executive for any reasonable out-of-\npocket expenses the Executive incurs in order to satisfy his or her obligations under this clause.\n(b) Non-Competition Obligations\nIn consideration of the covenants of the Employer contained herein, the Executive\ncovenants and agrees with the Employer that, during the "Non-Compete Period" (as hereinafter\ndefined) and within a one hundred fifty (150) "air" mile radius from Bar Harbor, Maine, the\nExecutive shall not without specific approval, directly or indirectly:\n(i)\nadvise any past, present, or future customers of the Employer to withdraw,\ncurtail, or cancel his or her or its business with the Employer; or\n(ii) cause, suggest, or induce others to call on any past, present, or future\ncustomers of the Employer.\nThe "Non-Compete Period" shall commence on the date hereof and terminate one year\nafter the cessation of the Executive’s employment with the Employer and all of its affiliates,\nregardless of reason, whether or not pursuant to this Agreement.\n(c) Non-Solicitation of Employees\nWhile employed by the Employer, and for one year following cessation of his or her\nemployment with the Employer and all of its affiliates for any reason, the Executive shall not,\ndirectly or indirectly, by any means or device whatsoever, for himself or herself or on behalf of,\nor in conjunction with, any other person, partnership or corporation, solicit, entice, hire, or\nattempt to hire or employ any employee of the Employer, the Company, the Bank, Trust Services\nor any of their affiliated entities.\n8.\nREFORMATION; INJUNCTIVE RELIEF.\n(a) All the parties hereto acknowledge that the parties have carefully considered the\nnature and scope of this Agreement. The activities, period and area covered by Section 7 are\nexpressly acknowledged and agreed to be fair, reasonable and necessary. To the extent that any\ncovenant contained in Section 7 is held to be invalid, illegal or unenforceable because of the\nextent of activities, duration of such covenant, the geographic area covered thereby, or otherwise,\nthe parties agree that the court making such determination shall reform such covenant to include\nas much of its nature and scope as will render it enforceable and, in its reduced form, said\ncovenant shall be valid, legal and enforceable to the fullest extent of the law.\nThe invalidity or unenforceability of any provision of this Agreement, after reformation\nas provided in this Section 8, shall not affect any other provision hereof, and this Agreement\nshall be construed in all respects as if such invalid or unenforceable provision was omitted.\nFurthermore, in lieu of such illegal, invalid, or unenforceable provision, there shall be added\nautomatically as a part of this Agreement a provision as similar in terms to such illegal, invalid,\nor unenforceable provision as may be possible and be legal, valid, and enforceable.\n(b) The Executive acknowledges and agrees that, upon any breach by the Executive\nof his or her obligations under Section 7 hereof, the Employer will have no adequate remedy at\nlaw, and accordingly will be entitled to specific performance and other appropriate injunctive and\nequitable relief, notwithstanding Section 9 hereof. Nothing herein shall be construed as\nprohibiting the Employer from pursuing any other remedies available to it, including the\nrecovery of damages from the Executive.\n9.\nMEDIATION AND ARBITRATION.\nIf the Executive and the Employer have any dispute whatsoever relating to the\ninterpretation, validity or performance of this Agreement, or any other dispute arising out of this\nAgreement, every reasonable attempt will be made to resolve any differences or dispute within\nthirty (30) days of an issuance of written notice by either party to the other party.\nIf a successful resolution of any differences or dispute has not been achieved to the\nsatisfaction of both parties at the end of the thirty (30) day period, the following steps will be\nused:\nExcept as otherwise expressly provided hereunder, the parties agree that any and all\ndisputes arising out of the Executive’s employment or cessation of employment, including but\nnot limited to any dispute, controversy, or claim arising under any federal, state, or local statute,\nlaw, ordinance or regulation or under this Agreement, shall be resolved exclusively by\nAlternative Dispute Resolution described in this Agreement ("ADR"). The initiation of ADR\nshall first require mediation, and the parties agree to first try to settle any dispute through\nmediation. Mediation shall be initiated by either party by the serving of a written notice of intent\nto mediate (a "Mediation Notice") by one party upon the other. If no resolution has been\nmutually agreed through mediation within ninety (90) days of service of a Mediation Notice,\nthen and only then may the dispute be submitted to arbitration. Arbitration shall be initiated by\nthe serving of a written notice of intent to arbitrate (an "Arbitration Notice") by one party upon\nthe other. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to preclude\nthe Employer from seeking temporary or permanent injunctive relief and/or damages from a\ncourt of competent jurisdiction pursuant to Section 8 of this Agreement with respect to any\nbreach of Section 7 of this Agreement.\n(a) In the event that a party wishes to initiate ADR, a Mediation Notice must be\nserved on the other party within six months from the date on which the claim arose. If the parties\ncannot mutually agree on a mediator, then a mediator shall be selected in accordance with the\nEmployment Mediation Rules of the American Arbitration Association.\n(b) In the event that mediation is unsuccessful and arbitration is initiated, it shall be\nconducted under the National Rules of the Resolution of Employment Disputes of the American\nArbitration Association. There shall be a single arbitrator to be agreed upon by the parties,\nprovided that, if the parties are unable to agree upon a single arbitrator, each party shall name an\narbitrator and the two so named shall name a third arbitrator. The arbitration proceedings shall\nbe heard by the arbitrator(s) and the decision of the arbitrator, or the majority of the panel if one\nhas been selected, shall be final and binding on the parties. Judgment upon the arbitration award\nmay be entered in any court of competent jurisdiction. An Arbitration Notice must be served on\nthe other party within one year from the date on which the claim arose, and failure to bring such\na claim within such one-year period shall constitute a waiver of such claim and an absolute bar to\nany further proceedings in any forum with respect to it. All mediation and arbitration\nproceedings shall be conducted in Bangor, Maine, unless the parties otherwise agree in writing.\n(c) The cost of any mediation proceeding under this Section 9 shall be paid entirely\nby the Employer. The cost of any arbitration proceeding will be shared equally by the parties to\nthe dispute; provided, however, that, if the dispute is resolved in favor of the Executive, such cost\nshall be paid in full by the Employer. Each party shall be responsible for its own cost of\nrepresentation and counsel.\n10. POST-TERMINATION OBLIGATIONS .\nAll payments and benefits due to the Executive under this Agreement shall be subject to\nthe Executive's compliance with this Section 10 for one full year following the Executive's Date\nof Termination. The Executive shall, upon reasonable notice, furnish such information and\nassistance to the Employer, the Company, the Bank or Trust Services as may reasonably be\nrequired by the Employer, the Company, the Bank or Trust Services in connection with any\nlitigation in which it or any of its subsidiaries or affiliates is, or may become, a party.\n11. GENERAL PROVISIONS.\n(a) All notices required by this Agreement shall be in writing and shall be sufficiently\ngiven if delivered personally or mailed by registered mail or certified mail, return receipt\nrequested, to the parties at their then current addresses. All notices shall be deemed to have been\ngiven as of the date so delivered or mailed.\nWitness:\n_____________________________\n/s/Mark Clapp\n___________________________\n/s/William Swales\n(b) This Agreement and the plans and agreements described in Section 5(b) contain\nthe entire transaction between the parties, and there are no other representations, warranties,\nconditions or agreements relating to the subject matter thereof. This Agreement hereby\nsupersedes any prior Change in Control Agreement between the Executive and the Company.\n(c) The waiver by any party of any breach or default of any provision of this\nAgreement shall not operate or be construed as a waiver of any subsequent breach.\n(d) This Agreement may not be changed orally but only by an agreement in writing\nexecuted on behalf of the party against which enforcement of any waiver, change, modification,\nconsent or discharge is sought.\n(e) This Agreement shall be binding upon and inure to the benefit of the Employer\nand the Executive and their respective successors, assigns, heirs and legal representatives\n(including, but not limited to, any successor of the Employer described in Section 6).\n(f)\nEach of the parties agrees to execute all further instruments and documents and to\ntake all further action as the other party may reasonably request in order to effectuate the terms\nand purposes of this Agreement.\n(g) This Agreement may be executed in one or more counterparts, all of which taken\ntogether shall constitute one and the same instrument.\n(h) This Agreement shall be construed pursuant to and in accordance with the laws of\nthe State of Maine. Actions brought by the Employer under this Agreement shall be subject to\nthe exclusive jurisdiction of the state and federal courts of Maine. Both parties consent to the\npersonal jurisdiction of such courts for such actions, and agree that they may be served with\nprocess in accordance with Section 11(a). Notwithstanding anything herein to the contrary, any\npayments to the Executive, whether pursuant to this Agreement or otherwise, are subject to and\nconditioned upon their compliance with Section 18(k) of the Federal Deposit Insurance Act, §12\nU.S .C . 1828(k) and any regulations promulgated thereunder.\n(i)\nThe Executive acknowledges that he has had a full and complete opportunity to\nreview the terms, enforceability and implications of this Agreement, and that the Employer has\nnot made any representations or warranties to the Executive concerning the terms, enforceability\nand implications of this Agreement other than as are reflected in this Agreement.\n(j) Any provision of this Agreement that is susceptible to more than one\ninterpretation shall be interpreted in a manner that is consistent with this Agreement satisfying\nthe requirements of Code Section 409A.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first\nabove written.\nCOMPANY:\nBAR HARBOR BANKSHARES\nBY\n________________________________________\n/s/Peter Dodge\nPeter Dodge,\nPeter Dodge,\nIts Chairman of the Board\nWitness:\nEXECUTIVE:\nBY\n_______________________________________\n/s/Richard Maltz	EX-10 2 bhb8kmaltzhireex101.htm\nEXHIBIT 10.1\nCHANGE IN CONTROL, CONFIDENTIALITY,\nAND NONCOMPETITION AGREEMENT\nTHIS CHANGE IN CONTROL, CONFIDENTIALITY AND NONCOMPETITION\nAGREEMENT is made and entered into this 10th day of July, 2014 by and between BAR\nHARBOR BANKSHARES, a Maine corporation with its headquarters located in Bar Harbor,\nMaine (hereinafter, “the Company™), and Richard Maltz, a resident of Hampden, , Maine\n(hereinafter, “the Executive").\nWITNESSETH:\nWHEREAS, Bar Harbor Bank & Trust is a wholly-owned first tier banking subsidiary of\nBar Harbor Bankshares, and Bar Harbor Trust Services is a second tier non-depository trust\ncompany subsidiary of Bar Harbor Bankshares; and\nWHEREAS, the Executive is an employee of the Employer; and\nWHEREAS, the Employer wishes to retain the services of the Executive by providing the\nassurances contained herein.\nNOW, THEREFORE, the parties hereto do hereby agree as follows:\n1. DEFINTIONS.\n1.1.  Bank shall mean Bar Harbor Bank & Trust.\n1.2.  Base Compensation shall mean the annual base salary payable by the Employer to\nthe Executive, excluding any bonuses, incentive compensation and other forms of additional\ncompensation.\n1.3 Cause shall be deemed to exist only in the event the Executive is convicted by a\ncourt of competent jurisdiction of a felony involving dishonesty or fraud on the part of the\nExecutive in his or her relationship with the Employer.\n1.4.  Change in Control shall mean the occurrence of any one of the following events:\n(a) Any person, including a group (as such term is used in Section 13(d) of\nthe Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes the\nbeneficial owner (as determined pursuant to Rule 13d-3 under the Exchange Act),\ndirectly or indirectly, of securities of Bar Harbor Bankshares representing more than fifty\npercent (50%) of the combined voting power of Bar Harbor Bankshares' then outstanding\nsecurities, other than as a result of an issuance of securities initiated by Bar Harbor\nBankshares in the ordinary course of its business; or\n(b) Bar Harbor Bankshares is party to a Business Combination (as hereinafter\ndefined) unless, following consummation of the Business Combination, more than fifty\npercent (50%) of the outstanding voting securities of the resulting entity are beneficially\nowned, directly or indirectly, by the holders of Bar Harbor Bankshares' outstanding\nvoting securities immediately prior to the Business Combination in substantially the same\nproportions as those existing immediately prior to the Business Combination; or\n(©) The stockholders of Bar Harbor Bankshares approve a plan of complete\nliquidation of Bar Harbor Bankshares or an agreement for the sale or disposition by Bar\nHarbor Bankshares of all or substantially all of Bar Harbor Bankshares' assets to another\nperson or entity that is not a wholly owned subsidiary of Bar Harbor Bankshares.\nFor purposes of this Section 1.4, a Business Combination means any cash tender or\nexchange offer, merger or other business combination, sale of stock, or sale of all or substantially\nall of the assets, or any combination of the foregoing transactions.\nFor purposes of this Section 1.4, a Change in Control shall exclude any internal corporate\nchange, reorganization or other such event, which occurred prior to or may occur following the\ndate of this Agreement.\n1.5.  Code shall mean the Internal Revenue Code of 1986, as amended, and as it may\nbe amended from time to time, together with the rules and regulations promulgated under such\ncode.\n1.6.  Company shall mean Bar Harbor Bankshares.\n1.7.  Date of Termination shall mean:\n(a) If the Executive incurs a separation from service for Disability, thirty (30)\ndays after Notice of Termination for Disability is given by the Employer to the Executive\nand the Executive shall not have returned to the performance of his duties on a full-time\nbasis during such thirty (30) day period;\n(b) If the Executive's service is separated by the Employer for Cause or by the\nExecutive for Good Reason, the date on which the Executive separates from service with\nthe Employer; and\n(0 If the Executive incurs a separation from service for any other reason, the\ndate on which the Executive incurs a separation from service with the Employer.\nWhether the Executive has incurred a separation from service is determined based on\nwhether the facts and circumstances indicate that the Employer and the Executive reasonably\nanticipated that no further services would be performed after a certain date.\n1.8.  Disability shall mean a condition: (a) which causes the Executive to be unable to\nengage in any substantial gainful activity by reason of any medically determinable physical or\nmental impairment which can be expected to result in death or which can be expected to last for\na continuous period of not less than twelve months; or (b) which results in the Executive\nreceiving, by reason of any medically determinable physical or mental impairment which can be\nexpected to result in death or which can be expected to last for a continuous period of not less\nthan twelve months, income replacement benefits for a period of not less than three months\nunder an accident and health plan covering employees of the Employer. Disability shall be\ndeemed to exist only when the disability has been certified to the Board of Directors of the\nCompany by a licensed physician approved by the Board of Directors of the Company.\n1.9. Employer shall mean the Company, the Bank or Trust Services (whichever entity\nis the employer of the Executive).\n1.10. Exemption Amount shall mean two times the lesser of: (a) the Executive’s\nannualized compensation based on the Executive’s annual rate of pay for the calendar year\npreceding the calendar year in which the Date of Termination occurs; or (b) the limitation on\ncompensation set forth in Code Section 401(a)(17) for the calendar year in which the Date of\nTermination occurs.\n1.11. Good Reason shall mean one or more of the following events arising without the\nconsent of the Executive:\n(a) a material diminution in the Executive’s Base Compensation;\n(b) a material diminution in the Executive’s authority, duties or\nresponsibilities;\n(0 a material diminution in the authority, duties or responsibilities of the\nperson to whom the Executive is required to report;\n(d) a material diminution in the budget over which the Executive retains\nauthority;\n(e) a material change in the geographic location at which the Executive must\nperform his services; or\nH any other action or inaction that constitutes a material breach by the\nCompany of the Agreement or any other agreement under which the Executive provides\nservices.\nIn order for a separation from service to occur for Good Reason, the separation from\nservice must occur within two years following the initial existence of the event constituting Good\nReason.\n1.12. Key Employee shall mean an employee who is: (a) an officer of the Company,\nthe Bank or Trust Services whose earnings from the Company, the Bank and Trust Services\nexceed $145,000 (as adjusted under Code Section 416(i)(1) for calendar years beginning after\nDecember 31, 2007); (b) an owner of more than a five percent (5%) interest in the Company, the\nBank or Trust Services; or (c) an owner of more than a one percent (1%) interest in the\nCompany, the Bank or Trust Services whose earnings from the Company, the Bank and Trust\nServices exceed $150,000.\n1.13. Notice of Termination shall mean the notice provided pursuant to Section 3.\n1.14. Trust Services shall mean Bar Harbor Trust Services.\n2. SEVERANCE BENEFITS.\nIn the event that: (a) the Employer separates the Executive's service other than as a result of\nDisability and other than for Cause, or the Executive separates his or her service for Good Reason; and (b) the\nExecutive's separation from service occurs in anticipation of or within one year after a Change in Control, then the\nEmployer shall pay the Executive the severance benefits described in this Section 2. The Executive's separation\nfrom service shall be deemed to be in anticipation of a Change in Control if it occurs within the twelve (12) month\nperiod prior to the occurrence of the Change in Control. Notwithstanding the foregoing, if the payment of the\nseverance benefits would result in an excess parachute payment as defined under Code Section 280G, then the\namount of the severance benefits to be paid to the Executive shall be reduced to an amount equal to the maximum\ndollar amount that can be paid to the executive without causing the payment of an excess parachute payment.\nThe severance benefits described in this Section 2 shall equal the following:\n(a) The Executive shall receive a severance payment equal to 1.0 times the\nExecutive’s Base Compensation, determined as of the Date of Termination.\n(i) Subject to the provisions of Section 2(a)(ii), the Executive’s severance\npayment shall be paid in lump sum on the first day of the month following the Executive’s Date of\nTermination, less any applicable tax withholdings.\n(ii) Notwithstanding the provisions of Section 2(a)(i), if the Executive\nis a Key Employee on the Executive’s Date of Termination and any portion of the\nseverance payment is greater than the Exemption Amount and not eligible for any\nother exemption from Section 409A of the Code , then such portion of the\nseverance payment shall be paid in a lump sum on the first day of the seventh\nmonth following the Executive’s Date of Termination.\n(b) The Executive and his or her dependents shall continue to be eligible to\nreceive the same medical, health, dental, vision, and life insurance benefits which the\nExecutive is eligible to receive on the Date of Termination. The Executive shall be\nrequired to make the same premium contributions that he or she was required to make\nimmediately prior to the Date of Termination. The ability of the Executive and his or her\ndependents to receive such benefits shall continue until the twelve month anniversary of\nthe Executive’s Date of Termination.\n(©) In the event of a Change in Control, all stock options granted but\nunexercised under the Bar Harbor Bankshares and Subsidiaries Incentive Stock Option\nPlan of 2000, The Bar Harbor Bankshares and Subsidiaries Equity Incentive Plan of\n2009, or any other equity plan shall become 100% vested immediately prior to such\nChange in Control. These grants will remain subject to all of the other terms and\nconditions in the Bar Harbor Bankshares and Subsidiaries Incentive Stock Option Plan\nof 2000, the Bar Harbor Bankshares and Subsidiaries Equity Incentive Plan of 2009, or\nany other equity plan.\nThe Executive shall not be required to mitigate the amount of any severance benefits\ndescribed in this Section 2 by seeking other employment.\n3. NOTICE OF TERMINATION.\nAny separation of the Executive's service by the Employer due to Disability or for Cause,\nor by the Executive due to Good Reason, shall be communicated by written Notice of\nTermination to the other party. A Notice of Termination must indicate the specific provisions in\nthis Agreement which are relied upon as the basis for the separation of the Executive's service,\nand must also set forth in reasonable detail the facts and circumstances claimed to provide the\nbasis for such separation from service under the provisions so indicated.\nNotwithstanding the above, in order for the Executive to separate from service with the\nEmployer for Good Reason, the Executive must provide the Notice of Termination to the\nEmployer no later than ninety (90) days after the date of the initial occurrence of the condition or\nconditions alleged to give rise to Good Reason. In addition, the Executive must provide the\nEmployer a period of at least thirty (30) days during which the Employer can remedy the\ncondition or conditions alleged to give rise to Good Reason and not be required to pay the\namounts described in Section 2.\n4. LOSS OF SEVERANCE BENEFITS.\nIf the Employer shall terminate the Executive's service due to Disability or for Cause, or\nif the Executive shall terminate his or her service other than for Good Reason, or if the Executive\nshall die, then the Executive shall have no right to receive any severance benefits under this\nAgreement.\n5. NO OTHER BENEFITS PAYABLE.\n(a) If the Executive is entitled to receive the severance benefits described in Section\n2 of this Agreement, he or she shall not be entitled to receive: (i) any severance benefits under\nthe terms of any general severance pay policy or plan of the Employer or any successor\ncompany; or (ii) any other compensation, benefits or payments under the terms of any other plan\nof, or agreement with, the Employer.\n(b) Notwithstanding the above, the Executive shall be entitled to receive any\ncompensation, benefits or payments which are specifically authorized by the terms of any plan\nof, or agreement with, the Employer to be paid in addition to the severance benefits described in\nSection 2 of this Agreement. Moreover, notwithstanding the above, the Executive shall be\nentitled to receive, in addition to the severance benefits described in Section 2 of this Agreement,\nany compensation, benefits or payments which the Executive is entitled to receive under: (i) any\nincentive compensation plan maintained by the Employer which provides for payment to a\nseparated employee of incentive compensation earned by the employee prior to his or her\nseparation from service; or (ii) any payroll plan or policy of the Employer which provides for\npayment to a separated employee of any unpaid vacation, holiday or sick pay accrued by the\nemployee prior to his or her separation from service.\n6. SUCCESSORS.\n(a) The Employer will require any successor (whether direct or indirect, by purchase,\nmerger, consolidation or otherwise) to all or substantially all of the business and/or assets of the\nEmployer to expressly assume and agree to perform its obligations under this Agreement in the\nsame manner and to the same extent that the Employer would be required to perform them if no\nsuch succession had taken place. Each such successor shall execute a written agreement\nevidencing its assumption of the Employer's obligations under this Agreement prior to the\neffective date of any such purchase, merger, consolidation or other transaction.\n(b) The failure of the Employer to obtain from each successor the written agreement\ndescribed in Section 6(a) shall be deemed to be a material breach of the obligations of the\nEmployer under this Agreement, and shall entitle the Executive to incur a separation from\nservice for Good Reason pursuant to Section 1.11(f).\n() As used in this Section 6, the Employer shall include the Company, the Bank,\nTrust Services and any successor to all or substantially all of the business and/or assets of any of\nthem (whether direct or indirect, by purchase, merger, consolidation or otherwise) which\nexecutes and delivers the written agreement described in Section 6(a) or which otherwise\nbecomes bound by all the terms and provisions of this Agreement.\n7. CONFIDENTIAL INFORMATION, NON-COMPETITION OBLIGATIONS, AND\nNON-SOLICITATION.\n(a) Confidential Information\nThe Executive recognizes and acknowledges that certain assets of the Employer, the\nCompany, the Bank, Trust Services, or any of their affiliates or subsidiaries constitutes\nConfidential Information.\nFor purposes hereof, the term "Confidential Information" means any and all information\nand compilations of information, in whatever form or medium (including any copies thereof),\nrelating to any part of the business of the Employer, the Company, the Bank, Trust Services or\nany of their subsidiaries or affiliates, or the business of their customers, provided to the\nExecutive, or which the Executive obtained or compiled or had obtained or compiled on his or\nher behalf, which information or compilations of information are not a matter of public record or\ngenerally known to the public, including without limitation:\n1) financial information regarding the Employer, the Company, the Bank,\nTrust Services or any of their subsidiaries or affiliates;\n(ii) personnel data, including compensation arrangements relating to the\nExecutive or any other employees of the Employer, the Company, the Bank, Trust\nServices, or any of their subsidiaries or affiliates;\n(iii)  internal plans, practices, and procedures of the Employer, the Company,\nthe Bank, Trust Services, or any of their subsidiaries or affiliates;\n(iv)  the names, portfolio information, investment strategies, requirements,\nlending or deposit information, or any similar information of any customers, clients, or\nprospects of the Employer, the Company, the Bank, Trust Services, or any of their\nsubsidiaries or affiliates;\nv) business methods and marketing strategies of the Employer, the Company,\nthe Bank, Trust Services, or any of their subsidiaries or affiliates;\n(vi)  any other information expressly deemed confidential by the officers and\ndirectors of the Employer, the Company, the Bank, Trust Services, or any of their\nsubsidiaries or affiliates; and\n(vii)  the terms and conditions of the Agreement and any documents or\ninstruments executed in connection herewith that are not of public record.\nThe Executive shall not, without the prior written consent of the Employer, the Company,\nthe Bank, Trust Services, or any of their subsidiaries or affiliates, use or disclose, or negligently\npermit any unauthorized person to use, disclose, or gain access to, any Confidential Information.\nUpon termination of employment, the Executive hereby agrees to deliver promptly to the\nEmployer, the Company, the Bank, Trust Services, or any of their subsidiaries or affiliates all\nmemoranda, notes, records, manuals, or other documents, including all copies of such materials,\ncontaining Confidential Information, whether made or compiled by the Executive or furnished to\nhim or her from any source by virtue of the Executive’s relationship with the Employer, the\nCompany, the Bank, Trust Services, or any of their subsidiaries or affiliates.\nRegardless of the reason for his or her cessation of employment, the Executive will\nfurnish such information as may be in the Executive’s possession and cooperate with the\nEmployer, the Company, the Bank, Trust Services, or any of their subsidiaries or affiliates as\nmay reasonably be requested in connection with any claims or legal actions in which the\nEmployer, the Company, the Bank, Trust Services, or any of their subsidiaries or affiliates are or\nmay become a party. The Employer will reimburse the Executive for any reasonable out-of-\npocket expenses the Executive incurs in order to satisfy his or her obligations under this clause.\n(b) Non-Competition Obligations\nIn consideration of the covenants of the Employer contained herein, the Executive\ncovenants and agrees with the Employer that, during the "Non-Compete Period" (as hereinafter\ndefined) and within a one hundred fifty (150) "air" mile radius from Bar Harbor, Maine, the\nExecutive shall not without specific approval, directly or indirectly:\n1) advise any past, present, or future customers of the Employer to withdraw,\ncurtail, or cancel his or her or its business with the Employer; or\n(ii) cause, suggest, or induce others to call on any past, present, or future\ncustomers of the Employer.\nThe "Non-Compete Period" shall commence on the date hereof and terminate one year\nafter the cessation of the Executive’s employment with the Employer and all of its affiliates,\nregardless of reason, whether or not pursuant to this Agreement.\n(©) Non-Solicitation of Employees\nWhile employed by the Employer, and for one year following cessation of his or her\nemployment with the Employer and all of its affiliates for any reason, the Executive shall not,\ndirectly or indirectly, by any means or device whatsoever, for himself or herself or on behalf of,\nor in conjunction with, any other person, partnership or corporation, solicit, entice, hire, or\nattempt to hire or employ any employee of the Employer, the Company, the Bank, Trust Services\nor any of their affiliated entities.\n8. REFORMATION; INJUNCTIVE RELIEF.\n(a) All the parties hereto acknowledge that the parties have carefully considered the\nnature and scope of this Agreement. The activities, period and area covered by Section 7 are\nexpressly acknowledged and agreed to be fair, reasonable and necessary. To the extent that any\ncovenant contained in Section 7 is held to be invalid, illegal or unenforceable because of the\nextent of activities, duration of such covenant, the geographic area covered thereby, or otherwise,\nthe parties agree that the court making such determination shall reform such covenant to include\nas much of its nature and scope as will render it enforceable and, in its reduced form, said\ncovenant shall be valid, legal and enforceable to the fullest extent of the law.\nThe invalidity or unenforceability of any provision of this Agreement, after reformation\nas provided in this Section 8, shall not affect any other provision hereof, and this Agreement\nshall be construed in all respects as if such invalid or unenforceable provision was omitted.\nFurthermore, in lieu of such illegal, invalid, or unenforceable provision, there shall be added\nautomatically as a part of this Agreement a provision as similar in terms to such illegal, invalid,\nor unenforceable provision as may be possible and be legal, valid, and enforceable.\n(b) The Executive acknowledges and agrees that, upon any breach by the Executive\nof his or her obligations under Section 7 hereof, the Employer will have no adequate remedy at\nlaw, and accordingly will be entitled to specific performance and other appropriate injunctive and\nequitable relief, notwithstanding Section 9 hereof. Nothing herein shall be construed as\nprohibiting the Employer from pursuing any other remedies available to it, including the\nrecovery of damages from the Executive.\n9. MEDIATION AND ARBITRATION.\nIf the Executive and the Employer have any dispute whatsoever relating to the\ninterpretation, validity or performance of this Agreement, or any other dispute arising out of this\nAgreement, every reasonable attempt will be made to resolve any differences or dispute within\nthirty (30) days of an issuance of written notice by either party to the other party.\nIf a successful resolution of any differences or dispute has not been achieved to the\nsatisfaction of both parties at the end of the thirty (30) day period, the following steps will be\nused:\nExcept as otherwise expressly provided hereunder, the parties agree that any and all\ndisputes arising out of the Executive’s employment or cessation of employment, including but\nnot limited to any dispute, controversy, or claim arising under any federal, state, or local statute,\nlaw, ordinance or regulation or under this Agreement, shall be resolved exclusively by\nAlternative Dispute Resolution described in this Agreement ("ADR"). The initiation of ADR\nshall first require mediation, and the parties agree to first try to settle any dispute through\nmediation. Mediation shall be initiated by either party by the serving of a written notice of intent\nto mediate (a "Mediation Notice") by one party upon the other. If no resolution has been\nmutually agreed through mediation within ninety (90) days of service of a Mediation Notice,\nthen and only then may the dispute be submitted to arbitration. Arbitration shall be initiated by\nthe serving of a written notice of intent to arbitrate (an "Arbitration Notice") by one party upon\nthe other. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to preclude\nthe Employer from seeking temporary or permanent injunctive relief and/or damages from a\ncourt of competent jurisdiction pursuant to Section 8 of this Agreement with respect to any\nbreach of Section 7 of this Agreement.\n(a) In the event that a party wishes to initiate ADR, a Mediation Notice must be\nserved on the other party within six months from the date on which the claim arose. If the parties\ncannot mutually agree on a mediator, then a mediator shall be selected in accordance with the\nEmployment Mediation Rules of the American Arbitration Association.\n(b) In the event that mediation is unsuccessful and arbitration is initiated, it shall be\nconducted under the National Rules of the Resolution of Employment Disputes of the American\nArbitration Association. There shall be a single arbitrator to be agreed upon by the parties,\nprovided that, if the parties are unable to agree upon a single arbitrator, each party shall name an\narbitrator and the two so named shall name a third arbitrator. The arbitration proceedings shall\nbe heard by the arbitrator(s) and the decision of the arbitrator, or the majority of the panel if one\nhas been selected, shall be final and binding on the parties. Judgment upon the arbitration award\nmay be entered in any court of competent jurisdiction. An Arbitration Notice must be served on\nthe other party within one year from the date on which the claim arose, and failure to bring such\na claim within such one-year period shall constitute a waiver of such claim and an absolute bar to\nany further proceedings in any forum with respect to it. All mediation and arbitration\nproceedings shall be conducted in Bangor, Maine, unless the parties otherwise agree in writing.\n(©) The cost of any mediation proceeding under this Section 9 shall be paid entirely\nby the Employer. The cost of any arbitration proceeding will be shared equally by the parties to\nthe dispute; provided, however, that, if the dispute is resolved in favor of the Executive, such cost\nshall be paid in full by the Employer. Each party shall be responsible for its own cost of\nrepresentation and counsel.\n10. POST-TERMINATION OBLIGATIONS.\nAll payments and benefits due to the Executive under this Agreement shall be subject to\nthe Executive's compliance with this Section 10 for one full year following the Executive's Date\nof Termination. The Executive shall, upon reasonable notice, furnish such information and\nassistance to the Employer, the Company, the Bank or Trust Services as may reasonably be\nrequired by the Employer, the Company, the Bank or Trust Services in connection with any\nlitigation in which it or any of its subsidiaries or affiliates is, or may become, a party.\n11. GENERAL PROVISIONS.\n(a) All notices required by this Agreement shall be in writing and shall be sufficiently\ngiven if delivered personally or mailed by registered mail or certified mail, return receipt\nrequested, to the parties at their then current addresses. All notices shall be deemed to have been\ngiven as of the date so delivered or mailed.\n(b) This Agreement and the plans and agreements described in Section 5(b) contain\nthe entire transaction between the parties, and there are no other representations, warranties,\nconditions or agreements relating to the subject matter thereof. This Agreement hereby\nsupersedes any prior Change in Control Agreement between the Executive and the Company.\n(©) The waiver by any party of any breach or default of any provision of this\nAgreement shall not operate or be construed as a waiver of any subsequent breach.\n(d) This Agreement may not be changed orally but only by an agreement in writing\nexecuted on behalf of the party against which enforcement of any waiver, change, modification,\nconsent or discharge is sought.\n(e) This Agreement shall be binding upon and inure to the benefit of the Employer\nand the Executive and their respective successors, assigns, heirs and legal representatives\n(including, but not limited to, any successor of the Employer described in Section 6).\nH Each of the parties agrees to execute all further instruments and documents and to\ntake all further action as the other party may reasonably request in order to effectuate the terms\nand purposes of this Agreement.\n(8 This Agreement may be executed in one or more counterparts, all of which taken\ntogether shall constitute one and the same instrument.\n(h) This Agreement shall be construed pursuant to and in accordance with the laws of\nthe State of Maine. Actions brought by the Employer under this Agreement shall be subject to\nthe exclusive jurisdiction of the state and federal courts of Maine. Both parties consent to the\npersonal jurisdiction of such courts for such actions, and agree that they may be served with\nprocess in accordance with Section 11(a). Notwithstanding anything herein to the contrary, any\npayments to the Executive, whether pursuant to this Agreement or otherwise, are subject to and\nconditioned upon their compliance with Section 18(k) of the Federal Deposit Insurance Act, §12\nU.S.C. 1828(k) and any regulations promulgated thereunder.\n1) The Executive acknowledges that he has had a full and complete opportunity to\nreview the terms, enforceability and implications of this Agreement, and that the Employer has\nnot made any representations or warranties to the Executive concerning the terms, enforceability\nand implications of this Agreement other than as are reflected in this Agreement.\nG Any provision of this Agreement that is susceptible to more than one\ninterpretation shall be interpreted in a manner that is consistent with this Agreement satisfying\nthe requirements of Code Section 409A.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first\nabove written.\n \n \nWitness: — COMPANY:\nBAR HARBOR BANKSHARES\n/s/Mark Clapp BY\n/s/Peter Dodge\nPeter Dodge,\nIts Chairman of the Board\nWitness: —  EXECUTIVE:\n/s/William Swales BY\n \n/s/Richard Maltz\n	EX-10 2 bhb8kmaltzhireex101.htm\nEXHIBIT 10.1\nCHANGE IN CONTROL, CONFIDENTIALITY,\nAND NONCOMPETITION AGREEMENT\nTHIS CHANGE IN CONTROL, CONFIDENTIALITY AND NONCOMPETITION\nAGREEMENT is made and entered into this 10th day of July, 2014 by and between BAR\nHARBOR BANKSHARES, a Maine corporation with its headquarters located in Bar Harbor,\nMaine (hereinafter, "the Company"), and Richard Maltz, a resident of Hampden, Maine\n(hereinafter, "the Executive").\nE S S E T H:\nWHEREAS, Bar Harbor Bank & Trust is a wholly-owned first tier banking subsidiary of\nBar Harbor Bankshares, and Bar Harbor Trust Services is a second tier non-depository trust\ncompany subsidiary of Bar Harbor Bankshares; and\nWHEREAS, the Executive is an employee of the Employer; and\nWHEREAS, the Employer wishes to retain the services of the Executive by providing the\nassurances contained herein.\nNOW, THEREFORE, the parties hereto do hereby agree as follows:\n1.\nDEFINTIONS.\n1.1.\nBank shall mean Bar Harbor Bank & Trust.\n1.2. Base Compensation shall mean the annual base salary payable by the Employer to\nthe Executive, excluding any bonuses, incentive compensation and other forms of additional\ncompensation.\n1.3 Cause shall be deemed to exist only in the event the Executive is convicted by a\ncourt of competent jurisdiction of a felony involving dishonesty or fraud on the part of the\nExecutive in his or her relationship with the Employer.\n1.4. Change in Control shall mean the occurrence of any one of the following events:\n(a)\nAny person, including a group (as such term is used in Section 13(d) of\nthe Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes the\nbeneficial owner (as determined pursuant to Rule 13d-3 under the Exchange Act),\ndirectly or indirectly, of securities of Bar Harbor Bankshares representing more than fifty\npercent (50%) of the combined voting power of Bar Harbor Bankshares' then outstanding\nsecurities, other than as a result of an issuance of securities initiated by Bar Harbor\nBankshares in the ordinary course of its business; or\n(b)\nBar Harbor Bankshares is party to a Business Combination (as hereinafter\ndefined) unless, following consummation of the Business Combination, more than fifty\npercent (50%) of the outstanding voting securities of the resulting entity are beneficially\nowned, directly or indirectly, by the holders of Bar Harbor Bankshares' outstanding\nvoting securities immediately prior to the Business Combination in substantially the same\nproportions as those existing immediately prior to the Business Combination; or\n(c) The stockholders of Bar Harbor Bankshares approve a plan of complete\nliquidation of Bar Harbor Bankshares or an agreement for the sale or disposition by Bar\nHarbor Bankshares of all or substantially all of Bar Harbor Bankshares' assets to another\nperson or entity that is not a wholly owned subsidiary of Bar Harbor Bankshares.\nFor purposes of this Section 1.4, a Business Combination means any cash tender or\nexchange offer, merger or other business combination, sale of stock, or sale of all or substantially\nall of the assets, or any combination of the foregoing transactions.\nFor purposes of this Section 1.4, a Change in Control shall exclude any internal corporate\nchange, reorganization or other such event, which occurred prior to or may occur following the\ndate of this Agreement.\n1.5. Code shall mean the Internal Revenue Code of 1986, as amended, and as it may\nbe amended from time to time, together with the rules and regulations promulgated under such\ncode.\n1.6.\nCompany shall mean Bar Harbor Bankshares.\n1.7.\nDate of Termination shall mean:\n(a)\nIf the Executive incurs a separation from service for Disability, thirty (30)\ndays after Notice of Termination for Disability is given by the Employer to the Executive\nand the Executive shall not have returned to the performance of his duties on a full-time\nbasis during such thirty (30) day period;\n(b) If the Executive's service is separated by the Employer for Cause or by the\nExecutive for Good Reason, the date on which the Executive separates from service with\nthe Employer; and\n(c)\nIf the Executive incurs a separation from service for any other reason, the\ndate on which the Executive incurs a separation from service with the Employer.\nWhether the Executive has incurred a separation from service is determined based on\nwhether the facts and circumstances indicate that the Employer and the Executive reasonably\nanticipated that no further services would be performed after a certain date.\n1.8.\nDisability shall mean a condition: (a) which causes the Executive to be unable\nto\nengage in any substantial gainful activity by reason of any medically determinable physical or\nmental impairment which can be expected to result in death or which can be expected to last for\na continuous period of not less than twelve months; or (b) which results in the Executive\nreceiving, by reason of any medically determinable physical or mental impairment which can be\nexpected to result in death or which can be expected to last for a continuous period of not less\nthan twelve months, income replacement benefits for a period of not less than three months\nunder an accident and health plan covering employees of the Employer. Disability shall be\ndeemed to exist only when the disability has been certified to the Board of Directors of the\nCompany by a licensed physician approved by the Board of Directors of the Company.\n1.9. Employer shall mean the Company, the Bank or Trust Services (whichever entity\nis the employer of the Executive).\n1.10. Exemption Amount shall mean two times the lesser of: (a) the Executive's\nannualized compensation based on the Executive's annual rate of pay for the calendar year\npreceding the calendar year in which the Date of Termination occurs; or (b) the limitation on\ncompensation set forth in Code Section 401(a)(17) for the calendar year in which the Date of\nTermination occurs.\n1.11. Good Reason shall mean one or more of the following events arising without the\nconsent of the Executive:\n(a)\na material diminution in the Executive's Base Compensation;\n(b)\na material diminution in the Executive's authority, duties or\nresponsibilities;\n(c)\na material diminution in the authority, duties or responsibilities of the\nperson to whom the Executive is required to report;\n(d)\na material diminution in the budget over which the Executive retains\nauthority;\n(e)\na material change in the geographic location at which the Executive must\nperform his services; or\n(f)\nany other action or inaction that constitutes a material breach by the\nCompany of the Agreement or any other agreement under which the Executive provides\nservices.\nIn order for a separation from service to occur for Good Reason, the separation from\nservice must occur within two years following the initial existence of the event constituting Good\nReason.\n1.12. Key Employee shall mean an employee who is: (a) an officer of the Company,\nthe Bank or Trust Services whose earnings from the Company, the Bank and Trust Services\nexceed $145,000 (as adjusted under Code Section 416(i)(1) for calendar years beginning after\nDecember 31, 2007); (b) an owner of more than a five percent (5%) interest in the Company, the\nBank or Trust Services; or (c) an owner of more than a one percent (1%) interest in the\nCompany, the Bank or Trust Services whose earnings from the Company, the Bank and Trust\nServices exceed $150,000.\n1.13. Notice of Termination shall mean the notice provided pursuant to Section 3.\n1.14. Trust Services shall mean Bar Harbor Trust Services.\n2.\nSEVERANCE BENEFITS.\nIn the event that: (a) the Employer separates the Executive's service other than as a result of\nDisability and other than for Cause, or the Executive separates his or her service for Good Reason; and (b) the\nExecutive's separation from service occurs in anticipation of or within one year after a Change in Control, then the\nEmployer shall pay the Executive the severance benefits described in this Section 2. The Executive's separation\nfrom service shall be deemed to be in anticipation of a Change in Control if it occurs within the twelve (12) month\nperiod prior to the occurrence of the Change in Control. Notwithstanding the foregoing, if the payment of the\nseverance benefits would result in an excess parachute payment as defined under Code Section 280G, then the\namount of the severance benefits to be paid to the Executive shall be reduced to an amount equal to the maximum\ndollar amount that can be paid to the executive without causing the payment of an excess parachute payment.\nThe severance benefits described in this Section 2 shall equal the following:\n(a)\nThe Executive shall receive a severance payment equal to 1.0 times the\nExecutive's Base Compensation determined as of the Date of Termination.\n(i)\nSubject to the provisions of Section 2(a)(ii), the Executive's severance\npayment shall be paid in lump sum on the first day of the month following the Executive's Date of\nTermination, less any applicable tax withholdings.\n(ii) Notwithstanding the provisions of Section 2(a)(i), if the Executive\nis a Key Employee on the Executive's Date of Termination and any portion of the\nseverance payment is greater than the Exemption Amount and not eligible for any\nother exemption from Section 409A of the Code then such portion of the\nseverance payment shall be paid in a lump sum on the first day of the seventh\nmonth following the Executive's Date of Termination.\n(b)\nThe Executive and his or her dependents shall continue to be eligible to\nreceive the same medical, health, dental, vision, and life insurance benefits which the\nExecutive is eligible to receive on the Date of Termination. The Executive shall be\nrequired to make the same premium contributions that he or she was required to make\nimmediately prior to the Date of Termination. The ability of the Executive and his or her\ndependents to receive such benefits shall continue until the twelve month anniversary of\nthe Executive's Date of Termination.\n(c)\nIn the event of a Change in Control, all stock options granted but\nunexercised under the Bar Harbor Bankshares and Subsidiaries Incentive Stock Option\nPlan of 2000, The Bar Harbor Bankshares and Subsidiaries Equity Incentive Plan of\n2009, or any other equity plan shall become 100% vested immediately prior to such\nChange in Control. These grants will remain subject to all of the other terms and\nconditions in the Bar Harbor Bankshares and Subsidiaries Incentive Stock Option Plan\nof 2000, the Bar Harbor Bankshares and Subsidiaries Equity Incentive Plan of 2009, or\nany other equity plan.\nThe Executive shall not be required to mitigate the amount of any severance benefits\ndescribed in this Section 2 by seeking other employment.\n3.\nNOTICE OF TERMINATION\nAny separation of the Executive's service by the Employer due to Disability or for Cause,\nor by the Executive due to Good Reason, shall be communicated by written Notice of\nTermination to the other party. A Notice of Termination must indicate the specific provisions in\nthis Agreement which are relied upon as the basis for the separation of the Executive's service,\nand must also set forth in reasonable detail the facts and circumstances claimed to provide the\nbasis for such separation from service under the provisions so indicated.\nNotwithstanding the above, in order for the Executive to separate from service with the\nEmployer for Good Reason, the Executive must provide the Notice of Termination to the\nEmployer no later than ninety (90) days after the date of the initial occurrence of the condition or\nconditions alleged to give rise to Good Reason. In addition, the Executive must provide the\nEmployer a period of at least thirty (30) days during which the Employer can remedy the\ncondition or conditions alleged to give rise to Good Reason and not be required to pay the\namounts described in Section 2.\n4.\nLOSS OF SEVERANCE BENEFITS.\nIf the Employer shall terminate the Executive's service due to Disability or for Cause, or\nif the Executive shall terminate his or her service other than for Good Reason, or if the Executive\nshall die, then the Executive shall have no right to receive any severance benefits under this\nAgreement.\n5.\nNO OTHER BENEFITS PAYABLE.\n(a)\nIf the Executive is entitled to receive the severance benefits described in Section\n2 of this Agreement, he or she shall not be entitled to receive: (i) any severance benefits under\nthe terms of any general severance pay policy or plan of the Employer or any successor\ncompany; or (ii) any other compensation, benefits or payments under the terms of any other plan\nof, or agreement with, the Employer.\n(b)\nNotwithstanding the above, the Executive shall be entitled to receive\nany\ncompensation, benefits or payments which are specifically authorized by the terms of any plan\nof,\nor agreement with, the Employer to be paid in addition to the severance benefits described in\nSection 2 of this Agreement. Moreover, notwithstanding the above, the Executive shall be\nentitled to receive, in addition to the severance benefits described in Section 2 of this Agreement,\nany compensation, benefits or payments which the Executive is entitled to receive under: (i) any\nincentive compensation plan maintained by the Employer which provides for payment to a\nseparated employee of incentive compensation earned by the employee prior to his or her\nseparation from service; or (ii) any payroll plan or policy of the Employer which provides for\npayment to a separated employee of any unpaid vacation, holiday or sick pay accrued by the\nemployee prior to his or her separation from service.\n6.\nSUCCESSORS.\n(a) The Employer will require any successor (whether direct or indirect, by purchase,\nmerger, consolidation or otherwise) to all or substantially all of the business and/or assets of the\nEmployer to expressly assume and agree to perform its obligations under this Agreement in the\nsame manner and to the same extent that the Employer would be required to perform them if no\nsuch succession had taken place. Each such successor shall execute a written agreement\nevidencing its assumption of the Employer's obligations under this Agreement prior to the\neffective date of any such purchase, merger, consolidation or other transaction.\n(b) The failure of the Employer to obtain from each successor the written agreement\ndescribed in Section 6(a) shall be deemed to be a material breach of the obligations of the\nEmployer under this Agreement, and shall entitle the Executive to incur a separation from\nservice for Good Reason pursuant to Section 1.11(f).\n(c)\nAs used in this Section 6, the Employer shall include the Company, the Bank,\nTrust Services and any successor to all or substantially all of the business and/or assets of any of\nthem (whether direct or indirect, by purchase, merger, consolidation or otherwise) which\nexecutes and delivers the written agreement described in Section 6(a) or which otherwise\nbecomes bound by all the terms and provisions of this Agreement.\n7.\nCONFIDENTIAL INFORMATION, NON-COMPETITION OBLIGATIONS, AND\nNON-SOLICITATION.\n(a)\nConfidential Information\nThe Executive recognizes and acknowledges that certain assets of the Employer, the\nCompany, the Bank, Trust Services, or any of their affiliates or subsidiaries constitutes\nConfidential Information.\nFor purposes hereof, the term "Confidential Information" means any and all information\nand compilations of information, in whatever form or medium (including any copies thereof),\nrelating to any part of the business of the Employer, the Company, the Bank, Trust Services or\nany of their subsidiaries or affiliates, or the business of their customers, provided to the\nExecutive, or which the Executive obtained or compiled or had obtained or compiled on his or\nher behalf, which information or compilations of information are not a matter of public record or\ngenerally known to the public, including without limitation:\n(i)\nfinancial information regarding the Employer, the Company, the Bank,\nTrust Services or any of their subsidiaries or affiliates;\n(ii) personnel data, including compensation arrangements relating to the\nExecutive or any other employees of the Employer, the Company, the Bank, Trust\nServices, or any of their subsidiaries or affiliates;\n(iii) internal plans, practices, and procedures of the Employer, the Company,\nthe Bank, Trust Services, or any of their subsidiaries or affiliates;\n(iv) the names, portfolio information, investment strategies, requirements,\nlending or deposit information, or any similar information of any customers, clients, or\nprospects of the Employer, the Company, the Bank, Trust Services, or any of their\nsubsidiaries or affiliates;\n(v) business methods and marketing strategies of the Employer, the Company,\nthe Bank, Trust Services, or any of their subsidiaries or affiliates;\n(vi) any other information expressly deemed confidential by the officers and\ndirectors of the Employer, the Company, the Bank, Trust Services, or any of their\nsubsidiaries or affiliates; and\n(vii) the terms and conditions of the Agreement and any documents or\ninstruments executed in connection herewith that are not of public record.\nThe Executive shall not, without the prior written consent of the Employer, the Company,\nthe\nBank, Trust Services, or any of their subsidiaries or affiliates, use or disclose, or negligently\npermit any unauthorized person to use, disclose, or gain access to, any Confidential Information.\nUpon termination of employment, the Executive hereby agrees to deliver promptly to the\nEmployer, the Company, the Bank, Trust Services, or any of their subsidiaries or affiliates all\nmemoranda, notes, records, manuals, or other documents, including all copies of such materials,\ncontaining Confidential Information, whether made or compiled by the Executive or furnished to\nhim or her from any source by virtue of the Executive's relationship with the Employer, the\nCompany, the Bank, Trust Services, or any of their subsidiaries or affiliates.\nRegardless of the reason for his or her cessation of employment, the Executive will\nfurnish such information as may be in the Executive's possession and cooperate with the\nEmployer, the Company, the Bank, Trust Services, or any of their subsidiaries or affiliates\nas\nmay reasonably be requested in connection with any claims or legal actions in which the\nEmployer, the Company, the Bank, Trust Services, or any of their subsidiaries or affiliates are or\nmay become a party. The Employer will reimburse the Executive for any reasonable out-of-\npocket expenses the Executive incurs in order to satisfy his or her obligations under this clause.\n(b)\nNon-Competition Obligations\nIn consideration of the covenants of the Employer contained herein, the Executive\ncovenants and agrees with the Employer that, during the "Non-Compete Period" (as hereinafter\ndefined) and within a one hundred fifty (150) "air" mile radius from Bar Harbor, Maine, the\nExecutive shall not without specific approval, directly or indirectly:\n(i)\nadvise any past, present, or future customers of the Employer to withdraw,\ncurtail, or cancel his or her or its business with the Employer; or\n(ii)\ncause, suggest, or induce others to call on any past, present, or future\ncustomers of the Employer.\nThe "Non-Compete Period" shall commence on the date hereof and terminate one year\nafter the cessation of the Executive's employment with the Employer and all of its affiliates,\nregardless of reason, whether or not pursuant to this Agreement.\n(c)\nNon-Solicitation of Employees\nWhile employed by the Employer, and for one year following cessation of his or her\nemployment with the Employer and all of its affiliates for any reason, the Executive shall not,\ndirectly or indirectly, by any means or device whatsoever, for himself or herself or on behalf of,\nor in conjunction with, any other person, partnership or corporation, solicit, entice, hire, or\nattempt to hire or employ any employee of the Employer, the Company, the Bank, Trust Services\nor any of their affiliated entities.\n8.\nREFORMATION; INJUNCTIVE RELIEE.\n(a)\nAll the parties hereto acknowledge that the parties have carefully considered the\nnature and scope of this Agreement. The activities, period and area covered by Section 7 are\nexpressly acknowledged and agreed to be fair, reasonable and necessary. To the extent that any\ncovenant contained in Section 7 is held to be invalid, illegal or unenforceable because of the\nextent of activities, duration of such covenant, the geographic area covered thereby, or otherwise,\nthe parties agree that the court making such determination shall reform such covenant to include\nas much of its nature and scope as will render it enforceable and, in its reduced form, said\ncovenant shall be valid, legal and enforceable to the fullest extent of the law.\nThe invalidity or unenforceability of any provision of this Agreement, after reformation\nas provided in this Section 8, shall not affect any other provision hereof, and this Agreement\nshall be construed in all respects as if such invalid or unenforceable provision was omitted.\nFurthermore, in lieu of such illegal, invalid, or unenforceable provision, there shall be added\nautomatically as a part of this Agreement a provision as similar in terms to such illegal, invalid,\nor unenforceable provision as may be possible and be legal, valid, and enforceable.\n(b) The Executive acknowledges and agrees that, upon any breach by the Executive\nof his or her obligations under Section 7 hereof, the Employer will have no adequate remedy at\nlaw, and accordingly will be entitled to specific performance and other appropriate injunctive and\nequitable relief, notwithstanding Section 9 hereof. Nothing herein shall be construed as\nprohibiting the Employer from pursuing any other remedies available to it, including the\nrecovery of damages from the Executive.\n9.\nMEDIATION AND ARBITRATION.\nIf the Executive and the Employer have any dispute whatsoever relating to the\ninterpretation, validity or performance of this Agreement, or any other dispute arising out of this\nAgreement, every reasonable attempt will be made to resolve any differences or dispute within\nthirty (30) days of an issuance of written notice by either party to the other party.\nIf a successful resolution of any differences or dispute has not been achieved to the\nsatisfaction of both parties at the end of the thirty (30) day period, the following steps will be\nused:\nExcept as otherwise expressly provided hereunder, the parties agree that any and all\ndisputes arising out of the Executive's employment or cessation of employment, including but\nnot limited to any dispute, controversy, or claim arising under any federal, state, or local statute,\nlaw, ordinance or regulation or under this Agreement, shall be resolved exclusively by\nAlternative Dispute Resolution described in this Agreement ("ADR"). The initiation of ADR\nshall first require mediation, and the parties agree to first try to settle any dispute through\nmediation. Mediation shall be initiated by either party by the serving of a written notice of intent\nto mediate (a "Mediation Notice") by one party upon the other. If no resolution has been\nmutually agreed through mediation within ninety (90) days of service of a Mediation Notice,\nthen and only then may the dispute be submitted to arbitration. Arbitration shall be initiated by\nthe serving of a written notice of intent to arbitrate (an "Arbitration Notice") by one party upon\nthe other. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to preclude\nthe Employer from seeking temporary or permanent injunctive relief and/or damages from a\ncourt of competent jurisdiction pursuant to Section 8 of this Agreement with respect to any\nbreach of Section 7 of this Agreement.\n(a) In the event that a party wishes to initiate ADR, a Mediation Notice must be\nserved on the other party within six months from the date on which the claim arose. If the parties\ncannot mutually agree on a mediator, then a mediator shall be selected in accordance with the\nEmployment Mediation Rules of the American Arbitration Association.\n(b) In the event that mediation is unsuccessful and arbitration is initiated, it shall be\nconducted under the National Rules of the Resolution of Employment Disputes of the American\nArbitration Association. There shall be a single arbitrator to be agreed upon by the parties,\nprovided that, if the parties are unable to agree upon a single arbitrator, each party shall name an\narbitrator and the two so named shall name a third arbitrator. The arbitration proceedings shall\nbe heard by the arbitrator(s) and the decision of the arbitrator, or the majority of the panel if one\nhas been selected, shall be final and binding on the parties. Judgment upon the arbitration award\nmay be entered in any court of competent jurisdiction. An Arbitration Notice must be served on\nthe other party within one year from the date on which the claim arose, and failure to bring such\na claim within such one-year period shall constitute a waiver of such claim and an absolute bar to\nany further proceedings in any forum with respect to it. All mediation and arbitration\nproceedings shall be conducted in Bangor, Maine, unless the parties otherwise agree in writing.\n(c)\nThe cost of any mediation proceeding under this Section 9 shall be paid entirely\nby the Employer. The cost of any arbitration proceeding will be shared equally by the parties to\nthe dispute; provided, however, that, if the dispute is resolved in favor of the Executive, such cost\nshall be paid in full by the Employer. Each party shall be responsible for its own cost of\nrepresentation and counsel.\n10.\nPOST-TERMINATION OBLIGATIONS.\nAll payments and benefits due to the Executive under this Agreement shall be subject to\nthe Executive's compliance with this Section 10 for one full year following the Executive's Date\nof Termination. The Executive shall, upon reasonable notice, furnish such information and\nassistance to the Employer, the Company, the Bank or Trust Services as may reasonably be\nrequired by the Employer, the Company, the Bank or Trust Services in connection with any\nlitigation in which it or any of its subsidiaries or affiliates is, or may become, a party.\n11.\nGENERAL PROVISIONS.\n(a) All notices required by this Agreement shall be in writing and shall be sufficiently\ngiven if delivered personally or mailed by registered mail or certified mail, return receipt\nrequested, to the parties at their then current addresses. All notices shall be deemed to have been\ngiven as of the date so delivered or mailed.\n(b)\nThis Agreement and the plans and agreements described in Section 5(b) contain\nthe entire transaction between the parties, and there are no other representations, warranties,\nconditions or agreements relating to the subject matter thereof. This Agreement hereby\nsupersedes any prior Change in Control Agreement between the Executive and the Company.\n(c)\nThe waiver by any party of any breach or default of any provision of this\nAgreement shall not operate or be construed as a waiver of any subsequent breach.\n(d)\nThis Agreement may not be changed orally but only by an agreement in writing\nexecuted on behalf of the party against which enforcement of any waiver, change, modification,\nconsent or discharge is sought.\n(e)\nThis Agreement shall be binding upon and inure to the benefit of the Employer\nand the Executive and their respective successors, assigns, heirs and legal representatives\n(including, but not limited to, any successor of the Employer described in Section 6).\n(f)\nEach of the parties agrees to execute all further instruments and documents and to\ntake all further action as the other party may reasonably request in order to effectuate the terms\nand purposes of this Agreement.\n(g)\nThis Agreement may be executed in one or more counterparts, all of which taken\ntogether shall constitute one and the same instrument.\n(h)\nThis Agreement shall be construed pursuant to and in accordance with the laws of\nthe State of Maine. Actions brought by the Employer under this Agreement shall be subject to\nthe exclusive jurisdiction of the state and federal courts of Maine. Both parties consent to the\npersonal jurisdiction of such courts for such actions, and agree that they may be served with\nprocess in accordance with Section 11(a). Notwithstanding anything herein to the contrary, any\npayments to the Executive, whether pursuant to this Agreement or otherwise, are subject to and\nconditioned upon their compliance with Section 18(k) of the Federal Deposit Insurance Act, $12\nU.S.C. 1828(k) and any regulations promulgated thereunder.\n(i)\nThe Executive acknowledges that he has had a full and complete opportunity to\nreview the terms, enforceability and implications of this Agreement, and that the Employer has\nnot made any representations or warranties to the Executive concerning the terms, enforceability\nand implications of this Agreement other than as are reflected in this Agreement.\n(j)\nAny provision of this Agreement that is susceptible to more than one\ninterpretation shall be interpreted in a manner that is consistent with this Agreement satisfying\nthe requirements of Code Section 409A.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first\nabove written.\nWitness: COMPANY:\nBAR HARBOR BANKSHARES\n/s/Mark Clapp\nBY\n/s/Peter Dodge\nPeter Dodge,\nPeter-Dedge,\nIts Chairman of the Board\nWitness:\nEXECUTIVE:\n/s/William Swales\nBY\n/s/Richard Maltz	EX-10 2 bhb8kmaltzhireex101.htm\nEXHIBIT 10.1\nCHANGE IN CONTROL, CONFIDENTIALITY,\nAND NONCOMPETITION AGREEMENT\nTHIS CHANGE IN CONTROL, CONFIDENTIALITY AND NONCOMPETITION\nAGREEMENT is made and entered into this 10th day of July, 2014 by and between BAR\nHARBOR BANKSHARES, a Maine corporation with its headquarters located in Bar Harbor,\nMaine (hereinafter, “the Company”), and Richard Maltz, a resident of Hampden, , Maine\n(hereinafter, “the Executive").\nWITNESSETH:\nWHEREAS, Bar Harbor Bank & Trust is a wholly-owned first tier banking subsidiary of\nBar Harbor Bankshares, and Bar Harbor Trust Services is a second tier non-depository trust\ncompany subsidiary of Bar Harbor Bankshares; and\nWHEREAS, the Executive is an employee of the Employer; and\nWHEREAS, the Employer wishes to retain the services of the Executive by providing the\nassurances contained herein.\nNOW, THEREFORE, the parties hereto do hereby agree as follows:\n1.\nDEFINTIONS.\n1.1. Bank shall mean Bar Harbor Bank & Trust.\n1.2. Base Compensation shall mean the annual base salary payable by the Employer to\nthe Executive, excluding any bonuses, incentive compensation and other forms of additional\ncompensation.\n1.3 Cause shall be deemed to exist only in the event the Executive is convicted by a\ncourt of competent jurisdiction of a felony involving dishonesty or fraud on the part of the\nExecutive in his or her relationship with the Employer.\n1.4. Change in Control shall mean the occurrence of any one of the following events:\n(a) Any person, including a group (as such term is used in Section 13(d) of\nthe Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes the\nbeneficial owner (as determined pursuant to Rule 13d-3 under the Exchange Act),\ndirectly or indirectly, of securities of Bar Harbor Bankshares representing more than fifty\npercent (50%) of the combined voting power of Bar Harbor Bankshares' then outstanding\nsecurities, other than as a result of an issuance of securities initiated by Bar Harbor\nBankshares in the ordinary course of its business; or\n(b) Bar Harbor Bankshares is party to a Business Combination (as hereinafter\ndefined) unless, following consummation of the Business Combination, more than fifty\npercent (50%) of the outstanding voting securities of the resulting entity are beneficially\nowned, directly or indirectly, by the holders of Bar Harbor Bankshares' outstanding\nvoting securities immediately prior to the Business Combination in substantially the same\nproportions as those existing immediately prior to the Business Combination; or\n(c) The stockholders of Bar Harbor Bankshares approve a plan of complete\nliquidation of Bar Harbor Bankshares or an agreement for the sale or disposition by Bar\nHarbor Bankshares of all or substantially all of Bar Harbor Bankshares' assets to another\nperson or entity that is not a wholly owned subsidiary of Bar Harbor Bankshares.\nFor purposes of this Section 1.4, a Business Combination means any cash tender or\nexchange offer, merger or other business combination, sale of stock, or sale of all or substantially\nall of the assets, or any combination of the foregoing transactions.\nFor purposes of this Section 1.4, a Change in Control shall exclude any internal corporate\nchange, reorganization or other such event, which occurred prior to or may occur following the\ndate of this Agreement.\n1.5. Code shall mean the Internal Revenue Code of 1986, as amended, and as it may\nbe amended from time to time, together with the rules and regulations promulgated under such\ncode.\n1.6. Company shall mean Bar Harbor Bankshares.\n1.7. Date of Termination shall mean:\n(a) If the Executive incurs a separation from service for Disability, thirty (30)\ndays after Notice of Termination for Disability is given by the Employer to the Executive\nand the Executive shall not have returned to the performance of his duties on a full-time\nbasis during such thirty (30) day period;\n(b) If the Executive's service is separated by the Employer for Cause or by the\nExecutive for Good Reason, the date on which the Executive separates from service with\nthe Employer; and\n(c) If the Executive incurs a separation from service for any other reason, the\ndate on which the Executive incurs a separation from service with the Employer.\nWhether the Executive has incurred a separation from service is determined based on\nwhether the facts and circumstances indicate that the Employer and the Executive reasonably\nanticipated that no further services would be performed after a certain date.\n1.8. Disability shall mean a condition: (a) which causes the Executive to be unable to\nengage in any substantial gainful activity by reason of any medically determinable physical or\nmental impairment which can be expected to result in death or which can be expected to last for\na continuous period of not less than twelve months; or (b) which results in the Executive\nreceiving, by reason of any medically determinable physical or mental impairment which can be\nexpected to result in death or which can be expected to last for a continuous period of not less\nthan twelve months, income replacement benefits for a period of not less than three months\nunder an accident and health plan covering employees of the Employer. Disability shall be\ndeemed to exist only when the disability has been certified to the Board of Directors of the\nCompany by a licensed physician approved by the Board of Directors of the Company.\n1.9. Employer shall mean the Company, the Bank or Trust Services (whichever entity\nis the employer of the Executive).\n1.10. Exemption Amount shall mean two times the lesser of: (a) the Executive’s\nannualized compensation based on the Executive’s annual rate of pay for the calendar year\npreceding the calendar year in which the Date of Termination occurs; or (b) the limitation on\ncompensation set forth in Code Section 401(a)(17) for the calendar year in which the Date of\nTermination occurs.\n1.11. Good Reason shall mean one or more of the following events arising without the\nconsent of the Executive:\n(a)\na material diminution in the Executive’s Base Compensation;\n(b) a material diminution in the Executive’s authority, duties or\nresponsibilities;\n(c)\na material diminution in the authority, duties or responsibilities of the\nperson to whom the Executive is required to report;\n(d) a material diminution in the budget over which the Executive retains\nauthority;\n(e)\na material change in the geographic location at which the Executive must\nperform his services; or\n(f)\nany other action or inaction that constitutes a material breach by the\nCompany of the Agreement or any other agreement under which the Executive provides\nservices.\nIn order for a separation from service to occur for Good Reason, the separation from\nservice must occur within two years following the initial existence of the event constituting Good\nReason.\n1.12. Key Employee shall mean an employee who is: (a) an officer of the Company,\nthe Bank or Trust Services whose earnings from the Company, the Bank and Trust Services\nexceed $145,000 (as adjusted under Code Section 416(i)(1) for calendar years beginning after\nDecember 31, 2007); (b) an owner of more than a five percent (5%) interest in the Company, the\nBank or Trust Services; or (c) an owner of more than a one percent (1%) interest in the\nCompany, the Bank or Trust Services whose earnings from the Company, the Bank and Trust\nServices exceed $150,000.\n1.13. Notice of Termination shall mean the notice provided pursuant to Section 3.\n1.14. Trust Services shall mean Bar Harbor Trust Services.\n2.\nSEVERANCE BENEFITS.\nIn the event that: (a) the Employer separates the Executive's service other than as a result of\nDisability and other than for Cause, or the Executive separates his or her service for Good Reason; and (b) the\nExecutive's separation from service occurs in anticipation of or within one year after a Change in Control, then the\nEmployer shall pay the Executive the severance benefits described in this Section 2. The Executive's separation\nfrom service shall be deemed to be in anticipation of a Change in Control if it occurs within the twelve (12) month\nperiod prior to the occurrence of the Change in Control. Notwithstanding the foregoing, if the payment of the\nseverance benefits would result in an excess parachute payment as defined under Code Section 280G, then the\namount of the severance benefits to be paid to the Executive shall be reduced to an amount equal to the maximum\ndollar amount that can be paid to the executive without causing the payment of an excess parachute payment.\nThe severance benefits described in this Section 2 shall equal the following:\n(a) The Executive shall receive a severance payment equal to 1.0 times the\nExecutive’s Base Compensation, determined as of the Date of Termination.\n(i)\nSubject to the provisions of Section 2(a)(ii), the Executive’s severance\npayment shall be paid in lump sum on the first day of the month following the Executive’s Date of\nTermination, less any applicable tax withholdings.\n(ii) Notwithstanding the provisions of Section 2(a)(i), if the Executive\nis a Key Employee on the Executive’s Date of Termination and any portion of the\nseverance payment is greater than the Exemption Amount and not eligible for any\nother exemption from Section 409A of the Code , then such portion of the\nseverance payment shall be paid in a lump sum on the first day of the seventh\nmonth following the Executive’s Date of Termination.\n(b) The Executive and his or her dependents shall continue to be eligible to\nreceive the same medical, health, dental, vision, and life insurance benefits which the\nExecutive is eligible to receive on the Date of Termination. The Executive shall be\nrequired to make the same premium contributions that he or she was required to make\nimmediately prior to the Date of Termination. The ability of the Executive and his or her\ndependents to receive such benefits shall continue until the twelve month anniversary of\nthe Executive’s Date of Termination.\n(c) In the event of a Change in Control, all stock options granted but\nunexercised under the Bar Harbor Bankshares and Subsidiaries Incentive Stock Option\nPlan of 2000, The Bar Harbor Bankshares and Subsidiaries Equity Incentive Plan of\n2009, or any other equity plan shall become 100% vested immediately prior to such\nChange in Control. These grants will remain subject to all of the other terms and\nconditions in the Bar Harbor Bankshares and Subsidiaries Incentive Stock Option Plan\nof 2000, the Bar Harbor Bankshares and Subsidiaries Equity Incentive Plan of 2009, or\nany other equity plan.\nThe Executive shall not be required to mitigate the amount of any severance benefits\ndescribed in this Section 2 by seeking other employment.\n3. NOTICE OF TERMINATION.\nAny separation of the Executive's service by the Employer due to Disability or for Cause,\nor by the Executive due to Good Reason, shall be communicated by written Notice of\nTermination to the other party. A Notice of Termination must indicate the specific provisions in\nthis Agreement which are relied upon as the basis for the separation of the Executive's service,\nand must also set forth in reasonable detail the facts and circumstances claimed to provide the\nbasis for such separation from service under the provisions so indicated.\nNotwithstanding the above, in order for the Executive to separate from service with the\nEmployer for Good Reason, the Executive must provide the Notice of Termination to the\nEmployer no later than ninety (90) days after the date of the initial occurrence of the condition or\nconditions alleged to give rise to Good Reason. In addition, the Executive must provide the\nEmployer a period of at least thirty (30) days during which the Employer can remedy the\ncondition or conditions alleged to give rise to Good Reason and not be required to pay the\namounts described in Section 2.\n4.\nLOSS OF SEVERANCE BENEFITS.\nIf the Employer shall terminate the Executive's service due to Disability or for Cause, or\nif the Executive shall terminate his or her service other than for Good Reason, or if the Executive\nshall die, then the Executive shall have no right to receive any severance benefits under this\nAgreement.\n5.\nNO OTHER BENEFITS PAYABLE.\n(a) If the Executive is entitled to receive the severance benefits described in Section\n2 of this Agreement, he or she shall not be entitled to receive: (i) any severance benefits under\nthe terms of any general severance pay policy or plan of the Employer or any successor\ncompany; or (ii) any other compensation, benefits or payments under the terms of any other plan\nof, or agreement with, the Employer.\n(b) Notwithstanding the above, the Executive shall be entitled to receive any\ncompensation, benefits or payments which are specifically authorized by the terms of any plan\nof, or agreement with, the Employer to be paid in addition to the severance benefits described in\nSection 2 of this Agreement. Moreover, notwithstanding the above, the Executive shall be\nentitled to receive, in addition to the severance benefits described in Section 2 of this Agreement,\nany compensation, benefits or payments which the Executive is entitled to receive under: (i) any\nincentive compensation plan maintained by the Employer which provides for payment to a\nseparated employee of incentive compensation earned by the employee prior to his or her\nseparation from service; or (ii) any payroll plan or policy of the Employer which provides for\npayment to a separated employee of any unpaid vacation, holiday or sick pay accrued by the\nemployee prior to his or her separation from service.\n6.\nSUCCESSORS.\n(a) The Employer will require any successor (whether direct or indirect, by purchase,\nmerger, consolidation or otherwise) to all or substantially all of the business and/or assets of the\nEmployer to expressly assume and agree to perform its obligations under this Agreement in the\nsame manner and to the same extent that the Employer would be required to perform them if no\nsuch succession had taken place. Each such successor shall execute a written agreement\nevidencing its assumption of the Employer's obligations under this Agreement prior to the\neffective date of any such purchase, merger, consolidation or other transaction.\n(b) The failure of the Employer to obtain from each successor the written agreement\ndescribed in Section 6(a) shall be deemed to be a material breach of the obligations of the\nEmployer under this Agreement, and shall entitle the Executive to incur a separation from\nservice for Good Reason pursuant to Section 1.11(f).\n(c) As used in this Section 6, the Employer shall include the Company, the Bank,\nTrust Services and any successor to all or substantially all of the business and/or assets of any of\nthem (whether direct or indirect, by purchase, merger, consolidation or otherwise) which\nexecutes and delivers the written agreement described in Section 6(a) or which otherwise\nbecomes bound by all the terms and provisions of this Agreement.\n7.\nCONFIDENTIAL INFORMATION, NON-COMPETITION OBLIGATIONS, AND\nNON-SOLICITATION.\n(a) Confidential Information\nThe Executive recognizes and acknowledges that certain assets of the Employer, the\nCompany, the Bank, Trust Services, or any of their affiliates or subsidiaries constitutes\nConfidential Information.\nFor purposes hereof, the term "Confidential Information" means any and all information\nand compilations of information, in whatever form or medium (including any copies thereof),\nrelating to any part of the business of the Employer, the Company, the Bank, Trust Services or\nany of their subsidiaries or affiliates, or the business of their customers, provided to the\nExecutive, or which the Executive obtained or compiled or had obtained or compiled on his or\nher behalf, which information or compilations of information are not a matter of public record or\ngenerally known to the public, including without limitation:\n(i)\nfinancial information regarding the Employer, the Company, the Bank,\nTrust Services or any of their subsidiaries or affiliates;\n(ii) personnel data, including compensation arrangements relating to the\nExecutive or any other employees of the Employer, the Company, the Bank, Trust\nServices, or any of their subsidiaries or affiliates;\n(iii) internal plans, practices, and procedures of the Employer, the Company,\nthe Bank, Trust Services, or any of their subsidiaries or affiliates;\n(iv)\nthe names, portfolio information, investment strategies, requirements,\nlending or deposit information, or any similar information of any customers, clients, or\nprospects of the Employer, the Company, the Bank, Trust Services, or any of their\nsubsidiaries or affiliates;\n(v) business methods and marketing strategies of the Employer, the Company,\nthe Bank, Trust Services, or any of their subsidiaries or affiliates;\n(vi) any other information expressly deemed confidential by the officers and\ndirectors of the Employer, the Company, the Bank, Trust Services, or any of their\nsubsidiaries or affiliates; and\n(vii) the terms and conditions of the Agreement and any documents or\ninstruments executed in connection herewith that are not of public record.\nThe Executive shall not, without the prior written consent of the Employer, the Company,\nthe Bank, Trust Services, or any of their subsidiaries or affiliates, use or disclose, or negligently\npermit any unauthorized person to use, disclose, or gain access to, any Confidential Information.\nUpon termination of employment, the Executive hereby agrees to deliver promptly to the\nEmployer, the Company, the Bank, Trust Services, or any of their subsidiaries or affiliates all\nmemoranda, notes, records, manuals, or other documents, including all copies of such materials,\ncontaining Confidential Information, whether made or compiled by the Executive or furnished to\nhim or her from any source by virtue of the Executive’s relationship with the Employer, the\nCompany, the Bank, Trust Services, or any of their subsidiaries or affiliates.\nRegardless of the reason for his or her cessation of employment, the Executive will\nfurnish such information as may be in the Executive’s possession and cooperate with the\nEmployer, the Company, the Bank, Trust Services, or any of their subsidiaries or affiliates as\nmay reasonably be requested in connection with any claims or legal actions in which the\nEmployer, the Company, the Bank, Trust Services, or any of their subsidiaries or affiliates are or\nmay become a party. The Employer will reimburse the Executive for any reasonable out-of-\npocket expenses the Executive incurs in order to satisfy his or her obligations under this clause.\n(b) Non-Competition Obligations\nIn consideration of the covenants of the Employer contained herein, the Executive\ncovenants and agrees with the Employer that, during the "Non-Compete Period" (as hereinafter\ndefined) and within a one hundred fifty (150) "air" mile radius from Bar Harbor, Maine, the\nExecutive shall not without specific approval, directly or indirectly:\n(i)\nadvise any past, present, or future customers of the Employer to withdraw,\ncurtail, or cancel his or her or its business with the Employer; or\n(ii) cause, suggest, or induce others to call on any past, present, or future\ncustomers of the Employer.\nThe "Non-Compete Period" shall commence on the date hereof and terminate one year\nafter the cessation of the Executive’s employment with the Employer and all of its affiliates,\nregardless of reason, whether or not pursuant to this Agreement.\n(c) Non-Solicitation of Employees\nWhile employed by the Employer, and for one year following cessation of his or her\nemployment with the Employer and all of its affiliates for any reason, the Executive shall not,\ndirectly or indirectly, by any means or device whatsoever, for himself or herself or on behalf of,\nor in conjunction with, any other person, partnership or corporation, solicit, entice, hire, or\nattempt to hire or employ any employee of the Employer, the Company, the Bank, Trust Services\nor any of their affiliated entities.\n8.\nREFORMATION; INJUNCTIVE RELIEF.\n(a) All the parties hereto acknowledge that the parties have carefully considered the\nnature and scope of this Agreement. The activities, period and area covered by Section 7 are\nexpressly acknowledged and agreed to be fair, reasonable and necessary. To the extent that any\ncovenant contained in Section 7 is held to be invalid, illegal or unenforceable because of the\nextent of activities, duration of such covenant, the geographic area covered thereby, or otherwise,\nthe parties agree that the court making such determination shall reform such covenant to include\nas much of its nature and scope as will render it enforceable and, in its reduced form, said\ncovenant shall be valid, legal and enforceable to the fullest extent of the law.\nThe invalidity or unenforceability of any provision of this Agreement, after reformation\nas provided in this Section 8, shall not affect any other provision hereof, and this Agreement\nshall be construed in all respects as if such invalid or unenforceable provision was omitted.\nFurthermore, in lieu of such illegal, invalid, or unenforceable provision, there shall be added\nautomatically as a part of this Agreement a provision as similar in terms to such illegal, invalid,\nor unenforceable provision as may be possible and be legal, valid, and enforceable.\n(b) The Executive acknowledges and agrees that, upon any breach by the Executive\nof his or her obligations under Section 7 hereof, the Employer will have no adequate remedy at\nlaw, and accordingly will be entitled to specific performance and other appropriate injunctive and\nequitable relief, notwithstanding Section 9 hereof. Nothing herein shall be construed as\nprohibiting the Employer from pursuing any other remedies available to it, including the\nrecovery of damages from the Executive.\n9.\nMEDIATION AND ARBITRATION.\nIf the Executive and the Employer have any dispute whatsoever relating to the\ninterpretation, validity or performance of this Agreement, or any other dispute arising out of this\nAgreement, every reasonable attempt will be made to resolve any differences or dispute within\nthirty (30) days of an issuance of written notice by either party to the other party.\nIf a successful resolution of any differences or dispute has not been achieved to the\nsatisfaction of both parties at the end of the thirty (30) day period, the following steps will be\nused:\nExcept as otherwise expressly provided hereunder, the parties agree that any and all\ndisputes arising out of the Executive’s employment or cessation of employment, including but\nnot limited to any dispute, controversy, or claim arising under any federal, state, or local statute,\nlaw, ordinance or regulation or under this Agreement, shall be resolved exclusively by\nAlternative Dispute Resolution described in this Agreement ("ADR"). The initiation of ADR\nshall first require mediation, and the parties agree to first try to settle any dispute through\nmediation. Mediation shall be initiated by either party by the serving of a written notice of intent\nto mediate (a "Mediation Notice") by one party upon the other. If no resolution has been\nmutually agreed through mediation within ninety (90) days of service of a Mediation Notice,\nthen and only then may the dispute be submitted to arbitration. Arbitration shall be initiated by\nthe serving of a written notice of intent to arbitrate (an "Arbitration Notice") by one party upon\nthe other. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to preclude\nthe Employer from seeking temporary or permanent injunctive relief and/or damages from a\ncourt of competent jurisdiction pursuant to Section 8 of this Agreement with respect to any\nbreach of Section 7 of this Agreement.\n(a) In the event that a party wishes to initiate ADR, a Mediation Notice must be\nserved on the other party within six months from the date on which the claim arose. If the parties\ncannot mutually agree on a mediator, then a mediator shall be selected in accordance with the\nEmployment Mediation Rules of the American Arbitration Association.\n(b) In the event that mediation is unsuccessful and arbitration is initiated, it shall be\nconducted under the National Rules of the Resolution of Employment Disputes of the American\nArbitration Association. There shall be a single arbitrator to be agreed upon by the parties,\nprovided that, if the parties are unable to agree upon a single arbitrator, each party shall name an\narbitrator and the two so named shall name a third arbitrator. The arbitration proceedings shall\nbe heard by the arbitrator(s) and the decision of the arbitrator, or the majority of the panel if one\nhas been selected, shall be final and binding on the parties. Judgment upon the arbitration award\nmay be entered in any court of competent jurisdiction. An Arbitration Notice must be served on\nthe other party within one year from the date on which the claim arose, and failure to bring such\na claim within such one-year period shall constitute a waiver of such claim and an absolute bar to\nany further proceedings in any forum with respect to it. All mediation and arbitration\nproceedings shall be conducted in Bangor, Maine, unless the parties otherwise agree in writing.\n(c) The cost of any mediation proceeding under this Section 9 shall be paid entirely\nby the Employer. The cost of any arbitration proceeding will be shared equally by the parties to\nthe dispute; provided, however, that, if the dispute is resolved in favor of the Executive, such cost\nshall be paid in full by the Employer. Each party shall be responsible for its own cost of\nrepresentation and counsel.\n10. POST-TERMINATION OBLIGATIONS .\nAll payments and benefits due to the Executive under this Agreement shall be subject to\nthe Executive's compliance with this Section 10 for one full year following the Executive's Date\nof Termination. The Executive shall, upon reasonable notice, furnish such information and\nassistance to the Employer, the Company, the Bank or Trust Services as may reasonably be\nrequired by the Employer, the Company, the Bank or Trust Services in connection with any\nlitigation in which it or any of its subsidiaries or affiliates is, or may become, a party.\n11. GENERAL PROVISIONS.\n(a) All notices required by this Agreement shall be in writing and shall be sufficiently\ngiven if delivered personally or mailed by registered mail or certified mail, return receipt\nrequested, to the parties at their then current addresses. All notices shall be deemed to have been\ngiven as of the date so delivered or mailed.\nWitness:\n_____________________________\n/s/Mark Clapp\n___________________________\n/s/William Swales\n(b) This Agreement and the plans and agreements described in Section 5(b) contain\nthe entire transaction between the parties, and there are no other representations, warranties,\nconditions or agreements relating to the subject matter thereof. This Agreement hereby\nsupersedes any prior Change in Control Agreement between the Executive and the Company.\n(c) The waiver by any party of any breach or default of any provision of this\nAgreement shall not operate or be construed as a waiver of any subsequent breach.\n(d) This Agreement may not be changed orally but only by an agreement in writing\nexecuted on behalf of the party against which enforcement of any waiver, change, modification,\nconsent or discharge is sought.\n(e) This Agreement shall be binding upon and inure to the benefit of the Employer\nand the Executive and their respective successors, assigns, heirs and legal representatives\n(including, but not limited to, any successor of the Employer described in Section 6).\n(f)\nEach of the parties agrees to execute all further instruments and documents and to\ntake all further action as the other party may reasonably request in order to effectuate the terms\nand purposes of this Agreement.\n(g) This Agreement may be executed in one or more counterparts, all of which taken\ntogether shall constitute one and the same instrument.\n(h) This Agreement shall be construed pursuant to and in accordance with the laws of\nthe State of Maine. Actions brought by the Employer under this Agreement shall be subject to\nthe exclusive jurisdiction of the state and federal courts of Maine. Both parties consent to the\npersonal jurisdiction of such courts for such actions, and agree that they may be served with\nprocess in accordance with Section 11(a). Notwithstanding anything herein to the contrary, any\npayments to the Executive, whether pursuant to this Agreement or otherwise, are subject to and\nconditioned upon their compliance with Section 18(k) of the Federal Deposit Insurance Act, §12\nU.S .C . 1828(k) and any regulations promulgated thereunder.\n(i)\nThe Executive acknowledges that he has had a full and complete opportunity to\nreview the terms, enforceability and implications of this Agreement, and that the Employer has\nnot made any representations or warranties to the Executive concerning the terms, enforceability\nand implications of this Agreement other than as are reflected in this Agreement.\n(j) Any provision of this Agreement that is susceptible to more than one\ninterpretation shall be interpreted in a manner that is consistent with this Agreement satisfying\nthe requirements of Code Section 409A.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first\nabove written.\nCOMPANY:\nBAR HARBOR BANKSHARES\nBY\n________________________________________\n/s/Peter Dodge\nPeter Dodge,\nPeter Dodge,\nIts Chairman of the Board\nWitness:\nEXECUTIVE:\nBY\n_______________________________________\n/s/Richard Maltz
+3e1e64647eaf883d7b49aba5dce0926a.pdf	jurisdiction party	Exhibit B\nEMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON -COMPETE AGREEMENT\nTHIS EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON -COMPETE AGREEMENT (“Agreement”) is made as of the date set forth on the\nsignature page below between POZEN Inc. ( “POZEN ”) , and the person whose name is set forth on the signature page below as Employee (“Employee”).\nIn consideration of Employee’s employment or continued employment by POZEN, with the intention that this Agreement shall apply to the entire period of\nEmployee’s employment with POZEN (including the period prior to the date of this Agreement), Employee hereby agrees as follows:\n1.\nCONFIDENTIAL INFORMATION DEFINED. “ Confidential Information” means trade secrets, proprietary information and materials, and confidential\nknowledge and information which includes, but is not limited to, matters of a technical nature (such as discoveries, ideas, concepts, designs, drawings,\nspecifications, techniques, models, diagrams, test data, scientific methods and know-how, and materials such as reagents, substances, chemical compounds,\nsubcellular constituents, cell or cell lines, organisms and progeny, and mutants, derivatives or replications derived from or relating to any of the foregoing\nmaterials), and matters of a business nature (such as the identity of customers and prospective customers, the nature of work being done for or discussed with\ncustomers or prospective customers, suppliers, marketing techniques and materials, marketing and development plans, pricing or pricing policies, financial\ninformation, plans for further development, and any other information of a similar nature not available to the public).\n“Confidential Information” shall not include information that: (a) was in Employee’s possession or in the public domain before receipt from the Company, as\nevidenced by the then existing publication or other public dissemination of such information in written or other documentary form; (b) becomes available to the\npublic through no fault of Employee; (c) is received in good faith by Employee from a third party who is known to Employee to be not subject to an obligation of\nconfidentiality to the Company or any other party; or (d) is required by a judicial or administrative authority or court having competent jurisdiction to be disclosed\nby Employee, provided that Employee shall promptly notify the Company and not attempt to prevent the Company from opposing or limiting such order.\n2.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF POZEN. Employee acknowledges that, during the period of Employee’s\nemployment with POZEN, Employee has had or will have access to Confidential Information of POZEN. Therefore, Employee agrees that both during and after\nthe period of Employee’s employment with POZEN, Employee shall not, without the prior written approval of POZEN, directly or indirectly (a) reveal, report,\npublish, disclose or transfer any Confidential Information of POZEN to any person or entity; or (b) use any Confidential Information of POZEN for any purpose or\nfor the benefit of any person or entity, except in the good faith performance of Employee’s work for POZEN or to comply with an order from any court of\ncompetent jurisdiction.\n3.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF OTHERS . Employee acknowledges that, during the period of Employee’s\nemployment with POZEN, Employee may have had or will have access to Confidential Information of third parties who have given POZEN the right to use such\nConfidential Information, subject to a non-disclosure agreement between POZEN and such third party. Therefore, Employee agrees that both during and after the\nperiod of Employee’s employment with POZEN, Employee shall not, without the prior written approval of POZEN, directly or indirectly (a) reveal, report, publish,\ndisclose or transfer any Confidential Information of such third parties to any person or entity; or (b) use any Confidential Information of such third parties for any\npurpose or for the benefit of any person or entity, except in the good faith performance of Employee’s work for POZEN or to comply with an order from any court\nof competent jurisdiction.\n-18-\n4.\nPROPERTY OF POZEN. Employee acknowledges and agrees that all Confidential Information of POZEN and all reports, drawings, blueprints,\nmaterials, data, code, notes and other documents and records (other than Employee’s personal address book), whether printed, typed, handwritten, videotaped,\ntransmitted or transcribed on data files or on any other type of media, and whether or not labeled or identified as confidential or proprietary, made or compiled by\nEmployee, or made available to Employee, during the period of Employee employment with POZEN (including the period prior to the date of this Agreement)\nconcerning POZEN’s Confidential Information are and shall remain POZEN’s property and shall be delivered to POZEN within five (5) business days after the\ntermination of such employment with POZEN or at any earlier time on request of POZEN. Employee shall not retain copies of such Confidential Information,\ndocuments and records.\n5.\nPROPRIETARY NOTICES. Employee shall not, and shall not permit any other person to, remove any proprietary or other legends or restrictive\nnotices contained in or included in any Confidential Information.\n6.\nINVENTIONS.\n(a)\nEmployee shall promptly, from time to time, fully inform and disclose to POZEN in writing all inventions, copyrightable material, designs,\nimprovements and discoveries of any kind which Employee now has made, conceived or developed (including prior to the date of this Agreement), or which\nEmployee may later make, conceive or develop, during the period of Employee’s employment with POZEN, which pertain to or relate to POZEN’s business or any\nof the work or businesses carried on by POZEN (“Inventions”). This covenant applies to all such Inventions, whether or not they are eligible for patent, copyright,\ntrademark, trade secret or other legal protection; and whether or not they are conceived and/or developed by Employee alone or with others; and whether or not\nthey are conceived and/or developed during regular working hours; and whether or not they are conceived and/or developed at POZEN’s facility or not.\n(b)\nInventions shall not include any inventions made, conceived or developed by Employee prior to Employee’s employment with POZEN.\n(c)\nAll Inventions shall be the sole and exclusive property of POZEN, and shall be deemed part of the Confidential Information of POZEN for purposes\nof this Agreement, whether or not fixed in a tangible medium of expression. Employee hereby assigns all Employee’s rights in all Inventions and in all related\npatents, copyrights and trademarks, trade secrets and other proprietary rights therein to POZEN. Without limiting the foregoing, Employee agrees that any\ncopyrightable material shall be deemed to be “works made for hire” and that POZEN shall be deemed the author of such works under the United States Copyright\nAct, provided that in the event and to the extent such works are determined not to constitute “works made for hire”, Employee hereby irrevocably assigns and\ntransfers to POZEN all right, title and interest in such works.\n(d)\nEmployee shall assist and cooperate with POZEN, both during and after the period of Employee’s employment with POZEN, at POZEN’s sole\nexpense, to allow POZEN to obtain, maintain and enforce patent, copyright, trademark, trade secret and other legal protection for the Inventions. Employee shall\nsign such truthful documents, and do such things necessary, to obtain such protection and to vest POZEN with full and exclusive title in all Inventions against\ninfringement by others. Employee hereby appoints the Secretary of POZEN as Employee’s attorney-in-fact to execute any truthful documents on Employee’s\nbehalf for this purpose.\n-19-\n(e)\nEmployee shall not be entitled to any additional compensation for any and all Inventions made during the period of Employee’s employment with\nPOZEN.\n7.\nCOVENANT NOT TO COMPETE. If Employee is, at any time during Employee’s period of employment with POZEN, employed in the discovery or\ndevelopment areas of the Company in a non-clerical position, or as a director level or higher level senior manager of the Company, then this Section 7 shall\napply. Employee and POZEN agree that the services rendered by Employee are unique and irreplaceable, and that competitive use and knowledge of any\nConfidential Information would substantially and irreparably injure POZEN’s business, prospects and good will. Employee and POZEN also agree that POZEN’s\nbusiness is global in nature due to the type of products and/or services being provided. Therefore, Employee agrees that during the period of Employee’s\nemployment with POZEN and for a period of one (1) year thereafter, Employee shall not, directly or indirectly, through any other person, firm, corporation or other\nentity (whether as an officer, director, employee, partner, consultant, holder of equity or debt investment, lender or in any other manner or capacity):\n(a)\ndevelop, sell, market, offer to sell products and/or services anywhere in the world that have the same or similar technological approach or\ntechnology platform (e.g. , s ame r ec eptors, same mechanism of action, etc.) and have the same indication as those being developed, offered or sold by POZEN\non the date of the termination of Employee’s employment with POZEN for any reason, provided that the foregoing shall not be violated by Employee’s activities\nwith an entity where the portion of the competitive business involved is less than five percent (5%) of the revenues of the portion of the entity that is under\nEmployee’s supervision;\n(b)\nsolicit, induce, encourage or attempt to induce or encourage any employee or consultant of POZEN, except Employee’s executive assistant, to\nterminate his or her employment or consulting relationship with POZEN, or to breach any other obligation to POZEN (other than advertising not specifically\ntargeted at the Company’s employees and serving as a reference upon request), however, notwithstanding the foregoing, Employee may engage in the activities\ndescribed in this Section 7(b) with respect to one executive who worked with Employee in the past and joined the Company without it violating this provision; or\n(c)\ninterfere with, disrupt, alter or attempt to disrupt or alter the relationship, contractual or otherwise, between POZEN and any consultant, contractor,\ncustomer, potential customer, or supplier of POZEN.\nEmployee acknowledges that the foregoing geographic, activity and time limitations contained in this Section 7 are reasonable and properly required for the\nadequate protection of POZEN’s business. In the event that any such geographic, activity or time limitation is deemed to be unreasonable by a court, Employee\nshall submit to the reduction of either said activity or time limitation to such activity or period as the court shall deem reasonable. In the event that Employee is in\nviolation of the aforementioned restrictive covenants, then the time limitation thereof shall be extended for a period of time equal to the pendency of such\nproceedings, including appeals.\n8.\nDISCLOSURE OF THIS AGREEMENT. Employee hereby authorizes POZEN to notify others, including but not limited to customers of POZEN and any\nof Employee’s future employers, of the terms of this Agreement and Employee’s responsibilities under this Agreement.\n-20-\n9.\nSPECIFIC PERFORMANCE. Employee acknowledges that money damages alone would not adequately compensate POZEN in the event of a\nbreach or threatened breach by Employee of this Agreement, and that, in addition to all other remedies available to POZEN at law or in equity, POZEN shall be\nentitled to injunctive relief for the enforcement of its rights and to an accounting of profits made during the period of such breach.\n10.\nNO RIGHTS GRANTED. Employee understands that nothing in this Agreement shall be deemed to constitute, by implication or otherwise, the\ngrant by POZEN to the employee of any license or other right under any patent, patent application or other intellectual property right or interest belonging to\nPOZEN.\n11.\nSEVERABILITY.\n(a)\nEach of the covenants provided in this Agreement are separate and independent covenants. If any provision of this Agreement shall be determined\nto be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and any such invalid or unenforceable provision shall be reformed so\nas to be valid and enforceable to the fullest extent permitted by law.\n(b)\nIt is not a defense to the enforcement of any provision of this Agreement that POZEN has breached or failed to perform any obligation or covenant\nhereunder or under any other agreement or understanding between Employee and POZEN.\n12.\nGOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without regard\nto conflict of law rules. All suits and claims shall be made only in state or federal courts located in North Carolina.\n13.\nSUPERSEDES OTHER AGREEMENTS. This Agreement contains the entire agreement of the parties with respect to subject matter hereof and\nsupersedes all previous agreements and understandings between the parties with respect to its subject matter.\n14.\nAMENDMENTS. This Agreement may not be changed, modified, released, discharged, abandoned or otherwise terminated in whole or in part\nexcept by an instrument in writing, agreed to and signed by the Employee and a duly authorized officer of POZEN.\n15.\nACKNOWLEDGEMENTS. THE EMPLOYEE ACKNOWLEDGES THAT (i) THE EMPLOYEE HAS READ AND FULLY UNDERSTANDS THIS\nAGREEMENT; (ii) THE EMPLOYEE HAS BEEN GIVEN THE OPPORTUNITY TO ASK QUESTIONS; (iii) THE EMPLOYEE HAS RECEIVED A COPY OF THIS\nAGREEMENT, THE ORIGINAL OF WHICH WILL BE RETAINED IN THE EMPLOYEE ’S PERSONNEL FILE; AND (iv) THE EMPLOYEE’S OBLIGATIONS\nUNDER THIS AGREEMENT SURVIVE THE TERMINATION OF THE EMPLOYEE’S EMPLOYMENT WITH POZEN FOR ANY REASON .\n-21-\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth below.\nPOZEN INC.\nBy:\nTitle:\nEMPLOYEE:\nAdrian Adams\n(Print Name)\n(Signature Here)\nDate:\nAddress:\n-22-	Exhibit B\nEMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE AGREEMENT\n \nTHIS EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE AGREEMENT (“Agreement") is made as ofIhe date set forth on the\nsignature page below between POZEN Inc. (“POZE N"), and the person whose name is set forth on the signature page below as Employee (“E mployee").\nIn consideration of Employee’s employment or continued employment by POZE N, wiIh the intention thatthis Agreementshall apply to the entire period of\nEmployee’s employment with POZE N (including the period prior to the date of Ihis Agreement), Employee hereby agrees as follows:\n1. CONFIDE NTIAL IN FORMATION DEFIN E D. “Confidential Information" means trade secreIs, proprietary information and materials, and confidential\nknowledge and information which includes, but is not limited to, matters of a technical nature (such as discoveries, ideas, concepIs, designs, drawings,\nspecifications, techniques, models, diagrams, testdata, scientific methods and know-how, and materials such as reagents, substances, chemical compounds,\nsubcellular constituents, cell or cell lines, organisms and progeny, and mutanIs, derivatives or replications derived from or relating to any ofthe foregoing\nmaterials), and matters of a business nature (such as the identity ofcustomers and prospective customers, the nature ofwork being done for or discussed with\ncustomers or prospective customers, suppliers, marketing techniques and materials, marketing and development plans, pricing or pricing policies, financial\ninformation, plans for futher development, and any oIher information of a similar nature not available to the public).\n“Confidential Information"shall notinclude information that: (a) was in Employee’s possession or in the public domain before receipt from Ihe Company, as\nevidenced by Ihe Ihen existing publication or oIher public dissemination ofsuch information in written or oIher documentary form; (b) becomes available to the\npublic through no fault of Employee; (c) is received in good faith by Employee from a Ihird party who is known to Employee to be notsubjectto an obligation of\nconfidentiality to Ihe Company or any other party; or (d) is required by a judicial or administrative authority or court having competentjurisdiction to be disclosed\nby Employee, provided Lat Employee shall promptly notify Ihe Company and not attempt to prevent Ihe Company from opposing or limiting such order.\n2. NON-DISCLOSURE OF CONFIDE NTIAL INFORMATION OF POZE N. Employee acknowledges Ihat, during the period of Employee’s\nemployment with POZEN, Employee has had or will have access to Confidential Information of POZEN. Therefore, Employee agrees that both during and after\nIhe period of Employee’s employmentwiIh POZE N, Employee shall not, without Ihe prior written approval of POZE N, direcij or indirectly (a) reveal, report,\npublish, disclose or transfer any Confidential Information of POZEN to any person or entity; or (b) use any Confidential Information of POZE N for any purpose or\nfor the benefit of any person or entity, except in the good faith performance of Employee’s work for POZE N or to comply with an order from any court of\ncompetentjurisdiction.\n3. NON-DISC LOSU RE OF CON F IDE NTIAL INFO RMATION OF OTHE RS. E mployee acknowledges that, during the period of E mployee’s\nemployment with POZEN, Employee may have had or will have access to Confidential Information ofIhird parties who have given POZEN Ihe right to use such\nConfidential Information, subject to a non-disclosure agreement between POZEN and such third party. Therefore, Employee agrees that both during and after Ihe\nperiod of Employee’s employmentwiIh POZEN, Employee shall not, without the prior written approval of POZE N, direcij or indirectly (a) reveal, report, publish,\ndisclose or transfer any Confidential Information ofsuch Ihird parties to any person or entity; or (b) use any Confidential Information ofsuch Ihird parties for any\npurpose or for the benefit of any person or entity, except in the good faith performance of Employee’s work for POZE N or to comply wiIh an order from any court\nof competentjurisdiction.\n.18.\n4. P ROPE RTY OF POZE N. Employee acknowledges and agrees Ihat all Confidential Information of POZE N and all reports, drawings, blueprints,\nmaterials, data, code, notes and oIher documenIs and records (other Ihan Employee’s personal address book), whether printed, typed, handwritten, videotaped,\ntransmitted or transcribed on data files or on any other type of media, and whether or not labeled or identified as confidential or proprietary, made or compiled by\nEmployee, or made available to Employee, during the period of Employee employmentwith POZE N (including the period prior to the date of this Agreement)\nconcerning POZEN’s Confidential Information are and shall remain POZEN’s property and shall be delivered to POZEN within five (5) business days afterthe\ntermination of such employmentwith POZE N or at any earlier time on request of POZE N. Employee shall not retain copies of such Confidential Information,\ndocuments and records.\n5. PROP RIETARY NOTICES. Employee shall not, and shall not permit any other person to, remove any proprietary or other legends or restrictive\nnotices contained in or included in any Confidential Information.\n6. INVENTIONS.\n(a) Employee shall promijy, from time to time, fully inform and disclose to POZEN in writing all inventions, copyrightable material, designs,\nimprovemenIs and discoveries of any kind which Employee now has made, conceived or developed (including prior to the date of this Agreement), or which\nEmployee may later make, conceive or develop, during the period of Employee’s employment with POZE N, which pertain to or relate to POZE N’s business or any\nof Ihe work or businesses carried on by POZE N (“Inventions"). This covenant applies to all such Inventions, whether or notthey are eligible for patent, copyright,\ntrademark, trade secretor other legal protection; and whether or not they are conceived and/or developed by Employee alone or with others; and whether or not\nIhey are conceived and/or developed during regular working hours; and whether or not they are conceived and/or developed at POZEN’s facility or not.\n(b) Inventions shall not include any inventions made, conceived or developed by Employee prior to Employee’s employment with POZE N.\n(c) All Inventions shall be the sole and exclusive property of POZE N, and shall be deemed part ofthe Confidential Information of POZE N for purposes\nof this Agreement, whether or not fixed in a tangible medium ofexpression. Employee hereby assigns all Employee’s rights in all Inventions and in all related\npatents, copyrights and trademarks, trade secrets and other proprietary rights therein to POZEN. Without limiting the foregoing, Employee agrees that any\ncopyrightable material shall be deemed to be “works made for hire" and that POZE N shall be deemed the author ofsuch works under the United States Copyright\nAct, provided Lat in the event and to the extentsuch works are determined not to constitute “works made for hire", Employee hereby irrevocably assigns and\ntransfers to POZEN all right, title and interestin such works.\n(d) Employee shall assist and cooperate with POZE N, both during and after the period of Employee’s employmentwith POZEN, at POZE N’s sole\nexpense, to allow POZE N to obtain, maintain and enforce patent, copyright, trademark, trade secret and other legal protection for the Inventions. Employee shall\nsign such truthful documents, and do such things necessary, to obtain such protection and to vest POZEN with full and exclusive title in all Inventions against\ninfringement by others. Employee hereby appoints the Secretary of POZE N as Employee’s attorney-in-factto execute any truthful documents on Employee’s\nbehalf for this purpose.\n_ 19 _\n(e) Employee shall not be entitled to any additional compensation for any and all Inventions made during the period of Employee’s employmentwith\nPOZE N.\n7. COVE NANT NOT TO COM PETE. If Employee is, at any time during Employee’s period ofemploymentwith POZE N, employed in the discovery or\ndevelopment areas ofthe Company in a non-clerical position, or as a director level or higher level senior manager of the Company, then this Section 7 shall\napply. Employee and POZEN agree thatthe sen/ices rendered by Employee are unique and irreplaceable, and thatcompetitive use and knowledge of any\nConfidential Information would substantially and irreparably injure POZE N’s business, prospects and good will. Employee and POZE N also agree that POZE N’s\nbusiness is global in nature due to the type of products and/or services being provided. Therefore, Employee agrees thatduring the period of Employee’s\nemployment with POZE N and for a period of one (1) year thereafter, Employee shall not, directly or indirectly, through any other person, firm, corporation or other\nentity (whether as an officer, director, employee, partner, consultant, holder of equity or debt investment, lender or in any other manner or capacity):\n(a) develop, sell, market, offer to sell products and/or sen/ices anywhere in the world that have the same or similar technological approach or\ntechnology platform (e.g., same receptors, same mechanism of action, etc.) and have the same indication as those being developed, offered or sold by POZE N\non the date of the termination of Employee’s employment with POZE N for any reason, provided th_at the foregoing shall not be violated by Employee’s activities\nwith an entity where the portion of the competitive business involved is less than five percent (5%) of the revenues of the portion of the entity that is under\nEmployee’s supen/ision;\n(b) solicit, induce, encourage or attempt to induce or encourage any employee or consultantof POZE N, except Employee’s executive assistant, to\nterminate his or her employment or consulting relationship with POZE N, or to breach any other obligation to POZE N (other than advertising not specifically\ntargeted at the Company's employees and sewing as a reference upon request), however, notwithstanding the foregoing, Employee may engage in the activities\ndescribed in this Section 7(b) with respect to one executive who worked with Employee in the past and joined the Company without it violating this provision; or\n(c) interfere with, disrupt, alter or attempt to disruptor alter the relationship, contractual or otherwise, between POZE N and any consultant, contractor,\ncustomer, potential customer, or supplier of POZE N.\nEmployee acknowledges thatthe foregoing geographic, activity and time limitations contained in this Section 7 are reasonable and properly required for the\nadequate protection of POZE N’s business. In the event that any such geographic, activity or time limitation is deemed to be unreasonable by a court, Employee\nshall submit to the reduction ofeither said activity or time limitation to such activity or period as the courtshall deem reasonable. In the event that Employee is in\nviolation of the aforementioned restrictive covenants, then the time limitation thereofshall be extended for a period of time equal to the pendency ofsuch\nproceedings, including appeals.\n8. DISCLOSURE OF THIS AGREEMENT. Employee hereby authorizes POZEN to notify others, including butnotlimited to customers of POZEN and any\nof Employee’s future employers, of the terms ofthis Agreement and Employee’s responsibilities under this Agreement.\n.20.\n9. SP EC IFIC P ERFORMANC E. Employee acknowledges that money damages alone would not adequately compensate POZE N in the eventof a\nbreach or threatened breach by Employee of this Agreement, and that, in addition to all other remedies available to POZEN at law or in equity, POZE N shall be\nentitled to injunctive relief for the enforcementof its rights and to an accounting of profits made during the period of such breach.\n10. NO RIGHTS G RANTED. Employee understands that nothing in this Agreementshall be deemed to constitute, by implication or otherwise, the\ngrant by POZEN to the employee of any license or other right under any patent, patent application or other intellectual property rightor interest belonging to\nPOZE N.\n11. SEVERABILITY.\n(a) Each ofthe covenants provided in this Agreement are separate and independentcovenants. If any provision of this Agreementshall be determined\nto be invalid or unenforceable, the remainder of this Agreementshall not be affected thereby and any such invalid or unenforceable provision shall be reformed so\nas to be valid and enforceable to the fullest extent permitted by law.\n(b) It is not a defense to the enforcementof any provision of this Agreement that POZE N has breached or failed to perform any obligation or covenant\nhereunder or under any other agreement or understanding between E mployee and POZE N.\n12. GOVE RN ING LAW. This Agreementshall be governed by and construed in accordance with the laws ofthe State of North Carolina without regard\nto conflictof law rules. All suits and claims shall be made only in state or federal courts located in North Carolina.\n13. S U P E RS E DE S OTHE R AG RE E M E NTS. This Agreement contains the entire agreement of the parties with respect to subject matter hereof and\nsupersedes all previous agreements and understandings between the parties with respectto its subject matter.\n14. AM E NDM E NTS. This Agreement may not be changed, modified, released, discharged, abandoned or otherwise terminated in whole or in part\nexcept by an instrument in writing, agreed to and signed by the Employee and a duly authorized officer of POZE N.\n15. ACKNOWLEDGEMENTS. THE EMPLOYEE ACKNOWLEDGES THAT (i)THE EMPLOYEE HAS READ AND FULLY UNDERSTANDS THIS\nAGREEMENT; (ii)THE EMPLOYEE HAS BEEN GIVEN THE OPPORTUNITY TO ASK QUESTIONS; (iii)THE EMPLOYEE HAS RECEIVEDACOPY OF THIS\nAGREEMENT,THE ORIGINAL OF WHICH WILL BE RETAINED IN THE EMPLOYEE'S PERSONNEL FILE;AND (iv)THE EMPLOYEE'S OBLIGATIONS\nUNDER THIS AGREEMENT SURVIVE THE TERMINATION OF THE EMPLOYEE'S EMPLOYMENT WITH POZEN FOR ANY REASON.\n.21.\nIN W|TN ESS WHE REOF, the parties have executed this Agreement as of the date set forth below.\nPOZE N INC.\nBy:\nTilje:\nEMPLOYEE: Adrian Adams\n(PrintName)\n(Signature Here)\nDate:\nAddress:\n.22.	xhibit B\nEMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE AGREEMENT\nTHIS EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE AGREEMENT ("Agreement") is made as of the date set forth\non\nthe\nsignature page below between POZEN Inc. ("POZE N") and the person whose name is set forth on the signature page below as Employee ("Employee").\nIn consideration of Employee's employment or continued employment by POZEN, with the intention that this Agreement shall apply to the entire period of\nEmployee's employment with POZEN (including the period prior to the date of this Agreement), Employee hereby agrees as follows:\n1.\nCONFIDENTIAL INFORMATION DEFINED. "Confidential Information" means trade secrets, proprietary information and materials, and confidential\nknowledge and information which includes, but is not limited to, matters of a technical nature (such as discoveries, ideas, concepts, designs, drawings,\nspecifications, techniques, models, diagrams, test data, scientific methods and know-how, and materials such as reagents, substances, chemical compounds,\nsubcellular constituents, cell or cell lines, organisms and progeny, and mutants, derivatives or replications derived from or relating to any of the foregoing\nmaterials), and matters of a business nature (such as the identity of customers and prospective customers, the nature of work being done for or discussed with\ncustomers or prospective customers, suppliers marketing techniques and materials, marketing and development plans, pricing or pricing policies, financial\ninformation, plans for further development, and any other information of a similar nature not available to the public).\n"Confidential Information" shall not include information that: (a) was in Employee's possession or in the public domain before receipt from the Company, as\nevidenced by the then existing publication or other public dissemination of such information in written or other documentary form; (b) becomes available to the\npublic through no fault of Employee; (c) is received in good faith by Employee from a third party who is known to Employee to be not subject to an obligation of\nconfidentiality to the Company or any other party; or (d) is required by a judicial or administrative authority or court having competent jurisdiction to be disclosed\nby Employee, provided that Employee shall promptly notify the Company and not attempt to prevent the Company from opposing or limiting such order.\n2.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF POZEN. Employee acknowledges that, during the period of Employee's\nemployment with POZEN, mployee has had or will have access to Confidential Information of POZEN. Therefore, Employee agrees that both during and after\nthe period of mployee's employment with POZEN, Employee shall not, without the prior written approval of POZEN, directly or indirectly (a) reveal, report,\npublish, disclose or transfer any Confidential Information of POZEN to any person or entity; or (b) use any Confidential Information of POZEN for any purpose or\nfor the benefit of any person or entity, except in the good faith performance of Employee's work for POZEN or to comply with an order from any court of\ncompetent jurisdiction.\n3.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF OTHERS. Employee acknowledges that, during the period of mployee's\nemployment with POZEN, Employee may have had or wil have access to Confidential Information of third parties who have given POZEN the right to use such\nConfidential Information, subject to a non-disclosure agreement between POZEN and such third party. Therefore, Employee agrees that both during and after the\nperiod of E mployee's employment with POZEN, mployee shall not, without the prior written approval of POZEN, directly or indirectly (a) reveal, report, publish,\ndisclose or transfer any Confidential Information of such third parties to any person or entity; or (b) use any Confidential Information of such third parties for any\npurpose or for the benefit of any person or entity, except in the good faith performance of mployee's work for POZEN or to comply with an order from any court\nof competent jurisdiction.\n18\n4.\nPROPERTY OF POZEN. mployee acknowledges and agrees that all Confidential Information of OZEN and all reports, drawings, blueprints,\nmaterials, data, code, notes and other documents and records (other than Employee's personal address book), whether printed, typed, handwritten, videotaped,\ntransmitted or transcribed on data files or on any other type of media, and whether or not labeled or identified as confidential or proprietary, made or compiled by\nmployee, or made available to Employee, during the period of Employee employment with POZEN (including the period prior to the date of this Agreement)\nconcerning POZEN's Confidential Information are and shall remain POZEN's property and shall be delivered to POZEN within five (5) business days after the\ntermination of such employment with POZEN or at any earlier time on request of POZEN. Employee shall not retain copies of such Confidential Information,\ndocuments and records.\n5.\nPROPRIETARY NOTICES. Employee shall not, and shall not permit any other person to, remove any proprietary or other legends or restrictive\nnotices contained in or included in any Confidential Information.\n6.\nINVENTIONS.\n(a)\nEmployee shall promptly, from time to time, fully inform and disclose to POZEN in writing all inventions, copyrightable material, designs,\nimprovements and discoveries of any kind which Employee now has made conceived or developed (including prior to the date of this Agreement), or which\nmployee may later make, conceive or develop, during the period of Employee's employment with POZEN, which pertain to or relate to POZEN's business or any\nof the work or businesses carried on by POZEN ("Inventions"). This covenant applies to all such Inventions, whether or not they are eligible for patent, copyright,\ntrademark, trade secret or other lega protection; and whether or not they are conceived and/or developed by Employee alone or with others; and whether or not\nthey are conceived and/or developed during regular working hours; and whether or not they are conceived and/or developed at POZEN's facility or not.\n(b)\nInventions shall not include any inventions made, conceived or developed by E mployee prior to Employee's employment with POZEN.\n(c)\nAl Inventions shall be the sole and exclusive property of POZEN, and shal be deemed part of the Confidential Information of POZEN for purposes\nof this Agreement, whether or not fixed in a tangible medium of expression. mployee hereby assigns all E mployee's rights in all Inventions and in all related\npatents, copyrights and trademarks, trade secrets and other proprietary rights therein to POZEN. Without limiting the foregoing, Employee agrees that any\ncopyrightable material shall be deemed to be "works made for hire" and that POZEN shall be deemed the author of such works under the United States Copyright\nAct, provided that in the event and to the extent such works are determined not to constitute "works made for hire", Employee hereby irrevocably assigns and\ntransfers to POZEN all right, title and interest in such works.\n(d)\nEmployee shall assist and cooperate with POZEN, both during and after the period of Employee's employment with OZEN at POZEN' sole\nexpense to allow POZEN to obtain, maintain and enforce patent copyright, trademark, trade secret and other legal protection for the Inventions. Employee shall\nsign such truthful documents, and do such things necessary, to obtain such protection and to vest POZEN with full and exclusive title in all Inventions against\ninfringement by others. Employee hereby appoints the Secretary of POZEN as Employee's attorney-in-fact to execute any truthful documents on Employee's\nbehalf for this purpose.\n19\n(e)\nmployee shall not be entitled to any additional compensation for any and all Inventions made during the period of mployee's employment with\nPOZEN.\n7.\nCOVENANT NOT TO COMPETE. If Employee is, at any time during Employee's period of employment with POZEN, employed in the discovery or\ndevelopment areas of the Company in a non-clerical position, or as a director level or higher level senior manager of the Company, then this Section 7 shall\napply. Employee and POZEN agree that the services rendered by Employee are unique and irreplaceable, and that competitive use and knowledge of any\nConfidential Information would substantially and irreparably injure POZEN's business, prospects and good will. E mployee and POZEN also agree that POZEN's\nbusiness is global in nature due to the type of products and/or services being provided. Therefore, Employee agrees that during the period of Employee's\nemployment with POZEN and for a period of one (1) year thereafter, Employee shall not, directly or indirectly, through any other person, firm, corporation or other\nentity (whether as an officer, director, employee, partner, consultant, holder of equity or debt investment, lender or in any other manner or capacity):\n(a)\ndevelop, sell, market, offer to sell products and/or services anywhere in the world that have the same or similar technologica approach or\ntechnology platform (e.g., same receptors, same mechanism of action, etc.) and have the same indication as those being developed, offered or sold by POZE\non\nthe date of the termination of Employee's employment with POZEN for any reason, provided that the foregoing shall not be violated by Employee's activities\nwith an entity where the portion of the competitive business involved is less than five percent (5%) of the revenues of the portion of the entity that is under\nEmployee's supervision;\n(b)\nsolicit, induce, encourage or attempt to induce or encourage any employee or consultant of POZEN, except Employee's executive assistant, to\nterminate his or her employment or consulting relationship with POZEN, or to breach any other obligation to POZEN (other than advertising not specifically\ntargeted at the Company's employees and serving as a reference upon request), however, notwithstanding the foregoing, Employee may engage in the activities\ndescribed in this Section 7(b) with respect to one executive who worked with Employee in the past and joined the Company without it violating this provision; or\n(c)\ninterfere with, disrupt, alter or attempt to disrupt or alter the relationship, contractual or otherwise, between POZEN and any consultant, contractor,\ncustomer, potential customer, or supplier of POZEN.\nEmployee acknowledges that the foregoing geographic, activity and time limitations contained in this ection 7 are reasonable and properly required for the\nadequate protection of POZEN's business. In the event that any such geographic, activity or time limitation is deemed to be unreasonable by a court, mployee\nshall submit to the reduction of either said activity or time limitation to such activity or period as the court shall deem reasonable. In the event that mployee is in\nviolation of the aforementioned restrictive covenants, then the time limitation thereof shall be extended for a period of time equal to the pendency of such\nproceedings, including appeals.\n8.\nDISCLOSURE OF THIS AGREEMENT. Employee hereby authorizes OZEN to notify others, including but not limited to customers of POZEN and any\nof Employee's future employers, of the terms of this Agreement and Employee's responsibilities under this Agreement.\n20\n9.\nSPECIFIC PERFORMANCE. Employee acknowledges that money damages alone would not adequately compensate POZEN in the event of a\nbreach or threatened breach by Employee of this Agreement, and that, in addition to all other remedies available to POZEN at law or in equity, POZEN shall be\nentitled to injunctive relief for the enforcement of its rights and to an accounting of profits made during the period of such breach.\n10.\nNO RIGHTS GRANTED. Employee understands that nothing in this Agreement shall be deemed to constitute, by implication or otherwise, the\ngrant by POZEN to the employee of any license or other right under any patent, patent application or other intellectual property right or interest belonging to\nPOZEN.\n11.\nSEVERABILITY.\n(a)\nEach of the covenants provided in this Agreement are separate and independent covenants. If any provision of this Agreement shal be determined\nto\nbe invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and any such invalid or unenforceable provision shall be reformed so\nas to be valid and enforceable to the fullest extent permitted by law.\n(b)\nIt is not a defense to the enforcement of any provision of this Agreement that POZEN has breached or failed to perform any obligation or covenant\nhereunder or under any other agreement or understanding between Employee and POZEN.\n12.\nGOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without regard\nto conflict of law rules. All suits and claims shall be made only in state or federal courts located in North Carolina.\n13.\nSUPERSEDES OTHER AGREEMENTS. This Agreement contains the entire agreement of the parties with respect to subject matter hereof and\nsupersedes all previous agreements and understandings between the parties with respect to its subject matter.\n14.\nAMENDMENTS. This Agreement may not be changed, modified, released, discharged, abandoned or otherwise terminated in whole or in part\nexcept by an instrument in writing, agreed to and signed by the Employee and a duly authorized officer of POZEN.\n15.\nACKNOWLEDGEMENTS. THE EMPLOYEE ACKNOWLEDGES THAT (i) THE EMPLOYEE HAS READ AND FULLY UNDERSTANDS THIS\nAGREEMENT; (ii) THE EMPLOYEE HAS BEEN GIVEN THE OPPORTUNITY TO ASK QUESTIONS; (iii) THE EMPLOYEE HAS RECEIVED A COPY OF THIS\nAGREEMENT, THE ORIGINAL OF WHICH WILL BE RETAINED IN THE EMPLOYEE'S PERSONNEL FILE; AND (iv) THE EMPLOYEE'S OBLIGATIONS\nUNDER THIS AGREEMENT SURVIVE THE TERMINATION OF THE EMPLOYEE'S EMPLOYMENT WITH POZEN FOR ANY REASON.\n21\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth below.\nPOZEN INC.\nBy:\nTitle:\nEMPLOYEE:\nAdrian Adams\n(P rint Name)\n(Signature Here)\nDate:\nAddress:\n22	Exhibit B\nEMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON -COMPETE AGREEMENT\nTHIS EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON -COMPETE AGREEMENT (“Agreement”) is made as of the date set forth on the\nsignature page below between POZEN Inc. ( “POZEN ”) , and the person whose name is set forth on the signature page below as Employee (“Employee”).\nIn consideration of Employee’s employment or continued employment by POZEN, with the intention that this Agreement shall apply to the entire period of\nEmployee’s employment with POZEN (including the period prior to the date of this Agreement), Employee hereby agrees as follows:\n1.\nCONFIDENTIAL INFORMATION DEFINED. “ Confidential Information” means trade secrets, proprietary information and materials, and confidential\nknowledge and information which includes, but is not limited to, matters of a technical nature (such as discoveries, ideas, concepts, designs, drawings,\nspecifications, techniques, models, diagrams, test data, scientific methods and know-how, and materials such as reagents, substances, chemical compounds,\nsubcellular constituents, cell or cell lines, organisms and progeny, and mutants, derivatives or replications derived from or relating to any of the foregoing\nmaterials), and matters of a business nature (such as the identity of customers and prospective customers, the nature of work being done for or discussed with\ncustomers or prospective customers, suppliers, marketing techniques and materials, marketing and development plans, pricing or pricing policies, financial\ninformation, plans for further development, and any other information of a similar nature not available to the public).\n“Confidential Information” shall not include information that: (a) was in Employee’s possession or in the public domain before receipt from the Company, as\nevidenced by the then existing publication or other public dissemination of such information in written or other documentary form; (b) becomes available to the\npublic through no fault of Employee; (c) is received in good faith by Employee from a third party who is known to Employee to be not subject to an obligation of\nconfidentiality to the Company or any other party; or (d) is required by a judicial or administrative authority or court having competent jurisdiction to be disclosed\nby Employee, provided that Employee shall promptly notify the Company and not attempt to prevent the Company from opposing or limiting such order.\n2.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF POZEN. Employee acknowledges that, during the period of Employee’s\nemployment with POZEN, Employee has had or will have access to Confidential Information of POZEN. Therefore, Employee agrees that both during and after\nthe period of Employee’s employment with POZEN, Employee shall not, without the prior written approval of POZEN, directly or indirectly (a) reveal, report,\npublish, disclose or transfer any Confidential Information of POZEN to any person or entity; or (b) use any Confidential Information of POZEN for any purpose or\nfor the benefit of any person or entity, except in the good faith performance of Employee’s work for POZEN or to comply with an order from any court of\ncompetent jurisdiction.\n3.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF OTHERS . Employee acknowledges that, during the period of Employee’s\nemployment with POZEN, Employee may have had or will have access to Confidential Information of third parties who have given POZEN the right to use such\nConfidential Information, subject to a non-disclosure agreement between POZEN and such third party. Therefore, Employee agrees that both during and after the\nperiod of Employee’s employment with POZEN, Employee shall not, without the prior written approval of POZEN, directly or indirectly (a) reveal, report, publish,\ndisclose or transfer any Confidential Information of such third parties to any person or entity; or (b) use any Confidential Information of such third parties for any\npurpose or for the benefit of any person or entity, except in the good faith performance of Employee’s work for POZEN or to comply with an order from any court\nof competent jurisdiction.\n-18-\n4.\nPROPERTY OF POZEN. Employee acknowledges and agrees that all Confidential Information of POZEN and all reports, drawings, blueprints,\nmaterials, data, code, notes and other documents and records (other than Employee’s personal address book), whether printed, typed, handwritten, videotaped,\ntransmitted or transcribed on data files or on any other type of media, and whether or not labeled or identified as confidential or proprietary, made or compiled by\nEmployee, or made available to Employee, during the period of Employee employment with POZEN (including the period prior to the date of this Agreement)\nconcerning POZEN’s Confidential Information are and shall remain POZEN’s property and shall be delivered to POZEN within five (5) business days after the\ntermination of such employment with POZEN or at any earlier time on request of POZEN. Employee shall not retain copies of such Confidential Information,\ndocuments and records.\n5.\nPROPRIETARY NOTICES. Employee shall not, and shall not permit any other person to, remove any proprietary or other legends or restrictive\nnotices contained in or included in any Confidential Information.\n6.\nINVENTIONS.\n(a)\nEmployee shall promptly, from time to time, fully inform and disclose to POZEN in writing all inventions, copyrightable material, designs,\nimprovements and discoveries of any kind which Employee now has made, conceived or developed (including prior to the date of this Agreement), or which\nEmployee may later make, conceive or develop, during the period of Employee’s employment with POZEN, which pertain to or relate to POZEN’s business or any\nof the work or businesses carried on by POZEN (“Inventions”). This covenant applies to all such Inventions, whether or not they are eligible for patent, copyright,\ntrademark, trade secret or other legal protection; and whether or not they are conceived and/or developed by Employee alone or with others; and whether or not\nthey are conceived and/or developed during regular working hours; and whether or not they are conceived and/or developed at POZEN’s facility or not.\n(b)\nInventions shall not include any inventions made, conceived or developed by Employee prior to Employee’s employment with POZEN.\n(c)\nAll Inventions shall be the sole and exclusive property of POZEN, and shall be deemed part of the Confidential Information of POZEN for purposes\nof this Agreement, whether or not fixed in a tangible medium of expression. Employee hereby assigns all Employee’s rights in all Inventions and in all related\npatents, copyrights and trademarks, trade secrets and other proprietary rights therein to POZEN. Without limiting the foregoing, Employee agrees that any\ncopyrightable material shall be deemed to be “works made for hire” and that POZEN shall be deemed the author of such works under the United States Copyright\nAct, provided that in the event and to the extent such works are determined not to constitute “works made for hire”, Employee hereby irrevocably assigns and\ntransfers to POZEN all right, title and interest in such works.\n(d)\nEmployee shall assist and cooperate with POZEN, both during and after the period of Employee’s employment with POZEN, at POZEN’s sole\nexpense, to allow POZEN to obtain, maintain and enforce patent, copyright, trademark, trade secret and other legal protection for the Inventions. Employee shall\nsign such truthful documents, and do such things necessary, to obtain such protection and to vest POZEN with full and exclusive title in all Inventions against\ninfringement by others. Employee hereby appoints the Secretary of POZEN as Employee’s attorney-in-fact to execute any truthful documents on Employee’s\nbehalf for this purpose.\n-19-\n(e)\nEmployee shall not be entitled to any additional compensation for any and all Inventions made during the period of Employee’s employment with\nPOZEN.\n7.\nCOVENANT NOT TO COMPETE. If Employee is, at any time during Employee’s period of employment with POZEN, employed in the discovery or\ndevelopment areas of the Company in a non-clerical position, or as a director level or higher level senior manager of the Company, then this Section 7 shall\napply. Employee and POZEN agree that the services rendered by Employee are unique and irreplaceable, and that competitive use and knowledge of any\nConfidential Information would substantially and irreparably injure POZEN’s business, prospects and good will. Employee and POZEN also agree that POZEN’s\nbusiness is global in nature due to the type of products and/or services being provided. Therefore, Employee agrees that during the period of Employee’s\nemployment with POZEN and for a period of one (1) year thereafter, Employee shall not, directly or indirectly, through any other person, firm, corporation or other\nentity (whether as an officer, director, employee, partner, consultant, holder of equity or debt investment, lender or in any other manner or capacity):\n(a)\ndevelop, sell, market, offer to sell products and/or services anywhere in the world that have the same or similar technological approach or\ntechnology platform (e.g. , s ame r ec eptors, same mechanism of action, etc.) and have the same indication as those being developed, offered or sold by POZEN\non the date of the termination of Employee’s employment with POZEN for any reason, provided that the foregoing shall not be violated by Employee’s activities\nwith an entity where the portion of the competitive business involved is less than five percent (5%) of the revenues of the portion of the entity that is under\nEmployee’s supervision;\n(b)\nsolicit, induce, encourage or attempt to induce or encourage any employee or consultant of POZEN, except Employee’s executive assistant, to\nterminate his or her employment or consulting relationship with POZEN, or to breach any other obligation to POZEN (other than advertising not specifically\ntargeted at the Company’s employees and serving as a reference upon request), however, notwithstanding the foregoing, Employee may engage in the activities\ndescribed in this Section 7(b) with respect to one executive who worked with Employee in the past and joined the Company without it violating this provision; or\n(c)\ninterfere with, disrupt, alter or attempt to disrupt or alter the relationship, contractual or otherwise, between POZEN and any consultant, contractor,\ncustomer, potential customer, or supplier of POZEN.\nEmployee acknowledges that the foregoing geographic, activity and time limitations contained in this Section 7 are reasonable and properly required for the\nadequate protection of POZEN’s business. In the event that any such geographic, activity or time limitation is deemed to be unreasonable by a court, Employee\nshall submit to the reduction of either said activity or time limitation to such activity or period as the court shall deem reasonable. In the event that Employee is in\nviolation of the aforementioned restrictive covenants, then the time limitation thereof shall be extended for a period of time equal to the pendency of such\nproceedings, including appeals.\n8.\nDISCLOSURE OF THIS AGREEMENT. Employee hereby authorizes POZEN to notify others, including but not limited to customers of POZEN and any\nof Employee’s future employers, of the terms of this Agreement and Employee’s responsibilities under this Agreement.\n-20-\n9.\nSPECIFIC PERFORMANCE. Employee acknowledges that money damages alone would not adequately compensate POZEN in the event of a\nbreach or threatened breach by Employee of this Agreement, and that, in addition to all other remedies available to POZEN at law or in equity, POZEN shall be\nentitled to injunctive relief for the enforcement of its rights and to an accounting of profits made during the period of such breach.\n10.\nNO RIGHTS GRANTED. Employee understands that nothing in this Agreement shall be deemed to constitute, by implication or otherwise, the\ngrant by POZEN to the employee of any license or other right under any patent, patent application or other intellectual property right or interest belonging to\nPOZEN.\n11.\nSEVERABILITY.\n(a)\nEach of the covenants provided in this Agreement are separate and independent covenants. If any provision of this Agreement shall be determined\nto be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and any such invalid or unenforceable provision shall be reformed so\nas to be valid and enforceable to the fullest extent permitted by law.\n(b)\nIt is not a defense to the enforcement of any provision of this Agreement that POZEN has breached or failed to perform any obligation or covenant\nhereunder or under any other agreement or understanding between Employee and POZEN.\n12.\nGOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without regard\nto conflict of law rules. All suits and claims shall be made only in state or federal courts located in North Carolina.\n13.\nSUPERSEDES OTHER AGREEMENTS. This Agreement contains the entire agreement of the parties with respect to subject matter hereof and\nsupersedes all previous agreements and understandings between the parties with respect to its subject matter.\n14.\nAMENDMENTS. This Agreement may not be changed, modified, released, discharged, abandoned or otherwise terminated in whole or in part\nexcept by an instrument in writing, agreed to and signed by the Employee and a duly authorized officer of POZEN.\n15.\nACKNOWLEDGEMENTS. THE EMPLOYEE ACKNOWLEDGES THAT (i) THE EMPLOYEE HAS READ AND FULLY UNDERSTANDS THIS\nAGREEMENT; (ii) THE EMPLOYEE HAS BEEN GIVEN THE OPPORTUNITY TO ASK QUESTIONS; (iii) THE EMPLOYEE HAS RECEIVED A COPY OF THIS\nAGREEMENT, THE ORIGINAL OF WHICH WILL BE RETAINED IN THE EMPLOYEE ’S PERSONNEL FILE; AND (iv) THE EMPLOYEE’S OBLIGATIONS\nUNDER THIS AGREEMENT SURVIVE THE TERMINATION OF THE EMPLOYEE’S EMPLOYMENT WITH POZEN FOR ANY REASON .\n-21-\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth below.\nPOZEN INC.\nBy:\nTitle:\nEMPLOYEE:\nAdrian Adams\n(Print Name)\n(Signature Here)\nDate:\nAddress:\n-22-
+3e8ca94003354022fd0f031eea25aec5.pdf	effective_date jurisdiction party term	EX-10.6 2 dex106.htm EMPLOYMENT, CONFIDENTIALITY AND NONCOMPETE AGREEMENT\nExhibit 10.6\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETE AGREEMENT\nThis Employment, Confidentiality and Noncompete Agreement (“Agreement”) is made and entered into effective as of the 10 day of\nJanuary, 2007, by and between Build-A -Bear Workshop, Inc., a Delaware corporation (“Company”), and Dave Finnegan (“Employee”).\nWHEREAS, Company desires to employ and Employee desires to be employed as the Chief Information Bear of Company.\nWHEREAS, Company has pioneered the retail concept of “make your own” stuff plush toys, including animals and dolls, and is engaged\nin, among other things, the business of production, marketing, promotion and distribution of plush stuff toys, clothing, accessories and similar items,\nincluding without limitation, the ownership, management, franchising, leasing and development of retail stores in which the basic operation is the\nselling of such items, and the promotion of the related concepts and characters through merchandising and mass media. The Company is\nheadquartered and its principal place of business are located in, and this Agreement is being signed in, St. Louis, Missouri.\nWHEREAS, Company conducts business in selected locations throughout the United States and internationally through franchise\narrangements.\nWHEREAS, Company has expended a great deal of time, money and effort to develop and maintain its proprietary Confidential\nInformation (as defined herein) which is material to Company and which, if misused or disclosed, could be very harmful to Company’s business.\nWHEREAS, the success of Company depends to a substantial extent upon the protection of its Confidential Information and goodwill by\nall of its employees.\nWHEREAS, Company compensates its employees to, among other things, develop and preserve goodwill with its customers, landlords,\nsuppliers and partners on Company’s behalf and business information for Company’s ownership and use.\nWHEREAS, if Employee were to leave Company, Company, in all fairness, would need certain protections in order to prevent\ncompetitors of Company from gaining an unfair competitive advantage over Company or diverting goodwill from Company, or to prevent Employee\nfrom misusing or misappropriating the Confidential Information.\nNOW, THEREFORE, in consideration of the compensation and other benefits of Employee’s employment by Company and the recitals,\nmutual covenants and agreements hereinafter set forth, Employee and Company agree as follows:\n1. Employment Services.\n(a) Employee is hereby employed by Company, and Employee hereby accepts such employment, upon the terms and conditions\nhereinafter set forth. Employee shall serve\nth\nas Chief Information Bear, during the Employment Period, on a full-time basis. Employee shall carry out such duties as are assigned to him by\nCompany’s Chief Executive Bear.\n(b) Employee agrees that throughout Employee’s employment with Company, Employee will (i) faithfully render such services as\nmay be delegated to Employee by Company, (ii) devote substantially all of Employee’s entire business time, good faith, best efforts, ability, skill and\nattention to Company’s business, and (iii) follow and act in accordance with all of the rules, policies and procedures of Company, including but not\nlimited to working hours, sales and promotion policies, and specific Company rules. Company further agrees that it shall not during the Initial Term\nof this Agreement require Employee to relocate his residence outside of the St. Louis metropolitan area.\n(c) “Company” means Build-A-Bear Workshop, Inc. or one of its Subsidiaries, whichever is Employee’s employer. The term\n“Subsidiary” means any corporation, joint venture or other business organization in which Build-A-Bear Workshop, Inc. now or hereafter, directly or\nindirectly, owns or controls more than fifty percent (50%) interest.\n2. Term of Employment. The term of this Agreement shall commence on the date first set forth above, and shall end on the third\nanniversary hereof, unless sooner terminated as provided in Section 4 hereof (the “Initial Term”). Following the Initial Term, this Agreement shall\nrenew for successive three-year periods (each a “Renewal Period”; collectively, the Initial Term and each Renewal Period, the “Employment\nPeriod”), unless either party notifies the other party of its decision not to renew the Agreement no later than ninety (90) days prior to the third\nanniversary date, or unless the Agreement is sooner terminated as provided in Section 4 hereof. For the avoidance of doubt, if either party provides\nnotice of non-renewal of the Agreement no later than ninety (90) days prior to the third anniversary date (either at the end of the Initial Term or at the\nend of any Renewal Period), then the Agreement shall expire on that anniversary date.\n3. Compensation.\n(a) Base Salary. During the Employment Period, Company shall pay Employee as compensation for his services an annual base\nsalary of not less than Two Hundred Twenty Thousand Dollars ($220,000), payable in accordance with Company’s usual practices. Employee’s\nannual base salary rate shall be reviewed by Company’s Compensation Committee at least annually for increase following each fiscal year so that\nEmployee’s salary will be commensurate for similarly situated executives with firms similarly situated to Company; provided, however, that if\nEmployee’s individualized performance targets (set for each fiscal year by Employee and Employee’s team leader) are achieved, Employee’s annual\nbase salary rate shall not be subject to decrease at any time during the Employment Period and shall be subject to annual increase by no less than the\naverage percentage increase given to all other Company executive employees for such fiscal year (the “Average Increase”).\n(b) Bonus. Should Company exceed its sales, profits and other objectives for any fiscal year, Employee shall be eligible to\nreceive a bonus for such fiscal year in the amount as determined by the Compensation Committee of the Board of Directors; provided however the\n2\npotential bonus opportunity for Employee in any given fiscal year will be set by the Compensation Committee such that, if the Company exceeds its\nobjectives, the Company will pay Employee not less than thirty five percent (35%) of Employee’s annual base pay for such fiscal year. Any bonus\npayable to Employee will be payable in cash, stock or stock options, or combination thereof, all as determined by the Board of Directors or any duly\nauthorized committee thereof, and unless a different payout schedule is applicable for all executive employees of the Company, any such bonus\npayment will be payable in a single, lump sum payment. In the event of termination of this Agreement because of Employee’s death or disability (as\ndefined by Section 4(b)), termination by the Company without Cause pursuant to Section 4.1(c), or pursuant to Employee’s right to terminate this\nAgreement for Good Reason under Section 4.1(d), the bonus criteria shall not change and any bonus shall be pro-rated based on the number of full\ncalendar weeks during the applicable fiscal year during which Employee was employed hereunder.\nSuch bonus, if any, shall be payable after Company’s accountants have determined the sales and profits and have issued their\naudit report with respect thereto for the applicable fiscal year, which determination shall be binding on the parties. Any such bonus shall be paid\nwithin seventy-five (75) days after the end of each calendar year, regardless of Employee’s employment status at the time payment is due. If timely\npayment is not made, the Company shall indemnify the Employee against any additional tax liability that the Employee may incur proximately as a\nresult of the payment being made after the seventy-five day period.\n(c) Stock Options. Employee may have been granted in the past, and/or may in the future be granted, a certain number of\nrestricted shares and/or stock options to purchase shares of Company’s common stock (the “Common Stock”), pursuant to the terms set forth more\nparticularly in the stock option and/or restricted stock agreements (“Stock Agreement”) used in connection with the Build-A-Bear Workshop, Inc.\n2000 Stock Option Plan (or any successor plan) (the “Plan”). The Plan and applicable Stock Agreement(s) shall govern any grants of restricted\nshares and/or stock options to purchase shares of Company’s Common Stock.\n(d) Discounts. Employee and his immediate family will be entitled to a 20% discount for all merchandise purchased at\nCompany’s stores.\n(e) Vacation. Employee shall be entitled to paid vacation and paid sick leave on the same basis as may from time to time apply to\nother Company executive employees generally. Vacations will be scheduled with the approval of Company’s Chief Executive Bear, who may block\nout certain periods of time during which vacations may not be taken, including preceding Valentine’s Day, preceding Easter, from November 1\nthrough December 31, during Company inventory, and just prior to store openings. One-third of one year’s vacation (or any part of it) may be carried\nover to the next year; provided that such carry over is used in the first calendar quarter of the next year. Unless approved by the Chief Executive\nBear, all unused vacation shall be forfeited. No more than two weeks of vacation can be taken at one time. Employee shall also be entitled to one\n(1) additional day per calendar year of paid vacation to be taken in the month of his birthday.\n(f) Other. Employee shall be eligible for such other perquisites as may from time to time be awarded to Employee by Company\npayable at such times and in such amounts\n3\nas Company, in its sole discretion, may determine. All such compensation shall be subject to customary withholding taxes and other employment\ntaxes as required with respect thereto. During the Employment Period, Employee shall also qualify for all rights and benefits for which Employee\nmay be eligible under any benefit plans including group life, medical, health, dental and/or disability insurance or other benefits (“Welfare Benefits”)\nwhich are provided for employees generally at his then current location of employment. Employee may, in his sole discretion, decline any perquisite,\nWelfare Benefit, proposed annual salary increase, or bonus payment.\n4. Termination of Employment. Prior to the expiration of the Employment Period, this Agreement and Employee’s employment may be\nterminated as follows:\n(a) Upon Employee’s death;\n(b) By the Company upon thirty (30) day’s prior written notice to Employee in the event Employee, by reason of permanent\nphysical or mental disability (which shall be determined by a physician selected by Company or its insurers and acceptable to Employee or\nEmployee’s legal representative (such agreement as to acceptability not to be withheld unreasonably), shall be unable to perform the essential\nfunctions of his position, with or without reasonable accommodation, for six (6) consecutive months; provided, however, Employee shall not be\nterminated due to permanent physical or mental disability unless or until said disability also entitles Employee to benefits under such disability\ninsurance policy as is provided to Employee by Company, provided however that continued entitlement to disability benefits coverage shall be not\nrequired where Employee fails to qualify for benefits coverage continuation due to an act or omission by Employee.\n(c) By the Company with or without Cause. For the purposes of this Agreement, “Cause” shall mean: (i) Employee’s engagement\nin any conduct which, in Company’s reasonable determination, constitutes gross misconduct, or is illegal, unethical, improper provided such conduct\nbrings detrimental notoriety or material harm to Company; (ii) gross negligence or willful misconduct; (iii) the Company has good reason to believe\nthat Employee has committed a felony or a crime involving moral turpitude; (iv) a material breach of a material provision of this Agreement by\nEmployee, or (v) failure of Employee to follow a written directive of the Chief Executive Bear or the Board of Directors within thirty (30) days after\nreceiving such notice, provided that such directive is reasonable in scope or is otherwise within the Chief Executive Bear’s or the Board’s reasonable\nbusiness judgment, and is reasonably within Employee’s control; provided Employee does not cure said conduct or breach (to the extent curable)\nwithin thirty (30) days after the Chief Executive Bear or the Board of Directors provides Employee with written notice of said conduct or breach. In\nthe event of termination with cause, the Employee will be afforded an opportunity prior to the actual date of termination to discuss the matter with\nthe Company.\n(d) By the Employee with or without Good Reason. For purposes of this Agreement, “Good Reason” shall mean a material\nbreach of a material provision of this Agreement by Company, provided Company does not cure said breach within thirty (30) days after Employee\nprovides the Board of Directors with written notice of the breach.\n4\n4.2 Impact of Termination.\n(a) Survival of Covenants. Upon termination of this Agreement, all rights and obligations of the parties hereunder shall cease,\nexcept termination of employment pursuant to Section 4 or otherwise shall not terminate or otherwise affect the rights and obligations of the parties\npursuant to Sections 5 through 13 hereof.\n(b) Severance. In the event during the Employment Period (i) the Company terminates Employee’s employment without Cause\npursuant to Section 4.1(c) or (ii) the Employee terminates his employment for Good Reason pursuant to Section 4.1(d), the Company shall continue\nhis base salary for a period of twelve (12) months from termination, such payments to be reduced by the amount of any compensation from a\nsubsequent employer during such period. Employee shall accept these payments in full discharge of all obligations of any kind which Company has\nto him except obligations, if any (i) for post-employment benefits expressly provided under this Agreement and/or at law, (ii) to repurchase any\ncapital stock of Company owned by Employee (as may or may not be set forth in the applicable stock agreement); (iii) for indemnification under\nseparate agreement by virtue of Employee’s status as a director/officer of the Company; or (iv) for benefits otherwise provided under the Deferred\nCompensation plan. Employee shall also be eligible to receive a bonus with respect to the year of termination as provided in Section 3(b).\n(c) Termination due to Expiration. If the Agreement expires either at the end of the Initial Term or at the end of any Renewal\nPeriod, due to the issuance of notice of non-renewal by either party under Section 2, then no severance under Section 4(b) shall be paid to the\nEmployee and his Employment shall terminate upon the anniversary date.\n(d) Upon termination or expiration of this Agreement for any reason, Employee shall be provided with such Welfare Benefits\ncontinuation notices, rights and obligations as may be required under federal or state law (including COBRA).\n5. Confidential Information.\n(a) Employee agrees to keep secret and confidential, and not to use or disclose to any third parties, except as directly required for\nEmployee to perform Employee’s employment responsibilities for Company, any of Company’s proprietary Confidential Information.\n(b) Employee acknowledges and confirms that certain data and other information (whether in human or machine readable form)\nthat comes into his possession or knowledge (whether before or after the date of this Agreement) and which was obtained from Company, or\nobtained by Employee for or on behalf of Company, and which is identified herein (the “Confidential Information”) is the secret, confidential\nproperty of Company. This Confidential Information includes, but is not limited to:\n(1) lists or other identification of customers or prospective customers of Company;\n5\n(2) lists or other identification of sources or prospective sources of Company’s products or components thereof, its landlords\nand prospective landlords and its current and prospective alliance, marketing and media partners (and key individuals employed\nor engaged by such parties);\n(3) all compilations of information, correspondence, designs, drawings, files, formulae, lists, machines, maps, methods,\nmodels, studies, surveys, scripts, screenplays, artwork, sketches, notes or other writings, plans, leases, records and reports;\n(4) financial, sales and marketing data relating to Company or to the industry or other areas pertaining to Company’s\nactivities and contemplated activities (including, without limitation, leasing, manufacturing, transportation, distribution and sales\ncosts and non-public pricing information);\n(5) equipment, materials, designs, procedures, processes, and techniques used in, or related to, the development,\nmanufacture, assembly, fabrication or other production and quality control of Company’s products, stores and services;\n(6) Company’s relations with its past, current and prospective customers, suppliers, landlords, alliance, marketing and media\npartners and the nature and type of products or services rendered to, received from or developed with such parties or prospective\nparties;\n(7) Company’s relations with its employees (including, without limitation, salaries, job classifications and skill levels); and\n(8) any other information designated by Company to be confidential, secret and/or proprietary (including without limitation,\ninformation provided by customers, suppliers and alliance partners of Company).\nNotwithstanding the foregoing, the term Confidential Information shall not consist of any data or other information which has been made publicly\navailable or otherwise placed in the public domain other than by Employee in violation of this Agreement.\n(c) During the Employment Period, Employee will not copy, reproduce or otherwise duplicate, record, abstract, summarize or\notherwise use, any papers, records, reports, studies, computer printouts, equipment, tools or other property owned by Company except as expressly\npermitted by Company in writing or required for the proper performance of his duties on behalf of Company.\n6. Post-Termination Restrictions. Employee recognizes that (i) Company has spent substantial money, time and effort over the years in\ndeveloping and solidifying its\n6\nrelationships with its customers, suppliers, landlords and alliance, marketing and media partners and in developing its Confidential Information;\n(ii) long-term customer, landlord, supplier and partner relationships often can be difficult to develop and require a significant investment of time,\neffort and expense; (iii) Company has paid its employees to, among other things, develop and preserve business information, customer, landlord,\nvendor and partner goodwill, customer, landlord, vendor and partner loyalty and customer, landlord, vendor and partner contacts for and on behalf of\nCompany; and (iv) Company is hereby agreeing to employ and pay Employee based upon Employee’s assurances and promises not to divert\ngoodwill of customers, landlords, suppliers or partners of Company, either individually or on a combined basis, or to put himself in a position\nfollowing Employee’s employment with Company in which the confidentiality of Company’s Confidential Information might somehow be\ncompromised. Accordingly, Employee agrees that during the Employment Period and for the period of time set forth below following termination of\nemployment, provided termination is in accordance with the terms of paragraph 4(b), (c), or (d), or due to expiration of the Agreement due to non-\nrenewal by either party, Employee will not, directly or indirectly (whether as owner, partner, consultant, employee or otherwise):\n(a) for one (1) year, engage in, assist or have an interest in, or enter the employment of or act as an agent, advisor or consultant\nfor, any person or entity which is engaged in, or will be engaged in, the development, manufacture, supplying or sale of a product, process, service or\ndevelopment which is competitive with a product, process, service or development on which Employee worked or with respect to which Employee\nhas or had access to Confidential Information while at Company (“Restricted Activity”), and which is located within the United States or within any\ncountry where the Company has established a retail presence either directly or through a franchise arrangement; or\n(b) for one (1) year, induce or attempt to induce any employee, consultant, partner or advisor of Company to accept employment\nor an affiliation with any entity engaged in a Restricted Activity;\nprovided, however, that following termination of his employment, Employee shall be entitled to be an employee of an entity that engages in\nRestricted Activity so long as: (i) the sale of stuffed plush toys is not a material business of the entity; (ii) Employee has no direct or personal\ninvolvement in the sale of stuffed plush toys ; and (iii) neither Employee, his relatives, nor any other entities with which he is affiliated own more\nthan 1% of the entity. As used in this paragraph 6, “material business” shall mean that either (A) greater than 10% of annual revenues received by\nsuch entity were derived from the sale of stuffed plush toys and related products, or (B) the annual revenues received or projected to be received by\nsuch entity from the sale of stuffed plush toys and related products exceeded $10 million, or (C) or the entity otherwise annually derives or is\nprojected to derive annual revenues in excess of $5 million from a retail concept that is similar in any material regard to Company.\n7. Acknowledgment Regarding Restrictions. Employee recognizes and agrees that the restraints contained in Section 6 (both separately\nand in total), including the geographic scope thereof in light of the Company’s marketing efforts, are reasonable and enforceable in view of\nCompany’s legitimate interests in protecting its Confidential Information and customer goodwill and the limited scope of the restrictions in\nSection 6.\n7\n8. Inventions.\nAny and all ideas, inventions, discoveries, patents, patent applications, continuation-in-part patent applications, divisional patent\napplications, technology, copyrights, derivative works, trademarks, service marks, improvements, trade secrets and the like (collectively,\n“Inventions”), which are developed, conceived, created, discovered, learned, produced and/or otherwise generated by Employee, whether\nindividually or otherwise, during the time that Employee is employed by Company, whether or not during working hours, that relate to (i) current\nand anticipated businesses and/or activities of Company, (ii) the current and anticipated research or development of Company, or (iii) any work\nperformed by Employee for Company, shall be the sole and exclusive property of Company, and Company shall own any and all right, title and\ninterest to such Inventions. Employee assigns, and agrees to assign to Company whenever so requested by Company, any and all right, title and\ninterest in and to any such Invention, at Company’s expense, and Employee agrees to execute any and all applications, assignments or other\ninstruments which Company deems desirable or necessary to protect such interests, at Company’s expense.\n(b) Employee acknowledges that as part of his work for the Company he may be asked to create, or contribute to the creation of,\ncomputer programs, documentation and other copyrightable works. Employee hereby agrees that any and all computer programs, documentation and\nother copyrightable materials that he has prepared or worked on for the Company, or is asked to prepare or work on by the Company, shall be treated\nas and shall be a “work made for hire,” for the exclusive ownership and benefit of Company according to the copyright laws of the United States,\nincluding, but not limited to, Sections 101 and 201 of Title 17 of the U.S . Code (“U.S .C.”) as well as according to similar foreign laws. Company\nshall have the exclusive right to register the copyrights in all such works in its name as the owner and author of such works and shall have the\nexclusive rights conveyed under 17 U.S.C. §§ 106 and 106A including, but not limited to, the right to make all uses of the works in which attribution\nor integrity rights may be implicated. Without in any way limiting the foregoing, to the extent the works are not treated as works made for hire under\nany applicable law, Employee hereby irrevocably assigns, transfers, and conveys to Company and its successors and assigns any and all worldwide\nright, title, and interest that Employee may now or in the future have in or to the works, including, but not limited to, all ownership, U.S . and foreign\ncopyrights, all treaty, convention, statutory, and common law rights under the law of any U.S. or foreign jurisdiction, the right to sue for past,\npresent, and future infringement, and moral, attribution, and integrity rights. Employee hereby expressly and forever irrevocably waives any and all\nrights that he may have arising under 17 U.S.C . §§ 106A, rights that may arise under any federal, state, or foreign law that conveys rights that are\nsimilar in nature to those conveyed under 17 U.S.C . §§ 106A, and any other type of moral right or droit moral.\n9. Company Property. Employee acknowledges that any and all notes, records, sketches, computer diskettes, training materials and other\ndocuments relating to Company obtained by or provided to Employee, or otherwise made, produced or compiled during the Employment Period,\nregardless of the type of medium in which they are preserved, are the sole and exclusive property of Company and shall be surrendered to Company\nupon Employee’s termination of employment and on demand at any time by Company.\n8\n10. Nondisparagement. Employee agrees that he will not in any way disparage Company or its affiliated entities, officers, or directors.\nFurther, Employee agrees that he will neither make nor solicit any comments, statements, or the like to the media or to third parties that may be\nconsidered to be derogatory or detrimental to the good name or business reputation of Company or any of its affiliated entities, officers or directors.\n11. Non-Waiver of Rights. Either party’s failure to enforce at any time any of the provisions of this Agreement or to require at any time\nperformance by the other party of any of the provisions hereof shall in no way be construed to be a waiver of such provisions or to affect either the\nvalidity of this Agreement, or any part hereof, or the right of the non-breaching party thereafter to enforce each and every provision in accordance\nwith the terms of this Agreement.\n12. Company’s Right to Injunctive Relief. In the event of a breach or threatened breach of any of Employee’s duties and obligations\nunder the terms and provisions of Sections 5, 6, or 8 hereof, Company shall be entitled, in addition to any other legal or equitable remedies it may\nhave in connection therewith (including any right to damages that it may suffer), to temporary, preliminary and permanent injunctive relief\nrestraining such breach or threatened breach. Employee hereby expressly acknowledges that the harm which might result to Company’s business as a\nresult of any noncompliance by Employee with any of the provisions of Sections 5, 6 or 8 would be largely irreparable. Employee specifically agrees\nthat if there is a question as to the enforceability of any of the provisions of Sections 5, 6 or 8 hereof, Employee will not engage in any conduct\ninconsistent with or contrary to such Sections until after the question has been resolved by a final judgment of a court of competent jurisdiction.\n13. Judicial Enforcement. If any provision of this Agreement is adjudicated to be invalid or unenforceable under applicable law in any\njurisdiction, the validity or enforceability of the remaining provisions thereof shall be unaffected as to such jurisdiction and such adjudication shall\nnot affect the validity or enforceability of such provisions in any other jurisdiction. To the extent that any provision of this Agreement is adjudicated\nto be invalid or unenforceable because it is overbroad, that provision shall not be void but rather shall be limited only to the extent required by\napplicable law and enforced as so limited. The parties expressly acknowledge and agree that this Section is reasonable in view of the parties’\nrespective interests.\n14. Employee Representations. Employee represents that the execution and delivery of the Agreement and Employee’s employment with\nCompany do not violate any previous employment agreement or other contractual obligation of Employee. Employee further represents and agrees\nthat he will not, during his employment with Company, improperly use or disclose any proprietary information or trade secrets of former employers\nand will not bring on to the premises of the Company any unpublished documents or any property belonging to his former employers unless\nconsented to in writing by such employers.\n15. Amendments. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing\nspecifically referring hereto, and signed by the parties hereto. This Agreement supersedes all prior agreements and understandings\n9\nbetween Employee and Company to the extent that any such agreements or understandings conflict with the terms of this Agreement.\n16. Assignments. This Agreement shall be freely assignable by Company to and shall inure to the benefit of, and be binding upon,\nCompany, its affiliates, successors and assigns and/or any other entity which shall succeed to the business presently being conducted by Company.\nBeing a contract for personal services, neither this Agreement nor any rights hereunder shall be assigned by Employee.\n17. Choice of Forum and Governing Law. In light of Company’s substantial contacts with the State of Missouri, the parties’ interests in\nensuring that disputes regarding the interpretation, validity and enforceability of this Agreement are resolved on a uniform basis, and Company’s\nexecution of, and the making of, this Agreement in Missouri, the parties agree that: (i) any litigation involving any noncompliance with or breach of\nthe Agreement, or regarding the interpretation, validity and/or enforceability of the Agreement, shall be filed and conducted in the state or federal\ncourts in St. Louis City or County, Missouri; and (ii) the Agreement shall be interpreted in accordance with and governed by the laws of the State of\nMissouri, without regard for any conflict of law principles.\n18. Notices. Except as otherwise provided for herein, any notices to be given by either party to the other shall be affected by personal\ndelivery in writing or by mail, registered or certified, postage prepaid, with return receipt requested. Mailed notices shall be addressed as follows:\na.\nIf to Company:\nMaxine Clark\nChief Executive Bear\n1954 Innerbelt Business Center\nSt. Louis, MO 63114\nb.\nIf to Employee:\n18. Arbitration. Any controversy or claim arising out of, or relating to this Agreement, the breach thereof, or Employee’s\nemployment by Company, shall, at Company’s sole option, be settled by binding arbitration in the County of St. Louis in accordance with\nthe rules then in force of the American Arbitration Association, and judgment upon the award rendered may be entered and enforced in\nany court having jurisdiction thereof. The controversies or claims subject to arbitration at Company’s option under this Agreement include,\nwithout limitation, those arising under Title VII of the Civil Rights Act of 1964, 42 U.S .C . Section 1981, the Age Discrimination in\nEmployment Act, the Americans with Disabilities Act, the Family and medical Leave Act, the Worker Adjustment and Retraining\n10\nNotification Act, the Missouri Human Rights Act, local laws governing employment, and the statutory and/or common law of contract and\ntort. In the event Employee commences any action in court which Company has the right to submit to binding arbitration, Company shall\nhave sixty (60) days from the date of service of a summons and complaint upon Company to direct in writing that all or any part of the\ndispute be arbitrated. Any remedy available in any court action shall also be available in arbitration.\n19. Headings. Section headings are provided in this Agreement for convenience only and shall not be deemed to substantively alter the\ncontent of such sections.\nPLEASE NOTE: BY SIGNING THIS AGREEMENT, EMPLOYEE IS HEREBY CERTIFYING THAT EMPLOYEE (A) HAS\nRECEIVED A COPY OF THIS AGREEMENT FOR REVIEW AND STUDY BEFORE EXECUTING IT; (B) HAS READ THIS\nAGREEMENT CAREFULLY BEFORE SIGNING IT; (C) HAS HAD SUFFICIENT OPPORTUNITY BEFORE SIGNING THE\nAGREEMENT TO ASK ANY QUESTIONS EMPLOYEE HAS ABOUT THE AGREEMENT AND HAS RECEIVED SATISFACTORY\nANSWERS TO ALL SUCH QUESTIONS; AND (D) UNDERSTANDS EMPLOYEE’S RIGHTS AND OBLIGATIONS UNDER THE\nAGREEMENT.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nTHIS AGREEMENT CONTAINS A BINDING ARBIRTARTION PROVISION WHICH MAY BE ENFORCED BY\nCOMPANY.\n/s/ David Finnegan\nDave Finnegan\nAddress:\nBUILD-A-BEAR WORKSHOP, INC.\nBy: /s/ Maxine Clark\nName: Maxine Clark\nTitle: Chief Executive Bear\n11	EX-10.6 2 dex106.htm EMPLOYMENT, CONFIDENTIALITY AND NONCOMPETE AGREEMENT\nExhibit 10.6\nEMPILOYMENT, CONFIDENTIALITY AND NONCOMPETE AGREEMENT\nThis Employment, Confidentiality and Noncompete Agreement (“Agreement”) is made and entered into effective as of the 10t day of\nJanuary, 2007, by and between Build-A-Bear Workshop, Inc., a Delaware corporation (“Company”), and Dave Finnegan (“Employee”).\nWHEREAS, Company desires to employ and Employee desires to be employed as the Chief Information Bear of Company.\nWHEREAS, Company has pioneered the retail concept of “make your own” stuff plush toys, including animals and dolls, and is engaged\nin, among other things, the business of production, marketing, promotion and distribution of plush stuff toys, clothing, accessories and similar items,\nincluding without limitation, the ownership, management, franchising, leasing and development of retail stores in which the basic operation is the\nselling of such items, and the promotion of the related concepts and characters through merchandising and mass media. The Company is\nheadquartered and its principal place of business are located in, and this Agreement is being signed in, St. Louis, Missouri.\nWHEREAS, Company conducts business in selected locations throughout the United States and internationally through franchise\narrangements.\nWHEREAS, Company has expended a great deal of time, money and effort to develop and maintain its proprietary Confidential\nInformation (as defined herein) which is material to Company and which, if misused or disclosed, could be very harmful to Company’s business.\nWHEREAS, the success of Company depends to a substantial extent upon the protection of its Confidential Information and goodwill by\nall of its employees.\nWHEREAS, Company compensates its employees to, among other things, develop and preserve goodwill with its customers, landlords,\nsuppliers and partners on Company’s behalf and business information for Company’s ownership and use.\nWHEREAS, if Employee were to leave Company, Company, in all fairness, would need certain protections in order to prevent\ncompetitors of Company from gaining an unfair competitive advantage over Company or diverting goodwill from Company, or to prevent Employee\nfrom misusing or misappropriating the Confidential Information.\nNOW, THEREFORE, in consideration of the compensation and other benefits of Employee’s employment by Company and the recitals,\nmutual covenants and agreements hereinafter set forth, Employee and Company agree as follows:\n1. Employment Services.\n(a) Employee is hereby employed by Company, and Employee hereby accepts such employment, upon the terms and conditions\nhereinafter set forth. Employee shall serve\nas Chief Information Bear, during the Employment Period, on a full-time basis. Employee shall carry out such duties as are assigned to him by\nCompany’s Chief Executive Bear.\n(b) Employee agrees that throughout Employee’s employment with Company, Employee will (i) faithfully render such services as\nmay be delegated to Employee by Company, (ii) devote substantially all of Employee’s entire business time, good faith, best efforts, ability, skill and\nattention to Company’s business, and (iii) follow and act in accordance with all of the rules, policies and procedures of Company, including but not\nlimited to working hours, sales and promotion policies, and specific Company rules. Company further agrees that it shall not during the Initial Term\nof this Agreement require Employee to relocate his residence outside of the St. Louis metropolitan area.\n(c) “Company” means Build-A-Bear Workshop, Inc. or one of its Subsidiaries, whichever is Employee’s employer. The term\n“Subsidiary” means any corporation, joint venture or other business organization in which Build-A-Bear Workshop, Inc. now or hereafter, directly or\nindirectly, owns or controls more than fifty percent (50%) interest.\n2. Term of Employment. The term of this Agreement shall commence on the date first set forth above, and shall end on the third\nanniversary hereof, unless sooner terminated as provided in Section 4 hereof (the “Initial Term”). Following the Initial Term, this Agreement shall\nrenew for successive three-year periods (each a “Renewal Period”; collectively, the Initial Term and each Renewal Period, the “Employment\nPeriod”), unless either party notifies the other party of its decision not to renew the Agreement no later than ninety (90) days prior to the third\nanniversary date, or unless the Agreement is sooner terminated as provided in Section 4 hereof. For the avoidance of doubt, if either party provides\nnotice of non-renewal of the Agreement no later than ninety (90) days prior to the third anniversary date (either at the end of the Initial Term or at the\nend of any Renewal Period), then the Agreement shall expire on that anniversary date.\n3. Compensation.\n(a) Base Salary. During the Employment Period, Company shall pay Employee as compensation for his services an annual base\nsalary of not less than Two Hundred Twenty Thousand Dollars ($220,000), payable in accordance with Company’s usual practices. Employee’s\nannual base salary rate shall be reviewed by Company’s Compensation Committee at least annually for increase following each fiscal year so that\nEmployee’s salary will be commensurate for similarly situated executives with firms similarly situated to Company; provided, however, that if\nEmployee’s individualized performance targets (set for each fiscal year by Employee and Employee’s team leader) are achieved, Employee’s annual\nbase salary rate shall not be subject to decrease at any time during the Employment Period and shall be subject to annual increase by no less than the\naverage percentage increase given to all other Company executive employees for such fiscal year (the “Average Increase”).\n(b) Bonus. Should Company exceed its sales, profits and other objectives for any fiscal year, Employee shall be eligible to\nreceive a bonus for such fiscal year in the amount as determined by the Compensation Committee of the Board of Directors; provided however the\n2\npotential bonus opportunity for Employee in any given fiscal year will be set by the Compensation Committee such that, if the Company exceeds its\nobjectives, the Company will pay Employee not less than thirty five percent (35%) of Employee’s annual base pay for such fiscal year. Any bonus\npayable to Employee will be payable in cash, stock or stock options, or combination thereof, all as determined by the Board of Directors or any duly\nauthorized committee thereof, and unless a different payout schedule is applicable for all executive employees of the Company, any such bonus\npayment will be payable in a single, lump sum payment. In the event of termination of this Agreement because of Employee’s death or disability (as\ndefined by Section 4(b)), termination by the Company without Cause pursuant to Section 4.1(c), or pursuant to Employee’s right to terminate this\nAgreement for Good Reason under Section 4.1(d), the bonus criteria shall not change and any bonus shall be pro-rated based on the number of full\ncalendar weeks during the applicable fiscal year during which Employee was employed hereunder.\nSuch bonus, if any, shall be payable after Company’s accountants have determined the sales and profits and have issued their\naudit report with respect thereto for the applicable fiscal year, which determination shall be binding on the parties. Any such bonus shall be paid\nwithin seventy-five (75) days after the end of each calendar year, regardless of Employee’s employment status at the time payment is due. If timely\npayment is not made, the Company shall indemnify the Employee against any additional tax liability that the Employee may incur proximately as a\nresult of the payment being made after the seventy-five day period.\n(c) Stock Options. Employee may have been granted in the past, and/or may in the future be granted, a certain number of\nrestricted shares and/or stock options to purchase shares of Company’s common stock (the “Common Stock”), pursuant to the terms set forth more\nparticularly in the stock option and/or restricted stock agreements (“Stock Agreement”) used in connection with the Build-A-Bear Workshop, Inc.\n2000 Stock Option Plan (or any successor plan) (the “Plan”). The Plan and applicable Stock Agreement(s) shall govern any grants of restricted\nshares and/or stock options to purchase shares of Company’s Common Stock.\n(d) Discounts. Employee and his immediate family will be entitled to a 20% discount for all merchandise purchased at\nCompany’s stores.\n(e) Vacation. Employee shall be entitled to paid vacation and paid sick leave on the same basis as may from time to time apply to\nother Company executive employees generally. Vacations will be scheduled with the approval of Company’s Chief Executive Bear, who may block\nout certain periods of time during which vacations may not be taken, including preceding Valentine’s Day, preceding Easter, from November 1\nthrough December 31, during Company inventory, and just prior to store openings. One-third of one year’s vacation (or any part of it) may be carried\nover to the next year; provided that such carry over is used in the first calendar quarter of the next year. Unless approved by the Chief Executive\nBear, all unused vacation shall be forfeited. No more than two weeks of vacation can be taken at one time. Employee shall also be entitled to one\n(1) additional day per calendar year of paid vacation to be taken in the month of his birthday.\n(f) Other. Employee shall be eligible for such other perquisites as may from time to time be awarded to Employee by Company\npayable at such times and in such amounts\nas Company, in its sole discretion, may determine. All such compensation shall be subject to customary withholding taxes and other employment\ntaxes as required with respect thereto. During the Employment Period, Employee shall also qualify for all rights and benefits for which Employee\nmay be eligible under any benefit plans including group life, medical, health, dental and/or disability insurance or other benefits (“Welfare Benefits”)\nwhich are provided for employees generally at his then current location of employment. Employee may, in his sole discretion, decline any perquisite,\nWelfare Benefit, proposed annual salary increase, or bonus payment.\n4. Termination of Employment. Prior to the expiration of the Employment Period, this Agreement and Employee’s employment may be\nterminated as follows:\n(a) Upon Employee’s death;\n(b) By the Company upon thirty (30) day’s prior written notice to Employee in the event Employee, by reason of permanent\nphysical or mental disability (which shall be determined by a physician selected by Company or its insurers and acceptable to Employee or\nEmployee’s legal representative (such agreement as to acceptability not to be withheld unreasonably), shall be unable to perform the essential\nfunctions of his position, with or without reasonable accommodation, for six (6) consecutive months; provided, however, Employee shall not be\nterminated due to permanent physical or mental disability unless or until said disability also entitles Employee to benefits under such disability\ninsurance policy as is provided to Employee by Company, provided however that continued entitlement to disability benefits coverage shall be not\nrequired where Employee fails to qualify for benefits coverage continuation due to an act or omission by Employee.\n(c) By the Company with or without Cause. For the purposes of this Agreement, “Cause” shall mean: (i) Employee’s engagement\nin any conduct which, in Company’s reasonable determination, constitutes gross misconduct, or is illegal, unethical, improper provided such conduct\nbrings detrimental notoriety or material harm to Company; (ii) gross negligence or willful misconduct; (iii) the Company has good reason to believe\nthat Employee has committed a felony or a crime involving moral turpitude; (iv) a material breach of a material provision of this Agreement by\nEmployee, or (v) failure of Employee to follow a written directive of the Chief Executive Bear or the Board of Directors within thirty (30) days after\nreceiving such notice, provided that such directive is reasonable in scope or is otherwise within the Chief Executive Bear’s or the Board’s reasonable\nbusiness judgment, and is reasonably within Employee’s control; provided Employee does not cure said conduct or breach (to the extent curable)\nwithin thirty (30) days after the Chief Executive Bear or the Board of Directors provides Employee with written notice of said conduct or breach. In\nthe event of termination with cause, the Employee will be afforded an opportunity prior to the actual date of termination to discuss the matter with\nthe Company.\n(d) By the Employee with or without Good Reason. For purposes of this Agreement, “Good Reason” shall mean a material\nbreach of a material provision of this Agreement by Company, provided Company does not cure said breach within thirty (30) days after Employee\nprovides the Board of Directors with written notice of the breach.\n4.2 Impact of Termination.\n(a) Survival of Covenants. Upon termination of this Agreement, all rights and obligations of the parties hereunder shall cease,\nexcept termination of employment pursuant to Section 4 or otherwise shall not terminate or otherwise affect the rights and obligations of the parties\npursuant to Sections 5 through 13 hereof.\n(b) Severance. In the event during the Employment Period (i) the Company terminates Employee’s employment without Cause\npursuant to Section 4.1(c) or (ii) the Employee terminates his employment for Good Reason pursuant to Section 4.1(d), the Company shall continue\nhis base salary for a period of twelve (12) months from termination, such payments to be reduced by the amount of any compensation from a\nsubsequent employer during such period. Employee shall accept these payments in full discharge of all obligations of any kind which Company has\nto him except obligations, if any (i) for post-employment benefits expressly provided under this Agreement and/or at law, (ii) to repurchase any\ncapital stock of Company owned by Employee (as may or may not be set forth in the applicable stock agreement); (iii) for indemnification under\nseparate agreement by virtue of Employee’s status as a director/officer of the Company; or (iv) for benefits otherwise provided under the Deferred\nCompensation plan. Employee shall also be eligible to receive a bonus with respect to the year of termination as provided in Section 3(b).\n(c) Termination due to Expiration. If the Agreement expires either at the end of the Initial Term or at the end of any Renewal\nPeriod, due to the issuance of notice of non-renewal by either party under Section 2, then no severance under Section 4(b) shall be paid to the\nEmployee and his Employment shall terminate upon the anniversary date.\n(d) Upon termination or expiration of this Agreement for any reason, Employee shall be provided with such Welfare Benefits\ncontinuation notices, rights and obligations as may be required under federal or state law (including COBRA).\n5. Confidential Information.\n(a) Employee agrees to keep secret and confidential, and not to use or disclose to any third parties, except as directly required for\nEmployee to perform Employee’s employment responsibilities for Company, any of Company’s proprietary Confidential Information.\n(b) Employee acknowledges and confirms that certain data and other information (whether in human or machine readable form)\nthat comes into his possession or knowledge (whether before or after the date of this Agreement) and which was obtained from Company, or\nobtained by Employee for or on behalf of Company, and which is identified herein (the “Confidential Information”) is the secret, confidential\nproperty of Company. This Confidential Information includes, but is not limited to:\n(1) lists or other identification of customers or prospective customers of Company;\n5\n(2) lists or other identification of sources or prospective sources of Company’s products or components thereof, its landlords\nand prospective landlords and its current and prospective alliance, marketing and media partners (and key individuals employed\nor engaged by such parties);\n(3) all compilations of information, correspondence, designs, drawings, files, formulae, lists, machines, maps, methods,\nmodels, studies, surveys, scripts, screenplays, artwork, sketches, notes or other writings, plans, leases, records and reports;\n(4) financial, sales and marketing data relating to Company or to the industry or other areas pertaining to Company’s\nactivities and contemplated activities (including, without limitation, leasing, manufacturing, transportation, distribution and sales\ncosts and non-public pricing information);\n(5) equipment, materials, designs, procedures, processes, and techniques used in, or related to, the development,\nmanufacture, assembly, fabrication or other production and quality control of Company’s products, stores and services;\n(6) Company’s relations with its past, current and prospective customers, suppliers, landlords, alliance, marketing and media\npartners and the nature and type of products or services rendered to, received from or developed with such parties or prospective\nparties;\n(7) Company’s relations with its employees (including, without limitation, salaries, job classifications and skill levels); and\n(8) any other information designated by Company to be confidential, secret and/or proprietary (including without limitation,\ninformation provided by customers, suppliers and alliance partners of Company).\nNotwithstanding the foregoing, the term Confidential Information shall not consist of any data or other information which has been made publicly\navailable or otherwise placed in the public domain other than by Employee in violation of this Agreement.\n(c) During the Employment Period, Employee will not copy, reproduce or otherwise duplicate, record, abstract, summarize or\notherwise use, any papers, records, reports, studies, computer printouts, equipment, tools or other property owned by Company except as expressly\npermitted by Company in writing or required for the proper performance of his duties on behalf of Company.\n6. Post-Termination Restrictions. Employee recognizes that (i) Company has spent substantial money, time and effort over the years in\ndeveloping and solidifying its\nrelationships with its customers, suppliers, landlords and alliance, marketing and media partners and in developing its Confidential Information;\n(ii) long-term customer, landlord, supplier and partner relationships often can be difficult to develop and require a significant investment of time,\neffort and expense; (iii) Company has paid its employees to, among other things, develop and preserve business information, customer, landlord,\nvendor and partner goodwill, customer, landlord, vendor and partner loyalty and customer, landlord, vendor and partner contacts for and on behalf of\nCompany; and (iv) Company is hereby agreeing to employ and pay Employee based upon Employee’s assurances and promises not to divert\ngoodwill of customers, landlords, suppliers or partners of Company, either individually or on a combined basis, or to put himself in a position\nfollowing Employee’s employment with Company in which the confidentiality of Company’s Confidential Information might somehow be\ncompromised. Accordingly, Employee agrees that during the Employment Period and for the period of time set forth below following termination of\nemployment, provided termination is in accordance with the terms of paragraph 4(b), (c), or (d), or due to expiration of the Agreement due to non-\nrenewal by either party, Employee will not, directly or indirectly (whether as owner, partner, consultant, employee or otherwise):\n(a) for one (1) year, engage in, assist or have an interest in, or enter the employment of or act as an agent, advisor or consultant\nfor, any person or entity which is engaged in, or will be engaged in, the development, manufacture, supplying or sale of a product, process, service or\ndevelopment which is competitive with a product, process, service or development on which Employee worked or with respect to which Employee\nhas or had access to Confidential Information while at Company (“Restricted Activity”), and which is located within the United States or within any\ncountry where the Company has established a retail presence either directly or through a franchise arrangement; or\n(b) for one (1) year, induce or attempt to induce any employee, consultant, partner or advisor of Company to accept employment\nor an affiliation with any entity engaged in a Restricted Activity;\nprovided, however, that following termination of his employment, Employee shall be entitled to be an employee of an entity that engages in\nRestricted Activity so long as: (i) the sale of stuffed plush toys is not a material business of the entity; (ii) Employee has no direct or personal\ninvolvement in the sale of stuffed plush toys ; and (iii) neither Employee, his relatives, nor any other entities with which he is affiliated own more\nthan 1% of the entity. As used in this paragraph 6, “material business” shall mean that either (A) greater than 10% of annual revenues received by\nsuch entity were derived from the sale of stuffed plush toys and related products, or (B) the annual revenues received or projected to be received by\nsuch entity from the sale of stuffed plush toys and related products exceeded $10 million, or (C) or the entity otherwise annually derives or is\nprojected to derive annual revenues in excess of $5 million from a retail concept that is similar in any material regard to Company.\n7. Acknowledgment Regarding Restrictions. Employee recognizes and agrees that the restraints contained in Section 6 (both separately\nand in total), including the geographic scope thereof in light of the Company’s marketing efforts, are reasonable and enforceable in view of\nCompany’s legitimate interests in protecting its Confidential Information and customer goodwill and the limited scope of the restrictions in\nSection 6.\n8. Inventions.\nAny and all ideas, inventions, discoveries, patents, patent applications, continuation-in-part patent applications, divisional patent\napplications, technology, copyrights, derivative works, trademarks, service marks, improvements, trade secrets and the like (collectively,\n“Inventions™), which are developed, conceived, created, discovered, learned, produced and/or otherwise generated by Employee, whether\nindividually or otherwise, during the time that Employee is employed by Company, whether or not during working hours, that relate to (i) current\nand anticipated businesses and/or activities of Company, (ii) the current and anticipated research or development of Company, or (iii) any work\nperformed by Employee for Company, shall be the sole and exclusive property of Company, and Company shall own any and all right, title and\ninterest to such Inventions. Employee assigns, and agrees to assign to Company whenever so requested by Company, any and all right, title and\ninterest in and to any such Invention, at Company’s expense, and Employee agrees to execute any and all applications, assignments or other\ninstruments which Company deems desirable or necessary to protect such interests, at Company’s expense.\n(b) Employee acknowledges that as part of his work for the Company he may be asked to create, or contribute to the creation of,\ncomputer programs, documentation and other copyrightable works. Employee hereby agrees that any and all computer programs, documentation and\nother copyrightable materials that he has prepared or worked on for the Company, or is asked to prepare or work on by the Company, shall be treated\nas and shall be a “work made for hire,” for the exclusive ownership and benefit of Company according to the copyright laws of the United States,\nincluding, but not limited to, Sections 101 and 201 of Title 17 of the U.S. Code (“U.S.C.”) as well as according to similar foreign laws. Company\nshall have the exclusive right to register the copyrights in all such works in its name as the owner and author of such works and shall have the\nexclusive rights conveyed under 17 U.S.C. §§ 106 and 106A including, but not limited to, the right to make all uses of the works in which attribution\nor integrity rights may be implicated. Without in any way limiting the foregoing, to the extent the works are not treated as works made for hire under\nany applicable law, Employee hereby irrevocably assigns, transfers, and conveys to Company and its successors and assigns any and all worldwide\nright, title, and interest that Employee may now or in the future have in or to the works, including, but not limited to, all ownership, U.S. and foreign\ncopyrights, all treaty, convention, statutory, and common law rights under the law of any U.S. or foreign jurisdiction, the right to sue for past,\npresent, and future infringement, and moral, attribution, and integrity rights. Employee hereby expressly and forever irrevocably waives any and all\nrights that he may have arising under 17 U.S.C. §8§ 106A, rights that may arise under any federal, state, or foreign law that conveys rights that are\nsimilar in nature to those conveyed under 17 U.S.C. §§ 106A, and any other type of moral right or droit moral.\ndocuments relating to Company obtained by or provided to Employee, or otherwise made, produced or compiled during the Employment Period,\nregardless of the type of medium in which they are preserved, are the sole and exclusive property of Company and shall be surrendered to Company\nupon Employee’s termination of employment and on demand at any time by Company.\n8\n10. Nondisparagement. Employee agrees that he will not in any way disparage Company or its affiliated entities, officers, or directors.\nFurther, Employee agrees that he will neither make nor solicit any comments, statements, or the like to the media or to third parties that may be\nconsidered to be derogatory or detrimental to the good name or business reputation of Company or any of its affiliated entities, officers or directors.\n11. Non-Waiver of Rights. Either party’s failure to enforce at any time any of the provisions of this Agreement or to require at any time\nperformance by the other party of any of the provisions hereof shall in no way be construed to be a waiver of such provisions or to affect either the\nvalidity of this Agreement, or any part hereof, or the right of the non-breaching party thereafter to enforce each and every provision in accordance\nwith the terms of this Agreement.\nunder the terms and provisions of Sections 5, 6, or 8 hereof, Company shall be entitled, in addition to any other legal or equitable remedies it may\nhave in connection therewith (including any right to damages that it may suffer), to temporary, preliminary and permanent injunctive relief\nrestraining such breach or threatened breach. Employee hereby expressly acknowledges that the harm which might result to Company’s business as a\nresult of any noncompliance by Employee with any of the provisions of Sections 5, 6 or 8 would be largely irreparable. Employee specifically agrees\nthat if there is a question as to the enforceability of any of the provisions of Sections 5, 6 or 8 hereof, Employee will not engage in any conduct\ninconsistent with or contrary to such Sections until after the question has been resolved by a final judgment of a court of competent jurisdiction.\n13. Judicial Enforcement. If any provision of this Agreement is adjudicated to be invalid or unenforceable under applicable law in any\njurisdiction, the validity or enforceability of the remaining provisions thereof shall be unaffected as to such jurisdiction and such adjudication shall\nnot affect the validity or enforceability of such provisions in any other jurisdiction. To the extent that any provision of this Agreement is adjudicated\nto be invalid or unenforceable because it is overbroad, that provision shall not be void but rather shall be limited only to the extent required by\napplicable law and enforced as so limited. The parties expressly acknowledge and agree that this Section is reasonable in view of the parties’\nrespective interests.\n14. Employee Representations. Employee represents that the execution and delivery of the Agreement and Employee’s employment with\nCompany do not violate any previous employment agreement or other contractual obligation of Employee. Employee further represents and agrees\nthat he will not, during his employment with Company, improperly use or disclose any proprietary information or trade secrets of former employers\nand will not bring on to the premises of the Company any unpublished documents or any property belonging to his former employers unless\nconsented to in writing by such employers.\n15. Amendments. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing\nspecifically referring hereto, and signed by the parties hereto. This Agreement supersedes all prior agreements and understandings\n9\nbetween Employee and Company to the extent that any such agreements or understandings conflict with the terms of this Agreement.\n16. Assignments. This Agreement shall be freely assignable by Company to and shall inure to the benefit of, and be binding upon,\nCompany, its affiliates, successors and assigns and/or any other entity which shall succeed to the business presently being conducted by Company.\nBeing a contract for personal services, neither this Agreement nor any rights hereunder shall be assigned by Employee.\n17. Choice of Forum and Governing Law. In light of Company’s substantial contacts with the State of Missouri, the parties’ interests in\nensuring that disputes regarding the interpretation, validity and enforceability of this Agreement are resolved on a uniform basis, and Company’s\nexecution of, and the making of, this Agreement in Missouri, the parties agree that: (i) any litigation involving any noncompliance with or breach of\nthe Agreement, or regarding the interpretation, validity and/or enforceability of the Agreement, shall be filed and conducted in the state or federal\ncourts in St. Louis City or County, Missouri; and (ii) the Agreement shall be interpreted in accordance with and governed by the laws of the State of\nMissouri, without regard for any conflict of law principles.\n18. Notices. Except as otherwise provided for herein, any notices to be given by either party to the other shall be affected by personal\ndelivery in writing or by mail, registered or certified, postage prepaid, with return receipt requested. Mailed notices shall be addressed as follows:\na. If to Company:\nMaxine Clark\nChief Executive Bear\n1954 Innerbelt Business Center\nSt. Louis, MO 63114\nb. If to Employee:\n18. Arbitration. Any controversy or claim arising out of, or relating to this Agreement, the breach thereof, or Employee’s\nemployment by Company, shall, at Company’s sole option, be settled by binding arbitration in the County of St. Louis in accordance with\nthe rules then in force of the American Arbitration Association, and judgment upon the award rendered may be entered and enforced in\nany court having jurisdiction thereof. The controversies or claims subject to arbitration at Company’s option under this Agreement include,\nwithout limitation, those arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 1981, the Age Discrimination in\nEmployment Act, the Americans with Disabilities Act, the Family and medical Leave Act, the Worker Adjustment and Retraining\n10\nNotification Act, the Missouri Human Rights Act, local laws governing employment, and the statutory and/or common law of contract and\ntort. In the event Employee commences any action in court which Company has the right to submit to binding arbitration, Company shall\nhave sixty (60) days from the date of service of a summons and complaint upon Company to direct in writing that all or any part of the\ndispute be arbitrated. Any remedy available in any court action shall also be available in arbitration.\n19. Headings. Section headings are provided in this Agreement for convenience only and shall not be deemed to substantively alter the\ncontent of such sections.\nPLEASE NOTE: BY SIGNING THIS AGREEMENT, EMPLOYEE IS HEREBY CERTIFYING THAT EMPLOYEE (A) HAS\nRECEIVED A COPY OF THIS AGREEMENT FOR REVIEW AND STUDY BEFORE EXECUTING IT; (B) HAS READ THIS\nAGREEMENT CAREFULLY BEFORE SIGNING IT; (C) HAS HAD SUFFICIENT OPPORTUNITY BEFORE SIGNING THE\nAGREEMENT TO ASK ANY QUESTIONS EMPLOYEE HAS ABOUT THE AGREEMENT AND HAS RECEIVED SATISFACTORY\nANSWERS TO ALL SUCH QUESTIONS; AND (D) UNDERSTANDS EMPLOYEE’S RIGHTS AND OBLIGATIONS UNDER THE\nAGREEMENT.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nTHIS AGREEMENT CONTAINS A BINDING ARBIRTARTION PROVISION WHICH MAY BE ENFORCED BY\nCOMPANY.\n/s/ David Finnegan\nDave Finnegan\nAddress:\nBUILD-A-BEAR WORKSHOP, INC.\nBy: /s/ Maxine Clark\nName: Maxine Clark\nTitle: Chief Executive Bear\n11	EX-10.6 2 dex106.htm EMPLOYMENT, CONFIDENTIALITY AND NONCOMPETE AGREEMENT\nExhibit 10.6\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETE AGREEMENT\nThis Employment, Confidentiality and Noncompete Agreement ("Agreement") is made and entered into effective as of the 10th day\nof\nJanuary, 2007, by and between Build-A-Bear Workshop, Inc., a Delaware corporation ("Company"), and Dave Finnegan ("Employee").\nWHEREAS, Company desires to employ and Employee desires to be employed as the Chief Information Bear of Company.\nWHEREAS, Company has pioneered the retail concept of "'make your own" stuff plush toys, including animals and dolls, and is engaged\nin, among other things, the business of production, marketing, promotion and distribution of plush stuff toys, clothing, accessories and similar items,\nincluding without limitation, the ownership, management, franchising, leasing and development of retail stores in which the basic operation is the\nselling of such items, and the promotion of the related concepts and characters through merchandising and mass media. The Company is\nheadquartered and its principal place of business are located in, and this Agreement is being signed in, St. Louis, Missouri.\nWHEREAS, Company conducts business in selected locations throughout the United States and internationally through franchise\narrangements.\nWHEREAS, Company has expended a great deal of time, money and effort to develop and maintain its proprietary Confidential\nInformation (as defined herein) which is material to Company and which, if misused or disclosed, could be very harmful to Company's business.\nWHEREAS, the success of Company depends to a substantial extent upon the protection of its Confidential Information and goodwill by\nall of its employees.\nWHEREAS, Company compensates its employees to, among other things, develop and preserve goodwill with its customers, landlords,\nsuppliers and partners on Company's behalf and business information for Company's ownership and use.\nWHEREAS, if Employee were to leave Company, Company, in all fairness, would need certain protections in order to prevent\ncompetitors of Company from gaining an unfair competitive advantage over Company or diverting goodwill from Company, or to prevent Employee\nfrom misusing or misappropriating the Confidential Information.\nNOW, THEREFORE, in consideration of the compensation and other benefits of Employee's employment by Company and the recitals,\nmutual covenants and agreements hereinafter set forth, Employee and Company agree as follows:\n1. Employment Services.\n(a) Employee is hereby employed by Company, and Employee hereby accepts such employment, upon the terms and conditions\nhereinafter set forth. Employee shall serve\nas Chief Information Bear, during the Employment Period, on a full-time basis. Employee shall carry out such duties as are assigned to him by\nCompany's Chief Executive Bear.\n(b) Employee agrees that throughout Employee's employment with Company, Employee will (i) faithfully render such services\nas\nmay be delegated to Employee by Company, (ii) devote substantially all of Employee's entire business time, good faith, best efforts, ability, skill and\nattention\nto\nCompany's\nbusiness,\nand\n(iii)\nfollow\nand\nact\nin\naccordance\nwith\nall\nof\nthe\nrules,\npolicies\nand\nprocedures\nof\nCompany,\nincluding\nbut\nnot\nlimited to working hours, sales and promotion policies, and specific Company rules. Company further agrees that it shall not during the Initial Term\nof this Agreement require Employee to relocate his residence outside of the St. Louis metropolitan area.\n(c) "Company" means Build-A-Bear Workshop, Inc. or one of its Subsidiaries, whichever is Employee's employer. The term\n"Subsidiary" means any corporation, joint venture or other business organization in which Build-A-Bear Workshop, Inc. now or hereafter, directly or\nindirectly, owns or controls more than fifty percent (50%) interest.\n2. Term of Employment. The term of this Agreement shall commence on the date first set forth above, and shall end on the third\nanniversary hereof, unless sooner terminated as provided in Section 4 hereof (the "Initial Term"). Following the Initial Term, this Agreement shall\nrenew for successive three-year periods (each a "Renewal Period"; collectively, the Initial Term and each Renewal Period, the "Employment\nPeriod"), unless either party notifies the other party of its decision not to renew the Agreement no later than ninety (90) days prior to the third\nanniversary date, or unless the Agreement is sooner terminated as provided in Section 4 hereof. For the avoidance of doubt, if either party provides\nnotice of non-renewal of the Agreement no later than ninety (90) days prior to the third anniversary date (either at the end of the Initial Term or at the\nend of any Renewal Period), then the Agreement shall expire on that anniversary date.\n3. Compensation.\n(a) Base Salary.. During the Employment Period, Company shall pay Employee as compensation for his services an annual base\nsalary of not less than Two Hundred Twenty Thousand Dollars ($220,000), payable in accordance with Company's usual practices. Employee's\nannual base salary rate shall be reviewed by Company's Compensation Committee at least annually for increase following each fiscal year so that\nEmployee's salary will be commensurate for similarly situated executives with firms similarly situated to Company; provided, however, that if\nEmployee's individualized performance targets (set for each fiscal year by Employee and Employee's team leader) are achieved, Employee's annual\nbase salary rate shall not be subject to decrease at any time during the Employment Period and shall be subject to annual increase by no less than the\naverage percentage increase given to all other Company executive employees for such fiscal year (the "Average Increase").\n(b) Bonus. Should Company exceed its sales, profits and other objectives for any fiscal year, Employee shall be eligible to\nreceive a bonus for such fiscal year in the amount as determined by the Compensation Committee of the Board of Directors; provided however the\n2\npotential bonus opportunity for Employee in any given fiscal year will be set by the Compensation Committee such that, if the Company exceeds its\nobjectives, the Company will pay Employee not less than thirty five percent (35%) of Employee's annual base pay for such fiscal year. Any bonus\npayable to Employee will be payable in cash, stock or stock options, or combination thereof, all as determined by the Board of Directors or any duly\nauthorized committee thereof, and unless a different payout schedule is applicable for all executive employees of the Company, any such bonus\npayment will be payable in a single, lump sum payment. In the event of termination of this Agreement because of Employee's death or disability (as\ndefined by Section 4(b)), termination by the Company without Cause pursuant to Section 4.1(c), or pursuant to Employee's right to terminate this\nAgreement for Good Reason under Section 1.1(d), the bonus criteria shall not change and any bonus shall be pro-rated based on the number of full\ncalendar weeks during the applicable fiscal year during which Employee was employed hereunder.\nSuch bonus, if any, shall be payable after Company's accountants have determined the sales and profits and have issued their\naudit report with respect thereto for the applicable fiscal year, which determination shall be binding on the parties. Any such bonus shall be paid\nwithin seventy-five (75) days after the end of each calendar year, regardless of Employee's employment status at the time payment is due. If timely\npayment is not made, the Company shall indemnify the Employee against any additional tax liability that the Employee may incur proximately as a\nresult of the payment being made after the seventy-five day period.\n(c) Stock Options. Employee may have been granted in the past, and/or may in the future be granted, a certain number of\nrestricted shares and/or stock options to purchase shares of Company's common stock (the "Common Stock"), pursuant to the terms set forth more\nparticularly in the stock option and/or restricted stock agreements ("Stock Agreement") used in connection with the Build-A-Bear Workshop, Inc.\n2000 Stock Option Plan (or any successor plan) (the "Plan"). The Plan and applicable Stock Agreement(s) shall govern any grants of restricted\nshares and/or stock options to purchase shares of Company's Common Stock.\n(d) Discounts. Employee and his immediate family will be entitled to a 20% discount for all merchandise purchased\nat\nCompany's stores.\n(e) Vacation. Employee shall be entitled to paid vacation and paid sick leave on the same basis as may from time to time apply\nto\nother Company executive employees generally. Vacations will be scheduled with the approval of Company's Chief Executive Bear, who may block\nout certain periods of time during which vacations may not be taken, including preceding Valentine's Day, preceding Easter, from November 1\nthrough December 31, during Company inventory, and just prior to store openings. One-third of one year's vacation (or any part of it) may be carried\nover to the next year; provided that such carry over is used in the first calendar quarter of the next year. Unless approved by the Chief Executive\nBear, all unused vacation shall be forfeited. No more than two weeks of vacation can be taken at one time. Employee shall also be entitled to one\n(1) additional day per calendar year of paid vacation to be taken in the month of his birthday.\n(f) Other. Employee shall be eligible for such other perquisites as may from time to time be awarded to Employee by Company\npayable at such times and in such amounts\n3\nas Company, in its sole discretion, may determine. All such compensation shall be subject to customary withholding taxes and other employment\ntaxes as required with respect thereto. During the Employment Period, Employee shall also qualify for all rights and benefits for which Employee\nmay be eligible under any benefit plans including group life, medical, health, dental and/or disability insurance or other benefits ("Welfare Benefits")\nwhich are provided for employees generally at his then current location of employment. Employee may, in his sole discretion, decline any perquisite,\nWelfare Benefit, proposed annual salary increase, or bonus payment.\n4. Termination of Employment. Prior to the expiration of the Employment Period, this Agreement and Employee's employment may be\nterminated as follows:\n(a) Upon Employee's death;\n(b) By the Company upon thirty (30) day's prior written notice to Employee in the event Employee, by reason of permanent\nphysical or mental disability (which shall be determined by a physician selected by Company or its insurers and acceptable to Employee or\nEmployee's legal representative (such agreement as to acceptability not to be withheld unreasonably), shall be unable to perform the essential\nfunctions of his position, with or without reasonable accommodation, for six (6) consecutive months; provided, however, Employee shall not be\nterminated due to permanent physical or mental disability unless or until said disability also entitles Employee to benefits under such disability\ninsurance policy as is provided to Employee by Company, provided however that continued entitlement to disability benefits coverage shall be not\nrequired where Employee fails to qualify for benefits coverage continuation due to an act or omission by Employee.\n(c) By the Company with or without Cause. For the purposes of this Agreement, "Cause" shall mean: (i) Employee's engagement\nin any conduct which, in Company's reasonable determination, constitutes gross misconduct, or is illegal, unethical, improper provided such conduct\nbrings detrimental notoriety or material harm to Company; (ii) gross negligence or willful misconduct; (iii) the Company has good reason to believe\nthat Employee has committed a felony or a crime involving moral turpitude; (iv) a material breach of a material provision of this Agreement by\nEmployee, or (v) failure of Employee to follow a written directive of the Chief Executive Bear or the Board of Directors within thirty (30) days after\nreceiving such notice, provided that such directive is reasonable in scope or is otherwise within the Chief Executive Bear's or the Board's reasonable\nbusiness judgment, and is reasonably within Employee's control; provided Employee does not cure said conduct or breach (to the extent curable)\nwithin thirty (30) days after the Chief Executive Bear or the Board of Directors provides Employee with written notice of said conduct or breach. In\nthe event of termination with cause, the Employee will be afforded an opportunity prior to the actual date of termination to discuss the matter with\nthe Company.\n(d) By the Employee with or without Good Reason. For purposes of this Agreement, "Good Reason" shall mean a material\nbreach of a material provision of this Agreement by Company, provided Company does not cure said breach within thirty (30) days after Employee\nprovides the Board of Directors with written notice of the breach.\n4\n4.2 Impact of Termination.\n(a) Survival of Covenants. Upon termination of this Agreement, all rights and obligations of the parties hereunder shall cease,\nexcept termination of employment pursuant to Section 4 or otherwise shall not terminate or otherwise affect the rights and obligations of the parties\npursuant to Sections 5 through 13 hereof.\n(b) Severance. In the event during the Employment Period (i) the Company terminates Employee's employment without Cause\npursuant to Section 4.1(c) or (ii) the Employee terminates his employment for Good Reason pursuant to Section 4.1(d), the Company shall continue\nhis base salary for a period of twelve (12) months from termination, such payments to be reduced by the amount of any compensation from a\nsubsequent employer during such period. Employee shall accept these payments in full discharge of all obligations of any kind which Company has\nto him except obligations, if any (i) for post-employment benefits expressly provided under this Agreement and/or at law, (ii) to repurchase any\ncapital stock of Company owned by Employee (as may or may not be set forth in the applicable stock agreement); (iii) for indemnification under\nseparate agreement by virtue of Employee's status as a director/officer of the Company; or (iv) for benefits otherwise provided under the Deferred\nCompensation plan. Employee shall also be eligible to receive a bonus with respect to the year of termination as provided in Section 3(b).\n(c) Termination due to Expiration. If the Agreement expires either at the end of the Initial Term or at the end of any Renewal\nPeriod, due to the issuance of notice of non-renewal by either party under Section 2, then no severance under Section 4(b) shall be paid to the\nEmployee and his Employment shall terminate upon the anniversary date.\n(d) Upon termination or expiration of this Agreement for any reason, Employee shall be provided with such Welfare Benefits\ncontinuation notices, rights and obligations as may be required under federal or state law (including COBRA).\n5. Confidential Information.\n(a) Employee agrees to keep secret and confidential, and not to use or disclose to any third parties, except as directly required for\nEmployee to perform Employee's employment responsibilities for Company, any of Company's proprietary Confidential Information.\n(b) Employee acknowledges and confirms that certain data and other information (whether in human or machine readable form)\nthat comes into his possession or knowledge (whether before or after the date of this Agreement) and which was obtained from Company, or\nobtained by Employee for or on behalf of Company, and which is identified herein (the "Confidential Information") is the secret, confidential\nproperty of Company. This Confidential Information includes, but is not limited to:\n(1) lists or other identification of customers or prospective customers of Company;\n5\n(2) lists or other identification of sources or prospective sources of Company's products or components thereof, its landlords\nand prospective landlords and its current and prospective alliance, marketing and media partners (and key individuals employed\nor engaged by such parties);\n(3) all compilations of information, correspondence, designs, drawings, files, formulae, lists, machines, maps, methods,\nmodels, studies, surveys, scripts, screenplays, artwork, sketches, notes or other writings, plans, leases, records and reports;\n(4) financial, sales and marketing data relating to Company or to the industry or other areas pertaining to Company's\nactivities and contemplated activities (including, without limitation, leasing, manufacturing, transportation, distribution and sales\ncosts and non-public pricing information);\n(5) equipment, materials, designs, procedures, processes, and techniques used in, or related to, the development,\nmanufacture, assembly, fabrication or other production and quality control of Company's products, stores and services;\n(6) Company's relations with its past, current and prospective customers, suppliers, landlords, alliance, marketing and media\npartners and the nature and type of products or services rendered to, received from or developed with such parties or prospective\nparties;\n(7) Company's relations with its employees (including, without limitation, salaries, job classifications and skill levels); and\n(8) any other information designated by Company to be confidential, secret and/or proprietary (including without limitation,\ninformation provided by customers, suppliers and alliance partners of Company).\nNotwithstanding the foregoing, the term Confidential Information shall not consist of any data or other information which has been made publicly\navailable or otherwise placed in the public domain other than by Employee in violation of this Agreement.\n(c) During the Employment Period, Employee will not copy, reproduce or otherwise duplicate, record, abstract, summarize or\notherwise use, any papers, records, reports, studies, computer printouts, equipment, tools or other property owned by Company except as expressly\npermitted by Company in writing or required for the proper performance of his duties on behalf of Company.\n6. Post-Termination Restrictions. Employee recognizes that (i) Company has spent substantial money, time and effort over the years\nin\ndeveloping and solidifying its\n6\nrelationships with its customers, suppliers, landlords and alliance, marketing and media partners and in developing its Confidential Information;\n(ii) long-term customer, landlord, supplier and partner relationships often can be difficult to develop and require a significant investment of time,\neffort and expense; (iii) Company has paid its employees to, among other things, develop and preserve business information, customer, landlord,\nvendor and partner goodwill, customer, landlord, vendor and partner loyalty and customer, landlord, vendor and partner contacts for and on behalf of\nCompany; and (iv) Company is hereby agreeing to employ and pay Employee based upon Employee's assurances and promises not to divert\ngoodwill of customers, landlords, suppliers or partners of Company, either individually or on a combined basis, or to put himself in a position\nfollowing Employee's employment with Company in which the confidentiality of Company's Confidential Information might somehow be\ncompromised. Accordingly, Employee agrees that during the Employment Period and for the period of time set forth below following termination\nof\nemployment, provided termination is in accordance with the terms of paragraph 4(b), (c), or (d), or due to expiration of the Agreement due to non-\nrenewal by either party, Employee will not, directly or indirectly (whether as owner, partner, consultant, employee or otherwise):\n(a) for one (1) year, engage in, assist or have an interest in, or enter the employment of or act as an agent, advisor or consultant\nfor, any person or entity which is engaged in, or will be engaged in, the development, manufacture, supplying or sale of a product, process, service or\ndevelopment which is competitive with a product, process, service or development on which Employee worked or with respect to which Employee\nhas or had access to Confidential Information while at Company ("Restricted Activity"), and which is located within the United States or within any\ncountry where the Company has established a retail presence either directly or through a franchise arrangement; or\n(b) for one (1) year, induce or attempt to induce any employee, consultant, partner or advisor of Company to accept employment\nor an affiliation with any entity engaged in a Restricted Activity;\nprovided, however, that following termination of his employment, Employee shall be entitled to be an employee of an entity that engages in\nRestricted Activity so long as: (i) the sale of stuffed plush toys is not a material business of the entity; (ii) Employee has no direct or personal\ninvolvement in the sale of stuffed plush toys and (iii) neither Employee, his relatives, nor any other entities with which he is affiliated own more\nthan 1% of the entity. As used in this paragraph 6, "material business" shall mean that either (A) greater than 10% of annual revenues received by\nsuch entity were derived from the sale of stuffed plush toys and related products, or (B) the annual revenues received or projected to be received by\nsuch entity from the sale of stuffed plush toys and related products exceeded $10 million, or (C) or the entity otherwise annually derives or is\nprojected to derive annual revenues in excess of $5 million from a retail concept that is similar in any material regard to Company.\n7. Acknowledgment Regarding Restrictions. Employee recognizes and agrees that the restraints contained in Section 6 (both separately\nand in total), including the geographic scope thereof in light of the Company's marketing efforts, are reasonable and enforceable in view of\nCompany's legitimate interests in protecting its Confidential Information and customer goodwill and the limited scope of the restrictions in\nSection 6.\n7\n8. Inventions.\nAny and all ideas, inventions, discoveries, patents, patent applications, continuation-in-part patent applications, divisional patent\napplications, technology, copyrights, derivative works, trademarks, service marks, improvements, trade secrets and the like (collectively,\n"Inventions"), which are developed, conceived, created, discovered, learned, produced and/or otherwise generated by Employee, whether\nindividually or otherwise, during the time that Employee is employed by Company, whether or not during working hours, that relate to (i) current\nand anticipated businesses and/or activities of Company, (ii) the current and anticipated research or development of Company, or (iii) any work\nperformed by Employee for Company, shall be the sole and exclusive property of Company, and Company shall own any and all right, title and\ninterest to such Inventions. Employee assigns, and agrees to assign to Company whenever so requested by Company, any and all right, title and\ninterest in and to any such Invention, at Company's expense, and Employee agrees to execute any and all applications, assignments or other\ninstruments which Company deems desirable or necessary to protect such interests, at Company's expense.\n(b) Employee acknowledges that as part of his work for the Company he may be asked to create, or contribute to the creation of,\ncomputer programs, documentation and other copyrightable works. Employee hereby agrees that any and all computer programs, documentation and\nother copyrightable materials that he has prepared or worked on for the Company, or is asked to prepare or work on by the Company, shall be\ntreated\nas and shall be a "work made for hire," for the exclusive ownership and benefit of Company according to the copyright laws of the United States,\nincluding, but not limited to, Sections 101 and 201 of Title 17 of the U.S. Code ("U.S.C.") as well as according to similar foreign laws. Company\nshall have the exclusive right to register the copyrights in all such works in its name as the owner and author of such works and shall have the\nexclusive rights conveyed under 17 U.S.C. 106 and 106A including, but not limited to, the right to make all uses of the works in which attribution\nor integrity rights may be implicated. Without in any way limiting the foregoing, to the extent the works are not treated as works made for hire under\nany applicable law, Employee hereby irrevocably assigns, transfers, and conveys to Company and its successors and assigns any and all worldwide\nright, title, and interest that Employee may now or in the future have in or to the works, including, but not limited to, all ownership, U.S. and foreign\ncopyrights, all treaty, convention, statutory, and common law rights under the law of any U.S. or foreign jurisdiction, the right to sue for past,\npresent,\nand future infringement, and moral, attribution, and integrity rights. Employee hereby expressly and forever irrevocably waives any and all\nrights that he may have arising under 17 U.S.C. 8s 106A, rights that may arise under any federal, state, or foreign law that conveys rights that are\nsimilar in nature to those conveyed under 17 U.S.C. 88 106A, and any other type of moral right or droit moral.\n9. Company Property. Employee acknowledges that any and all notes, records, sketches, computer diskettes, training materials and other\ndocuments relating to Company obtained by or provided to Employee, or otherwise made, produced or compiled during the Employment Period,\nregardless of the type of medium in which they are preserved, are the sole and exclusive property of Company and shall be surrendered to Company\nupon Employee's termination of employment and on demand at any time by Company.\n8\n10. Nondisparagement. Employee agrees that he will not in any way disparage Company or its affiliated entities, officers, or directors.\nFurther, Employee agrees that he will neither make nor solicit any comments, statements, or the like to the media or to third parties that may be\nconsidered to be derogatory or detrimental to the good name or business reputation of Company or any of its affiliated entities, officers or directors.\n11. Non-Waiver of Rights. Either party's failure to enforce at any time any of the provisions of this Agreement or to require at any time\nperformance\nby\nthe\nother party of any of the provisions hereof shall in no way be construed to be a waiver of such provisions or to affect\neither\nthe\nvalidity of this Agreement, or any part hereof, or the right of the non-breaching party thereafter to enforce each and every provision in accordance\nwith the terms of this Agreement.\n12. Company's Right to Injunctive Relief. In the event of a breach or threatened breach of any of Employee's duties and obligations\nunder the terms and provisions of Sections 5, 6, or 8 hereof, Company shall be entitled, in addition to any other legal or equitable remedies it may\nhave in connection therewith (including any right to damages that it may suffer), to temporary, preliminary and permanent injunctive relief\nrestraining such breach or threatened breach. Employee hereby expressly acknowledges that the harm which might result to Company's business as a\nresult of any noncompliance by Employee with any of the provisions of Sections 5, 6 or 8 would be largely irreparable. Employee specifically agrees\nthat if there is a question as to the enforceability of any of the provisions of Sections 5, 6 or 8 hereof, Employee will not engage in any conduct\ninconsistent with or contrary to such Sections until after the question has been resolved by a final judgment of a court of competent jurisdiction.\n13. Judicial Enforcement. If any provision of this Agreement is adjudicated to be invalid or unenforceable under applicable law in any\njurisdiction, the validity or enforceability of the remaining provisions thereof shall be unaffected as to such jurisdiction and such adjudication shall\nnot affect the validity or enforceability of such provisions in any other jurisdiction. To the extent that any provision of this Agreement is adjudicated\nto\nbe invalid or unenforceable because it is overbroad, that provision shall not be void but rather shall be limited only to the extent required by\napplicable law and enforced as so limited. The parties expressly acknowledge and agree that this Section is reasonable in view of the parties'\nrespective interests.\n14. Employee Representations. Employee represents that the execution and delivery of the Agreement and Employee's employment with\nCompany do not violate any previous employment agreement or other contractual obligation of Employee. Employee further represents and agrees\nthat he will not, during his employment with Company, improperly use or disclose any proprietary information or trade secrets of former employers\nand will not bring on to the premises of the Company any unpublished documents or any property belonging to his former employers unless\nconsented to in writing by such employers.\n15. Amendments. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing\nspecifically referring hereto, and signed by the parties hereto. This Agreement supersedes all prior agreements and understandings\n9\nbetween Employee and Company to the extent that any such agreements or understandings conflict with the terms of this Agreement.\n16. Assignments. This Agreement shall be freely assignable by Company to and shall inure to the benefit of, and be binding upon,\nCompany, its affiliates, successors and assigns and/or any other entity which shall succeed to the business presently being conducted by Company.\nBeing a contract for personal services, neither this Agreement nor any rights hereunder shall be assigned by Employee.\n17. Choice of Forum and Governing Law. In light of Company's substantial contacts with the State of Missouri, the parties' interests in\nensuring that disputes regarding the interpretation, validity and enforceability of this Agreement are resolved on a uniform basis, and Company's\nexecution of, and the making of, this Agreement in Missouri, the parties agree that: (i) any litigation involving any noncompliance with or breach\nof\nthe Agreement, or regarding the interpretation, validity and/or enforceability of the Agreement, shall be filed and conducted in the state or federal\ncourts in St. Louis City or County, Missouri; and (ii) the Agreement shall be interpreted in accordance with and governed by the laws of the State\nof\nMissouri, without regard for any conflict of law principles.\n18. Notices. Except as otherwise provided for herein, any notices to be given by either party to the other shall be affected by personal\ndelivery in writing or by mail, registered or certified, postage prepaid, with return receipt requested. Mailed notices shall be addressed as follows:\na.\nIf to Company:\nMaxine Clark\nChief Executive Bear\n1954 Innerbelt Business Center\nSt. Louis, MO 63114\nb.\nIf to Employee:\n18. Arbitration. Any controversy or claim arising out of, or relating to this Agreement, the breach thereof, or Employee's\nemployment by Company, shall, at Company's sole option, be settled by binding arbitration in the County of St. Louis in accordance with\nthe rules then in force of the American Arbitration Association, and judgment upon the award rendered may be entered and enforced in\nany court having jurisdiction thereof. The controversies or claims subject to arbitration at Company's option under this Agreement include,\nwithout limitation, those arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 1981, the Age Discrimination in\nEmployment Act, the Americans with Disabilities Act, the Family and medical Leave Act, the Worker Adjustment and Retraining\n10\nNotification Act, the Missouri Human Rights Act, local laws governing employment, and the statutory and/or common law of contract and\ntort. In the event Employee commences any action in court which Company has the right to submit to binding arbitration, Company shall\nhave sixty (60) days from the date of service of a summons and complaint upon Company to direct in writing that all or any part of the\ndispute be arbitrated. Any remedy available in any court action shall also be available in arbitration.\n19. Headings. Section headings are provided in this Agreement for convenience only and shall not be deemed to substantively alter the\ncontent of such sections.\nPLEASE NOTE: BY SIGNING THIS AGREEMENT, EMPLOYEE IS HEREBY CERTIFYING THAT EMPLOYEE (A) HAS\nRECEIVED A COPY OF THIS AGREEMENT FOR REVIEW AND STUDY BEFORE EXECUTING IT; (B) HAS READ THIS\nAGREEMENT CAREFULLY BEFORE SIGNING IT; (C) HAS HAD SUFFICIENT OPPORTUNITY BEFORE SIGNING THE\nAGREEMENT TO ASK ANY QUESTIONS EMPLOYEE HAS ABOUT THE AGREEMENT AND HAS RECEIVED SATISFACTORY\nANSWERS TO ALL SUCH QUESTIONS; AND (D) UNDERSTANDS EMPLOYEE'S RIGHTS AND OBLIGATIONS UNDER THE\nAGREEMENT.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nTHIS AGREEMENT CONTAINS A BINDING ARBIRTARTION PROVISION WHICH MAY BE ENFORCED BY\nCOMPANY.\n/s/ David Finnegan\nDave Finnegan\nAddress:\nBUILD-A-BEAR WORKSHOP, INC.\nBy: /s/ Maxine Clark\nName: Maxine Clark\nTitle: Chief Executive Bear\n11	EX-10.6 2 dex106.htm EMPLOYMENT, CONFIDENTIALITY AND NONCOMPETE AGREEMENT\nExhibit 10.6\nEMPLOYMENT, CONFIDENTIALITY AND NONCOMPETE AGREEMENT\nThis Employment, Confidentiality and Noncompete Agreement (“Agreement”) is made and entered into effective as of the 10 day of\nJanuary, 2007, by and between Build-A -Bear Workshop, Inc., a Delaware corporation (“Company”), and Dave Finnegan (“Employee”).\nWHEREAS, Company desires to employ and Employee desires to be employed as the Chief Information Bear of Company.\nWHEREAS, Company has pioneered the retail concept of “make your own” stuff plush toys, including animals and dolls, and is engaged\nin, among other things, the business of production, marketing, promotion and distribution of plush stuff toys, clothing, accessories and similar items,\nincluding without limitation, the ownership, management, franchising, leasing and development of retail stores in which the basic operation is the\nselling of such items, and the promotion of the related concepts and characters through merchandising and mass media. The Company is\nheadquartered and its principal place of business are located in, and this Agreement is being signed in, St. Louis, Missouri.\nWHEREAS, Company conducts business in selected locations throughout the United States and internationally through franchise\narrangements.\nWHEREAS, Company has expended a great deal of time, money and effort to develop and maintain its proprietary Confidential\nInformation (as defined herein) which is material to Company and which, if misused or disclosed, could be very harmful to Company’s business.\nWHEREAS, the success of Company depends to a substantial extent upon the protection of its Confidential Information and goodwill by\nall of its employees.\nWHEREAS, Company compensates its employees to, among other things, develop and preserve goodwill with its customers, landlords,\nsuppliers and partners on Company’s behalf and business information for Company’s ownership and use.\nWHEREAS, if Employee were to leave Company, Company, in all fairness, would need certain protections in order to prevent\ncompetitors of Company from gaining an unfair competitive advantage over Company or diverting goodwill from Company, or to prevent Employee\nfrom misusing or misappropriating the Confidential Information.\nNOW, THEREFORE, in consideration of the compensation and other benefits of Employee’s employment by Company and the recitals,\nmutual covenants and agreements hereinafter set forth, Employee and Company agree as follows:\n1. Employment Services.\n(a) Employee is hereby employed by Company, and Employee hereby accepts such employment, upon the terms and conditions\nhereinafter set forth. Employee shall serve\nth\nas Chief Information Bear, during the Employment Period, on a full-time basis. Employee shall carry out such duties as are assigned to him by\nCompany’s Chief Executive Bear.\n(b) Employee agrees that throughout Employee’s employment with Company, Employee will (i) faithfully render such services as\nmay be delegated to Employee by Company, (ii) devote substantially all of Employee’s entire business time, good faith, best efforts, ability, skill and\nattention to Company’s business, and (iii) follow and act in accordance with all of the rules, policies and procedures of Company, including but not\nlimited to working hours, sales and promotion policies, and specific Company rules. Company further agrees that it shall not during the Initial Term\nof this Agreement require Employee to relocate his residence outside of the St. Louis metropolitan area.\n(c) “Company” means Build-A-Bear Workshop, Inc. or one of its Subsidiaries, whichever is Employee’s employer. The term\n“Subsidiary” means any corporation, joint venture or other business organization in which Build-A-Bear Workshop, Inc. now or hereafter, directly or\nindirectly, owns or controls more than fifty percent (50%) interest.\n2. Term of Employment. The term of this Agreement shall commence on the date first set forth above, and shall end on the third\nanniversary hereof, unless sooner terminated as provided in Section 4 hereof (the “Initial Term”). Following the Initial Term, this Agreement shall\nrenew for successive three-year periods (each a “Renewal Period”; collectively, the Initial Term and each Renewal Period, the “Employment\nPeriod”), unless either party notifies the other party of its decision not to renew the Agreement no later than ninety (90) days prior to the third\nanniversary date, or unless the Agreement is sooner terminated as provided in Section 4 hereof. For the avoidance of doubt, if either party provides\nnotice of non-renewal of the Agreement no later than ninety (90) days prior to the third anniversary date (either at the end of the Initial Term or at the\nend of any Renewal Period), then the Agreement shall expire on that anniversary date.\n3. Compensation.\n(a) Base Salary. During the Employment Period, Company shall pay Employee as compensation for his services an annual base\nsalary of not less than Two Hundred Twenty Thousand Dollars ($220,000), payable in accordance with Company’s usual practices. Employee’s\nannual base salary rate shall be reviewed by Company’s Compensation Committee at least annually for increase following each fiscal year so that\nEmployee’s salary will be commensurate for similarly situated executives with firms similarly situated to Company; provided, however, that if\nEmployee’s individualized performance targets (set for each fiscal year by Employee and Employee’s team leader) are achieved, Employee’s annual\nbase salary rate shall not be subject to decrease at any time during the Employment Period and shall be subject to annual increase by no less than the\naverage percentage increase given to all other Company executive employees for such fiscal year (the “Average Increase”).\n(b) Bonus. Should Company exceed its sales, profits and other objectives for any fiscal year, Employee shall be eligible to\nreceive a bonus for such fiscal year in the amount as determined by the Compensation Committee of the Board of Directors; provided however the\n2\npotential bonus opportunity for Employee in any given fiscal year will be set by the Compensation Committee such that, if the Company exceeds its\nobjectives, the Company will pay Employee not less than thirty five percent (35%) of Employee’s annual base pay for such fiscal year. Any bonus\npayable to Employee will be payable in cash, stock or stock options, or combination thereof, all as determined by the Board of Directors or any duly\nauthorized committee thereof, and unless a different payout schedule is applicable for all executive employees of the Company, any such bonus\npayment will be payable in a single, lump sum payment. In the event of termination of this Agreement because of Employee’s death or disability (as\ndefined by Section 4(b)), termination by the Company without Cause pursuant to Section 4.1(c), or pursuant to Employee’s right to terminate this\nAgreement for Good Reason under Section 4.1(d), the bonus criteria shall not change and any bonus shall be pro-rated based on the number of full\ncalendar weeks during the applicable fiscal year during which Employee was employed hereunder.\nSuch bonus, if any, shall be payable after Company’s accountants have determined the sales and profits and have issued their\naudit report with respect thereto for the applicable fiscal year, which determination shall be binding on the parties. Any such bonus shall be paid\nwithin seventy-five (75) days after the end of each calendar year, regardless of Employee’s employment status at the time payment is due. If timely\npayment is not made, the Company shall indemnify the Employee against any additional tax liability that the Employee may incur proximately as a\nresult of the payment being made after the seventy-five day period.\n(c) Stock Options. Employee may have been granted in the past, and/or may in the future be granted, a certain number of\nrestricted shares and/or stock options to purchase shares of Company’s common stock (the “Common Stock”), pursuant to the terms set forth more\nparticularly in the stock option and/or restricted stock agreements (“Stock Agreement”) used in connection with the Build-A-Bear Workshop, Inc.\n2000 Stock Option Plan (or any successor plan) (the “Plan”). The Plan and applicable Stock Agreement(s) shall govern any grants of restricted\nshares and/or stock options to purchase shares of Company’s Common Stock.\n(d) Discounts. Employee and his immediate family will be entitled to a 20% discount for all merchandise purchased at\nCompany’s stores.\n(e) Vacation. Employee shall be entitled to paid vacation and paid sick leave on the same basis as may from time to time apply to\nother Company executive employees generally. Vacations will be scheduled with the approval of Company’s Chief Executive Bear, who may block\nout certain periods of time during which vacations may not be taken, including preceding Valentine’s Day, preceding Easter, from November 1\nthrough December 31, during Company inventory, and just prior to store openings. One-third of one year’s vacation (or any part of it) may be carried\nover to the next year; provided that such carry over is used in the first calendar quarter of the next year. Unless approved by the Chief Executive\nBear, all unused vacation shall be forfeited. No more than two weeks of vacation can be taken at one time. Employee shall also be entitled to one\n(1) additional day per calendar year of paid vacation to be taken in the month of his birthday.\n(f) Other. Employee shall be eligible for such other perquisites as may from time to time be awarded to Employee by Company\npayable at such times and in such amounts\n3\nas Company, in its sole discretion, may determine. All such compensation shall be subject to customary withholding taxes and other employment\ntaxes as required with respect thereto. During the Employment Period, Employee shall also qualify for all rights and benefits for which Employee\nmay be eligible under any benefit plans including group life, medical, health, dental and/or disability insurance or other benefits (“Welfare Benefits”)\nwhich are provided for employees generally at his then current location of employment. Employee may, in his sole discretion, decline any perquisite,\nWelfare Benefit, proposed annual salary increase, or bonus payment.\n4. Termination of Employment. Prior to the expiration of the Employment Period, this Agreement and Employee’s employment may be\nterminated as follows:\n(a) Upon Employee’s death;\n(b) By the Company upon thirty (30) day’s prior written notice to Employee in the event Employee, by reason of permanent\nphysical or mental disability (which shall be determined by a physician selected by Company or its insurers and acceptable to Employee or\nEmployee’s legal representative (such agreement as to acceptability not to be withheld unreasonably), shall be unable to perform the essential\nfunctions of his position, with or without reasonable accommodation, for six (6) consecutive months; provided, however, Employee shall not be\nterminated due to permanent physical or mental disability unless or until said disability also entitles Employee to benefits under such disability\ninsurance policy as is provided to Employee by Company, provided however that continued entitlement to disability benefits coverage shall be not\nrequired where Employee fails to qualify for benefits coverage continuation due to an act or omission by Employee.\n(c) By the Company with or without Cause. For the purposes of this Agreement, “Cause” shall mean: (i) Employee’s engagement\nin any conduct which, in Company’s reasonable determination, constitutes gross misconduct, or is illegal, unethical, improper provided such conduct\nbrings detrimental notoriety or material harm to Company; (ii) gross negligence or willful misconduct; (iii) the Company has good reason to believe\nthat Employee has committed a felony or a crime involving moral turpitude; (iv) a material breach of a material provision of this Agreement by\nEmployee, or (v) failure of Employee to follow a written directive of the Chief Executive Bear or the Board of Directors within thirty (30) days after\nreceiving such notice, provided that such directive is reasonable in scope or is otherwise within the Chief Executive Bear’s or the Board’s reasonable\nbusiness judgment, and is reasonably within Employee’s control; provided Employee does not cure said conduct or breach (to the extent curable)\nwithin thirty (30) days after the Chief Executive Bear or the Board of Directors provides Employee with written notice of said conduct or breach. In\nthe event of termination with cause, the Employee will be afforded an opportunity prior to the actual date of termination to discuss the matter with\nthe Company.\n(d) By the Employee with or without Good Reason. For purposes of this Agreement, “Good Reason” shall mean a material\nbreach of a material provision of this Agreement by Company, provided Company does not cure said breach within thirty (30) days after Employee\nprovides the Board of Directors with written notice of the breach.\n4\n4.2 Impact of Termination.\n(a) Survival of Covenants. Upon termination of this Agreement, all rights and obligations of the parties hereunder shall cease,\nexcept termination of employment pursuant to Section 4 or otherwise shall not terminate or otherwise affect the rights and obligations of the parties\npursuant to Sections 5 through 13 hereof.\n(b) Severance. In the event during the Employment Period (i) the Company terminates Employee’s employment without Cause\npursuant to Section 4.1(c) or (ii) the Employee terminates his employment for Good Reason pursuant to Section 4.1(d), the Company shall continue\nhis base salary for a period of twelve (12) months from termination, such payments to be reduced by the amount of any compensation from a\nsubsequent employer during such period. Employee shall accept these payments in full discharge of all obligations of any kind which Company has\nto him except obligations, if any (i) for post-employment benefits expressly provided under this Agreement and/or at law, (ii) to repurchase any\ncapital stock of Company owned by Employee (as may or may not be set forth in the applicable stock agreement); (iii) for indemnification under\nseparate agreement by virtue of Employee’s status as a director/officer of the Company; or (iv) for benefits otherwise provided under the Deferred\nCompensation plan. Employee shall also be eligible to receive a bonus with respect to the year of termination as provided in Section 3(b).\n(c) Termination due to Expiration. If the Agreement expires either at the end of the Initial Term or at the end of any Renewal\nPeriod, due to the issuance of notice of non-renewal by either party under Section 2, then no severance under Section 4(b) shall be paid to the\nEmployee and his Employment shall terminate upon the anniversary date.\n(d) Upon termination or expiration of this Agreement for any reason, Employee shall be provided with such Welfare Benefits\ncontinuation notices, rights and obligations as may be required under federal or state law (including COBRA).\n5. Confidential Information.\n(a) Employee agrees to keep secret and confidential, and not to use or disclose to any third parties, except as directly required for\nEmployee to perform Employee’s employment responsibilities for Company, any of Company’s proprietary Confidential Information.\n(b) Employee acknowledges and confirms that certain data and other information (whether in human or machine readable form)\nthat comes into his possession or knowledge (whether before or after the date of this Agreement) and which was obtained from Company, or\nobtained by Employee for or on behalf of Company, and which is identified herein (the “Confidential Information”) is the secret, confidential\nproperty of Company. This Confidential Information includes, but is not limited to:\n(1) lists or other identification of customers or prospective customers of Company;\n5\n(2) lists or other identification of sources or prospective sources of Company’s products or components thereof, its landlords\nand prospective landlords and its current and prospective alliance, marketing and media partners (and key individuals employed\nor engaged by such parties);\n(3) all compilations of information, correspondence, designs, drawings, files, formulae, lists, machines, maps, methods,\nmodels, studies, surveys, scripts, screenplays, artwork, sketches, notes or other writings, plans, leases, records and reports;\n(4) financial, sales and marketing data relating to Company or to the industry or other areas pertaining to Company’s\nactivities and contemplated activities (including, without limitation, leasing, manufacturing, transportation, distribution and sales\ncosts and non-public pricing information);\n(5) equipment, materials, designs, procedures, processes, and techniques used in, or related to, the development,\nmanufacture, assembly, fabrication or other production and quality control of Company’s products, stores and services;\n(6) Company’s relations with its past, current and prospective customers, suppliers, landlords, alliance, marketing and media\npartners and the nature and type of products or services rendered to, received from or developed with such parties or prospective\nparties;\n(7) Company’s relations with its employees (including, without limitation, salaries, job classifications and skill levels); and\n(8) any other information designated by Company to be confidential, secret and/or proprietary (including without limitation,\ninformation provided by customers, suppliers and alliance partners of Company).\nNotwithstanding the foregoing, the term Confidential Information shall not consist of any data or other information which has been made publicly\navailable or otherwise placed in the public domain other than by Employee in violation of this Agreement.\n(c) During the Employment Period, Employee will not copy, reproduce or otherwise duplicate, record, abstract, summarize or\notherwise use, any papers, records, reports, studies, computer printouts, equipment, tools or other property owned by Company except as expressly\npermitted by Company in writing or required for the proper performance of his duties on behalf of Company.\n6. Post-Termination Restrictions. Employee recognizes that (i) Company has spent substantial money, time and effort over the years in\ndeveloping and solidifying its\n6\nrelationships with its customers, suppliers, landlords and alliance, marketing and media partners and in developing its Confidential Information;\n(ii) long-term customer, landlord, supplier and partner relationships often can be difficult to develop and require a significant investment of time,\neffort and expense; (iii) Company has paid its employees to, among other things, develop and preserve business information, customer, landlord,\nvendor and partner goodwill, customer, landlord, vendor and partner loyalty and customer, landlord, vendor and partner contacts for and on behalf of\nCompany; and (iv) Company is hereby agreeing to employ and pay Employee based upon Employee’s assurances and promises not to divert\ngoodwill of customers, landlords, suppliers or partners of Company, either individually or on a combined basis, or to put himself in a position\nfollowing Employee’s employment with Company in which the confidentiality of Company’s Confidential Information might somehow be\ncompromised. Accordingly, Employee agrees that during the Employment Period and for the period of time set forth below following termination of\nemployment, provided termination is in accordance with the terms of paragraph 4(b), (c), or (d), or due to expiration of the Agreement due to non-\nrenewal by either party, Employee will not, directly or indirectly (whether as owner, partner, consultant, employee or otherwise):\n(a) for one (1) year, engage in, assist or have an interest in, or enter the employment of or act as an agent, advisor or consultant\nfor, any person or entity which is engaged in, or will be engaged in, the development, manufacture, supplying or sale of a product, process, service or\ndevelopment which is competitive with a product, process, service or development on which Employee worked or with respect to which Employee\nhas or had access to Confidential Information while at Company (“Restricted Activity”), and which is located within the United States or within any\ncountry where the Company has established a retail presence either directly or through a franchise arrangement; or\n(b) for one (1) year, induce or attempt to induce any employee, consultant, partner or advisor of Company to accept employment\nor an affiliation with any entity engaged in a Restricted Activity;\nprovided, however, that following termination of his employment, Employee shall be entitled to be an employee of an entity that engages in\nRestricted Activity so long as: (i) the sale of stuffed plush toys is not a material business of the entity; (ii) Employee has no direct or personal\ninvolvement in the sale of stuffed plush toys ; and (iii) neither Employee, his relatives, nor any other entities with which he is affiliated own more\nthan 1% of the entity. As used in this paragraph 6, “material business” shall mean that either (A) greater than 10% of annual revenues received by\nsuch entity were derived from the sale of stuffed plush toys and related products, or (B) the annual revenues received or projected to be received by\nsuch entity from the sale of stuffed plush toys and related products exceeded $10 million, or (C) or the entity otherwise annually derives or is\nprojected to derive annual revenues in excess of $5 million from a retail concept that is similar in any material regard to Company.\n7. Acknowledgment Regarding Restrictions. Employee recognizes and agrees that the restraints contained in Section 6 (both separately\nand in total), including the geographic scope thereof in light of the Company’s marketing efforts, are reasonable and enforceable in view of\nCompany’s legitimate interests in protecting its Confidential Information and customer goodwill and the limited scope of the restrictions in\nSection 6.\n7\n8. Inventions.\nAny and all ideas, inventions, discoveries, patents, patent applications, continuation-in-part patent applications, divisional patent\napplications, technology, copyrights, derivative works, trademarks, service marks, improvements, trade secrets and the like (collectively,\n“Inventions”), which are developed, conceived, created, discovered, learned, produced and/or otherwise generated by Employee, whether\nindividually or otherwise, during the time that Employee is employed by Company, whether or not during working hours, that relate to (i) current\nand anticipated businesses and/or activities of Company, (ii) the current and anticipated research or development of Company, or (iii) any work\nperformed by Employee for Company, shall be the sole and exclusive property of Company, and Company shall own any and all right, title and\ninterest to such Inventions. Employee assigns, and agrees to assign to Company whenever so requested by Company, any and all right, title and\ninterest in and to any such Invention, at Company’s expense, and Employee agrees to execute any and all applications, assignments or other\ninstruments which Company deems desirable or necessary to protect such interests, at Company’s expense.\n(b) Employee acknowledges that as part of his work for the Company he may be asked to create, or contribute to the creation of,\ncomputer programs, documentation and other copyrightable works. Employee hereby agrees that any and all computer programs, documentation and\nother copyrightable materials that he has prepared or worked on for the Company, or is asked to prepare or work on by the Company, shall be treated\nas and shall be a “work made for hire,” for the exclusive ownership and benefit of Company according to the copyright laws of the United States,\nincluding, but not limited to, Sections 101 and 201 of Title 17 of the U.S . Code (“U.S .C.”) as well as according to similar foreign laws. Company\nshall have the exclusive right to register the copyrights in all such works in its name as the owner and author of such works and shall have the\nexclusive rights conveyed under 17 U.S.C. §§ 106 and 106A including, but not limited to, the right to make all uses of the works in which attribution\nor integrity rights may be implicated. Without in any way limiting the foregoing, to the extent the works are not treated as works made for hire under\nany applicable law, Employee hereby irrevocably assigns, transfers, and conveys to Company and its successors and assigns any and all worldwide\nright, title, and interest that Employee may now or in the future have in or to the works, including, but not limited to, all ownership, U.S . and foreign\ncopyrights, all treaty, convention, statutory, and common law rights under the law of any U.S. or foreign jurisdiction, the right to sue for past,\npresent, and future infringement, and moral, attribution, and integrity rights. Employee hereby expressly and forever irrevocably waives any and all\nrights that he may have arising under 17 U.S.C . §§ 106A, rights that may arise under any federal, state, or foreign law that conveys rights that are\nsimilar in nature to those conveyed under 17 U.S.C . §§ 106A, and any other type of moral right or droit moral.\n9. Company Property. Employee acknowledges that any and all notes, records, sketches, computer diskettes, training materials and other\ndocuments relating to Company obtained by or provided to Employee, or otherwise made, produced or compiled during the Employment Period,\nregardless of the type of medium in which they are preserved, are the sole and exclusive property of Company and shall be surrendered to Company\nupon Employee’s termination of employment and on demand at any time by Company.\n8\n10. Nondisparagement. Employee agrees that he will not in any way disparage Company or its affiliated entities, officers, or directors.\nFurther, Employee agrees that he will neither make nor solicit any comments, statements, or the like to the media or to third parties that may be\nconsidered to be derogatory or detrimental to the good name or business reputation of Company or any of its affiliated entities, officers or directors.\n11. Non-Waiver of Rights. Either party’s failure to enforce at any time any of the provisions of this Agreement or to require at any time\nperformance by the other party of any of the provisions hereof shall in no way be construed to be a waiver of such provisions or to affect either the\nvalidity of this Agreement, or any part hereof, or the right of the non-breaching party thereafter to enforce each and every provision in accordance\nwith the terms of this Agreement.\n12. Company’s Right to Injunctive Relief. In the event of a breach or threatened breach of any of Employee’s duties and obligations\nunder the terms and provisions of Sections 5, 6, or 8 hereof, Company shall be entitled, in addition to any other legal or equitable remedies it may\nhave in connection therewith (including any right to damages that it may suffer), to temporary, preliminary and permanent injunctive relief\nrestraining such breach or threatened breach. Employee hereby expressly acknowledges that the harm which might result to Company’s business as a\nresult of any noncompliance by Employee with any of the provisions of Sections 5, 6 or 8 would be largely irreparable. Employee specifically agrees\nthat if there is a question as to the enforceability of any of the provisions of Sections 5, 6 or 8 hereof, Employee will not engage in any conduct\ninconsistent with or contrary to such Sections until after the question has been resolved by a final judgment of a court of competent jurisdiction.\n13. Judicial Enforcement. If any provision of this Agreement is adjudicated to be invalid or unenforceable under applicable law in any\njurisdiction, the validity or enforceability of the remaining provisions thereof shall be unaffected as to such jurisdiction and such adjudication shall\nnot affect the validity or enforceability of such provisions in any other jurisdiction. To the extent that any provision of this Agreement is adjudicated\nto be invalid or unenforceable because it is overbroad, that provision shall not be void but rather shall be limited only to the extent required by\napplicable law and enforced as so limited. The parties expressly acknowledge and agree that this Section is reasonable in view of the parties’\nrespective interests.\n14. Employee Representations. Employee represents that the execution and delivery of the Agreement and Employee’s employment with\nCompany do not violate any previous employment agreement or other contractual obligation of Employee. Employee further represents and agrees\nthat he will not, during his employment with Company, improperly use or disclose any proprietary information or trade secrets of former employers\nand will not bring on to the premises of the Company any unpublished documents or any property belonging to his former employers unless\nconsented to in writing by such employers.\n15. Amendments. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing\nspecifically referring hereto, and signed by the parties hereto. This Agreement supersedes all prior agreements and understandings\n9\nbetween Employee and Company to the extent that any such agreements or understandings conflict with the terms of this Agreement.\n16. Assignments. This Agreement shall be freely assignable by Company to and shall inure to the benefit of, and be binding upon,\nCompany, its affiliates, successors and assigns and/or any other entity which shall succeed to the business presently being conducted by Company.\nBeing a contract for personal services, neither this Agreement nor any rights hereunder shall be assigned by Employee.\n17. Choice of Forum and Governing Law. In light of Company’s substantial contacts with the State of Missouri, the parties’ interests in\nensuring that disputes regarding the interpretation, validity and enforceability of this Agreement are resolved on a uniform basis, and Company’s\nexecution of, and the making of, this Agreement in Missouri, the parties agree that: (i) any litigation involving any noncompliance with or breach of\nthe Agreement, or regarding the interpretation, validity and/or enforceability of the Agreement, shall be filed and conducted in the state or federal\ncourts in St. Louis City or County, Missouri; and (ii) the Agreement shall be interpreted in accordance with and governed by the laws of the State of\nMissouri, without regard for any conflict of law principles.\n18. Notices. Except as otherwise provided for herein, any notices to be given by either party to the other shall be affected by personal\ndelivery in writing or by mail, registered or certified, postage prepaid, with return receipt requested. Mailed notices shall be addressed as follows:\na.\nIf to Company:\nMaxine Clark\nChief Executive Bear\n1954 Innerbelt Business Center\nSt. Louis, MO 63114\nb.\nIf to Employee:\n18. Arbitration. Any controversy or claim arising out of, or relating to this Agreement, the breach thereof, or Employee’s\nemployment by Company, shall, at Company’s sole option, be settled by binding arbitration in the County of St. Louis in accordance with\nthe rules then in force of the American Arbitration Association, and judgment upon the award rendered may be entered and enforced in\nany court having jurisdiction thereof. The controversies or claims subject to arbitration at Company’s option under this Agreement include,\nwithout limitation, those arising under Title VII of the Civil Rights Act of 1964, 42 U.S .C . Section 1981, the Age Discrimination in\nEmployment Act, the Americans with Disabilities Act, the Family and medical Leave Act, the Worker Adjustment and Retraining\n10\nNotification Act, the Missouri Human Rights Act, local laws governing employment, and the statutory and/or common law of contract and\ntort. In the event Employee commences any action in court which Company has the right to submit to binding arbitration, Company shall\nhave sixty (60) days from the date of service of a summons and complaint upon Company to direct in writing that all or any part of the\ndispute be arbitrated. Any remedy available in any court action shall also be available in arbitration.\n19. Headings. Section headings are provided in this Agreement for convenience only and shall not be deemed to substantively alter the\ncontent of such sections.\nPLEASE NOTE: BY SIGNING THIS AGREEMENT, EMPLOYEE IS HEREBY CERTIFYING THAT EMPLOYEE (A) HAS\nRECEIVED A COPY OF THIS AGREEMENT FOR REVIEW AND STUDY BEFORE EXECUTING IT; (B) HAS READ THIS\nAGREEMENT CAREFULLY BEFORE SIGNING IT; (C) HAS HAD SUFFICIENT OPPORTUNITY BEFORE SIGNING THE\nAGREEMENT TO ASK ANY QUESTIONS EMPLOYEE HAS ABOUT THE AGREEMENT AND HAS RECEIVED SATISFACTORY\nANSWERS TO ALL SUCH QUESTIONS; AND (D) UNDERSTANDS EMPLOYEE’S RIGHTS AND OBLIGATIONS UNDER THE\nAGREEMENT.\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.\nTHIS AGREEMENT CONTAINS A BINDING ARBIRTARTION PROVISION WHICH MAY BE ENFORCED BY\nCOMPANY.\n/s/ David Finnegan\nDave Finnegan\nAddress:\nBUILD-A-BEAR WORKSHOP, INC.\nBy: /s/ Maxine Clark\nName: Maxine Clark\nTitle: Chief Executive Bear\n11
+3f85d1e60e155de4d89f90dd50561e51.pdf	jurisdiction	EXHIBIT 10.2\nNON-SOLICITATION , NON -COMPETITION\nAND CONFIDENTIALITY AGREEMENT\nThe undersigned enter into this NON-SOLICITATION , NON -COMPETITION AND CONFIDENTIALITY AGREEMENT (the “Agreement”) between Gentiva Health Services, Inc. including its subsidiaries, affiliates, divisions,\nsuccessors, and related entities (“Gentiva”) and\n(“Employee”), effective the date signed below by Employee.\nEmployee acknowledges and agrees that Gentiva is engaged in the highly competitive business of providing home healthcare and hospice services. Gentiva’s engagement in this business has involved and continues to involve the\nexpenditure of substantial amounts of money and the use of skills developed over a long period of time. As a result of these investments of money, skill and time, Gentiva has developed and will continue to develop certain valuable Trade\nSecrets and Confidential Information that are peculiar to Gentiva’s business and the disclosure of which would cause Gentiva great and irreparable harm. Gentiva also has invested a great deal of time and money in developing\nrelationships with its employees, vendors, patients and referral sources.\nEmployee acknowledges and agrees that in rendering services to Gentiva, Employee will be exposed to and learn much information about Gentiva’s business, including valuable Confidential Information and Trade Secrets, which\nEmployee would not have access to if not for Employee’s employment with Gentiva and which it would be unfair to disclose to others, or to use to Gentiva’s disadvantage.\nEmployee acknowledges and agrees that the restrictions contained in this Agreement are necessary and reasonable to protect Gentiva’s legitimate business interests in its Trade Secrets, valuable Confidential Information, relationships and\ngoodwill with its employees and relationships and goodwill with its existing and prospective vendors, patients and referral sources.\nEmployee acknowledges that Employee’s skills, education and training qualify Employee to work and obtain employment which does not violate this Agreement and that the restrictions in this Agreement have been crafted as narrowly as\nreasonably possible to protect Gentiva’s legitimate business interests in its Trade Secrets, valuable Confidential Information, relationships and goodwill with its employees and relationships and good will with its existing and prospective\nvendors, patients and referral sources.\nIn consideration of the mutual promises and obligations in this Agreement, including but not limited to, Gentiva employing and/or continuing to employ Employee as an at-will employee, and other good and valuable consideration, the\nreceipt and sufficiency of which are hereby mutually acknowledged, Gentiva and Employee agree as follows:\n1.\nNon-Solicitation of Patients\nEmployee agrees that during Employee’s employment with Gentiva and for a period of two (2) years after termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or\nEmployee, Employee will not solicit or attempt to solicit (either directly or by assisting others) any business from Gentiva’s patients or prospective patients which are actively being sought by Gentiva at the time of Employee’s termination\nfor the purpose of providing services that are competitive with the type of services provided by Gentiva at the time of Employee’s termination. This restriction shall apply only to patients and prospective patients with whom Employee had\nMaterial Contact during the last two years of Employee’s employment with Gentiva. For purposes of this Section 1 “Material Contact” means contact between Employee and an existing or prospective patient of Gentiva: (a) with whom\nEmployee dealt on behalf of Gentiva within two years prior to the date of Employee’s termination; (b) whose dealings with Gentiva were coordinated or supervised by Employee within two years prior to the date of Employee’s\ntermination; (c) about whom Employee obtained confidential information in the ordinary course of business as a result of Employee’s association with Gentiva within two years prior to the date of Employee’s termination; or, (d) who\nreceives services authorized by Gentiva, the sale or provision of which results or resulted in compensation, commissions, or earnings for Employee within two years prior to the date of Employee’s termination.\n2.\nNon-Solicitation of Referral Sources\nEmployee agrees that during Employee’s employment with Gentiva and for a period of two (2) years after termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or\nEmployee, Employee will not solicit or attempt to solicit (either directly or by assisting others) any business or referrals from Gentiva’s referral sources or prospective referral sources which are actively being sought by Gentiva at the time\nof Employee’s termination for the purpose of providing services that are competitive with the type of services provided by Gentiva at the time of Employee’s termination. This restriction shall apply only to referral sources and prospective\nreferral sources with whom Employee had Material Contact during the last two years of Employee’s employment with Gentiva. For purposes of this Section 2 “Material Contact” means contact between Employee and an existing or\nprospective referral source of Gentiva: (a) with whom Employee dealt on behalf of Gentiva within two years prior to the date of Employee’s termination; (b) whose dealings with Gentiva were coordinated or supervised by Employee\nwithin two years prior to the date of Employee’s termination; (c) about whom Employee obtained confidential information in the ordinary course of business as a result of Employee’s association with Gentiva within two years prior to the\ndate of Employee’s termination; or, (d) who refers services authorized by Gentiva, the sale or provision of which results or resulted in compensation, commissions, or earnings for Employee within two years prior to the date of\nEmployee’s termination.\nPage2of7\n3.\nNon-Solicitation of Employees\nEmployee agrees that during Employee’s employment with Gentiva and for a period of two (2) years after termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or\nEmployee, Employee will not recruit, hire or attempt to recruit or hire, or solicit or encourage to leave their employment with Gentiva (either directly or by assisting others) any other employee of Gentiva with whom Employee had\nMaterial Contact during the last two years of Employee’s employment with Gentiva. For purposes of this Section 3 “Material Contact” means contact for the purpose of furthering Gentiva’s business.\n4.\nNon-Competition\nEmployee agrees that during Employee’s employment with Gentiva, Employee will not (either directly or by assisting others) compete with Gentiva or engage in any activity or pursue any interest that in any way conflicts with Gentiva’s\ninterests.\nEmployee further agrees that for a period of two (2) years after termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or Employee, Employee shall not (either on\nEmployee’s own behalf or on another’s behalf) perform job activities of the type Employee conducted or provided for Gentiva within the two years prior to Employee’s termination, for purposes of providing services that are competitive\nwith services provided by Gentiva at the time of Employee’s termination. This restriction shall apply only within the territory where Employee is working for Gentiva at the time of Employee’s termination. Employee and Gentiva agree\nand acknowledge that the territory where Employee is working for Gentiva at the time of Employee’s termination includes the geographic territory within: (a) a 20 mile radius of every Gentiva office or facility over which or in which\nEmployee had job responsibilities at the time of Employee’s termination; (b) a 20 mile radius of every Gentiva office or facility which is included in Employee’s geographic territory of job responsibility at the time of Employee’s\ntermination; and, (c) a 50 mile radius of Employee’s primary place of employment at the time of Employee’s termination. Employee agrees that because of the nature of Gentiva’s business, the nature of Employee’s job responsibilities,\nand the nature of the Confidential Information and Trade Secrets of Gentiva to which Gentiva will give Employee access, any breach of this provision by Employee would result in the inevitable disclosure of Gentiva’s Trade Secrets and\nConfidential Information to its direct competitors.\n5.\nConfidentiality\nDuring Employee’s employment with Gentiva and at any time after the termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or Employee, Employee will not publish or\ndisclose, use for Employee’s own benefit or the benefit of others, or divulge or convey to others, any Trade Secrets of Gentiva or that of third parties obtained by Employee in the course of Employee’s employment with Gentiva. “Trade\nSecret” means any and all information, knowledge or data in any form whatsoever, tangible or intangible, that is considered a trade secret under\nPage3of7\napplicable law. This promise of confidentiality is in addition to, and does not limit, any common law or statutory rights of Gentiva to prevent disclosure, publication or use of its Trade Secrets.\nEmployee further agrees that during Employee’s employment with Gentiva and at any time after the termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or Employee,\nEmployee will not publish or disclose, use for Employee’s own benefit or the benefit of others, or divulge or convey to others, any Confidential Information of Gentiva. “Confidential Information” means any and all Gentiva data and\ninformation in any form whatsoever, tangible or intangible, which: relates to the business of Gentiva, regardless of whether the data or information constitutes a Trade Secret; is disclosed to Employee or of which Employee became aware\nas a consequence of Employee’s relationship with Gentiva; has value to Gentiva; and is not generally known to Gentiva’s competitors. Confidential Information includes Gentiva’s Trade Secrets, Gentiva’s methods of operation, names of\nGentiva patients and referral sources, Gentiva price lists, Gentiva’s financial information and projections, and personnel data on Gentiva employees. Confidential Information does not include data or information: (a) which has been\nvoluntarily disclosed to the public by Gentiva, except where such public disclosure has been made by Employee without authorization from Gentiva; (b) which has been independently developed and disclosed by others; or (c) which has\notherwise entered the public domain through lawful means. This promise of confidentiality is in addition to, and does not limit, any common law or statutory rights of Gentiva to prevent disclosure, publication or use of its Confidential\nInformation.\n6.\nReturn of Gentiva Property\nUpon termination of Employee’s employment with Gentiva or at any other time at Gentiva’s request, Employee agrees to deliver promptly to Gentiva all Gentiva property, including, but not limited to, patient lists or names, addresses and\nservices, patient background information, patient files, patient care directives, all drawings, blueprints, manuals, letters, notes, notebooks, reports, sketches, formulae, manufacturing processes, source codes, computer programs and similar\nitems, memoranda, information and materials concerning actual and prospective referral sources, patients or business lists and all other materials and all copies thereof relating in any way to Gentiva’s business or patients which were\nobtained by Employee during the period of Employee’s employment with Gentiva which are in Employee’s possession, custody or control. Employee further agrees not to make or retain any copies of any of the foregoing and will so\nrepresent to Gentiva upon termination of Employee’s employment.\n7.\nProprietary Information and Inventions\nEmployee agrees that any and all information and data originated by Employee while employed by Gentiva and, where applicable, by other employees or associates under Employee’s direction or supervision in connection with or as a\nresult of Employee’s employment, shall be promptly disclosed to Gentiva, shall become Gentiva’s property, and shall be kept confidential by Employee. Any and all such information and data,\nPage4of7\nreduced to written, graphic, or other tangible form and any and all copies and reproductions thereof shall be furnished to Gentiva upon request and in any case shall be returned to Gentiva upon termination of Employee’s employment with\nGentiva.\nEmployee agrees that Employee will promptly disclose to Gentiva all inventions or discoveries made, conceived, or for the first time reduced to practice in connection with or as a result of the work and/or services Employee performs for\nGentiva.\nEmployee agrees that Employee will assign the entire right, title, and interest in any such invention or inventions and any patents that may be granted thereon in any country in the world concerning such inventions to Gentiva. Employee\nfurther agrees that Employee will, without expense to Gentiva, execute all documents and do all acts which may be necessary, desirable, or convenient to enable Gentiva, at its expense, to file and prosecute applications for patents on such\ninventions, and to maintain patents granted thereon.\n8.\nNon-Disparagement\nEmployee agrees that during Employee’s employment with Gentiva and for a period of three (3) years following the termination of Employee’s employment with Gentiva, Employee will not take any action or make any statement which\ndisparages Gentiva or its practices or which disrupts or impairs Gentiva’s normal operations. Nothing in this provision shall limit any common law or statutory rights of Gentiva or obligations of Employee.\n9.\nEquitable Relief\nEmployee acknowledges that Employee possesses unique skills, knowledge and ability, and agrees that any breach of the provisions of this Agreement would cause Gentiva irreparable injury which would not reasonably or adequately be\ncompensated by damages in an action at law. Therefore, Employee agrees that Gentiva shall be entitled, in addition to any other remedies it may have under this Agreement, at law or otherwise, to immediate injunctive and other equitable\nrelief to prevent or curtail any breach of this Agreement by Employee. Nothing in this Agreement shall prohibit Gentiva from seeking or recovering any legal or monetary damages to which it may be entitled if Employee breaches this\nAgreement.\n10.\nSeverability and Modification\nEmployee and Gentiva expressly agree that the covenants and agreements contained in this Agreement are independent, separate, severable, and divisible, and in the event any portion or portions of such paragraphs are declared invalid or\nunenforceable, the validity of the remaining paragraphs of this Agreement will not be affected. If any provision contained herein shall for any reason be held excessively broad or unreasonable as to time, territory, activity, services or\ninterest to be protected or otherwise unenforceable, the court is hereby empowered and requested to modify such provision by narrowing it, so as to make it reasonable and enforceable to the extent provided under applicable law.\nPage5of7\n11.\nWaiver\nThe waiver by Gentiva of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver of any subsequent breach by Employee or of any of Gentiva’s rights under this Agreement.\n12.\nEntire Agreement\nThis Agreement contains the entire agreement between Employee and Gentiva with respect to the subject matters contained in the Agreement. It may not be changed orally, but only by an agreement in writing signed by the President of\nGentiva and Employee. This Agreement supersedes any prior or contemporaneous discussions, negotiations, understandings, arrangements, or agreements between Gentiva and Employee with respect to the subject matters contained in\nthis Agreement.\n13.\nFuture Employers\nEmployee agrees that Gentiva may notify anyone employing Employee or evidencing an intention to employ Employee as to the existence and provisions of this Agreement and may provide any such person or organization a copy of this\nAgreement. Employee agrees that for a period of two (2) years after termination of Employee’s employment with Gentiva for any reason, Employee will provide Gentiva with the identity of any employer Employee goes to work for along\nwith Employee’s job title and anticipated job duties with any such employer. Employee further agrees to provide a copy of this Agreement to anyone who employs Employee within two (2) years of the termination of Employee’s\nemployment with Gentiva.\n14.\nAttorneys’ Fees and Costs\nIn the event Employee breaches this Agreement, Employee shall be liable to Gentiva for all costs of enforcement, including attorneys’ fees and court costs, in addition to all other damages and redress available to Gentiva in equity or in\nlaw.\n15.\nBinding Effect\nThe covenants, terms, and provisions set forth in this Agreement shall inure to the benefit of and be enforceable by Gentiva and its successors, assigns, and successors-in-interest, including, without limitation, any corporation, partnership,\nor other entity with which Gentiva may be merged or by which it may be acquired. Employee may not assign Employee’s rights and obligations under this Agreement to any other party.\n16.\nEmployment At-Will Relationship\nEmployee and Gentiva agree that nothing in this Agreement alters the at-will nature of Employee’s employment relationship with Gentiva and that either Employee or Gentiva may terminate the employment relationship at any time for\nany reason. Employee further agrees that nothing in this Agreement limits Gentiva’s right to alter or modify Employee’s job title or job duties and responsibilities any time at Gentiva’s discretion.\nPage6of7\n17.\nChoice of Law And Exclusive Jurisdiction and Venue\nEmployee and Gentiva agree that this Agreement shall be governed by and construed under the laws of the State of Georgia. Employee and Gentiva further agree that it is their intent that the provisions in this Agreement which are covered\nby O.C .G .A . §§ 13-8-50 through 13-8 -59 (“Georgia Statute”) shall be governed by the Georgia Statute and that this Agreement should be interpreted to maximize the scope of the enforceability of its terms consistent with the Georgia\nStatute. Employee and Gentiva also agree that the exclusive venue for any dispute arising under this Agreement shall be either the Superior Court of Cobb County, Georgia or the United States District Court for the Northern District of\nGeorgia, Atlanta Division. Employee and Gentiva consent to the jurisdiction and venue of these courts and waive any challenge to the jurisdiction and venue of these courts.\nIN WITNESS WHEREOF, Gentiva and Employee have executed this Agreement as of the day and year set forth below.\nEMPLOYEE:\nGENTIVA HEALTH SERVICES, INC .\nBy:\nBy:\nSignature\nSignature\nPrint Name\nPrint Name\nDate:\nTitle\nDate:\nPage7of7	EX HIB IT 102\nNON-SOLICITATION, NON-COMPETITION\nAND CONFIDENTIALITY AGREEMENT\nThe undersigned enter into this NON-SOLICITATION, NON-COMPETITION AND CONFIDENTIALITY AGREEMENT (the "Agreement") between Gentiva Health Services, Inc. including its subsidiaries, affiliates, divisions, successors, and related entities (”Gentiva") and ("Employee"), effective the date signed below by Employee. Employee acknow\nedges and agrees that Gentiva is engaged in the highly competitive business of providing home healthcare and hospice services. Gentiva’s engagement in this business has involved and continues to involve the\nexpenditure of substantial amounts of money and the use of skills developed over a long period of time. As a result of these investments of money, skill and time, Gentiva has developed and will continue to develop certain valuable Trade Secrets and Confi ential Information that are peculiarto Gentiva's business and the disclosure of which would cause Gentiva great and irreparable harm. Gentiva also has invested a great deal of time and money in developing relationships with i\nEmployee acknow\nts employees, vendors, patients and referral sources.\nedges and agrees that in rendering services to Gentiva, Employee will be exposed to and learn much information about Gentiva's business, including valuable Confidential Information and Trade Secrets, which\nEmployee would not have access to if not for Employee's employment with Gentiva and which it would be unfairto disclose to others, orto use to Gentiva’s disadvantage Employee acknow\nedges and agrees that the restrictions contained in this Agreement are necessary and reasonable to protect Gentiva’s legitimate business interests in its Trade Secrets, valuable Confidential Information, relationships and\ngoodwill with its employees and relationships and goodwill with its existing and prospective vendors, patients and referral sources.  \nEmployee acknow\nedges that Employee’s skills, education and training qualify Employee to work and obtain employment which does not violate this Agreement and that the restrictions in this Agreement have been crafted as narrowly as\nreasonably possible to protect Gentiva's legitimate business interests in its Trade Secrets, valuable Confidential Information, relationships and goodwill with its employees and relationships and good will with its existing and prospective vendors, patients and referral sources. In consideration of the mutual promises and obligations in this Agreement, including but not limited to, Gentiva employing and/or continuing to employ Employee as an at-will employee, and other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, Gentiva and Employee agree as follows:\f—\nl. Non-Solicimtjon of Patients\nEmployee agrees that during Employee's employment with Gentiva and for a period of two (2) years after termination of Employee's employment with Gentiva, either with or without cause upon the initiative of either Gentiva or\nEmployee, Employee will not solicit or attempt to solicit (either directly or by assisting others) any business from Gentiva's patients or prospective patients which are actively being sought by Gentiva at the time of Employee' 5 termination\nfor the purpose of providing services that are competitive with the type of services provided by Gentiva at the time of Employee' 5 termination This restriction shall apply only to patients and prospective patients with whom Employee had\nMaterial Contact during the last two years of Employee's employment with Gentiva. For purposes of this Section 1 "Material Contact" means conmct between Employee and an existing or prospective patient of Gentiva: (a) with whom\nEmployee dealt on behalf of Gentiva within two years prior to the date of Employee's termination,- (b) whose dealings with Gentiva were coordinated or supervised by Employee within two years prior to the date of Employee’s\ntermination,- (c) about whom Employee obtained confidential information in the ordinary course of business as a result of Employee's association with Gentiva within two years prior to the date of Employee's termination,- or, (d) who\nreceives services authorized by Gentiva, the sale or provision of which results or resulted in compensation, commissions, or earnings for Employee within two years prior to the date of Employee's termination.\n2. Non-Solicimtjon of Referral Sources\nEmployee agrees that during Employee's employment with Gentiva and for a period of two (2) years after termination of Employee's employment with Gentiva, either with or without cause upon the initiative of either Gentiva or\nEmployee, Employee will not solicit or attempt to solicit (either directly or by assisting others) any business or referrals from Gentiva' s referral sources or prospective referral sources which are actively being sought by Gentiva at the time\nof Employee' 5 termination for the purpose of providing services that are competitive with the type of services provided by Gentiva at the time of Employee' 5 termination. This restriction shall apply only to referral sources and prospective\nreferral sources with whom Employee had Material Conmct during the last two years of Employee' 5 employment with Gentiva. For purposes of this Section 2 ”Material Conmct" means contact between Employee and an existing or\nprospective referral source of Gentiva: (a) with whom Employee dealt on behalf of Gentiva within two years priorto the date of Employee’s termination; (b) whose dealings with Gentiva were coordinated or supervised by Employee\nwithin two years priorto the date of Employee' 5 termination; (c) about whom Employee obtained confidential information in the ordinary course of business as a result of Employee' 5 association with Gentiva within two years prior to the\ndate of Employee' 5 termination,- or, (d) who refers services authorized by Gentiva, the sale or provision of which results or resulted in compensation, commissions, or earnings for Employee within two years prior to the date of\nEmployee's termination\nPage 2 of 7\n3. Non-Solicimtion of Employees\nEmployee agrees that during Employee's employment with Gentiva and for a period of two (2) years after termination of Employee's employment with Gentiva, either with or without cause upon the initiative of either Gentiva or\nEmployee, Employee will not recruit, hire or attempt to recruit or hire, or solicit or encourage to leave their employment with Gentiva (either directly or by assisting others) any other employee of Gentiva with whom Employee had\nMaterial Contact during the last two years of Employee's employment with Gentiva. For purposes of this Section 3 "Material Contact" means conmct for the purpose of furthering Gentiva’s business.\n4. Non-C ompetition\nEmployee agrees that during Employee's employment with Gentiva, Employee will not (either directly or by assisting others) compete with Gentiva or engage in any activity or pursue any interest that in any way conflicts with Gentiva’s\ninterests\nEmployee further agrees that for a period of two (2) years after termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or Employee, Employee shall not (either on\nEmployee's own behalf or on another’ 5 behalf) perform job activities of the type Employee conducted or provided for Gentiva within the two years prior to Employee' 5 termination, for purposes of providing services that are competitive\nwith services provided by Gentiva at the time of Employee’s termination. This restriction shall apply only within the territory where Employee is working for Gentiva at the time of Employee's termination Employee and Gentiva agree\nand acknowledge that the territory where Employee is working for Gentiva at the time of Employee' 5 termination includes the geographic territory within: (a) a 20 mile radius of every Gentiva office or facility over which or in which\nEmployee had job responsibilities at the time of Employee' 5 termination; (b) a 20 mile radius of every Gentiva office or facility which is included in Employee's geographic territory of job responsibility at the time of Employee' 5\ntermination,- and, (c) a 50 mile radius of Employee’s primary place of employment at the time of Employee' 5 termination Employee agrees that because of the nature of Gentiva’s business, the nature of Employee's job responsibilities,\nand the nature of the Confidential Information and Trade Secrets of Gentiva to which Gentiva will give Employee access, any breach of this provision by Employee would result in the inevitable disclosure of Gentiva' 5 Trade Secrets and\nConfidential Information to its direct competitors.\n5. Confidentiality\nDuring Employee' 5 employment with G entiva and at any time after the termination of Employee' s employment with G entiva, either with or without cause upon the initiative of either G entiva or Employee, Employee will not publish or\ndisclose, use for Employee’s own benefit or the benefit of others, or divulge or convey to others, any Trade Secrets of Gentiva or that of third parties obtained by Employee in the course of Employee’s employment with Gentiva "Trade\nSecret" means any and all information, knowledge or dam in any form whatsoever, tangible or intangible, that is considered a trade secret under\nPage 3 of 7\napplicable law, This promise of confidentiality is in addition to, and does not limit, any common law or statutory rights of Gentiva to prevent disclosure, publication or use of its Trade Secrets.\nEmployee further agrees that during Employee' s employment with Gentiva and at any time after the termination of Employee's employment with Gentiva, either with or without cause upon the initiative of either Gentiva or Employee,\nEmployee will not publish or disclose, use for Employee's own benefit or the benefit of others, or divulge or convey to others, any Confidential Information of Gentiva. "Confidential Information" means any and all Gentiva dam and\ninformation in any form whatsoever, tangible or intangible, which: relates to the business of Gentiva, regardless of whether the data or information constitutes a Trade Secret; is disclosed to Employee or of which Employee became aware\nas a consequence of Employee’s relationship with Gentiva; has value to Gentiva; and is not generally known to Gentiva’s competitors Confidential Information includes Gentiva's Trade Secrets, Gentiva’s methods of operation, names of\nGentiva patients and referral sources, Gentiva price lists, Gentiva's financial information and projections, and personnel data on Gentiva employees. Confidential Information does not include data or information: (a) which has been\nvoluntarily disclosed to the public by Gentiva, except where such public disclosure has been made by Employee without authorization from Gentiva; (b) which has been independently developed and disclosed by others,- or (c) which has\notherwise entered the public domain through lawful means. This promise of confidentiality is in addition to, and does not limit, any common law or statutory rights of Gentiva to prevent disclosure, publication or use of its Confidential\nInformation.\n6. Return of Gentiva Properg\nUpon termination of Employee' s employment with Gentiva or at any other time at Gentiva's request, Employee agrees to deliver promptly to Gentiva all Gentiva property, including, but not limited to, patient lists or names, addresses and\nservices, patient background information, patient files, patient care directives, all drawings, blueprints, manuals, letters, notes, notebooks, reports, sketches, formulae, manufacturing processes, source codes, computer programs and similar\nitems, memoranda, information and materials concerning actual and prospective referral sources, patients or business lists and all other materials and all copies thereof relating in any way to Gentiva' s business or patients which were\nobtained by Employee during the period of Employee’s employment with Gentiva which are in Employee’s possession, custody or control, Employee further agrees not to make or retain any copies of any of the foregoing and will so\nrepresent to Gentiva upon termination of Employee's employment.\n7. Propriet_ai_'y Information and Inventions\nEmployee agrees that any and all information and data originated by Employee while employed by Gentiva and, where applicable, by other employees or associates under Employee’s direction or supervision in connection with or as a\nresult of Employee' s employment, shall be promptly disclosed to Gentiva, shall become Gentiva's property, and shall be kept confidential by Employee. Any and all such information and data,\nPage 4 of 7\nreduced to written, graphic, or other tangible form and any and all copies and reproductions thereof shall be furnished to Gentiva upon request and in any case shall be returned to Gentiva upon termination of Employee' s employment with\nG entiva,\nEmployee agrees that Employee will promptly disclose to Gentiva all inventions or discoveries made, conceived, or for the first time reduced to practice in connection with or as a result of the work and/or services Employee performs for\nG entiva,\nEmployee agrees that Employee will assign the entire right, title, and interest in any such invention or inventions and any patents that may be granted thereon in any country in the world concerning such inventions to Gentiva. Employee\nfurther agrees that Employee will, without expense to Gentiva, execute all documents and do all acts which may be necessary, desirable, or convenient to enable Gentiva, at its expense, to file and prosecute applications for patents on such\ninventions, and to maintain patents granted thereon.\n8. Non-Digparagement\nEmployee agrees that during Employee's employment with Gentiva and for a period of three (3) years following the termination of Employee’s employment with Gentiva, Employee will not mke any action or make any statement which\ndisparages Gentiva or its practices or which disrupts orimpairs Gentiva's normal operations. Nothing in this provision shall limit any common law or statutory rights of Gentiva or obligations of Employee.\n9. E flihble Relief\nEmployee acknowledges that Employee possesses unique skills, knowledge and ability, and agrees that any breach of the provisions of this Agreement would cause Gentiva irreparable injury which would not reasonably or adequately be\ncompensated by damages in an action at law. Therefore, Employee agrees that Gentiva shall be entitled, in addition to any other remedies it may have under this Agreement, at law or otherwise, to immediate injunctive and other equitable\nrelief to prevent or curtail any breach of this Agreement by Employee, Nothing in this Agreement shall prohibit Gentiva from seeking or recovering any legal or monetary damages to which it may be entitled if Employee breaches this\nA greement\n10. Severabilig and Modification\nEmployee and Gentiva expressly agree that the covenants and agreements conmined in this Agreement are independent, separate, severable, and divisible, and in the event any portion or portions of such paragraphs are declared invalid or\nunenforceable, the validity of the remaining paragraphs of this Agreement will not be affected. If any provision conmined herein shall for any reason he held excessively broad or unreasonable as to time, territory, activity, services or\ninterest to be protected or otherwise unenforceable, the court is hereby empowered and requested to modify such provision by narrowing it, so as to make it reasonable and enforceable to the extent provided under applicable law,\nPage 5 of 7\n11. Waiver\nThe waiver by Gentiva of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver of any subsequent breach by Employee or of any of Gentiva's rights under this Agreement.\n12. E ntjre Aggeement\nThis Agreement contains the entire agreement between Employee and Gentiva with respect to the subject matters contained in the Agreement. It may not be changed orally, but only by an agreement in writing signed by the President of\nGentiva and Employee. This Agreement supersedes any prior or contemporaneous discussions, negotiations, understandings, arrangements, or agreements between Gentiva and Employee with respect to the subject matters contained in\nthis A greement.\n13. Future Employers\nEmployee agrees that Gentiva may notify anyone employing Employee or evidencing an intention to employ Employee as to the existence and provisions of this Agreement and may provide any such person or organization a copy of this\nAgreement. Employee agrees that for a period of two (2) years after termination of Employee's employment with Gentiva for any reason, Employee will provide Gentiva with the identity of any employer Employee goes to work for along\nwith Employee’s job title and anticipated job duties with any such employer. Employee further agrees to provide a copy of this Agreement to anyone who employs Employee within two (2) years of the termination of Employee's\nemployment with Gentiva.\nl4. Attorngps‘ Fees and Costs\nIn the event Employee breaches this Agreement, Employee shall be liable to Gentiva for all costs of enforcement, including attorneys' fees and court costs, in addition to all other damages and redress available to Gentiva in equity or in\nlaw.\n15. Binding Effect\nThe covenants, terms, and provisions set forth in this Agreement shall inure to the benefit of and be enforceable by Gentiva and its successors, assigns, and successors-in-interest, including, without limitation, any corporation, partnership,\nor other entity with which Gentiva may be merged or by which it may be acquired. Employee may not assign Employee’s rights and obligations under this Agreement to any other party.\n16. Employment At-W ill Relationship\nEmployee and Gentiva agree that nothing in this Agreement alters the at-will nature of Employee’s employment relationship with Gentiva and that either Employee or Gentiva may terminate the employment relationship at any time for\nany reason. Employee further agrees that nothing in this Agreement limits Gentiva’s right to alter or modify Employee's job title or job duties and responsibilities any time at Gentiva's discretion.\nPage 6 of 7\n17. Choice of Law And ExclusiveJurisdiction and Venue\nEmployee and Gentiva agree that this Agreement shall be governed by and construed under the laws of the State of Georgia Employee and Gentiva further agree that it is their intent that the provisions in this Agreement which are covered\nby 006 .A. §§ 13-8-50 through 13-8-59 (“Georgia Statute") shall be governed by the Georgia Statute and that this Agreement should be interpreted to maximize the scope of the enforceability of its terms consistent with the Georgia\nStatute Employee and Gentiva also agree that the exclusive venue for any dispute arising under this Agreement shall be either the Superior Court of Cobb County, Georgia or the United States District Court for the Northern District of\nGeorgia, Atlanta Division. Employee and Gentiva consent to the jurisdiction and venue of these courts and waive any challenge to the jurisdiction and venue of these courts.\nIN WITNESS WHEREOF, Gentiva and Employee have executed this Agreement as of the day and year set forth below.\nEMPLOYEE: GENTIVA HEALTH SERVICES, INC.\nBy: By:\nS—ture—igna 7W re\nPrint Name Print Name\nDate:\nT'fl—i e\nDate:\nPage 7 of 7	EXHIBIT 10.2\nNON-SOLICITATION, NON-COMPETITION\nAND CONFIDENTIALITY AGREEMENT\nThe undersigned enter into this NON-SOLICITATION, NON-COMPETITION AND CONFIDENTIALITY AGREEMENT (the Agreement" between Gentiva Health Services, Inc. including its subsidiaries, affiliates, divisions,\nsuccessors, and related entities ("Gentiva") and\n""Employee"), effective the date signed below by Employee.\nEmployee acknowledges and agrees that Gentiva is engaged in the highly competitive business of providing home healthcare and hospice services. Gentiva's engagement in this business has involved and continues to involve the\nexpenditure of substantial amounts of money and the use of skills developed over a long period of time As a result of these investments of money, skill and time, Gentiva has developed and will continue to develop certain valuable Trade\nSecrets and Confidential Information that are peculiar to Gentiva's business and the disclosure of which would cause Gentiva great and irreparable harm Gentiva also has invested a great deal of time and money in developing\nrelationships with its employees, vendors, patients and referral sources.\nEmployee acknowledges and agrees that in rendering services to Gentiva, Employee will be exposed to and leam much information about Gentiva's business including valuable Confidential Information and Trade Secrets, which\nEmployee would not have access to if not for Employee's employment with Gentiva and which it would be unfair to disclose to others, or to use to Gentiva's disadvantage.\nEmployee acknowledges and agrees that the restrictions contained in this Agreement are necessary and reasonable to protect Gentiva's legitimate business interests in its Trade Secrets, valuable Confidential Information, relationships and\ngoodwill with its employees and relationships and goodwill with its existing and prospective vendors, patients and referral sources.\nEmployee acknowledges that Employee's skills, education and training qualify Employee to work and obtain employment which does not violate this A greement and that the restrictions in this A greement have been crafted as narrowly as\nreasonably possible to protect Gentiva's legitimate business interests in its Trade Secrets, valuable Confidential Information, relationships and goodwill with its employees and relationships and good will with its existing and prospective\nvendors, patients and referral sources\nIn consideration of the mutual promises and obligations in this Agreement including but not limited to, Gentiva employing and/or continuing to employ Employee as an at will employee, and other good and valuable consideration the\nreceipt and sufficiency of which are hereby mutually acknowledged, Gentiva and Employee agree as follows:\n1.\nNon-Solicitation of Patients\nEmployee agrees that during Employee's employment with Gentiva and for a period of two (2) years after termination of Employee's employment with Gentiva, either with or without cause upon the initiative of either Gentiva or\nEmployee, Employee wil not solicit or attempt to solicit (either directly or by assisting others) any business from Gentiva's patients or prospective patients which are actively being sought by Gentiva at the time of Employee's termination\nfor the purpose of providing services that are competitive with the type of services provided by Gentiva at the time of Employee's termination. This restriction shall apply only to patients and prospective patients with whom Employee had\nMaterial Contact during the last two years of Employee's employment with Gentiva. For purposes of this Section 1 "Material Contact" means contact between Employee and an existing or prospective patient of Gentiva: (a) with whom\nEmployee dealt on behalf of Gentiva within two years prior to the date of Employee's termination; (b) whose dealings with Gentiva were coordinated or supervised by Employee within two years prior to the date of Employee's\ntermination (c) about whom Employee obtained confidential information in the ordinary course of business as a result of Employee's association with Gentiva within two years prior to the date of Employee's termination; or, (d) who\nreceives services authorized by Gentiva, the sale or provision of which results or resulted in compensation, commissions, or earnings for Employee within two years prior to the date of Employee's termination.\n2.\nNon-Solicitation of Referral Sources\nEmployee agrees that during Employee's employment with Gentiva and for a period of two (2) years after termination of Employee's employment with Gentiva, either with or without cause upon the initiative of either Gentiva\nor\nEmployee, Employee will no solicit or attempt to solicit (either directly or by assisting others) any business or referrals from Gentiva's referral sources or prospective referral sources which are actively being sought by Gentiva at the time\nof Employee's termination for the purpose of providing services that are competitive with the type of services provided by Gentiva at the time of Employee's termination. This restriction shall apply only to referral sources and prospective\nreferral sources with whom Employee had Material Contact during the last two years of Employee's employment with Gentiva. For purposes of this Section 2 "Materia Contact" means contact between Employee and an existing or\nprospective referral source of Gentiva: (a) with whom Employee dealt on behalf of Gentiva within two years prior to the date of Employee's termination; (b) whose dealings with Gentiva were coordinated or supervised by Employee\nwithin two years prior to the date of Employee's termination; (c) about whom Employee obtained confidentia information in the ordinary course of business as a result of Employee's association with Gentiva within two years prior to\nthe\ndate of Employee's termination; or, (d) who refers services authorized by Gentiva, the sale or provision of which results or resulted in compensation, commissions, or earnings for Employee within two years prior to the date\nof\nEmployee's termination.\nPage 2 of 7\n3.\nNon-Solicitation of Employees\nEmployee agrees that during Employee's employment with Gentiva and for a period of two (2) years after termination of Employee's employment with Gentiva, either with or without cause upon the initiative of either Gentiva or\nEmployee, Employee wil not recruit hire or attempt to recruit or hire, or solicit or encourage to leave their employment with Gentiva (either directly or by assisting others) any other employee of Gentiva with whom Employee had\nMaterial Contact during the last two years of Employee's employment with Gentiva. For purposes of this Section 3 "Material Contact" means contact for the purpose of furthering Gentiva's business.\n4.\nNon -Competition\nEmployee agrees that during Employee's employment with Gentiva, Employee will not (either directly or by assisting others) compete with Gentiva or engage in any activity or pursue any interest that in any way conflicts with Gentiva's\ninterests.\nEmployee further agrees that for a period of two (2) years after termination of Employee's employment with Gentiva, either with or without cause upon the initiative of either Gentiva or Employee, Employee shall not (either on\nEmployee's own behalf or on another's behalf) perform job activities of the type Employee conducted or provided for Gentiva within the two years prior to Employee's termination, for purposes of providing services that are competitive\nwith services provided by Gentiva at the time of Employee's termination. This restriction shall apply only within the territory where Employee is working for Gentiva at the time of Employee's termination. Employee and Gentiva agree\nand acknowledge that the territory where Employee is working for Gentiva at the time of Employee's termination includes the geographic territory within: (a) a 20 mile radius of every Gentiva office or facility over which or in which\nEmployee had job responsibilities at the time of Employee's termination (b) a 20 mile radius of every Gentiva office or facility which is included in Employee's geographic territory of job responsibility at the time of Employee's\ntermination; and, (c) a 50 mile radius of Employee's primary place of employment at the time of Employee's termination Employee agrees that because of the nature of Gentiva's business, the nature of Employee' job responsibilities,\nand the nature of the Confidential Information and Trade Secrets of Gentiva to which Gentiva will give Employee access, any breach of this provision by Employee would result in the inevitable disclosure of Gentiva's Trade Secrets and\nConfidential Information to its direct competitors.\n5.\nConfidentiality\nDuring Employee's employment with Gentiva and at any time after the termination of Employee's employment with Gentiva, either with or without cause upon the initiative of either Gentiva or Employee, Employee will not publish or\ndisclose, use for Employee's own benefi or the benefit of others, or divulge or convey to others, any Trade Secrets of Gentiva or that of third parties obtained by Employee in the course of Employee's employment with Gentiva. "Trade\nSecret" means any and all information, knowledge or data in any form whatsoever, tangible or intangible, that is considered a trade secret under\nPage 3 of 7\napplicable law. This promise of confidentiality is in addition to, and does no limit, any common law or statutory rights of Gentiva to prevent disclosure, publication or use of its Trade Secrets.\nEmployee further agrees that during Employee's employment with Gentiva and at any time after the termination of Employee's employment with Gentiva, either with or without cause upon the initiative of either Gentiva or Employee,\nEmployee will not publish or disclose, use for Employee's own benefit or the benefit of others, or divulge or convey to others, any Confidential Information of Gentiva. "Confidential Information" means any and all Gentiva data and\ninformation in any form whatsoever, tangible or intangible, which: relates to the business of Gentiva, regardless of whether the data or information constitutes a Trade Secret; is disclosed to Employee or of which Employee became aware\nas a consequence of Employee's relationship with Gentiva; has value to Gentiva; and is not generally known to Gentiva's competitors Confidential Information includes Gentiva's Trade Secrets, Gentiva's methods of operation names of\nGentiva patients and referral sources, Gentiva price lists, Gentiva's financial information and projections, and personnel data on Gentiva employees. Confidential Information does not include data or information: (a) which has been\nvoluntarily disclosed to the public by Gentiva, except where such public disclosure has been made by Employee without authorization from Gentiva; (b) which has been independently developed and disclosed by others; or (c) which has\notherwise entered the public domain through lawful means. This promise of confidentiality is in addition to, and does not limit, any common law or statutory rights of Gentiva to prevent disclosure publication or use of its Confidential\nInformation.\n6.\nReturn of Gentiva Property\nUpon termination of Employee's employment with Gentiva or at any other time at Gentiva's request, Employee agrees to deliver promptly to Gentiva all Gentiva property, including, but not limited to, patien lists or names, addresses and\nservices, patient background inforation, patient files patient care directives, all drawings, blueprints, manuals, letters, notes, notebooks reports, sketches, formulae, manufacturing processes, source codes, computer programs and similar\nitems, memoranda, information and materials concerning actual and prospective referral sources, patients or business lists and all other materials and all copies thereof relating in any way to Gentiva's business or patients which were\nobtained by Employee during the period of Employee's employment with Gentiva which are in Employee's possession custody or control. Employee further agrees not to make or retain any copies of any of the foregoing and will so\nrepresent to Gentiva upon termination of Employee's employment.\n7.\nProprietary Information and Inventions\nEmployee agrees that any and all information and data originated by Employee while employed by Gentiva and, where applicable, by other employees or associates under Employee's direction or supervision in connection with or as a\nresult of Employee's employment, shall be promptly disclosed to Gentiva, shall become Gentiva's property, and shall be kept confidential by Employee. Any and all such information and data,\nPage 4 of 7\nreduced to written, graphic, or other tangible form and any and all copies and reproductions thereof shall be furnished to Gentiva upon request and in any case shall be returned to Gentiva upon termination of Employee's employment with\nGentiva.\nEmployee agrees that Employee will promptly disclose to Gentiva all inventions or discoveries made conceived, or for the first time reduced to practice in connection with or as a result of the work and/or services Employee performs for\nGentiva.\nEmployee agrees that Employee will assign the entire right, title, and interest in any such invention or inventions and any patents that may be granted thereon in any country in the world concerning such inventions to Gentiva. Employee\nfurther agrees that Employee will, without expense to Gentiva, execute all documents and do all acts which may be necessary, desirable, or convenient to enable Gentiva at its expense, to file and prosecute applications for patents on such\ninventions, and to maintain patents granted thereon.\n8.\nNon-Disparagement\nEmployee agrees that during Employee's employment with Gentiva and for a period of three (3) years following the termination of Employee's employment with Gentiva, Employee will not take any action or make any statement which\ndisparages Gentiva or its practices or which disrupts or impairs Gentiva's noral operations. Nothing in this provision shall limit any common law or statutory rights of Gentiva or obligations of Employee.\n9.\nEquitable Relief\nEmployee acknowledges that Employee possesses unique skills, knowledge and ability, and agrees that any breach of the provisions of this A greement would cause Gentiva irreparable injury which would not reasonably or adequately be\ncompensated by damages in an action at law. Therefore, Employee agrees that Gentiva shall be entitled in addition to any other remedies it may have under this Agreement, at law or otherwise, to immediate injunctive and other equitable\nrelief to prevent or curtai any breach of this Agreement by Employee. Nothing in this Agreement shall prohibit Gentiva from seeking or recovering any legal or monetary damages to which it may be entitled if Employee breaches\nthis\nAgreement.\n10.\nSeverability and Modification\nEmployee and Gentiva expressly agree that the covenants and agreements contained in this A greement are independent, separate severable and divisible and in the event any portion or portions of such paragraphs are declared invalid or\nunenforceable, the validity of the remaining paragraphs of this Agreement will not be affected If any provision contained herein shall for any reason be held excessively broad or unreasonable as to time, territory, activity, services or\ninterest to be protected or otherwise unenforceable, the court is hereby empowered and requested to modify such provision by narrowing it, so as to make it reasonable and enforceable to the extent provided under applicable law.\nPage 5 of 7\n11.\nw Waiver\nThe waiver by Gentiva of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver of any subsequent breach by Employee or of any of Gentiva's rights under this Agreement.\n12.\nEntire Agreement\nThis Agreement contains the entire agreement between Employee and Gentiva with respect to the subject matters contained in the Agreement. It may not be changed orally, but only by an agreement in writing signed by the President of\nGentiva and Employee This Agreement supersedes any prior or contemporaneous discussions, negotiations, understandings, arrangements, or agreements between Gentiva and Employee with respect to the subject matters contained in\nthis Agreement.\n13.\nFuture Employers\nEmployee agrees that Gentiva may notify anyone employing Employee or evidencing an intention to employ Employee as to the existence and provisions of this Agreement and may provide any such person or organization a copy of this\nAgreement Employee agrees that for a period of two (2) years after termination of Employee's employment with Gentiva for any reason Employee will provide Gentiva with the identity of any employer Employee goes to work for along\nwith Employee's job title and anticipated job duties with any such employer. Employee further agrees to provide a copy of this Agreement to anyone who employs Employee within two (2) years of the termination of Employee's\nemployment with Gentiva.\n14.\nAttorneys Fees and Costs\nIn the event Employee breaches this Agreement, Employee shall be liable to Gentiva for all costs of enforcement, including attomeys' fees and court costs, in addition to all other damages and redress available to Gentiva in equity or in\nlaw.\n15.\nBinding Effect\nThe covenants, terms, and provisions set forth in this Agreement shall inure to the benefit of and be enforceable by Gentiva and its successors, assigns, and successors-in-interest, including, without limitation, any corporation, partnership,\nor other entity with which Gentiva may be merged or by which it may be acquired. Employee may not assign Employee's rights and obligations under this A greement to any other party.\n16.\nEmploymen At-Will Relationship\nEmployee and Gentiva agree that nothing in this A greement alters the at-will nature of Employee's employment relationship with Gentiva and that either Employee or Gentiva may terminate the employment relationship at any time for\nany reason. Employee further agrees that nothing in this Agreement limits Gentiva's right to alter or modify Employee' s job title or job duties and responsibilities any time at Gentiva's discretion.\nPage 6 of 7\n17.\nChoice of Law And Exclusive Jurisdiction and Venue\nEmployee and Gentiva agree that this Agreement shall be governed by and construed under the laws of the State of Georgia. Employee and Gentiva further agree that it is their intent that the provisions in this Agreement which are covered\nby O.C.G.A 13-8-50 through 13-8-59 ("Georgia Statute") shall be govered by the Georgia Statute and that this Agreement should be interpreted to maximize the scope of the enforceability of its terms consistent with the Georgia\nStatute. Employee and Gentiva also agree that the exclusive venue for any dispute arising under this Agreement shall be either the Superior Court of Cobb County, Georgia or the United States District Court for the Northem District of\nGeorgia, Atlanta Division. Employee and Gentiva consent to the jurisdiction and venue of these courts and waive any challenge to the jurisdiction and venue of these courts.\nIN WITNESS WHEREOF, Gentiva and Employee have executed this Agreement as of the day and year set forth below.\nEMPLOY EE:\nGENTIVA HEALTH SERVICES INC.\nBy:\nBy:\nS1gnature\ns1gnature\nPrint Name\nPrint Name\nDate:\nTitle\nDate:\nPage 7 of 7	EXHIBIT 10.2\nNON-SOLICITATION , NON -COMPETITION\nAND CONFIDENTIALITY AGREEMENT\nThe undersigned enter into this NON-SOLICITATION , NON -COMPETITION AND CONFIDENTIALITY AGREEMENT (the “Agreement”) between Gentiva Health Services, Inc. including its subsidiaries, affiliates, divisions,\nsuccessors, and related entities (“Gentiva”) and\n(“Employee”), effective the date signed below by Employee.\nEmployee acknowledges and agrees that Gentiva is engaged in the highly competitive business of providing home healthcare and hospice services. Gentiva’s engagement in this business has involved and continues to involve the\nexpenditure of substantial amounts of money and the use of skills developed over a long period of time. As a result of these investments of money, skill and time, Gentiva has developed and will continue to develop certain valuable Trade\nSecrets and Confidential Information that are peculiar to Gentiva’s business and the disclosure of which would cause Gentiva great and irreparable harm. Gentiva also has invested a great deal of time and money in developing\nrelationships with its employees, vendors, patients and referral sources.\nEmployee acknowledges and agrees that in rendering services to Gentiva, Employee will be exposed to and learn much information about Gentiva’s business, including valuable Confidential Information and Trade Secrets, which\nEmployee would not have access to if not for Employee’s employment with Gentiva and which it would be unfair to disclose to others, or to use to Gentiva’s disadvantage.\nEmployee acknowledges and agrees that the restrictions contained in this Agreement are necessary and reasonable to protect Gentiva’s legitimate business interests in its Trade Secrets, valuable Confidential Information, relationships and\ngoodwill with its employees and relationships and goodwill with its existing and prospective vendors, patients and referral sources.\nEmployee acknowledges that Employee’s skills, education and training qualify Employee to work and obtain employment which does not violate this Agreement and that the restrictions in this Agreement have been crafted as narrowly as\nreasonably possible to protect Gentiva’s legitimate business interests in its Trade Secrets, valuable Confidential Information, relationships and goodwill with its employees and relationships and good will with its existing and prospective\nvendors, patients and referral sources.\nIn consideration of the mutual promises and obligations in this Agreement, including but not limited to, Gentiva employing and/or continuing to employ Employee as an at-will employee, and other good and valuable consideration, the\nreceipt and sufficiency of which are hereby mutually acknowledged, Gentiva and Employee agree as follows:\n1.\nNon-Solicitation of Patients\nEmployee agrees that during Employee’s employment with Gentiva and for a period of two (2) years after termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or\nEmployee, Employee will not solicit or attempt to solicit (either directly or by assisting others) any business from Gentiva’s patients or prospective patients which are actively being sought by Gentiva at the time of Employee’s termination\nfor the purpose of providing services that are competitive with the type of services provided by Gentiva at the time of Employee’s termination. This restriction shall apply only to patients and prospective patients with whom Employee had\nMaterial Contact during the last two years of Employee’s employment with Gentiva. For purposes of this Section 1 “Material Contact” means contact between Employee and an existing or prospective patient of Gentiva: (a) with whom\nEmployee dealt on behalf of Gentiva within two years prior to the date of Employee’s termination; (b) whose dealings with Gentiva were coordinated or supervised by Employee within two years prior to the date of Employee’s\ntermination; (c) about whom Employee obtained confidential information in the ordinary course of business as a result of Employee’s association with Gentiva within two years prior to the date of Employee’s termination; or, (d) who\nreceives services authorized by Gentiva, the sale or provision of which results or resulted in compensation, commissions, or earnings for Employee within two years prior to the date of Employee’s termination.\n2.\nNon-Solicitation of Referral Sources\nEmployee agrees that during Employee’s employment with Gentiva and for a period of two (2) years after termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or\nEmployee, Employee will not solicit or attempt to solicit (either directly or by assisting others) any business or referrals from Gentiva’s referral sources or prospective referral sources which are actively being sought by Gentiva at the time\nof Employee’s termination for the purpose of providing services that are competitive with the type of services provided by Gentiva at the time of Employee’s termination. This restriction shall apply only to referral sources and prospective\nreferral sources with whom Employee had Material Contact during the last two years of Employee’s employment with Gentiva. For purposes of this Section 2 “Material Contact” means contact between Employee and an existing or\nprospective referral source of Gentiva: (a) with whom Employee dealt on behalf of Gentiva within two years prior to the date of Employee’s termination; (b) whose dealings with Gentiva were coordinated or supervised by Employee\nwithin two years prior to the date of Employee’s termination; (c) about whom Employee obtained confidential information in the ordinary course of business as a result of Employee’s association with Gentiva within two years prior to the\ndate of Employee’s termination; or, (d) who refers services authorized by Gentiva, the sale or provision of which results or resulted in compensation, commissions, or earnings for Employee within two years prior to the date of\nEmployee’s termination.\nPage2of7\n3.\nNon-Solicitation of Employees\nEmployee agrees that during Employee’s employment with Gentiva and for a period of two (2) years after termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or\nEmployee, Employee will not recruit, hire or attempt to recruit or hire, or solicit or encourage to leave their employment with Gentiva (either directly or by assisting others) any other employee of Gentiva with whom Employee had\nMaterial Contact during the last two years of Employee’s employment with Gentiva. For purposes of this Section 3 “Material Contact” means contact for the purpose of furthering Gentiva’s business.\n4.\nNon-Competition\nEmployee agrees that during Employee’s employment with Gentiva, Employee will not (either directly or by assisting others) compete with Gentiva or engage in any activity or pursue any interest that in any way conflicts with Gentiva’s\ninterests.\nEmployee further agrees that for a period of two (2) years after termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or Employee, Employee shall not (either on\nEmployee’s own behalf or on another’s behalf) perform job activities of the type Employee conducted or provided for Gentiva within the two years prior to Employee’s termination, for purposes of providing services that are competitive\nwith services provided by Gentiva at the time of Employee’s termination. This restriction shall apply only within the territory where Employee is working for Gentiva at the time of Employee’s termination. Employee and Gentiva agree\nand acknowledge that the territory where Employee is working for Gentiva at the time of Employee’s termination includes the geographic territory within: (a) a 20 mile radius of every Gentiva office or facility over which or in which\nEmployee had job responsibilities at the time of Employee’s termination; (b) a 20 mile radius of every Gentiva office or facility which is included in Employee’s geographic territory of job responsibility at the time of Employee’s\ntermination; and, (c) a 50 mile radius of Employee’s primary place of employment at the time of Employee’s termination. Employee agrees that because of the nature of Gentiva’s business, the nature of Employee’s job responsibilities,\nand the nature of the Confidential Information and Trade Secrets of Gentiva to which Gentiva will give Employee access, any breach of this provision by Employee would result in the inevitable disclosure of Gentiva’s Trade Secrets and\nConfidential Information to its direct competitors.\n5.\nConfidentiality\nDuring Employee’s employment with Gentiva and at any time after the termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or Employee, Employee will not publish or\ndisclose, use for Employee’s own benefit or the benefit of others, or divulge or convey to others, any Trade Secrets of Gentiva or that of third parties obtained by Employee in the course of Employee’s employment with Gentiva. “Trade\nSecret” means any and all information, knowledge or data in any form whatsoever, tangible or intangible, that is considered a trade secret under\nPage3of7\napplicable law. This promise of confidentiality is in addition to, and does not limit, any common law or statutory rights of Gentiva to prevent disclosure, publication or use of its Trade Secrets.\nEmployee further agrees that during Employee’s employment with Gentiva and at any time after the termination of Employee’s employment with Gentiva, either with or without cause upon the initiative of either Gentiva or Employee,\nEmployee will not publish or disclose, use for Employee’s own benefit or the benefit of others, or divulge or convey to others, any Confidential Information of Gentiva. “Confidential Information” means any and all Gentiva data and\ninformation in any form whatsoever, tangible or intangible, which: relates to the business of Gentiva, regardless of whether the data or information constitutes a Trade Secret; is disclosed to Employee or of which Employee became aware\nas a consequence of Employee’s relationship with Gentiva; has value to Gentiva; and is not generally known to Gentiva’s competitors. Confidential Information includes Gentiva’s Trade Secrets, Gentiva’s methods of operation, names of\nGentiva patients and referral sources, Gentiva price lists, Gentiva’s financial information and projections, and personnel data on Gentiva employees. Confidential Information does not include data or information: (a) which has been\nvoluntarily disclosed to the public by Gentiva, except where such public disclosure has been made by Employee without authorization from Gentiva; (b) which has been independently developed and disclosed by others; or (c) which has\notherwise entered the public domain through lawful means. This promise of confidentiality is in addition to, and does not limit, any common law or statutory rights of Gentiva to prevent disclosure, publication or use of its Confidential\nInformation.\n6.\nReturn of Gentiva Property\nUpon termination of Employee’s employment with Gentiva or at any other time at Gentiva’s request, Employee agrees to deliver promptly to Gentiva all Gentiva property, including, but not limited to, patient lists or names, addresses and\nservices, patient background information, patient files, patient care directives, all drawings, blueprints, manuals, letters, notes, notebooks, reports, sketches, formulae, manufacturing processes, source codes, computer programs and similar\nitems, memoranda, information and materials concerning actual and prospective referral sources, patients or business lists and all other materials and all copies thereof relating in any way to Gentiva’s business or patients which were\nobtained by Employee during the period of Employee’s employment with Gentiva which are in Employee’s possession, custody or control. Employee further agrees not to make or retain any copies of any of the foregoing and will so\nrepresent to Gentiva upon termination of Employee’s employment.\n7.\nProprietary Information and Inventions\nEmployee agrees that any and all information and data originated by Employee while employed by Gentiva and, where applicable, by other employees or associates under Employee’s direction or supervision in connection with or as a\nresult of Employee’s employment, shall be promptly disclosed to Gentiva, shall become Gentiva’s property, and shall be kept confidential by Employee. Any and all such information and data,\nPage4of7\nreduced to written, graphic, or other tangible form and any and all copies and reproductions thereof shall be furnished to Gentiva upon request and in any case shall be returned to Gentiva upon termination of Employee’s employment with\nGentiva.\nEmployee agrees that Employee will promptly disclose to Gentiva all inventions or discoveries made, conceived, or for the first time reduced to practice in connection with or as a result of the work and/or services Employee performs for\nGentiva.\nEmployee agrees that Employee will assign the entire right, title, and interest in any such invention or inventions and any patents that may be granted thereon in any country in the world concerning such inventions to Gentiva. Employee\nfurther agrees that Employee will, without expense to Gentiva, execute all documents and do all acts which may be necessary, desirable, or convenient to enable Gentiva, at its expense, to file and prosecute applications for patents on such\ninventions, and to maintain patents granted thereon.\n8.\nNon-Disparagement\nEmployee agrees that during Employee’s employment with Gentiva and for a period of three (3) years following the termination of Employee’s employment with Gentiva, Employee will not take any action or make any statement which\ndisparages Gentiva or its practices or which disrupts or impairs Gentiva’s normal operations. Nothing in this provision shall limit any common law or statutory rights of Gentiva or obligations of Employee.\n9.\nEquitable Relief\nEmployee acknowledges that Employee possesses unique skills, knowledge and ability, and agrees that any breach of the provisions of this Agreement would cause Gentiva irreparable injury which would not reasonably or adequately be\ncompensated by damages in an action at law. Therefore, Employee agrees that Gentiva shall be entitled, in addition to any other remedies it may have under this Agreement, at law or otherwise, to immediate injunctive and other equitable\nrelief to prevent or curtail any breach of this Agreement by Employee. Nothing in this Agreement shall prohibit Gentiva from seeking or recovering any legal or monetary damages to which it may be entitled if Employee breaches this\nAgreement.\n10.\nSeverability and Modification\nEmployee and Gentiva expressly agree that the covenants and agreements contained in this Agreement are independent, separate, severable, and divisible, and in the event any portion or portions of such paragraphs are declared invalid or\nunenforceable, the validity of the remaining paragraphs of this Agreement will not be affected. If any provision contained herein shall for any reason be held excessively broad or unreasonable as to time, territory, activity, services or\ninterest to be protected or otherwise unenforceable, the court is hereby empowered and requested to modify such provision by narrowing it, so as to make it reasonable and enforceable to the extent provided under applicable law.\nPage5of7\n11.\nWaiver\nThe waiver by Gentiva of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver of any subsequent breach by Employee or of any of Gentiva’s rights under this Agreement.\n12.\nEntire Agreement\nThis Agreement contains the entire agreement between Employee and Gentiva with respect to the subject matters contained in the Agreement. It may not be changed orally, but only by an agreement in writing signed by the President of\nGentiva and Employee. This Agreement supersedes any prior or contemporaneous discussions, negotiations, understandings, arrangements, or agreements between Gentiva and Employee with respect to the subject matters contained in\nthis Agreement.\n13.\nFuture Employers\nEmployee agrees that Gentiva may notify anyone employing Employee or evidencing an intention to employ Employee as to the existence and provisions of this Agreement and may provide any such person or organization a copy of this\nAgreement. Employee agrees that for a period of two (2) years after termination of Employee’s employment with Gentiva for any reason, Employee will provide Gentiva with the identity of any employer Employee goes to work for along\nwith Employee’s job title and anticipated job duties with any such employer. Employee further agrees to provide a copy of this Agreement to anyone who employs Employee within two (2) years of the termination of Employee’s\nemployment with Gentiva.\n14.\nAttorneys’ Fees and Costs\nIn the event Employee breaches this Agreement, Employee shall be liable to Gentiva for all costs of enforcement, including attorneys’ fees and court costs, in addition to all other damages and redress available to Gentiva in equity or in\nlaw.\n15.\nBinding Effect\nThe covenants, terms, and provisions set forth in this Agreement shall inure to the benefit of and be enforceable by Gentiva and its successors, assigns, and successors-in-interest, including, without limitation, any corporation, partnership,\nor other entity with which Gentiva may be merged or by which it may be acquired. Employee may not assign Employee’s rights and obligations under this Agreement to any other party.\n16.\nEmployment At-Will Relationship\nEmployee and Gentiva agree that nothing in this Agreement alters the at-will nature of Employee’s employment relationship with Gentiva and that either Employee or Gentiva may terminate the employment relationship at any time for\nany reason. Employee further agrees that nothing in this Agreement limits Gentiva’s right to alter or modify Employee’s job title or job duties and responsibilities any time at Gentiva’s discretion.\nPage6of7\n17.\nChoice of Law And Exclusive Jurisdiction and Venue\nEmployee and Gentiva agree that this Agreement shall be governed by and construed under the laws of the State of Georgia. Employee and Gentiva further agree that it is their intent that the provisions in this Agreement which are covered\nby O.C .G .A . §§ 13-8-50 through 13-8 -59 (“Georgia Statute”) shall be governed by the Georgia Statute and that this Agreement should be interpreted to maximize the scope of the enforceability of its terms consistent with the Georgia\nStatute. Employee and Gentiva also agree that the exclusive venue for any dispute arising under this Agreement shall be either the Superior Court of Cobb County, Georgia or the United States District Court for the Northern District of\nGeorgia, Atlanta Division. Employee and Gentiva consent to the jurisdiction and venue of these courts and waive any challenge to the jurisdiction and venue of these courts.\nIN WITNESS WHEREOF, Gentiva and Employee have executed this Agreement as of the day and year set forth below.\nEMPLOYEE:\nGENTIVA HEALTH SERVICES, INC .\nBy:\nBy:\nSignature\nSignature\nPrint Name\nPrint Name\nDate:\nTitle\nDate:\nPage7of7
+40195c43454bb219922c8132af9c909c.pdf	effective_date jurisdiction party term	EX-10.1 2 d507099dex101.htm EXHIBIT 10.1 - NON-COMPETE AND CONFIDENTIALITY AGREEMENT WITH\nJACK D. CRUSA\nExhibit 10.1\nNON-COMPETE AND CONFIDENTIALITY AGREEMENT\nThis Non-Compete and Confidentiality Agreement (this “Agreement”) is effective as of the 1st day of January, 2018 between Leggett &\nPlatt, Incorporated (“Company”), a Missouri corporation, and Jack Crusa (“Executive”).\nRECITALS\nA. Executive, through his global work in Company’s Specialized and Industrial Products Segments as well as his participation in company-wide\nstrategy and management sessions, is intimately familiar with many of Company’s products, customers and suppliers, has obtained confidential\nand trade secret business information of Company and its subsidiaries and has developed valuable expertise, goodwill, and business contacts and\nrelationships through his long tenure at the Company.\nB. Company wishes to restrict Executive’s ability to use such confidential information, trade secrets, expertise, business contacts and business\nrelationships in competition with Company’s business pursuits.\nC. Company and Executive have agreed to enter into this Agreement in recognition of the above.\nNOW THEREFORE, in consideration of the above and for good and valuable consideration, herein set forth, the parties intending to be\nlegally bound agree as follows:\nAGREEMENT\n1. Non-Competition. From January 1, 2018 and continuing for a period of three (3) years thereafter, Executive agrees as follows:\n1.1 . Executive will not (either individually or through any entity in which he may be an employee, agent, consultant, advisor, director,\nshareholder, partner or otherwise affiliated) directly or indirectly in any part of the Territory\na.\nengage in any Competitive Activities;\nb. design, develop, manufacture, assemble, process, distribute, market or sell any Covered Products, or advise, represent or\nconsult with any party not affiliated with Company in performing any of the foregoing;\nc.\nsolicit orders from or seek to do business with any customer or competitor of the Company or its affiliates relating to Covered\nProducts or Competitive Activities; or\nd.\ninfluence or attempt to influence any employee, representative, advisor, customer, or supplier of Company to terminate their\nemployment or relationship with the Company or its affiliates, or to alter their relationship in a way that would be detrimental\nto the Company or its affiliates.\n1.2 . Company’s subsidiaries and affiliates (i) are third party beneficiaries of this Section, (ii) shall have all rights and remedies allowed in\nlaw or equity (including injunctive relief) to prevent further violations, and (iii) may also seek damages resulting from any violation.\nExecutive has reviewed this Section and agrees the covenants are reasonable and necessary to protect Company and its affiliates.\n1\n1.3 . “Competitive Activities” means any manufacture, sale, distribution, engineering, development, design, management, promotion,\norganization, direction, capitalization, fundraising or other activities to compete, or form, promote, advance or develop any business which\ncompetes, with the business of the Company or any of the Company’s subsidiaries or affiliates.\n1.4 . “Covered Product” means any products produced or sold by the Company, or any of the Company’s affiliates, joint ventures or\nsubsidiaries (and any products that are competitive with or substitutes for such products), during Executive’s service as an employee to the\nCompany.\n1.5 . “Territory” means all of North America, Asia, Europe, and all other parts of the world in which Executive performed his duties for\nCompany (including without limitation the location of the businesses he managed directly or indirectly) at any time within the last five\nyears or where Company has sold any Covered Products.\n2. Confidentiality. Executive shall consider all information furnished by, or concerning, Company to be confidential and shall not disclose any\nsuch information to any other person, unless Executive obtains written permission from Company to do so. This paragraph shall apply, but is not\nlimited to, drawings, specifications, or other documents prepared by Executive for Company in connection with the Executive’s employment.\n“Confidential Information” shall include, without limitation, information not generally known or disclosed to the public relating to Company’s\npresent, past or future products, manufacturing procedures, processes, methods, equipment, compositions, raw materials, technology, inventions,\nformulas, trade secrets, finances, information systems, accounting, engineering, marketing, merchandising, personnel, research and development\nprograms, purchasing, sales methods, business records, suppliers, contracts, costs of production and overhead, customer lists, customer names\nand requirements, pricing and pricing strategies and any other confidential, technical, business or market information or data, and including\nanalyses, compilations, forecasts, studies, or other documents prepared by Company or its consultants and any and all documents prepared by\nExecutive which contain, utilize and/or are based upon any such Confidential Information.\n3. Violation of Terms. In the event that Company becomes aware of information giving rise to a good faith belief that Executive may have\nviolated or may be violating the terms of Sections 1 or 2, or both, Company shall be entitled to reasonably investigate whether such a violation\nhas occurred or is occurring, and Executive agrees to cooperate in any such investigation by providing complete and truthful information,\nincluding documents and testimony, to Company upon its request and without charge. Company shall not be required to institute legal\nproceedings in order to conduct an investigation pursuant to this section, but Company shall not be precluded from doing so. During the\npendency of the good faith investigation, Company shall have no obligation to make any payment otherwise due under Section 4. If such good\nfaith investigation concludes without a finding of breach, Company shall promptly pay Executive any missed payment.\nIn the event of a breach of Sections 1 or 2, or both, by Executive, Company shall have no further obligation to make the payments set forth in\nSection 4 below, and shall be entitled to immediately withhold such payments as have not been made and, at its election, seek specific\nperformance of Executive’s obligations hereunder, seek recovery of any payments that have already been made to Executive hereunder plus\ncompensatory and other damages, or seek any combination of equitable relief and damages that is permissible under applicable law. Executive\nfurther agrees that any breach or threatened breach of Sections 1 or 2, or both, will cause irreparable injury to Company, and that money damages\nalone will not provide an adequate remedy to Company. In addition, Company shall be entitled to recover reasonable attorney fees and other\ncosts in the event it prevails in any legal action or other proceedings to enforce any section of this Agreement.\n2\n4. Payment. In consideration for Executive’s covenants set forth herein, Company shall pay Executive a total sum of $450,000, less lawful\nwithholdings and other required taxes, to be paid in three (3) annual installments of $150,000 each, on January 15, 2018, January 15, 2019 and\nJanuary 15, 2020, contingent on Executive’s compliance with Sections 1 and 2. Executive understands and agrees that Company (or any of its\nrepresentatives) has made no express or implied representations concerning the tax implications of any noncompete payment made to Executive\npursuant to this Agreement.\n5. Term and Termination. This Agreement is effective as of the date first set forth above, and will remain in force until the expiration noted in\nSection 1.\n6. Governing Law. This Agreement shall be governed by the laws of the State of Missouri. Any claim, action or proceeding seeking to interpret\nor enforce any provision of, or based on any right arising out of, this Agreement shall only be brought in a state or federal court having situs\nwithin a court of Jasper County, Missouri or the federal district court for the Western District of Missouri and each of the parties consents and\nsubmits to the exclusive jurisdiction of such courts (and to the appropriate appellate courts) in any such claim, action or proceeding, and further\nwaives any objection it may have now or hereafter to such venue, including any objection based on the grounds of forum non conveniens.\n7. Severability and Modification. Should any provision of this Agreement be declared or be determined by any Court of competent jurisdiction to\nbe illegal, invalid, void, or unenforceable, the legality, validity and enforceability of the remaining parts, terms, or provisions shall not be affected\nthereby, and any said illegal, unenforceable or invalid part, term or provision shall be deemed not to be a part of this Agreement. While the\nparties agree that the restrictions imposed in this Agreement are reasonable and necessary to protect the legitimate interest of Company, if any\nprovision of this Agreement should later be determined to be invalid or unenforceable to any extent, the parties agree that the remainder of this\nAgreement shall not in any way be affected and shall be enforced to the greatest extent provided by law. The parties further agree that a court\nmay reasonably modify this Agreement by narrowing any provisions found to be unenforceable to the extent necessary to make them\nenforceable, and making a corresponding equitable reduction to the compensation otherwise due under Section 4 to reflect the lesser value of the\nrestriction as narrowed.\n8. Related Agreements. Company and Executive acknowledge and agree that there are other agreements between them that provide for similar\nobligations to those set forth herein. This Agreement, and the obligations of the parties hereunder, shall be in addition to any obligations provided\nunder other agreements existing or that may in the future be executed between Company and Executive. Nothing in this Agreement shall, or shall\nbe deemed to, supersede, replace or modify any of the provisions of such other agreements, and nothing in any other agreements between\nCompany and Executive, whether previously or subsequently executed, shall amend, modify, supplement or alter this Agreement unless and to\nthe extent such other agreement is made in writing and expressly provides that it amends, modifies, supplements or alters this Agreement.\nLEGGETT & PLATT, INCORPORATED\n/s/ Jack D. Crusa\nBy: /s/ Scott S. Douglas\nJack Crusa\nTitle: Senior Vice President\nDate: 12-4 -17\nDate: 12-4 -17\n3	EX-10.1 2 d507099dex101.htm EXHIBIT 10.1 - NON-COMPETE AND CONFIDENTIALITY AGREEMENT WITH\nJACK D. CRUSA\nExhibit 10.1\nNON-COMPETE AND CONFIDENTIALITY AGREEMENT\nThis Non-Compete and Confidentiality Agreement (this “Agreement”) is effective as of the 1st day of January, 2018 between Leggett &\nPlatt, Incorporated (“Company”), a Missouri corporation, and Jack Crusa (“Executive”).\nRECITALS\nA. Executive, through his global work in Company’s Specialized and Industrial Products Segments as well as his participation in company-wide\nstrategy and management sessions, is intimately familiar with many of Company’s products, customers and suppliers, has obtained confidential\nand trade secret business information of Company and its subsidiaries and has developed valuable expertise, goodwill, and business contacts and\nrelationships through his long tenure at the Company.\nB. Company wishes to restrict Executive’s ability to use such confidential information, trade secrets, expertise, business contacts and business\nrelationships in competition with Company’s business pursuits.\nC. Company and Executive have agreed to enter into this Agreement in recognition of the above.\nNOW THEREFORE, in consideration of the above and for good and valuable consideration, herein set forth, the parties intending to be\nlegally bound agree as follows:\nAGREEMENT\n1. Non-Competition. From January 1, 2018 and continuing for a period of three (3) years thereafter, Executive agrees as follows:\n \n1.1. Executive will not (either individually or through any entity in which he may be an employee, agent, consultant, advisor, director,\nshareholder, partner or otherwise affiliated) directly or indirectly in any part of the Territory\na. engage in any Competitive Activities;\nb. design, develop, manufacture, assemble, process, distribute, market or sell any Covered Products, or advise, represent or\nconsult with any party not affiliated with Company in performing any of the foregoing;\nC. solicit orders from or seek to do business with any customer or competitor of the Company or its affiliates relating to Covered\nProducts or Competitive Activities; or\nd. influence or attempt to influence any employee, representative, advisor, customer, or supplier of Company to terminate their\nemployment or relationship with the Company or its affiliates, or to alter their relationship in a way that would be detrimental\nto the Company or its affiliates.\n1.2. Company’s subsidiaries and affiliates (i) are third party beneficiaries of this Section, (ii) shall have all rights and remedies allowed in\nlaw or equity (including injunctive relief) to prevent further violations, and (iii) may also seek damages resulting from any violation.\nExecutive has reviewed this Section and agrees the covenants are reasonable and necessary to protect Company and its affiliates.\n1\n1.3. “Competitive Activities” means any manufacture, sale, distribution, engineering, development, design, management, promotion,\norganization, direction, capitalization, fundraising or other activities to compete, or form, promote, advance or develop any business which\ncompetes, with the business of the Company or any of the Company’s subsidiaries or affiliates.\n1.4. “Covered Product” means any products produced or sold by the Company, or any of the Company’s affiliates, joint ventures or\nsubsidiaries (and any products that are competitive with or substitutes for such products), during Executive’s service as an employee to the\nCompany.\n1.5. “Territory” means all of North America, Asia, Europe, and all other parts of the world in which Executive performed his duties for\nCompany (including without limitation the location of the businesses he managed directly or indirectly) at any time within the last five\nyears or where Company has sold any Covered Products.\n2. Confidentiality. Executive shall consider all information furnished by, or concerning, Company to be confidential and shall not disclose any\nsuch information to any other person, unless Executive obtains written permission from Company to do so. This paragraph shall apply, but is not\nlimited to, drawings, specifications, or other documents prepared by Executive for Company in connection with the Executive’s employment.\n“Confidential Information” shall include, without limitation, information not generally known or disclosed to the public relating to Company’s\npresent, past or future products, manufacturing procedures, processes, methods, equipment, compositions, raw materials, technology, inventions,\nformulas, trade secrets, finances, information systems, accounting, engineering, marketing, merchandising, personnel, research and development\nprograms, purchasing, sales methods, business records, suppliers, contracts, costs of production and overhead, customer lists, customer names\nand requirements, pricing and pricing strategies and any other confidential, technical, business or market information or data, and including\nanalyses, compilations, forecasts, studies, or other documents prepared by Company or its consultants and any and all documents prepared by\nExecutive which contain, utilize and/or are based upon any such Confidential Information.\n3. Violation of Terms. In the event that Company becomes aware of information giving rise to a good faith belief that Executive may have\nviolated or may be violating the terms of Sections 1 or 2, or both, Company shall be entitled to reasonably investigate whether such a violation\nhas occurred or is occurring, and Executive agrees to cooperate in any such investigation by providing complete and truthful information,\nincluding documents and testimony, to Company upon its request and without charge. Company shall not be required to institute legal\nproceedings in order to conduct an investigation pursuant to this section, but Company shall not be precluded from doing so. During the\npendency of the good faith investigation, Company shall have no obligation to make any payment otherwise due under Section 4. If such good\nfaith investigation concludes without a finding of breach, Company shall promptly pay Executive any missed payment.\n \nIn the event of a breach of Sections 1 or 2, or both, by Executive, Company shall have no further obligation to make the payments set forth in\nSection 4 below, and shall be entitled to immediately withhold such payments as have not been made and, at its election, seek specific\nperformance of Executive’s obligations hereunder, seek recovery of any payments that have already been made to Executive hereunder plus\ncompensatory and other damages, or seek any combination of equitable relief and damages that is permissible under applicable law. Executive\nfurther agrees that any breach or threatened breach of Sections 1 or 2, or both, will cause irreparable injury to Company, and that money damages\nalone will not provide an adequate remedy to Company. In addition, Company shall be entitled to recover reasonable attorney fees and other\ncosts in the event it prevails in any legal action or other proceedings to enforce any section of this Agreement.\n2\n4. Payment. In consideration for Executive’s covenants set forth herein, Company shall pay Executive a total sum of $450,000, less lawful\nwithholdings and other required taxes, to be paid in three (3) annual installments of $150,000 each, on January 15, 2018, January 15, 2019 and\nJanuary 15, 2020, contingent on Executive’s compliance with Sections 1 and 2. Executive understands and agrees that Company (or any of its\nrepresentatives) has made no express or implied representations concerning the tax implications of any noncompete payment made to Executive\npursuant to this Agreement.\n5. Term and Termination. This Agreement is effective as of the date first set forth above, and will remain in force until the expiration noted in\nSection 1.\n6. Governing Law. This Agreement shall be governed by the laws of the State of Missouri. Any claim, action or proceeding seeking to interpret\nor enforce any provision of, or based on any right arising out of, this Agreement shall only be brought in a state or federal court having situs\nwithin a court of Jasper County, Missouri or the federal district court for the Western District of Missouri and each of the parties consents and\nsubmits to the exclusive jurisdiction of such courts (and to the appropriate appellate courts) in any such claim, action or proceeding, and further\nwaives any objection it may have now or hereafter to such venue, including any objection based on the grounds of forum non conveniens.\n \n7. Severability and Modification. Should any provision of this Agreement be declared or be determined by any Court of competent jurisdiction to\nbe illegal, invalid, void, or unenforceable, the legality, validity and enforceability of the remaining parts, terms, or provisions shall not be affected\nthereby, and any said illegal, unenforceable or invalid part, term or provision shall be deemed not to be a part of this Agreement. While the\nparties agree that the restrictions imposed in this Agreement are reasonable and necessary to protect the legitimate interest of Company, if any\nprovision of this Agreement should later be determined to be invalid or unenforceable to any extent, the parties agree that the remainder of this\nAgreement shall not in any way be affected and shall be enforced to the greatest extent provided by law. The parties further agree that a court\nmay reasonably modify this Agreement by narrowing any provisions found to be unenforceable to the extent necessary to make them\nenforceable, and making a corresponding equitable reduction to the compensation otherwise due under Section 4 to reflect the lesser value of the\nrestriction as narrowed.\n \n8. Related Agreements. Company and Executive acknowledge and agree that there are other agreements between them that provide for similar\nobligations to those set forth herein. This Agreement, and the obligations of the parties hereunder, shall be in addition to any obligations provided\nunder other agreements existing or that may in the future be executed between Company and Executive. Nothing in this Agreement shall, or shall\nbe deemed to, supersede, replace or modify any of the provisions of such other agreements, and nothing in any other agreements between\nCompany and Executive, whether previously or subsequently executed, shall amend, modify, supplement or alter this Agreement unless and to\nthe extent such other agreement is made in writing and expressly provides that it amends, modifies, supplements or alters this Agreement.\nLEGGETT & PLATT, INCORPORATED\n/s/ Jack D. Crusa By:  /s/ Scott S. Douglas\nJack Crusa\nTitle: Senior Vice President\nDate: 12-4-17 Date: 12-4-17	EX-10.1 2 d507099dex101.htm EXHIBIT 10.1 - NON-COMPETE AND CONFIDENTIALITY AGREEMENT WITH\nJACK D. CRUSA\nExhibit 10.1\nNON-COMPETE AND CONFIDENTIALITY AGREEMENT\nThis Non-Compete and Confidentiality Agreement (this "Agreement") is effective as of the 1st day of January, 2018 between Leggett &\nPlatt, Incorporated ("Company"), a Missouri corporation, and Jack Crusa ("Executive").\nRECITALS\nA. Executive, through his global work in Company's Specialized and Industrial Products Segments as well as his participation in company-wide\nstrategy and management sessions, is intimately familiar with many of Company's products, customers and suppliers, has obtained confidential\nand trade secret business information of Company and its subsidiaries and has developed valuable expertise, goodwill, and business contacts and\nrelationships through his long tenure at the Company.\nB. Company wishes to restrict Executive's ability to use such confidential information, trade secrets, expertise, business contacts and business\nrelationships in competition with Company's business pursuits.\nC. Company and Executive have agreed to enter into this Agreement in recognition of the above.\nNOW THEREFORE, in consideration of the above and for good and valuable consideration, herein set forth, the parties intending to be\nlegally bound agree as follows:\nAGREEMENT\n1. Non-Competition. From January 1, 2018 and continuing for a period of three (3) years thereafter, Executive agrees as follows:\n1.1. Executive will not (either individually or through any entity in which he may be an employee, agent, consultant, advisor, director,\nshareholder, partner or otherwise affiliated) directly or indirectly in any part of the Territory\na.\nengage in any Competitive Activities;\nb.\ndesign, develop, manufacture, assemble, process, distribute, market or sell any Covered Products, or advise, represent or\nconsult with any party not affiliated with Company in performing any of the foregoing;\nC.\nsolicit orders from or seek to do business with any customer or competitor of the Company or its affiliates relating to Covered\nProducts or Competitive Activities; or\nd.\ninfluence or attempt to influence any employee, representative, advisor, customer, or supplier of Company to terminate their\nemployment or relationship with the Company or its affiliates, or to alter their relationship in a way that would be detrimental\nto the Company or its affiliates.\n1.2. Company's subsidiaries and affiliates (i) are third party beneficiaries of this Section, (ii) shall have all rights and remedies allowed in\nlaw or equity (including injunctive relief) to prevent further violations, and (iii) may also seek damages resulting from any violation.\nExecutive has reviewed this Section and agrees the covenants are reasonable and necessary to protect Company and its affiliates.\n1\n1.3. "Competitive Activities" means any manufacture, sale, distribution, engineering, development, design, management, promotion,\norganization, direction, capitalization, fundraising or other activities to compete, or form, promote, advance or develop any business which\ncompetes, with the business of the Company or any of the Company's subsidiaries or affiliates.\n1.4. "Covered Product" means any products produced or sold by the Company, or any of the Company's affiliates, joint ventures or\nsubsidiaries (and any products that are competitive with or substitutes for such products), during Executive's service as an employee to the\nCompany.\n1.5. "Territory" means all of North America, Asia, Europe, and all other parts of the world in which Executive performed his duties for\nCompany (including without limitation the location of the businesses he managed directly or indirectly) at any time within the last five\nyears or where Company has sold any Covered Products.\n2. Confidentiality.. Executive shall consider all information furnished by, or concerning, Company to be confidential and shall not disclose any\nsuch information to any other person, unless Executive obtains written permission from Company to do so. This paragraph shall apply, but is not\nlimited to, drawings, specifications, or other documents prepared by Executive for Company in connection with the Executive's employment.\n"Confidential Information" shall include, without limitation, information not generally known or disclosed to the public relating to Company's\npresent, past or future products, manufacturing procedures, processes, methods, equipment, compositions, raw materials, technology, inventions,\nformulas, trade secrets, finances, information systems, accounting, engineering, marketing, merchandising, personnel, research and development\nprograms, purchasing, sales methods, business records, suppliers, contracts, costs of production and overhead, customer lists, customer names\nand requirements, pricing and pricing strategies and any other confidential, technical, business or market information or data, and including\nanalyses, compilations, forecasts, studies, or other documents prepared by Company or its consultants and any and all documents prepared by\nExecutive which contain, utilize and/or are based upon any such Confidential Information.\n3. Violation of. Terms. In the event that Company becomes aware of information giving rise to a good faith belief that Executive may have\nviolated or may be violating the terms of Sections 1 or 2, or both, Company shall be entitled to reasonably investigate whether such a violation\nhas occurred or is occurring, and Executive agrees to cooperate in any such investigation by providing complete and truthful information,\nincluding documents and testimony, to Company upon its request and without charge. Company shall not be required to institute legal\nproceedings in order to conduct an investigation pursuant to this section, but Company shall not be precluded from doing so. During the\npendency of the good faith investigation, Company shall have no obligation to make any payment otherwise due under Section 4. If such good\nfaith investigation concludes without a finding of breach, Company shall promptly pay Executive any missed payment.\nIn the event of a breach of Sections 1 or 2, or both, by Executive, Company shall have no further obligation to make the payments set forth in\nSection 4 below, and shall be entitled to immediately withhold such payments as have not been made and, at its election, seek specific\nperformance of Executive's obligations hereunder, seek recovery of any payments that have already been made to Executive hereunder plus\ncompensatory and other damages, or seek any combination of equitable relief and damages that is permissible under applicable law. Executive\nfurther agrees that any breach or threatened breach of Sections 1 or 2, or both, will cause irreparable injury to Company, and that money damages\nalone will not provide an adequate remedy to Company. In addition, Company shall be entitled to recover reasonable attorney fees and other\ncosts in the event it prevails in any legal action or other proceedings to enforce any section of this Agreement.\n2\n4. Payment. In consideration for Executive's covenants set forth herein, Company shall pay Executive a total sum of $450,000, less lawful\nwithholdings and other required taxes, to be paid in three (3) annual installments of $150,000 each, on January 15, 2018, January 15, 2019 and\nJanuary 15, 2020, contingent on Executive's compliance with Sections 1 and 2. Executive understands and agrees that Company (or any of its\nrepresentatives) has made no express or implied representations concerning the tax implications of any noncompete payment made to Executive\npursuant to this Agreement.\n5. Term and Termination. This Agreement is effective as of the date first set forth above, and will remain in force until the expiration noted in\nSection 1.\n6. Governing. Law. This Agreement shall be governed by the laws of the State of Missouri. Any claim, action or proceeding seeking to interpret\nor enforce any provision of, or based on any right arising out of, this Agreement shall only be brought in a state or federal court having situs\nwithin a court of Jasper County, Missouri or the federal district court for the Western District of Missouri and each of the parties consents and\nsubmits to the exclusive jurisdiction of such courts (and to the appropriate appellate courts) in any such claim, action or proceeding, and further\nwaives any objection it may have now or hereafter to such venue, including any objection based on the grounds of forum non conveniens.\n7. Severability and Modification. Should any provision of this Agreement be declared or be determined by any Court of competent jurisdiction to\nbe\nillegal, invalid, void, or unenforceable, the legality, validity and enforceability of the remaining parts, terms, or provisions shall not be affected\nthereby, and any said illegal, unenforceable or invalid part, term or provision shall be deemed not to be a part of this Agreement. While the\nparties agree that the restrictions imposed in this Agreement are reasonable and necessary to protect the legitimate interest of Company, if any\nprovision\nof this Agreement should later be determined to be invalid or unenforceable to any extent, the parties agree that the remainder of\nthis\nAgreement shall not in any way be affected and shall be enforced to the greatest extent provided by law. The parties further agree that a court\nmay reasonably modify this Agreement by narrowing any provisions found to be unenforceable to the extent necessary to make them\nenforceable, and making a corresponding equitable reduction to the compensation otherwise due under Section 4 to reflect the lesser value of\nthe\nrestriction as narrowed.\n8.\nRelated Agreements. Company and Executive acknowledge and agree that there are other agreements between them that provide for similar\nobligations to those set forth herein. This Agreement, and the obligations of the parties hereunder, shall be in addition to any obligations provided\nunder other agreements existing or that may in the future be executed between Company and Executive. Nothing in this Agreement shall, or shall\nbe deemed to, supersede, replace or modify any of the provisions of such other agreements, and nothing in any other agreements between\nCompany and Executive, whether previously or subsequently executed, shall amend, modify, supplement or alter this Agreement unless and to\nthe extent such other agreement is made in writing and expressly provides that it amends, modifies, supplements or alters this Agreement.\nLEGGETT & PLATT, INCORPORATED\n/s/ Jack D. Crusa\nBy: /s/ Scott S. Douglas\nJack Crusa\nTitle: Senior Vice President\nDate: 12-4-17\nDate: 12-4-17\n3	EX-10.1 2 d507099dex101.htm EXHIBIT 10.1 - NON-COMPETE AND CONFIDENTIALITY AGREEMENT WITH\nJACK D. CRUSA\nExhibit 10.1\nNON-COMPETE AND CONFIDENTIALITY AGREEMENT\nThis Non-Compete and Confidentiality Agreement (this “Agreement”) is effective as of the 1st day of January, 2018 between Leggett &\nPlatt, Incorporated (“Company”), a Missouri corporation, and Jack Crusa (“Executive”).\nRECITALS\nA. Executive, through his global work in Company’s Specialized and Industrial Products Segments as well as his participation in company-wide\nstrategy and management sessions, is intimately familiar with many of Company’s products, customers and suppliers, has obtained confidential\nand trade secret business information of Company and its subsidiaries and has developed valuable expertise, goodwill, and business contacts and\nrelationships through his long tenure at the Company.\nB. Company wishes to restrict Executive’s ability to use such confidential information, trade secrets, expertise, business contacts and business\nrelationships in competition with Company’s business pursuits.\nC. Company and Executive have agreed to enter into this Agreement in recognition of the above.\nNOW THEREFORE, in consideration of the above and for good and valuable consideration, herein set forth, the parties intending to be\nlegally bound agree as follows:\nAGREEMENT\n1. Non-Competition. From January 1, 2018 and continuing for a period of three (3) years thereafter, Executive agrees as follows:\n1.1 . Executive will not (either individually or through any entity in which he may be an employee, agent, consultant, advisor, director,\nshareholder, partner or otherwise affiliated) directly or indirectly in any part of the Territory\na.\nengage in any Competitive Activities;\nb. design, develop, manufacture, assemble, process, distribute, market or sell any Covered Products, or advise, represent or\nconsult with any party not affiliated with Company in performing any of the foregoing;\nc.\nsolicit orders from or seek to do business with any customer or competitor of the Company or its affiliates relating to Covered\nProducts or Competitive Activities; or\nd.\ninfluence or attempt to influence any employee, representative, advisor, customer, or supplier of Company to terminate their\nemployment or relationship with the Company or its affiliates, or to alter their relationship in a way that would be detrimental\nto the Company or its affiliates.\n1.2 . Company’s subsidiaries and affiliates (i) are third party beneficiaries of this Section, (ii) shall have all rights and remedies allowed in\nlaw or equity (including injunctive relief) to prevent further violations, and (iii) may also seek damages resulting from any violation.\nExecutive has reviewed this Section and agrees the covenants are reasonable and necessary to protect Company and its affiliates.\n1\n1.3 . “Competitive Activities” means any manufacture, sale, distribution, engineering, development, design, management, promotion,\norganization, direction, capitalization, fundraising or other activities to compete, or form, promote, advance or develop any business which\ncompetes, with the business of the Company or any of the Company’s subsidiaries or affiliates.\n1.4 . “Covered Product” means any products produced or sold by the Company, or any of the Company’s affiliates, joint ventures or\nsubsidiaries (and any products that are competitive with or substitutes for such products), during Executive’s service as an employee to the\nCompany.\n1.5 . “Territory” means all of North America, Asia, Europe, and all other parts of the world in which Executive performed his duties for\nCompany (including without limitation the location of the businesses he managed directly or indirectly) at any time within the last five\nyears or where Company has sold any Covered Products.\n2. Confidentiality. Executive shall consider all information furnished by, or concerning, Company to be confidential and shall not disclose any\nsuch information to any other person, unless Executive obtains written permission from Company to do so. This paragraph shall apply, but is not\nlimited to, drawings, specifications, or other documents prepared by Executive for Company in connection with the Executive’s employment.\n“Confidential Information” shall include, without limitation, information not generally known or disclosed to the public relating to Company’s\npresent, past or future products, manufacturing procedures, processes, methods, equipment, compositions, raw materials, technology, inventions,\nformulas, trade secrets, finances, information systems, accounting, engineering, marketing, merchandising, personnel, research and development\nprograms, purchasing, sales methods, business records, suppliers, contracts, costs of production and overhead, customer lists, customer names\nand requirements, pricing and pricing strategies and any other confidential, technical, business or market information or data, and including\nanalyses, compilations, forecasts, studies, or other documents prepared by Company or its consultants and any and all documents prepared by\nExecutive which contain, utilize and/or are based upon any such Confidential Information.\n3. Violation of Terms. In the event that Company becomes aware of information giving rise to a good faith belief that Executive may have\nviolated or may be violating the terms of Sections 1 or 2, or both, Company shall be entitled to reasonably investigate whether such a violation\nhas occurred or is occurring, and Executive agrees to cooperate in any such investigation by providing complete and truthful information,\nincluding documents and testimony, to Company upon its request and without charge. Company shall not be required to institute legal\nproceedings in order to conduct an investigation pursuant to this section, but Company shall not be precluded from doing so. During the\npendency of the good faith investigation, Company shall have no obligation to make any payment otherwise due under Section 4. If such good\nfaith investigation concludes without a finding of breach, Company shall promptly pay Executive any missed payment.\nIn the event of a breach of Sections 1 or 2, or both, by Executive, Company shall have no further obligation to make the payments set forth in\nSection 4 below, and shall be entitled to immediately withhold such payments as have not been made and, at its election, seek specific\nperformance of Executive’s obligations hereunder, seek recovery of any payments that have already been made to Executive hereunder plus\ncompensatory and other damages, or seek any combination of equitable relief and damages that is permissible under applicable law. Executive\nfurther agrees that any breach or threatened breach of Sections 1 or 2, or both, will cause irreparable injury to Company, and that money damages\nalone will not provide an adequate remedy to Company. In addition, Company shall be entitled to recover reasonable attorney fees and other\ncosts in the event it prevails in any legal action or other proceedings to enforce any section of this Agreement.\n2\n4. Payment. In consideration for Executive’s covenants set forth herein, Company shall pay Executive a total sum of $450,000, less lawful\nwithholdings and other required taxes, to be paid in three (3) annual installments of $150,000 each, on January 15, 2018, January 15, 2019 and\nJanuary 15, 2020, contingent on Executive’s compliance with Sections 1 and 2. Executive understands and agrees that Company (or any of its\nrepresentatives) has made no express or implied representations concerning the tax implications of any noncompete payment made to Executive\npursuant to this Agreement.\n5. Term and Termination. This Agreement is effective as of the date first set forth above, and will remain in force until the expiration noted in\nSection 1.\n6. Governing Law. This Agreement shall be governed by the laws of the State of Missouri. Any claim, action or proceeding seeking to interpret\nor enforce any provision of, or based on any right arising out of, this Agreement shall only be brought in a state or federal court having situs\nwithin a court of Jasper County, Missouri or the federal district court for the Western District of Missouri and each of the parties consents and\nsubmits to the exclusive jurisdiction of such courts (and to the appropriate appellate courts) in any such claim, action or proceeding, and further\nwaives any objection it may have now or hereafter to such venue, including any objection based on the grounds of forum non conveniens.\n7. Severability and Modification. Should any provision of this Agreement be declared or be determined by any Court of competent jurisdiction to\nbe illegal, invalid, void, or unenforceable, the legality, validity and enforceability of the remaining parts, terms, or provisions shall not be affected\nthereby, and any said illegal, unenforceable or invalid part, term or provision shall be deemed not to be a part of this Agreement. While the\nparties agree that the restrictions imposed in this Agreement are reasonable and necessary to protect the legitimate interest of Company, if any\nprovision of this Agreement should later be determined to be invalid or unenforceable to any extent, the parties agree that the remainder of this\nAgreement shall not in any way be affected and shall be enforced to the greatest extent provided by law. The parties further agree that a court\nmay reasonably modify this Agreement by narrowing any provisions found to be unenforceable to the extent necessary to make them\nenforceable, and making a corresponding equitable reduction to the compensation otherwise due under Section 4 to reflect the lesser value of the\nrestriction as narrowed.\n8. Related Agreements. Company and Executive acknowledge and agree that there are other agreements between them that provide for similar\nobligations to those set forth herein. This Agreement, and the obligations of the parties hereunder, shall be in addition to any obligations provided\nunder other agreements existing or that may in the future be executed between Company and Executive. Nothing in this Agreement shall, or shall\nbe deemed to, supersede, replace or modify any of the provisions of such other agreements, and nothing in any other agreements between\nCompany and Executive, whether previously or subsequently executed, shall amend, modify, supplement or alter this Agreement unless and to\nthe extent such other agreement is made in writing and expressly provides that it amends, modifies, supplements or alters this Agreement.\nLEGGETT & PLATT, INCORPORATED\n/s/ Jack D. Crusa\nBy: /s/ Scott S. Douglas\nJack Crusa\nTitle: Senior Vice President\nDate: 12-4 -17\nDate: 12-4 -17\n3
+411633d4b0a9472564e5820a12ed14df.pdf	effective_date jurisdiction party term	EX-99.(D).(5) 17 dex99d5.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(5)\nMarch 17, 2010\nFLIR Systems, Inc.\n27700 SW Parkway Ave.\nWilsonville. OR 97070\nAttention: Mr. Craig Stoehr\nDirector - Corporate Development and Investor Relations\nConfidentiality Agreement\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction (a “Transaction”) involving ICx Technologies, Inc. or certain of its affiliates,\nsubsidiaries, assets and/or business divisions (collectively, the “Company”), you have requested information. In consideration of, and as a condition\nto, your being furnished with such information and any other Evaluation Material (as defined below), the Company hereby requests your agreement\nas set forth herein. As used in this letter agreement (this “Agreement”), the term “Evaluation Material” means all information regarding the\nCompany, its businesses, technology, products, prospects and plans, a Transaction or the fact that the Company may pursue a Transaction with you\nor other parties, the existence and terms of this Letter Agreement and other information furnished to you in connection with the Transaction by the\nCompany or any of its Representatives (as defined below), irrespective of form or medium of communication, whether prepared by the Company, its\nRepresentatives or otherwise and whether furnished before, on or after the date of this Agreement, together with any and all analyses, compilations,\nsummaries, forecasts, studies or other materials prepared by you or your Representatives that contain, are based on or otherwise incorporate, in\nwhole or part, such information. The term “Representatives” includes, without limitation, FLIR Systems, Inc.’s affiliates and its and their respective\ndirectors, officers, employees, advisors, agents, representatives, financial institutions providing or underwriting solely debt financing or “controlling\npersons” (within the meaning of the Securities Exchange Act of 1934, as amended (the “1934 Act”)); provided, that, should you provide Evaluation\nMaterial to any such financial institution seeking to arrange debt financing, you shall promptly provide written notice to the Company as to the\nidentity of any such financial institution. The Company is being advised by Stone Key Partners LLC and the Stone Key Securities division of\nHudson Partners Securities LLC (together, “Stone Key”).\nUse of Evaluation Materials\nYou and your Representatives (i) will use the Evaluation Material solely for the purpose of evaluating a possible Transaction with the Company\ninvolving you or your affiliates and (ii) will keep the Evaluation Material strictly confidential and (except as required by applicable law, regulation or\nlegal process, and only after compliance with the paragraph titled “Compelled Disclosure” below) will not, without the Company’s prior written\nconsent, disclose any information in the Evaluation Material to any person, except that the Evaluation Material (or portions thereof) may be\ndisclosed to those of your Representatives who need to know such information solely for the purpose of evaluating a possible Transaction with the\nCompany (it being understood that prior to such disclosure your Representatives will be informed of the confidential nature of the Evaluation\nMaterial, will be provided with a copy of this Agreement and will agree to be bound by the terms hereof). You will make all reasonable, necessary\nand appropriate efforts to safeguard Evaluation\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 2\nMaterial from disclosure to anyone other than as permitted hereby. You agree to be responsible for any breach of this Agreement by your\nRepresentatives (including, without limitation, any actions or inactions by your Representatives that would constitute a breach if such\nRepresentatives were original signatories hereto).\nThe term “Evaluation Material” does not include any information which (i) at the time of disclosure or thereafter is generally known by the public\n(other than as a result of its disclosure by you or your Representatives) or (ii) was or becomes available to you on a non-confidential basis from a\nperson not otherwise bound by a confidentiality agreement with the Company or its Representatives or prohibited from transmitting the information\nto you by law, contractual obligation, fiduciary duly or otherwise. As used in this Agreement, the term “person” shall be broadly interpreted to\ninclude, without limitation, any corporation, company, joint venture, partnership, association or individual. You agree that the Evaluation Material is\nand shall remain the property of the Company or its subsidiaries and affiliates, as applicable, and that neither the Company nor any of its\nRepresentatives, subsidiaries or affiliates has granted you any license, copyright, or similar right with respect to any of the Evaluation Material or\nany other information provided to you by or on behalf of the Company.\nNon-Disclosure\nUnless otherwise required by applicable law in the reasonable written opinion of your legal counsel, but only after compliance with the paragraph\ntitled “Compelled Disclosure” below, neither you nor your Representatives will, without the Company’s prior written consent, disclose to any person\neither the fact that discussions or negotiations have taken or may take place concerning a possible Transaction, or any of the terms, conditions or\nother facts with respect to any such possible Transaction, including, without limitation, the status thereof, the existence and terms of this Agreement\nand the fact that the Evaluation Material has been made available to you. Without limiting the foregoing, you hereby expressly confirm and agree\nthat no public disclosure with respect to any discussions or negotiations concerning a possible Transaction is now required by reason of securities\nlaws or similar requirements related to general disclosure and in the event you determine that such disclosure is required in the future, no such\ndisclosures shall be made unless and until you have consulted, to the extent permitted by applicable law or cognizant authority, with the Company\nregarding the necessity and form of any such disclosure and otherwise complied with this paragraph.\nWithout limitation of the foregoing, you further agree that, without the prior written consent of the Company, you will not, directly or indirectly,\nenter in any agreement, arrangement or understanding, or any discussions which might lead to an agreement, arrangement or understanding, with any\nperson regarding participation in a possible Transaction as a principal, coinvestor, an equity investor or any person other than a financial institution\nproviding or underwriting debt financing. For the avoidance of doubt, the term “Representatives” as applied to you shall not include any such\npotential principal, co-investor, equity investor or person other than a financial institution providing or underwriting debt financing.\nCompelled Disclosure\nIn the event that you are requested or required to disclose all or any part of the information contained in the Evaluation Material pursuant to the\nterms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a federal, state or local governmental or regulatory\nbody or\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 3\npursuant to a civil investigative demand or similar judicial process or otherwise, to the extent permitted by applicable law or cognizant authority, you\nwill (i) notify the Company in writing immediately of the existence, terms and circumstances surrounding such request or requirement, (ii) consult\nwith the Company on the advisability of taking legally available steps to resist or narrow such request or requirement, (iii) if disclosure of any such\ninformation is required, disclose only that portion of the information which, upon written advice of your legal counsel, you are legally required to\ndisclose and (iv) exercise your best efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded to such\ninformation. In any event, you will cooperate with the Company to obtain such a protective order or other assurance. Any expense you incur in\nconnection with the Company’s desire to narrow or limit the scope of the request or requirement shall be the responsibility of the Company.\nNon-Solicitation of Employees\nUntil the earlier of (i) the consummation by you of a Transaction, (ii) eighteen months after termination of discussions relating to a possible\nTransaction between you and the Company, and (iii) two years from the date of this Agreement, you will not, without the Company’s prior written\nconsent, directly or indirectly solicit for purposes of employment, offer to hire, entice away or offer to enter into any contract with, or hire any\nemployee of the Company: provided, however, that this paragraph shall not prohibit you or any of your Representatives from engagement in any\ngeneral advertising or general solicitation not targeted to the Company’s employees or hiring employees who respond to such a solicitation with no\nother action or by you or your Representatives in violation of this provision: and provided, further, that, following execution by you and the\nCompany of a definitive agreement providing for a Transaction between you and the Company, this paragraph shall not prohibit you or any of your\nRepresentatives from offering employees employment in anticipation of and conditioned upon the consummation of such Transaction.\nStandstill\nYou represent and warrant to the Company that, as of the date hereof, you do not beneficially own any securities of the Company or any securities or\ncontract rights (other than broadly based index funds) the terms or value of which are dependent on securities of the Company. For a period of two\nyears from the date of this Agreement, you will not, directly or indirectly, and you will cause any person or entity controlled by you not to, without\nthe prior written consent of the Board of Directors of the Company, (i) in any manner acquire, agree to acquire or make any proposal to acquire,\ndirectly or indirectly, any securities or property of the Company or any of its affiliates, or any securities or contract rights (other than broadly based\nindex funds) the terms or value of which are dependent on securities of the Company, (ii) propose to enter into, directly or indirectly, any merger,\nconsolidation, recapitalization, business combination, partnership, joint venture or other similar transaction involving the Company or any of its\naffiliates, (iii) make, or in any way participate in any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and\nExchange Commission) to vote, or seek to advise or influence any person with respect to the voting of any voting securities of the Company or any\nof its affiliates, (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the 1934 Act) with respect to any\nvoting securities of the Company or any of its affiliates, (v) negotiate, have any discussions or enter into any arrangements, understandings or\nagreements (whether written or oral) with, or advise, finance, assist or encourage, any other persons in connection with any of the foregoing, or,\nmake any investment in\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 4\nany other person that engages, or offers or proposes to engage, in any of the foregoing (it being understood that, without limiting the generality of the\nforegoing, you shall not be permitted to act as a joint bidder or co-bidder with any other person with respect to the Company), (vi) otherwise act,\nalone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vii) disclose any\nintention, plan or arrangement inconsistent with the foregoing or (viii) advise, assist or encourage any other persons in connection with any of the\nforegoing. Unless and until you have received the prior written invitation or approval of the Company to do so, you also agree during such period not\nto (x) request the Company (or Company Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this\nsentence), (y) take any action which might require the Company or any of its affiliates to make a public announcement regarding this Agreement or\nthe possibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, a Transaction or\n(z) communicate with the Company’s shareholders regarding the subject matter of this Agreement.\nProhibition on Trading\nIn addition, you hereby acknowledge that you are aware, and that you will advise your Representatives who receive any Evaluation Material, that the\nUnited States securities laws prohibit any person who has received from an issuer material, non public information from purchasing or selling\nsecurities of such issuer (and options, warrants and rights relating thereto) or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person (including, without limitation, any of your Representatives) is likely to purchase\nor sell such securities. You hereby agree that neither you nor your Representatives will use or communicate the Evaluation Material in violation of\nthese laws.\nReturn or Destruction of Documents\nIf you determine that you do not wish to proceed with a Transaction or your evaluation thereof, you will promptly advise the Company and Stone\nKey in writing of that decision. In that case, or in the event that (i) a Transaction is not consummated by you or (ii) at any time the Company so\nrequests, you will promptly (a) deliver to the Company all of the Evaluation Material, including all copies, reproductions, summaries, analyses or\nextracts thereof or based thereon in your possession or in the possession of any of your Representatives or (b) destroy all Evaluation Material in your\npossession or in the possession of any of your Representatives (such destruction to be certified by you in writing to the Company). Notwithstanding\nthe delivery or destruction of the Evaluation Material, you agree that you and your Representatives shall continue to be bound by your obligations\nunder this Agreement.\nNo Unauthorized Contact\nUnless otherwise agreed in writing by the Company, all (i) communications regarding any possible Transaction, (ii) requests for additional\ninformation or Evaluation Material, (iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding procedures,\nwill be submitted or directed to Stone Key. You further agree not to contact any officers, directors or employees of the Company in connection with a\npossible Transaction without the prior written consent of the Company.\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 5\nNo Obligation, Representation or Warranty\nThis Agreement does not constitute or create any obligation of the Company or its Representatives to provide any Evaluation Material or other\ninformation to you, but defines the duties and obligations of you and your Representatives with respect to the Evaluation Material to the extent it\nmay be disclosed or made available. Under no circumstances will the Company or any of its Representatives be obligated to disclose or make\navailable any information, including, without limitation, any Evaluation Material, which the Company in its sole and absolute discretion determines\nnot to disclose. You understand and acknowledge that none of the Company, Stone Key nor any of their respective Representatives is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information provided to\nyou by or on behalf of the Company. None of the Company. Stone Key nor any of their respective Representatives shall have any liability to you or\nany other person (including, without limitation, any of your Representatives) resulting from your use of the Evaluation Material, other than as may\nbe set forth in any definitive agreement providing for a Transaction and subject to the terms, conditions and limitations of any such agreement.\nYou agree that the Company will not be under any legal obligation of any kind whatsoever with respect to any Transaction by virtue of (x) this\nAgreement or (y) any written or oral expression or communication with respect to any Transaction by any of the Company’s Representatives except,\nin the case of this Agreement, for the matters specifically agreed to herein. You further acknowledge and agree that (i) the Company shall be free to\nconduct the process for a Transaction as the Company in its sole discretion shall determine (including, without limitation, negotiating with any other\nperson and entering into a definitive agreement without prior notice to you or any other person); (ii) any of the procedures relating to a Transaction\nmay be changed at any time without notice to you or any other person; (iii) the Company shall have the right to reject or accept any potential\nproposal, offer or participant therein, for any or no reason whatsoever, in its sole discretion; and (iv) neither you nor any of your Representatives\ncurrently have any claim whatsoever against the Company, Stone Key or any of their respective Representatives arising out of or relating to a\nTransaction based on this Agreement or otherwise.\nActing as Principal\nYou represent and warrant that you are acting as a principal in any possible Transaction and are not represented by any broker or similar party.\nLegal Remedy\nYou acknowledge that money damages and remedies at law will be inadequate to protect the Company against any actual or threatened breach of this\nAgreement by you or by your Representatives and, without prejudice to any rights and remedies otherwise available to the Company, you agree to\nthe granting of specific performance, injunctive relief and other equitable remedies in the Company’s favor without proof of actual damages, and you\nfurther agree to waive, and to cause your Representatives to waive, any requirement for the securing or posting of any bond in connection with any\nsuch remedy. In the event of any breach of this Agreement by you or your Representatives, you agree to reimburse the Company promptly upon\ndemand for all out-of-pocket costs and expenses incurred by it in the enforcement of its rights hereunder (including, without limitation, reasonable\nfees and disbursements of counsel).\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 6\nGoverning Law\nThe validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New\nYork, without giving effect to conflicts of laws principles. You irrevocably (i) submit to the jurisdiction of any court of the State of New York or the\nUnited States District Court for the Southern District of New York for the purpose of any suit, action, or other proceeding arising out of this\nAgreement, or any of the agreements or transactions contemplated hereby (each a “Proceeding”) and agree that service of any process, summons,\nnotice or document delivered by hand or sent by U.S. registered mail to your address set forth above shall be effective service of process for any\naction, suit or proceeding brought against you in any such court, (ii) agree that all claims in respect of any Proceeding may be heard and determined\nin any such court, (iii) irrevocably waive, to the fullest extent permitted by law, any immunity you have acquired, or hereafter may acquire, from\njurisdiction of any such court or from any legal process therein, (iv) irrevocably waive, to the fullest extent permitted by law, any right to trial by\njury in any Proceeding, and (v) agree not to commence any Proceeding other than in such court, and waive, to the fullest extent permitted by\napplicable law, any claim that any such Proceeding is brought in an inconvenient forum.\nNo Waiver\nNo failure or delay by the Company in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any\nsingle or partial exercise thereof preclude any other or further exercise of any right, power or privilege.\nSuccessors and Assigns\nThis Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. You may not assign this\nAgreement or any part thereof without the prior written consent of the Company, and any purported assignment without such consent shall be null\nand void.\nSeverability\nIf it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is invalid or\nunenforceable, (i) the remaining terms and provision hereof shall be unimpaired and shall remain in full force and effect to the fullest extent\npermitted by applicable law and (ii) the invalid or unenforceable term or provision shall be replaced by a term or provision that is valid and\nenforceable and that comes closest to expressing the Company’s intention with respect to such invalid or unenforceable term or provision.\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 7\nEntire Agreement\nThis Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements, arrangements\nand understandings relating to the matters provided for herein. This Agreement may not be amended or modified in any manner nor may any of its\nprovisions be waived except by written amendment executed by the parties. A waiver, amendment or modification shall only be effective if (a) it is\nin writing and signed by the Company and you, (b) it specifically refers to this Agreement and (c) it specifically states that the Company and/or you,\nas the case may be, is waiving or amending its rights hereunder. Any such amendment, modification or waiver shall be effective only in the specific\ninstance and for the purpose for which it was given. This Agreement shall, except as otherwise specifically set forth herein, cease to be effective two\nyears after the date hereof.\nCounterparts\nFor the convenience of the parties hereto, any number of counterparts of this Agreement may be executed by the parties hereto, each of which shall\nbe an original instrument and all of which taken together shall constitute one and the same Agreement. Delivery of a signed counterpart of this\nAgreement by e-mail or facsimile transmission shall constitute valid and sufficient delivery thereof.\nThis Agreement is being delivered to you in duplicate. Please execute and return one copy of this letter agreement which will constitute your\nagreement with respect to the subject matter of this Agreement.\nVery truly yours.\nICx Technologies, Inc.\nBy: /s/ James Luby\nName: James Luby\nTitle: Secretary\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 8\nConfirmed and Agreed to as of\nthe date first written above:\nFLIR Systems, Inc.\nBy: /s/ William W. Davis\nName: William W. Davis\nTitle: Senior Vice President, General Counsel &\nSecretary	EX-99.(D).(5) 17 dex99d5.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(5)\nMarch 17, 2010\nFLIR Systems, Inc.\n27700 SW Parkway Ave.\nWilsonville. OR 97070\nAttention: Mr. Craig Stoehr\nDirector - Corporate Development and Investor Relations\nConfidentiality Agreement\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction (a “Transaction”) involving ICx Technologies, Inc. or certain of its affiliates,\nsubsidiaries, assets and/or business divisions (collectively, the “Company”), you have requested information. In consideration of, and as a condition\nto, your being furnished with such information and any other Evaluation Material (as defined below), the Company hereby requests your agreement\nas set forth herein. As used in this letter agreement (this “Agreement”), the term “Evaluation Material” means all information regarding the\nCompany, its businesses, technology, products, prospects and plans, a Transaction or the fact that the Company may pursue a Transaction with you\nor other parties, the existence and terms of this Letter Agreement and other information furnished to you in connection with the Transaction by the\nCompany or any of its Representatives (as defined below), irrespective of form or medium of communication, whether prepared by the Company, its\nRepresentatives or otherwise and whether furnished before, on or after the date of this Agreement, together with any and all analyses, compilations,\nsummaries, forecasts, studies or other materials prepared by you or your Representatives that contain, are based on or otherwise incorporate, in\nwhole or part, such information. The term “Representatives” includes, without limitation, FLIR Systems, Inc.’s affiliates and its and their respective\ndirectors, officers, employees, advisors, agents, representatives, financial institutions providing or underwriting solely debt financing or “controlling\npersons” (within the meaning of the Securities Exchange Act of 1934, as amended (the “1934 Act”)); provided, that, should you provide Evaluation\nMaterial to any such financial institution seeking to arrange debt financing, you shall promptly provide written notice to the Company as to the\nidentity of any such financial institution. The Company is being advised by Stone Key Partners LL.C and the Stone Key Securities division of\nHudson Partners Securities LLC (together, “Stone Key”).\nUse of Evaluation Materials\nYou and your Representatives (i) will use the Evaluation Material solely for the purpose of evaluating a possible Transaction with the Company\ninvolving you or your affiliates and (ii) will keep the Evaluation Material strictly confidential and (except as required by applicable law, regulation or\nlegal process, and only after compliance with the paragraph titled “Compelled Disclosure” below) will not, without the Company’s prior written\nconsent, disclose any information in the Evaluation Material to any person, except that the Evaluation Material (or portions thereof) may be\ndisclosed to those of your Representatives who need to know such information solely for the purpose of evaluating a possible Transaction with the\nCompany (it being understood that prior to such disclosure your Representatives will be informed of the confidential nature of the Evaluation\nMaterial, will be provided with a copy of this Agreement and will agree to be bound by the terms hereof). You will make all reasonable, necessary\nand appropriate efforts to safeguard Evaluation\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 2\nMaterial from disclosure to anyone other than as permitted hereby. You agree to be responsible for any breach of this Agreement by your\nRepresentatives (including, without limitation, any actions or inactions by your Representatives that would constitute a breach if such\nRepresentatives were original signatories hereto).\nThe term “Evaluation Material” does not include any information which (i) at the time of disclosure or thereafter is generally known by the public\n(other than as a result of its disclosure by you or your Representatives) or (ii) was or becomes available to you on a non-confidential basis from a\nperson not otherwise bound by a confidentiality agreement with the Company or its Representatives or prohibited from transmitting the information\nto you by law, contractual obligation, fiduciary duly or otherwise. As used in this Agreement, the term “person” shall be broadly interpreted to\ninclude, without limitation, any corporation, company, joint venture, partnership, association or individual. You agree that the Evaluation Material is\nand shall remain the property of the Company or its subsidiaries and affiliates, as applicable, and that neither the Company nor any of its\nRepresentatives, subsidiaries or affiliates has granted you any license, copyright, or similar right with respect to any of the Evaluation Material or\nany other information provided to you by or on behalf of the Company.\nNon-Disclosure\nUnless otherwise required by applicable law in the reasonable written opinion of your legal counsel, but only after compliance with the paragraph\ntitled “Compelled Disclosure” below, neither you nor your Representatives will, without the Company’s prior written consent, disclose to any person\neither the fact that discussions or negotiations have taken or may take place concerning a possible Transaction, or any of the terms, conditions or\nother facts with respect to any such possible Transaction, including, without limitation, the status thereof, the existence and terms of this Agreement\nand the fact that the Evaluation Material has been made available to you. Without limiting the foregoing, you hereby expressly confirm and agree\nthat no public disclosure with respect to any discussions or negotiations concerning a possible Transaction is now required by reason of securities\nlaws or similar requirements related to general disclosure and in the event you determine that such disclosure is required in the future, no such\ndisclosures shall be made unless and until you have consulted, to the extent permitted by applicable law or cognizant authority, with the Company\nregarding the necessity and form of any such disclosure and otherwise complied with this paragraph.\nWithout limitation of the foregoing, you further agree that, without the prior written consent of the Company, you will not, directly or indirectly,\nenter in any agreement, arrangement or understanding, or any discussions which might lead to an agreement, arrangement or understanding, with any\nperson regarding participation in a possible Transaction as a principal, coinvestor, an equity investor or any person other than a financial institution\nproviding or underwriting debt financing. For the avoidance of doubt, the term “Representatives” as applied to you shall not include any such\npotential principal, co-investor, equity investor or person other than a financial institution providing or underwriting debt financing.\nCompelled Disclosure\nIn the event that you are requested or required to disclose all or any part of the information contained in the Evaluation Material pursuant to the\nterms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a federal, state or local governmental or regulatory\nbody or\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 3\npursuant to a civil investigative demand or similar judicial process or otherwise, to the extent permitted by applicable law or cognizant authority, you\nwill (i) notify the Company in writing immediately of the existence, terms and circumstances surrounding such request or requirement, (ii) consult\nwith the Company on the advisability of taking legally available steps to resist or narrow such request or requirement, (iii) if disclosure of any such\ninformation is required, disclose only that portion of the information which, upon written advice of your legal counsel, you are legally required to\ndisclose and (iv) exercise your best efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded to such\ninformation. In any event, you will cooperate with the Company to obtain such a protective order or other assurance. Any expense you incur in\nconnection with the Company’s desire to narrow or limit the scope of the request or requirement shall be the responsibility of the Company.\nNon-Solicitation of Employees\nUntil the earlier of (i) the consummation by you of a Transaction, (ii) eighteen months after termination of discussions relating to a possible\nTransaction between you and the Company, and (iii) two years from the date of this Agreement, you will not, without the Company’s prior written\nconsent, directly or indirectly solicit for purposes of employment, offer to hire, entice away or offer to enter into any contract with, or hire any\nemployee of the Company: provided, however, that this paragraph shall not prohibit you or any of your Representatives from engagement in any\ngeneral advertising or general solicitation not targeted to the Company’s employees or hiring employees who respond to such a solicitation with no\nother action or by you or your Representatives in violation of this provision: and provided, further, that, following execution by you and the\nCompany of a definitive agreement providing for a Transaction between you and the Company, this paragraph shall not prohibit you or any of your\nRepresentatives from offering employees employment in anticipation of and conditioned upon the consummation of such Transaction.\nStandstill\nYou represent and warrant to the Company that, as of the date hereof, you do not beneficially own any securities of the Company or any securities or\ncontract rights (other than broadly based index funds) the terms or value of which are dependent on securities of the Company. For a period of two\nyears from the date of this Agreement, you will not, directly or indirectly, and you will cause any person or entity controlled by you not to, without\nthe prior written consent of the Board of Directors of the Company, (i) in any manner acquire, agree to acquire or make any proposal to acquire,\ndirectly or indirectly, any securities or property of the Company or any of its affiliates, or any securities or contract rights (other than broadly based\nindex funds) the terms or value of which are dependent on securities of the Company, (ii) propose to enter into, directly or indirectly, any merger,\nconsolidation, recapitalization, business combination, partnership, joint venture or other similar transaction involving the Company or any of its\naffiliates, (iii) make, or in any way participate in any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and\nExchange Commission) to vote, or seek to advise or influence any person with respect to the voting of any voting securities of the Company or any\nof its affiliates, (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the 1934 Act) with respect to any\nvoting securities of the Company or any of its affiliates, (v) negotiate, have any discussions or enter into any arrangements, understandings or\nagreements (whether written or oral) with, or advise, finance, assist or encourage, any other persons in connection with any of the foregoing, or,\nmake any investment in\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 4\nany other person that engages, or offers or proposes to engage, in any of the foregoing (it being understood that, without limiting the generality of the\nforegoing, you shall not be permitted to act as a joint bidder or co-bidder with any other person with respect to the Company), (vi) otherwise act,\nalone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vii) disclose any\nintention, plan or arrangement inconsistent with the foregoing or (viii) advise, assist or encourage any other persons in connection with any of the\nforegoing. Unless and until you have received the prior written invitation or approval of the Company to do so, you also agree during such period not\nto (x) request the Company (or Company Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this\nsentence), (y) take any action which might require the Company or any of its affiliates to make a public announcement regarding this Agreement or\nthe possibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, a Transaction or\n(z) communicate with the Company’s shareholders regarding the subject matter of this Agreement.\nProhibition on Trading\nIn addition, you hereby acknowledge that you are aware, and that you will advise your Representatives who receive any Evaluation Material, that the\nUnited States securities laws prohibit any person who has received from an issuer material, non public information from purchasing or selling\nsecurities of such issuer (and options, warrants and rights relating thereto) or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person (including, without limitation, any of your Representatives) is likely to purchase\nor sell such securities. You hereby agree that neither you nor your Representatives will use or communicate the Evaluation Material in violation of\nthese laws.\nReturn or Destruction of Documents\nIf you determine that you do not wish to proceed with a Transaction or your evaluation thereof, you will promptly advise the Company and Stone\nKey in writing of that decision. In that case, or in the event that (i) a Transaction is not consummated by you or (ii) at any time the Company so\nrequests, you will promptly (a) deliver to the Company all of the Evaluation Material, including all copies, reproductions, summaries, analyses or\nextracts thereof or based thereon in your possession or in the possession of any of your Representatives or (b) destroy all Evaluation Material in your\npossession or in the possession of any of your Representatives (such destruction to be certified by you in writing to the Company). Notwithstanding\nthe delivery or destruction of the Evaluation Material, you agree that you and your Representatives shall continue to be bound by your obligations\nunder this Agreement.\nNo Unauthorized Contact\nUnless otherwise agreed in writing by the Company, all (i) communications regarding any possible Transaction, (ii) requests for additional\ninformation or Evaluation Material, (iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding procedures,\nwill be submitted or directed to Stone Key. You further agree not to contact any officers, directors or employees of the Company in connection with a\npossible Transaction without the prior written consent of the Company.\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 5\nThis Agreement does not constitute or create any obligation of the Company or its Representatives to provide any Evaluation Material or other\ninformation to you, but defines the duties and obligations of you and your Representatives with respect to the Evaluation Material to the extent it\nmay be disclosed or made available. Under no circumstances will the Company or any of its Representatives be obligated to disclose or make\navailable any information, including, without limitation, any Evaluation Material, which the Company in its sole and absolute discretion determines\nnot to disclose. You understand and acknowledge that none of the Company, Stone Key nor any of their respective Representatives is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information provided to\nyou by or on behalf of the Company. None of the Company. Stone Key nor any of their respective Representatives shall have any liability to you or\nany other person (including, without limitation, any of your Representatives) resulting from your use of the Evaluation Material, other than as may\nbe set forth in any definitive agreement providing for a Transaction and subject to the terms, conditions and limitations of any such agreement.\nYou agree that the Company will not be under any legal obligation of any kind whatsoever with respect to any Transaction by virtue of (x) this\nAgreement or (y) any written or oral expression or communication with respect to any Transaction by any of the Company’s Representatives except,\nin the case of this Agreement, for the matters specifically agreed to herein. You further acknowledge and agree that (i) the Company shall be free to\nconduct the process for a Transaction as the Company in its sole discretion shall determine (including, without limitation, negotiating with any other\nperson and entering into a definitive agreement without prior notice to you or any other person); (ii) any of the procedures relating to a Transaction\nmay be changed at any time without notice to you or any other person; (iii) the Company shall have the right to reject or accept any potential\nproposal, offer or participant therein, for any or no reason whatsoever, in its sole discretion; and (iv) neither you nor any of your Representatives\ncurrently have any claim whatsoever against the Company, Stone Key or any of their respective Representatives arising out of or relating to a\nTransaction based on this Agreement or otherwise.\nActing as Principal\nYou represent and warrant that you are acting as a principal in any possible Transaction and are not represented by any broker or similar party.\nLegal Remedy\nYou acknowledge that money damages and remedies at law will be inadequate to protect the Company against any actual or threatened breach of this\nAgreement by you or by your Representatives and, without prejudice to any rights and remedies otherwise available to the Company, you agree to\nthe granting of specific performance, injunctive relief and other equitable remedies in the Company’s favor without proof of actual damages, and you\nfurther agree to waive, and to cause your Representatives to waive, any requirement for the securing or posting of any bond in connection with any\nsuch remedy. In the event of any breach of this Agreement by you or your Representatives, you agree to reimburse the Company promptly upon\ndemand for all out-of-pocket costs and expenses incurred by it in the enforcement of its rights hereunder (including, without limitation, reasonable\nfees and disbursements of counsel).\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 6\nGoverning Law\nThe validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New\nYork, without giving effect to conflicts of laws principles. You irrevocably (i) submit to the jurisdiction of any court of the State of New York or the\nUnited States District Court for the Southern District of New York for the purpose of any suit, action, or other proceeding arising out of this\nAgreement, or any of the agreements or transactions contemplated hereby (each a “Proceeding”) and agree that service of any process, summons,\nnotice or document delivered by hand or sent by U.S. registered mail to your address set forth above shall be effective service of process for any\naction, suit or proceeding brought against you in any such court, (ii) agree that all claims in respect of any Proceeding may be heard and determined\nin any such court, (iii) irrevocably waive, to the fullest extent permitted by law, any immunity you have acquired, or hereafter may acquire, from\njurisdiction of any such court or from any legal process therein, (iv) irrevocably waive, to the fullest extent permitted by law, any right to trial by\njury in any Proceeding, and (v) agree not to commence any Proceeding other than in such court, and waive, to the fullest extent permitted by\napplicable law, any claim that any such Proceeding is brought in an inconvenient forum.\nNo Waiver\nNo failure or delay by the Company in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any\nsingle or partial exercise thereof preclude any other or further exercise of any right, power or privilege.\nSuccessors and Assigns\nThis Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. You may not assign this\nAgreement or any part thereof without the prior written consent of the Company, and any purported assignment without such consent shall be null\nand void.\nSeverability\nIf it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is invalid or\nunenforceable, (i) the remaining terms and provision hereof shall be unimpaired and shall remain in full force and effect to the fullest extent\npermitted by applicable law and (ii) the invalid or unenforceable term or provision shall be replaced by a term or provision that is valid and\nenforceable and that comes closest to expressing the Company’s intention with respect to such invalid or unenforceable term or provision.\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 7\nEntire Agreement\nThis Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements, arrangements\nand understandings relating to the matters provided for herein. This Agreement may not be amended or modified in any manner nor may any of its\nprovisions be waived except by written amendment executed by the parties. A waiver, amendment or modification shall only be effective if (a) it is\nin writing and signed by the Company and you, (b) it specifically refers to this Agreement and (c) it specifically states that the Company and/or you,\nas the case may be, is waiving or amending its rights hereunder. Any such amendment, modification or waiver shall be effective only in the specific\ninstance and for the purpose for which it was given. This Agreement shall, except as otherwise specifically set forth herein, cease to be effective two\nyears after the date hereof.\nCounterparts\nFor the convenience of the parties hereto, any number of counterparts of this Agreement may be executed by the parties hereto, each of which shall\nbe an original instrument and all of which taken together shall constitute one and the same Agreement. Delivery of a signed counterpart of this\nAgreement by e-mail or facsimile transmission shall constitute valid and sufficient delivery thereof.\nThis Agreement is being delivered to you in duplicate. Please execute and return one copy of this letter agreement which will constitute your\nagreement with respect to the subject matter of this Agreement.\nVery truly yours.\nICx Technologies, Inc.\nBy: /s/ James Luby\nName: James Luby\nTitle: Secretary\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 8\nConfirmed and Agreed to as of\nthe date first written above:\nFLIR Systems, Inc.\nBy: /s/ William W. Davis\nName: William W. Davis\nTitle:  Senior Vice President, General Counsel &\nSecretary	EX-99.(D).(5) 17 dex99d5.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(5)\nMarch 17, 2010\nFLIR Systems, Inc.\n27700 SW Parkway Ave.\nWilsonville. OR 97070\nAttention: Mr. Craig Stoehr\nDirector Corporate Development and Investor Relations\nConfidentiality ty Agreemen\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction (a "Transaction") involving ICx Technologies, Inc. or certain of its affiliates,\nsubsidiaries, assets and/or business divisions (collectively, the "Company"), you have requested information. In consideration of, and as a condition\nto, your being furnished with such information and any other Evaluation Material (as defined below), the Company hereby requests your agreement\nas set forth herein. As used in this letter agreement (this "Agreement"), the term "Evaluation Material" means all information regarding the\nCompany, its businesses, technology, products, prospects and plans, a Transaction or the fact that the Company may pursue a Transaction with you\nor other parties, the existence and terms of this Letter Agreement and other information furnished to you in connection with the Transaction by the\nCompany or any of its Representatives (as defined below), irrespective of form or medium of communication, whether prepared by the Company, its\nRepresentatives or otherwise and whether furnished before, on or after the date of this Agreement, together with any and all analyses, compilations,\nsummaries, forecasts, studies or other materials prepared by you or your Representatives that contain, are based on or otherwise incorporate, in\nwhole or part, such information. The term "Representatives" includes, without limitation, FLIR Systems, Inc.'s affiliates and its and their respective\ndirectors, officers, employees, advisors, agents, representatives, financial institutions providing or underwriting solely debt financing or "controlling\npersons" (within the meaning of the Securities Exchange Act of 1934, as amended (the "1934 Act")); provided, that, should you provide Evaluation\nMaterial to any such financial institution seeking to arrange debt financing, you shall promptly provide written notice to the Company as to the\nidentity of any such financial institution. The Company is being advised by Stone Key Partners LLC and the Stone Key Securities division of\nHudson Partners Securities LLC (together, "Stone Key").\nUse of Evaluation Materials\nYou and your Representatives (i) will use the Evaluation Material solely for the purpose of evaluating a possible Transaction with the Company\ninvolving\nyou\nor\nyour\naffiliates\nand\n(ii)\nwill\nkeep\nthe\nEvaluation\nMaterial\nstrictly\nconfidential\nand\n(except\nas\nrequired\nby\napplicable\nlaw,\nregulation\nor\nlegal process, and only after compliance with the paragraph titled "Compelled Disclosure" below) will not, without the Company's prior written\nconsent, disclose any information in the Evaluation Material to any person, except that the Evaluation Material (or portions thereof) may\nbe\ndisclosed to those of your Representatives who need to know such information solely for the purpose of evaluating a possible Transaction with the\nCompany (it being understood that prior to such disclosure your Representatives will be informed of the confidential nature of the Evaluation\nMaterial, will be provided with a copy of this Agreement and will agree to be bound by the terms hereof). You will make all reasonable, necessary\nand appropriate efforts to safeguard Evaluation\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 2\nMaterial from disclosure to anyone other than as permitted hereby. You agree to be responsible for any breach of this Agreement by your\nRepresentatives (including, without limitation, any actions or inactions by your Representatives that would constitute a breach if such\nRepresentatives were original signatories hereto).\nThe term "Evaluation Material" does not include any information which (i) at the time of disclosure or thereafter is generally known by the public\n(other than as a result of its disclosure by you or your Representatives) or (ii) was or becomes available to you on a non-confidential basis from a\nperson not otherwise bound by a confidentiality agreement with the Company or its Representatives or prohibited from transmitting the information\nto you by law, contractual obligation, fiduciary duly or otherwise. As used in this Agreement, the term "person" shall be broadly interpreted to\ninclude, without limitation, any corporation, company, joint venture, partnership, association or individual. You agree that the Evaluation Material\nis\nand shall remain the property of the Company or its subsidiaries and affiliates, as applicable, and that neither the Company nor any of\nits\nRepresentatives, subsidiaries or affiliates has granted you any license, copyright, or similar right with respect to any of the Evaluation Material\nor\nany other information provided to you by or on behalf of the Company.\nNon-Disclosure\nUnless otherwise required by applicable law in the reasonable written opinion of your legal counsel, but only after compliance with the paragraph\ntitled "Compelled Disclosure" below, neither you nor your Representatives will, without the Company's prior written consent, disclose to any person\neither the fact that discussions or negotiations have taken or may take place concerning a possible Transaction, or any of the terms, conditions or\nother facts with respect to any such possible Transaction, including, without limitation, the status thereof, the existence and terms of this Agreement\nand the fact that the Evaluation Material has been made available to you. Without limiting the foregoing, you hereby expressly confirm and agree\nthat no public disclosure with respect to any discussions or negotiations concerning a possible Transaction is now required by reason of securities\nlaws or similar requirements related to general disclosure and in the event you determine that such disclosure is required in the future, no such\ndisclosures shall be made unless and until you have consulted, to the extent permitted by applicable law or cognizant authority, with the Company\nregarding the necessity and form of any such disclosure and otherwise complied with this paragraph.\nWithout limitation of the foregoing, you further agree that, without the prior written consent of the Company, you will not, directly or indirectly,\nenter in any agreement, arrangement or understanding, or any discussions which might lead to an agreement, arrangement or understanding, with any\nperson regarding participation in a possible Transaction as a principal, coinvestor, an equity investor or any person other than a financial institution\nproviding or underwriting debt financing. For the avoidance of doubt, the term "Representatives" as applied to you shall not include any such\npotential principal, co-investor, equity investor or person other than a financial institution providing or underwriting debt financing.\nCompelled Disclosure\nIn the event that you are requested or required to disclose all or any part of the information contained in the Evaluation Material pursuant to the\nterms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a federal, state or local governmental or regulatory\nbody or\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 3\npursuant to a civil investigative demand or similar judicial process or otherwise, to the extent permitted by applicable law or cognizant authority, you\nwill\n(i)\nnotify\nthe Company in writing immediately of the existence, terms and circumstances surrounding such request or requirement, (ii) consult\nwith the Company on the advisability of taking legally available steps to resist or narrow such request or requirement, (iii) if disclosure of any such\ninformation is required, disclose only that portion of the information which, upon written advice of your legal counsel, you are legally required\nto\ndisclose and (iv) exercise your best efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded to such\ninformation. In any event, you will cooperate with the Company to obtain such a protective order or other assurance. Any expense you incur in\nconnection with the Company's desire to narrow or limit the scope of the request or requirement shall be the responsibility of the Company.\nNon-Solicitation of Employees\nUntil the earlier of (i) the consummation by you of a Transaction, (ii) eighteen months after termination of discussions relating to a possible\nTransaction between you and the Company, and (iii) two years from the date of this Agreement, you will not, without the Company's prior written\nconsent, directly or indirectly solicit for purposes of employment, offer to hire, entice away or offer to enter into any contract with, or hire any\nemployee of the Company: provided, however, that this paragraph shall not prohibit you or any of your Representatives from engagement in any\ngeneral advertising or general solicitation not targeted to the Company's employees or hiring employees who respond to such a solicitation with\nno\nother action or by you or your Representatives in violation of this provision: and provided, further, that, following execution by you and the\nCompany of a definitive agreement providing for a Transaction between you and the Company, this paragraph shall not prohibit you or any of your\nRepresentatives from offering employees employment in anticipation of and conditioned upon the consummation of such Transaction.\nStandstill\nYou represent and warrant to the Company that, as of the date hereof, you do not beneficially own any securities of the Company or any securities\nor\ncontract rights (other than broadly based index funds) the terms or value of which are dependent on securities of the Company. For a period of two\nyears from the date of this Agreement, you will not, directly or indirectly, and you will cause any person or entity controlled by you not to, without\nthe prior written consent of the Board of Directors of the Company, (i) in any manner acquire, agree to acquire or make any proposal to acquire,\ndirectly or indirectly, any securities or property of the Company or any of its affiliates, or any securities or contract rights (other than broadly based\nindex funds) the terms or value of which are dependent on securities of the Company, (ii) propose to enter into, directly or indirectly, any merger,\nconsolidation, recapitalization, business combination, partnership, joint venture or other similar transaction involving the Company or any of\nits\naffiliates, (iii) make, or in any way participate in any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and\nExchange Commission) to vote, or seek to advise or influence any person with respect to the voting of any voting securities of the Company or\nany\nof its affiliates, (iv) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the 1934 Act) with respect to\nany\nvoting\nsecurities\nof\nthe\nCompany\nor\nany\nof\nits\naffiliates,\n(v)\nnegotiate,\nhave\nany\ndiscussions\nor\nenter\ninto\nany\narrangements,\nunderstandings\nor\nagreements (whether written or oral) with, or advise, finance, assist or encourage, any other persons in connection with any of the foregoing,\nor,\nmake any investment in\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 4\nany other person that engages, or offers or proposes to engage, in any of the foregoing (it being understood that, without limiting the generality of the\nforegoing, you shall not be permitted to act as a joint bidder or co-bidder with any other person with respect to the Company), (vi) otherwise act,\nalone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vii) disclose any\nintention, plan or arrangement inconsistent with the foregoing or (viii) advise, assist or encourage any other persons in connection with any of the\nforegoing. Unless and until you have received the prior written invitation or approval of the Company to do so, you also agree during such period not\nto (x) request the Company (or Company Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this\nsentence), (y) take any action which might require the Company or any of its affiliates to make a public announcement regarding this Agreement or\nthe possibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, a Transaction or\n(z) communicate with the Company's shareholders regarding the subject matter of this Agreement.\nProhibition on Trading\nIn addition, you hereby acknowledge that you are aware, and that you will advise your Representatives who receive any Evaluation Material, that\nthe\nUnited States securities laws prohibit any person who has received from an issuer material, non public information from purchasing or selling\nsecurities of such issuer (and options, warrants and rights relating thereto) or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person (including, without limitation, any of your Representatives) is likely to purchase\nor sell such securities. You hereby agree that neither you nor your Representatives will use or communicate the Evaluation Material in violation of\nthese laws.\nReturn or Destruction of Documents\nIf you determine that you do not wish to proceed with a Transaction or your evaluation thereof, you will promptly advise the Company and Stone\nKey in writing of that decision. In that case, or in the event that (i) a Transaction is not consummated by you or (ii) at any time the Company so\nrequests, you will promptly (a) deliver to the Company all of the Evaluation Material, including all copies, reproductions, summaries, analyses or\nextracts thereof or based thereon in your possession or in the possession of any of your Representatives or (b) destroy all Evaluation Material in your\npossession or in the possession of any of your Representatives (such destruction to be certified by you in writing to the Company). Notwithstanding\nthe delivery or destruction of the Evaluation Material, you agree that you and your Representatives shall continue to be bound by your obligations\nunder this Agreement.\nNo Unauthorized Contact\nUnless otherwise agreed in writing by the Company, all (i) communications regarding any possible Transaction, (ii) requests for additional\ninformation or Evaluation Material, (iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding procedures,\nwill be submitted or directed to Stone Key. You further agree not to contact any officers, directors or employees of the Company in connection with\na\npossible Transaction without the prior written consent of the Company.\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 5\nNo Obligation, Representation or Warranty.\nThis Agreement does not constitute or create any obligation of the Company or its Representatives to provide any Evaluation Material or other\ninformation to you, but defines the duties and obligations of you and your Representatives with respect to the Evaluation Material to the extent it\nmay be disclosed or made available. Under no circumstances will the Company or any of its Representatives be obligated to disclose or make\navailable any information, including, without limitation, any Evaluation Material, which the Company in its sole and absolute discretion determines\nnot to disclose. You understand and acknowledge that none of the Company, Stone Key nor any of their respective Representatives is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information provided\nto\nyou by or on behalf of the Company. None of the Company. Stone Key nor any of their respective Representatives shall have any liability to you or\nany other person (including, without limitation, any of your Representatives) resulting from your use of the Evaluation Material, other than as may\nbe set forth in any definitive agreement providing for a Transaction and subject to the terms, conditions and limitations of any such agreement.\nYou agree that the Company will not be under any legal obligation of any kind whatsoever with respect to any Transaction by virtue of (x) this\nAgreement or (y) any written or oral expression or communication with respect to any Transaction by any of the Company's Representatives except,\nin the case of this Agreement, for the matters specifically agreed to herein. You further acknowledge and agree that (i) the Company shall be free\nto\nconduct the process for a Transaction as the Company in its sole discretion shall determine (including, without limitation, negotiating with any other\nperson and entering into a definitive agreement without prior notice to you or any other person); (ii) any of the procedures relating to a Transaction\nmay be changed at any time without notice to you or any other person; (iii) the Company shall have the right to reject or accept any potential\nproposal, offer or participant therein, for any or no reason whatsoever, in its sole discretion; and (iv) neither you nor any of your Representatives\ncurrently have any claim whatsoever against the Company, Stone Key or any of their respective Representatives arising out of or relating to a\nTransaction based on this Agreement or otherwise.\nActing as Principal\nYou represent and warrant that you are acting as a principal in any possible Transaction and are not represented by any broker or similar party.\nLegal Remedy\nYou acknowledge that money damages and remedies at law will be inadequate to protect the Company against any actual or threatened breach of this\nAgreement by you or by your Representatives and, without prejudice to any rights and remedies otherwise available to the Company, you agree to\nthe granting of specific performance, injunctive relief and other equitable remedies in the Company's favor without proof of actual damages, and you\nfurther agree to waive, and to cause your Representatives to waive, any requirement for the securing or posting of any bond in connection with any\nsuch remedy. In the event of any breach of this Agreement by you or your Representatives, you agree to reimburse the Company promptly upon\ndemand for all out-of-pocket costs and expenses incurred by it in the enforcement of its rights hereunder (including, without limitation, reasonable\nfees and disbursements of counsel).\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 6\nGoverning Law\nThe validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New\nYork, without giving effect to conflicts of laws principles. You irrevocably (i) submit to the jurisdiction of any court of the State of New York or the\nUnited States District Court for the Southern District of New York for the purpose of any suit, action, or other proceeding arising out of this\nAgreement, or any of the agreements or transactions contemplated hereby (each a "Proceeding") and agree that service of any process, summons,\nnotice or document delivered by hand or sent by U.S. registered mail to your address set forth above shall be effective service of process for any\naction, suit or proceeding brought against you in any such court, (ii) agree that all claims in respect of any Proceeding may be heard and determined\nin any such court, (iii) irrevocably waive, to the fullest extent permitted by law, any immunity you have acquired, or hereafter may acquire, from\njurisdiction of any such court or from any legal process therein, (iv) irrevocably waive, to the fullest extent permitted by law, any right to trial by\njury in any Proceeding, and (v) agree not to commence any Proceeding other than in such court, and waive, to the fullest extent permitted by\napplicable law, any claim that any such Proceeding is brought in an inconvenient forum.\nNo Waiver\nNo failure or delay by the Company in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall\nany\nsingle or partial exercise thereof preclude any other or further exercise of any right, power or privilege.\nSuccessors and Assigns\nThis Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. You may not assign this\nAgreement or any part thereof without the prior written consent of the Company, and any purported assignment without such consent shall be null\nand void.\nSeverability.\nIf it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is invalid\nor\nunenforceable, (i) the remaining terms and provision hereof shall be unimpaired and shall remain in full force and effect to the fullest extent\npermitted by applicable law and (ii) the invalid or unenforceable term or provision shall be replaced by a term or provision that is valid and\nenforceable and that comes closest to expressing the Company's intention with respect to such invalid or unenforceable term or provision.\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 7\nEntire Agreement\nThis Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements, arrangements\nand understandings relating to the matters provided for herein. This Agreement may not be amended or modified in any manner nor may any of its\nprovisions be waived except by written amendment executed by the parties. A waiver, amendment or modification shall only be effective if (a) it is\nin writing and signed by the Company and you, (b) it specifically refers to this Agreement and (c) it specifically states that the Company and/or\nyou,\nas the case may be, is waiving or amending its rights hereunder. Any such amendment, modification or waiver shall be effective only in the specific\ninstance and for the purpose for which it was given. This Agreement shall, except as otherwise specifically set forth herein, cease to be effective two\nyears after the date hereof.\nCounterparts\nFor the convenience of the parties hereto, any number of counterparts of this Agreement may be executed by the parties hereto, each of which shall\nbe an original instrument and all of which taken together shall constitute one and the same Agreement. Delivery of a signed counterpart of this\nAgreement by e-mail or facsimile transmission shall constitute valid and sufficient delivery thereof.\nThis Agreement is being delivered to you in duplicate. Please execute and return one copy of this letter agreement which will constitute your\nagreement with respect to the subject matter of this Agreement.\nVery truly yours.\nICx Technologies, Inc.\nBy: /s/ James Luby\nName: James Luby\nTitle: Secretary\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 8\nConfirmed and Agreed to as of\nthe date first written above:\nFLIR Systems, Inc.\nBy: /s/ William W. Davis\nName: William W. Davis\nTitle: Senior Vice President, General Counsel &\nSecretary	EX-99.(D).(5) 17 dex99d5.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(5)\nMarch 17, 2010\nFLIR Systems, Inc.\n27700 SW Parkway Ave.\nWilsonville. OR 97070\nAttention: Mr. Craig Stoehr\nDirector - Corporate Development and Investor Relations\nConfidentiality Agreement\nLadies and Gentlemen:\nIn connection with your consideration of a possible transaction (a “Transaction”) involving ICx Technologies, Inc. or certain of its affiliates,\nsubsidiaries, assets and/or business divisions (collectively, the “Company”), you have requested information. In consideration of, and as a condition\nto, your being furnished with such information and any other Evaluation Material (as defined below), the Company hereby requests your agreement\nas set forth herein. As used in this letter agreement (this “Agreement”), the term “Evaluation Material” means all information regarding the\nCompany, its businesses, technology, products, prospects and plans, a Transaction or the fact that the Company may pursue a Transaction with you\nor other parties, the existence and terms of this Letter Agreement and other information furnished to you in connection with the Transaction by the\nCompany or any of its Representatives (as defined below), irrespective of form or medium of communication, whether prepared by the Company, its\nRepresentatives or otherwise and whether furnished before, on or after the date of this Agreement, together with any and all analyses, compilations,\nsummaries, forecasts, studies or other materials prepared by you or your Representatives that contain, are based on or otherwise incorporate, in\nwhole or part, such information. The term “Representatives” includes, without limitation, FLIR Systems, Inc.’s affiliates and its and their respective\ndirectors, officers, employees, advisors, agents, representatives, financial institutions providing or underwriting solely debt financing or “controlling\npersons” (within the meaning of the Securities Exchange Act of 1934, as amended (the “1934 Act”)); provided, that, should you provide Evaluation\nMaterial to any such financial institution seeking to arrange debt financing, you shall promptly provide written notice to the Company as to the\nidentity of any such financial institution. The Company is being advised by Stone Key Partners LLC and the Stone Key Securities division of\nHudson Partners Securities LLC (together, “Stone Key”).\nUse of Evaluation Materials\nYou and your Representatives (i) will use the Evaluation Material solely for the purpose of evaluating a possible Transaction with the Company\ninvolving you or your affiliates and (ii) will keep the Evaluation Material strictly confidential and (except as required by applicable law, regulation or\nlegal process, and only after compliance with the paragraph titled “Compelled Disclosure” below) will not, without the Company’s prior written\nconsent, disclose any information in the Evaluation Material to any person, except that the Evaluation Material (or portions thereof) may be\ndisclosed to those of your Representatives who need to know such information solely for the purpose of evaluating a possible Transaction with the\nCompany (it being understood that prior to such disclosure your Representatives will be informed of the confidential nature of the Evaluation\nMaterial, will be provided with a copy of this Agreement and will agree to be bound by the terms hereof). You will make all reasonable, necessary\nand appropriate efforts to safeguard Evaluation\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 2\nMaterial from disclosure to anyone other than as permitted hereby. You agree to be responsible for any breach of this Agreement by your\nRepresentatives (including, without limitation, any actions or inactions by your Representatives that would constitute a breach if such\nRepresentatives were original signatories hereto).\nThe term “Evaluation Material” does not include any information which (i) at the time of disclosure or thereafter is generally known by the public\n(other than as a result of its disclosure by you or your Representatives) or (ii) was or becomes available to you on a non-confidential basis from a\nperson not otherwise bound by a confidentiality agreement with the Company or its Representatives or prohibited from transmitting the information\nto you by law, contractual obligation, fiduciary duly or otherwise. As used in this Agreement, the term “person” shall be broadly interpreted to\ninclude, without limitation, any corporation, company, joint venture, partnership, association or individual. You agree that the Evaluation Material is\nand shall remain the property of the Company or its subsidiaries and affiliates, as applicable, and that neither the Company nor any of its\nRepresentatives, subsidiaries or affiliates has granted you any license, copyright, or similar right with respect to any of the Evaluation Material or\nany other information provided to you by or on behalf of the Company.\nNon-Disclosure\nUnless otherwise required by applicable law in the reasonable written opinion of your legal counsel, but only after compliance with the paragraph\ntitled “Compelled Disclosure” below, neither you nor your Representatives will, without the Company’s prior written consent, disclose to any person\neither the fact that discussions or negotiations have taken or may take place concerning a possible Transaction, or any of the terms, conditions or\nother facts with respect to any such possible Transaction, including, without limitation, the status thereof, the existence and terms of this Agreement\nand the fact that the Evaluation Material has been made available to you. Without limiting the foregoing, you hereby expressly confirm and agree\nthat no public disclosure with respect to any discussions or negotiations concerning a possible Transaction is now required by reason of securities\nlaws or similar requirements related to general disclosure and in the event you determine that such disclosure is required in the future, no such\ndisclosures shall be made unless and until you have consulted, to the extent permitted by applicable law or cognizant authority, with the Company\nregarding the necessity and form of any such disclosure and otherwise complied with this paragraph.\nWithout limitation of the foregoing, you further agree that, without the prior written consent of the Company, you will not, directly or indirectly,\nenter in any agreement, arrangement or understanding, or any discussions which might lead to an agreement, arrangement or understanding, with any\nperson regarding participation in a possible Transaction as a principal, coinvestor, an equity investor or any person other than a financial institution\nproviding or underwriting debt financing. For the avoidance of doubt, the term “Representatives” as applied to you shall not include any such\npotential principal, co-investor, equity investor or person other than a financial institution providing or underwriting debt financing.\nCompelled Disclosure\nIn the event that you are requested or required to disclose all or any part of the information contained in the Evaluation Material pursuant to the\nterms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a federal, state or local governmental or regulatory\nbody or\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 3\npursuant to a civil investigative demand or similar judicial process or otherwise, to the extent permitted by applicable law or cognizant authority, you\nwill (i) notify the Company in writing immediately of the existence, terms and circumstances surrounding such request or requirement, (ii) consult\nwith the Company on the advisability of taking legally available steps to resist or narrow such request or requirement, (iii) if disclosure of any such\ninformation is required, disclose only that portion of the information which, upon written advice of your legal counsel, you are legally required to\ndisclose and (iv) exercise your best efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded to such\ninformation. In any event, you will cooperate with the Company to obtain such a protective order or other assurance. Any expense you incur in\nconnection with the Company’s desire to narrow or limit the scope of the request or requirement shall be the responsibility of the Company.\nNon-Solicitation of Employees\nUntil the earlier of (i) the consummation by you of a Transaction, (ii) eighteen months after termination of discussions relating to a possible\nTransaction between you and the Company, and (iii) two years from the date of this Agreement, you will not, without the Company’s prior written\nconsent, directly or indirectly solicit for purposes of employment, offer to hire, entice away or offer to enter into any contract with, or hire any\nemployee of the Company: provided, however, that this paragraph shall not prohibit you or any of your Representatives from engagement in any\ngeneral advertising or general solicitation not targeted to the Company’s employees or hiring employees who respond to such a solicitation with no\nother action or by you or your Representatives in violation of this provision: and provided, further, that, following execution by you and the\nCompany of a definitive agreement providing for a Transaction between you and the Company, this paragraph shall not prohibit you or any of your\nRepresentatives from offering employees employment in anticipation of and conditioned upon the consummation of such Transaction.\nStandstill\nYou represent and warrant to the Company that, as of the date hereof, you do not beneficially own any securities of the Company or any securities or\ncontract rights (other than broadly based index funds) the terms or value of which are dependent on securities of the Company. For a period of two\nyears from the date of this Agreement, you will not, directly or indirectly, and you will cause any person or entity controlled by you not to, without\nthe prior written consent of the Board of Directors of the Company, (i) in any manner acquire, agree to acquire or make any proposal to acquire,\ndirectly or indirectly, any securities or property of the Company or any of its affiliates, or any securities or contract rights (other than broadly based\nindex funds) the terms or value of which are dependent on securities of the Company, (ii) propose to enter into, directly or indirectly, any merger,\nconsolidation, recapitalization, business combination, partnership, joint venture or other similar transaction involving the Company or any of its\naffiliates, (iii) make, or in any way participate in any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and\nExchange Commission) to vote, or seek to advise or influence any person with respect to the voting of any voting securities of the Company or any\nof its affiliates, (iv) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the 1934 Act) with respect to any\nvoting securities of the Company or any of its affiliates, (v) negotiate, have any discussions or enter into any arrangements, understandings or\nagreements (whether written or oral) with, or advise, finance, assist or encourage, any other persons in connection with any of the foregoing, or,\nmake any investment in\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 4\nany other person that engages, or offers or proposes to engage, in any of the foregoing (it being understood that, without limiting the generality of the\nforegoing, you shall not be permitted to act as a joint bidder or co-bidder with any other person with respect to the Company), (vi) otherwise act,\nalone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, (vii) disclose any\nintention, plan or arrangement inconsistent with the foregoing or (viii) advise, assist or encourage any other persons in connection with any of the\nforegoing. Unless and until you have received the prior written invitation or approval of the Company to do so, you also agree during such period not\nto (x) request the Company (or Company Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this\nsentence), (y) take any action which might require the Company or any of its affiliates to make a public announcement regarding this Agreement or\nthe possibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, a Transaction or\n(z) communicate with the Company’s shareholders regarding the subject matter of this Agreement.\nProhibition on Trading\nIn addition, you hereby acknowledge that you are aware, and that you will advise your Representatives who receive any Evaluation Material, that the\nUnited States securities laws prohibit any person who has received from an issuer material, non public information from purchasing or selling\nsecurities of such issuer (and options, warrants and rights relating thereto) or from communicating such information to any other person under\ncircumstances in which it is reasonably foreseeable that such person (including, without limitation, any of your Representatives) is likely to purchase\nor sell such securities. You hereby agree that neither you nor your Representatives will use or communicate the Evaluation Material in violation of\nthese laws.\nReturn or Destruction of Documents\nIf you determine that you do not wish to proceed with a Transaction or your evaluation thereof, you will promptly advise the Company and Stone\nKey in writing of that decision. In that case, or in the event that (i) a Transaction is not consummated by you or (ii) at any time the Company so\nrequests, you will promptly (a) deliver to the Company all of the Evaluation Material, including all copies, reproductions, summaries, analyses or\nextracts thereof or based thereon in your possession or in the possession of any of your Representatives or (b) destroy all Evaluation Material in your\npossession or in the possession of any of your Representatives (such destruction to be certified by you in writing to the Company). Notwithstanding\nthe delivery or destruction of the Evaluation Material, you agree that you and your Representatives shall continue to be bound by your obligations\nunder this Agreement.\nNo Unauthorized Contact\nUnless otherwise agreed in writing by the Company, all (i) communications regarding any possible Transaction, (ii) requests for additional\ninformation or Evaluation Material, (iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding procedures,\nwill be submitted or directed to Stone Key. You further agree not to contact any officers, directors or employees of the Company in connection with a\npossible Transaction without the prior written consent of the Company.\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 5\nNo Obligation, Representation or Warranty\nThis Agreement does not constitute or create any obligation of the Company or its Representatives to provide any Evaluation Material or other\ninformation to you, but defines the duties and obligations of you and your Representatives with respect to the Evaluation Material to the extent it\nmay be disclosed or made available. Under no circumstances will the Company or any of its Representatives be obligated to disclose or make\navailable any information, including, without limitation, any Evaluation Material, which the Company in its sole and absolute discretion determines\nnot to disclose. You understand and acknowledge that none of the Company, Stone Key nor any of their respective Representatives is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information provided to\nyou by or on behalf of the Company. None of the Company. Stone Key nor any of their respective Representatives shall have any liability to you or\nany other person (including, without limitation, any of your Representatives) resulting from your use of the Evaluation Material, other than as may\nbe set forth in any definitive agreement providing for a Transaction and subject to the terms, conditions and limitations of any such agreement.\nYou agree that the Company will not be under any legal obligation of any kind whatsoever with respect to any Transaction by virtue of (x) this\nAgreement or (y) any written or oral expression or communication with respect to any Transaction by any of the Company’s Representatives except,\nin the case of this Agreement, for the matters specifically agreed to herein. You further acknowledge and agree that (i) the Company shall be free to\nconduct the process for a Transaction as the Company in its sole discretion shall determine (including, without limitation, negotiating with any other\nperson and entering into a definitive agreement without prior notice to you or any other person); (ii) any of the procedures relating to a Transaction\nmay be changed at any time without notice to you or any other person; (iii) the Company shall have the right to reject or accept any potential\nproposal, offer or participant therein, for any or no reason whatsoever, in its sole discretion; and (iv) neither you nor any of your Representatives\ncurrently have any claim whatsoever against the Company, Stone Key or any of their respective Representatives arising out of or relating to a\nTransaction based on this Agreement or otherwise.\nActing as Principal\nYou represent and warrant that you are acting as a principal in any possible Transaction and are not represented by any broker or similar party.\nLegal Remedy\nYou acknowledge that money damages and remedies at law will be inadequate to protect the Company against any actual or threatened breach of this\nAgreement by you or by your Representatives and, without prejudice to any rights and remedies otherwise available to the Company, you agree to\nthe granting of specific performance, injunctive relief and other equitable remedies in the Company’s favor without proof of actual damages, and you\nfurther agree to waive, and to cause your Representatives to waive, any requirement for the securing or posting of any bond in connection with any\nsuch remedy. In the event of any breach of this Agreement by you or your Representatives, you agree to reimburse the Company promptly upon\ndemand for all out-of-pocket costs and expenses incurred by it in the enforcement of its rights hereunder (including, without limitation, reasonable\nfees and disbursements of counsel).\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 6\nGoverning Law\nThe validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New\nYork, without giving effect to conflicts of laws principles. You irrevocably (i) submit to the jurisdiction of any court of the State of New York or the\nUnited States District Court for the Southern District of New York for the purpose of any suit, action, or other proceeding arising out of this\nAgreement, or any of the agreements or transactions contemplated hereby (each a “Proceeding”) and agree that service of any process, summons,\nnotice or document delivered by hand or sent by U.S. registered mail to your address set forth above shall be effective service of process for any\naction, suit or proceeding brought against you in any such court, (ii) agree that all claims in respect of any Proceeding may be heard and determined\nin any such court, (iii) irrevocably waive, to the fullest extent permitted by law, any immunity you have acquired, or hereafter may acquire, from\njurisdiction of any such court or from any legal process therein, (iv) irrevocably waive, to the fullest extent permitted by law, any right to trial by\njury in any Proceeding, and (v) agree not to commence any Proceeding other than in such court, and waive, to the fullest extent permitted by\napplicable law, any claim that any such Proceeding is brought in an inconvenient forum.\nNo Waiver\nNo failure or delay by the Company in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any\nsingle or partial exercise thereof preclude any other or further exercise of any right, power or privilege.\nSuccessors and Assigns\nThis Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. You may not assign this\nAgreement or any part thereof without the prior written consent of the Company, and any purported assignment without such consent shall be null\nand void.\nSeverability\nIf it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is invalid or\nunenforceable, (i) the remaining terms and provision hereof shall be unimpaired and shall remain in full force and effect to the fullest extent\npermitted by applicable law and (ii) the invalid or unenforceable term or provision shall be replaced by a term or provision that is valid and\nenforceable and that comes closest to expressing the Company’s intention with respect to such invalid or unenforceable term or provision.\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 7\nEntire Agreement\nThis Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements, arrangements\nand understandings relating to the matters provided for herein. This Agreement may not be amended or modified in any manner nor may any of its\nprovisions be waived except by written amendment executed by the parties. A waiver, amendment or modification shall only be effective if (a) it is\nin writing and signed by the Company and you, (b) it specifically refers to this Agreement and (c) it specifically states that the Company and/or you,\nas the case may be, is waiving or amending its rights hereunder. Any such amendment, modification or waiver shall be effective only in the specific\ninstance and for the purpose for which it was given. This Agreement shall, except as otherwise specifically set forth herein, cease to be effective two\nyears after the date hereof.\nCounterparts\nFor the convenience of the parties hereto, any number of counterparts of this Agreement may be executed by the parties hereto, each of which shall\nbe an original instrument and all of which taken together shall constitute one and the same Agreement. Delivery of a signed counterpart of this\nAgreement by e-mail or facsimile transmission shall constitute valid and sufficient delivery thereof.\nThis Agreement is being delivered to you in duplicate. Please execute and return one copy of this letter agreement which will constitute your\nagreement with respect to the subject matter of this Agreement.\nVery truly yours.\nICx Technologies, Inc.\nBy: /s/ James Luby\nName: James Luby\nTitle: Secretary\nFLIR Systems, Inc.\nMarch 17, 2010\nPage 8\nConfirmed and Agreed to as of\nthe date first written above:\nFLIR Systems, Inc.\nBy: /s/ William W. Davis\nName: William W. Davis\nTitle: Senior Vice President, General Counsel &\nSecretary
+4190435db84ff3f203d1348a588786cb.pdf	effective_date jurisdiction party	EX-10 .3 4 a18-8439_1ex10d3.htm EX-10.3\nExhibit 10.3\nEMPLOYMENT NON-COMPETE , NON -SOLICIT AND CONFIDENTIALITY AGREEMENT\nThis EMPLOYMENT NON-COMPETE, NON -SOLICIT AND CONFIDENTIALITY AGREEMENT (“Agreement”) is entered into between Citi Trends, Inc. , including its subsidiaries, affiliates, divisions, successors,\nand related entities (“Company”), and Stuart Clifford (“Employee”), effective as of the date signed by Employee below.\nFor and in consideration of the mutual covenants and agreements contained herein, including, but not limited to, Company agreeing to employ and/or continuing to employ Employee, and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree:\n1.\nEmployment; Scope of Services. Company shall employ and/or continue to employ Employee, and Employee shall be\nemployed and/or continue to be employed by Company, as Senior Vice President & Chief Financial Officer. Employee shall use\nhis/her best efforts and shall devote his/her full time, attention, knowledge and skills to the faithful performance of his/her duties and\nresponsibilities as a Company employee. Employee shall have such authority and such other duties and responsibilities as assigned\nby the Board of Directors. Employee shall comply with Company’s policies and procedures, shall conduct him/herself as an ethical\nbusiness professional, and shall comply with federal, state and local laws.\n2.\nAt-Will Employment. Nothing in this Agreement alters the at-will employment relationship between Employee and\nCompany or limits Company’s right to alter or modify Employee’s job title or job duties and responsibilities any time at Company’s\ndiscretion. Employment with Company is “at-will” which means that either Employee or Company may terminate the employment\nrelationship at any time, with or without notice, with or without cause. The date of Employee’s cessation of employment for any\nreason is the “Separation Date.”\n3.\nConfidentiality.\n(a)\nEmployee acknowledges and agrees that: (1) the retail sale of value-priced/off-price family apparel is an extremely\ncompetitive industry; (2) Company has an ongoing strategy for expansion of its business in the United States; (3) Company’s major\ncompetitors operate throughout the United States and some internationally; and (4) because of Employee’s position as Senior Vice\nPresident & Chief Financial Officer, he/she will have access to, knowledge of, and be entrusted with, highly sensitive and\ncompetitive Confidential Information and Trade Secrets (as defined in subsection (b) below) of Company, including without\nlimitation information regarding sales margins, purchasing and pricing strategies, marketing strategies, vendors and suppliers, plans\nfor expansion and placement of stores, and also specific information about Company’s districts and stores, such as staffing, budgets,\nprofits and the financial success of individual districts and stores, which Company has developed and will continue to develop and\nthe disclosure or use of which would cause Company great and irreparable harm.\n(b)\nAs used herein, “Confidential Information” means and includes any and all Company data and information in\nany form whatsoever (tangible or intangible) which: (1) relates to the business of Company, irrespective of whether the data or\ninformation constitutes a “trade\nsecret” (as defined below); (2) is disclosed to Employee or which Employee obtains or becomes aware of as a consequence of Employee’s relationship with Company; (3) has value to Company; and (4) is not generally known to\nCompany’s competitors. “Confidential Information” includes (but is not limited to) technical or sales data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data and statements,\nfinancial plans and strategies, product plans, sales or advertising information and plans, marketing information and plans, pricing information, the identity or lists of employees, vendors and suppliers of Company, and confidential or\nproprietary information of such employees, vendors and suppliers. “ Trade Secret” means any and all information, knowledge or data in any form whatsoever, tangible or intangible, that is considered a trade secret under applicable law.\nEmployee acknowledges and agrees that all Confidential Information and Trade Secrets are and remain the sole and exclusive property of Company.\n(c)\nEmployee agrees that he/she shall hold all Confidential Information and Trade Secrets in strictest confidence, and\nthat he/she shall protect such Confidential Information and Trade Secrets from disclosure by or to others. Employee further agrees\nthat he/she shall not at any time (except as authorized by Company in connection with Employee’s duties and responsibilities as an\nemployee): (1) disclose, publish, transfer, or communicate Confidential Information or Trade Secrets to any person or entity, other\nthan authorized Company personnel; (2) use or reproduce Confidential Information or Trade Secrets for personal benefit or for any\npurpose or reason other than furthering the legitimate business interest of Company within the scope of Employee’s duties with\nCompany; or (3) remove or transfer any Confidential Information or Trade Secrets from Company’s premises or systems (by any\nmethod or means) except for use in Company’s business and consistent with Employee’s duties with the Company. The foregoing\ncovenants and obligations are in addition to, and do not limit, any common law or statutory rights and/or protections afforded to\nCompany.\n(d)\nEmployee acknowledges that Company has provided or will provide Employee with Company property, including\nwithout limitation, employee handbooks, policy manuals, price lists, financial reports, and vendor and supplier information, among\nother items. Upon the Separation Date, or upon the request of Company, Employee shall immediately deliver to Company all\nproperty belonging to Company, including without limitation, all Confidential Information, Trade Secrets, and any property related to\nCompany, whether in electronic or other format, as well as any copies thereof, then in Employee’s custody, control, or possession.\nUpon the Separation Date, Employee shall provide Company with a declaration certifying that all Confidential Information and any\nother Company property have been returned to Company, that Employee has not kept any copies of such items or distributed such\nitems to any third party, and that Employee has otherwise complied with the terms of Section 3 of this Agreement.\n(e)\nEmployee shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure\nof a trade secret (as defined in section 1839 of title 18, United States Code) that (A) is made (i) in confidence to a federal, state, or\nlocal government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a\nsuspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is\nmade under seal. If Employee files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Employee\nmay disclose the trade secret to the attorney of Employee and use the trade secret information in the court\n2\nproceeding if Employee (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except as permitted by court order.\n4.\nCovenant Not to Compete. Employee acknowledges and agrees that Company has invested a great deal of time and money\nin developing relationships with its employees, customers, and “Merchandise Vendors” (as defined below). Employee further\nacknowledges and agrees that in rendering services to Company, Employee has been, will be and will continue to be exposed to and\nlearn much information about Company’s business, including valuable Confidential Information and Trade Secrets, the Company’s\nemployees, and the Company’s “Merchandise Vendors,” to which Employee would not have access if not for Employee’s\nemployment with Company and which it would be unfair to disclose to others, or to use to Company’s disadvantage.\nEmployee acknowledges and agrees that the restrictions contained in this Agreement are necessary and reasonable to protect Company’s legitimate business interests in its Trade Secrets, valuable Confidential Information and relationships\nand goodwill with its employees, customers, and “Merchandising Vendors.” Employee further acknowledges that Employee’s skills, education and training qualify Employee to work and obtain employment which does not violate this\nAgreement and that the restrictions in this Agreement have been crafted as narrowly as reasonably possible to protect Company’s legitimate business interests in its Trade Secrets, valuable Confidential Information and relationships and\ngoodwill with its employees, customers, and “Merchandising Vendors.”\nIn light of the foregoing, Employee agrees that he/she will not, at any point during his/her employment with Company, work for or engage or participate in any business, enterprise, or endeavor that in any way competes with any aspect of\nCompany’s business or that otherwise conflicts with Company’s interests. In addition, for a period of one (1) year following the Separation Date, and regardless of the reason for separation, Employee shall not, within any geographic area\nin which Company does business at any time during Employee’s employment with Company: (a) become employed by or work for a “Competitor” (as defined below) in any position or capacity involving duties and/or responsibilities\nwhich are the same as or substantially similar to any of the duties and/or responsibilities Employee had with and/or performed for Company; or (b) perform or provide any services which are the same as or substantially similar to any of\nthe services which Employee performed or provided for the Company, for or on behalf of any Competitor. For purposes of this Section 4, the term “Competitor” shall mean only the following businesses, commonly known as: Cato, TJX\n(including without limitation TJMAXX and Marshalls), Burlington Stores, Gabe’s/Rugged Wearhouse, and Ross Stores.\n5.\nCovenant Not to Solicit. During Employee’s employment with Company, and for a period of eighteen (18) months\nfollowing the Separation Date, and regardless of the reason for separation, Employee agrees not to solicit any “Merchandise\nVendors” (as defined below) for the purpose of obtaining merchandise and/or inventory for or on behalf of any “Competitor” (as\ndefined in Section 4 of this Agreement). As used herein, “Merchandise Vendors” means and includes any person or entity who/that\nhas been a vendor or supplier of merchandise and/or inventory to Company during the eighteen (18) months immediately preceding\nthe Separation Date or to whom/which Company is actively soliciting for the provision of merchandise and/or\n3\ninventory, and with whom/which Employee had “material contact.” For purposes of this agreement, “material contact” means contact between Employee and an existing or prospective Merchandise Vendor: (a) with whom Employee\ndealt on behalf of Company within two years prior to the date of Employee’s termination; (b) whose dealings with Company were coordinated or supervised by Employee within two years prior to the date of Employee’s termination;\n(c) about whom Employee obtained Confidential Information in the ordinary course of business as a result of Employee’s association with Company within two years prior to the date of Employee’s termination; or, (d) who provides\nmerchandise and/or inventory to Company, the provision of which results or resulted in compensation, commissions, or earnings for Employee within two years prior to the date of Employee’s termination.\nEmployee specifically acknowledges and agrees that, as Senior Vice President & Chief Financial Officer, his/her duties include, without limitation, establishing purchasing and pricing strategies and policies, managing sales margins,\ninvolvement in establishing and maintaining vendor relationships, and having contact with and confidential and/or proprietary information regarding Merchandise Vendors.\n6.\nCovenant Not to Recruit Personnel. During Employee’s employment with Company, and for a period of two (2) years\nfollowing the Separation Date, and regardless of the reason for separation, Employee will not: (a) recruit or solicit to hire or assist\nothers in recruiting or soliciting to hire, any employee or independent contractor of Company; or (b) cause or assist others in causing\nany employee or independent contractor of Company to terminate his/her relationship with Company.\n7.\nSeverability. If any provision of this Agreement is held invalid, illegal, or otherwise unenforceable, in whole or in part, the\nremaining provisions, and any partially enforceable provisions to the extent enforceable, shall be binding and remain in full force and\neffect. Further, each particular prohibition or restriction set forth in any Section of this Agreement shall be deemed a severable unit,\nand if any court of competent jurisdiction determines that any portion of such prohibition or restriction is against the policy of the law\nin any respect, but such restraint, considered as a whole, is not so clearly unreasonable and overreaching in its terms as to be\nunconscionable, the court shall enforce so much of such restraint as is determined to be reasonably necessary to protect the legitimate\ninterests of Company. Employee and Company expressly agree that, should any court of competent jurisdiction find or determine\nthat any of the covenants contained herein are overly-broad or otherwise unenforceable, the court may “blue-pencil,” modify, and/or\nreform any such covenant (in whole or in part) so as to cure the over-breadth or to otherwise render the covenant enforceable.\n8.\nSurvival of Covenants. All rights and covenants contained in Sections 3, 4, 5, and 6 of this Agreement, and all remedies\nrelating thereto, shall survive the termination of this Agreement for any reason.\n9.\nBinding Effect. The covenants, terms, and provisions set forth in this Agreement shall inure to the benefit of and be\nenforceable by Company and its successors, assigns, and successors-in-interest, including, without limitation, any corporation,\npartnership, or other entity with which Company may be merged or by which it may be acquired. Employee may not assign\nEmployee’s rights or obligations under this Agreement to any other party.\n4\n10.\nGoverning Law. All matters affecting this Agreement, including the validity thereof, are to be subject to, and interpreted\nand construed in accordance with, the laws of the State of Georgia applicable to contracts executed in and to be performed in that\nState.\n11.\nNo Interference with Rights. Employee understands, agrees and acknowledges that nothing contained in this Agreement\nwill prevent Employee from filing a charge or complaint with, reporting possible violations of any law or regulation, making\ndisclosures to, and/or participating in any investigation or proceeding conducted by, the National Labor Relations Board, Equal\nEmployment Opportunity Commission, the Securities and Exchange Commission, and/or any governmental authority charged with\nthe enforcement of any laws.\n12.\nAcknowledgment of Reasonableness/Remedies/Enforcement.\n(a)\nEmployee acknowledges that: (1) Company has valid interests to protect pursuant to Sections 3, 4, 5, and 6 of this\nAgreement; (2) the breach of the provisions of Sections 3, 4, 5, or 6 of this Agreement would result in irreparable injury and\npermanent damage to Company; and (3) such restrictions are reasonable and necessary to protect the interests of Company, are\ncritical to the success of Company’s business, and do not cause undue hardship on Employee.\n(b)\nEmployee agrees that determining damages in the event of a breach of Sections 3, 4, 5, or 6 by Employee would be\ndifficult and that money damages alone would be an inadequate remedy for the injuries and damages which would be suffered by\nCompany from such breach. Therefore, Employee agrees that Company shall be entitled (in addition to any other remedies it may\nhave under this Agreement, at law, or otherwise) to immediate injunctive and other equitable relief to prevent or curtail any such\nbreach or threatened breach by Employee. Employee and Company waive any requirement that a bond or any other security be\nposted. Nothing in this Agreement shall prohibit Company from seeking or recovering any legal or monetary damages to which it\nmay be entitled if Employee breaches any provision in this Agreement.\n(c)\nIn the event Employee breaches this Agreement, Employee shall be liable to Company for all costs of\nenforcement, including attorneys’ fees and court costs, in addition to all other damages and redress available to Company in equity or\nin law.\n13.\nMiscellaneous. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior\ncontracts, agreements, or understandings between the parties which may have been entered into by Company and Employee relating\nto the subject matter hereof (including, without limitation, the Prior Confidentiality Agreement), except for any severance agreements\nor certain restricted stock award and stock option agreements, which are to remain in full force and effect. This Agreement may not\nbe amended or modified in any manner except by an instrument in writing signed by both Company and Employee. The failure of\neither party to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of any such\nprovision or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement\nshall be held to be a waiver of any other or subsequent breach. All remedies are cumulative, including the right of either party to seek\nequitable relief in addition to money damages.\n5\nEMPLOYEE ACKNOWLEDGES AND AGREES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND KNOWS AND UNDERSTANDS ITS CONTENTS, THAT HE/SHE ENTERS INTO THIS\nAGREEMENT KNOWINGLY AND VOLUNTARILY, AND THAT HE/SHE INDICATES HIS/HER CONSENT BY SIGNING THIS FINAL PAGE.\n(SIGNATURES TO FOLLOW ON NEXT PAGE)\n6\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the day and year set forth below.\nCiti Trends, Inc.\n/s/ Stuart Clifford\nEmployee Signature\nBy:\n/s/ Bruce D. Smith\nDate:\n3/15/2018\nBruce D. Smith\nChief Executive Officer\nEmployee Residence Address:\nDate:\n3/15/2018\n7	EX-10.3 4 a18-8439_1eX10d3.htm EX-10.3\nExhibit 10.3\nEMPLOYMENT NON-COMPETE, NON-SOLICIT AND CONFIDENTIALITY AGREEMENT\n \nThis EMPLOY MENT NON-COMPETE, NON-SOLICIT AND CONFIDENTIALITY AG REEMENT ("A ggement”) is entered into between Citi Trends, Inc., including its subsidiaries, affiliates, divisions, successors,\nand related entities ("Company"), and Stuart Clifford ("Employee"), effective as of the date signed by Employee below.\nFor and in consideration of the mutual covenants and agreements contained herein, including, but not limited to, Company agreeing to employ and/or continuing to employ Employee, and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree:\n1. Employment; Scope of Services. Company shall employ and/or continue to employ Employee, and Employee shall be\nemployed and/or continue to be employed by Company, as Senior Vice President & Chief Financial Officer. Employee shall use\nhis/her best efforts and shall devote his/her full time, attention, knowledge and skills to the faithful performance of his/her duties and\nresponsibilities as a Company employee. Employee shall have such authority and such other duties and responsibilities as assigned\nby the Board of Directors. Employee shall comply with Company' 5 policies and procedures, shall conduct him/herself as an ethical\nbusiness professional, and shall comply with federal, state and local laws.\n2. At—Will Employment. Nothing in this Agreement alters the at-will employment relationship between Employee and\nCompany or limits Company's right to alter or modify Employee’s job title or job duties and responsibilities any time at Company's\ndiscretion. Employment with Company is ”at-will” which means that either Employee or Company may terminate the employment\nrelationship at any time, with or without notice, with or without cause. The date of Employee' 5 cessation of employment for any\nreason is the ”Separation Date. ”\n3. Confidentiality.\n(a) Employee acknowledges and agrees that: (1) the retail sale of valuepriced/off—price family apparel is an extremely\ncompetitive industry; (2) Company has an ongoing strategy for expansion of its business in the United States; (3) Company’s major\ncompetitors operate throughout the United States and some internationally; and (4) because of Employee' 5 position as Senior Vice\nPresident & Chief Financial Officer, he/she will have access to, knowledge of, and be entrusted with, highly sensitive and\ncompetitive Confidential Information and Trade Secrets (as defined in subsection (b) below) of Company, including without\nlimitation information regarding sales margins, purchasing and pricing strategies, marketing strategies, vendors and suppliers, plans\nfor expansion and placement of stores, and also specific information about Company' 5 districts and stores, such as staffing, budgets,\nprofits and the financial success of individual districts and stores, which Company has developed and will continue to develop and\nthe disclosure or use of which would cause Company great and irreparable harm.\n(b) As used herein, ”Confidential Information” means and includes any and all Company data and information in\nany form whatsoever (tangible or intangible) which: (1) relates to the business of Company, irrespective of whether the data or\ninformation constitutes a ”trade\n \nsecret" (as defined below); (2) is disclosed to Employee or which Employee obtains or becomes aware of as a consequence of Employee' 5 relationship with Company; (3) has value to Company; and (4) is not generally known to\nCompany's competitors. "Confidential Information" includes (but is not limited to) technical or sales data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data and statements,\nfinancial plans and strategies, product plans, sales or advertising information and plans, marketing information and plans, pricing information, the identity or lists of employees, vendors and suppliers of Company, and confidential or\nproprietary information of such employees, vendors and suppliers. "Trade Secret" means any and all information, knowledge or data in any form whatsoever, tangible or intangible, that is considered a trade secret under applicable law.\nEmployee acknowledges and agrees that all Confidential Information and Trade Secrets are and remain the sole and exclusive property of Company.\n(c) Employee agrees that he/she shall hold all Confidential Information and Trade Secrets in strictest confidence, and\nthat he/she shall protect such Confidential Information and Trade Secrets from disclosure by or to others. Employee further agrees\nthat he/she shall not at any time (except as authorized by Company in connection with Employee' 5 duties and responsibilities as an\nemployee): (1) disclose, publish, transfer, or communicate Confidential Information or Trade Secrets to any person or entity, other\nthan authorized Company personnel; (2) use or reproduce Confidential Information or Trade Secrets for personal benefit or for any\npurpose or reason other than furthering the legitimate business interest of Company within the scope of Employee' s duties with\nCompany; or (3) remove or transfer any Confidential Information or Trade Secrets from Company' s premises or systems (by any\nmethod or means) except for use in Company' s business and consistent with Employee’ s duties with the Company. The foregoing\ncovenants and obligations are in addition to, and do not limit, any common law or statutory rights and/or protections afforded to\nCompany.\n(d) Employee acknowledges that Company has provided or will provide Employee with Company property, including\nwithout limitation, employee handbooks, policy manuals, price lists, financial reports, and vendor and supplier information, among\nother items. Upon the Separation Date, or upon the request of Company, Employee shall immediately deliver to Company all\nproperty belonging to Company, including without limitation, all Confidential Information, Trade Secrets, and any property related to\nCompany, whether in electronic or other format, as well as any copies thereof, then in Employee’s custody, control, or possession.\nUpon the Separation Date, Employee shall provide Company with a declaration certifying that all Confidential Information and any\nother Company property have been returned to Company, that Employee has not kept any copies of such items or distributed such\nitems to any third party, and that Employee has otherwise complied with the terms of Section 3 of this Agreement.\nre) Employee shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure\nof a trade secret (as defined in section 1839 of title 18, United States Code) that (A) is made (i) in confidence to a federal, state, or\nlocal government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a\nsuspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is\nmade under seal. If Employee files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Employee\nmay disclose the trade secret to the attorney of Employee and use the trade secret information in the court\n \nproceeding if Employee (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except as permitted by court order.\n4. Covenant Not to Compete. Employee acknowledges and agrees that Company has invested a great deal of time and money\nin developing relationships with its employees, customers, and ”Merchandise Vendors" (as defined below). Employee further\nacknowledges and agrees that in rendering services to Company, Employee has been, will be and will continue to be exposed to and\nlearn much information about Company' s business, including valuable Confidential Information and Trade Secrets, the Company's\nemployees, and the Company' s ”Merchandise Vendors,” to which Employee would not have access if not for Employee' s\nemployment with Company and which it would be unfair to disclose to others, or to use to Company' s disadvantage.\nEmployee acknowledges and agrees that the restrictions contained in this Agreement are necessary and reasonable to protect Company' 5 legitimate business interests in its Trade Secreb, valuable Confidential Information and relationships\nand goodwill with its employees, customers, and "Merchandising Vendors.” Employee further acknowledges that Employee's skills, education and training qualify Employee to work and ohmin employment which does not violate this\nAgreement and that the restrictions in this Agreement have been crafted as narrowly as reasonably possible to protect Company' 5 legitimate business interests in its Trade Secreb, valuable Confidential Information and relationships and\ngoodwill with its employees, customers, and "Merchandising Vendors.”\nIn light of the foregoing, Employee agrees that he/she will not, at any point during his/her employment with Company, work for or engage or participate in any business, enterprise, or endeavor that in any way competes with any aspect of\nCompany's business or that otherwise conflicts with Company’s interests. In addition, for a period of one (1) year following the Separation Date, and regardless of the reason for separation, Employee shall not, within any geographic area\nin which Company does business at any time during Employee' 5 employment with Company: (a) become employed by or work for a ”Competitor” (as defined below) in any position or capacity involving duties and/or responsibilities\nwhich are the same as or substantially similar to any of the duties and/or responsibilities Employee had with and/or performed for Company; or (b) perform or provide any services which are the same as or substantially similar to any of\nthe services which Employee performed or provided for the Company, for or on behalf of any Competitor. For purposes of this Section 4, the terrrr "C ompetitor” shall mean only the following businesses, commonly known as: Cato, TJX\n(including without limitation TJMAXX and Marshalls), Burlington Stores, Gabe' s/Rugged Wearhouse, and Ross Stores.\n5. Covenant Not to Solicit. During Employee’s employment with Company, and for a period of eighteen (18) months\nfollowing the Separation Date, and regardless of the reason for separation, Employee agrees not to solicit any ”Merchandise\nVendors" (as defined below) for the purpose of obtaining merchandise and/or inventory for or on behalf of any ”Competitor” (as\ndefined in Section 4 of this Agreement). As used herein, ”Merchandise Vendors” means and includes any person or entity who/that\nhas been a vendor or supplier of merchandise and/or inventory to Company during the eighteen (18) months immediately preceding\nthe Separation Date or to whom/which Company is actively soliciting for the provision of merchandise and/or\ninventory, and with whom/which Employee had "material contact,” For purposes of this agreement, “material contact" means contact between Employee and an existing or prospective Merchandise Vendor: (a) with whom Employee\ndealt on behalf of Company within two years prior to the date of Employee's termination; (b) whose dealings with Company were coordinated or supervised by Employee within two years prior to the date of Employee' 5 termination;\nto) about whom Employee obtained Confidential Information in the ordinary course of business as a result of Employee's association with Company within two years prior to the date of Employee’s termination; or, (d) who provides\nmerchandise and/or inventory to Company, the provision of which results or resulted in compensation, commissions, or earnings for Employee within two years prior to the date of Employee’s termination.\nEmployee specifically acknowledges and agrees that, as SeniorVice President & Chief Financial Officer, his/her duties include, without limitation, establishing purchasing and pricing strategies and policies, managing sales margins,\ninvolvement in establishing and maintaining vendor relationships, and having contact with and confidential and/or proprietary information regarding Merchandise Vendors.\ns. Covenant Not to Recruit Personnel. During Employee' 5 employment with Company, and for a period of two (2) years\nfollowing the Separation Date, and regardless of the reason for separation, Employee will not: (a) recruit or solicit to hire or assist\nothers in recruiting or soliciting to hire, any employee or independent contractor of Company; or (b) cause or assist others in causing\nany employee or independent contractor of Company to terminate his/her relationship with Company.\n7. Severability. If any provision of this Agreement is held invalid, illegal, or otherwise unenforceable, in whole or in part, the\nremaining provisions, and any partially enforceable provisions to the extent enforceable, shall be binding and remain in full force and\neffect. Further, each particular prohibition or restriction set forth in any Section of this Agreement shall be deemed a severable unit,\nand if any court of competent jurisdiction determines that any portion of such prohibition or restriction is against the policy of the law\nin any respect, but such restraint, considered as a whole, is not so clearly unreasonable and overreaching in its terms as to be\nunconscionable, the court shall enforce so much of such restraint as is determined to be reasonably necessary to protect the legitimate\ninterests of Company. Employee and Company expressly agree that, should any court of competent jurisdiction find or determine\nthat any of the covenants contained herein are overly-broad or otherwise unenforceable, the court may ”blue-pencil," modify, and/or\nreform any such covenant (in whole or in part) so as to cure the over-breadth or to otherwise render the covenant enforceable.\n3. Survival of Covenants. All rights and covenants contained in Sections 3, 4, 5, and 6 of this Agreement, and all remedies\nrelating thereto, shall survive the termination of this Agreement for any reason.\n9. Binding Effect. The covenants, terms, and provisions set forth in this Agreement shall inure to the benefit of and be\nenforceable by Company and its successors, assigns, and successors-in-interest, including, without limitation, any corporation,\npartnership, or other entity with which Company may be merged or by which it may be acquired. Employee may not assign\nEmployee' 5 rights or obligations under this Agreement to any other party.\n \n10, Governing Law. All matters affecting this Agreement, including the validity thereof, are to be subject to, and interpreted\nand construed in accordance with, the laws of the State of Georgia applicable to contracts executed in and to be performed in that\nState.\n11. No Interference with Rights. Employee understands, agrees and acknowledges that nothing contained in this A greement\nwill prevent Employee from filing a charge or complaint with, reporting possible violations of any law or regulation, making\ndisclosures to, and/or participating in any investigation or proceeding conducted by, the National Labor Relations Board, Equal\nEmployment Opportunity Commission, the Securities and Exchange Commission, and/or any governmental authority charged with\nthe enforcement of any laws.\n12, Acknowledgment of Reasonableness/Remedies/Enforcement.\n(a) Employee acknowledges that: (1) Company has valid interests to protect pursuant to Sections 3, 4, 5, and 6 of this\nAgreement; (2) the breach of the provisions of Sections 3, 4, 5, or 6 of this Agreement would result in irreparable injury and\npermanent damage to Company; and (3) such restrictions are reasonable and necessary to protect the interests of Company, are\ncritical to the success of Company's business, and do not cause undue hardship on Employee.\n(b) Employee agrees that determining damages in the event of a breach of Sections 3, 4, 5, or 6 by Employee would be\ndifficult and that money damages alone would be an inadequate remedy for the injuries and damages which would be suffered by\nCompany from such breach. Therefore, Employee agrees that Company shall be entitled (in addition to any other remedies it may\nhave under this Agreement, at law, or otherwise) to immediate injunctive and other equitable relief to prevent or curtail any such\nbreach or threatened breach by Employee. Employee and Company waive any requirement that a bond or any other security be\nposted. Nothing in this Agreement shall prohibit Company from seeking or recovering any legal or monetary damages to which it\nmay be entitled if Employee breaches any provision in this Agreement.\n[a In the event Employee breaches this Agreement, Employee shall be liable to Company for all costs of\nenforcement, including attorneys’ fees and court costs, in addition to all other damages and redress available to Company in equity or\nin law.\n13. Miscellaneous. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior\ncontracts, agreements, or understandings between the parties which may have been entered into by Company and Employee relating\nto the subject matter hereof (including, without limitation, the Prior Confidentiality Agreement), except for any severance agreements\nor certain restricted stock award and stock option agreements, which are to remain in full force and effect. This Agreement may not\nbe amended or modified in any manner except by an instrument in writing signed by both Company and Employee. The failure of\neither party to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of any such\nprovision or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement\nshall be held to be a waiver of any other or subsequent breach. All remedies are cumulative, including the right of either party to seek\nequitable relief in addition to money damages.\n \nEMPLOYEE ACKNOWLEDGES AND AGREES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND KNOWS AND UNDERSTANDS ITS CONTENTS, THAT HE/SHE ENTERS INTO THIS\nAGREEMENT KNOWINGLY AND VOLUNTARILY, AND THAT HE/SHE INDICATES HIS/HER CONSENT BY SIGNING THIS FINAL PAGE.\n(SIGNATURES TO FOLLOW ON NEXT PAGE)\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the day and year set forth below.\nCiti Trends, Inc. /s/ Stuart Clifford\nyer re\nBy: /s/ Bruce D. Smith Date: 3/15/2018\nBruce D. Smith—\nChief Executive Officer\nEmployee Residence Address:\nDate: 3/15/2018	EX-10.3 a18-8439lex10d3.htm EX-10.3\nExhibit 10.3\nEMPLOYMENT NON-COMPETE NON-SOLICIT AND CONFIDENTIALITY AGREEMENT\nThis EMPLOY MENT NON-COMPETE, NON -SOLICIT AND CONFIDENTIALITY AGREEMENT ("Agreement") is entered into between Citi Trends, Inc., including its subsidiaries, affiliates, divisions, successors,\nand related entities ("Company") and Stuar Clifford ("Employee") effective as of the date signed by Employee below.\nFor and in consideration of the mutual covenants and agreements contained herein, including, but not limited to, Company agreeing to employ and/or continuing to employ Employee, and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree:\n1.\nEmployment; Scope of Services. Company shall employ and/or continue to employ Employee, and Employee shall be\nemployed and/or continue to be employed by Company, as Senior Vice President & Chief Financial Officer. Employee shall use\nhis/her best efforts and shall devote his/her full time, attention, knowledge and skills to the faithful performance of his/her duties and\nresponsibilities as a Company employee. Employee shall have such authority and such other duties and responsibilities as assigned\nby the Board of Directors. Employee shall comply with Company's policies and procedures, shall conduct him/herself as an ethical\nbusiness professional, and shall comply with federal, state and local laws.\n2.\nAt-Will Employment. Nothing in this A greement alters the at-will employment relationship between Employee and\nCompany or limits Company's right to alter or modify Employee's job title or job duties and responsibilities any time at Company's\ndiscretion. Employment with Company is at-will" which means that either Employee or Company may terminate the employment\nrelationship at any time, with or without notice, with or without cause. The date of Employee's cessation of employment for any\nreason is the "Separation Date."\n3.\nConfidentiality.\n(a)\nEmployee acknowledges and agrees that: (1) the retail sale of value-priced/off-price family apparel is an extremely\ncompetitive industry; (2) Company has an ongoing strategy for expansion of its business in the United States; (3) Company's major\ncompetitors operate throughout the United States and some internationally; and (4) because of Employee's position as Senior Vice\nPresident & Chief Financial Officer, he/she will have access to, knowledge of, and be entrusted with, highly sensitive and\ncompetitive Confidential Information and Trade Secrets (as defined in subsection (b) below) of Company, including without\nlimitation information regarding sales margins, purchasing and pricing strategies, marketing strategies, vendors and suppliers, plans\nfor expansion and placement of stores, and also specific information about Company's districts and stores, such as staffing, budgets,\nprofits and the financial success of individual districts and stores, which Company has developed and will continue to develop and\nthe disclosure or use of which would cause Company great and irreparable harm.\n(b)\nAs used herein, "Confidential Information" means and includes any and all Company data and information in\nany form whatsoever (tangible or intangible) which: (1) relates to the business of Company, irrespective of whether the data or\ninformation constitutes a "trade\nsecret (as defined below); (2) is disclosed to Employee or which Employee obtains or becomes aware of as a consequence of Employee's relationship with Company; (3) has value to Company; and (4) is not generally known\nto\nCompany's competitors. "Confidential Information" includes (but is not limited to) technical or sales data, formulas, patterns, compilations, programs, devices methods, techniques, drawings, processes, financial data and statements,\nfinancial plans and strategies, product plans, sales or advertising information and plans, marketing information and plans, pricing information, the identity or lists of employees, vendors and suppliers of Company, and confidential or\nproprietary information of such employees, vendors and suppliers. "Trade Secret" means any and all information, knowledge or data in any form whatsoever, tangible or intangible, that is considered a trade secret under applicable law.\nEmployee acknowledges and agrees that all Confidential Information and Trade Secrets are and remain the sole and exclusive property of Company.\n(c)\nEmployee agrees that he/she shall hold all Confidentia Information and Trade Secrets in strictest confidence, and\nthat he/she shall protect such Confidential Information and Trade Secrets from disclosure by or to others. Employee further agrees\nthat he/she shall not at any time (except as authorized by Company in connection with Employee's duties and responsibilities as an\nemployee): (1) disclose, publish, transfer, or communicate Confidentia Inforation or Trade Secrets to any person or entity, other\nthan authorized Company personnel; (2) use or reproduce Confidential Information or Trade Secrets for personal benefit or for any\npurpose or reason other than furthering the legitimate business interest of Company within the scope of Employee's duties with\nCompany; or (3) remove or transfer any Confidentia Information or Trade Secrets from Company's premises or systems (by any\nmethod or means) except for use in Company's business and consistent with Employee's duties with the Company. The foregoing\ncovenants and obligations are in addition to, and do not limit, any common law or statutory rights and/or protections afforded to\nCompany.\n(d)\nEmployee acknowledges that Company has provided or will provide Employee with Company property, including\nwithout limitation, employee handbooks, policy manuals, price lists, financial reports, and vendor and supplier information, among\nother items. Upon the Separation Date, or upon the request of Company, Employee shall immediately deliver to Company all\nproperty belonging to Company, including without limitation, all Confidential Information, Trade Secrets, and any property related to\nCompany, whether in electronic or other format, as well as any copies thereof, then in Employee's custody, control, or possession.\nUpon the Separation Date, Employee shall provide Company with a declaration certifying that all Confidential Information and any\nother Company property have been returned to Company, that Employee has not kept any copies of such items or distributed such\nitems to any third party, and that Employee has otherwise complied with the terms of Section 3 of this A greement.\n(e)\nEmployee shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure\nof a trade secret (as defined in section 1839 of title 18, United States Code) that (A is made (i) in confidence to a federal, state, or\nlocal government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a\nsuspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is\nmade under seal. If Employee files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Employee\nmay disclose the trade secret to the attorney of Employee and use the trade secret information in the court\n2\nproceeding if Employee (A files any document containing the trade secret under seal and (B) does not disclose the trade secret, except as permitted by court order.\n4.\nCovenant Not to Compete. Employee acknowledges and agrees that Company has invested a great deal of time and money\nin developing relationships with its employees, customers, and "Merchandise Vendors" (as defined below). Employee further\nacknowledges and agrees that in rendering services to Company, Employee has been, will be and will continue to be exposed to and\nlearn much information about Company's business, including valuable Confidential Information and Trade Secrets, the Company's\nemployees, and the Company's "Merchandise Vendors," to which Employee would not have access if not for Employee's\nemployment with Company and which it would be unfair to disclose to others, or to use to Company's disadvantage.\nEmployee acknowledges and agrees tha the restrictions contained in this Agreement are necessary and reasonable to protect Company' legitimate business interests in its Trade Secrets, valuable Confidential Information and relationships\nand goodwill with its employees, customers, and "Merchandising Vendors." Employee further acknowledges that Employee's skills, education and training qualify Employee to work and obtain employment which does not violate this\ngreement and that the restrictions in this Agreement have been crafted as narrowly as reasonably possible to protect Company's legitimate business interests in its Trade Secrets, valuable Confidential Information and relationships and\ngoodwill with its employees, customers, and "Merchandising Vendors."\nIn light of the foregoing Employee agrees that he/she wil not, at any point during his/her employmen with Company, work for or engage or participate in any business, enterprise, or endeavor that in any way competes with any aspect of\nCompany's business or that otherwise conflicts with Company's interests. In addition, for period of one (1) year following the Separation Date, and regardless of the reason for separation, Employee shall not, within any geographic area\nin which Company does business at any time during Employee's employment with Company: (a) become employed by or work for "Competitor" (as defined below) in any position or capacity involving duties and/or responsibilities\nwhich are the same as or substantially similar to any of the duties and/or responsibilities Employee had with and/or performed for Company; or (b) perform or provide any services which are the same as or substantially similar to\nany\nof\nthe\nservices which Employee performed or provided for the Company, for or on behalf of any Competitor. For purposes of this Section 4, the term "Competitor" shall mean only the following businesses, commonly known as: Cato, TJX\n(including without limitation TJMAXX and Marshalls), Burlington Stores, Gabe s/Rugged w Vearhouse, and Ross Stores.\n5.\nCovenant Not to Solicit During Employee's employment with Company, and for a period of eighteen (18) months\nfollowing the Separation Date, and regardless of the reason for separation, Employee agrees not to solicit any "Merchandise\nVendors" (as defined below) for the purpose of obtaining merchandise and/or inventory for or on behalf of any "Competitor" (as\ndefined in Section 4 of this A greement). As used herein, "Merchandise Vendors" means and includes any person or entity who/that\nhas been a vendor or supplier of merchandise and/or inventory to Company during the eighteen (18) months immediately preceding\nthe Separation Date or to whom/which Company is actively soliciting for the provision of merchandise and/or\n3\ninventory, and with whom/which Employee had "material contact." For purposes of this agreement, "material contact means contact between Employee and an existing or prospective Merchandise Vendor: (a) with whom Employee\ndealt on behalf of Company within two years prior to the date of Employee's termination; (b) whose dealings with Company were coordinated or supervised by Employee within two years prior to the date of Employee's termination;\n(c) about whom Employee obtained Confidential Information in the ordinary course of business as a resul of Employee's association with Company within two years prior to the date of Employee' termination; or, (d) who provides\nmerchandise and/or inventory to Company, the provision of which results or resulted in compensation, commissions, or earnings for Employee within two years prior to the date of Employee's termination.\nEmployee specifically acknowledges and agrees that, as Senior Vice President & Chief Financial Officer, his/her duties include, without limitation, establishing purchasing and pricing strategies and policies, managing sales margins,\ninvolvement in establishing and maintaining vendor relationships, and having contact with and confidential and/or proprietary information regarding Merchandise Vendors.\n6.\nCovenant Not to Recruit Personnel. During Employee's employment with Company, and for a period of two (2) years\nfollowing the Separation Date, and regardless of the reason for separation, Employee will not: (a) recruit or solicit to hire or assist\nothers in recruiting or soliciting to hire, any employee or independent contractor of Company; or (b) cause or assist others in causing\nany employee or independent contractor of Company to terminate his/her relationship with Company.\n7.\nSeverability If any provision of this A greement is held invalid, illegal, or otherwise unenforceable, in whole or in part, the\nremaining provisions, and any partially enforceable provisions to the extent enforceable, shall be binding and remain in full force and\neffect. Further, each particular prohibition or restriction set forth in any Section of this A greement shall be deemed a severable unit,\nand if any court of competent jurisdiction determines that any portion of such prohibition or restriction is against the policy of the law\nin any respect, but such restraint, considered as a whole, is not so clearly unreasonable and overreaching in its terms as to be\nunconscionable, the court shall enforce so much of such restraint as is determined to be reasonably necessary to protect the legitimate\ninterests of Company. Employee and Company expressly agree that, should any court of competent jurisdiction find or determine\nthat any of the covenants contained herein are overly-broad or otherwise unenforceable, the court may "blue-pencil," modify, and/or\nreform any such covenant (in whole or in part) so as to cure the over-breadth or to otherwise render the covenant enforceable\n8.\nSurvival of Covenants. All rights and covenants contained in Sections 3, 4, 5, and 6 of this A greement, and all remedies\nrelating thereto, shall survive the termination of this greement for any reason.\n9.\nBinding Effect. The covenants, terms, and provisions set forth in this A greement shall inure to the benefit of and be\nenforceable by Company and its successors, assigns, and successors-in-interest including, without limitation, any corporation\npartnership, or other entity with which Company may be merged or by which it may be acquired. Employee may not assign\nEmployee's rights or obligations under this greement to any other party.\n4\n10.\nGoverning Law. All matters affecting this A greement, including the validity thereof, are to be subject to, and interpreted\nand construed in accordance with, the laws of the State of Georgia applicable to contracts executed in and to be performed in that\nState.\n11.\nNO Interference with Rights. Employee understands, agrees and acknowledges that nothing contained in this A greement\nwill prevent Employee from filing a charge or complaint with, reporting possible violations of any law or regulation, making\ndisclosures to, and/or participating in any investigation or proceeding conducted by, the National Labor Relations Board, Equal\nEmployment Opportunity Commission, the Securities and Exchange Commission, and/or any govermental authority charged with\nthe enforcement of any laws.\n12.\ncknowledgment of Reasonableness/Remedies/Enforcement\nEmployee acknowledges that: (1) Company has valid interests to protect pursuant to Sections 3, 4, 5, and 6 of this\nA greement; (2) the breach of the provisions of Sections 3, 4, 5, or 6 of this A greement would result in irreparable injury and\npermanent damage to Company; and (3) such restrictions are reasonable and necessary to protect the interests of Company, are\ncritical to the success of Company's business, and do not cause undue hardship on Employee.\n(b)\nEmployee agrees that determining damages in the event of a breach of Sections 3, 4, 5, or 6 by Employee would be\ndifficult and that money damages alone would be an inadequate remedy for the injuries and damages which would be suffered by\nCompany from such breach. Therefore, Employee agrees that Company shall be entitled (in addition to any other remedies it may\nhave under this A greement, at law, or otherwise) to immediate injunctive and other equitable relief to prevent or curtail any such\nbreach or threatened breach by Employee. Employee and Company waive any requirement that a bond or any other security be\nposted. Nothing in this A greement shall prohibit Company from seeking or recovering any legal or monetary damages to which it\nmay be entitled if Employee breaches any provision in this A greement.\n(c)\nIn the event Employee breaches this A greement, Employee shall be liable to Company for all costs of\nenforcement, including attorneys' fees and court costs, in addition to all other damages and redress available to Company in equity or\nin law.\n13.\nMiscellaneous. This A greement constitutes the entire agreement between the parties and supersedes any and all prior\ncontracts, agreements, or understandings between the parties which may have been entered into by Company and Employee relating\nto the subject matter hereof (including, without limitation, the Prior Confidentiality greement), except for any severance agreements\nor certain restricted stock award and stock option agreements, which are to remain in full force and effect. This greement may not\nbe amended or modified in any manner except by an instrument in writing signed by both Company and Employee. The failure of\neither party to enforce at any time any of the provisions of this A greement shall in no way be construed to be a waiver of any such\nprovision or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of this A greement\nshall be held to be a waiver of any other or subsequent breach. All remedies are cumulative, including the right of either party to seek\nequitable relief in addition to money damages.\n5\nEMPLOYEE ACKNOWLEDGES AND AGREES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND KNOWS AND UNDERSTANDS ITS CONTENTS, THAT HE/SHE ENTERS INTO THIS\nAGREEMENT KNOWINGLY AND VOLUNTARILY, AND THAT HE/SHE INDICATES HIS/HER CONSENT BY SIGNING THIS FINAL PAGE.\n(SIGNATURES TO FOLLOW ON NEXT PAGE)\n6\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the day and year set forth below.\nCiti Trends, Inc.\n/s/ Stuart Clifford\nEmproyee signature\nBy:\n/s/ Bruce D. Smith\nDate:\n3/15/2018\nBruce D. Smitn\nChief Executive Officer\nEmployee Residence Address:\nDate:\n3/15/2018\n7	EX-10 .3 4 a18-8439_1ex10d3.htm EX-10.3\nExhibit 10.3\nEMPLOYMENT NON-COMPETE , NON -SOLICIT AND CONFIDENTIALITY AGREEMENT\nThis EMPLOYMENT NON-COMPETE, NON -SOLICIT AND CONFIDENTIALITY AGREEMENT (“Agreement”) is entered into between Citi Trends, Inc. , including its subsidiaries, affiliates, divisions, successors,\nand related entities (“Company”), and Stuart Clifford (“Employee”), effective as of the date signed by Employee below.\nFor and in consideration of the mutual covenants and agreements contained herein, including, but not limited to, Company agreeing to employ and/or continuing to employ Employee, and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree:\n1.\nEmployment; Scope of Services. Company shall employ and/or continue to employ Employee, and Employee shall be\nemployed and/or continue to be employed by Company, as Senior Vice President & Chief Financial Officer. Employee shall use\nhis/her best efforts and shall devote his/her full time, attention, knowledge and skills to the faithful performance of his/her duties and\nresponsibilities as a Company employee. Employee shall have such authority and such other duties and responsibilities as assigned\nby the Board of Directors. Employee shall comply with Company’s policies and procedures, shall conduct him/herself as an ethical\nbusiness professional, and shall comply with federal, state and local laws.\n2.\nAt-Will Employment. Nothing in this Agreement alters the at-will employment relationship between Employee and\nCompany or limits Company’s right to alter or modify Employee’s job title or job duties and responsibilities any time at Company’s\ndiscretion. Employment with Company is “at-will” which means that either Employee or Company may terminate the employment\nrelationship at any time, with or without notice, with or without cause. The date of Employee’s cessation of employment for any\nreason is the “Separation Date.”\n3.\nConfidentiality.\n(a)\nEmployee acknowledges and agrees that: (1) the retail sale of value-priced/off-price family apparel is an extremely\ncompetitive industry; (2) Company has an ongoing strategy for expansion of its business in the United States; (3) Company’s major\ncompetitors operate throughout the United States and some internationally; and (4) because of Employee’s position as Senior Vice\nPresident & Chief Financial Officer, he/she will have access to, knowledge of, and be entrusted with, highly sensitive and\ncompetitive Confidential Information and Trade Secrets (as defined in subsection (b) below) of Company, including without\nlimitation information regarding sales margins, purchasing and pricing strategies, marketing strategies, vendors and suppliers, plans\nfor expansion and placement of stores, and also specific information about Company’s districts and stores, such as staffing, budgets,\nprofits and the financial success of individual districts and stores, which Company has developed and will continue to develop and\nthe disclosure or use of which would cause Company great and irreparable harm.\n(b)\nAs used herein, “Confidential Information” means and includes any and all Company data and information in\nany form whatsoever (tangible or intangible) which: (1) relates to the business of Company, irrespective of whether the data or\ninformation constitutes a “trade\nsecret” (as defined below); (2) is disclosed to Employee or which Employee obtains or becomes aware of as a consequence of Employee’s relationship with Company; (3) has value to Company; and (4) is not generally known to\nCompany’s competitors. “Confidential Information” includes (but is not limited to) technical or sales data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data and statements,\nfinancial plans and strategies, product plans, sales or advertising information and plans, marketing information and plans, pricing information, the identity or lists of employees, vendors and suppliers of Company, and confidential or\nproprietary information of such employees, vendors and suppliers. “ Trade Secret” means any and all information, knowledge or data in any form whatsoever, tangible or intangible, that is considered a trade secret under applicable law.\nEmployee acknowledges and agrees that all Confidential Information and Trade Secrets are and remain the sole and exclusive property of Company.\n(c)\nEmployee agrees that he/she shall hold all Confidential Information and Trade Secrets in strictest confidence, and\nthat he/she shall protect such Confidential Information and Trade Secrets from disclosure by or to others. Employee further agrees\nthat he/she shall not at any time (except as authorized by Company in connection with Employee’s duties and responsibilities as an\nemployee): (1) disclose, publish, transfer, or communicate Confidential Information or Trade Secrets to any person or entity, other\nthan authorized Company personnel; (2) use or reproduce Confidential Information or Trade Secrets for personal benefit or for any\npurpose or reason other than furthering the legitimate business interest of Company within the scope of Employee’s duties with\nCompany; or (3) remove or transfer any Confidential Information or Trade Secrets from Company’s premises or systems (by any\nmethod or means) except for use in Company’s business and consistent with Employee’s duties with the Company. The foregoing\ncovenants and obligations are in addition to, and do not limit, any common law or statutory rights and/or protections afforded to\nCompany.\n(d)\nEmployee acknowledges that Company has provided or will provide Employee with Company property, including\nwithout limitation, employee handbooks, policy manuals, price lists, financial reports, and vendor and supplier information, among\nother items. Upon the Separation Date, or upon the request of Company, Employee shall immediately deliver to Company all\nproperty belonging to Company, including without limitation, all Confidential Information, Trade Secrets, and any property related to\nCompany, whether in electronic or other format, as well as any copies thereof, then in Employee’s custody, control, or possession.\nUpon the Separation Date, Employee shall provide Company with a declaration certifying that all Confidential Information and any\nother Company property have been returned to Company, that Employee has not kept any copies of such items or distributed such\nitems to any third party, and that Employee has otherwise complied with the terms of Section 3 of this Agreement.\n(e)\nEmployee shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure\nof a trade secret (as defined in section 1839 of title 18, United States Code) that (A) is made (i) in confidence to a federal, state, or\nlocal government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a\nsuspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is\nmade under seal. If Employee files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Employee\nmay disclose the trade secret to the attorney of Employee and use the trade secret information in the court\n2\nproceeding if Employee (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except as permitted by court order.\n4.\nCovenant Not to Compete. Employee acknowledges and agrees that Company has invested a great deal of time and money\nin developing relationships with its employees, customers, and “Merchandise Vendors” (as defined below). Employee further\nacknowledges and agrees that in rendering services to Company, Employee has been, will be and will continue to be exposed to and\nlearn much information about Company’s business, including valuable Confidential Information and Trade Secrets, the Company’s\nemployees, and the Company’s “Merchandise Vendors,” to which Employee would not have access if not for Employee’s\nemployment with Company and which it would be unfair to disclose to others, or to use to Company’s disadvantage.\nEmployee acknowledges and agrees that the restrictions contained in this Agreement are necessary and reasonable to protect Company’s legitimate business interests in its Trade Secrets, valuable Confidential Information and relationships\nand goodwill with its employees, customers, and “Merchandising Vendors.” Employee further acknowledges that Employee’s skills, education and training qualify Employee to work and obtain employment which does not violate this\nAgreement and that the restrictions in this Agreement have been crafted as narrowly as reasonably possible to protect Company’s legitimate business interests in its Trade Secrets, valuable Confidential Information and relationships and\ngoodwill with its employees, customers, and “Merchandising Vendors.”\nIn light of the foregoing, Employee agrees that he/she will not, at any point during his/her employment with Company, work for or engage or participate in any business, enterprise, or endeavor that in any way competes with any aspect of\nCompany’s business or that otherwise conflicts with Company’s interests. In addition, for a period of one (1) year following the Separation Date, and regardless of the reason for separation, Employee shall not, within any geographic area\nin which Company does business at any time during Employee’s employment with Company: (a) become employed by or work for a “Competitor” (as defined below) in any position or capacity involving duties and/or responsibilities\nwhich are the same as or substantially similar to any of the duties and/or responsibilities Employee had with and/or performed for Company; or (b) perform or provide any services which are the same as or substantially similar to any of\nthe services which Employee performed or provided for the Company, for or on behalf of any Competitor. For purposes of this Section 4, the term “Competitor” shall mean only the following businesses, commonly known as: Cato, TJX\n(including without limitation TJMAXX and Marshalls), Burlington Stores, Gabe’s/Rugged Wearhouse, and Ross Stores.\n5.\nCovenant Not to Solicit. During Employee’s employment with Company, and for a period of eighteen (18) months\nfollowing the Separation Date, and regardless of the reason for separation, Employee agrees not to solicit any “Merchandise\nVendors” (as defined below) for the purpose of obtaining merchandise and/or inventory for or on behalf of any “Competitor” (as\ndefined in Section 4 of this Agreement). As used herein, “Merchandise Vendors” means and includes any person or entity who/that\nhas been a vendor or supplier of merchandise and/or inventory to Company during the eighteen (18) months immediately preceding\nthe Separation Date or to whom/which Company is actively soliciting for the provision of merchandise and/or\n3\ninventory, and with whom/which Employee had “material contact.” For purposes of this agreement, “material contact” means contact between Employee and an existing or prospective Merchandise Vendor: (a) with whom Employee\ndealt on behalf of Company within two years prior to the date of Employee’s termination; (b) whose dealings with Company were coordinated or supervised by Employee within two years prior to the date of Employee’s termination;\n(c) about whom Employee obtained Confidential Information in the ordinary course of business as a result of Employee’s association with Company within two years prior to the date of Employee’s termination; or, (d) who provides\nmerchandise and/or inventory to Company, the provision of which results or resulted in compensation, commissions, or earnings for Employee within two years prior to the date of Employee’s termination.\nEmployee specifically acknowledges and agrees that, as Senior Vice President & Chief Financial Officer, his/her duties include, without limitation, establishing purchasing and pricing strategies and policies, managing sales margins,\ninvolvement in establishing and maintaining vendor relationships, and having contact with and confidential and/or proprietary information regarding Merchandise Vendors.\n6.\nCovenant Not to Recruit Personnel. During Employee’s employment with Company, and for a period of two (2) years\nfollowing the Separation Date, and regardless of the reason for separation, Employee will not: (a) recruit or solicit to hire or assist\nothers in recruiting or soliciting to hire, any employee or independent contractor of Company; or (b) cause or assist others in causing\nany employee or independent contractor of Company to terminate his/her relationship with Company.\n7.\nSeverability. If any provision of this Agreement is held invalid, illegal, or otherwise unenforceable, in whole or in part, the\nremaining provisions, and any partially enforceable provisions to the extent enforceable, shall be binding and remain in full force and\neffect. Further, each particular prohibition or restriction set forth in any Section of this Agreement shall be deemed a severable unit,\nand if any court of competent jurisdiction determines that any portion of such prohibition or restriction is against the policy of the law\nin any respect, but such restraint, considered as a whole, is not so clearly unreasonable and overreaching in its terms as to be\nunconscionable, the court shall enforce so much of such restraint as is determined to be reasonably necessary to protect the legitimate\ninterests of Company. Employee and Company expressly agree that, should any court of competent jurisdiction find or determine\nthat any of the covenants contained herein are overly-broad or otherwise unenforceable, the court may “blue-pencil,” modify, and/or\nreform any such covenant (in whole or in part) so as to cure the over-breadth or to otherwise render the covenant enforceable.\n8.\nSurvival of Covenants. All rights and covenants contained in Sections 3, 4, 5, and 6 of this Agreement, and all remedies\nrelating thereto, shall survive the termination of this Agreement for any reason.\n9.\nBinding Effect. The covenants, terms, and provisions set forth in this Agreement shall inure to the benefit of and be\nenforceable by Company and its successors, assigns, and successors-in-interest, including, without limitation, any corporation,\npartnership, or other entity with which Company may be merged or by which it may be acquired. Employee may not assign\nEmployee’s rights or obligations under this Agreement to any other party.\n4\n10.\nGoverning Law. All matters affecting this Agreement, including the validity thereof, are to be subject to, and interpreted\nand construed in accordance with, the laws of the State of Georgia applicable to contracts executed in and to be performed in that\nState.\n11.\nNo Interference with Rights. Employee understands, agrees and acknowledges that nothing contained in this Agreement\nwill prevent Employee from filing a charge or complaint with, reporting possible violations of any law or regulation, making\ndisclosures to, and/or participating in any investigation or proceeding conducted by, the National Labor Relations Board, Equal\nEmployment Opportunity Commission, the Securities and Exchange Commission, and/or any governmental authority charged with\nthe enforcement of any laws.\n12.\nAcknowledgment of Reasonableness/Remedies/Enforcement.\n(a)\nEmployee acknowledges that: (1) Company has valid interests to protect pursuant to Sections 3, 4, 5, and 6 of this\nAgreement; (2) the breach of the provisions of Sections 3, 4, 5, or 6 of this Agreement would result in irreparable injury and\npermanent damage to Company; and (3) such restrictions are reasonable and necessary to protect the interests of Company, are\ncritical to the success of Company’s business, and do not cause undue hardship on Employee.\n(b)\nEmployee agrees that determining damages in the event of a breach of Sections 3, 4, 5, or 6 by Employee would be\ndifficult and that money damages alone would be an inadequate remedy for the injuries and damages which would be suffered by\nCompany from such breach. Therefore, Employee agrees that Company shall be entitled (in addition to any other remedies it may\nhave under this Agreement, at law, or otherwise) to immediate injunctive and other equitable relief to prevent or curtail any such\nbreach or threatened breach by Employee. Employee and Company waive any requirement that a bond or any other security be\nposted. Nothing in this Agreement shall prohibit Company from seeking or recovering any legal or monetary damages to which it\nmay be entitled if Employee breaches any provision in this Agreement.\n(c)\nIn the event Employee breaches this Agreement, Employee shall be liable to Company for all costs of\nenforcement, including attorneys’ fees and court costs, in addition to all other damages and redress available to Company in equity or\nin law.\n13.\nMiscellaneous. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior\ncontracts, agreements, or understandings between the parties which may have been entered into by Company and Employee relating\nto the subject matter hereof (including, without limitation, the Prior Confidentiality Agreement), except for any severance agreements\nor certain restricted stock award and stock option agreements, which are to remain in full force and effect. This Agreement may not\nbe amended or modified in any manner except by an instrument in writing signed by both Company and Employee. The failure of\neither party to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of any such\nprovision or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement\nshall be held to be a waiver of any other or subsequent breach. All remedies are cumulative, including the right of either party to seek\nequitable relief in addition to money damages.\n5\nEMPLOYEE ACKNOWLEDGES AND AGREES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND KNOWS AND UNDERSTANDS ITS CONTENTS, THAT HE/SHE ENTERS INTO THIS\nAGREEMENT KNOWINGLY AND VOLUNTARILY, AND THAT HE/SHE INDICATES HIS/HER CONSENT BY SIGNING THIS FINAL PAGE.\n(SIGNATURES TO FOLLOW ON NEXT PAGE)\n6\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the day and year set forth below.\nCiti Trends, Inc.\n/s/ Stuart Clifford\nEmployee Signature\nBy:\n/s/ Bruce D. Smith\nDate:\n3/15/2018\nBruce D. Smith\nChief Executive Officer\nEmployee Residence Address:\nDate:\n3/15/2018\n7
+41a5c23ade4478c4c34200f2088da140.pdf	effective_date jurisdiction party term	EX-99.(D)(2)(A) 18 dex99d2a.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)(A)\nApril 22, 2008\nLS Cable Ltd.\nASEM Tower, (19-20F) 159\nSamsung-dong, Gangnam-gu\nSeoul 135-090\nKorea\nAttention: Mr. Choong-hyun Kim\nLadies and Gentlemen:\nYou are considering a possible negotiated transaction (the “Transaction”) with Superior Essex Inc. (collectively, with its affiliates,\nsubsidiaries, divisions and its and their predecessors, the “Company”). In connection therewith, the Company is willing to provide you with certain\nnon-public information concerning the Company. You acknowledge that certain of this information is proprietary to the Company and may include\ntrade secrets or other business information the disclosure of which could harm the Company. In consideration of the foregoing, you agree, and you\nagree to cause your directors, officers, employees, agents, advisors (including attorneys, accountants, investment bankers, consultants and any\nrepresentatives of such advisors), potential debt or equity financing sources (provided that such equity financing sources are limited to passive\ninstitutional investors who have executed a separate letter agreement with the Company substantially in the form of this letter agreement (a\n“Permitted Equity Financing Source”)), representatives and affiliates (collectively, “Representatives”), to treat any and all information concerning\nthe Company that is furnished to you or your Representatives (regardless of the manner in which it is furnished) now or in the future by or on behalf\nof the Company, together with any notes, analyses, compilations, studies, interpretations, documents or records containing, referring, relating to,\nbased upon or derived from such information, in whole or in part (collectively, “Evaluation Material”) in accordance with the provisions of this letter\nagreement, and to take or abstain from taking the other actions hereinafter set forth.\n1. The term “Evaluation Material” does not include information that (i) is or has become generally available to the public other than as a\nresult of a direct or indirect disclosure by you or your Representatives in breach of this letter agreement, (ii) was available to you or any of your\nRepresentatives, or has become available to you or any of your Representatives, on a non-confidential basis from a source other than the Company\nor any of its Representatives; provided, that the source of such information was not believed by you after reasonable inquiry to be bound by a\nconfidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information,\nor (iii) you or any of your Representatives independently developed without reference to Evaluation Material or any derivative thereof.\n2. You hereby agree that you will, and will cause your Representatives to, (a) use the Evaluation Material solely for the purpose of\nevaluating and pursuing a Transaction and not for any other purpose, (b) keep the Evaluation Material confidential and (c) not disclose any of the\nEvaluation Material in any manner whatsoever without the prior written consent of the Company or as expressly otherwise permitted by the terms\nhereof; provided, however, that you or your Representatives may disclose any of such information to your Representatives (i) who need to know\nsuch information for the sole purpose of evaluating the Transaction, (ii) who are\n1\ninformed by you of the confidential nature of such information, and (iii) who are provided with a copy of this letter agreement and agree to act in\naccordance with its terms as if they were bound hereby or are otherwise bound by a duty of confidentiality. You agree to be responsible to the\nCompany for any breach of this letter agreement by any of your Representatives.\n3. Each of the parties agree that it and its Representatives will not disclose, without the prior written consent of the other party, to any\nother person that the Evaluation Material has been made available to you, that discussions or negotiations are taking or have taken place between the\nparties concerning the Transaction or any other transaction involving you and the Company, or any of the terms, conditions or other facts with\nrespect thereto (including the status thereof) (the “Discussion Information”), nor will you (or your Representatives) have any communications\nwhatsoever with any other potential purchaser (other than a Permitted Equity Financing Source), concerning the Transaction. The term “person” as\nused in this letter agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity.\n4. You agree that for a period of eighteen months following the date of this letter agreement, neither you nor any of your affiliates (as\nsuch term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), who have been provided access to the\nEvaluation Material or have been made aware of the fact that you are or were considering a Transaction shall solicit to employ or employ (a) any\nnow or then current employee of the Company who has participated in discussions contemplated by this letter agreement, (b) any officer of the\nCompany as of the date hereof or (c) any now or then current employee who became known to you in connection with your evaluation of the\nTransaction; provided, however, that the foregoing shall not prevent you from (A) making general public solicitations or advertisements in the\nordinary course of business not targeted directly or indirectly at employees or officers of the Company or (B) responding to any person who contacts\nyou or your affiliates regarding his or her own employment with you or any of your affiliates on his or her own initiative without any direct\nsolicitation by you or any of your affiliates other than any generalized search or ordinary course practice referred to in clause (A) above.\n5. You agree that, for a period ending two years from the date hereof (the “Standstill Period”), neither any Covered Party (as defined\nbelow) nor anyone authorized to act on behalf of any such Covered Party will, directly or indirectly, alone or in concert with others, unless in each\ncase specifically requested in writing to do so by the Company (a) acquire, offer to acquire, or agree to acquire, by purchase or otherwise, ownership\n(including, but not limited to, beneficial ownership as defined in Rule 13d-3 promulgated under the Exchange Act) of more than 1% of any class of\nvoting securities (including securities convertible into more than 1% of any such class of voting securities) (“Voting Securities”) issued by the\nCompany or material assets of the Company or any subsidiary of the Company constituting 10% or more of the Company’s consolidated assets\n(measured by fair market value) or providing 10% or more of the revenue of the Company, (b) enter, agree to enter, propose, seek or offer to enter\ninto or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving the Company or any of\nits subsidiaries or material assets of the Company or any subsidiary of the Company constituting 10% or more of the Company’s consolidated assets\n(measured by fair market value) or providing 10% or more of the revenue of the\n2\nCompany, (c) make, or in any way participate or engage in, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) with\nrespect to the Voting Securities of the Company, or advise or seek to influence any person or entity with respect to the voting of, or giving or\nwithholding of proxies with respect to, any Voting Securities of the Company or any of its subsidiaries, (d) seek or propose to influence or control\n(whether through a “group”, as such term is used in Rule 13d-5 promulgated under the Exchange Act, or otherwise) the management, board of\ndirectors, policies or affairs of the Company or any of its subsidiaries, (e) make any request to waive or amend any provision of this paragraph\n(including this clause), (f) take any action that would reasonably be expected to require the Company to make an announcement to the holders of its\nsecurities regarding the possibility of a business combination, merger or other type of transaction described in this paragraph with you and/or your\naffiliates (provided that, taking any action to comply with the requirements under applicable law, regulation or legal process (including, but not\nlimited to, rules or regulations of any securities exchange or similar regulatory organization) permitted under Section 6 below shall not be deemed to\nbe prohibited by this clause (f)), (g) form, join or in any way participate in a group or act jointly or in concert with others in connection with any of\nthe foregoing, (h) disclose to any person other than your Representatives any intention, plan or arrangement inconsistent with, or prohibited by, any\nof the foregoing, or (i) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons to\ndo any of the foregoing. Notwithstanding the foregoing (other than clause (f) above), nothing in this letter agreement shall prohibit you from making\na one-time non-public proposal to the Company’s board of directors promptly following the completion of the initial due diligence and the meeting\nwith the management (provided that you may make an additional non-public proposal should the Company provide the notification described in the\npenultimate sentence of the next paragraph and (i) such notification occurs prior to the completion of your meeting with management and (ii) you\nmake such proposal promptly following such notification). The term “Covered Party” shall mean you or any of your affiliates and any Permitted\nEquity Financing Source.\nIf the Company has in effect on the date hereof any agreement, or, during the Standstill Period, enters into or amends any agreement,\nrelating to the provision of non-public information to a person or group in connection with a possible acquisition by such person or group of more\nthan 50% of the Company’s Voting Securities through a merger, business combination or other extraordinary transaction (any of the foregoing, a\n“Business Combination”) and such agreement (a “Third Party Agreement”) includes a shorter time period than the Standstill Period with respect to\nrestrictions on such other party’s acquisitions of the Company’s shares, then the Standstill Period set forth in the preceding paragraph shall expire\nupon the expiration of such shorter time period commencing from the date of this letter agreement. In such event, the Company agrees to notify you\npromptly following the earlier expiration of your Standstill Period that the restrictions set forth in the preceding paragraph are no longer applicable to\nyou. If the board of directors of the Company is scheduled to meet prior to May 6, 2008 to consider a bona fide proposalfrom a third party with\nrespect to a Business Combination, the Company shall provide you with notice of such meeting not less than one New York business day prior to\nsuch meeting (provided that such notice shall be limited to the fact that the board is considering a bona fide proposal with respect to a Business\nCombination and shall not include the identity of the third party or any proposed term of the Business Combination or any other\n3\ninformation). Any notice required under the immediately preceding sentence shall be made by telephone to Choong-hyun Kim at +82-2-2189-9075\nand in writing by electronic and facsimile transmission (with a copy of such electronic and facsimile transaction to your advisors, Cleary Gottlieb\nSteen & Hamilton LLP (Attention: Victor I. Lewkow (vlewkow@cgsh.com) and Sang Jin Han (shan@cgsh.com); facsimile number: (212) 225-\n3999) and Macquarie Capital (USA) Inc. (Attention: Charles W. Mills (charles.mills@macquarie.com); facsimile number: (404) 815-3430).\n6. In the event that (a) you or any of your Representatives are required to disclose any of the Evaluation Material or (b) either party or\nany of its Representatives are required to disclose any of the Discussion Information, in each case, by applicable law, regulation or legal process\n(including, but not limited to, rules or regulations of any securities exchange or similar self-regulatory organization (including by oral questions,\ninterrogatories, requests for information or documents, subpoena, civil investigative demand or similar process)), the disclosing party will promptly\nnotify the other party by telephone (in the case of the Company, Barbara Blackford at (404) 580-3210, David Aldridge at (404) 725-7630 and Justin\nDeedy at (770) 335-4538, and, in the case of you, Choong-hyun Kim at +82-2 -2189-9075 and in writing by electronic and facsimile transmission so\nthat the other party may seek a protective order or other appropriate remedy or waive compliance with the applicable provisions of this letter\nagreement by the disclosing party or such of its Representatives (it being understood that, in the case of (b) above, once the disclosing party has\nnotified the other party as provided above, nothing herein shall be deemed to prevent the disclosing party from complying with such requirement in a\ntimely manner). Nothing herein shall be deemed to prevent you or your Representatives, as the case may be, from honoring a subpoena that seeks\ndiscovery of the Evaluation Material or prevent either party or its Representatives from honoring a subpoena that seeks discovery of Discussion\nInformation if (i) a motion for a protective order, motion to quash and/or other motion filed to prevent the production or disclosure of the Evaluation\nMaterial or Discussion Information, as the case may be, has been denied or is not made; provided, however, that you disclose only that portion of the\nEvaluation Material and either party may disclose only that portion of the Discussion Information which such party’s outside legal counsel advises is\nlegally required and that such party exercises all reasonable best efforts to preserve the confidentiality of the remainder of the Evaluation Material or\nDiscussion Information, as the case may be; or (ii) the Company consents in writing to having the Evaluation Material or the other party consents in\nwriting to having the Discussion Information, as the case may be, produced or disclosed pursuant to the subpoena. In no event will you or any of\nyour Representatives oppose action by the Company to obtain a protective order or other relief to prevent the disclosure of the Evaluation Material\nor Discussion Information or to obtain reliable assurance that confidential treatment will be afforded the Evaluation Material or Discussion\nInformation.\n7. If you determine not to proceed with the Transaction, you will promptly notify the Company of that decision. In that case, or at any\ntime after May 6, 2008 upon the written request of the Company for any reason, you will either (i) promptly destroy all copies of the Evaluation\nMaterial in your or your Representatives’ possession or (ii) promptly deliver to the Company at your own expense all remaining copies of the\nEvaluation Material in your or your Representatives’ possession, except in either case you may retain such copies as required by applicable law or\nregulation. In addition, you agree promptly to certify in writing to the\n4\nCompany that you have complied with your obligations under this paragraph. Notwithstanding the return or destruction of the Evaluation Material,\nyou and your Representatives will continue to be bound by your and their obligations hereunder and any copy of the Evaluation Material permitted\nhereunder to be retained will remain subject to this letter agreement for so long as such Evaluation Material is retained.\n8. You acknowledge that none of the Company or any of its Representatives makes any representation or warranty, express or implied, as\nto the accuracy or completeness of the Evaluation Material. None of the Company or any of its Representatives shall have any liability or obligation\nto you or to any of your Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom.\nOnly those representations or warranties that are made in a final binding written definitive agreement regarding the Transaction between the\nCompany and you (a “Definitive Agreement”), when, as and if executed, and subject to such limitations and restrictions as may be specified therein,\nwill have any legal effect. For purposes of this letter agreement, the term “Definitive Agreement” does not include an executed letter of intent or any\nother preliminary written agreement, nor does it include any written or oral acceptance of any offer or bid made by you.\n9. Each party understands and agrees that no contract or agreement (or agreement to agree) providing for any Transaction between you\nand the Company shall be deemed to exist unless and until a Definitive Agreement has been executed and delivered, and each party hereby waives,\nin advance, any claims (including, without limitation, breach of contract and tortious interference claims) in connection with any Transaction unless\nand until the Parties shall have entered into a Definitive Agreement. The parties also agree that unless and until a Definitive Agreement has been\nexecuted and delivered, neither you nor the Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction\nby virtue of this letter agreement or any other communication except, in the case of this letter agreement, for the matters specifically agreed to\nherein. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all proposals made by you or\nany of your Representatives with regard to a Transaction, terminate discussions and negotiations with you, or refuse to provide any further access to\nEvaluation Material. Neither this paragraph nor any other provision in this letter agreement can be waived or amended except by explicit written\nconsent of each party hereto. Any attempted waiver or modification in violation of this provision shall be void.\n10. It is understood and agreed that no failure or delay by the Company or you in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other\nright, power or privilege hereunder.\n11. Each of the parties acknowledges that money damages would not be a sufficient remedy for any breach of this letter agreement by the\nother party or any of its Representatives and consents to a court of competent jurisdiction entering an order finding that the Company or you, as\napplicable, has been irreparably harmed as a result of any such breach and to the granting of injunctive relief without proof of actual damages as a\nremedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach by a party\n5\nor its Representatives of this letter agreement but shall be in addition to all other remedies available at law or equity. Each of the parties agrees to\nwaive, and to cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with such remedy.\n12. This letter agreement and all disputes or controversies arising out of or related to this letter agreement shall be governed by and\nconstrued in accordance with the internal laws of the State of New York, without reference to any conflicts of law principles which would result in\nthe application of the laws of another jurisdiction.\n13. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New\nYork and of the United States of America located in the Borough of Manhattan in the City of New York for any actions, suits or proceedings arising\nout of or relating to this letter agreement or the Transaction and agrees (i) not to commence any action, suit or proceeding relating thereto except in\nsuch courts, and (ii) to waive any defenses as to personal jurisdiction of such courts over such party. We agree that service of any process, summons,\nnotice or document by facsimile transmission to (770) 657-6479, Attention: Barbara Blackford, (with copy by U.S . registered mail to us at the\naddress set forth above) shall be effective service of process for any action, suit or proceeding brought against us in any such court. You hereby\nirrevocably designate CT Corporation System (in such capacity, the “process agent”), with an office at 111 Eighth Avenue New York, NY 10011, as\nyour designee, appointee and agent to receive, for and on your behalf service of process in such jurisdiction in any legal action or proceedings with\nrespect to this letter agreement or the Transaction, and such service shall be deemed complete upon delivery thereof to the process agent; provided\nthat in the case of any such service upon the process agent, we shall also deliver a copy thereof to you by facsimile transmission at +82-2 -2189 -9129,\nAttention: Choong-hyun Kim (with a copy to Cleary Gottlieb Steen & Hamilton LLP, Attention: Victor I. Lewkow and Sang Jin Han, (212) 225-\n3999. You shall take all such action as may be necessary to continue said appointment in full force and effect or to appoint another agent so that you\nwill at all times have an agent for service of process for the above purposes in New York, New York. Each party hereby irrevocably and\nunconditionally (x) waives any objection to the laying of venue of any action, suit or proceeding arising out of this letter agreement in the courts of\nthe State of New York or the United States of America located in the Borough of Manhattan in the City of New York, (y) waives and agrees not to\nplead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum, and\n(z) waives, and agrees not to assert in any such court any claim that it or its property is exempt or immune from jurisdiction of any such court or\nfrom any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution\nof judgment, execution of judgment or otherwise).\n14. Except as provided in Sections, 5, 6 and 13, any notice or other communication hereunder shall be sufficient if in writing, and sent by\nfacsimile or electronic transmission to, in the case of the Company, (770) 657-6479, Attention: Barbara Blackford, email:\nbarbara.blackford@spsx.com, or, in your case, +82-2-2189-9129, Attention: Choong-hyun Kim, email: kimch@lscable.com .\n6\n15. The provisions of this letter agreement shall be severable in the event that any of the provisions hereof are held by a court of\ncompetent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent\npermitted by law.\n16. This letter agreement represents the entire understanding with respect to the matters contained herein and supersedes all prior\nagreements, arrangements, and understandings between the parties with respect to such matters.\n17. This letter agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed\noriginal, and all such counterparts shall together constitute one and the same instrument.\n18. This letter agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part, by you\nwithout the express written consent of the Company.\n19. Except as otherwise provided in paragraphs 4 and 5 hereof, the term of this letter agreement shall be three years (the “Term”), unless\notherwise agreed in writing by the mutual agreement between you and the Company. If the Company has in effect on the date hereof any Third Party\nAgreement, or, during the Term, enters into or amends any Third Party Agreement, and such Third Party Agreement includes a shorter time period\nthan the Term with respect to the requirement that the non-public information provided by the Company under such Third Party Agreement be kept\nconfidential by the recipient of such information thereunder, then the Term set forth in the preceding sentence shall expire upon the expiration of\nsuch shorter time period commencing from the date of this letter agreement (provided that paragraph 5 will remain in effect for the Standstill Period,\nsubject to modification in accordance with that paragraph). In such event, the Company agrees to notify you promptly following the earlier\nexpiration of your Term of such expiration.\n[Remainder of page intentionally left blank]\n7\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter\nagreement shall become a binding agreement between you and the Company.\nVery truly yours,\nSUPERIOR ESSEX INC.\nBy: /s/ David S. Aldridge\nName: David S. Aldridge\nTitle: EVP & CFO\nAccepted and agreed as of the date first written above:\nLS CABLE LTD.\nBy: /s/ Choong-hyun Kim\nName: Choong-hyun Kim\nTitle: Senior Vice President	EX-99.(D)(2)(A) 18 dex99d2a.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)(A)\nApril 22, 2008\nLS Cable Ltd.\nASEM Tower, (19-20F) 159\nSamsung-dong, Gangnam-gu\nSeoul 135-090\nKorea\nAttention: Mr. Choong-hyun Kim\nLadies and Gentlemen:\nYou are considering a possible negotiated transaction (the “Transaction”) with Superior Essex Inc. (collectively, with its affiliates,\nsubsidiaries, divisions and its and their predecessors, the “Company”). In connection therewith, the Company is willing to provide you with certain\nnon-public information concerning the Company. You acknowledge that certain of this information is proprietary to the Company and may include\ntrade secrets or other business information the disclosure of which could harm the Company. In consideration of the foregoing, you agree, and you\nagree to cause your directors, officers, employees, agents, advisors (including attorneys, accountants, investment bankers, consultants and any\nrepresentatives of such advisors), potential debt or equity financing sources (provided that such equity financing sources are limited to passive\ninstitutional investors who have executed a separate letter agreement with the Company substantially in the form of this letter agreement (a\n“Permitted Equity Financing Source”)), representatives and affiliates (collectively, “Representatives”), to treat any and all information concerning\nthe Company that is furnished to you or your Representatives (regardless of the manner in which it is furnished) now or in the future by or on behalf\nof the Company, together with any notes, analyses, compilations, studies, interpretations, documents or records containing, referring, relating to,\nbased upon or derived from such information, in whole or in part (collectively, “Evaluation Material”) in accordance with the provisions of this letter\nagreement, and to take or abstain from taking the other actions hereinafter set forth.\n \n1. The term “Evaluation Material” does not include information that (i) is or has become generally available to the public other than as a\nresult of a direct or indirect disclosure by you or your Representatives in breach of this letter agreement, (ii) was available to you or any of your\nRepresentatives, or has become available to you or any of your Representatives, on a non-confidential basis from a source other than the Company\nor any of its Representatives; provided, that the source of such information was not believed by you after reasonable inquiry to be bound by a\nconfidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information,\nor (iii) you or any of your Representatives independently developed without reference to Evaluation Material or any derivative thereof.\n2. You hereby agree that you will, and will cause your Representatives to, (a) use the Evaluation Material solely for the purpose of\nevaluating and pursuing a Transaction and not for any other purpose, (b) keep the Evaluation Material confidential and (c) not disclose any of the\nEvaluation Material in any manner whatsoever without the prior written consent of the Company or as expressly otherwise permitted by the terms\nhereof; provided, however, that you or your Representatives may disclose any of such information to your Representatives (i) who need to know\nsuch information for the sole purpose of evaluating the Transaction, (ii) who are\n1\ninformed by you of the confidential nature of such information, and (iii) who are provided with a copy of this letter agreement and agree to act in\naccordance with its terms as if they were bound hereby or are otherwise bound by a duty of confidentiality. You agree to be responsible to the\nCompany for any breach of this letter agreement by any of your Representatives.\n3. Each of the parties agree that it and its Representatives will not disclose, without the prior written consent of the other party, to any\nother person that the Evaluation Material has been made available to you, that discussions or negotiations are taking or have taken place between the\nparties concerning the Transaction or any other transaction involving you and the Company, or any of the terms, conditions or other facts with\nrespect thereto (including the status thereof) (the “Discussion Information”), nor will you (or your Representatives) have any communications\nwhatsoever with any other potential purchaser (other than a Permitted Equity Financing Source), concerning the Transaction. The term “person” as\nused in this letter agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity.\n4. You agree that for a period of eighteen months following the date of this letter agreement, neither you nor any of your affiliates (as\nsuch term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), who have been provided access to the\nEvaluation Material or have been made aware of the fact that you are or were considering a Transaction shall solicit to employ or employ (a) any\nnow or then current employee of the Company who has participated in discussions contemplated by this letter agreement, (b) any officer of the\nCompany as of the date hereof or (c) any now or then current employee who became known to you in connection with your evaluation of the\nTransaction; provided, however, that the foregoing shall not prevent you from (A) making general public solicitations or advertisements in the\nordinary course of business not targeted directly or indirectly at employees or officers of the Company or (B) responding to any person who contacts\nyou or your affiliates regarding his or her own employment with you or any of your affiliates on his or her own initiative without any direct\nsolicitation by you or any of your affiliates other than any generalized search or ordinary course practice referred to in clause (A) above.\n5. You agree that, for a period ending two years from the date hereof (the “Standstill Period”), neither any Covered Party (as defined\nbelow) nor anyone authorized to act on behalf of any such Covered Party will, directly or indirectly, alone or in concert with others, unless in each\ncase specifically requested in writing to do so by the Company (a) acquire, offer to acquire, or agree to acquire, by purchase or otherwise, ownership\n(including, but not limited to, beneficial ownership as defined in Rule 13d-3 promulgated under the Exchange Act) of more than 1% of any class of\nvoting securities (including securities convertible into more than 1% of any such class of voting securities) (“Voting Securities”) issued by the\nCompany or material assets of the Company or any subsidiary of the Company constituting 10% or more of the Company’s consolidated assets\n(measured by fair market value) or providing 10% or more of the revenue of the Company, (b) enter, agree to enter, propose, seek or offer to enter\ninto or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving the Company or any of\nits subsidiaries or material assets of the Company or any subsidiary of the Company constituting 10% or more of the Company’s consolidated assets\n(measured by fair market value) or providing 10% or more of the revenue of the\n2\nCompany, (c) make, or in any way participate or engage in, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) with\nrespect to the Voting Securities of the Company, or advise or seek to influence any person or entity with respect to the voting of, or giving or\nwithholding of proxies with respect to, any Voting Securities of the Company or any of its subsidiaries, (d) seek or propose to influence or control\n(whether through a “group”, as such term is used in Rule 13d-5 promulgated under the Exchange Act, or otherwise) the management, board of\ndirectors, policies or affairs of the Company or any of its subsidiaries, (¢) make any request to waive or amend any provision of this paragraph\n(including this clause), (f) take any action that would reasonably be expected to require the Company to make an announcement to the holders of its\nsecurities regarding the possibility of a business combination, merger or other type of transaction described in this paragraph with you and/or your\naffiliates (provided that, taking any action to comply with the requirements under applicable law, regulation or legal process (including, but not\nlimited to, rules or regulations of any securities exchange or similar regulatory organization) permitted under Section 6 below shall not be deemed to\nbe prohibited by this clause (f)), (g) form, join or in any way participate in a group or act jointly or in concert with others in connection with any of\nthe foregoing, (h) disclose to any person other than your Representatives any intention, plan or arrangement inconsistent with, or prohibited by, any\nof the foregoing, or (i) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons to\ndo any of the foregoing. Notwithstanding the foregoing (other than clause (f) above), nothing in this letter agreement shall prohibit you from making\na one-time non-public proposal to the Company’s board of directors promptly following the completion of the initial due diligence and the meeting\nwith the management (provided that you may make an additional non-public proposal should the Company provide the notification described in the\npenultimate sentence of the next paragraph and (i) such notification occurs prior to the completion of your meeting with management and (ii) you\nmake such proposal promptly following such notification). The term “Covered Party” shall mean you or any of your affiliates and any Permitted\nEquity Financing Source.\nIf the Company has in effect on the date hereof any agreement, or, during the Standstill Period, enters into or amends any agreement,\nrelating to the provision of non-public information to a person or group in connection with a possible acquisition by such person or group of more\nthan 50% of the Company’s Voting Securities through a merger, business combination or other extraordinary transaction (any of the foregoing, a\n“Business Combination) and such agreement (a “Third Party Agreement”) includes a shorter time period than the Standstill Period with respect to\nrestrictions on such other party’s acquisitions of the Company’s shares, then the Standstill Period set forth in the preceding paragraph shall expire\nupon the expiration of such shorter time period commencing from the date of this letter agreement. In such event, the Company agrees to notify you\npromptly following the earlier expiration of your Standstill Period that the restrictions set forth in the preceding paragraph are no longer applicable to\nyou. If the board of directors of the Company is scheduled to meet prior to May 6, 2008 to consider a bona fide proposalfrom a third party with\nrespect to a Business Combination, the Company shall provide you with notice of such meeting not less than one New York business day prior to\nsuch meeting (provided that such notice shall be limited to the fact that the board is considering a bona fide proposal with respect to a Business\nCombination and shall not include the identity of the third party or any proposed term of the Business Combination or any other\n3\ninformation). Any notice required under the immediately preceding sentence shall be made by telephone to Choong-hyun Kim at +82-2-2189-9075\nand in writing by electronic and facsimile transmission (with a copy of such electronic and facsimile transaction to your advisors, Cleary Gottlieb\nSteen & Hamilton LLP (Attention: Victor I. Lewkow (vlewkow@cgsh.com) and Sang Jin Han (shan@cgsh.com); facsimile number: (212) 225-\n3999) and Macquarie Capital (USA) Inc. (Attention: Charles W. Mills (charles.mills@macquarie.com); facsimile number: (404) 815-3430).\n6. In the event that (a) you or any of your Representatives are required to disclose any of the Evaluation Material or (b) either party or\nany of its Representatives are required to disclose any of the Discussion Information, in each case, by applicable law, regulation or legal process\n(including, but not limited to, rules or regulations of any securities exchange or similar self-regulatory organization (including by oral questions,\ninterrogatories, requests for information or documents, subpoena, civil investigative demand or similar process)), the disclosing party will promptly\nnotify the other party by telephone (in the case of the Company, Barbara Blackford at (404) 580-3210, David Aldridge at (404) 725-7630 and Justin\nDeedy at (770) 335-4538, and, in the case of you, Choong-hyun Kim at +82-2-2189-9075 and in writing by electronic and facsimile transmission so\nthat the other party may seek a protective order or other appropriate remedy or waive compliance with the applicable provisions of this letter\nagreement by the disclosing party or such of its Representatives (it being understood that, in the case of (b) above, once the disclosing party has\nnotified the other party as provided above, nothing herein shall be deemed to prevent the disclosing party from complying with such requirement in a\ntimely manner). Nothing herein shall be deemed to prevent you or your Representatives, as the case may be, from honoring a subpoena that seeks\ndiscovery of the Evaluation Material or prevent either party or its Representatives from honoring a subpoena that seeks discovery of Discussion\nInformation if (i) a motion for a protective order, motion to quash and/or other motion filed to prevent the production or disclosure of the Evaluation\nMaterial or Discussion Information, as the case may be, has been denied or is not made; provided, however, that you disclose only that portion of the\nEvaluation Material and either party may disclose only that portion of the Discussion Information which such party’s outside legal counsel advises is\nlegally required and that such party exercises all reasonable best efforts to preserve the confidentiality of the remainder of the Evaluation Material or\nDiscussion Information, as the case may be; or (ii) the Company consents in writing to having the Evaluation Material or the other party consents in\nwriting to having the Discussion Information, as the case may be, produced or disclosed pursuant to the subpoena. In no event will you or any of\nyour Representatives oppose action by the Company to obtain a protective order or other relief to prevent the disclosure of the Evaluation Material\nor Discussion Information or to obtain reliable assurance that confidential treatment will be afforded the Evaluation Material or Discussion\nInformation.\n7. If you determine not to proceed with the Transaction, you will promptly notify the Company of that decision. In that case, or at any\ntime after May 6, 2008 upon the written request of the Company for any reason, you will either (i) promptly destroy all copies of the Evaluation\nMaterial in your or your Representatives’ possession or (ii) promptly deliver to the Company at your own expense all remaining copies of the\nEvaluation Material in your or your Representatives’ possession, except in either case you may retain such copies as required by applicable law or\nregulation. In addition, you agree promptly to certify in writing to the\nCompany that you have complied with your obligations under this paragraph. Notwithstanding the return or destruction of the Evaluation Material,\nyou and your Representatives will continue to be bound by your and their obligations hereunder and any copy of the Evaluation Material permitted\nhereunder to be retained will remain subject to this letter agreement for so long as such Evaluation Material is retained.\n8. You acknowledge that none of the Company or any of its Representatives makes any representation or warranty, express or implied, as\nto the accuracy or completeness of the Evaluation Material. None of the Company or any of its Representatives shall have any liability or obligation\nto you or to any of your Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom.\nOnly those representations or warranties that are made in a final binding written definitive agreement regarding the Transaction between the\nCompany and you (a “Definitive Agreement”), when, as and if executed, and subject to such limitations and restrictions as may be specified therein,\nwill have any legal effect. For purposes of this letter agreement, the term “Definitive Agreement” does not include an executed letter of intent or any\nother preliminary written agreement, nor does it include any written or oral acceptance of any offer or bid made by you.\n9. Each party understands and agrees that no contract or agreement (or agreement to agree) providing for any Transaction between you\nand the Company shall be deemed to exist unless and until a Definitive Agreement has been executed and delivered, and each party hereby waives,\nin advance, any claims (including, without limitation, breach of contract and tortious interference claims) in connection with any Transaction unless\nand until the Parties shall have entered into a Definitive Agreement. The parties also agree that unless and until a Definitive Agreement has been\nexecuted and delivered, neither you nor the Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction\nby virtue of this letter agreement or any other communication except, in the case of this letter agreement, for the matters specifically agreed to\nherein. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all proposals made by you or\nany of your Representatives with regard to a Transaction, terminate discussions and negotiations with you, or refuse to provide any further access to\nEvaluation Material. Neither this paragraph nor any other provision in this letter agreement can be waived or amended except by explicit written\nconsent of each party hereto. Any attempted waiver or modification in violation of this provision shall be void.\n10. It is understood and agreed that no failure or delay by the Company or you in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other\nright, power or privilege hereunder.\n11. Each of the parties acknowledges that money damages would not be a sufficient remedy for any breach of this letter agreement by the\nother party or any of its Representatives and consents to a court of competent jurisdiction entering an order finding that the Company or you, as\napplicable, has been irreparably harmed as a result of any such breach and to the granting of injunctive relief without proof of actual damages as a\nremedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach by a party\n5\nor its Representatives of this letter agreement but shall be in addition to all other remedies available at law or equity. Each of the parties agrees to\nwaive, and to cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with such remedy.\n12. This letter agreement and all disputes or controversies arising out of or related to this letter agreement shall be governed by and\nconstrued in accordance with the internal laws of the State of New York, without reference to any conflicts of law principles which would result in\nthe application of the laws of another jurisdiction.\n13. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New\nYork and of the United States of America located in the Borough of Manhattan in the City of New York for any actions, suits or proceedings arising\nout of or relating to this letter agreement or the Transaction and agrees (i) not to commence any action, suit or proceeding relating thereto except in\nsuch courts, and (ii) to waive any defenses as to personal jurisdiction of such courts over such party. We agree that service of any process, summons,\nnotice or document by facsimile transmission to (770) 657-6479, Attention: Barbara Blackford, (with copy by U.S. registered mail to us at the\naddress set forth above) shall be effective service of process for any action, suit or proceeding brought against us in any such court. You hereby\nirrevocably designate CT Corporation System (in such capacity, the “process agent”), with an office at 111 Eighth Avenue New York, NY 10011, as\nyour designee, appointee and agent to receive, for and on your behalf service of process in such jurisdiction in any legal action or proceedings with\nrespect to this letter agreement or the Transaction, and such service shall be deemed complete upon delivery thereof to the process agent; provided\nthat in the case of any such service upon the process agent, we shall also deliver a copy thereof to you by facsimile transmission at +82-2-2189-9129,\nAttention: Choong-hyun Kim (with a copy to Cleary Gottlieb Steen & Hamilton LLP, Attention: Victor I. Lewkow and Sang Jin Han, (212) 225-\n3999. You shall take all such action as may be necessary to continue said appointment in full force and effect or to appoint another agent so that you\nwill at all times have an agent for service of process for the above purposes in New York, New York. Each party hereby irrevocably and\nunconditionally (x) waives any objection to the laying of venue of any action, suit or proceeding arising out of this letter agreement in the courts of\nthe State of New York or the United States of America located in the Borough of Manhattan in the City of New York, (y) waives and agrees not to\nplead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum, and\n(z) waives, and agrees not to assert in any such court any claim that it or its property is exempt or immune from jurisdiction of any such court or\nfrom any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution\nof judgment, execution of judgment or otherwise).\n14. Except as provided in Sections, 5, 6 and 13, any notice or other communication hereunder shall be sufficient if in writing, and sent by\nfacsimile or electronic transmission to, in the case of the Company, (770) 657-6479, Attention: Barbara Blackford, email:\nbarbara.blackford@spsx.com, or, in your case, +82-2-2189-9129, Attention: Choong-hyun Kim, email: kimch@lscable.com.\n6\n15. The provisions of this letter agreement shall be severable in the event that any of the provisions hereof are held by a court of\ncompetent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent\npermitted by law.\n16. This letter agreement represents the entire understanding with respect to the matters contained herein and supersedes all prior\nagreements, arrangements, and understandings between the parties with respect to such matters.\n17. This letter agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed\noriginal, and all such counterparts shall together constitute one and the same instrument.\n18. This letter agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part, by you\nwithout the express written consent of the Company.\n19. Except as otherwise provided in paragraphs 4 and 5 hereof, the term of this letter agreement shall be three years (the “Term”), unless\notherwise agreed in writing by the mutual agreement between you and the Company. If the Company has in effect on the date hereof any Third Party\nAgreement, or, during the Term, enters into or amends any Third Party Agreement, and such Third Party Agreement includes a shorter time period\nthan the Term with respect to the requirement that the non-public information provided by the Company under such Third Party Agreement be kept\nconfidential by the recipient of such information thereunder, then the Term set forth in the preceding sentence shall expire upon the expiration of\nsuch shorter time period commencing from the date of this letter agreement (provided that paragraph 5 will remain in effect for the Standstill Period,\nsubject to modification in accordance with that paragraph). In such event, the Company agrees to notify you promptly following the earlier\nexpiration of your Term of such expiration.\n[Remainder of page intentionally left blank]\n7\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement between you and the Company. Accepted and agreed as of the date first written above: LS CABLE LTD. By:\n/s/ Choong-hyun Kim Name: Choong-hyun Kim Title:\nSenior Vice President\nVery truly yours,\nSUPERIOR ESSEX INC.\nBy: /s/David S. Aldridge\nName: David S. Aldridge\nTitle: EVP & CFO	EX-99.(D)(2)(A) 18 dex99d2a.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)(A)\nApril 22, 2008\nLS Cable Ltd.\nASEM Tower, (19-20F) 159\nSamsung-dong, Gangnam-gu\nSeoul 135-090\nKorea\nAttention: Mr. Choong-hyun Kim\nLadies and Gentlemen:\nYou are considering a possible negotiated transaction (the "Transaction") with Superior Essex Inc. (collectively, with its affiliates,\nsubsidiaries, divisions and its and their predecessors, the "Company."). In connection therewith, the Company is willing to provide you with certain\nnon-public information concerning the Company. You acknowledge that certain of this information is proprietary to the Company and may include\ntrade secrets or other business information the disclosure of which could harm the Company. In consideration of the foregoing, you agree, and you\nagree to cause your directors, officers, employees, agents, advisors (including attorneys, accountants, investment bankers, consultants and any\nrepresentatives of such advisors), potential debt or equity financing sources (provided that such equity financing sources are limited to passive\ninstitutional investors who have executed a separate letter agreement with the Company substantially in the form of this letter agreement\n(a\n"Permitted Equity Financing Source")), representatives and affiliates (collectively, "Representatives"), to treat any and all information concerning\nthe Company that is furnished to you or your Representatives (regardless of the manner in which it is furnished) now or in the future by or on behalf\nof the Company, together with any notes, analyses, compilations, studies, interpretations, documents or records containing, referring, relating to,\nbased upon or derived from such information, in whole or in part (collectively, "Evaluation Material") in accordance with the provisions of this letter\nagreement, and to take or abstain from taking the other actions hereinafter set forth.\n1. The term "Evaluation Material" does not include information that (i) is or has become generally available to the public other than as a\nresult of a direct or indirect disclosure by you or your Representatives in breach of this letter agreement, (ii) was available to you or any of your\nRepresentatives, or has become available to you or any of your Representatives, on a non-confidential basis from a source other than the Company\nor any of its Representatives; provided, that the source of such information was not believed by you after reasonable inquiry to be bound by\na\nconfidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information,\nor (iii) you or any of your Representatives independently developed without reference to Evaluation Material or any derivative thereof.\n2. You hereby agree that you will, and will cause your Representatives to, (a) use the Evaluation Material solely for the purpose of\nevaluating and pursuing a Transaction and not for any other purpose, (b) keep the Evaluation Material confidential and (c) not disclose any of the\nEvaluation Material in any manner whatsoever without the prior written consent of the Company or as expressly otherwise permitted by the terms\nhereof; provided, however, that you or your Representatives may disclose any of such information to your Representatives (i) who need to know\nsuch information for the sole purpose of evaluating the Transaction, (ii) who are\n1\ninformed by you of the confidential nature of such information, and (iii) who are provided with a copy of this letter agreement and agree to act in\naccordance with its terms as if they were bound hereby or are otherwise bound by a duty of confidentiality. You agree to be responsible to the\nCompany for any breach of this letter agreement by any of your Representatives.\n3. Each of the parties agree that it and its Representatives will not disclose, without the prior written consent of the other party, to any\nother\nperson that the Evaluation Material has been made available to you, that discussions or negotiations are taking or have taken\nplace\nbetween\nthe\nparties concerning the Transaction or any other transaction involving you and the Company, or any of the terms, conditions or other facts with\nrespect thereto (including the status thereof) (the "Discussion Information"), nor will you (or your Representatives) have any communications\nwhatsoever with any other potential purchaser (other than a Permitted Equity Financing Source), concerning the Transaction. The term "person"\nas\nused in this letter agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity.\n4. You agree that for a period of eighteen months following the date of this letter agreement, neither you nor any of your affiliates (as\nsuch term is defined under the Securities Exchange Act of 1934, as amended (the "ExchangeA Act")), who have been provided access to the\nEvaluation Material or have been made aware of the fact that you are or were considering a Transaction shall solicit to employ or employ (a) any\nnow or then current employee of the Company who has participated in discussions contemplated by this letter agreement, (b) any officer of the\nCompany as of the date hereof or (c) any now or then current employee who became known to you in connection with your evaluation of the\nTransaction; provided, however, that the foregoing shall not prevent you from (A) making general public solicitations or advertisements in the\nordinary course of business not targeted directly or indirectly at employees or officers of the Company or (B) responding to any person who contacts\nyou or your affiliates regarding his or her own employment with you or any of your affiliates on his or her own initiative without any direct\nsolicitation by you or any of your affiliates other than any generalized search or ordinary course practice referred to in clause (A) above.\n5. You agree that, for a period ending two years from the date hereof (the "Standstill Period"), neither any Covered Party (as defined\nbelow) nor anyone authorized to act on behalf of any such Covered Party will, directly or indirectly, alone or in concert with others, unless in each\ncase specifically requested in writing to do so by the Company (a) acquire, offer to acquire, or agree to acquire, by purchase or otherwise, ownership\n(including, but not limited to, beneficial ownership as defined in Rule 13d-3 promulgated under the Exchange Act) of more than 1% of any class of\nvoting securities (including securities convertible into more than 1% of any such class of voting securities) ("Voting Securities") issued by the\nCompany or material assets of the Company or any subsidiary of the Company constituting 10% or more of the Company's consolidated assets\n(measured by fair market value) or providing 10% or more of the revenue of the Company, (b) enter, agree to enter, propose, seek or offer to enter\ninto or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving the Company or any of\nits subsidiaries or material assets of the Company or any subsidiary of the Company constituting 10% or more of the Company's consolidated assets\n(measured by fair market value) or providing 10% or more of the revenue of the\n2\nCompany, (c) make, or in any way participate or engage in, any "solicitation" of "proxies" (as such terms are used under the Exchange Act) with\nrespect to the Voting Securities of the Company, or advise or seek to influence any person or entity with respect to the voting of, or giving or\nwithholding of proxies with respect to, any Voting Securities of the Company or any of its subsidiaries, (d) seek or propose to influence or control\n(whether through a "group", as such term is used in Rule 13d-5 promulgated under the Exchange Act, or otherwise) the management, board of\ndirectors, policies or affairs of the Company or any of its subsidiaries, (e) make any request to waive or amend any provision of this paragraph\n(including this clause), (f) take any action that would reasonably be expected to require the Company to make an announcement to the holders of\nits\nsecurities regarding the possibility of a business combination, merger or other type of transaction described in this paragraph with you and/or your\naffiliates (provided that, taking any action to comply with the requirements under applicable law, regulation or legal process (including, but not\nlimited to, rules or regulations of any securities exchange or similar regulatory organization) permitted under Section 6 below shall not be deemed\nto\nbe prohibited by this clause (f)), (g) form, join or in any way participate in a group or act jointly or in concert with others in connection with any of\nthe foregoing, (h) disclose to any person other than your Representatives any intention, plan or arrangement inconsistent with, or prohibited by,\nany\nof the foregoing, or (i) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons\nto\ndo any of the foregoing. Notwithstanding the foregoing (other than clause (f) above), nothing in this letter agreement shall prohibit you from making\na one-time non-public proposal to the Company's board of directors promptly following the completion of the initial due diligence and the meeting\nwith the management (provided that you may make an additional non-public proposal should the Company provide the notification described in the\npenultimate sentence of the next paragraph and (i) such notification occurs prior to the completion of your meeting with management and (ii) you\nmake\nsuch proposal promptly following such notification). The term "Covered Party." shall mean you or any of your affiliates and any Permitted\nEquity Financing Source.\nIf the Company has in effect on the date hereof any agreement, or, during the Standstill Period, enters into or amends any agreement,\nrelating to the provision of non-public information to a person or group in connection with a possible acquisition by such person or group of more\nthan 50% of the Company's Voting Securities through a merger, business combination or other extraordinary transaction (any of the foregoing,\na\n"Business Combination") and such agreement (a "Third Party Agreement") includes a shorter time period than the Standstill Period with respect to\nrestrictions on such other party's acquisitions of the Company's shares, then the Standstill Period set forth in the preceding paragraph shall expire\nupon the expiration of such shorter time period commencing from the date of this letter agreement. In such event, the Company agrees to notify\nyou\npromptly following the earlier expiration of your Standstill Period that the restrictions set forth in the preceding paragraph are no longer applicable\nto\nyou. If the board of directors of the Company is scheduled to meet prior to May 6, 2008 to consider a bona fide proposalfrom a third party with\nrespect to a Business Combination, the Company shal provide you with notice of such meeting not less than one New York business day prior to\nsuch meeting (provided that such notice shall be limited to the fact that the board is considering a bona fide proposal with respect to a Business\nCombination and shall not include the identity of the third party or any proposed term of the Business Combination or any other\n3\ninformation). Any notice required under the immediately preceding sentence shall be made by telephone to Choong-hyun Kim at +82-2-2189-9075\nand in writing by electronic and facsimile transmission (with a copy of such electronic and facsimile transaction to your advisors, Cleary Gottlieb\nSteen & Hamilton LLP (Attention: Victor I. Lewkow (vlewkow@cgsh.com) and Sang Jin Han (shan@cgsh.com); facsimile number: (212) 225-\n3999) and Macquarie Capital (USA) Inc. (Attention: Charles W. Mills (charles.mills@macquarie.com); facsimile number: (404) 815-3430).\n6.\nIn\nthe event that (a) you or any of your Representatives are required to disclose any of the Evaluation Material\nor\n(b)\neither\nparty\nor\nany of its Representatives are required to disclose any of the Discussion Information, in each case, by applicable law, regulation or legal process\n(including, but not limited to, rules or regulations of any securities exchange or similar self-regulatory organization (including by oral questions,\ninterrogatories, requests for information or documents, subpoena, civil investigative demand or similar process)), the disclosing party will promptly\nnotify the other party by telephone (in the case of the Company, Barbara Blackford at (404) 580-3210, David Aldridge at (404) 725-7630 and Justin\nDeedy at (770) 335-4538, and, in the case of you, Choong-hyun Kim at +82-2-2189-9075 and in writing by electronic and facsimile transmission so\nthat the other party may seek a protective order or other appropriate remedy or waive compliance with the applicable provisions of this letter\nagreement by the disclosing party or such of its Representatives (it being understood that, in the case of (b) above, once the disclosing party has\nnotified the other party as provided above, nothing herein shall be deemed to prevent the disclosing party from complying with such requirement in a\ntimely manner). Nothing herein shall be deemed to prevent you or your Representatives, as the case may be, from honoring a subpoena that seeks\ndiscovery of the Evaluation Material or prevent either party or its Representatives from honoring a subpoena that seeks discovery of Discussion\nInformation if (i) a motion for a protective order, motion to quash and/or other motion filed to prevent the production or disclosure of the Evaluation\nMaterial or Discussion Information, as the case may be, has been denied or is not made; provided, however, that you disclose only that portion of the\nEvaluation Material and either party may disclose only that portion of the Discussion Information which such party's outside legal counsel advises is\nlegally required and that such party exercises all reasonable best efforts to preserve the confidentiality of the remainder of the Evaluation Material or\nDiscussion Information, as the case may be; or (ii) the Company consents in writing to having the Evaluation Material or the other party consents\nin\nwriting to having the Discussion Information, as the case may be, produced or disclosed pursuant to the subpoena. In no event will you or any of\nyour\nRepresentatives oppose action by the Company to obtain a protective order or other relief to prevent the disclosure of the Evaluation Material\nor\nDiscussion Information or to obtain reliable assurance that confidential treatment will be afforded the Evaluation Material or Discussion\nInformation.\n7. If you determine not to proceed with the Transaction, you will promptly notify the Company of that decision In that case, or at any\ntime after May 6, 2008 upon the written request of the Company for any reason, you will either (i) promptly destroy all copies of the Evaluation\nMaterial in your or your Representatives' possession or (ii) promptly deliver to the Company at your own expense all remaining copies of\nthe\nEvaluation Material in your or your Representatives' possession, except in either case you may retain such copies as required by applicable law\nor\nregulation. In addition, you agree promptly to certify in writing to the\n4\nCompany that you have complied with your obligations under this paragraph. Notwithstanding the return or destruction of the Evaluation Material,\nyou and your Representatives will continue to be bound by your and their obligations hereunder and any copy of the Evaluation Material permitted\nhereunder to be retained will remain subject to this letter agreement for so long as such Evaluation Material is retained.\n8. You acknowledge that none of the Company or any of its Representatives makes any representation or warranty, express or implied,\nas\nto\nthe\naccuracy\nor\ncompleteness\nof\nthe\nEvaluation\nMaterial.\nNone\nof\nthe\nCompany\nor\nany\nof\nits\nRepresentatives\nshall\nhave\nany\nliability\nor\nobligation\nto you or to any of your Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom.\nOnly those representations or warranties that are made in a final binding written definitive agreement regarding the Transaction between the\nCompany and you (a "Definitive Agreement"), when, as and if executed, and subject to such limitations and restrictions as may be specified therein,\nwill have any legal effect. For purposes of this letter agreement, the term "Definitive Agreement" does not include an executed letter of intent or any\nother preliminary written agreement, nor does it include any written or oral acceptance of any offer or bid made by you.\n9. Each party understands and agrees that no contract or agreement (or agreement to agree) providing for any Transaction between you\nand the Company shall be deemed to exist unless and until a Definitive Agreement has been executed and delivered, and each party hereby waives,\nin advance, any claims (including, without limitation, breach of contract and tortious interference claims) in connection with any Transaction unless\nand until the Parties shall have entered into a Definitive Agreement. The parties also agree that unless and until a Definitive Agreement has been\nexecuted and delivered, neither you nor the Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction\nby virtue of this letter agreement or any other communication except, in the case of this letter agreement, for the matters specifically agreed to\nherein. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all proposals made by you or\nany of your Representatives with regard to a Transaction, terminate discussions and negotiations with you, or refuse to provide any further access to\nEvaluation Material. Neither this paragraph nor any other provision in this letter agreement can be waived or amended except by explicit written\nconsent of each party hereto. Any attempted waiver or modification in violation of this provision shall be void.\n10. It is understood and agreed that no failure or delay by the Company or you in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other\nright, power or privilege hereunder.\n11. Each of the parties acknowledges that money damages would not be a sufficient remedy for any breach of this letter agreement by the\nother party or any of its Representatives and consents to a court of competent jurisdiction entering an order finding that the Company or you, as\napplicable, has been irreparably harmed as a result of any such breach and to the granting of injunctive relief without proof of actual damages as a\nremedy for any such breach Such remedies shall not be deemed to be the exclusive remedies for a breach by a party\n5\nor its Representatives of this letter agreement but shall be in addition to all other remedies available at law or equity. Each of the parties agrees\nto\nwaive, and to cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with such remedy.\n12. This letter agreement and all disputes or controversies arising out of or related to this letter agreement shall be governed by and\nconstrued in accordance with the internal laws of the State of New York, without reference to any conflicts of law principles which would result\nin\nthe application of the laws of another jurisdiction.\n13. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New\nYork and of the United States of America located in the Borough of Manhattan in the City of New York for any actions, suits or proceedings arising\nout of or relating to this letter agreement or the Transaction and agrees (i) not to commence any action, suit or proceeding relating thereto except in\nsuch courts, and (ii) to waive any defenses as to personal jurisdiction of such courts over such party. We agree that service of any process, summons,\nnotice\nor document by facsimile transmission to (770) 657-6479, Attention: Barbara Blackford, (with copy by U.S. registered mail to us at the\naddress set forth above) shall be effective service of process for any action, suit or proceeding brought against us in any such court. You hereby\nirrevocably designate CT Corporation System (in such capacity, the "process agent"), with an office at 111 Eighth Avenue New York, NY 10011,\nas\nyour designee, appointee and agent to receive, for and on your behalf service of process in such jurisdiction in any legal action or proceedings with\nrespect to this letter agreement or the Transaction, and such service shall be deemed complete upon delivery thereof to the process agent; provided\nthat in the case of any such service upon the process agent, we shall also deliver a copy thereof to you by facsimile transmission at +82-2-2189-9129,\nAttention: Choong-hyun Kim (with a copy to Cleary Gottlieb Steen & Hamilton LLP, Attention: Victor I. Lewkow and Sang Jin Han, (212) 225-\n3999. You shall take all such action as may be necessary to continue said appointment in full force and effect or to appoint another agent so that you\nwill at all times have an agent for service of process for the above purposes in New York, New York. Each party hereby irrevocably and\nunconditionally (x) waives any objection to the laying of venue of any action, suit or proceeding arising out of this letter agreement in the courts\nof\nthe State of New York or the United States of America located in the Borough of Manhattan in the City of New York, (y) waives and agrees not\nto\nplead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum, and\n(z) waives, and agrees not to assert in any such court any claim that it or its property is exempt or immune from jurisdiction of any such court\nor\nfrom any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution\nof judgment, execution of judgment or otherwise).\n14. Except as provided in Sections, 5, 6 and 13, any notice or other communication hereunder shall be sufficient if in writing, and sent by\nfacsimile or electronic transmission to, in the case of the Company, (770) 657-6479, Attention: Barbara Blackford, email:\nbarbara.blackford@spsx.com, or, in your case, +82-2-2189-9129, Attention: Choong-hyun Kim, email: kimch@lscable.com.\n6\n15. The provisions of this letter agreement shall be severable in the event that any of the provisions hereof are held by a court of\ncompetent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent\npermitted by law.\n16. This letter agreement represents the entire understanding with respect to the matters contained herein and supersedes all prior\nagreements, arrangements, and understandings between the parties with respect to such matters.\n17. This letter agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed\noriginal, and all such counterparts shall together constitute one and the same instrument.\n18. This letter agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part, by you\nwithout the express written consent of the Company.\n19. Except as otherwise provided in paragraphs 4 and 5 hereof, the term of this letter agreement shall be three years (the "Term"), unless\notherwise agreed in writing by the mutual agreement between you and the Company. If the Company has in effect on the date hereof any Third Party\nAgreement, or, during the Term, enters into or amends any Third Party Agreement, and such Third Party Agreement includes a shorter time period\nthan\nthe Term with respect to the requirement that the non-public information provided by the Company under such Third Party Agreement be kept\nconfidential by the recipient of such information thereunder, then the Term set forth in the preceding sentence shall expire upon the expiration of\nsuch shorter time period commencing from the date of this letter agreement (provided that paragraph 5 will remain in effect for the Standstill Period,\nsubject to modification in accordance with that paragraph). In such event, the Company agrees to notify you promptly following the earlier\nexpiration of your Term of such expiration.\n[Remainder of page intentionally left blank]\n7\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter\nagreement shall become a binding agreement between you and the Company.\nVery truly yours,\nSUPERIOR ESSEX INC.\nBy:\n/s/ David S. Aldridge\nName: David S. Aldridge\nTitle: EVP & CFO\nAccepted and agreed as of the date first written above:\nLS CABLE LTD.\nBy:\n/s/ Choong-hyun Kim\nName: Choong-hyun Kim\nTitle: Senior Vice President	EX-99.(D)(2)(A) 18 dex99d2a.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)(A)\nApril 22, 2008\nLS Cable Ltd.\nASEM Tower, (19-20F) 159\nSamsung-dong, Gangnam-gu\nSeoul 135-090\nKorea\nAttention: Mr. Choong-hyun Kim\nLadies and Gentlemen:\nYou are considering a possible negotiated transaction (the “Transaction”) with Superior Essex Inc. (collectively, with its affiliates,\nsubsidiaries, divisions and its and their predecessors, the “Company”). In connection therewith, the Company is willing to provide you with certain\nnon-public information concerning the Company. You acknowledge that certain of this information is proprietary to the Company and may include\ntrade secrets or other business information the disclosure of which could harm the Company. In consideration of the foregoing, you agree, and you\nagree to cause your directors, officers, employees, agents, advisors (including attorneys, accountants, investment bankers, consultants and any\nrepresentatives of such advisors), potential debt or equity financing sources (provided that such equity financing sources are limited to passive\ninstitutional investors who have executed a separate letter agreement with the Company substantially in the form of this letter agreement (a\n“Permitted Equity Financing Source”)), representatives and affiliates (collectively, “Representatives”), to treat any and all information concerning\nthe Company that is furnished to you or your Representatives (regardless of the manner in which it is furnished) now or in the future by or on behalf\nof the Company, together with any notes, analyses, compilations, studies, interpretations, documents or records containing, referring, relating to,\nbased upon or derived from such information, in whole or in part (collectively, “Evaluation Material”) in accordance with the provisions of this letter\nagreement, and to take or abstain from taking the other actions hereinafter set forth.\n1. The term “Evaluation Material” does not include information that (i) is or has become generally available to the public other than as a\nresult of a direct or indirect disclosure by you or your Representatives in breach of this letter agreement, (ii) was available to you or any of your\nRepresentatives, or has become available to you or any of your Representatives, on a non-confidential basis from a source other than the Company\nor any of its Representatives; provided, that the source of such information was not believed by you after reasonable inquiry to be bound by a\nconfidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information,\nor (iii) you or any of your Representatives independently developed without reference to Evaluation Material or any derivative thereof.\n2. You hereby agree that you will, and will cause your Representatives to, (a) use the Evaluation Material solely for the purpose of\nevaluating and pursuing a Transaction and not for any other purpose, (b) keep the Evaluation Material confidential and (c) not disclose any of the\nEvaluation Material in any manner whatsoever without the prior written consent of the Company or as expressly otherwise permitted by the terms\nhereof; provided, however, that you or your Representatives may disclose any of such information to your Representatives (i) who need to know\nsuch information for the sole purpose of evaluating the Transaction, (ii) who are\n1\ninformed by you of the confidential nature of such information, and (iii) who are provided with a copy of this letter agreement and agree to act in\naccordance with its terms as if they were bound hereby or are otherwise bound by a duty of confidentiality. You agree to be responsible to the\nCompany for any breach of this letter agreement by any of your Representatives.\n3. Each of the parties agree that it and its Representatives will not disclose, without the prior written consent of the other party, to any\nother person that the Evaluation Material has been made available to you, that discussions or negotiations are taking or have taken place between the\nparties concerning the Transaction or any other transaction involving you and the Company, or any of the terms, conditions or other facts with\nrespect thereto (including the status thereof) (the “Discussion Information”), nor will you (or your Representatives) have any communications\nwhatsoever with any other potential purchaser (other than a Permitted Equity Financing Source), concerning the Transaction. The term “person” as\nused in this letter agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity.\n4. You agree that for a period of eighteen months following the date of this letter agreement, neither you nor any of your affiliates (as\nsuch term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), who have been provided access to the\nEvaluation Material or have been made aware of the fact that you are or were considering a Transaction shall solicit to employ or employ (a) any\nnow or then current employee of the Company who has participated in discussions contemplated by this letter agreement, (b) any officer of the\nCompany as of the date hereof or (c) any now or then current employee who became known to you in connection with your evaluation of the\nTransaction; provided, however, that the foregoing shall not prevent you from (A) making general public solicitations or advertisements in the\nordinary course of business not targeted directly or indirectly at employees or officers of the Company or (B) responding to any person who contacts\nyou or your affiliates regarding his or her own employment with you or any of your affiliates on his or her own initiative without any direct\nsolicitation by you or any of your affiliates other than any generalized search or ordinary course practice referred to in clause (A) above.\n5. You agree that, for a period ending two years from the date hereof (the “Standstill Period”), neither any Covered Party (as defined\nbelow) nor anyone authorized to act on behalf of any such Covered Party will, directly or indirectly, alone or in concert with others, unless in each\ncase specifically requested in writing to do so by the Company (a) acquire, offer to acquire, or agree to acquire, by purchase or otherwise, ownership\n(including, but not limited to, beneficial ownership as defined in Rule 13d-3 promulgated under the Exchange Act) of more than 1% of any class of\nvoting securities (including securities convertible into more than 1% of any such class of voting securities) (“Voting Securities”) issued by the\nCompany or material assets of the Company or any subsidiary of the Company constituting 10% or more of the Company’s consolidated assets\n(measured by fair market value) or providing 10% or more of the revenue of the Company, (b) enter, agree to enter, propose, seek or offer to enter\ninto or facilitate any merger, business combination, recapitalization, restructuring or other extraordinary transaction involving the Company or any of\nits subsidiaries or material assets of the Company or any subsidiary of the Company constituting 10% or more of the Company’s consolidated assets\n(measured by fair market value) or providing 10% or more of the revenue of the\n2\nCompany, (c) make, or in any way participate or engage in, any “solicitation” of “proxies” (as such terms are used under the Exchange Act) with\nrespect to the Voting Securities of the Company, or advise or seek to influence any person or entity with respect to the voting of, or giving or\nwithholding of proxies with respect to, any Voting Securities of the Company or any of its subsidiaries, (d) seek or propose to influence or control\n(whether through a “group”, as such term is used in Rule 13d-5 promulgated under the Exchange Act, or otherwise) the management, board of\ndirectors, policies or affairs of the Company or any of its subsidiaries, (e) make any request to waive or amend any provision of this paragraph\n(including this clause), (f) take any action that would reasonably be expected to require the Company to make an announcement to the holders of its\nsecurities regarding the possibility of a business combination, merger or other type of transaction described in this paragraph with you and/or your\naffiliates (provided that, taking any action to comply with the requirements under applicable law, regulation or legal process (including, but not\nlimited to, rules or regulations of any securities exchange or similar regulatory organization) permitted under Section 6 below shall not be deemed to\nbe prohibited by this clause (f)), (g) form, join or in any way participate in a group or act jointly or in concert with others in connection with any of\nthe foregoing, (h) disclose to any person other than your Representatives any intention, plan or arrangement inconsistent with, or prohibited by, any\nof the foregoing, or (i) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons to\ndo any of the foregoing. Notwithstanding the foregoing (other than clause (f) above), nothing in this letter agreement shall prohibit you from making\na one-time non-public proposal to the Company’s board of directors promptly following the completion of the initial due diligence and the meeting\nwith the management (provided that you may make an additional non-public proposal should the Company provide the notification described in the\npenultimate sentence of the next paragraph and (i) such notification occurs prior to the completion of your meeting with management and (ii) you\nmake such proposal promptly following such notification). The term “Covered Party” shall mean you or any of your affiliates and any Permitted\nEquity Financing Source.\nIf the Company has in effect on the date hereof any agreement, or, during the Standstill Period, enters into or amends any agreement,\nrelating to the provision of non-public information to a person or group in connection with a possible acquisition by such person or group of more\nthan 50% of the Company’s Voting Securities through a merger, business combination or other extraordinary transaction (any of the foregoing, a\n“Business Combination”) and such agreement (a “Third Party Agreement”) includes a shorter time period than the Standstill Period with respect to\nrestrictions on such other party’s acquisitions of the Company’s shares, then the Standstill Period set forth in the preceding paragraph shall expire\nupon the expiration of such shorter time period commencing from the date of this letter agreement. In such event, the Company agrees to notify you\npromptly following the earlier expiration of your Standstill Period that the restrictions set forth in the preceding paragraph are no longer applicable to\nyou. If the board of directors of the Company is scheduled to meet prior to May 6, 2008 to consider a bona fide proposalfrom a third party with\nrespect to a Business Combination, the Company shall provide you with notice of such meeting not less than one New York business day prior to\nsuch meeting (provided that such notice shall be limited to the fact that the board is considering a bona fide proposal with respect to a Business\nCombination and shall not include the identity of the third party or any proposed term of the Business Combination or any other\n3\ninformation). Any notice required under the immediately preceding sentence shall be made by telephone to Choong-hyun Kim at +82-2-2189-9075\nand in writing by electronic and facsimile transmission (with a copy of such electronic and facsimile transaction to your advisors, Cleary Gottlieb\nSteen & Hamilton LLP (Attention: Victor I. Lewkow (vlewkow@cgsh.com) and Sang Jin Han (shan@cgsh.com); facsimile number: (212) 225-\n3999) and Macquarie Capital (USA) Inc. (Attention: Charles W. Mills (charles.mills@macquarie.com); facsimile number: (404) 815-3430).\n6. In the event that (a) you or any of your Representatives are required to disclose any of the Evaluation Material or (b) either party or\nany of its Representatives are required to disclose any of the Discussion Information, in each case, by applicable law, regulation or legal process\n(including, but not limited to, rules or regulations of any securities exchange or similar self-regulatory organization (including by oral questions,\ninterrogatories, requests for information or documents, subpoena, civil investigative demand or similar process)), the disclosing party will promptly\nnotify the other party by telephone (in the case of the Company, Barbara Blackford at (404) 580-3210, David Aldridge at (404) 725-7630 and Justin\nDeedy at (770) 335-4538, and, in the case of you, Choong-hyun Kim at +82-2 -2189-9075 and in writing by electronic and facsimile transmission so\nthat the other party may seek a protective order or other appropriate remedy or waive compliance with the applicable provisions of this letter\nagreement by the disclosing party or such of its Representatives (it being understood that, in the case of (b) above, once the disclosing party has\nnotified the other party as provided above, nothing herein shall be deemed to prevent the disclosing party from complying with such requirement in a\ntimely manner). Nothing herein shall be deemed to prevent you or your Representatives, as the case may be, from honoring a subpoena that seeks\ndiscovery of the Evaluation Material or prevent either party or its Representatives from honoring a subpoena that seeks discovery of Discussion\nInformation if (i) a motion for a protective order, motion to quash and/or other motion filed to prevent the production or disclosure of the Evaluation\nMaterial or Discussion Information, as the case may be, has been denied or is not made; provided, however, that you disclose only that portion of the\nEvaluation Material and either party may disclose only that portion of the Discussion Information which such party’s outside legal counsel advises is\nlegally required and that such party exercises all reasonable best efforts to preserve the confidentiality of the remainder of the Evaluation Material or\nDiscussion Information, as the case may be; or (ii) the Company consents in writing to having the Evaluation Material or the other party consents in\nwriting to having the Discussion Information, as the case may be, produced or disclosed pursuant to the subpoena. In no event will you or any of\nyour Representatives oppose action by the Company to obtain a protective order or other relief to prevent the disclosure of the Evaluation Material\nor Discussion Information or to obtain reliable assurance that confidential treatment will be afforded the Evaluation Material or Discussion\nInformation.\n7. If you determine not to proceed with the Transaction, you will promptly notify the Company of that decision. In that case, or at any\ntime after May 6, 2008 upon the written request of the Company for any reason, you will either (i) promptly destroy all copies of the Evaluation\nMaterial in your or your Representatives’ possession or (ii) promptly deliver to the Company at your own expense all remaining copies of the\nEvaluation Material in your or your Representatives’ possession, except in either case you may retain such copies as required by applicable law or\nregulation. In addition, you agree promptly to certify in writing to the\n4\nCompany that you have complied with your obligations under this paragraph. Notwithstanding the return or destruction of the Evaluation Material,\nyou and your Representatives will continue to be bound by your and their obligations hereunder and any copy of the Evaluation Material permitted\nhereunder to be retained will remain subject to this letter agreement for so long as such Evaluation Material is retained.\n8. You acknowledge that none of the Company or any of its Representatives makes any representation or warranty, express or implied, as\nto the accuracy or completeness of the Evaluation Material. None of the Company or any of its Representatives shall have any liability or obligation\nto you or to any of your Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom.\nOnly those representations or warranties that are made in a final binding written definitive agreement regarding the Transaction between the\nCompany and you (a “Definitive Agreement”), when, as and if executed, and subject to such limitations and restrictions as may be specified therein,\nwill have any legal effect. For purposes of this letter agreement, the term “Definitive Agreement” does not include an executed letter of intent or any\nother preliminary written agreement, nor does it include any written or oral acceptance of any offer or bid made by you.\n9. Each party understands and agrees that no contract or agreement (or agreement to agree) providing for any Transaction between you\nand the Company shall be deemed to exist unless and until a Definitive Agreement has been executed and delivered, and each party hereby waives,\nin advance, any claims (including, without limitation, breach of contract and tortious interference claims) in connection with any Transaction unless\nand until the Parties shall have entered into a Definitive Agreement. The parties also agree that unless and until a Definitive Agreement has been\nexecuted and delivered, neither you nor the Company will be under any legal obligation of any kind whatsoever with respect to such a Transaction\nby virtue of this letter agreement or any other communication except, in the case of this letter agreement, for the matters specifically agreed to\nherein. The Company reserves the right at any time, in its sole discretion, for any reason or no reason, to reject any and all proposals made by you or\nany of your Representatives with regard to a Transaction, terminate discussions and negotiations with you, or refuse to provide any further access to\nEvaluation Material. Neither this paragraph nor any other provision in this letter agreement can be waived or amended except by explicit written\nconsent of each party hereto. Any attempted waiver or modification in violation of this provision shall be void.\n10. It is understood and agreed that no failure or delay by the Company or you in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other\nright, power or privilege hereunder.\n11. Each of the parties acknowledges that money damages would not be a sufficient remedy for any breach of this letter agreement by the\nother party or any of its Representatives and consents to a court of competent jurisdiction entering an order finding that the Company or you, as\napplicable, has been irreparably harmed as a result of any such breach and to the granting of injunctive relief without proof of actual damages as a\nremedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach by a party\n5\nor its Representatives of this letter agreement but shall be in addition to all other remedies available at law or equity. Each of the parties agrees to\nwaive, and to cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with such remedy.\n12. This letter agreement and all disputes or controversies arising out of or related to this letter agreement shall be governed by and\nconstrued in accordance with the internal laws of the State of New York, without reference to any conflicts of law principles which would result in\nthe application of the laws of another jurisdiction.\n13. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New\nYork and of the United States of America located in the Borough of Manhattan in the City of New York for any actions, suits or proceedings arising\nout of or relating to this letter agreement or the Transaction and agrees (i) not to commence any action, suit or proceeding relating thereto except in\nsuch courts, and (ii) to waive any defenses as to personal jurisdiction of such courts over such party. We agree that service of any process, summons,\nnotice or document by facsimile transmission to (770) 657-6479, Attention: Barbara Blackford, (with copy by U.S . registered mail to us at the\naddress set forth above) shall be effective service of process for any action, suit or proceeding brought against us in any such court. You hereby\nirrevocably designate CT Corporation System (in such capacity, the “process agent”), with an office at 111 Eighth Avenue New York, NY 10011, as\nyour designee, appointee and agent to receive, for and on your behalf service of process in such jurisdiction in any legal action or proceedings with\nrespect to this letter agreement or the Transaction, and such service shall be deemed complete upon delivery thereof to the process agent; provided\nthat in the case of any such service upon the process agent, we shall also deliver a copy thereof to you by facsimile transmission at +82-2 -2189 -9129,\nAttention: Choong-hyun Kim (with a copy to Cleary Gottlieb Steen & Hamilton LLP, Attention: Victor I. Lewkow and Sang Jin Han, (212) 225-\n3999. You shall take all such action as may be necessary to continue said appointment in full force and effect or to appoint another agent so that you\nwill at all times have an agent for service of process for the above purposes in New York, New York. Each party hereby irrevocably and\nunconditionally (x) waives any objection to the laying of venue of any action, suit or proceeding arising out of this letter agreement in the courts of\nthe State of New York or the United States of America located in the Borough of Manhattan in the City of New York, (y) waives and agrees not to\nplead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum, and\n(z) waives, and agrees not to assert in any such court any claim that it or its property is exempt or immune from jurisdiction of any such court or\nfrom any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution\nof judgment, execution of judgment or otherwise).\n14. Except as provided in Sections, 5, 6 and 13, any notice or other communication hereunder shall be sufficient if in writing, and sent by\nfacsimile or electronic transmission to, in the case of the Company, (770) 657-6479, Attention: Barbara Blackford, email:\nbarbara.blackford@spsx.com, or, in your case, +82-2-2189-9129, Attention: Choong-hyun Kim, email: kimch@lscable.com .\n6\n15. The provisions of this letter agreement shall be severable in the event that any of the provisions hereof are held by a court of\ncompetent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent\npermitted by law.\n16. This letter agreement represents the entire understanding with respect to the matters contained herein and supersedes all prior\nagreements, arrangements, and understandings between the parties with respect to such matters.\n17. This letter agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed\noriginal, and all such counterparts shall together constitute one and the same instrument.\n18. This letter agreement and the rights and obligations herein may not be assigned or otherwise transferred, in whole or in part, by you\nwithout the express written consent of the Company.\n19. Except as otherwise provided in paragraphs 4 and 5 hereof, the term of this letter agreement shall be three years (the “Term”), unless\notherwise agreed in writing by the mutual agreement between you and the Company. If the Company has in effect on the date hereof any Third Party\nAgreement, or, during the Term, enters into or amends any Third Party Agreement, and such Third Party Agreement includes a shorter time period\nthan the Term with respect to the requirement that the non-public information provided by the Company under such Third Party Agreement be kept\nconfidential by the recipient of such information thereunder, then the Term set forth in the preceding sentence shall expire upon the expiration of\nsuch shorter time period commencing from the date of this letter agreement (provided that paragraph 5 will remain in effect for the Standstill Period,\nsubject to modification in accordance with that paragraph). In such event, the Company agrees to notify you promptly following the earlier\nexpiration of your Term of such expiration.\n[Remainder of page intentionally left blank]\n7\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter\nagreement shall become a binding agreement between you and the Company.\nVery truly yours,\nSUPERIOR ESSEX INC.\nBy: /s/ David S. Aldridge\nName: David S. Aldridge\nTitle: EVP & CFO\nAccepted and agreed as of the date first written above:\nLS CABLE LTD.\nBy: /s/ Choong-hyun Kim\nName: Choong-hyun Kim\nTitle: Senior Vice President
+4211392caaa68235bda27fe40fcf9212.pdf	effective_date jurisdiction party term	EX-10.35 9 dex1035.htm NON-COMPETITION, NON-SOLICITATION, NON-DISPARAGEMENT &\nCONFIDENTIALITY AGREEMENT\nExhibit 10.35\nNON-COMPETITION, NON-SOLICITATION, NON-DISPARAGEMENT AND\nCONFIDENTIALITY AGREEMENT\n[name of employee]:\nYRC Worldwide Inc., a Delaware corporation (“YRCW”), has determined that you are important to the operation of the business of YRCW\nand its subsidiaries (collectively, the “Company”). As a key employee, in the course of your work, you will, or have, become aware of information of\na confidential nature pertaining to the business of the Company. The Company maintains policies and procedures with respect to the use and the\ndissemination of confidential information. Your employment creates a relationship of confidence and trust between you and the Company with\nrespect to any information applicable to the business of the Company which may be, or has been, made known to you by the Company or learned by\nyou in the course of your work. You understand that you have an obligation to preserve the confidentiality of this information and use it only for the\npurpose for which it was obtained. To further protect this confidential information and to prevent you from using this information and your skills\ngained in the course of your employment with the Company in competition with the Company, YRCW desires to provide you Consideration (defined\nbelow) to obtain your agreement not to compete with the Company and to abide by the other covenants in this agreement as described in the terms of\nthis agreement below.\nIn exchange for the payments of Consideration to you and other good and valuable consideration, the receipt and adequacy of which are hereby\nacknowledged, you understand and agree that your undertakings set forth below are material and essential terms to YRCW, and accordingly you\nexpressly agree that:\n1. Non-Competition. You acknowledge that the agreements and covenants contained in this Section 1 are essential to protect the value of the\nbusiness and assets of the Company and by your prior and continued employment with the Company you have obtained, and will continue to\nobtain, valuable confidential information, knowledge, contacts and experience, and there is a substantial probability that this confidential\ninformation, knowledge, contacts and experience could be used to the substantial advantage of a competitor of the Company to the Company’s\nsubstantial detriment. Therefore, you agree that so long as the Company employs you and during the Restricted Period (defined below), you\nshall not, and shall cause your controlled affiliates not to, directly or indirectly (other than in your capacity as an employee of the Company),\nown, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary,\nfinancial, or otherwise), or participate in the ownership, management, operation, or control of any business of providing products or services of\nthe same or similar type as the products or services sold or delivered (or, pursuant to an existing business plan, will be sold or delivered) to\ncustomers of the Company (the “Business”) in any geographic region for which you had direct or indirect responsibility on behalf of the\nCompany or in any geographic region for which you had confidential information of the Company. It shall not be a violation of Sections 1 or 2\nif you become the registered or beneficial owner of up to 5% of any class of the capital stock of a business that is either registered under the\nSecurities Exchange Act of 1934, as amended, or is traded on any foreign stock exchange or if you become employed by or maintain an\ninterest in a law, accounting, consulting or financial advisory firm so long as you do not personally provide advice or services to a competitor\nof the Company as an employee or interest owner during the Restricted Period. For the purposes of this agreement, the “Restricted Period”\nmeans the period commencing as of the day of your termination of employment with the Company, whether with or without Cause and\nwhether before or after receipt of the Consideration (defined below), and ending three months following termination of your employment with\nthe Company; provided that the Restricted Period may be extended to either six or nine months following termination of your employment\nwith YRCW and any of its subsidiaries in accordance with Section 5.\n2. Non-Solicitation. During the Restricted Period, you shall not and shall cause your controlled affiliates not to (other than in your capacity as an\nemployee of the Company):\na.\ncause, solicit, induce or encourage any employees, consultants or contractors of the Company to leave their respective\nemployment or service with the Company,\nb.\nsolicit the employment of, or hire, employ or otherwise engage any employee of the Company; provided that it shall not be a\nviolation of this Section 2(b) for an employer that you work for or for a firm in which you maintain an interest to have hired an\nemployee of the Company without your knowledge or participation,\nc.\ncause, induce, or encourage any actual or prospective client, customer, supplier or licensor of the Company (including any\nexisting or former customers of the Company) to terminate or modify any actual or prospective business relationship with the\nCompany, and\nd.\ndevelop a business relationship with any actual or prospective client, customer, supplier or licensor to cause, induce, or encourage\nsuch individual to become a client, customer, supplier, or licensor of any business in which you are engaged that is competitive\nwith the Business.\nThe restrictions relating to actual or prospective clients, customers, suppliers or licensors in this Section 2 apply only to:\nA.\nthose actual or prospective clients, customers, suppliers or licensors with whom you had contact on behalf of the Company during\nthe last 12 months of your employment with the Company, or\nB.\nany of the Company’s actual or prospective clients, customers, suppliers or licensors about whom you had any confidential\ninformation during the last 12 months of your employment with the Company.\nIn no event shall it be a violation of this Section 2 to engage in solicitations incidental to general advertising or other general solicitation in the\nordinary course not specifically targeted at such persons or to employ any person not solicited in violation of this agreement.\n3. Non-Disparagement. You agree that, during your employment with the Company or at any time during the Restricted Period, you shall not\nmake any public statement that is materially disparaging of the business of the Company, or to the business reputation of any of the executive\nofficers of the Company or any of the employees of the Company who are known to you to be employees of the Company at the time of any\nsuch public statement. Your obligations under this Section 3 shall not apply to disclosures required by applicable law, regulation, or order of a\ncourt or governmental agency.\n4. Confidentiality. All information related to the business of the Company that may be obtained by you from any source as a result of your\nemployment shall be considered as confidential. Materials contained in the Company’s customers’ files should always be regarded as\nconfidential. You should always maintain appropriate administrative, technical and physical safeguards over records in your possession to\nprevent unauthorized access. Information regarding strategic or tactical business plans; undisclosed business, operational or financial data;\nideas, processes, methods, techniques, systems, non-public information, models, devices, programs, computer software or related information;\ndocuments relating to regulatory matters or correspondence with governmental entities; undisclosed information concerning any past, pending,\nor threatened legal dispute; pricing or cost data; the identity, reports or analysis of business prospects; business transactions that are\ncontemplated or planned; research data; personnel information or data; identities of users or purchasers of the Company’s products or services;\nor any business methods, operations, or results of the Company may not be disclosed to competitors, to the public, or to any person, nor can\nthe preceding information be otherwise used except as your duties at the Company may require or with the prior written approval of an\nauthorized officer of YRCW. This applies to the period of your employment and thereafter. Trade practices, procedures, software or other\nstrategies which you develop in the course of performing responsibilities or using Company equipment or facilities are the property of the\nCompany. Upon termination of your employment with the Company, you are required to deliver to the Company all documents, recordings and\nother tangible records (including tapes, discs or other similar media) that contain or are derived from the Company’s confidential information.\nConfidential information of the Company does not include information that:\na.\nbecomes generally available to the public other than as a result of your disclosure in violation of this agreement,\nb.\nbecomes available to you on a non-confidential basis from a source other than the Company, provided that you do not know the\nsource to be subject to another confidentiality agreement with, another obligation of secrecy to, or a fiduciary duty of\nconfidentiality to, the Company with respect to the information; or\nc.\nyou independently develop without use of confidential information of the Company.\nIf you have acted in the capacity of legal counsel to the Company, it shall not be a violation of this Section 4 if you maintain one copy of any\nof the legal files with respect to the advice that you provided while the Company employed you, subject to the code of conduct or ethics of the\nstate in which you are licensed for the purpose of assisting the Company with questions regarding those files after your employment.\n5. Consideration.\na.\nInitial Consideration. Subject to the terms and restrictions set forth in this paragraph, YRCW shall pay you an amount (the\n“Consideration”) equal to one-third of your base salary on January 2, 2010; provided, that the Company still employs you on\nJanuary 2, 2010. If your employment with the Company ends as a result of your resignation for any reason (other than your\nresignation following an event that is deemed termination for Cause as described below in this Section 5) or your termination by\nthe Company with Cause, in each case, before March 31, 2010, YRCW shall not be required to pay to you the January 2, 2010\npayment or any future payments under this agreement, and you shall return the January 2, 2010 payment. If the Company\nterminates your employment without Cause or by reason of your death or permanent and total disability before the January 2,\n2010 payment is made, YRCW shall pay to you or your estate all unpaid Consideration on the date that is six months following\nyour termination by the Company without Cause; provided, that you have not breached any applicable provision of this\nagreement, in which case the remaining payments of the Consideration will not be made, and YRCW shall withhold payment of\nthe remaining payments of the Consideration as damages for any such breach.\nb.\nFirst Extension. On April 1, 2009, the Restricted Period shall be extended from three to six months following your termination of\nemployment with the Company unless the Board of Directors of YRCW (the “Board”) votes to cancel this extension or you\nnotify the Company in writing that you have cancelled this extension, in each case, prior to April 1, 2009. If this extension is\neffected, subject to the terms and restrictions set forth in this Section 5(b), YRCW shall pay you additional Consideration in an\namount equal to one-third of your base salary on April 1, 2010; provided, that the Company still employs you on April 1, 2010. If\nyour employment with the Company ends as a result of your resignation for any reason (other than your resignation following an\nevent that is deemed termination for Cause as described below in this Section 5) or the Company terminates your employment\nwith Cause, in each case, before June 30, 2010, YRCW shall not be required to pay to you the April 1, 2010 payment or any\nfuture payments under this agreement, and you shall return the April 1, 2010 payment. If the Company terminates your\nemployment without Cause or by reason of your death or permanent and total disability before the April 1, 2010 payment is\nmade, YRCW shall pay to you or your estate all unpaid Consideration on the date that is six months following your termination\nby the Company without Cause; provided, that you have not breached any applicable provision of this agreement, in which case\nthe remaining payments of the Consideration will not be made, and YRCW shall withhold payment of the remaining payments of\nthe Consideration as damages for any such breach.\nc.\nSecond Extension. If the Restricted Period has been extended pursuant to Section 5(b), then on July 1, 2009, the Restricted Period\nshall be extended again from six to nine months following your termination of employment with the Company unless the Board\nvotes to cancel this extension or you notify the Company in writing that you have cancelled this extension, in each case, prior to\nJuly 1, 2009. If this extension is effected, subject to the terms and restrictions set forth in this Section 5(c), YRCW shall pay you\nadditional Consideration in an amount equal to one-third of your base salary on July 1, 2010; provided, that the Company still\nemploys you on July 1, 2010. If your employment with the Company ends as a result of your resignation for any reason (other\nthan your resignation following an event that is deemed termination for Cause as described below in this Section 5) or your\ntermination by the Company with Cause, in each case, before September 30, 2010, YRCW shall not be required to pay to you the\nJuly 1, 2010 payment or any future payments under this agreement, and you shall return the July 1, 2010 payment. If the\nCompany terminates your employment without Cause or by reason of your death or permanent and total disability before the\nJuly 1, 2010 payment is made, YRCW shall pay to you or your estate all unpaid Consideration on the date that is six months\nfollowing your termination by YRCW without Cause; provided, that you have not breached any applicable provision of this\nagreement, in which case the remaining payments of the Consideration will not be made, and YRCW shall withhold payment of\nthe remaining payments of the Consideration as damages for any such breach.\nYRCW shall deduct from any of the payments under this Section 5 any applicable withholding taxes under federal and state law. For the\npurposes of this agreement, you shall be considered “permanently and totally disabled” if you are unable to engage in any substantial\ngainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be\nexpected to last for a continuous period of not less than 12 months or is, by reason of any medically determinable physical or mental\nimpairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving\nincome replacement benefits for a period of not less than three months under an accident and health plan covering employees of the\nCompany. “Cause” shall mean any of the following:\na.\nyour conviction of a felony involving acts of dishonesty, fraud or moral turpitude;\nb.\nyour willful and repeated failure to perform your duties following 30 days notice of the failure and your failure to cure within the\n30-day period;\nc.\nwillful misconduct material to your employment;\nd.\nyour willful material breach of Company policies or rules of which you have been made aware following 30 days notice of the\nbreach and your failure to cure within the 30-day period;\ne.\nyour willful, material and demonstrable dishonesty related to your employment; or\nf.\ngross negligence in the performance of your job duties.\nFor purposes of this agreement, no act, or failure to act, on your part shall be deemed “willful” or engaged in “willfully” if it was due primarily\nto an error in judgment or negligence, but shall be deemed “willful” or engaged in “willfully” only if done, or omitted to be done, by you not in\ngood faith and without reasonable belief that your action or omission was in the best interest of the Company.\nIf you resign following one or more of the following events, the Company shall be deemed to have terminated you without Cause for the\npurposes of this agreement:\na.\nthe Company relocates your principal place of performance of your duties and responsibilities (“employment domicile”) to a\nlocation more than 50 miles from the your current employment domicile;\nb.\nthe Company requires you to travel in excess more than 15% more than you traveled for the business of the Company in the\npreceding 12 months (counting each day or partial day of travel outside of the 100 mile radius of your current employment\ndomicile as a travel day); or\nc.\nthe Company reduces your base salary, bonus opportunity or long-term incentive opportunity other than reductions that are\napplicable to all similarly situated executives.\n6. Reasonableness and Damages. You agree that the above obligations and covenants are reasonable in duration and scope, and agree that any\nagreed upon arbitration panel or court of competent jurisdiction may reform those obligations to the extent necessary to enforce them under\napplicable law. You further agree and acknowledge that violation of these obligations and covenants would cause immeasurable and\nirreparable damage to the Company. Accordingly, you agree that upon any violation of any of these obligations and covenants:\na.\nyou are required to return all Consideration to YRCW, and\nb.\nYRCW is entitled to withhold payment of any future payments of the Consideration, to injunctive relief in any court of competent\njurisdiction (without the necessity of posting a bond or other security with respect to the injunctive relief) and to any other\nremedies it may have.\nIn addition, you agree that upon any threatened violation of any of these obligations and covenants:\na.\nYRCW is entitled to withhold payment of the Consideration until any dispute regarding your threatened violation is resolved, and\nb.\nYRCW is entitled to injunctive relief in any court of competent jurisdiction to prevent the violation, without the necessity of\nposting a bond or other security with respect to the injunctive relief.\nIf you are required to return any of the Consideration pursuant to this agreement, YRCW shall use its reasonable best efforts to reverse any federal or\nstate withholding taxes made on your behalf prior to requesting the return of that portion of the Consideration from you. The provisions of this\nagreement are in addition to the provisions in any written employment agreement between the Company and you, and will not affect the\nresponsibilities or any other rights of you or the Company under those agreements. This agreement is not a contract of continuing employment.\nEmployment is for no fixed term, and either you or the Company may decide to terminate the employment relationship at any time for any reason.\nThis agreement is intended to meet the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and shall be\nadministered in a manner that is intended to meet those requirements and shall be construed and interpreted in accordance with such intent. To the\nextent that a payment is subject to the excise taxes that Section 409A of the Code imposes, the Company shall make the payment or defer it in a\nmanner that will meet the requirements of Section 409A of the Code, including regulations or other guidance issued with respect thereto, such that\nthe payment or deferral shall not be subject to the excise tax applicable under Section 409A of the Code.\nUnless this agreement expressly states to the contrary, references to “Sections” in this agreement mean the sections and subsections of this\nagreement, and capitalized terms that this agreement defines shall have the meanings that this agreement gives to each of them for the purposes of\nthis agreement.\nThis agreement shall be governed by Kansas law, without regard to its choice of law principles, and will be binding on you, your heirs, executors,\nassigns, and administrators, and shall inure to the benefit of YRCW, its successors and assigns, and shall survive the termination of your employment\nwith the Company, regardless of the manner of such termination.\nEach provision of this agreement will be interpreted on its own. If any provision is held to be unenforceable as written, it will be enforced to the\nextent reasonable under the circumstances. In any case, the other provisions of this agreement will not be affected.\nThis agreement constitutes the entire agreement among the parties and supersedes all prior agreements or understandings, if any, whether oral or\nwritten, with regard to the subject matter hereof. This agreement is an integrated document and may not be modified or amended except in a writing\nsigned by the parties hereto or their successors in interest.\n[For Sheila K. Taylor: This agreement amends and restates YRCW’s prior agreement with you dated December 18, 2008, in its entirety.\nNotwithstanding anything in this agreement to the contrary, if you have not received Consideration of at least $159,024 (the “Prior Agreement\nAmount”) on or before July 1, 2010, you shall receive a payment, if any, equal to the excess (the “Excess”) of the Prior Agreement Amount over the\namounts paid to you on or before July 1, 2010 so long as you remain employed with the Company on July 1, 2010; provided that if the Company\nterminates you without Cause or if you die or become permanently and totally disability before the July 1, 2010 payment is made, YRCW shall pay\nto you or your estate all unpaid Consideration on the date that is six months following your termination by YRCW without Cause; provided, further,\nthat you have not breached any applicable provision of this agreement, in which case the remaining payments of the Consideration will not be made,\nand YRCW shall withhold payment of the remaining payments of the Consideration as damages for any such breach. If your employment with the\nCompany ends as a result of your resignation for any reason (other than your resignation following an event that is deemed termination for Cause as\ndescribed below in Section 5) or your termination by the Company with Cause, in each case, before July 1, 2010, YRCW shall not be required to pay\nto you the Excess Amount or any future payments under this agreement, and you shall return the payment of the Excess Amount. For the avoidance\nof doubt, the portion of the Consideration paid to you up to the Prior Agreement Amount is part of, and not in addition to, the total Consideration\nthat YRCW pays you pursuant to this agreement.]\nYRCW hereby agrees to the terms and conditions of this agreement:\nYRC Worldwide Inc.\nBy:\nName:\nTitle:\nI have signed and dated this agreement below to indicate my acceptance of its provisions and to acknowledge that I have received a copy of\nthis agreement.\n[employee name]\nDate:	EX-10.35 9 dex1035.htm NON-COMPETITION, NON-SOLICITATION, NON-DISPARAGEMENT &\nCONFIDENTIALITY AGREEMENT\nExhibit 10.35\nNON-COMPETITION, NON-SOLICITATION, NON-DISPARAGEMENT AND\nCONFIDENTIALITY AGREEMENT\n[name of employee]:\nYRC Worldwide Inc., a Delaware corporation (“YRCW?”), has determined that you are important to the operation of the business of YRCW\nand its subsidiaries (collectively, the “Company”). As a key employee, in the course of your work, you will, or have, become aware of information of\na confidential nature pertaining to the business of the Company. The Company maintains policies and procedures with respect to the use and the\ndissemination of confidential information. Your employment creates a relationship of confidence and trust between you and the Company with\nrespect to any information applicable to the business of the Company which may be, or has been, made known to you by the Company or learned by\nyou in the course of your work. You understand that you have an obligation to preserve the confidentiality of this information and use it only for the\npurpose for which it was obtained. To further protect this confidential information and to prevent you from using this information and your skills\ngained in the course of your employment with the Company in competition with the Company, YRCW desires to provide you Consideration (defined\nbelow) to obtain your agreement not to compete with the Company and to abide by the other covenants in this agreement as described in the terms of\nthis agreement below.\nIn exchange for the payments of Consideration to you and other good and valuable consideration, the receipt and adequacy of which are hereby\nacknowledged, you understand and agree that your undertakings set forth below are material and essential terms to YRCW, and accordingly you\nexpressly agree that:\n1.  Non-Competition. You acknowledge that the agreements and covenants contained in this Section 1 are essential to protect the value of the\nbusiness and assets of the Company and by your prior and continued employment with the Company you have obtained, and will continue to\nobtain, valuable confidential information, knowledge, contacts and experience, and there is a substantial probability that this confidential\ninformation, knowledge, contacts and experience could be used to the substantial advantage of a competitor of the Company to the Company’s\nsubstantial detriment. Therefore, you agree that so long as the Company employs you and during the Restricted Period (defined below), you\nshall not, and shall cause your controlled affiliates not to, directly or indirectly (other than in your capacity as an employee of the Company),\nown, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary,\nfinancial, or otherwise), or participate in the ownership, management, operation, or control of any business of providing products or services of\nthe same or similar type as the products or services sold or delivered (or, pursuant to an existing business plan, will be sold or delivered) to\ncustomers of the Company (the “Business”) in any geographic region for which you had direct or indirect responsibility on behalf of the\nCompany or in any geographic region for which you had confidential information of the Company. It shall not be a violation of Sections 1 or 2\nif you become the registered or beneficial owner of up to 5% of any class of the capital stock of a business that is either registered under the\nSecurities Exchange Act of 1934, as amended, or is traded on any foreign stock exchange or if you become employed by or maintain an\ninterest in a law, accounting, consulting or financial advisory firm so long as you do not personally provide advice or services to a competitor\nof the Company as an employee or interest owner during the Restricted Period. For the purposes of this agreement, the “Restricted Period”\nmeans the period commencing as of the day of your termination of employment with the Company, whether with or without Cause and\nwhether before or after receipt of the Consideration (defined below), and ending three months following termination of your employment with\nthe Company; provided that the Restricted Period may be extended to either six or nine months following termination of your employment\nwith YRCW and any of its subsidiaries in accordance with Section 5.\n2. Non-Solicitation. During the Restricted Period, you shall not and shall cause your controlled affiliates not to (other than in your capacity as an\nemployee of the Company):\na. cause, solicit, induce or encourage any employees, consultants or contractors of the Company to leave their respective\nemployment or service with the Company,\nb. solicit the employment of, or hire, employ or otherwise engage any employee of the Company; provided that it shall not be a\nviolation of this Section 2(b) for an employer that you work for or for a firm in which you maintain an interest to have hired an\nemployee of the Company without your knowledge or participation,\nC. cause, induce, or encourage any actual or prospective client, customer, supplier or licensor of the Company (including any\nexisting or former customers of the Company) to terminate or modify any actual or prospective business relationship with the\nCompany, and\nd. develop a business relationship with any actual or prospective client, customer, supplier or licensor to cause, induce, or encourage\nsuch individual to become a client, customer, supplier, or licensor of any business in which you are engaged that is competitive\nwith the Business.\nThe restrictions relating to actual or prospective clients, customers, suppliers or licensors in this Section 2 apply only to:\nA. those actual or prospective clients, customers, suppliers or licensors with whom you had contact on behalf of the Company during\nthe last 12 months of your employment with the Company, or\nB. any of the Company’s actual or prospective clients, customers, suppliers or licensors about whom you had any confidential\ninformation during the last 12 months of your employment with the Company.\nIn no event shall it be a violation of this Section 2 to engage in solicitations incidental to general advertising or other general solicitation in the\nordinary course not specifically targeted at such persons or to employ any person not solicited in violation of this agreement.\n3.  Non-Disparagement. You agree that, during your employment with the Company or at any time during the Restricted Period, you shall not\nmake any public statement that is materially disparaging of the business of the Company, or to the business reputation of any of the executive\nofficers of the Company or any of the employees of the Company who are known to you to be employees of the Company at the time of any\nsuch public statement. Your obligations under this Section 3 shall not apply to disclosures required by applicable law, regulation, or order of a\ncourt or governmental agency.\n4.  Confidentiality. All information related to the business of the Company that may be obtained by you from any source as a result of your\nemployment shall be considered as confidential. Materials contained in the Company’s customers’ files should always be regarded as\nconfidential. You should always maintain appropriate administrative, technical and physical safeguards over records in your possession to\nprevent unauthorized access. Information regarding strategic or tactical business plans; undisclosed business, operational or financial data;\nideas, processes, methods, techniques, systems, non-public information, models, devices, programs, computer software or related information;\ndocuments relating to regulatory matters or correspondence with governmental entities; undisclosed information concerning any past, pending,\nor threatened legal dispute; pricing or cost data; the identity, reports or analysis of business prospects; business transactions that are\ncontemplated or planned; research data; personnel information or data; identities of users or purchasers of the Company’s products or services;\nor any business methods, operations, or results of the Company may not be disclosed to competitors, to the public, or to any person, nor can\nthe preceding information be otherwise used except as your duties at the Company may require or with the prior written approval of an\nauthorized officer of YRCW. This applies to the period of your employment and thereafter. Trade practices, procedures, software or other\nstrategies which you develop in the course of performing responsibilities or using Company equipment or facilities are the property of the\nCompany. Upon termination of your employment with the Company, you are required to deliver to the Company all documents, recordings and\nother tangible records (including tapes, discs or other similar media) that contain or are derived from the Company’s confidential information.\nConfidential information of the Company does not include information that:\na. becomes generally available to the public other than as a result of your disclosure in violation of this agreement,\nC. becomes available to you on a non-confidential basis from a source other than the Company, provided that you do not know the\nsource to be subject to another confidentiality agreement with, another obligation of secrecy to, or a fiduciary duty of\nconfidentiality to, the Company with respect to the information; or\nyou independently develop without use of confidential information of the Company.\nIf you have acted in the capacity of legal counsel to the Company, it shall not be a violation of this Section 4 if you maintain one copy of any of the legal files with respect to the advice that you provided while the Company employed you, subject to the code of conduct or ethics of the state in which you are licensed for the purpose of assisting the Company with questions regarding those files after your employment. Consideration. d. Initial Consideration. Subject to the terms and restrictions set forth in this paragraph, YRCW shall pay you an amount (the\n“Consideration”) equal to one-third of your base salary on January 2, 2010; provided, that the Company still employs you on\nJanuary 2, 2010. If your employment with the Company ends as a result of your resignation for any reason (other than your\nresignation following an event that is deemed termination for Cause as described below in this Section 5) or your termination by\nthe Company with Cause, in each case, before March 31, 2010, YRCW shall not be required to pay to you the January 2, 2010\npayment or any future payments under this agreement, and you shall return the January 2, 2010 payment. If the Company\nterminates your employment without Cause or by reason of your death or permanent and total disability before the January 2,\n2010 payment is made, YRCW shall pay to you or your estate all unpaid Consideration on the date that is six months following\nyour termination by the Company without Cause; provided, that you have not breached any applicable provision of this\nagreement, in which case the remaining payments of the Consideration will not be made, and YRCW shall withhold payment of\nthe remaining payments of the Consideration as damages for any such breach.\nb. First Extension. On April 1, 2009, the Restricted Period shall be extended from three to six months following your termination of\nemployment with the Company unless the Board of Directors of YRCW (the “Board”) votes to cancel this extension or you\nnotify the Company in writing that you have cancelled this extension, in each case, prior to April 1, 2009. If this extension is\neffected, subject to the terms and restrictions set forth in this Section 5(b), YRCW shall pay you additional Consideration in an\namount equal to one-third of your base salary on April 1, 2010; provided, that the Company still employs you on April 1, 2010. If\nyour employment with the Company ends as a result of your resignation for any reason (other than your resignation following an\nevent that is deemed termination for Cause as described below in this Section 5) or the Company terminates your employment\nwith Cause, in each case, before June 30, 2010, YRCW shall not be required to pay to you the April 1, 2010 payment or any\nfuture payments under this agreement, and you shall return the April 1, 2010 payment. If the Company terminates your\nemployment without Cause or by reason of your death or permanent and total disability before the April 1, 2010 payment is\nmade, YRCW shall pay to you or your estate all unpaid Consideration on the date that is six months following your termination\nby the Company without Cause; provided, that you have not breached any applicable provision of this agreement, in which case\nthe remaining payments of the Consideration will not be made, and YRCW shall withhold payment of the remaining payments of\nthe Consideration as damages for any such breach.\nC. Second Extension. If the Restricted Period has been extended pursuant to Section 5(b), then on July 1, 2009, the Restricted Period\nshall be extended again from six to nine months following your termination of employment with the Company unless the Board\nvotes to cancel this extension or you notify the Company in writing that you have cancelled this extension, in each case, prior to\nJuly 1, 2009. If this extension is effected, subject to the terms and restrictions set forth in this Section 5(c), YRCW shall pay you\nadditional Consideration in an amount equal to one-third of your base salary on July 1, 2010; provided, that the Company still\nemploys you on July 1, 2010. If your employment with the Company ends as a result of your resignation for any reason (other\nthan your resignation following an event that is deemed termination for Cause as described below in this Section 5) or your\ntermination by the Company with Cause, in each case, before September 30, 2010, YRCW shall not be required to pay to you the\nJuly 1, 2010 payment or any future payments under this agreement, and you shall return the July 1, 2010 payment. If the\nCompany terminates your employment without Cause or by reason of your death or permanent and total disability before the\nJuly 1, 2010 payment is made, YRCW shall pay to you or your estate all unpaid Consideration on the date that is six months\nfollowing your termination by YRCW without Cause; provided, that you have not breached any applicable provision of this\nagreement, in which case the remaining payments of the Consideration will not be made, and YRCW shall withhold payment of\nthe remaining payments of the Consideration as damages for any such breach.\nYRCW shall deduct from any of the payments under this Section 5 any applicable withholding taxes under federal and state law. For the\npurposes of this agreement, you shall be considered “permanently and totally disabled” if you are unable to engage in any substantial\ngainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be\nexpected to last for a continuous period of not less than 12 months or is, by reason of any medically determinable physical or mental\nimpairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving\nincome replacement benefits for a period of not less than three months under an accident and health plan covering employees of the\nCompany. “Cause” shall mean any of the following:\na. your conviction of a felony involving acts of dishonesty, fraud or moral turpitude;\ne. f.\nyour willful and repeated failure to perform your duties following 30 days notice of the failure and your failure to cure within the\n30-day period;\nwillful misconduct material to your employment;\nyour willful material breach of Company policies or rules of which you have been made aware following 30 days notice of the\nbreach and your failure to cure within the 30-day period,;\nyour willful, material and demonstrable dishonesty related to your employment; or\ngross negligence in the performance of your job duties.\nFor purposes of this agreement, no act, or failure to act, on your part shall be deemed “willful” or engaged in “willfully” if it was due primarily to an error in judgment or negligence, but shall be deemed “willful” or engaged in “willfully” only if done, or omitted to be done, by you not in good faith and without reasonable belief that your action or omission was in the best interest of the Company. If you resign following one or more of the following events, the Company shall be deemed to have terminated you without Cause for the purposes of this agreement: d. the Company relocates your principal place of performance of your duties and responsibilities (“employment domicile”) to a\nlocation more than 50 miles from the your current employment domicile;\nthe Company requires you to travel in excess more than 15% more than you traveled for the business of the Company in the\npreceding 12 months (counting each day or partial day of travel outside of the 100 mile radius of your current employment\ndomicile as a travel day); or\nthe Company reduces your base salary, bonus opportunity or long-term incentive opportunity other than reductions that are\napplicable to all similarly situated executives.\nReasonableness and Damages. You agree that the above obligations and covenants are reasonable in duration and scope, and agree that any agreed upon arbitration panel or court of competent jurisdiction may reform those obligations to the extent necessary to enforce them under applicable law. You further agree and acknowledge that violation of these obligations and covenants would cause immeasurable and irreparable damage to the Company. Accordingly, you agree that upon any violation of any of these obligations and covenants: you are required to return all Consideration to YRCW, and\nYRCW is entitled to withhold payment of any future payments of the Consideration, to injunctive relief in any court of competent\njurisdiction (without the necessity of posting a bond or other security with respect to the injunctive relief) and to any other\nremedies it may have.\nIn addition, you agree that upon any threatened violation of any of these obligations and covenants:\na. YRCW is entitled to withhold payment of the Consideration until any dispute regarding your threatened violation is resolved, and\nb. YRCW is entitled to injunctive relief in any court of competent jurisdiction to prevent the violation, without the necessity of\nposting a bond or other security with respect to the injunctive relief.\nIf you are required to return any of the Consideration pursuant to this agreement, YRCW shall use its reasonable best efforts to reverse any federal or\nstate withholding taxes made on your behalf prior to requesting the return of that portion of the Consideration from you. The provisions of this\nagreement are in addition to the provisions in any written employment agreement between the Company and you, and will not affect the\nresponsibilities or any other rights of you or the Company under those agreements. This agreement is not a contract of continuing employment.\nEmployment is for no fixed term, and either you or the Company may decide to terminate the employment relationship at any time for any reason.\nThis agreement is intended to meet the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and shall be\nadministered in a manner that is intended to meet those requirements and shall be construed and interpreted in accordance with such intent. To the\nextent that a payment is subject to the excise taxes that Section 409A of the Code imposes, the Company shall make the payment or defer it in a\nmanner that will meet the requirements of Section 409A of the Code, including regulations or other guidance issued with respect thereto, such that\nthe payment or deferral shall not be subject to the excise tax applicable under Section 409A of the Code.\nUnless this agreement expressly states to the contrary, references to “Sections” in this agreement mean the sections and subsections of this\nagreement, and capitalized terms that this agreement defines shall have the meanings that this agreement gives to each of them for the purposes of\nthis agreement.\nThis agreement shall be governed by Kansas law, without regard to its choice of law principles, and will be binding on you, your heirs, executors,\nassigns, and administrators, and shall inure to the benefit of YRCW, its successors and assigns, and shall survive the termination of your employment\nwith the Company, regardless of the manner of such termination.\nEach provision of this agreement will be interpreted on its own. If any provision is held to be unenforceable as written, it will be enforced to the\nextent reasonable under the circumstances. In any case, the other provisions of this agreement will not be affected.\nThis agreement constitutes the entire agreement among the parties and supersedes all prior agreements or understandings, if any, whether oral or\nwritten, with regard to the subject matter hereof. This agreement is an integrated document and may not be modified or amended except in a writing\nsigned by the parties hereto or their successors in interest.\n[For Sheila K. Taylor: This agreement amends and restates YRCW’s prior agreement with you dated December 18, 2008, in its entirety.\nNotwithstanding anything in this agreement to the contrary, if you have not received Consideration of at least $159,024 (the “Prior Agreement\nAmount”) on or before July 1, 2010, you shall receive a payment, if any, equal to the excess (the “Excess”) of the Prior Agreement Amount over the\namounts paid to you on or before July 1, 2010 so long as you remain employed with the Company on July 1, 2010; provided that if the Company\nterminates you without Cause or if you die or become permanently and totally disability before the July 1, 2010 payment is made, YRCW shall pay\nto you or your estate all unpaid Consideration on the date that is six months following your termination by YRCW without Cause; provided, further,\nthat you have not breached any applicable provision of this agreement, in which case the remaining payments of the Consideration will not be made,\nand YRCW shall withhold payment of the remaining payments of the Consideration as damages for any such breach. If your employment with the\nCompany ends as a result of your resignation for any reason (other than your resignation following an event that is deemed termination for Cause as\ndescribed below in Section 5) or your termination by the Company with Cause, in each case, before July 1, 2010, YRCW shall not be required to pay\nto you the Excess Amount or any future payments under this agreement, and you shall return the payment of the Excess Amount. For the avoidance\nof doubt, the portion of the Consideration paid to you up to the Prior Agreement Amount is part of, and not in addition to, the total Consideration\nthat YRCW pays you pursuant to this agreement. ]\nYRCW hereby agrees to the terms and conditions of this agreement:\nYRC Worldwide Inc.\nBy:\nName:\nTitle:\nI have signed and dated this agreement below to indicate my acceptance of its provisions and to acknowledge that I have received a copy of\nthis agreement.\n[employee name]\nDate:	EX-10.35 9 lex1035.htm NON-COMPETITION, NON-SOLICITATION NON-DISPARAGEMENT &\nCONFIDENTIALITY AGREEMENT\nExhibit 10.35\nNON-COMPETITION, NON-SOLICITATION, NON-DISPARAGEMENT AND\nCONFIDENTIALITY AGREEMENT\n[name of employee]:\nYRC Worldwide Inc., a Delaware corporation ("YRCW"), has determined that you are important to the operation of the business of YRCW\nand its subsidiaries (collectively, the "Company"). As a key employee, in the course of your work, you will, or have, become aware of information of\na\nconfidential nature pertaining to the business of the Company. The Company maintains policies and procedures with respect to the use and\nthe\ndissemination of confidential information. Your employment creates a relationship of confidence and trust between you and the Company with\nrespect to any information applicable to the business of the Company which may be, or has been, made known to you by the Company or learned\nby\nyou in the course of your work. You understand that you have an obligation to preserve the confidentiality of this information and use it only for\nthe\npurpose for which it was obtained. To further protect this confidential information and to prevent you from using this information and your skills\ngained in the course of your employment with the Company in competition with the Company, YRCW desires to provide you Consideration (defined\nbelow) to obtain your agreement not to compete with the Company and to abide by the other covenants in this agreement as described in the terms of\nthis agreement below.\nIn exchange for the payments of Consideration to you and other good and valuable consideration, the receipt and adequacy of which are hereby\nacknowledged, you understand and agree that your undertakings set forth below are material and essential terms to YRCW, and accordingly you\nexpressly agree that:\n1.\nNon-Competition. You acknowledge that the agreements and covenants contained in this Section 1 are essential to protect the value of the\nbusiness and assets of the Company and by your prior and continued employment with the Company you have obtained, and will continue to\nobtain, valuable confidential information, knowledge, contacts and experience, and there is a substantial probability that this confidential\ninformation, knowledge, contacts and experience could be used to the substantial advantage of a competitor of the Company to the Company's\nsubstantial detriment. Therefore, you agree that so long as the Company employs you and during the Restricted Period (defined below), you\nshall not, and shall cause your controlled affiliates not to, directly or indirectly (other than in your capacity as an employee of the Company),\nown, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary,\nfinancial, or otherwise), or participate in the ownership, management, operation, or control of any business of providing products or services of\nthe\nsame\nor\nsimilar\ntype\nas\nthe\nproducts\nor\nservices\nsold\nor\ndelivered\n(or,\npursuant\nto\nan\nexisting\nbusiness\nplan,\nwill\nbe\nsold\nor\ndelivered)\nto\ncustomers of the Company (the "Business") in any geographic region for which you had direct or indirect responsibility on behalf of the\nCompany or in any geographic region for which you had confidential information of the Company. It shall not be a violation of Sections 1 or 2\nif\nyou\nbecome the registered or beneficial owner of up to 5% of any class of the capital stock of a business that is either registered under\nthe\nSecurities Exchange Act of 1934, as amended, or is traded on any foreign stock exchange or if you become employed by or maintain an\ninterest in a law, accounting, consulting or financial advisory firm so long as you do not personally provide advice or services to a competitor\nof\nthe Company as an employee or interest owner during the Restricted Period. For the purposes of this agreement, the "Restricted\nPeriod"\nmeans the period commencing as of the day of your termination of employment with the Company, whether with or without Cause and\nwhether before or after receipt of the Consideration (defined below), and ending three months following termination of your employment with\nthe Company; provided that the Restricted Period may be extended to either six or nine months following termination of your employment\nwith YRCW and any of its subsidiaries in accordance with Section 5.\n2.\nNon-Solicitation. During the Restricted Period, you shall not and shall cause your controlled affiliates not to (other than in your capacity as an\nemployee of the Company):\na.\ncause, solicit, induce or encourage any employees, consultants or contractors of the Company to leave their respective\nemployment or service with the Company,\nb.\nsolicit\nthe\nemployment\nof,\nor\nhire,\nemploy\nor\notherwise\nengage\nany\nemployee\nof\nthe\nCompany;\nprovided\nthat\nit\nshall\nnot\nbe\na\nviolation of this Section 2(b) for an employer that you work for or for a firm in which you maintain an interest to have hired\nan\nemployee of the Company without your knowledge or participation,\nC.\ncause, induce, or encourage any actual or prospective client, customer, supplier or licensor of the Company (including any\nexisting or former customers of the Company) to terminate or modify any actual or prospective business relationship with the\nCompany, and\nd.\ndevelop a business relationship with any actual or prospective client, customer, supplier or licensor to cause, induce, or encourage\nsuch individual to become a client, customer, supplier, or licensor of any business in which you are engaged that is competitive\nwith the Business.\nThe restrictions relating to actual or prospective clients, customers, suppliers or licensors in this Section 2 apply only to:\nA.\nthose actual or prospective clients, customers, suppliers or licensors with whom you had contact on behalf of the Company during\nthe last 12 months of your employment with the Company, or\nB.\nany of the Company's actual or prospective clients, customers, suppliers or licensors about whom you had any confidential\ninformation during the last 12 months of your employment with the Company.\nIn no event shall it be a violation of this Section 2 to engage in solicitations incidental to general advertising or other general solicitation in the\nordinary course not specifically targeted at such persons or to employ any person not solicited in violation of this agreement.\n3.\nNon-Disparagement. You agree that, during your employment with the Company or at any time during the Restricted Period, you shall not\nmake any public statement that is materially disparaging of the business of the Company, or to the business reputation of any of the executive\nofficers of the Company or any of the employees of the Company who are known to you to be employees of the Company at the time of any\nsuch public statement. Your obligations under this Section 3 shall not apply to disclosures required by applicable law, regulation, or order of a\ncourt or governmental agency.\n4.\nConfidentiality.. All information related to the business of the Company that may be obtained by you from any source as a result of your\nemployment shall be considered as confidential. Materials contained in the Company's customers' files should always be regarded as\nconfidential.\nYou\nshould\nalways\nmaintain\nappropriate\nadministrative,\ntechnical\nand\nphysical\nsafeguards\nover\nrecords\nin\nyour\npossession\nto\nprevent unauthorized access. Information regarding strategic or tactical business plans; undisclosed business, operational or financial data;\nideas, processes, methods, techniques, systems, non-public information, models, devices, programs, computer software or related information;\ndocuments relating to regulatory matters or correspondence with governmental entities; undisclosed information concerning any past, pending,\nor threatened legal dispute; pricing or cost data; the identity, reports or analysis of business prospects; business transactions that are\ncontemplated or planned; research data; personnel information or data; identities of users or purchasers of the Company's products or services;\nor any business methods, operations, or results of the Company may not be disclosed to competitors, to the public, or to any person, nor can\nthe preceding information be otherwise used except as your duties at the Company may require or with the prior written approval of an\nauthorized officer of YRCW. This applies to the period of your employment and thereafter. Trade practices, procedures, software or other\nstrategies which you develop in the course of performing responsibilities or using Company equipment or facilities are the property of the\nCompany. Upon termination of your employment with the Company, you are required to deliver to the Company all documents, recordings and\nother tangible records (including tapes, discs or other similar media) that contain or are derived from the Company's confidential information.\nConfidential information of the Company does not include information that:\na.\nbecomes generally available to the public other than as a result of your disclosure in violation of this agreement,\nb.\nbecomes available to you on a non-confidential basis from a source other than the Company, provided that you do not know the\nsource to be subject to another confidentiality agreement with, another obligation of secrecy to, or a fiduciary duty of\nconfidentiality to, the Company with respect to the information; or\nC.\nyou independently develop without use of confidential information of the Company.\nIf\nyou\nhave acted in the capacity of legal counsel to the Company, it shall not be a violation of this Section 4 if you maintain one copy of any\nof the legal files with respect to the advice that you provided while the Company employed you, subject to the code of conduct or ethics of the\nstate in which you are licensed for the purpose of assisting the Company with questions regarding those files after your employment.\n5. Consideration.\na.\nInitial Consideration. Subject to the terms and restrictions set forth in this paragraph, YRCW shall pay you an amount (the\n"Consideration") equal to one-third of your base salary on January 2, 2010; provided, that the Company still employs\nyou\non\nJanuary 2, 2010. If your employment with the Company ends as a result of your resignation for any reason (other than your\nresignation following an event that is deemed termination for Cause as described below in this Section 5) or your termination by\nthe Company with Cause, in each case, before March 31, 2010, YRCW shall not be required to pay to you the January 2, 2010\npayment or any future payments under this agreement, and you shall return the January 2, 2010 payment. If the Company\nterminates your employment without Cause or by reason of your death or permanent and total disability before the January 2,\n2010 payment is made, YRCW shall pay to you or your estate all unpaid Consideration on the date that is six months following\nyour termination by the Company without Cause; provided, that you have not breached any applicable provision of this\nagreement, in which case the remaining payments of the Consideration will not be made, and YRCW shall withhold payment of\nthe remaining payments of the Consideration as damages for any such breach.\nb.\nFirst Extension. On April 1, 2009, the Restricted Period shall be extended from three to six months following your termination of\nemployment with the Company unless the Board of Directors of YRCW (the "Board") votes to cancel this extension or you\nnotify the Company in writing that you have cancelled this extension, in each case, prior to April 1, 2009. If this extension is\neffected, subject to the terms and restrictions set forth in this Section 5(b), YRCW shall pay you additional Consideration in an\namount equal to one-third of your base salary on April 1, 2010; provided, that the Company still employs you on April 1, 2010. If\nyour employment with the Company ends as a result of your resignation for any reason (other than your resignation following an\nevent that is deemed termination for Cause as described below in this Section 5) or the Company terminates your employment\nwith Cause, in each case, before June 30, 2010, YRCW shall not be required to pay to you the April 1, 2010 payment or any\nfuture payments under this agreement, and you shall return the April 1, 2010 payment. If the Company terminates your\nemployment without Cause or by reason of your death or permanent and total disability before the April 1, 2010 payment is\nmade, YRCW shall pay to you or your estate all unpaid Consideration on the date that is six months following your termination\nby the Company without Cause; provided, that you have not breached any applicable provision of this agreement, in which case\nthe remaining payments of the Consideration will not be made, and YRCW shall withhold payment of the remaining payments of\nthe Consideration as damages for any such breach.\nC.\nSecond Extension. If the Restricted Period has been extended pursuant to Section 5(b), then on July 1, 2009, the Restricted Period\nshall be extended again from six to nine months following your termination of employment with the Company unless the Board\nvotes to cancel this extension or you notify the Company in writing that you have cancelled this extension, in each case, prior to\nJuly 1, 2009. If this extension is effected, subject to the terms and restrictions set forth in this Section 5(c), YRCW shall pay you\nadditional Consideration in an amount equal to one-third of your base salary on July 1, 2010; provided, that the Company still\nemploys you on July 1, 2010. If your employment with the Company ends as a result of your resignation for any reason (other\nthan your resignation following an event that is deemed termination for Cause as described below in this Section 5) or your\ntermination by the Company with Cause, in each case, before September 30, 2010, YRCW shall not be required to pay to you the\nJuly 1, 2010 payment or any future payments under this agreement, and you shall return the July 1, 2010 payment. If the\nCompany terminates your employment without Cause or by reason of your death or permanent and total disability before the\nJuly 1, 2010 payment is made, YRCW shall pay to you or your estate all unpaid Consideration on the date that is six months\nfollowing your termination by YRCW without Cause; provided, that you have not breached any applicable provision of this\nagreement, in which case the remaining payments of the Consideration will not be made, and YRCW shall withhold payment of\nthe remaining payments of the Consideration as damages for any such breach.\nYRCW shall deduct from any of the payments under this Section 5 any applicable withholding taxes under federal and state law. For the\npurposes of this agreement, you shall be considered "permanently and totally disabled" if you are unable to engage in any substantial\ngainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be\nexpected to last for a continuous period of not less than 12 months or is, by reason of any medically determinable physical or mental\nimpairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving\nincome replacement benefits for a period of not less than three months under an accident and health plan covering employees of the\nCompany. "Cause" shall mean any of the following:\na.\nyour conviction of a felony involving acts of dishonesty, fraud or moral turpitude;\nb.\nyour willful and repeated failure to perform your duties following 30 days notice of the failure and your failure to cure within the\n30-day period;\nC.\nwillful misconduct material to your employment;\nd.\nyour willful material breach of Company policies or rules of which you have been made aware following 30 days notice of the\nbreach and your failure to cure within the 30-day period;\ne.\nyour willful, material and demonstrable dishonesty related to your employment; or\nf.\ngross negligence in the performance of your job duties.\nFor purposes of this agreement, no act, or failure to act, on your part shall be deemed "willful" or engaged in "willfully" if it was due primarily\nto an error in judgment or negligence, but shall be deemed "willful" or engaged in "willfully" only if done, or omitted to be done, by you not in\ngood faith and without reasonable belief that your action or omission was in the best interest of the Company.\nIf you resign following one or more of the following events, the Company shall be deemed to have terminated you without Cause for the\npurposes of this agreement:\na.\nthe Company relocates your principal place of performance of your duties and responsibilities ("employment domicile") to a\nlocation more than 50 miles from the your current employment domicile;\nb.\nthe Company requires you to travel in excess more than 15% more than you traveled for the business of the Company in the\npreceding 12 months (counting each day or partial day of travel outside of the 100 mile radius of your current employment\ndomicile as a travel day); or\nC.\nthe Company reduces your base salary, bonus opportunity or long-term incentive opportunity other than reductions that are\napplicable to all similarly situated executives.\n6.\nReasonableness and Damages. You agree that the above obligations and covenants are reasonable in duration and scope, and agree that any\nagreed upon arbitration panel or court of competent jurisdiction may reform those obligations to the extent necessary to enforce them under\napplicable law. You further agree and acknowledge that violation of these obligations and covenants would cause immeasurable and\nirreparable damage to the Company. Accordingly, you agree that upon any violation of any of these obligations and covenants:\na.\nyou are required to return all Consideration to YRCW, and\nb.\nYRCW is entitled to withhold payment of any future payments of the Consideration, to injunctive relief in any court of competent\njurisdiction (without the necessity of posting a bond or other security with respect to the injunctive relief) and to any other\nremedies it may have.\nIn\naddition, you agree that upon any threatened violation of any of these obligations and covenants:\na.\nYRCW is entitled to withhold payment of the Consideration until any dispute regarding your threatened violation is resolved, and\nb.\nYRCW is entitled to injunctive relief in any court of competent jurisdiction to prevent the violation, without the necessity of\nposting a bond or other security with respect to the injunctive relief.\nIf\nyou are required to return any of the Consideration pursuant to this agreement, YRCW shall use its reasonable best efforts to reverse any federal or\nstate withholding taxes made on your behalf prior to requesting the return of that portion of the Consideration from you. The provisions of this\nagreement are in addition to the provisions in any written employment agreement between the Company and you, and will not affect the\nresponsibilities or any other rights of you or the Company under those agreements. This agreement is not a contract of continuing employment.\nEmployment is for no fixed term, and either you or the Company may decide to terminate the employment relationship at any time for any reason.\nThis agreement is intended to meet the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), and shall\nbe\nadministered in a manner that is intended to meet those requirements and shall be construed and interpreted in accordance with such intent. To the\nextent that a payment is subject to the excise taxes that Section 409A of the Code imposes, the Company shall make the payment or defer it in a\nmanner that will meet the requirements of Section 409A of the Code, including regulations or other guidance issued with respect thereto, such that\nthe payment or deferral shall not be subject to the excise tax applicable under Section 409A of the Code.\nUnless this agreement expressly states to the contrary, references to "Sections" in this agreement mean the sections and subsections of this\nagreement, and capitalized terms that this agreement defines shall have the meanings that this agreement gives to each of them for the purposes of\nthis agreement.\nThis agreement shall be governed by Kansas law, without regard to its choice of law principles, and will be binding on you, your heirs, executors,\nassigns, and administrators, and shall inure to the benefit of YRCW, its successors and assigns, and shall survive the termination of your\nemployment\nwith the Company, regardless of the manner of such termination.\nEach provision of this agreement will be interpreted on its own. If any provision is held to be unenforceable as written, it will be enforced to the\nextent reasonable under the circumstances In any case, the other provisions of this agreement will not be affected.\nThis agreement constitutes the entire agreement among the parties and supersedes all prior agreements or understandings, if any, whether oral\nor\nwritten, with regard to the subject matter hereof. This agreement is an integrated document and may not be modified or amended except in a writing\nsigned by the parties hereto or their successors in interest.\n[For Sheila K. Taylor: This agreement amends and restates YRCW's prior agreement with you dated December 18, 2008, in its entirety.\nNotwithstanding anything in this agreement to the contrary, if you have not received Consideration of at least $159,024 (the "Prior Agreement\nAmount") on or before July 1, 2010, you shall receive a payment, if any, equal to the excess (the "Excess") of the Prior Agreement Amount over the\namounts paid to you on or before July 1, 2010 so long as you remain employed with the Company on July 1, 2010; provided that if the Company\nterminates you without Cause or if you die or become permanently and totally disability before the July 1, 2010 payment is made, YRCW shall pay\nto you or your estate all unpaid Consideration on the date that is six months following your termination by YRCW without Cause; provided, further,\nthat you have not breached any applicable provision of this agreement, in which case the remaining payments of the Consideration will not be made,\nand YRCW shall withhold payment of the remaining payments of the Consideration as damages for any such breach. If your employment with the\nCompany ends as a result of your resignation for any reason (other than your resignation following an event that is deemed termination for Cause as\ndescribed below in Section 5) or your termination by the Company with Cause, in each case, before July 1, 2010, YRCW shall not be required to pay\nto you the Excess Amount or any future payments under this agreement, and you shall return the payment of the Excess Amount. For the avoidance\nof doubt, the portion of the Consideration paid to you up to the Prior Agreement Amount is part of, and not in addition to, the total Consideration\nthat YRCW pays you pursuant to this agreement.]\nYRCW hereby agrees to the terms and conditions of this agreement:\nYRC Worldwide Inc.\nBy:\nName:\nTitle:\nI have signed and dated this agreement below to indicate my acceptance of its provisions and to acknowledge that I have received a copy of\nthis agreement.\n[employee name]\nDate:	EX-10.35 9 dex1035.htm NON-COMPETITION, NON-SOLICITATION, NON-DISPARAGEMENT &\nCONFIDENTIALITY AGREEMENT\nExhibit 10.35\nNON-COMPETITION, NON-SOLICITATION, NON-DISPARAGEMENT AND\nCONFIDENTIALITY AGREEMENT\n[name of employee]:\nYRC Worldwide Inc., a Delaware corporation (“YRCW”), has determined that you are important to the operation of the business of YRCW\nand its subsidiaries (collectively, the “Company”). As a key employee, in the course of your work, you will, or have, become aware of information of\na confidential nature pertaining to the business of the Company. The Company maintains policies and procedures with respect to the use and the\ndissemination of confidential information. Your employment creates a relationship of confidence and trust between you and the Company with\nrespect to any information applicable to the business of the Company which may be, or has been, made known to you by the Company or learned by\nyou in the course of your work. You understand that you have an obligation to preserve the confidentiality of this information and use it only for the\npurpose for which it was obtained. To further protect this confidential information and to prevent you from using this information and your skills\ngained in the course of your employment with the Company in competition with the Company, YRCW desires to provide you Consideration (defined\nbelow) to obtain your agreement not to compete with the Company and to abide by the other covenants in this agreement as described in the terms of\nthis agreement below.\nIn exchange for the payments of Consideration to you and other good and valuable consideration, the receipt and adequacy of which are hereby\nacknowledged, you understand and agree that your undertakings set forth below are material and essential terms to YRCW, and accordingly you\nexpressly agree that:\n1. Non-Competition. You acknowledge that the agreements and covenants contained in this Section 1 are essential to protect the value of the\nbusiness and assets of the Company and by your prior and continued employment with the Company you have obtained, and will continue to\nobtain, valuable confidential information, knowledge, contacts and experience, and there is a substantial probability that this confidential\ninformation, knowledge, contacts and experience could be used to the substantial advantage of a competitor of the Company to the Company’s\nsubstantial detriment. Therefore, you agree that so long as the Company employs you and during the Restricted Period (defined below), you\nshall not, and shall cause your controlled affiliates not to, directly or indirectly (other than in your capacity as an employee of the Company),\nown, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary,\nfinancial, or otherwise), or participate in the ownership, management, operation, or control of any business of providing products or services of\nthe same or similar type as the products or services sold or delivered (or, pursuant to an existing business plan, will be sold or delivered) to\ncustomers of the Company (the “Business”) in any geographic region for which you had direct or indirect responsibility on behalf of the\nCompany or in any geographic region for which you had confidential information of the Company. It shall not be a violation of Sections 1 or 2\nif you become the registered or beneficial owner of up to 5% of any class of the capital stock of a business that is either registered under the\nSecurities Exchange Act of 1934, as amended, or is traded on any foreign stock exchange or if you become employed by or maintain an\ninterest in a law, accounting, consulting or financial advisory firm so long as you do not personally provide advice or services to a competitor\nof the Company as an employee or interest owner during the Restricted Period. For the purposes of this agreement, the “Restricted Period”\nmeans the period commencing as of the day of your termination of employment with the Company, whether with or without Cause and\nwhether before or after receipt of the Consideration (defined below), and ending three months following termination of your employment with\nthe Company; provided that the Restricted Period may be extended to either six or nine months following termination of your employment\nwith YRCW and any of its subsidiaries in accordance with Section 5.\n2. Non-Solicitation. During the Restricted Period, you shall not and shall cause your controlled affiliates not to (other than in your capacity as an\nemployee of the Company):\na.\ncause, solicit, induce or encourage any employees, consultants or contractors of the Company to leave their respective\nemployment or service with the Company,\nb.\nsolicit the employment of, or hire, employ or otherwise engage any employee of the Company; provided that it shall not be a\nviolation of this Section 2(b) for an employer that you work for or for a firm in which you maintain an interest to have hired an\nemployee of the Company without your knowledge or participation,\nc.\ncause, induce, or encourage any actual or prospective client, customer, supplier or licensor of the Company (including any\nexisting or former customers of the Company) to terminate or modify any actual or prospective business relationship with the\nCompany, and\nd.\ndevelop a business relationship with any actual or prospective client, customer, supplier or licensor to cause, induce, or encourage\nsuch individual to become a client, customer, supplier, or licensor of any business in which you are engaged that is competitive\nwith the Business.\nThe restrictions relating to actual or prospective clients, customers, suppliers or licensors in this Section 2 apply only to:\nA.\nthose actual or prospective clients, customers, suppliers or licensors with whom you had contact on behalf of the Company during\nthe last 12 months of your employment with the Company, or\nB.\nany of the Company’s actual or prospective clients, customers, suppliers or licensors about whom you had any confidential\ninformation during the last 12 months of your employment with the Company.\nIn no event shall it be a violation of this Section 2 to engage in solicitations incidental to general advertising or other general solicitation in the\nordinary course not specifically targeted at such persons or to employ any person not solicited in violation of this agreement.\n3. Non-Disparagement. You agree that, during your employment with the Company or at any time during the Restricted Period, you shall not\nmake any public statement that is materially disparaging of the business of the Company, or to the business reputation of any of the executive\nofficers of the Company or any of the employees of the Company who are known to you to be employees of the Company at the time of any\nsuch public statement. Your obligations under this Section 3 shall not apply to disclosures required by applicable law, regulation, or order of a\ncourt or governmental agency.\n4. Confidentiality. All information related to the business of the Company that may be obtained by you from any source as a result of your\nemployment shall be considered as confidential. Materials contained in the Company’s customers’ files should always be regarded as\nconfidential. You should always maintain appropriate administrative, technical and physical safeguards over records in your possession to\nprevent unauthorized access. Information regarding strategic or tactical business plans; undisclosed business, operational or financial data;\nideas, processes, methods, techniques, systems, non-public information, models, devices, programs, computer software or related information;\ndocuments relating to regulatory matters or correspondence with governmental entities; undisclosed information concerning any past, pending,\nor threatened legal dispute; pricing or cost data; the identity, reports or analysis of business prospects; business transactions that are\ncontemplated or planned; research data; personnel information or data; identities of users or purchasers of the Company’s products or services;\nor any business methods, operations, or results of the Company may not be disclosed to competitors, to the public, or to any person, nor can\nthe preceding information be otherwise used except as your duties at the Company may require or with the prior written approval of an\nauthorized officer of YRCW. This applies to the period of your employment and thereafter. Trade practices, procedures, software or other\nstrategies which you develop in the course of performing responsibilities or using Company equipment or facilities are the property of the\nCompany. Upon termination of your employment with the Company, you are required to deliver to the Company all documents, recordings and\nother tangible records (including tapes, discs or other similar media) that contain or are derived from the Company’s confidential information.\nConfidential information of the Company does not include information that:\na.\nbecomes generally available to the public other than as a result of your disclosure in violation of this agreement,\nb.\nbecomes available to you on a non-confidential basis from a source other than the Company, provided that you do not know the\nsource to be subject to another confidentiality agreement with, another obligation of secrecy to, or a fiduciary duty of\nconfidentiality to, the Company with respect to the information; or\nc.\nyou independently develop without use of confidential information of the Company.\nIf you have acted in the capacity of legal counsel to the Company, it shall not be a violation of this Section 4 if you maintain one copy of any\nof the legal files with respect to the advice that you provided while the Company employed you, subject to the code of conduct or ethics of the\nstate in which you are licensed for the purpose of assisting the Company with questions regarding those files after your employment.\n5. Consideration.\na.\nInitial Consideration. Subject to the terms and restrictions set forth in this paragraph, YRCW shall pay you an amount (the\n“Consideration”) equal to one-third of your base salary on January 2, 2010; provided, that the Company still employs you on\nJanuary 2, 2010. If your employment with the Company ends as a result of your resignation for any reason (other than your\nresignation following an event that is deemed termination for Cause as described below in this Section 5) or your termination by\nthe Company with Cause, in each case, before March 31, 2010, YRCW shall not be required to pay to you the January 2, 2010\npayment or any future payments under this agreement, and you shall return the January 2, 2010 payment. If the Company\nterminates your employment without Cause or by reason of your death or permanent and total disability before the January 2,\n2010 payment is made, YRCW shall pay to you or your estate all unpaid Consideration on the date that is six months following\nyour termination by the Company without Cause; provided, that you have not breached any applicable provision of this\nagreement, in which case the remaining payments of the Consideration will not be made, and YRCW shall withhold payment of\nthe remaining payments of the Consideration as damages for any such breach.\nb.\nFirst Extension. On April 1, 2009, the Restricted Period shall be extended from three to six months following your termination of\nemployment with the Company unless the Board of Directors of YRCW (the “Board”) votes to cancel this extension or you\nnotify the Company in writing that you have cancelled this extension, in each case, prior to April 1, 2009. If this extension is\neffected, subject to the terms and restrictions set forth in this Section 5(b), YRCW shall pay you additional Consideration in an\namount equal to one-third of your base salary on April 1, 2010; provided, that the Company still employs you on April 1, 2010. If\nyour employment with the Company ends as a result of your resignation for any reason (other than your resignation following an\nevent that is deemed termination for Cause as described below in this Section 5) or the Company terminates your employment\nwith Cause, in each case, before June 30, 2010, YRCW shall not be required to pay to you the April 1, 2010 payment or any\nfuture payments under this agreement, and you shall return the April 1, 2010 payment. If the Company terminates your\nemployment without Cause or by reason of your death or permanent and total disability before the April 1, 2010 payment is\nmade, YRCW shall pay to you or your estate all unpaid Consideration on the date that is six months following your termination\nby the Company without Cause; provided, that you have not breached any applicable provision of this agreement, in which case\nthe remaining payments of the Consideration will not be made, and YRCW shall withhold payment of the remaining payments of\nthe Consideration as damages for any such breach.\nc.\nSecond Extension. If the Restricted Period has been extended pursuant to Section 5(b), then on July 1, 2009, the Restricted Period\nshall be extended again from six to nine months following your termination of employment with the Company unless the Board\nvotes to cancel this extension or you notify the Company in writing that you have cancelled this extension, in each case, prior to\nJuly 1, 2009. If this extension is effected, subject to the terms and restrictions set forth in this Section 5(c), YRCW shall pay you\nadditional Consideration in an amount equal to one-third of your base salary on July 1, 2010; provided, that the Company still\nemploys you on July 1, 2010. If your employment with the Company ends as a result of your resignation for any reason (other\nthan your resignation following an event that is deemed termination for Cause as described below in this Section 5) or your\ntermination by the Company with Cause, in each case, before September 30, 2010, YRCW shall not be required to pay to you the\nJuly 1, 2010 payment or any future payments under this agreement, and you shall return the July 1, 2010 payment. If the\nCompany terminates your employment without Cause or by reason of your death or permanent and total disability before the\nJuly 1, 2010 payment is made, YRCW shall pay to you or your estate all unpaid Consideration on the date that is six months\nfollowing your termination by YRCW without Cause; provided, that you have not breached any applicable provision of this\nagreement, in which case the remaining payments of the Consideration will not be made, and YRCW shall withhold payment of\nthe remaining payments of the Consideration as damages for any such breach.\nYRCW shall deduct from any of the payments under this Section 5 any applicable withholding taxes under federal and state law. For the\npurposes of this agreement, you shall be considered “permanently and totally disabled” if you are unable to engage in any substantial\ngainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be\nexpected to last for a continuous period of not less than 12 months or is, by reason of any medically determinable physical or mental\nimpairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving\nincome replacement benefits for a period of not less than three months under an accident and health plan covering employees of the\nCompany. “Cause” shall mean any of the following:\na.\nyour conviction of a felony involving acts of dishonesty, fraud or moral turpitude;\nb.\nyour willful and repeated failure to perform your duties following 30 days notice of the failure and your failure to cure within the\n30-day period;\nc.\nwillful misconduct material to your employment;\nd.\nyour willful material breach of Company policies or rules of which you have been made aware following 30 days notice of the\nbreach and your failure to cure within the 30-day period;\ne.\nyour willful, material and demonstrable dishonesty related to your employment; or\nf.\ngross negligence in the performance of your job duties.\nFor purposes of this agreement, no act, or failure to act, on your part shall be deemed “willful” or engaged in “willfully” if it was due primarily\nto an error in judgment or negligence, but shall be deemed “willful” or engaged in “willfully” only if done, or omitted to be done, by you not in\ngood faith and without reasonable belief that your action or omission was in the best interest of the Company.\nIf you resign following one or more of the following events, the Company shall be deemed to have terminated you without Cause for the\npurposes of this agreement:\na.\nthe Company relocates your principal place of performance of your duties and responsibilities (“employment domicile”) to a\nlocation more than 50 miles from the your current employment domicile;\nb.\nthe Company requires you to travel in excess more than 15% more than you traveled for the business of the Company in the\npreceding 12 months (counting each day or partial day of travel outside of the 100 mile radius of your current employment\ndomicile as a travel day); or\nc.\nthe Company reduces your base salary, bonus opportunity or long-term incentive opportunity other than reductions that are\napplicable to all similarly situated executives.\n6. Reasonableness and Damages. You agree that the above obligations and covenants are reasonable in duration and scope, and agree that any\nagreed upon arbitration panel or court of competent jurisdiction may reform those obligations to the extent necessary to enforce them under\napplicable law. You further agree and acknowledge that violation of these obligations and covenants would cause immeasurable and\nirreparable damage to the Company. Accordingly, you agree that upon any violation of any of these obligations and covenants:\na.\nyou are required to return all Consideration to YRCW, and\nb.\nYRCW is entitled to withhold payment of any future payments of the Consideration, to injunctive relief in any court of competent\njurisdiction (without the necessity of posting a bond or other security with respect to the injunctive relief) and to any other\nremedies it may have.\nIn addition, you agree that upon any threatened violation of any of these obligations and covenants:\na.\nYRCW is entitled to withhold payment of the Consideration until any dispute regarding your threatened violation is resolved, and\nb.\nYRCW is entitled to injunctive relief in any court of competent jurisdiction to prevent the violation, without the necessity of\nposting a bond or other security with respect to the injunctive relief.\nIf you are required to return any of the Consideration pursuant to this agreement, YRCW shall use its reasonable best efforts to reverse any federal or\nstate withholding taxes made on your behalf prior to requesting the return of that portion of the Consideration from you. The provisions of this\nagreement are in addition to the provisions in any written employment agreement between the Company and you, and will not affect the\nresponsibilities or any other rights of you or the Company under those agreements. This agreement is not a contract of continuing employment.\nEmployment is for no fixed term, and either you or the Company may decide to terminate the employment relationship at any time for any reason.\nThis agreement is intended to meet the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and shall be\nadministered in a manner that is intended to meet those requirements and shall be construed and interpreted in accordance with such intent. To the\nextent that a payment is subject to the excise taxes that Section 409A of the Code imposes, the Company shall make the payment or defer it in a\nmanner that will meet the requirements of Section 409A of the Code, including regulations or other guidance issued with respect thereto, such that\nthe payment or deferral shall not be subject to the excise tax applicable under Section 409A of the Code.\nUnless this agreement expressly states to the contrary, references to “Sections” in this agreement mean the sections and subsections of this\nagreement, and capitalized terms that this agreement defines shall have the meanings that this agreement gives to each of them for the purposes of\nthis agreement.\nThis agreement shall be governed by Kansas law, without regard to its choice of law principles, and will be binding on you, your heirs, executors,\nassigns, and administrators, and shall inure to the benefit of YRCW, its successors and assigns, and shall survive the termination of your employment\nwith the Company, regardless of the manner of such termination.\nEach provision of this agreement will be interpreted on its own. If any provision is held to be unenforceable as written, it will be enforced to the\nextent reasonable under the circumstances. In any case, the other provisions of this agreement will not be affected.\nThis agreement constitutes the entire agreement among the parties and supersedes all prior agreements or understandings, if any, whether oral or\nwritten, with regard to the subject matter hereof. This agreement is an integrated document and may not be modified or amended except in a writing\nsigned by the parties hereto or their successors in interest.\n[For Sheila K. Taylor: This agreement amends and restates YRCW’s prior agreement with you dated December 18, 2008, in its entirety.\nNotwithstanding anything in this agreement to the contrary, if you have not received Consideration of at least $159,024 (the “Prior Agreement\nAmount”) on or before July 1, 2010, you shall receive a payment, if any, equal to the excess (the “Excess”) of the Prior Agreement Amount over the\namounts paid to you on or before July 1, 2010 so long as you remain employed with the Company on July 1, 2010; provided that if the Company\nterminates you without Cause or if you die or become permanently and totally disability before the July 1, 2010 payment is made, YRCW shall pay\nto you or your estate all unpaid Consideration on the date that is six months following your termination by YRCW without Cause; provided, further,\nthat you have not breached any applicable provision of this agreement, in which case the remaining payments of the Consideration will not be made,\nand YRCW shall withhold payment of the remaining payments of the Consideration as damages for any such breach. If your employment with the\nCompany ends as a result of your resignation for any reason (other than your resignation following an event that is deemed termination for Cause as\ndescribed below in Section 5) or your termination by the Company with Cause, in each case, before July 1, 2010, YRCW shall not be required to pay\nto you the Excess Amount or any future payments under this agreement, and you shall return the payment of the Excess Amount. For the avoidance\nof doubt, the portion of the Consideration paid to you up to the Prior Agreement Amount is part of, and not in addition to, the total Consideration\nthat YRCW pays you pursuant to this agreement.]\nYRCW hereby agrees to the terms and conditions of this agreement:\nYRC Worldwide Inc.\nBy:\nName:\nTitle:\nI have signed and dated this agreement below to indicate my acceptance of its provisions and to acknowledge that I have received a copy of\nthis agreement.\n[employee name]\nDate:
+432b1e62deca99f4510ca4ebded0e667.pdf	effective_date jurisdiction party term	EX-10.2 4 dex102.htm NON-COMPETITION, NON-DISCLOSURE AND INTELLECTUAL AGREEMENT -\nKENNETH F. BUECHLER\nExhibit 10.2\nNON-COMPETITION, NON-DISCLOSURE\nAND\nINTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT\nThis Non-competition, Non-disclosure and Intellectual Property Assignment Agreement (the “Agreement”) entered into as of May 17, 2007, is\nhereby made by and between INVERNESS MEDICAL INNOVATIONS, INC., a Delaware corporation (the “Company”) and, BIOSITE\nINCORPORATED, a Delaware corporation (the “Employer”), on the one hand, and Kenneth Buechler, an individual, who is a resident of and\nemployed in the State of California (“Employee”), on the other hand.\nA. The Company, Employer, and Inca Acquisition, Inc., a wholly-owned subsidiary of the Company, are entering into an Agreement and Plan\nof Merger dated as of May 17, 2007 (the “Merger Agreement”), which provides for the acquisition of Employer by the Company, upon which\nEmployer would become a wholly owned subsidiary of the Company;\nB. Employee, Company and Employer desire to enter into this Agreement in connection with the transactions contemplated by the Merger\nAgreement, contingent and effective upon the Effective Time (as defined in the Merger Agreement);\nC. Employee is the owner of 256,993 shares of Common Stock of Employer and has options to purchase 362,896 shares of Common Stock of\nEmployer (the “Employee Options”), and thereby stands to benefit by, and receive consideration from, the transactions contemplated by the Merger\nAgreement.\nD. Contingent and effective upon the Effective Time, Employee will become employed by Employer.\nE. Company and Employer desire to protect their interest in the business acquired, including the goodwill of that business, from unfair\ncompetition or misappropriation of the intellectual property of the business.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Assignment of Intellectual Property Rights.\n(a) Definition of “Inventions.” As used herein, the term “Inventions” shall mean all inventions, discoveries, improvements, original\nworks of authorship, trade secrets, formulas, techniques, data, programs, systems, specifications, documentation, algorithms, flow charts, logic\ndiagrams, source codes, object codes, processes, and other technical, business, product, marketing or financial information, plans, or other subject\nmatter pertaining to the Company, Employer or any of their respective parents, subsidiaries, affiliates, customers, consultants or licensees, whether or\nnot patented, tested, reduced to practice, or subject to patent, trademark, copyright, trade secret, mask work or other forms of protection (including\nall rights to obtain, register, perfect, renew,\nextend, continue, divide and enforce these proprietary interests), which are made, created, authored, conceived, modified, enhanced or reduced to\npractice by Employee, either alone or jointly with others, during Employee’s employment with Employer or the Company or any of their respective\nparents, subsidiaries or affiliates, and for so long as Employee is otherwise employed by any of them, whether or not during normal working hours,\nwhich (A) relate to the actual or anticipated business, activities, research, or investigations of Employer or the Company or any of their respective\nsubsidiaries or affiliates or (B) result from or are suggested by work performed by Employee for Employer or the Company or any of their respective\nparents, subsidiaries or affiliates (whether or not made or conceived during normal working hours or on the premises of Employer), or (C) which\nresult, to any extent, from use of the time, material, proprietary information, premises or property of Employer or the Company or any of their\nrespective parents, subsidiaries or affiliates.\n(b) Work for Hire. Subject to Section 1(d), Employee expressly acknowledges that all copyrightable aspects of the Inventions are to be\nconsidered “works made for hire” within the meaning of the Copyright Act of 1976, as amended (the “Act”), and that Employer is to be the “author”\nwithin the meaning of such Act for all purposes. All such copyrightable works, as well as all copies of such works in whatever medium fixed or\nembodied, shall be owned exclusively by Employer as of its creation, and Employee hereby expressly disclaims any and all interest in any of such\ncopyrightable works and waives any right of droit morale or similar rights.\n(c) Assignment. Subject to Section 1(d), Employee acknowledges and agrees that all Inventions shall be the sole property of Employer or\nany other entity designated by Employer. Employee hereby conveys and irrevocably assigns to Employer, without further consideration, all his right,\ntitle and interest in and to, and all claims for past infringement of, all Inventions, including, with respect to any of the foregoing, all rights of\ncopyright, patent, trademark, trade secret, mask works, and any and all other proprietary rights therein, the right to modify and create derivative\nworks, the right to invoke the benefit of any priority under any international convention, and all rights to register and renew same. This assignment is\nintended to and does extend to Inventions which have not yet been created.\n(d) Exceptions. Notwithstanding the foregoing, and provided that Employee does not wrongfully misappropriate any Confidential\nInformation or Trade Secrets, Employee understands that the provisions of this Agreement requiring disclosure and assignment of Inventions to\nEmployer do not apply to any invention which qualifies under the provisions of California Labor Code Section 2870 set forth in Schedule A or any\nsimilar law applicable to Employer or Employee. Employee agrees to identify all Inventions made by Employee that Employee believes meet the\ncriteria of California Labor Code Section 2870 to Employer in confidence to permit a determination as to whether or not the Inventions are the\nproperty of Employer, and Employee agrees to disclose all information Employer reasonably requests about Inventions, including those Employee\ncontends qualify under this exception to his duty to assign Inventions. “Trade Secrets” shall mean the whole or any portion or phase of any plan,\ntechnique, method, design, process, procedure, or improvement of Employer, the Company or any of their\n2\nrespective affiliates or subsidiaries that is valuable and not generally known to Competitors, whether or not in written or tangible form. Trade Secrets\nshall not include any materials or information that is or becomes publicly known through no fault of Employee or is disclosed by the Company to\nthird parties without an obligation of confidentiality.\n(e) Proprietary Notices; No Filings; Waiver of Moral Rights. Employee acknowledges that subject to Section 1(d), all Inventions shall, at\nthe sole option of Employer, bear Employer’s patent, copyright, trademark, trade secret, and mask work notices. Subject to Section 1(d), Employee\nagrees not to file any patent, copyright, or trademark applications relating to any Invention, except with the prior written consent of an authorized\nrepresentative of the Company. Subject to Section 1(d), Employee hereby expressly disclaims any and all interest in any Inventions and waives any\nright of droit morale or similar rights, such as rights of integrity or the right to be attributed as the creator of the Invention.\n(f) Further Assurances. Employee agrees to assist Employer, or any party designated by Employer, promptly on Employer’s reasonable\nrequest and at Employer’s expense, whether before or after the termination of employment, however such termination may occur, in perfecting,\nregistering, maintaining, and enforcing, in any jurisdiction, Employer’s rights in the Inventions by performing all acts and executing all documents\nand instruments deemed necessary or convenient by Employer, including, by way of illustration and not limitation:\n(i) Executing assignments, applications, and other documents and instruments in connection with (A) obtaining patents, copyrights,\ntrademarks, mask works, or other proprietary protections for the Inventions and (B) confirming the assignment to Employer of all right, title,\nand interest in the Inventions or otherwise establishing Employer’s exclusive ownership rights therein.\n(ii) Cooperating in the prosecution of patent, copyright, trademark and mask work applications, as well as in the enforcement of\nEmployer’s rights in the Inventions, including, but not limited to, testifying in court or before any patent, copyright, trademark or mask work\nregistry office or any other administrative body.\nEmployee shall be reimbursed for all out-of-pocket costs incurred in connection with the foregoing, if such assistance is requested by\nEmployer. In addition, to the extent that, after the termination of employment for whatever reason, Employee’s technical expertise shall be required\nin connection with the fulfillment of the aforementioned obligations, Employer shall compensate Employee at a reasonable rate for the time actually\nspent by Employee at Employer’s request rendering such assistance.\n(g) Power of Attorney. Subject to Section 1(d), Employee hereby irrevocably appoints Employer to be his attorney-in-fact to execute any\ndocument and to take any action in his name and on his behalf solely for the purpose of giving to\n3\nEmployer the full benefit of the assignment provisions set forth above to the extent that after reasonable effort by Employer, Employee does not\ncomply with his obligations set forth in this Section 1.\n(h) Disclosure of Inventions. Subject to Section 1(d), Employee shall make full and prompt disclosure to Employer of all Inventions\nsubject to assignment to Employer and all information relating thereto in Employee’s possession or under his control as to possible applications and\nuse thereof.\n2. Non-Disclosure of Confidential Information, Exclusive Services/Non-Competition and Non-Solicitation.\n(a) Confidentiality. Employee acknowledges that in his employment with Employer or the Company he will occupy a position of trust\nand confidence. Employee shall not, except as may be required in the normal course of business to perform his duties hereunder or as required by\napplicable law, without limitation in time or until such information shall have become public other than by Employee’s unauthorized disclosure,\ndisclose to others or use, whether directly or indirectly, any Confidential Information. “Confidential Information” shall mean confidential or\nproprietary information about Employer, or the Company, or their respective subsidiaries or affiliates, or their respective clients and customers, that\nis not disclosed by Employer for financial reporting purposes and that was learned by Employee in the course of his employment by Employer or the\nCompany, or their respective parents, subsidiaries or affiliates (or during any period in which Employee performed services for or on behalf of\nEmployer), including (without limitation) any proprietary knowledge, trade secrets, data, formulae, information and client and customer lists and all\npapers, resumes, and records (including computer records) of the documents containing such Confidential Information. Employee acknowledges that\nsuch Confidential Information is specialized, unique in nature and of great value to Employer, its subsidiaries or affiliates, and that such information\ngives Employer a competitive advantage. Employee agrees to (i) deliver or return to Employer, at Employer’s request at any time or upon\ntermination or expiration of his employment or as soon thereafter as possible, (A) all documents, computer tapes and disks, records, lists, data,\ndrawings, prints, notes and written information (and all copies thereof) furnished by Employer, its subsidiaries or affiliates, or prepared by Employee\nfor so long as Employee is employed by Employer, its subsidiaries or affiliates, and (B) subject to Section 1(d), all notebooks and other data relating\nto research or experiments or other work conducted by Employee in the scope of his employment or any Inventions made, created, authored,\nconceived, or reduced to practice by Employee, either alone or jointly with others, and (ii) subject to Section 1(d), make full disclosure relating to\nany Inventions. If Employee would like to keep certain property, such as material relating to professional societies or other non-confidential material,\nupon the termination of employment with Employer, he agrees to discuss such issues with Employer. Where such a request does not put Confidential\nInformation at risk, such request shall not be unreasonably denied.\n(b) Exclusive Services/Non-Competition. Employee acknowledges that the Employer and the Company do business throughout the\nworld, that he is\n4\ndisposing of his entire interest in Employer, and that he will have access to Confidential Information of Employer and the Company. In order to\nprotect Employer’s and the Company’s interest in its Confidential Information and goodwill, for the greater of: (1) the period that Employee is\nemployed by Employer, the Company, or their respective parents, subsidiaries or affiliates; or (2) two (2) years following the Effective Time (the\n“Restricted Period”), Employee shall not, anywhere in the world, directly or indirectly, without the prior written consent of Employer:\n(i) perform some or all of the duties assigned to Employee during his employment with Employer or any of its parents, subsidiaries\nor affiliates, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as\nan employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other\nbusiness, individual, partner, firm, corporation or other entity is then a Competitor (as defined herein) of Employer or the Company, or any of\ntheir respective parents, subsidiaries or affiliates. For purposes of this Agreement, a “Competitor” is any person or entity engaged in the\ndesign, development, manufacture and world wide sale of automated and manual in vitro diagnostic products for drug testing, cardiovascular\ndiseases, cerebrovascular diseases and thromboebolic diseases (the “Biosite Business”); or\n(ii) perform any services, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or\nother entity, whether as an employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent\nEmployee or such other business, individual, partner, firm, corporation or other entity is then a Competitor of Employer or the Company, or\nany of their respective subsidiaries or affiliates, with respect to the Biosite Business.\nEmployee and Employer acknowledge and agree that the business of Employer is global in nature, and that the terms set forth herein shall\napply on a worldwide basis.\nEmployee acknowledges that during the period of his employment with Employer, the Company and their respective parents, subsidiaries and\naffiliates, he will owe a duty of loyalty to his employer, and, consequently, understands and agrees that he will not perform any services, with or\nwithout pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as an employee, consultant,\nowner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other business, individual, partner, firm,\ncorporation or other entity is then a Competitor of Employer or the Company, or any of their respective parents, subsidiaries or affiliates, with\nrespect to any business then engaged in by the Employer, the Company or any of their respective parents, subsidiaries or affiliates.\nNotwithstanding the foregoing, the “beneficial ownership” by Employee, either individually or as a member of a “group,” as such terms are\nused in Regulation 13D of the General Rules and Regulations under the Securities Exchange Act of 1934, as\n5\namended (the “Exchange Act”), of not more than five percent (5%) of the voting stock of any publicly held corporation shall not constitute a\nviolation of this Agreement.\nIn addition, notwithstanding the foregoing, continued service by Employee during the Restricted Period as a member of the board of directors\nand/or as a scientific, clinical, technical or strategic advisor to any business, firm, corporation or other entity for which Employee is providing such\nservices as of the date of this Agreement shall not constitute a violation of this Section 2(b).\n(c) Non-Solicitation of Customers and Suppliers. During the Restricted Period, Employee shall not, directly or indirectly, use any\nConfidential Information to influence or attempt to influence customers or suppliers of Employer or the Company, or any of their respective\nsubsidiaries or affiliates, with whom he had contact during his employment with Employer, the Company or any of their respective affiliates, to\ndivert their business to any Competitor. During the Restricted Period, Employee shall not directly or indirectly, use influence or attempt to influence\ncustomers or suppliers of Employer or the Company, or any of their respective subsidiaries or affiliates, with whom he had contact during his\nemployment with Employer, the Company or any of their respective affiliates, to divert their business to any Competitor with respect to the Biosite\nBusiness.\n(d) Non-Solicitation of Employees. Employee recognizes that he possesses and will possess confidential information about other\nemployees of Employer and the Company, and their respective parents, subsidiaries and affiliates, relating to their education, experience, skills,\nabilities, compensation and benefits, and inter-personal relationships with customers of Employer, the Company, and any of their respective parents,\nsubsidiaries and affiliates. Employee recognizes that the information he possesses and will possess about these other employees is not generally\nknown, is of substantial value to Employer and the Company, and their respective subsidiaries or affiliates in developing their business and in\nsecuring and retaining customers, and has been and will be acquired by him because of his business position with Employer, its subsidiaries and\naffiliates. Employee agrees that, during the Restricted Period, he will not, directly or indirectly, use Confidential Information of Employer or the\nCompany, or any of their respective subsidiaries or affiliates to solicit, directly or indirectly, any person who is then an employee of Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates to terminate or limit their employment relationship with Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates, or to accept employment with any other person or entity. The foregoing shall\nnot be violated by general advertising not targeted at Employer employees or by Employee’s responding in any lawful manner to any person that\ninitiates contact with Employee during the Restricted Period.\n(e) Injunctive Relief. It is expressly agreed that Employer and/or the Company will or would suffer irreparable injury if Employee were\nto breach any of the provisions of this Section 2 and that Employer and/or the Company would by reason of any such breach be entitled to injunctive\nrelief in a court of appropriate jurisdiction without the need to post a bond or other security and without the need to demonstrate\n6\nspecial damages. The aforementioned injunctive relief is and shall be in addition to any other remedies that may be available to Employer or the\nCompany, or any of their respective subsidiaries or affiliates under this Agreement or otherwise.\n(f) Survival of Provisions. The obligations contained in this Section 2 shall survive the termination or expiration of Employee’s\nemployment with Employer, the Company or any of their respective parents, subsidiaries or affiliates, and shall be fully enforceable thereafter in the\ncase of the obligations contained in Section 2(a) and through the end of the Restricted Period in all other cases. If it is determined by a court of\ncompetent jurisdiction in any state that any restriction in this Section 2 is excessive in duration or scope or is unreasonable or unenforceable under\nthe laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the\nmaximum extent permitted by the law of that state.\n(g) No Additional Obligations of Employee Excused. All of the provisions of this Section 2 are in addition to any other written\nagreements on the subjects covered herein that Employee may have with Employer and/or any of its subsidiaries or affiliates, and are not meant to\nand do not excuse any additional obligations that Employee may have under such agreements.\n(h) Tolling for Periods of Breach. The Restricted Period shall be extended for a period equal to any period during which Employee is in\nmaterial breach of this Section 2 with respect to the portion of this Section 2 as to which Employee is in breach, provided that within a reasonable\nperiod of time after becoming aware of the breach, the Company and/or Employer notifies Employee that it believes Employee is in breach of this\nSection 2.\n(i) Third-Party Beneficiaries. Employer’s parents, subsidiaries and affiliates, and the Company, and its parents, subsidiaries and affiliates\nshall be third-party beneficiaries of this Section 2 of this Agreement, and shall be entitled to enforce its provisions against Employee.\n(j) Termination of Obligations. Notwithstanding anything to the contrary set forth herein, Employee’s obligations under Sections 2(b),\n2(c) and 2(d) shall immediately terminate and be of no further force or effect if the Employer or Company fails to make the payments or provide\nbenefits to Employee required under the Agreement or Employer’s Change in Control Severance Benefit Plan, and fails to cure within thirty\n(30) days following receipt of written notice from Employee of its failure to pay.\n3. Cooperation in Third-Party Disputes. Employee shall reasonably cooperate with Employer or the Company, or any of their respective\nsubsidiaries or affiliates and each of their respective attorneys or other legal representatives (collectively referred to as “Attorneys”) in connection\nwith any claim, litigation, or judicial or arbitral proceeding which is now pending or may hereinafter be brought against Employer or the Company,\nor any of their respective subsidiaries or affiliates by any third party related to\n7\nthe period of Employee’s employment with Employer. Employee’s duty of cooperation shall include, but shall not be limited to, (a) meeting with\nAttorneys by telephone or in person at mutually convenient times and places in order to state truthfully Employee’s knowledge of the matters at issue\nand recollection of events; (b) appearing at Attorneys’ request (and, to the extent reasonably possible, at a time convenient to Employee that does not\nconflict with the needs or requirements of Employee’s then current employer) as a witness at depositions, trials or other proceedings, without the\nnecessity of a subpoena, in order to state truthfully Employee’s knowledge of the matters at issue; and (c) signing at Attorneys’ request declarations\nor affidavits that truthfully state the matters of which Employee has knowledge. Employer shall promptly reimburse Employee for Employee’s actual\nand reasonable travel and other out-of-pocket expenses that Employee may incur in cooperating with Attorneys pursuant to this Section 3. In\naddition, to the extent that, after the termination of Employee’s employment for any reason, Employee provides cooperation pursuant to this\nSection 3, Employer shall, upon Employee request, compensate Employee at a reasonable rate for the time actually spent by Employee at\nEmployer’s request rendering such cooperation. The provisions of this Section 3 are in addition to any other written agreements on this subject that\nEmployee may have with Employer or the Company, or any of their respective subsidiaries or affiliates and are not meant to and do not excuse any\nadditional obligations that Employee may have under such agreements.\n4. Effect on Change in Control Severance Benefit Plan. Employee hereby agrees that the execution of this Agreement and the application of\nthe terms hereof shall not in any event constitute “Good Reason” as such term is defined in the Biosite Incorporated Change in Control Severance\nBenefit Plan effective October 22, 2004 (the “Biosite Severance Plan”) prior to the Effective Time. Employee hereby waives any claims to the\ncontrary. However, any such waiver is null and void after the Effective Time.\n5. Additional Consideration in Support of this Agreement. In consideration of Employee entering into this Agreement, Employee shall be\nentitled to the following benefits:\n(a) At the Effective Time, Employer shall cause the Employee to receive, with respect to each Employee Option, in consideration for the\ncancellation thereof, an amount in cash, without interest, equal to the product of (x) the total number of shares of Common Stock subject to the\nEmployee Option multiplied by (y) the excess, if any, of the Merger Consideration (as defined in the Merger Agreement) over the per share exercise\nprice of such Employee Option, less applicable taxes required to be withheld with respect to any such payment (the “Option Consideration”). In the\nevent that the exercise price of any Employee Option is equal to or greater than the Merger Consideration, such Employee Option shall be cancelled\nand have no further force or effect. The Option Consideration paid with respect to the Employee Options in accordance with the terms hereof shall\nbe deemed to have been paid in full satisfaction of all rights and privileges pertaining to the Employee Options and, on and after the Effective Time,\nEmployee shall have no further rights with respect to any Employee Option, other than the right to receive the Option Consideration as provided\nherein.\n8\nEmployee acknowledges that this Section 5(a) is in lieu of any benefits to which the Employee may be entitled under (i) Section 4(a)(1)(iii) of the\nBiosite Severance Plan and (ii) Section 5.9(a) of the Merger Agreement.\n(b) Employer shall pay Employee an amount equal to two times the Employee’s current rate of base salary ($459,251) (the “Current Base\nSalary”), which amount shall be payable in two equal installments. The first installment shall be paid at the Effective Time. The second installment\nshall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the termination of the Employee’s employment by\nthe Employer or the Company for any reason or no reason, or by the Employee for Good Cause (as defined herein) (the “Transition Period”). For\npurposes of this Agreement only, “Good Cause” means a requirement by the Employer or the Company that the Employee either relocate his\nprincipal place of work prior to the Effective Time or during the Transition Period, or work on more than a full-time basis, or perform work that is\nother than work that is essential and related to assisting with the reasonable transition of control of Employer. Employee acknowledges that this\nSection 5(b) is in lieu of any benefits to which the Employee may be entitled under Section 4(a)(1)(i) of the Biosite Severance Plan.\n(c) Employer shall pay the Employee an amount equal to two times the Employee’s Negotiated Bonus (as defined below) that is, a sum\nequal to the Employee’s Current Annual Base Salary, which amount shall be payable in two equal installments. The first installment shall be paid at\nthe Effective Time. The second installment shall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the\ntermination of the Employee’s employment by the Employer or the Company for any reason or no reason or by the Employee for Good Cause (as\ndefined in Section 5(b)). The Employee’s “Negotiated Bonus” is an amount equal to 50% of the Employee’s Current Base Salary.\n(d) Employee acknowledges that this Section 5 is in lieu of any benefits to which Employee may be entitled under (i) Section 4(a)(1)(i)\nof the Biosite Severance Plan, (ii) Section 4 (a)(1)(iii) of the Biosite Severance Plan, and (iii) Section 5.9(a) of the Merger Agreement. Section 4(a)\n(1)(ii) of the Biosite Severance Plan remains in full force and effect.\n6. Anything in this Agreement to the contrary notwithstanding, if at the time of Employee’s separation from service within the meaning of\nSection 409A of the Internal Revenue Code of 1986, as amended (the “Code”), the Employee is considered a “specified employee” within the\nmeaning of Section 409A(a)(2)(B)(i) of the Code, and if any payment or benefit that the Employee becomes entitled to under this Agreement or\nunder the Biosite Severance Plan is considered deferred compensation subject to interest, penalties and additional tax imposed pursuant to\nSection 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, then no such payment shall be payable or benefit\nshall be provided prior to the date that is the earliest of (i) six months and one day after the Employee’s date of termination, (ii) the Employee’s\ndeath, or (iii) such other date as will cause such payment not to be subject to such interest, penalties and additional tax, and the initial payment or\nprovision of benefit shall include a catch-up\n9\namount covering amounts that would otherwise have been paid during the first six-month period but for the application of this Section 6. The parties\nintend that this Agreement will be administered in accordance with Section 409A of the Code. The parties agree that this Agreement may be\namended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and\nregulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.\n7. Notices. All notices, demands, requests, consents, statements, satisfactions, waivers, designations, refusals, confirmations, denials and other\ncommunications that may be required or otherwise provided for or contemplated hereunder shall be in writing and shall be deemed to be properly\ngiven and received (a) upon delivery, if delivered in person or by e-mail or facsimile transmission with receipt acknowledged, (b) one business day\nafter having been deposited for overnight delivery with Federal Express or another comparable overnight courier service, or (c) three (3) business\ndays after having been deposited in any post office or mail depository regularly maintained by the U.S . Postal Service and sent by registered or\ncertified mail, postage prepaid, addressed to his residence address (or such other address as Employee may specify in a written notice to Employer)\nin the case of Employee, or to its principal office in the case of Employer.\n8. Benefits/Assignment. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective\nsuccessors and assigns, heirs and legal representatives. Employee may not assign any of his obligations under this agreement to any other person or\nentity without the prior written consent of Employer and the Company.\n9. Entire Agreement. This Agreement and the Merger Agreement contain the entire agreement of the parties, and supersedes all prior\nagreements, understandings and negotiations, whether written or oral, with respect to the subject matter hereof; provided, however, that the parties\nhereto acknowledge that this Agreement supersedes only certain provisions of the Biosite Severance Plan with respect to Employee and that, except\nas amended hereby, the Biosite Severance Plan remains in full force and effect in accordance with the terms thereof. However, for the avoidance of\ndoubt, none of the limitations related to the entitlement to benefits or the amount of benefits set out in Section 4 or Section 5 of the Biosite Severance\nPlan shall apply to amounts due under this Agreement. This Agreement may not be changed orally but only by an agreement in writing signed by the\nparty against whom enforcement of any waiver, change, modification, extension, or discharge is sought.\n10. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be\nineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, but shall be enforced to the\nmaximum extent permitted by law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such\nprovision in any other jurisdiction.\n10\n11. Arbitration. To the fullest extent allowed by law, any controversy, claim or dispute between Employee and Employer (and/or any of its\nowners, directors, officers, employees, affiliates, subsidiaries or agents) relating to or arising out of Employee’s employment or the cessation of that\nemployment will be submitted to JAMS for final and binding arbitration, to be held in Orange County, California, for determination in accordance\nwith the then current JAMS rules for the resolution of employment disputes, as the exclusive remedy for such controversy, claim or dispute. In any\nsuch arbitration, the parties may conduct discovery in accordance with the applicable rules of the arbitration forum, except that the arbitrator shall\nhave the authority to order and permit discovery as the arbitrator may deem necessary and appropriate in accordance with applicable state or federal\ndiscovery statutes. The arbitrator shall issue a reasoned, written decision, and shall have full authority to award all remedies which would be\navailable in court. The arbitrator will also have the power to direct that the party that substantially prevails in such arbitration proceeding be paid his\nor its reasonable attorneys’ fees by the other party or parties, to the extent the arbitrator deems appropriate. The parties shall share the filing fees\nrequired for the arbitration. Employer shall pay the arbitrator’s fees and any JAMS administrative expenses. The award of the arbitrator shall be final\nand binding upon the parties and may be entered as a judgment in any court of competent jurisdiction. Notwithstanding anything to the contrary\ncontained herein, Employer and Employee shall have their respective rights to seek and obtain injunctive relief through any court of competent\njurisdiction with respect to any controversy, claim or dispute to the extent permitted by law if such relief is not available, or not available in a timely\nmanner, through arbitration. Claims where mandatory arbitration is prohibited by law are not covered by this arbitration agreement, and such claims\nmay be presented by either Employee or Employer to the appropriate court or government agency. BY AGREEING TO THIS BINDING\nARBITRATION PROVISION, BOTH EMPLOYEE AND EMPLOYER GIVE UP ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO\nANY CLAIM SUBJECT TO ARBITRATION. This arbitration agreement is to be construed as broadly as is permissible under applicable law.\n12. Choice of Law. This Agreement shall be interpreted in accordance with the laws of the State of California without regard to the rules of\nconflict of laws.\n13. Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all\nof which together shall constitute one and the same instrument. Each counterpart may consist of a number of copies hereof each signed by less than\nall, but together signed by all of the parties hereto. Facsimile transmission of any signed original counterpart and/or retransmission of any signed\nfacsimile transmission shall be deemed the same as the delivery of an original.\n14. Effectiveness of Agreement. Notwithstanding anything to the contrary set forth herein, this Agreement shall be contingent and effective\nupon the occurrence of the Effective Time, and if the Effective Time does not occur, including as a result of the termination of the Merger\nAgreement in accordance with its terms, this Agreement shall have no effect, and shall be null and void.\n[signature page follows]\n11\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.\nINVERNESS MEDICAL INNOVATIONS, INC.\nA Delaware corporation\nBy: /s/ Ron Zwanziger\nName: Ron Zwanziger\nTitle: CEO\nBIOSITE INCORPORATED\nA Delaware corporation\nBy: /s/ Chris Twomey\nName: Chris Twomey\nTitle: Senior VP Finance, CFO\nKENNETH BUECHLER\n/s/ Kenneth Buechler\nSignature Page to Non-Competition, Non-Disclosure\nand Intellectual Property Assignment Agreement\n12\nSCHEDULE A\nCALIFORNIA LABOR CODE SECTION 2870\nINVENTION ON OWN TIME-EXEMPTION FROM AGREEMENT\n“(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably\nanticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being\nrequired to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”\n13	EX-10.2 4 dex102.htm NON-COMPETITION, NON-DISCLOSURE AND INTELLECTUAL AGREEMENT -\nKENNETH F. BUECHLER\nExhibit 10.2\nNON-COMPETITION, NON-DISCLOSURE\nAND\nINTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT\nThis Non-competition, Non-disclosure and Intellectual Property Assignment Agreement (the “Agreement”) entered into as of May 17, 2007, is\nhereby made by and between INVERNESS MEDICAL INNOVATIONS, INC., a Delaware corporation (the “Company”) and, BIOSITE\nINCORPORATED, a Delaware corporation (the “Employer”), on the one hand, and Kenneth Buechler, an individual, who is a resident of and\nemployed in the State of California (“Employee”), on the other hand.\nA. The Company, Employer, and Inca Acquisition, Inc., a wholly-owned subsidiary of the Company, are entering into an Agreement and Plan\nof Merger dated as of May 17, 2007 (the “Merger Agreement”), which provides for the acquisition of Employer by the Company, upon which\nEmployer would become a wholly owned subsidiary of the Company;\nB. Employee, Company and Employer desire to enter into this Agreement in connection with the transactions contemplated by the Merger\nAgreement, contingent and effective upon the Effective Time (as defined in the Merger Agreement);\nC. Employee is the owner of 256,993 shares of Common Stock of Employer and has options to purchase 362,896 shares of Common Stock of\nEmployer (the “Employee Options™), and thereby stands to benefit by, and receive consideration from, the transactions contemplated by the Merger\nAgreement.\nD. Contingent and effective upon the Effective Time, Employee will become employed by Employer.\nE. Company and Employer desire to protect their interest in the business acquired, including the goodwill of that business, from unfair\ncompetition or misappropriation of the intellectual property of the business.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Assignment of Intellectual Property Rights.\n(a) Definition of “Inventions.” As used herein, the term “Inventions” shall mean all inventions, discoveries, improvements, original\nworks of authorship, trade secrets, formulas, techniques, data, programs, systems, specifications, documentation, algorithms, flow charts, logic\ndiagrams, source codes, object codes, processes, and other technical, business, product, marketing or financial information, plans, or other subject\nmatter pertaining to the Company, Employer or any of their respective parents, subsidiaries, affiliates, customers, consultants or licensees, whether or\nnot patented, tested, reduced to practice, or subject to patent, trademark, copyright, trade secret, mask work or other forms of protection (including\nall rights to obtain, register, perfect, renew,\nextend, continue, divide and enforce these proprietary interests), which are made, created, authored, conceived, modified, enhanced or reduced to\npractice by Employee, either alone or jointly with others, during Employee’s employment with Employer or the Company or any of their respective\nparents, subsidiaries or affiliates, and for so long as Employee is otherwise employed by any of them, whether or not during normal working hours,\nwhich (A) relate to the actual or anticipated business, activities, research, or investigations of Employer or the Company or any of their respective\nsubsidiaries or affiliates or (B) result from or are suggested by work performed by Employee for Employer or the Company or any of their respective\nparents, subsidiaries or affiliates (whether or not made or conceived during normal working hours or on the premises of Employer), or (C) which\nresult, to any extent, from use of the time, material, proprietary information, premises or property of Employer or the Company or any of their\nrespective parents, subsidiaries or affiliates.\n(b) Work for Hire. Subject to Section 1(d), Employee expressly acknowledges that all copyrightable aspects of the Inventions are to be\nconsidered “works made for hire” within the meaning of the Copyright Act of 1976, as amended (the “Act”), and that Employer is to be the “author”\nwithin the meaning of such Act for all purposes. All such copyrightable works, as well as all copies of such works in whatever medium fixed or\nembodied, shall be owned exclusively by Employer as of its creation, and Employee hereby expressly disclaims any and all interest in any of such\ncopyrightable works and waives any right of droit morale or similar rights.\n(c) Assignment. Subject to Section 1(d), Employee acknowledges and agrees that all Inventions shall be the sole property of Employer or\nany other entity designated by Employer. Employee hereby conveys and irrevocably assigns to Employer, without further consideration, all his right,\ntitle and interest in and to, and all claims for past infringement of, all Inventions, including, with respect to any of the foregoing, all rights of\ncopyright, patent, trademark, trade secret, mask works, and any and all other proprietary rights therein, the right to modify and create derivative\nworks, the right to invoke the benefit of any priority under any international convention, and all rights to register and renew same. This assignment is\nintended to and does extend to Inventions which have not yet been created.\n(d) Exceptions. Notwithstanding the foregoing, and provided that Employee does not wrongfully misappropriate any Confidential\nInformation or Trade Secrets, Employee understands that the provisions of this Agreement requiring disclosure and assignment of Inventions to\nEmployer do not apply to any invention which qualifies under the provisions of California Labor Code Section 2870 set forth in Schedule A or any\nsimilar law applicable to Employer or Employee. Employee agrees to identify all Inventions made by Employee that Employee believes meet the\ncriteria of California Labor Code Section 2870 to Employer in confidence to permit a determination as to whether or not the Inventions are the\nproperty of Employer, and Employee agrees to disclose all information Employer reasonably requests about Inventions, including those Employee\ncontends qualify under this exception to his duty to assign Inventions. “Trade Secrets” shall mean the whole or any portion or phase of any plan,\ntechnique, method, design, process, procedure, or improvement of Employer, the Company or any of their\n2\nrespective affiliates or subsidiaries that is valuable and not generally known to Competitors, whether or not in written or tangible form. Trade Secrets\nshall not include any materials or information that is or becomes publicly known through no fault of Employee or is disclosed by the Company to\nthird parties without an obligation of confidentiality.\n(e) Proprietary Notices; No Filings; Waiver of Moral Rights. Employee acknowledges that subject to Section 1(d), all Inventions shall, at\nthe sole option of Employer, bear Employer’s patent, copyright, trademark, trade secret, and mask work notices. Subject to Section 1(d), Employee\nagrees not to file any patent, copyright, or trademark applications relating to any Invention, except with the prior written consent of an authorized\nrepresentative of the Company. Subject to Section 1(d), Employee hereby expressly disclaims any and all interest in any Inventions and waives any\nright of droit morale or similar rights, such as rights of integrity or the right to be attributed as the creator of the Invention.\n(f) Further Assurances. Employee agrees to assist Employer, or any party designated by Employer, promptly on Employer’s reasonable\nrequest and at Employer’s expense, whether before or after the termination of employment, however such termination may occur, in perfecting,\nregistering, maintaining, and enforcing, in any jurisdiction, Employer’s rights in the Inventions by performing all acts and executing all documents\nand instruments deemed necessary or convenient by Employer, including, by way of illustration and not limitation:\n(i) Executing assignments, applications, and other documents and instruments in connection with (A) obtaining patents, copyrights,\ntrademarks, mask works, or other proprietary protections for the Inventions and (B) confirming the assignment to Employer of all right, title,\nand interest in the Inventions or otherwise establishing Employer’s exclusive ownership rights therein.\n(ii) Cooperating in the prosecution of patent, copyright, trademark and mask work applications, as well as in the enforcement of\nEmployer’s rights in the Inventions, including, but not limited to, testifying in court or before any patent, copyright, trademark or mask work\nregistry office or any other administrative body.\nEmployee shall be reimbursed for all out-of-pocket costs incurred in connection with the foregoing, if such assistance is requested by\nEmployer. In addition, to the extent that, after the termination of employment for whatever reason, Employee’s technical expertise shall be required\nin connection with the fulfillment of the aforementioned obligations, Employer shall compensate Employee at a reasonable rate for the time actually\nspent by Employee at Employer’s request rendering such assistance.\n(g) Power of Attorney. Subject to Section 1(d), Employee hereby irrevocably appoints Employer to be his attorney-in-fact to execute any\ndocument and to take any action in his name and on his behalf solely for the purpose of giving to\n3\nEmployer the full benefit of the assignment provisions set forth above to the extent that after reasonable effort by Employer, Employee does not\ncomply with his obligations set forth in this Section 1.\n(h) Disclosure of Inventions. Subject to Section 1(d), Employee shall make full and prompt disclosure to Employer of all Inventions\nsubject to assignment to Employer and all information relating thereto in Employee’s possession or under his control as to possible applications and\nuse thereof.\n2. Non-Disclosure of Confidential Information, Exclusive Services/Non-Competition and Non-Solicitation.\n(a) Confidentiality. Employee acknowledges that in his employment with Employer or the Company he will occupy a position of trust\nand confidence. Employee shall not, except as may be required in the normal course of business to perform his duties hereunder or as required by\napplicable law, without limitation in time or until such information shall have become public other than by Employee’s unauthorized disclosure,\ndisclose to others or use, whether directly or indirectly, any Confidential Information. “Confidential Information” shall mean confidential or\nproprietary information about Employer, or the Company, or their respective subsidiaries or affiliates, or their respective clients and customers, that\nis not disclosed by Employer for financial reporting purposes and that was learned by Employee in the course of his employment by Employer or the\nCompany, or their respective parents, subsidiaries or affiliates (or during any period in which Employee performed services for or on behalf of\nEmployer), including (without limitation) any proprietary knowledge, trade secrets, data, formulae, information and client and customer lists and all\npapers, resumes, and records (including computer records) of the documents containing such Confidential Information. Employee acknowledges that\nsuch Confidential Information is specialized, unique in nature and of great value to Employer, its subsidiaries or affiliates, and that such information\ngives Employer a competitive advantage. Employee agrees to (i) deliver or return to Employer, at Employer’s request at any time or upon\ntermination or expiration of his employment or as soon thereafter as possible, (A) all documents, computer tapes and disks, records, lists, data,\ndrawings, prints, notes and written information (and all copies thereof) furnished by Employer, its subsidiaries or affiliates, or prepared by Employee\nfor so long as Employee is employed by Employer, its subsidiaries or affiliates, and (B) subject to Section 1(d), all notebooks and other data relating\nto research or experiments or other work conducted by Employee in the scope of his employment or any Inventions made, created, authored,\nconceived, or reduced to practice by Employee, either alone or jointly with others, and (ii) subject to Section 1(d), make full disclosure relating to\nany Inventions. If Employee would like to keep certain property, such as material relating to professional societies or other non-confidential material,\nupon the termination of employment with Employer, he agrees to discuss such issues with Employer. Where such a request does not put Confidential\nInformation at risk, such request shall not be unreasonably denied.\n(b) Exclusive Services/Non-Competition. Employee acknowledges that the Employer and the Company do business throughout the\nworld, that he is\n \ndisposing of his entire interest in Employer, and that he will have access to Confidential Information of Employer and the Company. In order to\nprotect Employer’s and the Company’s interest in its Confidential Information and goodwill, for the greater of: (1) the period that Employee is\nemployed by Employer, the Company, or their respective parents, subsidiaries or affiliates; or (2) two (2) years following the Effective Time (the\n“Restricted Period”), Employee shall not, anywhere in the world, directly or indirectly, without the prior written consent of Employer:\n(i) perform some or all of the duties assigned to Employee during his employment with Employer or any of its parents, subsidiaries\nor affiliates, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as\nan employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other\nbusiness, individual, partner, firm, corporation or other entity is then a Competitor (as defined herein) of Employer or the Company, or any of\ntheir respective parents, subsidiaries or affiliates. For purposes of this Agreement, a “Competitor” is any person or entity engaged in the\ndesign, development, manufacture and world wide sale of automated and manual in vitro diagnostic products for drug testing, cardiovascular\ndiseases, cerebrovascular diseases and thromboebolic diseases (the “Biosite Business™); or\n(ii) perform any services, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or\nother entity, whether as an employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent\nEmployee or such other business, individual, partner, firm, corporation or other entity is then a Competitor of Employer or the Company, or\nany of their respective subsidiaries or affiliates, with respect to the Biosite Business.\nEmployee and Employer acknowledge and agree that the business of Employer is global in nature, and that the terms set forth herein shall\napply on a worldwide basis.\nEmployee acknowledges that during the period of his employment with Employer, the Company and their respective parents, subsidiaries and\naffiliates, he will owe a duty of loyalty to his employer, and, consequently, understands and agrees that he will not perform any services, with or\nwithout pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as an employee, consultant,\nowner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other business, individual, partner, firm,\ncorporation or other entity is then a Competitor of Employer or the Company, or any of their respective parents, subsidiaries or affiliates, with\nrespect to any business then engaged in by the Employer, the Company or any of their respective parents, subsidiaries or affiliates.\nNotwithstanding the foregoing, the “beneficial ownership” by Employee, either individually or as a member of a “group,” as such terms are\nused in Regulation 13D of the General Rules and Regulations under the Securities Exchange Act of 1934, as\n5\namended (the “Exchange Act”), of not more than five percent (5%) of the voting stock of any publicly held corporation shall not constitute a\nviolation of this Agreement.\nIn addition, notwithstanding the foregoing, continued service by Employee during the Restricted Period as a member of the board of directors\nand/or as a scientific, clinical, technical or strategic advisor to any business, firm, corporation or other entity for which Employee is providing such\nservices as of the date of this Agreement shall not constitute a violation of this Section 2(b).\n(c) Non-Solicitation of Customers and Suppliers. During the Restricted Period, Employee shall not, directly or indirectly, use any\nConfidential Information to influence or attempt to influence customers or suppliers of Employer or the Company, or any of their respective\nsubsidiaries or affiliates, with whom he had contact during his employment with Employer, the Company or any of their respective affiliates, to\ndivert their business to any Competitor. During the Restricted Period, Employee shall not directly or indirectly, use influence or attempt to influence\ncustomers or suppliers of Employer or the Company, or any of their respective subsidiaries or affiliates, with whom he had contact during his\nemployment with Employer, the Company or any of their respective affiliates, to divert their business to any Competitor with respect to the Biosite\nBusiness.\n(d) Non-Solicitation of Employees. Employee recognizes that he possesses and will possess confidential information about other\nemployees of Employer and the Company, and their respective parents, subsidiaries and affiliates, relating to their education, experience, skills,\nabilities, compensation and benefits, and inter-personal relationships with customers of Employer, the Company, and any of their respective parents,\nsubsidiaries and affiliates. Employee recognizes that the information he possesses and will possess about these other employees is not generally\nknown, is of substantial value to Employer and the Company, and their respective subsidiaries or affiliates in developing their business and in\nsecuring and retaining customers, and has been and will be acquired by him because of his business position with Employer, its subsidiaries and\naffiliates. Employee agrees that, during the Restricted Period, he will not, directly or indirectly, use Confidential Information of Employer or the\nCompany, or any of their respective subsidiaries or affiliates to solicit, directly or indirectly, any person who is then an employee of Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates to terminate or limit their employment relationship with Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates, or to accept employment with any other person or entity. The foregoing shall\nnot be violated by general advertising not targeted at Employer employees or by Employee’s responding in any lawful manner to any person that\ninitiates contact with Employee during the Restricted Period.\n(e) Injunctive Relief. It is expressly agreed that Employer and/or the Company will or would suffer irreparable injury if Employee were\nto breach any of the provisions of this Section 2 and that Employer and/or the Company would by reason of any such breach be entitled to injunctive\nrelief in a court of appropriate jurisdiction without the need to post a bond or other security and without the need to demonstrate\n6\nspecial damages. The aforementioned injunctive relief is and shall be in addition to any other remedies that may be available to Employer or the\nCompany, or any of their respective subsidiaries or affiliates under this Agreement or otherwise.\n(f) Survival of Provisions. The obligations contained in this Section 2 shall survive the termination or expiration of Employee’s\nemployment with Employer, the Company or any of their respective parents, subsidiaries or affiliates, and shall be fully enforceable thereafter in the\ncase of the obligations contained in Section 2(a) and through the end of the Restricted Period in all other cases. If it is determined by a court of\ncompetent jurisdiction in any state that any restriction in this Section 2 is excessive in duration or scope or is unreasonable or unenforceable under\nthe laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the\nmaximum extent permitted by the law of that state.\n(g) No Additional Obligations of Employee Excused. All of the provisions of this Section 2 are in addition to any other written\nagreements on the subjects covered herein that Employee may have with Employer and/or any of its subsidiaries or affiliates, and are not meant to\nand do not excuse any additional obligations that Employee may have under such agreements.\n(h) Tolling for Periods of Breach. The Restricted Period shall be extended for a period equal to any period during which Employee is in\nmaterial breach of this Section 2 with respect to the portion of this Section 2 as to which Employee is in breach, provided that within a reasonable\nperiod of time after becoming aware of the breach, the Company and/or Employer notifies Employee that it believes Employee is in breach of this\nSection 2.\n(i) Third-Party Beneficiaries. Employer’s parents, subsidiaries and affiliates, and the Company, and its parents, subsidiaries and affiliates\nshall be third-party beneficiaries of this Section 2 of this Agreement, and shall be entitled to enforce its provisions against Employee.\n(j) Termination of Obligations. Notwithstanding anything to the contrary set forth herein, Employee’s obligations under Sections 2(b),\n2(c) and 2(d) shall immediately terminate and be of no further force or effect if the Employer or Company fails to make the payments or provide\nbenefits to Employee required under the Agreement or Employer’s Change in Control Severance Benefit Plan, and fails to cure within thirty\n(30) days following receipt of written notice from Employee of its failure to pay.\n3. Cooperation in Third-Party Disputes. Employee shall reasonably cooperate with Employer or the Company, or any of their respective\nsubsidiaries or affiliates and each of their respective attorneys or other legal representatives (collectively referred to as “Attorneys™) in connection\nwith any claim, litigation, or judicial or arbitral proceeding which is now pending or may hereinafter be brought against Employer or the Company,\nor any of their respective subsidiaries or affiliates by any third party related to\n7\nthe period of Employee’s employment with Employer. Employee’s duty of cooperation shall include, but shall not be limited to, (a) meeting with\nAttorneys by telephone or in person at mutually convenient times and places in order to state truthfully Employee’s knowledge of the matters at issue\nand recollection of events; (b) appearing at Attorneys’ request (and, to the extent reasonably possible, at a time convenient to Employee that does not\nconflict with the needs or requirements of Employee’s then current employer) as a witness at depositions, trials or other proceedings, without the\nnecessity of a subpoena, in order to state truthfully Employee’s knowledge of the matters at issue; and (c) signing at Attorneys’ request declarations\nor affidavits that truthfully state the matters of which Employee has knowledge. Employer shall promptly reimburse Employee for Employee’s actual\nand reasonable travel and other out-of-pocket expenses that Employee may incur in cooperating with Attorneys pursuant to this Section 3. In\naddition, to the extent that, after the termination of Employee’s employment for any reason, Employee provides cooperation pursuant to this\nSection 3, Employer shall, upon Employee request, compensate Employee at a reasonable rate for the time actually spent by Employee at\nEmployer’s request rendering such cooperation. The provisions of this Section 3 are in addition to any other written agreements on this subject that\nEmployee may have with Employer or the Company, or any of their respective subsidiaries or affiliates and are not meant to and do not excuse any\nadditional obligations that Employee may have under such agreements.\n4. Effect on Change in Control Severance Benefit Plan. Employee hereby agrees that the execution of this Agreement and the application of\nthe terms hereof shall not in any event constitute “Good Reason” as such term is defined in the Biosite Incorporated Change in Control Severance\nBenefit Plan effective October 22, 2004 (the “Biosite Severance Plan”) prior to the Effective Time. Employee hereby waives any claims to the\ncontrary. However, any such waiver is null and void after the Effective Time.\n5. Additional Consideration in Support of this Agreement. In consideration of Employee entering into this Agreement, Employee shall be\nentitled to the following benefits:\n \n(a) At the Effective Time, Employer shall cause the Employee to receive, with respect to each Employee Option, in consideration for the\ncancellation thereof, an amount in cash, without interest, equal to the product of (x) the total number of shares of Common Stock subject to the\nEmployee Option multiplied by (y) the excess, if any, of the Merger Consideration (as defined in the Merger Agreement) over the per share exercise\nprice of such Employee Option, less applicable taxes required to be withheld with respect to any such payment (the “Option Consideration”). In the\nevent that the exercise price of any Employee Option is equal to or greater than the Merger Consideration, such Employee Option shall be cancelled\nand have no further force or effect. The Option Consideration paid with respect to the Employee Options in accordance with the terms hereof shall\nbe deemed to have been paid in full satisfaction of all rights and privileges pertaining to the Employee Options and, on and after the Effective Time,\nEmployee shall have no further rights with respect to any Employee Option, other than the right to receive the Option Consideration as provided\nherein.\nEmployee acknowledges that this Section 5(a) is in lieu of any benefits to which the Employee may be entitled under (i) Section 4(a)(1)(iii) of the\nBiosite Severance Plan and (ii) Section 5.9(a) of the Merger Agreement.\n(b) Employer shall pay Employee an amount equal to two times the Employee’s current rate of base salary ($459,251) (the “Current Base\nSalary”), which amount shall be payable in two equal installments. The first installment shall be paid at the Effective Time. The second installment\nshall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the termination of the Employee’s employment by\nthe Employer or the Company for any reason or no reason, or by the Employee for Good Cause (as defined herein) (the “Transition Period”). For\npurposes of this Agreement only, “Good Cause” means a requirement by the Employer or the Company that the Employee either relocate his\nprincipal place of work prior to the Effective Time or during the Transition Period, or work on more than a full-time basis, or perform work that is\nother than work that is essential and related to assisting with the reasonable transition of control of Employer. Employee acknowledges that this\nSection 5(b) is in lieu of any benefits to which the Employee may be entitled under Section 4(a)(1)(i) of the Biosite Severance Plan.\n(c) Employer shall pay the Employee an amount equal to two times the Employee’s Negotiated Bonus (as defined below) that is, a sum\nequal to the Employee’s Current Annual Base Salary, which amount shall be payable in two equal installments. The first installment shall be paid at\nthe Effective Time. The second installment shall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the\ntermination of the Employee’s employment by the Employer or the Company for any reason or no reason or by the Employee for Good Cause (as\ndefined in Section 5(b)). The Employee’s “Negotiated Bonus” is an amount equal to 50% of the Employee’s Current Base Salary.\n(d) Employee acknowledges that this Section 5 is in lieu of any benefits to which Employee may be entitled under (i) Section 4(a)(1)(i)\nof the Biosite Severance Plan, (ii) Section 4 (a)(1)(iii) of the Biosite Severance Plan, and (iii) Section 5.9(a) of the Merger Agreement. Section 4(a)\n(1)(i) of the Biosite Severance Plan remains in full force and effect.\n6. Anything in this Agreement to the contrary notwithstanding, if at the time of Employee’s separation from service within the meaning of\nSection 409A of the Internal Revenue Code of 1986, as amended (the “Code”), the Employee is considered a “specified employee” within the\nmeaning of Section 409A(a)(2)(B)(i) of the Code, and if any payment or benefit that the Employee becomes entitled to under this Agreement or\nunder the Biosite Severance Plan is considered deferred compensation subject to interest, penalties and additional tax imposed pursuant to\nSection 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, then no such payment shall be payable or benefit\nshall be provided prior to the date that is the earliest of (i) six months and one day after the Employee’s date of termination, (ii) the Employee’s\ndeath, or (iii) such other date as will cause such payment not to be subject to such interest, penalties and additional tax, and the initial payment or\nprovision of benefit shall include a catch-up\namount covering amounts that would otherwise have been paid during the first six-month period but for the application of this Section 6. The parties\nintend that this Agreement will be administered in accordance with Section 409A of the Code. The parties agree that this Agreement may be\namended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and\nregulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.\n7. Notices. All notices, demands, requests, consents, statements, satisfactions, waivers, designations, refusals, confirmations, denials and other\ncommunications that may be required or otherwise provided for or contemplated hereunder shall be in writing and shall be deemed to be properly\ngiven and received (a) upon delivery, if delivered in person or by e-mail or facsimile transmission with receipt acknowledged, (b) one business day\nafter having been deposited for overnight delivery with Federal Express or another comparable overnight courier service, or (c) three (3) business\ndays after having been deposited in any post office or mail depository regularly maintained by the U.S. Postal Service and sent by registered or\ncertified mail, postage prepaid, addressed to his residence address (or such other address as Employee may specify in a written notice to Employer)\nin the case of Employee, or to its principal office in the case of Employer.\n8. Benefits/Assignment. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective\nsuccessors and assigns, heirs and legal representatives. Employee may not assign any of his obligations under this agreement to any other person or\nentity without the prior written consent of Employer and the Company.\n \n9. Entire Agreement. This Agreement and the Merger Agreement contain the entire agreement of the parties, and supersedes all prior\nagreements, understandings and negotiations, whether written or oral, with respect to the subject matter hereof; provided, however, that the parties\nhereto acknowledge that this Agreement supersedes only certain provisions of the Biosite Severance Plan with respect to Employee and that, except\nas amended hereby, the Biosite Severance Plan remains in full force and effect in accordance with the terms thereof. However, for the avoidance of\ndoubt, none of the limitations related to the entitlement to benefits or the amount of benefits set out in Section 4 or Section 5 of the Biosite Severance\nPlan shall apply to amounts due under this Agreement. This Agreement may not be changed orally but only by an agreement in writing signed by the\nparty against whom enforcement of any waiver, change, modification, extension, or discharge is sought.\n10. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be\nineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, but shall be enforced to the\nmaximum extent permitted by law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such\nprovision in any other jurisdiction.\n10\n11. Arbitration. To the fullest extent allowed by law, any controversy, claim or dispute between Employee and Employer (and/or any of its\nowners, directors, officers, employees, affiliates, subsidiaries or agents) relating to or arising out of Employee’s employment or the cessation of that\nemployment will be submitted to JAMS for final and binding arbitration, to be held in Orange County, California, for determination in accordance\nwith the then current JAMS rules for the resolution of employment disputes, as the exclusive remedy for such controversy, claim or dispute. In any\nsuch arbitration, the parties may conduct discovery in accordance with the applicable rules of the arbitration forum, except that the arbitrator shall\nhave the authority to order and permit discovery as the arbitrator may deem necessary and appropriate in accordance with applicable state or federal\ndiscovery statutes. The arbitrator shall issue a reasoned, written decision, and shall have full authority to award all remedies which would be\navailable in court. The arbitrator will also have the power to direct that the party that substantially prevails in such arbitration proceeding be paid his\nor its reasonable attorneys’ fees by the other party or parties, to the extent the arbitrator deems appropriate. The parties shall share the filing fees\nrequired for the arbitration. Employer shall pay the arbitrator’s fees and any JAMS administrative expenses. The award of the arbitrator shall be final\nand binding upon the parties and may be entered as a judgment in any court of competent jurisdiction. Notwithstanding anything to the contrary\ncontained herein, Employer and Employee shall have their respective rights to seek and obtain injunctive relief through any court of competent\njurisdiction with respect to any controversy, claim or dispute to the extent permitted by law if such relief is not available, or not available in a timely\nmanner, through arbitration. Claims where mandatory arbitration is prohibited by law are not covered by this arbitration agreement, and such claims\nmay be presented by either Employee or Employer to the appropriate court or government agency. BY AGREEING TO THIS BINDING\nARBITRATION PROVISION, BOTH EMPLOYEE AND EMPLOYER GIVE UP ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO\nANY CLAIM SUBJECT TO ARBITRATION. This arbitration agreement is to be construed as broadly as is permissible under applicable law.\n12. Choice of Law. This Agreement shall be interpreted in accordance with the laws of the State of California without regard to the rules of\nconflict of laws.\n13. Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all\nof which together shall constitute one and the same instrument. Each counterpart may consist of a number of copies hereof each signed by less than\nall, but together signed by all of the parties hereto. Facsimile transmission of any signed original counterpart and/or retransmission of any signed\nfacsimile transmission shall be deemed the same as the delivery of an original.\n14. Effectiveness of Agreement. Notwithstanding anything to the contrary set forth herein, this Agreement shall be contingent and effective\nupon the occurrence of the Effective Time, and if the Effective Time does not occur, including as a result of the termination of the Merger\nAgreement in accordance with its terms, this Agreement shall have no effect, and shall be null and void.\n[signature page follows]\n11\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.\nINVERNESS MEDICAL INNOVATIONS, INC.\nA Delaware corporation\nBy: /s/ Ron Zwanziger\nName: Ron Zwanziger\nTitle: CEO\nBIOSITE INCORPORATED\nA Delaware corporation\nBy:  /s/ Chris Twomey\nName: Chris Twomey\nTitle: Senior VP Finance, CFO\nKENNETH BUECHLER\n/s/ Kenneth Buechler\nSignature Page to Non-Competition, Non-Disclosure\nand Intellectual Property Assignment Agreement\n12\nSCHEDULE A\nCALIFORNIA LABOR CODE SECTION 2870\nINVENTION ON OWN TIME-EXEMPTION FROM AGREEMENT\n“(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an (b)\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably\nanticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\nTo the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being\nrequired to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”\n13	EX-10.2 4 dex102.htm NON-COMPETITION, NON-DISCLOSURE AND INTELLECTUAL AGREEMENT -\nKENNETH F. BUECHLER\nExhibit 10.2\nNON-COMPETITION, NON-DISCLOSURE\nAND\nINTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT\nThis Non-competition, Non-disclosure and Intellectual Property Assignment Agreement (the "Agreement") entered into as of May 17, 2007, is\nhereby made by and between INVERNESS MEDICAL INNOVATIONS, INC., a Delaware corporation (the "Company") and, BIOSITE\nINCORPORATED, a Delaware corporation (the "Employer"), on the one hand, and Kenneth Buechler, an individual, who is a resident of and\nemployed in the State of California ("Employee"), on the other hand.\nA. The Company, Employer, and Inca Acquisition, Inc., a wholly-owned subsidiary of the Company, are entering into an Agreement and Plan\nof Merger dated as of May 17, 2007 (the "Merger Agreement"), which provides for the acquisition of Employer by the Company, upon which\nEmployer would become a wholly owned subsidiary of the Company;\nB. Employee, Company and Employer desire to enter into this Agreement in connection with the transactions contemplated by the Merger\nAgreement, contingent and effective upon the Effective Time (as defined in the Merger Agreement);\nC. Employee is the owner of 256,993 shares of Common Stock of Employer and has options to purchase 362,896 shares of Common Stock of\nEmployer (the "Employee Options"), and thereby stands to benefit by, and receive consideration from, the transactions contemplated by the Merger\nAgreement.\nD. Contingent and effective upon the Effective Time, Employee will become employed by Employer.\nE. Company and Employer desire to protect their interest in the business acquired, including the goodwill of that business, from unfair\ncompetition or misappropriation of the intellectual property of the business.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Assignment of Intellectual Property. Rights.\n(a) Definition of "Inventions." As used herein, the term "Inventions" shall mean all inventions, discoveries, improvements, original\nworks of authorship, trade secrets, formulas, techniques, data, programs, systems, specifications, documentation, algorithms, flow charts, logic\ndiagrams, source codes, object codes, processes, and other technical, business, product, marketing or financial information, plans, or other subject\nmatter pertaining to the Company, Employer or any of their respective parents, subsidiaries, affiliates, customers, consultants or licensees, whether\nor\nnot patented, tested, reduced to practice, or subject to patent, trademark, copyright, trade secret, mask work or other forms of protection (including\nall rights to obtain, register, perfect, renew,\nextend, continue, divide and enforce these proprietary interests), which are made, created, authored, conceived, modified, enhanced or reduced to\npractice by Employee, either alone or jointly with others, during Employee's employment with Employer or the Company or any of their respective\nparents, subsidiaries or affiliates, and for so long as Employee is otherwise employed by any of them, whether or not during normal working hours,\nwhich (A) relate to the actual or anticipated business, activities, research, or investigations of Employer or the Company or any of their respective\nsubsidiaries or affiliates or (B) result from or are suggested by work performed by Employee for Employer or the Company or any of their respective\nparents, subsidiaries or affiliates (whether or not made or conceived during normal working hours or on the premises of Employer), or (C) which\nresult, to any extent, from use of the time, material, proprietary information, premises or property of Employer or the Company or any of their\nrespective parents, subsidiaries or affiliates.\n(b) Work for Hire. Subject to Section 1(d), Employee expressly acknowledges that all copyrightable aspects of the Inventions are to be\nconsidered "works made for hire" within the meaning of the Copyright Act of 1976, as amended (the "Act"), and that Employer is to be the "author"\nwithin the meaning of such Act for all purposes. All such copyrightable works, as well as all copies of such works in whatever medium fixed or\nembodied, shall be owned exclusively by Employer as of its creation, and Employee hereby expressly disclaims any and all interest in any of such\ncopyrightable works and waives any right of droit morale or similar rights.\n(c) Assignment. Subject to Section 1(d), Employee acknowledges and agrees that all Inventions shall be the sole property of Employer or\nany other entity designated by Employer. Employee hereby conveys and irrevocably assigns to Employer, without further consideration, all his right,\ntitle and interest in and to, and all claims for past infringement of, all Inventions, including, with respect to any of the foregoing, all rights of\ncopyright, patent, trademark, trade secret, mask works, and any and all other proprietary rights therein, the right to modify and create derivative\nworks, the right to invoke the benefit of any priority under any international convention, and all rights to register and renew same. This assignment\nis\nintended to and does extend to Inventions which have not yet been created.\n(d) Exceptions. Notwithstanding the foregoing, and provided that Employee does not wrongfully misappropriate any Confidential\nInformation or Trade Secrets, Employee understands that the provisions of this Agreement requiring disclosure and assignment of Inventions to\nEmployer do not apply to any invention which qualifies under the provisions of California Labor Code Section 2870 set forth in Schedule A or any\nsimilar law applicable to Employer or Employee. Employee agrees to identify all Inventions made by Employee that Employee believes meet the\ncriteria of California Labor Code Section 2870 to Employer in confidence to permit a determination as to whether or not the Inventions are the\nproperty of Employer, and Employee agrees to disclose all information Employer reasonably requests about Inventions, including those Employee\ncontends qualify under this exception to his duty to assign Inventions. "Trade Secrets" shall mean the whole or any portion or phase of any plan,\ntechnique, method, design, process, procedure, or improvement of Employer, the Company or any of their\n2\nrespective affiliates or subsidiaries that is valuable and not generally known to Competitors, whether or not in written or tangible form. Trade Secrets\nshall not include any materials or information that is or becomes publicly known through no fault of Employee or is disclosed by the Company\nto\nthird parties without an obligation of confidentiality.\n(e) Proprietary Notices; No Filings; Waiver of Moral Rights. Employee acknowledges that subject to Section 1(d), all Inventions shall, at\nthe\nsole option of Employer, bear Employer's patent, copyright, trademark, trade secret, and mask work notices. Subject to Section 1(d), Employee\nagrees not to file any patent, copyright, or trademark applications relating to any Invention, except with the prior written consent of an authorized\nrepresentative of the Company. Subject to Section 1(d), Employee hereby expressly disclaims any and all interest in any Inventions and waives any\nright of droit morale or similar rights, such as rights of integrity or the right to be attributed as the creator of the Invention.\n(f)\nFurther Assurances. Employee agrees to assist Employer, or any party designated by Employer, promptly on Employer's reasonable\nrequest and at Employer's expense, whether before or after the termination of employment, however such termination may occur, in perfecting,\nregistering, maintaining, and enforcing, in any jurisdiction, Employer's rights in the Inventions by performing all acts and executing all documents\nand instruments deemed necessary or convenient by Employer, including, by way of illustration and not limitation:\n(i) Executing assignments, applications, and other documents and instruments in connection with (A) obtaining patents, copyrights,\ntrademarks, mask works, or other proprietary protections for the Inventions and (B) confirming the assignment to Employer of all right, title,\nand interest in the Inventions or otherwise establishing Employer's exclusive ownership rights therein.\n(ii) Cooperating in the prosecution of patent, copyright, trademark and mask work applications, as well as in the enforcement of\nEmployer's rights in the Inventions, including, but not limited to, testifying in court or before any patent, copyright, trademark or mask work\nregistry office or any other administrative body.\nEmployee shall be reimbursed for all out-of-pocket costs incurred in connection with the foregoing, if such assistance is requested by\nEmployer. In addition, to the extent that, after the termination of employment for whatever reason, Employee's technical expertise shall be required\nin connection with the fulfillment of the aforementioned obligations, Employer shall compensate Employee at a reasonable rate for the time actually\nspent by Employee at Employer's request rendering such assistance.\n(g) Power of Attorney.. Subject to Section 1(d), Employee hereby irrevocably appoints Employer to be his attorney-in-fact to execute any\ndocument and to take any action in his name and on his behalf solely for the purpose of giving to\n3\nEmployer the full benefit of the assignment provisions set forth above to the extent that after reasonable effort by Employer, Employee does not\ncomply with his obligations set forth in this Section 1.\n(h) Disclosure of Inventions. Subject to Section 1(d), Employee shall make full and prompt disclosure to Employer of all Inventions\nsubject to assignment to Employer and all information relating thereto in Employee's possession or under his control as to possible applications and\nuse thereof.\n2. Non-Disclosure of Confidential Information, Exclusive Services/Non-Competition and Non-Solicitation.\n(a) Confidentiality.. Employee acknowledges that in his employment with Employer or the Company he will occupy a position of trust\nand confidence. Employee shall not, except as may be required in the normal course of business to perform his duties hereunder or as required by\napplicable law, without limitation in time or until such information shall have become public other than by Employee's unauthorized disclosure,\ndisclose to others or use, whether directly or indirectly, any Confidential Information. "Confidential Information" shall mean confidential or\nproprietary information about Employer, or the Company, or their respective subsidiaries or affiliates, or their respective clients and customers, that\nis not disclosed by Employer for financial reporting purposes and that was learned by Employee in the course of his employment by Employer or\nthe\nCompany, or their respective parents, subsidiaries or affiliates (or during any period in which Employee performed services for or on behalf of\nEmployer), including (without limitation) any proprietary knowledge, trade secrets, data, formulae, information and client and customer lists and all\npapers, resumes, and records (including computer records) of the documents containing such Confidentia Information. Employee acknowledges that\nsuch Confidential Information is specialized, unique in nature and of great value to Employer, its subsidiaries or affiliates, and that such information\ngives Employer a competitive advantage. Employee agrees to (i) deliver or return to Employer, at Employer's request at any time or upon\ntermination\nor expiration of his employment or as soon thereafter as possible, (A) all documents, computer tapes and disks, records, lists,\ndata,\ndrawings, prints, notes and written information (and all copies thereof) furnished by Employer, its subsidiaries or affiliates, or prepared by Employee\nfor so long as Employee is employed by Employer, its subsidiaries or affiliates, and (B) subject to Section 1(d), all notebooks and other data relating\nto research or experiments or other work conducted by Employee in the scope of his employment or any Inventions made, created, authored,\nconceived, or reduced to practice by Employee, either alone or jointly with others, and (ii) subject to Section 1(d), make full disclosure relating\nto\nany Inventions. If Employee would like to keep certain property, such as material relating to professional societies or other non-confidential material,\nupon the termination of employment with Employer, he agrees to discuss such issues with Employer. Where such a request does not put Confidential\nInformation at risk, such request shall not be unreasonably denied.\n(b) Exclusive Services/Non-Competition. Employee acknowledges that the Employer and the Company do business throughout the\nworld, that he is\n4\ndisposing of his entire interest in Employer, and that he will have access to Confidential Information of Employer and the Company. In order to\nprotect Employer's and the Company's interest in its Confidential Information and goodwill, for the greater of: (1) the period that Employee is\nemployed by Employer, the Company, or their respective parents, subsidiaries or affiliates; or (2) two (2) years following the Effective Time (the\n"Restricted Period"), Employee shall not, anywhere in the world, directly or indirectly, without the prior written consent of Employer:\n(i) perform some or all of the duties assigned to Employee during his employment with Employer or any of its parents, subsidiaries\nor affiliates, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as\nan employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other\nbusiness, individual, partner, firm, corporation or other entity is then a Competitor (as defined herein) of Employer or the Company, or any of\ntheir respective parents, subsidiaries or affiliates. For purposes of this Agreement, a "Competitor" is any person or entity engaged in the\ndesign, development, manufacture and world wide sale of automated and manual in vitro diagnostic products for drug testing, cardiovascular\ndiseases, cerebrovascular diseases and thromboebolic diseases (the "Biosite Business"); or\n(ii) perform any services, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or\nother entity, whether as an employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent\nEmployee or such other business, individual, partner, firm, corporation or other entity is then a Competitor of Employer or the Company,\nor\nany of their respective subsidiaries or affiliates, with respect to the Biosite Business.\nEmployee and Employer acknowledge and agree that the business of Employer is global in nature, and that the terms set forth herein shall\napply on a worldwide basis.\nEmployee acknowledges that during the period of his employment with Employer, the Company and their respective parents, subsidiaries and\naffiliates, he will owe a duty of loyalty to his employer, and, consequently, understands and agrees that he will not perform any services, with or\nwithout pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as an employee, consultant,\nowner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other business, individual, partner, firm,\ncorporation or other entity is then a Competitor of Employer or the Company, or any of their respective parents, subsidiaries or affiliates, with\nrespect to any business then engaged in by the Employer, the Company or any of their respective parents, subsidiaries or affiliates.\nNotwithstanding the foregoing, the "beneficial ownership" by Employee, either individually or as a member of a "group," as such terms are\nused in Regulation 13D of the General Rules and Regulations under the Securities Exchange Act of 1934, as\n5\namended (the "Exchange Act"), of not more than five percent (5%) of the voting stock of any publicly held corporation shall not constitute a\nviolation of this Agreement.\nIn addition, notwithstanding the foregoing, continued service by Employee during the Restricted Period as a member of the board of directors\nand/or as a scientific, clinical, technical or strategic advisor to any business, firm, corporation or other entity for which Employee is providing such\nservices as of the date of this Agreement shall not constitute a violation of this Section 2(b).\n(c) Non-Solicitation of Customers and Suppliers. During the Restricted Period, Employee shall not, directly or indirectly, use any\nConfidential Information to influence or attempt to influence customers or suppliers of Employer or the Company, or any of their respective\nsubsidiaries or affiliates, with whom he had contact during his employment with Employer, the Company or any of their respective affiliates, to\ndivert their business to any Competitor. During the Restricted Period, Employee shall not directly or indirectly, use influence or attempt to influence\ncustomers or suppliers of Employer or the Company, or any of their respective subsidiaries or affiliates, with whom he had contact during his\nemployment with Employer, the Company or any of their respective affiliates, to divert their business to any Competitor with respect to the Biosite\nBusiness.\n(d) Non-Solicitation of Employees. Employee recognizes that he possesses and will possess confidential information about other\nemployees of Employer and the Company, and their respective parents, subsidiaries and affiliates, relating to their education, experience, skills,\nabilities,\ncompensation and benefits, and inter-personal relationships with customers of Employer, the Company, and any of their respective parents,\nsubsidiaries and affiliates. Employee recognizes that the information he possesses and will possess about these other employees is not generally\nknown, is of substantial value to Employer and the Company, and their respective subsidiaries or affiliates in developing their business and\nin\nsecuring and retaining customers, and has been and will be acquired by him because of his business position with Employer, its subsidiaries and\naffiliates. Employee agrees that, during the Restricted Period, he will not, directly or indirectly, use Confidential Information of Employer or the\nCompany, or any of their respective subsidiaries or affiliates to solicit, directly or indirectly, any person who is then an employee of Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates to terminate or limit their employment relationship with Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates, or to accept employment with any other person or entity. The foregoing shall\nnot be violated by general advertising not targeted at Employer employees or by Employee's responding in any lawful manner to any person that\ninitiates contact with Employee during the Restricted Period.\n(e) Injunctive Relief. It is expressly agreed that Employer and/or the Company will or would suffer irreparable injury if Employee were\nto breach any of the provisions of this Section 2 and that Employer and/or the Company would by reason of any such breach be entitled to injunctive\nrelief in a court of appropriate jurisdiction without the need to post a bond or other security and without the need to demonstrate\n6\nspecial damages. The aforementioned injunctive relief is and shall be in addition to any other remedies that may be available to Employer or the\nCompany, or any of their respective subsidiaries or affiliates under this Agreement or otherwise.\n(f) Survival of Provisions. The obligations contained in this Section 2 shall survive the termination or expiration of Employee's\nemployment with Employer, the Company or any of their respective parents, subsidiaries or affiliates, and shall be fully enforceable thereafter in the\ncase\nof the obligations contained in Section 2(a) and through the end of the Restricted Period in all other cases. If it is determined by a court of\ncompetent jurisdiction in any state that any restriction in this Section 2 is excessive in duration or scope or is unreasonable or unenforceable under\nthe laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the\nmaximum extent permitted by the law of that state.\n(g) No Additional Obligations of Employee Excused. All of the provisions of this Section 2 are in addition to any other written\nagreements on the subjects covered herein that Employee may have with Employer and/or any of its subsidiaries or affiliates, and are not meant to\nand do not excuse any additional obligations that Employee may have under such agreements.\n(h) Tolling for Periods of Breach. The Restricted Period shall be extended for a period equal to any period during which Employee is in\nmaterial breach of this Section 2 with respect to the portion of this Section 2 as to which Employee is in breach, provided that within a reasonable\nperiod of time after becoming aware of the breach, the Company and/or Employer notifies Employee that it believes Employee is in breach of this\nSection 2.\n(i) Third-Party. Beneficiaries. Employer's parents, subsidiaries and affiliates, and the Company, and its parents, subsidiaries and affiliates\nshall be third-party beneficiaries of this Section 2 of this Agreement, and shall be entitled to enforce its provisions against Employee.\n(j) Termination of Obligations. Notwithstanding anything to the contrary set forth herein, Employee's obligations under Sections 2(b),\n2(c) and 2(d) shall immediately terminate and be of no further force or effect if the Employer or Company fails to make the payments or provide\nbenefits to Employee required under the Agreement or Employer's Change in Control Severance Benefit Plan, and fails to cure within thirty\n(30) days following receipt of written notice from Employee of its failure to pay.\n3. Cooperation in Third-Party. Disputes. Employee shall reasonably cooperate with Employer or the Company, or any of their respective\nsubsidiaries or affiliates and each of their respective attorneys or other legal representatives (collectively referred to as "Attorneys") in connection\nwith any claim, litigation, or judicial or arbitral proceeding which is now pending or may hereinafter be brought against Employer or the Company,\nor any of their respective subsidiaries or affiliates by any third party related to\n7\nthe period of Employee's employment with Employer. Employee's duty of cooperation shall include, but shall not be limited to, (a) meeting with\nAttorneys by telephone or in person at mutually convenient times and places in order to state truthfully Employee's knowledge of the matters at issue\nand recollection of events; (b) appearing at Attorneys' request (and, to the extent reasonably possible, at a time convenient to Employee that does not\nconflict with the needs or requirements of Employee's then current employer) as a witness at depositions, trials or other proceedings, without the\nnecessity of a subpoena, in order to state truthfully Employee's knowledge of the matters at issue; and (c) signing at Attorneys' request declarations\nor affidavits that truthfully state the matters of which Employee has knowledge. Employer shall promptly reimburse Employee for Employee's actual\nand reasonable travel and other out-of-pocket expenses that Employee may incur in cooperating with Attorneys pursuant to this Section 3. In\naddition, to the extent that, after the termination of Employee's employment for any reason, Employee provides cooperation pursuant to this\nSection 3, Employer shall, upon Employee request, compensate Employee at a reasonable rate for the time actually spent by Employee at\nEmployer's request rendering such cooperation. The provisions of this Section 3 are in addition to any other written agreements on this subject that\nEmployee may have with Employer or the Company, or any of their respective subsidiaries or affiliates and are not meant to and do not excuse any\nadditional obligations that Employee may have under such agreements.\n4. Effect on Change in Control Severance Benefit Plan. Employee hereby agrees that the execution of this Agreement and the application of\nthe\nterms hereof shall not in any event constitute "Good Reason" as such term is defined in the Biosite Incorporated Change in Control Severance\nBenefit Plan effective October 22, 2004 (the "Biosite Severance Plan") prior to the Effective Time. Employee hereby waives any claims to the\ncontrary. However, any such waiver is null and void after the Effective Time.\n5. Additional Consideration in Support of this Agreement. In consideration of Employee entering into this Agreement, Employee shall be\nentitled to the following benefits:\n(a) At the Effective Time, Employer shall cause the Employee to receive, with respect to each Employee Option, in consideration for the\ncancellation thereof, an amount in cash, without interest, equal to the product of (x) the total number of shares of Common Stock subject to the\nEmployee Option multiplied by (y) the excess, if any, of the Merger Consideration (as defined in the Merger Agreement) over the per share exercise\nprice of such Employee Option, less applicable taxes required to be withheld with respect to any such payment (the "Option Consideration") In the\nevent that the exercise price of any Employee Option is equal to or greater than the Merger Consideration, such Employee Option shall be cancelled\nand have no further force or effect. The Option Consideration paid with respect to the Employee Options in accordance with the terms hereof shall\nbe deemed to have been paid in full satisfaction of all rights and privileges pertaining to the Employee Options and, on and after the Effective Time,\nEmployee shall have no further rights with respect to any Employee Option, other than the right to receive the Option Consideration as provided\nherein.\n8\nEmployee acknowledges that this Section 5(a) is in lieu of any benefits to which the Employee may be entitled under (i) Section 4(a)(1)(iii) of the\nBiosite Severance Plan and (ii) Section 5.9(a) of the Merger Agreement.\n(b) Employer shall pay Employee an amount equal to two times the Employee's current rate of base salary ($459,251) (the "Current Base\nSalary"), which amount shall be payable in two equal installments. The first installment shall be paid at the Effective Time. The second installment\nshall\nbe\npaid\nupon\nthe\nfirst\nto\noccur\nof\n(i)\nthe\nsix\nmonth\nanniversary\nof\nthe\nEffective\nTime\nor\n(ii)\nthe\ntermination\nof\nthe\nEmployee's\nemployment\nby\nthe Employer or the Company for any reason or no reason, or by the Employee for Good Cause (as defined herein) (the "Transition Period"). For\npurposes of this Agreement only, "Good Cause" means a requirement by the Employer or the Company that the Employee either relocate his\nprincipal place of work prior to the Effective Time or during the Transition Period, or work on more than a full-time basis, or perform work that is\nother than work that is essential and related to assisting with the reasonable transition of control of Employer. Employee acknowledges that this\nSection 5(b) is in lieu of any benefits to which the Employee may be entitled under Section 4(a)(1)(i) of the Biosite Severance Plan.\n(c) Employer shall pay the Employee an amount equal to two times the Employee's Negotiated Bonus (as defined below) that is, a sum\nequal to the Employee's Current Annual Base Salary, which amount shall be payable in two equal installments. The first installment shall be paid at\nthe Effective Time. The second installment shall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the\ntermination of the Employee's employment by the Employer or the Company for any reason or no reason or by the Employee for Good Cause (as\ndefined in Section 5(b)). The Employee's "Negotiated Bonus" is an amount equal to 50% of the Employee's Current Base Salary.\n(d) Employee acknowledges that this Section 5 is in lieu of any benefits to which Employee may be entitled under (i) Section 4(a)(1)(i)\nof the Biosite Severance Plan, (ii) Section 4 (a)(1)(iii) of the Biosite Severance Plan, and (iii) Section 5.9(a) of the Merger Agreement. Section 4(a)\n(1)(ii) of the Biosite Severance Plan remains in full force and effect.\n6. Anything in this Agreement to the contrary notwithstanding, if at the time of Employee's separation from service within the meaning of\nSection 409A of the Internal Revenue Code of 1986, as amended (the "Code"), the Employee is considered a "specified employee" within the\nmeaning of Section 409A(a)(2)(B)(i) of the Code, and if any payment or benefit that the Employee becomes entitled to under this Agreement or\nunder the Biosite Severance Plan is considered deferred compensation subject to interest, penalties and additional tax imposed pursuant to\nSection 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, then no such payment shall be payable\nor\nbenefit\nshall be provided prior to the date that is the earliest of (i) six months and one day after the Employee's date of termination, (ii) the Employee's\ndeath, or (iii) such other date as will cause such payment not to be subject to such interest, penalties and additional tax, and the initial payment\nor\nprovision of benefit shall include a catch-up\n9\namount covering amounts that would otherwise have been paid during the first six-month period but for the application of this Section 6. The parties\nintend that this Agreement will be administered in accordance with Section 409A of the Code. The parties agree that this Agreement may be\namended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and\nregulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.\n7. Notices. All notices, demands, requests, consents, statements, satisfactions, waivers, designations, refusals, confirmations, denials and\nother\ncommunications that may be required or otherwise provided for or contemplated hereunder shall be in writing and shall be deemed to be properly\ngiven and received (a) upon delivery, if delivered in person or by e-mail or facsimile transmission with receipt acknowledged, (b) one business day\nafter having been deposited for overnight delivery with Federal Express or another comparable overnight courier service, or (c) three (3) business\ndays after having been deposited in any post office or mail depository regularly maintained by the U.S. Postal Service and sent by registered or\ncertified mail, postage prepaid, addressed to his residence address (or such other address as Employee may specify in a written notice to Employer)\nin the case of Employee, or to its principal office in the case of Employer.\n8. Benefits/Assignment. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective\nsuccessors and assigns, heirs and legal representatives. Employee may not assign any of his obligations under this agreement to any other person\nor\nentity without the prior written consent of Employer and the Company.\n9. Entire Agreement. This Agreement and the Merger Agreement contain the entire agreement of the parties, and supersedes all prior\nagreements, understandings and negotiations, whether written or oral, with respect to the subject matter hereof; provided, however, that the parties\nhereto acknowledge that this Agreement supersedes only certain provisions of the Biosite Severance Plan with respect to Employee and that, except\nas\namended\nhereby, the Biosite Severance Plan remains in full force and effect in accordance with the terms thereof. However, for the avoidance of\ndoubt, none of the limitations related to the entitlement to benefits or the amount of benefits set out in Section 4 or Section 5 of the Biosite Severance\nPlan shall apply to amounts due under this Agreement. This Agreement may not be changed orally but only by an agreement in writing signed by the\nparty against whom enforcement of any waiver, change, modification, extension, or discharge is sought.\n10. Severability.. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be\nineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, but shall be enforced to the\nmaximum extent permitted by law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such\nprovision in any other jurisdiction.\n10\n11. Arbitration. To the fullest extent allowed by law, any controversy, claim or dispute between Employee and Employer (and/or any of its\nowners, directors, officers, employees, affiliates, subsidiaries or agents) relating to or arising out of Employee's employment or the cessation of that\nemployment will be submitted to JAMS for final and binding arbitration, to be held in Orange County, California, for determination in accordance\nwith the then current JAMS rules for the resolution of employment disputes, as the exclusive remedy for such controversy, claim or dispute. In any\nsuch arbitration, the parties may conduct discovery in accordance with the applicable rules of the arbitration forum, except that the arbitrator shall\nhave the authority to order and permit discovery as the arbitrator may deem necessary and appropriate in accordance with applicable state or federal\ndiscovery statutes. The arbitrator shall issue a reasoned, written decision, and shall have full authority to award all remedies which would be\navailable in court. The arbitrator will also have the power to direct that the party that substantially prevails in such arbitration proceeding be paid\nhis\nor its reasonable attorneys' fees by the other party or parties, to the extent the arbitrator deems appropriate. The parties shall share the filing fees\nrequired for the arbitration. Employer shall pay the arbitrator's fees and any JAMS administrative expenses. The award of the arbitrator shall be final\nand binding upon the parties and may be entered as a judgment in any court of competent jurisdiction. Notwithstanding anything to the contrary\ncontained herein, Employer and Employee shall have their respective rights to seek and obtain injunctive relief through any court of competent\njurisdiction with respect to any controversy, claim or dispute to the extent permitted by law if such relief is not available, or not available in a timely\nmanner, through arbitration. Claims where mandatory arbitration is prohibited by law are not covered by this arbitration agreement, and such claims\nmay be presented by either Employee or Employer to the appropriate court or government agency. BY AGREEING TO THIS BINDING\nARBITRATION PROVISION, BOTH EMPLOYEE AND EMPLOYER GIVE UP ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO\nANY CLAIM SUBJECT TO ARBITRATION. This arbitration agreement is to be construed as broadly as is permissible under applicable law.\n12. Choice of Law. This Agreement shall be interpreted in accordance with the laws of the State of California without regard to the rules of\nconflict of laws.\n13. Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all\nof which together shall constitute one and the same instrument. Each counterpart may consist of a number of copies hereof each signed by less than\nall, but together signed by all of the parties hereto. Facsimile transmission of any signed original counterpart and/or retransmission of any signed\nfacsimile transmission shall be deemed the same as the delivery of an original.\n14. Effectiveness of Agreement. Notwithstanding anything to the contrary set forth herein, this Agreement shall be contingent and effective\nupon the occurrence of the Effective Time, and if the Effective Time does not occur, including as a result of the termination of the Merger\nAgreement in accordance with its terms, this Agreement shall have no effect, and shall be null and void.\n[signature page follows]\n11\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.\nINVERNESS MEDICAL INNOVATIONS, INC.\nA Delaware corporation\nBy:\n/s/ Ron Zwanziger\nName: Ron Zwanziger\nTitle: CEO\nBIOSITE INCORPORATED\nA Delaware corporation\nBy: /s/ Chris Twomey\nName: Chris Twomey\nTitle: Senior VP Finance, CFO\nKENNETH BUECHLER\n/s/ Kenneth Buechler\nSignature Page to Non-Competition, Non-Disclosure\nand Intellectual Property Assignment Agreement\n12\nSCHEDULE A\nCALIFORNIA LABOR CODE SECTION 2870\nINVENTION ON OWN TIME-EXEMPTION FROM AGREEMENT\n"(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer's equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably\nanticipated research or development of the employer; or\n(2)\nResult from any work performed by the employee for the employer.\n(b)\nTo the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being\nrequired to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable."\n13	EX-10.2 4 dex102.htm NON-COMPETITION, NON-DISCLOSURE AND INTELLECTUAL AGREEMENT -\nKENNETH F. BUECHLER\nExhibit 10.2\nNON-COMPETITION, NON-DISCLOSURE\nAND\nINTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT\nThis Non-competition, Non-disclosure and Intellectual Property Assignment Agreement (the “Agreement”) entered into as of May 17, 2007, is\nhereby made by and between INVERNESS MEDICAL INNOVATIONS, INC., a Delaware corporation (the “Company”) and, BIOSITE\nINCORPORATED, a Delaware corporation (the “Employer”), on the one hand, and Kenneth Buechler, an individual, who is a resident of and\nemployed in the State of California (“Employee”), on the other hand.\nA. The Company, Employer, and Inca Acquisition, Inc., a wholly-owned subsidiary of the Company, are entering into an Agreement and Plan\nof Merger dated as of May 17, 2007 (the “Merger Agreement”), which provides for the acquisition of Employer by the Company, upon which\nEmployer would become a wholly owned subsidiary of the Company;\nB. Employee, Company and Employer desire to enter into this Agreement in connection with the transactions contemplated by the Merger\nAgreement, contingent and effective upon the Effective Time (as defined in the Merger Agreement);\nC. Employee is the owner of 256,993 shares of Common Stock of Employer and has options to purchase 362,896 shares of Common Stock of\nEmployer (the “Employee Options”), and thereby stands to benefit by, and receive consideration from, the transactions contemplated by the Merger\nAgreement.\nD. Contingent and effective upon the Effective Time, Employee will become employed by Employer.\nE. Company and Employer desire to protect their interest in the business acquired, including the goodwill of that business, from unfair\ncompetition or misappropriation of the intellectual property of the business.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Assignment of Intellectual Property Rights.\n(a) Definition of “Inventions.” As used herein, the term “Inventions” shall mean all inventions, discoveries, improvements, original\nworks of authorship, trade secrets, formulas, techniques, data, programs, systems, specifications, documentation, algorithms, flow charts, logic\ndiagrams, source codes, object codes, processes, and other technical, business, product, marketing or financial information, plans, or other subject\nmatter pertaining to the Company, Employer or any of their respective parents, subsidiaries, affiliates, customers, consultants or licensees, whether or\nnot patented, tested, reduced to practice, or subject to patent, trademark, copyright, trade secret, mask work or other forms of protection (including\nall rights to obtain, register, perfect, renew,\nextend, continue, divide and enforce these proprietary interests), which are made, created, authored, conceived, modified, enhanced or reduced to\npractice by Employee, either alone or jointly with others, during Employee’s employment with Employer or the Company or any of their respective\nparents, subsidiaries or affiliates, and for so long as Employee is otherwise employed by any of them, whether or not during normal working hours,\nwhich (A) relate to the actual or anticipated business, activities, research, or investigations of Employer or the Company or any of their respective\nsubsidiaries or affiliates or (B) result from or are suggested by work performed by Employee for Employer or the Company or any of their respective\nparents, subsidiaries or affiliates (whether or not made or conceived during normal working hours or on the premises of Employer), or (C) which\nresult, to any extent, from use of the time, material, proprietary information, premises or property of Employer or the Company or any of their\nrespective parents, subsidiaries or affiliates.\n(b) Work for Hire. Subject to Section 1(d), Employee expressly acknowledges that all copyrightable aspects of the Inventions are to be\nconsidered “works made for hire” within the meaning of the Copyright Act of 1976, as amended (the “Act”), and that Employer is to be the “author”\nwithin the meaning of such Act for all purposes. All such copyrightable works, as well as all copies of such works in whatever medium fixed or\nembodied, shall be owned exclusively by Employer as of its creation, and Employee hereby expressly disclaims any and all interest in any of such\ncopyrightable works and waives any right of droit morale or similar rights.\n(c) Assignment. Subject to Section 1(d), Employee acknowledges and agrees that all Inventions shall be the sole property of Employer or\nany other entity designated by Employer. Employee hereby conveys and irrevocably assigns to Employer, without further consideration, all his right,\ntitle and interest in and to, and all claims for past infringement of, all Inventions, including, with respect to any of the foregoing, all rights of\ncopyright, patent, trademark, trade secret, mask works, and any and all other proprietary rights therein, the right to modify and create derivative\nworks, the right to invoke the benefit of any priority under any international convention, and all rights to register and renew same. This assignment is\nintended to and does extend to Inventions which have not yet been created.\n(d) Exceptions. Notwithstanding the foregoing, and provided that Employee does not wrongfully misappropriate any Confidential\nInformation or Trade Secrets, Employee understands that the provisions of this Agreement requiring disclosure and assignment of Inventions to\nEmployer do not apply to any invention which qualifies under the provisions of California Labor Code Section 2870 set forth in Schedule A or any\nsimilar law applicable to Employer or Employee. Employee agrees to identify all Inventions made by Employee that Employee believes meet the\ncriteria of California Labor Code Section 2870 to Employer in confidence to permit a determination as to whether or not the Inventions are the\nproperty of Employer, and Employee agrees to disclose all information Employer reasonably requests about Inventions, including those Employee\ncontends qualify under this exception to his duty to assign Inventions. “Trade Secrets” shall mean the whole or any portion or phase of any plan,\ntechnique, method, design, process, procedure, or improvement of Employer, the Company or any of their\n2\nrespective affiliates or subsidiaries that is valuable and not generally known to Competitors, whether or not in written or tangible form. Trade Secrets\nshall not include any materials or information that is or becomes publicly known through no fault of Employee or is disclosed by the Company to\nthird parties without an obligation of confidentiality.\n(e) Proprietary Notices; No Filings; Waiver of Moral Rights. Employee acknowledges that subject to Section 1(d), all Inventions shall, at\nthe sole option of Employer, bear Employer’s patent, copyright, trademark, trade secret, and mask work notices. Subject to Section 1(d), Employee\nagrees not to file any patent, copyright, or trademark applications relating to any Invention, except with the prior written consent of an authorized\nrepresentative of the Company. Subject to Section 1(d), Employee hereby expressly disclaims any and all interest in any Inventions and waives any\nright of droit morale or similar rights, such as rights of integrity or the right to be attributed as the creator of the Invention.\n(f) Further Assurances. Employee agrees to assist Employer, or any party designated by Employer, promptly on Employer’s reasonable\nrequest and at Employer’s expense, whether before or after the termination of employment, however such termination may occur, in perfecting,\nregistering, maintaining, and enforcing, in any jurisdiction, Employer’s rights in the Inventions by performing all acts and executing all documents\nand instruments deemed necessary or convenient by Employer, including, by way of illustration and not limitation:\n(i) Executing assignments, applications, and other documents and instruments in connection with (A) obtaining patents, copyrights,\ntrademarks, mask works, or other proprietary protections for the Inventions and (B) confirming the assignment to Employer of all right, title,\nand interest in the Inventions or otherwise establishing Employer’s exclusive ownership rights therein.\n(ii) Cooperating in the prosecution of patent, copyright, trademark and mask work applications, as well as in the enforcement of\nEmployer’s rights in the Inventions, including, but not limited to, testifying in court or before any patent, copyright, trademark or mask work\nregistry office or any other administrative body.\nEmployee shall be reimbursed for all out-of-pocket costs incurred in connection with the foregoing, if such assistance is requested by\nEmployer. In addition, to the extent that, after the termination of employment for whatever reason, Employee’s technical expertise shall be required\nin connection with the fulfillment of the aforementioned obligations, Employer shall compensate Employee at a reasonable rate for the time actually\nspent by Employee at Employer’s request rendering such assistance.\n(g) Power of Attorney. Subject to Section 1(d), Employee hereby irrevocably appoints Employer to be his attorney-in-fact to execute any\ndocument and to take any action in his name and on his behalf solely for the purpose of giving to\n3\nEmployer the full benefit of the assignment provisions set forth above to the extent that after reasonable effort by Employer, Employee does not\ncomply with his obligations set forth in this Section 1.\n(h) Disclosure of Inventions. Subject to Section 1(d), Employee shall make full and prompt disclosure to Employer of all Inventions\nsubject to assignment to Employer and all information relating thereto in Employee’s possession or under his control as to possible applications and\nuse thereof.\n2. Non-Disclosure of Confidential Information, Exclusive Services/Non-Competition and Non-Solicitation.\n(a) Confidentiality. Employee acknowledges that in his employment with Employer or the Company he will occupy a position of trust\nand confidence. Employee shall not, except as may be required in the normal course of business to perform his duties hereunder or as required by\napplicable law, without limitation in time or until such information shall have become public other than by Employee’s unauthorized disclosure,\ndisclose to others or use, whether directly or indirectly, any Confidential Information. “Confidential Information” shall mean confidential or\nproprietary information about Employer, or the Company, or their respective subsidiaries or affiliates, or their respective clients and customers, that\nis not disclosed by Employer for financial reporting purposes and that was learned by Employee in the course of his employment by Employer or the\nCompany, or their respective parents, subsidiaries or affiliates (or during any period in which Employee performed services for or on behalf of\nEmployer), including (without limitation) any proprietary knowledge, trade secrets, data, formulae, information and client and customer lists and all\npapers, resumes, and records (including computer records) of the documents containing such Confidential Information. Employee acknowledges that\nsuch Confidential Information is specialized, unique in nature and of great value to Employer, its subsidiaries or affiliates, and that such information\ngives Employer a competitive advantage. Employee agrees to (i) deliver or return to Employer, at Employer’s request at any time or upon\ntermination or expiration of his employment or as soon thereafter as possible, (A) all documents, computer tapes and disks, records, lists, data,\ndrawings, prints, notes and written information (and all copies thereof) furnished by Employer, its subsidiaries or affiliates, or prepared by Employee\nfor so long as Employee is employed by Employer, its subsidiaries or affiliates, and (B) subject to Section 1(d), all notebooks and other data relating\nto research or experiments or other work conducted by Employee in the scope of his employment or any Inventions made, created, authored,\nconceived, or reduced to practice by Employee, either alone or jointly with others, and (ii) subject to Section 1(d), make full disclosure relating to\nany Inventions. If Employee would like to keep certain property, such as material relating to professional societies or other non-confidential material,\nupon the termination of employment with Employer, he agrees to discuss such issues with Employer. Where such a request does not put Confidential\nInformation at risk, such request shall not be unreasonably denied.\n(b) Exclusive Services/Non-Competition. Employee acknowledges that the Employer and the Company do business throughout the\nworld, that he is\n4\ndisposing of his entire interest in Employer, and that he will have access to Confidential Information of Employer and the Company. In order to\nprotect Employer’s and the Company’s interest in its Confidential Information and goodwill, for the greater of: (1) the period that Employee is\nemployed by Employer, the Company, or their respective parents, subsidiaries or affiliates; or (2) two (2) years following the Effective Time (the\n“Restricted Period”), Employee shall not, anywhere in the world, directly or indirectly, without the prior written consent of Employer:\n(i) perform some or all of the duties assigned to Employee during his employment with Employer or any of its parents, subsidiaries\nor affiliates, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as\nan employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other\nbusiness, individual, partner, firm, corporation or other entity is then a Competitor (as defined herein) of Employer or the Company, or any of\ntheir respective parents, subsidiaries or affiliates. For purposes of this Agreement, a “Competitor” is any person or entity engaged in the\ndesign, development, manufacture and world wide sale of automated and manual in vitro diagnostic products for drug testing, cardiovascular\ndiseases, cerebrovascular diseases and thromboebolic diseases (the “Biosite Business”); or\n(ii) perform any services, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or\nother entity, whether as an employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent\nEmployee or such other business, individual, partner, firm, corporation or other entity is then a Competitor of Employer or the Company, or\nany of their respective subsidiaries or affiliates, with respect to the Biosite Business.\nEmployee and Employer acknowledge and agree that the business of Employer is global in nature, and that the terms set forth herein shall\napply on a worldwide basis.\nEmployee acknowledges that during the period of his employment with Employer, the Company and their respective parents, subsidiaries and\naffiliates, he will owe a duty of loyalty to his employer, and, consequently, understands and agrees that he will not perform any services, with or\nwithout pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as an employee, consultant,\nowner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other business, individual, partner, firm,\ncorporation or other entity is then a Competitor of Employer or the Company, or any of their respective parents, subsidiaries or affiliates, with\nrespect to any business then engaged in by the Employer, the Company or any of their respective parents, subsidiaries or affiliates.\nNotwithstanding the foregoing, the “beneficial ownership” by Employee, either individually or as a member of a “group,” as such terms are\nused in Regulation 13D of the General Rules and Regulations under the Securities Exchange Act of 1934, as\n5\namended (the “Exchange Act”), of not more than five percent (5%) of the voting stock of any publicly held corporation shall not constitute a\nviolation of this Agreement.\nIn addition, notwithstanding the foregoing, continued service by Employee during the Restricted Period as a member of the board of directors\nand/or as a scientific, clinical, technical or strategic advisor to any business, firm, corporation or other entity for which Employee is providing such\nservices as of the date of this Agreement shall not constitute a violation of this Section 2(b).\n(c) Non-Solicitation of Customers and Suppliers. During the Restricted Period, Employee shall not, directly or indirectly, use any\nConfidential Information to influence or attempt to influence customers or suppliers of Employer or the Company, or any of their respective\nsubsidiaries or affiliates, with whom he had contact during his employment with Employer, the Company or any of their respective affiliates, to\ndivert their business to any Competitor. During the Restricted Period, Employee shall not directly or indirectly, use influence or attempt to influence\ncustomers or suppliers of Employer or the Company, or any of their respective subsidiaries or affiliates, with whom he had contact during his\nemployment with Employer, the Company or any of their respective affiliates, to divert their business to any Competitor with respect to the Biosite\nBusiness.\n(d) Non-Solicitation of Employees. Employee recognizes that he possesses and will possess confidential information about other\nemployees of Employer and the Company, and their respective parents, subsidiaries and affiliates, relating to their education, experience, skills,\nabilities, compensation and benefits, and inter-personal relationships with customers of Employer, the Company, and any of their respective parents,\nsubsidiaries and affiliates. Employee recognizes that the information he possesses and will possess about these other employees is not generally\nknown, is of substantial value to Employer and the Company, and their respective subsidiaries or affiliates in developing their business and in\nsecuring and retaining customers, and has been and will be acquired by him because of his business position with Employer, its subsidiaries and\naffiliates. Employee agrees that, during the Restricted Period, he will not, directly or indirectly, use Confidential Information of Employer or the\nCompany, or any of their respective subsidiaries or affiliates to solicit, directly or indirectly, any person who is then an employee of Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates to terminate or limit their employment relationship with Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates, or to accept employment with any other person or entity. The foregoing shall\nnot be violated by general advertising not targeted at Employer employees or by Employee’s responding in any lawful manner to any person that\ninitiates contact with Employee during the Restricted Period.\n(e) Injunctive Relief. It is expressly agreed that Employer and/or the Company will or would suffer irreparable injury if Employee were\nto breach any of the provisions of this Section 2 and that Employer and/or the Company would by reason of any such breach be entitled to injunctive\nrelief in a court of appropriate jurisdiction without the need to post a bond or other security and without the need to demonstrate\n6\nspecial damages. The aforementioned injunctive relief is and shall be in addition to any other remedies that may be available to Employer or the\nCompany, or any of their respective subsidiaries or affiliates under this Agreement or otherwise.\n(f) Survival of Provisions. The obligations contained in this Section 2 shall survive the termination or expiration of Employee’s\nemployment with Employer, the Company or any of their respective parents, subsidiaries or affiliates, and shall be fully enforceable thereafter in the\ncase of the obligations contained in Section 2(a) and through the end of the Restricted Period in all other cases. If it is determined by a court of\ncompetent jurisdiction in any state that any restriction in this Section 2 is excessive in duration or scope or is unreasonable or unenforceable under\nthe laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the\nmaximum extent permitted by the law of that state.\n(g) No Additional Obligations of Employee Excused. All of the provisions of this Section 2 are in addition to any other written\nagreements on the subjects covered herein that Employee may have with Employer and/or any of its subsidiaries or affiliates, and are not meant to\nand do not excuse any additional obligations that Employee may have under such agreements.\n(h) Tolling for Periods of Breach. The Restricted Period shall be extended for a period equal to any period during which Employee is in\nmaterial breach of this Section 2 with respect to the portion of this Section 2 as to which Employee is in breach, provided that within a reasonable\nperiod of time after becoming aware of the breach, the Company and/or Employer notifies Employee that it believes Employee is in breach of this\nSection 2.\n(i) Third-Party Beneficiaries. Employer’s parents, subsidiaries and affiliates, and the Company, and its parents, subsidiaries and affiliates\nshall be third-party beneficiaries of this Section 2 of this Agreement, and shall be entitled to enforce its provisions against Employee.\n(j) Termination of Obligations. Notwithstanding anything to the contrary set forth herein, Employee’s obligations under Sections 2(b),\n2(c) and 2(d) shall immediately terminate and be of no further force or effect if the Employer or Company fails to make the payments or provide\nbenefits to Employee required under the Agreement or Employer’s Change in Control Severance Benefit Plan, and fails to cure within thirty\n(30) days following receipt of written notice from Employee of its failure to pay.\n3. Cooperation in Third-Party Disputes. Employee shall reasonably cooperate with Employer or the Company, or any of their respective\nsubsidiaries or affiliates and each of their respective attorneys or other legal representatives (collectively referred to as “Attorneys”) in connection\nwith any claim, litigation, or judicial or arbitral proceeding which is now pending or may hereinafter be brought against Employer or the Company,\nor any of their respective subsidiaries or affiliates by any third party related to\n7\nthe period of Employee’s employment with Employer. Employee’s duty of cooperation shall include, but shall not be limited to, (a) meeting with\nAttorneys by telephone or in person at mutually convenient times and places in order to state truthfully Employee’s knowledge of the matters at issue\nand recollection of events; (b) appearing at Attorneys’ request (and, to the extent reasonably possible, at a time convenient to Employee that does not\nconflict with the needs or requirements of Employee’s then current employer) as a witness at depositions, trials or other proceedings, without the\nnecessity of a subpoena, in order to state truthfully Employee’s knowledge of the matters at issue; and (c) signing at Attorneys’ request declarations\nor affidavits that truthfully state the matters of which Employee has knowledge. Employer shall promptly reimburse Employee for Employee’s actual\nand reasonable travel and other out-of-pocket expenses that Employee may incur in cooperating with Attorneys pursuant to this Section 3. In\naddition, to the extent that, after the termination of Employee’s employment for any reason, Employee provides cooperation pursuant to this\nSection 3, Employer shall, upon Employee request, compensate Employee at a reasonable rate for the time actually spent by Employee at\nEmployer’s request rendering such cooperation. The provisions of this Section 3 are in addition to any other written agreements on this subject that\nEmployee may have with Employer or the Company, or any of their respective subsidiaries or affiliates and are not meant to and do not excuse any\nadditional obligations that Employee may have under such agreements.\n4. Effect on Change in Control Severance Benefit Plan. Employee hereby agrees that the execution of this Agreement and the application of\nthe terms hereof shall not in any event constitute “Good Reason” as such term is defined in the Biosite Incorporated Change in Control Severance\nBenefit Plan effective October 22, 2004 (the “Biosite Severance Plan”) prior to the Effective Time. Employee hereby waives any claims to the\ncontrary. However, any such waiver is null and void after the Effective Time.\n5. Additional Consideration in Support of this Agreement. In consideration of Employee entering into this Agreement, Employee shall be\nentitled to the following benefits:\n(a) At the Effective Time, Employer shall cause the Employee to receive, with respect to each Employee Option, in consideration for the\ncancellation thereof, an amount in cash, without interest, equal to the product of (x) the total number of shares of Common Stock subject to the\nEmployee Option multiplied by (y) the excess, if any, of the Merger Consideration (as defined in the Merger Agreement) over the per share exercise\nprice of such Employee Option, less applicable taxes required to be withheld with respect to any such payment (the “Option Consideration”). In the\nevent that the exercise price of any Employee Option is equal to or greater than the Merger Consideration, such Employee Option shall be cancelled\nand have no further force or effect. The Option Consideration paid with respect to the Employee Options in accordance with the terms hereof shall\nbe deemed to have been paid in full satisfaction of all rights and privileges pertaining to the Employee Options and, on and after the Effective Time,\nEmployee shall have no further rights with respect to any Employee Option, other than the right to receive the Option Consideration as provided\nherein.\n8\nEmployee acknowledges that this Section 5(a) is in lieu of any benefits to which the Employee may be entitled under (i) Section 4(a)(1)(iii) of the\nBiosite Severance Plan and (ii) Section 5.9(a) of the Merger Agreement.\n(b) Employer shall pay Employee an amount equal to two times the Employee’s current rate of base salary ($459,251) (the “Current Base\nSalary”), which amount shall be payable in two equal installments. The first installment shall be paid at the Effective Time. The second installment\nshall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the termination of the Employee’s employment by\nthe Employer or the Company for any reason or no reason, or by the Employee for Good Cause (as defined herein) (the “Transition Period”). For\npurposes of this Agreement only, “Good Cause” means a requirement by the Employer or the Company that the Employee either relocate his\nprincipal place of work prior to the Effective Time or during the Transition Period, or work on more than a full-time basis, or perform work that is\nother than work that is essential and related to assisting with the reasonable transition of control of Employer. Employee acknowledges that this\nSection 5(b) is in lieu of any benefits to which the Employee may be entitled under Section 4(a)(1)(i) of the Biosite Severance Plan.\n(c) Employer shall pay the Employee an amount equal to two times the Employee’s Negotiated Bonus (as defined below) that is, a sum\nequal to the Employee’s Current Annual Base Salary, which amount shall be payable in two equal installments. The first installment shall be paid at\nthe Effective Time. The second installment shall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the\ntermination of the Employee’s employment by the Employer or the Company for any reason or no reason or by the Employee for Good Cause (as\ndefined in Section 5(b)). The Employee’s “Negotiated Bonus” is an amount equal to 50% of the Employee’s Current Base Salary.\n(d) Employee acknowledges that this Section 5 is in lieu of any benefits to which Employee may be entitled under (i) Section 4(a)(1)(i)\nof the Biosite Severance Plan, (ii) Section 4 (a)(1)(iii) of the Biosite Severance Plan, and (iii) Section 5.9(a) of the Merger Agreement. Section 4(a)\n(1)(ii) of the Biosite Severance Plan remains in full force and effect.\n6. Anything in this Agreement to the contrary notwithstanding, if at the time of Employee’s separation from service within the meaning of\nSection 409A of the Internal Revenue Code of 1986, as amended (the “Code”), the Employee is considered a “specified employee” within the\nmeaning of Section 409A(a)(2)(B)(i) of the Code, and if any payment or benefit that the Employee becomes entitled to under this Agreement or\nunder the Biosite Severance Plan is considered deferred compensation subject to interest, penalties and additional tax imposed pursuant to\nSection 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, then no such payment shall be payable or benefit\nshall be provided prior to the date that is the earliest of (i) six months and one day after the Employee’s date of termination, (ii) the Employee’s\ndeath, or (iii) such other date as will cause such payment not to be subject to such interest, penalties and additional tax, and the initial payment or\nprovision of benefit shall include a catch-up\n9\namount covering amounts that would otherwise have been paid during the first six-month period but for the application of this Section 6. The parties\nintend that this Agreement will be administered in accordance with Section 409A of the Code. The parties agree that this Agreement may be\namended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and\nregulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.\n7. Notices. All notices, demands, requests, consents, statements, satisfactions, waivers, designations, refusals, confirmations, denials and other\ncommunications that may be required or otherwise provided for or contemplated hereunder shall be in writing and shall be deemed to be properly\ngiven and received (a) upon delivery, if delivered in person or by e-mail or facsimile transmission with receipt acknowledged, (b) one business day\nafter having been deposited for overnight delivery with Federal Express or another comparable overnight courier service, or (c) three (3) business\ndays after having been deposited in any post office or mail depository regularly maintained by the U.S . Postal Service and sent by registered or\ncertified mail, postage prepaid, addressed to his residence address (or such other address as Employee may specify in a written notice to Employer)\nin the case of Employee, or to its principal office in the case of Employer.\n8. Benefits/Assignment. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective\nsuccessors and assigns, heirs and legal representatives. Employee may not assign any of his obligations under this agreement to any other person or\nentity without the prior written consent of Employer and the Company.\n9. Entire Agreement. This Agreement and the Merger Agreement contain the entire agreement of the parties, and supersedes all prior\nagreements, understandings and negotiations, whether written or oral, with respect to the subject matter hereof; provided, however, that the parties\nhereto acknowledge that this Agreement supersedes only certain provisions of the Biosite Severance Plan with respect to Employee and that, except\nas amended hereby, the Biosite Severance Plan remains in full force and effect in accordance with the terms thereof. However, for the avoidance of\ndoubt, none of the limitations related to the entitlement to benefits or the amount of benefits set out in Section 4 or Section 5 of the Biosite Severance\nPlan shall apply to amounts due under this Agreement. This Agreement may not be changed orally but only by an agreement in writing signed by the\nparty against whom enforcement of any waiver, change, modification, extension, or discharge is sought.\n10. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be\nineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, but shall be enforced to the\nmaximum extent permitted by law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such\nprovision in any other jurisdiction.\n10\n11. Arbitration. To the fullest extent allowed by law, any controversy, claim or dispute between Employee and Employer (and/or any of its\nowners, directors, officers, employees, affiliates, subsidiaries or agents) relating to or arising out of Employee’s employment or the cessation of that\nemployment will be submitted to JAMS for final and binding arbitration, to be held in Orange County, California, for determination in accordance\nwith the then current JAMS rules for the resolution of employment disputes, as the exclusive remedy for such controversy, claim or dispute. In any\nsuch arbitration, the parties may conduct discovery in accordance with the applicable rules of the arbitration forum, except that the arbitrator shall\nhave the authority to order and permit discovery as the arbitrator may deem necessary and appropriate in accordance with applicable state or federal\ndiscovery statutes. The arbitrator shall issue a reasoned, written decision, and shall have full authority to award all remedies which would be\navailable in court. The arbitrator will also have the power to direct that the party that substantially prevails in such arbitration proceeding be paid his\nor its reasonable attorneys’ fees by the other party or parties, to the extent the arbitrator deems appropriate. The parties shall share the filing fees\nrequired for the arbitration. Employer shall pay the arbitrator’s fees and any JAMS administrative expenses. The award of the arbitrator shall be final\nand binding upon the parties and may be entered as a judgment in any court of competent jurisdiction. Notwithstanding anything to the contrary\ncontained herein, Employer and Employee shall have their respective rights to seek and obtain injunctive relief through any court of competent\njurisdiction with respect to any controversy, claim or dispute to the extent permitted by law if such relief is not available, or not available in a timely\nmanner, through arbitration. Claims where mandatory arbitration is prohibited by law are not covered by this arbitration agreement, and such claims\nmay be presented by either Employee or Employer to the appropriate court or government agency. BY AGREEING TO THIS BINDING\nARBITRATION PROVISION, BOTH EMPLOYEE AND EMPLOYER GIVE UP ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO\nANY CLAIM SUBJECT TO ARBITRATION. This arbitration agreement is to be construed as broadly as is permissible under applicable law.\n12. Choice of Law. This Agreement shall be interpreted in accordance with the laws of the State of California without regard to the rules of\nconflict of laws.\n13. Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all\nof which together shall constitute one and the same instrument. Each counterpart may consist of a number of copies hereof each signed by less than\nall, but together signed by all of the parties hereto. Facsimile transmission of any signed original counterpart and/or retransmission of any signed\nfacsimile transmission shall be deemed the same as the delivery of an original.\n14. Effectiveness of Agreement. Notwithstanding anything to the contrary set forth herein, this Agreement shall be contingent and effective\nupon the occurrence of the Effective Time, and if the Effective Time does not occur, including as a result of the termination of the Merger\nAgreement in accordance with its terms, this Agreement shall have no effect, and shall be null and void.\n[signature page follows]\n11\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.\nINVERNESS MEDICAL INNOVATIONS, INC.\nA Delaware corporation\nBy: /s/ Ron Zwanziger\nName: Ron Zwanziger\nTitle: CEO\nBIOSITE INCORPORATED\nA Delaware corporation\nBy: /s/ Chris Twomey\nName: Chris Twomey\nTitle: Senior VP Finance, CFO\nKENNETH BUECHLER\n/s/ Kenneth Buechler\nSignature Page to Non-Competition, Non-Disclosure\nand Intellectual Property Assignment Agreement\n12\nSCHEDULE A\nCALIFORNIA LABOR CODE SECTION 2870\nINVENTION ON OWN TIME-EXEMPTION FROM AGREEMENT\n“(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably\nanticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being\nrequired to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”\n13
+435a0f577af080017a53be085d366971.pdf	effective_date jurisdiction party term	EX-10 .17 2 nke-5312018xexhibit1017.htm EXHIBIT 10.17\nEXHIBIT 10.17\nEmployee ID: _________________\nStart Date: ___________________\nHiring Manager: _______________\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\n________________\n(“EMPLOYEE”)\nand\nNIKE, Inc., and its parent, divisions, subsidiaries, affiliates, successors and assigns (“NIKE”):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon EMPLOYEE's bona fide\nadvancement with NIKE and is a condition of such advancement. Employee acknowledges that he/she was\ninformed in a written job offer at least two weeks before starting work in his/her new position that this\nCovenant Not to Compete and Non-Disclosure Agreement is required and is a condition of advancement.\nB. Over the course of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or\nis in a position to develop confidential information peculiar to NIKE's business and not generally known to\nthe public as defined below ("Protected Information"). It is anticipated that EMPLOYEE will continue to be\nexposed to Protected Information of greater sensitivity as EMPLOYEE advances in the company, and this\nAgreement will remain in effect in the event EMPLOYEE advances and until EMPLOYEE leaves the\ncompany or it is superseded by a new written agreement executed by the parties.\nC. The nature of NIKE's business is highly competitive, and disclosure of any Protected Information would\nresult in severe damage to NIKE and be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected information of NIKE can be\nused to NIKE’s detriment anywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete\n(a) Competition Restriction. During EMPLOYEE’s employment at NIKE, under the terms of any employment\ncontract or otherwise, and for one (1) year thereafter (the "Restriction Period"), EMPLOYEE will not directly\nor indirectly own, manage, control or participate in the ownership, management or control of, or be employed\nby, consult for or be connected in any manner\nwith, any business engaged anywhere in the world in the athletic footwear, athletic apparel or sports\nequipment, sports electronics/technology and sports accessories business, or any other business that\ndirectly competes with NIKE or any of its parent, subsidiaries or affiliated corporations (a "Competitor"). This\nprovision is subject to NIKE's option to waive all or any portion of the Restriction Period as more specifically\nprovided below.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period\nshall automatically toll from the date of the first breach, and all subsequent breaches, until the resolution of\nthe breach through private settlement, judicial or other action, including all appeals. The Restriction Period\nshall continue upon the effective date of any such settlement, judicial or other resolution. NIKE shall not be\nobligated to pay EMPLOYEE the additional compensation described in paragraph 1.1 below during any\nperiod of time in which this Agreement is tolled due to EMPLOYEE's breach. In the event EMPLOYEE\nreceives such additional compensation after any such breach, EMPLOYEE must immediately reimburse\nNIKE in the amount of all such compensation upon the receipt of a written request by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the\nRestriction Period or to limit the definition of Competitor by giving EMPLOYEE seven (7) days' prior notice of\nsuch election. In the event all or a portion of the Restriction Period is waived or the definition of Competitor is\nlimited, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to\ncompete has been waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above,\nshould NIKE terminate EMPLOYEE's employment without cause and elect to enforce the non-competition\nagreement, while the Restriction Period is in effect, NIKE shall pay EMPLOYEE a monthly payment equal to\none hundred percent (100%) of EMPLOYEE's last monthly base salary. Except where prohibited by law, if\nNIKE terminates EMPLOYEE for "cause," no additional consideration will be owed to EMPLOYEE under this\nAgreement, and the covenant not to compete will remain enforceable. For purposes of this Agreement only,\n"cause" shall mean (i) insubordination, (ii) acts of dishonesty, (iii) involvement in illegal activities where such\ninvolvement in illegal activities violates NIKE policies, places NIKE at risk or has or could damage NIKE's\nreputation in the community or any of its related or subsidiary companies, (iv) violation of NIKE's anti-\nharassment or anti-discrimination policy or (v) gross neglect of EMPLOYEE'S duties or willful misconduct\nthat, in either case, results in economic harm to NIKE or harm to NIKE's reputation. Nothing in this\nparagraph or Agreement alters the employment-at-will relationship between NIKE and EMPLOYEE.\nIf EMPLOYEE voluntarily terminates employment and NIKE elects to enforce the non-competition\nagreement, while the Restriction Period is in effect, NIKE shall pay EMPLOYEE a monthly payment equal to\nthe greater of fifty percent (50%) of EMPLOYEE's last monthly base salary or the equivalent of one-twelfth\n(1/12) of fifty percent of the median family income for a four-person family in the state where EMPLOYEE\nresides, as determined by the U.S . Census Bureau for the most recent year available at the time of\nEMPLOYEE's termination. The first payment to EMPLOYEE of additional consideration shall follow on the\nlast business day of the month after NIKE's election to enforce the non-competition agreement. Subsequent\npayments during the Restriction Period shall be payable monthly on the last business day of the month in\naccordance with NIKE's payroll practices.\n(e) Withholding and Offset. NIKE reserves the right to withhold from Additional Consideration payable to\nEMPLOYEE all federal, state and local taxes as shall be required, as well as any other amounts authorized\nor required by NIKE policy. NIKE reserves the right, exercisable in its sole discretion, to reduce the amount\nof Additional Consideration by amounts that EMPLOYEE owes NIKE, including but not limited to any\npayments due to NIKE in accordance\nwith the NIKE Tax Equalization Policy if EMPLOYEE is employed as a transferee during his or her\nemployment with NIKE. Employee agrees that notwithstanding the amount of any withholding and/or offset,\neven in an amount that reduces payments of Additional Consideration to zero dollars ($0.00), the covenant\nnot to compete will remain enforceable. To the extent withholding or offset does not extinguish amounts that\nEMPLOYEE owes to NIKE, EMPLOYEE remains obligated for the balance of the amounts owed.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name\nof EMPLOYEE's new employer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any\nsubsequent employer during the Restriction Period, wherever located and regardless of whether such employer\nis a competitor of NIKE.\n3. Non-Disclosure Agreement\n(a) Protected Information Defined. "Protected Information" shall mean all proprietary information, in whatever\nform and format, of NIKE and all information provided to NIKE by third parties that NIKE is obligated to keep\nconfidential. EMPLOYEE agrees that any and all information to which EMPLOYEE has access concerning\nNIKE projects and internal NIKE information is Protected Information, whether in verbal form, machine-\nreadable form, written or other tangible form, and whether designated as confidential or unmarked. Without\nlimiting the foregoing, Protected Information includes trade secrets and competitively sensitive business or\nprofessional information (regardless of whether such information constitutes a trade secret) relating to\nNIKE's research and development activities, its intellectual property and the filing or pendency of patent\napplications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and\nvendor lists, contract factory lists, pricing information, manufacturing plans, business and marketing plans or\nstrategy, product development plans, product launch plans, financial information, sales information, methods\nof operation, manufacturing processes and methods, products and personnel information.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information\nthat is or becomes part of the public domain through no act or failure to act on the part of EMPLOYEE.\nSpecifically, EMPLOYEE shall be permitted to retain as part of his or her personal portfolio copies of\nEMPLOYEE's original artwork and designs, provided EMPLOYEE presents those personal portfolio copies\nto his or her supervisor for review and approval and provided the artwork or designs have become part of the\npublic domain. In any dispute between the parties with respect to this exclusion, the burden of proof will be\non EMPLOYEE, and such proof will be by clear and convincing evidence.\n(c) Employee's Obligations. During the period of employment by NIKE and for a period of two (2) years\nthereafter, EMPLOYEE will hold in confidence and protect all Protected Information and will not, at any time,\ndirectly or indirectly, use any Protected Information for any purpose outside the scope of EMPLOYEE's\nemployment with NIKE or disclose any Protected Information to any third person or organization without the\nprior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE will not ever copy,\ntransmit, reproduce, summarize, quote, publish or make any commercial or other use whatsoever of any\nProtected Information without the prior written consent of NIKE. EMPLOYEE will also take reasonable\nsecurity precautions and such other actions as may be necessary to ensure that there is no use or\ndisclosure, intentional or inadvertent, of Protected Information in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at any time, and in any event, upon termination of\nemployment, EMPLOYEE shall immediately return to NIKE all Protected\nInformation in whatever form, including tapes, notebooks, drawings, digital files or other media containing\nProtected Information, and all copies thereof, then in EMPLOYEE's possession or under EMPLOYEE's control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE\nimmediately if EMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected\nInformation by any person employed or not employed by NIKE at the time of such possession, use or\nknowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such incident and will cooperate\nwith NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information.\nNIKE shall provide reasonable reimbursement to EMPLOYEE for each hour so engaged, and that amount shall\nnot be diminished by operation of any payment under paragraph 1(d) of this Agreement.\n6. Non-Solicitation/Non-Recruitment. During the term of this Agreement and for a period of one (1) year\nthereafter, EMPLOYEE will not directly or indirectly solicit, divert or hire away (or attempt to solicit, divert or hire\naway) to or for himself or any other company or business organization any NIKE employee, whether or not such\nemployee is a full-time employee or temporary employee and whether or not such employment is pursuant to a\nwritten agreement or is at will or any independent contractor working for NIKE.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement,\nNIKE shall be entitled to an accounting and repayment of all profits, compensation, commissions, remuneration\nor benefits that EMPLOYEE directly or indirectly has realized and/or may realize as a result of or in connection\nwith any such violation (including the return of any additional consideration paid by NIKE pursuant to paragraph\n1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or\nremedies to which NIKE may be entitled at law or in equity.\n8. General Provisions.\n(a) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE's employment,\nregardless of the reason for termination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will\nbe effective unless executed in writing by both parties. No written waiver will excuse the performance of any\nact other than the act or acts specifically referred to therein.\n(c) Severability. Each provision herein will be treated as a separate and independent clause, and\nunenforceability of any one clause will in no way impact the enforceability of any other clause. Should any of\nthe provisions in this Agreement be found to be unreasonable or invalid by a court of competent jurisdiction,\nsuch provision will be enforceable to the maximum extent enforceable by the law of that jurisdiction.\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE's employment hereunder, shall be\nconstrued according to the laws of the state of Oregon. EMPLOYEE further hereby submits to the jurisdiction\nof, and agrees that exclusive jurisdiction over and venue for, any action or proceeding arising out of or\nrelating to this Agreement shall lie in the state and federal courts located in Oregon.\nNIKE, Inc.\n__________________________\n_____________________________\nSignature\nSignature\n___________________________\n_____________________________\nName\nName\n_________________\n_____________________________\nDate\nTitle\n_____________________________\nDate	EX-10.17 2 nke-5312018xexhibit1017.htm EXHIBIT 10.17\nEXHIBIT 10.17\nEmployee ID:\nStart Date:\nHiring Manager:\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\n(“EMPLOYEE”)\nand\nNIKE, Inc., and its parent, divisions, subsidiaries, affiliates, successors and assigns (“NIKE"):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon EMPLOYEE's bona fide\nadvancement with NIKE and is a condition of such advancement. Employee acknowledges that he/she was\ninformed in a written job offer at least two weeks before starting work in his/her new position that this\nCovenant Not to Compete and Non-Disclosure Agreement is required and is a condition of advancement.\nB. Over the course of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or\nis in a position to develop confidential information peculiar to NIKE's business and not generally known to\nthe public as defined below ("Protected Information"). It is anticipated that EMPLOYEE will continue to be\nexposed to Protected Information of greater sensitivity as EMPLOYEE advances in the company, and this\nAgreement will remain in effect in the event EMPLOYEE advances and untii EMPLOYEE leaves the\ncompany or it is superseded by a new written agreement executed by the parties.\nC. The nature of NIKE's business is highly competitive, and disclosure of any Protected Information would\nresult in severe damage to NIKE and be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected information of NIKE can be\nused to NIKE'’s detriment anywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete\n(@) Competition Restriction. During EMPLOYEE's employment at NIKE, under the terms of any employment\ncontract or otherwise, and for one (1) year thereafter (the "Restriction Period"), EMPLOYEE will not directly\nor indirectly own, manage, control or participate in the ownership, management or control of, or be employed\nby, consult for or be connected in any manner\n(b)\n()\n(d)\n(e)\nwith, any business engaged anywhere in the world in the athletic footwear, athletic apparel or sports\nequipment, sports electronics/technology and sports accessories business, or any other business that\ndirectly competes with NIKE or any of its parent, subsidiaries or affiliated corporations (a "Competitor"). This\nprovision is subject to NIKE's option to waive all or any portion of the Restriction Period as more specifically\nprovided below.\nExtension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period\nshall automatically toll from the date of the first breach, and all subsequent breaches, until the resolution of\nthe breach through private settlement, judicial or other action, including all appeals. The Restriction Period\nshall continue upon the effective date of any such settlement, judicial or other resolution. NIKE shall not be\nobligated to pay EMPLOYEE the additional compensation described in paragraph 1.1 below during any\nperiod of time in which this Agreement is tolled due to EMPLOYEE's breach. In the event EMPLOYEE\nreceives such additional compensation after any such breach, EMPLOYEE must immediately reimburse\nNIKE in the amount of all such compensation upon the receipt of a written request by NIKE.\nWaiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the\nRestriction Period or to limit the definition of Competitor by giving EMPLOYEE seven (7) days' prior notice of\nsuch election. In the event all or a portion of the Restriction Period is waived or the definition of Competitor is\nlimited, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to\ncompete has been waived.\nAdditional Consideration. As additional consideration for the covenant not to compete described above,\nshould NIKE terminate EMPLOYEE's employment without cause and elect to enforce the non-competition\nagreement, while the Restriction Period is in effect, NIKE shall pay EMPLOYEE a monthly payment equal to\none hundred percent (100%) of EMPLOYEE's last monthly base salary. Except where prohibited by law, if\nNIKE terminates EMPLOYEE for "cause," no additional consideration will be owed to EMPLOYEE under this\nAgreement, and the covenant not to compete will remain enforceable. For purposes of this Agreement only,\n"cause" shall mean (i) insubordination, (ii) acts of dishonesty, (iii) involvement in illegal activities where such\ninvolvement in illegal activities violates NIKE policies, places NIKE at risk or has or could damage NIKE's\nreputation in the community or any of its related or subsidiary companies, (iv) violation of NIKE's anti-\nharassment or anti-discrimination policy or (v) gross neglect of EMPLOYEE'S duties or willful misconduct\nthat, in either case, results in economic harm to NIKE or harm to NIKE's reputation. Nothing in this\nparagraph or Agreement alters the employment-at-will relationship between NIKE and EMPLOYEE.\nIf EMPLOYEE voluntarily terminates employment and NIKE elects to enforce the non-competition\nagreement, while the Restriction Period is in effect, NIKE shall pay EMPLOYEE a monthly payment equal to\nthe greater of fifty percent (50%) of EMPLOYEE's last monthly base salary or the equivalent of one-twelfth\n(1/12) of fifty percent of the median family income for a four-person family in the state where EMPLOYEE\nresides, as determined by the U.S. Census Bureau for the most recent year available at the time of\nEMPLOYEE's termination. The first payment to EMPLOYEE of additional consideration shall follow on the\nlast business day of the month after NIKE's election to enforce the non-competition agreement. Subsequent\npayments during the Restriction Period shall be payable monthly on the last business day of the month in\naccordance with NIKE's payroll practices.\nWithholding and Offset. NIKE reserves the right to withhold from Additional Consideration payable to\nEMPLOYEE all federal, state and local taxes as shall be required, as well as any other amounts authorized\nor required by NIKE policy. NIKE reserves the right, exercisable in its sole discretion, to reduce the amount\nof Additional Consideration by amounts that EMPLOYEE owes NIKE, including but not limited to any\npayments due to NIKE in accordance\nwith the NIKE Tax Equalization Policy if EMPLOYEE is employed as a transferee during his or her\nemployment with NIKE. Employee agrees that notwithstanding the amount of any withholding and/or offset,\neven in an amount that reduces payments of Additional Consideration to zero dollars ($0.00), the covenant\nnot to compete will remain enforceable. To the extent withholding or offset does not extinguish amounts that\nEMPLOYEE owes to NIKE, EMPLOYEE remains obligated for the balance of the amounts owed.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name\nof EMPLOYEE's new employer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any\nsubsequent employer during the Restriction Period, wherever located and regardless of whether such employer\nis a competitor of NIKE.\n3. Non-Disclosure Agreement\n(@) Protected Information Defined. "Protected Information” shall mean all proprietary information, in whatever\nform and format, of NIKE and all information provided to NIKE by third parties that NIKE is obligated to keep\nconfidential. EMPLOYEE agrees that any and all information to which EMPLOYEE has access concerning\nNIKE projects and internal NIKE information is Protected Information, whether in verbal form, machine-\nreadable form, written or other tangible form, and whether designated as confidential or unmarked. Without\nlimiting the foregoing, Protected Information includes trade secrets and competitively sensitive business or\nprofessional information (regardless of whether such information constitutes a trade secret) relating to\nNIKE's research and development activities, its intellectual property and the filing or pendency of patent\napplications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and\nvendor lists, contract factory lists, pricing information, manufacturing plans, business and marketing plans or\nstrategy, product development plans, product launch plans, financial information, sales information, methods\nof operation, manufacturing processes and methods, products and personnel information.\n(b)  Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information\nthat is or becomes part of the public domain through no act or failure to act on the part of EMPLOYEE.\nSpecifically, EMPLOYEE shall be permitted to retain as part of his or her personal portfolio copies of\nEMPLOYEE's original artwork and designs, provided EMPLOYEE presents those personal portfolio copies\nto his or her supervisor for review and approval and provided the artwork or designs have become part of the\npublic domain. In any dispute between the parties with respect to this exclusion, the burden of proof will be\non EMPLOYEE, and such proof will be by clear and convincing evidence.\n(c) Employee's Obligations. During the period of employment by NIKE and for a period of two (2) years\nthereafter, EMPLOYEE will hold in confidence and protect all Protected Information and will not, at any time,\ndirectly or indirectly, use any Protected Information for any purpose outside the scope of EMPLOYEE's\nemployment with NIKE or disclose any Protected Information to any third person or organization without the\nprior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE will not ever copy,\ntransmit, reproduce, summarize, quote, publish or make any commercial or other use whatsoever of any\nProtected Information without the prior written consent of NIKE. EMPLOYEE will also take reasonable\nsecurity precautions and such other actions as may be necessary to ensure that there is no use or\ndisclosure, intentional or inadvertent, of Protected Information in violation of this Agreement.\n4, Return of Protected Information. At the request of NIKE at any time, and in any event, upon termination of\nemployment, EMPLOYEE shall immediately return to NIKE all Protected\nInformation in whatever form, including tapes, notebooks, drawings, digital files or other media containing\nProtected Information, and all copies thereof, then in EMPLOYEE's possession or under EMPLOYEE's control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE\nimmediately if EMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected\nInformation by any person employed or not employed by NIKE at the time of such possession, use or\nknowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such incident and will cooperate\nwith NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information.\nNIKE shall provide reasonable reimbursement to EMPLOYEE for each hour so engaged, and that amount shall\nnot be diminished by operation of any payment under paragraph 1(d) of this Agreement.\n6. Non-Solicitation/Non-Recruitment. During the term of this Agreement and for a period of one (1) year\nthereafter, EMPLOYEE will not directly or indirectly solicit, divert or hire away (or attempt to solicit, divert or hire\naway) to or for himself or any other company or business organization any NIKE employee, whether or not such\nemployee is a full-time employee or temporary employee and whether or not such employment is pursuant to a\nwritten agreement or is at will or any independent contractor working for NIKE.\n7. Accounting_ of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement,\nNIKE shall be entitled to an accounting and repayment of all profits, compensation, commissions, remuneration\nor benefits that EMPLOYEE directly or indirectly has realized and/or may realize as a result of or in connection\nwith any such violation (including the return of any additional consideration paid by NIKE pursuant to paragraph\n1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or\nremedies to which NIKE may be entitled at law or in equity.\n8. General Provisions.\n(@) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE's employment,\nregardless of the reason for termination.\n(b)  Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will\nbe effective unless executed in writing by both parties. No written waiver will excuse the performance of any\nact other than the act or acts specifically referred to therein.\n(c) Severability. Each provision herein will be treated as a separate and independent clause, and\nunenforceability of any one clause will in no way impact the enforceability of any other clause. Should any of\nthe provisions in this Agreement be found to be unreasonable or invalid by a court of competent jurisdiction,\nsuch provision will be enforceable to the maximum extent enforceable by the law of that jurisdiction.\n(d)  Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE's employment hereunder, shall be\nconstrued according to the laws of the state of Oregon. EMPLOYEE further hereby submits to the jurisdiction\nof, and agrees that exclusive jurisdiction over and venue for, any action or proceeding arising out of or\nrelating to this Agreement shall lie in the state and federal courts located in Oregon.\nNIKE, Inc.\n \n \nSignature Signature\n \n \nName Name\n \nDate Title\n \nDate	EX-10.17 2 nke-5312018xexhibit1017.htm EXHIBIT 10.17\nEXHIBIT 10.17\nEmployee ID:\nStart Date:\nHiring Manager:\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\n("EMPLOYEE")\nand\nNIKE, Inc., and its parent, divisions, subsidiaries, affiliates, successors and assigns ("NIKE"):\nRECITALS:\nA.\nThis Covenant Not to Compete and Non-Disclosure Agreement is executed upon EMPLOYEE's bona fide\nadvancement\nwith\nNIKE\nand\nis\na\ncondition\nof\nsuch\nadvancement.\nEmployee\nacknowledges\nthat\nhe/she\nwas\ninformed in a written job offer at least two weeks before starting work in his/her new position that this\nCovenant Not to Compete and Non-Disclosure Agreement is required and is a condition of advancement.\nB.\nOver the course of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or\nis in a position to develop confidential information peculiar to NIKE's business and not generally known\nto\nthe public as defined below ("Protected Information"). It is anticipated that EMPLOYEE will continue to be\nexposed to Protected Information of greater sensitivity as EMPLOYEE advances in the company, and this\nAgreement will remain in effect in the event EMPLOYEE advances and until EMPLOYEE leaves the\ncompany or it is superseded by a new written agreement executed by the parties.\nC.\nThe nature of NIKE's business is highly competitive, and disclosure of any Protected Information would\nresult in severe damage to NIKE and be difficult to measure.\nD.\nNIKE makes use of its Protected Information throughout the world. Protected information of NIKE can be\nused to NIKE's detriment anywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1.\nCovenant Not to Compete\n(a) Competition Restriction. During EMPLOYEE'S employment at NIKE, under the terms of any employment\ncontract or otherwise, and for one (1) year thereafter (the "Restriction Period"), EMPLOYEE will not directly\nor indirectly own, manage, control or participate in the ownership, management or control of, or be employed\nby, consult for or be connected in any manner\nwith, any business engaged anywhere in the world in the athletic footwear, athletic apparel or sports\nequipment, sports electronics/technology and sports accessories business, or any other business that\ndirectly competes with NIKE or any of its parent, subsidiaries or affiliated corporations (a "Competitor"). This\nprovision is subject to NIKE's option to waive all or any portion of the Restriction Period as more specifically\nprovided below.\n(b)\nExtension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period\nshall automatically toll from the date of the first breach, and all subsequent breaches, until the resolution of\nthe breach through private settlement, judicial or other action, including all appeals. The Restriction Period\nshall continue upon the effective date of any such settlement, judicial or other resolution. NIKE shall not be\nobligated to pay EMPLOYEE the additional compensation described in paragraph 1.1 below during any\nperiod of time in which this Agreement is tolled due to EMPLOYEE's breach. In the event EMPLOYEE\nreceives such additional compensation after any such breach, EMPLOYEE must immediately reimburse\nNIKE in the amount of all such compensation upon the receipt of a written request by NIKE.\n(c)\nWaiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the\nRestriction Period or to limit the definition of Competitor by giving EMPLOYEE seven (7) days' prior notice of\nsuch election. In the event all or a portion of the Restriction Period is waived or the definition of Competitor\nis\nlimited, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to\ncompete has been waived.\n(d)\nAdditional Consideration. As additional consideration for the covenant not to compete described above,\nshould NIKE terminate EMPLOYEE's employment without cause and elect to enforce the non-competition\nagreement, while the Restriction Period is in effect, NIKE shall pay EMPLOYEE a monthly payment equal to\none hundred percent (100%) of EMPLOYEE's last monthly base salary. Except where prohibited by law, if\nNIKE terminates EMPLOYEE for "cause," no additional consideration will be owed to EMPLOYEE under this\nAgreement, and the covenant not to compete will remain enforceable. For purposes of this Agreement only,\n"cause" shall mean (i) insubordination, (ii) acts of dishonesty, (iii) involvement in illegal activities where such\ninvolvement in illegal activities violates NIKE policies, places NIKE at risk or has or could damage NIKE's\nreputation in the community or any of its related or subsidiary companies, (iv) violation of NIKE's anti-\nharassment or anti-discrimination policy or (v) gross neglect of EMPLOYEE'S duties or willful misconduct\nthat, in either case, results in economic harm to NIKE or harm to NIKE's reputation. Nothing in this\nparagraph or Agreement alters the employment-at-wil relationship between NIKE and EMPLOYEE.\nIf EMPLOYEE voluntarily terminates employment and NIKE elects to enforce the non-competition\nagreement, while the Restriction Period is in effect, NIKE shall pay EMPLOYEE a monthly payment equal to\nthe\ngreater of fifty percent (50%) of EMPLOYEE's last monthly base salary or the equivalent of one-twelfth\n(1/12) of fifty percent of the median family income for a four-person family in the state where EMPLOYEE\nresides, as determined by the U.S. Census Bureau for the most recent year available at the time of\nEMPLOYEE's termination. The first payment to EMPLOYEE of additional consideration shall follow on the\nlast business day of the month after NIKE's election to enforce the non-competition agreement. Subsequent\npayments during the Restriction Period shall be payable monthly on the last business day of the month in\naccordance with NIKE's payroll practices.\n(e)\nWithholding and Offset. NIKE reserves the right to withhold from Additional Consideration payable to\nEMPLOYEE all federal, state and local taxes as shall be required, as well as any other amounts authorized\nor required by NIKE policy. NIKE reserves the right, exercisable in its sole discretion, to reduce the amount\nof\nAdditional Consideration by amounts that EMPLOYEE owes NIKE, including but not limited to any\npayments due to NIKE in accordance\nwith the NIKE Tax Equalization Policy if EMPLOYEE is employed as a transferee during his or her\nemployment with NIKE. Employee agrees that notwithstanding the amount of any withholding and/or offset,\neven in an amount that reduces payments of Additional Consideration to zero dollars ($0.00), the covenant\nnot to compete will remain enforceable. To the extent withholding or offset does not extinguish amounts that\nEMPLOYEE owes to NIKE, EMPLOYEE remains obligated for the balance of the amounts owed.\n2.\nSubsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name\nof EMPLOYEE's new employer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any\nsubsequent employer during the Restriction Period, wherever located and regardless of whether such employer\nis a competitor of NIKE.\n3.\nNon-Disclosure Agreement\n(a)\nProtected Information Defined. "Protected Information" shall mean all proprietary information, in whatever\nform and format, of NIKE and all information provided to NIKE by third parties that NIKE is obligated to keep\nconfidential. EMPLOYEE agrees that any and all information to which EMPLOYEE has access concerning\nNIKE projects and interna NIKE information is Protected Information, whether in verbal form, machine-\nreadable form, written or other tangible form, and whether designated as confidential or unmarked. Without\nlimiting the foregoing, Protected Information includes trade secrets and competitively sensitive business or\nprofessional information (regardless of whether such information constitutes a trade secret) relating to\nNIKE's research and development activities, its intellectual property and the filing or pendency of patent\napplications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and\nvendor lists, contract factory lists, pricing information, manufacturing plans, business and marketing plans or\nstrategy, product development plans, product launch plans, financial information, sales information, methods\nof operation, manufacturing processes and methods, products and personnel information.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information\nthat is or becomes part of the public domain through no act or failure to act on the part of EMPLOYEE.\nSpecifically, EMPLOYEE shall be permitted to retain as part of his or her personal portfolio copies of\nEMPLOYEE's original artwork and designs, provided EMPLOYEE presents those personal portfolio copies\nto his or her supervisor for review and approval and provided the artwork or designs have become part of the\npublic domain. In any dispute between the parties with respect to this exclusion, the burden of proof will be\non EMPLOYEE, and such proof will be by clear and convincing evidence.\n(c)\nEmployee's Obligations. During the period of employment by NIKE and for a period of two (2) years\nthereafter, EMPLOYEE will hold in confidence and protect all Protected Information and wil not, at any time,\ndirectly or indirectly, use any Protected Information for any purpose outside the scope of EMPLOYEE's\nemployment with NIKE or disclose any Protected Information to any third person or organization without the\nprior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE will not ever copy,\ntransmit, reproduce, summarize, quote, publish or make any commercial or other use whatsoever of any\nProtected Information without the prior written consent of NIKE. EMPLOYEE will also take reasonable\nsecurity precautions and such other actions as may be necessary to ensure that there is no use or\ndisclosure, intentiona or inadvertent, of Protected Information in violation of this Agreement.\n4.\nReturn of Protected Information. At the request of NIKE at any time, and in any event, upon termination of\nemployment, EMPLOYEE shall immediately return to NIKE all Protected\nInformation in whatever form, including tapes, notebooks, drawings, digital files or other media containing\nProtected Information, and all copies thereof, then in EMPLOYEE'S possession or under EMPLOYEE'S control.\n5.\nUnauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE\nimmediately if EMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected\nInformation by any person employed or not employed by NIKE at the time of such possession, use or\nknowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such incident and will cooperate\nwith NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information.\nNIKE shall provide reasonable reimbursement to EMPLOYEE for each hour so engaged, and that amount shall\nnot be diminished by operation of any payment under paragraph 1(d) of this Agreement.\n6.\non-Solicitation/Non-Recruitment. During the term of this Agreement and for a period of one (1) year\nthereafter, EMPLOYEE wil not directly or indirectly solicit, divert or hire away (or attempt to solicit, divert or hire\naway) to or for himself or any other company or business organization any NIKE employee, whether or not such\nemployee is a full-time employee or temporary employee and whether or not such employment is pursuant to a\nwritten agreement or is at will or any independent contractor working for NIKE.\n7.\nAccounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement,\nNIKE shall be entitled to an accounting and repayment of all profits, compensation, commissions, remuneration\nor benefits that EMPLOYEE directly or indirectly has realized and/or may realize as a result of or in connection\nwith any such violation (including the return of any additional consideration paid by NIKE pursuant to paragraph\n1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or\nremedies to which NIKE may be entitled at law or in equity.\n8.\nGeneral Provisions.\n(a)\nSurvival. This Agreement shall continue in effect after the termination of EMPLOYEE'S employment,\nregardless of the reason for termination.\n(b)\nWaiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement wil\nbe effective unless executed in writing by both parties No written waiver will excuse the performance of any\nact other than the act or acts specifically referred to therein.\n(c)\nSeverability. Each provision herein wil be treated as a separate and independent clause, and\nunenforceability of any one clause will in no way impact the enforceability of any other clause. Should any of\nthe provisions in this Agreement be found to be unreasonable or invalid by a court of competent jurisdiction,\nsuch provision will be enforceable to the maximum extent enforceable by the law of that jurisdiction.\n(d)\nApplicable LawlJurisdiction. This Agreement, and EMPLOYEE's employment hereunder, shall be\nconstrued according to the laws of the state of Oregon. EMPLOYEE further hereby submits to the jurisdiction\nof, and agrees that exclusive jurisdiction over and venue for, any action or proceeding arising out of or\nrelating to this Agreement shall lie in the state and federal courts located in Oregon.\nNIKE, Inc.\nSignature\nSignature\nName\nName\nDate\nTitle\nDate	EX-10 .17 2 nke-5312018xexhibit1017.htm EXHIBIT 10.17\nEXHIBIT 10.17\nEmployee ID: _________________\nStart Date: ___________________\nHiring Manager: _______________\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\n________________\n(“EMPLOYEE”)\nand\nNIKE, Inc., and its parent, divisions, subsidiaries, affiliates, successors and assigns (“NIKE”):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon EMPLOYEE's bona fide\nadvancement with NIKE and is a condition of such advancement. Employee acknowledges that he/she was\ninformed in a written job offer at least two weeks before starting work in his/her new position that this\nCovenant Not to Compete and Non-Disclosure Agreement is required and is a condition of advancement.\nB. Over the course of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or\nis in a position to develop confidential information peculiar to NIKE's business and not generally known to\nthe public as defined below ("Protected Information"). It is anticipated that EMPLOYEE will continue to be\nexposed to Protected Information of greater sensitivity as EMPLOYEE advances in the company, and this\nAgreement will remain in effect in the event EMPLOYEE advances and until EMPLOYEE leaves the\ncompany or it is superseded by a new written agreement executed by the parties.\nC. The nature of NIKE's business is highly competitive, and disclosure of any Protected Information would\nresult in severe damage to NIKE and be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected information of NIKE can be\nused to NIKE’s detriment anywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete\n(a) Competition Restriction. During EMPLOYEE’s employment at NIKE, under the terms of any employment\ncontract or otherwise, and for one (1) year thereafter (the "Restriction Period"), EMPLOYEE will not directly\nor indirectly own, manage, control or participate in the ownership, management or control of, or be employed\nby, consult for or be connected in any manner\nwith, any business engaged anywhere in the world in the athletic footwear, athletic apparel or sports\nequipment, sports electronics/technology and sports accessories business, or any other business that\ndirectly competes with NIKE or any of its parent, subsidiaries or affiliated corporations (a "Competitor"). This\nprovision is subject to NIKE's option to waive all or any portion of the Restriction Period as more specifically\nprovided below.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period\nshall automatically toll from the date of the first breach, and all subsequent breaches, until the resolution of\nthe breach through private settlement, judicial or other action, including all appeals. The Restriction Period\nshall continue upon the effective date of any such settlement, judicial or other resolution. NIKE shall not be\nobligated to pay EMPLOYEE the additional compensation described in paragraph 1.1 below during any\nperiod of time in which this Agreement is tolled due to EMPLOYEE's breach. In the event EMPLOYEE\nreceives such additional compensation after any such breach, EMPLOYEE must immediately reimburse\nNIKE in the amount of all such compensation upon the receipt of a written request by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the\nRestriction Period or to limit the definition of Competitor by giving EMPLOYEE seven (7) days' prior notice of\nsuch election. In the event all or a portion of the Restriction Period is waived or the definition of Competitor is\nlimited, NIKE shall not be obligated to pay EMPLOYEE for any period of time as to which the covenant not to\ncompete has been waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above,\nshould NIKE terminate EMPLOYEE's employment without cause and elect to enforce the non-competition\nagreement, while the Restriction Period is in effect, NIKE shall pay EMPLOYEE a monthly payment equal to\none hundred percent (100%) of EMPLOYEE's last monthly base salary. Except where prohibited by law, if\nNIKE terminates EMPLOYEE for "cause," no additional consideration will be owed to EMPLOYEE under this\nAgreement, and the covenant not to compete will remain enforceable. For purposes of this Agreement only,\n"cause" shall mean (i) insubordination, (ii) acts of dishonesty, (iii) involvement in illegal activities where such\ninvolvement in illegal activities violates NIKE policies, places NIKE at risk or has or could damage NIKE's\nreputation in the community or any of its related or subsidiary companies, (iv) violation of NIKE's anti-\nharassment or anti-discrimination policy or (v) gross neglect of EMPLOYEE'S duties or willful misconduct\nthat, in either case, results in economic harm to NIKE or harm to NIKE's reputation. Nothing in this\nparagraph or Agreement alters the employment-at-will relationship between NIKE and EMPLOYEE.\nIf EMPLOYEE voluntarily terminates employment and NIKE elects to enforce the non-competition\nagreement, while the Restriction Period is in effect, NIKE shall pay EMPLOYEE a monthly payment equal to\nthe greater of fifty percent (50%) of EMPLOYEE's last monthly base salary or the equivalent of one-twelfth\n(1/12) of fifty percent of the median family income for a four-person family in the state where EMPLOYEE\nresides, as determined by the U.S . Census Bureau for the most recent year available at the time of\nEMPLOYEE's termination. The first payment to EMPLOYEE of additional consideration shall follow on the\nlast business day of the month after NIKE's election to enforce the non-competition agreement. Subsequent\npayments during the Restriction Period shall be payable monthly on the last business day of the month in\naccordance with NIKE's payroll practices.\n(e) Withholding and Offset. NIKE reserves the right to withhold from Additional Consideration payable to\nEMPLOYEE all federal, state and local taxes as shall be required, as well as any other amounts authorized\nor required by NIKE policy. NIKE reserves the right, exercisable in its sole discretion, to reduce the amount\nof Additional Consideration by amounts that EMPLOYEE owes NIKE, including but not limited to any\npayments due to NIKE in accordance\nwith the NIKE Tax Equalization Policy if EMPLOYEE is employed as a transferee during his or her\nemployment with NIKE. Employee agrees that notwithstanding the amount of any withholding and/or offset,\neven in an amount that reduces payments of Additional Consideration to zero dollars ($0.00), the covenant\nnot to compete will remain enforceable. To the extent withholding or offset does not extinguish amounts that\nEMPLOYEE owes to NIKE, EMPLOYEE remains obligated for the balance of the amounts owed.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name\nof EMPLOYEE's new employer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any\nsubsequent employer during the Restriction Period, wherever located and regardless of whether such employer\nis a competitor of NIKE.\n3. Non-Disclosure Agreement\n(a) Protected Information Defined. "Protected Information" shall mean all proprietary information, in whatever\nform and format, of NIKE and all information provided to NIKE by third parties that NIKE is obligated to keep\nconfidential. EMPLOYEE agrees that any and all information to which EMPLOYEE has access concerning\nNIKE projects and internal NIKE information is Protected Information, whether in verbal form, machine-\nreadable form, written or other tangible form, and whether designated as confidential or unmarked. Without\nlimiting the foregoing, Protected Information includes trade secrets and competitively sensitive business or\nprofessional information (regardless of whether such information constitutes a trade secret) relating to\nNIKE's research and development activities, its intellectual property and the filing or pendency of patent\napplications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and\nvendor lists, contract factory lists, pricing information, manufacturing plans, business and marketing plans or\nstrategy, product development plans, product launch plans, financial information, sales information, methods\nof operation, manufacturing processes and methods, products and personnel information.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information\nthat is or becomes part of the public domain through no act or failure to act on the part of EMPLOYEE.\nSpecifically, EMPLOYEE shall be permitted to retain as part of his or her personal portfolio copies of\nEMPLOYEE's original artwork and designs, provided EMPLOYEE presents those personal portfolio copies\nto his or her supervisor for review and approval and provided the artwork or designs have become part of the\npublic domain. In any dispute between the parties with respect to this exclusion, the burden of proof will be\non EMPLOYEE, and such proof will be by clear and convincing evidence.\n(c) Employee's Obligations. During the period of employment by NIKE and for a period of two (2) years\nthereafter, EMPLOYEE will hold in confidence and protect all Protected Information and will not, at any time,\ndirectly or indirectly, use any Protected Information for any purpose outside the scope of EMPLOYEE's\nemployment with NIKE or disclose any Protected Information to any third person or organization without the\nprior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE will not ever copy,\ntransmit, reproduce, summarize, quote, publish or make any commercial or other use whatsoever of any\nProtected Information without the prior written consent of NIKE. EMPLOYEE will also take reasonable\nsecurity precautions and such other actions as may be necessary to ensure that there is no use or\ndisclosure, intentional or inadvertent, of Protected Information in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at any time, and in any event, upon termination of\nemployment, EMPLOYEE shall immediately return to NIKE all Protected\nInformation in whatever form, including tapes, notebooks, drawings, digital files or other media containing\nProtected Information, and all copies thereof, then in EMPLOYEE's possession or under EMPLOYEE's control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE\nimmediately if EMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected\nInformation by any person employed or not employed by NIKE at the time of such possession, use or\nknowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such incident and will cooperate\nwith NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information.\nNIKE shall provide reasonable reimbursement to EMPLOYEE for each hour so engaged, and that amount shall\nnot be diminished by operation of any payment under paragraph 1(d) of this Agreement.\n6. Non-Solicitation/Non-Recruitment. During the term of this Agreement and for a period of one (1) year\nthereafter, EMPLOYEE will not directly or indirectly solicit, divert or hire away (or attempt to solicit, divert or hire\naway) to or for himself or any other company or business organization any NIKE employee, whether or not such\nemployee is a full-time employee or temporary employee and whether or not such employment is pursuant to a\nwritten agreement or is at will or any independent contractor working for NIKE.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement,\nNIKE shall be entitled to an accounting and repayment of all profits, compensation, commissions, remuneration\nor benefits that EMPLOYEE directly or indirectly has realized and/or may realize as a result of or in connection\nwith any such violation (including the return of any additional consideration paid by NIKE pursuant to paragraph\n1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or\nremedies to which NIKE may be entitled at law or in equity.\n8. General Provisions.\n(a) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE's employment,\nregardless of the reason for termination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will\nbe effective unless executed in writing by both parties. No written waiver will excuse the performance of any\nact other than the act or acts specifically referred to therein.\n(c) Severability. Each provision herein will be treated as a separate and independent clause, and\nunenforceability of any one clause will in no way impact the enforceability of any other clause. Should any of\nthe provisions in this Agreement be found to be unreasonable or invalid by a court of competent jurisdiction,\nsuch provision will be enforceable to the maximum extent enforceable by the law of that jurisdiction.\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE's employment hereunder, shall be\nconstrued according to the laws of the state of Oregon. EMPLOYEE further hereby submits to the jurisdiction\nof, and agrees that exclusive jurisdiction over and venue for, any action or proceeding arising out of or\nrelating to this Agreement shall lie in the state and federal courts located in Oregon.\nNIKE, Inc.\n__________________________\n_____________________________\nSignature\nSignature\n___________________________\n_____________________________\nName\nName\n_________________\n_____________________________\nDate\nTitle\n_____________________________\nDate
+435fb4cdacfab964d3f243d3002a903b.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 10 d476767dex99d2.htm NON-DISCLOSURE AGREEMENT\nExhibit (d)(2)\nOctober 15, 2012\nIn connection with our mutual consideration of a possible business transaction (the “Potential Transaction”) between JLL Partners, Inc., (the\n“Receiving Party”) and BioClinica, Inc., a Delaware corporation (the “Company” or the “Furnishing Party”), the Receiving Party has requested\ncertain financial and other information concerning the business and affairs of the Company. The Company, from time to time, may furnish to the\nReceiving Party certain Review Material (as defined below) as the Furnishing Party, in its sole and absolute discretion, may determine to furnish\nfrom time to time. As a condition to furnishing and receiving such Review Material, we each agree to comply with the terms and conditions set forth\nbelow in this agreement (this “Agreement”):\n1. Review Material.\nThe term “Review Material” includes (a) all information that the Furnishing Party or any of its Representatives (as defined below), on behalf\nof the Furnishing Party, will furnish to the Receiving Party or its Representatives (in written, oral, visual, electronic or other form) on or after the\ndate of this Agreement, including the terms of the Potential Transaction, and (b) all notes, analyses, compilations, studies, interpretations or other\ndocuments or materials prepared by the Receiving Party or its Representatives which contain, reflect or are based, in whole or in part, upon such\ninformation furnished to the Receiving Party or its Representatives by the Furnishing Party. For purposes hereof, “Representatives” shall mean a\nparty’s affiliates (as such term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and its and\ntheir directors, officers, members, partners, employees, agents, representatives, consultants, accountants, lenders, attorneys and advisors, together\nwith any current or potential financing sources involved in connection with the Potential Transaction.\n2. Use and Disclosure of Review Material.\n(a) Review Material shall at all times be kept strictly confidential and shall not be used or disclosed by the Receiving Party other than as\npermitted hereunder.\n(b) The Receiving Party shall use the Review Material only for the purpose of evaluating, negotiating and implementing the Potential\nTransaction and shall not use the Review Material in any way in violation of this Agreement. The Receiving Party may only disclose Review\nMaterial to persons within its and its Representatives’ organizations who (i) are assisting in Receiving Party’s evaluation, negotiation or\nimplementation of the Potential Transaction, and (ii) are informed in writing by the Receiving Party of the confidential nature of such information\nand the undertakings contained herein, unless such Representative’s employer has already executed a letter on behalf of its employees to treat such\ninformation confidentially or such Representative owes a legal duty to the Receiving Party to treat such information confidentially. Notwithstanding\nthe foregoing, the Receiving Party shall be responsible for any breach of this Agreement by its Representatives.\n(c) The Receiving Party agrees that, without the prior written consent of the Company, the Receiving Party will not (and will direct its\nRepresentatives not to) disclose to any other person aside from its Representatives the fact that the Receiving Party is considering a Potential\nTransaction with the Company, that this Agreement exists, that the Review Material has been made available to the Receiving Party, that discussions\nor negotiations are taking place concerning a Potential Transaction involving the Company or any of the terms, conditions or other facts with respect\nthereto (including the status thereof), except in accordance with the procedures set forth in paragraph (d) below. Likewise, the Furnishing Party\nagrees that, without the prior written consent of the Company, the Furnishing Party will not (and will direct its Representatives not to) disclose to any\nother person aside from its Representatives the fact that the Receiving Party is considering a Potential Transaction with the Company, that this\nAgreement exists, that the Review Material has been made available to the Receiving Party, that discussions or negotiations are taking place\nconcerning a Potential Transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the status\nthereof), except in accordance with the procedures set forth in paragraph (d) below. Without limiting the generality of the foregoing and\nnotwithstanding anything to the contrary contained herein, the Receiving Party further agrees that it will not, directly or indirectly, share the Review\nMaterial with or enter into any agreement, arrangement or understanding, or any discussions which might lead to such agreement, arrangement or\nunderstanding, with any other person (other than its Representatives as permitted by this Agreement), including other potential bidders and equity\nfinancing sources, regarding the Potential Transaction involving the Company without the prior written consent of the Company and only upon such\nperson executing a confidentiality agreement in favor of the Company.\nFurthermore, the Receiving Party shall not enter into any agreement, arrangement or understanding, or any discussions which might lead to such\nagreement, arrangement or understanding, with any debt financing source which may reasonably be expected to limit, restrict, restrain or otherwise\nimpair in any manner, directly or indirectly, the ability of such debt financing source to provide financing or other assistance to any other party\nconsidering a potential transaction with the Company, it being agreed that such debt financing source may establish a “tree” system whereby separate\ngroups or “trees” will be formed and dedicated to you, and each other potential party, respectively, involved in the Potential Transaction, in which\ncase no violation hereunder will be deemed to have occurred. For the avoidance of any doubt, no violation of this Agreement shall be deemed to\nhave occurred to the extent such debt financing source, at its sole determination, cannot or will not establish a “tree” and, as a result, cannot or will\nnot provide financing or other assistance to any other party as a result of you entering into any agreement, arrangement or other understanding,\nwhether written or oral.\n(d) Notwithstanding anything contained in this Agreement to the contrary, if the Receiving Party or its Representatives have been\nrequested or are required (by oral questions, interrogatories, requests for information, or documents, subpoena, civil investigative demand, or similar\nprocess or by applicable law, regulation or stock exchange rule) to disclose any Review Material, the Receiving Party will notify the Furnishing\nParty within a commercially reasonable time frame in writing of such request(s) so that the Furnishing Party may seek, at its sole cost and expense,\nan appropriate protective order or other appropriate remedy or waive the Receiving Party’s compliance with the provisions of this Agreement. The\nReceiving Party agrees that it will put forth commercially reasonable efforts to cooperate with the Furnishing Party in assisting in seeking any\nprotective order or other appropriate remedy at Furnishing Party’s sole cost and expense. If, in the absence of a protective order or other appropriate\nremedy or the receipt of a waiver by the Furnishing Party, the Receiving Party or any of its Representatives are nonetheless, upon advice of counsel,\nlegally compelled to disclose Review Material or else stand liable for contempt or suffer other censure or penalty, the Receiving Party or its\nRepresentatives may, without liability hereunder, disclose only that portion of the Review Material which such counsel advises is legally required to\nbe disclosed, provided that the Receiving Party, or its Representatives, as the case may be, exercises commercially reasonable efforts to preserve the\nconfidentiality of the Review Material, including, without limitation, by putting forth commercially reasonable efforts in cooperating with the\nFurnishing Party to assist in obtaining an appropriate protective order or other reliable assurance that confidential treatment will be accorded the\nReview Material.\n3. Limitation on Obligations. The obligations of the Receiving Party specified in Section 2 shall not apply, and the Receiving Party shall have\nno further obligations, with respect to any Review Material to the extent that (a) such Review Material was, is or becomes generally available to the\npublic other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement, (b) such Review Material\nwas in the possession of Receiving Party or its Representatives prior to its disclosure to the Receiving Party or its Representatives by the Furnishing\nParty or its Representatives pursuant hereto, provided that the source of such information was not known by the Receiving Party to be bound by a\ncontractual, legal or fiduciary obligation of confidentiality to the Furnishing Party with respect to such information, (c) such Review Material was, is\nor becomes available to the Receiving Party or its Representatives on a non-confidential basis from a source other than the Furnishing Party or its\nRepresentatives acting on its behalf, provided that such source is not known by Receiving Party or its Representatives to be bound by a\nconfidentiality agreement with the Furnishing Party, or (d) such Review Material has been or is subsequently independently conceived or developed\nby the Receiving Party or its Representatives without use of or reference to the Review Material.\n4. Term; Return of Review Material. Except as otherwise set forth in Section 7 or elsewhere in this Agreement, this Agreement shall have a\nterm of eighteen months. At any time upon the request of the Furnishing Party for any reason or for no reason, the Receiving Party will, within a\ncommercially reasonable time frame and at its sole option, either deliver to the Furnishing Party all Review Material provided by the Furnishing\nParty or its Representatives acting on its behalf to the Receiving Party (including all copies and summaries or synopses thereof, including, without\nlimitation, all computer and electronic files) or cause all such Review Material to be destroyed, provided, that the Receiving Party and its\nRepresentatives may retain Review Material for its files to the extent required by its respective record retention policies or to comply with legal\nand/or regulatory requirements. Such return or destruction, as applicable, of all Review Material by the Receiving Party and its Representatives shall\nbe certified by an officer of the Receiving Party in a writing delivered to the Furnishing Party. Notwithstanding the return or destruction of Review\nMaterial, the Receiving Party and the Company and their respective Representatives will continue to be bound by their obligations of confidentiality\nand other obligations hereunder for the term of this Agreement.\n5. No Commitment; No Representation or Warranty.\n(a) No contract or agreement with respect to a Potential Transaction shall be deemed to exist unless and until a definitive and binding\ncontract relating thereto has been executed and delivered (a “Definitive Agreement”), and each of the Receiving Party and the Company hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other based on the purported\nexistence of any such contract or agreement unless and until, and only to the extent that, the Receiving Party and the Company shall have entered\ninto a Definitive Agreement with respect to which a breach is alleged. The term “Definitive Agreement” does not include an executed letter of intent\nor any other preliminary written agreement, nor does it include any written or verbal agreement in principle or acceptance of an offer or bid, except\nto the extent otherwise provided therein. Neither the Receiving Party nor the Company shall have any legal obligation of any kind whatsoever with\nrespect to a possible business transaction by virtue of this Agreement or any other written or oral expression with respect to a possible business\ntransaction except, in the case of this Agreement, for the matters specifically agreed to herein. The Receiving Party further acknowledges and agrees\nthat the Company reserves the right, in it sole discretion, to reject any and all proposals made by the Receiving Party or any of its Representatives\nwith regard to a Potential Transaction between the Company and the Receiving Party, and to terminate discussions and negotiations with the\nReceiving Party at any time. The Receiving Party also acknowledges that the Company and its Representatives shall be free to conduct any process\nfor any transaction involving the Company as it shall determine in its sole discretion, including, without limitation, negotiating with any other\ninterested parties and entering into a Definitive Agreement without prior notice to the Receiving Party or its Representatives. Likewise, Receiving\nParty reserves the right to terminate discussions or negotiations with the Company at any time.\n(b) Each of the Receiving Party and the Company understands and acknowledges that neither the Furnishing Party nor its\nRepresentatives is making any representation or warranty as to the accuracy or completeness of any Review Material. Neither the Furnishing Party\nnor its Representatives shall have any liability to the Receiving Party or any of its Representatives relating to or arising from the use of the Review\nMaterial. Only those representations or warranties which are made in a Definitive Agreement, when, as and if executed, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect. Furthermore, nothing contained in this Agreement nor the\nfurnishing of Review Material shall be construed as granting or conferring any rights by license or otherwise in any intellectual property of the\nFurnishing Party, except for a limited right of use as specifically set forth herein. All right, title and interest in the Review Material shall remain with\nthe Furnishing Party.\n6. Current Equity Ownership; Derivative Transactions. The Receiving Party hereby represents to the Company that, as of the date hereof, it\nand its affiliates and associates (as such terms are defined in Rule 12b-2 under the Exchange Act), together with any other person with whom it is\nacting in concert in connection with this matter or have formed a “group” within the meaning of Section 13(d)(3) of the Exchange Act (a “Group\nMember”) beneficially own in the aggregate less than 5% of the outstanding shares of Common Stock of the Company. The Receiving Party hereby\nrepresents to the Company that, as of the date hereof, no agreement, arrangement, or understanding (including without limitation, any derivative or\nshort positions, profit interests, options, warrants, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares) has been\nentered into by or on behalf of, and no agreement, arrangement or understanding has been made, the effect or intent of which is to mitigate loss, to\nmanage risk or to benefit from changes in the share price of any of the Company’s securities, or increase or decrease the voting power with respect to\nany of the Company’ securities, by the Receiving Party or its affiliates or associates (as such terms are defined in Rule 12b-2 under the Exchange\nAct) or any other Group Members of the Receiving Party and to which the Company is not a party. The Receiving Party hereby represents that each\nand every Group Member will be executing a copy of this Agreement, which will be promptly forwarded to the Company.\n7. Restrictions on Unsolicited Acquisition Activities. The Receiving Party acknowledges that the Review Information is being furnished to the\nReceiving Party in consideration of its agreement that the Receiving Party will not, and will direct its affiliates, directors, officers, employees and\nagents not to, directly or indirectly, for a period of one year from the date of this Agreement unless in any such case specifically invited in writing to\ndo so by the Board of Directors of the Company:\n(a) make any public announcement with respect to any proposal for, a transaction between the Company or any of its security holders\nand the Receiving Party (and/or any of the Receiving Party’s affiliates), whether or not any third parties are also involved, directly or indirectly, in\nsuch proposal or transaction, unless such proposal is directed and disclosed solely to the management of the Company and its designated\nrepresentatives, and in the case of any such proposal from or involving parties in addition to, or other than, the Receiving Party, the Company has\ngiven its advance written consent to the involvement of such additional or other parties;\n(b) other than pursuant to a prior written agreement with the Company, purchase, acquire or own, or offer to agree to purchase, acquire or\nown, directly or indirectly, any voting securities or direct or indirect rights (pursuant to an exchange, conversion, pledge or otherwise) or options to\nacquire any voting securities of the Company, except that affiliates of the Receiving Party may, in the aggregate, own beneficially or of record,\ndirectly or indirectly, up to 2.5% of the outstanding voting securities of the Company;\n(c) enter into any agreement, arrangement, or understanding (including, without limitation, any derivative or short positions, profit\ninterests, options, warrants, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares), the effect or intent of which is\nto mitigate loss, to manage risk or to benefit from changes in the share price of any of the Company’s securities, or increase or decrease the voting\npower with respect to any of the Company’s securities;\n(d) other than pursuant to a prior written agreement with the Company, make or in way participate in, directly or indirectly, any\n“solicitation” or “proxies” (as such terms are defined or used in Regulation 14 under the Exchange Act) or become a “participant” in an “election\ncontest” (as such terms are defined or used in Rule 14a-11 under the Exchange Act) with respect to the Company or seek to advise or influence any\nperson with respect to the voting of any voting securities of the Company;\n(e) execute any written consent in lieu of a meeting of holders of any class of securities of the Company unless such written consent is\nsolicited by the Board of Directors of the Company;\n(f) initiate, propose or otherwise solicit shareholders for the approval of one or more stockholder proposals with respect to the Company\nas described in Rule 14a-8 under the Exchange Act or induce or attempt to induce any other person to do so;\n(g) other than pursuant to a prior written agreement with the Company, acquire or affect the control of the Company or directly or\nindirectly participate in or encourage the formation of any “group” (within the meaning of Section 13(d)(3) of the Exchange Act which owns or\nseeks to acquire ownership of voting securities of the Company, or to acquire or affect control of the Company;\n(h) call or seek to have called any meeting of the stockholders of the Company;\n(i) seek election to or seek to place a representative on the Board of Directors of the Company or seek the removal of any member of the\nBoard of Directors of the Company or a change in the composition or size of the Board of Directors of the Company;\n(j) other than pursuant to a prior written agreement with the Company, otherwise act, directly or indirectly, alone or in concert with\nothers, to seek to control or to influence in any manner the management, board of directors, policies or affairs of the Company, or propose to seek to\neffect nor negotiate with or provide financial assistance (by loan, capital contribution or otherwise) or information to any party with respect to any\nform of business combination transaction (including, without limitation, a merger, consolidation or acquisition or disposition of significant assets of\nthe Company or any other entity) with the Company or any affiliate thereof or any restructure, recapitalization or similar transaction with respect to\nthe Company or any affiliate thereof;\n(k) instigate, encourage, assist or render advice to or make any recommendation or proposal to any person or other entity to engage in\nany of the actions covered by clauses (a) through (j) of this Section 7, or render advice with respect to voting securities of the Company;\n(1) take any action, other than pursuant to a prior written agreement with the Company, that might force the Furnishing Party to make a\npublic announcement regarding any of the types of matters set forth in this Section 7;\n(m) except to the extent required by law, make any public statement (or make available to any member of the news media any\ninformation) with respect to any of the matters covered by this Section 7, or with respect to the terms and conditions of, or any of the facts related to,\nthis Agreement; or\n(n) require, other than pursuant to a prior written agreement with the Company, any waiver, modification, termination or amendment of\nthis Section 7 of the relinquishment by the Company of any rights with respect thereto.\nNothing contained in this Section 7 shall restrict the Receiving Party from making a cash tender offer for all of the outstanding capital stock of the\nCompany after such time as both (i) a third party has commenced, within the meaning of Rule 14d-2 of the Exchange Act, a cash tender offer for the\nCompany at a lower price per share than the price per share offered by the Receiving Party in its tender offer and (ii) the Company has recommended\nto its stockholders that they accept such third party’s tender offer.\n8. Rule 10b-5 Limitations. The Receiving Party and the Company each hereby acknowledges to the other that it is aware (and, if applicable,\nthat its Representatives who are apprised of this matter have been advised) that the United States securities laws prohibit any person who has\nmaterial non-public information about a company from purchasing or selling securities of such company, or from communicating such information\nto any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n9. Non-Solicitation of Employees. In consideration of and as a condition to the Company furnishing Review Material under this Agreement,\nthe Receiving Party agrees that for a period of eighteen months from the date of this Agreement, neither the Receiving Party nor any of its affiliates\nwho have received Review Material will, directly or indirectly, solicit to employ any of the current senior-level officers or employees of the\nCompany or its subsidiaries (so long as they are employed by the Company or its subsidiaries) without obtaining the prior written consent of the\nCompany (it being understood that any newspaper or other general solicitation not directed specifically to such person shall not be deemed to be a\nsolicitation for purposes of this provision).\n10. Conduct of Process. The Receiving Party understands and agrees that (a) all inquiries, requests for information and other communications\nwith the Company regarding the Potential Transaction shall be made only through Excel Partners, (b) the Receiving Party will not (and will direct its\nRepresentatives not to) initiate contact with parties known by it to be current employees, customers or suppliers of the Company with respect to the\nPotential Transaction, (c) the Receiving Party will not (and will direct its Representatives not to) discuss any matters relating to the Potential\nTransaction or an employee’s position with, or interest in, the Company after the transaction with any current employee of the Company without the\nprior consent of the Company, (d) the Company and its Representatives shall be free to conduct the process relating to the Potential Transaction in\nsuch manner as it in its sole discretion shall determine (including, without limitation, negotiating with any of the prospective parties and entering into\nan agreement to effect a Potential Transaction without prior notice to the Receiving Party or any other person), (e) any procedures relating to such\nsale may be changed at any time without notice to the Receiving Party or any other person and (f) the Receiving Party shall not have any rights or\nclaims whatsoever against the Company or any of Representatives arising out of or relating to the Potential Transaction (other than any rights or\nclaims arising out of any Definitive Agreement in accordance with its terms). For the avoidance of doubt, nothing herein shall prevent the Receiving\nParty or its Representatives from performing usual and customary due diligence so long as they do not disclose the existence of a Potential\nTransaction.\n11. Remedies. The Receiving Party and the Company agree that money damages may not be a sufficient remedy for any breach of this\nAgreement by it or its Representatives and that the other party shall be entitled to seek equitable relief, including an injunction and specific\nperformance, as a remedy for any such breach. The Receiving Party and the Company agree to waive any requirement for the posting of a bond in\nconnection with any such equitable relief. Such remedy shall not be deemed to be the exclusive remedy for the breach of this Agreement by the\nReceiving Party or the Company or their respective Representatives, but shall be in addition to all other remedies available at law or in equity to the\nother. In the event that either party successfully enforces its obligations hereunder, the other party shall reimburse the enforcing party for all\nreasonable costs and expenses, including reasonable attorneys’ fees, incurred by the enforcing party in this regard. To the extent that any Review\nMaterial may include materials subject to the attorney-client privilege, work-product doctrine or any other applicable privilege concerning pending\nor threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with\nrespect to such matters and it is their mutual desire, intention and understanding that the sharing of such material is not intended to, and shall not,\nwaive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work-product\ndoctrine or other applicable privilege. All Review Material that is entitled to protection under the attorney-client privilege, work-product doctrine\nand other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint-defense doctrine.\n12. As part of this agreement, Receiving Party wishes to advise the Company that it makes investments in other companies in the ordinary\ncourse of business and, as a result of such investments, such companies may be deemed to be affiliated or associated with it. In addition, certain\npersons and entities that may be deemed to be affiliated or associated with Receiving Party represent large organizations over which it has little or no\ncontrol. To the extent that it does not disclose Review Material to any such company, person or entity, the terms of this agreement shall not apply to\nsuch companies, persons or entities, and no such company, person or entity shall be deemed to have been provided with the Review Material solely\nas a result of any of Receiving Party’s Representatives (whether such person has been provided with or has knowledge of the Review Material)\nserving on the board of such company, person, or entity.\n13. Miscellaneous. This Agreement constitutes the final agreement between the parties hereto. It is the complete and exclusive expression of\nthe parties’ agreement on the subject matter of this Agreement. This Agreement supersedes all other oral or written agreements or policies relating to\nthis Agreement. No amendment of this Agreement will be effective unless it is in writing and signed by the parties. No waiver of satisfaction of a\ncondition or nonperformance of an obligation under this Agreement will be effective unless it is in writing and signed by the party granting the\nwaiver, and no such waiver will constitute a waiver of satisfaction of any other condition or nonperformance of any other obligation. It is further\nunderstood and agreed by the Receiving Party and the Company that no failure or delay by the other party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any right power or privilege hereunder. No party may assign any part of its rights or delegate any performance under this Agreement\nexcept with the other party’s prior written consent, provided that consent shall not be required for transfer or assignment pursuant to merger,\nconsolidation or sale of substantially all of the assets of a party). Any purported assignment of rights or delegation of performance in violation of this\nSection 13 is void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective heirs,\nsuccessors and assigns. The laws of the State of Delaware, without giving effect to principles of conflict of laws, govern all matters arising out of or\nrelating to this Agreement. Each party hereto consents to exclusive personal jurisdiction in the State of Delaware and voluntarily submits to the\njurisdiction of the courts of the State of Delaware in any action or proceeding with respect to this Agreement, including the federal district courts\nlocated in such State. Each party agrees that it may be served with process at its address set forth on the first page hereof. If any portion or provision\nof this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement,\nor the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be\naffected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.\nIf you are in agreement with the foregoing, please sign and return one copy of this Agreement which will constitute our legally binding\nagreement with respect to the subject matter of this letter.\nVery truly yours,\nBioClinica, Inc.\nBy: /s/ Ted I. Kaminer\nName: Ted I. Kaminer\nTitle: CFO\nACKNOWLEDGED, AGREED AND CONFIRMED:\nJLL Partners, Inc.\nBy:\n/s/ Andrew Goldfarb\nName:\nAndrew Goldfarb\nTitle:\nVice President\nDate:\nOctober 15, 2012	EX-99.(D)(2) 10 d476767dex99d2.htm NON-DISCLOSURE AGREEMENT\nExhibit (d)(2)\nOctober 15, 2012\nIn connection with our mutual consideration of a possible business transaction (the “Potential Transaction”) between JLL Partners, Inc., (the\n“Receiving Party”) and BioClinica, Inc., a Delaware corporation (the “Company” or the “Furnishing Party”), the Receiving Party has requested\ncertain financial and other information concerning the business and affairs of the Company. The Company, from time to time, may furnish to the\nReceiving Party certain Review Material (as defined below) as the Furnishing Party, in its sole and absolute discretion, may determine to furnish\nfrom time to time. As a condition to furnishing and receiving such Review Material, we each agree to comply with the terms and conditions set forth\nbelow in this agreement (this “Agreement”):\n1. Review Material.\nThe term “Review Material” includes (a) all information that the Furnishing Party or any of its Representatives (as defined below), on behalf\nof the Furnishing Party, will furnish to the Receiving Party or its Representatives (in written, oral, visual, electronic or other form) on or after the\ndate of this Agreement, including the terms of the Potential Transaction, and (b) all notes, analyses, compilations, studies, interpretations or other\ndocuments or materials prepared by the Receiving Party or its Representatives which contain, reflect or are based, in whole or in part, upon such\ninformation furnished to the Receiving Party or its Representatives by the Furnishing Party. For purposes hereof, “Representatives” shall mean a\nparty’s affiliates (as such term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and its and\ntheir directors, officers, members, partners, employees, agents, representatives, consultants, accountants, lenders, attorneys and advisors, together\nwith any current or potential financing sources involved in connection with the Potential Transaction.\n2. Use and Disclosure of Review Material.\n(a) Review Material shall at all times be kept strictly confidential and shall not be used or disclosed by the Receiving Party other than as\npermitted hereunder.\n(b) The Receiving Party shall use the Review Material only for the purpose of evaluating, negotiating and implementing the Potential\nTransaction and shall not use the Review Material in any way in violation of this Agreement. The Receiving Party may only disclose Review\nMaterial to persons within its and its Representatives’ organizations who (i) are assisting in Receiving Party’s evaluation, negotiation or\nimplementation of the Potential Transaction, and (ii) are informed in writing by the Receiving Party of the confidential nature of such information\nand the undertakings contained herein, unless such Representative’s employer has already executed a letter on behalf of its employees to treat such\ninformation confidentially or such Representative owes a legal duty to the Receiving Party to treat such information confidentially. Notwithstanding\nthe foregoing, the Receiving Party shall be responsible for any breach of this Agreement by its Representatives.\n(c) The Receiving Party agrees that, without the prior written consent of the Company, the Receiving Party will not (and will direct its\nRepresentatives not to) disclose to any other person aside from its Representatives the fact that the Receiving Party is considering a Potential\nTransaction with the Company, that this Agreement exists, that the Review Material has been made available to the Receiving Party, that discussions\nor negotiations are taking place concerning a Potential Transaction involving the Company or any of the terms, conditions or other facts with respect\nthereto (including the status thereof), except in accordance with the procedures set forth in paragraph (d) below. Likewise, the Furnishing Party\nagrees that, without the prior written consent of the Company, the Furnishing Party will not (and will direct its Representatives not to) disclose to any\nother person aside from its Representatives the fact that the Receiving Party is considering a Potential Transaction with the Company, that this\nAgreement exists, that the Review Material has been made available to the Receiving Party, that discussions or negotiations are taking place\nconcerning a Potential Transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the status\nthereof), except in accordance with the procedures set forth in paragraph (d) below. Without limiting the generality of the foregoing and\nnotwithstanding anything to the contrary contained herein, the Receiving Party further agrees that it will not, directly or indirectly, share the Review\nMaterial with or enter into any agreement, arrangement or understanding, or any discussions which might lead to such agreement, arrangement or\nunderstanding, with any other person (other than its Representatives as permitted by this Agreement), including other potential bidders and equity\nfinancing sources, regarding the Potential Transaction involving the Company without the prior written consent of the Company and only upon such\nperson executing a confidentiality agreement in favor of the Company.\nFurthermore, the Receiving Party shall not enter into any agreement, arrangement or understanding, or any discussions which might lead to such\nagreement, arrangement or understanding, with any debt financing source which may reasonably be expected to limit, restrict, restrain or otherwise\nimpair in any manner, directly or indirectly, the ability of such debt financing source to provide financing or other assistance to any other party\nconsidering a potential transaction with the Company, it being agreed that such debt financing source may establish a “tree” system whereby separate\ngroups or “trees” will be formed and dedicated to you, and each other potential party, respectively, involved in the Potential Transaction, in which\ncase no violation hereunder will be deemed to have occurred. For the avoidance of any doubt, no violation of this Agreement shall be deemed to\nhave occurred to the extent such debt financing source, at its sole determination, cannot or will not establish a “tree” and, as a result, cannot or will\nnot provide financing or other assistance to any other party as a result of you entering into any agreement, arrangement or other understanding,\nwhether written or oral.\n(d) Notwithstanding anything contained in this Agreement to the contrary, if the Receiving Party or its Representatives have been\nrequested or are required (by oral questions, interrogatories, requests for information, or documents, subpoena, civil investigative demand, or similar\nprocess or by applicable law, regulation or stock exchange rule) to disclose any Review Material, the Receiving Party will notify the Furnishing\nParty within a commercially reasonable time frame in writing of such request(s) so that the Furnishing Party may seek, at its sole cost and expense,\nan appropriate protective order or other appropriate remedy or waive the Receiving Party’s compliance with the provisions of this Agreement. The\nReceiving Party agrees that it will put forth commercially reasonable efforts to cooperate with the Furnishing Party in assisting in seeking any\nprotective order or other appropriate remedy at Furnishing Party’s sole cost and expense. If, in the absence of a protective order or other appropriate\nremedy or the receipt of a waiver by the Furnishing Party, the Receiving Party or any of its Representatives are nonetheless, upon advice of counsel,\nlegally compelled to disclose Review Material or else stand liable for contempt or suffer other censure or penalty, the Receiving Party or its\nRepresentatives may, without liability hereunder, disclose only that portion of the Review Material which such counsel advises is legally required to\nbe disclosed, provided that the Receiving Party, or its Representatives, as the case may be, exercises commercially reasonable efforts to preserve the\nconfidentiality of the Review Material, including, without limitation, by putting forth commercially reasonable efforts in cooperating with the\nFurnishing Party to assist in obtaining an appropriate protective order or other reliable assurance that confidential treatment will be accorded the\nReview Material.\n3. Limitation on Obligations. The obligations of the Receiving Party specified in Section 2 shall not apply, and the Receiving Party shall have\nno further obligations, with respect to any Review Material to the extent that (a) such Review Material was, is or becomes generally available to the\npublic other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement, (b) such Review Material\nwas in the possession of Receiving Party or its Representatives prior to its disclosure to the Receiving Party or its Representatives by the Furnishing\nParty or its Representatives pursuant hereto, provided that the source of such information was not known by the Receiving Party to be bound by a\ncontractual, legal or fiduciary obligation of confidentiality to the Furnishing Party with respect to such information, (c) such Review Material was, is\nor becomes available to the Receiving Party or its Representatives on a non-confidential basis from a source other than the Furnishing Party or its\nRepresentatives acting on its behalf, provided that such source is not known by Receiving Party or its Representatives to be bound by a\nconfidentiality agreement with the Furnishing Party, or (d) such Review Material has been or is subsequently independently conceived or developed\nby the Receiving Party or its Representatives without use of or reference to the Review Material.\n4. Term; Return of Review Material. Except as otherwise set forth in Section 7 or elsewhere in this Agreement, this Agreement shall have a\nterm of eighteen months. At any time upon the request of the Furnishing Party for any reason or for no reason, the Receiving Party will, within a\ncommercially reasonable time frame and at its sole option, either deliver to the Furnishing Party all Review Material provided by the Furnishing\nParty or its Representatives acting on its behalf to the Receiving Party (including all copies and summaries or synopses thereof, including, without\nlimitation, all computer and electronic files) or cause all such Review Material to be destroyed, provided, that the Receiving Party and its\nRepresentatives may retain Review Material for its files to the extent required by its respective record retention policies or to comply with legal\nand/or regulatory requirements. Such return or destruction, as applicable, of all Review Material by the Receiving Party and its Representatives shall\nbe certified by an officer of the Receiving Party in a writing delivered to the Furnishing Party. Notwithstanding the return or destruction of Review\nMaterial, the Receiving Party and the Company and their respective Representatives will continue to be bound by their obligations of confidentiality\nand other obligations hereunder for the term of this Agreement.\n5. No Commitment; No Representation or Warranty.\n(a) No contract or agreement with respect to a Potential Transaction shall be deemed to exist unless and until a definitive and binding\ncontract relating thereto has been executed and delivered (a “Definitive Agreement”), and each of the Receiving Party and the Company hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other based on the purported\nexistence of any such contract or agreement unless and until, and only to the extent that, the Receiving Party and the Company shall have entered\ninto a Definitive Agreement with respect to which a breach is alleged. The term “Definitive Agreement” does not include an executed letter of intent\nor any other preliminary written agreement, nor does it include any written or verbal agreement in principle or acceptance of an offer or bid, except\nto the extent otherwise provided therein. Neither the Receiving Party nor the Company shall have any legal obligation of any kind whatsoever with\nrespect to a possible business transaction by virtue of this Agreement or any other written or oral expression with respect to a possible business\ntransaction except, in the case of this Agreement, for the matters specifically agreed to herein. The Receiving Party further acknowledges and agrees\nthat the Company reserves the right, in it sole discretion, to reject any and all proposals made by the Receiving Party or any of its Representatives\nwith regard to a Potential Transaction between the Company and the Receiving Party, and to terminate discussions and negotiations with the\nReceiving Party at any time. The Receiving Party also acknowledges that the Company and its Representatives shall be free to conduct any process\nfor any transaction involving the Company as it shall determine in its sole discretion, including, without limitation, negotiating with any other\ninterested parties and entering into a Definitive Agreement without prior notice to the Receiving Party or its Representatives. Likewise, Receiving\nParty reserves the right to terminate discussions or negotiations with the Company at any time.\n(b) Each of the Receiving Party and the Company understands and acknowledges that neither the Furnishing Party nor its\nRepresentatives is making any representation or warranty as to the accuracy or completeness of any Review Material. Neither the Furnishing Party\nnor its Representatives shall have any liability to the Receiving Party or any of its Representatives relating to or arising from the use of the Review\nMaterial. Only those representations or warranties which are made in a Definitive Agreement, when, as and if executed, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect. Furthermore, nothing contained in this Agreement nor the\nfurnishing of Review Material shall be construed as granting or conferring any rights by license or otherwise in any intellectual property of the\nFurnishing Party, except for a limited right of use as specifically set forth herein. All right, title and interest in the Review Material shall remain with\nthe Furnishing Party.\nand its affiliates and associates (as such terms are defined in Rule 12b-2 under the Exchange Act), together with any other person with whom it is\nacting in concert in connection with this matter or have formed a “group” within the meaning of Section 13(d)(3) of the Exchange Act (a “Group\nMember”) beneficially own in the aggregate less than 5% of the outstanding shares of Common Stock of the Company. The Receiving Party hereby\nrepresents to the Company that, as of the date hereof, no agreement, arrangement, or understanding (including without limitation, any derivative or\nshort positions, profit interests, options, warrants, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares) has been\nentered into by or on behalf of, and no agreement, arrangement or understanding has been made, the effect or intent of which is to mitigate loss, to\nmanage risk or to benefit from changes in the share price of any of the Company’s securities, or increase or decrease the voting power with respect to\nany of the Company’ securities, by the Receiving Party or its affiliates or associates (as such terms are defined in Rule 12b-2 under the Exchange\nAct) or any other Group Members of the Receiving Party and to which the Company is not a party. The Receiving Party hereby represents that each\nand every Group Member will be executing a copy of this Agreement, which will be promptly forwarded to the Company.\n7. Restrictions on Unsolicited Acquisition Activities. The Receiving Party acknowledges that the Review Information is being furnished to the\nReceiving Party in consideration of its agreement that the Receiving Party will not, and will direct its affiliates, directors, officers, employees and\nagents not to, directly or indirectly, for a period of one year from the date of this Agreement unless in any such case specifically invited in writing to\ndo so by the Board of Directors of the Company:\n(a) make any public announcement with respect to any proposal for, a transaction between the Company or any of its security holders\nand the Receiving Party (and/or any of the Receiving Party’s affiliates), whether or not any third parties are also involved, directly or indirectly, in\nsuch proposal or transaction, unless such proposal is directed and disclosed solely to the management of the Company and its designated\nrepresentatives, and in the case of any such proposal from or involving parties in addition to, or other than, the Receiving Party, the Company has\ngiven its advance written consent to the involvement of such additional or other parties;\n(b) other than pursuant to a prior written agreement with the Company, purchase, acquire or own, or offer to agree to purchase, acquire or\nown, directly or indirectly, any voting securities or direct or indirect rights (pursuant to an exchange, conversion, pledge or otherwise) or options to\nacquire any voting securities of the Company, except that affiliates of the Receiving Party may, in the aggregate, own beneficially or of record,\ndirectly or indirectly, up to 2.5% of the outstanding voting securities of the Company;\n(c) enter into any agreement, arrangement, or understanding (including, without limitation, any derivative or short positions, profit\ninterests, options, warrants, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares), the effect or intent of which is\nto mitigate loss, to manage risk or to benefit from changes in the share price of any of the Company’s securities, or increase or decrease the voting\npower with respect to any of the Company’s securities;\n(d) other than pursuant to a prior written agreement with the Company, make or in way participate in, directly or indirectly, any\n“solicitation” or “proxies” (as such terms are defined or used in Regulation 14 under the Exchange Act) or become a “participant” in an “election\ncontest” (as such terms are defined or used in Rule 14a-11 under the Exchange Act) with respect to the Company or seek to advise or influence any\nperson with respect to the voting of any voting securities of the Company;\n(e) execute any written consent in lieu of a meeting of holders of any class of securities of the Company unless such written consent is\nsolicited by the Board of Directors of the Company;\n(f) initiate, propose or otherwise solicit shareholders for the approval of one or more stockholder proposals with respect to the Company\nas described in Rule 14a-8 under the Exchange Act or induce or attempt to induce any other person to do so;\n(g) other than pursuant to a prior written agreement with the Company, acquire or affect the control of the Company or directly or\nindirectly participate in or encourage the formation of any “group” (within the meaning of Section 13(d)(3) of the Exchange Act which owns or\nseeks to acquire ownership of voting securities of the Company, or to acquire or affect control of the Company;\n(h) call or seek to have called any meeting of the stockholders of the Company;\n(i) seek election to or seek to place a representative on the Board of Directors of the Company or seek the removal of any member of the\nBoard of Directors of the Company or a change in the composition or size of the Board of Directors of the Company;\n(j) other than pursuant to a prior written agreement with the Company, otherwise act, directly or indirectly, alone or in concert with\nothers, to seek to control or to influence in any manner the management, board of directors, policies or affairs of the Company, or propose to seek to\neffect nor negotiate with or provide financial assistance (by loan, capital contribution or otherwise) or information to any party with respect to any\nform of business combination transaction (including, without limitation, a merger, consolidation or acquisition or disposition of significant assets of\nthe Company or any other entity) with the Company or any affiliate thereof or any restructure, recapitalization or similar transaction with respect to\nthe Company or any affiliate thereof;\n(k) instigate, encourage, assist or render advice to or make any recommendation or proposal to any person or other entity to engage in\nany of the actions covered by clauses (a) through (j) of this Section 7, or render advice with respect to voting securities of the Company;\n(1) take any action, other than pursuant to a prior written agreement with the Company, that might force the Furnishing Party to make a\npublic announcement regarding any of the types of matters set forth in this Section 7;\n(m) except to the extent required by law, make any public statement (or make available to any member of the news media any\ninformation) with respect to any of the matters covered by this Section 7, or with respect to the terms and conditions of, or any of the facts related to,\nthis Agreement; or\n(n) require, other than pursuant to a prior written agreement with the Company, any waiver, modification, termination or amendment of\nthis Section 7 of the relinquishment by the Company of any rights with respect thereto.\nNothing contained in this Section 7 shall restrict the Receiving Party from making a cash tender offer for all of the outstanding capital stock of the\nCompany after such time as both (i) a third party has commenced, within the meaning of Rule 14d-2 of the Exchange Act, a cash tender offer for the\nCompany at a lower price per share than the price per share offered by the Receiving Party in its tender offer and (ii) the Company has recommended\nto its stockholders that they accept such third party’s tender offer.\n8. Rule 10b-5 Limitations. The Receiving Party and the Company each hereby acknowledges to the other that it is aware (and, if applicable,\nthat its Representatives who are apprised of this matter have been advised) that the United States securities laws prohibit any person who has\nmaterial non-public information about a company from purchasing or selling securities of such company, or from communicating such information\nto any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n9. Non-Solicitation of Employees. In consideration of and as a condition to the Company furnishing Review Material under this Agreement,\nthe Receiving Party agrees that for a period of eighteen months from the date of this Agreement, neither the Receiving Party nor any of its affiliates\nwho have received Review Material will, directly or indirectly, solicit to employ any of the current senior-level officers or employees of the\nCompany or its subsidiaries (so long as they are employed by the Company or its subsidiaries) without obtaining the prior written consent of the\nCompany (it being understood that any newspaper or other general solicitation not directed specifically to such person shall not be deemed to be a\nsolicitation for purposes of this provision).\n10. Conduct of Process. The Receiving Party understands and agrees that (a) all inquiries, requests for information and other communications\nwith the Company regarding the Potential Transaction shall be made only through Excel Partners, (b) the Receiving Party will not (and will direct its\nRepresentatives not to) initiate contact with parties known by it to be current employees, customers or suppliers of the Company with respect to the\nPotential Transaction, (c) the Receiving Party will not (and will direct its Representatives not to) discuss any matters relating to the Potential\nTransaction or an employee’s position with, or interest in, the Company after the transaction with any current employee of the Company without the\nprior consent of the Company, (d) the Company and its Representatives shall be free to conduct the process relating to the Potential Transaction in\nsuch manner as it in its sole discretion shall determine (including, without limitation, negotiating with any of the prospective parties and entering into\nan agreement to effect a Potential Transaction without prior notice to the Receiving Party or any other person), (e) any procedures relating to such\nsale may be changed at any time without notice to the Receiving Party or any other person and (f) the Receiving Party shall not have any rights or\nclaims whatsoever against the Company or any of Representatives arising out of or relating to the Potential Transaction (other than any rights or\nclaims arising out of any Definitive Agreement in accordance with its terms). For the avoidance of doubt, nothing herein shall prevent the Receiving\nParty or its Representatives from performing usual and customary due diligence so long as they do not disclose the existence of a Potential\nTransaction.\n11. Remedies. The Receiving Party and the Company agree that money damages may not be a sufficient remedy for any breach of this\nAgreement by it or its Representatives and that the other party shall be entitled to seek equitable relief, including an injunction and specific\nperformance, as a remedy for any such breach. The Receiving Party and the Company agree to waive any requirement for the posting of a bond in\nconnection with any such equitable relief. Such remedy shall not be deemed to be the exclusive remedy for the breach of this Agreement by the\nReceiving Party or the Company or their respective Representatives, but shall be in addition to all other remedies available at law or in equity to the\nother. In the event that either party successfully enforces its obligations hereunder, the other party shall reimburse the enforcing party for all\nreasonable costs and expenses, including reasonable attorneys’ fees, incurred by the enforcing party in this regard. To the extent that any Review\nMaterial may include materials subject to the attorney-client privilege, work-product doctrine or any other applicable privilege concerning pending\nor threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with\nrespect to such matters and it is their mutual desire, intention and understanding that the sharing of such material is not intended to, and shall not,\nwaive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work-product\ndoctrine or other applicable privilege. All Review Material that is entitled to protection under the attorney-client privilege, work-product doctrine\nand other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint-defense doctrine.\n12. As part of this agreement, Receiving Party wishes to advise the Company that it makes investments in other companies in the ordinary\ncourse of business and, as a result of such investments, such companies may be deemed to be affiliated or associated with it. In addition, certain\npersons and entities that may be deemed to be affiliated or associated with Receiving Party represent large organizations over which it has little or no\ncontrol. To the extent that it does not disclose Review Material to any such company, person or entity, the terms of this agreement shall not apply to\nsuch companies, persons or entities, and no such company, person or entity shall be deemed to have been provided with the Review Material solely\nas a result of any of Receiving Party’s Representatives (whether such person has been provided with or has knowledge of the Review Material)\nserving on the board of such company, person, or entity.\n13. Miscellaneous. This Agreement constitutes the final agreement between the parties hereto. It is the complete and exclusive expression of\nthe parties’ agreement on the subject matter of this Agreement. This Agreement supersedes all other oral or written agreements or policies relating to\nthis Agreement. No amendment of this Agreement will be effective unless it is in writing and signed by the parties. No waiver of satisfaction of a\ncondition or nonperformance of an obligation under this Agreement will be effective unless it is in writing and signed by the party granting the\nwaiver, and no such waiver will constitute a waiver of satisfaction of any other condition or nonperformance of any other obligation. It is further\nunderstood and agreed by the Receiving Party and the Company that no failure or delay by the other party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any right power or privilege hereunder. No party may assign any part of its rights or delegate any performance under this Agreement\nexcept with the other party’s prior written consent, provided that consent shall not be required for transfer or assignment pursuant to merger,\nconsolidation or sale of substantially all of the assets of a party). Any purported assignment of rights or delegation of performance in violation of this\nSection 13 is void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective heirs,\nsuccessors and assigns. The laws of the State of Delaware, without giving effect to principles of conflict of laws, govern all matters arising out of or\nrelating to this Agreement. Each party hereto consents to exclusive personal jurisdiction in the State of Delaware and voluntarily submits to the\njurisdiction of the courts of the State of Delaware in any action or proceeding with respect to this Agreement, including the federal district courts\nlocated in such State. Each party agrees that it may be served with process at its address set forth on the first page hereof. If any portion or provision\nof this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement,\nor the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be\naffected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.\nIf you are in agreement with the foregoing, please sign and return one copy of this Agreement which will constitute our legally binding\nagreement with respect to the subject matter of this letter.\nVery truly yours,\nBioClinica, Inc.\nBy:  /s/ Ted 1. Kaminer\nName: Ted I. Kaminer\nTitle: CFO\nACKNOWLEDGED, AGREED AND CONFIRMED:\nJLL Partners, Inc.\nBy: /s/ Andrew Goldfarb\nName: Andrew Goldfarb\nTitle: Vice President\nDate: October 15, 2012	EX-99.(D)(2) 10 d476767dex99d2.htm NON-DISCLOSURE AGREEMENT\nExhibit (d)(2)\nOctober 15, 2012\nIn connection with our mutual consideration of a possible business transaction (the "Potential Transaction") between JLL Partners, Inc., (the\n"Receiving Party") and BioClinica, Inc., a Delaware corporation (the "Company" or the "Furnishing Party"), the Receiving Party has requested\ncertain financial and other information concerning the business and affairs of the Company. The Company, from time to time, may furnish to the\nReceiving Party certain Review Material (as defined below) as the Furnishing Party, in its sole and absolute discretion, may determine to furnish\nfrom time to time. As a condition to furnishing and receiving such Review Material, we each agree to comply with the terms and conditions set forth\nbelow in this agreement (this "Agreement"):\n1. Review Material.\nThe term "Review Material" includes (a) all information that the Furnishing Party or any of its Representatives (as defined below), on behalf\nof the Furnishing Party, will furnish to the Receiving Party or its Representatives (in written, oral, visual, electronic or other form) on or after the\ndate of this Agreement, including the terms of the Potential Transaction, and (b) all notes, analyses, compilations, studies, interpretations or other\ndocuments\nor\nmaterials\nprepared\nby\nthe\nReceiving\nParty\nor\nits\nRepresentatives\nwhich\ncontain,\nreflect\nor\nare\nbased,\nin\nwhole\nor\nin\npart,\nupon\nsuch\ninformation furnished to the Receiving Party or its Representatives by the Furnishing Party. For purposes hereof, "Representatives" shall mean a\nparty's affiliates (as such term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and its and\ntheir directors, officers, members, partners, employees, agents, representatives, consultants, accountants, lenders, attorneys and advisors, together\nwith any current or potential financing sources involved in connection with the Potential Transaction.\n2. Use and Disclosure of Review Material.\n(a) Review Material shall at all times be kept strictly confidential and shall not be used or disclosed by the Receiving Party other than as\npermitted hereunder.\n(b) The Receiving Party shall use the Review Material only for the purpose of evaluating, negotiating and implementing the Potential\nTransaction and shall not use the Review Material in any way in violation of this Agreement. The Receiving Party may only disclose Review\nMaterial to persons within its and its Representatives' organizations who (i) are assisting in Receiving Party's evaluation, negotiation or\nimplementation of the Potential Transaction, and (ii) are informed in writing by the Receiving Party of the confidential nature of such information\nand the undertakings contained herein, unless such Representative's employer has already executed a letter on behalf of its employees to treat such\ninformation confidentially or such Representative owes a legal duty to the Receiving Party to treat such information confidentially. Notwithstanding\nthe foregoing, the Receiving Party shall be responsible for any breach of this Agreement by its Representatives.\n(c) The Receiving Party agrees that, without the prior written consent of the Company, the Receiving Party will not (and will direct its\nRepresentatives not to) disclose to any other person aside from its Representatives the fact that the Receiving Party is considering a Potential\nTransaction with the Company, that this Agreement exists, that the Review Material has been made available to the Receiving Party, that discussions\nor negotiations are taking place concerning a Potential Transaction involving the Company or any of the terms, conditions or other facts with respect\nthereto (including the status thereof), except in accordance with the procedures set forth in paragraph (d) below. Likewise, the Furnishing Party\nagrees that, without the prior written consent of the Company, the Furnishing Party will not (and will direct its Representatives not to) disclose to any\nother person aside from its Representatives the fact that the Receiving Party is considering a Potential Transaction with the Company, that this\nAgreement exists, that the Review Material has been made available to the Receiving Party, that discussions or negotiations are taking place\nconcerning a Potential Transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the status\nthereof), except in accordance with the procedures set forth in paragraph (d) below. Without limiting the generality of the foregoing and\nnotwithstanding anything to the contrary contained herein, the Receiving Party further agrees that it will not, directly or indirectly, share the Review\nMaterial\nwith\nor\nenter\ninto\nany\nagreement,\narrangement\nor\nunderstanding,\nor\nany\ndiscussions\nwhich\nmight\nlead\nto\nsuch\nagreement,\narrangement\nor\nunderstanding, with any other person (other than its Representatives as permitted by this Agreement), including other potential bidders and equity\nfinancing sources, regarding the Potential Transaction involving the Company without the prior written consent of the Company and only upon such\nperson executing a confidentiality agreement in favor of the Company.\nFurthermore, the Receiving Party shall not enter into any agreement, arrangement or understanding, or any discussions which might lead to such\nagreement, arrangement or understanding, with any debt financing source which may reasonably be expected to limit, restrict, restrain or otherwise\nimpair in any manner, directly or indirectly, the ability of such debt financing source to provide financing or other assistance to any other party\nconsidering a potential transaction with the Company, it being agreed that such debt financing source may establish a "tree" system whereby separate\ngroups or "trees" will be formed and dedicated to you, and each other potential party, respectively, involved in the Potential Transaction, in which\ncase no violation hereunder will be deemed to have occurred. For the avoidance of any doubt, no violation of this Agreement shall be deemed to\nhave occurred to the extent such debt financing source, at its sole determination, cannot or will not establish a "tree" and, as a result, cannot or will\nnot provide financing or other assistance to any other party as a result of you entering into any agreement, arrangement or other understanding,\nwhether written or oral.\n(d) Notwithstanding anything contained in this Agreement to the contrary, if the Receiving Party or its Representatives have been\nrequested or are required (by oral questions, interrogatories, requests for information, or documents, subpoena, civil investigative demand, or similar\nprocess or by applicable law, regulation or stock exchange rule) to disclose any Review Material, the Receiving Party will notify the Furnishing\nParty within a commercially reasonable time frame in writing of such request(s) so that the Furnishing Party may seek, at its sole cost and expense,\nan appropriate protective order or other appropriate remedy or waive the Receiving Party's compliance with the provisions of this Agreement. The\nReceiving Party agrees that it will put forth commercially reasonable efforts to cooperate with the Furnishing Party in assisting in seeking any\nprotective order or other appropriate remedy at Furnishing Party's sole cost and expense. If, in the absence of a protective order or other appropriate\nremedy or the receipt of a waiver by the Furnishing Party, the Receiving Party or any of its Representatives are nonetheless, upon advice of counsel,\nlegally compelled to disclose Review Material or else stand liable for contempt or suffer other censure or penalty, the Receiving Party or its\nRepresentatives may, without liability hereunder, disclose only that portion of the Review Material which such counsel advises is legally required to\nbe disclosed, provided that the Receiving Party, or its Representatives, as the case may be, exercises commercially reasonable efforts to preserve\nthe\nconfidentiality of the Review Material, including, without limitation, by putting forth commercially reasonable efforts in cooperating with the\nFurnishing Party to assist in obtaining an appropriate protective order or other reliable assurance that confidential treatment will be accorded the\nReview Material.\n3. Limitation on Obligations. The obligations of the Receiving Party specified in Section 2 shall not apply, and the Receiving Party shall have\nno further obligations, with respect to any Review Material to the extent that (a) such Review Material was, is or becomes generally available to the\npublic other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement, (b) such Review Material\nwas in the possession of Receiving Party or its Representatives prior to its disclosure to the Receiving Party or its Representatives by the Furnishing\nParty or its Representatives pursuant hereto, provided that the source of such information was not known by the Receiving Party to be bound by a\ncontractual, legal or fiduciary obligation of confidentiality to the Furnishing Party with respect to such information, (c) such Review Material was, is\nor becomes available to the Receiving Party or its Representatives on a non-confidential basis from a source other than the Furnishing Party or its\nRepresentatives acting on its behalf, provided that such source is not known by Receiving Party or its Representatives to be bound by\na\nconfidentiality agreement with the Furnishing Party, or (d) such Review Material has been or is subsequently independently conceived or developed\nby the Receiving Party or its Representatives without use of or reference to the Review Material.\n4. Term; Return of Review Material. Except as otherwise set forth in Section 7 or elsewhere in this Agreement, this Agreement shall have a\nterm of eighteen months. At any time upon the request of the Furnishing Party for any reason or for no reason, the Receiving Party will, within\na\ncommercially reasonable time frame and at its sole option, either deliver to the Furnishing Party all Review Material provided by the Furnishing\nParty or its Representatives acting on its behalf to the Receiving Party (including all copies and summaries or synopses thereof, including, without\nlimitation, all computer and electronic files) or cause all such Review Material to be destroyed, provided, that the Receiving Party and its\nRepresentatives may retain Review Material for its files to the extent required by its respective record retention policies or to comply with legal\nand/or regulatory requirements. Such return or destruction, as applicable, of all Review Material by the Receiving Party and its Representatives shall\nbe\ncertified by an officer of the Receiving Party in a writing delivered to the Furnishing Party. Notwithstanding the return or destruction of\nReview\nMaterial, the Receiving Party and the Company and their respective Representatives will continue to be bound by their obligations of confidentiality\nand other obligations hereunder for the term of this Agreement.\n5. No Commitment; No Representation or Warranty..\n(a) No contract or agreement with respect to a Potential Transaction shall be deemed to exist unless and until a definitive and binding\ncontract relating thereto has been executed and delivered (a "Definitive Agreement"), and each of the Receiving Party and the Company hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other based on the purported\nexistence\nof\nany\nsuch\ncontract\nor\nagreement\nunless\nand\nuntil,\nand\nonly\nto\nthe\nextent\nthat,\nthe\nReceiving\nParty\nand\nthe\nCompany\nshall\nhave\nentered\ninto a Definitive Agreement with respect to which a breach is alleged. The term "Definitive Agreement" does not include an executed letter of intent\nor any other preliminary written agreement, nor does it include any written or verbal agreement in principle or acceptance of an offer or bid, except\nto the extent otherwise provided therein. Neither the Receiving Party nor the Company shall have any legal obligation of any kind whatsoever with\nrespect to a possible business transaction by virtue of this Agreement or any other written or oral expression with respect to a possible business\ntransaction except, in the case of this Agreement, for the matters specifically agreed to herein. The Receiving Party further acknowledges and agrees\nthat the Company reserves the right, in it sole discretion, to reject any and all proposals made by the Receiving Party or any of its Representatives\nwith regard to a Potential Transaction between the Company and the Receiving Party, and to terminate discussions and negotiations with the\nReceiving Party at any time. The Receiving Party also acknowledges that the Company and its Representatives shall be free to conduct any process\nfor any transaction involving the Company as it shall determine in its sole discretion, including, without limitation, negotiating with any other\ninterested parties and entering into a Definitive Agreement without prior notice to the Receiving Party or its Representatives. Likewise, Receiving\nParty reserves the right to terminate discussions or negotiations with the Company at any time.\n(b) Each of the Receiving Party and the Company understands and acknowledges that neither the Furnishing Party nor its\nRepresentatives is making any representation or warranty as to the accuracy or completeness of any Review Material. Neither the Furnishing Party\nnor its Representatives shall have any liability to the Receiving Party or any of its Representatives relating to or arising from the use of the Review\nMaterial. Only those representations or warranties which are made in a Definitive Agreement, when, as and if executed, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect. Furthermore, nothing contained in this Agreement nor the\nfurnishing of Review Material shall be construed as granting or conferring any rights by license or otherwise in any intellectual property of the\nFurnishing Party, except for a limited right of use as specifically set forth herein. All right, title and interest in the Review Material shall remain with\nthe Furnishing Party.\n6. Current Equity Ownership;. Derivative Transactions. The Receiving Party hereby represents to the Company that, as of the date hereof, it\nand its affiliates and associates (as such terms are defined in Rule 12b-2 under the Exchange Act), together with any other person with whom it\nis\nacting in concert in connection with this matter or have formed a "group" within the meaning of Section 13(d)(3) of the Exchange Act (a "Group\nMember") beneficially own in the aggregate less than 5% of the outstanding shares of Common Stock of the Company. The Receiving Party hereby\nrepresents to the Company that, as of the date hereof, no agreement, arrangement, or understanding (including without limitation, any derivative or\nshort positions, profit interests, options, warrants, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares) has been\nentered into by or on behalf of, and no agreement, arrangement or understanding has been made, the effect or intent of which is to mitigate loss, to\nmanage risk or to benefit from changes in the share price of any of the Company's securities, or increase or decrease the voting power with respect to\nany of the Company' securities, by the Receiving Party or its affiliates or associates (as such terms are defined in Rule 12b-2 under the Exchange\nAct) or any other Group Members of the Receiving Party and to which the Company is not a party. The Receiving Party hereby represents that each\nand every Group Member will be executing a copy of this Agreement, which will be promptly forwarded to the Company.\n7. Restrictions on Unsolicited Acquisition Activities. The Receiving Party acknowledges that the Review Information is being furnished to the\nReceiving Party in consideration of its agreement that the Receiving Party will not, and will direct its affiliates, directors, officers, employees and\nagents not to, directly or indirectly for a period of one year from the date of this Agreement unless in any such case specifically invited in writing\nto\ndo so by the Board of Directors of the Company:\n(a) make any public announcement with respect to any proposal for, a transaction between the Company or any of its security holders\nand the Receiving Party (and/or any of the Receiving Party's affiliates), whether or not any third parties are also involved, directly or indirectly, in\nsuch proposal or transaction, unless such proposal is directed and disclosed solely to the management of the Company and its designated\nrepresentatives, and in the case of any such proposal from or involving parties in addition to, or other than, the Receiving Party, the Company has\ngiven its advance written consent to the involvement of such additional or other parties;\n(b) other than pursuant to a prior written agreement with the Company, purchase, acquire or own, or offer to agree to purchase, acquire or\nown, directly or indirectly, any voting securities or direct or indirect rights (pursuant to an exchange, conversion, pledge or otherwise) or options to\nacquire any voting securities of the Company, except that affiliates of the Receiving Party may, in the aggregate, own beneficially or of record,\ndirectly or indirectly, up to 2.5% of the outstanding voting securities of the Company;\n(c) enter into any agreement, arrangement, or understanding (including, without limitation, any derivative or short positions, profit\ninterests, options, warrants, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares), the effect or intent of which is\nto mitigate loss, to manage risk or to benefit from changes in the share price of any of the Company's securities, or increase or decrease the voting\npower with respect to any of the Company's securities;\n(d) other than pursuant to a prior written agreement with the Company, make or in way participate in, directly or indirectly, any\n"solicitation"\nor\n"proxies"\n(as\nsuch\nterms\nare\ndefined\nor\nused\nin\nRegulation\n14\nunder\nthe\nExchange\nAct)\nor\nbecome\na\n"participant"\nin\nan\n"election\ncontest" (as such terms are defined or used in Rule 14a-11 under the Exchange Act) with respect to the Company or seek to advise or influence any\nperson with respect to the voting of any voting securities of the Company;\n(e) execute any written consent in lieu of a meeting of holders of any class of securities of the Company unless such written consent is\nsolicited by the Board of Directors of the Company;\n(f) initiate, propose or otherwise solicit shareholders for the approval of one or more stockholder proposals with respect to the Company\nas described in Rule 14a-8 under the Exchange Act or induce or attempt to induce any other person to do so;\n(g) other than pursuant to a prior written agreement with the Company, acquire or affect the control of the Company or directly\nor\nindirectly participate in or encourage the formation of any "group" (within the meaning of Section 13(d)(3) of the Exchange Act which owns or\nseeks to acquire ownership of voting securities of the Company, or to acquire or affect control of the Company;\n(h) call or seek to have called any meeting of the stockholders of the Company;\n(i) seek election to or seek to place a representative on the Board of Directors of the Company or seek the removal of any member of the\nBoard of Directors of the Company or a change in the composition or size of the Board of Directors of the Company;\n(j) other than pursuant to a prior written agreement with the Company, otherwise act, directly or indirectly, alone or in concert with\nothers, to seek to control or to influence in any manner the management, board of directors, policies or affairs of the Company, or propose to seek to\neffect nor negotiate with or provide financial assistance (by loan, capital contribution or otherwise) or information to any party with respect to any\nform of business combination transaction (including, without limitation, a merger, consolidation or acquisition or disposition of significant assets of\nthe Company or any other entity) with the Company or any affiliate thereof or any restructure, recapitalization or similar transaction with respect to\nthe Company or any affiliate thereof;\n(k) instigate, encourage, assist or render advice to or make any recommendation or proposal to any person or other entity to engage in\nany of the actions covered by clauses (a) through (j) of this Section 7, or render advice with respect to voting securities of the Company;\n(1) take any action, other than pursuant to a prior written agreement with the Company, that might force the Furnishing Party to make a\npublic announcement regarding any of the types of matters set forth in this Section 7;\n(m) except to the extent required by law, make any public statement (or make available to any member of the news media any\ninformation) with respect to any of the matters covered by this Section 7, or with respect to the terms and conditions of, or any of the facts related to,\nthis Agreement; or\n(n) require, other than pursuant to a prior written agreement with the Company, any waiver, modification, termination or amendment of\nthis Section 7 of the relinquishment by the Company of any rights with respect thereto.\nNothing contained in this Section 7 shall restrict the Receiving Party from making a cash tender offer for all of the outstanding capital stock of the\nCompany after such time as both (i) a third party has commenced, within the meaning of Rule 14d-2 of the Exchange Act, a cash tender offer for the\nCompany at a lower price per share than the price per share offered by the Receiving Party in its tender offer and (ii) the Company has recommended\nto its stockholders that they accept such third party's tender offer.\n8. Rule 10b-5 Limitations. The Receiving Party and the Company each hereby acknowledges to the other that it is aware (and, if applicable,\nthat its Representatives who are apprised of this matter have been advised) that the United States securities laws prohibit any person who has\nmaterial non-public information about a company from purchasing or selling securities of such company, or from communicating such information\nto any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n9. Non-Solicitation of Employees. In consideration of and as a condition to the Company furnishing Review Material under this Agreement,\nthe Receiving Party agrees that for a period of eighteen months from the date of this Agreement, neither the Receiving Party nor any of its affiliates\nwho have received Review Material will, directly or indirectly, solicit to employ any of the current senior-level officers or employees of the\nCompany or its subsidiaries (so long as they are employed by the Company or its subsidiaries) without obtaining the prior written consent of the\nCompany (it being understood that any newspaper or other general solicitation not directed specifically to such person shall not be deemed to be a\nsolicitation for purposes of this provision).\n10. Conduct of Process. The Receiving Party understands and agrees that (a) all inquiries, requests for information and other communications\nwith the Company regarding the Potential Transaction shall be made only through Excel Partners, (b) the Receiving Party will not (and will direct its\nRepresentatives not to) initiate contact with parties known by it to be current employees, customers or suppliers of the Company with respect to the\nPotential Transaction, (c) the Receiving Party will not (and will direct its Representatives not to) discuss any matters relating to the Potential\nTransaction or an employee's position with, or interest in, the Company after the transaction with any current employee of the Company without the\nprior consent of the Company, (d) the Company and its Representatives shall be free to conduct the process relating to the Potential Transaction in\nsuch manner as it in its sole discretion shall determine (including, without limitation, negotiating with any of the prospective parties and entering into\nan agreement to effect a Potential Transaction without prior notice to the Receiving Party or any other person), (e) any procedures relating to such\nsale may be changed at any time without notice to the Receiving Party or any other person and (f) the Receiving Party shall not have any rights or\nclaims whatsoever against the Company or any of Representatives arising out of or relating to the Potential Transaction (other than any rights or\nclaims arising out of any Definitive Agreement in accordance with its terms). For the avoidance of doubt, nothing herein shall prevent the Receiving\nParty or its Representatives from performing usual and customary due diligence so long as they do not disclose the existence of a Potential\nTransaction\n11. Remedies. The Receiving Party and the Company agree that money damages may not be a sufficient remedy for any breach of this\nAgreement by it or its Representatives and that the other party shall be entitled to seek equitable relief, including an injunction and specific\nperformance, as a remedy for any such breach. The Receiving Party and the Company agree to waive any requirement for the posting of a bond\nin\nconnection with any such equitable relief. Such remedy shall not be deemed to be the exclusive remedy for the breach of this Agreement by the\nReceiving Party or the Company or their respective Representatives, but shall be in addition to all other remedies available at law or in equity to the\nother. In the event that either party successfully enforces its obligations hereunder, the other party shall reimburse the enforcing party for all\nreasonable costs and expenses, including reasonable attorneys' fees, incurred by the enforcing party in this regard. To the extent that any Review\nMaterial may include materials subject to the attorney-client privilege, work-product doctrine or any other applicable privilege concerning pending\nor threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with\nrespect to such matters and it is their mutual desire, intention and understanding that the sharing of such material is not intended to, and shall not,\nwaive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work-product\ndoctrine\nor\nother\napplicable\nprivilege.\nAll\nReview\nMaterial\nthat\nis\nentitled\nto\nprotection\nunder\nthe\nattorney-client\nprivilege,\nwork-product\ndoctrine\nand other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint-defense doctrine.\n12. As part of this agreement, Receiving Party wishes to advise the Company that it makes investments in other companies in the ordinary\ncourse of business and, as a result of such investments, such companies may be deemed to be affiliated or associated with it. In addition, certain\npersons and entities that may be deemed to be affiliated or associated with Receiving Party represent large organizations over which it has little or no\ncontrol. To the extent that it does not disclose Review Material to any such company, person or entity, the terms of this agreement shall not apply to\nsuch companies, persons or entities, and no such company, person or entity shall be deemed to have been provided with the Review Material solely\nas a result of any of Receiving Party's Representatives (whether such person has been provided with or has knowledge of the Review Material)\nserving on the board of such company, person, or entity.\n13. Miscellaneous. This Agreement constitutes the final agreement between the parties hereto. It is the complete and exclusive expression of\nthe parties' agreement on the subject matter of this Agreement. This Agreement supersedes all other oral or written agreements or policies relating to\nthis Agreement. No amendment of this Agreement will be effective unless it is in writing and signed by the parties. No waiver of satisfaction of\na\ncondition or nonperformance of an obligation under this Agreement will be effective unless it is in writing and signed by the party granting the\nwaiver, and no such waiver will constitute a waiver of satisfaction of any other condition or nonperformance of any other obligation. It is further\nunderstood and agreed by the Receiving Party and the Company that no failure or delay by the other party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any right power or privilege hereunder. No party may assign any part of its rights or delegate any performance under this Agreement\nexcept with the other party's prior written consent, provided that consent shall not be required for transfer or assignment pursuant to merger,\nconsolidation or sale of substantially all of the assets of a party). Any purported assignment of rights or delegation of performance in violation of this\nSection 13 is void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective heirs,\nsuccessors and assigns. The laws of the State of Delaware, without giving effect to principles of conflict of laws, govern all matters arising out of or\nrelating to this Agreement. Each party hereto consents to exclusive personal jurisdiction in the State of Delaware and voluntarily submits to the\njurisdiction of the courts of the State of Delaware in any action or proceeding with respect to this Agreement, including the federal district courts\nlocated in such State. Each party agrees that it may be served with process at its address set forth on the first page hereof. If any portion or provision\nof this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement,\nor the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be\naffected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.\nIf you are in agreement with the foregoing, please sign and return one copy of this Agreement which will constitute our legally binding\nagreement with respect to the subject matter of this letter.\nVery truly yours,\nBioClinica, Inc.\nBy:\n/s/ Ted I. Kaminer\nName: Ted I. Kaminer\nTitle: CFO\nACKNOWLEDGED, AGREED AND CONFIRMED:\nJLL Partners, Inc.\nBy:\n/s/ Andrew Goldfarb\nName:\nAndrew Goldfarb\nTitle:\nVice President\nDate:\nOctober 15, 2012	EX-99.(D)(2) 10 d476767dex99d2.htm NON-DISCLOSURE AGREEMENT\nExhibit (d)(2)\nOctober 15, 2012\nIn connection with our mutual consideration of a possible business transaction (the “Potential Transaction”) between JLL Partners, Inc., (the\n“Receiving Party”) and BioClinica, Inc., a Delaware corporation (the “Company” or the “Furnishing Party”), the Receiving Party has requested\ncertain financial and other information concerning the business and affairs of the Company. The Company, from time to time, may furnish to the\nReceiving Party certain Review Material (as defined below) as the Furnishing Party, in its sole and absolute discretion, may determine to furnish\nfrom time to time. As a condition to furnishing and receiving such Review Material, we each agree to comply with the terms and conditions set forth\nbelow in this agreement (this “Agreement”):\n1. Review Material.\nThe term “Review Material” includes (a) all information that the Furnishing Party or any of its Representatives (as defined below), on behalf\nof the Furnishing Party, will furnish to the Receiving Party or its Representatives (in written, oral, visual, electronic or other form) on or after the\ndate of this Agreement, including the terms of the Potential Transaction, and (b) all notes, analyses, compilations, studies, interpretations or other\ndocuments or materials prepared by the Receiving Party or its Representatives which contain, reflect or are based, in whole or in part, upon such\ninformation furnished to the Receiving Party or its Representatives by the Furnishing Party. For purposes hereof, “Representatives” shall mean a\nparty’s affiliates (as such term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and its and\ntheir directors, officers, members, partners, employees, agents, representatives, consultants, accountants, lenders, attorneys and advisors, together\nwith any current or potential financing sources involved in connection with the Potential Transaction.\n2. Use and Disclosure of Review Material.\n(a) Review Material shall at all times be kept strictly confidential and shall not be used or disclosed by the Receiving Party other than as\npermitted hereunder.\n(b) The Receiving Party shall use the Review Material only for the purpose of evaluating, negotiating and implementing the Potential\nTransaction and shall not use the Review Material in any way in violation of this Agreement. The Receiving Party may only disclose Review\nMaterial to persons within its and its Representatives’ organizations who (i) are assisting in Receiving Party’s evaluation, negotiation or\nimplementation of the Potential Transaction, and (ii) are informed in writing by the Receiving Party of the confidential nature of such information\nand the undertakings contained herein, unless such Representative’s employer has already executed a letter on behalf of its employees to treat such\ninformation confidentially or such Representative owes a legal duty to the Receiving Party to treat such information confidentially. Notwithstanding\nthe foregoing, the Receiving Party shall be responsible for any breach of this Agreement by its Representatives.\n(c) The Receiving Party agrees that, without the prior written consent of the Company, the Receiving Party will not (and will direct its\nRepresentatives not to) disclose to any other person aside from its Representatives the fact that the Receiving Party is considering a Potential\nTransaction with the Company, that this Agreement exists, that the Review Material has been made available to the Receiving Party, that discussions\nor negotiations are taking place concerning a Potential Transaction involving the Company or any of the terms, conditions or other facts with respect\nthereto (including the status thereof), except in accordance with the procedures set forth in paragraph (d) below. Likewise, the Furnishing Party\nagrees that, without the prior written consent of the Company, the Furnishing Party will not (and will direct its Representatives not to) disclose to any\nother person aside from its Representatives the fact that the Receiving Party is considering a Potential Transaction with the Company, that this\nAgreement exists, that the Review Material has been made available to the Receiving Party, that discussions or negotiations are taking place\nconcerning a Potential Transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the status\nthereof), except in accordance with the procedures set forth in paragraph (d) below. Without limiting the generality of the foregoing and\nnotwithstanding anything to the contrary contained herein, the Receiving Party further agrees that it will not, directly or indirectly, share the Review\nMaterial with or enter into any agreement, arrangement or understanding, or any discussions which might lead to such agreement, arrangement or\nunderstanding, with any other person (other than its Representatives as permitted by this Agreement), including other potential bidders and equity\nfinancing sources, regarding the Potential Transaction involving the Company without the prior written consent of the Company and only upon such\nperson executing a confidentiality agreement in favor of the Company.\nFurthermore, the Receiving Party shall not enter into any agreement, arrangement or understanding, or any discussions which might lead to such\nagreement, arrangement or understanding, with any debt financing source which may reasonably be expected to limit, restrict, restrain or otherwise\nimpair in any manner, directly or indirectly, the ability of such debt financing source to provide financing or other assistance to any other party\nconsidering a potential transaction with the Company, it being agreed that such debt financing source may establish a “tree” system whereby separate\ngroups or “trees” will be formed and dedicated to you, and each other potential party, respectively, involved in the Potential Transaction, in which\ncase no violation hereunder will be deemed to have occurred. For the avoidance of any doubt, no violation of this Agreement shall be deemed to\nhave occurred to the extent such debt financing source, at its sole determination, cannot or will not establish a “tree” and, as a result, cannot or will\nnot provide financing or other assistance to any other party as a result of you entering into any agreement, arrangement or other understanding,\nwhether written or oral.\n(d) Notwithstanding anything contained in this Agreement to the contrary, if the Receiving Party or its Representatives have been\nrequested or are required (by oral questions, interrogatories, requests for information, or documents, subpoena, civil investigative demand, or similar\nprocess or by applicable law, regulation or stock exchange rule) to disclose any Review Material, the Receiving Party will notify the Furnishing\nParty within a commercially reasonable time frame in writing of such request(s) so that the Furnishing Party may seek, at its sole cost and expense,\nan appropriate protective order or other appropriate remedy or waive the Receiving Party’s compliance with the provisions of this Agreement. The\nReceiving Party agrees that it will put forth commercially reasonable efforts to cooperate with the Furnishing Party in assisting in seeking any\nprotective order or other appropriate remedy at Furnishing Party’s sole cost and expense. If, in the absence of a protective order or other appropriate\nremedy or the receipt of a waiver by the Furnishing Party, the Receiving Party or any of its Representatives are nonetheless, upon advice of counsel,\nlegally compelled to disclose Review Material or else stand liable for contempt or suffer other censure or penalty, the Receiving Party or its\nRepresentatives may, without liability hereunder, disclose only that portion of the Review Material which such counsel advises is legally required to\nbe disclosed, provided that the Receiving Party, or its Representatives, as the case may be, exercises commercially reasonable efforts to preserve the\nconfidentiality of the Review Material, including, without limitation, by putting forth commercially reasonable efforts in cooperating with the\nFurnishing Party to assist in obtaining an appropriate protective order or other reliable assurance that confidential treatment will be accorded the\nReview Material.\n3. Limitation on Obligations. The obligations of the Receiving Party specified in Section 2 shall not apply, and the Receiving Party shall have\nno further obligations, with respect to any Review Material to the extent that (a) such Review Material was, is or becomes generally available to the\npublic other than as a result of a disclosure by the Receiving Party or its Representatives in violation of this Agreement, (b) such Review Material\nwas in the possession of Receiving Party or its Representatives prior to its disclosure to the Receiving Party or its Representatives by the Furnishing\nParty or its Representatives pursuant hereto, provided that the source of such information was not known by the Receiving Party to be bound by a\ncontractual, legal or fiduciary obligation of confidentiality to the Furnishing Party with respect to such information, (c) such Review Material was, is\nor becomes available to the Receiving Party or its Representatives on a non-confidential basis from a source other than the Furnishing Party or its\nRepresentatives acting on its behalf, provided that such source is not known by Receiving Party or its Representatives to be bound by a\nconfidentiality agreement with the Furnishing Party, or (d) such Review Material has been or is subsequently independently conceived or developed\nby the Receiving Party or its Representatives without use of or reference to the Review Material.\n4. Term; Return of Review Material. Except as otherwise set forth in Section 7 or elsewhere in this Agreement, this Agreement shall have a\nterm of eighteen months. At any time upon the request of the Furnishing Party for any reason or for no reason, the Receiving Party will, within a\ncommercially reasonable time frame and at its sole option, either deliver to the Furnishing Party all Review Material provided by the Furnishing\nParty or its Representatives acting on its behalf to the Receiving Party (including all copies and summaries or synopses thereof, including, without\nlimitation, all computer and electronic files) or cause all such Review Material to be destroyed, provided, that the Receiving Party and its\nRepresentatives may retain Review Material for its files to the extent required by its respective record retention policies or to comply with legal\nand/or regulatory requirements. Such return or destruction, as applicable, of all Review Material by the Receiving Party and its Representatives shall\nbe certified by an officer of the Receiving Party in a writing delivered to the Furnishing Party. Notwithstanding the return or destruction of Review\nMaterial, the Receiving Party and the Company and their respective Representatives will continue to be bound by their obligations of confidentiality\nand other obligations hereunder for the term of this Agreement.\n5. No Commitment; No Representation or Warranty.\n(a) No contract or agreement with respect to a Potential Transaction shall be deemed to exist unless and until a definitive and binding\ncontract relating thereto has been executed and delivered (a “Definitive Agreement”), and each of the Receiving Party and the Company hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) in connection with or involving the other based on the purported\nexistence of any such contract or agreement unless and until, and only to the extent that, the Receiving Party and the Company shall have entered\ninto a Definitive Agreement with respect to which a breach is alleged. The term “Definitive Agreement” does not include an executed letter of intent\nor any other preliminary written agreement, nor does it include any written or verbal agreement in principle or acceptance of an offer or bid, except\nto the extent otherwise provided therein. Neither the Receiving Party nor the Company shall have any legal obligation of any kind whatsoever with\nrespect to a possible business transaction by virtue of this Agreement or any other written or oral expression with respect to a possible business\ntransaction except, in the case of this Agreement, for the matters specifically agreed to herein. The Receiving Party further acknowledges and agrees\nthat the Company reserves the right, in it sole discretion, to reject any and all proposals made by the Receiving Party or any of its Representatives\nwith regard to a Potential Transaction between the Company and the Receiving Party, and to terminate discussions and negotiations with the\nReceiving Party at any time. The Receiving Party also acknowledges that the Company and its Representatives shall be free to conduct any process\nfor any transaction involving the Company as it shall determine in its sole discretion, including, without limitation, negotiating with any other\ninterested parties and entering into a Definitive Agreement without prior notice to the Receiving Party or its Representatives. Likewise, Receiving\nParty reserves the right to terminate discussions or negotiations with the Company at any time.\n(b) Each of the Receiving Party and the Company understands and acknowledges that neither the Furnishing Party nor its\nRepresentatives is making any representation or warranty as to the accuracy or completeness of any Review Material. Neither the Furnishing Party\nnor its Representatives shall have any liability to the Receiving Party or any of its Representatives relating to or arising from the use of the Review\nMaterial. Only those representations or warranties which are made in a Definitive Agreement, when, as and if executed, and subject to such\nlimitations and restrictions as may be specified therein, will have any legal effect. Furthermore, nothing contained in this Agreement nor the\nfurnishing of Review Material shall be construed as granting or conferring any rights by license or otherwise in any intellectual property of the\nFurnishing Party, except for a limited right of use as specifically set forth herein. All right, title and interest in the Review Material shall remain with\nthe Furnishing Party.\n6. Current Equity Ownership; Derivative Transactions. The Receiving Party hereby represents to the Company that, as of the date hereof, it\nand its affiliates and associates (as such terms are defined in Rule 12b-2 under the Exchange Act), together with any other person with whom it is\nacting in concert in connection with this matter or have formed a “group” within the meaning of Section 13(d)(3) of the Exchange Act (a “Group\nMember”) beneficially own in the aggregate less than 5% of the outstanding shares of Common Stock of the Company. The Receiving Party hereby\nrepresents to the Company that, as of the date hereof, no agreement, arrangement, or understanding (including without limitation, any derivative or\nshort positions, profit interests, options, warrants, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares) has been\nentered into by or on behalf of, and no agreement, arrangement or understanding has been made, the effect or intent of which is to mitigate loss, to\nmanage risk or to benefit from changes in the share price of any of the Company’s securities, or increase or decrease the voting power with respect to\nany of the Company’ securities, by the Receiving Party or its affiliates or associates (as such terms are defined in Rule 12b-2 under the Exchange\nAct) or any other Group Members of the Receiving Party and to which the Company is not a party. The Receiving Party hereby represents that each\nand every Group Member will be executing a copy of this Agreement, which will be promptly forwarded to the Company.\n7. Restrictions on Unsolicited Acquisition Activities. The Receiving Party acknowledges that the Review Information is being furnished to the\nReceiving Party in consideration of its agreement that the Receiving Party will not, and will direct its affiliates, directors, officers, employees and\nagents not to, directly or indirectly, for a period of one year from the date of this Agreement unless in any such case specifically invited in writing to\ndo so by the Board of Directors of the Company:\n(a) make any public announcement with respect to any proposal for, a transaction between the Company or any of its security holders\nand the Receiving Party (and/or any of the Receiving Party’s affiliates), whether or not any third parties are also involved, directly or indirectly, in\nsuch proposal or transaction, unless such proposal is directed and disclosed solely to the management of the Company and its designated\nrepresentatives, and in the case of any such proposal from or involving parties in addition to, or other than, the Receiving Party, the Company has\ngiven its advance written consent to the involvement of such additional or other parties;\n(b) other than pursuant to a prior written agreement with the Company, purchase, acquire or own, or offer to agree to purchase, acquire or\nown, directly or indirectly, any voting securities or direct or indirect rights (pursuant to an exchange, conversion, pledge or otherwise) or options to\nacquire any voting securities of the Company, except that affiliates of the Receiving Party may, in the aggregate, own beneficially or of record,\ndirectly or indirectly, up to 2.5% of the outstanding voting securities of the Company;\n(c) enter into any agreement, arrangement, or understanding (including, without limitation, any derivative or short positions, profit\ninterests, options, warrants, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares), the effect or intent of which is\nto mitigate loss, to manage risk or to benefit from changes in the share price of any of the Company’s securities, or increase or decrease the voting\npower with respect to any of the Company’s securities;\n(d) other than pursuant to a prior written agreement with the Company, make or in way participate in, directly or indirectly, any\n“solicitation” or “proxies” (as such terms are defined or used in Regulation 14 under the Exchange Act) or become a “participant” in an “election\ncontest” (as such terms are defined or used in Rule 14a-11 under the Exchange Act) with respect to the Company or seek to advise or influence any\nperson with respect to the voting of any voting securities of the Company;\n(e) execute any written consent in lieu of a meeting of holders of any class of securities of the Company unless such written consent is\nsolicited by the Board of Directors of the Company;\n(f) initiate, propose or otherwise solicit shareholders for the approval of one or more stockholder proposals with respect to the Company\nas described in Rule 14a-8 under the Exchange Act or induce or attempt to induce any other person to do so;\n(g) other than pursuant to a prior written agreement with the Company, acquire or affect the control of the Company or directly or\nindirectly participate in or encourage the formation of any “group” (within the meaning of Section 13(d)(3) of the Exchange Act which owns or\nseeks to acquire ownership of voting securities of the Company, or to acquire or affect control of the Company;\n(h) call or seek to have called any meeting of the stockholders of the Company;\n(i) seek election to or seek to place a representative on the Board of Directors of the Company or seek the removal of any member of the\nBoard of Directors of the Company or a change in the composition or size of the Board of Directors of the Company;\n(j) other than pursuant to a prior written agreement with the Company, otherwise act, directly or indirectly, alone or in concert with\nothers, to seek to control or to influence in any manner the management, board of directors, policies or affairs of the Company, or propose to seek to\neffect nor negotiate with or provide financial assistance (by loan, capital contribution or otherwise) or information to any party with respect to any\nform of business combination transaction (including, without limitation, a merger, consolidation or acquisition or disposition of significant assets of\nthe Company or any other entity) with the Company or any affiliate thereof or any restructure, recapitalization or similar transaction with respect to\nthe Company or any affiliate thereof;\n(k) instigate, encourage, assist or render advice to or make any recommendation or proposal to any person or other entity to engage in\nany of the actions covered by clauses (a) through (j) of this Section 7, or render advice with respect to voting securities of the Company;\n(1) take any action, other than pursuant to a prior written agreement with the Company, that might force the Furnishing Party to make a\npublic announcement regarding any of the types of matters set forth in this Section 7;\n(m) except to the extent required by law, make any public statement (or make available to any member of the news media any\ninformation) with respect to any of the matters covered by this Section 7, or with respect to the terms and conditions of, or any of the facts related to,\nthis Agreement; or\n(n) require, other than pursuant to a prior written agreement with the Company, any waiver, modification, termination or amendment of\nthis Section 7 of the relinquishment by the Company of any rights with respect thereto.\nNothing contained in this Section 7 shall restrict the Receiving Party from making a cash tender offer for all of the outstanding capital stock of the\nCompany after such time as both (i) a third party has commenced, within the meaning of Rule 14d-2 of the Exchange Act, a cash tender offer for the\nCompany at a lower price per share than the price per share offered by the Receiving Party in its tender offer and (ii) the Company has recommended\nto its stockholders that they accept such third party’s tender offer.\n8. Rule 10b-5 Limitations. The Receiving Party and the Company each hereby acknowledges to the other that it is aware (and, if applicable,\nthat its Representatives who are apprised of this matter have been advised) that the United States securities laws prohibit any person who has\nmaterial non-public information about a company from purchasing or selling securities of such company, or from communicating such information\nto any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.\n9. Non-Solicitation of Employees. In consideration of and as a condition to the Company furnishing Review Material under this Agreement,\nthe Receiving Party agrees that for a period of eighteen months from the date of this Agreement, neither the Receiving Party nor any of its affiliates\nwho have received Review Material will, directly or indirectly, solicit to employ any of the current senior-level officers or employees of the\nCompany or its subsidiaries (so long as they are employed by the Company or its subsidiaries) without obtaining the prior written consent of the\nCompany (it being understood that any newspaper or other general solicitation not directed specifically to such person shall not be deemed to be a\nsolicitation for purposes of this provision).\n10. Conduct of Process. The Receiving Party understands and agrees that (a) all inquiries, requests for information and other communications\nwith the Company regarding the Potential Transaction shall be made only through Excel Partners, (b) the Receiving Party will not (and will direct its\nRepresentatives not to) initiate contact with parties known by it to be current employees, customers or suppliers of the Company with respect to the\nPotential Transaction, (c) the Receiving Party will not (and will direct its Representatives not to) discuss any matters relating to the Potential\nTransaction or an employee’s position with, or interest in, the Company after the transaction with any current employee of the Company without the\nprior consent of the Company, (d) the Company and its Representatives shall be free to conduct the process relating to the Potential Transaction in\nsuch manner as it in its sole discretion shall determine (including, without limitation, negotiating with any of the prospective parties and entering into\nan agreement to effect a Potential Transaction without prior notice to the Receiving Party or any other person), (e) any procedures relating to such\nsale may be changed at any time without notice to the Receiving Party or any other person and (f) the Receiving Party shall not have any rights or\nclaims whatsoever against the Company or any of Representatives arising out of or relating to the Potential Transaction (other than any rights or\nclaims arising out of any Definitive Agreement in accordance with its terms). For the avoidance of doubt, nothing herein shall prevent the Receiving\nParty or its Representatives from performing usual and customary due diligence so long as they do not disclose the existence of a Potential\nTransaction.\n11. Remedies. The Receiving Party and the Company agree that money damages may not be a sufficient remedy for any breach of this\nAgreement by it or its Representatives and that the other party shall be entitled to seek equitable relief, including an injunction and specific\nperformance, as a remedy for any such breach. The Receiving Party and the Company agree to waive any requirement for the posting of a bond in\nconnection with any such equitable relief. Such remedy shall not be deemed to be the exclusive remedy for the breach of this Agreement by the\nReceiving Party or the Company or their respective Representatives, but shall be in addition to all other remedies available at law or in equity to the\nother. In the event that either party successfully enforces its obligations hereunder, the other party shall reimburse the enforcing party for all\nreasonable costs and expenses, including reasonable attorneys’ fees, incurred by the enforcing party in this regard. To the extent that any Review\nMaterial may include materials subject to the attorney-client privilege, work-product doctrine or any other applicable privilege concerning pending\nor threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with\nrespect to such matters and it is their mutual desire, intention and understanding that the sharing of such material is not intended to, and shall not,\nwaive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work-product\ndoctrine or other applicable privilege. All Review Material that is entitled to protection under the attorney-client privilege, work-product doctrine\nand other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint-defense doctrine.\n12. As part of this agreement, Receiving Party wishes to advise the Company that it makes investments in other companies in the ordinary\ncourse of business and, as a result of such investments, such companies may be deemed to be affiliated or associated with it. In addition, certain\npersons and entities that may be deemed to be affiliated or associated with Receiving Party represent large organizations over which it has little or no\ncontrol. To the extent that it does not disclose Review Material to any such company, person or entity, the terms of this agreement shall not apply to\nsuch companies, persons or entities, and no such company, person or entity shall be deemed to have been provided with the Review Material solely\nas a result of any of Receiving Party’s Representatives (whether such person has been provided with or has knowledge of the Review Material)\nserving on the board of such company, person, or entity.\n13. Miscellaneous. This Agreement constitutes the final agreement between the parties hereto. It is the complete and exclusive expression of\nthe parties’ agreement on the subject matter of this Agreement. This Agreement supersedes all other oral or written agreements or policies relating to\nthis Agreement. No amendment of this Agreement will be effective unless it is in writing and signed by the parties. No waiver of satisfaction of a\ncondition or nonperformance of an obligation under this Agreement will be effective unless it is in writing and signed by the party granting the\nwaiver, and no such waiver will constitute a waiver of satisfaction of any other condition or nonperformance of any other obligation. It is further\nunderstood and agreed by the Receiving Party and the Company that no failure or delay by the other party in exercising any right, power or privilege\nhereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any right power or privilege hereunder. No party may assign any part of its rights or delegate any performance under this Agreement\nexcept with the other party’s prior written consent, provided that consent shall not be required for transfer or assignment pursuant to merger,\nconsolidation or sale of substantially all of the assets of a party). Any purported assignment of rights or delegation of performance in violation of this\nSection 13 is void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective heirs,\nsuccessors and assigns. The laws of the State of Delaware, without giving effect to principles of conflict of laws, govern all matters arising out of or\nrelating to this Agreement. Each party hereto consents to exclusive personal jurisdiction in the State of Delaware and voluntarily submits to the\njurisdiction of the courts of the State of Delaware in any action or proceeding with respect to this Agreement, including the federal district courts\nlocated in such State. Each party agrees that it may be served with process at its address set forth on the first page hereof. If any portion or provision\nof this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of this Agreement,\nor the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be\naffected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law.\nIf you are in agreement with the foregoing, please sign and return one copy of this Agreement which will constitute our legally binding\nagreement with respect to the subject matter of this letter.\nVery truly yours,\nBioClinica, Inc.\nBy: /s/ Ted I. Kaminer\nName: Ted I. Kaminer\nTitle: CFO\nACKNOWLEDGED, AGREED AND CONFIRMED:\nJLL Partners, Inc.\nBy:\n/s/ Andrew Goldfarb\nName:\nAndrew Goldfarb\nTitle:\nVice President\nDate:\nOctober 15, 2012
+43b69303f4e6e3dcd8df323020a6453e.pdf	effective_date jurisdiction party term	EX-99.E .25 14 dex99e25.htm MUTUAL NONDISCLOSURE AGREEMENT BETWEEN THE COMPANY &\nXEROX\nExhibit (e)(25)\nMutual Non-Disclosure Agreement\nMutual Non-Disclosure Agreement by and between Xerox Corporation, a New York corporation (“Xerox”) and Global Imaging Systems, Inc., a\nDelaware corporation (“Participant”). In order to explore the possibility of entering into a business relationship (which relationship may take one or\nmore of many forms including, without limitation, joint venture, partnership, investment, equity or asset acquisition, supply agreement or services\nagreement), Xerox and Participant wish to exchange and protect certain confidential information (as defined below). Therefore, Xerox, for itself and\nits subsidiaries and affiliates, and Participant, for itself and its subsidiaries and affiliates, (Xerox and Participant are hereinafter each individually\nreferred to as a “Party” and collectively referred to as the “Parties”) agree that:\n1. The effective date of this non-disclosure agreement (this “Agreement”) is February 12, 2007 (the “Effective Date”).\n2.\n“Confidential Information” shall mean all business information of a Discloser (as defined below) that is disclosed or furnished after the\nEffective Date to a Recipient (as defined below) or its Representative (as defined below) by or on behalf of a Discloser, whether in written,\noral, electronic, Web site-based or other form, and includes any copies, reports, analyses, compilations, studies, notes. Interpretations or other\ndocuments prepared by a Recipient which contain, otherwise reflect or are generated from such information. Confidential Information\nincludes, but is not limited to, customer and vendor-related data, services/support information, and information about products, strategies and\nplans. This Agreement also includes Confidential Information acquired during any facilities tours.\n3. The Confidential Information shall be kept confidential and a Recipient shall not disclose any of the Confidential Information in any manner\nwhatsoever; provided, however, that the Recipient may disclose the Confidential Information only to those of the Recipient’s Representatives\nwho need to know such information for the sole purpose of evaluating a Potential Transaction (as defined below), who agree to keep such\ninformation confidential and who will be bound by the terms hereof to the same extent as if they were parties hereto. In any event, the\nRecipient shall be responsible for any failure to comply with the terms of this Agreement by any of its Representatives and the Recipient\nagrees, at its sole expense, to take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of\nthe Confidential Information. “Representative” shall mean, as to any Party, such Party’s directors, officers, members, partners, employees,\nagents, advisors (including financial advisors, legal counsel and accountants) and controlling persons.\n4. Additionally, without the prior written consent of the Discloser, the Recipients and their Representatives shall not disclose to any other person\nthat the Confidential Information has been made available to the Recipients, that meetings, discussions or negotiations have taken, are taking\nor will take place between the Parties concerning a Potential Transaction or any of the terms, conditions or other matters discussed with respect\nthereto (including the status thereof), except as may be required by law.\n5. The Parties receiving Confidential Information (each, a “Recipient”) from the other Parties disclosing Confidential Information (each, a\n“Discloser”) will use the Confidential Information solely for the purpose of evaluating or undertaking a possible business relationship with or\nregarding the other Party (a “Potential Transaction”), and not for the purpose of forming, operating or participating in a competitive venture or\nany other purpose. A Recipient shall not intentionally use the Confidential Information in any way directly or indirectly detrimental to a\nDiscloser. In particular, each Recipient agrees that the Recipient shall not knowingly, use Confidential Information to divert or attempt to\ndivert any business or customer of a Discloser, or use any such knowledge of information competitively against a Discloser.\n6. Each Party and its respective Representatives will arrange for appropriate contacts for due diligence purposes. It is further understood and\nagreed that all (i) communications regarding the Potential Transaction and (ii) requests for additional information, will be submitted or directed\nexclusively to Christopher Tipton on behalf of Xerox or Lawrence Paine on behalf of Participant, and that neither Party, nor any of their\nrespective Representatives, will initiate or cause to be initiated any communication with any Representative of the other Party (other than as\nprovided herein) concerning the Confidential Information or the Potential Transaction.\n7. Each Party agrees that, (i) each Party shall be free to terminate the other Party’s and such other Party’s Representatives’ access to the\nConfidential Information at any time and to conduct the process for the Potential Transaction as it in its sole discretion shall determine\n(including, without limitation, negotiating with any person and entering into definitive agreements without prior notice to the other Party or\nany other person), (ii) any procedures relating to the Potential Transaction may be changed at any time without notice to the other Party or any\nother person and (iii) each Party shall have the right to reject or accept any potential proposal or offer, for any reason whatsoever, in its sole\ndiscretion and to terminate discussions and negotiations with the other party at any time. Notwithstanding the termination of discussions\nregarding a Potential Transaction, the provisions of this Agreement and the obligations created under it shall survive.\n8. Unless the Parties otherwise agree in writing, a Recipient’s duty to protect Confidential Information expires two years from the Effective Date.\nA Recipient will use the same degree of care, but no less than a reasonable degree of care, as the Recipient uses with respect to its own similar\ninformation to protect the Confidential Information and to prevent (a) any use of Confidential Information not authorized in this Agreement,\n(b) dissemination of Confidential Information to any employee of Recipient without a need to know, (c) communication of Confidential\nInformation to any third party or (d) publication of Confidential Information.\n9. If either Party determines that it does not wish to proceed with a Potential Transaction, it will promptly inform the other Party of that decision.\nAt any time upon the request of any Discloser for any reason, each Recipient will promptly deliver to the Discloser all Confidential\nInformation furnished in tangible form to the Recipient or its Representatives by or on behalf of the Discloser pursuant hereto, will destroy all\ncopies, extracts or other reproductions thereof, whether in paper, electronic or other format or media, and no copy, extract or other reproduction\nof any Confidential Information shall be retained, whether in paper, electronic or other format or media, by any Recipient or its\nRepresentatives. Notwithstanding the return of the Confidential Information, each Recipient and its Representatives will continue to be bound\nby their obligations of confidentiality and other obligations hereunder.\n10. This Agreement imposes no obligation upon a Recipient with respect to Confidential Information which (a) the Recipient can demonstrate was\nalready in its possession before receipt from the Discloser; (b) is or becomes publicly available through no fault of the Recipient in violation of\nthis Agreement; (c) is rightfully received by the Recipient from a third party not known by the Recipient to be subject to a duty\nof confidentiality to the Discloser; (d) is independently developed by the Recipient without reference to any Confidential Information disclosed\nby the Discloser and without a breach of this Agreement; (e) is disclosed under operation of law; or (f) is disclosed by the Recipient with the\nDiscloser’s prior written approval. Further, for purposes of this Agreement, Confidential Information shall be limited to information of a\nbusiness nature and the term Confidential Information shall not include proprietary technical information of a party, including confidential\nprocesses, formulations, designs, source code or other information that would otherwise be considered technical in nature or that could be used\nin the creation of a product, solution or business process. It being expressly understood that such proprietary technical information is not\nsubject to the confidentiality obligations set forth in this Agreement. The parties acknowledge that in the future they may execute and deliver a\nseparate confidential disclosure agreement relating to proprietary technical information. If a Recipient is required by a government body or\ncourt of law to disclose Confidential Information, the Recipient agrees to give the Discloser prompt written notice so that Discloser may\ncontest the disclosure or seek a protective order. If, in the absence of a protective order or other remedy or the receipt of a waiver by the\nDiscloser, the Recipient is, in its reasonable opinion legally compelled to disclose Confidential Information to any tribunal or else stand liable\nfor contempt or suffer other censure or penalty, the Recipient may disclose only that portion of the Confidential Information which it\nreasonably believes is legally required to be disclosed, provided that the Recipient exercises its reasonable efforts to preserve the\nconfidentiality of the Confidential Information, including by cooperating with the Discloser, at the Discloser’s expense, to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such\ntribunal. The terms of confidentiality under this Agreement shall not be construed to limit a Recipient’s right to independently develop or\nacquire products or technologies without use of the Confidential Information. Each Discloser acknowledges that each Recipient may currently\nor in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential\nInformation. Accordingly, nothing in this Agreement will be construed as a representation or agreement that a Recipient will not develop or\nhave developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or\ntechniques contemplated by or embodied in the Confidential Information provided that such Recipient does not violate any of its obligations\nunder this Agreement in connection with such development. Further, each Recipient shall be permitted to use the Residuals related to its\ncurrent or future business activities, which result from access to or work with such Confidential Information, provided that each Recipient shall\nmaintain the confidentiality of the Confidential Information as provided herein, and such use shall not be for the purposes of reverse\nengineering. The term “Residuals” means any and all Confidential Information in intangible form that may be retained in the “unaided”\nmemory of a person having access to that information, including ideas, concepts, know-how or techniques contained therein. For purposes of\nthis Section a person’s memory is considered to be “unaided” if the person has not intentionally memorized or set down intangible form, the\nConfidential Information for the purpose of retaining and subsequently using or disclosing it. Each Recipient’s use of such Residuals remains\nsubject to valid copyrights, patents and trade secret rights of each Discloser. Each Recipient shall not have any obligation to limit or restrict the\nassignment of such persons or to pay royalties for any work resulting from the use of Residuals that is not in violation of the terms of this\nAgreement.\n11. NO WARRANTIES ARE MADE AND NO RESPONSIBILITY OR LIABILITY IS OR WILL BE ACCEPTED BY EITHER PARTY\nIN RELATION TO OR AS TO THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL INFORMATION OR IN\nRELATION TO OR RESULTING FROM THE USE OF THE CONFIDENTIAL INFORMATION. ALL CONFIDENTIAL\nINFORMATION IS PROVIDED “AS IS.”\nEach Party agrees that it is not entitled to rely on the accuracy or completeness of any Confidential Information and that it shall be entitled to\nrely solely on such representations or warranties regarding Confidential Information as may be made in any definitive agreement relating to the\nPotential Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein.\n12. No Party acquires any intellectual property rights under this Agreement except the limited rights necessary to carry out the purposes as set\nforth in this Agreement.\n13. Except as provided in a definitive agreement relating to a Potential Transaction, from the Effective Date and for a period ending one year from\nthe date on which the Parties have terminated discussions concerning a Potential Transaction, each Party agrees not to, either directly or\nthrough others, solicit, initiate discussions with or attempt to solicit for employment any present officer or management employee of the other\nParty with whom it has contact, or who becomes known to it, during the discussions concerning a Potential Transaction (other than persons\nwho no longer are officers, employees, consultants or independent contractors of such other Party at the time discussions are terminated) to\nterminate his or her relationship with the other Party, provided, however, that the foregoing restriction shall not apply to any such officer or\nemployee who (a) responds to a general solicitation for employment contained in a newspaper, trade publication or other periodical, or\n(b) responds to a general solicitation for employment by a recruiter who is making solicitations for a Party or its Representatives generally, so\nlong as such solicitation is not directly or indirectly directed by any of such Party’s or its Representative’s personnel who is aware of this\nAgreement and/or the fact that the Parties are exploring a Potential Transaction with each other. Notwithstanding the foregoing, no person\nemployed by a Party shall in any way directly or indirectly use the information contained in the Confidential Information to solicit for\nemployment any employee of the other Party or any of its subsidiaries with whom it has had contact or who became known to it in connection\nwith the consideration of a Potential Transaction. The foregoing notwithstanding, Xerox agrees that for a period of twelve (12) months from\nthe date hereof, neither Xerox nor any of its affiliates will (or assist or encourage others to), directly or indirectly, solicit for employment or\nemploy any of the persons listed on the attached Schedule A.\n14. Each Party acknowledges that money damages for improper disclosure of Confidential Information or other breach of this Agreement would\nnot be a sufficient remedy; therefore, the injured Party shall be entitled to equitable relief, including Injunction, preliminary Injunction and\nspecific performance, in addition to all other remedies available at law or in equity.\n15. The obligations and duties imposed by this Agreement with respect to any Confidential Information may be enforced by the Discloser of such\nConfidential Information against any and all Recipients of such Confidential Information.\n16. This Agreement is made under, and will be construed according to, the laws of the State of Delaware, USA.\n17. If any provision of this Agreement is found to be invalid or unenforceable in whole or in part, the Parties agree the remaining provisions of this\nAgreement shall remain valid and enforceable to the maximum extent compatible with existing law.\n18. This Agreement does not create any agency or partnership relationship. Each Party understands and agrees that no commitment, contract or\nagreement providing for a Potential Transaction shall be deemed to exist unless and until a final definitive agreement has been executed and\ndelivered, and each Party hereby waives, in advance, any claims (including claims of breach of contract) in connection with a Potential\nTransaction (except for claims under this Agreement) unless and until the Parties shall have entered into a final definitive agreement with\nrespect thereto. Each Party also agrees that unless and until a definitive agreement between the Parties with respect to any Potential\nTransaction has been executed and delivered, neither Party is under any legal obligation of any kind whatsoever with respect to a Potential\nTransaction except for the matters specifically agreed to in this Agreement. This Agreement contains the entire agreement between the Parties\nconcerning the matters referred to herein.\n19. This Agreement will not be assignable or transferable without the prior written consent of the other Party. All additions or modifications to this\nAgreement must be made in writing and must be signed by all Parties. No failure or delay by either Party in exercising any right, power or\nprivilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege hereunder.\n20. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but together shall constitute the same\ninstrument. Each Party agrees that facsimile signatures will have the same legal effect as originals signatures and may be used as evidence of\nexecution.\n21. Xerox hereby acknowledges that the Confidential Material is being furnished to it in consideration of its agreement that, unless otherwise\nagreed in writing by the Participant, for a period of twelve (12) months from the date hereof neither Xerox nor any of its affiliates will\n(a) propose or announce any intention to propose to the Participant or any other person any transaction between Xerox and/or its affiliates and\nthe Participant and/or its security holders or involving any of the Participant’s securities or security holders; (b) acquire or assist, advise or\nencourage any other persons in acquiring, directly or indirectly, control of the Participant or any of the Participant’s securities (or beneficial\nownership thereof, or rights or options to acquire any such securities) constituting 5% or more of a class of equity securities of Participant,\nbusinesses or assets: (c) directly or indirectly, form, join or in any way participate in a third party “group” (or discuss with any third party the\npotential formation of a group) with respect to any potential acquisition or other strategic transaction involving all or a portion of the assets or\nsecurities of the Participant; (d) make, or participate in, any “solicitation” of “proxies” to vote or seek to advise or influence in any manner\nwhatsoever any person or entity with respect to the voting of any securities of the Participant, or whether alone or in concert with others, to\nseek to control, change or influence the management, Board of Directors or policies of the Participant, or nominate any person as a Director of\nthe Participant, or propose any matter to be voted upon by the stockholders of the Participant; (e) request the Participant (or any of its\nRepresentatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (f), except as may\notherwise be required by law rule or regulation, take any action that might be reasonably expected to require the Participant to make a public\nannouncement regarding a possible transaction.\n22. This Agreement will terminate and no longer be of any force or effect two (2) years from the Effective Date.\nXEROX CORPORATION\nPARTICIPANT\nBy:\n/s/ Lawrence A. Zimmerman\nBy:\n/s/ Lawrence Paine\nName:\nLawrence A. Zimmerman\nName:\nLawrence Paine\nTitle:\nSenior Vice President and CFO\nTitle:\nSenior Vice President and General Counsel\nAddress:\n800 Long Ridge Road\nAddress:\n3820 North dale Blvd.\nCity, State, Zip: Stamford, CT 06904\nCity, State, Zip: Tampa, FL 33624\nDate:\n2/15/07\nDate:\n2/15/07	EX-99.E.25 14 dex99e25.htm MUTUAL NONDISCLOSURE AGREEMENT BETWEEN THE COMPANY &\nXEROX\nExhibit (e)(25)\nMutual Non-Disclosure Agreement\nMutual Non-Disclosure Agreement by and between Xerox Corporation, a New York corporation (“Xerox”) and Global Imaging Systems, Inc., a\nDelaware corporation (“Participant”). In order to explore the possibility of entering into a business relationship (which relationship may take one or\nmore of many forms including, without limitation, joint venture, partnership, investment, equity or asset acquisition, supply agreement or services\nagreement), Xerox and Participant wish to exchange and protect certain confidential information (as defined below). Therefore, Xerox, for itself and\nits subsidiaries and affiliates, and Participant, for itself and its subsidiaries and affiliates, (Xerox and Participant are hereinafter each individually\nreferred to as a “Party” and collectively referred to as the “Parties”) agree that:\n1. The effective date of this non-disclosure agreement (this “Agreement”) is February 12, 2007 (the “Effective Date”).\n2. “Confidential Information” shall mean all business information of a Discloser (as defined below) that is disclosed or furnished after the\nEffective Date to a Recipient (as defined below) or its Representative (as defined below) by or on behalf of a Discloser, whether in written,\noral, electronic, Web site-based or other form, and includes any copies, reports, analyses, compilations, studies, notes. Interpretations or other\ndocuments prepared by a Recipient which contain, otherwise reflect or are generated from such information. Confidential Information\nincludes, but is not limited to, customer and vendor-related data, services/support information, and information about products, strategies and\nplans. This Agreement also includes Confidential Information acquired during any facilities tours.\n3. The Confidential Information shall be kept confidential and a Recipient shall not disclose any of the Confidential Information in any manner\nwhatsoever; provided, however, that the Recipient may disclose the Confidential Information only to those of the Recipient’s Representatives\nwho need to know such information for the sole purpose of evaluating a Potential Transaction (as defined below), who agree to keep such\ninformation confidential and who will be bound by the terms hereof to the same extent as if they were parties hereto. In any event, the\nRecipient shall be responsible for any failure to comply with the terms of this Agreement by any of its Representatives and the Recipient\nagrees, at its sole expense, to take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of\nthe Confidential Information. “Representative” shall mean, as to any Party, such Party’s directors, officers, members, partners, employees,\nagents, advisors (including financial advisors, legal counsel and accountants) and controlling persons.\n4.  Additionally, without the prior written consent of the Discloser, the Recipients and their Representatives shall not disclose to any other person\nthat the Confidential Information has been made available to the Recipients, that meetings, discussions or negotiations have taken, are taking\nor will take place between the Parties concerning a Potential Transaction or any of the terms, conditions or other matters discussed with respect\nthereto (including the status thereof), except as may be required by law.\n5. The Parties receiving Confidential Information (each, a “Recipient”) from the other Parties disclosing Confidential Information (each, a\n“Discloser”) will use the Confidential Information solely for the purpose of evaluating or undertaking a possible business relationship with or\nregarding the other Party (a “Potential Transaction”), and not for the purpose of forming, operating or participating in a competitive venture or\nany other purpose. A Recipient shall not intentionally use the Confidential Information in any way directly or indirectly detrimental to a\nDiscloser. In particular, each Recipient agrees that the Recipient shall not knowingly, use Confidential Information to divert or attempt to\ndivert any business or customer of a Discloser, or use any such knowledge of information competitively against a Discloser.\n6.  Each Party and its respective Representatives will arrange for appropriate contacts for due diligence purposes. It is further understood and\nagreed that all (i) communications regarding the Potential Transaction and (ii) requests for additional information, will be submitted or directed\nexclusively to Christopher Tipton on behalf of Xerox or Lawrence Paine on behalf of Participant, and that neither Party, nor any of their\nrespective Representatives, will initiate or cause to be initiated any communication with any Representative of the other Party (other than as\nprovided herein) concerning the Confidential Information or the Potential Transaction.\n7. Each Party agrees that, (i) each Party shall be free to terminate the other Party’s and such other Party’s Representatives’ access to the\nConfidential Information at any time and to conduct the process for the Potential Transaction as it in its sole discretion shall determine\n(including, without limitation, negotiating with any person and entering into definitive agreements without prior notice to the other Party or\nany other person), (ii) any procedures relating to the Potential Transaction may be changed at any time without notice to the other Party or any\nother person and (iii) each Party shall have the right to reject or accept any potential proposal or offer, for any reason whatsoever, in its sole\ndiscretion and to terminate discussions and negotiations with the other party at any time. Notwithstanding the termination of discussions\nregarding a Potential Transaction, the provisions of this Agreement and the obligations created under it shall survive.\n8. Unless the Parties otherwise agree in writing, a Recipient’s duty to protect Confidential Information expires two years from the Effective Date.\nA Recipient will use the same degree of care, but no less than a reasonable degree of care, as the Recipient uses with respect to its own similar\ninformation to protect the Confidential Information and to prevent (a) any use of Confidential Information not authorized in this Agreement,\n(b) dissemination of Confidential Information to any employee of Recipient without a need to know, (¢) communication of Confidential\nInformation to any third party or (d) publication of Confidential Information.\n9.  If either Party determines that it does not wish to proceed with a Potential Transaction, it will promptly inform the other Party of that decision.\nAt any time upon the request of any Discloser for any reason, each Recipient will promptly deliver to the Discloser all Confidential\nInformation furnished in tangible form to the Recipient or its Representatives by or on behalf of the Discloser pursuant hereto, will destroy all\ncopies, extracts or other reproductions thereof, whether in paper, electronic or other format or media, and no copy, extract or other reproduction\nof any Confidential Information shall be retained, whether in paper, electronic or other format or media, by any Recipient or its\nRepresentatives. Notwithstanding the return of the Confidential Information, each Recipient and its Representatives will continue to be bound\nby their obligations of confidentiality and other obligations hereunder.\n10. This Agreement imposes no obligation upon a Recipient with respect to Confidential Information which (a) the Recipient can demonstrate was\nalready in its possession before receipt from the Discloser; (b) is or becomes publicly available through no fault of the Recipient in violation of\nthis Agreement; (c) is rightfully received by the Recipient from a third party not known by the Recipient to be subject to a duty\n11. 12. 13. 14. 15. of confidentiality to the Discloser; (d) is independently developed by the Recipient without reference to any Confidential Information disclosed\nby the Discloser and without a breach of this Agreement; (e) is disclosed under operation of law; or (f) is disclosed by the Recipient with the\nDiscloser’s prior written approval. Further, for purposes of this Agreement, Confidential Information shall be limited to information of a\nbusiness nature and the term Confidential Information shall not include proprietary technical information of a party, including confidential\nprocesses, formulations, designs, source code or other information that would otherwise be considered technical in nature or that could be used\nin the creation of a product, solution or business process. It being expressly understood that such proprietary technical information is not\nsubject to the confidentiality obligations set forth in this Agreement. The parties acknowledge that in the future they may execute and deliver a\nseparate confidential disclosure agreement relating to proprietary technical information. If a Recipient is required by a government body or\ncourt of law to disclose Confidential Information, the Recipient agrees to give the Discloser prompt written notice so that Discloser may\ncontest the disclosure or seek a protective order. If, in the absence of a protective order or other remedy or the receipt of a waiver by the\nDiscloser, the Recipient is, in its reasonable opinion legally compelled to disclose Confidential Information to any tribunal or else stand liable\nfor contempt or suffer other censure or penalty, the Recipient may disclose only that portion of the Confidential Information which it\nreasonably believes is legally required to be disclosed, provided that the Recipient exercises its reasonable efforts to preserve the\nconfidentiality of the Confidential Information, including by cooperating with the Discloser, at the Discloser’s expense, to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such\ntribunal. The terms of confidentiality under this Agreement shall not be construed to limit a Recipient’s right to independently develop or\nacquire products or technologies without use of the Confidential Information. Each Discloser acknowledges that each Recipient may currently\nor in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential\nInformation. Accordingly, nothing in this Agreement will be construed as a representation or agreement that a Recipient will not develop or\nhave developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or\ntechniques contemplated by or embodied in the Confidential Information provided that such Recipient does not violate any of its obligations\nunder this Agreement in connection with such development. Further, each Recipient shall be permitted to use the Residuals related to its\ncurrent or future business activities, which result from access to or work with such Confidential Information, provided that each Recipient shall\nmaintain the confidentiality of the Confidential Information as provided herein, and such use shall not be for the purposes of reverse\nengineering. The term “Residuals” means any and all Confidential Information in intangible form that may be retained in the “unaided”\nmemory of a person having access to that information, including ideas, concepts, know-how or techniques contained therein. For purposes of\nthis Section a person’s memory is considered to be “unaided” if the person has not intentionally memorized or set down intangible form, the\nConfidential Information for the purpose of retaining and subsequently using or disclosing it. Each Recipient’s use of such Residuals remains\nsubject to valid copyrights, patents and trade secret rights of each Discloser. Each Recipient shall not have any obligation to limit or restrict the\nassignment of such persons or to pay royalties for any work resulting from the use of Residuals that is not in violation of the terms of this\nAgreement.\nNO WARRANTIES ARE MADE AND NO RESPONSIBILITY OR LIABILITY IS OR WILL BE ACCEPTED BY EITHER PARTY\nIN RELATION TO OR AS TO THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL INFORMATION OR IN\nRELATION TO OR RESULTING FROM THE USE OF THE CONFIDENTIAL INFORMATION. ALL CONFIDENTIAL\nINFORMATION IS PROVIDED “AS IS.”\nEach Party agrees that it is not entitled to rely on the accuracy or completeness of any Confidential Information and that it shall be entitled to\nrely solely on such representations or warranties regarding Confidential Information as may be made in any definitive agreement relating to the\nPotential Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein.\nNo Party acquires any intellectual property rights under this Agreement except the limited rights necessary to carry out the purposes as set\nforth in this Agreement.\nExcept as provided in a definitive agreement relating to a Potential Transaction, from the Effective Date and for a period ending one year from\nthe date on which the Parties have terminated discussions concerning a Potential Transaction, each Party agrees not to, either directly or\nthrough others, solicit, initiate discussions with or attempt to solicit for employment any present officer or management employee of the other\nParty with whom it has contact, or who becomes known to it, during the discussions concerning a Potential Transaction (other than persons\nwho no longer are officers, employees, consultants or independent contractors of such other Party at the time discussions are terminated) to\nterminate his or her relationship with the other Party, provided, however, that the foregoing restriction shall not apply to any such officer or\nemployee who (a) responds to a general solicitation for employment contained in a newspaper, trade publication or other periodical, or\n(b) responds to a general solicitation for employment by a recruiter who is making solicitations for a Party or its Representatives generally, so\nlong as such solicitation is not directly or indirectly directed by any of such Party’s or its Representative’s personnel who is aware of this\nAgreement and/or the fact that the Parties are exploring a Potential Transaction with each other. Notwithstanding the foregoing, no person\nemployed by a Party shall in any way directly or indirectly use the information contained in the Confidential Information to solicit for\nemployment any employee of the other Party or any of its subsidiaries with whom it has had contact or who became known to it in connection\nwith the consideration of a Potential Transaction. The foregoing notwithstanding, Xerox agrees that for a period of twelve (12) months from\nthe date hereof, neither Xerox nor any of its affiliates will (or assist or encourage others to), directly or indirectly, solicit for employment or\nemploy any of the persons listed on the attached Schedule A.\n \nEach Party acknowledges that money damages for improper disclosure of Confidential Information or other breach of this Agreement would\nnot be a sufficient remedy; therefore, the injured Party shall be entitled to equitable relief, including Injunction, preliminary Injunction and\nspecific performance, in addition to all other remedies available at law or in equity.\nThe obligations and duties imposed by this Agreement with respect to any Confidential Information may be enforced by the Discloser of such\nConfidential Information against any and all Recipients of such Confidential Information.\n16.\n17.\n18.\n19.\n20.\n21.\n22.\nThis Agreement is made under, and will be construed according to, the laws of the State of Delaware, USA.\nIf any provision of this Agreement is found to be invalid or unenforceable in whole or in part, the Parties agree the remaining provisions of this\nAgreement shall remain valid and enforceable to the maximum extent compatible with existing law.\nThis Agreement does not create any agency or partnership relationship. Each Party understands and agrees that no commitment, contract or\nagreement providing for a Potential Transaction shall be deemed to exist unless and until a final definitive agreement has been executed and\ndelivered, and each Party hereby waives, in advance, any claims (including claims of breach of contract) in connection with a Potential\nTransaction (except for claims under this Agreement) unless and until the Parties shall have entered into a final definitive agreement with\nrespect thereto. Each Party also agrees that unless and until a definitive agreement between the Parties with respect to any Potential\nTransaction has been executed and delivered, neither Party is under any legal obligation of any kind whatsoever with respect to a Potential\nTransaction except for the matters specifically agreed to in this Agreement. This Agreement contains the entire agreement between the Parties\nconcerning the matters referred to herein.\nThis Agreement will not be assignable or transferable without the prior written consent of the other Party. All additions or modifications to this\nAgreement must be made in writing and must be signed by all Parties. No failure or delay by either Party in exercising any right, power or\nprivilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege hereunder.\nThis Agreement may be executed in counterparts, each of which shall be deemed to be an original, but together shall constitute the same\ninstrument. Each Party agrees that facsimile signatures will have the same legal effect as originals signatures and may be used as evidence of\nexecution.\nXerox hereby acknowledges that the Confidential Material is being furnished to it in consideration of its agreement that, unless otherwise\nagreed in writing by the Participant, for a period of twelve (12) months from the date hereof neither Xerox nor any of its affiliates will\n(a) propose or announce any intention to propose to the Participant or any other person any transaction between Xerox and/or its affiliates and\nthe Participant and/or its security holders or involving any of the Participant’s securities or security holders; (b) acquire or assist, advise or\nencourage any other persons in acquiring, directly or indirectly, control of the Participant or any of the Participant’s securities (or beneficial\nownership thereof, or rights or options to acquire any such securities) constituting 5% or more of a class of equity securities of Participant,\nbusinesses or assets: (c) directly or indirectly, form, join or in any way participate in a third party “group” (or discuss with any third party the\npotential formation of a group) with respect to any potential acquisition or other strategic transaction involving all or a portion of the assets or\nsecurities of the Participant; (d) make, or participate in, any “solicitation” of “proxies” to vote or seek to advise or influence in any manner\nwhatsoever any person or entity with respect to the voting of any securities of the Participant, or whether alone or in concert with others, to\nseek to control, change or influence the management, Board of Directors or policies of the Participant, or nominate any person as a Director of\nthe Participant, or propose any matter to be voted upon by the stockholders of the Participant; (e) request the Participant (or any of its\nRepresentatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (f), except as may\notherwise be required by law rule or regulation, take any action that might be reasonably expected to require the Participant to make a public\nannouncement regarding a possible transaction.\nThis Agreement will terminate and no longer be of any force or effect two (2) years from the Effective Date.\nXEROX CORPORATION PARTICIPANT By:\n/s/ Lawrence A. Zimmerman By: /s/ Lawrence Paine\nName: Lawrence A. Zimmerman Name: Lawrence Paine Title:\nSenior Vice President and CFO Title: Senior Vice President and General Counsel\nAddress: 800 Long Ridge Road Address: 3820 North dale Blvd. City, State, Zip: ~ Stamford, CT 06904 City, State, Zip: Tampa, FL 33624 Date:\n2/15/07 Date: 2/15/07	EX-99.E.25 14 dex99e25.htm MUTUAL NONDISCLOSURE AGREEMENT BETWEEN THE COMPANY &\nXEROX\nExhibit (e)(25)\nMutual Non-Disclosure Agreement\nMutual Non-Disclosure Agreement by and between Xerox Corporation, a New York corporation ("Xerox") and Global Imaging Systems, Inc., a\nDelaware corporation ("Participant"). In order to explore the possibility of entering into a business relationship (which relationship may take one or\nmore\nof many forms including, without limitation, joint venture, partnership, investment, equity or asset acquisition, supply agreement or services\nagreement), Xerox and Participant wish to exchange and protect certain confidential information (as defined below). Therefore, Xerox, for itself and\nits subsidiaries and affiliates, and Participant, for itself and its subsidiaries and affiliates, (Xerox and Participant are hereinafter each individually\nreferred to as a "Party" and collectively referred to as the "Parties") agree that:\n1.\nThe effective date of this non-disclosure agreement (this "Agreement") is February 12, 2007 (the "Effective Date").\n2.\n"Confidential Information" shall mean all business information of a Discloser (as defined below) that is disclosed or furnished after the\nEffective Date to a Recipient (as defined below) or its Representative (as defined below) by or on behalf of a Discloser, whether in written,\noral, electronic, Web site-based or other form, and includes any copies, reports, analyses, compilations, studies, notes. Interpretations or other\ndocuments prepared by a Recipient which contain, otherwise reflect or are generated from such information. Confidential Information\nincludes, but is not limited to, customer and vendor-related data, services/support information, and information about products, strategies and\nplans. This Agreement also includes Confidential Information acquired during any facilities tours.\n3.\nThe Confidential Information shall be kept confidential and a Recipient shall not disclose any of the Confidential Information in any manner\nwhatsoever; provided, however, that the Recipient may disclose the Confidential Information only to those of the Recipient's Representatives\nwho need to know such information for the sole purpose of evaluating a Potential Transaction (as defined below), who agree to keep such\ninformation confidential and who will be bound by the terms hereof to the same extent as if they were parties hereto. In any event,\nthe\nRecipient shal be responsible for any failure to comply with the terms of this Agreement by any of its Representatives and the Recipient\nagrees, at its sole expense, to take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of\nthe Confidential Information. "Representative" shall mean, as to any Party, such Party's directors, officers, members, partners, employees,\nagents, advisors (including financial advisors, legal counsel and accountants) and controlling persons.\n4.\nAdditionally, without the prior written consent of the Discloser, the Recipients and their Representatives shal not disclose to any other person\nthat the Confidential Information has been made available to the Recipients, that meetings, discussions or negotiations have taken, are taking\nor will take place between the Parties concerning a Potential Transaction or any of the terms, conditions or other matters discussed with respect\nthereto (including the status thereof), except as may be required by law.\n5.\nThe Parties receiving Confidential Information (each, a "Recipient") from the other Parties disclosing Confidential Information (each,\na\n"Discloser") will use the Confidential Information solely for the purpose of evaluating or undertaking a possible business relationship with or\nregarding the other Party (a "Potential Transaction"), and not for the purpose of forming, operating or participating in a competitive venture or\nany other purpose. A Recipient shall not intentionally use the Confidential Information in any way directly or indirectly detrimental to a\nDiscloser. In particular, each Recipient agrees that the Recipient shall not knowingly, use Confidential Information to divert or attempt to\ndivert any business or customer of a Discloser, or use any such knowledge of information competitively against a Discloser.\n6.\nEach Party and its respective Representatives will arrange for appropriate contacts for due diligence purposes. It is further understood and\nagreed that all (i) communications regarding the Potential Transaction and (ii) requests for additional information, will be submitted\nor\ndirected\nexclusively to Christopher Tipton on behalf of Xerox or Lawrence Paine on behalf of Participant, and that neither Party, nor any of their\nrespective Representatives, will initiate or cause to be initiated any communication with any Representative of the other Party (other than\nas\nprovided herein) concerning the Confidential Information or the Potential Transaction.\n7.\nEach Party agrees that, (i) each Party shall be free to terminate the other Party's and such other Party's Representatives' access to the\nConfidential Information at any time and to conduct the process for the Potential Transaction as it in its sole discretion shall determine\n(including, without limitation, negotiating with any person and entering into definitive agreements without prior notice to the other Party\nor\nany other person), (ii) any procedures relating to the Potential Transaction may be changed at any time without notice to the other Party or any\nother person and (iii) each Party shall have the right to reject or accept any potential proposal or offer, for any reason whatsoever, in its\nsole\ndiscretion and to terminate discussions and negotiations with the other party at any time. Notwithstanding the termination of discussions\nregarding a Potential Transaction, the provisions of this Agreement and the obligations created under it shall survive.\n8.\nUnless the Parties otherwise agree in writing, a Recipient's duty to protect Confidential Information expires two years from the Effective Date.\nA Recipient will use the same degree of care, but no less than a reasonable degree of care, as the Recipient uses with respect to its own similar\ninformation\nto\nprotect\nthe\nConfidential\nInformation\nand\nto\nprevent\n(a)\nany\nuse\nof\nConfidential\nInformation\nnot\nauthorized\nin\nthis\nAgreement,\n(b) dissemination of Confidential Information to any employee of Recipient without a need to know, (c) communication of Confidential\nInformation to any third party or (d) publication of Confidential Information.\n9.\nIf either Party determines that it does not wish to proceed with a Potential Transaction, it will promptly inform the other Party of that decision.\nAt any time upon the request of any Discloser for any reason, each Recipient will promptly deliver to the Discloser all Confidential\nInformation furnished in tangible form to the Recipient or its Representatives by or on behalf of the Discloser pursuant hereto, will destroy all\ncopies, extracts or other reproductions thereof, whether in paper, electronic or other format or media, and no copy, extract or other reproduction\nof any Confidential Information shall be retained, whether in paper, electronic or other format or media, by any Recipient or its\nRepresentatives. Notwithstanding the return of the Confidential Information, each Recipient and its Representatives will continue to be bound\nby their obligations of confidentiality and other obligations hereunder.\n10.\nThis Agreement imposes no obligation upon a Recipient with respect to Confidential Information which (a) the Recipient can demonstrate was\nalready in its possession before receipt from the Discloser; (b) is or becomes publicly available through no fault of the Recipient in violation\nof\nthis Agreement; (c) is rightfully received by the Recipient from a third party not known by the Recipient to be subject to a duty\nof confidentiality to the Discloser; (d) is independently developed by the Recipient without reference to any Confidential Information disclosed\nby the Discloser and without a breach of this Agreement; (e) is disclosed under operation of law; or (f) is disclosed by the Recipient with the\nDiscloser's prior written approval. Further, for purposes of this Agreement, Confidential Information shall be limited to information of a\nbusiness nature and the term Confidential Information shall not include proprietary technical information of a party, including confidential\nprocesses, formulations, designs, source code or other information that would otherwise be considered technical in nature or that could be used\nin the creation of a product, solution or business process. It being expressly understood that such proprietary technical information is not\nsubject to the confidentiality obligations set forth in this Agreement. The parties acknowledge that in the future they may execute and deliver a\nseparate confidential disclosure agreement relating to proprietary technical information. If a Recipient is required by a government body or\ncourt of law to disclose Confidential Information, the Recipient agrees to give the Discloser prompt written notice so that Discloser may\ncontest the disclosure or seek a protective order. If, in the absence of a protective order or other remedy or the receipt of a waiver by the\nDiscloser, the Recipient is, in its reasonable opinion legally compelled to disclose Confidential Information to any tribunal or else stand liable\nfor contempt or suffer other censure or penalty, the Recipient may disclose only that portion of the Confidential Information which it\nreasonably believes is legally required to be disclosed, provided that the Recipient exercises its reasonable efforts to preserve the\nconfidentiality of the Confidential Information, including by cooperating with the Discloser, at the Discloser's expense, to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such\ntribunal. The terms of confidentiality under this Agreement shall not be construed to limit a Recipient's right to independently develop or\nacquire products or technologies without use of the Confidential Information. Each Discloser acknowledges that each Recipient may currently\nor in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential\nInformation. Accordingly, nothing in this Agreement will be construed as a representation or agreement that a Recipient will not develop or\nhave developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or\ntechniques contemplated by or embodied in the Confidential Information provided that such Recipient does not violate any of its obligations\nunder this Agreement in connection with such development. Further, each Recipient shall be permitted to use the Residuals related to its\ncurrent or future business activities, which result from access to or work with such Confidential Information, provided that each Recipient shall\nmaintain the confidentiality of the Confidential Information as provided herein, and such use shall not be for the purposes of reverse\nengineering. The term "Residuals" means any and all Confidential Information in intangible form that may be retained in the "unaided"\nmemory of a person having access to that information, including ideas, concepts, know-how or techniques contained therein. For purposes of\nthis Section a person's memory is considered to be "unaided" if the person has not intentionally memorized or set down intangible form, the\nConfidential Information for the purpose of retaining and subsequently using or disclosing it. Each Recipient's use of such Residuals remains\nsubject to valid copyrights, patents and trade secret rights of each Discloser. Each Recipient shall not have any obligation to limit or restrict the\nassignment of such persons or to pay royalties for any work resulting from the use of Residuals that is not in violation of the terms of this\nAgreement.\n11. NO WARRANTIES ARE MADE AND NO RESPONSIBILITY OR LIABILITY IS OR WILL BE ACCEPTED BY EITHER PARTY\nIN RELATION TO OR AS TO THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL INFORMATION OR IN\nRELATION TO OR RESULTING FROM THE USE OF THE CONFIDENTIAL INFORMATION. ALL CONFIDENTIAL\nINFORMATION IS PROVIDED "AS IS."\nEach Party agrees that it is not entitled to rely on the accuracy or completeness of any Confidential Information and that it shall be entitled to\nrely solely on such representations or warranties regarding Confidential Information as may be made in any definitive agreement relating to the\nPotential Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein.\n12. No Party acquires any intellectual property rights under this Agreement except the limited rights necessary to carry out the purposes as set\nforth in this Agreement.\n13.\nExcept as provided in a definitive agreement relating to a Potential Transaction, from the Effective Date and for a period ending one year from\nthe date on which the Parties have terminated discussions concerning a Potential Transaction, each Party agrees not to, either directly or\nthrough others, solicit, initiate discussions with or attempt to solicit for employment any present officer or management employee of the other\nParty with whom it has contact, or who becomes known to it, during the discussions concerning a Potential Transaction (other than persons\nwho no longer are officers, employees, consultants or independent contractors of such other Party at the time discussions are terminated) to\nterminate his or her relationship with the other Party, provided, however, that the foregoing restriction shall not apply to any such officer or\nemployee who (a) responds to a general solicitation for employment contained in a newspaper, trade publication or other periodical,\nor\n(b) responds to a general solicitation for employment by a recruiter who is making solicitations for a Party or its Representatives generally, so\nlong as such solicitation is not directly or indirectly directed by any of such Party's or its Representative's personnel who is aware of this\nAgreement and/or the fact that the Parties are exploring a Potential Transaction with each other. Notwithstanding the foregoing, no person\nemployed by a Party shall in any way directly or indirectly use the information contained in the Confidential Information to solicit for\nemployment any employee of the other Party or any of its subsidiaries with whom it has had contact or who became known to it in connection\nwith the consideration of a Potential Transaction. The foregoing notwithstanding, Xerox agrees that for a period of twelve (12) months from\nthe date hereof, neither Xerox nor any of its affiliates will (or assist or encourage others to), directly or indirectly, solicit for employment or\nemploy any of the persons listed on the attached Schedule A.\n14.\nEach Party acknowledges that money damages for improper disclosure of Confidential Information or other breach of this Agreement would\nnot be a sufficient remedy; therefore, the injured Party shall be entitled to equitable relief, including Injunction, preliminary Injunction and\nspecific performance, in addition to all other remedies available at law or in equity.\n15.\nThe obligations and duties imposed by this Agreement with respect to any Confidential Information may be enforced by the Discloser of such\nConfidential Information against any and all Recipients of such Confidential Information.\n16.\nThis Agreement is made under, and will be construed according to, the laws of the State of Delaware, USA.\n17. If any provision of this Agreement is found to be invalid or unenforceable in whole or in part, the Parties agree the remaining provisions of this\nAgreement shall remain valid and enforceable to the maximum extent compatible with existing law.\n18.\nThis Agreement does not create any agency or partnership relationship. Each Party understands and agrees that no commitment, contract or\nagreement\nproviding\nfor\na\nPotential\nTransaction\nshall\nbe\ndeemed\nto\nexist\nunless\nand\nuntil\na\nfinal\ndefinitive\nagreement\nhas\nbeen\nexecuted\nand\ndelivered, and each Party hereby waives, in advance, any claims (including claims of breach of contract) in connection with a Potential\nTransaction (except for claims under this Agreement) unless and until the Parties shall have entered into a final definitive agreement with\nrespect thereto. Each Party also agrees that unless and until a definitive agreement between the Parties with respect to any Potential\nTransaction has been executed and delivered, neither Party is under any legal obligation of any kind whatsoever with respect to a Potential\nTransaction except for the matters specifically agreed to in this Agreement. This Agreement contains the entire agreement between the Parties\nconcerning the matters referred to herein.\n19.\nThis Agreement will not be assignable or transferable without the prior written consent of the other Party. All additions or modifications to this\nAgreement must be made in writing and must be signed by all Parties. No failure or delay by either Party in exercising any right, power or\nprivilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege hereunder.\n20. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but together shall constitute the same\ninstrument. Each Party agrees that facsimile signatures will have the same legal effect as originals signatures and may be used as evidence of\nexecution.\n21. Xerox hereby acknowledges that the Confidential Material is being furnished to it in consideration of its agreement that, unless otherwise\nagreed in writing by the Participant, for a period of twelve (12) months from the date hereof neither Xerox nor any of its affiliates will\n(a) propose or announce any intention to propose to the Participant or any other person any transaction between Xerox and/or its affiliates and\nthe Participant and/or its security holders or involving any of the Participant's securities or security holders; (b) acquire or assist, advise or\nencourage any other persons in acquiring, directly or indirectly, control of the Participant or any of the Participant's securities (or beneficial\nownership thereof, or rights or options to acquire any such securities) constituting 5% or more of a class of equity securities of Participant,\nbusinesses or assets: (c) directly or indirectly, form, join or in any way participate in a third party "group" (or discuss with any third party the\npotential formation of a group) with respect to any potential acquisition or other strategic transaction involving all or a portion of the assets or\nsecurities of the Participant; (d) make, or participate in, any "solicitation" of "proxies" to vote or seek to advise or influence in any manner\nwhatsoever any person or entity with respect to the voting of any securities of the Participant, or whether alone or in concert with others, to\nseek to control, change or influence the management, Board of Directors or policies of the Participant, or nominate any person as a Director\nof\nthe Participant, or propose any matter to be voted upon by the stockholders of the Participant; (e) request the Participant (or any of its\nRepresentatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (f), except as may\notherwise be required by law rule or regulation, take any action that might be reasonably expected to require the Participant to make a public\nannouncement regarding a possible transaction.\n22. This Agreement will terminate and no longer be of any force or effect two (2) years from the Effective Date.\nXEROX CORPORATION\nPARTICIPANT\nBy:\n/s/ Lawrence A. Zimmerman\nBy:\n/s/ Lawrence Paine\nName:\nLawrence A. Zimmerman\nName:\nLawrence Paine\nTitle:\nSenior Vice President and CFO\nTitle:\nSenior Vice President and General Counsel\nAddress:\n800 Long Ridge Road\nAddress:\n3820 North dale Blvd.\nCity, State, Zip:\nStamford, CT 06904\nCity, State, Zip:\nTampa, FL 33624\nDate:\n2/15/07\nDate:\n2/15/07	EX-99.E .25 14 dex99e25.htm MUTUAL NONDISCLOSURE AGREEMENT BETWEEN THE COMPANY &\nXEROX\nExhibit (e)(25)\nMutual Non-Disclosure Agreement\nMutual Non-Disclosure Agreement by and between Xerox Corporation, a New York corporation (“Xerox”) and Global Imaging Systems, Inc., a\nDelaware corporation (“Participant”). In order to explore the possibility of entering into a business relationship (which relationship may take one or\nmore of many forms including, without limitation, joint venture, partnership, investment, equity or asset acquisition, supply agreement or services\nagreement), Xerox and Participant wish to exchange and protect certain confidential information (as defined below). Therefore, Xerox, for itself and\nits subsidiaries and affiliates, and Participant, for itself and its subsidiaries and affiliates, (Xerox and Participant are hereinafter each individually\nreferred to as a “Party” and collectively referred to as the “Parties”) agree that:\n1. The effective date of this non-disclosure agreement (this “Agreement”) is February 12, 2007 (the “Effective Date”).\n2.\n“Confidential Information” shall mean all business information of a Discloser (as defined below) that is disclosed or furnished after the\nEffective Date to a Recipient (as defined below) or its Representative (as defined below) by or on behalf of a Discloser, whether in written,\noral, electronic, Web site-based or other form, and includes any copies, reports, analyses, compilations, studies, notes. Interpretations or other\ndocuments prepared by a Recipient which contain, otherwise reflect or are generated from such information. Confidential Information\nincludes, but is not limited to, customer and vendor-related data, services/support information, and information about products, strategies and\nplans. This Agreement also includes Confidential Information acquired during any facilities tours.\n3. The Confidential Information shall be kept confidential and a Recipient shall not disclose any of the Confidential Information in any manner\nwhatsoever; provided, however, that the Recipient may disclose the Confidential Information only to those of the Recipient’s Representatives\nwho need to know such information for the sole purpose of evaluating a Potential Transaction (as defined below), who agree to keep such\ninformation confidential and who will be bound by the terms hereof to the same extent as if they were parties hereto. In any event, the\nRecipient shall be responsible for any failure to comply with the terms of this Agreement by any of its Representatives and the Recipient\nagrees, at its sole expense, to take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of\nthe Confidential Information. “Representative” shall mean, as to any Party, such Party’s directors, officers, members, partners, employees,\nagents, advisors (including financial advisors, legal counsel and accountants) and controlling persons.\n4. Additionally, without the prior written consent of the Discloser, the Recipients and their Representatives shall not disclose to any other person\nthat the Confidential Information has been made available to the Recipients, that meetings, discussions or negotiations have taken, are taking\nor will take place between the Parties concerning a Potential Transaction or any of the terms, conditions or other matters discussed with respect\nthereto (including the status thereof), except as may be required by law.\n5. The Parties receiving Confidential Information (each, a “Recipient”) from the other Parties disclosing Confidential Information (each, a\n“Discloser”) will use the Confidential Information solely for the purpose of evaluating or undertaking a possible business relationship with or\nregarding the other Party (a “Potential Transaction”), and not for the purpose of forming, operating or participating in a competitive venture or\nany other purpose. A Recipient shall not intentionally use the Confidential Information in any way directly or indirectly detrimental to a\nDiscloser. In particular, each Recipient agrees that the Recipient shall not knowingly, use Confidential Information to divert or attempt to\ndivert any business or customer of a Discloser, or use any such knowledge of information competitively against a Discloser.\n6. Each Party and its respective Representatives will arrange for appropriate contacts for due diligence purposes. It is further understood and\nagreed that all (i) communications regarding the Potential Transaction and (ii) requests for additional information, will be submitted or directed\nexclusively to Christopher Tipton on behalf of Xerox or Lawrence Paine on behalf of Participant, and that neither Party, nor any of their\nrespective Representatives, will initiate or cause to be initiated any communication with any Representative of the other Party (other than as\nprovided herein) concerning the Confidential Information or the Potential Transaction.\n7. Each Party agrees that, (i) each Party shall be free to terminate the other Party’s and such other Party’s Representatives’ access to the\nConfidential Information at any time and to conduct the process for the Potential Transaction as it in its sole discretion shall determine\n(including, without limitation, negotiating with any person and entering into definitive agreements without prior notice to the other Party or\nany other person), (ii) any procedures relating to the Potential Transaction may be changed at any time without notice to the other Party or any\nother person and (iii) each Party shall have the right to reject or accept any potential proposal or offer, for any reason whatsoever, in its sole\ndiscretion and to terminate discussions and negotiations with the other party at any time. Notwithstanding the termination of discussions\nregarding a Potential Transaction, the provisions of this Agreement and the obligations created under it shall survive.\n8. Unless the Parties otherwise agree in writing, a Recipient’s duty to protect Confidential Information expires two years from the Effective Date.\nA Recipient will use the same degree of care, but no less than a reasonable degree of care, as the Recipient uses with respect to its own similar\ninformation to protect the Confidential Information and to prevent (a) any use of Confidential Information not authorized in this Agreement,\n(b) dissemination of Confidential Information to any employee of Recipient without a need to know, (c) communication of Confidential\nInformation to any third party or (d) publication of Confidential Information.\n9. If either Party determines that it does not wish to proceed with a Potential Transaction, it will promptly inform the other Party of that decision.\nAt any time upon the request of any Discloser for any reason, each Recipient will promptly deliver to the Discloser all Confidential\nInformation furnished in tangible form to the Recipient or its Representatives by or on behalf of the Discloser pursuant hereto, will destroy all\ncopies, extracts or other reproductions thereof, whether in paper, electronic or other format or media, and no copy, extract or other reproduction\nof any Confidential Information shall be retained, whether in paper, electronic or other format or media, by any Recipient or its\nRepresentatives. Notwithstanding the return of the Confidential Information, each Recipient and its Representatives will continue to be bound\nby their obligations of confidentiality and other obligations hereunder.\n10. This Agreement imposes no obligation upon a Recipient with respect to Confidential Information which (a) the Recipient can demonstrate was\nalready in its possession before receipt from the Discloser; (b) is or becomes publicly available through no fault of the Recipient in violation of\nthis Agreement; (c) is rightfully received by the Recipient from a third party not known by the Recipient to be subject to a duty\nof confidentiality to the Discloser; (d) is independently developed by the Recipient without reference to any Confidential Information disclosed\nby the Discloser and without a breach of this Agreement; (e) is disclosed under operation of law; or (f) is disclosed by the Recipient with the\nDiscloser’s prior written approval. Further, for purposes of this Agreement, Confidential Information shall be limited to information of a\nbusiness nature and the term Confidential Information shall not include proprietary technical information of a party, including confidential\nprocesses, formulations, designs, source code or other information that would otherwise be considered technical in nature or that could be used\nin the creation of a product, solution or business process. It being expressly understood that such proprietary technical information is not\nsubject to the confidentiality obligations set forth in this Agreement. The parties acknowledge that in the future they may execute and deliver a\nseparate confidential disclosure agreement relating to proprietary technical information. If a Recipient is required by a government body or\ncourt of law to disclose Confidential Information, the Recipient agrees to give the Discloser prompt written notice so that Discloser may\ncontest the disclosure or seek a protective order. If, in the absence of a protective order or other remedy or the receipt of a waiver by the\nDiscloser, the Recipient is, in its reasonable opinion legally compelled to disclose Confidential Information to any tribunal or else stand liable\nfor contempt or suffer other censure or penalty, the Recipient may disclose only that portion of the Confidential Information which it\nreasonably believes is legally required to be disclosed, provided that the Recipient exercises its reasonable efforts to preserve the\nconfidentiality of the Confidential Information, including by cooperating with the Discloser, at the Discloser’s expense, to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such\ntribunal. The terms of confidentiality under this Agreement shall not be construed to limit a Recipient’s right to independently develop or\nacquire products or technologies without use of the Confidential Information. Each Discloser acknowledges that each Recipient may currently\nor in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential\nInformation. Accordingly, nothing in this Agreement will be construed as a representation or agreement that a Recipient will not develop or\nhave developed for it products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or\ntechniques contemplated by or embodied in the Confidential Information provided that such Recipient does not violate any of its obligations\nunder this Agreement in connection with such development. Further, each Recipient shall be permitted to use the Residuals related to its\ncurrent or future business activities, which result from access to or work with such Confidential Information, provided that each Recipient shall\nmaintain the confidentiality of the Confidential Information as provided herein, and such use shall not be for the purposes of reverse\nengineering. The term “Residuals” means any and all Confidential Information in intangible form that may be retained in the “unaided”\nmemory of a person having access to that information, including ideas, concepts, know-how or techniques contained therein. For purposes of\nthis Section a person’s memory is considered to be “unaided” if the person has not intentionally memorized or set down intangible form, the\nConfidential Information for the purpose of retaining and subsequently using or disclosing it. Each Recipient’s use of such Residuals remains\nsubject to valid copyrights, patents and trade secret rights of each Discloser. Each Recipient shall not have any obligation to limit or restrict the\nassignment of such persons or to pay royalties for any work resulting from the use of Residuals that is not in violation of the terms of this\nAgreement.\n11. NO WARRANTIES ARE MADE AND NO RESPONSIBILITY OR LIABILITY IS OR WILL BE ACCEPTED BY EITHER PARTY\nIN RELATION TO OR AS TO THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL INFORMATION OR IN\nRELATION TO OR RESULTING FROM THE USE OF THE CONFIDENTIAL INFORMATION. ALL CONFIDENTIAL\nINFORMATION IS PROVIDED “AS IS.”\nEach Party agrees that it is not entitled to rely on the accuracy or completeness of any Confidential Information and that it shall be entitled to\nrely solely on such representations or warranties regarding Confidential Information as may be made in any definitive agreement relating to the\nPotential Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein.\n12. No Party acquires any intellectual property rights under this Agreement except the limited rights necessary to carry out the purposes as set\nforth in this Agreement.\n13. Except as provided in a definitive agreement relating to a Potential Transaction, from the Effective Date and for a period ending one year from\nthe date on which the Parties have terminated discussions concerning a Potential Transaction, each Party agrees not to, either directly or\nthrough others, solicit, initiate discussions with or attempt to solicit for employment any present officer or management employee of the other\nParty with whom it has contact, or who becomes known to it, during the discussions concerning a Potential Transaction (other than persons\nwho no longer are officers, employees, consultants or independent contractors of such other Party at the time discussions are terminated) to\nterminate his or her relationship with the other Party, provided, however, that the foregoing restriction shall not apply to any such officer or\nemployee who (a) responds to a general solicitation for employment contained in a newspaper, trade publication or other periodical, or\n(b) responds to a general solicitation for employment by a recruiter who is making solicitations for a Party or its Representatives generally, so\nlong as such solicitation is not directly or indirectly directed by any of such Party’s or its Representative’s personnel who is aware of this\nAgreement and/or the fact that the Parties are exploring a Potential Transaction with each other. Notwithstanding the foregoing, no person\nemployed by a Party shall in any way directly or indirectly use the information contained in the Confidential Information to solicit for\nemployment any employee of the other Party or any of its subsidiaries with whom it has had contact or who became known to it in connection\nwith the consideration of a Potential Transaction. The foregoing notwithstanding, Xerox agrees that for a period of twelve (12) months from\nthe date hereof, neither Xerox nor any of its affiliates will (or assist or encourage others to), directly or indirectly, solicit for employment or\nemploy any of the persons listed on the attached Schedule A.\n14. Each Party acknowledges that money damages for improper disclosure of Confidential Information or other breach of this Agreement would\nnot be a sufficient remedy; therefore, the injured Party shall be entitled to equitable relief, including Injunction, preliminary Injunction and\nspecific performance, in addition to all other remedies available at law or in equity.\n15. The obligations and duties imposed by this Agreement with respect to any Confidential Information may be enforced by the Discloser of such\nConfidential Information against any and all Recipients of such Confidential Information.\n16. This Agreement is made under, and will be construed according to, the laws of the State of Delaware, USA.\n17. If any provision of this Agreement is found to be invalid or unenforceable in whole or in part, the Parties agree the remaining provisions of this\nAgreement shall remain valid and enforceable to the maximum extent compatible with existing law.\n18. This Agreement does not create any agency or partnership relationship. Each Party understands and agrees that no commitment, contract or\nagreement providing for a Potential Transaction shall be deemed to exist unless and until a final definitive agreement has been executed and\ndelivered, and each Party hereby waives, in advance, any claims (including claims of breach of contract) in connection with a Potential\nTransaction (except for claims under this Agreement) unless and until the Parties shall have entered into a final definitive agreement with\nrespect thereto. Each Party also agrees that unless and until a definitive agreement between the Parties with respect to any Potential\nTransaction has been executed and delivered, neither Party is under any legal obligation of any kind whatsoever with respect to a Potential\nTransaction except for the matters specifically agreed to in this Agreement. This Agreement contains the entire agreement between the Parties\nconcerning the matters referred to herein.\n19. This Agreement will not be assignable or transferable without the prior written consent of the other Party. All additions or modifications to this\nAgreement must be made in writing and must be signed by all Parties. No failure or delay by either Party in exercising any right, power or\nprivilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise\nthereof or the exercise of any other right, power or privilege hereunder.\n20. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but together shall constitute the same\ninstrument. Each Party agrees that facsimile signatures will have the same legal effect as originals signatures and may be used as evidence of\nexecution.\n21. Xerox hereby acknowledges that the Confidential Material is being furnished to it in consideration of its agreement that, unless otherwise\nagreed in writing by the Participant, for a period of twelve (12) months from the date hereof neither Xerox nor any of its affiliates will\n(a) propose or announce any intention to propose to the Participant or any other person any transaction between Xerox and/or its affiliates and\nthe Participant and/or its security holders or involving any of the Participant’s securities or security holders; (b) acquire or assist, advise or\nencourage any other persons in acquiring, directly or indirectly, control of the Participant or any of the Participant’s securities (or beneficial\nownership thereof, or rights or options to acquire any such securities) constituting 5% or more of a class of equity securities of Participant,\nbusinesses or assets: (c) directly or indirectly, form, join or in any way participate in a third party “group” (or discuss with any third party the\npotential formation of a group) with respect to any potential acquisition or other strategic transaction involving all or a portion of the assets or\nsecurities of the Participant; (d) make, or participate in, any “solicitation” of “proxies” to vote or seek to advise or influence in any manner\nwhatsoever any person or entity with respect to the voting of any securities of the Participant, or whether alone or in concert with others, to\nseek to control, change or influence the management, Board of Directors or policies of the Participant, or nominate any person as a Director of\nthe Participant, or propose any matter to be voted upon by the stockholders of the Participant; (e) request the Participant (or any of its\nRepresentatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (f), except as may\notherwise be required by law rule or regulation, take any action that might be reasonably expected to require the Participant to make a public\nannouncement regarding a possible transaction.\n22. This Agreement will terminate and no longer be of any force or effect two (2) years from the Effective Date.\nXEROX CORPORATION\nPARTICIPANT\nBy:\n/s/ Lawrence A. Zimmerman\nBy:\n/s/ Lawrence Paine\nName:\nLawrence A. Zimmerman\nName:\nLawrence Paine\nTitle:\nSenior Vice President and CFO\nTitle:\nSenior Vice President and General Counsel\nAddress:\n800 Long Ridge Road\nAddress:\n3820 North dale Blvd.\nCity, State, Zip: Stamford, CT 06904\nCity, State, Zip: Tampa, FL 33624\nDate:\n2/15/07\nDate:\n2/15/07
+46b766a3ff00cb8bd64a014cd65d7db2.pdf	jurisdiction	Exhibit 10.17\nFORM OF NON-COMPETITION, NON-SOLICITATION\nAND NON-DISCLOSURE AGREEMENT\n[For Bernard D. Berman, Ivelin M. Dimitrov, Alexander C. Frank and Todd G. Owens]\nThis Non-Competition, Non-Solicitation and Non-Disclosure Agreement (“Agreement”) is entered into between\n[NAME] (“Employee”) and FSC CT, Inc. (“Fifth Street”), a Connecticut corporation, as of the [__] day of [MONTH], 2014.\nIn this Agreement, Employee and Fifth Street are collectively referred to as the “parties”. The term “Company” as used in\nthis Agreement includes Fifth Street and all direct and indirect subsidiaries and affiliates of Fifth Street, including, without\nlimitation, Fifth Street Management LLC (the “Advisor”), Fifth Street Asset Management Inc. (“FSAM”), Fifth Street\nHoldings, L.P ., Fifth Street Finance Corp. (the “BDC”), Fifth Street Senior Floating Rate Corp. (the “BDC II”), Fifth Street\nSenior Loan Fund I Operating Entity, LLC, Fifth Street Senior Loan Fund II Operating Entity, LLC, Fifth Street Credit\nOpportunities Fund, L.P ., Fifth Street Mezzanine Partners II, L.P ., Fifth Street Capital LLC, Fifth Street Capital West, Inc.,\nFSC, Inc., FSC Midwest, Inc. and any entities formed after the date hereof which engage the Company to provide\nservices, and any affiliates of Fifth Street formed after the date hereof.\n1.\nConsideration. Employee acknowledges that he has been advised by Fifth Street that the restrictions\nand covenants contained in this Agreement, and Employee's agreement to such terms, are of the essence to this\nAgreement and constitute a material inducement to Fifth Street (i) to enter into this Agreement (including, without\nlimitation, agreeing to the terms of Section 2) for the benefit of the Company, and (ii) to employ Employee [FOR\nMESSRS. BERMAN, DIMITROV AND FRANK: on the terms set forth in the Letter Agreement between the Employee\nand Fifth Street, dated as of [____], 2014 (the “Letter Agreement”)]. Employee acknowledges that the Company will not\nemploy Employee without Employee’s agreement to comply with the restrictions and covenants contained in this\nAgreement and without Employee’s execution of this Agreement. Employee acknowledges and agrees that the\nCompany’s providing employment to Employee is full and complete consideration for the promises and agreements\nmade by Employee herein.\n2.\nNon-Compete.\n(a)\nNon-Competition Period. As used in this Agreement, the term “Non-Competition Period” shall mean the\nperiod of Employee's employment with the Company and the one-year period commencing on the date that Employee’s\nemployment with the Company terminates, regardless of the reason for such termination and regardless of whether the\ntermination was voluntary or involuntary (or the three (3) month period commencing on the date that (i) Employee’s\nemployment with the Company is terminated by the Company other than for “Cause” (as defined in Exhibit A) within\nninety (90) days prior to a “Change in Control” (as defined in Section (4) below), or (ii) Employee’s employment is\nterminated at any time on or after a “Change in Control” (as defined in Section (4) below)); provided that in the event of a\ntermination of Employee’s employment for any reason other than for Cause (as defined on Exhibit A), the Company shall,\nsubject to the following conditions, pay Employee during the Non-Competition Period the sum of (i) his base salary (or a\npro rata portion, if the Non-Competition Period is less than one year in duration), pursuant to the Company’s customary\npayroll policies, plus (ii) [FOR MR. OWENS ONLY: a bonus (or a pro rata portion, if the Non-Competition Period is less\nthan one year in duration) equal to the average of the discretionary bonuses received by Employee over the preceding\ntwo years (but no less than $1.5 million with respect to any termination in 2014 or 2015]/[FOR MESSRS. BERMAN,\nDIMITROV AND FRANK: a bonus (or a pro rata portion, if the Non-Competition Period is less than one year in duration)\nequal to the average of the discretionary bonuses received by Employee over the preceding two years]; [FOR MESSRS.\nBERMAN, DIMITROV AND FRANK: provided, further, that solely in the event of a termination of Employee’s\nemployment by the Company without Cause or by the Employee for Good Reason, Employee shall be entitled to\naccelerated vesting of Options and RSUs as provided for in Annex A to the Letter Agreement]; provided that (I) the\ncommencement of the foregoing payments are conditioned on the effectiveness (i.e., the expiration of any applicable\nrevocation period without a revocation by Employee) of a release and waiver of all claims (the “Release”) by Employee,\nin the form attached as exhibit B to the Letter Agreement [FOR MR. OWEN ONLY: in the form attached as Exhibit B to\nthe Offer Letter from Fifth Street to Employee dated as of [_____], 2014 (the “Amended Offer Letter”)], within 30 days\nfrom the date of termination; (II) the foregoing payments are conditioned on Employee’s full compliance in all respects\nwith the post-termination obligations set forth in this Agreement, (III) the post-termination obligations of Employee under\nthis Agreement shall remain in full force and effect, and Employee shall remain bound in full by such obligations,\nregardless of whether Employee elects to accept payment of such amounts, (IV) if the Company, in its sole discretion,\nwaives compliance with Section 2(a) of the Agreement in writing, the payments provided for in sub-clauses (a)(i) and (ii)\nshall no longer be paid from and after the effective date of such waiver (it being understood that no such waiver shall\naffect the Company’s payment obligations under [the Letter Agreement]/[FOR MR. OWENS ONLY: the Amended Offer\nLetter] and in the event of such a waiver, the other covenants contained in this Agreement shall not be affected and will\ncontinue in full force and effect in accordance with the terms of this Agreement), [and] (V) if the termination occurs within\n90 days prior to, or at any time on or after a “Change in Control” (as defined in Section (4) below) the payment shall equal\nthree (3) months of base salary and a pro rata portion of the applicable bonus equal to three (3) months [and FOR MR.\nOWENS ONLY: (VI) any payment obligations under this Agreement shall be reduced by all post-termination separation\npayments paid to the Employee under the Letter Agreement]. Employee covenants, during the one year period following\nthe termination of his employment, to provide to the Company, as promptly as reasonably practicable prior to\ncommencing employment, with advance written notice of the name of his new employer. For purposes of this Agreement,\n“base salary” shall mean an amount equal to the highest base salary ever paid to Employee during his employment by\nthe Company.\n2\n(b)\nNon-Competition. In order to protect the Company’s Confidential or Protected Information, Employee\nagrees that, during the Non-Competition Period, Employee shall not, directly or indirectly, own, manage, operate, control\nor participate in the ownership, management, operation or control of, or be connected as an officer, employee, director,\nconsultant, advisor, agent, independent contractor, partner, member, stockholder, trustee, or otherwise with, or have any\nfinancial interests in, or aid or assist anyone else in the conduct of, or in any other capacity be engaged directly or\nindirectly in, any entity or business (i) that is in competition with the Company's business of arranging and/or providing\nfinancing solutions to sponsor-led, middle market acquisitions or (ii) that is in competition with any other type of business\nin which the Company is also engaged, or plans to be engaged (each, a “Competitive Business”). The ownership of less\nthan two percent (2%) of any class of the outstanding securities of any corporation whose shares are traded on a U.S .\nnational securities exchange or quoted on The Nasdaq Stock Market, even though such corporation may be a\nCompetitive Business, shall not be deemed to constitute an interest in such competitor which violates this paragraph.\nFollowing the termination of Employee’s employment, the foregoing shall not prevent Employee from providing services\nto any enterprise engaged in a Competitive Business to the extent that such services, or any supervisory responsibility of\nEmployee associated with such position, are related only to the products or lines of business of such entity which,\nstanding alone, would not constitute a Competitive Business, so long as the portion of the enterprise that is a Competitive\nBusiness does not represent more than fifty percent (50%) of the revenues of such enterprise at any time.\n(c)\nTiming of Payments. The payments described in Section 2(a) above shall be paid, minus applicable\ndeductions, including deductions for tax withholding, in equal payments on the regular payroll dates during the\nNon-Competition Period following Employee’s termination of employment. Commencement of payments described in\nSection 2(a) shall begin on the payroll date within 30 days of the effective date of the Release. The first payment shall\ninclude those payments that would have previously been paid if the payments described in Section 2(a) had begun on\nthe first payroll date following Employee’s termination of employment. This timing of the commencement of payments is\nsubject to Section 22 below and Annex D to the Letter Agreement.\n(d)\nFor purposes of this Agreement, “termination of employment” shall mean a “separation of service” as\ndefined in Section 409A of the Internal Revenue Code of 1986, as amended, (the “Code”) and Treasury Regulations\nSection 1.409A-1(h) without regard to the optional alternative definitions available thereunder.\n(e)\nThe payments described in Section 2(a) shall be treated as a series of separate payments for purposes\nof Section 409A of the Code.\n(f)\nAny amounts payable to Employee by the Company under this Agreement or under any other plan or\narrangement of the Company which are subject to Section 409A and are conditioned upon execution of a waiver and\nrelease that may be executed and/or revoked in a calendar year following the calendar year in which the payment event\n(such as termination of employment) occurs shall commence payment only in such following calendar year, to the extent\nnecessary to comply with Section 409A.\n3\n3.\nNon-Solicitation Covenants.\n(a)\nRestricted Period.\ni.\nAs used in this Agreement, the term “Investor Restricted Period” shall mean (x) the term of Employee's\nemployment with the Company, and (y) (I) the one-year period commencing on the date that\nEmployee's employment with the Company terminates, regardless of the reason for such termination\nand regardless of whether the termination was voluntary or involuntary, or, if applicable, (II) the six (6)\nmonth period commencing on the date that Employee’s employment with the Company terminates,\nprovided that (i) such termination was by the Company other than for “Cause” (as defined in Exhibit A)\nand was within ninety (90) days prior to a “Change in Control” (as defined in Section (4) below) or (ii)\nsuch termination was on or after a “Change in Control” (as defined in Section (4) below).\nii.\nAs used in this Agreement, the term “Customer Restricted Period” shall mean (x) the term of\nEmployee's employment with the Company, and (y) (I) the one-year period commencing on the date\nthat Employee's employment with the Company terminates, regardless of the reason for such\ntermination and regardless of whether the termination was voluntary or involuntary, or, if applicable, (II)\nthe six (6) month period commencing on the date that Employee’s employment with the Company\nterminates, provided that (i) such termination was by the Company other than for “Cause” (as defined\nin Exhibit A) and was within ninety (90) days prior to a “Change in Control” (as defined in Section (4)\nbelow) or (ii) such termination was on or after a “Change in Control” (as defined in Section (4) below).\niii.\nAs used in this Agreement, the term “Employee Restricted Period” shall mean (x) the term of\nEmployee's employment with the Company, and (y) (I) the two-year period commencing on the date\nthat Employee's employment with the Company terminates, regardless of the reason for such\ntermination and regardless of whether the termination was voluntary or involuntary, or, if applicable, (II)\nthe six (6) month period commencing on the date that Employee’s employment with the Company\nterminates, provided that (i) such termination was by the Company other than for “Cause” (as defined\nin Exhibit A) and was within ninety (90) days prior to a “Change in Control” (as defined in Section (4)\nbelow) or (ii) such termination was on or after a “Change in Control” (as defined in Section (4) below).\n(b)\nNon-Solicitation of Investors. Employee agrees that, during the Investor Restricted Period, Employee\nshall not, directly or indirectly, for himself or for any person or entity other than the Company: (i) solicit or accept any\ninvestment from any person or entity that was an Investor, at any time prior to the termination of Employee's employment\nwith the Company; (ii) induce or influence any such Investor to discontinue, modify, or reduce its business relationship\nwith the Company; or (iii) assist or cause any person or entity to engage in any of the actions in which Employee has\nagreed not to engage under this paragraph. The term “Investor” means investors (and their affiliates) that did business\nwith the Company, or any account, fund or other entity for which the Advisor or any affiliate of the Advisor provided\ninvestment advisory or management services at any time during Employee's employment and all potential investors\nwhich, as of the last day of Employee's employment, the Company was soliciting or marketing (including, without\nlimitation, any potential investor (or affiliate thereof) to which the Company delivered a PPM or similar offering\nmemorandum within the 2 years preceding the termination of Employee's employment). Notwithstanding the foregoing,\nno person shall be deemed to be an Investor solely based on the fact that such person is or was a stockholder of the\nBDC or BDC II.\n4\n(c)\nNon-Solicitation of Customers. Employee agrees that, during the Customer Restricted Period, Employee\nshall not, directly or indirectly, for himself or for any person or entity other than the Company: (i) solicit business (unless\nsuch business is noncompetitive to the Company's business) from any customer or client of the Company (a “Covered\nCustomer”); (ii) induce or influence any Covered Customer to discontinue, modify, or reduce its business relationship with\nthe Company; (iii) solicit, induce or influence any entity to not accept a written term sheet or commitment letter that was\nissued in the six months prior to Employee's termination from the Company or discontinue a loan arrangement with the\nCompany that that was in existence at the time of Employee's termination; or (iv) assist or cause any person or entity to\nengage in any of the actions in which Employee has agreed not to engage under this paragraph.\n(d)\nNon-Solicitation of Employees. Employee agrees that, during the Employee Restricted Period, Employee\nshall not, directly or indirectly, for himself or for any person or entity other than the Company: (i) induce, encourage, or\nsolicit any individual who is employed by the Company as of the date of Employee's termination of employment, or within\none year prior thereto, to leave such employment or to become employed by or provide services to any person or entity\nother than the Company, or (ii) assist or cause any person or entity to engage in any of the actions in which Employee\nhas agreed not to engage under this paragraph.\n4.\nDefinition of “Change in Control”. As used in this Agreement, the term “Change in Control” shall mean\nthat Leonard Tannenbaum and his affiliated entities collectively cease to have beneficial voting control of FSAM (or, if an\nIPO has not occurred, of Fifth Street Holdings, LP).\n5.\nConfidential or Protected Information. As used in this Agreement, “Confidential or Protected\nInformation” means:\n(a)\nconfidential, proprietary or trade secret information (including, without limitation, all information as to\nwhich the Company has made efforts to maintain secrecy or that the law protects from disclosure) made available to\nEmployee, or to which Employee has access, or of which Employee becomes aware during his employment, including,\nwithout limitation, information related to investments made by the Company, information related to the Company's or any\nother entity's businesses, systems, operations, finances, investments, transactions, negotiations, claims, potential claims,\nsales, marketing, plans, pricing, customers, prospective customers, policies, practices, procedures, products, services,\nfinances, accounting practices or procedures, financial or investment performance (including, without limitation, any\n“track record” data or information), return on investment or capital, internal rate of return (“IRR”), relationships with third\nparties, ownership, investors, partners, employees, and management, as well as the Company's or any other entity's\nsoftware (in any stage of development), programs (whether or not in final form), ideas, inventions, concepts, formulas,\nmethods, development, research, designs, drawings, schematics, specifications, techniques, models, data, source code,\nobject code, flow diagrams, and documentation; and\n5\n(b)\nall information concerning any Inventions or Copyright Works. The term “Invention” means any new or\nuseful art, discovery, contribution, finding, or improvement, whether or not patentable. The term “Copyright Works”\nmeans materials for which copyright protection may be obtained, including, but not limited to, computer programs, artistic\nworks (including designs, graphs, drawings, blueprints and other works), literary works, recordings, photographs, slides,\nmotion pictures, and audiovisual works.\nThe forgoing description of “Confidential or Protected Information” includes all such information in any and all\nforms, whether written, oral, on a computer, tape, chip, or disk, whether prepared by Employee, by the Company, or by\nothers, whether or not fixed in tangible form, and includes all originals, summaries, portions, and copies of any and all\nsuch information.\n6.\nNondisclosure of Confidential or Protected Information. Except as provided below in Paragraph 7,\nEmployee agrees that during Employee's employment with the Company and after Employee's employment with the\nCompany terminates, regardless of why such employment terminated and regardless of whether the termination was\nvoluntary or involuntary, Employee will not disclose to anyone, publish, sell, assign, license, or attempt to do so, and will\nnot use for Employee's own personal benefit or the benefit of anyone other than the Company, whether directly or\nindirectly, any Confidential or Protected Information. Employee also agrees to:\n(a)\nmaintain in a confidential and protected manner all Confidential or Protected Information;\n(b)\ntake all reasonable steps to ensure that persons and entities working for and with Employee maintain in\na confidential and protected manner all Confidential or Protected Information;\n(c)\ntake all reasonable steps to prevent unauthorized persons and entities from obtaining, disseminating, or\nusing Confidential or Protected Information; and\n(d)\npromptly report to the Chief Executive Officer of Fifth Street whenever Employee learns it is likely that\nany unauthorized person or entity seeks or plans to obtain, disseminate, or use any Confidential or Protected Information.\n6\n7.\nExceptions. The restrictions relating to Confidential or Protected Information set forth in Paragraph 6\nabove do not apply:\n(a)\nwhere such disclosure or use is necessary for Employee to faithfully perform his duties as an employee\nfor the Company or for other employees to faithfully perform their duties for the Company;\n(b)\nto information which is now or hereafter becomes known or generally available to the public at large,\nexcept if such knowledge results from a breach of this Agreement or another obligation of confidentiality owed to the\nCompany;\n(c)\nwhere Employee has the prior written permission of the Chief Executive Officer of Fifth Street;\n(d)\nwhere necessary to comply with any legal obligation applicable to Employee; provided, however, that\nbefore disclosing or permitting disclosure of any Confidential or Protected Information pursuant to a legal obligation,\nEmployee agrees to (i) promptly notify the Chief Executive Officer of Fifth Street of the legal obligation that Employee\nbelieves requires that he make or permit such disclosure, and (ii) delay, if and to the extent lawful to do so, making such\ndisclosure to afford the Company a reasonable opportunity to oppose disclosure, or restrict, limit or condition such\ndisclosure.\n8.\nIntellectual Property.\n(a) Ownership of Confidential or Protected Information, Inventions, and Copyright Works. Upon conception,\nall Confidential or Protected Information, Inventions, and Copyright Works shall become the exclusive property of Fifth\nStreet whether or not patent or copyright applications are filed on the subject matter of the conception.\n(b) Rights in Copyrights. Unless otherwise agreed in writing by the Chief Executive Officer of Fifth Street,\noriginal works of authorship fixed in any tangible form that are or were prepared by Employee (alone or jointly with\nothers) within the scope of Employee's employment with Fifth Street shall be deemed “works made for hire” under\ncopyright laws and shall be owned by Fifth Street. Employee understands that any sale, assignment, license, or release\nof such works can only be made by Fifth Street. Employee will do everything reasonably necessary to enable Fifth Street\nor its nominee to protect its rights in such works, including, without limitation, assigning the copyright and all rights,\nthroughout the world, in and to the work product to Fifth Street and hereby assigns to Fifth Street all such copyright and\nrights as of the date hereof.\n9.\nCompany's Property. Upon termination of Employee's employment with the Company, regardless of\nthe reason (whether voluntary or involuntary), Employee agrees immediately to surrender to Fifth Street all property of\nthe Company in Employee's possession, control, or custody, including, but not limited to, the equipment, computers,\nsoftware, credit cards, books, records, reports, files, manuals, literature, the work product of Employee and all other\nCompany employees and all property containing Confidential or Protected Information (including all originals, summaries,\nportions, and copies).\n7\n10.\nNondisparagement. Employee agrees that, during and at any time after Employee’s employment with\nthe Company, regardless of the reason (whether voluntary or involuntary), Employee will not, directly or indirectly,\nthrough any agent or affiliate, make any comments or criticisms (whether of a professional or personal nature) to any\nindividual or other third party or entity regarding the Company (or the terms of any agreement or arrangement of the\nCompany) or any of its respective affiliates, members, partners or employees, disparaging the business or reputation of\nthe Company or any of its affiliates, members, partners or employees.\n11.\nRemedies. Employee acknowledges and agrees that monetary damages may not be a sufficient\nremedy for any breach of this Agreement, including, without limitation, a breach of the covenants contained in\nParagraphs 2 and 3 or the unauthorized use or disclosure of Confidential or Protected Information, and that the Company\nshall be entitled, without waiving any other rights or remedies, to obtain injunctive or equitable relief as may be deemed\nproper by a court of competent jurisdiction, without obligation to post any bond. The periods of time during which\nEmployee is in violation of the covenants set forth in this Agreement shall be added to the Investor Restricted Period, the\nCustomer Restricted Period, the Employee Restricted Period and the Non-Competition Period, as applicable.\n12.\nReasonableness. Employee acknowledges and agrees that the restrictions contained in this\nAgreement are reasonable and will not prevent him from finding other employment if his employment with the Company\nends. Employee also acknowledges and agrees that if Employee uses the Company's confidential information, or\ncompetes with the Company in violation of the terms of this Agreement, that he will be causing the Company irreparable\nharm.\n13.\nSeverability; Revision by Court. The provisions of this Agreement shall be deemed severable and the\ninvalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If\nany provision in this Agreement is found by a court of competent jurisdiction to be unenforceable or unreasonable as\nwritten, Employee and Fifth Street hereby specifically and irrevocably authorize and request said court to revise the\nunenforceable or unreasonable provisions in a manner that shall result in the provision being enforceable while remaining\nas similar as legally possible to the purpose and intent of the original.\n14.\nEntire Agreement. This Agreement constitutes the entire agreement and understanding of the parties\nhereto with respect to the obligations addressed herein and supersedes all prior or contemporaneous oral or written\nagreements regarding the subject matter hereof.\n15.\nAmendments; Waivers. Any addition or modification to this Agreement, or waiver of any provision\nhereof, must be in writing and signed by the parties hereto.\n8\n16.\nSuccessors and Assigns. Employee understands and agrees that he cannot assign or otherwise\ntransfer any of his obligations under this Agreement. Employee understands and agrees that Fifth Street may, at its\noption, assign or transfer its rights under this Agreement to another organization or individual. Employee understands\nand agrees that if there is an assignment or transfer of Fifth Street's rights under this Agreement, then this Agreement will\ncontinue to be effective, will continue to bind Employee, and will inure to the benefit of the organization or individual to\nwhom the transfer or assignment is made.\n17.\nChoice of Law. This Agreement shall be governed by, construed, and enforced in accordance with the\nlaws of the State of Connecticut, excluding its conflicts of laws principles.\n18.\nJurisdiction. Any action or proceeding seeking to enforce any provision of, or based on any right\narising out of, this Agreement may be brought against either party only in the courts of the State of Connecticut located in\nFairfield County. Both parties hereby irrevocably consent to the jurisdiction of any such court in any such action or\nproceeding and waive any objection to venue laid in such courts.\n19.\nCounterparts. This Agreement may be executed in any number of counterparts, each of which shall be\ndeemed an original but all of which together shall constitute one and the same instrument. This Agreement may be\nexecuted by facsimile signature.\n20.\nEmployee's Acknowledgment of Voluntary Agreement. Employee acknowledges that he has\ncarefully read this Agreement, that he has had the opportunity to receive advice with respect to this Agreement by\ncounsel of his choice, that he understands its terms and its legal effect, and that Employee has entered into this\nAgreement voluntarily and not in reliance upon any promises or representations made by the Company other than those\nmade in this Agreement itself.\n21.\nNo Change in Status. Nothing contained in the Agreement shall affect or in any way change\nEmployee's at-will employment status.\n22.\nSection 409A.\n(a)\nPotential Six-Month Delay. Notwithstanding any other provisions of the Agreement, any payment that\nmay be provided under this Agreement that the Company reasonably determines is subject to Section 409A(a)(2)(B)(i) of\nthe Code shall not be paid or payment commenced until six (6) months after the date of Employee’s termination of\nemployment (or, if earlier, Employee’s death). On the earliest date on which such payments can be commenced without\nviolating the requirements of Section 409A(a)(2)(B)(i) of the Code, Employee shall be paid, in a single cash lump sum, an\namount equal to the aggregate amount of all payments delayed pursuant to the preceding sentence.\n9\n(b)\nSavings Clause. It is intended that any amounts payable under this Agreement shall either be exempt\nfrom or comply with Section 409A of the Code (including Treasury regulations and other published guidance related\nthereto) so as not to subject Employee to payment of any additional tax, penalty or interest imposed under Section 409A\nof the Code. The provisions of this Agreement shall be construed and interpreted to avoid the imputation of any such\nadditional tax, penalty or interest under Section 409A of the Code yet preserve (to the nearest extent reasonably\npossible) the intended benefit payable to Employee. Notwithstanding the foregoing, the Company makes no\nrepresentation or warranty and shall have no liability to Employee or to any other person if any of the provisions of this\nAgreement are determined to constitute deferred compensation subject to Section 409A, but that do not satisfy an\nexemption from, or the conditions of, that section.\n[Signature page follows]\n10\nBy signing below, the Company and Employee, intending to be legally bound, agree to the terms of this\nAgreement as listed and stated above.\nFSC CT, Inc.\nDated:\nBy:\nName:\nTitle:\nEmployee:\nDated:\n11\nEXHIBIT A\nAs used in this Agreement, “Cause” shall have the meaning ascribed to it in [the Letter Agreement]/[FOR MR.\nOWENS ONLY: the Amended Offer Letter].	Exhibit 10.17\nFORM OF NON-COMPETITION, NON-SOLICITATION\nAND NON-DISCLOSURE AGREEMENT\n[For Bernard D. Berman, lvelin M. Dimitrov, Alexander C. Frank and Todd G. Owens]\nThis Non-Competition, Non-Solicitation and Non-Disclosure Agreement (“Agreement”) is entered into between\n[NAME] (“Employee”) and FSC CT, Inc. (“Fifth Street”), a Connecticut corporation, as of the [__] day of [MONTH], 2014.\nIn this Agreement, Employee and Fifth Street are collectively referred to as the “parties”. The term “Company” as used in\nthis Agreement includes Fifth Street and all direct and indirect subsidiaries and affiliates of Fifth Street, including, without\nlimitation, Fifth Street Management LLC (the “Advisor”), Fifth StreetAsset Management Inc. (“FSAM”), Fifth Street\nHoldings, L.P., Fifth Street Finance Corp. (the w”), Fifth StreetSenior Floating Rate Corp. (the “BD_CII’), Fifth Street\nSenior Loan Fund I Operating Entity, LLC, Fifth Street Senior Loan Fund II Operating Entity, LLC, Fifth StreetCredit\nOpportunities Fund, L.P., Fifth Street Mezzanine Partners II, L.P., Fifth StreetCapitaI LLC, Fifth StreetCapitaI West, Inc.,\nFSC, Inc., FSC Midwest, Inc. and any entities formed after the date hereof which engage the Company to provide\nservices, and any affiliates of Fifth Streetformed after the date hereof.\n \n1. Consideration. Employee acknowledges that he has been advised by Fifth Street thatthe restrictions\nand covenants contained in this Agreement, and Employee's agreement to such terms, are ofthe essence to this\nAgreement and constitute a material inducement to Fifth Street (i) to enter into this Agreement (including, without\nlimitation, agreeing to the terms of Section 2) forthe benefit of the Company, and (ii) to employ Employee [FOR\nMESSRS. BERMAN, DIMITROV AND FRANK: on the terms set forth in the Letter Agreement between the Employee\nand Fifth Street, dated as of [____], 2014 (the “LetterAgreemen ”)1. Employee acknowledges that the Company will not\nemploy Employee without Employee's agreement to comply with the restrictions and covenants contained in this\nAgreement and without Employee's execution of this Agreement. Employee acknowledges and agrees thatthe\nCompany's providing employment to Employee is full and complete consideration forthe promises and agreements\nmade by Employee herein.\n2. Non-Compete.\nu\n(a) Non-Competition Period. As used in this Agreement, the term Non-Competition Period” shall mean the\nperiod of Employee's employment with the Company and the one-year period commencing on the date that Employee's\nemployment with the Company terminates, regardless of the reason for such termination and regardless of whether the\ntermination was voluntary or involuntary (or the three (3) month period commencing on the date that (i) Employee's\nemployment with the Company is terminated by the Company other than for “Cause” (as defined in Exhibit A) within\nninety (90) days prior to a “Change in Control” (as defined in Section (4) below), or (ii) Employee's employment is\nterminated at any time on or after a “C hange in Control” (as defined in Section (4) below)); provided that in the event of a\ntermination of Employee's employment for any reason other than for Cause (as defined on ExhibitA), the Company shall,\nsubject to the following conditions, pay Employee during the Non-Competition Period the sum of (i) his base salary (or a\npro rata portion, if the Non-Competition Period is less than one year in duration), pursuant to the Company's customary\npayroll policies, plus (ii) [FOR MR. OWENS ONLY: a bonus (or a pro rata portion, if the Non-Competition Period is less\nthan one year in duration) equal to the average of the discretionary bonuses received by Employee over the preceding\ntwo years (but no less than $1.5 million with respect to any termination in 2014 or 2015]/[FOR MESSRS. BERMAN,\nDIMITROV AND FRANK: a bonus (or a pro rata portion, if the Non-Competition Period is less than one year in duration)\nequal to the average ofthe discretionary bonuses received by Employee overthe preceding two years]; [FOR MESSRS.\nBERMAN, DIMITROV AND FRANK: provided, further, that solely in the event of a termination of Employee's\nemployment by the Company without Cause or by the Employee for Good Reason, Employee shall be entitled to\naccelerated vesting of Options and RSUs as provided for in Annex A to the Letter Agreement]; provided that (l) the\ncommencement of the foregoing payments are conditioned on the effectiveness (i.e., the expiration of any applicable\nrevocation period without a revocation by Employee) of a release and waiver of all claims (the “Release”) by Employee,\nin the form attached as exhibit B to the Letter Agreement [FOR MR. OWEN ONLY: in the form attached as Exhibit B to\nthe Offer Letter from Fifth Street to Employee dated as of[ _____ ], 2014 (the “Amended Offer Letter”)], within 30 days\nfrom the date of termination; (II) the foregoing payments are conditioned on Employee's full compliance in all respects\nwith the post-termination obligations set forth in this Agreement, (III) the post-termination obligations of Employee under\nthis Agreement shall remain in full force and effect, and Employee shall remain bound in full by such obligations,\nregardless of whether Employee elects to accept payment of such amounts, (IV) if the Company, in its sole discretion,\nwaives compliance with Section 2(a) of the Agreement in writing, the payments provided for in sub-clauses (a)(i) and (ii)\nshall no longer be paid from and after the effective date of such waiver (it being understood that no such waiver shall\naffect the Company's payment obligations under [the Letter Agreement]/[FOR MR. OWENS ONLY: the Amended Offer\nLetter] and in the event of such a waiver, the other covenants contained in this Agreement shall not be affected and will\ncontinue in full force and effect in accordance with the terms of this Agreement), [and] (V) if the termination occurs within\n90 days priorto, or atany time on or aftera “C hange in Control” (as defined in Section (4) below) the paymentshall equal\nthree (3) months of base salary and a pro rata portion of the applicable bonus equal to three (3) months [and FOR MR.\nOWENS ONLY: (VI) any payment obligations under this Agreement shall be reduced by all post-termination separation\npayments paid to the Employee under the Letter Agreement]. Employee covenants, during the one year period following\nthe termination of his employment, to provide to the Company, as promptly as reasonably practicable prior to\ncommencing employment, with advance written notice of the name of his new employer. For purposes of this Agreement,\n“base salary” shall mean an amount equal to the highest base salary ever paid to Employee during his employment by\nthe Company.\n \n(b) Non-Competition. In orderto protect the Company's Confidential or Protected Information, Employee\nagrees that, during the Non-Competition Period, Employee shall not, directly or indirectly, own, manage, operate, control\nor participate in the ownership, management, operation or control of, or be connected as an officer, employee, director,\nconsultant, advisor, agent, independent contractor, partner, member, stockholder, trustee, or otherwise with, or have any\nfinancial interests in, or aid or assist anyone else in the conduct of, or in any other capacity be engaged directly or\nindirectly in, any entity or business (i) that is in competition with the Company's business of arranging and/or providing\nfinancing solutions to sponsor-led, middle market acquisitions or (ii) that is in competition with any other type of business\nin which the Company is also engaged, or plans to be engaged (each, a “Competitive Business”). The ownership of less\nthan two percent (2%) ofany class of the outstanding securities ofany corporation whose shares are traded on a US.\nnational securities exchange or quoted on The Nasdaq Stock Market, even though such corporation may be a\nCompetitive Business, shall not be deemed to constitute an interest in such competitor which violates this paragraph.\nFollowing the termination of Employee's employment, the foregoing shall not prevent Employee from providing services\nto any enterprise engaged in a Competitive Business to the extent that such services, or any supervisory responsibility of\nEmployee associated with such position, are related only to the products or lines of business of such entity which,\nstanding alone, would notconstitute a Competitive Business, so long as the portion of the enterprise that is a Competitive\nBusiness does not represent more than fifty percent (50%) of the revenues of such enterprise at any time.\n(c) Timing of Payments. The payments described in Section 2(a) above shall be paid, minus applicable\ndeductions, including deductions for tax withholding, in equal payments on the regular payroll dates during the\nNon-Competition Period following Employee's termination of employment. Commencement of payments described in\nSection 2(a) shall begin on the payroll date within 30 days of the effective date of the Release. The first payment shall\ninclude those payments thatwould have previously been paid if the payments described in Section 2(a) had begun on\nthe first payroll date following Employee's termination of employment. This timing of the commencement of payments is\nsubjectto Section 22 below and Annex D to the Letter Agreement.\n(d) For purposes of this Agreement, “termination of employment” shall mean a “separation of service” as\ndefined in Section 409A ofthe Internal Revenue Code of 1986, as amended, (the “Code”) and Treasury Regulations\nSection 1.409A-1(h) without regard to the optional alternative definitions available thereunder.\n(e) The payments described in Section 2(a) shall be treated as a series ofseparate payments for purposes\nof Section 409A of the Code.\n(f) Any amounts payable to Employee by the Company underthis Agreement or under any other plan or\narrangement of the Company which are subjectto Section 409A and are conditioned upon execution of a waiver and\nrelease that may be executed and/or revoked in a calendar yearfollowing the calendar year in which the payment event\n(such as termination of employment) occurs shall commence payment only in such following calendar year, to the extent\nnecessary to comply with Section 409A.\n3. Non-Solicitation Covenants.\n(a) Restricted Period.\nAs used in this Agreement, the term “Investor Restricted Period” shall mean (x) the term of Employee's\nemployment with the Company, and (y) (I) the one-year period commencing on the date that\nEmployee's employment with the Company terminates, regardless of the reason for such termination\nand regardless of whetherthe termination was voluntary or involuntary, or, if applicable, (II) the six (6)\nmonth period commencing on the date that Employee's employment with the Company terminates,\nprovided that (i) such termination was by the Company other than for “Cause” (as defined in ExhibitA)\nand was within ninety (90) days prior to a “C hange in Control” (as defined in Section (4) below) or (ii)\nsuch termination was on or after a “C hange in Control” (as defined in Section (4) below).\nAs used in this Agreement, the term “Customer Restricted Period” shall mean (X) the term of\nEmployee's employment with the Company, and (y) (I) the one-year period commencing on the date\nthat Employee's employmentwith the Company terminates, regardless of the reason for such\ntermination and regardless of whetherthe termination was voluntary or involuntary, or, if applicable, (II)\nthe six (6) month period commencing on the date that Employee's employment with the Company\nterminates, provided that (i) such termination was by the Company otherthan for “Cause” (as defined\nin ExhibitA) and was within ninety (90) days prior to a “C hange in Control” (as defined in Section (4)\nbelow) or (ii) such termination was on or after a “C hange in Control” (as defined in Section (4) below).\nAs used in this Agreement, the term “E mployee Restricted Period” shall mean (X) the term of\nEmployee's employment with the Company, and (y) (I) the two-year period commencing on the date\nthat Employee's employmentwith the Company terminates, regardless of the reason for such\ntermination and regardless of whetherthe termination was voluntary or involuntary, or, if applicable, (II)\nthe six (6) month period commencing on the date that Employee's employment with the Company\nterminates, provided that (i) such termination was by the Company otherthan for “Cause” (as defined\nin ExhibitA) and was within ninety (90) days prior to a “C hange in Control” (as defined in Section (4)\nbelow) or (ii) such termination was on or after a “C hange in Control” (as defined in Section (4) below).\n(b) Non-Solicitation of Investors. Employee agrees that, during the Investor Restricted Period, Employee\nshall not, directly or indirectly, for himself or for any person or entity other than the Company: (i) solicit or accept any\ninvestment from any person or entity that was an Investor, at any time prior to the termination of E mployee's employment\nwith the Company; (ii) induce or influence any such Investorto discontinue, modify, or reduce its business relationship\nwith the Company; or (iii) assist or cause any person or entity to engage in any of the actions in which Employee has\nagreed not to engage under this paragraph. The term “Investor” means investors (and their affiliates) that did business\nwith the Company, or any account, fund or other entity for which the Advisor or any affiliate of the Advisor provided\ninvestment advisory or management services at any time during E mployee's employment and all potential investors\nwhich, as of the last day of Employee's employment, the Company was soliciting or marketing (including, without\nlimitation, any potential investor (or affiliate thereof) to which the Company delivered a PPM or similar offering\nmemorandum within the 2 years preceding the termination of Employee's employment). Notwithstanding the foregoing,\nno person shall be deemed to be an Investor solely based on the factthatsuch person is or was a stockholder of the\nBDC or BDC II.\n(c) Non-Solicitation of Customers. Employee agrees that, during the Customer Restricted Period, Employee\nshall not, directly or indirectly, for himself orfor any person or entity otherthan the Company: (i) solicit business (unless\nsuch business is noncompetitive to the Company's business) from any customer or client of the Company (a “C overed\nCustomer”); (ii) induce or influence any Covered Customerto discontinue, modify, or reduce its business relationship with\nthe Company; (iii) solicit, induce or influence any entity to not accept a written term sheet or commitment letterthat was\nissued in the six months prior to Employee's termination from the Company or discontinue a loan arrangement with the\nCompany thatthat was in existence atthe time of Employee's termination; or (iv) assist or cause any person or entity to\nengage in any of the actions in which Employee has agreed not to engage underthis paragraph.\n(d) Non-Solicitation of Employees. Employee agrees that, during the Employee Restricted Period, Employee\nshall not, directly or indirectly, for himself orfor any person or entity otherthan the Company: (i) induce, encourage, or\nsolicit any individual who is employed by the Company as of the date of Employee's termination of employment, or within\none year priorthereto, to leave such employment orto become employed by or provide services to any person or entity\notherthan the Company, or (ii) assist or cause any person or entity to engage in any of the actions in which Employee\nhas agreed not to engage underthis paragraph.\n4. Definition of “C hange in Control". As used in this Agreement, the term “C hange in Contro ” shall mean\nthat Leonard Tannenbaum and his affiliated entities collectively cease to have beneficial voting control of FSAM (or, ifan\nIPO has notoccurred, ofFifth StreetHoldings, LP).\n5. Confidential or Protected Information. As used in this Agreement, “Confidential or Protected\nInformation” means:\n(a) confidential, proprietary ortrade secret information (including, without limitation, all information as to\nwhich the Company has made efforts to maintain secrecy orthatthe law protects from disclosure) made available to\nEmployee, orto which Employee has access, or of which Employee becomes aware during his employment, including,\nwithout limitation, information related to investments made by the Company, information related to the Company's or any\nother entity's businesses, systems, operations, finances, investments, transactions, negotiations, claims, potential claims,\nsales, marketing, plans, pricing, customers, prospective customers, policies, practices, procedures, products, services,\nfinances, accounting practices or procedures, financial or investment performance (including, without limitation, any\n“track record” data or information), return on investment or capital, internal rate of return (“fl”), relationships with third\nparties, ownership, investors, partners, employees, and management, as well as the Company's or any other entity's\nsoftware (in any stage of development), programs (whether or not in final form), ideas, inventions, concepts, formulas,\nmethods, development, research, designs, drawings, schematics, specifications, techniques, models, data, source code,\nobject code, flow diagrams, and documentation; and\n(b) all information concerning any Inventions or Copyright Works. The term “Invention” means any new or\nuseful art, discovery, contribution, finding, or improvement, whether or not patentable. The term "CopyrightWorks”\nmeans materials for which copyright protection may be obtained, including, but not limited to, computer programs, artistic\nworks (including designs, graphs, drawings, blueprints and other works), literary works, recordings, photographs, slides,\nmotion pictures, and audiovisual works.\nThe forgoing description of “Confidential or Protected Information” includes all such information in any and all\nforms, whether written, oral, on a computer, tape, chip, or disk, whether prepared by Employee, by the Company, or by\nothers, whether or not fixed in tangible form, and includes all originals, summaries, portions, and copies ofany and all\nsuch information.\n6. Nondisclosure ofConfidential or Protected Information. Except as provided below in Paragraph 7,\nE mployee agrees that during E mployee's employment with the Company and after E mployee's employment with the\nCompany terminates, regardless of why such employment terminated and regardless of whetherthe termination was\nvoluntary or involuntary, Employee will not disclose to anyone, publish, sell, assign, license, or attempt to do so, and will\nnot use for Employee's own personal benefit or the benefit of anyone other than the Company, whether directly or\nindirectly, any Confidential or Protected Information. Employee also agrees to:\n(a) maintain in a confidential and protected manner all Confidential or Protected Information;\n(b) take all reasonable steps to ensure that persons and entities working for and with Employee maintain in\na confidential and protected manner all Confidential or Protected Information;\n(c) take all reasonable steps to prevent unauthorized persons and entities from obtaining, disseminating, or\nusing Confidential or Protected Information; and\n(d) promptly report to the Chief Executive Officer of Fifth Street whenever Employee learns it is likely that\nany unauthorized person or entity seeks or plans to obtain, disseminate, or use any Confidential or Protected Information.\n7. Exceptions. The restrictions relating to Confidential or Protected Information set forth in Paragraph 6\nabove do not apply:\n(a) where such disclosure or use is necessary for Employee to faithfully perform his duties as an employee\nforthe Company orfor other employees to faithfully perform their duties forthe Company;\n(b) to information which is now or hereafter becomes known or generally available to the public at large,\nexcept if such knowledge results from a breach of this Agreement or another obligation of confidentiality owed to the\nCompany;\n(c) where Employee has the prior written permission of the Chief Executive Officer of Fifth Street;\n(d) where necessary to comply with any legal obligation applicable to Employee; provided, however, that\nbefore disclosing or permitting disclosure of any Confidential or Protected Information pursuant to a legal obligation,\nEmployee agrees to (i) promptly notify the Chief Executive Officer of Fifth Street of the legal obligation that Employee\nbelieves requires that he make or permit such disclosure, and (ii) delay, if and to the extent lawful to do so, making such\ndisclosure to afford the Company a reasonable opportunity to oppose disclosure, or restrict, limit or condition such\ndisclosure.\n8. Intellectual Properly.\n(a) Ownership of Confidential or Protected Information, Inventions, and CopyrightWorks. Upon conception,\nall Confidential or Protected Information, Inventions, and CopyrightWorks shall become the exclusive property of Fifth\nStreet whether or not patent or copyright applications are filed on the subject matter of the conception.\n(b) Rights in Copyrights. Unless otherwise agreed in writing by the Chief Executive Officer of Fifth Street,\noriginal works of authorship fixed in any tangible form that are or were prepared by Employee (alone orjointly with\nothers) within the scope of Employee's employment with Fifth Street shall be deemed “works made for hire” under\ncopyright laws and shall be owned by Fifth Street. Employee understands that any sale, assignment, license, or release\nof such works can only be made by Fifth Street. Employee will do everything reasonably necessary to enable Fifth Street\nor its nominee to protect its rights in such works, including, without limitation, assigning the copyright and all rights,\nthroughout the world, in and to the work product to Fifth Street and hereby assigns to Fifth Street all such copyright and\nrights as of the date hereof.\n9. Company's Properly. Upon termination of Employee's employment with the Company, regardless of\nthe reason (whether voluntary or involuntary), Employee agrees immediately to surrenderto Fifth Street all property of\nthe Company in Employee's possession, control, or custody, including, but not limited to, the equipment, computers,\nsoftware, creditcards, books, records, reports, files, manuals, literature, the work productof Employee and all other\nCompany employees and all property containing Confidential or Protected Information (including all originals, summaries,\nportions, and copies).\n10. Nondisparagement. E mployee agrees that, during and at any time after E mployee's employment with\nthe Company, regardless of the reason (whether voluntary or involuntary), Employee will not, directly or indirectly,\nthrough any agent or affiliate, make any comments or criticisms (whether of a professional or personal nature) to any\nindividual or other third party or entity regarding the Company (or the terms of any agreement or arrangement of the\nCompany) or any of its respective affiliates, members, partners or employees, disparaging the business or reputation of\nthe Company or any of its affiliates, members, partners or employees.\n11. Remedies. Employee acknowledges and agrees that monetary damages may not be a sufficient\nremedy for any breach of this Agreement, including, without limitation, a breach of the covenants contained in\nParagraphs 2 and 3 or the unauthorized use or disclosure of Confidential or Protected Information, and that the Company\nshall be entitled, without waiving any other rights or remedies, to obtain injunctive or equitable relief as may be deemed\nproper by a court of competentjurisdiction, without obligation to post any bond. The periods of time during which\nEmployee is in violation of the covenants set forth in this Agreement shall be added to the Investor Restricted Period, the\nCustomer Restricted Period, the Employee Restricted Period and the Non-Competition Period, as applicable.\n12. Reasonableness. Employee acknowledges and agrees thatthe restrictions contained in this\nAgreement are reasonable and will not prevent him from finding other employment if his employment with the Company\nends. Employee also acknowledges and agrees that if Employee uses the Company's confidential information, or\ncompetes with the Company in violation of the terms of this Agreement, that he will be causing the Company irreparable\nharm.\n13. Severabiligy'I Revision by Court. The provisions of this Agreement shall be deemed severable and the\ninvalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If\nany provision in this Agreement is found by a court of competentjurisdiction to be unenforceable or unreasonable as\nwritten, Employee and Fifth Street hereby specifically and irrevocably authorize and request said courtto revise the\nunenforceable or unreasonable provisions in a mannerthatshall result in the provision being enforceable while remaining\nas similar as legally possible to the purpose and intent ofthe original.\n14. Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties\nhereto with respectto the obligations addressed herein and supersedes all prior or contemporaneous oral or written\nagreements regarding the subject matter hereof.\n15. Amendments; Waivers. Any addition or modification to this Agreement, or waiver of any provision\nhereof, must be in writing and signed by the parties hereto.\n16. Successors and Assigns. Employee understands and agrees that he cannot assign or otherwise\ntransfer any of his obligations underthis Agreement. Employee understands and agrees that Fifth Street may, at its\noption, assign ortransfer its rights under this Agreement to another organization or individual. Employee understands\nand agrees that if there is an assignment or transfer of Fifth Street's rights under this Agreement, then this Agreement will\ncontinue to be effective, will continue to bind Employee, and will inure to the benefit of the organization or individual to\nwhom the transfer or assignment is made.\n17. Choice of Law. This Agreement shall be governed by, construed, and enforced in accordance with the\nlaws of the State ofConnecticut, excluding its conflicts of laws principles.\n18. |urisdiction. Any action or proceeding seeking to enforce any provision of, or based on any right\narising out of, this Agreement may be brought against either party only in the courts of the State of Connecticut located in\nFairfield County. Both parties hereby irrevocably consent to the jurisdiction of any such court in any such action or\nproceeding and waive any objection to venue laid in such courts.\n19. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be\ndeemed an original but all of which together shall constitute one and the same instrument. This Agreement may be\nexecuted by facsimile signature.\n20. Employee's Acknowledgment of Voluntary Agreement. E mployee acknowledges that he has\ncarefully read this Agreement, that he has had the opportunity to receive advice with respect to this Agreement by\ncounsel of his choice, that he understands its terms and its legal effect, and that Employee has entered into this\nAgreement voluntarily and not in reliance upon any promises or representations made by the Company other than those\nmade in this Agreement itself.\n21. No Change in Status. Nothing contained in the Agreement shall affect or in any way change\nE mployee's at-will employment status.\n22. Section 409A.\n(a) Potential Six-Month Delay. Notwithstanding any other provisions of the Agreement, any payment that\nmay be provided underthis Agreement thatthe Company reasonably determines is subjectto Section 409A(a)(2)(B)(i) of\nthe Code shall not be paid or payment commenced until six (6) months afterthe date of Employee's termination of\nemployment (or, ifearlier, Employee's death). On the earliestdate on which such payments can be commenced without\nviolating the requirements ofSection 409A(a)(2)(B)(i) of the Code, Employee shall be paid, in a single cash lump sum, an\namountequal to the aggregate amountofall payments delayed pursuant to the preceding sentence.\n(b) Savings Clause. It is intended that any amounts payable under this Agreement shall either be exempt\nfrom or comply with Section 409A of the Code (including Treasury regulations and other published guidance related\nthereto) so as not to subject Employee to payment of any additional tax, penalty or interest imposed under Section 409A\nof the Code. The provisions of this Agreement shall be construed and interpreted to avoid the imputation of any such\nadditional tax, penalty or interest under Section 409A of the Code yet preserve (to the nearest extent reasonably\npossible) the intended benefit payable to Employee. Notwithstanding the foregoing, the Company makes no\nrepresentation or warranty and shall have no liability to Employee orto any other person if any of the provisions of this\nAgreement are determined to constitute deferred compensation subjectto Section 409A, butthat do not satisfy an\nexemption from, or the conditions of, that section.\n[Signature page follows]\n10\nBy signing below, the Company and Employee, intending to be legally bound, agree to the terms of this\nAgreementas listed and stated above.\nFSC CT, Inc.\nDated: By:\nName:\nTitle:\nEmployee:\nDated:\n11\nEXHIBIT A\nAs used in this Agreement, “Cause”sha|| have the meaning ascribed to it in [the Letter Agreement]/[FOR MR.\nOWENS ONLY: the Amended Offer Letter].	Exhibit 10.17\nFORM OF NON-COMPETITION, NON-SOLICITATION\nAND NON-DISCLOSURE AGREEMENT\n[For Bernard D. Berman, Ivelin M. Dimitrov, Alexander C. Frank and Todd G. Owens]\nThis Non-Competition, Non-Solicitation and Non-Disclosure Agreement ("Agreement") is entered into between\n[NAME] ("Employee") and FSC CT, Inc. ("F ifth Street"), a Connecticut corporation, as of the day of [MONTHI,\n2014.\nIn this Agreement, Employee and ifth Street are collectively referred to as the "parties". The term "Company" as used in\nthis Agreement includes Fifth Street and all direct and indirect subsidiaries and affiliates of F ifth Street, including, without\nlimitation, Fifth Street Management LLC (the "Advisor"), Fifth Street Asset Management Inc. ("FSAM"), Fifth Street\nHoldings, L.P., Fifth Street Finance Corp. (the "BDC"), Fifth Street Senior Floating Rate Corp. (the "BDC II"), Fifth Street\nSenior Loan Fund I Operating Entity, LLC, Fifth Street Senior Loan Fund II Operating Entity, LLC, Fifth Street Credit\nOpportunities Fund, L.P., Fifth Street Mezzanine Partners II, L.P., Fifth Street Capita LLC, Fifth Street Capital West, Inc.,\nFSC, Inc., FSC Midwest, Inc. and any entities formed after the date hereof which engage the Company to provide\nservices, and any affiliates of ifth Street formed after the date hereof.\n1.\nConsideration. Employee acknowledges that he has been advised by Fifth Street that the restrictions\nand covenants contained in this Agreement, and Employee's agreement to such terms, are of the essence to this\nAgreement and constitute a material inducement to Fifth Street (i) to enter into this Agreement (including, without\nlimitation, agreeing to the terms of Section 2) for the benefit of the Company, and (ii) to employ Employee [FOR\nMESSRS. BERMAN, DIMITROV AND FRANK: on the terms set forth in the Letter Agreement between the Employee\nand Fifth Street, dated as of L__I, 2014 (the "Letter Agreement")]. Employee acknowledges that the Company will not\nemploy Employee without E mployee's agreement to comply with the restrictions and covenants contained in this\nAgreement and without mployee's execution of this Agreement. Employee acknowledges and agrees that the\nCompany's providing employment to Employee is full and complete consideration for the promises and agreements\nmade by Employee herein.\n2.\nNon-Compete.\n(a)\nNon-Competition Period. As used in this Agreement, the term "Non-Competition Period" shall mean the\nperiod of Employee's employment with the Company and the one-year period commencing on the date that Employee's\nemployment with the Company terminates, regardless of the reason for such termination and regardless of whether the\ntermination was voluntary or involuntary (or the three (3) month period commencing on the date that (i) Employee's\nemployment with the Company is terminated by the Company other than for "Cause" (as defined in Exhibit A) within\nninety (90) days prior to a "Change in Control" (as defined in Section (4) below), or (ii) Employee's employment is\nterminated at any time on or after a "Change in Control" (as defined in Section (4) below)); provided that in the event of a\ntermination of Employee's employment for any reason other than for Cause (as defined on E xhibit the Company shall,\nsubject to the following conditions, pay Employee during the Non-Competition Period the sum of (i) his base salary (or a\npro rata portion, if the Non-Competition Period is less than one year in duration), pursuant to the Company's customary\npayroll policies, plus (ii) [FOR MR. OWENS ONLY: a bonus (or a pro rata portion, if the on-Competition Period is less\nthan one year in duration) equal to the average of the discretionary bonuses received by Employee over the preceding\ntwo years (but no less than $1.5 million with respect to any termination in 2014 or 20151/[FOR MESSRS. BERMAN,\nDIMITROV AND FRANK: a bonus (or a pro rata portion, if the Non-Competition Period is less than one year in duration)\nequal to the average of the discretionary bonuses received by Employee over the preceding two years]; [FOR MESSRS.\nBERMAN, DIMITROV AND FRANK: provided, further, that solely in the event of a termination of Employee's\nemployment by the Company without Cause or by the Employee for Good Reason, Employee shall be entitled to\naccelerated vesting of Options and RSUs as provided for in Annex A to the Letter Agreement]; provided that (I) the\ncommencement\nof\nthe\nforegoing\npayments\nare\nconditioned\non\nthe\neffectiveness\n(i.e.,\nthe\nexpiration\nof\nany\napplicable\nrevocation period without a revocation by Employee) of a release and waiver of all claims (the "Release") by Employee,\nin the form attached as exhibit B to the Letter Agreement [FOR MR. OWEN ONLY: in the form attached as Exhibit B to\nthe Offer Letter from Fifth Street to Employee dated as of 2014 (the "Amended Offer Letter")],\nwithin\n30\ndays\nfrom the date of termination; (II) the foregoing payments are conditioned on Employee's full compliance in all respects\nwith the post-termination obligations set forth in this Agreement (III) the post-termination obligations of Employee under\nthis Agreement shall remain in full force and effect, and Employee shall remain bound in full by such obligations,\nregardless of whether Employee elects to accept payment of such amounts, (IV) if the Company, in its sole\ndiscretion,\nwaives compliance with Section 2(a) of the Agreement in writing, the payments provided for in sub-clauses (a)(i) and (ii)\nshall no longer be paid from and after the effective date of such waiver (it being understood that no such waiver shall\naffect the Company's payment obligations under [the Letter Agreement]/[FOR MR. OWENS ONLY: the Amended Offer\nLetter] and in the event of such a waiver, the other covenants contained in this Agreement shall not be affected and will\ncontinue in full force and effect in accordance with the terms of this Agreement), [and] (V) if the termination occurs within\n90 days prior to, or at any time on or after a "Change in Control" (as defined in Section (4) below) the payment shall equal\nthree\n(3)\nmonths\nof\nbase\nsalary\nand\na\npro\nrata\nportion\nof\nthe\napplicable\nbonus\nequal\nto\nthree\n(3)\nmonths\n[and\nFOR\nMR.\nOWENS ONLY: (VI) any payment obligations under this Agreement shall be reduced by all post-termination separation\npayments paid to the Employee under the Letter Agreement]. Employee covenants, during the one year period following\nthe termination of his employment, to provide to the Company, as promptly as reasonably practicable prior to\ncommencing employment, with advance written notice of the name of his new employer. For purposes of this Agreement,\n"base salary" shall mean an amount equal to the highest base salary ever paid to Employee during his employment by\nthe Company.\n2\n(b)\nNon-Competition. In order to protect the Company's Confidential or Protected Information, E mployee\nagrees that, during the Non-Competition Period, mployee shall not, directly or indirectly, own, manage, operate, control\nor participate in the ownership, management, operation or control of, or be connected as an officer, employee, director,\nconsultant, advisor, agent, independent contractor, partner, member, stockholder, trustee, or otherwise with, or have any\nfinancial interests in, or aid or assist anyone else in the conduct of, or in any other capacity be engaged directly or\nindirectly in, any entity or business (i) that is in competition with the Company's business of arranging and/or providing\nfinancing solutions to sponsor-led, middle market acquisitions or (ii) that is in competition with any other type of business\nin which the Company is also engaged, or plans to be engaged (each, a "Competitive Business"). The ownership of less\nthan two percent (2%) of any class of the outstanding securities of any corporation whose shares are traded on a U.S.\nnational securities exchange or quoted on The Nasdaq Stock Market, even though such corporation may be a\nCompetitive Business, shall not be deemed to constitute an interest in such competitor which violates this paragraph.\nFollowing the termination of Employee's employment, the foregoing shall not prevent E mployee from providing services\nto any enterprise engaged in a Competitive Business to the extent that such services, or any supervisory responsibility of\nEmployee associated with such position, are related only to the products or lines of business of such entity which,\nstanding alone, would not constitute a Competitive Business, so long as the portion of the enterprise that is a Competitive\nBusiness does not represent more than fifty percent (50%) of the revenues of such enterprise at any time.\n(c)\nTiming of Payments. The payments described in Section 2(a) above shall be paid, minus applicable\ndeductions, including deductions for tax withholding, in equal payments on the regular payroll dates during the\nNon-Competition eriod following Employee's termination of employment. Commencement of payments described in\nSection 2(a) shall begin on the payroll date within 30 days of the effective date of the Release. The first payment shall\ninclude those payments that would have previously been paid if the payments described in Section 2(a) had begun on\nthe first payroll date following Employee's termination of employment This timing of the commencement of payments is\nsubject to Section 22 below and Annex D to the Letter Agreement.\n(d)\nFor purposes of this Agreement, "termination of employment" shall mean a "separation of service" as\ndefined in Section 409A of the Internal evenue Code of 1986, as amended, (the "Code") and Treasury Regulations\nSection 1.409A-1(h) without regard to the optional alternative definitions available thereunder.\n(e)\nThe payments described in Section 2(a) shall be treated as a series of separate payments for purposes\nof Section 409A of the Code.\n(f)\nAny amounts payable to Employee by the Company under this Agreement or under any other plan or\narrangement of the Company which are subject to Section 409A and are conditioned upon execution of a waiver and\nrelease that may be executed and/or revoked in a calendar year following the calendar year in which the payment event\n(such as termination of employment) occurs shall commence payment only in such following calendar year, to the extent\nnecessary to comply with Section 409A.\n3\n3.\nNon-Solicitation Covenants.\n(a)\nRestricted eriod.\nAs used in this Agreement, the term "Investor Restricted Period" shall mean (x) the term of Employee's\nemployment with the Company, and (y) (I) the one-year period commencing on the date that\nEmployee's employment with the Company terminates, regardless of the reason for such termination\ni.\nand regardless of whether the termination was voluntary or involuntary, or, if applicable, (II) the six (6)\nmonth period commencing on the date that mployee's employment with the Company terminates,\nprovided that (i) such termination was by the Company other than for "Cause" (as defined in E xhibit A)\nand was within ninety (90) days prior to a "Change in Control" (as defined in Section (4) below) or (ii)\nsuch termination was on or after a "Change in Control" (as defined in Section (4) below).\nAs used in this Agreement, the term "Customer Restricted Period" shall mean (x) the term of\nEmployee's employment with the Company, and (y) (I) the one-year period commencing on the date\nthat E mployee's employment with the Company terminates, regardless of the reason for such\nii.\ntermination and regardless of whether the termination was voluntary or involuntary, or, if applicable, (II)\nthe six (6) month period commencing on the date that Employee's employment with the Company\nterminates, provided that (i) such termination was by the Company other than for "Cause" (as defined\nin E xhibit A) and was within ninety (90) days prior to a "Change in Control" (as defined in Section (4)\nbelow) or (ii) such termination was on or after a "Change in Control" (as defined in Section (4) below).\nAs used in this Agreement, the term "Employee Restricted Period" shall mean (x) the term of\nEmployee's employment with the Company, and (y) (I) the two-year period commencing on the date\nthat E mployee's employment with the Company terminates, regardless of the reason for such\niii.\ntermination and regardless of whether the termination was voluntary or involuntary, or, if applicable, (II)\nthe six (6) month period commencing on the date that mployee's employment with the Company\nterminates, provided that (i) such termination was by the Company other than for "Cause" (as defined\nin xhibit A) and was within ninety (90) days prior to a "Change in Control" (as defined in Section (4)\nbelow) or (ii) such termination was on or after a "Change in Control" (as defined in Section (4) below).\n(b)\nNon-Solicitation of Investors. Employee agrees that, during the Investor Restricted eriod, E mployee\nshall not, directly or indirectly, for himself or for any person or entity other than the Company: (i) solicit or accept any\ninvestment from any person or entity that was an Investor, at any time prior to the termination of mployee's employment\nwith the Company; (ii) induce or influence any such Investor to discontinue, modify, or reduce its business relationship\nwith the Company; or (iii) assist or cause any person or entity to engage in any of the actions in which mployee has\nagreed not to engage under this paragraph. The term "Investor" means investors (and their affiliates) that did business\nwith the Company, or any account, fund or other entity for which the Advisor or any affiliate of the Advisor provided\ninvestment advisory or management services at any time during Employee's employment and all potential investors\nwhich, as of the last day of mployee's employment, the Company was soliciting or marketing (including, without\nlimitation, any potentia investor (or affiliate thereof) to which the Company delivered a PPM or similar offering\nmemorandum within the 2 years preceding the termination of :mployee's employment). Notwithstanding the foregoing,\nno person shall be deemed to be an Investor solely based on the fact that such person is or was a stockholder of the\nBDC or BDC II.\n4\n(c)\nNon-Solicitation of Customers. E mployee agrees that, during the Customer Restricted Period, Employee\nshall not, directly or indirectly, for himself or for any person or entity other than the Company: (i) solicit business (unless\nsuch business is noncompetitive to the Company's business) from any customer or client of the Company (a "Covered\nCustomer"); (ii) induce or influence any Covered Customer to discontinue, modify, or reduce its business relationship with\nthe Company; (iii) solicit, induce or influence any entity to not accept a written term sheet or commitment letter that was\nissued in the six months prior to mployee's termination from the Company or discontinue a loan arrangement with the\nCompany that that was in existence at the time of Employee's termination; or (iv) assist or cause any person or entity to\nengage in any of the actions in which Employee has agreed not to engage under this paragraph.\n(d)\nNon-Solicitation of Employees. E mployee agrees that, during the Employee Restricted Period, :mployee\nshall not, directly or indirectly, for himself or for any person or entity other than the Company: (i) induce, encourage, or\nsolicit any individual who is employed by the Company as of the date of Employee's termination of employment, or within\none year prior thereto, to leave such employment or to become employed by or provide services to any person or entity\nother than the Company, or (ii) assist or cause any person or entity to engage in any of the actions in which Employee\nhas agreed not to engage under this paragraph.\n4.\nDefinition of "Change in Control". As used in this Agreement, the term "Change in Control" shall mean\nthat Leonard Tannenbaum and his affiliated entities collectively cease to have beneficial voting control of FSAM (or, if an\nIPO has not occurred, of Fifth Street Holdings, LP).\n5.\nConfidential or Protected Information. As used in this Agreement, "Confidential or Protected\nInformation" means:\n(a)\nconfidential, proprietary or trade secret information (including, without limitation, all information as to\nwhich the Company has made efforts to maintain secrecy or that the law protects from disclosure) made available to\nEmployee, or to which mployee has access, or of which Employee becomes aware during his employment, including,\nwithout limitation, information related to investments made by the Company, information related to the Company's or any\nother entity's businesses, systems, operations, finances, investments, transactions, negotiations, claims, potential claims,\nsales, marketing, plans, pricing, customers, prospective customers, policies, practices, procedures, products, services,\nfinances, accounting practices or procedures, financial or investment performance (including, without limitation, any\n"track record" data or information), return on investment or capital, internal rate of return ("IRR"), relationships with third\nparties, ownership, investors, partners, employees, and management, as well as the Company's or any other entity's\nsoftware (in any stage of development), programs (whether or not in final form), ideas, inventions, concepts, formulas,\nmethods, development, research, designs, drawings, schematics, specifications, techniques, models, data, source code,\nobject code, flow diagrams, and documentation; and\n5\n(b)\nall information concerning any Inventions or Copyright Works. The term "Invention" means any new or\nuseful art, discovery, contribution, finding, or improvement, whether or not patentable. The term "Copyright Works"\nmeans materials for which copyright protection may be obtained, including, but not limited to, computer programs, artistic\nworks (including designs, graphs, drawings, blueprints and other works), literary works, recordings, photographs, slides,\nmotion pictures, and audiovisual works.\nThe forgoing description of "Confidential or Protected Information" includes all such information in any and all\nforms, whether written, oral, on a computer, tape, chip, or disk, whether prepared by Employee, by the Company, or by\nothers, whether or not fixed in tangible form, and includes all originals, summaries, portions, and copies of any and all\nsuch information.\n6.\nNondisclosure of Confidential or Protected Information. E xcept as provided below in Paragraph 7,\nmployee agrees that during E mployee's employment with the Company and after Employee's employment with the\nCompany terminates, regardless of why such employment terminated and regardless of whether the termination was\nvoluntary or involuntary, Employee will not disclose to anyone, publish, sell, assign, license, or attempt to do so, and will\nnot use for E mployee's own personal benefit or the benefit of anyone other than the Company, whether directly or\nindirectly, any Confidential or P rotected Information. E mployee also agrees to:\n(a)\nmaintain in a confidential and protected manner all Confidential or Protected Information;\n(b)\ntake all reasonable steps to ensure that persons and entities working for and with Employee maintain in\na\nconfidential and protected manner all Confidentia or Protected Information;\n(c)\ntake all reasonable steps to prevent unauthorized persons and entities from obtaining, disseminating, or\nusing Confidential or Protected Information; and\n(d)\npromptly report to the Chief Executive Officer of Fifth Street whenever E mployee learns it is likely that\nany unauthorized person or entity seeks or plans to obtain, disseminate, or use any Confidential or Protected Information.\n6\n7.\nExceptions. The restrictions relating to Confidentia or Protected Information set forth in Paragraph 6\nabove do not apply:\n(a)\nwhere such disclosure or use is necessary for E mployee to faithfully perform his duties as an employee\nfor the Company or for other employees to faithfully perform their duties for the Company;\n(b)\nto information which is now or hereafter becomes known or generally available to the public at large,\nexcept if such knowledge results from a breach of this Agreement or another obligation of confidentiality owed to the\nCompany;\n(c)\nwhere Employee has the prior written permission of the Chief Executive Officer of ifth Street;\n(d)\nwhere necessary to comply with any legal obligation applicable to Employee; provided, however, that\nbefore disclosing or permitting disclosure of any Confidential or Protected Information pursuant to a legal obligation,\nEmployee agrees to (i) promptly notify the Chief Executive Officer of ifth Street of the legal obligation that E mployee\nbelieves requires that he make or permit such disclosure, and (ii) delay, if and to the extent lawful to do so, making such\ndisclosure to afford the Company a reasonable opportunity to oppose disclosure, or restrict, limit or condition such\ndisclosure.\n8.\nIntellectual Property.\n(a)\nOwnership of Confidential or Protected Information, Inventions, and Copyright Works. Upon conception,\nall\nConfidential or Protected Information, Inventions, and Copyright Works shall become the exclusive property of Fifth\nStreet whether or not patent or copyright applications are filed on the subject matter of the conception.\n(b)\nRights in Copyrights. Unless otherwise agreed in writing by the Chief Executive fficer of F ifth Street,\norigina works of authorship fixed in any tangible form that are or were prepared by Employee (alone or jointly with\nothers) within the scope of Employee's employment with ifth Street shall be deemed "works made for hire" under\ncopyright laws and shall be owned by ifth Street Employee understands that any sale, assignment, license, or release\nof such works can only be made by Fifth Street Employee will do everything reasonably necessary to enable Fifth Street\nor its nominee to protect its rights in such works, including, without limitation, assigning the copyright and all rights,\nthroughout the world, in and to the work product to ifth Street and hereby assigns to Fifth Street all such copyright and\nrights as of the date hereof.\n9.\nCompany's Property. Jpon termination of Employee's employment with the Company, regardless of\nthe reason (whether voluntary or involuntary), Employee agrees immediately to surrender to Fifth Street all property of\nthe Company in Employee's possession, control, or custody, including, but not limited to, the equipment, computers,\nsoftware, credit cards, books, records, reports, files, manuals, literature, the work product of Employee and all other\nCompany employees and all property containing Confidentia or rotected Information (including all originals, summaries,\nportions, and copies).\n7\n10.\nNondisparagement. E mployee agrees that, during and at any time after mployee's employment with\nthe Company, regardless of the reason (whether voluntary or involuntary), E mployee will not, directly or indirectly,\nthrough any agent or affiliate, make any comments or criticisms (whether of a professiona or personal nature) to any\nindividual or other third party or entity regarding the Company (or the terms of any agreement or arrangement of the\nCompany) or any of its respective affiliates, members, partners or employees, disparaging the business or reputation of\nthe Company or any of its affiliates, members, partners or employees.\n11.\nRemedies. mployee acknowledges and agrees that monetary damages may not be a sufficient\nremedy for any breach of this Agreement, including, without limitation, a breach of the covenants contained in\nParagraphs 2 and 3 or the unauthorized use or disclosure of Confidential or Protected Information, and that the Company\nshall be entitled, without waiving any other rights or remedies, to obtain injunctive or equitable relief as may be deemed\nproper by a court of competent jurisdiction, without obligation to post any bond. The periods of time during which\nEmployee is in violation of the covenants set forth in this Agreement shall be added to the Investor Restricted Period, the\nCustomer Restricted Period, the Employee Restricted Period and the Non-Competition Period, as applicable.\n12.\nReasonableness. Employee acknowledges and agrees that the restrictions contained in this\nAgreement are reasonable and will not prevent him from finding other employment if his employment with the Company\nends Employee also acknowledges and agrees that if mployee uses the Company's confidential information, or\ncompetes with the Company in violation of the terms of this Agreement, that he wil be causing the Company irreparable\nharm.\n13.\nSeverability; Revision by Court. The provisions of this Agreement shall be deemed severable and the\ninvalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If\nany provision in this Agreement is found by a court of competent jurisdiction to be unenforceable or unreasonable as\nwritten, Employee and Fifth Street hereby specifically and irrevocably authorize and request said court to revise the\nunenforceable or unreasonable provisions in a manner that shall result in the provision being enforceable while remaining\nas similar as legally possible to the purpose and intent of the original.\n14.\nEntire Agreement This Agreement constitutes the entire agreement and understanding of the parties\nhereto with respect to the obligations addressed herein and supersedes all prior or contemporaneous oral or written\nagreements regarding the subject matter hereof.\n15.\nAmendments; Waivers. Any addition or modification to this Agreement, or waiver of any provision\nhereof, must be in writing and signed by the parties hereto.\n8\n16.\nSuccessors and Assigns. E :mployee understands and agrees that he cannot assign or otherwise\ntransfer any of his obligations under this Agreement. mployee understands and agrees that Fifth Street may, at its\noption, assign or transfer its rights under this Agreement to another organization or individual. E mployee understands\nand agrees that if there is an assignment or transfer of Fifth Street's rights under this Agreement, then this Agreement will\ncontinue to be effective, will continue to bind Employee, and wil inure to the benefit of the organization or individua to\nwhom the transfer or assignment is made.\n17.\nChoice of Law. This Agreement shall be governed by, construed, and enforced in accordance with the\nlaws of the State of Connecticut, excluding its conflicts of laws principles.\n18.\nurisdiction. Any action or proceeding seeking to enforce any provision of, or based on any right\narising out of, this Agreement may be brought against either party only in the courts of the State of Connecticut located in\nFairfield County. Both parties hereby irrevocably consent to the jurisdiction of any such court in any such action or\nproceeding and waive any objection to venue laid in such courts.\n19.\nCounterparts. This Agreement may be executed in any number of counterparts, each of which shall be\ndeemed an original but all of which together shall constitute one and the same instrument This Agreement may be\nexecuted by facsimile signature.\n20.\nEmployee's Acknowledgment of Voluntary Agreement. Employee acknowledges that he has\ncarefully read this Agreement, that he has had the opportunity to receive advice with respect to this Agreement by\ncounsel of his choice, that he understands its terms and its legal effect, and that Employee has entered into this\nAgreement voluntarily and not in reliance upon any promises or representations made by the Company other than those\nmade in this Agreement itself.\n21.\nNo Change in Status. Nothing contained in the Agreement shall affect or in any way change\nEmployee's at-will employment status.\n22.\nSection 409A.\n(a)\nPotential Six-Month Delay. Notwithstanding any other provisions of the Agreement, any payment that\nmay be provided under this Agreement that the Company reasonably determines is subject to Section 409A(a)(2)(B)(i) of\nthe Code shall not be paid or payment commenced until six (6) months after the date of Employee's termination of\nemployment (or, if earlier, Employee's death). On the earliest date on which such payments can be commenced without\nviolating the requirements of Section 409A(a)(2)(B)(i) of the Code, Employee shall be paid, in a single cash lump sum, an\namount equal to the aggregate amount of all payments delayed pursuant to the preceding sentence.\n9\n(b)\nSavings Clause. It is intended that any amounts payable under this Agreement shal either be exempt\nfrom or comply with Section 409A of the Code (including Treasury regulations and other published guidance related\nthereto) so as not to subject Employee to payment of any additional tax, penalty or interest imposed under Section 409A\nof the Code. The provisions of this Agreement shall be construed and interpreted to avoid the imputation of any such\nadditional tax, penalty or interest under Section 409A of the Code yet preserve (to the nearest extent reasonably\npossible) the intended benefit payable to Employee. Notwithstanding the foregoing, the Company makes no\nrepresentation or warranty and shall have no liability to Employee or to any other person if any of the provisions of this\nAgreement are determined to constitute deferred compensation subject to Section 409A, but that do not satisfy an\nexemption from, or the conditions of, that section.\n[S ignature page follows]\n10\nBy signing below, the Company and Employee, intending to be legally bound, agree to the terms of this\nAgreement as listed and stated above.\nFSC CT, Inc.\nDated:\nBy:\nName:\nTitle:\nEmployee:\nDated:\n11\nEXHIBIT A\nAs used in this Agreement, "Cause" shall have the meaning ascribed to it in [the Letter Agreement][FOR MR.\nOWENS ONLY: the Amended Offer Letter].	Exhibit 10.17\nFORM OF NON-COMPETITION, NON-SOLICITATION\nAND NON-DISCLOSURE AGREEMENT\n[For Bernard D. Berman, Ivelin M. Dimitrov, Alexander C. Frank and Todd G. Owens]\nThis Non-Competition, Non-Solicitation and Non-Disclosure Agreement (“Agreement”) is entered into between\n[NAME] (“Employee”) and FSC CT, Inc. (“Fifth Street”), a Connecticut corporation, as of the [__] day of [MONTH], 2014.\nIn this Agreement, Employee and Fifth Street are collectively referred to as the “parties”. The term “Company” as used in\nthis Agreement includes Fifth Street and all direct and indirect subsidiaries and affiliates of Fifth Street, including, without\nlimitation, Fifth Street Management LLC (the “Advisor”), Fifth Street Asset Management Inc. (“FSAM”), Fifth Street\nHoldings, L.P ., Fifth Street Finance Corp. (the “BDC”), Fifth Street Senior Floating Rate Corp. (the “BDC II”), Fifth Street\nSenior Loan Fund I Operating Entity, LLC, Fifth Street Senior Loan Fund II Operating Entity, LLC, Fifth Street Credit\nOpportunities Fund, L.P ., Fifth Street Mezzanine Partners II, L.P ., Fifth Street Capital LLC, Fifth Street Capital West, Inc.,\nFSC, Inc., FSC Midwest, Inc. and any entities formed after the date hereof which engage the Company to provide\nservices, and any affiliates of Fifth Street formed after the date hereof.\n1.\nConsideration. Employee acknowledges that he has been advised by Fifth Street that the restrictions\nand covenants contained in this Agreement, and Employee's agreement to such terms, are of the essence to this\nAgreement and constitute a material inducement to Fifth Street (i) to enter into this Agreement (including, without\nlimitation, agreeing to the terms of Section 2) for the benefit of the Company, and (ii) to employ Employee [FOR\nMESSRS. BERMAN, DIMITROV AND FRANK: on the terms set forth in the Letter Agreement between the Employee\nand Fifth Street, dated as of [____], 2014 (the “Letter Agreement”)]. Employee acknowledges that the Company will not\nemploy Employee without Employee’s agreement to comply with the restrictions and covenants contained in this\nAgreement and without Employee’s execution of this Agreement. Employee acknowledges and agrees that the\nCompany’s providing employment to Employee is full and complete consideration for the promises and agreements\nmade by Employee herein.\n2.\nNon-Compete.\n(a)\nNon-Competition Period. As used in this Agreement, the term “Non-Competition Period” shall mean the\nperiod of Employee's employment with the Company and the one-year period commencing on the date that Employee’s\nemployment with the Company terminates, regardless of the reason for such termination and regardless of whether the\ntermination was voluntary or involuntary (or the three (3) month period commencing on the date that (i) Employee’s\nemployment with the Company is terminated by the Company other than for “Cause” (as defined in Exhibit A) within\nninety (90) days prior to a “Change in Control” (as defined in Section (4) below), or (ii) Employee’s employment is\nterminated at any time on or after a “Change in Control” (as defined in Section (4) below)); provided that in the event of a\ntermination of Employee’s employment for any reason other than for Cause (as defined on Exhibit A), the Company shall,\nsubject to the following conditions, pay Employee during the Non-Competition Period the sum of (i) his base salary (or a\npro rata portion, if the Non-Competition Period is less than one year in duration), pursuant to the Company’s customary\npayroll policies, plus (ii) [FOR MR. OWENS ONLY: a bonus (or a pro rata portion, if the Non-Competition Period is less\nthan one year in duration) equal to the average of the discretionary bonuses received by Employee over the preceding\ntwo years (but no less than $1.5 million with respect to any termination in 2014 or 2015]/[FOR MESSRS. BERMAN,\nDIMITROV AND FRANK: a bonus (or a pro rata portion, if the Non-Competition Period is less than one year in duration)\nequal to the average of the discretionary bonuses received by Employee over the preceding two years]; [FOR MESSRS.\nBERMAN, DIMITROV AND FRANK: provided, further, that solely in the event of a termination of Employee’s\nemployment by the Company without Cause or by the Employee for Good Reason, Employee shall be entitled to\naccelerated vesting of Options and RSUs as provided for in Annex A to the Letter Agreement]; provided that (I) the\ncommencement of the foregoing payments are conditioned on the effectiveness (i.e., the expiration of any applicable\nrevocation period without a revocation by Employee) of a release and waiver of all claims (the “Release”) by Employee,\nin the form attached as exhibit B to the Letter Agreement [FOR MR. OWEN ONLY: in the form attached as Exhibit B to\nthe Offer Letter from Fifth Street to Employee dated as of [_____], 2014 (the “Amended Offer Letter”)], within 30 days\nfrom the date of termination; (II) the foregoing payments are conditioned on Employee’s full compliance in all respects\nwith the post-termination obligations set forth in this Agreement, (III) the post-termination obligations of Employee under\nthis Agreement shall remain in full force and effect, and Employee shall remain bound in full by such obligations,\nregardless of whether Employee elects to accept payment of such amounts, (IV) if the Company, in its sole discretion,\nwaives compliance with Section 2(a) of the Agreement in writing, the payments provided for in sub-clauses (a)(i) and (ii)\nshall no longer be paid from and after the effective date of such waiver (it being understood that no such waiver shall\naffect the Company’s payment obligations under [the Letter Agreement]/[FOR MR. OWENS ONLY: the Amended Offer\nLetter] and in the event of such a waiver, the other covenants contained in this Agreement shall not be affected and will\ncontinue in full force and effect in accordance with the terms of this Agreement), [and] (V) if the termination occurs within\n90 days prior to, or at any time on or after a “Change in Control” (as defined in Section (4) below) the payment shall equal\nthree (3) months of base salary and a pro rata portion of the applicable bonus equal to three (3) months [and FOR MR.\nOWENS ONLY: (VI) any payment obligations under this Agreement shall be reduced by all post-termination separation\npayments paid to the Employee under the Letter Agreement]. Employee covenants, during the one year period following\nthe termination of his employment, to provide to the Company, as promptly as reasonably practicable prior to\ncommencing employment, with advance written notice of the name of his new employer. For purposes of this Agreement,\n“base salary” shall mean an amount equal to the highest base salary ever paid to Employee during his employment by\nthe Company.\n2\n(b)\nNon-Competition. In order to protect the Company’s Confidential or Protected Information, Employee\nagrees that, during the Non-Competition Period, Employee shall not, directly or indirectly, own, manage, operate, control\nor participate in the ownership, management, operation or control of, or be connected as an officer, employee, director,\nconsultant, advisor, agent, independent contractor, partner, member, stockholder, trustee, or otherwise with, or have any\nfinancial interests in, or aid or assist anyone else in the conduct of, or in any other capacity be engaged directly or\nindirectly in, any entity or business (i) that is in competition with the Company's business of arranging and/or providing\nfinancing solutions to sponsor-led, middle market acquisitions or (ii) that is in competition with any other type of business\nin which the Company is also engaged, or plans to be engaged (each, a “Competitive Business”). The ownership of less\nthan two percent (2%) of any class of the outstanding securities of any corporation whose shares are traded on a U.S .\nnational securities exchange or quoted on The Nasdaq Stock Market, even though such corporation may be a\nCompetitive Business, shall not be deemed to constitute an interest in such competitor which violates this paragraph.\nFollowing the termination of Employee’s employment, the foregoing shall not prevent Employee from providing services\nto any enterprise engaged in a Competitive Business to the extent that such services, or any supervisory responsibility of\nEmployee associated with such position, are related only to the products or lines of business of such entity which,\nstanding alone, would not constitute a Competitive Business, so long as the portion of the enterprise that is a Competitive\nBusiness does not represent more than fifty percent (50%) of the revenues of such enterprise at any time.\n(c)\nTiming of Payments. The payments described in Section 2(a) above shall be paid, minus applicable\ndeductions, including deductions for tax withholding, in equal payments on the regular payroll dates during the\nNon-Competition Period following Employee’s termination of employment. Commencement of payments described in\nSection 2(a) shall begin on the payroll date within 30 days of the effective date of the Release. The first payment shall\ninclude those payments that would have previously been paid if the payments described in Section 2(a) had begun on\nthe first payroll date following Employee’s termination of employment. This timing of the commencement of payments is\nsubject to Section 22 below and Annex D to the Letter Agreement.\n(d)\nFor purposes of this Agreement, “termination of employment” shall mean a “separation of service” as\ndefined in Section 409A of the Internal Revenue Code of 1986, as amended, (the “Code”) and Treasury Regulations\nSection 1.409A-1(h) without regard to the optional alternative definitions available thereunder.\n(e)\nThe payments described in Section 2(a) shall be treated as a series of separate payments for purposes\nof Section 409A of the Code.\n(f)\nAny amounts payable to Employee by the Company under this Agreement or under any other plan or\narrangement of the Company which are subject to Section 409A and are conditioned upon execution of a waiver and\nrelease that may be executed and/or revoked in a calendar year following the calendar year in which the payment event\n(such as termination of employment) occurs shall commence payment only in such following calendar year, to the extent\nnecessary to comply with Section 409A.\n3\n3.\nNon-Solicitation Covenants.\n(a)\nRestricted Period.\ni.\nAs used in this Agreement, the term “Investor Restricted Period” shall mean (x) the term of Employee's\nemployment with the Company, and (y) (I) the one-year period commencing on the date that\nEmployee's employment with the Company terminates, regardless of the reason for such termination\nand regardless of whether the termination was voluntary or involuntary, or, if applicable, (II) the six (6)\nmonth period commencing on the date that Employee’s employment with the Company terminates,\nprovided that (i) such termination was by the Company other than for “Cause” (as defined in Exhibit A)\nand was within ninety (90) days prior to a “Change in Control” (as defined in Section (4) below) or (ii)\nsuch termination was on or after a “Change in Control” (as defined in Section (4) below).\nii.\nAs used in this Agreement, the term “Customer Restricted Period” shall mean (x) the term of\nEmployee's employment with the Company, and (y) (I) the one-year period commencing on the date\nthat Employee's employment with the Company terminates, regardless of the reason for such\ntermination and regardless of whether the termination was voluntary or involuntary, or, if applicable, (II)\nthe six (6) month period commencing on the date that Employee’s employment with the Company\nterminates, provided that (i) such termination was by the Company other than for “Cause” (as defined\nin Exhibit A) and was within ninety (90) days prior to a “Change in Control” (as defined in Section (4)\nbelow) or (ii) such termination was on or after a “Change in Control” (as defined in Section (4) below).\niii.\nAs used in this Agreement, the term “Employee Restricted Period” shall mean (x) the term of\nEmployee's employment with the Company, and (y) (I) the two-year period commencing on the date\nthat Employee's employment with the Company terminates, regardless of the reason for such\ntermination and regardless of whether the termination was voluntary or involuntary, or, if applicable, (II)\nthe six (6) month period commencing on the date that Employee’s employment with the Company\nterminates, provided that (i) such termination was by the Company other than for “Cause” (as defined\nin Exhibit A) and was within ninety (90) days prior to a “Change in Control” (as defined in Section (4)\nbelow) or (ii) such termination was on or after a “Change in Control” (as defined in Section (4) below).\n(b)\nNon-Solicitation of Investors. Employee agrees that, during the Investor Restricted Period, Employee\nshall not, directly or indirectly, for himself or for any person or entity other than the Company: (i) solicit or accept any\ninvestment from any person or entity that was an Investor, at any time prior to the termination of Employee's employment\nwith the Company; (ii) induce or influence any such Investor to discontinue, modify, or reduce its business relationship\nwith the Company; or (iii) assist or cause any person or entity to engage in any of the actions in which Employee has\nagreed not to engage under this paragraph. The term “Investor” means investors (and their affiliates) that did business\nwith the Company, or any account, fund or other entity for which the Advisor or any affiliate of the Advisor provided\ninvestment advisory or management services at any time during Employee's employment and all potential investors\nwhich, as of the last day of Employee's employment, the Company was soliciting or marketing (including, without\nlimitation, any potential investor (or affiliate thereof) to which the Company delivered a PPM or similar offering\nmemorandum within the 2 years preceding the termination of Employee's employment). Notwithstanding the foregoing,\nno person shall be deemed to be an Investor solely based on the fact that such person is or was a stockholder of the\nBDC or BDC II.\n4\n(c)\nNon-Solicitation of Customers. Employee agrees that, during the Customer Restricted Period, Employee\nshall not, directly or indirectly, for himself or for any person or entity other than the Company: (i) solicit business (unless\nsuch business is noncompetitive to the Company's business) from any customer or client of the Company (a “Covered\nCustomer”); (ii) induce or influence any Covered Customer to discontinue, modify, or reduce its business relationship with\nthe Company; (iii) solicit, induce or influence any entity to not accept a written term sheet or commitment letter that was\nissued in the six months prior to Employee's termination from the Company or discontinue a loan arrangement with the\nCompany that that was in existence at the time of Employee's termination; or (iv) assist or cause any person or entity to\nengage in any of the actions in which Employee has agreed not to engage under this paragraph.\n(d)\nNon-Solicitation of Employees. Employee agrees that, during the Employee Restricted Period, Employee\nshall not, directly or indirectly, for himself or for any person or entity other than the Company: (i) induce, encourage, or\nsolicit any individual who is employed by the Company as of the date of Employee's termination of employment, or within\none year prior thereto, to leave such employment or to become employed by or provide services to any person or entity\nother than the Company, or (ii) assist or cause any person or entity to engage in any of the actions in which Employee\nhas agreed not to engage under this paragraph.\n4.\nDefinition of “Change in Control”. As used in this Agreement, the term “Change in Control” shall mean\nthat Leonard Tannenbaum and his affiliated entities collectively cease to have beneficial voting control of FSAM (or, if an\nIPO has not occurred, of Fifth Street Holdings, LP).\n5.\nConfidential or Protected Information. As used in this Agreement, “Confidential or Protected\nInformation” means:\n(a)\nconfidential, proprietary or trade secret information (including, without limitation, all information as to\nwhich the Company has made efforts to maintain secrecy or that the law protects from disclosure) made available to\nEmployee, or to which Employee has access, or of which Employee becomes aware during his employment, including,\nwithout limitation, information related to investments made by the Company, information related to the Company's or any\nother entity's businesses, systems, operations, finances, investments, transactions, negotiations, claims, potential claims,\nsales, marketing, plans, pricing, customers, prospective customers, policies, practices, procedures, products, services,\nfinances, accounting practices or procedures, financial or investment performance (including, without limitation, any\n“track record” data or information), return on investment or capital, internal rate of return (“IRR”), relationships with third\nparties, ownership, investors, partners, employees, and management, as well as the Company's or any other entity's\nsoftware (in any stage of development), programs (whether or not in final form), ideas, inventions, concepts, formulas,\nmethods, development, research, designs, drawings, schematics, specifications, techniques, models, data, source code,\nobject code, flow diagrams, and documentation; and\n5\n(b)\nall information concerning any Inventions or Copyright Works. The term “Invention” means any new or\nuseful art, discovery, contribution, finding, or improvement, whether or not patentable. The term “Copyright Works”\nmeans materials for which copyright protection may be obtained, including, but not limited to, computer programs, artistic\nworks (including designs, graphs, drawings, blueprints and other works), literary works, recordings, photographs, slides,\nmotion pictures, and audiovisual works.\nThe forgoing description of “Confidential or Protected Information” includes all such information in any and all\nforms, whether written, oral, on a computer, tape, chip, or disk, whether prepared by Employee, by the Company, or by\nothers, whether or not fixed in tangible form, and includes all originals, summaries, portions, and copies of any and all\nsuch information.\n6.\nNondisclosure of Confidential or Protected Information. Except as provided below in Paragraph 7,\nEmployee agrees that during Employee's employment with the Company and after Employee's employment with the\nCompany terminates, regardless of why such employment terminated and regardless of whether the termination was\nvoluntary or involuntary, Employee will not disclose to anyone, publish, sell, assign, license, or attempt to do so, and will\nnot use for Employee's own personal benefit or the benefit of anyone other than the Company, whether directly or\nindirectly, any Confidential or Protected Information. Employee also agrees to:\n(a)\nmaintain in a confidential and protected manner all Confidential or Protected Information;\n(b)\ntake all reasonable steps to ensure that persons and entities working for and with Employee maintain in\na confidential and protected manner all Confidential or Protected Information;\n(c)\ntake all reasonable steps to prevent unauthorized persons and entities from obtaining, disseminating, or\nusing Confidential or Protected Information; and\n(d)\npromptly report to the Chief Executive Officer of Fifth Street whenever Employee learns it is likely that\nany unauthorized person or entity seeks or plans to obtain, disseminate, or use any Confidential or Protected Information.\n6\n7.\nExceptions. The restrictions relating to Confidential or Protected Information set forth in Paragraph 6\nabove do not apply:\n(a)\nwhere such disclosure or use is necessary for Employee to faithfully perform his duties as an employee\nfor the Company or for other employees to faithfully perform their duties for the Company;\n(b)\nto information which is now or hereafter becomes known or generally available to the public at large,\nexcept if such knowledge results from a breach of this Agreement or another obligation of confidentiality owed to the\nCompany;\n(c)\nwhere Employee has the prior written permission of the Chief Executive Officer of Fifth Street;\n(d)\nwhere necessary to comply with any legal obligation applicable to Employee; provided, however, that\nbefore disclosing or permitting disclosure of any Confidential or Protected Information pursuant to a legal obligation,\nEmployee agrees to (i) promptly notify the Chief Executive Officer of Fifth Street of the legal obligation that Employee\nbelieves requires that he make or permit such disclosure, and (ii) delay, if and to the extent lawful to do so, making such\ndisclosure to afford the Company a reasonable opportunity to oppose disclosure, or restrict, limit or condition such\ndisclosure.\n8.\nIntellectual Property.\n(a) Ownership of Confidential or Protected Information, Inventions, and Copyright Works. Upon conception,\nall Confidential or Protected Information, Inventions, and Copyright Works shall become the exclusive property of Fifth\nStreet whether or not patent or copyright applications are filed on the subject matter of the conception.\n(b) Rights in Copyrights. Unless otherwise agreed in writing by the Chief Executive Officer of Fifth Street,\noriginal works of authorship fixed in any tangible form that are or were prepared by Employee (alone or jointly with\nothers) within the scope of Employee's employment with Fifth Street shall be deemed “works made for hire” under\ncopyright laws and shall be owned by Fifth Street. Employee understands that any sale, assignment, license, or release\nof such works can only be made by Fifth Street. Employee will do everything reasonably necessary to enable Fifth Street\nor its nominee to protect its rights in such works, including, without limitation, assigning the copyright and all rights,\nthroughout the world, in and to the work product to Fifth Street and hereby assigns to Fifth Street all such copyright and\nrights as of the date hereof.\n9.\nCompany's Property. Upon termination of Employee's employment with the Company, regardless of\nthe reason (whether voluntary or involuntary), Employee agrees immediately to surrender to Fifth Street all property of\nthe Company in Employee's possession, control, or custody, including, but not limited to, the equipment, computers,\nsoftware, credit cards, books, records, reports, files, manuals, literature, the work product of Employee and all other\nCompany employees and all property containing Confidential or Protected Information (including all originals, summaries,\nportions, and copies).\n7\n10.\nNondisparagement. Employee agrees that, during and at any time after Employee’s employment with\nthe Company, regardless of the reason (whether voluntary or involuntary), Employee will not, directly or indirectly,\nthrough any agent or affiliate, make any comments or criticisms (whether of a professional or personal nature) to any\nindividual or other third party or entity regarding the Company (or the terms of any agreement or arrangement of the\nCompany) or any of its respective affiliates, members, partners or employees, disparaging the business or reputation of\nthe Company or any of its affiliates, members, partners or employees.\n11.\nRemedies. Employee acknowledges and agrees that monetary damages may not be a sufficient\nremedy for any breach of this Agreement, including, without limitation, a breach of the covenants contained in\nParagraphs 2 and 3 or the unauthorized use or disclosure of Confidential or Protected Information, and that the Company\nshall be entitled, without waiving any other rights or remedies, to obtain injunctive or equitable relief as may be deemed\nproper by a court of competent jurisdiction, without obligation to post any bond. The periods of time during which\nEmployee is in violation of the covenants set forth in this Agreement shall be added to the Investor Restricted Period, the\nCustomer Restricted Period, the Employee Restricted Period and the Non-Competition Period, as applicable.\n12.\nReasonableness. Employee acknowledges and agrees that the restrictions contained in this\nAgreement are reasonable and will not prevent him from finding other employment if his employment with the Company\nends. Employee also acknowledges and agrees that if Employee uses the Company's confidential information, or\ncompetes with the Company in violation of the terms of this Agreement, that he will be causing the Company irreparable\nharm.\n13.\nSeverability; Revision by Court. The provisions of this Agreement shall be deemed severable and the\ninvalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If\nany provision in this Agreement is found by a court of competent jurisdiction to be unenforceable or unreasonable as\nwritten, Employee and Fifth Street hereby specifically and irrevocably authorize and request said court to revise the\nunenforceable or unreasonable provisions in a manner that shall result in the provision being enforceable while remaining\nas similar as legally possible to the purpose and intent of the original.\n14.\nEntire Agreement. This Agreement constitutes the entire agreement and understanding of the parties\nhereto with respect to the obligations addressed herein and supersedes all prior or contemporaneous oral or written\nagreements regarding the subject matter hereof.\n15.\nAmendments; Waivers. Any addition or modification to this Agreement, or waiver of any provision\nhereof, must be in writing and signed by the parties hereto.\n8\n16.\nSuccessors and Assigns. Employee understands and agrees that he cannot assign or otherwise\ntransfer any of his obligations under this Agreement. Employee understands and agrees that Fifth Street may, at its\noption, assign or transfer its rights under this Agreement to another organization or individual. Employee understands\nand agrees that if there is an assignment or transfer of Fifth Street's rights under this Agreement, then this Agreement will\ncontinue to be effective, will continue to bind Employee, and will inure to the benefit of the organization or individual to\nwhom the transfer or assignment is made.\n17.\nChoice of Law. This Agreement shall be governed by, construed, and enforced in accordance with the\nlaws of the State of Connecticut, excluding its conflicts of laws principles.\n18.\nJurisdiction. Any action or proceeding seeking to enforce any provision of, or based on any right\narising out of, this Agreement may be brought against either party only in the courts of the State of Connecticut located in\nFairfield County. Both parties hereby irrevocably consent to the jurisdiction of any such court in any such action or\nproceeding and waive any objection to venue laid in such courts.\n19.\nCounterparts. This Agreement may be executed in any number of counterparts, each of which shall be\ndeemed an original but all of which together shall constitute one and the same instrument. This Agreement may be\nexecuted by facsimile signature.\n20.\nEmployee's Acknowledgment of Voluntary Agreement. Employee acknowledges that he has\ncarefully read this Agreement, that he has had the opportunity to receive advice with respect to this Agreement by\ncounsel of his choice, that he understands its terms and its legal effect, and that Employee has entered into this\nAgreement voluntarily and not in reliance upon any promises or representations made by the Company other than those\nmade in this Agreement itself.\n21.\nNo Change in Status. Nothing contained in the Agreement shall affect or in any way change\nEmployee's at-will employment status.\n22.\nSection 409A.\n(a)\nPotential Six-Month Delay. Notwithstanding any other provisions of the Agreement, any payment that\nmay be provided under this Agreement that the Company reasonably determines is subject to Section 409A(a)(2)(B)(i) of\nthe Code shall not be paid or payment commenced until six (6) months after the date of Employee’s termination of\nemployment (or, if earlier, Employee’s death). On the earliest date on which such payments can be commenced without\nviolating the requirements of Section 409A(a)(2)(B)(i) of the Code, Employee shall be paid, in a single cash lump sum, an\namount equal to the aggregate amount of all payments delayed pursuant to the preceding sentence.\n9\n(b)\nSavings Clause. It is intended that any amounts payable under this Agreement shall either be exempt\nfrom or comply with Section 409A of the Code (including Treasury regulations and other published guidance related\nthereto) so as not to subject Employee to payment of any additional tax, penalty or interest imposed under Section 409A\nof the Code. The provisions of this Agreement shall be construed and interpreted to avoid the imputation of any such\nadditional tax, penalty or interest under Section 409A of the Code yet preserve (to the nearest extent reasonably\npossible) the intended benefit payable to Employee. Notwithstanding the foregoing, the Company makes no\nrepresentation or warranty and shall have no liability to Employee or to any other person if any of the provisions of this\nAgreement are determined to constitute deferred compensation subject to Section 409A, but that do not satisfy an\nexemption from, or the conditions of, that section.\n[Signature page follows]\n10\nBy signing below, the Company and Employee, intending to be legally bound, agree to the terms of this\nAgreement as listed and stated above.\nFSC CT, Inc.\nDated:\nBy:\nName:\nTitle:\nEmployee:\nDated:\n11\nEXHIBIT A\nAs used in this Agreement, “Cause” shall have the meaning ascribed to it in [the Letter Agreement]/[FOR MR.\nOWENS ONLY: the Amended Offer Letter].
+480fcdb1b3d02989c11ace2c69bc9ba6.pdf	effective_date jurisdiction party	EX-10 .5 15 a2215704zex-10 _5.htm EX-10 .5\nEXHIBIT B\nCONTROL4 CORPORATION\nCONFIDENTIAL INFORMATION AND\nINTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT\nAs a condition of my relationship with Control4 Corporation, its subsidiaries, affiliates, successors or assigns (together the “Company”), and for other valuable consideration, the receipt and sufficiency of which is hereby\nacknowledged, I agree to the following terms under this Confidential Information and Intellectual Property Assignment Agreement (the “Intellectual Property Agreement”):\n1.\nConfidential Information.\n(a)\nCompany Information. I agree at all times during the term of my relationship with the Company whether commenced prior to or upon the date of this Agreement (my “Relationship with the\nCompany”) and thereafter to hold in strictest confidence, and not to use except for the benefit of the Company or to disclose to any person, firm or corporation without written authorization of the Board of Directors of the Company, any\nConfidential Information of the Company. I understand that “Confidential Information” means any Company proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans,\nproducts, services, suppliers, prices and costs, customer lists and customers (including, but not limited to, customers of the Company on whom I called or with whom I became acquainted during the term of my Relationship with the\nCompany), markets, works of original authorship, photographs, negatives, digital images, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information,\nmarketing, finances or other business information disclosed to me by the Company either directly or indirectly in writing, orally or by drawings or observation of parts or equipment. I understand that Confidential Information includes,\nbut is not limited to, information pertaining to any aspect of the Company’s business which is either information not known by actual or potential competitors of the Company or other third parties not under confidentiality obligations to\nthe Company, or is otherwise proprietary information of the Company or its customers or suppliers, whether of a technical nature or otherwise. I further understand that Confidential Information does not include any of the foregoing items\nwhich has become publicly known and made generally available through no wrongful act of mine or of others who were under confidentiality obligations as to the item or items involved.\n(b)\nOther Employer Information. I agree that I will not, during my Relationship with the Company, improperly use or disclose any proprietary information or trade secrets of any former or\nconcurrent employer or other person or entity and that I will not bring onto the premises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in\nwriting by such employer, person or entity.\n(c)\nThird Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on the\nCompany’s part to maintain the confidentiality of such information and to use it\nonly for certain limited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out my work\nfor the Company consistent with the Company’s agreement with such third party.\n2.\nIntellectual Property.\n(a)\nAssignment of Intellectual Property. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and hereby\nassign to the Company, or its designee, all my right, title, and interest in and to any original works of authorship, inventions, concepts, improvements or trade secrets, whether or not patentable or registrable under copyright or similar laws,\nwhich I may solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the period of my Relationship with the Company (collectively referred to as “Intellectual\nProperty”) and which (i) are developed using the equipment, supplies, facilities or Confidential Information of the Company, (ii) result from or are suggested by work performed by me for the Company, or (iii) relate to the business, or to\nthe actual or demonstrably anticipated research or development of the Company. The Intellectual Property will be the sole and exclusive property of the Company. I further acknowledge that all original works of authorship which are\nmade by me (solely or jointly with others) within the scope of and during the period of my Relationship with the Company and which are protectable by copyright are “works made for hire,” as that term is defined in the United States\nCopyright Act. To the extent any Intellectual Property is not deemed to be work for hire, then I will and hereby do assign all my right, title and interest in such Intellectual Property to the Company, except as provided in Section 2(e).\n(b)\nPatent and Copyright Registrations. I agree to assist the Company, or its designee, at the Company’s (or its designee’s) expense, in every proper way to secure the Company’s (or its\ndesignee’s) rights in the Intellectual Property and any copyrights, patents or other intellectual property rights relating thereto in any and all countries, including the disclosure to the Company or its designee of all pertinent information and\ndata with respect thereto, the execution of all applications, specifications, oaths, assignments and all other instruments which the Company or its designee shall deem necessary in order to apply for and obtain such rights and in order to\nassign and convey to the Company (or its designee), its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such Intellectual Property, and any copyrights, patents or other intellectual property rights\nrelating thereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after the termination of my Relationship with the Company. If the\nCompany or its designee is unable because of my mental or physical incapacity or for any other reason to secure my assistance in perfecting the rights transferred in this Intellectual Property Agreement, then I hereby irrevocably designate\nand appoint the Company or its designee and its duly authorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully permitted acts\nto further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if executed by me. The designation and appointment of the Company or its designee and its duly authorized\nofficers and agents as my agent and attorney in fact shall be deemed to be coupled with an interest and therefore\n2\nirrevocable. I hereby waive and irrevocably quitclaim to the Company or its designee any and all claims, of any nature whatsoever, which I now or hereafter have for infringement of any and all proprietary rights assigned to the Company\nor such designee.\n(c)\nMaintenance of Records. I agree to keep and maintain adequate and current written records of all Intellectual Property made by me (solely or jointly with others) during the term of my\nRelationship with the Company. The records will be in the form of notes, sketches, drawings, and works of original authorship, photographs, negatives, digital images or any other format that may be specified by the Company. I agree\nnot to remove such records from the Company’s place of business except as expressly permitted by Company policy which may, from time to time, be revised at the sole election of the Company for the purpose of furthering the\nCompany’s business. The records will be available to and remain the sole property of the Company at all times.\n(d)\nIntellectual Property Retained and Licensed. I provide below a list of all original works of authorship, inventions, developments, improvements, and trade secrets which were made by me\nprior to my Relationship with the Company (collectively referred to as “Prior Intellectual Property”), which belong to me (solely or jointly), which relate in any way to the Company’s proposed business, products or research and\ndevelopment, and which are not assigned to the Company hereunder; or, if no such list is attached, I represent that there is no such Prior Intellectual Property. If in the course of my Relationship with the Company, I incorporate into\nCompany property any Prior Intellectual Property owned by me or in which I have an interest, the Company is hereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with the right of\nsublicense) to make, have made, modify, use and sell such Prior Intellectual Property as part of or in connection with such Company property.\nPrior Intellectual Property:\nTitle\nDate\nIdentifying Number\nor Brief Description\n(e)\nException to Assignments. I understand that the provisions of this Intellectual Property Agreement requiring assignment of Intellectual Property to the Company are limited by the\nEmployment Inventions Act, Utah Code Annotated Section 34-39-3, which is attached hereto as Appendix A, and do not apply to any intellectual property that (i) I develop entirely on my own time; and (ii) is not an “employment\ninvention” as such term is defined in the Employment Inventions Act, which I understand to be any invention or part thereof that I conceive, develop, reduce to practice, or create: (x) within the scope of my employment, on the Company’s\ntime, or with the aid, assistance, or use of any of the Company’s property, equipment, facilities, supplies, resources, or intellectual property; or (y) as the result of any work, services, or duties that I perform for the Company that are related\nto the Company’s industry or trade, or that are related to the Company’s current or demonstrably anticipated business, research, or development. Any such intellectual property will be owned entirely by\n3\nme, even if developed by me during the time period in which I am employed by the Company. I will advise the Company promptly in writing of any intellectual property that I believe meet the criteria for exclusion set forth herein and are\nnot otherwise disclosed pursuant to Section 2(d) above.\n(f)\nCompany Property; Return of Company Documents. I acknowledge and agree that I have no expectation of privacy with respect to the Company’s telecommunications, networking or\ninformation processing systems (including, without limitation, stored company files, e-mail messages and voice messages) and that my activity and any files or messages on or using any of those systems may be monitored at any time\nwithout notice. I further agree that any property situated on the Company’s premises and owned by the Company, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by Company personnel\nat any time with or without notice. I agree that, at the time of leaving the employ of the Company, I will deliver to the Company (and will not keep in my possession, recreate or deliver to anyone else) any and all works of original\nauthorship, photographs, negatives, digital images, devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings blueprints, sketches, materials, equipment, other documents or property, or reproductions\nof any aforementioned items developed by me pursuant to my Relationship with the Company or otherwise belonging to the Company, its successors or assigns. In the event of the termination of my Relationship with the Company, I\nagree to sign and deliver the “Termination Certificate” attached hereto as Appendix B.\n3.\nNotification of New Employer. I hereby grant consent to notification by the Company to my concurrent employer, or in the event that I leave the employ of the Company, my new employer or consulting\nclient about my rights and obligations under this Intellectual Property Agreement.\n4.\nNo Solicitation of Employees, Consultants and Other Parties. I agree that during the period of my Relationship with the Company and for a period of twelve (12) months thereafter I shall not directly or\nindirectly solicit, induce, recruit or encourage or take away any person who shall then be employed by the Company (as an employee or consultant) or who shall have been employed by the Company (as an employee or consultant) within\nthe prior nine (9) month period, on behalf of myself or any other person, firm, corporation, association or other entity, directly or indirectly. Further, during my Relationship with the Company and at any time following termination of my\nRelationship with the Company for any reason, with or without cause, I shall not use any Confidential Information of the Company to attempt to negatively influence any of the Company’s clients, suppliers or customers from purchasing\nCompany products or services or providing goods or services to the Company or to solicit or influence or attempt to influence any client, customer or other person either directly or indirectly, to direct his or its purchase of products and/or\nservices or his or its provision of products and/or services to any person, firm, corporation, institution or other entity in competition with the business of the Company.\n5.\nRepresentations. I represent that my performance of all the terms of this Intellectual Property Agreement will not breach any agreement to keep in confidence proprietary information acquired by me in\nconfidence or in trust prior to my Relationship with the Company. I have not entered into, and I agree I will not enter into, any oral or written agreement in conflict\n4\nherewith. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Intellectual Property Agreement. I represent that my performance of all terms of this Agreement as an employee of the\nCompany has not breached and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by me prior or subsequent to the commencement of my Relationship with the Company. I\nacknowledge and agree that I have attached as Exhibit A hereto all agreements (e.g., non-competition agreements, non-solicitation of customers agreements, non-solicitation of employees agreements, confidentiality agreements,\ninventions agreements, etc.) with a current or former employer, or any other person or entity, that may restrict my ability to accept employment with the Company or my ability as an employee or consultant to recruit or engage customers\nor service providers on behalf of the Company, or otherwise relate to or restrict my ability to perform my duties as an employee of the Company or any obligation I may have to the Company.\n6.\nArbitration and Equitable Relief.\n(a)\nArbitration. Except as provided in Section 6(b) below, I agree that any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this\nIntellectual Property Agreement, shall be settled by arbitration to be held in Salt Lake City, Utah, in accordance with the rules then in effect of the American Arbitration Association. The arbitrator may grant injunctions or other relief in\nsuch dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. The Company and I\nshall each pay one-half of the costs and expenses of such arbitration, and each of us shall separately pay our counsel fees and expenses.\n(b)\nEquitable Remedies. Each of the Company and I agree that disputes relating to or arising out of a breach of the covenants contained in this Intellectual Property Agreement would likely\nrequire injunctive relief to maintain the status quo of the parties pending the appointment of an arbitrator pursuant to this Intellectual Property Agreement. The parties hereto also agree that it would be impossible or inadequate to measure\nand calculate the damages from any breach of the covenants contained in this Intellectual Property Agreement prior to resolution of any dispute pursuant to arbitration. Accordingly, if either party claims that the other party has breached\nany covenant of this Intellectual Property Agreement, that party will have available, in addition to any other right or remedy, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or threatened\nbreach and/or to specific performance of any such provision of this Intellectual Property Agreement pending resolution of the dispute through arbitration. The parties further agree that no bond or other security shall be required in\nobtaining such equitable relief and hereby consents to the issuance of such injunction and to the ordering of specific performance. However, upon appointment of an arbitrator, the arbitrator shall review any interim, injunctive relief\ngranted by a court of competent jurisdiction and shall have the discretion, jurisdiction, and authority to continue, expand, or dissolve such relief pending completion of the arbitration of such dispute or controversy. The parties agree that\nany orders issued by the arbitrator may be enforced by any court of competent jurisdiction if necessary to ensure compliance by the parties.\n5\n7.\nGeneral Provisions.\n(a)\nGoverning Law; Consent to Personal Jurisdiction. This Intellectual Property Agreement will be governed by the laws of the State of Utah as they apply to contracts entered into and wholly\nto be performed within such State. I hereby expressly consent to the nonexclusive personal jurisdiction and venue of the state and federal courts located in the federal District of Utah for any lawsuit filed there by either party arising from\nor relating to this Intellectual Property Agreement.\n(b)\nEntire Agreement. This Intellectual Property Agreement sets forth the entire agreement and understanding between the Company and me relating to the subject matter herein and merges all\nprior discussions between us. No modification of or amendment to this Intellectual Property Agreement, nor any waiver of any rights under this Intellectual Property Agreement, will be effective unless in writing signed by the party to be\ncharged. Any subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Intellectual Property Agreement.\n(c)\nSeverability. If one or more of the provisions in this Intellectual Property Agreement is deemed void by law, then the remaining provisions will continue in full force and effect.\n(d)\nSuccessors and Assigns. This Intellectual Property Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be for the benefit of the\nCompany, its successors, and its assigns.\n(e)\nAt Will Relationship. I understand and acknowledge that my Relationship with the Company is and shall continue to be at-will, as defined under applicable law, meaning that either I or the\nCompany may terminate the Relationship at any time for any reason or no reason, without further obligation or liability.\n(f)\nADVICE OF COUNSEL. I ACKNOWLEDGE THAT, IN EXECUTING THIS AGREEMENT, I HAVE HAD THE OPPORTUNITY . TO SEEK THE ADVICE OF INDEPENDENT\nLEGAL COUNSEL, AND I HAVE READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON\nOF THE DRAFTING OR PREPARATION HEREOF.\n(g)\nNot an IRS “Confidential Transaction”. Notwithstanding anything in this Agreement or in any other written or oral understanding or agreement to which the parties hereto are parties or by\nwhich they are bound, either the Company or I (or either of our representatives, agents or employees) may consult any tax advisor regarding the tax treatment and tax structure of the transaction contemplated by this Agreement and may at\nany time disclose to any person, without limitation of any kind, the tax treatment and tax structure of such transaction and all materials (including opinions or other tax analyses) that are provided relating to such treatment or structure. The\npreceding sentence is intended to satisfy the requirements for the transaction contemplated herein to avoid classification as a “confidential transaction” in accordance with Treasury Regulations Section 1.6011 -4(b)(3) and shall be\ninterpreted consistent with such intent.\n6\nThis authorization is not intended to permit disclosure of any other information relating to any transaction contemplated by the Relationship, including (without limitation) (i) any portion of any materials to the extent not related to the tax\ntreatment or tax structure of any such transaction, (ii) the identities of participants or potential participants in any such transaction, (iii) the existence or status of any negotiations, (iv) any pricing or financial information (except to the\nextent such pricing or financial information is related to the tax treatment or tax structure of any such transaction), or (v) any other term or detail not relevant to the tax treatment or the tax structure of any such transaction.\n(h)\nSurvival. The provisions of this Agreement shall survive the termination of the Relationship and the assignment of this Agreement by the Company to any successor in interest or other\nassignee.\n7\nIN WITNESS WHEREOF, the undersigned has executed this Confidential Information and Intellectual Property Assignment Agreement as of March 27, 2003 .\nBy: /s/ William B. West\nName:\nWilliam B. West\nAddress:\nWitness\nBy: /s/ W. Eric Smith\nName:\nW. Eric Smith\nAddress:	EX-10.5 15 a2215704zex-10_5.htm EX-10.5\nEXHIBIT B\nCONTROL4 CORPORATION\nCONFIDENTIAL INFORMATION AND\nINTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT\n \nAs a condition of my relationship with Contiol4 Corporation, its subsidiaries, affiliates, successors or assigns (together the "Company"), and for other valuable consideration, the receipt and sufficiency of which is hereby\nacknowledged, I agree to the following terms under this Confidential Information and Intellectual Property AssignmentAgreement (the ”Intellectual Propem Aggement"):\n1. Confidential Information.\n(a) C ompany Information. I agree at all times during the term of my relationship with the Company whether commenced prior to or upon the date of this Agreement (my "Relationship with the\nCompany”) and thereafter to hold in strictest confidence, and not to use except for the benefit of the Company or to disclose to any person, firm or corporation without written authorization of the Board of Directors of the Company, any\nConfidential Information of the Company. I understand that "Confidential Information" means any Company proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans,\nproducts, services, suppliers, prices and costs, customer lists and customers (including, but not limited to, customers of the Company on whom I called or with whom I became acquainted during the term of my Relationship with the\nCompany), markets, works of original authorship, photographs, negatives, digital images, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information,\nmarketing, finances or other business information disclosed to me by the Company either directly or indirectly in writing, orally or by drawings or observation of parts or equipment I undersmnd that Confidential Information includes,\nbut is not limited to, information pertaining to any aspect of the Company's business which is either information not known by actual or potential competitors of the Company or other third parties not under confidentiality obligations to\nthe Company, or is otherwise proprietary information of the Company or its customers or suppliers, whether of a technical nature or otherwise I further understand that Confidential Information does not include any of the foregoing items\nwhich has become publicly known and made generally available through no wrongful act of mine or of others who were under confidentiality obligations as to the item or items involved\n(b) Other Employer Information. I agree that I will not, during my Relationship with the Company, improperly use or disclose any proprietary information or tiade secrets of any former or\nconcurrent employer or other person or entity and that I will not bring onto the premises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in\nwriting by such employer, person or entity.\n(c) Third Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on the\nCompany's part to mainmin the confidentiality of such information and to use it\nonly for certain limited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out my work\nfor the Company consistent with the Company' s agreement with such third party.\n2. Intellectual Propeg.\n(a) Assignment of Intellectual Property. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and hereby\nassign to the Company, or its designee, all my right, title, and interest in and to any original works of authorship, inventions, concepts, improvements or tiade secrets, whether or not patentable or registiable under copyright or similar laws,\nwhich I may solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the period of my Relationship with the Company (collectively referred to as ”Intellectual\nm") and which (i) are developed using the equipment, supplies, facilities or Confidential Information of the Company, (ii) result from or are suggested by work performed by me for the Company, or (iii) relate to the business, orto\nthe actual or demonstrably anticipated research or development of the Company. The Intellectual Property will be the sole and exclusive property of the Company. I further acknowledge that all original works of authorship which are\nmade by me (solely or jointly with others) within the scope of and during the period of my Relationship with the Company and which are protectable by copyright are ”works made for hire," as that term is defined in the United States\nCopyright Act. To the extent any Intellectual Property is not deemed to be work for hire, then I will and hereby do assign all my right, title and interest in such Intellectual Property to the Company, except as provided in Section 2(e).\n(b) Patent and Copyright Registrations. I agree to assist the Company, or its designee, at the Company’s (orits designee’s) expense, in every proper way to secure the Company’s (or its\ndesignee's) rights in the Intellectual Property and any copyrights, patents or other intellectual property rights relating thereto in any and all countries, including the disclosure to the Company or its designee of all pertinent information and\ndam with respect thereto, the execution of all applications, specifications, oaths, assignments and all other instruments which the Company or its designee shall deem necessary in order to apply for and obtain such rights and in orderto\nassign and convey to the Company (or its designee), its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such Intellectual Property, and any copyrights, patents or other intellectual property rights\nrelating thereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after the termination of my Relationship with the Company. If the\nCompany or its designee is unable because of my mental or physical incapacity or for any other reason to secure my assistance in perfecting the rights tiansferred in this Intellectual Property Agreement, then I hereby irrevocably designate\nand appoint the Company or its designee and its duly authorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully permitted acts\nto further the prosecution and issuance of letters patent or copyright registiations thereon with the same legal force and effect as if executed by me. The designation and appointment of the Company or its designee and its duly authorized\nofficers and agents as my agent and attorney in fact shall be deemed to be coupled with an interest and therefore\nirrevocable. I hereby waive and irrevocably quitclaim to the Company or its designee any and all claims, of any nature whatsoever, which I now or hereafter have for infringement of any and all proprietary rights assigned to the Company\nor such designee.\n(c) Maintenance of Records. 1 agree to keep and maintain adequate and current written records of all Intellectual Property made by me (solely or jointly with others) during the term of my\nRelationship with the Company. The records will be in the form of notes, sketches, drawings, and works of original authorship, photographs, negatives, digital images or any other format that may be specified by the Company. I agree\nnot to remove such records from the Company’s place of business except as expressly permitted by Company policy which may, from time to time, be revised at the sole election of the Company for the purpose of furthering the\nCompany's business. The records will be available to and remain the sole property of the Company at all times.\n(d) Intellectual Property Retained and Licensed. I provide below a list of all original works of authorship, inventions, developments, improvements, and trade secrets which were made by me\nprior to my Relationship with the Company (collectively referred to as ”Prior Intellectual Propem"), which belong to me (solely or jointly), which relate in any way to the Company's proposed business, products or research and\ndevelopment, and which are not assigned to the Company hereunder: or, if no such list is attached, I represent that there is no such Prior Intellectual Property. If in the course of my Relationship with the Company, I incorporate into\nCompany property any Prior Intellectual Property owned by me or in whichI have an interest, the Company is hereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with the right of\nsublicense) to make, have made, modify, use and sell such Prior Intellectual Property as part of or in connection with such Company property.\nPrior Intellectual Property:\nidenmying Number\nTitle Dale nr Brief Descriptjnn\n(e) Exception to Assignments. I understand that the provisions of this Intellectual Property Agreement requiring assignment of Intellectual Property to the Company are limited by the\nEmployment Inventions Act, Utah Code Annomted Section 34-39-3, which is attached hereto as Agpendix A and do not apply to any intellectual property that (i) I develop entirely on my own time,- an_d (ii) is not an "employment\ninvention" as such term is defined in the Employment Inventions Act, which I understand to be any invention or part thereof that I conceive, develop, reduce to practice, or create: (x) within the scope of my employment, on the Company's\ntime, or with the aid, assistance, or use of any of the Company's property, equipment, facilities, supplies, resources, or intellectual property; or (y) as the result of any work, services, or duties that I perform for the Company that are related\nto the Company’s industry or trade, or that are related to the Company's current or demonstrably anticipated business, research, or development Any such intellectual property will be owned entirely by\nme, even if developed by me during the time period in which I am employed by the Company. I will advise the Company promptly in writing of any intellectual property that I believe meet the criteria for exclusion set forth herein and are\nnot otherwise disclosed pursuant to Section 2(d) above.\n(f) Company Property; Return of Company Documents. I acknowledge and agree that I have no expectation of privacy with respect to the Company’s telecommunications, networking or\ninformation processing systems (including, without limimtion, stored company files, e-mail messages and voice messages) and that my activity and any files or messages on or using any of those systems may be monitored at any time\nwithout notice. I further agree that any property situated on the Company’s premises and owned by the Company, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by Company personnel\nat any time with or without notice. I agree that, at the time of leaving the employ of the Company, I will deliverto the Company (and will not keep in my possession, recreate or deliver to anyone else) any and all works of original\nauthorship, photographs, negatives, digiml images, devices, records, dam, notes, reports, proposals, lists, correspondence, specifications, drawings blueprints, sketches, materials, equipment, other documents or property, or reproductions\nof any aforementioned items developed by me pursuant to my Relationship with the Company or otherwise belonging to the Company, its successors or assigns. In the event of the termination of my Relationship with the Company, I\nagree to sign and deliver the "Termination Certificate" atmhed hereto as Appendix B.\n3. Notification of New Employer. I hereby grant consent to notification by the Company to my concurrent employer, or in the event thatI leave the employ of the Company, my new employer or consulting\nclient about my rights and obligations under this Intellectual Property Agreement.\n4. No Solicimtion of Employees Consulmnts and Other Parties. 1 agree that during the period of my Relationship with the Company and for a period of twelve (12) months thereafterI shall not directly or\nindirectly solicit, induce, recruit or encourage or take away any person who shall then be employed by the Company (as an employee or consultant) or who shall have been employed by the Company (as an employee or consulmnt) within\nthe prior nine (9) month period, on behalf of myself or any other person, firm, corporation, association or other entity, directly or indirectly. Further, during my Relationship with the Company and at any time following termination of my\nRelationship with the Company for any reason, with or without cause, I shall not use any Confidential Information of the Company to attempt to negatively influence any of the Company's clients, suppliers or customers from purchasing\nCompany products or services or providing goods or services to the Company or to solicit or influence or attempt to influence any client, customer or other person either directly or indirectly, to direct his or its purchase of products and/or\nservices or his or its provision of products andJor services to any person, firm, corporation, institution or other entity in competition with the business of the Company.\n5. Representations. I represent that my performance of all the terms of this Intellectual Property Agreement will not breach any agreement to keep in confidence proprietary information acquired by me in\nconfidence or in trust prior to my Relationship with the Company. I have not entered into, and I agree I will not enter into, any oral or written agreement in conflict\nherewith. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Intellectual Property Agreement. I represent that my performance of all terms of this Agreement as an employee of the\nCompany has not breached and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by me prior or subsequent to the commencement of my Relationship with the Company. I\nacknowledge and agree that I have attached as Exhibit A hereto all agreements (e.g., non-competition agreements, non- solicitation of customers agreements, non-solicimtion of employees agreements, confidentiality agreements,\ninventions agreements, etc.) with a current or former employer, or any other person or entity, that may restrict my ability to accept employment with the Company or my ability as an employee or consultant to recruit or engage customers\nor service providers on behalf of the Company, or otherwise relate to or restrict my ability to perform my duties as an employee of the Company or any obligationI may have to the Company.\n6. Arbitration and Egg imble Relief.\n(a) Arbitration. Except as provided in Section 6(b) below, I agree that any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this\nIntellectual Property Agreement, shall be settled by arbitration to be held in Salt Lake City, Umh, in accordance with the rules then in effect of the American Arbitration Association. The arbitrator may grant injunctions or other relief in\nsuch dispute or controversy The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator s decision in any court having jurisdiction The Company and I\nshall each pay one-half of the costs and expenses of such arbitration, and each of us shall separately pay our counsel fees and expenses.\n(b) Equitable Remedies. Each of the Company and I agree that disputes relating to or arising out of a breach of the covenants contained in this Intellectual Property Agreement would likely\nrequire injunctive relief to mainmin the status quo of the parties pending the appointment of an arbitrator pursuant to this Intellectual Property Agreement. The parties hereto also agree that it would be impossible or inadequate to measure\nand calculate the damages from any breach of the covenants conmined in this Intellectual Property Agreement prior to resolution of any dispute pursuant to arbitration. Accordingly, if either party claims that the other party has breached\nany covenant of this Intellectual Property Agreement, that party will have available, in addition to any other right or remedy, the right to obmin an injunction from a court of competent jurisdiction restraining such breach or threatened\nbreach and/or to specific performance of any such provision of this Intellectual Property Agreement pending resolution of the dispute through arbitration. The parties further agree that no bond or other security shall be required in\nobtaining such equitable relief and hereby consents to the issuance of such injunction and to the ordering of specific performance. However, upon appointment of an arbitrator, the arbitrator shall review any interim, injunctive relief\ngranted by a court of competent jurisdiction and shall have the discretion, jurisdiction, and authority to continue, expand, or dissolve such relief pending completion of the arbitration of such dispute or controversy. The parties agree that\nany orders issued by the arbitrator may be enforced by any court of competent jurisdiction if necessary to ensure compliance by the parties.\n7. G eneral Provisions.\n(a) G overning Law; Consent to Personal Jurisdiction This Intellectual Property Agreement will be governed by the laws of the State of Utah as they apply to contracts entered into and wholly\nto be performed within such Smte. I hereby expressly consent to the nonexclusive personal jurisdiction and venue of the state and federal courts located in the federal District of Utah for any lawsuit filed there by either party arising from\nor relating to this Intellectual Property Agreement.\n(b) Entire Agreement. This Intellectual Property Agreement sets forth the entire agreement and undersmnding between the Company and me relating to the subject matter herein and merges all\nprior discussions between us. No modification of or amendment to this Intellectual Property Agreement, nor any waiver of any rights under this Intellectual Property Agreement, will be effective unless in writing signed by the party to be\ncharged. Any subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Intellectual Property Agreement.\nto) Severability. If one or more of the provisions in this Intellectual Property Agreement is deemed void by law, then the remaining provisions will continue in full force and effect.\n(d) Successors and Assigns. This Intellectual Property Agreement will be binding upon my heirs, executors, administrators and other legal represenmtives and will be for the benefit of the\nCompany, its successors, and its assigns.\n(e) At Will Relationship. I understand and acknowledge that my Relationship with the Company is and shall continue to be at-will, as defined under applicable law, meaning that either I or the\nCompany may terminate the Relationship at any time for any reason or no reason, without further obligation or liability.\n(f) ADVICE OF COUNSEL. IACKNOWLEDGE THAT, IN EXECUTING THIS AGREEMENT, I HAVE HAD THE OPPORTUNITY. TO SEEK THE ADVICE OF INDEPENDENT\nLEGAL COUNSEL, AND I HAVE READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON\nOF THE DRAFTING OR PREPARATION HEREOF.\n(g) Not an IRS " C onfidential Transaction" . Notwithstanding anything in this Agreement or in any other written or oral understanding or agreement to which the parties hereto are parties or by\nwhich they are bound, either the Company or I (or either of our represenmtives, agents or employees) may consult any tax advisor regarding the m treatment and tax structure of the transaction contemplated by this Agreement and may at\nany time disclose to any person, without limitation of any kind, the m treatment and tax structure of such transaction and all materials (including opinions or othertax analyses) that are provided relating to such treatment or structure. The\npreceding sentence is intended to satisfy the requirements for the transaction contemplated herein to avoid classification as a "confidential transaction" in accordance with Treasury Regulations Section 1.6011-4tb)(3) and shall be\ninterpreted consistent with such intent.\nThis authorization is not intended to permit disclosure of any other information relating to any transaction contemplated by the Relationship, including (without limitation) ti) any portion of any materials to the extent not related to the m\ntreatment ortax structure of any such transaction, (ii) the identities of participants or potential participants in any such transaction, (iii) the existence or status of any negotiations, (iv) any pricing or financial information (except to the\nextent such pricing or financial information is related to the tax treatment or mx structure of any such transaction), or (v) any other term or detail not relevant to the tax treatment or the tax structure of any such transaction.\n(h) Survival. The provisions of this Agreement shall survive the termination of the Relationship and the assignment of this Agreement by the Company to any successor in interest or other\nassignee.\nIN WITNESS WHEREOF, the undersigned has executed this Confidential Information and Intellectual Property Assignment Agreement as of March 27, 2003.\nBy: /5/ William B. West\nName: William B. West\nA ddress:\nWitness\nBy: /s/W. Eric Smith\nName: W. Eric Smith\nAddress:	EX-10.5 15 a2215704zex-10 5.htm EX-10.5\nEXHIBIT B\nCONTROL4 CORPORATION\nCONFIDENTIAL INFORMATION AND\nINTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT\nAs a condition of my relationship with Control4 Corporation, its subsidiaries, affiliates successors or assigns (together the "Company"), and for other valuable consideration, the receipt and sufficiency of which is hereby\nacknowledged, I agree to the following terms under this Confidential Information and Intellectual Property Assignment Agreement (the "Intellectual Property Agreement"):\n1.\nConfidential Information.\n(a)\nCompany Information. I agree at all times during the term of my relationship with the Company whether commenced prior or upon the date of this greement (my "Relationship with the\nCompany") and thereafter to hold in strictest confidence, and not to use except for the benefit of the Company or to disclose to any person, firm or corporation without written authorization of the Board of Directors of the Company, any\nConfidential Information of the Company. I understand that "Confidential Information" means any Company proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans,\nproducts, services, suppliers, prices and costs, customer lists and customers (including, but not limited to, customers of the Company on whom I called or with whom I became acquainted during the term of my Relationship with the\nCompany), markets, works of original authorship, photographs, negatives, digital images, software, developments, inventions, processes, formulas, technology, designs drawings, engineering, hardware configuration information,\nmarketing, finances or other business information disclosed to me by the Company either directly or indirectly in writing, orally or by drawings or observation of parts or equipment. I understand that Confidential Information includes,\nbut is not limited to, information pertaining to any aspect of the Company's business which is either information not known by actual or potential competitors of the Company or other third parties not under confidentiality obligations to\nthe\nCompany, or is otherwise proprietary information of the Company or its customers or suppliers whether of a technical nature or otherwise. I further understand that Confidential Information does not include any of the foregoing items\nwhich has become publicly known and made generally available through no wrongful act of mine or of others who were under confidentiality obligations as to the item or items involved.\n(b)\nOther Employer Information. I agree that I will not, during my Relationship with the Company, improperly use or disclose any proprietary information or trade secrets of any former\nor\nconcurrent employer or other person or entity and that I will not bring onto the premises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented\nto\nin\nwriting by such employer, person or entity.\n(c)\nThird Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on the\nCompany's part to maintain the confidentiality of such information and to use it\nonly for certain limited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, fir or corporation or to use it except as necessary in carrying out my work\nfor the Company consistent with the Company's agreement with such third party.\n2.\nIntellectual Property\n(a)\nAssignment of Intellectual Property. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and hereby\nassign to the Company, or its designee, all my right title, and interest in and to any original works of authorship, inventions, concepts, improvements or trade secrets, whether or not patentable or registrable under copyright or similar laws,\nwhich I may solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the period of my Relationship with the Company (collectively referred to as "Intellectual\nProperty") and which (i) are developed using the equipment, supplies, facilities or Confidential Information of the Company, (ii) result from or are suggested by work performed by me for the Company, or (iii) relate to the business, or to\nthe actual or demonstrably anticipated research or development of the Company. The Intellectual Property will be the sole and exclusive property of the Company. I further acknowledge that all original works of authorship which are\nmade by me (solely or jointly with others) within the scope of and during the period of my Relationship with the Company and which are protectable by copyright are "works made for hire," as that term is defined in the United States\nCopyright Act. To the extent any Intellectual Property is not deemed to be work for hire, then I will and hereby do assign all my right, title and interest in such Intellectual Property to the Company, except as provided in Section 2(e).\n(b)\nPatent and Copyright Registrations. I agree to assist the Company, or its designee, at the Company's (or its designee's) expense, in every proper way to secure the Company's (or\nits\ndesignee's) rights in the Intellectual Property and any copyrights, patents or other intellectual property rights relating thereto in any and all countries, including the disclosure to the Company or its designee of all pertinent information and\ndata with respect thereto, the execution of all applications, specifications, oaths, assignments and all other instruments which the Company or its designee shall deem necessary in order to apply for and obtain such rights and in order\nto\nassign and convey to the Company (or its designee), its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such Intellectual Property, and any copyrights, patents or other intellectual property rights\nrelating thereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after the termination of my Relationship with the Company. If the\nCompany or its designee is unable because of my mental or physical incapacity or for any other reason to secure my assistance in perfecting the rights transferred in this Intellectual Property Agreement, then hereby irrevocably designate\nand appoint the Company or its designee and its duly authorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully permitted acts\nto\nfurther the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if executed by me. The designation and appointment of the Company or its designee and its duly authorized\nofficers and agents as my agent and attomey in fact shall be deemed to be coupled with an interest and therefore\n2\nirrevocable. I hereby waive and irrevocably quitclaim to the Company or its designee any and all claims, of any nature whatsoever, which I now or hereafter have for infringement of any and all proprietary rights assigned to the Company\nor such designee\n(c)\nMaintenance of Records. I agree to keep and maintain adequate and current written records of all Intellectual Property made by me (solely or jointly with others) during the term of my\nRelationship with the Company. The records will be in the form of notes, sketches, drawings, and works of original authorship, photographs, negatives digital images or any other format that may be specified by the Company. I agree\nnot to remove such records from the Company's place of business except as expressly permitted by Company policy which may, from time to time, be revised at the sole election of the Company for the purpose of furthering the\nCompany's business. The records will be available to and remain the sole property of the Company at all times.\n(d)\nIntellectual Property Retained and Licensed. I provide below a list of all original works of authorship, inventions, developments, improvements, and trade secrets which were made\nby\nme\nprior to my Relationship with the Company (collectively referred to as "Prior Intellectual Property") which belong to me (solely or jointly), which relate in any way to the Company's proposed business, products or research\nand\ndevelopment, and which are not assigned to the Company hereunder; or, if no such list is attached, I represent that there is no such Prior Intellectual Property. If in the course of my Relationship with the Company, I incorporate into\nCompany property any Prior Intellectual Property owned by me or in which I have an interest, the Company is hereby granted and shall have a nonexclusive, royalty-free irrevocable, perpetual, worldwide license (with the right\nof\nsublicense) to make, have made, modify, use and sell such Prior Intellectual Property as part of or in connection with such Company property.\nPrior Intellectual Property:\nIdentifying Number\nTitle\nBrief Description\n(e)\nException to Assignments. I understand that the provisions of this Intellectual Property Agreement requiring assignment of Intellectual Property to the Company are limited\nby\nthe\nEmployment Inventions Act, Utah Code Annotated Section 34-39-3, which is attached hereto as Appendix A and do not apply to any intellectual property that (i) I develop entirely on my own time; and (ii) is not "employment\ninvention" as such term is defined in the Employment Inventions Act, which I understand to be any invention or part thereof that I conceive develop, reduce to practice, or create (x) within the scope of my employment, on the Company's\ntime, or with the aid, assistance, or use of any of the Company's property, equipment, facilities, supplies, resources, or intellectual property; or (y) as the result of any work, services, or duties that I perform for the Company that are related\nto the Company's industry or trade, or that are related to the Company's current or demonstrably anticipated business, research, or development Any such intellectual property will be owned entirely by\n3\nme,\neven if developed by me during the time period in which I am employed by the Company. I will advise the Company promptly in writing of any intellectual property that I believe meet the criteria for exclusion set forth herein and are\nnot otherwise disclosed pursuant to Section 2(d) above.\n(f)\nCompany Property; Return of Company Documents. I acknowledge and agree that I have no expectation of privacy with respect to the Company's telecommunications, networking or\ninformation processing systems (including, without limitation, stored company files, e-mail messages and voice messages) and that my activity and any files or messages on or using any of those systems may be monitored at any time\nwithout notice. I further agree that any property situated on the Company's premises and owned by the Company, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by Company personnel\nat\nany time with or without notice. I agree that at the time of leaving the employ of the Company, I will deliver to the Company (and will not keep in my possession, recreate or deliver to anyone else) any and all works of original\nauthorship, photographs, negatives digital images, devices, records data, notes, reports, proposals lists, correspondence, specifications, drawings blueprints, sketches, materials, equipment, other documents or property, or reproductions\nof\nany aforementioned items developed by me pursuant to my Relationship with the Company or otherwise belonging to the Company, its successors or assigns. In the event of the termination of my Relationship with the Company,\nI\nagree to sign and deliver the "Termination Certificate" attached hereto as Appendix B.\n3.\nNotification of New Employer I hereby grant consent to notification by the Company to my concurrent employer, or in the event that I leave the employ of the Company, my new employer or consulting\nclient about my rights and obligations under this Intellectual Property Agreement.\n4.\nNO Solicitation of Employees, Consultants and Other Parties I agree that during the period of my Relationship with the Company and for a period of twelve (12) months thereafter I shall not directly or\nindirectly solicit, induce, recruit or encourage or take away any person who shall then be employed by the Company (as an employee or consultant) or who shall have been employed by the Company (as an employee or consultant) within\nthe prior nine (9) month period, on behalf of myself or any other person, firm, corporation, association or other entity, directly or indirectly. Further, during my Relationship with the Company and at any time following termination of my\nRelationship with the Company for any reason, with or without cause, I shall not use any Confidential Information of the Company to attempt to negatively influence any of the Company's clients, suppliers or customers from purchasing\nCompany products or services or providing goods or services to the Company or to solicit or influence or attempt to influence any client, customer or other person either directly or indirectly, to direct his or its purchase of products and/or\nservices or his or its provision of products and/or services to any person, firm, corporation, institution or other entity in competition with the business of the Company.\n5.\nRepresentations I represent that my performance of all the terms of this Intellectual Property Agreement will not breach any agreement to keep in confidence proprietary information acquired by\nme\nin\nconfidence or in trust prior to my Relationship with the Company. I have not entered into, and I agree I will not enter into, any oral or written agreement in conflict\n4\nherewith. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Intellectual Property Agreement. I represent that my performance of all terms of this A greement as an employee of the\nCompany has no breached and will no breach any agreement to keep in confidence proprietary information, knowledge or data acquired by me prior or subsequent to the commencement of my Relationship with the Company. I\nacknowledge and agree that I have attached as Exhibit A hereto all agreements (e.g., non-competition agreements, non-solicitation of customers agreements, -solicitation of employees agreements, confidentiality agreements,\ninventions agreements, etc.) with a current or former employer, or any other person or entity, that may restrict my ability to accept employment with the Company or my ability as an employee or consultant to recruit or engage customers\nor service providers on behalf of the Company, or otherwise relate to or restrict my ability to perform my duties as an employee of the Company or any obligation I may have to the Company.\n6.\nArbitration and Equitable Relief\n(a)\nArbitration. Except as provided in Section 6(b) below, I agree that any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this\nIntellectual Property Agreement, shall be settled by arbitration to be held in Salt Lake City, Utah, in accordance with the rules then in effect of the American Arbitration Association. The arbitrator may grant injunctions or other relief in\nsuch dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator's decision in any court having jurisdiction. The Company and I\nshall each pay one-half of the costs and expenses of such arbitration, and each of us shall separately pay our counsel fees and expenses.\n(b)\nEquitable Remedies. Each of the Company and I agree that disputes relating to or arising out of a breach of the covenants contained in this Intellectual Property Agreement would likely\nrequire injunctive relief to maintain the status quo of the parties pending the appointment of an arbitrator pursuant to this Intellectual Property Agreement. The parties hereto also agree that it would be impossible or inadequate to measure\nand calculate the damages from any breach of the covenants contained in this Intellectual Property Agreement prior to resolution of any dispute pursuant to arbitration. Accordingly, if either party claims that the other party has breached\nany covenant of this Intellectual Property Agreement, that party will have available, in addition to any other right or remedy, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or threatened\nbreach\nand/or to specific performance of any such provision of this Intellectual Property Agreement pending resolution of the dispute through arbitration. The parties further agree that no bond or other security shall be required in\nobtaining such equitable relief and hereby consents to the issuance of such injunction and to the ordering of specific performance. However, upon appointment of an arbitrator, the arbitrator shall review any interim, injunctive relief\ngranted by court of competent jurisdiction and shall have the discretion, jurisdiction, and authority to continue, expand, or dissolve such relief pending completion of the arbitration of such dispute or controversy. The parties agree that\nany orders issued by the arbitrator may be enforced by any court of competent jurisdiction if necessary to ensure compliance by the parties.\n5\n7.\nGeneral Provisions\n(a)\nGoverning Law; Consent to Personal Jurisdiction. This Intellectual Property Agreement will be governed by the laws of the State of Utah as they apply to contracts entered into and wholly\nto be performed within such State. I hereby expressly consent to the nonexclusive personal jurisdiction and venue of the state and federal courts located in the federal District of Utah for any lawsuit filed there by either party arising\nfrom\nor relating to this Intellectual Property Agreement.\n(b)\nEntire Agreement. This Intellectual Property Agreement sets forth the entire agreement and understanding between the Company and me relating to the subject matter herein and merges\nall\nprior discussions between us. No modification of or amendment to this Intellectual Property Agreement, nor any waiver of any rights under this Intellectual Property Agreement, wil be effective unless in writing signed by the party to be\ncharged. Any subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Intellectual Property Agreement.\n(c)\nSeverability. If one or more of the provisions in this Intellectual Property Agreement is deemed void by law, then the remaining provisions will continue in full force and effect.\n(d)\nSuccessors and Assigns. This Intellectual Property Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be for the benefit\nof\nthe\nCompany its successors, and its assigns.\n(e)\nAt Will Relationship. I understand and acknowledge that my Relationship with the Company is and shall continue to be at-will, as defined under applicable law, meaning that either I or the\nCompany may terminate the Relationship at any time for any reason or no reason, without further obligation or liability.\n(f)\nADVICE OF COUNSEL. IACKNOWLEDGE THAT, IN EXECUTING THIS AGREEMENT, HAVE HAD THE OPPORTUNITY. TO SEEK THE ADVICE OF INDEPENDENT\nLEGAL COUNSEL AND HAVE READ UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON\nOF THE DRAFTING OR PREPARATION HEREOF.\n(g)\nNot an IRS Confidential Transaction". Notwithstanding anything in this Agreement or in any other written or oral understanding or agreement to which the parties hereto are parties or by\nwhich they are bound, either the Company or (or either of our representatives, agents or employees) may consult any tax advisor regarding the tax treatment and tax structure of the transaction contemplated by this Agreement and may\nat\nany time disclose to any person, without limitation of any kind, the tax treatment and tax structure of such transaction and all materials (including opinions or other tax analyses) that are provided relating to such treatment or structure. The\npreceding sentence is intended to satisfy the requirements for the transaction contemplated herein to avoid classification as a "confidential transaction" in accordance with Treasury Regulations Section 1.6011-4(b)(3) and shall be\ninterpreted consistent with such intent.\n6\nThis authorization is not intended to permit disclosure of any other information relating to any transaction contemplated by the Relationship, including (without limitation) (i) any portion of any materials to the extent not related to the tax\ntreatment or tax structure of any such transaction, (ii) the identities of participants or potential participants in any such transaction, (iii) the existence or status of any negotiations, (iv) any pricing or financial information (except to the\nextent such pricing or financial information is related to the tax treatment or tax structure of any such transaction), or (v) any other term or detail not relevant to the tax treatment or the tax structure of any such transaction.\n(h)\nSurvival. The provisions of this Agreement shall survive the termination of the Relationship and the assignment of this Agreement by the Company to any successor in interest or\nother\nassignee.\n7\nIN WITNESS WHEREOF, the undersigned has executed this Confidential Information and Intellectual Property Assignment A greement as of March 27, 2003.\nBy:\n/s/ William B. West\nName:\nWilliam B. West\nAddress:\nWitness\nBy:\n/s/ W. Eric Smith\nName:\nW. Eric Smith\nAddress:	EX-10 .5 15 a2215704zex-10 _5.htm EX-10 .5\nEXHIBIT B\nCONTROL4 CORPORATION\nCONFIDENTIAL INFORMATION AND\nINTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT\nAs a condition of my relationship with Control4 Corporation, its subsidiaries, affiliates, successors or assigns (together the “Company”), and for other valuable consideration, the receipt and sufficiency of which is hereby\nacknowledged, I agree to the following terms under this Confidential Information and Intellectual Property Assignment Agreement (the “Intellectual Property Agreement”):\n1.\nConfidential Information.\n(a)\nCompany Information. I agree at all times during the term of my relationship with the Company whether commenced prior to or upon the date of this Agreement (my “Relationship with the\nCompany”) and thereafter to hold in strictest confidence, and not to use except for the benefit of the Company or to disclose to any person, firm or corporation without written authorization of the Board of Directors of the Company, any\nConfidential Information of the Company. I understand that “Confidential Information” means any Company proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans,\nproducts, services, suppliers, prices and costs, customer lists and customers (including, but not limited to, customers of the Company on whom I called or with whom I became acquainted during the term of my Relationship with the\nCompany), markets, works of original authorship, photographs, negatives, digital images, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information,\nmarketing, finances or other business information disclosed to me by the Company either directly or indirectly in writing, orally or by drawings or observation of parts or equipment. I understand that Confidential Information includes,\nbut is not limited to, information pertaining to any aspect of the Company’s business which is either information not known by actual or potential competitors of the Company or other third parties not under confidentiality obligations to\nthe Company, or is otherwise proprietary information of the Company or its customers or suppliers, whether of a technical nature or otherwise. I further understand that Confidential Information does not include any of the foregoing items\nwhich has become publicly known and made generally available through no wrongful act of mine or of others who were under confidentiality obligations as to the item or items involved.\n(b)\nOther Employer Information. I agree that I will not, during my Relationship with the Company, improperly use or disclose any proprietary information or trade secrets of any former or\nconcurrent employer or other person or entity and that I will not bring onto the premises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in\nwriting by such employer, person or entity.\n(c)\nThird Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on the\nCompany’s part to maintain the confidentiality of such information and to use it\nonly for certain limited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out my work\nfor the Company consistent with the Company’s agreement with such third party.\n2.\nIntellectual Property.\n(a)\nAssignment of Intellectual Property. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and hereby\nassign to the Company, or its designee, all my right, title, and interest in and to any original works of authorship, inventions, concepts, improvements or trade secrets, whether or not patentable or registrable under copyright or similar laws,\nwhich I may solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the period of my Relationship with the Company (collectively referred to as “Intellectual\nProperty”) and which (i) are developed using the equipment, supplies, facilities or Confidential Information of the Company, (ii) result from or are suggested by work performed by me for the Company, or (iii) relate to the business, or to\nthe actual or demonstrably anticipated research or development of the Company. The Intellectual Property will be the sole and exclusive property of the Company. I further acknowledge that all original works of authorship which are\nmade by me (solely or jointly with others) within the scope of and during the period of my Relationship with the Company and which are protectable by copyright are “works made for hire,” as that term is defined in the United States\nCopyright Act. To the extent any Intellectual Property is not deemed to be work for hire, then I will and hereby do assign all my right, title and interest in such Intellectual Property to the Company, except as provided in Section 2(e).\n(b)\nPatent and Copyright Registrations. I agree to assist the Company, or its designee, at the Company’s (or its designee’s) expense, in every proper way to secure the Company’s (or its\ndesignee’s) rights in the Intellectual Property and any copyrights, patents or other intellectual property rights relating thereto in any and all countries, including the disclosure to the Company or its designee of all pertinent information and\ndata with respect thereto, the execution of all applications, specifications, oaths, assignments and all other instruments which the Company or its designee shall deem necessary in order to apply for and obtain such rights and in order to\nassign and convey to the Company (or its designee), its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such Intellectual Property, and any copyrights, patents or other intellectual property rights\nrelating thereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after the termination of my Relationship with the Company. If the\nCompany or its designee is unable because of my mental or physical incapacity or for any other reason to secure my assistance in perfecting the rights transferred in this Intellectual Property Agreement, then I hereby irrevocably designate\nand appoint the Company or its designee and its duly authorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully permitted acts\nto further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if executed by me. The designation and appointment of the Company or its designee and its duly authorized\nofficers and agents as my agent and attorney in fact shall be deemed to be coupled with an interest and therefore\n2\nirrevocable. I hereby waive and irrevocably quitclaim to the Company or its designee any and all claims, of any nature whatsoever, which I now or hereafter have for infringement of any and all proprietary rights assigned to the Company\nor such designee.\n(c)\nMaintenance of Records. I agree to keep and maintain adequate and current written records of all Intellectual Property made by me (solely or jointly with others) during the term of my\nRelationship with the Company. The records will be in the form of notes, sketches, drawings, and works of original authorship, photographs, negatives, digital images or any other format that may be specified by the Company. I agree\nnot to remove such records from the Company’s place of business except as expressly permitted by Company policy which may, from time to time, be revised at the sole election of the Company for the purpose of furthering the\nCompany’s business. The records will be available to and remain the sole property of the Company at all times.\n(d)\nIntellectual Property Retained and Licensed. I provide below a list of all original works of authorship, inventions, developments, improvements, and trade secrets which were made by me\nprior to my Relationship with the Company (collectively referred to as “Prior Intellectual Property”), which belong to me (solely or jointly), which relate in any way to the Company’s proposed business, products or research and\ndevelopment, and which are not assigned to the Company hereunder; or, if no such list is attached, I represent that there is no such Prior Intellectual Property. If in the course of my Relationship with the Company, I incorporate into\nCompany property any Prior Intellectual Property owned by me or in which I have an interest, the Company is hereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with the right of\nsublicense) to make, have made, modify, use and sell such Prior Intellectual Property as part of or in connection with such Company property.\nPrior Intellectual Property:\nTitle\nDate\nIdentifying Number\nor Brief Description\n(e)\nException to Assignments. I understand that the provisions of this Intellectual Property Agreement requiring assignment of Intellectual Property to the Company are limited by the\nEmployment Inventions Act, Utah Code Annotated Section 34-39-3, which is attached hereto as Appendix A, and do not apply to any intellectual property that (i) I develop entirely on my own time; and (ii) is not an “employment\ninvention” as such term is defined in the Employment Inventions Act, which I understand to be any invention or part thereof that I conceive, develop, reduce to practice, or create: (x) within the scope of my employment, on the Company’s\ntime, or with the aid, assistance, or use of any of the Company’s property, equipment, facilities, supplies, resources, or intellectual property; or (y) as the result of any work, services, or duties that I perform for the Company that are related\nto the Company’s industry or trade, or that are related to the Company’s current or demonstrably anticipated business, research, or development. Any such intellectual property will be owned entirely by\n3\nme, even if developed by me during the time period in which I am employed by the Company. I will advise the Company promptly in writing of any intellectual property that I believe meet the criteria for exclusion set forth herein and are\nnot otherwise disclosed pursuant to Section 2(d) above.\n(f)\nCompany Property; Return of Company Documents. I acknowledge and agree that I have no expectation of privacy with respect to the Company’s telecommunications, networking or\ninformation processing systems (including, without limitation, stored company files, e-mail messages and voice messages) and that my activity and any files or messages on or using any of those systems may be monitored at any time\nwithout notice. I further agree that any property situated on the Company’s premises and owned by the Company, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by Company personnel\nat any time with or without notice. I agree that, at the time of leaving the employ of the Company, I will deliver to the Company (and will not keep in my possession, recreate or deliver to anyone else) any and all works of original\nauthorship, photographs, negatives, digital images, devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings blueprints, sketches, materials, equipment, other documents or property, or reproductions\nof any aforementioned items developed by me pursuant to my Relationship with the Company or otherwise belonging to the Company, its successors or assigns. In the event of the termination of my Relationship with the Company, I\nagree to sign and deliver the “Termination Certificate” attached hereto as Appendix B.\n3.\nNotification of New Employer. I hereby grant consent to notification by the Company to my concurrent employer, or in the event that I leave the employ of the Company, my new employer or consulting\nclient about my rights and obligations under this Intellectual Property Agreement.\n4.\nNo Solicitation of Employees, Consultants and Other Parties. I agree that during the period of my Relationship with the Company and for a period of twelve (12) months thereafter I shall not directly or\nindirectly solicit, induce, recruit or encourage or take away any person who shall then be employed by the Company (as an employee or consultant) or who shall have been employed by the Company (as an employee or consultant) within\nthe prior nine (9) month period, on behalf of myself or any other person, firm, corporation, association or other entity, directly or indirectly. Further, during my Relationship with the Company and at any time following termination of my\nRelationship with the Company for any reason, with or without cause, I shall not use any Confidential Information of the Company to attempt to negatively influence any of the Company’s clients, suppliers or customers from purchasing\nCompany products or services or providing goods or services to the Company or to solicit or influence or attempt to influence any client, customer or other person either directly or indirectly, to direct his or its purchase of products and/or\nservices or his or its provision of products and/or services to any person, firm, corporation, institution or other entity in competition with the business of the Company.\n5.\nRepresentations. I represent that my performance of all the terms of this Intellectual Property Agreement will not breach any agreement to keep in confidence proprietary information acquired by me in\nconfidence or in trust prior to my Relationship with the Company. I have not entered into, and I agree I will not enter into, any oral or written agreement in conflict\n4\nherewith. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Intellectual Property Agreement. I represent that my performance of all terms of this Agreement as an employee of the\nCompany has not breached and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by me prior or subsequent to the commencement of my Relationship with the Company. I\nacknowledge and agree that I have attached as Exhibit A hereto all agreements (e.g., non-competition agreements, non-solicitation of customers agreements, non-solicitation of employees agreements, confidentiality agreements,\ninventions agreements, etc.) with a current or former employer, or any other person or entity, that may restrict my ability to accept employment with the Company or my ability as an employee or consultant to recruit or engage customers\nor service providers on behalf of the Company, or otherwise relate to or restrict my ability to perform my duties as an employee of the Company or any obligation I may have to the Company.\n6.\nArbitration and Equitable Relief.\n(a)\nArbitration. Except as provided in Section 6(b) below, I agree that any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this\nIntellectual Property Agreement, shall be settled by arbitration to be held in Salt Lake City, Utah, in accordance with the rules then in effect of the American Arbitration Association. The arbitrator may grant injunctions or other relief in\nsuch dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. The Company and I\nshall each pay one-half of the costs and expenses of such arbitration, and each of us shall separately pay our counsel fees and expenses.\n(b)\nEquitable Remedies. Each of the Company and I agree that disputes relating to or arising out of a breach of the covenants contained in this Intellectual Property Agreement would likely\nrequire injunctive relief to maintain the status quo of the parties pending the appointment of an arbitrator pursuant to this Intellectual Property Agreement. The parties hereto also agree that it would be impossible or inadequate to measure\nand calculate the damages from any breach of the covenants contained in this Intellectual Property Agreement prior to resolution of any dispute pursuant to arbitration. Accordingly, if either party claims that the other party has breached\nany covenant of this Intellectual Property Agreement, that party will have available, in addition to any other right or remedy, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or threatened\nbreach and/or to specific performance of any such provision of this Intellectual Property Agreement pending resolution of the dispute through arbitration. The parties further agree that no bond or other security shall be required in\nobtaining such equitable relief and hereby consents to the issuance of such injunction and to the ordering of specific performance. However, upon appointment of an arbitrator, the arbitrator shall review any interim, injunctive relief\ngranted by a court of competent jurisdiction and shall have the discretion, jurisdiction, and authority to continue, expand, or dissolve such relief pending completion of the arbitration of such dispute or controversy. The parties agree that\nany orders issued by the arbitrator may be enforced by any court of competent jurisdiction if necessary to ensure compliance by the parties.\n5\n7.\nGeneral Provisions.\n(a)\nGoverning Law; Consent to Personal Jurisdiction. This Intellectual Property Agreement will be governed by the laws of the State of Utah as they apply to contracts entered into and wholly\nto be performed within such State. I hereby expressly consent to the nonexclusive personal jurisdiction and venue of the state and federal courts located in the federal District of Utah for any lawsuit filed there by either party arising from\nor relating to this Intellectual Property Agreement.\n(b)\nEntire Agreement. This Intellectual Property Agreement sets forth the entire agreement and understanding between the Company and me relating to the subject matter herein and merges all\nprior discussions between us. No modification of or amendment to this Intellectual Property Agreement, nor any waiver of any rights under this Intellectual Property Agreement, will be effective unless in writing signed by the party to be\ncharged. Any subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Intellectual Property Agreement.\n(c)\nSeverability. If one or more of the provisions in this Intellectual Property Agreement is deemed void by law, then the remaining provisions will continue in full force and effect.\n(d)\nSuccessors and Assigns. This Intellectual Property Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be for the benefit of the\nCompany, its successors, and its assigns.\n(e)\nAt Will Relationship. I understand and acknowledge that my Relationship with the Company is and shall continue to be at-will, as defined under applicable law, meaning that either I or the\nCompany may terminate the Relationship at any time for any reason or no reason, without further obligation or liability.\n(f)\nADVICE OF COUNSEL. I ACKNOWLEDGE THAT, IN EXECUTING THIS AGREEMENT, I HAVE HAD THE OPPORTUNITY . TO SEEK THE ADVICE OF INDEPENDENT\nLEGAL COUNSEL, AND I HAVE READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON\nOF THE DRAFTING OR PREPARATION HEREOF.\n(g)\nNot an IRS “Confidential Transaction”. Notwithstanding anything in this Agreement or in any other written or oral understanding or agreement to which the parties hereto are parties or by\nwhich they are bound, either the Company or I (or either of our representatives, agents or employees) may consult any tax advisor regarding the tax treatment and tax structure of the transaction contemplated by this Agreement and may at\nany time disclose to any person, without limitation of any kind, the tax treatment and tax structure of such transaction and all materials (including opinions or other tax analyses) that are provided relating to such treatment or structure. The\npreceding sentence is intended to satisfy the requirements for the transaction contemplated herein to avoid classification as a “confidential transaction” in accordance with Treasury Regulations Section 1.6011 -4(b)(3) and shall be\ninterpreted consistent with such intent.\n6\nThis authorization is not intended to permit disclosure of any other information relating to any transaction contemplated by the Relationship, including (without limitation) (i) any portion of any materials to the extent not related to the tax\ntreatment or tax structure of any such transaction, (ii) the identities of participants or potential participants in any such transaction, (iii) the existence or status of any negotiations, (iv) any pricing or financial information (except to the\nextent such pricing or financial information is related to the tax treatment or tax structure of any such transaction), or (v) any other term or detail not relevant to the tax treatment or the tax structure of any such transaction.\n(h)\nSurvival. The provisions of this Agreement shall survive the termination of the Relationship and the assignment of this Agreement by the Company to any successor in interest or other\nassignee.\n7\nIN WITNESS WHEREOF, the undersigned has executed this Confidential Information and Intellectual Property Assignment Agreement as of March 27, 2003 .\nBy: /s/ William B. West\nName:\nWilliam B. West\nAddress:\nWitness\nBy: /s/ W. Eric Smith\nName:\nW. Eric Smith\nAddress:
+48ea1356bbca6bde4defd0879b83d9b5.pdf	effective_date jurisdiction party term	EX-10.24 26 filename26.htm\nExhibit 10.24\nMAVENIR SYSTEMS, INC.\nEMPLOYMENT, CONFIDENTIAL INFORMATION, AND INVENTION ASSIGNMENT AGREEMENT\nAs a condition of my employment with Mavenir Systems, Inc., a Delaware corporation, its subsidiaries, affiliates, successors or assigns\n(collectively, the “Company”) and in consideration of my receipt of confidential information upon execution of this Agreement and my receipt of the\ncompensation now and hereafter paid to me by the Company, I agree to the following terms and conditions of this Employment, Confidential\nInformation, and Invention Assignment Agreement (the “Agreement”) which shall be effective as of the date set forth in the signature block\n(“Effective Date”):\n1. At-Will Employment. I UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR AN\nUNSPECIFIED DURATION AND CONSTITUTES “AT-WILL” EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO\nTHE CONTRARY IS UNAUTHORIZED AND NOT VALID UNLESS OBTAINED IN WRITING AND SIGNED BY THE COMPANY’S CHIEF\nEXECUTIVE OFFICER OR PRESIDENT. I ACKNOWLEDGE THAT THIS EMPLOYMENT RELATIONSHIP MAY BE TERMINATED AT\nANY TIME, WITH OR WITHOUT GOOD CAUSE OR FOR ANY OR NO CAUSE, AT THE OPTION EITHER OF THE COMPANY OR\nMYSELF, WITH OR WITHOUT NOTICE. I FURTHER ACKNOWLEDGE THAT THE COMPANY MAY MODIFY JOB TITLES, SALARIES,\nAND BENEFITS FROM TIME TO TIME AS IT DEEMS NECESSARY, AND THAT ANY SUCH CHANGE SHALL NOT ALTER THE AT-\nWILL NATURE OF MY EMPLOYMENT RELATIONSHIP WITH THE COMPANY.\n2. Confidential Information.\n(a) Company Information. I agree at all times during the term of my employment and thereafter to hold in strictest confidence, and not to\nuse, except for the benefit of the Company, any of the Company’s Confidential Information; or disclose to any person, firm or corporation any of the\nCompany’s Confidential Information except as authorized in writing by the Company’s Board of Directors or, if expressly authorized by the\nCompany’s management, pursuant to a written nondisclosure agreement that sufficiently protects the Confidential Information. I understand that\n“Confidential Information” means any information that relates to the Company’s actual or anticipated business or research and development,\ntechnical data, trade secrets or know-how, including, but not limited to, research, product plans or other information regarding the Company’s\nproducts or services and markets therefor, customer lists and customers (including, but not limited to, the Company’s customers on whom I called or\nwith whom I became acquainted during the term of my employment), software, developments, inventions, processes, formulas, technology, designs,\ndrawings, engineering, hardware configuration information, marketing, finances or other business information. I further understand that Confidential\nInformation (i) includes the foregoing information even if disclosed to me in connection with the contemplation of my becoming an employee of the\nCompany, i.e., prior to the Effective Date, and (ii) does not include any of the foregoing items that is or becomes publicly known through no\nwrongful act or omission of mine or of others who were under confidentiality obligations as to the item or items involved or improvements or new\nversions thereof.\n(b) Former Employer Information. I agree that I will not, during my employment with the Company, improperly use, disclose, or induce\nthe Company to use any confidential or proprietary information or trade secrets of any former or concurrent employer or other person or entity and\nthat I will not bring onto the premises of the Company any confidential or proprietary information or trade secrets belonging to any such employer,\nperson or entity unless consented to in writing by both the Company and such employer, person or entity.\n(c) Third Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential\nor proprietary information, subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain\nlimited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm\nor corporation or to use it except as necessary in carrying out my work for the Company consistent with the Company’s agreement with such third\nparty.\n(d) Provision of Confidential Information. The Company agrees to provide me with certain Confidential Information regarding the\nCompany that will enable me to optimize the performance of my duties to the Company. I agree that the Company will have no obligation to make\navailable to me any of its Confidential Information after the termination of my employment.\n3. Inventions.\n(a) Inventions Retained and Licensed. I have attached hereto as Exhibit A is a list describing all inventions, original works of authorship,\ndevelopments, improvements and trade secrets that were made by me prior to my employment with the Company, relate to the Company’s proposed\nbusiness, products or research and development, and are owned in whole or in part by me, (“Prior Inventions”); or, if no such list is attached or if\nExhibit A is unsigned, I represent that there are no such Prior Inventions. I agree that I will not incorporate, or permit to be incorporated, any Prior\nInvention into a Company product, process or service without the Company’s prior written consent. Nevertheless, if, in the course of my\nemployment with the Company, I incorporate into a Company product, process or service a Prior Invention, I hereby grant to the Company a\nnonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, transferable, sublicensable, worldwide license to reproduce, make derivative works\nof, distribute, perform, display, import, make, have made, modify, use, sell, offer to sell, and exploit in any other way such Prior Invention as part of\nor in connection with such product, process or service, and to practice any method related thereto.\n(b) Assignment of Inventions. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole right\nand benefit of the Company, and hereby assign to the Company, or its designee, all my right, title, and interest in and to any and all inventions,\noriginal works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets, whether or not\npatentable or registrable under copyright or similar laws, which I may solely or jointly conceive or develop or reduce to practice, or cause to be\nconceived or developed or reduced to practice, during the period of time I am in the employ of the Company (collectively, “Inventions”), except as\nprovided in Section 3(f) below. I further acknowledge that all original works of authorship which are made by me (solely or jointly with others)\nwithin the scope of and during the period of my employment with the Company and which are protectable by copyright are “works made for hire” as\nthat term is defined in the United States Copyright Act. I understand and agree that the decision whether or not to commercialize or market any\nInvention is within the Company’s sole discretion and for the Company’s sole benefit and that no royalty will be due to me as a result of the\nCompany’s efforts to commercialize or market any such Invention.\n(c) Inventions Assigned to the United States. I agree to assign to the United States government all my right, title, and interest in and to\nany and all Inventions whenever such full title is required to be in the United States by a contract between the Company and the United States or any\nof its agencies.\n(d) Maintenance of Records. I agree to keep and maintain adequate, current, accurate, and authentic written records of all Inventions\nmade by me (solely or jointly with others) during the term of my employment with the Company. The records will be in the form of notes, sketches,\ndrawings, electronic files, reports, or any other format that may be specified by the Company. The records are and will be available to the Company\nand shall remain the Company’s sole property at all times.\n(e) Patent and Copyright Registrations. I agree to assist the Company, or its designee, at the Company’s expense, in every proper way to\nsecure the Company’s rights in any Inventions and any copyrights, patents, mask work rights or other intellectual property rights relating thereto in\nany and all countries, including, but not limited to, the disclosure to the Company of all pertinent information and data with respect thereto, the\nexecution of all applications, specifications, oaths, assignments and all other instruments that the Company deems necessary in order to apply for and\nobtain such rights and in order to assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title and\ninterest in and to such Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto. I further agree\nthat my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after the\ntermination of this Agreement. If the Company is unable because of my mental or physical incapacity or for any other reason to secure my signature\nto apply for or to pursue any application for any United States or foreign patents or copyright registrations covering any Inventions or original works\nof authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the Company and its duly authorized officers and\nagents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully\npermitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if\nexecuted by me.\n-2-\n(f) Exception to Assignments. I understand that the provisions of this Agreement requiring assignment of Inventions to the Company do\nnot apply to any Invention that I have developed entirely on my own time without using the Company’s equipment, supplies, facilities, trade secret\ninformation or Confidential Information (an “Other Invention”) except for those Other Inventions that either (i) relate at the time of conception or\nreduction to practice of such Other Invention to the Company’s business, or actual or demonstrably anticipated research or development of the\nCompany or (ii) result from any work that I performed for the Company. I will advise the Company promptly in writing of any Invention that I\nbelieve constitutes an Other Invention and is not otherwise disclosed on Exhibit A. I agree that I will not incorporate, or permit to be incorporated,\nany Other Invention owned by me or in which I have an interest into a Company product, process or service without the Company’s prior written\nconsent. Notwithstanding the foregoing sentence, if, in the course of my employment with the Company, I incorporate into a Company product,\nprocess or service an Other Invention owned by me or in which I have an interest, I hereby grant to the Company a nonexclusive, royalty-free, fully\npaid-up, irrevocable, perpetual, transferable, sublicensable, worldwide license to reproduce, make derivative works of, distribute, perform, display,\nimport, make, have made, modify, use, sell, offer to sell, and exploit in any other way such Other Invention as part of or in connection with such\nproduct, process or service, and to practice any method related thereto.\n4. Conflicting Employment.\n(a) Current Obligations. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation or consulting related to the business in which the Company is now involved, becomes involved or has plans to become involved in during\nthe term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.\n(b) Prior Relationships. Without limiting Section 4(a) above, I represent that I have no other agreements, relationships, or commitments\nto any other person or entity that conflict with my obligations to the Company under this Agreement or my ability to become employed and perform\nthe services for which I am being hired by the Company. I further agree that if I have signed a confidentiality agreement or similar type of agreement\nwith any former employer or other entity, I will comply with the terms of any such agreement to the extent that its terms are lawful under applicable\nlaw. I represent and warrant that after undertaking a careful search (including searches of my computers, cell phones, electronic devices, and\ndocuments), I have returned all property and confidential information belonging to all prior employers. Moreover, I agree to fully indemnify the\nCompany, its directors, officers, agents, employees, investors, shareholders, administrators, affiliates, divisions, subsidiaries, predecessor and\nsuccessor corporations, and assigns for all verdicts, judgments, settlements, and other losses incurred by any of them resulting from my breach of my\nobligations under any agreement to which I am a party or obligation to which I am bound, as well as any reasonable attorneys’ fees and costs if the\nplaintiff is the prevailing party in such an action, except as prohibited by law.\n5. Solicitation of Employees. I agree that for a period of one (1) year immediately following the termination of my relationship with the\nCompany for any reason, whether with or without cause, at the option either of the Company or myself, with or without notice, I will not (either\ndirectly or indirectly, on behalf of myself or any third party) hire any of the Company’s employees, consultants or contractors or solicit, induce,\nrecruit or encourage any of the Company’s employees, consultants or contractors to leave their employment or terminate their relationship with the\nCompany.\n6. Interference. I agree that during the course of my employment and for a period of one (1) year immediately following the termination of my\nrelationship with the Company for any reason, whether with or without cause, at the option either of the Company or myself, with or without notice,\nI will not (either directly or indirectly, on behalf of myself or any third party) solicit to the detriment of the Company and/or for the benefit of any\ncompetitor of the Company, take away or attempt to take away, in whole or in part, any customer of the Company or otherwise interfere with the\nCompany’s customer relationships.\n-3-\n7. Covenant Not to Compete.\n(a) I agree that during the course of my employment and for a period of one (1) year immediately following the termination of my\nemployment with the Company for any reason, whether with or without cause, at the option either of the Company or myself, with or without notice,\nI will not, either directly or indirectly, (i) serve as an advisor, agent, consultant, director, employee, officer, partner, proprietor or otherwise of,\n(ii) have any ownership interest in (except for passive ownership of one percent (1%) or less of any entity whose securities have been registered\nunder the Securities Act of 1933, as amended, or Section 12 of the Securities Exchange Act of 1934, as amended) or (iii) participate in the\norganization, financing, operation, management or control of, any business in competition with the Company’s business in the Territory (1) as\nconducted by the Company during the course of my employment with the Company or (2) planned to be conducted by the Company pursuant to a\nproduct or business plan developed prior to the termination of my employment with the Company. “Territory” shall mean (A) all counties in the\nState of Texas, (B) all other states of the United States of America, (C) the European Union, (D) Asia, and (E) all other countries of the world in\nwhich the Company is then engaged in business. In particular, “Territory” shall include such geographic areas in which (I) the Company’s products\nand services are then deployed, (II) the Company then has a customer or (III) the Company then has operations or otherwise targets sales and\nmarketing activities or conducts or has plans to conduct business during the course of my employment.\n(b) I acknowledge that my fulfillment of the obligations contained in this Agreement, including, but not limited to, my obligation neither\nto use, except for the benefit of the Company, or to disclose the Company’s Confidential Information and my obligation not to compete contained in\nsubsection (a) above is necessary to protect the Company’s Confidential Information and to preserve the Company’s value and goodwill. I further\nacknowledge the time, geographic and scope limitations of my obligations under subsection (a) above are reasonable, especially in light of the\nCompany’s desire to protect its Confidential Information, and that I will not be precluded from gainful employment if I am obligated not to compete\nwith the Company during the period and within the Territory as described above.\n(c) The covenants contained in subsection (a) above shall be construed as a series of separate covenants, one for each city, county and\nstate of any geographic area in the Territory. Except for geographic coverage, each such separate covenant shall be deemed identical in terms to the\ncovenant contained in subsection (a) above. If, in any judicial or arbitration proceeding, a court or arbitrator refuses to enforce any of such separate\ncovenants (or any part thereof), then such unenforceable covenant (or such part) shall be eliminated from this Agreement to the extent necessary to\npermit the remaining separate covenants (or portions thereof) to be enforced. In the event the provisions of subsection (a) above are deemed to\nexceed the time, geographic or scope limitations permitted by applicable law, then such provisions shall be reformed to the maximum time,\ngeographic or scope limitations, as the case may be, then permitted by such law.\n8. Acknowledgements. I acknowledge that the non-solicitation and non-competition covenants I am providing in this Agreement are reasonable\nand necessary to protect the legitimate interests of the Company. I further acknowledge that my non-disclosure promises contained in this Agreement\nis in exchange for the Company’s promises contained in this Agreement to provide me with confidential information and trade secrets of the\nCompany.\n9. Returning Company Documents, etc. I agree that, upon separation from employment with the Company or on demand by the Company\nduring my employment, I will immediately deliver to the Company (and will not keep in my possession, recreate or deliver to anyone else) any and\nall Company property, including, but not limited to, the Company’s Confidential Information, as well as all devices and equipment belonging to the\nCompany (including computers, handheld electronic devices, telephone equipment, and other electronic devices), Company credit cards, records,\ndata, notes, notebooks, reports, files, proposals, lists, correspondence (including emails and any other electronic correspondence), specifications,\ndrawings, blueprints, sketches, materials, photographs, charts, any other documents and property, and reproductions of any and all of the\naforementioned items that were developed by me pursuant to my employment with the Company, obtained by me in connection with my\nemployment with the Company, or otherwise belonging to the Company, its successors, or assigns, including, without limitation, those records\nmaintained pursuant to Section 3(e).Upon separation from employment with the Company, I agree to immediately sign and deliver to the Company\nthe “Termination Certification” attached hereto as Exhibit B. I also consent to an exit interview to confirm my compliance with this Section 9. I\nfurther agree to keep the Company advised of my home and business address for a period of three (3) years after termination of my employment with\nthe Company, so that the Company can contact me regarding my continuing obligations provided by this Agreement.\n10. Conflict of Interest Guidelines. I agree to diligently adhere to the Conflict of Interest Guidelines attached hereto as Exhibit C.\n-4-\n11. Further Assurances; No Conflict. I agree to execute any proper oath or verify any proper document required to carry out the terms of this\nAgreement. I represent that my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary\ninformation acquired by me in confidence or in trust prior to my employment by the Company. I have not entered into, and I agree I will not enter\ninto, any oral or written agreement in conflict herewith.\n12. Violation; Disciplinary Matters. I understand that any breach of this Agreement or violation of Company policies by me, including any\nunauthorized use or disclosure of Confidential Information of the Company or any third party during my employment may lead to disciplinary\naction, up to and including immediate termination and may further result in legal action by the Company.\n13. Notification to New Employer. In the event that I leave the employ of the Company, I hereby grant consent to notification by the Company\nto my new employer about my rights and obligations under this Agreement.\n14. Arbitration and Equitable Relief.\n(a) Arbitration. In consideration of my employment with the Company, its promise to arbitrate all employment-related disputes and my\nreceipt of the compensation, pay raises and other benefits paid to me by the Company, at present and in the future, I agree that, except as provided in\nsubsection (b) below, any and all controversies, claims, or disputes with anyone (including the Company and any employee, officer, director,\nshareholder or benefit plan of the Company in their capacity as such or otherwise) arising out of, relating to, or resulting from my employment with\nthe Company or the termination of my employment with the Company, including any breach of this Agreement, shall be subject to binding\narbitration shall be settled by arbitration to be held in Dallas, Texas in accordance with the rules then in effect of the American Arbitration\nAssociation. Disputes which I agree to arbitrate, and thereby agree to waive any right to a trial by jury, include any statutory claims under state or\nfederal law, including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act of 1990, the\nAge Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the Texas Fair Employment and Housing Act, the Texas\nLabor Code, claims of harassment, discrimination or wrongful termination and any statutory claims. I further understand that this Agreement to\narbitrate also applies to any disputes that the Company may have with me.\n(b) Procedure. I agree that any arbitration will be administered by the American Arbitration Association (“AAA”) and that a neutral\narbitrator will be selected in a manner consistent with its National Rules for the Resolution of Employment Disputes. I agree that any arbitration\nunder this section shall be conducted in Dallas, Texas. The arbitration proceedings will allow for discovery according to the AAA National Rules for\nthe Resolution of Employment Disputes. I agree that the arbitrator shall have the power to decide any motions brought by any party to the arbitration,\nincluding motions for summary judgment and/or adjudication and motions to dismiss and demurrers, prior to any arbitration hearing. I agree that the\narbitrator shall issue a written decision on the merits. I also agree that the arbitrator shall have the power to award any remedies, including attorneys’\nfees and costs, available under applicable law. I understand the Company will pay for any administrative or hearing fees charged by the arbitrator or\nAAA except that I shall pay the first $200.00 of any filing fees associated with any arbitration I initiate. I agree that the arbitrator shall administer\nand conduct any arbitration in a manner consistent with the AAA’s National Rules for the Resolution of Employment Disputes.\n(c) Remedy. Arbitration shall be the sole, exclusive and final remedy for any dispute between me and the Company. Accordingly, neither\nI nor the Company will be permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding the foregoing, the\narbitrator will not have the authority to disregard or refuse to enforce any lawful company policy, and the arbitrator shall not order or require the\nCompany to adopt a policy not otherwise required by law which the Company has not adopted.\n(d) Equitable Remedies. I agree that it would be impossible or inadequate to measure and calculate the Company’s damages from my\nbreach of Sections 2, 3, 5, 6 and 7 of this Agreement. Accordingly, I agree that if I breach any such Section, the Company will have available, in\naddition to any other right or remedy available, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or\nthreatened breach and to specific performance of any such provision of this Agreement. I further agree that no bond or other security shall be\nrequired in obtaining such equitable relief and I hereby consent to the issuance of such injunction and to the ordering of specific performance.\n-5-\n(e) Administrative relief. I understand that this Agreement does not prohibit me from pursuing an administrative claim with a local, state\nor federal administrative body such as the Equal Employment Opportunity Commission or the Workers’ Compensation Commission. This\nAgreement does, however, preclude me from pursuing court action regarding any such claim.\n(f) Voluntary nature of agreement. I acknowledge and agree that I am executing this Agreement voluntarily and without any duress or\nundue influence by the Company or anyone else. I further acknowledge and agree that I have carefully read this Agreement and that I have asked any\nquestions needed for me to understand the terms, consequences and binding effect of this Agreement and fully understand it, including that I AM\nWAIVING MY RIGHT TO A JURY TRIAL. Finally, I agree that I have been provided an opportunity to seek the advice of an attorney of my choice\nbefore signing this Agreement.\n15. General Provisions.\n(a) Governing Law; Consent to Personal Jurisdiction. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE\nOF TEXAS WITHOUT REGARD FOR CONFLICTS OF LAWS PRINCIPLES. I HEREBY EXPRESSLY CONSENT TO THE PERSONAL\nJURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN TEXAS FOR ANY LAWSUIT FILED THERE AGAINST ME BY\nTHE COMPANY CONCERNING MY EMPLOYMENT OR THE TERMINATION OF MY EMPLOYMENT OR ARISING FROM OR\nRELATING TO THIS AGREEMENT.\n(b) Entire Agreement. This Agreement, together with the Exhibits herein, sets forth the entire agreement and understanding between the\nCompany and me relating to the subject matter herein and supersedes all prior discussions or representations between us, including, but not limited\nto, any representations made during my interview(s) or relocation negotiations, whether written or oral, and any previously executed proprietary\ninformation agreements. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective\nunless in writing signed by the Company’s Chief Executive Officer or President and me. Any subsequent change or changes in my duties, salary or\ncompensation will not affect the validity or scope of this Agreement.\n(c) Severability. If one or more of the provisions in this Agreement are deemed void by law then the remaining provisions will continue\nin full force and effect.\n(d) Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and\nwill be for the benefit of the Company, its successors and its assigns.\n(e) Waiver. Waiver by the Company of a breach of any provision of this Agreement will not operate as a waiver of any other or\nsubsequent breach.\n(f) Survivorship. The rights and obligations of the parties to this Agreement will survive termination of my employment with the\nCompany.\n(g) Construction. The language used in this Agreement will be deemed to by the language chosen by the parties to express their mutual\nintent and no rules of strict construction will be applied against either party.\n(h) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be enforceable, and all of which\ntogether shall constitute one agreement.\n16. I acknowledge and agree to each of the following items:\n(a) I am executing this Agreement voluntarily and without any duress or undue influence by the Company or anyone else; and\n(b) I have carefully read this Agreement. I have asked any questions needed for me to understand the terms, consequences and binding\neffect of this Agreement and fully understand them; and\n-6-\n(c) I sought the advice of an attorney of my choice if I wanted to before signing this Agreement.\n[Remainder of this page intentionally left blank]\n-7-\nIN WITNESS WHEREOF, the parties have executed this Agreement on the day, month and year first set forth below, to be effective as of the\nEffective Date.\nDate:\n.\n.\nMAVENIR SYSTEMS, INC.\n“Employee”\nBy:\nSignature of Employee\nIts:\nType or Print Name of Employee\nMAVENIR SYSTEMS, INC.\nEMPLOYMENT, CONFIDENTIAL INFORMATION, AND INVENTION A SSIGNMENT AGREEMENT SIGNATURE PAGE\nEXHIBIT A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nTitle\nDate\nIdentifying Number or Brief Description\nNo inventions or improvements\nAdditional Sheets Attached\nSignature of Employee:\nPrint Name of Employee:\nDate:\nEXHIBIT B\nMAVENIR SYSTEMS, INC.\nTERMINATION CERTIFICATION\nI certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists,\ncorrespondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any\naforementioned items belonging to Mavenir Systems, Inc., its subsidiaries, affiliates, successors or assigns (together, the “Company”).\nI further certify that I have complied with all the terms of the Company’s Employment, Confidential Information, and Invention Assignment\nAgreement signed by me, including, but not limited to, the reporting of any Inventions or Other Inventions (as such terms are defined therein).\nI confirm my agreements contained in Section 2 (Confidential Information), Section 3 (Inventions), Section 5 (Solicitation of Employees),\nSection 6 (Interference), and Section 7 (Covenant Not to Compete) of the Employment, Confidential Information, and Invention Assignment\nAgreement.\nDate:\n(Employee’s Signature)\n(Type/Print Employee’s Name)\nEXHIBIT C\nMAVENIR SYSTEMS, INC.\nCONFLICT OF INTEREST GUIDELINES\nIt is the policy of Mavenir Systems, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere to the\nhighest principles of business ethics. Accordingly, all officers, employees and independent contractors must avoid activities which are in conflict, or\ngive the appearance of being in conflict, with these principles and with the interests of the Company. The following are potentially compromising\nsituations which must be avoided. Any exceptions must be reported to the Chief Executive Officer or President and written approval for continuation\nmust be obtained\n1. Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is a violation\nof this policy whether or not for personal gain and whether or not harm to the Company is intended. (The Employment, Confidential Information,\nand Invention Assignment Agreement elaborates on this principle and is a binding agreement.)\n2. Accepting or offering substantial gifts, excessive entertainment, favors or payments which may be deemed to constitute undue influence or\notherwise be improper or embarrassing to the Company.\n3. Participating in civic or professional organizations that might involve divulging confidential information of the Company.\n4. Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family relationship or\nis or appears to be a personal or social involvement.\n5. Initiating or approving any form of personal or social harassment of employees.\n6. Investing or holding outside directorship in suppliers, customers, or competing companies, including financial speculations, where such\ninvestment or directorship might influence in any manner a decision or course of action of the Company.\n7. Borrowing from or lending to employees, customers or suppliers.\n8. Acquiring real estate of interest to the Company.\n9. Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent employer or other\nperson or entity with whom obligations of confidentiality exist.\n10. Unlawfully discussing prices, costs, customers, sales or markets with competing companies.\n11. Making any unlawful agreement with distributors with respect to prices.\n12. Improperly using or authorizing the use of any inventions which are the subject of patent claims of any other person or entity.\n13. Engaging in any conduct which is not in the best interest of the Company.\nEach officer, employee and independent contractor must take every necessary action to ensure compliance with these guidelines and to bring\nproblem areas to the attention of higher management for review. Violations of this conflict of interest policy may result in discharge without\nwarning.	EX-10.24 26 filename26.htm\nExhibit 10.24\nMAVENIR SYSTEMS, INC.\nEMPLOYMENT, CONFIDENTIAL INFORMATION, AND INVENTION ASSIGNMENT AGREEMENT\nAs a condition of my employment with Mavenir Systems, Inc., a Delaware corporation, its subsidiaries, affiliates, successors or assigns\n(collectively, the “Company”) and in consideration of my receipt of confidential information upon execution of this Agreement and my receipt of the\ncompensation now and hereafter paid to me by the Company, I agree to the following terms and conditions of this Employment, Confidential\nInformation, and Invention Assignment Agreement (the “Agreement”) which shall be effective as of the date set forth in the signature block\n(“Effective Date”):\n1. At-Will Employment. ] UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR AN\nUNSPECIFIED DURATION AND CONSTITUTES “AT-WILL” EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO\nTHE CONTRARY IS UNAUTHORIZED AND NOT VALID UNLESS OBTAINED IN WRITING AND SIGNED BY THE COMPANY’S CHIEF\nEXECUTIVE OFFICER OR PRESIDENT. I ACKNOWLEDGE THAT THIS EMPLOYMENT RELATIONSHIP MAY BE TERMINATED AT\nANY TIME, WITH OR WITHOUT GOOD CAUSE OR FOR ANY OR NO CAUSE, AT THE OPTION EITHER OF THE COMPANY OR\nMYSELF, WITH OR WITHOUT NOTICE. I FURTHER ACKNOWLEDGE THAT THE COMPANY MAY MODIFY JOB TITLES, SALARIES,\nAND BENEFITS FROM TIME TO TIME AS IT DEEMS NECESSARY, AND THAT ANY SUCH CHANGE SHALL NOT ALTER THE AT-\nWILL NATURE OF MY EMPLOYMENT RELATIONSHIP WITH THE COMPANY.\n \n2. Confidential Information.\n(a) Company Information. I agree at all times during the term of my employment and thereafter to hold in strictest confidence, and not to\nuse, except for the benefit of the Company, any of the Company’s Confidential Information; or disclose to any person, firm or corporation any of the\nCompany’s Confidential Information except as authorized in writing by the Company’s Board of Directors or, if expressly authorized by the\nCompany’s management, pursuant to a written nondisclosure agreement that sufficiently protects the Confidential Information. I understand that\n“Confidential Information” means any information that relates to the Company’s actual or anticipated business or research and development,\ntechnical data, trade secrets or know-how, including, but not limited to, research, product plans or other information regarding the Company’s\nproducts or services and markets therefor, customer lists and customers (including, but not limited to, the Company’s customers on whom I called or\nwith whom I became acquainted during the term of my employment), software, developments, inventions, processes, formulas, technology, designs,\ndrawings, engineering, hardware configuration information, marketing, finances or other business information. I further understand that Confidential\nInformation (i) includes the foregoing information even if disclosed to me in connection with the contemplation of my becoming an employee of the\nCompany, i.e., prior to the Effective Date, and (ii) does not include any of the foregoing items that is or becomes publicly known through no\nwrongful act or omission of mine or of others who were under confidentiality obligations as to the item or items involved or improvements or new\nversions thereof.\n(b) Former Employer Information. I agree that I will not, during my employment with the Company, improperly use, disclose, or induce\nthe Company to use any confidential or proprietary information or trade secrets of any former or concurrent employer or other person or entity and\nthat I will not bring onto the premises of the Company any confidential or proprietary information or trade secrets belonging to any such employer,\nperson or entity unless consented to in writing by both the Company and such employer, person or entity.\n(c) Third Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential\nor proprietary information, subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain\nlimited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm\nor corporation or to use it except as necessary in carrying out my work for the Company consistent with the Company’s agreement with such third\nparty.\n(d) Provision of Confidential Information. The Company agrees to provide me with certain Confidential Information regarding the\nCompany that will enable me to optimize the performance of my duties to the Company. I agree that the Company will have no obligation to make\navailable to me any of its Confidential Information after the termination of my employment.\n3. Inventions.\n(a) Inventions Retained and Licensed. I have attached hereto as Exhibit A is a list describing all inventions, original works of authorship,\ndevelopments, improvements and trade secrets that were made by me prior to my employment with the Company, relate to the Company’s proposed\nbusiness, products or research and development, and are owned in whole or in part by me, (“Prior Inventions”); or, if no such list is attached or if\nExhibit A is unsigned, I represent that there are no such Prior Inventions. I agree that I will not incorporate, or permit to be incorporated, any Prior\nInvention into a Company product, process or service without the Company’s prior written consent. Nevertheless, if, in the course of my\nemployment with the Company, I incorporate into a Company product, process or service a Prior Invention, I hereby grant to the Company a\nnonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, transferable, sublicensable, worldwide license to reproduce, make derivative works\nof, distribute, perform, display, import, make, have made, modify, use, sell, offer to sell, and exploit in any other way such Prior Invention as part of\nor in connection with such product, process or service, and to practice any method related thereto.\n(b) Assignment of Inventions. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole right\nand benefit of the Company, and hereby assign to the Company, or its designee, all my right, title, and interest in and to any and all inventions,\noriginal works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets, whether or not\npatentable or registrable under copyright or similar laws, which I may solely or jointly conceive or develop or reduce to practice, or cause to be\nconceived or developed or reduced to practice, during the period of time I am in the employ of the Company (collectively, “Inventions”), except as\nprovided in Section 3(f) below. I further acknowledge that all original works of authorship which are made by me (solely or jointly with others)\nwithin the scope of and during the period of my employment with the Company and which are protectable by copyright are “works made for hire” as\nthat term is defined in the United States Copyright Act. I understand and agree that the decision whether or not to commercialize or market any\nInvention is within the Company’s sole discretion and for the Company’s sole benefit and that no royalty will be due to me as a result of the\nCompany’s efforts to commercialize or market any such Invention.\n(c) Inventions Assigned to the United States. I agree to assign to the United States government all my right, title, and interest in and to\nany and all Inventions whenever such full title is required to be in the United States by a contract between the Company and the United States or any\nof its agencies.\n(d) Maintenance of Records. I agree to keep and maintain adequate, current, accurate, and authentic written records of all Inventions\nmade by me (solely or jointly with others) during the term of my employment with the Company. The records will be in the form of notes, sketches,\ndrawings, electronic files, reports, or any other format that may be specified by the Company. The records are and will be available to the Company\nand shall remain the Company’s sole property at all times.\n(e) Patent and Copyright Registrations. I agree to assist the Company, or its designee, at the Company’s expense, in every proper way to\nsecure the Company’s rights in any Inventions and any copyrights, patents, mask work rights or other intellectual property rights relating thereto in\nany and all countries, including, but not limited to, the disclosure to the Company of all pertinent information and data with respect thereto, the\nexecution of all applications, specifications, oaths, assignments and all other instruments that the Company deems necessary in order to apply for and\nobtain such rights and in order to assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title and\ninterest in and to such Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto. I further agree\nthat my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after the\ntermination of this Agreement. If the Company is unable because of my mental or physical incapacity or for any other reason to secure my signature\nto apply for or to pursue any application for any United States or foreign patents or copyright registrations covering any Inventions or original works\nof authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the Company and its duly authorized officers and\nagents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully\npermitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if\nexecuted by me.\n_2-\n(f) Exception to Assignments. I understand that the provisions of this Agreement requiring assignment of Inventions to the Company do\nnot apply to any Invention that I have developed entirely on my own time without using the Company’s equipment, supplies, facilities, trade secret\ninformation or Confidential Information (an “Other Invention”) except for those Other Inventions that either (i) relate at the time of conception or\nreduction to practice of such Other Invention to the Company’s business, or actual or demonstrably anticipated research or development of the\nCompany or (ii) result from any work that I performed for the Company. I will advise the Company promptly in writing of any Invention that I\nbelieve constitutes an Other Invention and is not otherwise disclosed on Exhibit A. I agree that I will not incorporate, or permit to be incorporated,\nany Other Invention owned by me or in which I have an interest into a Company product, process or service without the Company’s prior written\nconsent. Notwithstanding the foregoing sentence, if, in the course of my employment with the Company, I incorporate into a Company product,\nprocess or service an Other Invention owned by me or in which I have an interest, I hereby grant to the Company a nonexclusive, royalty-free, fully\npaid-up, irrevocable, perpetual, transferable, sublicensable, worldwide license to reproduce, make derivative works of, distribute, perform, display,\nimport, make, have made, modify, use, sell, offer to sell, and exploit in any other way such Other Invention as part of or in connection with such\nproduct, process or service, and to practice any method related thereto.\n4. Conflicting Employment.\n(a) Current Obligations. 1 agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation or consulting related to the business in which the Company is now involved, becomes involved or has plans to become involved in during\nthe term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.\n(b) Prior Relationships. Without limiting Section 4(a) above, I represent that I have no other agreements, relationships, or commitments\nto any other person or entity that conflict with my obligations to the Company under this Agreement or my ability to become employed and perform\nthe services for which I am being hired by the Company. I further agree that if I have signed a confidentiality agreement or similar type of agreement\nwith any former employer or other entity, I will comply with the terms of any such agreement to the extent that its terms are lawful under applicable\nlaw. I represent and warrant that after undertaking a careful search (including searches of my computers, cell phones, electronic devices, and\ndocuments), I have returned all property and confidential information belonging to all prior employers. Moreover, I agree to fully indemnify the\nCompany, its directors, officers, agents, employees, investors, shareholders, administrators, affiliates, divisions, subsidiaries, predecessor and\nsuccessor corporations, and assigns for all verdicts, judgments, settlements, and other losses incurred by any of them resulting from my breach of my\nobligations under any agreement to which I am a party or obligation to which I am bound, as well as any reasonable attorneys’ fees and costs if the\nplaintiff is the prevailing party in such an action, except as prohibited by law.\n5. Solicitation of Employees. 1 agree that for a period of one (1) year immediately following the termination of my relationship with the\nCompany for any reason, whether with or without cause, at the option either of the Company or myself, with or without notice, I will not (either\ndirectly or indirectly, on behalf of myself or any third party) hire any of the Company’s employees, consultants or contractors or solicit, induce,\nrecruit or encourage any of the Company’s employees, consultants or contractors to leave their employment or terminate their relationship with the\nCompany.\n6. Interference. I agree that during the course of my employment and for a period of one (1) year immediately following the termination of my\nrelationship with the Company for any reason, whether with or without cause, at the option either of the Company or myself, with or without notice,\nI will not (either directly or indirectly, on behalf of myself or any third party) solicit to the detriment of the Company and/or for the benefit of any\ncompetitor of the Company, take away or attempt to take away, in whole or in part, any customer of the Company or otherwise interfere with the\nCompany’s customer relationships.\n_3-\n7. Covenant Not to Compete.\n(a) I agree that during the course of my employment and for a period of one (1) year immediately following the termination of my\nemployment with the Company for any reason, whether with or without cause, at the option either of the Company or myself, with or without notice,\nI will not, either directly or indirectly, (i) serve as an advisor, agent, consultant, director, employee, officer, partner, proprietor or otherwise of,\n(ii) have any ownership interest in (except for passive ownership of one percent (1%) or less of any entity whose securities have been registered\nunder the Securities Act of 1933, as amended, or Section 12 of the Securities Exchange Act of 1934, as amended) or (iii) participate in the\norganization, financing, operation, management or control of, any business in competition with the Company’s business in the Territory (1) as\nconducted by the Company during the course of my employment with the Company or (2) planned to be conducted by the Company pursuant to a\nproduct or business plan developed prior to the termination of my employment with the Company. “Territory” shall mean (A) all counties in the\nState of Texas, (B) all other states of the United States of America, (C) the European Union, (D) Asia, and (E) all other countries of the world in\nwhich the Company is then engaged in business. In particular, “Territory” shall include such geographic areas in which (I) the Company’s products\nand services are then deployed, (II) the Company then has a customer or (IIT) the Company then has operations or otherwise targets sales and\nmarketing activities or conducts or has plans to conduct business during the course of my employment.\n \n(b) I acknowledge that my fulfillment of the obligations contained in this Agreement, including, but not limited to, my obligation neither\nto use, except for the benefit of the Company, or to disclose the Company’s Confidential Information and my obligation not to compete contained in\nsubsection (a) above is necessary to protect the Company’s Confidential Information and to preserve the Company’s value and goodwill. I further\nacknowledge the time, geographic and scope limitations of my obligations under subsection (a) above are reasonable, especially in light of the\nCompany’s desire to protect its Confidential Information, and that I will not be precluded from gainful employment if I am obligated not to compete\nwith the Company during the period and within the Territory as described above.\n(c) The covenants contained in subsection (a) above shall be construed as a series of separate covenants, one for each city, county and\nstate of any geographic area in the Territory. Except for geographic coverage, each such separate covenant shall be deemed identical in terms to the\ncovenant contained in subsection (a) above. If, in any judicial or arbitration proceeding, a court or arbitrator refuses to enforce any of such separate\ncovenants (or any part thereof), then such unenforceable covenant (or such part) shall be eliminated from this Agreement to the extent necessary to\npermit the remaining separate covenants (or portions thereof) to be enforced. In the event the provisions of subsection (a) above are deemed to\nexceed the time, geographic or scope limitations permitted by applicable law, then such provisions shall be reformed to the maximum time,\ngeographic or scope limitations, as the case may be, then permitted by such law.\n8. Acknowledgements. 1 acknowledge that the non-solicitation and non-competition covenants I am providing in this Agreement are reasonable\nand necessary to protect the legitimate interests of the Company. I further acknowledge that my non-disclosure promises contained in this Agreement\nis in exchange for the Company’s promises contained in this Agreement to provide me with confidential information and trade secrets of the\nCompany.\n9. Returning Company Documents, etc. I agree that, upon separation from employment with the Company or on demand by the Company\nduring my employment, I will immediately deliver to the Company (and will not keep in my possession, recreate or deliver to anyone else) any and\nall Company property, including, but not limited to, the Company’s Confidential Information, as well as all devices and equipment belonging to the\nCompany (including computers, handheld electronic devices, telephone equipment, and other electronic devices), Company credit cards, records,\ndata, notes, notebooks, reports, files, proposals, lists, correspondence (including emails and any other electronic correspondence), specifications,\ndrawings, blueprints, sketches, materials, photographs, charts, any other documents and property, and reproductions of any and all of the\naforementioned items that were developed by me pursuant to my employment with the Company, obtained by me in connection with my\nemployment with the Company, or otherwise belonging to the Company, its successors, or assigns, including, without limitation, those records\nmaintained pursuant to Section 3(e).Upon separation from employment with the Company, I agree to immediately sign and deliver to the Company\nthe “Termination Certification” attached hereto as Exhibit B. I also consent to an exit interview to confirm my compliance with this Section 9. I\nfurther agree to keep the Company advised of my home and business address for a period of three (3) years after termination of my employment with\nthe Company, so that the Company can contact me regarding my continuing obligations provided by this Agreement.\n10. Conflict of Interest Guidelines. I agree to diligently adhere to the Conflict of Interest Guidelines attached hereto as Exhibit C.\n_4-\n11. Further Assurances; No Conflict. I agree to execute any proper oath or verify any proper document required to carry out the terms of this\nAgreement. I represent that my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary\ninformation acquired by me in confidence or in trust prior to my employment by the Company. I have not entered into, and I agree I will not enter\ninto, any oral or written agreement in conflict herewith.\n12. Violation; Disciplinary Matters. I understand that any breach of this Agreement or violation of Company policies by me, including any\nunauthorized use or disclosure of Confidential Information of the Company or any third party during my employment may lead to disciplinary\naction, up to and including immediate termination and may further result in legal action by the Company.\n13. Notification to New Employer. In the event that I leave the employ of the Company, I hereby grant consent to notification by the Company\nto my new employer about my rights and obligations under this Agreement.\n14. Arbitration and Equitable Relief.\n(a) Arbitration. In consideration of my employment with the Company, its promise to arbitrate all employment-related disputes and my\nreceipt of the compensation, pay raises and other benefits paid to me by the Company, at present and in the future, I agree that, except as provided in\nsubsection (b) below, any and all controversies, claims, or disputes with anyone (including the Company and any employee, officer, director,\nshareholder or benefit plan of the Company in their capacity as such or otherwise) arising out of, relating to, or resulting from my employment with\nthe Company or the termination of my employment with the Company, including any breach of this Agreement, shall be subject to binding\narbitration shall be settled by arbitration to be held in Dallas, Texas in accordance with the rules then in effect of the American Arbitration\nAssociation. Disputes which I agree to arbitrate, and thereby agree to waive any right to a trial by jury, include any statutory claims under state or\nfederal law, including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act of 1990, the\nAge Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the Texas Fair Employment and Housing Act, the Texas\nLabor Code, claims of harassment, discrimination or wrongful termination and any statutory claims. I further understand that this Agreement to\narbitrate also applies to any disputes that the Company may have with me.\n(b) Procedure. 1 agree that any arbitration will be administered by the American Arbitration Association (“AAA”) and that a neutral\narbitrator will be selected in a manner consistent with its National Rules for the Resolution of Employment Disputes. I agree that any arbitration\nunder this section shall be conducted in Dallas, Texas. The arbitration proceedings will allow for discovery according to the AAA National Rules for\nthe Resolution of Employment Disputes. I agree that the arbitrator shall have the power to decide any motions brought by any party to the arbitration,\nincluding motions for summary judgment and/or adjudication and motions to dismiss and demurrers, prior to any arbitration hearing. I agree that the\narbitrator shall issue a written decision on the merits. I also agree that the arbitrator shall have the power to award any remedies, including attorneys’\nfees and costs, available under applicable law. I understand the Company will pay for any administrative or hearing fees charged by the arbitrator or\nAAA except that I shall pay the first $200.00 of any filing fees associated with any arbitration I initiate. I agree that the arbitrator shall administer\nand conduct any arbitration in a manner consistent with the AAA’s National Rules for the Resolution of Employment Disputes.\n(c) Remedy. Arbitration shall be the sole, exclusive and final remedy for any dispute between me and the Company. Accordingly, neither\nI nor the Company will be permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding the foregoing, the\narbitrator will not have the authority to disregard or refuse to enforce any lawful company policy, and the arbitrator shall not order or require the\nCompany to adopt a policy not otherwise required by law which the Company has not adopted.\n(d) Equitable Remedies. 1 agree that it would be impossible or inadequate to measure and calculate the Company’s damages from my\nbreach of Sections 2, 3, 5, 6 and 7 of this Agreement. Accordingly, I agree that if I breach any such Section, the Company will have available, in\naddition to any other right or remedy available, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or\nthreatened breach and to specific performance of any such provision of this Agreement. I further agree that no bond or other security shall be\nrequired in obtaining such equitable relief and I hereby consent to the issuance of such injunction and to the ordering of specific performance.\n_5.\n(e) Administrative relief. 1 understand that this Agreement does not prohibit me from pursuing an administrative claim with a local, state\nor federal administrative body such as the Equal Employment Opportunity Commission or the Workers’ Compensation Commission. This\nAgreement does, however, preclude me from pursuing court action regarding any such claim.\n(f) Voluntary nature of agreement. I acknowledge and agree that I am executing this Agreement voluntarily and without any duress or\nundue influence by the Company or anyone else. I further acknowledge and agree that I have carefully read this Agreement and that I have asked any\nquestions needed for me to understand the terms, consequences and binding effect of this Agreement and fully understand it, including that I AM\nWAIVING MY RIGHT TO A JURY TRIAL. Finally, I agree that I have been provided an opportunity to seek the advice of an attorney of my choice\nbefore signing this Agreement.\n15. General Provisions.\n(a) Governing Law; Consent to Personal Jurisdiction. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE\nOF TEXAS WITHOUT REGARD FOR CONFLICTS OF LAWS PRINCIPLES. I HEREBY EXPRESSLY CONSENT TO THE PERSONAL\nJURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN TEXAS FOR ANY LAWSUIT FILED THERE AGAINST ME BY\nTHE COMPANY CONCERNING MY EMPLOYMENT OR THE TERMINATION OF MY EMPLOYMENT OR ARISING FROM OR\nRELATING TO THIS AGREEMENT.\n(b) Entire Agreement. This Agreement, together with the Exhibits herein, sets forth the entire agreement and understanding between the\nCompany and me relating to the subject matter herein and supersedes all prior discussions or representations between us, including, but not limited\nto, any representations made during my interview(s) or relocation negotiations, whether written or oral, and any previously executed proprietary\ninformation agreements. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective\nunless in writing signed by the Company’s Chief Executive Officer or President and me. Any subsequent change or changes in my duties, salary or\ncompensation will not affect the validity or scope of this Agreement.\n(c) Severability. If one or more of the provisions in this Agreement are deemed void by law then the remaining provisions will continue\nin full force and effect.\n(d) Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and\nwill be for the benefit of the Company, its successors and its assigns.\n(e) Waiver. Waiver by the Company of a breach of any provision of this Agreement will not operate as a waiver of any other or\nsubsequent breach.\n(f) Survivorship. The rights and obligations of the parties to this Agreement will survive termination of my employment with the\nCompany.\n(g) Construction. The language used in this Agreement will be deemed to by the language chosen by the parties to express their mutual\nintent and no rules of strict construction will be applied against either party.\n(h) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be enforceable, and all of which\ntogether shall constitute one agreement.\n16. I acknowledge and agree to each of the following items:\n(a) I am executing this Agreement voluntarily and without any duress or undue influence by the Company or anyone else; and\n(b) I have carefully read this Agreement. I have asked any questions needed for me to understand the terms, consequences and binding\neffect of this Agreement and fully understand them; and\n-6-\n(c) I sought the advice of an attorney of my choice if I wanted to before signing this Agreement.\n[Remainder of this page intentionally left blank]\n_7-\nIN WITNESS WHEREOF, the parties have executed this Agreement on the day, month and year first set forth below, to be effective as of the\nEffective Date.\nDate:\nMAVENIR SYSTEMS, INC. “Employee”\nBy:\nSignature of Employee\nIts:\nType or Print Name of Employee\nMAVENIR SYSTEMS, INC.\nEMPLOYMENT, CONFIDENTIAL INFORMATION, AND INVENTION A SSIGNMENT AGREEMENT SIGNATURE PAGE\nTitle\n \nNo inventions or improvements\nAdditional Sheets Attached\nSignature of Employee:\nPrint Name of Employee:\nDate:\nEXHIBIT A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nDate\nIdentifying Number or Brief Description\nEXHIBIT B\nMAVENIR SYSTEMS, INC.\nTERMINATION CERTIFICATION\nI certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists,\ncorrespondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any\naforementioned items belonging to Mavenir Systems, Inc., its subsidiaries, affiliates, successors or assigns (together, the “Company”).\nI further certify that I have complied with all the terms of the Company’s Employment, Confidential Information, and Invention Assignment\nAgreement signed by me, including, but not limited to, the reporting of any Inventions or Other Inventions (as such terms are defined therein).\nI confirm my agreements contained in Section 2 (Confidential Information), Section 3 (Inventions), Section 5 (Solicitation of Employees),\nSection 6 (Interference), and Section 7 (Covenant Not to Compete) of the Employment, Confidential Information, and Invention Assignment\nAgreement.\nDate:\n(Employee’s Signature)\n(Type/Print Employee’s Name)\nEXHIBIT C\nMAVENIR SYSTEMS, INC.\nCONFLICT OF INTEREST GUIDELINES\nIt is the policy of Mavenir Systems, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere to the\nhighest principles of business ethics. Accordingly, all officers, employees and independent contractors must avoid activities which are in conflict, or\ngive the appearance of being in conflict, with these principles and with the interests of the Company. The following are potentially compromising\nsituations which must be avoided. Any exceptions must be reported to the Chief Executive Officer or President and written approval for continuation\nmust be obtained\n1. Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is a violation\nof this policy whether or not for personal gain and whether or not harm to the Company is intended. (The Employment, Confidential Information,\nand Invention Assignment Agreement elaborates on this principle and is a binding agreement.)\n2. Accepting or offering substantial gifts, excessive entertainment, favors or payments which may be deemed to constitute undue influence or\notherwise be improper or embarrassing to the Company.\n3. Participating in civic or professional organizations that might involve divulging confidential information of the Company.\n4. Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family relationship or\nis or appears to be a personal or social involvement.\n5. Initiating or approving any form of personal or social harassment of employees.\n6. Investing or holding outside directorship in suppliers, customers, or competing companies, including financial speculations, where such\ninvestment or directorship might influence in any manner a decision or course of action of the Company.\n7. Borrowing from or lending to employees, customers or suppliers.\n8. Acquiring real estate of interest to the Company.\n9. Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent employer or other\nperson or entity with whom obligations of confidentiality exist.\n10. Unlawfully discussing prices, costs, customers, sales or markets with competing companies.\n11. Making any unlawful agreement with distributors with respect to prices.\n12. Improperly using or authorizing the use of any inventions which are the subject of patent claims of any other person or entity.\n13. Engaging in any conduct which is not in the best interest of the Company.\nEach officer, employee and independent contractor must take every necessary action to ensure compliance with these guidelines and to bring\nproblem areas to the attention of higher management for review. Violations of this conflict of interest policy may result in discharge without\nwarning.	EX-10.24 26 filename26.htm\nExhibit 10.24\nMAVENIR SYSTEMS, INC.\nEMPLOYMENT, CONFIDENTIAL INFORMATION, AND INVENTION ASSIGNMENT AGREEMENT\nAs a condition of my employment with Mavenir Systems, Inc., a Delaware corporation, its subsidiaries, affiliates, successors or assigns\n(collectively, the "Company.") and in consideration of my receipt of confidential information upon execution of this Agreement and my receipt of the\ncompensation now and hereafter paid to me by the Company, I agree to the following terms and conditions of this Employment, Confidential\nInformation, and Invention Assignment Agreement (the "Agreement") which shall be effective as of the date set forth in the signature block\n("Effective Date"):\n1. At-Will Employment. I UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR AN\nUNSPECIFIED DURATION AND CONSTITUTES "AT-WILL" EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO\nTHE CONTRARY IS UNAUTHORIZED AND NOT VALID UNLESS OBTAINED IN WRITING AND SIGNED BY THE COMPANY'S CHIEF\nEXECUTIVE OFFICER OR PRESIDENT. I ACKNOWLEDGE THAT THIS EMPLOYMENT RELATIONSHIP MAY BE TERMINATED AT\nANY TIME, WITH OR WITHOUT GOOD CAUSE OR FOR ANY OR NO CAUSE, AT THE OPTION EITHER OF THE COMPANY OR\nMYSELF, WITH OR WITHOUT NOTICE. I FURTHER ACKNOWLEDGE THAT THE COMPANY MAY MODIFY JOB TITLES, SALARIES,\nAND BENEFITS FROM TIME TO TIME AS IT DEEMS NECESSARY, AND THAT ANY SUCH CHANGE SHALL NOT ALTER THE AT-\nWILL NATURE OF MY EMPLOYMENT RELATIONSHIP WITH THE COMPANY.\n2. Confidential Information.\n(a) Company Information. I agree at all times during the term of my employment and thereafter to hold in strictest confidence, and not to\nuse, except for the benefit of the Company, any of the Company's Confidential Information; or disclose to any person, firm or corporation any of the\nCompany's Confidential Information except as authorized in writing by the Company's Board of Directors or, if expressly authorized by the\nCompany's\nmanagement,\npursuant\nto\na\nwritten\nnondisclosure\nagreement\nthat\nsufficiently\nprotects\nthe\nConfidential\nInformation.\nI\nunderstand\nthat\n"Confidential Information" means any information that relates to the Company's actual or anticipated business or research and development,\ntechnical data, trade secrets or know-how, including, but not limited to, research, product plans or other information regarding the Company's\nproducts or services and markets therefor, customer lists and customers (including, but not limited to, the Company's customers on whom I called or\nwith whom I became acquainted during the term of my employment), software, developments, inventions, processes, formulas, technology, designs,\ndrawings, engineering, hardware configuration information, marketing, finances or other business information. I further understand that Confidentia\nInformation (i) includes the foregoing information even if disclosed to me in connection with the contemplation of my becoming an employee of the\nCompany, i.e., prior to the Effective Date, and (ii) does not include any of the foregoing items that is or becomes publicly known through no\nwrongful act or omission of mine or of others who were under confidentiality obligations as to the item or items involved or improvements or new\nversions thereof.\n(b) Former Employer Information. I agree that I will not, during my employment with the Company, improperly use, disclose, or induce\nthe\nCompany to use any confidential or proprietary information or trade secrets of any former or concurrent employer or other person or entity and\nthat I will not bring onto the premises of the Company any confidential or proprietary information or trade secrets belonging to any such employer,\nperson or entity unless consented to in writing by both the Company and such employer, person or entity.\n(c) Third Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential\nor proprietary information, subject to a duty on the Company's part to maintain the confidentiality of such information and to use it only for certain\nlimited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm\nor corporation or to use it except as necessary in carrying out my work for the Company consistent with the Company's agreement with such third\nparty.\n(d) Provision of Confidential Information. The Company agrees to provide me with certain Confidential Information regarding the\nCompany that will enable me to optimize the performance of my duties to the Company. I agree that the Company will have no obligation to make\navailable to me any of its Confidential Information after the termination of my employment.\n3. Inventions.\n(a) Inventions Retained and Licensed. I have attached hereto as Exhibit A is a list describing all inventions, original works of authorship,\ndevelopments, improvements and trade secrets that were made by me prior to my employment with the Company, relate to the Company's proposed\nbusiness, products or research and development, and are owned in whole or in part by me, ("Prior Inventions"); or, if no such list is attached or if\nExhibit\nA\nis\nunsigned,\nI\nrepresent\nthat\nthere\nare\nno\nsuch\nPrior\nInventions.\nI\nagree\nthat\nI\nwill\nnot\nincorporate,\nor\npermit\nto\nbe\nincorporated,\nany\nPrior\nInvention into a Company product, process or service without the Company's prior written consent. Nevertheless, if, in the course of my\nemployment with the Company, I incorporate into a Company product, process or service a Prior Invention, I hereby grant to the Company a\nnonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, transferable, sublicensable, worldwide license to reproduce, make derivative works\nof, distribute, perform, display, import, make, have made, modify, use, sell, offer to sell, and exploit in any other way such Prior Invention as part\nof\nor in connection with such product, process or service, and to practice any method related thereto.\n(b) Assignment of Inventions. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole right\nand benefit of the Company, and hereby assign to the Company, or its designee, all my right, title, and interest in and to any and all inventions,\noriginal works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets, whether or not\npatentable or registrable under copyright or similar laws, which I may solely or jointly conceive or develop or reduce to practice, or cause to be\nconceived or developed or reduced to practice, during the period of time I am in the employ of the Company (collectively, "Inventions"), except as\nprovided in Section 3(f) below. I further acknowledge that all original works of authorship which are made by me (solely or jointly with others)\nwithin the scope of and during the period of my employment with the Company and which are protectable by copyright are "works made for hire" as\nthat term is defined in the United States Copyright Act. I understand and agree that the decision whether or not to commercialize or market any\nInvention is within the Company's sole discretion and for the Company's sole benefit and that no royalty will be due to me as a result of the\nCompany's efforts to commercialize or market any such Invention.\n(c) Inventions Assigned to the United States. I agree to assign to the United States government all my right, title, and interest in and to\nany and all Inventions whenever such full title is required to be in the United States by a contract between the Company and the United States or any\nof its agencies.\n(d) Maintenance of Records. I agree to keep and maintain adequate, current, accurate, and authentic written records of all Inventions\nmade by me (solely or jointly with others) during the term of my employment with the Company. The records will be in the form of notes, sketches,\ndrawings, electronic files, reports, or any other format that may be specified by the Company. The records are and will be available to the Company\nand shall remain the Company's sole property at all times.\n(e) Patent and Copyright Registrations I agree to assist the Company, or its designee, at the Company's expense, in every proper way to\nsecure the Company's rights in any Inventions and any copyrights, patents, mask work rights or other intellectual property rights relating thereto in\nany and all countries, including, but not limited to, the disclosure to the Company of all pertinent information and data with respect thereto, the\nexecution of all applications, specifications, oaths, assignments and all other instruments that the Company deems necessary in order to apply for and\nobtain such rights and in order to assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title and\ninterest in and to such Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto. I further agree\nthat my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after the\ntermination of this Agreement. If the Company is unable because of my mental or physical incapacity or for any other reason to secure my signature\nto apply for or to pursue any application for any United States or foreign patents or copyright registrations covering any Inventions or original works\nof\nauthorship assigned to the Company as above, then I hereby irrevocably designate and appoint the Company and its duly authorized officers and\nagents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully\npermitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as\nif\nexecuted by me.\n2\n(f) Exception to Assignments. I understand that the provisions of this Agreement requiring assignment of Inventions to the Company do\nnot\napply to any Invention that I have developed entirely on my own time without using the Company's equipment, supplies, facilities, trade secret\ninformation or Confidential Information (an "Other Invention") except for those Other Inventions that either (i) relate at the time of conception or\nreduction to practice of such Other Invention to the Company's business, or actual or demonstrably anticipated research or development of the\nCompany or (ii) result from any work that I performed for the Company. I will advise the Company promptly in writing of any Invention that I\nbelieve constitutes an Other Invention and is not otherwise disclosed on Exhibit A. I agree that I will not incorporate, or permit to be incorporated,\nany Other Invention owned by me or in which I have an interest into a Company product, process or service without the Company's prior written\nconsent. Notwithstanding the foregoing sentence, if, in the course of my employment with the Company, I incorporate into a Company product,\nprocess or service an Other Invention owned by me or in which I have an interest, I hereby grant to the Company a nonexclusive, royalty-free, fully\npaid-up, irrevocable, perpetual, transferable, sublicensable, worldwide license to reproduce, make derivative works of, distribute, perform, display,\nimport, make, have made, modify, use, sell, offer to sell, and exploit in any other way such Other Invention as part of or in connection with such\nproduct, process or service, and to practice any method related thereto.\n4. Conflicting Employment.\n(a) Current Obligations. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation or consulting related to the business in which the Company is now involved, becomes involved or has plans to become involved in during\nthe term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.\n(b) Prior Relationships. Without limiting Section 4(a) above, I represent that I have no other agreements, relationships, or commitments\nto\nany\nother person or entity that conflict with my obligations to the Company under this Agreement or my ability to become employed and perform\nthe services for which I am being hired by the Company. I further agree that if I have signed a confidentiality agreement or similar type of agreement\nwith any former employer or other entity, I will comply with the terms of any such agreement to the extent that its terms are lawful under applicable\nlaw. I represent and warrant that after undertaking a careful search (including searches of my computers, cell phones, electronic devices, and\ndocuments), I have returned all property and confidential information belonging to all prior employers. Moreover, I agree to fully indemnify the\nCompany, its directors, officers, agents, employees, investors, shareholders, administrators, affiliates, divisions, subsidiaries, predecessor and\nsuccessor corporations, and assigns for all verdicts, judgments, settlements, and other losses incurred by any of them resulting from my breach of my\nobligations under any agreement to which I am a party or obligation to which I am bound, as well as any reasonable attorneys' fees and costs if the\nplaintiff is the prevailing party in such an action, except as prohibited by law.\n5. Solicitation of Employees. I agree that for a period of one (1) year immediately following the termination of my relationship with the\nCompany for any reason, whether with or without cause, at the option either of the Company or myself, with or without notice, I will not (either\ndirectly or indirectly, on behalf of myself or any third party) hire any of the Company's employees, consultants or contractors or solicit, induce,\nrecruit or encourage any of the Company's employees, consultants or contractors to leave their employment or terminate their relationship with the\nCompany.\n6.\nInterference. I agree that during the course of my employment and for a period of one (1) year immediately following the termination of my\nrelationship with the Company for any reason, whether with or without cause, at the option either of the Company or myself, with or without notice,\nI will not (either directly or indirectly, on behalf of myself or any third party) solicit to the detriment of the Company and/or for the benefit of any\ncompetitor of the Company, take away or attempt to take away, in whole or in part, any customer of the Company or otherwise interfere with the\nCompany's customer relationships.\n3\n7. Covenant Not to Compete.\n(a) I agree that during the course of my employment and for a period of one (1) year immediately following the termination of my\nemployment with the Company for any reason, whether with or without cause, at the option either of the Company or myself, with or without notice,\nI will not, either directly or indirectly, (i) serve as an advisor, agent, consultant, director, employee, officer, partner, proprietor or otherwise of,\n(ii)\nhave\nany\nownership\ninterest\nin\n(except\nfor\npassive\nownership\nof\none\npercent\n(1%)\nor\nless\nof\nany\nentity\nwhose\nsecurities\nhave\nbeen\nregistered\nunder the Securities Act of 1933, as amended, or Section 12 of the Securities Exchange Act of 1934, as amended) or (iii) participate in the\norganization, financing, operation, management or control of, any business in competition with the Company's business in the Territory (1) as\nconducted by the Company during the course of my employment with the Company or (2) planned to be conducted by the Company pursuant\nto\na\nproduct or business plan developed prior to the termination of my employment with the Company. "Territory." shall mean (A) all counties in the\nState of Texas, (B) all other states of the United States of America, (C) the European Union, (D) Asia, and (E) all other countries of the world\nin\nwhich the Company is then engaged in business. In particular, "Territory." shall include such geographic areas in which (I) the Company's products\nand services are then deployed, (II) the Company then has a customer or (III) the Company then has operations or otherwise targets sales and\nmarketing activities or conducts or has plans to conduct business during the course of my employment.\n(b) I acknowledge that my fulfillment of the obligations contained in this Agreement, including, but not limited to, my obligation neither\nto use, except for the benefit of the Company, or to disclose the Company's Confidential Information and my obligation not to compete contained in\nsubsection (a) above is necessary to protect the Company's Confidential Information and to preserve the Company's value and goodwill. I further\nacknowledge the time, geographic and scope limitations of my obligations under subsection (a) above are reasonable, especially in light of the\nCompany's desire to protect its Confidential Information, and that I will not be precluded from gainful employment if I am obligated not to compete\nwith the Company during the period and within the Territory as described above.\n(c) The covenants contained in subsection (a) above shall be construed as a series of separate covenants, one for each city, county and\nstate of any geographic area in the Territory. Except for geographic coverage, each such separate covenant shall be deemed identical in terms to the\ncovenant contained in subsection (a) above. If, in any judicial or arbitration proceeding, a court or arbitrator refuses to enforce any of such separate\ncovenants (or any part thereof), then such unenforceable covenant (or such part) shall be eliminated from this Agreement to the extent necessary to\npermit the remaining separate covenants (or portions thereof) to be enforced. In the event the provisions of subsection (a) above are deemed to\nexceed the time, geographic or scope limitations permitted by applicable law, then such provisions shall be reformed to the maximum time,\ngeographic or scope limitations, as the case may be, then permitted by such law.\n8.\nAcknowledgements I acknowledge that the non-solicitation and non-competition covenants I am providing in this Agreement are reasonable\nand necessary to protect the legitimate interests of the Company. I further acknowledge that my non-disclosure promises contained in this Agreement\nis in exchange for the Company's promises contained in this Agreement to provide me with confidential information and trade secrets of the\nCompany.\n9. Returning Company Documents, etc. I agree that, upon separation from employment with the Company or on demand by the Company\nduring my employment, I will immediately deliver to the Company (and will not keep in my possession, recreate or deliver to anyone else) any and\nall Company property including, but not limited to, the Company's Confidential Information, as well as all devices and equipment belonging to the\nCompany (including computers, handheld electronic devices, telephone equipment, and other electronic devices), Company credit cards, records,\ndata, notes, notebooks, reports, files, proposals, lists, correspondence (including emails and any other electronic correspondence), specifications,\ndrawings, blueprints, sketches, materials, photographs, charts, any other documents and property, and reproductions of any and all of the\naforementioned items that were developed by me pursuant to my employment with the Company, obtained by me in connection with my\nemployment with the Company, or otherwise belonging to the Company, its successors, or assigns, including, without limitation, those records\nmaintained pursuant to Section 3(e).U Upon separation from employment with the Company, I agree to immediately sign and deliver to the Company\nthe "Termination Certification" attached hereto as Exhibit B. I also consent to an exit interview to confirm my compliance with this Section 9. I\nfurther agree to keep the Company advised of my home and business address for a period of three (3) years after termination of my employment\nwith\nthe Company, so that the Company can contact me regarding my continuing obligations provided by this Agreement.\n10. Conflict of Interest Guidelines. I agree to diligently adhere to the Conflict of Interest Guidelines attached hereto as Exhibit C.\n4\n11. Further Assurances; No Conflict. I agree to execute any proper oath or verify any proper document required to carry out the terms of this\nAgreement. I represent that my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary\ninformation acquired by me in confidence or in trust prior to my employment by the Company. I have not entered into, and I agree I will not enter\ninto, any oral or written agreement in conflict herewith.\n12.\nViolation; Disciplinary Matters. I understand that any breach of this Agreement or violation of Company policies\nby\nme,\nincluding\nany\nunauthorized use or disclosure of Confidential Information of the Company or any third party during my employment may lead to disciplinary\naction, up to and including immediate termination and may further result in legal action by the Company.\n13. Notification to New Employer. In the event that I leave the employ of the Company, I hereby grant consent to notification by the Company\nto my new employer about my rights and obligations under this Agreement.\n14. Arbitration and Equitable Relief.\n(a) Arbitration. In consideration of my employment with the Company, its promise to arbitrate all employment-related disputes and my\nreceipt of the compensation, pay raises and other benefits paid to me by the Company, at present and in the future, I agree that, except as provided\nin\nsubsection (b) below, any and all controversies, claims, or disputes with anyone (including the Company and any employee, officer, director,\nshareholder or benefit plan of the Company in their capacity as such or otherwise) arising out of, relating to, or resulting from my employment with\nthe Company or the termination of my employment with the Company, including any breach of this Agreement, shall be subject to binding\narbitration shall be settled by arbitration to be held in Dallas, Texas in accordance with the rules then in effect of the American Arbitration\nAssociation. Disputes which I agree to arbitrate, and thereby agree to waive any right to a trial by jury, include any statutory claims under state or\nfederal law, including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act of 1990, the\nAge Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the Texas Fair Employment and Housing Act, the Texas\nLabor Code, claims of harassment, discrimination or wrongful termination and any statutory claims. I further understand that this Agreement to\narbitrate also applies to any disputes that the Company may have with me.\n(b) Procedure. I agree that any arbitration will be administered by the American Arbitration Association ("AAA") and that a neutral\narbitrator will be selected in a manner consistent with its National Rules for the Resolution of Employment Disputes. I agree that any arbitration\nunder this section shall be conducted in Dallas, Texas. The arbitration proceedings will allow for discovery according to the AAA National Rules for\nthe Resolution of Employment Disputes. I agree that the arbitrator shall have the power to decide any motions brought by any party to the arbitration,\nincluding motions for summary judgment and/or adjudication and motions to dismiss and demurrers, prior to any arbitration hearing. I agree that the\narbitrator shall issue a written decision on the merits. I also agree that the arbitrator shall have the power to award any remedies, including attorneys'\nfees and costs, available under applicable law. I understand the Company will pay for any administrative or hearing fees charged by the arbitrator or\nAAA except that I shall pay the first $200.00 of any filing fees associated with any arbitration I initiate. I agree that the arbitrator shall administer\nand conduct any arbitration in a manner consistent with the AAA's National Rules for the Resolution of Employment Disputes.\n(c) Remedy. Arbitration shall be the sole, exclusive and final remedy for any dispute between me and the Company. Accordingly, neither\nI nor the Company will be permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding the foregoing, the\narbitrator will not have the authority to disregard or refuse to enforce any lawful company policy, and the arbitrator shall not order or require\nthe\nCompany to adopt a policy not otherwise required by law which the Company has not adopted.\n(d) Equitable Remedies. I agree that it would be impossible or inadequate to measure and calculate the Company's damages from my\nbreach of Sections 2, 3, 5, 6 and 7 of this Agreement. Accordingly, I agree that if I breach any such Section, the Company will have available, in\naddition to any other right or remedy available, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or\nthreatened breach and to specific performance of any such provision of this Agreement. I further agree that no bond or other security shall be\nrequired in obtaining such equitable relief and I hereby consent to the issuance of such injunction and to the ordering of specific performance.\n5\n(e) Administrative relief. I understand that this Agreement does not prohibit me from pursuing an administrative claim with a local, state\nor federal administrative body such as the Equal Employment Opportunity Commission or the Workers' Compensation Commission. This\nAgreement does, however, preclude me from pursuing court action regarding any such claim.\n(f) Voluntary nature of agreement. I acknowledge and agree that I am executing this Agreement voluntarily and without any duress or\nundue\ninfluence\nby\nthe\nCompany\nor\nanyone\nelse.\nI\nfurther\nacknowledge\nand\nagree\nthat\nI\nhave\ncarefully\nread\nthis\nAgreement\nand\nthat\nI\nhave\nasked\nany\nquestions needed for me to understand the terms, consequences and binding effect of this Agreement and fully understand it, including that I AM\nWAIVING MY RIGHT TO A JURY TRIAL. Finally, I agree that I have been provided an opportunity to seek the advice of an attorney of my choice\nbefore signing this Agreement.\n15. General Provisions.\n(a) Governing Law; Consent to Personal Jurisdiction. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE\nOF TEXAS WITHOUT REGARD FOR CONFLICTS OF LAWS PRINCIPLES. I HEREBY EXPRESSLY CONSENT TO THE PERSONAL\nJURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN TEXAS FOR ANY LAWSUIT FILED THERE AGAINST ME BY\nTHE COMPANY CONCERNING MY EMPLOYMENT OR THE TERMINATION OF MY EMPLOYMENT OR ARISING FROM OR\nRELATING TO THIS AGREEMENT.\n(b) Entire Agreement. This Agreement, together with the Exhibits herein, sets forth the entire agreement and understanding between the\nCompany and me relating to the subject matter herein and supersedes all prior discussions or representations between us, including, but not limited\nto, any representations made during my interview(s) or relocation negotiations, whether written or oral, and any previously executed proprietary\ninformation agreements. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective\nunless in writing signed by the Company's Chief Executive Officer or President and me. Any subsequent change or changes in my duties, salary or\ncompensation will not affect the validity or scope of this Agreement.\n(c) Severability. If one or more of the provisions in this Agreement are deemed void by law then the remaining provisions will continue\nin full force and effect.\n(d) Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and\nwill be for the benefit of the Company, its successors and its assigns.\n(e) Waiver. Waiver by the Company of a breach of any provision of this Agreement will not operate as a waiver of any other or\nsubsequent breach.\n(f) Survivorship. The rights and obligations of the parties to this Agreement will survive termination of my employment with the\nCompany.\n(g) Construction. The language used in this Agreement will be deemed to by the language chosen by the parties to express their mutual\nintent and no rules of strict construction will be applied against either party.\n(h) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be enforceable, and all of which\ntogether shall constitute one agreement.\n16. I acknowledge and agree to each of the following items:\n(a) I am executing this Agreement voluntarily and without any duress or undue influence by the Company or anyone else; and\n(b) I have carefully read this Agreement. I have asked any questions needed for me to understand the terms, consequences and binding\neffect of this Agreement and fully understand them; and\n6\n(c) I sought the advice of an attorney of my choice if I wanted to before signing this Agreement.\n[Remainder of this page intentionally left blank]\n- 7 -\nIN WITNESS WHEREOF, the parties have executed this Agreement on the day, month and year first set forth below, to be effective as of the\nEffective Date.\nDate: .\nMAVENIR SYSTEMS, INC.\n"Employee"\nBy:\nSignature of Employee\nIts:\nType or Print Name of Employee\nMAVENIR SYSTEMS, INC.\nEMPLOYMENT, CONFIDENTIAL INFORMATION, AND INVENTION ASSIGNMENT AGREEMENT SIGNATURE PAGE\nEXHIBIT A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nTitle\nDate\nIdentifying Number or Brief Description\nNo inventions or improvements\nAdditional Sheets Attached\nSignature of Employee:\nPrint Name of Employee:\nDate:\nEXHIBIT B\nMAVENIR SYSTEMS, INC.\nTERMINATION CERTIFICATION\nI certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists,\ncorrespondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any\naforementioned items belonging to Mavenir Systems, Inc., its subsidiaries, affiliates, successors or assigns (together, the "Company.").\nI\nfurther certify that I have complied with all the terms of the Company's Employment, Confidential Information, and Invention Assignment\nAgreement signed by me, including, but not limited to, the reporting of any Inventions or Other Inventions (as such terms are defined therein).\nI confirm my agreements contained in Section 2 (Confidential Information), Section 3 (Inventions), Section 5 (Solicitation of Employees),\nSection 6 (Interference), and Section 7 (Covenant Not to Compete) of the Employment, Confidential Information, and Invention Assignment\nAgreement.\nDate:\n(Employee's Signature)\n(Type/Print Employee's Name)\nEXHIBIT C\nMAVENIR SYSTEMS, INC.\nCONFLICT OF INTEREST GUIDELINES\nIt is the policy of Mavenir Systems, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere to the\nhighest principles of business ethics. Accordingly, all officers, employees and independent contractors must avoid activities which are in conflict, or\ngive the appearance of being in conflict, with these principles and with the interests of the Company. The following are potentially compromising\nsituations which must be avoided. Any exceptions must be reported to the Chief Executive Officer or President and written approval for continuation\nmust be obtained\n1. Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is a violation\nof this policy whether or not for personal gain and whether or not harm to the Company is intended. (The Employment, Confidential Information,\nand Invention Assignment Agreement elaborates on this principle and is a binding agreement.)\n2. Accepting or offering substantial gifts, excessive entertainment, favors or payments which may be deemed to constitute undue influence or\notherwise be improper or embarrassing to the Company.\n3. Participating in civic or professional organizations that might involve divulging confidential information of the Company.\n4. Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family relationship or\nis or appears to be a personal or social involvement.\n5. Initiating or approving any form of personal or social harassment of employees.\n6. Investing or holding outside directorship in suppliers, customers, or competing companies, including financial speculations, where such\ninvestment or directorship might influence in any manner a decision or course of action of the Company.\n7. Borrowing from or lending to employees, customers or suppliers.\n8. Acquiring real estate of interest to the Company.\n9.\nImproperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent employer or other\nperson or entity with whom obligations of confidentiality exist.\n10. Unlawfully discussing prices, costs, customers, sales or markets with competing companies.\n11. Making any unlawful agreement with distributors with respect to prices.\n12. Improperly using or authorizing the use of any inventions which are the subject of patent claims of any other person or entity.\n13. Engaging in any conduct which is not in the best interest of the Company.\nEach officer, employee and independent contractor must take every necessary action to ensure compliance with these guidelines and to bring\nproblem areas to the attention of higher management for review. Violations of this conflict of interest policy may result in discharge without\nwarning.	EX-10.24 26 filename26.htm\nExhibit 10.24\nMAVENIR SYSTEMS, INC.\nEMPLOYMENT, CONFIDENTIAL INFORMATION, AND INVENTION ASSIGNMENT AGREEMENT\nAs a condition of my employment with Mavenir Systems, Inc., a Delaware corporation, its subsidiaries, affiliates, successors or assigns\n(collectively, the “Company”) and in consideration of my receipt of confidential information upon execution of this Agreement and my receipt of the\ncompensation now and hereafter paid to me by the Company, I agree to the following terms and conditions of this Employment, Confidential\nInformation, and Invention Assignment Agreement (the “Agreement”) which shall be effective as of the date set forth in the signature block\n(“Effective Date”):\n1. At-Will Employment. I UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR AN\nUNSPECIFIED DURATION AND CONSTITUTES “AT-WILL” EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO\nTHE CONTRARY IS UNAUTHORIZED AND NOT VALID UNLESS OBTAINED IN WRITING AND SIGNED BY THE COMPANY’S CHIEF\nEXECUTIVE OFFICER OR PRESIDENT. I ACKNOWLEDGE THAT THIS EMPLOYMENT RELATIONSHIP MAY BE TERMINATED AT\nANY TIME, WITH OR WITHOUT GOOD CAUSE OR FOR ANY OR NO CAUSE, AT THE OPTION EITHER OF THE COMPANY OR\nMYSELF, WITH OR WITHOUT NOTICE. I FURTHER ACKNOWLEDGE THAT THE COMPANY MAY MODIFY JOB TITLES, SALARIES,\nAND BENEFITS FROM TIME TO TIME AS IT DEEMS NECESSARY, AND THAT ANY SUCH CHANGE SHALL NOT ALTER THE AT-\nWILL NATURE OF MY EMPLOYMENT RELATIONSHIP WITH THE COMPANY.\n2. Confidential Information.\n(a) Company Information. I agree at all times during the term of my employment and thereafter to hold in strictest confidence, and not to\nuse, except for the benefit of the Company, any of the Company’s Confidential Information; or disclose to any person, firm or corporation any of the\nCompany’s Confidential Information except as authorized in writing by the Company’s Board of Directors or, if expressly authorized by the\nCompany’s management, pursuant to a written nondisclosure agreement that sufficiently protects the Confidential Information. I understand that\n“Confidential Information” means any information that relates to the Company’s actual or anticipated business or research and development,\ntechnical data, trade secrets or know-how, including, but not limited to, research, product plans or other information regarding the Company’s\nproducts or services and markets therefor, customer lists and customers (including, but not limited to, the Company’s customers on whom I called or\nwith whom I became acquainted during the term of my employment), software, developments, inventions, processes, formulas, technology, designs,\ndrawings, engineering, hardware configuration information, marketing, finances or other business information. I further understand that Confidential\nInformation (i) includes the foregoing information even if disclosed to me in connection with the contemplation of my becoming an employee of the\nCompany, i.e., prior to the Effective Date, and (ii) does not include any of the foregoing items that is or becomes publicly known through no\nwrongful act or omission of mine or of others who were under confidentiality obligations as to the item or items involved or improvements or new\nversions thereof.\n(b) Former Employer Information. I agree that I will not, during my employment with the Company, improperly use, disclose, or induce\nthe Company to use any confidential or proprietary information or trade secrets of any former or concurrent employer or other person or entity and\nthat I will not bring onto the premises of the Company any confidential or proprietary information or trade secrets belonging to any such employer,\nperson or entity unless consented to in writing by both the Company and such employer, person or entity.\n(c) Third Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential\nor proprietary information, subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain\nlimited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm\nor corporation or to use it except as necessary in carrying out my work for the Company consistent with the Company’s agreement with such third\nparty.\n(d) Provision of Confidential Information. The Company agrees to provide me with certain Confidential Information regarding the\nCompany that will enable me to optimize the performance of my duties to the Company. I agree that the Company will have no obligation to make\navailable to me any of its Confidential Information after the termination of my employment.\n3. Inventions.\n(a) Inventions Retained and Licensed. I have attached hereto as Exhibit A is a list describing all inventions, original works of authorship,\ndevelopments, improvements and trade secrets that were made by me prior to my employment with the Company, relate to the Company’s proposed\nbusiness, products or research and development, and are owned in whole or in part by me, (“Prior Inventions”); or, if no such list is attached or if\nExhibit A is unsigned, I represent that there are no such Prior Inventions. I agree that I will not incorporate, or permit to be incorporated, any Prior\nInvention into a Company product, process or service without the Company’s prior written consent. Nevertheless, if, in the course of my\nemployment with the Company, I incorporate into a Company product, process or service a Prior Invention, I hereby grant to the Company a\nnonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, transferable, sublicensable, worldwide license to reproduce, make derivative works\nof, distribute, perform, display, import, make, have made, modify, use, sell, offer to sell, and exploit in any other way such Prior Invention as part of\nor in connection with such product, process or service, and to practice any method related thereto.\n(b) Assignment of Inventions. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole right\nand benefit of the Company, and hereby assign to the Company, or its designee, all my right, title, and interest in and to any and all inventions,\noriginal works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets, whether or not\npatentable or registrable under copyright or similar laws, which I may solely or jointly conceive or develop or reduce to practice, or cause to be\nconceived or developed or reduced to practice, during the period of time I am in the employ of the Company (collectively, “Inventions”), except as\nprovided in Section 3(f) below. I further acknowledge that all original works of authorship which are made by me (solely or jointly with others)\nwithin the scope of and during the period of my employment with the Company and which are protectable by copyright are “works made for hire” as\nthat term is defined in the United States Copyright Act. I understand and agree that the decision whether or not to commercialize or market any\nInvention is within the Company’s sole discretion and for the Company’s sole benefit and that no royalty will be due to me as a result of the\nCompany’s efforts to commercialize or market any such Invention.\n(c) Inventions Assigned to the United States. I agree to assign to the United States government all my right, title, and interest in and to\nany and all Inventions whenever such full title is required to be in the United States by a contract between the Company and the United States or any\nof its agencies.\n(d) Maintenance of Records. I agree to keep and maintain adequate, current, accurate, and authentic written records of all Inventions\nmade by me (solely or jointly with others) during the term of my employment with the Company. The records will be in the form of notes, sketches,\ndrawings, electronic files, reports, or any other format that may be specified by the Company. The records are and will be available to the Company\nand shall remain the Company’s sole property at all times.\n(e) Patent and Copyright Registrations. I agree to assist the Company, or its designee, at the Company’s expense, in every proper way to\nsecure the Company’s rights in any Inventions and any copyrights, patents, mask work rights or other intellectual property rights relating thereto in\nany and all countries, including, but not limited to, the disclosure to the Company of all pertinent information and data with respect thereto, the\nexecution of all applications, specifications, oaths, assignments and all other instruments that the Company deems necessary in order to apply for and\nobtain such rights and in order to assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title and\ninterest in and to such Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto. I further agree\nthat my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after the\ntermination of this Agreement. If the Company is unable because of my mental or physical incapacity or for any other reason to secure my signature\nto apply for or to pursue any application for any United States or foreign patents or copyright registrations covering any Inventions or original works\nof authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the Company and its duly authorized officers and\nagents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully\npermitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if\nexecuted by me.\n-2-\n(f) Exception to Assignments. I understand that the provisions of this Agreement requiring assignment of Inventions to the Company do\nnot apply to any Invention that I have developed entirely on my own time without using the Company’s equipment, supplies, facilities, trade secret\ninformation or Confidential Information (an “Other Invention”) except for those Other Inventions that either (i) relate at the time of conception or\nreduction to practice of such Other Invention to the Company’s business, or actual or demonstrably anticipated research or development of the\nCompany or (ii) result from any work that I performed for the Company. I will advise the Company promptly in writing of any Invention that I\nbelieve constitutes an Other Invention and is not otherwise disclosed on Exhibit A. I agree that I will not incorporate, or permit to be incorporated,\nany Other Invention owned by me or in which I have an interest into a Company product, process or service without the Company’s prior written\nconsent. Notwithstanding the foregoing sentence, if, in the course of my employment with the Company, I incorporate into a Company product,\nprocess or service an Other Invention owned by me or in which I have an interest, I hereby grant to the Company a nonexclusive, royalty-free, fully\npaid-up, irrevocable, perpetual, transferable, sublicensable, worldwide license to reproduce, make derivative works of, distribute, perform, display,\nimport, make, have made, modify, use, sell, offer to sell, and exploit in any other way such Other Invention as part of or in connection with such\nproduct, process or service, and to practice any method related thereto.\n4. Conflicting Employment.\n(a) Current Obligations. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation or consulting related to the business in which the Company is now involved, becomes involved or has plans to become involved in during\nthe term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.\n(b) Prior Relationships. Without limiting Section 4(a) above, I represent that I have no other agreements, relationships, or commitments\nto any other person or entity that conflict with my obligations to the Company under this Agreement or my ability to become employed and perform\nthe services for which I am being hired by the Company. I further agree that if I have signed a confidentiality agreement or similar type of agreement\nwith any former employer or other entity, I will comply with the terms of any such agreement to the extent that its terms are lawful under applicable\nlaw. I represent and warrant that after undertaking a careful search (including searches of my computers, cell phones, electronic devices, and\ndocuments), I have returned all property and confidential information belonging to all prior employers. Moreover, I agree to fully indemnify the\nCompany, its directors, officers, agents, employees, investors, shareholders, administrators, affiliates, divisions, subsidiaries, predecessor and\nsuccessor corporations, and assigns for all verdicts, judgments, settlements, and other losses incurred by any of them resulting from my breach of my\nobligations under any agreement to which I am a party or obligation to which I am bound, as well as any reasonable attorneys’ fees and costs if the\nplaintiff is the prevailing party in such an action, except as prohibited by law.\n5. Solicitation of Employees. I agree that for a period of one (1) year immediately following the termination of my relationship with the\nCompany for any reason, whether with or without cause, at the option either of the Company or myself, with or without notice, I will not (either\ndirectly or indirectly, on behalf of myself or any third party) hire any of the Company’s employees, consultants or contractors or solicit, induce,\nrecruit or encourage any of the Company’s employees, consultants or contractors to leave their employment or terminate their relationship with the\nCompany.\n6. Interference. I agree that during the course of my employment and for a period of one (1) year immediately following the termination of my\nrelationship with the Company for any reason, whether with or without cause, at the option either of the Company or myself, with or without notice,\nI will not (either directly or indirectly, on behalf of myself or any third party) solicit to the detriment of the Company and/or for the benefit of any\ncompetitor of the Company, take away or attempt to take away, in whole or in part, any customer of the Company or otherwise interfere with the\nCompany’s customer relationships.\n-3-\n7. Covenant Not to Compete.\n(a) I agree that during the course of my employment and for a period of one (1) year immediately following the termination of my\nemployment with the Company for any reason, whether with or without cause, at the option either of the Company or myself, with or without notice,\nI will not, either directly or indirectly, (i) serve as an advisor, agent, consultant, director, employee, officer, partner, proprietor or otherwise of,\n(ii) have any ownership interest in (except for passive ownership of one percent (1%) or less of any entity whose securities have been registered\nunder the Securities Act of 1933, as amended, or Section 12 of the Securities Exchange Act of 1934, as amended) or (iii) participate in the\norganization, financing, operation, management or control of, any business in competition with the Company’s business in the Territory (1) as\nconducted by the Company during the course of my employment with the Company or (2) planned to be conducted by the Company pursuant to a\nproduct or business plan developed prior to the termination of my employment with the Company. “Territory” shall mean (A) all counties in the\nState of Texas, (B) all other states of the United States of America, (C) the European Union, (D) Asia, and (E) all other countries of the world in\nwhich the Company is then engaged in business. In particular, “Territory” shall include such geographic areas in which (I) the Company’s products\nand services are then deployed, (II) the Company then has a customer or (III) the Company then has operations or otherwise targets sales and\nmarketing activities or conducts or has plans to conduct business during the course of my employment.\n(b) I acknowledge that my fulfillment of the obligations contained in this Agreement, including, but not limited to, my obligation neither\nto use, except for the benefit of the Company, or to disclose the Company’s Confidential Information and my obligation not to compete contained in\nsubsection (a) above is necessary to protect the Company’s Confidential Information and to preserve the Company’s value and goodwill. I further\nacknowledge the time, geographic and scope limitations of my obligations under subsection (a) above are reasonable, especially in light of the\nCompany’s desire to protect its Confidential Information, and that I will not be precluded from gainful employment if I am obligated not to compete\nwith the Company during the period and within the Territory as described above.\n(c) The covenants contained in subsection (a) above shall be construed as a series of separate covenants, one for each city, county and\nstate of any geographic area in the Territory. Except for geographic coverage, each such separate covenant shall be deemed identical in terms to the\ncovenant contained in subsection (a) above. If, in any judicial or arbitration proceeding, a court or arbitrator refuses to enforce any of such separate\ncovenants (or any part thereof), then such unenforceable covenant (or such part) shall be eliminated from this Agreement to the extent necessary to\npermit the remaining separate covenants (or portions thereof) to be enforced. In the event the provisions of subsection (a) above are deemed to\nexceed the time, geographic or scope limitations permitted by applicable law, then such provisions shall be reformed to the maximum time,\ngeographic or scope limitations, as the case may be, then permitted by such law.\n8. Acknowledgements. I acknowledge that the non-solicitation and non-competition covenants I am providing in this Agreement are reasonable\nand necessary to protect the legitimate interests of the Company. I further acknowledge that my non-disclosure promises contained in this Agreement\nis in exchange for the Company’s promises contained in this Agreement to provide me with confidential information and trade secrets of the\nCompany.\n9. Returning Company Documents, etc. I agree that, upon separation from employment with the Company or on demand by the Company\nduring my employment, I will immediately deliver to the Company (and will not keep in my possession, recreate or deliver to anyone else) any and\nall Company property, including, but not limited to, the Company’s Confidential Information, as well as all devices and equipment belonging to the\nCompany (including computers, handheld electronic devices, telephone equipment, and other electronic devices), Company credit cards, records,\ndata, notes, notebooks, reports, files, proposals, lists, correspondence (including emails and any other electronic correspondence), specifications,\ndrawings, blueprints, sketches, materials, photographs, charts, any other documents and property, and reproductions of any and all of the\naforementioned items that were developed by me pursuant to my employment with the Company, obtained by me in connection with my\nemployment with the Company, or otherwise belonging to the Company, its successors, or assigns, including, without limitation, those records\nmaintained pursuant to Section 3(e).Upon separation from employment with the Company, I agree to immediately sign and deliver to the Company\nthe “Termination Certification” attached hereto as Exhibit B. I also consent to an exit interview to confirm my compliance with this Section 9. I\nfurther agree to keep the Company advised of my home and business address for a period of three (3) years after termination of my employment with\nthe Company, so that the Company can contact me regarding my continuing obligations provided by this Agreement.\n10. Conflict of Interest Guidelines. I agree to diligently adhere to the Conflict of Interest Guidelines attached hereto as Exhibit C.\n-4-\n11. Further Assurances; No Conflict. I agree to execute any proper oath or verify any proper document required to carry out the terms of this\nAgreement. I represent that my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary\ninformation acquired by me in confidence or in trust prior to my employment by the Company. I have not entered into, and I agree I will not enter\ninto, any oral or written agreement in conflict herewith.\n12. Violation; Disciplinary Matters. I understand that any breach of this Agreement or violation of Company policies by me, including any\nunauthorized use or disclosure of Confidential Information of the Company or any third party during my employment may lead to disciplinary\naction, up to and including immediate termination and may further result in legal action by the Company.\n13. Notification to New Employer. In the event that I leave the employ of the Company, I hereby grant consent to notification by the Company\nto my new employer about my rights and obligations under this Agreement.\n14. Arbitration and Equitable Relief.\n(a) Arbitration. In consideration of my employment with the Company, its promise to arbitrate all employment-related disputes and my\nreceipt of the compensation, pay raises and other benefits paid to me by the Company, at present and in the future, I agree that, except as provided in\nsubsection (b) below, any and all controversies, claims, or disputes with anyone (including the Company and any employee, officer, director,\nshareholder or benefit plan of the Company in their capacity as such or otherwise) arising out of, relating to, or resulting from my employment with\nthe Company or the termination of my employment with the Company, including any breach of this Agreement, shall be subject to binding\narbitration shall be settled by arbitration to be held in Dallas, Texas in accordance with the rules then in effect of the American Arbitration\nAssociation. Disputes which I agree to arbitrate, and thereby agree to waive any right to a trial by jury, include any statutory claims under state or\nfederal law, including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act of 1990, the\nAge Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the Texas Fair Employment and Housing Act, the Texas\nLabor Code, claims of harassment, discrimination or wrongful termination and any statutory claims. I further understand that this Agreement to\narbitrate also applies to any disputes that the Company may have with me.\n(b) Procedure. I agree that any arbitration will be administered by the American Arbitration Association (“AAA”) and that a neutral\narbitrator will be selected in a manner consistent with its National Rules for the Resolution of Employment Disputes. I agree that any arbitration\nunder this section shall be conducted in Dallas, Texas. The arbitration proceedings will allow for discovery according to the AAA National Rules for\nthe Resolution of Employment Disputes. I agree that the arbitrator shall have the power to decide any motions brought by any party to the arbitration,\nincluding motions for summary judgment and/or adjudication and motions to dismiss and demurrers, prior to any arbitration hearing. I agree that the\narbitrator shall issue a written decision on the merits. I also agree that the arbitrator shall have the power to award any remedies, including attorneys’\nfees and costs, available under applicable law. I understand the Company will pay for any administrative or hearing fees charged by the arbitrator or\nAAA except that I shall pay the first $200.00 of any filing fees associated with any arbitration I initiate. I agree that the arbitrator shall administer\nand conduct any arbitration in a manner consistent with the AAA’s National Rules for the Resolution of Employment Disputes.\n(c) Remedy. Arbitration shall be the sole, exclusive and final remedy for any dispute between me and the Company. Accordingly, neither\nI nor the Company will be permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding the foregoing, the\narbitrator will not have the authority to disregard or refuse to enforce any lawful company policy, and the arbitrator shall not order or require the\nCompany to adopt a policy not otherwise required by law which the Company has not adopted.\n(d) Equitable Remedies. I agree that it would be impossible or inadequate to measure and calculate the Company’s damages from my\nbreach of Sections 2, 3, 5, 6 and 7 of this Agreement. Accordingly, I agree that if I breach any such Section, the Company will have available, in\naddition to any other right or remedy available, the right to obtain an injunction from a court of competent jurisdiction restraining such breach or\nthreatened breach and to specific performance of any such provision of this Agreement. I further agree that no bond or other security shall be\nrequired in obtaining such equitable relief and I hereby consent to the issuance of such injunction and to the ordering of specific performance.\n-5-\n(e) Administrative relief. I understand that this Agreement does not prohibit me from pursuing an administrative claim with a local, state\nor federal administrative body such as the Equal Employment Opportunity Commission or the Workers’ Compensation Commission. This\nAgreement does, however, preclude me from pursuing court action regarding any such claim.\n(f) Voluntary nature of agreement. I acknowledge and agree that I am executing this Agreement voluntarily and without any duress or\nundue influence by the Company or anyone else. I further acknowledge and agree that I have carefully read this Agreement and that I have asked any\nquestions needed for me to understand the terms, consequences and binding effect of this Agreement and fully understand it, including that I AM\nWAIVING MY RIGHT TO A JURY TRIAL. Finally, I agree that I have been provided an opportunity to seek the advice of an attorney of my choice\nbefore signing this Agreement.\n15. General Provisions.\n(a) Governing Law; Consent to Personal Jurisdiction. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE\nOF TEXAS WITHOUT REGARD FOR CONFLICTS OF LAWS PRINCIPLES. I HEREBY EXPRESSLY CONSENT TO THE PERSONAL\nJURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN TEXAS FOR ANY LAWSUIT FILED THERE AGAINST ME BY\nTHE COMPANY CONCERNING MY EMPLOYMENT OR THE TERMINATION OF MY EMPLOYMENT OR ARISING FROM OR\nRELATING TO THIS AGREEMENT.\n(b) Entire Agreement. This Agreement, together with the Exhibits herein, sets forth the entire agreement and understanding between the\nCompany and me relating to the subject matter herein and supersedes all prior discussions or representations between us, including, but not limited\nto, any representations made during my interview(s) or relocation negotiations, whether written or oral, and any previously executed proprietary\ninformation agreements. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective\nunless in writing signed by the Company’s Chief Executive Officer or President and me. Any subsequent change or changes in my duties, salary or\ncompensation will not affect the validity or scope of this Agreement.\n(c) Severability. If one or more of the provisions in this Agreement are deemed void by law then the remaining provisions will continue\nin full force and effect.\n(d) Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and\nwill be for the benefit of the Company, its successors and its assigns.\n(e) Waiver. Waiver by the Company of a breach of any provision of this Agreement will not operate as a waiver of any other or\nsubsequent breach.\n(f) Survivorship. The rights and obligations of the parties to this Agreement will survive termination of my employment with the\nCompany.\n(g) Construction. The language used in this Agreement will be deemed to by the language chosen by the parties to express their mutual\nintent and no rules of strict construction will be applied against either party.\n(h) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be enforceable, and all of which\ntogether shall constitute one agreement.\n16. I acknowledge and agree to each of the following items:\n(a) I am executing this Agreement voluntarily and without any duress or undue influence by the Company or anyone else; and\n(b) I have carefully read this Agreement. I have asked any questions needed for me to understand the terms, consequences and binding\neffect of this Agreement and fully understand them; and\n-6-\n(c) I sought the advice of an attorney of my choice if I wanted to before signing this Agreement.\n[Remainder of this page intentionally left blank]\n-7-\nIN WITNESS WHEREOF, the parties have executed this Agreement on the day, month and year first set forth below, to be effective as of the\nEffective Date.\nDate:\n.\n.\nMAVENIR SYSTEMS, INC.\n“Employee”\nBy:\nSignature of Employee\nIts:\nType or Print Name of Employee\nMAVENIR SYSTEMS, INC.\nEMPLOYMENT, CONFIDENTIAL INFORMATION, AND INVENTION A SSIGNMENT AGREEMENT SIGNATURE PAGE\nEXHIBIT A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nTitle\nDate\nIdentifying Number or Brief Description\nNo inventions or improvements\nAdditional Sheets Attached\nSignature of Employee:\nPrint Name of Employee:\nDate:\nEXHIBIT B\nMAVENIR SYSTEMS, INC.\nTERMINATION CERTIFICATION\nI certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists,\ncorrespondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any\naforementioned items belonging to Mavenir Systems, Inc., its subsidiaries, affiliates, successors or assigns (together, the “Company”).\nI further certify that I have complied with all the terms of the Company’s Employment, Confidential Information, and Invention Assignment\nAgreement signed by me, including, but not limited to, the reporting of any Inventions or Other Inventions (as such terms are defined therein).\nI confirm my agreements contained in Section 2 (Confidential Information), Section 3 (Inventions), Section 5 (Solicitation of Employees),\nSection 6 (Interference), and Section 7 (Covenant Not to Compete) of the Employment, Confidential Information, and Invention Assignment\nAgreement.\nDate:\n(Employee’s Signature)\n(Type/Print Employee’s Name)\nEXHIBIT C\nMAVENIR SYSTEMS, INC.\nCONFLICT OF INTEREST GUIDELINES\nIt is the policy of Mavenir Systems, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere to the\nhighest principles of business ethics. Accordingly, all officers, employees and independent contractors must avoid activities which are in conflict, or\ngive the appearance of being in conflict, with these principles and with the interests of the Company. The following are potentially compromising\nsituations which must be avoided. Any exceptions must be reported to the Chief Executive Officer or President and written approval for continuation\nmust be obtained\n1. Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is a violation\nof this policy whether or not for personal gain and whether or not harm to the Company is intended. (The Employment, Confidential Information,\nand Invention Assignment Agreement elaborates on this principle and is a binding agreement.)\n2. Accepting or offering substantial gifts, excessive entertainment, favors or payments which may be deemed to constitute undue influence or\notherwise be improper or embarrassing to the Company.\n3. Participating in civic or professional organizations that might involve divulging confidential information of the Company.\n4. Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family relationship or\nis or appears to be a personal or social involvement.\n5. Initiating or approving any form of personal or social harassment of employees.\n6. Investing or holding outside directorship in suppliers, customers, or competing companies, including financial speculations, where such\ninvestment or directorship might influence in any manner a decision or course of action of the Company.\n7. Borrowing from or lending to employees, customers or suppliers.\n8. Acquiring real estate of interest to the Company.\n9. Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent employer or other\nperson or entity with whom obligations of confidentiality exist.\n10. Unlawfully discussing prices, costs, customers, sales or markets with competing companies.\n11. Making any unlawful agreement with distributors with respect to prices.\n12. Improperly using or authorizing the use of any inventions which are the subject of patent claims of any other person or entity.\n13. Engaging in any conduct which is not in the best interest of the Company.\nEach officer, employee and independent contractor must take every necessary action to ensure compliance with these guidelines and to bring\nproblem areas to the attention of higher management for review. Violations of this conflict of interest policy may result in discharge without\nwarning.
+493ef7e50f4c6d6d506180e77608f9bb.pdf	effective_date jurisdiction party term	EX-10 .3 16 exhibit10_3release.htm MUTUAL SETTLEMENT, RELEASE OF DEBT, COVENANT NOT TO SUE, WAIVER, AND NON-\nDISCLOSURE AGREEMENT BETWEEN CORPSENSE CONSULTING AND CADDYSTATS, INC.\nExhibit 10.3\nMUTUAL SETTLEMENT, RELEASE OF DEBT, COVENANT NOT\nTO SUE, WAIVER, AND NON-DISCLOSURE AGREEMENT (“Agreement”)\nWHEREAS, Corpsense Consulting., collectively and on behalf of all successors, heirs, executors, administrators, legal\nrepresentatives, and assigns (hereinafter referred to collectively as “Corpsense”), and Caddystats, Inc., and their successors and\nlegal representatives and (hereinafter referred to collectively as the “Company”), have reached an agreement with respect to all\nmatters relating to the debts for services rendered to the Company, including but not limited bookkeeping services and any and all\nagreements, understandings or commitments Corpsense may have had with the Company up until even date herewith;\nNOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth herein, Corpsense and Company\nagree as follows:\n1. Full Satisfaction. Corpsense and Company, by entering into this Agreement, accept the benefits and covenants to be\nconferred hereunder in full and complete satisfaction of any and all asserted and unasserted debts and claims of any kind or\ndescription against Company and Corpsense as of the date of this Agreement, including, but not limited to, any asserted and\nunasserted claims arising under any Federal, State and/or local law, including but not limited to any case law both Federal and\nState, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other Securities and\nExchange Commission regulations, any and all Delaware statutes and case law including but not limited to the Delaware\nCode, Title 8 of the Delaware Code and any other “blue sky law”, local ordinance, and/or other duty and/or other corporate\nrelated obligation as well as any claims arising from tort, �ortuous course of conduct, fraud, contract (including but not\nlimited to any written, oral, or implied contract), obligations of “good faith,” public policy, statute, common law, equity, and\nall claims for monetary and equitable relief, punitive and compensatory relief, and attorneys’ fees and costs.\n2. Release. In consideration of the benefits, covenants and undertakings above, Corpsense and Company hereby release and\ndischarge the other from any and all liability, and waive any and all rights of any kind and description that Corpsense or\nCompany has or may have against the other as of the date of this Agreement including, but not limited to, any asserted and\nunasserted claims arising under any Federal, State and/or local law, including but not limited to any case law both Federal and\nState, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other Securities and\nExchange Commission regulations, any and all Delaware statutes and case law including but not limited to the Delaware\nCode, Title 8 of the Delaware Code and any other “blue sky law”, local ordinance, and/or other duty and/or other corporate\nrelated\nobligation as well as any claims arising from tort, �ortuous course of conduct, fraud, contract (including but not limited to\nany written, oral, or implied contract), obligations of “good faith,” public policy, statute, common law, equity, and all claims\nfor monetary and equitable relief, punitive and compensatory relief, and attorneys’ fees and costs.\n3. Non-Disparagement. Corpsense and Company each agree that except, for truthful statements in any proceeding to enforce\nthis Agreement or pursuant to a valid Subpoena or Court Order, neither will make or publish any statement (orally or in\nwriting) that becomes or reasonably could be expected to become publicly known, or instigate, assist or participate in the\nmaking or publication of any such statement, which would libel, slander or disparage (whether or not such disparagement\nlegally constitutes libel or slander) the other or, with respect to Company or Corpsense, any of their affiliates or any other\nentity or person within Company or Corpsense or their affiliates, any of their affairs or operations, or the reputations of any of\ntheir past or present officers, directors, agents, representatives and employees.\n4. Unauthorized Disclosure. Without the prior written consent of Caddystats, Inc. and Corpsense except to the extent required\npursuant to a valid Subpoena or Court Order from an appropriate government agency, in which event, Corpsense and\nCompany shall use reasonable efforts to consult with Caddystats, Inc. and Corpsense prior to responding to any such valid\nOrder or Subpoena, Corpsense and Company shall not disclose any information regarding this Agreement, agree to keep\nconfidential and not disclose to any third party the terms and conditions of this Agreement, the existence of this Agreement, or\nany of the negotiations and discussions that preceded its making, except as follows in which cases Corpsense and Company\nwill nevertheless use reasonable efforts to seek confidential treatment by any receiving party: (i) as is necessary to effectuate\nany term or provision of this Agreement, including any subsequent litigation to enforce this Agreement, except that Corpsense\nand Company shall take all reasonable steps to maintain the confidentiality of this information including filing documents\nunder seal and entry of appropriate protective orders; (ii) to Corpsense’s and Company’s accountants or lawyers; (iii) as\nrequired by law, and (iv) as required by any court order upon notice to the other party sufficiently in advance of such\ndisclosure to permit it to seek a protective order.\n5. No Admission of Liability. By entering into this Agreement, Corpsense and Company do not admit to any liability,\nwrongdoing, breach of any contract, commission of any tort or the violation of any statute or law alleged by the other to have\nbeen violated or otherwise.\n6. Entire Agreement and Severability. This Agreement constitutes the complete settlement of all issues and disputes existing\nbetween Corpsense and Company as of the date hereof and may not be modified except by a suitable writing signed by both\nCorpsense and Company. This Agreement has been entered into by Corpsense and Company voluntarily, knowingly, and upon\nadvice of counsel.\nIf any provision of this Agreement is held to be invalid, the remaining provisions shall remain in full force and effect.\n7. Injunctive Relief; Attorneys Fees. Each party hereto acknowledges that a violation of such party’s obligations under this\nAgreement would cause irreparable damage to the other parties hereto. Accordingly, each party agrees that each other parties\nhereto are entitled to injunctive relief from any court of competent jurisdiction for any actual or threatened violation of this\nAgreement in addition to any other remedies it may have.\n8. Execution. Corpsense and Company acknowledge that they have had reasonable time from the receipt of this document to\nreview it. Upon execution, Corpsense and Company or their attorney must promptly send this document by certified mail or\nfacsimile to the Company. A copy may be retained by Corpsense and Company.\n9. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of\nDelaware. An action for breach of this Agreement may be brought in any court of competent jurisdiction located in Delaware.\n10. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the heirs, successors and\nassigns of the parties hereto.\nTHE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK\nTHE UNDERSIGNED, intending to be legally bound, have executed this Agreement on this 2\nnd day of February, 2009.\nCORPSENSE CONSULTING, INC.\nBy: /s/ Marc Cremini\nName:\nMarc Cremini\nDate: 02/02/2009\nCADDYSTATS, INC.\nBy; /s/ Micheal P. Nugent\nName: MICHEAL P. NUGENT\nTitle: President\nDate: 02/02/2009	EX-10.3 16 exhibit10_3release.htm MUTUAL SETTLEMENT, RELEASE OF DEBT, COVENANT NOT TO SUE, WAIVER, AND NON-\nDISCLOSURE AGREEMENT BETWEEN CORPSENSE CONSULTING AND CADDYSTATS, INC.\nExhibit 10.3\nMUTUAL SETTLEMENT, RELEASE OF DEBT, COVENANT NOT\nTO SUE, WAIVER, AND NON-DISCLOSURE AGREEMENT (“Agreement”)\nWHEREAS, Corpsense Consulting., collectively and on behalf of all successors, heirs, executors, administrators, legal representatives, and assigns (hereinafter referred to collectively as “Corpsense”), and Caddystats, Inc., and their successors and legal representatives and (hereinafter referred to collectively as the “Company”), have reached an agreement with respect to all matters relating to the debts for services rendered to the Company, including but not limited bookkeeping services and any and all agreements, understandings or commitments Corpsense may have had with the Company up until even date herewith;\nNOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth herein, Corpsense and Company agree as follows:\n1. Full Satisfaction. Corpsense and Company, by entering into this Agreement, accept the benefits and covenants to be conferred hereunder in full and complete satisfaction of any and all asserted and unasserted debts and claims of any kind or description against Company and Corpsense as of the date of this Agreement, including, but not limited to, any asserted and unasserted claims arising under any Federal, State and/or local law, including but not limited to any case law both Federal and State, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other Securities and Exchange Commission regulations, any and all Delaware statutes and case law including but not limited to the Delaware Code, Title 8 of the Delaware Code and any other “blue sky law”, local ordinance, and/or other duty and/or other corporate related obligation as well as any claims arising from tort, €ortuous course of conduct, fraud, contract (including but not limited to any written, oral, or implied contract), obligations of “good faith,” public policy, statute, common law, equity, and all claims for monetary and equitable relief, punitive and compensatory relief, and attorneys’ fees and costs.\n2. Release. In consideration of the benefits, covenants and undertakings above, Corpsense and Company hereby release and discharge the other from any and all liability, and waive any and all rights of any kind and description that Corpsense or Company has or may have against the other as of the date of this Agreement including, but not limited to, any asserted and unasserted claims arising under any Federal, State and/or local law, including but not limited to any case law both Federal and State, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other Securities and Exchange Commission regulations, any and all Delaware statutes and case law including but not limited to the Delaware Code, Title 8 of the Delaware Code and any other “blue sky law”, local ordinance, and/or other duty and/or other corporate related\nobligation as well as any claims arising from tort, €ortuous course of conduct, fraud, contract (including but not limited to\nany written, oral, or implied contract), obligations of “good faith,” public policy, statute, common law, equity, and all claims\nfor monetary and equitable relief, punitive and compensatory relief, and attorneys’ fees and costs.\nNon-Disparagement. Corpsense and Company each agree that except, for truthful statements in any proceeding to enforce\nthis Agreement or pursuant to a valid Subpoena or Court Order, neither will make or publish any statement (orally or in\nwriting) that becomes or reasonably could be expected to become publicly known, or instigate, assist or participate in the\nmaking or publication of any such statement, which would libel, slander or disparage (whether or not such disparagement\nlegally constitutes libel or slander) the other or, with respect to Company or Corpsense, any of their affiliates or any other\nentity or person within Company or Corpsense or their affiliates, any of their affairs or operations, or the reputations of any of\ntheir past or present officers, directors, agents, representatives and employees.\nUnauthorized Disclosure. Without the prior written consent of Caddystats, Inc. and Corpsense except to the extent required\npursuant to a valid Subpoena or Court Order from an appropriate government agency, in which event, Corpsense and\nCompany shall use reasonable efforts to consult with Caddystats, Inc. and Corpsense prior to responding to any such valid\nOrder or Subpoena, Corpsense and Company shall not disclose any information regarding this Agreement, agree to keep\nconfidential and not disclose to any third party the terms and conditions of this Agreement, the existence of this Agreement, or\nany of the negotiations and discussions that preceded its making, except as follows in which cases Corpsense and Company\nwill nevertheless use reasonable efforts to seek confidential treatment by any receiving party: (i) as is necessary to effectuate\nany term or provision of this Agreement, including any subsequent litigation to enforce this Agreement, except that Corpsense\nand Company shall take all reasonable steps to maintain the confidentiality of this information including filing documents\nunder seal and entry of appropriate protective orders; (ii) to Corpsense’s and Company’s accountants or lawyers; (iii) as\nrequired by law, and (iv) as required by any court order upon notice to the other party sufficiently in advance of such\ndisclosure to permit it to seek a protective order.\nNo Admission of Liability. By entering into this Agreement, Corpsense and Company do not admit to any liability,\nwrongdoing, breach of any contract, commission of any tort or the violation of any statute or law alleged by the other to have\nbeen violated or otherwise.\nEntire Agreement and Severability. This Agreement constitutes the complete settlement of all issues and disputes existing\nbetween Corpsense and Company as of the date hereof and may not be modified except by a suitable writing signed by both\nCorpsense and Company. This Agreement has been entered into by Corpsense and Company voluntarily, knowingly, and upon\nadvice of counsel.\n10. If any provision of this Agreement is held to be invalid, the remaining provisions shall remain in full force and effect.\nInjunctive Relief; Attorneys Fees. Each party hereto acknowledges that a violation of such party’s obligations under this\nAgreement would cause irreparable damage to the other parties hereto. Accordingly, each party agrees that each other parties\nhereto are entitled to injunctive relief from any court of competent jurisdiction for any actual or threatened violation of this\nAgreement in addition to any other remedies it may have.\nExecution. Corpsense and Company acknowledge that they have had reasonable time from the receipt of this document to\nreview it. Upon execution, Corpsense and Company or their attorney must promptly send this document by certified mail or\nfacsimile to the Company. A copy may be retained by Corpsense and Company.\nGoverning Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of\nDelaware. An action for breach of this Agreement may be brought in any court of competent jurisdiction located in Delaware.\nSuccessors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the heirs, successors and\nassigns of the parties hereto.\nTHE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK\nTHE UNDERSIGNED, intending to be legally bound, have executed this Agreement on this ond day of February, 2009.\nCORPSENSE CONSULTING, INC.\nBy: /s/ Marc Cremini\nName: Marc Cremini\nDate: 02/02/2009\nCADDYSTATS, INC.\nBy; /s/ Micheal P. Nugent\nName: MICHEAL P. NUGENT\nTitle: President\nDate: 02/02/2009	EX-10.3 16 exhibit10_3release.htm MUTUAL SETTLEMENT, RELEASE OF DEBT, COVENANT NOT TO SUE, WAIVER, AND NON-\nDISCLOSURE AGREEMENT BETWEEN CORPSENSE CONSULTING AND CADDYSTATS, INC.\nExhibit 10.3\nMUTUAL SETTLEMENT, RELEASE OF DEBT, COVENANT NOT\nTO SUE, WAIVER, AND NON-DISCLOSURE AGREEMENT ("Agreement")\nWHEREAS, Corpsense Consulting., collectively and on behalf of all successors, heirs, executors, administrators, legal\nrepresentatives, and assigns (hereinafter referred to collectively as "Corpsense"), and Caddystats, Inc., and their successors and\nlegal representatives and (hereinafter referred to collectively as the "Company"), have reached an agreement with respect to all\nmatters relating to the debts for services rendered to the Company, including but not limited bookkeeping services and any and all\nagreements, understandings or commitments Corpsense may have had with the Company up until even date herewith;\nNOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth herein, Corpsense and Company\nagree as follows:\n1. Full Satisfaction. Corpsense and Company, by entering into this Agreement, accept the benefits and covenants to be\nconferred hereunder in full and complete satisfaction of any and all asserted and unasserted debts and claims of any kind or\ndescription against Company and Corpsense as of the date of this Agreement, including, but not limited to, any asserted and\nunasserted claims arising under any Federal, State and/or local law, including but not limited to any case law both Federal and\nState,\nthe\nSecurities\nAct of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other Securities\nand\nExchange Commission regulations, any and all Delaware statutes and case law including but not limited to the Delaware\nCode, Title 8 of the Delaware Code and any other "blue sky law", local ordinance, and/or other duty and/or other corporate\nrelated obligation as well as any claims arising from tort, ?ortuous course of conduct, fraud, contract (including but not\nlimited to any written, oral, or implied contract), obligations of "good faith," public policy, statute, common law, equity, and\nall claims for monetary and equitable relief, punitive and compensatory relief, and attorneys' fees and costs.\n2.\nRelease. In consideration of the benefits, covenants and undertakings above, Corpsense and Company hereby release and\ndischarge the other from any and all liability, and waive any and all rights of any kind and description that Corpsense or\nCompany has or may have against the other as of the date of this Agreement including, but not limited to, any asserted and\nunasserted claims arising under any Federal, State and/or local law, including but not limited to any case law both Federal and\nState, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other Securities and\nExchange Commission regulations, any and all Delaware statutes and case law including but not limited to the Delaware\nCode, Title 8 of the Delaware Code and any other "blue sky law", local ordinance, and/or other duty and/or other corporate\nrelated\nobligation as well as any claims arising from tort, ?ortuous course of conduct, fraud, contract (including but not limited to\nany written, oral, or implied contract), obligations of "good faith," public policy, statute, common law, equity, and all claims\nfor monetary and equitable relief, punitive and compensatory relief, and attorneys' fees and costs.\n3. Non-Disparagement. Corpsense and Company each agree that except, for truthful statements in any proceeding to enforce\nthis Agreement or pursuant to a valid Subpoena or Court Order, neither will make or publish any statement (orally or in\nwriting) that becomes or reasonably could be expected to become publicly known, or instigate, assist or participate in the\nmaking or publication of any such statement, which would libel, slander or disparage (whether or not such disparagement\nlegally constitutes libel or slander) the other or, with respect to Company or Corpsense, any of their affiliates or any other\nentity or person within Company or Corpsense or their affiliates, any of their affairs or operations, or the reputations of any of\ntheir past or present officers, directors, agents, representatives and employees.\n4. Unauthorized Disclosure. Without the prior written consent of Caddystats, Inc. and Corpsense except to the extent required\npursuant to a valid Subpoena or Court Order from an appropriate government agency, in which event, Corpsense and\nCompany shall use reasonable efforts to consult with Caddystats, Inc. and Corpsense prior to responding to any such valid\nOrder or Subpoena, Corpsense and Company shall not disclose any information regarding this Agreement, agree to keep\nconfidential and not disclose to any third party the terms and conditions of this Agreement, the existence of this Agreement, or\nany of the negotiations and discussions that preceded its making, except as follows in which cases Corpsense and Company\nwill nevertheless use reasonable efforts to seek confidential treatment by any receiving party: (i) as is necessary to effectuate\nany term or provision of this Agreement, including any subsequent litigation to enforce this Agreement, except that Corpsense\nand Company shall take all reasonable steps to maintain the confidentiality of this information including filing documents\nunder seal and entry of appropriate protective orders; (ii) to Corpsense's and Company's accountants or lawyers; (iii)\nas\nrequired by law, and (iv) as required by any court order upon notice to the other party sufficiently in advance of such\ndisclosure to permit it to seek a protective order.\n5. No Admission of Liability. By entering into this Agreement, Corpsense and Company do not admit to any liability,\nwrongdoing, breach of any contract, commission of any tort or the violation of any statute or law alleged by the other to have\nbeen violated or otherwise.\n6.\nEntire Agreement and Severability. This Agreement constitutes the complete settlement of all issues and disputes existing\nbetween Corpsense and Company as of the date hereof and may not be modified except by a suitable writing signed by both\nCorpsense and Company. This Agreement has been entered into by Corpsense and Company voluntarily, knowingly, and upon\nadvice of counsel.\nIf any provision of this Agreement is held to be invalid, the remaining provisions shall remain in full force and effect.\n7.\nInjunctive Relief; Attorneys Fees. Each party hereto acknowledges that a violation of such party's obligations under this\nAgreement would cause irreparable damage to the other parties hereto. Accordingly, each party agrees that each other parties\nhereto are entitled to injunctive relief from any court of competent jurisdiction for any actual or threatened violation of this\nAgreement in addition to any other remedies it may have.\n8. Execution. Corpsense and Company acknowledge that they have had reasonable time from the receipt of this document to\nreview it. Upon execution, Corpsense and Company or their attorney must promptly send this document by certified mail or\nfacsimile to the Company. A copy may be retained by Corpsense and Company.\n9. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of\nDelaware. An action for breach of this Agreement may be brought in any court of competent jurisdiction located in Delaware.\n10. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the heirs, successors and\nassigns of the parties hereto.\nTHE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK\nTHE UNDERSIGNED, intending to be legally bound, have executed this Agreement on this 2nd day of February, 2009.\nCORPSENSE CONSULTING, INC.\nBy:\n/s/ Marc Cremini\nName:\nMarc Cremini\nDate: 02/02/2009\nCADDYSTATS, INC.\nBy; /s/ Micheal P. Nugent\nName: MICHEAL P. NUGENT\nTitle: President\nDate: 02/02/2009	EX-10 .3 16 exhibit10_3release.htm MUTUAL SETTLEMENT, RELEASE OF DEBT, COVENANT NOT TO SUE, WAIVER, AND NON-\nDISCLOSURE AGREEMENT BETWEEN CORPSENSE CONSULTING AND CADDYSTATS, INC.\nExhibit 10.3\nMUTUAL SETTLEMENT, RELEASE OF DEBT, COVENANT NOT\nTO SUE, WAIVER, AND NON-DISCLOSURE AGREEMENT (“Agreement”)\nWHEREAS, Corpsense Consulting., collectively and on behalf of all successors, heirs, executors, administrators, legal\nrepresentatives, and assigns (hereinafter referred to collectively as “Corpsense”), and Caddystats, Inc., and their successors and\nlegal representatives and (hereinafter referred to collectively as the “Company”), have reached an agreement with respect to all\nmatters relating to the debts for services rendered to the Company, including but not limited bookkeeping services and any and all\nagreements, understandings or commitments Corpsense may have had with the Company up until even date herewith;\nNOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth herein, Corpsense and Company\nagree as follows:\n1. Full Satisfaction. Corpsense and Company, by entering into this Agreement, accept the benefits and covenants to be\nconferred hereunder in full and complete satisfaction of any and all asserted and unasserted debts and claims of any kind or\ndescription against Company and Corpsense as of the date of this Agreement, including, but not limited to, any asserted and\nunasserted claims arising under any Federal, State and/or local law, including but not limited to any case law both Federal and\nState, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other Securities and\nExchange Commission regulations, any and all Delaware statutes and case law including but not limited to the Delaware\nCode, Title 8 of the Delaware Code and any other “blue sky law”, local ordinance, and/or other duty and/or other corporate\nrelated obligation as well as any claims arising from tort, �ortuous course of conduct, fraud, contract (including but not\nlimited to any written, oral, or implied contract), obligations of “good faith,” public policy, statute, common law, equity, and\nall claims for monetary and equitable relief, punitive and compensatory relief, and attorneys’ fees and costs.\n2. Release. In consideration of the benefits, covenants and undertakings above, Corpsense and Company hereby release and\ndischarge the other from any and all liability, and waive any and all rights of any kind and description that Corpsense or\nCompany has or may have against the other as of the date of this Agreement including, but not limited to, any asserted and\nunasserted claims arising under any Federal, State and/or local law, including but not limited to any case law both Federal and\nState, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other Securities and\nExchange Commission regulations, any and all Delaware statutes and case law including but not limited to the Delaware\nCode, Title 8 of the Delaware Code and any other “blue sky law”, local ordinance, and/or other duty and/or other corporate\nrelated\nobligation as well as any claims arising from tort, �ortuous course of conduct, fraud, contract (including but not limited to\nany written, oral, or implied contract), obligations of “good faith,” public policy, statute, common law, equity, and all claims\nfor monetary and equitable relief, punitive and compensatory relief, and attorneys’ fees and costs.\n3. Non-Disparagement. Corpsense and Company each agree that except, for truthful statements in any proceeding to enforce\nthis Agreement or pursuant to a valid Subpoena or Court Order, neither will make or publish any statement (orally or in\nwriting) that becomes or reasonably could be expected to become publicly known, or instigate, assist or participate in the\nmaking or publication of any such statement, which would libel, slander or disparage (whether or not such disparagement\nlegally constitutes libel or slander) the other or, with respect to Company or Corpsense, any of their affiliates or any other\nentity or person within Company or Corpsense or their affiliates, any of their affairs or operations, or the reputations of any of\ntheir past or present officers, directors, agents, representatives and employees.\n4. Unauthorized Disclosure. Without the prior written consent of Caddystats, Inc. and Corpsense except to the extent required\npursuant to a valid Subpoena or Court Order from an appropriate government agency, in which event, Corpsense and\nCompany shall use reasonable efforts to consult with Caddystats, Inc. and Corpsense prior to responding to any such valid\nOrder or Subpoena, Corpsense and Company shall not disclose any information regarding this Agreement, agree to keep\nconfidential and not disclose to any third party the terms and conditions of this Agreement, the existence of this Agreement, or\nany of the negotiations and discussions that preceded its making, except as follows in which cases Corpsense and Company\nwill nevertheless use reasonable efforts to seek confidential treatment by any receiving party: (i) as is necessary to effectuate\nany term or provision of this Agreement, including any subsequent litigation to enforce this Agreement, except that Corpsense\nand Company shall take all reasonable steps to maintain the confidentiality of this information including filing documents\nunder seal and entry of appropriate protective orders; (ii) to Corpsense’s and Company’s accountants or lawyers; (iii) as\nrequired by law, and (iv) as required by any court order upon notice to the other party sufficiently in advance of such\ndisclosure to permit it to seek a protective order.\n5. No Admission of Liability. By entering into this Agreement, Corpsense and Company do not admit to any liability,\nwrongdoing, breach of any contract, commission of any tort or the violation of any statute or law alleged by the other to have\nbeen violated or otherwise.\n6. Entire Agreement and Severability. This Agreement constitutes the complete settlement of all issues and disputes existing\nbetween Corpsense and Company as of the date hereof and may not be modified except by a suitable writing signed by both\nCorpsense and Company. This Agreement has been entered into by Corpsense and Company voluntarily, knowingly, and upon\nadvice of counsel.\nIf any provision of this Agreement is held to be invalid, the remaining provisions shall remain in full force and effect.\n7. Injunctive Relief; Attorneys Fees. Each party hereto acknowledges that a violation of such party’s obligations under this\nAgreement would cause irreparable damage to the other parties hereto. Accordingly, each party agrees that each other parties\nhereto are entitled to injunctive relief from any court of competent jurisdiction for any actual or threatened violation of this\nAgreement in addition to any other remedies it may have.\n8. Execution. Corpsense and Company acknowledge that they have had reasonable time from the receipt of this document to\nreview it. Upon execution, Corpsense and Company or their attorney must promptly send this document by certified mail or\nfacsimile to the Company. A copy may be retained by Corpsense and Company.\n9. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of\nDelaware. An action for breach of this Agreement may be brought in any court of competent jurisdiction located in Delaware.\n10. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the heirs, successors and\nassigns of the parties hereto.\nTHE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK\nTHE UNDERSIGNED, intending to be legally bound, have executed this Agreement on this 2\nnd day of February, 2009.\nCORPSENSE CONSULTING, INC.\nBy: /s/ Marc Cremini\nName:\nMarc Cremini\nDate: 02/02/2009\nCADDYSTATS, INC.\nBy; /s/ Micheal P. Nugent\nName: MICHEAL P. NUGENT\nTitle: President\nDate: 02/02/2009
+495f7d16921a1c8531be0844db0828a4.pdf	effective_date jurisdiction party	MUTUAL CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT made this 1st day of February, 2011, by and between The Citizens Bank of Logan, an\nOhio banking corporation having its principal offices at 188 West Main Street, Logan, Ohio 43138 (the “Bank”), and John\nDemmler, an individual having an address at Logan, Ohio 43138 (Demmler). As used in this Agreement, “Parties” shall\nrefer to the Bank and Demmler collectively, and “Party” shall refer to the Bank and Demmler individually.\nWITNESSETH:\nWHEREAS, the Parties desire to enter into negotiations regarding the potential employment of Demmler by\nthe Bank (the “Negotiations”); and\nWHEREAS, in connection with the Negotiations, Demmler may receive certain non-public or confidential\ninformation regarding the Bank and its affiliates, including, without limitation, information relating to the management,\noperation, financial condition and/or regulation of the Bank and its affiliates (collectively, “Confidential Information”); and\nWHEREAS, as a condition to furnishing any Confidential Information to Demmler, the Bank is requiring that\nDemmler agree to keep such Confidential Information confidential; and\nWHEREAS, as a condition to entering into the Negotiations, Demmler is requiring that the Bank agree to\nkeep the Negotiations (including the existence thereof) confidential;\nNOW THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement,\nthe Parties agree as follows:\n1. Demmler agrees to maintain as confidential any and all Confidential Information furnished to him/her by\nthe Bank or its representatives, including, without limitation, its directors, officers, employees, agents, accountants,\nconsultants, counsel, advisors and regulators (collectively, “Representatives”), and shall not disclose such Confidential\nInformation to any other person; provided, however, that the obligation to maintain the confidentiality of such Confidential\nInformation shall not extend to information which (i) is or becomes generally available to the public other than as a result\nof a disclosure by Demmler (ii) is or becomes available to Demmler from a source other than the Bank or its\nRepresentatives, provided that such source is not, and was not, bound by a confidentiality agreement with the Bank or its\nRepresentatives, or (iii) was available to Demmler on a nonconfidential basis prior to disclosure.\n2. Notwithstanding any provision of this Agreement to the contrary, if Demmler is requested or required in\na judicial, administrative or governmental proceeding to disclose (by deposition, interrogatory, request for documents,\nsubpoena, civil investigative demand or similar process) any Confidential Information contemplated by this Agreement,\nDemmler agrees to provide the Bank with Prompt written notice of such request and all related proceedings so the Bank\nmay seek an appropriate protective order or take any other action. If, as a result of any such request or requirement,\nDemmler is compelled to disclose Confidential Information to any tribunal or else stand liable for contempt or other\ncensure or penalty, Demmler may disclose only that portion of the Confidential Information which he/she is advised by\nlegal counsel in writing is legally required to be disclosed, (ii) shall use his/her best efforts to obtain assurance that\nconfidential treatment will be accorded such Confidential Information, and (iii) shall not be liable for such disclosure if\nDemmler complies with the notice provision of this paragraph, unless such disclosure was caused by, or resulted from, a\nprevious disclosure by Demmler not permitted by this Agreement.\n3. In the event that the Negotiations do not result in the employment of Demmler by the Bank, upon the\nrequest of the Bank, Demmler shall promptly deliver to the Bank all Confidential Information in his/her possession or\ncontrol, without retaining any copy whatsoever. In the event such a request is made, Demmler shall deliver to the Bank a\ncertificate signed by him/her certifying that all such Confidential Information has either (i) been delivered to the Bank or\n(ii) been destroyed.\n4. Without the prior written consent of Demmler the Bank agrees that, until Demmler is employed by the\nBank, it will not, and will direct its Representatives not to, disclose to any person the fact that the Negotiations are taking\nplace or any of the terms, conditions or other facts with respect to the Negotiations.\n5.\nEach Party agrees that money damages would not be an adequate remedy for any breach of this\nAgreement and that each Party is entitled to specific performance and injunctive relief in the event of any breach of the\nprovisions of this Agreement and that such Party shall not oppose the granting of such relief. Such remedies shall not be\ndeemed to be the exclusive remedies for the breach off this Agreement, but shall be in addition to all other remedies\navailable at law or in equity.\n6. This Agreement shall inure to the benefit of each Party and shall be enforceable by each Party and its\nrespective successors and assigns. This Agreement and any portion or provision hereof may be modified or waived only\nby an express written modification or waiver signed by the Parties. A Party’s failure or delay to exercise any right, power,\nor privilege (collectively, “Rights”) under this Agreement shall not operate as a waiver of such Right. A Party’s single or\npartial exercise of any Right shall not preclude any further exercise of that Right or any other Right.\n7. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Ohio.\nThis Agreement may be executed in counterparts. Any judicial proceeding brought against a Party regarding any dispute\narising out of this Agreement or any matter related hereto may be brought in the courts of the State of Ohio. By execution\nand delivery of this Agreement, each Party accepts the exclusive jurisdiction of such courts and irrevocably agrees to be\nbound by any judgment rendered thereby in connection with this Agreement or any matter related hereto.\nIN WITNESS WHEREOF, the parties hereto have caused this Mutual Confidentiality Agreement to be\nexecuted on the day and year set forth in the first paragraph above.\n/s/ John E. Demmler\nTHE CITIZENS BANK OF LOGAN\nJohn Demmler\n/s/ Bryan K. Starner\nBy: Bryan K. Starner\nTitle: President	MUTUAL CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT made this 1_st day of February, 2011, by and between The Citizens Bank of Logan, an\nOhio banking corporation having its principal offices at 188 West Main Street, Logan, Ohio 43138 (the “Bank”), and J ohn\nDemmler, an individual having an address at Logan, Ohio 43138 (Demmler). As used in this Agreement, “Parties” shall\nreferto the Bank and Demmler collectively, and “Party” shall refer to the Bank and Demmler individually.\nWITNESSETH:\nWHEREAS, the Parties desire to enter into negotiations regarding the potential employment of Demmler by\nthe Bank (the “Negotiations”); and\nWHEREAS, in connection with the Negotiations, Demmler may receive certain non-public or confidential\ninformation regarding the Bank and its affiliates, including, without limitation, information relating to the management,\noperation, financial condition and/or regulation of the Bank and its affiliates (collectively, “Confidential Information”); and\nWHEREAS, as a condition to furnishing any Confidential Information to Demmler, the Bank is requiring that\nDemmler agree to keep such Confidential Information confidential; and\nWHEREAS, as a condition to entering into the Negotiations, Demmler is requiring that the Bank agree to\nkeep the Negotiations (including the existence thereof) confidential;\nNOW THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement,\nthe Parties agree as follows:\n1. Demmler agrees to maintain as confidential any and all Confidential Information furnished to him/her by\nthe Bank or its representatives, including, without limitation, its directors, officers, employees, agents, accountants,\nconsultants, counsel, advisors and regulators (collectively, “Representatives”), and shall not disclose such Confidential\nInformation to any other person; provided, however, that the obligation to maintain the confidentiality of such Confidential\nInformation shall not extend to information which (i) is or becomes generally available to the public other than as a result\nof a disclosure by Demmler (ii) is or becomes available to Demmler from a source other than the Bank or its\nRepresentatives, provided that such source is not, and was not, bound by a confidentiality agreement with the Bank or its\nRepresentatives, or (iii) was available to Demmler on a nonconfidential basis priorto disclosure.\n2. Notwithstanding any provision of this Agreement to the contrary, if Demmler is requested or required in\na judicial, administrative or governmental proceeding to disclose (by deposition, interrogatory, request for documents,\nsubpoena, civil investigative demand or similar process) any Confidential Information contemplated by this Agreement,\nDemmler agrees to provide the Bank with Prompt written notice of such request and all related proceedings so the Bank\nmay seek an appropriate protective order or take any other action. If, as a result of any such request or requirement,\nDemmler is compelled to disclose Confidential Information to any tribunal or else stand liable for contempt or other\ncensure or penalty, Demmler may disclose only that portion of the Confidential Information which he/she is advised by\nlegal counsel in writing is legally required to be disclosed, (ii) shall use his/her best efforts to obtain assurance that\nconfidential treatment will be accorded such Confidential Information, and (iii) shall not be liable for such disclosure if\nDemmler complies with the notice provision of this paragraph, unless such disclosure was caused by, or resulted from, a\nprevious disclosure by Demmler not permitted by this Agreement.\n3. In the event that the Negotiations do not result in the employment of Demmler by the Bank, upon the\nrequest of the Bank, Demmler shall promptly deliver to the Bank all Confidential Information in his/her possession or\ncontrol, without retaining any copy whatsoever. In the event such a request is made, Demmler shall deliver to the Bank a\ncertificate signed by him/her certifying that all such Confidential Information has either (i) been delivered to the Bank or\n(ii) been destroyed.\n4. Without the prior written consent of Demmler the Bank agrees that, until Demmler is employed by the\nBank, it will not, and will direct its Representatives not to, disclose to any person the fact that the Negotiations are taking\nplace or any of the terms, conditions or other facts with respect to the Negotiations.\n5. Each Party agrees that money damages would not be an adequate remedy for any breach of this\nAgreement and that each Party is entitled to specific performance and injunctive relief in the event of any breach of the\nprovisions of this Agreement and that such Party shall not oppose the granting of such relief. Such remedies shall not be\ndeemed to be the exclusive remedies for the breach off this Agreement, but shall be in addition to all other remedies\navailable at law or in equity.\n6. This Agreement shall inure to the benefit of each Party and shall be enforceable by each Party and its\nrespective successors and assigns. This Agreement and any portion or provision hereof may be modified or waived only\nby an express written modification or waiver signed by the Parties. A Party's failure or delay to exercise any right, power,\nor privilege (collectively, “Rights”) under this Agreement shall not operate as a waiver of such Right. A Party's single or\npartial exercise of any Right shall not preclude any further exercise of that Right or any other Right.\n7. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Ohio.\nThis Agreement may be executed in counterparts. Anyjudicial proceeding brought against a Party regarding any dispute\narising out of this Agreement or any matter related hereto may be brought in the courts of the State of Ohio. By execution\nand delivery of this Agreement, each Party accepts the exclusive jurisdiction of such courts and irrevocably agrees to be\nbound by any judgment rendered thereby in connection with this Agreement or any matter related hereto.\nIN WITNESS WHEREOF, the parties hereto have caused this Mutual Confidentiality Agreement to be\nexecuted on the day and year set forth in the first paragraph above.\n/s/J ohn E. Demmler THE CITIZENS BANK OF LOGAN\nlohn Demmler\n/s/ Bryan K. Starner\ny: ryan . arner\nTitle: President	MUTUAL CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT made this lst day of February, 2011, by and between The Citizens Bank of Logan, an\nOhio banking corporation having its principal offices at 188 West Main Street, Logan, Ohio 43138 (the "Bank"), and J ohn\nDemmler, an individua having an address at Logan, Ohio 43138 (Demmler). As used in this Agreement, "Parties" shall\nrefer to the Bank and Demmler collectively, and "Party" shall refer to the Bank and Demmler individually.\nWITNESSETH:\nWHEREAS, the Parties desire to enter into negotiations regarding the potentia employment of Demmler by\nthe Bank (the "Negotiations"); and\nWHEREAS, in connection with the Negotiations, Demmler may receive certain non-public or confidential\ninformation regarding the Bank and its affiliates, including, without limitation, information relating to the management,\noperation, financial condition and/or regulation of the Bank and its affiliates (collectively, "Confidential Information"); and\nWHEREAS, as a condition to furnishing any Confidential Information to Demmler, the Bank is requiring that\nDemmler agree to keep such Confidential Information confidential; and\nWHEREAS, as a condition to entering into the Negotiations, Demmler is requiring that the Bank agree to\nkeep the Negotiations (including the existence thereof) confidential;\nNOW THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement\nthe arties agree as follows:\n1.\nDemmler agrees to maintain as confidentia any and all Confidential Information furnished to him/her by\nthe Bank or its representatives, including, without limitation, its directors, officers, employees, agents, accountants,\nconsultants,\ncounsel,\nadvisors\nand\nregulators\n(collectively,\n"Representatives"),\nand\nshall\nnot\ndisclose\nsuch\nConfidential\nInformation to any other person; provided, however, that the obligation to maintain the confidentiality of such Confidential\nInformation shall not extend to information which (i) is or becomes generally available to the public other than as a result\nof a disclosure by Demmler (ii) is or becomes available to Demmler from a source other than the Bank or its\nRepresentatives provided that such source is not, and was not, bound by a confidentiality agreement with the Bank or its\nRepresentatives, or (iii) was available to Demmler on a nonconfidential basis prior to disclosure.\n2.\nNotwithstanding any provision of this Agreement to the contrary, if Demmler is requested or required in\na judicial, administrative or governmental proceeding to disclose (by deposition, interrogatory, request for documents,\nsubpoena,\ncivil\ninvestigative\ndemand\nor\nsimilar\nprocess)\nany\nConfidential\nInformation\ncontemplated\nby\nthis\nAgreement,\nDemmler agrees to provide the Bank with rompt written notice of such request and all related proceedings so the Bank\nmay seek an appropriate protective order or take any other action. If, as a result of any such request or requirement,\nDemmler is compelled to disclose Confidential Information to any tribunal or else stand liable for contempt or other\ncensure or penalty, Demmler may disclose only that portion of the Confidential Information which he/she is advised by\nlegal counsel in writing is legally required to be disclosed, (ii) shall use his/her best efforts to obtain assurance that\nconfidential treatment will be accorded such Confidential Information, and (iii) shall not be liable for such disclosure if\nDemmler complies with the notice provision of this paragraph, unless such disclosure was caused by, or resulted from, a\nprevious disclosure by Demmler not permitted by this Agreement\n3.\nIn the event that the Negotiations do not result in the employment of Demmler by the Bank, upon the\nrequest of the Bank, Demmler shall promptly deliver to the Bank all Confidential Information in his/her possession or\ncontrol, without retaining any copy whatsoever. In the event such a request is made, Demmler shall deliver to the Bank a\ncertificate signed by him/her certifying that all such Confidential Information has either (i) been delivered to the Bank or\n(ii) been destroyed.\n4.\nWithout the prior written consent of Demmler the Bank agrees that, until Demmler is employed by the\nBank, it will not, and wil direct its Representatives not to, disclose to any person the fact that the Negotiations are taking\nplace or any of the terms, conditions or other facts with respect to the Negotiations.\n5.\nEach Party agrees that money damages would not be an adequate remedy for any breach of this\nAgreement and that each Party is entitled to specific performance and injunctive relief in the event of any breach of the\nprovisions of this Agreement and that such Party shall not oppose the granting of such relief. Such remedies shall not be\ndeemed to be the exclusive remedies for the breach off this Agreement, but shall be in addition to all other remedies\navailable at law or in equity.\n6. This Agreement shall inure to the benefit of each Party and shall be enforceable by each Party and its\nrespective successors and assigns. This Agreement and any portion or provision hereof may be modified or waived only\nby an express written modification or waiver signed by the Parties. A Party's failure or delay to exercise any right, power,\nor privilege (collectively, "Rights") under this Agreement shall not operate as a waiver of such ight. A Party's single or\npartial exercise of any Right shall not preclude any further exercise of that R ight or any other Right.\n7. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Ohio.\nThis Agreement may be executed in counterparts. Any judicial proceeding brought against a Party regarding any dispute\narising out of this Agreement or any matter related hereto may be brought in the courts of the State of Ohio. By execution\nand delivery of this Agreement, each Party accepts the exclusive jurisdiction of such courts and irrevocably agrees to be\nbound by any judgment rendered thereby in connection with this Agreement or any matter related hereto.\nIN WITNESS WHEREOF, the parties hereto have caused this Mutual Confidentiality Agreement to be\nexecuted on the day and year set forth in the first paragraph above.\n/s/. ohn E. Demmler\nTHE CITIZENS BANK OF LOGAN\nohn Demmler\n/s/ Bryan K. Starner\nBy:\nBryan K. Starner\nTitle: President	MUTUAL CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT made this 1st day of February, 2011, by and between The Citizens Bank of Logan, an\nOhio banking corporation having its principal offices at 188 West Main Street, Logan, Ohio 43138 (the “Bank”), and John\nDemmler, an individual having an address at Logan, Ohio 43138 (Demmler). As used in this Agreement, “Parties” shall\nrefer to the Bank and Demmler collectively, and “Party” shall refer to the Bank and Demmler individually.\nWITNESSETH:\nWHEREAS, the Parties desire to enter into negotiations regarding the potential employment of Demmler by\nthe Bank (the “Negotiations”); and\nWHEREAS, in connection with the Negotiations, Demmler may receive certain non-public or confidential\ninformation regarding the Bank and its affiliates, including, without limitation, information relating to the management,\noperation, financial condition and/or regulation of the Bank and its affiliates (collectively, “Confidential Information”); and\nWHEREAS, as a condition to furnishing any Confidential Information to Demmler, the Bank is requiring that\nDemmler agree to keep such Confidential Information confidential; and\nWHEREAS, as a condition to entering into the Negotiations, Demmler is requiring that the Bank agree to\nkeep the Negotiations (including the existence thereof) confidential;\nNOW THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement,\nthe Parties agree as follows:\n1. Demmler agrees to maintain as confidential any and all Confidential Information furnished to him/her by\nthe Bank or its representatives, including, without limitation, its directors, officers, employees, agents, accountants,\nconsultants, counsel, advisors and regulators (collectively, “Representatives”), and shall not disclose such Confidential\nInformation to any other person; provided, however, that the obligation to maintain the confidentiality of such Confidential\nInformation shall not extend to information which (i) is or becomes generally available to the public other than as a result\nof a disclosure by Demmler (ii) is or becomes available to Demmler from a source other than the Bank or its\nRepresentatives, provided that such source is not, and was not, bound by a confidentiality agreement with the Bank or its\nRepresentatives, or (iii) was available to Demmler on a nonconfidential basis prior to disclosure.\n2. Notwithstanding any provision of this Agreement to the contrary, if Demmler is requested or required in\na judicial, administrative or governmental proceeding to disclose (by deposition, interrogatory, request for documents,\nsubpoena, civil investigative demand or similar process) any Confidential Information contemplated by this Agreement,\nDemmler agrees to provide the Bank with Prompt written notice of such request and all related proceedings so the Bank\nmay seek an appropriate protective order or take any other action. If, as a result of any such request or requirement,\nDemmler is compelled to disclose Confidential Information to any tribunal or else stand liable for contempt or other\ncensure or penalty, Demmler may disclose only that portion of the Confidential Information which he/she is advised by\nlegal counsel in writing is legally required to be disclosed, (ii) shall use his/her best efforts to obtain assurance that\nconfidential treatment will be accorded such Confidential Information, and (iii) shall not be liable for such disclosure if\nDemmler complies with the notice provision of this paragraph, unless such disclosure was caused by, or resulted from, a\nprevious disclosure by Demmler not permitted by this Agreement.\n3. In the event that the Negotiations do not result in the employment of Demmler by the Bank, upon the\nrequest of the Bank, Demmler shall promptly deliver to the Bank all Confidential Information in his/her possession or\ncontrol, without retaining any copy whatsoever. In the event such a request is made, Demmler shall deliver to the Bank a\ncertificate signed by him/her certifying that all such Confidential Information has either (i) been delivered to the Bank or\n(ii) been destroyed.\n4. Without the prior written consent of Demmler the Bank agrees that, until Demmler is employed by the\nBank, it will not, and will direct its Representatives not to, disclose to any person the fact that the Negotiations are taking\nplace or any of the terms, conditions or other facts with respect to the Negotiations.\n5.\nEach Party agrees that money damages would not be an adequate remedy for any breach of this\nAgreement and that each Party is entitled to specific performance and injunctive relief in the event of any breach of the\nprovisions of this Agreement and that such Party shall not oppose the granting of such relief. Such remedies shall not be\ndeemed to be the exclusive remedies for the breach off this Agreement, but shall be in addition to all other remedies\navailable at law or in equity.\n6. This Agreement shall inure to the benefit of each Party and shall be enforceable by each Party and its\nrespective successors and assigns. This Agreement and any portion or provision hereof may be modified or waived only\nby an express written modification or waiver signed by the Parties. A Party’s failure or delay to exercise any right, power,\nor privilege (collectively, “Rights”) under this Agreement shall not operate as a waiver of such Right. A Party’s single or\npartial exercise of any Right shall not preclude any further exercise of that Right or any other Right.\n7. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Ohio.\nThis Agreement may be executed in counterparts. Any judicial proceeding brought against a Party regarding any dispute\narising out of this Agreement or any matter related hereto may be brought in the courts of the State of Ohio. By execution\nand delivery of this Agreement, each Party accepts the exclusive jurisdiction of such courts and irrevocably agrees to be\nbound by any judgment rendered thereby in connection with this Agreement or any matter related hereto.\nIN WITNESS WHEREOF, the parties hereto have caused this Mutual Confidentiality Agreement to be\nexecuted on the day and year set forth in the first paragraph above.\n/s/ John E. Demmler\nTHE CITIZENS BANK OF LOGAN\nJohn Demmler\n/s/ Bryan K. Starner\nBy: Bryan K. Starner\nTitle: President
+4b61ebe0ae19176364a51c755d7941ea.pdf	effective_date jurisdiction party term	EX-10.1 3 dex101.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit 10.1\nLOGO\nCost Plus, Inc.\n200 4th Street\nOakland, CA 94607\nTel: (510) 893-7900\nwww.costplusworldmarket.com\nMr. Warren A. Stephens\nStephens Investments Holdings LLC\n111 Center Street\nLittle Rock, AR 72201\nStephens Investments Holdings LLC\n111 Center Street\nLittle Rock, AR 72201\nJanuary 7, 2009\nGentlemen:\nAs you know, Stephens Investments Holdings LLC (“SIH”) filed a second Amendment to Schedule 13D with the Securities and Exchange\nCommission on December 5, 2008, concerning the beneficial ownership by Warren A. Stephens and SIH (collectively, the “Receiving Party”) of\nshares of common stock, par value $0.01 per share (the “Common Stock”), of Cost Plus, Inc., a California corporation (the “Disclosing Party”). As\nyou also know, the Disclosing Party has entered into an Amended and Restated Preferred Shares Rights Agreement, dated as of June 24, 2008, by\nand between the Disclosing Party and Computershare Trust Company, N.A. (the “Rights Agreement”). In response to the Receiving Party’s request,\nthe Disclosing Party has agreed to and expects to deliver to the Receiving Party, following the execution and delivery of this letter agreement by the\nReceiving Party, certain information about its properties, employees, finances, businesses and operations that has previously been prepared, in the\nordinary course.\nIn consideration of the mutual promises and covenants herein contained, and other consideration, the receipt and adequacy of which is hereby\nacknowledged, the parties hereto agree as follows:\nSubject to the approval by the Disclosing Party’s Board of Directors (“Board of Directors”), as well as the terms and conditions of the Rights\nAgreement, the Disclosing Party agrees to exempt the Receiving Party from the definition of Acquiring Person (as such term is defined in\nSection 1(a) of the Rights Agreement) in the Rights Agreement such that the Receiving Party’s beneficial ownership of up to and including 19.9% of\nthe amount of the issued and outstanding Common Stock shall not constitute a Triggering Event (as such term is defined in Section 1(qq) of the\nRights Agreement) in the Rights Agreement.\nAll information (i) about the Disclosing Party and (ii) about any third party (which information was provided to the Disclosing Party subject to\nan applicable confidentiality obligation to such third party), furnished by the Disclosing Party or its Representatives (as defined below) to the\nReceiving Party, whether furnished before or after the date hereof, and regardless of the manner in which it is furnished, is referred to in this letter\nagreement as “Proprietary Information.” Proprietary Information shall not include, however, information which (i) is or becomes generally available\nto the public other than as a result of a disclosure by the Receiving Party in violation of this letter agreement; (ii) was available to the Receiving\nParty on a nonconfidential basis prior to its disclosure by the Disclosing Party or its Representatives; (iii) becomes available to the Receiving Party\non a nonconfidential basis from a person other than the Disclosing Party or its Representatives who is, to the Receiving Party’s knowledge, not\notherwise bound by a confidentiality agreement with the Disclosing Party or any or its Representatives, or is otherwise not under an obligation to the\nDisclosing Party or any of its Representatives not to transmit the information to the Receiving Party; or (iv) was independently developed by the\nReceiving Party without reference to or use of the Proprietary Information. For purposes of this letter agreement, (i) “Representative” shall mean, as\nto any person, its directors, officers, employees, agents and advisors (including, without limitation, financial advisors, attorneys and accountants);\nand (ii) “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by the Disclosing Party, the Receiving Party (i) except\nas required by law, shall keep all Proprietary Information confidential and shall not disclose or reveal any Proprietary Information to any person\n(other than to any Representative of any Affiliate, provided that such Representative shall keep confidential all Proprietary Information that is so\ndisclosed or revealed to him or her in accordance with the Receiving Party’s confidentiality obligations hereunder with respect to such Proprietary\nInformation); (ii) shall not use Proprietary Information for any purpose other than in connection with its evaluation of the Disclosing Party; and\n(iii) except as required by law, shall not disclose to any person the fact that Proprietary Information has been made available to the Receiving Party.\nThe Receiving Party and the Affiliates shall be responsible for any breach of the terms of this letter agreement by the Receiving Party or any\nRepresentative of any Affiliate.\nIn the event that the Receiving Party or any Affiliate is requested pursuant to, or required by, applicable law or regulation (including, without\nlimitation, any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which any of the\nReceiving Party’s securities are listed or quoted) or by legal process to disclose any Proprietary Information, the Receiving Party shall provide the\nDisclosing Party with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order\nor other remedy, (ii) to consult with the Receiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such\nrequest or legal process or (iii) to waive compliance, in whole or in part, with the terms of this letter agreement. In the event that such protective\norder or other remedy is not timely sought or obtained, or the Disclosing Party waives compliance, in whole or in part, with the terms of this letter\nagreement, the Receiving Party shall use commercially reasonable efforts to disclose only\nthat portion of the Proprietary Information which is legally required to be disclosed and to ensure that all Proprietary Information that is so disclosed\nwill be accorded confidential treatment. In the event that the Receiving Party shall have complied, in all material respects, with the provisions of this\nparagraph, such disclosure may be made by the Receiving Party without any liability hereunder.\nFurther, the Receiving Party agrees that during any time period that the Receiving Party beneficially owns, directly or indirectly, for purposes\nof Section 13(d) of the Exchange Act and Rule 13d-3 thereunder (or any comparable or successor law or regulation) in excess of 14.9% of the\namount of the issued and outstanding Common Stock, neither the Receiving Party nor any other person affiliated with the Receiving Party shall:\n(a) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of\nthe Securities and Exchange Commission (“SEC”)), or seek to advise or influence any person or entity with respect to the voting of any voting\nsecurities of the Disclosing Party;\n(b) nominate or seek to nominate, directly or indirectly, any person to the Board of Directors;\n(c) otherwise act or seek to control or influence the management, Board of Directors or policies of the Disclosing Party;\n(d) take any action that could reasonably be expected to require the Disclosing Party to make a public announcement regarding the\npossibility of any of the events described in clauses (a) through (c) above; or\n(e) request the Disclosing Party or any of its representatives, directly or indirectly, to amend or waive any provision of this paragraph.\nThe Receiving Party also agrees that during any time period that the Receiving Party beneficially owns, directly or indirectly, for purposes of\nSection 13(d) of the Exchange Act and Rule 13d-3 thereunder (or any comparable or successor law or regulation) in excess of 14.9% of the amount\nof the issued and outstanding Common Stock (the Common Stock owned by the Receiving Party above 14.9%, the “Excess Shares”), the Receiving\nParty and any other person affiliated with the Receiving Party shall vote any and all Excess Shares in the same proportion as the votes cast by all\nother voting shareholders of the Disclosing Party.\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand\nand agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the\nsharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege. All Proprietary Information provided by the\nDisclosing Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain\nentitled to such protection under these privileges, this letter agreement, and under the joint defense doctrine. Nothing in this letter agreement\nobligates the Disclosing Party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\nIn the event that the Disclosing Party, in its sole discretion, requests, the Receiving Party shall, upon the Disclosing Party’s written request,\npromptly deliver to the Disclosing Party all Proprietary Information, and, at the Receiving Party’s election, return or destroy (provided that any such\ndestruction shall be certified by the Receiving Party) all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in\nhard-copy form or on intangible media, such as electronic mail or computer files) (collectively, “Notes”) in the Receiving Party’s possession or in the\npossession of any Representative of the Receiving Party or any Affiliate. Upon the return or the destruction of the Proprietary Information, the\nReceiving Party, if the Receiving Party so desires, may retain in the files of the Receiving Party’s general counsel, for archival purposes only, one\ncopy of all materials returned or destroyed as a record of the materials disclosed. Notwithstanding the foregoing, the Receiving Party and its\nRepresentatives (i) may retain copies of the Proprietary Information and/or Notes to the extent that such retention is required to demonstrate\ncompliance with applicable law, rule, regulation or professional standards, or to comply with a bona fide document retention policy, provided,\nhowever, that any such information so retained shall be held in compliance with the terms of this letter agreement and (ii) shall, to the extent that\n(i) above is inapplicable to Proprietary Information and/or Notes that are electronically stored, destroy such electronically stored Proprietary\nInformation and/or Notes only to the extent that it is reasonably practical to do so.\nThe Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors, employees,\nagents or controlling persons of such Representatives makes any express or implied representation or warranty as to the Proprietary Information.\nThe Receiving Party is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any\nperson who has received material, non-public information from the issuer of such securities and on the communication of such information to any\nother person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\nNotwithstanding the foregoing, the Disclosing Party acknowledges that certain of the Receiving Party’s Representatives trade securities and nothing\nin this letter agreement shall restrict the ability of such Representatives to trade securities, other than applicable securities laws and, with respect\nto those of the Receiving Party’s Representatives who are also the Receiving Party’s affiliates who the Receiving Party has made aware of this letter\nagreement or who have otherwise received Proprietary Information, the standstill provision as described above. The Disclosing Party acknowledges\nthat the Receiving Party is affiliated with a registered securities broker-dealer and that registered representatives of the Receiving Party’s affiliated\nbroker-dealer who have not been informed of, or provided with, the Proprietary Information or of any material non-public information of the\nDisclosing Party may trade in the securities of the Disclosing Party for their own accounts or the accounts of their customers in the ordinary course\nof business.\nWithout prejudice to the rights and remedies otherwise available to either party hereto, the Disclosing Party shall be entitled to equitable relief\nby way of injunction or otherwise if the Receiving Party or any of the Affiliates or any other affiliates of the Receiving Party breach or threaten to\nbreach any of the provisions of this letter agreement.\nIt is further understood and agreed that no failure or delay by any party hereto in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder.\nThis letter agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its\nprinciples or rules regarding conflicts of laws, other than such principles directing application of California law. Each party hereby consents to the\ninstitution and resolution of any action or proceeding of any kind or nature with respect to or arising out of this agreement brought by any party\nhereto in the federal or state courts located within the State of California.\nThis letter agreement contains the entire agreement between the parties hereto concerning confidentiality of the Proprietary Information, and\nno modification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon any party hereto, unless approved in\nwriting by each such party.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter agreement\nenclosed herewith.\nCOST PLUS, INC.\nBy: /s/ Barry J. Feld\nBarry J. Feld, Chief Executive Officer\nACCEPTED AND AGREED as of the date first written above:\nWARREN A. STEPHENS, on behalf of himself and as President and owner of Stephens Investments Holdings LLC\nBy: /s/ Warren A. Stephens\nWarren A. Stephens, President	EX-10.1 3 dex101.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit 10.1\n».LOGO\nCost Plus, Inc.\n200 4% Street\nOakland, CA 94607\nTel: (510) 893-7900\nwww.costplusworldmarket.com\nMr. Warren A. Stephens\nStephens Investments Holdings LLC\n111 Center Street\nLittle Rock, AR 72201\nStephens Investments Holdings LLC\n111 Center Street\nLittle Rock, AR 72201\nJanuary 7, 2009\nGentlemen:\nAs you know, Stephens Investments Holdings LLC (“SIH”) filed a second Amendment to Schedule 13D with the Securities and Exchange\nCommission on December 5, 2008, concerning the beneficial ownership by Warren A. Stephens and SIH (collectively, the “Receiving Party”) of\nshares of common stock, par value $0.01 per share (the “Common Stock”), of Cost Plus, Inc., a California corporation (the “Disclosing Party”). As\nyou also know, the Disclosing Party has entered into an Amended and Restated Preferred Shares Rights Agreement, dated as of June 24, 2008, by\nand between the Disclosing Party and Computershare Trust Company, N.A. (the “Rights Agreement”). In response to the Receiving Party’s request,\nthe Disclosing Party has agreed to and expects to deliver to the Receiving Party, following the execution and delivery of this letter agreement by the\nReceiving Party, certain information about its properties, employees, finances, businesses and operations that has previously been prepared, in the\nordinary course.\nIn consideration of the mutual promises and covenants herein contained, and other consideration, the receipt and adequacy of which is hereby\nacknowledged, the parties hereto agree as follows:\nSubject to the approval by the Disclosing Party’s Board of Directors (“Board of Directors”), as well as the terms and conditions of the Rights\nAgreement, the Disclosing Party agrees to exempt the Receiving Party from the definition of Acquiring Person (as such term is defined in\nSection 1(a) of the Rights Agreement) in the Rights Agreement such that the Receiving Party’s beneficial ownership of up to and including 19.9% of\nthe amount of the issued and outstanding Common Stock shall not constitute a Triggering Event (as such term is defined in Section 1(qq) of the\nRights Agreement) in the Rights Agreement.\nAll information (i) about the Disclosing Party and (ii) about any third party (which information was provided to the Disclosing Party subject to\nan applicable confidentiality obligation to such third party), furnished by the Disclosing Party or its Representatives (as defined below) to the\nReceiving Party, whether furnished before or after the date hereof, and regardless of the manner in which it is furnished, is referred to in this letter\nagreement as “Proprietary Information.” Proprietary Information shall not include, however, information which (i) is or becomes generally available\nto the public other than as a result of a disclosure by the Receiving Party in violation of this letter agreement; (ii) was available to the Receiving\nParty on a nonconfidential basis prior to its disclosure by the Disclosing Party or its Representatives; (iii) becomes available to the Receiving Party\non a nonconfidential basis from a person other than the Disclosing Party or its Representatives who is, to the Receiving Party’s knowledge, not\notherwise bound by a confidentiality agreement with the Disclosing Party or any or its Representatives, or is otherwise not under an obligation to the\nDisclosing Party or any of its Representatives not to transmit the information to the Receiving Party; or (iv) was independently developed by the\nReceiving Party without reference to or use of the Proprietary Information. For purposes of this letter agreement, (i) “Representative” shall mean, as\nto any person, its directors, officers, employees, agents and advisors (including, without limitation, financial advisors, attorneys and accountants);\nand (ii) “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by the Disclosing Party, the Receiving Party (i) except\nas required by law, shall keep all Proprietary Information confidential and shall not disclose or reveal any Proprietary Information to any person\n(other than to any Representative of any Affiliate, provided that such Representative shall keep confidential all Proprietary Information that is so\ndisclosed or revealed to him or her in accordance with the Receiving Party’s confidentiality obligations hereunder with respect to such Proprietary\nInformation); (ii) shall not use Proprietary Information for any purpose other than in connection with its evaluation of the Disclosing Party; and\n(iii) except as required by law, shall not disclose to any person the fact that Proprietary Information has been made available to the Receiving Party.\nThe Receiving Party and the Affiliates shall be responsible for any breach of the terms of this letter agreement by the Receiving Party or any\nRepresentative of any Affiliate.\nIn the event that the Receiving Party or any Affiliate is requested pursuant to, or required by, applicable law or regulation (including, without\nlimitation, any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which any of the\nReceiving Party’s securities are listed or quoted) or by legal process to disclose any Proprietary Information, the Receiving Party shall provide the\nDisclosing Party with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order\nor other remedy, (ii) to consult with the Receiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such\nrequest or legal process or (iii) to waive compliance, in whole or in part, with the terms of this letter agreement. In the event that such protective\norder or other remedy is not timely sought or obtained, or the Disclosing Party waives compliance, in whole or in part, with the terms of this letter\nagreement, the Receiving Party shall use commercially reasonable efforts to disclose only\nthat portion of the Proprietary Information which is legally required to be disclosed and to ensure that all Proprietary Information that is so disclosed\nwill be accorded confidential treatment. In the event that the Receiving Party shall have complied, in all material respects, with the provisions of this\nparagraph, such disclosure may be made by the Receiving Party without any liability hereunder.\nFurther, the Receiving Party agrees that during any time period that the Receiving Party beneficially owns, directly or indirectly, for purposes\nof Section 13(d) of the Exchange Act and Rule 13d-3 thereunder (or any comparable or successor law or regulation) in excess of 14.9% of the\namount of the issued and outstanding Common Stock, neither the Receiving Party nor any other person affiliated with the Receiving Party shall:\n(a) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of\nthe Securities and Exchange Commission (“SEC”)), or seek to advise or influence any person or entity with respect to the voting of any voting\nsecurities of the Disclosing Party;\n(b) nominate or seek to nominate, directly or indirectly, any person to the Board of Directors;\n(c) otherwise act or seek to control or influence the management, Board of Directors or policies of the Disclosing Party;\n(d) take any action that could reasonably be expected to require the Disclosing Party to make a public announcement regarding the\npossibility of any of the events described in clauses (a) through (c) above; or\n(e) request the Disclosing Party or any of its representatives, directly or indirectly, to amend or waive any provision of this paragraph.\nThe Receiving Party also agrees that during any time period that the Receiving Party beneficially owns, directly or indirectly, for purposes of\nSection 13(d) of the Exchange Act and Rule 13d-3 thereunder (or any comparable or successor law or regulation) in excess of 14.9% of the amount\nof the issued and outstanding Common Stock (the Common Stock owned by the Receiving Party above 14.9%, the “Excess Shares”), the Receiving\nParty and any other person affiliated with the Receiving Party shall vote any and all Excess Shares in the same proportion as the votes cast by all\nother voting shareholders of the Disclosing Party.\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand\nand agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the\nsharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege. All Proprietary Information provided by the\nDisclosing Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain\nentitled to such protection under these privileges, this letter agreement, and under the joint defense doctrine. Nothing in this letter agreement\nobligates the Disclosing Party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\nIn the event that the Disclosing Party, in its sole discretion, requests, the Receiving Party shall, upon the Disclosing Party’s written request,\npromptly deliver to the Disclosing Party all Proprietary Information, and, at the Receiving Party’s election, return or destroy (provided that any such\ndestruction shall be certified by the Receiving Party) all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in\nhard-copy form or on intangible media, such as electronic mail or computer files) (collectively, “Notes”) in the Receiving Party’s possession or in the\npossession of any Representative of the Receiving Party or any Affiliate. Upon the return or the destruction of the Proprietary Information, the\nReceiving Party, if the Receiving Party so desires, may retain in the files of the Receiving Party’s general counsel, for archival purposes only, one\ncopy of all materials returned or destroyed as a record of the materials disclosed. Notwithstanding the foregoing, the Receiving Party and its\nRepresentatives (i) may retain copies of the Proprietary Information and/or Notes to the extent that such retention is required to demonstrate\ncompliance with applicable law, rule, regulation or professional standards, or to comply with a bona fide document retention policy, provided,\nhowever, that any such information so retained shall be held in compliance with the terms of this letter agreement and (ii) shall, to the extent that\n(i) above is inapplicable to Proprietary Information and/or Notes that are electronically stored, destroy such electronically stored Proprietary\nInformation and/or Notes only to the extent that it is reasonably practical to do so.\nThe Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors, employees,\nagents or controlling persons of such Representatives makes any express or implied representation or warranty as to the Proprietary Information.\nThe Receiving Party is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any\nperson who has received material, non-public information from the issuer of such securities and on the communication of such information to any\nother person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\nNotwithstanding the foregoing, the Disclosing Party acknowledges that certain of the Receiving Party’s Representatives trade securities and nothing\nin this letter agreement shall restrict the ability of such Representatives to trade securities, other than applicable securities laws and, with respect\nto those of the Receiving Party’s Representatives who are also the Receiving Party’s affiliates who the Receiving Party has made aware of this letter\nagreement or who have otherwise received Proprietary Information, the standstill provision as described above. The Disclosing Party acknowledges\nthat the Receiving Party is affiliated with a registered securities broker-dealer and that registered representatives of the Receiving Party’s affiliated\nbroker-dealer who have not been informed of, or provided with, the Proprietary Information or of any material non-public information of the\nDisclosing Party may trade in the securities of the Disclosing Party for their own accounts or the accounts of their customers in the ordinary course\nof business.\nWithout prejudice to the rights and remedies otherwise available to either party hereto, the Disclosing Party shall be entitled to equitable relief\nby way of injunction or otherwise if the Receiving Party or any of the Affiliates or any other affiliates of the Receiving Party breach or threaten to\nbreach any of the provisions of this letter agreement.\nIt is further understood and agreed that no failure or delay by any party hereto in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder.\nThis letter agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its\nprinciples or rules regarding conflicts of laws, other than such principles directing application of California law. Each party hereby consents to the\ninstitution and resolution of any action or proceeding of any kind or nature with respect to or arising out of this agreement brought by any party\nhereto in the federal or state courts located within the State of California.\nThis letter agreement contains the entire agreement between the parties hereto concerning confidentiality of the Proprietary Information, and\nno modification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon any party hereto, unless approved in\nwriting by each such party.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter agreement\nenclosed herewith.\nCOST PLUS, INC.\nBy: /s/ Barry J. Feld\nBarry J. Feld, Chief Executive Officer\nACCEPTED AND AGREED as of the date first written above:\nWARREN A. STEPHENS, on behalf of himself and as President and owner of Stephens Investments Holdings LLC\nBy: /s/ Warren A. Stephens\nWarren A. Stephens, President	EX-10.1 3 dex101.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit 10.1\nLogo\nCost Plus, Inc.\n200 4th Street\nOakland, CA 94607\nTel: (510) 893-7900\nwww.costplusworldmarket.com\nMr. Warren A. Stephens\nStephens Investments Holdings LLC\n111 Center Street\nLittle Rock, AR 72201\nStephens Investments Holdings LLC\n111 Center Street\nLittle Rock, AR 72201\nJanuary 7, 2009\nGentlemen:\nAs you know, Stephens Investments Holdings LLC ("SIH") filed a second Amendment to Schedule 13D with the Securities and Exchange\nCommission on December 5, 2008, concerning the beneficial ownership by Warren A. Stephens and SIH (collectively, the "Receiving Party") of\nshares of common stock, par value $0.01 per share (the "Common Stock"), of Cost Plus, Inc., a California corporation (the "Disclosing Party"). As\nyou also know, the Disclosing Party has entered into an Amended and Restated Preferred Shares Rights Agreement, dated as of June 24, 2008, by\nand between the Disclosing Party and Computershare Trust Company, N.A. (the "Rights Agreement"). In response to the Receiving Party's request,\nthe Disclosing Party has agreed to and expects to deliver to the Receiving Party, following the execution and delivery of this letter agreement by the\nReceiving Party, certain information about its properties, employees, finances, businesses and operations that has previously been prepared, in the\nordinary course.\nIn consideration of the mutual promises and covenants herein contained, and other consideration, the receipt and adequacy of which is hereby\nacknowledged, the parties hereto agree as follows:\nSubject to the approval by the Disclosing Party's Board of Directors ("Board of Directors"), as well as the terms and conditions of the Rights\nAgreement, the Disclosing Party agrees to exempt the Receiving Party from the definition of Acquiring Person (as such term is defined in\nSection 1(a) of the Rights Agreement) in the Rights Agreement such that the Receiving Party's beneficial ownership of up to and including 19.9% of\nthe amount of the issued and outstanding Common Stock shall not constitute a Triggering Event (as such term is defined in Section 1(qq) of the\nRights Agreement) in the Rights Agreement.\nAll information (i) about the Disclosing Party and (ii) about any third party (which information was provided to the Disclosing Party subject\nto\nan applicable confidentiality obligation to such third party), furnished by the Disclosing Party or its Representatives (as defined below) to the\nReceiving Party, whether furnished before or after the date hereof, and regardless of the manner in which it is furnished, is referred to in this\nletter\nagreement as "Proprietary Information." Proprietary Information shall not include, however, information which (i) is or becomes generally available\nto the public other than as a result of a disclosure by the Receiving Party in violation of this letter agreement; (ii) was available to the Receiving\nParty on a nonconfidential basis prior to its disclosure by the Disclosing Party or its Representatives; (iii) becomes available to the Receiving Party\non a nonconfidential basis from a person other than the Disclosing Party or its Representatives who is, to the Receiving Party's knowledge, not\notherwise bound by a confidentiality agreement with the Disclosing Party or any or its Representatives, or is otherwise not under an obligation to the\nDisclosing Party or any of its Representatives not to transmit the information to the Receiving Party; or (iv) was independently developed by the\nReceiving Party without reference to or use of the Proprietary Information. For purposes of this letter agreement, (i) "Representative" shall mean, as\nto any person, its directors, officers, employees, agents and advisors (including, without limitation, financial advisors, attorneys and accountants);\nand (ii) "person" shall be broadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by the Disclosing Party, the Receiving Party (i) except\nas required by law, shall keep all Proprietary Information confidential and shall not disclose or reveal any Proprietary Information to any person\n(other than to any Representative of any Affiliate, provided that such Representative shall keep confidential all Proprietary Information that is so\ndisclosed or revealed to him or her in accordance with the Receiving Party's confidentiality obligations hereunder with respect to such Proprietary\nInformation); (ii) shall not use Proprietary Information for any purpose other than in connection with its evaluation of the Disclosing Party; and\n(iii) except as required by law, shall not disclose to any person the fact that Proprietary Information has been made available to the Receiving Party.\nThe Receiving Party and the Affiliates shall be responsible for any breach of the terms of this letter agreement by the Receiving Party or any\nRepresentative of any Affiliate.\nIn the event that the Receiving Party or any Affiliate is requested pursuant to, or required by, applicable law or regulation (including, without\nlimitation, any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which any of the\nReceiving Party's securities are listed or quoted) or by legal process to disclose any Proprietary Information, the Receiving Party shall provide the\nDisclosing Party with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order\nor other remedy, (ii) to consult with the Receiving Party with respect to the Disclosing Party's taking steps to resist or narrow the scope of such\nrequest or legal process or (iii) to waive compliance, in whole or in part, with the terms of this letter agreement. In the event that such protective\norder or other remedy is not timely sought or obtained, or the Disclosing Party waives compliance, in whole or in part, with the terms of this letter\nagreement, the Receiving Party shall use commercially reasonable efforts to disclose only\nthat portion of the Proprietary Information which is legally required to be disclosed and to ensure that all Proprietary Information that is so disclosed\nwill be accorded confidential treatment. In the event that the Receiving Party shall have complied, in all material respects, with the provisions of this\nparagraph, such disclosure may be made by the Receiving Party without any liability hereunder.\nFurther, the Receiving Party agrees that during any time period that the Receiving Party beneficially owns, directly or indirectly, for purposes\nof Section 13(d) of the Exchange Act and Rule 13d-3 thereunder (or any comparable or successor law or regulation) in excess of 14.9% of the\namount of the issued and outstanding Common Stock, neither the Receiving Party nor any other person affiliated with the Receiving Party shall:\n(a) make, or in any way participate, directly or indirectly, in any "solicitation" of "proxies" to vote (as such terms are used in the\nrules\nof\nthe\nSecurities and Exchange Commission ("SEC")), or seek to advise or influence any person or entity with respect to the voting of any voting\nsecurities of the Disclosing Party;\n(b) nominate or seek to nominate, directly or indirectly, any person to the Board of Directors;\n(c) otherwise act or seek to control or influence the management, Board of Directors or policies of the Disclosing Party;\n(d) take any action that could reasonably be expected to require the Disclosing Party to make a public announcement regarding the\npossibility of any of the events described in clauses (a) through (c) above; or\n(e) request the Disclosing Party or any of its representatives, directly or indirectly, to amend or waive any provision of this paragraph.\nThe Receiving Party also agrees that during any time period that the Receiving Party beneficially owns, directly or indirectly, for purposes of\nSection 13(d) of the Exchange Act and Rule 13d-3 thereunder (or any comparable or successor law or regulation) in excess of 14.9% of the amount\nof the issued and outstanding Common Stock (the Common Stock owned by the Receiving Party above 14.9%, the "Excess Shares"), the Receiving\nParty and any other person affiliated with the Receiving Party shall vote any and all Excess Shares in the same proportion as the votes cast by all\nother voting shareholders of the Disclosing Party.\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand\nand agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that\nthe\nsharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege. All Proprietary Information provided by the\nDisclosing Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain\nentitled to such protection under these privileges, this letter agreement, and under the joint defense doctrine. Nothing in this letter agreement\nobligates the Disclosing Party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\nIn the event that the Disclosing Party, in its sole discretion, requests, the Receiving Party shall, upon the Disclosing Party's written request,\npromptly deliver to the Disclosing Party all Proprietary Information, and, at the Receiving Party's election, return or destroy (provided that any such\ndestruction shall be certified by the Receiving Party) all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in\nhard-copy form or on intangible media, such as electronic mail or computer files) (collectively, "Notes") in the Receiving Party's possession or in the\npossession of any Representative of the Receiving Party or any Affiliate. Upon the return or the destruction of the Proprietary Information, the\nReceiving Party, if the Receiving Party so desires, may retain in the files of the Receiving Party's general counsel, for archival purposes only, one\ncopy of all materials returned or destroyed as a record of the materials disclosed. Notwithstanding the foregoing, the Receiving Party and its\nRepresentatives (i) may retain copies of the Proprietary Information and/or Notes to the extent that such retention is required to demonstrate\ncompliance with applicable law, rule, regulation or professional standards, or to comply with a bona fide document retention policy, provided,\nhowever, that any such information so retained shall be held in compliance with the terms of this letter agreement and (ii) shall, to the extent\nthat\n(i) above is inapplicable to Proprietary Information and/or Notes that are electronically stored, destroy such electronically stored Proprietary\nInformation and/or Notes only to the extent that it is reasonably practical to do so.\nThe Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors, employees,\nagents or controlling persons of such Representatives makes any express or implied representation or warranty as to the Proprietary Information.\nThe Receiving Party is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any\nperson who has received material, non-public information from the issuer of such securities and on the communication of such information\nto\nany\nother person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\nNotwithstanding the foregoing, the Disclosing Party acknowledges that certain of the Receiving Party's Representatives trade securities and nothing\nin this letter agreement shall restrict the ability of such Representatives to trade securities, other than applicable securities laws and, with respect\nto those of the Receiving Party's Representatives who are also the Receiving Party's affiliates who the Receiving Party has made aware of this letter\nagreement or who have otherwise received Proprietary Information, the standstill provision as described above. The Disclosing Party acknowledges\nthat the Receiving Party is affiliated with a registered securities broker-dealer and that registered representatives of the Receiving Party's affiliated\nbroker-dealer who have not been informed of, or provided with, the Proprietary Information or of any material non-public information of the\nDisclosing Party may trade in the securities of the Disclosing Party for their own accounts or the accounts of their customers in the ordinary course\nof business.\nWithout prejudice to the rights and remedies otherwise available to either party hereto, the Disclosing Party shall be entitled to equitable relief\nby way of injunction or otherwise if the Receiving Party or any of the Affiliates or any other affiliates of the Receiving Party breach or threaten to\nbreach any of the provisions of this letter agreement.\nIt is further understood and agreed that no failure or delay by any party hereto in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder.\nThis letter agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its\nprinciples or rules regarding conflicts of laws, other than such principles directing application of California law. Each party hereby consents to the\ninstitution and resolution of any action or proceeding of any kind or nature with respect to or arising out of this agreement brought by any party\nhereto in the federal or state courts located within the State of California.\nThis letter agreement contains the entire agreement between the parties hereto concerning confidentiality of the Proprietary Information, and\nno modification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon any party hereto, unless approved in\nwriting by each such party.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter agreement\nenclosed herewith.\nCOST PLUS, INC.\nBy: /s/ Barry J. Feld\nBarry J. Feld, Chief Executive Officer\nACCEPTED AND AGREED as of the date first written above:\nWARREN A. STEPHENS, on behalf of himself and as President and owner of Stephens Investments Holdings LLC\nBy: /s/ Warren A. Stephens\nWarren A. Stephens, President	EX-10.1 3 dex101.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit 10.1\nLOGO\nCost Plus, Inc.\n200 4th Street\nOakland, CA 94607\nTel: (510) 893-7900\nwww.costplusworldmarket.com\nMr. Warren A. Stephens\nStephens Investments Holdings LLC\n111 Center Street\nLittle Rock, AR 72201\nStephens Investments Holdings LLC\n111 Center Street\nLittle Rock, AR 72201\nJanuary 7, 2009\nGentlemen:\nAs you know, Stephens Investments Holdings LLC (“SIH”) filed a second Amendment to Schedule 13D with the Securities and Exchange\nCommission on December 5, 2008, concerning the beneficial ownership by Warren A. Stephens and SIH (collectively, the “Receiving Party”) of\nshares of common stock, par value $0.01 per share (the “Common Stock”), of Cost Plus, Inc., a California corporation (the “Disclosing Party”). As\nyou also know, the Disclosing Party has entered into an Amended and Restated Preferred Shares Rights Agreement, dated as of June 24, 2008, by\nand between the Disclosing Party and Computershare Trust Company, N.A. (the “Rights Agreement”). In response to the Receiving Party’s request,\nthe Disclosing Party has agreed to and expects to deliver to the Receiving Party, following the execution and delivery of this letter agreement by the\nReceiving Party, certain information about its properties, employees, finances, businesses and operations that has previously been prepared, in the\nordinary course.\nIn consideration of the mutual promises and covenants herein contained, and other consideration, the receipt and adequacy of which is hereby\nacknowledged, the parties hereto agree as follows:\nSubject to the approval by the Disclosing Party’s Board of Directors (“Board of Directors”), as well as the terms and conditions of the Rights\nAgreement, the Disclosing Party agrees to exempt the Receiving Party from the definition of Acquiring Person (as such term is defined in\nSection 1(a) of the Rights Agreement) in the Rights Agreement such that the Receiving Party’s beneficial ownership of up to and including 19.9% of\nthe amount of the issued and outstanding Common Stock shall not constitute a Triggering Event (as such term is defined in Section 1(qq) of the\nRights Agreement) in the Rights Agreement.\nAll information (i) about the Disclosing Party and (ii) about any third party (which information was provided to the Disclosing Party subject to\nan applicable confidentiality obligation to such third party), furnished by the Disclosing Party or its Representatives (as defined below) to the\nReceiving Party, whether furnished before or after the date hereof, and regardless of the manner in which it is furnished, is referred to in this letter\nagreement as “Proprietary Information.” Proprietary Information shall not include, however, information which (i) is or becomes generally available\nto the public other than as a result of a disclosure by the Receiving Party in violation of this letter agreement; (ii) was available to the Receiving\nParty on a nonconfidential basis prior to its disclosure by the Disclosing Party or its Representatives; (iii) becomes available to the Receiving Party\non a nonconfidential basis from a person other than the Disclosing Party or its Representatives who is, to the Receiving Party’s knowledge, not\notherwise bound by a confidentiality agreement with the Disclosing Party or any or its Representatives, or is otherwise not under an obligation to the\nDisclosing Party or any of its Representatives not to transmit the information to the Receiving Party; or (iv) was independently developed by the\nReceiving Party without reference to or use of the Proprietary Information. For purposes of this letter agreement, (i) “Representative” shall mean, as\nto any person, its directors, officers, employees, agents and advisors (including, without limitation, financial advisors, attorneys and accountants);\nand (ii) “person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by the Disclosing Party, the Receiving Party (i) except\nas required by law, shall keep all Proprietary Information confidential and shall not disclose or reveal any Proprietary Information to any person\n(other than to any Representative of any Affiliate, provided that such Representative shall keep confidential all Proprietary Information that is so\ndisclosed or revealed to him or her in accordance with the Receiving Party’s confidentiality obligations hereunder with respect to such Proprietary\nInformation); (ii) shall not use Proprietary Information for any purpose other than in connection with its evaluation of the Disclosing Party; and\n(iii) except as required by law, shall not disclose to any person the fact that Proprietary Information has been made available to the Receiving Party.\nThe Receiving Party and the Affiliates shall be responsible for any breach of the terms of this letter agreement by the Receiving Party or any\nRepresentative of any Affiliate.\nIn the event that the Receiving Party or any Affiliate is requested pursuant to, or required by, applicable law or regulation (including, without\nlimitation, any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which any of the\nReceiving Party’s securities are listed or quoted) or by legal process to disclose any Proprietary Information, the Receiving Party shall provide the\nDisclosing Party with prompt notice of such request or requirement in order to enable the Disclosing Party (i) to seek an appropriate protective order\nor other remedy, (ii) to consult with the Receiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such\nrequest or legal process or (iii) to waive compliance, in whole or in part, with the terms of this letter agreement. In the event that such protective\norder or other remedy is not timely sought or obtained, or the Disclosing Party waives compliance, in whole or in part, with the terms of this letter\nagreement, the Receiving Party shall use commercially reasonable efforts to disclose only\nthat portion of the Proprietary Information which is legally required to be disclosed and to ensure that all Proprietary Information that is so disclosed\nwill be accorded confidential treatment. In the event that the Receiving Party shall have complied, in all material respects, with the provisions of this\nparagraph, such disclosure may be made by the Receiving Party without any liability hereunder.\nFurther, the Receiving Party agrees that during any time period that the Receiving Party beneficially owns, directly or indirectly, for purposes\nof Section 13(d) of the Exchange Act and Rule 13d-3 thereunder (or any comparable or successor law or regulation) in excess of 14.9% of the\namount of the issued and outstanding Common Stock, neither the Receiving Party nor any other person affiliated with the Receiving Party shall:\n(a) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of\nthe Securities and Exchange Commission (“SEC”)), or seek to advise or influence any person or entity with respect to the voting of any voting\nsecurities of the Disclosing Party;\n(b) nominate or seek to nominate, directly or indirectly, any person to the Board of Directors;\n(c) otherwise act or seek to control or influence the management, Board of Directors or policies of the Disclosing Party;\n(d) take any action that could reasonably be expected to require the Disclosing Party to make a public announcement regarding the\npossibility of any of the events described in clauses (a) through (c) above; or\n(e) request the Disclosing Party or any of its representatives, directly or indirectly, to amend or waive any provision of this paragraph.\nThe Receiving Party also agrees that during any time period that the Receiving Party beneficially owns, directly or indirectly, for purposes of\nSection 13(d) of the Exchange Act and Rule 13d-3 thereunder (or any comparable or successor law or regulation) in excess of 14.9% of the amount\nof the issued and outstanding Common Stock (the Common Stock owned by the Receiving Party above 14.9%, the “Excess Shares”), the Receiving\nParty and any other person affiliated with the Receiving Party shall vote any and all Excess Shares in the same proportion as the votes cast by all\nother voting shareholders of the Disclosing Party.\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand\nand agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the\nsharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege. All Proprietary Information provided by the\nDisclosing Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain\nentitled to such protection under these privileges, this letter agreement, and under the joint defense doctrine. Nothing in this letter agreement\nobligates the Disclosing Party to reveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\nIn the event that the Disclosing Party, in its sole discretion, requests, the Receiving Party shall, upon the Disclosing Party’s written request,\npromptly deliver to the Disclosing Party all Proprietary Information, and, at the Receiving Party’s election, return or destroy (provided that any such\ndestruction shall be certified by the Receiving Party) all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in\nhard-copy form or on intangible media, such as electronic mail or computer files) (collectively, “Notes”) in the Receiving Party’s possession or in the\npossession of any Representative of the Receiving Party or any Affiliate. Upon the return or the destruction of the Proprietary Information, the\nReceiving Party, if the Receiving Party so desires, may retain in the files of the Receiving Party’s general counsel, for archival purposes only, one\ncopy of all materials returned or destroyed as a record of the materials disclosed. Notwithstanding the foregoing, the Receiving Party and its\nRepresentatives (i) may retain copies of the Proprietary Information and/or Notes to the extent that such retention is required to demonstrate\ncompliance with applicable law, rule, regulation or professional standards, or to comply with a bona fide document retention policy, provided,\nhowever, that any such information so retained shall be held in compliance with the terms of this letter agreement and (ii) shall, to the extent that\n(i) above is inapplicable to Proprietary Information and/or Notes that are electronically stored, destroy such electronically stored Proprietary\nInformation and/or Notes only to the extent that it is reasonably practical to do so.\nThe Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors, employees,\nagents or controlling persons of such Representatives makes any express or implied representation or warranty as to the Proprietary Information.\nThe Receiving Party is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any\nperson who has received material, non-public information from the issuer of such securities and on the communication of such information to any\nother person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\nNotwithstanding the foregoing, the Disclosing Party acknowledges that certain of the Receiving Party’s Representatives trade securities and nothing\nin this letter agreement shall restrict the ability of such Representatives to trade securities, other than applicable securities laws and, with respect\nto those of the Receiving Party’s Representatives who are also the Receiving Party’s affiliates who the Receiving Party has made aware of this letter\nagreement or who have otherwise received Proprietary Information, the standstill provision as described above. The Disclosing Party acknowledges\nthat the Receiving Party is affiliated with a registered securities broker-dealer and that registered representatives of the Receiving Party’s affiliated\nbroker-dealer who have not been informed of, or provided with, the Proprietary Information or of any material non-public information of the\nDisclosing Party may trade in the securities of the Disclosing Party for their own accounts or the accounts of their customers in the ordinary course\nof business.\nWithout prejudice to the rights and remedies otherwise available to either party hereto, the Disclosing Party shall be entitled to equitable relief\nby way of injunction or otherwise if the Receiving Party or any of the Affiliates or any other affiliates of the Receiving Party breach or threaten to\nbreach any of the provisions of this letter agreement.\nIt is further understood and agreed that no failure or delay by any party hereto in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder.\nThis letter agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its\nprinciples or rules regarding conflicts of laws, other than such principles directing application of California law. Each party hereby consents to the\ninstitution and resolution of any action or proceeding of any kind or nature with respect to or arising out of this agreement brought by any party\nhereto in the federal or state courts located within the State of California.\nThis letter agreement contains the entire agreement between the parties hereto concerning confidentiality of the Proprietary Information, and\nno modification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon any party hereto, unless approved in\nwriting by each such party.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter agreement\nenclosed herewith.\nCOST PLUS, INC.\nBy: /s/ Barry J. Feld\nBarry J. Feld, Chief Executive Officer\nACCEPTED AND AGREED as of the date first written above:\nWARREN A. STEPHENS, on behalf of himself and as President and owner of Stephens Investments Holdings LLC\nBy: /s/ Warren A. Stephens\nWarren A. Stephens, President
+4b98c7cfb5b715a77cd657209da58aa2.pdf	jurisdiction	EX-10 .1 2 a18-18045 _2ex10d1.htm EX-10.1\nExhibit F-2\nEMPLOYEE INVENTIONS AND PROPRIETARY INFORMATION AGREEMENT\nThe following agreement (the “Agreement”) between Boingo Wireless, Inc., a Delaware corporation (the “Company”), and the individual\nidentified on the signature page to this Agreement (“Employee” or “I”) is effective as of the first day of Employee’s employment by\nthe Company and confirms and memorializes the agreement that (regardless of the execution date hereof) the Company and I have\nhad since the commencement of my employment. I acknowledge that this Agreement is a material part of the consideration for my\nemployment or continued employment by the Company. In exchange for the foregoing and for other good and valuable consideration,\nincluding my access to and use of the Company’s Inventions (defined below) and Proprietary Information (defined below) for\nperformance of my employment, training and/or receipt of certain other valuable consideration, the parties agree as follows:\n1.\nNo Conflicts. I have not made, and agree not to make, any agreement, oral or written, that is in conflict with this Agreement\nor my employment with the Company. I will not violate any agreement with, or the rights of, any third party. When acting within the\nscope of my employment (or otherwise on behalf of the Company), I will not use or disclose my own or any third party’s confidential\ninformation or intellectual property (collectively, “Restricted Materials”), except as expressly authorized by the Company in writing.\nFurther, I have not retained anything containing or reflecting any confidential information or intellectual property of a prior employer\nor other third party, whether or not created by me.\n2.\nInventions.\na.\nDefinitions. “Company Interest” means any of the Company’s current and anticipated business, research and development, as\nwell as any product, service, other Invention or Intellectual Property Rights (defined below) that is sold, leased, used, licensed,\nprovided, proposed, under consideration or under development by the Company. “Intellectual Property Rights” means any and all\npatent rights, copyright rights, trademark rights, mask work rights, trade secret rights, sui generis database rights and all other\nintellectual and industrial property rights of any sort throughout the world (including any application therefor and any rights to apply\ntherefor, as well as all rights to pursue remedies for infringement or violation thereof). “Invention” means any idea, concept,\ndiscovery, learning, invention, development, research, technology, work of authorship, trade secret, software, firmware, content,\naudio-visual material, tool, process, technique, know-how, data, plan, device, apparatus, specification, design, prototype, circuit,\nlayout, mask work, algorithm, program, code, documentation or other material or information, tangible or intangible, and all versions,\nmodifications, enhancements and derivative works thereof, whether or not it may be patented, copyrighted, trademarked or otherwise\nprotected.\nb.\nAssignment. The Company shall own, and I hereby assign and agree to assign, all right, title and interest in and to all\nInventions (including all Intellectual Property Rights therein, related thereto or embodied therein) that are collected, made, conceived,\ndeveloped, reduced to practice or set out in any tangible medium of expression or otherwise created, in whole or in part (collectively\n“Created”), by me during the term of my employment with the Company that either (i) arise out of any use of the Company’s\nfacilities, equipment, Proprietary Information or other assets (collectively “Company Assets”) or any research or other activity\nconducted by, for or under the direction of the Company (whether or not conducted (A) at the Company’s facilities; (B) during\nworking hours or (C) using Company Assets), or (ii) are useful with or in or relate directly or indirectly to any Company Interest. I\nwill promptly disclose and provide all of the foregoing Inventions (the “Assigned Inventions”) to the Company. However, the\nforegoing does not purport to assign to the Company (and Assigned Inventions shall not include) any Invention that: (1) by law\n(including, without limitation, the applicable statutory provision for my state of employment set forth in Appendix A, if any) I cannot\nbe required to so assign; or (2) otherwise meets all of the following requirements: (I) the Invention is Created entirely on my own\ntime; (II) the Invention is Created entirely without use of any Company Assets and (III) the Invention is not useful with or related to\nany Company Interest.. Nevertheless, if I believe any Invention Created by me during the term of my employment is not within the\ndefinition of Assigned Inventions, I will nevertheless disclose it to the Company so that the Company may make its assessment.\nc.\nAssurances. I hereby make and agree to make all assignments to the Company necessary to effectuate and accomplish the\nCompany’s ownership in and to all Assigned Inventions. I will further assist the Company, at its expense, to evidence, record and\nperfect such assignments, and to perfect, obtain, maintain, enforce and defend any rights specified to be so owned or assigned. I\nhereby irrevocably designate and appoint the Company and its officers as my agents and attorneys-in-fact, coupled with an interest, to\nact for and on my behalf to execute and file any document and to perform all other lawfully permitted acts to further the purposes of\nthe foregoing with the same legal force and effect as if executed by me.\nd.\nOther Inventions. If (i) I use or disclose any Restricted Materials when acting within the scope of my employment (or\notherwise to or on behalf of the Company) or (ii) any Assigned Invention cannot be fully made, used, reproduced, sold, distributed,\nmodified, commercialized or otherwise exploited (collectively, “Exploited”) without using, misappropriating, infringing or violating\nany Restricted Materials, I hereby grant and agree to grant to the Company a perpetual, irrevocable, worldwide, full paid-up,\nroyalty-free, non-exclusive, assignable, transferable, sublicensable right and license to use, disclose, fully Exploit and exercise all\nrights in such Restricted Materials and all Intellectual Property Rights embodied therein or related thereto. I will not use or disclose\nany Restricted Materials for which I am not fully authorized to grant the foregoing license.\ne.\nMoral Rights. To the extent allowed by applicable law, the terms of this Section 2 include all rights of paternity, integrity,\ndisclosure, withdrawal and any other rights that may be known or referred to as moral rights, artist’s rights, droit moral or the like\n(collectively, “Moral Rights”). To the extent I retain any such Moral Rights under applicable law, I hereby ratify and consent to any\naction that may be taken with respect to such Moral Rights by or authorized by the Company, and agree not to assert any Moral\nRights with respect thereto. I will confirm any such ratification,\nconsent or agreement from time to time as requested by the Company. Furthermore, I agree that notwithstanding any rights of publicity, privacy or otherwise (whether or not statutory) anywhere in the world and without any further\ncompensation, the Company may and is hereby authorized to use my name, likeness and voice in connection with promotion of its business, products and services, and to allow others to do the same.\n3.\nProprietary Information.\na.\nDefinition; Restrictions on Use. I agree that all Assigned Inventions (and all other financial, business, legal and technical\ninformation regarding or relevant to any Company Interest that is not generally publicly known), including the identity of and any\nother information relating to the Company’s employees, Affiliates and Business Partners (as such terms are defined below), that I\ndevelop, learn or obtain during my employment or that are received by or for the Company in confidence, constitute “Proprietary\nInformation.” I will hold in strict confidence and not directly or indirectly disclose or use any Proprietary Information, except as\nrequired within the scope of my employment. My obligation of nondisclosure and nonuse of Proprietary Information under this\nSection shall continue until I can document that it is or becomes readily generally available to the public without restriction through\nno fault of mine (including breach of this Agreement)) or, if a court requires a shorter duration, then the maximum time allowable by\nlaw will control. Furthermore, I understand that this Agreement does not affect my immunity under 18 USC Sections 1833(b) (1) or\n(2), which read as follows:\n(1) An individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a\ntrade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to\nan attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.\n(2) An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the\ntrade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual\n(A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to\ncourt order.\nb.\nUpon Termination. Upon termination of my employment (for any or no reason, whether voluntary or involuntary), I will\npromptly identify and, as directed by the Company, destroy, delete or return to the Company all items containing or embodying\nProprietary Information (including all original or copies of content, whether in electronic or hard-copy form), except that I may keep\nmy personal copies of (i) my compensation records; (ii) materials distributed to shareholders generally and (iii) this Agreement.\nc.\nCompany Systems. I also recognize and agree that I have no expectation of privacy with respect to the Company’s networks,\ntelecommunications systems or information processing systems (including, without limitation, stored computer files, email messages\nand voicemail messages or other devices (including personal devices) in which Company Proprietary Information resides, is stored or\nis passed through (“Company Systems”), and in order to ensure compliance with work rules and safety concerns, the Company or its\nagents may monitor, at any time and without further notice to me, any Company Systems and any of my activity, files or messages on\nor using any Company Systems, regardless of whether such activity occurs on equipment owned by me or the Company. I further\nagree that any property situated on the Company’s premises and owned, leased or otherwise possessed by the Company, including\ncomputers, computer files, email, voicemail, storage media, filing cabinets or other work areas, is subject to inspection by Company\npersonnel at any time with or without notice. I understand and acknowledge that (A) any such searches or monitoring efforts are not\nformal accusations of wrongdoing but rather part of the procedure of an investigation and (B) refusal to consent to such a search may\nbe grounds for discipline.\n4.\nRestricted Activities. For the purposes of this Section 4, the term “the Company” includes the Company and all other persons\nor entities that control, are controlled by or are under common control with the Company (“Affiliates”) and for whom Employee\nperformed responsibilities or about whom Employee has Proprietary Information.\nf.\nDefinitions. “Competitive Activities” means any direct or indirect non-Company activity (i) that is the same or substantially\nsimilar to Employee’s responsibilities for the Company that relates to, is substantially similar to, or competes with the Company (or\nits demonstrably planned interests) at the time of Employee’s termination from the Company; or (ii) involving the use or disclosure,\nor the likelihood of the use or disclosure, of Proprietary Information. Competitive Activities do not include being a holder of less than\none percent (1%) of the outstanding equity of a public company. “Business Partner” means any past (i.e ., within the twelve (12)\nmonths preceding Employee’s termination from the Company), present or prospective (i.e ., actively pursued by the Company within\nthe twelve (12) months preceding Employee’s termination from the Company) customer, vendor, supplier, distributor or other\nbusiness partner of the Company with whom Employee comes into contact during Employee’s employment with the Company or\nabout whom Employee had knowledge by reason of Employee’s relationship with the Company or because of Employee’s access to\nProprietary Information. “Cause” means to recruit, employ, retain or otherwise solicit, induce or influence, or to attempt to do so\n(provided that if I am a resident of California, “Cause” means to recruit, or otherwise solicit, induce or influence, or to attempt to do\nso). “Solicit”, with respect to Business Partners, means to (A) service, take orders from or solicit the business or patronage of any\nBusiness Partner for Employee or any other person or entity, (B) divert, entice or otherwise take away from the Company the\nbusiness or patronage of any Business Partner, or to attempt to do so, or (C) solicit, induce or encourage any Business Partner to\nterminate or reduce its relationship with the Company.\ng.\nAcknowledgments.\ni.\nI acknowledge and agree that (A) the Company’s business is highly competitive; (B) secrecy of the Proprietary Information is\nof the utmost importance to the Company, and I will learn and use Proprietary Information in the course of performing my work for\nthe Company and (C) my position may require me to establish\ngoodwill with Business Partners and employees on behalf of the Company and such goodwill is extremely important to the Company’s success, and the Company has made substantial investments to develop its business interests and\ngoodwill.\nii.\nI agree that the limitations as to time, geographical area and scope of activity to be restrained in this Section 4 are coextensive\nwith the Company’s footprint and my performance of responsibilities for the Company and are therefore reasonable and not greater\nthan necessary to protect the goodwill or other business interests of the Company. I further agree that such investments are worthy of\nprotection and that the Company’s need for protection afforded by this Section 4 is greater than any hardship I may experience by\ncomplying with its terms.\ni.\nI acknowledge that my violation or attempted violation of the agreements in this Section 4 will cause irreparable damage to\nthe Company or its Affiliates, and I therefore agree that the Company shall be entitled as a matter of right to an injunction out of any\ncourt of competent jurisdiction, restraining any violation or further violation of such agreements by me or others acting on my behalf.\nThe Company’s right to injunctive relief shall be cumulative and in addition to any other remedies provided by law or equity.\nii.\nAlthough the parties believe that the limitations as to time, geographical area and scope of activity contained herein are\nreasonable and do not impose a greater restraint than necessary to protect the goodwill or other business interests of the Company, if\nit is judicially determined otherwise, the limitations shall be reformed to the extent necessary to make them reasonable and not to\nimpose a restraint that is greater than necessary to protect the goodwill or other business interests of the Company.\niii.\nIn any such case, the Company and I agree that the remaining provisions of this Section 4 shall be valid and binding as though\nany invalid or unenforceable provision had not been included.\nc.\nAs an Employee. During my employment with the Company, I will not directly or indirectly: (i) Cause any person to cease or\nreduce their services (as an employee or otherwise) to the Company (other than terminating subordinate employees in the course of\nmy duties for the Company); (ii) Solicit any Business Partner; (iii) act in any capacity in or with respect to any commercial activity\nwhich competes, or is reasonably likely to compete, with any business that the Company conducts, proposes to conduct or\ndemonstrably anticipates conducting, at any time during my employment with the Company or (iv) enter into in an employment,\nconsulting or other similar relationship with another person or entity that requires a significant time commitment without the prior\nwritten consent of the Company.\nh.\nAfter Termination. For the period of twelve (12) months immediately following my termination of employment with the\nCompany (for any or no reason, whether voluntary or involuntary), I will not directly or indirectly: (i) Cause any person to cease or\nreduce their services (as an employee or otherwise) to the Company; or (ii) unless I am a resident of California (A) Solicit any\nBusiness Partner or (B) engage in any Competitive Activities (I) anywhere the Company offers its services or has customers during\nmy employment with the Company or where my use or disclosure of Proprietary Information could materially disadvantage the\nCompany regardless of my physical location; or (II) anywhere the Company offers its services or has customers and where I have\nresponsibility for the Company or (III) anywhere within a fifty (50) mile radius of any physical location I work for the Company. The\nforegoing timeframes shall be increased by the period of time beginning from the commencement of any violation of the foregoing\nprovisions until such time as I have cured such violation.\n5.\nEmployment at Will. I agree that this Agreement is not an employment contract for any particular term. I have the right to\nresign and the Company has the right to terminate my employment at will, at any time, for any or no reason, with or without cause.\nThis Agreement does not purport to set forth all of the terms and conditions of my employment, and as an employee of the\nCompany, I have obligations to the Company which are not described in this Agreement. However, the terms of this Agreement\ngovern over any such terms that are inconsistent with this Agreement, and supersede the terms of any similar form that I may have\npreviously signed. This Agreement can only be changed by a subsequent written agreement signed by the Chief Executive Officer or\nPresident of the Company, or an officer designee authorized in writing by the foregoing or the Company’s Board of Directors.\n3.\nSurvival. I agree that any change or changes in my employment title, duties, compensation, or equity interest after the signing\nof this Agreement shall not affect the validity or scope of this Agreement. I agree that the terms of this Agreement, and any\nobligations I have hereunder, shall continue in effect after termination of my employment, regardless of the reason, and whether such\ntermination is voluntary or involuntary, and that the Company is entitled to communicate my obligations under this Agreement to any\nof my potential or future employers. I will provide a copy of this Agreement to any potential or future employers of mine, so that they\nare aware of my obligations hereunder. This Agreement, and any obligations I have hereunder, also shall be binding upon my heirs,\nexecutors, assigns and administrators, and shall inure to the benefit of the Company, its Affiliates, successors and assigns. This\nAgreement and any rights and obligations of the Company hereunder may be freely assigned and transferred by the Company, in\nwhole or part, to any third party.\n4.\nMiscellaneous. Any dispute in the meaning, effect or validity of this Agreement shall be resolved in accordance with (a) the\nlaws of the State of California if I am an employee located in the State of California, or, alternatively, (b) the laws of the State of\nDelaware, if I am employee located outside of the State of California, in either case, without regard to the conflict of laws provisions\nthereof. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a\nwaiver of such rights. Unless expressly provided otherwise, each right and remedy in this Agreement is in addition to any other right\nor remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If\none or more provisions of this Agreement is held to be illegal or unenforceable under applicable law, such illegal or unenforceable\nportion shall be limited or excluded from this Agreement to the minimum extent required so that this Agreement shall otherwise\nremain in full force and effect and enforceable. I acknowledge and agree that any breach or threatened breach of this Agreement will\ncause irreparable harm to\nthe Company for which damages would not be an adequate remedy, and, therefore, the Company is entitled to injunctive relief with respect thereto (without the necessity of posting any bond) in addition to any other remedies.\n[Signature Page Follows]\nI HAVE READ THIS AGREEMENT CAREFULLY AND I UNDERSTAND AND ACCEPT THE OBLIGATIONS THAT IT IMPOSES UPON ME WITHOUT RESERVATION. NO PROMISES OR\nREPRESENTATIONS HAVE BEEN MADE TO ME TO INDUCE ME TO SIGN THIS AGREEMENT. I SIGN THIS AGREEMENT VOLUNTARILY AND FREELY , WITH THE UNDERSTANDING THAT I EITHER\n(1) HAVE RETAINED A COPY OF THIS AGREEMENT OR (2) MAY REQUEST A COPY OF THIS AGREEMENT FROM THE COMPANY AT ANY TIME.\nBOINGO WIRELESS, INC .\nEMPLOYEE\nBy:\nBy:\nName:\nName:\nTitle:\nAddress:\nDated:\nDated:	EX-10.l 2 a18-18045_2ex10d1.htm EX-10.l\nExhibilF-Z\nEMPLOYEE INVENTIONS AND PROPRIETARY INFORMATION AGREEMENT\nThe following agreement (the ”A greement”) between Boingo Wireless, Inc., a Delaware corporation (the ”Company”), and the individual\nidentified on the signature page to this Agreement (”Employee” or ”I”) is effective as of the first day of Employee' s employment by\nthe Company and confirms and memorializes the agreement that (regardless of the execution date hereof) the Company and I have\nhad since the commencement of my employment. I acknowledge that this Agreement is a material part of the consideration for my\nemployment or continued employment by the Company. In exchange for the foregoing and for other good and valuable consideration,\nincluding my access to and use of the Company' s Inventions (defined below) and Proprietary Information (defined below) for\nperformance of my employment, training and/or receipt of certain other valuable consideration, the parties agree as follows:\n1. No C onflicts. I have not made, and agree not to make, any agreement, oral or written, that is in conflict with this Agreement\nor my employment with the Company. I will not violate any agreement with, or the rights of, any third party. When acting within the\nscope of my employment (or otherwise on behalf of the Company), I will not use or disclose my own or any third party’ s confidential\ninformation or intellectual property (collectively, ”Restricted Materials" 1, except as expressly authorized by the Company in writing.\nFurther, I have not retained anything containing or reflecting any confidential information or intellectual property of a prior employer\nor other third party, whether or not created by me.\n2. Inventions.\na. Definitions. ”Company Interest” means any of the Company' s current and anticipated business, research and development, as\nwell as any product, service, other Invention or Intellectual Property Rights (defined below) that is sold, leased, used, licensed,\nprovided, proposed, under consideration or under development by the Company. ”Intellectual Propem Rights” means any and all\npatent rights, copyright rights, trademark rights, mask work rights, trade secret rights, sui generis database rights and all other\nintellectual and industrial property rights of any sort throughout the world (including any application therefor and any rights to apply\ntherefor, as well as all rights to pursue remedies for infringement or violation thereof). ”Invention” means any idea, concept,\ndiscovery, learning, invention, development, research, technology, work of authorship, trade secret, software, firmware, content,\naudio-visual material, tool, process, technique, know-how, data, plan, device, apparatus, specification, design, prototype, circuit,\nlayout, mask work, algorithm, program, code, documentation or other material or information, tangible or intangible, and all versions,\nmodifications, enhancements and derivative works thereof, whether or not it may be patented, copyrighted, trademarked or otherwise\nprotected.\n1). Assignment. The Company shall own, and I hereby assign and agree to assign, all right, title and interest in and to all\nInventions (including all Intellectual Property Rights therein, related thereto or embodied therein) that are collected, made, conceived,\ndeveloped, reduced to practice or set out in any tangible medium of expression or otherwise created, in whole or in part (collectively\n”Created”), by me during the term of my employment with the Company that either (i) arise out of any use of the Company’s\nfacilities, equipment, Proprietary Information or other assets (collectively ”Company A ssets”) or any research or other activity\nconducted by, for or under the direction of the Company (whether or not conducted (A) at the Company' s facilities; (B) during\nworking hours or (C) using Company Assets), or (ii) are useful with or in or relate directly or indirectly to any Company Interest. I\nwill promptly disclose and provide all of the foregoing Inventions (the ”A ssigned Inventions") to the Company. However, the\nforegoing does not purport to assign to the Company (and Assigned Inventions shall not include) any Invention that: (1) by law\n(including, without limitation, the applicable statutory provision for my state of employment set forth in Appendix A, if any) I cannot\nbe required to so assign; or (2) otherwise meets all of the following requirements: (I) the Invention is Created entirely on my own\ntime; (II) the Invention is Created entirely without use of any Company Assets and (III) the Invention is not useful with or related to\nany Company Interest. Nevertheless, if I believe any Invention Created by me during the term of my employment is not within the\ndefinition of Assigned Inventions, I will nevertheless disclose it to the Company so that the Company may make its assessment.\n0. Assurances. I hereby make and agree to make all assignments to the Company necessary to effectuate and accomplish the\nCompany' s ownership in and to all Assigned Inventions. I will further assist the Company, at its expense, to evidence, record and\nperfect such assignments, and to perfect, obtain, maintain, enforce and defend any rights specified to be so owned or assigned. I\nhereby irrevocably designate and appoint the Company and its officers as my agents and attorneys-in-fact, coupled with an interest, to\nact for and on my behalf to execute and file any document and to perform all other lawfully permitted acts to further the purposes of\nthe foregoing with the same legal force and effect as if executed by me.\nd. Other Inventions. If (i) I use or disclose any Restricted Materials when acting within the scope of my employment (or\notherwise to or on behalf of the Company) or (ii) any Assigned Invention cannot be fully made, used, reproduced, sold, distributed,\nmodified, commercialized or otherwise exploited (collectively, ”Exploited”! without using, misappropriating, infringing or violating\nany Restricted Materials, I hereby grant and agree to grant to the Company a perpetual, irrevocable, worldwide, full paid-up,\nroyalty-free, non- exclusive, assignable, transferable, sublicensable right and license to use, disclose, fully Exploit and exercise all\nrights in such Restricted Materials and all Intellectual Property Rights embodied therein or related thereto. I will not use or disclose\nany Restricted Materials for which I am not fully authorized to grant the foregoing license.\ne. Moral Rights. To the extent allowed by applicable law, the terms of this Section 2 include all rights of paternity, integrity,\ndisclosure, withdrawal and any other rights that may be known or referred to as moral rights, artist' s rights, droit moral or the like\n(collectively, ”M oral Rights” 1. To the extent I retain any such Moral Rights under applicable law, I hereby ratify and consent to any\naction that may be taken with respect to such Moral Rights by or authorized by the Company, and agree not to assert any Moral\nRights with respect thereto. I will confirm any such ratification,\n \nconsent or agreement from time to time as requested by the Company. Furthermore, I agree that notwithstanding any rights of publicity, privacy or otherwise (whether or not statutory) anywhere in the world and without any further\ncompensation, the Company may and is hereby authorized to use my name, likeness and voice in connection with promotion of its business, products and services, and to allow others to do the same.\n3. Proprletary Information.\na. Definition; Restrictions on Use. I agree that all Assigned Inventions (and all other financial, business, legal and technical\ninformation regarding or relevant to any Company Interest that is not generally publicly known), including the identity of and any\nother information relating to the Company' s employees, Affiliates and Business Partners (as such terms are defined below), that I\ndevelop, learn or obtain during my employment or that are received by or for the Company in confidence, constitute ”Proprietary\nInformation.” I will hold in strict confidence and not directly or indirectly disclose or use any Proprietary Information, except as\nrequired within the scope of my employment. My obligation of nondisclosure and nonuse of Proprietary Information under this\nSection shall continue until I can document that it is or becomes readily generally available to the public without restriction through\nno fault of mine (including breach of this A greement)) or, if a court requires a shorter duration, then the maximum time allowable by\nlaw will control. Furthermore, I understand that this Agreement does not affect my immunity under 18 USC Sections 1833(b) (1) or\n(2), which read as follows:\n(1) An individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a\ntrade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to\nan attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.\n(2) An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the\ntrade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual\n(A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to\ncourt order.\nb. Upon Termination. Upon termination of my employment (for any or no reason, whether voluntary or involuntary), I will\npromptly identify and, as directed by the Company, destroy, delete or return to the Company all items containing or embodying\nProprietary Information (including all original or copies of content, whether in electronic or hard-copy form), except that I may keep\nmy personal copies of (i) my compensation records; (ii) materials distributed to shareholders generally and (iii) this Agreement.\nc. Company Systems. I also recognize and agree that I have no expectation of privacy with respect to the Company' s networks,\ntelecommunications systems or information processing systems (including, without limitation, stored computer files, email messages\nand voicemail messages or other devices (including personal devices) in which Company Proprietary Information resides, is stored or\nis passed through (”Company Systems" 1, and in order to ensure compliance with work rules and safety concerns, the Company or its\nagents may monitor, at any time and without further notice to me, any Company Systems and any of my activity, files or messages on\nor using any Company Systems, regardless of whether such activity occurs on equipment owned by me or the Company. I further\nagree that any property situated on the Company' s premises and owned, leased or otherwise possessed by the Company, including\ncomputers, computer files, email, voicemail, storage media, filing cabinets or other work areas, is subject to inspection by Company\npersonnel at any time with or without notice. I understand and acknowledge that (A) any such searches or monitoring efforts are not\nformal accusations of wrongdoing but rather part of the procedure of an investigation and (B) refusal to consent to such a search may\nbe grounds for discipline.\n4. Restricted Activities. For the purposes of this Section 4, the term ”the Company" includes the Company and all other persons\nor entities that control, are controlled by or are under common control with the Company (”A ffiliates") and for whom Employee\nperformed responsibilities or about whom Employee has Proprietary Information.\nr. Definitions. ”Competitive Activities” means any direct or indirect non-Company activity (i) that is the same or substantially\nsimilar to Employee' s responsibilities for the Company that relates to, is substantially similar to, or competes with the Company (or\nits demonstrably planned interests) at the time of Employee' s termination from the Company; or (ii) involving the use or disclosure,\nor the likelihood of the use or disclosure, of Proprietary Information. Competitive Activities do not include being a holder of less than\none percent (1%) of the outstanding equity of a public company. ”Business Partner” means any past (i.e., within the twelve (12)\nmonths preceding Employee’s termination from the Company), present or prospective (i.e., actively pursued by the Company within\nthe twelve (12) months preceding Employee’ s termination from the Company) customer, vendor, supplier, distributor or other\nbusiness partner of the Company with whom Employee comes into contact during Employee’ s employment with the Company or\nabout whom Employee had knowledge by reason of Employee' s relationship with the Company or because of Employee' s access to\nProprietary Information. ”Cause" means to recruit, employ, retain or otherwise solicit, induce or influence, or to attempt to do so\n(provided that if I am a resident of California, ”Cause" means to recruit, or otherwise solicit, induce or influence, or to attempt to do\nso). ”Solicit", with respect to Business Partners, means to (A) service, take orders from or solicit the business or patronage of any\nBusiness Partner for Employee or any other person or entity, (B) divert, entice or otherwise take away from the Company the\nbusiness or patronage of any Business Partner, or to attempt to do so, or (C) solicit, induce or encourage any Business Partner to\nterminate or reduce its relationship with the Company.\ng. Acknowledgments.\nr. I acknowledge and agree that (A) the Company' s business is highly competitive; (B) secrecy of the Proprietary Information is\nof the utmost importance to the Company, and I will learn and use Proprietary Information in the course of performing my work for\nthe Company and (C) my position may require me to establish\n \ngoodwill with Business Farmers and employees on behalf of the Company and such goodwill is extremely important to the Company' s success, and the Company has made substantial investments to develop its business interests and\ngoodwill.\nu. I agree that the limitations as to time, geographical area and scope of activity to be restrained in this Section 4 are coextensive\nwith the Company' s footprint and my performance of responsibilities for the Company and are therefore reasonable and not greater\nthan necessary to protect the goodwill or other business interests of the Company. I further agree that such investments are worthy of\nprotection and that the Company' s need for protection afforded by this Section 4 is greater than any hardship I may experience by\ncomplying with its terms.\ni. I acknowledge that my violation or attempted violation of the agreements in this Section 4 will cause irreparable damage to\nthe Company or its Affiliates, and I therefore agree that the Company shall be entitled as a matter of right to an injunction out of any\ncourt of competent jurisdiction, restraining any violation or further violation of such agreements by me or others acting on my behalf.\nThe Company' 5 right to injunctive relief shall be cumulative and in addition to any other remedies provided by law or equity.\n11. Although the parties believe that the limitations as to time, geographical area and scope of activity contained herein are\nreasonable and do not impose a greater restraint than necessary to protect the goodwill or other business interests of the Company, if\nit is judicially determined otherwise, the limitations shall be reformed to the extent necessary to make them reasonable and not to\nimpose a restraint that is greater than necessary to protect the goodwill or other business interests of the Company.\nin. In any such case, the Company and I agree that the remaining provisions of this Section 4 shall be valid and binding as though\nany invalid or unenforceable provision had not been included.\n0. As an Employee. During my employment with the Company, I will not directly or indirectly: (i) Cause any person to cease or\nreduce their services (as an employee or otherwise) to the Company (other than terminating subordinate employees in the course of\nmy duties for the Company); (ii) Solicit any Business Partner; (iii) act in any capacity in or with respect to any commercial activity\nwhich competes, or is reasonably likely to compete, with any business that the Company conducts, proposes to conduct or\ndemonstrably anticipates conducting, at any time during my employment with the Company or (iv) enter into in an employment,\nconsulting or other similar relationship with another person or entity that requires a significant time commitment without the prior\nwritten consent of the Company.\nh. After Termination. For the period of twelve (12) months immediately following my termination of employment with the\nCompany (for any or no reason, whether voluntary or involuntary), I will not directly or indirectly: (i) Cause any person to cease or\nreduce their services (as an employee or otherwise) to the Company; or (ii) unless I am a resident of California (A) Solicit any\nBusiness Partner or (B) engage in any Competitive A ctivities (I) anywhere the Company offers its services or has customers during\nmy employment with the Company or where my use or disclosure of Proprietary Information could materially disadvantage the\nCompany regardless of my physical location; or (II) anywhere the Company offers its services or has customers and where l have\nresponsibility for the Company or (III) anywhere within a fifty (50) mile radius of any physical location I work for the Company. The\nforegoing timeframes shall be increased by the period of time beginning from the commencement of any violation of the foregoing\nprovisions until such time as l have cured such violation.\n5. Employment at Will. I agree that this Agreement is not an employment contract for any particular term. I have the right to\nresign and the Company has the right to terminate my employment at will, at any time, for any or no reason, with or without cause.\nThis Agreement does not purport to set forth all of the terms and conditions of my employment, and as an employee of the\nCompany, I have obligations to the Company which are not described in this Agreement. However, the terms of this Agreement\ngovern over any such terms that are inconsistent with this Agreement, and supersede the terms of any similar form that I may have\npreviously signed. This Agreement can only be changed by a subsequent written agreement signed by the Chief Executive Officer or\nPresident of the Company, or an officer designee authorized in writing by the foregoing or the Company' 5 Board of Directors.\n3. Survival. 1 agree that any change or changes in my employment title, duties, compensation, or equity interest after the signing\nof this A greement shall not affect the validity or scope of this A greement. I agree that the terms of this A greement, and any\nobligations l have hereunder, shall continue in effect after termination of my employment, regardless of the reason, and whether such\ntermination is voluntary or involuntary, and that the Company is entitled to communicate my obligations under this Agreement to any\nof my potential or future employers. I will provide a copy of this Agreement to any potential or future employers of mine, so that they\nare aware of my obligations hereunder. This Agreement, and any obligations l have hereunder, also shall be binding upon my heirs,\nexecutors, assigns and administrators, and shall inure to the benefit of the Company, its Affiliates, successors and assigns. This\nAgreement and any rights and obligations of the Company hereunder may be freely assigned and transferred by the Company, in\nwhole or part, to any third party.\n4. Miscellaneous. Any dispute in the meaning, effect or validity of this Agreement shall be resolved in accordance with (a) the\nlaws of the State of California if I am an employee located in the State of California, or, alternatively, (b) the laws of the State of\nDelaware, if I am employee located outside of the State of California, in either case, without regard to the conflict of laws provisions\nthereof. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a\nwaiver of such rights. Unless expressly provided otherwise, each right and remedy in this Agreement is in addition to any other right\nor remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If\none or more provisions of this Agreement is held to be illegal or unenforceable under applicable law, such illegal or unenforceable\nportion shall be limited or excluded from this Agreement to the minimum extent required so that this Agreement shall otherwise\nremain in full force and effect and enforceable. I acknowledge and agree that any breach or threatened breach of this Agreement will\ncause irreparable harm to\n \nthe Company for which damages would not be an adequate remedy, and, therefore, the Company is entitled to injunctive relief with respect thereto (without the necessity of posting any bond) in addition to any other remedies.\n[Signature Page Follows]\nI HAVE READ THIS AGREEMENT CAREFULLY AND [UNDERSTAND AND ACCEPT THE OBLIGATIONS THAT IT IMPOSES UPON ME WITHOUT RESERVATION. NO PROMISES 0R\nREPRESENTATIONS HAVE BEEN MADE TO ME TO INDUCE ME TO SIGN THIS AGREEMENT. I SIGN THIS AGREEMENT VOLUNTARILY AND FREELY, WITH THE UNDERSTANDING THAT I EITHER\n(1) HAVE RETAINED A COPY OF THIS AGREEMENT 0R (2) MAY REQUEST A COPY OF THIS AGREEMENT FROM THE COMPANY AT ANY TIME.\nBOINGO WIRELESS, INC. EMPLOYEE\nBy: By:\nName: Name:\nTitle: Address:\nDated:\nDated:	EX-10.1 a18-18045 2ex10d1.htm EX-10.1\nExhibit F-2\nEMPLOYEE INVENTIONS AND PROPRIETARY INFORMATION AGREEMENT\nThe\nfollowing agreement (the Agreement") between Boingo Wireless, Inc., a Delaware corporation (the "Company"), and the individual\nidentified on the signature page to this A greement ("Employee" or "I") is effective as of the first day of Employee's employment by\nthe Company and confirms and memorializes the agreement that (regardless of the execution date hereof) the Company and I have\nhad since the commencement of my employment I acknowledge that this greement is a material part of the consideration for my\nemployment or continued employment by the Company. In exchange for the foregoing and for other good and valuable consideration,\nincluding my access to and use of the Company's Inventions (defined below) and Proprietary Information (defined below) for\nperformance of my employment, training and/or receipt of certain other valuable consideration, the parties agree as follows:\n1.\nNo C onflicts. I have not made, and agree not to make, any agreement, oral or written, that is in conflict with this A greement\nor my employment with the Company. I will not violate any agreement with, or the rights of, any third party. When acting within the\nscope of my employment (or otherwise on behalf of the Company), I will not use or disclose my own or any third party's confidential\ninformation or intellectual property (collectively, "Restricted Materials"), except as expressly authorized by the Company in writing.\nFurther, I have not retained anything containing or reflecting any confidential information or intellectual property of a prior employer\nor other third party, whether or not created by me.\n2.\nInventions.\nDefinitions. "Company Interest" means any of the Company's current and anticipated business, research and development, as\nwell as any product service, other Invention or Intellectual Property Rights (defined below) that is sold, leased, used, licensed,\nprovided, proposed, under consideration or under development by the Company. "Intellectual Property Rights" means any and all\npatent rights, copyright rights, trademark rights, mask work rights, trade secret rights, sui generis database rights and all other\nintellectual and industrial property rights of any sort throughout the world (including any application therefor and any rights to apply\ntherefor, as well as all rights to pursue remedies for infringement or violation thereof). "Invention" means any idea, concept,\ndiscovery, learning, invention, development, research, technology, work of authorship, trade secret, software, firmware, content,\naudio-visual material, tool, process, technique, know-how, data, plan, device, apparatus, specification, design, prototype, circuit,\nlayout, mask work, algorithm, program, code, documentation or other material or information, tangible or intangible, and all versions,\nmodifications, enhancements and derivative works thereof, whether or not it may be patented, copyrighted, trademarked or otherwise\nprotected.\nb.\nA ssignment. The Company shall own, and I hereby assign and agree to assign, all right, title and interest in and to all\nInventions (including all Intellectual Property Rights therein, related thereto or embodied therein) that are collected, made, conceived,\ndeveloped, reduced to practice or set out in any tangible medium of expression or otherwise created, in whole or in part (collectively\n"Created"), by me during the term of my employment with the Company that either (i) arise out of any use of the Company's\nfacilities, equipment, Proprietary Information or other assets (collectively "Company Assets") or any research or other activity\nconducted by, for or under the direction of the Company (whether or not conducted (A) at the Company's facilities; (B) during\nworking hours or (C) using Company Assets), or (ii) are useful with or in or relate directly or indirectly to any Company Interest\nI\nwill promptly disclose and provide all of the foregoing Inventions (the Assigned Inventions") to the Company. However, the\nforegoing does not purport to assign to the Company (and ssigned Inventions shall not include) any Invention that: (1) by law\n(including, without limitation, the applicable statutory provision for my state of employment set forth in Appendix A if any) I cannot\nbe required to so assign; or (2) otherwise meets all of the following requirements: (I) the Invention is Created entirely on my own\ntime; (II) the Invention is Created entirely without use of any Company ssets and (III) the Invention is not useful with or related\nto\nany Company Interest.. Nevertheless, if I believe any Invention Created by me during the term of my employment is not within the\ndefinition of ssigned Inventions, I will nevertheless disclose it to the Company so that the Company may make its assessment\nAssurances. I hereby make and agree to make all assignments to the Company necessary to effectuate and accomplish the\nCompany's ownership in and to all ssigned Inventions. I will further assist the Company, at its expense, to evidence, record and\nperfect such assignments, and to perfect, obtain, maintain, enforce and defend any rights specified to be so owned or assigned. I\nhereby irrevocably designate and appoint the Company and its officers as my agents and attorneys-in-fact, coupled with an interest, to\nact for and on my behalf to execute and file any document and to perform all other lawfully permitted acts to further the purposes of\nthe foregoing with the same legal force and effect as if executed by me.\nd.\nOther Inventions. If (i) I use or disclose any Restricted Materials when acting within the scope of my employment (or\notherwise to or on behalf of the Company) or (ii) any ssigned Invention cannot be fully made, used, reproduced, sold, distributed,\nmodified, commercialized or otherwise exploited (collectively, "Exploited") without using, misappropriating, infringing or violating\nany Restricted Materials, I hereby grant and agree to grant to the Company a perpetual, irrevocable, worldwide, full paid-up,\nroyalty-free, non-exclusive, assignable, transferable, sublicensable right and license to use, disclose, fully Exploit and exercise all\nrights in such Restricted Materials and all Intellectual Property Rights embodied therein or related thereto. I will not use or disclose\nany Restricted Materials for which I am not fully authorized to grant the foregoing license.\nMoral Rights. To the extent allowed by applicable law, the terms of this Section 2 include all rights of paternity, integrity,\ndisclosure,\nwithdrawal\nand\nany\nother\nrights\nthat\nmay\nbe\nknown\nor\nreferred\nto\nas\nmoral\nrights,\nartist's\nrights,\ndroit\nmoral\nor\nthe\nlike\n(collectively, "Moral Rights"). To the extent I retain any such Moral Rights under applicable law, I hereby ratify and consent to any\naction that may be taken with respect to such Moral Rights by or authorized by the Company, and agree not to assert any Moral\nRights with respect thereto. I will confirm any such ratification,\nconsent or agreement from time to time as requested by the Company. Furthermore, I agree that notwithstanding any rights of publicity, privacy or otherwise (whether or not statutory) anywhere in the world and without any further\ncompensation, the Company may and is hereby authorized to use my name likeness and voice in connection with promotion of its business, products and services, and to allow others to do the same.\n3.\nProprietary Information.\nDefinition; Restrictions on Use. I agree that all Assigned Inventions (and all other financial, business, legal and technical\ninformation regarding or relevant to any Company Interest that is not generally publicly known), including the identity of and any\nother information relating to the Company's employees, A ffiliates and Business Partners (as such terms are defined below), that I\ndevelop, learn or obtain during my employment or that are received by or for the Company in confidence, constitute "Proprietary\nInformation." I will hold in strict confidence and not directly or indirectly disclose or use any Proprietary Information, except as\nrequired within the scope of my employment. My obligation of nondisclosure and nonuse of Proprietary Information under this\nSection shall continue until I can document that it is or becomes readily generally available to the public without restriction through\nno fault of mine (including breach of this A greement)) or, if a court requires a shorter duration, then the maximum time allowable by\nlaw will control. Furthermore, I understand that this Agreement does not affect my immunity under 18 USC Sections 1833(b) (1) or\n(2), which read as follows:\n(1) An individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a\ntrade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to\nan attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.\n(2)\nAn individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the\ntrade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual\n(A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to\ncourt order.\nb.\nUpon Termination. Upon termination of my employment (for any or no reason, whether voluntary or involuntary), I will\npromptly identify and, as directed by the Company, destroy, delete or return to the Company all items containing or embodying\nProprietary Information (including all original or copies of content, whether in electronic or hard-copy form), except that I may keep\nmy personal copies of (i) my compensation records; (ii) materials distributed to shareholders generally and (iii) this greement.\nCompany Systems. I also recognize and agree that I have no expectation of privacy with respect to the Company's networks,\ntelecommunications systems or information processing systems (including, without limitation, stored computer files, email messages\nand voicemail messages or other devices (including personal devices) in which Company Proprietary Information resides, is stored or\nis passed through ("Company Systems"), and in order to ensure compliance with work rules and safety concerns, the Company or its\nagents may monitor, at any time and without further notice to me, any Company Systems and any of my activity, files or messages on\nor using any Company Systems, regardless of whether such activity occurs on equipment owned by me or the Company. I further\nagree that any property situated on the Company's premises and owned, leased or otherwise possessed by the Company, including\ncomputers, computer files, email, voicemail, storage media, filing cabinets or other work areas, is subject to inspection by Company\npersonnel at any time with or without notice. I understand and acknowledge that (A) any such searches or monitoring efforts are not\nformal accusations of wrongdoing but rather part of the procedure of an investigation and (B) refusal to consent to such a search may\nbe grounds for discipline.\n4.\nRestricted Activities. For the purposes of this Section 4, the term "the Company" includes the Company and all other persons\nor entities that control, are controlled by or are under common control with the Company Affiliates") and for whom Employee\nperformed responsibilities or about whom Employee has Proprietary Information.\nf.\nDefinitions. "Competitive ctivities" means any direct or indirect non-Company activity (i) that is the same or substantially\nsimilar to Employee's responsibilities for the Company that relates to, is substantially similar to, or competes with the Company (or\nits demonstrably planned interests) at the time of Employee's termination from the Company; or (ii) involving the use or disclosure,\nor the likelihood of the use or disclosure, of Proprietary Information. Competitive A ctivities do not include being a holder of less than\none percent (1%) of the outstanding equity of a public company. "Business Partner" means any past (i.e., within the twelve (12)\nmonths preceding Employee's termination from the Company), present or prospective (i.e., actively pursued by the Company within\nthe twelve (12) months preceding Employee's termination from the Company) customer, vendor, supplier, distributor or other\nbusiness partner of the Company with whom Employee comes into contact during Employee's employment with the Company or\nabout whom Employee had knowledge by reason of Employee's relationship with the Company or because of Employee's access to\nProprietary Information. "Cause" means to recruit, employ, retain or otherwise solicit, induce or influence, or to attempt to do so\n(provided that if I am a resident of California, "Cause" means to recruit, or otherwise solicit, induce or influence, or to attempt to do\nso). "Solicit", with respect to Business Partners, means to (A) service, take orders from or solicit the business or patronage of any\nBusiness Partner for Employee or any other person or entity, (B) divert, entice or otherwise take away from the Company the\nbusiness or patronage of any Business Partner, or to attempt to do so, or (C) solicit, induce or encourage any Business Partner to\nterminate or reduce its relationship with the Company.\ng.\nAcknowledgments.\nI acknowledge and agree that (A) the Company's business is highly competitive; (B) secrecy of the Proprietary Information is\nof the utmost importance to the Company, and I will learn and use Proprietary Information in the course of performing my work for\nthe Company and (C) my position may require me to establish\ngoodwill with Business Partners and employees on behalf of the Company and such goodwill is extremely important to the Company's success, and the Company has made substantia investments to develop its business interests and\ngoodwill.\nii.\nI agree that the limitations as to time, geographical area and scope of activity to be restrained in this Section 4 are coextensive\nwith the Company's footprint and my performance of responsibilities for the Company and are therefore reasonable and not greater\nthan\nnecessary\nto\nprotect\nthe\ngoodwill\nor\nother\nbusiness\ninterests\nof\nthe\nCompany.\nI\nfurther\nagree\nthat\nsuch\ninvestments\nare\nworthy\nof\nprotection and that the Company's need for protection afforded by this Section 4 is greater than any hardship I may experience by\ncomplying with its terms.\nI acknowledge that my violation or attempted violation of the agreements in this Section 4 will cause irreparable damage to\nthe Company or its ffiliates, and I therefore agree that the Company shall be entitled as a matter of right to an injunction out of any\ncourt of competent jurisdiction, restraining any violation or further violation of such agreements by me or others acting on my behalf.\nThe Company's right to injunctive relief shall be cumulative and in addition to any other remedies provided by law or equity.\nii.\nAlthough the parties believe that the limitations as to time, geographical area and scope of activity contained herein are\nreasonable and do not impose a greater restraint than necessary to protect the goodwill or other business interests of the Company, if\nit is judicially determined otherwise, the limitations shall be reformed to the extent necessary to make them reasonable and not to\nimpose a restraint that is greater than necessary to protect the goodwill or other business interests of the Company.\niii.\nIn any such case, the Company and I agree that the remaining provisions of this Section 4 shall be valid and binding as though\nany invalid or unenforceable provision had not been included.\nAs an Employee. During my employment with the Company, I will not directly or indirectly: (i) Cause any person to cease or\nreduce their services (as an employee or otherwise) to the Company (other than terminating subordinate employees in the course\nof\nmy duties for the Company); (ii) Solicit any Business Partner; (iii) act in any capacity in or with respect to any commercial activity\nwhich competes, or is reasonably likely to compete, with any business that the Company conducts, proposes to conduct or\ndemonstrably anticipates conducting, at any time during my employment with the Company or (iv) enter into in an employment,\nconsulting or other similar relationship with another person or entity that requires a significant time commitment without the prior\nwritten consent of the Company.\nh.\nAfter Termination. For the period of twelve (12) months immediately following my termination of employment with the\nCompany (for any or no reason, whether voluntary or involuntary), I will not directly or indirectly: (i) Cause any person to cease or\nreduce their services (as an employee or otherwise) to the Company; or (ii) unless I am a resident of California (A) Solicit any\nBusiness Partner or (B) engage in any Competitive A ctivities (I) anywhere the Company offers its services or has customers during\nmy employment with the Company or where my use or disclosure of Proprietary Information could materially disadvantage the\nCompany regardless of my physical location; or (II) anywhere the Company offers its services or has customers and where I have\nresponsibility for the Company or (III) anywhere within a fifty (50) mile radius of any physical location I work for the Company. The\nforegoing timeframes shall be increased by the period of time beginning from the commencement of any violation of the foregoing\nprovisions until such time as I have cured such violation.\n5.\nEmployment at Will. I agree that this A greement is not an employment contract for any particular term. I have the right to\nresign and the Company has the right to terminate my employment at will at any time, for any or no reason, with or without cause.\nThis A greement does not purport to set forth all of the terms and conditions of my employment, and as an employee of the\nCompany, I have obligations to the Company which are not described in this A greement However, the terms of this A greement\ngovern over any such terms that are inconsistent with this greement, and supersede the terms of any similar form that I may have\npreviously signed. This greement can only be changed by a subsequent written agreement signed by the Chief Executive Officer or\nPresident of the Company, or an officer designee authorized in writing by the foregoing or the Company's Board of Directors.\n3.\nSurvival. I agree that any change or changes in my employment title, duties, compensation, or equity interest after the signing\nof this A greement shall not affect the validity or scope of this greement. I agree that the terms of this A greement, and any\nobligations I have hereunder, shall continue in effect after termination of my employment regardless of the reason, and whether such\ntermination is voluntary or involuntary, and that the Company is entitled to communicate my obligations under this Agreement to any\nof my potential or future employers. I will provide a copy of this greement to any potential or future employers of mine, so that they\nare aware of my obligations hereunder. This Agreement, and any obligations I have hereunder, also shall be binding upon my heirs,\nexecutors, assigns and administrators, and shall inure to the benefit of the Company, its Affiliates, successors and assigns. This\ngreement and any rights and obligations of the Company hereunder may be freely assigned and transferred by the Company, in\nwhole or part, to any third party\n4.\nMiscellaneous. ny dispute in the meaning, effect or validity of this A greement shall be resolved in accordance with (a) the\nlaws of the State of California if I am an employee located in the State of California, or, alternatively, (b) the laws of the State of\nDelaware, if I am employee located outside of the State of California, in either case, without regard to the conflict of laws provisions\nthereof. The failure of either party to enforce its rights under this A greement at any time for any period shall not be construed as\na\nwaiver of such rights. Unless expressly provided otherwise, each right and remedy in this A greement is in addition to any other right\nor remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy If\none or more provisions of this A greement is held to be illegal or unenforceable under applicable law, such illegal or unenforceable\nportion shall be limited or excluded from this Agreement to the minimum extent required so that this A greement shall otherwise\nremain in full force and effect and enforceable. I acknowledge and agree that any breach or threatened breach of this Agreement will\ncause irreparable harm to\nthe Company for which damages would not be an adequate remedy, and, therefore, the Company is entitled to injunctive relief with respect thereto (without the necessity of posting any bond) in addition to any other remedies.\n[Signature Page Follows]\nI HAVE READ THIS AGREEMENT CAREFULLY AND I UNDERSTAND AND ACCEPT THE OBLIGATIONS THAT IT IMPOSES UPON ME WITHOUT RESERVATION NO PROMISES OR\nREPRESENTATIONS HAVE BEEN MADE TO ME TO INDUCE ME TO SIGN THIS AGREEMENT. I SIGN SIGN THIS THIS AGREEMENT VOLUNTARILY AND FREELY, WITH THE UNDERSTANDING THAT I EITHER\n(1) HAVE RETAINED A COPY OF THIS AGREEMENT OR (2) MAY REQUEST A COPY OF THIS AGREEMENT FROM THE COMPANY AT ANY TIME.\nBOINGO WIRELESS, INC.\nEMPLOYEE\nBy:\nBy:\nName:\nName:\nTitle:\nAddress:\nDated:\nDated:	EX-10 .1 2 a18-18045 _2ex10d1.htm EX-10.1\nExhibit F-2\nEMPLOYEE INVENTIONS AND PROPRIETARY INFORMATION AGREEMENT\nThe following agreement (the “Agreement”) between Boingo Wireless, Inc., a Delaware corporation (the “Company”), and the individual\nidentified on the signature page to this Agreement (“Employee” or “I”) is effective as of the first day of Employee’s employment by\nthe Company and confirms and memorializes the agreement that (regardless of the execution date hereof) the Company and I have\nhad since the commencement of my employment. I acknowledge that this Agreement is a material part of the consideration for my\nemployment or continued employment by the Company. In exchange for the foregoing and for other good and valuable consideration,\nincluding my access to and use of the Company’s Inventions (defined below) and Proprietary Information (defined below) for\nperformance of my employment, training and/or receipt of certain other valuable consideration, the parties agree as follows:\n1.\nNo Conflicts. I have not made, and agree not to make, any agreement, oral or written, that is in conflict with this Agreement\nor my employment with the Company. I will not violate any agreement with, or the rights of, any third party. When acting within the\nscope of my employment (or otherwise on behalf of the Company), I will not use or disclose my own or any third party’s confidential\ninformation or intellectual property (collectively, “Restricted Materials”), except as expressly authorized by the Company in writing.\nFurther, I have not retained anything containing or reflecting any confidential information or intellectual property of a prior employer\nor other third party, whether or not created by me.\n2.\nInventions.\na.\nDefinitions. “Company Interest” means any of the Company’s current and anticipated business, research and development, as\nwell as any product, service, other Invention or Intellectual Property Rights (defined below) that is sold, leased, used, licensed,\nprovided, proposed, under consideration or under development by the Company. “Intellectual Property Rights” means any and all\npatent rights, copyright rights, trademark rights, mask work rights, trade secret rights, sui generis database rights and all other\nintellectual and industrial property rights of any sort throughout the world (including any application therefor and any rights to apply\ntherefor, as well as all rights to pursue remedies for infringement or violation thereof). “Invention” means any idea, concept,\ndiscovery, learning, invention, development, research, technology, work of authorship, trade secret, software, firmware, content,\naudio-visual material, tool, process, technique, know-how, data, plan, device, apparatus, specification, design, prototype, circuit,\nlayout, mask work, algorithm, program, code, documentation or other material or information, tangible or intangible, and all versions,\nmodifications, enhancements and derivative works thereof, whether or not it may be patented, copyrighted, trademarked or otherwise\nprotected.\nb.\nAssignment. The Company shall own, and I hereby assign and agree to assign, all right, title and interest in and to all\nInventions (including all Intellectual Property Rights therein, related thereto or embodied therein) that are collected, made, conceived,\ndeveloped, reduced to practice or set out in any tangible medium of expression or otherwise created, in whole or in part (collectively\n“Created”), by me during the term of my employment with the Company that either (i) arise out of any use of the Company’s\nfacilities, equipment, Proprietary Information or other assets (collectively “Company Assets”) or any research or other activity\nconducted by, for or under the direction of the Company (whether or not conducted (A) at the Company’s facilities; (B) during\nworking hours or (C) using Company Assets), or (ii) are useful with or in or relate directly or indirectly to any Company Interest. I\nwill promptly disclose and provide all of the foregoing Inventions (the “Assigned Inventions”) to the Company. However, the\nforegoing does not purport to assign to the Company (and Assigned Inventions shall not include) any Invention that: (1) by law\n(including, without limitation, the applicable statutory provision for my state of employment set forth in Appendix A, if any) I cannot\nbe required to so assign; or (2) otherwise meets all of the following requirements: (I) the Invention is Created entirely on my own\ntime; (II) the Invention is Created entirely without use of any Company Assets and (III) the Invention is not useful with or related to\nany Company Interest.. Nevertheless, if I believe any Invention Created by me during the term of my employment is not within the\ndefinition of Assigned Inventions, I will nevertheless disclose it to the Company so that the Company may make its assessment.\nc.\nAssurances. I hereby make and agree to make all assignments to the Company necessary to effectuate and accomplish the\nCompany’s ownership in and to all Assigned Inventions. I will further assist the Company, at its expense, to evidence, record and\nperfect such assignments, and to perfect, obtain, maintain, enforce and defend any rights specified to be so owned or assigned. I\nhereby irrevocably designate and appoint the Company and its officers as my agents and attorneys-in-fact, coupled with an interest, to\nact for and on my behalf to execute and file any document and to perform all other lawfully permitted acts to further the purposes of\nthe foregoing with the same legal force and effect as if executed by me.\nd.\nOther Inventions. If (i) I use or disclose any Restricted Materials when acting within the scope of my employment (or\notherwise to or on behalf of the Company) or (ii) any Assigned Invention cannot be fully made, used, reproduced, sold, distributed,\nmodified, commercialized or otherwise exploited (collectively, “Exploited”) without using, misappropriating, infringing or violating\nany Restricted Materials, I hereby grant and agree to grant to the Company a perpetual, irrevocable, worldwide, full paid-up,\nroyalty-free, non-exclusive, assignable, transferable, sublicensable right and license to use, disclose, fully Exploit and exercise all\nrights in such Restricted Materials and all Intellectual Property Rights embodied therein or related thereto. I will not use or disclose\nany Restricted Materials for which I am not fully authorized to grant the foregoing license.\ne.\nMoral Rights. To the extent allowed by applicable law, the terms of this Section 2 include all rights of paternity, integrity,\ndisclosure, withdrawal and any other rights that may be known or referred to as moral rights, artist’s rights, droit moral or the like\n(collectively, “Moral Rights”). To the extent I retain any such Moral Rights under applicable law, I hereby ratify and consent to any\naction that may be taken with respect to such Moral Rights by or authorized by the Company, and agree not to assert any Moral\nRights with respect thereto. I will confirm any such ratification,\nconsent or agreement from time to time as requested by the Company. Furthermore, I agree that notwithstanding any rights of publicity, privacy or otherwise (whether or not statutory) anywhere in the world and without any further\ncompensation, the Company may and is hereby authorized to use my name, likeness and voice in connection with promotion of its business, products and services, and to allow others to do the same.\n3.\nProprietary Information.\na.\nDefinition; Restrictions on Use. I agree that all Assigned Inventions (and all other financial, business, legal and technical\ninformation regarding or relevant to any Company Interest that is not generally publicly known), including the identity of and any\nother information relating to the Company’s employees, Affiliates and Business Partners (as such terms are defined below), that I\ndevelop, learn or obtain during my employment or that are received by or for the Company in confidence, constitute “Proprietary\nInformation.” I will hold in strict confidence and not directly or indirectly disclose or use any Proprietary Information, except as\nrequired within the scope of my employment. My obligation of nondisclosure and nonuse of Proprietary Information under this\nSection shall continue until I can document that it is or becomes readily generally available to the public without restriction through\nno fault of mine (including breach of this Agreement)) or, if a court requires a shorter duration, then the maximum time allowable by\nlaw will control. Furthermore, I understand that this Agreement does not affect my immunity under 18 USC Sections 1833(b) (1) or\n(2), which read as follows:\n(1) An individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a\ntrade secret that (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to\nan attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.\n(2) An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the\ntrade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual\n(A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to\ncourt order.\nb.\nUpon Termination. Upon termination of my employment (for any or no reason, whether voluntary or involuntary), I will\npromptly identify and, as directed by the Company, destroy, delete or return to the Company all items containing or embodying\nProprietary Information (including all original or copies of content, whether in electronic or hard-copy form), except that I may keep\nmy personal copies of (i) my compensation records; (ii) materials distributed to shareholders generally and (iii) this Agreement.\nc.\nCompany Systems. I also recognize and agree that I have no expectation of privacy with respect to the Company’s networks,\ntelecommunications systems or information processing systems (including, without limitation, stored computer files, email messages\nand voicemail messages or other devices (including personal devices) in which Company Proprietary Information resides, is stored or\nis passed through (“Company Systems”), and in order to ensure compliance with work rules and safety concerns, the Company or its\nagents may monitor, at any time and without further notice to me, any Company Systems and any of my activity, files or messages on\nor using any Company Systems, regardless of whether such activity occurs on equipment owned by me or the Company. I further\nagree that any property situated on the Company’s premises and owned, leased or otherwise possessed by the Company, including\ncomputers, computer files, email, voicemail, storage media, filing cabinets or other work areas, is subject to inspection by Company\npersonnel at any time with or without notice. I understand and acknowledge that (A) any such searches or monitoring efforts are not\nformal accusations of wrongdoing but rather part of the procedure of an investigation and (B) refusal to consent to such a search may\nbe grounds for discipline.\n4.\nRestricted Activities. For the purposes of this Section 4, the term “the Company” includes the Company and all other persons\nor entities that control, are controlled by or are under common control with the Company (“Affiliates”) and for whom Employee\nperformed responsibilities or about whom Employee has Proprietary Information.\nf.\nDefinitions. “Competitive Activities” means any direct or indirect non-Company activity (i) that is the same or substantially\nsimilar to Employee’s responsibilities for the Company that relates to, is substantially similar to, or competes with the Company (or\nits demonstrably planned interests) at the time of Employee’s termination from the Company; or (ii) involving the use or disclosure,\nor the likelihood of the use or disclosure, of Proprietary Information. Competitive Activities do not include being a holder of less than\none percent (1%) of the outstanding equity of a public company. “Business Partner” means any past (i.e ., within the twelve (12)\nmonths preceding Employee’s termination from the Company), present or prospective (i.e ., actively pursued by the Company within\nthe twelve (12) months preceding Employee’s termination from the Company) customer, vendor, supplier, distributor or other\nbusiness partner of the Company with whom Employee comes into contact during Employee’s employment with the Company or\nabout whom Employee had knowledge by reason of Employee’s relationship with the Company or because of Employee’s access to\nProprietary Information. “Cause” means to recruit, employ, retain or otherwise solicit, induce or influence, or to attempt to do so\n(provided that if I am a resident of California, “Cause” means to recruit, or otherwise solicit, induce or influence, or to attempt to do\nso). “Solicit”, with respect to Business Partners, means to (A) service, take orders from or solicit the business or patronage of any\nBusiness Partner for Employee or any other person or entity, (B) divert, entice or otherwise take away from the Company the\nbusiness or patronage of any Business Partner, or to attempt to do so, or (C) solicit, induce or encourage any Business Partner to\nterminate or reduce its relationship with the Company.\ng.\nAcknowledgments.\ni.\nI acknowledge and agree that (A) the Company’s business is highly competitive; (B) secrecy of the Proprietary Information is\nof the utmost importance to the Company, and I will learn and use Proprietary Information in the course of performing my work for\nthe Company and (C) my position may require me to establish\ngoodwill with Business Partners and employees on behalf of the Company and such goodwill is extremely important to the Company’s success, and the Company has made substantial investments to develop its business interests and\ngoodwill.\nii.\nI agree that the limitations as to time, geographical area and scope of activity to be restrained in this Section 4 are coextensive\nwith the Company’s footprint and my performance of responsibilities for the Company and are therefore reasonable and not greater\nthan necessary to protect the goodwill or other business interests of the Company. I further agree that such investments are worthy of\nprotection and that the Company’s need for protection afforded by this Section 4 is greater than any hardship I may experience by\ncomplying with its terms.\ni.\nI acknowledge that my violation or attempted violation of the agreements in this Section 4 will cause irreparable damage to\nthe Company or its Affiliates, and I therefore agree that the Company shall be entitled as a matter of right to an injunction out of any\ncourt of competent jurisdiction, restraining any violation or further violation of such agreements by me or others acting on my behalf.\nThe Company’s right to injunctive relief shall be cumulative and in addition to any other remedies provided by law or equity.\nii.\nAlthough the parties believe that the limitations as to time, geographical area and scope of activity contained herein are\nreasonable and do not impose a greater restraint than necessary to protect the goodwill or other business interests of the Company, if\nit is judicially determined otherwise, the limitations shall be reformed to the extent necessary to make them reasonable and not to\nimpose a restraint that is greater than necessary to protect the goodwill or other business interests of the Company.\niii.\nIn any such case, the Company and I agree that the remaining provisions of this Section 4 shall be valid and binding as though\nany invalid or unenforceable provision had not been included.\nc.\nAs an Employee. During my employment with the Company, I will not directly or indirectly: (i) Cause any person to cease or\nreduce their services (as an employee or otherwise) to the Company (other than terminating subordinate employees in the course of\nmy duties for the Company); (ii) Solicit any Business Partner; (iii) act in any capacity in or with respect to any commercial activity\nwhich competes, or is reasonably likely to compete, with any business that the Company conducts, proposes to conduct or\ndemonstrably anticipates conducting, at any time during my employment with the Company or (iv) enter into in an employment,\nconsulting or other similar relationship with another person or entity that requires a significant time commitment without the prior\nwritten consent of the Company.\nh.\nAfter Termination. For the period of twelve (12) months immediately following my termination of employment with the\nCompany (for any or no reason, whether voluntary or involuntary), I will not directly or indirectly: (i) Cause any person to cease or\nreduce their services (as an employee or otherwise) to the Company; or (ii) unless I am a resident of California (A) Solicit any\nBusiness Partner or (B) engage in any Competitive Activities (I) anywhere the Company offers its services or has customers during\nmy employment with the Company or where my use or disclosure of Proprietary Information could materially disadvantage the\nCompany regardless of my physical location; or (II) anywhere the Company offers its services or has customers and where I have\nresponsibility for the Company or (III) anywhere within a fifty (50) mile radius of any physical location I work for the Company. The\nforegoing timeframes shall be increased by the period of time beginning from the commencement of any violation of the foregoing\nprovisions until such time as I have cured such violation.\n5.\nEmployment at Will. I agree that this Agreement is not an employment contract for any particular term. I have the right to\nresign and the Company has the right to terminate my employment at will, at any time, for any or no reason, with or without cause.\nThis Agreement does not purport to set forth all of the terms and conditions of my employment, and as an employee of the\nCompany, I have obligations to the Company which are not described in this Agreement. However, the terms of this Agreement\ngovern over any such terms that are inconsistent with this Agreement, and supersede the terms of any similar form that I may have\npreviously signed. This Agreement can only be changed by a subsequent written agreement signed by the Chief Executive Officer or\nPresident of the Company, or an officer designee authorized in writing by the foregoing or the Company’s Board of Directors.\n3.\nSurvival. I agree that any change or changes in my employment title, duties, compensation, or equity interest after the signing\nof this Agreement shall not affect the validity or scope of this Agreement. I agree that the terms of this Agreement, and any\nobligations I have hereunder, shall continue in effect after termination of my employment, regardless of the reason, and whether such\ntermination is voluntary or involuntary, and that the Company is entitled to communicate my obligations under this Agreement to any\nof my potential or future employers. I will provide a copy of this Agreement to any potential or future employers of mine, so that they\nare aware of my obligations hereunder. This Agreement, and any obligations I have hereunder, also shall be binding upon my heirs,\nexecutors, assigns and administrators, and shall inure to the benefit of the Company, its Affiliates, successors and assigns. This\nAgreement and any rights and obligations of the Company hereunder may be freely assigned and transferred by the Company, in\nwhole or part, to any third party.\n4.\nMiscellaneous. Any dispute in the meaning, effect or validity of this Agreement shall be resolved in accordance with (a) the\nlaws of the State of California if I am an employee located in the State of California, or, alternatively, (b) the laws of the State of\nDelaware, if I am employee located outside of the State of California, in either case, without regard to the conflict of laws provisions\nthereof. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a\nwaiver of such rights. Unless expressly provided otherwise, each right and remedy in this Agreement is in addition to any other right\nor remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If\none or more provisions of this Agreement is held to be illegal or unenforceable under applicable law, such illegal or unenforceable\nportion shall be limited or excluded from this Agreement to the minimum extent required so that this Agreement shall otherwise\nremain in full force and effect and enforceable. I acknowledge and agree that any breach or threatened breach of this Agreement will\ncause irreparable harm to\nthe Company for which damages would not be an adequate remedy, and, therefore, the Company is entitled to injunctive relief with respect thereto (without the necessity of posting any bond) in addition to any other remedies.\n[Signature Page Follows]\nI HAVE READ THIS AGREEMENT CAREFULLY AND I UNDERSTAND AND ACCEPT THE OBLIGATIONS THAT IT IMPOSES UPON ME WITHOUT RESERVATION. NO PROMISES OR\nREPRESENTATIONS HAVE BEEN MADE TO ME TO INDUCE ME TO SIGN THIS AGREEMENT. I SIGN THIS AGREEMENT VOLUNTARILY AND FREELY , WITH THE UNDERSTANDING THAT I EITHER\n(1) HAVE RETAINED A COPY OF THIS AGREEMENT OR (2) MAY REQUEST A COPY OF THIS AGREEMENT FROM THE COMPANY AT ANY TIME.\nBOINGO WIRELESS, INC .\nEMPLOYEE\nBy:\nBy:\nName:\nName:\nTitle:\nAddress:\nDated:\nDated:
+4d4100dcc541a7bedcd3e72a5abeba60.pdf	effective_date jurisdiction party term	EX-10.13 3 dex1013.htm NON-DISCLOSURE, NON-SOLICITATION & NON-COMPETITION AGREEMENT\nDATED 11/16/2009\nExhibit 10.13\nLOGO\nNON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION\nIn consideration of your promotion to EVP – Direct and continued employment with or provision of services to J. Crew Group, Inc. and its\naffiliates (collectively, the “Company”) and for other good and valuable consideration described below, receipt of which is hereby acknowledged,\nyou agree as follows:\n1. Agreement Not to Disclose Confidential Information. In the course of your employment with or provision of services to the Company,\nyou have and will have acquired and have had access to confidential or proprietary information about the Company, including but not limited to,\ntrade secrets, methods, models, passwords, access to computer files, financial information and records, computer software programs, agreements\nand/or contracts between the Company and its vendors and suppliers, the Company’s merchandising, marketing and/or creative policies, practices,\nconcepts, strategies, and methods of operations, inventory, pricing and price change strategies, possible new product lines, future merchandise\ndesigns, patterns, fabrication or fit information, internal policies, pricing policies and procedures, cost estimates, employee lists, training manuals,\nfinancial or business projections, unannounced financial data such as sales, earnings or capital requirements, possible mergers, acquisitions or joint\nventures and information about or received from vendors and other companies with which the Company does business. The foregoing shall be\ncollectively referred to as “Confidential Information.” You are aware that the Confidential Information is not readily available to the public. You\nagree that during your employment or provision of services and for a period of three (3) years thereafter, you will keep confidential and not disclose\nthe Confidential Information to anyone or use it for your own benefit or for the benefit of others, except in performing your duties as our employee\nor agent. You agree that this restriction shall apply whether or not any such information is marked “confidential.”\nAll memoranda, disks, files, notes, records or other documents, whether in electronic form or hard copy (collectively, the “material”) compiled\nby you or made available to you during your employment (whether or not the material contains confidential information) are the property of the\nCompany and shall be delivered to the Company on the termination of your employment or at any other time upon request. Except in connection\nwith your employment, you agree that you will not make or retain copies or excerpts of the material.\n2. Agreement Not to Engage in Unfair Competition. You agree that your position with the Company requires and will continue to require\nthe performance of services which are special, unique, extraordinary and of an intellectual and/or artistic character and places you in a position of\nconfidence and trust with the Company. You further acknowledge that the rendering of services to the Company necessarily requires the disclosure\nof confidential information and trade secrets of the Company. You agree that in the course of your employment with or rendering of services to the\nCompany, you will develop a personal acquaintanceship and relationship with the vendors and other business associates of the Company and\nknowledge of their affairs and requirements. Consequently, you agree that it is reasonable and necessary for the protection of\n770 Broadway New York NY 10003 Tel 212 209 2500 Fax 212 209 2666\nthe goodwill and business of the Company that you make the covenants contained herein. Accordingly, you agree that while you are in the\nCompany’s employ and for the period of twelve months after the termination of your employment, for any reason whatsoever, you shall not directly\nor indirectly, except on behalf of the Company:\n(a) render services to or accept employment, either directly as an employee or owner, or indirectly, as a paid or unpaid consultant or\nindependent contractor of any entity identified on Schedule A hereto (as may be updated by the Company from time to time); or\n(b) employ as an employee or retain as a consultant any person who is then or at any time during the preceding twelve months was an\nemployee of or consultant to the Company, or persuade or attempt to persuade any employee of or consultant to the Company to leave the\nemploy of the Company or to become employed as an employee or retained as a consultant by anyone other than the Company.\n3. Annual Bonuses and Signing Bonus. As additional consideration for you entering into this Agreement and agreeing to the covenants\ncontained herein, the Company will provide you with the following:\n(a) You will continue to have the opportunity to earn an annual bonus(es) under the Company’s bonus plan. Starting with FY 2010,\nprovided that both the Company achieves certain performance objectives (which will be determined by the Company in each fiscal year in\naccordance with the Company’s bonus plan) and you achieve your performance goals, you will be eligible to receive an annual bonus with a\ntarget of 50% of your base salary, up to a maximum bonus of 100% of your base salary. Such annual bonus(es) will be paid only if you are\nactively employed by the Company and not in breach of this Agreement on the date(s) of actual payment(s).\n(b) A one-time bonus payment of $50,000 (less all authorized or required payroll withholdings and payroll deductions) (“Bonus\nPayment”) payable within thirty days after you execute and return this Agreement; provided that you will be required to immediately pay back\na pro-rata portion of such Bonus Payment in the event you voluntarily terminate your employment with the Company or your employment is\nterminated by the Company for Cause, as defined below, within one year after the date of this Agreement. The pro-ration shall be determined\nbased on the number of full months having elapsed from the date of this Agreement to your last date of employment, divided by twelve.\n(c) Subject to the approval of the Compensation Committee of the Board of Directors, a restricted stock grant of 10,000 shares of the\nCompany’s common stock (the “Restricted Stock Grant”). The Restricted Stock Grant shall vest 50% on the third anniversary of the grant date\nand 50% on the fourth anniversary of the grant date. The Restricted Stock Grant shall be subject to and governed by the terms and conditions\nof the Company’s 2008 Amended and Restated Equity Incentive Plan and shall be evidenced by a separate restricted stock agreement.\n2\n4. Termination Without Cause. Should your employment be (a) terminated by the Company without “Cause,” as defined below; and (b) the\nCompany does not consent to waive any of the post-employment restrictions contained in paragraph 2(a) above, and (c) you execute and deliver to\nCompany an irrevocable Separation Agreement and Release, within 60 days after your termination of employment (and any payment that constitutes\nnon-qualified deferred compensation under Section 409 A of the Internal Revenue Code of 1986, as amended and any regulations thereunder (the\n“Code”) that otherwise would be made within such 60-day period pursuant to this paragraph shall be paid at the expiration of such 60-day period), in\na form acceptable to the Company, the Company will pay you a severance payment equal to (i) a lump sum amount equal to the product of (x) the\nannual bonus, if any, that you would have earned based on the actual achievement of the applicable performance objectives in the fiscal year which\nincludes the date of your termination of employment had your employment not been terminated and (y) a fraction, the numerator of which is the\nnumber of days in the fiscal year that includes the date of your termination through the date of such termination and the denominator of which is\n365, payable when bonuses are generally paid to employees of the Company, but in no event later than the 15 day of the third month following the\nend of the year with respect to which such bonus was earned; (ii) twelve (12) months of your then-current base salary, to be paid, less all applicable\ndeductions, according to the Company’s normal payroll practices for a period coextensive with the restricted period (twelve months); and (iii) during\nthe restricted period, reimbursement for out-of-pocket COBRA payments paid by you to continue your group health benefits, provided you submit\nrelevant supporting documentation to the Company evidencing such payments. Notwithstanding anything herein to the contrary, however, your right\nto receive the foregoing payments (collectively, the “Salary Continuation Payments”) shall terminate effective immediately upon the date that you\nbecome employed by another entity as an employee, consultant or otherwise, and you agree to notify the Executive Vice-President of Human\nResources in writing prior to the effective date of any such employment. If you fail to so notify the Executive Vice-President of Human Resources,\n(a) you will forfeit your right to receive the Salary Continuation Payments described above (to the extent the Salary Continuation Payments were not\ntheretofore paid) and (b) the Company shall be entitled to recover any Salary Continuation Payments already made to you or on your behalf.\nNotwithstanding the foregoing paragraph, in the event your employment is terminated by the Company without Cause, and you are a\n“specified employee” within the meaning of Section 409A of Code (as determined in accordance with the methodology established by the Company\nas in effect on the date of your termination), and the Salary Continuation Payments described above to be paid within the first six months following\nsuch date (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A -l(b)(9)(iii)(A) (the “Limit”), then: (i) any\nportion of the Salary Continuation Payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the\ntimes set forth above; (ii) any portion of the Salary Continuation Payments that are a “short-term deferral” within the meaning of Treas. Regs.\nSection 1.409A-l(b)(4)(i) shall be paid at the times set forth above; (iii) any portion of the Salary Continuation Payments that exceeds the Limit and\nare not a “short-term deferral” (and would have been payable during the Initial Payment Period but for the Limit) shall be paid on the first business\nday after the six-month anniversary of the Termination Date or, if earlier, on the date of your death; and (iv) any portion of the Salary Continuation\nPayments that are payable after the Initial Payment Period shall be paid at the times set forth above. It is intended that each\n3\nth\ninstallment, if any, of the payments and benefits, if any, provided to you under this Section 3 shall be treated as a separate “payment” for purposes of\nSection 409A of the Code.\nFor purposes of this agreement, “Cause” means (i) you have acted in bad faith and to the detriment of the Company; (ii) you have refused or\nfailed to act in accordance with any specific lawful direction or order of supervisory personnel; (iii) you have exhibited in regard to your\nemployment unfitness or unavailability for service, misconduct, dishonesty, habitual neglect, incompetence, or have committed an act of\nembezzlement, fraud or theft with respect to the property of the Company; (iv) you have abused alcohol or drugs on the job or in a manner which\naffects your job; (v) you have been found guilty of or have plead nolo contendere to the commission of a crime involving dishonesty, breach of trust,\nor physical or emotional harm to any person; (vi) you have breached any material term of this Agreement or of any Company policy; and/or\n(vii) your death or disability (such that you cannot perform the essential functions of the job, with or without accommodation). No payment will be\nrequired if the Company elects in its sole discretion to waive the post-termination restrictions on your employment contained in paragraph 2(a)\nherein or if the conditions set forth in this paragraph are otherwise not met.\n5. Termination With Cause or Resignation of Employment. If the Company terminates your employment and such termination is for\n“Cause,” as defined above, or if you resign your employment for any reason, then the Company shall pay you all wages due through the termination\ndate. In the event of termination for Cause or your resignation, the Company will not pay any severance, and the restrictions contained in paragraph\n2(a) above will remain in full force and effect unless waived by the Company.\n6. Term. The term of this agreement shall be three (3) years, beginning on the date signed by you, as set forth below, and terminating on the\nthird anniversary of such date. At the Company’s request upon or in advance of the termination of this agreement, you will enter into discussions to\nextend the terms of this agreement or negotiate in good faith an agreement of similar effect.\nNotwithstanding the foregoing, in the event that your employment terminates prior to the third anniversary, you shall remain subject to the\npost-termination restrictions contained in Sections 1 and 2 hereof and shall be entitled to the severance payment contained in Section 4 hereof\nprovided that the terms and conditions applicable thereto have been satisfied.\n7. Injunctive Relief. You agree that any actual or threatened breach by you of the covenants set forth in paragraphs 1 and 2 of this agreement\nwould result in irreparable harm to the Company for which monetary damages alone would be an insufficient remedy. Thus, although nothing in this\nparagraph will prohibit the Company from pursuing any remedies available to it against you under applicable law (which shall be cumulative with\nthose remedies set forth herein), you specifically agree that, in the event of any threatened or actual breach of this agreement by you, the Company\nshall be entitled to a temporary restraining order and, thereafter, a preliminary and permanent injunction and other equitable relief including, without\nlimitation, an equitable accounting of earnings, profits, and other benefits, from a court of competent jurisdiction, as well as reimbursement from you\nfor any attorneys’ fees and other costs incurred by the Company in obtaining such relief. No specification in this agreement of any legal or equitable\nremedy shall be construed as a waiver or prohibition against pursuing any\n4\nother legal or equitable remedies in the event of a threatened or actual breach of this agreement by you.\n8. Severability. If any provision of this agreement, or any part thereof, is found to be invalid or unenforceable, the same shall not affect the\nremaining provisions, which shall be given full effect, without regard to the invalid portions. Moreover, if any one or more of the provisions\ncontained in this agreement shall be held to be excessively broad as to duration, scope, activity or subject, such provisions shall be construed by\nlimiting and reducing them so as to be enforceable to the maximum extent with applicable law.\n9. At-Will Employment. This agreement is limited to the foregoing terms and shall not be construed to create any relationship between you\nand the Company other than at-will employment for all purposes. This agreement supersedes all agreements concerning the subject matter hereof.\n10. Governing Law. The terms of this agreement and all rights and obligations of the parties thereto including its enforcement shall be\ninterpreted and governed by the laws of the state of New York.\n11. Section 409A of the Code. If any provision of this agreement (or any award of compensation or benefits provided under this agreement)\nwould cause you to incur any additional tax or interest under Section 409 A of the Code, the Company and you shall reasonably cooperate to reform\nsuch provision to comply with 409A and the Company agrees to maintain, to the maximum extent practicable without violating 409A of the Code,\nthe original intent and economic benefit to you of the applicable provision; provided that nothing herein shall require the Company to provide you\nwith any gross-up for any tax, interest or penalty incurred by you under Section 409A of the Code.\nAGREED TO AND ACCEPTED:\nSignature: /s/ Trish Donnelly\nPrint Name: Trish Donnelly\nTrish Donnelly\nDate:\n11/16/2009\n5\nSCHEDULE A TO NON-DISCLOSURE,\nNON-SOLICITATION AND NON -COMPETITION AGREEMENT\nUnless waived in writing by the Company, the post-termination restrictions on employment contained in paragraph 2(a) above shall apply to\nemployment with the following entities, as well as their parent and subsidiary companies:\nAeropostale\nAbercrombie & Fitch brands\nAmerican Eagle brands\nAnn Taylor\nCoach\nGap brands\nKate Spade\nLimited brands\nLiz Claiborne Brands\nLVMH\nRalph Lauren brands\nTheory\nTommy Hilfiger\nTory Burch\nUrban Outfitters brands\nAny retail apparel start-up operated by one of the above companies\n6	EX-10.13 3 dex1013.htm NON-DISCLOSURE, NON-SOLICITATION & NON-COMPETITION AGREEMENT\nDATED 11/16/2009\nExhibit 10.13\n».LOGO\nNON-DISCL.OSURE, NON-SOLICITATION AND NON-COMPETITION\nIn consideration of your promotion to EVP — Direct and continued employment with or provision of services to J. Crew Group, Inc. and its\naffiliates (collectively, the “Company”) and for other good and valuable consideration described below, receipt of which is hereby acknowledged,\nyou agree as follows:\n1. Agreement Not to Disclose Confidential Information. In the course of your employment with or provision of services to the Company,\nyou have and will have acquired and have had access to confidential or proprietary information about the Company, including but not limited to,\ntrade secrets, methods, models, passwords, access to computer files, financial information and records, computer software programs, agreements\nand/or contracts between the Company and its vendors and suppliers, the Company’s merchandising, marketing and/or creative policies, practices,\nconcepts, strategies, and methods of operations, inventory, pricing and price change strategies, possible new product lines, future merchandise\ndesigns, patterns, fabrication or fit information, internal policies, pricing policies and procedures, cost estimates, employee lists, training manuals,\nfinancial or business projections, unannounced financial data such as sales, earnings or capital requirements, possible mergers, acquisitions or joint\nventures and information about or received from vendors and other companies with which the Company does business. The foregoing shall be\ncollectively referred to as “Confidential Information.” You are aware that the Confidential Information is not readily available to the public. You\nagree that during your employment or provision of services and for a period of three (3) years thereafter, you will keep confidential and not disclose\nthe Confidential Information to anyone or use it for your own benefit or for the benefit of others, except in performing your duties as our employee\nor agent. You agree that this restriction shall apply whether or not any such information is marked “confidential.”\nAll memoranda, disks, files, notes, records or other documents, whether in electronic form or hard copy (collectively, the “material”) compiled\nby you or made available to you during your employment (whether or not the material contains confidential information) are the property of the\nCompany and shall be delivered to the Company on the termination of your employment or at any other time upon request. Except in connection\nwith your employment, you agree that you will not make or retain copies or excerpts of the material.\n2. Agreement Not to Engage in Unfair Competition. You agree that your position with the Company requires and will continue to require\nthe performance of services which are special, unique, extraordinary and of an intellectual and/or artistic character and places you in a position of\nconfidence and trust with the Company. You further acknowledge that the rendering of services to the Company necessarily requires the disclosure\nof confidential information and trade secrets of the Company. You agree that in the course of your employment with or rendering of services to the\nCompany, you will develop a personal acquaintanceship and relationship with the vendors and other business associates of the Company and\nknowledge of their affairs and requirements. Consequently, you agree that it is reasonable and necessary for the protection of\n770 Broadway New York NY 10003 Tel 212 209 2500 Fax 212 209 2666\nthe goodwill and business of the Company that you make the covenants contained herein. Accordingly, you agree that while you are in the\nCompany’s employ and for the period of twelve months after the termination of your employment, for any reason whatsoever, you shall not directly\nor indirectly, except on behalf of the Company:\n(a) render services to or accept employment, either directly as an employee or owner, or indirectly, as a paid or unpaid consultant or\nindependent contractor of any entity identified on Schedule A hereto (as may be updated by the Company from time to time); or\n(b) employ as an employee or retain as a consultant any person who is then or at any time during the preceding twelve months was an\nemployee of or consultant to the Company, or persuade or attempt to persuade any employee of or consultant to the Company to leave the\nemploy of the Company or to become employed as an employee or retained as a consultant by anyone other than the Company.\n3. Annual Bonuses and Signing Bonus. As additional consideration for you entering into this Agreement and agreeing to the covenants\ncontained herein, the Company will provide you with the following:\n(a) You will continue to have the opportunity to earn an annual bonus(es) under the Company’s bonus plan. Starting with FY 2010,\nprovided that both the Company achieves certain performance objectives (which will be determined by the Company in each fiscal year in\naccordance with the Company’s bonus plan) and you achieve your performance goals, you will be eligible to receive an annual bonus with a\ntarget of 50% of your base salary, up to a maximum bonus of 100% of your base salary. Such annual bonus(es) will be paid only if you are\nactively employed by the Company and not in breach of this Agreement on the date(s) of actual payment(s).\n(b) A one-time bonus payment of $50,000 (less all authorized or required payroll withholdings and payroll deductions) (“Bonus\nPayment”) payable within thirty days after you execute and return this Agreement; provided that you will be required to immediately pay back\na pro-rata portion of such Bonus Payment in the event you voluntarily terminate your employment with the Company or your employment is\nterminated by the Company for Cause, as defined below, within one year after the date of this Agreement. The pro-ration shall be determined\nbased on the number of full months having elapsed from the date of this Agreement to your last date of employment, divided by twelve.\n(c) Subject to the approval of the Compensation Committee of the Board of Directors, a restricted stock grant of 10,000 shares of the\nCompany’s common stock (the “Restricted Stock Grant”). The Restricted Stock Grant shall vest 50% on the third anniversary of the grant date\nand 50% on the fourth anniversary of the grant date. The Restricted Stock Grant shall be subject to and governed by the terms and conditions\nof the Company’s 2008 Amended and Restated Equity Incentive Plan and shall be evidenced by a separate restricted stock agreement.\n2\n4. Termination Without Cause. Should your employment be (a) terminated by the Company without “Cause,” as defined below; and (b) the\nCompany does not consent to waive any of the post-employment restrictions contained in paragraph 2(a) above, and (c) you execute and deliver to\nCompany an irrevocable Separation Agreement and Release, within 60 days after your termination of employment (and any payment that constitutes\nnon-qualified deferred compensation under Section 409 A of the Internal Revenue Code of 1986, as amended and any regulations thereunder (the\n“Code”) that otherwise would be made within such 60-day period pursuant to this paragraph shall be paid at the expiration of such 60-day period), in\na form acceptable to the Company, the Company will pay you a severance payment equal to (i) a lump sum amount equal to the product of (x) the\nannual bonus, if any, that you would have earned based on the actual achievement of the applicable performance objectives in the fiscal year which\nincludes the date of your termination of employment had your employment not been terminated and (y) a fraction, the numerator of which is the\nnumber of days in the fiscal year that includes the date of your termination through the date of such termination and the denominator of which is\n365, payable when bonuses are generally paid to employees of the Company, but in no event later than the 15 day of the third month following the\nend of the year with respect to which such bonus was earned; (ii) twelve (12) months of your then-current base salary, to be paid, less all applicable\ndeductions, according to the Company’s normal payroll practices for a period coextensive with the restricted period (twelve months); and (iii) during\nthe restricted period, reimbursement for out-of-pocket COBRA payments paid by you to continue your group health benefits, provided you submit\nrelevant supporting documentation to the Company evidencing such payments. Notwithstanding anything herein to the contrary, however, your right\nto receive the foregoing payments (collectively, the “Salary Continuation Payments”) shall terminate effective immediately upon the date that you\nbecome employed by another entity as an employee, consultant or otherwise, and you agree to notify the Executive Vice-President of Human\nResources in writing prior to the effective date of any such employment. If you fail to so notify the Executive Vice-President of Human Resources,\n(a) you will forfeit your right to receive the Salary Continuation Payments described above (to the extent the Salary Continuation Payments were not\ntheretofore paid) and (b) the Company shall be entitled to recover any Salary Continuation Payments already made to you or on your behalf.\nNotwithstanding the foregoing paragraph, in the event your employment is terminated by the Company without Cause, and you are a\n“specified employee” within the meaning of Section 409A of Code (as determined in accordance with the methodology established by the Company\nas in effect on the date of your termination), and the Salary Continuation Payments described above to be paid within the first six months following\nsuch date (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the “Limit”), then: (i) any\nportion of the Salary Continuation Payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the\ntimes set forth above; (ii) any portion of the Salary Continuation Payments that are a “short-term deferral” within the meaning of Treas. Regs.\nSection 1.409A-1(b)(4)(i) shall be paid at the times set forth above; (iii) any portion of the Salary Continuation Payments that exceeds the Limit and\nare not a “short-term deferral” (and would have been payable during the Initial Payment Period but for the Limit) shall be paid on the first business\nday after the six-month anniversary of the Termination Date or, if earlier, on the date of your death; and (iv) any portion of the Salary Continuation\nPayments that are payable after the Initial Payment Period shall be paid at the times set forth above. It is intended that each\n \n3\ninstallment, if any, of the payments and benefits, if any, provided to you under this Section 3 shall be treated as a separate “payment” for purposes of\nSection 409A of the Code.\nFor purposes of this agreement, “Cause” means (i) you have acted in bad faith and to the detriment of the Company; (ii) you have refused or\nfailed to act in accordance with any specific lawful direction or order of supervisory personnel; (iii) you have exhibited in regard to your\nemployment unfitness or unavailability for service, misconduct, dishonesty, habitual neglect, incompetence, or have committed an act of\nembezzlement, fraud or theft with respect to the property of the Company; (iv) you have abused alcohol or drugs on the job or in a manner which\naffects your job; (v) you have been found guilty of or have plead nolo contendere to the commission of a crime involving dishonesty, breach of trust,\nor physical or emotional harm to any person; (vi) you have breached any material term of this Agreement or of any Company policy; and/or\n(vii) your death or disability (such that you cannot perform the essential functions of the job, with or without accommodation). No payment will be\nrequired if the Company elects in its sole discretion to waive the post-termination restrictions on your employment contained in paragraph 2(a)\nherein or if the conditions set forth in this paragraph are otherwise not met.\n5. Termination With Cause or Resignation of Employment. If the Company terminates your employment and such termination is for\n“Cause,” as defined above, or if you resign your employment for any reason, then the Company shall pay you all wages due through the termination\ndate. In the event of termination for Cause or your resignation, the Company will not pay any severance, and the restrictions contained in paragraph\n2(a) above will remain in full force and effect unless waived by the Company.\n6. Term. The term of this agreement shall be three (3) years, beginning on the date signed by you, as set forth below, and terminating on the\nthird anniversary of such date. At the Company’s request upon or in advance of the termination of this agreement, you will enter into discussions to\nextend the terms of this agreement or negotiate in good faith an agreement of similar effect.\nNotwithstanding the foregoing, in the event that your employment terminates prior to the third anniversary, you shall remain subject to the\npost-termination restrictions contained in Sections 1 and 2 hereof and shall be entitled to the severance payment contained in Section 4 hereof\nprovided that the terms and conditions applicable thereto have been satisfied.\n7. Injunctive Relief. You agree that any actual or threatened breach by you of the covenants set forth in paragraphs 1 and 2 of this agreement\nwould result in irreparable harm to the Company for which monetary damages alone would be an insufficient remedy. Thus, although nothing in this\nparagraph will prohibit the Company from pursuing any remedies available to it against you under applicable law (which shall be cumulative with\nthose remedies set forth herein), you specifically agree that, in the event of any threatened or actual breach of this agreement by you, the Company\nshall be entitled to a temporary restraining order and, thereafter, a preliminary and permanent injunction and other equitable relief including, without\nlimitation, an equitable accounting of earnings, profits, and other benefits, from a court of competent jurisdiction, as well as reimbursement from you\nfor any attorneys’ fees and other costs incurred by the Company in obtaining such relief. No specification in this agreement of any legal or equitable\nremedy shall be construed as a waiver or prohibition against pursuing any\n4\nother legal or equitable remedies in the event of a threatened or actual breach of this agreement by you.\n8. Severability. If any provision of this agreement, or any part thereof, is found to be invalid or unenforceable, the same shall not affect the\nremaining provisions, which shall be given full effect, without regard to the invalid portions. Moreover, if any one or more of the provisions\ncontained in this agreement shall be held to be excessively broad as to duration, scope, activity or subject, such provisions shall be construed by\nlimiting and reducing them so as to be enforceable to the maximum extent with applicable law.\n9. At-Will Employment. This agreement is limited to the foregoing terms and shall not be construed to create any relationship between you\nand the Company other than at-will employment for all purposes. This agreement supersedes all agreements concerning the subject matter hereof.\n10. Governing Law. The terms of this agreement and all rights and obligations of the parties thereto including its enforcement shall be\ninterpreted and governed by the laws of the state of New York.\n11. Section 409A of the Code. If any provision of this agreement (or any award of compensation or benefits provided under this agreement)\nwould cause you to incur any additional tax or interest under Section 409 A of the Code, the Company and you shall reasonably cooperate to reform\nsuch provision to comply with 409A and the Company agrees to maintain, to the maximum extent practicable without violating 409A of the Code,\nthe original intent and economic benefit to you of the applicable provision; provided that nothing herein shall require the Company to provide you\nwith any gross-up for any tax, interest or penalty incurred by you under Section 409A of the Code.\nAGREED TO AND ACCEPTED:\nSignature: /s/ Trish Donnelly Print Name: Trish Donnelly\nTrish Donnelly\nDate: 11/16/2009\nSCHEDULE A TO NON-DISCLOSURE,\nNON-SOLICITATION AND NON-COMPETITION AGREEMENT\nUnless waived in writing by the Company, the post-termination restrictions on employment contained in paragraph 2(a) above shall apply to\nemployment with the following entities, as well as their parent and subsidiary companies:\nAeropostale\nAbercrombie & Fitch brands\nAmerican Eagle brands\nAnn Taylor\nCoach\nGap brands\nKate Spade\nLimited brands\nLiz Claiborne Brands\nLVMH\nRalph Lauren brands\nTheory\nTommy Hilfiger\nTory Burch\nUrban Outfitters brands\nAny retail apparel start-up operated by one of the above companies	EX-10.13 3 lex1013.htm NON-DISCLOSURE, NON-SOLICITATION & NON-COMPETITION AGREEMENT\nDATED 11/16/2009\nExhibit 10.13\nLOGO\nNON-DISCLOSURE,. NON-SOLICITATION AND NON-COMPETITION\nIn consideration of your promotion to EVP Direct and continued employment with or provision of services to J. Crew Group, Inc. and its\naffiliates (collectively, the "Company") and for other good and valuable consideration described below, receipt of which is hereby acknowledged,\nyou agree as follows:\n1. Agreement Not to Disclose Confidential Information. In the course of your employment with or provision of services to the Company,\nyou have and will have acquired and have had access to confidential or proprietary information about the Company, including but not limited to,\ntrade secrets, methods, models, passwords, access to computer files, financial information and records, computer software programs, agreements\nand/or contracts between the Company and its vendors and suppliers, the Company's merchandising, marketing and/or creative policies, practices,\nconcepts, strategies, and methods of operations, inventory, pricing and price change strategies, possible new product lines, future merchandise\ndesigns, patterns, fabrication or fit information, internal policies, pricing policies and procedures, cost estimates, employee lists, training manuals,\nfinancial or business projections, unannounced financial data such as sales, earnings or capital requirements, possible mergers, acquisitions or joint\nventures and information about or received from vendors and other companies with which the Company does business. The foregoing shall\nbe\ncollectively referred to as "Confidential Information." You are aware that the Confidential Information is not readily available to the public. You\nagree that during your employment or provision of services and for a period of three (3) years thereafter, you will keep confidential and not disclose\nthe Confidential Information to anyone or use it for your own benefit or for the benefit of others, except in performing your duties as our employee\nor agent. You agree that this restriction shall apply whether or not any such information is marked "confidential."\nAll memoranda, disks, files, notes, records or other documents, whether in electronic form or hard copy (collectively, the "material") compiled\nby\nyou or made available to you during your employment (whether or not the material contains confidential information) are the property of the\nCompany and shall be delivered to the Company on the termination of your employment or at any other time upon request. Except in connection\nwith your employment, you agree that you will not make or retain copies or excerpts of the material.\n2.\nAgreement Not to Engage in Unfair Competition. You agree that your position with the Company requires and will continue to require\nthe performance of services which are special, unique, extraordinary and of an intellectual and/or artistic character and places you in a position of\nconfidence and trust with the Company. You further acknowledge that the rendering of services to the Company necessarily requires the disclosure\nof confidential information and trade secrets of the Company. You agree that in the course of your employment with or rendering of services to the\nCompany, you will develop a personal acquaintanceship and relationship with the vendors and other business associates of the Company and\nknowledge of their affairs and requirements. Consequently, you agree that it is reasonable and necessary for the protection of\n770 Broadway New York NY 10003 Tel 212 209 2500 Fax 212 209 2666\nthe goodwill and business of the Company that you make the covenants contained herein. Accordingly, you agree that while you are in the\nCompany's employ and for the period of twelve months after the termination of your employment, for any reason whatsoever, you shall not directly\nor indirectly, except on behalf of the Company:\n(a) render services to or accept employment, either directly as an employee or owner, or indirectly, as a paid or unpaid consultant or\nindependent contractor of any entity identified on Schedule A hereto (as may be updated by the Company from time to time);\nor\n(b) employ as an employee or retain as a consultant any person who is then or at any time during the preceding twelve months was an\nemployee of or consultant to the Company, or persuade or attempt to persuade any employee of or consultant to the Company to leave the\nemploy of the Company or to become employed as an employee or retained as a consultant by anyone other than the Company.\n3. Annual Bonuses and Signing Bonus. As additional consideration for you entering into this Agreement and agreeing to the covenants\ncontained herein, the Company will provide you with the following:\n(a) You will continue to have the opportunity to earn an annual bonus(es) under the Company's bonus plan. Starting with FY 2010,\nprovided that both the Company achieves certain performance objectives (which will be determined by the Company in each fiscal year in\naccordance with the Company's bonus plan) and you achieve your performance goals, you will be eligible to receive an annual bonus with\na\ntarget of 50% of your base salary, up to a maximum bonus of 100% of your base salary. Such annual bonus(es) will be paid only if you are\nactively employed by the Company and not in breach of this Agreement on the date(s) of actual payment(s).\n(b) A one-time bonus payment of $50,000 (less all authorized or required payroll withholdings and payroll deductions) ("Bonus\nPayment") payable within thirty days after you execute and return this Agreement; provided that you will be required to immediately pay back\na\npro-rata\nportion\nof\nsuch\nBonus\nPayment\nin\nthe\nevent\nyou\nvoluntarily\nterminate\nyour\nemployment\nwith\nthe\nCompany\nor\nyour\nemployment\nis\nterminated by the Company for Cause, as defined below, within one year after the date of this Agreement. The pro-ration shall be determined\nbased on the number of full months having elapsed from the date of this Agreement to your last date of employment, divided by twelve.\n(c) Subject to the approval of the Compensation Committee of the Board of Directors, a restricted stock grant of 10,000 shares of the\nCompany's common stock (the "Restricted Stock Grant"). The Restricted Stock Grant shall vest 50% on the third anniversary of the grant date\nand\n50% on the fourth anniversary of the grant date. The Restricted Stock Grant shall be subject to and governed by the terms and conditions\nof the Company's 2008 Amended and Restated Equity Incentive Plan and shall be evidenced by a separate restricted stock agreement.\n2\n4. Termination Without Cause. Should your employment be (a) terminated by the Company without "Cause," as defined below; and (b) the\nCompany does not consent to waive any of the post-employment restrictions contained in paragraph 2(a) above, and (c) you execute and deliver to\nCompany an irrevocable Separation Agreement and Release, within 60 days after your termination of employment (and any payment that constitutes\nnon-qualified deferred compensation under Section 409 A of the Internal Revenue Code of 1986, as amended and any regulations thereunder (the\n"Code") that otherwise would be made within such 60-day period pursuant to this paragraph shall be paid at the expiration of such 60-day period),\nin\na form acceptable to the Company, the Company will pay you a severance payment equal to (i) a lump sum amount equal to the product of (x)\nthe\nannual bonus, if any, that you would have earned based on the actual achievement of the applicable performance objectives in the fiscal year which\nincludes the date of your termination of employment had your employment not been terminated and (y) a fraction, the numerator of which is the\nnumber of days in the fiscal year that includes the date of your termination through the date of such termination and the denominator of which is\n365, payable when bonuses are generally paid to employees of the Company, but in no event later than the 15th day of the third month following the\nend of the year with respect to which such bonus was earned; (ii) twelve (12) months of your then-current base salary, to be paid, less all applicable\ndeductions, according to the Company's normal payroll practices for a period coextensive with the restricted period (twelve months); and (iii) during\nthe restricted period, reimbursement for out-of-pocket COBRA payments paid by you to continue your group health benefits, provided you submit\nrelevant supporting documentation to the Company evidencing such payments. Notwithstanding anything herein to the contrary, however, your right\nto receive the foregoing payments (collectively, the "Salary. Continuation Payments") shall terminate effective immediately upon the date that you\nbecome employed by another entity as an employee, consultant or otherwise, and you agree to notify the Executive Vice-President of Human\nResources in writing prior to the effective date of any such employment. If you fail to so notify the Executive Vice-President of Human Resources,\n(a) you will forfeit your right to receive the Salary Continuation Payments described above (to the extent the Salary Continuation Payments were not\ntheretofore paid) and (b) the Company shall be entitled to recover any Salary Continuation Payments already made to you or on your behalf.\nNotwithstanding the foregoing paragraph, in the event your employment is terminated by the Company without Cause, and you are a\n"specified employee" within the meaning of Section 409A of Code (as determined in accordance with the methodology established by the Company\nas\nin\neffect on the date of your termination), and the Salary Continuation Payments described above to be paid within the first six\nmonths\nfollowing\nsuch date (the "Initial Payment Period") exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the "Limit"), then: (i) any\nportion of the Salary Continuation Payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the\ntimes set forth above; (ii) any portion of the Salary Continuation Payments that are a "short-term deferral" within the meaning of Treas. Regs.\nSection 1.409A-1(b)(4)(i) shall be paid at the times set forth above; (iii) any portion of the Salary Continuation Payments that exceeds the Limit and\nare not a "short-term deferral" (and would have been payable during the Initial Payment Period but for the Limit) shall be paid on the first business\nday after the six-month anniversary of the Termination Date or, if earlier, on the date of your death; and (iv) any portion of the Salary Continuation\nPayments that are payable after the Initial Payment Period shall be paid at the times set forth above. It is intended that each\n3\ninstallment, if any, of the payments and benefits, if any, provided to you under this Section 3 shall be treated as a separate "payment" for purposes of\nSection 409A of the Code.\nFor purposes of this agreement, "Cause" means (i) you have acted in bad faith and to the detriment of the Company; (ii) you have refused or\nfailed to act in accordance with any specific lawful direction or order of supervisory personnel; (iii) you have exhibited in regard to your\nemployment unfitness or unavailability for service, misconduct, dishonesty, habitual neglect, incompetence, or have committed an act of\nembezzlement, fraud or theft with respect to the property of the Company; (iv) you have abused alcohol or drugs on the job or in a manner which\naffects your job; (v) you have been found guilty of or have plead nolo contendere to the commission of a crime involving dishonesty, breach of trust,\nor physical or emotional harm to any person; (vi) you have breached any material term of this Agreement or of any Company policy; and/or\n(vii) your death or disability (such that you cannot perform the essential functions of the job, with or without accommodation). No payment will be\nrequired if the Company elects in its sole discretion to waive the post-termination restrictions on your employment contained in paragraph 2(a)\nherein or if the conditions set forth in this paragraph are otherwise not met.\n5. Termination With Cause or Resignation of Employment. If the Company terminates your employment and such termination is for\n"Cause," as defined above, or if you resign your employment for any reason, then the Company shall pay you all wages due through the termination\ndate. In the event of termination for Cause or your resignation, the Company will not pay any severance, and the restrictions contained in paragraph\n2(a) above will remain in full force and effect unless waived by the Company.\n6. Term. The term of this agreement shall be three (3) years, beginning on the date signed by you, as set forth below, and terminating on the\nthird anniversary of such date. At the Company's request upon or in advance of the termination of this agreement, you will enter into discussions to\nextend the terms of this agreement or negotiate in good faith an agreement of similar effect.\nNotwithstanding the foregoing, in the event that your employment terminates prior to the third anniversary, you shall remain subject to the\npost-termination restrictions contained in Sections 1 and 2 hereof and shall be entitled to the severance payment contained in Section 4 hereof\nprovided that the terms and conditions applicable thereto have been satisfied.\n7. Injunctive Relief. You agree that any actual or threatened breach by you of the covenants set forth in paragraphs 1 and 2 of this agreement\nwould result in irreparable harm to the Company for which monetary damages alone would be an insufficient remedy. Thus, although nothing in\nthis\nparagraph will prohibit the Company from pursuing any remedies available to it against you under applicable law (which shall be cumulative with\nthose remedies set forth herein), you specifically agree that, in the event of any threatened or actual breach of this agreement by you, the Company\nshall be entitled to a temporary restraining order and, thereafter, a preliminary and permanent injunction and other equitable relief including, without\nlimitation, an equitable accounting of earnings, profits, and other benefits, from a court of competent jurisdiction, as well as reimbursement from you\nfor any attorneys' fees and other costs incurred by the Company in obtaining such relief. No specification in this agreement of any legal or equitable\nremedy shall be construed as a waiver or prohibition against pursuing any\n4\nother legal or equitable remedies in the event of a threatened or actual breach of this agreement by you.\n8.\nSeverability. If any provision of this agreement, or any part thereof, is found to be invalid or unenforceable, the same shall not affect the\nremaining provisions, which shall be given full effect, without regard to the invalid portions. Moreover, if any one or more of the provisions\ncontained in this agreement shall be held to be excessively broad as to duration, scope, activity or subject, such provisions shall be construed by\nlimiting and reducing them so as to be enforceable to the maximum extent with applicable law.\n9. At-Will Employment. This agreement is limited to the foregoing terms and shall not be construed to create any relationship between you\nand the Company other than at-will employment for all purposes. This agreement supersedes all agreements concerning the subject matter hereof.\n10. Governing Law. The terms of this agreement and all rights and obligations of the parties thereto including its enforcement shall be\ninterpreted and governed by the laws of the state of New York.\n11. Section 409A of the Code. If any provision of this agreement (or any award of compensation or benefits provided under this agreement)\nwould cause you to incur any additional tax or interest under Section 409 A of the Code, the Company and you shall reasonably cooperate to reform\nsuch provision to comply with 409A and the Company agrees to maintain, to the maximum extent practicable without violating 409A of the Code,\nthe original intent and economic benefit to you of the applicable provision; provided that nothing herein shall require the Company to provide you\nwith any gross-up for any tax, interest or penalty incurred by you under Section 409A of the Code.\nAGREED TO AND ACCEPTED:\nSignature: /s/ Trish Donnelly\nPrint Name: Trish Donnelly\nTrish Donnelly\nDate:\n11/16/2009\n5\nSCHEDULE A TO NON-DISCLOSURE,\nNON-SOLICITATION AND NON-COMPETITION AGREEMENT\nUnless waived in writing by the Company, the post-termination restrictions on employment contained in paragraph 2(a) above shall apply to\nemployment with the following entities, as well as their parent and subsidiary companies:\nAeropostale\nAbercrombie & Fitch brands\nAmerican Eagle brands\nAnn Taylor\nCoach\nGap brands\nKate Spade\nLimited brands\nLiz Claiborne Brands\nLVMH\nRalph Lauren brands\nTheory\nTommy Hilfiger\nTory Burch\nUrban Outfitters brands\nAny retail apparel start-up operated by one of the above companies\n6	EX-10.13 3 dex1013.htm NON-DISCLOSURE, NON-SOLICITATION & NON-COMPETITION AGREEMENT\nDATED 11/16/2009\nExhibit 10.13\nLOGO\nNON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION\nIn consideration of your promotion to EVP – Direct and continued employment with or provision of services to J. Crew Group, Inc. and its\naffiliates (collectively, the “Company”) and for other good and valuable consideration described below, receipt of which is hereby acknowledged,\nyou agree as follows:\n1. Agreement Not to Disclose Confidential Information. In the course of your employment with or provision of services to the Company,\nyou have and will have acquired and have had access to confidential or proprietary information about the Company, including but not limited to,\ntrade secrets, methods, models, passwords, access to computer files, financial information and records, computer software programs, agreements\nand/or contracts between the Company and its vendors and suppliers, the Company’s merchandising, marketing and/or creative policies, practices,\nconcepts, strategies, and methods of operations, inventory, pricing and price change strategies, possible new product lines, future merchandise\ndesigns, patterns, fabrication or fit information, internal policies, pricing policies and procedures, cost estimates, employee lists, training manuals,\nfinancial or business projections, unannounced financial data such as sales, earnings or capital requirements, possible mergers, acquisitions or joint\nventures and information about or received from vendors and other companies with which the Company does business. The foregoing shall be\ncollectively referred to as “Confidential Information.” You are aware that the Confidential Information is not readily available to the public. You\nagree that during your employment or provision of services and for a period of three (3) years thereafter, you will keep confidential and not disclose\nthe Confidential Information to anyone or use it for your own benefit or for the benefit of others, except in performing your duties as our employee\nor agent. You agree that this restriction shall apply whether or not any such information is marked “confidential.”\nAll memoranda, disks, files, notes, records or other documents, whether in electronic form or hard copy (collectively, the “material”) compiled\nby you or made available to you during your employment (whether or not the material contains confidential information) are the property of the\nCompany and shall be delivered to the Company on the termination of your employment or at any other time upon request. Except in connection\nwith your employment, you agree that you will not make or retain copies or excerpts of the material.\n2. Agreement Not to Engage in Unfair Competition. You agree that your position with the Company requires and will continue to require\nthe performance of services which are special, unique, extraordinary and of an intellectual and/or artistic character and places you in a position of\nconfidence and trust with the Company. You further acknowledge that the rendering of services to the Company necessarily requires the disclosure\nof confidential information and trade secrets of the Company. You agree that in the course of your employment with or rendering of services to the\nCompany, you will develop a personal acquaintanceship and relationship with the vendors and other business associates of the Company and\nknowledge of their affairs and requirements. Consequently, you agree that it is reasonable and necessary for the protection of\n770 Broadway New York NY 10003 Tel 212 209 2500 Fax 212 209 2666\nthe goodwill and business of the Company that you make the covenants contained herein. Accordingly, you agree that while you are in the\nCompany’s employ and for the period of twelve months after the termination of your employment, for any reason whatsoever, you shall not directly\nor indirectly, except on behalf of the Company:\n(a) render services to or accept employment, either directly as an employee or owner, or indirectly, as a paid or unpaid consultant or\nindependent contractor of any entity identified on Schedule A hereto (as may be updated by the Company from time to time); or\n(b) employ as an employee or retain as a consultant any person who is then or at any time during the preceding twelve months was an\nemployee of or consultant to the Company, or persuade or attempt to persuade any employee of or consultant to the Company to leave the\nemploy of the Company or to become employed as an employee or retained as a consultant by anyone other than the Company.\n3. Annual Bonuses and Signing Bonus. As additional consideration for you entering into this Agreement and agreeing to the covenants\ncontained herein, the Company will provide you with the following:\n(a) You will continue to have the opportunity to earn an annual bonus(es) under the Company’s bonus plan. Starting with FY 2010,\nprovided that both the Company achieves certain performance objectives (which will be determined by the Company in each fiscal year in\naccordance with the Company’s bonus plan) and you achieve your performance goals, you will be eligible to receive an annual bonus with a\ntarget of 50% of your base salary, up to a maximum bonus of 100% of your base salary. Such annual bonus(es) will be paid only if you are\nactively employed by the Company and not in breach of this Agreement on the date(s) of actual payment(s).\n(b) A one-time bonus payment of $50,000 (less all authorized or required payroll withholdings and payroll deductions) (“Bonus\nPayment”) payable within thirty days after you execute and return this Agreement; provided that you will be required to immediately pay back\na pro-rata portion of such Bonus Payment in the event you voluntarily terminate your employment with the Company or your employment is\nterminated by the Company for Cause, as defined below, within one year after the date of this Agreement. The pro-ration shall be determined\nbased on the number of full months having elapsed from the date of this Agreement to your last date of employment, divided by twelve.\n(c) Subject to the approval of the Compensation Committee of the Board of Directors, a restricted stock grant of 10,000 shares of the\nCompany’s common stock (the “Restricted Stock Grant”). The Restricted Stock Grant shall vest 50% on the third anniversary of the grant date\nand 50% on the fourth anniversary of the grant date. The Restricted Stock Grant shall be subject to and governed by the terms and conditions\nof the Company’s 2008 Amended and Restated Equity Incentive Plan and shall be evidenced by a separate restricted stock agreement.\n2\n4. Termination Without Cause. Should your employment be (a) terminated by the Company without “Cause,” as defined below; and (b) the\nCompany does not consent to waive any of the post-employment restrictions contained in paragraph 2(a) above, and (c) you execute and deliver to\nCompany an irrevocable Separation Agreement and Release, within 60 days after your termination of employment (and any payment that constitutes\nnon-qualified deferred compensation under Section 409 A of the Internal Revenue Code of 1986, as amended and any regulations thereunder (the\n“Code”) that otherwise would be made within such 60-day period pursuant to this paragraph shall be paid at the expiration of such 60-day period), in\na form acceptable to the Company, the Company will pay you a severance payment equal to (i) a lump sum amount equal to the product of (x) the\nannual bonus, if any, that you would have earned based on the actual achievement of the applicable performance objectives in the fiscal year which\nincludes the date of your termination of employment had your employment not been terminated and (y) a fraction, the numerator of which is the\nnumber of days in the fiscal year that includes the date of your termination through the date of such termination and the denominator of which is\n365, payable when bonuses are generally paid to employees of the Company, but in no event later than the 15 day of the third month following the\nend of the year with respect to which such bonus was earned; (ii) twelve (12) months of your then-current base salary, to be paid, less all applicable\ndeductions, according to the Company’s normal payroll practices for a period coextensive with the restricted period (twelve months); and (iii) during\nthe restricted period, reimbursement for out-of-pocket COBRA payments paid by you to continue your group health benefits, provided you submit\nrelevant supporting documentation to the Company evidencing such payments. Notwithstanding anything herein to the contrary, however, your right\nto receive the foregoing payments (collectively, the “Salary Continuation Payments”) shall terminate effective immediately upon the date that you\nbecome employed by another entity as an employee, consultant or otherwise, and you agree to notify the Executive Vice-President of Human\nResources in writing prior to the effective date of any such employment. If you fail to so notify the Executive Vice-President of Human Resources,\n(a) you will forfeit your right to receive the Salary Continuation Payments described above (to the extent the Salary Continuation Payments were not\ntheretofore paid) and (b) the Company shall be entitled to recover any Salary Continuation Payments already made to you or on your behalf.\nNotwithstanding the foregoing paragraph, in the event your employment is terminated by the Company without Cause, and you are a\n“specified employee” within the meaning of Section 409A of Code (as determined in accordance with the methodology established by the Company\nas in effect on the date of your termination), and the Salary Continuation Payments described above to be paid within the first six months following\nsuch date (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A -l(b)(9)(iii)(A) (the “Limit”), then: (i) any\nportion of the Salary Continuation Payments that are payable during the Initial Payment Period that does not exceed the Limit shall be paid at the\ntimes set forth above; (ii) any portion of the Salary Continuation Payments that are a “short-term deferral” within the meaning of Treas. Regs.\nSection 1.409A-l(b)(4)(i) shall be paid at the times set forth above; (iii) any portion of the Salary Continuation Payments that exceeds the Limit and\nare not a “short-term deferral” (and would have been payable during the Initial Payment Period but for the Limit) shall be paid on the first business\nday after the six-month anniversary of the Termination Date or, if earlier, on the date of your death; and (iv) any portion of the Salary Continuation\nPayments that are payable after the Initial Payment Period shall be paid at the times set forth above. It is intended that each\n3\nth\ninstallment, if any, of the payments and benefits, if any, provided to you under this Section 3 shall be treated as a separate “payment” for purposes of\nSection 409A of the Code.\nFor purposes of this agreement, “Cause” means (i) you have acted in bad faith and to the detriment of the Company; (ii) you have refused or\nfailed to act in accordance with any specific lawful direction or order of supervisory personnel; (iii) you have exhibited in regard to your\nemployment unfitness or unavailability for service, misconduct, dishonesty, habitual neglect, incompetence, or have committed an act of\nembezzlement, fraud or theft with respect to the property of the Company; (iv) you have abused alcohol or drugs on the job or in a manner which\naffects your job; (v) you have been found guilty of or have plead nolo contendere to the commission of a crime involving dishonesty, breach of trust,\nor physical or emotional harm to any person; (vi) you have breached any material term of this Agreement or of any Company policy; and/or\n(vii) your death or disability (such that you cannot perform the essential functions of the job, with or without accommodation). No payment will be\nrequired if the Company elects in its sole discretion to waive the post-termination restrictions on your employment contained in paragraph 2(a)\nherein or if the conditions set forth in this paragraph are otherwise not met.\n5. Termination With Cause or Resignation of Employment. If the Company terminates your employment and such termination is for\n“Cause,” as defined above, or if you resign your employment for any reason, then the Company shall pay you all wages due through the termination\ndate. In the event of termination for Cause or your resignation, the Company will not pay any severance, and the restrictions contained in paragraph\n2(a) above will remain in full force and effect unless waived by the Company.\n6. Term. The term of this agreement shall be three (3) years, beginning on the date signed by you, as set forth below, and terminating on the\nthird anniversary of such date. At the Company’s request upon or in advance of the termination of this agreement, you will enter into discussions to\nextend the terms of this agreement or negotiate in good faith an agreement of similar effect.\nNotwithstanding the foregoing, in the event that your employment terminates prior to the third anniversary, you shall remain subject to the\npost-termination restrictions contained in Sections 1 and 2 hereof and shall be entitled to the severance payment contained in Section 4 hereof\nprovided that the terms and conditions applicable thereto have been satisfied.\n7. Injunctive Relief. You agree that any actual or threatened breach by you of the covenants set forth in paragraphs 1 and 2 of this agreement\nwould result in irreparable harm to the Company for which monetary damages alone would be an insufficient remedy. Thus, although nothing in this\nparagraph will prohibit the Company from pursuing any remedies available to it against you under applicable law (which shall be cumulative with\nthose remedies set forth herein), you specifically agree that, in the event of any threatened or actual breach of this agreement by you, the Company\nshall be entitled to a temporary restraining order and, thereafter, a preliminary and permanent injunction and other equitable relief including, without\nlimitation, an equitable accounting of earnings, profits, and other benefits, from a court of competent jurisdiction, as well as reimbursement from you\nfor any attorneys’ fees and other costs incurred by the Company in obtaining such relief. No specification in this agreement of any legal or equitable\nremedy shall be construed as a waiver or prohibition against pursuing any\n4\nother legal or equitable remedies in the event of a threatened or actual breach of this agreement by you.\n8. Severability. If any provision of this agreement, or any part thereof, is found to be invalid or unenforceable, the same shall not affect the\nremaining provisions, which shall be given full effect, without regard to the invalid portions. Moreover, if any one or more of the provisions\ncontained in this agreement shall be held to be excessively broad as to duration, scope, activity or subject, such provisions shall be construed by\nlimiting and reducing them so as to be enforceable to the maximum extent with applicable law.\n9. At-Will Employment. This agreement is limited to the foregoing terms and shall not be construed to create any relationship between you\nand the Company other than at-will employment for all purposes. This agreement supersedes all agreements concerning the subject matter hereof.\n10. Governing Law. The terms of this agreement and all rights and obligations of the parties thereto including its enforcement shall be\ninterpreted and governed by the laws of the state of New York.\n11. Section 409A of the Code. If any provision of this agreement (or any award of compensation or benefits provided under this agreement)\nwould cause you to incur any additional tax or interest under Section 409 A of the Code, the Company and you shall reasonably cooperate to reform\nsuch provision to comply with 409A and the Company agrees to maintain, to the maximum extent practicable without violating 409A of the Code,\nthe original intent and economic benefit to you of the applicable provision; provided that nothing herein shall require the Company to provide you\nwith any gross-up for any tax, interest or penalty incurred by you under Section 409A of the Code.\nAGREED TO AND ACCEPTED:\nSignature: /s/ Trish Donnelly\nPrint Name: Trish Donnelly\nTrish Donnelly\nDate:\n11/16/2009\n5\nSCHEDULE A TO NON-DISCLOSURE,\nNON-SOLICITATION AND NON -COMPETITION AGREEMENT\nUnless waived in writing by the Company, the post-termination restrictions on employment contained in paragraph 2(a) above shall apply to\nemployment with the following entities, as well as their parent and subsidiary companies:\nAeropostale\nAbercrombie & Fitch brands\nAmerican Eagle brands\nAnn Taylor\nCoach\nGap brands\nKate Spade\nLimited brands\nLiz Claiborne Brands\nLVMH\nRalph Lauren brands\nTheory\nTommy Hilfiger\nTory Burch\nUrban Outfitters brands\nAny retail apparel start-up operated by one of the above companies\n6
+4dc5c39e601cd476f4c2def0e6b96915.pdf	effective_date jurisdiction party term	EX-10 .10 13 EXHIBIT 10.10 EMPLOYMENT, ROYALTY AND NON-DISCLOSURE AGREEMENT THIS AGREEMENT (the "Agreement") is made as of the 15th\nday of May, 1996, by and between ENVIROMETRICS PRODUCTS COMPANY, a corporation organized under the laws of the State of South Carolina and\nincluding its agents, representatives, divisions, subdivisions, subsidiaries, wholly or partly owned, parent corporations, affiliates, assignees, related entities and\nsuccessors in interest (hereafter "the Company"), and TOM WILKIE, an individual resident of the State of North Carolina ("Employee"). WITNESSETH:\nWHEREAS, the Company is engaged in the Business of the Company and, in the course of such activity, has acquired or developed certain Trade Secrets,\nConfidential Information, Intellectual Property and Proprietary Information (as such terms are hereinafter defined) not generally known in the Company's industry\nor otherwise; WHEREAS, the Company understands that the Employee has brought to the Company and provided the Company with certain proprietary\ntechnology allowing the Company advantages in the marketplace it would not otherwise enjoy; and WHEREAS, such Trade Secrets, Confidential Information,\nIntellectual Property and Proprietary Information provide the Company with a competitive advantage in the marketplace; WHEREAS, Employee has been, and\nafter and by virtue of the execution of this Agreement will continue to be, employed by the Company in a position involving the trust and confidence of the\nCompany; and WHEREAS, in the course of his employment with the Company, or through his use of the Company's facilities or resources, Employee has had\nand will have access to, and has developed and may develop or contribute to the development of, Trade Secrets, Confidential Information, Intellectual Property\nand Proprietary Information, all solely in connection with his activities as an employee of the Company; and WHEREAS, Employee understands and agrees that\nsubstantial benefits and consideration will inure to him under this Agreement that he would not otherwise enjoy were he not to execute the same. NOW\nTHEREFORE, in consideration of and as an express condition to the continuance of employment of Employee by the Company, the mutual agreements\ncontained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree\nas follows: 1. DEFINITIONS . (a) "Bonus" has the meaning ascribed to it in Section 4 hereof. (b) "Business of the Company" means and includes the business and\ncommercial activities of the Company, as such business is conducted while this Agreement is in effect, including, without limitation, designing, developing, testing,\nmanufacturing, advertising, distributing and selling industrial hygiene and environmental air monitoring and related products. (c)"Cause" means (i) fraud,\ndishonesty, demonstrated incompetence in the performance of professional duties; (ii) excessive unexcused absences from work; (iii) engaging in activities\nprohibited by the policies of the Company as communicated in writing to Employee or expressly prohibited by the terms of this Agreement; or injury, accident,\nillness or other incapacity which wholly, or continuously and materially, disables Employee from performing his duties hereunder for a period of ninety (90) days\nand thereafter for ten (10) days after the Company shall have given Employee written notice of the Company's intention to terminate this Agreement and its\nemployment relationship with Employee because of such disability. The Company will at all times during his employment with the company and at no cost to the\nEmployee provide the Employee with disability insurance sufficient to provide Employee with a minimum of sixty (60) percent of his earnings until recovery or age\nsixty-five (65) and will furnish Employee with a current copy of such policy and immediately notify Employee of any changes or amendments made to such policy.\n(d) "Colorimetric Device" means any device that indicates through corresponding changes in its reflectance or absorbance of light, the presence and/or level of\nexposure to an indicated chemical(s) or substance. (e) "Company" means ENVIROMETRICS PRODUCTS COMPANY, its agents, representatives, divisions,\nsubdivisions, subsidiaries, wholly or partly owned, parent corporations, affiliates, assignees, related entities and successors in interest. (f) "Competing Business"\nmeans any person or entity in the same business or substantially the same business as the Business of Company. (g) "Competing Product" means any good that\nperforms substantially the same function(s) as any of the Products. (h) "Confidential Information" means any and all data and information relating to the Business\nof the Company (whether constituting a Trade Secret or not) which is or has been developed by or disclosed to Employee or of which Employee became aware\nas a consequence of or through his relationship with the Company and which has value to the Company and is not generally known by its competitors. (i)\n"Copyrights" means all original "works of authorship", "compilations", and/or "derivation" including, without limitation, literary, artistic, pictorial, graphic and other\nintellectual works owned or claimed by Company which are registered with the United States Copyright Office or the copyright office of any other jurisdiction, or\nare eligible to be so registered, or are entitled to protection by and under the copyright laws and treaties of the United States or under the equivalent laws of any\nother jurisdiction. (j) "Gross Sales" means the total, without geographical limitations, of all sales of the Products by Company at invoice prices reduced by\ndiscounts, rebates, and return of products defined herein. (k) "Intellectual Property" means the Copyrights, Marks and Patents, collectively or in combination, as\nthe context suggests. (l) "Marks" Means all trade names, word marks, trademarks, service marks and logos or designs (including any trade dress that is\nsusceptible to protection under the laws of the United States or any other political subdivision in the world), whether or not registered with the United States\nPatent and Trademark Office or trademark office or registry of any jurisdiction in the world, placed upon or used in connection with the Business of the Company\nor the sale, distribution, promotion and marketing of the Products or of any other goods or services provided or distributed by Company from time to time, and\nincludes, without limitation, "ACT and design" , "Air-Chem Technologies" and "The ACT Monitoring Card System". (m) "Patents" Means all inventions or letters\npatent owned or licensed by or on behalf of the Company, and which are registered with the United States Patent and Trademark Office or the patent office or\nregistry in any jurisdiction in the world or are eligible for registration and/or other protection under the laws and treaties of the United States or of any such\njurisdiction (n) "Products" means any chemical based colorimetric device(s) developed by the Company and/or produced by the Company or licensee(s) or other\nagent(s) of the Company to perform the function of quantitatively or qualitatively measuring and/or indicating chemicals present in the atmosphere. (o)\n"Proprietary Information" Means all of the following materials and information, whether or not patentable or protected by a copyright, trademark, or service mark,\nto which Employee receives or has received access or which Employee develops or has developed as a result of his employment with the Company or during the\nterm of his employment with the Company or through the use of any of the Company's facilities or resources, or those of its affiliates or of its agents or\ndistributors: (i) Production processes, purchasing information, price lists, performance and scheduling information and data, and other materials or information\nrelating to the Business of the Company; (ii) Discoveries, concepts and ideas, and the embodiment(s) thereof, whether or not actually constituting Intellectual\nProperty hereunder, and the nature and results of research and development activities and "know-how" acquired while in the employ of the Company; (iii) Any\nother materials or information related to the Business of the Company which are not generally known to others engaged in similar business or activities; (iv) All\ninventions and ideas which are derived from or related to Employees's access to knowledge of any of the above enumerated materials and information while in\nthe employ of the Company; and (v) Any trade secrets, confidential information or proprietary information which the Company has acquired or may in the future\nacquire from any third party during employee's service to the company, including, without limitation, operating principles, documentation, drawings, programs and\nperformance specifications and results provided to the Company by such third parties pursuant to agreements, understandings and/or acknowledgments to the\neffect that such trade secrets and confidential or proprietary information provided to the Company by such third parties (collectively "Third Party Confidential\nInformation") is the proprietary and/or confidential information of such respective third part and is to be treated by the Company as if such Third Party Confidential\nInformation were the Company's Confidential Information. (p) "Royalty" means two and one-half percent of Gross Sales of the Products described herein. (q)\n"Salary" has the meaning ascribed to it in Section 4 hereof. (r) "Term" means the Initial Term and any Renewal Term, as such terms are defined below. (s) "Trade\nSecrets" means the whole or any portion or phase of any data or information developed, owned or licensed from a third party by the Company to which Employee\nhas gained access as a result of his employment with the Company, including any formula, pattern, compilation, program, device, method technique,\nimprovement, or process that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable\nby a proper means by, other persons who can obtain economic value from its disclosure or use; and (ii) Is the subject of efforts that are reasonable under the\ncircumstances to maintain its secrecy. Trade Secrets shall not include any data or information (i) that has been voluntarily disclosed to the public by the Company\nor has become generally known to the public (except when such public disclosure has been made by or through Employee, or by a third person or entity with the\nknowledge of Employee, without authorization from the Company); (ii) that has been independently developed and disclosed to parties other than the Company,\nand the public generally or to Employee with a breach of obligation of confidentiality by any such parties running directly or indirectly to the Company; or (iii) that\notherwise enters the public domain through lawful means. 2. TERMS OF ENGAGEMENT; DUTIES. (a) Capacity. The Company hereby employs Employee as\nResearch Chemist and Employee accepts such employment in such capacity by the Company subject to the terms and conditions hereof. (b) Duties. Employee\nrecognizes and agrees that he shall: (i) devote all of his time, energy and skill during regular business hours to faithfully and industriously develop colormetric\ntechnology and products and other technology and products as directed by the Company exclusively for the use and benefit of the Company (vacation time and\nreasonable sick leave excepted); (ii) diligently follow and implement all policies and decisions communicated to him by the Company, to the best of his ability with\nthe resources provided by the Company, including without limitation, those concerning the production, sale of or further research and development concerning,\nthe Products; and (iii) faithfully and to the best of his ability perform the duties and obligations set forth in this Agreement. 3. TERM; TERMINATION. (a) Initial\nterm. The term of the employment of Employee by the Company hereunder shall commence on the date hereof and shall end on December 31, 2000 (the "Initial\nTerm"). (b) Renewal Terms(s). At the expiration of the Initial Term, this Agreement shall be automatically renewed for separate and successive two (2) year terms\n(individually, a "Renewal Term" and, collectively, "Renewal Terms"); provided, however, the parties may agree in writing to modify the compensation to be paid\npursuant to Section 4 hereof during any such Renewal Term, but shall not be bound to do so; provided, further, this Agreement shall not be automatically\nrenewed if either party shall give to the other party written notice of his or its intent not to renew this Agreement no fewer than thirty (30) days prior to the\nexpiration of the Initial Term or any Renewal Term, as applicable. (c) Voluntary Termination by Employee. Employee may terminate this Agreement at any time\nduring the Term upon no fewer than sixty (60), but no more than ninety (90) days prior written notice to the Company, in which event this Agreement and all of the\nCompany's obligations hereunder shall terminate as of the date contained in such notice except that the Royalty shall be payable as provided as in Section (f)\nhereof. Notwithstanding the foregoing, in the event Employee shall terminate this Agreement as a result of a major illness or disability which prevents him from\nperforming his services hereunder, Employee shall thereafter be entitled to receive Salary (as defined below)for a period of ninety (90) days following the date of\nthe occurrence of such injury or disability, and all of the other terms of this Agreement, including all Benefits payable by the Company on behalf of the Employee,\nshall continue until the end of the Annual Term in which such termination occurs, and all Royalty shall be payable as provided in Section (f) hereof and Section\n4(c). (d) Termination by the Company for cause. This Agreement may be terminated by the Company for Cause at any time during the Term, upon ten (10) days\nprior written notice to Employee, in which event this Agreement and all of the Company's obligations hereunder shall terminate as of the notice date, except that\nthe Royalty shall be payable as provided in Section (f) hereof and Section 4(c). (e) Termination by the Company other Than for Cause. In the event the Company\nterminates this Agreement during the Term for reasons other than for Cause, then, in addition to any other remedy available at law or equity, Employee shall be\nentitled to continue to receive his Salary, plus all Benefits to be paid by the Company on behalf of Employee for a period equal to one month for every full year of\nservice, but not to exceed six months, after such termination occurs, plus the Royalty as provided in Section (f) hereof and Section 4(c). (f) Survival of Royalty\nPayments. The Royalty as defined in Section 4(c) of this Agreement shall continue to be paid to Employee notwithstanding termination for any reason of this\nAgreement until the first occurrence of one of the following events: (i) Employee dies, in which event any Royalty accrued and payable on the date of death shall\nbe paid to Employee's estate, and the Royalty shall not thereafter be payable to any other person or entity; (ii) Employee develops Competing Products for any\nCompeting Business, or any employer, person, or entity other than the Company or its affiliates, in which event the Royalty shall cease being paid to Employee or\nany other person or entity; or (iii) Employee becomes employed by or affiliated with a Competing Business as, without limitation, an employee, officer, director,\nagent, consultant, or advisor, in which capacity Employee develops, or assists the Competing Business or its affiliates, employees, officers, directors, agents,\nconsultants, or advisors in the development of, Competing Products, in which event the Royalty shall cease being paid to Employee or any other person or entity.\n(g) Return of Embodiments of Proprietary Information Upon Termination. All notes, data, reference materials, sketches, drawings, memoranda and records in any\nway relating to any of the Proprietary Information or the Business of the Company and any other physical embodiment of the Proprietary Information shall belong\nexclusively to the Company, and Employee agrees to turn over to the Company the originals and all copies of such materials developed or generated by the\nEmployee or coming into his possession during the term of or as a result of his employment by the Company at the request of the Company or, in the absence of\nsuch a request, upon termination (for whatever reason) of Employees employment with the Company. (h) Survival of Covenants. The Covenants of Employee set\nforth in Section 5 hereof shall survive the termination of this Agreement for any reason whatsoever and shall not be extinguished thereby so long as the Royalty is\npaid in accordance with Section 4(c) and Section 3(f). 4 . COMPENSATION . (a) Salary. During the Term, the Company shall pay Employee an annual salary of\nSixty Thousand and No/100 Dollars ($60,000.00) (the "Salary"), which Salary shall be payable in the manner and at the times which the Company regularly\ncompensates its employees, less applicable state and federal taxes. In addition, but subject to conditions of termination set forth above, the Company shall pay\nEmployee the Bonus and Royalty, as defined herein. If the Bonus outlined in 4(b), when added to the base salary at the end of each year does not equal the cost\nof living based on the U.S . Dept Of Labor cost of living index, the Company shall make an adjustment to the base salary for the following year equal to the cost of\nliving index. (b) Bonus. The Company shall pay Employee a bonus equal to Five Thousand and No/100 Dollars ($5000.00) plus grant a ten-year option to\npurchase Five Thousand (5000) shares of the Company's (EVRM) Common Stock. Such options will be granted at the then market price of the Stock and shall be\nfully vested at issuance. This bonus will be awarded for each additional chemical for which monitoring device(s) is developed by Employee (the "Bonus");\nprovided, however, the chemical must be approved by the Marketing Department of the Company. The monitoring device(s) indicating such chemical will be\nconsidered "developed" for purposes hereof upon the completion of the standard validation protocol and an algorithm defining the devices'(s') performance has\nbeen developed and/or an acceptable color match(s) has been identified in the case of qualitative device(s). Bonus shall be paid to Employee within thirty (30)\ndays after monitoring device has been "developed". (c) Royalty. By the thirtieth (30th) day after the last day of each calendar year quarter (each a "Royalty\nQuarter"), the Company shall pay to Employee a Royalty (The "Royalty") equal to Two and One-Half Percent (2.5%) of Gross Sales of the Products as defined\nherein for the immediate preceding calendar quarter. A written statement of the value and quantity of each colorimetric device sold during the "Royalty Quarter"\nshall be given to Employee with each quarterly payment. In the event that such a written statement is not provided employee shall have the right to examine any\nof Company's State Sales Tax Reports for sale of Products as defined herein. Employee shall also have the right to examine all books of account recording Gross\nSales as defined herein. The parties expressly agree that the payment of the Royalty as described in this Agreement shall survive any termination of this\nAgreement except as provided in Section 3(f) of this agreement. In the event of bankruptcy either voluntary or involuntary, or the non-payment of Royalty\npayments to the Employee by the Company as specified in this Agreement and not cured in ten (10) days after written notification of delinquency by the\nEmployee, all obligations of Employee under this agreement or which could or might be imposed by statutory or common law shall be extinguished. In the event\nthat the technology required to produce the Product is transferred through sale or any other means to any other entity, the Royalty as defined herein shall be paid\nby such entity. (d) Payment on Death. In the event Employee dies during the Term of Agreement, and so long as this Agreement was not the subject of a notice\nof terminating as provided in Section 3 hereof, the Company shall pay to his estate any Salary, Royalty or Bonus that would have been payable up until the end of\nthe month in which Employee dies. (e) Benefits. Employee shall be entitled to participate in any retirement, profit sharing, hospital, medical, disability and life\ninsurance programs regularly maintained by the Company for its employees. (f) Expense Reimbursement. The Company will reimburse Employee for all ordinary,\nreasonable necessary expense incurred by him in carrying out his duties under this Agreement upon Employee's presentation to the Company from time to time\nof an itemized account of the receipts for such expenses in such form as may be required by the Company; provided, however, such reimbursement shall be\nconditioned upon deductibility by the Company of such expenses from gross income for federal tax purposes. (g) Product Liability. The Employee is in no way\nresponsible for any product liability. The Company accepts full and complete responsibility for the Product and any claims made by the Company regarding the\nProduct or its capabilities or performance, and the Company will maintain at all times product liability insurance specifically protecting the employee against any\nlegal claims made against him in his capacity as developer of the Product. The Company will furnish the Employee with evidence of such insurance and notify\nemployee immediately of any cancellation, modification or amendment thereto. 5. COVENANTS OF EMPLOYEE . (a) Ownership of Trade Secrets, Confidential\nInformation, Proprietary Information and Intellectual Property. Employee agrees that the Trade Secrets, Confidential Information, Proprietary Information,\nIntellectual Property, and all physical embodiments thereof (collectively the "Information") to which the employee has come into possession of as a result of or\nduring the term of his employment by the Company; are, and shall at all times remain, the sole and exclusive property of the Company, and that any of the\nInformation produced or developed by him as an employee of the Company shall be considered work for hire under United States law. Employee agrees to (a)\nimmediately disclose or transfer to the Company all Information developed in whole or part by him during the Term, (b) assign to the Company any right, title or\ninterest he may have in such Information, and (c) at the request and expense of the Company, to do all things and sign all documents or instruments reasonably\nnecessary to eliminate any ambiguity as to the ownership of the Company of such Information including, without limitation, providing to the Company his full\ncooperation in any litigation or other proceedings to establish, protect or obtain such rights while he is in the employee of the Company. (b) Non-Disclosure or Use\nof Trade Secrets or Confidential Information. During the term of his employment with the Company and at any and all times following the termination of such\nemployment, Employee agrees not to use, reveal, report, publish, disclose or transfer, directly or indirectly, any Trade Secret or Confidential Information of which\nhe came into possession as a result of his employment by the Company for any purpose including, without limitation, the solicitation of existing company\ncustomers of which the Employee is aware, except in the course of performing duties assigned to him by the Company. (c) Non-Disclosure or Use of Proprietary\nInformation. During the term of his employment with the Company and for a period of one (1) year after termination (for whatever reason) of such employment,\nEmployee agrees not to use, reveal, report, publish, disclose or transfer, directly or indirectly, any Proprietary Information for any purpose. (d) No Solicitation.\nEmployee covenants and agrees that, while he is employed by the Company and for a period of two (2) years following termination (for any reason) of such\nemployment, he will not, directly or indirectly, solicit, induce or hire away, or assist any third person or entity in inducing, diverting, soliciting or hiring away, (i) any\nemployee of the Company, whether such employee is employed pursuant to a written contract, is for a determined period or is at will, or (ii) any person or entity\nwhich, at the time of termination of employment, was a client or customer of the Company or with whom or which, at the time of termination of employment, the\nCompany was negotiating regarding the sale or distribution of the Company's services or products. (e) Return of Company Property. Employee covenants and\nagrees that, upon termination (for any reason) of this Agreement, he will return or turn over to the Company all physical embodiments of the Information including\nwithout limitation, all notes, data reference materials sketches, drawings, memoranda, records, laboratory equipment, chemicals, tools, implements, computers,\ndrives, diskettes, tapes, renditions, models, mock-ups, prototypes, evaluations, measurements, and tests, and all originals copies or other physical embodiments\nthereof, which in any way relate to any of the Information or to the Business of the Company which belong to the Company or were developed or generated while\nin the employment of the Company. (f) Additional Provisions. Employee recognizes and agrees: (i) that the covenants and agreements contained in Section 5 of\nthis Agreement are of the essence of this Agreement; (ii) that each of such covenants is reasonable and necessary to protect and preserve the interests and\nproperties of the Company and the Business of the Company; (iii) that loss and damage may be suffered by the Company should Employee breach any of such\ncovenants or agreements; (iv) that each of such covenants and agreements is separate, distinct and severable from the other and remaining provisions of this\nAgreement. 6. MISCELLANEOUS PROVISIONS . (a) Binding Effect. This Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto\nand their respective heirs, successors , assigns and legal representatives. (b) Severability. The provisions of this Agreement shall be deemed severable and the\ninvalidity or the unenforceability of any one or more of the provisions hereof shall not affect the validity or enforceability of the other provisions hereof. (d) Notices.\nAll notices and other communications which are required or permitted hereunder shall be in writing and shall be sufficient if delivered by hand or mailed by\ncertified mail return receipt requested, postage prepaid, to the addresses set forth below or to such other address as the parties shall specify by notice in writing\nto the other party. All such notices and communications made by mail shall be deemed to have been received on the date of actual delivery or on the fifth (5th)\nbusiness day after the mailing thereof, whichever is earlier: Company: Envirometrics Products Company 1019 Bankton Dr. Charleston, SC 29406 Employee:\nThomas A. Wilkie 1370 Lamont Norwood Rd. Pittsboro, North Carolina 27312 (e) Entire Agreement. This Agreement contains the entire agreement between the\nparties hereto and supersedes and terminates any and all prior written agreements and understandings between the parties hereto with respect to the\nemployment of, or work performed in the capacity of an independent contractor by the Employee or payments to Employee by the Company for any reason or\nwork product, including, without limitation, the Employee Invention Assignment Agreement and the Employee Non-Disclosure and Non-Competition Agreement,\nboth Agreements executed on or about March 13, 1992 , and any subsequent amendments, modifications and understandings related thereto. (f) Amendments\nand Waivers. This Agreement may not be modified or amended except by an instrument or instruments in writing signed by the party against whom enforcement\nof any such modification or amendment is sought, Either party hereto may by an instrument in writing waive compliance by the other party of any other provision\nof this Agreement on the part of such other party. The waiver by any party of a breach of any term or provision shall not be construed as a waiver of any\nsubsequent breach. (g) Section Headings. The section headings contained in this Agreement are for reference purposes only and shall not be deemed to control\nor affect the meaning or construction of any provision. The Company is a corporation in good standing under the laws of South Carolina and is duly authorized to\ncarry on the business presently conducted by it and its signers of this Agreement are properly authorized to execute, deliver and perform this Agreement on\nbehalf of the Company and that this Agreement constitutes a valid and legally binding obligation of the Company. IN WITNESS WHEREOF, the parties hereto\nhave executed this Agreement to be effective as of the date and year first written above. ATTEST The Company: Envirometrics Products Company\n__________________________\n__________________________________________\nSecretary By: Walter H. Elliott, III , President [CORPORATE SEAL]\nEMPLOYEE: __________________________________________ Thomas A. Wilkie	EX-10.10 13 EXHIBIT 10.10 EMPLOYMENT, ROYALTY AND NON-DISCLOSURE AGREEMENT THIS AGREEMENT (the "Agreement") is made as ofIhe 15Ih\nday of May, 1996, by and between ENVIROMETRICS PRODUCTS COMPANY, a corporation organized underthe laws of the State of South Carolina and\nincluding is agens, representatives, divisions, subdivisions, subsidiaries, wholly or partly owned, parent corporations, affiliates, assignees, related entities and\nsuccessors in interest (hereafter "the Company"), and TOM WILKIE, an individual residentofthe State of North Carolina ("E mployee"). WITN ESSETH:\nWHE REAS, the Company is engaged in the Business of Ihe Company and, in Ihe course ofsuch activity, has acquired or developed certain Trade Secrets,\nConfidential Information, Intellectual Property and Proprietary Information (as such terms are hereinafter defined) not generally known in the Company's industry\nor oIhenNise; WHE REAS, Ihe Company understands that Ihe Employee has broughtto the Company and provided Ihe Company with certain proprietary\ntechnology allowing the Company advantages in the marketplace it would not otherwise enjoy; and WHE REAS, such Trade Secrets, Confidential Information,\nIntellectual Property and Proprietary Information provide the Company with a competitive advantage in the marketplace; WHE REAS, Employee has been, and\nafter and by virtue of the execution of Ihis Agreementwill continue to be, employed by the Company in a position involving the trust and confidence of the\nCompany; and WHE REAS, in the course of his employmentwith the Company, or through his use ofthe Company's facilities or resources, Employee has had\nand will have access to, and has developed and may develop or contribute to the development of, Trade Secrets, Confidential Information, Intellectual Property\nand Proprietary Information, all solely in connection wiIh his activities as an employee of the Company; and WHEREAS, Employee understands and agrees that\nsubstantial benefis and consideration will inure to him under this Agreement Ihat he would notoIherwise enjoy were he notto execute the same. NOW\nTHE RE FORE, in consideration of and as an express condition to Ihe continuance of employment of Employee by Ihe Company, the mutual agreements\ncontained herein and olher good and valuable consideration, the receipt and sufficiency ofwhich are hereby acknowledged, the parties hereto do hereby agree\nas follows: 1. DEFINITIONS. (a) "Bonus" has Ihe meaning ascribed to itin Section 4 hereof. (b) "Business of the Company" means and includes Ihe business and\ncommercial activities of the Company, as such business is conducted while this Agreement is in effect, including, without limitation, designing, developing, testing,\nmanufacturing, advertising, distributing and selling industrial hygiene and environmental air monitoring and related producs. (c)"Cause" means (i) fraud,\ndishonesty, demonstrated incompetence in the performance of professional duties; (ii) excessive unexcused absences from work; (iii) engaging in activities\nprohibited by the policies ofthe Company as communicated in writing to Employee or expressly prohibited by the terms ofthis Agreement; or injury, accident,\nillness or other incapacity which wholly, or continuously and materially, disables Employee from performing his duties hereunder for a period of ninety (90) days\nand Ihereafter for ten (10) days after the Company shall have given Employee written notice ofthe Company's intention to terminate Ihis Agreement and is\nemployment relationship wiIh Employee because of such disability. The Company will at all times during his employmentwith Ihe company and at no costto the\nEmployee provide Ihe Employee wiIh disability insurance sufficientto provide Employee with a minimum ofsixty (60) percent of his earnings until recovery or age\nsixty-five (65) and will furnish Employee wiIh a currentcopy ofsuch policy and immediately notify Employee of any changes or amendmens made to such policy.\n(d) "Colorimetric Device" means any device that indicates Ihrough corresponding changes in is reflectance or absorbance of light, the presence and/or level of\nexposure to an indicated chemical(s) or substance. (e) "Company" means ENVIROMETRICS PRODUCTS COMPANY, is agens, representatives, divisions,\nsubdivisions, subsidiaries, wholly or parij owned, parentcorporations, affiliates, assignees, related entities and successors in interest. (fi "Competing Business"\nmeans any person or entity in the same business or substantially Ihe same business as Ihe Business ofCompany. (g) "Competing Product" means any good that\nperforms substantially the same function(s) as any ofIhe Producs. (h) "Confidential Information" means any and all data and information relating to the Business\nof Ihe Company (wheIher constituting a Trade Secretor not) which is or has been developed by or disclosed to Employee or of which Employee became aware\nas a consequence of or through his relationship wiIh the Company and which has value to the Company and is notgenerally known by is competitors. (i)\n"Copyrighs" means all original "works of athorship", "compilations", and/or "derivation" including, without limitation, literary, artistic, pictorial, graphic and other\nintellectual works owned or claimed by Company which are registered wiIh the United States CopyrightOffice or the copyrightoffice of any otherjurisdiction, or\nare eligible to be so registered, or are entitled to protection by and under the copyright laws and treaties of Ihe United States or under the equivalent laws of any\notherjurisdiction. (j) "Gross Sales" means Ihe total, wiIhout geographical limitations, ofall sales ofIhe Products by Company at invoice prices reduced by\ndiscounts, rebates, and return of products defined herein. (k) "Intellectual Property" means the Copyrights, Marks and Patents, collectively or in combination, as\nIhe contextsuggess. (l) "Marks" Means all trade names, word marks, trademarks, service marks and logos or designs (including any trade dress that is\nsusceptible to protection under the laws ofthe United States or any other political subdivision in the world), whether or not registered with the United States\nPatent and Trademark Office or trademark office or registry of anyjurisdiction in Ihe world, placed upon or used in connection with Ihe Business ofthe Company\nor the sale, distribution, promotion and marketing of Ihe Producs or of any other goods or services provided or distributed by Company from time to time, and\nincludes, without limitation, "ACT and design" , "Air-C hem Technologies" and "The ACT Monitoring Card System". (m) "Patens" Means all inventions or letters\npatentowned or licensed by or on behalfofthe Company, and which are registered wiIh the United States Patent and Trademark Office or the patent office or\nregistry in anyjurisdiction in the world or are eligible for registration and/or other protection under the laws and treaties ofthe United States or of any such\njurisdiction (n) "Producs" means any chemical based colorimetric device(s) developed by the Company and/or produced by the Company or licensee(s) or other\nagent(s) of the Company to perform the function ofquantitatively or qualitatively measuring and/or indicating chemicals present in the atmosphere. (0)\n"Proprietary Information" Means all of Ihe following materials and information, whether or not patentable or protected by a copyright, trademark, or sen/ice mark,\nto which Employee receives or has received access or which Employee develops or has developed as a result of his employmentwith the Company or during Ihe\nterm of his employmentwiIh the Company or through the use of any of the Company's facilities or resources, or those of is affiliates or of is agens or\ndistributors: (i) Production processes, purchasing information, price liss, performance and scheduling information and data, and olher materials or information\nrelating to Ihe Business ofthe Company; (ii) Discoveries, conceps and ideas, and the embodiment(s) thereof, whether or not actually constituting Intellectual\nProperty hereunder, and the nature and resuls of research and development activities and "know-how" acquired while in Ihe employ ofthe Company; (iii) Any\nother materials or information related to Ihe Business ofthe Company which are notgenerally known to oIhers engaged in similar business or activities; (iv) All\ninventions and ideas which are derived from or related to Employees's access to knowledge of any of Ihe above enumerated materials and information while in\nIhe employ ofthe Company; and (v) Any trade secres, confidential information or proprietary information which the Company has acquired or may in the future\nacquire from any third party during employee's sen/ice to the company, including, without limitation, operating principles, documentation, drawings, programs and\nperformance specifications and resuls provided to the Company by such third parties pursuantto agreemens, understandings and/or acknowledgmens to the\neffectthat such trade secres and confidential or proprietary information provided to the Company by such third parties (collectively "Third Party Confidential\nInformation") is Ihe proprietary and/or confidential information of such respective third part and is to be treated by the Company as ifsuch Third Party Confidential\nInformation were the Company's Confidential Information. (p) "Royalty" means two and one-half percent ofGross Sales ofthe Producs described herein. (q)\n"Salary" has the meaning ascribed to it in Section 4 hereof. (r) "Term" means the Initial Term and any Renewal Term, as such terms are defined below. (5) "Trade\nSecres" means the whole or any portion or phase of any data or information developed, owned or licensed from a Ihird party by the Company to which Employee\nhas gained access as a result of his employmentwith Ihe Company, including any formula, pattern, compilation, program, device, method technique,\nimprovement, or process that: (i) derives independenteconomic value, actual or potential, from not being generally known to, and not being readily ascertainable\nby a proper means by, olher persons who can obtain economic value from is disclosure or use; and (ii) Is Ihe subjectofeffors Ihat are reasonable under the\ncircumstances to maintain is secrecy. Trade Secres shall not include any data or information (i) that has been voluntarily disclosed to the public by the Company\nor has become generally known to the public (exceptwhen such public disclosure has been made by or through Employee, or by a third person or entity with the\nknowledge of Employee, without authorization from the Company); (ii) that has been independeany developed and disclosed to parties other than the Company,\nand the public generally or to Employee with a breach of obligation of confidentiality by any such parties running directly or indirectly to the Company; or (iii) that\nothenNise enters the public domain through lawful means. 2. TERMS OF ENGAGE ME NT; DUTIES. (a) Capacity. The Company hereby employs Employee as\nResearch Chemist and Employee accepts such employment in such capacity by the Company subject to the terms and conditions hereof. (b) Duties. Employee\nrecognizes and agrees that he shall: (i) devote all of his time, energy and skill during regular business hours to faithfully and industriously develop colormetric\ntechnology and products and other technology and products as directed by the Company exclusively for the use and benefit of the Company (vacation time and\nreasonable sick leave excepted); (ii) diligently follow and implement all policies and decisions communicated to him by the Company, to the bestof his ability with\nthe resources provided by the Company, including without limitation, those concerning the production, sale ofor further research and developmentconcerning,\nthe Products; and (iii) faithfully and to the bestof his ability perform the duties and obligations setforth in this Agreement. 3. TE RM; TE RMINATION. (a) Initial\nterm. The term ofthe employmentof Employee by the Company hereunder shall commence on the date hereof and shall end on December 31, 2000 (the "Initial\nTerm"). (b) Renewal Terms(s). Atthe expiration of the Initial Term, this Agreementshall be automatically renewed for separate and successive two (2) year terms\n(individually, a "Renewal Term" and, collectively, "Renewal Terms"); provided, however, the parties may agree in writing to modify the compensation to be paid\npursuantto Section 4 hereofduring any such Renewal Term, butshall not be bound to do so; provided, further, this Agreementshall not be automatically\nrenewed if either party shall give to the other party written notice of his or its intent not to renew this Agreement no fewer than thirty (30) days prior to the\nexpiration of the Initial Term or any Renewal Term, as applicable. (c) Voluntary Termination by Employee. Employee may terminate this Agreement at any time\nduring the Term upon no fewer than sixty (60), but no more than ninety (90) days prior written notice to the Company, in which eventthis Agreement and all of the\nCompany's obligations hereunder shall terminate as of the date contained in such notice except thatthe Royalty shall be payable as provided as in Section (f)\nhereof. Notwithstanding the foregoing, in the event Employee shall terminate this Agreement as a result of a major illness or disability which prevents him from\nperforming his services hereunder, Employee shall thereafter be entitled to receive Salary (as defined below)for a period of ninety (90) days following the date of\nthe occurrence ofsuch injury or disability, and all ofthe other terms of this Agreement, including all Benefits payable by the Company on behalfofthe Employee,\nshall continue until the end ofthe Annual Term in which such termination occurs, and all Royalty shall be payable as provided in Section (f) hereof and Section\n4(c). (d) Termination by the Company for cause. This Agreement may be terminated by the Company for Cause at any time during the Term, upon ten (10) days\nprior written notice to Employee, in which event this Agreement and all of the Company's obligations hereunder shall terminate as of the notice date, except that\nthe Royalty shall be payable as provided in Section (0 hereof and Section 4(c). (e) Termination by the Company other Than for Cause. In the eventthe Company\nterminates this Agreementduring the Term for reasons other than for Cause, then, in addition to any other remedy available at law or equity, Employee shall be\nentitled to continue to receive his Salary, plus all Benefits to be paid by the Company on behalfof Employee for a period equal to one month for every full year of\nsen/ice, but not to exceed six months, after such termination occurs, plus the Royalty as provided in Section (f) hereof and Section 4(c). (fi Sun/ival of Royalty\nPayments. The Royalty as defined in Section 4(c) of this Agreementshall continue to be paid to Employee notwithstanding termination for any reason of this\nAgreement until the firstoccurrence ofone ofthe following events: (i) Employee dies, in which event any Royalty accrued and payable on the date of death shall\nbe paid to Employee's estate, and the Royalty shall not thereafter be payable to any other person or entity; (ii) Employee develops Competing Products for any\nCompeting Business, or any employer, person, or entity other than the Company or its affiliates, in which eventthe Royalty shall cease being paid to Employee or\nany other person or entity; or (iii) Employee becomes employed by or affiliated with a Competing Business as, without limitation, an employee, officer, director,\nagent, consultant, or advisor, in which capacity Employee develops, or assists the Competing Business or its affiliates, employees, officers, directors, agents,\nconsultants, or advisors in the developmentof, Competing Products, in which eventthe Royalty shall cease being paid to Employee or any other person or entity.\n(g) Return of Embodiments of Proprietary Information Upon Termination. All notes, data, reference materials, sketches, drawings, memoranda and records in any\nway relating to any of the Proprietary Information or the Business ofthe Company and any other physical embodiment of the Proprietary Information shall belong\nexclusively to the Company, and Employee agrees to turn over to the Company the originals and all copies of such materials developed or generated by the\nEmployee or coming into his possession during the term of or as a result of his employment by the Company atthe requestof the Company or, in the absence of\nsuch a request, upon termination (for whatever reason) of Employees employmentwith the Company. (h) Sun/ival ofCovenants. The Covenants of Employee set\nforth in Section 5 hereofshall survive the termination ofthis Agreement for any reason whatsoever and shall not be extinguished thereby so long as the Royalty is\npaid in accordance with Section 4(c) and Section 3(f). 4. COMPENSATION. (a) Salary. During the Term, the Company shall pay Employee an annual salary of\nSixty Thousand and No/100 Dollars ($60,000.00) (the "Salary"), which Salary shall be payable in the manner and atthe times which the Company regularly\ncompensates its employees, less applicable state and federal taxes. In addition, but subjectto conditions oftermination set forth above, the Company shall pay\nEmployee the Bonus and Royalty, as defined herein. Ifthe Bonus outlined in 4(b), when added to the base salary at the end of each year does notequal the cost\nof living based on the US. DeptOf Labor costof living index, the Company shall make an adjustment to the base salary for the following year equal to the cost of\nliving index. (b) Bonus. The Company shall pay Employee a bonus equal to Five Thousand and No/100 Dollars ($5000.00) plus granta ten-year option to\npurchase Five Thousand (5000) shares of the Company's (EVRM) Common Stock. Such options will be granted at the then market price of the Stock and shall be\nfully vested at issuance. This bonus will be awarded for each additional chemical for which monitoring device(s) is developed by Employee (the "Bonus");\nprovided, however, the chemical must be approved by the Marketing Departmentof the Company. The monitoring device(s) indicating such chemical will be\nconsidered "developed" for purposes hereof upon the completion of the standard validation protocol and an algorithm defining the devices'(s') performance has\nbeen developed and/or an acceptable color match(s) has been identified in the case of qualitative device(s). Bonus shall be paid to Employee within thirty (30)\ndays after monitoring device has been "developed". (c) Royalty. By the thirtieth (30th) day afterthe lastday ofeach calendar year quarter (each a "Royalty\nOuarter"), the Company shall pay to Employee a Royalty (The "Royalty") equal to Two and One-Half Percent(2.5%) ofGross Sales of the Products as defined\nherein for the immediate preceding calendar quarter. A written statementofthe value and quantity ofeach colorimetric device sold during the "Royalty Ouarter"\nshall be given to Employee with each quarterly payment. In the eventthat such a written statement is not provided employee shall have the right to examine any\nof Company's State Sales Tax Reports for sale of Products as defined herein. Employee shall also have the right to examine all books of account recording Gross\nSales as defined herein. The parties expressly agree that the paymentofthe Royalty as described in this Agreement shall sun/ive any termination of this\nAgreementexcept as provided in Section 3(f) of this agreement. In the event of bankruptcy either voluntary or involuntary, or the non-payment of Royalty\npayments to the Employee by the Company as specified in this Agreement and notcured in ten (10) days after written notification of delinquency by the\nEmployee, all obligations of Employee under this agreementor which could or might be imposed by statutory or common law shall be extinguished. In the event\nthat the technology required to produce the Product is transferred through sale or any other means to any other entity, the Royalty as defined herein shall be paid\nby such entity. (d) Paymenton Death. In the event Employee dies during the Term ongreement, and so long as this Agreementwas not the subjectof a notice\nof terminating as provided in Section 3 hereof, the Company shall pay to his estate any Salary, Royalty or Bonus thatwould have been payable up until the end of\nthe month in which Employee dies. (e) Benefits. Employee shall be entitled to participate in any retirement, profit sharing, hospital, medical, disability and life\ninsurance programs regularly maintained by the Company for its employees. (0 Expense Reimbursement. The Company will reimburse Employee for all ordinary,\nreasonable necessary expense incurred by him in carrying out his duties under this Agreement upon Employee's presentation to the Company from time to time\nof an itemized accountof the receipts for such expenses in such form as may be required by the Company; provided, however, such reimbursement shall be\nconditioned upon deductibility by the Company ofsuch expenses from gross income for federal tax purposes. (g) Product Liability. The Employee is in no way\nresponsible for any product liability. The Company accepts full and complete responsibility for the Product and any claims made by the Company regarding the\nProductor its capabilities or performance, and the Company will maintain at all times product liability insurance specifically protecting the employee against any\nlegal claims made against him in his capacity as developer of the Product. The Company will furnish the Employee with evidence ofsuch insurance and notify\nemployee immediately of any cancellation, modification or amendment thereto. 5. COVE NANTS OF E M P LOY E E. (a) Ownership of Trade Secrets, Confidential\nInformation, Proprietary Information and Intellectual Property. Employee agrees thatthe Trade Secrets, Confidential Information, Proprietary Information,\nIntellectual Property, and all physical embodiments thereof (collectively the "Information") to which the employee has come into possession of as a result of or\nduring the term of his employment by the Company; are, and shall at all times remain, the sole and exclusive property ofthe Company, and that any of the\nInformation produced or developed by him as an employee of the Company shall be considered work for hire under United States law. Employee agrees to (a)\nimmediately disclose or transfer to the Company all Information developed in whole or part by him during the Term, (b) assign to the Company any right, title or\ninterest he may have in such Information, and (c) at the request and expense ofthe Company, to do all things and sign all documents or instruments reasonably\nnecessary to eliminate any ambiguity as to the ownership ofthe Company ofsuch Information including, without limitation, providing to the Company his full\ncooperation in any litigation or other proceedings to establish, protector obtain such rights while he is in the employee of the Company. (b) Non-Disclosure or Use\nofTrade Secrets or Confidential Information. During the term of his employment with the Company and at any and all times following the termination ofsuch\nemployment, Employee agrees not to use, reveal, report, publish, disclose or transfer, directly or indirectly, any Trade Secretor Confidential Information ofwhich\nhe came into possession as a resultof his employment by the Company for any purpose including, without limitation, the solicitation ofexisting company\ncustomers ofwhich the Employee is aware, except in the course of performing duties assigned to him by the Company. (c) Non-Disclosure or Use of Proprietary\nInformation. During the term of his employment with the Company and for a period of one (1) year after termination (for whatever reason) of such employment,\nEmployee agrees not to use, reveal, report, publish, disclose or transfer, directly or indirectly, any Proprietary Information for any purpose. (d) No Solicitation.\nEmployee covenants and agrees that, while he is employed by the Company and for a period of two (2) years following termination (for any reason) ofsuch\nemployment, he will not, directly or indirectly, solicit, induce or hire away, or assist any third person or entity in inducing, diverting, soliciting or hiring away, (i) any\nemployee of the Company, whether such employee is employed pursuant to a written contract, is for a determined period or is at will, or (ii) any person or entity\nwhich, at the time of termination ofemployment, was a client or customer of the Company or with whom or which, atthe time of termination of employment, the\nCompany was negotiating regarding the sale or distribution of the Company's sen/ices or products. (e) Return ofCompany Property. Employee covenants and\nagrees that, upon termination (for any reason) ofthis Agreement, he will return or turn over to the Company all physical embodiments of the Information including\nwithoutlimitation, all notes, data reference materials sketches, drawings, memoranda, records, laboratory equipment, chemicals, tools, implements, computers,\ndrives, diskettes, tapes, renditions, models, mock-ups, prototypes, evaluations, measurements, and tests, and all originals copies or other physical embodiments\nthereof, which in any way relate to any of the Information or to the Business of the Company which belong to the Company or were developed or generated while\nin the employment of the Company. (f) Additional Provisions. Employee recognizes and agrees: (i) that the covenants and agreements contained in Section 5 of\nthis Agreement are ofthe essence ofthis Agreement; (ii) that each ofsuch covenants is reasonable and necessary to protect and preserve the interests and\nproperties ofthe Company and the Business of the Company; (iii) that loss and damage may be suffered by the Company should Employee breach any ofsuch\ncovenants or agreements; (iv) that each of such covenants and agreements is separate, distinct and severable from the other and remaining provisions ofthis\nAgreement. 6. MISCELLANEOUS PROVISIONS. (a) Binding Effect. This Agreementshall inure to the benefit of, and shall be binding upon, the parties hereto\nand their respective heirs, successors, assigns and legal representatives. (b) Severability. The provisions of this Agreementshall be deemed severable and the\ninvalidity or the unenforceability of any one or more ofthe provisions hereof shall not affectthe validity or enforceability of the other provisions hereof. (d) Notices.\nAll notices and other communications which are required or permitted hereunder shall be in writing and shall be sufficient if delivered by hand or mailed by\ncertified mail return receipt requested, postage prepaid, to the addresses set forth below or to such other address as the parties shall specify by notice in writing\nto the other party. All such notices and communications made by mail shall be deemed to have been received on the date of actual delivery or on the fifth (5th)\nbusiness day afterthe mailing thereof, whichever is earlier: Company: Envirometrics Products Company 1019 Bankton Dr. Charleston, SC 29406 Employee:\nThomas A. Wilkie 1370 Lamont NonNood Rd. Pitt'sboro, North Carolina 27312 (e) Entire Agreement. This Agreement contains the entire agreement between the\nparties hereto and supersedes and terminates any and all prior written agreements and understandings between the parties hereto with respect to the\nemployment of, or work performed in the capacity of an independent contractor by the Employee or payments to Employee by the Company for any reason or\nwork product, including, without limitation, the Employee Invention AssignmentAgreement and the Employee Non-Disclosure and Non-Competition Agreement,\nboth Agreements executed on or about March 13, 1992, and any subsequent amendments, modifications and understandings related thereto. (fl Amendments\nand Waivers. This Agreement may not be modified or amended except by an instrumentor instruments in writing signed by the party against whom enforcement\nof any such modification or amendment is sought, Either party hereto may by an instrument in writing waive compliance by the other party of any other provision\nof this Agreementon the part ofsuch other party. The waiver by any party of a breach of any term or provision shall not be construed as a waiver of any\nsubsequent breach. (g) Section Headings. The section headings contained in this Agreement are for reference purposes only and shall not be deemed to control\nor affectthe meaning or construction of any provision. The Company is a corporation in good standing under the laws of South Carolina and is duly authorized to\ncarry on the business presently conducted by it and its signers of this Agreement are properly authorized to execute, deliver and perform this Agreement on\nbehalf of the Company and thatthis Agreementconstitutes a valid and legally binding obligation ofthe Company. IN WITNESS WHE REOF, the parties hereto\nhave executed this Agreement to be effective as ofthe date and year firstwritten above. ATTE ST The Company: Envirometrics Products Company\nSecretary By: Walter H. Elliott, III, President [CORPORATE SEAL]	EX-10.10 13 EXHIBIT 10.10 EMPLOYMENT ROYALTY AND NON-DISCLOSURE AGREEMENT THIS AGREEMENT (the "Agreement") is made as of the 15th\nday of May, 1996, by and between ENVIROMETRICS PRODUCTS COMPANY, a corporation organized under the laws of the State of South Carolina and\nincluding its agents, representatives, divisions, subdivisions, subsidiaries, wholly or partly owned, parent corporations, affiliates, assignees, related entities\nand\nsuccessors in interest (hereafter "the Company"), and TOM WILKIE, an individual resident of the State of North Carolina "Employee"). WITNESSETH:\nWHEREAS, the Company is engaged in the Business of the Company and, in the course of such activity, has acquired or developed certain Trade Secrets,\nConfidential Information, Intellectua Property and roprietary Information (as such terms are hereinafter defined) not generally known in the Company's industry\nor otherwise; WHEREAS, the Company understands that the Employee has brought to the Company and provided the Company with certain proprietary\ntechnology allowing the Company advantages in the marketplace it would not otherwise enjoy; and WHEREAS, such Trade Secrets, Confidential Information,\nIntellectual roperty and roprietary Information provide the Company with a competitive advantage in the marketplace; WHEREAS, mployee has been, and\nafter and by virtue of the execution of this Agreement will continue to be, employed by the Company in a position involving the trust and confidence of the\nCompany; and WHEREAS, in the course of his employment with the Company, or through his use of the Company's facilities or resources, mployee has had\nand will have access to, and has developed and may develop or contribute to the development of, Trade Secrets, Confidential Information, Intellectua P roperty\nand Proprietary Information, all solely in connection with his activities as an employee of the Company; and WHEREAS, Employee understands and agrees\nthat\nsubstantial benefits and consideration will inure to him under this Agreement that he would not otherwise enjoy were he not to execute the same NOW\nTHEREFORE, in consideration of and as an express condition to the continuance of employment of E mployee by the Company, the mutual agreements\ncontained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree\nas follows: 1. FINITIONS. (a) "Bonus" has the meaning ascribed to it in Section 4 hereof. (b) "Business of the Company" means and includes the business and\ncommercial activities of the Company, as such business is conducted while this Agreement is in effect, including, without limitation, designing, developing,\ntesting,\nmanufacturing, advertising, distributing and selling industrial hygiene and environmental air monitoring and related products. )"Cause" means (i) fraud,\ndishonesty, demonstrated incompetence in the performance of professional duties; (ii) excessive unexcused absences from work; (iii) engaging in activities\nprohibited by the policies of the Company as communicated in writing to Employee or expressly prohibited by the terms of this Agreement; or injury, accident,\nillness or other incapacity which wholly, or continuously and materially, disables Employee from performing his duties hereunder for a period of ninety (90) days\nand thereafter for ten (10) days after the Company shall have given Employee written notice of the Company's intention to terminate this Agreement and its\nemployment relationship with Employee because of such disability. The Company will at all times during his employment with the company and at no cost to the\nEmployee provide the Employee with disability insurance sufficient to provide Employee with a minimum of sixty (60) percent of his earnings unti recovery or age\nsixty-five (65) and wil furnish Employee with a current copy of such policy and immediately notify E mployee of any changes or amendments made to such policy.\n(d) "Colorimetric Device" means any device that indicates through corresponding changes in its reflectance or absorbance of light, the presence and/or level of\nexposure to an indicated chemical(s) or substance. (e) "Company" means ENVIROMETRICS PRODUCTS COMPANY, its agents, representatives, divisions,\nsubdivisions, subsidiaries, wholly or partly owned, parent corporations, affiliates, assignees, related entities and successors in interest (f) "Competing Business"\nmeans any person or entity in the same business or substantially the same business as the Business of Company. (g) 'Competing roduct" means any good that\nperforms substantially the same function(s) as any of the roducts. (h) "Confidential Information" means any and all data and information relating to the Business\nof the Company (whether constituting a Trade Secret or not) which is or has been developed by or disclosed to mployee or of which E mployee became\naware\nas a consequence of or through his relationship with the Company and which has value to the Company and is not generally known by its competitors. (i)\n"Copyrights" means all original "works of authorship", "compilations", and/or "derivation" including, without limitation, literary, artistic, pictorial, graphic and other\nintellectual works owned or claimed by Company which are registered with the United States Copyright Office or the copyright office of any other jurisdiction,\nor\nare eligible to be so registered, or are entitled to protection by and under the copyright laws and treaties of the United States or under the equivalent laws of any\nother jurisdiction. (j) "Gross Sales" means the total, without geographical limitations, of all sales of the Products by Company at invoice prices reduced\nby\ndiscounts, rebates, and return of products defined herein. (k) "Intellectual Property" means the Copyrights, Marks and Patents, collectively or in combination, as\nthe context suggests. (I) "Marks" Means all trade names, word marks, trademarks, service marks and logos or designs (including any trade dress that\nis\nsusceptible to protection under the laws of the United States or any other political subdivision in the world), whether or not registered with the United States\nPatent and Trademark Office or trademark office or registry of any jurisdiction in the world, placed upon or used in connection with the Business of the Company\nor the sale, distribution, promotion and marketing of the P roducts or of any other goods or services provided or distributed by Company from time to time, and\nincludes, without limitation, "ACT and design" "Air-Chem Technologies" and "The ACT Monitoring Card ystem". (m) "Patents" Means all inventions or letters\npatent owned or licensed by or on behalf of the Company, and which are registered with the Jnited States Patent and Trademark O ffice or the patent office\nor\nregistry in any jurisdiction in the world or are eligible for registration and/or other protection under the laws and treaties of the United States or of any such\njurisdiction (n) roducts" means any chemical based colorimetric device(s) developed by the Company and/or produced by the Company or licensee(s or other\nagent(s) of the Company to perform the function of quantitatively or qualitatively measuring and/or indicating chemicals present in the atmosphere. (o)\n"Proprietary Information" Means all of the following materials and information, whether or not patentable or protected by a copyright, trademark, or service mark,\nto which Employee receives or has received access or which mployee develops or has developed as a result of his employment with the Company or during the\nterm of his employment with the Company or through the use of any of the Company's facilities or resources, or those of its affiliates or of its agents or\ndistributors: (i) Production processes, purchasing information, price lists, performance and scheduling information and data, and other materials or information\nrelating to the Business of the Company; (ii) Discoveries, concepts and ideas, and the embodiment(s) thereof, whether or not actually constituting Intellectual\nProperty hereunder, and the nature and results of research and development activities and "know-how" acquired while in the employ of the Company; (iii) Any\nother materials or information related to the Business of the Company which are not generally known to others engaged in similar business or activities; (iv)\nAll\ninventions and ideas which are derived from or related to Employees's access to knowledge of any of the above enumerated materials and information while in\nthe\nemploy of the Company; and (v) Any trade secrets, confidential information or proprietary information which the Company has acquired or may in the future\nacquire from any third party during employee's service to the company, including, without limitation, operating principles, documentation, drawings, programs and\nperformance specifications and results provided to the Company by such third parties pursuant to agreements, understandings and/or acknowledgments to the\neffect that such trade secrets and confidential or proprietary information provided to the Company by such third parties (collectively "Third arty Confidential\nInformation") is the proprietary and/or confidential information of such respective third part and is to be treated by the Company as if such Third arty Confidential\nInformation were the Company's Confidential Information. (p) "Royalty" means two and one-half percent of Gross Sales of the roducts described herein. (q)\n"Salary" has the meaning ascribed to it in Section 4 hereof. (r) "Term" means the Initia Term and any Renewal Term, as such terms are defined below. (s) "Trade\nSecrets" means the whole or any portion or phase of any data or information developed, owned or licensed from a third party by the Company to which Employee\nhas\ngained access as a result of his employment with the Company, including any formula, pattern, compilation, program, device, method technique,\nimprovement, or process that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable\nby a proper means by, other persons who can obtain economic value from its disclosure or use; and (ii) Is the subject of efforts that are reasonable under the\ncircumstances to maintain its secrecy. Trade Secrets shall not include any data or information (i) that has been voluntarily disclosed to the public by the Company\nor has become generally known to the public (except when such public disclosure has been made by or through Employee, or by a third person or entity with\nthe\nknowledge of Employee, without authorization from the Company); (ii) that has been independently developed and disclosed to parties other than the Company,\nand the public generally or to Employee with a breach of obligation of confidentiality by any such parties running directly or indirectly to the Company; or (iii) that\notherwise enters the public domain through lawful means. 2. TERMS OF ENGAGEMENT; DUTIES. (a) Capacity. The Company hereby employs Employee as\nResearch Chemist and Employee accepts such employment in such capacity by the Company subject to the terms and conditions hereof. (b) Duties. E mployee\nrecognizes and agrees that he shall: (i) devote all of his time, energy and skill during regular business hours to faithfully and industriously develop colormetric\ntechnology and products and other technology and products as directed by the Company exclusively for the use and benefit of the Company (vacation time and\nreasonable sick leave excepted); (ii) diligently follow and implement all policies and decisions communicated to him by the Company, to the best of his ability with\nthe resources provided by the Company, including without limitation, those concerning the production, sale of or further research and development concerning,\nthe roducts; and (iii) faithfully and to the best of his ability perform the duties and obligations set forth in this Agreement. 3. TERM; TERMINATION. (a) Initia\nterm. The term of the employment of Employee by the Company hereunder shall commence on the date hereof and shall end on December 31, 2000 (the "Initial\nTerm"). (b) Renewal Terms(s). At the expiration of the Initia Term, this Agreement shall be automatically renewed for separate and successive two (2) year terms\n(individually, a "Renewal Term" and, collectively, "Renewal Terms"); provided, however, the parties may agree in writing to modify the compensation to be paid\npursuant to Section 4 hereof during any such enewal Term, but shall not be bound to do so; provided, further this Agreement shall not be automatically\nrenewed if either party shall give to the other party written notice of his or its intent not to renew this Agreement no fewer than thirty (30) days prior to the\nexpiration of the Initial Term or any Renewal Term, as applicable. (c) Voluntary Termination by Employee. E mployee may terminate this Agreement at any time\nduring the Term upon no fewer than sixty (60), but no more than ninety (90) days prior written notice to the Company, in which event this Agreement\nand\nall\nof\nthe\nCompany's obligations hereunder shall terminate as of the date contained in such notice except that the Royalty shall be payable as provided as in Section (f)\nhereof. Notwithstanding the foregoing, in the event Employee shall terminate this Agreement as a result of a major illness or disability which prevents him from\nperforming his services hereunder, Employee shall thereafter be entitled to receive Salary (as defined below)fo a period of ninety (90) days following the date of\nthe occurrence of such injury or disability, and all of the other terms of this Agreement, including all Benefits payable by the Company on behalf of the mployee,\nshall continue until the end of the Annua Term in which such termination occurs, and all Royalty shal be payable as provided in Section (f) hereof and Section\n4(c). (d) Termination by the Company for cause. This Agreement may be terminated by the Company for Cause at any time during the Term, upon ten (10)\ndays\nprior written notice to Employee, in which event this Agreement and all of the Company's obligations hereunder shall terminate as of the notice date, except that\nthe Royalty shal be payable as provided in Section (f) hereof and Section 4(c). (e) Termination by the Company other Than for Cause. In the event the Company\nterminates this Agreement during the Term for reasons other than for Cause, then, in addition to any other remedy available at law or equity, Employee shall\nbe\nentitled to continue to receive his Salary, plus all Benefits to be paid by the Company on behalf of E mployee for a period equal to one month for every full year\nof\nservice, but not to exceed six months, after such termination occurs, plus the oyalty as provided in Section (f) hereof and Section 4(c). (f) Survival of oyalty\nPayments. The Royalty as defined in Section 4(c) of this Agreement shall continue to be paid to Employee notwithstanding termination for any reason of this\nAgreement until the first occurrence of one of the following events: (i) Employee dies, in which event any oyalty accrued and payable on the date of death shall\nbe paid to Employee's estate, and the oyalty shall not thereafter be payable to any other person or entity; (ii) mployee develops Competing Products for\nany\nCompeting Business, or any employer, person, or entity other than the Company or its affiliates, in which event the oyalty shall cease being paid to Employee or\nany other person or entity; or (iii) mployee becomes employed by or affiliated with a Competing Business as, without limitation, an employee, officer, director,\nagent, consultant, or advisor, in which capacity Employee develops, or assists the Competing Business or its affiliates, employees, officers, directors, agents,\nconsultants, or advisors in the development of, Competing Products, in which event the oyalty shal cease being paid to Employee or any other person or entity.\n(g) Return of mbodiments of Proprietary Information Upon Termination. All notes, data, reference materials, sketches, drawings, memoranda and records in any\nway relating to any of the roprietary Information or the Business of the Company and any other physical embodiment of the Proprietary Information shal belong\nexclusively to the Company, and mployee agrees to turn over to the Company the originals and all copies of such materials developed or generated by the\nE mployee or coming into his possession during the term of or as a result of his employment by the Company at the request of the Company or, in the absence of\nsuch a request, upon termination (for whatever reason) of Employees employment with the Company. (h) Survival of Covenants. The Covenants of Employee set\nforth in Section 5 hereof shall survive the termination of this Agreement for any reason whatsoever and shall not be extinguished thereby so long as the oyalty is\npaid in accordance with Section 4(c) and Section 3(f). 4. COMPENSATION. (a) Salary. During the Term, the Company shall pay Employee an annua salary of\nSixty Thousand and No/100 Dollars ($60,000.00) (the "Salary"), which Salary shall be payable in the manner and at the times which the Company regularly\ncompensates its employees, less applicable state and federa taxes. In addition, but subject to conditions of termination set forth above, the Company shall pay\nE mployee the Bonus and Royalty, as defined herein. If the Bonus outlined in 4(b), when added to the base salary at the end of each year does not equal the cost\nof living based on the U.S. Dept Of Labor cost of living index, the Company shall make an adjustment to the base salary for the following year equal to the cost of\nliving index. (b) Bonus. The Company shall pay Employee a bonus equal to Five Thousand and No/100 Dollars ($5000.00) plus grant a ten-year option to\npurchase Five Thousand (5000) shares of the Company's (EVRM) Common Stock. Such options will be granted at the then market price of the Stock and shal be\nfully vested at issuance. This bonus will be awarded for each additional chemical for which monitoring device(s) is developed by Employee (the "Bonus");\nprovided, however, the chemical must be approved by the Marketing Department of the Company. The monitoring device(s) indicating such chemical will be\nconsidered "developed" for purposes hereof upon the completion of the standard validation protoco and an algorithm defining the devices'(s' performance has\nbeen developed and/or an acceptable color match(s) has been identified in the case of qualitative device(s). Bonus shall be paid to E mployee within thirty (30)\ndays after monitoring device has been "developed". (c) Royalty. By the thirtieth (30th) day after the last day of each calendar year quarter (each a "Royalty\nQuarter"),\nthe Company shall pay to Employee a Royalty (The "Royalty") equal to Two and One-Half Percent (2.5%) of Gross Sales of the Products as defined\nherein for the immediate preceding calendar quarter. A written statement of the value and quantity of each colorimetric device sold during the "Royalty Quarter"\nshall be given to mployee with each quarterly payment. In the event that such a written statement is not provided employee shall have the right to examine\nany\nof Company's State Sales Tax Reports for sale of roducts as defined herein. Employee shall also have the right to examine all books of account recording Gross\nSales as defined herein. The parties expressly agree that the payment of the oyalty as described in this Agreement shall survive any termination of this\nAgreement except as provided in Section 3(f) of this agreement. In the event of bankruptcy either voluntary or involuntary, or the non-payment of Royalty\npayments to the Employee by the Company as specified in this Agreement and not cured in ten (10) days after written notification of delinquency by the\nEmployee, all obligations of Employee under this agreement or which could or might be imposed by statutory or common law shal be extinguished. In the event\nthat the technology required to produce the roduct is transferred through sale or any other means to any other entity, the oyalty as defined herein shal be\npaid\nby such entity. (d) ayment on Death. In the event Employee dies during the Term of Agreement, and so long as this Agreement was not the subject of a notice\nof terminating as provided in Section 3 hereof, the Company shal pay to his estate any Salary, Royalty or Bonus that would have been payable up until the end of\nthe month in which mployee dies. (e) Benefits. E mployee shall be entitled to participate in any retirement, profit sharing, hospital, medical, disability and life\ninsurance programs regularly maintained by the Company for its employees. (f) Expense Reimbursement. The Company wil reimburse Employee for all ordinary,\nreasonable necessary expense incurred by him in carrying out his duties under this Agreement upon mployee's presentation to the Company from time to time\nof an itemized account of the receipts for such expenses in such form as may be required by the Company; provided, however, such reimbursement shall be\nconditioned upon deductibility by the Company of such expenses from gross income for federal tax purposes. (g) roduct Liability. The Employee is in no way\nresponsible for any product liability. The Company accepts full and complete responsibility for the Product and any claims made by the Company regarding the\nProduct\nor\nits capabilities or performance, and the Company will maintain at all times product liability insurance specifically protecting the employee against any\nlega claims made against him in his capacity as developer of the Product. The Company will furnish the Employee with evidence of such insurance and notify\nemployee immediately of any cancellation, modification or amendment thereto. 5. COVENANTS OF EMPLOYEE. (a) Ownership of Trade Secrets, Confidential\nInformation, P roprietary Information and Intellectual roperty. mployee agrees that the Trade Secrets, Confidential Information, Proprietary Information,\nIntellectual Property, and all physical embodiments thereof (collectively the "Information") to which the employee has come into possession of as a result of or\nduring the term of his employment by the Company; are, and shall at all times remain, the sole and exclusive property of the Company, and that any of the\nInformation produced or developed by him as an employee of the Company shal be considered work for hire under United States law. mployee agrees to (a)\nimmediately disclose or transfer to the Company all Information developed in whole or part by him during the Term, (b) assign to the Company any right, title or\ninterest he may have in such Information, and (c) at the request and expense of the Company, to do all things and sign all documents or instruments reasonably\nnecessary to eliminate any ambiguity as to the ownership of the Company of such Information including, without limitation, providing to the Company his full\ncooperation in any litigation or other proceedings to establish, protect or obtain such rights while he is in the employee of the Company. (b) Non-Disclosure or Use\nof Trade ecrets or Confidential Information. During the term of his employment with the Company and at any and all times following the termination of such\nemployment, Employee agrees not to use, reveal, report, publish, disclose or transfer, directly or indirectly, any Trade Secret or Confidential Information of which\nhe came into possession as a result of his employment by the Company for any purpose including, without limitation, the solicitation of existing company\ncustomers of which the Employee is aware, except in the course of performing duties assigned to him by the Company. (c) Non-Disclosure or Use of roprietary\nInformation. During the term of his employment with the Company and for a period of one (1) year after termination (for whatever reason) of such employment,\nEmployee agrees not to use, reveal, report publish, disclose or transfer, directly or indirectly, any Proprietary Information for any purpose. (d) No Solicitation.\nEmployee covenants and agrees that, while he is employed by the Company and for a period of two (2) years following termination (for any reason) of such\nemployment, he will not, directly or indirectly, solicit, induce or hire away, or assist any third person or entity in inducing, diverting, soliciting or hiring away, (i) any\nemployee of the Company, whether such employee is employed pursuant to a written contract, is for a determined period or is at will, or (ii) any person or entity\nwhich, at the time of termination of employment, was a client or customer of the Company or with whom or which, at the time of termination of employment, the\nCompany was negotiating regarding the sale or distribution of the Company's services or products. (e) Return of Company roperty. mployee covenants and\nagrees that, upon termination (for any reason) of this Agreement, he will return or turn over to the Company all physical embodiments of the Information including\nwithout limitation, all notes, data reference materials sketches, drawings, memoranda, records, laboratory equipment, chemicals, tools, implements, computers,\ndrives, diskettes, tapes, renditions, models, mock-ups, prototypes, evaluations, measurements, and tests, and all originals copies or other physical embodiments\nthereof, which in any way relate to any of the Information or to the Business of the Company which belong to the Company or were developed or generated while\nin the employment of the Company. (f) Additional P rovisions. mployee recognizes and agrees: (i) that the covenants and agreements contained in Section 5 of\nthis Agreement are of the essence of this Agreement; (ii) that each of such covenants is reasonable and necessary to protect and preserve the interests and\nproperties of the Company and the Business of the Company; (iii) that loss and damage may be suffered by the Company should Employee breach any of such\ncovenants or agreements; (iv) that each of such covenants and agreements is separate, distinct and severable from the other and remaining provisions of this\nAgreement. 6. MISCELLANEOUS PROVISIONS. (a) Binding Effect. This Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto\nand their respective heirs, successors, assigns and legal representatives. (b) everability. The provisions of this Agreement shall be deemed severable and the\ninvalidity or the unenforceability of any one or more of the provisions hereof shall not affect the validity or enforceability of the other provisions hereof. (d) Notices.\nAl notices and other communications which are required or permitted hereunder shall be in writing and shall be sufficient if delivered by hand or mailed by\ncertified mail return receipt requested, postage prepaid, to the addresses set forth below or to such other address as the parties shall specify by notice in writing\nto the other party. All such notices and communications made by mail shall be deemed to have been received on the date of actual delivery or on the fifth (5th)\nbusiness day after the mailing thereof, whichever is earlier: Company: Envirometrics Products Company 1019 Bankton Dr. Charleston, SC 29406 mployee:\nThomas A. Wilkie 1370 Lamont Norwood Rd. ittsboro, North Carolina 27312 (e) ntire Agreement. This Agreement contains the entire agreement between the\nparties hereto and supersedes and terminates any and all prior written agreements and understandings between the parties hereto with respect to the\nemployment of, or work performed in the capacity of an independent contractor by the mployee or payments to mployee by the Company for any reason or\nwork product, including, without limitation, the Employee Invention Assignment Agreement and the Employee Non-Disclosure and Non-Competition Agreement\nboth Agreements executed on or about March 13, 1992, and any subsequent amendments, modifications and understandings related thereto. (f) Amendments\nand Waivers. This Agreement may not be modified or amended except by an instrument or instruments in writing signed by the party against whom enforcement\nof any such modification or amendment is sought, E ither party hereto may by an instrument in writing waive compliance by the other party of any other provision\nof this Agreement on the part of such other party. The waiver by any party of a breach of any term or provision shall not be construed as a waiver of any\nsubsequent breach. (g) Section Headings. The section headings contained in this Agreement are for reference purposes only and shall not be deemed to control\nor affect the meaning or construction of any provision. The Company is a corporation in good standing under the laws of South Carolina and is duly authorized to\ncarry on the business presently conducted by it and its signers of this Agreement are properly authorized to execute, deliver and perform this Agreement on\nbehalf of the Company and that this Agreement constitutes a valid and legally binding obligation of the Company. IN WITNESS WHEREOF the parties hereto\nhave executed this Agreement to be effective as of the date and year first written above. ATTEST The Company: Envirometrics Products Company\nSecretary By: Walter H. Elliott, III, resident [CORPORATE SEAL]\nEMPLOYEE:\nThomas A. Wilkie	EX-10 .10 13 EXHIBIT 10.10 EMPLOYMENT, ROYALTY AND NON-DISCLOSURE AGREEMENT THIS AGREEMENT (the "Agreement") is made as of the 15th\nday of May, 1996, by and between ENVIROMETRICS PRODUCTS COMPANY, a corporation organized under the laws of the State of South Carolina and\nincluding its agents, representatives, divisions, subdivisions, subsidiaries, wholly or partly owned, parent corporations, affiliates, assignees, related entities and\nsuccessors in interest (hereafter "the Company"), and TOM WILKIE, an individual resident of the State of North Carolina ("Employee"). WITNESSETH:\nWHEREAS, the Company is engaged in the Business of the Company and, in the course of such activity, has acquired or developed certain Trade Secrets,\nConfidential Information, Intellectual Property and Proprietary Information (as such terms are hereinafter defined) not generally known in the Company's industry\nor otherwise; WHEREAS, the Company understands that the Employee has brought to the Company and provided the Company with certain proprietary\ntechnology allowing the Company advantages in the marketplace it would not otherwise enjoy; and WHEREAS, such Trade Secrets, Confidential Information,\nIntellectual Property and Proprietary Information provide the Company with a competitive advantage in the marketplace; WHEREAS, Employee has been, and\nafter and by virtue of the execution of this Agreement will continue to be, employed by the Company in a position involving the trust and confidence of the\nCompany; and WHEREAS, in the course of his employment with the Company, or through his use of the Company's facilities or resources, Employee has had\nand will have access to, and has developed and may develop or contribute to the development of, Trade Secrets, Confidential Information, Intellectual Property\nand Proprietary Information, all solely in connection with his activities as an employee of the Company; and WHEREAS, Employee understands and agrees that\nsubstantial benefits and consideration will inure to him under this Agreement that he would not otherwise enjoy were he not to execute the same. NOW\nTHEREFORE, in consideration of and as an express condition to the continuance of employment of Employee by the Company, the mutual agreements\ncontained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree\nas follows: 1. DEFINITIONS . (a) "Bonus" has the meaning ascribed to it in Section 4 hereof. (b) "Business of the Company" means and includes the business and\ncommercial activities of the Company, as such business is conducted while this Agreement is in effect, including, without limitation, designing, developing, testing,\nmanufacturing, advertising, distributing and selling industrial hygiene and environmental air monitoring and related products. (c)"Cause" means (i) fraud,\ndishonesty, demonstrated incompetence in the performance of professional duties; (ii) excessive unexcused absences from work; (iii) engaging in activities\nprohibited by the policies of the Company as communicated in writing to Employee or expressly prohibited by the terms of this Agreement; or injury, accident,\nillness or other incapacity which wholly, or continuously and materially, disables Employee from performing his duties hereunder for a period of ninety (90) days\nand thereafter for ten (10) days after the Company shall have given Employee written notice of the Company's intention to terminate this Agreement and its\nemployment relationship with Employee because of such disability. The Company will at all times during his employment with the company and at no cost to the\nEmployee provide the Employee with disability insurance sufficient to provide Employee with a minimum of sixty (60) percent of his earnings until recovery or age\nsixty-five (65) and will furnish Employee with a current copy of such policy and immediately notify Employee of any changes or amendments made to such policy.\n(d) "Colorimetric Device" means any device that indicates through corresponding changes in its reflectance or absorbance of light, the presence and/or level of\nexposure to an indicated chemical(s) or substance. (e) "Company" means ENVIROMETRICS PRODUCTS COMPANY, its agents, representatives, divisions,\nsubdivisions, subsidiaries, wholly or partly owned, parent corporations, affiliates, assignees, related entities and successors in interest. (f) "Competing Business"\nmeans any person or entity in the same business or substantially the same business as the Business of Company. (g) "Competing Product" means any good that\nperforms substantially the same function(s) as any of the Products. (h) "Confidential Information" means any and all data and information relating to the Business\nof the Company (whether constituting a Trade Secret or not) which is or has been developed by or disclosed to Employee or of which Employee became aware\nas a consequence of or through his relationship with the Company and which has value to the Company and is not generally known by its competitors. (i)\n"Copyrights" means all original "works of authorship", "compilations", and/or "derivation" including, without limitation, literary, artistic, pictorial, graphic and other\nintellectual works owned or claimed by Company which are registered with the United States Copyright Office or the copyright office of any other jurisdiction, or\nare eligible to be so registered, or are entitled to protection by and under the copyright laws and treaties of the United States or under the equivalent laws of any\nother jurisdiction. (j) "Gross Sales" means the total, without geographical limitations, of all sales of the Products by Company at invoice prices reduced by\ndiscounts, rebates, and return of products defined herein. (k) "Intellectual Property" means the Copyrights, Marks and Patents, collectively or in combination, as\nthe context suggests. (l) "Marks" Means all trade names, word marks, trademarks, service marks and logos or designs (including any trade dress that is\nsusceptible to protection under the laws of the United States or any other political subdivision in the world), whether or not registered with the United States\nPatent and Trademark Office or trademark office or registry of any jurisdiction in the world, placed upon or used in connection with the Business of the Company\nor the sale, distribution, promotion and marketing of the Products or of any other goods or services provided or distributed by Company from time to time, and\nincludes, without limitation, "ACT and design" , "Air-Chem Technologies" and "The ACT Monitoring Card System". (m) "Patents" Means all inventions or letters\npatent owned or licensed by or on behalf of the Company, and which are registered with the United States Patent and Trademark Office or the patent office or\nregistry in any jurisdiction in the world or are eligible for registration and/or other protection under the laws and treaties of the United States or of any such\njurisdiction (n) "Products" means any chemical based colorimetric device(s) developed by the Company and/or produced by the Company or licensee(s) or other\nagent(s) of the Company to perform the function of quantitatively or qualitatively measuring and/or indicating chemicals present in the atmosphere. (o)\n"Proprietary Information" Means all of the following materials and information, whether or not patentable or protected by a copyright, trademark, or service mark,\nto which Employee receives or has received access or which Employee develops or has developed as a result of his employment with the Company or during the\nterm of his employment with the Company or through the use of any of the Company's facilities or resources, or those of its affiliates or of its agents or\ndistributors: (i) Production processes, purchasing information, price lists, performance and scheduling information and data, and other materials or information\nrelating to the Business of the Company; (ii) Discoveries, concepts and ideas, and the embodiment(s) thereof, whether or not actually constituting Intellectual\nProperty hereunder, and the nature and results of research and development activities and "know-how" acquired while in the employ of the Company; (iii) Any\nother materials or information related to the Business of the Company which are not generally known to others engaged in similar business or activities; (iv) All\ninventions and ideas which are derived from or related to Employees's access to knowledge of any of the above enumerated materials and information while in\nthe employ of the Company; and (v) Any trade secrets, confidential information or proprietary information which the Company has acquired or may in the future\nacquire from any third party during employee's service to the company, including, without limitation, operating principles, documentation, drawings, programs and\nperformance specifications and results provided to the Company by such third parties pursuant to agreements, understandings and/or acknowledgments to the\neffect that such trade secrets and confidential or proprietary information provided to the Company by such third parties (collectively "Third Party Confidential\nInformation") is the proprietary and/or confidential information of such respective third part and is to be treated by the Company as if such Third Party Confidential\nInformation were the Company's Confidential Information. (p) "Royalty" means two and one-half percent of Gross Sales of the Products described herein. (q)\n"Salary" has the meaning ascribed to it in Section 4 hereof. (r) "Term" means the Initial Term and any Renewal Term, as such terms are defined below. (s) "Trade\nSecrets" means the whole or any portion or phase of any data or information developed, owned or licensed from a third party by the Company to which Employee\nhas gained access as a result of his employment with the Company, including any formula, pattern, compilation, program, device, method technique,\nimprovement, or process that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable\nby a proper means by, other persons who can obtain economic value from its disclosure or use; and (ii) Is the subject of efforts that are reasonable under the\ncircumstances to maintain its secrecy. Trade Secrets shall not include any data or information (i) that has been voluntarily disclosed to the public by the Company\nor has become generally known to the public (except when such public disclosure has been made by or through Employee, or by a third person or entity with the\nknowledge of Employee, without authorization from the Company); (ii) that has been independently developed and disclosed to parties other than the Company,\nand the public generally or to Employee with a breach of obligation of confidentiality by any such parties running directly or indirectly to the Company; or (iii) that\notherwise enters the public domain through lawful means. 2. TERMS OF ENGAGEMENT; DUTIES. (a) Capacity. The Company hereby employs Employee as\nResearch Chemist and Employee accepts such employment in such capacity by the Company subject to the terms and conditions hereof. (b) Duties. Employee\nrecognizes and agrees that he shall: (i) devote all of his time, energy and skill during regular business hours to faithfully and industriously develop colormetric\ntechnology and products and other technology and products as directed by the Company exclusively for the use and benefit of the Company (vacation time and\nreasonable sick leave excepted); (ii) diligently follow and implement all policies and decisions communicated to him by the Company, to the best of his ability with\nthe resources provided by the Company, including without limitation, those concerning the production, sale of or further research and development concerning,\nthe Products; and (iii) faithfully and to the best of his ability perform the duties and obligations set forth in this Agreement. 3. TERM; TERMINATION. (a) Initial\nterm. The term of the employment of Employee by the Company hereunder shall commence on the date hereof and shall end on December 31, 2000 (the "Initial\nTerm"). (b) Renewal Terms(s). At the expiration of the Initial Term, this Agreement shall be automatically renewed for separate and successive two (2) year terms\n(individually, a "Renewal Term" and, collectively, "Renewal Terms"); provided, however, the parties may agree in writing to modify the compensation to be paid\npursuant to Section 4 hereof during any such Renewal Term, but shall not be bound to do so; provided, further, this Agreement shall not be automatically\nrenewed if either party shall give to the other party written notice of his or its intent not to renew this Agreement no fewer than thirty (30) days prior to the\nexpiration of the Initial Term or any Renewal Term, as applicable. (c) Voluntary Termination by Employee. Employee may terminate this Agreement at any time\nduring the Term upon no fewer than sixty (60), but no more than ninety (90) days prior written notice to the Company, in which event this Agreement and all of the\nCompany's obligations hereunder shall terminate as of the date contained in such notice except that the Royalty shall be payable as provided as in Section (f)\nhereof. Notwithstanding the foregoing, in the event Employee shall terminate this Agreement as a result of a major illness or disability which prevents him from\nperforming his services hereunder, Employee shall thereafter be entitled to receive Salary (as defined below)for a period of ninety (90) days following the date of\nthe occurrence of such injury or disability, and all of the other terms of this Agreement, including all Benefits payable by the Company on behalf of the Employee,\nshall continue until the end of the Annual Term in which such termination occurs, and all Royalty shall be payable as provided in Section (f) hereof and Section\n4(c). (d) Termination by the Company for cause. This Agreement may be terminated by the Company for Cause at any time during the Term, upon ten (10) days\nprior written notice to Employee, in which event this Agreement and all of the Company's obligations hereunder shall terminate as of the notice date, except that\nthe Royalty shall be payable as provided in Section (f) hereof and Section 4(c). (e) Termination by the Company other Than for Cause. In the event the Company\nterminates this Agreement during the Term for reasons other than for Cause, then, in addition to any other remedy available at law or equity, Employee shall be\nentitled to continue to receive his Salary, plus all Benefits to be paid by the Company on behalf of Employee for a period equal to one month for every full year of\nservice, but not to exceed six months, after such termination occurs, plus the Royalty as provided in Section (f) hereof and Section 4(c). (f) Survival of Royalty\nPayments. The Royalty as defined in Section 4(c) of this Agreement shall continue to be paid to Employee notwithstanding termination for any reason of this\nAgreement until the first occurrence of one of the following events: (i) Employee dies, in which event any Royalty accrued and payable on the date of death shall\nbe paid to Employee's estate, and the Royalty shall not thereafter be payable to any other person or entity; (ii) Employee develops Competing Products for any\nCompeting Business, or any employer, person, or entity other than the Company or its affiliates, in which event the Royalty shall cease being paid to Employee or\nany other person or entity; or (iii) Employee becomes employed by or affiliated with a Competing Business as, without limitation, an employee, officer, director,\nagent, consultant, or advisor, in which capacity Employee develops, or assists the Competing Business or its affiliates, employees, officers, directors, agents,\nconsultants, or advisors in the development of, Competing Products, in which event the Royalty shall cease being paid to Employee or any other person or entity.\n(g) Return of Embodiments of Proprietary Information Upon Termination. All notes, data, reference materials, sketches, drawings, memoranda and records in any\nway relating to any of the Proprietary Information or the Business of the Company and any other physical embodiment of the Proprietary Information shall belong\nexclusively to the Company, and Employee agrees to turn over to the Company the originals and all copies of such materials developed or generated by the\nEmployee or coming into his possession during the term of or as a result of his employment by the Company at the request of the Company or, in the absence of\nsuch a request, upon termination (for whatever reason) of Employees employment with the Company. (h) Survival of Covenants. The Covenants of Employee set\nforth in Section 5 hereof shall survive the termination of this Agreement for any reason whatsoever and shall not be extinguished thereby so long as the Royalty is\npaid in accordance with Section 4(c) and Section 3(f). 4 . COMPENSATION . (a) Salary. During the Term, the Company shall pay Employee an annual salary of\nSixty Thousand and No/100 Dollars ($60,000.00) (the "Salary"), which Salary shall be payable in the manner and at the times which the Company regularly\ncompensates its employees, less applicable state and federal taxes. In addition, but subject to conditions of termination set forth above, the Company shall pay\nEmployee the Bonus and Royalty, as defined herein. If the Bonus outlined in 4(b), when added to the base salary at the end of each year does not equal the cost\nof living based on the U.S . Dept Of Labor cost of living index, the Company shall make an adjustment to the base salary for the following year equal to the cost of\nliving index. (b) Bonus. The Company shall pay Employee a bonus equal to Five Thousand and No/100 Dollars ($5000.00) plus grant a ten-year option to\npurchase Five Thousand (5000) shares of the Company's (EVRM) Common Stock. Such options will be granted at the then market price of the Stock and shall be\nfully vested at issuance. This bonus will be awarded for each additional chemical for which monitoring device(s) is developed by Employee (the "Bonus");\nprovided, however, the chemical must be approved by the Marketing Department of the Company. The monitoring device(s) indicating such chemical will be\nconsidered "developed" for purposes hereof upon the completion of the standard validation protocol and an algorithm defining the devices'(s') performance has\nbeen developed and/or an acceptable color match(s) has been identified in the case of qualitative device(s). Bonus shall be paid to Employee within thirty (30)\ndays after monitoring device has been "developed". (c) Royalty. By the thirtieth (30th) day after the last day of each calendar year quarter (each a "Royalty\nQuarter"), the Company shall pay to Employee a Royalty (The "Royalty") equal to Two and One-Half Percent (2.5%) of Gross Sales of the Products as defined\nherein for the immediate preceding calendar quarter. A written statement of the value and quantity of each colorimetric device sold during the "Royalty Quarter"\nshall be given to Employee with each quarterly payment. In the event that such a written statement is not provided employee shall have the right to examine any\nof Company's State Sales Tax Reports for sale of Products as defined herein. Employee shall also have the right to examine all books of account recording Gross\nSales as defined herein. The parties expressly agree that the payment of the Royalty as described in this Agreement shall survive any termination of this\nAgreement except as provided in Section 3(f) of this agreement. In the event of bankruptcy either voluntary or involuntary, or the non-payment of Royalty\npayments to the Employee by the Company as specified in this Agreement and not cured in ten (10) days after written notification of delinquency by the\nEmployee, all obligations of Employee under this agreement or which could or might be imposed by statutory or common law shall be extinguished. In the event\nthat the technology required to produce the Product is transferred through sale or any other means to any other entity, the Royalty as defined herein shall be paid\nby such entity. (d) Payment on Death. In the event Employee dies during the Term of Agreement, and so long as this Agreement was not the subject of a notice\nof terminating as provided in Section 3 hereof, the Company shall pay to his estate any Salary, Royalty or Bonus that would have been payable up until the end of\nthe month in which Employee dies. (e) Benefits. Employee shall be entitled to participate in any retirement, profit sharing, hospital, medical, disability and life\ninsurance programs regularly maintained by the Company for its employees. (f) Expense Reimbursement. The Company will reimburse Employee for all ordinary,\nreasonable necessary expense incurred by him in carrying out his duties under this Agreement upon Employee's presentation to the Company from time to time\nof an itemized account of the receipts for such expenses in such form as may be required by the Company; provided, however, such reimbursement shall be\nconditioned upon deductibility by the Company of such expenses from gross income for federal tax purposes. (g) Product Liability. The Employee is in no way\nresponsible for any product liability. The Company accepts full and complete responsibility for the Product and any claims made by the Company regarding the\nProduct or its capabilities or performance, and the Company will maintain at all times product liability insurance specifically protecting the employee against any\nlegal claims made against him in his capacity as developer of the Product. The Company will furnish the Employee with evidence of such insurance and notify\nemployee immediately of any cancellation, modification or amendment thereto. 5. COVENANTS OF EMPLOYEE . (a) Ownership of Trade Secrets, Confidential\nInformation, Proprietary Information and Intellectual Property. Employee agrees that the Trade Secrets, Confidential Information, Proprietary Information,\nIntellectual Property, and all physical embodiments thereof (collectively the "Information") to which the employee has come into possession of as a result of or\nduring the term of his employment by the Company; are, and shall at all times remain, the sole and exclusive property of the Company, and that any of the\nInformation produced or developed by him as an employee of the Company shall be considered work for hire under United States law. Employee agrees to (a)\nimmediately disclose or transfer to the Company all Information developed in whole or part by him during the Term, (b) assign to the Company any right, title or\ninterest he may have in such Information, and (c) at the request and expense of the Company, to do all things and sign all documents or instruments reasonably\nnecessary to eliminate any ambiguity as to the ownership of the Company of such Information including, without limitation, providing to the Company his full\ncooperation in any litigation or other proceedings to establish, protect or obtain such rights while he is in the employee of the Company. (b) Non-Disclosure or Use\nof Trade Secrets or Confidential Information. During the term of his employment with the Company and at any and all times following the termination of such\nemployment, Employee agrees not to use, reveal, report, publish, disclose or transfer, directly or indirectly, any Trade Secret or Confidential Information of which\nhe came into possession as a result of his employment by the Company for any purpose including, without limitation, the solicitation of existing company\ncustomers of which the Employee is aware, except in the course of performing duties assigned to him by the Company. (c) Non-Disclosure or Use of Proprietary\nInformation. During the term of his employment with the Company and for a period of one (1) year after termination (for whatever reason) of such employment,\nEmployee agrees not to use, reveal, report, publish, disclose or transfer, directly or indirectly, any Proprietary Information for any purpose. (d) No Solicitation.\nEmployee covenants and agrees that, while he is employed by the Company and for a period of two (2) years following termination (for any reason) of such\nemployment, he will not, directly or indirectly, solicit, induce or hire away, or assist any third person or entity in inducing, diverting, soliciting or hiring away, (i) any\nemployee of the Company, whether such employee is employed pursuant to a written contract, is for a determined period or is at will, or (ii) any person or entity\nwhich, at the time of termination of employment, was a client or customer of the Company or with whom or which, at the time of termination of employment, the\nCompany was negotiating regarding the sale or distribution of the Company's services or products. (e) Return of Company Property. Employee covenants and\nagrees that, upon termination (for any reason) of this Agreement, he will return or turn over to the Company all physical embodiments of the Information including\nwithout limitation, all notes, data reference materials sketches, drawings, memoranda, records, laboratory equipment, chemicals, tools, implements, computers,\ndrives, diskettes, tapes, renditions, models, mock-ups, prototypes, evaluations, measurements, and tests, and all originals copies or other physical embodiments\nthereof, which in any way relate to any of the Information or to the Business of the Company which belong to the Company or were developed or generated while\nin the employment of the Company. (f) Additional Provisions. Employee recognizes and agrees: (i) that the covenants and agreements contained in Section 5 of\nthis Agreement are of the essence of this Agreement; (ii) that each of such covenants is reasonable and necessary to protect and preserve the interests and\nproperties of the Company and the Business of the Company; (iii) that loss and damage may be suffered by the Company should Employee breach any of such\ncovenants or agreements; (iv) that each of such covenants and agreements is separate, distinct and severable from the other and remaining provisions of this\nAgreement. 6. MISCELLANEOUS PROVISIONS . (a) Binding Effect. This Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto\nand their respective heirs, successors , assigns and legal representatives. (b) Severability. The provisions of this Agreement shall be deemed severable and the\ninvalidity or the unenforceability of any one or more of the provisions hereof shall not affect the validity or enforceability of the other provisions hereof. (d) Notices.\nAll notices and other communications which are required or permitted hereunder shall be in writing and shall be sufficient if delivered by hand or mailed by\ncertified mail return receipt requested, postage prepaid, to the addresses set forth below or to such other address as the parties shall specify by notice in writing\nto the other party. All such notices and communications made by mail shall be deemed to have been received on the date of actual delivery or on the fifth (5th)\nbusiness day after the mailing thereof, whichever is earlier: Company: Envirometrics Products Company 1019 Bankton Dr. Charleston, SC 29406 Employee:\nThomas A. Wilkie 1370 Lamont Norwood Rd. Pittsboro, North Carolina 27312 (e) Entire Agreement. This Agreement contains the entire agreement between the\nparties hereto and supersedes and terminates any and all prior written agreements and understandings between the parties hereto with respect to the\nemployment of, or work performed in the capacity of an independent contractor by the Employee or payments to Employee by the Company for any reason or\nwork product, including, without limitation, the Employee Invention Assignment Agreement and the Employee Non-Disclosure and Non-Competition Agreement,\nboth Agreements executed on or about March 13, 1992 , and any subsequent amendments, modifications and understandings related thereto. (f) Amendments\nand Waivers. This Agreement may not be modified or amended except by an instrument or instruments in writing signed by the party against whom enforcement\nof any such modification or amendment is sought, Either party hereto may by an instrument in writing waive compliance by the other party of any other provision\nof this Agreement on the part of such other party. The waiver by any party of a breach of any term or provision shall not be construed as a waiver of any\nsubsequent breach. (g) Section Headings. The section headings contained in this Agreement are for reference purposes only and shall not be deemed to control\nor affect the meaning or construction of any provision. The Company is a corporation in good standing under the laws of South Carolina and is duly authorized to\ncarry on the business presently conducted by it and its signers of this Agreement are properly authorized to execute, deliver and perform this Agreement on\nbehalf of the Company and that this Agreement constitutes a valid and legally binding obligation of the Company. IN WITNESS WHEREOF, the parties hereto\nhave executed this Agreement to be effective as of the date and year first written above. ATTEST The Company: Envirometrics Products Company\n__________________________\n__________________________________________\nSecretary By: Walter H. Elliott, III , President [CORPORATE SEAL]\nEMPLOYEE: __________________________________________ Thomas A. Wilkie
+4dca42c1cd7e821ce47a4733959b06d3.pdf	effective_date jurisdiction party term	SCHEDULE D\nCOPY OF EXECUTED CONFIDENTIALITY AGREEMENT\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement is made as of March 22, 2011 (“the Effective Date) between AmerisourceBergen Specialty Group,\nInc., with offices at 3101 Gaylord Parkway, Frisco, TX 75034 and Corcept Therapeutics, Inc., with offices at 149 Commonwealth Drive, Menlo\nPark, CA 94025.\nBackground\nThe parties are interested in evaluating a potential venture relating to warehousing, distribution and other commercial services (the “Venture”).\nIn order to facilitate such evaluation, either party (“Disclosing Party”) may disclose to the other party (“Recipient”) certain of its confidential or\nproprietary information.\n1. Definition of Confidential Information. “Confidential Information” means any confidential or proprietary information that is disclosed or\nmade available by Disclosing Party to Recipient, whether in writing or other tangible form, orally or otherwise. Confidential Information includes\n(a) information about processes, systems, strategic plans, business plans, operating data, financial information and other information and (b) any\nanalysis, compilation, study or other material prepared by Recipient (regardless of the form in which it is maintained) that contains or otherwise\nreflects any information disclosed or made available by Disclosing Party to Recipient.\n2. Exclusions from Confidential Information. Confidential Information does not include information that:\n(a) at the time of disclosure to Recipient, is generally available to the public;\n(b) after disclosure to Recipient, becomes generally available to the public other than as a result of a breach of these provisions by\nRecipient (including any of its affiliates);\n(c) Recipient can establish was already in its possession at the time the information was received from Disclosing Party if its source was\nnot known by Recipient to be bound to an obligation of confidentiality with respect to such information;\n(d) Recipient receives from a third party if its source was not known by Recipient to be bound to an obligation of confidentiality with\nrespect to such information; or\n(e) Recipient can establish was developed independently by Recipient without use, directly or indirectly, of any Confidential\nInformation.\n3. Limitations on Disclosure and Use. Confidential Information must be kept strictly confidential and may not be disclosed or used by\nRecipient except as specifically permitted by this Agreement or as specifically authorized in advance in writing by Disclosing Party. Recipient may\nnot take any action that causes Confidential Information to lose its confidential and proprietary nature or fail to take any reasonable action necessary\nto prevent any Confidential Information from losing its confidential and proprietary nature. Recipient will limit access to Confidential Information to\nits employees, officers, directors or other authorized representatives (or those of its affiliates) who (a) need to know such Confidential Information to\nparticipate in evaluating the Venture and (b) are obligated to\nPage 21\nRecipient to maintain Confidential Information under terms and conditions at least as stringent as those under this Agreement. Recipient will inform\nall such persons of the confidential and proprietary nature of Confidential Information and will take all reasonable steps to ensure they do not breach\ntheir confidentiality obligations, including taking any steps Recipient would take to protect its own similarly confidential information. Recipient will\nbe responsible for any breach of confidentiality obligations by such persons.\n4. Ownership. All Confidential Information and deviations of Confidential Information will remain the sole and exclusive property of\nDisclosing Party and, except as provided, no license or other right to it will be implied by this Agreement. If Recipient has prepared any analysis,\ncompilation, study or other material (regardless of form) that contains or otherwise reflects any Confidential Information, then such material will be\nowned solely by Disclosing Party and treated as its Confidential Information under this Agreement.\n5. No Representations or Warranties. Recipient acknowledges that Disclosing Party makes no representations of warranties, express or\nimplied, as to the accuracy or completeness of Confidential Information and Recipient agrees that Disclosing Party will have no liability for any\nerrors or omissions in such information.\n6. Return or Destruction of Confidential Information. Upon Disclosing Party’s request, Recipient will promptly deliver to Disclosing Party\nor destroy all Confidential Information (including material that contains or otherwise reflects Confidential Information) in its custody or control and\nwill deliver it to Disclosing Party within ten (10) business days after such request or deliver a written statement from a corporate officer certifying it\nhas destroyed all of Disclosing Party’s Confidential Information. Unless authorized in writing by Disclosing Party Recipient will not retain any copy,\nextract or summary of Confidential Information (including material that contains or otherwise reflects Confidential Information). The obligation to\ndestroy or return shall not apply to Confidential Information that is stored on back-up tapes and similar media that are not readily accessible to\nRecipient.\n7. Equitable Relief. Each party acknowledges that, when it is Recipient, money damages would not be a sufficient remedy for Disclosing\nParty in the event of any breach of these provisions and that Disclosing Party is entitled to seek specific performance and injunctive or other\nequitable relief as a remedy for any such breach. Recipient further agrees to waive any requirement for the posting of any bond in connection with\nany such remedy. Such remedy will be in addition to any other available remedies at law or in equity.\n8. Disclosures Required by Law. If Recipient is required by law to disclose any Confidential Information, Recipient will give Disclosing\nParty prompt notice and will use all reasonable means to obtain confidential treatment for any Confidential Information that it is required disclose\nbefore making any such disclosure. If Recipient cannot assure confidential treatment and it has exhausted all reasonable efforts to do so, Recipient\nmay disclose Confidential Information to the extent it is required by law to disclose the information it discloses. Notwithstanding the foregoing,\nDisclosing Party may request Recipient to take additional steps to seek confidential treatment before Recipient discloses Confidential Information\neven though Recipient has otherwise exhausted all reasonable efforts to do so. In such event, Recipient will undertake such additional steps at\nDisclosing Party’s expense.\n9. Term of this Agreement. This Agreement covers Confidential Information that is disclosed by Disclosing Party to Recipient until the first\nanniversary of the Effective Date. Recipient’s obligation to protect Confidential Information disclosed during such one-year period expires three\nyears from the Effective Date.\nPage 22\n10. Subsequent Agreement. If the patties pursue the Venture, they anticipate entering into a definitive agreement that will set forth their\nrespective obligations. Such agreement may incorporate this Agreement by reference, may supplement or modify it or may supersede it.\n11. Governing Law; Jurisdiction; Attorneys’ Fees. Internal law of the State of Texas applies to this Agreement. Each of the parties agrees\nthat any legal or equitable action relating to this Agreement shall be brought, and each of the parties consents to personal jurlsdictlon1 in any court of\ngeneral jurisdiction in Collin County, Texas, and waives any objection which it may have to the laying of venue of any such suit, action or\nproceeding in such court. The successful party in any legal action arising our of this Agreement may recover all costs, including reasonable\nattorneys’ fees.\n12. Notices. Any notice required or permitted under this Agreement will be in writing and will be effective upon actual receipt. Notices shall\nbe sent to the addresses set forth in the introductory paragraph of this Agreement, and a copy of any notice to AmerisourceBergen Specialty Group,\nInc. shall also be sent to AmerisourceBergen Specially Group, Inc., Attn: Group Counsel, lN-El86, 3101 Gaylord Parkway, Frisco, TX 75034.\n13. Interpretation. This Agreement is the entire agreement between the parties with respect to its subject matter and supersedes any prior\nagreement, written or oral. This Agreement will bind and benefit the parties and their successors. This Agreement may be assigned by\nAmerisourceBergen Specialty Group, Inc. to any affiliate hut may not be otherwise assigned without the consent of the other party, which consent\nwill not be unreasonably withheld. For purposes of Agreement, “affiliate” means any company or person that directly or indirectly controls, is\ncontrolled by or under common control with the referenced party, as the case may be. If any provision is invalid, validity of remaining provisions\nwill not be affected. This Agreement may not be amended or modified except in a writing signed by both paties. Any waiver or delay by any party in\nenforcing this Agreement will not deprive it of the right to take appropriate action at a later time or due to another breach. Captions in this\nAgreement are intended for convenience of reference only. Words, regardless of the number and gender specifically used, will be construed to\ninclude any other number, singular or plural, and any gender, masculine, feminine, or neuter, as the context requires. “And” includes “or.” “Or” is\ndisjunctive but not necessarily exclusive. “Including” means “including but not limited to.” This Agreement may be executed in counterparts. Any\nprovision of this Agreement may survive this Agreement’s expiration or earlier termination if its context shows that the parties intended it to survive.\nIN WITNESS WHEREOF, the parties have executed this Mutual Non-Disclosure Agreement as of its Effective Date.\nAmerisourceBergen Specialty Group, Inc.\nCorcept Therapeutics, Inc.\nBy: /s/ James D. Frary\nBy: /s/ Joseph K. Belanoff\nTitle: James Frary\nTitle: Joseph K. Belanoff, M.D.\nTitle: President, ABSG\nTitle: Chief Executive Officer\nPage 23	SCHEDULE D\nCOPY OF EXECUTED CONFIDENTIALITY AGREEMENT\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement is made as of March 22, 2011 (“the Effective Date) between AmerisourceBergen Specialty Group,\nInc., with offices at 3101 Gaylord Parkway, Frisco, TX 75034 and Corcept Therapeutics, Inc., with offices at 149 Commonwealth Drive, Menlo\nPark, CA 94025.\nBackground\nThe parties are interested in evaluating a potential venture relating to warehousing, distribution and other commercial services (the “Venture”).\nIn order to facilitate such evaluation, either party (“Disclosing Party”) may disclose to the other party (“Recipient”) certain of its confidential or\nproprietary information.\n1. Definition of Confidential Information. “Confidential Information” means any confidential or proprietary information that is disclosed or\nmade available by Disclosing Party to Recipient, whether in writing or other tangible form, orally or otherwise. Confidential Information includes\n(a) information about processes, systems, strategic plans, business plans, operating data, financial information and other information and (b) any\nanalysis, compilation, study or other material prepared by Recipient (regardless of the form in which it is maintained) that contains or otherwise\nreflects any information disclosed or made available by Disclosing Party to Recipient.\n2. Exclusions from Confidential Information. Confidential Information does not include information that:\n(a) at the time of disclosure to Recipient, is generally available to the public;\n(b) after disclosure to Recipient, becomes generally available to the public other than as a result of a breach of these provisions by\nRecipient (including any of its affiliates);\n(c) Recipient can establish was already in its possession at the time the information was received from Disclosing Party if its source was\nnot known by Recipient to be bound to an obligation of confidentiality with respect to such information;\n(d) Recipient receives from a third party if its source was not known by Recipient to be bound to an obligation of confidentiality with\nrespect to such information; or\n(e) Recipient can establish was developed independently by Recipient without use, directly or indirectly, of any Confidential\nInformation.\n3. Limitations on Disclosure and Use. Confidential Information must be kept strictly confidential and may not be disclosed or used by\nRecipient except as specifically permitted by this Agreement or as specifically authorized in advance in writing by Disclosing Party. Recipient may\nnot take any action that causes Confidential Information to lose its confidential and proprietary nature or fail to take any reasonable action necessary\nto prevent any Confidential Information from losing its confidential and proprietary nature. Recipient will limit access to Confidential Information to\nits employees, officers, directors or other authorized representatives (or those of its affiliates) who (a) need to know such Confidential Information to\nparticipate in evaluating the Venture and (b) are obligated to\nPage 21\nRecipient to maintain Confidential Information under terms and conditions at least as stringent as those under this Agreement. Recipient will inform\nall such persons of the confidential and proprietary nature of Confidential Information and will take all reasonable steps to ensure they do not breach\ntheir confidentiality obligations, including taking any steps Recipient would take to protect its own similarly confidential information. Recipient will\nbe responsible for any breach of confidentiality obligations by such persons.\n4. Ownership. All Confidential Information and deviations of Confidential Information will remain the sole and exclusive property of\nDisclosing Party and, except as provided, no license or other right to it will be implied by this Agreement. If Recipient has prepared any analysis,\ncompilation, study or other material (regardless of form) that contains or otherwise reflects any Confidential Information, then such material will be\nowned solely by Disclosing Party and treated as its Confidential Information under this Agreement.\n5. No Representations or Warranties. Recipient acknowledges that Disclosing Party makes no representations of warranties, express or\nimplied, as to the accuracy or completeness of Confidential Information and Recipient agrees that Disclosing Party will have no liability for any\nerrors or omissions in such information.\n6. Return or Destruction of Confidential Information. Upon Disclosing Party’s request, Recipient will promptly deliver to Disclosing Party\nor destroy all Confidential Information (including material that contains or otherwise reflects Confidential Information) in its custody or control and\nwill deliver it to Disclosing Party within ten (10) business days after such request or deliver a written statement from a corporate officer certifying it\nhas destroyed all of Disclosing Party’s Confidential Information. Unless authorized in writing by Disclosing Party Recipient will not retain any copy,\nextract or summary of Confidential Information (including material that contains or otherwise reflects Confidential Information). The obligation to\ndestroy or return shall not apply to Confidential Information that is stored on back-up tapes and similar media that are not readily accessible to\nRecipient.\n7. Equitable Relief. Each party acknowledges that, when it is Recipient, money damages would not be a sufficient remedy for Disclosing\nParty in the event of any breach of these provisions and that Disclosing Party is entitled to seek specific performance and injunctive or other\nequitable relief as a remedy for any such breach. Recipient further agrees to waive any requirement for the posting of any bond in connection with\nany such remedy. Such remedy will be in addition to any other available remedies at law or in equity.\n8. Disclosures Required by Law. If Recipient is required by law to disclose any Confidential Information, Recipient will give Disclosing\nParty prompt notice and will use all reasonable means to obtain confidential treatment for any Confidential Information that it is required disclose\nbefore making any such disclosure. If Recipient cannot assure confidential treatment and it has exhausted all reasonable efforts to do so, Recipient\nmay disclose Confidential Information to the extent it is required by law to disclose the information it discloses. Notwithstanding the foregoing,\nDisclosing Party may request Recipient to take additional steps to seek confidential treatment before Recipient discloses Confidential Information\neven though Recipient has otherwise exhausted all reasonable efforts to do so. In such event, Recipient will undertake such additional steps at\nDisclosing Party’s expense.\n9. Term of this Agreement. This Agreement covers Confidential Information that is disclosed by Disclosing Party to Recipient until the first\nanniversary of the Effective Date. Recipient’s obligation to protect Confidential Information disclosed during such one-year period expires three\nyears from the Effective Date.\nPage 22\n10. Subsequent Agreement. If the patties pursue the Venture, they anticipate entering into a definitive agreement that will set forth their\nrespective obligations. Such agreement may incorporate this Agreement by reference, may supplement or modify it or may supersede it.\n11. Governing Law; Jurisdiction; Attorneys’ Fees. Internal law of the State of Texas applies to this Agreement. Each of the parties agrees\nthat any legal or equitable action relating to this Agreement shall be brought, and each of the parties consents to personal jurlsdictlon1 in any court of\ngeneral jurisdiction in Collin County, Texas, and waives any objection which it may have to the laying of venue of any such suit, action or\nproceeding in such court. The successful party in any legal action arising our of this Agreement may recover all costs, including reasonable\nattorneys’ fees.\n12. Notices. Any notice required or permitted under this Agreement will be in writing and will be effective upon actual receipt. Notices shall\nbe sent to the addresses set forth in the introductory paragraph of this Agreement, and a copy of any notice to AmerisourceBergen Specialty Group,\nInc. shall also be sent to AmerisourceBergen Specially Group, Inc., Attn: Group Counsel, IN-E186, 3101 Gaylord Parkway, Frisco, TX 75034.\n13. Interpretation. This Agreement is the entire agreement between the parties with respect to its subject matter and supersedes any prior\nagreement, written or oral. This Agreement will bind and benefit the parties and their successors. This Agreement may be assigned by\nAmerisourceBergen Specialty Group, Inc. to any affiliate hut may not be otherwise assigned without the consent of the other party, which consent\nwill not be unreasonably withheld. For purposes of Agreement, “affiliate” means any company or person that directly or indirectly controls, is\ncontrolled by or under common control with the referenced party, as the case may be. If any provision is invalid, validity of remaining provisions\nwill not be affected. This Agreement may not be amended or modified except in a writing signed by both paties. Any waiver or delay by any party in\nenforcing this Agreement will not deprive it of the right to take appropriate action at a later time or due to another breach. Captions in this\nAgreement are intended for convenience of reference only. Words, regardless of the number and gender specifically used, will be construed to\ninclude any other number, singular or plural, and any gender, masculine, feminine, or neuter, as the context requires. “And” includes “or.” “Or” is\ndisjunctive but not necessarily exclusive. “Including” means “including but not limited to.” This Agreement may be executed in counterparts. Any\nprovision of this Agreement may survive this Agreement’s expiration or earlier termination if its context shows that the parties intended it to survive.\nIN WITNESS WHEREOF, the parties have executed this Mutual Non-Disclosure Agreement as of its Effective Date.\nAmerisourceBergen Specialty Group, Inc. Corcept Therapeutics, Inc.\nBy: /s/James D. Frary By: /s/Joseph K. Belanoff\nTitle: James Frary Title: Joseph K. Belanoff, M.D.\nTitle: President, ABSG Title: Chief Executive Officer\nPage 23	SCHEDULE D\nCOPY OF EXECUTED CONFIDENTIALITY AGREEMENT\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement is made as of March 22, 2011 ("the Effective Date) between AmerisourceBergen Specialty Group,\nInc., with offices at 3101 Gaylord Parkway, Frisco, TX 75034 and Corcept Therapeutics, Inc., with offices at 149 Commonwealth Drive, Menlo\nPark, CA 94025.\nBackground\nThe parties are interested in evaluating a potential venture relating to warehousing, distribution and other commercial services (the "Venture").\nIn order to facilitate such evaluation, either party ("Disclosing Party") may disclose to the other party ("Recipient") certain of its confidential or\nproprietary information.\n1. Definition of Confidential Information. "Confidential Information" means any confidential or proprietary information that is disclosed or\nmade available by Disclosing Party to Recipient, whether in writing or other tangible form, orally or otherwise. Confidential Information includes\n(a) information about processes, systems, strategic plans, business plans, operating data, financial information and other information and (b) any\nanalysis, compilation, study or other material prepared by Recipient (regardless of the form in which it is maintained) that contains or otherwise\nreflects any information disclosed or made available by Disclosing Party to Recipient.\n2. Exclusions from Confidential Information. Confidential Information does not include information that:\n(a) at the time of disclosure to Recipient, is generally available to the public;\n(b) after disclosure to Recipient, becomes generally available to the public other than as a result of a breach of these provisions by\nRecipient (including any of its affiliates);\n(c) Recipient can establish was already in its possession at the time the information was received from Disclosing Party if its source was\nnot known by Recipient to be bound to an obligation of confidentiality with respect to such information;\n(d) Recipient receives from a third party if its source was not known by Recipient to be bound to an obligation of confidentiality with\nrespect to such information; or\n(e) Recipient can establish was developed independently by Recipient without use, directly or indirectly, of any Confidential\nInformation.\n3. Limitations on Disclosure and Use. Confidential Information must be kept strictly confidential and may not be disclosed or used by\nRecipient except as specifically permitted by this Agreement or as specifically authorized in advance in writing by Disclosing Party. Recipient may\nnot take any action that causes Confidential Information to lose its confidential and proprietary nature or fail to take any reasonable action necessary\nto prevent any Confidential Information from losing its confidential and proprietary nature. Recipient will limit access to Confidential Information to\nits employees, officers, directors or other authorized representatives (or those of its affiliates) who (a) need to know such Confidential Information to\nparticipate in evaluating the Venture and (b) are obligated to\nPage 21\nRecipient to maintain Confidential Information under terms and conditions at least as stringent as those under this Agreement. Recipient will inform\nall such persons of the confidential and proprietary nature of Confidential Information and will take all reasonable steps to ensure they do not breach\ntheir confidentiality obligations, including taking any steps Recipient would take to protect its own similarly confidential information. Recipient\nwill\nbe responsible for any breach of confidentiality obligations by such persons.\n4.\nOwnership. All Confidential Information and deviations of Confidential Information will remain the sole and exclusive property\nof\nDisclosing Party and, except as provided, no license or other right to it will be implied by this Agreement. If Recipient has prepared any analysis,\ncompilation, study or other material (regardless of form) that contains or otherwise reflects any Confidential Information, then such material will\nbe\nowned solely by Disclosing Party and treated as its Confidential Information under this Agreement.\n5. No Representations or Warranties. Recipient acknowledges that Disclosing Party makes no representations of warranties, express or\nimplied, as to the accuracy or completeness of Confidential Information and Recipient agrees that Disclosing Party will have no liability for any\nerrors or omissions in such information.\n6. Return or Destruction of Confidential Information. Upon Disclosing Party's request, Recipient will promptly deliver to Disclosing Party\nor destroy all Confidential Information (including material that contains or otherwise reflects Confidential Information) in its custody or control and\nwill deliver it to Disclosing Party within ten (10) business days after such request or deliver a written statement from a corporate officer certifying\nit\nhas\ndestroyed all of Disclosing Party's Confidential Information. Unless authorized in writing by Disclosing Party Recipient will not retain any copy,\nextract or summary of Confidential Information (including material that contains or otherwise reflects Confidential Information). The obligation\nto\ndestroy or return shall not apply to Confidential Information that is stored on back-up tapes and similar media that are not readily accessible to\nRecipient.\n7. Equitable Relief. Each party acknowledges that, when it is Recipient, money damages would not be a sufficient remedy for Disclosing\nParty in the event of any breach of these provisions and that Disclosing Party is entitled to seek specific performance and injunctive or other\nequitable relief as a remedy for any such breach. Recipient further agrees to waive any requirement for the posting of any bond in connection with\nany such remedy. Such remedy will be in addition to any other available remedies at law or in equity.\n8. Disclosures Required by Law. If Recipient is required by law to disclose any Confidential Information, Recipient will give Disclosing\nParty prompt notice and will use all reasonable means to obtain confidential treatment for any Confidential Information that it is required disclose\nbefore making any such disclosure. If Recipient cannot assure confidential treatment and it has exhausted all reasonable efforts to do so, Recipient\nmay disclose Confidential Information to the extent it is required by law to disclose the information it discloses. Notwithstanding the foregoing,\nDisclosing Party may request Recipient to take additional steps to seek confidential treatment before Recipient discloses Confidential Information\neven though Recipient has otherwise exhausted all reasonable efforts to do so. In such event, Recipient will undertake such additional steps at\nDisclosing Party's expense.\n9. Term of this Agreement. This Agreement covers Confidential Information that is disclosed by Disclosing Party to Recipient until the first\nanniversary of the Effective Date. Recipient's obligation to protect Confidential Information disclosed during such one-year period expires three\nyears from the Effective Date.\nPage 22\n10. Subsequent Agreement. If the patties pursue the Venture, they anticipate entering into a definitive agreement that will set forth their\nrespective obligations. Such agreement may incorporate this Agreement by reference, may supplement or modify it or may supersede it.\n11. Governing Law; Jurisdiction; Attorneys' Fees. Internal law of the State of Texas applies to this Agreement. Each of the parties agrees\nthat any legal or equitable action relating to this Agreement shall be brought, and each of the parties consents to personal jurlsdictlon1 in any court of\ngeneral jurisdiction in Collin County, Texas, and waives any objection which it may have to the laying of venue of any such suit, action or\nproceeding in such court. The successful party in any legal action arising our of this Agreement may recover all costs, including reasonable\nattorneys' fees.\n12.\nNotices. Any notice required or permitted under this Agreement will be in writing and will be effective upon actual receipt. Notices shall\nbe sent to the addresses set forth in the introductory paragraph of this Agreement, and a copy of any notice to AmerisourceBergen Specialty Group,\nInc. shall also be sent to AmerisourceBergen Specially Group, Inc., Attn: Group Counsel, IN-E186, 3101 Gaylord Parkway, Frisco, TX 75034.\n13 Interpretation. This Agreement is the entire agreement between the parties with respect to its subject matter and supersedes any prior\nagreement, written or oral. This Agreement will bind and benefit the parties and their successors. This Agreement may be assigned by\nAmerisourceBerger Specialty Group, Inc. to any affiliate hut may not be otherwise assigned without the consent of the other party, which consent\nwill not be unreasonably withheld. For purposes of Agreement, "affiliate" means any company or person that directly or indirectly controls,\nis\ncontrolled by or under common control with the referenced party, as the case may be. If any provision is invalid, validity of remaining provisions\nwill not be affected. This Agreement may not be amended or modified except in a writing signed by both paties. Any waiver or delay by any party in\nenforcing this Agreement will not deprive it of the right to take appropriate action at a later time or due to another breach. Captions in this\nAgreement\nare intended for convenience of reference only. Words, regardless of the number and gender specifically used, will be construed\nto\ninclude any other number, singular or plural, and any gender, masculine, feminine, or neuter, as the context requires. "And" includes "or." "Or" is\ndisjunctive but not necessarily exclusive. "Including" means "including but not limited to." This Agreement may be executed in counterparts. Any\nprovision of this Agreement may survive this Agreement's expiration or earlier termination if its context shows that the parties intended it to survive.\nIN WITNESS WHEREOF, the parties have executed this Mutual Non-Disclosure Agreement as of its Effective Date.\nAmerisourceBergen Specialty Group, Inc.\nCorcept Therapeutics, Inc.\nBy:\n/s/ James D. Frary\nBy:\n/s/ Joseph K. Belanoff\nTitle: James Frary\nTitle: Joseph K. Belanoff, M.D.\nTitle: President, ABSG\nTitle: Chief Executive Officer\nPage 23	SCHEDULE D\nCOPY OF EXECUTED CONFIDENTIALITY AGREEMENT\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement is made as of March 22, 2011 (“the Effective Date) between AmerisourceBergen Specialty Group,\nInc., with offices at 3101 Gaylord Parkway, Frisco, TX 75034 and Corcept Therapeutics, Inc., with offices at 149 Commonwealth Drive, Menlo\nPark, CA 94025.\nBackground\nThe parties are interested in evaluating a potential venture relating to warehousing, distribution and other commercial services (the “Venture”).\nIn order to facilitate such evaluation, either party (“Disclosing Party”) may disclose to the other party (“Recipient”) certain of its confidential or\nproprietary information.\n1. Definition of Confidential Information. “Confidential Information” means any confidential or proprietary information that is disclosed or\nmade available by Disclosing Party to Recipient, whether in writing or other tangible form, orally or otherwise. Confidential Information includes\n(a) information about processes, systems, strategic plans, business plans, operating data, financial information and other information and (b) any\nanalysis, compilation, study or other material prepared by Recipient (regardless of the form in which it is maintained) that contains or otherwise\nreflects any information disclosed or made available by Disclosing Party to Recipient.\n2. Exclusions from Confidential Information. Confidential Information does not include information that:\n(a) at the time of disclosure to Recipient, is generally available to the public;\n(b) after disclosure to Recipient, becomes generally available to the public other than as a result of a breach of these provisions by\nRecipient (including any of its affiliates);\n(c) Recipient can establish was already in its possession at the time the information was received from Disclosing Party if its source was\nnot known by Recipient to be bound to an obligation of confidentiality with respect to such information;\n(d) Recipient receives from a third party if its source was not known by Recipient to be bound to an obligation of confidentiality with\nrespect to such information; or\n(e) Recipient can establish was developed independently by Recipient without use, directly or indirectly, of any Confidential\nInformation.\n3. Limitations on Disclosure and Use. Confidential Information must be kept strictly confidential and may not be disclosed or used by\nRecipient except as specifically permitted by this Agreement or as specifically authorized in advance in writing by Disclosing Party. Recipient may\nnot take any action that causes Confidential Information to lose its confidential and proprietary nature or fail to take any reasonable action necessary\nto prevent any Confidential Information from losing its confidential and proprietary nature. Recipient will limit access to Confidential Information to\nits employees, officers, directors or other authorized representatives (or those of its affiliates) who (a) need to know such Confidential Information to\nparticipate in evaluating the Venture and (b) are obligated to\nPage 21\nRecipient to maintain Confidential Information under terms and conditions at least as stringent as those under this Agreement. Recipient will inform\nall such persons of the confidential and proprietary nature of Confidential Information and will take all reasonable steps to ensure they do not breach\ntheir confidentiality obligations, including taking any steps Recipient would take to protect its own similarly confidential information. Recipient will\nbe responsible for any breach of confidentiality obligations by such persons.\n4. Ownership. All Confidential Information and deviations of Confidential Information will remain the sole and exclusive property of\nDisclosing Party and, except as provided, no license or other right to it will be implied by this Agreement. If Recipient has prepared any analysis,\ncompilation, study or other material (regardless of form) that contains or otherwise reflects any Confidential Information, then such material will be\nowned solely by Disclosing Party and treated as its Confidential Information under this Agreement.\n5. No Representations or Warranties. Recipient acknowledges that Disclosing Party makes no representations of warranties, express or\nimplied, as to the accuracy or completeness of Confidential Information and Recipient agrees that Disclosing Party will have no liability for any\nerrors or omissions in such information.\n6. Return or Destruction of Confidential Information. Upon Disclosing Party’s request, Recipient will promptly deliver to Disclosing Party\nor destroy all Confidential Information (including material that contains or otherwise reflects Confidential Information) in its custody or control and\nwill deliver it to Disclosing Party within ten (10) business days after such request or deliver a written statement from a corporate officer certifying it\nhas destroyed all of Disclosing Party’s Confidential Information. Unless authorized in writing by Disclosing Party Recipient will not retain any copy,\nextract or summary of Confidential Information (including material that contains or otherwise reflects Confidential Information). The obligation to\ndestroy or return shall not apply to Confidential Information that is stored on back-up tapes and similar media that are not readily accessible to\nRecipient.\n7. Equitable Relief. Each party acknowledges that, when it is Recipient, money damages would not be a sufficient remedy for Disclosing\nParty in the event of any breach of these provisions and that Disclosing Party is entitled to seek specific performance and injunctive or other\nequitable relief as a remedy for any such breach. Recipient further agrees to waive any requirement for the posting of any bond in connection with\nany such remedy. Such remedy will be in addition to any other available remedies at law or in equity.\n8. Disclosures Required by Law. If Recipient is required by law to disclose any Confidential Information, Recipient will give Disclosing\nParty prompt notice and will use all reasonable means to obtain confidential treatment for any Confidential Information that it is required disclose\nbefore making any such disclosure. If Recipient cannot assure confidential treatment and it has exhausted all reasonable efforts to do so, Recipient\nmay disclose Confidential Information to the extent it is required by law to disclose the information it discloses. Notwithstanding the foregoing,\nDisclosing Party may request Recipient to take additional steps to seek confidential treatment before Recipient discloses Confidential Information\neven though Recipient has otherwise exhausted all reasonable efforts to do so. In such event, Recipient will undertake such additional steps at\nDisclosing Party’s expense.\n9. Term of this Agreement. This Agreement covers Confidential Information that is disclosed by Disclosing Party to Recipient until the first\nanniversary of the Effective Date. Recipient’s obligation to protect Confidential Information disclosed during such one-year period expires three\nyears from the Effective Date.\nPage 22\n10. Subsequent Agreement. If the patties pursue the Venture, they anticipate entering into a definitive agreement that will set forth their\nrespective obligations. Such agreement may incorporate this Agreement by reference, may supplement or modify it or may supersede it.\n11. Governing Law; Jurisdiction; Attorneys’ Fees. Internal law of the State of Texas applies to this Agreement. Each of the parties agrees\nthat any legal or equitable action relating to this Agreement shall be brought, and each of the parties consents to personal jurlsdictlon1 in any court of\ngeneral jurisdiction in Collin County, Texas, and waives any objection which it may have to the laying of venue of any such suit, action or\nproceeding in such court. The successful party in any legal action arising our of this Agreement may recover all costs, including reasonable\nattorneys’ fees.\n12. Notices. Any notice required or permitted under this Agreement will be in writing and will be effective upon actual receipt. Notices shall\nbe sent to the addresses set forth in the introductory paragraph of this Agreement, and a copy of any notice to AmerisourceBergen Specialty Group,\nInc. shall also be sent to AmerisourceBergen Specially Group, Inc., Attn: Group Counsel, lN-El86, 3101 Gaylord Parkway, Frisco, TX 75034.\n13. Interpretation. This Agreement is the entire agreement between the parties with respect to its subject matter and supersedes any prior\nagreement, written or oral. This Agreement will bind and benefit the parties and their successors. This Agreement may be assigned by\nAmerisourceBergen Specialty Group, Inc. to any affiliate hut may not be otherwise assigned without the consent of the other party, which consent\nwill not be unreasonably withheld. For purposes of Agreement, “affiliate” means any company or person that directly or indirectly controls, is\ncontrolled by or under common control with the referenced party, as the case may be. If any provision is invalid, validity of remaining provisions\nwill not be affected. This Agreement may not be amended or modified except in a writing signed by both paties. Any waiver or delay by any party in\nenforcing this Agreement will not deprive it of the right to take appropriate action at a later time or due to another breach. Captions in this\nAgreement are intended for convenience of reference only. Words, regardless of the number and gender specifically used, will be construed to\ninclude any other number, singular or plural, and any gender, masculine, feminine, or neuter, as the context requires. “And” includes “or.” “Or” is\ndisjunctive but not necessarily exclusive. “Including” means “including but not limited to.” This Agreement may be executed in counterparts. Any\nprovision of this Agreement may survive this Agreement’s expiration or earlier termination if its context shows that the parties intended it to survive.\nIN WITNESS WHEREOF, the parties have executed this Mutual Non-Disclosure Agreement as of its Effective Date.\nAmerisourceBergen Specialty Group, Inc.\nCorcept Therapeutics, Inc.\nBy: /s/ James D. Frary\nBy: /s/ Joseph K. Belanoff\nTitle: James Frary\nTitle: Joseph K. Belanoff, M.D.\nTitle: President, ABSG\nTitle: Chief Executive Officer\nPage 23
+4dd5eca6802e0f03214db3dfd4881638.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 9 d272786dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT (the “Agreement”)\nIn connection with a possible transaction, Landry’s, Inc. (the “Recipient”) and Morton’s Restaurant Group Inc. (the “Company”), agree as\nfollows:\n1. Evaluation Material. In connection with a possible negotiated transaction by the Company (the “Transaction”), the Company and its\nrepresentatives, including Jefferies & Company, Inc. (“Jefferies”), may furnish the Recipient, in writing and orally, certain information concerning\nthe current and possible future business, operations and finances of the Company and other related information, including, but not limited to,\ninformation related to the Transaction or other potential future capital raising plans of the Company (any such information, the “Evaluation\nMaterial”). The Evaluation Material may contain, and the fact that a Transaction is being contemplated may constitute, material, nonpublic\ninformation within the meaning of the U.S. federal securities laws. The Recipient acknowledges that the U.S . federal securities laws and other laws\nprohibit any person who has any such material, non-public information about a company from purchasing or selling securities of that company or\nfrom communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell such securities.\n2. Limited Use of Evaluation Material. The Recipient agrees to use the Evaluation Material solely in connection with its consideration of a\nTransaction and for no other purpose.\n3. Confidentiality. The Recipient agrees to keep the Evaluation Material confidential and agrees to not disclose it to any other person, other\nthan those of its directors, officers, employees, partners, agents and advisors (such persons, the “Representatives”) who need to know such\ninformation to assist the Recipient in determining whether to participate in a Transaction; provided that, the Recipient may disclose, such Evaluation\nMaterial (a) if it is or becomes generally available to the public without any violation of this Agreement on the part of the Recipient or anyone to\nwhom it discloses Evaluation Material; (b) if it becomes available to the Recipient on a non-confidential basis from a source which is not known to\nRecipient, after reasonable inquiry, to be prohibited from disclosing any portion of the Evaluation Material to the Recipient; (c) as required by law or\nregulation, provided that the Recipient will provide the Company with prompt prior notice so that the Company may seek a protective order or other\nappropriate remedy and/or waive compliance with the provisions of this Agreement; and (d) which was or is independently developed by Recipient\nwithout using the Evaluation Material or violating its obligations hereunder. As a condition to the furnishing of Evaluation Material to the\nRepresentatives of Recipient, Recipient shall cause its Representatives to treat such information in accordance with the provisions of this Agreement\nand to perform or to comply with the obligations of Recipient with respect to the Evaluation Material as contemplated hereby. Recipient agrees that\nit will be fully responsible for any breach of any of the provisions of this Agreement by its Representatives.\nIn considering a Transaction and reviewing the Evaluation Material, the Recipient confirms that it is acting solely on its own behalf and not as\npart of a group with any third parties. The Recipient will not, directly or indirectly, enter into any agreement, arrangement or understanding, or any\ndiscussions that may lead to the same, with any person regarding a possible transaction involving the Company. The Recipient and its\nRepresentatives will not\ndisclose the fact that the Evaluation Material has been made available to them or that discussions or negotiations are taking place between the parties\nconcerning a Transaction or any of the terms, conditions or other facts with respect thereto (including the status thereof).\n4. Standstill. Recipient hereby agrees that for a period of one year from the date hereof (the “Standstill Period”) Recipient and its affiliates\nwill not (and neither Recipient nor its affiliates will assist, or provide or arrange financing to or for, others in order to), directly or indirectly, acting\nalone or in concert with others, unless specifically invited on an unsolicited basis in writing in advance by the Company: (i) acquire or agree, offer,\nseek or propose to acquire (or request permission to do so), ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3\nunder the Exchange Act) of any of the assets or businesses of the Company or any securities issued by the Company, or any option or other right to\nacquire such ownership (including from a third party); (ii) seek or propose to influence or control the management or the policies of the Company or\nto obtain representation on the board of directors (or any committee thereof) of the Company, or solicit or participate in the solicitation of, any\nproxies or consents with respect to any securities of the Company; (iii) seek or propose to have called, or cause to be called, any meeting of\nstockholders of the Company; (iv) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any\nof the foregoing; (v) advise, assist, encourage, act as a financing source for or otherwise invest in any other person in connection with any of the\nforegoing activities; (vi) propose or seek to propose any business combination, recapitalization, restructuring, liquidation, dissolution or other\nextraordinary transaction with respect to the Company or any of its subsidiaries; (vii) disclose any intention, plan or arrangement inconsistent with\nany of the foregoing; or (viii) seek to have the Company amend or waive any provision of this paragraph. Recipient agrees to advise the Company\npromptly of any inquiry or proposal made to it with respect to any of the foregoing. The Recipient will not prohibit or in any way discourage any\nlenders or financial advisors from providing financing or advice to any other bidders or potential bidders except for one financial advisor that the\nRecipient retains. Recipient further agrees that, during the Standstill Period, neither it nor any of its affiliates will, without the written consent of the\nCompany, take any initiative or other action with respect to the Company or any of the subsidiaries of the Company that could require the Company\nto make a public announcement regarding (i) such initiative or other action, (ii) any of the activities, events or circumstances referred to in the\npreceding sentences of this paragraph, (iii) the possibility of the Transaction, any similar transaction or the pursuit of strategic alternatives or any\nstrategic alternative by the Company or (iv) the possibility of Recipient or any other person acquiring control of the Company whether by means of a\nbusiness combination or otherwise. Recipient represents to the Company that as of the date of this Agreement, it, together with its affiliates, owns\napproximately 850,000 shares of common stock of the Company. The obligations set forth in this paragraph are referred to in this Agreement as the\n“Standstill”.\nNotwithstanding anything in the previous paragraph to the contrary, if, on or after the date of this Agreement, any person or group of persons\n(other than Recipient) enters into a definitive agreement with the Company providing for: (a) a merger, share exchange, business combination or\nsimilar extraordinary transaction as a result of which the persons possessing, immediately prior to the consummation of such transaction, beneficial\nownership of the voting securities of the Company entitled to vote generally in elections of directors, would cease to possess, immediately after\nconsummation of such transaction, beneficial ownership of voting\n2\nsecurities entitling them to exercise at least fifty percent (50%) of the total voting power of all outstanding securities entitled to vote generally in\nelections of directors of the Company (or, if not the Company, the surviving person resulting from such transaction); (b) a sale, exchange or lease of\nall or substantially all of the assets of the Company and its subsidiaries (determined on a consolidated basis); or (c) the acquisition (by purchase,\nmerger or otherwise) by any person (including any syndicate or group deemed to be a “person” under Section 13(d)(3) of the Exchange Act and the\nrules promulgated thereunder) of beneficial ownership of voting securities of the Company entitling that person to exercise fifty percent (50%) or\nmore of the total voting power of all outstanding securities entitled to vote generally in elections of directors of the Company (the transactions\ndescribed in clauses (a), (b) and (c) of this paragraph being each hereinafter referred to as a “Third-Party Agreement”); then, the Standstill shall not\nrestrict the Recipient or its affiliates from making a private acquisition proposal solely to the Board of Directors of the Company; provided, however,\nthat the Standstill again shall be fully applicable in accordance with the terms of the prior paragraph upon the termination of the Third-Party\nAgreement. For purposes of this Agreement, “beneficial ownership” shall be determined in accordance with Rule 13d-3 under the Exchange Act.\n5. Process. The Recipient acknowledges that (i) the Company shall conduct the process for a possible Transaction as it in its sole discretion\nshall determine (including, without limitation, negotiating with any prospective buyer and entering into definitive agreements without prior notice to\nthe Recipient or any other person), (ii) any procedures relating to a Transaction may be changed at any time without notice to the Recipient or any\nother person, (iii) the Company shall have the right, in its sole discretion, to reject or accept any potential buyer, proposal or offer, and to terminate\nany discussions and negotiations, at any time and for any or no reason, (iv) neither the Recipient nor any of its Representatives shall have any claims\nwhatsoever against the Company or any of its affiliates or Representatives arising out of or relating to such actions and (v) except for exercising the\nrights of a shareholder of the Company, neither the Recipient nor any of its Representatives shall challenge any Transaction on the ground that any\nsuch actions were wrongful, discriminatory, unfair or otherwise violated any duty owed the Recipient or any such Representative. Unless and until a\ndefinitive agreement between the Company or its stockholder(s) and the Recipient with respect to any Transaction has been executed and delivered,\nneither the Company nor any of its stockholders or affiliates will be under any legal obligation to the Recipient of any kind whatsoever with respect\nto such Transaction.\n6. Non-Solicitation and Non-Hire of Employees. Recipient acknowledges that the employees of the Company are a key component to the\nsuccess of the Company and that the preservation of the employee base of the Company is critical to, among other things, the prospects of the\nCompany. Therefore, Recipient agrees that, for a period of eighteen months from the date hereof, neither it nor any of its affiliates who have received\nEvaluation Material shall hire or solicit any individual who is an officer or management-level employee of the Company or any of its subsidiaries, as\nof the date hereof or at any time hereafter and prior to the termination of discussions by the Parties with respect to the Transaction, to leave his or her\nemployment with the Company or any of its subsidiaries or in any way interfere with the employment relationship between the Company or any of\nits subsidiaries and any of their respective employees; provided that the foregoing non-solicitation and non-hiring obligations shall not apply to (1)\ngeneralized advertisement of employment opportunities including in trade\n3\nor industry publications (if not focused specifically on or directed in any way at the employees or an employee of the Company or any of its\nsubsidiaries) or (2) with respect to any management-level employee who does not have a title of vice president or more senior with the Company or\nany of its subsidiaries, only such employees that are not introduced to recipient in consideration of a Transaction.\n7. Return or Destruction of Evaluation Material. In the event Recipient determines it does not wish to proceed with the Transaction,\nRecipient will promptly advise the Company of that decision. In that case or upon the Company’s request at any time, Recipient agrees to, and to\ncause its Representatives to, either return or destroy (and certify in writing to such destruction) any Evaluation Material; provided that, Recipient\nmay retain such Evaluation Material as required by applicable law or regulation. Any Evaluation Material that is not returned or destroyed,\nincluding, without limitation, any oral Evaluation Material, remains subject to the confidentiality obligations and use restrictions set forth in this\nAgreement.\n8. No Representation or Warranty. Recipient acknowledges that neither the Company, Jefferies nor any of their respective representatives\nmake any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material (and only those\nrepresentations and warranties of the Company which are made in a final definitive agreement when, as and if executed by the Company will have\nany legal effect). None of the Company, Jefferies or any of their respective representatives shall have any liability as a result of the review or use by\nRecipient or its Representatives of the Evaluation Material or for any errors therein or omissions therefrom.\n9. Acknowledgement of Recipient.\na. Recipient acknowledges that (i) it is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with\nrespect to investments such as the Transaction, (ii) it will be responsible for conducting its own due diligence investigation with respect to the\nCompany and any Transaction, (iii) if it (including any investment fund or funds it manages or advises) acquires any securities of the Company, it\nwill be doing so based on the results of its own due diligence investigation of the Company, (iv) if it determines to pursue an investment in a\nTransaction, it will negotiate the Transaction directly with the Company, and Jefferies will not be responsible for the ultimate success of any such\ninvestment and (v) the decision to invest in a Transaction will involve a significant degree of risk, including a risk of total loss of such investment.\nb. Accordingly, to the fullest extent permitted by law, Recipient releases Jefferies, its employees, officers and affiliates from any liability\nwith respect to Recipient’s participation, or proposed participation, in the Transaction. This Section 9 shall survive any termination of this\nAgreement. Jefferies has introduced Recipient to the Company in reliance on the Recipient’s understanding and agreement to this Section 9.\nc. Each of Recipient and the Company agree that Jefferies, and its employees, officers and affiliates are intended third party beneficiaries\nof this Agreement.\n4\n10. Integration. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and\nsupersedes all prior agreements between the parties with respect to it and may be amended only by a written execution of all parties.\n11. Remedies. The parties acknowledge that money damages would not be a sufficient remedy for any breach of this Agreement and that each\nparty is entitled to equitable relief, including, without limitation, injunctive relief, as a remedy for any such breach, without the requirement of\nposting a bond or other security. Such remedy is not the exclusive remedy for breach of this Agreement but is in addition to all other remedies\navailable at law or equity. In the event of litigation regarding the subject matter of this Agreement, the prevailing party in a final, non-appealable\norder of a court of competent jurisdiction shall be entitled to recover its reasonable expenses and attorneys’ fees in connection with obtaining such\norder.\n12. Diligence Process. Recipient and its Representatives shall not initiate or maintain contact with any stockholder, director, officer, employee,\npartner, manager, member, agent, supplier, franchisee or lender of the Company with respect to or relating in any way to the Transaction, or in which\nthe Transaction is discussed or referred to directly or indirectly, except as specifically authorized in writing by the Company and as provided in this\nsection. Recipient hereby agrees to submit or direct to the designee or designees of the Company all (a) communications regarding the Transaction,\n(b) requests for additional information, (c) requests for facility tours or management or employee meetings or conversations and (d) discussions or\nquestions regarding procedures.\n13. Miscellaneous.\na. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without\nregard to its conflicts of laws provisions. The exclusive venue for any actions arising directly or indirectly from this Agreement shall be the\nappropriate state or federal court sitting in the City of New York, in the State of New York.\nb. No Obligation. It is expressly understood by the parties hereto that, other than for the matters specifically agreed to herein, this\nAgreement is not intended to, and does not, constitute an agreement to consummate the Transaction or enter into a definitive agreement, and both\nparties acknowledge and agree that unless and until a written definitive agreement concerning the Transaction has been duly executed, neither party\nshall have any obligation to the other with respect to any Transaction, whether by virtue of this Agreement or any other written or oral expression\nwith respect to the Transaction or otherwise.\nc. Headings. The descriptive headings contained in this Agreement are for reference only and shall not in any way affect the meaning or\ninterpretation of this Agreement.\nd. Binding Effect. This Agreement is binding upon the parties and their respective successors and assigns.\ne. Counterparts. This Agreement may be executed in separate original counterparts, each of which shall be deemed to be an original but\nall of which together shall constitute but one and the same Agreement. All exhibits and attachments to this Agreement are\n5\nhereby incorporated by reference herein and made a part hereof as though set forth at length hereinabove.\n14. Termination. Except for Section 9, which shall survive any termination of this Agreement, this Agreement will terminate on the date two\nyears from the date hereof; provided that, such termination shall not relieve any party from liability in respect of breaches by such party prior to such\ntermination.\n15. WAIVER OF TRIAL BY JURY. EACH OF THE PARTIES TO THIS AGREEMENT IRREVOCABLY AND UNCONDITIONALLY\nWAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF, IN CONNECTION WITH OR\nRELATING TO THIS AGREEMENT, THE MATTERS CONTEMPLATED HEREBY, OR THE ACTIONS OF THE PARTIES IN THE\nNEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT OF THIS AGREEMENT.\nThe parties have executed this Agreement as of July 14, 2011\nCOMPANY:\nRECIPIENT:\nMorton’s Restaurant Group, Inc.\nLandry’s, Inc.\n/s/ Scott D. Levin\n/s/ Steven L. Scheinthal\nName: Scott D. Levin\nName: Steven L. Scheinthal\nTitle: SVP and General Counsel\nTitle: EVP & GC\nBy executing this Agreement, Mr. Tilman J. Fertitta and his affiliates hereby agree to be bound by the terms hereof.\n/s/ Tilman J. Fertitta by Steven L. Scheinthal w/permission\nTilman J. Fertitta\n6	EX-99.(D)(3) 9 d272786dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT (the “Agreement”)\nIn connection with a possible transaction, Landry’s, Inc. (the “Recipient”) and Morton’s Restaurant Group Inc. (the “Company”), agree as\nfollows:\n1. Evaluation Material. In connection with a possible negotiated transaction by the Company (the “Transaction”), the Company and its\nrepresentatives, including Jefferies & Company, Inc. (“Jefferies”), may furnish the Recipient, in writing and orally, certain information concerning\nthe current and possible future business, operations and finances of the Company and other related information, including, but not limited to,\ninformation related to the Transaction or other potential future capital raising plans of the Company (any such information, the “Evaluation\nMaterial”). The Evaluation Material may contain, and the fact that a Transaction is being contemplated may constitute, material, nonpublic\ninformation within the meaning of the U.S. federal securities laws. The Recipient acknowledges that the U.S. federal securities laws and other laws\nprohibit any person who has any such material, non-public information about a company from purchasing or selling securities of that company or\nfrom communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell such securities.\n2. Limited Use of Evaluation Material. The Recipient agrees to use the Evaluation Material solely in connection with its consideration of a\nTransaction and for no other purpose.\n3. Confidentiality. The Recipient agrees to keep the Evaluation Material confidential and agrees to not disclose it to any other person, other\nthan those of its directors, officers, employees, partners, agents and advisors (such persons, the “Representatives”) who need to know such\ninformation to assist the Recipient in determining whether to participate in a Transaction; provided that, the Recipient may disclose, such Evaluation\nMaterial (a) if it is or becomes generally available to the public without any violation of this Agreement on the part of the Recipient or anyone to\nwhom it discloses Evaluation Material; (b) if it becomes available to the Recipient on a non-confidential basis from a source which is not known to\nRecipient, after reasonable inquiry, to be prohibited from disclosing any portion of the Evaluation Material to the Recipient; (c) as required by law or\nregulation, provided that the Recipient will provide the Company with prompt prior notice so that the Company may seek a protective order or other\nappropriate remedy and/or waive compliance with the provisions of this Agreement; and (d) which was or is independently developed by Recipient\nwithout using the Evaluation Material or violating its obligations hereunder. As a condition to the furnishing of Evaluation Material to the\nRepresentatives of Recipient, Recipient shall cause its Representatives to treat such information in accordance with the provisions of this Agreement\nand to perform or to comply with the obligations of Recipient with respect to the Evaluation Material as contemplated hereby. Recipient agrees that\nit will be fully responsible for any breach of any of the provisions of this Agreement by its Representatives.\n \nIn considering a Transaction and reviewing the Evaluation Material, the Recipient confirms that it is acting solely on its own behalf and not as\npart of a group with any third parties. The Recipient will not, directly or indirectly, enter into any agreement, arrangement or understanding, or any\ndiscussions that may lead to the same, with any person regarding a possible transaction involving the Company. The Recipient and its\nRepresentatives will not\ndisclose the fact that the Evaluation Material has been made available to them or that discussions or negotiations are taking place between the parties\nconcerning a Transaction or any of the terms, conditions or other facts with respect thereto (including the status thereof).\n4. Standstill. Recipient hereby agrees that for a period of one year from the date hereof (the “Standstill Period”) Recipient and its affiliates\nwill not (and neither Recipient nor its affiliates will assist, or provide or arrange financing to or for, others in order to), directly or indirectly, acting\nalone or in concert with others, unless specifically invited on an unsolicited basis in writing in advance by the Company: (i) acquire or agree, offer,\nseek or propose to acquire (or request permission to do so), ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3\nunder the Exchange Act) of any of the assets or businesses of the Company or any securities issued by the Company, or any option or other right to\nacquire such ownership (including from a third party); (ii) seek or propose to influence or control the management or the policies of the Company or\nto obtain representation on the board of directors (or any committee thereof) of the Company, or solicit or participate in the solicitation of, any\nproxies or consents with respect to any securities of the Company; (iii) seek or propose to have called, or cause to be called, any meeting of\nstockholders of the Company; (iv) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any\nof the foregoing; (v) advise, assist, encourage, act as a financing source for or otherwise invest in any other person in connection with any of the\nforegoing activities; (vi) propose or seek to propose any business combination, recapitalization, restructuring, liquidation, dissolution or other\nextraordinary transaction with respect to the Company or any of its subsidiaries; (vii) disclose any intention, plan or arrangement inconsistent with\nany of the foregoing; or (viii) seek to have the Company amend or waive any provision of this paragraph. Recipient agrees to advise the Company\npromptly of any inquiry or proposal made to it with respect to any of the foregoing. The Recipient will not prohibit or in any way discourage any\nlenders or financial advisors from providing financing or advice to any other bidders or potential bidders except for one financial advisor that the\nRecipient retains. Recipient further agrees that, during the Standstill Period, neither it nor any of its affiliates will, without the written consent of the\nCompany, take any initiative or other action with respect to the Company or any of the subsidiaries of the Company that could require the Company\nto make a public announcement regarding (i) such initiative or other action, (ii) any of the activities, events or circumstances referred to in the\npreceding sentences of this paragraph, (iii) the possibility of the Transaction, any similar transaction or the pursuit of strategic alternatives or any\nstrategic alternative by the Company or (iv) the possibility of Recipient or any other person acquiring control of the Company whether by means of a\nbusiness combination or otherwise. Recipient represents to the Company that as of the date of this Agreement, it, together with its affiliates, owns\napproximately 850,000 shares of common stock of the Company. The obligations set forth in this paragraph are referred to in this Agreement as the\n“Standstill”.\nNotwithstanding anything in the previous paragraph to the contrary, if, on or after the date of this Agreement, any person or group of persons\n(other than Recipient) enters into a definitive agreement with the Company providing for: (a) a merger, share exchange, business combination or\nsimilar extraordinary transaction as a result of which the persons possessing, immediately prior to the consummation of such transaction, beneficial\nownership of the voting securities of the Company entitled to vote generally in elections of directors, would cease to possess, immediately after\nconsummation of such transaction, beneficial ownership of voting\nsecurities entitling them to exercise at least fifty percent (50%) of the total voting power of all outstanding securities entitled to vote generally in\nelections of directors of the Company (or, if not the Company, the surviving person resulting from such transaction); (b) a sale, exchange or lease of\nall or substantially all of the assets of the Company and its subsidiaries (determined on a consolidated basis); or (c) the acquisition (by purchase,\nmerger or otherwise) by any person (including any syndicate or group deemed to be a “person” under Section 13(d)(3) of the Exchange Act and the\nrules promulgated thereunder) of beneficial ownership of voting securities of the Company entitling that person to exercise fifty percent (50%) or\nmore of the total voting power of all outstanding securities entitled to vote generally in elections of directors of the Company (the transactions\ndescribed in clauses (a), (b) and (c) of this paragraph being each hereinafter referred to as a “Third-Party Agreement”); then, the Standstill shall not\nrestrict the Recipient or its affiliates from making a private acquisition proposal solely to the Board of Directors of the Company; provided, however,\nthat the Standstill again shall be fully applicable in accordance with the terms of the prior paragraph upon the termination of the Third-Party\nAgreement. For purposes of this Agreement, “beneficial ownership” shall be determined in accordance with Rule 13d-3 under the Exchange Act.\n5. Process. The Recipient acknowledges that (i) the Company shall conduct the process for a possible Transaction as it in its sole discretion\nshall determine (including, without limitation, negotiating with any prospective buyer and entering into definitive agreements without prior notice to\nthe Recipient or any other person), (ii) any procedures relating to a Transaction may be changed at any time without notice to the Recipient or any\nother person, (iii) the Company shall have the right, in its sole discretion, to reject or accept any potential buyer, proposal or offer, and to terminate\nany discussions and negotiations, at any time and for any or no reason, (iv) neither the Recipient nor any of its Representatives shall have any claims\nwhatsoever against the Company or any of its affiliates or Representatives arising out of or relating to such actions and (v) except for exercising the\nrights of a shareholder of the Company, neither the Recipient nor any of its Representatives shall challenge any Transaction on the ground that any\nsuch actions were wrongful, discriminatory, unfair or otherwise violated any duty owed the Recipient or any such Representative. Unless and until a\ndefinitive agreement between the Company or its stockholder(s) and the Recipient with respect to any Transaction has been executed and delivered,\nneither the Company nor any of its stockholders or affiliates will be under any legal obligation to the Recipient of any kind whatsoever with respect\nto such Transaction.\n6. Non-Solicitation and Non-Hire of Employees. Recipient acknowledges that the employees of the Company are a key component to the\nsuccess of the Company and that the preservation of the employee base of the Company is critical to, among other things, the prospects of the\nCompany. Therefore, Recipient agrees that, for a period of eighteen months from the date hereof, neither it nor any of its affiliates who have received\nEvaluation Material shall hire or solicit any individual who is an officer or management-level employee of the Company or any of its subsidiaries, as\nof the date hereof or at any time hereafter and prior to the termination of discussions by the Parties with respect to the Transaction, to leave his or her\nemployment with the Company or any of its subsidiaries or in any way interfere with the employment relationship between the Company or any of\nits subsidiaries and any of their respective employees; provided that the foregoing non-solicitation and non-hiring obligations shall not apply to (1)\ngeneralized advertisement of employment opportunities including in trade\n3\nor industry publications (if not focused specifically on or directed in any way at the employees or an employee of the Company or any of its\nsubsidiaries) or (2) with respect to any management-level employee who does not have a title of vice president or more senior with the Company or\nany of its subsidiaries, only such employees that are not introduced to recipient in consideration of a Transaction.\n7. Return or Destruction of Evaluation Material. In the event Recipient determines it does not wish to proceed with the Transaction,\nRecipient will promptly advise the Company of that decision. In that case or upon the Company’s request at any time, Recipient agrees to, and to\ncause its Representatives to, either return or destroy (and certify in writing to such destruction) any Evaluation Material; provided that, Recipient\nmay retain such Evaluation Material as required by applicable law or regulation. Any Evaluation Material that is not returned or destroyed,\nincluding, without limitation, any oral Evaluation Material, remains subject to the confidentiality obligations and use restrictions set forth in this\nAgreement.\n8. No Representation or Warranty. Recipient acknowledges that neither the Company, Jefferies nor any of their respective representatives\nmake any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material (and only those\nrepresentations and warranties of the Company which are made in a final definitive agreement when, as and if executed by the Company will have\nany legal effect). None of the Company, Jefferies or any of their respective representatives shall have any liability as a result of the review or use by\nRecipient or its Representatives of the Evaluation Material or for any errors therein or omissions therefrom.\n9. Acknowledgement of Recipient.\na. Recipient acknowledges that (i) it is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with\nrespect to investments such as the Transaction, (ii) it will be responsible for conducting its own due diligence investigation with respect to the\nCompany and any Transaction, (iii) if it (including any investment fund or funds it manages or advises) acquires any securities of the Company, it\nwill be doing so based on the results of its own due diligence investigation of the Company, (iv) if it determines to pursue an investment in a\nTransaction, it will negotiate the Transaction directly with the Company, and Jefferies will not be responsible for the ultimate success of any such\ninvestment and (v) the decision to invest in a Transaction will involve a significant degree of risk, including a risk of total loss of such investment.\nb. Accordingly, to the fullest extent permitted by law, Recipient releases Jefferies, its employees, officers and affiliates from any liability\nwith respect to Recipient’s participation, or proposed participation, in the Transaction. This Section 9 shall survive any termination of this\nAgreement. Jefferies has introduced Recipient to the Company in reliance on the Recipient’s understanding and agreement to this Section 9.\nc. Each of Recipient and the Company agree that Jefferies, and its employees, officers and affiliates are intended third party beneficiaries\nof this Agreement.\n10. Integration. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and\nsupersedes all prior agreements between the parties with respect to it and may be amended only by a written execution of all parties.\n11. Remedies. The parties acknowledge that money damages would not be a sufficient remedy for any breach of this Agreement and that each\nparty is entitled to equitable relief, including, without limitation, injunctive relief, as a remedy for any such breach, without the requirement of\nposting a bond or other security. Such remedy is not the exclusive remedy for breach of this Agreement but is in addition to all other remedies\navailable at law or equity. In the event of litigation regarding the subject matter of this Agreement, the prevailing party in a final, non-appealable\norder of a court of competent jurisdiction shall be entitled to recover its reasonable expenses and attorneys’ fees in connection with obtaining such\norder.\n12. Diligence Process. Recipient and its Representatives shall not initiate or maintain contact with any stockholder, director, officer, employee,\npartner, manager, member, agent, supplier, franchisee or lender of the Company with respect to or relating in any way to the Transaction, or in which\nthe Transaction is discussed or referred to directly or indirectly, except as specifically authorized in writing by the Company and as provided in this\nsection. Recipient hereby agrees to submit or direct to the designee or designees of the Company all (a) communications regarding the Transaction,\n(b) requests for additional information, (c) requests for facility tours or management or employee meetings or conversations and (d) discussions or\nquestions regarding procedures.\n13. Miscellaneous.\na. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without\nregard to its conflicts of laws provisions. The exclusive venue for any actions arising directly or indirectly from this Agreement shall be the\nappropriate state or federal court sitting in the City of New York, in the State of New York.\nb. No Obligation. It is expressly understood by the parties hereto that, other than for the matters specifically agreed to herein, this\nAgreement is not intended to, and does not, constitute an agreement to consummate the Transaction or enter into a definitive agreement, and both\nparties acknowledge and agree that unless and until a written definitive agreement concerning the Transaction has been duly executed, neither party\nshall have any obligation to the other with respect to any Transaction, whether by virtue of this Agreement or any other written or oral expression\nwith respect to the Transaction or otherwise.\nc. Headings. The descriptive headings contained in this Agreement are for reference only and shall not in any way affect the meaning or\ninterpretation of this Agreement.\nd. Binding Effect. This Agreement is binding upon the parties and their respective successors and assigns.\ne. Counterparts. This Agreement may be executed in separate original counterparts, each of which shall be deemed to be an original but\nall of which together shall constitute but one and the same Agreement. All exhibits and attachments to this Agreement are\n5\nhereby incorporated by reference herein and made a part hereof as though set forth at length hereinabove.\n14. Termination. Except for Section 9, which shall survive any termination of this Agreement, this Agreement will terminate on the date two\nyears from the date hereof; provided that, such termination shall not relieve any party from liability in respect of breaches by such party prior to such\ntermination.\n15. WAIVER OF TRIAL BY JURY. EACH OF THE PARTIES TO THIS AGREEMENT IRREVOCABLY AND UNCONDITIONALLY\nWAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF, IN CONNECTION WITH OR\nRELATING TO THIS AGREEMENT, THE MATTERS CONTEMPLATED HEREBY, OR THE ACTIONS OF THE PARTIES IN THE\nNEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT OF THIS AGREEMENT.\nThe parties have executed this Agreement as of July 14, 2011\nCOMPANY: RECIPIENT:\nMorton’s Restaurant Group, Inc. Landry’s, Inc.\n/s/ Scott D. Levin /s/ Steven L. Scheinthal\nName: Scott D. Levin Name: Steven L. Scheinthal\nTitle: SVP and General Counsel Title: EVP & GC\nBy executing this Agreement, Mr. Tilman J. Fertitta and his affiliates hereby agree to be bound by the terms hereof.\n/s/ Tilman J. Fertitta by Steven L. Scheinthal w/permission\nTilman J. Fertitta	EX-99.(D)(3) 9 d272786dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT (the "Agreement")\nIn connection with a possible transaction, Landry's, Inc. (the "Recipient") and Morton's Restaurant Group Inc. (the "Company"), agree as\nfollows:\n1. Evaluation Material. In connection with a possible negotiated transaction by the Company (the "Transaction"), the Company and its\nrepresentatives, including Jefferies & Company, Inc. ("Jefferies"), may furnish the Recipient, in writing and orally, certain information concerning\nthe current and possible future business, operations and finances of the Company and other related information, including, but not limited to,\ninformation related to the Transaction or other potential future capital raising plans of the Company (any such information, the "Evaluation\nMaterial"). The Evaluation Material may contain, and the fact that a Transaction is being contemplated may constitute, material, nonpublic\ninformation within the meaning of the U.S. federal securities laws. The Recipient acknowledges that the U.S. federal securities laws and other laws\nprohibit any person who has any such material, non-public information about a company from purchasing or selling securities of that company or\nfrom communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell such securities.\n2. Limited Use of Evaluation Material. The Recipient agrees to use the Evaluation Material solely in connection with its consideration of a\nTransaction and for no other purpose.\n3. Confidentiality. The Recipient agrees to keep the Evaluation Material confidential and agrees to not disclose it to any other person, other\nthan those of its directors, officers, employees, partners, agents and advisors (such persons, the "Representatives") who need to know such\ninformation to assist the Recipient in determining whether to participate in a Transaction; provided that, the Recipient may disclose, such Evaluation\nMaterial (a) if it is or becomes generally available to the public without any violation of this Agreement on the part of the Recipient or anyone to\nwhom it discloses Evaluation Material; (b) if it becomes available to the Recipient on a non-confidential basis from a source which is not known to\nRecipient, after reasonable inquiry, to be prohibited from disclosing any portion of the Evaluation Material to the Recipient; (c) as required by law\nor\nregulation, provided that the Recipient will provide the Company with prompt prior notice so that the Company may seek a protective order or other\nappropriate remedy and/or waive compliance with the provisions of this Agreement; and (d) which was or is independently developed by Recipient\nwithout using the Evaluation Material or violating its obligations hereunder. As a condition to the furnishing of Evaluation Material to the\nRepresentatives of Recipient, Recipient shall cause its Representatives to treat such information in accordance with the provisions of this Agreemen\nand to perform or to comply with the obligations of Recipient with respect to the Evaluation Material as contemplated hereby. Recipient agrees that\nit will be fully responsible for any breach of any of the provisions of this Agreement by its Representatives.\nIn considering a Transaction and reviewing the Evaluation Material, the Recipient confirms that it is acting solely on its own behalf and not as\npart of a group with any third parties. The Recipient will not, directly or indirectly, enter into any agreement, arrangement or understanding, or any\ndiscussions that may lead to the same, with any person regarding a possible transaction involving the Company. The Recipient and its\nRepresentatives will not\ndisclose the fact that the Evaluation Material has been made available to them or that discussions or negotiations are taking place between the parties\nconcerning a Transaction or any of the terms, conditions or other facts with respect thereto (including the status thereof).\n4. Standstill. Recipient hereby agrees that for a period of one year from the date hereof (the "Standstill Period") Recipient and its affiliates\nwill not (and neither Recipient nor its affiliates will assist, or provide or arrange financing to or for, others in order to), directly or indirectly, acting\nalone\nor in concert with others, unless specifically invited on an unsolicited basis in writing in advance by the Company:\n(i)\nacquire\nor\nagree,\noffer\nseek or propose to acquire (or request permission to do so), ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3\nunder the Exchange Act) of any of the assets or businesses of the Company or any securities issued by the Company, or any option or other right to\nacquire such ownership (including from a third party); (ii) seek or propose to influence or control the management or the policies of the Company\nor\nto obtain representation on the board of directors (or any committee thereof) of the Company, or solicit or participate in the solicitation of, any\nproxies or consents with respect to any securities of the Company; (iii) seek or propose to have called, or cause to be called, any meeting of\nstockholders of the Company; (iv) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any\nof the foregoing; (v) advise, assist, encourage, act as a financing source for or otherwise invest in any other person in connection with any of the\nforegoing activities; (vi) propose or seek to propose any business combination, recapitalization, restructuring, liquidation, dissolution or other\nextraordinary transaction with respect to the Company or any of its subsidiaries; (vii) disclose any intention, plan or arrangement inconsistent with\nany of the foregoing; or (viii) seek to have the Company amend or waive any provision of this paragraph. Recipient agrees to advise the Company\npromptly of any inquiry or proposal made to it with respect to any of the foregoing. The Recipient will not prohibit or in any way discourage any\nlenders or financial advisors from providing financing or advice to any other bidders or potential bidders except for one financial advisor that the\nRecipient retains. Recipient further agrees that, during the Standstill Period, neither it nor any of its affiliates will, without the written consent of the\nCompany, take any initiative or other action with respect to the Company or any of the subsidiaries of the Company that could require the Company\nto make a public announcement regarding (i) such initiative or other action, (ii) any of the activities, events or circumstances referred to in\nthe\npreceding sentences of this paragraph, (iii) the possibility of the Transaction, any similar transaction or the pursuit of strategic alternatives or any\nstrategic alternative by the Company or (iv) the possibility of Recipient or any other person acquiring control of the Company whether by means of a\nbusiness combination or otherwise. Recipient represents to the Company that as of the date of this Agreement, it, together with its affiliates, owns\napproximately 850,000 shares of common stock of the Company. The obligations set forth in this paragraph are referred to in this Agreement as the\n"Standstill".\nNotwithstanding anything in the previous paragraph to the contrary, if, on or after the date of this Agreement, any person or group of persons\n(other than Recipient) enters into a definitive agreement with the Company providing for: (a) a merger, share exchange, business combination or\nsimilar extraordinary transaction as a result of which the persons possessing, immediately prior to the consummation of such transaction, beneficial\nownership of the voting securities of the Company entitled to vote generally in elections of directors, would cease to possess, immediately after\nconsummation of such transaction, beneficial ownership of voting\n2\nsecurities entitling them to exercise at least fifty percent (50%) of the total voting power of all outstanding securities entitled to vote generally in\nelections of directors of the Company (or, if not the Company, the surviving person resulting from such transaction); (b) a sale, exchange or lease of\nall or substantially all of the assets of the Company and its subsidiaries (determined on a consolidated basis); or (c) the acquisition (by purchase,\nmerger or otherwise) by any person (including any syndicate or group deemed to be a "person" under Section 13(d)(3) of the Exchange Act and the\nrules promulgated thereunder) of beneficial ownership of voting securities of the Company entitling that person to exercise fifty percent (50%)\nor\nmore of the total voting power of all outstanding securities entitled to vote generally in elections of directors of the Company (the transactions\ndescribed in clauses (a), (b) and (c) of this paragraph being each hereinafter referred to as a "Third-Party Agreement"); then, the Standstill shall\nnot\nrestrict the Recipient or its affiliates from making a private acquisition proposal solely to the Board of Directors of the Company; provided, however,\nthat the Standstill again shall be fully applicable in accordance with the terms of the prior paragraph upon the termination of the Third-Party\nAgreement. For purposes of this Agreement, "beneficial ownership" shall be determined in accordance with Rule 13d-3 under the Exchange Act.\n5. Process. The Recipient acknowledges that (i) the Company shall conduct the process for a possible Transaction as it in its sole discretion\nshall determine (including, without limitation, negotiating with any prospective buyer and entering into definitive agreements without prior notice to\nthe Recipient or any other person), (ii) any procedures relating to a Transaction may be changed at any time without notice to the Recipient or any\nother person, (iii) the Company shall have the right, in its sole discretion, to reject or accept any potential buyer, proposal or offer, and to terminate\nany discussions and negotiations, at any time and for any or no reason, (iv) neither the Recipient nor any of its Representatives shall have any claims\nwhatsoever against the Company or any of its affiliates or Representatives arising out of or relating to such actions and (v) except for exercising\nthe\nrights of a shareholder of the Company, neither the Recipient nor any of its Representatives shall challenge any Transaction on the ground that\nany\nsuch actions were wrongful, discriminatory, unfair or otherwise violated any duty owed the Recipient or any such Representative. Unless and until a\ndefinitive agreement between the Company or its stockholder(s) and the Recipient with respect to any Transaction has been executed and delivered,\nneither the Company nor any of its stockholders or affiliates will be under any legal obligation to the Recipient of any kind whatsoever with respect\nto such Transaction.\n6. Non-Solicitation and Non-Hire of Employees. Recipient acknowledges that the employees of the Company are a key component to the\nsuccess of the Company and that the preservation of the employee base of the Company is critical to, among other things, the prospects of the\nCompany. Therefore, Recipient agrees that, for a period of eighteen months from the date hereof, neither it nor any of its affiliates who have received\nEvaluation Material shall hire or solicit any individual who is an officer or management-level employee of the Company or any of its subsidiaries, as\nof the date hereof or at any time hereafter and prior to the termination of discussions by the Parties with respect to the Transaction, to leave his or her\nemployment with the Company or any of its subsidiaries or in any way interfere with the employment relationship between the Company or any of\nits subsidiaries and any of their respective employees; provided that the foregoing non-solicitation and non-hiring obligations shall not apply to (1)\ngeneralized advertisement of employment opportunities including in trade\n3\nor industry publications (if not focused specifically on or directed in any way at the employees or an employee of the Company or any of its\nsubsidiaries) or (2) with respect to any management-level employee who does not have a title of vice president or more senior with the Company or\nany of its subsidiaries, only such employees that are not introduced to recipient in consideration of a Transaction.\n7. Return or Destruction of Evaluation Material. In the event Recipient determines it does not wish to proceed with the Transaction,\nRecipient will promptly advise the Company of that decision. In that case or upon the Company's request at any time, Recipient\nagrees\nto,\nand\nto\ncause its Representatives to, either return or destroy (and certify in writing to such destruction) any Evaluation Material; provided that, Recipient\nmay retain such Evaluation Material as required by applicable law or regulation. Any Evaluation Material that is not returned or destroyed,\nincluding, without limitation, any oral Evaluation Material, remains subject to the confidentiality obligations and use restrictions set forth in this\nAgreement.\n8. No Representation or Warranty. Recipient acknowledges that neither the Company, Jefferies nor any of their respective representatives\nmake any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material (and only those\nrepresentations and warranties of the Company which are made in a final definitive agreement when, as and if executed by the Company will have\nany legal effect). None of the Company, Jefferies or any of their respective representatives shall have any liability as a result of the review or use by\nRecipient or its Representatives of the Evaluation Material or for any errors therein or omissions therefrom.\n9. Acknowledgement of Recipient.\na. Recipient acknowledges that (i) it is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with\nrespect to investments such as the Transaction, (ii) it will be responsible for conducting its own due diligence investigation with respect to the\nCompany and any Transaction, (iii) if it (including any investment fund or funds it manages or advises) acquires any securities of the Company,\nit\nwill be doing so based on the results of its own due diligence investigation of the Company, (iv) if it determines to pursue an investment in a\nTransaction, it will negotiate the Transaction directly with the Company, and Jefferies will not be responsible for the ultimate success of any\nsuch\ninvestment and (v) the decision to invest in a Transaction will involve a significant degree of risk, including a risk of total loss of such investment.\nb. Accordingly, to the fullest extent permitted by law, Recipient releases Jefferies, its employees, officers and affiliates from any liability\nwith respect to Recipient's participation, or proposed participation, in the Transaction. This Section 9 shall survive any termination of this\nAgreement. Jefferies has introduced Recipient to the Company in reliance on the Recipient's understanding and agreement to this Section 9.\nC. Each of Recipient and the Company agree that Jefferies, and its employees, officers and affiliates are intended third party beneficiaries\nof this Agreement.\n4\n10. Integration. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and\nsupersedes all prior agreements between the parties with respect to it and may be amended only by a written execution of all parties.\n11. Remedies. The parties acknowledge that money damages would not be a sufficient remedy for any breach of this Agreement and that each\nparty is entitled to equitable relief, including, without limitation, injunctive relief, as a remedy for any such breach, without the requirement of\nposting a bond or other security. Such remedy is not the exclusive remedy for breach of this Agreement but is in addition to all other remedies\navailable at law or equity. In the event of litigation regarding the subject matter of this Agreement, the prevailing party in a final, non-appealable\norder of a court of competent jurisdiction shall be entitled to recover its reasonable expenses and attorneys' fees in connection with obtaining such\norder.\n12. Diligence Process. Recipient and its Representatives shall not initiate or maintain contact with any stockholder, director, officer, employee,\npartner, manager, member, agent, supplier, franchisee or lender of the Company with respect to or relating in any way to the\nTransaction,\nor\nin\nwhich\nthe Transaction is discussed or referred to directly or indirectly, except as specifically authorized in writing by the Company and as provided in this\nsection. Recipient hereby agrees to submit or direct to the designee or designees of the Company all (a) communications regarding the Transaction,\n(b) requests for additional information, (c) requests for facility tours or management or employee meetings or conversations and (d) discussions or\nquestions regarding procedures.\n13. Miscellaneous.\na. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without\nregard to its conflicts of laws provisions. The exclusive venue for any actions arising directly or indirectly from this Agreement shall be the\nappropriate state or federal court sitting in the City of New York, in the State of New York.\nb. No Obligation. It is expressly understood by the parties hereto that, other than for the matters specifically agreed to herein, this\nAgreement is not intended to, and does not, constitute an agreement to consummate the Transaction or enter into a definitive agreement, and both\nparties acknowledge and agree that unless and until a written definitive agreement concerning the Transaction has been duly executed, neither party\nshall have any obligation to the other with respect to any Transaction, whether by virtue of this Agreement or any other written or oral expression\nwith respect to the Transaction or otherwise.\nC. Headings. The descriptive headings contained in this Agreement are for reference only and shall not in any way affect the meaning or\ninterpretation of this Agreement.\nd. Binding Effect. This Agreement is binding upon the parties and their respective successors and assigns.\ne. Counterparts. This Agreement may be executed in separate original counterparts, each of which shall be deemed to be an original but\nall of which together shall constitute but one and the same Agreement. All exhibits and attachments to this Agreement are\n5\nhereby incorporated by reference herein and made a part hereof as though set forth at length hereinabove.\n14. Termination. Except for Section 9, which shall survive any termination of this Agreement, this Agreement will terminate on the date two\nyears from the date hereof; provided that, such termination shall not relieve any party from liability in respect of breaches by such party prior to such\ntermination.\n15. WAIVER OF TRIAL BY JURY. EACH OF THE PARTIES TO THIS AGREEMENT IRREVOCABLY AND UNCONDITIONALLY\nWAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF, IN CONNECTION WITH OR\nRELATING TO THIS AGREEMENT, THE MATTERS CONTEMPLATED HEREBY, OR THE ACTIONS OF THE PARTIES IN THE\nNEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT OF THIS AGREEMENT.\nThe parties have executed this Agreement as of July 14, 2011\nCOMPANY:\nRECIPIENT:\nMorton's Restaurant Group, Inc.\nLandry's, Inc.\n/s/ Scott D. Levin\n/s/ Steven L. Scheinthal\nName: Scott D. Levin\nName: Steven L. Scheinthal\nTitle: SVP and General Counsel\nTitle: EVP & GC\nBy executing this Agreement, Mr. Tilman J. Fertitta and his affiliates hereby agree to be bound by the terms hereof.\n/s/ Tilman J. Fertitta by Steven L. Scheinthal w/permission\nTilman J. Fertitta\n6	EX-99.(D)(3) 9 d272786dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT (the “Agreement”)\nIn connection with a possible transaction, Landry’s, Inc. (the “Recipient”) and Morton’s Restaurant Group Inc. (the “Company”), agree as\nfollows:\n1. Evaluation Material. In connection with a possible negotiated transaction by the Company (the “Transaction”), the Company and its\nrepresentatives, including Jefferies & Company, Inc. (“Jefferies”), may furnish the Recipient, in writing and orally, certain information concerning\nthe current and possible future business, operations and finances of the Company and other related information, including, but not limited to,\ninformation related to the Transaction or other potential future capital raising plans of the Company (any such information, the “Evaluation\nMaterial”). The Evaluation Material may contain, and the fact that a Transaction is being contemplated may constitute, material, nonpublic\ninformation within the meaning of the U.S. federal securities laws. The Recipient acknowledges that the U.S . federal securities laws and other laws\nprohibit any person who has any such material, non-public information about a company from purchasing or selling securities of that company or\nfrom communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell such securities.\n2. Limited Use of Evaluation Material. The Recipient agrees to use the Evaluation Material solely in connection with its consideration of a\nTransaction and for no other purpose.\n3. Confidentiality. The Recipient agrees to keep the Evaluation Material confidential and agrees to not disclose it to any other person, other\nthan those of its directors, officers, employees, partners, agents and advisors (such persons, the “Representatives”) who need to know such\ninformation to assist the Recipient in determining whether to participate in a Transaction; provided that, the Recipient may disclose, such Evaluation\nMaterial (a) if it is or becomes generally available to the public without any violation of this Agreement on the part of the Recipient or anyone to\nwhom it discloses Evaluation Material; (b) if it becomes available to the Recipient on a non-confidential basis from a source which is not known to\nRecipient, after reasonable inquiry, to be prohibited from disclosing any portion of the Evaluation Material to the Recipient; (c) as required by law or\nregulation, provided that the Recipient will provide the Company with prompt prior notice so that the Company may seek a protective order or other\nappropriate remedy and/or waive compliance with the provisions of this Agreement; and (d) which was or is independently developed by Recipient\nwithout using the Evaluation Material or violating its obligations hereunder. As a condition to the furnishing of Evaluation Material to the\nRepresentatives of Recipient, Recipient shall cause its Representatives to treat such information in accordance with the provisions of this Agreement\nand to perform or to comply with the obligations of Recipient with respect to the Evaluation Material as contemplated hereby. Recipient agrees that\nit will be fully responsible for any breach of any of the provisions of this Agreement by its Representatives.\nIn considering a Transaction and reviewing the Evaluation Material, the Recipient confirms that it is acting solely on its own behalf and not as\npart of a group with any third parties. The Recipient will not, directly or indirectly, enter into any agreement, arrangement or understanding, or any\ndiscussions that may lead to the same, with any person regarding a possible transaction involving the Company. The Recipient and its\nRepresentatives will not\ndisclose the fact that the Evaluation Material has been made available to them or that discussions or negotiations are taking place between the parties\nconcerning a Transaction or any of the terms, conditions or other facts with respect thereto (including the status thereof).\n4. Standstill. Recipient hereby agrees that for a period of one year from the date hereof (the “Standstill Period”) Recipient and its affiliates\nwill not (and neither Recipient nor its affiliates will assist, or provide or arrange financing to or for, others in order to), directly or indirectly, acting\nalone or in concert with others, unless specifically invited on an unsolicited basis in writing in advance by the Company: (i) acquire or agree, offer,\nseek or propose to acquire (or request permission to do so), ownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3\nunder the Exchange Act) of any of the assets or businesses of the Company or any securities issued by the Company, or any option or other right to\nacquire such ownership (including from a third party); (ii) seek or propose to influence or control the management or the policies of the Company or\nto obtain representation on the board of directors (or any committee thereof) of the Company, or solicit or participate in the solicitation of, any\nproxies or consents with respect to any securities of the Company; (iii) seek or propose to have called, or cause to be called, any meeting of\nstockholders of the Company; (iv) enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any\nof the foregoing; (v) advise, assist, encourage, act as a financing source for or otherwise invest in any other person in connection with any of the\nforegoing activities; (vi) propose or seek to propose any business combination, recapitalization, restructuring, liquidation, dissolution or other\nextraordinary transaction with respect to the Company or any of its subsidiaries; (vii) disclose any intention, plan or arrangement inconsistent with\nany of the foregoing; or (viii) seek to have the Company amend or waive any provision of this paragraph. Recipient agrees to advise the Company\npromptly of any inquiry or proposal made to it with respect to any of the foregoing. The Recipient will not prohibit or in any way discourage any\nlenders or financial advisors from providing financing or advice to any other bidders or potential bidders except for one financial advisor that the\nRecipient retains. Recipient further agrees that, during the Standstill Period, neither it nor any of its affiliates will, without the written consent of the\nCompany, take any initiative or other action with respect to the Company or any of the subsidiaries of the Company that could require the Company\nto make a public announcement regarding (i) such initiative or other action, (ii) any of the activities, events or circumstances referred to in the\npreceding sentences of this paragraph, (iii) the possibility of the Transaction, any similar transaction or the pursuit of strategic alternatives or any\nstrategic alternative by the Company or (iv) the possibility of Recipient or any other person acquiring control of the Company whether by means of a\nbusiness combination or otherwise. Recipient represents to the Company that as of the date of this Agreement, it, together with its affiliates, owns\napproximately 850,000 shares of common stock of the Company. The obligations set forth in this paragraph are referred to in this Agreement as the\n“Standstill”.\nNotwithstanding anything in the previous paragraph to the contrary, if, on or after the date of this Agreement, any person or group of persons\n(other than Recipient) enters into a definitive agreement with the Company providing for: (a) a merger, share exchange, business combination or\nsimilar extraordinary transaction as a result of which the persons possessing, immediately prior to the consummation of such transaction, beneficial\nownership of the voting securities of the Company entitled to vote generally in elections of directors, would cease to possess, immediately after\nconsummation of such transaction, beneficial ownership of voting\n2\nsecurities entitling them to exercise at least fifty percent (50%) of the total voting power of all outstanding securities entitled to vote generally in\nelections of directors of the Company (or, if not the Company, the surviving person resulting from such transaction); (b) a sale, exchange or lease of\nall or substantially all of the assets of the Company and its subsidiaries (determined on a consolidated basis); or (c) the acquisition (by purchase,\nmerger or otherwise) by any person (including any syndicate or group deemed to be a “person” under Section 13(d)(3) of the Exchange Act and the\nrules promulgated thereunder) of beneficial ownership of voting securities of the Company entitling that person to exercise fifty percent (50%) or\nmore of the total voting power of all outstanding securities entitled to vote generally in elections of directors of the Company (the transactions\ndescribed in clauses (a), (b) and (c) of this paragraph being each hereinafter referred to as a “Third-Party Agreement”); then, the Standstill shall not\nrestrict the Recipient or its affiliates from making a private acquisition proposal solely to the Board of Directors of the Company; provided, however,\nthat the Standstill again shall be fully applicable in accordance with the terms of the prior paragraph upon the termination of the Third-Party\nAgreement. For purposes of this Agreement, “beneficial ownership” shall be determined in accordance with Rule 13d-3 under the Exchange Act.\n5. Process. The Recipient acknowledges that (i) the Company shall conduct the process for a possible Transaction as it in its sole discretion\nshall determine (including, without limitation, negotiating with any prospective buyer and entering into definitive agreements without prior notice to\nthe Recipient or any other person), (ii) any procedures relating to a Transaction may be changed at any time without notice to the Recipient or any\nother person, (iii) the Company shall have the right, in its sole discretion, to reject or accept any potential buyer, proposal or offer, and to terminate\nany discussions and negotiations, at any time and for any or no reason, (iv) neither the Recipient nor any of its Representatives shall have any claims\nwhatsoever against the Company or any of its affiliates or Representatives arising out of or relating to such actions and (v) except for exercising the\nrights of a shareholder of the Company, neither the Recipient nor any of its Representatives shall challenge any Transaction on the ground that any\nsuch actions were wrongful, discriminatory, unfair or otherwise violated any duty owed the Recipient or any such Representative. Unless and until a\ndefinitive agreement between the Company or its stockholder(s) and the Recipient with respect to any Transaction has been executed and delivered,\nneither the Company nor any of its stockholders or affiliates will be under any legal obligation to the Recipient of any kind whatsoever with respect\nto such Transaction.\n6. Non-Solicitation and Non-Hire of Employees. Recipient acknowledges that the employees of the Company are a key component to the\nsuccess of the Company and that the preservation of the employee base of the Company is critical to, among other things, the prospects of the\nCompany. Therefore, Recipient agrees that, for a period of eighteen months from the date hereof, neither it nor any of its affiliates who have received\nEvaluation Material shall hire or solicit any individual who is an officer or management-level employee of the Company or any of its subsidiaries, as\nof the date hereof or at any time hereafter and prior to the termination of discussions by the Parties with respect to the Transaction, to leave his or her\nemployment with the Company or any of its subsidiaries or in any way interfere with the employment relationship between the Company or any of\nits subsidiaries and any of their respective employees; provided that the foregoing non-solicitation and non-hiring obligations shall not apply to (1)\ngeneralized advertisement of employment opportunities including in trade\n3\nor industry publications (if not focused specifically on or directed in any way at the employees or an employee of the Company or any of its\nsubsidiaries) or (2) with respect to any management-level employee who does not have a title of vice president or more senior with the Company or\nany of its subsidiaries, only such employees that are not introduced to recipient in consideration of a Transaction.\n7. Return or Destruction of Evaluation Material. In the event Recipient determines it does not wish to proceed with the Transaction,\nRecipient will promptly advise the Company of that decision. In that case or upon the Company’s request at any time, Recipient agrees to, and to\ncause its Representatives to, either return or destroy (and certify in writing to such destruction) any Evaluation Material; provided that, Recipient\nmay retain such Evaluation Material as required by applicable law or regulation. Any Evaluation Material that is not returned or destroyed,\nincluding, without limitation, any oral Evaluation Material, remains subject to the confidentiality obligations and use restrictions set forth in this\nAgreement.\n8. No Representation or Warranty. Recipient acknowledges that neither the Company, Jefferies nor any of their respective representatives\nmake any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material (and only those\nrepresentations and warranties of the Company which are made in a final definitive agreement when, as and if executed by the Company will have\nany legal effect). None of the Company, Jefferies or any of their respective representatives shall have any liability as a result of the review or use by\nRecipient or its Representatives of the Evaluation Material or for any errors therein or omissions therefrom.\n9. Acknowledgement of Recipient.\na. Recipient acknowledges that (i) it is knowledgeable, sophisticated and experienced in making, and is qualified to make, decisions with\nrespect to investments such as the Transaction, (ii) it will be responsible for conducting its own due diligence investigation with respect to the\nCompany and any Transaction, (iii) if it (including any investment fund or funds it manages or advises) acquires any securities of the Company, it\nwill be doing so based on the results of its own due diligence investigation of the Company, (iv) if it determines to pursue an investment in a\nTransaction, it will negotiate the Transaction directly with the Company, and Jefferies will not be responsible for the ultimate success of any such\ninvestment and (v) the decision to invest in a Transaction will involve a significant degree of risk, including a risk of total loss of such investment.\nb. Accordingly, to the fullest extent permitted by law, Recipient releases Jefferies, its employees, officers and affiliates from any liability\nwith respect to Recipient’s participation, or proposed participation, in the Transaction. This Section 9 shall survive any termination of this\nAgreement. Jefferies has introduced Recipient to the Company in reliance on the Recipient’s understanding and agreement to this Section 9.\nc. Each of Recipient and the Company agree that Jefferies, and its employees, officers and affiliates are intended third party beneficiaries\nof this Agreement.\n4\n10. Integration. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and\nsupersedes all prior agreements between the parties with respect to it and may be amended only by a written execution of all parties.\n11. Remedies. The parties acknowledge that money damages would not be a sufficient remedy for any breach of this Agreement and that each\nparty is entitled to equitable relief, including, without limitation, injunctive relief, as a remedy for any such breach, without the requirement of\nposting a bond or other security. Such remedy is not the exclusive remedy for breach of this Agreement but is in addition to all other remedies\navailable at law or equity. In the event of litigation regarding the subject matter of this Agreement, the prevailing party in a final, non-appealable\norder of a court of competent jurisdiction shall be entitled to recover its reasonable expenses and attorneys’ fees in connection with obtaining such\norder.\n12. Diligence Process. Recipient and its Representatives shall not initiate or maintain contact with any stockholder, director, officer, employee,\npartner, manager, member, agent, supplier, franchisee or lender of the Company with respect to or relating in any way to the Transaction, or in which\nthe Transaction is discussed or referred to directly or indirectly, except as specifically authorized in writing by the Company and as provided in this\nsection. Recipient hereby agrees to submit or direct to the designee or designees of the Company all (a) communications regarding the Transaction,\n(b) requests for additional information, (c) requests for facility tours or management or employee meetings or conversations and (d) discussions or\nquestions regarding procedures.\n13. Miscellaneous.\na. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without\nregard to its conflicts of laws provisions. The exclusive venue for any actions arising directly or indirectly from this Agreement shall be the\nappropriate state or federal court sitting in the City of New York, in the State of New York.\nb. No Obligation. It is expressly understood by the parties hereto that, other than for the matters specifically agreed to herein, this\nAgreement is not intended to, and does not, constitute an agreement to consummate the Transaction or enter into a definitive agreement, and both\nparties acknowledge and agree that unless and until a written definitive agreement concerning the Transaction has been duly executed, neither party\nshall have any obligation to the other with respect to any Transaction, whether by virtue of this Agreement or any other written or oral expression\nwith respect to the Transaction or otherwise.\nc. Headings. The descriptive headings contained in this Agreement are for reference only and shall not in any way affect the meaning or\ninterpretation of this Agreement.\nd. Binding Effect. This Agreement is binding upon the parties and their respective successors and assigns.\ne. Counterparts. This Agreement may be executed in separate original counterparts, each of which shall be deemed to be an original but\nall of which together shall constitute but one and the same Agreement. All exhibits and attachments to this Agreement are\n5\nhereby incorporated by reference herein and made a part hereof as though set forth at length hereinabove.\n14. Termination. Except for Section 9, which shall survive any termination of this Agreement, this Agreement will terminate on the date two\nyears from the date hereof; provided that, such termination shall not relieve any party from liability in respect of breaches by such party prior to such\ntermination.\n15. WAIVER OF TRIAL BY JURY. EACH OF THE PARTIES TO THIS AGREEMENT IRREVOCABLY AND UNCONDITIONALLY\nWAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF, IN CONNECTION WITH OR\nRELATING TO THIS AGREEMENT, THE MATTERS CONTEMPLATED HEREBY, OR THE ACTIONS OF THE PARTIES IN THE\nNEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT OF THIS AGREEMENT.\nThe parties have executed this Agreement as of July 14, 2011\nCOMPANY:\nRECIPIENT:\nMorton’s Restaurant Group, Inc.\nLandry’s, Inc.\n/s/ Scott D. Levin\n/s/ Steven L. Scheinthal\nName: Scott D. Levin\nName: Steven L. Scheinthal\nTitle: SVP and General Counsel\nTitle: EVP & GC\nBy executing this Agreement, Mr. Tilman J. Fertitta and his affiliates hereby agree to be bound by the terms hereof.\n/s/ Tilman J. Fertitta by Steven L. Scheinthal w/permission\nTilman J. Fertitta\n6
+4e504fabc29bf973874c6940e592625b.pdf	effective_date jurisdiction party	Exhibit 10.5\nEMPLOYEE INVENTION ASSIGNMENT, CONFIDENTIALITY, NON-COMPETE\nAND NON-SOLICIT AGREEMENT\nTHIS EMPLOYEE INVENTION ASSIGNMENT, CONFIDENTIALITY, NON-COMPETE AND NON-SOLICIT\nAGREEMENT is entered into as of the 25th day of October, 2017 between the undersigned Yu Zhou and GENEXOSOME\nTECHNOLOGIES INC., a Nevada corporation with a place of business at 83 South Street, Suite 101, Freehold, New Jersey 07728\nUSA, (the “Company”).\nWHEREAS, I have agreed to be an employee of the Company or one of its affiliated entities (collectively referred to herein as the\n“Company”).\nIN CONSIDERATION OF, and as a condition of my employment with the Company (the receipt and sufficiency of which I hereby\nacknowledge) I hereby represent to, and agree with the Company as follows:\n1.\nPurpose of Agreement. I understand that it is critical for the Company to preserve and protect its rights in\n“Inventions” (as defined in Section 2 below), its “Confidential Information” (as defined in Section 7 below) and in all related\nintellectual property rights. Accordingly, I am entering into this Employee Invention Assignment and Confidentiality Agreement (this\n“Agreement”) as a condition of my employment with the Company.\n2.\nDisclosure of Inventions. I will promptly disclose in confidence to the Company all inventions, improvements,\ndesigns, original works of authorship, formulas, processes, compositions of matter, computer software programs, databases, mask\nworks and trade secrets (the “Inventions”) that I make or conceive or first reduce to practice or create, either alone or jointly with\nothers, during the period of my employment, whether or not in the course of my employment, and whether or not such Inventions are\npatentable, copyrightable or protectable as trade secrets.\n3.\nWork for Hire. I acknowledge and agree that any copyrightable works prepared by me within the scope of my\nemployment, including for the avoidance of doubt any such works prepared prior to the date hereof are “works made for hire” under\nthe Copyright Law of the United States and that the Company will be considered the author and owner of such copyrightable works.\n4.\nAssignment of Inventions. I agree that all Inventions that (i) have been or are developed using equipment,\nsupplies, facilities, Confidential Information, or trade secrets of the Company, (ii) result from work performed by me for the\nCompany, or (iii) relate to the Company’s business or current or anticipated research and development (the “Assigned Inventions”),\nwill be the sole and exclusive property of the Company and are hereby irrevocably assigned by me to the Company.\n5.\nAssignment of Other Rights; Moral Rights. In addition to the foregoing assignment of Assigned Inventions to the\nCompany, I hereby irrevocably transfer and assign to the Company: (i) all worldwide patents, patent applications, copyrights, mask\nworks, trade secrets and other intellectual property rights, including but not limited to rights in databases, in any Assigned Inventions,\nalong with any registrations of or applications to register such rights; and (ii) any and all “Moral Rights” (as defined below) that I\nmay have in or with respect to any Assigned Inventions. I also hereby forever waive and agree never to assert any and all Moral\nRights I may have in or with respect to any Assigned Inventions, even after termination of my work on behalf of the Company.\n“Moral Rights” mean any rights to claim authorship of or credit on an Assigned Invention, to object to or prevent the modification or\ndestruction of any Assigned Inventions, or to withdraw from circulation or control the publication or distribution of any Assigned\nInventions, and any similar right, existing under judicial or statutory law of any country or subdivision thereof in the world, or under\nany treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right.”\n1\n6.\nAssistance. I agree to assist the Company in every proper way, at the Company’s cost, to obtain for the Company\nand enforce patents, copyrights, mask work rights, trade secret rights and other legal protections for the Company’s Assigned\nInventions in any and all countries. I will execute any documents that the Company may reasonably request for use in obtaining or\nenforcing such patents, copyrights, mask work rights, trade secrets and other legal protections. My obligations under this paragraph\nwill continue beyond the termination of my employment with the Company, provided that the Company will compensate me at a\nreasonable rate after such termination for time or expenses actually spent by me at the Company’s request on such assistance. I\nappoint the Secretary of the Company as my attorney-in-fact to execute documents on my behalf for this purpose.\n7.\nConfidential Information. I understand that my employment by the Company creates a relationship of confidence\nand trust with respect to any information that may be disclosed to me by the Company and its officers, employees, shareholders or\nagents, whether orally, in writing, by computer or other medium, by demonstration, by supply of samples and parts or in any other\nmanner, or which is otherwise accessible to me, that relates to the business of the Company or to the business of any parent,\nsubsidiary, affiliate, customer or supplier of the Company including all information received by the Company from third parties,\nwhich is subject to an obligation of confidentiality (the “Confidential Information”). Such Confidential Information includes, but is\nnot limited to, Assigned Inventions, computer programming and software, Company products and services, systems, functionality,\ndesigns, hardware, parts, concepts, specifications, features, techniques, plans, marketing, sales, performance, cost, pricing, supplier\nand customer information, data, tables, schedules, contracts and other information concerning the Company and its customers. I\nhereby acknowledge that all such Confidential Information belongs to the Company (or the respective customer, supplier or third\nparty, which supplied it to the Company.)\n8.\nConfidentiality. At all times, both during my employment and after its termination (without limitation in point of\ntime), I will keep and hold all such Confidential Information in strict confidence and trust. I will not use or disclose any Confidential\nInformation without the prior written consent of the Company, except as may be necessary to perform my duties as an employee of\nthe Company for the benefit of the Company. Upon termination of my employment with the Company, I will promptly deliver to the\nCompany all documents and materials of any nature pertaining to my work with the Company. I will not take with me or retain any\ndocuments or materials or copies thereof containing any Confidential Information. I agree that I shall at all times comply with the\nCompany’s Information Security Policy and Procedures from time to time in force. I acknowledge that breach of this policy or any\nother provision of this Agreement may be grounds for immediate dismissal.\n9.\nNo Breach of Agreement or Infringement. I represent that my acceptance of the Company’s offer of employment,\nperformance of all the terms of this Agreement and my duties as an employee of the Company will not so far as I am aware breach\nany invention assignment, proprietary information, confidentiality or similar agreement with any other party, nor infringe the rights\nof any third party. I represent that I will not bring with me to the Company or use in the performance of my duties for the Company\nany documents or materials or intangibles of a former employer or third party that are not generally available to the public or have not\nbeen legally transferred to the Company. I acknowledge that the Company is relying upon my warranty, representation and\nacknowledgement in this paragraph in offering me employment.\n10.\nNon-Complete. I acknowledge that the Company and its affiliates have invested substantial time, money and\nresources in the development and retention of their respective customers, accounts and Confidential Information. You acknowledge\nand agree that any and all “goodwill” associated with any customer or account of the Company or any of its affiliates belongs\nexclusively to the Company and/or its affiliates, as the case may be. I further acknowledge and agree that, during the course of\nperforming services the Company will, and its affiliates may, furnish, disclose or make available to you confidential and proprietary\ninformation related to the Company’s and its affiliates’ business(es) and that the Company and/or one or more affiliates may provide\nyou with unique and specialized training. I also acknowledge that such confidential information and such training have been\ndeveloped and will be developed by the Company and/or one or more affiliates through the expenditure by the Company and/or one\nor more affiliates of substantial time, effort and money and that all such confidential information and training could be used by you to\ncompete with the Company and/or one or more affiliates. In recognition of this, you covenant and agree as follows:\n2\n(a)\nI understand and acknowledge that the Company’s and its affiliates’ business interests are world-wide because the\nCompany’s and its affiliates’ products and/or services are sold in countries around the world and the Company’s and its\naffiliates’ competitors similarly operate from and market their products and/or services in many locations around the world.\nAs used in this Agreement (i) the term “Company Business” means any component or facet of business pertaining to the\nexosome field engaged in by the Company or any of its affiliates at any time anywhere in the world during your engagement\nby the Company and (ii) the term “Competitive Business” means any Company Business engaged in by any third party\nanywhere in the world.\n(b) From the date hereof until the date that is the second anniversary date of the termination of your employment with\nthe Company (or any Affiliate, as applicable and whichever is later) (the “Restricted Period”), I shall not, directly or\nindirectly, without the prior written consent of the Company, individually or in partnership with, as part of a joint venture\nwith, or otherwise in conjunction in any other manner with any other entity:\n(i)\nbe engaged in any manner whatsoever, including, without limitation, as an employee, employer, owner,\npartner, consultant, adviser, principal, agent, stockholder, member or proprietor, in any Competitive Business;\n(ii)\neither individually or on behalf of or through any third party, solicit, divert or appropriate or attempt to\nsolicit, divert or appropriate, for the purpose of competing with any Company Business, any customers or patrons\nof any Company Business, or any prospective customers or patrons with respect to which the Company or any\nAffiliate has developed or made a sales presentation (or similar offering of services); or\n(iii) advise, invest in, lend money to, guarantee the debts or obligations of, or otherwise have any other financial\ninterest in any Competitive Business. Notwithstanding the foregoing, I shall be permitted to make wholly passive\ninvestments in any publicly held Competitive Business, provided that my direct and indirect ownership shall not\nexceed 1 % (by voting power) of the aggregate ownership interests in the entity conducting such Competitive\nBusiness.\n11.\nNo Solicitation.\n(a)\nNo Solicitation of Employees. I acknowledge the importance to the business carried on by the Company and its\naffiliates of the human resources engaged and developed by such entities. Accordingly, during the Restricted Period, I\ncovenant and agree that I shall not, directly or indirectly, induce or solicit or assist any third party in inducing or soliciting\nany employee or consultant of the Company or any affiliate to leave the Company or any affiliate or to accept employment\nor engagement elsewhere. The Company acknowledges that placing advertisements soliciting employees of the type then\nemployed by the Company or its affiliates in newspapers, Internet job sites and similar media generally accessible to the\npublic shall not be deemed to be a breach of this Section.\n3\n(b) No Solicitation of Clients and Suppliers. I acknowledge the importance to the business carried on by the Company\nand its affiliates of the client and supplier relationships developed by it and them and the unique opportunity that your\nemployment or engagement and your access to the Confidential Information offers to interfere with these relationships.\nAccordingly, you covenant and agree that you shall not after the termination of your employment or engagement with the\nCompany, directly or indirectly, for a period of two (2) years, contact or solicit any person who you know to be a\nprospective, current or former client or supplier of the Company or any affiliate for the purpose of selling to such client or\nbuying from such supplier any Company Business products or services.\n12.\nNotification. I hereby authorize the Company to notify my actual or future employers of the terms of this\nAgreement and my responsibilities hereunder.\n13.\nInjunctive Relief. I understand that in the event of a breach or threatened breach of this Agreement by me the\nCompany may suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement.\n14.\nGoverning Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of\nthe State of New Jersey, without giving effect to that body of laws pertaining to conflict of laws. I hereby submit to the jurisdiction of\nand consent to suit in the courts, Federal and State located in the State of New York with respect to any matter or dispute arising out\nof this Agreement.\n15. Severability. If any provision of this Agreement is determined by any court or arbitrator of competent jurisdiction to\nbe invalid, illegal or unenforceable in any respect, such provision will be enforced to the maximum extent possible given the intent of\nthe parties hereto. If such clause or provision cannot be so enforced, such provision shall be stricken from this Agreement and the\nremainder of this Agreement shall be enforced as if such invalid, illegal or unenforceable clause or provision had (to the extent not\nenforceable) never been contained in this Agreement.\n16.\nCounterparts. This Agreement may be executed in any number of counterparts, each of which when so executed\nand delivered will be deemed an original, and all of which together shall constitute one and the same agreement.\n17.\nEntire Agreement. This Agreement and the documents referred to herein constitute the entire agreement and\nunderstanding of the parties with respect to the subject matter of this Agreement, and supersede all prior understandings and\nagreements, whether oral or written, between or among the parties hereto with respect to the specific subject matter hereof.\n18.\nAmendment and Waivers. This Agreement may be amended only by a written agreement executed by each of the\nparties hereto. No amendment of or waiver of, or modification of any obligation under this Agreement will be enforceable unless set\nforth in a writing signed by the party against which enforcement is sought. Any amendment effected in accordance with this section\nwill be binding upon all parties hereto and each of their respective successors and assigns. No delay or failure to require performance\nof any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. No waiver granted\nunder this Agreement as to any one provision herein shall constitute a subsequent waiver of such provision or of any other provision\nherein, nor shall it constitute the waiver of any performance other than the actual performance specifically waived.\n4\n19.\nSuccessors and Assigns; Assignment. Except as otherwise provided in this Agreement, this Agreement, and the\nrights and obligations of the parties hereunder, will be binding upon and inure to the benefit of their respective successors, assigns,\nheirs, executors, administrators and legal representatives. The Company may assign any of its rights and obligations under this\nAgreement to any entity which is my employer. No other party to this Agreement may assign, whether voluntarily or by operation of\nlaw, any of its rights and obligations under this Agreement, except with the prior written consent of the Company.\n20.\nFurther Assurances. The parties agree to execute such further documents and instruments and to take such further\nactions as may be reasonably necessary to carry out the purposes and intent of this Agreement.\nSIGNED THIS 25th DAY OF OCTOBER 2017\n/s/ Yu Zhou\nYu Zhou\nGENEXOSOME TECHNOLOGIES INC.\nBy: /s/David Jin\nName: David Jin\nTitle: Co-CEO\n5	Exhibit 10.5\nEMPLOYEE INVENTION ASSIGNMENT, CONFIDENTIALITY, NON-COMPETE\nAND NON-SOLICIT AGREEMENT\nTHIS EMPLOYEE INVENTION ASSIGNMENT, CONFIDENTIALITY, NON-COMPETE AND NON-SOLICIT\nAGREEMENT is entered into as of the 25th day of October, 2017 between the undersigned Yu Zhou and GENEXOSOME\nTECHNOLOGIES INC., a Nevada corporation with a place of business at 83 South Street, Suite 101, Freehold, NewJersey 07728\nUSA, (the ”Company").\nWHEREAS, I have agreed to be an employee of the Company or one of its affiliated entities (collectively referred to herein as the\n”Company").\nIN CONSIDERATION OE, and as a condition of my employment with the Company (the receipt and sufficiency of which I hereby\nacknowledge) I hereby represent to, and agree with the Company as follows:\n1. Purpose of Agreement. I understand that it is critical for the Company to preserve and protect its rights in\n”Inventions" (as defined in Section 2 below), its ”Confidential Information" (as defined in Section 7 below) and in all related\nintellectual property rights. Accordingly, I am entering into this Employee Invention Assignment and Confidentiality Agreement (this\n”Agreement") as a condition of my employment with the Company.\n2. Disclosure of Inventions. I will promptly disclose in confidence to the Company all inventions, improvements,\ndesigns, original works of authorship, formulas, processes, compositions of matter, computer software programs, databases, mask\nworks and trade secrets (the ”Inventions") that I make or conceive or first reduce to practice or create, either alone or jointly with\nothers, during the period of my employment, whether or not in the course of my employment, and whether or not such Inventions are\npatentable, copyrightable or protectable as trade secrets.\n3. Work for Hire. I acknowledge and agree that any copyrightable works prepared by me within the scope of my\nemployment, including for the avoidance of doubt any such works prepared prior to the date hereof are ”works made for hire" under\nthe Copyright Law of the United States and that the Company will be considered the author and owner of such copyrightable works.\n4. Assignment of Inventions. I agree that all Inventions that (i) have been or are developed using equipment,\nsupplies, facilities, Confidential Information, or trade secrets of the Company, (ii) result from work performed by me for the\nCompany, or (iii) relate to the Company's business or current or anticipated research and development (the ”Assigned Inventions"),\nwill be the sole and exclusive property of the Company and are hereby irrevocably assigned by me to the Company.\n5. Assignment of Other Rights; Moral Rights. In addition to the foregoing assignment of A ssigned Inventions to the\nCompany, I hereby irrevocably transfer and assign to the Company: (i) all worldwide patents, patent applications, copyrights, mask\nworks, trade secrets and other intellectual property rights, including but not limited to rights in databases, in any Assigned Inventions,\nalong with any registrations of or applications to register such rights; and (ii) any and all ”Moral Rights” (as defined below) that I\nmay have in or with respect to any Assigned Inventions. I also hereby forever waive and agree never to assert any and all Moral\nRights I may have in or with respect to any Assigned Inventions, even after termination of my work on behalf of the Company.\n”Moral Rights" mean any rights to claim authorship of or credit on an Assigned Invention, to object to or prevent the modification or\ndestruction of any Assigned Inventions, or to withdraw from circulation or control the publication or distribution of any Assigned\nInventions, and any similar right, existing under judicial or statutory law of any country or subdivision thereof in the world, or under\nany treaty, regardless of whether or not such right is denominated or generally referred to as a ”moral right.”\n6. Assistance. I agree to assist the Company in every proper way, at the Company's cost, to obtain for the Company\nand enforce patents, copyrights, mask work rights, trade secret rights and other legal protections for the Company's Assigned\nInventions in any and all countries. I will execute any documents that the Company may reasonably request for use in obtainng or\nenforcing such patents, copyrights, mask work rights, trade secrets and other legal protections. My obligations under this paragraph\nwill continue beyond the termination of my employment with the Company, provided that the Company will compensate me at a\nreasonable rate after such termination for time or expenses actually spent by me at the Company's request on such assistance. I\nappoint the Secretary of the Company as my attomey-in-fact to execute documents on my behalf for this purpose.\n7. Confidential Information. I understand that my employment by the Company creates a relationship of confidence\nand trust with respect to any information that may be disclosed to me by the Company and its officers, employees, shareholders or\nagents, whether orally, in writing, by computer or other medium, by demonstration, by supply of samples and parts or in any other\nmanner, or which is otherwise accessible to me, that relates to the business of the Company or to the business of any parent,\nsubsidiary, affiliate, customer or supplier of the Company including all information received by the Company from third parties,\nwhich is subject to an obligation of confidentiality (the ”Confidential Information"). Such Confidential Information includes, but is\nnot limited to, Assigned Inventions, computer programming and software, Company products and services, systems, functionality,\ndesigns, hardware, parts, concepts, specifications, features, techniques, plans, marketing, sales, performance, cost, pricing, supplier\nand customer information, data, tables, schedules, contracts and other information concerning the Company and its customers. I\nhereby acknowledge that all such Confidential Information belongs to the Company (or the respective customer, supplier or third\nparty, which supplied it to the Company.)\n8. Confidentiality. At all times, both during my employment and after its termination (without limitation in point of\ntime), I will keep and hold all such Confidential Information in strict confidence and trust. I will not use or disclose any Confidential\nInformation without the prior written consent of the Company, except as may be necessary to perform my duties as an employee of\nthe Company for the benefit of the Company. Upon termination of my employment with the Company, I will promptly deliver to the\nCompany all documents and materials of any nature pertaining to my work with the Company. I will not take with me or retain any\ndocuments or materials or copies thereof containing any Confidential Information. I agree that I shall at all times comply with the\nCompany' s Information Security Policy and Procedures from time to time in force. I acknowledge that breach of this policy or any\nother provision of this Agreement may be grounds for immediate dismissal.\n9. No Breach of Agreement or Infringement. I represent that my acceptance of the Company' s offer of employment,\nperformance of all the terms of this Agreement and my duties as an employee of the Company will not so far as I am aware breach\nany invention assignment, proprietary information, confidentiality or similar agreement with any other party, nor infringe the rights\nof any third party. I represent that I will not bring with me to the Company or use in the performance of my duties for the Company\nany documents or materials or intangibles of a former employer or third party that are not generally available to the public or have not\nbeen legally transferred to the Company. I acknowledge that the Company is relying upon my warranty, representation and\nacknowledgement in this paragraph in offering me employment.\n10. Non-Complete. I acknowledge that the Company and its affiliates have invested substantial time, money and\nresources in the development and retention of their respective customers, accounts and Confidential Information. You acknowledge\nand agree that any and all ”goodwill" associated with any customer or account of the Company or any of its affiliates belongs\nexclusively to the Company and/or its affiliates, as the case may be. I further acknowledge and agree that, during the course of\nperforming services the Company will, and its affiliates may, furnish, disclose or make available to you confidential and proprietary\ninformation related to the Company's and its affiliates’ business(es) and that the Company and/or one or more affiliates may provide\nyou with unique and specialized training. I also acknowledge that such confidential information and such training have been\ndeveloped and will be developed by the Company and/or one or more affiliates through the expenditure by the Company and/or one\nor more affiliates of substantial time, effort and money and that all such confidential information and training could be used by you to\ncompete with the Company and/or one or more affiliates. In recognition of this, you covenant and agree as follows:\n(a) I understand and acknowledge that the Company’s and its affiliates’ business interests are world-wide because the\nCompany’s and its affiliates’ products and/or services are sold in countries around the world and the Company’s and its\naffiliates’ competitors similarly operate from and market their products and/or services in many locations around the world.\nAs used in this Agreement (i) the term ”C ompany Business” means any component or facet of business pertaining to the\nexosome field engaged in by the Company or any of its affiliates at any time anywhere in the world during your engagement\nby the Company and (ii) the term ”Competitive Business” means any Company Business engaged in by any third party\nanywhere in the world.\n(b) From the date hereof until the date that is the second anniversary date of the termination of your employment with\nthe Company (or any Affiliate, as applicable and whichever is later) (the ”Restricted Period”), 1 shall not, directly or\nindirectly, without the prior written consent of the Company, individually or in partnership with, as part of a joint venture\nwith, or otherwise in conjunction in any other manner with any other entity:\n(i) be engaged in any manner whatsoever, including, without limitation, as an employee, employer, owner,\npartner, consultant, adviser, principal, agent, stockholder, member or proprietor, in any Competitive Business;\n(ii) either individually or on behalf of or through any third party, solicit, divert or appropriate or attempt to\nsolicit, divert or appropriate, for the purpose of competing with any Company Business, any customers or patrons\nof any Company Business, or any prospective customers or patrons with respect to which the Company or any\nAffiliate has developed or made a sales presentation (or similar offering of services) ,- or\n(iii) advise, invest in, lend money to, guarantee the debts or obligations of, or otherwise have any other financial\ninterest in any Competitive Business. Notwithstanding the foregoing, I shall be permitted to make wholly passive\ninvestments in any publicly held Competitive Business, provided that my direct and indirect ownership shall not\nexceed 1 % (by voting power) of the aggregate ownership interests in the entity conducting such Competitive\nB usiness.\n11. No Solicitation.\n(a) N0 Solicitation of Employees. I acknowledge the importance to the business carried on by the Company and its\naffiliates of the human resources engaged and developed by such entities. Accordingly, during the Restricted Period, 1\ncovenant and agree that I shall not, directly or indirectly, induce or solicit or assist any third party in inducing or soliciting\nany employee or consultant of the Company or any affiliate to leave the Company or any affiliate or to accept employment\nor engagement elsewhere. The Company acknowledges that placing advertisements soliciting employees of the type then\nemployed by the Company or its affiliates in newspapers, Internet job sites and similar media generally accessible to the\npublic shall not be deemed to be a breach of this Section.\n(b) No Solicitation of Clients and Suppliers. I acknowledge the importance to the business carried on by the Company\nand its affiliates of the client and supplier relationships developed by it and them and the unique opportunity that your\nemployment or engagement and your access to the Confidential Information offers to interfere with these relationships.\nAccordingly, you covenant and agree that you shall not after the termination of your employment or engagement with the\nCompany, directly or indirectly, for a period of two (2) years, contact or solicit any person who you know to be a\nprospective, current or former client or supplier of the Company or any affiliate for the purpose of selling to such client or\nbuying from such supplier any Company Business products or services.\n12. Notification. I hereby authorize the Company to notify my actual or future employers of the terms of this\nA greement and my responsibilities hereunder.\n13. Iniunctive Relief. I understand that in the event of a breach or threatened breach of this Agreement by me the\nCompany may suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement.\n14. Governin Law; urisdiction. This Agreement will be governed by and construed in accordance with the laws of\nthe State of New Jersey, without giving effect to that body of laws pertaining to conflict of laws. I hereby submit to the jurisdiction of\nand consent to suit in the courts, Federal and State located in the State of New Y ork with respect to any matter or dispute arising out\nof this A greement.\n15. Severabilig. If any provision of this A greement is determined by any court or arbitrator of competent jurisdiction to\nbe invalid, illegal or unenforceable in any respect, such provision will be enforced to the maximum extent possible given the intent of\nthe parties hereto. If such clause or provision cannot be so enforced, such provision shall be stricken from this Agreement and the\nremainder of this Agreement shall be enforced as if such invalid, illegal or unenforceable clause or provision had (to the extent not\nenforceable) never been contained in this A greement.\n16. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed\nand delivered will be deemed an original, and all of which together shall constitute one and the same agreement.\n17. Entire Agreement. This Agreement and the documents referred to herein constitute the entire agreement and\nunderstanding of the parties with respect to the subject matter of this Agreement, and supersede all prior understandings and\nagreements, whether oral or written, between or among the parties hereto with respect to the specific subject matter hereof.\n18. Amendment and Waivers. This Agreement may be amended only by a written agreement executed by each of the\nparties hereto. No amendment of or waiver of, or modification of any obligation under this Agreement will be enforceable unless set\nforth in a writing signed by the party against which enforcement is sought. Any amendment effected in accordance with this section\nwill be binding upon all parties hereto and each of their respective successors and assigns. No delay or failure to require performance\nof any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. No waiver granted\nunder this A greement as to any one provision herein shall constitute a subsequent waiver of such provision or of any other provision\nherein, nor shall it constitute the waiver of any performance other than the actual performance specifically waived.\n19. Successors and Assigps; Assignment. Except as otherwise provided in this Agreement, this Agreement, and the\nrights and obligations of the parties hereunder, will be binding upon and inure to the benefit of their respective successors, assigns,\nheirs, executors, administrators and legal representatives. The Company may assign any of its rights and obligations under this\nAgreement to any entity which is my employer. No other party to this Agreement may assign, whether voluntarily or by operation of\nlaw, any of its rights and obligations under this Agreement, except with the prior written consent of the Company.\n20. Further Assurances. The parties agree to execute such further documents and instruments and to take such further\nactions as may be reasonably necessary to carry out the purposes and intent of this Agreement.\nSIG NED THIS 25th DAY OF OCTOBER 2017\n/s/ Yu Zhou\nYu Zhou\nGENEXOSOME TECHNOLOGIES INC.\nBy: /s/David]in\nName: DavidJin\nTitle: Co-CEO	Exhibit 10.5\nEMPLOYEE INVENTION ASSIGNMENT, CONFIDENTIALITY, NON-COMPETE\nAND NON-SOLICIT AGREEMENT\nTHIS EMPLOYEE INVENTION ASSIGNMENT, CONFIDENTIALITY, NON-COMPETE AND NON-SOLICIT\nAGREEMENT is entered into as of the 25th day of October, 2017 between the undersigned Yu Zhou and GENEXOSOME\nTECHNOLOGIES INC., a Nevada corporation with a place of business at 83 South Street, Suite 101, Freehold, New Jersey 07728\nUSA, (the "Company").\nWHEREAS, I have agreed to be an employee of the Company or one of its affiliated entities (collectively referred to herein as the\n"Company").\nIN CONSIDERATION OF, and as a condition of my employment with the Company (the receipt and sufficiency of which I hereby\nacknowledge) I hereby represent to, and agree with the Company as follows:\n1.\nPurpose of Agreement I understand that it is critical for the Company to preserve and protect its rights in\n"Inventions" (as defined in Section 2 below), its "Confidential Information" (as defined in Section 7 below) and in all related\nintellectual property rights. Accordingly I am entering into this Employee Invention Assignment and Confidentiality Agreement (this\n"Agreement") as a condition of my employment with the Company.\n2.\nDisclosure of Inventions. I will promptly disclose in confidence to the Company all inventions, improvements,\ndesigns, original works of authorship, formulas, processes, compositions of matter, computer software programs, databases, mask\nworks and trade secrets (the "Inventions") that I make or conceive or first reduce to practice or create, either alone or jointly with\nothers, during the period of my employment, whether or not in the course of my employment, and whether or not such Inventions are\npatentable, copyrightable or protectable as trade secrets.\n3.\nWork for Hire. I acknowledge and agree that any copyrightable works prepared by me within the scope of my\nemployment including for the avoidance of doubt any such works prepared prior to the date hereof are "works made for hire" under\nthe Copyright Law of the United States and that the Company will be considered the author and owner of such copyrightable works.\n4.\nssignment of Inventions. I agree that all Inventions that (i) have been or are developed using equipment,\nsupplies, facilities, Confidentia Information or trade secrets of the Company, (ii) result from work performed by me for the\nCompany, or (iii) relate to the Company's business or current or anticipated research and development (the "Assigned Inventions"),\nwill be the sole and exclusive property of the Company and are hereby irrevocably assigned by me to the Company.\n5.\nAssignment of ther Rights; Moral Rights. In addition to the foregoing assignment of A ssigned Inventions to the\nCompany, I hereby irrevocably transfer and assign to the Company: (i) all wordwide patents, patent applications, copyrights, mask\nworks, trade secrets and other intellectual property rights, including but not limited to rights in databases, in any Assigned Inventions,\nalong\nwith\nany\nregistrations\nof\nor\napplications\nto\nregister\nsuch\nrights;\nand\n(ii)\nany\nand\nall\n"Moral\nRights"\n(as\ndefined\nbelow)\nthat\nI\nmay have in or with respect to any Assigned Inventions. I also hereby forever waive and agree never to assert any and all Moral\nRights I may have in or with respect to any Assigned Inventions, even after termination of my work on behalf of the Company.\n"Moral Rights" mean any rights to claim authorship of or credit on an Assigned Invention, to object to or prevent the modification or\ndestruction of any Assigned Inventions, or to withdraw from circulation or control the publication or distribution of any Assigned\nInventions, and any similar right, existing under judicial or statutory law of any country or subdivision thereof in the world, or under\nany treaty, regardless of whether or not such right is denominated or generally referred to as a "moral right."\n6.\nAssistance. I agree to assist the Company in every proper way, at the Company's cost, to obtain for the Company\nand enforce patents, copyrights, mask work rights, trade secret rights and other legal protections for the Company's Assigned\nInventions in any and all countries. I will execute any documents that the Company may reasonably request for use in obtaining or\nenforcing such patents, copyrights, mask work rights, trade secrets and other legal protections. My obligations under this paragraph\nwill continue beyond the termination of my employment with the Company, provided that the Company will compensate me at a\nreasonable rate after such termination for time or expenses actually spent by me at the Company's request on such assistance. I\nappoint the Secretary of the Company as my attorney-in-fact to execute documents on my behalf for this purpose.\n7.\nConfidential Information. I understand that my employment by the Company creates a relationship of confidence\nand trust with respect to any information that may be disclosed to me by the Company and its officers, employees, shareholders or\nagents, whether orally, in writing, by computer or other medium, by demonstration, by supply of samples and parts or in any other\nmanner, or which is otherwise accessible to me, that relates to the business of the Company or to the business of any parent,\nsubsidiary, affiliate, customer or supplier of the Company including all information received by the Company from third parties,\nwhich is subject to an obligation of confidentiality (the "Confidential Information"). Such Confidential Information includes, but is\nnot limited to, Assigned Inventions, computer programming and software, Company products and services, systems, functionality,\ndesigns,\nhardware,\nparts,\nconcepts,\nspecifications,\nfeatures,\ntechniques,\nplans,\nmarketing,\nsales,\nperformance,\ncost,\npricing,\nsupplier\nand customer information, data, tables, schedules, contracts and other information concerning the Company and its customers. I\nhereby acknowledge that all such Confidential Information belongs to the Company (or the respective customer, supplier or third\nparty, which supplied it to the Company.)\n8.\nConfidentiality. A all times, both during my employment and after its termination (without limitation in point of\ntime), I will keep and hold all such Confidential Information in strict confidence and trust. I will not use or disclose any Confidential\nInformation without the prior written consent of the Company, except as may be necessary to perform my duties as an employee of\nthe Company for the benefit of the Company. Upon termination of my employment with the Company, I will promptly deliver to the\nCompany\nall\ndocuments\nand\nmaterials\nof\nany\nnature\npertaining\nto\nmy\nwork\nwith\nthe\nCompany.\nI\nwill\nnot\ntake\nwith\nme\nor\nretain\nany\ndocuments or materials or copies thereof containing any Confidential Information. I agree that I shall at all times comply with the\nCompany's Information Security Policy and Procedures from time to time in force. I acknowledge that breach of this policy or any\nother provision of this Agreement may be grounds for immediate dismissal.\n9.\nNo Breach of Agreement or Infringement. I represent that my acceptance of the Company's offer of employment,\nperformance of all the terms of this Agreement and my duties as an employee of the Company will not so far as I am aware breach\nany invention assignment, proprietary information, confidentiality or similar agreement with any other party, nor infringe the rights\nof any third party. I represent that I will not bring with me to the Company or use in the performance of my duties for the Company\nany\ndocuments\nor\nmaterials\nor\nintangibles\nof\na\nformer\nemployer\nor\nthird\nparty\nthat\nare\nnot\ngenerally\navailable\nto\nthe\npublic\nor\nhave\nnot\nbeen legally transferred to the Company. I acknowledge that the Company is relying upon my warranty, representation and\nacknowledgement in this paragraph in offering me employment.\n10.\nNon-Complete. I acknowledge that the Company and its affiliates have invested substantial time, money and\nresources in the development and retention of their respective customers, accounts and Confidential Information. ou acknowledge\nand agree that any and all "goodwill" associated with any customer or account of the Company or any of its affiliates belongs\nexclusively to the Company and/or its affiliates, as the case may be. I further acknowledge and agree that, during the course of\nperforming services the Company will, and its affiliates may, furnish, disclose or make available to you confidential and proprietary\ninformation\nrelated\nto\nthe\nCompany's\nand\nits\naffiliates'\nbusiness(es)\nand\nthat\nthe\nCompany\nand/or\none\nor\nmore\naffiliates\nmay\nprovide\nyou with unique and specialized training. I also acknowledge that such confidential information and such training have been\ndeveloped and will be developed by the Company and/or one or more affiliates through the expenditure by the Company and/or one\nor more affiliates of substantial time, effort and money and that all such confidential information and training could be used by you to\ncompete with the Company and/or one or more affiliates. In recognition of this, you covenant and agree as follows:\nN\n(a)\nI understand and acknowledge that the Company's and its affiliates' business interests are world-wide because the\nCompany's and its affiliates' products and/or services are sold in countries around the world and the Company's and its\naffiliates' competitors similarly operate from and market their products and/or services in many locations around the world.\nAs used in this A greement (i) the term "Company Business" means any component or facet of business pertaining to the\nexosome field engaged in by the Company or any of its affiliates at any time anywhere in the world during your engagement\nby the Company and (ii) the term Competitive Business" means any Company Business engaged in by any third party\nanywhere in the world.\n(b)\nFrom the date hereof until the date that is the second anniversary date of the termination of your employment with\nthe Company (or any Affiliate, as applicable and whichever is later) (the "Restricted Period"), I shall not, directly or\nindirectly, without the prior written consent of the Company, individually or in partnership with, as part of a joint venture\nwith, or otherwise in conjunction in any other manner with any other entity:\n(i)\nbe engaged in any manner whatsoever including, without limitation, as an employee, employer, owner,\npartner, consultant, adviser, principal, agent, stockholder, member or proprietor, in any Competitive Business;\n(ii)\neither individually or on behalf of or through any third party, solicit, divert or appropriate or attempt to\nsolicit, divert or appropriate, for the purpose of competing with any Company Business, any customers or patrons\nof any Company Business, or any prospective customers or patrons with respect to which the Company or any\nAffiliate has developed or made a sales presentation (or similar offering of services); or\n(iii)\nadvise, invest in, lend money to, guarantee the debts or obligations of, or otherwise have any other financial\ninterest in any Competitive Business. Notwithstanding the foregoing, I shall be permitted to make wholly passive\ninvestments in any publicly held Competitive Business, provided that my direct and indirect ownership shall not\nexceed 1 % (by voting power) of the aggregate ownership interests in the entity conducting such Competitive\nBusiness.\n11.\nNo Solicitation.\n(a)\nNo Solicitation of Employees I acknowledge the importance to the business carried on by the Company and its\naffiliates of the human resources engaged and developed by such entities. Accordingly, during the Restricted Period, I\ncovenant and agree that I shall not, directly or indirectly, induce or solicit or assist any third party in inducing or soliciting\nany employee or consultant of the Company or any affiliate to leave the Company or any affiliate or to accept employment\nor engagement elsewhere. The Company acknowledges that placing advertisements soliciting employees of the type then\nemployed by the Company or its affiliates in newspapers, Internet job sites and similar media generally accessible to the\npublic shall not be deemed to be a breach of this Section.\n3\n(b)\nNo Solicitation of Clients and Suppliers. I acknowledge the importance to the business carried on by the Company\nand its affiliates of the client and supplier relationships developed by it and them and the unique opportunity that your\nemployment or engagement and your access to the Confidential Information offers to interfere with these relationships.\nAccordingly, you covenant and agree that you shall not after the termination of your employment or engagement with the\nCompany, directly or indirectly, for a period of two (2) years, contact or solicit any person who you know to be\na\nprospective, current or former client or supplier of the Company or any affiliate for the purpose of selling to such client or\nbuying from such supplier any Company Business products or services.\n12.\nNotification. I hereby authorize the Company to notify my actual or future employers of the terms of this\nAgreement and my responsibilities hereunder.\n13.\nInjunctive Relief. I understand that in the event of a breach or threatened breach of this Agreement by me the\nCompany may suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement.\n14.\nGoverning Law; urisdiction. This greement will be governed by and construed in accordance with the laws of\nthe State of New Jersey, without giving effect to that body of laws pertaining to conflict of laws. I hereby submit to the jurisdiction of\nand consent to suit in the courts, Federal and State located in the State of New Y ork with respect to any matter or dispute arising out\nof this A greement.\n15.\nSeverability. If any provision of this A greement is determined by any court or arbitrator of competent jurisdiction to\nbe invalid illegal or unenforceable in any respect, such provision will be enforced to the maximum extent possible given the intent of\nthe parties hereto. If such clause or provision cannot be so enforced, such provision shall be stricken from this Agreement and the\nremainder of this greement shall be enforced as if such invalid, illegal or unenforceable clause or provision had (to the extent not\nenforceable) never been contained in this Agreement.\n16.\nCounterparts. This Agreement may be executed in any number of counterparts, each of which when so executed\nand delivered will be deemed an original, and all of which together shall constitute one and the same agreement.\n17.\nEntire Agreement. This Agreement and the documents referred to herein constitute the entire agreement and\nunderstanding of the parties with respect to the subject matter of this Agreement, and supersede all prior understandings and\nagreements, whether oral or written, between or among the parties hereto with respect to the specific subject matter hereof.\n18.\nAmendment and Waivers. This A greement may be amended only by a written agreement executed by each of the\nparties hereto. No amendment of or waiver of, or modification of any obligation under this Agreement wil be enforceable unless set\nforth in a writing signed by the party against which enforcement is sought Any amendment effected in accordance with this section\nwill be binding upon all parties hereto and each of their respective successors and assigns. No delay or failure to require performance\nof any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. No waiver granted\nunder this A greement as to any one provision herein shall constitute a subsequent waiver of such provision or of any other provision\nherein, nor shall it constitute the waiver of any performance other than the actual performance specifically waived.\n4\n19.\nSuccessors and Assigns; Assignment. Except as otherwise provided in this Agreement, this Agreement, and the\nrights and obligations of the parties hereunder, will be binding upon and inure to the benefit of their respective successors, assigns,\nheirs, executors, administrators and legal representatives. The Company may assign any of its rights and obligations under this\nAgreement to any entity which is my employer. No other party to this A greement may assign, whether voluntarily or by operation of\nlaw, any of its rights and obligations under this Agreement except with the prior written consent of the Company.\n20.\nFurther Assurances. The parties agree to execute such further documents and instruments and to take such further\nactions as may be reasonably necessary to carry out the purposes and intent of this Agreement\nSIGNED THIS 25th DAY OF OCTOBER 2017\n/s/ Y u Zhou\nY u Zhou\nGENEXOSOME TECHNOLOGIES INC.\nBy: /s/David /s/D avid Jin\nName: David Jin\nTitle: Co-CEO\n5	Exhibit 10.5\nEMPLOYEE INVENTION ASSIGNMENT, CONFIDENTIALITY, NON-COMPETE\nAND NON-SOLICIT AGREEMENT\nTHIS EMPLOYEE INVENTION ASSIGNMENT, CONFIDENTIALITY, NON-COMPETE AND NON-SOLICIT\nAGREEMENT is entered into as of the 25th day of October, 2017 between the undersigned Yu Zhou and GENEXOSOME\nTECHNOLOGIES INC., a Nevada corporation with a place of business at 83 South Street, Suite 101, Freehold, New Jersey 07728\nUSA, (the “Company”).\nWHEREAS, I have agreed to be an employee of the Company or one of its affiliated entities (collectively referred to herein as the\n“Company”).\nIN CONSIDERATION OF, and as a condition of my employment with the Company (the receipt and sufficiency of which I hereby\nacknowledge) I hereby represent to, and agree with the Company as follows:\n1.\nPurpose of Agreement. I understand that it is critical for the Company to preserve and protect its rights in\n“Inventions” (as defined in Section 2 below), its “Confidential Information” (as defined in Section 7 below) and in all related\nintellectual property rights. Accordingly, I am entering into this Employee Invention Assignment and Confidentiality Agreement (this\n“Agreement”) as a condition of my employment with the Company.\n2.\nDisclosure of Inventions. I will promptly disclose in confidence to the Company all inventions, improvements,\ndesigns, original works of authorship, formulas, processes, compositions of matter, computer software programs, databases, mask\nworks and trade secrets (the “Inventions”) that I make or conceive or first reduce to practice or create, either alone or jointly with\nothers, during the period of my employment, whether or not in the course of my employment, and whether or not such Inventions are\npatentable, copyrightable or protectable as trade secrets.\n3.\nWork for Hire. I acknowledge and agree that any copyrightable works prepared by me within the scope of my\nemployment, including for the avoidance of doubt any such works prepared prior to the date hereof are “works made for hire” under\nthe Copyright Law of the United States and that the Company will be considered the author and owner of such copyrightable works.\n4.\nAssignment of Inventions. I agree that all Inventions that (i) have been or are developed using equipment,\nsupplies, facilities, Confidential Information, or trade secrets of the Company, (ii) result from work performed by me for the\nCompany, or (iii) relate to the Company’s business or current or anticipated research and development (the “Assigned Inventions”),\nwill be the sole and exclusive property of the Company and are hereby irrevocably assigned by me to the Company.\n5.\nAssignment of Other Rights; Moral Rights. In addition to the foregoing assignment of Assigned Inventions to the\nCompany, I hereby irrevocably transfer and assign to the Company: (i) all worldwide patents, patent applications, copyrights, mask\nworks, trade secrets and other intellectual property rights, including but not limited to rights in databases, in any Assigned Inventions,\nalong with any registrations of or applications to register such rights; and (ii) any and all “Moral Rights” (as defined below) that I\nmay have in or with respect to any Assigned Inventions. I also hereby forever waive and agree never to assert any and all Moral\nRights I may have in or with respect to any Assigned Inventions, even after termination of my work on behalf of the Company.\n“Moral Rights” mean any rights to claim authorship of or credit on an Assigned Invention, to object to or prevent the modification or\ndestruction of any Assigned Inventions, or to withdraw from circulation or control the publication or distribution of any Assigned\nInventions, and any similar right, existing under judicial or statutory law of any country or subdivision thereof in the world, or under\nany treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right.”\n1\n6.\nAssistance. I agree to assist the Company in every proper way, at the Company’s cost, to obtain for the Company\nand enforce patents, copyrights, mask work rights, trade secret rights and other legal protections for the Company’s Assigned\nInventions in any and all countries. I will execute any documents that the Company may reasonably request for use in obtaining or\nenforcing such patents, copyrights, mask work rights, trade secrets and other legal protections. My obligations under this paragraph\nwill continue beyond the termination of my employment with the Company, provided that the Company will compensate me at a\nreasonable rate after such termination for time or expenses actually spent by me at the Company’s request on such assistance. I\nappoint the Secretary of the Company as my attorney-in-fact to execute documents on my behalf for this purpose.\n7.\nConfidential Information. I understand that my employment by the Company creates a relationship of confidence\nand trust with respect to any information that may be disclosed to me by the Company and its officers, employees, shareholders or\nagents, whether orally, in writing, by computer or other medium, by demonstration, by supply of samples and parts or in any other\nmanner, or which is otherwise accessible to me, that relates to the business of the Company or to the business of any parent,\nsubsidiary, affiliate, customer or supplier of the Company including all information received by the Company from third parties,\nwhich is subject to an obligation of confidentiality (the “Confidential Information”). Such Confidential Information includes, but is\nnot limited to, Assigned Inventions, computer programming and software, Company products and services, systems, functionality,\ndesigns, hardware, parts, concepts, specifications, features, techniques, plans, marketing, sales, performance, cost, pricing, supplier\nand customer information, data, tables, schedules, contracts and other information concerning the Company and its customers. I\nhereby acknowledge that all such Confidential Information belongs to the Company (or the respective customer, supplier or third\nparty, which supplied it to the Company.)\n8.\nConfidentiality. At all times, both during my employment and after its termination (without limitation in point of\ntime), I will keep and hold all such Confidential Information in strict confidence and trust. I will not use or disclose any Confidential\nInformation without the prior written consent of the Company, except as may be necessary to perform my duties as an employee of\nthe Company for the benefit of the Company. Upon termination of my employment with the Company, I will promptly deliver to the\nCompany all documents and materials of any nature pertaining to my work with the Company. I will not take with me or retain any\ndocuments or materials or copies thereof containing any Confidential Information. I agree that I shall at all times comply with the\nCompany’s Information Security Policy and Procedures from time to time in force. I acknowledge that breach of this policy or any\nother provision of this Agreement may be grounds for immediate dismissal.\n9.\nNo Breach of Agreement or Infringement. I represent that my acceptance of the Company’s offer of employment,\nperformance of all the terms of this Agreement and my duties as an employee of the Company will not so far as I am aware breach\nany invention assignment, proprietary information, confidentiality or similar agreement with any other party, nor infringe the rights\nof any third party. I represent that I will not bring with me to the Company or use in the performance of my duties for the Company\nany documents or materials or intangibles of a former employer or third party that are not generally available to the public or have not\nbeen legally transferred to the Company. I acknowledge that the Company is relying upon my warranty, representation and\nacknowledgement in this paragraph in offering me employment.\n10.\nNon-Complete. I acknowledge that the Company and its affiliates have invested substantial time, money and\nresources in the development and retention of their respective customers, accounts and Confidential Information. You acknowledge\nand agree that any and all “goodwill” associated with any customer or account of the Company or any of its affiliates belongs\nexclusively to the Company and/or its affiliates, as the case may be. I further acknowledge and agree that, during the course of\nperforming services the Company will, and its affiliates may, furnish, disclose or make available to you confidential and proprietary\ninformation related to the Company’s and its affiliates’ business(es) and that the Company and/or one or more affiliates may provide\nyou with unique and specialized training. I also acknowledge that such confidential information and such training have been\ndeveloped and will be developed by the Company and/or one or more affiliates through the expenditure by the Company and/or one\nor more affiliates of substantial time, effort and money and that all such confidential information and training could be used by you to\ncompete with the Company and/or one or more affiliates. In recognition of this, you covenant and agree as follows:\n2\n(a)\nI understand and acknowledge that the Company’s and its affiliates’ business interests are world-wide because the\nCompany’s and its affiliates’ products and/or services are sold in countries around the world and the Company’s and its\naffiliates’ competitors similarly operate from and market their products and/or services in many locations around the world.\nAs used in this Agreement (i) the term “Company Business” means any component or facet of business pertaining to the\nexosome field engaged in by the Company or any of its affiliates at any time anywhere in the world during your engagement\nby the Company and (ii) the term “Competitive Business” means any Company Business engaged in by any third party\nanywhere in the world.\n(b) From the date hereof until the date that is the second anniversary date of the termination of your employment with\nthe Company (or any Affiliate, as applicable and whichever is later) (the “Restricted Period”), I shall not, directly or\nindirectly, without the prior written consent of the Company, individually or in partnership with, as part of a joint venture\nwith, or otherwise in conjunction in any other manner with any other entity:\n(i)\nbe engaged in any manner whatsoever, including, without limitation, as an employee, employer, owner,\npartner, consultant, adviser, principal, agent, stockholder, member or proprietor, in any Competitive Business;\n(ii)\neither individually or on behalf of or through any third party, solicit, divert or appropriate or attempt to\nsolicit, divert or appropriate, for the purpose of competing with any Company Business, any customers or patrons\nof any Company Business, or any prospective customers or patrons with respect to which the Company or any\nAffiliate has developed or made a sales presentation (or similar offering of services); or\n(iii) advise, invest in, lend money to, guarantee the debts or obligations of, or otherwise have any other financial\ninterest in any Competitive Business. Notwithstanding the foregoing, I shall be permitted to make wholly passive\ninvestments in any publicly held Competitive Business, provided that my direct and indirect ownership shall not\nexceed 1 % (by voting power) of the aggregate ownership interests in the entity conducting such Competitive\nBusiness.\n11.\nNo Solicitation.\n(a)\nNo Solicitation of Employees. I acknowledge the importance to the business carried on by the Company and its\naffiliates of the human resources engaged and developed by such entities. Accordingly, during the Restricted Period, I\ncovenant and agree that I shall not, directly or indirectly, induce or solicit or assist any third party in inducing or soliciting\nany employee or consultant of the Company or any affiliate to leave the Company or any affiliate or to accept employment\nor engagement elsewhere. The Company acknowledges that placing advertisements soliciting employees of the type then\nemployed by the Company or its affiliates in newspapers, Internet job sites and similar media generally accessible to the\npublic shall not be deemed to be a breach of this Section.\n3\n(b) No Solicitation of Clients and Suppliers. I acknowledge the importance to the business carried on by the Company\nand its affiliates of the client and supplier relationships developed by it and them and the unique opportunity that your\nemployment or engagement and your access to the Confidential Information offers to interfere with these relationships.\nAccordingly, you covenant and agree that you shall not after the termination of your employment or engagement with the\nCompany, directly or indirectly, for a period of two (2) years, contact or solicit any person who you know to be a\nprospective, current or former client or supplier of the Company or any affiliate for the purpose of selling to such client or\nbuying from such supplier any Company Business products or services.\n12.\nNotification. I hereby authorize the Company to notify my actual or future employers of the terms of this\nAgreement and my responsibilities hereunder.\n13.\nInjunctive Relief. I understand that in the event of a breach or threatened breach of this Agreement by me the\nCompany may suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement.\n14.\nGoverning Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of\nthe State of New Jersey, without giving effect to that body of laws pertaining to conflict of laws. I hereby submit to the jurisdiction of\nand consent to suit in the courts, Federal and State located in the State of New York with respect to any matter or dispute arising out\nof this Agreement.\n15. Severability. If any provision of this Agreement is determined by any court or arbitrator of competent jurisdiction to\nbe invalid, illegal or unenforceable in any respect, such provision will be enforced to the maximum extent possible given the intent of\nthe parties hereto. If such clause or provision cannot be so enforced, such provision shall be stricken from this Agreement and the\nremainder of this Agreement shall be enforced as if such invalid, illegal or unenforceable clause or provision had (to the extent not\nenforceable) never been contained in this Agreement.\n16.\nCounterparts. This Agreement may be executed in any number of counterparts, each of which when so executed\nand delivered will be deemed an original, and all of which together shall constitute one and the same agreement.\n17.\nEntire Agreement. This Agreement and the documents referred to herein constitute the entire agreement and\nunderstanding of the parties with respect to the subject matter of this Agreement, and supersede all prior understandings and\nagreements, whether oral or written, between or among the parties hereto with respect to the specific subject matter hereof.\n18.\nAmendment and Waivers. This Agreement may be amended only by a written agreement executed by each of the\nparties hereto. No amendment of or waiver of, or modification of any obligation under this Agreement will be enforceable unless set\nforth in a writing signed by the party against which enforcement is sought. Any amendment effected in accordance with this section\nwill be binding upon all parties hereto and each of their respective successors and assigns. No delay or failure to require performance\nof any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. No waiver granted\nunder this Agreement as to any one provision herein shall constitute a subsequent waiver of such provision or of any other provision\nherein, nor shall it constitute the waiver of any performance other than the actual performance specifically waived.\n4\n19.\nSuccessors and Assigns; Assignment. Except as otherwise provided in this Agreement, this Agreement, and the\nrights and obligations of the parties hereunder, will be binding upon and inure to the benefit of their respective successors, assigns,\nheirs, executors, administrators and legal representatives. The Company may assign any of its rights and obligations under this\nAgreement to any entity which is my employer. No other party to this Agreement may assign, whether voluntarily or by operation of\nlaw, any of its rights and obligations under this Agreement, except with the prior written consent of the Company.\n20.\nFurther Assurances. The parties agree to execute such further documents and instruments and to take such further\nactions as may be reasonably necessary to carry out the purposes and intent of this Agreement.\nSIGNED THIS 25th DAY OF OCTOBER 2017\n/s/ Yu Zhou\nYu Zhou\nGENEXOSOME TECHNOLOGIES INC.\nBy: /s/David Jin\nName: David Jin\nTitle: Co-CEO\n5
+4f0e455a90c53f8e40e09d324aab4ea3.pdf	effective_date jurisdiction party term	EX-99.2 3 ko8k22807x99-2.htm FULL AND COMPLETE RELEASE AND AGREEMENT ON COMPETITION,\nTRADE SECRETS AND CONFIDENTIALITY\nEXHIBIT 99.2\nFULL AND COMPLETE RELEASE\nAND AGREEMENT ON COMPETITION,\nTRADE SECRETS AND CONFIDENTIALITY\nExecutive Release.\nI, Mary Minnick, in consideration of severance benefit payments under The Coca-Cola Company Severance Pay Plan (the “Company\nSeverance Plan”), the payments and benefits described in the attached letter dated February 28, 2007 (the “Separation Letter”), and other good\nand valuable consideration, for myself and my heirs, executors, administrators and assigns, do hereby knowingly and voluntarily release and\nforever discharge The Coca-Cola Company and its subsidiaries, affiliates, joint ventures, joint venture partners, and benefit plans (collectively\nthe “Company"), and their respective current and former directors, officers, administrators, trustees, employees, agents, and other representatives,\nfrom all debts, claims, actions, causes of action (including without limitation those under the Fair Labor Standards Act of 1938, as amended,\n29 U.S.C . § 201 et seq.; the Employee Retirement Income Security Act of 1974, as amended, 29 U.S .C . § 1001 et seq.; the Worker Adjustment\nand Retraining Notification Act of 1988, 29 U.S.C . § 2101 et seq.; and those federal, state, local, and foreign laws prohibiting employment\ndiscrimination based on age, sex, race, color, national origin, religion, disability, veteran or marital status, sexual orientation, or any other\nprotected trait or characteristic, or retaliation for engaging in any protected activity, including without limitation the Age Discrimination in\nEmployment Act of 1967, 29 U.S.C . § 621 et seq., as amended by the Older Workers Benefit Protection Act, P.L . 101 -433; the Equal Pay Act of\n1963, 9 U.S.C .§ 206, et seq.; Title VII of The Civil Rights Act of 1964, as amended, 42 U.S.C . § 2000e et seq.; the Civil Rights Act of 1866,\n42 U.S.C . § 1981; the Civil Rights Act of 1991, 42 U.S .C . § 1981a; the Americans with Disabilities Act, 42 U.S.C . § 12101 et seq.; the\nRehabilitation Act of 1973, 29 U.S.C . § 791 et seq.; the Family and Medical Leave Act of 1993, 28 U.S .C . §§ 2601 and 2611 et seq.; and\ncomparable state, local, and foreign causes of action, whether statutory or common law), suits, dues, sums of money, accounts, reckonings,\ncovenants, contracts, claims for costs or attorneys' fees, controversies, agreements, promises, and all liabilities of any kind or nature whatsoever,\nat law, in equity, or otherwise, KNOWN OR UNKNOWN, fixed or contingent, which I ever had, now have, or may have, or which I, my heirs,\nexecutors, administrators or assigns hereafter can, shall, or may have, from the beginning of time through and including February 28, 2007 (the\n“Effective Date”), including without limitation those arising out of or related to my employment or separation from employment with the\nCompany. This Full and Complete Release and Agreement on Competition, Trade Secrets and Confidentiality is sometimes herein referred to as\nthe “Agreement.”\nNotwithstanding the foregoing, it is understood and agreed that I do not hereby waive, but rather I have retained and shall continue to\nhave all rights and entitlements to receive and the Company shall remain obligated to fully perform and pay (or cause to be performed or paid)\n(i) all amounts or payments owed to me as contemplated under the Separation Letter, (ii) all of my rights to seek and receive indemnification\nfrom the Company for and with respect to all acts, errors or omissions committed by me in my capacity as a shareholder, director, officer,\nemployee, fiduciary, agent or representative of the Company all in the manner provided under the Company’s by-laws (as hereinafter\ncontemplated) and applicable law, and (iii) all of my accrued and vested benefits (including pension or deferred compensation benefits) as\ndetermined through and including the Effective Date under the Company’s applicable and governing plans and programs including without\nlimitation all rights received or attributable to any coverage extended me under any insurance policies maintained with or through third parties.\nI fully understand and agree that:\n1.\nthis Agreement is in exchange for severance benefits under the Company Severance Plan, the payments and benefits\ndescribed in the Separation Letter, and other special compensation to which I would otherwise not be entitled;\n2.\nI am hereby advised to consult with an attorney before signing this Agreement;\n3.\nI have 21 days from my receipt of this Agreement within which to consider whether to sign it;\n4.\nI have seven days following my signature of this Agreement to revoke the Agreement; and\n5.\nthis Agreement shall not become effective or enforceable until the revocation period of seven days has expired.\nIf I choose to revoke this Agreement, I must do so by notifying the Company in writing.\nIf there is any claim for loss of consortium, or any other similar claim, arising out of or related to my employment or separation of\nemployment with the Company, I will indemnify and hold the Company harmless from any liability, including costs and expenses (as well as\nreasonable attorneys' fees) incurred by the Company as a result of any such claim.\nI additionally understand and agree that this Agreement is not and shall not be construed to be an admission of liability of any kind on\nthe part of the Company or any of the other persons or entities hereby released.\nCompany Release.\nFor and in consideration of my release of the Company under the preceding provisions and my undertaking of all covenants and\nagreements provided under this Agreement and other good and valuable consideration, the Company (as defined herein) does hereby knowingly\nand voluntarily release and forever discharge me and my heirs, executors, administrators and assigns (collectively the “Executive Released\nParties"), from all debts, claims, actions, causes of action, suits, dues, sums of money, accounts, reckonings, covenants, contracts, claims for\ncosts or attorneys' fees, controversies, agreements, promises, and all liabilities of any kind or nature whatsoever, at law, in equity, or otherwise,\nKNOWN OR UNKNOWN, fixed or contingent, which the Company ever had, now have, or may have, or which the Company hereafter can,\nshall, or may have, from the beginning of time through and including the Effective Date, including without limitation those arising out of or\nrelated to my employment or my separation from employment with the Company.\nNotwithstanding the foregoing, it is understood and agreed that the Company does not hereby waive, but rather the Company shall have\nretained and continue to have all rights and entitlements to enforce all of its rights and my obligations as against me as provided or contemplated\nunder and in accordance with the terms of this Agreement or the Separation Letter.\nIt is further understood and agreed that this Agreement is not and shall not be construed to be an admission of liability of any kind on\nthe part of any one or more of the Executive Released Parties.\nFuture Cooperation.\nI covenant and agree that I shall, to the extent reasonably requested in writing, fully cooperate with the Company in any investigation\nand/or threatened or pending litigation (now or in the future) in which the Company is a party or by which the Company is directly affected, and\nregarding matters which I, by virtue of my employment with the Company, have knowledge or information relevant to said litigation, including,\nbut not limited to (i) meeting with representatives of the Company to prepare for testimony and to provide truthful information regarding my\nknowledge, and (ii) providing, in any jurisdiction in which the Company requests, truthful testimony relevant to said litigation; provided that in\nall events the Company shall (a) reimburse me for actual and reasonable expenses incurred in connection with such cooperation including all\ntravel, lodging and accommodations, (b) remain and be exclusively responsible for all costs incurred in undertaking such litigation including all\nattorneys’ fees, court costs, and other expenses consistent with the Company’s by-laws, and (c) notify me as promptly as possible as to its need\nfor my assistance and cooperate with me in scheduling my participation so as to reasonably accommodate my other personal and professional\nobligations and commitments.\nTrade Secrets and Confidential Information.\nI covenant and agree that I have held and shall continue to hold in confidence all Trade Secrets of the Company that came into my\nknowledge during my employment by the Company and shall not disclose, publish or make use of at any time such Trade Secrets for as long as\nthe information remains a Trade Secret. "Trade Secret" means any technical or non-technical data, formula, pattern, compilation, program,\ndevice, method, technique, drawing, process, financial data, financial plan, product plan, list of actual or potential customers or suppliers or other\ninformation similar to any of the foregoing, which (i) derives economic value, actual or potential, from not being generally known to and not\nbeing readily ascertainable by proper means by, other persons who can derive economic value from its disclosure or use, and (ii) is the subject of\nefforts that are reasonable under the circumstances to maintain its secrecy.\nI also covenant and agree that, for the period beginning on the date I sign this Agreement and ending on February 28, 2009 (the\n“Nondisclosure Period”), I will hold in confidence all Confidential Information of the Company that came into my knowledge during my\nemployment by the Company and will not disclose, publish or make use of such Confidential Information. "Confidential Information" means any\ndata or information, other than Trade Secrets, that is valuable to the Company and not generally known to the public or to competitors of the\nCompany but shall not include either (i) any information which is available from any public source other than by means of my disclosure of such\ninformation to such source, or (ii) any information generated by me in the course of my employment which consists of contact information\nrelated to my personal or professional affiliations consisting solely of names, addresses, phone numbers and e-mail addresses.\n2\nThe restrictions stated in this Agreement are in addition to and not in lieu of protections afforded to trade secrets and confidential\ninformation under applicable state law. Nothing in this Agreement is intended to or shall be interpreted as diminishing or otherwise limiting the\nCompany’s right under applicable state law. Notwithstanding the foregoing, nothing contained herein shall prevent me from disclosing or\notherwise utilizing any information (i) in any manner required by applicable law, judicial order or other governmental mandate or investigation\nprovided I shall advise the Company of any such intended disposition or use and reasonably cooperate with the Company in allowing the\nCompany to seek and obtain from the recipient governmental or judicial body any protective order or assurance of confidentiality regarding such\ninformation or (ii) in fulfillment of my duties or obligations owed to the Company.\nReturn of Materials.\nI further covenant and agree that I have or shall promptly deliver to the Company all memoranda, notes, records, manuals or other\ndocuments, including all copies of such materials and all documentation prepared or produced in connection therewith, containing Trade Secrets\nor Confidential Information regarding the Company's business, whether made or compiled by me or furnished to me by virtue of my employment\nwith the Company. I shall promptly deliver to the Company all vehicles, computers, credit cards, telephones, handheld electronic devices, office\nequipment, and other property furnished to me by virtue of my employment with the Company.\nNo Publicity.\nExcept as otherwise authorized or agreed to by the Chief Executive Officer of the Company (the “CEO”), during the Nondisclosure\nPeriod, I will not publish any opinion, fact, or material, deliver any lecture or address, participate in the making of any film, radio broadcast or\ntelevision transmission, or communicate with any representative of the media relating to confidential matters regarding the business or affairs of\nthe Company which I was involved with during my employment; provided, that nothing contained herein shall prevent me from undertaking any\nsuch activities otherwise prohibited hereunder with respect to presentations focusing on me and my personal experience or knowledge which\nmay include ancillary and historical recitations of my past experiences with the Company and which do not otherwise involve disclosure of\nmatters or materials which have not been previously or otherwise publicly released.\nNon Compete and Non Solicitation.\nDefinitions.\nFor the purposes of this Section, in addition to all other terms defined under this Agreement, the following definitions apply:\n(a)\n"Non Solicitation Period" means the period beginning on the date I sign this Agreement and ending on February 28,\n2009.\n(b)\n“Restricted Activities” means the development or oversight of marketing, innovation, operation or financial\nactivities or strategies for Restricted Businesses.\n(c)\n"Territory" means any location in which the Company conducts business.\n(d)\n“Restricted Businesses” means 1) companies whose primary business is the manufacture, sale, distribution and\nmarketing of carbonated soft drinks, coffee, tea, milk, water, juices or fruit-based beverages (“Non-alcoholic Beverages”) and 2) companies a\nsubstantial portion of whose business activities includes the manufacture, sale, distribution and marketing of Non-alcoholic Beverages, but for\nwhom such business(es) may not be the company’s primary business (“Non-Beverage Companies”).\n(e)\n“Competing Business Segment” means any subsidiary, division or unit of the business of a company, other than a\nProhibited Company, where such subsidiary, division or unit manufactures, sells, distributes or markets Non-alcoholic Beverages.\n(f)\n“Prohibited Companies” shall mean each of (i) PepsiCo, Inc. or its subsidiaries or affiliates including members of the\nPepsi Bottling Group, (ii) Groupe Danone, (iii) Nestle S.A., (iv) Cadbury Schweppes, plc, and (v) Cott Corporation, all of which aforenamed\ncompanies engage in the Restricted Business.\n(g)\n“Release Payment” shall mean an amount equal to the difference between (i) the total base salary paid to me under\nthe Company Severance Plan, whether in a lump sum or in a series of payments, for any period commencing or occurring from and after March\n1, 2007 (such amount being anticipated as totaling $1,261,260) less (ii) any amounts charged or withheld from those payments (including all\nunemployment, FICA or similar non income taxes) described under subclause (i) hereof other than local, state or federal income taxes paid and\ncredited to me or any other deductions therefrom applied in satisfaction of obligations owed or benefits received by me.\n3\nNon Compete.\nI hereby covenant with the Company that I will not, within the Territory prior to February 28, 2009, without the prior written\nconsent of the CEO, engage in any Restricted Activities for or on behalf of (including in a consulting capacity) any one or more of the Prohibited\nCompanies (those activities in which I am so prohibited from engaging under this sentence being herein referred to as the “Absolute Activities”).\nSubject to the exceptions and conditions hereinafter specified, I hereby further covenant with the Company that I will not, within the Territory\nprior to February 28, 2008, without the prior written consent of the CEO, engage in any Restricted Activities for or on behalf of (including in a\nconsulting capacity) any Restricted Business other than the Prohibited Companies (those activities from which I am prohibited from engaging\nunder this sentence being herein referred to as the “Conditional Activities”). Notwithstanding the foregoing, in all events it is agreed that I shall\nnot be prohibited hereunder and shall remain entitled to perform either (i) services for Non-Beverage Companies (other than the Prohibited\nCompanies) that have a Competing Business Segment, provided I do not perform services for such Competing Business Segment, and provided\nfurther that I notify the CEO of the nature of any such services being rendered to any Non-Beverage Companies in writing within a reasonable\ntime prior to beginning performance of such services, (ii) services for any companies or other entities which do not engage in the Restricted\nBusiness within the Territory, (iii) Absolute Activities from and after March 1, 2009, or (iv) Conditional Activities from and after March 1,\n2008.\nNon Solicitation of Employees.\nI hereby covenant and agree that I will not, within the Territory and during the Non Solicitation Period, without the prior\nwritten consent of the CEO, solicit or attempt to solicit for employment for or on behalf of any corporation, partnership, venture or other business\nentity any person who, on the last day of my employment with the Company or within six months prior to that date, was employed by the\nCompany as a manager or executive and with whom I had professional interaction during the last twelve months of my employment with the\nCompany (whether or not such person would commit a breach of contract).\nNon Solicitation of Customers.\nI hereby covenant and agree that I will not, within the Territory and during the Non Solicitation Period, without the prior\nwritten consent of the CEO, solicit or attempt to solicit, directly or indirectly, any business comprising or related to the manufacture, sale,\ndistribution and marketing of Non-alcoholic Beverages for any Prohibited Company from any of the Company’s customers, including actively\nsought prospective customers, with whom I had professional interaction during my employment with the Company (those activities from which I\nam prohibited from engaging under this sentence being herein referred to as the “Absolute Solicitations”). Subject to the exceptions and\nconditions hereinafter specified, I hereby further covenant and agree that I will not, within the Territory, on or prior to February 28, 2008, without\nthe prior written consent of the CEO, solicit or attempt to solicit, directly or indirectly, any business comprising or related to the manufacture,\nsale, distribution and marketing of Non-alcoholic Beverages for any Competing Business Segment of the Restricted Businesses from any of the\nCompany’s customers, including actively sought prospective customers, with whom I had professional interaction during my employment with\nthe Company (those activities from which I am prohibited from engaging under this sentence being herein referred to as the “Conditional\nSolicitations”). Notwithstanding the foregoing, in all events it is agreed that I shall not be prohibited hereunder and shall remain entitled to\nundertake either (i) solicitations for any companies or other entities which do not engage in the Restricted Business within the Territory, (ii)\nAbsolute Solicitations from and after March 1, 2009, or (iii) Conditional Solicitations from and after March 1, 2008.\n4\nRelease.\nNotwithstanding the foregoing, it is agreed that in the event I shall desire to engage in any Conditional Activities and/or Conditional\nSolicitations otherwise prohibited hereunder prior to March 1, 2008, then prior to my commencing performance of such Conditional Activities\nand/or Conditional Solicitations, I shall notify the CEO of such intention seeking the Company’s consent to my undertaking of same which\nconsent the CEO shall cause the Company to consider in good faith and within its reasonable discretion. Upon receipt of such request, the CEO\nshall promptly, but in all events within ten business days, notify me in writing of the Company’s granting of its consent to my undertaking of\nsuch Conditional Activities and/or Conditional Solicitations or the Company’s decision to refuse its granting of such consent. In the event the\nCompany refuses to consent to my undertaking of any such Conditional Activities and/or Conditional Solicitations hereunder, I may, at my sole\nelection and upon paying to the Company the Release Payment, be entitled to fully undertake any Conditional Activities and/or Conditional\nSolicitations without same being subject to any further restriction or prohibition hereunder, except as otherwise limited by applicable law. Upon\nmy remittance of the Release Payment to the Company hereunder, the Company shall accept same as full, complete and exclusive liquidated\ndamages and shall have no rights or entitlements to enforce or seek enforcement of my covenant and agreement not to engage in any Conditional\nActivities or Conditional Solicitations hereunder and shall not have and hereby waive, release and relinquish any and all claims, assertion or\ndamages the Company may have by reason or in connection with my undertaking of any Conditional Activities and/or Conditional Solicitations.\nNotwithstanding the foregoing, it is understood and agreed that the Company does not hereby waive, but rather the Company shall have retained\nthe right to enforce all other provisions of this Agreement, including but not limited to my agreement not to engage in any Absolute Activities or\nAbsolute Solicitations hereunder and my obligations not to disclose Trade Secrets and Confidential Information and that my release from the\nprohibition against my undertaking of any Conditional Activities and Conditional Solicitations hereunder shall not relieve me from my covenant\nand agreement not to engage in any Absolute Activities or Absolute Solicitations hereunder or my obligations not to disclose Trade Secrets or\nConfidential Information pursuant to this Agreement or applicable law.\nReasonable and Necessary Restrictions.\nI acknowledge that during the course of my employment with the Company I have received or will receive and had or will have access\nto Confidential Information and Trade Secrets of the Company, including but not limited to confidential and secret business and marketing plans,\nstrategies, and studies, detailed client/customer/bottler lists and information relating to the operations and business requirements of those\nclients/customers/bottlers and, accordingly, I am willing to enter into the covenants contained in this Agreement in order to provide the Company\nwith what I consider to be reasonable protection for its interests.\nI acknowledge that the restrictions, prohibitions and other provisions hereof, are reasonable, fair and equitable in scope, terms and\nduration, and are necessary to protect the legitimate business interests of the Company.\nSubject to my being released from the prohibition against my undertaking of Conditional Activities and Conditional Solicitations upon\nmy remittance of the Release Payment as contemplated hereunder, I acknowledge and agree that in the event I breach, or threaten in any way to\nbreach, or it is inevitable that I will breach, any of the provisions of this Agreement, damages shall be an inadequate remedy and the Company\nshall be entitled, without bond, to injunctive or other equitable relief in addition to all other rights otherwise available to the Company at law or\nin equity.\nIndemnification.\nNothing in this Agreement shall affect any rights I may have under Article VII of the Company’s by-laws in effect as of the date of this\nAgreement.\n5\nNon-Disparagement.\nI agree that I will not make any statement, written or verbal, in any forum or media, or take any action in disparagement of the\nCompany, including but not limited to negative references to the Company or its products, services, corporate policies, or current or former\nofficers or employees, customers, suppliers, or business partners or associates. The Company agrees that neither it nor any of its executives or\nsenior management level employees will make any statement, written or verbal, in any forum or media, or take any action in disparagement of\nme, including but not limited to negative references to me or my levels of competency or aptitudes.\nComplete Agreement.\nThis Agreement together with the Separation Letter is the complete understanding between me and the Company in respect of the\nsubject matter of this Agreement and supersedes all prior agreements relating to the same subject matter. I have not relied upon any\nrepresentations, promises or agreements of any kind except those set forth herein and in the Separation Letter in signing this Agreement.\nSeverability.\nIn the event that any provision of this Agreement should be held to be invalid or unenforceable, each and all of the other provisions of\nthis Agreement shall remain in full force and effect. If any provision of this Agreement is found to be invalid or unenforceable, such provision\nshall be modified as necessary to permit this Agreement to be upheld and enforced to the maximum extent permitted by law.\nGoverning Law.\nExcept to the extent preempted by Federal Law, this Agreement is to be governed and enforced under the laws of the State of Georgia\n(except to the extent that Georgia conflicts of law rules would call for the application of the law of another jurisdiction) and any and all disputes\narising under this Agreement are to be resolved exclusively by courts sitting in Georgia. I hereby consent to the jurisdiction of such courts.\nSuccessors and Assigns.\nThis Agreement inures to the benefit of the Company and its successors and assigns and to the benefit of my heirs, executors,\nadministrators, to the extent not precluded by the Company’s benefit or compensation plans.\nAmendment/Waiver.\nNo amendment, modification or discharge of this Agreement shall be valid or binding unless set forth in writing and duly executed by\neach of the parties hereto.\nAcknowledgment.\nEach of the undersigned have carefully read this Agreement, fully understand each of its terms and conditions, and intend to abide by\nthis Agreement in every respect. As such, each of the undersigned individually or through its duly authorized officers knowingly and voluntarily\nsigns this Agreement under her or its respective hand and seal as her or its respective legally binding and enforceable obligation.\n/s/ Mary Minnick\nMary Minnick\nDate: February 28, 2007\nTHE COCA-COLA COMPANY\nBy: /s/ Geoffrey J. Kelly____________\nTitle: Vice President and General Counsel\nDate: February 28, 2007	EX-99.2 3 ko8k22807x99-2.htm FULL AND COMPLETE RELEASE AND AGREEMENT ON COMPETITION,\nTRADE SECRETS AND CONFIDENTIALITY\nEXHIBIT 99.2\nFULL AND COMPLETE RELEASE\nAND AGREEMENT ON COMPETITION,\nTRADE SECRETS AND CONFIDENTIALITY\nExecutive Release.\nI, Mary Minnick, in consideration of severance benefit payments under The Coca-Cola Company Severance Pay Plan (the “Company\nSeverance Plan”), the payments and benefits described in the attached letter dated February 28, 2007 (the “Separation Letter”), and other good\nand valuable consideration, for myself and my heirs, executors, administrators and assigns, do hereby knowingly and voluntarily release and\nforever discharge The Coca-Cola Company and its subsidiaries, affiliates, joint ventures, joint venture partners, and benefit plans (collectively\nthe “Company"), and their respective current and former directors, officers, administrators, trustees, employees, agents, and other representatives,\nfrom all debts, claims, actions, causes of action (including without limitation those under the Fair Labor Standards Act of 1938, as amended,\n29 U.S.C. § 201 et seq.; the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001 et seq.; the Worker Adjustment\nand Retraining Notification Act of 1988, 29 U.S.C. § 2101 et seq.; and those federal, state, local, and foreign laws prohibiting employment\ndiscrimination based on age, sex, race, color, national origin, religion, disability, veteran or marital status, sexual orientation, or any other\nprotected trait or characteristic, or retaliation for engaging in any protected activity, including without limitation the Age Discrimination in\nEmployment Act of 1967, 29 U.S.C. § 621 et seq., as amended by the Older Workers Benefit Protection Act, P.L.. 101-433; the Equal Pay Act of\n1963, 9 U.S.C.§ 206, et seq.; Title VII of The Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Civil Rights Act of 1866,\n42 U.S.C. § 1981; the Civil Rights Act of 1991, 42 U.S.C. § 1981a; the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; the\nRehabilitation Act of 1973, 29 U.S.C. § 791 et seq.; the Family and Medical Leave Act of 1993, 28 U.S.C. §8§ 2601 and 2611 et seq.; and\ncomparable state, local, and foreign causes of action, whether statutory or common law), suits, dues, sums of money, accounts, reckonings,\ncovenants, contracts, claims for costs or attorneys' fees, controversies, agreements, promises, and all liabilities of any kind or nature whatsoever,\nat law, in equity, or otherwise, KNOWN OR UNKNOWN, fixed or contingent, which I ever had, now have, or may have, or which I, my heirs,\nexecutors, administrators or assigns hereafter can, shall, or may have, from the beginning of time through and including February 28, 2007 (the\n“Effective Date”), including without limitation those arising out of or related to my employment or separation from employment with the\nCompany. This Full and Complete Release and Agreement on Competition, Trade Secrets and Confidentiality is sometimes herein referred to as\nthe “Agreement.”\nNotwithstanding the foregoing, it is understood and agreed that I do not hereby waive, but rather I have retained and shall continue to\nhave all rights and entitlements to receive and the Company shall remain obligated to fully perform and pay (or cause to be performed or paid)\n(i) all amounts or payments owed to me as contemplated under the Separation Letter, (ii) all of my rights to seek and receive indemnification\nfrom the Company for and with respect to all acts, errors or omissions committed by me in my capacity as a shareholder, director, officer,\nemployee, fiduciary, agent or representative of the Company all in the manner provided under the Company’s by-laws (as hereinafter\ncontemplated) and applicable law, and (iii) all of my accrued and vested benefits (including pension or deferred compensation benefits) as\ndetermined through and including the Effective Date under the Company’s applicable and governing plans and programs including without\nlimitation all rights received or attributable to any coverage extended me under any insurance policies maintained with or through third parties.\nI fully understand and agree that:\n1. this Agreement is in exchange for severance benefits under the Company Severance Plan, the payments and benefits\ndescribed in the Separation Letter, and other special compensation to which I would otherwise not be entitled,;\n2. I am hereby advised to consult with an attorney before signing this Agreement;\n3. I have 21 days from my receipt of this Agreement within which to consider whether to sign it;\n4. I have seven days following my signature of this Agreement to revoke the Agreement; and\n5. this Agreement shall not become effective or enforceable until the revocation period of seven days has expired.\nIf I choose to revoke this Agreement, I must do so by notifying the Company in writing.\nIf there is any claim for loss of consortium, or any other similar claim, arising out of or related to my employment or separation of\nemployment with the Company, I will indemnify and hold the Company harmless from any liability, including costs and expenses (as well as\nreasonable attorneys' fees) incurred by the Company as a result of any such claim.\nI additionally understand and agree that this Agreement is not and shall not be construed to be an admission of liability of any kind on\nthe part of the Company or any of the other persons or entities hereby released.\nCompany Release.\nFor and in consideration of my release of the Company under the preceding provisions and my undertaking of all covenants and\nagreements provided under this Agreement and other good and valuable consideration, the Company (as defined herein) does hereby knowingly\nand voluntarily release and forever discharge me and my heirs, executors, administrators and assigns (collectively the “Executive Released\nParties"), from all debts, claims, actions, causes of action, suits, dues, sums of money, accounts, reckonings, covenants, contracts, claims for\ncosts or attorneys' fees, controversies, agreements, promises, and all liabilities of any kind or nature whatsoever, at law, in equity, or otherwise,\nKNOWN OR UNKNOWN, fixed or contingent, which the Company ever had, now have, or may have, or which the Company hereafter can,\nshall, or may have, from the beginning of time through and including the Effective Date, including without limitation those arising out of or\nrelated to my employment or my separation from employment with the Company.\nNotwithstanding the foregoing, it is understood and agreed that the Company does not hereby waive, but rather the Company shall have\nretained and continue to have all rights and entitlements to enforce all of its rights and my obligations as against me as provided or contemplated\nunder and in accordance with the terms of this Agreement or the Separation Letter.\nIt is further understood and agreed that this Agreement is not and shall not be construed to be an admission of liability of any kind on\nthe part of any one or more of the Executive Released Parties.\nFuture Cooperation.\nI covenant and agree that I shall, to the extent reasonably requested in writing, fully cooperate with the Company in any investigation\nand/or threatened or pending litigation (now or in the future) in which the Company is a party or by which the Company is directly affected, and\nregarding matters which I, by virtue of my employment with the Company, have knowledge or information relevant to said litigation, including,\nbut not limited to (i) meeting with representatives of the Company to prepare for testimony and to provide truthful information regarding my\nknowledge, and (ii) providing, in any jurisdiction in which the Company requests, truthful testimony relevant to said litigation; provided that in\nall events the Company shall (a) reimburse me for actual and reasonable expenses incurred in connection with such cooperation including all\ntravel, lodging and accommodations, (b) remain and be exclusively responsible for all costs incurred in undertaking such litigation including all\nattorneys’ fees, court costs, and other expenses consistent with the Company’s by-laws, and (c) notify me as promptly as possible as to its need\nfor my assistance and cooperate with me in scheduling my participation so as to reasonably accommodate my other personal and professional\nobligations and commitments.\nTrade Secrets and Confidential Information.\nI covenant and agree that I have held and shall continue to hold in confidence all Trade Secrets of the Company that came into my\nknowledge during my employment by the Company and shall not disclose, publish or make use of at any time such Trade Secrets for as long as\nthe information remains a Trade Secret. "Trade Secret" means any technical or non-technical data, formula, pattern, compilation, program,\ndevice, method, technique, drawing, process, financial data, financial plan, product plan, list of actual or potential customers or suppliers or other\ninformation similar to any of the foregoing, which (i) derives economic value, actual or potential, from not being generally known to and not\nbeing readily ascertainable by proper means by, other persons who can derive economic value from its disclosure or use, and (ii) is the subject of\nefforts that are reasonable under the circumstances to maintain its secrecy.\nI also covenant and agree that, for the period beginning on the date I sign this Agreement and ending on February 28, 2009 (the\n“Nondisclosure Period”), I will hold in confidence all Confidential Information of the Company that came into my knowledge during my\nemployment by the Company and will not disclose, publish or make use of such Confidential Information. "Confidential Information" means any\ndata or information, other than Trade Secrets, that is valuable to the Company and not generally known to the public or to competitors of the\nCompany but shall not include either (i) any information which is available from any public source other than by means of my disclosure of such\ninformation to such source, or (ii) any information generated by me in the course of my employment which consists of contact information\nrelated to my personal or professional affiliations consisting solely of names, addresses, phone numbers and e-mail addresses.\nThe restrictions stated in this Agreement are in addition to and not in lieu of protections afforded to trade secrets and confidential\ninformation under applicable state law. Nothing in this Agreement is intended to or shall be interpreted as diminishing or otherwise limiting the\nCompany’s right under applicable state law. Notwithstanding the foregoing, nothing contained herein shall prevent me from disclosing or\notherwise utilizing any information (i) in any manner required by applicable law, judicial order or other governmental mandate or investigation\nprovided I shall advise the Company of any such intended disposition or use and reasonably cooperate with the Company in allowing the\nCompany to seek and obtain from the recipient governmental or judicial body any protective order or assurance of confidentiality regarding such\ninformation or (ii) in fulfillment of my duties or obligations owed to the Company.\nReturn of Materials.\nI further covenant and agree that I have or shall promptly deliver to the Company all memoranda, notes, records, manuals or other\ndocuments, including all copies of such materials and all documentation prepared or produced in connection therewith, containing Trade Secrets\nor Confidential Information regarding the Company's business, whether made or compiled by me or furnished to me by virtue of my employment\nwith the Company. I shall promptly deliver to the Company all vehicles, computers, credit cards, telephones, handheld electronic devices, office\nequipment, and other property furnished to me by virtue of my employment with the Company.\nNo Publicity.\nExcept as otherwise authorized or agreed to by the Chief Executive Officer of the Company (the “CEO”), during the Nondisclosure\nPeriod, I will not publish any opinion, fact, or material, deliver any lecture or address, participate in the making of any film, radio broadcast or\ntelevision transmission, or communicate with any representative of the media relating to confidential matters regarding the business or affairs of\nthe Company which I was involved with during my employment; provided, that nothing contained herein shall prevent me from undertaking any\nsuch activities otherwise prohibited hereunder with respect to presentations focusing on me and my personal experience or knowledge which\nmay include ancillary and historical recitations of my past experiences with the Company and which do not otherwise involve disclosure of\nmatters or materials which have not been previously or otherwise publicly released.\nNon Compete and Non Solicitation.\nDefinitions.\nFor the purposes of this Section, in addition to all other terms defined under this Agreement, the following definitions apply:\n(a) "Non Solicitation Period" means the period beginning on the date I sign this Agreement and ending on February 28,\n2009.\n(b) “Restricted Activities” means the development or oversight of marketing, innovation, operation or financial\nactivities or strategies for Restricted Businesses.\n(0 "Territory" means any location in which the Company conducts business.\n(d) “Restricted Businesses” means 1) companies whose primary business is the manufacture, sale, distribution and\nmarketing of carbonated soft drinks, coffee, tea, milk, water, juices or fruit-based beverages (“Non-alcoholic Beverages”) and 2) companies a\nsubstantial portion of whose business activities includes the manufacture, sale, distribution and marketing of Non-alcoholic Beverages, but for\nwhom such business(es) may not be the company’s primary business (“Non-Beverage Companies™).\n(e) “Competing Business Segment” means any subsidiary, division or unit of the business of a company, other than a\nProhibited Company, where such subsidiary, division or unit manufactures, sells, distributes or markets Non-alcoholic Beverages.\n® “Prohibited Companies” shall mean each of (i) PepsiCo, Inc. or its subsidiaries or affiliates including members of the\nPepsi Bottling Group, (ii) Groupe Danone, (iii) Nestle S.A., (iv) Cadbury Schweppes, plc, and (v) Cott Corporation, all of which aforenamed\ncompanies engage in the Restricted Business.\n(8 “Release Payment” shall mean an amount equal to the difference between (i) the total base salary paid to me under\nthe Company Severance Plan, whether in a lump sum or in a series of payments, for any period commencing or occurring from and after March\n1, 2007 (such amount being anticipated as totaling $1,261,260) less (ii) any amounts charged or withheld from those payments (including all\nunemployment, FICA or similar non income taxes) described under subclause (i) hereof other than local, state or federal income taxes paid and\ncredited to me or any other deductions therefrom applied in satisfaction of obligations owed or benefits received by me.\n3\nNon Compete.\nI hereby covenant with the Company that I will not, within the Territory prior to February 28, 2009, without the prior written\nconsent of the CEO, engage in any Restricted Activities for or on behalf of (including in a consulting capacity) any one or more of the Prohibited\nCompanies (those activities in which I am so prohibited from engaging under this sentence being herein referred to as the “Absolute Activities”).\nSubject to the exceptions and conditions hereinafter specified, I hereby further covenant with the Company that I will not, within the Territory\nprior to February 28, 2008, without the prior written consent of the CEO, engage in any Restricted Activities for or on behalf of (including in a\nconsulting capacity) any Restricted Business other than the Prohibited Companies (those activities from which I am prohibited from engaging\nunder this sentence being herein referred to as the “Conditional Activities”). Notwithstanding the foregoing, in all events it is agreed that I shall\nnot be prohibited hereunder and shall remain entitled to perform either (i) services for Non-Beverage Companies (other than the Prohibited\nCompanies) that have a Competing Business Segment, provided I do not perform services for such Competing Business Segment, and provided\nfurther that I notify the CEO of the nature of any such services being rendered to any Non-Beverage Companies in writing within a reasonable\ntime prior to beginning performance of such services, (ii) services for any companies or other entities which do not engage in the Restricted\nBusiness within the Territory, (iii) Absolute Activities from and after March 1, 2009, or (iv) Conditional Activities from and after March 1,\n2008.\nNon Solicitation of Employees.\nI hereby covenant and agree that I will not, within the Territory and during the Non Solicitation Period, without the prior\nwritten consent of the CEO, solicit or attempt to solicit for employment for or on behalf of any corporation, partnership, venture or other business\nentity any person who, on the last day of my employment with the Company or within six months prior to that date, was employed by the\nCompany as a manager or executive and with whom I had professional interaction during the last twelve months of my employment with the\nCompany (whether or not such person would commit a breach of contract).\nNon Solicitation of Customers.\nI hereby covenant and agree that I will not, within the Territory and during the Non Solicitation Period, without the prior\nwritten consent of the CEO, solicit or attempt to solicit, directly or indirectly, any business comprising or related to the manufacture, sale,\ndistribution and marketing of Non-alcoholic Beverages for any Prohibited Company from any of the Company’s customers, including actively\nsought prospective customers, with whom I had professional interaction during my employment with the Company (those activities from which I\nam prohibited from engaging under this sentence being herein referred to as the “Absolute Solicitations”). Subject to the exceptions and\nconditions hereinafter specified, I hereby further covenant and agree that I will not, within the Territory, on or prior to February 28, 2008, without\nthe prior written consent of the CEO, solicit or attempt to solicit, directly or indirectly, any business comprising or related to the manufacture,\nsale, distribution and marketing of Non-alcoholic Beverages for any Competing Business Segment of the Restricted Businesses from any of the\nCompany’s customers, including actively sought prospective customers, with whom I had professional interaction during my employment with\nthe Company (those activities from which I am prohibited from engaging under this sentence being herein referred to as the “Conditional\nSolicitations”). Notwithstanding the foregoing, in all events it is agreed that I shall not be prohibited hereunder and shall remain entitled to\nundertake either (i) solicitations for any companies or other entities which do not engage in the Restricted Business within the Territory, (ii)\nAbsolute Solicitations from and after March 1, 2009, or (iii) Conditional Solicitations from and after March 1, 2008.\nRelease.\nNotwithstanding the foregoing, it is agreed that in the event I shall desire to engage in any Conditional Activities and/or Conditional\nSolicitations otherwise prohibited hereunder prior to March 1, 2008, then prior to my commencing performance of such Conditional Activities\nand/or Conditional Solicitations, I shall notify the CEO of such intention seeking the Company’s consent to my undertaking of same which\nconsent the CEO shall cause the Company to consider in good faith and within its reasonable discretion. Upon receipt of such request, the CEO\nshall promptly, but in all events within ten business days, notify me in writing of the Company’s granting of its consent to my undertaking of\nsuch Conditional Activities and/or Conditional Solicitations or the Company’s decision to refuse its granting of such consent. In the event the\nCompany refuses to consent to my undertaking of any such Conditional Activities and/or Conditional Solicitations hereunder, I may, at my sole\nelection and upon paying to the Company the Release Payment, be entitled to fully undertake any Conditional Activities and/or Conditional\nSolicitations without same being subject to any further restriction or prohibition hereunder, except as otherwise limited by applicable law. Upon\nmy remittance of the Release Payment to the Company hereunder, the Company shall accept same as full, complete and exclusive liquidated\ndamages and shall have no rights or entitlements to enforce or seek enforcement of my covenant and agreement not to engage in any Conditional\nActivities or Conditional Solicitations hereunder and shall not have and hereby waive, release and relinquish any and all claims, assertion or\ndamages the Company may have by reason or in connection with my undertaking of any Conditional Activities and/or Conditional Solicitations.\nNotwithstanding the foregoing, it is understood and agreed that the Company does not hereby waive, but rather the Company shall have retained\nthe right to enforce all other provisions of this Agreement, including but not limited to my agreement not to engage in any Absolute Activities or\nAbsolute Solicitations hereunder and my obligations not to disclose Trade Secrets and Confidential Information and that my release from the\nprohibition against my undertaking of any Conditional Activities and Conditional Solicitations hereunder shall not relieve me from my covenant\nand agreement not to engage in any Absolute Activities or Absolute Solicitations hereunder or my obligations not to disclose Trade Secrets or\nConfidential Information pursuant to this Agreement or applicable law.\nReasonable and Necessary Restrictions.\nI acknowledge that during the course of my employment with the Company I have received or will receive and had or will have access\nto Confidential Information and Trade Secrets of the Company, including but not limited to confidential and secret business and marketing plans,\nstrategies, and studies, detailed client/customer/bottler lists and information relating to the operations and business requirements of those\nclients/customers/bottlers and, accordingly, I am willing to enter into the covenants contained in this Agreement in order to provide the Company\nwith what I consider to be reasonable protection for its interests.\nI acknowledge that the restrictions, prohibitions and other provisions hereof, are reasonable, fair and equitable in scope, terms and\nduration, and are necessary to protect the legitimate business interests of the Company.\nSubject to my being released from the prohibition against my undertaking of Conditional Activities and Conditional Solicitations upon\nmy remittance of the Release Payment as contemplated hereunder, I acknowledge and agree that in the event I breach, or threaten in any way to\nbreach, or it is inevitable that I will breach, any of the provisions of this Agreement, damages shall be an inadequate remedy and the Company\nshall be entitled, without bond, to injunctive or other equitable relief in addition to all other rights otherwise available to the Company at law or\nin equity.\nIndemnification.\nNothing in this Agreement shall affect any rights I may have under Article VII of the Company’s by-laws in effect as of the date of this\nAgreement.\nNon-Disparagement.\nI agree that I will not make any statement, written or verbal, in any forum or media, or take any action in disparagement of the\nCompany, including but not limited to negative references to the Company or its products, services, corporate policies, or current or former\nofficers or employees, customers, suppliers, or business partners or associates. The Company agrees that neither it nor any of its executives or\nsenior management level employees will make any statement, written or verbal, in any forum or media, or take any action in disparagement of\nme, including but not limited to negative references to me or my levels of competency or aptitudes.\nComplete Agreement.\nThis Agreement together with the Separation Letter is the complete understanding between me and the Company in respect of the\nsubject matter of this Agreement and supersedes all prior agreements relating to the same subject matter. I have not relied upon any\nrepresentations, promises or agreements of any kind except those set forth herein and in the Separation Letter in signing this Agreement.\nSeverability.\nIn the event that any provision of this Agreement should be held to be invalid or unenforceable, each and all of the other provisions of\nthis Agreement shall remain in full force and effect. If any provision of this Agreement is found to be invalid or unenforceable, such provision\nshall be modified as necessary to permit this Agreement to be upheld and enforced to the maximum extent permitted by law.\nGoverning Law.\nExcept to the extent preempted by Federal Law, this Agreement is to be governed and enforced under the laws of the State of Georgia\n(except to the extent that Georgia conflicts of law rules would call for the application of the law of another jurisdiction) and any and all disputes\narising under this Agreement are to be resolved exclusively by courts sitting in Georgia. I hereby consent to the jurisdiction of such courts.\nSuccessors and Assigns.\nThis Agreement inures to the benefit of the Company and its successors and assigns and to the benefit of my heirs, executors,\nadministrators, to the extent not precluded by the Company’s benefit or compensation plans.\nAmendment/Waiver.\nNo amendment, modification or discharge of this Agreement shall be valid or binding unless set forth in writing and duly executed by\neach of the parties hereto.\nAcknowledgment.\nEach of the undersigned have carefully read this Agreement, fully understand each of its terms and conditions, and intend to abide by\nthis Agreement in every respect. As such, each of the undersigned individually or through its duly authorized officers knowingly and voluntarily\nsigns this Agreement under her or its respective hand and seal as her or its respective legally binding and enforceable obligation.\n/s/ Mary Minnick\nMary Minnick\nDate: February 28, 2007\nTHE COCA-COLA COMPANY\nBy: /s/ Geoffrey J. Kelly\nTitle: Vice President and General Counsel\nDate: February 28, 2007	EX-99.2 3 ko8k22807x99-2.htm FULL AND COMPLETE RELEASE AND AGREEMENT ON COMPETITION,\nTRADE SECRETS AND CONFIDENTIALITY\nEXHIBIT 99.2\nFULL AND COMPLETE RELEASE\nAND AGREEMENT ON COMPETITION,\nTRADE SECRETS AND CONFIDENTIALITY\nExecutive Release.\nI, Mary Minnick, in consideration of severance benefit payments under The Coca-Cola Company Severance Pay Plan (the "Company\nSeverance Plan"), the payments and benefits described in the attached letter dated February 28, 2007 (the "Separation Letter"), and other good\nand valuable consideration, for myself and my heirs, executors, administrators and assigns, do hereby knowingly and voluntarily release and\nforever discharge The Coca-Cola Company and its subsidiaries, affiliates, joint ventures, joint venture partners, and benefit plans (collectively\nthe "Company"), and their respective current and former directors, officers, administrators, trustees, employees, agents, and other representatives,\nfrom all debts, claims, actions, causes of action (including without limitation those under the Fair Labor Standards Act of 1938, as amended,\n29 U.S.C. S 201 et see; the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. 8 1001 et see; the Worker Adjustment\nand Retraining Notification Act of 1988, 29 U.S.C. S 2101 et see; and those federal, state, local, and foreign laws prohibiting employment\ndiscrimination based on age, sex, race, color, national origin, religion, disability, veteran or marital status, sexual orientation, or any other\nprotected trait or characteristic, or retaliation for engaging in any protected activity, including without limitation the Age Discrimination in\nEmployment Act of 1967, 29 U.S.C. 8 621 et seq. as amended by the Older Workers Benefit Protection Act, P.L. 101-433; the Equa Pay Act of\n1963,\n9\nU.S.C.S 206, et see; Title VII of The Civil Rights Act of 1964, as amended, 42 U.S.C. 8 2000e et see; the Civil Rights Act of 1866,\n42 U.S.C. 8 1981; the Civil Rights Act of 1991, 42 U.S.C. 8 1981a; the Americans with Disabilities Act, 42 U.S.C. 8 12101 et seqe; the\nRehabilitation Act of 1973, 29 U.S.C. 8 791 et sege; the Family and Medical Leave Act of 1993, 28 U.S.C. 88 2601 and 2611 et seq.; and\ncomparable state, local, and foreign causes of action, whether statutory or common law), suits, dues, sums of money, accounts, reckonings,\ncovenants, contracts, claims for costs or attorneys' fees, controversies, agreements, promises, and all liabilities of any kind or nature whatsoever,\nat\nlaw, in equity, or otherwise, KNOWN OR UNKNOWN, fixed or contingent, which I ever had, now have, or may have, or which I, my heirs,\nexecutors,\nadministrators\nor\nassigns\nhereafter\ncan,\nshall,\nor\nmay\nhave,\nfrom\nthe\nbeginning\nof\ntime\nthrough\nand\nincluding\nFebruary\n28,\n2007\n(the\n"Effective Date"), including without limitation those arising out of or related to my employment or separation from employment with the\nCompany. This Full and Complete Release and Agreement on Competition, Trade Secrets and Confidentiality is sometimes herein referred to as\nthe "Agreement."\nNotwithstanding the foregoing, it is understood and agreed that I do not hereby waive, but rather I have retained and shall continue to\nhave all rights and entitlements to receive and the Company shall remain obligated to fully perform and pay (or cause to be performed or paid)\n(i) all amounts or payments owed to me as contemplated under the Separation Letter, (ii) all of my rights to seek and receive indemnification\nfrom the Company for and with respect to all acts, errors or omissions committed by me in my capacity as a shareholder, director, officer,\nemployee, fiduciary, agent or representative of the Company all in the manner provided under the Company's by-laws (as hereinafter\ncontemplated) and applicable law, and (iii) all of my accrued and vested benefits (including pension or deferred compensation benefits) as\ndetermined through and including the Effective Date under the Company's applicable and governing plans and programs including without\nlimitation all rights received or attributable to any coverage extended me under any insurance policies maintained with or through third parties.\nI fully understand and agree that:\n1.\nthis Agreement is in exchange for severance benefits under the Company Severance Plan, the payments and benefits\ndescribed in the Separation Letter, and other special compensation to which I would otherwise not be entitled;\n2.\nI am hereby advised to consult with an attorney before signing this Agreement;\n3.\nI have 21 days from my receipt of this Agreement within which to consider whether to sign it;\n4.\nI have seven days following my signature of this Agreement to revoke the Agreement; and\n5.\nthis Agreement shall not become effective or enforceable until the revocation period of seven days has expired.\nIf I choose to revoke this Agreement, I must do so by notifying the Company in writing.\nIf there is any claim for loss of consortium, or any other similar claim, arising out of or related to my employment or separation of\nemployment with the Company, I will indemnify and hold the Company harmless from any liability, including costs and expenses (as well\nas\nreasonable attorneys' fees) incurred by the Company as a result of any such claim.\nI additionally understand and agree that this Agreement is not and shall not be construed to be an admission of liability of any kind\non\nthe part of the Company or any of the other persons or entities hereby released.\nCompany Release.\nFor and in consideration of my release of the Company under the preceding provisions and my undertaking of all covenants and\nagreements provided under this Agreement and other good and valuable consideration, the Company (as defined herein) does hereby knowingly\nand\nvoluntarily\nrelease\nand\nforever\ndischarge\nme\nand\nmy\nheirs,\nexecutors,\nadministrators\nand\nassigns\n(collectively\nthe\n"Executive\nReleased\nParties"), from all debts, claims, actions, causes of action, suits, dues, sums of money, accounts, reckonings, covenants, contracts, claims for\ncosts or attorneys' fees, controversies, agreements, promises, and all liabilities of any kind or nature whatsoever, at law, in equity, or otherwise,\nKNOWN OR UNKNOWN, fixed or contingent, which the Company ever had, now have, or may have, or which the Company hereafter can,\nshall, or may have, from the beginning of time through and including the Effective Date, including without limitation those arising out of or\nrelated to my employment or my separation from employment with the Company.\nNotwithstanding the foregoing, it is understood and agreed that the Company does not hereby waive, but rather the Company shall have\nretained and continue to have all rights and entitlements to enforce all of its rights and my obligations as against me as provided or contemplated\nunder and in accordance with the terms of this Agreement or the Separation Letter.\nIt is further understood and agreed that this Agreement is not and shall not be construed to be an admission of liability of any kind on\nthe part of any one or more of the Executive Released Parties.\nFuture Cooperation.\nI covenant and agree that I shall, to the extent reasonably requested in writing, fully cooperate with the Company in any investigation\nand/or threatened or pending litigation (now or in the future) in which the Company is a party or by which the Company is directly affected, and\nregarding matters which I, by virtue of my employment with the Company, have knowledge or information relevant to said litigation, including,\nbut not limited to (i) meeting with representatives of the Company to prepare for testimony and to provide truthful information regarding my\nknowledge, and (ii) providing, in any jurisdiction in which the Company requests, truthful testimony relevant to said litigation; provided that in\nall events the Company shall (a) reimburse me for actual and reasonable expenses incurred in connection with such cooperation including all\ntravel, lodging and accommodations, (b) remain and be exclusively responsible for all costs incurred in undertaking such litigation including all\nattorneys' fees, court costs, and other expenses consistent with the Company's by-laws, and (c) notify me as promptly as possible as to its need\nfor my assistance and cooperate with me in scheduling my participation so as to reasonably accommodate my other personal and professiona\nobligations and commitments.\nTrade Secrets and Confidential Information.\nI covenant and agree that I have held and shall continue to hold in confidence all Trade Secrets of the Company that came into my\nknowledge during my employment by the Company and shall not disclose, publish or make use of at any time such Trade Secrets for as long as\nthe information remains a Trade Secret. "Trade Secret" means any technical or non-technical data, formula, pattern, compilation, program,\ndevice, method, technique, drawing, process, financial data, financial plan, product plan, list of actual or potential customers or suppliers or other\ninformation similar to any of the foregoing, which (i) derives economic value, actual or potential, from not being generally known to and not\nbeing readily ascertainable by proper means by, other persons who can derive economic value from its disclosure or use, and (ii) is the subject of\nefforts that are reasonable under the circumstances to maintain its secrecy.\nI also covenant and agree that, for the period beginning on the date I sign this Agreement and ending on February 28, 2009 (the\n"Nondisclosure Period"), I will hold in confidence all Confidential Information of the Company that came into my knowledge during my\nemployment by the Company and will not disclose, publish or make use of such Confidential Information. "Confidential Information" means any\ndata or information, other than Trade Secrets, that is valuable to the Company and not generally known to the public or to competitors of the\nCompany but shall not include either (i) any information which is available from any public source other than by means of my disclosure of such\ninformation to such source, or (ii) any information generated by me in the course of my employment which consists of contact information\nrelated to my personal or professional affiliations consisting solely of names, addresses, phone numbers and e-mail addresses.\n2\nThe restrictions stated in this Agreement are in addition to and not in lieu of protections afforded to trade secrets and confidential\ninformation under applicable state law. Nothing in this Agreement is intended to or shall be interpreted as diminishing or otherwise limiting the\nCompany's right under applicable state law. Notwithstanding the foregoing, nothing contained herein shall prevent me from disclosing or\notherwise utilizing any information (i) in any manner required by applicable law, judicial order or other governmental mandate or investigation\nprovided I shall advise the Company of any such intended disposition or use and reasonably cooperate with the Company in allowing the\nCompany to seek and obtain from the recipient governmental or judicial body any protective order or assurance of confidentiality regarding such\ninformation or (ii) in fulfillment of my duties or obligations owed to the Company.\nReturn of Materials.\nI further covenant and agree that I have or shall promptly deliver to the Company all memoranda, notes, records, manuals or other\ndocuments, including all copies of such materials and all documentation prepared or produced in connection therewith, containing Trade Secrets\nor Confidential Information regarding the Company's business, whether made or compiled by me or furnished to me by virtue of my employment\nwith the Company. I shall promptly deliver to the Company all vehicles, computers, credit cards, telephones, handheld electronic devices, office\nequipment, and other property furnished to me by virtue of my employment with the Company.\nNo Publicity..\nExcept as otherwise authorized or agreed to by the Chief Executive Officer of the Company (the "CEO"), during the Nondisclosure\nPeriod, I will not publish any opinion, fact, or material, deliver any lecture or address, participate in the making of any film, radio broadcast or\ntelevision transmission, or communicate with any representative of the media relating to confidential matters regarding the business or affairs of\nthe\nCompany\nwhich\nI\nwas\ninvolved\nwith\nduring\nmy\nemployment;\nprovided,\nthat\nnothing\ncontained\nherein\nshall\nprevent\nme\nfrom\nundertaking\nany\nmay such include activities ancillary otherwise and prohibited historical hereunder recitations with of my respect past to experiences presentations with focusing the Company on me and and which my personal do not experience otherwise involve or knowledge disclosure which of\nmatters or materials which have not been previously or otherwise publicly released.\nNon Compete and Non Solicitation.\nDefinitions.\nFor the purposes of this Section, in addition to all other terms defined under this Agreement, the following definitions apply:\n(a)\n"Non Solicitation Period" means the period beginning on the date I sign this Agreement and ending on February\n28,\n2009.\n(b)\n"Restricted Activities" means the development or oversight of marketing, innovation, operation or financial\nactivities or strategies for Restricted Businesses.\n(c)\n"Territory" means any location in which the Company conducts business.\n(d)\n"Restricted Businesses" means 1) companies whose primary business is the manufacture, sale, distribution and\nmarketing of carbonated soft drinks, coffee, tea, milk, water, juices or fruit-based beverages ("Non-alcoholic Beverages") and 2) companies a\nsubstantial portion of whose business activities includes the manufacture, sale, distribution and marketing of Non-alcoholic Beverages, but for\nwhom such business(es) may not be the company's primary business ("Non-Beverage Companies").\n(e)\n"Competing Business Segment" means any subsidiary, division or unit of the business of a company, other than a\nProhibited Company, where such subsidiary, division or unit manufactures, sells, distributes or markets Non-alcoholic Beverages.\n(f)\n"Prohibited Companies" shall mean each of (i) PepsiCo, Inc. or its subsidiaries or affiliates including members of the\nPepsi Bottling Group, (ii) Groupe Danone, (iii) Nestle S.A., (iv) Cadbury Schweppes, plc, and (v) Cott Corporation, all of which aforenamed\ncompanies engage in the Restricted Business.\n(g)\n"Release Payment" shall mean an amount equal to the difference between (i) the total base salary paid to me under\nthe Company Severance Plan, whether in a lump sum or in a series of payments, for any period commencing or occurring from and after March\n1, 2007 (such amount being anticipated as totaling $1,261,260) less (ii) any amounts charged or withheld from those payments (including all\nunemployment, FICA or similar non income taxes) described under subclause (i) hereof other than local, state or federal income taxes paid and\ncredited to me or any other deductions therefrom applied in satisfaction of obligations owed or benefits received by me.\n3\nNon Compete.\nI hereby covenant with the Company that I will not, within the Territory prior to February 28, 2009, without the prior written\nconsent of the CEO, engage in any Restricted Activities for or on behalf of (including in a consulting capacity) any one or more of the Prohibited\nCompanies (those activities in which I am so prohibited from engaging under this sentence being herein referred to as the "Absolute Activities").\nSubject to the exceptions and conditions hereinafter specified, I hereby further covenant with the Company that I will not, within the Territory\nprior to February 28, 2008, without the prior written consent of the CEO, engage in any Restricted Activities for or on behalf of (including in a\nconsulting capacity) any Restricted Business other than the Prohibited Companies (those activities from which I am prohibited from engaging\nunder this sentence being herein referred to as the "Conditional Activities"). Notwithstanding the foregoing, in all events it is agreed that I shall\nnot\nbe\nprohibited\nhereunder\nand\nshall\nremain\nentitled\nto\nperform\neither\n(i)\nservices\nfor\nNon-Beverage\nCompanies\n(other\nthan\nthe\nProhibited\nCompanies) that have a Competing Business Segment, provided I do not perform services for such Competing Business Segment, and provided\nfurther that I notify the CEO of the nature of any such services being rendered to any Non-Beverage Companies in writing within a reasonable\ntime prior to beginning performance of such services, (ii) services for any companies or other entities which do not engage in the Restricted\nBusiness within the Territory, (iii) Absolute Activities from and after March 1, 2009, or (iv) Conditional Activities from and after March 1,\n2008.\nNon Solicitation of Employees.\nI hereby covenant and agree that I will not, within the Territory and during the Non Solicitation Period, without the prior\nwritten consent of the CEO, solicit or attempt to solicit for employment for or on behalf of any corporation, partnership, venture or other business\nentity\nany\nperson\nwho,\non\nthe\nlast\nday\nof\nmy\nemployment\nwith\nthe\nCompany\nor\nwithin\nsix\nmonths\nprior\nto\nthat\ndate,\nwas\nemployed\nby\nthe\nCompany as a manager or executive and with whom I had professional interaction during the last twelve months of my employment with the\nCompany (whether or not such person would commit a breach of contract).\nNon Solicitation of Customers.\nI hereby covenant and agree that I will not, within the Territory and during the Non Solicitation Period, without the prior\nwritten consent of the CEO, solicit or attempt to solicit, directly or indirectly, any business comprising or related to the manufacture, sale,\ndistribution and marketing of Non-alcoholic Beverages for any Prohibited Company from any of the Company's customers, including actively\nsought prospective customers, with whom I had professional interaction during my employment with the Company (those activities from which I\nam prohibited from engaging under this sentence being herein referred to as the "Absolute Solicitations"). Subject to the exceptions and\nconditions hereinafter specified, I hereby further covenant and agree that I will not, within the Territory, on or prior to February 28, 2008, without\nthe prior written consent of the CEO, solicit or attempt to solicit, directly or indirectly, any business comprising or related to the manufacture,\nsale, distribution and marketing of Non-alcoholic Beverages for any Competing Business Segment of the Restricted Businesses from any of the\nCompany's customers, including actively sought prospective customers, with whom I had professional interaction during my employment with\nthe Company (those activities from which I am prohibited from engaging under this sentence being herein referred to as the "Conditional\nSolicitations"). Notwithstanding the foregoing, in all events it is agreed that I shall not be prohibited hereunder and shall remain entitled\nto\nundertake either (i) solicitations for any companies or other entities which do not engage in the Restricted Business within the Territory, (ii)\nAbsolute Solicitations from and after March 1, 2009, or (iii) Conditional Solicitations from and after March 1, 2008.\n4\nRelease.\nNotwithstanding the foregoing, it is agreed that in the event I shall desire to engage in any Conditional Activities and/or Conditional\nSolicitations otherwise prohibited hereunder prior to March 1, 2008, then prior to my commencing performance of such Conditional Activities\nand/or Conditional Solicitations, I shall notify the CEO of such intention seeking the Company's consent to my undertaking of same which\nconsent the CEO shall cause the Company to consider in good faith and within its reasonable discretion. Upon receipt of such request,\nthe\nCEO\nshall promptly, but in all events within ten business days, notify me in writing of the Company's granting of its consent to my undertaking of\nsuch Conditional Activities and/or Conditional Solicitations or the Company's decision to refuse its granting of such consent. In the event the\nCompany\nrefuses\nto\nconsent\nto\nmy\nundertaking\nof\nany\nsuch\nConditional\nActivities\nand/or\nConditional\nSolicitations\nhereunder,\nI\nmay,\nat\nmy\nsole\nelection and upon paying to the Company the Release Payment, be entitled to fully undertake any Conditiona Activities and/or Conditional\nSolicitations without same being subject to any further restriction or prohibition hereunder, except as otherwise limited by applicable law. Upon\nmy\nremittance\nof\nthe\nRelease\nPayment\nto\nthe\nCompany\nhereunder,\nthe\nCompany\nshall\naccept\nsame\nas\nfull,\ncomplete\nand\nexclusive\nliquidated\ndamages and shall have no rights or entitlements to enforce or seek enforcement of my covenant and agreement not to engage in any Conditional\nActivities or Conditional Solicitations hereunder and shall not have and hereby waive, release and relinquish any and all claims, assertion\nor\ndamages the Company may have by reason or in connection with my undertaking of any Conditional Activities and/or Conditional Solicitations.\nNotwithstanding the foregoing, it is understood and agreed that the Company does not hereby waive, but rather the Company shall have retained\nthe right to enforce all other provisions of this Agreement, including but not limited to my agreement not to engage in any Absolute Activities or\nAbsolute Solicitations hereunder and my obligations not to disclose Trade Secrets and Confidential Information and that my release from the\nprohibition against my undertaking of any Conditional Activities and Conditional Solicitations hereunder shall not relieve me from my covenant\nand agreement not to engage in any Absolute Activities or Absolute Solicitations hereunder or my obligations not to disclose Trade Secrets\nor\nConfidential Information pursuant to this Agreement or applicable law.\nReasonable and Necessary. Restrictions.\nI acknowledge that during the course of my employment with the Company I have received or will receive and had or will have access\nto Confidential Information and Trade Secrets of the Company, including but not limited to confidential and secret business and marketing plans,\nstrategies, and studies, detailed client/customer/bottler lists and information relating to the operations and business requirements of those\nclients/customers/bottlers and, accordingly, I am willing to enter into the covenants contained in this Agreement in order to provide the Company\nwith what I consider to be reasonable protection for its interests.\nI acknowledge that the restrictions, prohibitions and other provisions hereof, are reasonable, fair and equitable in scope, terms and\nduration, and are necessary to protect the legitimate business interests of the Company.\nSubject to my being released from the prohibition against my undertaking of Conditional Activities and Conditional Solicitations\nupon\nmy\nremittance of the Release Payment as contemplated hereunder, I acknowledge and agree that in the event I breach, or threaten in any way to\nbreach, or it is inevitable that I will breach, any of the provisions of this Agreement, damages shall be an inadequate remedy and the Company\nshall be entitled, without bond, to injunctive or other equitable relief in addition to all other rights otherwise available to the Company at law\nor\nin equity.\nIndemnification.\nNothing in this Agreement shall affect any rights I may have under Article VII of the Company's by-laws in effect as of the date of this\nAgreement.\n5\nNon-Disparagement.\nI agree that I will not make any statement, written or verbal, in any forum or media, or take any action in disparagement of the\nCompany, including but not limited to negative references to the Company or its products, services, corporate policies, or current or former\nofficers or employees, customers, suppliers, or business partners or associates. The Company agrees that neither it nor any of its executives or\nsenior management level employees will make any statement, written or verbal, in any forum or media, or take any action in disparagement of\nme, including but not limited to negative references to me or my levels of competency or aptitudes.\nComplete Agreement.\nThis Agreement together with the Separation Letter is the complete understanding between me and the Company in respect of the\nsubject matter of this Agreement and supersedes all prior agreements relating to the same subject matter. I have not relied upon any\nrepresentations, promises or agreements of any kind except those set forth herein and in the Separation Letter in signing this Agreement.\nSeverability.\nIn the event that any provision of this Agreement should be held to be invalid or unenforceable, each and all of the other provisions of\nthis Agreement shall remain in full force and effect. If any provision of this Agreement is found to be invalid or unenforceable, such provision\nshall be modified as necessary to permit this Agreement to be upheld and enforced to the maximum extent permitted by law.\nGoverning Law.\nExcept to the extent preempted by Federal Law, this Agreement is to be governed and enforced under the laws of the State of Georgia\n(except to the extent that Georgia conflicts of law rules would call for the application of the law of another jurisdiction) and any and all disputes\narising under this Agreement are to be resolved exclusively by courts sitting in Georgia. I hereby consent to the jurisdiction of such courts.\nSuccessors and Assigns.\nThis Agreement inures to the benefit of the Company and its successors and assigns and to the benefit of my heirs, executors,\nadministrators, to the extent not precluded by the Company's benefit or compensation plans.\nAmendment/Waiver.\nNo amendment, modification or discharge of this Agreement shall be valid or binding unless set forth in writing and duly executed by\neach of the parties hereto.\nAcknowledgment.\nEach of the undersigned have carefully read this Agreement, fully understand each of its terms and conditions, and intend to abide by\nthis Agreement in every respect. As such, each of the undersigned individually or through its duly authorized officers knowingly and voluntarily\nsigns this Agreement under her or its respective hand and seal as her or its respective legally binding and enforceable obligation.\n/s/ Mary Minnick\nMary Minnick\nDate: February 28, 2007\nTHE COCA-COLA COMPANY\nBy: /s/ Geoffrey J. Kelly\nTitle: Vice President and General Counsel\nDate: February 28, 2007	EX-99.2 3 ko8k22807x99-2.htm FULL AND COMPLETE RELEASE AND AGREEMENT ON COMPETITION,\nTRADE SECRETS AND CONFIDENTIALITY\nEXHIBIT 99.2\nFULL AND COMPLETE RELEASE\nAND AGREEMENT ON COMPETITION,\nTRADE SECRETS AND CONFIDENTIALITY\nExecutive Release.\nI, Mary Minnick, in consideration of severance benefit payments under The Coca-Cola Company Severance Pay Plan (the “Company\nSeverance Plan”), the payments and benefits described in the attached letter dated February 28, 2007 (the “Separation Letter”), and other good\nand valuable consideration, for myself and my heirs, executors, administrators and assigns, do hereby knowingly and voluntarily release and\nforever discharge The Coca-Cola Company and its subsidiaries, affiliates, joint ventures, joint venture partners, and benefit plans (collectively\nthe “Company"), and their respective current and former directors, officers, administrators, trustees, employees, agents, and other representatives,\nfrom all debts, claims, actions, causes of action (including without limitation those under the Fair Labor Standards Act of 1938, as amended,\n29 U.S.C . § 201 et seq.; the Employee Retirement Income Security Act of 1974, as amended, 29 U.S .C . § 1001 et seq.; the Worker Adjustment\nand Retraining Notification Act of 1988, 29 U.S.C . § 2101 et seq.; and those federal, state, local, and foreign laws prohibiting employment\ndiscrimination based on age, sex, race, color, national origin, religion, disability, veteran or marital status, sexual orientation, or any other\nprotected trait or characteristic, or retaliation for engaging in any protected activity, including without limitation the Age Discrimination in\nEmployment Act of 1967, 29 U.S.C . § 621 et seq., as amended by the Older Workers Benefit Protection Act, P.L . 101 -433; the Equal Pay Act of\n1963, 9 U.S.C .§ 206, et seq.; Title VII of The Civil Rights Act of 1964, as amended, 42 U.S.C . § 2000e et seq.; the Civil Rights Act of 1866,\n42 U.S.C . § 1981; the Civil Rights Act of 1991, 42 U.S .C . § 1981a; the Americans with Disabilities Act, 42 U.S.C . § 12101 et seq.; the\nRehabilitation Act of 1973, 29 U.S.C . § 791 et seq.; the Family and Medical Leave Act of 1993, 28 U.S .C . §§ 2601 and 2611 et seq.; and\ncomparable state, local, and foreign causes of action, whether statutory or common law), suits, dues, sums of money, accounts, reckonings,\ncovenants, contracts, claims for costs or attorneys' fees, controversies, agreements, promises, and all liabilities of any kind or nature whatsoever,\nat law, in equity, or otherwise, KNOWN OR UNKNOWN, fixed or contingent, which I ever had, now have, or may have, or which I, my heirs,\nexecutors, administrators or assigns hereafter can, shall, or may have, from the beginning of time through and including February 28, 2007 (the\n“Effective Date”), including without limitation those arising out of or related to my employment or separation from employment with the\nCompany. This Full and Complete Release and Agreement on Competition, Trade Secrets and Confidentiality is sometimes herein referred to as\nthe “Agreement.”\nNotwithstanding the foregoing, it is understood and agreed that I do not hereby waive, but rather I have retained and shall continue to\nhave all rights and entitlements to receive and the Company shall remain obligated to fully perform and pay (or cause to be performed or paid)\n(i) all amounts or payments owed to me as contemplated under the Separation Letter, (ii) all of my rights to seek and receive indemnification\nfrom the Company for and with respect to all acts, errors or omissions committed by me in my capacity as a shareholder, director, officer,\nemployee, fiduciary, agent or representative of the Company all in the manner provided under the Company’s by-laws (as hereinafter\ncontemplated) and applicable law, and (iii) all of my accrued and vested benefits (including pension or deferred compensation benefits) as\ndetermined through and including the Effective Date under the Company’s applicable and governing plans and programs including without\nlimitation all rights received or attributable to any coverage extended me under any insurance policies maintained with or through third parties.\nI fully understand and agree that:\n1.\nthis Agreement is in exchange for severance benefits under the Company Severance Plan, the payments and benefits\ndescribed in the Separation Letter, and other special compensation to which I would otherwise not be entitled;\n2.\nI am hereby advised to consult with an attorney before signing this Agreement;\n3.\nI have 21 days from my receipt of this Agreement within which to consider whether to sign it;\n4.\nI have seven days following my signature of this Agreement to revoke the Agreement; and\n5.\nthis Agreement shall not become effective or enforceable until the revocation period of seven days has expired.\nIf I choose to revoke this Agreement, I must do so by notifying the Company in writing.\nIf there is any claim for loss of consortium, or any other similar claim, arising out of or related to my employment or separation of\nemployment with the Company, I will indemnify and hold the Company harmless from any liability, including costs and expenses (as well as\nreasonable attorneys' fees) incurred by the Company as a result of any such claim.\nI additionally understand and agree that this Agreement is not and shall not be construed to be an admission of liability of any kind on\nthe part of the Company or any of the other persons or entities hereby released.\nCompany Release.\nFor and in consideration of my release of the Company under the preceding provisions and my undertaking of all covenants and\nagreements provided under this Agreement and other good and valuable consideration, the Company (as defined herein) does hereby knowingly\nand voluntarily release and forever discharge me and my heirs, executors, administrators and assigns (collectively the “Executive Released\nParties"), from all debts, claims, actions, causes of action, suits, dues, sums of money, accounts, reckonings, covenants, contracts, claims for\ncosts or attorneys' fees, controversies, agreements, promises, and all liabilities of any kind or nature whatsoever, at law, in equity, or otherwise,\nKNOWN OR UNKNOWN, fixed or contingent, which the Company ever had, now have, or may have, or which the Company hereafter can,\nshall, or may have, from the beginning of time through and including the Effective Date, including without limitation those arising out of or\nrelated to my employment or my separation from employment with the Company.\nNotwithstanding the foregoing, it is understood and agreed that the Company does not hereby waive, but rather the Company shall have\nretained and continue to have all rights and entitlements to enforce all of its rights and my obligations as against me as provided or contemplated\nunder and in accordance with the terms of this Agreement or the Separation Letter.\nIt is further understood and agreed that this Agreement is not and shall not be construed to be an admission of liability of any kind on\nthe part of any one or more of the Executive Released Parties.\nFuture Cooperation.\nI covenant and agree that I shall, to the extent reasonably requested in writing, fully cooperate with the Company in any investigation\nand/or threatened or pending litigation (now or in the future) in which the Company is a party or by which the Company is directly affected, and\nregarding matters which I, by virtue of my employment with the Company, have knowledge or information relevant to said litigation, including,\nbut not limited to (i) meeting with representatives of the Company to prepare for testimony and to provide truthful information regarding my\nknowledge, and (ii) providing, in any jurisdiction in which the Company requests, truthful testimony relevant to said litigation; provided that in\nall events the Company shall (a) reimburse me for actual and reasonable expenses incurred in connection with such cooperation including all\ntravel, lodging and accommodations, (b) remain and be exclusively responsible for all costs incurred in undertaking such litigation including all\nattorneys’ fees, court costs, and other expenses consistent with the Company’s by-laws, and (c) notify me as promptly as possible as to its need\nfor my assistance and cooperate with me in scheduling my participation so as to reasonably accommodate my other personal and professional\nobligations and commitments.\nTrade Secrets and Confidential Information.\nI covenant and agree that I have held and shall continue to hold in confidence all Trade Secrets of the Company that came into my\nknowledge during my employment by the Company and shall not disclose, publish or make use of at any time such Trade Secrets for as long as\nthe information remains a Trade Secret. "Trade Secret" means any technical or non-technical data, formula, pattern, compilation, program,\ndevice, method, technique, drawing, process, financial data, financial plan, product plan, list of actual or potential customers or suppliers or other\ninformation similar to any of the foregoing, which (i) derives economic value, actual or potential, from not being generally known to and not\nbeing readily ascertainable by proper means by, other persons who can derive economic value from its disclosure or use, and (ii) is the subject of\nefforts that are reasonable under the circumstances to maintain its secrecy.\nI also covenant and agree that, for the period beginning on the date I sign this Agreement and ending on February 28, 2009 (the\n“Nondisclosure Period”), I will hold in confidence all Confidential Information of the Company that came into my knowledge during my\nemployment by the Company and will not disclose, publish or make use of such Confidential Information. "Confidential Information" means any\ndata or information, other than Trade Secrets, that is valuable to the Company and not generally known to the public or to competitors of the\nCompany but shall not include either (i) any information which is available from any public source other than by means of my disclosure of such\ninformation to such source, or (ii) any information generated by me in the course of my employment which consists of contact information\nrelated to my personal or professional affiliations consisting solely of names, addresses, phone numbers and e-mail addresses.\n2\nThe restrictions stated in this Agreement are in addition to and not in lieu of protections afforded to trade secrets and confidential\ninformation under applicable state law. Nothing in this Agreement is intended to or shall be interpreted as diminishing or otherwise limiting the\nCompany’s right under applicable state law. Notwithstanding the foregoing, nothing contained herein shall prevent me from disclosing or\notherwise utilizing any information (i) in any manner required by applicable law, judicial order or other governmental mandate or investigation\nprovided I shall advise the Company of any such intended disposition or use and reasonably cooperate with the Company in allowing the\nCompany to seek and obtain from the recipient governmental or judicial body any protective order or assurance of confidentiality regarding such\ninformation or (ii) in fulfillment of my duties or obligations owed to the Company.\nReturn of Materials.\nI further covenant and agree that I have or shall promptly deliver to the Company all memoranda, notes, records, manuals or other\ndocuments, including all copies of such materials and all documentation prepared or produced in connection therewith, containing Trade Secrets\nor Confidential Information regarding the Company's business, whether made or compiled by me or furnished to me by virtue of my employment\nwith the Company. I shall promptly deliver to the Company all vehicles, computers, credit cards, telephones, handheld electronic devices, office\nequipment, and other property furnished to me by virtue of my employment with the Company.\nNo Publicity.\nExcept as otherwise authorized or agreed to by the Chief Executive Officer of the Company (the “CEO”), during the Nondisclosure\nPeriod, I will not publish any opinion, fact, or material, deliver any lecture or address, participate in the making of any film, radio broadcast or\ntelevision transmission, or communicate with any representative of the media relating to confidential matters regarding the business or affairs of\nthe Company which I was involved with during my employment; provided, that nothing contained herein shall prevent me from undertaking any\nsuch activities otherwise prohibited hereunder with respect to presentations focusing on me and my personal experience or knowledge which\nmay include ancillary and historical recitations of my past experiences with the Company and which do not otherwise involve disclosure of\nmatters or materials which have not been previously or otherwise publicly released.\nNon Compete and Non Solicitation.\nDefinitions.\nFor the purposes of this Section, in addition to all other terms defined under this Agreement, the following definitions apply:\n(a)\n"Non Solicitation Period" means the period beginning on the date I sign this Agreement and ending on February 28,\n2009.\n(b)\n“Restricted Activities” means the development or oversight of marketing, innovation, operation or financial\nactivities or strategies for Restricted Businesses.\n(c)\n"Territory" means any location in which the Company conducts business.\n(d)\n“Restricted Businesses” means 1) companies whose primary business is the manufacture, sale, distribution and\nmarketing of carbonated soft drinks, coffee, tea, milk, water, juices or fruit-based beverages (“Non-alcoholic Beverages”) and 2) companies a\nsubstantial portion of whose business activities includes the manufacture, sale, distribution and marketing of Non-alcoholic Beverages, but for\nwhom such business(es) may not be the company’s primary business (“Non-Beverage Companies”).\n(e)\n“Competing Business Segment” means any subsidiary, division or unit of the business of a company, other than a\nProhibited Company, where such subsidiary, division or unit manufactures, sells, distributes or markets Non-alcoholic Beverages.\n(f)\n“Prohibited Companies” shall mean each of (i) PepsiCo, Inc. or its subsidiaries or affiliates including members of the\nPepsi Bottling Group, (ii) Groupe Danone, (iii) Nestle S.A., (iv) Cadbury Schweppes, plc, and (v) Cott Corporation, all of which aforenamed\ncompanies engage in the Restricted Business.\n(g)\n“Release Payment” shall mean an amount equal to the difference between (i) the total base salary paid to me under\nthe Company Severance Plan, whether in a lump sum or in a series of payments, for any period commencing or occurring from and after March\n1, 2007 (such amount being anticipated as totaling $1,261,260) less (ii) any amounts charged or withheld from those payments (including all\nunemployment, FICA or similar non income taxes) described under subclause (i) hereof other than local, state or federal income taxes paid and\ncredited to me or any other deductions therefrom applied in satisfaction of obligations owed or benefits received by me.\n3\nNon Compete.\nI hereby covenant with the Company that I will not, within the Territory prior to February 28, 2009, without the prior written\nconsent of the CEO, engage in any Restricted Activities for or on behalf of (including in a consulting capacity) any one or more of the Prohibited\nCompanies (those activities in which I am so prohibited from engaging under this sentence being herein referred to as the “Absolute Activities”).\nSubject to the exceptions and conditions hereinafter specified, I hereby further covenant with the Company that I will not, within the Territory\nprior to February 28, 2008, without the prior written consent of the CEO, engage in any Restricted Activities for or on behalf of (including in a\nconsulting capacity) any Restricted Business other than the Prohibited Companies (those activities from which I am prohibited from engaging\nunder this sentence being herein referred to as the “Conditional Activities”). Notwithstanding the foregoing, in all events it is agreed that I shall\nnot be prohibited hereunder and shall remain entitled to perform either (i) services for Non-Beverage Companies (other than the Prohibited\nCompanies) that have a Competing Business Segment, provided I do not perform services for such Competing Business Segment, and provided\nfurther that I notify the CEO of the nature of any such services being rendered to any Non-Beverage Companies in writing within a reasonable\ntime prior to beginning performance of such services, (ii) services for any companies or other entities which do not engage in the Restricted\nBusiness within the Territory, (iii) Absolute Activities from and after March 1, 2009, or (iv) Conditional Activities from and after March 1,\n2008.\nNon Solicitation of Employees.\nI hereby covenant and agree that I will not, within the Territory and during the Non Solicitation Period, without the prior\nwritten consent of the CEO, solicit or attempt to solicit for employment for or on behalf of any corporation, partnership, venture or other business\nentity any person who, on the last day of my employment with the Company or within six months prior to that date, was employed by the\nCompany as a manager or executive and with whom I had professional interaction during the last twelve months of my employment with the\nCompany (whether or not such person would commit a breach of contract).\nNon Solicitation of Customers.\nI hereby covenant and agree that I will not, within the Territory and during the Non Solicitation Period, without the prior\nwritten consent of the CEO, solicit or attempt to solicit, directly or indirectly, any business comprising or related to the manufacture, sale,\ndistribution and marketing of Non-alcoholic Beverages for any Prohibited Company from any of the Company’s customers, including actively\nsought prospective customers, with whom I had professional interaction during my employment with the Company (those activities from which I\nam prohibited from engaging under this sentence being herein referred to as the “Absolute Solicitations”). Subject to the exceptions and\nconditions hereinafter specified, I hereby further covenant and agree that I will not, within the Territory, on or prior to February 28, 2008, without\nthe prior written consent of the CEO, solicit or attempt to solicit, directly or indirectly, any business comprising or related to the manufacture,\nsale, distribution and marketing of Non-alcoholic Beverages for any Competing Business Segment of the Restricted Businesses from any of the\nCompany’s customers, including actively sought prospective customers, with whom I had professional interaction during my employment with\nthe Company (those activities from which I am prohibited from engaging under this sentence being herein referred to as the “Conditional\nSolicitations”). Notwithstanding the foregoing, in all events it is agreed that I shall not be prohibited hereunder and shall remain entitled to\nundertake either (i) solicitations for any companies or other entities which do not engage in the Restricted Business within the Territory, (ii)\nAbsolute Solicitations from and after March 1, 2009, or (iii) Conditional Solicitations from and after March 1, 2008.\n4\nRelease.\nNotwithstanding the foregoing, it is agreed that in the event I shall desire to engage in any Conditional Activities and/or Conditional\nSolicitations otherwise prohibited hereunder prior to March 1, 2008, then prior to my commencing performance of such Conditional Activities\nand/or Conditional Solicitations, I shall notify the CEO of such intention seeking the Company’s consent to my undertaking of same which\nconsent the CEO shall cause the Company to consider in good faith and within its reasonable discretion. Upon receipt of such request, the CEO\nshall promptly, but in all events within ten business days, notify me in writing of the Company’s granting of its consent to my undertaking of\nsuch Conditional Activities and/or Conditional Solicitations or the Company’s decision to refuse its granting of such consent. In the event the\nCompany refuses to consent to my undertaking of any such Conditional Activities and/or Conditional Solicitations hereunder, I may, at my sole\nelection and upon paying to the Company the Release Payment, be entitled to fully undertake any Conditional Activities and/or Conditional\nSolicitations without same being subject to any further restriction or prohibition hereunder, except as otherwise limited by applicable law. Upon\nmy remittance of the Release Payment to the Company hereunder, the Company shall accept same as full, complete and exclusive liquidated\ndamages and shall have no rights or entitlements to enforce or seek enforcement of my covenant and agreement not to engage in any Conditional\nActivities or Conditional Solicitations hereunder and shall not have and hereby waive, release and relinquish any and all claims, assertion or\ndamages the Company may have by reason or in connection with my undertaking of any Conditional Activities and/or Conditional Solicitations.\nNotwithstanding the foregoing, it is understood and agreed that the Company does not hereby waive, but rather the Company shall have retained\nthe right to enforce all other provisions of this Agreement, including but not limited to my agreement not to engage in any Absolute Activities or\nAbsolute Solicitations hereunder and my obligations not to disclose Trade Secrets and Confidential Information and that my release from the\nprohibition against my undertaking of any Conditional Activities and Conditional Solicitations hereunder shall not relieve me from my covenant\nand agreement not to engage in any Absolute Activities or Absolute Solicitations hereunder or my obligations not to disclose Trade Secrets or\nConfidential Information pursuant to this Agreement or applicable law.\nReasonable and Necessary Restrictions.\nI acknowledge that during the course of my employment with the Company I have received or will receive and had or will have access\nto Confidential Information and Trade Secrets of the Company, including but not limited to confidential and secret business and marketing plans,\nstrategies, and studies, detailed client/customer/bottler lists and information relating to the operations and business requirements of those\nclients/customers/bottlers and, accordingly, I am willing to enter into the covenants contained in this Agreement in order to provide the Company\nwith what I consider to be reasonable protection for its interests.\nI acknowledge that the restrictions, prohibitions and other provisions hereof, are reasonable, fair and equitable in scope, terms and\nduration, and are necessary to protect the legitimate business interests of the Company.\nSubject to my being released from the prohibition against my undertaking of Conditional Activities and Conditional Solicitations upon\nmy remittance of the Release Payment as contemplated hereunder, I acknowledge and agree that in the event I breach, or threaten in any way to\nbreach, or it is inevitable that I will breach, any of the provisions of this Agreement, damages shall be an inadequate remedy and the Company\nshall be entitled, without bond, to injunctive or other equitable relief in addition to all other rights otherwise available to the Company at law or\nin equity.\nIndemnification.\nNothing in this Agreement shall affect any rights I may have under Article VII of the Company’s by-laws in effect as of the date of this\nAgreement.\n5\nNon-Disparagement.\nI agree that I will not make any statement, written or verbal, in any forum or media, or take any action in disparagement of the\nCompany, including but not limited to negative references to the Company or its products, services, corporate policies, or current or former\nofficers or employees, customers, suppliers, or business partners or associates. The Company agrees that neither it nor any of its executives or\nsenior management level employees will make any statement, written or verbal, in any forum or media, or take any action in disparagement of\nme, including but not limited to negative references to me or my levels of competency or aptitudes.\nComplete Agreement.\nThis Agreement together with the Separation Letter is the complete understanding between me and the Company in respect of the\nsubject matter of this Agreement and supersedes all prior agreements relating to the same subject matter. I have not relied upon any\nrepresentations, promises or agreements of any kind except those set forth herein and in the Separation Letter in signing this Agreement.\nSeverability.\nIn the event that any provision of this Agreement should be held to be invalid or unenforceable, each and all of the other provisions of\nthis Agreement shall remain in full force and effect. If any provision of this Agreement is found to be invalid or unenforceable, such provision\nshall be modified as necessary to permit this Agreement to be upheld and enforced to the maximum extent permitted by law.\nGoverning Law.\nExcept to the extent preempted by Federal Law, this Agreement is to be governed and enforced under the laws of the State of Georgia\n(except to the extent that Georgia conflicts of law rules would call for the application of the law of another jurisdiction) and any and all disputes\narising under this Agreement are to be resolved exclusively by courts sitting in Georgia. I hereby consent to the jurisdiction of such courts.\nSuccessors and Assigns.\nThis Agreement inures to the benefit of the Company and its successors and assigns and to the benefit of my heirs, executors,\nadministrators, to the extent not precluded by the Company’s benefit or compensation plans.\nAmendment/Waiver.\nNo amendment, modification or discharge of this Agreement shall be valid or binding unless set forth in writing and duly executed by\neach of the parties hereto.\nAcknowledgment.\nEach of the undersigned have carefully read this Agreement, fully understand each of its terms and conditions, and intend to abide by\nthis Agreement in every respect. As such, each of the undersigned individually or through its duly authorized officers knowingly and voluntarily\nsigns this Agreement under her or its respective hand and seal as her or its respective legally binding and enforceable obligation.\n/s/ Mary Minnick\nMary Minnick\nDate: February 28, 2007\nTHE COCA-COLA COMPANY\nBy: /s/ Geoffrey J. Kelly____________\nTitle: Vice President and General Counsel\nDate: February 28, 2007
+4fd432d8ce6796dabc17d3838d8539a2.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit (d)(3)\nMarch 16, 2010\nSomanetics Corporation\n1653 East Maple Road\nTroy, MI 48083\nLadies and Gentlemen:\nIn connection with our possible interest in a transaction involving the acquisition of Somanetics Corporation (the “Company”), you are furnishing us\nor our representatives with certain information which is either non-public, confidential or proprietary in nature. All information furnished to us or\nour representatives by the Company or any of its employees, representatives, agents or advisors (including attorneys, accountants and financial\nadvisors), shall be considered confidential and proprietary, and together with analyses, compilations, forecasts, studies or other documents prepared\nby us, our agents, advisors (including attorneys, accountants and financial advisors), representatives or employees which contain such information, is\nhereinafter referred to as the “Information”. In consideration of the Company furnishing us with the Information, we agree that:\n1. The Information will be kept confidential and shall not, without the prior written consent of the Company, be disclosed by us, or by our affiliates,\nagents, representatives, advisors or employees, in any manner whatsoever, in whole or in part, and shall not be used by us, our affiliates, agents,\nrepresentatives, advisors or employees, other than to determine whether we wish to enter into, or other than in connection with, the transaction\ndescribed above. Moreover, we agree to reveal the Information only to our affiliates, agents, representatives, advisors and employees who need to\nknow the Information for the purpose of evaluating, or otherwise in connection with, the transaction described above who are informed of the\nconfidential nature of the Information. We agree to be responsible for any breach of this Agreement by our affiliates, agents, representatives,\nadvisors and employees.\n2. Without the prior written consent of the other party, neither party nor its representatives shall disclose to any person either the fact that discussions\nor negotiations are taking place concerning the possible transaction referred to herein or any of the terms, conditions or other facts with respect to\nany such possible transaction including the status thereof, except as required by applicable law or exchange listing agreements, rules or policies.\n3. All copies of the Information, except for that portion of the Information which consists of analyses, compilations, forecasts, studies or other\ndocuments prepared by us, our agents, representatives, advisors or employees, will be returned to the Company promptly upon request or if we\ndecide not to proceed with an acquisition of the Company (and we will inform the Company promptly of any such decision). At the time of such\nreturn, we will destroy any such analyses, compilations, forecasts, studies or other documents prepared by us, our agents, representatives, advisors or\nemployees.\n1\n2\n4. The term Information shall not include such portions of the Information which (i) are or become generally available to the public other than as a\nresult of disclosure by us, our affiliates, agents, representatives, advisors or employees, or (ii) become available to us or to our affiliates, agents,\nrepresentatives, advisors or employees on a non-confidential basis from a source which was not then prohibited from disclosing such Information to\nus by a legal, contractual or fiduciary obligation to the Company, or (iii) which was in our possession, or in the possession of our affiliates, agents,\nrepresentatives, advisors or employees, or otherwise available to us, or to our affiliates, agents, representatives, advisors or employees, on a non-\nconfidential basis prior to its disclosure to us or one or more of our affiliates, agents, representatives, advisors or employees, or (iv) which is\nindependently acquired or developed by us without violating any obligations under this Agreement.\n5. The above undertakings of non-disclosure and confidentiality shall remain in force for a period of two (2) years from the date of this Agreement,\nexcept that there shall be no time limit, and such undertakings shall continue indefinitely, with respect to Information regarding algorithms relating\nto the Company’s past, present and proposed products, the calibration of those products, the source code and applications software related to those\nproducts, and the analog signal processing section of the pre-amp pcba relating to those products.\n6. In the event that we or anyone to whom we transmit the Information pursuant to this Agreement is requested or becomes legally compelled to\ndisclose any of the Information (whether by oral questions, interrogatories, requests for Information or documents, subpoena, Civil Investigative\nDemand or similar process or otherwise), we will provide the Company with prompt notice, to the extent practicable, so that the Company may seek\na protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. We will cooperate with the Company,\nat the Company’s expense, to obtain such protective order or other appropriate remedy. In the event that such protective order or other remedy is not\nobtained, the Company agrees that such disclosure may be made without liability hereunder. We will furnish only that portion of the Information\nwhich we are, in the opinion of our counsel or the counsel of our representative, legally required to disclose and will use reasonable efforts to obtain\nreliable assurance that confidential treatment will be accorded the Information.\n7. We agree that for a period of one year from the date of this Agreement, we and our affiliates will not solicit for employment any employee of the\nCompany with whom we or our affiliates had direct contact in connection with our consideration of a possible transaction hereunder.\nNotwithstanding the foregoing, this paragraph shall not preclude our right to make generalized searches for employees by use of advertisements in\nthe media (including, without limitation, trade media) or by engaging search firms, so long as such general searches are not specifically targeted at\nsuch Company employees, and we shall not be prohibited from, and shall not be required to obtain the Company’s consent prior to, offering to\nemploy or employing any person who (i) contacts us on his or her own initiative without any direct or indirect solicitation by us, (ii) responds to an\nadvertisement or other general solicitation for employment not directed at employees of the Company, (iii) began employment discussions with us\nprior to the date of this agreement or (iv) is no longer employed by the Company at the time we commence employment discussions with such\nperson.\n3\n8. None of the Company or any of its affiliates, agents, advisors or representatives (i) has made or makes any representation or warranty, expressed\nor implied, as to the accuracy or completeness of the Information or (ii) shall have any liability whatsoever to us or our affiliates, agents,\nrepresentatives, advisors or employees relating to or resulting from the use of the Information or any errors therein or omissions therefrom. The\nInformation may include certain statements, estimates and projections provided by the Company with regard to the anticipated future performance of\nthe Company. Such statements, estimates and projections reflect various assumptions made by the Company concerning anticipated results, which\nassumptions may or may not prove to be correct. No representations are made as to the accuracy of such assumptions, statements, estimates or\nprojections, including any budget(s). The only information that will have any legal effect will be specifically represented in a definitive purchase\nagreement; and in no event will such definitive purchase agreement contain any representation as to the projections.\n9. You understand that (i) the Company shall conduct the process for a possible transaction as it, in its sole discretion, shall determine (including,\nwithout limitation, negotiating with any prospective buyer and entering into definitive agreements without prior notice to us or any other person),\n(ii) any procedures relating to a potential transaction may be changed at any time without notice to you or any other person, (iii) the Company shall\nhave the right to reject or accept any potential buyer, proposal or offer, for any reason whatsoever, in its sole discretion, and (iv) neither we nor any\nof our affiliates, agents, advisors or representatives shall have any claims whatsoever against the Company or any of its respective directors, officers,\nshareholders, owners, affiliates or agents arising out of or relating to a potential transaction (other than those against the parties to a definitive\nagreement with you in accordance with the terms thereof). We agree that, subject to the terms of this Agreement, unless and until a definitive\npurchase agreement between the Company and us with regard to any transaction has been executed and delivered, neither the Company nor we will\nbe under any legal obligation of any kind whatsoever with respect to such transaction.\n10. In consideration of the Information being furnished to us, we hereby further agree that, without the prior written consent of the Board of\nDirectors of the Company, for a period of one year from the date hereof, neither we nor any of our affiliates (as such term is defined in Rule 12b-2\nunder the Securities Exchange Act of 1934, as amended), acting alone or as part of a group, will (i) acquire or offer or agree to acquire, directly or\nindirectly, by purchase or otherwise, any voting securities or securities convertible into voting securities of the Company, (ii) propose to enter into,\ndirectly or indirectly, any merger or business combination involving the Company or any of its subsidiaries, (iii) otherwise seek to influence or\ncontrol, in any manner whatsoever (including proxy solicitation or otherwise), the management or policies of the Company, (iv) assist, advise or\nencourage (including by knowingly providing or arranging financing for that purpose) any other person in doing any of the foregoing, (v) call,\nrequest or seek to have called any meeting of the shareholders of the Company or execute any written consent in lieu of a meeting of holders of any\nsecurities of the Company, (vi) otherwise act, to seek the removal of any member of the Board of Directors, seek to elect or place a representative on\nthe Board of Directors of the Company, or seek to control or influence the management, Board of Directors or policies of the Company, (vii) seek to\nhave the Company waive, amend or modify its governing documents (for example, its articles or bylaws), (viii) take any action which might force\nthe Company to make a public announcement regarding any of the types of matters\n4\nset forth above, (ix) make any request directly or indirectly, to amend or waive any provision of this section of this Agreement (including this\nsentence), (x) take any action that might require the Company to make a public announcement regarding the possibility of a business combination or\nother type of transaction or activity described in this section of this Agreement, or (xi) enter into any discussions or arrangements with any third\nparty with respect to any of the foregoing. The foregoing section shall not prevent us (alone or jointly with other sources of buyer financing) from\nmaking non-public proposals to the Company with respect to a possible transaction in compliance with written procedures provided to you by the\nCompany or its advisors. Notwithstanding the foregoing, in the event that the Board of Directors of the Company approves a transaction with any\nperson or entity that would result in such person or entity beneficially owning more than 20% of the outstanding voting securities of the Company\n(or a successor to the Company in a merger or consolidation transaction) or all or substantially all of the Company’s assets, or any person, entity or\n“group” (as defined in the 1934 Act), other than us or any of our affiliates, has commenced or publicly announced its intention to commence a tender\noffer for more than 20% of the outstanding voting securities of the Company, the provisions of this Section 10 shall terminate.\n11. It is further understood and agreed that Bruce Barrett, Mary Ann Victor or Bill Iacona will arrange for appropriate contacts with the Company. It\nis also understood and agreed that all (i) communications regarding a possible transaction, (ii) requests for additional information, (iii) requests for\nfacility tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed exclusively to Bruce\nBarrett, Mary Ann Victor or Bill Iacona, and that none of us or our affiliates, agents, advisors or representatives will initiate or cause to be initiated\nany communication with any director, officer, employee or vendor of the Company concerning the Information or a potential transaction.\n12. We understand and agree that the Company may be irreparably harmed by violation of this Agreement. Monetary damages alone may not be a\nsufficient remedy for any breach of this Agreement and, therefore, in addition to the Company’s other rights and remedies, the Company will be\nentitled to seek specific performance and injunctive or other equitable relief to enforce this Agreement. In addition, in the event of litigation\ninvolving this Agreement, the prevailing party will be entitled to attorneys’ fees and other costs incurred in connection with such litigation.\n13. The Company reserves the right to assign its rights, powers and privileges under this Agreement (including, without limitation, the right to\nenforce the terms of this Agreement) to any successor – in – interest to the Company by merger or sale of all or substantially all of the assets of the\nCompany.\n14. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent\nof such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity of enforceability of such\nprovisions in any other jurisdiction.\n5\n15. This Agreement shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts without regard to the\nprinciples of conflicts of law.\nVery truly yours,\nTYCO HEALTHCARE GROUP LP d/b/a COVIDIEN\nBy: /s/ Matthew J. Nicolella\nTitle:\nMatthew J. Nicolella\nVice President\nAccepted and agreed:\nSOMANETICS CORPORATION\nBy: /s/ Bruce J. Barrett\nTitle:\nBruce J. Barrett\nPresident and Chief Executive Officer	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit (d)(3)\nMarch 16, 2010\nSomanetics Corporation\n1653 East Maple Road\nTroy, MI 48083\nLadies and Gentlemen:\nIn connection with our possible interest in a transaction involving the acquisition of Somanetics Corporation (the “Company”), you are furnishing us\nor our representatives with certain information which is either non-public, confidential or proprietary in nature. All information furnished to us or\nour representatives by the Company or any of its employees, representatives, agents or advisors (including attorneys, accountants and financial\nadvisors), shall be considered confidential and proprietary, and together with analyses, compilations, forecasts, studies or other documents prepared\nby us, our agents, advisors (including attorneys, accountants and financial advisors), representatives or employees which contain such information, is\nhereinafter referred to as the “Information”. In consideration of the Company furnishing us with the Information, we agree that:\n1. The Information will be kept confidential and shall not, without the prior written consent of the Company, be disclosed by us, or by our affiliates,\nagents, representatives, advisors or employees, in any manner whatsoever, in whole or in part, and shall not be used by us, our affiliates, agents,\nrepresentatives, advisors or employees, other than to determine whether we wish to enter into, or other than in connection with, the transaction\ndescribed above. Moreover, we agree to reveal the Information only to our affiliates, agents, representatives, advisors and employees who need to\nknow the Information for the purpose of evaluating, or otherwise in connection with, the transaction described above who are informed of the\nconfidential nature of the Information. We agree to be responsible for any breach of this Agreement by our affiliates, agents, representatives,\nadvisors and employees.\n2. Without the prior written consent of the other party, neither party nor its representatives shall disclose to any person either the fact that discussions\nor negotiations are taking place concerning the possible transaction referred to herein or any of the terms, conditions or other facts with respect to\nany such possible transaction including the status thereof, except as required by applicable law or exchange listing agreements, rules or policies.\n3. All copies of the Information, except for that portion of the Information which consists of analyses, compilations, forecasts, studies or other\ndocuments prepared by us, our agents, representatives, advisors or employees, will be returned to the Company promptly upon request or if we\ndecide not to proceed with an acquisition of the Company (and we will inform the Company promptly of any such decision). At the time of such\nreturn, we will destroy any such analyses, compilations, forecasts, studies or other documents prepared by us, our agents, representatives, advisors or\nemployees.\n2\n4. The term Information shall not include such portions of the Information which (i) are or become generally available to the public other than as a\nresult of disclosure by us, our affiliates, agents, representatives, advisors or employees, or (ii) become available to us or to our affiliates, agents,\nrepresentatives, advisors or employees on a non-confidential basis from a source which was not then prohibited from disclosing such Information to\nus by a legal, contractual or fiduciary obligation to the Company, or (iii) which was in our possession, or in the possession of our affiliates, agents,\nrepresentatives, advisors or employees, or otherwise available to us, or to our affiliates, agents, representatives, advisors or employees, on a non-\nconfidential basis prior to its disclosure to us or one or more of our affiliates, agents, representatives, advisors or employees, or (iv) which is\nindependently acquired or developed by us without violating any obligations under this Agreement.\n5. The above undertakings of non-disclosure and confidentiality shall remain in force for a period of two (2) years from the date of this Agreement,\nexcept that there shall be no time limit, and such undertakings shall continue indefinitely, with respect to Information regarding algorithms relating\nto the Company’s past, present and proposed products, the calibration of those products, the source code and applications software related to those\nproducts, and the analog signal processing section of the pre-amp pcba relating to those products.\n6. In the event that we or anyone to whom we transmit the Information pursuant to this Agreement is requested or becomes legally compelled to\ndisclose any of the Information (whether by oral questions, interrogatories, requests for Information or documents, subpoena, Civil Investigative\nDemand or similar process or otherwise), we will provide the Company with prompt notice, to the extent practicable, so that the Company may seek\na protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. We will cooperate with the Company,\nat the Company’s expense, to obtain such protective order or other appropriate remedy. In the event that such protective order or other remedy is not\nobtained, the Company agrees that such disclosure may be made without liability hereunder. We will furnish only that portion of the Information\nwhich we are, in the opinion of our counsel or the counsel of our representative, legally required to disclose and will use reasonable efforts to obtain\nreliable assurance that confidential treatment will be accorded the Information.\n7. We agree that for a period of one year from the date of this Agreement, we and our affiliates will not solicit for employment any employee of the\nCompany with whom we or our affiliates had direct contact in connection with our consideration of a possible transaction hereunder.\nNotwithstanding the foregoing, this paragraph shall not preclude our right to make generalized searches for employees by use of advertisements in\nthe media (including, without limitation, trade media) or by engaging search firms, so long as such general searches are not specifically targeted at\nsuch Company employees, and we shall not be prohibited from, and shall not be required to obtain the Company’s consent prior to, offering to\nemploy or employing any person who (i) contacts us on his or her own initiative without any direct or indirect solicitation by us, (ii) responds to an\nadvertisement or other general solicitation for employment not directed at employees of the Company, (iii) began employment discussions with us\nprior to the date of this agreement or (iv) is no longer employed by the Company at the time we commence employment discussions with such\nperson.\n3\n8. None of the Company or any of its affiliates, agents, advisors or representatives (i) has made or makes any representation or warranty, expressed\nor implied, as to the accuracy or completeness of the Information or (ii) shall have any liability whatsoever to us or our affiliates, agents,\nrepresentatives, advisors or employees relating to or resulting from the use of the Information or any errors therein or omissions therefrom. The\nInformation may include certain statements, estimates and projections provided by the Company with regard to the anticipated future performance of\nthe Company. Such statements, estimates and projections reflect various assumptions made by the Company concerning anticipated results, which\nassumptions may or may not prove to be correct. No representations are made as to the accuracy of such assumptions, statements, estimates or\nprojections, including any budget(s). The only information that will have any legal effect will be specifically represented in a definitive purchase\nagreement; and in no event will such definitive purchase agreement contain any representation as to the projections.\n9. You understand that (i) the Company shall conduct the process for a possible transaction as it, in its sole discretion, shall determine (including,\nwithout limitation, negotiating with any prospective buyer and entering into definitive agreements without prior notice to us or any other person),\n(ii) any procedures relating to a potential transaction may be changed at any time without notice to you or any other person, (iii) the Company shall\nhave the right to reject or accept any potential buyer, proposal or offer, for any reason whatsoever, in its sole discretion, and (iv) neither we nor any\nof our affiliates, agents, advisors or representatives shall have any claims whatsoever against the Company or any of its respective directors, officers,\nshareholders, owners, affiliates or agents arising out of or relating to a potential transaction (other than those against the parties to a definitive\nagreement with you in accordance with the terms thereof). We agree that, subject to the terms of this Agreement, unless and until a definitive\npurchase agreement between the Company and us with regard to any transaction has been executed and delivered, neither the Company nor we will\nbe under any legal obligation of any kind whatsoever with respect to such transaction.\n10. In consideration of the Information being furnished to us, we hereby further agree that, without the prior written consent of the Board of\nDirectors of the Company, for a period of one year from the date hereof, neither we nor any of our affiliates (as such term is defined in Rule 12b-2\nunder the Securities Exchange Act of 1934, as amended), acting alone or as part of a group, will (i) acquire or offer or agree to acquire, directly or\nindirectly, by purchase or otherwise, any voting securities or securities convertible into voting securities of the Company, (ii) propose to enter into,\ndirectly or indirectly, any merger or business combination involving the Company or any of its subsidiaries, (iii) otherwise seek to influence or\ncontrol, in any manner whatsoever (including proxy solicitation or otherwise), the management or policies of the Company, (iv) assist, advise or\nencourage (including by knowingly providing or arranging financing for that purpose) any other person in doing any of the foregoing, (v) call,\nrequest or seek to have called any meeting of the shareholders of the Company or execute any written consent in lieu of a meeting of holders of any\nsecurities of the Company, (vi) otherwise act, to seek the removal of any member of the Board of Directors, seek to elect or place a representative on\nthe Board of Directors of the Company, or seek to control or influence the management, Board of Directors or policies of the Company, (vii) seek to\nhave the Company waive, amend or modify its governing documents (for example, its articles or bylaws), (viii) take any action which might force\nthe Company to make a public announcement regarding any of the types of matters\n4\nset forth above, (ix) make any request directly or indirectly, to amend or waive any provision of this section of this Agreement (including this\nsentence), (x) take any action that might require the Company to make a public announcement regarding the possibility of a business combination or\nother type of transaction or activity described in this section of this Agreement, or (xi) enter into any discussions or arrangements with any third\nparty with respect to any of the foregoing. The foregoing section shall not prevent us (alone or jointly with other sources of buyer financing) from\nmaking non-public proposals to the Company with respect to a possible transaction in compliance with written procedures provided to you by the\nCompany or its advisors. Notwithstanding the foregoing, in the event that the Board of Directors of the Company approves a transaction with any\nperson or entity that would result in such person or entity beneficially owning more than 20% of the outstanding voting securities of the Company\n(or a successor to the Company in a merger or consolidation transaction) or all or substantially all of the Company’s assets, or any person, entity or\n“group” (as defined in the 1934 Act), other than us or any of our affiliates, has commenced or publicly announced its intention to commence a tender\noffer for more than 20% of the outstanding voting securities of the Company, the provisions of this Section 10 shall terminate.\n11. Tt is further understood and agreed that Bruce Barrett, Mary Ann Victor or Bill Iacona will arrange for appropriate contacts with the Company. It\nis also understood and agreed that all (i) communications regarding a possible transaction, (ii) requests for additional information, (iii) requests for\nfacility tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed exclusively to Bruce\nBarrett, Mary Ann Victor or Bill Iacona, and that none of us or our affiliates, agents, advisors or representatives will initiate or cause to be initiated\nany communication with any director, officer, employee or vendor of the Company concerning the Information or a potential transaction.\n12. We understand and agree that the Company may be irreparably harmed by violation of this Agreement. Monetary damages alone may not be a\nsufficient remedy for any breach of this Agreement and, therefore, in addition to the Company’s other rights and remedies, the Company will be\nentitled to seek specific performance and injunctive or other equitable relief to enforce this Agreement. In addition, in the event of litigation\ninvolving this Agreement, the prevailing party will be entitled to attorneys’ fees and other costs incurred in connection with such litigation.\n13. The Company reserves the right to assign its rights, powers and privileges under this Agreement (including, without limitation, the right to\nenforce the terms of this Agreement) to any successor — in — interest to the Company by merger or sale of all or substantially all of the assets of the\nCompany.\n14. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent\nof such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity of enforceability of such\nprovisions in any other jurisdiction.\n5\n15. This Agreement shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts without regard to the\nprinciples of conflicts of law.\nVery truly yours,\nTYCO HEALTHCARE GROUP LP d/b/a COVIDIEN\nBy: /s/ Matthew J. Nicolella\nMatthew J. Nicolella\nTitle: Vice President\nAccepted and agreed:\nSOMANETICS CORPORATION\nBy: /s/ Bruce J. Barrett\nBruce J. Barrett\nTitle: President and Chief Executive Officer	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit (d)(3)\nMarch 16, 2010\nSomanetics Corporation\n1653 East Maple Road\nTroy, MI 48083\nLadies and Gentlemen:\nIn connection with our possible interest in a transaction involving the acquisition of Somanetics Corporation (the "Company"), you are furnishing us\nor\nour\nrepresentatives with certain information which is either non-public, confidential or proprietary in nature. All information furnished to us or\nour representatives by the Company or any of its employees, representatives, agents or advisors (including attorneys, accountants and financial\nadvisors), shall be considered confidential and proprietary, and together with analyses, compilations, forecasts, studies or other documents prepared\nby\nus, our agents, advisors (including attorneys, accountants and financial advisors), representatives or employees which contain such information, is\nhereinafter referred to as the "Information". In consideration of the Company furnishing us with the Information, we agree that:\n1. The Information will be kept confidential and shall not, without the prior written consent of the Company, be disclosed by us, or by our affiliates,\nagents, representatives, advisors or employees, in any manner whatsoever, in whole or in part, and shall not be used by us, our affiliates, agents,\nrepresentatives, advisors or employees, other than to determine whether we wish to enter into, or other than in connection with, the transaction\ndescribed above. Moreover, we agree to reveal the Information only to our affiliates, agents, representatives, advisors and employees who need\nto\nknow the Information for the purpose of evaluating, or otherwise in connection with, the transaction described above who are informed of the\nconfidential nature of the Information. We agree to be responsible for any breach of this Agreement by our affiliates, agents, representatives,\nadvisors and employees.\n2. Without the prior written consent of the other party, neither party nor its representatives shall disclose to any person either the fact that discussions\nor negotiations are taking place concerning the possible transaction referred to herein or any of the terms, conditions or other facts with respect\nto\nany such possible transaction including the status thereof, except as required by applicable law or exchange listing agreements, rules or policies.\n3. All copies of the Information, except for that portion of the Information which consists of analyses, compilations, forecasts, studies or other\ndocuments prepared by us, our agents, representatives, advisors or employees, will be returned to the Company promptly upon request or if we\ndecide not to proceed with an acquisition of the Company (and we will inform the Company promptly of any such decision). At the time of such\nreturn, we will destroy any such analyses, compilations, forecasts, studies or other documents prepared by us, our agents, representatives, advisors\nor\nemployees.\n1\n2\n4. The term Information shall not include such portions of the Information which (i) are or become generally available to the public other than as a\nresult of disclosure by us, our affiliates, agents, representatives, advisors or employees, or (ii) become available to us or to our affiliates, agents,\nrepresentatives, advisors or employees on a non-confidential basis from a source which was not then prohibited from disclosing such Information to\nus\nby a legal, contractual or fiduciary obligation to the Company, or (iii) which was in our possession, or in the possession of our affiliates, agents,\nrepresentatives, advisors or employees, or otherwise available to us, or to our affiliates, agents, representatives, advisors or employees, on a non-\nconfidential basis prior to its disclosure to us or one or more of our affiliates, agents, representatives, advisors or employees, or (iv) which is\nindependently acquired or developed by us without violating any obligations under this Agreement.\n5.\nThe above undertakings of non-disclosure and confidentiality shall remain in force for a period of two (2) years from the date of this Agreement,\nexcept that there shall be no time limit, and such undertakings shall continue indefinitely, with respect to Information regarding algorithms relating\nto the Company's past, present and proposed products, the calibration of those products, the source code and applications software related to those\nproducts, and the analog signal processing section of the pre-amp pcba relating to those products.\n6. In the event that we or anyone to whom we transmit the Information pursuant to this Agreement is requested or becomes legally compelled to\ndisclose any of the Information (whether by oral questions, interrogatories, requests for Information or documents, subpoena, Civil Investigative\nDemand or similar process or otherwise), we will provide the Company with prompt notice, to the extent practicable, so that the Company may seek\na protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. We will cooperate with the Company,\nat the Company's expense, to obtain such protective order or other appropriate remedy. In the event that such protective order or other remedy is not\nobtained, the Company agrees that such disclosure may be made without liability hereunder. We will furnish only that portion of the Information\nwhich we are, in the opinion of our counsel or the counsel of our representative, legally required to disclose and will use reasonable efforts to\nobtain\nreliable assurance that confidential treatment will be accorded the Information.\n7. We agree that for a period of one year from the date of this Agreement, we and our affiliates will not solicit for employment any employee of\nthe\nCompany with whom we or our affiliates had direct contact in connection with our consideration of a possible transaction hereunder.\nNotwithstanding the foregoing, this paragraph shall not preclude our right to make generalized searches for employees by use of advertisements in\nthe media (including, without limitation, trade media) or by engaging search firms, so long as such general searches are not specifically targeted\nat\nsuch Company employees, and we shall not be prohibited from, and shall not be required to obtain the Company's consent prior to, offering to\nemploy\nor\nemploying\nany\nperson\nwho\n(i)\ncontacts\nus\non\nhis\nor\nher\nown\ninitiative\nwithout\nany\ndirect\nor\nindirect\nsolicitation\nby\nus,\n(ii)\nresponds\nto\nan\nadvertisement or other general solicitation for employment not directed at employees of the Company, (iii) began employment discussions with\nus\nprior to the date of this agreement or (iv) is no longer employed by the Company at the time we commence employment discussions with such\nperson.\n3\n8.\nNone of the Company or any of its affiliates, agents, advisors or representatives (i) has made or makes any representation or warranty, expressed\nor implied, as to the accuracy or completeness of the Information or (ii) shall have any liability whatsoever to us or our affiliates, agents,\nrepresentatives, advisors or employees relating to or resulting from the use of the Information or any errors therein or omissions therefrom. The\nInformation may include certain statements, estimates and projections provided by the Company with regard to the anticipated future performance of\nthe Company. Such statements, estimates and projections reflect various assumptions made by the Company concerning anticipated results, which\nassumptions may or may not prove to be correct. No representations are made as to the accuracy of such assumptions, statements, estimates or\nprojections, including any budget(s). The only information that will have any legal effect will be specifically represented in a definitive purchase\nagreement; and in no event will such definitive purchase agreement contain any representation as to the projections.\n9. You understand that (i) the Company shall conduct the process for a possible transaction as it, in its sole discretion, shall determine (including,\nwithout limitation, negotiating with any prospective buyer and entering into definitive agreements without prior notice to us or any other person),\n(ii) any procedures relating to a potential transaction may be changed at any time without notice to you or any other person, (iii) the Company shall\nhave\nthe\nright\nto\nreject\nor\naccept\nany\npotential\nbuyer,\nproposal\nor\noffer,\nfor\nany\nreason\nwhatsoever,\nin\nits\nsole\ndiscretion,\nand\n(iv)\nneither\nwe\nnor\nany\nof our affiliates, agents, advisors or representatives shall have any claims whatsoever against the Company or any of its respective directors, officers,\nshareholders, owners, affiliates or agents arising out of or relating to a potential transaction (other than those against the parties to a definitive\nagreement with you in accordance with the terms thereof). We agree that, subject to the terms of this Agreement, unless and until a definitive\npurchase agreement between the Company and us with regard to any transaction has been executed and delivered, neither the Company nor we will\nbe under any legal obligation of any kind whatsoever with respect to such transaction.\n10. In consideration of the Information being furnished to us, we hereby further agree that, without the prior written consent of the Board of\nDirectors of the Company, for a period of one year from the date hereof, neither we nor any of our affiliates (as such term is defined in Rule 12b-2\nunder the Securities Exchange Act of 1934, as amended), acting alone or as part of a group, will (i) acquire or offer or agree to acquire, directly\nor\nindirectly, by purchase or otherwise, any voting securities or securities convertible into voting securities of the Company, (ii) propose to enter into,\ndirectly or indirectly, any merger or business combination involving the Company or any of its subsidiaries, (iii) otherwise seek to influence\nor\ncontrol, in any manner whatsoever (including proxy solicitation or otherwise), the management or policies of the Company, (iv) assist, advise or\nencourage (including by knowingly providing or arranging financing for that purpose) any other person in doing any of the foregoing, (v) call,\nrequest or seek to have called any meeting of the shareholders of the Company or execute any written consent in lieu of a meeting of holders of any\nsecurities of the Company, (vi) otherwise act, to seek the removal of any member of the Board of Directors, seek to elect or place a representative on\nthe Board of Directors of the Company, or seek to control or influence the management, Board of Directors or policies of the Company, (vii) seek\nto\nhave the Company waive, amend or modify its governing documents (for example, its articles or bylaws), (viii) take any action which might\nforce\nthe Company to make a public announcement regarding any of the types of matters\n4\nset forth above, (ix) make any request directly or indirectly, to amend or waive any provision of this section of this Agreement (including this\nsentence), (x) take any action that might require the Company to make a public announcement regarding the possibility of a business combination or\nother type of transaction or activity described in this section of this Agreement, or (xi) enter into any discussions or arrangements with any third\nparty with respect to any of the foregoing. The foregoing section shall not prevent us (alone or jointly with other sources of buyer financing)\nfrom\nmaking non-public proposals to the Company with respect to a possible transaction in compliance with written procedures provided to you by the\nCompany or its advisors. Notwithstanding the foregoing, in the event that the Board of Directors of the Company approves a transaction with any\nperson or entity that would result in such person or entity beneficially owning more than 20% of the outstanding voting securities of the Company\n(or a successor to the Company in a merger or consolidation transaction) or all or substantially all of the Company's assets, or any person, entity or\n"group" (as defined in the 1934 Act), other than us or any of our affiliates, has commenced or publicly announced its intention to commence a tender\noffer for more than 20% of the outstanding voting securities of the Company, the provisions of this Section 10 shall terminate.\n11. It is further understood and agreed that Bruce Barrett, Mary Ann Victor or Bill Iacona will arrange for appropriate contacts with the Company. It\nis\nalso\nunderstood\nand\nagreed\nthat\nall\n(i)\ncommunications\nregarding\na\npossible\ntransaction,\n(ii)\nrequests\nfor\nadditional\ninformation,\n(iii)\nrequests\nfor\nfacility tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed exclusively to Bruce\nBarrett, Mary Ann Victor or Bill Iacona, and that none of us or our affiliates, agents, advisors or representatives will initiate or cause to be\ninitiated\nany communication with any director, officer, employee or vendor of the Company concerning the Information or a potential transaction.\n12. We understand and agree that the Company may be irreparably harmed by violation of this Agreement. Monetary damages alone may not be a\nsufficient remedy for any breach of this Agreement and, therefore, in addition to the Company's other rights and remedies, the Company\nwill\nbe\nentitled to seek specific performance and injunctive or other equitable relief to enforce this Agreement. In addition, in the event of litigation\ninvolving this Agreement, the prevailing party will be entitled to attorneys' fees and other costs incurred in connection with such litigation.\n13. The Company reserves the right to assign its rights, powers and privileges under this Agreement (including, without limitation, the right to\nenforce the terms of this Agreement) to any successor - in - interest to the Company by merger or sale of all or substantially all of the assets of the\nCompany.\n14. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent\nof such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity of enforceability of such\nprovisions in any other jurisdiction.\n5\n15. This Agreement shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts without regard to the\nprinciples of conflicts of law.\nVery truly yours,\nTYCO HEALTHCARE GROUP LP d/b/a COVIDIEN\nBy: /s/ Matthew J. Nicolella\nMatthew J. Nicolella\nTitle: Vice President\nAccepted and agreed:\nSOMANETICS CORPORATION\nBy:\n/s/ Bruce J. Barrett\nBruce J. Barrett\nTitle: President and Chief Executive Officer	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit (d)(3)\nMarch 16, 2010\nSomanetics Corporation\n1653 East Maple Road\nTroy, MI 48083\nLadies and Gentlemen:\nIn connection with our possible interest in a transaction involving the acquisition of Somanetics Corporation (the “Company”), you are furnishing us\nor our representatives with certain information which is either non-public, confidential or proprietary in nature. All information furnished to us or\nour representatives by the Company or any of its employees, representatives, agents or advisors (including attorneys, accountants and financial\nadvisors), shall be considered confidential and proprietary, and together with analyses, compilations, forecasts, studies or other documents prepared\nby us, our agents, advisors (including attorneys, accountants and financial advisors), representatives or employees which contain such information, is\nhereinafter referred to as the “Information”. In consideration of the Company furnishing us with the Information, we agree that:\n1. The Information will be kept confidential and shall not, without the prior written consent of the Company, be disclosed by us, or by our affiliates,\nagents, representatives, advisors or employees, in any manner whatsoever, in whole or in part, and shall not be used by us, our affiliates, agents,\nrepresentatives, advisors or employees, other than to determine whether we wish to enter into, or other than in connection with, the transaction\ndescribed above. Moreover, we agree to reveal the Information only to our affiliates, agents, representatives, advisors and employees who need to\nknow the Information for the purpose of evaluating, or otherwise in connection with, the transaction described above who are informed of the\nconfidential nature of the Information. We agree to be responsible for any breach of this Agreement by our affiliates, agents, representatives,\nadvisors and employees.\n2. Without the prior written consent of the other party, neither party nor its representatives shall disclose to any person either the fact that discussions\nor negotiations are taking place concerning the possible transaction referred to herein or any of the terms, conditions or other facts with respect to\nany such possible transaction including the status thereof, except as required by applicable law or exchange listing agreements, rules or policies.\n3. All copies of the Information, except for that portion of the Information which consists of analyses, compilations, forecasts, studies or other\ndocuments prepared by us, our agents, representatives, advisors or employees, will be returned to the Company promptly upon request or if we\ndecide not to proceed with an acquisition of the Company (and we will inform the Company promptly of any such decision). At the time of such\nreturn, we will destroy any such analyses, compilations, forecasts, studies or other documents prepared by us, our agents, representatives, advisors or\nemployees.\n1\n2\n4. The term Information shall not include such portions of the Information which (i) are or become generally available to the public other than as a\nresult of disclosure by us, our affiliates, agents, representatives, advisors or employees, or (ii) become available to us or to our affiliates, agents,\nrepresentatives, advisors or employees on a non-confidential basis from a source which was not then prohibited from disclosing such Information to\nus by a legal, contractual or fiduciary obligation to the Company, or (iii) which was in our possession, or in the possession of our affiliates, agents,\nrepresentatives, advisors or employees, or otherwise available to us, or to our affiliates, agents, representatives, advisors or employees, on a non-\nconfidential basis prior to its disclosure to us or one or more of our affiliates, agents, representatives, advisors or employees, or (iv) which is\nindependently acquired or developed by us without violating any obligations under this Agreement.\n5. The above undertakings of non-disclosure and confidentiality shall remain in force for a period of two (2) years from the date of this Agreement,\nexcept that there shall be no time limit, and such undertakings shall continue indefinitely, with respect to Information regarding algorithms relating\nto the Company’s past, present and proposed products, the calibration of those products, the source code and applications software related to those\nproducts, and the analog signal processing section of the pre-amp pcba relating to those products.\n6. In the event that we or anyone to whom we transmit the Information pursuant to this Agreement is requested or becomes legally compelled to\ndisclose any of the Information (whether by oral questions, interrogatories, requests for Information or documents, subpoena, Civil Investigative\nDemand or similar process or otherwise), we will provide the Company with prompt notice, to the extent practicable, so that the Company may seek\na protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. We will cooperate with the Company,\nat the Company’s expense, to obtain such protective order or other appropriate remedy. In the event that such protective order or other remedy is not\nobtained, the Company agrees that such disclosure may be made without liability hereunder. We will furnish only that portion of the Information\nwhich we are, in the opinion of our counsel or the counsel of our representative, legally required to disclose and will use reasonable efforts to obtain\nreliable assurance that confidential treatment will be accorded the Information.\n7. We agree that for a period of one year from the date of this Agreement, we and our affiliates will not solicit for employment any employee of the\nCompany with whom we or our affiliates had direct contact in connection with our consideration of a possible transaction hereunder.\nNotwithstanding the foregoing, this paragraph shall not preclude our right to make generalized searches for employees by use of advertisements in\nthe media (including, without limitation, trade media) or by engaging search firms, so long as such general searches are not specifically targeted at\nsuch Company employees, and we shall not be prohibited from, and shall not be required to obtain the Company’s consent prior to, offering to\nemploy or employing any person who (i) contacts us on his or her own initiative without any direct or indirect solicitation by us, (ii) responds to an\nadvertisement or other general solicitation for employment not directed at employees of the Company, (iii) began employment discussions with us\nprior to the date of this agreement or (iv) is no longer employed by the Company at the time we commence employment discussions with such\nperson.\n3\n8. None of the Company or any of its affiliates, agents, advisors or representatives (i) has made or makes any representation or warranty, expressed\nor implied, as to the accuracy or completeness of the Information or (ii) shall have any liability whatsoever to us or our affiliates, agents,\nrepresentatives, advisors or employees relating to or resulting from the use of the Information or any errors therein or omissions therefrom. The\nInformation may include certain statements, estimates and projections provided by the Company with regard to the anticipated future performance of\nthe Company. Such statements, estimates and projections reflect various assumptions made by the Company concerning anticipated results, which\nassumptions may or may not prove to be correct. No representations are made as to the accuracy of such assumptions, statements, estimates or\nprojections, including any budget(s). The only information that will have any legal effect will be specifically represented in a definitive purchase\nagreement; and in no event will such definitive purchase agreement contain any representation as to the projections.\n9. You understand that (i) the Company shall conduct the process for a possible transaction as it, in its sole discretion, shall determine (including,\nwithout limitation, negotiating with any prospective buyer and entering into definitive agreements without prior notice to us or any other person),\n(ii) any procedures relating to a potential transaction may be changed at any time without notice to you or any other person, (iii) the Company shall\nhave the right to reject or accept any potential buyer, proposal or offer, for any reason whatsoever, in its sole discretion, and (iv) neither we nor any\nof our affiliates, agents, advisors or representatives shall have any claims whatsoever against the Company or any of its respective directors, officers,\nshareholders, owners, affiliates or agents arising out of or relating to a potential transaction (other than those against the parties to a definitive\nagreement with you in accordance with the terms thereof). We agree that, subject to the terms of this Agreement, unless and until a definitive\npurchase agreement between the Company and us with regard to any transaction has been executed and delivered, neither the Company nor we will\nbe under any legal obligation of any kind whatsoever with respect to such transaction.\n10. In consideration of the Information being furnished to us, we hereby further agree that, without the prior written consent of the Board of\nDirectors of the Company, for a period of one year from the date hereof, neither we nor any of our affiliates (as such term is defined in Rule 12b-2\nunder the Securities Exchange Act of 1934, as amended), acting alone or as part of a group, will (i) acquire or offer or agree to acquire, directly or\nindirectly, by purchase or otherwise, any voting securities or securities convertible into voting securities of the Company, (ii) propose to enter into,\ndirectly or indirectly, any merger or business combination involving the Company or any of its subsidiaries, (iii) otherwise seek to influence or\ncontrol, in any manner whatsoever (including proxy solicitation or otherwise), the management or policies of the Company, (iv) assist, advise or\nencourage (including by knowingly providing or arranging financing for that purpose) any other person in doing any of the foregoing, (v) call,\nrequest or seek to have called any meeting of the shareholders of the Company or execute any written consent in lieu of a meeting of holders of any\nsecurities of the Company, (vi) otherwise act, to seek the removal of any member of the Board of Directors, seek to elect or place a representative on\nthe Board of Directors of the Company, or seek to control or influence the management, Board of Directors or policies of the Company, (vii) seek to\nhave the Company waive, amend or modify its governing documents (for example, its articles or bylaws), (viii) take any action which might force\nthe Company to make a public announcement regarding any of the types of matters\n4\nset forth above, (ix) make any request directly or indirectly, to amend or waive any provision of this section of this Agreement (including this\nsentence), (x) take any action that might require the Company to make a public announcement regarding the possibility of a business combination or\nother type of transaction or activity described in this section of this Agreement, or (xi) enter into any discussions or arrangements with any third\nparty with respect to any of the foregoing. The foregoing section shall not prevent us (alone or jointly with other sources of buyer financing) from\nmaking non-public proposals to the Company with respect to a possible transaction in compliance with written procedures provided to you by the\nCompany or its advisors. Notwithstanding the foregoing, in the event that the Board of Directors of the Company approves a transaction with any\nperson or entity that would result in such person or entity beneficially owning more than 20% of the outstanding voting securities of the Company\n(or a successor to the Company in a merger or consolidation transaction) or all or substantially all of the Company’s assets, or any person, entity or\n“group” (as defined in the 1934 Act), other than us or any of our affiliates, has commenced or publicly announced its intention to commence a tender\noffer for more than 20% of the outstanding voting securities of the Company, the provisions of this Section 10 shall terminate.\n11. It is further understood and agreed that Bruce Barrett, Mary Ann Victor or Bill Iacona will arrange for appropriate contacts with the Company. It\nis also understood and agreed that all (i) communications regarding a possible transaction, (ii) requests for additional information, (iii) requests for\nfacility tours or management meetings and (iv) discussions or questions regarding procedures, will be submitted or directed exclusively to Bruce\nBarrett, Mary Ann Victor or Bill Iacona, and that none of us or our affiliates, agents, advisors or representatives will initiate or cause to be initiated\nany communication with any director, officer, employee or vendor of the Company concerning the Information or a potential transaction.\n12. We understand and agree that the Company may be irreparably harmed by violation of this Agreement. Monetary damages alone may not be a\nsufficient remedy for any breach of this Agreement and, therefore, in addition to the Company’s other rights and remedies, the Company will be\nentitled to seek specific performance and injunctive or other equitable relief to enforce this Agreement. In addition, in the event of litigation\ninvolving this Agreement, the prevailing party will be entitled to attorneys’ fees and other costs incurred in connection with such litigation.\n13. The Company reserves the right to assign its rights, powers and privileges under this Agreement (including, without limitation, the right to\nenforce the terms of this Agreement) to any successor – in – interest to the Company by merger or sale of all or substantially all of the assets of the\nCompany.\n14. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent\nof such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity of enforceability of such\nprovisions in any other jurisdiction.\n5\n15. This Agreement shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts without regard to the\nprinciples of conflicts of law.\nVery truly yours,\nTYCO HEALTHCARE GROUP LP d/b/a COVIDIEN\nBy: /s/ Matthew J. Nicolella\nTitle:\nMatthew J. Nicolella\nVice President\nAccepted and agreed:\nSOMANETICS CORPORATION\nBy: /s/ Bruce J. Barrett\nTitle:\nBruce J. Barrett\nPresident and Chief Executive Officer
+5368d4c4212375ed16c50874d99d179d.pdf	effective_date jurisdiction party term	EX-99.2 3 dex992.htm CONFIDENTIALITY AGREEMENT\nExhibit 99.2\nCONFIDENTIAL\nEXCO Resources, Inc.\n12377 Merit Drive, Suite 1700\nDallas, Texas 75251\nJanuary 12, 2011\nDouglas H. Miller\nc/o EXCO Resources, Inc.\n12377 Merit Drive, Suite 1700\nDallas, Texas 75251\nDear Mr. Miller:\nIn connection with the consideration of a possible negotiated buyout transaction (the “Transaction”) involving you and EXCO Resources, Inc.,\na Texas corporation (the “Company,” which term shall, for purposes of this letter agreement, include its subsidiaries), the Special Committee of the\nBoard of Directors of the Company formed on November 3, 2010 (the “Special Committee”) is prepared to make available to you, on behalf of the\nCompany, certain information concerning the Company, upon the terms and subject to the conditions set forth in this letter agreement. As a condition\nto such information being furnished to you, you agree to comply with all the terms of this letter agreement.\n1. Definitions.\n1.1 Evaluation Material. The term “Evaluation Material” shall mean all information, data, reports, interpretations, forecasts, business plans and\nrecords, financial or otherwise, whether written, oral, electronic, visual or otherwise, concerning or related to the Company, any of its subsidiaries or\njoint ventures, or any of the businesses, properties, assets, operations, products, services, liabilities, condition (financial or otherwise), employees,\nprospects and/or results of operations of any of the foregoing (whether prepared by the Company, any of its Representatives (as defined below) or\notherwise) that previously has been or may be furnished to you or any of your Representatives by or on behalf of the Company, the Special\nCommittee or any of their respective Representatives, either directly or indirectly through one of your Approved Financing Sources (as defined\nbelow) (collectively, “Information”), as well as all notes, analyses, compilations, summaries, extracts, studies, interpretations or other materials\nprepared by you or any of your Representatives, but only to the extent that the foregoing contain, reflect or are based upon any Information\n(“Derivative Information”). The term “Evaluation Material” shall also be deemed to include, without limitation, the status or terms and conditions of\nany discussions or negotiations taking place concerning a possible Transaction or any similar transaction. The term “Evaluation Material” does not\ninclude information or any portion thereof that (i) is or becomes generally available to the public (other than as a result of a disclosure by you or any\nof your Representatives in violation of this letter agreement or any other obligation of\n1\nconfidentiality to the Company), (ii) was within your possession without being subject to any contractual, legal, fiduciary or other obligation of\nconfidentiality to the Company with respect to such Information prior to it being furnished to you by or on behalf of the Company, the Special\nCommittee or any of their respective Representatives (other than in your capacity as an officer or director of the Company, in which case this clause\n(ii) shall not be applicable), or (iii) becomes available to you on a non-confidential basis from a source other than the Company or its\nRepresentatives (other than in your capacity as an officer or director of the Company, in which case this clause (iii) shall not be applicable);\nprovided, that such source is not actually known by you, after reasonable inquiry, to be bound by a confidentiality obligation (whether by agreement\nor otherwise) to the Company or any of its Representatives (including the Special Committee).\n1.2 Other Definitions. As used in this letter agreement:\n(i) The term “affiliate” shall have the meaning ascribed to such term in Rule 12b-2 promulgated under the Exchange Act;\n(ii) The term “Acquisition Transaction” shall mean (a) any merger, consolidation or other business combination, or liquidation, reorganization,\nor similar transaction, that results in any person or group directly or indirectly owning 50% or more of the voting securities of the Company, (b) the\nacquisition or sale (through tender or exchange offer, issuance or otherwise) of 50% or more of the voting securities of the Company, (c) the sale,\nlease or other actual or effective disposition of 50% or more of the assets of the Company based on the least of the book value or fair market value of\nsuch assets or the percentage of revenues or net income generated by such assets during the 12 months ending on December 31, 2010, or (d) any\ncombination of the foregoing, whether as a single transaction or a series of transactions;\n(iii) The term “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules, regulations and schedules\npromulgated thereunder;\n(iv) The term “Fully Financed” shall mean, when used with respect to an offer, having financing for such offer (a) in an amount sufficient to\npay the purchase price and any transaction fees in connection with, and to refinance any debt that is reasonably expected to become payable upon\nconsummation of, an Acquisition Transaction that constitutes a Superior Proposal and (b) that is evidenced by executed commitment papers and/or\nexecuted definitive financing documentation from one or more bona fide financing sources with aggregate sufficient capital to provide such\nfinancing, which commitment papers and/or documentation contain terms and conditions customary for transactions of this type and size of\ntransaction.\n(v) The term “group” shall have the meaning given to that term (or as that term is used) in Section 13(d)(3) of the Exchange Act;\n(vi) The term “person” shall be broadly interpreted to include any individual, corporation, partnership, limited liability company, group or\nother entity;\n(vii) The term “Representatives” shall mean, with respect to any person, such person’s affiliates (including, without limitation, subsidiaries)\nand joint ventures and any of the foregoing persons’ respective directors, officers, employees, agents, representatives and advisors (including,\nwithout limitation, financial advisors, bankers, consultants, agents, counsel and\n2\naccountants) and Approved Financing Sources; provided, however, that, when used with respect to the Company, the Company’s Representatives\nshall not include you or any other director of the Company who is also personnel of any Approved Financing Source, other than when acting in your\nor their capacity as a director or officer of the Company; and\n(viii) The term “Superior Proposal” shall mean, when used with respect to a pending Acquisition Transaction, any Fully Financed, bona fide\nwritten offer to acquire all of the shares of common stock of the Company not already owned by the offeror (or by any other persons acting in\nconcert with the offeror) (a) for cash at a price per share at least $1.00 higher than the price per share being offered in such pending Acquisition\nTransaction, (b) pursuant to a transaction that, taking into account all relevant factors, including without limitation, the source of financing,\nregulatory concerns and other factors, is reasonably likely to be consummated, (c) that is otherwise on customary terms and conditions and (d) that\ncan immediately be accepted by the Special Committee (subject to any legal or other requirements binding upon, or imposed by, the Special\nCommittee, such as the need to evaluate and approve the offer under applicable law). For purposes of determining whether an offer constitutes a\nSuperior Proposal, in the event the consideration being offered in such pending Acquisition Transaction includes any publicly traded equity\nsecurities, those equity securities shall be ascribed a value equal to the volume weighted average of the closing prices of such security on the primary\nsecurities exchange on which such security is traded for the five (5) consecutive trading days ending on and including the second trading day prior to\nthe date on which you make your offer to the Special Committee.\n1.3 Special Committee Authority. Unless otherwise expressly agreed to in writing by the Special Committee, any and all actions contemplated\nhereby to be taken by the Company shall be taken by the Special Committee on behalf of the Company; provided, however, that any action\ncontemplated hereby to be taken by the Special Committee shall be taken by the Company from and after the dissolution of the Special Committee.\n2. Evaluation Material.\n2.1 Nondisclosure of Evaluation Material. You hereby agree that you shall, and you shall cause your Representatives (other than Approved\nFinancing Sources), to: (i) use the Evaluation Material solely for the purpose of evaluating, negotiating, financing, consummating, and implementing\na possible Transaction and your possible participation in the Transaction, (ii) keep the Evaluation Material strictly confidential in accordance with\nthis letter agreement, and (iii) without the prior written consent of the Special Committee, not disclose any of the Evaluation Material to any person;\nprovided, however, that you may disclose any of the Evaluation Material to (a) your Representatives (including Approved Financing Sources) solely\nfor purposes of evaluating, negotiating, financing, consummating and/or implementing a possible Transaction and your possible participation in the\nTransaction who agree to be bound by the terms hereof to the same extent as if they were parties hereto; provided, however, that, without the Special\nCommittee’s prior consent, you shall not, and you shall cause your Representatives (other than Approved Financing Sources) not to, disclose to any\nof your Approved Financing Sources any Evaluation Material (other than Derivative Information that contains, reflects and is based upon only\nInformation that has already been provided to the Special Committee or its financial advisors, and no other Information) unless such Evaluation\nMaterial has already been provided to the Special Committee or its financial advisors, and (b) as otherwise permitted by Paragraph 2.2 hereof.\n3\n2.2 Compulsory Disclosure. In the event that you or any of your Representatives (other than Approved Financing Sources) receives a request\n(by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose, or is otherwise required by\nlaw, regulation, or regulatory authority or order or any rule of any stock exchange to which you or any of your Representatives is subject (“Law”) to\ndisclose, any of the Evaluation Material, you or such Representative (other than Approved Financing Sources) shall, unless prohibited by Law,\n(i) provide the Company and the Special Committee with prompt written notice of such request or requirement, along with, to the extent applicable,\na copy of the request and the proposed disclosure, the circumstances surrounding such request or requirement, the reason that such disclosure is\nrequired and the time and place such disclosure is expected to be made, in each case with sufficient specificity so that the Company and/or the\nSpecial Committee may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement,\nand (ii) if requested by the Company and/or the Special Committee, assist the Company and/or the Special Committee (in each case, at the\nCompany’s sole expense) in seeking a protective order or other appropriate remedy in response to such request or requirement. Without limiting the\ngenerality of the foregoing, you shall not, and shall cause your Representatives (other than Approved Financing Sources) not to, oppose any action\nby the Company and/or the Special Committee to obtain such a protective order or other remedy. Notwithstanding Paragraph 2.1, if, in the absence\nof a protective order or other remedy or the receipt of a waiver by the Company and the Special Committee, you are, or any of your Representatives\nis, nonetheless, on the advice of counsel, required by Law to disclose any Evaluation Material, you or such Representative may disclose to the\napplicable tribunal or other person only that portion of the Evaluation Material which such counsel advises is required by Law to be disclosed,\nprovided that you, or, if applicable, such Representative, exercise commercially reasonable efforts to continue to preserve, and have such tribunal or\nother person preserve, the confidentiality of such Evaluation Material. Notwithstanding any disclosure of Evaluation Material pursuant to this\nParagraph 2.2, you and your Representatives will continue to be bound by your and their obligations of confidentiality (including, without limitation,\nwith respect to any Evaluation Material disclosed pursuant to this Paragraph 2.2) and other obligations hereunder. Notwithstanding the foregoing,\nyou may make filings (and disclosures required therein) under Section 13(d) of the Exchange Act that are on the advice of counsel required to be\nmade by you or your Representatives without complying with this Paragraph 2.2; provided, that you have provided notice of your intent to make\nsuch filing (along with a reasonable description of the material items that will be disclosed in such filing) to the Special Committee as promptly as\npractical and in any event at least eight (8) hours prior to the filing thereof.\n2.3 Information Request Procedures. You further agree that, without the prior written consent of the Special Committee but subject to\nParagraph 6.2 hereof, all communications from you or your Representatives to the Company regarding any Transaction, including, without\nlimitation, requests for Information, will be submitted only to the Representatives of the Special Committee listed on Annex A hereto or to such\nother person or persons as the Special Committee may direct in writing and, unless expressly directed to the contrary by the Special Committee, not\nto the Company or any of its Representatives. Subject to Paragraph 6.2 hereof and other than with respect to Approved Financing Sources, you agree\nthat you will not, and you will cause\n4\nyour Representatives (other than Approved Financing Sources) not to, engage in any discussions with the Company or any of its suppliers, vendors,\nservice providers, joint venture partners, consultants or lenders regarding any Transaction without the prior consent of the Special Committee.\nNotwithstanding the foregoing and subject to the proviso in Paragraph 2.1(iii)(a), you shall not be prohibited from engaging in any communications\nwith any director of the Company who is also personnel of any Approved Financing Source.\n2.4 Return and Destruction of Evaluation Material. At any time upon the request of the Special Committee for any reason, you will promptly\n(i) deliver to the Special Committee all Evaluation Material (other than Derivative Information) in the possession of you or any of your\nRepresentatives (other than Approved Financing Sources) and (ii) at your election, deliver to the Special Committee or destroy all other Evaluation\nMaterial constituting Derivative Information in your or their possession, in each case without keeping any copies, in whole or part, in any medium\nwhatsoever, thereof. In the event of such a request, you shall deliver to the Special Committee a certificate stating that you have complied with all of\nthe requirements of this Paragraph 2.4. Notwithstanding the return or the destruction of the Evaluation Material or the termination of discussions\nregarding the Transaction, you and your Representatives may retain Evaluation Material as required by Law or internal document retention policies\nsolely for such purposes (and not for the purposes provided for in Paragraph 2.1); provided, that you and your Representatives will continue to be\nbound by your obligations of confidentiality (including, without limitation, with respect to any Evaluation Material destroyed or not returned\npursuant to this Paragraph 2.4) and other obligations hereunder.\n2.5 Accuracy of Evaluation Material. You understand and agree that none of the Company, the Special Committee or any of their respective\nRepresentatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree\nthat none of the Company, the Special Committee or any of their respective Representatives shall have any liability to you or any of your\nRepresentatives relating to or resulting from the use of the Evaluation Material, including, without limitation, for any conclusions that you or any of\nyour Representatives derive from the Evaluation Material. Only those representations or warranties that are made in a final definitive agreement\nproviding for the Transaction, when, as and if executed and delivered by the parties, and subject to such limitations and restrictions as may be\nspecified therein, will have any legal effect.\n2.6 Privileges. The Company does not intend to waive, or to cause any of its Representatives to waive, the attorney-client, attorney work\nproduct or other applicable privilege of the Company or any of its subsidiaries or joint ventures (“Privilege”) by providing any Evaluation Material\nsubject to a Privilege, and any production by the Company or any of its Representatives of such Evaluation Material shall be inadvertent.\nAccordingly, you agree that a production to you or any of your Representatives by the Company or any of its Representatives of Evaluation\nMaterials protected by a Privilege shall not constitute a waiver of any such Privilege by any person, and you agree that, upon request by the\nCompany or any of its Representatives, you will, and you will cause your Representatives (other than Approved Financing Sources) to, immediately\nreturn and/or destroy such inadvertently produced Evaluation Materials.\n5\n2.7 Ownership of Evaluation Material. Nothing herein, nor any disclosure contemplated hereby, shall be deemed to transfer to you or any other\nperson any interest in, or confer in you or any other person any right (including, without limitation, intellectual property right) over, the Evaluation\nMaterial whatsoever beyond those interests and rights expressly provided for in this letter agreement.\n3. Non-Solicitation; Non-Hire.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of one (1) year from the date hereof, you\nwill not, and will cause your Representatives (other than your Approved Financing Sources and third party advisors not taking action on your behalf\nor at your direction) not to, directly or indirectly, without obtaining the prior written consent of the Company and the Special Committee, solicit for\nemployment or employ any of the officers or senior employees of the Company or any of its subsidiaries or joint ventures, other than officers or\nemployees who have ceased to be such prior to your solicitation or employment of them; provided, however, that the foregoing shall not restrict your\nability to conduct generalized searches for officers or employees by use of advertisements in periodicals of general circulation or general\nsolicitations through recruiting agencies, in each case not directed at such officers or employees.\n4. Standstill and Related Provisions.\n4.1 Standstill Provisions. In consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of fifteen\n(15) months from the date hereof (the “Restricted Period”), unless expressly permitted or authorized hereby or in writing by the Special Committee\nto do so, you will not, and you will cause your Representatives (other than Approved Financing Sources and third party advisors not taking action on\nyour behalf or at your direction) not to, directly or indirectly, acting alone or as part of a group: (i) acquire, offer to acquire, or agree to acquire,\ndirectly or indirectly, by purchase or otherwise, any (a) voting or other equity securities or direct or indirect rights to acquire any voting or other\nequity securities of the Company or any of its subsidiaries or joint ventures, or (b) any other securities, rights or interests, including without\nlimitation, options, swaps, derivatives or convertible or other similar instruments, whether real or synthetic, which give you the right to vote or to\ndirect the voting of any voting or equity securities of the Company or any of its subsidiaries or joint ventures; (ii) enter into or agree, offer, propose\nor seek to enter into, or otherwise be involved in or part of, directly or indirectly, any Acquisition Transaction; (iii) make, or in any way participate\nin, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote, or\nseek to advise or influence any person or entity with respect to the voting of, any voting securities of the Company in connection with or related in\nany way to an Acquisition Transaction; (iv) form, join or in any way participate in a group with respect to any voting or other equity securities of the\nCompany or any of its subsidiaries or joint ventures (other than a Permitted Group (as defined below)); (v) seek or propose, alone or in concert with\nothers, to influence or control the management or policies of the Company or any of its subsidiaries or joint ventures in connection with or related in\nany way to an Acquisition Transaction; (vi) directly or indirectly enter into any discussions, negotiations, arrangements or understandings with any\nother person (other than Approved Financing Sources to the extent permitted hereby) with respect to any of the foregoing activities or propose any of\nsuch activities\n6\nto any other person (other than Approved Financing Sources to the extent permitted hereby); (vii) advise, assist, encourage, or act as a financing\nsource for or otherwise invest in any other person who may serve as a financing source in connection with any of the foregoing activities (other than\nApproved Financing Sources); (viii) disclose (except to the extent permitted hereby, to the Company, the Special Committee or their respective\nRepresentatives or Approved Financing Sources) any intention, plan or arrangement inconsistent with any of the foregoing; (ix) request that the\nCompany, the Special Committee or their respective Representatives, directly or indirectly (a) amend or waive any provision of this Paragraph 4.1\n(including this clause (ix)) or (b) otherwise consent to any action inconsistent with any provision of this Paragraph 4.1 (including this clause (ix));\n(x) take any action that might require the Company or its Representatives to make a public announcement regarding any of the activities referred to\nin clauses (i)-(ix) of this Paragraph 4.1 (other than disclosures expressly permitted by this letter agreement); or (xi) agree to take any of the foregoing\nactions; provided, however, that the foregoing shall not restrict your and your Representatives’ ability to (a) take any action, or permit any of your\nRepresentatives to take any action, in (and solely in) your capacity, or the capacity of any such Representative, as a director or officer of the\nCompany, (b) exercise any of your options to purchase common stock of the Company, (c) acquire shares of common stock of the Company or other\nsecurities of the Company by way of distributions of such securities in connection with deferred director compensation, (d) as long as you have\ncomplied and continue to comply with the second sentence of Paragraph 4.3 (which shall not be limited by this clause (d)), submit to the Special\nCommittee one or more confidential proposals regarding a Transaction or (e) have discussions with and among your Representatives with respect to\na proposal for a Transaction, including, to the extent permitted by Paragraph 4.3, to form a group that is a Permitted Group. For the avoidance of\ndoubt, nothing in this letter agreement shall restrict your or your affiliates’ ability to (1) sell or transfer (in whole or in part) or vote any securities of\nthe Company in your sole and absolute discretion or (2) amend your Schedule 13D as legally required (it being understood, however, that this clause\n(2) shall not be construed to permit you to take actions otherwise prohibited by this letter agreement). This letter agreement shall constitute a\n“standstill agreement” for purposes of the definition of “Acquiring Person” as defined in the Rights Agreement, dated as of January 12, 2011, by and\nbetween the Company and Continental Stock Transfer & Trust Company, as Rights Agent.\n4.2 Prohibition on Voting Restrictions. During the Restricted Period, you shall not, and you shall cause your Representatives (other than\nApproved Financing Sources and third party advisors not taking action on your behalf or at your direction) not to, enter into any exclusivity, lock-up\nor other agreement, arrangement or understanding, whether written or oral, with any current or future shareholder of the Company or other person\nthat has the right to vote or direct the voting of voting securities of the Company that is intended or could reasonably be expected to limit, restrict,\nrestrain or otherwise impair in any manner, directly or indirectly, the ability of such person to (i) vote any voting securities of the Company\nbeneficially owned by such person (or with respect to which such person otherwise has the right to vote or to the direct the voting of such voting\nsecurities) in favor of, or (ii) tender any such voting or equity securities of the Company into any offer made in connection with any transaction\ninvolving the Company.\n4.3 Group Formation; Permitted Groups. You acknowledge that you have filed a Schedule 13D with the Securities and Exchange Commission\nin which you disclaim, as of the date of such Schedule 13D, the formation of a group with Oaktree Capital Management, L.P. and\n7\nits funds and accounts under management, Ares Management LLC and its funds under management, and Thomas Boone Pickens, Jr. and beneficial\nownership of shares of common stock of the Company of such persons. You shall not, without the prior written consent of the Special Committee,\njoin or form a group with any person other than one or more Approved Financing Sources. Any group permitted to be formed pursuant to the\nimmediately preceding sentence or with the prior written consent of the Special Committee shall be referred to as a “Permitted Group.” You and the\nCompany each acknowledge that under certain circumstances, the joining or formation of a group by you and other shareholders of the Company\nmay trigger a default or an event of default or other material adverse effect under that certain Credit Agreement (the “Credit Agreement”), dated as\nof April 30, 2010, among the Company, certain subsidiaries of the Company, as guarantors, the lenders party thereto and JPMorgan Chase Bank,\nN.A., as administrative agent. The parties hereto acknowledge that the Company intends to seek to promptly obtain an effective waiver (a “Waiver”)\nunder the Credit Agreement that permits you (together with other shareholders of the Company) to join or form a group without causing a default or\nan event of default or any other material adverse effect under the Credit Agreement. Further, you and the Company each agree to consult with each\nother and keep each other reasonably informed with respect to the pursuit of such Waiver. Notwithstanding the foregoing, the Special Committee\nshall retain the sole right to enter into such Waiver on behalf of the Company.\n4.4 Termination of Standstill and Related Provisions. Notwithstanding the foregoing, if (i) the Company enters into a definitive agreement with\nany person other than you, any of your affiliates or any other person who is a participant in a Permitted Group of which you are also a participant\nthat provides for an Acquisition Transaction that is approved, and recommended to the Company’s shareholders, by the Special Committee, and\n(ii) thereafter you make a Superior Proposal, the effectiveness of Paragraphs 4.1 and 4.2 and the second sentence of Paragraph 4.3 shall terminate\nand the provisions of those paragraphs and sentence shall have no further force and effect.\n5. Financing Sources and Other Interested Persons.\n5.1 Approved Financing Sources. Except for your Representatives, you shall not, and you shall cause your Representatives (other than\nApproved Financing Sources) not to, provide any Evaluation Material to any person except an Approved Financing Source. “Approved Financing\nSource” shall mean (i) any person listed on Annex B hereto, (ii) any person that (a) is an individual or a bona fide private equity firm or other similar\ninstitutional investor, (b) is not a direct or indirect beneficial owner of more than one percent (1%) of the equity securities of the Company or any of\nits subsidiaries or joint ventures, (c) is reasonably expected to provide financing for a potential Transaction in an amount that is less than $50 million\nand (d) the Special Committee does not have any reasonable, good faith reason to object to serving as an Approved Financing Source and (iii) any\nother person expressly approved by the Special Committee as an Approved Financing Source (such consent not to be unreasonably withheld);\nprovided in each case that a person shall be an Approved Financing Source only if such person, the Company and the Special Committee shall have\nentered into a confidentiality agreement. The Company and the Special Committee shall enter into a confidentiality agreement with such potential\nApproved Financing Source in the form set forth on Annex C unless (1) the potential Approved Financing Source desires or insists upon material\nchanges thereto and/or (2) the\n8\nSpecial Committee concludes in good faith that such form of confidentiality agreement is not adequate or appropriate for such purposes as a result of\nany change, event or circumstance occurring or existing after the date hereof, in which case the Special Committee, on behalf of itself and the\nCompany, shall negotiate in good faith in an attempt to reach agreement on terms thereof acceptable to the parties. If the parties propose to enter into\na confidentiality agreement in the form set forth on Annex C, then promptly following your request, or in the case of a confidentiality agreement\nnegotiated among the parties pursuant to the previous sentence, then promptly following agreement between the parties on the terms thereof, the\nCompany and the Special Committee agree to execute such confidentiality agreement; provided that in no event shall the Company or the Special\nCommittee be under any obligation to execute any confidentiality agreement with any potential Approved Financing Source if the sum of the total\naggregate number of shares of capital stock of the Company owned (beneficially or of record) by such potential Approved Financing Source, you,\nyour Approved Financing Sources and any or all members of any group of which you are a member equals or exceeds 29.9% of the outstanding\nshares of capital stock of the Company unless and until the Waiver has been received by the Company and is effective.\n5.2 Financing Arrangements. You agree that without the prior written consent of the Special Committee, you shall not, and you shall cause\nyour Representatives (other than Approved Financing Sources) not to, directly or indirectly, enter into any agreements, arrangements or\nunderstandings, whether written or oral, with any person that provides or contemplates that such person shall, or reasonably could be expected to,\ndirectly or indirectly, provide equity or debt financing for, or otherwise serve as a principal party or investor in, any Transaction except for\nagreements, arrangements or understandings you may enter into in the future with Approved Financing Sources (but in any event subject to the other\nlimitations set forth in this letter agreement, including Paragraph 5.3). You represent and warrant to the Company and the Special Committee that\nneither you nor any of your Representatives (other than Approved Financing Sources) that are acting on your behalf or at your direction have entered\ninto any such agreement, arrangement or any understanding other than those that have been disclosed in writing to the Special Committee or publicly\ndisclosed as of the date hereof.\n5.3 Prohibition on Exclusive Arrangements. You shall not, and you shall cause your Representatives (other than (a) your Approved Financing\nSources and (b) third party advisors not taking action on your behalf or at your direction) not to, enter into any exclusivity, lock-up or other\nagreement, arrangement or understanding, whether written or oral, with any person that is intended or could otherwise reasonably be expected to\nlimit, restrict, restrain or otherwise impair in any manner, directly or indirectly, the ability of such person to provide financing to any other person in\nconnection with any transaction involving the Company; provided, however, that nothing in this sentence shall prohibit you from limiting,\nrestricting, restraining or impairing any person that is providing equity financing to you from providing equity financing to any other person. You\nrepresent and warrant to the Company and the Special Committee that neither you nor any of your Representatives that are acting on your behalf or\nat your direction (other than Approved Financing Sources and third party advisors not taking action on your behalf or at your direction) have entered\ninto any such agreement, arrangement or any understanding as of the date hereof.\n9\n5.4 No Discouragement. You shall not, and you shall cause your Representatives (other than Approved Financing Sources and third party\nadvisors not taking action on your behalf or at your direction) not to, take any action to discourage any person from making any proposal with\nrespect to a Transaction. However, nothing in this letter agreement shall limit in any respect your rights as to the terms, conditions or the\ncontinuation or termination of your employment with the Company or any of its subsidiaries or joint ventures.\n6. Miscellaneous.\n6.1 Compliance with Securities Laws. You understand and agree that you are aware, and that you will advise your Representatives, that the\nfederal and state securities laws prohibit any person who has material, non-public information about a company from purchasing or selling securities\nof such a company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that the\nperson is likely to purchase or sell those securities. You will, and will cause your Representatives (other than Approved Financing Sources and third\nparty advisors not taking action on your behalf or at your direction) to, comply with federal and state securities laws in connection with the receipt of\nEvaluation Material contemplated hereby.\n6.2 Fiduciary Responsibilities. Nothing contained in this letter agreement shall be deemed to limit or expand your rights or obligations in\ndischarging, or restrict your activities in furtherance of, your fiduciary responsibilities as a director of the Company for so long as you shall remain a\ndirector of the Company.\n6.3 Breach. You shall be responsible for any breach of this letter agreement by you or any of your Representatives (other than Approved\nFinancing Sources) of the terms specifically applicable to Representatives, and you agree, at your sole expense, to take all reasonable measures to\navoid any prohibited or unauthorized disclosure or use of the Evaluation Material or other breach of this letter agreement by any of your\nRepresentatives (other than Approved Financing Sources) of the terms specifically applicable to Representatives. The foregoing obligation shall not\nlimit the remedies available to the Company for any such breach of this letter agreement.\n6.4 Process. You agree that unless and until a final definitive written agreement providing for a Transaction has been executed and delivered by\nthe Company and you, none of the Company, the Special Committee or any of their respective Representatives will be under any legal obligation of\nany kind whatsoever with respect to such Transaction by virtue of this letter agreement. You further acknowledge and agree that the Special\nCommittee reserves the right to both reject any and all proposals made by you or your Representatives with regard to a Transaction and/or to\nterminate discussions and negotiations with you or any of your Representatives at any time for any reason or no reason. The Special Committee\nretains the right to determine what Information it will make available to you or any of your Representatives. You also understand and agree that this\nletter agreement does not limit the Company, the Special Committee or any of their respective Representatives from entering into negotiations and\ndiscussions with other parties for a possible transaction in lieu of the Transaction with you and entering into a definitive agreement with respect\nthereto without prior notice to you or any of your Representatives. You also understand and agree that this letter agreement does not limit the\n10\nCompany, the Special Committee or any of their respective Representatives from changing in any way the Company’s or the Special Committee’s\nprocess for considering the Transaction or any transaction in lieu of the Transaction without prior notice to you or any of your Representatives.\n6.5 Notices. All notices, claims, demands and other communications under this Agreement shall be in writing and shall be delivered\npersonally, telecopied or emailed with confirmation of receipt, or by next-day courier to you, the Company or the Special Committee, as applicable,\nat the addresses specified below (or at such other address as shall be specified by a person by like notice; provided that notices of a change of\naddress shall be effective only upon receipt thereof). Any such notice shall be effective upon receipt, if personally delivered, telecopied or emailed,\nor one day after delivery to a courier for next-day delivery.\nIf to you:\nDouglas H. Miller\n12377 Merit Dr., Suite 1700\nDallas, TX 75251\nFacsimile:\n(214) 378-5442\nE-mail:\ndmillerbreakaway@gmail.com\ndsablotny@excoresources.com\nWith a copy to:\nVinson & Elkins LLP\n2001 Ross Avenue, Suite 3700\nDallas, TX 75201\nAttention:\nJeffery A. Chapman\nJohn M. Grand\nFacsimile:\n(212) 999-7797\nE-mail:\njchapman@velaw.com\njgrand@velaw.com\nIf to the Company:\nEXCO Resources, Inc.\nc/o the Special Committee\nc/o Kirkland & Ellis LLP\n601 Lexington Avenue\nNew York, New York 10022\nAttention:\nThomas W. Christopher\nWilliam B. Sorabella\nFacsimile:\n(212) 446-4900\nE-mail:\nthomas.christopher@kirkland.com\nwilliam.sorabella@kirkland.com\nIf to the Special Committee:\nThe Special Committee\nc/o Kirkland & Ellis LLP\n601 Lexington Avenue\nNew York, New York 10022\nAttention:\nThomas W. Christopher\nWilliam B. Sorabella\nFacsimile:\n(212) 446-4900\nE-mail:\nthomas.christopher@kirkland.com\nwilliam.sorabella@kirkland.com\n11\n6.6 Modification and Waiver. This letter agreement may be modified or waived only by a separate writing by the Company, the Special\nCommittee and you expressly so modifying or waiving this letter agreement. It is understood and agreed that no failure or delay by the Company or\nthe Special Committee in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n6.7 Severability. The invalidity or unenforceability of any provision of this letter agreement shall not affect the validity or enforceability of any\nother provisions of this letter agreement. In the event that any of the provisions of this letter agreement shall be held by a court or other tribunal of\ncompetent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be deemed limited or eliminated only to the minimum extent\nnecessary so that this letter agreement shall otherwise remain in full force and effect.\n6.8 Entire Agreement. This letter agreement, together with the other instruments and agreements referenced herein, contains the entire\nagreement between the Company, the Special Committee and you concerning the subject matter hereof. This letter agreement and such instruments\nand agreements shall be in addition to, and shall not limit the effectiveness of any other previous agreement, whether written or oral, that may relate\nto the subject matter hereof, including, without limitation, any agreements entered into, or policies to which you are subject, as an officer of the\nCompany.\n6.9 Remedies. It is further understood and agreed that money damages may not be a sufficient remedy for any breach of this letter agreement\nby you or any of your Representatives (other than Approved Financing Sources) and, in addition to all other remedies that the Company, the Special\nCommittee or any of their respective Representatives may have at law or in equity, the Company, the Special Committee and any of their respective\nRepresentatives shall be entitled to equitable relief, including, without limitation, injunction and specific performance, as a remedy for any such\nbreach and you hereby waive any requirement for the securing or posting of any bond in connection with such remedy.\n6.10 Governing Law; Venue. This letter agreement shall be governed by and construed in accordance with the laws of the State of Texas\nwithout giving effect to the conflicts of law provisions thereof. The parties hereto hereby irrevocably and unconditionally consent to the sole and\nexclusive jurisdiction of, and waive any objection to the laying of venue in, the federal and state courts sitting in Dallas County, Texas (collectively,\nthe “Texas Courts”) for any action, suit or proceeding arising out of or relating to this letter agreement, and agree not to commence any action, suit\nor proceeding related thereto except in a Texas Court. Each of the parties hereto further agrees that service of any process, summons, notice or\ndocument by registered mail to its address set forth above shall be effective service of process for any action, suit or proceeding brought against it in\nany Texas Court.\n6.11 Assignment; Binding Effect. Without the prior consent of the other party, neither party may assign its rights or obligations (in the case of\nthe Company, other than by operation of\n12\nlaw) under this letter agreement to any person. This letter agreement shall be binding upon you and your respective successors and permitted assigns\nand shall inure to the benefit of, and be enforceable by, the Company and its respective successors and permitted assigns.\n6.12 Expenses. All costs and expenses incurred in connection with this letter agreement and the consideration by the parties of the Transaction,\nincluding, without limitation, all fees of law firms, commercial banks, investment banks, accountants, public relations firms, experts and consultants,\nshall be paid by the party incurring such cost or expense.\n6.13 Headings. Headings included in this letter agreement are for the convenience of the parties only and shall be given no substantive or\ninterpretive effect.\n6.14 Counterparts; Signatures. This letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an\noriginal but all of which together shall constitute one and the same instrument. This letter agreement or any counterpart may be executed and\ndelivered by facsimile or electronic transmission copies, each of which shall be deemed to be an original.\n6.15 Term. Except as otherwise specifically provided herein, this letter agreement shall terminate and be of no further force and effect as of the\ndate that is fifteen (15) months following the date hereof; provided, however, that such termination shall not relieve you from your responsibilities in\nrespect of any breach of this letter agreement prior to such termination.\n(Signature page follows)\n13\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nSPECIAL COMMITTEE OF THE BOARD OF\nDIRECTORS OF EXCO RESOURCES, INC.\nBy: /s/ Vincent Cebula\nName: Vincent Cebula\nTitle: Chairman of the Special Committee\nEXCO RESOURCES, INC.\nBy: /s/ William L. Boeing\nName: William L. Boeing\nTitle: Vice President and General Counsel\nAccepted and agreed as of the date first written above:\nDOUGLAS H. MILLER\nBy: /s/ Douglas H. Miller\nName: Douglas H. Miller	EX-99.2 3 dex992.htm CONFIDENTIALITY AGREEMENT\nExhibit 99.2\nCONFIDENTIAL\nEXCO Resources, Inc.\n12377 Merit Drive, Suite 1700\nDallas, Texas 75251\nJanuary 12, 2011\nDouglas H. Miller\nc/o EXCO Resources, Inc.\n12377 Merit Drive, Suite 1700\nDallas, Texas 75251\nDear Mr. Miller:\nIn connection with the consideration of a possible negotiated buyout transaction (the “Transaction”) involving you and EXCO Resources, Inc.,\na Texas corporation (the “Company,” which term shall, for purposes of this letter agreement, include its subsidiaries), the Special Committee of the\nBoard of Directors of the Company formed on November 3, 2010 (the “Special Committee™) is prepared to make available to you, on behalf of the\nCompany, certain information concerning the Company, upon the terms and subject to the conditions set forth in this letter agreement. As a condition\nto such information being furnished to you, you agree to comply with all the terms of this letter agreement.\n1. Definitions.\n1.1 Evaluation Material. The term “Evaluation Material” shall mean all information, data, reports, interpretations, forecasts, business plans and\nrecords, financial or otherwise, whether written, oral, electronic, visual or otherwise, concerning or related to the Company, any of its subsidiaries or\njoint ventures, or any of the businesses, properties, assets, operations, products, services, liabilities, condition (financial or otherwise), employees,\nprospects and/or results of operations of any of the foregoing (whether prepared by the Company, any of its Representatives (as defined below) or\notherwise) that previously has been or may be furnished to you or any of your Representatives by or on behalf of the Company, the Special\nCommittee or any of their respective Representatives, either directly or indirectly through one of your Approved Financing Sources (as defined\nbelow) (collectively, “Information”), as well as all notes, analyses, compilations, summaries, extracts, studies, interpretations or other materials\nprepared by you or any of your Representatives, but only to the extent that the foregoing contain, reflect or are based upon any Information\n(“Derivative Information”). The term “Evaluation Material” shall also be deemed to include, without limitation, the status or terms and conditions of\nany discussions or negotiations taking place concerning a possible Transaction or any similar transaction. The term “Evaluation Material” does not\ninclude information or any portion thereof that (i) is or becomes generally available to the public (other than as a result of a disclosure by you or any\nof your Representatives in violation of this letter agreement or any other obligation of\n1\nconfidentiality to the Company), (ii) was within your possession without being subject to any contractual, legal, fiduciary or other obligation of\nconfidentiality to the Company with respect to such Information prior to it being furnished to you by or on behalf of the Company, the Special\nCommittee or any of their respective Representatives (other than in your capacity as an officer or director of the Company, in which case this clause\n(ii) shall not be applicable), or (iii) becomes available to you on a non-confidential basis from a source other than the Company or its\nRepresentatives (other than in your capacity as an officer or director of the Company, in which case this clause (iii) shall not be applicable);\nprovided, that such source is not actually known by you, after reasonable inquiry, to be bound by a confidentiality obligation (whether by agreement\nor otherwise) to the Company or any of its Representatives (including the Special Committee).\n1.2 Other Definitions. As used in this letter agreement:\n(i) The term “affiliate” shall have the meaning ascribed to such term in Rule 12b-2 promulgated under the Exchange Act;\n(ii) The term “Acquisition Transaction” shall mean (a) any merger, consolidation or other business combination, or liquidation, reorganization,\nor similar transaction, that results in any person or group directly or indirectly owning 50% or more of the voting securities of the Company, (b) the\nacquisition or sale (through tender or exchange offer, issuance or otherwise) of 50% or more of the voting securities of the Company, (c) the sale,\nlease or other actual or effective disposition of 50% or more of the assets of the Company based on the least of the book value or fair market value of\nsuch assets or the percentage of revenues or net income generated by such assets during the 12 months ending on December 31, 2010, or (d) any\ncombination of the foregoing, whether as a single transaction or a series of transactions;\n(iii) The term “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules, regulations and schedules\npromulgated thereunder;\n(iv) The term “Fully Financed” shall mean, when used with respect to an offer, having financing for such offer (a) in an amount sufficient to\npay the purchase price and any transaction fees in connection with, and to refinance any debt that is reasonably expected to become payable upon\nconsummation of, an Acquisition Transaction that constitutes a Superior Proposal and (b) that is evidenced by executed commitment papers and/or\nexecuted definitive financing documentation from one or more bona fide financing sources with aggregate sufficient capital to provide such\nfinancing, which commitment papers and/or documentation contain terms and conditions customary for transactions of this type and size of\ntransaction.\n(v) The term “group” shall have the meaning given to that term (or as that term is used) in Section 13(d)(3) of the Exchange Act;\n(vi) The term “person” shall be broadly interpreted to include any individual, corporation, partnership, limited liability company, group or\nother entity;\n \n(vii) The term “Representatives” shall mean, with respect to any person, such person’s affiliates (including, without limitation, subsidiaries)\nand joint ventures and any of the foregoing persons’ respective directors, officers, employees, agents, representatives and advisors (including,\nwithout limitation, financial advisors, bankers, consultants, agents, counsel and\n2\naccountants) and Approved Financing Sources; provided, however, that, when used with respect to the Company, the Company’s Representatives\nshall not include you or any other director of the Company who is also personnel of any Approved Financing Source, other than when acting in your\nor their capacity as a director or officer of the Company; and\n(viii) The term “Superior Proposal” shall mean, when used with respect to a pending Acquisition Transaction, any Fully Financed, bona fide\nwritten offer to acquire all of the shares of common stock of the Company not already owned by the offeror (or by any other persons acting in\nconcert with the offeror) (a) for cash at a price per share at least $1.00 higher than the price per share being offered in such pending Acquisition\nTransaction, (b) pursuant to a transaction that, taking into account all relevant factors, including without limitation, the source of financing,\nregulatory concerns and other factors, is reasonably likely to be consummated, (c) that is otherwise on customary terms and conditions and (d) that\ncan immediately be accepted by the Special Committee (subject to any legal or other requirements binding upon, or imposed by, the Special\nCommittee, such as the need to evaluate and approve the offer under applicable law). For purposes of determining whether an offer constitutes a\nSuperior Proposal, in the event the consideration being offered in such pending Acquisition Transaction includes any publicly traded equity\nsecurities, those equity securities shall be ascribed a value equal to the volume weighted average of the closing prices of such security on the primary\nsecurities exchange on which such security is traded for the five (5) consecutive trading days ending on and including the second trading day prior to\nthe date on which you make your offer to the Special Committee.\n1.3 Special Committee Authority. Unless otherwise expressly agreed to in writing by the Special Committee, any and all actions contemplated\nhereby to be taken by the Company shall be taken by the Special Committee on behalf of the Company; provided, however, that any action\ncontemplated hereby to be taken by the Special Committee shall be taken by the Company from and after the dissolution of the Special Committee.\n \n2. Evaluation Material.\n2.1 Nondisclosure of Evaluation Material. You hereby agree that you shall, and you shall cause your Representatives (other than Approved\nFinancing Sources), to: (i) use the Evaluation Material solely for the purpose of evaluating, negotiating, financing, consummating, and implementing\na possible Transaction and your possible participation in the Transaction, (ii) keep the Evaluation Material strictly confidential in accordance with\nthis letter agreement, and (iii) without the prior written consent of the Special Committee, not disclose any of the Evaluation Material to any person;\nprovided, however, that you may disclose any of the Evaluation Material to (a) your Representatives (including Approved Financing Sources) solely\nfor purposes of evaluating, negotiating, financing, consummating and/or implementing a possible Transaction and your possible participation in the\nTransaction who agree to be bound by the terms hereof to the same extent as if they were parties hereto; provided, however, that, without the Special\nCommittee’s prior consent, you shall not, and you shall cause your Representatives (other than Approved Financing Sources) not to, disclose to any\nof your Approved Financing Sources any Evaluation Material (other than Derivative Information that contains, reflects and is based upon only\nInformation that has already been provided to the Special Committee or its financial advisors, and no other Information) unless such Evaluation\nMaterial has already been provided to the Special Committee or its financial advisors, and (b) as otherwise permitted by Paragraph 2.2 hereof.\n \n \n3\n2.2 Compulsory Disclosure. In the event that you or any of your Representatives (other than Approved Financing Sources) receives a request\n(by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose, or is otherwise required by\nlaw, regulation, or regulatory authority or order or any rule of any stock exchange to which you or any of your Representatives is subject (“Law”) to\ndisclose, any of the Evaluation Material, you or such Representative (other than Approved Financing Sources) shall, unless prohibited by Law,\n(i) provide the Company and the Special Committee with prompt written notice of such request or requirement, along with, to the extent applicable,\na copy of the request and the proposed disclosure, the circumstances surrounding such request or requirement, the reason that such disclosure is\nrequired and the time and place such disclosure is expected to be made, in each case with sufficient specificity so that the Company and/or the\nSpecial Committee may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement,\nand (ii) if requested by the Company and/or the Special Committee, assist the Company and/or the Special Committee (in each case, at the\nCompany’s sole expense) in seeking a protective order or other appropriate remedy in response to such request or requirement. Without limiting the\ngenerality of the foregoing, you shall not, and shall cause your Representatives (other than Approved Financing Sources) not to, oppose any action\nby the Company and/or the Special Committee to obtain such a protective order or other remedy. Notwithstanding Paragraph 2.1, if, in the absence\nof a protective order or other remedy or the receipt of a waiver by the Company and the Special Committee, you are, or any of your Representatives\nis, nonetheless, on the advice of counsel, required by Law to disclose any Evaluation Material, you or such Representative may disclose to the\napplicable tribunal or other person only that portion of the Evaluation Material which such counsel advises is required by Law to be disclosed,\nprovided that you, or, if applicable, such Representative, exercise commercially reasonable efforts to continue to preserve, and have such tribunal or\nother person preserve, the confidentiality of such Evaluation Material. Notwithstanding any disclosure of Evaluation Material pursuant to this\nParagraph 2.2, you and your Representatives will continue to be bound by your and their obligations of confidentiality (including, without limitation,\nwith respect to any Evaluation Material disclosed pursuant to this Paragraph 2.2) and other obligations hereunder. Notwithstanding the foregoing,\nyou may make filings (and disclosures required therein) under Section 13(d) of the Exchange Act that are on the advice of counsel required to be\nmade by you or your Representatives without complying with this Paragraph 2.2; provided, that you have provided notice of your intent to make\nsuch filing (along with a reasonable description of the material items that will be disclosed in such filing) to the Special Committee as promptly as\npractical and in any event at least eight (8) hours prior to the filing thereof.\n2.3 Information Request Procedures. You further agree that, without the prior written consent of the Special Committee but subject to\nParagraph 6.2 hereof, all communications from you or your Representatives to the Company regarding any Transaction, including, without\nlimitation, requests for Information, will be submitted only to the Representatives of the Special Committee listed on Annex A hereto or to such\nother person or persons as the Special Committee may direct in writing and, unless expressly directed to the contrary by the Special Committee, not\nto the Company or any of its Representatives. Subject to Paragraph 6.2 hereof and other than with respect to Approved Financing Sources, you agree\nthat you will not, and you will cause\nyour Representatives (other than Approved Financing Sources) not to, engage in any discussions with the Company or any of its suppliers, vendors,\nservice providers, joint venture partners, consultants or lenders regarding any Transaction without the prior consent of the Special Committee.\nNotwithstanding the foregoing and subject to the proviso in Paragraph 2.1(iii)(a), you shall not be prohibited from engaging in any communications\nwith any director of the Company who is also personnel of any Approved Financing Source.\n2.4 Return and Destruction of Evaluation Material. At any time upon the request of the Special Committee for any reason, you will promptly\n(i) deliver to the Special Committee all Evaluation Material (other than Derivative Information) in the possession of you or any of your\nRepresentatives (other than Approved Financing Sources) and (ii) at your election, deliver to the Special Committee or destroy all other Evaluation\nMaterial constituting Derivative Information in your or their possession, in each case without keeping any copies, in whole or part, in any medium\nwhatsoever, thereof. In the event of such a request, you shall deliver to the Special Committee a certificate stating that you have complied with all of\nthe requirements of this Paragraph 2.4. Notwithstanding the return or the destruction of the Evaluation Material or the termination of discussions\nregarding the Transaction, you and your Representatives may retain Evaluation Material as required by Law or internal document retention policies\nsolely for such purposes (and not for the purposes provided for in Paragraph 2.1); provided, that you and your Representatives will continue to be\nbound by your obligations of confidentiality (including, without limitation, with respect to any Evaluation Material destroyed or not returned\npursuant to this Paragraph 2.4) and other obligations hereunder.\n2.5 Accuracy of Evaluation Material. You understand and agree that none of the Company, the Special Committee or any of their respective\nRepresentatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree\nthat none of the Company, the Special Committee or any of their respective Representatives shall have any liability to you or any of your\nRepresentatives relating to or resulting from the use of the Evaluation Material, including, without limitation, for any conclusions that you or any of\nyour Representatives derive from the Evaluation Material. Only those representations or warranties that are made in a final definitive agreement\nproviding for the Transaction, when, as and if executed and delivered by the parties, and subject to such limitations and restrictions as may be\nspecified therein, will have any legal effect.\n2.6 Privileges. The Company does not intend to waive, or to cause any of its Representatives to waive, the attorney-client, attorney work\nproduct or other applicable privilege of the Company or any of its subsidiaries or joint ventures (“Privilege”) by providing any Evaluation Material\nsubject to a Privilege, and any production by the Company or any of its Representatives of such Evaluation Material shall be inadvertent.\nAccordingly, you agree that a production to you or any of your Representatives by the Company or any of its Representatives of Evaluation\nMaterials protected by a Privilege shall not constitute a waiver of any such Privilege by any person, and you agree that, upon request by the\nCompany or any of its Representatives, you will, and you will cause your Representatives (other than Approved Financing Sources) to, immediately\nreturn and/or destroy such inadvertently produced Evaluation Materials.\n \n2.7 Ownership of Evaluation Material. Nothing herein, nor any disclosure contemplated hereby, shall be deemed to transfer to you or any other\nperson any interest in, or confer in you or any other person any right (including, without limitation, intellectual property right) over, the Evaluation\nMaterial whatsoever beyond those interests and rights expressly provided for in this letter agreement.\n3. Non-Solicitation; Non-Hire.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of one (1) year from the date hereof, you\nwill not, and will cause your Representatives (other than your Approved Financing Sources and third party advisors not taking action on your behalf\nor at your direction) not to, directly or indirectly, without obtaining the prior written consent of the Company and the Special Committee, solicit for\nemployment or employ any of the officers or senior employees of the Company or any of its subsidiaries or joint ventures, other than officers or\nemployees who have ceased to be such prior to your solicitation or employment of them; provided, however, that the foregoing shall not restrict your\nability to conduct generalized searches for officers or employees by use of advertisements in periodicals of general circulation or general\nsolicitations through recruiting agencies, in each case not directed at such officers or employees.\n4, Standstill and Related Provisions.\n4.1 Standstill Provisions. In consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of fifteen\n(15) months from the date hereof (the “Restricted Period”), unless expressly permitted or authorized hereby or in writing by the Special Committee\nto do so, you will not, and you will cause your Representatives (other than Approved Financing Sources and third party advisors not taking action on\nyour behalf or at your direction) not to, directly or indirectly, acting alone or as part of a group: (i) acquire, offer to acquire, or agree to acquire,\ndirectly or indirectly, by purchase or otherwise, any (a) voting or other equity securities or direct or indirect rights to acquire any voting or other\nequity securities of the Company or any of its subsidiaries or joint ventures, or (b) any other securities, rights or interests, including without\nlimitation, options, swaps, derivatives or convertible or other similar instruments, whether real or synthetic, which give you the right to vote or to\ndirect the voting of any voting or equity securities of the Company or any of its subsidiaries or joint ventures; (ii) enter into or agree, offer, propose\nor seek to enter into, or otherwise be involved in or part of, directly or indirectly, any Acquisition Transaction; (iii) make, or in any way participate\nin, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote, or\nseek to advise or influence any person or entity with respect to the voting of, any voting securities of the Company in connection with or related in\nany way to an Acquisition Transaction; (iv) form, join or in any way participate in a group with respect to any voting or other equity securities of the\nCompany or any of its subsidiaries or joint ventures (other than a Permitted Group (as defined below)); (v) seek or propose, alone or in concert with\nothers, to influence or control the management or policies of the Company or any of its subsidiaries or joint ventures in connection with or related in\nany way to an Acquisition Transaction; (vi) directly or indirectly enter into any discussions, negotiations, arrangements or understandings with any\nother person (other than Approved Financing Sources to the extent permitted hereby) with respect to any of the foregoing activities or propose any of\nsuch activities\nto any other person (other than Approved Financing Sources to the extent permitted hereby); (vii) advise, assist, encourage, or act as a financing\nsource for or otherwise invest in any other person who may serve as a financing source in connection with any of the foregoing activities (other than\nApproved Financing Sources); (viii) disclose (except to the extent permitted hereby, to the Company, the Special Committee or their respective\nRepresentatives or Approved Financing Sources) any intention, plan or arrangement inconsistent with any of the foregoing; (ix) request that the\nCompany, the Special Committee or their respective Representatives, directly or indirectly (a) amend or waive any provision of this Paragraph 4.1\n(including this clause (ix)) or (b) otherwise consent to any action inconsistent with any provision of this Paragraph 4.1 (including this clause (ix));\n(%) take any action that might require the Company or its Representatives to make a public announcement regarding any of the activities referred to\nin clauses (i)-(ix) of this Paragraph 4.1 (other than disclosures expressly permitted by this letter agreement); or (xi) agree to take any of the foregoing\nactions; provided, however, that the foregoing shall not restrict your and your Representatives’ ability to (a) take any action, or permit any of your\nRepresentatives to take any action, in (and solely in) your capacity, or the capacity of any such Representative, as a director or officer of the\nCompany, (b) exercise any of your options to purchase common stock of the Company, (c) acquire shares of common stock of the Company or other\nsecurities of the Company by way of distributions of such securities in connection with deferred director compensation, (d) as long as you have\ncomplied and continue to comply with the second sentence of Paragraph 4.3 (which shall not be limited by this clause (d)), submit to the Special\nCommittee one or more confidential proposals regarding a Transaction or (e) have discussions with and among your Representatives with respect to\na proposal for a Transaction, including, to the extent permitted by Paragraph 4.3, to form a group that is a Permitted Group. For the avoidance of\ndoubt, nothing in this letter agreement shall restrict your or your affiliates’ ability to (1) sell or transfer (in whole or in part) or vote any securities of\nthe Company in your sole and absolute discretion or (2) amend your Schedule 13D as legally required (it being understood, however, that this clause\n(2) shall not be construed to permit you to take actions otherwise prohibited by this letter agreement). This letter agreement shall constitute a\n“standstill agreement” for purposes of the definition of “Acquiring Person” as defined in the Rights Agreement, dated as of January 12, 2011, by and\nbetween the Company and Continental Stock Transfer & Trust Company, as Rights Agent.\n4.2 Prohibition on Voting Restrictions. During the Restricted Period, you shall not, and you shall cause your Representatives (other than\nApproved Financing Sources and third party advisors not taking action on your behalf or at your direction) not to, enter into any exclusivity, lock-up\nor other agreement, arrangement or understanding, whether written or oral, with any current or future shareholder of the Company or other person\nthat has the right to vote or direct the voting of voting securities of the Company that is intended or could reasonably be expected to limit, restrict,\nrestrain or otherwise impair in any manner, directly or indirectly, the ability of such person to (i) vote any voting securities of the Company\nbeneficially owned by such person (or with respect to which such person otherwise has the right to vote or to the direct the voting of such voting\nsecurities) in favor of, or (ii) tender any such voting or equity securities of the Company into any offer made in connection with any transaction\ninvolving the Company.\n4.3 Group Formation; Permitted Groups. You acknowledge that you have filed a Schedule 13D with the Securities and Exchange Commission\nin which you disclaim, as of the date of such Schedule 13D, the formation of a group with Oaktree Capital Management, L.P. and\n7\nits funds and accounts under management, Ares Management LL.C and its funds under management, and Thomas Boone Pickens, Jr. and beneficial\nownership of shares of common stock of the Company of such persons. You shall not, without the prior written consent of the Special Committee,\njoin or form a group with any person other than one or more Approved Financing Sources. Any group permitted to be formed pursuant to the\nimmediately preceding sentence or with the prior written consent of the Special Committee shall be referred to as a “Permitted Group.” You and the\nCompany each acknowledge that under certain circumstances, the joining or formation of a group by you and other shareholders of the Company\nmay trigger a default or an event of default or other material adverse effect under that certain Credit Agreement (the “Credit Agreement”), dated as\nof April 30, 2010, among the Company, certain subsidiaries of the Company, as guarantors, the lenders party thereto and JPMorgan Chase Bank,\nN.A., as administrative agent. The parties hereto acknowledge that the Company intends to seek to promptly obtain an effective waiver (a “Waiver”)\nunder the Credit Agreement that permits you (together with other shareholders of the Company) to join or form a group without causing a default or\nan event of default or any other material adverse effect under the Credit Agreement. Further, you and the Company each agree to consult with each\nother and keep each other reasonably informed with respect to the pursuit of such Waiver. Notwithstanding the foregoing, the Special Committee\nshall retain the sole right to enter into such Waiver on behalf of the Company.\n \n4.4 Termination of Standstill and Related Provisions. Notwithstanding the foregoing, if (i) the Company enters into a definitive agreement with\nany person other than you, any of your affiliates or any other person who is a participant in a Permitted Group of which you are also a participant\nthat provides for an Acquisition Transaction that is approved, and recommended to the Company’s shareholders, by the Special Committee, and\n(ii) thereafter you make a Superior Proposal, the effectiveness of Paragraphs 4.1 and 4.2 and the second sentence of Paragraph 4.3 shall terminate\nand the provisions of those paragraphs and sentence shall have no further force and effect.\n5. Financing Sources and Other Interested Persons.\n \n5.1 Approved Financing Sources. Except for your Representatives, you shall not, and you shall cause your Representatives (other than\nApproved Financing Sources) not to, provide any Evaluation Material to any person except an Approved Financing Source. “Approved Financing\nSource” shall mean (i) any person listed on Annex B hereto, (ii) any person that (a) is an individual or a bona fide private equity firm or other similar\ninstitutional investor, (b) is not a direct or indirect beneficial owner of more than one percent (1%) of the equity securities of the Company or any of\nits subsidiaries or joint ventures, (c) is reasonably expected to provide financing for a potential Transaction in an amount that is less than $50 million\nand (d) the Special Committee does not have any reasonable, good faith reason to object to serving as an Approved Financing Source and (iii) any\nother person expressly approved by the Special Committee as an Approved Financing Source (such consent not to be unreasonably withheld);\nprovided in each case that a person shall be an Approved Financing Source only if such person, the Company and the Special Committee shall have\nentered into a confidentiality agreement. The Company and the Special Committee shall enter into a confidentiality agreement with such potential\nApproved Financing Source in the form set forth on Annex C unless (1) the potential Approved Financing Source desires or insists upon material\nchanges thereto and/or (2) the\nSpecial Committee concludes in good faith that such form of confidentiality agreement is not adequate or appropriate for such purposes as a result of\nany change, event or circumstance occurring or existing after the date hereof, in which case the Special Committee, on behalf of itself and the\nCompany, shall negotiate in good faith in an attempt to reach agreement on terms thereof acceptable to the parties. If the parties propose to enter into\na confidentiality agreement in the form set forth on Annex C, then promptly following your request, or in the case of a confidentiality agreement\nnegotiated among the parties pursuant to the previous sentence, then promptly following agreement between the parties on the terms thereof, the\nCompany and the Special Committee agree to execute such confidentiality agreement; provided that in no event shall the Company or the Special\nCommittee be under any obligation to execute any confidentiality agreement with any potential Approved Financing Source if the sum of the total\naggregate number of shares of capital stock of the Company owned (beneficially or of record) by such potential Approved Financing Source, you,\nyour Approved Financing Sources and any or all members of any group of which you are a member equals or exceeds 29.9% of the outstanding\nshares of capital stock of the Company unless and until the Waiver has been received by the Company and is effective.\n5.2 Financing Arrangements. You agree that without the prior written consent of the Special Committee, you shall not, and you shall cause\nyour Representatives (other than Approved Financing Sources) not to, directly or indirectly, enter into any agreements, arrangements or\nunderstandings, whether written or oral, with any person that provides or contemplates that such person shall, or reasonably could be expected to,\ndirectly or indirectly, provide equity or debt financing for, or otherwise serve as a principal party or investor in, any Transaction except for\nagreements, arrangements or understandings you may enter into in the future with Approved Financing Sources (but in any event subject to the other\nlimitations set forth in this letter agreement, including Paragraph 5.3). You represent and warrant to the Company and the Special Committee that\nneither you nor any of your Representatives (other than Approved Financing Sources) that are acting on your behalf or at your direction have entered\ninto any such agreement, arrangement or any understanding other than those that have been disclosed in writing to the Special Committee or publicly\ndisclosed as of the date hereof.\n \n5.3 Prohibition on Exclusive Arrangements. You shall not, and you shall cause your Representatives (other than (a) your Approved Financing\nSources and (b) third party advisors not taking action on your behalf or at your direction) not to, enter into any exclusivity, lock-up or other\nagreement, arrangement or understanding, whether written or oral, with any person that is intended or could otherwise reasonably be expected to\nlimit, restrict, restrain or otherwise impair in any manner, directly or indirectly, the ability of such person to provide financing to any other person in\nconnection with any transaction involving the Company; provided, however, that nothing in this sentence shall prohibit you from limiting,\nrestricting, restraining or impairing any person that is providing equity financing to you from providing equity financing to any other person. You\nrepresent and warrant to the Company and the Special Committee that neither you nor any of your Representatives that are acting on your behalf or\nat your direction (other than Approved Financing Sources and third party advisors not taking action on your behalf or at your direction) have entered\ninto any such agreement, arrangement or any understanding as of the date hereof.\n \n9\n5.4 No Discouragement. You shall not, and you shall cause your Representatives (other than Approved Financing Sources and third party\nadvisors not taking action on your behalf or at your direction) not to, take any action to discourage any person from making any proposal with\nrespect to a Transaction. However, nothing in this letter agreement shall limit in any respect your rights as to the terms, conditions or the\ncontinuation or termination of your employment with the Company or any of its subsidiaries or joint ventures.\n6. Miscellaneous.\n6.1 Compliance with Securities Laws. You understand and agree that you are aware, and that you will advise your Representatives, that the\nfederal and state securities laws prohibit any person who has material, non-public information about a company from purchasing or selling securities\nof such a company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that the\nperson is likely to purchase or sell those securities. You will, and will cause your Representatives (other than Approved Financing Sources and third\nparty advisors not taking action on your behalf or at your direction) to, comply with federal and state securities laws in connection with the receipt of\nEvaluation Material contemplated hereby.\n6.2 Fiduciary Responsibilities. Nothing contained in this letter agreement shall be deemed to limit or expand your rights or obligations in\ndischarging, or restrict your activities in furtherance of, your fiduciary responsibilities as a director of the Company for so long as you shall remain a\ndirector of the Company.\n6.3 Breach. You shall be responsible for any breach of this letter agreement by you or any of your Representatives (other than Approved\nFinancing Sources) of the terms specifically applicable to Representatives, and you agree, at your sole expense, to take all reasonable measures to\navoid any prohibited or unauthorized disclosure or use of the Evaluation Material or other breach of this letter agreement by any of your\nRepresentatives (other than Approved Financing Sources) of the terms specifically applicable to Representatives. The foregoing obligation shall not\nlimit the remedies available to the Company for any such breach of this letter agreement.\n6.4 Process. You agree that unless and until a final definitive written agreement providing for a Transaction has been executed and delivered by\nthe Company and you, none of the Company, the Special Committee or any of their respective Representatives will be under any legal obligation of\nany kind whatsoever with respect to such Transaction by virtue of this letter agreement. You further acknowledge and agree that the Special\nCommittee reserves the right to both reject any and all proposals made by you or your Representatives with regard to a Transaction and/or to\nterminate discussions and negotiations with you or any of your Representatives at any time for any reason or no reason. The Special Committee\nretains the right to determine what Information it will make available to you or any of your Representatives. You also understand and agree that this\nletter agreement does not limit the Company, the Special Committee or any of their respective Representatives from entering into negotiations and\ndiscussions with other parties for a possible transaction in lieu of the Transaction with you and entering into a definitive agreement with respect\nthereto without prior notice to you or any of your Representatives. You also understand and agree that this letter agreement does not limit the\n10\nCompany, the Special Committee or any of their respective Representatives from changing in any way the Company’s or the Special Committee’s\nprocess for considering the Transaction or any transaction in lieu of the Transaction without prior notice to you or any of your Representatives.\n6.5 Notices. All notices, claims, demands and other communications under this Agreement shall be in writing and shall be delivered\npersonally, telecopied or emailed with confirmation of receipt, or by next-day courier to you, the Company or the Special Committee, as applicable,\nat the addresses specified below (or at such other address as shall be specified by a person by like notice; provided that notices of a change of\naddress shall be effective only upon receipt thereof). Any such notice shall be effective upon receipt, if personally delivered, telecopied or emailed,\nor one day after delivery to a courier for next-day delivery.\nIf to you: Douglas H. Miller\n12377 Merit Dr., Suite 1700\nDallas, TX 75251\nFacsimile: (214) 378-5442\nE-mail: dmillerbreakaway@gmail.com\ndsablotny@excoresources.com\nWith a copy to: Vinson & Elkins LLP\n2001 Ross Avenue, Suite 3700\nDallas, TX 75201\nAttention: Jeffery A. Chapman\nJohn M. Grand\nFacsimile: (212) 999-7797\nE-mail: jchapman@velaw.com\njgrand@velaw.com\nIf to the Company: EXCO Resources, Inc.\nc/o the Special Committee\nc/o Kirkland & Ellis LLP\n601 Lexington Avenue\nNew York, New York 10022\nAttention: Thomas W. Christopher\nWilliam B. Sorabella\nFacsimile: (212) 446-4900\nE-mail: thomas.christopher@kirkland.com\nwilliam.sorabella@kirkland.com\nIf to the Special Committee: The Special Committee\nc/o Kirkland & Ellis LLP\n601 Lexington Avenue\nNew York, New York 10022\nAttention: Thomas W. Christopher\nWilliam B. Sorabella\nFacsimile: (212) 446-4900\nE-mail: thomas.christopher@kirkland.com\nwilliam.sorabella@kirkland.com\n11\n6.6 Modification and Waiver. This letter agreement may be modified or waived only by a separate writing by the Company, the Special\nCommittee and you expressly so modifying or waiving this letter agreement. It is understood and agreed that no failure or delay by the Company or\nthe Special Committee in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n6.7 Severability. The invalidity or unenforceability of any provision of this letter agreement shall not affect the validity or enforceability of any\nother provisions of this letter agreement. In the event that any of the provisions of this letter agreement shall be held by a court or other tribunal of\ncompetent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be deemed limited or eliminated only to the minimum extent\nnecessary so that this letter agreement shall otherwise remain in full force and effect.\n6.8 Entire Agreement. This letter agreement, together with the other instruments and agreements referenced herein, contains the entire\nagreement between the Company, the Special Committee and you concerning the subject matter hereof. This letter agreement and such instruments\nand agreements shall be in addition to, and shall not limit the effectiveness of any other previous agreement, whether written or oral, that may relate\nto the subject matter hereof, including, without limitation, any agreements entered into, or policies to which you are subject, as an officer of the\nCompany.\n6.9 Remedies. It is further understood and agreed that money damages may not be a sufficient remedy for any breach of this letter agreement\nby you or any of your Representatives (other than Approved Financing Sources) and, in addition to all other remedies that the Company, the Special\nCommittee or any of their respective Representatives may have at law or in equity, the Company, the Special Committee and any of their respective\nRepresentatives shall be entitled to equitable relief, including, without limitation, injunction and specific performance, as a remedy for any such\nbreach and you hereby waive any requirement for the securing or posting of any bond in connection with such remedy.\n6.10 Governing Law;_Venue. This letter agreement shall be governed by and construed in accordance with the laws of the State of Texas\nwithout giving effect to the conflicts of law provisions thereof. The parties hereto hereby irrevocably and unconditionally consent to the sole and\nexclusive jurisdiction of, and waive any objection to the laying of venue in, the federal and state courts sitting in Dallas County, Texas (collectively,\nthe “Texas Courts”) for any action, suit or proceeding arising out of or relating to this letter agreement, and agree not to commence any action, suit\nor proceeding related thereto except in a Texas Court. Each of the parties hereto further agrees that service of any process, summons, notice or\ndocument by registered mail to its address set forth above shall be effective service of process for any action, suit or proceeding brought against it in\nany Texas Court.\n6.11 Assignment; Binding Effect. Without the prior consent of the other party, neither party may assign its rights or obligations (in the case of\nthe Company, other than by operation of\n12\nlaw) under this letter agreement to any person. This letter agreement shall be binding upon you and your respective successors and permitted assigns\nand shall inure to the benefit of, and be enforceable by, the Company and its respective successors and permitted assigns.\n6.12 Expenses. All costs and expenses incurred in connection with this letter agreement and the consideration by the parties of the Transaction,\nincluding, without limitation, all fees of law firms, commercial banks, investment banks, accountants, public relations firms, experts and consultants,\nshall be paid by the party incurring such cost or expense.\n6.13 Headings. Headings included in this letter agreement are for the convenience of the parties only and shall be given no substantive or\ninterpretive effect.\n6.14 Counterparts; Signatures. This letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an\noriginal but all of which together shall constitute one and the same instrument. This letter agreement or any counterpart may be executed and\ndelivered by facsimile or electronic transmission copies, each of which shall be deemed to be an original.\n6.15 Term. Except as otherwise specifically provided herein, this letter agreement shall terminate and be of no further force and effect as of the\ndate that is fifteen (15) months following the date hereof; provided, however, that such termination shall not relieve you from your responsibilities in\nrespect of any breach of this letter agreement prior to such termination.\n(Signature page follows)\n13\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon this letter agreement shall become a binding agreement between you and the Company. Accepted and agreed as of the date first written above:\nDOUGLAS H. MILLER\nBy: /s/ Douglas H. Miller\nName: Douglas H. Miller\nSPECIAL COMMITTEE OF THE BOARD OF\nDIRECTORS OF EXCO RESOURCES, INC.\nBy:  /s/ Vincent Cebula\nName: Vincent Cebula\nTitle: Chairman of the Special Committee\nEXCO RESOURCES, INC.\nBy:  /s/ William L. Boeing\nName: William L. Boeing\nTitle: Vice President and General Counsel	EX-99.2 3 dex992.htm CONFIDENTIALITY AGREEMENT\nExhibit 99.2\nCONFIDENTIAL\nEXCO Resources, Inc.\n12377 Merit Drive, Suite 1700\nDallas, Texas 75251\nJanuary 12, 2011\nDouglas H. Miller\nc/o EXCO Resources, Inc.\n12377 Merit Drive, Suite 1700\nDallas, Texas 75251\nDear Mr. Miller:\nIn connection with the consideration of a possible negotiated buyout transaction (the "Transaction") involving you and EXCO Resources, Inc.,\na Texas corporation (the "Company," which term shall, for purposes of this letter agreement, include its subsidiaries), the Special Committee of the\nBoard of Directors of the Company formed on November 3, 2010 (the "Special Committee") is prepared to make available to you, on behalf of the\nCompany, certain information concerning the Company, upon the terms and subject to the conditions set forth in this letter agreement. As a condition\nto such information being furnished to you, you agree to comply with all the terms of this letter agreement.\n1. Definitions.\n1.1\nEvaluation Material. The term "Evaluation Material" shall mean all information, data, reports, interpretations, forecasts, business plans and\nrecords, financial or otherwise, whether written, oral, electronic, visual or otherwise, concerning or related to the Company, any of its subsidiaries\nor\njoint ventures, or any of the businesses, properties, assets, operations, products, services, liabilities, condition (financial or otherwise), employees,\nprospects and/or results of operations of any of the foregoing (whether prepared by the Company, any of its Representatives (as defined below) or\notherwise) that previously has been or may be furnished to you or any of your Representatives by or on behalf of the Company, the Special\nCommittee or any of their respective Representatives, either directly or indirectly through one of your Approved Financing Sources (as defined\nbelow) (collectively, "Information"), as well as all notes, analyses, compilations, summaries, extracts, studies, interpretations or other materials\nprepared by you or any of your Representatives, but only to the extent that the foregoing contain, reflect or are based upon any Information\n("Derivative Information"). The term "Evaluation Material" shall also be deemed to include, without limitation, the status or terms and conditions of\nany discussions or negotiations taking place concerning a possible Transaction or any similar transaction. The term "Evaluation Material" does not\ninclude information or any portion thereof that (i) is or becomes generally available to the public (other than as a result of a disclosure by you or any\nof your Representatives in violation of this letter agreement or any other obligation of\n1\nconfidentiality to the Company), (ii) was within your possession without being subject to any contractual, legal, fiduciary or other obligation of\nconfidentiality to the Company with respect to such Information prior to it being furnished to you by or on behalf of the Company, the Special\nCommittee or any of their respective Representatives (other than in your capacity as an officer or director of the Company, in which case this clause\n(ii) shall not be applicable), or (iii) becomes available to you on a non-confidential basis from a source other than the Company or its\nRepresentatives (other than in your capacity as an officer or director of the Company, in which case this clause (iii) shall not be applicable);\nprovided, that such source is not actually known by you, after reasonable inquiry, to be bound by a confidentiality obligation (whether by agreement\nor otherwise) to the Company or any of its Representatives (including the Special Committee).\n1.2 Other Definitions As used in this letter agreement:\n(i) The term "affiliate" shall have the meaning ascribed to such term in Rule 12b-2 promulgated under the Exchange Act;\n(ii)\nThe term "Acquisition Transaction" shall mean (a) any merger, consolidation or other business combination, or liquidation, reorganization,\nor similar transaction, that results in any person or group directly or indirectly owning 50% or more of the voting securities of the Company, (b) the\nacquisition or sale (through tender or exchange offer, issuance or otherwise) of 50% or more of the voting securities of the Company, (c) the sale,\nlease or other actual or effective disposition of 50% or more of the assets of the Company based on the least of the book value or fair market value of\nsuch assets or the percentage of revenues or net income generated by such assets during the 12 months ending on December 31, 2010, or (d) any\ncombination of the foregoing, whether as a single transaction or a series of transactions;\n(iii) The term "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, and the rules, regulations and schedules\npromulgated thereunder;\n(iv) The term "Fully Financed" shall mean, when used with respect to an offer, having financing for such offer (a) in an amount sufficient to\npay\nthe\npurchase price and any transaction fees in connection with, and to refinance any debt that is reasonably expected to become payable upon\nconsummation of, an Acquisition Transaction that constitutes a Superior Proposal and (b) that is evidenced by executed commitment papers and/or\nexecuted definitive financing documentation from one or more bona fide financing sources with aggregate sufficient capital to provide such\nfinancing, which commitment papers and/or documentation contain terms and conditions customary for transactions of this type and size of\ntransaction.\n(v) The term "group" shall have the meaning given to that term (or as that term is used) in Section 13(d)(3) of the Exchange Act;\n(vi) The term "person" shall be broadly interpreted to include any individual, corporation, partnership, limited liability company, group or\nother entity;\n(vii) The term "Representatives" shall mean, with respect to any person, such person's affiliates (including, without limitation, subsidiaries)\nand joint ventures and any of the foregoing persons' respective directors, officers, employees, agents, representatives and advisors (including,\nwithout limitation, financial advisors, bankers, consultants, agents, counsel and\n2\naccountants) and Approved Financing Sources; provided, however, that, when used with respect to the Company, the Company's Representatives\nshall not include you or any other director of the Company who is also personnel of any Approved Financing Source, other than when acting in your\nor their capacity as a director or officer of the Company; and\n(viii) The term "Superior Proposal" shall mean, when used with respect to a pending Acquisition Transaction, any Fully Financed, bona fide\nwritten offer to acquire all of the shares of common stock of the Company not already owned by the offeror (or by any other\npersons\nacting\nin\nconcert with the offeror) (a) for cash at a price per share at least $1.00 higher than the price per share being offered in such pending Acquisition\nTransaction, (b) pursuant to a transaction that, taking into account all relevant factors, including without limitation, the source of financing,\nregulatory concerns and other factors, is reasonably likely to be consummated, (c) that is otherwise on customary terms and conditions and (d) that\ncan immediately be accepted by the Special Committee (subject to any legal or other requirements binding upon, or imposed by, the Special\nCommittee, such as the need to evaluate and approve the offer under applicable law). For purposes of determining whether an offer constitutes a\nSuperior Proposal, in the event the consideration being offered in such pending Acquisition Transaction includes any publicly traded equity\nsecurities, those equity securities shall be ascribed a value equal to the volume weighted average of the closing prices of such security on the primary\nsecurities exchange on which such security is traded for the five (5) consecutive trading days ending on and including the second trading day prior\nto\nthe date on which you make your offer to the Special Committee.\n1.3 Special Committee Authority.. Unless otherwise expressly agreed to in writing by the Special Committee, any and all actions contemplated\nhereby to be taken by the Company shall be taken by the Special Committee on behalf of the Company; provided, however, that any action\ncontemplated hereby to be taken by the Special Committee shall be taken by the Company from and after the dissolution of the Special Committee.\n2. Evaluation Material.\n2.1 Nondisclosure of Evaluation Material. You hereby agree that you shall, and you shall cause your Representatives (other than Approved\nFinancing Sources), to: (i) use the Evaluation Material solely for the purpose of evaluating, negotiating, financing, consummating, and implementing\na possible Transaction and your possible participation in the Transaction, (ii) keep the Evaluation Material strictly confidential in accordance with\nthis letter agreement, and (iii) without the prior written consent of the Special Committee, not disclose any of the Evaluation Material to any person;\nprovided, however, that you may disclose any of the Evaluation Material to (a) your Representatives (including Approved Financing Sources) solely\nfor purposes of evaluating, negotiating, financing, consummating and/or implementing a possible Transaction and your possible participation in the\nTransaction who agree to be bound by the terms hereof to the same extent as if they were parties hereto; provided, however, that, without the Special\nCommittee's prior consent, you shall not, and you shall cause your Representatives (other than Approved Financing Sources) not to, disclose to any\nof your Approved Financing Sources any Evaluation Material (other than Derivative Information that contains, reflects and is based upon only\nInformation that has already been provided to the Special Committee or its financial advisors, and no other Information) unless such Evaluation\nMaterial has already been provided to the Special Committee or its financial advisors, and (b) as otherwise permitted by Paragraph 2.2 hereof.\n3\n2.2 Compulsory. Disclosure. In the event that you or any of your Representatives (other than Approved Financing Sources) receives a request\n(by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose, or is otherwise required by\nlaw, regulation, or regulatory authority or order or any rule of any stock exchange to which you or any of your Representatives is subject ("Law") to\ndisclose, any of the Evaluation Material, you or such Representative (other than Approved Financing Sources) shall, unless prohibited by Law,\n(i) provide the Company and the Special Committee with prompt written notice of such request or requirement, along with, to the extent applicable,\na copy of the request and the proposed disclosure, the circumstances surrounding such request or requirement, the reason that such disclosure\nis\nrequired and the time and place such disclosure is expected to be made, in each case with sufficient specificity so that the Company and/or the\nSpecial Committee may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement,\nand (ii) if requested by the Company and/or the Special Committee, assist the Company and/or the Special Committee (in each case, at the\nCompany's sole expense) in seeking a protective order or other appropriate remedy in response to such request or requirement. Without limiting the\ngenerality of the foregoing, you shall not, and shall cause your Representatives (other than Approved Financing Sources) not to, oppose any action\nby the Company and/or the Special Committee to obtain such a protective order or other remedy. Notwithstanding Paragraph 2.1, if, in the absence\nof a protective order or other remedy or the receipt of a waiver by the Company and the Special Committee, you are, or any of your Representatives\nis, nonetheless, on the advice of counsel, required by Law to disclose any Evaluation Material, you or such Representative may disclose to the\napplicable tribunal or other person only that portion of the Evaluation Material which such counsel advises is required by Law to be disclosed,\nprovided that you, or, if applicable, such Representative, exercise commercially reasonable efforts to continue to preserve, and have such tribunal or\nother person preserve, the confidentiality of such Evaluation Material. Notwithstanding any disclosure of Evaluation Material pursuant to this\nParagraph 2.2, you and your Representatives will continue to be bound by your and their obligations of confidentiality (including, without limitation,\nwith respect to any Evaluation Material disclosed pursuant to this Paragraph 2.2) and other obligations hereunder. Notwithstanding the foregoing,\nyou may make filings (and disclosures required therein) under Section 13(d) of the Exchange Act that are on the advice of counsel required to\nbe\nmade by you or your Representatives without complying with this Paragraph 2.2; provided, that you have provided notice of your intent to make\nsuch filing (along with a reasonable description of the material items that will be disclosed in such filing) to the Special Committee as promptly\nas\npractical and in any event at least eight (8) hours prior to the filing thereof.\n2.3 Information Request Procedures. You further agree that, without the prior written consent of the Special Committee but subject to\nParagraph 6.2 hereof, all communications from you or your Representatives to the Company regarding any Transaction, including, without\nlimitation, requests for Information, will be submitted only to the Representatives of the Special Committee listed on Annex A hereto or to such\nother person or persons as the Special Committee may direct in writing and, unless expressly directed to the contrary by the Special Committee, not\nto the Company or any of its Representatives. Subject to Paragraph 6.2 hereof and other than with respect to Approved Financing Sources, you agree\nthat you will not, and you will cause\n4\nyour Representatives (other than Approved Financing Sources) not to, engage in any discussions with the Company or any of its suppliers, vendors,\nservice providers, joint venture partners, consultants or lenders regarding any Transaction without the prior consent of the Special Committee.\nNotwithstanding the foregoing and subject to the proviso in Paragraph 2.1(iii)(a) you shall not be prohibited from engaging in any communications\nwith any director of the Company who is also personnel of any Approved Financing Source.\n2.4\nReturn and Destruction of Evaluation Material. At any time upon the request of the Special Committee for any reason, you will promptly\n(i) deliver to the Special Committee all Evaluation Material (other than Derivative Information) in the possession of you or any of your\nRepresentatives (other than Approved Financing Sources) and (ii) at your election, deliver to the Special Committee or destroy all other Evaluation\nMaterial constituting Derivative Information in your or their possession, in each case without keeping any copies, in whole or part, in any medium\nwhatsoever, thereof. In the event of such a request, you shall deliver to the Special Committee a certificate stating that you have complied with all of\nthe requirements of this Paragraph 2.4. Notwithstanding the return or the destruction of the Evaluation Material or the termination of discussions\nregarding the Transaction, you and your Representatives may retain Evaluation Material as required by Law or internal document retention policies\nsolely for such purposes (and not for the purposes provided for in Paragraph 2.1); provided, that you and your Representatives will continue to be\nbound by your obligations of confidentiality (including, without limitation, with respect to any Evaluation Material destroyed or not returned\npursuant to this Paragraph 2.4) and other obligations hereunder.\n2.5 Accuracy. of Evaluation Material. You understand and agree that none of the Company, the Special Committee or any of their respective\nRepresentatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree\nthat none of the Company, the Special Committee or any of their respective Representatives shall have any liability to you or any of your\nRepresentatives relating to or resulting from the use of the Evaluation Material, including, without limitation, for any conclusions that you or any of\nyour Representatives derive from the Evaluation Material. Only those representations or warranties that are made in a final definitive agreement\nproviding for the Transaction, when, as and if executed and delivered by the parties, and subject to such limitations and restrictions as may be\nspecified therein, will have any legal effect.\n2.6 Privileges. The Company does not intend to waive, or to cause any of its Representatives to waive, the attorney-client, attorney work\nproduct or other applicable privilege of the Company or any of its subsidiaries or joint ventures ("Privilege") by providing any Evaluation Material\nsubject to a Privilege, and any production by the Company or any of its Representatives of such Evaluation Material shall be inadvertent.\nAccordingly, you agree that a production to you or any of your Representatives by the Company or any of its Representatives of Evaluation\nMaterials protected by a Privilege shall not constitute a waiver of any such Privilege by any person, and you agree that, upon request by\nthe\nCompany or any of its Representatives, you will, and you will cause your Representatives (other than Approved Financing Sources) to, immediately\nreturn and/or destroy such inadvertently produced Evaluation Materials.\n5\n2.7 Ownership of Evaluation Material. Nothing herein, nor any disclosure contemplated hereby, shall be deemed to transfer to you or any other\nperson any interest in, or confer in you or any other person any right (including, without limitation, intellectual property right) over, the Evaluation\nMaterial whatsoever beyond those interests and rights expressly provided for in this letter agreement.\n3.\nNon-Solicitation; Non-Hire.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of one (1) year from the date hereof, you\nwill not, and will cause your Representatives (other than your Approved Financing Sources and third party advisors not taking action on your behalf\nor at your direction) not to, directly or indirectly, without obtaining the prior written consent of the Company and the Special Committee, solicit for\nemployment or employ any of the officers or senior employees of the Company or any of its subsidiaries or joint ventures, other than officers or\nemployees who have ceased to be such prior to your solicitation or employment of them; provided, however, that the foregoing shall not restrict your\nability to conduct generalized searches for officers or employees by use of advertisements in periodicals of general circulation or general\nsolicitations through recruiting agencies, in each case not directed at such officers or employees.\n4.\nStandstill and Related Provisions.\n4.1 Standstill Provisions. In consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of fifteen\n(15) months from the date hereof (the "Restricted Period"), unless expressly permitted or authorized hereby or in writing by the Special Committee\nto do so, you will not, and you will cause your Representatives (other than Approved Financing Sources and third party advisors not taking action on\nyour behalf or at your direction) not to, directly or indirectly, acting alone or as part of a group: (i) acquire, offer to acquire, or agree to acquire,\ndirectly or indirectly, by purchase or otherwise, any (a) voting or other equity securities or direct or indirect rights to acquire any voting or other\nequity securities of the Company or any of its subsidiaries or joint ventures, or (b) any other securities, rights or interests, including without\nlimitation, options, swaps, derivatives or convertible or other similar instruments, whether real or synthetic, which give you the right to vote or to\ndirect the voting of any voting or equity securities of the Company or any of its subsidiaries or joint ventures; (ii) enter into or agree, offer, propose\nor seek to enter into, or otherwise be involved in or part of, directly or indirectly, any Acquisition Transaction; (iii) make, or in any way participate\nin, directly or indirectly, any "solicitation" of "proxies" (as such terms are used in the rules of the Securities and Exchange Commission) to vote, or\nseek to advise or influence any person or entity with respect to the voting of, any voting securities of the Company in connection with or related\nin\nany way to an Acquisition Transaction; (iv) form, join or in any way participate in a group with respect to any voting or other equity securities of the\nCompany or any of its subsidiaries or joint ventures (other than a Permitted Group (as defined below)); (v) seek or propose, alone or in concert with\nothers, to influence or control the management or policies of the Company or any of its subsidiaries or joint ventures in connection with or related in\nany way to an Acquisition Transaction; (vi) directly or indirectly enter into any discussions, negotiations, arrangements or understandings with any\nother person (other than Approved Financing Sources to the extent permitted hereby) with respect to any of the foregoing activities or propose any\nof\nsuch activities\n6\nto any other person (other than Approved Financing Sources to the extent permitted hereby); (vii) advise, assist, encourage, or act as a financing\nsource for or otherwise invest in any other person who may serve as a financing source in connection with any of the foregoing activities (other than\nApproved Financing Sources); (viii) disclose (except to the extent permitted hereby, to the Company, the Special Committee or their respective\nRepresentatives or Approved Financing Sources) any intention, plan or arrangement inconsistent with any of the foregoing; (ix) request that the\nCompany, the Special Committee or their respective Representatives, directly or indirectly (a) amend or waive any provision of this Paragraph 4.1\n(including this clause (ix)) or (b) otherwise consent to any action inconsistent with any provision of this Paragraph 4.1 (including this clause (ix));\n(x) take any action that might require the Company or its Representatives to make a public announcement regarding any of the activities referred\nto\nin clauses (i)-(ix) of this Paragraph 4.1 (other than disclosures expressly permitted by this letter agreement); or (xi) agree to take any of the foregoing\nactions; provided, however, that the foregoing shall not restrict your and your Representatives' ability to (a) take any action, or permit any of\nyour\nRepresentatives to take any action, in (and solely in) your capacity, or the capacity of any such Representative, as a director or officer of the\nCompany, (b) exercise any of your options to purchase common stock of the Company, (c) acquire shares of common stock of the Company or other\nsecurities of the Company by way of distributions of such securities in connection with deferred director compensation, (d) as long as you have\ncomplied and continue to comply with the second sentence of Paragraph 4.3 (which shall not be limited by this clause (d)), submit to the Special\nCommittee one or more confidential proposals regarding a Transaction or (e) have discussions with and among your Representatives with respect\nto\na proposal for a Transaction, including, to the extent permitted by Paragraph 4.3, to form a group that is a Permitted Group. For the avoidance\nof\ndoubt, nothing in this letter agreement shall restrict your or your affiliates' ability to (1) sell or transfer (in whole or in part) or vote any securities\nof\nthe Company in your sole and absolute discretion or (2) amend your Schedule 13D as legally required (it being understood, however, that this clause\n(2) shall not be construed to permit you to take actions otherwise prohibited by this letter agreement). This letter agreement shall constitute a\n"standstill agreement" for purposes of the definition of "Acquiring Person" as defined in the Rights Agreement, dated as of January 12, 2011, by and\nbetween the Company and Continental Stock Transfer & Trust Company, as Rights Agent.\n4.2 Prohibition on Voting Restrictions. During the Restricted Period, you shall not, and you shall cause your Representatives (other than\nApproved Financing Sources and third party advisors not taking action on your behalf or at your direction) not to, enter into any exclusivity,\nlock-up\nor other agreement, arrangement or understanding, whether written or oral, with any current or future shareholder of the Company or other person\nthat has the right to vote or direct the voting of voting securities of the Company that is intended or could reasonably be expected to limit, restrict,\nrestrain or otherwise impair in any manner, directly or indirectly, the ability of such person to (i) vote any voting securities of the Company\nbeneficially owned by such person (or with respect to which such person otherwise has the right to vote or to the direct the voting of such voting\nsecurities) in favor of, or (ii) tender any such voting or equity securities of the Company into any offer made in connection with any transaction\ninvolving the Company.\n4.3 Group Formation; Permitted Groups. You acknowledge that you have filed a Schedule 13D with the Securities and Exchange Commission\nin\nwhich you disclaim, as of the date of such Schedule 13D, the formation of a group with Oaktree Capital Management, L.P. and\n7\nits funds and accounts under management, Ares Management LLC and its funds under management, and Thomas Boone Pickens, Jr. and beneficial\nownership of shares of common stock of the Company of such persons. You shall not, without the prior written consent of the Special Committee,\njoin or form a group with any person other than one or more Approved Financing Sources. Any group permitted to be formed pursuant to the\nimmediately preceding sentence or with the prior written consent of the Special Committee shall be referred to as a "Permitted Group." You and the\nCompany each acknowledge that under certain circumstances, the joining or formation of a group by you and other shareholders of the Company\nmay trigger a default or an event of default or other material adverse effect under that certain Credit Agreement (the "Credit Agreement"), dated as\nof April 30, 2010, among the Company, certain subsidiaries of the Company, as guarantors, the lenders party thereto and JPMorgan Chase Bank,\nN.A., as administrative agent. The parties hereto acknowledge that the Company intends to seek to promptly obtain an effective waiver (a "Waiver")\nunder the Credit Agreement that permits you (together with other shareholders of the Company) to join or form a group without causing a default or\nan event of default or any other material adverse effect under the Credit Agreement. Further, you and the Company each agree to consult with each\nother and keep each other reasonably informed with respect to the pursuit of such Waiver. Notwithstanding the foregoing, the Special Committee\nshall retain the sole right to enter into such Waiver on behalf of the Company.\n4.4 Termination of Standstill and Related Provisions. Notwithstanding the foregoing, if (i) the Company enters into a definitive agreement with\nany person other than you, any of your affiliates or any other person who is a participant in a Permitted Group of which you are also a participant\nthat provides for an Acquisition Transaction that is approved, and recommended to the Company's shareholders, by the Special Committee, and\n(ii) thereafter you make a Superior Proposal, the effectiveness of Paragraphs 4.1 and 4.2 and the second sentence of Paragraph 4.3 shall terminate\nand the provisions of those paragraphs and sentence shall have no further force and effect.\n5.\nFinancing Sources and Other Interested Persons.\n5.1 Approved Financing Sources. Except for your Representatives, you shall not, and you shall cause your Representatives (other than\nApproved Financing Sources) not to, provide any Evaluation Material to any person except an Approved Financing Source. "Approved Financing\nSource" shall mean (i) any person listed on Annex B hereto, (ii) any person that (a) is an individual or a bona fide private equity firm or other similar\ninstitutional investor, (b) is not a direct or indirect beneficial owner of more than one percent (1%) of the equity securities of the Company or any of\nits subsidiaries or joint ventures, (c) is reasonably expected to provide financing for a potential Transaction in an amount that is less than $50 million\nand (d) the Special Committee does not have any reasonable, good faith reason to object to serving as an Approved Financing Source and (iii)\nany\nother person expressly approved by the Special Committee as an Approved Financing Source (such consent not to be unreasonably withheld);\nprovided in each case that a person shall be an Approved Financing Source only if such person, the Company and the Specia Committee shall have\nentered into a confidentiality agreement. The Company and the Special Committee shall enter into a confidentiality agreement with such potential\nApproved Financing Source in the form set forth on Annex C unless (1) the potential Approved Financing Source desires or insists upon material\nchanges thereto and/or (2) the\n8\nSpecial Committee concludes in good faith that such form of confidentiality agreement is not adequate or appropriate for such purposes as a result of\nany change, event or circumstance occurring or existing after the date hereof, in which case the Special Committee, on behalf of itself and the\nCompany, shall negotiate in good faith in an attempt to reach agreement on terms thereof acceptable to the parties. If the parties propose to enter into\na confidentiality agreement in the form set forth on Annex C, then promptly following your request, or in the case of a confidentiality agreement\nnegotiated among the parties pursuant to the previous sentence, then promptly following agreement between the parties on the terms thereof, the\nCompany and the Special Committee agree to execute such confidentiality agreement; provided that in no event shall the Company or the Special\nCommittee be under any obligation to execute any confidentiality agreement with any potential Approved Financing Source if the sum of the total\naggregate number of shares of capital stock of the Company owned (beneficially or of record) by such potential Approved Financing Source, you,\nyour Approved Financing Sources and any or all members of any group of which you are a member equals or exceeds 29.9% of the outstanding\nshares of capital stock of the Company unless and until the Waiver has been received by the Company and is effective.\n5.2 Financing Arrangements. You agree that without the prior written consent of the Special Committee, you shall not, and you shall cause\nyour\nRepresentatives (other than Approved Financing Sources) not to, directly or indirectly, enter into any agreements, arrangements or\nunderstandings, whether written or oral, with any person that provides or contemplates that such person shall, or reasonably could be expected to,\ndirectly or indirectly, provide equity or debt financing for, or otherwise serve as a principal party or investor in, any Transaction except for\nagreements, arrangements or understandings you may enter into in the future with Approved Financing Sources (but in any event subject to the other\nlimitations set forth in this letter agreement, including Paragraph 5.3). You represent and warrant to the Company and the Special Committee that\nneither you nor any of your Representatives (other than Approved Financing Sources) that are acting on your behalf or at your direction have entered\ninto any such agreement, arrangement or any understanding other than those that have been disclosed in writing to the Special Committee or publicly\ndisclosed as of the date hereof.\n5.3 Prohibition on Exclusive Arrangements. You shall not, and you shall cause your Representatives (other than (a) your Approved Financing\nSources and (b) third party advisors not taking action on your behalf or at your direction) not to, enter into any exclusivity, lock-up or other\nagreement, arrangement or understanding, whether written or oral, with any person that is intended or could otherwise reasonably be expected\nto\nlimit, restrict, restrain or otherwise impair in any manner, directly or indirectly, the ability of such person to provide financing to any other person in\nconnection with any transaction involving the Company; provided, however, that nothing in this sentence shall prohibit you from limiting,\nrestricting, restraining or impairing any person that is providing equity financing to you from providing equity financing to any other person. You\nrepresent and warrant to the Company and the Special Committee that neither you nor any of your Representatives that are acting on your behalf\nor\nat your direction (other than Approved Financing Sources and third party advisors not taking action on your behalf or at your direction) have entered\ninto any such agreement, arrangement or any understanding as of the date hereof.\n9\n5.4 No Discouragement. You shall not, and you shall cause your Representatives (other than Approved Financing Sources and third party\nadvisors not taking action on your behalf or at your direction) not to, take any action to discourage any person from making any proposal with\nrespect to a Transaction. However, nothing in this letter agreement shall limit in any respect your rights as to the terms, conditions or the\ncontinuation or termination of your employment with the Company or any of its subsidiaries or joint ventures.\n6. Miscellaneous.\n6.1 Compliance with Securities Laws. You understand and agree that you are aware, and that you will advise your Representatives, that the\nfederal and state securities laws prohibit any person who has material, non-public information about a company from purchasing or selling securities\nof such a company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that the\nperson is likely to purchase or sell those securities. You will, and will cause your Representatives (other than Approved Financing Sources and third\nparty advisors not taking action on your behalf or at your direction) to, comply with federal and state securities laws in connection with the receipt of\nEvaluation Material contemplated hereby.\n6.2 Fiduciary. Responsibilities. Nothing contained in this letter agreement shall be deemed to limit or expand your rights or obligations in\ndischarging, or restrict your activities in furtherance of, your fiduciary responsibilities as a director of the Company for so long as you shall remain\na\ndirector of the Company.\n6.3 Breach. You shall be responsible for any breach of this letter agreement by you or any of your Representatives (other than Approved\nFinancing Sources) of the terms specifically applicable to Representatives, and you agree, at your sole expense, to take all reasonable measures\nto\navoid any prohibited or unauthorized disclosure or use of the Evaluation Material or other breach of this letter agreement by any of your\nRepresentatives (other than Approved Financing Sources) of the terms specifically applicable to Representatives. The foregoing obligation shall not\nlimit the remedies available to the Company for any such breach of this letter agreement.\n6.4 Process. You agree that unless and until a final definitive written agreement providing for a Transaction has been executed and delivered by\nthe Company and you, none of the Company, the Special Committee or any of their respective Representatives will be under any legal obligation of\nany\nkind\nwhatsoever with respect to such Transaction by virtue of this letter agreement. You further acknowledge and agree that the Special\nCommittee reserves the right to both reject any and all proposals made by you or your Representatives with regard to a Transaction and/or\nto\nterminate discussions and negotiations with you or any of your Representatives at any time for any reason or no reason. The Special Committee\nretains\nthe\nright\nto\ndetermine\nwhat\nInformation\nit\nwill\nmake\navailable\nto\nyou\nor\nany\nof\nyour\nRepresentatives.\nYou\nalso\nunderstand\nand\nagree\nthat\nthis\nletter agreement does not limit the Company, the Special Committee or any of their respective Representatives from entering into negotiations and\ndiscussions with other parties for a possible transaction in lieu of the Transaction with you and entering into a definitive agreement with respect\nthereto without prior notice to you or any of your Representatives. You also understand and agree that this letter agreement does not limit the\n10\nCompany, the Special Committee or any of their respective Representatives from changing in any way the Company's or the Special Committee's\nprocess for considering the Transaction or any transaction in lieu of the Transaction without prior notice to you or any of your Representatives.\n6.5 Notices. All notices, claims, demands and other communications under this Agreement shall be in writing and shall be delivered\npersonally, telecopied or emailed with confirmation of receipt, or by next-day courier to you, the Company or the Special Committee, as applicable,\nat the addresses specified below (or at such other address as shall be specified by a person by like notice; provided that notices of a change of\naddress shall be effective only upon receipt thereof). Any such notice shall be effective upon receipt, if personally delivered, telecopied or emailed,\nor one day after delivery to a courier for next-day delivery.\nIf to you:\nDouglas H. Miller\n12377 Merit Dr., Suite 1700\nDallas, TX 75251\nFacsimile:\n(214) 378-5442\nE-mail:\ndmillerbreakaway@gmail.com\ndsablotny@excoresources.com\nWith a copy to:\nVinson & Elkins LLP\n2001 Ross Avenue, Suite 3700\nDallas, TX 75201\nAttention:\nJeffery A. Chapman\nJohn M. Grand\nFacsimile:\n(212) 999-7797\nE-mail:\njchapman@velaw.com\njgrand@velaw.com\nIf to the Company:\nEXCO Resources, Inc.\nc/o the Special Committee\nc/o Kirkland & Ellis LLP\n601 Lexington Avenue\nNew York, New York 10022\nAttention:\nThomas W. Christopher\nWilliam B. Sorabella\nFacsimile:\n(212) 446-4900\nE-mail:\nthomas.christopher@kirkland.com\nwilliam.sorabella@kirkland.com\nIf to the Special Committee:\nThe Special Committee\nc/o Kirkland & Ellis LLP\n601 Lexington Avenue\nNew York, New York 10022\nAttention:\nThomas W. Christopher\nWilliam B. Sorabella\nFacsimile:\n(212) 446-4900\nE-mail\nthomas.christopher@kirkland.com\nwilliam.sorabella@kirkland.com\n11\n6.6 Modification and Waiver. This letter agreement may be modified or waived only by a separate writing by the Company, the Special\nCommittee and you expressly so modifying or waiving this letter agreement. It is understood and agreed that no failure or delay by the Company\nor\nthe Special Committee in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n6.7\nSeverability..\nThe invalidity or unenforceability of any provision of this letter agreement shall not affect the validity or enforceability\nof\nany\nother provisions of this letter agreement. In the event that any of the provisions of this letter agreement shall be held by a court or other tribunal of\ncompetent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be deemed limited or eliminated only to the minimum extent\nnecessary so that this letter agreement shall otherwise remain in full force and effect.\n6.8 Entire Agreement. This letter agreement, together with the other instruments and agreements referenced herein, contains the entire\nagreement between the Company, the Special Committee and you concerning the subject matter hereof. This letter agreement and such instruments\nand agreements shall be in addition to, and shall not limit the effectiveness of any other previous agreement, whether written or oral, that may relate\nto the subject matter hereof, including, without limitation, any agreements entered into, or policies to which you are subject, as an officer of the\nCompany.\n6.9 Remedies. It is further understood and agreed that money damages may not be a sufficient remedy for any breach of this letter agreement\nby\nyou or any of your Representatives (other than Approved Financing Sources) and, in addition to all other remedies that the Company,\nthe\nSpecial\nCommittee or any of their respective Representatives may have at law or in equity, the Company, the Special Committee and any of their respective\nRepresentatives shall be entitled to equitable relief, including, without limitation, injunction and specific performance, as a remedy for any such\nbreach and you hereby waive any requirement for the securing or posting of any bond in connection with such remedy.\n6.10 Governing Law; Venue. This letter agreement shall be governed by and construed in accordance with the laws of the State of Texas\nwithout giving effect to the conflicts of law provisions thereof. The parties hereto hereby irrevocably and unconditionally consent to the sole and\nexclusive jurisdiction of, and waive any objection to the laying of venue in, the federal and state courts sitting in Dallas County, Texas (collectively,\nthe "Texas Courts") for any action, suit or proceeding arising out of or relating to this letter agreement, and agree not to commence any action, suit\nor proceeding related thereto except in a Texas Court. Each of the parties hereto further agrees that service of any process, summons, notice or\ndocument by registered mail to its address set forth above shall be effective service of process for any action, suit or proceeding brought against it\nin\nany Texas Court.\n6.11 Assignment; Binding Effect. Without the prior consent of the other party, neither party may assign its rights or obligations (in the case of\nthe Company, other than by operation of\n12\nlaw)\nunder this letter agreement to any person. This letter agreement shall be binding upon you and your respective successors and permitted assigns\nand shall inure to the benefit of, and be enforceable by, the Company and its respective successors and permitted assigns.\n6.12 Expenses. All costs and expenses incurred in connection with this letter agreement and the consideration by the parties of the Transaction,\nincluding, without limitation, all fees of law firms, commercial banks, investment banks, accountants, public relations firms, experts and consultants,\nshall be paid by the party incurring such cost or expense.\n6.13 Headings. Headings included in this letter agreement are for the convenience of the parties only and shall be given no substantive or\ninterpretive effect.\n6.14 Counterparts; Signatures. This letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an\noriginal but all of which together shall constitute one and the same instrument. This letter agreement or any counterpart may be executed and\ndelivered by facsimile or electronic transmission copies, each of which shall be deemed to be an original.\n6.15 Term. Except as otherwise specifically provided herein, this letter agreement shall terminate and be of no further force and effect as of the\ndate that is fifteen (15) months following the date hereof; provided, however that such termination shall not relieve you from your responsibilities in\nrespect of any breach of this letter agreement prior to such termination.\n(Signature page follows)\n13\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nSPECIAL COMMITTEE OF THE BOARD OF\nDIRECTORS OF EXCO RESOURCES, INC.\nBy:\n/s/ Vincent Cebula\nName: Vincent Cebula\nTitle: Chairman of the Special Committee\nEXCO RESOURCES, INC.\nBy:\n/s/ William L. Boeing\nName: William L. Boeing\nTitle: Vice President and General Counsel\nAccepted and agreed as of the date first written above:\nDOUGLAS H. MILLER\nBy:\n/s/ Douglas H. Miller\nName: Douglas H. Miller	EX-99.2 3 dex992.htm CONFIDENTIALITY AGREEMENT\nExhibit 99.2\nCONFIDENTIAL\nEXCO Resources, Inc.\n12377 Merit Drive, Suite 1700\nDallas, Texas 75251\nJanuary 12, 2011\nDouglas H. Miller\nc/o EXCO Resources, Inc.\n12377 Merit Drive, Suite 1700\nDallas, Texas 75251\nDear Mr. Miller:\nIn connection with the consideration of a possible negotiated buyout transaction (the “Transaction”) involving you and EXCO Resources, Inc.,\na Texas corporation (the “Company,” which term shall, for purposes of this letter agreement, include its subsidiaries), the Special Committee of the\nBoard of Directors of the Company formed on November 3, 2010 (the “Special Committee”) is prepared to make available to you, on behalf of the\nCompany, certain information concerning the Company, upon the terms and subject to the conditions set forth in this letter agreement. As a condition\nto such information being furnished to you, you agree to comply with all the terms of this letter agreement.\n1. Definitions.\n1.1 Evaluation Material. The term “Evaluation Material” shall mean all information, data, reports, interpretations, forecasts, business plans and\nrecords, financial or otherwise, whether written, oral, electronic, visual or otherwise, concerning or related to the Company, any of its subsidiaries or\njoint ventures, or any of the businesses, properties, assets, operations, products, services, liabilities, condition (financial or otherwise), employees,\nprospects and/or results of operations of any of the foregoing (whether prepared by the Company, any of its Representatives (as defined below) or\notherwise) that previously has been or may be furnished to you or any of your Representatives by or on behalf of the Company, the Special\nCommittee or any of their respective Representatives, either directly or indirectly through one of your Approved Financing Sources (as defined\nbelow) (collectively, “Information”), as well as all notes, analyses, compilations, summaries, extracts, studies, interpretations or other materials\nprepared by you or any of your Representatives, but only to the extent that the foregoing contain, reflect or are based upon any Information\n(“Derivative Information”). The term “Evaluation Material” shall also be deemed to include, without limitation, the status or terms and conditions of\nany discussions or negotiations taking place concerning a possible Transaction or any similar transaction. The term “Evaluation Material” does not\ninclude information or any portion thereof that (i) is or becomes generally available to the public (other than as a result of a disclosure by you or any\nof your Representatives in violation of this letter agreement or any other obligation of\n1\nconfidentiality to the Company), (ii) was within your possession without being subject to any contractual, legal, fiduciary or other obligation of\nconfidentiality to the Company with respect to such Information prior to it being furnished to you by or on behalf of the Company, the Special\nCommittee or any of their respective Representatives (other than in your capacity as an officer or director of the Company, in which case this clause\n(ii) shall not be applicable), or (iii) becomes available to you on a non-confidential basis from a source other than the Company or its\nRepresentatives (other than in your capacity as an officer or director of the Company, in which case this clause (iii) shall not be applicable);\nprovided, that such source is not actually known by you, after reasonable inquiry, to be bound by a confidentiality obligation (whether by agreement\nor otherwise) to the Company or any of its Representatives (including the Special Committee).\n1.2 Other Definitions. As used in this letter agreement:\n(i) The term “affiliate” shall have the meaning ascribed to such term in Rule 12b-2 promulgated under the Exchange Act;\n(ii) The term “Acquisition Transaction” shall mean (a) any merger, consolidation or other business combination, or liquidation, reorganization,\nor similar transaction, that results in any person or group directly or indirectly owning 50% or more of the voting securities of the Company, (b) the\nacquisition or sale (through tender or exchange offer, issuance or otherwise) of 50% or more of the voting securities of the Company, (c) the sale,\nlease or other actual or effective disposition of 50% or more of the assets of the Company based on the least of the book value or fair market value of\nsuch assets or the percentage of revenues or net income generated by such assets during the 12 months ending on December 31, 2010, or (d) any\ncombination of the foregoing, whether as a single transaction or a series of transactions;\n(iii) The term “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules, regulations and schedules\npromulgated thereunder;\n(iv) The term “Fully Financed” shall mean, when used with respect to an offer, having financing for such offer (a) in an amount sufficient to\npay the purchase price and any transaction fees in connection with, and to refinance any debt that is reasonably expected to become payable upon\nconsummation of, an Acquisition Transaction that constitutes a Superior Proposal and (b) that is evidenced by executed commitment papers and/or\nexecuted definitive financing documentation from one or more bona fide financing sources with aggregate sufficient capital to provide such\nfinancing, which commitment papers and/or documentation contain terms and conditions customary for transactions of this type and size of\ntransaction.\n(v) The term “group” shall have the meaning given to that term (or as that term is used) in Section 13(d)(3) of the Exchange Act;\n(vi) The term “person” shall be broadly interpreted to include any individual, corporation, partnership, limited liability company, group or\nother entity;\n(vii) The term “Representatives” shall mean, with respect to any person, such person’s affiliates (including, without limitation, subsidiaries)\nand joint ventures and any of the foregoing persons’ respective directors, officers, employees, agents, representatives and advisors (including,\nwithout limitation, financial advisors, bankers, consultants, agents, counsel and\n2\naccountants) and Approved Financing Sources; provided, however, that, when used with respect to the Company, the Company’s Representatives\nshall not include you or any other director of the Company who is also personnel of any Approved Financing Source, other than when acting in your\nor their capacity as a director or officer of the Company; and\n(viii) The term “Superior Proposal” shall mean, when used with respect to a pending Acquisition Transaction, any Fully Financed, bona fide\nwritten offer to acquire all of the shares of common stock of the Company not already owned by the offeror (or by any other persons acting in\nconcert with the offeror) (a) for cash at a price per share at least $1.00 higher than the price per share being offered in such pending Acquisition\nTransaction, (b) pursuant to a transaction that, taking into account all relevant factors, including without limitation, the source of financing,\nregulatory concerns and other factors, is reasonably likely to be consummated, (c) that is otherwise on customary terms and conditions and (d) that\ncan immediately be accepted by the Special Committee (subject to any legal or other requirements binding upon, or imposed by, the Special\nCommittee, such as the need to evaluate and approve the offer under applicable law). For purposes of determining whether an offer constitutes a\nSuperior Proposal, in the event the consideration being offered in such pending Acquisition Transaction includes any publicly traded equity\nsecurities, those equity securities shall be ascribed a value equal to the volume weighted average of the closing prices of such security on the primary\nsecurities exchange on which such security is traded for the five (5) consecutive trading days ending on and including the second trading day prior to\nthe date on which you make your offer to the Special Committee.\n1.3 Special Committee Authority. Unless otherwise expressly agreed to in writing by the Special Committee, any and all actions contemplated\nhereby to be taken by the Company shall be taken by the Special Committee on behalf of the Company; provided, however, that any action\ncontemplated hereby to be taken by the Special Committee shall be taken by the Company from and after the dissolution of the Special Committee.\n2. Evaluation Material.\n2.1 Nondisclosure of Evaluation Material. You hereby agree that you shall, and you shall cause your Representatives (other than Approved\nFinancing Sources), to: (i) use the Evaluation Material solely for the purpose of evaluating, negotiating, financing, consummating, and implementing\na possible Transaction and your possible participation in the Transaction, (ii) keep the Evaluation Material strictly confidential in accordance with\nthis letter agreement, and (iii) without the prior written consent of the Special Committee, not disclose any of the Evaluation Material to any person;\nprovided, however, that you may disclose any of the Evaluation Material to (a) your Representatives (including Approved Financing Sources) solely\nfor purposes of evaluating, negotiating, financing, consummating and/or implementing a possible Transaction and your possible participation in the\nTransaction who agree to be bound by the terms hereof to the same extent as if they were parties hereto; provided, however, that, without the Special\nCommittee’s prior consent, you shall not, and you shall cause your Representatives (other than Approved Financing Sources) not to, disclose to any\nof your Approved Financing Sources any Evaluation Material (other than Derivative Information that contains, reflects and is based upon only\nInformation that has already been provided to the Special Committee or its financial advisors, and no other Information) unless such Evaluation\nMaterial has already been provided to the Special Committee or its financial advisors, and (b) as otherwise permitted by Paragraph 2.2 hereof.\n3\n2.2 Compulsory Disclosure. In the event that you or any of your Representatives (other than Approved Financing Sources) receives a request\n(by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose, or is otherwise required by\nlaw, regulation, or regulatory authority or order or any rule of any stock exchange to which you or any of your Representatives is subject (“Law”) to\ndisclose, any of the Evaluation Material, you or such Representative (other than Approved Financing Sources) shall, unless prohibited by Law,\n(i) provide the Company and the Special Committee with prompt written notice of such request or requirement, along with, to the extent applicable,\na copy of the request and the proposed disclosure, the circumstances surrounding such request or requirement, the reason that such disclosure is\nrequired and the time and place such disclosure is expected to be made, in each case with sufficient specificity so that the Company and/or the\nSpecial Committee may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement,\nand (ii) if requested by the Company and/or the Special Committee, assist the Company and/or the Special Committee (in each case, at the\nCompany’s sole expense) in seeking a protective order or other appropriate remedy in response to such request or requirement. Without limiting the\ngenerality of the foregoing, you shall not, and shall cause your Representatives (other than Approved Financing Sources) not to, oppose any action\nby the Company and/or the Special Committee to obtain such a protective order or other remedy. Notwithstanding Paragraph 2.1, if, in the absence\nof a protective order or other remedy or the receipt of a waiver by the Company and the Special Committee, you are, or any of your Representatives\nis, nonetheless, on the advice of counsel, required by Law to disclose any Evaluation Material, you or such Representative may disclose to the\napplicable tribunal or other person only that portion of the Evaluation Material which such counsel advises is required by Law to be disclosed,\nprovided that you, or, if applicable, such Representative, exercise commercially reasonable efforts to continue to preserve, and have such tribunal or\nother person preserve, the confidentiality of such Evaluation Material. Notwithstanding any disclosure of Evaluation Material pursuant to this\nParagraph 2.2, you and your Representatives will continue to be bound by your and their obligations of confidentiality (including, without limitation,\nwith respect to any Evaluation Material disclosed pursuant to this Paragraph 2.2) and other obligations hereunder. Notwithstanding the foregoing,\nyou may make filings (and disclosures required therein) under Section 13(d) of the Exchange Act that are on the advice of counsel required to be\nmade by you or your Representatives without complying with this Paragraph 2.2; provided, that you have provided notice of your intent to make\nsuch filing (along with a reasonable description of the material items that will be disclosed in such filing) to the Special Committee as promptly as\npractical and in any event at least eight (8) hours prior to the filing thereof.\n2.3 Information Request Procedures. You further agree that, without the prior written consent of the Special Committee but subject to\nParagraph 6.2 hereof, all communications from you or your Representatives to the Company regarding any Transaction, including, without\nlimitation, requests for Information, will be submitted only to the Representatives of the Special Committee listed on Annex A hereto or to such\nother person or persons as the Special Committee may direct in writing and, unless expressly directed to the contrary by the Special Committee, not\nto the Company or any of its Representatives. Subject to Paragraph 6.2 hereof and other than with respect to Approved Financing Sources, you agree\nthat you will not, and you will cause\n4\nyour Representatives (other than Approved Financing Sources) not to, engage in any discussions with the Company or any of its suppliers, vendors,\nservice providers, joint venture partners, consultants or lenders regarding any Transaction without the prior consent of the Special Committee.\nNotwithstanding the foregoing and subject to the proviso in Paragraph 2.1(iii)(a), you shall not be prohibited from engaging in any communications\nwith any director of the Company who is also personnel of any Approved Financing Source.\n2.4 Return and Destruction of Evaluation Material. At any time upon the request of the Special Committee for any reason, you will promptly\n(i) deliver to the Special Committee all Evaluation Material (other than Derivative Information) in the possession of you or any of your\nRepresentatives (other than Approved Financing Sources) and (ii) at your election, deliver to the Special Committee or destroy all other Evaluation\nMaterial constituting Derivative Information in your or their possession, in each case without keeping any copies, in whole or part, in any medium\nwhatsoever, thereof. In the event of such a request, you shall deliver to the Special Committee a certificate stating that you have complied with all of\nthe requirements of this Paragraph 2.4. Notwithstanding the return or the destruction of the Evaluation Material or the termination of discussions\nregarding the Transaction, you and your Representatives may retain Evaluation Material as required by Law or internal document retention policies\nsolely for such purposes (and not for the purposes provided for in Paragraph 2.1); provided, that you and your Representatives will continue to be\nbound by your obligations of confidentiality (including, without limitation, with respect to any Evaluation Material destroyed or not returned\npursuant to this Paragraph 2.4) and other obligations hereunder.\n2.5 Accuracy of Evaluation Material. You understand and agree that none of the Company, the Special Committee or any of their respective\nRepresentatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. You agree\nthat none of the Company, the Special Committee or any of their respective Representatives shall have any liability to you or any of your\nRepresentatives relating to or resulting from the use of the Evaluation Material, including, without limitation, for any conclusions that you or any of\nyour Representatives derive from the Evaluation Material. Only those representations or warranties that are made in a final definitive agreement\nproviding for the Transaction, when, as and if executed and delivered by the parties, and subject to such limitations and restrictions as may be\nspecified therein, will have any legal effect.\n2.6 Privileges. The Company does not intend to waive, or to cause any of its Representatives to waive, the attorney-client, attorney work\nproduct or other applicable privilege of the Company or any of its subsidiaries or joint ventures (“Privilege”) by providing any Evaluation Material\nsubject to a Privilege, and any production by the Company or any of its Representatives of such Evaluation Material shall be inadvertent.\nAccordingly, you agree that a production to you or any of your Representatives by the Company or any of its Representatives of Evaluation\nMaterials protected by a Privilege shall not constitute a waiver of any such Privilege by any person, and you agree that, upon request by the\nCompany or any of its Representatives, you will, and you will cause your Representatives (other than Approved Financing Sources) to, immediately\nreturn and/or destroy such inadvertently produced Evaluation Materials.\n5\n2.7 Ownership of Evaluation Material. Nothing herein, nor any disclosure contemplated hereby, shall be deemed to transfer to you or any other\nperson any interest in, or confer in you or any other person any right (including, without limitation, intellectual property right) over, the Evaluation\nMaterial whatsoever beyond those interests and rights expressly provided for in this letter agreement.\n3. Non-Solicitation; Non-Hire.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of one (1) year from the date hereof, you\nwill not, and will cause your Representatives (other than your Approved Financing Sources and third party advisors not taking action on your behalf\nor at your direction) not to, directly or indirectly, without obtaining the prior written consent of the Company and the Special Committee, solicit for\nemployment or employ any of the officers or senior employees of the Company or any of its subsidiaries or joint ventures, other than officers or\nemployees who have ceased to be such prior to your solicitation or employment of them; provided, however, that the foregoing shall not restrict your\nability to conduct generalized searches for officers or employees by use of advertisements in periodicals of general circulation or general\nsolicitations through recruiting agencies, in each case not directed at such officers or employees.\n4. Standstill and Related Provisions.\n4.1 Standstill Provisions. In consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of fifteen\n(15) months from the date hereof (the “Restricted Period”), unless expressly permitted or authorized hereby or in writing by the Special Committee\nto do so, you will not, and you will cause your Representatives (other than Approved Financing Sources and third party advisors not taking action on\nyour behalf or at your direction) not to, directly or indirectly, acting alone or as part of a group: (i) acquire, offer to acquire, or agree to acquire,\ndirectly or indirectly, by purchase or otherwise, any (a) voting or other equity securities or direct or indirect rights to acquire any voting or other\nequity securities of the Company or any of its subsidiaries or joint ventures, or (b) any other securities, rights or interests, including without\nlimitation, options, swaps, derivatives or convertible or other similar instruments, whether real or synthetic, which give you the right to vote or to\ndirect the voting of any voting or equity securities of the Company or any of its subsidiaries or joint ventures; (ii) enter into or agree, offer, propose\nor seek to enter into, or otherwise be involved in or part of, directly or indirectly, any Acquisition Transaction; (iii) make, or in any way participate\nin, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange Commission) to vote, or\nseek to advise or influence any person or entity with respect to the voting of, any voting securities of the Company in connection with or related in\nany way to an Acquisition Transaction; (iv) form, join or in any way participate in a group with respect to any voting or other equity securities of the\nCompany or any of its subsidiaries or joint ventures (other than a Permitted Group (as defined below)); (v) seek or propose, alone or in concert with\nothers, to influence or control the management or policies of the Company or any of its subsidiaries or joint ventures in connection with or related in\nany way to an Acquisition Transaction; (vi) directly or indirectly enter into any discussions, negotiations, arrangements or understandings with any\nother person (other than Approved Financing Sources to the extent permitted hereby) with respect to any of the foregoing activities or propose any of\nsuch activities\n6\nto any other person (other than Approved Financing Sources to the extent permitted hereby); (vii) advise, assist, encourage, or act as a financing\nsource for or otherwise invest in any other person who may serve as a financing source in connection with any of the foregoing activities (other than\nApproved Financing Sources); (viii) disclose (except to the extent permitted hereby, to the Company, the Special Committee or their respective\nRepresentatives or Approved Financing Sources) any intention, plan or arrangement inconsistent with any of the foregoing; (ix) request that the\nCompany, the Special Committee or their respective Representatives, directly or indirectly (a) amend or waive any provision of this Paragraph 4.1\n(including this clause (ix)) or (b) otherwise consent to any action inconsistent with any provision of this Paragraph 4.1 (including this clause (ix));\n(x) take any action that might require the Company or its Representatives to make a public announcement regarding any of the activities referred to\nin clauses (i)-(ix) of this Paragraph 4.1 (other than disclosures expressly permitted by this letter agreement); or (xi) agree to take any of the foregoing\nactions; provided, however, that the foregoing shall not restrict your and your Representatives’ ability to (a) take any action, or permit any of your\nRepresentatives to take any action, in (and solely in) your capacity, or the capacity of any such Representative, as a director or officer of the\nCompany, (b) exercise any of your options to purchase common stock of the Company, (c) acquire shares of common stock of the Company or other\nsecurities of the Company by way of distributions of such securities in connection with deferred director compensation, (d) as long as you have\ncomplied and continue to comply with the second sentence of Paragraph 4.3 (which shall not be limited by this clause (d)), submit to the Special\nCommittee one or more confidential proposals regarding a Transaction or (e) have discussions with and among your Representatives with respect to\na proposal for a Transaction, including, to the extent permitted by Paragraph 4.3, to form a group that is a Permitted Group. For the avoidance of\ndoubt, nothing in this letter agreement shall restrict your or your affiliates’ ability to (1) sell or transfer (in whole or in part) or vote any securities of\nthe Company in your sole and absolute discretion or (2) amend your Schedule 13D as legally required (it being understood, however, that this clause\n(2) shall not be construed to permit you to take actions otherwise prohibited by this letter agreement). This letter agreement shall constitute a\n“standstill agreement” for purposes of the definition of “Acquiring Person” as defined in the Rights Agreement, dated as of January 12, 2011, by and\nbetween the Company and Continental Stock Transfer & Trust Company, as Rights Agent.\n4.2 Prohibition on Voting Restrictions. During the Restricted Period, you shall not, and you shall cause your Representatives (other than\nApproved Financing Sources and third party advisors not taking action on your behalf or at your direction) not to, enter into any exclusivity, lock-up\nor other agreement, arrangement or understanding, whether written or oral, with any current or future shareholder of the Company or other person\nthat has the right to vote or direct the voting of voting securities of the Company that is intended or could reasonably be expected to limit, restrict,\nrestrain or otherwise impair in any manner, directly or indirectly, the ability of such person to (i) vote any voting securities of the Company\nbeneficially owned by such person (or with respect to which such person otherwise has the right to vote or to the direct the voting of such voting\nsecurities) in favor of, or (ii) tender any such voting or equity securities of the Company into any offer made in connection with any transaction\ninvolving the Company.\n4.3 Group Formation; Permitted Groups. You acknowledge that you have filed a Schedule 13D with the Securities and Exchange Commission\nin which you disclaim, as of the date of such Schedule 13D, the formation of a group with Oaktree Capital Management, L.P. and\n7\nits funds and accounts under management, Ares Management LLC and its funds under management, and Thomas Boone Pickens, Jr. and beneficial\nownership of shares of common stock of the Company of such persons. You shall not, without the prior written consent of the Special Committee,\njoin or form a group with any person other than one or more Approved Financing Sources. Any group permitted to be formed pursuant to the\nimmediately preceding sentence or with the prior written consent of the Special Committee shall be referred to as a “Permitted Group.” You and the\nCompany each acknowledge that under certain circumstances, the joining or formation of a group by you and other shareholders of the Company\nmay trigger a default or an event of default or other material adverse effect under that certain Credit Agreement (the “Credit Agreement”), dated as\nof April 30, 2010, among the Company, certain subsidiaries of the Company, as guarantors, the lenders party thereto and JPMorgan Chase Bank,\nN.A., as administrative agent. The parties hereto acknowledge that the Company intends to seek to promptly obtain an effective waiver (a “Waiver”)\nunder the Credit Agreement that permits you (together with other shareholders of the Company) to join or form a group without causing a default or\nan event of default or any other material adverse effect under the Credit Agreement. Further, you and the Company each agree to consult with each\nother and keep each other reasonably informed with respect to the pursuit of such Waiver. Notwithstanding the foregoing, the Special Committee\nshall retain the sole right to enter into such Waiver on behalf of the Company.\n4.4 Termination of Standstill and Related Provisions. Notwithstanding the foregoing, if (i) the Company enters into a definitive agreement with\nany person other than you, any of your affiliates or any other person who is a participant in a Permitted Group of which you are also a participant\nthat provides for an Acquisition Transaction that is approved, and recommended to the Company’s shareholders, by the Special Committee, and\n(ii) thereafter you make a Superior Proposal, the effectiveness of Paragraphs 4.1 and 4.2 and the second sentence of Paragraph 4.3 shall terminate\nand the provisions of those paragraphs and sentence shall have no further force and effect.\n5. Financing Sources and Other Interested Persons.\n5.1 Approved Financing Sources. Except for your Representatives, you shall not, and you shall cause your Representatives (other than\nApproved Financing Sources) not to, provide any Evaluation Material to any person except an Approved Financing Source. “Approved Financing\nSource” shall mean (i) any person listed on Annex B hereto, (ii) any person that (a) is an individual or a bona fide private equity firm or other similar\ninstitutional investor, (b) is not a direct or indirect beneficial owner of more than one percent (1%) of the equity securities of the Company or any of\nits subsidiaries or joint ventures, (c) is reasonably expected to provide financing for a potential Transaction in an amount that is less than $50 million\nand (d) the Special Committee does not have any reasonable, good faith reason to object to serving as an Approved Financing Source and (iii) any\nother person expressly approved by the Special Committee as an Approved Financing Source (such consent not to be unreasonably withheld);\nprovided in each case that a person shall be an Approved Financing Source only if such person, the Company and the Special Committee shall have\nentered into a confidentiality agreement. The Company and the Special Committee shall enter into a confidentiality agreement with such potential\nApproved Financing Source in the form set forth on Annex C unless (1) the potential Approved Financing Source desires or insists upon material\nchanges thereto and/or (2) the\n8\nSpecial Committee concludes in good faith that such form of confidentiality agreement is not adequate or appropriate for such purposes as a result of\nany change, event or circumstance occurring or existing after the date hereof, in which case the Special Committee, on behalf of itself and the\nCompany, shall negotiate in good faith in an attempt to reach agreement on terms thereof acceptable to the parties. If the parties propose to enter into\na confidentiality agreement in the form set forth on Annex C, then promptly following your request, or in the case of a confidentiality agreement\nnegotiated among the parties pursuant to the previous sentence, then promptly following agreement between the parties on the terms thereof, the\nCompany and the Special Committee agree to execute such confidentiality agreement; provided that in no event shall the Company or the Special\nCommittee be under any obligation to execute any confidentiality agreement with any potential Approved Financing Source if the sum of the total\naggregate number of shares of capital stock of the Company owned (beneficially or of record) by such potential Approved Financing Source, you,\nyour Approved Financing Sources and any or all members of any group of which you are a member equals or exceeds 29.9% of the outstanding\nshares of capital stock of the Company unless and until the Waiver has been received by the Company and is effective.\n5.2 Financing Arrangements. You agree that without the prior written consent of the Special Committee, you shall not, and you shall cause\nyour Representatives (other than Approved Financing Sources) not to, directly or indirectly, enter into any agreements, arrangements or\nunderstandings, whether written or oral, with any person that provides or contemplates that such person shall, or reasonably could be expected to,\ndirectly or indirectly, provide equity or debt financing for, or otherwise serve as a principal party or investor in, any Transaction except for\nagreements, arrangements or understandings you may enter into in the future with Approved Financing Sources (but in any event subject to the other\nlimitations set forth in this letter agreement, including Paragraph 5.3). You represent and warrant to the Company and the Special Committee that\nneither you nor any of your Representatives (other than Approved Financing Sources) that are acting on your behalf or at your direction have entered\ninto any such agreement, arrangement or any understanding other than those that have been disclosed in writing to the Special Committee or publicly\ndisclosed as of the date hereof.\n5.3 Prohibition on Exclusive Arrangements. You shall not, and you shall cause your Representatives (other than (a) your Approved Financing\nSources and (b) third party advisors not taking action on your behalf or at your direction) not to, enter into any exclusivity, lock-up or other\nagreement, arrangement or understanding, whether written or oral, with any person that is intended or could otherwise reasonably be expected to\nlimit, restrict, restrain or otherwise impair in any manner, directly or indirectly, the ability of such person to provide financing to any other person in\nconnection with any transaction involving the Company; provided, however, that nothing in this sentence shall prohibit you from limiting,\nrestricting, restraining or impairing any person that is providing equity financing to you from providing equity financing to any other person. You\nrepresent and warrant to the Company and the Special Committee that neither you nor any of your Representatives that are acting on your behalf or\nat your direction (other than Approved Financing Sources and third party advisors not taking action on your behalf or at your direction) have entered\ninto any such agreement, arrangement or any understanding as of the date hereof.\n9\n5.4 No Discouragement. You shall not, and you shall cause your Representatives (other than Approved Financing Sources and third party\nadvisors not taking action on your behalf or at your direction) not to, take any action to discourage any person from making any proposal with\nrespect to a Transaction. However, nothing in this letter agreement shall limit in any respect your rights as to the terms, conditions or the\ncontinuation or termination of your employment with the Company or any of its subsidiaries or joint ventures.\n6. Miscellaneous.\n6.1 Compliance with Securities Laws. You understand and agree that you are aware, and that you will advise your Representatives, that the\nfederal and state securities laws prohibit any person who has material, non-public information about a company from purchasing or selling securities\nof such a company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that the\nperson is likely to purchase or sell those securities. You will, and will cause your Representatives (other than Approved Financing Sources and third\nparty advisors not taking action on your behalf or at your direction) to, comply with federal and state securities laws in connection with the receipt of\nEvaluation Material contemplated hereby.\n6.2 Fiduciary Responsibilities. Nothing contained in this letter agreement shall be deemed to limit or expand your rights or obligations in\ndischarging, or restrict your activities in furtherance of, your fiduciary responsibilities as a director of the Company for so long as you shall remain a\ndirector of the Company.\n6.3 Breach. You shall be responsible for any breach of this letter agreement by you or any of your Representatives (other than Approved\nFinancing Sources) of the terms specifically applicable to Representatives, and you agree, at your sole expense, to take all reasonable measures to\navoid any prohibited or unauthorized disclosure or use of the Evaluation Material or other breach of this letter agreement by any of your\nRepresentatives (other than Approved Financing Sources) of the terms specifically applicable to Representatives. The foregoing obligation shall not\nlimit the remedies available to the Company for any such breach of this letter agreement.\n6.4 Process. You agree that unless and until a final definitive written agreement providing for a Transaction has been executed and delivered by\nthe Company and you, none of the Company, the Special Committee or any of their respective Representatives will be under any legal obligation of\nany kind whatsoever with respect to such Transaction by virtue of this letter agreement. You further acknowledge and agree that the Special\nCommittee reserves the right to both reject any and all proposals made by you or your Representatives with regard to a Transaction and/or to\nterminate discussions and negotiations with you or any of your Representatives at any time for any reason or no reason. The Special Committee\nretains the right to determine what Information it will make available to you or any of your Representatives. You also understand and agree that this\nletter agreement does not limit the Company, the Special Committee or any of their respective Representatives from entering into negotiations and\ndiscussions with other parties for a possible transaction in lieu of the Transaction with you and entering into a definitive agreement with respect\nthereto without prior notice to you or any of your Representatives. You also understand and agree that this letter agreement does not limit the\n10\nCompany, the Special Committee or any of their respective Representatives from changing in any way the Company’s or the Special Committee’s\nprocess for considering the Transaction or any transaction in lieu of the Transaction without prior notice to you or any of your Representatives.\n6.5 Notices. All notices, claims, demands and other communications under this Agreement shall be in writing and shall be delivered\npersonally, telecopied or emailed with confirmation of receipt, or by next-day courier to you, the Company or the Special Committee, as applicable,\nat the addresses specified below (or at such other address as shall be specified by a person by like notice; provided that notices of a change of\naddress shall be effective only upon receipt thereof). Any such notice shall be effective upon receipt, if personally delivered, telecopied or emailed,\nor one day after delivery to a courier for next-day delivery.\nIf to you:\nDouglas H. Miller\n12377 Merit Dr., Suite 1700\nDallas, TX 75251\nFacsimile:\n(214) 378-5442\nE-mail:\ndmillerbreakaway@gmail.com\ndsablotny@excoresources.com\nWith a copy to:\nVinson & Elkins LLP\n2001 Ross Avenue, Suite 3700\nDallas, TX 75201\nAttention:\nJeffery A. Chapman\nJohn M. Grand\nFacsimile:\n(212) 999-7797\nE-mail:\njchapman@velaw.com\njgrand@velaw.com\nIf to the Company:\nEXCO Resources, Inc.\nc/o the Special Committee\nc/o Kirkland & Ellis LLP\n601 Lexington Avenue\nNew York, New York 10022\nAttention:\nThomas W. Christopher\nWilliam B. Sorabella\nFacsimile:\n(212) 446-4900\nE-mail:\nthomas.christopher@kirkland.com\nwilliam.sorabella@kirkland.com\nIf to the Special Committee:\nThe Special Committee\nc/o Kirkland & Ellis LLP\n601 Lexington Avenue\nNew York, New York 10022\nAttention:\nThomas W. Christopher\nWilliam B. Sorabella\nFacsimile:\n(212) 446-4900\nE-mail:\nthomas.christopher@kirkland.com\nwilliam.sorabella@kirkland.com\n11\n6.6 Modification and Waiver. This letter agreement may be modified or waived only by a separate writing by the Company, the Special\nCommittee and you expressly so modifying or waiving this letter agreement. It is understood and agreed that no failure or delay by the Company or\nthe Special Committee in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.\n6.7 Severability. The invalidity or unenforceability of any provision of this letter agreement shall not affect the validity or enforceability of any\nother provisions of this letter agreement. In the event that any of the provisions of this letter agreement shall be held by a court or other tribunal of\ncompetent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be deemed limited or eliminated only to the minimum extent\nnecessary so that this letter agreement shall otherwise remain in full force and effect.\n6.8 Entire Agreement. This letter agreement, together with the other instruments and agreements referenced herein, contains the entire\nagreement between the Company, the Special Committee and you concerning the subject matter hereof. This letter agreement and such instruments\nand agreements shall be in addition to, and shall not limit the effectiveness of any other previous agreement, whether written or oral, that may relate\nto the subject matter hereof, including, without limitation, any agreements entered into, or policies to which you are subject, as an officer of the\nCompany.\n6.9 Remedies. It is further understood and agreed that money damages may not be a sufficient remedy for any breach of this letter agreement\nby you or any of your Representatives (other than Approved Financing Sources) and, in addition to all other remedies that the Company, the Special\nCommittee or any of their respective Representatives may have at law or in equity, the Company, the Special Committee and any of their respective\nRepresentatives shall be entitled to equitable relief, including, without limitation, injunction and specific performance, as a remedy for any such\nbreach and you hereby waive any requirement for the securing or posting of any bond in connection with such remedy.\n6.10 Governing Law; Venue. This letter agreement shall be governed by and construed in accordance with the laws of the State of Texas\nwithout giving effect to the conflicts of law provisions thereof. The parties hereto hereby irrevocably and unconditionally consent to the sole and\nexclusive jurisdiction of, and waive any objection to the laying of venue in, the federal and state courts sitting in Dallas County, Texas (collectively,\nthe “Texas Courts”) for any action, suit or proceeding arising out of or relating to this letter agreement, and agree not to commence any action, suit\nor proceeding related thereto except in a Texas Court. Each of the parties hereto further agrees that service of any process, summons, notice or\ndocument by registered mail to its address set forth above shall be effective service of process for any action, suit or proceeding brought against it in\nany Texas Court.\n6.11 Assignment; Binding Effect. Without the prior consent of the other party, neither party may assign its rights or obligations (in the case of\nthe Company, other than by operation of\n12\nlaw) under this letter agreement to any person. This letter agreement shall be binding upon you and your respective successors and permitted assigns\nand shall inure to the benefit of, and be enforceable by, the Company and its respective successors and permitted assigns.\n6.12 Expenses. All costs and expenses incurred in connection with this letter agreement and the consideration by the parties of the Transaction,\nincluding, without limitation, all fees of law firms, commercial banks, investment banks, accountants, public relations firms, experts and consultants,\nshall be paid by the party incurring such cost or expense.\n6.13 Headings. Headings included in this letter agreement are for the convenience of the parties only and shall be given no substantive or\ninterpretive effect.\n6.14 Counterparts; Signatures. This letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an\noriginal but all of which together shall constitute one and the same instrument. This letter agreement or any counterpart may be executed and\ndelivered by facsimile or electronic transmission copies, each of which shall be deemed to be an original.\n6.15 Term. Except as otherwise specifically provided herein, this letter agreement shall terminate and be of no further force and effect as of the\ndate that is fifteen (15) months following the date hereof; provided, however, that such termination shall not relieve you from your responsibilities in\nrespect of any breach of this letter agreement prior to such termination.\n(Signature page follows)\n13\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nSPECIAL COMMITTEE OF THE BOARD OF\nDIRECTORS OF EXCO RESOURCES, INC.\nBy: /s/ Vincent Cebula\nName: Vincent Cebula\nTitle: Chairman of the Special Committee\nEXCO RESOURCES, INC.\nBy: /s/ William L. Boeing\nName: William L. Boeing\nTitle: Vice President and General Counsel\nAccepted and agreed as of the date first written above:\nDOUGLAS H. MILLER\nBy: /s/ Douglas H. Miller\nName: Douglas H. Miller
+53c8f90cfb5fb49177c9cb160e53f17b.pdf	effective_date jurisdiction party term	EX-99.D.4 13 w01967iexv99wdw4.htm EXHIBIT (D)(4)\nDATAKEY, INC.\nMUTUAL NONDISCLOSURE AGREEMENT\nEFFECTIVE DATE: August 3, 2004\nPARTIES:\nSafeNet, Inc (the “Company”)\n4690 Millennium Drive\nBelcamp, MD 21017\nDatakey, Inc. (“Datakey”)\n407 West Travelers Trail\nBurnsville, MN 55337-2558\nRECITALS:\nA. The Company and Datakey are commencing discussions regarding a potential corporate transaction (the “Transaction”).\nB. In order to facilitate the negotiations regarding such Transaction, each party may disclose to the other party certain information, including\nconfidential information, owned by the disclosing party which the disclosing party is willing to disclose to the other party in reliance on the\nexecution of this Agreement.\nAGREEMENT:\nIn consideration of the covenants contained herein and the disclosure of the confidential information, the parties agree as follows:\n1. Definition of Confidential Information. For purposes of this Agreement, the term “Confidential Information” includes, but is not limited to,\nany information of the disclosing party, whether disclosed orally, in writing, on computer disc or tape or any other method, including any\nformula, pattern, compilation, program, device, method, technique or process that: (i) derives independent economic value, actual or potential,\nfrom not being generally known to, and not being readily ascertainable through proper means by, other persons who can obtain economic value\nfrom its disclosure or use, and (ii) is the subject of efforts by the disclosing party that are reasonable under the circumstances to maintain its\nsecrecy. The receiving party acknowledges that such Confidential Information specifically includes, but is not limited to, trade secrets and\ninformation contained in or relating to computer software programs, technical information, know-how, other confidential processes, information\nwhich relates to the disclosing party’s future products, marketing plans or proposals, financial and sales information, subcontractor and employee\nlists, existing, inactive or potential customer lists, and all other customer information. All information which the disclosing party identifies in a\nconspicuous place as being “confidential” or “trade secret” shall be presumed to be Confidential Information, unless such information meets one\nor more of the tests set forth below in subparagraphs a. - d .\nThe term Confidential Information as used in this Agreement shall not include any information:\na. which was in the public domain at the time of disclosure by the disclosing party to the receiving party;\n-1-\nb. which is published or otherwise comes into the public domain after its disclosure to the receiving party through no violation of this\nAgreement by the receiving party;\nc. which is disclosed to the receiving party by a third party not under an obligation of confidence to the disclosing party;\nd. which was already in the possession of the receiving party without restriction and prior to disclosure hereunder;\ne. which, as evidenced by contemporaneous documentation, is developed by the receiving party independently of Confidential\nInformation disclosed by disclosing party and without breach of this Agreement; or\nf. which is required to be disclosed by any law or governmental regulation or produced under order of a court of competent jurisdiction;\nprovided, however, that the receiving party provides the disclosing party written notice of such request or order as soon as reasonably\npracticable so that the disclosing party may attempt to limit such disclosure.\nThis Agreement shall govern disclosure of Confidential information for a period of one year from the date hereof, and the obligations of\nconfidentiality and non-use set forth below shall survive for a period of THREE (3) years from the effective date of this Agreement.\n2. Warranties. The receiving party agrees and warrants to the disclosing party as follows with respect to all Confidential Information received\nor learned by it, regardless whether or not a contract is ultimately executed between the parties:\na. The receiving party will treat as confidential all Confidential Information made available to the receiving party or to any employee,\nagent or representative of the receiving party.\nb. The receiving party shall protect the Confidential Information from unauthorized use or disclosure by using the same degree of care as\nthe receiving party uses to protect its own confidential information of a like nature, but no less than a reasonable degree of care.\nc. The receiving party will maintain the Confidential Information in a secure place and limit access to the Confidential Information to\nthose employees, agents and representatives of the receiving party to whom it is necessary to disclose the Confidential Information in\nfurtherance of the receiving party’s investigations and negotiations regarding the potential acquisition of the disclosing party and from whom\nthe receiving party has received a written agreement in which the employee promises to maintain the confidentiality of and not to wrongfully\nuse the Confidential Information.\nd. The receiving party and its employees, agents and representatives will not copy, disclose to unauthorized parties or use any\nConfidential Information for any purpose other than to further the receiving party’s investigations regarding the potential business\nrelationship with the disclosing party.\ne. If negotiations are terminated and no contract is executed, the receiving party will promptly deliver to the disclosing party all copies of\ndocuments containing Confidential\n-2-\nInformation disclosed to the receiving party, whether or not such documents were prepared by the disclosing party.\nf. The receiving party assumes all liability for any breach of the terms of this Agreement by it or any of its employees, agents or\nrepresentatives.\ng. The receiving party will use Confidential Information solely for the purpose of discussing and evaluating the Transaction, and for no\nother purpose.\n3. No License. Nothing contained in this Agreement shall be construed as creating any licenses to use the Confidential Information or other\nintellectual property of the disclosing party except as expressly stated in this Agreement.\n4. Each party understands that each party is a publicly-held company and that all or part of each party’s Confidential Information may\nconstitute material non-public information under the United States securities laws, and each party acknowledges that it is aware that the United\nStates securities laws prohibit any person who is in the possession of material non-public information about a company from purchasing or\nselling that company’s securities in reliance upon such information or from communicating such information to any other person or entity under\ncircumstances in which it is reasonably foreseeable that such person or entity is likely to purchase or sell such securities in reliance upon such\ninformation. Each party represents that, as of the date of this agreement, neither party nor its controlled affiliates, nor anyone acting on its or their\nbehalf in connection with the Transaction, has acquired record or beneficial ownership of any voting securities of the other party or of any\nsecurities convertible or exchangeable into or exercisable for voting securities of the other party, and each Party agrees that neither it, nor any of\nits directors, officers or employees who have been provided with the Confidential Information will perform any purchase, sale or other transfer of\nany of the securities of the other party in violation of United States securities laws.\n5. Nonsolicitation of Employees. The receiving party agrees for a period of one year (a) from end of discussions between the parties if no\nwritten agreement is ultimately entered into between the parties, or (b) from the expiration or termination of the written agreement ultimately\nentered into between the parties, to refrain from directly soliciting or seeking to hire any employee of the disclosing party about whom receiving\nparty received Confidential Information hereunder. Nothing herein shall prohibit either party from hiring or seeking to hire any employee of\ndisclosing party who independently responds to a general advertisement placed by the receiving party; provided that such receiving party does\nnot have any contact or conversations with such employee relating to such advertisement or employment prior to his or her response to such\nadvertisement.\n6. Remedy Upon Violation. The receiving party agrees and understands that any unauthorized use or disclosure of the Confidential\nInformation or improper solicitation of the disclosing party’s employees shall cause substantial harm to the disclosing party and that the\ndisclosing party would not have an adequate remedy at law for such breach of the terms of this Agreement by the receiving party or any of the\ndisclosing party’s employees, agents or representatives. The receiving party agrees that the disclosing party shall be entitled to an injunction with\nthe posting of the minimum allowable bond, enjoining or restraining the receiving party from any violation or violations of this Agreement and\nthe receiving party hereby consents to the issuance of such injunction. The disclosing party’s rights to such equitable remedies shall be in\naddition to all other rights or remedies which the disclosing party may have under this Agreement or under applicable law.\n7. Binding Effect. The failure of the parties to enter into a contractual arrangement or the return by the receiving party of documents\ncontaining Confidential Information in accordance with Paragraph 2(e) shall not relieve the receiving party of its obligations under this\nAgreement. This\n-3-\nAgreement shall be binding upon and inure to the benefit of the parties, their respective successors and assigns. Neither this Agreement nor the\ndisclosure or receipt of Confidential Information shall constitute or imply a commitment by either party with respect to the Transaction, present\nor future business agreements, or any other subject matter not expressly set forth herein.\n8. Modification and Waiver. No purported amendment, modification or waiver of any provision of this Agreement shall be binding unless set\nforth in a written document signed by all parties (in the case of amendments and modifications) or by the party to be charged thereby (in the case\nof waivers). Any waiver shall be limited to the circumstance or event specifically referenced in the written waiver document and shall be deemed\nto be a waiver or any other term of this Agreement or of the same circumstance or event upon any recurrence thereof.\n9. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware, without application\nof its conflict of laws provisions.\nThe parties have caused this Agreement to be executed in a manner appropriate to each to be effective as of the date set forth on the first page\nof this Agreement.\nDATAKEY, INC.\nSafeNet, Inc.\n(“Datakey”)\n(the “Company”)\nBy\n/s/ David A. Feste\nBy\n/s/ Carole D. Argo\nName David A. Feste\nName\nCarole D. Argo\nIts\nChief Financial Officer\nIts\nPresident\n-4-	EX-99.D.4 13 w01967iexv99wdw4.htm EXHIBIT (D)(4)\nDATAKEY, INC.\nMUTUAL NONDISCLOSURE AGREEMENT\nEFFECTIVE DATE: August 3, 2004\nPARTIES:\nSafeNet, Inc (the “Company”)\n4690 Millennium Drive\nBelcamp, MD 21017\nDatakey, Inc. (“Datakey”)\n407 West Travelers Trail\nBurnsville, MN 55337-2558\nRECITALS:\nA. The Company and Datakey are commencing discussions regarding a potential corporate transaction (the “Transaction”).\nB. In order to facilitate the negotiations regarding such Transaction, each party may disclose to the other party certain information, including\nconfidential information, owned by the disclosing party which the disclosing party is willing to disclose to the other party in reliance on the\nexecution of this Agreement.\nAGREEMENT:\nIn consideration of the covenants contained herein and the disclosure of the confidential information, the parties agree as follows:\n1. Definition of Confidential Information. For purposes of this Agreement, the term “Confidential Information” includes, but is not limited to,\nany information of the disclosing party, whether disclosed orally, in writing, on computer disc or tape or any other method, including any\nformula, pattern, compilation, program, device, method, technique or process that: (i) derives independent economic value, actual or potential,\nfrom not being generally known to, and not being readily ascertainable through proper means by, other persons who can obtain economic value\nfrom its disclosure or use, and (ii) is the subject of efforts by the disclosing party that are reasonable under the circumstances to maintain its\nsecrecy. The receiving party acknowledges that such Confidential Information specifically includes, but is not limited to, trade secrets and\ninformation contained in or relating to computer software programs, technical information, know-how, other confidential processes, information\nwhich relates to the disclosing party’s future products, marketing plans or proposals, financial and sales information, subcontractor and employee\nlists, existing, inactive or potential customer lists, and all other customer information. All information which the disclosing party identifies in a\nconspicuous place as being “confidential” or “trade secret” shall be presumed to be Confidential Information, unless such information meets one\nor more of the tests set forth below in subparagraphs a.-d.\nThe term Confidential Information as used in this Agreement shall not include any information:\na. which was in the public domain at the time of disclosure by the disclosing party to the receiving party;\n-1-\nb. which is published or otherwise comes into the public domain after its disclosure to the receiving party through no violation of this\nAgreement by the receiving party;\nc. which is disclosed to the receiving party by a third party not under an obligation of confidence to the disclosing party;\nd. which was already in the possession of the receiving party without restriction and prior to disclosure hereunder;\ne. which, as evidenced by contemporaneous documentation, is developed by the receiving party independently of Confidential\nInformation disclosed by disclosing party and without breach of this Agreement; or\nf. which is required to be disclosed by any law or governmental regulation or produced under order of a court of competent jurisdiction;\nprovided, however, that the receiving party provides the disclosing party written notice of such request or order as soon as reasonably\npracticable so that the disclosing party may attempt to limit such disclosure.\nThis Agreement shall govern disclosure of Confidential information for a period of one year from the date hereof, and the obligations of\nconfidentiality and non-use set forth below shall survive for a period of THREE (3) years from the effective date of this Agreement.\n2. Warranties. The receiving party agrees and warrants to the disclosing party as follows with respect to all Confidential Information received\nor learned by it, regardless whether or not a contract is ultimately executed between the parties:\na. The receiving party will treat as confidential all Confidential Information made available to the receiving party or to any employee,\nagent or representative of the receiving party.\nb. The receiving party shall protect the Confidential Information from unauthorized use or disclosure by using the same degree of care as\nthe receiving party uses to protect its own confidential information of a like nature, but no less than a reasonable degree of care.\nc. The receiving party will maintain the Confidential Information in a secure place and limit access to the Confidential Information to\nthose employees, agents and representatives of the receiving party to whom it is necessary to disclose the Confidential Information in\nfurtherance of the receiving party’s investigations and negotiations regarding the potential acquisition of the disclosing party and from whom\nthe receiving party has received a written agreement in which the employee promises to maintain the confidentiality of and not to wrongfully\nuse the Confidential Information.\nd. The receiving party and its employees, agents and representatives will not copy, disclose to unauthorized parties or use any\nConfidential Information for any purpose other than to further the receiving party’s investigations regarding the potential business\nrelationship with the disclosing party.\ne. If negotiations are terminated and no contract is executed, the receiving party will promptly deliver to the disclosing party all copies of\ndocuments containing Confidential\n-\nInformation disclosed to the receiving party, whether or not such documents were prepared by the disclosing party.\nf. The receiving party assumes all liability for any breach of the terms of this Agreement by it or any of its employees, agents or\nrepresentatives.\ng. The receiving party will use Confidential Information solely for the purpose of discussing and evaluating the Transaction, and for no\nother purpose.\n3. No License. Nothing contained in this Agreement shall be construed as creating any licenses to use the Confidential Information or other\nintellectual property of the disclosing party except as expressly stated in this Agreement.\n4. Each party understands that each party is a publicly-held company and that all or part of each party’s Confidential Information may\nconstitute material non-public information under the United States securities laws, and each party acknowledges that it is aware that the United\nStates securities laws prohibit any person who is in the possession of material non-public information about a company from purchasing or\nselling that company’s securities in reliance upon such information or from communicating such information to any other person or entity under\ncircumstances in which it is reasonably foreseeable that such person or entity is likely to purchase or sell such securities in reliance upon such\ninformation. Each party represents that, as of the date of this agreement, neither party nor its controlled affiliates, nor anyone acting on its or their\nbehalf in connection with the Transaction, has acquired record or beneficial ownership of any voting securities of the other party or of any\nsecurities convertible or exchangeable into or exercisable for voting securities of the other party, and each Party agrees that neither it, nor any of\nits directors, officers or employees who have been provided with the Confidential Information will perform any purchase, sale or other transfer of\nany of the securities of the other party in violation of United States securities laws.\n5. Nonsolicitation of Employees. The receiving party agrees for a period of one year (a) from end of discussions between the parties if no\nwritten agreement is ultimately entered into between the parties, or (b) from the expiration or termination of the written agreement ultimately\nentered into between the parties, to refrain from directly soliciting or seeking to hire any employee of the disclosing party about whom receiving\nparty received Confidential Information hereunder. Nothing herein shall prohibit either party from hiring or seeking to hire any employee of\ndisclosing party who independently responds to a general advertisement placed by the receiving party; provided that such receiving party does\nnot have any contact or conversations with such employee relating to such advertisement or employment prior to his or her response to such\nadvertisement.\n6. Remedy Upon Violation. The receiving party agrees and understands that any unauthorized use or disclosure of the Confidential\nInformation or improper solicitation of the disclosing party’s employees shall cause substantial harm to the disclosing party and that the\ndisclosing party would not have an adequate remedy at law for such breach of the terms of this Agreement by the receiving party or any of the\ndisclosing party’s employees, agents or representatives. The receiving party agrees that the disclosing party shall be entitled to an injunction with\nthe posting of the minimum allowable bond, enjoining or restraining the receiving party from any violation or violations of this Agreement and\nthe receiving party hereby consents to the issuance of such injunction. The disclosing party’s rights to such equitable remedies shall be in\naddition to all other rights or remedies which the disclosing party may have under this Agreement or under applicable law.\n7. Binding Effect. The failure of the parties to enter into a contractual arrangement or the return by the receiving party of documents\ncontaining Confidential Information in accordance with Paragraph 2(e) shall not relieve the receiving party of its obligations under this\nAgreement. This\n_3-\nAgreement shall be binding upon and inure to the benefit of the parties, their respective successors and assigns. Neither this Agreement nor the\ndisclosure or receipt of Confidential Information shall constitute or imply a commitment by either party with respect to the Transaction, present\nor future business agreements, or any other subject matter not expressly set forth herein.\n8. Modification and Waiver. No purported amendment, modification or waiver of any provision of this Agreement shall be binding unless set\nforth in a written document signed by all parties (in the case of amendments and modifications) or by the party to be charged thereby (in the case\nof waivers). Any waiver shall be limited to the circumstance or event specifically referenced in the written waiver document and shall be deemed\nto be a waiver or any other term of this Agreement or of the same circumstance or event upon any recurrence thereof.\n9. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware, without application\nof its conflict of laws provisions.\nThe parties have caused this Agreement to be executed in a manner appropriate to each to be effective as of the date set forth on the first page\nof this Agreement.\nDATAKEY, INC. SafeNet, Inc.\n(“Datakey™) (the “Company™)\nBy /s/ David A. Feste By /s/ Carole D. Argo\nName  David A. Feste Name Carole D. Argo\nIts Chief Financial Officer Its President	EX-99.D.4 13 w01967iexv99wdw4.htm EXHIBIT (D)(4)\nDATAKEY, INC.\nMUTUAL NONDISCLOSURE AGREEMENT\nEFFECTIVE DATE: August 3, 2004\nPARTIES:\nSafeNet, Inc (the "Company")\n4690 Millennium Drive\nBelcamp, MD 21017\nDatakey, Inc. ("Datakey")\n407 West Travelers Trail\nBurnsville, MN 55337-2558\nRECITALS:\nA. The Company and Datakey are commencing discussions regarding a potential corporate transaction (the "Transaction").\nB. In order to facilitate the negotiations regarding such Transaction, each party may disclose to the other party certain information, including\nconfidential information, owned by the disclosing party which the disclosing party is willing to disclose to the other party in reliance on the\nexecution of this Agreement.\nAGREEMENT:\nIn consideration of the covenants contained herein and the disclosure of the confidentia information, the parties agree as follows:\n1.\nDefinition of Confidential Information. For purposes of this Agreement, the term "Confidential Information" includes, but is not limited to,\nany information of the disclosing party, whether disclosed orally, in writing, on computer disc or tape or any other method, including any\nformula, pattern, compilation, program, device, method, technique or process that: (i) derives independent economic value, actual or potential,\nfrom not being generally known to, and not being readily ascertainable through proper means by, other persons who can obtain economic value\nfrom its disclosure or use, and (ii) is the subject of efforts by the disclosing party that are reasonable under the circumstances to maintain its\nsecrecy. The receiving party acknowledges that such Confidential Information specifically includes, but is not limited to, trade secrets and\ninformation contained in or relating to computer software programs, technical information, know-how, other confidential processes, information\nwhich relates to the disclosing party's future products, marketing plans or proposals, financial and sales information, subcontractor and employee\nlists,\nexisting, inactive or potential customer lists, and all other customer information. All information which the disclosing party identifies in\na\nconspicuous place as being "confidential" or "trade secret" shall be presumed to be Confidential Information, unless such information meets one\nor more of the tests set forth below in subparagraphs a.-d.\nThe term Confidential Information as used in this Agreement shall not include any information:\na. which was in the public domain at the time of disclosure by the disclosing party to the receiving party;\n-1-\nb. which is published or otherwise comes into the public domain after its disclosure to the receiving party through no violation of this\nAgreement by the receiving party;\nC. which is disclosed to the receiving party by a third party not under an obligation of confidence to the disclosing party;\nd. which was already in the possession of the receiving party without restriction and prior to disclosure hereunder;\ne. which, as evidenced by contemporaneous documentation, is developed by the receiving party independently of Confidential\nInformation disclosed by disclosing party and without breach of this Agreement; or\nf. which is required to be disclosed by any law or governmental regulation or produced under order of a court of competent jurisdiction;\nprovided, however, that the receiving party provides the disclosing party written notice of such request or order as soon as reasonably\npracticable so that the disclosing party may attempt to limit such disclosure.\nThis\nAgreement shall govern disclosure of Confidential information for a period of one year from the date hereof, and the obligations of\nconfidentiality and non-use set forth below shall survive for a period of THREE (3) years from the effective date of this Agreement.\n2. Warranties. The receiving party agrees and warrants to the disclosing party as follows with respect to all Confidential Information received\nor learned by it, regardless whether or not a contract is ultimately executed between the parties:\na. The receiving party will treat as confidential all Confidential Information made available to the receiving party or to any employee,\nagent or representative of the receiving party.\nb. The receiving party shall protect the Confidential Information from unauthorized use or disclosure by using the same degree of care as\nthe receiving party uses to protect its own confidential information of a like nature, but no less than a reasonable degree of care.\nC. The receiving party will maintain the Confidential Information in a secure place and limit access to the Confidential Information to\nthose employees, agents and representatives of the receiving party to whom it is necessary to disclose the Confidential Information in\nfurtherance of the receiving party's investigations and negotiations regarding the potential acquisition of the disclosing party and from whom\nthe receiving party has received a written agreement in which the employee promises to maintain the confidentiality of and not to wrongfully\nuse the Confidential Information.\nd. The receiving party and its employees, agents and representatives will not copy, disclose to unauthorized parties or use any\nConfidential Information for any purpose other than to further the receiving party's investigations regarding the potential business\nrelationship with the disclosing party.\ne. If negotiations are terminated and no contract is executed, the receiving party will promptly deliver to the disclosing party all copies of\ndocuments containing Confidential\n-2-\nInformation disclosed to the receiving party, whether or not such documents were prepared by the disclosing party.\nf. The receiving party assumes all liability for any breach of the terms of this Agreement by it or any of its employees, agents or\nrepresentatives.\ng. The receiving party will use Confidential Information solely for the purpose of discussing and evaluating the Transaction, and for no\nother purpose.\n3. No License. Nothing contained in this Agreement shall be construed as creating any licenses to use the Confidential Information or other\nintellectual property of the disclosing party except as expressly stated in this Agreement.\n4. Each party understands that each party is a publicly-held company and that all or part of each party's Confidential Information may\nconstitute material non-public information under the United States securities laws, and each party acknowledges that it is aware that the United\nStates securities laws prohibit any person who is in the possession of material non-public information about a company from purchasing or\nselling that company's securities in reliance upon such information or from communicating such information to any other person or entity under\ncircumstances in which it is reasonably foreseeable that such person or entity is likely to purchase or sell such securities in reliance upon such\ninformation. Each party represents that, as of the date of this agreement, neither party nor its controlled affiliates, nor anyone acting on its or their\nbehalf in connection with the Transaction, has acquired record or beneficial ownership of any voting securities of the other party or of any\nsecurities convertible or exchangeable into or exercisable for voting securities of the other party, and each Party agrees that neither it, nor any of\nits directors, officers or employees who have been provided with the Confidential Information will perform any purchase, sale or other transfer of\nany of the securities of the other party in violation of United States securities laws.\n5. Nonsolicitation of Employees. The receiving party agrees for a period of one year (a) from end of discussions between the parties if no\nwritten agreement is ultimately entered into between the parties, or (b) from the expiration or termination of the written agreement ultimately\nentered into between the parties, to refrain from directly soliciting or seeking to hire any employee of the disclosing party about whom receiving\nparty received Confidential Information hereunder. Nothing herein shall prohibit either party from hiring or seeking to hire any employee of\ndisclosing party who independently responds to a general advertisement placed by the receiving party; provided that such receiving party does\nnot have any contact or conversations with such employee relating to such advertisement or employment prior to his or her response to such\nadvertisement.\n6. Remedy Upon Violation. The receiving party agrees and understands that any unauthorized use or disclosure of the Confidential\nInformation or improper solicitation of the disclosing party's employees shall cause substantial harm to the disclosing party and that the\ndisclosing party would not have an adequate remedy at law for such breach of the terms of this Agreement by the receiving party or any of\nthe\ndisclosing party's employees, agents or representatives. The receiving party agrees that the disclosing party shall be entitled to an injunction with\nthe posting of the minimum allowable bond, enjoining or restraining the receiving party from any violation or violations of this Agreement and\nthe receiving party hereby consents to the issuance of such injunction. The disclosing party's rights to such equitable remedies shall be in\naddition to all other rights or remedies which the disclosing party may have under this Agreement or under applicable law.\n7. Binding Effect. The failure of the parties to enter into a contractual arrangement or the return by the receiving party of documents\ncontaining Confidential Information in accordance with Paragraph 2(e) shall not relieve the receiving party of its obligations under this\nAgreement. This\n-3-\nAgreement shall be binding upon and inure to the benefit of the parties, their respective successors and assigns. Neither this Agreement nor the\ndisclosure or receipt of Confidential Information shall constitute or imply a commitment by either party with respect to the Transaction, present\nor future business agreements, or any other subject matter not expressly set forth herein.\n8. Modification and Waiver. No purported amendment, modification or waiver of any provision of this Agreement shall be binding unless set\nforth in a written document signed by all parties (in the case of amendments and modifications) or by the party to be charged thereby (in the case\nof waivers). Any waiver shall be limited to the circumstance or event specifically referenced in the written waiver document and shall be deemed\nto be a waiver or any other term of this Agreement or of the same circumstance or event upon any recurrence thereof.\n9. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware, without application\nof its conflict of laws provisions.\nThe parties have caused this Agreement to be executed in a manner appropriate to each to be effective as of the date set forth on the first page\nof this Agreement.\nDATAKEY, INC.\nSafeNet, Inc.\n("Datakey")\n(the "Company")\nBy\n/s/ David A. Feste\nBy\n/s/ Carole D. Argo\nName\nDavid A. Feste\nName\nCarole D. Argo\nIts\nChief Financial Officer\nIts\nPresident\n-4-	EX-99.D.4 13 w01967iexv99wdw4.htm EXHIBIT (D)(4)\nDATAKEY, INC.\nMUTUAL NONDISCLOSURE AGREEMENT\nEFFECTIVE DATE: August 3, 2004\nPARTIES:\nSafeNet, Inc (the “Company”)\n4690 Millennium Drive\nBelcamp, MD 21017\nDatakey, Inc. (“Datakey”)\n407 West Travelers Trail\nBurnsville, MN 55337-2558\nRECITALS:\nA. The Company and Datakey are commencing discussions regarding a potential corporate transaction (the “Transaction”).\nB. In order to facilitate the negotiations regarding such Transaction, each party may disclose to the other party certain information, including\nconfidential information, owned by the disclosing party which the disclosing party is willing to disclose to the other party in reliance on the\nexecution of this Agreement.\nAGREEMENT:\nIn consideration of the covenants contained herein and the disclosure of the confidential information, the parties agree as follows:\n1. Definition of Confidential Information. For purposes of this Agreement, the term “Confidential Information” includes, but is not limited to,\nany information of the disclosing party, whether disclosed orally, in writing, on computer disc or tape or any other method, including any\nformula, pattern, compilation, program, device, method, technique or process that: (i) derives independent economic value, actual or potential,\nfrom not being generally known to, and not being readily ascertainable through proper means by, other persons who can obtain economic value\nfrom its disclosure or use, and (ii) is the subject of efforts by the disclosing party that are reasonable under the circumstances to maintain its\nsecrecy. The receiving party acknowledges that such Confidential Information specifically includes, but is not limited to, trade secrets and\ninformation contained in or relating to computer software programs, technical information, know-how, other confidential processes, information\nwhich relates to the disclosing party’s future products, marketing plans or proposals, financial and sales information, subcontractor and employee\nlists, existing, inactive or potential customer lists, and all other customer information. All information which the disclosing party identifies in a\nconspicuous place as being “confidential” or “trade secret” shall be presumed to be Confidential Information, unless such information meets one\nor more of the tests set forth below in subparagraphs a. - d .\nThe term Confidential Information as used in this Agreement shall not include any information:\na. which was in the public domain at the time of disclosure by the disclosing party to the receiving party;\n-1-\nb. which is published or otherwise comes into the public domain after its disclosure to the receiving party through no violation of this\nAgreement by the receiving party;\nc. which is disclosed to the receiving party by a third party not under an obligation of confidence to the disclosing party;\nd. which was already in the possession of the receiving party without restriction and prior to disclosure hereunder;\ne. which, as evidenced by contemporaneous documentation, is developed by the receiving party independently of Confidential\nInformation disclosed by disclosing party and without breach of this Agreement; or\nf. which is required to be disclosed by any law or governmental regulation or produced under order of a court of competent jurisdiction;\nprovided, however, that the receiving party provides the disclosing party written notice of such request or order as soon as reasonably\npracticable so that the disclosing party may attempt to limit such disclosure.\nThis Agreement shall govern disclosure of Confidential information for a period of one year from the date hereof, and the obligations of\nconfidentiality and non-use set forth below shall survive for a period of THREE (3) years from the effective date of this Agreement.\n2. Warranties. The receiving party agrees and warrants to the disclosing party as follows with respect to all Confidential Information received\nor learned by it, regardless whether or not a contract is ultimately executed between the parties:\na. The receiving party will treat as confidential all Confidential Information made available to the receiving party or to any employee,\nagent or representative of the receiving party.\nb. The receiving party shall protect the Confidential Information from unauthorized use or disclosure by using the same degree of care as\nthe receiving party uses to protect its own confidential information of a like nature, but no less than a reasonable degree of care.\nc. The receiving party will maintain the Confidential Information in a secure place and limit access to the Confidential Information to\nthose employees, agents and representatives of the receiving party to whom it is necessary to disclose the Confidential Information in\nfurtherance of the receiving party’s investigations and negotiations regarding the potential acquisition of the disclosing party and from whom\nthe receiving party has received a written agreement in which the employee promises to maintain the confidentiality of and not to wrongfully\nuse the Confidential Information.\nd. The receiving party and its employees, agents and representatives will not copy, disclose to unauthorized parties or use any\nConfidential Information for any purpose other than to further the receiving party’s investigations regarding the potential business\nrelationship with the disclosing party.\ne. If negotiations are terminated and no contract is executed, the receiving party will promptly deliver to the disclosing party all copies of\ndocuments containing Confidential\n-2-\nInformation disclosed to the receiving party, whether or not such documents were prepared by the disclosing party.\nf. The receiving party assumes all liability for any breach of the terms of this Agreement by it or any of its employees, agents or\nrepresentatives.\ng. The receiving party will use Confidential Information solely for the purpose of discussing and evaluating the Transaction, and for no\nother purpose.\n3. No License. Nothing contained in this Agreement shall be construed as creating any licenses to use the Confidential Information or other\nintellectual property of the disclosing party except as expressly stated in this Agreement.\n4. Each party understands that each party is a publicly-held company and that all or part of each party’s Confidential Information may\nconstitute material non-public information under the United States securities laws, and each party acknowledges that it is aware that the United\nStates securities laws prohibit any person who is in the possession of material non-public information about a company from purchasing or\nselling that company’s securities in reliance upon such information or from communicating such information to any other person or entity under\ncircumstances in which it is reasonably foreseeable that such person or entity is likely to purchase or sell such securities in reliance upon such\ninformation. Each party represents that, as of the date of this agreement, neither party nor its controlled affiliates, nor anyone acting on its or their\nbehalf in connection with the Transaction, has acquired record or beneficial ownership of any voting securities of the other party or of any\nsecurities convertible or exchangeable into or exercisable for voting securities of the other party, and each Party agrees that neither it, nor any of\nits directors, officers or employees who have been provided with the Confidential Information will perform any purchase, sale or other transfer of\nany of the securities of the other party in violation of United States securities laws.\n5. Nonsolicitation of Employees. The receiving party agrees for a period of one year (a) from end of discussions between the parties if no\nwritten agreement is ultimately entered into between the parties, or (b) from the expiration or termination of the written agreement ultimately\nentered into between the parties, to refrain from directly soliciting or seeking to hire any employee of the disclosing party about whom receiving\nparty received Confidential Information hereunder. Nothing herein shall prohibit either party from hiring or seeking to hire any employee of\ndisclosing party who independently responds to a general advertisement placed by the receiving party; provided that such receiving party does\nnot have any contact or conversations with such employee relating to such advertisement or employment prior to his or her response to such\nadvertisement.\n6. Remedy Upon Violation. The receiving party agrees and understands that any unauthorized use or disclosure of the Confidential\nInformation or improper solicitation of the disclosing party’s employees shall cause substantial harm to the disclosing party and that the\ndisclosing party would not have an adequate remedy at law for such breach of the terms of this Agreement by the receiving party or any of the\ndisclosing party’s employees, agents or representatives. The receiving party agrees that the disclosing party shall be entitled to an injunction with\nthe posting of the minimum allowable bond, enjoining or restraining the receiving party from any violation or violations of this Agreement and\nthe receiving party hereby consents to the issuance of such injunction. The disclosing party’s rights to such equitable remedies shall be in\naddition to all other rights or remedies which the disclosing party may have under this Agreement or under applicable law.\n7. Binding Effect. The failure of the parties to enter into a contractual arrangement or the return by the receiving party of documents\ncontaining Confidential Information in accordance with Paragraph 2(e) shall not relieve the receiving party of its obligations under this\nAgreement. This\n-3-\nAgreement shall be binding upon and inure to the benefit of the parties, their respective successors and assigns. Neither this Agreement nor the\ndisclosure or receipt of Confidential Information shall constitute or imply a commitment by either party with respect to the Transaction, present\nor future business agreements, or any other subject matter not expressly set forth herein.\n8. Modification and Waiver. No purported amendment, modification or waiver of any provision of this Agreement shall be binding unless set\nforth in a written document signed by all parties (in the case of amendments and modifications) or by the party to be charged thereby (in the case\nof waivers). Any waiver shall be limited to the circumstance or event specifically referenced in the written waiver document and shall be deemed\nto be a waiver or any other term of this Agreement or of the same circumstance or event upon any recurrence thereof.\n9. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Delaware, without application\nof its conflict of laws provisions.\nThe parties have caused this Agreement to be executed in a manner appropriate to each to be effective as of the date set forth on the first page\nof this Agreement.\nDATAKEY, INC.\nSafeNet, Inc.\n(“Datakey”)\n(the “Company”)\nBy\n/s/ David A. Feste\nBy\n/s/ Carole D. Argo\nName David A. Feste\nName\nCarole D. Argo\nIts\nChief Financial Officer\nIts\nPresident\n-4-
+55f15a568c73cf6dc329af7786012d7e.pdf	effective_date jurisdiction party term	EX-10.2 3 d234488dex102.htm FORM OF EMPLOYEE CONFIDENTIALITY AND RESTRICTIVE COVENANT\nAGREEMENT\nExhibit 10.2\nDelcath Systems, Inc.\nEMPLOYEE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT\nAGREEMENT (“Agreement”) made this\nday of\n20 , between Delcath Systems, Inc., and its predecessors,\ndivisions, affiliates, successors, and assigns (the “Company”), and\n, residing at\n(“Employee”).\nWHEREAS, the Company wishes to obtain reasonable protection of its confidential business and technical information which it has\ndeveloped, acquired and/or is or may be developed or acquired by the Company at substantial expenses, and\nWHEREAS, the Company wishes to obtain reasonable protection against unfair competition during the Employees employment by the\nCompany and following termination of the Employee’s employment by the Company and to further protect against unfair use of its confidential\nbusiness and technical information the Company desires to have Employee execute this Agreement, and\nWHEREAS, the Employee is willing to execute this Agreement and grant the Company the benefits of the restrictive covenants contained\nherein.\nFor and in consideration of the continued employment of Employee by the Company and compensation and benefits paid to Employee and\nhereafter to be paid to Employee by the Company, Employee agrees as follows:\n1. NO PRIOR CONFLICTING CONTRACTS .\nEmployee represents that Employee’s employment or potential employment by the Company is not in violation of any contract or covenants to\nwhich Employee is a party with any employer, entity, or person. Employee agrees not to use or disclose in Employee’s work with the Company any\nsecret or confidential information of others, including prior employers, unless such information is rightfully possessed by the Company.\n2. DEFINITIONS\n(a) Confidential Information. For purposes of this Agreement, the term “Confidential Information” means information that is not\ngenerally known to the public and that is used, developed, or obtained by the Company in connection with its business, including, but not limited to,\ninformation, observations, and data obtained by Employee while employed by the Company thereof concerning (i) the business or affairs of the\nCompany, (ii) products or services, (iii) fees, costs, compensation, and pricing structures, (iv) designs, (v) specifications (including, but not limited\nto, supplier specifications); (vi) clinical trial data; (vii) analyses, (viii) drawings, photographs and reports, (ix) computer software, including\noperating systems, applications, and program listings, (x) flow charts, manuals, and documentation, (xi) data or data bases, (xii) accounting and\nbusiness methods, (xiii) inventions, devices, new developments, methods and processes, whether patentable or unpatentable and whether or not\nreduced to practice, (xiv)\ncustomers and clients and customer or client lists, (xv) other copyrightable works, (xvi) all production methods, processes, technology, and trade\nsecrets, and (xvii) all similar and related information in whatever form. Confidential Information will not include any information that has been\npublished (other than a disclosure by Employee in breach of this Agreement) in a form generally available to the public prior to the date Employee\nproposes to disclose or use such information. Confidential Information will not be deemed to have been published merely because individual\nportions of the information have been separately published, but only if all material features comprising such information have been published in\ncombination.\n(b) Work Product. For purposes of this Agreement, the term “Work Product” means all inventions, innovations, improvements, technical\ninformation, systems, software developments, discoveries, methods, designs, processes, analyses, drawings, reports, service marks, trademarks, trade\nnames, logos, and all similar or related information (whether patentable or unpatentable, copyrightable, registerable as a trademark, reduced to\nwriting, or otherwise) that relates to the Company’s actual or anticipated business, research and development, or existing or future products or\nservices and which are conceived, developed, or made by Employee (whether or not during usual business hours, whether or not by the use of the\nfacilities of the Company, and whether or not alone or in conjunction with any other person) while employed by the Company (including those\nconceived, developed, or made prior to the effective date of this Agreement) together with all patent applications, letters patent, trademark, trade\nname and service mark applications or registrations, copyrights and reissues thereof that may be granted for or upon any of the foregoing.\n3. CONFIDENTIALITY REQUIREMENTS.\n(a) Employee acknowledges and agrees that, as a result of the nature of the Company’s business and the nature of Employee’s position\nwith the Company, Employee has been or will come into contact with, and will have access to, Confidential Information belonging to the Company.\nEmployee acknowledges that the aforementioned Confidential Information is unique and not generally known to the public with respect to the\nCompany and has been developed, acquired, and compiled by the Company at its great effort and expense.\n(b) Employee further acknowledges and agrees that any disclosure or use of the Company’s Confidential Information by Employee,\nother than in connection with the Company’s business or as specifically authorized by the Company, will be or may become highly detrimental to the\nbusiness of the Company, and serious loss of business and damage to the Company will or may result.\n(c) Accordingly, Employee agrees to hold all Confidential Information in the strictest confidence and agrees to safeguard and not use,\ndisclose, divulge or reveal the Company’s Confidential Information to any person, either during Employee’s employment or at any time after the\ntermination of Employee’s employment with the Company, without specific prior written authorization from an executive officer of the Company. If\nEmployee is an executive officer of the Company, Employee must obtain prior written authorization from the Chief Executive Officer.\n(d) Employee further agrees to promptly deliver to the Company, upon the termination of Employee’s employment with the Company, or\nat any other time as the Company\n2\nmay so request, all Company property, including but not limited to laptops, personal digital assistants (PDAs), and cell phones, and all\ndocumentation, memoranda, notes, customer lists, records, reports, blueprints, software, drawings, computer disks, programs, and any other\ndocuments (and all copies thereof) containing Confidential Information or relating to the Company’s business and any property associated therewith,\nwhich Employee may then possess or have under Employee’s control.\n4. WORK PRODUCT REQUIREMENTS.\n(a) All Work Product that Employee may have conceived, developed, made, discovered, invented or originated during his/her\nemployment by the Company prior to the Effective Date, during Employee’s employment with the Company, or at any time in the period of twelve\n(12) months after termination of Employee’s employment, shall be deemed work for hire and shall be the exclusive property of the Company, as\napplicable. Employee hereby assigns all of Employee’s right, title, and interest in and to such Work Product to the Company, including all\nintellectual property rights therein.\n(b) Employee shall promptly disclose all Work Product to the Company, shall execute at the request of the Company any assignments or\nother documents the Company may deem necessary to protect or perfect its rights therein, and shall assist the Company, at the Company’s expense,\nin obtaining, defending, and enforcing the Company’s rights therein. Employee hereby appoints the Company as Employee’s attorney-in-fact to\nexecute on Employee’s behalf any assignments or other documents deemed necessary by the Company to protect or perfect the Company’s rights to\nany Work Product.\n5. NON-COMPETITION.\n(a) Employee acknowledges and agrees that the Company has invested and will invest substantial time, effort, resources and finances in\nthe research, development and commercialization of the Company’s product(s) and is engaged in a highly competitive business and that, by virtue of\nthe position in which Employee is employed, he or she will help create and will be given access to Confidential Information. If the Employee\nengages in any business that is competitive with the Company it will cause great and irreparable harm to the Company, the monetary loss from\nwhich would be difficult, if not impossible, to measure.\n(b) Consequently, Employee covenants and agrees that so long as Employee is employed by the Company, and for a period of one\n(1) year following termination of Employee’s employment with the Company, whether such termination is voluntary or involuntary, Employee will\nnot, directly or indirectly (whether as an individual for Employee’s own account, or as a partner, joint venturer, employee, agent, consultant or sales\nrepresentative, officer, director or shareholder of any entity or otherwise), engage in, enter the employ of, render any services to, have any ownership\ninterest in, nor participate in the financing, operation, management or control of, any Competing Business, or in any manner compete with the\nCompany, in any country in which the Company does business, without the Company’s specific written consent to do so. “Competing Business”\nshall mean any enterprise, activity, or business that competes with the Company in any of its or their material businesses, including, without\nlimitation, the research, design, development, identification, manufacture, marketing, or sales of targeted regional cancer or infectious disease drug\ndelivery systems.\n3\nThe restrictions contained in this section shall not prevent Employee from accepting employment with a large diversified organization with separate\nand distinct divisions that do not compete, directly or indirectly, with the Company, as long as prior to accepting such employment the Company\nreceives separate written assurances from the prospective employer and from Employee, satisfactory to the Company, to the effect that Employee\nwill not render any services, directly or indirectly, to any division or business unit that competes, directly or indirectly, with the Company. During the\nrestrictive period set forth in this section, Employee will inform any new employer, prior to accepting employment, of the existence of this\nAgreement and provide such employer with a copy of this Agreement.\nNothing in this Agreement shall be construed to prevent or otherwise restrict or limit the Employee from owning shares and investing (as a passive\ninvestor), directly or indirectly, in the stock of any publicly traded competing corporation whose shares are listed on a national securities exchange or\ntraded in the over-the-counter market, but only if Employee does not own more than an aggregate of one percent (1%) of the outstanding stock of\nsuch corporation.\n6. NON-SOLICITATION OF CUSTOMERS AND EMPLOYEES.\n(a) Employee acknowledges and agrees that, during the course of Employee’s employment by the Company, Employee may come into\ncontact with and become aware of some, most, or all of the Company’s customers and employees, past, present, and prospective, and their names\nand addresses, as well as other information about the customers and employees not publicly available. Employee further acknowledges and agrees\nthat the loss of such customers and employees may cause the Company great and irreparable harm.\n(b) Consequently, Employee covenants and agrees that, if Employee’s employment with the Company terminates, whether such\ntermination is voluntary or involuntary, Employee will not, for a period of one (1) year following such termination, directly or indirectly (whether as\nan individual for Employee’s own account, or as a partner, joint venturer, employee, agent, consultant or sales representative, officer, director or\nshareholder of any entity or otherwise), solicit or attempt to solicit to do business that would compete with the Company in any of its or their\nmaterial businesses, including, without limitation, the research, design, development, identification, manufacture, marketing, or sales of targeted\nregional cancer or infectious disease drug delivery systems.\n(c) Employee also agrees that, for a period of one (1) year following termination of Employee’s employment with the Company, whether\nsuch termination is voluntary or involuntary, Employee will not, directly or indirectly (whether as an individual for Employee’s own account, or as a\npartner, joint venturer, employee, agent, consultant or sales representative, officer, director or shareholder of any entity or otherwise), solicit or\nattempt to solicit any then current employee of the Company to leave employee’s employment with the Company to become employed by any\nperson, firm, corporation, or other entity.\n7. ENFORCEMENT OF COVENANTS.\n(a) Employee acknowledges that a breach by Employee of any of the terms of this Agreement will result in material, irreparable injury to\nthe Company for which any remedy at law will not be adequate. Moreover, it will not be possible to measure damages for such\n4\ninjuries precisely and, in the event of such a breach or threat of breach, the Company shall be entitled to obtain a temporary restraining order and/or a\npreliminary or permanent injunction restraining Employee from engaging in activities prohibited by this Agreement, together with such other relief\nas may be required to enforce specifically any of the terms of this Agreement. Employee consents to such temporary, preliminary, or permanent\ninjunctive relief. Nothing in this Agreement shall be construed as prohibiting the Company from pursuing any other available remedies for breach or\nthreatened breach of this Agreement, including recovery of damages, court costs, and attorneys’ fees.\n(b) If the Company is required to enforce any of its rights hereunder through legal proceedings, Employee shall reimburse the Company\nfor all reasonable costs, expenses, and attorneys’ fees incurred by the Company in connection with the enforcement of its rights hereunder.\n(c) Employee understands and agrees that nothing in this Agreement creates a contract, express or implied, of employment for any\nspecified period. Employee’s employment may be terminated by Employee or the Company at any time and for any reason or no reason, unless\nexpressly limited by a separate writing executed by both the Company and Employee.\n(d) If one or more provisions of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or\nunenforceable, Employee agrees the validity, legality, and enforcement of the remaining provisions of the Agreement shall not in any way be\naffected or impaired. Employee also agrees that the language contained in Sections “3”, “4”, “5” and “6” of the Agreement is reasonable in scope\nand that Employee will not raise any issue regarding the reasonableness of the Agreement as a defense in any proceeding to enforce the Agreement.\nIf a court determines that the language contained in Sections “3”, “4”, “5” and “6” of the Agreement is not reasonable, the parties agree that the court\nmay modify such provisions to the maximum period of restriction, activities, term, or geographic scope that the court deems reasonable.\n8. WAIVER OF BREACH.\nThe waiver by the Company of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver of any\nsubsequent breach by Employee, and the failure of the Company to take action against any other employee(s) for similar breach(es) on their part,\nshall not be construed as a waiver of a breach by Employee.\n9. AGREEMENT BINDING .\nThis Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Company, and the heirs, executors, and\nadministrators of Employee. The Company shall have the right to transfer and assign all or any portion of its rights and obligations hereunder to any\nthird party.\n10. APPLICABLE LAW AND CHOICE OF FORUM.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New York. The parties, being desirous of\nhaving any disputes resolved in a forum having a substantial body of law and experience with matters contained herein, and the parties\n5\nhaving a substantial connection with the State of New York, agree that any action or proceeding with respect to this Agreement shall be brought in a\nstate or federal court located within the State of New York. The parties consent to the personal jurisdiction of the state and federal courts of New\nYork should a legal action to enforce this Agreement be necessary.\n11. MODIFICATION.\nThis Agreement may only be modified by the express written consent of both parties.\n12. ENTIRE AGREEMENT .\nThis Agreement constitutes the entire understanding between Company and Employee with respect to the subject matter hereof and supersedes\nand replaces all prior contracts, agreements and understandings related to the same subject matter between the parties.\n13. SECTION HEADINGS\nThe section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or\ndescribe the scope or extent of such section or in any way affect such section.\nI have read and understand this Agreement and I agree to abide by its terms.\n[EMPLOYEE]\nDELCATH SYSTEMS, INC.\n(Signature)\n(Signature)\nDate\nName\nWitness\nTitle\nDate\n6	EX-10.2 3 d234488dex102.htm FORM OF EMPLOYEE CONFIDENTIALITY AND RESTRICTIVE COVENANT\nAGREEMENT\nExhibit 10.2\nDelcath Systems, Inc.\nEMPLOYEE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT\nAGREEMENT (“Agreement”) made this day of 20__, between Delcath Systems, Inc., and its predecessors,\ndivisions, affiliates, successors, and assigns (the “Company”), and , residing at\n(“Employee”).\nWHEREAS, the Company wishes to obtain reasonable protection of its confidential business and technical information which it has\ndeveloped, acquired and/or is or may be developed or acquired by the Company at substantial expenses, and\nWHEREAS, the Company wishes to obtain reasonable protection against unfair competition during the Employees employment by the\nCompany and following termination of the Employee’s employment by the Company and to further protect against unfair use of its confidential\nbusiness and technical information the Company desires to have Employee execute this Agreement, and\nWHEREAS, the Employee is willing to execute this Agreement and grant the Company the benefits of the restrictive covenants contained\nherein.\nFor and in consideration of the continued employment of Employee by the Company and compensation and benefits paid to Employee and\nhereafter to be paid to Employee by the Company, Employee agrees as follows:\n1. NO PRIOR CONFLICTING CONTRACTS.\nEmployee represents that Employee’s employment or potential employment by the Company is not in violation of any contract or covenants to\nwhich Employee is a party with any employer, entity, or person. Employee agrees not to use or disclose in Employee’s work with the Company any\nsecret or confidential information of others, including prior employers, unless such information is rightfully possessed by the Company.\n2. DEFINITIONS\n(a) Confidential Information. For purposes of this Agreement, the term “Confidential Information” means information that is not\ngenerally known to the public and that is used, developed, or obtained by the Company in connection with its business, including, but not limited to,\ninformation, observations, and data obtained by Employee while employed by the Company thereof concerning (i) the business or affairs of the\nCompany, (ii) products or services, (iii) fees, costs, compensation, and pricing structures, (iv) designs, (v) specifications (including, but not limited\nto, supplier specifications); (vi) clinical trial data; (vii) analyses, (viii) drawings, photographs and reports, (ix) computer software, including\noperating systems, applications, and program listings, (x) flow charts, manuals, and documentation, (xi) data or data bases, (xii) accounting and\nbusiness methods, (xiii) inventions, devices, new developments, methods and processes, whether patentable or unpatentable and whether or not\nreduced to practice, (xiv)\ncustomers and clients and customer or client lists, (xv) other copyrightable works, (xvi) all production methods, processes, technology, and trade\nsecrets, and (xvii) all similar and related information in whatever form. Confidential Information will not include any information that has been\npublished (other than a disclosure by Employee in breach of this Agreement) in a form generally available to the public prior to the date Employee\nproposes to disclose or use such information. Confidential Information will not be deemed to have been published merely because individual\nportions of the information have been separately published, but only if all material features comprising such information have been published in\ncombination.\n(b) Work Product. For purposes of this Agreement, the term “Work Product” means all inventions, innovations, improvements, technical\ninformation, systems, software developments, discoveries, methods, designs, processes, analyses, drawings, reports, service marks, trademarks, trade\nnames, logos, and all similar or related information (whether patentable or unpatentable, copyrightable, registerable as a trademark, reduced to\nwriting, or otherwise) that relates to the Company’s actual or anticipated business, research and development, or existing or future products or\nservices and which are conceived, developed, or made by Employee (whether or not during usual business hours, whether or not by the use of the\nfacilities of the Company, and whether or not alone or in conjunction with any other person) while employed by the Company (including those\nconceived, developed, or made prior to the effective date of this Agreement) together with all patent applications, letters patent, trademark, trade\nname and service mark applications or registrations, copyrights and reissues thereof that may be granted for or upon any of the foregoing.\n3. CONFIDENTIALITY REQUIREMENTS.\n(a) Employee acknowledges and agrees that, as a result of the nature of the Company’s business and the nature of Employee’s position\nwith the Company, Employee has been or will come into contact with, and will have access to, Confidential Information belonging to the Company.\nEmployee acknowledges that the aforementioned Confidential Information is unique and not generally known to the public with respect to the\nCompany and has been developed, acquired, and compiled by the Company at its great effort and expense.\n(b) Employee further acknowledges and agrees that any disclosure or use of the Company’s Confidential Information by Employee,\nother than in connection with the Company’s business or as specifically authorized by the Company, will be or may become highly detrimental to the\nbusiness of the Company, and serious loss of business and damage to the Company will or may result.\n(c) Accordingly, Employee agrees to hold all Confidential Information in the strictest confidence and agrees to safeguard and not use,\ndisclose, divulge or reveal the Company’s Confidential Information to any person, either during Employee’s employment or at any time after the\ntermination of Employee’s employment with the Company, without specific prior written authorization from an executive officer of the Company. If\nEmployee is an executive officer of the Company, Employee must obtain prior written authorization from the Chief Executive Officer.\n(d) Employee further agrees to promptly deliver to the Company, upon the termination of Employee’s employment with the Company, or\nat any other time as the Company\nmay so request, all Company property, including but not limited to laptops, personal digital assistants (PDAs), and cell phones, and all\ndocumentation, memoranda, notes, customer lists, records, reports, blueprints, software, drawings, computer disks, programs, and any other\ndocuments (and all copies thereof) containing Confidential Information or relating to the Company’s business and any property associated therewith,\nwhich Employee may then possess or have under Employee’s control.\n4.  WORK PRODUCT REQUIREMENTS.\n(a) All Work Product that Employee may have conceived, developed, made, discovered, invented or originated during his/her\nemployment by the Company prior to the Effective Date, during Employee’s employment with the Company, or at any time in the period of twelve\n(12) months after termination of Employee’s employment, shall be deemed work for hire and shall be the exclusive property of the Company, as\napplicable. Employee hereby assigns all of Employee’s right, title, and interest in and to such Work Product to the Company, including all\nintellectual property rights therein.\n(b) Employee shall promptly disclose all Work Product to the Company, shall execute at the request of the Company any assignments or\nother documents the Company may deem necessary to protect or perfect its rights therein, and shall assist the Company, at the Company’s expense,\nin obtaining, defending, and enforcing the Company’s rights therein. Employee hereby appoints the Company as Employee’s attorney-in-fact to\nexecute on Employee’s behalf any assignments or other documents deemed necessary by the Company to protect or perfect the Company’s rights to\nany Work Product.\n5. NON-COMPETITION.\n(a) Employee acknowledges and agrees that the Company has invested and will invest substantial time, effort, resources and finances in\nthe research, development and commercialization of the Company’s product(s) and is engaged in a highly competitive business and that, by virtue of\nthe position in which Employee is employed, he or she will help create and will be given access to Confidential Information. If the Employee\nengages in any business that is competitive with the Company it will cause great and irreparable harm to the Company, the monetary loss from\nwhich would be difficult, if not impossible, to measure.\n(b) Consequently, Employee covenants and agrees that so long as Employee is employed by the Company, and for a period of one\n(1) year following termination of Employee’s employment with the Company, whether such termination is voluntary or involuntary, Employee will\nnot, directly or indirectly (whether as an individual for Employee’s own account, or as a partner, joint venturer, employee, agent, consultant or sales\nrepresentative, officer, director or shareholder of any entity or otherwise), engage in, enter the employ of, render any services to, have any ownership\ninterest in, nor participate in the financing, operation, management or control of, any Competing Business, or in any manner compete with the\nCompany, in any country in which the Company does business, without the Company’s specific written consent to do so. “Competing Business”\nshall mean any enterprise, activity, or business that competes with the Company in any of its or their material businesses, including, without\nlimitation, the research, design, development, identification, manufacture, marketing, or sales of targeted regional cancer or infectious disease drug\ndelivery systems.\nThe restrictions contained in this section shall not prevent Employee from accepting employment with a large diversified organization with separate\nand distinct divisions that do not compete, directly or indirectly, with the Company, as long as prior to accepting such employment the Company\nreceives separate written assurances from the prospective employer and from Employee, satisfactory to the Company, to the effect that Employee\nwill not render any services, directly or indirectly, to any division or business unit that competes, directly or indirectly, with the Company. During the\nrestrictive period set forth in this section, Employee will inform any new employer, prior to accepting employment, of the existence of this\nAgreement and provide such employer with a copy of this Agreement.\nNothing in this Agreement shall be construed to prevent or otherwise restrict or limit the Employee from owning shares and investing (as a passive\ninvestor), directly or indirectly, in the stock of any publicly traded competing corporation whose shares are listed on a national securities exchange or\ntraded in the over-the-counter market, but only if Employee does not own more than an aggregate of one percent (1%) of the outstanding stock of\nsuch corporation.\n6. NON-SOLICITATION OF CUSTOMERS AND EMPIL.OYEES.\n(a) Employee acknowledges and agrees that, during the course of Employee’s employment by the Company, Employee may come into\ncontact with and become aware of some, most, or all of the Company’s customers and employees, past, present, and prospective, and their names\nand addresses, as well as other information about the customers and employees not publicly available. Employee further acknowledges and agrees\nthat the loss of such customers and employees may cause the Company great and irreparable harm.\n(b) Consequently, Employee covenants and agrees that, if Employee’s employment with the Company terminates, whether such\ntermination is voluntary or involuntary, Employee will not, for a period of one (1) year following such termination, directly or indirectly (whether as\nan individual for Employee’s own account, or as a partner, joint venturer, employee, agent, consultant or sales representative, officer, director or\nshareholder of any entity or otherwise), solicit or attempt to solicit to do business that would compete with the Company in any of its or their\nmaterial businesses, including, without limitation, the research, design, development, identification, manufacture, marketing, or sales of targeted\nregional cancer or infectious disease drug delivery systems.\n(c) Employee also agrees that, for a period of one (1) year following termination of Employee’s employment with the Company, whether\nsuch termination is voluntary or involuntary, Employee will not, directly or indirectly (whether as an individual for Employee’s own account, or as a\npartner, joint venturer, employee, agent, consultant or sales representative, officer, director or shareholder of any entity or otherwise), solicit or\nattempt to solicit any then current employee of the Company to leave employee’s employment with the Company to become employed by any\nperson, firm, corporation, or other entity.\n7.  ENFORCEMENT OF COVENANTS.\n(a) Employee acknowledges that a breach by Employee of any of the terms of this Agreement will result in material, irreparable injury to\nthe Company for which any remedy at law will not be adequate. Moreover, it will not be possible to measure damages for such\n4\ninjuries precisely and, in the event of such a breach or threat of breach, the Company shall be entitled to obtain a temporary restraining order and/or a\npreliminary or permanent injunction restraining Employee from engaging in activities prohibited by this Agreement, together with such other relief\nas may be required to enforce specifically any of the terms of this Agreement. Employee consents to such temporary, preliminary, or permanent\ninjunctive relief. Nothing in this Agreement shall be construed as prohibiting the Company from pursuing any other available remedies for breach or\nthreatened breach of this Agreement, including recovery of damages, court costs, and attorneys’ fees.\n(b) If the Company is required to enforce any of its rights hereunder through legal proceedings, Employee shall reimburse the Company\nfor all reasonable costs, expenses, and attorneys’ fees incurred by the Company in connection with the enforcement of its rights hereunder.\n(c) Employee understands and agrees that nothing in this Agreement creates a contract, express or implied, of employment for any\nspecified period. Employee’s employment may be terminated by Employee or the Company at any time and for any reason or no reason, unless\nexpressly limited by a separate writing executed by both the Company and Employee.\n(d) If one or more provisions of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or\nunenforceable, Employee agrees the validity, legality, and enforcement of the remaining provisions of the Agreement shall not in any way be\naffected or impaired. Employee also agrees that the language contained in Sections “3”, “4”, “5” and “6” of the Agreement is reasonable in scope\nand that Employee will not raise any issue regarding the reasonableness of the Agreement as a defense in any proceeding to enforce the Agreement.\nIf a court determines that the language contained in Sections “3”, “4”, “5” and “6” of the Agreement is not reasonable, the parties agree that the court\nmay modify such provisions to the maximum period of restriction, activities, term, or geographic scope that the court deems reasonable.\n8.  WAIVER OF BREACH.\nThe waiver by the Company of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver of any\nsubsequent breach by Employee, and the failure of the Company to take action against any other employee(s) for similar breach(es) on their part,\nshall not be construed as a waiver of a breach by Employee.\n9. AGREEMENT BINDING.\nThis Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Company, and the heirs, executors, and\nadministrators of Employee. The Company shall have the right to transfer and assign all or any portion of its rights and obligations hereunder to any\nthird party.\n10. APPLICABLE LAW AND CHOICE OF FORUM.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New York. The parties, being desirous of\nhaving any disputes resolved in a forum having a substantial body of law and experience with matters contained herein, and the parties\n5\nhaving a substantial connection with the State of New York, agree that any action or proceeding with respect to this Agreement shall be brought in a\nstate or federal court located within the State of New York. The parties consent to the personal jurisdiction of the state and federal courts of New\nYork should a legal action to enforce this Agreement be necessary.\n11. MODIFICATION.\nThis Agreement may only be modified by the express written consent of both parties.\n12. ENTIRE AGREEMENT.\nThis Agreement constitutes the entire understanding between Company and Employee with respect to the subject matter hereof and supersedes\nand replaces all prior contracts, agreements and understandings related to the same subject matter between the parties.\n13. SECTION HEADINGS\nThe section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or\ndescribe the scope or extent of such section or in any way affect such section.\nI have read and understand this Agreement and I agree to abide by its terms.\n[EMPLOYEE] DELCATH SYSTEMS, INC.\n(Signature) (Signature)\nDate Name\nWitness Title\nDate	EX-10.2 3 d234488dex102.htm FORM OF EMPLOYEE CONFIDENTIALITY AND RESTRICTIVE COVENANT\nAGREEMENT\nExhibit 10.2\nDelcath Systems, Inc.\nEMPLOYEE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT\nAGREEMENT ("Agreement") made this 20 between Delcath Systems, Inc., and its predecessors,\nday of\ndivisions, affiliates, successors, and assigns (the "Company"), and\nresiding at\n("Employee").\nWHEREAS, the Company wishes to obtain reasonable protection of its confidential business and technical information which it has\ndeveloped, acquired and/or is or may be developed or acquired by the Company at substantial expenses, and\nWHEREAS, the Company wishes to obtain reasonable protection against unfair competition during the Employees employment by the\nCompany and following termination of the Employee's employment by the Company and to further protect against unfair use of its confidential\nbusiness and technical information the Company desires to have Employee execute this Agreement, and\nWHEREAS, the Employee is willing to execute this Agreement and grant the Company the benefits of the restrictive covenants contained\nherein.\nFor and in consideration of the continued employment of Employee by the Company and compensation and benefits paid to Employee and\nhereafter to be paid to Employee by the Company, Employee agrees as follows:\n1.\nNO PRIOR CONFLICTING CONTRACTS.\nEmployee represents that Employee's employment or potential employment by the Company is not in violation of any contract or covenants to\nwhich Employee is a party with any employer, entity, or person. Employee agrees not to use or disclose in Employee's work with the Company any\nsecret or confidential information of others, including prior employers, unless such information is rightfully possessed by the Company.\n2. DEFINITIONS\n(a) Confidential Information. For purposes of this Agreement, the term "Confidential Information" means information that is not\ngenerally known to the public and that is used, developed, or obtained by the Company in connection with its business, including, but not limited to,\ninformation, observations, and data obtained by Employee while employed by the Company thereof concerning (i) the business or affairs of the\nCompany, (ii) products or services, (iii) fees, costs, compensation, and pricing structures, (iv) designs, (v) specifications (including, but not limited\nto, supplier specifications); (vi) clinical trial data; (vii) analyses, (viii) drawings, photographs and reports, (ix) computer software, including\noperating systems, applications, and program listings, (x) flow charts, manuals, and documentation, (xi) data or data bases, (xii) accounting and\nbusiness methods, (xiii) inventions, devices, new developments, methods and processes, whether patentable or unpatentable and whether or not\nreduced to practice, (xiv)\ncustomers and clients and customer or client lists, (xv) other copyrightable works, (xvi) all production methods, processes, technology, and trade\nsecrets, and (xvii) all similar and related information in whatever form. Confidential Information will not include any information that has been\npublished (other than a disclosure by Employee in breach of this Agreement) in a form generally available to the public prior to the date Employee\nproposes to disclose or use such information. Confidential Information will not be deemed to have been published merely because individual\nportions of the information have been separately published, but only if all material features comprising such information have been published in\ncombination.\n(b) Work Product. For purposes of this Agreement, the term "Work Product" means all inventions, innovations, improvements, technical\ninformation, systems, software developments, discoveries, methods, designs, processes, analyses, drawings, reports, service marks, trademarks, trade\nnames, logos, and all similar or related information (whether patentable or unpatentable, copyrightable, registerable as a trademark, reduced to\nwriting, or otherwise) that relates to the Company's actual or anticipated business, research and development, or existing or future products or\nservices and which are conceived, developed, or made by Employee (whether or not during usual business hours, whether or not by the use of the\nfacilities of the Company, and whether or not alone or in conjunction with any other person) while employed by the Company (including those\nconceived, developed, or made prior to the effective date of this Agreement) together with all patent applications, letters patent, trademark, trade\nname and service mark applications or registrations, copyrights and reissues thereof that may be granted for or upon any of the foregoing.\n3.\nCONFIDENTIALITY REQUIREMENTS\n(a) Employee acknowledges and agrees that, as a result of the nature of the Company's business and the nature of Employee's position\nwith the Company, Employee has been or will come into contact with, and will have access to, Confidential Information belonging to the Company.\nEmployee acknowledges that the aforementioned Confidential Information is unique and not generally known to the public with respect to the\nCompany and has been developed, acquired, and compiled by the Company at its great effort and expense.\n(b) Employee further acknowledges and agrees that any disclosure or use of the Company's Confidential Information by Employee,\nother than in connection with the Company's business or as specifically authorized by the Company, will be or may become highly detrimental to the\nbusiness of the Company, and serious loss of business and damage to the Company will or may result.\n(c) Accordingly, Employee agrees to hold all Confidential Information in the strictest confidence and agrees to safeguard and not use,\ndisclose, divulge or reveal the Company's Confidential Information to any person, either during Employee's employment or at any time after the\ntermination of Employee's employment with the Company, without specific prior written authorization from an executive officer of the Company. If\nEmployee is an executive officer of the Company, Employee must obtain prior written authorization from the Chief Executive Officer.\n(d) Employee further agrees to promptly deliver to the Company, upon the termination of Employee's employment with the Company, or\nat any other time as the Company\n2\nmay so request, all Company property, including but not limited to laptops, personal digital assistants (PDAs), and cell phones, and all\ndocumentation, memoranda, notes, customer lists, records, reports, blueprints, software, drawings, computer disks, programs, and any other\ndocuments (and all copies thereof) containing Confidential Information or relating to the Company's business and any property associated therewith,\nwhich Employee may then possess or have under Employee's control.\n4.\nWORK PRODUCT REQUIREMENTS.\n(a)\nAll Work Product that Employee may have conceived, developed, made, discovered, invented or originated during his/her\nemployment by the Company prior to the Effective Date, during Employee's employment with the Company, or at any time in the period of twelve\n(12) months after termination of Employee's employment, shall be deemed work for hire and shall be the exclusive property of the Company, as\napplicable. Employee hereby assigns all of Employee's right, title, and interest in and to such Work Product to the Company, including all\nintellectual property rights therein.\n(b) Employee shall promptly disclose all Work Product to the Company, shall execute at the request of the Company any assignments\nor\nother\ndocuments the Company may deem necessary to protect or perfect its rights therein, and shall assist the Company, at the Company's\nexpense,\nin obtaining, defending, and enforcing the Company's rights therein. Employee hereby appoints the Company as Employee's attorney-in-fact to\nexecute on Employee's behalf any assignments or other documents deemed necessary by the Company to protect or perfect the Company's rights to\nany Work Product.\n5. NON-COMPETITION.\n(a) Employee acknowledges and agrees that the Company has invested and will invest substantial time, effort, resources and finances in\nthe research, development and commercialization of the Company's product(s) and is engaged in a highly competitive business and that, by virtue of\nthe position in which Employee is employed, he or she will help create and will be given access to Confidential Information. If the Employee\nengages in any business that is competitive with the Company it will cause great and irreparable harm to the Company, the monetary loss from\nwhich would be difficult, if not impossible, to measure.\n(b) Consequently, Employee covenants and agrees that so long as Employee is employed by the Company, and for a period of one\n(1) year following termination of Employee's employment with the Company, whether such termination is voluntary or involuntary, Employee will\nnot, directly or indirectly (whether as an individual for Employee's own account, or as a partner, joint venturer, employee, agent, consultant\nor\nsales\nrepresentative, officer, director or shareholder of any entity or otherwise), engage in, enter the employ of, render any services to, have any ownership\ninterest in, nor participate in the financing, operation, management or control of, any Competing Business, or in any manner compete with the\nCompany, in any country in which the Company does business, without the Company's specific written consent to do so. "Competing Business"\nshall mean any enterprise, activity, or business that competes with the Company in any of its or their material businesses, including, without\nlimitation, the research, design, development, identification, manufacture, marketing, or sales of targeted regional cancer or infectious disease drug\ndelivery systems.\n3\nThe restrictions contained in this section shall not prevent Employee from accepting employment with a large diversified organization with separate\nand distinct divisions that do not compete, directly or indirectly, with the Company, as long as prior to accepting such employment the Company\nreceives separate written assurances from the prospective employer and from Employee, satisfactory to the Company, to the effect that Employee\nwill not render any services, directly or indirectly, to any division or business unit that competes, directly or indirectly, with the Company. During the\nrestrictive period set forth in this section, Employee will inform any new employer, prior to accepting employment, of the existence of this\nAgreement and provide such employer with a copy of this Agreement.\nNothing in this Agreement shall be construed to prevent or otherwise restrict or limit the Employee from owning shares and investing (as a passive\ninvestor), directly or indirectly, in the stock of any publicly traded competing corporation whose shares are listed on a national securities exchange\nor\ntraded in the over-the-counter market, but only if Employee does not own more than an aggregate of one percent (1%) of the outstanding stock of\nsuch corporation.\n6.\nNON-SOLICITATION OF CUSTOMERS AND EMPLOYEES.\n(a)\nEmployee\nacknowledges\nand\nagrees\nthat,\nduring\nthe\ncourse\nof\nEmployee's\nemployment\nby\nthe\nCompany,\nEmployee\nmay\ncome\ninto\ncontact with and become aware of some, most, or all of the Company's customers and employees, past, present, and prospective, and their names\nand addresses, as well as other information about the customers and employees not publicly available. Employee further acknowledges and agrees\nthat the loss of such customers and employees may cause the Company great and irreparable harm.\n(b) Consequently, Employee covenants and agrees that, if Employee's employment with the Company terminates, whether such\ntermination is voluntary or involuntary, Employee will not, for a period of one (1) year following such termination, directly or indirectly\n(whether\nas\nan individual for Employee's own account, or as a partner, joint venturer, employee, agent, consultant or sales representative, officer, director or\nshareholder of any entity or otherwise), solicit or attempt to solicit to do business that would compete with the Company in any of its or their\nmaterial businesses, including, without limitation, the research, design, development, identification, manufacture, marketing, or sales of targeted\nregional cancer or infectious disease drug delivery systems.\n(c) Employee also agrees that, for a period of one (1) year following termination of Employee's employment with the Company, whether\nsuch termination is voluntary or involuntary, Employee will not, directly or indirectly (whether as an individual for Employee's own account, or as a\npartner, joint venturer, employee, agent, consultant or sales representative, officer, director or shareholder of any entity or otherwise), solicit or\nattempt to solicit any then current employee of the Company to leave employee's employment with the Company to become employed by any\nperson, firm, corporation, or other entity.\n7.\nENFORCEMENT OF COVENANTS.\n(a) Employee acknowledges that a breach by Employee of any of the terms of this Agreement will result in material, irreparable injury to\nthe Company for which any remedy at law will not be adequate. Moreover, it will not be possible to measure damages for such\n4\ninjuries precisely and, in the event of such a breach or threat of breach, the Company shall be entitled to obtain a temporary restraining order and/or a\npreliminary or permanent injunction restraining Employee from engaging in activities prohibited by this Agreement, together with such other relief\nas may be required to enforce specifically any of the terms of this Agreement. Employee consents to such temporary, preliminary, or permanent\ninjunctive relief. Nothing in this Agreement shall be construed as prohibiting the Company from pursuing any other available remedies for breach or\nthreatened breach of this Agreement, including recovery of damages, court costs, and attorneys' fees.\n(b) If the Company is required to enforce any of its rights hereunder through legal proceedings, Employee shall reimburse the Company\nfor all reasonable costs, expenses, and attorneys' fees incurred by the Company in connection with the enforcement of its rights hereunder.\n(c) Employee understands and agrees that nothing in this Agreement creates a contract, express or implied, of employment for\nany\nspecified period. Employee's employment may be terminated by Employee or the Company at any time and for any reason or no reason, unless\nexpressly limited by a separate writing executed by both the Company and Employee.\n(d) If one or more provisions of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal,\nor\nunenforceable, Employee agrees the validity, legality, and enforcement of the remaining provisions of the Agreement shall not in any way be\naffected or impaired. Employee also agrees that the language contained in Sections "3", "4", "5" and "6" of the Agreement is reasonable in scope\nand that Employee will not raise any issue regarding the reasonableness of the Agreement as a defense in any proceeding to enforce the Agreement.\nIf\na\ncourt determines that the language contained in Sections "3", "4", "5" and "6" of the Agreement is not reasonable, the parties agree that the court\nmay modify such provisions to the maximum period of restriction, activities, term, or geographic scope that the court deems reasonable.\n8.\nWAIVER OF BREACH.\nThe waiver by the Company of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver of any\nsubsequent breach by Employee, and the failure of the Company to take action against any other employee(s) for similar breach(es) on their part,\nshall not be construed as a waiver of a breach by Employee.\n9.\nAGREEMENT BINDING.\nThis Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Company, and the heirs, executors, and\nadministrators of Employee. The Company shall have the right to transfer and assign all or any portion of its rights and obligations hereunder to any\nthird party.\n10. APPLICABLE LAW AND CHOICE OF FORUM.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New York. The parties, being desirous of\nhaving any disputes resolved in a forum having a substantial body of law and experience with matters contained herein, and the parties\n5\nhaving a substantial connection with the State of New York, agree that any action or proceeding with respect to this Agreement shall be brought in a\nstate or federal court located within the State of New York. The parties consent to the personal jurisdiction of the state and federal courts of New\nYork should a legal action to enforce this Agreement be necessary.\n11. MODIFICATION.\nThis Agreement may only be modified by the express written consent of both parties.\n12. ENTIRE AGREEMENT.\nThis Agreement constitutes the entire understanding between Company and Employee with respect to the subject matter hereof and supersedes\nand replaces all prior contracts, agreements and understandings related to the same subject matter between the parties.\n13. SECTION HEADINGS\nThe section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or\ndescribe the scope or extent of such section or in any way affect such section.\nI have read and understand this Agreement and I agree to abide by its terms.\n[EMPLOYEE]\nDELCATH SYSTEMS, INC.\n(Signature)\n(Signature)\nDate\nName\nWitness\nTitle\nDate\n6	EX-10.2 3 d234488dex102.htm FORM OF EMPLOYEE CONFIDENTIALITY AND RESTRICTIVE COVENANT\nAGREEMENT\nExhibit 10.2\nDelcath Systems, Inc.\nEMPLOYEE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT\nAGREEMENT (“Agreement”) made this\nday of\n20 , between Delcath Systems, Inc., and its predecessors,\ndivisions, affiliates, successors, and assigns (the “Company”), and\n, residing at\n(“Employee”).\nWHEREAS, the Company wishes to obtain reasonable protection of its confidential business and technical information which it has\ndeveloped, acquired and/or is or may be developed or acquired by the Company at substantial expenses, and\nWHEREAS, the Company wishes to obtain reasonable protection against unfair competition during the Employees employment by the\nCompany and following termination of the Employee’s employment by the Company and to further protect against unfair use of its confidential\nbusiness and technical information the Company desires to have Employee execute this Agreement, and\nWHEREAS, the Employee is willing to execute this Agreement and grant the Company the benefits of the restrictive covenants contained\nherein.\nFor and in consideration of the continued employment of Employee by the Company and compensation and benefits paid to Employee and\nhereafter to be paid to Employee by the Company, Employee agrees as follows:\n1. NO PRIOR CONFLICTING CONTRACTS .\nEmployee represents that Employee’s employment or potential employment by the Company is not in violation of any contract or covenants to\nwhich Employee is a party with any employer, entity, or person. Employee agrees not to use or disclose in Employee’s work with the Company any\nsecret or confidential information of others, including prior employers, unless such information is rightfully possessed by the Company.\n2. DEFINITIONS\n(a) Confidential Information. For purposes of this Agreement, the term “Confidential Information” means information that is not\ngenerally known to the public and that is used, developed, or obtained by the Company in connection with its business, including, but not limited to,\ninformation, observations, and data obtained by Employee while employed by the Company thereof concerning (i) the business or affairs of the\nCompany, (ii) products or services, (iii) fees, costs, compensation, and pricing structures, (iv) designs, (v) specifications (including, but not limited\nto, supplier specifications); (vi) clinical trial data; (vii) analyses, (viii) drawings, photographs and reports, (ix) computer software, including\noperating systems, applications, and program listings, (x) flow charts, manuals, and documentation, (xi) data or data bases, (xii) accounting and\nbusiness methods, (xiii) inventions, devices, new developments, methods and processes, whether patentable or unpatentable and whether or not\nreduced to practice, (xiv)\ncustomers and clients and customer or client lists, (xv) other copyrightable works, (xvi) all production methods, processes, technology, and trade\nsecrets, and (xvii) all similar and related information in whatever form. Confidential Information will not include any information that has been\npublished (other than a disclosure by Employee in breach of this Agreement) in a form generally available to the public prior to the date Employee\nproposes to disclose or use such information. Confidential Information will not be deemed to have been published merely because individual\nportions of the information have been separately published, but only if all material features comprising such information have been published in\ncombination.\n(b) Work Product. For purposes of this Agreement, the term “Work Product” means all inventions, innovations, improvements, technical\ninformation, systems, software developments, discoveries, methods, designs, processes, analyses, drawings, reports, service marks, trademarks, trade\nnames, logos, and all similar or related information (whether patentable or unpatentable, copyrightable, registerable as a trademark, reduced to\nwriting, or otherwise) that relates to the Company’s actual or anticipated business, research and development, or existing or future products or\nservices and which are conceived, developed, or made by Employee (whether or not during usual business hours, whether or not by the use of the\nfacilities of the Company, and whether or not alone or in conjunction with any other person) while employed by the Company (including those\nconceived, developed, or made prior to the effective date of this Agreement) together with all patent applications, letters patent, trademark, trade\nname and service mark applications or registrations, copyrights and reissues thereof that may be granted for or upon any of the foregoing.\n3. CONFIDENTIALITY REQUIREMENTS.\n(a) Employee acknowledges and agrees that, as a result of the nature of the Company’s business and the nature of Employee’s position\nwith the Company, Employee has been or will come into contact with, and will have access to, Confidential Information belonging to the Company.\nEmployee acknowledges that the aforementioned Confidential Information is unique and not generally known to the public with respect to the\nCompany and has been developed, acquired, and compiled by the Company at its great effort and expense.\n(b) Employee further acknowledges and agrees that any disclosure or use of the Company’s Confidential Information by Employee,\nother than in connection with the Company’s business or as specifically authorized by the Company, will be or may become highly detrimental to the\nbusiness of the Company, and serious loss of business and damage to the Company will or may result.\n(c) Accordingly, Employee agrees to hold all Confidential Information in the strictest confidence and agrees to safeguard and not use,\ndisclose, divulge or reveal the Company’s Confidential Information to any person, either during Employee’s employment or at any time after the\ntermination of Employee’s employment with the Company, without specific prior written authorization from an executive officer of the Company. If\nEmployee is an executive officer of the Company, Employee must obtain prior written authorization from the Chief Executive Officer.\n(d) Employee further agrees to promptly deliver to the Company, upon the termination of Employee’s employment with the Company, or\nat any other time as the Company\n2\nmay so request, all Company property, including but not limited to laptops, personal digital assistants (PDAs), and cell phones, and all\ndocumentation, memoranda, notes, customer lists, records, reports, blueprints, software, drawings, computer disks, programs, and any other\ndocuments (and all copies thereof) containing Confidential Information or relating to the Company’s business and any property associated therewith,\nwhich Employee may then possess or have under Employee’s control.\n4. WORK PRODUCT REQUIREMENTS.\n(a) All Work Product that Employee may have conceived, developed, made, discovered, invented or originated during his/her\nemployment by the Company prior to the Effective Date, during Employee’s employment with the Company, or at any time in the period of twelve\n(12) months after termination of Employee’s employment, shall be deemed work for hire and shall be the exclusive property of the Company, as\napplicable. Employee hereby assigns all of Employee’s right, title, and interest in and to such Work Product to the Company, including all\nintellectual property rights therein.\n(b) Employee shall promptly disclose all Work Product to the Company, shall execute at the request of the Company any assignments or\nother documents the Company may deem necessary to protect or perfect its rights therein, and shall assist the Company, at the Company’s expense,\nin obtaining, defending, and enforcing the Company’s rights therein. Employee hereby appoints the Company as Employee’s attorney-in-fact to\nexecute on Employee’s behalf any assignments or other documents deemed necessary by the Company to protect or perfect the Company’s rights to\nany Work Product.\n5. NON-COMPETITION.\n(a) Employee acknowledges and agrees that the Company has invested and will invest substantial time, effort, resources and finances in\nthe research, development and commercialization of the Company’s product(s) and is engaged in a highly competitive business and that, by virtue of\nthe position in which Employee is employed, he or she will help create and will be given access to Confidential Information. If the Employee\nengages in any business that is competitive with the Company it will cause great and irreparable harm to the Company, the monetary loss from\nwhich would be difficult, if not impossible, to measure.\n(b) Consequently, Employee covenants and agrees that so long as Employee is employed by the Company, and for a period of one\n(1) year following termination of Employee’s employment with the Company, whether such termination is voluntary or involuntary, Employee will\nnot, directly or indirectly (whether as an individual for Employee’s own account, or as a partner, joint venturer, employee, agent, consultant or sales\nrepresentative, officer, director or shareholder of any entity or otherwise), engage in, enter the employ of, render any services to, have any ownership\ninterest in, nor participate in the financing, operation, management or control of, any Competing Business, or in any manner compete with the\nCompany, in any country in which the Company does business, without the Company’s specific written consent to do so. “Competing Business”\nshall mean any enterprise, activity, or business that competes with the Company in any of its or their material businesses, including, without\nlimitation, the research, design, development, identification, manufacture, marketing, or sales of targeted regional cancer or infectious disease drug\ndelivery systems.\n3\nThe restrictions contained in this section shall not prevent Employee from accepting employment with a large diversified organization with separate\nand distinct divisions that do not compete, directly or indirectly, with the Company, as long as prior to accepting such employment the Company\nreceives separate written assurances from the prospective employer and from Employee, satisfactory to the Company, to the effect that Employee\nwill not render any services, directly or indirectly, to any division or business unit that competes, directly or indirectly, with the Company. During the\nrestrictive period set forth in this section, Employee will inform any new employer, prior to accepting employment, of the existence of this\nAgreement and provide such employer with a copy of this Agreement.\nNothing in this Agreement shall be construed to prevent or otherwise restrict or limit the Employee from owning shares and investing (as a passive\ninvestor), directly or indirectly, in the stock of any publicly traded competing corporation whose shares are listed on a national securities exchange or\ntraded in the over-the-counter market, but only if Employee does not own more than an aggregate of one percent (1%) of the outstanding stock of\nsuch corporation.\n6. NON-SOLICITATION OF CUSTOMERS AND EMPLOYEES.\n(a) Employee acknowledges and agrees that, during the course of Employee’s employment by the Company, Employee may come into\ncontact with and become aware of some, most, or all of the Company’s customers and employees, past, present, and prospective, and their names\nand addresses, as well as other information about the customers and employees not publicly available. Employee further acknowledges and agrees\nthat the loss of such customers and employees may cause the Company great and irreparable harm.\n(b) Consequently, Employee covenants and agrees that, if Employee’s employment with the Company terminates, whether such\ntermination is voluntary or involuntary, Employee will not, for a period of one (1) year following such termination, directly or indirectly (whether as\nan individual for Employee’s own account, or as a partner, joint venturer, employee, agent, consultant or sales representative, officer, director or\nshareholder of any entity or otherwise), solicit or attempt to solicit to do business that would compete with the Company in any of its or their\nmaterial businesses, including, without limitation, the research, design, development, identification, manufacture, marketing, or sales of targeted\nregional cancer or infectious disease drug delivery systems.\n(c) Employee also agrees that, for a period of one (1) year following termination of Employee’s employment with the Company, whether\nsuch termination is voluntary or involuntary, Employee will not, directly or indirectly (whether as an individual for Employee’s own account, or as a\npartner, joint venturer, employee, agent, consultant or sales representative, officer, director or shareholder of any entity or otherwise), solicit or\nattempt to solicit any then current employee of the Company to leave employee’s employment with the Company to become employed by any\nperson, firm, corporation, or other entity.\n7. ENFORCEMENT OF COVENANTS.\n(a) Employee acknowledges that a breach by Employee of any of the terms of this Agreement will result in material, irreparable injury to\nthe Company for which any remedy at law will not be adequate. Moreover, it will not be possible to measure damages for such\n4\ninjuries precisely and, in the event of such a breach or threat of breach, the Company shall be entitled to obtain a temporary restraining order and/or a\npreliminary or permanent injunction restraining Employee from engaging in activities prohibited by this Agreement, together with such other relief\nas may be required to enforce specifically any of the terms of this Agreement. Employee consents to such temporary, preliminary, or permanent\ninjunctive relief. Nothing in this Agreement shall be construed as prohibiting the Company from pursuing any other available remedies for breach or\nthreatened breach of this Agreement, including recovery of damages, court costs, and attorneys’ fees.\n(b) If the Company is required to enforce any of its rights hereunder through legal proceedings, Employee shall reimburse the Company\nfor all reasonable costs, expenses, and attorneys’ fees incurred by the Company in connection with the enforcement of its rights hereunder.\n(c) Employee understands and agrees that nothing in this Agreement creates a contract, express or implied, of employment for any\nspecified period. Employee’s employment may be terminated by Employee or the Company at any time and for any reason or no reason, unless\nexpressly limited by a separate writing executed by both the Company and Employee.\n(d) If one or more provisions of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or\nunenforceable, Employee agrees the validity, legality, and enforcement of the remaining provisions of the Agreement shall not in any way be\naffected or impaired. Employee also agrees that the language contained in Sections “3”, “4”, “5” and “6” of the Agreement is reasonable in scope\nand that Employee will not raise any issue regarding the reasonableness of the Agreement as a defense in any proceeding to enforce the Agreement.\nIf a court determines that the language contained in Sections “3”, “4”, “5” and “6” of the Agreement is not reasonable, the parties agree that the court\nmay modify such provisions to the maximum period of restriction, activities, term, or geographic scope that the court deems reasonable.\n8. WAIVER OF BREACH.\nThe waiver by the Company of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver of any\nsubsequent breach by Employee, and the failure of the Company to take action against any other employee(s) for similar breach(es) on their part,\nshall not be construed as a waiver of a breach by Employee.\n9. AGREEMENT BINDING .\nThis Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Company, and the heirs, executors, and\nadministrators of Employee. The Company shall have the right to transfer and assign all or any portion of its rights and obligations hereunder to any\nthird party.\n10. APPLICABLE LAW AND CHOICE OF FORUM.\nThis Agreement shall be governed by and construed in accordance with the laws of the State of New York. The parties, being desirous of\nhaving any disputes resolved in a forum having a substantial body of law and experience with matters contained herein, and the parties\n5\nhaving a substantial connection with the State of New York, agree that any action or proceeding with respect to this Agreement shall be brought in a\nstate or federal court located within the State of New York. The parties consent to the personal jurisdiction of the state and federal courts of New\nYork should a legal action to enforce this Agreement be necessary.\n11. MODIFICATION.\nThis Agreement may only be modified by the express written consent of both parties.\n12. ENTIRE AGREEMENT .\nThis Agreement constitutes the entire understanding between Company and Employee with respect to the subject matter hereof and supersedes\nand replaces all prior contracts, agreements and understandings related to the same subject matter between the parties.\n13. SECTION HEADINGS\nThe section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or\ndescribe the scope or extent of such section or in any way affect such section.\nI have read and understand this Agreement and I agree to abide by its terms.\n[EMPLOYEE]\nDELCATH SYSTEMS, INC.\n(Signature)\n(Signature)\nDate\nName\nWitness\nTitle\nDate\n6
+586c367e2c45ebd8b7ba96fcb6006bf6.pdf	effective_date jurisdiction party term	EX-10.48 15 dex1048.htm CONFIDENTIALITY AND ASSIGNMENT OF PROPRIETARY DEVELOPMENTS\nAGREEMENT\nExhibit 10.48\nLOGO\nOctober 5, 2007\nChristopher C. Gallen, MD, PhD\nTELEPHONE: 484.533.6900\nEmail: cgallen@neuromed.com\nSchedule “B”\nC. Eugene Wright, III\n16 Carhart Court\nPittstown, New Jersey 08867\nDear Eugene:\nRe: Confidentiality and Assignment of Proprietary Developments Agreement\nThe purpose of this exhibit is to describe and record the Agreement between you and Neuromed Pharmaceuticals Inc. (“Company”) concerning\nthe terms on which you, as an employee of Company, will protect and keep confidential certain information received during your employment with\nCompany and pursuant to which you agree to assign certain Proprietary Developments to Company.\nAs an essential element of the Company’s offer of employment to you, you hereby agree to be bound by the following:\n1. DEFINITIONS:\nIn this Agreement:\n(a) “Confidential Information” means the whole or any portion of any data or information about the business of the Companies that the\nCompanies protect from public disclosure. Confidential Information relates to Companies’ services, products, processes or techniques,\nas well as to the business, services, products, processes and techniques of Companies’ clients, regardless of whether or not that\ninformation is copyrighted, patented or patentable. Confidential Information shall include but not be limited to:\n(i) experimental techniques, proprietary assays, screening strategies and technologies, targets for drug discovery and chemical\nformulae;\n(ii) commercial and financial information concerning the corporate, scientific, and pharmaceutical research activities and plans of\nCompanies including any information regarding Companies’ costs, sales, income, salaries, customers, and all business\nopportunities or joint ventures considered by Companies, whether or not pursued; and\nC. Eugene Wright, III\nOct. 5, 2007\nPage2of7\n(iii) any and all confidential know-how, Trade Secrets, and any and all oral, written, electronic or other confidential communications\nregarding any Proprietary Developments.\n(b) “Company’s Business” means the specific biomedical research and development activities conducted by Companies including but not\nlimited to the discovery and development of novel calcium channel blockers for the purpose of treating diseases.\n(c) “Company” shall mean Neuromed Pharmaceuticals Inc. and any affiliated companies.\n(d) “Companies” shall mean the Company and Neuromed Pharmaceuticals Ltd. and any affiliated companies.\n(e) “Proprietary Development” means a development or developments including, without limitation:\n(i) enhancements, modifications, additions or other improvements to the intellectual property or assets owned, licensed, sold,\nmarketed or used by Companies in connection with Companies’ Business;\n(ii) trademarks, copyrights, trade names, business names, logos, design marks and other proprietary marks;\n(iii) inventions, devices, discoveries, concepts, ideas, formulae, know-how, processes, techniques, systems, methods and any\nimprovements, enhancements and modifications thereto, whether patented or not; developed, created, generated, contributed to or\nreduced to practice by you alone or jointly with others pursuant to your activities as an employee, director, officer or consultant of\nCompany and which results from tasks assigned to you by Company or which results from the use of the premises or property\n(including equipment, supplies or Confidential Information) owned, leased or licensed by Companies and which reasonably\nrelates to the Companies Business, or which results from or relates to working with Companies’ clients, either directly or\nindirectly.\n(f) “Trade Secret(s)” shall mean any information falling under the definition of a Trade Secret pursuant to the Uniform Trade Secrets Act or,\nif applicable, the version thereof adopted by Pennsylvania. Trade Secrets include, but are not limited to, any useful process, machine or\nother device or composition of matter which is new and which is being used or studied by Companies and is not described in a patent or\ndescribed in any literature already published and distributed externally by Companies; the source code or algorithms of any software\ndeveloped or owned by Companies; any formula, plan, tool, machine, process or method employed by Companies, whether patentable\nor not; business plans and marketing concepts of Companies; marketing or sales information of Companies; financial information or\nprojections regarding Companies; financial, pricing and/or credit information regarding clients or vendors of Companies, and internal\npolicies and procedures of Companies.\n2. CONFIDENTIALITY:\n(a) Basic Obligation Of Confidentiality:\nYou acknowledge and agree that during your employment with Company, Companies may disclose to you, or you may otherwise be exposed\nto, Companies’ Confidential Information. Company agrees to provide such access to you and you agree to receive and hold the Confidential\nInformation on the terms and conditions set out herein. Except as set out below,\nC. Eugene Wright, III\nOct. 5, 2007\nPage3of7\nyou will keep strictly confidential all Confidential Information and all other information that you acquire, see, or are informed of, as a direct or\nindirect consequence of your involvement with Companies in any capacity or that is revealed to you by Companies or is generated through\nnegotiations or other activities of third parties in connection with your involvement, in any capacity, with Companies’ Business.\n(b) Non-Disclosure:\nUnless the authorized representative of Company first gives you written permission to do so, you will not:\n(i) use or duplicate Confidential Information or recollections thereof;\n(ii) disclose Confidential Information or recollections thereof to any third party;\nor\n(iii) translate or adapt any Confidential Information or permit any Confidential Information to be used, copied, translated or adapted.\n(c) Taking Precautions:\nYou will take all reasonable precautions necessary or prudent to prevent material in your possession or control that contains or refers to\nConfidential Information from being discovered, used, or copied by third parties.\n(d) Companies’ Ownership of Confidential Information:\nAs between you and Companies, all right, title and interest in and to the Confidential Information, whether or not created or developed by you,\nis and shall remain Companies’ property.\n(e) Control of Confidential Information and Return of Information:\nAll physical materials produced or prepared by you containing Confidential Information, including designs, formulae, memoranda, test results\nand notes of experiments, drawings, plans, prototypes, samples, accounts, reports, data, financial statements or proforma estimates and any\nother materials prepared in the course of your responsibilities or for the benefit of Companies shall belong to Companies, and you will turn\nover possession to Company of all such items in your possession or control promptly when Company requests you to do so.\n(f) Purpose of Use:\nYou will use Confidential Information only for purposes authorized or directed by Company or Companies and its officers, and you will not\nseek access to any Confidential Information that is not relevant to or necessary for those purposes.\n(g) Extent and Duration of Obligation:\nExcept as Company agrees In writing, your obligations of confidentiality under this Agreement shall continue for the longer of:\n(i) ten (10) years after the termination of your employment with Company;\nand\nC. Eugene Wright, III\nOct. 5, 2007\nPage4of7\n(ii) with respect to particular items of Confidential Information or material, for so long as those items are not in the public domain,\nbut your obligations will continue if those items enter the public domain as a consequence of a breach of this Agreement or any\nother wrongful or negligent act or omission by you.\nThe restrictions in this Agreement regarding confidentiality will not apply to information which is known by you prior to your employment\nwith Company, except to the extent that such information was disclosed to you under a confidentiality agreement with a prior employer or to\nthe extent that value can be derived by a competitor from the manner in which such information has been compiled by you or others during\nyour employment by Company.\n3. ASSIGNMENT OF PROPRIETARY DEVELOPMENTS:\n(a) Full Disclosure of Proprietary Developments:\nYou agree to promptly inform, and make full disclosure of, any Proprietary Development to Company. If required by Company, you will\ndisclose in writing in a log book or such other form or device provided for such purpose by Company, the details of all Proprietary\nDevelopments that you are involved with or responsible for as an employee of Company.\n(b) Assignment of Proprietary Developments to Company:\nYou will assign, and do hereby irrevocably assign and transfer to Company or to Company’s designee, your entire right, title and interest in\nand to all Proprietary Developments and any Confidential Information. Without limiting the foregoing, you agree to waive all legal and moral\nrights in such Proprietary Developments, and you agree that all Proprietary Developments to which you contribute in any way while an\nemployee of Company and within the scope of your employment shall be deemed to be “works made in the course of employment” and that\nCompany, or Company’s designee, shall be deemed the owner thereof. To the extent that you may own or acquire legal title to any of such\nProprietary Developments, you hereby declare and confirm that such legal title is, and will be, held in a fiduciary capacity by you only as\ntrustee and agent for Company. You agree that Company, or Company’s designee, will be the exclusive owner of all of your right title and\ninterest in and to each Proprietary Development throughout the world, including all Trade Secret, patent, copyright, trademark, industrial\ndesign and all other intellectual property rights of any kind therein. To the extent that any of the works prepared by or to which you contribute\nwithin the scope of your employment with Company, shall be deemed by a court of competent jurisdiction not to be a “work made for hire”,\nthis Agreement shall operate as an irrevocable assignment by you to Company, or Company’s designee, of all right, title and interest in and to\nsuch works, including, without limitation, all worldwide copyright interests therein, in perpetuity.\n(c) Notice:\nNotwithstanding any other provision of this Agreement to the contrary, this Agreement does not obligate you to assign or offer to assign to\nCompany any of your rights in an invention for which no equipment, supplies, facilities or Confidential Information of Company was used and\nwhich was developed entirely on your own time, unless: (1) the invention relates (a) directly to the business of Companies or (b) to\nCompanies’ actual or demonstrably anticipated research or development, or (2) the invention results from any work performed by you for\nCompany. This Notice satisfies the written notice and other requirements of RCW 49.44.140.\n(d) Assistance with Proceedings:\nYou further agree at Company’s request to assist in drafting of any description or specification of the Proprietary Development as may be\nrequired for any patent application and to assist with any opposition to, or intervention regarding, an application for any patent, copyright or\ntrademark\nC. Eugene Wright, III\nOct. 5, 2007\nPage5of7\nor other proceedings relating to any Proprietary Developments. Without limiting the foregoing you agree to execute:\n(i) all instruments that Company may reasonably require to effect, protect, perfect, register, record or patent any Proprietary\nDevelopments or Confidential Information, or related rights, or Company’s interest therein; and\n(ii) all papers that Company reasonably considers necessary or helpful in obtaining or maintaining such interests and rights during\nthe prosecution of applications thereon or during the conduct of any interference, litigation, opposition, or any other matter in\nconnection therewith;\nprovided that all expenses incident to such activities will `be borne by Company.\nYour obligations under this Section will continue in perpetuity beyond any termination of your employment with Company, respecting any\nProprietary Developments created during your employment with Company, or any Proprietary Developments perfected or reduced to specific\nform after termination of your employment with Company, if the conception of the Proprietary Development arose during the time of your\nemployment with Company. You agree that Company’s rights under this Section shall not be limited to the United States, but shall extend to\nevery country of the world.\n(e) Inventions and Improvements:\nYou further agree to treat all information relating to any Proprietary Development as Confidential Information owned by Company and you\nwill disclose same only to your immediate superior or as he or she may direct.\n(f) Publicity and Publication:\nWithout the prior written consent of the Chief Scientific Officer or the Chief Executive Officer of Company you will not make or give any\npublic announcements or press releases or statements to the public or the press regarding any Proprietary Developments, Confidential\nInformation or other information concerning Companies’ Business. You also will not submit an abstract or publication for review or\npublication until you have prior written approval to do so from the Chief Scientific Officer of Company.\n4. MISCELLANEOUS:\n(a) Governing Law:\nThis Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania.\n(b) Equitable Remedies:\nYou acknowledge and agree that the restrictions contained in this Agreement, in view of the nature of the business in which the Companies are\nengaged, are reasonable and necessary in order to protect the legitimate interests of the Companies, and that any violation or threatened\nviolation thereof would result in irreparable injury to the Companies. You therefore agree that:\n(i) in the event of your violation or threatened violation of any of these restrictions, the Companies shall be entitled to obtain from\nany court of competent jurisdiction preliminary and permanent injunctive relief, or an appropriate decree of specific performance,\nwithout proof of actual loss or the need to post any bonds. You further\nC. Eugene Wright, III\nOct. 5, 2007\nPage6of7\nagree that Companies shall be entitled to any and all other damages available at law and in equity, and an equitable accounting of\nall earnings, profits and other benefits arising from such violation, which rights shall be cumulative and in addition to any other\nrights or remedies to which the Companies may be entitled.\n(ii) You shall indemnify and hold harmless the Companies and their officers, directors, and employees from and against any and all\nliabilities, losses, costs and expenses (including but not limited to, reasonable attorneys’ fees), damages and injuries resulting\nfrom, or in connection with, any material breach of any provision of this Agreement by you.\n(c) Amendments:\nNo amendment, modification, supplement or other purported alteration of this Agreement shall be binding unless it is in writing and signed by\nyou and by Companies.\n(d) Binding Nature of Agreement:\nYou agree that this Agreement is binding on your personal representatives. You also agree that the covenants and provisions contained in this\nAgreement shall survive and continue to bind you following the termination of your employment with Company regardless of how your\nemployment is terminated.\n(e) Independent Legal Advice:\nAs this is an important agreement for you and for Companies containing significant undertakings by you, Companies urge you to seek\nindependent legal advice regarding this Agreement prior to signing.\n(f) Severability:\nIf any part or Section of this Agreement is determined by a Court of competent jurisdiction to be void or unenforceable in whole or in part,\nthen such void or unenforceable part or Section shall be severed, and shall not affect or impair the enforceability or validity of the balance of\nthe Section or any other part of this Agreement.\n(g) No Waiver:\nNo waiver, delay, indulgence, or failure to act by Companies regarding any particular default or omission by you shall affect or impair any of\nCompanies’ rights or remedies regarding that or any subsequent default or omission that is not expressly waived in writing.\n(h) No Other Obligations:\nYou represent, except as you have disclosed to Companies in writing on the date hereof, that you have no agreements with or obligations to\nothers with respect to the matters covered by this Agreement or concerning the Confidential Information that are in conflict with anything in\nthis Agreement.\nC. Eugene Wright, III\nOct. 5, 2007\nPage7of7\nNEUROMED PHARMACEUTICALS INC.\nBy: /s/ Christopher C. Gallen, MD, PhD\nChristopher C. Gallen, MD, PhD\nPresident & CEO\nNEUROMED PHARMACEUTICALS LTD.\nBy: /s/ Christopher C. Gallen, MD, PhD\nChristopher C. Gallen, MD, PhD\nPresident & CEO\nACCEPTED AND AGREED TO THIS 11 DAY OF October, 2007. BY MY SIGNATURE BELOW, I AFFIRM THAT I HAVE READ AND\nUNDERSTAND THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AND AGREE TO BE BOUND BY THEM.\n/s/ C. Eugene Wright, III\nC. Eugene Wright, III\nth	EX-10.48 15 dex1048.htm CONFIDENTIALITY AND ASSIGNMENT OF PROPRIETARY DEVELOPMENTS\nAGREEMENT\nExhibit 10.48\nl#.LOGO\nOctober 5, 2007 Christopher C. Gallen, MD, PhD\nTELEPHONE: 484.533.6900\nEmail: cgallen@neuromed.com\nSchedule “B”\nC. Eugene Wright, III\n16 Carhart Court\nPittstown, New Jersey 08867\nDear Eugene:\nRe: Confidentiality and Assignment of Proprietary Developments Agreement\nThe purpose of this exhibit is to describe and record the Agreement between you and Neuromed Pharmaceuticals Inc. (“Company”) concerning\nthe terms on which you, as an employee of Company, will protect and keep confidential certain information received during your employment with\nCompany and pursuant to which you agree to assign certain Proprietary Developments to Company.\nAs an essential element of the Company’s offer of employment to you, you hereby agree to be bound by the following:\n1. DEFINITIONS:\nIn this Agreement:\n(a) “Confidential Information” means the whole or any portion of any data or information about the business of the Companies that the\nCompanies protect from public disclosure. Confidential Information relates to Companies’ services, products, processes or techniques,\nas well as to the business, services, products, processes and techniques of Companies’ clients, regardless of whether or not that\ninformation is copyrighted, patented or patentable. Confidential Information shall include but not be limited to:\n@ experimental techniques, proprietary assays, screening strategies and technologies, targets for drug discovery and chemical\nformulae;\n(i)  commercial and financial information concerning the corporate, scientific, and pharmaceutical research activities and plans of\nCompanies including any information regarding Companies’ costs, sales, income, salaries, customers, and all business\nopportunities or joint ventures considered by Companies, whether or not pursued; and\n(b)\n()\n(d)\n(e)\n®\nC. Eugene Wright, III\nOct. 5, 2007\nPage 2 of 7\n(ili)  any and all confidential know-how, Trade Secrets, and any and all oral, written, electronic or other confidential communications\nregarding any Proprietary Developments.\n“Company’s Business” means the specific biomedical research and development activities conducted by Companies including but not\nlimited to the discovery and development of novel calcium channel blockers for the purpose of treating diseases.\n“Company” shall mean Neuromed Pharmaceuticals Inc. and any affiliated companies.\n“Companies” shall mean the Company and Neuromed Pharmaceuticals Ltd. and any affiliated companies.\n“Proprietary Development” means a development or developments including, without limitation:\n@) enhancements, modifications, additions or other improvements to the intellectual property or assets owned, licensed, sold,\nmarketed or used by Companies in connection with Companies’ Business;\n(ii)  trademarks, copyrights, trade names, business names, logos, design marks and other proprietary marks;\n(iii)  inventions, devices, discoveries, concepts, ideas, formulae, know-how, processes, techniques, systems, methods and any\nimprovements, enhancements and modifications thereto, whether patented or not; developed, created, generated, contributed to or\nreduced to practice by you alone or jointly with others pursuant to your activities as an employee, director, officer or consultant of\nCompany and which results from tasks assigned to you by Company or which results from the use of the premises or property\n(including equipment, supplies or Confidential Information) owned, leased or licensed by Companies and which reasonably\nrelates to the Companies Business, or which results from or relates to working with Companies’ clients, either directly or\nindirectly.\n“Trade Secret(s)” shall mean any information falling under the definition of a Trade Secret pursuant to the Uniform Trade Secrets Act or,\nif applicable, the version thereof adopted by Pennsylvania. Trade Secrets include, but are not limited to, any useful process, machine or\nother device or composition of matter which is new and which is being used or studied by Companies and is not described in a patent or\ndescribed in any literature already published and distributed externally by Companies; the source code or algorithms of any software\ndeveloped or owned by Companies; any formula, plan, tool, machine, process or method employed by Companies, whether patentable\nor not; business plans and marketing concepts of Companies; marketing or sales information of Companies; financial information or\nprojections regarding Companies; financial, pricing and/or credit information regarding clients or vendors of Companies, and internal\npolicies and procedures of Companies.\nCONFIDENTIALITY: (a)\nBasic Obligation Of Confidentiality:\nYou acknowledge and agree that during your employment with Company, Companies may disclose to you, or you may otherwise be exposed to, Companies’ Confidential Information. Company agrees to provide such access to you and you agree to receive and hold the Confidential Information on the terms and conditions set out herein. Except as set out below,\fC. Eugene Wright, III\nOct. 5, 2007\nPage 3 of 7\nyou will keep strictly confidential all Confidential Information and all other information that you acquire, see, or are informed of, as a direct or\nindirect consequence of your involvement with Companies in any capacity or that is revealed to you by Companies or is generated through\nnegotiations or other activities of third parties in connection with your involvement, in any capacity, with Companies’ Business.\n(b) Non-Disclosure:\nUnless the authorized representative of Company first gives you written permission to do so, you will not:\n@) use or duplicate Confidential Information or recollections thereof;\n(i)  disclose Confidential Information or recollections thereof to any third party;\nor\n(iii)  translate or adapt any Confidential Information or permit any Confidential Information to be used, copied, translated or adapted.\n(c) Taking Precautions:\nYou will take all reasonable precautions necessary or prudent to prevent material in your possession or control that contains or refers to\nConfidential Information from being discovered, used, or copied by third parties.\n(d) Companies’ Ownership of Confidential Information:\nAs between you and Companies, all right, title and interest in and to the Confidential Information, whether or not created or developed by you,\nis and shall remain Companies’ property.\n(e) Control of Confidential Information and Return of Information:\nAll physical materials produced or prepared by you containing Confidential Information, including designs, formulae, memoranda, test results\nand notes of experiments, drawings, plans, prototypes, samples, accounts, reports, data, financial statements or proforma estimates and any\nother materials prepared in the course of your responsibilities or for the benefit of Companies shall belong to Companies, and you will turn\nover possession to Company of all such items in your possession or control promptly when Company requests you to do so.\n(f)  Purpose of Use:\nYou will use Confidential Information only for purposes authorized or directed by Company or Companies and its officers, and you will not\nseek access to any Confidential Information that is not relevant to or necessary for those purposes.\n(g) Extent and Duration of Obligation:\nExcept as Company agrees In writing, your obligations of confidentiality under this Agreement shall continue for the longer of:\n@ ten (10) years after the termination of your employment with Company;\nand\nC. Eugene Wright, III\nOct. 5, 2007\nPage 4 of 7\n(i)  with respect to particular items of Confidential Information or material, for so long as those items are not in the public domain,\nbut your obligations will continue if those items enter the public domain as a consequence of a breach of this Agreement or any\nother wrongful or negligent act or omission by you.\nThe restrictions in this Agreement regarding confidentiality will not apply to information which is known by you prior to your employment\nwith Company, except to the extent that such information was disclosed to you under a confidentiality agreement with a prior employer or to\nthe extent that value can be derived by a competitor from the manner in which such information has been compiled by you or others during\nyour employment by Company.\nASSIGNMENT OF PROPRIETARY DEVELOPMENTS:\n(a) Full Disclosure of Proprietary Developments:\nYou agree to promptly inform, and make full disclosure of, any Proprietary Development to Company. If required by Company, you will\ndisclose in writing in a log book or such other form or device provided for such purpose by Company, the details of all Proprietary\nDevelopments that you are involved with or responsible for as an employee of Company.\n(b) Assignment of Proprietary Developments to Company:\nYou will assign, and do hereby irrevocably assign and transfer to Company or to Company’s designee, your entire right, title and interest in\nand to all Proprietary Developments and any Confidential Information. Without limiting the foregoing, you agree to waive all legal and moral\nrights in such Proprietary Developments, and you agree that all Proprietary Developments to which you contribute in any way while an\nemployee of Company and within the scope of your employment shall be deemed to be “works made in the course of employment” and that\nCompany, or Company’s designee, shall be deemed the owner thereof. To the extent that you may own or acquire legal title to any of such\nProprietary Developments, you hereby declare and confirm that such legal title is, and will be, held in a fiduciary capacity by you only as\ntrustee and agent for Company. You agree that Company, or Company’s designee, will be the exclusive owner of all of your right title and\ninterest in and to each Proprietary Development throughout the world, including all Trade Secret, patent, copyright, trademark, industrial\ndesign and all other intellectual property rights of any kind therein. To the extent that any of the works prepared by or to which you contribute\nwithin the scope of your employment with Company, shall be deemed by a court of competent jurisdiction not to be a “work made for hire”,\nthis Agreement shall operate as an irrevocable assignment by you to Company, or Company’s designee, of all right, title and interest in and to\nsuch works, including, without limitation, all worldwide copyright interests therein, in perpetuity.\n(c) Notice:\nNotwithstanding any other provision of this Agreement to the contrary, this Agreement does not obligate you to assign or offer to assign to\nCompany any of your rights in an invention for which no equipment, supplies, facilities or Confidential Information of Company was used and\nwhich was developed entirely on your own time, unless: (1) the invention relates (a) directly to the business of Companies or (b) to\nCompanies’ actual or demonstrably anticipated research or development, or (2) the invention results from any work performed by you for\nCompany. This Notice satisfies the written notice and other requirements of RCW 49.44.140.\n(d) Assistance with Proceedings:\nYou further agree at Company’s request to assist in drafting of any description or specification of the Proprietary Development as may be\nrequired for any patent application and to assist with any opposition to, or intervention regarding, an application for any patent, copyright or\ntrademark\nC. Eugene Wright, III\nOct. 5, 2007\nPage 5 of 7\nor other proceedings relating to any Proprietary Developments. Without limiting the foregoing you agree to execute:\n@) all instruments that Company may reasonably require to effect, protect, perfect, register, record or patent any Proprietary\nDevelopments or Confidential Information, or related rights, or Company’s interest therein; and\n(i)  all papers that Company reasonably considers necessary or helpful in obtaining or maintaining such interests and rights during\nthe prosecution of applications thereon or during the conduct of any interference, litigation, opposition, or any other matter in\nconnection therewith;\nprovided that all expenses incident to such activities will “be borne by Company.\nYour obligations under this Section will continue in perpetuity beyond any termination of your employment with Company, respecting any\nProprietary Developments created during your employment with Company, or any Proprietary Developments perfected or reduced to specific\nform after termination of your employment with Company, if the conception of the Proprietary Development arose during the time of your\nemployment with Company. You agree that Company’s rights under this Section shall not be limited to the United States, but shall extend to\nevery country of the world.\n(e) Inventions and Improvements:\nYou further agree to treat all information relating to any Proprietary Development as Confidential Information owned by Company and you\nwill disclose same only to your immediate superior or as he or she may direct.\n(f)  Publicity and Publication:\nWithout the prior written consent of the Chief Scientific Officer or the Chief Executive Officer of Company you will not make or give any\npublic announcements or press releases or statements to the public or the press regarding any Proprietary Developments, Confidential\nInformation or other information concerning Companies’ Business. You also will not submit an abstract or publication for review or\npublication until you have prior written approval to do so from the Chief Scientific Officer of Company.\nMISCELLANEOUS:\n(@) Governing Law:\nThis Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania.\n(b) Equitable Remedies:\nYou acknowledge and agree that the restrictions contained in this Agreement, in view of the nature of the business in which the Companies are\nengaged, are reasonable and necessary in order to protect the legitimate interests of the Companies, and that any violation or threatened\nviolation thereof would result in irreparable injury to the Companies. You therefore agree that:\n@ in the event of your violation or threatened violation of any of these restrictions, the Companies shall be entitled to obtain from\nany court of competent jurisdiction preliminary and permanent injunctive relief, or an appropriate decree of specific performance,\nwithout proof of actual loss or the need to post any bonds. You further\nC. Eugene Wright, III\nOct. 5, 2007\nPage 6 of 7\nagree that Companies shall be entitled to any and all other damages available at law and in equity, and an equitable accounting of\nall earnings, profits and other benefits arising from such violation, which rights shall be cumulative and in addition to any other\nrights or remedies to which the Companies may be entitled.\n(i)  You shall indemnify and hold harmless the Companies and their officers, directors, and employees from and against any and all\nliabilities, losses, costs and expenses (including but not limited to, reasonable attorneys’ fees), damages and injuries resulting\nfrom, or in connection with, any material breach of any provision of this Agreement by you.\n(c) Amendments:\nNo amendment, modification, supplement or other purported alteration of this Agreement shall be binding unless it is in writing and signed by\nyou and by Companies.\n(d) Binding Nature of Agreement:\nYou agree that this Agreement is binding on your personal representatives. You also agree that the covenants and provisions contained in this\nAgreement shall survive and continue to bind you following the termination of your employment with Company regardless of how your\nemployment is terminated.\n(e) Independent Legal Advice:\nAs this is an important agreement for you and for Companies containing significant undertakings by you, Companies urge you to seek\nindependent legal advice regarding this Agreement prior to signing.\n(f) Severability:\nIf any part or Section of this Agreement is determined by a Court of competent jurisdiction to be void or unenforceable in whole or in part,\nthen such void or unenforceable part or Section shall be severed, and shall not affect or impair the enforceability or validity of the balance of\nthe Section or any other part of this Agreement.\n(g) No Waiver:\nNo waiver, delay, indulgence, or failure to act by Companies regarding any particular default or omission by you shall affect or impair any of\nCompanies’ rights or remedies regarding that or any subsequent default or omission that is not expressly waived in writing.\n(h) No Other Obligations:\nYou represent, except as you have disclosed to Companies in writing on the date hereof, that you have no agreements with or obligations to\nothers with respect to the matters covered by this Agreement or concerning the Confidential Information that are in conflict with anything in\nthis Agreement.\nC. Eugene Wright, III\nOct. 5, 2007\nPage 7 of 7\nNEUROMED PHARMACEUTICALS INC.\nBy: /s/ Christopher C. Gallen, MD, PhD\nChristopher C. Gallen, MD, PhD\nPresident & CEO\nNEUROMED PHARMACEUTICALS LTD.\nBy: /s/ Christopher C. Gallen, MD, PhD\nChristopher C. Gallen, MD, PhD\nPresident & CEO\nACCEPTED AND AGREED TO THIS 11® DAY OF October, 2007. BY MY SIGNATURE BELOW, I AFFIRM THAT I HAVE READ AND\nUNDERSTAND THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AND AGREE TO BE BOUND BY THEM.\n/s/ C. Eugene Wright, III\nC. Eugene Wright, III	EX-10.48 15 dex x1048.htm CONFIDENTIALITY AND ASSIGNMENT OF PROPRIETARY DEVELOPMENTS\nAGREEMENT\nExhibit 10.48\nLoGo\nOctober 5, 2007\nChristopher C. Gallen, MD, PhD\nTELEPHONE: 484.533.6900\nEmail: cgallen@neuromed.com\nSchedule "B"\nC. Eugene Wright, III\n16 Carhart Court\nPittstown, New Jersey 08867\nDear Eugene:\nRe: Confidentiality and Assignment of Proprietary Developments Agreement\nThe purpose of this exhibit is to describe and record the Agreement between you and Neuromed Pharmaceuticals Inc. ("Company") concerning\nthe terms on which you, as an employee of Company, will protect and keep confidential certain information received during your employment with\nCompany and pursuant to which you agree to assign certain Proprietary Developments to Company.\nAs an essential element of the Company's offer of employment to you, you hereby agree to be bound by the following:\n1. DEFINITIONS:\nIn this Agreement:\n(a) "Confidential Information" means the whole or any portion of any data or information about the business of the Companies that the\nCompanies protect from public disclosure. Confidential Information relates to Companies' services, products, processes or techniques,\nas well as to the business, services, products, processes and techniques of Companies' clients, regardless of whether or not that\ninformation is copyrighted, patented or patentable. Confidential Information shall include but not be limited to:\n(i)\nexperimental techniques, proprietary assays, screening strategies and technologies, targets for drug discovery and chemical\nformulae;\n(ii)\ncommercial and financial information concerning the corporate, scientific, and pharmaceutical research activities and plans of\nCompanies including any information regarding Companies' costs, sales, income, salaries, customers, and all business\nopportunities or joint ventures considered by Companies, whether or not pursued; and\nC. Eugene Wright, III\nOct. 5, 2007\nPage 2 of 7\n(iii)\nany and all confidential know-how, Trade Secrets, and any and all oral, written, electronic or other confidential communications\nregarding any Proprietary Developments.\n(b)\n"Company's Business" means the specific biomedical research and development activities conducted by Companies including but not\nlimited to the discovery and development of novel calcium channel blockers for the purpose of treating diseases.\n(c) "Company" shall mean Neuromed Pharmaceuticals Inc. and any affiliated companies.\n(d)\n"Companies" shall mean the Company and Neuromed Pharmaceuticals Ltd. and any affiliated companies.\n(e)\n"Proprietary Development" means a development or developments including, without limitation:\n(i)\nenhancements, modifications, additions or other improvements to the intellectual property or assets owned, licensed, sold,\nmarketed or used by Companies in connection with Companies' Business;\n(ii)\ntrademarks, copyrights, trade names, business names, logos, design marks and other proprietary marks;\n(iii)\ninventions, devices, discoveries, concepts, ideas, formulae, know-how, processes, techniques, systems, methods and any\nimprovements, enhancements and modifications thereto, whether patented or not; developed, created, generated, contributed to or\nreduced to practice by you alone or jointly with others pursuant to your activities as an employee, director, officer or consultant of\nCompany and which results from tasks assigned to you by Company or which results from the use of the premises or property\n(including equipment, supplies or Confidential Information) owned, leased or licensed by Companies and which reasonably\nrelates to the Companies Business, or which results from or relates to working with Companies' clients, either directly or\nindirectly.\n(f)\n"Trade Secret(s)" shall mean any information falling under the definition of a Trade Secret pursuant to the Uniform Trade Secrets Act or,\nif applicable, the version thereof adopted by Pennsylvania. Trade Secrets include, but are not limited to, any useful process, machine or\nother device or composition of matter which is new and which is being used or studied by Companies and is not described in a patent or\ndescribed in any literature already published and distributed externally by Companies; the source code or algorithms of any software\ndeveloped or owned by Companies; any formula, plan, tool, machine, process or method employed by Companies, whether patentable\nor not; business plans and marketing concepts of Companies; marketing or sales information of Companies; financial information or\nprojections regarding Companies; financial, pricing and/or credit information regarding clients or vendors of Companies, and internal\npolicies and procedures of Companies.\n2. CONFIDENTIALITY:\n(a) Basic Obligation Of Confidentiality:\nYou acknowledge and agree that during your employment with Company, Companies may disclose to you, or you may otherwise be exposed\nto, Companies' Confidential Information. Company agrees to provide such access to you and you agree to receive and hold the Confidential\nInformation on the terms and conditions set out herein. Except as set out below,\nC. Eugene Wright, III\nOct. 5, 2007\nPage 3 of 7\nyou will keep strictly confidential all Confidential Information and all other information that you acquire, see, or are informed of, as a direct or\nindirect consequence of your involvement with Companies in any capacity or that is revealed to you by Companies or is generated through\nnegotiations or other activities of third parties in connection with your involvement, in any capacity, with Companies' Business.\n(b) Non-Disclosure:\nUnless the authorized representative of Company first gives you written permission to do so, you will not:\n(i)\nuse or duplicate Confidential Information or recollections thereof;\n(ii)\ndisclose Confidential Information or recollections thereof to any third party;\nor\n(iii)\ntranslate or adapt any Confidentia Information or permit any Confidential Information to be used, copied, translated or adapted.\n(c) Taking Precautions:\nYou will take all reasonable precautions necessary or prudent to prevent material in your possession or control that contains or refers to\nConfidential Information from being discovered, used, or copied by third parties.\n(d) Companies' Ownership of Confidential Information:\nAs between you and Companies, all right, title and interest in and to the Confidential Information, whether or not created or developed by you,\nis and shall remain Companies' property.\n(e) Control of Confidential Information and Return of Information:\nAll physical materials produced or prepared by you containing Confidential Information, including designs, formulae, memoranda, test results\nand notes of experiments, drawings, plans, prototypes, samples, accounts, reports, data, financial statements or proforma estimates and any\nother materials prepared in the course of your responsibilities or for the benefit of Companies shall belong to Companies, and you will turn\nover possession to Company of all such items in your possession or control promptly when Company requests you to do SO.\n(f) Purpose of Use:\nYou will use Confidential Information only for purposes authorized or directed by Company or Companies and its officers, and you will not\nseek access to any Confidential Information that is not relevant to or necessary for those purposes.\n(g) Extent and Duration of Obligation:\nExcept as Company agrees In writing, your obligations of confidentiality under this Agreement shall continue for the longer of:\n(i)\nten (10) years after the termination of your employment with Company;\nand\nC. Eugene Wright, III\nOct. 5, 2007\nPage 4 of 7\n(ii)\nwith respect to particular items of Confidentia Information or material, for so long as those items are not in the public domain,\nbut your obligations will continue if those items enter the public domain as a consequence of a breach of this Agreement or any\nother wrongful or negligent act or omission by you.\nThe restrictions in this Agreement regarding confidentiality will not apply to information which is known by you prior to your employment\nwith Company, except to the extent that such information was disclosed to you under a confidentiality agreement with a prior employer or to\nthe extent that value can be derived by a competitor from the manner in which such information has been compiled by you or others during\nyour employment by Company.\n3.\nASSIGNMENT OF PROPRIETARY DEVELOPMENTS:\n(a) Full Disclosure of Proprietary Developments:\nYou agree to promptly inform, and make full disclosure of, any Proprietary Development to Company. If required by Company, you will\ndisclose in writing in a log book or such other form or device provided for such purpose by Company, the details of all Proprietary\nDevelopments that you are involved with or responsible for as an employee of Company.\n(b) Assignment of Proprietary Developments to Company:\nYou will assign, and do hereby irrevocably assign and transfer to Company or to Company's designee, your entire right, title and interest in\nand to all Proprietary Developments and any Confidential Information. Without limiting the foregoing, you agree to waive all legal and moral\nrights in such Proprietary Developments, and you agree that all Proprietary Developments to which you contribute in any way while an\nemployee of Company and within the scope of your employment shall be deemed to be "works made in the course of employment" and that\nCompany, or Company's designee, shall be deemed the owner thereof. To the extent that you may own or acquire legal title to any of such\nProprietary Developments, you hereby declare and confirm that such legal title is, and will be, held in a fiduciary capacity by you only as\ntrustee and agent for Company. You agree that Company, or Company's designee, will be the exclusive owner of all of your right title and\ninterest in and to each Proprietary Development throughout the world, including all Trade Secret, patent, copyright, trademark, industrial\ndesign\nand\nall\nother intellectual property rights of any kind therein. To the extent that any of the works prepared by or to which you contribute\nwithin the scope of your employment with Company, shall be deemed by a court of competent jurisdiction not to be a "work made for hire",\nthis\nAgreement shall operate as an irrevocable assignment by you to Company, or Company's designee, of all right, title and interest in and to\nsuch works, including, without limitation, all worldwide copyright interests therein, in perpetuity.\n(c) Notice:\nNotwithstanding any other provision of this Agreement to the contrary, this Agreement does not obligate you to assign or offer to assign to\nCompany any of your rights in an invention for which no equipment, supplies, facilities or Confidential Information of Company was used and\nwhich was developed entirely on your own time, unless: (1) the invention relates (a) directly to the business of Companies or (b) to\nCompanies' actual or demonstrably anticipated research or development, or (2) the invention results from any work performed by you for\nCompany. This Notice satisfies the written notice and other requirements of RCW 49.44.140.\n(d) Assistance with Proceedings:\nYou further agree at Company's request to assist in drafting of any description or specification of the Proprietary Development as may be\nrequired for any patent application and to assist with any opposition to, or intervention regarding, an application for any patent, copyright\nor\ntrademark\nC. Eugene Wright, III\nOct. 5, 2007\nPage 5 of 7\nor other proceedings relating to any Proprietary Developments. Without limiting the foregoing you agree to execute:\n(i)\nall instruments that Company may reasonably require to effect, protect, perfect, register, record or patent any Proprietary\nDevelopments or Confidential Information, or related rights, or Company's interest therein; and\n(ii)\nall papers that Company reasonably considers necessary or helpful in obtaining or maintaining such interests and rights during\nthe prosecution of applications thereon or during the conduct of any interference, litigation, opposition, or any other matter in\nconnection therewith;\nprovided that all expenses incident to such activities will 'be borne by Company.\nYour obligations under this Section will continue in perpetuity beyond any termination of your employment with Company, respecting any\nProprietary Developments created during your employment with Company, or any Proprietary Developments perfected or reduced to specific\nform after termination of your employment with Company, if the conception of the Proprietary Development arose during the time of your\nemployment with Company. You agree that Company's rights under this Section shall not be limited to the United States, but shall extend to\nevery country of the world.\n(e) Inventions and Improvements:\nYou further agree to treat all information relating to any Proprietary Development as Confidential Information owned by Company and you\nwill disclose same only to your immediate superior or as he or she may direct.\n(f) Publicity and Publication:\nWithout the prior written consent of the Chief Scientific Officer or the Chief Executive Officer of Company you will not make or give any\npublic announcements or press releases or statements to the public or the press regarding any Proprietary Developments, Confidential\nInformation or other information concerning Companies' Business. You also will not submit an abstract or publication for review or\npublication until you have prior written approval to do so from the Chief Scientific Officer of Company.\n4.\nMISCELLANEOUS:\n(a) Governing Law:\nThis Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania.\n(b) Equitable Remedies:\nYou acknowledge and agree that the restrictions contained in this Agreement, in view of the nature of the business in which the Companies are\nengaged, are reasonable and necessary in order to protect the legitimate interests of the Companies, and that any violation or threatened\nviolation thereof would result in irreparable injury to the Companies. You therefore agree that:\n(i)\nin the event of your violation or threatened violation of any of these restrictions, the Companies shall be entitled to obtain from\nany court of competent jurisdiction preliminary and permanent injunctive relief, or an appropriate decree of specific performance,\nwithout proof of actual loss or the need to post any bonds. You further\nC. Eugene Wright, III\nOct. 5, 2007\nPage 6 of 7\nagree that Companies shall be entitled to any and all other damages available at law and in equity, and an equitable accounting of\nall\nearnings, profits and other benefits arising from such violation, which rights shall be cumulative and in addition to any other\nrights or remedies to which the Companies may be entitled.\n(ii)\nYou shall indemnify and hold harmless the Companies and their officers, directors, and employees from and against any and all\nliabilities, losses, costs and expenses (including but not limited to, reasonable attorneys' fees), damages and injuries resulting\nfrom, or in connection with, any material breach of any provision of this Agreement by you\n(c) Amendments:\nNo amendment, modification, supplement or other purported alteration of this Agreement shall be binding unless it is in writing and signed by\nyou and by Companies.\n(d) Binding Nature of Agreement:\nYou agree that this Agreement is binding on your personal representatives. You also agree that the covenants and provisions contained in this\nAgreement shall survive and continue to bind you following the termination of your employment with Company regardless of how your\nemployment is terminated.\n(e) Independent Legal Advice:\nAs this is an important agreement for you and for Companies containing significan undertakings by you, Companies urge you to seek\nindependent legal advice regarding this Agreement prior to signing.\n(f) Severability:\nIf any part or Section of this Agreement is determined by a Court of competent jurisdiction to be void or unenforceable in whole or in part,\nthen such void or unenforceable part or Section shall be severed, and shall not affect or impair the enforceability or validity of the balance of\nthe Section or any other part of this Agreement.\n(g)\nNo Waiver:\nNo waiver, delay, indulgence, or failure to act by Companies regarding any particular default or omission by you shall affect or impair any of\nCompanies' rights or remedies regarding that or any subsequent default or omission that is not expressly waived in writing.\n(h) No Other Obligations:\nYou represent, except as you have disclosed to Companies in writing on the date hereof, that you have no agreements with or obligations to\nothers with respect to the matters covered by this Agreement or concerning the Confidential Information that are in conflict with anything in\nthis Agreement.\nC. Eugene Wright, III\nOct. 5, 2007\nPage 7 of 7\nNEUROMED PHARMACEUTICALS INC.\nBy: /s/ Christopher C. Gallen, MD, PhD\nChristopher C. Gallen, MD, PhD\nPresident & CEO\nNEUROMED PHARMACEUTICALS LTD.\nBy: /s/ Christopher C. Gallen, MD, PhD\nChristopher C. Gallen, MD, PhD\nPresident & CEO\nACCEPTED AND AGREED TO THIS 11th DAY OF October, 2007. BY MY SIGNATURE BELOW, I AFFIRM THAT I HAVE READ AND\nUNDERSTAND THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AND AGREE TO BE BOUND BY THEM.\n/s/ C. Eugene Wright, III\nC. Eugene Wright, III	EX-10.48 15 dex1048.htm CONFIDENTIALITY AND ASSIGNMENT OF PROPRIETARY DEVELOPMENTS\nAGREEMENT\nExhibit 10.48\nLOGO\nOctober 5, 2007\nChristopher C. Gallen, MD, PhD\nTELEPHONE: 484.533.6900\nEmail: cgallen@neuromed.com\nSchedule “B”\nC. Eugene Wright, III\n16 Carhart Court\nPittstown, New Jersey 08867\nDear Eugene:\nRe: Confidentiality and Assignment of Proprietary Developments Agreement\nThe purpose of this exhibit is to describe and record the Agreement between you and Neuromed Pharmaceuticals Inc. (“Company”) concerning\nthe terms on which you, as an employee of Company, will protect and keep confidential certain information received during your employment with\nCompany and pursuant to which you agree to assign certain Proprietary Developments to Company.\nAs an essential element of the Company’s offer of employment to you, you hereby agree to be bound by the following:\n1. DEFINITIONS:\nIn this Agreement:\n(a) “Confidential Information” means the whole or any portion of any data or information about the business of the Companies that the\nCompanies protect from public disclosure. Confidential Information relates to Companies’ services, products, processes or techniques,\nas well as to the business, services, products, processes and techniques of Companies’ clients, regardless of whether or not that\ninformation is copyrighted, patented or patentable. Confidential Information shall include but not be limited to:\n(i) experimental techniques, proprietary assays, screening strategies and technologies, targets for drug discovery and chemical\nformulae;\n(ii) commercial and financial information concerning the corporate, scientific, and pharmaceutical research activities and plans of\nCompanies including any information regarding Companies’ costs, sales, income, salaries, customers, and all business\nopportunities or joint ventures considered by Companies, whether or not pursued; and\nC. Eugene Wright, III\nOct. 5, 2007\nPage2of7\n(iii) any and all confidential know-how, Trade Secrets, and any and all oral, written, electronic or other confidential communications\nregarding any Proprietary Developments.\n(b) “Company’s Business” means the specific biomedical research and development activities conducted by Companies including but not\nlimited to the discovery and development of novel calcium channel blockers for the purpose of treating diseases.\n(c) “Company” shall mean Neuromed Pharmaceuticals Inc. and any affiliated companies.\n(d) “Companies” shall mean the Company and Neuromed Pharmaceuticals Ltd. and any affiliated companies.\n(e) “Proprietary Development” means a development or developments including, without limitation:\n(i) enhancements, modifications, additions or other improvements to the intellectual property or assets owned, licensed, sold,\nmarketed or used by Companies in connection with Companies’ Business;\n(ii) trademarks, copyrights, trade names, business names, logos, design marks and other proprietary marks;\n(iii) inventions, devices, discoveries, concepts, ideas, formulae, know-how, processes, techniques, systems, methods and any\nimprovements, enhancements and modifications thereto, whether patented or not; developed, created, generated, contributed to or\nreduced to practice by you alone or jointly with others pursuant to your activities as an employee, director, officer or consultant of\nCompany and which results from tasks assigned to you by Company or which results from the use of the premises or property\n(including equipment, supplies or Confidential Information) owned, leased or licensed by Companies and which reasonably\nrelates to the Companies Business, or which results from or relates to working with Companies’ clients, either directly or\nindirectly.\n(f) “Trade Secret(s)” shall mean any information falling under the definition of a Trade Secret pursuant to the Uniform Trade Secrets Act or,\nif applicable, the version thereof adopted by Pennsylvania. Trade Secrets include, but are not limited to, any useful process, machine or\nother device or composition of matter which is new and which is being used or studied by Companies and is not described in a patent or\ndescribed in any literature already published and distributed externally by Companies; the source code or algorithms of any software\ndeveloped or owned by Companies; any formula, plan, tool, machine, process or method employed by Companies, whether patentable\nor not; business plans and marketing concepts of Companies; marketing or sales information of Companies; financial information or\nprojections regarding Companies; financial, pricing and/or credit information regarding clients or vendors of Companies, and internal\npolicies and procedures of Companies.\n2. CONFIDENTIALITY:\n(a) Basic Obligation Of Confidentiality:\nYou acknowledge and agree that during your employment with Company, Companies may disclose to you, or you may otherwise be exposed\nto, Companies’ Confidential Information. Company agrees to provide such access to you and you agree to receive and hold the Confidential\nInformation on the terms and conditions set out herein. Except as set out below,\nC. Eugene Wright, III\nOct. 5, 2007\nPage3of7\nyou will keep strictly confidential all Confidential Information and all other information that you acquire, see, or are informed of, as a direct or\nindirect consequence of your involvement with Companies in any capacity or that is revealed to you by Companies or is generated through\nnegotiations or other activities of third parties in connection with your involvement, in any capacity, with Companies’ Business.\n(b) Non-Disclosure:\nUnless the authorized representative of Company first gives you written permission to do so, you will not:\n(i) use or duplicate Confidential Information or recollections thereof;\n(ii) disclose Confidential Information or recollections thereof to any third party;\nor\n(iii) translate or adapt any Confidential Information or permit any Confidential Information to be used, copied, translated or adapted.\n(c) Taking Precautions:\nYou will take all reasonable precautions necessary or prudent to prevent material in your possession or control that contains or refers to\nConfidential Information from being discovered, used, or copied by third parties.\n(d) Companies’ Ownership of Confidential Information:\nAs between you and Companies, all right, title and interest in and to the Confidential Information, whether or not created or developed by you,\nis and shall remain Companies’ property.\n(e) Control of Confidential Information and Return of Information:\nAll physical materials produced or prepared by you containing Confidential Information, including designs, formulae, memoranda, test results\nand notes of experiments, drawings, plans, prototypes, samples, accounts, reports, data, financial statements or proforma estimates and any\nother materials prepared in the course of your responsibilities or for the benefit of Companies shall belong to Companies, and you will turn\nover possession to Company of all such items in your possession or control promptly when Company requests you to do so.\n(f) Purpose of Use:\nYou will use Confidential Information only for purposes authorized or directed by Company or Companies and its officers, and you will not\nseek access to any Confidential Information that is not relevant to or necessary for those purposes.\n(g) Extent and Duration of Obligation:\nExcept as Company agrees In writing, your obligations of confidentiality under this Agreement shall continue for the longer of:\n(i) ten (10) years after the termination of your employment with Company;\nand\nC. Eugene Wright, III\nOct. 5, 2007\nPage4of7\n(ii) with respect to particular items of Confidential Information or material, for so long as those items are not in the public domain,\nbut your obligations will continue if those items enter the public domain as a consequence of a breach of this Agreement or any\nother wrongful or negligent act or omission by you.\nThe restrictions in this Agreement regarding confidentiality will not apply to information which is known by you prior to your employment\nwith Company, except to the extent that such information was disclosed to you under a confidentiality agreement with a prior employer or to\nthe extent that value can be derived by a competitor from the manner in which such information has been compiled by you or others during\nyour employment by Company.\n3. ASSIGNMENT OF PROPRIETARY DEVELOPMENTS:\n(a) Full Disclosure of Proprietary Developments:\nYou agree to promptly inform, and make full disclosure of, any Proprietary Development to Company. If required by Company, you will\ndisclose in writing in a log book or such other form or device provided for such purpose by Company, the details of all Proprietary\nDevelopments that you are involved with or responsible for as an employee of Company.\n(b) Assignment of Proprietary Developments to Company:\nYou will assign, and do hereby irrevocably assign and transfer to Company or to Company’s designee, your entire right, title and interest in\nand to all Proprietary Developments and any Confidential Information. Without limiting the foregoing, you agree to waive all legal and moral\nrights in such Proprietary Developments, and you agree that all Proprietary Developments to which you contribute in any way while an\nemployee of Company and within the scope of your employment shall be deemed to be “works made in the course of employment” and that\nCompany, or Company’s designee, shall be deemed the owner thereof. To the extent that you may own or acquire legal title to any of such\nProprietary Developments, you hereby declare and confirm that such legal title is, and will be, held in a fiduciary capacity by you only as\ntrustee and agent for Company. You agree that Company, or Company’s designee, will be the exclusive owner of all of your right title and\ninterest in and to each Proprietary Development throughout the world, including all Trade Secret, patent, copyright, trademark, industrial\ndesign and all other intellectual property rights of any kind therein. To the extent that any of the works prepared by or to which you contribute\nwithin the scope of your employment with Company, shall be deemed by a court of competent jurisdiction not to be a “work made for hire”,\nthis Agreement shall operate as an irrevocable assignment by you to Company, or Company’s designee, of all right, title and interest in and to\nsuch works, including, without limitation, all worldwide copyright interests therein, in perpetuity.\n(c) Notice:\nNotwithstanding any other provision of this Agreement to the contrary, this Agreement does not obligate you to assign or offer to assign to\nCompany any of your rights in an invention for which no equipment, supplies, facilities or Confidential Information of Company was used and\nwhich was developed entirely on your own time, unless: (1) the invention relates (a) directly to the business of Companies or (b) to\nCompanies’ actual or demonstrably anticipated research or development, or (2) the invention results from any work performed by you for\nCompany. This Notice satisfies the written notice and other requirements of RCW 49.44.140.\n(d) Assistance with Proceedings:\nYou further agree at Company’s request to assist in drafting of any description or specification of the Proprietary Development as may be\nrequired for any patent application and to assist with any opposition to, or intervention regarding, an application for any patent, copyright or\ntrademark\nC. Eugene Wright, III\nOct. 5, 2007\nPage5of7\nor other proceedings relating to any Proprietary Developments. Without limiting the foregoing you agree to execute:\n(i) all instruments that Company may reasonably require to effect, protect, perfect, register, record or patent any Proprietary\nDevelopments or Confidential Information, or related rights, or Company’s interest therein; and\n(ii) all papers that Company reasonably considers necessary or helpful in obtaining or maintaining such interests and rights during\nthe prosecution of applications thereon or during the conduct of any interference, litigation, opposition, or any other matter in\nconnection therewith;\nprovided that all expenses incident to such activities will `be borne by Company.\nYour obligations under this Section will continue in perpetuity beyond any termination of your employment with Company, respecting any\nProprietary Developments created during your employment with Company, or any Proprietary Developments perfected or reduced to specific\nform after termination of your employment with Company, if the conception of the Proprietary Development arose during the time of your\nemployment with Company. You agree that Company’s rights under this Section shall not be limited to the United States, but shall extend to\nevery country of the world.\n(e) Inventions and Improvements:\nYou further agree to treat all information relating to any Proprietary Development as Confidential Information owned by Company and you\nwill disclose same only to your immediate superior or as he or she may direct.\n(f) Publicity and Publication:\nWithout the prior written consent of the Chief Scientific Officer or the Chief Executive Officer of Company you will not make or give any\npublic announcements or press releases or statements to the public or the press regarding any Proprietary Developments, Confidential\nInformation or other information concerning Companies’ Business. You also will not submit an abstract or publication for review or\npublication until you have prior written approval to do so from the Chief Scientific Officer of Company.\n4. MISCELLANEOUS:\n(a) Governing Law:\nThis Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania.\n(b) Equitable Remedies:\nYou acknowledge and agree that the restrictions contained in this Agreement, in view of the nature of the business in which the Companies are\nengaged, are reasonable and necessary in order to protect the legitimate interests of the Companies, and that any violation or threatened\nviolation thereof would result in irreparable injury to the Companies. You therefore agree that:\n(i) in the event of your violation or threatened violation of any of these restrictions, the Companies shall be entitled to obtain from\nany court of competent jurisdiction preliminary and permanent injunctive relief, or an appropriate decree of specific performance,\nwithout proof of actual loss or the need to post any bonds. You further\nC. Eugene Wright, III\nOct. 5, 2007\nPage6of7\nagree that Companies shall be entitled to any and all other damages available at law and in equity, and an equitable accounting of\nall earnings, profits and other benefits arising from such violation, which rights shall be cumulative and in addition to any other\nrights or remedies to which the Companies may be entitled.\n(ii) You shall indemnify and hold harmless the Companies and their officers, directors, and employees from and against any and all\nliabilities, losses, costs and expenses (including but not limited to, reasonable attorneys’ fees), damages and injuries resulting\nfrom, or in connection with, any material breach of any provision of this Agreement by you.\n(c) Amendments:\nNo amendment, modification, supplement or other purported alteration of this Agreement shall be binding unless it is in writing and signed by\nyou and by Companies.\n(d) Binding Nature of Agreement:\nYou agree that this Agreement is binding on your personal representatives. You also agree that the covenants and provisions contained in this\nAgreement shall survive and continue to bind you following the termination of your employment with Company regardless of how your\nemployment is terminated.\n(e) Independent Legal Advice:\nAs this is an important agreement for you and for Companies containing significant undertakings by you, Companies urge you to seek\nindependent legal advice regarding this Agreement prior to signing.\n(f) Severability:\nIf any part or Section of this Agreement is determined by a Court of competent jurisdiction to be void or unenforceable in whole or in part,\nthen such void or unenforceable part or Section shall be severed, and shall not affect or impair the enforceability or validity of the balance of\nthe Section or any other part of this Agreement.\n(g) No Waiver:\nNo waiver, delay, indulgence, or failure to act by Companies regarding any particular default or omission by you shall affect or impair any of\nCompanies’ rights or remedies regarding that or any subsequent default or omission that is not expressly waived in writing.\n(h) No Other Obligations:\nYou represent, except as you have disclosed to Companies in writing on the date hereof, that you have no agreements with or obligations to\nothers with respect to the matters covered by this Agreement or concerning the Confidential Information that are in conflict with anything in\nthis Agreement.\nC. Eugene Wright, III\nOct. 5, 2007\nPage7of7\nNEUROMED PHARMACEUTICALS INC.\nBy: /s/ Christopher C. Gallen, MD, PhD\nChristopher C. Gallen, MD, PhD\nPresident & CEO\nNEUROMED PHARMACEUTICALS LTD.\nBy: /s/ Christopher C. Gallen, MD, PhD\nChristopher C. Gallen, MD, PhD\nPresident & CEO\nACCEPTED AND AGREED TO THIS 11 DAY OF October, 2007. BY MY SIGNATURE BELOW, I AFFIRM THAT I HAVE READ AND\nUNDERSTAND THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AND AGREE TO BE BOUND BY THEM.\n/s/ C. Eugene Wright, III\nC. Eugene Wright, III\nth
+5b070e9583099dfdcddc9c9c811b7d44.pdf	effective_date jurisdiction party term	EX-10.2 3 d124569dex102.htm EX-10.2\nExhibit 10.2\nDIRECTOR CONFIDENTIALITY AGREEMENT\nTHIS DIRECTOR CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into as of May 5, 2016 and is effective upon\nthe date hereof, by and between Endo International plc, a public limited company incorporated under the laws of Ireland (“Endo”), Todd B.\nSisitsky, an individual (“Sisitsky”), and TPG Global, LLC (“TPG” or, either Sisitsky or TPG, a “receiving party”).\nWHEREAS, concurrently with the execution of this Agreement, Sisitsky is being appointed to serve on the Board of Directors of Endo;\nand\nWHEREAS, in connection with Sisitsky’s appointment, the parties may disclose to each other certain non-public confidential and\nproprietary information pertaining to such possible relationship, as set forth below.\nNOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows:\n1. For purposes of this Agreement, “Confidential Information” shall mean all non-public and proprietary information that has been or will be\ndisclosed by one party, or one of its Affiliates to the other party, or one of its Affiliates, whether set forth orally or in writing which may\nrelate to among other things, their respective business interests, technical information, clinical data, product specifications, product\ndevelopment plans and ideas, marketing plans and ideas, manufacturing information, financial information, strategic considerations or\nbusiness operations. Endo Confidential Information may also include non-public and proprietary information of its Affiliates.\nFor purposes of this Agreement, “Affiliate” means with respect to a particular party, a person, corporation or partnership or other entity that\ncontrols, is controlled by or under common control with such party. For the purposes of this definition, “control” (including the correlative\nmeaning, the terms “controlled by” or “under common control with”) means the actual power, either directly or indirectly through one or\nmore intermediaries, to direct or cause the direction of the management and policies of such entity, whether by ownership of fifty percent\n(50%) or more of the voting stock of such entity, or by contract or otherwise.\n2. The parties hereby agree that the following shall not be considered Confidential Information subject to this Agreement:\n(a) information that, prior to the time of disclosure, is in the public domain;\n(b) information that, after disclosure, becomes part of the public domain by publication or otherwise; provided that such publication is\nnot in violation of this Agreement or, to the receiving party’s knowledge, any other confidentiality agreement to which Sisitsky, TPG\nor any of their respective Affiliates is party;\nDirector Confidentiality Agreement\n(c) information that the receiving party can establish in writing was already known to it or was in its possession prior to the time of\ndisclosure and was not acquired, directly or indirectly, from the disclosing party;\n(d) information that the receiving party lawfully received from a third party; provided however, that such third party was not obligated to\nhold such information in confidence;\n(e) information that was independently developed by the receiving party without reference to any Confidential Information as established\nby appropriate documentation; and\n(f) information that the receiving party is compelled to disclose by a court or other tribunal of competent jurisdiction; provided, however,\nthat in such case the receiving party shall immediately give as much advance notice as feasible to the disclosing party so that the\ndisclosing party may seek a protective order or other remedy from said court or tribunal. In any event, the receiving party shall\ndisclose only that portion of the Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed\nand will exercise reasonable efforts to ensure that any such information so disclosed will be accorded confidential treatment by said\ncourt or tribunal.\n3. Subject to paragraph 4, the receiving party and the TPG Recipients (as defined below) shall not use Confidential Information of the\ndisclosing party for any purpose other than for the purpose of Sisitsky’s service as a director of Endo; provided, however, that Sisitsky and\nthe TPG Recipients (as defined below) shall be entitled, subject to compliance with applicable law, to use Confidential Information for\npurposes of monitoring, managing and making investment, voting, governance or other decisions relating to TPG’s and its Affiliates’\ninvestment in Endo.\n4. The receiving party will not disclose any such Confidential Information to any person; provided, however, that Confidential Information\nmay be disclosed by Sisitsky or any TPG Recipient to (i) in the case of Confidential Information that is financial performance information\nregarding the Company, any employees, attorneys, independent contractors designated as senior advisors, directors and officers of TPG or\nits Affiliates (excluding portfolio companies) (the “TPG Recipients”) and (ii) in all cases, to TPG Recipients who serve on the investment\ncommittee of TPG Capital or to any partners, employees and senior advisors of TPG or any of its Affiliates that need to know such\ninformation for the purposes set forth in paragraph 3, in the case of each of clauses (i) and (ii) so long as such TPG Recipients have\nrelevant knowledge or expertise and are bound by confidentiality obligations at least as restrictive as those contained in this Agreement.\nTPG represents and warrants that it has instituted reasonable procedures to ensure compliance with the foregoing restrictions on disclosures\nto TPG Recipients and agrees that it will reasonably cooperate with Endo to institute further procedures that are necessary or appropriate to\nprotect Confidential Information of Endo.\n2\nDirector Confidentiality Agreement\n5. Upon written request of the disclosing party, the receiving party shall return promptly to the disclosing party (or, at the receiving party’s\noption, destroy) all Confidential Information furnished to it, including any copies thereof and notes, extracts, or derivative materials based\nthereon (provided that if the receiving party so opts to destroy, the receiving party shall confirm and certify such destruction in writing to\nthe disclosing party); and until this Agreement is terminated or until the expiration of the confidentiality obligations set forth in this\nAgreement, shall keep confidential and not use in any way detrimental to the disclosing party any analyses, compilations, studies or other\ndocuments which reflect any of the Confidential Information. Notwithstanding the foregoing provision, the receiving party shall not be\nrequired to delete the Confidential Information from back-up archival storage and may retain one (1) copy of Confidential Information in\nits confidential files solely for record keeping and compliance purposes.\n6. Title to, and all rights emanating from the ownership of, all Confidential Information disclosed under this Agreement shall remain vested in\nthe disclosing party or any of its Affiliates. Nothing herein shall be construed as granting any license or option, in favor of the receiving\nparty, in such Confidential Information under any patent, copyright and/or any other rights now or hereafter held by the disclosing party or\nany Affiliate of the disclosing party in or as a result of such Confidential Information other than as specifically agreed upon by the parties.\n7. Each receiving party acknowledges that, by virtue of the examination of the Confidential Information in accordance with the terms of this\nAgreement, it and its Affiliates, employees, attorneys, independent contractors designated as senior advisors, directors and officers may\nhave access to material, non-public information, and it is aware (and will so advise its Affiliates, employees, attorneys, independent\ncontractors designated as senior advisors, directors and officers who are informed as to the matters which are subject to this Agreement and\nwho receive Confidential Information) that applicable securities laws, including United States federal and state securities laws, generally\nprohibit any person who has material, non-public information concerning a publicly-traded company from purchasing or selling any\nsecurities of such company or from communicating such information to any other person or entity under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities. Each receiving party agrees that it will not, and will\ndirect its Affiliates, employees, attorneys, independent contractors designated as senior advisors, directors and officers who have received\nConfidential Information not to, use or permit any third party to use any Confidential Information in contravention of the United States\nfederal and state securities laws, including the Securities Exchange Act of 1934, as amended, including the rules and regulations\npromulgated thereunder.\n8. The execution and performance of this Agreement does not obligate the parties, or any of the parties’ Affiliates, to enter into any other\nagreement or to perform any obligations other than as specified herein.\n3\nDirector Confidentiality Agreement\n9. The receiving party agrees that the disclosure of Confidential Information to any third party without the express written consent of the\ndisclosing party may cause irreparable harm to the disclosing party or its Affiliates, and that any breach or threatened breach of this\nAgreement by the receiving party will entitle the disclosing party or any of its Affiliates to seek injunctive relief, in addition to any other\nlegal remedies available to it, in any court of competent jurisdiction.\n10. No failure or delay by the disclosing party or any of its Affiliates in exercising any right, power, or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other\nright, power or privilege hereunder.\n11. The parties hereby agree that this Agreement represents the entire agreement between the parties with respect to the subject matter hereof\nand supersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the handling of\nConfidential Information (including the Confidentiality Agreement by and among Endo Pharmaceuticals, Inc., Sisitsky and TPG, dated\nApril 25, 2016), whether written, oral, visual, audio or in any other medium whatsoever. This Agreement shall be governed by the laws of\nthe Commonwealth of Pennsylvania without reference to its conflict of laws rules. This Agreement may not be amended or in any manner\nmodified except by a written instrument signed by authorized representatives of both parties. If any provision of this Agreement is found to\nbe unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the\nlimited extent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein.\n12. This Agreement shall terminate and all obligations and rights hereunder shall expire upon the first anniversary of the first date on which\nSisitsky is no longer a member of the board of directors of Endo.\n13. This Agreement shall be binding on each party’s successors and assigns.\n14. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute\nthe same agreement. Signatures to this Agreement transmitted by facsimile, by electronic mail in “portable document format” (“.pdf”), or\nby any other electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as\nphysical delivery of the paper document bearing the original signature.\n4\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nENDO INTERNATIONAL PLC\nBy: /s/ Rajiv De Silva\nBy: /s/ Todd B. Sisitsky\nName: Rajiv De Silva\nTodd B. Sisitsky\nTitle: President and CEO\nTPG GLOBAL, LLC\nBy: /s/ Clive Bode\nName: Clive Bode\nTitle: Vice President\n[Signature Page to Director Confidentiality Agreement]	EX-10.2 3 d124569dex102.htm EX-10.2\nExhibit 10.2\nDIRECTOR CONFIDENTIALITY AGREEMENT\nTHIS DIRECTOR CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into as of May 5, 2016 and is effective upon\nthe date hereof, by and between Endo International plc, a public limited company incorporated under the laws of Ireland (“Endo”), Todd B.\nSisitsky, an individual (“Sisitsky”), and TPG Global, LLC (“TPG” or, either Sisitsky or TPG, a “receiving party”).\n \n \n \nWHEREAS, concurrently with the execution of this Agreement, Sisitsky is being appointed to serve on the Board of Directors of Endo;\nand\nWHEREAS, in connection with Sisitsky’s appointment, the parties may disclose to each other certain non-public confidential and\nproprietary information pertaining to such possible relationship, as set forth below.\nNOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows:\n1. For purposes of this Agreement, “Confidential Information” shall mean all non-public and proprietary information that has been or will be\ndisclosed by one party, or one of its Affiliates to the other party, or one of its Affiliates, whether set forth orally or in writing which may\nrelate to among other things, their respective business interests, technical information, clinical data, product specifications, product\ndevelopment plans and ideas, marketing plans and ideas, manufacturing information, financial information, strategic considerations or\nbusiness operations. Endo Confidential Information may also include non-public and proprietary information of its Affiliates.\nFor purposes of this Agreement, “Affiliate” means with respect to a particular party, a person, corporation or partnership or other entity that\ncontrols, is controlled by or under common control with such party. For the purposes of this definition, “control” (including the correlative\nmeaning, the terms “controlled by” or “under common control with”) means the actual power, either directly or indirectly through one or\nmore intermediaries, to direct or cause the direction of the management and policies of such entity, whether by ownership of fifty percent\n(50%) or more of the voting stock of such entity, or by contract or otherwise.\n2. The parties hereby agree that the following shall not be considered Confidential Information subject to this Agreement:\n(a) information that, prior to the time of disclosure, is in the public domain;\n(b) information that, after disclosure, becomes part of the public domain by publication or otherwise; provided that such publication is\nnot in violation of this Agreement or, to the receiving party’s knowledge, any other confidentiality agreement to which Sisitsky, TPG\nor any of their respective Affiliates is party;\nDirector Confidentiality Agreement\n(c) information that the receiving party can establish in writing was already known to it or was in its possession prior to the time of\ndisclosure and was not acquired, directly or indirectly, from the disclosing party;\n(d) information that the receiving party lawfully received from a third party; provided however, that such third party was not obligated to\nhold such information in confidence;\n(e) information that was independently developed by the receiving party without reference to any Confidential Information as established\nby appropriate documentation; and\n(f) information that the receiving party is compelled to disclose by a court or other tribunal of competent jurisdiction; provided, however,\nthat in such case the receiving party shall immediately give as much advance notice as feasible to the disclosing party so that the\ndisclosing party may seek a protective order or other remedy from said court or tribunal. In any event, the receiving party shall\ndisclose only that portion of the Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed\nand will exercise reasonable efforts to ensure that any such information so disclosed will be accorded confidential treatment by said\ncourt or tribunal.\nSubject to paragraph 4, the receiving party and the TPG Recipients (as defined below) shall not use Confidential Information of the\ndisclosing party for any purpose other than for the purpose of Sisitsky’s service as a director of Endo; provided, however, that Sisitsky and\nthe TPG Recipients (as defined below) shall be entitled, subject to compliance with applicable law, to use Confidential Information for\npurposes of monitoring, managing and making investment, voting, governance or other decisions relating to TPG’s and its Affiliates’\ninvestment in Endo.\nThe receiving party will not disclose any such Confidential Information to any person; provided, however, that Confidential Information\nmay be disclosed by Sisitsky or any TPG Recipient to (i) in the case of Confidential Information that is financial performance information\nregarding the Company, any employees, attorneys, independent contractors designated as senior advisors, directors and officers of TPG or\nits Affiliates (excluding portfolio companies) (the “TPG Recipients”) and (ii) in all cases, to TPG Recipients who serve on the investment\ncommittee of TPG Capital or to any partners, employees and senior advisors of TPG or any of its Affiliates that need to know such\ninformation for the purposes set forth in paragraph 3, in the case of each of clauses (i) and (ii) so long as such TPG Recipients have\nrelevant knowledge or expertise and are bound by confidentiality obligations at least as restrictive as those contained in this Agreement.\nTPG represents and warrants that it has instituted reasonable procedures to ensure compliance with the foregoing restrictions on disclosures\nto TPG Recipients and agrees that it will reasonably cooperate with Endo to institute further procedures that are necessary or appropriate to\nprotect Confidential Information of Endo.\nDirector Confidentiality Agreement\nUpon written request of the disclosing party, the receiving party shall return promptly to the disclosing party (or, at the receiving party’s\noption, destroy) all Confidential Information furnished to it, including any copies thereof and notes, extracts, or derivative materials based\nthereon (provided that if the receiving party so opts to destroy, the receiving party shall confirm and certify such destruction in writing to\nthe disclosing party); and until this Agreement is terminated or until the expiration of the confidentiality obligations set forth in this\nAgreement, shall keep confidential and not use in any way detrimental to the disclosing party any analyses, compilations, studies or other\ndocuments which reflect any of the Confidential Information. Notwithstanding the foregoing provision, the receiving party shall not be\nrequired to delete the Confidential Information from back-up archival storage and may retain one (1) copy of Confidential Information in\nits confidential files solely for record keeping and compliance purposes.\nTitle to, and all rights emanating from the ownership of, all Confidential Information disclosed under this Agreement shall remain vested in\nthe disclosing party or any of its Affiliates. Nothing herein shall be construed as granting any license or option, in favor of the receiving\nparty, in such Confidential Information under any patent, copyright and/or any other rights now or hereafter held by the disclosing party or\nany Affiliate of the disclosing party in or as a result of such Confidential Information other than as specifically agreed upon by the parties.\nEach receiving party acknowledges that, by virtue of the examination of the Confidential Information in accordance with the terms of this\nAgreement, it and its Affiliates, employees, attorneys, independent contractors designated as senior advisors, directors and officers may\nhave access to material, non-public information, and it is aware (and will so advise its Affiliates, employees, attorneys, independent\ncontractors designated as senior advisors, directors and officers who are informed as to the matters which are subject to this Agreement and\nwho receive Confidential Information) that applicable securities laws, including United States federal and state securities laws, generally\nprohibit any person who has material, non-public information concerning a publicly-traded company from purchasing or selling any\nsecurities of such company or from communicating such information to any other person or entity under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities. Each receiving party agrees that it will not, and will\ndirect its Affiliates, employees, attorneys, independent contractors designated as senior advisors, directors and officers who have received\nConfidential Information not to, use or permit any third party to use any Confidential Information in contravention of the United States\nfederal and state securities laws, including the Securities Exchange Act of 1934, as amended, including the rules and regulations\npromulgated thereunder.\nThe execution and performance of this Agreement does not obligate the parties, or any of the parties’ Affiliates, to enter into any other\nagreement or to perform any obligations other than as specified herein.\n3\n10. 11. 12. 13. 14. Director Confidentiality Agreement\nThe receiving party agrees that the disclosure of Confidential Information to any third party without the express written consent of the\ndisclosing party may cause irreparable harm to the disclosing party or its Affiliates, and that any breach or threatened breach of this\nAgreement by the receiving party will entitle the disclosing party or any of its Affiliates to seek injunctive relief, in addition to any other\nlegal remedies available to it, in any court of competent jurisdiction.\nNo failure or delay by the disclosing party or any of its Affiliates in exercising any right, power, or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other\nright, power or privilege hereunder.\nThe parties hereby agree that this Agreement represents the entire agreement between the parties with respect to the subject matter hereof\nand supersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the handling of\nConfidential Information (including the Confidentiality Agreement by and among Endo Pharmaceuticals, Inc., Sisitsky and TPG, dated\nApril 25, 2016), whether written, oral, visual, audio or in any other medium whatsoever. This Agreement shall be governed by the laws of\nthe Commonwealth of Pennsylvania without reference to its conflict of laws rules. This Agreement may not be amended or in any manner\nmodified except by a written instrument signed by authorized representatives of both parties. If any provision of this Agreement is found to\nbe unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the\nlimited extent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein.\nThis Agreement shall terminate and all obligations and rights hereunder shall expire upon the first anniversary of the first date on which\nSisitsky is no longer a member of the board of directors of Endo.\nThis Agreement shall be binding on each party’s successors and assigns.\nThis Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute\nthe same agreement. Signatures to this Agreement transmitted by facsimile, by electronic mail in “portable document format” (“.pdf”), or\nby any other electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as\nphysical delivery of the paper document bearing the original signature.\n4\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nENDO INTERNATIONAL PLC\nBy:  /s/ Rajiv De Silva By: /s/ Todd B. Sisitsky\nName: Rajiv De Silva Todd B. Sisitsky\nTitle: President and CEO\nTPG GLOBAL, LL.C\nBy:  /s/ Clive Bode\nName: Clive Bode\nTitle: Vice President\n[Signature Page to Director Confidentiality Agreement]	EX-10.2 3 d124569dex102.htm EX-10.2\nExhibit 10.2\nDIRECTOR CONFIDENTIALITY AGREEMENT\nTHIS DIRECTOR CONFIDENTIALITY AGREEMENT (this "Agreement") is entered into as of May 5, 2016 and is effective upon\nthe date hereof, by and between Endo International plc, a public limited company incorporated under the laws of Ireland ("Endo"), Todd B.\nSisitsky, an individual ("Sisitsky."), and TPG Global, LLC ("TPG" or, either Sisitsky or TPG, a "receiving.party.")\nWHEREAS, concurrently with the execution of this Agreement, Sisitsky is being appointed to serve on the Board of Directors of Endo;\nand\nWHEREAS, in connection with Sisitsky's appointment, the parties may disclose to each other certain non-public confidential and\nproprietary information pertaining to such possible relationship, as set forth below.\nNOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows:\n1.\nFor purposes of this Agreement, "Confidential Information" shall mean all non-public and proprietary information that has been or will be\ndisclosed by one party, or one of its Affiliates to the other party, or one of its Affiliates, whether set forth orally or in writing which may\nrelate to among other things, their respective business interests, technical information, clinical data, product specifications, product\ndevelopment plans and ideas, marketing plans and ideas, manufacturing information, financial information, strategic considerations\nor\nbusiness operations. Endo Confidential Information may also include non-public and proprietary information of its Affiliates.\nFor purposes of this Agreement, "Affiliate" means with respect to a particular party, a person, corporation or partnership or other entity that\ncontrols, is controlled by or under common control with such party. For the purposes of this definition, "control" (including the correlative\nmeaning, the terms "controlled by" or "under common control with") means the actual power, either directly or indirectly through one or\nmore intermediaries, to direct or cause the direction of the management and policies of such entity, whether by ownership of fifty percent\n(50%) or more of the voting stock of such entity, or by contract or otherwise.\n2.\nThe parties hereby agree that the following shall not be considered Confidential Information subject to this Agreement:\n(a) information that, prior to the time of disclosure, is in the public domain;\n(b)\ninformation that, after disclosure, becomes part of the public domain by publication or otherwise; provided that such publication is\nnot in violation of this Agreement or, to the receiving party's knowledge, any other confidentiality agreement to which Sisitsky, TPG\nor any of their respective Affiliates is party;\nDirector Confidentiality Agreement\n(c)\ninformation that the receiving party can establish in writing was already known to it or was in its possession prior to the time of\ndisclosure and was not acquired, directly or indirectly, from the disclosing party;\n(d)\ninformation that the receiving party lawfully received from a third party; provided however, that such third party was not obligated to\nhold such information in confidence;\n(e)\ninformation that was independently developed by the receiving party without reference to any Confidential Information as established\nby appropriate documentation; and\n(f) information that the receiving party is compelled to disclose by a court or other tribunal of competent jurisdiction; provided, however,\nthat in such case the receiving party shall immediately give as much advance notice as feasible to the disclosing party so that the\ndisclosing party may seek a protective order or other remedy from said court or tribunal. In any event, the receiving party shall\ndisclose only that portion of the Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed\nand will exercise reasonable efforts to ensure that any such information so disclosed will be accorded confidential treatment by said\ncourt or tribunal.\n3.\nSubject to paragraph 4, the receiving party and the TPG Recipients (as defined below) shall not use Confidential Information of the\ndisclosing party for any purpose other than for the purpose of Sisitsky's service as a director of Endo; provided, however, that Sisitsky and\nthe TPG Recipients (as defined below) shall be entitled, subject to compliance with applicable law, to use Confidential Information for\npurposes of monitoring, managing and making investment, voting, governance or other decisions relating to TPG'S and its Affiliates'\ninvestment in Endo.\n4.\nThe receiving party will not disclose any such Confidential Information to any person; provided, however, that Confidential Information\nmay be disclosed by Sisitsky or any TPG Recipient to (i) in the case of Confidential Information that is financial performance information\nregarding the Company, any employees, attorneys, independent contractors designated as senior advisors, directors and officers of TPG or\nits Affiliates (excluding portfolio companies) (the "TPG Recipients") and (ii) in all cases, to TPG Recipients who serve on the investment\ncommittee of TPG Capital or to any partners, employees and senior advisors of TPG or any of its Affiliates that need to know such\ninformation for the purposes set forth in paragraph 3, in the case of each of clauses (i) and (ii) so long as such TPG Recipients have\nrelevant knowledge or expertise and are bound by confidentiality obligations at least as restrictive as those contained in this Agreement.\nTPG represents and warrants that it has instituted reasonable procedures to ensure compliance with the foregoing restrictions on disclosures\nto TPG Recipients and agrees that it will reasonably cooperate with Endo to institute further procedures that are necessary or appropriate to\nprotect Confidential Information of Endo.\n2\nDirector Confidentiality Agreement\n5.\nUpon written request of the disclosing party, the receiving party shall return promptly to the disclosing party (or, at the receiving party's\noption, destroy) all Confidential Information furnished to it, including any copies thereof and notes, extracts, or derivative materials based\nthereon (provided that if the receiving party so opts to destroy, the receiving party shall confirm and certify such destruction in writing to\nthe disclosing party); and until this Agreement is terminated or until the expiration of the confidentiality obligations set forth in this\nAgreement, shall keep confidential and not use in any way detrimental to the disclosing party any analyses, compilations, studies or other\ndocuments which reflect any of the Confidential Information. Notwithstanding the foregoing provision, the receiving party shall not be\nrequired to delete the Confidential Information from back-up archival storage and may retain one (1) copy of Confidential Information\nin\nits confidential files solely for record keeping and compliance purposes.\n6.\nTitle to, and all rights emanating from the ownership of, all Confidential Information disclosed under this Agreement shall remain vested in\nthe disclosing party or any of its Affiliates. Nothing herein shall be construed as granting any license or option, in favor of the receiving\nparty, in such Confidential Information under any patent, copyright and/or any other rights now or hereafter held by the disclosing party or\nany Affiliate of the disclosing party in or as a result of such Confidential Information other than as specifically agreed upon by the parties.\n7.\nEach receiving party acknowledges that, by virtue of the examination of the Confidential Information in accordance with the terms of this\nAgreement, it and its Affiliates, employees, attorneys, independent contractors designated as senior advisors, directors and officers may\nhave access to material, non-public information, and it is aware (and will so advise its Affiliates, employees, attorneys, independent\ncontractors designated as senior advisors, directors and officers who are informed as to the matters which are subject to this Agreement and\nwho receive Confidential Information) that applicable securities laws, including United States federal and state securities laws, generally\nprohibit any person who has material, non-public information concerning a publicly-traded company from purchasing or selling any\nsecurities of such company or from communicating such information to any other person or entity under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities. Each receiving party agrees that it will not, and will\ndirect its Affiliates, employees, attorneys, independent contractors designated as senior advisors, directors and officers who have received\nConfidential Information not to, use or permit any third party to use any Confidential Information in contravention of the United States\nfederal and state securities laws, including the Securities Exchange Act of 1934, as amended, including the rules and regulations\npromulgated thereunder.\n8.\nThe execution and performance of this Agreement does not obligate the parties, or any of the parties' Affiliates, to enter into any other\nagreement or to perform any obligations other than as specified herein.\n3\nDirector Confidentiality Agreement\n9.\nThe receiving party agrees that the disclosure of Confidential Information to any third party without the express written consent of the\ndisclosing party may cause irreparable harm to the disclosing party or its Affiliates, and that any breach or threatened breach of this\nAgreement by the receiving party will entitle the disclosing party or any of its Affiliates to seek injunctive relief, in addition to any\nother\nlegal remedies available to it, in any court of competent jurisdiction.\n10. No failure or delay by the disclosing party or any of its Affiliates in exercising any right, power, or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other\nright, power or privilege hereunder.\n11. The parties hereby agree that this Agreement represents the entire agreement between the parties with respect to the subject matter hereof\nand supersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the handling of\nConfidential Information (including the Confidentiality Agreement by and among Endo Pharmaceuticals, Inc., Sisitsky and TPG, dated\nApril 25, 2016), whether written, oral, visual, audio or in any other medium whatsoever. This Agreement shall be governed by the laws of\nthe Commonwealth of Pennsylvania without reference to its conflict of laws rules. This Agreement may not be amended or in any manner\nmodified except by a written instrument signed by authorized representatives of both parties. If any provision of this Agreement is found to\nbe unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the\nlimited extent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein.\n12.\nThis Agreement shall terminate and all obligations and rights hereunder shall expire upon the first anniversary of the first date on which\nSisitsky is no longer a member of the board of directors of Endo.\n13.\nThis Agreement shall be binding on each party's successors and assigns.\n14. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute\nthe same agreement. Signatures to this Agreement transmitted by facsimile, by electronic mail in "portable document format" (".pdf"), or\nby any other electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as\nphysical delivery of the paper document bearing the original signature.\n4\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nENDO INTERNATIONAL PLC\nBy:\n/s/ Rajiv De Silva\nBy: /s/ Todd B. Sisitsky\nName: Rajiv De Silva\nTodd B. Sisitsky\nTitle: President and CEO\nTPG GLOBAL, LLC\nBy:\n/s/ Clive Bode\nName: Clive Bode\nTitle: Vice President\n[Signature Page to Director Confidentiality Agreement]	EX-10.2 3 d124569dex102.htm EX-10.2\nExhibit 10.2\nDIRECTOR CONFIDENTIALITY AGREEMENT\nTHIS DIRECTOR CONFIDENTIALITY AGREEMENT (this “Agreement”) is entered into as of May 5, 2016 and is effective upon\nthe date hereof, by and between Endo International plc, a public limited company incorporated under the laws of Ireland (“Endo”), Todd B.\nSisitsky, an individual (“Sisitsky”), and TPG Global, LLC (“TPG” or, either Sisitsky or TPG, a “receiving party”).\nWHEREAS, concurrently with the execution of this Agreement, Sisitsky is being appointed to serve on the Board of Directors of Endo;\nand\nWHEREAS, in connection with Sisitsky’s appointment, the parties may disclose to each other certain non-public confidential and\nproprietary information pertaining to such possible relationship, as set forth below.\nNOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows:\n1. For purposes of this Agreement, “Confidential Information” shall mean all non-public and proprietary information that has been or will be\ndisclosed by one party, or one of its Affiliates to the other party, or one of its Affiliates, whether set forth orally or in writing which may\nrelate to among other things, their respective business interests, technical information, clinical data, product specifications, product\ndevelopment plans and ideas, marketing plans and ideas, manufacturing information, financial information, strategic considerations or\nbusiness operations. Endo Confidential Information may also include non-public and proprietary information of its Affiliates.\nFor purposes of this Agreement, “Affiliate” means with respect to a particular party, a person, corporation or partnership or other entity that\ncontrols, is controlled by or under common control with such party. For the purposes of this definition, “control” (including the correlative\nmeaning, the terms “controlled by” or “under common control with”) means the actual power, either directly or indirectly through one or\nmore intermediaries, to direct or cause the direction of the management and policies of such entity, whether by ownership of fifty percent\n(50%) or more of the voting stock of such entity, or by contract or otherwise.\n2. The parties hereby agree that the following shall not be considered Confidential Information subject to this Agreement:\n(a) information that, prior to the time of disclosure, is in the public domain;\n(b) information that, after disclosure, becomes part of the public domain by publication or otherwise; provided that such publication is\nnot in violation of this Agreement or, to the receiving party’s knowledge, any other confidentiality agreement to which Sisitsky, TPG\nor any of their respective Affiliates is party;\nDirector Confidentiality Agreement\n(c) information that the receiving party can establish in writing was already known to it or was in its possession prior to the time of\ndisclosure and was not acquired, directly or indirectly, from the disclosing party;\n(d) information that the receiving party lawfully received from a third party; provided however, that such third party was not obligated to\nhold such information in confidence;\n(e) information that was independently developed by the receiving party without reference to any Confidential Information as established\nby appropriate documentation; and\n(f) information that the receiving party is compelled to disclose by a court or other tribunal of competent jurisdiction; provided, however,\nthat in such case the receiving party shall immediately give as much advance notice as feasible to the disclosing party so that the\ndisclosing party may seek a protective order or other remedy from said court or tribunal. In any event, the receiving party shall\ndisclose only that portion of the Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed\nand will exercise reasonable efforts to ensure that any such information so disclosed will be accorded confidential treatment by said\ncourt or tribunal.\n3. Subject to paragraph 4, the receiving party and the TPG Recipients (as defined below) shall not use Confidential Information of the\ndisclosing party for any purpose other than for the purpose of Sisitsky’s service as a director of Endo; provided, however, that Sisitsky and\nthe TPG Recipients (as defined below) shall be entitled, subject to compliance with applicable law, to use Confidential Information for\npurposes of monitoring, managing and making investment, voting, governance or other decisions relating to TPG’s and its Affiliates’\ninvestment in Endo.\n4. The receiving party will not disclose any such Confidential Information to any person; provided, however, that Confidential Information\nmay be disclosed by Sisitsky or any TPG Recipient to (i) in the case of Confidential Information that is financial performance information\nregarding the Company, any employees, attorneys, independent contractors designated as senior advisors, directors and officers of TPG or\nits Affiliates (excluding portfolio companies) (the “TPG Recipients”) and (ii) in all cases, to TPG Recipients who serve on the investment\ncommittee of TPG Capital or to any partners, employees and senior advisors of TPG or any of its Affiliates that need to know such\ninformation for the purposes set forth in paragraph 3, in the case of each of clauses (i) and (ii) so long as such TPG Recipients have\nrelevant knowledge or expertise and are bound by confidentiality obligations at least as restrictive as those contained in this Agreement.\nTPG represents and warrants that it has instituted reasonable procedures to ensure compliance with the foregoing restrictions on disclosures\nto TPG Recipients and agrees that it will reasonably cooperate with Endo to institute further procedures that are necessary or appropriate to\nprotect Confidential Information of Endo.\n2\nDirector Confidentiality Agreement\n5. Upon written request of the disclosing party, the receiving party shall return promptly to the disclosing party (or, at the receiving party’s\noption, destroy) all Confidential Information furnished to it, including any copies thereof and notes, extracts, or derivative materials based\nthereon (provided that if the receiving party so opts to destroy, the receiving party shall confirm and certify such destruction in writing to\nthe disclosing party); and until this Agreement is terminated or until the expiration of the confidentiality obligations set forth in this\nAgreement, shall keep confidential and not use in any way detrimental to the disclosing party any analyses, compilations, studies or other\ndocuments which reflect any of the Confidential Information. Notwithstanding the foregoing provision, the receiving party shall not be\nrequired to delete the Confidential Information from back-up archival storage and may retain one (1) copy of Confidential Information in\nits confidential files solely for record keeping and compliance purposes.\n6. Title to, and all rights emanating from the ownership of, all Confidential Information disclosed under this Agreement shall remain vested in\nthe disclosing party or any of its Affiliates. Nothing herein shall be construed as granting any license or option, in favor of the receiving\nparty, in such Confidential Information under any patent, copyright and/or any other rights now or hereafter held by the disclosing party or\nany Affiliate of the disclosing party in or as a result of such Confidential Information other than as specifically agreed upon by the parties.\n7. Each receiving party acknowledges that, by virtue of the examination of the Confidential Information in accordance with the terms of this\nAgreement, it and its Affiliates, employees, attorneys, independent contractors designated as senior advisors, directors and officers may\nhave access to material, non-public information, and it is aware (and will so advise its Affiliates, employees, attorneys, independent\ncontractors designated as senior advisors, directors and officers who are informed as to the matters which are subject to this Agreement and\nwho receive Confidential Information) that applicable securities laws, including United States federal and state securities laws, generally\nprohibit any person who has material, non-public information concerning a publicly-traded company from purchasing or selling any\nsecurities of such company or from communicating such information to any other person or entity under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities. Each receiving party agrees that it will not, and will\ndirect its Affiliates, employees, attorneys, independent contractors designated as senior advisors, directors and officers who have received\nConfidential Information not to, use or permit any third party to use any Confidential Information in contravention of the United States\nfederal and state securities laws, including the Securities Exchange Act of 1934, as amended, including the rules and regulations\npromulgated thereunder.\n8. The execution and performance of this Agreement does not obligate the parties, or any of the parties’ Affiliates, to enter into any other\nagreement or to perform any obligations other than as specified herein.\n3\nDirector Confidentiality Agreement\n9. The receiving party agrees that the disclosure of Confidential Information to any third party without the express written consent of the\ndisclosing party may cause irreparable harm to the disclosing party or its Affiliates, and that any breach or threatened breach of this\nAgreement by the receiving party will entitle the disclosing party or any of its Affiliates to seek injunctive relief, in addition to any other\nlegal remedies available to it, in any court of competent jurisdiction.\n10. No failure or delay by the disclosing party or any of its Affiliates in exercising any right, power, or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other\nright, power or privilege hereunder.\n11. The parties hereby agree that this Agreement represents the entire agreement between the parties with respect to the subject matter hereof\nand supersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the handling of\nConfidential Information (including the Confidentiality Agreement by and among Endo Pharmaceuticals, Inc., Sisitsky and TPG, dated\nApril 25, 2016), whether written, oral, visual, audio or in any other medium whatsoever. This Agreement shall be governed by the laws of\nthe Commonwealth of Pennsylvania without reference to its conflict of laws rules. This Agreement may not be amended or in any manner\nmodified except by a written instrument signed by authorized representatives of both parties. If any provision of this Agreement is found to\nbe unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the\nlimited extent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein.\n12. This Agreement shall terminate and all obligations and rights hereunder shall expire upon the first anniversary of the first date on which\nSisitsky is no longer a member of the board of directors of Endo.\n13. This Agreement shall be binding on each party’s successors and assigns.\n14. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute\nthe same agreement. Signatures to this Agreement transmitted by facsimile, by electronic mail in “portable document format” (“.pdf”), or\nby any other electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as\nphysical delivery of the paper document bearing the original signature.\n4\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nENDO INTERNATIONAL PLC\nBy: /s/ Rajiv De Silva\nBy: /s/ Todd B. Sisitsky\nName: Rajiv De Silva\nTodd B. Sisitsky\nTitle: President and CEO\nTPG GLOBAL, LLC\nBy: /s/ Clive Bode\nName: Clive Bode\nTitle: Vice President\n[Signature Page to Director Confidentiality Agreement]
+5d18471dc0cb8c824fe86d5899aeb24b.pdf	effective_date jurisdiction party term	EX-10.29 9 dex1029.htm CONFIDENTIALITY, NON-INTERFERENCE AND INVENTION ASSIGNMENT\nAGREEMENT\nExhibit 10.29\nCONFIDENTIALITY, NON-INTERFERENCE, AND INVENTION ASSIGNMENT AGREEMENT\nAs a condition of my becoming employed by, or continuing employment with, Interactive Data Corporation, a Delaware corporation (the\n“Company”), and in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by the\nCompany, I agree to the following:\nSection 1. Confidential Information.\n(a) Company Group Information. I acknowledge that, during the course of my employment, I will have access to information\nabout the Company and its direct and indirect parents and subsidiaries (collectively, the “Company Group”) and that my employment with the\nCompany shall bring me into close contact with confidential and proprietary information of the Company Group. In recognition of the foregoing, I\nagree, at all times during the term of my employment with the Company and for the ten (10) year period following my termination of my\nemployment with the Company Group for any reason, to hold in confidence, and not to use, except for the benefit of the Company Group, or to\ndisclose to any person, firm, corporation, or other entity without written authorization of the Company, any Confidential Information that I obtain or\ncreate. I further agree not to make copies of such Confidential Information except as authorized by the Company. I understand that “Confidential\nInformation” means information that the Company Group has developed, acquired, created, compiled, discovered, or owned or will develop, acquire,\ncreate, compile, discover, or own, that has value in or to the business of the Company Group that is not generally known and that the Company\nwishes to maintain as confidential. I understand that Confidential Information includes, but is not limited to, any and all non-public information that\nrelates to the actual or anticipated business and/or products, research, or development of the Company, or to the Company’s technical data, trade\nsecrets, or know-how, including, but not limited to, research, product plans, or other information regarding the Company’s products or services and\nmarkets, customer lists, and customers (including, but not limited to, customers of the Company on whom I called or with whom I may become\nacquainted during the term of my employment), software, developments, inventions, processes, formulas, technology, designs, drawings,\nengineering, hardware configuration information, marketing, finances, and other business information disclosed by the Company either directly or\nindirectly in writing, orally, or by drawings or inspection of premises, parts, equipment, or other Company property. Notwithstanding the foregoing,\nConfidential Information shall not include (i) any of the foregoing items that have become publicly known through no unauthorized disclosure by me\nor others who were under confidentiality obligations as to the item or items involved or (ii) any information that I am required to disclose to, or by,\nany governmental or judicial authority; provided, however, that in such event I will give the Company prompt written notice thereof so that the\nCompany Group may seek an appropriate protective order and/or waive in writing compliance with the confidentiality provisions of this\nConfidentiality, Non-Interference, and Invention Assignment Agreement (the “Non-Interference Agreement”).\n(b) Former Employer Information. I represent that my performance of all of the terms of this Non-Interference Agreement as an\nemployee of the Company has not breached and will not breach any agreement to keep in confidence proprietary information,\nknowledge, or data acquired by me in confidence or trust prior or subsequent to the commencement of my employment with the Company, and I will\nnot disclose to any member of the Company Group, or induce any member of the Company Group to use, any developments, or confidential or\nproprietary information or material I may have obtained in connection with employment with any prior employer in violation of a confidentiality\nagreement, nondisclosure agreement, or similar agreement with such prior employer.\nSection 2. Developments.\n(a) Developments Retained and Licensed. I have attached hereto, as Schedule A, a list describing with particularity all\ndevelopments, original works of authorship, developments, improvements, and trade secrets that I can demonstrate were created or owned by me\nprior to the commencement of my employment (collectively referred to as “Prior Developments”), which belong solely to me or belong to me jointly\nwith another, that relate in any way to any of the actual or proposed businesses, products, or research and development of any member of the\nCompany Group, and that are not assigned to the Company hereunder, or if no such list is attached, I represent that there are no such Prior\nDevelopments. If, during any period during which I perform or performed services for the Company Group both before or after the date hereof (the\n“Assignment Period”), whether as an officer, employee, director, independent contractor, consultant, or agent, or in any other capacity, I incorporate\n(or have incorporated) into a Company Group product or process a Prior Development owned by me or in which I have an interest, I hereby grant the\nCompany, and the Company Group shall have, a non-exclusive, royalty-free, irrevocable, perpetual, transferable worldwide license (with the right to\nsublicense) to make, have made, copy, modify, make derivative works of, use, sell, and otherwise distribute such Prior Development as part of or in\nconnection with such product or process.\n(b) Assignment of Developments. I agree that I will, without additional compensation, promptly make full written disclosure to\nthe Company, and will hold in trust for the sole right and benefit of the Company all developments, original works of authorship, inventions,\nconcepts, know-how, improvements, trade secrets, and similar proprietary rights, whether or not patentable or registrable under copyright or similar\nlaws, which I may solely or jointly conceive or develop or reduce to practice, or have solely or jointly conceived or developed or reduced to practice,\nor have caused or may cause to be conceived or developed or reduced to practice, during the Assignment Period, whether or not during regular\nworking hours, provided they either (i) relate at the time of conception, development or reduction to practice to the business of any member of the\nCompany Group, or the actual or anticipated research or development of any member of the Company Group; (ii) result from or relate to any work\nperformed for any member of the Company Group; or (iii) are developed through the use of equipment, supplies, or facilities of any member of the\nCompany Group, or any Confidential Information, or in consultation with personnel of any member of the Company Group (collectively referred to\nas “Developments”). I further acknowledge that all Developments made by me (solely or jointly with others) within the scope of and during the\nAssignment Period are “works made for hire” (to the greatest extent permitted by applicable law) for which I am, in part, compensated by my salary,\nunless regulated otherwise by law, but that, in the event any such Development is deemed not to be a work made for hire, I hereby assign to the\nCompany, or its designee, all my right, title, and interest throughout the world in and to any such Development.\n(c) Maintenance of Records. I agree to keep and maintain adequate and current written records of all Developments made by me\n(solely or jointly with others) during the Assignment Period. The records may be in the form of notes, sketches, drawings, flow charts, electronic\ndata or recordings, and any other format. The records will be available to and remain the sole property of the Company Group at all times. I agree\nnot to remove such records from the Company’s place of business except as expressly permitted by Company Group policy, which may, from time to\ntime, be revised at the sole election of the Company Group for the purpose of furthering the business of the Company Group.\n(d) Intellectual Property Rights. I agree to assist the Company, or its designee, at the Company’s expense, in every way to secure\nthe rights of the Company Group in the Developments and any copyrights, patents, trademarks, service marks, database rights, domain names, mask\nwork rights, moral rights, and other intellectual property rights relating thereto in any and all countries, including the disclosure to the Company of\nall pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, assignments, recordations, and all other\ninstruments that the Company shall deem necessary in order to apply for, obtain, maintain, and transfer such rights and in order to assign and convey\nto the Company Group the sole and exclusive right, title, and interest in and to such Developments, and any intellectual property and other\nproprietary rights relating thereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such\ninstrument or papers shall continue after the termination of the Assignment Period until the expiration of the last such intellectual property right to\nexpire in any country of the world; provided, however, the Company shall reimburse me for my reasonable expenses incurred in connection with\ncarrying out the foregoing obligation. If the Company is unable because of my mental or physical incapacity or unavailability for any other reason to\nsecure my signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering\nDevelopments or original works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the Company and\nits duly authorized officers and agents as my agent and attorney in fact to act for and in my behalf and stead to execute and file any such applications\nor records and to do all other lawfully permitted acts to further the application for, prosecution, issuance, maintenance, and transfer of letters patent\nor registrations thereon with the same legal force and effect as if originally executed by me. I hereby waive and irrevocably quitclaim to the\nCompany any and all claims, of any nature whatsoever, that I now or hereafter have for past, present, or future infringement of any and all\nproprietary rights assigned to the Company.\nSection 3. Returning Company Group Documents.\nI agree that, at the time of termination of my employment with the Company for any reason, I will deliver to the Company (and will not\nkeep in my possession, recreate, or deliver to anyone else) any and all Confidential Information and all other documents, materials, information, and\nproperty developed by me pursuant to my employment or otherwise belonging to the Company. I agree further that any property situated on the\nCompany’s premises and owned by the Company (or any other member of the Company Group), including disks and other storage media, filing\ncabinets, and other work areas, is subject to inspection by personnel of any member of the Company Group at any time with or without notice.\nSection 4. Disclosure of Agreement.\nAs long as it remains in effect, I will disclose the existence of this Non-Interference Agreement to any prospective employer, partner, co-\nventurer, investor, or lender prior to entering into an employment, partnership, or other business relationship with such person or entity.\nSection 5. Restrictions on Interfering.\n(a) Non-Competition. During the period of my employment with the Company (the “Employment Period”) and the Post-\nTermination Restricted Period, I shall not, directly or indirectly, individually or on behalf of any person, company, enterprise, or entity, or as a sole\nproprietor, partner, stockholder, director, officer, principal, agent, or executive, or in any other capacity or relationship, engage in any Competitive\nActivities within any State of the United States of America and any other jurisdiction in which any member of the Company Group engages (or has\ncommitted plans to engage) in business during the Employment Period, or during the Post-Termination Restricted Period was engaged in business\n(or had committed plans to engage of which I have knowledge at the time of termination of my employment); provided, that my indirect ownership\n(i.e ., ownership through a fund that is not controlled by me or any of my affiliates) of not more than three percent (3%) of the outstanding shares of\nany publicly traded company shall not be deemed to breach of this Section 5(a).\n(b) Non-Interference. During the Employment Period and the Post-Termination Restricted Period, I shall not, directly or\nindirectly for my own account or for the account of any other individual or entity, engage in Interfering Activities.\n(c) Definitions. For purposes of this Non-Interference Agreement:\n(i) “Business Relation” shall mean any current or prospective client, customer, licensee, or other business relation of the\nCompany Group, or any such relation that was a client, customer, licensee, supplier, or other business relation within the six\n(6) month period prior to the expiration of the Employment Period, in each case, to whom I provided services, or with whom I\ntransacted business, or whose identity became known to me in connection with my relationship with or employment by the\nCompany.\n(ii) “Competitive Activities” shall mean any business activities in which any member of the Company Group is engaged (or\nhas committed plans to engage) during the Employment Period.\n(iii) “Interfering Activities” shall mean (A) encouraging, soliciting, or inducing, or in any manner attempting to encourage,\nsolicit, or induce, any individual or entity employed by, or providing consulting services to, any member of the Company Group\nto terminate such individual’s or entity’s employment or services (or in the case of a consultant, materially reducing such\nservices) with the Company Group;\n(B) hiring any individual who was employed by any member of the Company Group within the six (6) month period prior to the\ndate of such hiring; or (C) encouraging, soliciting, or inducing, or in any manner attempting to encourage, solicit, or induce, any\nBusiness Relation to cease doing business with or reduce the amount of business conducted with the Company Group, or in any\nway interfering with the relationship between any such Business Relation and the Company Group.\n(iv) “Post-Termination Restricted Period” shall mean the period commencing on the date of the termination of the\nEmployment Period for any reason and ending on the twelve (12) month anniversary of such date of termination.\n(d) Non-Disparagement. I agree that during the Employment Period, and at all times thereafter, I will not make any disparaging\nor defamatory comments regarding (i) any member of the Company Group or its respective current or former directors, officers, or employees, or\n(ii) my relationship with any member of the Company Group, or (iii) any conduct or events which precipitated any termination of my employment\nfrom any member of the Company Group. Similarly, the Company shall instruct its executive officers and directors to refrain from making any\ndisparaging or defamatory comments regarding (i) me in any respect, or (ii) my relationship with any member of the Company Group, or (iii) the\nconduct or events that precipitated my termination of employment from any member of the Company Group (it being understood that the foregoing\nshall not prevent any representative of the Company Group from verifying my employment to any potential subsequent employer). However, the\nobligations under this subparagraph (d) shall not apply to disclosures required by applicable law, regulation, or order of a court or governmental\nagency.\n(e) Consideration. I agree that as additional consideration for my compliance with the terms and conditions of this Non-\nInterference Agreement, upon the termination of employment for any reason other than by the Company for Cause (as defined in my Employment\nAgreement, dated November 4, 2010, with the Company (the “Employment Agreement”)), the Company shall pay me $200,000 (the “Non-\nInterference Consideration”), payable in substantially equal monthly installments during the Post-Termination Restricted Period. The Non-\nInterference Consideration shall be in addition to any severance benefits that I may receive upon a termination of my employment under the terms of\nmy Employment Agreement, and I acknowledge and agree that the payment of the Non-Interference Consideration shall be subject to my execution,\ndelivery to the Company, and non-revocation of the Release of Claims (as defined in the Employment Agreement) in accordance with the provisions\nof Section 8(h) of the Employment Agreement. I agree further that the payment of the Non-Interference Consideration shall, subject to delivery of\nwritten notice from the Company and an opportunity to address the Company’s Board of Directors within five (5) business days following receipt of\nsuch notice, immediately cease if I am in breach of any provision of this Non-Interference Agreement.\n(f) Other Restrictions. The covenants contained in this Section 5 are in addition to, and not in lieu of, any similar covenants to\nwhich Employee may be subject from time to time.\nSection 6. Reasonableness of Restrictions.\nI acknowledge and recognize the highly competitive nature of the Company’s business, that access to Confidential Information renders\nme special and unique within the Company’s industry, and that I will have the opportunity to develop substantial relationships with existing and\nprospective clients, accounts, customers, consultants, contractors, investors, and strategic partners of the Company Group during the course of and as\na result of my employment with the Company. In light of the foregoing, I recognize and acknowledge that the restrictions and limitations set forth in\nthis Non-Interference Agreement are reasonable and valid in geographical and temporal scope and in all other respects and are essential to protect\nthe value of the business and assets of the Company Group. I acknowledge further that the restrictions and limitations set forth in this Non-\nInterference Agreement will not materially interfere with my ability to earn a living following the termination of my employment with the Company\nand that my ability to earn a livelihood without violating such restrictions is a material condition to my employment with the Company.\nSection 7. Independence; Severability; Blue Pencil.\nEach of the rights enumerated in this Non-Interference Agreement shall be independent of the others and shall be in addition to and not\nin lieu of any other rights and remedies available to the Company Group at law or in equity. If any of the provisions of this Non-Interference\nAgreement or any part of any of them is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of\nthis Non-Interference Agreement, which shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are\nheld to be invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, I agree that the court making\nsuch determination shall have the power to reduce the duration, scope, and/or area of such provision to the maximum and/or broadest duration,\nscope, and/or area permissible by law, and in its reduced form said provision shall then be enforceable.\nSection 8. Injunctive Relief.\nI expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in this Non-Interference\nAgreement may result in substantial, continuing, and irreparable injury to the members of the Company Group. Therefore, I hereby agree that, in\naddition to any other remedy that may be available to the Company, any member of the Company Group shall be entitled to seek injunctive relief\n(but not on an ex parte basis), specific performance, or other equitable relief by a court of appropriate jurisdiction in the event of any breach or\nthreatened breach of the terms of this Non-Interference Agreement without the necessity of proving irreparable harm or injury as a result of such\nbreach or threatened breach. Notwithstanding any other provision to the contrary, I acknowledge and agree that the Post-Termination Restricted\nPeriod shall be tolled during any period of violation of any of the covenants in Section 5 hereof and during any other period required for litigation\nduring which the Company or any other member of the Company Group seeks to enforce such covenants against me if it is ultimately determined\nthat I was in breach of such covenants.\nSection 9. Cooperation.\nI agree that, following any termination of my employment, I will continue to provide reasonable cooperation to the Company and/or any\nother member of the Company Group and its or their respective counsel in connection with any investigation, administrative proceeding, or litigation\nrelating to any matter that occurred during my employment in which I was involved or of which I have knowledge. As a condition of such\ncooperation, the Company shall reimburse me for reasonable out-of-pocket expenses incurred at the request of the Company with respect to my\ncompliance with this paragraph, and I shall be entitled to indemnification in accordance with the terms of Section 5(b) of my employment agreement\nwith the Company. I also agree that, in the event that I am subpoenaed by any person or entity (including, but not limited to, any government agency)\nto give testimony or provide documents (in a deposition, court proceeding, or otherwise) that in any way relates to my employment by the Company\nand/or any other member of the Company Group, I will give prompt notice of such request to the Company and will make no disclosure until the\nCompany and/or the other member of the Company Group has had a reasonable opportunity to contest the right of the requesting person or entity to\nsuch disclosure.\nSection 10. General Provisions.\n(a) Governing Law and Jurisdiction. EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE VALIDITY,\nINTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS NON-INTERFERENCE AGREEMENT IS GOVERNED BY AND IS\nTO BE CONSTRUED UNDER THE LAWS OF THE STATE OF MASSACHUSETTS APPLICABLE TO AGREEMENTS MADE AND TO BE\nPERFORMED IN THAT STATE, WITHOUT REGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR\nRELATING TO THIS NON-INTERFERENCE AGREEMENT OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN\nANY UNITED STATES DISTRICT COURT SITTING IN MASSACHUSETTS, TO THE EXTENT FEDERAL JURISDICTION EXISTS, AND\nIN ANY COURT SITTING IN MASSACHUSETTS, BUT ONLY IN THE EVENT FEDERAL JURISDICTION DOES NOT EXIST, AND ANY\nAPPLICABLE APPELLATE COURTS. BY EXECUTION OF THIS NON -INTERFERENCE AGREEMENT, THE PARTIES HERETO, AND\nTHEIR RESPECTIVE AFFILIATES, CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, AND WAIVE ANY RIGHT TO\nCHALLENGE JURISDICTION OR VENUE IN SUCH COURT WITH REGARD TO ANY SUIT, ACTION, OR PROCEEDING UNDER OR IN\nCONNECTION WITH THIS NON-INTERFERENCE AGREEMENT. EACH PARTY TO THIS NON -INTERFERENCE AGREEMENT ALSO\nHEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT, ACTION, OR PROCEEDING UNDER OR IN\nCONNECTION WITH THIS NON-INTERFERENCE AGREEMENT.\n(b) Entire Agreement. This Non-Interference Agreement sets forth the entire agreement and understanding between the Company\nand me relating to the subject matter herein and merges all prior discussions between us. No modification or amendment to this Non-Interference\nAgreement, nor any waiver of any rights under this Non-Interference Agreement, will be effective unless in writing signed by the party to be\ncharged. Any subsequent change or changes in my duties, obligations, rights, or compensation will not affect the validity or scope of this Non-\nInterference Agreement.\n(c) No Right of Continued Employment. I acknowledge and agree that nothing contained herein shall be construed as granting me\nany right to continued employment by the Company, and the right of the Company to terminate my employment at any time and for any reason, with\nor without cause, is specifically reserved.\n(d) Successors and Assigns. This Non-Interference Agreement will be binding upon my heirs, executors, administrators, and\nother legal representatives and will be for the benefit of the Company, its successors, and its assigns. I expressly acknowledge and agree that this\nNon-Interference Agreement may be assigned by the Company without my consent to any other member of the Company Group as well as any\npurchaser of all or substantially all of the assets or stock of the Company, whether by purchase, merger, or other similar corporate transaction,\nprovided that the license granted pursuant to Section 2(a) may be assigned to any third party by the Company without my consent.\n(e) Survival. The provisions of this Non-Interference Agreement shall survive the termination of my employment with the\nCompany and/or the assignment of this Non-Interference Agreement by the Company to any successor in interest or other assignee.\n*\n*\n*\nI, Raymond L. D’Arcy, have executed this Confidentiality, Non-Interference, and Invention Assignment Agreement on the respective\ndate set forth below:\nDate: /s/ Raymond L. D’Arcy\n11/4/10\nRaymond L. D’Arcy\nAcknowledged and agreed as of\nthis 4th day of November 2010:\nINTERACTIVE DATA CORPORATION\n/s/ Mason Slaine\nBy: Mason Slaine\nTitle: President and CEO\nSCHEDULE A\nLIST OF PRIOR DEVELOPMENTS\nAND ORIGINAL WORKS OF AUTHORSHIP\nEXCLUDED FROM SECTION 2\nTitle\nDate\nIdentifying Number or\nBrief Description\nX No Developments or improvements\nAdditional Sheets Attached\nSignature of Employee:\n/s/ Raymond L. D’Arcy\nPrint Name of Employee: Raymond L. D’Arcy\nDate: November 4, 2010	EX-10.29 9 dex1029.htm CONFIDENTIALITY, NON-INTERFERENCE AND INVENTION ASSIGNMENT\nAGREEMENT\nExhibit 10.29\nCONFIDENTIALITY, NON-INTERFERENCE, AND INVENTION ASSIGNMENT AGREEMENT\nAs a condition of my becoming employed by, or continuing employment with, Interactive Data Corporation, a Delaware corporation (the\n“Company”), and in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by the\nCompany, I agree to the following:\nSection 1. Confidential Information.\n(a) Company Group Information. I acknowledge that, during the course of my employment, I will have access to information\nabout the Company and its direct and indirect parents and subsidiaries (collectively, the “Company Group”) and that my employment with the\nCompany shall bring me into close contact with confidential and proprietary information of the Company Group. In recognition of the foregoing, I\nagree, at all times during the term of my employment with the Company and for the ten (10) year period following my termination of my\nemployment with the Company Group for any reason, to hold in confidence, and not to use, except for the benefit of the Company Group, or to\ndisclose to any person, firm, corporation, or other entity without written authorization of the Company, any Confidential Information that I obtain or\ncreate. I further agree not to make copies of such Confidential Information except as authorized by the Company. I understand that “Confidential\nInformation” means information that the Company Group has developed, acquired, created, compiled, discovered, or owned or will develop, acquire,\ncreate, compile, discover, or own, that has value in or to the business of the Company Group that is not generally known and that the Company\nwishes to maintain as confidential. I understand that Confidential Information includes, but is not limited to, any and all non-public information that\nrelates to the actual or anticipated business and/or products, research, or development of the Company, or to the Company’s technical data, trade\nsecrets, or know-how, including, but not limited to, research, product plans, or other information regarding the Company’s products or services and\nmarkets, customer lists, and customers (including, but not limited to, customers of the Company on whom I called or with whom I may become\nacquainted during the term of my employment), software, developments, inventions, processes, formulas, technology, designs, drawings,\nengineering, hardware configuration information, marketing, finances, and other business information disclosed by the Company either directly or\nindirectly in writing, orally, or by drawings or inspection of premises, parts, equipment, or other Company property. Notwithstanding the foregoing,\nConfidential Information shall not include (i) any of the foregoing items that have become publicly known through no unauthorized disclosure by me\nor others who were under confidentiality obligations as to the item or items involved or (ii) any information that I am required to disclose to, or by,\nany governmental or judicial authority; provided, however, that in such event I will give the Company prompt written notice thereof so that the\nCompany Group may seek an appropriate protective order and/or waive in writing compliance with the confidentiality provisions of this\nConfidentiality, Non-Interference, and Invention Assignment Agreement (the “Non-Interference Agreement”).\n(b) Former Employer Information. I represent that my performance of all of the terms of this Non-Interference Agreement as an\nemployee of the Company has not breached and will not breach any agreement to keep in confidence proprietary information,\nknowledge, or data acquired by me in confidence or trust prior or subsequent to the commencement of my employment with the Company, and I will\nnot disclose to any member of the Company Group, or induce any member of the Company Group to use, any developments, or confidential or\nproprietary information or material I may have obtained in connection with employment with any prior employer in violation of a confidentiality\nagreement, nondisclosure agreement, or similar agreement with such prior employer.\nSection 2. Developments.\n \n(a) Developments Retained and Licensed. I have attached hereto, as Schedule A, a list describing with particularity all\ndevelopments, original works of authorship, developments, improvements, and trade secrets that I can demonstrate were created or owned by me\nprior to the commencement of my employment (collectively referred to as “Prior Developments”), which belong solely to me or belong to me jointly\nwith another, that relate in any way to any of the actual or proposed businesses, products, or research and development of any member of the\nCompany Group, and that are not assigned to the Company hereunder, or if no such list is attached, I represent that there are no such Prior\nDevelopments. If, during any period during which I perform or performed services for the Company Group both before or after the date hereof (the\n“Assignment Period”), whether as an officer, employee, director, independent contractor, consultant, or agent, or in any other capacity, I incorporate\n(or have incorporated) into a Company Group product or process a Prior Development owned by me or in which I have an interest, I hereby grant the\nCompany, and the Company Group shall have, a non-exclusive, royalty-free, irrevocable, perpetual, transferable worldwide license (with the right to\nsublicense) to make, have made, copy, modify, make derivative works of, use, sell, and otherwise distribute such Prior Development as part of or in\nconnection with such product or process.\n \n(b) Assignment of Developments. I agree that I will, without additional compensation, promptly make full written disclosure to\nthe Company, and will hold in trust for the sole right and benefit of the Company all developments, original works of authorship, inventions,\nconcepts, know-how, improvements, trade secrets, and similar proprietary rights, whether or not patentable or registrable under copyright or similar\nlaws, which I may solely or jointly conceive or develop or reduce to practice, or have solely or jointly conceived or developed or reduced to practice,\nor have caused or may cause to be conceived or developed or reduced to practice, during the Assignment Period, whether or not during regular\nworking hours, provided they either (i) relate at the time of conception, development or reduction to practice to the business of any member of the\nCompany Group, or the actual or anticipated research or development of any member of the Company Group; (ii) result from or relate to any work\nperformed for any member of the Company Group; or (iii) are developed through the use of equipment, supplies, or facilities of any member of the\nCompany Group, or any Confidential Information, or in consultation with personnel of any member of the Company Group (collectively referred to\nas “Developments”). I further acknowledge that all Developments made by me (solely or jointly with others) within the scope of and during the\nAssignment Period are “works made for hire” (to the greatest extent permitted by applicable law) for which I am, in part, compensated by my salary,\nunless regulated otherwise by law, but that, in the event any such Development is deemed not to be a work made for hire, I hereby assign to the\nCompany, or its designee, all my right, title, and interest throughout the world in and to any such Development.\n(c) Maintenance of Records. I agree to keep and maintain adequate and current written records of all Developments made by me\n(solely or jointly with others) during the Assignment Period. The records may be in the form of notes, sketches, drawings, flow charts, electronic\ndata or recordings, and any other format. The records will be available to and remain the sole property of the Company Group at all times. I agree\nnot to remove such records from the Company’s place of business except as expressly permitted by Company Group policy, which may, from time to\ntime, be revised at the sole election of the Company Group for the purpose of furthering the business of the Company Group.\n(d) Intellectual Property Rights. I agree to assist the Company, or its designee, at the Company’s expense, in every way to secure\nthe rights of the Company Group in the Developments and any copyrights, patents, trademarks, service marks, database rights, domain names, mask\nwork rights, moral rights, and other intellectual property rights relating thereto in any and all countries, including the disclosure to the Company of\nall pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, assignments, recordations, and all other\ninstruments that the Company shall deem necessary in order to apply for, obtain, maintain, and transfer such rights and in order to assign and convey\nto the Company Group the sole and exclusive right, title, and interest in and to such Developments, and any intellectual property and other\nproprietary rights relating thereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such\ninstrument or papers shall continue after the termination of the Assignment Period until the expiration of the last such intellectual property right to\nexpire in any country of the world; provided, however, the Company shall reimburse me for my reasonable expenses incurred in connection with\ncarrying out the foregoing obligation. If the Company is unable because of my mental or physical incapacity or unavailability for any other reason to\nsecure my signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering\nDevelopments or original works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the Company and\nits duly authorized officers and agents as my agent and attorney in fact to act for and in my behalf and stead to execute and file any such applications\nor records and to do all other lawfully permitted acts to further the application for, prosecution, issuance, maintenance, and transfer of letters patent\nor registrations thereon with the same legal force and effect as if originally executed by me. I hereby waive and irrevocably quitclaim to the\nCompany any and all claims, of any nature whatsoever, that I now or hereafter have for past, present, or future infringement of any and all\nproprietary rights assigned to the Company.\nSection 3. Returning Company Group Documents.\nI agree that, at the time of termination of my employment with the Company for any reason, I will deliver to the Company (and will not\nkeep in my possession, recreate, or deliver to anyone else) any and all Confidential Information and all other documents, materials, information, and\nproperty developed by me pursuant to my employment or otherwise belonging to the Company. I agree further that any property situated on the\nCompany’s premises and owned by the Company (or any other member of the Company Group), including disks and other storage media, filing\ncabinets, and other work areas, is subject to inspection by personnel of any member of the Company Group at any time with or without notice.\nSection 4. Disclosure of Agreement.\nAs long as it remains in effect, I will disclose the existence of this Non-Interference Agreement to any prospective employer, partner, co-\nventurer, investor, or lender prior to entering into an employment, partnership, or other business relationship with such person or entity.\nSection 5. Restrictions on Interfering.\n(a) Non-Competition. During the period of my employment with the Company (the “Employment Period”) and the Post-\nTermination Restricted Period, I shall not, directly or indirectly, individually or on behalf of any person, company, enterprise, or entity, or as a sole\nproprietor, partner, stockholder, director, officer, principal, agent, or executive, or in any other capacity or relationship, engage in any Competitive\nActivities within any State of the United States of America and any other jurisdiction in which any member of the Company Group engages (or has\ncommitted plans to engage) in business during the Employment Period, or during the Post-Termination Restricted Period was engaged in business\n(or had committed plans to engage of which I have knowledge at the time of termination of my employment); provided, that my indirect ownership\n(i.e., ownership through a fund that is not controlled by me or any of my affiliates) of not more than three percent (3%) of the outstanding shares of\nany publicly traded company shall not be deemed to breach of this Section 5(a).\n \n(b) Non-Interference. During the Employment Period and the Post-Termination Restricted Period, I shall not, directly or\nindirectly for my own account or for the account of any other individual or entity, engage in Interfering Activities.\n(c) Definitions. For purposes of this Non-Interference Agreement:\n(i) “Business Relation” shall mean any current or prospective client, customer, licensee, or other business relation of the\nCompany Group, or any such relation that was a client, customer, licensee, supplier, or other business relation within the six\n(6) month period prior to the expiration of the Employment Period, in each case, to whom I provided services, or with whom I\ntransacted business, or whose identity became known to me in connection with my relationship with or employment by the\nCompany.\n(ii) “Competitive Activities” shall mean any business activities in which any member of the Company Group is engaged (or\nhas committed plans to engage) during the Employment Period.\n(iii) “Interfering Activities” shall mean (A) encouraging, soliciting, or inducing, or in any manner attempting to encourage,\nsolicit, or induce, any individual or entity employed by, or providing consulting services to, any member of the Company Group\nto terminate such individual’s or entity’s employment or services (or in the case of a consultant, materially reducing such\nservices) with the Company Group;\n(B) hiring any individual who was employed by any member of the Company Group within the six (6) month period prior to the\ndate of such hiring; or (C) encouraging, soliciting, or inducing, or in any manner attempting to encourage, solicit, or induce, any\nBusiness Relation to cease doing business with or reduce the amount of business conducted with the Company Group, or in any\nway interfering with the relationship between any such Business Relation and the Company Group.\n(iv) “Post-Termination Restricted Period” shall mean the period commencing on the date of the termination of the\nEmployment Period for any reason and ending on the twelve (12) month anniversary of such date of termination.\n(d) Non-Disparagement. I agree that during the Employment Period, and at all times thereafter, I will not make any disparaging\nor defamatory comments regarding (i) any member of the Company Group or its respective current or former directors, officers, or employees, or\n(ii) my relationship with any member of the Company Group, or (iii) any conduct or events which precipitated any termination of my employment\nfrom any member of the Company Group. Similarly, the Company shall instruct its executive officers and directors to refrain from making any\ndisparaging or defamatory comments regarding (i) me in any respect, or (ii) my relationship with any member of the Company Group, or (iii) the\nconduct or events that precipitated my termination of employment from any member of the Company Group (it being understood that the foregoing\nshall not prevent any representative of the Company Group from verifying my employment to any potential subsequent employer). However, the\nobligations under this subparagraph (d) shall not apply to disclosures required by applicable law, regulation, or order of a court or governmental\nagency.\n(e) Consideration. I agree that as additional consideration for my compliance with the terms and conditions of this Non-\nInterference Agreement, upon the termination of employment for any reason other than by the Company for Cause (as defined in my Employment\nAgreement, dated November 4, 2010, with the Company (the “Employment Agreement”)), the Company shall pay me $200,000 (the “Non-\nInterference Consideration”), payable in substantially equal monthly installments during the Post-Termination Restricted Period. The Non-\nInterference Consideration shall be in addition to any severance benefits that I may receive upon a termination of my employment under the terms of\nmy Employment Agreement, and I acknowledge and agree that the payment of the Non-Interference Consideration shall be subject to my execution,\ndelivery to the Company, and non-revocation of the Release of Claims (as defined in the Employment Agreement) in accordance with the provisions\nof Section 8(h) of the Employment Agreement. I agree further that the payment of the Non-Interference Consideration shall, subject to delivery of\nwritten notice from the Company and an opportunity to address the Company’s Board of Directors within five (5) business days following receipt of\nsuch notice, immediately cease if I am in breach of any provision of this Non-Interference Agreement.\n(f) Other Restrictions. The covenants contained in this Section 5 are in addition to, and not in lieu of, any similar covenants to\nwhich Employee may be subject from time to time.\nSection 6. Reasonableness of Restrictions.\nI acknowledge and recognize the highly competitive nature of the Company’s business, that access to Confidential Information renders\nme special and unique within the Company’s industry, and that I will have the opportunity to develop substantial relationships with existing and\nprospective clients, accounts, customers, consultants, contractors, investors, and strategic partners of the Company Group during the course of and as\na result of my employment with the Company. In light of the foregoing, I recognize and acknowledge that the restrictions and limitations set forth in\nthis Non-Interference Agreement are reasonable and valid in geographical and temporal scope and in all other respects and are essential to protect\nthe value of the business and assets of the Company Group. I acknowledge further that the restrictions and limitations set forth in this Non-\nInterference Agreement will not materially interfere with my ability to earn a living following the termination of my employment with the Company\nand that my ability to earn a livelihood without violating such restrictions is a material condition to my employment with the Company.\nSection 7. Independence; Severability; Blue Pencil.\nEach of the rights enumerated in this Non-Interference Agreement shall be independent of the others and shall be in addition to and not\nin lieu of any other rights and remedies available to the Company Group at law or in equity. If any of the provisions of this Non-Interference\nAgreement or any part of any of them is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of\nthis Non-Interference Agreement, which shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are\nheld to be invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, I agree that the court making\nsuch determination shall have the power to reduce the duration, scope, and/or area of such provision to the maximum and/or broadest duration,\nscope, and/or area permissible by law, and in its reduced form said provision shall then be enforceable.\nSection 8. Injunctive Relief.\nI expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in this Non-Interference\nAgreement may result in substantial, continuing, and irreparable injury to the members of the Company Group. Therefore, I hereby agree that, in\naddition to any other remedy that may be available to the Company, any member of the Company Group shall be entitled to seek injunctive relief\n(but not on an ex parte basis), specific performance, or other equitable relief by a court of appropriate jurisdiction in the event of any breach or\nthreatened breach of the terms of this Non-Interference Agreement without the necessity of proving irreparable harm or injury as a result of such\nbreach or threatened breach. Notwithstanding any other provision to the contrary, I acknowledge and agree that the Post-Termination Restricted\nPeriod shall be tolled during any period of violation of any of the covenants in Section 5 hereof and during any other period required for litigation\nduring which the Company or any other member of the Company Group seeks to enforce such covenants against me if it is ultimately determined\nthat I was in breach of such covenants.\nSection 9. Cooperation.\nI agree that, following any termination of my employment, I will continue to provide reasonable cooperation to the Company and/or any\nother member of the Company Group and its or their respective counsel in connection with any investigation, administrative proceeding, or litigation\nrelating to any matter that occurred during my employment in which I was involved or of which I have knowledge. As a condition of such\ncooperation, the Company shall reimburse me for reasonable out-of-pocket expenses incurred at the request of the Company with respect to my\ncompliance with this paragraph, and I shall be entitled to indemnification in accordance with the terms of Section 5(b) of my employment agreement\nwith the Company. I also agree that, in the event that I am subpoenaed by any person or entity (including, but not limited to, any government agency)\nto give testimony or provide documents (in a deposition, court proceeding, or otherwise) that in any way relates to my employment by the Company\nand/or any other member of the Company Group, I will give prompt notice of such request to the Company and will make no disclosure until the\nCompany and/or the other member of the Company Group has had a reasonable opportunity to contest the right of the requesting person or entity to\nsuch disclosure.\nSection 10. General Provisions.\n(a) Governing Law and Jurisdiction. EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE VALIDITY,\nINTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS NON-INTERFERENCE AGREEMENT IS GOVERNED BY AND IS\nTO BE CONSTRUED UNDER THE LAWS OF THE STATE OF MASSACHUSETTS APPLICABLE TO AGREEMENTS MADE AND TO BE\nPERFORMED IN THAT STATE, WITHOUT REGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR\nRELATING TO THIS NON-INTERFERENCE AGREEMENT OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN\nANY UNITED STATES DISTRICT COURT SITTING IN MASSACHUSETTS, TO THE EXTENT FEDERAL JURISDICTION EXISTS, AND\nIN ANY COURT SITTING IN MASSACHUSETTS, BUT ONLY IN THE EVENT FEDERAL JURISDICTION DOES NOT EXIST, AND ANY\nAPPLICABLE APPELLATE COURTS. BY EXECUTION OF THIS NON-INTERFERENCE AGREEMENT, THE PARTIES HERETO, AND\nTHEIR RESPECTIVE AFFILIATES, CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, AND WAIVE ANY RIGHT TO\nCHALLENGE JURISDICTION OR VENUE IN SUCH COURT WITH REGARD TO ANY SUIT, ACTION, OR PROCEEDING UNDER OR IN\nCONNECTION WITH THIS NON-INTERFERENCE AGREEMENT. EACH PARTY TO THIS NON-INTERFERENCE AGREEMENT ALSO\nHEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT, ACTION, OR PROCEEDING UNDER OR IN\nCONNECTION WITH THIS NON-INTERFERENCE AGREEMENT.\n(b) Entire Agreement. This Non-Interference Agreement sets forth the entire agreement and understanding between the Company\nand me relating to the subject matter herein and merges all prior discussions between us. No modification or amendment to this Non-Interference\nAgreement, nor any waiver of any rights under this Non-Interference Agreement, will be effective unless in writing signed by the party to be\ncharged. Any subsequent change or changes in my duties, obligations, rights, or compensation will not affect the validity or scope of this Non-\nInterference Agreement.\n(c) No Right of Continued Employment. I acknowledge and agree that nothing contained herein shall be construed as granting me\nany right to continued employment by the Company, and the right of the Company to terminate my employment at any time and for any reason, with\nor without cause, is specifically reserved.\n(d) Successors and Assigns. This Non-Interference Agreement will be binding upon my heirs, executors, administrators, and\nother legal representatives and will be for the benefit of the Company, its successors, and its assigns. I expressly acknowledge and agree that this\nNon-Interference Agreement may be assigned by the Company without my consent to any other member of the Company Group as well as any\npurchaser of all or substantially all of the assets or stock of the Company, whether by purchase, merger, or other similar corporate transaction,\nprovided that the license granted pursuant to Section 2(a) may be assigned to any third party by the Company without my consent.\n(e) Survival. The provisions of this Non-Interference Agreement shall survive the termination of my employment with the\nCompany and/or the assignment of this Non-Interference Agreement by the Company to any successor in interest or other assignee.\n* * *\nI, Raymond L. D’ Arcy, have executed this Confidentiality, Non-Interference, and Invention Assignment Agreement on the respective\ndate set forth below:\nDate: /s/ Raymond L. D’Arcy 11/4/10\nRaymond L. D’ Arcy\nAcknowledged and agreed as of\nthis 4th day of November 2010:\nINTERACTIVE DATA CORPORATION\n/s/ Mason Slaine\nBy: Mason Slaine\nTitle: President and CEO\nSCHEDULE A\nLIST OF PRIOR DEVELOPMENTS\nAND ORIGINAL WORKS OF AUTHORSHIP\nEXCLUDED FROM SECTION 2\nIdentifying Number or\nTitle Date Brief Description\nX No Developments or improvements\nAdditional Sheets Attached\nSignature of Employee: /s/ Raymond L. D’Arcy\nPrint Name of Employee: Raymond L. D’ Arcy\nDate: November 4, 2010	EX-10.29 9 ex1029.htm CONFIDENTIALITY NON-INTERFERENCE AND INVENTION ASSIGNMENT\nAGREEMENT\nExhibit 10.29\nCONFIDENTIALITY, NON-INTERFERENCE, AND INVENTION ASSIGNMENT AGREEMENT\nAs a condition of my becoming employed by, or continuing employment with, Interactive Data Corporation, a Delaware corporation (the\n"Company."), and in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by the\nCompany, I agree to the following:\nSection 1. Confidential Information.\n(a) Company. Group Information. I acknowledge that, during the course of my employment, I will have access to information\nabout the Company and its direct and indirect parents and subsidiaries (collectively, the "Company. Group") and that my employment with the\nCompany shall bring me into close contact with confidential and proprietary information of the Company Group. In recognition of the foregoing, I\nagree, at all times during the term of my employment with the Company and for the ten (10) year period following my termination of my\nemployment with the Company Group for any reason, to hold in confidence, and not to use, except for the benefit of the Company Group, or to\ndisclose to any person, firm, corporation, or other entity without written authorization of the Company, any Confidential Information that I obtain or\ncreate. I further agree not to make copies of such Confidential Information except as authorized by the Company. I understand that "Confidential\nInformation" means information that the Company Group has developed, acquired, created, compiled, discovered, or owned or will develop, acquire,\ncreate, compile, discover, or own, that has value in or to the business of the Company Group that is not generally known and that the Company\nwishes to maintain as confidential I understand that Confidential Information includes, but is not limited to, any and all non-public information\nthat\nrelates to the actual or anticipated business and/or products, research, or development of the Company, or to the Company's technical data, trade\nsecrets, or know-how, including, but not limited to, research, product plans, or other information regarding the Company's products or services and\nmarkets, customer lists, and customers (including, but not limited to, customers of the Company on whom I called or with whom I may become\nacquainted during the term of my employment), software, developments, inventions, processes, formulas, technology, designs, drawings,\nengineering, hardware configuration information, marketing, finances, and other business information disclosed by the Company either directly or\nindirectly in writing, orally, or by drawings or inspection of premises, parts, equipment, or other Company property. Notwithstanding the foregoing,\nConfidential Information shall not include (i) any of the foregoing items that have become publicly known through no unauthorized disclosure by me\nor others who were under confidentiality obligations as to the item or items involved or (ii) any information that I am required to disclose to, or by,\nany governmental or judicial authority; provided, however, that in such event I will give the Company prompt written notice thereof so that the\nCompany Group may seek an appropriate protective order and/or waive in writing compliance with the confidentiality provisions of this\nConfidentiality, Non-Interference, and Invention Assignment Agreement (the "Non-Interference Agreement").\n(b) Former Employer Information. I represent that my performance of all of the terms of this Non-Interference Agreement as an\nemployee of the Company has not breached and will not breach any agreement to keep in confidence proprietary information,\nknowledge, or data acquired by me in confidence or trust prior or subsequent to the commencement of my employment with the Company, and I will\nnot disclose to any member of the Company Group, or induce any member of the Company Group to use, any developments, or confidential or\nproprietary information or material I may have obtained in connection with employment with any prior employer in violation of a confidentiality\nagreement, nondisclosure agreement, or similar agreement with such prior employer.\nSection 2. Developments.\n(a) Developments Retained and Licensed. I have attached hereto, as Schedule A, a list describing with particularity all\ndevelopments, original works of authorship, developments, improvements, and trade secrets that I can demonstrate were created or owned by me\nprior to the commencement of my employment (collectively referred to as "Prior Developments"), which belong solely to me or belong to me jointly\nwith another, that relate in any way to any of the actual or proposed businesses, products, or research and development of any member of the\nCompany Group, and that are not assigned to the Company hereunder, or if no such list is attached, I represent that there are no such Prior\nDevelopments. If, during any period during which I perform or performed services for the Company Group both before or after the date hereof (the\n"Assignment Period"), whether as an officer, employee, director, independent contractor, consultant, or agent, or in any other capacity, I incorporate\n(or have incorporated) into a Company Group product or process a Prior Development owned by me or in which I have an interest, I hereby grant the\nCompany, and the Company Group shall have, a non-exclusive, royalty-free, irrevocable, perpetual, transferable worldwide license (with the right\nto\nsublicense) to make, have made, copy, modify, make derivative works of, use, sell, and otherwise distribute such Prior Development as part of or in\nconnection with such product or process.\n(b) Assignment of Developments. I agree that I will, without additional compensation, promptly make full written disclosure to\nthe Company, and will hold in trust for the sole right and benefit of the Company all developments, original works of authorship, inventions,\nconcepts, know-how, improvements, trade secrets, and similar proprietary rights, whether or not patentable or registrable under copyright or similar\nlaws, which I may solely or jointly conceive or develop or reduce to practice, or have solely or jointly conceived or developed or reduced to practice,\nor have caused or may cause to be conceived or developed or reduced to practice, during the Assignment Period, whether or not during regular\nworking hours, provided they either (i) relate at the time of conception, development or reduction to practice to the business of any member of the\nCompany Group, or the actual or anticipated research or development of any member of the Company Group; (ii) result from or relate to any work\nperformed for any member of the Company Group; or (iii) are developed through the use of equipment, supplies, or facilities of any member of the\nCompany Group, or any Confidential Information, or in consultation with personnel of any member of the Company Group (collectively referred to\nas "Developments"). I further acknowledge that all Developments made by me (solely or jointly with others) within the scope of and during the\nAssignment Period are "works made for hire" (to the greatest extent permitted by applicable law) for which I am, in part, compensated by my salary,\nunless regulated otherwise by law, but that, in the event any such Development is deemed not to be a work made for hire, I hereby assign to the\nCompany, or its designee, all my right, title, and interest throughout the world in and to any such Development.\n(c) Maintenance of Records. I agree to keep and maintain adequate and current written records of all Developments made by me\n(solely or jointly with others) during the Assignment Period The records may be in the form of notes, sketches, drawings, flow charts, electronic\ndata or recordings, and any other format. The records will be available to and remain the sole property of the Company Group at all times. I agree\nnot to remove such records from the Company's place of business except as expressly permitted by Company Group policy, which may, from time to\ntime, be revised at the sole election of the Company Group for the purpose of furthering the business of the Company Group.\n(d) Intellectual Property Rights. I agree to assist the Company, or its designee, at the Company's expense, in every way to secure\nthe rights of the Company Group in the Developments and any copyrights, patents, trademarks, service marks, database rights, domain names, mask\nwork rights, moral rights, and other intellectual property rights relating thereto in any and all countries, including the disclosure to the Company\nof\nall pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, assignments, recordations, and all other\ninstruments that the Company shall deem necessary in order to apply for, obtain, maintain, and transfer such rights and in order to assign and convey\nto the Company Group the sole and exclusive right, title, and interest in and to such Developments, and any intellectual property and other\nproprietary rights relating thereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such\ninstrument or papers shall continue after the termination of the Assignment Period until the expiration of the last such intellectual property right\nto\nexpire in any country of the world; provided, however, the Company shall reimburse me for my reasonable expenses incurred in connection with\ncarrying out the foregoing obligation. If the Company is unable because of my mental or physical incapacity or unavailability for any other reason to\nsecure my signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering\nDevelopments or original works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the Company\nand\nits duly authorized officers and agents as my agent and attorney in fact to act for and in my behalf and stead to execute and file any such applications\nor records and to do all other lawfully permitted acts to further the application for, prosecution, issuance, maintenance, and transfer of letters patent\nor\nregistrations thereon with the same legal force and effect as if originally executed by me. I hereby waive and irrevocably quitclaim to the\nCompany any and all claims, of any nature whatsoever, that I now or hereafter have for past, present, or future infringement of any and all\nproprietary rights assigned to the Company.\nSection 3. Returning Company Group Documents.\nI agree that, at the time of termination of my employment with the Company for any reason, I will deliver to the Company (and will not\nkeep in my possession, recreate, or deliver to anyone else) any and all Confidential Information and all other documents, materials, information, and\nproperty developed by me pursuant to my employment or otherwise belonging to the Company. I agree further that any property situated on the\nCompany's premises and owned by the Company (or any other member of the Company Group), including disks and other storage media, filing\ncabinets, and other work areas, is subject to inspection by personnel of any member of the Company Group at any time with or without notice.\nSection 4. Disclosure of Agreement.\nAs long as it remains in effect, I will disclose the existence of this Non-Interference Agreement to any prospective employer, partner, co-\nventurer, investor, or lender prior to entering into an employment, partnership, or other business relationship with such person or entity.\nSection 5. Restrictions on Interfering.\n(a) Non-Competition. During the period of my employment with the Company (the "Employment Period") and the Post-\nTermination Restricted Period, I shall not, directly or indirectly, individually or on behalf of any person, company, enterprise, or entity, or as a\nsole\nproprietor, partner, stockholder, director, officer, principal, agent, or executive, or in any other capacity or relationship, engage in any Competitive\nActivities within any State of the United States of America and any other jurisdiction in which any member of the Company Group engages (or has\ncommitted plans to engage) in business during the Employment Period, or during the Post-Termination Restricted Period was engaged in business\n(or had committed plans to engage of which I have knowledge at the time of termination of my employment); provided, that my indirect ownership\n(i.e., ownership through a fund that is not controlled by me or any of my affiliates) of not more than three percent (3%) of the outstanding shares\nof\nany publicly traded company shall not be deemed to breach of this Section 5(a).\n(b) Non-Interference. During the Employment Period and the Post-Termination Restricted Period, I shall not, directly or\nindirectly for my own account or for the account of any other individual or entity, engage in Interfering Activities.\n(c) Definitions. For purposes of this Non-Interference Agreement:\n(i) "Business Relation" shall mean any current or prospective client, customer, licensee, or other business relation of the\nCompany Group, or any such relation that was a client, customer, licensee, supplier, or other business relation within the six\n(6) month period prior to the expiration of the Employment Period, in each case, to whom I provided services, or with whom I\ntransacted business, or whose identity became known to me in connection with my relationship with or employment by the\nCompany.\n(ii) "Competitive Activities" shall mean any business activities in which any member of the Company Group is engaged (or\nhas committed plans to engage) during the Employment Period.\n(iii) "Interfering Activities" shall mean (A) encouraging, soliciting, or inducing, or in any manner attempting to encourage,\nsolicit, or induce, any individual or entity employed by, or providing consulting services to, any member of the Company Group\nto terminate such individual's or entity's employment or services (or in the case of a consultant, materially reducing such\nservices) with the Company Group;\n(B) hiring any individual who was employed by any member of the Company Group within the six (6) month period prior to the\ndate of such hiring; or (C) encouraging, soliciting, or inducing, or in any manner attempting to encourage, solicit, or induce, any\nBusiness Relation to cease doing business with or reduce the amount of business conducted with the Company Group, or in any\nway interfering with the relationship between any such Business Relation and the Company Group.\n(iv) "Post-Termination Restricted Period" shall mean the period commencing on the date of the termination of the\nEmployment Period for any reason and ending on the twelve (12) month anniversary of such date of termination.\n(d) Non-Disparagement. I agree that during the Employment Period, and at all times thereafter, I will not make any disparaging\nor\ndefamatory comments regarding (i) any member of the Company Group or its respective current or former directors, officers, or employees, or\n(ii) my relationship with any member of the Company Group, or (iii) any conduct or events which precipitated any termination of my employment\nfrom any member of the Company Group. Similarly, the Company shall instruct its executive officers and directors to refrain from making any\ndisparaging or defamatory comments regarding (i) me in any respect, or (ii) my relationship with any member of the Company Group, or (iii) the\nconduct or events that precipitated my termination of employment from any member of the Company Group (it being understood that the foregoing\nshall not prevent any representative of the Company Group from verifying my employment to any potential subsequent employer). However,\nthe\nobligations under this subparagraph (d) shall not apply to disclosures required by applicable law, regulation, or order of a court or governmental\nagency.\n(e) Consideration. I agree that as additional consideration for my compliance with the terms and conditions of this Non-\nInterference Agreement, upon the termination of employment for any reason other than by the Company for Cause (as defined in my Employment\nAgreement, dated November 4, 2010, with the Company (the "Employment Agreement")), the Company shall pay me $200,000 (the "Non-\nInterference Consideration"), payable in substantially equal monthly installments during the Post-Termination Restricted Period. The Non-\nInterference Consideration shall be in addition to any severance benefits that I may receive upon a termination of my employment under the terms\nof\nmy Employment Agreement, and I acknowledge and agree that the payment of the Non-Interference Consideration shall be subject to my execution,\ndelivery to the Company, and non-revocation of the Release of Claims (as defined in the Employment Agreement) in accordance with the provisions\nof Section 8(h) of the Employment Agreement. I agree further that the payment of the Non-Interference Consideration shall, subject to delivery\nof\nwritten notice from the Company and an opportunity to address the Company's Board of Directors within five (5) business days following receipt of\nsuch notice, immediately cease if I am in breach of any provision of this Non-Interference Agreement.\n(f) Other Restrictions. The covenants contained in this Section 5 are in addition to, and not in lieu of, any similar covenants to\nwhich Employee may be subject from time to time.\nSection 6. Reasonableness of Restrictions.\nI acknowledge and recognize the highly competitive nature of the Company's business, that access to Confidential Information renders\nme special and unique within the Company's industry, and that I will have the opportunity to develop substantial relationships with existing and\nprospective clients, accounts, customers, consultants, contractors, investors, and strategic partners of the Company Group during the course of and as\na\nresult of my employment with the Company. In light of the foregoing, I recognize and acknowledge that the restrictions and limitations set forth in\nthis Non-Interference Agreement are reasonable and valid in geographical and temporal scope and in all other respects and are essential to protect\nthe value of the business and assets of the Company Group. I acknowledge further that the restrictions and limitations set forth in this Non-\nInterference Agreement will not materially interfere with my ability to earn a living following the termination of my employment with the Company\nand that my ability to earn a livelihood without violating such restrictions is a material condition to my employment with the Company.\nSection 7. Independence; Severability; Blue Pencil.\nEach of the rights enumerated in this Non-Interference Agreement shall be independent of the others and shall be in addition to and not\nin lieu of any other rights and remedies available to the Company Group at law or in equity. If any of the provisions of this Non-Interference\nAgreement or any part of any of them is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of\nthis Non-Interference Agreement, which shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are\nheld\nto\nbe invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, I agree that the court making\nsuch determination shall have the power to reduce the duration, scope, and/or area of such provision to the maximum and/or broadest duration,\nscope, and/or area permissible by law, and in its reduced form said provision shall then be enforceable.\nSection 8. Injunctive Relief.\nI expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in this Non-Interference\nAgreement may result in substantial, continuing, and irreparable injury to the members of the Company Group. Therefore, I hereby agree that, in\naddition to any other remedy that may be available to the Company, any member of the Company Group shall be entitled to seek injunctive relief\n(but not on an ex parte basis), specific performance, or other equitable relief by a court of appropriate jurisdiction in the event of any breach or\nthreatened breach of the terms of this Non-Interference Agreement without the necessity of proving irreparable harm or injury as a result of such\nbreach or threatened breach. Notwithstanding any other provision to the contrary, I acknowledge and agree that the Post-Termination Restricted\nPeriod shall be tolled during any period of violation of any of the covenants in Section 5 hereof and during any other period required for litigation\nduring which the Company or any other member of the Company Group seeks to enforce such covenants against me if it is ultimately determined\nthat I was in breach of such covenants.\nSection 9. Cooperation.\nI agree that, following any termination of my employment, I will continue to provide reasonable cooperation to the Company and/or any\nother member of the Company Group and its or their respective counsel in connection with any investigation, administrative proceeding, or litigation\nrelating to any matter that occurred during my employment in which I was involved or of which I have knowledge. As a condition of such\ncooperation, the Company shall reimburse me for reasonable out-of-pocket expenses incurred at the request of the Company with respect to my\ncompliance with this paragraph, and I shall be entitled to indemnification in accordance with the terms of Section 5(b) of my employment agreement\nwith the Company. I also agree that, in the event that I am subpoenaed by any person or entity (including, but not limited to, any government agency)\nto give testimony or provide documents (in a deposition, court proceeding, or otherwise) that in any way relates to my employment by the Company\nand/or any other member of the Company Group, I will give prompt notice of such request to the Company and will make no disclosure until the\nCompany and/or the other member of the Company Group has had a reasonable opportunity to contest the right of the requesting person or entity to\nsuch disclosure.\nSection 10. General Provisions.\n(a) Governing Law and Jurisdiction. EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE VALIDITY,\nINTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS NON-INTERFERENCE AGREEMENT IS GOVERNED BY AND IS\nTO BE CONSTRUED UNDER THE LAWS OF THE STATE OF MASSACHUSETTS APPLICABLE TO AGREEMENTS MADE AND TO BE\nPERFORMED IN THAT STATE, WITHOUT REGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR\nRELATING TO THIS NON-INTERFERENCE AGREEMENT OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN\nANY UNITED STATES DISTRICT COURT SITTING IN MASSACHUSETTS, TO THE EXTENT FEDERAL JURISDICTION EXISTS, AND\nIN ANY COURT SITTING IN MASSACHUSETTS, BUT ONLY IN THE EVENT FEDERAL JURISDICTION DOES NOT EXIST, AND ANY\nAPPLICABLE APPELLATE COURTS. BY EXECUTION OF THIS NON-INTERFERENCE AGREEMENT, THE PARTIES HERETO, AND\nTHEIR RESPECTIVE AFFILIATES, CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, AND WAIVE ANY RIGHT\nTO\nCHALLENGE JURISDICTION OR VENUE IN SUCH COURT WITH REGARD TO ANY SUIT, ACTION, OR PROCEEDING UNDER OR IN\nCONNECTION WITH THIS NON-INTERFERENCE AGREEMENT. EACH PARTY TO THIS NON-INTERFERENCE AGREEMENT ALSO\nHEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT, ACTION, OR PROCEEDING UNDER OR\nIN\nCONNECTION WITH THIS NON-INTERFERENCE AGREEMENT.\n(b) Entire Agreement. This Non-Interference Agreement sets forth the entire agreement and understanding between the Company\nand me relating to the subject matter herein and merges all prior discussions between us. No modification or amendment to this Non-Interference\nAgreement, nor any waiver of any rights under this Non-Interference Agreement, will be effective unless in writing signed by the party to\nbe\ncharged. Any subsequent change or changes in my duties, obligations, rights, or compensation will not affect the validity or scope of this Non-\nInterference Agreement.\n(c) No Right of Continued Employment. I acknowledge and agree that nothing contained herein shall be construed as granting me\nany right to continued employment by the Company, and the right of the Company to terminate my employment at any time and for any reason, with\nor without cause, is specifically reserved.\n(d) Successors and Assigns. This Non-Interference Agreement will be binding upon my heirs, executors, administrators, and\nother\nlegal\nrepresentatives and will be for the benefit of the Company, its successors, and its assigns. I expressly acknowledge and agree that this\nNon-Interference Agreement may be assigned by the Company without my consent to any other member of the Company Group as well as any\npurchaser of all or substantially all of the assets or stock of the Company, whether by purchase, merger, or other similar corporate transaction,\nprovided that the license granted pursuant to Section 2(a) may be assigned to any third party by the Company without my consent.\n(e) Survival. The provisions of this Non-Interference Agreement shall survive the termination of my employment with the\nCompany and/or the assignment of this Non-Interference Agreement by the Company to any successor in interest or other assignee.\n*\n*\n*\nI, Raymond L. D' Arcy, have executed this Confidentiality, Non-Interference, and Invention Assignment Agreement on the respective\ndate set forth below:\nDate: /s/ Raymond L. 'Arcy\n11/4/10\nRaymond L. D' 'Arcy\nAcknowledged and agreed as of\nthis 4th day of November 2010:\nINTERACTIVE DATA CORPORATION\n/s/ Mason Slaine\nBy: Mason Slaine\nTitle: President and CEO\nSCHEDULE A\nLIST OF PRIOR DEVELOPMENTS\nAND ORIGINAL WORKS OF AUTHORSHIP\nEXCLUDED FROM SECTION 2\nIdentifying Number or\nTitle\nDate\nBrief Description\nX\nNo Developments or improvements\nAdditional Sheets Attached\nSignature of Employee:\n/s/ Raymond L. D' 'Arcy\nPrint Name of Employee: Raymond L. D'Arcy\nDate: November 4, 2010	EX-10.29 9 dex1029.htm CONFIDENTIALITY, NON-INTERFERENCE AND INVENTION ASSIGNMENT\nAGREEMENT\nExhibit 10.29\nCONFIDENTIALITY, NON-INTERFERENCE, AND INVENTION ASSIGNMENT AGREEMENT\nAs a condition of my becoming employed by, or continuing employment with, Interactive Data Corporation, a Delaware corporation (the\n“Company”), and in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by the\nCompany, I agree to the following:\nSection 1. Confidential Information.\n(a) Company Group Information. I acknowledge that, during the course of my employment, I will have access to information\nabout the Company and its direct and indirect parents and subsidiaries (collectively, the “Company Group”) and that my employment with the\nCompany shall bring me into close contact with confidential and proprietary information of the Company Group. In recognition of the foregoing, I\nagree, at all times during the term of my employment with the Company and for the ten (10) year period following my termination of my\nemployment with the Company Group for any reason, to hold in confidence, and not to use, except for the benefit of the Company Group, or to\ndisclose to any person, firm, corporation, or other entity without written authorization of the Company, any Confidential Information that I obtain or\ncreate. I further agree not to make copies of such Confidential Information except as authorized by the Company. I understand that “Confidential\nInformation” means information that the Company Group has developed, acquired, created, compiled, discovered, or owned or will develop, acquire,\ncreate, compile, discover, or own, that has value in or to the business of the Company Group that is not generally known and that the Company\nwishes to maintain as confidential. I understand that Confidential Information includes, but is not limited to, any and all non-public information that\nrelates to the actual or anticipated business and/or products, research, or development of the Company, or to the Company’s technical data, trade\nsecrets, or know-how, including, but not limited to, research, product plans, or other information regarding the Company’s products or services and\nmarkets, customer lists, and customers (including, but not limited to, customers of the Company on whom I called or with whom I may become\nacquainted during the term of my employment), software, developments, inventions, processes, formulas, technology, designs, drawings,\nengineering, hardware configuration information, marketing, finances, and other business information disclosed by the Company either directly or\nindirectly in writing, orally, or by drawings or inspection of premises, parts, equipment, or other Company property. Notwithstanding the foregoing,\nConfidential Information shall not include (i) any of the foregoing items that have become publicly known through no unauthorized disclosure by me\nor others who were under confidentiality obligations as to the item or items involved or (ii) any information that I am required to disclose to, or by,\nany governmental or judicial authority; provided, however, that in such event I will give the Company prompt written notice thereof so that the\nCompany Group may seek an appropriate protective order and/or waive in writing compliance with the confidentiality provisions of this\nConfidentiality, Non-Interference, and Invention Assignment Agreement (the “Non-Interference Agreement”).\n(b) Former Employer Information. I represent that my performance of all of the terms of this Non-Interference Agreement as an\nemployee of the Company has not breached and will not breach any agreement to keep in confidence proprietary information,\nknowledge, or data acquired by me in confidence or trust prior or subsequent to the commencement of my employment with the Company, and I will\nnot disclose to any member of the Company Group, or induce any member of the Company Group to use, any developments, or confidential or\nproprietary information or material I may have obtained in connection with employment with any prior employer in violation of a confidentiality\nagreement, nondisclosure agreement, or similar agreement with such prior employer.\nSection 2. Developments.\n(a) Developments Retained and Licensed. I have attached hereto, as Schedule A, a list describing with particularity all\ndevelopments, original works of authorship, developments, improvements, and trade secrets that I can demonstrate were created or owned by me\nprior to the commencement of my employment (collectively referred to as “Prior Developments”), which belong solely to me or belong to me jointly\nwith another, that relate in any way to any of the actual or proposed businesses, products, or research and development of any member of the\nCompany Group, and that are not assigned to the Company hereunder, or if no such list is attached, I represent that there are no such Prior\nDevelopments. If, during any period during which I perform or performed services for the Company Group both before or after the date hereof (the\n“Assignment Period”), whether as an officer, employee, director, independent contractor, consultant, or agent, or in any other capacity, I incorporate\n(or have incorporated) into a Company Group product or process a Prior Development owned by me or in which I have an interest, I hereby grant the\nCompany, and the Company Group shall have, a non-exclusive, royalty-free, irrevocable, perpetual, transferable worldwide license (with the right to\nsublicense) to make, have made, copy, modify, make derivative works of, use, sell, and otherwise distribute such Prior Development as part of or in\nconnection with such product or process.\n(b) Assignment of Developments. I agree that I will, without additional compensation, promptly make full written disclosure to\nthe Company, and will hold in trust for the sole right and benefit of the Company all developments, original works of authorship, inventions,\nconcepts, know-how, improvements, trade secrets, and similar proprietary rights, whether or not patentable or registrable under copyright or similar\nlaws, which I may solely or jointly conceive or develop or reduce to practice, or have solely or jointly conceived or developed or reduced to practice,\nor have caused or may cause to be conceived or developed or reduced to practice, during the Assignment Period, whether or not during regular\nworking hours, provided they either (i) relate at the time of conception, development or reduction to practice to the business of any member of the\nCompany Group, or the actual or anticipated research or development of any member of the Company Group; (ii) result from or relate to any work\nperformed for any member of the Company Group; or (iii) are developed through the use of equipment, supplies, or facilities of any member of the\nCompany Group, or any Confidential Information, or in consultation with personnel of any member of the Company Group (collectively referred to\nas “Developments”). I further acknowledge that all Developments made by me (solely or jointly with others) within the scope of and during the\nAssignment Period are “works made for hire” (to the greatest extent permitted by applicable law) for which I am, in part, compensated by my salary,\nunless regulated otherwise by law, but that, in the event any such Development is deemed not to be a work made for hire, I hereby assign to the\nCompany, or its designee, all my right, title, and interest throughout the world in and to any such Development.\n(c) Maintenance of Records. I agree to keep and maintain adequate and current written records of all Developments made by me\n(solely or jointly with others) during the Assignment Period. The records may be in the form of notes, sketches, drawings, flow charts, electronic\ndata or recordings, and any other format. The records will be available to and remain the sole property of the Company Group at all times. I agree\nnot to remove such records from the Company’s place of business except as expressly permitted by Company Group policy, which may, from time to\ntime, be revised at the sole election of the Company Group for the purpose of furthering the business of the Company Group.\n(d) Intellectual Property Rights. I agree to assist the Company, or its designee, at the Company’s expense, in every way to secure\nthe rights of the Company Group in the Developments and any copyrights, patents, trademarks, service marks, database rights, domain names, mask\nwork rights, moral rights, and other intellectual property rights relating thereto in any and all countries, including the disclosure to the Company of\nall pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, assignments, recordations, and all other\ninstruments that the Company shall deem necessary in order to apply for, obtain, maintain, and transfer such rights and in order to assign and convey\nto the Company Group the sole and exclusive right, title, and interest in and to such Developments, and any intellectual property and other\nproprietary rights relating thereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such\ninstrument or papers shall continue after the termination of the Assignment Period until the expiration of the last such intellectual property right to\nexpire in any country of the world; provided, however, the Company shall reimburse me for my reasonable expenses incurred in connection with\ncarrying out the foregoing obligation. If the Company is unable because of my mental or physical incapacity or unavailability for any other reason to\nsecure my signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering\nDevelopments or original works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the Company and\nits duly authorized officers and agents as my agent and attorney in fact to act for and in my behalf and stead to execute and file any such applications\nor records and to do all other lawfully permitted acts to further the application for, prosecution, issuance, maintenance, and transfer of letters patent\nor registrations thereon with the same legal force and effect as if originally executed by me. I hereby waive and irrevocably quitclaim to the\nCompany any and all claims, of any nature whatsoever, that I now or hereafter have for past, present, or future infringement of any and all\nproprietary rights assigned to the Company.\nSection 3. Returning Company Group Documents.\nI agree that, at the time of termination of my employment with the Company for any reason, I will deliver to the Company (and will not\nkeep in my possession, recreate, or deliver to anyone else) any and all Confidential Information and all other documents, materials, information, and\nproperty developed by me pursuant to my employment or otherwise belonging to the Company. I agree further that any property situated on the\nCompany’s premises and owned by the Company (or any other member of the Company Group), including disks and other storage media, filing\ncabinets, and other work areas, is subject to inspection by personnel of any member of the Company Group at any time with or without notice.\nSection 4. Disclosure of Agreement.\nAs long as it remains in effect, I will disclose the existence of this Non-Interference Agreement to any prospective employer, partner, co-\nventurer, investor, or lender prior to entering into an employment, partnership, or other business relationship with such person or entity.\nSection 5. Restrictions on Interfering.\n(a) Non-Competition. During the period of my employment with the Company (the “Employment Period”) and the Post-\nTermination Restricted Period, I shall not, directly or indirectly, individually or on behalf of any person, company, enterprise, or entity, or as a sole\nproprietor, partner, stockholder, director, officer, principal, agent, or executive, or in any other capacity or relationship, engage in any Competitive\nActivities within any State of the United States of America and any other jurisdiction in which any member of the Company Group engages (or has\ncommitted plans to engage) in business during the Employment Period, or during the Post-Termination Restricted Period was engaged in business\n(or had committed plans to engage of which I have knowledge at the time of termination of my employment); provided, that my indirect ownership\n(i.e ., ownership through a fund that is not controlled by me or any of my affiliates) of not more than three percent (3%) of the outstanding shares of\nany publicly traded company shall not be deemed to breach of this Section 5(a).\n(b) Non-Interference. During the Employment Period and the Post-Termination Restricted Period, I shall not, directly or\nindirectly for my own account or for the account of any other individual or entity, engage in Interfering Activities.\n(c) Definitions. For purposes of this Non-Interference Agreement:\n(i) “Business Relation” shall mean any current or prospective client, customer, licensee, or other business relation of the\nCompany Group, or any such relation that was a client, customer, licensee, supplier, or other business relation within the six\n(6) month period prior to the expiration of the Employment Period, in each case, to whom I provided services, or with whom I\ntransacted business, or whose identity became known to me in connection with my relationship with or employment by the\nCompany.\n(ii) “Competitive Activities” shall mean any business activities in which any member of the Company Group is engaged (or\nhas committed plans to engage) during the Employment Period.\n(iii) “Interfering Activities” shall mean (A) encouraging, soliciting, or inducing, or in any manner attempting to encourage,\nsolicit, or induce, any individual or entity employed by, or providing consulting services to, any member of the Company Group\nto terminate such individual’s or entity’s employment or services (or in the case of a consultant, materially reducing such\nservices) with the Company Group;\n(B) hiring any individual who was employed by any member of the Company Group within the six (6) month period prior to the\ndate of such hiring; or (C) encouraging, soliciting, or inducing, or in any manner attempting to encourage, solicit, or induce, any\nBusiness Relation to cease doing business with or reduce the amount of business conducted with the Company Group, or in any\nway interfering with the relationship between any such Business Relation and the Company Group.\n(iv) “Post-Termination Restricted Period” shall mean the period commencing on the date of the termination of the\nEmployment Period for any reason and ending on the twelve (12) month anniversary of such date of termination.\n(d) Non-Disparagement. I agree that during the Employment Period, and at all times thereafter, I will not make any disparaging\nor defamatory comments regarding (i) any member of the Company Group or its respective current or former directors, officers, or employees, or\n(ii) my relationship with any member of the Company Group, or (iii) any conduct or events which precipitated any termination of my employment\nfrom any member of the Company Group. Similarly, the Company shall instruct its executive officers and directors to refrain from making any\ndisparaging or defamatory comments regarding (i) me in any respect, or (ii) my relationship with any member of the Company Group, or (iii) the\nconduct or events that precipitated my termination of employment from any member of the Company Group (it being understood that the foregoing\nshall not prevent any representative of the Company Group from verifying my employment to any potential subsequent employer). However, the\nobligations under this subparagraph (d) shall not apply to disclosures required by applicable law, regulation, or order of a court or governmental\nagency.\n(e) Consideration. I agree that as additional consideration for my compliance with the terms and conditions of this Non-\nInterference Agreement, upon the termination of employment for any reason other than by the Company for Cause (as defined in my Employment\nAgreement, dated November 4, 2010, with the Company (the “Employment Agreement”)), the Company shall pay me $200,000 (the “Non-\nInterference Consideration”), payable in substantially equal monthly installments during the Post-Termination Restricted Period. The Non-\nInterference Consideration shall be in addition to any severance benefits that I may receive upon a termination of my employment under the terms of\nmy Employment Agreement, and I acknowledge and agree that the payment of the Non-Interference Consideration shall be subject to my execution,\ndelivery to the Company, and non-revocation of the Release of Claims (as defined in the Employment Agreement) in accordance with the provisions\nof Section 8(h) of the Employment Agreement. I agree further that the payment of the Non-Interference Consideration shall, subject to delivery of\nwritten notice from the Company and an opportunity to address the Company’s Board of Directors within five (5) business days following receipt of\nsuch notice, immediately cease if I am in breach of any provision of this Non-Interference Agreement.\n(f) Other Restrictions. The covenants contained in this Section 5 are in addition to, and not in lieu of, any similar covenants to\nwhich Employee may be subject from time to time.\nSection 6. Reasonableness of Restrictions.\nI acknowledge and recognize the highly competitive nature of the Company’s business, that access to Confidential Information renders\nme special and unique within the Company’s industry, and that I will have the opportunity to develop substantial relationships with existing and\nprospective clients, accounts, customers, consultants, contractors, investors, and strategic partners of the Company Group during the course of and as\na result of my employment with the Company. In light of the foregoing, I recognize and acknowledge that the restrictions and limitations set forth in\nthis Non-Interference Agreement are reasonable and valid in geographical and temporal scope and in all other respects and are essential to protect\nthe value of the business and assets of the Company Group. I acknowledge further that the restrictions and limitations set forth in this Non-\nInterference Agreement will not materially interfere with my ability to earn a living following the termination of my employment with the Company\nand that my ability to earn a livelihood without violating such restrictions is a material condition to my employment with the Company.\nSection 7. Independence; Severability; Blue Pencil.\nEach of the rights enumerated in this Non-Interference Agreement shall be independent of the others and shall be in addition to and not\nin lieu of any other rights and remedies available to the Company Group at law or in equity. If any of the provisions of this Non-Interference\nAgreement or any part of any of them is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of\nthis Non-Interference Agreement, which shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are\nheld to be invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, I agree that the court making\nsuch determination shall have the power to reduce the duration, scope, and/or area of such provision to the maximum and/or broadest duration,\nscope, and/or area permissible by law, and in its reduced form said provision shall then be enforceable.\nSection 8. Injunctive Relief.\nI expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in this Non-Interference\nAgreement may result in substantial, continuing, and irreparable injury to the members of the Company Group. Therefore, I hereby agree that, in\naddition to any other remedy that may be available to the Company, any member of the Company Group shall be entitled to seek injunctive relief\n(but not on an ex parte basis), specific performance, or other equitable relief by a court of appropriate jurisdiction in the event of any breach or\nthreatened breach of the terms of this Non-Interference Agreement without the necessity of proving irreparable harm or injury as a result of such\nbreach or threatened breach. Notwithstanding any other provision to the contrary, I acknowledge and agree that the Post-Termination Restricted\nPeriod shall be tolled during any period of violation of any of the covenants in Section 5 hereof and during any other period required for litigation\nduring which the Company or any other member of the Company Group seeks to enforce such covenants against me if it is ultimately determined\nthat I was in breach of such covenants.\nSection 9. Cooperation.\nI agree that, following any termination of my employment, I will continue to provide reasonable cooperation to the Company and/or any\nother member of the Company Group and its or their respective counsel in connection with any investigation, administrative proceeding, or litigation\nrelating to any matter that occurred during my employment in which I was involved or of which I have knowledge. As a condition of such\ncooperation, the Company shall reimburse me for reasonable out-of-pocket expenses incurred at the request of the Company with respect to my\ncompliance with this paragraph, and I shall be entitled to indemnification in accordance with the terms of Section 5(b) of my employment agreement\nwith the Company. I also agree that, in the event that I am subpoenaed by any person or entity (including, but not limited to, any government agency)\nto give testimony or provide documents (in a deposition, court proceeding, or otherwise) that in any way relates to my employment by the Company\nand/or any other member of the Company Group, I will give prompt notice of such request to the Company and will make no disclosure until the\nCompany and/or the other member of the Company Group has had a reasonable opportunity to contest the right of the requesting person or entity to\nsuch disclosure.\nSection 10. General Provisions.\n(a) Governing Law and Jurisdiction. EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE VALIDITY,\nINTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS NON-INTERFERENCE AGREEMENT IS GOVERNED BY AND IS\nTO BE CONSTRUED UNDER THE LAWS OF THE STATE OF MASSACHUSETTS APPLICABLE TO AGREEMENTS MADE AND TO BE\nPERFORMED IN THAT STATE, WITHOUT REGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR\nRELATING TO THIS NON-INTERFERENCE AGREEMENT OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN\nANY UNITED STATES DISTRICT COURT SITTING IN MASSACHUSETTS, TO THE EXTENT FEDERAL JURISDICTION EXISTS, AND\nIN ANY COURT SITTING IN MASSACHUSETTS, BUT ONLY IN THE EVENT FEDERAL JURISDICTION DOES NOT EXIST, AND ANY\nAPPLICABLE APPELLATE COURTS. BY EXECUTION OF THIS NON -INTERFERENCE AGREEMENT, THE PARTIES HERETO, AND\nTHEIR RESPECTIVE AFFILIATES, CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, AND WAIVE ANY RIGHT TO\nCHALLENGE JURISDICTION OR VENUE IN SUCH COURT WITH REGARD TO ANY SUIT, ACTION, OR PROCEEDING UNDER OR IN\nCONNECTION WITH THIS NON-INTERFERENCE AGREEMENT. EACH PARTY TO THIS NON -INTERFERENCE AGREEMENT ALSO\nHEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT, ACTION, OR PROCEEDING UNDER OR IN\nCONNECTION WITH THIS NON-INTERFERENCE AGREEMENT.\n(b) Entire Agreement. This Non-Interference Agreement sets forth the entire agreement and understanding between the Company\nand me relating to the subject matter herein and merges all prior discussions between us. No modification or amendment to this Non-Interference\nAgreement, nor any waiver of any rights under this Non-Interference Agreement, will be effective unless in writing signed by the party to be\ncharged. Any subsequent change or changes in my duties, obligations, rights, or compensation will not affect the validity or scope of this Non-\nInterference Agreement.\n(c) No Right of Continued Employment. I acknowledge and agree that nothing contained herein shall be construed as granting me\nany right to continued employment by the Company, and the right of the Company to terminate my employment at any time and for any reason, with\nor without cause, is specifically reserved.\n(d) Successors and Assigns. This Non-Interference Agreement will be binding upon my heirs, executors, administrators, and\nother legal representatives and will be for the benefit of the Company, its successors, and its assigns. I expressly acknowledge and agree that this\nNon-Interference Agreement may be assigned by the Company without my consent to any other member of the Company Group as well as any\npurchaser of all or substantially all of the assets or stock of the Company, whether by purchase, merger, or other similar corporate transaction,\nprovided that the license granted pursuant to Section 2(a) may be assigned to any third party by the Company without my consent.\n(e) Survival. The provisions of this Non-Interference Agreement shall survive the termination of my employment with the\nCompany and/or the assignment of this Non-Interference Agreement by the Company to any successor in interest or other assignee.\n*\n*\n*\nI, Raymond L. D’Arcy, have executed this Confidentiality, Non-Interference, and Invention Assignment Agreement on the respective\ndate set forth below:\nDate: /s/ Raymond L. D’Arcy\n11/4/10\nRaymond L. D’Arcy\nAcknowledged and agreed as of\nthis 4th day of November 2010:\nINTERACTIVE DATA CORPORATION\n/s/ Mason Slaine\nBy: Mason Slaine\nTitle: President and CEO\nSCHEDULE A\nLIST OF PRIOR DEVELOPMENTS\nAND ORIGINAL WORKS OF AUTHORSHIP\nEXCLUDED FROM SECTION 2\nTitle\nDate\nIdentifying Number or\nBrief Description\nX No Developments or improvements\nAdditional Sheets Attached\nSignature of Employee:\n/s/ Raymond L. D’Arcy\nPrint Name of Employee: Raymond L. D’Arcy\nDate: November 4, 2010
+5f542bf5a9d00298d7743fd2acbcbfd5.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 13 d342355dex99d2.htm NONDISCLOSURE AND STANDSTILL AGREEMENT\nExhibit (d)(2)\nP.F. CHANG’S CHINA BISTRO, INC.\nNONDISCLOSURE AND STANDSTILL AGREEMENT\nThis Nondisclosure and Standstill Agreement (this “Agreement”) by and between P.F. Chang’s China Bistro, Inc, a Delaware\ncorporation (“Provider”), and Centerbridge Advisors II, LLC (“Recipient”), is dated as of March 2, 2012 (the “Effective Date”). Provider and\nRecipient shall each be referred to herein individually, as a “Party” and collectively, as the “Parties.”\n1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties, Provider\nis prepared to make available to Recipient certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this\nAgreement, and Recipient hereby agrees to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term “affiliates” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or\nunder common control with such Person.\n(b) The term “Beneficial Ownership” when used with reference to a security shall have the meaning ascribed to it under the Securities\nExchange Act of 1934, as amended (the “1934 Act”), except that for purposes of this definition, the term security shall include any option, warrant,\nor convertible security regardless of exercise or conversion date, and also include any stock appreciation right, or similar right with an exercise or\nconversion privilege or a settlement payment or mechanism at a price related to the security or with a value derived in whole or in part from the\nvalue of the security, whether or not such instrument or right shall be subject to settlement in securities or otherwise and any other direct or indirect\nopportunity to profit or share in any profit derived from any increase or decrease in tl1e value of the security\n(c) The term “Evaluation Material” means information (whether oral, written, electronic or otherwise) concerning Provider which has\nbeen or is furnished to Recipient or its Representatives (as defined below) by or on behalf of Provider in connection with Recipient’s evaluation of a\nPossible Transaction, including Provider’s business, financial condition, operations, assets and liabilities, and includes all notes, analyses,\ncompilations, studies, interpretations or other documents prepared by Recipient or its Representatives which contain or are based upon, in whole or\nin part, the information furnished by Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes\ngenerally available to the public other than as a result of a disclosure by Recipient or any of its Representatives in breach of this Agreement, (ii) was\nwithin a Recipient’s possession prior to its being furnished to Recipient by or on behalf of the Provider (including without limitation general\nknowledge of the restaurant industry), provided that the source of such information was not bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, or (iii) is or becomes available to\nRecipient from a source other than Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or\nother contractual, legal or fiduciary obligation of confidentiality to, Provider with respect to such information.\n(d) The term “Representatives” shall mean the directors, officers, employees or partners of a Party who have a need to know Evaluation\nMaterial for purposes of evaluating a Possible Transaction.\n(e) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. Recipient shall, and shall cause its Representatives to, use the Evaluation Material solely for the purpose of\nevaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representative not\nto, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to\nRecipient’s Representatives who need to know such information for the sole purpose of helping Recipient evaluate a Possible Transaction; provided,\nfurther, that Recipient requires each of its Representatives to be bound by the terms of this agreement applicable to Representatives to the fullest\nextent as if they were Parties hereto. Recipient agrees to be responsible for any breach of this Agreement by any of Recipient’s Representatives.\nThis Agreement does not grant Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as\nprovided herein. In addition, all proprietary and intellectual property rights in and to the Evaluation Material shall remain the sole property of\nProvider, and nothing in this Agreement shall be construed in any way to grant to Recipient or its Representatives or any other Person any express or\nimplied option, license or other right, title or interest in or to any Evaluation Material, or to any intellectual property rights embodied in such\nEvaluation Material.\n4. Non-Disclosure of Discussions. Subject to Section 5, Recipient agrees that, without the prior written consent of Provider, Recipient will not,\nand it will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been provided to Recipient or Recipient’s\nRepresentatives, (ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or other transaction with\nthe Provider or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof).\n5. Legally Required Disclosure. If Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests\nfor information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation\nMaterial or any of the facts disclosure of which is prohibited under Section 4 above, Recipient shall (to the extent legally permissible) provide\nProvider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that Provider\nmay seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by Provider, Recipient or any of its Representatives is nonetheless legally compelled to\ndisclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would otherwise be liable for contempt or suffer\nother censure or penalty,\n2\nRecipient or its respective Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation\nMaterial or any such facts which Recipient or its Representatives is legally required to disclose, provided that Recipient and/or its Representatives\nreasonably cooperate with Provider at Provider’s sole expense to obtain an appropriate protective order or other reliable assurance that confidential\ntreatment will be accorded such Evaluation Material or such facts by the Person receiving the material.\n6. “Click Through” Agreements. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed\nby an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which Recipient or its Representatives\nare granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of such an offering memorandum or\nsubmission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional confidentiality conditions, it\nbeing understood and agreed that Recipient’s and its Representatives’ confidentiality obligations with respect to the Evaluation Material are\nexclusively governed by this Agreement and may not be enlarged except by an agreement executed by the Parties hereto in traditional written\nformat.\n7. Return or Destruction of Evaluation Material. If one the Parties decides that it does not wish to proceed with a Possible Transaction, it will\npromptly inform the other Party of that decision. In that case, or at any time upon the request of Provider for any reason, Recipient will, and will\ncause its Representatives to, within 10 business days after receipt of such notice or request, destroy or return all Evaluation Materials. Recipient shall\nprovide to Provider a certificate of compliance with the previous sentence signed by an executive officer of Recipient. Notwithstanding the return or\ndestruction of the Evaluation Material, Recipient and its Representatives will continue to be bound by Recipient’s obligations hereunder with respect\nto such Evaluation Material for the term hereof. Notwithstanding the foregoing, the legal department of Recipient may maintain a copy of the\nEvaluation Material in its restricted access files for actual or anticipated litigation, regulatory compliance or corporate record keeping purposes.\n8. No Solicitation/Employment. Recipient will not, within one year from the date of this Agreement, directly or indirectly solicit the\nemployment or consulting services of or employ or engage as a consultant any of the officers or employees of Provider, so long as they are employed\nby Provider and for three months after they cease to be employed by Provider. Recipient is not prohibited from soliciting by means of a general\nadvertisement not directed at (i) any particular individual or (ii) the employees of Provider generally.\n3\n9. Standstill. Recipient’s Beneficial Ownership of the Company’s capital stock as of the Effective Date is set forth on Schedule A attached\nhereto. Recipient agrees that, for a period of one year after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing\nby Provider, neither it nor any of its respective Representatives, will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person\nto effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of any securities (or beneficial ownership thereof) or all or substantially all of the assets of Provider or any of\nits subsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving Provider or any of its subsidiaries,\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Provider or any\nof its subsidiaries, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of Provider;\n(b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of Provider;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving Provider or its securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of\nProvider;\n(e) take any action which might force Provider to make a public announcement regarding any of the types of matters set forth in\n(a) above; or\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nRecipient also agrees during the Standstill Period not to request Provider (or its directors, officers, employees or agents), directly or\nindirectly, to amend or waive any provision of this Section 9 (including this sentence).\nRecipient further agrees that unless otherwise directed by Provider in writing (i) all communications with the Company regarding a\nPossible Transaction, (ii) requests for additional information, facility tours, or management meetings, and (iii) discussions or questions regarding\nprocedures with respect to a Possible Transaction, will be submitted or directed by Recipient or its Representatives only to Roger Matthews of\nGoldman Sachs & Co., as Provider’s financial advisor, or a person or persons designated in writing by Mr. Matthews.\n10. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, Recipient\nacknowledges and agrees that the Parties have a commonality of interest with respect to such matters and it\n4\nis the desire, intention and mutual understanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in\nany way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nshall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.\n11. Compliance with Securities Laws. Recipient acknowledges that the Evaluation Material may include material nonpublic information\n(within the meaning of the securities laws of the United States) with respect to provider. Recipient agrees not to use and will cause its\nRepresentatives to agree not to use any Evaluation Material of the Provider in violation of applicable securities laws.\n12. Not a Transaction Agreement. Recipient understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and Recipient hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until\nthe Parties shall have entered into a final definitive agreement for a Possible Transaction. Recipient also agrees that, unless and until a final definitive\nagreement regarding a Possible Transaction has been executed and delivered, neither of the Parties will be under any legal obligation of any kind\nwhatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. None of the\nParties are under any obligation to accept any proposal regarding a Possible Transaction and the Parties may terminate discussions and negotiations\nat any time.\n13. No Representations or Warranties; No Obligation to Disclose. Recipient understands and acknowledges that neither Provider nor its\nRepresentatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished\nby or on behalf of Provider and shall have no liability to Recipient, its Representatives or any other Person relating to or resulting from the use of the\nEvaluation Material furnished to Recipient or its respective Representatives or any errors therein or omissions therefrom. As to the information\ndelivered to Recipient, Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a\nPossible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this\nAgreement shall be construed as obligating Provider to provide, or to continue to provide, any information to any Person.\n14. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of one of the Parties hereto except by\nwritten consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure\nor delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n5\n15. Remedies. Recipient understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by\nRecipient or any of its Representatives and that Provider shall be entitled to seek equitable relief, including injunction and specific performance, as a\nremedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for Provider for a breach by Recipient\nor its Representatives of this Agreement, but shall be in addition to all other remedies available at law or equity to Provider.\n16. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that Recipient or its\nRepresentatives have breached this Agreement, then Recipient shall be liable and pay to Provider the reasonable legal fees and costs incurred by\nProvider in connection with such litigation, including any appeal therefrom, as a court of competent jurisdiction may deem appropriate under the\ncircumstances.\n17. Governing Law. This Agreement is for the benefit of each of the Parties and shall be governed by and construed in accordance with the\nlaws of the State of Delaware applicable to agreements made and to be performed entirely within such state.\n18. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n19. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either of the Patties by virtue of the authorship at any of the provisions of this Agreement.\n20. Term. This Agreement, and all obligations and other provisions hereunder, shall terminate two years after the date of this Agreement.\n21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n22. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\n6\n23. Consent to Representation. This agreement also constitutes notice to Recipient that Provider has engaged DLA Piper LLP (US) as its legal\ncounsel in connection with the Possible Transaction, and Recipient hereby (i) consents to the continued representation of Provider by DLA Piper\nLLP (US) in relation to the Possible Transaction notwithstanding the fact that DLA Piper LLP (US) may have represented, and may currently or in\nthe future represent, Recipient and/or any of its respective affiliates with respect to unrelated matters and (ii) waive any actual or alleged conflict and\nactual or alleged violation of ethical or comparable rules applicable to DLA Piper LLP (US) that may arise from its representation of Provider in\nconnection with the Possible Transaction, including but not limited to representing Provider against Recipient and/or its affiliates in litigation,\narbitration, or mediation in connection therewith. In addition, Recipient hereby acknowledges that the consent and waiver under this paragraph is\nvoluntary and informed, and that Recipient has obtained independent legal advice with respect to this consent and waiver. Recipient further agrees\nthat they are each aware of the extent of their respective relationships, if any, with DLA Piper LLP (US), and do not require additional information\nfrom DLA Piper LLP (US) in order to understand the nature of this consent. If Recipient has any questions regarding this paragraph, please contact\nJay Rains at DLA Piper LLP (US) at (858) 677-1476 or jay.rains@dlapiper.com . DLA Piper LLP (US) is an express third party beneficiary of this\nparagraph.\n7\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative\nas of the date written below.\nP.F. CHANG’S CHINA BISTRO, INC.\nADDRESS FOR NOTICE:\n7676 E. Pinnacle Peak Road,\nScottsdale, Arizona 85255\nAttn: Richard L. Federico\nChief Executive Officer\nBy: /s/ Mark Mumford\nName: Mark Mumford\nTitle: CFO\nDate: March 2, 2012\nCENTERBRIDGE ADVISORS II, LLC\nADDRESS FOR NOTICE:\n375 Park Avenue, 12th Floor\nNew York, NY 10152\nAttention: Legal & Compliance\nBy: /s/ Susanne V. Clark\nName: Susanne V. Clark\nTitle: Authorized Signatory\nDate: March 2, 2012	EX-99.(D)(2) 13 d342355dex99d2.htm NONDISCLOSURE AND STANDSTILL AGREEMENT\nExhibit (d)(2)\nP.F. CHANG’S CHINA BISTRO, INC.\nNONDISCLOSURE AND STANDSTILL AGREEMENT\nThis Nondisclosure and Standstill Agreement (this “Agreement”) by and between P.F. Chang’s China Bistro, Inc, a Delaware\ncorporation (“Provider”), and Centerbridge Advisors II, LLC (“Recipient”), is dated as of March 2, 2012 (the “Effective Date”). Provider and\nRecipient shall each be referred to herein individually, as a “Party” and collectively, as the “Parties.”\n1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties, Provider\nis prepared to make available to Recipient certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this\nAgreement, and Recipient hereby agrees to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term “affiliates” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or\nunder common control with such Person.\n(b) The term “Beneficial Ownership” when used with reference to a security shall have the meaning ascribed to it under the Securities\nExchange Act of 1934, as amended (the “1934 Act”), except that for purposes of this definition, the term security shall include any option, warrant,\nor convertible security regardless of exercise or conversion date, and also include any stock appreciation right, or similar right with an exercise or\nconversion privilege or a settlement payment or mechanism at a price related to the security or with a value derived in whole or in part from the\nvalue of the security, whether or not such instrument or right shall be subject to settlement in securities or otherwise and any other direct or indirect\nopportunity to profit or share in any profit derived from any increase or decrease in tlle value of the security\n(c) The term “Evaluation Material” means information (whether oral, written, electronic or otherwise) concerning Provider which has\nbeen or is furnished to Recipient or its Representatives (as defined below) by or on behalf of Provider in connection with Recipient’s evaluation of a\nPossible Transaction, including Provider’s business, financial condition, operations, assets and liabilities, and includes all notes, analyses,\ncompilations, studies, interpretations or other documents prepared by Recipient or its Representatives which contain or are based upon, in whole or\nin part, the information furnished by Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes\ngenerally available to the public other than as a result of a disclosure by Recipient or any of its Representatives in breach of this Agreement, (ii) was\nwithin a Recipient’s possession prior to its being furnished to Recipient by or on behalf of the Provider (including without limitation general\nknowledge of the restaurant industry), provided that the source of such information was not bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, or (iii) is or becomes available to\nRecipient from a source other than Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or\nother contractual, legal or fiduciary obligation of confidentiality to, Provider with respect to such information.\n(d) The term “Representatives” shall mean the directors, officers, employees or partners of a Party who have a need to know Evaluation\nMaterial for purposes of evaluating a Possible Transaction.\n(e) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. Recipient shall, and shall cause its Representatives to, use the Evaluation Material solely for the purpose of\nevaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representative not\nto, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to\nRecipient’s Representatives who need to know such information for the sole purpose of helping Recipient evaluate a Possible Transaction; provided,\nfurther, that Recipient requires each of its Representatives to be bound by the terms of this agreement applicable to Representatives to the fullest\nextent as if they were Parties hereto. Recipient agrees to be responsible for any breach of this Agreement by any of Recipient’s Representatives.\n \nThis Agreement does not grant Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as\nprovided herein. In addition, all proprietary and intellectual property rights in and to the Evaluation Material shall remain the sole property of\nProvider, and nothing in this Agreement shall be construed in any way to grant to Recipient or its Representatives or any other Person any express or\nimplied option, license or other right, title or interest in or to any Evaluation Material, or to any intellectual property rights embodied in such\nEvaluation Material.\n4. Non-Disclosure of Discussions. Subject to Section 5, Recipient agrees that, without the prior written consent of Provider, Recipient will not,\nand it will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been provided to Recipient or Recipient’s\nRepresentatives, (ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or other transaction with\nthe Provider or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof).\n5. Legally Required Disclosure. If Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests\nfor information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation\nMaterial or any of the facts disclosure of which is prohibited under Section 4 above, Recipient shall (to the extent legally permissible) provide\nProvider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that Provider\nmay seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by Provider, Recipient or any of its Representatives is nonetheless legally compelled to\ndisclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would otherwise be liable for contempt or suffer\nother censure or penalty,\nRecipient or its respective Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation\nMaterial or any such facts which Recipient or its Representatives is legally required to disclose, provided that Recipient and/or its Representatives\nreasonably cooperate with Provider at Provider’s sole expense to obtain an appropriate protective order or other reliable assurance that confidential\ntreatment will be accorded such Evaluation Material or such facts by the Person receiving the material.\n6. “Click Through” Agreements. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed\nby an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which Recipient or its Representatives\nare granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of such an offering memorandum or\nsubmission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional confidentiality conditions, it\nbeing understood and agreed that Recipient’s and its Representatives’ confidentiality obligations with respect to the Evaluation Material are\nexclusively governed by this Agreement and may not be enlarged except by an agreement executed by the Parties hereto in traditional written\nformat.\n7. Return or Destruction of Evaluation Material. If one the Parties decides that it does not wish to proceed with a Possible Transaction, it will\npromptly inform the other Party of that decision. In that case, or at any time upon the request of Provider for any reason, Recipient will, and will\ncause its Representatives to, within 10 business days after receipt of such notice or request, destroy or return all Evaluation Materials. Recipient shall\nprovide to Provider a certificate of compliance with the previous sentence signed by an executive officer of Recipient. Notwithstanding the return or\ndestruction of the Evaluation Material, Recipient and its Representatives will continue to be bound by Recipient’s obligations hereunder with respect\nto such Evaluation Material for the term hereof. Notwithstanding the foregoing, the legal department of Recipient may maintain a copy of the\nEvaluation Material in its restricted access files for actual or anticipated litigation, regulatory compliance or corporate record keeping purposes.\n8. No Solicitation/Employment. Recipient will not, within one year from the date of this Agreement, directly or indirectly solicit the\nemployment or consulting services of or employ or engage as a consultant any of the officers or employees of Provider, so long as they are employed\nby Provider and for three months after they cease to be employed by Provider. Recipient is not prohibited from soliciting by means of a general\nadvertisement not directed at (i) any particular individual or (ii) the employees of Provider generally.\n3\n9. Standstill. Recipient’s Beneficial Ownership of the Company’s capital stock as of the Effective Date is set forth on Schedule A attached\nhereto. Recipient agrees that, for a period of one year after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing\nby Provider, neither it nor any of its respective Representatives, will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person\nto effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of any securities (or beneficial ownership thereof) or all or substantially all of the assets of Provider or any of\nits subsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving Provider or any of its subsidiaries,\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Provider or any\nof its subsidiaries, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of Provider;\n(b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of Provider;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving Provider or its securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of\nProvider;\n(e) take any action which might force Provider to make a public announcement regarding any of the types of matters set forth in\n(a) above; or\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nRecipient also agrees during the Standstill Period not to request Provider (or its directors, officers, employees or agents), directly or\nindirectly, to amend or waive any provision of this Section 9 (including this sentence).\nRecipient further agrees that unless otherwise directed by Provider in writing (i) all communications with the Company regarding a\nPossible Transaction, (ii) requests for additional information, facility tours, or management meetings, and (iii) discussions or questions regarding\nprocedures with respect to a Possible Transaction, will be submitted or directed by Recipient or its Representatives only to Roger Matthews of\nGoldman Sachs & Co., as Provider’s financial advisor, or a person or persons designated in writing by Mr. Matthews.\n10. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, Recipient\nacknowledges and agrees that the Parties have a commonality of interest with respect to such matters and it\n4\nis the desire, intention and mutual understanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in\nany way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nshall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.\n11. Compliance with Securities Laws. Recipient acknowledges that the Evaluation Material may include material nonpublic information\n(within the meaning of the securities laws of the United States) with respect to provider. Recipient agrees not to use and will cause its\nRepresentatives to agree not to use any Evaluation Material of the Provider in violation of applicable securities laws.\n12. Not a Transaction Agreement. Recipient understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and Recipient hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until\nthe Parties shall have entered into a final definitive agreement for a Possible Transaction. Recipient also agrees that, unless and until a final definitive\nagreement regarding a Possible Transaction has been executed and delivered, neither of the Parties will be under any legal obligation of any kind\nwhatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. None of the\nParties are under any obligation to accept any proposal regarding a Possible Transaction and the Parties may terminate discussions and negotiations\nat any time.\n13. No Representations or Warranties; No Obligation to Disclose. Recipient understands and acknowledges that neither Provider nor its\nRepresentatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished\nby or on behalf of Provider and shall have no liability to Recipient, its Representatives or any other Person relating to or resulting from the use of the\nEvaluation Material furnished to Recipient or its respective Representatives or any errors therein or omissions therefrom. As to the information\ndelivered to Recipient, Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a\nPossible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this\nAgreement shall be construed as obligating Provider to provide, or to continue to provide, any information to any Person.\n14. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of one of the Parties hereto except by\nwritten consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure\nor delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n5\n15. Remedies. Recipient understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by\nRecipient or any of its Representatives and that Provider shall be entitled to seek equitable relief, including injunction and specific performance, as a\nremedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for Provider for a breach by Recipient\nor its Representatives of this Agreement, but shall be in addition to all other remedies available at law or equity to Provider.\n16. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that Recipient or its\nRepresentatives have breached this Agreement, then Recipient shall be liable and pay to Provider the reasonable legal fees and costs incurred by\nProvider in connection with such litigation, including any appeal therefrom, as a court of competent jurisdiction may deem appropriate under the\ncircumstances.\n17. Governing Law. This Agreement is for the benefit of each of the Parties and shall be governed by and construed in accordance with the\nlaws of the State of Delaware applicable to agreements made and to be performed entirely within such state.\n18. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n19. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either of the Patties by virtue of the authorship at any of the provisions of this Agreement.\n20. Term. This Agreement, and all obligations and other provisions hereunder, shall terminate two years after the date of this Agreement.\n21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n22. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\n23. Consent to Representation. This agreement also constitutes notice to Recipient that Provider has engaged DLA Piper LLP (US) as its legal\ncounsel in connection with the Possible Transaction, and Recipient hereby (i) consents to the continued representation of Provider by DLA Piper\nLLP (US) in relation to the Possible Transaction notwithstanding the fact that DLA Piper LLP (US) may have represented, and may currently or in\nthe future represent, Recipient and/or any of its respective affiliates with respect to unrelated matters and (ii) waive any actual or alleged conflict and\nactual or alleged violation of ethical or comparable rules applicable to DLA Piper LLP (US) that may arise from its representation of Provider in\nconnection with the Possible Transaction, including but not limited to representing Provider against Recipient and/or its affiliates in litigation,\narbitration, or mediation in connection therewith. In addition, Recipient hereby acknowledges that the consent and waiver under this paragraph is\nvoluntary and informed, and that Recipient has obtained independent legal advice with respect to this consent and waiver. Recipient further agrees\nthat they are each aware of the extent of their respective relationships, if any, with DLA Piper LLP (US), and do not require additional information\nfrom DLA Piper LLP (US) in order to understand the nature of this consent. If Recipient has any questions regarding this paragraph, please contact\nJay Rains at DLA Piper LLP (US) at (858) 677-1476 or jay.rains@dlapiper.com. DLA Piper LLP (US) is an express third party beneficiary of this\nparagraph.\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative\nas of the date written below.\nP.F. CHANG’S CHINA BISTRO, INC.\nADDRESS FOR NOTICE:\n7676 E. Pinnacle Peak Road,\nScottsdale, Arizona 85255\nAttn: Richard L. Federico\nChief Executive Officer\nBy: /s/ Mark Mumford\nName: Mark Mumford\nTitle: CFO\nDate: March 2, 2012\nCENTERBRIDGE ADVISORS II, LLC\nADDRESS FOR NOTICE:\n375 Park Avenue, 12th Floor\nNew York, NY 10152\nAttention: Legal & Compliance\nBy: /s/ Susanne V. Clark\nName: Susanne V. Clark\nTitle: Authorized Signatory\nDate: March 2, 2012	EX-99.(D)(2) 13 d342355dex99d2.htm NONDISCLOSURE AND STANDSTILL AGREEMENT\nExhibit (d)(2)\nP.F. CHANG'S CHINA BISTRO, INC.\nNONDISCLOSURE AND STANDSTILL AGREEMENT\nThis Nondisclosure and Standstill Agreement (this "Agreement") by and between P.F. Chang's China Bistro, Inc, a Delaware\ncorporation ("Provider"), and Centerbridge Advisors II, LLC ("Recipient"), is dated as of March 2, 2012 (the "Effective Date"). Provider and\nRecipient shall each be referred to herein individually, as a "Party" and collectively, as the "Parties."\n1. General. In connection with the consideration of a possible negotiated transaction (a "Possible Transaction") between the Parties, Provider\nis prepared to make available to Recipient certain "Evaluation Material" (as defined in Section 2 below) in accordance with the provisions of this\nAgreement, and Recipient hereby agrees to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term "affiliates" shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or\nunder common control with such Person.\n(b) The term "Beneficial Ownership" when used with reference to a security shall have the meaning ascribed to it under the Securities\nExchange Act of 1934, as amended (the "1934 Act"), except that for purposes of this definition, the term security shall include any option, warrant,\nor convertible security regardless of exercise or conversion date, and also include any stock appreciation right, or similar right with an exercise or\nconversion privilege or a settlement payment or mechanism at a price related to the security or with a value derived in whole or in part from the\nvalue of the security, whether or not such instrument or right shall be subject to settlement in securities or otherwise and any other direct or indirect\nopportunity to profit or share in any profit derived from any increase or decrease in tl1e value of the security\n(c) The term "Evaluation Material" means information (whether oral, written, electronic or otherwise) concerning Provider which has\nbeen or is furnished to Recipient or its Representatives (as defined below) by or on behalf of Provider in connection with Recipient's evaluation of\na\nPossible Transaction, including Provider's business, financial condition, operations, assets and liabilities, and includes all notes, analyses,\ncompilations, studies, interpretations or other documents prepared by Recipient or its Representatives which contain or are based upon, in whole or\nin part, the information furnished by Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes\ngenerally available to the public other than as a result of a disclosure by Recipient or any of its Representatives in breach of this Agreement, (ii)\nwas\nwithin a Recipient's possession prior to its being furnished to Recipient by or on behalf of the Provider (including without limitation general\nknowledge of the restaurant industry), provided that the source of such information was not bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, or (iii) is or becomes available to\nRecipient from a source other than Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with,\nor\nother contractual, legal or fiduciary obligation of confidentiality to, Provider with respect to such information.\n(d) The term "Representatives" shall mean the directors, officers, employees or partners of a Party who have a need to know Evaluation\nMaterial for purposes of evaluating a Possible Transaction.\n(e) The term "Person" includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. Recipient shall, and shall cause its Representatives to, use the Evaluation Material solely for the purpose of\nevaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representative not\nto, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to\nRecipient's Representatives who need to know such information for the sole purpose of helping Recipient evaluate a Possible Transaction; provided,\nfurther, that Recipient requires each of its Representatives to be bound by the terms of this agreement applicable to Representatives to the fullest\nextent as if they were Parties hereto. Recipient agrees to be responsible for any breach of this Agreement by any of Recipient's Representatives.\nThis Agreement does not grant Recipient or any of its Representatives any license to use the Provider's Evaluation Material except as\nprovided herein. In addition, all proprietary and intellectual property rights in and to the Evaluation Material shall remain the sole property of\nProvider, and nothing in this Agreement shall be construed in any way to grant to Recipient or its Representatives or any other Person any express or\nimplied option, license or other right, title or interest in or to any Evaluation Material, or to any intellectual property rights embodied in such\nEvaluation Material.\n4.\nNon-Disclosure of Discussions. Subject to Section 5, Recipient agrees that, without the prior written consent of Provider, Recipient will not,\nand it will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been provided to Recipient or Recipient's\nRepresentatives, (ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or other transaction with\nthe Provider or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof).\n5. Legally Required Disclosure. If Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests\nfor information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation\nMaterial or any of the facts disclosure of which is prohibited under Section 4 above, Recipient shall (to the extent legally permissible) provide\nProvider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed SO that Provider\nmay seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of\na\nprotective order or other remedy or the receipt of a waiver by Provider, Recipient or any of its Representatives is nonetheless legally compelled to\ndisclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would otherwise be liable for contempt or suffer\nother censure or penalty,\n2\nRecipient or its respective Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation\nMaterial or any such facts which Recipient or its Representatives is legally required to disclose, provided that Recipient and/or its Representatives\nreasonably cooperate with Provider at Provider's sole expense to obtain an appropriate protective order or other reliable assurance that confidential\ntreatment will be accorded such Evaluation Material or such facts by the Person receiving the material.\n6.\n"Click Through" Agreements. The terms of this Agreement shall control over any additional purported confidentiality requirements\nimposed\nby an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which Recipient or its Representatives\nare granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of such an offering memorandum or\nsubmission of an electronic signature, "clicking" on an "I Agree" icon or other indication of assent to such additional confidentiality conditions,\nit\nbeing understood and agreed that Recipient's and its Representatives' confidentiality obligations with respect to the Evaluation Material are\nexclusively governed by this Agreement and may not be enlarged except by an agreement executed by the Parties hereto in traditional written\nformat.\n7. Return or Destruction of Evaluation Material. If one the Parties decides that it does not wish to proceed with a Possible Transaction, it\nwill\npromptly inform the other Party of that decision. In that case, or at any time upon the request of Provider for any reason, Recipient will, and will\ncause its Representatives to, within 10 business days after receipt of such notice or request, destroy or return all Evaluation Materials. Recipient shall\nprovide to Provider a certificate of compliance with the previous sentence signed by an executive officer of Recipient. Notwithstanding the return or\ndestruction of the Evaluation Material, Recipient and its Representatives will continue to be bound by Recipient's obligations hereunder with respect\nto such Evaluation Material for the term hereof. Notwithstanding the foregoing, the legal department of Recipient may maintain a copy of the\nEvaluation Material in its restricted access files for actual or anticipated litigation, regulatory compliance or corporate record keeping purposes.\n8. No Solicitation/Employment. Recipient will not, within one year from the date of this Agreement, directly or indirectly solicit the\nemployment or consulting services of or employ or engage as a consultant any of the officers or employees of Provider, so long as they are employed\nby Provider and for three months after they cease to be employed by Provider. Recipient is not prohibited from soliciting by means of a general\nadvertisement not directed at (i) any particular individual or (ii) the employees of Provider generally.\n3\n9. Standstill. Recipient's Beneficial Ownership of the Company's capital stock as of the Effective Date is set forth on Schedule A attached\nhereto. Recipient agrees that, for a period of one year after the date of this Agreement (the "Standstill Period"), unless specifically invited in writing\nby Provider, neither it nor any of its respective Representatives, will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person\nto effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of any securities (or beneficial ownership thereof) or all or substantially all of the assets of Provider or any of\nits subsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving Provider or any of its subsidiaries,\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Provider or any\nof its subsidiaries, or\n(iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of Provider;\n(b) form, join or in any way participate in a "group" (as defined under the 1934 Act) with respect to the securities of Provider;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition),\nany\nextraordinary transaction involving Provider or its securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of\nProvider;\n(e) take any action which might force Provider to make a public announcement regarding any of the types of matters set forth in\n(a) above; or\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nRecipient also agrees during the Standstill Period not to request Provider (or its directors, officers, employees or agents), directly\nor\nindirectly, to amend or waive any provision of this Section 9 (including this sentence).\nRecipient further agrees that unless otherwise directed by Provider in writing (i) all communications with the Company regarding\na\nPossible Transaction, (ii) requests for additional information, facility tours, or management meetings, and (iii) discussions or questions regarding\nprocedures with respect to a Possible Transaction, will be submitted or directed by Recipient or its Representatives only to Roger Matthews of\nGoldman Sachs & Co., as Provider's financial advisor, or a person or persons designated in writing by Mr. Matthews.\n10. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, Recipient\nacknowledges and agrees that the Parties have a commonality of interest with respect to such matters and it\n4\nis the desire, intention and mutual understanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in\nany way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nshall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.\n11. Compliance with Securities Laws. Recipient acknowledges that the Evaluation Material may include material nonpublic information\n(within the meaning of the securities laws of the United States) with respect to provider. Recipient agrees not to use and will cause its\nRepresentatives to agree not to use any Evaluation Material of the Provider in violation of applicable securities laws.\n12. Not a Transaction Agreement Recipient understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and Recipient hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until\nthe Parties shall have entered into a final definitive agreement for a Possible Transaction. Recipient also agrees that, unless and until a final definitive\nagreement regarding a Possible Transaction has been executed and delivered, neither of the Parties will be under any legal obligation of any kind\nwhatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. None of the\nParties are under any obligation to accept any proposal regarding a Possible Transaction and the Parties may terminate discussions and negotiations\nat any time.\n13. No Representations or Warranties; No Obligation to Disclose. Recipient understands and acknowledges that neither Provider nor its\nRepresentatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished\nby\nor\non\nbehalf\nof\nProvider\nand\nshall\nhave\nno\nliability\nto\nRecipient,\nits\nRepresentatives\nor\nany\nother\nPerson\nrelating\nto\nor\nresulting\nfrom\nthe\nuse\nof\nthe\nEvaluation Material furnished to Recipient or its respective Representatives or any errors therein or omissions therefrom. As to the information\ndelivered to Recipient, Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a\nPossible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this\nAgreement shall be construed as obligating Provider to provide, or to continue to provide, any information to any Person.\n14. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of one of the Parties hereto except by\nwritten consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure\nor\ndelay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n5\n15. Remedies. Recipient understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by\nRecipient or any of its Representatives and that Provider shall be entitled to seek equitable relief, including injunction and specific performance, as\na\nremedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for Provider for a breach by Recipient\nor its Representatives of this Agreement, but shall be in addition to all other remedies available at law or equity to Provider.\n16. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that Recipient or its\nRepresentatives have breached this Agreement, then Recipient shall be liable and pay to Provider the reasonable legal fees and costs incurred by\nProvider in connection with such litigation, including any appeal therefrom, as a court of competent jurisdiction may deem appropriate under the\ncircumstances.\n17. Governing. Law. This Agreement is for the benefit of each of the Parties and shall be governed by and construed in accordance with the\nlaws of the State of Delaware applicable to agreements made and to be performed entirely within such state.\n18. Severability.. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of\nits\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n19. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either of the Patties by virtue of the authorship at any of the provisions of this Agreement.\n20. Term. This Agreement, and all obligations and other provisions hereunder, shall terminate two years after the date of this Agreement.\n21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n22. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\n6\n23. Consent to Representation. This agreement also constitutes notice to Recipient that Provider has engaged DLA Piper LLP (US) as its legal\ncounsel in connection with the Possible Transaction, and Recipient hereby (i) consents to the continued representation of Provider by DLA Piper\nLLP (US) in relation to the Possible Transaction notwithstanding the fact that DLA Piper LLP (US) may have represented, and may currently or in\nthe\nfuture represent, Recipient and/or any of its respective affiliates with respect to unrelated matters and (ii) waive any actual or alleged conflict and\nactual or alleged violation of ethical or comparable rules applicable to DLA Piper LLP (US) that may arise from its representation of Provider in\nconnection with the Possible Transaction, including but not limited to representing Provider against Recipient and/or its affiliates in litigation,\narbitration, or mediation in connection therewith. In addition, Recipient hereby acknowledges that the consent and waiver under this paragraph is\nvoluntary and informed, and that Recipient has obtained independent legal advice with respect to this consent and waiver. Recipient further agrees\nthat they are each aware of the extent of their respective relationships, if any, with DLA Piper LLP (US), and do not require additional information\nfrom DLA Piper LLP (US) in order to understand the nature of this consent. If Recipient has any questions regarding this paragraph, please contact\nJay Rains at DLA Piper LLP (US) at (858) 677-1476 or jay.rains@dlapiper.com DLA Piper LLP (US) is an express third party beneficiary of this\nparagraph.\n7\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative\nas of the date written below.\nP.F. CHANG'S CHINA BISTRO, INC.\nADDRESS FOR NOTICE:\n7676 E. Pinnacle Peak Road,\nScottsdale, Arizona 85255\nAttn: Richard L. Federico\nChief Executive Officer\nBy:\n/s/ Mark Mumford\nName: Mark Mumford\nTitle: CFO\nDate: March 2, 2012\nCENTERBRIDGE ADVISORS II, LLC\nADDRESS FOR NOTICE:\n375 Park Avenue, 12th Floor\nNew York, NY 10152\nAttention: Legal & Compliance\nBy:\n/s/ Susanne V. Clark\nName: Susanne V. Clark\nTitle: Authorized Signatory\nDate: March 2, 2012	EX-99.(D)(2) 13 d342355dex99d2.htm NONDISCLOSURE AND STANDSTILL AGREEMENT\nExhibit (d)(2)\nP.F. CHANG’S CHINA BISTRO, INC.\nNONDISCLOSURE AND STANDSTILL AGREEMENT\nThis Nondisclosure and Standstill Agreement (this “Agreement”) by and between P.F. Chang’s China Bistro, Inc, a Delaware\ncorporation (“Provider”), and Centerbridge Advisors II, LLC (“Recipient”), is dated as of March 2, 2012 (the “Effective Date”). Provider and\nRecipient shall each be referred to herein individually, as a “Party” and collectively, as the “Parties.”\n1. General. In connection with the consideration of a possible negotiated transaction (a “Possible Transaction”) between the Parties, Provider\nis prepared to make available to Recipient certain “Evaluation Material” (as defined in Section 2 below) in accordance with the provisions of this\nAgreement, and Recipient hereby agrees to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term “affiliates” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or\nunder common control with such Person.\n(b) The term “Beneficial Ownership” when used with reference to a security shall have the meaning ascribed to it under the Securities\nExchange Act of 1934, as amended (the “1934 Act”), except that for purposes of this definition, the term security shall include any option, warrant,\nor convertible security regardless of exercise or conversion date, and also include any stock appreciation right, or similar right with an exercise or\nconversion privilege or a settlement payment or mechanism at a price related to the security or with a value derived in whole or in part from the\nvalue of the security, whether or not such instrument or right shall be subject to settlement in securities or otherwise and any other direct or indirect\nopportunity to profit or share in any profit derived from any increase or decrease in tl1e value of the security\n(c) The term “Evaluation Material” means information (whether oral, written, electronic or otherwise) concerning Provider which has\nbeen or is furnished to Recipient or its Representatives (as defined below) by or on behalf of Provider in connection with Recipient’s evaluation of a\nPossible Transaction, including Provider’s business, financial condition, operations, assets and liabilities, and includes all notes, analyses,\ncompilations, studies, interpretations or other documents prepared by Recipient or its Representatives which contain or are based upon, in whole or\nin part, the information furnished by Provider hereunder. The term Evaluation Material does not include information which (i) is or becomes\ngenerally available to the public other than as a result of a disclosure by Recipient or any of its Representatives in breach of this Agreement, (ii) was\nwithin a Recipient’s possession prior to its being furnished to Recipient by or on behalf of the Provider (including without limitation general\nknowledge of the restaurant industry), provided that the source of such information was not bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such information, or (iii) is or becomes available to\nRecipient from a source other than Provider or its Representatives, provided that such source is not bound by a confidentiality agreement with, or\nother contractual, legal or fiduciary obligation of confidentiality to, Provider with respect to such information.\n(d) The term “Representatives” shall mean the directors, officers, employees or partners of a Party who have a need to know Evaluation\nMaterial for purposes of evaluating a Possible Transaction.\n(e) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. Recipient shall, and shall cause its Representatives to, use the Evaluation Material solely for the purpose of\nevaluating a Possible Transaction, keep the Evaluation Material confidential, and, subject to Section 5, will not, and will cause its Representative not\nto, disclose any of the Evaluation Material in any manner whatsoever; provided, however, that any of such information may be disclosed to\nRecipient’s Representatives who need to know such information for the sole purpose of helping Recipient evaluate a Possible Transaction; provided,\nfurther, that Recipient requires each of its Representatives to be bound by the terms of this agreement applicable to Representatives to the fullest\nextent as if they were Parties hereto. Recipient agrees to be responsible for any breach of this Agreement by any of Recipient’s Representatives.\nThis Agreement does not grant Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as\nprovided herein. In addition, all proprietary and intellectual property rights in and to the Evaluation Material shall remain the sole property of\nProvider, and nothing in this Agreement shall be construed in any way to grant to Recipient or its Representatives or any other Person any express or\nimplied option, license or other right, title or interest in or to any Evaluation Material, or to any intellectual property rights embodied in such\nEvaluation Material.\n4. Non-Disclosure of Discussions. Subject to Section 5, Recipient agrees that, without the prior written consent of Provider, Recipient will not,\nand it will cause its Representatives not to, disclose to any other Person (i) that Evaluation Material has been provided to Recipient or Recipient’s\nRepresentatives, (ii) that discussions or negotiations are taking place between the Parties concerning a Possible Transaction or other transaction with\nthe Provider or (iii) any of the terms, conditions or other facts with respect thereto (including the status thereof).\n5. Legally Required Disclosure. If Recipient or its Representatives are requested or required (by oral questions, interrogatories, other requests\nfor information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation\nMaterial or any of the facts disclosure of which is prohibited under Section 4 above, Recipient shall (to the extent legally permissible) provide\nProvider with prompt written notice of any such request or requirement together with copies of the material proposed to be disclosed so that Provider\nmay seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by Provider, Recipient or any of its Representatives is nonetheless legally compelled to\ndisclose Evaluation Material or any of the facts disclosure of which is prohibited under Section 4 or would otherwise be liable for contempt or suffer\nother censure or penalty,\n2\nRecipient or its respective Representatives may, without liability hereunder, disclose to such requiring Person only that portion of such Evaluation\nMaterial or any such facts which Recipient or its Representatives is legally required to disclose, provided that Recipient and/or its Representatives\nreasonably cooperate with Provider at Provider’s sole expense to obtain an appropriate protective order or other reliable assurance that confidential\ntreatment will be accorded such Evaluation Material or such facts by the Person receiving the material.\n6. “Click Through” Agreements. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed\nby an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which Recipient or its Representatives\nare granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of such an offering memorandum or\nsubmission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional confidentiality conditions, it\nbeing understood and agreed that Recipient’s and its Representatives’ confidentiality obligations with respect to the Evaluation Material are\nexclusively governed by this Agreement and may not be enlarged except by an agreement executed by the Parties hereto in traditional written\nformat.\n7. Return or Destruction of Evaluation Material. If one the Parties decides that it does not wish to proceed with a Possible Transaction, it will\npromptly inform the other Party of that decision. In that case, or at any time upon the request of Provider for any reason, Recipient will, and will\ncause its Representatives to, within 10 business days after receipt of such notice or request, destroy or return all Evaluation Materials. Recipient shall\nprovide to Provider a certificate of compliance with the previous sentence signed by an executive officer of Recipient. Notwithstanding the return or\ndestruction of the Evaluation Material, Recipient and its Representatives will continue to be bound by Recipient’s obligations hereunder with respect\nto such Evaluation Material for the term hereof. Notwithstanding the foregoing, the legal department of Recipient may maintain a copy of the\nEvaluation Material in its restricted access files for actual or anticipated litigation, regulatory compliance or corporate record keeping purposes.\n8. No Solicitation/Employment. Recipient will not, within one year from the date of this Agreement, directly or indirectly solicit the\nemployment or consulting services of or employ or engage as a consultant any of the officers or employees of Provider, so long as they are employed\nby Provider and for three months after they cease to be employed by Provider. Recipient is not prohibited from soliciting by means of a general\nadvertisement not directed at (i) any particular individual or (ii) the employees of Provider generally.\n3\n9. Standstill. Recipient’s Beneficial Ownership of the Company’s capital stock as of the Effective Date is set forth on Schedule A attached\nhereto. Recipient agrees that, for a period of one year after the date of this Agreement (the “Standstill Period”), unless specifically invited in writing\nby Provider, neither it nor any of its respective Representatives, will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person\nto effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of any securities (or beneficial ownership thereof) or all or substantially all of the assets of Provider or any of\nits subsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving Provider or any of its subsidiaries,\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Provider or any\nof its subsidiaries, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of Provider;\n(b) form, join or in any way participate in a “group” (as defined under the 1934 Act) with respect to the securities of Provider;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving Provider or its securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of\nProvider;\n(e) take any action which might force Provider to make a public announcement regarding any of the types of matters set forth in\n(a) above; or\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\nRecipient also agrees during the Standstill Period not to request Provider (or its directors, officers, employees or agents), directly or\nindirectly, to amend or waive any provision of this Section 9 (including this sentence).\nRecipient further agrees that unless otherwise directed by Provider in writing (i) all communications with the Company regarding a\nPossible Transaction, (ii) requests for additional information, facility tours, or management meetings, and (iii) discussions or questions regarding\nprocedures with respect to a Possible Transaction, will be submitted or directed by Recipient or its Representatives only to Roger Matthews of\nGoldman Sachs & Co., as Provider’s financial advisor, or a person or persons designated in writing by Mr. Matthews.\n10. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, Recipient\nacknowledges and agrees that the Parties have a commonality of interest with respect to such matters and it\n4\nis the desire, intention and mutual understanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in\nany way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege. All Evaluation Material that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nshall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.\n11. Compliance with Securities Laws. Recipient acknowledges that the Evaluation Material may include material nonpublic information\n(within the meaning of the securities laws of the United States) with respect to provider. Recipient agrees not to use and will cause its\nRepresentatives to agree not to use any Evaluation Material of the Provider in violation of applicable securities laws.\n12. Not a Transaction Agreement. Recipient understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and Recipient hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until\nthe Parties shall have entered into a final definitive agreement for a Possible Transaction. Recipient also agrees that, unless and until a final definitive\nagreement regarding a Possible Transaction has been executed and delivered, neither of the Parties will be under any legal obligation of any kind\nwhatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein. None of the\nParties are under any obligation to accept any proposal regarding a Possible Transaction and the Parties may terminate discussions and negotiations\nat any time.\n13. No Representations or Warranties; No Obligation to Disclose. Recipient understands and acknowledges that neither Provider nor its\nRepresentatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material furnished\nby or on behalf of Provider and shall have no liability to Recipient, its Representatives or any other Person relating to or resulting from the use of the\nEvaluation Material furnished to Recipient or its respective Representatives or any errors therein or omissions therefrom. As to the information\ndelivered to Recipient, Provider will only be liable for those representations or warranties which are made in a final definitive agreement regarding a\nPossible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein. Nothing in this\nAgreement shall be construed as obligating Provider to provide, or to continue to provide, any information to any Person.\n14. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of one of the Parties hereto except by\nwritten consent of the other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure\nor delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n5\n15. Remedies. Recipient understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by\nRecipient or any of its Representatives and that Provider shall be entitled to seek equitable relief, including injunction and specific performance, as a\nremedy for any such breach or threat thereof. Such remedies shall not be deemed to be the exclusive remedies for Provider for a breach by Recipient\nor its Representatives of this Agreement, but shall be in addition to all other remedies available at law or equity to Provider.\n16. Legal Fees. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that Recipient or its\nRepresentatives have breached this Agreement, then Recipient shall be liable and pay to Provider the reasonable legal fees and costs incurred by\nProvider in connection with such litigation, including any appeal therefrom, as a court of competent jurisdiction may deem appropriate under the\ncircumstances.\n17. Governing Law. This Agreement is for the benefit of each of the Parties and shall be governed by and construed in accordance with the\nlaws of the State of Delaware applicable to agreements made and to be performed entirely within such state.\n18. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n19. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either of the Patties by virtue of the authorship at any of the provisions of this Agreement.\n20. Term. This Agreement, and all obligations and other provisions hereunder, shall terminate two years after the date of this Agreement.\n21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter.\n22. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\n6\n23. Consent to Representation. This agreement also constitutes notice to Recipient that Provider has engaged DLA Piper LLP (US) as its legal\ncounsel in connection with the Possible Transaction, and Recipient hereby (i) consents to the continued representation of Provider by DLA Piper\nLLP (US) in relation to the Possible Transaction notwithstanding the fact that DLA Piper LLP (US) may have represented, and may currently or in\nthe future represent, Recipient and/or any of its respective affiliates with respect to unrelated matters and (ii) waive any actual or alleged conflict and\nactual or alleged violation of ethical or comparable rules applicable to DLA Piper LLP (US) that may arise from its representation of Provider in\nconnection with the Possible Transaction, including but not limited to representing Provider against Recipient and/or its affiliates in litigation,\narbitration, or mediation in connection therewith. In addition, Recipient hereby acknowledges that the consent and waiver under this paragraph is\nvoluntary and informed, and that Recipient has obtained independent legal advice with respect to this consent and waiver. Recipient further agrees\nthat they are each aware of the extent of their respective relationships, if any, with DLA Piper LLP (US), and do not require additional information\nfrom DLA Piper LLP (US) in order to understand the nature of this consent. If Recipient has any questions regarding this paragraph, please contact\nJay Rains at DLA Piper LLP (US) at (858) 677-1476 or jay.rains@dlapiper.com . DLA Piper LLP (US) is an express third party beneficiary of this\nparagraph.\n7\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative\nas of the date written below.\nP.F. CHANG’S CHINA BISTRO, INC.\nADDRESS FOR NOTICE:\n7676 E. Pinnacle Peak Road,\nScottsdale, Arizona 85255\nAttn: Richard L. Federico\nChief Executive Officer\nBy: /s/ Mark Mumford\nName: Mark Mumford\nTitle: CFO\nDate: March 2, 2012\nCENTERBRIDGE ADVISORS II, LLC\nADDRESS FOR NOTICE:\n375 Park Avenue, 12th Floor\nNew York, NY 10152\nAttention: Legal & Compliance\nBy: /s/ Susanne V. Clark\nName: Susanne V. Clark\nTitle: Authorized Signatory\nDate: March 2, 2012
+60a77a6809d3c8817a9d5ea5745d43d2.pdf	effective_date jurisdiction party term	EX-10.2 3 d799884dex102.htm CONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETE AGREEMENT\nEXHIBIT 10.2\nCONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETE AGREEMENT\nThis Confidentiality, Non-Solicitation and Non-Compete Agreement (the “Agreement”) dated this 18th day of September, 2014 is entered\ninto by and between Robert J. Shovlin (“Employee”) and NeoGenomics, Inc., a Nevada corporation (“Employer” or the (“Parent Company”)\nand collectively with NeoGenomics Laboratories, Inc., a Florida corporation and any entity that is wholly or partially owned by the Parent\nCompany or otherwise affiliated with the Parent Company, the “Company”). Hereinafter, each of the Employee or the Company maybe referred\nto as a “Party” and together be referred to as the “Parties”.\nRECITALS:\nWHEREAS, the Parties have entered into that certain Employment Agreement, of even dated herewith, that creates an employment\nrelationship between the Employer and Employee (the “Employment Agreement”); and\nWHEREAS, pursuant to the Employment Agreement, the Employee agreed to enter into the Company’s Confidentiality, Non-Solicitation\nand Non-Compete Agreement; and\nWHEREAS, the Company desires to protect and preserve its Confidential Information and its legitimate business interests by having the\nEmployee enter into this Agreement as part of the Employment Agreement; and\nWHEREAS, the Employee desires to establish and maintain an employment relationship with the Company and as part of such\nemployment relationship desires to enter into this Agreement with the Company; and\nWHEREAS, the Employee acknowledges that the terms of the Employment Agreement including, but not limited to the Company’s\ncommitments to the Employee with respect to base salary, fringe benefits and stock options are sufficient consideration to the Employee for the\nentry into this Agreement.\nWHEREAS, the Employee acknowledges that substantial cost and expense has been or will be incurred by the Company for Employee’s\ntraining, and Employee’s training and employment have caused, or will require, the disclosure of certain Company confidential and proprietary\ninformation, trade secrets and customer and supplier relationships.\nNOW, THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and\nsufficiency of which are hereby acknowledged, the Parties agree as follows:\n1. Term. Employee agrees that all of the provisions of this Agreement except for Sections 7 and 8 hereof shall be effective as of the date of this\nAgreement. The Company and the Employee agree that Sections 7 and 8 hereof will not become effective until the Employee’s first day of\nemployment with the Company. Employee agrees that the term of this Agreement (“Term”) shall be as follows: (i) in the event that Employee\ndoes not actually become an employee of the Company as contemplated by the Employment Agreement, then the Term shall be for a period of\ntwo (2) years from the date of this Agreement, or (ii) in the event Employee does become an employee of the Company, then the term of this\nAgreement shall survive and continue to be in force and effect for two years following the termination of any employment\n1\nrelationship between the Parties, whether termination is by the Company with or without cause, wrongful discharge, or for any other reason\nwhatsoever, or by the Employee unless an exception is specifically provided in certain situations in any such Restrictive Covenants.\n2. Definitions.\na. The term “Confidential Information” as used herein shall include all business practices, methods, techniques, or processes that:\n(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper\nmeans by, other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the\ncircumstances to maintain its secrecy. Confidential Information also includes, but is not limited to, files, letters, memoranda, reports, records,\ncomputer disks or other computer storage medium, data, models or any photographic or other tangible materials containing such information,\nCustomer lists and names and other information, Customer contracts, other corporate contracts, computer programs, proprietary technical\ninformation and/or strategies, sales, promotional or marketing plans or strategies, programs, techniques, practices, any expansion plans\n(including existing and entry into new geographic and/or product markets), pricing information, product or service offering specifications or\nplans thereof, business plans, financial information and other financial plans, data pertaining to the Company’s operating performance, employee\nlists, salary information, Personal Information, Protected Health Information, all information the Company receives from customers or other third\nparties that is not generally known to the public or is subject to a confidentiality agreement, training manuals, and other materials and business\ninformation of a similar nature, including information about the Company itself or any affiliated entity, which Employee acknowledges and\nagrees has been compiled by the Company’s expenditure of a great amount of time, money and effort, and that contains detailed information that\ncould not be created independently from public sources. Further, all data, spreadsheets, reports, records, know-how, verbal communication,\nproprietary and technical information and/or other confidential materials of similar kind transmitted by the Company to Employee or developed\nby the Employee on behalf of the Company as Work Product (as defined in Paragraph 7) are expressly included within the definition of\n“Confidential Information.” The Parties further agree that the fact the Company may be seeking to complete a business transaction is\n“Confidential Information” within the meaning of this Agreement, as well as all notes, analysis, work product or other material derived from\nConfidential Information. Nevertheless, Confidential Information shall not include any information of any kind which (1) is in the possession of\nthe Employee prior to the date of this Agreement, as shown by the Employee’s files and records, or (2) prior or after the time of disclosure\nbecomes part of the public knowledge or literature, not as a result of any violation of this Agreement, any violation of any similar agreement with\nany other party or inaction or action of the receiving party, or (3) is rightfully received from a third party without any obligation of\nconfidentiality; or (4) independently developed after termination without reference to the Confidential Information or materials based thereon; or\n(5) is disclosed pursuant to the order or requirement of a court, administrative agency, or other government body; or (6) is approved for release\nby the non-disclosing party.\nb. The term “Personal Information” (“PI”) is Confidential Information and includes, but is not limited to, an individual’s first name and\nlast name or first initial and last name in combination with any of the following: an individual’s social security number, tax I.D. number, social\ninsurance number, driver’s license number, state issued identification card number, financial information, healthcare information, or credit or\ndebit card number.\nc. The term “Protected Health Information” (“PHI”) is Confidential Information and includes information that is created, received,\nand/or maintained by the Company related to an individual’s health care (or payment related to health care) that directly or indirectly identifies\nthe individual.\n2\nd. The term “Customer” shall mean any person or entity which has purchased or ordered goods, products or services from the Company\nand/or entered into any contract for products or services with the Company within the one (1) year immediately preceding the termination of the\nEmployee’s employment with the Company.\ne. The term “Prospective Customer” shall mean any person or entity which has evidenced an intention to order products or services with\nthe Company within one year immediately preceding the termination of the Employee’s employment with the Company.\nf. The term “Restricted Area” shall include any geographical location anywhere in the United States. If the Restricted Area specified in\nthis Agreement should be judged unreasonable in any proceeding, then the Restricted Area shall be reduced so that the restrictions may be\nenforced as is judged to be reasonable.\ng. The phrase “directly or indirectly” shall include the Employee either on his/her own account, or as a partner, owner, promoter, joint\nventurer, employee, agent, consultant, advisor, manager, executive, independent contractor, officer, director, or a stockholder of 5% or more of\nthe voting shares of an entity in the Business of Company.\nh. The term “Business” shall mean the business of providing non-academic, for-profit cancer genetic and molecular laboratory testing\nservices, including, but not limited to, cytogenetics, flow cytometry, fluorescence in-situ hybridization (“FISH”), morphological studies, and\nmolecular testing, to hematologists, oncologists, urologists, pathologists, hospitals and other medical reference laboratories.\n3. Duty of Confidentiality.\na. All Confidential Information is considered highly sensitive and strictly confidential. The Employee agrees that at all times during the\nterm of this Agreement and after the termination of employment with the Company for as long as such information remains non-public\ninformation, the Employee shall (i) hold in confidence and refrain from disclosing to any other party all Confidential Information, whether\nwritten or oral, tangible or intangible, concerning the Company and its business and operations unless such disclosure is accompanied by a non-\ndisclosure agreement executed by the Company with the party to whom such Confidential Information is provided, (ii) use the Confidential\nInformation solely in connection with his or her employment with the Company and for no other purpose, (iii) take all reasonable precautions\nnecessary to ensure that the Confidential Information shall not be, or be permitted to be, shown, copied or disclosed to third parties, without the\nprior written consent of the Company, (iv) observe all security policies implemented by the Company from time to time with respect to the\nConfidential Information, and (v) not use or disclose, directly or indirectly, as an individual or as a partner, joint venturer, employee, agent,\nsalesman, contractor, officer, director or otherwise, for the benefit of himself or herself or any other person, partnership, firm, corporation,\nassociation or other legal entity, any Confidential Information, unless expressly permitted by this Agreement. Employee agrees that protection of\nthe Company’s Confidential Information constitutes a legitimate business interest justifying the restrictive covenants contained herein. Employee\nfurther agrees that the restrictive covenants contained herein are reasonably necessary to protect the Company’s legitimate business interest in\npreserving its Confidential Information. In addition, Employee will not view or access any PI or PHI unless required by the Company in the\ncourse Employee’s job duties and responsibilities for the Company and then only when authorized by the Company to do so. Employee\nacknowledges that he/she shall bear all costs, losses and damages resulting from any intentional breach of this paragraph, to the fullest extent\npermitted by applicable law.\n3\nb. In the event that the Employee is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding or\notherwise, such disclosure shall be limited to the narrowest disclosure so required and, except to the extent prohibited by law, Employee shall\ngive the Company at least two (2) weeks’ notice, if practicable, of the basis for any such compelled disclosure of Confidential Information and\nshall reasonably cooperate with the Company in limiting disclosure and obtaining suitable confidentiality protections.\nc. Employee acknowledge(s) that this “Confidential Information” is of value to the Company by providing it with a competitive advantage\nover their competitors, is not generally known to competitors of the Company, and is not intended by the Company for general dissemination.\nEmployee acknowledges that this “Confidential Information” derives independent economic value, actual or potential, from not being generally\nknown to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is\nthe subject of reasonable efforts to maintain its secrecy. Therefore, the Parties agree that all “Confidential Information” under this Agreement\nconstitutes “Trade Secrets” under Section 688.002 and Chapter 812 of the Florida Statutes.\n4. Limited Right of Disclosure. Except as otherwise permitted by this Agreement, Employee shall limit disclosure of pertinent Confidential\nInformation to Employee’s attorney, if any (“Representative(s)”), for the sole purpose of evaluating Employee’s relationship with the Company.\nParagraph 3 of this Agreement shall bind all such Representative(s).\n5. Return of Company Property and Confidential Materials. All tangible property, including cell phones, laptop computers and other\nCompany purchased property, as well as all Confidential Information, Customer and Prospective Customer information and property, provided to\nEmployee is the exclusive property of the Company and must be returned to the Company in accordance with the instructions of the Company\neither upon termination of the Employee’s employment or at such other time as is requested by the Company. Employee agree(s) that upon\ntermination of employment for any reason whatsoever Employee shall return all copies, in whatever form or media, including hard copies and\nelectronic copies, of Confidential Information to the Company, and Employee shall delete any copy of the Confidential Information on any\ncomputer file or database maintained by Employee and shall certify in writing that he/she has done so. In addition to returning all Confidential\nInformation to the Company as described above, Employee will destroy any analysis, notes, work product or other materials relating to or\nderived from the Confidential Information. Any retention of Confidential Information may constitute “civil theft” as such term is defined in\nChapter 772 of the Florida Statutes.\n6. Agreement Not To Circumvent. Employee agrees not to pursue any transaction or business relationship that is directly competitive to the\nBusiness of the Company that makes use of any Confidential Information during the Term of this Agreement, other than through the Company or\non behalf of the Company. It is further understood and agreed that, after the Employee’s employment with the Company has been terminated, the\nEmployee will direct all communications and requests from any third parties regarding Confidential Information or Business opportunities which\nuse Confidential Information through the Company’s then chief executive officer or president. Employee acknowledges that any violation of this\ncovenant may subject Employee to the remedies identified in Paragraph 9 in addition to any other available remedies.\n7. Title to Work Product. Employee agrees that all work products (including strategies and testing methodologies for competing in the genetics\ntesting industry, technical materials and diagrams, computer programs, financial plans and other written materials, websites, presentation\nmaterials, course materials, advertising campaigns, slogans, videos, pictures and other materials) created or developed by the Employee for the\nCompany during the term of the Employee’s employment with the Company or any successor to the Company until the date of termination of the\nEmployee (collectively, the “Work Product”), shall be considered a work made for hire and that the Company shall be the sole owner of all\nrights, including copyright, in and to the Work Product.\n4\nIf the Work Product, or any part thereof, does not qualify as a work made for hire, the Employee agrees to assign, and hereby assigns, to the\nCompany for the full term of the copyright and all extensions thereof all of its right, title and interest in and to the Work Product. All discoveries,\ninventions, innovations, works of authorship, computer programs, improvements and ideas, whether or not patentable or copyrightable or\notherwise protectable, conceived, completed, reduced to practice or otherwise produced by the Employee in the course of his or her services to\nthe Company in connection with or in any way relating to the Business of the Company or capable of being used or adapted for use therein or in\nconnection therewith shall forthwith be disclosed to the Company and shall belong to and be the absolute property of the Company unless\nassigned by the Company to another entity.\nEmployee hereby assigns to the Company all right, title and interest in all of the discoveries, inventions, innovations, works of authorship,\ncomputer programs, improvements, ideas and other work product; all copyrights, trade secrets, and trademarks in the same; and all patent\napplications filed and patents granted worldwide on any of the same for any work previously completed on behalf of the Company or work\nperformed under the terms of this Agreement or the Employment Agreement. Employee, if and whenever required to do so (whether during or\nafter the termination of his or her employment), shall at the expense of the Company apply or join in applying for copyrights, patents or\ntrademarks or other equivalent protection in the United States or in other parts of the world for any such discovery, invention, innovation, work\nof authorship, computer program, improvement, and idea as aforesaid and execute, deliver and perform all instruments and things necessary for\nvesting such patents, trademarks, copyrights or equivalent protections when obtained and all right, title and interest to and in the same in the\nCompany absolutely and as sole beneficial owner, unless assigned by the Company to another entity. Notwithstanding the foregoing, work\nproduct conceived by the Employee, which is not related to the Business of the Company, will remain the property of the Employee.\n8. Restrictive Covenant. The Company and its affiliated entities are engaged in the Business of providing genetic and molecular testing\nservices. The covenants contained in this Paragraph 8 (the “Restrictive Covenants”) are given and made by Employee to induce the Company to\nemploy Employee under the terms of the Employment Agreement, and Employee acknowledges sufficiency of consideration for these Restrictive\nCovenants. Employee expressly covenants and agrees that, during his or her employment and for a period of two (2) years following termination\nof such employment (such period of time is hereinafter referred to as the “Restrictive Period”), he/she will abide by the following restrictive\ncovenants unless an exception is specifically provided, in writing signed by Company, in certain situations in such Restrictive Covenants.\nNotwithstanding the forgoing, the Company agrees that the Restrictive Period of the Non-Competition Covenant described in paragraph 8(b)\nbelow shall be reduced to one year in the event that the Company consummates a change of control within the first year of the Employee’s\nemployment with the Company and the Employee is terminated without “Cause” (as such term is defined in the Employment Agreement) within\nninety (90) days of the effective date of such change of control.\na.\nNon-Solicitation. Employee agrees and acknowledges that, during the Restrictive Period, he/she will not, directly or indirectly, in\none or a series of transactions, as an individual or as a partner, joint venturer, employee, agent, salesperson, contractor, officer,\ndirector or otherwise, for the benefit of himself or herself or any other person, partnership, firm, corporation, association or other\nlegal entity:\n5\n(i) solicit or induce, or attempt to solicit or induce, any Customer or Prospective Customer of the Company to patronize or do\nbusiness with any other company (or business) that is in the Business conducted by the Company in the Restricted Area; or\n(ii) request or advise any Customer, supplier or vendor, or any Prospective Customer, prospective supplier or prospective vendor,\nof the Company, who was a Customer, Prospective Customer, supplier, prospective supplier, vendor or prospective vendor\nwithin one year immediately preceding the termination of the Employee’s employment with the Company, to withdraw,\ncurtail, cancel or refrain from doing business with the Company in any capacity; or\n(iii) manage, operate, be connected with, employed by, sell goods to, or perform services for, or on behalf of, in any manner, any\nCustomer, or Prospective Customer, of the Company either myself or on behalf of any other entity that may employ, engage or\nassociate with me in any fashion.\n(iv) recruit, solicit or otherwise induce any proprietor, partner, stockholder, lender, director, officer, employee, sales agent, joint\nventurer, investor, lessor, supplier, Customer, agent, representative or any other person which has a business relationship with\nthe Company or any Affiliated Entity to discontinue, reduce or detrimentally modify such employment, agency or business\nrelationship with the Company; or\n(v)\nemploy or solicit, or attempt to employ or solicit, for employment any person or agent who is then (or was at any time within\ntwelve (12) months prior to the date Employee or any entity related to Employee seeks to employ such person) employed or\nretained by the Company. Notwithstanding the forgoing, to the extent the Employee works for a larger firm or corporation\nafter his or her termination from the Company and he or she does not have any personal knowledge and/or control over the\nsolicitation of or the employment of a Company employee or agent, then this provision shall not be enforceable as it relates to\nthat employee.\nb. Non-Competition. Employee agrees and acknowledges that, during the Restrictive Period, he or she will not, directly or indirectly,\nfor himself , or on behalf of others, as an individual on Employee’s own account, or as a partner, joint venturer, employee, agent,\nsalesman, contractor, officer, director or otherwise, for him/herself or any other person, partnership, firm, corporation, association or\nother legal entity, enter into, engage in, accept employment from, or provide any services to, or for, any business that is in the\nBusiness of the Company, or engage in any activity that is competitive with the Company, in the Restricted Area. The parties agree\nthat this non-competition provision is intended to cover situations where a future business opportunity in which the Employee is\nengaged or a future employer of the Employee is selling the same or similar products and services in a Business which may compete\nwith the Company’s products and services to Customers and Prospective Customers of the Company in the Restricted Area. This\nprovision shall not cover future business opportunities or employers of the Employee that sell different types of products or services\nin the Restricted Area so long as such future business opportunities or employers are not in the Business of the Company.\nNotwithstanding the preceding paragraphs, the spirit and intent of this non-competition clause is not to deny the Employee the ability\nto support his or her family, but rather to prevent the Employee from using the knowledge and experiences obtained from the\nCompany in a similar competitive environment. Along those lines, should the Employee leave the employment of the Employer for\nany reason, he or she would be prohibited from joining a for-profit cancer testing\n6\ngenetics laboratory and/or company in the Business of the Company in the Restricted Area. The Parties agree that all non-profit\nmedical testing laboratories, hospitals and academic institutions as well as for-profit prenatal and pediatric/constitutional genetic\ntesting laboratories are excluded from the restrictions in paragraph 8(b). In other words, the Employee would be allowed under this\nnon-compete clause to work in any non-profit cancer genetics testing laboratory (e.g ., in academia) as well as in a private, for-profit\nprenatal laboratory or pediatric/constitutional genetics testing laboratory. Thus, the spirit and intent of this non-competition clause is\nintended to prevent the Employee from acting in any of the capacities outlined in this paragraph for any “for-profit” cancer genetics\ntesting laboratories that do the type of any one or more of the types of testing defined in the definition of Business in the Restricted\nArea.\n9. Acknowledgements of Employee.\na.\nThe Employee understands and acknowledges that any violation of this Agreement shall constitute a material breach of this\nAgreement and the Employment Agreement, and it will cause irreparable harm and loss to the Company for which monetary\ndamages will be an insufficient remedy. Therefore, the Parties agree that in addition to any other remedies available, the Company\nwill be entitled to the relief identified in Paragraph No. 10 below.\nb. The Restrictive Covenants shall be construed as agreements independent of any other provision in this Agreement and the existence\nof any claim or cause of action of Employee against the Company shall not constitute a defense to the enforcement of these\nRestrictive Covenants.\nc.\nEmployee agrees that the Restrictive Covenants are reasonably necessary to protect the legitimate business interests of the Company.\nd. Employee agrees that this Agreement may be enforced by the Company’s successor in interest by way of merger, business\ncombination or consolidation where a majority of the surviving entity is not owned by Company’s shareholders who owned a\nmajority of the Company’s voting shares prior to such transaction and Employee acknowledges and agrees that successors are\nintended beneficiaries of this Agreement.\ne.\nEmployee agrees that if any portion of the Restrictive Covenants is held by a court of competent jurisdiction to be unreasonable,\narbitrary or against public policy for any reason, such shall be modified accordingly as to time, geographic area and line of business\nso as to be enforceable to the fullest extent possible as to time, area and line of business.\nf. Employee acknowledges that any violations of the Agreement will be a material breach of this Agreement and may subject the\nEmployee, and/or any individual(s), partnership, corporation, joint venture or other type of business with whom the Employee is then\naffiliated or employed, to monetary and other damages.\ng. Employee agrees that any failure of the Company to enforce the Restrictive Covenants against any other employee, for any reason,\nshall not constitute a defense to enforcement of the Restrictive Covenants against the Employee.\n10. Specific Performance; Injunction. The Parties agree and acknowledge that the restrictions contained in Paragraphs 1-8 are reasonable in\nscope and duration and are necessary to protect the Company. If any provision of Paragraphs 1-8 as applied to any party or to any circumstance is\njudged by a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the\n7\nvalidity or enforceability of any other provision of this Agreement. If any such provision, or any part thereof, is held to be unenforceable because\nof the duration of such provision or the area covered thereby, the court making such determination shall have the power to reduce the duration\nand/or area of such provision, and/or to delete specific words or phrases, and in its reduced form, such provision shall then be enforceable and\nshall be enforced.\nAny unauthorized use or disclosure of Confidential Information in violation of Paragraphs 2-7 above or violation of the Restrictive\nCovenant in Paragraph 8 shall constitute a material breach of this Agreement and will cause irreparable harm and loss to the Company for which\nmonetary damages may be an insufficient remedy. Therefore, in addition to any other remedy available, the Company will be entitled to all\navailable civil remedies, including:\na.\nTemporary and permanent injunctive relief, without the necessity of posting a bond, restraining Employee or Representatives and any\nother person, partnership, firm, corporation, association or other legal entity acting in concert with Employee from any actual or\nthreatened unauthorized disclosure or use of Confidential Information, in whole or in part, or from rendering any service to any other\nperson, partnership, firm, corporation, association or other legal entity to whom such Confidential Information in whole or in part,\nhas been disclosed or used or is threatened to be disclosed or used; and\nb. Temporary and permanent injunctive relief, without the necessity of posting a bond, restraining the Employee from violating, directly\nor indirectly, the restrictions of the Restrictive Covenant in any capacity identified in Paragraph 8, supra, and restricting third parties\nfrom aiding and abetting any violations of the Restrictive Covenant; and\nc.\nCompensatory damages, including actual loss from misappropriation and unjust enrichment, and any and all legal fees, including\nwithout limitation, all attorneys’ fees, court costs, and any other related fees and/or costs incurred by the Company in enforcing this\nAgreement.\nNotwithstanding the forgoing, the Company acknowledges and agrees that the Employee will not be liable for the payment of any damages\nor fees owed to the Company through the operation of Paragraph 10c above, unless and until a court of competent jurisdiction has determined\nthat the Company or any successor is entitled to such recovery.\nNothing in this Agreement shall be construed as prohibiting the Company from pursuing any other legal or equitable remedies available to\nit for actual or threatened breach of the provisions of Paragraphs 1 – 8 of this Agreement, and the existence of any claim or cause of action by\nEmployee against the Company shall not constitute a defense to the enforcement by the Company of any of the provisions of this Agreement.\nThe Company and its Affiliated Entities have fully performed all obligations entitling it to the covenants of Paragraphs 1 – 8 of this Agreement\nand therefore such prohibitions are not executory or otherwise subject to rejection under the bankruptcy code.\n11. Duty to Disclose Agreement and to Report New Employer. Employee acknowledges that the Company has a legitimate business purpose\nin the protection of its Confidential Information. Employee also recognizes and agrees that the Company has the right to such information as is\nreasonably necessary to inform the Company whether the terms of this Agreement are being complied with. Accordingly, Employee agrees that\nEmployee will promptly notify any new employer of his/her obligations contained here. Employee also will provide the Company with the\nidentity of his/her new employer(s) and a description of the services being provided by him/her in sufficient detail to allow the Company to\nreasonably determine whether such activities fall within the scope of activities prohibited by the provisions of this Agreement\n8\n12. Representations as to Prior or Other Agreements. Employee represents and warrants that he/she is able to perform the contemplated\nduties of employment without being in breach of confidentiality agreements or disclosing proprietary information of any third party, and that no\nproprietary information of any third party shall be disclosed to the Company. Employee further represents and warrants that he/she is not\nprohibited from entering into this Agreement or performing services under it by any non-competition, non-solicitation, anti-piracy agreement,\nrelationship agreement, or any other restrictions. Employee agrees to indemnify and hold the Company harmless from all claims or causes of\naction by any person or entity against the Company arising out of any alleged breach by Employee of any such agreement or any other\nrestrictions inconsistent with the foregoing representations.\n13. Company Use of Employee Name, Image and Voice. The Company may use and publish Employee’s name and picture, including audio or\nvideo tape recordings, for purposes relating to its business without a specific release from Employee.\n14. Termination. Employee agrees to bring any claims that he/she may have against the Company within three hundred (300) days of the day\nthat Employee knew, or should have known, of the facts giving rise to the cause of action and waives any longer, but not shorter, statutory or\nother limitations periods. This includes, but is not limited to, the initial filing of a charge with the Equal Employment Opportunity Commission\nand/or state equivalent civil rights agency. However, Employee understands that he/she will thereafter have the right to pursue any federal claim\nin the manner prescribed in any right to sue letter that is issued by an agency.\n15. Nondisparagement. Employee shall not make any disparaging or defamatory comments about the Company, whether true or not, except to\ncomply with any summons, court order or subpoena.\n16. Waiver of Jury Trial. THE COMPANY AND EMPLOYEE EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION\nOR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY INSTRUMENT,\nDOCUMENT OR AGREEMENT DELIVERED IN CONNECTION HEREWITH OR HEREAFTER OR RELATED IN ANY\nFASHION TO EMPLOYEE’S EMPLOYMENT WITH COMPANY.\n17. Governing Law, Venue and Personal Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the\nlaws of state of Florida without regard to any statutory or common-law provision pertaining to conflicts of laws. The parties agree that courts of\ncompetent jurisdiction in Lee County, Florida and the United States District Court for the Southern District of Florida shall have concurrent\njurisdiction for purposes of entering temporary, preliminary and permanent injunctive relief and with regard to any action arising out of any\nbreach or alleged breach of this Agreement. Employee waives personal service of any and all process upon Employee and consents that all such\nservice of process may be made by certified or registered mail directed to Employee at the address stated in the signature section of this\nAgreement, with service so made deemed to be completed upon actual receipt thereof. Employee waives any objection to jurisdiction and venue\nof any action instituted against Employee as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue.\nEmployee further agrees that any action arising out of this Agreement or the relationship between the parties established herein shall be brought\nonly in courts of competent jurisdiction in Lee County, Florida or the United States District Court for the Southern District of Florida.\n18. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by\nEmployee. This Agreement shall inure to the benefit of Company’s successors.\n19. Entire Agreement. This Agreement is the entire agreement of the Parties with regard to the\n9\nmatters addressed herein, and supersedes all prior negotiations, preliminary agreements, and all prior and contemporaneous discussions and\nunderstandings of the signatories in connection with the subject matter of this Agreement, except however, that this Agreement shall be read in\npari materia with the Employment Agreement executed by Employee. This Agreement may be modified only by written instrument signed by\nthe Company and Employee.\n20. Severability. In case any one or more provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable\nin any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as\nif such invalid, illegal were unenforceable provision had not been contained herein.\n21. Waiver. The waiver by the Company of a breach or threatened breach of this Agreement by Employee cannot be construed as a waiver of\nany subsequent breach by Employee unless such waiver so provides by its terms. The refusal or failure of the Company to enforce any specific\nrestrictive covenant in this Agreement against Employee, or any other person for any reason, shall not constitute a defense to the enforcement by\nthe Company of any other restrictive covenant provision set forth in this Agreement.\n22. Consideration. Employee expressly acknowledges and agrees that the execution by the Company of the Employment Agreement with the\nEmployee constitutes full, adequate and sufficient consideration to Employee for the covenants of Employee under this Agreement.\n23. Notices . All notices required by this Agreement shall be in writing, shall be personally delivered or sent by U.S. Registered or Certified\nMail, return receipt requested, and shall be addressed to the signatories at the addresses shown on the signature page of this Agreement.\n24. Acknowledgements. Employee acknowledge(s) that he or she has reviewed this Agreement prior to signing it, that he or she knows and\nunderstands the contents, purposes and effect of this Agreement, and that he or she has been given a signed copy of this Agreement for his or her\nrecords. Employee further acknowledges and agrees that he or she has entered into this Agreement freely, without any duress or coercion.\n25. Captions. Captions to paragraphs and sections of this Agreement have been included solely for the sake of convenient reference and are\nentirely without substantive effect.\n26. Counterparts. This Agreement may be executed in counterparts, by facsimile or Adobe Acrobat pdf file each of which shall be deemed an\noriginal for all intents and purposes.\n[Signatures Appear on the Following Page]\n10\nIN WITNESS WHEREOF, THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND KNOW\nAND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY AGREE TO BE BOUND AND ABIDE BY THE\nREPRESENTATIONS, COVENANTS, PROMISES AND WARRANTIES CONTAINED HEREIN.\nBy: /s/ Robert J. Shovlin\n09/18/14\nEmployee Signature\nDate\nEmployee Name:\nRobert J. Shovlin\nEmployee Address: 15 Pine Tree Road\nRamsey, NJ 07446\nNeoGenomics Laboratories, Inc.\n12701 Commonwealth Drive, Suite #5\nFort Myers, FL 33913\nBy: /s/ Douglas VanOort\n09/16/14\nDate\nName: Douglas VanOort\nTitle: Chairman and CEO\n11	EX-10.2 3 d799884dex102.htm CONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETE AGREEMENT\nEXHIBIT 10.2\nCONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETE AGREEMENT\nThis Confidentiality, Non-Solicitation and Non-Compete Agreement (the “Agreement”) dated this 18th day of September, 2014 is entered\ninto by and between Robert J. Shovlin (“Employee”) and NeoGenomics, Inc., a Nevada corporation (“Employer” or the (“Parent Company”)\nand collectively with NeoGenomics Laboratories, Inc., a Florida corporation and any entity that is wholly or partially owned by the Parent\nCompany or otherwise affiliated with the Parent Company, the “Company”). Hereinafter, each of the Employee or the Company maybe referred\nto as a “Party” and together be referred to as the “Parties”.\nRECITALS:\nWHEREAS, the Parties have entered into that certain Employment Agreement, of even dated herewith, that creates an employment\nrelationship between the Employer and Employee (the “Employment Agreement”); and\nWHEREAS, pursuant to the Employment Agreement, the Employee agreed to enter into the Company’s Confidentiality, Non-Solicitation\nand Non-Compete Agreement; and\nWHEREAS, the Company desires to protect and preserve its Confidential Information and its legitimate business interests by having the\nEmployee enter into this Agreement as part of the Employment Agreement; and\nWHEREAS, the Employee desires to establish and maintain an employment relationship with the Company and as part of such\nemployment relationship desires to enter into this Agreement with the Company; and\nWHEREAS, the Employee acknowledges that the terms of the Employment Agreement including, but not limited to the Company’s\ncommitments to the Employee with respect to base salary, fringe benefits and stock options are sufficient consideration to the Employee for the\nentry into this Agreement.\nWHEREAS, the Employee acknowledges that substantial cost and expense has been or will be incurred by the Company for Employee’s\ntraining, and Employee’s training and employment have caused, or will require, the disclosure of certain Company confidential and proprietary\ninformation, trade secrets and customer and supplier relationships.\nNOW, THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and\nsufficiency of which are hereby acknowledged, the Parties agree as follows:\n1. Term. Employee agrees that all of the provisions of this Agreement except for Sections 7 and 8 hereof shall be effective as of the date of this\nAgreement. The Company and the Employee agree that Sections 7 and 8 hereof will not become effective until the Employee’s first day of\nemployment with the Company. Employee agrees that the term of this Agreement (“Term”) shall be as follows: (i) in the event that Employee\ndoes not actually become an employee of the Company as contemplated by the Employment Agreement, then the Term shall be for a period of\ntwo (2) years from the date of this Agreement, or (ii) in the event Employee does become an employee of the Company, then the term of this\nAgreement shall survive and continue to be in force and effect for two years following the termination of any employment\n1\nrelationship between the Parties, whether termination is by the Company with or without cause, wrongful discharge, or for any other reason\nwhatsoever, or by the Employee unless an exception is specifically provided in certain situations in any such Restrictive Covenants.\n2. Definitions.\na. The term “Confidential Information” as used herein shall include all business practices, methods, techniques, or processes that:\n(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper\nmeans by, other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the\ncircumstances to maintain its secrecy. Confidential Information also includes, but is not limited to, files, letters, memoranda, reports, records,\ncomputer disks or other computer storage medium, data, models or any photographic or other tangible materials containing such information,\nCustomer lists and names and other information, Customer contracts, other corporate contracts, computer programs, proprietary technical\ninformation and/or strategies, sales, promotional or marketing plans or strategies, programs, techniques, practices, any expansion plans\n(including existing and entry into new geographic and/or product markets), pricing information, product or service offering specifications or\nplans thereof, business plans, financial information and other financial plans, data pertaining to the Company’s operating performance, employee\nlists, salary information, Personal Information, Protected Health Information, all information the Company receives from customers or other third\nparties that is not generally known to the public or is subject to a confidentiality agreement, training manuals, and other materials and business\ninformation of a similar nature, including information about the Company itself or any affiliated entity, which Employee acknowledges and\nagrees has been compiled by the Company’s expenditure of a great amount of time, money and effort, and that contains detailed information that\ncould not be created independently from public sources. Further, all data, spreadsheets, reports, records, know-how, verbal communication,\nproprietary and technical information and/or other confidential materials of similar kind transmitted by the Company to Employee or developed\nby the Employee on behalf of the Company as Work Product (as defined in Paragraph 7) are expressly included within the definition of\n“Confidential Information.” The Parties further agree that the fact the Company may be seeking to complete a business transaction is\n“Confidential Information” within the meaning of this Agreement, as well as all notes, analysis, work product or other material derived from\nConfidential Information. Nevertheless, Confidential Information shall not include any information of any kind which (1) is in the possession of\nthe Employee prior to the date of this Agreement, as shown by the Employee’s files and records, or (2) prior or after the time of disclosure\nbecomes part of the public knowledge or literature, not as a result of any violation of this Agreement, any violation of any similar agreement with\nany other party or inaction or action of the receiving party, or (3) is rightfully received from a third party without any obligation of\nconfidentiality; or (4) independently developed after termination without reference to the Confidential Information or materials based thereon; or\n(5) is disclosed pursuant to the order or requirement of a court, administrative agency, or other government body; or (6) is approved for release\nby the non-disclosing party.\nb. The term “Personal Information” (“PI”) is Confidential Information and includes, but is not limited to, an individual’s first name and\nlast name or first initial and last name in combination with any of the following: an individual’s social security number, tax [.D. number, social\ninsurance number, driver’s license number, state issued identification card number, financial information, healthcare information, or credit or\ndebit card number.\nc. The term “Protected Health Information” (“PHI”) is Confidential Information and includes information that is created, received,\nand/or maintained by the Company related to an individual’s health care (or payment related to health care) that directly or indirectly identifies\nthe individual.\nd. The term “Customer” shall mean any person or entity which has purchased or ordered goods, products or services from the Company\nand/or entered into any contract for products or services with the Company within the one (1) year immediately preceding the termination of the\nEmployee’s employment with the Company.\ne. The term “Prospective Customer” shall mean any person or entity which has evidenced an intention to order products or services with\nthe Company within one year immediately preceding the termination of the Employee’s employment with the Company.\nf. The term “Restricted Area” shall include any geographical location anywhere in the United States. If the Restricted Area specified in\nthis Agreement should be judged unreasonable in any proceeding, then the Restricted Area shall be reduced so that the restrictions may be\nenforced as is judged to be reasonable.\ng. The phrase “directly or indirectly” shall include the Employee either on his/her own account, or as a partner, owner, promoter, joint\nventurer, employee, agent, consultant, advisor, manager, executive, independent contractor, officer, director, or a stockholder of 5% or more of\nthe voting shares of an entity in the Business of Company.\nh. The term “Business” shall mean the business of providing non-academic, for-profit cancer genetic and molecular laboratory testing\nservices, including, but not limited to, cytogenetics, flow cytometry, fluorescence in-situ hybridization (“FISH”), morphological studies, and\nmolecular testing, to hematologists, oncologists, urologists, pathologists, hospitals and other medical reference laboratories.\n3. Duty of Confidentiality.\na. All Confidential Information is considered highly sensitive and strictly confidential. The Employee agrees that at all times during the\nterm of this Agreement and after the termination of employment with the Company for as long as such information remains non-public\ninformation, the Employee shall (i) hold in confidence and refrain from disclosing to any other party all Confidential Information, whether\nwritten or oral, tangible or intangible, concerning the Company and its business and operations unless such disclosure is accompanied by a non-\ndisclosure agreement executed by the Company with the party to whom such Confidential Information is provided, (ii) use the Confidential\nInformation solely in connection with his or her employment with the Company and for no other purpose, (iii) take all reasonable precautions\nnecessary to ensure that the Confidential Information shall not be, or be permitted to be, shown, copied or disclosed to third parties, without the\nprior written consent of the Company, (iv) observe all security policies implemented by the Company from time to time with respect to the\nConfidential Information, and (v) not use or disclose, directly or indirectly, as an individual or as a partner, joint venturer, employee, agent,\nsalesman, contractor, officer, director or otherwise, for the benefit of himself or herself or any other person, partnership, firm, corporation,\nassociation or other legal entity, any Confidential Information, unless expressly permitted by this Agreement. Employee agrees that protection of\nthe Company’s Confidential Information constitutes a legitimate business interest justifying the restrictive covenants contained herein. Employee\nfurther agrees that the restrictive covenants contained herein are reasonably necessary to protect the Company’s legitimate business interest in\npreserving its Confidential Information. In addition, Employee will not view or access any PI or PHI unless required by the Company in the\ncourse Employee’s job duties and responsibilities for the Company and then only when authorized by the Company to do so. Employee\nacknowledges that he/she shall bear all costs, losses and damages resulting from any intentional breach of this paragraph, to the fullest extent\npermitted by applicable law.\nb. In the event that the Employee is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding or\notherwise, such disclosure shall be limited to the narrowest disclosure so required and, except to the extent prohibited by law, Employee shall\ngive the Company at least two (2) weeks’ notice, if practicable, of the basis for any such compelled disclosure of Confidential Information and\nshall reasonably cooperate with the Company in limiting disclosure and obtaining suitable confidentiality protections.\nc. Employee acknowledge(s) that this “Confidential Information” is of value to the Company by providing it with a competitive advantage\nover their competitors, is not generally known to competitors of the Company, and is not intended by the Company for general dissemination.\nEmployee acknowledges that this “Confidential Information” derives independent economic value, actual or potential, from not being generally\nknown to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is\nthe subject of reasonable efforts to maintain its secrecy. Therefore, the Parties agree that all “Confidential Information” under this Agreement\nconstitutes “Trade Secrets” under Section 688.002 and Chapter 812 of the Florida Statutes.\n4. Limited Right of Disclosure. Except as otherwise permitted by this Agreement, Employee shall limit disclosure of pertinent Confidential\nInformation to Employee’s attorney, if any (“Representative(s)”), for the sole purpose of evaluating Employee’s relationship with the Company.\nParagraph 3 of this Agreement shall bind all such Representative(s).\n5. Return of Company Property and Confidential Materials. All tangible property, including cell phones, laptop computers and other\nCompany purchased property, as well as all Confidential Information, Customer and Prospective Customer information and property, provided to\nEmployee is the exclusive property of the Company and must be returned to the Company in accordance with the instructions of the Company\neither upon termination of the Employee’s employment or at such other time as is requested by the Company. Employee agree(s) that upon\ntermination of employment for any reason whatsoever Employee shall return all copies, in whatever form or media, including hard copies and\nelectronic copies, of Confidential Information to the Company, and Employee shall delete any copy of the Confidential Information on any\ncomputer file or database maintained by Employee and shall certify in writing that he/she has done so. In addition to returning all Confidential\nInformation to the Company as described above, Employee will destroy any analysis, notes, work product or other materials relating to or\nderived from the Confidential Information. Any retention of Confidential Information may constitute “civil theft” as such term is defined in\nChapter 772 of the Florida Statutes.\n6. Agreement Not To Circumvent. Employee agrees not to pursue any transaction or business relationship that is directly competitive to the\nBusiness of the Company that makes use of any Confidential Information during the Term of this Agreement, other than through the Company or\non behalf of the Company. It is further understood and agreed that, after the Employee’s employment with the Company has been terminated, the\nEmployee will direct all communications and requests from any third parties regarding Confidential Information or Business opportunities which\nuse Confidential Information through the Company’s then chief executive officer or president. Employee acknowledges that any violation of this\ncovenant may subject Employee to the remedies identified in Paragraph 9 in addition to any other available remedies.\n7. Title to Work Product. Employee agrees that all work products (including strategies and testing methodologies for competing in the genetics\ntesting industry, technical materials and diagrams, computer programs, financial plans and other written materials, websites, presentation\nmaterials, course materials, advertising campaigns, slogans, videos, pictures and other materials) created or developed by the Employee for the\nCompany during the term of the Employee’s employment with the Company or any successor to the Company until the date of termination of the\nEmployee (collectively, the “Weork Product”), shall be considered a work made for hire and that the Company shall be the sole owner of all\nrights, including copyright, in and to the Work Product.\nIf the Work Product, or any part thereof, does not qualify as a work made for hire, the Employee agrees to assign, and hereby assigns, to the\nCompany for the full term of the copyright and all extensions thereof all of its right, title and interest in and to the Work Product. All discoveries,\ninventions, innovations, works of authorship, computer programs, improvements and ideas, whether or not patentable or copyrightable or\notherwise protectable, conceived, completed, reduced to practice or otherwise produced by the Employee in the course of his or her services to\nthe Company in connection with or in any way relating to the Business of the Company or capable of being used or adapted for use therein or in\nconnection therewith shall forthwith be disclosed to the Company and shall belong to and be the absolute property of the Company unless\nassigned by the Company to another entity.\nEmployee hereby assigns to the Company all right, title and interest in all of the discoveries, inventions, innovations, works of authorship,\ncomputer programs, improvements, ideas and other work product; all copyrights, trade secrets, and trademarks in the same; and all patent\napplications filed and patents granted worldwide on any of the same for any work previously completed on behalf of the Company or work\nperformed under the terms of this Agreement or the Employment Agreement. Employee, if and whenever required to do so (whether during or\nafter the termination of his or her employment), shall at the expense of the Company apply or join in applying for copyrights, patents or\ntrademarks or other equivalent protection in the United States or in other parts of the world for any such discovery, invention, innovation, work\nof authorship, computer program, improvement, and idea as aforesaid and execute, deliver and perform all instruments and things necessary for\nvesting such patents, trademarks, copyrights or equivalent protections when obtained and all right, title and interest to and in the same in the\nCompany absolutely and as sole beneficial owner, unless assigned by the Company to another entity. Notwithstanding the foregoing, work\nproduct conceived by the Employee, which is not related to the Business of the Company, will remain the property of the Employee.\n8. Restrictive Covenant. The Company and its affiliated entities are engaged in the Business of providing genetic and molecular testing\nservices. The covenants contained in this Paragraph 8 (the “Restrictive Covenants”) are given and made by Employee to induce the Company to\nemploy Employee under the terms of the Employment Agreement, and Employee acknowledges sufficiency of consideration for these Restrictive\nCovenants. Employee expressly covenants and agrees that, during his or her employment and for a period of two (2) years following termination\nof such employment (such period of time is hereinafter referred to as the “Restrictive Period”), he/she will abide by the following restrictive\ncovenants unless an exception is specifically provided, in writing signed by Company, in certain situations in such Restrictive Covenants.\nNotwithstanding the forgoing, the Company agrees that the Restrictive Period of the Non-Competition Covenant described in paragraph 8(b)\nbelow shall be reduced to one year in the event that the Company consummates a change of control within the first year of the Employee’s\nemployment with the Company and the Employee is terminated without “Cause” (as such term is defined in the Employment Agreement) within\nninety (90) days of the effective date of such change of control.\na.  Non-Solicitation. Employee agrees and acknowledges that, during the Restrictive Period, he/she will not, directly or indirectly, in\none or a series of transactions, as an individual or as a partner, joint venturer, employee, agent, salesperson, contractor, officer,\ndirector or otherwise, for the benefit of himself or herself or any other person, partnership, firm, corporation, association or other\nlegal entity:\n@) solicit or induce, or attempt to solicit or induce, any Customer or Prospective Customer of the Company to patronize or do\nbusiness with any other company (or business) that is in the Business conducted by the Company in the Restricted Area; or\n(i)  request or advise any Customer, supplier or vendor, or any Prospective Customer, prospective supplier or prospective vendor,\nof the Company, who was a Customer, Prospective Customer, supplier, prospective supplier, vendor or prospective vendor\nwithin one year immediately preceding the termination of the Employee’s employment with the Company, to withdraw,\ncurtail, cancel or refrain from doing business with the Company in any capacity; or\n(iii) manage, operate, be connected with, employed by, sell goods to, or perform services for, or on behalf of, in any manner, any\nCustomer, or Prospective Customer, of the Company either myself or on behalf of any other entity that may employ, engage or\nassociate with me in any fashion.\n(iv)  recruit, solicit or otherwise induce any proprietor, partner, stockholder, lender, director, officer, employee, sales agent, joint\nventurer, investor, lessor, supplier, Customer, agent, representative or any other person which has a business relationship with\nthe Company or any Affiliated Entity to discontinue, reduce or detrimentally modify such employment, agency or business\nrelationship with the Company; or\n(v)  employ or solicit, or attempt to employ or solicit, for employment any person or agent who is then (or was at any time within\ntwelve (12) months prior to the date Employee or any entity related to Employee seeks to employ such person) employed or\nretained by the Company. Notwithstanding the forgoing, to the extent the Employee works for a larger firm or corporation\nafter his or her termination from the Company and he or she does not have any personal knowledge and/or control over the\nsolicitation of or the employment of a Company employee or agent, then this provision shall not be enforceable as it relates to\nthat employee.\nNon-Competition. Employee agrees and acknowledges that, during the Restrictive Period, he or she will not, directly or indirectly,\nfor himself , or on behalf of others, as an individual on Employee’s own account, or as a partner, joint venturer, employee, agent,\nsalesman, contractor, officer, director or otherwise, for him/herself or any other person, partnership, firm, corporation, association or\nother legal entity, enter into, engage in, accept employment from, or provide any services to, or for, any business that is in the\nBusiness of the Company, or engage in any activity that is competitive with the Company, in the Restricted Area. The parties agree\nthat this non-competition provision is intended to cover situations where a future business opportunity in which the Employee is\nengaged or a future employer of the Employee is selling the same or similar products and services in a Business which may compete\nwith the Company’s products and services to Customers and Prospective Customers of the Company in the Restricted Area. This\nprovision shall not cover future business opportunities or employers of the Employee that sell different types of products or services\nin the Restricted Area so long as such future business opportunities or employers are not in the Business of the Company.\n \nNotwithstanding the preceding paragraphs, the spirit and intent of this non-competition clause is not to deny the Employee the ability\nto support his or her family, but rather to prevent the Employee from using the knowledge and experiences obtained from the\nCompany in a similar competitive environment. Along those lines, should the Employee leave the employment of the Employer for\nany reason, he or she would be prohibited from joining a for-profit cancer testing\n6\ngenetics laboratory and/or company in the Business of the Company in the Restricted Area. The Parties agree that all non-profit\nmedical testing laboratories, hospitals and academic institutions as well as for-profit prenatal and pediatric/constitutional genetic\ntesting laboratories are excluded from the restrictions in paragraph 8(b). In other words, the Employee would be allowed under this\nnon-compete clause to work in any non-profit cancer genetics testing laboratory (e.g., in academia) as well as in a private, for-profit\nprenatal laboratory or pediatric/constitutional genetics testing laboratory. Thus, the spirit and intent of this non-competition clause is\nintended to prevent the Employee from acting in any of the capacities outlined in this paragraph for any “for-profit” cancer genetics\ntesting laboratories that do the type of any one or more of the types of testing defined in the definition of Business in the Restricted\nArea.\n9. Acknowledgements of Employee. d. The Employee understands and acknowledges that any violation of this Agreement shall constitute a material breach of this\nAgreement and the Employment Agreement, and it will cause irreparable harm and loss to the Company for which monetary\ndamages will be an insufficient remedy. Therefore, the Parties agree that in addition to any other remedies available, the Company\nwill be entitled to the relief identified in Paragraph No. 10 below.\nThe Restrictive Covenants shall be construed as agreements independent of any other provision in this Agreement and the existence\nof any claim or cause of action of Employee against the Company shall not constitute a defense to the enforcement of these\nRestrictive Covenants.\nEmployee agrees that the Restrictive Covenants are reasonably necessary to protect the legitimate business interests of the Company.\nEmployee agrees that this Agreement may be enforced by the Company’s successor in interest by way of merger, business\ncombination or consolidation where a majority of the surviving entity is not owned by Company’s shareholders who owned a\nmajority of the Company’s voting shares prior to such transaction and Employee acknowledges and agrees that successors are\nintended beneficiaries of this Agreement.\nEmployee agrees that if any portion of the Restrictive Covenants is held by a court of competent jurisdiction to be unreasonable,\narbitrary or against public policy for any reason, such shall be modified accordingly as to time, geographic area and line of business\nso as to be enforceable to the fullest extent possible as to time, area and line of business.\nEmployee acknowledges that any violations of the Agreement will be a material breach of this Agreement and may subject the\nEmployee, and/or any individual(s), partnership, corporation, joint venture or other type of business with whom the Employee is then\naffiliated or employed, to monetary and other damages.\nEmployee agrees that any failure of the Company to enforce the Restrictive Covenants against any other employee, for any reason,\nshall not constitute a defense to enforcement of the Restrictive Covenants against the Employee.\n10. Specific Performance; Injunction. The Parties agree and acknowledge that the restrictions contained in Paragraphs 1-8 are reasonable in scope and duration and are necessary to protect the Company. If any provision of Paragraphs 1-8 as applied to any party or to any circumstance is judged by a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the 7\nvalidity or enforceability of any other provision of this Agreement. If any such provision, or any part thereof, is held to be unenforceable because\nof the duration of such provision or the area covered thereby, the court making such determination shall have the power to reduce the duration\nand/or area of such provision, and/or to delete specific words or phrases, and in its reduced form, such provision shall then be enforceable and\nshall be enforced.\nAny unauthorized use or disclosure of Confidential Information in violation of Paragraphs 2-7 above or violation of the Restrictive\nCovenant in Paragraph 8 shall constitute a material breach of this Agreement and will cause irreparable harm and loss to the Company for which\nmonetary damages may be an insufficient remedy. Therefore, in addition to any other remedy available, the Company will be entitled to all\navailable civil remedies, including:\na.  Temporary and permanent injunctive relief, without the necessity of posting a bond, restraining Employee or Representatives and any\nother person, partnership, firm, corporation, association or other legal entity acting in concert with Employee from any actual or\nthreatened unauthorized disclosure or use of Confidential Information, in whole or in part, or from rendering any service to any other\nperson, partnership, firm, corporation, association or other legal entity to whom such Confidential Information in whole or in part,\nhas been disclosed or used or is threatened to be disclosed or used; and\nb.  Temporary and permanent injunctive relief, without the necessity of posting a bond, restraining the Employee from violating, directly\nor indirectly, the restrictions of the Restrictive Covenant in any capacity identified in Paragraph 8, supra, and restricting third parties\nfrom aiding and abetting any violations of the Restrictive Covenant; and\nc.  Compensatory damages, including actual loss from misappropriation and unjust enrichment, and any and all legal fees, including\nwithout limitation, all attorneys’ fees, court costs, and any other related fees and/or costs incurred by the Company in enforcing this\nAgreement.\nNotwithstanding the forgoing, the Company acknowledges and agrees that the Employee will not be liable for the payment of any damages\nor fees owed to the Company through the operation of Paragraph 10c above, unless and until a court of competent jurisdiction has determined\nthat the Company or any successor is entitled to such recovery.\nNothing in this Agreement shall be construed as prohibiting the Company from pursuing any other legal or equitable remedies available to\nit for actual or threatened breach of the provisions of Paragraphs 1 — 8 of this Agreement, and the existence of any claim or cause of action by\nEmployee against the Company shall not constitute a defense to the enforcement by the Company of any of the provisions of this Agreement.\nThe Company and its Affiliated Entities have fully performed all obligations entitling it to the covenants of Paragraphs 1 — 8 of this Agreement\nand therefore such prohibitions are not executory or otherwise subject to rejection under the bankruptcy code.\nin the protection of its Confidential Information. Employee also recognizes and agrees that the Company has the right to such information as is\nreasonably necessary to inform the Company whether the terms of this Agreement are being complied with. Accordingly, Employee agrees that\nEmployee will promptly notify any new employer of his/her obligations contained here. Employee also will provide the Company with the\nidentity of his/her new employer(s) and a description of the services being provided by him/her in sufficient detail to allow the Company to\nreasonably determine whether such activities fall within the scope of activities prohibited by the provisions of this Agreement\n8\n12. Representations as to Prior or Other Agreements. Employee represents and warrants that he/she is able to perform the contemplated\nduties of employment without being in breach of confidentiality agreements or disclosing proprietary information of any third party, and that no\nproprietary information of any third party shall be disclosed to the Company. Employee further represents and warrants that he/she is not\nprohibited from entering into this Agreement or performing services under it by any non-competition, non-solicitation, anti-piracy agreement,\nrelationship agreement, or any other restrictions. Employee agrees to indemnify and hold the Company harmless from all claims or causes of\naction by any person or entity against the Company arising out of any alleged breach by Employee of any such agreement or any other\nrestrictions inconsistent with the foregoing representations.\nvideo tape recordings, for purposes relating to its business without a specific release from Employee.\n14. Termination. Employee agrees to bring any claims that he/she may have against the Company within three hundred (300) days of the day\nthat Employee knew, or should have known, of the facts giving rise to the cause of action and waives any longer, but not shorter, statutory or\nother limitations periods. This includes, but is not limited to, the initial filing of a charge with the Equal Employment Opportunity Commission\nand/or state equivalent civil rights agency. However, Employee understands that he/she will thereafter have the right to pursue any federal claim\nin the manner prescribed in any right to sue letter that is issued by an agency.\n15. Nondisparagement. Employee shall not make any disparaging or defamatory comments about the Company, whether true or not, except to\ncomply with any summons, court order or subpoena.\n16. Waiver of Jury Trial. THE COMPANY AND EMPLOYEE EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION\nOR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY INSTRUMENT,\nDOCUMENT OR AGREEMENT DELIVERED IN CONNECTION HEREWITH OR HEREAFTER OR RELATED IN ANY\nFASHION TO EMPLOYEE’S EMPLOYMENT WITH COMPANY.\n17. Governing L.aw, Venue and Personal Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the\nlaws of state of Florida without regard to any statutory or common-law provision pertaining to conflicts of laws. The parties agree that courts of\ncompetent jurisdiction in Lee County, Florida and the United States District Court for the Southern District of Florida shall have concurrent\njurisdiction for purposes of entering temporary, preliminary and permanent injunctive relief and with regard to any action arising out of any\nbreach or alleged breach of this Agreement. Employee waives personal service of any and all process upon Employee and consents that all such\nservice of process may be made by certified or registered mail directed to Employee at the address stated in the signature section of this\nAgreement, with service so made deemed to be completed upon actual receipt thereof. Employee waives any objection to jurisdiction and venue\nof any action instituted against Employee as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue.\nEmployee further agrees that any action arising out of this Agreement or the relationship between the parties established herein shall be brought\nonly in courts of competent jurisdiction in Lee County, Florida or the United States District Court for the Southern District of Florida.\n18. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by\nEmployee. This Agreement shall inure to the benefit of Company’s successors.\n19. Entire Agreement. This Agreement is the entire agreement of the Parties with regard to the\n9\nmatters addressed herein, and supersedes all prior negotiations, preliminary agreements, and all prior and contemporaneous discussions and\nunderstandings of the signatories in connection with the subject matter of this Agreement, except however, that this Agreement shall be read in\npari materia with the Employment Agreement executed by Employee. This Agreement may be modified only by written instrument signed by\nthe Company and Employee.\n20. Severability. In case any one or more provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable\nin any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as\nif such invalid, illegal were unenforceable provision had not been contained herein.\n21. Waiver. The waiver by the Company of a breach or threatened breach of this Agreement by Employee cannot be construed as a waiver of\nany subsequent breach by Employee unless such waiver so provides by its terms. The refusal or failure of the Company to enforce any specific\nrestrictive covenant in this Agreement against Employee, or any other person for any reason, shall not constitute a defense to the enforcement by\nthe Company of any other restrictive covenant provision set forth in this Agreement.\n22. Consideration. Employee expressly acknowledges and agrees that the execution by the Company of the Employment Agreement with the\nEmployee constitutes full, adequate and sufficient consideration to Employee for the covenants of Employee under this Agreement.\n23. Notices . All notices required by this Agreement shall be in writing, shall be personally delivered or sent by U.S. Registered or Certified\nMail, return receipt requested, and shall be addressed to the signatories at the addresses shown on the signature page of this Agreement.\n24. Acknowledgements. Employee acknowledge(s) that he or she has reviewed this Agreement prior to signing it, that he or she knows and\nunderstands the contents, purposes and effect of this Agreement, and that he or she has been given a signed copy of this Agreement for his or her\nrecords. Employee further acknowledges and agrees that he or she has entered into this Agreement freely, without any duress or coercion.\n25. Captions. Captions to paragraphs and sections of this Agreement have been included solely for the sake of convenient reference and are\nentirely without substantive effect.\n26. Counterparts. This Agreement may be executed in counterparts, by facsimile or Adobe Acrobat pdf file each of which shall be deemed an\noriginal for all intents and purposes.\n[Signatures Appear on the Following Page]\n10\nIN WITNESS WHEREOF, THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND KNOW\nAND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY AGREE TO BE BOUND AND ABIDE BY THE\nREPRESENTATIONS, COVENANTS, PROMISES AND WARRANTIES CONTAINED HEREIN.\nBy: /s/ Robert J. Shovlin 09/18/14\nEmployee Signature Date\nEmployee Name: Robert J. Shovlin\nEmployee Address: 15 Pine Tree Road\nRamsey, NJ 07446\nNeoGenomics Laboratories, Inc.\n12701 Commonwealth Drive, Suite #5\nFort Myers, FL 33913\nBy: /s/ Douglas VanOort 09/16/14\nDate\nName: Douglas VanOort\nTitle: Chairman and CEO\n11	EX-10.2 3 d799884dex102.htm CONFIDENTIALITY NON-SOLICITATION AND NON-COMPETE AGREEMENT\nEXHIBIT 10.2\nCONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETE AGREEMENT\nThis Confidentiality, Non-Solicitation and Non-Compete Agreement (the "Agreement") dated this 18th day of September, 2014 is entered\ninto by and between Robert J. Shovlin ("Employee") and NeoGenomics, Inc., a Nevada corporation ("Employer" or the ("Parent Company")\nand collectively with NeoGenomics Laboratories, Inc., a Florida corporation and any entity that is wholly or partially owned by the Parent\nCompany or otherwise affiliated with the Parent Company, the "Company."). Hereinafter, each of the Employee or the Company maybe referred\nto as a "Party." and together be referred to as the "Parties".\nRECITALS:\nWHEREAS, the Parties have entered into that certain Employment Agreement, of even dated herewith, that creates an employment\nrelationship between the Employer and Employee (the "Employment Agreement"); and\nWHEREAS, pursuant to the Employment Agreement, the Employee agreed to enter into the Company's Confidentiality, Non-Solicitation\nand Non-Compete Agreement; and\nWHEREAS, the Company desires to protect and preserve its Confidential Information and its legitimate business interests by having the\nEmployee enter into this Agreement as part of the Employment Agreement; and\nWHEREAS, the Employee desires to establish and maintain an employment relationship with the Company and as part of such\nemployment relationship desires to enter into this Agreement with the Company; and\nWHEREAS, the Employee acknowledges that the terms of the Employment Agreement including, but not limited to the Company's\ncommitments to the Employee with respect to base salary, fringe benefits and stock options are sufficient consideration to the Employee for the\nentry into this Agreement.\nWHEREAS, the Employee acknowledges that substantial cost and expense has been or will be incurred by the Company for Employee's\ntraining, and Employee's training and employment have caused, or will require, the disclosure of certain Company confidential and\nproprietary\ninformation, trade secrets and customer and supplier relationships.\nNOW, THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and\nsufficiency of which are hereby acknowledged, the Parties agree as follows:\n1. Term. Employee agrees that all of the provisions of this Agreement except for Sections 7 and 8 hereof shall be effective as of the date of this\nAgreement. The Company and the Employee agree that Sections 7 and 8 hereof will not become effective until the Employee's first day of\nemployment with the Company. Employee agrees that the term of this Agreement ("Term") shall be as follows: (i) in the event that Employee\ndoes not actually become an employee of the Company as contemplated by the Employment Agreement, then the Term shall be for a period\nof\ntwo (2) years from the date of this Agreement, or (ii) in the event Employee does become an employee of the Company, then the term of this\nAgreement shall survive and continue to be in force and effect for two years following the termination of any employment\n1\nrelationship between the Parties, whether termination is by the Company with or without cause, wrongful discharge, or for any other reason\nwhatsoever, or by the Employee unless an exception is specifically provided in certain situations in any such Restrictive Covenants.\n2. Definitions.\na. The term "Confidential Information" as used herein shall include all business practices, methods, techniques, or processes that:\n(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper\nmeans by, other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the\ncircumstances to maintain its secrecy. Confidential Information also includes, but is not limited to, files, letters, memoranda, reports, records,\ncomputer disks or other computer storage medium, data, models or any photographic or other tangible materials containing such information,\nCustomer lists and names and other information, Customer contracts, other corporate contracts, computer programs, proprietary technical\ninformation and/or strategies, sales, promotional or marketing plans or strategies, programs, techniques, practices, any expansion plans\n(including existing and entry into new geographic and/or product markets), pricing information, product or service offering specifications\nor\nplans thereof, business plans, financial information and other financial plans, data pertaining to the Company's operating performance, employee\nlists, salary information, Personal Information, Protected Health Information, all information the Company receives from customers or other third\nparties that is not generally known to the public or is subject to a confidentiality agreement, training manuals, and other materials and business\ninformation of a similar nature, including information about the Company itself or any affiliated entity, which Employee acknowledges and\nagrees has been compiled by the Company's expenditure of a great amount of time, money and effort, and that contains detailed information that\ncould not be created independently from public sources. Further, all data, spreadsheets, reports, records, know-how, verbal communication,\nproprietary and technical information and/or other confidential materials of similar kind transmitted by the Company to Employee or developed\nby the Employee on behalf of the Company as Work Product (as defined in Paragraph 7) are expressly included within the definition of\n"Confidential Information." The Parties further agree that the fact the Company may be seeking to complete a business transaction is\n"Confidential Information" within the meaning of this Agreement, as well as all notes, analysis, work product or other material derived from\nConfidential Information. Nevertheless, Confidential Information shall not include any information of any kind which (1) is in the possession of\nthe Employee prior to the date of this Agreement, as shown by the Employee's files and records, or (2) prior or after the time of disclosure\nbecomes part of the public knowledge or literature, not as a result of any violation of this Agreement, any violation of any similar agreement\nwith\nany other party or inaction or action of the receiving party, or (3) is rightfully received from a third party without any obligation of\nconfidentiality; or (4) independently developed after termination without reference to the Confidential Information or materials based thereon; or\n(5) is disclosed pursuant to the order or requirement of a court, administrative agency, or other government body; or (6) is approved for release\nby the non-disclosing party.\nb. The term "Personal Information" ("PI") is Confidential Information and includes, but is not limited to, an individual's first name and\nlast name or first initial and last name in combination with any of the following: an individual's social security number, tax I.D. number, social\ninsurance number, driver's license number, state issued identification card number, financial information, healthcare information, or credit or\ndebit card number.\nC. The term "Protected Health Information" ("PHI") is Confidential Information and includes information that is created, received,\nand/or maintained by the Company related to an individual's health care (or payment related to health care) that directly or indirectly identifies\nthe individual.\n2\nd. The term "Customer" shall mean any person or entity which has purchased or ordered goods, products or services from the Company\nand/or entered into any contract for products or services with the Company within the one (1) year immediately preceding the termination of the\nEmployee's employment with the Company.\ne. The term "Prospective Customer' shall mean any person or entity which has evidenced an intention to order products or services with\nthe Company within one year immediately preceding the termination of the Employee's employment with the Company.\nf. The term "Restricted Area" shall include any geographical location anywhere in the United States. If the Restricted Area specified in\nthis Agreement should be judged unreasonable in any proceeding, then the Restricted Area shall be reduced so that the restrictions may be\nenforced as is judged to be reasonable.\ng. The phrase "directly or indirectly." shall include the Employee either on his/her own account, or as a partner, owner, promoter, joint\nventurer, employee, agent, consultant, advisor, manager, executive, independent contractor, officer, director, or a stockholder of 5% or more of\nthe voting shares of an entity in the Business of Company.\nh. The term "Business" shall mean the business of providing non-academic, for-profit cancer genetic and molecular laboratory testing\nservices, including, but not limited to, cytogenetics, flow cytometry, fluorescence in-situ hybridization ("FISH"), morphological studies, and\nmolecular testing, to hematologists, oncologists, urologists, pathologists, hospitals and other medical reference laboratories.\n3. Duty. of Confidentiality.\na. All Confidential Information is considered highly sensitive and strictly confidential. The Employee agrees that at all times during the\nterm of this Agreement and after the termination of employment with the Company for as long as such information remains non-public\ninformation, the Employee shall (i) hold in confidence and refrain from disclosing to any other party all Confidential Information whether\nwritten or oral, tangible or intangible, concerning the Company and its business and operations unless such disclosure is accompanied by a non-\ndisclosure agreement executed by the Company with the party to whom such Confidential Information is provided, (ii) use the Confidential\nInformation solely in connection with his or her employment with the Company and for no other purpose, (iii) take all reasonable precautions\nnecessary to ensure that the Confidential Information shall not be, or be permitted to be, shown, copied or disclosed to third parties, without the\nprior\nwritten consent of the Company, (iv) observe all security policies implemented by the Company from time to time with respect to the\nConfidential Information, and (v) not use or disclose, directly or indirectly, as an individual or as a partner, joint venturer, employee, agent,\nsalesman, contractor, officer, director or otherwise, for the benefit of himself or herself or any other person, partnership, firm, corporation,\nassociation or other legal entity, any Confidential Information, unless expressly permitted by this Agreement. Employee agrees that protection of\nthe Company's Confidential Information constitutes a legitimate business interest justifying the restrictive covenants contained herein. Employee\nfurther agrees that the restrictive covenants contained herein are reasonably necessary to protect the Company's legitimate business interest\nin\npreserving its Confidential Information. In addition, Employee will not view or access any PI or PHI unless required by the Company in the\ncourse Employee's job duties and responsibilities for the Company and then only when authorized by the Company to do so. Employee\nacknowledges that he/she shall bear all costs, losses and damages resulting from any intentional breach of this paragraph, to the fullest extent\npermitted by applicable law.\n3\nb. In the event that the Employee is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding or\notherwise, such disclosure shall be limited to the narrowest disclosure so required and, except to the extent prohibited by law, Employee shall\ngive the Company at least two (2) weeks' notice, if practicable, of the basis for any such compelled disclosure of Confidentia Information and\nshall reasonably cooperate with the Company in limiting disclosure and obtaining suitable confidentiality protections.\nC. Employee acknowledge(s) that this "Confidential Information" is of value to the Company by providing it with a competitive advantage\nover their competitors, is not generally known to competitors of the Company, and is not intended by the Company for general dissemination.\nEmployee acknowledges that this "Confidential Information" derives independent economic value, actual or potential, from not being generally\nknown to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is\nthe subject of reasonable efforts to maintain its secrecy. Therefore, the Parties agree that all "Confidential Information" under this Agreement\nconstitutes "Trade Secrets" under Section 688.002 and Chapter 812 of the Florida Statutes.\n4. Limited Right of Disclosure. Except as otherwise permitted by this Agreement, Employee shall limit disclosure of pertinent Confidential\nInformation to Employee's attorney, if any ("Representative(s)"), for the sole purpose of evaluating Employee's relationship with the Company.\nParagraph 3 of this Agreement shall bind all such Representative(s).\n5. Return of Company Property and Confidential Materials. All tangible property, including cell phones, laptop computers and other\nCompany purchased property, as well as all Confidential Information, Customer and Prospective Customer information and property, provided\nto\nEmployee is the exclusive property of the Company and must be returned to the Company in accordance with the instructions of the Company\neither upon termination of the Employee's employment or at such other time as is requested by the Company. Employee agree(s) that upon\ntermination of employment for any reason whatsoever Employee shall return all copies, in whatever form or media, including hard copies and\nelectronic copies, of Confidential Information to the Company, and Employee shall delete any copy of the Confidential Information on any\ncomputer file or database maintained by Employee and shall certify in writing that he/she has done so. In addition to returning all Confidential\nInformation to the Company as described above, Employee will destroy any analysis, notes, work product or other materials relating to or\nderived from the Confidential Information. Any retention of Confidential Information may constitute "civil theft" as such term is defined\nin\nChapter 772 of the Florida Statutes.\n6. Agreement Not To Circumvent. Employee agrees not to pursue any transaction or business relationship that is directly competitive to the\nBusiness of the Company that makes use of any Confidential Information during the Term of this Agreement, other than through the Company or\non behalf of the Company. It is further understood and agreed that, after the Employee's employment with the Company has been terminated, the\nEmployee will direct all communications and requests from any third parties regarding Confidential Information or Business opportunities which\nuse Confidential Information through the Company's then chief executive officer or president. Employee acknowledges that any violation of this\ncovenant may subject Employee to the remedies identified in Paragraph 9 in addition to any other available remedies.\n7. Title to Work Product. Employee agrees that all work products (including strategies and testing methodologies for competing in the genetics\ntesting industry, technical materials and diagrams, computer programs, financial plans and other written materials, websites, presentation\nmaterials, course materials, advertising campaigns, slogans, videos, pictures and other materials) created or developed by the Employee for\nthe\nCompany during the term of the Employee's employment with the Company or any successor to the Company until the date of termination of the\nEmployee (collectively, the "Work Product"), shall be considered a work made for hire and that the Company shall be the sole owner of all\nrights, including copyright, in and to the Work Product.\n4\nIf the Work Product, or any part thereof, does not qualify as a work made for hire, the Employee agrees to assign, and hereby assigns, to the\nCompany for the full term of the copyright and all extensions thereof all of its right, title and interest in and to the Work Product. All discoveries,\ninventions, innovations, works of authorship, computer programs, improvements and ideas, whether or not patentable or copyrightable or\notherwise protectable, conceived, completed, reduced to practice or otherwise produced by the Employee in the course of his or her services to\nthe Company in connection with or in any way relating to the Business of the Company or capable of being used or adapted for use therein or in\nconnection therewith shall forthwith be disclosed to the Company and shall belong to and be the absolute property of the Company unless\nassigned by the Company to another entity.\nEmployee hereby assigns to the Company all right, title and interest in all of the discoveries, inventions, innovations, works of authorship,\ncomputer programs, improvements, ideas and other work product; all copyrights, trade secrets, and trademarks in the same; and all patent\napplications filed and patents granted worldwide on any of the same for any work previously completed on behalf of the Company or work\nperformed under the terms of this Agreement or the Employment Agreement. Employee, if and whenever required to do so (whether during\nor\nafter the termination of his or her employment), shall at the expense of the Company apply or join in applying for copyrights, patents or\ntrademarks or other equivalent protection in the United States or in other parts of the world for any such discovery, invention, innovation, work\nof authorship, computer program, improvement, and idea as aforesaid and execute, deliver and perform all instruments and things necessary for\nvesting such patents, trademarks, copyrights or equivalent protections when obtained and all right, title and interest to and in the same in the\nCompany absolutely and as sole beneficial owner, unless assigned by the Company to another entity. Notwithstanding the foregoing,\nwork\nproduct conceived by the Employee, which is not related to the Business of the Company, will remain the property of the Employee.\n8. Restrictive Covenant. The Company and its affiliated entities are engaged in the Business of providing genetic and molecular testing\nservices. The covenants contained in this Paragraph 8 (the "Restrictive Covenants") are given and made by Employee to induce the Company to\nemploy Employee under the terms of the Employment Agreement, and Employee acknowledges sufficiency of consideration for these Restrictive\nCovenants. Employee expressly covenants and agrees that, during his or her employment and for a period of two (2) years following termination\nof such employment (such period of time is hereinafter referred to as the "Restrictive Period"), he/she will abide by the following restrictive\ncovenants unless an exception is specifically provided, in writing signed by Company, in certain situations in such Restrictive Covenants.\nNotwithstanding the forgoing, the Company agrees that the Restrictive Period of the Non-Competition Covenant described in paragraph 8(b)\nbelow shall be reduced to one year in the event that the Company consummates a change of control within the first year of the Employee's\nemployment with the Company and the Employee is terminated without "Cause" (as such term is defined in the Employment Agreement) within\nninety (90) days of the effective date of such change of control.\na.\nNon-Solicitation. Employee agrees and acknowledges that, during the Restrictive Period, he/she will not, directly or indirectly, in\none or a series of transactions, as an individual or as a partner, joint venturer, employee, agent, salesperson, contractor, officer,\ndirector or otherwise, for the benefit of himself or herself or any other person, partnership, firm, corporation, association or other\nlegal entity:\n5\n(i)\nsolicit or induce, or attempt to solicit or induce, any Customer or Prospective Customer of the Company to patronize or do\nbusiness with any other company (or business) that is in the Business conducted by the Company in the Restricted Area; or\n(ii)\nrequest or advise any Customer, supplier or vendor, or any Prospective Customer, prospective supplier or prospective vendor,\nof the Company, who was a Customer, Prospective Customer, supplier, prospective supplier, vendor or prospective vendor\nwithin one year immediately preceding the termination of the Employee's employment with the Company, to withdraw,\ncurtail, cancel or refrain from doing business with the Company in any capacity; or\n(iii)\nmanage, operate, be connected with, employed by, sell goods to, or perform services for, or on behalf of, in any manner, any\nCustomer, or Prospective Customer, of the Company either myself or on behalf of any other entity that may employ, engage or\nassociate with me in any fashion.\n(iv)\nrecruit, solicit or otherwise induce any proprietor, partner, stockholder, lender, director, officer, employee, sales agent, joint\nventurer, investor, lessor, supplier, Customer agent, representative or any other person which has a business relationship with\nthe Company or any Affiliated Entity to discontinue, reduce or detrimentally modify such employment, agency or business\nrelationship with the Company; or\n(v)\nemploy or solicit, or attempt to employ or solicit, for employment any person or agent who is then (or was at any time within\ntwelve (12) months prior to the date Employee or any entity related to Employee seeks to employ such person) employed or\nretained by the Company. Notwithstanding the forgoing, to the extent the Employee works for a larger firm or corporation\nafter his or her termination from the Company and he or she does not have any personal knowledge and/or control over the\nsolicitation of or the employment of a Company employee or agent, then this provision shall not be enforceable as it relates to\nthat employee.\nb.\nNon-Competition. Employee agrees and acknowledges that, during the Restrictive Period, he or she will not, directly or indirectly,\nfor himself or on behalf of others, as an individual on Employee's own account, or as a partner, joint venturer, employee, agent,\nsalesman, contractor, officer, director or otherwise, for him/herself or any other person, partnership, firm, corporation, association or\nother legal entity, enter into, engage in, accept employment from, or provide any services to, or for, any business that is in the\nBusiness of the Company, or engage in any activity that is competitive with the Company, in the Restricted Area. The parties agree\nthat this non-competition provision is intended to cover situations where a future business opportunity in which the Employee is\nengaged\nor a future employer of the Employee is selling the same or similar products and services in a Business which may compete\nwith the Company's products and services to Customers and Prospective Customers of the Company in the Restricted Area. This\nprovision shall not cover future business opportunities or employers of the Employee that sell different types of products or services\nin the Restricted Area so long as such future business opportunities or employers are not in the Business of the Company.\nNotwithstanding the preceding paragraphs, the spirit and intent of this non-competition clause is not to deny the Employee the ability\nto support his or her family, but rather to prevent the Employee from using the knowledge and experiences obtained from the\nCompany in a similar competitive environment. Along those lines, should the Employee leave the employment of the Employer for\nany reason, he or she would be prohibited from joining a for-profit cancer testing\n6\ngenetics laboratory and/or company in the Business of the Company in the Restricted Area. The Parties agree that all non-profit\nmedical testing laboratories, hospitals and academic institutions as well as for-profit prenatal and pediatric/constitutiona genetic\ntesting laboratories are excluded from the restrictions in paragraph 8(b). In other words, the Employee would be allowed under this\nnon-compete clause to work in any non-profit cancer genetics testing laboratory (e.g., in academia) as well as in a private, for-profit\nprenatal laboratory or pediatric/constitutional genetics testing laboratory. Thus, the spirit and intent of this non-competition clause is\nintended to prevent the Employee from acting in any of the capacities outlined in this paragraph for any "for-profit" cancer genetics\ntesting laboratories that do the type of any one or more of the types of testing defined in the definition of Business in the Restricted\nArea.\n9. Acknowledgements of Employee.\na.\nThe Employee understands and acknowledges that any violation of this Agreement shall constitute a material breach of this\nAgreement and the Employment Agreement, and it will cause irreparable harm and loss to the Company for which monetary\ndamages will be an insufficient remedy. Therefore, the Parties agree that in addition to any other remedies available, the Company\nwill be entitled to the relief identified in Paragraph No. 10 below.\nb.\nThe Restrictive Covenants shall be construed as agreements independent of any other provision in this Agreement and the existence\nof any claim or cause of action of Employee against the Company shall not constitute a defense to the enforcement of these\nRestrictive Covenants.\nC.\nEmployee agrees that the Restrictive Covenants are reasonably necessary to protect the legitimate business interests of the Company.\nd.\nEmployee agrees that this Agreement may be enforced by the Company's successor in interest by way of merger, business\ncombination or consolidation where a majority of the surviving entity is not owned by Company's shareholders who owned a\nmajority of the Company's voting shares prior to such transaction and Employee acknowledges and agrees that successors are\nintended beneficiaries of this Agreement.\ne.\nEmployee agrees that if any portion of the Restrictive Covenants is held by a court of competent jurisdiction to be unreasonable,\narbitrary or against public policy for any reason, such shall be modified accordingly as to time, geographic area and line of business\nso as to be enforceable to the fullest extent possible as to time, area and line of business.\nf.\nEmployee acknowledges that any violations of the Agreement will be a material breach of this Agreement and may subject the\nEmployee, and/or any individual(s), partnership, corporation, joint venture or other type of business with whom the Employee is then\naffiliated or employed, to monetary and other damages.\ng.\nEmployee agrees that any failure of the Company to enforce the Restrictive Covenants against any other employee, for any reason,\nshall not constitute a defense to enforcement of the Restrictive Covenants against the Employee.\n10. Specific Performance; Injunction. The Parties agree and acknowledge that the restrictions contained in Paragraphs 1-8 are reasonable in\nscope and duration and are necessary to protect the Company. If any provision of Paragraphs 1-8 as applied to any party or to any circumstance is\njudged by a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the\n7\nvalidity or enforceability of any other provision of this Agreement. If any such provision, or any part thereof, is held to be unenforceable because\nof the duration of such provision or the area covered thereby, the court making such determination shall have the power to reduce the duration\nand/or area of such provision, and/or to delete specific words or phrases, and in its reduced form, such provision shall then be enforceable and\nshall be enforced.\nAny unauthorized use or disclosure of Confidential Information in violation of Paragraphs 2-7 above or violation of the Restrictive\nCovenant in Paragraph 8 shall constitute a material breach of this Agreement and will cause irreparable harm and loss to the Company for which\nmonetary damages may be an insufficient remedy. Therefore, in addition to any other remedy available, the Company will be entitled to all\navailable civil remedies, including:\na.\nTemporary and permanent injunctive relief, without the necessity of posting a bond, restraining Employee or Representatives and any\nother person, partnership, firm, corporation, association or other legal entity acting in concert with Employee from any actual or\nthreatened unauthorized disclosure or use of Confidential Information, in whole or in part, or from rendering any service to any other\nperson, partnership, firm, corporation, association or other legal entity to whom such Confidential Information in whole or in part,\nhas been disclosed or used or is threatened to be disclosed or used; and\nb.\nTemporary and permanent injunctive relief, without the necessity of posting a bond, restraining the Employee from violating, directly\nor indirectly, the restrictions of the Restrictive Covenant in any capacity identified in Paragraph 8, supra, and restricting third parties\nfrom aiding and abetting any violations of the Restrictive Covenant; and\nC.\nCompensatory damages, including actual loss from misappropriation and unjust enrichment, and any and all legal fees, including\nwithout limitation, all attorneys' fees, court costs, and any other related fees and/or costs incurred by the Company in enforcing this\nAgreement.\nNotwithstanding the forgoing, the Company acknowledges and agrees that the Employee will not be liable for the payment of any damages\nor fees owed to the Company through the operation of Paragraph 10c above, unless and until a court of competent jurisdiction has determined\nthat the Company or any successor is entitled to such recovery.\nNothing in this Agreement shall be construed as prohibiting the Company from pursuing any other legal or equitable remedies available to\nit\nfor actual or threatened breach of the provisions of Paragraphs 1 - 8 of this Agreement, and the existence of any claim or cause of action by\nEmployee against the Company shall not constitute a defense to the enforcement by the Company of any of the provisions of this Agreement.\nThe Company and its Affiliated Entities have fully performed all obligations entitling it to the covenants of Paragraphs 1 - 8 of this Agreement\nand therefore such prohibitions are not executory or otherwise subject to rejection under the bankruptcy code.\n11. Duty to Disclose Agreement and to Report New Employer. Employee acknowledges that the Company has a legitimate business purpose\nin\nthe\nprotection of its Confidential Information. Employee also recognizes and agrees that the Company has the right to such information as is\nreasonably necessary to inform the Company whether the terms of this Agreement are being complied with. Accordingly, Employee agrees that\nEmployee will promptly notify any new employer of his/her obligations contained here. Employee also will provide the Company with the\nidentity of his/her new employer(s) and a description of the services being provided by him/her in sufficient detail to allow the Company to\nreasonably determine whether such activities fall within the scope of activities prohibited by the provisions of this Agreement\n8\n12. Representations as to Prior or Other Agreements. Employee represents and warrants that he/she is able to perform the contemplated\nduties of employment without being in breach of confidentiality agreements or disclosing proprietary information of any third party, and that no\nproprietary information of any third party shall be disclosed to the Company. Employee further represents and warrants that he/she is not\nprohibited from entering into this Agreement or performing services under it by any non-competition, non-solicitation, anti-piracy agreement,\nrelationship agreement, or any other restrictions. Employee agrees to indemnify and hold the Company harmless from all claims or causes of\naction by any person or entity against the Company arising out of any alleged breach by Employee of any such agreement or any other\nrestrictions inconsistent with the foregoing representations.\n13. Company Use of Employee Name, Image and Voice. The Company may use and publish Employee's name and picture, including audio or\nvideo tape recordings, for purposes relating to its business without a specific release from Employee.\n14. Termination. Employee agrees to bring any claims that he/she may have against the Company within three hundred (300) days of the day\nthat Employee knew, or should have known, of the facts giving rise to the cause of action and waives any longer, but not shorter, statutory or\nother limitations periods. This includes, but is not limited to, the initial filing of a charge with the Equal Employment Opportunity Commission\nand/or state equivalent civil rights agency. However, Employee understands that he/she will thereafter have the right to pursue any federal claim\nin the manner prescribed in any right to sue letter that is issued by an agency.\n15. Nondisparagement. Employee shall not make any disparaging or defamatory comments about the Company, whether true or not, except to\ncomply with any summons, court order or subpoena.\n16. Waiver of Jury Trial. THE COMPANY AND EMPLOYEE EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION\nOR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY INSTRUMENT,\nDOCUMENT OR AGREEMENT DELIVERED IN CONNECTION HEREWITH OR HEREAFTER OR RELATED IN ANY\nFASHION TO EMPLOYEE'S EMPLOYMENT WITH COMPANY.\n17. Governing Law, Venue and Personal Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the\nlaws of state of Florida without regard to any statutory or common-law provision pertaining to conflicts of laws. The parties agree that courts of\ncompetent jurisdiction in Lee County, Florida and the United States District Court for the Southern District of Florida shall have concurrent\njurisdiction for purposes of entering temporary, preliminary and permanent injunctive relief and with regard to any action arising out of any\nbreach or alleged breach of this Agreement. Employee waives personal service of any and all process upon Employee and consents that all such\nservice of process may be made by certified or registered mail directed to Employee at the address stated in the signature section of this\nAgreement, with service so made deemed to be completed upon actual receipt thereof. Employee waives any objection to jurisdiction and venue\nof any action instituted against Employee as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue.\nEmployee further agrees that any action arising out of this Agreement or the relationship between the parties established herein shall be brought\nonly in courts of competent jurisdiction in Lee County, Florida or the United States District Court for the Southern District of Florida.\n18. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by\nEmployee. This Agreement shall inure to the benefit of Company's successors.\n19. Entire Agreement. This Agreement is the entire agreement of the Parties with regard to the\n9\nmatters addressed herein, and supersedes all prior negotiations, preliminary agreements, and all prior and contemporaneous discussions and\nunderstandings of the signatories in connection with the subject matter of this Agreement, except however, that this Agreement shall be read in\npari materia with the Employment Agreement executed by Employee. This Agreement may be modified only by written instrument signed by\nthe Company and Employee.\n20. Severability.. In case any one or more provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable\nin any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as\nif such invalid, illegal were unenforceable provision had not been contained herein.\n21. Waiver. The waiver by the Company of a breach or threatened breach of this Agreement by Employee cannot be construed as a waiver\nof\nany subsequent breach by Employee unless such waiver SO provides by its terms. The refusal or failure of the Company to enforce any specific\nrestrictive covenant in this Agreement against Employee, or any other person for any reason, shall not constitute a defense to the enforcement by\nthe Company of any other restrictive covenant provision set forth in this Agreement.\n22. Consideration. Employee expressly acknowledges and agrees that the execution by the Company of the Employment Agreement with the\nEmployee constitutes full, adequate and sufficient consideration to Employee for the covenants of Employee under this Agreement.\n23. Notices All notices required by this Agreement shall be in writing, shall be personally delivered or sent by U.S. Registered or Certified\nMail, return receipt requested, and shall be addressed to the signatories at the addresses shown on the signature page of this Agreement.\n24. Acknowledgements. Employee acknowledge(s) that he or she has reviewed this Agreement prior to signing it, that he or she knows and\nunderstands the contents, purposes and effect of this Agreement, and that he or she has been given a signed copy of this Agreement for his or her\nrecords. Employee further acknowledges and agrees that he or she has entered into this Agreement freely, without any duress or coercion.\n25. Captions. Captions to paragraphs and sections of this Agreement have been included solely for the sake of convenient reference and are\nentirely without substantive effect.\n26. Counterparts. This Agreement may be executed in counterparts, by facsimile or Adobe Acrobat pdf file each of which shall be deemed an\noriginal for all intents and purposes.\n[Signatures Appear on the Following Page]\n10\nIN WITNESS WHEREOF, THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND KNOW\nAND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY AGREE TO BE BOUND AND ABIDE BY THE\nREPRESENTATIONS, COVENANTS, PROMISES AND WARRANTIES CONTAINED HEREIN.\nBy: /s/ Robert J. Shovlin\n09/18/14\nEmployee Signature\nDate\nEmployee Name:\nRobert J. Shovlin\nEmployee Address:\n15 Pine Tree Road\nRamsey, NJ 07446\nNeoGenomics Laboratories, Inc.\n12701 Commonwealth Drive, Suite #5\nFort Myers, FL 33913\nBy: /s/ Douglas VanOort\n09/16/14\nDate\nName: Douglas VanOort\nTitle: Chairman and CEO\n11	EX-10.2 3 d799884dex102.htm CONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETE AGREEMENT\nEXHIBIT 10.2\nCONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETE AGREEMENT\nThis Confidentiality, Non-Solicitation and Non-Compete Agreement (the “Agreement”) dated this 18th day of September, 2014 is entered\ninto by and between Robert J. Shovlin (“Employee”) and NeoGenomics, Inc., a Nevada corporation (“Employer” or the (“Parent Company”)\nand collectively with NeoGenomics Laboratories, Inc., a Florida corporation and any entity that is wholly or partially owned by the Parent\nCompany or otherwise affiliated with the Parent Company, the “Company”). Hereinafter, each of the Employee or the Company maybe referred\nto as a “Party” and together be referred to as the “Parties”.\nRECITALS:\nWHEREAS, the Parties have entered into that certain Employment Agreement, of even dated herewith, that creates an employment\nrelationship between the Employer and Employee (the “Employment Agreement”); and\nWHEREAS, pursuant to the Employment Agreement, the Employee agreed to enter into the Company’s Confidentiality, Non-Solicitation\nand Non-Compete Agreement; and\nWHEREAS, the Company desires to protect and preserve its Confidential Information and its legitimate business interests by having the\nEmployee enter into this Agreement as part of the Employment Agreement; and\nWHEREAS, the Employee desires to establish and maintain an employment relationship with the Company and as part of such\nemployment relationship desires to enter into this Agreement with the Company; and\nWHEREAS, the Employee acknowledges that the terms of the Employment Agreement including, but not limited to the Company’s\ncommitments to the Employee with respect to base salary, fringe benefits and stock options are sufficient consideration to the Employee for the\nentry into this Agreement.\nWHEREAS, the Employee acknowledges that substantial cost and expense has been or will be incurred by the Company for Employee’s\ntraining, and Employee’s training and employment have caused, or will require, the disclosure of certain Company confidential and proprietary\ninformation, trade secrets and customer and supplier relationships.\nNOW, THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and\nsufficiency of which are hereby acknowledged, the Parties agree as follows:\n1. Term. Employee agrees that all of the provisions of this Agreement except for Sections 7 and 8 hereof shall be effective as of the date of this\nAgreement. The Company and the Employee agree that Sections 7 and 8 hereof will not become effective until the Employee’s first day of\nemployment with the Company. Employee agrees that the term of this Agreement (“Term”) shall be as follows: (i) in the event that Employee\ndoes not actually become an employee of the Company as contemplated by the Employment Agreement, then the Term shall be for a period of\ntwo (2) years from the date of this Agreement, or (ii) in the event Employee does become an employee of the Company, then the term of this\nAgreement shall survive and continue to be in force and effect for two years following the termination of any employment\n1\nrelationship between the Parties, whether termination is by the Company with or without cause, wrongful discharge, or for any other reason\nwhatsoever, or by the Employee unless an exception is specifically provided in certain situations in any such Restrictive Covenants.\n2. Definitions.\na. The term “Confidential Information” as used herein shall include all business practices, methods, techniques, or processes that:\n(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper\nmeans by, other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the\ncircumstances to maintain its secrecy. Confidential Information also includes, but is not limited to, files, letters, memoranda, reports, records,\ncomputer disks or other computer storage medium, data, models or any photographic or other tangible materials containing such information,\nCustomer lists and names and other information, Customer contracts, other corporate contracts, computer programs, proprietary technical\ninformation and/or strategies, sales, promotional or marketing plans or strategies, programs, techniques, practices, any expansion plans\n(including existing and entry into new geographic and/or product markets), pricing information, product or service offering specifications or\nplans thereof, business plans, financial information and other financial plans, data pertaining to the Company’s operating performance, employee\nlists, salary information, Personal Information, Protected Health Information, all information the Company receives from customers or other third\nparties that is not generally known to the public or is subject to a confidentiality agreement, training manuals, and other materials and business\ninformation of a similar nature, including information about the Company itself or any affiliated entity, which Employee acknowledges and\nagrees has been compiled by the Company’s expenditure of a great amount of time, money and effort, and that contains detailed information that\ncould not be created independently from public sources. Further, all data, spreadsheets, reports, records, know-how, verbal communication,\nproprietary and technical information and/or other confidential materials of similar kind transmitted by the Company to Employee or developed\nby the Employee on behalf of the Company as Work Product (as defined in Paragraph 7) are expressly included within the definition of\n“Confidential Information.” The Parties further agree that the fact the Company may be seeking to complete a business transaction is\n“Confidential Information” within the meaning of this Agreement, as well as all notes, analysis, work product or other material derived from\nConfidential Information. Nevertheless, Confidential Information shall not include any information of any kind which (1) is in the possession of\nthe Employee prior to the date of this Agreement, as shown by the Employee’s files and records, or (2) prior or after the time of disclosure\nbecomes part of the public knowledge or literature, not as a result of any violation of this Agreement, any violation of any similar agreement with\nany other party or inaction or action of the receiving party, or (3) is rightfully received from a third party without any obligation of\nconfidentiality; or (4) independently developed after termination without reference to the Confidential Information or materials based thereon; or\n(5) is disclosed pursuant to the order or requirement of a court, administrative agency, or other government body; or (6) is approved for release\nby the non-disclosing party.\nb. The term “Personal Information” (“PI”) is Confidential Information and includes, but is not limited to, an individual’s first name and\nlast name or first initial and last name in combination with any of the following: an individual’s social security number, tax I.D. number, social\ninsurance number, driver’s license number, state issued identification card number, financial information, healthcare information, or credit or\ndebit card number.\nc. The term “Protected Health Information” (“PHI”) is Confidential Information and includes information that is created, received,\nand/or maintained by the Company related to an individual’s health care (or payment related to health care) that directly or indirectly identifies\nthe individual.\n2\nd. The term “Customer” shall mean any person or entity which has purchased or ordered goods, products or services from the Company\nand/or entered into any contract for products or services with the Company within the one (1) year immediately preceding the termination of the\nEmployee’s employment with the Company.\ne. The term “Prospective Customer” shall mean any person or entity which has evidenced an intention to order products or services with\nthe Company within one year immediately preceding the termination of the Employee’s employment with the Company.\nf. The term “Restricted Area” shall include any geographical location anywhere in the United States. If the Restricted Area specified in\nthis Agreement should be judged unreasonable in any proceeding, then the Restricted Area shall be reduced so that the restrictions may be\nenforced as is judged to be reasonable.\ng. The phrase “directly or indirectly” shall include the Employee either on his/her own account, or as a partner, owner, promoter, joint\nventurer, employee, agent, consultant, advisor, manager, executive, independent contractor, officer, director, or a stockholder of 5% or more of\nthe voting shares of an entity in the Business of Company.\nh. The term “Business” shall mean the business of providing non-academic, for-profit cancer genetic and molecular laboratory testing\nservices, including, but not limited to, cytogenetics, flow cytometry, fluorescence in-situ hybridization (“FISH”), morphological studies, and\nmolecular testing, to hematologists, oncologists, urologists, pathologists, hospitals and other medical reference laboratories.\n3. Duty of Confidentiality.\na. All Confidential Information is considered highly sensitive and strictly confidential. The Employee agrees that at all times during the\nterm of this Agreement and after the termination of employment with the Company for as long as such information remains non-public\ninformation, the Employee shall (i) hold in confidence and refrain from disclosing to any other party all Confidential Information, whether\nwritten or oral, tangible or intangible, concerning the Company and its business and operations unless such disclosure is accompanied by a non-\ndisclosure agreement executed by the Company with the party to whom such Confidential Information is provided, (ii) use the Confidential\nInformation solely in connection with his or her employment with the Company and for no other purpose, (iii) take all reasonable precautions\nnecessary to ensure that the Confidential Information shall not be, or be permitted to be, shown, copied or disclosed to third parties, without the\nprior written consent of the Company, (iv) observe all security policies implemented by the Company from time to time with respect to the\nConfidential Information, and (v) not use or disclose, directly or indirectly, as an individual or as a partner, joint venturer, employee, agent,\nsalesman, contractor, officer, director or otherwise, for the benefit of himself or herself or any other person, partnership, firm, corporation,\nassociation or other legal entity, any Confidential Information, unless expressly permitted by this Agreement. Employee agrees that protection of\nthe Company’s Confidential Information constitutes a legitimate business interest justifying the restrictive covenants contained herein. Employee\nfurther agrees that the restrictive covenants contained herein are reasonably necessary to protect the Company’s legitimate business interest in\npreserving its Confidential Information. In addition, Employee will not view or access any PI or PHI unless required by the Company in the\ncourse Employee’s job duties and responsibilities for the Company and then only when authorized by the Company to do so. Employee\nacknowledges that he/she shall bear all costs, losses and damages resulting from any intentional breach of this paragraph, to the fullest extent\npermitted by applicable law.\n3\nb. In the event that the Employee is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding or\notherwise, such disclosure shall be limited to the narrowest disclosure so required and, except to the extent prohibited by law, Employee shall\ngive the Company at least two (2) weeks’ notice, if practicable, of the basis for any such compelled disclosure of Confidential Information and\nshall reasonably cooperate with the Company in limiting disclosure and obtaining suitable confidentiality protections.\nc. Employee acknowledge(s) that this “Confidential Information” is of value to the Company by providing it with a competitive advantage\nover their competitors, is not generally known to competitors of the Company, and is not intended by the Company for general dissemination.\nEmployee acknowledges that this “Confidential Information” derives independent economic value, actual or potential, from not being generally\nknown to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is\nthe subject of reasonable efforts to maintain its secrecy. Therefore, the Parties agree that all “Confidential Information” under this Agreement\nconstitutes “Trade Secrets” under Section 688.002 and Chapter 812 of the Florida Statutes.\n4. Limited Right of Disclosure. Except as otherwise permitted by this Agreement, Employee shall limit disclosure of pertinent Confidential\nInformation to Employee’s attorney, if any (“Representative(s)”), for the sole purpose of evaluating Employee’s relationship with the Company.\nParagraph 3 of this Agreement shall bind all such Representative(s).\n5. Return of Company Property and Confidential Materials. All tangible property, including cell phones, laptop computers and other\nCompany purchased property, as well as all Confidential Information, Customer and Prospective Customer information and property, provided to\nEmployee is the exclusive property of the Company and must be returned to the Company in accordance with the instructions of the Company\neither upon termination of the Employee’s employment or at such other time as is requested by the Company. Employee agree(s) that upon\ntermination of employment for any reason whatsoever Employee shall return all copies, in whatever form or media, including hard copies and\nelectronic copies, of Confidential Information to the Company, and Employee shall delete any copy of the Confidential Information on any\ncomputer file or database maintained by Employee and shall certify in writing that he/she has done so. In addition to returning all Confidential\nInformation to the Company as described above, Employee will destroy any analysis, notes, work product or other materials relating to or\nderived from the Confidential Information. Any retention of Confidential Information may constitute “civil theft” as such term is defined in\nChapter 772 of the Florida Statutes.\n6. Agreement Not To Circumvent. Employee agrees not to pursue any transaction or business relationship that is directly competitive to the\nBusiness of the Company that makes use of any Confidential Information during the Term of this Agreement, other than through the Company or\non behalf of the Company. It is further understood and agreed that, after the Employee’s employment with the Company has been terminated, the\nEmployee will direct all communications and requests from any third parties regarding Confidential Information or Business opportunities which\nuse Confidential Information through the Company’s then chief executive officer or president. Employee acknowledges that any violation of this\ncovenant may subject Employee to the remedies identified in Paragraph 9 in addition to any other available remedies.\n7. Title to Work Product. Employee agrees that all work products (including strategies and testing methodologies for competing in the genetics\ntesting industry, technical materials and diagrams, computer programs, financial plans and other written materials, websites, presentation\nmaterials, course materials, advertising campaigns, slogans, videos, pictures and other materials) created or developed by the Employee for the\nCompany during the term of the Employee’s employment with the Company or any successor to the Company until the date of termination of the\nEmployee (collectively, the “Work Product”), shall be considered a work made for hire and that the Company shall be the sole owner of all\nrights, including copyright, in and to the Work Product.\n4\nIf the Work Product, or any part thereof, does not qualify as a work made for hire, the Employee agrees to assign, and hereby assigns, to the\nCompany for the full term of the copyright and all extensions thereof all of its right, title and interest in and to the Work Product. All discoveries,\ninventions, innovations, works of authorship, computer programs, improvements and ideas, whether or not patentable or copyrightable or\notherwise protectable, conceived, completed, reduced to practice or otherwise produced by the Employee in the course of his or her services to\nthe Company in connection with or in any way relating to the Business of the Company or capable of being used or adapted for use therein or in\nconnection therewith shall forthwith be disclosed to the Company and shall belong to and be the absolute property of the Company unless\nassigned by the Company to another entity.\nEmployee hereby assigns to the Company all right, title and interest in all of the discoveries, inventions, innovations, works of authorship,\ncomputer programs, improvements, ideas and other work product; all copyrights, trade secrets, and trademarks in the same; and all patent\napplications filed and patents granted worldwide on any of the same for any work previously completed on behalf of the Company or work\nperformed under the terms of this Agreement or the Employment Agreement. Employee, if and whenever required to do so (whether during or\nafter the termination of his or her employment), shall at the expense of the Company apply or join in applying for copyrights, patents or\ntrademarks or other equivalent protection in the United States or in other parts of the world for any such discovery, invention, innovation, work\nof authorship, computer program, improvement, and idea as aforesaid and execute, deliver and perform all instruments and things necessary for\nvesting such patents, trademarks, copyrights or equivalent protections when obtained and all right, title and interest to and in the same in the\nCompany absolutely and as sole beneficial owner, unless assigned by the Company to another entity. Notwithstanding the foregoing, work\nproduct conceived by the Employee, which is not related to the Business of the Company, will remain the property of the Employee.\n8. Restrictive Covenant. The Company and its affiliated entities are engaged in the Business of providing genetic and molecular testing\nservices. The covenants contained in this Paragraph 8 (the “Restrictive Covenants”) are given and made by Employee to induce the Company to\nemploy Employee under the terms of the Employment Agreement, and Employee acknowledges sufficiency of consideration for these Restrictive\nCovenants. Employee expressly covenants and agrees that, during his or her employment and for a period of two (2) years following termination\nof such employment (such period of time is hereinafter referred to as the “Restrictive Period”), he/she will abide by the following restrictive\ncovenants unless an exception is specifically provided, in writing signed by Company, in certain situations in such Restrictive Covenants.\nNotwithstanding the forgoing, the Company agrees that the Restrictive Period of the Non-Competition Covenant described in paragraph 8(b)\nbelow shall be reduced to one year in the event that the Company consummates a change of control within the first year of the Employee’s\nemployment with the Company and the Employee is terminated without “Cause” (as such term is defined in the Employment Agreement) within\nninety (90) days of the effective date of such change of control.\na.\nNon-Solicitation. Employee agrees and acknowledges that, during the Restrictive Period, he/she will not, directly or indirectly, in\none or a series of transactions, as an individual or as a partner, joint venturer, employee, agent, salesperson, contractor, officer,\ndirector or otherwise, for the benefit of himself or herself or any other person, partnership, firm, corporation, association or other\nlegal entity:\n5\n(i) solicit or induce, or attempt to solicit or induce, any Customer or Prospective Customer of the Company to patronize or do\nbusiness with any other company (or business) that is in the Business conducted by the Company in the Restricted Area; or\n(ii) request or advise any Customer, supplier or vendor, or any Prospective Customer, prospective supplier or prospective vendor,\nof the Company, who was a Customer, Prospective Customer, supplier, prospective supplier, vendor or prospective vendor\nwithin one year immediately preceding the termination of the Employee’s employment with the Company, to withdraw,\ncurtail, cancel or refrain from doing business with the Company in any capacity; or\n(iii) manage, operate, be connected with, employed by, sell goods to, or perform services for, or on behalf of, in any manner, any\nCustomer, or Prospective Customer, of the Company either myself or on behalf of any other entity that may employ, engage or\nassociate with me in any fashion.\n(iv) recruit, solicit or otherwise induce any proprietor, partner, stockholder, lender, director, officer, employee, sales agent, joint\nventurer, investor, lessor, supplier, Customer, agent, representative or any other person which has a business relationship with\nthe Company or any Affiliated Entity to discontinue, reduce or detrimentally modify such employment, agency or business\nrelationship with the Company; or\n(v)\nemploy or solicit, or attempt to employ or solicit, for employment any person or agent who is then (or was at any time within\ntwelve (12) months prior to the date Employee or any entity related to Employee seeks to employ such person) employed or\nretained by the Company. Notwithstanding the forgoing, to the extent the Employee works for a larger firm or corporation\nafter his or her termination from the Company and he or she does not have any personal knowledge and/or control over the\nsolicitation of or the employment of a Company employee or agent, then this provision shall not be enforceable as it relates to\nthat employee.\nb. Non-Competition. Employee agrees and acknowledges that, during the Restrictive Period, he or she will not, directly or indirectly,\nfor himself , or on behalf of others, as an individual on Employee’s own account, or as a partner, joint venturer, employee, agent,\nsalesman, contractor, officer, director or otherwise, for him/herself or any other person, partnership, firm, corporation, association or\nother legal entity, enter into, engage in, accept employment from, or provide any services to, or for, any business that is in the\nBusiness of the Company, or engage in any activity that is competitive with the Company, in the Restricted Area. The parties agree\nthat this non-competition provision is intended to cover situations where a future business opportunity in which the Employee is\nengaged or a future employer of the Employee is selling the same or similar products and services in a Business which may compete\nwith the Company’s products and services to Customers and Prospective Customers of the Company in the Restricted Area. This\nprovision shall not cover future business opportunities or employers of the Employee that sell different types of products or services\nin the Restricted Area so long as such future business opportunities or employers are not in the Business of the Company.\nNotwithstanding the preceding paragraphs, the spirit and intent of this non-competition clause is not to deny the Employee the ability\nto support his or her family, but rather to prevent the Employee from using the knowledge and experiences obtained from the\nCompany in a similar competitive environment. Along those lines, should the Employee leave the employment of the Employer for\nany reason, he or she would be prohibited from joining a for-profit cancer testing\n6\ngenetics laboratory and/or company in the Business of the Company in the Restricted Area. The Parties agree that all non-profit\nmedical testing laboratories, hospitals and academic institutions as well as for-profit prenatal and pediatric/constitutional genetic\ntesting laboratories are excluded from the restrictions in paragraph 8(b). In other words, the Employee would be allowed under this\nnon-compete clause to work in any non-profit cancer genetics testing laboratory (e.g ., in academia) as well as in a private, for-profit\nprenatal laboratory or pediatric/constitutional genetics testing laboratory. Thus, the spirit and intent of this non-competition clause is\nintended to prevent the Employee from acting in any of the capacities outlined in this paragraph for any “for-profit” cancer genetics\ntesting laboratories that do the type of any one or more of the types of testing defined in the definition of Business in the Restricted\nArea.\n9. Acknowledgements of Employee.\na.\nThe Employee understands and acknowledges that any violation of this Agreement shall constitute a material breach of this\nAgreement and the Employment Agreement, and it will cause irreparable harm and loss to the Company for which monetary\ndamages will be an insufficient remedy. Therefore, the Parties agree that in addition to any other remedies available, the Company\nwill be entitled to the relief identified in Paragraph No. 10 below.\nb. The Restrictive Covenants shall be construed as agreements independent of any other provision in this Agreement and the existence\nof any claim or cause of action of Employee against the Company shall not constitute a defense to the enforcement of these\nRestrictive Covenants.\nc.\nEmployee agrees that the Restrictive Covenants are reasonably necessary to protect the legitimate business interests of the Company.\nd. Employee agrees that this Agreement may be enforced by the Company’s successor in interest by way of merger, business\ncombination or consolidation where a majority of the surviving entity is not owned by Company’s shareholders who owned a\nmajority of the Company’s voting shares prior to such transaction and Employee acknowledges and agrees that successors are\nintended beneficiaries of this Agreement.\ne.\nEmployee agrees that if any portion of the Restrictive Covenants is held by a court of competent jurisdiction to be unreasonable,\narbitrary or against public policy for any reason, such shall be modified accordingly as to time, geographic area and line of business\nso as to be enforceable to the fullest extent possible as to time, area and line of business.\nf. Employee acknowledges that any violations of the Agreement will be a material breach of this Agreement and may subject the\nEmployee, and/or any individual(s), partnership, corporation, joint venture or other type of business with whom the Employee is then\naffiliated or employed, to monetary and other damages.\ng. Employee agrees that any failure of the Company to enforce the Restrictive Covenants against any other employee, for any reason,\nshall not constitute a defense to enforcement of the Restrictive Covenants against the Employee.\n10. Specific Performance; Injunction. The Parties agree and acknowledge that the restrictions contained in Paragraphs 1-8 are reasonable in\nscope and duration and are necessary to protect the Company. If any provision of Paragraphs 1-8 as applied to any party or to any circumstance is\njudged by a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the\n7\nvalidity or enforceability of any other provision of this Agreement. If any such provision, or any part thereof, is held to be unenforceable because\nof the duration of such provision or the area covered thereby, the court making such determination shall have the power to reduce the duration\nand/or area of such provision, and/or to delete specific words or phrases, and in its reduced form, such provision shall then be enforceable and\nshall be enforced.\nAny unauthorized use or disclosure of Confidential Information in violation of Paragraphs 2-7 above or violation of the Restrictive\nCovenant in Paragraph 8 shall constitute a material breach of this Agreement and will cause irreparable harm and loss to the Company for which\nmonetary damages may be an insufficient remedy. Therefore, in addition to any other remedy available, the Company will be entitled to all\navailable civil remedies, including:\na.\nTemporary and permanent injunctive relief, without the necessity of posting a bond, restraining Employee or Representatives and any\nother person, partnership, firm, corporation, association or other legal entity acting in concert with Employee from any actual or\nthreatened unauthorized disclosure or use of Confidential Information, in whole or in part, or from rendering any service to any other\nperson, partnership, firm, corporation, association or other legal entity to whom such Confidential Information in whole or in part,\nhas been disclosed or used or is threatened to be disclosed or used; and\nb. Temporary and permanent injunctive relief, without the necessity of posting a bond, restraining the Employee from violating, directly\nor indirectly, the restrictions of the Restrictive Covenant in any capacity identified in Paragraph 8, supra, and restricting third parties\nfrom aiding and abetting any violations of the Restrictive Covenant; and\nc.\nCompensatory damages, including actual loss from misappropriation and unjust enrichment, and any and all legal fees, including\nwithout limitation, all attorneys’ fees, court costs, and any other related fees and/or costs incurred by the Company in enforcing this\nAgreement.\nNotwithstanding the forgoing, the Company acknowledges and agrees that the Employee will not be liable for the payment of any damages\nor fees owed to the Company through the operation of Paragraph 10c above, unless and until a court of competent jurisdiction has determined\nthat the Company or any successor is entitled to such recovery.\nNothing in this Agreement shall be construed as prohibiting the Company from pursuing any other legal or equitable remedies available to\nit for actual or threatened breach of the provisions of Paragraphs 1 – 8 of this Agreement, and the existence of any claim or cause of action by\nEmployee against the Company shall not constitute a defense to the enforcement by the Company of any of the provisions of this Agreement.\nThe Company and its Affiliated Entities have fully performed all obligations entitling it to the covenants of Paragraphs 1 – 8 of this Agreement\nand therefore such prohibitions are not executory or otherwise subject to rejection under the bankruptcy code.\n11. Duty to Disclose Agreement and to Report New Employer. Employee acknowledges that the Company has a legitimate business purpose\nin the protection of its Confidential Information. Employee also recognizes and agrees that the Company has the right to such information as is\nreasonably necessary to inform the Company whether the terms of this Agreement are being complied with. Accordingly, Employee agrees that\nEmployee will promptly notify any new employer of his/her obligations contained here. Employee also will provide the Company with the\nidentity of his/her new employer(s) and a description of the services being provided by him/her in sufficient detail to allow the Company to\nreasonably determine whether such activities fall within the scope of activities prohibited by the provisions of this Agreement\n8\n12. Representations as to Prior or Other Agreements. Employee represents and warrants that he/she is able to perform the contemplated\nduties of employment without being in breach of confidentiality agreements or disclosing proprietary information of any third party, and that no\nproprietary information of any third party shall be disclosed to the Company. Employee further represents and warrants that he/she is not\nprohibited from entering into this Agreement or performing services under it by any non-competition, non-solicitation, anti-piracy agreement,\nrelationship agreement, or any other restrictions. Employee agrees to indemnify and hold the Company harmless from all claims or causes of\naction by any person or entity against the Company arising out of any alleged breach by Employee of any such agreement or any other\nrestrictions inconsistent with the foregoing representations.\n13. Company Use of Employee Name, Image and Voice. The Company may use and publish Employee’s name and picture, including audio or\nvideo tape recordings, for purposes relating to its business without a specific release from Employee.\n14. Termination. Employee agrees to bring any claims that he/she may have against the Company within three hundred (300) days of the day\nthat Employee knew, or should have known, of the facts giving rise to the cause of action and waives any longer, but not shorter, statutory or\nother limitations periods. This includes, but is not limited to, the initial filing of a charge with the Equal Employment Opportunity Commission\nand/or state equivalent civil rights agency. However, Employee understands that he/she will thereafter have the right to pursue any federal claim\nin the manner prescribed in any right to sue letter that is issued by an agency.\n15. Nondisparagement. Employee shall not make any disparaging or defamatory comments about the Company, whether true or not, except to\ncomply with any summons, court order or subpoena.\n16. Waiver of Jury Trial. THE COMPANY AND EMPLOYEE EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION\nOR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY INSTRUMENT,\nDOCUMENT OR AGREEMENT DELIVERED IN CONNECTION HEREWITH OR HEREAFTER OR RELATED IN ANY\nFASHION TO EMPLOYEE’S EMPLOYMENT WITH COMPANY.\n17. Governing Law, Venue and Personal Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the\nlaws of state of Florida without regard to any statutory or common-law provision pertaining to conflicts of laws. The parties agree that courts of\ncompetent jurisdiction in Lee County, Florida and the United States District Court for the Southern District of Florida shall have concurrent\njurisdiction for purposes of entering temporary, preliminary and permanent injunctive relief and with regard to any action arising out of any\nbreach or alleged breach of this Agreement. Employee waives personal service of any and all process upon Employee and consents that all such\nservice of process may be made by certified or registered mail directed to Employee at the address stated in the signature section of this\nAgreement, with service so made deemed to be completed upon actual receipt thereof. Employee waives any objection to jurisdiction and venue\nof any action instituted against Employee as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue.\nEmployee further agrees that any action arising out of this Agreement or the relationship between the parties established herein shall be brought\nonly in courts of competent jurisdiction in Lee County, Florida or the United States District Court for the Southern District of Florida.\n18. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by\nEmployee. This Agreement shall inure to the benefit of Company’s successors.\n19. Entire Agreement. This Agreement is the entire agreement of the Parties with regard to the\n9\nmatters addressed herein, and supersedes all prior negotiations, preliminary agreements, and all prior and contemporaneous discussions and\nunderstandings of the signatories in connection with the subject matter of this Agreement, except however, that this Agreement shall be read in\npari materia with the Employment Agreement executed by Employee. This Agreement may be modified only by written instrument signed by\nthe Company and Employee.\n20. Severability. In case any one or more provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable\nin any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as\nif such invalid, illegal were unenforceable provision had not been contained herein.\n21. Waiver. The waiver by the Company of a breach or threatened breach of this Agreement by Employee cannot be construed as a waiver of\nany subsequent breach by Employee unless such waiver so provides by its terms. The refusal or failure of the Company to enforce any specific\nrestrictive covenant in this Agreement against Employee, or any other person for any reason, shall not constitute a defense to the enforcement by\nthe Company of any other restrictive covenant provision set forth in this Agreement.\n22. Consideration. Employee expressly acknowledges and agrees that the execution by the Company of the Employment Agreement with the\nEmployee constitutes full, adequate and sufficient consideration to Employee for the covenants of Employee under this Agreement.\n23. Notices . All notices required by this Agreement shall be in writing, shall be personally delivered or sent by U.S. Registered or Certified\nMail, return receipt requested, and shall be addressed to the signatories at the addresses shown on the signature page of this Agreement.\n24. Acknowledgements. Employee acknowledge(s) that he or she has reviewed this Agreement prior to signing it, that he or she knows and\nunderstands the contents, purposes and effect of this Agreement, and that he or she has been given a signed copy of this Agreement for his or her\nrecords. Employee further acknowledges and agrees that he or she has entered into this Agreement freely, without any duress or coercion.\n25. Captions. Captions to paragraphs and sections of this Agreement have been included solely for the sake of convenient reference and are\nentirely without substantive effect.\n26. Counterparts. This Agreement may be executed in counterparts, by facsimile or Adobe Acrobat pdf file each of which shall be deemed an\noriginal for all intents and purposes.\n[Signatures Appear on the Following Page]\n10\nIN WITNESS WHEREOF, THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND KNOW\nAND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY AGREE TO BE BOUND AND ABIDE BY THE\nREPRESENTATIONS, COVENANTS, PROMISES AND WARRANTIES CONTAINED HEREIN.\nBy: /s/ Robert J. Shovlin\n09/18/14\nEmployee Signature\nDate\nEmployee Name:\nRobert J. Shovlin\nEmployee Address: 15 Pine Tree Road\nRamsey, NJ 07446\nNeoGenomics Laboratories, Inc.\n12701 Commonwealth Drive, Suite #5\nFort Myers, FL 33913\nBy: /s/ Douglas VanOort\n09/16/14\nDate\nName: Douglas VanOort\nTitle: Chairman and CEO\n11
+6211e890a4e0b485e2aea5650bbcc8c1.pdf	effective_date jurisdiction party term	EX-99.D.2 11 d837450dex99d2.htm EX-99.D.2\nExhibit (d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), entered into as of MAY 13, 2013 (the “Effective Date”),\ngoverns the disclosure of information by and between AVANIR PHARMACEUTICALS, INC., a Delaware corporation, with offices located at 20\nEnterprise, Suite 200, Aliso Viejo, California, 92656, and OTSUKA PHARMACEUTICAL CO. LTD. a JAPANESE CORPORATION, with offices\nlocated at 2-9, KANDA TSUKASA-MACHI, CHIYODA-KU, TOKYO 101-8535, JAPAN (each a “party” and sometimes collectively referred to as\nthe “parties” to this Agreement).\n1. Purpose. This Agreement is made to define the terms and conditions under which any confidential information will be protected by and\ndisclosed between the parties during the term of this Agreement, for the sole purpose of evaluating a global research and development, and\ncommercial partnership, for NUEDEXTA and/or its compound AVP-786 (the “Purpose”).\n2. Confidential Information. As used herein, “Confidential Information” means, with respect to each party, any and all technical, business and\nfinancial information, including third party information, relating to the disclosing party or any of its affiliates that is furnished or disclosed, in\nwhatever form or medium, provided that (i) in the case of information provided in tangible form or by electronic media, it is marked with, or\naccompanied by, the legend “CONFIDENTIAL” (or other similar marking conveying the same intent); (ii) in the case of information disclosed\nby visual display or orally, it is identified as confidential when revealed and summarized in a writing so marked, referencing the date and type of\ninformation disclosed, delivered to the receiving party within thirty(30) days of such disclosure, before or after the Effective Date. “Confidential\nInformation” includes but is not limited to: (a) patents, patent applications; (b) trade secrets; (c) design rights, trademarks, copyrights, database\nrights and other intellectual property rights; and (d) other proprietary information, ideas, concepts, chemical compounds, assays, biological\nmaterials, gene sequences, cell lines, samples, data, techniques, sketches, drawings, works of authorship, models, inventions, source code, know-\nhow, processes, operations, programs, apparatuses, equipment, and formulae related to the current, future, and proposed products and services of\neach of the parties, and including, without limitation, their respective information concerning research, experimental work, clinical testing,\nregulatory information, development, design details and specifications, engineering, financial information, procurement requirements,\npurchasing, manufacturing, customer lists, investors, patients, employees, business and contractual relationships, business forecasts, analyst\nreports, sales and merchandising, marketing plans and any additional non-public information the disclosing party or any of its affiliates provides.\n3. Obligations. Each party agrees to disclose to the other only that Confidential Information that is reasonably necessary to enable the receiving\nparty to complete the Purpose. Each party agrees: (a) to use the other party’s Confidential Information solely for the Purpose stated above and for\nno other reason; (b) to protect the confidentiality of the other party’s Confidential Information; (c) not to disclose any of the other party’s\nConfidential Information to anyone, except those employees, officers, directors, consultants or other authorized representatives, of the receiving\nparty or its affiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are\notherwise bound by confidentiality obligations at least as restrictive as those contained herein (collectively, the “Authorized Representative”);\n(d) to notify appropriately such Authorized Representative that the disclosure is made in confidence and to require them to keep the same in\nconfidence in accordance with the terms and conditions of this Agreement, and to enforce those terms and conditions; and (e) if directed, to limit\nas directed the number of copies made of the other party’s Confidential Information, Each party agrees to immediately notify the other upon\ndiscovery of any loss or unauthorized disclosure of the Confidential Information of the other party, and to remedy any such loss or unauthorized\ndisclosure as reasonably requested by the disclosing party. The receiving party shall provide a list of all recipients of the disclosing party’s\nConfidential Information upon request within ten (10) days of such request.\nPage|1of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\n4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that: (a) the receiving\nparty can show is already known to the receiving party prior to the other party’s or its affiliate’s disclosure as evidenced by contemporaneous\nwritten evidence; (b) is or becomes publicly available through no fault of the receiving party; or (c) is obtained by the receiving party from a\nthird person without breach by such third person of an obligation of confidence with respect to the Confidential Information disclosed.\nNotwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing exceptions merely because such\ninformation is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination\nof features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the\npossession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of\nthe receiving party. The receiving party may disclose the Confidential Information of the other party to the extent required pursuant to the lawful\norder of a government agency or disclosure is required by operation of the law, provided that the party to make such disclosure provides the other\nparty with prior written notice in order to permit the other party to seek confidential treatment of such information.\n5. Handling of Information and Materials. Confidential Information will not be reproduced in any form, manner or medium except as required\nto accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the other party by either party will remain the\nproperty of the disclosing party or its affiliate, as applicable, and will contain any and all confidential or proprietary notices or legends which\nappear on the original, unless otherwise authorized in writing by the other party. Upon termination or expiration of this Agreement, or upon\nwritten request of the other party, the receiving party will either promptly return to such other party or destroy, at such other party’s option, all\ndocuments and other tangible materials representing such other party’s Confidential Information (including summaries, notes, memoranda and\nabstracts) and all copies thereof; provided, however, that the receiving party may retain one copy of the other party’s Confidential Information\nfor purposes of compliance with the terms of this Agreement. For the avoidance of doubt, the receiving party shall not be expected to purge any\ndisclosing party’s Confidential Information stored in its electronic archive system and such Confidential Information shall be subject to the\nconfidentiality and non-use obligations imposed under this Agreement.\n6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement is intended to amount to or implies any transfer,\nlicense or other grant of rights in relation to the Confidential Information owned or used by the other party. Neither party will make, have made,\nuse or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the other party.\n7. Term and Termination. This Agreement will terminate two (2) years after the Effective Date. The receiving party’s obligations under this\nAgreement will survive termination of this Agreement for a period of five (5) years after such termination and will be binding upon the receiving\nparty’s heirs, successors and assigns after such termination or expiration.\n8. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth below (unless either\nprovides written notice of a different address) and will be deemed given: (a) upon delivery if sent by facsimile or by overnight courier; or\n(b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.\n9. Use of Names. Except as may be required by law, each party further agrees not to use the name, trademark, service mark, logo, or other\nidentifying characteristic (“Name”) of the other party or any of its affiliates or any of their respective trustees, directors, officers, staff members,\nemployees, students or\nPage|2of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\nagents in any advertising, promotional or sales literature, publicity or in any document employed to obtain funds or financing without the prior\nwritten approval of the party or individual whose Name is to be used. This Section 9 shall survive any termination or expiration of this\nAgreement.\n10. Rule 10-b5 Limitations. The receiving party acknowledges, on behalf of itself and any of its affiliates, personnel or agents, that the United\nStates securities laws prohibit any person who has material non-public information about a company or its securities from purchasing or selling\nsecurities of such company, or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities. The receiving party covenants to refrain from purchasing or selling\nsecurities of the disclosing party and from communicating all non-public information about the disclosing party or its securities in violation of\nsuch securities laws.\n11. Securities Transactions. Each party agrees that, for a period of five (5) years from the date of this Agreement, neither party or its affiliates\nwill, without the prior written consent of the Board of Directors of the “applicable party”: (i) acquire, offer to acquire, or agree to acquire,\ndirectly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the applicable\nparty or any subsidiary thereof, or of any successor to or person in control of the applicable party, or any assets of the applicable party or any\nsubsidiary or division thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any\n“solicitation” of “proxies” (as such terms are used in the rules of the Securities Exchange Commission) to vote, or seek to advise or influence any\nperson or entity with respect to the voting of, any voting securities of the applicable party; (iii) make any public announcement with respect to, or\nsubmit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving the applicable party or its securities or\nassets; (iv) form, join or in any way participate in a “group” (as defined in Section 13 (d)(3), Securities Exchange Act of 1934, as amended) in\nconnection with any of the foregoing; or (v) request the applicable party directly or indirectly, to amend or waive any provision of this paragraph.\n12. Employment Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, neither party shall, without the prior\nwritten consent of the other party, directly solicit the employment of any person who is employed by the other party and was directly involved\nwith the activities connected with this Agreement. The provisions of this section shall not apply with respect to either party’s employees who\nseek employment from the other party on their own initiative, such as, but not limited to, in response to a party’s general vacancy announcement\nor advertisement.\n13. General.\na) Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to the subject matter of this\nAgreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The\nheadings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof or affect the\nconstruction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified\nby either party, unless such waiver, amendment or modification is made in writing and signed by both parties.\nb) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California U.S.A.,\nwithout reference to conflict of laws principles or any rule applying the law of another jurisdiction. Any action, matter or lawsuit\narising from or related to this Agreement shall be brought exclusively in California, and each party hereby consents to this\njurisdiction unless otherwise agreed upon in writing by the parties. Each party acknowledges that money damages is not an adequate\nremedy for a breach or potential breach of the terms of this Agreement and hereby agrees that the other party will be entitled to seek\ninjunctive or other equitable relief under this Agreement, as well as such further relief, rights and remedies as may be granted at law\nor equity by a court of competent jurisdiction.\nPage|3of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\nc) Unenforceability / Invalidity. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such\nunenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed\nand interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law\nor applicable court decisions.\nd) Assignment. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of\nthe other party.\ne) No Export Rights. Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this\nAgreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of\nexport requires an export license or other governmental approval without first obtaining such license or approval.\nf) Signatures. Authenticated electronic signatures (e.g . facsimile, scanned) will have the same legal effect as original signatures.\n[remainder of this page intentionally left blank]\nPage|4of5\nMUTUAL NON-DISCLOSURE AGREEMENT\nIN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of\nthe Effective Date. Each individual signing for a corporate entity hereby personally warrants his or her legal authority to bind that entity and its\naffiliates.\nAVANIR PHARMACEUTICALS, INC.\nOTSUKA PHARMACEUTICAL CO., LTD.\nBy: /s/ Gregory J. Flesher\nBy: /s/ Michael Levy\nName: Gregory J. Flesher\nName: Michael Levy\nTitle: CBO\nTitle: EVP, OPBC\nAddress:\n20 Enterprise, Suite 200\nAliso Viejo, California 92656\nATTN: Gregory J. Flesher, CBO & SVP\nAddress:\n2-9, KANDA TSUKASA-MACHI,\nCHIYODA-KU, TOKYO 101-8535, JAPAN\nPage|5of5	EX-99.D.2 11 d837450dex99d2.htm EX-99.D.2\nExhibit (d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), entered into as of MAY 13, 2013 (the “Effective Date”),\ngoverns the disclosure of information by and between AVANIR PHARMACEUTICALS, INC., a Delaware corporation, with offices located at 20\nEnterprise, Suite 200, Aliso Viejo, California, 92656, and OTSUKA PHARMACEUTICAL CO. LTD. a JAPANESE CORPORATION, with offices\nlocated at 2-9, KANDA TSUKASA-MACHI, CHIYODA-KU, TOKYO 101-8535, JAPAN (each a “party” and sometimes collectively referred to as\nthe “parties” to this Agreement).\n1. Purpose. This Agreement is made to define the terms and conditions under which any confidential information will be protected by and\ndisclosed between the parties during the term of this Agreement, for the sole purpose of evaluating a global research and development, and\ncommercial partnership, for NUEDEXTA and/or its compound AVP-786 (the “Purpose”).\n2. Confidential Information. As used herein, “Confidential Information” means, with respect to each party, any and all technical, business and\nfinancial information, including third party information, relating to the disclosing party or any of its affiliates that is furnished or disclosed, in\nwhatever form or medium, provided that (i) in the case of information provided in tangible form or by electronic media, it is marked with, or\naccompanied by, the legend “CONFIDENTIAL” (or other similar marking conveying the same intent); (ii) in the case of information disclosed\nby visual display or orally, it is identified as confidential when revealed and summarized in a writing so marked, referencing the date and type of\ninformation disclosed, delivered to the receiving party within thirty(30) days of such disclosure, before or after the Effective Date. “Confidential\nInformation” includes but is not limited to: (a) patents, patent applications; (b) trade secrets; (c) design rights, trademarks, copyrights, database\nrights and other intellectual property rights; and (d) other proprietary information, ideas, concepts, chemical compounds, assays, biological\nmaterials, gene sequences, cell lines, samples, data, techniques, sketches, drawings, works of authorship, models, inventions, source code, know-\nhow, processes, operations, programs, apparatuses, equipment, and formulae related to the current, future, and proposed products and services of\neach of the parties, and including, without limitation, their respective information concerning research, experimental work, clinical testing,\nregulatory information, development, design details and specifications, engineering, financial information, procurement requirements,\npurchasing, manufacturing, customer lists, investors, patients, employees, business and contractual relationships, business forecasts, analyst\nreports, sales and merchandising, marketing plans and any additional non-public information the disclosing party or any of its affiliates provides.\n3. Obligations. Each party agrees to disclose to the other only that Confidential Information that is reasonably necessary to enable the receiving\nparty to complete the Purpose. Each party agrees: (a) to use the other party’s Confidential Information solely for the Purpose stated above and for\nno other reason; (b) to protect the confidentiality of the other party’s Confidential Information; (c) not to disclose any of the other party’s\nConfidential Information to anyone, except those employees, officers, directors, consultants or other authorized representatives, of the receiving\nparty or its affiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are\notherwise bound by confidentiality obligations at least as restrictive as those contained herein (collectively, the “Authorized Representative”);\n(d) to notify appropriately such Authorized Representative that the disclosure is made in confidence and to require them to keep the same in\nconfidence in accordance with the terms and conditions of this Agreement, and to enforce those terms and conditions; and (e) if directed, to limit\nas directed the number of copies made of the other party’s Confidential Information, Each party agrees to immediately notify the other upon\ndiscovery of any loss or unauthorized disclosure of the Confidential Information of the other party, and to remedy any such loss or unauthorized\ndisclosure as reasonably requested by the disclosing party. The receiving party shall provide a list of all recipients of the disclosing party’s\nConfidential Information upon request within ten (10) days of such request.\nPage| 1of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\n4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that: (a) the receiving\nparty can show is already known to the receiving party prior to the other party’s or its affiliate’s disclosure as evidenced by contemporaneous\nwritten evidence; (b) is or becomes publicly available through no fault of the receiving party; or (c) is obtained by the receiving party from a\nthird person without breach by such third person of an obligation of confidence with respect to the Confidential Information disclosed.\nNotwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing exceptions merely because such\ninformation is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination\nof features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the\npossession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of\nthe receiving party. The receiving party may disclose the Confidential Information of the other party to the extent required pursuant to the lawful\norder of a government agency or disclosure is required by operation of the law, provided that the party to make such disclosure provides the other\nparty with prior written notice in order to permit the other party to seek confidential treatment of such information.\n5. Handling of Information and Materials. Confidential Information will not be reproduced in any form, manner or medium except as required\nto accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the other party by either party will remain the\nproperty of the disclosing party or its affiliate, as applicable, and will contain any and all confidential or proprietary notices or legends which\nappear on the original, unless otherwise authorized in writing by the other party. Upon termination or expiration of this Agreement, or upon\nwritten request of the other party, the receiving party will either promptly return to such other party or destroy, at such other party’s option, all\ndocuments and other tangible materials representing such other party’s Confidential Information (including summaries, notes, memoranda and\nabstracts) and all copies thereof; provided, however, that the receiving party may retain one copy of the other party’s Confidential Information\nfor purposes of compliance with the terms of this Agreement. For the avoidance of doubt, the receiving party shall not be expected to purge any\ndisclosing party’s Confidential Information stored in its electronic archive system and such Confidential Information shall be subject to the\nconfidentiality and non-use obligations imposed under this Agreement.\n6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement is intended to amount to or implies any transfer,\nlicense or other grant of rights in relation to the Confidential Information owned or used by the other party. Neither party will make, have made,\nuse or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the other party.\n7. Term and Termination. This Agreement will terminate two (2) years after the Effective Date. The receiving party’s obligations under this\nAgreement will survive termination of this Agreement for a period of five (5) years after such termination and will be binding upon the receiving\nparty’s heirs, successors and assigns after such termination or expiration.\n8. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth below (unless either\nprovides written notice of a different address) and will be deemed given: (a) upon delivery if sent by facsimile or by overnight courier; or\n(b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.\n9. Use of Names. Except as may be required by law, each party further agrees not to use the name, trademark, service mark, logo, or other\nidentifying characteristic (“Name”) of the other party or any of its affiliates or any of their respective trustees, directors, officers, staff members,\nemployees, students or\nPage| 20of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\nagents in any advertising, promotional or sales literature, publicity or in any document employed to obtain funds or financing without the prior\nwritten approval of the party or individual whose Name is to be used. This Section 9 shall survive any termination or expiration of this\nAgreement.\n10. Rule 10-b5 Limitations. The receiving party acknowledges, on behalf of itself and any of its affiliates, personnel or agents, that the United\nStates securities laws prohibit any person who has material non-public information about a company or its securities from purchasing or selling\nsecurities of such company, or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities. The receiving party covenants to refrain from purchasing or selling\nsecurities of the disclosing party and from communicating all non-public information about the disclosing party or its securities in violation of\nsuch securities laws.\n11. Securities Transactions. Each party agrees that, for a period of five (5) years from the date of this Agreement, neither party or its affiliates\nwill, without the prior written consent of the Board of Directors of the “applicable party”: (i) acquire, offer to acquire, or agree to acquire,\ndirectly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the applicable\nparty or any subsidiary thereof, or of any successor to or person in control of the applicable party, or any assets of the applicable party or any\nsubsidiary or division thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any\n“solicitation” of “proxies” (as such terms are used in the rules of the Securities Exchange Commission) to vote, or seek to advise or influence any\nperson or entity with respect to the voting of, any voting securities of the applicable party; (iii) make any public announcement with respect to, or\nsubmit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving the applicable party or its securities or\nassets; (iv) form, join or in any way participate in a “group” (as defined in Section 13 (d)(3), Securities Exchange Act of 1934, as amended) in\nconnection with any of the foregoing; or (v) request the applicable party directly or indirectly, to amend or waive any provision of this paragraph.\n12. Employment Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, neither party shall, without the prior\nwritten consent of the other party, directly solicit the employment of any person who is employed by the other party and was directly involved\nwith the activities connected with this Agreement. The provisions of this section shall not apply with respect to either party’s employees who\nseek employment from the other party on their own initiative, such as, but not limited to, in response to a party’s general vacancy announcement\nor advertisement.\n13. General.\na) Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to the subject matter of this\nAgreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The\nheadings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof or affect the\nconstruction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified\nby either party, unless such waiver, amendment or modification is made in writing and signed by both parties.\nb)  Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California U.S.A.,\nwithout reference to conflict of laws principles or any rule applying the law of another jurisdiction. Any action, matter or lawsuit\narising from or related to this Agreement shall be brought exclusively in California, and each party hereby consents to this\njurisdiction unless otherwise agreed upon in writing by the parties. Each party acknowledges that money damages is not an adequate\nremedy for a breach or potential breach of the terms of this Agreement and hereby agrees that the other party will be entitled to seek\ninjunctive or other equitable relief under this Agreement, as well as such further relief, rights and remedies as may be granted at law\nor equity by a court of competent jurisdiction.\nPage| 3of 5\n<)\nd)\nf)\nMUTUAL NON-DISCLOSURE AGREEMENT\nUnenforceability / Invalidity. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such\nunenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed\nand interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law\nor applicable court decisions.\nAssignment. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of\nthe other party.\nNo Export Rights. Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this\nAgreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of\nexport requires an export license or other governmental approval without first obtaining such license or approval.\nSignatures. Authenticated electronic signatures (e.g. facsimile, scanned) will have the same legal effect as original signatures.\n[remainder of this page intentionally left blank]\nPage| 40f 5\fMUTUAL NON-DISCLOSURE AGREEMENT\nIN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of the Effective Date. Each individual signing for a corporate entity hereby personally warrants his or her legal authority to bind that entity and its affiliates.\nAVANIR PHARMACEUTICALS, INC.\nBy:  /s/ Gregory J. Flesher\nName: Gregory J. Flesher\nTitle: CBO\nAddress:\n20 Enterprise, Suite 200\nAliso Viejo, California 92656\nATTN: Gregory J. Flesher, CBO & SVP\nOTSUKA PHARMACEUTICAL CO., LTD.\nBy: /s/ Michael Levy\nName: Michael Levy\nTitle: EVP, OPBC\nAddress:\n2-9, KANDA TSUKASA-MACHI,\nCHIYODA-KU, TOKYO 101-8535, JAPAN\nPage| 5of 5	EX-99.D.2 11 d837450dex99d2.htm EX-99.D.2\nExhibit (d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this "Agreement"), entered into as of May 13, 2013 (the "Effective Date"),\ngoverns\nthe\ndisclosure of information by and between AVANIR PHARMACEUTICALS, INC., a Delaware corporation, with offices located at 20\nEnterprise, Suite 200, Aliso Viejo, California, 92656, and OTSUKA PHARMACEUTICAL Co. LTD. a JAPANESE CORPORATION, with offices\nlocated at 2-9, KANDA TSUKASA-MACHI, CHIYODA-KU, TOKYO 101-8535, JAPAN (each a "party" and sometimes collectively referred to as\nthe "parties" to this Agreement).\n1. Purpose. This Agreement is made to define the terms and conditions under which any confidential information will be protected by and\ndisclosed between the parties during the term of this Agreement, for the sole purpose of evaluating a global research and development, and\ncommercial partnership, for NUEDEXTA and/or its compound AVP-786 (the "Purpose").\n2. Confidential Information. As used herein, "Confidential Information" means, with respect to each party, any and all technical, business and\nfinancial information, including third party information, relating to the disclosing party or any of its affiliates that is furnished or disclosed, in\nwhatever form or medium, provided that (i) in the case of information provided in tangible form or by electronic media, it is marked with, or\naccompanied by, the legend "CONFIDENTIAL" (or other similar marking conveying the same intent); (ii) in the case of information disclosed\nby visual display or orally, it is identified as confidential when revealed and summarized in a writing so marked, referencing the date and type of\ninformation disclosed, delivered to the receiving party within thirty(30) days of such disclosure, before or after the Effective Date. "Confidential\nInformation" includes but is not limited to: (a) patents, patent applications; (b) trade secrets; (c) design rights, trademarks, copyrights, database\nrights and other intellectual property rights; and (d) other proprietary information, ideas, concepts, chemical compounds, assays, biological\nmaterials, gene sequences, cell lines, samples, data, techniques, sketches, drawings, works of authorship, models, inventions, source code, know-\nhow, processes, operations, programs, apparatuses, equipment, and formulae related to the current, future, and proposed products and services of\neach of the parties, and including, without limitation, their respective information concerning research, experimental work, clinical testing,\nregulatory information, development, design details and specifications, engineering, financial information, procurement requirements,\npurchasing, manufacturing, customer lists, investors, patients, employees, business and contractual relationships, business forecasts, analyst\nreports, sales and merchandising, marketing plans and any additional non-public information the disclosing party or any of its affiliates provides.\n3. Obligations. Each party agrees to disclose to the other only that Confidentia Information that is reasonably necessary to enable the receiving\nparty to complete the Purpose. Each party agrees: (a) to use the other party's Confidential Information solely for the Purpose stated above and\nfor\nno other reason; (b) to protect the confidentiality of the other party's Confidential Information; (c) not to disclose any of the other party's\nConfidential Information to anyone, except those employees, officers, directors, consultants or other authorized representatives, of the receiving\nparty or its affiliates who have a "need to know" the information for the Purpose and who have signed confidentiality agreements or are\notherwise\nbound\nby\nconfidentiality\nobligations\nat\nleast\nas\nrestrictive\nas\nthose\ncontained\nherein\n(collectively,\nthe\n"Authorized\nRepresentative");\n(d) to notify appropriately such Authorized Representative that the disclosure is made in confidence and to require them to keep the same in\nconfidence in accordance with the terms and conditions of this Agreement, and to enforce those terms and conditions; and (e) if directed, to limit\nas directed the number of copies made of the other party's Confidentia Information, Each party agrees to immediately notify the other upon\ndiscovery of any loss or unauthorized disclosure of the Confidential Information of the other party, and to remedy any such loss or unauthorized\ndisclosure as reasonably requested by the disclosing party. The receiving party shall provide a list of all recipients of the disclosing party's\nConfidential Information upon request within ten (10) days of such request.\nPage 1 of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\n4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that: (a) the receiving\nparty can show is already known to the receiving party prior to the other party's or its affiliate's disclosure as evidenced by contemporaneous\nwritten evidence; (b) is or becomes publicly available through no fault of the receiving party; or (c) is obtained by the receiving party from a\nthird person without breach by such third person of an obligation of confidence with respect to the Confidential Information disclosed.\nNotwithstanding the foregoing, (i) any Confidentia Information shall not be deemed to be within the foregoing exceptions merely because such\ninformation is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination\nof features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the\npossession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of\nthe receiving party. The receiving party may disclose the Confidential Information of the other party to the extent required pursuant to the lawful\norder of a government agency or disclosure is required by operation of the law, provided that the party to make such disclosure provides the other\nparty with prior written notice in order to permit the other party to seek confidential treatment of such information.\n5.\nHandling of Information and Materials. Confidential Information will not be reproduced in any form, manner or medium except as required\nto accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the other party by either party will remain the\nproperty of the disclosing party or its affiliate, as applicable, and will contain any and all confidential or proprietary notices or legends which\nappear on the original, unless otherwise authorized in writing by the other party. Upon termination or expiration of this Agreement, or upon\nwritten request of the other party, the receiving party will either promptly return to such other party or destroy, at such other party's option, all\ndocuments and other tangible materials representing such other party's Confidential Information (including summaries, notes, memoranda and\nabstracts) and all copies thereof; provided, however, that the receiving party may retain one copy of the other party's Confidential Information\nfor purposes of compliance with the terms of this Agreement. For the avoidance of doubt, the receiving party shall not be expected to purge\nany\ndisclosing party's Confidential Information stored in its electronic archive system and such Confidential Information shall be subject to the\nconfidentiality and non-use obligations imposed under this Agreement.\n6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement is intended to amount to or implies any transfer,\nlicense or other grant of rights in relation to the Confidential Information owned or used by the other party. Neither party will make, have made,\nuse or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the other party.\n7. Term and Termination. This Agreement will terminate two (2) years after the Effective Date. The receiving party's obligations under this\nAgreement will survive termination of this Agreement for a period of five (5) years after such termination and will be binding upon the receiving\nparty's heirs, successors and assigns after such termination or expiration.\n8. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth below (unless either\nprovides written notice of a different address) and will be deemed given: (a) upon delivery if sent by facsimile or by overnight courier; or\n(b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.\n9. Use of Names. Except as may be required by law, each party further agrees not to use the name, trademark, service mark, logo, or other\nidentifying characteristic ("Name") of the other party or any of its affiliates or any of their respective trustees, directors, officers, staff members,\nemployees, students or\nPage\n2 of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\nagents in any advertising, promotional or sales literature, publicity or in any document employed to obtain funds or financing without the prior\nwritten approval of the party or individual whose Name is to be used. This Section 9 shall survive any termination or expiration of this\nAgreement.\n10. Rule 10-b5 Limitations. The receiving party acknowledges, on behalf of itself and any of its affiliates, personnel or agents, that the United\nStates securities laws prohibit any person who has material non-public information about a company or its securities from purchasing or selling\nsecurities\nof\nsuch\ncompany,\nor\nfrom\ncommunicating\nsuch\ninformation\nto\nany\nother\nperson\nunder\ncircumstances\nin\nwhich\nit\nis\nreasonably\nforeseeable that such person is likely to purchase or sell such securities. The receiving party covenants to refrain from purchasing or selling\nsecurities of the disclosing party and from communicating all non-public information about the disclosing party or its securities in violation of\nsuch securities laws.\n11. Securities Transactions. Each party agrees that, for a period of five (5) years from the date of this Agreement, neither party or its affiliates\nwill, without the prior written consent of the Board of Directors of the "applicable party": (i) acquire, offer to acquire, or agree to acquire,\ndirectly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the applicable\nparty or any subsidiary thereof, or of any successor to or person in control of the applicable party, or any assets of the applicable party or any\nsubsidiary or division thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any\n"solicitation" of "proxies" (as such terms are used in the rules of the Securities Exchange Commission) to vote, or seek to advise or influence any\nperson or entity with respect to the voting of, any voting securities of the applicable party; (iii) make any public announcement with respect to, or\nsubmit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving the applicable party or its securities\nor\nassets; (iv) form, join or in any way participate in a "group" (as defined in Section 13 (d)(3), Securities Exchange Act of 1934, as amended) in\nconnection with any of the foregoing; or (v) request the applicable party directly or indirectly, to amend or waive any provision of this paragraph.\n12. Employment Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, neither party shall, without the prior\nwritten\nconsent\nof the other party, directly solicit the employment of any person who is employed by the other party and was directly involved\nwith the activities connected with this Agreement. The provisions of this section shall not apply with respect to either party's employees who\nseek employment from the other party on their own initiative, such as, but not limited to, in response to a party's general vacancy announcement\nor advertisement.\n13. General.\na)\nEntire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to the subject matter of this\nAgreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The\nheadings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof or affect the\nconstruction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified\nby either party, unless such waiver, amendment or modification is made in writing and signed by both parties.\nb)\nGoverning Law. This Agreement will be governed by and construed in accordance with the laws of the State of California U.S.A.,\nwithout reference to conflict of laws principles or any rule applying the law of another jurisdiction Any action, matter or lawsuit\narising from or related to this Agreement shall be brought exclusively in California, and each party hereby consents to this\njurisdiction unless otherwise agreed upon in writing by the parties. Each party acknowledges that money damages is not an adequate\nremedy for a breach or potential breach of the terms of this Agreement and hereby agrees that the other party will be entitled to seek\ninjunctive or other equitable relief under this Agreement, as well as such further relief, rights and remedies as may be granted at law\nor equity by a court of competent jurisdiction.\nPage\n3 of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\nc)\nUnenforceability / Invalidity. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such\nunenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed\nand interpreted SO as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law\nor applicable court decisions.\nd) Assignment. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of\nthe other party.\ne)\nNo Export Rights. Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this\nAgreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of\nexport requires an export license or other governmental approval without first obtaining such license or approval.\nf)\nSignatures. Authenticated electronic signatures (e.g. facsimile, scanned) will have the same legal effect as original signatures.\n[remainder of this page intentionally left blank]\nPage 4 of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\nIN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as\nof\nthe Effective Date. Each individual signing for a corporate entity hereby personally warrants his or her legal authority to bind that entity and its\naffiliates.\nAVANIR PHARMACEUTICALS, INC.\nOTSUKA PHARMACEUTICAL Co., LTD.\nBy:\n/s/ Gregory J. Flesher\nBy:\n/s/ Michael Levy\nName: Gregory J. Flesher\nName: Michael Levy\nTitle: CBO\nTitle: EVP, OPBC\nAddress:\nAddress:\n20 Enterprise, Suite 200\n2-9, KANDA TSUKASA-MACHI,\nAliso Viejo, California 92656\nCHIYODA-KU, TOKYO 101-8535, JAPAN\nATTN: Gregory J. Flesher, CBO & SVP\nPage I 5 of 5	EX-99.D.2 11 d837450dex99d2.htm EX-99.D.2\nExhibit (d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), entered into as of MAY 13, 2013 (the “Effective Date”),\ngoverns the disclosure of information by and between AVANIR PHARMACEUTICALS, INC., a Delaware corporation, with offices located at 20\nEnterprise, Suite 200, Aliso Viejo, California, 92656, and OTSUKA PHARMACEUTICAL CO. LTD. a JAPANESE CORPORATION, with offices\nlocated at 2-9, KANDA TSUKASA-MACHI, CHIYODA-KU, TOKYO 101-8535, JAPAN (each a “party” and sometimes collectively referred to as\nthe “parties” to this Agreement).\n1. Purpose. This Agreement is made to define the terms and conditions under which any confidential information will be protected by and\ndisclosed between the parties during the term of this Agreement, for the sole purpose of evaluating a global research and development, and\ncommercial partnership, for NUEDEXTA and/or its compound AVP-786 (the “Purpose”).\n2. Confidential Information. As used herein, “Confidential Information” means, with respect to each party, any and all technical, business and\nfinancial information, including third party information, relating to the disclosing party or any of its affiliates that is furnished or disclosed, in\nwhatever form or medium, provided that (i) in the case of information provided in tangible form or by electronic media, it is marked with, or\naccompanied by, the legend “CONFIDENTIAL” (or other similar marking conveying the same intent); (ii) in the case of information disclosed\nby visual display or orally, it is identified as confidential when revealed and summarized in a writing so marked, referencing the date and type of\ninformation disclosed, delivered to the receiving party within thirty(30) days of such disclosure, before or after the Effective Date. “Confidential\nInformation” includes but is not limited to: (a) patents, patent applications; (b) trade secrets; (c) design rights, trademarks, copyrights, database\nrights and other intellectual property rights; and (d) other proprietary information, ideas, concepts, chemical compounds, assays, biological\nmaterials, gene sequences, cell lines, samples, data, techniques, sketches, drawings, works of authorship, models, inventions, source code, know-\nhow, processes, operations, programs, apparatuses, equipment, and formulae related to the current, future, and proposed products and services of\neach of the parties, and including, without limitation, their respective information concerning research, experimental work, clinical testing,\nregulatory information, development, design details and specifications, engineering, financial information, procurement requirements,\npurchasing, manufacturing, customer lists, investors, patients, employees, business and contractual relationships, business forecasts, analyst\nreports, sales and merchandising, marketing plans and any additional non-public information the disclosing party or any of its affiliates provides.\n3. Obligations. Each party agrees to disclose to the other only that Confidential Information that is reasonably necessary to enable the receiving\nparty to complete the Purpose. Each party agrees: (a) to use the other party’s Confidential Information solely for the Purpose stated above and for\nno other reason; (b) to protect the confidentiality of the other party’s Confidential Information; (c) not to disclose any of the other party’s\nConfidential Information to anyone, except those employees, officers, directors, consultants or other authorized representatives, of the receiving\nparty or its affiliates who have a “need to know” the information for the Purpose and who have signed confidentiality agreements or are\notherwise bound by confidentiality obligations at least as restrictive as those contained herein (collectively, the “Authorized Representative”);\n(d) to notify appropriately such Authorized Representative that the disclosure is made in confidence and to require them to keep the same in\nconfidence in accordance with the terms and conditions of this Agreement, and to enforce those terms and conditions; and (e) if directed, to limit\nas directed the number of copies made of the other party’s Confidential Information, Each party agrees to immediately notify the other upon\ndiscovery of any loss or unauthorized disclosure of the Confidential Information of the other party, and to remedy any such loss or unauthorized\ndisclosure as reasonably requested by the disclosing party. The receiving party shall provide a list of all recipients of the disclosing party’s\nConfidential Information upon request within ten (10) days of such request.\nPage|1of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\n4. Exceptions. The obligations and restrictions imposed by this Agreement will not apply to any Confidential Information that: (a) the receiving\nparty can show is already known to the receiving party prior to the other party’s or its affiliate’s disclosure as evidenced by contemporaneous\nwritten evidence; (b) is or becomes publicly available through no fault of the receiving party; or (c) is obtained by the receiving party from a\nthird person without breach by such third person of an obligation of confidence with respect to the Confidential Information disclosed.\nNotwithstanding the foregoing, (i) any Confidential Information shall not be deemed to be within the foregoing exceptions merely because such\ninformation is embraced by more general information in the public domain or in the possession of the receiving party, and (ii) any combination\nof features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the\npossession of the receiving party, but only if the combination itself and its principle of operation are in the public domain or in the possession of\nthe receiving party. The receiving party may disclose the Confidential Information of the other party to the extent required pursuant to the lawful\norder of a government agency or disclosure is required by operation of the law, provided that the party to make such disclosure provides the other\nparty with prior written notice in order to permit the other party to seek confidential treatment of such information.\n5. Handling of Information and Materials. Confidential Information will not be reproduced in any form, manner or medium except as required\nto accomplish the Purpose of this Agreement. Any reproduction of any Confidential Information of the other party by either party will remain the\nproperty of the disclosing party or its affiliate, as applicable, and will contain any and all confidential or proprietary notices or legends which\nappear on the original, unless otherwise authorized in writing by the other party. Upon termination or expiration of this Agreement, or upon\nwritten request of the other party, the receiving party will either promptly return to such other party or destroy, at such other party’s option, all\ndocuments and other tangible materials representing such other party’s Confidential Information (including summaries, notes, memoranda and\nabstracts) and all copies thereof; provided, however, that the receiving party may retain one copy of the other party’s Confidential Information\nfor purposes of compliance with the terms of this Agreement. For the avoidance of doubt, the receiving party shall not be expected to purge any\ndisclosing party’s Confidential Information stored in its electronic archive system and such Confidential Information shall be subject to the\nconfidentiality and non-use obligations imposed under this Agreement.\n6. No Other Rights. The parties recognize and agree that nothing contained in this Agreement is intended to amount to or implies any transfer,\nlicense or other grant of rights in relation to the Confidential Information owned or used by the other party. Neither party will make, have made,\nuse or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the other party.\n7. Term and Termination. This Agreement will terminate two (2) years after the Effective Date. The receiving party’s obligations under this\nAgreement will survive termination of this Agreement for a period of five (5) years after such termination and will be binding upon the receiving\nparty’s heirs, successors and assigns after such termination or expiration.\n8. Notice. Any notice to be given hereunder by either party to the other will be in writing addressed to the address set forth below (unless either\nprovides written notice of a different address) and will be deemed given: (a) upon delivery if sent by facsimile or by overnight courier; or\n(b) three (3) days after deposit in the mail if sent by pre-paid, certified mail, return receipt requested mail.\n9. Use of Names. Except as may be required by law, each party further agrees not to use the name, trademark, service mark, logo, or other\nidentifying characteristic (“Name”) of the other party or any of its affiliates or any of their respective trustees, directors, officers, staff members,\nemployees, students or\nPage|2of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\nagents in any advertising, promotional or sales literature, publicity or in any document employed to obtain funds or financing without the prior\nwritten approval of the party or individual whose Name is to be used. This Section 9 shall survive any termination or expiration of this\nAgreement.\n10. Rule 10-b5 Limitations. The receiving party acknowledges, on behalf of itself and any of its affiliates, personnel or agents, that the United\nStates securities laws prohibit any person who has material non-public information about a company or its securities from purchasing or selling\nsecurities of such company, or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities. The receiving party covenants to refrain from purchasing or selling\nsecurities of the disclosing party and from communicating all non-public information about the disclosing party or its securities in violation of\nsuch securities laws.\n11. Securities Transactions. Each party agrees that, for a period of five (5) years from the date of this Agreement, neither party or its affiliates\nwill, without the prior written consent of the Board of Directors of the “applicable party”: (i) acquire, offer to acquire, or agree to acquire,\ndirectly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to acquire any voting securities of the applicable\nparty or any subsidiary thereof, or of any successor to or person in control of the applicable party, or any assets of the applicable party or any\nsubsidiary or division thereof or of any such successor or controlling person; (ii) make, or in any way participate in, directly or indirectly, any\n“solicitation” of “proxies” (as such terms are used in the rules of the Securities Exchange Commission) to vote, or seek to advise or influence any\nperson or entity with respect to the voting of, any voting securities of the applicable party; (iii) make any public announcement with respect to, or\nsubmit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving the applicable party or its securities or\nassets; (iv) form, join or in any way participate in a “group” (as defined in Section 13 (d)(3), Securities Exchange Act of 1934, as amended) in\nconnection with any of the foregoing; or (v) request the applicable party directly or indirectly, to amend or waive any provision of this paragraph.\n12. Employment Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, neither party shall, without the prior\nwritten consent of the other party, directly solicit the employment of any person who is employed by the other party and was directly involved\nwith the activities connected with this Agreement. The provisions of this section shall not apply with respect to either party’s employees who\nseek employment from the other party on their own initiative, such as, but not limited to, in response to a party’s general vacancy announcement\nor advertisement.\n13. General.\na) Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to the subject matter of this\nAgreement. This Agreement supersedes all previous agreements between the parties relating to the subject matter hereof. The\nheadings to sections of this Agreement are inserted for convenience only and will not be deemed a part hereof or affect the\nconstruction or interpretation of any provision hereof. No provision of this Agreement will be deemed waived, amended or modified\nby either party, unless such waiver, amendment or modification is made in writing and signed by both parties.\nb) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California U.S.A.,\nwithout reference to conflict of laws principles or any rule applying the law of another jurisdiction. Any action, matter or lawsuit\narising from or related to this Agreement shall be brought exclusively in California, and each party hereby consents to this\njurisdiction unless otherwise agreed upon in writing by the parties. Each party acknowledges that money damages is not an adequate\nremedy for a breach or potential breach of the terms of this Agreement and hereby agrees that the other party will be entitled to seek\ninjunctive or other equitable relief under this Agreement, as well as such further relief, rights and remedies as may be granted at law\nor equity by a court of competent jurisdiction.\nPage|3of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\nc) Unenforceability / Invalidity. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such\nunenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed\nand interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law\nor applicable court decisions.\nd) Assignment. Neither party will assign or transfer any rights or obligations under this Agreement without the prior written consent of\nthe other party.\ne) No Export Rights. Neither party will export, directly or indirectly, any technical data acquired from the other pursuant to this\nAgreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of\nexport requires an export license or other governmental approval without first obtaining such license or approval.\nf) Signatures. Authenticated electronic signatures (e.g . facsimile, scanned) will have the same legal effect as original signatures.\n[remainder of this page intentionally left blank]\nPage|4of5\nMUTUAL NON-DISCLOSURE AGREEMENT\nIN WITNESS WHEREOF, duly authorized representatives of the parties have executed this Mutual Non-Disclosure Agreement as of\nthe Effective Date. Each individual signing for a corporate entity hereby personally warrants his or her legal authority to bind that entity and its\naffiliates.\nAVANIR PHARMACEUTICALS, INC.\nOTSUKA PHARMACEUTICAL CO., LTD.\nBy: /s/ Gregory J. Flesher\nBy: /s/ Michael Levy\nName: Gregory J. Flesher\nName: Michael Levy\nTitle: CBO\nTitle: EVP, OPBC\nAddress:\n20 Enterprise, Suite 200\nAliso Viejo, California 92656\nATTN: Gregory J. Flesher, CBO & SVP\nAddress:\n2-9, KANDA TSUKASA-MACHI,\nCHIYODA-KU, TOKYO 101-8535, JAPAN\nPage|5of5
+62cc624d5929ea932a2c1945463e1322.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 11 d268167dex99d2.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) is effective as of October 20, 2011 (“Effective Date”) and is entered into between\nSuccessFactors, Inc., a Delaware corporation, having a place of business at 1500 Fashion Island Boulevard, San Mateo, California,\n94404, USA (“Company”), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf,\nGermany on behalf of itself and its wholly owned subsidiaries, (“SAP”). In consideration of the mutual covenants contained herein, SAP\nand Company, intending to be legally bound hereby, agree to the following:\n1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company\nmay deliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such\nConfidential Information being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”).\n2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives\n(defined below) to the Receiving Party or its Representatives, whether orally, in writing, electronically or in other tangible form, and\nidentified as confidential or proprietary at the time of disclosure by the Disclosing Party or otherwise disclosed in a manner such that a\nreasonable person would understand its confidential nature, including but not limited to, information that is related to: (a) the business\nplans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business\nof any customer or partner of the Disclosing Party; (d) Disclosing Party’s properties, employees, finances, operations; (e) any\ninformation about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable\nconfidentiality obligation to such third party); (f) software and related documentation (“Disclosing Party’s Software”) including the\nfollowing information regarding Disclosing Party’s Software: (i) computer software (object and source codes), programming techniques\nand programming concepts, methods of processing, system designs embodied in Disclosing Party’s Software; and (ii) discoveries,\ninventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications,\ntechniques and processes relating to Disclosing Party’s Software; and (g) product offerings, content partners, product pricing, product\navailability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how,\nimprovements, inventions (whether patentable or not), marketing plans, forecasts and strategies. Where the Confidential Information\nhas not been reduced to written or other tangible form at the time of disclosure, and such disclosure is made orally or visually, the\nDisclosing Party agrees to identify it as confidential or proprietary at the time of disclosure. “Confidential Information” shall be deemed\nto include all notes, analyses, compilations, studies, interpretations or other documents prepared by the Receiving Party or its\nRepresentatives which contain or are based upon, in whole or in part, the information furnished to the receiving party or its\nRepresentatives pursuant hereto.\n3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any\nreproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain\nany and all confidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all\nreasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any\nConfidential Information to any person other than its Representatives who are actively and directly participating in the Evaluation or\nwho otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidential Information for\nany purpose other than in connection with the Evaluation. and (d) shall not disclose to any person (other than those of its\nRepresentatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the\nEvaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including, without\nlimitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information\nhas been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the\nReceiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable\nstandard of care. As used herein. “Representatives” shall mean (i) employees of Receiving Party; (ii) attorneys, accountants, or other\nprofessional business advisors and, additionally, (iii) employees of the Receiving Party and those entities directly or indirectly owned by\nthe Receiving Party, in each case, who shall be informed of the confidential nature of the Confidential Information and shall agree to act\nin accordance with the terms of this Agreement. The Receiving Party shall be responsible for any breach of the terms of this\nAgreement by it or its Representatives.\n4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that:\n(a) is independently developed by Receiving Party without reference to the Confidential Information, or is lawfully received free of\nrestriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public\nwithout breach of this Agreement by Receiving Party; (c) at the time of disclosure to Receiving Party was known to such party free of\nrestriction; or (d) Disclosing Party agrees in writing is free of such restrictions.\nMUTUAL NON-DISCLOSURE AGREEMENT\n5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not\nintended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual\nproperty right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any\nbusiness or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of\nthe other party for purposes substantially similar to those involved herein.\n6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or\nservices similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby\nbreach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar\nto or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any\npurpose the residuals (defined below) resulting from access to or work with Confidential Information disclosed hereunder. The term\n“residuals” means information in non-tangible form which may be retained in the unaided memory by persons who have had access to\nthe Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from\nmemory. Neither party shall have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work\nresulting from the use of residuals. The party using any information that it claims to be residuals will have the burden of proving that the\ninformation constitutes residuals.\n7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or\nregulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the\nEvaluation, unless prohibited by law, the Receiving Party shall provide the Disclosing Party with prompt notice of such request or\nrequirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the\nReceiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process; or\n(iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is\nnot obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the\nReceiving Party or its Representative shall disclose only that portion of the Confidential Information which is legally required to be\ndisclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment.\n8. To the extent that any Confidential Information may Include material subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties\nunderstand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual\nunderstanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such\nmaterial or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All\nConfidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or\nother applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense\ndoctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine\nor any other applicable privilege.\n9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy\n(provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential\nInformation of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in\nhard-copy form or an intangible media, such as electronic mail or computer files) in the Receiving Party’s possession or in the\npossession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek\ndisclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with\nrespect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to\nidentify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems\narchiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the\nDisclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the\nReceiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such\nConfidential Information so archived or backed-up.\n10. Each Party hereto acknowledges that neither it nor its Representatives nor any of the officers, directors, employees, agents or\ncontrolling persons of such Representatives makes any express or implied representation or warranty as to the completeness of the\nConfidential Information.\nMUTUAL NON-DISCLOSURE AGREEMENT\n11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither\nparty shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal,\nterm sheet, letter of intent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the\nconfidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or\nmay not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation,\nnegotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to\nchange (in its sole discretion, at any time and without notice to the other party) the procedures relating to the parties’ consideration of\nthe potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and\nrequesting that the other party return or destroy the Confidential Information as described above). Either party can end the discussions\nat any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive\nagreements is at the sore risk of the party making the decision, even if the other party is aware of or has indicated approval of, such\ndecision.\n12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of\nthe restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other person\nwhen it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n13. In consideration of the Information being furnished to SAP and the Company, each of SAP and the Company hereby agree that,\nuntil twelve (12) months after the date of termination of this Agreement, such party will not solicit for employment with such party or any\nof its subsidiaries, or employ, any of the current officers or employees of the other party with whom such party has had contact during\nthe term of this Agreement and who became known by such party or who was identified to such party as part of the Evaluation under\nthis Agreement. Notwithstanding the foregoing, nothing herein shall restrict or preclude either party from (A) making generalized\nsearches for employees (by use of advertisements in the media, the engagement of search firms or otherwise), (B) continuing its\nordinary course hiring practices that are not targeted specifically at employees of the other party or (C) hiring an employee of the other\nparty who first initiates an employment discussion with such party, so long as such party has not violated the restrictions on solicitation\ncontained in this Agreement.\n14. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties\nagree that until one (1) year after the date of termination of this Agreement, neither party nor any of each party’s affiliates or its\nRepresentatives acting on the party’s behalf will, unless specifically invited in writing by the other party’s Board of Directors or its duly\nauthorized representative: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting\nsecurities or direct or indirect rights to acquire any voting securities, or indebtedness of the other party or any subsidiary thereof, or any\nsuccessor entity; (ii) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the\nSecurities Exchange Act of 1934 (the “34 Act”)) to vote, or seek to advise or influence any person or entity with respect to the voting of,\nany voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any\nmerger, consolidation, stock purchase tender or exchange offer, restructuring or business combination, involving the other party or to\npurchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way\nparticipate in a “group” (as defined in Section 13(d)(3) of the 34 Act) in connection with any of the foregoing; (v) request the other party\nor any of the other party’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public\ndisclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public\nannouncement regarding the possibility of any of the events described in sub-clauses (i) through (v). Notwithstanding anything to the\ncontrary in this paragraph, (1) each party shall be permitted at any time and from time to time to submit to the Chief Executive Officer of\nthe other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that each\nsuch submission is made on a confidential basis and states that the provider does not intend to make a public announcement related to\nsuch submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that the\nreceipt thereof by the other party does not require public disclosure of such submission and (2) no party shall be bound by the\nforegoing restrictions in the event that any person or “group” (as defined in Section 13(d)(3) of the 34 Act) other than such party or its\naffiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise,\nbeneficial ownership of more than 50% of the outstanding voting securities of the other party or assets of the other party or its\nsubsidiaries representing more than 50% of the consolidated earning power of the other party and its subsidiaries and the other party’s\nBoard of Directors has recommended to such other party’s shareholders that such acquisition be approved or (y) enter into an\nagreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving\nthe other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior\nto such transaction, had beneficial ownership of 50% or more of the voting power of the other party would not continue to\nMUTUAL NON-DISCLOSURE AGREEMENT\nbeneficially own by virtue of their exchange or retention of securities of such other party representing at least 50% of the voting power\nof the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party’s\nBoard of Directors has recommended to such other party’s shareholders that such merger, consolidation or similar transaction be\napproved.\n15. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to\nequitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the\nprovisions of this Agreement.\n16. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors,\nemployees, agents or controlling persons of such Representatives makes any express or implied representation or warranty regarding\nthe Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the\nConfidential Information.\n17. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of\nAmerica, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New\nYork law. The parties agree the courts of the State of California shall be the exclusive venue for disputes arising under this Agreement.\nIn the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be\nunenforceable, the remaining portions hereof shall remain in full force and effect.\n18. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder\nin connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the\nevent the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of\nwork product of either party or software license provisions and rights, then this Agreement shall not supersede either party’s rights and\nobligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither Party will\nassign or transfer any rights or obligations under this Agreement without the prior written consent of the other Party. No amendment or\nmodification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the\nparties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed\na subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay\nby either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n19. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such\nparty’s sole discretion upon thirty (30) days written notice to the other party. The provisions herein concerning the disclosure, protection\nand use of Confidential Information, including Sections 3, 4, 7 and 9, shall survive the termination or expiration of this Agreement. The\nnon-solicit and standstill obligations shall remain in effect as provided in Sections 13 or 14, as applicable.\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together\nshall constitute one and the same agreement.\nLOGO	EX-99.(D)(2) 11 d268167dex99d2.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) is effective as of October 20, 2011 (“Effective Date”) and is entered into between\nSuccessFactors, Inc., a Delaware corporation, having a place of business at 1500 Fashion Island Boulevard, San Mateo, California,\n94404, USA (“Company”), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf,\nGermany on behalf of itself and its wholly owned subsidiaries, (“SAP”). In consideration of the mutual covenants contained herein, SAP\nand Company, intending to be legally bound hereby, agree to the following:\n1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company\nmay deliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such\nConfidential Information being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”).\n2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives\n(defined below) to the Receiving Party or its Representatives, whether orally, in writing, electronically or in other tangible form, and\nidentified as confidential or proprietary at the time of disclosure by the Disclosing Party or otherwise disclosed in a manner such that a\nreasonable person would understand its confidential nature, including but not limited to, information that is related to: (a) the business\nplans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business\nof any customer or partner of the Disclosing Party; (d) Disclosing Party’s properties, employees, finances, operations; (e) any\ninformation about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable\nconfidentiality obligation to such third party); (f) software and related documentation (“Disclosing Party’s Software”) including the\nfollowing information regarding Disclosing Party’s Software: (i) computer software (object and source codes), programming techniques\nand programming concepts, methods of processing, system designs embodied in Disclosing Party’s Software; and (ii) discoveries,\ninventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications,\ntechniques and processes relating to Disclosing Party’s Software; and (g) product offerings, content partners, product pricing, product\navailability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how,\nimprovements, inventions (whether patentable or not), marketing plans, forecasts and strategies. Where the Confidential Information\nhas not been reduced to written or other tangible form at the time of disclosure, and such disclosure is made orally or visually, the\nDisclosing Party agrees to identify it as confidential or proprietary at the time of disclosure. “Confidential Information” shall be deemed\nto include all notes, analyses, compilations, studies, interpretations or other documents prepared by the Receiving Party or its\nRepresentatives which contain or are based upon, in whole or in part, the information furnished to the receiving party or its\nRepresentatives pursuant hereto.\n3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any\nreproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain\nany and all confidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all\nreasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any\nConfidential Information to any person other than its Representatives who are actively and directly participating in the Evaluation or\nwho otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidential Information for\nany purpose other than in connection with the Evaluation. and (d) shall not disclose to any person (other than those of its\nRepresentatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the\nEvaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including, without\nlimitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information\nhas been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the\nReceiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable\nstandard of care. As used herein. “Representatives” shall mean (i) employees of Receiving Party; (ii) attorneys, accountants, or other\nprofessional business advisors and, additionally, (iii) employees of the Receiving Party and those entities directly or indirectly owned by\nthe Receiving Party, in each case, who shall be informed of the confidential nature of the Confidential Information and shall agree to act\nin accordance with the terms of this Agreement. The Receiving Party shall be responsible for any breach of the terms of this\nAgreement by it or its Representatives.\n4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that:\n() is independently developed by Receiving Party without reference to the Confidential Information, or is lawfully received free of\nrestriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public\nwithout breach of this Agreement by Receiving Party; (c) at the time of disclosure to Receiving Party was known to such party free of\nrestriction; or (d) Disclosing Party agrees in writing is free of such restrictions.\nMUTUAL NON-DISCLOSURE AGREEMENT\n5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not\nintended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual\nproperty right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any\nbusiness or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of\nthe other party for purposes substantially similar to those involved herein.\n6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or\nservices similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby\nbreach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar\nto or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any\npurpose the residuals (defined below) resulting from access to or work with Confidential Information disclosed hereunder. The term\n“residuals” means information in non-tangible form which may be retained in the unaided memory by persons who have had access to\nthe Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from\nmemory. Neither party shall have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work\nresulting from the use of residuals. The party using any information that it claims to be residuals will have the burden of proving that the\ninformation constitutes residuals.\n7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or\nregulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the\nEvaluation, unless prohibited by law, the Receiving Party shall provide the Disclosing Party with prompt notice of such request or\nrequirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the\nReceiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process; or\n(iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is\nnot obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the\nReceiving Party or its Representative shall disclose only that portion of the Confidential Information which is legally required to be\ndisclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment.\n8. To the extent that any Confidential Information may Include material subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties\nunderstand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual\nunderstanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such\nmaterial or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All\nConfidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or\nother applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense\ndoctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine\nor any other applicable privilege.\n9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy\n(provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential\nInformation of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in\nhard-copy form or an intangible media, such as electronic mail or computer files) in the Receiving Party’s possession or in the\npossession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek\ndisclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with\nrespect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to\nidentify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems\narchiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the\nDisclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the\nReceiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such\nConfidential Information so archived or backed-up.\n10. Each Party hereto acknowledges that neither it nor its Representatives nor any of the officers, directors, employees, agents or\ncontrolling persons of such Representatives makes any express or implied representation or warranty as to the completeness of the\nConfidential Information.\nMUTUAL NON-DISCLOSURE AGREEMENT\n11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither\nparty shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal,\nterm sheet, letter of intent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the\nconfidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or\nmay not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation,\nnegotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to\nchange (in its sole discretion, at any time and without notice to the other party) the procedures relating to the parties’ consideration of\nthe potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and\nrequesting that the other party return or destroy the Confidential Information as described above). Either party can end the discussions\nat any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive\nagreements is at the sore risk of the party making the decision, even if the other party is aware of or has indicated approval of, such\ndecision.\n12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of\nthe restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other person\nwhen it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n13. In consideration of the Information being furnished to SAP and the Company, each of SAP and the Company hereby agree that,\nuntil twelve (12) months after the date of termination of this Agreement, such party will not solicit for employment with such party or any\nof its subsidiaries, or employ, any of the current officers or employees of the other party with whom such party has had contact during\nthe term of this Agreement and who became known by such party or who was identified to such party as part of the Evaluation under\nthis Agreement. Notwithstanding the foregoing, nothing herein shall restrict or preclude either party from (A) making generalized\nsearches for employees (by use of advertisements in the media, the engagement of search firms or otherwise), (B) continuing its\nordinary course hiring practices that are not targeted specifically at employees of the other party or (C) hiring an employee of the other\nparty who first initiates an employment discussion with such party, so long as such party has not violated the restrictions on solicitation\ncontained in this Agreement.\n14. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties\nagree that until one (1) year after the date of termination of this Agreement, neither party nor any of each party’s affiliates or its\nRepresentatives acting on the party’s behalf will, unless specifically invited in writing by the other party’s Board of Directors or its duly\nauthorized representative: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting\nsecurities or direct or indirect rights to acquire any voting securities, or indebtedness of the other party or any subsidiary thereof, or any\nsuccessor entity; (i) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the\nSecurities Exchange Act of 1934 (the “34 Act”)) to vote, or seek to advise or influence any person or entity with respect to the voting of,\nany voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any\nmerger, consolidation, stock purchase tender or exchange offer, restructuring or business combination, involving the other party or to\npurchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way\nparticipate in a “group” (as defined in Section 13(d)(3) of the 34 Act) in connection with any of the foregoing; (v) request the other party\nor any of the other party’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public\ndisclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public\nannouncement regarding the possibility of any of the events described in sub-clauses (i) through (v). Notwithstanding anything to the\ncontrary in this paragraph, (1) each party shall be permitted at any time and from time to time to submit to the Chief Executive Officer of\nthe other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that each\nsuch submission is made on a confidential basis and states that the provider does not intend to make a public announcement related to\nsuch submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that the\nreceipt thereof by the other party does not require public disclosure of such submission and (2) no party shall be bound by the\nforegoing restrictions in the event that any person or “group” (as defined in Section 13(d)(3) of the 34 Act) other than such party or its\naffiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise,\nbeneficial ownership of more than 50% of the outstanding voting securities of the other party or assets of the other party or its\nsubsidiaries representing more than 50% of the consolidated earning power of the other party and its subsidiaries and the other party’s\nBoard of Directors has recommended to such other party’s shareholders that such acquisition be approved or (y) enter into an\nagreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving\nthe other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior\nto such transaction, had beneficial ownership of 50% or more of the voting power of the other party would not continue to\nMUTUAL NON-DISCLOSURE AGREEMENT\nbeneficially own by virtue of their exchange or retention of securities of such other party representing at least 50% of the voting power\nof the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party’s\nBoard of Directors has recommended to such other party’s shareholders that such merger, consolidation or similar transaction be\napproved.\n15. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to\nequitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the\nprovisions of this Agreement.\n16. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors,\nemployees, agents or controlling persons of such Representatives makes any express or implied representation or warranty regarding\nthe Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the\nConfidential Information.\n17. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of\nAmerica, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New\nYork law. The parties agree the courts of the State of California shall be the exclusive venue for disputes arising under this Agreement.\nIn the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be\nunenforceable, the remaining portions hereof shall remain in full force and effect.\n18. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder\nin connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the\nevent the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of\nwork product of either party or software license provisions and rights, then this Agreement shall not supersede either party’s rights and\nobligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither Party will\nassign or transfer any rights or obligations under this Agreement without the prior written consent of the other Party. No amendment or\nmodification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the\nparties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed\na subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay\nby either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n19. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such\nparty’s sole discretion upon thirty (30) days written notice to the other party. The provisions herein concerning the disclosure, protection\nand use of Confidential Information, including Sections 3, 4, 7 and 9, shall survive the termination or expiration of this Agreement. The\nnon-solicit and standstill obligations shall remain in effect as provided in Sections 13 or 14, as applicable.\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together\nshall constitute one and the same agreement.\n».LOGO	EX-99.(D)(2) 11 1268167dex99d2.htn MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement ("Agreement") is effective as of October 20, 2011 ("Effective Date") and is entered into between\nSuccessFactors Inc., a Delaware corporation, having a place of business at 1500 Fashion Island Boulevard, San Mateo, California,\n94404, USA ("Company"), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf,\nGermany on behalf of itself and its wholly owned subsidiaries, ("SAP"). In consideration of the mutual covenants contained herein, SAP\nand Company, intending to be legally bound hereby, agree to the following:\n1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the "Evaluation"), SAP and Company\nmay deliver to each other, upon the execution of this Agreement, Confidentia Information as defined below (the party disclosing\nsuch\nConfidential Information being the "Disclosing Party" and the party receiving such Confidential Information being the "Receiving Party").\n2. As used herein, "Confidential Information" shall mean all information furnished by the Disclosing Party or its Representatives\n(defined below) to the Receiving Party or its Representatives, whether orally, in writing, electronically or in other tangible form, and\nidentified as confidential or proprietary at the time of disclosure by the Disclosing Party or otherwise disclosed in a manner such that a\nreasonable person would understand its confidential nature, including but not limited to, information that is related to: (a) the business\nplans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business\nof any customer or partner of the Disclosing Party; (d) Disclosing Party's properties, employees, finances, operations; (e) any\ninformation about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable\nconfidentiality obligation to such third party); (f) software and related documentation ("Disclosing Party's Software") including the\nfollowing information regarding Disclosing Party's Software (i) computer software (object and source codes), programming techniques\nand programming concepts, methods of processing, system designs embodied in Disclosing Party's Software; and (ii) discoveries,\ninventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications,\ntechniques and processes relating to Disclosing Party's Software; and (g) product offerings, content partners, product pricing, product\navailability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how,\nimprovements,\ninventions\n(whether\npatentable\nor\nnot),\nmarketing\nplans,\nforecasts\nand\nstrategies.\nWhere\nthe\nConfidential\nInformation\nhas not been reduced to written or other tangible form at the time of disclosure, and such disclosure is made orally or visually, the\nDisclosing Party agrees to identify it as confidential or proprietary at the time of disclosure. "Confidential Information" shall be deemed\nto\ninclude\nall\nnotes,\nanalyses,\ncompilations,\nstudies,\ninterpretations\nor\nother\ndocuments\nprepared\nby\nthe\nReceiving\nParty\nor\nits\nRepresentatives which contain or are based upon, in whole or in part, the information furnished to the receiving party or its\nRepresentatives pursuant hereto.\n3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any\nreproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain\nany\nand\nall\nconfidential\nor\nproprietary\nnotices\nor\nlegends\nwhich\nappear\non\nthe\noriginal.\nThe\nReceiving\nParty:\n(a)\nshall\ntake\nall\nreasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any\nConfidential\nInformation\nto\nany\nperson\nother\nthan\nits\nRepresentatives\nwho\nare\nactively\nand\ndirectly\nparticipating\nin\nthe\nEvaluation\nor\nwho otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidentia Information\nfor\nany purpose other than in connection with the Evaluation. and (d) shall not disclose to any person (other than those of its\nRepresentatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the\nEvaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including without\nlimitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information\nhas been made available to the Receiving Party or its Representatives. As used herein "reasonable steps" means those steps the\nReceiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable\nstandard of care. As used herein. "Representatives" shal mean (i) employees of Receiving Party; (ii) attorneys, accountants, or other\nprofessional business advisors and, additionally, (iii) employees of the Receiving Party and those entities directly or indirectly owned by\nthe Receiving Party, in each case, who shall be informed of the confidential nature of the Confidential Information and shall agree to act\nin accordance with the terms of this Agreement. The Receiving Party shall be responsible for any breach of the terms of this\nAgreement by it or its Representatives.\n4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that:\n(a) is independently developed by Receiving Party without reference to the Confidential Information, or is lawfully received free of\nrestriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public\nwithout breach of this Agreement by Receiving Party; (c) at the time of disclosure to Receiving Party was known to such party free of\nrestriction; or (d) Disclosing Party agrees in writing is free of such restrictions.\nMUTUAL NON-DISCLOSURE AGREEMENT\n5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not\nintended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual\nproperty right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any\nbusiness or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of\nthe other party for purposes substantially similar to those involved herein.\n6. Nothing in this Agreement shall prohibit or restrict either party's right to develop, make, use, market, license or distribute products or\nservices similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby\nbreach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar\nto or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any\npurpose the residuals (defined below) resulting from access to or work with Confidential Information disclosed hereunder. The term\n"residuals" means information in non-tangible form which may be retained in the unaided memory by persons who have had access to\nthe Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from\nmemory. Neither party shall have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work\nresulting from the use of residuals. The party using any information that it claims to be residuals wil have the burden of proving that the\ninformation constitutes residuals.\n7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or\nregulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the\nEvaluation, unless prohibited by law, the Receiving Party shall provide the Disclosing Party with prompt notice of such request or\nrequirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the\nReceiving Party with respect to the Disclosing Party's taking steps to resist or narrow the scope of such request or legal process; or\n(iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is\nnot obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the\nReceiving Party or its Representative shall disclose only that portion of the Confidentia Information which is legally required to be\ndisclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment.\n8. To the extent that any Confidential Information may Include material subject to the attorney-client privilege, work product doctrine\nor\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties\nunderstand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual\nunderstanding that the sharing of such material is not intended to, and shall not waive or diminish in any way the confidentiality of such\nmaterial or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All\nConfidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine\nor\nother applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense\ndoctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine\nor any other applicable privilege.\n9. Upon the Disclosing Party's written request, the Receiving Party shall (at the Receiving Party's election) promptly return or destroy\n(provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential\nInformation of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether\nin\nhard-copy form or an intangible media, such as electronic mail or computer files) in the Receiving Party's possession or in the\npossession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek\ndisclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with\nrespect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required\nto\nidentify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems\narchiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the\nDisclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the\nReceiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such\nConfidential Information so archived or backed-up.\n10. Each Party hereto acknowledges that neither it nor its Representatives nor any of the officers, directors, employees, agents or\ncontrolling persons of such Representatives makes any express or implied representation or warranty as to the completeness of the\nConfidential Information.\nMUTUAL NON-DISCLOSURE AGREEMENT\n11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither\nparty shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal,\nterm sheet, letter of intent, or draft agreement relating to any such potentia relationship or transaction (other than with respect to the\nconfidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or\nmay not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation,\nnegotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to\nchange\n(in\nits\nsole\ndiscretion,\nat\nany\ntime\nand\nwithout\nnotice\nto\nthe\nother\nparty)\nthe\nprocedures\nrelating\nto\nthe\nparties'\nconsideration\nof\nthe potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and\nrequesting that the other party return or destroy the Confidentia Information as described above). Either party can end the discussions\nat any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive\nagreements is at the sore risk of the party making the decision, even if the other party is aware of or has indicated approva of, such\ndecision.\n12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of\nthe restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other person\nwhen it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n13. In consideration of the Information being furnished to SAP and the Company, each of SAP and the Company hereby agree that,\nuntil twelve (12) months after the date of termination of this Agreement, such party will not solicit for employment with such party\nor\nany\nof its subsidiaries, or employ, any of the current officers or employees of the other party with whom such party has had contact during\nthe term of this Agreement and who became known by such party or who was identified to such party as part of the Evaluation under\nthis Agreement. Notwithstanding the foregoing, nothing herein shall restrict or preclude either party from (A) making generalized\nsearches for employees (by use of advertisements in the media, the engagement of search firms or otherwise), (B) continuing its\nordinary course hiring practices that are not targeted specifically at employees of the other party or (C) hiring an employee of the other\nparty who first initiates an employment discussion with such party, so long as such party has not violated the restrictions on solicitation\ncontained in this Agreement.\n14. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties\nagree that until one (1) year after the date of termination of this Agreement, neither party nor any of each party's affiliates or its\nRepresentatives acting on the party's behalf will, unless specifically invited in writing by the other party's Board of Directors or its duly\nauthorized representative: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting\nsecurities or direct or indirect rights to acquire any voting securities, or indebtedness of the other party or any subsidiary thereof, or any\nsuccessor entity; (ii) make, directly or indirectly, any "solicitation" of "proxies" (as such terms are used in Rule 14a-1 under the\nSecurities Exchange Act of 1934 (the 34 Act")) to vote, or seek to advise or influence any person or entity with respect to the voting of,\nany voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any\nmerger, consolidation, stock purchase tender or exchange offer, restructuring or business combination, involving the other party or to\npurchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way\nparticipate in a "group" (as defined in Section 13(d)(3) of the 34 Act) in connection with any of the foregoing; (v) request the other party\nor\nany\nof\nthe\nother\nparty's\nRepresentatives\nto\namend\nor\nwaive\nany\nprovisions\nof\nthis\nparagraph\nin\na\nmanner\nthat\nwould\nrequire\npublic\ndisclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public\nannouncement\nregarding\nthe\npossibility\nof\nany\nof\nthe\nevents\ndescribed\nin\nsub-clauses\n(i)\nthrough\n(v).\nNotwithstanding\nanything\nto\nthe\ncontrary in this paragraph, (1) each party shal be permitted at any time and from time to time to submit to the Chief Executive Officer of\nthe other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that each\nsuch\nsubmission is made on a confidential basis and states that the provider does not intend to make a public announcement related\nto\nsuch submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that the\nreceipt thereof by the other party does not require public disclosure of such submission and (2) no party shall be bound by the\nforegoing restrictions in the event that any person or "group" (as defined in Section 13(d)(3) of the 34 Act) other than such party or\nits\naffiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise,\nbeneficial ownership of more than 50% of the outstanding voting securities of the other party or assets of the other party or its\nsubsidiaries representing more than 50% of the consolidated earning power of the other party and its subsidiaries and the other party's\nBoard of Directors has recommended to such other party's shareholders that such acquisition be approved or (y) enter into an\nagreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving\nthe other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior\nto such transaction, had beneficial ownership of 50% or more of the voting power of the other party would not continue to\nMUTUAL NON-DISCLOSURE AGREEMENT\nbeneficially own by virtue of their exchange or retention of securities of such other party representing at least 50% of the voting power\nof the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party's\nBoard of Directors has recommended to such other party's shareholders that such merger, consolidation or similar transaction be\napproved.\n15. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to\nequitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the\nprovisions of this Agreement.\n16. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors,\nemployees, agents or controlling persons of such Representatives makes any express or implied representation or warranty regarding\nthe Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the\nConfidential Information.\n17. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of\nAmerica, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New\nYork law. The parties agree the courts of the State of California shall be the exclusive venue for disputes arising under this Agreement.\nIn the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be\nunenforceable, the remaining portions hereof shall remain in ful force and effect.\n18. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder\nin connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the\nevent the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of\nwork product of either party or software license provisions and rights, then this Agreement shall not supersede either party's rights\nand\nobligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither Party will\nassign or transfer any rights or obligations under this Agreement without the prior written consent of the other Party. No amendment or\nmodification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the\nparties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed\na subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay\nby either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single\nor\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n19. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such\nparty's sole discretion upon thirty (30) days written notice to the other party. The provisions herein concerning the disclosure, protection\nand use of Confidential Information, including Sections 3, 4, 7 and 9, shall survive the termination or expiration of this Agreement. The\nnon-solicit and standstill obligations shall remain in effect as provided in Sections 13 or 14, as applicable.\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together\nshall constitute one and the same agreement.\nLOGO	EX-99.(D)(2) 11 d268167dex99d2.htm MUTUAL NON-DISCLOSURE AGREEMENT\nExhibit (d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) is effective as of October 20, 2011 (“Effective Date”) and is entered into between\nSuccessFactors, Inc., a Delaware corporation, having a place of business at 1500 Fashion Island Boulevard, San Mateo, California,\n94404, USA (“Company”), and SAP AG, a German company with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf,\nGermany on behalf of itself and its wholly owned subsidiaries, (“SAP”). In consideration of the mutual covenants contained herein, SAP\nand Company, intending to be legally bound hereby, agree to the following:\n1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company\nmay deliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such\nConfidential Information being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”).\n2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives\n(defined below) to the Receiving Party or its Representatives, whether orally, in writing, electronically or in other tangible form, and\nidentified as confidential or proprietary at the time of disclosure by the Disclosing Party or otherwise disclosed in a manner such that a\nreasonable person would understand its confidential nature, including but not limited to, information that is related to: (a) the business\nplans or operations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business\nof any customer or partner of the Disclosing Party; (d) Disclosing Party’s properties, employees, finances, operations; (e) any\ninformation about or concerning any third party (which information was provided to the Disclosing Party subject to an applicable\nconfidentiality obligation to such third party); (f) software and related documentation (“Disclosing Party’s Software”) including the\nfollowing information regarding Disclosing Party’s Software: (i) computer software (object and source codes), programming techniques\nand programming concepts, methods of processing, system designs embodied in Disclosing Party’s Software; and (ii) discoveries,\ninventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications,\ntechniques and processes relating to Disclosing Party’s Software; and (g) product offerings, content partners, product pricing, product\navailability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how,\nimprovements, inventions (whether patentable or not), marketing plans, forecasts and strategies. Where the Confidential Information\nhas not been reduced to written or other tangible form at the time of disclosure, and such disclosure is made orally or visually, the\nDisclosing Party agrees to identify it as confidential or proprietary at the time of disclosure. “Confidential Information” shall be deemed\nto include all notes, analyses, compilations, studies, interpretations or other documents prepared by the Receiving Party or its\nRepresentatives which contain or are based upon, in whole or in part, the information furnished to the receiving party or its\nRepresentatives pursuant hereto.\n3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any\nreproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain\nany and all confidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all\nreasonable steps (defined below) to keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any\nConfidential Information to any person other than its Representatives who are actively and directly participating in the Evaluation or\nwho otherwise need to know the Confidential Information for the purpose of the Evaluation; (c) shall not use Confidential Information for\nany purpose other than in connection with the Evaluation. and (d) shall not disclose to any person (other than those of its\nRepresentatives who are actively and directly participating in the Evaluation or who otherwise need to know for the purpose of the\nEvaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto, including, without\nlimitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential Information\nhas been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the\nReceiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable\nstandard of care. As used herein. “Representatives” shall mean (i) employees of Receiving Party; (ii) attorneys, accountants, or other\nprofessional business advisors and, additionally, (iii) employees of the Receiving Party and those entities directly or indirectly owned by\nthe Receiving Party, in each case, who shall be informed of the confidential nature of the Confidential Information and shall agree to act\nin accordance with the terms of this Agreement. The Receiving Party shall be responsible for any breach of the terms of this\nAgreement by it or its Representatives.\n4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that:\n(a) is independently developed by Receiving Party without reference to the Confidential Information, or is lawfully received free of\nrestriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public\nwithout breach of this Agreement by Receiving Party; (c) at the time of disclosure to Receiving Party was known to such party free of\nrestriction; or (d) Disclosing Party agrees in writing is free of such restrictions.\nMUTUAL NON-DISCLOSURE AGREEMENT\n5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not\nintended to be construed as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual\nproperty right; (b) creating a commitment as to any product, including the development or functionality of any product; (c) soliciting any\nbusiness or incurring any obligation not specified herein; or (d) prohibiting either party from associating themselves with competitors of\nthe other party for purposes substantially similar to those involved herein.\n6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or\nservices similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby\nbreach this Agreement. Each party acknowledges that the other may already possess or have developed products or services similar\nto or competitive with those of the other party disclosed in the Confidential Information. Further, either party shall be free to use for any\npurpose the residuals (defined below) resulting from access to or work with Confidential Information disclosed hereunder. The term\n“residuals” means information in non-tangible form which may be retained in the unaided memory by persons who have had access to\nthe Confidential Information so long as such persons have not studied the information for the purpose of replicating the same from\nmemory. Neither party shall have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work\nresulting from the use of residuals. The party using any information that it claims to be residuals will have the burden of proving that the\ninformation constitutes residuals.\n7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or\nregulation or by legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the\nEvaluation, unless prohibited by law, the Receiving Party shall provide the Disclosing Party with prompt notice of such request or\nrequirement in order to enable the Disclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the\nReceiving Party with respect to the Disclosing Party’s taking steps to resist or narrow the scope of such request or legal process; or\n(iii) to waive compliance, in whole or in part, with the terms of this Agreement. In the event that such protective order or other remedy is\nnot obtained in a timely manner, or the Disclosing Party waives compliance, in whole or in part, with the terms of this Agreement, the\nReceiving Party or its Representative shall disclose only that portion of the Confidential Information which is legally required to be\ndisclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment.\n8. To the extent that any Confidential Information may Include material subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties\nunderstand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual\nunderstanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such\nmaterial or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All\nConfidential Information provided by a party that is entitled to protection under the attorney-client privilege, work product doctrine or\nother applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense\ndoctrine. Nothing in this Agreement obligates any party to reveal material subject to the attorney-client privilege, work product doctrine\nor any other applicable privilege.\n9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy\n(provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential\nInformation of the Disclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in\nhard-copy form or an intangible media, such as electronic mail or computer files) in the Receiving Party’s possession or in the\npossession of any Representative of the Receiving Party; provided, however: (i) that if a legal proceeding has been instituted to seek\ndisclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with\nrespect thereto has been rendered; (ii) that the Receiving Party shall not, in connection with the foregoing obligations, be required to\nidentify or delete Confidential Information held electronically in archive or back-up systems in accordance with general systems\narchiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy Confidential Information of the\nDisclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further provided that the\nReceiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such\nConfidential Information so archived or backed-up.\n10. Each Party hereto acknowledges that neither it nor its Representatives nor any of the officers, directors, employees, agents or\ncontrolling persons of such Representatives makes any express or implied representation or warranty as to the completeness of the\nConfidential Information.\nMUTUAL NON-DISCLOSURE AGREEMENT\n11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither\nparty shall be under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal,\nterm sheet, letter of intent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the\nconfidentiality and other matters set forth herein). Each party hereto and its Representatives (a) may conduct the process that may or\nmay not result in definitive agreement in such manner as such party, in its sole discretion, may determine (including, without limitation,\nnegotiating and entering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to\nchange (in its sole discretion, at any time and without notice to the other party) the procedures relating to the parties’ consideration of\nthe potential relationship or transaction (including, without limitation, terminating all further discussions with the other party and\nrequesting that the other party return or destroy the Confidential Information as described above). Either party can end the discussions\nat any time, for any reason, and without liability to the other. Any business decision either party makes in anticipation of definitive\nagreements is at the sore risk of the party making the decision, even if the other party is aware of or has indicated approval of, such\ndecision.\n12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of\nthe restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other person\nwhen it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n13. In consideration of the Information being furnished to SAP and the Company, each of SAP and the Company hereby agree that,\nuntil twelve (12) months after the date of termination of this Agreement, such party will not solicit for employment with such party or any\nof its subsidiaries, or employ, any of the current officers or employees of the other party with whom such party has had contact during\nthe term of this Agreement and who became known by such party or who was identified to such party as part of the Evaluation under\nthis Agreement. Notwithstanding the foregoing, nothing herein shall restrict or preclude either party from (A) making generalized\nsearches for employees (by use of advertisements in the media, the engagement of search firms or otherwise), (B) continuing its\nordinary course hiring practices that are not targeted specifically at employees of the other party or (C) hiring an employee of the other\nparty who first initiates an employment discussion with such party, so long as such party has not violated the restrictions on solicitation\ncontained in this Agreement.\n14. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties\nagree that until one (1) year after the date of termination of this Agreement, neither party nor any of each party’s affiliates or its\nRepresentatives acting on the party’s behalf will, unless specifically invited in writing by the other party’s Board of Directors or its duly\nauthorized representative: (i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting\nsecurities or direct or indirect rights to acquire any voting securities, or indebtedness of the other party or any subsidiary thereof, or any\nsuccessor entity; (ii) make, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the\nSecurities Exchange Act of 1934 (the “34 Act”)) to vote, or seek to advise or influence any person or entity with respect to the voting of,\nany voting securities of the other party; (iii) make any public announcement with respect to, or submit a proposal for, or offer of any\nmerger, consolidation, stock purchase tender or exchange offer, restructuring or business combination, involving the other party or to\npurchase, directly or indirectly, a material portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way\nparticipate in a “group” (as defined in Section 13(d)(3) of the 34 Act) in connection with any of the foregoing; (v) request the other party\nor any of the other party’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public\ndisclosure of such request; or (vi) take any action that could reasonably be expected to require the other party to make a public\nannouncement regarding the possibility of any of the events described in sub-clauses (i) through (v). Notwithstanding anything to the\ncontrary in this paragraph, (1) each party shall be permitted at any time and from time to time to submit to the Chief Executive Officer of\nthe other party one or more offers, proposals or indications of interest related to a transaction between the parties, provided that each\nsuch submission is made on a confidential basis and states that the provider does not intend to make a public announcement related to\nsuch submission or its text or contents and that the provider of such submission believes, after discussion with its counsel, that the\nreceipt thereof by the other party does not require public disclosure of such submission and (2) no party shall be bound by the\nforegoing restrictions in the event that any person or “group” (as defined in Section 13(d)(3) of the 34 Act) other than such party or its\naffiliates shall (x) acquire or publicly propose to acquire, by purchase, merger, tender offer, reorganization, consolidation or otherwise,\nbeneficial ownership of more than 50% of the outstanding voting securities of the other party or assets of the other party or its\nsubsidiaries representing more than 50% of the consolidated earning power of the other party and its subsidiaries and the other party’s\nBoard of Directors has recommended to such other party’s shareholders that such acquisition be approved or (y) enter into an\nagreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar transaction, involving\nthe other party in which, following consummation of such transaction, substantially all of the persons or entities who, immediately prior\nto such transaction, had beneficial ownership of 50% or more of the voting power of the other party would not continue to\nMUTUAL NON-DISCLOSURE AGREEMENT\nbeneficially own by virtue of their exchange or retention of securities of such other party representing at least 50% of the voting power\nof the combined entity and would not have the ability to elect a majority of the directors of the combined entity and the other party’s\nBoard of Directors has recommended to such other party’s shareholders that such merger, consolidation or similar transaction be\napproved.\n15. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to\nequitable relief by way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the\nprovisions of this Agreement.\n16. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors,\nemployees, agents or controlling persons of such Representatives makes any express or implied representation or warranty regarding\nthe Confidential Information, including, without limitation, any representation or warranty as to the completeness or accuracy of the\nConfidential Information.\n17. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of\nAmerica, without giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New\nYork law. The parties agree the courts of the State of California shall be the exclusive venue for disputes arising under this Agreement.\nIn the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be\nunenforceable, the remaining portions hereof shall remain in full force and effect.\n18. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder\nin connection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the\nevent the parties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of\nwork product of either party or software license provisions and rights, then this Agreement shall not supersede either party’s rights and\nobligations as provided in such other agreements, unless such other agreement specifically provides otherwise. Neither Party will\nassign or transfer any rights or obligations under this Agreement without the prior written consent of the other Party. No amendment or\nmodification of this Agreement shall be valid or binding on the parties unless made in writing and signed on behalf of each of the\nparties by their respective duly authorized officers or representatives. Any waiver of a provision of this Agreement shall not be deemed\na subsequent waiver of the same or any other provision of this Agreement. It is further understood and agreed that no failure or delay\nby either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n19. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such\nparty’s sole discretion upon thirty (30) days written notice to the other party. The provisions herein concerning the disclosure, protection\nand use of Confidential Information, including Sections 3, 4, 7 and 9, shall survive the termination or expiration of this Agreement. The\nnon-solicit and standstill obligations shall remain in effect as provided in Sections 13 or 14, as applicable.\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together\nshall constitute one and the same agreement.\nLOGO
+64abe3bf110e45ead01aad142e549a45.pdf	effective_date jurisdiction party term	EX-99.(E)(6) 2 d459564dex99e6.htm CONFIDENTIALITY AGREEMENT DATED OCTOBER 30, 2012\nExhibit (e)(6)\nEXECUTION VERSION\nWestway Group, Inc.\n365 Canal Street, Suite 2900\nNew Orleans, LA 70130\nOctober 30, 2012\nEQT Infrastructure II GP B.V.\nWorld Trade Center Schiphol\nH-Tower, Floor 4\nSchiphol Boulevard 355, 1118 BJ Schiphol\nThe Netherlands\nAttention:\nDêon Van der Ploeg, Managing Director\nMarc Hedeman Joosten, Legal Counsel\nGentlemen,\nIn order to allow EQT Infrastructure II Limited Partnership (“you”), to evaluate a potential negotiated transaction (the “Proposed Transaction”)\nwith Westway Group, Inc., a Delaware corporation (together with all of its subsidiaries, the “Company”), we may in our discretion furnish to you,\nupon your execution and delivery to us of this letter agreement, certain information about the properties and operations of the Company. As used in\nthis letter agreement, the terms “we” and “us” shall mean Westway Group, Inc., acting through its Board of Directors (the “Board”) or the special\ncommittee of the Board (the “Special Committee”) given the authority to act on behalf of the Board in this regard. All information about the\nCompany furnished by us or our Representatives (as defined below), whether furnished before or after the date hereof, whether oral or written, and\nregardless of the manner in which it is furnished, is referred to in this letter agreement as “Proprietary Information.” Proprietary Information includes\n(i) all notes, analyses, compilations, studies or other documents prepared by you or your Representatives which contain or reflect or are based upon,\nin whole or in part, the information furnished to you or your Representatives pursuant hereto, and (ii) the fact that the Company is considering and\nmay negotiate a Proposed Transaction, the terms or conditions or any other facts relating thereto, the fact that discussions are taking place with\nrespect thereto or the status thereof, the fact that this letter agreement has been executed and the fact that Proprietary Information has been made\navailable to you or your Representatives. Proprietary Information does not include information which (a) is or becomes generally available to the\npublic other than as a result of a disclosure by you or your Representatives in breach of this letter agreement, (b) was available to you or your\nRepresentatives on a nonconfidential basis prior to its disclosure by us or our Representatives; provided that the source of such information is not\nknown to you to be bound by a confidentiality agreement with us or any Representative of ours, or is otherwise not under an obligation to us or any\nRepresentative of ours not to transmit the information to you, or (c) becomes available to you or your Representatives on a nonconfidential basis\nfrom a person other than us or our Representatives who is not otherwise known to you to be bound by a confidentiality agreement with us or any\nRepresentative of ours, or is otherwise not under an obligation to us or any Representative of ours not to transmit the information to you. As used in\nthis letter agreement, the term “Representative” means, as to any person, such person’s affiliates, if any, and its and their (or their general partner’s,\nas applicable) directors, officers, employees, managing members, agents and advisors (including, without limitation, financial advisors, counsel and\naccountants), together with the “Representatives” of such Representatives; provided, that your “affiliates” for purposes of this letter agreement shall\ninclude, as applicable, your general partner, manager, the managing members of your general\nEQT Infrastructure II GP B.V., a private company with limited liability (“besloten vennootschap met beperkte aansprakelijkheid”) registered with\nthe commercial register of the Chambers of Commerce in the Netherlands under number 54468701 with its registered office at World Trade\nCenter Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands, acting in its capacity as general partner of EQT\nInfrastructure II Limited Partnership, a limited partnership registered in England and Wales under number LP014908, with its principal place of\nbusiness for the time being at World Trade Center Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands.\n1\n1\npartner and the other investment partnerships under common control with you. As used in this letter agreement, the term “person” shall be broadly\ninterpreted to include, without limitation, the media, and any corporation, company, partnership, other entity or individual.\nUnless otherwise agreed to in writing by us, you agree (a) to keep all Proprietary Information confidential and not to disclose or reveal any\nProprietary Information to any person, including, without limitation, management or operations, other than your Representatives who are\nparticipating in your evaluation of the Proposed Transaction and who, in your reasonable judgment, need to know the Proprietary Information for the\npurpose of evaluating the Proposed Transaction, and who are informed of the confidential nature of the Proprietary Information and who agree to be\nbound by the non-disclosure and use limitation provisions of this letter agreement that are applicable to you, and (b) not to use Proprietary\nInformation, directly or indirectly, for any purpose, including, without limitation, to compete with the Company, other than in connection with your\nevaluation of the Proposed Transaction or the consummation of the Proposed Transaction pursuant to a final definitive agreement with the Company\n(“FDA”). You agree that the dissemination of Proprietary Information within your organization shall be strictly limited to the minimum possible\nnumber of people and only to those persons whose duties require that they know such Proprietary Information for purposes of evaluating the\nProposed Transaction, provided, further, that in no event will you share any of the Proprietary Information, the existence of this letter agreement or\nthe fact that you have received Proprietary Information with any operating management or personnel of any competing business which you operate\nunless you have received our prior written consent to do so.\nYou agree to inform each of your Representatives of the confidential nature of the Proprietary Information and of this letter agreement and to\nuse your reasonable best efforts to cause your Representatives to observe the terms of this letter agreement and not to use the Proprietary Information\nother than in connection with your evaluation of the Proposed Transaction. In any case, you will be responsible for any breach of the terms of this\nletter agreement by you or your Representatives and you agree at your sole expense to take all reasonable measures to restrain its Representatives\nfrom prohibited or unauthorized disclosure or use of Proprietary Information or other breach of this letter agreement.\nIn the event that you are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Proprietary\nInformation or any other information concerning the Company or the Proposed Transaction, you agree that, unless prohibited by applicable law, you\nwill provide us with prompt notice of such request or requirement in order to enable us to seek an appropriate protective order or other remedy, to\nconsult with you with respect to our taking steps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in\npart, with the terms of this letter agreement. If, failing the entry of a protective order or the receipt of a waiver hereunder, you are, on the advice of\nyour legal counsel to that effect, legally required to disclose Proprietary Information, you may, after notice to and consultation with us, disclose\nsolely that Proprietary Information which on the advice of legal counsel you are legally required to disclose. In any such event you will use your\nreasonable best efforts (and will reasonably cooperate with us in our efforts) to ensure that such Proprietary Information and other information that is\nso disclosed will be accorded confidential treatment.\nIn the event that you supply to the Company or to us or to any of our subsidiaries any information that you deem to be confidential (“Your\nConfidential Information”) then we agree that as regards Your Confidential Information we shall perform and observe mutatis mutandis the same\nobligations in this letter agreement as apply to you in respect of Proprietary Information and, in addition, that the same rights, benefits and beneficial\nexclusions that we have under this letter agreement shall also apply mutatis mutandis to you.\nYou acknowledge that the Company has the absolute right to determine what Proprietary Information, properties and personnel it wishes to\nmake available to you. During the course of your evaluation, you and your Representatives agree that you will not, directly or indirectly initiate\ncontact for any purpose relating to your\n-2-\nevaluation of the Proposed Transaction with any director, officer, employee, customer or supplier of the Company or any other third party actually\nknown to you to be related to the Company and that you will submit any requests for such contact only to Evercore Group L.L .C., as advisor to the\nCompany. If your evaluation of the Proposed Transaction is terminated by you or the Company, you and your Representatives will permanently\ncease all such contacts for any purposes relating to your evaluation of the Proposed Transaction, whether or not previously authorized.\nYou acknowledge that as of the date hereof, except as disclosed in the Company’s public filings with the Securities and Exchange Commission\nas of the date hereof, neither you nor any of your affiliates beneficially own any securities or rights to acquire any securities of the Company. You\nalso agree that for a period of one year from the date of this letter agreement, neither you nor any of your affiliates will, directly or indirectly, unless\nspecifically invited in writing to do so by the Board or, as appropriate, the Special Committee:\n(a) acquire, offer or seek to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of any securities\nor direct or indirect rights to acquire any securities of the Company (except pursuant to a stock split, stock dividend or reclassification), or of any\nsuccessor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or controlling\nperson (but with respect to such controlling person, only with respect to assets relating to the Company);\n(b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote or consent (as such terms are used in the\nrules of the Securities and Exchange Commission), or seek to advise or influence, alone or in concert with others, any person or entity with respect to\nthe voting of, or granting of a consent with respect to, any voting securities of the Company, or seek to control or influence, alone or in concert with\nothers, the management, Board of Directors or policies of the Company; (c) nominate, or seek to nominate, directly or indirectly, any person to the\nBoard of Directors;\n(d) make, effect, initiate, cause or participate in, directly or indirectly, or make any public announcement with respect to, or submit or make a\nproposal for, or offer of (with or without conditions) any merger, business combination, tender or exchange offer, recapitalization, restructuring,\nliquidation, dissolution or other extraordinary transaction involving the Company or any of its securities or assets;\n(e) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, and\nthe rules promulgated thereunder) in connection with any of the foregoing;\n(f) negotiate, discuss, advise, assist or encourage any other person in connection with the foregoing or take any other action intended to, or\nreasonably likely to, force the Company to make a public announcement regarding the types of matters set forth above;\n(g) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of any action referred to in clauses (a) through (e) above;\nor\n(h) request the Company, the Board, the Special Committee or any of the Company’s Representatives, directly or indirectly, to amend, waive\nor consider the amendment or waiver of any provision of this paragraph.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.\nIf you determine that you do not wish to proceed with further discussions and negotiations regarding the Proposed Transaction, you will\npromptly advise us of that decision. In that case, or in the event that we, in our sole discretion, so request or the Proposed Transaction is not\nconsummated by you, you will promptly deliver to us or destroy (and deliver to us a certification of such destruction) all Proprietary Information,\nincluding all\n-3-\ncopies, reproductions, electronic records, summaries, analyses or extracts thereof or based thereon in your possession or in the possession of any\nRepresentative of yours. However, you are allowed to keep copies of the Proprietary Information if required in order for you to meet legal\nrequirements and regulations.\nYou agree and acknowledge that the Company reserves the right, in its sole discretion and without any liability to you, to reject any and all\nproposals made by you or any of your Representatives with regard to a transaction between you and the Company and to terminate discussions and\nnegotiations with you at any time. You further agree and acknowledge that (a) the Board of Directors and the Special Committee shall be free to\nconduct the process for the Proposed Transaction as they in their sole discretion shall determine (including, without limitation, negotiating with any\nprospective counterparty and entering into an FDA without prior notice to you or to any other person), (b) any procedures relating to such Proposed\nTransaction may be changed at any time without notice to you or any other person and (c) you shall not have any claims whatsoever against the\nCompany, its Representatives or any of the respective officers, directors, employees, agents or controlling persons of such Representatives arising\nout of, or relating to, a possible transaction involving the Company.\nYou acknowledge that neither the Company nor its Representatives and none of the respective officers, directors, employees, agents or\ncontrolling persons of such Representatives makes any express or implied representation or warranty as to the accuracy or completeness of any\nProprietary Information. You agree that neither the Company nor its Representatives shall have any liability to you or any of your Representatives\nrelating to or arising from your or their use of any Proprietary Information or for any errors therein or omissions therefrom. It is understood that the\nscope of any representations and warranties to be given by the Company will be negotiated along with other terms and conditions in arriving at a\nmutually acceptable FDA should discussions between you and the Company progress to such a point. Only those representations and warranties that\nare made in an FDA when, as and if executed and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nYou agree that, without our prior written consent, you will not for a period of two years from the date hereof (the “Non-Solicit Period”)\ndirectly or indirectly cause or encourage any person to solicit for employment or employ any employee who is now employed by us or any of our\nsubsidiaries, including management, sales and technical personnel who is or becomes known to you as a result of your evaluation or otherwise in\nconnection with the Proposed Transaction. It is understood and agreed that the foregoing shall not be deemed to prohibit general solicitations of\nemployment not specifically directed toward employees of the Company; provided that notwithstanding anything contained herein, you will not\nemploy any of the individuals set forth on Exhibit A hereto during the Non-Solicit Period.\nWithout prejudice to the rights and remedies otherwise available to us, you agree that money damages would not be a sufficient remedy for\nbreach of this letter agreement and that we shall be entitled to obtain equitable relief by way of injunction or otherwise if you or any of your\nRepresentatives breach or threaten to breach any of the provisions of this letter agreement. You further agree to waive any requirement for security or\nposting of any bond in connection with any such equitable remedy.\nIt is further understood and agreed that no failure or delay by either you nor us in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder.\nThis letter agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to\ncontracts executed in and to be performed in that state. Any action arising out of or relating to this letter agreement shall be brought exclusively in\nthe state or federal courts sitting in the District of Delaware which we and you agree is a convenient forum.\nAny assignment of this letter agreement by you without our prior written consent shall be void.\n-4-\nThis letter agreement contains the entire agreement between you and us concerning the subject matter hereof, and no modification of this letter\nagreement or waiver of the terms and conditions hereof shall be binding upon you or us, unless approved in writing by each of you and us. You\nacknowledge that the Board of Directors or Special Committee may condition your continued receipt of Proprietary Information on you entering into\nan amended or new confidentiality agreement. Any such new agreement shall supercede this letter agreement to the extent provided therein. The\nprovisions of the FDA may supersede this letter agreement and any such new agreement to the extent specifically set forth in the FDA.\nYou acknowledge that you are aware, and that you will advise your Representatives who receive Proprietary Information or otherwise are\ninformed as to the matters that are the subject matter of this letter agreement, of your and their obligations under the United States securities laws.\nThis letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall\nconstitute one and the same agreement.\n-5-\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed\nherewith.\nWESTWAY GROUP, INC.\nBy: /s/ Francis P. Jenkins, Jr.\nName: Francis P. Jenkins, Jr.\nTitle: Chairman of the Special Committee\nAccepted and Agreed as of\nthe date first written above:\nEQT Infrastructure II GP B.V.\nBy: /s/ G.J . Van der Ptoeg\nName: G.J. Van der Ptoeg\nTitle: Director\nBy: /s/ M.H.J . Hedeman Joosten\nName: M.H .J . Hedeman Joosten\nTitle: Director\nExhibit A\nCorporate:\nJames Jenkins, Chief Executive Officer\nThomas Masilla Jr., Chief Financial Officer and Secretary\nWade Blanchard, Vice President, European Health, Safety, Environmental, and Quality (“HSEQ”)\nChad Saltzman, Corporate Controller\nGrayson Marloff\nJoe Roussell\nHuman Resources:\nMarie O’Donnell\nInformation Technology:\nPeter Griffiths\nRakesh Bhansali\nWestway Feed Products LLC:\nSteve Boehmer, President\nDr. Joe Harris, Executive Vice President\nBill Anderson, Director of Business Development\nMike Strobel, Director of Operations\nWillie Hayes, Director of Sales\nJerry Stephenson, National Accts. Manager\nRob Barrigan\nWestway Terminal Company LLC:\nGene McClain, President\nBert van Holst, European Operations Director\nRobbie Johnson, VP of Operations and Engineering\nMark O’Donnell, Regional Sales Manager\nSteven Palm, Regional Sales Manager\nBill Johnston, Regional Manager\nBrian Kleczkowski, Regional Manager\nDino DeLuca, Regional Manager\nJennifer Montz\nEtienne Mostertman\nWestway Group, Inc.\n365 Canal Street, Suite 2900\nNew Orleans, LA 70130\nNovember 7, 2012\nEQT Infrastructure II GP B.V.\nWorld Trade Center Schiphol\nH-Tower, Floor 4\nSchiphol Boulevard 355, 1118 BJ Schiphol\nThe Netherlands\nAttention:\nDêon Van der Ploeg, Managing Director\nMarc Hedeman Joosten, Legal Counsel\nGentlemen,\nReference is hereby made to the letter agreement (the “Letter Agreement”), dated October 30, 2012, by and between EQT Infrastructure II\nLimited Partnership (“you”) and Westway Group, Inc., a Delaware corporation (together with all of its subsidiaries, the “Company”). As used herein,\nthe terms “we” and “us” shall mean Westway Group, Inc., acting through its Board of Directors (the “Board”) or the special committee of the Board\n(the “Special Committee”) given the authority to act on behalf of the Board in this regard.\nThe parties hereto agree that, for purposes of the Letter Agreement, the term “Representatives” therein shall mean, as to any person, such\nperson’s affiliates, if any, and its and their (or their general partner’s, as applicable) directors, officers, employees, managing members, agents and\nadvisors (including, without limitation, financial advisors, potential sources of debt financing, counsel and accountants), together with the\n“Representatives” of such Representatives.\nExcept as expressly provided herein, all other terms and provisions of the Letter Agreement shall remain in full force and effect.\nThis letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall\nconstitute one and the same agreement.\nEQT Infrastructure II GP B.V., a private company with limited liability (“besloten vennootschap met beperkte aansprakelijkheid”) registered with\nthe commercial register of the Chambers of Commerce in the Netherlands under number 54468701 with its registered office at World Trade\nCenter Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands, acting in its capacity as general partner of EQT\nInfrastructure II Limited Partnership, a limited partnership registered in England and Wales under number LP014908, with its principal place of\nbusiness for the time being at World Trade Center Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands.\n1\n1\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed\nherewith.\nWESTWAY GROUP, INC.\nBy: /s/ Francis P. Jenkins, Jr.\nName: Francis P. Jenkins, Jr.\nTitle: Chairman of the Special Committee\nAccepted and Agreed as of\nthe date first written above:\nEQT Infrastructure II GP B.V.\nBy: /s/ G.J . Van der Ptoeg\nName: G.J. Van der Ptoeg\nTitle: Director\nBy: /s/ M.H.J . Hedeman Joosten\nName: M.H .J . Hedeman Joosten\nTitle: Director	EX-99.(E)(6) 2 d459564dex99e6.htm CONFIDENTIALITY AGREEMENT DATED OCTOBER 30, 2012\nExhibit ()(6)\nEXECUTION VERSION\nWestway Group, Inc.\n365 Canal Street, Suite 2900\nNew Orleans, LA 70130\nOctober 30, 2012\nEQT Infrastructure I GP B.V.1\nWorld Trade Center Schiphol\nH-Tower, Floor 4\nSchiphol Boulevard 355, 1118 BJ Schiphol\nThe Netherlands\nAttention: Déon Van der Ploeg, Managing Director\nMarc Hedeman Joosten, Legal Counsel\nGentlemen,\nIn order to allow EQT Infrastructure II Limited Partnership (“you”), to evaluate a potential negotiated transaction (the “Proposed Transaction™)\nwith Westway Group, Inc., a Delaware corporation (together with all of its subsidiaries, the “Company”), we may in our discretion furnish to you,\nupon your execution and delivery to us of this letter agreement, certain information about the properties and operations of the Company. As used in\nthis letter agreement, the terms “we” and “us” shall mean Westway Group, Inc., acting through its Board of Directors (the “Board”) or the special\ncommittee of the Board (the “Special Committee”) given the authority to act on behalf of the Board in this regard. All information about the\nCompany furnished by us or our Representatives (as defined below), whether furnished before or after the date hereof, whether oral or written, and\nregardless of the manner in which it is furnished, is referred to in this letter agreement as “Proprietary Information.” Proprietary Information includes\n(i) all notes, analyses, compilations, studies or other documents prepared by you or your Representatives which contain or reflect or are based upon,\nin whole or in part, the information furnished to you or your Representatives pursuant hereto, and (ii) the fact that the Company is considering and\nmay negotiate a Proposed Transaction, the terms or conditions or any other facts relating thereto, the fact that discussions are taking place with\nrespect thereto or the status thereof, the fact that this letter agreement has been executed and the fact that Proprietary Information has been made\navailable to you or your Representatives. Proprietary Information does not include information which (a) is or becomes generally available to the\npublic other than as a result of a disclosure by you or your Representatives in breach of this letter agreement, (b) was available to you or your\nRepresentatives on a nonconfidential basis prior to its disclosure by us or our Representatives; provided that the source of such information is not\nknown to you to be bound by a confidentiality agreement with us or any Representative of ours, or is otherwise not under an obligation to us or any\nRepresentative of ours not to transmit the information to you, or (c) becomes available to you or your Representatives on a nonconfidential basis\nfrom a person other than us or our Representatives who is not otherwise known to you to be bound by a confidentiality agreement with us or any\nRepresentative of ours, or is otherwise not under an obligation to us or any Representative of ours not to transmit the information to you. As used in\nthis letter agreement, the term “Representative” means, as to any person, such person’s affiliates, if any, and its and their (or their general partner’s,\nas applicable) directors, officers, employees, managing members, agents and advisors (including, without limitation, financial advisors, counsel and\naccountants), together with the “Representatives” of such Representatives; provided, that your “affiliates” for purposes of this letter agreement shall\ninclude, as applicable, your general partner, manager, the managing members of your general\n' EQT Infrastructure IT GP B.V., a private company with limited liability (“besloten vennootschap met beperkte aansprakelijkheid”) registered with\nthe commercial register of the Chambers of Commerce in the Netherlands under number 54468701 with its registered office at World Trade\nCenter Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands, acting in its capacity as general partner of EQT\nInfrastructure II Limited Partnership, a limited partnership registered in England and Wales under number LP014908, with its principal place of\nbusiness for the time being at World Trade Center Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands.\npartner and the other investment partnerships under common control with you. As used in this letter agreement, the term “person” shall be broadly\ninterpreted to include, without limitation, the media, and any corporation, company, partnership, other entity or individual.\nUnless otherwise agreed to in writing by us, you agree (a) to keep all Proprietary Information confidential and not to disclose or reveal any\nProprietary Information to any person, including, without limitation, management or operations, other than your Representatives who are\nparticipating in your evaluation of the Proposed Transaction and who, in your reasonable judgment, need to know the Proprietary Information for the\npurpose of evaluating the Proposed Transaction, and who are informed of the confidential nature of the Proprietary Information and who agree to be\nbound by the non-disclosure and use limitation provisions of this letter agreement that are applicable to you, and (b) not to use Proprietary\nInformation, directly or indirectly, for any purpose, including, without limitation, to compete with the Company, other than in connection with your\nevaluation of the Proposed Transaction or the consummation of the Proposed Transaction pursuant to a final definitive agreement with the Company\n(“FDA”). You agree that the dissemination of Proprietary Information within your organization shall be strictly limited to the minimum possible\nnumber of people and only to those persons whose duties require that they know such Proprietary Information for purposes of evaluating the\nProposed Transaction, provided, further, that in no event will you share any of the Proprietary Information, the existence of this letter agreement or\nthe fact that you have received Proprietary Information with any operating management or personnel of any competing business which you operate\nunless you have received our prior written consent to do so.\nYou agree to inform each of your Representatives of the confidential nature of the Proprietary Information and of this letter agreement and to\nuse your reasonable best efforts to cause your Representatives to observe the terms of this letter agreement and not to use the Proprietary Information\nother than in connection with your evaluation of the Proposed Transaction. In any case, you will be responsible for any breach of the terms of this\nletter agreement by you or your Representatives and you agree at your sole expense to take all reasonable measures to restrain its Representatives\nfrom prohibited or unauthorized disclosure or use of Proprietary Information or other breach of this letter agreement.\nIn the event that you are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Proprietary\nInformation or any other information concerning the Company or the Proposed Transaction, you agree that, unless prohibited by applicable law, you\nwill provide us with prompt notice of such request or requirement in order to enable us to seek an appropriate protective order or other remedy, to\nconsult with you with respect to our taking steps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in\npart, with the terms of this letter agreement. If, failing the entry of a protective order or the receipt of a waiver hereunder, you are, on the advice of\nyour legal counsel to that effect, legally required to disclose Proprietary Information, you may, after notice to and consultation with us, disclose\nsolely that Proprietary Information which on the advice of legal counsel you are legally required to disclose. In any such event you will use your\nreasonable best efforts (and will reasonably cooperate with us in our efforts) to ensure that such Proprietary Information and other information that is\nso disclosed will be accorded confidential treatment.\nIn the event that you supply to the Company or to us or to any of our subsidiaries any information that you deem to be confidential (“Your\nConfidential Information”) then we agree that as regards Your Confidential Information we shall perform and observe mutatis mutandis the same\nobligations in this letter agreement as apply to you in respect of Proprietary Information and, in addition, that the same rights, benefits and beneficial\nexclusions that we have under this letter agreement shall also apply mutatis mutandis to you.\nYou acknowledge that the Company has the absolute right to determine what Proprietary Information, properties and personnel it wishes to\nmake available to you. During the course of your evaluation, you and your Representatives agree that you will not, directly or indirectly initiate\ncontact for any purpose relating to your\n-\nevaluation of the Proposed Transaction with any director, officer, employee, customer or supplier of the Company or any other third party actually\nknown to you to be related to the Company and that you will submit any requests for such contact only to Evercore Group L.L.C., as advisor to the\nCompany. If your evaluation of the Proposed Transaction is terminated by you or the Company, you and your Representatives will permanently\ncease all such contacts for any purposes relating to your evaluation of the Proposed Transaction, whether or not previously authorized.\nYou acknowledge that as of the date hereof, except as disclosed in the Company’s public filings with the Securities and Exchange Commission\nas of the date hereof, neither you nor any of your affiliates beneficially own any securities or rights to acquire any securities of the Company. You\nalso agree that for a period of one year from the date of this letter agreement, neither you nor any of your affiliates will, directly or indirectly, unless\nspecifically invited in writing to do so by the Board or, as appropriate, the Special Committee:\n(a) acquire, offer or seek to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of any securities\nor direct or indirect rights to acquire any securities of the Company (except pursuant to a stock split, stock dividend or reclassification), or of any\nsuccessor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or controlling\nperson (but with respect to such controlling person, only with respect to assets relating to the Company);\n(b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote or consent (as such terms are used in the\nrules of the Securities and Exchange Commission), or seek to advise or influence, alone or in concert with others, any person or entity with respect to\nthe voting of, or granting of a consent with respect to, any voting securities of the Company, or seek to control or influence, alone or in concert with\nothers, the management, Board of Directors or policies of the Company; (c) nominate, or seek to nominate, directly or indirectly, any person to the\nBoard of Directors;\n(d) make, effect, initiate, cause or participate in, directly or indirectly, or make any public announcement with respect to, or submit or make a\nproposal for, or offer of (with or without conditions) any merger, business combination, tender or exchange offer, recapitalization, restructuring,\nliquidation, dissolution or other extraordinary transaction involving the Company or any of its securities or assets;\n(e) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, and\nthe rules promulgated thereunder) in connection with any of the foregoing;\n(f) negotiate, discuss, advise, assist or encourage any other person in connection with the foregoing or take any other action intended to, or\nreasonably likely to, force the Company to make a public announcement regarding the types of matters set forth above;\n(g) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of any action referred to in clauses (a) through (e) above;\nor\n(h) request the Company, the Board, the Special Committee or any of the Company’s Representatives, directly or indirectly, to amend, waive\nor consider the amendment or waiver of any provision of this paragraph.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.\nIf you determine that you do not wish to proceed with further discussions and negotiations regarding the Proposed Transaction, you will\npromptly advise us of that decision. In that case, or in the event that we, in our sole discretion, so request or the Proposed Transaction is not\nconsummated by you, you will promptly deliver to us or destroy (and deliver to us a certification of such destruction) all Proprietary Information,\nincluding all\n_3-\ncopies, reproductions, electronic records, summaries, analyses or extracts thereof or based thereon in your possession or in the possession of any\nRepresentative of yours. However, you are allowed to keep copies of the Proprietary Information if required in order for you to meet legal\nrequirements and regulations.\nYou agree and acknowledge that the Company reserves the right, in its sole discretion and without any liability to you, to reject any and all\nproposals made by you or any of your Representatives with regard to a transaction between you and the Company and to terminate discussions and\nnegotiations with you at any time. You further agree and acknowledge that (a) the Board of Directors and the Special Committee shall be free to\nconduct the process for the Proposed Transaction as they in their sole discretion shall determine (including, without limitation, negotiating with any\nprospective counterparty and entering into an FDA without prior notice to you or to any other person), (b) any procedures relating to such Proposed\nTransaction may be changed at any time without notice to you or any other person and (c) you shall not have any claims whatsoever against the\nCompany, its Representatives or any of the respective officers, directors, employees, agents or controlling persons of such Representatives arising\nout of, or relating to, a possible transaction involving the Company.\nYou acknowledge that neither the Company nor its Representatives and none of the respective officers, directors, employees, agents or\ncontrolling persons of such Representatives makes any express or implied representation or warranty as to the accuracy or completeness of any\nProprietary Information. You agree that neither the Company nor its Representatives shall have any liability to you or any of your Representatives\nrelating to or arising from your or their use of any Proprietary Information or for any errors therein or omissions therefrom. It is understood that the\nscope of any representations and warranties to be given by the Company will be negotiated along with other terms and conditions in arriving at a\nmutually acceptable FDA should discussions between you and the Company progress to such a point. Only those representations and warranties that\nare made in an FDA when, as and if executed and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nYou agree that, without our prior written consent, you will not for a period of two years from the date hereof (the “Non-Solicit Period”)\ndirectly or indirectly cause or encourage any person to solicit for employment or employ any employee who is now employed by us or any of our\nsubsidiaries, including management, sales and technical personnel who is or becomes known to you as a result of your evaluation or otherwise in\nconnection with the Proposed Transaction. It is understood and agreed that the foregoing shall not be deemed to prohibit general solicitations of\nemployment not specifically directed toward employees of the Company; provided that notwithstanding anything contained herein, you will not\nemploy any of the individuals set forth on Exhibit A hereto during the Non-Solicit Period.\nWithout prejudice to the rights and remedies otherwise available to us, you agree that money damages would not be a sufficient remedy for\nbreach of this letter agreement and that we shall be entitled to obtain equitable relief by way of injunction or otherwise if you or any of your\nRepresentatives breach or threaten to breach any of the provisions of this letter agreement. You further agree to waive any requirement for security or\nposting of any bond in connection with any such equitable remedy.\nIt is further understood and agreed that no failure or delay by either you nor us in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder.\nThis letter agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to\ncontracts executed in and to be performed in that state. Any action arising out of or relating to this letter agreement shall be brought exclusively in\nthe state or federal courts sitting in the District of Delaware which we and you agree is a convenient forum.\nAny assignment of this letter agreement by you without our prior written consent shall be void.\n4-\nThis letter agreement contains the entire agreement between you and us concerning the subject matter hereof, and no modification of this letter\nagreement or waiver of the terms and conditions hereof shall be binding upon you or us, unless approved in writing by each of you and us. You\nacknowledge that the Board of Directors or Special Committee may condition your continued receipt of Proprietary Information on you entering into\nan amended or new confidentiality agreement. Any such new agreement shall supercede this letter agreement to the extent provided therein. The\nprovisions of the FDA may supersede this letter agreement and any such new agreement to the extent specifically set forth in the FDA.\nYou acknowledge that you are aware, and that you will advise your Representatives who receive Proprietary Information or otherwise are\ninformed as to the matters that are the subject matter of this letter agreement, of your and their obligations under the United States securities laws.\nThis letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall\nconstitute one and the same agreement.\n_5-\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed\nherewith.\nWESTWAY GROUP, INC.\nBy: /s/ Francis P. Jenkins, Jr.\nName: Francis P. Jenkins, Jr.\nTitle: Chairman of the Special Committee\nAccepted and Agreed as of\nthe date first written above:\nEQT Infrastructure II GP B.V.\nBy: /s/ G.J. Van der Ptoeg\nName: G.J. Van der Ptoeg\nTitle: Director\nBy: /s/ M.H.J. Hedeman Joosten\nName: M.H.J. Hedeman Joosten\nTitle: Director\nExhibit A\nCorporate:\nJames Jenkins, Chief Executive Officer\nThomas Masilla Jr., Chief Financial Officer and Secretary\nWade Blanchard, Vice President, European Health, Safety, Environmental, and Quality (“HSEQ”)\nChad Saltzman, Corporate Controller\nGrayson Marloff\nJoe Roussell\nHuman Resources:\nMarie O’Donnell\nInformation Technology:\nPeter Griffiths\nRakesh Bhansali\nWestway Feed Products LL.C:\nSteve Boehmer, President\nDr. Joe Harris, Executive Vice President\nBill Anderson, Director of Business Development\nMike Strobel, Director of Operations\nWillie Hayes, Director of Sales\nJerry Stephenson, National Accts. Manager\nRob Barrigan\nWestway Terminal Company LL.C:\nGene McClain, President\nBert van Holst, European Operations Director\nRobbie Johnson, VP of Operations and Engineering\nMark O’Donnell, Regional Sales Manager\nSteven Palm, Regional Sales Manager\nBill Johnston, Regional Manager\nBrian Kleczkowski, Regional Manager\nDino DeLuca, Regional Manager\nJennifer Montz\nEtienne Mostertman\nWestway Group, Inc.\n365 Canal Street, Suite 2900\nNew Orleans, LA 70130\nNovember 7, 2012\nEQT Infrastructure I GP B.V.1\nWorld Trade Center Schiphol\nH-Tower, Floor 4\nSchiphol Boulevard 355, 1118 BJ Schiphol\nThe Netherlands\nAttention: Déon Van der Ploeg, Managing Director\nMarc Hedeman Joosten, Legal Counsel\nGentlemen,\nReference is hereby made to the letter agreement (the “Letter Agreement”), dated October 30, 2012, by and between EQT Infrastructure II\nLimited Partnership (“you”) and Westway Group, Inc., a Delaware corporation (together with all of its subsidiaries, the “Company”). As used herein,\nthe terms “we” and “us” shall mean Westway Group, Inc., acting through its Board of Directors (the “Board”) or the special committee of the Board\n(the “Special Committee”) given the authority to act on behalf of the Board in this regard.\nThe parties hereto agree that, for purposes of the Letter Agreement, the term “Representatives” therein shall mean, as to any person, such\nperson’s affiliates, if any, and its and their (or their general partner’s, as applicable) directors, officers, employees, managing members, agents and\nadvisors (including, without limitation, financial advisors, potential sources of debt financing, counsel and accountants), together with the\n“Representatives” of such Representatives.\nExcept as expressly provided herein, all other terms and provisions of the Letter Agreement shall remain in full force and effect.\nThis letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall\nconstitute one and the same agreement.\n' EQT Infrastructure IT GP B.V., a private company with limited liability (“besloten vennootschap met beperkte aansprakelijkheid”) registered with\nthe commercial register of the Chambers of Commerce in the Netherlands under number 54468701 with its registered office at World Trade\nCenter Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands, acting in its capacity as general partner of EQT\nInfrastructure II Limited Partnership, a limited partnership registered in England and Wales under number LP014908, with its principal place of\nbusiness for the time being at World Trade Center Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed\nherewith.\nWESTWAY GROUP, INC.\nBy: /s/ Francis P. Jenkins, Jr.\nName: Francis P. Jenkins, Jr.\nTitle:  Chairman of the Special Committee\nAccepted and Agreed as of\nthe date first written above:\nEQT Infrastructure II GP B.V.\nBy: /s/ G.J. Van der Ptoeg\nName: G.J. Van der Ptoeg\nTitle: Director\nBy: /s/ M.H.J. Hedeman Joosten\nName: M.H.J. Hedeman Joosten\nTitle: Director	EX-99.(E)(6) 2 d459564dex99e6.htm CONFIDENTIALITY AGREEMENT DATED OCTOBER 30, 2012\nExhibit (e)(6)\nEXECUTION VERSION\nWestway Group, Inc.\n365 Canal Street, Suite 2900\nNew Orleans, LA 70130\nOctober 30, 2012\nEQT Infrastructure II GP B.V.1\nWorld Trade Center Schiphol\nH-Tower, Floor 4\nSchiphol Boulevard 355, 1118 BJ Schiphol\nThe Netherlands\nAttention:\nDeon Van der Ploeg, Managing Director\nMarc Hedeman Joosten, Legal Counsel\nGentlemen,\nIn order to allow EQT Infrastructure II Limited Partnership ("you"), to evaluate a potential negotiated transaction (the "Proposed Transaction")\nwith Westway Group, Inc., a Delaware corporation (together with all of its subsidiaries, the "Company"), we may in our discretion furnish to you,\nupon your execution and delivery to us of this letter agreement, certain information about the properties and operations of the Company. As used\nin\nthis\nletter agreement, the terms "we" and "us" shall mean Westway Group, Inc., acting through its Board of Directors (the "Board") or the special\ncommittee of the Board (the "Special Committee") given the authority to act on behalf of the Board in this regard. All information about the\nCompany furnished by us or our Representatives (as defined below), whether furnished before or after the date hereof, whether oral or written, and\nregardless\nof\nthe\nmanner\nin\nwhich\nit\nis\nfurnished,\nis\nreferred\nto\nin\nthis\nletter\nagreement\nas\n"Proprietary\nInformation."\nProprietary\nInformation\nincludes\n(i) all notes, analyses, compilations, studies or other documents prepared by you or your Representatives which contain or reflect or are based upon,\nin\nwhole or in part, the information furnished to you or your Representatives pursuant hereto, and (ii) the fact that the Company is considering and\nmay negotiate a Proposed Transaction, the terms or conditions or any other facts relating thereto, the fact that discussions are taking place with\nrespect thereto or the status thereof, the fact that this letter agreement has been executed and the fact that Proprietary Information has been made\navailable to you or your Representatives. Proprietary Information does not include information which (a) is or becomes generally available to the\npublic other than as a result of a disclosure by you or your Representatives in breach of this letter agreement, (b) was available to you or your\nRepresentatives on a nonconfidential basis prior to its disclosure by us or our Representatives; provided that the source of such information is not\nknown to you to be bound by a confidentiality agreement with us or any Representative of ours, or is otherwise not under an obligation to us or\nany\nRepresentative of ours not to transmit the information to you, or (c) becomes available to you or your Representatives on a nonconfidential basis\nfrom a person other than us or our Representatives who is not otherwise known to you to be bound by a confidentiality agreement with us or any\nRepresentative of ours, or is otherwise not under an obligation to us or any Representative of ours not to transmit the information to you. As used\nin\nthis letter agreement, the term "Representative" means, as to any person, such person's affiliates, if any, and its and their (or their general partner's,\nas applicable) directors, officers, employees, managing members, agents and advisors (including, without limitation, financial advisors, counsel and\naccountants), together with the "Representatives" of such Representatives; provided, that your "affiliates" for purposes of this letter agreement shall\ninclude, as applicable, your general partner, manager the managing members of your general\n1\nEQT Infrastructure II GP B.V., a private company with limited liability ("besloten vennootschap met beperkte aansprakelijkheid") registered with\nthe commercial register of the Chambers of Commerce in the Netherlands under number 54468701 with its registered office at World Trade\nCenter Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands, acting in its capacity as general partner of EQT\nInfrastructure II Limited Partnership, a limited partnership registered in England and Wales under number LP014908, with its principal place\nof\nbusiness for the time being at World Trade Center Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands.\npartner and the other investment partnerships under common control with you. As used in this letter agreement, the term "person" shall be broadly\ninterpreted to include, without limitation, the media, and any corporation, company, partnership, other entity or individual.\nUnless otherwise agreed to in writing by us, you agree (a) to keep all Proprietary Information confidential and not to disclose or reveal any\nProprietary Information to any person, including, without limitation, management or operations, other than your Representatives who are\nparticipating\nin\nyour\nevaluation\nof\nthe\nProposed\nTransaction\nand\nwho,\nin\nyour\nreasonable\njudgment,\nneed\nto\nknow\nthe\nProprietary\nInformation\nfor\nthe\npurpose of evaluating the Proposed Transaction, and who are informed of the confidential nature of the Proprietary Information and who agree to be\nbound by the non-disclosure and use limitation provisions of this letter agreement that are applicable to you, and (b) not to use Proprietary\nInformation, directly or indirectly, for any purpose, including, without limitation, to compete with the Company, other than in connection with your\nevaluation of the Proposed Transaction or the consummation of the Proposed Transaction pursuant to a final definitive agreement with the Company\n("FDA"). You agree that the dissemination of Proprietary Information within your organization shall be strictly limited to the minimum possible\nnumber of people and only to those persons whose duties require that they know such Proprietary Information for purposes of evaluating the\nProposed Transaction, provided, further, that in no event will you share any of the Proprietary Information, the existence of this letter agreement or\nthe fact that you have received Proprietary Information with any operating management or personnel of any competing business which you operate\nunless you have received our prior written consent to do so.\nYou agree to inform each of your Representatives of the confidential nature of the Proprietary Information and of this letter agreement and to\nuse your reasonable best efforts to cause your Representatives to observe the terms of this letter agreement and not to use the Proprietary Information\nother than in connection with your evaluation of the Proposed Transaction. In any case, you will be responsible for any breach of the terms of this\nletter agreement by you or your Representatives and you agree at your sole expense to take all reasonable measures to restrain its Representatives\nfrom prohibited or unauthorized disclosure or use of Proprietary Information or other breach of this letter agreement.\nIn the event that you are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Proprietary\nInformation or any other information concerning the Company or the Proposed Transaction, you agree that, unless prohibited by applicable law, you\nwill provide us with prompt notice of such request or requirement in order to enable us to seek an appropriate protective order or other remedy, to\nconsult with you with respect to our taking steps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in\npart, with the terms of this letter agreement. If, failing the entry of a protective order or the receipt of a waiver hereunder, you are, on the advice\nof\nyour legal counsel to that effect, legally required to disclose Proprietary Information, you may, after notice to and consultation with us, disclose\nsolely that Proprietary Information which on the advice of legal counsel you are legally required to disclose. In any such event you will use your\nreasonable best efforts (and will reasonably cooperate with us in our efforts) to ensure that such Proprietary Information and other information that\nis\nso disclosed will be accorded confidentia treatment.\nIn the event that you supply to the Company or to us or to any of our subsidiaries any information that you deem to be confidential ("Your\nConfidential Information") then we agree that as regards Your Confidential Information we shall perform and observe mutatis mutandis the same\nobligations in this letter agreement as apply to you in respect of Proprietary Information and, in addition, that the same rights, benefits and beneficial\nexclusions that we have under this letter agreement shall also apply mutatis mutandis to you.\nYou acknowledge that the Company has the absolute right to determine what Proprietary Information, properties and personnel it wishes to\nmake available to you. During the course of your evaluation, you and your Representatives agree that you will not, directly or indirectly initiate\ncontact for any purpose relating to your\n-2-\nevaluation of the Proposed Transaction with any director, officer, employee, customer or supplier of the Company or any other third party actually\nknown to you to be related to the Company and that you will submit any requests for such contact only to Evercore Group L.L.C., as advisor to the\nCompany. If your evaluation of the Proposed Transaction is terminated by you or the Company, you and your Representatives will permanently\ncease all such contacts for any purposes relating to your evaluation of the Proposed Transaction, whether or not previously authorized.\nYou acknowledge that as of the date hereof, except as disclosed in the Company's public filings with the Securities and\nExchange\nCommission\nas of the date hereof, neither you nor any of your affiliates beneficially own any securities or rights to acquire any securities of the Company. You\nalso agree that for a period of one year from the date of this letter agreement, neither you nor any of your affiliates will, directly or indirectly, unless\nspecifically invited in writing to do so by the Board or, as appropriate, the Special Committee:\n(a) acquire, offer or seek to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of any securities\nor direct or indirect rights to acquire any securities of the Company (except pursuant to a stock split, stock dividend or reclassification), or of any\nsuccessor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or controlling\nperson (but with respect to such controlling person, only with respect to assets relating to the Company);\n(b) make, or in any way participate, directly or indirectly, in any "solicitation" of "proxies" to vote or consent (as such terms are used in the\nrules of the Securities and Exchange Commission), or seek to advise or influence, alone or in concert with others, any person or entity with respect\nto\nthe voting of, or granting of a consent with respect to, any voting securities of the Company, or seek to control or influence, alone or in concert with\nothers, the management, Board of Directors or policies of the Company; (c) nominate, or seek to nominate, directly or indirectly, any person to the\nBoard of Directors;\n(d) make, effect, initiate, cause or participate in, directly or indirectly, or make any public announcement with respect to, or submit or make a\nproposal for, or offer of (with or without conditions) any merger, business combination, tender or exchange offer, recapitalization, restructuring,\nliquidation, dissolution or other extraordinary transaction involving the Company or any of its securities or assets;\n(e) form, join or in any way participate in a "group" (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, and\nthe rules promulgated thereunder) in connection with any of the foregoing;\n(f) negotiate, discuss, advise, assist or encourage any other person in connection with the foregoing or take any other action intended to, or\nreasonably likely to, force the Company to make a public announcement regarding the types of matters set forth above;\n(g) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of any action referred to in clauses (a) through (e) above;\nor\n(h) request the Company, the Board, the Special Committee or any of the Company's Representatives, directly or indirectly, to amend, waive\nor consider the amendment or waiver of any provision of this paragraph.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.\nIf you determine that you do not wish to proceed with further discussions and negotiations regarding the Proposed Transaction, you will\npromptly advise us of that decision. In that case, or in the event that we, in our sole discretion, so request or the Proposed Transaction is not\nconsummated by you, you will promptly deliver to us or destroy (and deliver to us a certification of such destruction) all Proprietary Information,\nincluding all\n-3-\ncopies, reproductions, electronic records, summaries, analyses or extracts thereof or based thereon in your possession or in the possession of any\nRepresentative of yours. However, you are allowed to keep copies of the Proprietary Information if required in order for you to meet legal\nrequirements and regulations.\nYou agree and acknowledge that the Company reserves the right, in its sole discretion and without any liability to you, to reject any and all\nproposals made by you or any of your Representatives with regard to a transaction between you and the Company and to terminate discussions and\nnegotiations with you at any time. You further agree and acknowledge that (a) the Board of Directors and the Special Committee shall be free to\nconduct the process for the Proposed Transaction as they in their sole discretion shall determine (including, without limitation, negotiating with any\nprospective counterparty and entering into an FDA without prior notice to you or to any other person), (b) any procedures relating to such Proposed\nTransaction may be changed at any time without notice to you or any other person and (c) you shall not have any claims whatsoever against the\nCompany, its Representatives or any of the respective officers, directors, employees, agents or controlling persons of such Representatives arising\nout of, or relating to, a possible transaction involving the Company.\nYou acknowledge that neither the Company nor its Representatives and none of the respective officers, directors, employees, agents or\ncontrolling persons of such Representatives makes any express or implied representation or warranty as to the accuracy or completeness of any\nProprietary Information You agree that neither the Company nor its Representatives shall have any liability to you or any of your Representatives\nrelating to or arising from your or their use of any Proprietary Information or for any errors therein or omissions therefrom. It is understood that the\nscope of any representations and warranties to be given by the Company will be negotiated along with other terms and conditions in arriving at a\nmutually acceptable FDA should discussions between you and the Company progress to such a point. Only those representations and warranties\nthat\nare made in an FDA when, as and if executed and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nYou agree that, without our prior written consent, you will not for a period of two years from the date hereof (the "Non-Solicit Period")\ndirectly or indirectly cause or encourage any person to solicit for employment or employ any employee who is now employed by us or any of our\nsubsidiaries, including management, sales and technical personnel who is or becomes known to you as a result of your evaluation or otherwise\nin\nconnection with the Proposed Transaction. It is understood and agreed that the foregoing shall not be deemed to prohibit general solicitations of\nemployment not specifically directed toward employees of the Company; provided that notwithstanding anything contained herein, you will not\nemploy any of the individuals set forth on Exhibit A hereto during the Non-Solicit Period.\nWithout prejudice to the rights and remedies otherwise available to us, you agree that money damages would not be a sufficient remedy for\nbreach of this letter agreement and that we shall be entitled to obtain equitable relief by way of injunction or otherwise if you or any of your\nRepresentatives breach or threaten to breach any of the provisions of this letter agreement. You further agree to waive any requirement for security or\nposting of any bond in connection with any such equitable remedy.\nIt is further understood and agreed that no failure or delay by either you nor us in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder.\nThis letter agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to\ncontracts executed in and to be performed in that state. Any action arising out of or relating to this letter agreement shall be brought exclusively in\nthe state or federal courts sitting in the District of Delaware which we and you agree is a convenient forum.\nAny assignment of this letter agreement by you without our prior written consent shall be void.\n-4-\nThis letter agreement contains the entire agreement between you and us concerning the subject matter hereof, and no modification of this letter\nagreement or waiver of the terms and conditions hereof shall be binding upon you or us, unless approved in writing by each of you and us. You\nacknowledge that the Board of Directors or Special Committee may condition your continued receipt of Proprietary Information on you entering into\nan amended or new confidentiality agreement. Any such new agreement shall supercede this letter agreement to the extent provided therein. The\nprovisions of the FDA may supersede this letter agreement and any such new agreement to the extent specifically set forth in the FDA.\nYou acknowledge that you are aware, and that you will advise your Representatives who receive Proprietary Information or otherwise are\ninformed as to the matters that are the subject matter of this letter agreement, of your and their obligations under the United States securities\nlaws.\nThis letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall\nconstitute one and the same agreement.\n-5-\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed\nherewith.\nWESTWAY GROUP, INC.\nBy: /s/ Francis P. Jenkins, Jr.\nName: Francis P. Jenkins, Jr.\nTitle: Chairman of the Special Committee\nAccepted and Agreed as of\nthe date first written above:\nEQT Infrastructure II GP B.V.\nBy: /s/ G.J. Van der Ptoeg\nName: G.J. Van der Ptoeg\nTitle: Director\nBy: /s/ M.H.J. Hedeman Joosten\nName: M.H.J. Hedeman Joosten\nTitle: Director\nExhibit A\nCorporate:\nJames Jenkins, Chief Executive Officer\nThomas Masilla Jr., Chief Financial Officer and Secretary\nWade Blanchard, Vice President, European Health, Safety, Environmental, and Quality ("HSEQ")\nChad Saltzman, Corporate Controller\nGrayson Marloff\nJoe Roussell\nHuman Resources:\nMarie O'Donnell\nInformation Technology:\nPeter Griffiths\nRakesh Bhansali\nWestway Feed Products LLC:\nSteve Boehmer, President\nDr. Joe Harris, Executive Vice President\nBill Anderson, Director of Business Development\nMike Strobel, Director of Operations\nWillie Hayes, Director of Sales\nJerry Stephenson, National Accts. Manager\nRob Barrigan\nWestway Terminal Company LLC:\nGene McClain, President\nBert van Holst, European Operations Director\nRobbie Johnson, VP of Operations and Engineering\nMark O'Donnell, Regional Sales Manager\nSteven Palm, Regional Sales Manager\nBill Johnston, Regional Manager\nBrian Kleczkowski, Regional Manager\nDino DeLuca, Regional Manager\nJennifer Montz\nEtienne Mostertman\nWestway Group, Inc.\n365 Canal Street, Suite 2900\nNew Orleans, LA 70130\nNovember 7, 2012\nEQT Infrastructure II GP B.V.1\nWorld Trade Center Schiphol\nH-Tower, Floor 4\nSchiphol Boulevard 355, 1118 BJ Schiphol\nThe Netherlands\nAttention:\nDeon Van der Ploeg, Managing Director\nMarc Hedeman Joosten, Legal Counsel\nGentlemen,\nReference is hereby made to the letter agreement (the "Letter Agreement"), dated October 30, 2012, by and between EQT Infrastructure II\nLimited Partnership ("you") and Westway Group, Inc., a Delaware corporation (together with all of its subsidiaries, the "Company"). As used herein,\nthe terms "we" and "us" shall mean Westway Group, Inc., acting through its Board of Directors (the "Board") or the special committee of the Board\n(the "Special Committee") given the authority to act on behalf of the Board in this regard.\nThe parties hereto agree that, for purposes of the Letter Agreement, the term "Representatives" therein shall mean, as to any person, such\nperson's affiliates, if any, and its and their (or their general partner's, as applicable) directors, officers, employees, managing members, agents and\nadvisors (including, without limitation, financial advisors, potential sources of debt financing, counsel and accountants), together with the\n"Representatives" of such Representatives.\nExcept as expressly provided herein, all other terms and provisions of the Letter Agreement shall remain in full force and effect.\nThis letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall\nconstitute one and the same agreement.\n1 EQT Infrastructure II GP B.V., a private company with limited liability ("besloten vennootschap met beperkte aansprakelijkheid") registered with\nthe commercial register of the Chambers of Commerce in the Netherlands under number 54468701 with its registered office at World Trade\nCenter Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands, acting in its capacity as general partner of EQT\nInfrastructure II Limited Partnership, a limited partnership registered in England and Wales under number LP014908, with its principal place of\nbusiness for the time being at World Trade Center Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed\nherewith.\nWESTWAY GROUP, INC.\nBy: /s/ Francis P. Jenkins, Jr.\nName: Francis P. Jenkins, Jr.\nTitle: Chairman of the Special Committee\nAccepted and Agreed as of\nthe date first written above:\nEQT Infrastructure II GP B.V.\nBy: /s/ G.J. Van der Ptoeg\nName: G.J. Van der Ptoeg\nTitle: Director\nBy: /s/ M.H.J. Hedeman Joosten\nName: M.H.J. Hedeman Joosten\nTitle: Director	EX-99.(E)(6) 2 d459564dex99e6.htm CONFIDENTIALITY AGREEMENT DATED OCTOBER 30, 2012\nExhibit (e)(6)\nEXECUTION VERSION\nWestway Group, Inc.\n365 Canal Street, Suite 2900\nNew Orleans, LA 70130\nOctober 30, 2012\nEQT Infrastructure II GP B.V.\nWorld Trade Center Schiphol\nH-Tower, Floor 4\nSchiphol Boulevard 355, 1118 BJ Schiphol\nThe Netherlands\nAttention:\nDêon Van der Ploeg, Managing Director\nMarc Hedeman Joosten, Legal Counsel\nGentlemen,\nIn order to allow EQT Infrastructure II Limited Partnership (“you”), to evaluate a potential negotiated transaction (the “Proposed Transaction”)\nwith Westway Group, Inc., a Delaware corporation (together with all of its subsidiaries, the “Company”), we may in our discretion furnish to you,\nupon your execution and delivery to us of this letter agreement, certain information about the properties and operations of the Company. As used in\nthis letter agreement, the terms “we” and “us” shall mean Westway Group, Inc., acting through its Board of Directors (the “Board”) or the special\ncommittee of the Board (the “Special Committee”) given the authority to act on behalf of the Board in this regard. All information about the\nCompany furnished by us or our Representatives (as defined below), whether furnished before or after the date hereof, whether oral or written, and\nregardless of the manner in which it is furnished, is referred to in this letter agreement as “Proprietary Information.” Proprietary Information includes\n(i) all notes, analyses, compilations, studies or other documents prepared by you or your Representatives which contain or reflect or are based upon,\nin whole or in part, the information furnished to you or your Representatives pursuant hereto, and (ii) the fact that the Company is considering and\nmay negotiate a Proposed Transaction, the terms or conditions or any other facts relating thereto, the fact that discussions are taking place with\nrespect thereto or the status thereof, the fact that this letter agreement has been executed and the fact that Proprietary Information has been made\navailable to you or your Representatives. Proprietary Information does not include information which (a) is or becomes generally available to the\npublic other than as a result of a disclosure by you or your Representatives in breach of this letter agreement, (b) was available to you or your\nRepresentatives on a nonconfidential basis prior to its disclosure by us or our Representatives; provided that the source of such information is not\nknown to you to be bound by a confidentiality agreement with us or any Representative of ours, or is otherwise not under an obligation to us or any\nRepresentative of ours not to transmit the information to you, or (c) becomes available to you or your Representatives on a nonconfidential basis\nfrom a person other than us or our Representatives who is not otherwise known to you to be bound by a confidentiality agreement with us or any\nRepresentative of ours, or is otherwise not under an obligation to us or any Representative of ours not to transmit the information to you. As used in\nthis letter agreement, the term “Representative” means, as to any person, such person’s affiliates, if any, and its and their (or their general partner’s,\nas applicable) directors, officers, employees, managing members, agents and advisors (including, without limitation, financial advisors, counsel and\naccountants), together with the “Representatives” of such Representatives; provided, that your “affiliates” for purposes of this letter agreement shall\ninclude, as applicable, your general partner, manager, the managing members of your general\nEQT Infrastructure II GP B.V., a private company with limited liability (“besloten vennootschap met beperkte aansprakelijkheid”) registered with\nthe commercial register of the Chambers of Commerce in the Netherlands under number 54468701 with its registered office at World Trade\nCenter Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands, acting in its capacity as general partner of EQT\nInfrastructure II Limited Partnership, a limited partnership registered in England and Wales under number LP014908, with its principal place of\nbusiness for the time being at World Trade Center Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands.\n1\n1\npartner and the other investment partnerships under common control with you. As used in this letter agreement, the term “person” shall be broadly\ninterpreted to include, without limitation, the media, and any corporation, company, partnership, other entity or individual.\nUnless otherwise agreed to in writing by us, you agree (a) to keep all Proprietary Information confidential and not to disclose or reveal any\nProprietary Information to any person, including, without limitation, management or operations, other than your Representatives who are\nparticipating in your evaluation of the Proposed Transaction and who, in your reasonable judgment, need to know the Proprietary Information for the\npurpose of evaluating the Proposed Transaction, and who are informed of the confidential nature of the Proprietary Information and who agree to be\nbound by the non-disclosure and use limitation provisions of this letter agreement that are applicable to you, and (b) not to use Proprietary\nInformation, directly or indirectly, for any purpose, including, without limitation, to compete with the Company, other than in connection with your\nevaluation of the Proposed Transaction or the consummation of the Proposed Transaction pursuant to a final definitive agreement with the Company\n(“FDA”). You agree that the dissemination of Proprietary Information within your organization shall be strictly limited to the minimum possible\nnumber of people and only to those persons whose duties require that they know such Proprietary Information for purposes of evaluating the\nProposed Transaction, provided, further, that in no event will you share any of the Proprietary Information, the existence of this letter agreement or\nthe fact that you have received Proprietary Information with any operating management or personnel of any competing business which you operate\nunless you have received our prior written consent to do so.\nYou agree to inform each of your Representatives of the confidential nature of the Proprietary Information and of this letter agreement and to\nuse your reasonable best efforts to cause your Representatives to observe the terms of this letter agreement and not to use the Proprietary Information\nother than in connection with your evaluation of the Proposed Transaction. In any case, you will be responsible for any breach of the terms of this\nletter agreement by you or your Representatives and you agree at your sole expense to take all reasonable measures to restrain its Representatives\nfrom prohibited or unauthorized disclosure or use of Proprietary Information or other breach of this letter agreement.\nIn the event that you are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Proprietary\nInformation or any other information concerning the Company or the Proposed Transaction, you agree that, unless prohibited by applicable law, you\nwill provide us with prompt notice of such request or requirement in order to enable us to seek an appropriate protective order or other remedy, to\nconsult with you with respect to our taking steps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in\npart, with the terms of this letter agreement. If, failing the entry of a protective order or the receipt of a waiver hereunder, you are, on the advice of\nyour legal counsel to that effect, legally required to disclose Proprietary Information, you may, after notice to and consultation with us, disclose\nsolely that Proprietary Information which on the advice of legal counsel you are legally required to disclose. In any such event you will use your\nreasonable best efforts (and will reasonably cooperate with us in our efforts) to ensure that such Proprietary Information and other information that is\nso disclosed will be accorded confidential treatment.\nIn the event that you supply to the Company or to us or to any of our subsidiaries any information that you deem to be confidential (“Your\nConfidential Information”) then we agree that as regards Your Confidential Information we shall perform and observe mutatis mutandis the same\nobligations in this letter agreement as apply to you in respect of Proprietary Information and, in addition, that the same rights, benefits and beneficial\nexclusions that we have under this letter agreement shall also apply mutatis mutandis to you.\nYou acknowledge that the Company has the absolute right to determine what Proprietary Information, properties and personnel it wishes to\nmake available to you. During the course of your evaluation, you and your Representatives agree that you will not, directly or indirectly initiate\ncontact for any purpose relating to your\n-2-\nevaluation of the Proposed Transaction with any director, officer, employee, customer or supplier of the Company or any other third party actually\nknown to you to be related to the Company and that you will submit any requests for such contact only to Evercore Group L.L .C., as advisor to the\nCompany. If your evaluation of the Proposed Transaction is terminated by you or the Company, you and your Representatives will permanently\ncease all such contacts for any purposes relating to your evaluation of the Proposed Transaction, whether or not previously authorized.\nYou acknowledge that as of the date hereof, except as disclosed in the Company’s public filings with the Securities and Exchange Commission\nas of the date hereof, neither you nor any of your affiliates beneficially own any securities or rights to acquire any securities of the Company. You\nalso agree that for a period of one year from the date of this letter agreement, neither you nor any of your affiliates will, directly or indirectly, unless\nspecifically invited in writing to do so by the Board or, as appropriate, the Special Committee:\n(a) acquire, offer or seek to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, beneficial ownership of any securities\nor direct or indirect rights to acquire any securities of the Company (except pursuant to a stock split, stock dividend or reclassification), or of any\nsuccessor to or person in control of the Company, or any assets of the Company or any division thereof or of any such successor or controlling\nperson (but with respect to such controlling person, only with respect to assets relating to the Company);\n(b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote or consent (as such terms are used in the\nrules of the Securities and Exchange Commission), or seek to advise or influence, alone or in concert with others, any person or entity with respect to\nthe voting of, or granting of a consent with respect to, any voting securities of the Company, or seek to control or influence, alone or in concert with\nothers, the management, Board of Directors or policies of the Company; (c) nominate, or seek to nominate, directly or indirectly, any person to the\nBoard of Directors;\n(d) make, effect, initiate, cause or participate in, directly or indirectly, or make any public announcement with respect to, or submit or make a\nproposal for, or offer of (with or without conditions) any merger, business combination, tender or exchange offer, recapitalization, restructuring,\nliquidation, dissolution or other extraordinary transaction involving the Company or any of its securities or assets;\n(e) form, join or in any way participate in a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, and\nthe rules promulgated thereunder) in connection with any of the foregoing;\n(f) negotiate, discuss, advise, assist or encourage any other person in connection with the foregoing or take any other action intended to, or\nreasonably likely to, force the Company to make a public announcement regarding the types of matters set forth above;\n(g) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of any action referred to in clauses (a) through (e) above;\nor\n(h) request the Company, the Board, the Special Committee or any of the Company’s Representatives, directly or indirectly, to amend, waive\nor consider the amendment or waiver of any provision of this paragraph.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.\nIf you determine that you do not wish to proceed with further discussions and negotiations regarding the Proposed Transaction, you will\npromptly advise us of that decision. In that case, or in the event that we, in our sole discretion, so request or the Proposed Transaction is not\nconsummated by you, you will promptly deliver to us or destroy (and deliver to us a certification of such destruction) all Proprietary Information,\nincluding all\n-3-\ncopies, reproductions, electronic records, summaries, analyses or extracts thereof or based thereon in your possession or in the possession of any\nRepresentative of yours. However, you are allowed to keep copies of the Proprietary Information if required in order for you to meet legal\nrequirements and regulations.\nYou agree and acknowledge that the Company reserves the right, in its sole discretion and without any liability to you, to reject any and all\nproposals made by you or any of your Representatives with regard to a transaction between you and the Company and to terminate discussions and\nnegotiations with you at any time. You further agree and acknowledge that (a) the Board of Directors and the Special Committee shall be free to\nconduct the process for the Proposed Transaction as they in their sole discretion shall determine (including, without limitation, negotiating with any\nprospective counterparty and entering into an FDA without prior notice to you or to any other person), (b) any procedures relating to such Proposed\nTransaction may be changed at any time without notice to you or any other person and (c) you shall not have any claims whatsoever against the\nCompany, its Representatives or any of the respective officers, directors, employees, agents or controlling persons of such Representatives arising\nout of, or relating to, a possible transaction involving the Company.\nYou acknowledge that neither the Company nor its Representatives and none of the respective officers, directors, employees, agents or\ncontrolling persons of such Representatives makes any express or implied representation or warranty as to the accuracy or completeness of any\nProprietary Information. You agree that neither the Company nor its Representatives shall have any liability to you or any of your Representatives\nrelating to or arising from your or their use of any Proprietary Information or for any errors therein or omissions therefrom. It is understood that the\nscope of any representations and warranties to be given by the Company will be negotiated along with other terms and conditions in arriving at a\nmutually acceptable FDA should discussions between you and the Company progress to such a point. Only those representations and warranties that\nare made in an FDA when, as and if executed and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nYou agree that, without our prior written consent, you will not for a period of two years from the date hereof (the “Non-Solicit Period”)\ndirectly or indirectly cause or encourage any person to solicit for employment or employ any employee who is now employed by us or any of our\nsubsidiaries, including management, sales and technical personnel who is or becomes known to you as a result of your evaluation or otherwise in\nconnection with the Proposed Transaction. It is understood and agreed that the foregoing shall not be deemed to prohibit general solicitations of\nemployment not specifically directed toward employees of the Company; provided that notwithstanding anything contained herein, you will not\nemploy any of the individuals set forth on Exhibit A hereto during the Non-Solicit Period.\nWithout prejudice to the rights and remedies otherwise available to us, you agree that money damages would not be a sufficient remedy for\nbreach of this letter agreement and that we shall be entitled to obtain equitable relief by way of injunction or otherwise if you or any of your\nRepresentatives breach or threaten to breach any of the provisions of this letter agreement. You further agree to waive any requirement for security or\nposting of any bond in connection with any such equitable remedy.\nIt is further understood and agreed that no failure or delay by either you nor us in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder.\nThis letter agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to\ncontracts executed in and to be performed in that state. Any action arising out of or relating to this letter agreement shall be brought exclusively in\nthe state or federal courts sitting in the District of Delaware which we and you agree is a convenient forum.\nAny assignment of this letter agreement by you without our prior written consent shall be void.\n-4-\nThis letter agreement contains the entire agreement between you and us concerning the subject matter hereof, and no modification of this letter\nagreement or waiver of the terms and conditions hereof shall be binding upon you or us, unless approved in writing by each of you and us. You\nacknowledge that the Board of Directors or Special Committee may condition your continued receipt of Proprietary Information on you entering into\nan amended or new confidentiality agreement. Any such new agreement shall supercede this letter agreement to the extent provided therein. The\nprovisions of the FDA may supersede this letter agreement and any such new agreement to the extent specifically set forth in the FDA.\nYou acknowledge that you are aware, and that you will advise your Representatives who receive Proprietary Information or otherwise are\ninformed as to the matters that are the subject matter of this letter agreement, of your and their obligations under the United States securities laws.\nThis letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall\nconstitute one and the same agreement.\n-5-\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed\nherewith.\nWESTWAY GROUP, INC.\nBy: /s/ Francis P. Jenkins, Jr.\nName: Francis P. Jenkins, Jr.\nTitle: Chairman of the Special Committee\nAccepted and Agreed as of\nthe date first written above:\nEQT Infrastructure II GP B.V.\nBy: /s/ G.J . Van der Ptoeg\nName: G.J. Van der Ptoeg\nTitle: Director\nBy: /s/ M.H.J . Hedeman Joosten\nName: M.H .J . Hedeman Joosten\nTitle: Director\nExhibit A\nCorporate:\nJames Jenkins, Chief Executive Officer\nThomas Masilla Jr., Chief Financial Officer and Secretary\nWade Blanchard, Vice President, European Health, Safety, Environmental, and Quality (“HSEQ”)\nChad Saltzman, Corporate Controller\nGrayson Marloff\nJoe Roussell\nHuman Resources:\nMarie O’Donnell\nInformation Technology:\nPeter Griffiths\nRakesh Bhansali\nWestway Feed Products LLC:\nSteve Boehmer, President\nDr. Joe Harris, Executive Vice President\nBill Anderson, Director of Business Development\nMike Strobel, Director of Operations\nWillie Hayes, Director of Sales\nJerry Stephenson, National Accts. Manager\nRob Barrigan\nWestway Terminal Company LLC:\nGene McClain, President\nBert van Holst, European Operations Director\nRobbie Johnson, VP of Operations and Engineering\nMark O’Donnell, Regional Sales Manager\nSteven Palm, Regional Sales Manager\nBill Johnston, Regional Manager\nBrian Kleczkowski, Regional Manager\nDino DeLuca, Regional Manager\nJennifer Montz\nEtienne Mostertman\nWestway Group, Inc.\n365 Canal Street, Suite 2900\nNew Orleans, LA 70130\nNovember 7, 2012\nEQT Infrastructure II GP B.V.\nWorld Trade Center Schiphol\nH-Tower, Floor 4\nSchiphol Boulevard 355, 1118 BJ Schiphol\nThe Netherlands\nAttention:\nDêon Van der Ploeg, Managing Director\nMarc Hedeman Joosten, Legal Counsel\nGentlemen,\nReference is hereby made to the letter agreement (the “Letter Agreement”), dated October 30, 2012, by and between EQT Infrastructure II\nLimited Partnership (“you”) and Westway Group, Inc., a Delaware corporation (together with all of its subsidiaries, the “Company”). As used herein,\nthe terms “we” and “us” shall mean Westway Group, Inc., acting through its Board of Directors (the “Board”) or the special committee of the Board\n(the “Special Committee”) given the authority to act on behalf of the Board in this regard.\nThe parties hereto agree that, for purposes of the Letter Agreement, the term “Representatives” therein shall mean, as to any person, such\nperson’s affiliates, if any, and its and their (or their general partner’s, as applicable) directors, officers, employees, managing members, agents and\nadvisors (including, without limitation, financial advisors, potential sources of debt financing, counsel and accountants), together with the\n“Representatives” of such Representatives.\nExcept as expressly provided herein, all other terms and provisions of the Letter Agreement shall remain in full force and effect.\nThis letter agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall\nconstitute one and the same agreement.\nEQT Infrastructure II GP B.V., a private company with limited liability (“besloten vennootschap met beperkte aansprakelijkheid”) registered with\nthe commercial register of the Chambers of Commerce in the Netherlands under number 54468701 with its registered office at World Trade\nCenter Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands, acting in its capacity as general partner of EQT\nInfrastructure II Limited Partnership, a limited partnership registered in England and Wales under number LP014908, with its principal place of\nbusiness for the time being at World Trade Center Schiphol, H-Tower, Floor 4, Schiphol Boulevard 355, 1118 BJ Schiphol, the Netherlands.\n1\n1\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter enclosed\nherewith.\nWESTWAY GROUP, INC.\nBy: /s/ Francis P. Jenkins, Jr.\nName: Francis P. Jenkins, Jr.\nTitle: Chairman of the Special Committee\nAccepted and Agreed as of\nthe date first written above:\nEQT Infrastructure II GP B.V.\nBy: /s/ G.J . Van der Ptoeg\nName: G.J. Van der Ptoeg\nTitle: Director\nBy: /s/ M.H.J . Hedeman Joosten\nName: M.H .J . Hedeman Joosten\nTitle: Director
+6542d2bf40e9b59abc61ad5ed7644852.pdf	effective_date jurisdiction party term	EX-10.9 4 ex10_9.txt NON COMPETE AGREEMENT COVENANT NOT TO COMPETE AND NON-DISCLOSURE\nAGREEMENT PARTIES: Mark G. Parker (EMPLOYEE) NIKE, Inc., an Oregon corporation, and its divisions,\nsubsidiaries and affiliates (NIKE) DATE: October 6, 1994 RECITALS: A. This Covenant Not to Compete is executed\nupon the EMPLOYEE's assumption of additional responsibilities for worldwide marketing and development activities of\nNIKE. B. Over the course of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or\nin a position to generate confidential information including but not limited to confidential techniques, methods, styles,\ndesigns and design concepts, developments, customer lists, vendor lists, contract factory lists, pricing information,\nmanufacturing plans, business plans, marketing plans, sales information, methods of operation, knowledge and data\nrelating to processes, products, machines, compounds and compositions, formulae, lasts and molds. It is anticipated that\nEMPLOYEE will continue to be exposed to confidential information, will be exposed to more confidential information\nand to confidential information of greater sensitivity as EMPLOYEE advances in the company. This confidential\ninformation is information peculiar to NIKE's business. The nature of NIKE's business is highly competitive and\ndisclosure of any confidential information would result in severe damage to NIKE and be difficult to measure. C . NIKE\nmakes use of the confidential information described in paragraph B above throughout the world. This confidential\ninformation of NIKE can be used to NIKE's detriment anywhere in the world. D. The provisions of this Covenant Not to\nCompete and Non-Disclosure Agreement are a condition of EMPLOYEE's employment advancement with NIKE. E.\nThe provisions of this Covenant Not to Compete and Non-Disclosure Agreement are reasonable. AGREEMENTS: 1.\nCOVENANT NOT TO COMPETE. During the period of time EMPLOYEE is employed by NIKE, under the terms of\nany employment contract or otherwise, and for one (1) year thereafter, EMPLOYEE will not directly or indirectly, own,\nmanage, operate, join, control, or participate in the ownership, management, operation or control of, or be employed by\nor connected in any manner with, any business engaged anywhere in the world in the athletic footwear business, athletic\napparel business, or any other business which directly competes with NIKE or any of its subsidiaries or affiliated\ncorporations. This provision is (a) subject to NIKE's option to waive, but only with the concurrence of the EMPLOYEE,\nall or any portion of the one (1) year time period of non-competition following termination more specifically provided\nfor in paragraph 2; and (b) subject to NIKE's option to specifically identify, at the time of termination, those businesses\nwhich EMPLOYEE may not be employed by or connected with for the period of non-competition. NIKE agrees to act in\ngood faith in its exercise of the above-noted options. 2. ADDITIONAL CONSIDERATION. a . As additional\nconsideration for the covenant not to compete described in paragraph 1 above, it is agreed that: (i) If EMPLOYEE\nvoluntarily leaves the employ of NIKE at any time during the term hereof, NIKE shall pay EMPLOYEE an amount per\nmonth equal to one-twenty-fourth (1/24) of EMPLOYEE's then current "Annual NIKE Income" (defined herein to mean\nbase salary and bonuses received by EMPLOYEE during the twelve (12) month period immediately preceding\ntermination), or $20,833.34 per month, whichever is greater, for the one (1) year period of non- competition following\nvoluntary termination of employment, payable on the first day of each month, or (ii) If EMPLOYEE is involuntarily\nterminated by NIKE at any time during the term hereof, either with or without cause, NIKE shall pay EMPLOYEE an\namount per month equal to one-twelfth (1/12) of EMPLOYEE's then current Annual NIKE Income, or $41,666.67 per\nmonth, whichever is greater, for the one (1) year period of non-competition following involuntary termination of\nemployment, payable on the first day of each month. b. NIKE may waive all or any portion of the one (1) year period of\nnon-competition following termination, subject to the following provisions: (i) At any time during, or prior to the\ncommencement of, the one (1) year period, NIKE may tender to EMPLOYEE thirty (30) days written notice of its desire\nto waive all or the then remaining portion of the one (1) year period of non-competition. Within the thirty (30) day notice\nperiod, EMPLOYEE will have the option of accepting or rejecting NIKE's tender by advising NIKE in writing of\nEMPLOYEE's election to accept the waiver, in which event EMPLOYEE would be free to compete at the end of the\nthirty (30) day notice period and all payments to EMPLOYEE hereunder would cease, or to reject the waiver, in which\nevent EMPLOYEE would continue to be prohibited from competing for the remaining portion of the one (1) year period\nof non- competition and payments to EMPLOYEE would continue as herein provided. (ii) However, notwithstanding\nanything contained in subparagraph 2(b)(i) above, if EMPLOYEE is terminated by NIKE "for cause" (defined herein to\ninclude only continual and repeated neglect of duties and dishonesty) NIKE shall have the unqualified right to waive,\nwithout EMPLOYEE's consent, all or any portion of the one (1) year period of non-competition following termination,\nby giving EMPLOYEE written notice of such election not less than thirty (30) days prior to the effective date of the\nwaiver. In that event, NIKE shall not be obligated to pay EMPLOYEE hereunder for any months as to which the\ncovenant not to compete has been waived. 3. LESSER RESTRICTIONS . Should any of the terms of paragraphs 1 and 2\nabove be found unreasonable or invalid by any court of competent jurisdiction, the parties agree to accept as binding, in\nlieu thereof, the maximum terms enforceable by law. 4. EXTENSION OF TIME. The covenant not to compete described\nin paragraphs 1, 2 and 3 above shall be extended by a time period equal to any time consumed in enforcement of the\nobligations hereunder during which EMPLOYEE engaged in activities violating the covenant not to compete. 5. NON-\nDISCLOSURE AGREEMENT. During the period of employment by NIKE and forever thereafter, EMPLOYEE will\nhold in confidence all information of a confidential nature, including but not limited to the information described in\nRecital "B", (all of which information of a confidential nature shall hereinafter be referred to as "confidential\ninformation") and will not, any time, directly or indirectly, use any confidential information for any purpose outside the\nscope of EMPLOYEE's employment with NIKE or disclose any confidential information to any person or organization\nwithout the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE shall not ever copy,\ntransmit, reproduce, summarize, quote, publish or make any commercial or other use whatsoever of any confidential\ninformation without the prior written consent of NIKE. 6. RETURN OF CONFIDENTIAL INFORMATION. Upon\ntermination and upon written request by NIKE at any time, EMPLOYEE shall return to NIKE all documents, records,\nnotebooks and other similar repositories of or containing confidential information, including all copies thereof, then in\nEMPLOYEE's possession, whether prepared by EMPLOYEE or others, and deliver to NIKE any and all other\nconfidential information, in whatever form, that may be in EMPLOYEE's possession or under EMPLOYEE's control. 7.\nUNAUTHORIZED USE. During the period of employment with NIKE and thereafter, EMPLOYEE shall notify NIKE\nimmediately of the unauthorized possession, use or knowledge of any confidential information by any person employed\nor not employed by NIKE at the time of such possession, use or knowledge. EMPLOYEE shall promptly furnish details\nof such possession, use or knowledge to NIKE, will assist in preventing the reoccurrence of such possession, use or\nknowledge, and shall cooperate with NIKE in any litigation against third parties deemed necessary by NIKE to protect\nthe confidential information. EMPLOYEE's compliance with this paragraph shall not be construed in any way as a\nwaiver of any of NIKE's rights or remedies against EMPLOYEE arising out of or related to such unauthorized\npossession, use or knowledge. 8. INJUNCTIVE RELIEF. The remedy at law for any breach of this Covenant Not to\nCompete and Non-Disclosure Agreement will be inadequate. It is reasonable to require that EMPLOYEE not compete\nwith NIKE in order to protect NIKE from unfair use of the confidential information. NIKE shall be entitled to injunctive\nrelief in addition to any other remedy it may have. A breach of this Covenant Not to Compete and Non-Disclosure\nAgreement during the period of EMPLOYEE's employment in addition to any other rights or remedies NIKE may have.\n9. WAIVER, AMENDMENT, MODIFICATION OR CANCELLATION. No waiver, amendment, modification or\ncancellation of any term or condition of this Covenant Not to Compete and Non-Disclosure Agreement shall be effective\nunless executed in writing by the party charged therewith. No written waiver shall excuse the performance of any act\nother than the act or acts specifically referred to therein. 10. APPLICABLE LAW/JURISDICTION/VENUE. This\nCovenant Not to Compete and Non-Disclosure Agreement, and EMPLOYEE's employment hereunder, shall be\nconstrued according to the laws of the state of Oregon and EMPLOYEE hereby submits to the jurisdiction of the courts\nof the state of Oregon and waives application of any foreign law relating to this Agreement and EMPLOYEE's\nemployment by NIKE. Any suit or action of any kind relating to this Agreement or the subject matter hereof shall be\nbrought in a court located in Washington County, Oregon. EMPLOYEE NIKE, Inc. By: /s/ Mark G. Parker By: /s/ Philip\nH. Knight _______________________ _________________________ Name: Mark G. Parker Name: Philip H. Knight	EX-10.9 4 ex10_9.txt NON COMPETE AGREEMENT COVENANT NOT TO COMPETE AND NON-DISCLOSURE\nAGREEMENT PARTIES: Mark G. Parker (EMPLOYEE) NIKE, Inc., an Oregon corporation, and its divisions,\nsubsidiaries and affiliates (NIKE) DATE: October 6, 1994 RECITALS: A. This Covenant Not to Compete is executed\nupon the EMPLOYEE's assumption of additional responsibilities for worldwide marketing and development activities of\nNIKE. B. Over the course of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or\nin a position to generate confidential information including but not limited to confidential techniques, methods, styles,\ndesigns and design concepts, developments, customer lists, vendor lists, contract factory lists, pricing information,\nmanufacturing plans, business plans, marketing plans, sales information, methods of operation, knowledge and data\nrelating to processes, products, machines, compounds and compositions, formulae, lasts and molds. It is anticipated that\nEMPLOYEE will continue to be exposed to confidential information, will be exposed to more confidential information\nand to confidential information of greater sensitivity as EMPLOYEE advances in the company. This confidential\ninformation is information peculiar to NIKE's business. The nature of NIKE's business is highly competitive and\ndisclosure of any confidential information would result in severe damage to NIKE and be difficult to measure. C. NIKE\nmakes use of the confidential information described in paragraph B above throughout the world. This confidential\ninformation of NIKE can be used to NIKE's detriment anywhere in the world. D. The provisions of this Covenant Not to\nCompete and Non-Disclosure Agreement are a condition of EMPLOYEE's employment advancement with NIKE. E.\nThe provisions of this Covenant Not to Compete and Non-Disclosure Agreement are reasonable. AGREEMENTS: 1.\nCOVENANT NOT TO COMPETE. During the period of time EMPLOYEE is employed by NIKE, under the terms of\nany employment contract or otherwise, and for one (1) year thereafter, EMPLOYEE will not directly or indirectly, own,\nmanage, operate, join, control, or participate in the ownership, management, operation or control of, or be employed by\nor connected in any manner with, any business engaged anywhere in the world in the athletic footwear business, athletic\napparel business, or any other business which directly competes with NIKE or any of its subsidiaries or affiliated\ncorporations. This provision is (a) subject to NIKE's option to waive, but only with the concurrence of the EMPLOYEE,\nall or any portion of the one (1) year time period of non-competition following termination more specifically provided\nfor in paragraph 2; and (b) subject to NIKE's option to specifically identify, at the time of termination, those businesses\nwhich EMPLOYEE may not be employed by or connected with for the period of non-competition. NIKE agrees to act in\ngood faith in its exercise of the above-noted options. 2. ADDITIONAL CONSIDERATION. a. As additional\nconsideration for the covenant not to compete described in paragraph 1 above, it is agreed that: (i) If EMPLOYEE\nvoluntarily leaves the employ of NIKE at any time during the term hereof, NIKE shall pay EMPLOYEE an amount per\nmonth equal to one-twenty-fourth (1/24) of EMPLOYEE's then current "Annual NIKE Income" (defined herein to mean\nbase salary and bonuses received by EMPLOYEE during the twelve (12) month period immediately preceding\ntermination), or $20,833.34 per month, whichever is greater, for the one (1) year period of non- competition following\nvoluntary termination of employment, payable on the first day of each month, or (ii) If EMPLOYEE is involuntarily\nterminated by NIKE at any time during the term hereof, either with or without cause, NIKE shall pay EMPLOYEE an\namount per month equal to one-twelfth (1/12) of EMPLOYEE's then current Annual NIKE Income, or $41,666.67 per\nmonth, whichever is greater, for the one (1) year period of non-competition following involuntary termination of\nemployment, payable on the first day of each month. b. NIKE may waive all or any portion of the one (1) year period of\nnon-competition following termination, subject to the following provisions: (i) At any time during, or prior to the\ncommencement of, the one (1) year period, NIKE may tender to EMPLOYEE thirty (30) days written notice of its desire\nto waive all or the then remaining portion of the one (1) year period of non-competition. Within the thirty (30) day notice\nperiod, EMPLOYEE will have the option of accepting or rejecting NIKE's tender by advising NIKE in writing of\nEMPLOYEE's election to accept the waiver, in which event EMPLOYEE would be free to compete at the end of the\nthirty (30) day notice period and all payments to EMPLOYEE hereunder would cease, or to reject the waiver, in which\nevent EMPLOYEE would continue to be prohibited from competing for the remaining portion of the one (1) year period\nof non- competition and payments to EMPLOYEE would continue as herein provided. (ii) However, notwithstanding\nanything contained in subparagraph 2(b)(i) above, if EMPLOYEE is terminated by NIKE "for cause" (defined herein to\ninclude only continual and repeated neglect of duties and dishonesty) NIKE shall have the unqualified right to waive,\nwithout EMPLOYEE's consent, all or any portion of the one (1) year period of non-competition following termination,\nby giving EMPLOYEE written notice of such election not less than thirty (30) days prior to the effective date of the\nwaiver. In that event, NIKE shall not be obligated to pay EMPLOYEE hereunder for any months as to which the\ncovenant not to compete has been waived. 3. LESSER RESTRICTIONS. Should any of the terms of paragraphs 1 and 2\nabove be found unreasonable or invalid by any court of competent jurisdiction, the parties agree to accept as binding, in\nlieu thereof, the maximum terms enforceable by law. 4. EXTENSION OF TIME. The covenant not to compete described\nin paragraphs 1, 2 and 3 above shall be extended by a time period equal to any time consumed in enforcement of the\nobligations hereunder during which EMPLOYEE engaged in activities violating the covenant not to compete. 5. NON-\nDISCLOSURE AGREEMENT. During the period of employment by NIKE and forever thereafter, EMPLOYEE will\nhold in confidence all information of a confidential nature, including but not limited to the information described in\nRecital "B", (all of which information of a confidential nature shall hereinafter be referred to as "confidential\ninformation") and will not, any time, directly or indirectly, use any confidential information for any purpose outside the\nscope of EMPLOYEE's employment with NIKE or disclose any confidential information to any person or organization\nwithout the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE shall not ever copy,\ntransmit, reproduce, summarize, quote, publish or make any commercial or other use whatsoever of any confidential\ninformation without the prior written consent of NIKE. 6. RETURN OF CONFIDENTIAL INFORMATION. Upon\ntermination and upon written request by NIKE at any time, EMPLOYEE shall return to NIKE all documents, records,\nnotebooks and other similar repositories of or containing confidential information, including all copies thereof, then in\nEMPLOYEE's possession, whether prepared by EMPLOYEE or others, and deliver to NIKE any and all other\nconfidential information, in whatever form, that may be in EMPLOYEE's possession or under EMPLOYEE's control. 7.\nUNAUTHORIZED USE. During the period of employment with NIKE and thereafter, EMPLOYEE shall notify NIKE\nimmediately of the unauthorized possession, use or knowledge of any confidential information by any person employed\nor not employed by NIKE at the time of such possession, use or knowledge. EMPLOYEE shall promptly furnish details\nof such possession, use or knowledge to NIKE, will assist in preventing the reoccurrence of such possession, use or\nknowledge, and shall cooperate with NIKE in any litigation against third parties deemed necessary by NIKE to protect\nthe confidential information. EMPLOYEE's compliance with this paragraph shall not be construed in any way as a\nwaiver of any of NIKE's rights or remedies against EMPLOYEE arising out of or related to such unauthorized\npossession, use or knowledge. 8. INJUNCTIVE RELIEF. The remedy at law for any breach of this Covenant Not to\nCompete and Non-Disclosure Agreement will be inadequate. It is reasonable to require that EMPLOYEE not compete\nwith NIKE in order to protect NIKE from unfair use of the confidential information. NIKE shall be entitled to injunctive\nrelief in addition to any other remedy it may have. A breach of this Covenant Not to Compete and Non-Disclosure\nAgreement during the period of EMPLOYEE's employment in addition to any other rights or remedies NIKE may have.\n9. WAIVER, AMENDMENT, MODIFICATION OR CANCELLATION. No waiver, amendment, modification or\ncancellation of any term or condition of this Covenant Not to Compete and Non-Disclosure Agreement shall be effective\nunless executed in writing by the party charged therewith. No written waiver shall excuse the performance of any act\nother than the act or acts specifically referred to therein. 10. APPLICABLE LAW/JURISDICTION/VENUE. This\nCovenant Not to Compete and Non-Disclosure Agreement, and EMPLOYEE's employment hereunder, shall be\nconstrued according to the laws of the state of Oregon and EMPLOYEE hereby submits to the jurisdiction of the courts\nof the state of Oregon and waives application of any foreign law relating to this Agreement and EMPLOYEE's\nemployment by NIKE. Any suit or action of any kind relating to this Agreement or the subject matter hereof shall be\nbrought in a court located in Washington County, Oregon. EMPLOYEE NIKE, Inc. By: /s/ Mark G. Parker By: /s/ Philip\nH. Knight Name: Mark G. Parker Name: Philip H. Knight	EX-10.9 4 x10 9.txt NON COMPETE AGREEMENT COVENANT NOT TO COMPETE AND NON-DISCLOSURE\nAGREEMENT PARTIES: Mark G. Parker (EMPLOYEE) NIKE, Inc., an Oregon corporation, and its divisions,\nsubsidiaries and affiliates (NIKE) DATE: October 6, 1994 RECITALS: A. This Covenant Not to Compete is executed\nupon the EMPLOYEE's assumption of additional responsibilities for worldwide marketing and development activities of\nNIKE. B. Over the course of EMPLOYEE'S employment with NIKE, EMPLOYEE will be or has been exposed to and/or\nin a position to generate confidential information including but not limited to confidential techniques, methods, styles,\ndesigns and design concepts, developments, customer lists, vendor lists, contract factory lists, pricing information,\nmanufacturing plans, business plans, marketing plans, sales information, methods of operation, knowledge and data\nrelating to processes, products, machines, compounds and compositions, formulae, lasts and molds. It is anticipated that\nEMPLOYEE will continue to be exposed to confidential information, will be exposed to more confidential information\nand to confidential information of greater sensitivity as EMPLOYEE advances in the company. This confidential\ninformation is information peculiar to NIKE's business. The nature of NIKE's business is highly competitive and\ndisclosure of any confidential information would result in severe damage to NIKE and be difficult to measure.\nC.\nNIKE\nmakes use of the confidential information described in paragraph B above throughout the world. This confidential\ninformation of NIKE can be used to NIKE's detriment anywhere in the world. D. The provisions of this Covenant Not\nto\nCompete and Non-Disclosure Agreement are a condition of EMPLOYEE'S employmen advancement with NIKE. E.\nThe provisions of this Covenant Not to Compete and Non-Disclosure Agreement are reasonable. AGREEMENTS: 1.\nCOVENANT NOT TO COMPETE. During the period of time EMPLOYEE is employed by NIKE, under\nthe\nterms\nof\nany employment contract or otherwise, and for one (1) year thereafter, EMPLOYEE will not directly or indirectly, own,\nmanage, operate, join, control, or participate in the ownership, management, operation or control of, or be employed by\nor connected in any manner with, any business engaged anywhere in the world in the athletic footwear business, athletic\napparel business, or any other business which directly competes with NIKE or any of its subsidiaries or affiliated\ncorporations. This provision is (a) subject to NIKE's option to waive, but only with the concurrence of the EMPLOYEE,\nall or any portion of the one (1) year time period of non-competition following termination more specifically provided\nfor in paragraph 2; and (b) subject to NIKE's option to specifically identify, at the time of termination, those businesses\nwhich EMPLOYEE may not be employed by or connected with for the period of non-competition. NIKE agrees to act in\ngood faith in its exercise of the above-noted options. 2. ADDITIONAL CONSIDERATION. a. As additional\nconsideration for the covenant not to compete described in paragraph 1 above, it is agreed that: (i) If EMPLOYEE\nvoluntarily leaves the employ of NIKE at any time during the term hereof, NIKE shall pay EMPLOYEE an amount per\nmonth equal to one-twenty-fourth (1/24) of EMPLOYEE'S then current "Annual NIKE Income" (defined herein to mean\nbase salary and bonuses received by EMPLOYEE during the twelve (12) month period immediately preceding\ntermination), or $20,833.34 per month, whichever is greater, for the one (1) year period of non- competition following\nvoluntary termination of employment, payable on the first day of each month, or (ii) If EMPLOYEE is involuntarily\nterminated by NIKE at any time during the term hereof, either with or without cause, NIKE shall pay EMPLOYEE an\namount per month equal to one-twelfth (1/12) of EMPLOYEE'S then current Annual NIKE Income, or $41,666.67 per\nmonth, whichever is greater, for the one (1) year period of non-competition following involuntary termination of\nemployment, payable on the first day of each month. b. NIKE may waive all or any portion of the one (1) year period of\nnon-competition following termination, subject to the following provisions: (i) At any time during, or prior to the\ncommencement of, the one (1) year period, NIKE may tender to EMPLOYEE thirty (30) days written notice of its desire\nto waive all or the then remaining portion of the one (1) year period of non-competition. Within the thirty (30) day notice\nperiod, EMPLOYEE will have the option of accepting or rejecting NIKE's tender by advising NIKE in writing of\nEMPLOYEE'S election to accept the waiver, in which event EMPLOYEE would be free to compete at the end of the\nthirty (30) day notice period and all payments to EMPLOYEE hereunder would cease, or to reject the waiver, in which\nevent EMPLOYEE would continue to be prohibited from competing for the remaining portion of the one (1) year period\nof competition and payments to EMPLOYEE would continue as herein provided. (ii) However, notwithstanding\nanything contained in subparagraph 2(b)(i) above, if EMPLOYEE is terminated by NIKE "for cause" (defined herein to\ninclude only continual and repeated neglect of duties and dishonesty) NIKE shall have the unqualified right to waive,\nwithout EMPLOYEE'S consent, all or any portion of the one (1) year period of non-competition following termination,\nby\ngiving\nEMPLOYEE written notice of such election not less than thirty (30) days prior to the effective date of the\nwaiver. In that event, NIKE shall not be obligated to pay EMPLOYEE hereunder for any months as to which the\ncovenant not to compete has been waived. 3. LESSER RESTRICTIONS Should any of the terms of paragraphs 1 and 2\nabove be found unreasonable or invalid by any court of competent jurisdiction, the parties agree to accept as binding, in\nlieu thereof, the maximum terms enforceable by law. 4. EXTENSION OF TIME. The covenant not to compete described\nin paragraphs 1, 2 and 3 above shall be extended by a time period equal to any time consumed in enforcement of the\nobligations hereunder during which EMPLOYEE engaged in activities violating the covenant not to compete. 5. NON-\nDISCLOSURE AGREEMENT. During the period of employment by NIKE and forever thereafter, EMPLOYEE will\nhold in confidence all information of a confidential nature, including but not limited to the information described in\nRecital "B", (all of which information of a confidential nature shall hereinafter be referred to as "confidential\ninformation") and will not, any time, directly or indirectly, use any confidential information for any purpose outside\nthe\nscope of EMPLOYEE's employment with NIKE or disclose any confidential information to any person or organization\nwithout the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE shall not ever copy,\ntransmit, reproduce, summarize, quote, publish or make any commercial or other use whatsoever of any confidential\ninformation without the prior written consent of NIKE. 6. RETURN OF CONFIDENTIAL INFORMATION Upon\ntermination\nand\nupon\nwritten\nrequest\nby\nNIKE\nat\nany\ntime,\nEMPLOYEE\nshall\nreturn\nto\nNIKE\nall\ndocuments,\nrecords,\nnotebooks and other similar repositories of or containing confidential information, including all copies thereof, then in\nEMPLOYEE'S possession, whether prepared by EMPLOYEE or others, and deliver to NIKE any and all other\nconfidential information, in whatever form, that may be in EMPLOYEE's possession or under EMPLOYEE's control. 7.\nUNAUTHORIZED USE. During the period of employment with NIKE and thereafter, EMPLOYEE shall notify NIKE\nimmediately of the unauthorized possession, use or knowledge of any confidential information by any person employed\nor not employed by NIKE at the time of such possession, use or knowledge. EMPLOYEE shall promptly furnish details\nof such possession, use or knowledge to NIKE, will assist in preventing the reoccurrence of such possession, use or\nknowledge, and shall cooperate with NIKE in any litigation against third parties deemed necessary by NIKE to protect\nthe confidential information. EMPLOYEE'S compliance with this paragraph shall not be construed in any way as a\nwaiver of any of NIKE's rights or remedies against EMPLOYEE arising out of or related to such unauthorized\npossession, use or knowledge. 8. INJUNCTIVE RELIEF. The remedy at law for any breach of this Covenant Not to\nCompete and Non-Disclosure Agreement will be inadequate. It is reasonable to require that EMPLOYEE not compete\nwith\nNIKE\nin\norder\nto\nprotect\nNIKE\nfrom\nunfair\nuse\nof\nthe\nconfidential\ninformation.\nNIKE\nshall\nbe\nentitled\nto\ninjunctive\nrelief in addition to any other remedy it may have. A breach of this Covenant Not to Compete and Non-Disclosure\nAgreement during the period of EMPLOYEE'S employment in addition to any other rights or remedies NIKE may have.\n9. WAIVER, AMENDMENT, MODIFICATION OR CANCELLATION. No waiver, amendment, modification or\ncancellation of any term or condition of this Covenant Not to Compete and Non-Disclosure Agreement shall be effective\nunless executed in writing by the party charged therewith. No written waiver shall excuse the performance of any act\nother than the act or acts specifically referred to therein. 10. APPLICABLE LAWIJURISDICTION/VENUE. This\nCovenant Not to Compete and Non-Disclosure Agreement, and EMPLOYEE's employment hereunder, shall be\nconstrued according to the laws of the state of Oregon and EMPLOYEE hereby submits to the jurisdiction of the courts\nof the state of Oregon and waives application of any foreign law relating to this Agreement and EMPLOYEE's\nemployment by NIKE. Any suit or action of any kind relating to this Agreement or the subject matter hereof shall be\nbrought in a court located in Washington County, Oregon. EMPLOYEE NIKE, Inc. By: /s/ Mark G. Parker By: /s/ Philip\nH. Knight Name: Mark G. Parker Name: Philip H. Knight	EX-10.9 4 ex10_9.txt NON COMPETE AGREEMENT COVENANT NOT TO COMPETE AND NON-DISCLOSURE\nAGREEMENT PARTIES: Mark G. Parker (EMPLOYEE) NIKE, Inc., an Oregon corporation, and its divisions,\nsubsidiaries and affiliates (NIKE) DATE: October 6, 1994 RECITALS: A. This Covenant Not to Compete is executed\nupon the EMPLOYEE's assumption of additional responsibilities for worldwide marketing and development activities of\nNIKE. B. Over the course of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or\nin a position to generate confidential information including but not limited to confidential techniques, methods, styles,\ndesigns and design concepts, developments, customer lists, vendor lists, contract factory lists, pricing information,\nmanufacturing plans, business plans, marketing plans, sales information, methods of operation, knowledge and data\nrelating to processes, products, machines, compounds and compositions, formulae, lasts and molds. It is anticipated that\nEMPLOYEE will continue to be exposed to confidential information, will be exposed to more confidential information\nand to confidential information of greater sensitivity as EMPLOYEE advances in the company. This confidential\ninformation is information peculiar to NIKE's business. The nature of NIKE's business is highly competitive and\ndisclosure of any confidential information would result in severe damage to NIKE and be difficult to measure. C . NIKE\nmakes use of the confidential information described in paragraph B above throughout the world. This confidential\ninformation of NIKE can be used to NIKE's detriment anywhere in the world. D. The provisions of this Covenant Not to\nCompete and Non-Disclosure Agreement are a condition of EMPLOYEE's employment advancement with NIKE. E.\nThe provisions of this Covenant Not to Compete and Non-Disclosure Agreement are reasonable. AGREEMENTS: 1.\nCOVENANT NOT TO COMPETE. During the period of time EMPLOYEE is employed by NIKE, under the terms of\nany employment contract or otherwise, and for one (1) year thereafter, EMPLOYEE will not directly or indirectly, own,\nmanage, operate, join, control, or participate in the ownership, management, operation or control of, or be employed by\nor connected in any manner with, any business engaged anywhere in the world in the athletic footwear business, athletic\napparel business, or any other business which directly competes with NIKE or any of its subsidiaries or affiliated\ncorporations. This provision is (a) subject to NIKE's option to waive, but only with the concurrence of the EMPLOYEE,\nall or any portion of the one (1) year time period of non-competition following termination more specifically provided\nfor in paragraph 2; and (b) subject to NIKE's option to specifically identify, at the time of termination, those businesses\nwhich EMPLOYEE may not be employed by or connected with for the period of non-competition. NIKE agrees to act in\ngood faith in its exercise of the above-noted options. 2. ADDITIONAL CONSIDERATION. a . As additional\nconsideration for the covenant not to compete described in paragraph 1 above, it is agreed that: (i) If EMPLOYEE\nvoluntarily leaves the employ of NIKE at any time during the term hereof, NIKE shall pay EMPLOYEE an amount per\nmonth equal to one-twenty-fourth (1/24) of EMPLOYEE's then current "Annual NIKE Income" (defined herein to mean\nbase salary and bonuses received by EMPLOYEE during the twelve (12) month period immediately preceding\ntermination), or $20,833.34 per month, whichever is greater, for the one (1) year period of non- competition following\nvoluntary termination of employment, payable on the first day of each month, or (ii) If EMPLOYEE is involuntarily\nterminated by NIKE at any time during the term hereof, either with or without cause, NIKE shall pay EMPLOYEE an\namount per month equal to one-twelfth (1/12) of EMPLOYEE's then current Annual NIKE Income, or $41,666.67 per\nmonth, whichever is greater, for the one (1) year period of non-competition following involuntary termination of\nemployment, payable on the first day of each month. b. NIKE may waive all or any portion of the one (1) year period of\nnon-competition following termination, subject to the following provisions: (i) At any time during, or prior to the\ncommencement of, the one (1) year period, NIKE may tender to EMPLOYEE thirty (30) days written notice of its desire\nto waive all or the then remaining portion of the one (1) year period of non-competition. Within the thirty (30) day notice\nperiod, EMPLOYEE will have the option of accepting or rejecting NIKE's tender by advising NIKE in writing of\nEMPLOYEE's election to accept the waiver, in which event EMPLOYEE would be free to compete at the end of the\nthirty (30) day notice period and all payments to EMPLOYEE hereunder would cease, or to reject the waiver, in which\nevent EMPLOYEE would continue to be prohibited from competing for the remaining portion of the one (1) year period\nof non- competition and payments to EMPLOYEE would continue as herein provided. (ii) However, notwithstanding\nanything contained in subparagraph 2(b)(i) above, if EMPLOYEE is terminated by NIKE "for cause" (defined herein to\ninclude only continual and repeated neglect of duties and dishonesty) NIKE shall have the unqualified right to waive,\nwithout EMPLOYEE's consent, all or any portion of the one (1) year period of non-competition following termination,\nby giving EMPLOYEE written notice of such election not less than thirty (30) days prior to the effective date of the\nwaiver. In that event, NIKE shall not be obligated to pay EMPLOYEE hereunder for any months as to which the\ncovenant not to compete has been waived. 3. LESSER RESTRICTIONS . Should any of the terms of paragraphs 1 and 2\nabove be found unreasonable or invalid by any court of competent jurisdiction, the parties agree to accept as binding, in\nlieu thereof, the maximum terms enforceable by law. 4. EXTENSION OF TIME. The covenant not to compete described\nin paragraphs 1, 2 and 3 above shall be extended by a time period equal to any time consumed in enforcement of the\nobligations hereunder during which EMPLOYEE engaged in activities violating the covenant not to compete. 5. NON-\nDISCLOSURE AGREEMENT. During the period of employment by NIKE and forever thereafter, EMPLOYEE will\nhold in confidence all information of a confidential nature, including but not limited to the information described in\nRecital "B", (all of which information of a confidential nature shall hereinafter be referred to as "confidential\ninformation") and will not, any time, directly or indirectly, use any confidential information for any purpose outside the\nscope of EMPLOYEE's employment with NIKE or disclose any confidential information to any person or organization\nwithout the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE shall not ever copy,\ntransmit, reproduce, summarize, quote, publish or make any commercial or other use whatsoever of any confidential\ninformation without the prior written consent of NIKE. 6. RETURN OF CONFIDENTIAL INFORMATION. Upon\ntermination and upon written request by NIKE at any time, EMPLOYEE shall return to NIKE all documents, records,\nnotebooks and other similar repositories of or containing confidential information, including all copies thereof, then in\nEMPLOYEE's possession, whether prepared by EMPLOYEE or others, and deliver to NIKE any and all other\nconfidential information, in whatever form, that may be in EMPLOYEE's possession or under EMPLOYEE's control. 7.\nUNAUTHORIZED USE. During the period of employment with NIKE and thereafter, EMPLOYEE shall notify NIKE\nimmediately of the unauthorized possession, use or knowledge of any confidential information by any person employed\nor not employed by NIKE at the time of such possession, use or knowledge. EMPLOYEE shall promptly furnish details\nof such possession, use or knowledge to NIKE, will assist in preventing the reoccurrence of such possession, use or\nknowledge, and shall cooperate with NIKE in any litigation against third parties deemed necessary by NIKE to protect\nthe confidential information. EMPLOYEE's compliance with this paragraph shall not be construed in any way as a\nwaiver of any of NIKE's rights or remedies against EMPLOYEE arising out of or related to such unauthorized\npossession, use or knowledge. 8. INJUNCTIVE RELIEF. The remedy at law for any breach of this Covenant Not to\nCompete and Non-Disclosure Agreement will be inadequate. It is reasonable to require that EMPLOYEE not compete\nwith NIKE in order to protect NIKE from unfair use of the confidential information. NIKE shall be entitled to injunctive\nrelief in addition to any other remedy it may have. A breach of this Covenant Not to Compete and Non-Disclosure\nAgreement during the period of EMPLOYEE's employment in addition to any other rights or remedies NIKE may have.\n9. WAIVER, AMENDMENT, MODIFICATION OR CANCELLATION. No waiver, amendment, modification or\ncancellation of any term or condition of this Covenant Not to Compete and Non-Disclosure Agreement shall be effective\nunless executed in writing by the party charged therewith. No written waiver shall excuse the performance of any act\nother than the act or acts specifically referred to therein. 10. APPLICABLE LAW/JURISDICTION/VENUE. This\nCovenant Not to Compete and Non-Disclosure Agreement, and EMPLOYEE's employment hereunder, shall be\nconstrued according to the laws of the state of Oregon and EMPLOYEE hereby submits to the jurisdiction of the courts\nof the state of Oregon and waives application of any foreign law relating to this Agreement and EMPLOYEE's\nemployment by NIKE. Any suit or action of any kind relating to this Agreement or the subject matter hereof shall be\nbrought in a court located in Washington County, Oregon. EMPLOYEE NIKE, Inc. By: /s/ Mark G. Parker By: /s/ Philip\nH. Knight _______________________ _________________________ Name: Mark G. Parker Name: Philip H. Knight
+6750684aa13cb781eddb8f6fd9238e07.pdf	effective_date jurisdiction party term	EX-10.42 4 dex1042.htm EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE\nAGREEMENT\nEXHIBIT 10.42\nEMPLOYEE\nCONFIDENTIALITY, INVENTION ASSIGNMENT\nAND NON-COMPETE AGREEMENT\nTHIS EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE AGREEMENT (“Agreement”) is made as\nof the date set forth on the signature page below between Inspire Pharmaceuticals, Inc. (“Inspire”), and the person whose name is set forth on the\nsignature page below as Employee (“Employee”).\nIn consideration of Employee’s employment or continued employment by Inspire, with the intention that this Agreement shall apply to the\nentire period of Employee’s employment with Inspire (including the period prior to the date of this Agreement), Employee hereby agrees as follows:\n1. CONFIDENTIAL INFORMATION DEFINED. “Confidential Information” means trade secrets, proprietary information and materials, and confidential\nknowledge and information which includes, but is not limited to, matters of a technical nature (such as discoveries, ideas, concepts, designs,\ndrawings, specifications, techniques, models, diagrams, test data, scientific methods and know-how, and materials such as reagents, substances,\nchemical compounds, subcellular constituents, cell or cell lines, organisms and progeny, and mutants, derivatives or replications derived from or\nrelating to any of the foregoing materials), and matters of a business nature (such as the identity of customers and prospective customers, the nature\nof work being done for or discussed with customers or prospective customers, suppliers, marketing techniques and materials, marketing and\ndevelopment plans, pricing or pricing policies, financial information, plans for further development, and any other information of a similar nature not\navailable to the public).\n“Confidential Information” shall not include information that: (a) was in Employee’s possession or in the public domain before receipt from\nthe Company, as evidenced by the then existing publication or other public dissemination of such information in written or other documentary form;\n(b) becomes available to the public through no fault of Employee; (c) is received in good faith by Employee from a third party who is not subject to\nan obligation of confidentiality to the Company or any other party; or (d) is required by a judicial or administrative authority or court having\ncompetent jurisdiction to be disclosed by Employee, provided that Employee shall promptly notify the Company and allow the Company a\nreasonable time to oppose or limit such order.\n2. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF INSPIRE. Employee acknowledges that, during the period of Employee’s employment\nwith Inspire, Employee has had or will have access to Confidential Information of Inspire. Therefore, Employee agrees that both during and after the\nperiod of Employee’s employment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal,\nreport, publish, disclose or transfer any Confidential Information of Inspire to any person or entity, or (b) use any Confidential Information of Inspire\nfor any purpose or for the benefit of any person or entity, except as may be necessary in the performance of Employee’s work for Inspire.\n3. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF OTHERS. Employee acknowledges that, during the period of Employee’s employment\nwith Inspire, Employee may have had or will\n-1-\nhave access to Confidential Information of third parties who have given Inspire the right to use such Confidential Information, subject to a non-\ndisclosure agreement between Inspire and such third party. Therefore, Employee agrees that both during and after the period of Employee’s\nemployment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal, report, publish, disclose\nor transfer any Confidential Information of such third parties to any person or entity, or (b) use any Confidential Information of such third parties for\nany purpose or for the benefit of any person or entity, except as may be necessary in the performance of Employee’s work for Inspire.\n4. PROPERTY OF INSPIRE. Employee acknowledges and agrees that all Confidential Information of Inspire and all reports, drawings, blueprints,\nmaterials, data, code, notes and other documents and records, whether printed, typed, handwritten, videotaped, transmitted or transcribed on data\nfiles or on any other type of media, and whether or not labeled or identified as confidential or proprietary, made or compiled by Employee, or made\navailable to Employee, during the period of Employee employment with Inspire (including the period prior to the date of this Agreement) concerning\nInspire’s Confidential Information are and shall remain Inspire’s property and shall be delivered to Inspire within five (5) business days after the\ntermination of such employment with Inspire or at any earlier time on request of Inspire. Employee shall not retain copies of such Confidential\nInformation, documents and records.\n5. PROPRIETARY NOTICES. Employee shall not, and shall not permit any other person to, remove any proprietary or other legends or restrictive\nnotices contained in or included in any Confidential Information.\n6. INVENTIONS.\n(a) Employee shall promptly, from time to time, fully inform and disclose to Inspire in writing all inventions, copyrightable material, designs,\nimprovements and discoveries of any kind which Employee now has made, conceived or developed (including prior to the date of this Agreement),\nor which Employee may later make, conceive or develop, during the period of Employee’s employment with Inspire, which pertain to or relate to\nInspire’s business or any of the work or businesses carried on by Inspire (“Inventions”). This covenant applies to all such Inventions, whether or not\nthey are eligible for patent, copyright, trademark, trade secret or other legal protection; and whether or not they are conceived and/or developed by\nEmployee alone or with others; and whether or not they are conceived and/or developed during regular working hours; and whether or not they are\nconceived and/or developed at Inspire’s facility or not.\n(b) Inventions shall not include any inventions made, conceived or developed by Employee prior to Employee’s employment with Inspire, a\ncomplete list of which is set forth on Schedule A attached.\n(c) All Inventions shall be the sole and exclusive property of Inspire, and shall be deemed part of the Confidential Information of Inspire for\npurposes of this Agreement, whether or not fixed in a tangible medium of expression. Employee hereby assigns all Employee’s rights in all\nInventions and in all related patents, copyrights and trademarks, trade secrets and other proprietary rights therein to Inspire. Without limiting the\nforegoing, Employee agrees that any copyrightable material shall be deemed to be “works made for hire” and that Inspire shall be deemed the author\nof such works under the United States Copyright Act, provided that in the event and to the extent such works are determined not to constitute “works\nmade for hire”, Employee hereby irrevocably assigns and transfers to Inspire all right, title and interest in such works.\n-2-\n(d) Employee shall assist and cooperate with Inspire, both during and after the period of Employee’s employment with Inspire, at Inspire’s sole\nexpense, to allow Inspire to obtain, maintain and enforce patent, copyright, trademark, trade secret and other legal protection for the Inventions.\nEmployee shall sign such documents, and do such things necessary, to obtain such protection and to vest Inspire with full and exclusive title in all\nInventions against infringement by others. Employee hereby appoints the Secretary of Inspire as Employee’s attorney-in-fact to execute documents\non Employee’s behalf for this purpose.\n(e) Employee shall not be entitled to any additional compensation for any and all Inventions made during the period of Employee’s\nemployment with Inspire.\n7. COVENANT NOT TO COMPETE. If Employee is, at any time during Employee’s period of employment with Inspire, employed in the discovery or\ndevelopment areas of the Company in a non-clerical position, or as a director level or higher level senior manager of the Company, then this Section\n7 shall apply. Employee and Inspire agree that the services rendered by the Employee are unique and irreplaceable, and that competitive use and\nknowledge of any Confidential Information would substantially and irreparably injure Inspire’s business, prospects and good will. Employee and\nInspire also agree that Inspire’s business is global in nature due to the type of products and/or services being provided. Therefore, Employee agrees\nthat during the period of Employee’s employment with Inspire and for a period of one (1) year thereafter, Employee shall not, directly or indirectly,\nthrough any other person, firm, corporation or other entity (whether as an officer, director, employee, partner, consultant, holder of equity or debt\ninvestment, lender or in any other manner or capacity):\n(a) develop, sell, market, offer to sell products and/or services anywhere in the world that have the same or similar technological approach or\ntechnology platform (e.g., same receptors (such as P2Y), same mechanism of action (such as mucociliary clearance)) as those being developed,\noffered or sold by Inspire on the date of the termination of Employee’s employment with Inspire for any reason;\n(b) solicit, induce, encourage or attempt to induce or encourage any employee or consultant of Inspire to terminate his or her employment or\nconsulting relationship with Inspire, or to breach any other obligation to Inspire;\n(c) solicit, interfere with, disrupt, alter or attempt to disrupt or alter the relationship, contractual or otherwise, between Inspire and any\nconsultant, contractor, customer, potential customer, or supplier of Inspire; or\n(d) engage in or participate in any business in the same industry as Inspire which is conducted under any name that shall be the same as or\nsimilar to the name of Inspire or any trade name used by Inspire.\nEmployee acknowledges that the foregoing geographic, activity and time limitations contained in this Section 7 are reasonable and properly\nrequired for the adequate protection of Inspire’s business. In the event that any such geographic, activity or time limitation is deemed to be\nunreasonable by a court, Employee shall submit to the reduction of either said activity or time limitation to such activity or period as the court shall\ndeem reasonable. In the event that Employee is in violation of the aforementioned restrictive covenants, then the time limitation thereof shall be\nextended for a period of time equal to the pendency of such proceedings, including appeals.\n-3-\n8. REPRESENTATIONS. Employee represents that Employee has the right to enter into this Agreement, and that Employee’s performance of all the\nterms of this Agreement and his duties as an employee of Inspire will not breach any confidential information agreement, non-competition\nagreement or other agreement with any former employer of his services, either as an employee, consultant, contractor or independent contractor, or\nwith any other party. Employee represents that Employee will not disclose to Inspire any trade secrets or confidential or proprietary information of\nany third party that are not generally available to the public.\n9. DISCLOSURE OF THIS AGREEMENT. Employee hereby authorizes Inspire to notify others, including but not limited to customers of Inspire and any\nof Employee’s future employers, of the terms of this Agreement and Employee’s responsibilities under this Agreement.\n10. SPECIFIC PERFORMANCE. Employee acknowledges that money damages alone would not adequately compensate Inspire in the event of a breach\nor threatened breach by Employee of this Agreement, and that, in addition to all other remedies available to Inspire at law or in equity, Inspire shall\nbe entitled to injunctive relief for the enforcement of its rights and to an accounting of profits made during the period of such breach.\n11. NO RIGHTS GRANTED. Employee understands that nothing in this Agreement shall be deemed to constitute, by implication or otherwise, the\ngrant by Inspire to the employee of any license or other right under any patent, patent application or other intellectual property right or interest\nbelonging to Inspire.\n12. SEVERABILITY.\n(a) Each of the covenants provided in this Agreement are separate and independent covenants. If any provision of this Agreement shall be\ndetermined to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and any such invalid or unenforceable\nprovision shall be reformed so as to be valid and enforceable to the fullest extent permitted by law.\n(b) It is not a defense to the enforcement of any provision of this Agreement that Inspire has breached or failed to perform any obligation or\ncovenant hereunder or under any other agreement or understanding between Employee and Inspire.\n13. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without regard\nto conflict of law rules. All suits and claims shall be made only in state or federal courts located in North Carolina.\n14. SUPERSEDES OTHER AGREEMENTS. This Agreement contains the entire agreement of the parties with respect to subject matter hereof and\nsupersedes all previous agreements and understandings between the parties with respect to its subject matter.\n15. AMENDMENTS. This Agreement may not be changed, modified, released, discharged, abandoned or otherwise terminated in whole or in part\nexcept by an instrument in writing, agreed to and signed by the Employee and a duly authorized officer of Inspire.\n16. ACKNOWLEDGEMENTS. THE EMPLOYEE ACKNOWLEDGES THAT (i) THE EMPLOYEE HAS READ AND FULLY UNDERSTANDS\nTHIS AGREEMENT; (ii) THE EMPLOYEE HAS BEEN GIVEN THE OPPORTUNITY TO ASK QUESTIONS; (iii) THE\n-4-\nEMPLOYEE HAS RECEIVED A COPY OF THIS AGREEMENT, THE ORIGINAL OF WHICH WILL BE RETAINED IN THE EMPLOYEE’S\nPERSONNEL FILE; AND (iv) THE EMPLOYEE’S OBLIGATIONS UNDER THIS AGREEMENT SURVIVE THE TERMINATION OF THE\nEMPLOYEE’S EMPLOYMENT WITH INSPIRE FOR ANY REASON.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth below.\nINSPIRE PHARMACEUTICALS, INC.\n4222 Emperor Boulevard\nDurham, North Carolina 27703\nBy: /s/ Christy L. Shaffer\nChristy L. Shaffer, Ph.D.,\nChief Executive Officer\nEMPLOYEE: Barry G. Pea\n(Print Name)\n/s/ Barry G. Pea\n(Signature Here)\nDate:\n10/11/04\nAddress: 137 New Castle Drive\nChapel Hill, NC 27517\n-5-\nSCHEDULE A\nPRIOR INVENTIONS\n-6-	EX-10.42 4 dex1042.htm EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE\nAGREEMENT\nEXHIBIT 10.42\nEMPLOYEE\nCONFIDENTIALITY, INVENTION ASSIGNMENT\nAND NON-COMPETE AGREEMENT\nTHIS EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE AGREEMENT (“Agreement”) is made as\nof the date set forth on the signature page below between Inspire Pharmaceuticals, Inc. (“Inspire”), and the person whose name is set forth on the\nsignature page below as Employee (“Employee”).\nIn consideration of Employee’s employment or continued employment by Inspire, with the intention that this Agreement shall apply to the\nentire period of Employee’s employment with Inspire (including the period prior to the date of this Agreement), Employee hereby agrees as follows:\n1. CONFIDENTIAL INFORMATION DEFINED. “Confidential Information” means trade secrets, proprietary information and materials, and confidential\nknowledge and information which includes, but is not limited to, matters of a technical nature (such as discoveries, ideas, concepts, designs,\ndrawings, specifications, techniques, models, diagrams, test data, scientific methods and know-how, and materials such as reagents, substances,\nchemical compounds, subcellular constituents, cell or cell lines, organisms and progeny, and mutants, derivatives or replications derived from or\nrelating to any of the foregoing materials), and matters of a business nature (such as the identity of customers and prospective customers, the nature\nof work being done for or discussed with customers or prospective customers, suppliers, marketing techniques and materials, marketing and\ndevelopment plans, pricing or pricing policies, financial information, plans for further development, and any other information of a similar nature not\navailable to the public).\n“Confidential Information” shall not include information that: (a) was in Employee’s possession or in the public domain before receipt from\nthe Company, as evidenced by the then existing publication or other public dissemination of such information in written or other documentary form;\n(b) becomes available to the public through no fault of Employee; (c) is received in good faith by Employee from a third party who is not subject to\nan obligation of confidentiality to the Company or any other party; or (d) is required by a judicial or administrative authority or court having\ncompetent jurisdiction to be disclosed by Employee, provided that Employee shall promptly notify the Company and allow the Company a\nreasonable time to oppose or limit such order.\n2. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF INSPIRE. Employee acknowledges that, during the period of Employee’s employment\nwith Inspire, Employee has had or will have access to Confidential Information of Inspire. Therefore, Employee agrees that both during and after the\nperiod of Employee’s employment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal,\nreport, publish, disclose or transfer any Confidential Information of Inspire to any person or entity, or (b) use any Confidential Information of Inspire\nfor any purpose or for the benefit of any person or entity, except as may be necessary in the performance of Employee’s work for Inspire.\n3. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF OTHERS. Employee acknowledges that, during the period of Employee’s employment\nwith Inspire, Employee may have had or will\n1-\nhave access to Confidential Information of third parties who have given Inspire the right to use such Confidential Information, subject to a non-\ndisclosure agreement between Inspire and such third party. Therefore, Employee agrees that both during and after the period of Employee’s\nemployment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal, report, publish, disclose\nor transfer any Confidential Information of such third parties to any person or entity, or (b) use any Confidential Information of such third parties for\nany purpose or for the benefit of any person or entity, except as may be necessary in the performance of Employee’s work for Inspire.\n4. PROPERTY OF INSPIRE. Employee acknowledges and agrees that all Confidential Information of Inspire and all reports, drawings, blueprints,\nmaterials, data, code, notes and other documents and records, whether printed, typed, handwritten, videotaped, transmitted or transcribed on data\nfiles or on any other type of media, and whether or not labeled or identified as confidential or proprietary, made or compiled by Employee, or made\navailable to Employee, during the period of Employee employment with Inspire (including the period prior to the date of this Agreement) concerning\nInspire’s Confidential Information are and shall remain Inspire’s property and shall be delivered to Inspire within five (5) business days after the\ntermination of such employment with Inspire or at any earlier time on request of Inspire. Employee shall not retain copies of such Confidential\nInformation, documents and records.\n5. PROPRIETARY NOTICES. Employee shall not, and shall not permit any other person to, remove any proprietary or other legends or restrictive\nnotices contained in or included in any Confidential Information.\n6. INVENTIONS.\n(a) Employee shall promptly, from time to time, fully inform and disclose to Inspire in writing all inventions, copyrightable material, designs,\nimprovements and discoveries of any kind which Employee now has made, conceived or developed (including prior to the date of this Agreement),\nor which Employee may later make, conceive or develop, during the period of Employee’s employment with Inspire, which pertain to or relate to\nInspire’s business or any of the work or businesses carried on by Inspire (“Inventions™). This covenant applies to all such Inventions, whether or not\nthey are eligible for patent, copyright, trademark, trade secret or other legal protection; and whether or not they are conceived and/or developed by\nEmployee alone or with others; and whether or not they are conceived and/or developed during regular working hours; and whether or not they are\nconceived and/or developed at Inspire’s facility or not.\n(b) Inventions shall not include any inventions made, conceived or developed by Employee prior to Employee’s employment with Inspire, a\ncomplete list of which is set forth on Schedule A attached.\n(c) All Inventions shall be the sole and exclusive property of Inspire, and shall be deemed part of the Confidential Information of Inspire for\npurposes of this Agreement, whether or not fixed in a tangible medium of expression. Employee hereby assigns all Employee’s rights in all\nInventions and in all related patents, copyrights and trademarks, trade secrets and other proprietary rights therein to Inspire. Without limiting the\nforegoing, Employee agrees that any copyrightable material shall be deemed to be “works made for hire” and that Inspire shall be deemed the author\nof such works under the United States Copyright Act, provided that in the event and to the extent such works are determined not to constitute “works\nmade for hire”, Employee hereby irrevocably assigns and transfers to Inspire all right, title and interest in such works.\n-\n(d) Employee shall assist and cooperate with Inspire, both during and after the period of Employee’s employment with Inspire, at Inspire’s sole\nexpense, to allow Inspire to obtain, maintain and enforce patent, copyright, trademark, trade secret and other legal protection for the Inventions.\nEmployee shall sign such documents, and do such things necessary, to obtain such protection and to vest Inspire with full and exclusive title in all\nInventions against infringement by others. Employee hereby appoints the Secretary of Inspire as Employee’s attorney-in-fact to execute documents\non Employee’s behalf for this purpose.\n(e) Employee shall not be entitled to any additional compensation for any and all Inventions made during the period of Employee’s\nemployment with Inspire.\n7. COVENANT NOT TO COMPETE. If Employee is, at any time during Employee’s period of employment with Inspire, employed in the discovery or\ndevelopment areas of the Company in a non-clerical position, or as a director level or higher level senior manager of the Company, then this Section\n7 shall apply. Employee and Inspire agree that the services rendered by the Employee are unique and irreplaceable, and that competitive use and\nknowledge of any Confidential Information would substantially and irreparably injure Inspire’s business, prospects and good will. Employee and\nInspire also agree that Inspire’s business is global in nature due to the type of products and/or services being provided. Therefore, Employee agrees\nthat during the period of Employee’s employment with Inspire and for a period of one (1) year thereafter, Employee shall not, directly or indirectly,\nthrough any other person, firm, corporation or other entity (whether as an officer, director, employee, partner, consultant, holder of equity or debt\ninvestment, lender or in any other manner or capacity):\n(a) develop, sell, market, offer to sell products and/or services anywhere in the world that have the same or similar technological approach or\ntechnology platform (e.g., same receptors (such as P2Y), same mechanism of action (such as mucociliary clearance)) as those being developed,\noffered or sold by Inspire on the date of the termination of Employee’s employment with Inspire for any reason;\n(b) solicit, induce, encourage or attempt to induce or encourage any employee or consultant of Inspire to terminate his or her employment or\nconsulting relationship with Inspire, or to breach any other obligation to Inspire;\n(c) solicit, interfere with, disrupt, alter or attempt to disrupt or alter the relationship, contractual or otherwise, between Inspire and any\nconsultant, contractor, customer, potential customer, or supplier of Inspire; or\n(d) engage in or participate in any business in the same industry as Inspire which is conducted under any name that shall be the same as or\nsimilar to the name of Inspire or any trade name used by Inspire.\nEmployee acknowledges that the foregoing geographic, activity and time limitations contained in this Section 7 are reasonable and properly\nrequired for the adequate protection of Inspire’s business. In the event that any such geographic, activity or time limitation is deemed to be\nunreasonable by a court, Employee shall submit to the reduction of either said activity or time limitation to such activity or period as the court shall\ndeem reasonable. In the event that Employee is in violation of the aforementioned restrictive covenants, then the time limitation thereof shall be\nextended for a period of time equal to the pendency of such proceedings, including appeals.\n_3-\n8. REPRESENTATIONS. Employee represents that Employee has the right to enter into this Agreement, and that Employee’s performance of all the\nterms of this Agreement and his duties as an employee of Inspire will not breach any confidential information agreement, non-competition\nagreement or other agreement with any former employer of his services, either as an employee, consultant, contractor or independent contractor, or\nwith any other party. Employee represents that Employee will not disclose to Inspire any trade secrets or confidential or proprietary information of\nany third party that are not generally available to the public.\n9. DISCLOSURE OF THIS AGREEMENT. Employee hereby authorizes Inspire to notify others, including but not limited to customers of Inspire and any\nof Employee’s future employers, of the terms of this Agreement and Employee’s responsibilities under this Agreement.\n10. SPECIFIC PERFORMANCE. Employee acknowledges that money damages alone would not adequately compensate Inspire in the event of a breach\nor threatened breach by Employee of this Agreement, and that, in addition to all other remedies available to Inspire at law or in equity, Inspire shall\nbe entitled to injunctive relief for the enforcement of its rights and to an accounting of profits made during the period of such breach.\n11. No RIGHTS GRANTED. Employee understands that nothing in this Agreement shall be deemed to constitute, by implication or otherwise, the\ngrant by Inspire to the employee of any license or other right under any patent, patent application or other intellectual property right or interest\nbelonging to Inspire.\n12. SEVERABILITY.\n(a) Each of the covenants provided in this Agreement are separate and independent covenants. If any provision of this Agreement shall be\ndetermined to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and any such invalid or unenforceable\nprovision shall be reformed so as to be valid and enforceable to the fullest extent permitted by law.\n(b) It is not a defense to the enforcement of any provision of this Agreement that Inspire has breached or failed to perform any obligation or\ncovenant hereunder or under any other agreement or understanding between Employee and Inspire.\n13. GOVERNING LAw. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without regard\nto conflict of law rules. All suits and claims shall be made only in state or federal courts located in North Carolina.\n14. SUPERSEDES OTHER AGREEMENTS. This Agreement contains the entire agreement of the parties with respect to subject matter hereof and\nsupersedes all previous agreements and understandings between the parties with respect to its subject matter.\n15. AMENDMENTS. This Agreement may not be changed, modified, released, discharged, abandoned or otherwise terminated in whole or in part\nexcept by an instrument in writing, agreed to and signed by the Employee and a duly authorized officer of Inspire.\n16. ACKNOWLEDGEMENTS. THE EMPLOYEE ACKNOWLEDGES THAT (i) THE EMPLOYEE HAS READ AND FULLY UNDERSTANDS\nTHIS AGREEMENT; (ii) THE EMPLOYEE HAS BEEN GIVEN THE OPPORTUNITY TO ASK QUESTIONS; (iii) THE\n4-\nEMPLOYEE HAS RECEIVED A COPY OF THIS AGREEMENT, THE ORIGINAL OF WHICH WILL BE RETAINED IN THE EMPLOYEE’S PERSONNEL FILE; AND (iv) THE EMPLOYEE’S OBLIGATIONS UNDER THIS AGREEMENT SURVIVE THE TERMINATION OF THE EMPLOYEE’S EMPLOYMENT WITH INSPIRE FOR ANY REASON.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth below. INSPIRE PHARMACEUTICALS, INC.\n4222 Emperor Boulevard\nDurham, North Carolina 27703\nBy: /s/ Christy L. Shaffer\nChristy L. Shaffer, Ph.D.,\nChief Executive Officer\nEMPLOYEE: Barry G. Pea\n(Print Name)\n/s/ Barry G. Pea\n(Signature Here)\nDate: 10/11/04\nAddress: 137 New Castle Drive\nChapel Hill, NC 27517\n \nSCHEDULE A\nPRIOR INVENTIONS\n-6-	EX-10.42 4 ex1042.htm EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE\nAGREEMENT\nEXHIBIT 10.42\nEMPLOYEE\nCONFIDENTIALITY, INVENTION ASSIGNMENT\nAND NON-COMPETE AGREEMENT\nTHIS EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE AGREEMENT ("Agreement") is made as\nof the date set forth on the signature page below between Inspire Pharmaceuticals, Inc. ("Inspire"), and the person whose name is set forth on\nthe\nsignature page below as Employee ("Employee").\nIn consideration of Employee's employment or continued employment by Inspire, with the intention that this Agreement shall apply to the\nentire period of Employee's employment with Inspire (including the period prior to the date of this Agreement), Employee hereby agrees as follows:\n1. CONFIDENTIAL INFORMATION DEFINED. "Confidential Information" means trade secrets, proprietary information and materials, and confidential\nknowledge and information which includes, but is not limited to, matters of a technical nature (such as discoveries, ideas, concepts, designs,\ndrawings, specifications, techniques, models, diagrams, test data, scientific methods and know-how, and materials such as reagents, substances,\nchemical compounds, subcellular constituents, cell or cell lines, organisms and progeny, and mutants, derivatives or replications derived from or\nrelating to any of the foregoing materials), and matters of a business nature (such as the identity of customers and prospective customers, the nature\nof work being done for or discussed with customers or prospective customers, suppliers, marketing techniques and materials, marketing and\ndevelopment plans, pricing or pricing policies, financial information, plans for further development, and any other information of a similar nature not\navailable to the public).\n"Confidential Information" shall not include information that: (a) was in Employee's possession or in the public domain before receipt from\nthe Company, as evidenced by the then existing publication or other public dissemination of such information in written or other documentary form;\n(b) becomes available to the public through no fault of Employee; (c) is received in good faith by Employee from a third party who is not subject to\nan obligation of confidentiality to the Company or any other party; or (d) is required by a judicial or administrative authority or court having\ncompetent jurisdiction to be disclosed by Employee, provided that Employee shall promptly notify the Company and allow the Company a\nreasonable time to oppose or limit such order.\n2. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF INSPIRE. Employee acknowledges that, during the period of Employee's employment\nwith Inspire, Employee has had or will have access to Confidential Information of Inspire. Therefore, Employee agrees that both during and after the\nperiod of Employee's employment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal,\nreport, publish, disclose or transfer any Confidential Information of Inspire to any person or entity, or (b) use any Confidential Information of Inspire\nfor any purpose or for the benefit of any person or entity, except as may be necessary in the performance of Employee's work for Inspire.\n3. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF OTHERS. Employee acknowledges that, during the period of Employee's employment\nwith Inspire, Employee may have had or will\n-1-\nhave access to Confidential Information of third parties who have given Inspire the right to use such Confidential Information, subject to a non-\ndisclosure agreement between Inspire and such third party. Therefore, Employee agrees that both during and after the period of Employee's\nemployment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal, report, publish, disclose\nor transfer any Confidential Information of such third parties to any person or entity, or (b) use any Confidential Information of such third parties for\nany purpose or for the benefit of any person or entity, except as may be necessary in the performance of Employee's work for Inspire.\n4. PROPERTY OF INSPIRE. Employee acknowledges and agrees that all Confidential Information of Inspire and all reports, drawings, blueprints,\nmaterials, data, code, notes and other documents and records, whether printed, typed, handwritten, videotaped, transmitted or transcribed on data\nfiles\nor\non\nany other type of media, and whether or not labeled or identified as confidential or proprietary, made or compiled by Employee, or made\navailable to Employee, during the period of Employee employment with Inspire (including the period prior to the date of this Agreement) concerning\nInspire's Confidential Information are and shall remain Inspire's property and shall be delivered to Inspire within five (5) business days after\nthe\ntermination of such employment with Inspire or at any earlier time on request of Inspire. Employee shall not retain copies of such Confidential\nInformation, documents and records.\n5. PROPRIETARY NOTICES. Employee shall not, and shall not permit any other person to, remove any proprietary or other legends or restrictive\nnotices contained in or included in any Confidential Information.\n6. INVENTIONS.\n(a) Employee shall promptly, from time to time, fully inform and disclose to Inspire in writing all inventions, copyrightable material, designs,\nimprovements and discoveries of any kind which Employee now has made, conceived or developed (including prior to the date of this Agreement),\nor which Employee may later make, conceive or develop, during the period of Employee's employment with Inspire, which pertain to or relate to\nInspire's business or any of the work or businesses carried on by Inspire ("Inventions"). This covenant applies to all such Inventions, whether or not\nthey are eligible for patent, copyright, trademark, trade secret or other legal protection; and whether or not they are conceived and/or developed by\nEmployee alone or with others; and whether or not they are conceived and/or developed during regular working hours; and whether or not they\nare\nconceived and/or developed at Inspire's facility or not.\n(b) Inventions shall not include any inventions made, conceived or developed by Employee prior to Employee's employment with Inspire, a\ncomplete list of which is set forth on Schedule A attached.\n(c) All Inventions shall be the sole and exclusive property of Inspire, and shall be deemed part of the Confidential Information of Inspire for\npurposes of this Agreement, whether or not fixed in a tangible medium of expression. Employee hereby assigns all Employee's rights in all\nInventions and in all related patents, copyrights and trademarks, trade secrets and other proprietary rights therein to Inspire. Without limiting\nthe\nforegoing, Employee agrees that any copyrightable material shall be deemed to be "works made for hire" and that Inspire shall be deemed the author\nof such works under the United States Copyright Act, provided that in the event and to the extent such works are determined not to constitute "works\nmade for hire", Employee hereby irrevocably assigns and transfers to Inspire all right, title and interest in such works.\n-2-\n(d) Employee shall assist and cooperate with Inspire, both during and after the period of Employee's employment with Inspire, at Inspire's sole\nexpense, to allow Inspire to obtain, maintain and enforce patent, copyright, trademark, trade secret and other legal protection for the Inventions.\nEmployee shall sign such documents, and do such things necessary, to obtain such protection and to vest Inspire with full and exclusive title in all\nInventions against infringement by others. Employee hereby appoints the Secretary of Inspire as Employee's attorney-in-fact to execute documents\non Employee's behalf for this purpose.\n(e) Employee shall not be entitled to any additional compensation for any and all Inventions made during the period of Employee's\nemployment with Inspire.\n7. COVENANT NOT TO COMPETE. If Employee is, at any time during Employee's period of employment with Inspire, employed in the discovery\nor\ndevelopment areas of the Company in a non-clerical position, or as a director level or higher level senior manager of the Company, then this Section\n7 shall apply. Employee and Inspire agree that the services rendered by the Employee are unique and irreplaceable, and that competitive use and\nknowledge of any Confidential Information would substantially and irreparably injure Inspire's business, prospects and good will. Employee and\nInspire also agree that Inspire's business is global in nature due to the type of products and/or services being provided Therefore, Employee agrees\nthat\nduring\nthe period of Employee's employment with Inspire and for a period of one (1) year thereafter, Employee shall not, directly or indirectly,\nthrough any other person, firm, corporation or other entity (whether as an officer, director, employee, partner, consultant, holder of equity or debt\ninvestment, lender or in any other manner or capacity):\n(a) develop, sell, market, offer to sell products and/or services anywhere in the world that have the same or similar technological approach or\ntechnology platform (e.g., same receptors (such as P2Y), same mechanism of action (such as mucociliary clearance)) as those being developed,\noffered or sold by Inspire on the date of the termination of Employee's employment with Inspire for any reason;\n(b) solicit, induce, encourage or attempt to induce or encourage any employee or consultant of Inspire to terminate his or her employment\nor\nconsulting relationship with Inspire, or to breach any other obligation to Inspire;\n(c) solicit, interfere with, disrupt, alter or attempt to disrupt or alter the relationship, contractual or otherwise, between Inspire and any\nconsultant, contractor, customer, potential customer, or supplier of Inspire; or\n(d) engage in or participate in any business in the same industry as Inspire which is conducted under any name that shall be the same as\nor\nsimilar to the name of Inspire or any trade name used by Inspire\nEmployee acknowledges that the foregoing geographic, activity and time limitations contained in this Section 7 are reasonable and properly\nrequired for the adequate protection of Inspire's business. In the event that any such geographic, activity or time limitation is deemed to be\nunreasonable by a court, Employee shall submit to the reduction of either said activity or time limitation to such activity or period as the court shall\ndeem reasonable. In the event that Employee is in violation of the aforementioned restrictive covenants, then the time limitation thereof shall be\nextended for a period of time equal to the pendency of such proceedings, including appeals.\n-3-\n8. REPRESENTATIONS. Employee represents that Employee has the right to enter into this Agreement, and that Employee's performance of all the\nterms of this Agreement and his duties as an employee of Inspire will not breach any confidential information agreement, non-competition\nagreement or other agreement with any former employer of his services, either as an employee, consultant, contractor or independent contractor, or\nwith any other party. Employee represents that Employee will not disclose to Inspire any trade secrets or confidential or proprietary information of\nany third party that are not generally available to the public.\n9. DISCLOSURE OF THIS AGREEMENT. Employee hereby authorizes Inspire to notify others, including but not limited to customers of Inspire and any\nof Employee's future employers, of the terms of this Agreement and Employee's responsibilities under this Agreement.\n10. SPECIFIC PERFORMANCE. Employee acknowledges that money damages alone would not adequately compensate Inspire in the event of a breach\nor threatened breach by Employee of this Agreement, and that, in addition to all other remedies available to Inspire at law or in equity, Inspire shall\nbe entitled to injunctive relief for the enforcement of its rights and to an accounting of profits made during the period of such breach.\n11. No RIGHTS GRANTED. Employee understands that nothing in this Agreement shall be deemed to constitute, by implication or otherwise, the\ngrant\nby Inspire to the employee of any license or other right under any patent, patent application or other intellectual property right or interest\nbelonging to Inspire.\n12. SEVERABILITY.\n(a) Each of the covenants provided in this Agreement are separate and independent covenants. If any provision of this Agreement shall be\ndetermined to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and any such invalid or unenforceable\nprovision shall be reformed so as to be valid and enforceable to the fullest extent permitted by law.\n(b) It is not a defense to the enforcement of any provision of this Agreement that Inspire has breached or failed to perform any obligation or\ncovenant hereunder or under any other agreement or understanding between Employee and Inspire.\n13. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without regard\nto conflict of law rules. All suits and claims shall be made only in state or federal courts located in North Carolina.\n14. SUPERSEDES OTHER AGREEMENTS. This Agreement contains the entire agreement of the parties with respect to subject matter hereof and\nsupersedes all previous agreements and understandings between the parties with respect to its subject matter.\n15. AMENDMENTS. This Agreement may not be changed, modified, released, discharged, abandoned or otherwise terminated in whole or in part\nexcept by an instrument in writing, agreed to and signed by the Employee and a duly authorized officer of Inspire.\n16. ACKNOWLEDGEMENTS. THE EMPLOYEE ACKNOWLEDGES THAT (i) THE EMPLOYEE HAS READ AND FULLY UNDERSTANDS\nTHIS AGREEMENT; (ii) THE EMPLOYEE HAS BEEN GIVEN THE OPPORTUNITY TO ASK QUESTIONS; (iii) THE\n-4-\nEMPLOYEE HAS RECEIVED A COPY OF THIS AGREEMENT, THE ORIGINAL OF WHICH WILL BE RETAINED IN THE EMPLOYEE'S\nPERSONNEL FILE; AND (iv) THE EMPLOYEE'S OBLIGATIONS UNDER THIS AGREEMENT SURVIVE THE TERMINATION OF THE\nEMPLOYEE'S EMPLOYMENT WITH INSPIRE FOR ANY REASON.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth below.\nINSPIRE PHARMACEUTICALS, INC.\n4222 Emperor Boulevard\nDurham, North Carolina 27703\nBy: /s/ Christy L. Shaffer\nChristy L. Shaffer, Ph.D.,\nChief Executive Officer\nEMPLOYEE: Barry G. Pea\n(Print Name)\n/s/ Barry G. Pea\n(Signature Here)\nDate: 10/11/04\nAddress: 137 New Castle Drive\nChapel Hill, NC 27517\n-5-\nSCHEDULE A\nPRIOR INVENTIONS\n-6-	EX-10.42 4 dex1042.htm EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE\nAGREEMENT\nEXHIBIT 10.42\nEMPLOYEE\nCONFIDENTIALITY, INVENTION ASSIGNMENT\nAND NON-COMPETE AGREEMENT\nTHIS EMPLOYEE CONFIDENTIALITY, INVENTION ASSIGNMENT AND NON-COMPETE AGREEMENT (“Agreement”) is made as\nof the date set forth on the signature page below between Inspire Pharmaceuticals, Inc. (“Inspire”), and the person whose name is set forth on the\nsignature page below as Employee (“Employee”).\nIn consideration of Employee’s employment or continued employment by Inspire, with the intention that this Agreement shall apply to the\nentire period of Employee’s employment with Inspire (including the period prior to the date of this Agreement), Employee hereby agrees as follows:\n1. CONFIDENTIAL INFORMATION DEFINED. “Confidential Information” means trade secrets, proprietary information and materials, and confidential\nknowledge and information which includes, but is not limited to, matters of a technical nature (such as discoveries, ideas, concepts, designs,\ndrawings, specifications, techniques, models, diagrams, test data, scientific methods and know-how, and materials such as reagents, substances,\nchemical compounds, subcellular constituents, cell or cell lines, organisms and progeny, and mutants, derivatives or replications derived from or\nrelating to any of the foregoing materials), and matters of a business nature (such as the identity of customers and prospective customers, the nature\nof work being done for or discussed with customers or prospective customers, suppliers, marketing techniques and materials, marketing and\ndevelopment plans, pricing or pricing policies, financial information, plans for further development, and any other information of a similar nature not\navailable to the public).\n“Confidential Information” shall not include information that: (a) was in Employee’s possession or in the public domain before receipt from\nthe Company, as evidenced by the then existing publication or other public dissemination of such information in written or other documentary form;\n(b) becomes available to the public through no fault of Employee; (c) is received in good faith by Employee from a third party who is not subject to\nan obligation of confidentiality to the Company or any other party; or (d) is required by a judicial or administrative authority or court having\ncompetent jurisdiction to be disclosed by Employee, provided that Employee shall promptly notify the Company and allow the Company a\nreasonable time to oppose or limit such order.\n2. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF INSPIRE. Employee acknowledges that, during the period of Employee’s employment\nwith Inspire, Employee has had or will have access to Confidential Information of Inspire. Therefore, Employee agrees that both during and after the\nperiod of Employee’s employment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal,\nreport, publish, disclose or transfer any Confidential Information of Inspire to any person or entity, or (b) use any Confidential Information of Inspire\nfor any purpose or for the benefit of any person or entity, except as may be necessary in the performance of Employee’s work for Inspire.\n3. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION OF OTHERS. Employee acknowledges that, during the period of Employee’s employment\nwith Inspire, Employee may have had or will\n-1-\nhave access to Confidential Information of third parties who have given Inspire the right to use such Confidential Information, subject to a non-\ndisclosure agreement between Inspire and such third party. Therefore, Employee agrees that both during and after the period of Employee’s\nemployment with Inspire, Employee shall not, without the prior written approval of Inspire, directly or indirectly (a) reveal, report, publish, disclose\nor transfer any Confidential Information of such third parties to any person or entity, or (b) use any Confidential Information of such third parties for\nany purpose or for the benefit of any person or entity, except as may be necessary in the performance of Employee’s work for Inspire.\n4. PROPERTY OF INSPIRE. Employee acknowledges and agrees that all Confidential Information of Inspire and all reports, drawings, blueprints,\nmaterials, data, code, notes and other documents and records, whether printed, typed, handwritten, videotaped, transmitted or transcribed on data\nfiles or on any other type of media, and whether or not labeled or identified as confidential or proprietary, made or compiled by Employee, or made\navailable to Employee, during the period of Employee employment with Inspire (including the period prior to the date of this Agreement) concerning\nInspire’s Confidential Information are and shall remain Inspire’s property and shall be delivered to Inspire within five (5) business days after the\ntermination of such employment with Inspire or at any earlier time on request of Inspire. Employee shall not retain copies of such Confidential\nInformation, documents and records.\n5. PROPRIETARY NOTICES. Employee shall not, and shall not permit any other person to, remove any proprietary or other legends or restrictive\nnotices contained in or included in any Confidential Information.\n6. INVENTIONS.\n(a) Employee shall promptly, from time to time, fully inform and disclose to Inspire in writing all inventions, copyrightable material, designs,\nimprovements and discoveries of any kind which Employee now has made, conceived or developed (including prior to the date of this Agreement),\nor which Employee may later make, conceive or develop, during the period of Employee’s employment with Inspire, which pertain to or relate to\nInspire’s business or any of the work or businesses carried on by Inspire (“Inventions”). This covenant applies to all such Inventions, whether or not\nthey are eligible for patent, copyright, trademark, trade secret or other legal protection; and whether or not they are conceived and/or developed by\nEmployee alone or with others; and whether or not they are conceived and/or developed during regular working hours; and whether or not they are\nconceived and/or developed at Inspire’s facility or not.\n(b) Inventions shall not include any inventions made, conceived or developed by Employee prior to Employee’s employment with Inspire, a\ncomplete list of which is set forth on Schedule A attached.\n(c) All Inventions shall be the sole and exclusive property of Inspire, and shall be deemed part of the Confidential Information of Inspire for\npurposes of this Agreement, whether or not fixed in a tangible medium of expression. Employee hereby assigns all Employee’s rights in all\nInventions and in all related patents, copyrights and trademarks, trade secrets and other proprietary rights therein to Inspire. Without limiting the\nforegoing, Employee agrees that any copyrightable material shall be deemed to be “works made for hire” and that Inspire shall be deemed the author\nof such works under the United States Copyright Act, provided that in the event and to the extent such works are determined not to constitute “works\nmade for hire”, Employee hereby irrevocably assigns and transfers to Inspire all right, title and interest in such works.\n-2-\n(d) Employee shall assist and cooperate with Inspire, both during and after the period of Employee’s employment with Inspire, at Inspire’s sole\nexpense, to allow Inspire to obtain, maintain and enforce patent, copyright, trademark, trade secret and other legal protection for the Inventions.\nEmployee shall sign such documents, and do such things necessary, to obtain such protection and to vest Inspire with full and exclusive title in all\nInventions against infringement by others. Employee hereby appoints the Secretary of Inspire as Employee’s attorney-in-fact to execute documents\non Employee’s behalf for this purpose.\n(e) Employee shall not be entitled to any additional compensation for any and all Inventions made during the period of Employee’s\nemployment with Inspire.\n7. COVENANT NOT TO COMPETE. If Employee is, at any time during Employee’s period of employment with Inspire, employed in the discovery or\ndevelopment areas of the Company in a non-clerical position, or as a director level or higher level senior manager of the Company, then this Section\n7 shall apply. Employee and Inspire agree that the services rendered by the Employee are unique and irreplaceable, and that competitive use and\nknowledge of any Confidential Information would substantially and irreparably injure Inspire’s business, prospects and good will. Employee and\nInspire also agree that Inspire’s business is global in nature due to the type of products and/or services being provided. Therefore, Employee agrees\nthat during the period of Employee’s employment with Inspire and for a period of one (1) year thereafter, Employee shall not, directly or indirectly,\nthrough any other person, firm, corporation or other entity (whether as an officer, director, employee, partner, consultant, holder of equity or debt\ninvestment, lender or in any other manner or capacity):\n(a) develop, sell, market, offer to sell products and/or services anywhere in the world that have the same or similar technological approach or\ntechnology platform (e.g., same receptors (such as P2Y), same mechanism of action (such as mucociliary clearance)) as those being developed,\noffered or sold by Inspire on the date of the termination of Employee’s employment with Inspire for any reason;\n(b) solicit, induce, encourage or attempt to induce or encourage any employee or consultant of Inspire to terminate his or her employment or\nconsulting relationship with Inspire, or to breach any other obligation to Inspire;\n(c) solicit, interfere with, disrupt, alter or attempt to disrupt or alter the relationship, contractual or otherwise, between Inspire and any\nconsultant, contractor, customer, potential customer, or supplier of Inspire; or\n(d) engage in or participate in any business in the same industry as Inspire which is conducted under any name that shall be the same as or\nsimilar to the name of Inspire or any trade name used by Inspire.\nEmployee acknowledges that the foregoing geographic, activity and time limitations contained in this Section 7 are reasonable and properly\nrequired for the adequate protection of Inspire’s business. In the event that any such geographic, activity or time limitation is deemed to be\nunreasonable by a court, Employee shall submit to the reduction of either said activity or time limitation to such activity or period as the court shall\ndeem reasonable. In the event that Employee is in violation of the aforementioned restrictive covenants, then the time limitation thereof shall be\nextended for a period of time equal to the pendency of such proceedings, including appeals.\n-3-\n8. REPRESENTATIONS. Employee represents that Employee has the right to enter into this Agreement, and that Employee’s performance of all the\nterms of this Agreement and his duties as an employee of Inspire will not breach any confidential information agreement, non-competition\nagreement or other agreement with any former employer of his services, either as an employee, consultant, contractor or independent contractor, or\nwith any other party. Employee represents that Employee will not disclose to Inspire any trade secrets or confidential or proprietary information of\nany third party that are not generally available to the public.\n9. DISCLOSURE OF THIS AGREEMENT. Employee hereby authorizes Inspire to notify others, including but not limited to customers of Inspire and any\nof Employee’s future employers, of the terms of this Agreement and Employee’s responsibilities under this Agreement.\n10. SPECIFIC PERFORMANCE. Employee acknowledges that money damages alone would not adequately compensate Inspire in the event of a breach\nor threatened breach by Employee of this Agreement, and that, in addition to all other remedies available to Inspire at law or in equity, Inspire shall\nbe entitled to injunctive relief for the enforcement of its rights and to an accounting of profits made during the period of such breach.\n11. NO RIGHTS GRANTED. Employee understands that nothing in this Agreement shall be deemed to constitute, by implication or otherwise, the\ngrant by Inspire to the employee of any license or other right under any patent, patent application or other intellectual property right or interest\nbelonging to Inspire.\n12. SEVERABILITY.\n(a) Each of the covenants provided in this Agreement are separate and independent covenants. If any provision of this Agreement shall be\ndetermined to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and any such invalid or unenforceable\nprovision shall be reformed so as to be valid and enforceable to the fullest extent permitted by law.\n(b) It is not a defense to the enforcement of any provision of this Agreement that Inspire has breached or failed to perform any obligation or\ncovenant hereunder or under any other agreement or understanding between Employee and Inspire.\n13. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina without regard\nto conflict of law rules. All suits and claims shall be made only in state or federal courts located in North Carolina.\n14. SUPERSEDES OTHER AGREEMENTS. This Agreement contains the entire agreement of the parties with respect to subject matter hereof and\nsupersedes all previous agreements and understandings between the parties with respect to its subject matter.\n15. AMENDMENTS. This Agreement may not be changed, modified, released, discharged, abandoned or otherwise terminated in whole or in part\nexcept by an instrument in writing, agreed to and signed by the Employee and a duly authorized officer of Inspire.\n16. ACKNOWLEDGEMENTS. THE EMPLOYEE ACKNOWLEDGES THAT (i) THE EMPLOYEE HAS READ AND FULLY UNDERSTANDS\nTHIS AGREEMENT; (ii) THE EMPLOYEE HAS BEEN GIVEN THE OPPORTUNITY TO ASK QUESTIONS; (iii) THE\n-4-\nEMPLOYEE HAS RECEIVED A COPY OF THIS AGREEMENT, THE ORIGINAL OF WHICH WILL BE RETAINED IN THE EMPLOYEE’S\nPERSONNEL FILE; AND (iv) THE EMPLOYEE’S OBLIGATIONS UNDER THIS AGREEMENT SURVIVE THE TERMINATION OF THE\nEMPLOYEE’S EMPLOYMENT WITH INSPIRE FOR ANY REASON.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth below.\nINSPIRE PHARMACEUTICALS, INC.\n4222 Emperor Boulevard\nDurham, North Carolina 27703\nBy: /s/ Christy L. Shaffer\nChristy L. Shaffer, Ph.D.,\nChief Executive Officer\nEMPLOYEE: Barry G. Pea\n(Print Name)\n/s/ Barry G. Pea\n(Signature Here)\nDate:\n10/11/04\nAddress: 137 New Castle Drive\nChapel Hill, NC 27517\n-5-\nSCHEDULE A\nPRIOR INVENTIONS\n-6-
+6a1526e7b6044ef4589f657d13c2f61a.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 11 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nSTRICTLY CONFIDENTIAL\nSeptember 3, 2007\nDanaher Corporation\n2099 Pennsylvania Avenue, NW\n12th Floor\nWashington, D.C . 20006\nAttention: Jonathan Schwarz\nLadies and Gentlemen:\nYou have requested information from Tektronix, Inc. (the “Company”) in connection with your consideration of a possible transaction\nregarding the Company (a “Transaction”). The Company may in its sole discretion from time to time furnish or otherwise make available to you\ncertain information about its business in consideration for your agreement to abide by the confidentiality and other terms of this letter agreement\n(this “Agreement”).\n1. Confidentiality.\n(a) You agree to keep confidential and to use only for the purpose of evaluating a possible Transaction between us all non-public\ninformation concerning the Company that the Company or its Representatives (as hereinafter defined) furnishes or otherwise provides to\nyou or your Representatives in the course of your investigation and whether in oral, written or electronic form, together with any reports,\nanalyses, compilations, forecasts, memoranda, notes, studies and any other written or electronic materials prepared by you or your\nRepresentatives that contain such information (collectively, the “Evaluation Material”); provided, however, that (i) any Evaluation\nMaterial may be disclosed to officers, directors, employees, accountants, legal counsel, investment bankers, commercial banks and other\nfunding sources, consultants, and other representatives (such persons being generally referred to herein as “Representatives”) of yours\nwho need to know such information for the purpose of evaluating a Transaction between us so long as you cause your Representatives to\ntreat the Evaluation Material in a confidential manner and in accordance with the terms hereof, (ii) any disclosure of the Evaluation\nMaterial may be made to which the Company expressly consents in writing and (iii) any disclosure of the Evaluation Material may be\nmade as outlined in Section 1(d) below. Notwithstanding the above, the term “Evaluation Material” does not include information that\n(i) was or becomes available to you on a non-confidential basis from a source other than the Company or its Representatives, provided\nthat, after making reasonable inquiry, you do not know such other source to be bound by a confidentiality obligation to the Company\nwith respect to such information, (ii) was or becomes available to the public (other than as a result of a breach by you or your\nRepresentatives of this Agreement), (iii) is already in your or your Representatives’ possession at the time of its disclosure or (iv) is\nindependently developed by you without reference to any Evaluation Material. You agree to treat (and shall cause your Representatives\nto treat) the Evaluation Material with at least the degree of care that you treat similar materials of your own, or a higher standard of care\nif reasonable under the circumstances.\n(b) Each of the parties hereto agrees that neither it nor any of its Representatives will, without the prior written consent of the other,\ndirectly or indirectly, (i) disclose to any other person (other than its Representatives) the fact that discussions or negotiations may take\nplace, are taking place or have taken place concerning a possible Transaction or any of the terms or other facts relating thereto, including\nthe status thereof, (ii) disclose to any other person (other than its Representatives) the existence or the terms of this Agreement, or\n(iii) disclose to any other person (other than its Representatives) that you or\n1\nyour Representatives have received or produced any Evaluation Material; provided, however, that any disclosure prohibited by this\nparagraph may be made to the extent the disclosing party has received the advice of its outside counsel that such disclosure is required to\nbe made by it in order to avoid violating any federal or state law or rules or regulations of a national securities exchange or self-\nregulatory organization to which you are subject; and, provided further, that the disclosing party will notify the other party prior to\nmaking any such disclosure in accordance with the procedures outlined in section (d) below and will otherwise act in accordance with\nsection (d) below (mutatis mutandis where the Company is the disclosing party).\n(c) It is understood that all requests for information, facility tours or management meetings and discussions or questions regarding\nprocedures will be submitted or directed to Sam Britton or Lev Finkelstein at Goldman, Sachs & Co. or such other persons designated\nand notified to you in writing from time to time by the Company (the “Company Designees”). It is understood that Goldman, Sachs &\nCo. will arrange for appropriate contacts for due diligence purposes, which contacts will be permitted hereunder.\n(d) In the event that you or any of your Representatives are requested to disclose any Evaluation Material in connection with any\njudicial or administrative proceedings (by oral questions, interrogatories, requests for information or documents, subpoena, Civil\nInvestigation Demand or similar process) or on advice of outside counsel, you will provide the Company with prompt written notice of\nsuch requirement(s) in advance of such disclosure where possible. You also agree, to the extent legally permissible and if possible, (i) to\nprovide the Company with a list of any Evaluation Material you or any of your Representatives intend to disclose (and, if applicable, the\ntext of the disclosure language itself) in advance of any such disclosure, and (ii) to cooperate with the Company to the extent it may seek\nto limit such disclosure, including, if requested, taking reasonable steps (at the Company’s expense) to resist or avoid any such\ndisclosure. If you have not provided the Company with advance notice of any such disclosure because the provision of such advance\nnotice was not possible, you agree, to the extent legally permissible, to provide the Company with prompt written notice of such\ndisclosure after such disclosure is made, including a list of any Evaluation Material you or any of your Representatives disclosed (and, if\napplicable, the text of the disclosure language itself). Regardless of whether or not such advance notice was possible, you or your\nRepresentatives, as applicable, shall disclose only that portion of the Evaluation Material that you are advised is legally required to be\ndisclosed by outside counsel and shall use commercially reasonable efforts to obtain reliable assurances that confidential treatment will\nbe accorded to any Evaluation Material that you or your Representatives are legally required to disclose after complying with the\nprovisions of this paragraph.\n(e) In the event that either party in its sole discretion determines that it does not wish to proceed with a possible Transaction, upon\nthe request of the Company, you will (and you will cause your Representatives to) promptly deliver to the Company or, at your option,\ndestroy all Evaluation Material, including, without limitation, expunging to the extent reasonably practicable all Evaluation Material\nfrom any computer, word processor or other device in your possession or in the possession of your Representatives, and you shall certify\nto the Company that you and your Representatives have done so; provided, however, that you and your Representatives need only use\nreasonable efforts to delete Evaluation Material from back-up, archival electronic storage or need not delete Evaluation Material from\nback-up, archival electronic storage, so long as only your or your Representatives’ information technology personnel responsible for the\nadministration of such storage are able to access such Evaluation Material; provided, further, that if you or your Representatives or any\nsuch information technology personnel discover such Evaluation Material in such storage, you shall (or shall cause your Representatives\nor such information technology personnel to) promptly delete it. Notwithstanding the delivery or destruction of the Evaluation Material\nrequired by this paragraph, any and all duties and obligations existing under this Agreement shall remain in full force and effect during\nthe term of this Agreement.\n2\n2. Non-Solicitation of Senior Employees.\nFor a period of 12 months from the date hereof, each of the parties agrees that it will not solicit for hire any senior employees of the other party\nor any of its subsidiaries with whom it has first come into contact in connection with the Transaction or evaluation thereof; provided, however, that\ngeneral solicitation of employment through general advertisements or other means not specifically targeted to employees of yours or the Company,\nas applicable, shall not be deemed a violation of such party’s obligation not to solicit; provided, further, that the foregoing shall not apply to (i) any\nperson who approached you without any solicitation or inducement by you or on your behalf or (ii) any person not employed by the Company or any\nof its subsidiaries at the time of the solicitation (mutatis mutandis where the Company is the approached or soliciting party).\n3. Standstill.\n(a) Subject to Section 3(b) of this Agreement, for a period of nine months from the date of this Agreement (the “Standstill Period”)\nyou will not (and you will not request or encourage your affiliates or Representatives to on your behalf) without the prior written\npermission of the Company: (i) acquire or offer, seek, propose or agree to acquire, beneficial ownership of more than 1% of the voting\nsecurities of the Company or any consolidated assets of the Company, not counting any purchases of assets in the ordinary course,\n(ii) propose to enter into, directly or indirectly, any merger, consolidation, recapitalization, business combination or other similar\ntransaction involving the Company, (iii) make, or in any way participate in, any “solicitation” of “proxies” (as such terms are used in the\nproxy rules of the Securities and Exchange Commission) or consents to vote or seek to advise or influence any person with respect to the\nvoting of any voting securities of the Company, (iv) form, join or in any way participate in a “group” (within the meaning of\nSection 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of the\nCompany, (v) otherwise act, alone or in concert with others, to seek to control or influence the management or policies of the Company\nor (vi) take any action which would reasonably be expected to force the Company to make a public announcement about this Agreement\nor a possible Transaction; provided, however, that nothing contained in this Agreement shall prevent you from making a confidential\nproposal to the Board of Directors of the Company, without public disclosure by you, for a tender offer, exchange offer, merger, other\nbusiness combination, other extraordinary transaction or Combination (as defined in Section 3(b) of this Agreement) involving the\nCompany or for an acquisition of all or a material portion of the common stock or the consolidated assets of the Company, provided that\nyou are specifically invited in writing in advance to do so by the Company’s Board of Directors.\n(b) If at any time during the Standstill Period (i) the Company enters into a definitive agreement providing for a Combination or the\nCompany redeems any rights under, or modifies or agrees in writing to modify, a shareholder rights plan to facilitate any Combination,\n(ii) a tender or exchange offer that if consummated would constitute a Combination is made for securities of the Company, (iii) the\nCompany engages in a formal, public “auction” process that includes consideration of one or more transactions that if consummated\nwould constitute a Combination or (iv) a person or “group” (within the meaning of Section 13(d) under the Exchange Act) enters into an\nagreement or commences a proxy solicitation by which the person or “group” would, if successful, elect or acquire the ability to elect a\nmajority of the Board of Directors of the Company, then the restrictions set forth in this Section 3 of this Agreement shall terminate and\nall other provisions of this Agreement shall continue to be in full force and effect in accordance with the terms hereof. A “Combination”\nshall mean a transaction in which (i) a person or “group” (within the meaning of Section 13(d) under the Exchange Act) acquires,\ndirectly or indirectly, securities representing a majority of the voting power of the outstanding securities of the Company or properties or\nassets constituting a majority of the consolidated assets of the Company and its subsidiaries or (ii) in any case not covered by (i), the\nCompany engages in a merger or other business combination such that the holders of voting securities of the Company immediately prior\nto the transaction do not own a majority of the voting power of securities of the resulting entity.\n3\n(c) In the event that the Company has entered into (or amended, modified or waived) or enters into (or amends, modifies or waives)\na confidentiality or “standstill” agreement or similar arrangement with any person in connection with a possible transaction involving a\nCombination that, either as an initial matter or by virtue of such amendment, modification or waiver, (i) contains any “standstill”\nprovision(s) that are, in any respect, materially more favorable to or materially less restrictive of the other party to such agreement than\nthe provision(s) of this Agreement are with respect to you (provided, however, that for the avoidance of doubt any “standstill” restriction\nwith a term shorter than the “standstill” term of this Agreement shall be deemed to be so materially more favorable and materially less\nrestrictive) or (ii) does not include any “standstill” provisions, then this Section 3 of this Agreement shall automatically be deemed to be\namended to conform the provision(s) of this Agreement with such more favorable or less restrictive provision(s) (or, if such\nconfidentiality agreement does not include any “standstill” provisions, to remove the restrictions imposed by this Section 3 of this\nAgreement in their entirety) and the Company shall promptly provide you with written notice of such development including a copy of\nsuch “standstill” provision(s) (which need not identify such other party) or notify you of the absence of any “standstill” provisions in\nsuch agreement, as the case may be; provided, however, that you may, by written notification, reject any such change and elect to retain\nsome or all of the pre-existing “standstill” provisions applicable to you.\n4. No Representations or Warranties.\nYou understand and agree that neither the Company nor any of its Representatives makes any representation or warranty, express or implied,\non which you or your Representatives may rely, as to the accuracy or completeness of the Evaluation Material for your or their purposes and that\nonly those representations and warranties made by us in writing in a subsequent definitive agreement with you related to a Transaction, if any, shall\nhave any legal effect.\n5. Equitable Relief.\nEach party, without prejudice to any rights at law that it may otherwise have, shall be entitled to seek equitable relief, including, without\nlimitation, injunction and specific performance, in the event of any breach of the provisions of this Agreement by the other party. Each party agrees\nthat it will not oppose the granting of such relief on the basis that the other party has an adequate remedy at law.\n6. No Obligation.\nIt is understood and agreed that no contract or agreement providing for any transaction shall be deemed to exist among any of the parties\nhereto unless and until a definitive agreement concerning a transaction has been executed by and delivered to all parties hereto. It is further agreed\nthat, unless and until a definitive agreement between the parties concerning a transaction is executed and delivered, neither party shall have any legal\nobligation of any kind whatsoever with respect to such transaction by virtue of this Agreement or any other written or oral expression with respect to\nsuch transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term\n“definitive agreement between the parties concerning a transaction” does not include an executed memorandum of understanding, letter of intent or\nother preliminary agreement.\n7. Compliance with Law.\nYou hereby confirm that you are aware and that your Representatives have been advised that the United States securities laws prohibit any\nperson who has material non-public information about a company from purchasing or selling securities of such company or from communicating\nsuch information to any other person under circumstances in which it is reasonably foreseeable that such person may purchase or sell such securities.\n4\n8. Miscellaneous.\n(a) Unless terminated earlier pursuant to the terms hereof, each party’s obligations under this Agreement expire two years from the date\nhereof; provided, however, that, notwithstanding anything to the contrary in this Agreement, if either party decides not to proceed with a\npossible Transaction, your obligations hereunder to keep confidential and not to use (and to cause your Representatives to keep confidential\nand not to use) Evaluation Material shall expire three years from the date hereof.\n(b) It is agreed that no failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver thereof\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or\nprivilege.\n(c) The term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any\ncorporation, company, firm, group, limited liability company, partnership, trust, joint venture, governmental entity or individual.\n(d) This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Delaware without regard to\nany conflict of laws principles.\n(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior\nagreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof. In furtherance and not in\nlimitation of the preceding sentence, no subsequent acceptance of any license agreement, terms of use or other similar provisions required for\naccess to any electronic data room shall be deemed to modify any of the provisions of this Agreement. This Agreement shall be binding upon\nand inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any assignment of this Agreement by any\nparty, except to an affiliate or by operation of law, without the prior written consent of the other party shall be void and shall constitute a\nbreach of this Agreement.\n(f) If any part or provision of this Agreement is held to be illegal or unenforceable, the validity of the remaining parts or provisions shall\nnot be affected and the provision held illegal or unenforceable will be construed in a manner to allow enforceability and to effect the intent of\nthe parties as nearly as possible.\n(g) This Agreement may only be amended by a separate writing signed by the Company and you expressly amending this Agreement.\nAny provision of this Agreement may be waived by the party entitled to the benefit thereof, if in writing and signed by the party entitled to the\nbenefit thereof.\n(h) This Agreement may be executed in two counterparts, each of which shall be deemed to be an original, but all of which shall\nconstitute one and the same document. Counterparts may be exchanged by facsimile transmission or e-mail of scanned signatures, and such\nelectronically transmitted counterparts shall have the full force and effect of original signatures.\n*\n*\n*\n5\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this Agreement, whereupon this Agreement\nwill constitute our agreement with respect to the subject matter hereof.\nVery truly yours,\nTEKTRONIX, INC.\nBy:\n/s/ JAMES F. DALTON\nName:\nJames F. Dalton\nTitle:\nSenior Vice President\nCONFIRMED AND AGREED TO:\nDANAHER CORPORATION\nBy:\n/s/ JONATHAN SCHWARZ\nName:\nJonathan Schwarz\nTitle:\nDirector, Corporate Development\nDated: 9/3/07\n6	EX-99.(D)(2) 11 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nSTRICTLY CONFIDENTIAL\nSeptember 3, 2007\nDanaher Corporation\n2099 Pennsylvania Avenue, NW\n12th Floor\nWashington, D.C. 20006\nAttention: Jonathan Schwarz\nLadies and Gentlemen:\nYou have requested information from Tektronix, Inc. (the “Company”) in connection with your consideration of a possible transaction\nregarding the Company (a “Transaction”). The Company may in its sole discretion from time to time furnish or otherwise make available to you\ncertain information about its business in consideration for your agreement to abide by the confidentiality and other terms of this letter agreement\n(this “Agreement”).\n1. Confidentiality.\n(a) You agree to keep confidential and to use only for the purpose of evaluating a possible Transaction between us all non-public\ninformation concerning the Company that the Company or its Representatives (as hereinafter defined) furnishes or otherwise provides to\nyou or your Representatives in the course of your investigation and whether in oral, written or electronic form, together with any reports,\nanalyses, compilations, forecasts, memoranda, notes, studies and any other written or electronic materials prepared by you or your\nRepresentatives that contain such information (collectively, the “Evaluation Material”); provided, however, that (i) any Evaluation\nMaterial may be disclosed to officers, directors, employees, accountants, legal counsel, investment bankers, commercial banks and other\nfunding sources, consultants, and other representatives (such persons being generally referred to herein as “Representatives”) of yours\nwho need to know such information for the purpose of evaluating a Transaction between us so long as you cause your Representatives to\ntreat the Evaluation Material in a confidential manner and in accordance with the terms hereof, (ii) any disclosure of the Evaluation\nMaterial may be made to which the Company expressly consents in writing and (iii) any disclosure of the Evaluation Material may be\nmade as outlined in Section 1(d) below. Notwithstanding the above, the term “Evaluation Material” does not include information that\n(i) was or becomes available to you on a non-confidential basis from a source other than the Company or its Representatives, provided\nthat, after making reasonable inquiry, you do not know such other source to be bound by a confidentiality obligation to the Company\nwith respect to such information, (ii) was or becomes available to the public (other than as a result of a breach by you or your\nRepresentatives of this Agreement), (iii) is already in your or your Representatives’ possession at the time of its disclosure or (iv) is\nindependently developed by you without reference to any Evaluation Material. You agree to treat (and shall cause your Representatives\nto treat) the Evaluation Material with at least the degree of care that you treat similar materials of your own, or a higher standard of care\nif reasonable under the circumstances.\n(b) Each of the parties hereto agrees that neither it nor any of its Representatives will, without the prior written consent of the other,\ndirectly or indirectly, (i) disclose to any other person (other than its Representatives) the fact that discussions or negotiations may take\nplace, are taking place or have taken place concerning a possible Transaction or any of the terms or other facts relating thereto, including\nthe status thereof, (ii) disclose to any other person (other than its Representatives) the existence or the terms of this Agreement, or\n(iii) disclose to any other person (other than its Representatives) that you or\n1\nyour Representatives have received or produced any Evaluation Material; provided, however, that any disclosure prohibited by this\nparagraph may be made to the extent the disclosing party has received the advice of its outside counsel that such disclosure is required to\nbe made by it in order to avoid violating any federal or state law or rules or regulations of a national securities exchange or self-\nregulatory organization to which you are subject; and, provided further, that the disclosing party will notify the other party prior to\nmaking any such disclosure in accordance with the procedures outlined in section (d) below and will otherwise act in accordance with\nsection (d) below (mutatis mutandis where the Company is the disclosing party).\n(c) It is understood that all requests for information, facility tours or management meetings and discussions or questions regarding\nprocedures will be submitted or directed to Sam Britton or Lev Finkelstein at Goldman, Sachs & Co. or such other persons designated\nand notified to you in writing from time to time by the Company (the “Company Designees”). It is understood that Goldman, Sachs &\nCo. will arrange for appropriate contacts for due diligence purposes, which contacts will be permitted hereunder.\n(d) In the event that you or any of your Representatives are requested to disclose any Evaluation Material in connection with any\njudicial or administrative proceedings (by oral questions, interrogatories, requests for information or documents, subpoena, Civil\nInvestigation Demand or similar process) or on advice of outside counsel, you will provide the Company with prompt written notice of\nsuch requirement(s) in advance of such disclosure where possible. You also agree, to the extent legally permissible and if possible, (i) to\nprovide the Company with a list of any Evaluation Material you or any of your Representatives intend to disclose (and, if applicable, the\ntext of the disclosure language itself) in advance of any such disclosure, and (ii) to cooperate with the Company to the extent it may seek\nto limit such disclosure, including, if requested, taking reasonable steps (at the Company’s expense) to resist or avoid any such\ndisclosure. If you have not provided the Company with advance notice of any such disclosure because the provision of such advance\nnotice was not possible, you agree, to the extent legally permissible, to provide the Company with prompt written notice of such\ndisclosure after such disclosure is made, including a list of any Evaluation Material you or any of your Representatives disclosed (and, if\napplicable, the text of the disclosure language itself). Regardless of whether or not such advance notice was possible, you or your\nRepresentatives, as applicable, shall disclose only that portion of the Evaluation Material that you are advised is legally required to be\ndisclosed by outside counsel and shall use commercially reasonable efforts to obtain reliable assurances that confidential treatment will\nbe accorded to any Evaluation Material that you or your Representatives are legally required to disclose after complying with the\nprovisions of this paragraph.\n(e) In the event that either party in its sole discretion determines that it does not wish to proceed with a possible Transaction, upon\nthe request of the Company, you will (and you will cause your Representatives to) promptly deliver to the Company or, at your option,\ndestroy all Evaluation Material, including, without limitation, expunging to the extent reasonably practicable all Evaluation Material\nfrom any computer, word processor or other device in your possession or in the possession of your Representatives, and you shall certify\nto the Company that you and your Representatives have done so; provided, however, that you and your Representatives need only use\nreasonable efforts to delete Evaluation Material from back-up, archival electronic storage or need not delete Evaluation Material from\nback-up, archival electronic storage, so long as only your or your Representatives” information technology personnel responsible for the\nadministration of such storage are able to access such Evaluation Material; provided, further, that if you or your Representatives or any\nsuch information technology personnel discover such Evaluation Material in such storage, you shall (or shall cause your Representatives\nor such information technology personnel to) promptly delete it. Notwithstanding the delivery or destruction of the Evaluation Material\nrequired by this paragraph, any and all duties and obligations existing under this Agreement shall remain in full force and effect during\nthe term of this Agreement.\n2. Non-Solicitation of Senior Employees.\nFor a period of 12 months from the date hereof, each of the parties agrees that it will not solicit for hire any senior employees of the other party\nor any of its subsidiaries with whom it has first come into contact in connection with the Transaction or evaluation thereof; provided, however, that\ngeneral solicitation of employment through general advertisements or other means not specifically targeted to employees of yours or the Company,\nas applicable, shall not be deemed a violation of such party’s obligation not to solicit; provided, further, that the foregoing shall not apply to (i) any\nperson who approached you without any solicitation or inducement by you or on your behalf or (ii) any person not employed by the Company or any\nof its subsidiaries at the time of the solicitation (mutatis mutandis where the Company is the approached or soliciting party).\n3. Standstill.\n(a) Subject to Section 3(b) of this Agreement, for a period of nine months from the date of this Agreement (the “Standstill Period”)\nyou will not (and you will not request or encourage your affiliates or Representatives to on your behalf) without the prior written\npermission of the Company: (i) acquire or offer, seek, propose or agree to acquire, beneficial ownership of more than 1% of the voting\nsecurities of the Company or any consolidated assets of the Company, not counting any purchases of assets in the ordinary course,\n(ii) propose to enter into, directly or indirectly, any merger, consolidation, recapitalization, business combination or other similar\ntransaction involving the Company, (iii) make, or in any way participate in, any “solicitation” of “proxies” (as such terms are used in the\nproxy rules of the Securities and Exchange Commission) or consents to vote or seek to advise or influence any person with respect to the\nvoting of any voting securities of the Company, (iv) form, join or in any way participate in a “group” (within the meaning of\nSection 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of the\nCompany, (v) otherwise act, alone or in concert with others, to seek to control or influence the management or policies of the Company\nor (vi) take any action which would reasonably be expected to force the Company to make a public announcement about this Agreement\nor a possible Transaction; provided, however, that nothing contained in this Agreement shall prevent you from making a confidential\nproposal to the Board of Directors of the Company, without public disclosure by you, for a tender offer, exchange offer, merger, other\nbusiness combination, other extraordinary transaction or Combination (as defined in Section 3(b) of this Agreement) involving the\nCompany or for an acquisition of all or a material portion of the common stock or the consolidated assets of the Company, provided that\nyou are specifically invited in writing in advance to do so by the Company’s Board of Directors.\n(b) If at any time during the Standstill Period (i) the Company enters into a definitive agreement providing for a Combination or the\nCompany redeems any rights under, or modifies or agrees in writing to modify, a shareholder rights plan to facilitate any Combination,\n(ii) a tender or exchange offer that if consummated would constitute a Combination is made for securities of the Company, (iii) the\nCompany engages in a formal, public “auction” process that includes consideration of one or more transactions that if consummated\nwould constitute a Combination or (iv) a person or “group” (within the meaning of Section 13(d) under the Exchange Act) enters into an\nagreement or commences a proxy solicitation by which the person or “group” would, if successful, elect or acquire the ability to elect a\nmajority of the Board of Directors of the Company, then the restrictions set forth in this Section 3 of this Agreement shall terminate and\nall other provisions of this Agreement shall continue to be in full force and effect in accordance with the terms hereof. A “Combination”\nshall mean a transaction in which (i) a person or “group” (within the meaning of Section 13(d) under the Exchange Act) acquires,\ndirectly or indirectly, securities representing a majority of the voting power of the outstanding securities of the Company or properties or\nassets constituting a majority of the consolidated assets of the Company and its subsidiaries or (ii) in any case not covered by (i), the\nCompany engages in a merger or other business combination such that the holders of voting securities of the Company immediately prior\nto the transaction do not own a majority of the voting power of securities of the resulting entity.\n3\n(c) In the event that the Company has entered into (or amended, modified or waived) or enters into (or amends, modifies or waives)\na confidentiality or “standstill” agreement or similar arrangement with any person in connection with a possible transaction involving a\nCombination that, either as an initial matter or by virtue of such amendment, modification or waiver, (i) contains any “standstill”\nprovision(s) that are, in any respect, materially more favorable to or materially less restrictive of the other party to such agreement than\nthe provision(s) of this Agreement are with respect to you (provided, however, that for the avoidance of doubt any “standstill” restriction\nwith a term shorter than the “standstill” term of this Agreement shall be deemed to be so materially more favorable and materially less\nrestrictive) or (ii) does not include any “standstill” provisions, then this Section 3 of this Agreement shall automatically be deemed to be\namended to conform the provision(s) of this Agreement with such more favorable or less restrictive provision(s) (or, if such\nconfidentiality agreement does not include any “standstill” provisions, to remove the restrictions imposed by this Section 3 of this\nAgreement in their entirety) and the Company shall promptly provide you with written notice of such development including a copy of\nsuch “standstill” provision(s) (which need not identify such other party) or notify you of the absence of any “standstill” provisions in\nsuch agreement, as the case may be; provided, however, that you may, by written notification, reject any such change and elect to retain\nsome or all of the pre-existing “standstill” provisions applicable to you.\n4. No Representations or Warranties.\nYou understand and agree that neither the Company nor any of its Representatives makes any representation or warranty, express or implied,\non which you or your Representatives may rely, as to the accuracy or completeness of the Evaluation Material for your or their purposes and that\nonly those representations and warranties made by us in writing in a subsequent definitive agreement with you related to a Transaction, if any, shall\nhave any legal effect.\n5. Equitable Relief.\nEach party, without prejudice to any rights at law that it may otherwise have, shall be entitled to seek equitable relief, including, without\nlimitation, injunction and specific performance, in the event of any breach of the provisions of this Agreement by the other party. Each party agrees\nthat it will not oppose the granting of such relief on the basis that the other party has an adequate remedy at law.\n6. No Obligation.\nIt is understood and agreed that no contract or agreement providing for any transaction shall be deemed to exist among any of the parties\nhereto unless and until a definitive agreement concerning a transaction has been executed by and delivered to all parties hereto. It is further agreed\nthat, unless and until a definitive agreement between the parties concerning a transaction is executed and delivered, neither party shall have any legal\nobligation of any kind whatsoever with respect to such transaction by virtue of this Agreement or any other written or oral expression with respect to\nsuch transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term\n“definitive agreement between the parties concerning a transaction” does not include an executed memorandum of understanding, letter of intent or\nother preliminary agreement.\n7. Compliance with Law.\nYou hereby confirm that you are aware and that your Representatives have been advised that the United States securities laws prohibit any\nperson who has material non-public information about a company from purchasing or selling securities of such company or from communicating\nsuch information to any other person under circumstances in which it is reasonably foreseeable that such person may purchase or sell such securities.\n4\n8. Miscellaneous.\n(a) Unless terminated earlier pursuant to the terms hereof, each party’s obligations under this Agreement expire two years from the date\nhereof; provided, however, that, notwithstanding anything to the contrary in this Agreement, if either party decides not to proceed with a\npossible Transaction, your obligations hereunder to keep confidential and not to use (and to cause your Representatives to keep confidential\nand not to use) Evaluation Material shall expire three years from the date hereof.\n(b) It is agreed that no failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver thereof\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or\nprivilege.\n(c) The term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any\ncorporation, company, firm, group, limited liability company, partnership, trust, joint venture, governmental entity or individual.\n(d) This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Delaware without regard to\nany conflict of laws principles.\n(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior\nagreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof. In furtherance and not in\nlimitation of the preceding sentence, no subsequent acceptance of any license agreement, terms of use or other similar provisions required for\naccess to any electronic data room shall be deemed to modify any of the provisions of this Agreement. This Agreement shall be binding upon\nand inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any assignment of this Agreement by any\nparty, except to an affiliate or by operation of law, without the prior written consent of the other party shall be void and shall constitute a\nbreach of this Agreement.\n(f) If any part or provision of this Agreement is held to be illegal or unenforceable, the validity of the remaining parts or provisions shall\nnot be affected and the provision held illegal or unenforceable will be construed in a manner to allow enforceability and to effect the intent of\nthe parties as nearly as possible.\n(g) This Agreement may only be amended by a separate writing signed by the Company and you expressly amending this Agreement.\nAny provision of this Agreement may be waived by the party entitled to the benefit thereof, if in writing and signed by the party entitled to the\nbenefit thereof.\n(h) This Agreement may be executed in two counterparts, each of which shall be deemed to be an original, but all of which shall\nconstitute one and the same document. Counterparts may be exchanged by facsimile transmission or e-mail of scanned signatures, and such\nelectronically transmitted counterparts shall have the full force and effect of original signatures.\n* * *\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this Agreement, whereupon this Agreement will constitute our agreement with respect to the subject matter hereof. CONFIRMED AND AGREED TO:\nDANAHER CORPORATION\nBy: /s/  JONATHAN SCHWARZ\nName: Jonathan Schwarz\nTitle: Director, Corporate Development\nDated: 9/3/07\nVery truly yours,\nTEKTRONIX, INC.\nBy: /s/  JAMES F. DALTON\nName: James F. Dalton\nTitle: Senior Vice President	EX-99.(D)(2) 11 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nSTRICTLY CONFIDENTIAL\nSeptember 3, 2007\nDanaher Corporation\n2099 Pennsylvania Avenue, NW\n12th Floor\nWashington, D.C. 20006\nAttention: Jonathan Schwarz\nLadies and Gentlemen:\nYou have requested information from Tektronix, Inc. (the "Company") in connection with your consideration of a possible transaction\nregarding the Company (a "Transaction"). The Company may in its sole discretion from time to time furnish or otherwise make available to you\ncertain information about its business in consideration for your agreement to abide by the confidentiality and other terms of this letter agreement\n(this "Agreement").\n1. Confidentiality.\n(a) You agree to keep confidential and to use only for the purpose of evaluating a possible Transaction between us all non-public\ninformation concerning the Company that the Company or its Representatives (as hereinafter defined) furnishes or otherwise provides to\nyou or your Representatives in the course of your investigation and whether in oral, written or electronic form, together with any reports,\nanalyses, compilations, forecasts, memoranda, notes, studies and any other written or electronic materials prepared by you or your\nRepresentatives that contain such information (collectively, the "Evaluation Material"); provided, however, that (i) any Evaluation\nMaterial may be disclosed to officers, directors, employees, accountants, legal counsel, investment bankers, commercial banks and other\nfunding sources, consultants, and other representatives (such persons being generally referred to herein as "Representatives") of yours\nwho\nneed\nto know such information for the purpose of evaluating a Transaction between us so long as you cause your Representatives\nto\ntreat the Evaluation Material in a confidential manner and in accordance with the terms hereof, (ii) any disclosure of the Evaluation\nMaterial may be made to which the Company expressly consents in writing and (iii) any disclosure of the Evaluation Material may be\nmade as outlined in Section 1(d) below. Notwithstanding the above, the term "Evaluation Material" does not include information that\n(i) was or becomes available to you on a non-confidential basis from a source other than the Company or its Representatives, provided\nthat, after making reasonable inquiry, you do not know such other source to be bound by a confidentiality obligation to the Company\nwith respect to such information, (ii) was or becomes available to the public (other than as a result of a breach by you or your\nRepresentatives of this Agreement), (iii) is already in your or your Representatives' possession at the time of its disclosure or (iv) is\nindependently developed by you without reference to any Evaluation Material. You agree to treat (and shall cause your Representatives\nto treat) the Evaluation Material with at least the degree of care that you treat similar materials of your own, or a higher standard of care\nif reasonable under the circumstances.\n(b) Each of the parties hereto agrees that neither it nor any of its Representatives will, without the prior written consent of the other,\ndirectly or indirectly, (i) disclose to any other person (other than its Representatives) the fact that discussions or negotiations may take\nplace, are taking place or have taken place concerning a possible Transaction or any of the terms or other facts relating thereto, including\nthe status thereof, (ii) disclose to any other person (other than its Representatives) the existence or the terms of this Agreement, or\n(iii) disclose to any other person (other than its Representatives) that you or\n1\nyour Representatives have received or produced any Evaluation Material; provided, however, that any disclosure prohibited by this\nparagraph may be made to the extent the disclosing party has received the advice of its outside counsel that such disclosure is required to\nbe made by it in order to avoid violating any federal or state law or rules or regulations of a national securities exchange or self-\nregulatory organization to which you are subject; and, provided further, that the disclosing party will notify the other party prior to\nmaking any such disclosure in accordance with the procedures outlined in section (d) below and will otherwise act in accordance with\nsection (d) below (mutatis mutandis where the Company is the disclosing party).\n(c) It is understood that all requests for information, facility tours or management meetings and discussions or questions regarding\nprocedures will be submitted or directed to Sam Britton or Lev Finkelstein at Goldman, Sachs & Co. or such other persons designated\nand notified to you in writing from time to time by the Company (the "Company Designees"). It is understood that Goldman, Sachs\n&\nCo. will arrange for appropriate contacts for due diligence purposes, which contacts will be permitted hereunder.\n(d) In the event that you or any of your Representatives are requested to disclose any Evaluation Material in connection with any\njudicial or administrative proceedings (by oral questions, interrogatories, requests for information or documents, subpoena, Civil\nInvestigation Demand or similar process) or on advice of outside counsel, you will provide the Company with prompt written notice of\nsuch requirement(s) in advance of such disclosure where possible You also agree, to the extent legally permissible and if possible, (i) to\nprovide the Company with a list of any Evaluation Material you or any of your Representatives intend to disclose (and, if applicable, the\ntext of the disclosure language itself) in advance of any such disclosure, and (ii) to cooperate with the Company to the extent it may seek\nto limit such disclosure, including, if requested, taking reasonable steps (at the Company's expense) to resist or avoid any such\ndisclosure. If you have not provided the Company with advance notice of any such disclosure because the provision of such advance\nnotice was not possible, you agree, to the extent legally permissible, to provide the Company with prompt written notice of such\ndisclosure after such disclosure is made, including a list of any Evaluation Material you or any of your Representatives disclosed (and, if\napplicable, the text of the disclosure language itself). Regardless of whether or not such advance notice was possible, you or your\nRepresentatives, as applicable, shall disclose only that portion of the Evaluation Material that you are advised is legally required to be\ndisclosed by outside counsel and shall use commercially reasonable efforts to obtain reliable assurances that confidential treatment will\nbe accorded to any Evaluation Material that you or your Representatives are legally required to disclose after complying with the\nprovisions of this paragraph.\n(e) In the event that either party in its sole discretion determines that it does not wish to proceed with a possible Transaction, upon\nthe request of the Company, you will (and you will cause your Representatives to) promptly deliver to the Company or, at your option,\ndestroy all Evaluation Material, including, without limitation expunging to the extent reasonably practicable all Evaluation Material\nfrom any computer, word processor or other device in your possession or in the possession of your Representatives, and you shall certify\nto the Company that you and your Representatives have done so; provided, however, that you and your Representatives need only use\nreasonable efforts to delete Evaluation Material from back-up, archival electronic storage or need not delete Evaluation Material from\nback-up, archival electronic storage, so long as only your or your Representatives' information technology personne responsible for the\nadministration of such storage are able to access such Evaluation Material; provided, further, that if you or your Representatives or any\nsuch information technology personnel discover such Evaluation Material in such storage, you shall (or shall cause your Representatives\nor such information technology personnel to) promptly delete it. Notwithstanding the delivery or destruction of the Evaluation Material\nrequired by this paragraph, any and all duties and obligations existing under this Agreement shall remain in full force and effect during\nthe term of this Agreement.\n2\n2. Non-Solicitation of Senior Employees.\nFor a period of 12 months from the date hereof, each of the parties agrees that it will not solicit for hire any senior employees of the other party\nor any of its subsidiaries with whom it has first come into contact in connection with the Transaction or evaluation thereof; provided, however, that\ngeneral solicitation of employment through general advertisements or other means not specifically targeted to employees of yours or the Company,\nas\napplicable, shall not be deemed a violation of such party's obligation not to solicit; provided, further, that the foregoing shall not apply to (i) any\nperson who approached you without any solicitation or inducement by you or on your behalf or (ii) any person not employed by the Company or any\nof its subsidiaries at the time of the solicitation (mutatis mutandis where the Company is the approached or soliciting party).\n3. Standstill.\n(a) Subject to Section 3(b) of this Agreement, for a period of nine months from the date of this Agreement (the "Standstill Period")\nyou will not (and you will not request or encourage your affiliates or Representatives to on your behalf) without the prior written\npermission of the Company: (i) acquire or offer, seek, propose or agree to acquire, beneficial ownership of more than 1% of the voting\nsecurities of the Company or any consolidated assets of the Company, not counting any purchases of assets in the ordinary course,\n(ii) propose to enter into, directly or indirectly, any merger, consolidation, recapitalization, business combination or other similar\ntransaction involving the Company, (iii) make, or in any way participate in, any "solicitation" of "proxies" (as such terms are used in the\nproxy rules of the Securities and Exchange Commission) or consents to vote or seek to advise or influence any person with respect\nto\nthe\nvoting of any voting securities of the Company, (iv) form, join or in any way participate in a "group" (within the meaning of\nSection 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) with respect to any voting securities of the\nCompany, (v) otherwise act, alone or in concert with others, to seek to control or influence the management or policies of the Company\nor (vi) take any action which would reasonably be expected to force the Company to make a public announcement about this Agreement\nor a possible Transaction; provided, however, that nothing contained in this Agreement shall prevent you from making a confidential\nproposal to the Board of Directors of the Company, without public disclosure by you, for a tender offer, exchange offer, merger, other\nbusiness combination, other extraordinary transaction or Combination (as defined in Section 3(b) of this Agreement) involving the\nCompany or for an acquisition of all or a material portion of the common stock or the consolidated assets of the Company, provided\nthat\nyou are specifically invited in writing in advance to do so by the Company's Board of Directors.\n(b) If at any time during the Standstill Period (i) the Company enters into a definitive agreement providing for a Combination or the\nCompany redeems any rights under, or modifies or agrees in writing to modify, a shareholder rights plan to facilitate any Combination,\n(ii) a tender or exchange offer that if consummated would constitute a Combination is made for securities of the Company, (iii) the\nCompany engages in a formal, public "auction" process that includes consideration of one or more transactions that if consummated\nwould constitute a Combination or (iv) a person or "group" (within the meaning of Section 13(d) under the Exchange Act) enters into an\nagreement or commences a proxy solicitation by which the person or "group" would, if successful, elect or acquire the ability to elect a\nmajority of the Board of Directors of the Company, then the restrictions set forth in this Section 3 of this Agreement shall terminate and\nall other provisions of this Agreement shall continue to be in full force and effect in accordance with the terms hereof. A "Combination"\nshall mean a transaction in which (i) a person or "group" (within the meaning of Section 13(d) under the Exchange Act) acquires,\ndirectly or indirectly, securities representing a majority of the voting power of the outstanding securities of the Company or properties or\nassets constituting a majority of the consolidated assets of the Company and its subsidiaries or (ii) in any case not covered by (i), the\nCompany engages in a merger or other business combination such that the holders of voting securities of the Company immediately prior\nto the transaction do not own a majority of the voting power of securities of the resulting entity.\n3\n(c) In the event that the Company has entered into (or amended, modified or waived) or enters into (or amends, modifies or waives)\na confidentiality or "standstill" agreement or similar arrangement with any person in connection with a possible transaction involving a\nCombination that, either as an initial matter or by virtue of such amendment, modification or waiver, (i) contains any "standstill"\nprovision(s) that are, in any respect, materially more favorable to or materially less restrictive of the other party to such agreement than\nthe provision(s) of this Agreement are with respect to you (provided, however, that for the avoidance of doubt any "standstill" restriction\nwith a term shorter than the "standstill" term of this Agreement shall be deemed to be so materially more favorable and materially less\nrestrictive) or (ii) does not include any "standstill" provisions, then this Section 3 of this Agreement shall automatically be deemed to be\namended to conform the provision(s) of this Agreement with such more favorable or less restrictive provision(s) (or, if such\nconfidentiality agreement does not include any "standstill" provisions, to remove the restrictions imposed by this Section 3 of this\nAgreement in their entirety) and the Company shall promptly provide you with written notice of such development including a copy of\nsuch "standstill" provision(s) (which need not identify such other party) or notify you of the absence of any "'standstill" provisions in\nsuch agreement, as the case may be; provided, however, that you may, by written notification, reject any such change and elect to retain\nsome or all of the pre-existing "'standstill" provisions applicable to you.\n4. No Representations or Warranties.\nYou understand and agree that neither the Company nor any of its Representatives makes any representation or warranty, express or implied,\non which you or your Representatives may rely, as to the accuracy or completeness of the Evaluation Material for your or their purposes and that\nonly those representations and warranties made by us in writing in a subsequent definitive agreement with you related to a Transaction, if any, shall\nhave any legal effect.\n5. Equitable Relief.\nEach party, without prejudice to any rights at law that it may otherwise have, shall be entitled to seek equitable relief, including, without\nlimitation, injunction and specific performance, in the event of any breach of the provisions of this Agreement by the other party. Each party agrees\nthat it will not oppose the granting of such relief on the basis that the other party has an adequate remedy at law.\n6. No Obligation.\nIt is understood and agreed that no contract or agreement providing for any transaction shall be deemed to exist among any of the parties\nhereto unless and until a definitive agreement concerning a transaction has been executed by and delivered to all parties hereto. It is further agreed\nthat, unless and until a definitive agreement between the parties concerning a transaction is executed and delivered, neither party shall have any legal\nobligation of any kind whatsoever with respect to such transaction by virtue of this Agreement or any other written or oral expression with respect to\nsuch transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term\n"definitive agreement between the parties concerning a transaction" does not include an executed memorandum of understanding, letter of intent or\nother preliminary agreement.\n7. Compliance with Law.\nYou hereby confirm that you are aware and that your Representatives have been advised that the United States securities laws prohibit any\nperson who has material non-public information about a company from purchasing or selling securities of such company or from communicating\nsuch information to any other person under circumstances in which it is reasonably foreseeable that such person may purchase or sell such securities.\n4\n8. Miscellaneous.\n(a) Unless terminated earlier pursuant to the terms hereof, each party's obligations under this Agreement expire two years from the date\nhereof; provided, however, that, notwithstanding anything to the contrary in this Agreement, if either party decides not to proceed with a\npossible Transaction, your obligations hereunder to keep confidential and not to use (and to cause your Representatives to keep confidential\nand not to use) Evaluation Material shall expire three years from the date hereof.\n(b) It is agreed that no failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver thereof\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or\nprivilege.\n(c)\nThe\nterm "person" as used in this Agreement shall be broadly interpreted to include, without limitation, the media and\nany\ncorporation, company, firm, group, limited liability company, partnership, trust, joint venture, governmental entity or individual.\n(d) This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Delaware without regard to\nany conflict of laws principles.\n(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior\nagreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof. In furtherance and not in\nlimitation of the preceding sentence, no subsequent acceptance of any license agreement, terms of use or other similar provisions required for\naccess to any electronic data room shall be deemed to modify any of the provisions of this Agreement. This Agreement shall be binding upon\nand inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any assignment of this Agreement by any\nparty, except to an affiliate or by operation of law, without the prior written consent of the other party shall be void and shall constitute a\nbreach of this Agreement.\n(f) If any part or provision of this Agreement is held to be illegal or unenforceable, the validity of the remaining parts or provisions shall\nnot be affected and the provision held illegal or unenforceable will be construed in a manner to allow enforceability and to effect the intent of\nthe parties as nearly as possible.\n(g) This Agreement may only be amended by a separate writing signed by the Company and you expressly amending this Agreement.\nAny provision of this Agreement may be waived by the party entitled to the benefit thereof, if in writing and signed by the party entitled to the\nbenefit thereof.\n(h) This Agreement may be executed in two counterparts, each of which shall be deemed to be an original, but all of which shall\nconstitute one and the same document. Counterparts may be exchanged by facsimile transmission or e-mail of scanned signatures, and such\nelectronically transmitted counterparts shall have the full force and effect of original signatures.\n5\nIf you are in agreement with the foregoing, please SO indicate by signing and returning one copy of this Agreement, whereupon this Agreement\nwill constitute our agreement with respect to the subject matter hereof.\nVery truly yours,\nTEKTRONIX, INC.\nBy:\n/s/ JAMES F. DALTON\nName:\nJames F. Dalton\nTitle:\nSenior Vice President\nCONFIRMED AND AGREED TO:\nDANAHER CORPORATION\nBy:\n/s/ JONATHAN SCHWARZ\nName:\nJonathan Schwarz\nTitle:\nDirector, Corporate Development\nDated: 9/3/07\n6	EX-99.(D)(2) 11 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nSTRICTLY CONFIDENTIAL\nSeptember 3, 2007\nDanaher Corporation\n2099 Pennsylvania Avenue, NW\n12th Floor\nWashington, D.C . 20006\nAttention: Jonathan Schwarz\nLadies and Gentlemen:\nYou have requested information from Tektronix, Inc. (the “Company”) in connection with your consideration of a possible transaction\nregarding the Company (a “Transaction”). The Company may in its sole discretion from time to time furnish or otherwise make available to you\ncertain information about its business in consideration for your agreement to abide by the confidentiality and other terms of this letter agreement\n(this “Agreement”).\n1. Confidentiality.\n(a) You agree to keep confidential and to use only for the purpose of evaluating a possible Transaction between us all non-public\ninformation concerning the Company that the Company or its Representatives (as hereinafter defined) furnishes or otherwise provides to\nyou or your Representatives in the course of your investigation and whether in oral, written or electronic form, together with any reports,\nanalyses, compilations, forecasts, memoranda, notes, studies and any other written or electronic materials prepared by you or your\nRepresentatives that contain such information (collectively, the “Evaluation Material”); provided, however, that (i) any Evaluation\nMaterial may be disclosed to officers, directors, employees, accountants, legal counsel, investment bankers, commercial banks and other\nfunding sources, consultants, and other representatives (such persons being generally referred to herein as “Representatives”) of yours\nwho need to know such information for the purpose of evaluating a Transaction between us so long as you cause your Representatives to\ntreat the Evaluation Material in a confidential manner and in accordance with the terms hereof, (ii) any disclosure of the Evaluation\nMaterial may be made to which the Company expressly consents in writing and (iii) any disclosure of the Evaluation Material may be\nmade as outlined in Section 1(d) below. Notwithstanding the above, the term “Evaluation Material” does not include information that\n(i) was or becomes available to you on a non-confidential basis from a source other than the Company or its Representatives, provided\nthat, after making reasonable inquiry, you do not know such other source to be bound by a confidentiality obligation to the Company\nwith respect to such information, (ii) was or becomes available to the public (other than as a result of a breach by you or your\nRepresentatives of this Agreement), (iii) is already in your or your Representatives’ possession at the time of its disclosure or (iv) is\nindependently developed by you without reference to any Evaluation Material. You agree to treat (and shall cause your Representatives\nto treat) the Evaluation Material with at least the degree of care that you treat similar materials of your own, or a higher standard of care\nif reasonable under the circumstances.\n(b) Each of the parties hereto agrees that neither it nor any of its Representatives will, without the prior written consent of the other,\ndirectly or indirectly, (i) disclose to any other person (other than its Representatives) the fact that discussions or negotiations may take\nplace, are taking place or have taken place concerning a possible Transaction or any of the terms or other facts relating thereto, including\nthe status thereof, (ii) disclose to any other person (other than its Representatives) the existence or the terms of this Agreement, or\n(iii) disclose to any other person (other than its Representatives) that you or\n1\nyour Representatives have received or produced any Evaluation Material; provided, however, that any disclosure prohibited by this\nparagraph may be made to the extent the disclosing party has received the advice of its outside counsel that such disclosure is required to\nbe made by it in order to avoid violating any federal or state law or rules or regulations of a national securities exchange or self-\nregulatory organization to which you are subject; and, provided further, that the disclosing party will notify the other party prior to\nmaking any such disclosure in accordance with the procedures outlined in section (d) below and will otherwise act in accordance with\nsection (d) below (mutatis mutandis where the Company is the disclosing party).\n(c) It is understood that all requests for information, facility tours or management meetings and discussions or questions regarding\nprocedures will be submitted or directed to Sam Britton or Lev Finkelstein at Goldman, Sachs & Co. or such other persons designated\nand notified to you in writing from time to time by the Company (the “Company Designees”). It is understood that Goldman, Sachs &\nCo. will arrange for appropriate contacts for due diligence purposes, which contacts will be permitted hereunder.\n(d) In the event that you or any of your Representatives are requested to disclose any Evaluation Material in connection with any\njudicial or administrative proceedings (by oral questions, interrogatories, requests for information or documents, subpoena, Civil\nInvestigation Demand or similar process) or on advice of outside counsel, you will provide the Company with prompt written notice of\nsuch requirement(s) in advance of such disclosure where possible. You also agree, to the extent legally permissible and if possible, (i) to\nprovide the Company with a list of any Evaluation Material you or any of your Representatives intend to disclose (and, if applicable, the\ntext of the disclosure language itself) in advance of any such disclosure, and (ii) to cooperate with the Company to the extent it may seek\nto limit such disclosure, including, if requested, taking reasonable steps (at the Company’s expense) to resist or avoid any such\ndisclosure. If you have not provided the Company with advance notice of any such disclosure because the provision of such advance\nnotice was not possible, you agree, to the extent legally permissible, to provide the Company with prompt written notice of such\ndisclosure after such disclosure is made, including a list of any Evaluation Material you or any of your Representatives disclosed (and, if\napplicable, the text of the disclosure language itself). Regardless of whether or not such advance notice was possible, you or your\nRepresentatives, as applicable, shall disclose only that portion of the Evaluation Material that you are advised is legally required to be\ndisclosed by outside counsel and shall use commercially reasonable efforts to obtain reliable assurances that confidential treatment will\nbe accorded to any Evaluation Material that you or your Representatives are legally required to disclose after complying with the\nprovisions of this paragraph.\n(e) In the event that either party in its sole discretion determines that it does not wish to proceed with a possible Transaction, upon\nthe request of the Company, you will (and you will cause your Representatives to) promptly deliver to the Company or, at your option,\ndestroy all Evaluation Material, including, without limitation, expunging to the extent reasonably practicable all Evaluation Material\nfrom any computer, word processor or other device in your possession or in the possession of your Representatives, and you shall certify\nto the Company that you and your Representatives have done so; provided, however, that you and your Representatives need only use\nreasonable efforts to delete Evaluation Material from back-up, archival electronic storage or need not delete Evaluation Material from\nback-up, archival electronic storage, so long as only your or your Representatives’ information technology personnel responsible for the\nadministration of such storage are able to access such Evaluation Material; provided, further, that if you or your Representatives or any\nsuch information technology personnel discover such Evaluation Material in such storage, you shall (or shall cause your Representatives\nor such information technology personnel to) promptly delete it. Notwithstanding the delivery or destruction of the Evaluation Material\nrequired by this paragraph, any and all duties and obligations existing under this Agreement shall remain in full force and effect during\nthe term of this Agreement.\n2\n2. Non-Solicitation of Senior Employees.\nFor a period of 12 months from the date hereof, each of the parties agrees that it will not solicit for hire any senior employees of the other party\nor any of its subsidiaries with whom it has first come into contact in connection with the Transaction or evaluation thereof; provided, however, that\ngeneral solicitation of employment through general advertisements or other means not specifically targeted to employees of yours or the Company,\nas applicable, shall not be deemed a violation of such party’s obligation not to solicit; provided, further, that the foregoing shall not apply to (i) any\nperson who approached you without any solicitation or inducement by you or on your behalf or (ii) any person not employed by the Company or any\nof its subsidiaries at the time of the solicitation (mutatis mutandis where the Company is the approached or soliciting party).\n3. Standstill.\n(a) Subject to Section 3(b) of this Agreement, for a period of nine months from the date of this Agreement (the “Standstill Period”)\nyou will not (and you will not request or encourage your affiliates or Representatives to on your behalf) without the prior written\npermission of the Company: (i) acquire or offer, seek, propose or agree to acquire, beneficial ownership of more than 1% of the voting\nsecurities of the Company or any consolidated assets of the Company, not counting any purchases of assets in the ordinary course,\n(ii) propose to enter into, directly or indirectly, any merger, consolidation, recapitalization, business combination or other similar\ntransaction involving the Company, (iii) make, or in any way participate in, any “solicitation” of “proxies” (as such terms are used in the\nproxy rules of the Securities and Exchange Commission) or consents to vote or seek to advise or influence any person with respect to the\nvoting of any voting securities of the Company, (iv) form, join or in any way participate in a “group” (within the meaning of\nSection 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) with respect to any voting securities of the\nCompany, (v) otherwise act, alone or in concert with others, to seek to control or influence the management or policies of the Company\nor (vi) take any action which would reasonably be expected to force the Company to make a public announcement about this Agreement\nor a possible Transaction; provided, however, that nothing contained in this Agreement shall prevent you from making a confidential\nproposal to the Board of Directors of the Company, without public disclosure by you, for a tender offer, exchange offer, merger, other\nbusiness combination, other extraordinary transaction or Combination (as defined in Section 3(b) of this Agreement) involving the\nCompany or for an acquisition of all or a material portion of the common stock or the consolidated assets of the Company, provided that\nyou are specifically invited in writing in advance to do so by the Company’s Board of Directors.\n(b) If at any time during the Standstill Period (i) the Company enters into a definitive agreement providing for a Combination or the\nCompany redeems any rights under, or modifies or agrees in writing to modify, a shareholder rights plan to facilitate any Combination,\n(ii) a tender or exchange offer that if consummated would constitute a Combination is made for securities of the Company, (iii) the\nCompany engages in a formal, public “auction” process that includes consideration of one or more transactions that if consummated\nwould constitute a Combination or (iv) a person or “group” (within the meaning of Section 13(d) under the Exchange Act) enters into an\nagreement or commences a proxy solicitation by which the person or “group” would, if successful, elect or acquire the ability to elect a\nmajority of the Board of Directors of the Company, then the restrictions set forth in this Section 3 of this Agreement shall terminate and\nall other provisions of this Agreement shall continue to be in full force and effect in accordance with the terms hereof. A “Combination”\nshall mean a transaction in which (i) a person or “group” (within the meaning of Section 13(d) under the Exchange Act) acquires,\ndirectly or indirectly, securities representing a majority of the voting power of the outstanding securities of the Company or properties or\nassets constituting a majority of the consolidated assets of the Company and its subsidiaries or (ii) in any case not covered by (i), the\nCompany engages in a merger or other business combination such that the holders of voting securities of the Company immediately prior\nto the transaction do not own a majority of the voting power of securities of the resulting entity.\n3\n(c) In the event that the Company has entered into (or amended, modified or waived) or enters into (or amends, modifies or waives)\na confidentiality or “standstill” agreement or similar arrangement with any person in connection with a possible transaction involving a\nCombination that, either as an initial matter or by virtue of such amendment, modification or waiver, (i) contains any “standstill”\nprovision(s) that are, in any respect, materially more favorable to or materially less restrictive of the other party to such agreement than\nthe provision(s) of this Agreement are with respect to you (provided, however, that for the avoidance of doubt any “standstill” restriction\nwith a term shorter than the “standstill” term of this Agreement shall be deemed to be so materially more favorable and materially less\nrestrictive) or (ii) does not include any “standstill” provisions, then this Section 3 of this Agreement shall automatically be deemed to be\namended to conform the provision(s) of this Agreement with such more favorable or less restrictive provision(s) (or, if such\nconfidentiality agreement does not include any “standstill” provisions, to remove the restrictions imposed by this Section 3 of this\nAgreement in their entirety) and the Company shall promptly provide you with written notice of such development including a copy of\nsuch “standstill” provision(s) (which need not identify such other party) or notify you of the absence of any “standstill” provisions in\nsuch agreement, as the case may be; provided, however, that you may, by written notification, reject any such change and elect to retain\nsome or all of the pre-existing “standstill” provisions applicable to you.\n4. No Representations or Warranties.\nYou understand and agree that neither the Company nor any of its Representatives makes any representation or warranty, express or implied,\non which you or your Representatives may rely, as to the accuracy or completeness of the Evaluation Material for your or their purposes and that\nonly those representations and warranties made by us in writing in a subsequent definitive agreement with you related to a Transaction, if any, shall\nhave any legal effect.\n5. Equitable Relief.\nEach party, without prejudice to any rights at law that it may otherwise have, shall be entitled to seek equitable relief, including, without\nlimitation, injunction and specific performance, in the event of any breach of the provisions of this Agreement by the other party. Each party agrees\nthat it will not oppose the granting of such relief on the basis that the other party has an adequate remedy at law.\n6. No Obligation.\nIt is understood and agreed that no contract or agreement providing for any transaction shall be deemed to exist among any of the parties\nhereto unless and until a definitive agreement concerning a transaction has been executed by and delivered to all parties hereto. It is further agreed\nthat, unless and until a definitive agreement between the parties concerning a transaction is executed and delivered, neither party shall have any legal\nobligation of any kind whatsoever with respect to such transaction by virtue of this Agreement or any other written or oral expression with respect to\nsuch transaction except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this paragraph, the term\n“definitive agreement between the parties concerning a transaction” does not include an executed memorandum of understanding, letter of intent or\nother preliminary agreement.\n7. Compliance with Law.\nYou hereby confirm that you are aware and that your Representatives have been advised that the United States securities laws prohibit any\nperson who has material non-public information about a company from purchasing or selling securities of such company or from communicating\nsuch information to any other person under circumstances in which it is reasonably foreseeable that such person may purchase or sell such securities.\n4\n8. Miscellaneous.\n(a) Unless terminated earlier pursuant to the terms hereof, each party’s obligations under this Agreement expire two years from the date\nhereof; provided, however, that, notwithstanding anything to the contrary in this Agreement, if either party decides not to proceed with a\npossible Transaction, your obligations hereunder to keep confidential and not to use (and to cause your Representatives to keep confidential\nand not to use) Evaluation Material shall expire three years from the date hereof.\n(b) It is agreed that no failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver thereof\nnor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or\nprivilege.\n(c) The term “person” as used in this Agreement shall be broadly interpreted to include, without limitation, the media and any\ncorporation, company, firm, group, limited liability company, partnership, trust, joint venture, governmental entity or individual.\n(d) This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Delaware without regard to\nany conflict of laws principles.\n(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior\nagreements and understandings, both written and verbal, between the parties with respect to the subject matter hereof. In furtherance and not in\nlimitation of the preceding sentence, no subsequent acceptance of any license agreement, terms of use or other similar provisions required for\naccess to any electronic data room shall be deemed to modify any of the provisions of this Agreement. This Agreement shall be binding upon\nand inure to the benefit of the parties hereto and their respective successors and permitted assigns. Any assignment of this Agreement by any\nparty, except to an affiliate or by operation of law, without the prior written consent of the other party shall be void and shall constitute a\nbreach of this Agreement.\n(f) If any part or provision of this Agreement is held to be illegal or unenforceable, the validity of the remaining parts or provisions shall\nnot be affected and the provision held illegal or unenforceable will be construed in a manner to allow enforceability and to effect the intent of\nthe parties as nearly as possible.\n(g) This Agreement may only be amended by a separate writing signed by the Company and you expressly amending this Agreement.\nAny provision of this Agreement may be waived by the party entitled to the benefit thereof, if in writing and signed by the party entitled to the\nbenefit thereof.\n(h) This Agreement may be executed in two counterparts, each of which shall be deemed to be an original, but all of which shall\nconstitute one and the same document. Counterparts may be exchanged by facsimile transmission or e-mail of scanned signatures, and such\nelectronically transmitted counterparts shall have the full force and effect of original signatures.\n*\n*\n*\n5\nIf you are in agreement with the foregoing, please so indicate by signing and returning one copy of this Agreement, whereupon this Agreement\nwill constitute our agreement with respect to the subject matter hereof.\nVery truly yours,\nTEKTRONIX, INC.\nBy:\n/s/ JAMES F. DALTON\nName:\nJames F. Dalton\nTitle:\nSenior Vice President\nCONFIRMED AND AGREED TO:\nDANAHER CORPORATION\nBy:\n/s/ JONATHAN SCHWARZ\nName:\nJonathan Schwarz\nTitle:\nDirector, Corporate Development\nDated: 9/3/07\n6
+6a36b4507a0e2e9f93f2159e743adecd.pdf	effective_date jurisdiction party term	EX-99 .2 3 exhibit992confidentialitya.htm EXHIBIT 99.2\nExhibit 99.2\nEMPLOYEE CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nTHIS AGREEMENT is made as of December 16, 2014, by the undersigned employee (hereinafter called “Employee”) of American Realty\nCapital Properties, Inc. (together with all other affiliated and/or related entities of the foregoing, the “Employer'' or the “Company”) a Maryland\ncorporation.\nWHEREAS, prior to employment by Employer, Employee understood and agreed that an agreement containing restrictive and other provisions\nof the type hereinafter set forth would be entered into by Employee as an ancillary part of the taking of such employment and Employee is in fact\nherein entering into such an agreement;\nWHEREAS, Employee understands that at various times Employee may be performing services for the benefit of any one or more of the entities\ncomprising the Employer even though Employee may actually be an employee of only one or less than all of such entities or individuals;\nWHEREAS, Employee understands and agrees that Employee will be an employee at will without employment or any right of employment for\nany fixed or particular time period or term notwithstanding that Employee's compensation arrangements now or in the future may be based upon\na stated time period or time basis which will not in any way constitute any agreement or understanding that Employee is or will be employed for\nthat or any other particular time period or for any fixed term, and at all times Employee will remain and be, in fact, an employee at will.\nNOW, THEREFORE, with intent to be legally bound, as an ancillary part of the taking of said employment and in consideration thereof,\nEmployee agrees as follows:\n1. CONFIDENTIAL AND PROPRIETARY INFORMATION OF EMPLOYER\nThe Employee recognizes and acknowledges that certain assets of the Employer constitute Confidential Information. The term “Confidential\nInformation” as used in this Agreement shall mean all information which is known only to the Employee or the Employer, other employees of\nthe Employer, or others in a confidential relationship with the Employer, and relating to the Employer's business including, without limitation,\ninformation regarding clients, customers, pricing policies, methods of operation, proprietary Employer programs, sales products, profits, costs,\nmarkets, key personnel, formulae, product applications, technical processes, and trade secrets, as such information may exist from time to time,\nwhich the Employee acquired or obtained by virtue of work performed for the Employer, or which the Employee may acquire or may have\nacquired knowledge of during the performance of said work. The Employee shall not, during or after the term of Employee's employment with\nthe Company (the “Term”), disclose all or any part of the Confidential information to any person, firm, corporation, association, or any other\nentity for any reason or purpose whatsoever, directly or indirectly, except as may be required pursuant to his employment hereunder, unless and\nuntil such Confidential Information becomes publicly available other than as a consequence of the breach by the Employee of his confidentiality\nobligations hereunder. In the event of the termination of his employment, whether voluntary or involuntary and whether by the Employer or the\nEmployee, the Employee shall deliver to the Employer all documents and data pertaining to the Confidential Information and shall not take with\nhim any documents or data of any kind or any reproductions (in whole or in part) or extracts of any items relating to the Confidential\nInformation.\nIn the event that the Employee receives a request or is required (by deposition, interrogatory, request for documents, subpoena, civil investigative\ndemand or similar process) to disclose all or any part of 1he Confidential Information, the Employee agrees to (a) promptly notify the Employer\nin writing of the existence, terms and circumstances surrounding such request or requirement, (b) consult with the Employer on the advisability\nof taking legally available steps to resist or narrow such request or requirement, and (c) assist the Employer in seeking a protective order or other\nappropriate remedy. In the event that such protective order or other remedy is not obtained or that the Employer waives compliance with the\nprovisions hereof, the Employee shall not be liable for such disclosure unless disclosure to any such tribunal was caused by or resulted from a\nprevious disclosure by the Employee not permitted by this Agreement.\n2. INTELLECTUAL PROPERTY OF EMPLOYER\nDuring the Term, the Employee shall promptly disclose to the Employer or any successor or assign, and grant to the Employer and its successors\nand assigns without any separate remuneration or compensation other than that received by him in the course of his employment, his entire right,\ntitle and interest in and to any and all inventions, developments, discoveries, models, or any other intellectual property of any type or nature\nwhatsoever (“Intellectual Property”), whether developed by him during or after business hours, or alone or in connection with others, that is in\nany way related to the business of the Employer, its successors or assigns. This provision shall not apply to books or articles authored by the\nEmployee during non-work hours, consistent with his\nobligations under this Agreement, so long all such books or articles (a) are not funded in whole or in party by the Employer, and (b) do not\ncontain any Confidential Information or Intellectual Property of the Employer. The Employee agrees, at the Employer's expense, to take all steps\nnecessary or proper to vest title to all such Intellectual Property in the Employer, and cooperate fully and assist the Employer in any litigation or\nother proceedings involving any such Intellectual Property.\n3. NON-COMPETITION BY EMPLOYEE AND RESTRICTIVE COVENANT\nDuring the Term and for a period of nine (9) calendar months after the termination of the Employee’s employment for any reason (the “Restricted\nPeriod”), the Employee shall not, directly or indirectly, either as a principal, agent, employee, employer, stockholder, partner or in any other\ncapacity whatsoever: engage or assist others who engage, in whole or in part, in any business or enterprise that is directly competitive with (x)\nthe business that the Company engaged in during the period of the Employee's employment with the Company, currently net leased real estate\ninvestments, or (y) any product, service or business as to which the Company has actively begun preparing to develop at the time of Employee's\nseparation from the Company.\nDuring the Term and the Restricted Period, the Employee shall not, directly or indirectly, either as a principal, agent, employee, employer,\nstockholder, partner or in any other capacity whatsoever: (a) have any contact with any investor, advisor or registered financial representative\nwhich was an investor, or advisor or registered financial representative of an investor, of the Company during the period of my employment or\nwhich the Company was actively pursuing as a potential investor, advisor or registered financial representative of a potential investor at the time\nmy employment terminates, for the purpose of pursuing activities with that investor, advisor or registered financial representative which are\ncompetitive with or similar to the relationship between the Company and that investor, or (b) without the prior consent of the Board, employ or\nsolicit the employment of, or assist others in employing or soliciting the employment of, any individual employed by the Company at any time\nwhile the Employee was also employed.\nNothing in this Section 3 shall prohibit Employee from making any passive investment in a public company, or where he is the owner of five\npercent (5%) or less of the issued and outstanding voting securities of any entity, provided such ownership does not result in his being obligated\nor required to devote any managerial efforts. The Employee agrees to secure prior written consent from the Chief Compliance Officer of the\nCompany for any outside business activity described in the Written Supervisory Procedures.\nThe Employee agrees that the restraints imposed upon him pursuant to this Section 3 are necessary for the reasonable and proper protection of\nthe Company and its subsidiaries and affiliates, and that each and every one of the restraints is reasonable in respect to subject matter, length of\ntime and geographic area. The parties further agree that in the event that any provision of this Section 3 shall be determined by any court of\ncompetent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too greatly a\nrange of activities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.\n4. EMPLOYER PROPERTY\nEmployee shall be responsible for the safekeeping of any equipment or property provided by Employer, including but not limited to furniture,\nsupplies, records, documents, cellular phones, laptop computers, desktop computers, printers, fax machines, answering machines, computer\nsoftware, manuals, etc., and shall reimburse Employer or replace the equipment or property if any is lost or stolen while in Employee's\npossession.\nUpon termination of Employee's employment with Employer, Employee shall turn over to Employer upon demand all such equipment and\nproperty provided by Employer. Employee must also return to Employer all Employer files, records and keys issued.\n5. INJUNCTIVE RELIEF\nEmployee and Employer agree that any breach by Employee of the covenants and agreements contained in any Section of this Agreement will\nresult in irreparable injury to Employer for which money damages could not adequately compensate Employer and therefore, in the event of any\nsuch breach, Employer shall be entitled (in addition to any other rights or remedies which Employer may have at law or in equity, including\nmoney damages) to have an injunction issued by any competent court of equity enjoining and restraining Employee and/or any other person\ninvolved therein from continuing such breach. If Employer resorts to the courts for the enforcement of any of the covenants or agreements\ncontained herein, or if such covenants or agreements are otherwise the subject of litigation between the parties, Employee shall be liable for\nEmployer's reasonable attorneys' fees and legal expenses, and then any limiting term of such covenants and agreements shall be extended for a\nperiod of time equal to the period of such breach, which extension shall commence on the later of (a) the date of which the original (unextended)\nterm of such\ncovenants and agreements is scheduled to terminate or (b) the date that the final court (without further right of appeal) enforces such covenant or\nagreement.\n6. CONTINUING EFFECT OF OTHER PROVISIONS IN EVENT OF PARTIAL INVALIDITY\nEmployee further agrees that a breach of any agreement, whether written or oral, between Employer and Employee or any other actionable\nconduct by Employee, or any defense, set-off or counterclaim by Employee against Employer, or any other related rights Employee has against\nEmployer will have no effect on any or all of the terms and provisions of the restrictive covenants and other agreements contained herein or on\ntheir enforceability and validity. If any portion of the covenants or agreements contained in this Agreement, or the application thereof, is\nconstrued to be invalid or unenforceable then the other portions of such covenants or agreements or the application thereof shall not be affected\nand shall be given full force and effect without regard to the invalid or unenforceable portions. If any covenant or agreement therein is held to be\nunenforceable because of the area covered or the duration thereof, such covenant or agreement shall then be enforceable in its reduced form. If\nany of the provisions hereof violate or contravene the applicable laws of any jurisdiction, such provisions shall be deemed not to be a part of this\nAgreement with respect to such jurisdiction only, and the remainder of this Agreement shall remain in full force and effect in such jurisdiction\nand this entire Agreement shall remain in full force and effect in all other jurisdictions.\n7. BENEFIT TO SUCCESSORS OF EMPLOYER AND APPLICABLE LAW\nThis Agreement shall inure to the benefit of Employer and its successors and assigns. If any action at law or in equity is necessary to enforce or\ninterpret the terms of this Agreement, Employer shall be entitled to reasonable attorneys' fees, costs, and necessary disbursements if Employer\nprevails in such action. This Agreement shall be construed and enforced in accordance with the laws of the New York State. If required by the\ncontext of this Agreement, singular language shall be construed as plural, plural language shall be construed as singular, and the gender of\npersonal pronouns shall be construed as masculine, feminine or neuter. This Agreement supplements and does not supersede and is in no way in\ndiminution of any other agreements(s), entered into by Employee regarding the subject matter hereof or containing provisions the same as or\nsimilar in nature hereto, and this Agreement and all such agreements shall remain in full force and effect, independent of one another, and the\nprovisions most restrictive to Employee of this Agreement and all such agreements shall be the controlling provisions that are applicable to\nEmployee.\nEmployee represents, warrants and covenants that employee is not a party to or bound by any agreement with any third person or entity and/or is\nnot otherwise bound by law which would in any way restrict, inhibit or limit Employee's ability to fully render and perform all services requested\nby Employer, including but not limited to, fully contacting and dealing with all customers and suppliers in all marketplaces, fully advising\nEmployer about processes and methods, fully using and disclosing all information about suppliers, customers, processes and methods of which\nEmployee may have knowledge, and keeping Employer fully informed of such, and/or which would in any way restrict, inhibit or limit\nEmployee’s ability to fully compete with any third person or entity seeking in any way to restrict, inhibit or limit Employee from fully rendering\nand performing all services requested by Employer, including but not limited to, those set forth above, and/or seeking damages as a result\nthereof. Employee hereby agrees to indemnify and hold harmless Employer from any and all claims, liabilities, losses, damages and/or expenses\nwith respect thereto including but not limited to reasonable attorneys' fees. Employee hereby acknowledges that he fully understands that\nEmployer's employment of Employee is conditioned upon Employee's ability to fully render and perform all services requested of him without\nany restriction, hindrance or limit by any third person or entity.\nIN WITNESS WHEREOF, Employee has executed this Agreement with intent to be legally bound as of the day and year first above written.\nEMPLOYEE:\n/s/ Gavin Brandon\nBy: Gavin Brandon	EX-99.2 3 exhibit992confidentialitya.htm EXHIBIT 99.2\nExhibit 99.2\nEMPLOYEE CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nTHIS AGREEMENT is made as of December 16, 2014, by the undersigned employee (hereinafter called “Employee”) of American Realty\nCapital Properties, Inc. (together with all other affiliated and/or related entities of the foregoing, the “Employer" or the “Company”) a Maryland\ncorporation.\nWHEREAS, prior to employment by Employer, Employee understood and agreed that an agreement containing restrictive and other provisions\nof the type hereinafter set forth would be entered into by Employee as an ancillary part of the taking of such employment and Employee is in fact\nherein entering into such an agreement;\nWHEREAS, Employee understands that at various times Employee may be performing services for the benefit of any one or more of the entities\ncomprising the Employer even though Employee may actually be an employee of only one or less than all of such entities or individuals;\nWHEREAS, Employee understands and agrees that Employee will be an employee at will without employment or any right of employment for\nany fixed or particular time period or term notwithstanding that Employee's compensation arrangements now or in the future may be based upon\na stated time period or time basis which will not in any way constitute any agreement or understanding that Employee is or will be employed for\nthat or any other particular time period or for any fixed term, and at all times Employee will remain and be, in fact, an employee at will.\nNOW, THEREFORE, with intent to be legally bound, as an ancillary part of the taking of said employment and in consideration thereof,\nEmployee agrees as follows:\n1. CONFIDENTIAL AND PROPRIETARY INFORMATION OF EMPLOYER\nThe Employee recognizes and acknowledges that certain assets of the Employer constitute Confidential Information. The term “Confidential\nInformation” as used in this Agreement shall mean all information which is known only to the Employee or the Employer, other employees of\nthe Employer, or others in a confidential relationship with the Employer, and relating to the Employer's business including, without limitation,\ninformation regarding clients, customers, pricing policies, methods of operation, proprietary Employer programs, sales products, profits, costs,\nmarkets, key personnel, formulae, product applications, technical processes, and trade secrets, as such information may exist from time to time,\nwhich the Employee acquired or obtained by virtue of work performed for the Employer, or which the Employee may acquire or may have\nacquired knowledge of during the performance of said work. The Employee shall not, during or after the term of Employee's employment with\nthe Company (the “Term”), disclose all or any part of the Confidential information to any person, firm, corporation, association, or any other\nentity for any reason or purpose whatsoever, directly or indirectly, except as may be required pursuant to his employment hereunder, unless and\nuntil such Confidential Information becomes publicly available other than as a consequence of the breach by the Employee of his confidentiality\nobligations hereunder. In the event of the termination of his employment, whether voluntary or involuntary and whether by the Employer or the\nEmployee, the Employee shall deliver to the Employer all documents and data pertaining to the Confidential Information and shall not take with\nhim any documents or data of any kind or any reproductions (in whole or in part) or extracts of any items relating to the Confidential\nInformation.\nIn the event that the Employee receives a request or is required (by deposition, interrogatory, request for documents, subpoena, civil investigative\ndemand or similar process) to disclose all or any part of 1he Confidential Information, the Employee agrees to (a) promptly notify the Employer\nin writing of the existence, terms and circumstances surrounding such request or requirement, (b) consult with the Employer on the advisability\nof taking legally available steps to resist or narrow such request or requirement, and (c) assist the Employer in seeking a protective order or other\nappropriate remedy. In the event that such protective order or other remedy is not obtained or that the Employer waives compliance with the\nprovisions hereof, the Employee shall not be liable for such disclosure unless disclosure to any such tribunal was caused by or resulted from a\nprevious disclosure by the Employee not permitted by this Agreement.\n2. INTELLECTUAL PROPERTY OF EMPLOYER\nDuring the Term, the Employee shall promptly disclose to the Employer or any successor or assign, and grant to the Employer and its successors\nand assigns without any separate remuneration or compensation other than that received by him in the course of his employment, his entire right,\ntitle and interest in and to any and all inventions, developments, discoveries, models, or any other intellectual property of any type or nature\nwhatsoever (“Intellectual Property”), whether developed by him during or after business hours, or alone or in connection with others, that is in\nany way related to the business of the Employer, its successors or assigns. This provision shall not apply to books or articles authored by the\nEmployee during non-work hours, consistent with his\nobligations under this Agreement, so long all such books or articles (a) are not funded in whole or in party by the Employer, and (b) do not\ncontain any Confidential Information or Intellectual Property of the Employer. The Employee agrees, at the Employer's expense, to take all steps\nnecessary or proper to vest title to all such Intellectual Property in the Employer, and cooperate fully and assist the Employer in any litigation or\nother proceedings involving any such Intellectual Property.\n3. NON-COMPETITION BY EMPLOYEE AND RESTRICTIVE COVENANT\nDuring the Term and for a period of nine (9) calendar months after the termination of the Employee’s employment for any reason (the “Restricted\nPeriod”), the Employee shall not, directly or indirectly, either as a principal, agent, employee, employer, stockholder, partner or in any other\ncapacity whatsoever: engage or assist others who engage, in whole or in part, in any business or enterprise that is directly competitive with (x)\nthe business that the Company engaged in during the period of the Employee's employment with the Company, currently net leased real estate\ninvestments, or (y) any product, service or business as to which the Company has actively begun preparing to develop at the time of Employee's\nseparation from the Company.\nDuring the Term and the Restricted Period, the Employee shall not, directly or indirectly, either as a principal, agent, employee, employer,\nstockholder, partner or in any other capacity whatsoever: (a) have any contact with any investor, advisor or registered financial representative\nwhich was an investor, or advisor or registered financial representative of an investor, of the Company during the period of my employment or\nwhich the Company was actively pursuing as a potential investor, advisor or registered financial representative of a potential investor at the time\nmy employment terminates, for the purpose of pursuing activities with that investor, advisor or registered financial representative which are\ncompetitive with or similar to the relationship between the Company and that investor, or (b) without the prior consent of the Board, employ or\nsolicit the employment of, or assist others in employing or soliciting the employment of, any individual employed by the Company at any time\nwhile the Employee was also employed.\nNothing in this Section 3 shall prohibit Employee from making any passive investment in a public company, or where he is the owner of five\npercent (5%) or less of the issued and outstanding voting securities of any entity, provided such ownership does not result in his being obligated\nor required to devote any managerial efforts. The Employee agrees to secure prior written consent from the Chief Compliance Officer of the\nCompany for any outside business activity described in the Written Supervisory Procedures.\nThe Employee agrees that the restraints imposed upon him pursuant to this Section 3 are necessary for the reasonable and proper protection of\nthe Company and its subsidiaries and affiliates, and that each and every one of the restraints is reasonable in respect to subject matter, length of\ntime and geographic area. The parties further agree that in the event that any provision of this Section 3 shall be determined by any court of\ncompetent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too greatly a\nrange of activities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.\n4. EMPLOYER PROPERTY\nEmployee shall be responsible for the safekeeping of any equipment or property provided by Employer, including but not limited to furniture,\nsupplies, records, documents, cellular phones, laptop computers, desktop computers, printers, fax machines, answering machines, computer\nsoftware, manuals, etc., and shall reimburse Employer or replace the equipment or property if any is lost or stolen while in Employee's\npossession.\nUpon termination of Employee's employment with Employer, Employee shall turn over to Employer upon demand all such equipment and\nproperty provided by Employer. Employee must also return to Employer all Employer files, records and keys issued.\n5. INJUNCTIVE RELIEF\nEmployee and Employer agree that any breach by Employee of the covenants and agreements contained in any Section of this Agreement will\nresult in irreparable injury to Employer for which money damages could not adequately compensate Employer and therefore, in the event of any\nsuch breach, Employer shall be entitled (in addition to any other rights or remedies which Employer may have at law or in equity, including\nmoney damages) to have an injunction issued by any competent court of equity enjoining and restraining Employee and/or any other person\ninvolved therein from continuing such breach. If Employer resorts to the courts for the enforcement of any of the covenants or agreements\ncontained herein, or if such covenants or agreements are otherwise the subject of litigation between the parties, Employee shall be liable for\nEmployer's reasonable attorneys' fees and legal expenses, and then any limiting term of such covenants and agreements shall be extended for a\nperiod of time equal to the period of such breach, which extension shall commence on the later of (a) the date of which the original (unextended)\nterm of such\ncovenants and agreements is scheduled to terminate or (b) the date that the final court (without further right of appeal) enforces such covenant or\nagreement.\n6. CONTINUING EFFECT OF OTHER PROVISIONS IN EVENT OF PARTIAL INVALIDITY\nEmployee further agrees that a breach of any agreement, whether written or oral, between Employer and Employee or any other actionable\nconduct by Employee, or any defense, set-off or counterclaim by Employee against Employer, or any other related rights Employee has against\nEmployer will have no effect on any or all of the terms and provisions of the restrictive covenants and other agreements contained herein or on\ntheir enforceability and validity. If any portion of the covenants or agreements contained in this Agreement, or the application thereof, is\nconstrued to be invalid or unenforceable then the other portions of such covenants or agreements or the application thereof shall not be affected\nand shall be given full force and effect without regard to the invalid or unenforceable portions. If any covenant or agreement therein is held to be\nunenforceable because of the area covered or the duration thereof, such covenant or agreement shall then be enforceable in its reduced form. If\nany of the provisions hereof violate or contravene the applicable laws of any jurisdiction, such provisions shall be deemed not to be a part of this\nAgreement with respect to such jurisdiction only, and the remainder of this Agreement shall remain in full force and effect in such jurisdiction\nand this entire Agreement shall remain in full force and effect in all other jurisdictions.\n7. BENEFIT TO SUCCESSORS OF EMPLOYER AND APPLICABLE LAW\nThis Agreement shall inure to the benefit of Employer and its successors and assigns. If any action at law or in equity is necessary to enforce or\ninterpret the terms of this Agreement, Employer shall be entitled to reasonable attorneys' fees, costs, and necessary disbursements if Employer\nprevails in such action. This Agreement shall be construed and enforced in accordance with the laws of the New York State. If required by the\ncontext of this Agreement, singular language shall be construed as plural, plural language shall be construed as singular, and the gender of\npersonal pronouns shall be construed as masculine, feminine or neuter. This Agreement supplements and does not supersede and is in no way in\ndiminution of any other agreements(s), entered into by Employee regarding the subject matter hereof or containing provisions the same as or\nsimilar in nature hereto, and this Agreement and all such agreements shall remain in full force and effect, independent of one another, and the\nprovisions most restrictive to Employee of this Agreement and all such agreements shall be the controlling provisions that are applicable to\nEmployee.\nEmployee represents, warrants and covenants that employee is not a party to or bound by any agreement with any third person or entity and/or is\nnot otherwise bound by law which would in any way restrict, inhibit or limit Employee's ability to fully render and perform all services requested\nby Employer, including but not limited to, fully contacting and dealing with all customers and suppliers in all marketplaces, fully advising\nEmployer about processes and methods, fully using and disclosing all information about suppliers, customers, processes and methods of which\nEmployee may have knowledge, and keeping Employer fully informed of such, and/or which would in any way restrict, inhibit or limit\nEmployee’s ability to fully compete with any third person or entity seeking in any way to restrict, inhibit or limit Employee from fully rendering\nand performing all services requested by Employer, including but not limited to, those set forth above, and/or seeking damages as a result\nthereof. Employee hereby agrees to indemnify and hold harmless Employer from any and all claims, liabilities, losses, damages and/or expenses\nwith respect thereto including but not limited to reasonable attorneys' fees. Employee hereby acknowledges that he fully understands that\nEmployer's employment of Employee is conditioned upon Employee's ability to fully render and perform all services requested of him without\nany restriction, hindrance or limit by any third person or entity.\nIN WITNESS WHEREOF, Employee has executed this Agreement with intent to be legally bound as of the day and year first above written.\nEMPLOYEE:\n/s/ Gavin Brandon\nBy: Gavin Brandon	EX-99.2 exhibit992confidentialitya.htm EXHIBIT 99.2\nExhibit 99.2\nEMPLOYEE CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nTHIS AGREEMENT is made as of December 16, 2014, by the undersigned employee (hereinafter called "Employee") of American Realty\nCapital Properties, Inc. (together with all other affiliated and/or related entities of the foregoing, the "Employer" or the "Company") a Maryland\ncorporation.\nWHEREAS, prior to employment by Employer, Employee understood and agreed that an agreement containing restrictive and other provisions\nof the type hereinafter set forth would be entered into by Employee as an ancillary part of the taking of such employment and Employee is in fact\nherein entering into such an agreement;\nWHEREAS, Employee understands that at various times Employee may be performing services for the benefit of any one or more of the entities\ncomprising the Employer even though Employee may actually be an employee of only one or less than all of such entities or individuals;\nWHEREAS, Employee understands and agrees that Employee will be an employee at will without employment or any right of employment for\nany fixed or particular time period or term notwithstanding that Employee's compensation arrangements now or in the future may be based upon\na stated time period or time basis which will not in any way constitute any agreement or understanding that Employee is or will be employed for\nthat or any other particular time period or for any fixed term, and at all times Employee will remain and be, in fact, an employee at will.\nNOW, THEREFORE, with intent to be legally bound, as an ancillary part of the taking of said employment and in consideration thereof,\nEmployee agrees as follows:\n1. CONFIDENTIAL AND PROPRIETARY INFORMATION OF EMPLOYER\nThe Employee recognizes and acknowledges that certain assets of the Employer constitute Confidential Information. The term "Confidential\nInformation"\nas\nused\nin\nthis\nAgreement\nshall\nmean\nall\ninformation\nwhich\nis\nknown\nonly\nto\nthe\nEmployee\nor\nthe\nEmployer,\nother\nemployees\nof\nthe Employer, or others in a confidential relationship with the Employer, and relating to the Employer's business including, without limitation,\ninformation regarding clients, customers, pricing policies, methods of operation, proprietary Employer programs, sales products, profits, costs,\nmarkets,\nkey\npersonnel,\nformulae,\nproduct\napplications,\ntechnical\nprocesses,\nand\ntrade\nsecrets,\nas\nsuch\ninformation\nmay\nexist\nfrom\ntime\nto\ntime,\nwhich the Employee acquired or obtained by virtue of work performed for the Employer, or which the Employee may acquire or may have\nacquired knowledge of during the performance of said work. The Employee shall not, during or after the term of Employee's employment with\nthe Company (the "Term"), disclose all or any part of the Confidential information to any person, firm, corporation, association, or any other\nentity for any reason or purpose whatsoever, directly or indirectly, except as may be required pursuant to his employment hereunder, unless and\nuntil such Confidential Information becomes publicly available other than as a consequence of the breach by the Employee of his confidentiality\nobligations hereunder. In the event of the termination of his employment, whether voluntary or involuntary and whether by the Employer or the\nEmployee, the Employee shall deliver to the Employer all documents and data pertaining to the Confidential Information and shall not take with\nhim any documents or data of any kind or any reproductions (in whole or in part) or extracts of any items relating to the Confidential\nInformation.\nIn the event that the Employee receives a request or is required (by deposition, interrogatory, request for documents, subpoena, civil investigative\ndemand or similar process) to disclose all or any part of 1he Confidential Information, the Employee agrees to (a) promptly notify the Employer\nin writing of the existence, terms and circumstances surrounding such request or requirement, (b) consult with the Employer on the advisability\nof taking legally available steps to resist or narrow such request or requirement, and (c) assist the Employer in seeking a protective order or other\nappropriate remedy. In the event that such protective order or other remedy is not obtained or that the Employer waives compliance with the\nprovisions hereof, the Employee shall not be liable for such disclosure unless disclosure to any such tribunal was caused by or resulted from a\nprevious disclosure by the Employee not permitted by this Agreement.\n2. INTELLECTUAL PROPERTY OF EMPLOYER\nDuring the Term, the Employee shall promptly disclose to the Employer or any successor or assign, and grant to the Employer and its successors\nand assigns without any separate remuneration or compensation other than that received by him in the course of his employment, his entire right,\ntitle\nand interest in and to any and all inventions, developments, discoveries, models, or any other intellectual property of any type or nature\nwhatsoever ("Intellectual Property"), whether developed by him during or after business hours, or alone or in connection with others, that is\nin\nany way related to the business of the Employer, its successors or assigns. This provision shall not apply to books or articles authored by the\nEmployee during non-work hours, consistent with his\nobligations under this Agreement, so long all such books or articles (a) are not funded in whole or in party by the Employer, and (b) do not\ncontain any Confidential Information or Intellectual Property of the Employer. The Employee agrees, at the Employer's expense, to take all steps\nnecessary or proper to vest title to all such Intellectual Property in the Employer, and cooperate fully and assist the Employer in any litigation\nor\nother proceedings involving any such Intellectual Property.\n3. NON-COMPETITION BY EMPLOYEE AND RESTRICTIVE COVENANT\nDuring the Term and for a period of nine (9) calendar months after the termination of the Employee's employment for any reason (the "Restricted\nPeriod"), the Employee shall not, directly or indirectly, either as a principal, agent, employee, employer, stockholder, partner or in any other\ncapacity whatsoever: engage or assist others who engage, in whole or in part, in any business or enterprise that is directly competitive with (x)\nthe\nbusiness\nthat\nthe\nCompany\nengaged\nin\nduring\nthe\nperiod\nof\nthe\nEmployee's\nemployment\nwith\nthe\nCompany,\ncurrently\nnet\nleased\nreal\nestate\ninvestments, or (y) any product, service or business as to which the Company has actively begun preparing to develop at the time of Employee's\nseparation from the Company.\nDuring the Term and the Restricted Period, the Employee shall not, directly or indirectly, either as a principal, agent, employee, employer,\nstockholder, partner or in any other capacity whatsoever: (a) have any contact with any investor, advisor or registered financial representative\nwhich\nwas\nan\ninvestor,\nor\nadvisor\nor\nregistered\nfinancial\nrepresentative\nof\nan\ninvestor,\nof\nthe\nCompany\nduring\nthe\nperiod\nof\nmy\nemployment\nor\nwhich the Company was actively pursuing as a potential investor, advisor or registered financial representative of a potentia investor at the time\nmy employment terminates, for the purpose of pursuing activities with that investor, advisor or registered financial representative which\nare\ncompetitive with or similar to the relationship between the Company and that investor, or (b) without the prior consent of the Board, employ or\nsolicit the employment of, or assist others in employing or soliciting the employment of, any individual employed by the Company at any time\nwhile the Employee was also employed.\nNothing in this Section 3 shall prohibit Employee from making any passive investment in a public company, or where he is the owner of five\npercent (5%) or less of the issued and outstanding voting securities of any entity, provided such ownership does not result in his being obligated\nor\nrequired to devote any managerial efforts. The Employee agrees to secure prior written consent from the Chief Compliance Officer of the\nCompany for any outside business activity described in the Written Supervisory Procedures.\nThe Employee agrees that the restraints imposed upon him pursuant to this Section 3 are necessary for the reasonable and proper protection of\nthe Company and its subsidiaries and affiliates, and that each and every one of the restraints is reasonable in respect to subject matter, length of\ntime and geographic area. The parties further agree that in the event that any provision of this Section 3 shall be determined by any court of\ncompetent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too greatly\na\nrange of activities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.\n4. EMPLOYER PROPERTY\nEmployee shall be responsible for the safekeeping of any equipment or property provided by Employer, including but not limited to furniture,\nsupplies, records, documents, cellular phones, laptop computers, desktop computers, printers, fax machines, answering machines, computer\nsoftware, manuals, etc., and shall reimburse Employer or replace the equipment or property if any is lost or stolen while in Employee's\npossession.\nUpon termination of Employee's employment with Employer, Employee shall turn over to Employer upon demand all such equipment and\nproperty provided by Employer. Employee must also return to Employer all Employer files, records and keys issued.\n5. INJUNCTIVE RELIEF\nEmployee and Employer agree that any breach by Employee of the covenants and agreements contained in any Section of this Agreement will\nresult in irreparable injury to Employer for which money damages could not adequately compensate Employer and therefore, in the event of any\nsuch breach, Employer shall be entitled (in addition to any other rights or remedies which Employer may have at law or in equity, including\nmoney damages) to have an injunction issued by any competent court of equity enjoining and restraining Employee and/or any other person\ninvolved therein from continuing such breach. If Employer resorts to the courts for the enforcement of any of the covenants or agreements\ncontained herein, or if such covenants or agreements are otherwise the subject of litigation between the parties, Employee shall be liable\nfor\nEmployer's reasonable attorneys' fees and legal expenses, and then any limiting term of such covenants and agreements shall be extended for a\nperiod of time equal to the period of such breach, which extension shall commence on the later of (a) the date of which the original (unextended)\nterm of such\ncovenants and agreements is scheduled to terminate or (b) the date that the final court (without further right of appeal) enforces such covenant or\nagreement.\n6. CONTINUING EFFECT OF OTHER PROVISIONS IN EVENT OF PARTIAL INVALIDITY\nEmployee further agrees that a breach of any agreement, whether written or oral, between Employer and Employee or any other actionable\nconduct by Employee, or any defense, set-off or counterclaim by Employee against Employer, or any other related rights Employee has against\nEmployer\nwill\nhave\nno\neffect\non\nany\nor\nall\nof\nthe\nterms\nand\nprovisions\nof\nthe\nrestrictive\ncovenants\nand\nother\nagreements\ncontained\nherein\nor\non\ntheir enforceability and validity. If any portion of the covenants or agreements contained in this Agreement, or the application thereof,\nis\nconstrued to be invalid or unenforceable then the other portions of such covenants or agreements or the application thereof shall not be affected\nand\nshall\nbe\ngiven full force and effect without regard to the invalid or unenforceable portions. If any covenant or agreement therein is held to\nbe\nunenforceable because of the area covered or the duration thereof, such covenant or agreement shall then be enforceable in its reduced form. If\nany of the provisions hereof violate or contravene the applicable laws of any jurisdiction, such provisions shall be deemed not to be a part of this\nAgreement with respect to such jurisdiction only, and the remainder of this Agreement shall remain in full force and effect in such jurisdiction\nand this entire Agreement shall remain in full force and effect in all other jurisdictions.\n7. BENEFIT TO SUCCESSORS OF EMPLOYER AND APPLICABLE LAW\nThis Agreement shall inure to the benefit of Employer and its successors and assigns. If any action at law or in equity is necessary to enforce or\ninterpret the terms of this Agreement, Employer shall be entitled to reasonable attorneys' fees, costs, and necessary disbursements if Employer\nprevails in such action. This Agreement shall be construed and enforced in accordance with the laws of the New York State. If required by the of\ncontext of this Agreement, singular language shall be construed as plural, plural language shall be construed as singular, and the gender\npersonal pronouns shall be construed as masculine, feminine or neuter. This Agreement supplements and does not supersede and is in no way in\ndiminution of any other agreements(s), entered into by Employee regarding the subject matter hereof or containing provisions the same as or\nsimilar in nature hereto, and this Agreement and all such agreements shall remain in full force and effect, independent of one another, and the\nprovisions most restrictive to Employee of this Agreement and all such agreements shall be the controlling provisions that are applicable\nto\nEmployee.\nEmployee represents, warrants and covenants that employee is not a party to or bound by any agreement with any third person or entity and/or is\nnot otherwise bound by law which would in any way restrict, inhibit or limit Employee's ability to fully render and perform all services requested\nby Employer, including but not limited to, fully contacting and dealing with all customers and suppliers in all marketplaces, fully advising\nEmployer about processes and methods, fully using and disclosing all information about suppliers, customers, processes and methods of which\nEmployee may have knowledge, and keeping Employer fully informed of such, and/or which would in any way restrict, inhibit or limit\nEmployee's ability to fully compete with any third person or entity seeking in any way to restrict, inhibit or limit Employee from fully rendering\nand performing all services requested by Employer, including but not limited to, those set forth above, and/or seeking damages as a result\nthereof. Employee hereby agrees to indemnify and hold harmless Employer from any and all claims, liabilities, losses, damages and/or expenses\nwith\nrespect\nthereto\nincluding\nbut\nnot\nlimited\nto\nreasonable\nattorneys'\nfees.\nEmployee\nhereby\nacknowledges\nthat\nhe\nfully\nunderstands\nthat\nEmployer's employment of Employee is conditioned upon Employee's ability to fully render and perform all services requested of him without\nany restriction, hindrance or limit by any third person or entity.\nIN WITNESS WHEREOF, Employee has executed this Agreement with intent to be legally bound as of the day and year first above written.\nEMPLOYEE:\n/s/ Gavin Brandon\nBy: Gavin Brandon	EX-99 .2 3 exhibit992confidentialitya.htm EXHIBIT 99.2\nExhibit 99.2\nEMPLOYEE CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nTHIS AGREEMENT is made as of December 16, 2014, by the undersigned employee (hereinafter called “Employee”) of American Realty\nCapital Properties, Inc. (together with all other affiliated and/or related entities of the foregoing, the “Employer'' or the “Company”) a Maryland\ncorporation.\nWHEREAS, prior to employment by Employer, Employee understood and agreed that an agreement containing restrictive and other provisions\nof the type hereinafter set forth would be entered into by Employee as an ancillary part of the taking of such employment and Employee is in fact\nherein entering into such an agreement;\nWHEREAS, Employee understands that at various times Employee may be performing services for the benefit of any one or more of the entities\ncomprising the Employer even though Employee may actually be an employee of only one or less than all of such entities or individuals;\nWHEREAS, Employee understands and agrees that Employee will be an employee at will without employment or any right of employment for\nany fixed or particular time period or term notwithstanding that Employee's compensation arrangements now or in the future may be based upon\na stated time period or time basis which will not in any way constitute any agreement or understanding that Employee is or will be employed for\nthat or any other particular time period or for any fixed term, and at all times Employee will remain and be, in fact, an employee at will.\nNOW, THEREFORE, with intent to be legally bound, as an ancillary part of the taking of said employment and in consideration thereof,\nEmployee agrees as follows:\n1. CONFIDENTIAL AND PROPRIETARY INFORMATION OF EMPLOYER\nThe Employee recognizes and acknowledges that certain assets of the Employer constitute Confidential Information. The term “Confidential\nInformation” as used in this Agreement shall mean all information which is known only to the Employee or the Employer, other employees of\nthe Employer, or others in a confidential relationship with the Employer, and relating to the Employer's business including, without limitation,\ninformation regarding clients, customers, pricing policies, methods of operation, proprietary Employer programs, sales products, profits, costs,\nmarkets, key personnel, formulae, product applications, technical processes, and trade secrets, as such information may exist from time to time,\nwhich the Employee acquired or obtained by virtue of work performed for the Employer, or which the Employee may acquire or may have\nacquired knowledge of during the performance of said work. The Employee shall not, during or after the term of Employee's employment with\nthe Company (the “Term”), disclose all or any part of the Confidential information to any person, firm, corporation, association, or any other\nentity for any reason or purpose whatsoever, directly or indirectly, except as may be required pursuant to his employment hereunder, unless and\nuntil such Confidential Information becomes publicly available other than as a consequence of the breach by the Employee of his confidentiality\nobligations hereunder. In the event of the termination of his employment, whether voluntary or involuntary and whether by the Employer or the\nEmployee, the Employee shall deliver to the Employer all documents and data pertaining to the Confidential Information and shall not take with\nhim any documents or data of any kind or any reproductions (in whole or in part) or extracts of any items relating to the Confidential\nInformation.\nIn the event that the Employee receives a request or is required (by deposition, interrogatory, request for documents, subpoena, civil investigative\ndemand or similar process) to disclose all or any part of 1he Confidential Information, the Employee agrees to (a) promptly notify the Employer\nin writing of the existence, terms and circumstances surrounding such request or requirement, (b) consult with the Employer on the advisability\nof taking legally available steps to resist or narrow such request or requirement, and (c) assist the Employer in seeking a protective order or other\nappropriate remedy. In the event that such protective order or other remedy is not obtained or that the Employer waives compliance with the\nprovisions hereof, the Employee shall not be liable for such disclosure unless disclosure to any such tribunal was caused by or resulted from a\nprevious disclosure by the Employee not permitted by this Agreement.\n2. INTELLECTUAL PROPERTY OF EMPLOYER\nDuring the Term, the Employee shall promptly disclose to the Employer or any successor or assign, and grant to the Employer and its successors\nand assigns without any separate remuneration or compensation other than that received by him in the course of his employment, his entire right,\ntitle and interest in and to any and all inventions, developments, discoveries, models, or any other intellectual property of any type or nature\nwhatsoever (“Intellectual Property”), whether developed by him during or after business hours, or alone or in connection with others, that is in\nany way related to the business of the Employer, its successors or assigns. This provision shall not apply to books or articles authored by the\nEmployee during non-work hours, consistent with his\nobligations under this Agreement, so long all such books or articles (a) are not funded in whole or in party by the Employer, and (b) do not\ncontain any Confidential Information or Intellectual Property of the Employer. The Employee agrees, at the Employer's expense, to take all steps\nnecessary or proper to vest title to all such Intellectual Property in the Employer, and cooperate fully and assist the Employer in any litigation or\nother proceedings involving any such Intellectual Property.\n3. NON-COMPETITION BY EMPLOYEE AND RESTRICTIVE COVENANT\nDuring the Term and for a period of nine (9) calendar months after the termination of the Employee’s employment for any reason (the “Restricted\nPeriod”), the Employee shall not, directly or indirectly, either as a principal, agent, employee, employer, stockholder, partner or in any other\ncapacity whatsoever: engage or assist others who engage, in whole or in part, in any business or enterprise that is directly competitive with (x)\nthe business that the Company engaged in during the period of the Employee's employment with the Company, currently net leased real estate\ninvestments, or (y) any product, service or business as to which the Company has actively begun preparing to develop at the time of Employee's\nseparation from the Company.\nDuring the Term and the Restricted Period, the Employee shall not, directly or indirectly, either as a principal, agent, employee, employer,\nstockholder, partner or in any other capacity whatsoever: (a) have any contact with any investor, advisor or registered financial representative\nwhich was an investor, or advisor or registered financial representative of an investor, of the Company during the period of my employment or\nwhich the Company was actively pursuing as a potential investor, advisor or registered financial representative of a potential investor at the time\nmy employment terminates, for the purpose of pursuing activities with that investor, advisor or registered financial representative which are\ncompetitive with or similar to the relationship between the Company and that investor, or (b) without the prior consent of the Board, employ or\nsolicit the employment of, or assist others in employing or soliciting the employment of, any individual employed by the Company at any time\nwhile the Employee was also employed.\nNothing in this Section 3 shall prohibit Employee from making any passive investment in a public company, or where he is the owner of five\npercent (5%) or less of the issued and outstanding voting securities of any entity, provided such ownership does not result in his being obligated\nor required to devote any managerial efforts. The Employee agrees to secure prior written consent from the Chief Compliance Officer of the\nCompany for any outside business activity described in the Written Supervisory Procedures.\nThe Employee agrees that the restraints imposed upon him pursuant to this Section 3 are necessary for the reasonable and proper protection of\nthe Company and its subsidiaries and affiliates, and that each and every one of the restraints is reasonable in respect to subject matter, length of\ntime and geographic area. The parties further agree that in the event that any provision of this Section 3 shall be determined by any court of\ncompetent jurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too greatly a\nrange of activities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.\n4. EMPLOYER PROPERTY\nEmployee shall be responsible for the safekeeping of any equipment or property provided by Employer, including but not limited to furniture,\nsupplies, records, documents, cellular phones, laptop computers, desktop computers, printers, fax machines, answering machines, computer\nsoftware, manuals, etc., and shall reimburse Employer or replace the equipment or property if any is lost or stolen while in Employee's\npossession.\nUpon termination of Employee's employment with Employer, Employee shall turn over to Employer upon demand all such equipment and\nproperty provided by Employer. Employee must also return to Employer all Employer files, records and keys issued.\n5. INJUNCTIVE RELIEF\nEmployee and Employer agree that any breach by Employee of the covenants and agreements contained in any Section of this Agreement will\nresult in irreparable injury to Employer for which money damages could not adequately compensate Employer and therefore, in the event of any\nsuch breach, Employer shall be entitled (in addition to any other rights or remedies which Employer may have at law or in equity, including\nmoney damages) to have an injunction issued by any competent court of equity enjoining and restraining Employee and/or any other person\ninvolved therein from continuing such breach. If Employer resorts to the courts for the enforcement of any of the covenants or agreements\ncontained herein, or if such covenants or agreements are otherwise the subject of litigation between the parties, Employee shall be liable for\nEmployer's reasonable attorneys' fees and legal expenses, and then any limiting term of such covenants and agreements shall be extended for a\nperiod of time equal to the period of such breach, which extension shall commence on the later of (a) the date of which the original (unextended)\nterm of such\ncovenants and agreements is scheduled to terminate or (b) the date that the final court (without further right of appeal) enforces such covenant or\nagreement.\n6. CONTINUING EFFECT OF OTHER PROVISIONS IN EVENT OF PARTIAL INVALIDITY\nEmployee further agrees that a breach of any agreement, whether written or oral, between Employer and Employee or any other actionable\nconduct by Employee, or any defense, set-off or counterclaim by Employee against Employer, or any other related rights Employee has against\nEmployer will have no effect on any or all of the terms and provisions of the restrictive covenants and other agreements contained herein or on\ntheir enforceability and validity. If any portion of the covenants or agreements contained in this Agreement, or the application thereof, is\nconstrued to be invalid or unenforceable then the other portions of such covenants or agreements or the application thereof shall not be affected\nand shall be given full force and effect without regard to the invalid or unenforceable portions. If any covenant or agreement therein is held to be\nunenforceable because of the area covered or the duration thereof, such covenant or agreement shall then be enforceable in its reduced form. If\nany of the provisions hereof violate or contravene the applicable laws of any jurisdiction, such provisions shall be deemed not to be a part of this\nAgreement with respect to such jurisdiction only, and the remainder of this Agreement shall remain in full force and effect in such jurisdiction\nand this entire Agreement shall remain in full force and effect in all other jurisdictions.\n7. BENEFIT TO SUCCESSORS OF EMPLOYER AND APPLICABLE LAW\nThis Agreement shall inure to the benefit of Employer and its successors and assigns. If any action at law or in equity is necessary to enforce or\ninterpret the terms of this Agreement, Employer shall be entitled to reasonable attorneys' fees, costs, and necessary disbursements if Employer\nprevails in such action. This Agreement shall be construed and enforced in accordance with the laws of the New York State. If required by the\ncontext of this Agreement, singular language shall be construed as plural, plural language shall be construed as singular, and the gender of\npersonal pronouns shall be construed as masculine, feminine or neuter. This Agreement supplements and does not supersede and is in no way in\ndiminution of any other agreements(s), entered into by Employee regarding the subject matter hereof or containing provisions the same as or\nsimilar in nature hereto, and this Agreement and all such agreements shall remain in full force and effect, independent of one another, and the\nprovisions most restrictive to Employee of this Agreement and all such agreements shall be the controlling provisions that are applicable to\nEmployee.\nEmployee represents, warrants and covenants that employee is not a party to or bound by any agreement with any third person or entity and/or is\nnot otherwise bound by law which would in any way restrict, inhibit or limit Employee's ability to fully render and perform all services requested\nby Employer, including but not limited to, fully contacting and dealing with all customers and suppliers in all marketplaces, fully advising\nEmployer about processes and methods, fully using and disclosing all information about suppliers, customers, processes and methods of which\nEmployee may have knowledge, and keeping Employer fully informed of such, and/or which would in any way restrict, inhibit or limit\nEmployee’s ability to fully compete with any third person or entity seeking in any way to restrict, inhibit or limit Employee from fully rendering\nand performing all services requested by Employer, including but not limited to, those set forth above, and/or seeking damages as a result\nthereof. Employee hereby agrees to indemnify and hold harmless Employer from any and all claims, liabilities, losses, damages and/or expenses\nwith respect thereto including but not limited to reasonable attorneys' fees. Employee hereby acknowledges that he fully understands that\nEmployer's employment of Employee is conditioned upon Employee's ability to fully render and perform all services requested of him without\nany restriction, hindrance or limit by any third person or entity.\nIN WITNESS WHEREOF, Employee has executed this Agreement with intent to be legally bound as of the day and year first above written.\nEMPLOYEE:\n/s/ Gavin Brandon\nBy: Gavin Brandon
+6c0e2103cb185f28b0c1e9109c674836.pdf	effective_date jurisdiction party term	EX-10.12 26 dex1012.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (MICHAEL\nWEINHOLD)\nExhibit 10.12\nExecutive Employees\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Competition Agreement (“Agreement”) is entered into by and between Verso Paper Holdings LLC, a Delaware\nlimited liability company (“Verso Paper”), and Michael Weinhold (“Employee”), to allow Employee to have access to certain valuable competitive\ninformation and business relationships of Verso Paper while also providing protection for such information and relationships.\nWHEREAS, Verso Paper is willing to employ Employee in the position of Vice President, General Counsel and Secretary, and Employee is\nwilling to accept such employment upon the terms and conditions set forth herein; and,\nWHEREAS, Verso Paper is willing to provide Employee with certain benefits, as set forth herein, even after the employment relationship with\nEmployee has ended in order to protect its valuable competitive information and business relationships; and\nWHEREAS, after having ample opportunity to discuss, negotiate, and revise as necessary, the parties are willing to enter into this Agreement;\nNOW, THEREFORE, the parties hereto agree as follows:\n1. Definitions\n(a) As used in this Agreement, the term “Protected Information” shall mean all information, documents or materials, owned, developed\nor possessed by Verso Paper or any employee while in the employ of Verso Paper, whether in tangible or intangible form, which (i) Verso\nPaper takes reasonable measures to maintain in secrecy, and (ii) pertains in any manner to Verso Paper’s business, including but not\nlimited to Research and Development (as defined below); customers or prospective customers, targeted national accounts, or strategies\nor data for identifying and satisfying their needs; present or prospective business relationships; present, short term, or long term strategic\nplans; acquisition candidates; plans for corporate restructuring; products under consideration or development; cost, margin or profit\ninformation; data from which any of the foregoing types of information could be derived; human resources (including compensation\ninformation and internal evaluations of the performance, capability and potential of Verso Paper employees); business methods, data\nbases and computer programs.\n“Research and Development” shall include, but not be limited to (i) all short term and long term basic, applied and developmental\nresearch and technical assistance and specialized research support of customers or active prospects, targeted national accounts, of Verso\nPaper operating divisions; (ii) information relating to manufacturing and converting processes, methods, techniques and equipment and\nthe improvements and innovations relating to\nsame; quality control procedures and equipment; identification, selection, generation and propagation of tree species having improved\ncharacteristics; forest resource management; innovation and improvement to manufacturing and converting processes such as shipping,\npulping bleaching chemical recovery papermaking, coating and calendaring processes and in equipment for use in such processes;\nreduction and remediation of environmental discharges; minimization or elimination of solid and liquid waste; use and optimization of\nraw materials in manufacturing processes; recycling and manufacture paper products; recycling of other paper or pulp products; energy\nconservation; computer software and application of computer controls to manufacturing and quality control operations and to inventory\ncontrol; radio frequency identification and its use in paper and packaging products; and product process improvement development or\nevaluation; and (iii) information about methods, techniques, products equipment, and processes which Verso Paper has learned do not\nwork or do not provide beneficial results (“negative know-how”) as well as those which do work which provide beneficial results.\nThe fact that individual elements of the information that constitutes Protected Information may be generally known does not prevent an\nintegrated compilation of information, whether or not reduced to writing, from being Protected Information if that integrated whole is not\ngenerally known.\n(b) As used in this Agreement, the term “Unauthorized” shall mean: (i) in contravention of Verso Paper’s policies or procedures;\n(ii) otherwise inconsistent with Verso Paper’s measures to protect its interests in the Protected Information; (iii) in contravention of any\nlawful instruction or directive, either written or oral, of an Verso Paper employee empowered to issue such instruction or directive;\n(iv) in contravention of any duty existing under law or contract; or (v) to the detriment of Verso Paper.\n2. Confidentiality Provisions\n(a) Employee acknowledges and agrees that by reason of employment with Verso Paper as a senior level executive in the position of\nSenior Vice President, Sales and Marketing, Employee has been and will be entrusted with Protected Information and may develop\nProtected Information, that such information is valuable and useful to Verso Paper, that it would also be valuable and useful to\ncompetitors and others who do not know it and that such information constitutes confidential and proprietary trade secrets of Verso\nPaper. While an employee or consultant of Verso Paper, or at any time thereafter, regardless of the reasons for leaving Verso Paper,\nEmployee agrees not to use or disclose, directly or indirectly, any Protected Information in an Unauthorized manner or for any\nUnauthorized purpose unless such information shall have become generally known in the relevant industry or independently developed\nwith no assistance from Employee. Further, promptly upon termination, for any reason, of Employee’s employment with Verso Paper or\nupon the request of Verso Paper Employee agrees to deliver to Verso Paper all property and materials and copies thereof within\nEmployee’s possession or control which belong to Verso Paper or which contain Protected Information and to permanently delete upon\nVerso Paper’s request all Protected Information from any computers or other electronic storage media Employee owns or uses.\n(b) While an employee of Verso Paper and after termination of Employee’s employment with Verso Paper for any reason Employee\nagrees not to take any actions which would constitute or facilitate the Unauthorized use or disclosure of Protected Information including\ntransmitting or posting such Protected Information on the internet, anonymously or otherwise. Employee further agrees to take all\nreasonable measures to prevent Unauthorized use and disclosure of Protected Information and to prevent Unauthorized persons or\nentities from obtaining or using Protected Information.\n(c) If Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, investigation, demand, order\nor similar process) to disclose any Protected Information, then before any such disclosure may be made, Employee shall immediately\nnotify Verso Paper thereof and, at Verso Paper’s expense, shall consult with Verso Paper on the advisability of taking steps to resist or\nnarrow such request and cooperate with Verso Paper in any attempt to obtain a protective order or other appropriate remedy or assurance\nthat the Protected Information will be afforded confidential treatment. If such protective order or other appropriate remedy is not\nobtained, Employee shall furnish only that portion of the Protected Information that it is advised by legal counsel is legally required to be\nfurnished.\n3. Non-compete provisions\n(a) Employee acknowledges and agrees that, the business of Verso Paper and its customers is worldwide in scope, Verso Paper’s\ncompetitors and customers are located throughout the world, and Verso Paper’s strategic planning and Research and Development\nactivities have application throughout the world and are for the benefit of customers and Verso Paper’s business throughout the world,\nand therefore, the restrictions on the Employee’s competition after employment as described below apply to anywhere in the world in\nwhich Verso Paper or its subsidiaries are doing business. Employee acknowledges that any such competition within that geographical\nscope will irreparably injure Verso Paper. Employee acknowledges and agrees that, for that reason, the prohibitions on competition\ndescribed below are reasonably tailored to protect Verso Paper.\n(b) While an employee or consultant of Verso Paper, Employee agrees not to compete in any manner, either directly or indirectly whether\nfor compensation or otherwise with Verso Paper or to assist any other person or entity to compete with Verso Paper in the business of\ncoated and super-calendared paper products or the operation of coated and super-calendared paper mills anywhere in the world.\n(c) After the termination of employment for any reason, Employee agrees that for a period of twelve (12) months (the “Non-Compete\nPeriod”) following such termination Employee will not compete with Verso Paper anywhere in the world in which Verso Paper or its\nsubsidiaries are doing business:\n(i.) By producing, developing, selling or marketing, or assisting others to produce, develop, sell or market in the business of\ncoated\nand super-calendared paper products or the operation of coated and super-calendared paper mills;\n(ii.) By engaging in any sales, marketing, Research and Development or managerial duties (including, without limitation,\nfinancial, human resources, strategic planning, or operational duties) for, whether as an employee, consultant, or otherwise, any\nentity which produces, develops, sells or markets in the business of coated and super-calendared paper products or the operation\nof coated and super-calendared paper mills;\n(iii.) By owning, managing, operating, controlling or consulting for any entity which produces, develops, sells or markets in the\nbusiness of coated and super-calendared paper products or the operation of coated and super-calendared paper mills, provided\nthat this section 3(c)(iii) shall not prohibit Employee from being a passive owner of not more than two percent (2%) of the\noutstanding stock of any class of a corporation that is publicly traded, so long as Employee has no active participation in the\nbusiness of such corporation; or\n(iv.) By soliciting the business of any actual or active prospective customers, or targeted national accounts of Verso Paper for any\nproduct, process or service which is competitive with the products, processes, or services of Verso Paper, namely any products,\nprocesses or services of the business of coated and super-calendared paper products or the operation of coated and super-\ncalendared paper mills, whether existing or contemplated for the future, on which Employee has worked, or concerning which\nEmployee has in any manner acquired knowledge or Protected Information about, during the twenty four (24) months preceding\ntermination of Employee’s employment.\nIt shall not be a violation of this provision for Employee to accept employment with a non-competitive division or business unit\nof a multi-divisional company some of whose divisions or business units are competitors of Verso Paper, so long as Employee\ndoes not engage in, oversee, provide input or information regarding, or participate in any manner in the activities described in this\nparagraph as they relate to the division or business unit which is a competitor of Verso Paper. Employee shall not assist others in\nengaging in activities which Employee is not permitted to take.\n(d) Verso Paper and Employee agree that, during the Non-Compete Period, if Employee is unable, despite diligent search, to obtain\nemployment consistent with Employee’s experience and education, Employee shall so notify Verso Paper in writing, describing in detail\nthe efforts Employee has made to secure such employment that does not conflict with Employee’s non-compete obligations. Upon\nreceipt and reasonable verification of the information contained in such notice, and provided that Employee complies with all his\nobligations under this Agreement (including, without limitation, his obligations under sections 2, 3(c) and 4), Verso Paper shall make\nmonthly payments to Employee equal to the monthly base pay Employee was receiving from Verso Paper in the month prior to the\ntermination of employment with Verso Paper for each month (or prorated for periods less\nthan a month) of such unemployment during the Non-Compete Period. Before the close of each month for which Employee seeks such\npayment, Employee shall advise Verso Paper in writing of Employee’s efforts to obtain non-competitive employment and shall certify\nthat although Employee diligently sought such employment, Employee was unable to obtain it.\n4. Non-Solicitation/Non-hire provision\nDuring the term of Employee’s employment at Verso Paper and for twelve (12) months following the termination, for any reason, of\nemployment, Employee agrees that Employee will not, either on Employee’s own behalf or on behalf of any other person or entity,\ndirectly or indirectly, hire, solicit, retain or encourage to leave the employ of Verso Paper (or assist any other person or entity in hiring,\nsoliciting, retaining or encouraging) any person who is then or was within six (6) months of the date of such hiring an employee of Verso\nPaper.\n5. Tolling period of Restrictions\nEmployee agrees that the periods of non-competition and non-solicitation set forth in sections 3 and 4 of this Agreement shall be\nextended by the period of violation if Employee is found to be in violation of those provisions.\n6. Duty to show agreement to prospective employer.\nDuring Employee’s employment with Verso Paper and for twelve (12) months thereafter, Employee shall, prior to accepting other\nemployment, provide a copy of this Agreement to any recruiter who assists Employee in locating employment other than with Verso\nPaper and to any prospective employer with which Employee discusses potential employment.\n7. Representations, Warranties and Acknowledgements\nIn addition to the representations, warranties and obligations set forth throughout this Agreement, Employee acknowledges that\n(a) Protected Information is commercially and competitively valuable to Verso Paper and critical to its success; (b) the Unauthorized use\nor disclosure of Protected Information or the violation of the covenants set forth in sections 2, 3, or 4 would cause irreparable harm to\nVerso Paper; (c) by this Agreement, Verso Paper is taking reasonable steps to protect its legitimate interests in its Protected Information;\n(d) Employee has developed or will develop legally unique relationships with customers of Verso Paper; and (e) nothing herein shall\nprohibit Verso Paper from pursuing any remedies whether in law or equity, available to Verso Paper for breach or threatened breach of\nthis Agreement. Employee further acknowledges and agrees that as a senior executive of Verso Paper Employee performs unique and\nvaluable services to Verso Paper of an intellectual character and that Employee’s services will be difficult for Verso Paper to replace.\nEmployee further acknowledges and agrees that Verso Paper is providing Employee with significant consideration in this Agreement for\nentering into the Agreement and that Verso Paper’s remedies for any breach of this Agreement are in addition to and not in place of any\nother remedies Verso Paper may have at law or equity or under any other agreements.\n8. Section 409A of the Code\nThe parties hereto acknowledge and agree that, to the extent applicable, this Agreement shall be interpreted in accordance with, and\nincorporate the terms and conditions required by, Section 409A of the Internal Revenue Code of 1986, as amended, and the Department\nof Treasury Regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other\nguidance that may be issued after the date hereof (“Section 409A”). Notwithstanding any provision of this Agreement to the contrary, in\nthe event that Verso Paper determines that any amounts payable hereunder will be immediately taxable to Employee under Section 409A,\nVerso Paper and Employee shall cooperate in good faith to (a) adopt such amendments to this Agreement and appropriate policies and\nprocedures, including amendments and policies with retroactive effect, that they mutually determine to be necessary or appropriate to\npreserve the intended tax treatment of the benefits provided by this Agreement, to preserve the economic benefits of this Agreement, and\nto avoid less favorable accounting or tax consequences for Verso Paper and/or (b) take such other actions as mutually determined to be\nnecessary or appropriate to exempt any amounts payable hereunder from Section 409A or to comply with the requirements of\nSection 409A and thereby avoid the application of penalty taxes thereunder.\n9. General\n(a) Employee acknowledges and agrees that the parties have attempted to limit Employee’s right to compete only to the extent necessary\nto protect Verso Paper from unfair competition and protect the legitimate interests of Verso Paper. If any provision or clause of this\nAgreement or portion thereof shall be held by any court of competent jurisdiction to be illegal, void or unenforceable in such\njurisdiction, the remainder of such provisions shall not thereby be affected and shall be given full effect, without regard to the invalid\nportion. It is the intention of the parties and Employee agrees, that if any court construes any provision or clause of this Agreement or\nany portion thereof to be illegal, void or unenforceable because of the duration of such provision or the area or matter covered thereby,\nsuch court shall reduce the duration, area or matter of such provision and in its reduced form, such provision shall then be enforceable\nand shall be enforced.\n(b) Employee acknowledges that neither this Agreement nor any provision hereof can be modified, abrogated or waived except in a\nwritten document signed by the Vice President of Human Resource or the President and Chief Executive Officer of Verso Paper, or in the\nevent of the absence of either of these executives, or the vacancy of either of these positions, such other officer of Verso Paper as Verso\nPaper’s Board of Directors shall designate in writing.\n(c) This Agreement shall be governed by and in accordance with the laws and public policies of the State of Delaware.\n(d) Employee hereby consents to the jurisdiction of and agrees that any claim arising out of or relating to this Agreement may be brought\nin the courts of the State of Delaware.\n(e) This Agreement and any rights thereunder may be assigned by Verso Paper and if so assigned shall operate to protect the Protected\nInformation and relationships of Verso Paper as well as such information and relationships of the assignee.\n(f) Attorney’s fees. Should either party to this Agreement breach any of the terms of this Agreement, that party shall pay to the non-\ndefaulting party all of the non-defaulting party’s costs and expenses, including attorney’s and experts’ fees in enforcing the provisions of\nthe Agreement as to which a breach is found.\n(g) Employee agrees that Verso Paper’s determination not to enforce this or similar agreements as to specific violations shall not operate\nas a waiver or release of Employee’s obligations under this Agreement.\n(h) Common law duties. Employee understands that Employee owes fiduciary and common law duties to Verso Paper in addition to the\ncovenants set forth above prohibiting the misuse or disclosure of trade secrets or confidential information and the unlawful interference\nwith Verso Paper’s business and customer relationships.\n(i) Opportunity to review. Employee acknowledges and agrees that Verso Paper has advised Employee that Employee may consult with\nan independent attorney before signing this Agreement.\nIn witness whereof the parties hereto have caused this Agreement to be executed and delivered effective as of the date signed below by Employee\nand the duly authorized officer of Verso Paper.\nSigned (Employee):\n/s/ Michael Weinhold\nMichael Weinhold, Senior Vice President, Sales and Marketing\nDate:\n3/19/07\nWork address:\nVerso Paper:\n/s/ Ricardo Moncada\nRicardo Moncada, Vice President, Human Resources\nDate:\n3/19/07	EX-10.12 26 dex1012.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (MICHAEL\nWEINHOLD)\nExhibit 10.12\nExecutive Employees\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Competition Agreement (“Agreement”) is entered into by and between Verso Paper Holdings LLC, a Delaware\nlimited liability company (“Verso Paper”), and Michael Weinhold (“Employee”), to allow Employee to have access to certain valuable competitive\ninformation and business relationships of Verso Paper while also providing protection for such information and relationships.\nWHEREAS, Verso Paper is willing to employ Employee in the position of Vice President, General Counsel and Secretary, and Employee is\nwilling to accept such employment upon the terms and conditions set forth herein; and,\nWHEREAS, Verso Paper is willing to provide Employee with certain benefits, as set forth herein, even after the employment relationship with\nEmployee has ended in order to protect its valuable competitive information and business relationships; and\nWHEREAS, after having ample opportunity to discuss, negotiate, and revise as necessary, the parties are willing to enter into this Agreement;\nNOW, THEREFORE, the parties hereto agree as follows:\n1. Definitions\n(a) As used in this Agreement, the term “Protected Information” shall mean all information, documents or materials, owned, developed\nor possessed by Verso Paper or any employee while in the employ of Verso Paper, whether in tangible or intangible form, which (i) Verso\nPaper takes reasonable measures to maintain in secrecy, and (ii) pertains in any manner to Verso Paper’s business, including but not\nlimited to Research and Development (as defined below); customers or prospective customers, targeted national accounts, or strategies\nor data for identifying and satisfying their needs; present or prospective business relationships; present, short term, or long term strategic\nplans; acquisition candidates; plans for corporate restructuring; products under consideration or development; cost, margin or profit\ninformation; data from which any of the foregoing types of information could be derived; human resources (including compensation\ninformation and internal evaluations of the performance, capability and potential of Verso Paper employees); business methods, data\nbases and computer programs.\n“Research and Development” shall include, but not be limited to (i) all short term and long term basic, applied and developmental\nresearch and technical assistance and specialized research support of customers or active prospects, targeted national accounts, of Verso\nPaper operating divisions; (ii) information relating to manufacturing and converting processes, methods, techniques and equipment and\nthe improvements and innovations relating to\nsame; quality control procedures and equipment; identification, selection, generation and propagation of tree species having improved\ncharacteristics; forest resource management; innovation and improvement to manufacturing and converting processes such as shipping,\npulping bleaching chemical recovery papermaking, coating and calendaring processes and in equipment for use in such processes;\nreduction and remediation of environmental discharges; minimization or elimination of solid and liquid waste; use and optimization of\nraw materials in manufacturing processes; recycling and manufacture paper products; recycling of other paper or pulp products; energy\nconservation; computer software and application of computer controls to manufacturing and quality control operations and to inventory\ncontrol; radio frequency identification and its use in paper and packaging products; and product process improvement development or\nevaluation; and (iii) information about methods, techniques, products equipment, and processes which Verso Paper has learned do not\nwork or do not provide beneficial results (“negative know-how”) as well as those which do work which provide beneficial results.\nThe fact that individual elements of the information that constitutes Protected Information may be generally known does not prevent an\nintegrated compilation of information, whether or not reduced to writing, from being Protected Information if that integrated whole is not\ngenerally known.\n(b) As used in this Agreement, the term “Unauthorized” shall mean: (i) in contravention of Verso Paper’s policies or procedures;\n(ii) otherwise inconsistent with Verso Paper’s measures to protect its interests in the Protected Information; (iii) in contravention of any\nlawful instruction or directive, either written or oral, of an Verso Paper employee empowered to issue such instruction or directive;\n(iv) in contravention of any duty existing under law or contract; or (v) to the detriment of Verso Paper.\nConfidentiality Provisions\n(a) Employee acknowledges and agrees that by reason of employment with Verso Paper as a senior level executive in the position of\nSenior Vice President, Sales and Marketing, Employee has been and will be entrusted with Protected Information and may develop\nProtected Information, that such information is valuable and useful to Verso Paper, that it would also be valuable and useful to\ncompetitors and others who do not know it and that such information constitutes confidential and proprietary trade secrets of Verso\nPaper. While an employee or consultant of Verso Paper, or at any time thereafter, regardless of the reasons for leaving Verso Paper,\nEmployee agrees not to use or disclose, directly or indirectly, any Protected Information in an Unauthorized manner or for any\nUnauthorized purpose unless such information shall have become generally known in the relevant industry or independently developed\nwith no assistance from Employee. Further, promptly upon termination, for any reason, of Employee’s employment with Verso Paper or\nupon the request of Verso Paper Employee agrees to deliver to Verso Paper all property and materials and copies thereof within\nEmployee’s possession or control which belong to Verso Paper or which contain Protected Information and to permanently delete upon\nVerso Paper’s request all Protected Information from any computers or other electronic storage media Employee owns or uses.\n(b) While an employee of Verso Paper and after termination of Employee’s employment with Verso Paper for any reason Employee\nagrees not to take any actions which would constitute or facilitate the Unauthorized use or disclosure of Protected Information including\ntransmitting or posting such Protected Information on the internet, anonymously or otherwise. Employee further agrees to take all\nreasonable measures to prevent Unauthorized use and disclosure of Protected Information and to prevent Unauthorized persons or\nentities from obtaining or using Protected Information.\n(c) If Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, investigation, demand, order\nor similar process) to disclose any Protected Information, then before any such disclosure may be made, Employee shall immediately\nnotify Verso Paper thereof and, at Verso Paper’s expense, shall consult with Verso Paper on the advisability of taking steps to resist or\nnarrow such request and cooperate with Verso Paper in any attempt to obtain a protective order or other appropriate remedy or assurance\nthat the Protected Information will be afforded confidential treatment. If such protective order or other appropriate remedy is not\nobtained, Employee shall furnish only that portion of the Protected Information that it is advised by legal counsel is legally required to be\nfurnished.\nNon-compete provisions\n(a) Employee acknowledges and agrees that, the business of Verso Paper and its customers is worldwide in scope, Verso Paper’s\ncompetitors and customers are located throughout the world, and Verso Paper’s strategic planning and Research and Development\nactivities have application throughout the world and are for the benefit of customers and Verso Paper’s business throughout the world,\nand therefore, the restrictions on the Employee’s competition after employment as described below apply to anywhere in the world in\nwhich Verso Paper or its subsidiaries are doing business. Employee acknowledges that any such competition within that geographical\nscope will irreparably injure Verso Paper. Employee acknowledges and agrees that, for that reason, the prohibitions on competition\ndescribed below are reasonably tailored to protect Verso Paper.\n(b) While an employee or consultant of Verso Paper, Employee agrees not to compete in any manner, either directly or indirectly whether\nfor compensation or otherwise with Verso Paper or to assist any other person or entity to compete with Verso Paper in the business of\ncoated and super-calendared paper products or the operation of coated and super-calendared paper mills anywhere in the world.\n(c) After the termination of employment for any reason, Employee agrees that for a period of twelve (12) months (the “Non-Compete\nPeriod”) following such termination Employee will not compete with Verso Paper anywhere in the world in which Verso Paper or its\nsubsidiaries are doing business:\n(i.) By producing, developing, selling or marketing, or assisting others to produce, develop, sell or market in the business of\ncoated\nand super-calendared paper products or the operation of coated and super-calendared paper mills;\n(ii.) By engaging in any sales, marketing, Research and Development or managerial duties (including, without limitation,\nfinancial, human resources, strategic planning, or operational duties) for, whether as an employee, consultant, or otherwise, any\nentity which produces, develops, sells or markets in the business of coated and super-calendared paper products or the operation\nof coated and super-calendared paper mills;\n(iii.) By owning, managing, operating, controlling or consulting for any entity which produces, develops, sells or markets in the\nbusiness of coated and super-calendared paper products or the operation of coated and super-calendared paper mills, provided\nthat this section 3(c)(iii) shall not prohibit Employee from being a passive owner of not more than two percent (2%) of the\noutstanding stock of any class of a corporation that is publicly traded, so long as Employee has no active participation in the\nbusiness of such corporation; or\n(iv.) By soliciting the business of any actual or active prospective customers, or targeted national accounts of Verso Paper for any\nproduct, process or service which is competitive with the products, processes, or services of Verso Paper, namely any products,\nprocesses or services of the business of coated and super-calendared paper products or the operation of coated and super-\ncalendared paper mills, whether existing or contemplated for the future, on which Employee has worked, or concerning which\nEmployee has in any manner acquired knowledge or Protected Information about, during the twenty four (24) months preceding\ntermination of Employee’s employment.\nIt shall not be a violation of this provision for Employee to accept employment with a non-competitive division or business unit\nof a multi-divisional company some of whose divisions or business units are competitors of Verso Paper, so long as Employee\ndoes not engage in, oversee, provide input or information regarding, or participate in any manner in the activities described in this\nparagraph as they relate to the division or business unit which is a competitor of Verso Paper. Employee shall not assist others in\nengaging in activities which Employee is not permitted to take.\n(d) Verso Paper and Employee agree that, during the Non-Compete Period, if Employee is unable, despite diligent search, to obtain\nemployment consistent with Employee’s experience and education, Employee shall so notify Verso Paper in writing, describing in detail\nthe efforts Employee has made to secure such employment that does not conflict with Employee’s non-compete obligations. Upon\nreceipt and reasonable verification of the information contained in such notice, and provided that Employee complies with all his\nobligations under this Agreement (including, without limitation, his obligations under sections 2, 3(c) and 4), Verso Paper shall make\nmonthly payments to Employee equal to the monthly base pay Employee was receiving from Verso Paper in the month prior to the\ntermination of employment with Verso Paper for each month (or prorated for periods less\nthan a month) of such unemployment during the Non-Compete Period. Before the close of each month for which Employee seeks such\npayment, Employee shall advise Verso Paper in writing of Employee’s efforts to obtain non-competitive employment and shall certify\nthat although Employee diligently sought such employment, Employee was unable to obtain it.\nNon-Solicitation/Non-hire provision\nDuring the term of Employee’s employment at Verso Paper and for twelve (12) months following the termination, for any reason, of\nemployment, Employee agrees that Employee will not, either on Employee’s own behalf or on behalf of any other person or entity,\ndirectly or indirectly, hire, solicit, retain or encourage to leave the employ of Verso Paper (or assist any other person or entity in hiring,\nsoliciting, retaining or encouraging) any person who is then or was within six (6) months of the date of such hiring an employee of Verso\nPaper.\nTolling period of Restrictions\nEmployee agrees that the periods of non-competition and non-solicitation set forth in sections 3 and 4 of this Agreement shall be\nextended by the period of violation if Employee is found to be in violation of those provisions.\nDuty to show agreement to prospective employer.\nDuring Employee’s employment with Verso Paper and for twelve (12) months thereafter, Employee shall, prior to accepting other\nemployment, provide a copy of this Agreement to any recruiter who assists Employee in locating employment other than with Verso\nPaper and to any prospective employer with which Employee discusses potential employment.\nRepresentations, Warranties and Acknowledgements\nIn addition to the representations, warranties and obligations set forth throughout this Agreement, Employee acknowledges that\n(a) Protected Information is commercially and competitively valuable to Verso Paper and critical to its success; (b) the Unauthorized use\nor disclosure of Protected Information or the violation of the covenants set forth in sections 2, 3, or 4 would cause irreparable harm to\nVerso Paper; (c) by this Agreement, Verso Paper is taking reasonable steps to protect its legitimate interests in its Protected Information;\n(d) Employee has developed or will develop legally unique relationships with customers of Verso Paper; and (e) nothing herein shall\nprohibit Verso Paper from pursuing any remedies whether in law or equity, available to Verso Paper for breach or threatened breach of\nthis Agreement. Employee further acknowledges and agrees that as a senior executive of Verso Paper Employee performs unique and\nvaluable services to Verso Paper of an intellectual character and that Employee’s services will be difficult for Verso Paper to replace.\nEmployee further acknowledges and agrees that Verso Paper is providing Employee with significant consideration in this Agreement for\nentering into the Agreement and that Verso Paper’s remedies for any breach of this Agreement are in addition to and not in place of any\nother remedies Verso Paper may have at law or equity or under any other agreements.\nSection 409A of the Code\nThe parties hereto acknowledge and agree that, to the extent applicable, this Agreement shall be interpreted in accordance with, and\nincorporate the terms and conditions required by, Section 409A of the Internal Revenue Code of 1986, as amended, and the Department\nof Treasury Regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other\nguidance that may be issued after the date hereof (“Section 409A”). Notwithstanding any provision of this Agreement to the contrary, in\nthe event that Verso Paper determines that any amounts payable hereunder will be immediately taxable to Employee under Section 409A,\nVerso Paper and Employee shall cooperate in good faith to (a) adopt such amendments to this Agreement and appropriate policies and\nprocedures, including amendments and policies with retroactive effect, that they mutually determine to be necessary or appropriate to\npreserve the intended tax treatment of the benefits provided by this Agreement, to preserve the economic benefits of this Agreement, and\nto avoid less favorable accounting or tax consequences for Verso Paper and/or (b) take such other actions as mutually determined to be\nnecessary or appropriate to exempt any amounts payable hereunder from Section 409A or to comply with the requirements of\nSection 409A and thereby avoid the application of penalty taxes thereunder.\nGeneral\n(a) Employee acknowledges and agrees that the parties have attempted to limit Employee’s right to compete only to the extent necessary\nto protect Verso Paper from unfair competition and protect the legitimate interests of Verso Paper. If any provision or clause of this\nAgreement or portion thereof shall be held by any court of competent jurisdiction to be illegal, void or unenforceable in such\njurisdiction, the remainder of such provisions shall not thereby be affected and shall be given full effect, without regard to the invalid\nportion. It is the intention of the parties and Employee agrees, that if any court construes any provision or clause of this Agreement or\nany portion thereof to be illegal, void or unenforceable because of the duration of such provision or the area or matter covered thereby,\nsuch court shall reduce the duration, area or matter of such provision and in its reduced form, such provision shall then be enforceable\nand shall be enforced.\n(b) Employee acknowledges that neither this Agreement nor any provision hereof can be modified, abrogated or waived except in a\nwritten document signed by the Vice President of Human Resource or the President and Chief Executive Officer of Verso Paper, or in the\nevent of the absence of either of these executives, or the vacancy of either of these positions, such other officer of Verso Paper as Verso\nPaper’s Board of Directors shall designate in writing.\n(c) This Agreement shall be governed by and in accordance with the laws and public policies of the State of Delaware.\n(d) Employee hereby consents to the jurisdiction of and agrees that any claim arising out of or relating to this Agreement may be brought\nin the courts of the State of Delaware.\n(e) This Agreement and any rights thereunder may be assigned by Verso Paper and if so assigned shall operate to protect the Protected\nInformation and relationships of Verso Paper as well as such information and relationships of the assignee.\n(f) Attorney’s fees. Should either party to this Agreement breach any of the terms of this Agreement, that party shall pay to the non-\ndefaulting party all of the non-defaulting party’s costs and expenses, including attorney’s and experts’ fees in enforcing the provisions of\nthe Agreement as to which a breach is found.\n(g) Employee agrees that Verso Paper’s determination not to enforce this or similar agreements as to specific violations shall not operate\nas a waiver or release of Employee’s obligations under this Agreement.\n(h) Common law duties. Employee understands that Employee owes fiduciary and common law duties to Verso Paper in addition to the\ncovenants set forth above prohibiting the misuse or disclosure of trade secrets or confidential information and the unlawful interference\nwith Verso Paper’s business and customer relationships.\n(i) Opportunity to review. Employee acknowledges and agrees that Verso Paper has advised Employee that Employee may consult with\nan independent attorney before signing this Agreement.\nIn witness whereof the parties hereto have caused this Agreement to be executed and delivered effective as of the date signed below by Employee\nand the duly authorized officer of Verso Paper.\nSigned (Employee): /s/ Michael Weinhold\nMichael Weinhold, Senior Vice President, Sales and Marketing\nDate: 3/19/07\nWork address:\nVerso Paper: /s/ Ricardo Moncada\nRicardo Moncada, Vice President, Human Resources\nDate: 3/19/07	EX-10.12 26 dex 1012.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (MICHAEL\nWEINHOLD)\nExhibit 10.12\nExecutive Employees\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Competition Agreement ("Agreement") is entered into by and between Verso Paper Holdings LLC, a Delaware\nlimited liability company ("Verso Paper"), and Michael Weinhold ("Employee"), to allow Employee to have access to certain valuable competitive\ninformation and business relationships of Verso Paper while also providing protection for such information and relationships.\nWHEREAS, Verso Paper is willing to employ Employee in the position of Vice President, General Counsel and Secretary, and Employee is\nwilling to accept such employment upon the terms and conditions set forth herein; and,\nWHEREAS, Verso Paper is willing to provide Employee with certain benefits, as set forth herein, even after the employment relationship with\nEmployee has ended in order to protect its valuable competitive information and business relationships; and\nWHEREAS, after having ample opportunity to discuss, negotiate, and revise as necessary, the parties are willing to enter into this\nAgreement;\nNOW, THEREFORE, the parties hereto agree as follows:\n1. Definitions\n(a) As used in this Agreement, the term "Protected Information" shall mean all information, documents or materials, owned, developed\nor\npossessed by Verso Paper or any employee while in the employ of Verso Paper, whether in tangible or intangible form, which (i) Verso\nPaper takes reasonable measures to maintain in secrecy, and (ii) pertains in any manner to Verso Paper's business, including but not\nlimited to Research and Development (as defined below); customers or prospective customers, targeted national accounts, or strategies\nor data for identifying and satisfying their needs; present or prospective business relationships; present, short term, or long term strategic\nplans; acquisition candidates; plans for corporate restructuring; products under consideration or development; cost, margin or profit\ninformation; data from which any of the foregoing types of information could be derived; human resources (including compensation\ninformation and internal evaluations of the performance, capability and potential of Verso Paper employees); business methods, data\nbases and computer programs.\n"Research and Development" shall include, but not be limited to (i) all short term and long term basic, applied and developmenta\nresearch and technical assistance and specialized research support of customers or active prospects, targeted national accounts, of Verso\nPaper operating divisions; (ii) information relating to manufacturing and converting processes, methods, techniques and equipment and\nthe improvements and innovations relating to\nsame; quality control procedures and equipment; identification, selection, generation and propagation of tree species having improved\ncharacteristics; forest resource management; innovation and improvement to manufacturing and converting processes such as shipping,\npulping bleaching chemical recovery papermaking, coating and calendaring processes and in equipment for use in such processes;\nreduction and remediation of environmental discharges; minimization or elimination of solid and liquid waste; use and optimization of\nraw materials in manufacturing processes; recycling and manufacture paper products; recycling of other paper or pulp products; energy\nconservation; computer software and application of computer controls to manufacturing and quality control operations and to inventory\ncontrol; radio frequency identification and its use in paper and packaging products; and product process improvemen development or\nevaluation; and (iii) information about methods, techniques, products equipment, and processes which Verso Paper has learned do not\nwork or do not provide beneficial results ("negative know-how") as well as those which do work which provide beneficial results.\nThe fact that individual elements of the information that constitutes Protected Information may be generally known does not prevent an\nintegrated compilation of information, whether or not reduced to writing, from being Protected Information if that integrated whole is not\ngenerally known.\n(b) As used in this Agreement, the term "Unauthorized" shall mean: (i) in contravention of Verso Paper's policies or procedures;\n(ii) otherwise inconsistent with Verso Paper's measures to protect its interests in the Protected Information; (iii) in contravention of any\nlawful instruction or directive, either written or oral, of an Verso Paper employee empowered to issue such instruction or directive;\n(iv) in contravention of any duty existing under law or contract; or (v) to the detriment of Verso Paper.\n2.\nConfidentiality Provisions\n(a) Employee acknowledges and agrees that by reason of employment with Verso Paper as a senior level executive in the position of\nSenior Vice President, Sales and Marketing, Employee has been and will be entrusted with Protected Information and may develop\nProtected Information, that such information is valuable and useful to Verso Paper, that it would also be valuable and useful to\ncompetitors and others who do not know it and that such information constitutes confidential and proprietary trade secrets of Verso\nPaper. While an employee or consultant of Verso Paper, or at any time thereafter, regardless of the reasons for leaving Verso Paper,\nEmployee agrees not to use or disclose, directly or indirectly, any Protected Information in an Unauthorized manner or for any\nUnauthorized purpose unless such information shall have become generally known in the relevant industry or independently developed\nwith no assistance from Employee. Further, promptly upon termination, for any reason, of Employee's employment with Verso Paper\nor\nupon the request of Verso Paper Employee agrees to deliver to Verso Paper all property and materials and copies thereof within\nEmployee's possession or control which belong to Verso Paper or which contain Protected Information and to permanently delete upon\nVerso Paper's request all Protected Information from any computers or other electronic storage media Employee owns or uses.\n(b) While an employee of Verso Paper and after termination of Employee's employment with Verso Paper for any reason Employee\nagrees not to take any actions which would constitute or facilitate the Unauthorized use or disclosure of Protected Information including\ntransmitting or posting such Protected Information on the internet, anonymously or otherwise. Employee further agrees to take all\nreasonable measures to prevent Unauthorized use and disclosure of Protected Information and to prevent Unauthorized persons or\nentities from obtaining or using Protected Information.\n(c) If Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, investigation, demand, order\nor similar process) to disclose any Protected Information then before any such disclosure may be made, Employee shall immediately\nnotify Verso Paper thereof and, at Verso Paper's expense, shall consult with Verso Paper on the advisability of taking steps to resist or\nnarrow such request and cooperate with Verso Paper in any attempt to obtain a protective order or other appropriate remedy or assurance\nthat the Protected Information will be afforded confidential treatment. If such protective order or other appropriate remedy is not\nobtained, Employee shall furnish only that portion of the Protected Information that it is advised by legal counsel is legally required to be\nfurnished.\n3.\nNon-compete provisions\n(a) Employee acknowledges and agrees that, the business of Verso Paper and its customers is worldwide in scope, Verso Paper's\ncompetitors and customers are located throughout the world, and Verso Paper's strategic planning and Research and Development\nactivities have application throughout the world and are for the benefit of customers and Verso Paper's business throughout the world,\nand therefore, the restrictions on the Employee's competition after employment as described below apply to anywhere in the world in\nwhich Verso Paper or its subsidiaries are doing business. Employee acknowledges that any such competition within that geographical\nscope will irreparably injure Verso Paper. Employee acknowledges and agrees that, for that reason, the prohibitions on competition\ndescribed below are reasonably tailored to protect Verso Paper.\n(b)\nWhile an employee or consultant of Verso Paper, Employee agrees not to compete in any manner, either directly or indirectly whether\nfor compensation or otherwise with Verso Paper or to assist any other person or entity to compete with Verso Paper in the business of\ncoated and super-calendared paper products or the operation of coated and super-calendared paper mills anywhere in the world.\n(c) After the termination of employment for any reason, Employee agrees that for a period of twelve (12) months (the "Non-Compete\nPeriod") following such termination Employee will not compete with Verso Paper anywhere in the world in which Verso Paper or its\nsubsidiaries are doing business:\n(i.) By producing, developing, selling or marketing, or assisting others to produce, develop, sell or market in the business of\ncoated\nand super-calendared paper products or the operation of coated and super-calendared paper mills;\n(ii.) By engaging in any sales, marketing, Research and Development or managerial duties (including, without limitation,\nfinancial, human resources, strategic planning, or operational duties) for, whether as an employee, consultant, or otherwise, any\nentity which produces, develops, sells or markets in the business of coated and super-calendared paper products or the operation\nof coated and super-calendared paper mills;\n(iii.) By owning, managing, operating, controlling or consulting for any entity which produces, develops, sells or markets in the\nbusiness of coated and super-calendared paper products or the operation of coated and super-calendared paper mills, provided\nthat this section 3(c)(iii) shall not prohibit Employee from being a passive owner of not more than two percent (2%) of the\noutstanding stock of any class of a corporation that is publicly traded, so long as Employee has no active participation in the\nbusiness of such corporation; or\n(iv.) By soliciting the business of any actual or active prospective customers, or targeted national accounts of Verso Paper for any\nproduct, process or service which is competitive with the products, processes, or services of Verso Paper, namely any products,\nprocesses or services of the business of coated and super-calendared paper products or the operation of coated and super-\ncalendared paper mills, whether existing or contemplated for the future, on which Employee has worked, or concerning which\nEmployee has in any manner acquired knowledge or Protected Information about, during the twenty four (24) months preceding\ntermination of Employee's employment.\nIt shall not be a violation of this provision for Employee to accept employment with a non-competitive division or business unit\nof a multi-divisional company some of whose divisions or business units are competitors of Verso Paper, so long as Employee\ndoes not engage in, oversee, provide input or information regarding, or participate in any manner in the activities described in this\nparagraph as they relate to the division or business unit which is a competitor of Verso Paper. Employee shall not assist others in\nengaging in activities which Employee is not permitted to take.\n(d) Verso Paper and Employee agree that, during the Non-Compete Period, if Employee is unable, despite diligent search, to obtain\nemployment consistent with Employee's experience and education, Employee shall so notify Verso Paper in writing, describing in detail\nthe efforts Employee has made to secure such employment that does not conflict with Employee's non-compete obligations. Upon\nreceipt and reasonable verification of the information contained in such notice, and provided that Employee complies with all his\nobligations under this Agreement (including, without limitation, his obligations under sections 2, 3(c) and 4), Verso Paper shall make\nmonthly payments to Employee equal to the monthly base pay Employee was receiving from Verso Paper in the month prior to the\ntermination of employment with Verso Paper for each month (or prorated for periods less\nthan a month) of such unemployment during the Non-Compete Period. Before the close of each month for which Employee seeks such\npayment, Employee shall advise Verso Paper in writing of Employee's efforts to obtain non-competitive employment and shall certify\nthat although Employee diligently sought such employment, Employee was unable to obtain it.\n4.\nNon-Solicitation/Non-hire provision\nDuring the term of Employee's employment at Verso Paper and for twelve (12) months following the termination, for any reason, of\nemployment, Employee agrees that Employee will not, either on Employee's own behalf or on behalf of any other person or entity,\ndirectly or indirectly, hire, solicit, retain or encourage to leave the employ of Verso Paper (or assist any other person or entity in hiring,\nsoliciting, retaining or encouraging) any person who is then or was within six (6) months of the date of such hiring an employee of Verso\nPaper.\n5.\nTolling period of Restrictions\nEmployee agrees that the periods of non-competition and non-solicitation set forth in sections 3 and 4 of this Agreement shall be\nextended by the period of violation if Employee is found to be in violation of those provisions.\n6.\nDuty to show agreement to prospective employer.\nDuring Employee's employment with Verso Paper and for twelve (12) months thereafter, Employee shall, prior to accepting other\nemployment, provide a copy of this Agreement to any recruiter who assists Employee in locating employment other than with Verso\nPaper and to any prospective employer with which Employee discusses potential employment.\n7.\nRepresentations, Warranties and Acknowledgements\nIn addition to the representations, warranties and obligations set forth throughout this Agreement, Employee acknowledges that\n(a) Protected Information is commercially and competitively valuable to Verso Paper and critical to its success; (b) the Unauthorized\nuse\nor disclosure of Protected Information or the violation of the covenants set forth in sections 2, 3, or 4 would cause irreparable harm to\nVerso Paper; (c) by this Agreement, Verso Paper is taking reasonable steps to protect its legitimate interests in its Protected Information;\n(d) Employee has developed or will develop legally unique relationships with customers of Verso Paper; and (e) nothing herein shall\nprohibit Verso Paper from pursuing any remedies whether in law or equity, available to Verso Paper for breach or threatened breach of\nthis Agreement. Employee further acknowledges and agrees that as a senior executive of Verso Paper Employee performs unique and\nvaluable services to Verso Paper of an intellectual character and that Employee's services will be difficult for Verso Paper to replace.\nEmployee further acknowledges and agrees that Verso Paper is providing Employee with significant consideration in this Agreement for\nentering into the Agreement and that Verso Paper's remedies for any breach of this Agreement are in addition to and not in place of any\nother remedies Verso Paper may have at law or equity or under any other agreements.\n8.\nSection 409A of the Code\nThe parties hereto acknowledge and agree that, to the extent applicable, this Agreement shall be interpreted in accordance with, and\nincorporate the terms and conditions required by, Section 409A of the Internal Revenue Code of 1986, as amended, and the Department\nof Treasury Regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other\nguidance that may be issued after the date hereof ("Section 409A"). Notwithstanding any provision of this Agreement to the contrary, in\nthe event that Verso Paper determines that any amounts payable hereunder will be immediately taxable to Employee under Section 409A,\nVerso Paper and Employee shall cooperate in good faith to (a) adopt such amendments to this Agreement and appropriate policies and\nprocedures, including amendments and policies with retroactive effect, that they mutually determine to be necessary or appropriate to\npreserve the intended tax treatment of the benefits provided by this Agreement, to preserve the economic benefits of this Agreement, and\nto avoid less favorable accounting or tax consequences for Verso Paper and/or (b) take such other actions as mutually determined to be\nnecessary or appropriate to exempt any amounts payable hereunder from Section 409A or to comply with the requirements of\nSection 409A and thereby avoid the application of penalty taxes thereunder.\n9. General\n(a) Employee acknowledges and agrees that the parties have attempted to limit Employee's right to compete only to the extent necessary\nto protect Verso Paper from unfair competition and protect the legitimate interests of Verso Paper. If any provision or clause of this\nAgreement or portion thereof shall be held by any court of competent jurisdiction to be illegal, void or unenforceable in such\njurisdiction, the remainder of such provisions shall not thereby be affected and shall be given full effect, without regard to the invalid\nportion It is the intention of the parties and Employee agrees, that if any court construes any provision or clause of this Agreement\nor\nany portion thereof to be illegal, void or unenforceable because of the duration of such provision or the area or matter covered thereby,\nsuch court shall reduce the duration, area or matter of such provision and in its reduced form, such provision shall then be enforceable\nand shall be enforced.\n(b) Employee acknowledges that neither this Agreement nor any provision hereof can be modified, abrogated or waived except in a\nwritten document signed by the Vice President of Human Resource or the President and Chief Executive Officer of Verso Paper, or in the\nevent of the absence of either of these executives, or the vacancy of either of these positions, such other officer of Verso Paper as Verso\nPaper's Board of Directors shall designate in writing.\n(c) This Agreement shall be governed by and in accordance with the laws and public policies of the State of Delaware.\n(d) Employee hereby consents to the jurisdiction of and agrees that any claim arising out of or relating to this Agreement may be brought\nin the courts of the State of Delaware.\n(e) This Agreement and any rights thereunder may be assigned by Verso Paper and if so assigned shall operate to protect the Protected\nInformation and relationships of Verso Paper as well as such information and relationships of the assignee.\n(f) Attorney's fees. Should either party to this Agreement breach any of the terms of this Agreement, that party shall pay to the non-\ndefaulting party all of the non-defaulting party's costs and expenses, including attorney's and experts' fees in enforcing the provisions of\nthe Agreement as to which a breach is found.\n(g) Employee agrees that Verso Paper's determination not to enforce this or similar agreements as to specific violations shall not operate\nas a waiver or release of Employee's obligations under this Agreement.\n(h) Common law duties. Employee understands that Employee owes fiduciary and common law duties to Verso Paper in addition to the\ncovenants set forth above prohibiting the misuse or disclosure of trade secrets or confidential information and the unlawful interference\nwith Verso Paper's business and customer relationships.\n(i) Opportunity to review. Employee acknowledges and agrees that Verso Paper has advised Employee that Employee may consult with\nan independent attorney before signing this Agreement.\nIn witness whereof the parties hereto have caused this Agreement to be executed and delivered effective as of the date signed below by Employee\nand the duly authorized officer of Verso Paper.\nSigned (Employee):\n/s/ Michael Weinhold\nMichael Weinhold, Senior Vice President, Sales and Marketing\nDate:\n3/19/07\nWork address:\nVerso Paper:\n/s/ Ricardo Moncada\nRicardo Moncada, Vice President, Human Resources\nDate:\n3/19/07	EX-10.12 26 dex1012.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (MICHAEL\nWEINHOLD)\nExhibit 10.12\nExecutive Employees\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Confidentiality and Non-Competition Agreement (“Agreement”) is entered into by and between Verso Paper Holdings LLC, a Delaware\nlimited liability company (“Verso Paper”), and Michael Weinhold (“Employee”), to allow Employee to have access to certain valuable competitive\ninformation and business relationships of Verso Paper while also providing protection for such information and relationships.\nWHEREAS, Verso Paper is willing to employ Employee in the position of Vice President, General Counsel and Secretary, and Employee is\nwilling to accept such employment upon the terms and conditions set forth herein; and,\nWHEREAS, Verso Paper is willing to provide Employee with certain benefits, as set forth herein, even after the employment relationship with\nEmployee has ended in order to protect its valuable competitive information and business relationships; and\nWHEREAS, after having ample opportunity to discuss, negotiate, and revise as necessary, the parties are willing to enter into this Agreement;\nNOW, THEREFORE, the parties hereto agree as follows:\n1. Definitions\n(a) As used in this Agreement, the term “Protected Information” shall mean all information, documents or materials, owned, developed\nor possessed by Verso Paper or any employee while in the employ of Verso Paper, whether in tangible or intangible form, which (i) Verso\nPaper takes reasonable measures to maintain in secrecy, and (ii) pertains in any manner to Verso Paper’s business, including but not\nlimited to Research and Development (as defined below); customers or prospective customers, targeted national accounts, or strategies\nor data for identifying and satisfying their needs; present or prospective business relationships; present, short term, or long term strategic\nplans; acquisition candidates; plans for corporate restructuring; products under consideration or development; cost, margin or profit\ninformation; data from which any of the foregoing types of information could be derived; human resources (including compensation\ninformation and internal evaluations of the performance, capability and potential of Verso Paper employees); business methods, data\nbases and computer programs.\n“Research and Development” shall include, but not be limited to (i) all short term and long term basic, applied and developmental\nresearch and technical assistance and specialized research support of customers or active prospects, targeted national accounts, of Verso\nPaper operating divisions; (ii) information relating to manufacturing and converting processes, methods, techniques and equipment and\nthe improvements and innovations relating to\nsame; quality control procedures and equipment; identification, selection, generation and propagation of tree species having improved\ncharacteristics; forest resource management; innovation and improvement to manufacturing and converting processes such as shipping,\npulping bleaching chemical recovery papermaking, coating and calendaring processes and in equipment for use in such processes;\nreduction and remediation of environmental discharges; minimization or elimination of solid and liquid waste; use and optimization of\nraw materials in manufacturing processes; recycling and manufacture paper products; recycling of other paper or pulp products; energy\nconservation; computer software and application of computer controls to manufacturing and quality control operations and to inventory\ncontrol; radio frequency identification and its use in paper and packaging products; and product process improvement development or\nevaluation; and (iii) information about methods, techniques, products equipment, and processes which Verso Paper has learned do not\nwork or do not provide beneficial results (“negative know-how”) as well as those which do work which provide beneficial results.\nThe fact that individual elements of the information that constitutes Protected Information may be generally known does not prevent an\nintegrated compilation of information, whether or not reduced to writing, from being Protected Information if that integrated whole is not\ngenerally known.\n(b) As used in this Agreement, the term “Unauthorized” shall mean: (i) in contravention of Verso Paper’s policies or procedures;\n(ii) otherwise inconsistent with Verso Paper’s measures to protect its interests in the Protected Information; (iii) in contravention of any\nlawful instruction or directive, either written or oral, of an Verso Paper employee empowered to issue such instruction or directive;\n(iv) in contravention of any duty existing under law or contract; or (v) to the detriment of Verso Paper.\n2. Confidentiality Provisions\n(a) Employee acknowledges and agrees that by reason of employment with Verso Paper as a senior level executive in the position of\nSenior Vice President, Sales and Marketing, Employee has been and will be entrusted with Protected Information and may develop\nProtected Information, that such information is valuable and useful to Verso Paper, that it would also be valuable and useful to\ncompetitors and others who do not know it and that such information constitutes confidential and proprietary trade secrets of Verso\nPaper. While an employee or consultant of Verso Paper, or at any time thereafter, regardless of the reasons for leaving Verso Paper,\nEmployee agrees not to use or disclose, directly or indirectly, any Protected Information in an Unauthorized manner or for any\nUnauthorized purpose unless such information shall have become generally known in the relevant industry or independently developed\nwith no assistance from Employee. Further, promptly upon termination, for any reason, of Employee’s employment with Verso Paper or\nupon the request of Verso Paper Employee agrees to deliver to Verso Paper all property and materials and copies thereof within\nEmployee’s possession or control which belong to Verso Paper or which contain Protected Information and to permanently delete upon\nVerso Paper’s request all Protected Information from any computers or other electronic storage media Employee owns or uses.\n(b) While an employee of Verso Paper and after termination of Employee’s employment with Verso Paper for any reason Employee\nagrees not to take any actions which would constitute or facilitate the Unauthorized use or disclosure of Protected Information including\ntransmitting or posting such Protected Information on the internet, anonymously or otherwise. Employee further agrees to take all\nreasonable measures to prevent Unauthorized use and disclosure of Protected Information and to prevent Unauthorized persons or\nentities from obtaining or using Protected Information.\n(c) If Employee becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, investigation, demand, order\nor similar process) to disclose any Protected Information, then before any such disclosure may be made, Employee shall immediately\nnotify Verso Paper thereof and, at Verso Paper’s expense, shall consult with Verso Paper on the advisability of taking steps to resist or\nnarrow such request and cooperate with Verso Paper in any attempt to obtain a protective order or other appropriate remedy or assurance\nthat the Protected Information will be afforded confidential treatment. If such protective order or other appropriate remedy is not\nobtained, Employee shall furnish only that portion of the Protected Information that it is advised by legal counsel is legally required to be\nfurnished.\n3. Non-compete provisions\n(a) Employee acknowledges and agrees that, the business of Verso Paper and its customers is worldwide in scope, Verso Paper’s\ncompetitors and customers are located throughout the world, and Verso Paper’s strategic planning and Research and Development\nactivities have application throughout the world and are for the benefit of customers and Verso Paper’s business throughout the world,\nand therefore, the restrictions on the Employee’s competition after employment as described below apply to anywhere in the world in\nwhich Verso Paper or its subsidiaries are doing business. Employee acknowledges that any such competition within that geographical\nscope will irreparably injure Verso Paper. Employee acknowledges and agrees that, for that reason, the prohibitions on competition\ndescribed below are reasonably tailored to protect Verso Paper.\n(b) While an employee or consultant of Verso Paper, Employee agrees not to compete in any manner, either directly or indirectly whether\nfor compensation or otherwise with Verso Paper or to assist any other person or entity to compete with Verso Paper in the business of\ncoated and super-calendared paper products or the operation of coated and super-calendared paper mills anywhere in the world.\n(c) After the termination of employment for any reason, Employee agrees that for a period of twelve (12) months (the “Non-Compete\nPeriod”) following such termination Employee will not compete with Verso Paper anywhere in the world in which Verso Paper or its\nsubsidiaries are doing business:\n(i.) By producing, developing, selling or marketing, or assisting others to produce, develop, sell or market in the business of\ncoated\nand super-calendared paper products or the operation of coated and super-calendared paper mills;\n(ii.) By engaging in any sales, marketing, Research and Development or managerial duties (including, without limitation,\nfinancial, human resources, strategic planning, or operational duties) for, whether as an employee, consultant, or otherwise, any\nentity which produces, develops, sells or markets in the business of coated and super-calendared paper products or the operation\nof coated and super-calendared paper mills;\n(iii.) By owning, managing, operating, controlling or consulting for any entity which produces, develops, sells or markets in the\nbusiness of coated and super-calendared paper products or the operation of coated and super-calendared paper mills, provided\nthat this section 3(c)(iii) shall not prohibit Employee from being a passive owner of not more than two percent (2%) of the\noutstanding stock of any class of a corporation that is publicly traded, so long as Employee has no active participation in the\nbusiness of such corporation; or\n(iv.) By soliciting the business of any actual or active prospective customers, or targeted national accounts of Verso Paper for any\nproduct, process or service which is competitive with the products, processes, or services of Verso Paper, namely any products,\nprocesses or services of the business of coated and super-calendared paper products or the operation of coated and super-\ncalendared paper mills, whether existing or contemplated for the future, on which Employee has worked, or concerning which\nEmployee has in any manner acquired knowledge or Protected Information about, during the twenty four (24) months preceding\ntermination of Employee’s employment.\nIt shall not be a violation of this provision for Employee to accept employment with a non-competitive division or business unit\nof a multi-divisional company some of whose divisions or business units are competitors of Verso Paper, so long as Employee\ndoes not engage in, oversee, provide input or information regarding, or participate in any manner in the activities described in this\nparagraph as they relate to the division or business unit which is a competitor of Verso Paper. Employee shall not assist others in\nengaging in activities which Employee is not permitted to take.\n(d) Verso Paper and Employee agree that, during the Non-Compete Period, if Employee is unable, despite diligent search, to obtain\nemployment consistent with Employee’s experience and education, Employee shall so notify Verso Paper in writing, describing in detail\nthe efforts Employee has made to secure such employment that does not conflict with Employee’s non-compete obligations. Upon\nreceipt and reasonable verification of the information contained in such notice, and provided that Employee complies with all his\nobligations under this Agreement (including, without limitation, his obligations under sections 2, 3(c) and 4), Verso Paper shall make\nmonthly payments to Employee equal to the monthly base pay Employee was receiving from Verso Paper in the month prior to the\ntermination of employment with Verso Paper for each month (or prorated for periods less\nthan a month) of such unemployment during the Non-Compete Period. Before the close of each month for which Employee seeks such\npayment, Employee shall advise Verso Paper in writing of Employee’s efforts to obtain non-competitive employment and shall certify\nthat although Employee diligently sought such employment, Employee was unable to obtain it.\n4. Non-Solicitation/Non-hire provision\nDuring the term of Employee’s employment at Verso Paper and for twelve (12) months following the termination, for any reason, of\nemployment, Employee agrees that Employee will not, either on Employee’s own behalf or on behalf of any other person or entity,\ndirectly or indirectly, hire, solicit, retain or encourage to leave the employ of Verso Paper (or assist any other person or entity in hiring,\nsoliciting, retaining or encouraging) any person who is then or was within six (6) months of the date of such hiring an employee of Verso\nPaper.\n5. Tolling period of Restrictions\nEmployee agrees that the periods of non-competition and non-solicitation set forth in sections 3 and 4 of this Agreement shall be\nextended by the period of violation if Employee is found to be in violation of those provisions.\n6. Duty to show agreement to prospective employer.\nDuring Employee’s employment with Verso Paper and for twelve (12) months thereafter, Employee shall, prior to accepting other\nemployment, provide a copy of this Agreement to any recruiter who assists Employee in locating employment other than with Verso\nPaper and to any prospective employer with which Employee discusses potential employment.\n7. Representations, Warranties and Acknowledgements\nIn addition to the representations, warranties and obligations set forth throughout this Agreement, Employee acknowledges that\n(a) Protected Information is commercially and competitively valuable to Verso Paper and critical to its success; (b) the Unauthorized use\nor disclosure of Protected Information or the violation of the covenants set forth in sections 2, 3, or 4 would cause irreparable harm to\nVerso Paper; (c) by this Agreement, Verso Paper is taking reasonable steps to protect its legitimate interests in its Protected Information;\n(d) Employee has developed or will develop legally unique relationships with customers of Verso Paper; and (e) nothing herein shall\nprohibit Verso Paper from pursuing any remedies whether in law or equity, available to Verso Paper for breach or threatened breach of\nthis Agreement. Employee further acknowledges and agrees that as a senior executive of Verso Paper Employee performs unique and\nvaluable services to Verso Paper of an intellectual character and that Employee’s services will be difficult for Verso Paper to replace.\nEmployee further acknowledges and agrees that Verso Paper is providing Employee with significant consideration in this Agreement for\nentering into the Agreement and that Verso Paper’s remedies for any breach of this Agreement are in addition to and not in place of any\nother remedies Verso Paper may have at law or equity or under any other agreements.\n8. Section 409A of the Code\nThe parties hereto acknowledge and agree that, to the extent applicable, this Agreement shall be interpreted in accordance with, and\nincorporate the terms and conditions required by, Section 409A of the Internal Revenue Code of 1986, as amended, and the Department\nof Treasury Regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other\nguidance that may be issued after the date hereof (“Section 409A”). Notwithstanding any provision of this Agreement to the contrary, in\nthe event that Verso Paper determines that any amounts payable hereunder will be immediately taxable to Employee under Section 409A,\nVerso Paper and Employee shall cooperate in good faith to (a) adopt such amendments to this Agreement and appropriate policies and\nprocedures, including amendments and policies with retroactive effect, that they mutually determine to be necessary or appropriate to\npreserve the intended tax treatment of the benefits provided by this Agreement, to preserve the economic benefits of this Agreement, and\nto avoid less favorable accounting or tax consequences for Verso Paper and/or (b) take such other actions as mutually determined to be\nnecessary or appropriate to exempt any amounts payable hereunder from Section 409A or to comply with the requirements of\nSection 409A and thereby avoid the application of penalty taxes thereunder.\n9. General\n(a) Employee acknowledges and agrees that the parties have attempted to limit Employee’s right to compete only to the extent necessary\nto protect Verso Paper from unfair competition and protect the legitimate interests of Verso Paper. If any provision or clause of this\nAgreement or portion thereof shall be held by any court of competent jurisdiction to be illegal, void or unenforceable in such\njurisdiction, the remainder of such provisions shall not thereby be affected and shall be given full effect, without regard to the invalid\nportion. It is the intention of the parties and Employee agrees, that if any court construes any provision or clause of this Agreement or\nany portion thereof to be illegal, void or unenforceable because of the duration of such provision or the area or matter covered thereby,\nsuch court shall reduce the duration, area or matter of such provision and in its reduced form, such provision shall then be enforceable\nand shall be enforced.\n(b) Employee acknowledges that neither this Agreement nor any provision hereof can be modified, abrogated or waived except in a\nwritten document signed by the Vice President of Human Resource or the President and Chief Executive Officer of Verso Paper, or in the\nevent of the absence of either of these executives, or the vacancy of either of these positions, such other officer of Verso Paper as Verso\nPaper’s Board of Directors shall designate in writing.\n(c) This Agreement shall be governed by and in accordance with the laws and public policies of the State of Delaware.\n(d) Employee hereby consents to the jurisdiction of and agrees that any claim arising out of or relating to this Agreement may be brought\nin the courts of the State of Delaware.\n(e) This Agreement and any rights thereunder may be assigned by Verso Paper and if so assigned shall operate to protect the Protected\nInformation and relationships of Verso Paper as well as such information and relationships of the assignee.\n(f) Attorney’s fees. Should either party to this Agreement breach any of the terms of this Agreement, that party shall pay to the non-\ndefaulting party all of the non-defaulting party’s costs and expenses, including attorney’s and experts’ fees in enforcing the provisions of\nthe Agreement as to which a breach is found.\n(g) Employee agrees that Verso Paper’s determination not to enforce this or similar agreements as to specific violations shall not operate\nas a waiver or release of Employee’s obligations under this Agreement.\n(h) Common law duties. Employee understands that Employee owes fiduciary and common law duties to Verso Paper in addition to the\ncovenants set forth above prohibiting the misuse or disclosure of trade secrets or confidential information and the unlawful interference\nwith Verso Paper’s business and customer relationships.\n(i) Opportunity to review. Employee acknowledges and agrees that Verso Paper has advised Employee that Employee may consult with\nan independent attorney before signing this Agreement.\nIn witness whereof the parties hereto have caused this Agreement to be executed and delivered effective as of the date signed below by Employee\nand the duly authorized officer of Verso Paper.\nSigned (Employee):\n/s/ Michael Weinhold\nMichael Weinhold, Senior Vice President, Sales and Marketing\nDate:\n3/19/07\nWork address:\nVerso Paper:\n/s/ Ricardo Moncada\nRicardo Moncada, Vice President, Human Resources\nDate:\n3/19/07
+6c889ccacbb7001b067a36fd76a6a54c.pdf	effective_date jurisdiction party term	EX-99.(E)(3) 2 dex99e3.htm MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (e)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS AGREEMENT is made February 7, 2008 between Blackbaud Inc., a Delaware corporation (“Blackbaud”), and Kintera, Inc., a\nDelaware corporation (“Company”).\n1. Purpose. Blackbaud and Company wish to explore a business possibility (the “Proposed Transaction”) under which each may disclose, by\nthemselves or through their respective representatives, attorneys or agents, its Confidential Information to the other.\nDefinition. “Confidential Information” means any information, technical data, or know-how, including, but not limited to, that which relates to\nresearch, product plans, products, services, customers, markets, software, developments, inventions, processes, designs, drawings, engineering,\nhardware configuration information, marketing or finances, the identity of the parties, financial and business plans, strategies and projections, or that\nis of such a nature that would reasonably be construed as confidential or proprietary which Confidential Information is designated in writing to be\nconfidential or proprietary, or if given orally, is identified as confidential at the time of disclosure or confirmed promptly in writing as having been\ndisclosed as confidential or proprietary. Notwithstanding the foregoing, Confidential Information shall not include: (i) information that at the time of\ndisclosure is generally available to the public or is otherwise available to the receiving party other than on a confidential basis; (ii) information that,\nafter disclosure, becomes generally available to the public by publication or otherwise through no fault of the receiving party; (iii) information\ndisclosed to the receiving party by a third party not under an obligation of confidentiality to the disclosing party; or (iv) information that can be\nclearly demonstrated to be developed by an employee, agent or contractor of the party independently of the disclosures by the disclosing party. In the\nevent that a party or its representative is required by applicable law, regulation or legal process to disclose any of the Confidential Information, such\nparty will notify the other party promptly so that the other party may seek a protective order or other appropriate remedy, consult with such party\nregarding taking steps to resist or narrow the scope of the required disclosure or, in the other party’s sole discretion, waive compliance with the terms\nof this Confidentiality Agreement. Such party and its representatives will cooperate fully with the other party and its representatives in any attempt\nby such party to obtain any such protective order or other remedy. In the event that no such protective order or other remedy is obtained, or that the\nother party waives compliance with the terms of this Agreement, such party will furnish only that portion of the Confidential Information which it is\nadvised by counsel is legally required and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be\naccorded to the Confidential Information disclosed.\n2. Nondisclosure of Confidential Information. Blackbaud and Company agree, and agree to use its best efforts to cause any employee or\nthird party with access to Confidential Information, not to use the Confidential Information disclosed to it by the other party for its own use or for\nany purpose except to carry out discussions concerning and the undertaking of any business relationship between the two. Neither will disclose the\nConfidential Information of the other to third parties or to the receiving party’s employees except for such attorneys, bankers, advisors and\nemployees who are required to have the information in order to carry out the contemplated business. Each has had or will have such third parties and\nemployees to whom Confidential Information of the other is disclosed, or who will have access to Confidential Information of the other, be bound by\nan obligation of confidentiality in content substantially similar to this Agreement and will notify the other in writing of the names of each such third\nparty and employee upon request by the other party. Each agrees that it will take all reasonable measures to protect the secrecy of and avoid\ndisclosure or use of Confidential Information of the other in order to prevent it from falling into the public domain or the possession of persons other\nthan those persons authorized hereunder to have any such information, which measures shall include the highest degree of care that the receiving\nparty utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other in writing of any misuse or\nmisappropriation of Confidential Information of the other that may come to its attention. Each party understands that, except as otherwise agreed in\nwriting, the Confidential Information which it may receive concerning the other party’s future plans with respect to the business possibility is\ntentative and is not intended to represent firm decisions by the other party concerning the implementation of such plans.\nPage1of3\nMUTUAL NONDISCLOSURE AGREEMENT\nConfidential Information provided hereunder, by one party to the other, does not represent or imply any commitment beyond the express terms of\nthis Agreement.\n3. Return of Materials. Any materials or documents that have been furnished by one party to the other will be promptly returned or destroyed\n(with a certificate of destruction executed by an appropriate officer of recipient) where returning such material is impractical, accompanied by all\ncopies of such documentation, after the business possibility has been rejected or concluded.\n4. Patent or Copyright Infringement. Nothing in this Agreement is intended to grant any rights under any patent or copyright of either party,\nnor shall this Agreement grant either party any rights in or to the other party’s Confidential Information, except the limited right to review such\nConfidential Information solely for the purposes of determining whether to enter into the proposed business relationship between the parties.\n5. Term. The foregoing commitments in this Agreement shall terminate three (3) years following the date of this Agreement.\n6. Miscellaneous. This Agreement shall be binding upon and for the benefit of the undersigned parties, their successors and assigns, provided\nthat Confidential Information may not be assigned without the prior written consent of the disclosing party. Failure to enforce any provision of this\nAgreement shall not constitute a waiver of any term hereof. In the event that any of the provisions of this Agreement shall be held by a court or other\ntribunal of competent jurisdiction to be invalid or unenforceable, the remaining portions hereof shall remain in full force and effect and such\nprovision shall be enforced to the maximum extent possible so as to effect the intent of the parties, and shall in no way be affected, impaired or\ninvalidated. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement\nand all of which, when taken together, will be deemed to constitute one and the same instrument. This Agreement constitutes the entire agreement\nbetween the parties concerning the confidentiality of the Confidential Information in connection with the Proposed Transaction and related matters\nand supersedes all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, communications and agreements,\nwhether oral or written, between the parties relating to the same and all past courses of dealing or industry custom.\n7. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of\nDelaware, and shall be binding upon the parties hereto in the United States and worldwide.\n8. Securities Laws. Each party hereby acknowledges that it is aware, and that it will advise such directors, officers, employees, consultants,\nand representatives who are informed as to the matters which are the subject of this Agreement, that securities laws prohibit any person who has\nreceived from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling\nsecurities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that\nsuch person is likely to purchase or sell such securities. Each party agrees it will abide by these laws with respect to its receipt and possession of\nConfidential Information of the other.\n9. Remedies. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party and the other\nparty’s business, and expressly agrees that monetary damages would be inadequate to compensate the other party for any breach of any covenant or\nagreement set forth herein. Accordingly, each party agrees and acknowledges that any such violation or threatened violation will cause irreparable\ninjury to the other party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the other party shall be\nentitled to obtain injunctive relief against the threatened\nPage2of3\nMUTUAL NONDISCLOSURE AGREEMENT\nbreach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages.\nBLACKBAUD, INC.\nBy:\n/s/ Robert E. Hughes\nPrinted Name: Robert E. Hughes\nTitle:\nVP of Corporate Development\nDate:\n2/7/08\nKINTERA, INC. (“Company”)\nBy:\n/s/ Richard LaBarbera\nPrinted Name: Richard LaBarbera\nTitle:\nCEO & President\nDate:\n2/7/ 08\nPage3of3	EX-99.(E)(3) 2 dex99e3.htm MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (e)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS AGREEMENT is made February 7, 2008 between Blackbaud Inc., a Delaware corporation (“Blackbaud”), and Kintera, Inc., a\nDelaware corporation (“Company”).\n1. Purpose. Blackbaud and Company wish to explore a business possibility (the “Proposed Transaction”) under which each may disclose, by\nthemselves or through their respective representatives, attorneys or agents, its Confidential Information to the other.\nDefinition. “Confidential Information” means any information, technical data, or know-how, including, but not limited to, that which relates to\nresearch, product plans, products, services, customers, markets, software, developments, inventions, processes, designs, drawings, engineering,\nhardware configuration information, marketing or finances, the identity of the parties, financial and business plans, strategies and projections, or that\nis of such a nature that would reasonably be construed as confidential or proprietary which Confidential Information is designated in writing to be\nconfidential or proprietary, or if given orally, is identified as confidential at the time of disclosure or confirmed promptly in writing as having been\ndisclosed as confidential or proprietary. Notwithstanding the foregoing, Confidential Information shall not include: (i) information that at the time of\ndisclosure is generally available to the public or is otherwise available to the receiving party other than on a confidential basis; (ii) information that,\nafter disclosure, becomes generally available to the public by publication or otherwise through no fault of the receiving party; (iii) information\ndisclosed to the receiving party by a third party not under an obligation of confidentiality to the disclosing party; or (iv) information that can be\nclearly demonstrated to be developed by an employee, agent or contractor of the party independently of the disclosures by the disclosing party. In the\nevent that a party or its representative is required by applicable law, regulation or legal process to disclose any of the Confidential Information, such\nparty will notify the other party promptly so that the other party may seek a protective order or other appropriate remedy, consult with such party\nregarding taking steps to resist or narrow the scope of the required disclosure or, in the other party’s sole discretion, waive compliance with the terms\nof this Confidentiality Agreement. Such party and its representatives will cooperate fully with the other party and its representatives in any attempt\nby such party to obtain any such protective order or other remedy. In the event that no such protective order or other remedy is obtained, or that the\nother party waives compliance with the terms of this Agreement, such party will furnish only that portion of the Confidential Information which it is\nadvised by counsel is legally required and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be\naccorded to the Confidential Information disclosed.\n2. Nondisclosure of Confidential Information. Blackbaud and Company agree, and agree to use its best efforts to cause any employee or\nthird party with access to Confidential Information, not to use the Confidential Information disclosed to it by the other party for its own use or for\nany purpose except to carry out discussions concerning and the undertaking of any business relationship between the two. Neither will disclose the\nConfidential Information of the other to third parties or to the receiving party’s employees except for such attorneys, bankers, advisors and\nemployees who are required to have the information in order to carry out the contemplated business. Each has had or will have such third parties and\nemployees to whom Confidential Information of the other is disclosed, or who will have access to Confidential Information of the other, be bound by\nan obligation of confidentiality in content substantially similar to this Agreement and will notify the other in writing of the names of each such third\nparty and employee upon request by the other party. Each agrees that it will take all reasonable measures to protect the secrecy of and avoid\ndisclosure or use of Confidential Information of the other in order to prevent it from falling into the public domain or the possession of persons other\nthan those persons authorized hereunder to have any such information, which measures shall include the highest degree of care that the receiving\nparty utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other in writing of any misuse or\nmisappropriation of Confidential Information of the other that may come to its attention. Each party understands that, except as otherwise agreed in\nwriting, the Confidential Information which it may receive concerning the other party’s future plans with respect to the business possibility is\ntentative and is not intended to represent firm decisions by the other party concerning the implementation of such plans.\nPage 1 of 3\nMUTUAL NONDISCLOSURE AGREEMENT\nConfidential Information provided hereunder, by one party to the other, does not represent or imply any commitment beyond the express terms of\nthis Agreement.\n3. Return of Materials. Any materials or documents that have been furnished by one party to the other will be promptly returned or destroyed\n(with a certificate of destruction executed by an appropriate officer of recipient) where returning such material is impractical, accompanied by all\ncopies of such documentation, after the business possibility has been rejected or concluded.\nnor shall this Agreement grant either party any rights in or to the other party’s Confidential Information, except the limited right to review such\nConfidential Information solely for the purposes of determining whether to enter into the proposed business relationship between the parties.\n5. Term. The foregoing commitments in this Agreement shall terminate three (3) years following the date of this Agreement.\n6. Miscellaneous. This Agreement shall be binding upon and for the benefit of the undersigned parties, their successors and assigns, provided\nthat Confidential Information may not be assigned without the prior written consent of the disclosing party. Failure to enforce any provision of this\nAgreement shall not constitute a waiver of any term hereof. In the event that any of the provisions of this Agreement shall be held by a court or other\ntribunal of competent jurisdiction to be invalid or unenforceable, the remaining portions hereof shall remain in full force and effect and such\nprovision shall be enforced to the maximum extent possible so as to effect the intent of the parties, and shall in no way be affected, impaired or\ninvalidated. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement\nand all of which, when taken together, will be deemed to constitute one and the same instrument. This Agreement constitutes the entire agreement\nbetween the parties concerning the confidentiality of the Confidential Information in connection with the Proposed Transaction and related matters\nand supersedes all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, communications and agreements,\nwhether oral or written, between the parties relating to the same and all past courses of dealing or industry custom.\n7. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of\nDelaware, and shall be binding upon the parties hereto in the United States and worldwide.\n8. Securities L.aws. Each party hereby acknowledges that it is aware, and that it will advise such directors, officers, employees, consultants,\nand representatives who are informed as to the matters which are the subject of this Agreement, that securities laws prohibit any person who has\nreceived from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling\nsecurities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that\nsuch person is likely to purchase or sell such securities. Each party agrees it will abide by these laws with respect to its receipt and possession of\nConfidential Information of the other.\n9. Remedies. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party and the other\nparty’s business, and expressly agrees that monetary damages would be inadequate to compensate the other party for any breach of any covenant or\nagreement set forth herein. Accordingly, each party agrees and acknowledges that any such violation or threatened violation will cause irreparable\ninjury to the other party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the other party shall be\nentitled to obtain injunctive relief against the threatened\nPage 2 of 3\nMUTUAL NONDISCLOSURE AGREEMENT breach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages. Page 3 of 3\nBLACKBAUD, INC.\nBy: /s/ Robert E. Hughes\nPrinted Name: Robert E. Hughes\nTitle: VP of Corporate Development\nDate: 2/7/08\nKINTERA, INC. (“Company”)\nBy: /s/ Richard LaBarbera\nPrinted Name: Richard LaBarbera\nTitle: CEO & President\nDate: 2/7/ 08	EX-99.(E)(3) 2 dex99e3.htm MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (e)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS AGREEMENT is made February 7, 2008 between Blackbaud Inc., a Delaware corporation ("Blackbaud"), and Kintera, Inc., a\nDelaware corporation ("Company").\n1. Purpose. Blackbaud and Company wish to explore a business possibility (the "Proposed Transaction") under which each may disclose, by\nthemselves or through their respective representatives, attorneys or agents, its Confidential Information to the other.\nDefinition. "Confidential Information" means any information, technical data, or know-how, including, but not limited to, that which relates to\nresearch, product plans, products, services, customers, markets, software, developments, inventions, processes, designs, drawings, engineering,\nhardware configuration information, marketing or finances, the identity of the parties, financial and business plans, strategies and projections, or that\nis of such a nature that would reasonably be construed as confidential or proprietary which Confidential Information is designated in writing to be\nconfidential or proprietary, or if given orally, is identified as confidential at the time of disclosure or confirmed promptly in writing as having been\ndisclosed as confidential or proprietary. Notwithstanding the foregoing, Confidential Information shall not include: (i) information that at the time\nof\ndisclosure is generally available to the public or is otherwise available to the receiving party other than on a confidential basis; (ii) information that,\nafter disclosure, becomes generally available to the public by publication or otherwise through no fault of the receiving party; (iii) information\ndisclosed to the receiving party by a third party not under an obligation of confidentiality to the disclosing party; or (iv) information that can be\nclearly demonstrated to be developed by an employee, agent or contractor of the party independently of the disclosures by the disclosing party. In\nthe\nevent\nthat\na\nparty\nor\nits\nrepresentative\nis\nrequired\nby\napplicable\nlaw,\nregulation\nor\nlegal\nprocess\nto\ndisclose\nany\nof\nthe\nConfidential\nInformation,\nsuch\nparty will notify the other party promptly so that the other party may seek a protective order or other appropriate remedy, consult with such party\nregarding taking steps to resist or narrow the scope of the required disclosure or, in the other party's sole discretion, waive compliance with the terms\nof\nthis Confidentiality Agreement. Such party and its representatives will cooperate fully with the other party and its representatives in any attempt\nby such party to obtain any such protective order or other remedy. In the event that no such protective order or other remedy is obtained, or that the\nother party waives compliance with the terms of this Agreement, such party will furnish only that portion of the Confidential Information which it is\nadvised by counsel is legally required and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be\naccorded to the Confidential Information disclosed.\n2.\nNondisclosure\nof\nConfidential\nInformation.\nBlackbaud\nand\nCompany\nagree,\nand\nagree\nto\nuse\nits\nbest\nefforts\nto\ncause\nany\nemployee\nor\nthird party with access to Confidential Information, not to use the Confidential Information disclosed to it by the other party for its own use or for\nany purpose except to carry out discussions concerning and the undertaking of any business relationship between the two. Neither will disclose the\nConfidential Information of the other to third parties or to the receiving party's employees except for such attorneys, bankers, advisors and\nemployees who are required to have the information in order to carry out the contemplated business. Each has had or will have such third parties and\nemployees to whom Confidential Information of the other is disclosed, or who will have access to Confidential Information of the other, be bound by\nan obligation of confidentiality in content substantially similar to this Agreement and will notify the other in writing of the names of each such third\nparty and employee upon request by the other party. Each agrees that it will take all reasonable measures to protect the secrecy of and avoid\ndisclosure or use of Confidential Information of the other in order to prevent it from falling into the public domain or the possession of persons other\nthan those persons authorized hereunder to have any such information, which measures shall include the highest degree of care that the receiving\nparty utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other in writing of any misuse or\nmisappropriation of Confidential Information of the other that may come to its attention. Each party understands that, except as otherwise agreed\nin\nwriting, the Confidential Information which it may receive concerning the other party's future plans with respect to the business possibility is\ntentative and is not intended to represent firm decisions by the other party concerning the implementation of such plans.\nPage 1 of 3\nMUTUAL NONDISCLOSURE AGREEMENT\nConfidential Information provided hereunder, by one party to the other, does not represent or imply any commitment beyond the express terms of\nthis Agreement.\n3. Return of Materials. Any materials or documents that have been furnished by one party to the other will be promptly returned or destroyed\n(with a certificate of destruction executed by an appropriate officer of recipient) where returning such material is impractical, accompanied by all\ncopies of such documentation, after the business possibility has been rejected or concluded.\n4. Patent or Copyright Infringement. Nothing in this Agreement is intended to grant any rights under any patent or copyright of either party,\nnor shall this Agreement grant either party any rights in or to the other party's Confidential Information, except the limited right to review such\nConfidential Information solely for the purposes of determining whether to enter into the proposed business relationship between the parties.\n5. Term. The foregoing commitments in this Agreement shall terminate three (3) years following the date of this Agreement.\n6. Miscellaneous. This Agreement shall be binding upon and for the benefit of the undersigned parties, their successors and assigns, provided\nthat Confidential Information may not be assigned without the prior written consent of the disclosing party. Failure to enforce any provision of this\nAgreement shall not constitute a waiver of any term hereof. In the event that any of the provisions of this Agreement shall be held by a court or other\ntribunal of competent jurisdiction to be invalid or unenforceable, the remaining portions hereof shall remain in full force and effect and such\nprovision shall be enforced to the maximum extent possible so as to effect the intent of the parties, and shall in no way be affected, impaired or\ninvalidated. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement\nand all of which, when taken together, will be deemed to constitute one and the same instrument. This Agreement constitutes the entire agreement\nbetween the parties concerning the confidentiality of the Confidential Information in connection with the Proposed Transaction and related matters\nand supersedes all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, communications and agreements,\nwhether oral or written, between the parties relating to the same and all past courses of dealing or industry custom.\n7. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of\nDelaware, and shall be binding upon the parties hereto in the United States and worldwide.\n8. Securities Laws. Each party hereby acknowledges that it is aware, and that it will advise such directors, officers, employees, consultants,\nand representatives who are informed as to the matters which are the subject of this Agreement, that securities laws prohibit any person who has\nreceived from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling\nsecurities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that\nsuch person is likely to purchase or sell such securities. Each party agrees it will abide by these laws with respect to its receipt and possession\nof\nConfidential Information of the other.\n9. Remedies. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party and the other\nparty's business, and expressly agrees that monetary damages would be inadequate to compensate the other party for any breach of any covenant or\nagreement set forth herein. Accordingly, each party agrees and acknowledges that any such violation or threatened violation will cause irreparable\ninjury to the other party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the other party shall\nbe\nentitled to obtain injunctive relief against the threatened\nPage 2 of 3\nMUTUAL NONDISCLOSURE AGREEMENT\nbreach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages.\nBLACKBAUD, INC.\nBy:\n/s/ Robert E. Hughes\nPrinted Name: Robert E. Hughes\nTitle:\nVP of Corporate Development\nDate:\n2/7/08\nKINTERA INC. ("Company")\nBy:\n/s/ Richard LaBarbera\nPrinted Name: Richard LaBarbera\nTitle:\nCEO & President\nDate:\n2/7/08\nPage 3 of 3	EX-99.(E)(3) 2 dex99e3.htm MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (e)(3)\nMUTUAL NONDISCLOSURE AGREEMENT\nTHIS AGREEMENT is made February 7, 2008 between Blackbaud Inc., a Delaware corporation (“Blackbaud”), and Kintera, Inc., a\nDelaware corporation (“Company”).\n1. Purpose. Blackbaud and Company wish to explore a business possibility (the “Proposed Transaction”) under which each may disclose, by\nthemselves or through their respective representatives, attorneys or agents, its Confidential Information to the other.\nDefinition. “Confidential Information” means any information, technical data, or know-how, including, but not limited to, that which relates to\nresearch, product plans, products, services, customers, markets, software, developments, inventions, processes, designs, drawings, engineering,\nhardware configuration information, marketing or finances, the identity of the parties, financial and business plans, strategies and projections, or that\nis of such a nature that would reasonably be construed as confidential or proprietary which Confidential Information is designated in writing to be\nconfidential or proprietary, or if given orally, is identified as confidential at the time of disclosure or confirmed promptly in writing as having been\ndisclosed as confidential or proprietary. Notwithstanding the foregoing, Confidential Information shall not include: (i) information that at the time of\ndisclosure is generally available to the public or is otherwise available to the receiving party other than on a confidential basis; (ii) information that,\nafter disclosure, becomes generally available to the public by publication or otherwise through no fault of the receiving party; (iii) information\ndisclosed to the receiving party by a third party not under an obligation of confidentiality to the disclosing party; or (iv) information that can be\nclearly demonstrated to be developed by an employee, agent or contractor of the party independently of the disclosures by the disclosing party. In the\nevent that a party or its representative is required by applicable law, regulation or legal process to disclose any of the Confidential Information, such\nparty will notify the other party promptly so that the other party may seek a protective order or other appropriate remedy, consult with such party\nregarding taking steps to resist or narrow the scope of the required disclosure or, in the other party’s sole discretion, waive compliance with the terms\nof this Confidentiality Agreement. Such party and its representatives will cooperate fully with the other party and its representatives in any attempt\nby such party to obtain any such protective order or other remedy. In the event that no such protective order or other remedy is obtained, or that the\nother party waives compliance with the terms of this Agreement, such party will furnish only that portion of the Confidential Information which it is\nadvised by counsel is legally required and will exercise all reasonable efforts to obtain reliable assurances that confidential treatment will be\naccorded to the Confidential Information disclosed.\n2. Nondisclosure of Confidential Information. Blackbaud and Company agree, and agree to use its best efforts to cause any employee or\nthird party with access to Confidential Information, not to use the Confidential Information disclosed to it by the other party for its own use or for\nany purpose except to carry out discussions concerning and the undertaking of any business relationship between the two. Neither will disclose the\nConfidential Information of the other to third parties or to the receiving party’s employees except for such attorneys, bankers, advisors and\nemployees who are required to have the information in order to carry out the contemplated business. Each has had or will have such third parties and\nemployees to whom Confidential Information of the other is disclosed, or who will have access to Confidential Information of the other, be bound by\nan obligation of confidentiality in content substantially similar to this Agreement and will notify the other in writing of the names of each such third\nparty and employee upon request by the other party. Each agrees that it will take all reasonable measures to protect the secrecy of and avoid\ndisclosure or use of Confidential Information of the other in order to prevent it from falling into the public domain or the possession of persons other\nthan those persons authorized hereunder to have any such information, which measures shall include the highest degree of care that the receiving\nparty utilizes to protect its own Confidential Information of a similar nature. Each party agrees to notify the other in writing of any misuse or\nmisappropriation of Confidential Information of the other that may come to its attention. Each party understands that, except as otherwise agreed in\nwriting, the Confidential Information which it may receive concerning the other party’s future plans with respect to the business possibility is\ntentative and is not intended to represent firm decisions by the other party concerning the implementation of such plans.\nPage1of3\nMUTUAL NONDISCLOSURE AGREEMENT\nConfidential Information provided hereunder, by one party to the other, does not represent or imply any commitment beyond the express terms of\nthis Agreement.\n3. Return of Materials. Any materials or documents that have been furnished by one party to the other will be promptly returned or destroyed\n(with a certificate of destruction executed by an appropriate officer of recipient) where returning such material is impractical, accompanied by all\ncopies of such documentation, after the business possibility has been rejected or concluded.\n4. Patent or Copyright Infringement. Nothing in this Agreement is intended to grant any rights under any patent or copyright of either party,\nnor shall this Agreement grant either party any rights in or to the other party’s Confidential Information, except the limited right to review such\nConfidential Information solely for the purposes of determining whether to enter into the proposed business relationship between the parties.\n5. Term. The foregoing commitments in this Agreement shall terminate three (3) years following the date of this Agreement.\n6. Miscellaneous. This Agreement shall be binding upon and for the benefit of the undersigned parties, their successors and assigns, provided\nthat Confidential Information may not be assigned without the prior written consent of the disclosing party. Failure to enforce any provision of this\nAgreement shall not constitute a waiver of any term hereof. In the event that any of the provisions of this Agreement shall be held by a court or other\ntribunal of competent jurisdiction to be invalid or unenforceable, the remaining portions hereof shall remain in full force and effect and such\nprovision shall be enforced to the maximum extent possible so as to effect the intent of the parties, and shall in no way be affected, impaired or\ninvalidated. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement\nand all of which, when taken together, will be deemed to constitute one and the same instrument. This Agreement constitutes the entire agreement\nbetween the parties concerning the confidentiality of the Confidential Information in connection with the Proposed Transaction and related matters\nand supersedes all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, communications and agreements,\nwhether oral or written, between the parties relating to the same and all past courses of dealing or industry custom.\n7. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of\nDelaware, and shall be binding upon the parties hereto in the United States and worldwide.\n8. Securities Laws. Each party hereby acknowledges that it is aware, and that it will advise such directors, officers, employees, consultants,\nand representatives who are informed as to the matters which are the subject of this Agreement, that securities laws prohibit any person who has\nreceived from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or selling\nsecurities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that\nsuch person is likely to purchase or sell such securities. Each party agrees it will abide by these laws with respect to its receipt and possession of\nConfidential Information of the other.\n9. Remedies. Each party agrees that its obligations hereunder are necessary and reasonable in order to protect the other party and the other\nparty’s business, and expressly agrees that monetary damages would be inadequate to compensate the other party for any breach of any covenant or\nagreement set forth herein. Accordingly, each party agrees and acknowledges that any such violation or threatened violation will cause irreparable\ninjury to the other party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the other party shall be\nentitled to obtain injunctive relief against the threatened\nPage2of3\nMUTUAL NONDISCLOSURE AGREEMENT\nbreach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages.\nBLACKBAUD, INC.\nBy:\n/s/ Robert E. Hughes\nPrinted Name: Robert E. Hughes\nTitle:\nVP of Corporate Development\nDate:\n2/7/08\nKINTERA, INC. (“Company”)\nBy:\n/s/ Richard LaBarbera\nPrinted Name: Richard LaBarbera\nTitle:\nCEO & President\nDate:\n2/7/ 08\nPage3of3
+6e023262e1d6b3a98d36e937a55b59f5.pdf	effective_date jurisdiction party term	EX-10.1 2 dex101.htm CONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION\nAGREEMENT\nExhibit 10.1\nCONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON -COMPETITION AGREEMENT\nAs an associate of Ann Taylor, Inc. (the “Company”), you will have access to or may develop trade secrets, intellectual property, and other\nconfidential and proprietary information of the Company. Therefore, in consideration of your employment and your eligibility for the payments\ndescribed in Paragraph 2 below, and in recognition of the highly competitive nature of the Company’s business, you agree as follows:\n1. Protection of Confidential Information.\n(a) You acknowledge that your employment by the Company involves your obtaining knowledge of Confidential Information (as defined below)\nregarding the business and affairs of the Company.\n(b) Accordingly, you agree that:\n(i) except in compliance with legal process, you will keep secret all Confidential Information and other confidential matters of the Company\nwhich are not otherwise in the public domain and will not disclose them to anyone outside of the Company, wherever located (other than\nto a person to whom disclosure is reasonably necessary or appropriate in connection with the performance of your duties as an employee\nof the Company), either during or after your employment, except with the prior written consent of the Chief Executive Officer or the\nGeneral Counsel of the Company. In the event that you are required to disclose any Confidential Information or other confidential\nmatters of the Company to comply with legal process, you shall provide reasonable advance notice of such legal process to the General\nCounsel of the Company prior to disclosure of any Confidential Information or confidential matters and will not challenge the\nCompany’s standing or ability to seek an order of protection or otherwise seek to prevent or limit disclosure pursuant to such legal\nprocess consistent with applicable law;\n(ii) you will deliver promptly to the Company on termination of your employment or at any other time the Company may so request, all\nmemoranda, notes, records, customer lists, reports and other documents (whether in paper or electronic form and all copies thereof)\nrelating to the business of the Company and all other Company property which you obtained or developed while employed by, or\notherwise serving or acting on behalf of, the Company and which you may then possess or have under your control, whether directly or\nindirectly; and\n(iii) you will not use Confidential Information for your personal benefit or for the benefit of another person or entity.\n(c) For purposes of this Agreement, “Confidential Information” refers to information of the Company (including its affiliated companies) or its\nsuppliers, technology service providers, licensors, clients, and employees, including without limitation information relating to designs,\nproducts, processes, formulas, merchandising, real estate strategy, contract terms, client lists, sourcing information and strategies, technology,\nmarketing plans, advertising, corporate assessments and strategic plans, financial and statistical information, accounting information, pricing\nand business affairs, associate compensation and relative skills and abilities, which have been or are disclosed or available to you and which\nare either designated at the time of disclosure as confidential or which you know or have reason to know are confidential, regardless of the\nform or media in which such information is disclosed.\n2. Non-solicitation of Associates; Non-competition.\n(a) During your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Solicitation Period”), you shall not directly or indirectly, (1) solicit, induce, or attempt to influence any associate at\nthe director level or above to leave his or her employment with the Company or (2) hire or attempt to hire any associate of the Company at the\ndirector level or above, directly or indirectly through a new employer or other person or entity, to join you in the pursuit of any business\nactivity (whether or not such activity involves engaging or participating in a business that competes, or plans to compete, with the Company or\nany of its products). Should you violate this provision, in addition to the other remedies the Company may pursue hereunder, the Non-\nSolicitation Period will be extended by the number of months you were in violation of this Paragraph 2(a) and you shall have no further rights\nunder Paragraphs 2(c), 2(d) and 2(e).\n(b) During your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Competition Period”), you shall not, directly or\nindirectly, without the prior written consent of the Company, work for, be employed, affiliated, engaged or associated with or contribute to the\nefforts (as an employee, owner, stockholder, partner, director, officer, consultant or otherwise) of a business that is, or plans to be, a Competitor\n(as defined herein) of the Company at the time of termination. As used herein, “Competitor” means a business or other entity engaged in the\nmanufacture, design and/or sale of women’s apparel in the United States. Should you violate this provision, in addition to the other remedies\nthe Company may pursue hereunder, the Non-Competition Period will be extended by the number of months you were in violation of this\nParagraph 2(b) and you shall have no further rights under Paragraphs 2(c), 2(d) and 2(e). Notwithstanding the foregoing, passive ownership of\nless than 2% of any class of securities of a public company shall not violate this Section 2(b).\n(c) If you are terminated by the Company without cause (as defined Paragraph 2(f) below, “Cause”) or if you resign from your employment,\nduring the Non-Competition Period the Company shall pay you an amount equivalent to your base salary times 1.5 (“Separation Pay”),\npayable in substantially equal installments in accordance with the Company’s regular payroll cycle, and you will continue to receive all\nbenefits under the Company’s medical, dental and vision benefit plans to the same extent as if you were an employee of the Company. If you\nresign from your employment, the Company may waive the provisions of Paragraph 2(b) or shorten the Non-Competition Period by providing\nyou written notice of the waiver or the shortened Non-Competition Period within 10 business days of your resignation, in which case (i) you\nwill only be bound by the restrictions in Paragraph 2(b) above during the shortened Non-Competition Period (but will continue to remain\nbound by the restrictions in Paragraphs 1 and 2(a) above), and (ii) the Company will have no obligation to pay you Separation Pay or continue\nyour benefits if it waives the provisions of Paragraph 2(b) above or if the Company shortens the Non-Competition Period pursuant to this\nParagraph 2(c), the Company will only pay you a pro rata portion of the Separation Pay as prorated in proportion to the shortened Non-\nCompetition Period and continue your benefits only during the shortened Non-Competition Period.\n(d) If you are terminated by the Company without Cause and have never been a “Section 162(m) Employee” (as defined below), in addition to the\nSeparation Pay you will also be entitled to an amount equal to your targeted bonus under the Management Performance Compensation Plan\n(“AMIP”) (or if the AMIP Plan is not then in effect, under the annual cash bonus plan in effect at the time of the termination of your\nemployment), for the season in which you are terminated (or year in which you are terminated if the bonus plan target for you is then an annual\ntarget). For those associates who in any year have been or become “covered employees” within the meaning of Section 162(m) (“Section\n162(m) Employee”) of the Internal Revenue Code of 1986, as amended (the “Code”), thereafter if you are terminated by the Company without\nCause, you will also be eligible for a bonus under the AMIP Plan (or if the AMIP Plan is not then in effect, under the annual cash bonus plan\nin effect at the time of the termination of your employment), for the season in which you are terminated (or year in which you are terminated if\nthe bonus plan target for you is then an annual target) as if you had remained an active associate for the season or entire year, as the case may\nbe, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the AMIP bonus, if any, payable\nunder this Paragraph 2(d) when bonuses are paid to other Company executives under the AMIP Plan, or the annual cash bonus plan in effect at\nthe time of termination.\n(e) If you are terminated by the Company without Cause, you will also receive payment of all monies earned but not yet vested under the\nRestricted Cash feature of the AMIP Plan, including monies earned or to be earned in the season in which you are terminated (or year in which\nyou are terminated if the restricted cash feature target for you is then an annual target) as if you had remained an active associate for the season\nor entire year, as the case may be, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the\nearned monies in the restricted cash feature of the AMIP Plan, if any, in accordance with the payment schedule for active associates.\n(f) For purposes of this Agreement, “Cause” shall be defined as: (1) conviction for the commission of any act or acts constituting a felony under\nthe laws of the United States or any state thereof; (2) action toward the Company involving dishonesty; (3) refusal to abide by or follow\nreasonable written directions of the CEO, which does not cease within ten business days after such written notice regarding such refusal has\nbeen given to you by the CEO; (4) gross nonfeasance which does not cease within ten business days after written notice regarding such\nnonfeasance has been given to you by the CEO; or (5) failure to comply with the provisions of Paragraphs 1, 2(a) or 2(b) of this Agreement, or\nother willful conduct which is intended to have and does have a material adverse impact on the Company.\n(g) In order to receive Separation Pay and the continued benefits described in Paragraph 2(c) and the payments described in Paragraph 2(d) and\n2(e) above, you will be required to sign a separation agreement that is satisfactory to the Company and includes, but is not limited to, a general\nwaiver and release of all claims and potential claims against the Company and a non-disparagement provision. You must sign the separation\nagreement within 22 days of receiving it.\n(h) To the extent required by Section 409A of the Code, and applicable guidance issued thereunder, payments under Paragraphs 2(c), 2(d) and 2(e)\nthat would otherwise be payable during the six-month period immediately following your termination of employment by the Company shall\ninstead be paid on the first business day after the expiration of such six-month period.\n(i) Notwithstanding any other provision of this Agreement to the contrary, in the event you fail to comply with Paragraphs 1, 2(a) or 2(b) above,\nall of your rights hereunder to any future payments or benefits as described in Paragraphs 2(c), 2(d) and 2(e) above, and all rights with respect\nto any unexercised stock options you may have shall be forfeited; provided that, the foregoing shall not apply if such failure of compliance\nwith Paragraphs 2(a) or 2(b) commences following an Acceleration Event (as defined in the Company’s 2003 Equity Incentive Plan).\n3. If you commit a breach of any of the provisions of Paragraphs 1 and 2 of this Agreement, the Company shall have the right to have such\nprovisions specifically enforced and to seek temporary, preliminary and/or permanent injunctive relief, without limitation to any available\nforms of equitable or other relief to which the Company may be entitled, by any court having jurisdiction without the necessity of posting a\nbond or other security. You hereby acknowledge and agree that any such breach or anticipatory or threatened breach will cause irreparable\ninjury to the Company and that money damages will not provide an adequate remedy to the Company.\n4. Intellectual Property. You acknowledge that all discoveries, innovations, designs and useful ideas that you may originate which relate to or\nwould be useful to the Company’s business, including those developed on your own time, shall vest in the Company on the date they are\noriginated and shall become the exclusive property of the Company. Without additional consideration, you further agree that you will sign all\nnecessary applications with respect to such property which the Company may prepare at its own expense.\n5. Severability & Governing Law. All provisions of this Agreement are severable. If any provision of this Agreement or the application of any\nprovision of the Agreement is determined to be invalid or unenforceable to any extent or for any reason, all other provisions of this Agreement\nwill remain in full force and effect and will continue to be enforceable to the fullest extent permitted by law, except that if the restraints in\nParagraph 2(b) are held invalid or unenforceable in their entirety the Company shall have no obligation to make the payments or provide the\nbenefits specified in Paragraphs 2(c), 2(d) and 2(e). In the event that any provision herein is deemed invalid or unenforceable, you agree that\nthe Court shall modify the provision so as to make it enforceable to the fullest extent permitted by law. This Agreement shall be governed by\nthe laws of the State of New York, applicable to contracts and to be performed therein, without regard to its conflicts of laws principles.\n6. Waiver. The failure of the Company to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the\nsame or of the right of the Company to enforce the same. Waiver by the Company of any breach or default by you (or by any other associate)\nof any term or provision of this Agreement (or any similar agreement between the Company and you or any other associate) shall not operate\nas a waiver of any other breach or default.\n7. Entire Agreement. Except as set forth in the next sentence, you hereby agree that this Agreement supersedes any other agreement you may\nhave with the Company with respect to severance, non-solicitation of associates and non-competition. In the event a Change in Control (as\ndefined in the AnnTaylor Stores Corporation Special Severance Plan) occurs prior to the termination of your employment, you will be eligible\nfor benefits pursuant to the terms of such Special Severance Plan (as then in effect) and this Agreement shall become null and void, other than\nthe provisions set forth in Paragraph 1.\n8. At-Will Employment. Nothing in this Agreement constitutes a contract of continuing employment. Your employment is and will continue to be\n“at-will” which means it is for no fixed term or duration and either you or the Company may terminate the employment relationship at any\ntime with or without cause and for any reason or no reason, with or without prior notice. Please sign below to indicate your agreement to the\nterms and conditions of this Agreement.\n9. Nothing in this Agreement shall affect or impair any rights you may have to indemnification for attorneys’ fees, costs and/or expenses pursuant\nto applicable statutes, D&O insurance, Certificates of Incorporation and Bylaws of the Company, its affiliates or subsidiaries.\nPlease sign and return this Agreement on or before your first day of employment.\nANN TAYLOR:\nASSOCIATE:\nBY: /s/ Mark G. Morrison\n/s/ Gary Muto\nMark G. Morrison\nExecutive Vice President, Human Resources\nDate: 11-6 -08\nGary Muto\nPresident, Ann Taylor LOFT\nDate:	EX-10.1 2 dex101.htm CONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION AGREEMENT Exhibit 10.1\nCONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION AGREEMENT\nAs an associate of Ann Taylor, Inc. (the “Company”), you will have access to or may develop trade secrets, intellectual property, and other\nconfidential and proprietary information of the Company. Therefore, in consideration of your employment and your eligibility for the payments described in Paragraph 2 below, and in recognition of the highly competitive nature of the Company’s business, you agree as follows: 1.\n@)\n(b)\n©\n(a)\n(b)\nProtection of Confidential Information.\nYou acknowledge that your employment by the Company involves your obtaining knowledge of Confidential Information (as defined below)\nregarding the business and affairs of the Company.\nAccordingly, you agree that:\n(i) except in compliance with legal process, you will keep secret all Confidential Information and other confidential matters of the Company\nwhich are not otherwise in the public domain and will not disclose them to anyone outside of the Company, wherever located (other than\nto a person to whom disclosure is reasonably necessary or appropriate in connection with the performance of your duties as an employee\nof the Company), either during or after your employment, except with the prior written consent of the Chief Executive Officer or the\nGeneral Counsel of the Company. In the event that you are required to disclose any Confidential Information or other confidential\nmatters of the Company to comply with legal process, you shall provide reasonable advance notice of such legal process to the General\nCounsel of the Company prior to disclosure of any Confidential Information or confidential matters and will not challenge the\nCompany’s standing or ability to seek an order of protection or otherwise seek to prevent or limit disclosure pursuant to such legal\nprocess consistent with applicable law;\n(i) you will deliver promptly to the Company on termination of your employment or at any other time the Company may so request, all\nmemoranda, notes, records, customer lists, reports and other documents (whether in paper or electronic form and all copies thereof)\nrelating to the business of the Company and all other Company property which you obtained or developed while employed by, or\notherwise serving or acting on behalf of, the Company and which you may then possess or have under your control, whether directly or\nindirectly; and\n(iii) you will not use Confidential Information for your personal benefit or for the benefit of another person or entity.\nFor purposes of this Agreement, “Confidential Information” refers to information of the Company (including its affiliated companies) or its\nsuppliers, technology service providers, licensors, clients, and employees, including without limitation information relating to designs,\nproducts, processes, formulas, merchandising, real estate strategy, contract terms, client lists, sourcing information and strategies, technology,\nmarketing plans, advertising, corporate assessments and strategic plans, financial and statistical information, accounting information, pricing\nand business affairs, associate compensation and relative skills and abilities, which have been or are disclosed or available to you and which\nare either designated at the time of disclosure as confidential or which you know or have reason to know are confidential, regardless of the\nform or media in which such information is disclosed.\nNon-solicitation of Associates; Non-competition.\nDuring your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Solicitation Period”), you shall not directly or indirectly, (1) solicit, induce, or attempt to influence any associate at\nthe director level or above to leave his or her employment with the Company or (2) hire or attempt to hire any associate of the Company at the\ndirector level or above, directly or indirectly through a new employer or other person or entity, to join you in the pursuit of any business\nactivity (whether or not such activity involves engaging or participating in a business that competes, or plans to compete, with the Company or\nany of its products). Should you violate this provision, in addition to the other remedies the Company may pursue hereunder, the Non-\nSolicitation Period will be extended by the number of months you were in violation of this Paragraph 2(a) and you shall have no further rights\nunder Paragraphs 2(c), 2(d) and 2(e).\nDuring your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Competition Period”), you shall not, directly or\n©\n(d)\n(®)\n®\n(8)\nindirectly, without the prior written consent of the Company, work for, be employed, affiliated, engaged or associated with or contribute to the\nefforts (as an employee, owner, stockholder, partner, director, officer, consultant or otherwise) of a business that is, or plans to be, a Competitor\n(as defined herein) of the Company at the time of termination. As used herein, “Competitor” means a business or other entity engaged in the\nmanufacture, design and/or sale of women’s apparel in the United States. Should you violate this provision, in addition to the other remedies\nthe Company may pursue hereunder, the Non-Competition Period will be extended by the number of months you were in violation of this\nParagraph 2(b) and you shall have no further rights under Paragraphs 2(c), 2(d) and 2(e). Notwithstanding the foregoing, passive ownership of\nless than 2% of any class of securities of a public company shall not violate this Section 2(b).\nIf you are terminated by the Company without cause (as defined Paragraph 2(f) below, “Cause”) or if you resign from your employment,\nduring the Non-Competition Period the Company shall pay you an amount equivalent to your base salary times 1.5 (“Separation Pay™),\npayable in substantially equal installments in accordance with the Company’s regular payroll cycle, and you will continue to receive all\nbenefits under the Company’s medical, dental and vision benefit plans to the same extent as if you were an employee of the Company. If you\nresign from your employment, the Company may waive the provisions of Paragraph 2(b) or shorten the Non-Competition Period by providing\nyou written notice of the waiver or the shortened Non-Competition Period within 10 business days of your resignation, in which case (i) you\nwill only be bound by the restrictions in Paragraph 2(b) above during the shortened Non-Competition Period (but will continue to remain\nbound by the restrictions in Paragraphs 1 and 2(a) above), and (ii) the Company will have no obligation to pay you Separation Pay or continue\nyour benefits if it waives the provisions of Paragraph 2(b) above or if the Company shortens the Non-Competition Period pursuant to this\nParagraph 2(c), the Company will only pay you a pro rata portion of the Separation Pay as prorated in proportion to the shortened Non-\nCompetition Period and continue your benefits only during the shortened Non-Competition Period.\nIf you are terminated by the Company without Cause and have never been a “Section 162(m) Employee” (as defined below), in addition to the\nSeparation Pay you will also be entitled to an amount equal to your targeted bonus under the Management Performance Compensation Plan\n(“AMIP”) (or if the AMIP Plan is not then in effect, under the annual cash bonus plan in effect at the time of the termination of your\nemployment), for the season in which you are terminated (or year in which you are terminated if the bonus plan target for you is then an annual\ntarget). For those associates who in any year have been or become “covered employees” within the meaning of Section 162(m) (“Section\n162(m) Employee”) of the Internal Revenue Code of 1986, as amended (the “Code”), thereafter if you are terminated by the Company without\nCause, you will also be eligible for a bonus under the AMIP Plan (or if the AMIP Plan is not then in effect, under the annual cash bonus plan\nin effect at the time of the termination of your employment), for the season in which you are terminated (or year in which you are terminated if\nthe bonus plan target for you is then an annual target) as if you had remained an active associate for the season or entire year, as the case may\nbe, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the AMIP bonus, if any, payable\nunder this Paragraph 2(d) when bonuses are paid to other Company executives under the AMIP Plan, or the annual cash bonus plan in effect at\nthe time of termination.\nIf you are terminated by the Company without Cause, you will also receive payment of all monies earned but not yet vested under the\nRestricted Cash feature of the AMIP Plan, including monies earned or to be earned in the season in which you are terminated (or year in which\nyou are terminated if the restricted cash feature target for you is then an annual target) as if you had remained an active associate for the season\nor entire year, as the case may be, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the\nearned monies in the restricted cash feature of the AMIP Plan, if any, in accordance with the payment schedule for active associates.\nFor purposes of this Agreement, “Cause” shall be defined as: (1) conviction for the commission of any act or acts constituting a felony under\nthe laws of the United States or any state thereof; (2) action toward the Company involving dishonesty; (3) refusal to abide by or follow\nreasonable written directions of the CEO, which does not cease within ten business days after such written notice regarding such refusal has\nbeen given to you by the CEO; (4) gross nonfeasance which does not cease within ten business days after written notice regarding such\nnonfeasance has been given to you by the CEO; or (5) failure to comply with the provisions of Paragraphs 1, 2(a) or 2(b) of this Agreement, or\nother willful conduct which is intended to have and does have a material adverse impact on the Company.\nIn order to receive Separation Pay and the continued benefits described in Paragraph 2(c) and the payments described in Paragraph 2(d) and\n2(e) above, you will be required to sign a separation agreement that is satisfactory to the Company and includes, but is not limited to, a general\nwaiver and release of all claims and potential claims against the Company and a non-disparagement provision. You must sign the separation\nagreement within 22 days of receiving it.\n(h)\nTo the extent required by Section 409A of the Code, and applicable guidance issued thereunder, payments under Paragraphs 2(c), 2(d) and 2(e)\nthat would otherwise be payable during the six-month period immediately following your termination of employment by the Company shall\ninstead be paid on the first business day after the expiration of such six-month period.\nNotwithstanding any other provision of this Agreement to the contrary, in the event you fail to comply with Paragraphs 1, 2(a) or 2(b) above,\nall of your rights hereunder to any future payments or benefits as described in Paragraphs 2(c), 2(d) and 2(e) above, and all rights with respect\nto any unexercised stock options you may have shall be forfeited; provided that, the foregoing shall not apply if such failure of compliance\nwith Paragraphs 2(a) or 2(b) commences following an Acceleration Event (as defined in the Company’s 2003 Equity Incentive Plan).\nIf you commit a breach of any of the provisions of Paragraphs 1 and 2 of this Agreement, the Company shall have the right to have such\nprovisions specifically enforced and to seek temporary, preliminary and/or permanent injunctive relief, without limitation to any available\nforms of equitable or other relief to which the Company may be entitled, by any court having jurisdiction without the necessity of posting a\nbond or other security. You hereby acknowledge and agree that any such breach or anticipatory or threatened breach will cause irreparable\ninjury to the Company and that money damages will not provide an adequate remedy to the Company.\nIntellectual Property. You acknowledge that all discoveries, innovations, designs and useful ideas that you may originate which relate to or\nwould be useful to the Company’s business, including those developed on your own time, shall vest in the Company on the date they are\noriginated and shall become the exclusive property of the Company. Without additional consideration, you further agree that you will sign all\nnecessary applications with respect to such property which the Company may prepare at its own expense.\nSeverability & Governing Law. All provisions of this Agreement are severable. If any provision of this Agreement or the application of any\nprovision of the Agreement is determined to be invalid or unenforceable to any extent or for any reason, all other provisions of this Agreement\nwill remain in full force and effect and will continue to be enforceable to the fullest extent permitted by law, except that if the restraints in\nParagraph 2(b) are held invalid or unenforceable in their entirety the Company shall have no obligation to make the payments or provide the\nbenefits specified in Paragraphs 2(c), 2(d) and 2(e). In the event that any provision herein is deemed invalid or unenforceable, you agree that\nthe Court shall modify the provision so as to make it enforceable to the fullest extent permitted by law. This Agreement shall be governed by\nthe laws of the State of New York, applicable to contracts and to be performed therein, without regard to its conflicts of laws principles.\nWaiver. The failure of the Company to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the\nsame or of the right of the Company to enforce the same. Waiver by the Company of any breach or default by you (or by any other associate)\nof any term or provision of this Agreement (or any similar agreement between the Company and you or any other associate) shall not operate\nas a waiver of any other breach or default.\nEntire Agreement. Except as set forth in the next sentence, you hereby agree that this Agreement supersedes any other agreement you may\nhave with the Company with respect to severance, non-solicitation of associates and non-competition. In the event a Change in Control (as\ndefined in the AnnTaylor Stores Corporation Special Severance Plan) occurs prior to the termination of your employment, you will be eligible\nfor benefits pursuant to the terms of such Special Severance Plan (as then in effect) and this Agreement shall become null and void, other than\nthe provisions set forth in Paragraph 1.\n \nAt-Will Employment. Nothing in this Agreement constitutes a contract of continuing employment. Your employment is and will continue to be\n“at-will” which means it is for no fixed term or duration and either you or the Company may terminate the employment relationship at any\ntime with or without cause and for any reason or no reason, with or without prior notice. Please sign below to indicate your agreement to the\nterms and conditions of this Agreement.\n9.  Nothing in this Agreement shall affect or impair any rights you may have to indemnification for attorneys’ fees, costs and/or expenses pursuant\nto applicable statutes, D&O insurance, Certificates of Incorporation and Bylaws of the Company, its affiliates or subsidiaries.\nPlease sign and return this Agreement on or before your first day of employment.\nANN TAYLOR: ASSOCIATE:\nBY: /s/ Mark G. Morrison /s/  Gary Muto\nMark G. Morrison Gary Muto\nExecutive Vice President, Human Resources President, Ann Taylor LOFT\nDate: 11-6-08 Date:	EX-10.1 2 dex101.htm CONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION\nAGREEMENT\nExhibit 10.1\nCONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION AGREEMENT\nAs an associate of Ann Taylor, Inc. (the "Company"), you will have access to or may develop trade secrets, intellectual property, and other\nconfidential and proprietary information of the Company. Therefore, in consideration of your employment and your eligibility for the payments\ndescribed in Paragraph 2 below, and in recognition of the highly competitive nature of the Company's business, you agree as follows:\n1.\nProtection of Confidential Information.\n(a)\nYou acknowledge that your employment by the Company involves your obtaining knowledge of Confidentia Information (as defined below)\nregarding the business and affairs of the Company.\n(b) Accordingly, you agree that:\n(i)\nexcept in compliance with legal process, you will keep secret all Confidential Information and other confidential matters of the Company\nwhich are not otherwise in the public domain and will not disclose them to anyone outside of the Company, wherever located (other than\nto a person to whom disclosure is reasonably necessary or appropriate in connection with the performance of your duties as an employee\nof the Company), either during or after your employment, except with the prior written consent of the Chief Executive Officer or the\nGeneral Counsel of the Company. In the event that you are required to disclose any Confidential Information or other confidential\nmatters of the Company to comply with legal process, you shall provide reasonable advance notice of such legal process to the General\nCounsel of the Company prior to disclosure of any Confidential Information or confidential matters and will not challenge the\nCompany's standing or ability to seek an order of protection or otherwise seek to prevent or limit disclosure pursuant to such legal\nprocess consistent with applicable law;\n(ii)\nyou will deliver promptly to the Company on termination of your employment or at any other time the Company may so request, all\nmemoranda, notes, records, customer lists, reports and other documents (whether in paper or electronic form and all copies thereof)\nrelating\nto\nthe\nbusiness\nof\nthe\nCompany\nand\nall\nother\nCompany\nproperty\nwhich\nyou\nobtained\nor\ndeveloped\nwhile\nemployed\nby,\nor\notherwise serving or acting on behalf of, the Company and which you may then possess or have under your control, whether directly or\nindirectly; and\n(iii) you will not use Confidential Information for your personal benefit or for the benefit of another person or entity.\n(c)\nFor purposes of this Agreement, "Confidential Information" refers to information of the Company (including its affiliated companies) or its\nsuppliers, technology service providers, licensors, clients, and employees, including without limitation information relating to designs,\nproducts, processes, formulas, merchandising, real estate strategy, contract terms, client lists, sourcing information and strategies, technology,\nmarketing plans, advertising, corporate assessments and strategic plans, financial and statistical information, accounting information, pricing\nand business affairs, associate compensation and relative skills and abilities, which have been or are disclosed or available to you and which\nare either designated at the time of disclosure as confidentia or which you know or have reason to know are confidential, regardless of the\nform or media in which such information is disclosed.\n2. Non-solicitation of Associates; Non-competition.\n(a)\nDuring your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the "Non-Solicitation Period"), you shall not directly or indirectly, (1) solicit, induce, or attempt to influence any associate at\nthe director level or above to leave his or her employment with the Company or (2) hire or attempt to hire any associate of the Company at the\ndirector level or above, directly or indirectly through a new employer or other person or entity, to join you in the pursuit of any business\nactivity (whether or not such activity involves engaging or participating in a business that competes, or plans to compete, with the Company or\nany of its products). Should you violate this provision, in addition to the other remedies the Company may pursue hereunder, the Non-\nSolicitation Period will be extended by the number of months you were in violation of this Paragraph 2(a) and you shall have no further rights\nunder Paragraphs 2(c), 2(d) and 2(e).\n(b) During your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the "Non-Competition Period"), you shall not, directly or\nindirectly, without the prior written consent of the Company, work for, be employed, affiliated, engaged or associated with or contribute to the\nefforts (as an employee, owner, stockholder, partner, director, officer, consultant or otherwise) of a business that is, or plans to be, a Competitor\n(as defined herein) of the Company at the time of termination. As used herein, "Competitor" means a business or other entity engaged in the\nmanufacture, design and/or sale of women's apparel in the United States. Should you violate this provision, in addition to the other remedies\nthe Company may pursue hereunder, the Non-Competition Period will be extended by the number of months you were in violation of this\nParagraph 2(b) and you shal have no further rights under Paragraphs 2(c), 2(d) and 2(e). Notwithstanding the foregoing, passive ownership of\nless than 2% of any class of securities of a public company shall not violate this Section 2(b).\n(c)\nIf you are terminated by the Company without cause (as defined Paragraph 2(f) below, "Cause") or if you resign from your employment,\nduring the Non-Competition Period the Company shall pay you an amount equivalent to your base salary times 1.5 ("Separation Pay"),\npayable in substantially equal installments in accordance with the Company's regular payroll cycle, and you will continue to receive all\nbenefits under the Company's medical, dental and vision benefit plans to the same extent as if you were an employee of the Company. If you\nresign from your employment, the Company may waive the provisions of Paragraph 2(b) or shorten the Non-Competition Period by providing\nyou written notice of the waiver or the shortened Non-Competition Period within 10 business days of your resignation, in which case (i) you\nwill only be bound by the restrictions in Paragraph 2(b) above during the shortened Non-Competition Period (but will continue to remain\nbound by the restrictions in Paragraphs 1 and 2(a) above), and (ii) the Company will have no obligation to pay you Separation Pay or continue\nyour benefits if it waives the provisions of Paragraph 2(b) above or if the Company shortens the Non-Competition Period pursuant to this\nParagraph 2(c), the Company will only pay you a pro rata portion of the Separation Pay as prorated in proportion to the shortened Non-\nCompetition Period and continue your benefits only during the shortened Non-Competition Period.\n(d)\nIf you are terminated by the Company without Cause and have never been a "Section 162(m) Employee" (as defined below), in addition to the\nSeparation Pay you will also be entitled to an amount equal to your targeted bonus under the Management Performance Compensation Plan\n("AMIP") (or if the AMIP Plan is not then in effect, under the annual cash bonus plan in effect at the time of the termination of your\nemployment), for the season in which you are terminated (or year in which you are terminated if the bonus plan target for you is then an annual\ntarget). For those associates who in any year have been or become "covered employees" within the meaning of Section 162(m) ("Section\n162(m) Employee") of the Internal Revenue Code of 1986, as amended (the "Code"), thereafter if you are terminated by the Company without\nCause, you will also be eligible for a bonus under the AMIP Plan (or if the AMIP Plan is not then in effect, under the annual cash bonus plan\nin effect at the time of the termination of your employment), for the season in which you are terminated (or year in which you are terminated if\nthe bonus plan target for you is then an annual target) as if you had remained an active associate for the season or entire year, as the case may\nbe, such bonus to be based upon actual performance for such season or fiscal year The Company will pay the AMIP bonus, if any, payable\nunder this Paragraph 2(d) when bonuses are paid to other Company executives under the AMIP Plan, or the annual cash bonus plan in effect at\nthe time of termination.\n(e)\nIf you are terminated by the Company without Cause, you will also receive payment of all monies earned but not yet vested under the\nRestricted Cash feature of the AMIP Plan, including monies earned or to be earned in the season in which you are terminated (or year in which\nyou are terminated if the restricted cash feature target for you is then an annual target) as if you had remained an active associate for the season\nor entire year, as the case may be, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the\nearned monies in the restricted cash feature of the AMIP Plan, if any, in accordance with the payment schedule for active associates.\n(f)\nFor purposes of this Agreement, "Cause" shall be defined as: (1) conviction for the commission of any act or acts constituting a felony under\nthe laws of the United States or any state thereof; (2) action toward the Company involving dishonesty; (3) refusal to abide by or follow\nreasonable written directions of the CEO, which does not cease within ten business days after such written notice regarding such refusal has\nbeen given to you by the CEO; (4) gross nonfeasance which does not cease within ten business days after written notice regarding such\nnonfeasance has been given to you by the CEO; or (5) failure to comply with the provisions of Paragraphs 1, 2(a) or 2(b) of this Agreement, or\nother willful conduct which is intended to have and does have a material adverse impact on the Company.\n(g)\nIn order to receive Separation Pay and the continued benefits described in Paragraph 2(c) and the payments described in Paragraph 2(d)\nand\n2(e) above, you will be required to sign a separation agreement that is satisfactory to the Company and includes, but is not limited to, a general\nwaiver and release of all claims and potential claims against the Company and a non-disparagement provision. You must sign the separation\nagreement within 22 days of receiving it.\n(h)\nTo the extent required by Section 409A of the Code, and applicable guidance issued thereunder, payments under Paragraphs 2(c), 2(d) and 2(e)\nthat would otherwise be payable during the six-month period immediately following your termination of employment by the Company shall\ninstead be paid on the first business day after the expiration of such six-month period.\n(i) Notwithstanding any other provision of this Agreement to the contrary, in the event you fail to comply with Paragraphs 1, 2(a) or 2(b) above,\nall of your rights hereunder to any future payments or benefits as described in Paragraphs 2(c), 2(d) and 2(e) above, and all rights with\nrespect\nto any unexercised stock options you may have shall be forfeited; provided that, the foregoing shall not apply if such failure of compliance\nwith Paragraphs 2(a) or 2(b) commences following an Acceleration Event (as defined in the Company's 2003 Equity Incentive Plan).\n3.\nIf you commit a breach of any of the provisions of Paragraphs 1 and 2 of this Agreement, the Company shall have the right to have such\nprovisions specifically enforced and to seek temporary, preliminary and/or permanent injunctive relief, without limitation to any available\nforms of equitable or other relief to which the Company may be entitled, by any court having jurisdiction without the necessity of posting a\nbond or other security. You hereby acknowledge and agree that any such breach or anticipatory or threatened breach will cause irreparable\ninjury to the Company and that money damages will not provide an adequate remedy to the Company.\n4.\nIntellectual Property.. You acknowledge that all discoveries, innovations, designs and useful ideas that you may originate which relate to or\nwould be useful to the Company's business, including those developed on your own time, shall vest in the Company on the date they are\noriginated and shall become the exclusive property of the Company. Without additional consideration, you further agree that you will sign all\nnecessary applications with respect to such property which the Company may prepare at its own expense.\n5.\nSeverability. & Governing Law. All provisions of this Agreement are severable. If any provision of this Agreement or the application of any\nprovision of the Agreement is determined to be invalid or unenforceable to any extent or for any reason, all other provisions of this Agreement\nwill remain in full force and effect and will continue to be enforceable to the fullest extent permitted by law, except that if the restraints in\nParagraph 2(b) are held invalid or unenforceable in their entirety the Company shall have no obligation to make the payments or provide the\nbenefits specified in Paragraphs 2(c), 2(d) and 2(e). In the event that any provision herein is deemed invalid or unenforceable, you agree that\nthe Court shall modify the provision so as to make it enforceable to the fullest extent permitted by law. This Agreement shall be governed by\nthe laws of the State of New York, applicable to contracts and to be performed therein, without regard to its conflicts of laws principles.\n6.\nWaiver. The failure of the Company to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the\nsame or of the right of the Company to enforce the same. Waiver by the Company of any breach or default by you (or by any other associate)\nof any term or provision of this Agreement (or any similar agreement between the Company and you or any other associate) shall not operate\nas a waiver of any other breach or default.\n7.\nEntire Agreement. Except as set forth in the next sentence, you hereby agree that this Agreement supersedes any other agreement you may\nhave with the Company with respect to severance, non-solicitation of associates and non-competition. In the event a Change in Control\n(as\ndefined in the AnnTaylor Stores Corporation Special Severance Plan) occurs prior to the termination of your employment, you will be eligible\nfor benefits pursuant to the terms of such Special Severance Plan (as then in effect) and this Agreement shall become null and void, other than\nthe provisions set forth in Paragraph 1.\n8.\nAt-Will Employment. Nothing in this Agreement constitutes a contract of continuing employment. Your employment is and will continue to be\n"at-will" which means it is for no fixed term or duration and either you or the Company may terminate the employment relationship at any\ntime with or without cause and for any reason or no reason, with or without prior notice. Please sign below to indicate your agreement to the\nterms and conditions of this Agreement.\n9.\nNothing in this Agreement shall affect or impair any rights you may have to indemnification for attorneys' fees, costs and/or expenses pursuant\nto applicable statutes, D&O insurance, Certificates of Incorporation and Bylaws of the Company, its affiliates or subsidiaries.\nPlease sign and return this Agreement on or before your first day of employment.\nANN TAYLOR:\nASSOCIATE:\nBY: /s/ Mark G. Morrison\n/s/ Gary Muto\nMark G. Morrison\nGary Muto\nExecutive Vice President, Human Resources\nPresident, Ann Taylor LOFT\nDate: 11-6-08\nDate:	EX-10.1 2 dex101.htm CONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON-COMPETITION\nAGREEMENT\nExhibit 10.1\nCONFIDENTIALITY, NON-SOLICITATION OF ASSOCIATES AND NON -COMPETITION AGREEMENT\nAs an associate of Ann Taylor, Inc. (the “Company”), you will have access to or may develop trade secrets, intellectual property, and other\nconfidential and proprietary information of the Company. Therefore, in consideration of your employment and your eligibility for the payments\ndescribed in Paragraph 2 below, and in recognition of the highly competitive nature of the Company’s business, you agree as follows:\n1. Protection of Confidential Information.\n(a) You acknowledge that your employment by the Company involves your obtaining knowledge of Confidential Information (as defined below)\nregarding the business and affairs of the Company.\n(b) Accordingly, you agree that:\n(i) except in compliance with legal process, you will keep secret all Confidential Information and other confidential matters of the Company\nwhich are not otherwise in the public domain and will not disclose them to anyone outside of the Company, wherever located (other than\nto a person to whom disclosure is reasonably necessary or appropriate in connection with the performance of your duties as an employee\nof the Company), either during or after your employment, except with the prior written consent of the Chief Executive Officer or the\nGeneral Counsel of the Company. In the event that you are required to disclose any Confidential Information or other confidential\nmatters of the Company to comply with legal process, you shall provide reasonable advance notice of such legal process to the General\nCounsel of the Company prior to disclosure of any Confidential Information or confidential matters and will not challenge the\nCompany’s standing or ability to seek an order of protection or otherwise seek to prevent or limit disclosure pursuant to such legal\nprocess consistent with applicable law;\n(ii) you will deliver promptly to the Company on termination of your employment or at any other time the Company may so request, all\nmemoranda, notes, records, customer lists, reports and other documents (whether in paper or electronic form and all copies thereof)\nrelating to the business of the Company and all other Company property which you obtained or developed while employed by, or\notherwise serving or acting on behalf of, the Company and which you may then possess or have under your control, whether directly or\nindirectly; and\n(iii) you will not use Confidential Information for your personal benefit or for the benefit of another person or entity.\n(c) For purposes of this Agreement, “Confidential Information” refers to information of the Company (including its affiliated companies) or its\nsuppliers, technology service providers, licensors, clients, and employees, including without limitation information relating to designs,\nproducts, processes, formulas, merchandising, real estate strategy, contract terms, client lists, sourcing information and strategies, technology,\nmarketing plans, advertising, corporate assessments and strategic plans, financial and statistical information, accounting information, pricing\nand business affairs, associate compensation and relative skills and abilities, which have been or are disclosed or available to you and which\nare either designated at the time of disclosure as confidential or which you know or have reason to know are confidential, regardless of the\nform or media in which such information is disclosed.\n2. Non-solicitation of Associates; Non-competition.\n(a) During your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Solicitation Period”), you shall not directly or indirectly, (1) solicit, induce, or attempt to influence any associate at\nthe director level or above to leave his or her employment with the Company or (2) hire or attempt to hire any associate of the Company at the\ndirector level or above, directly or indirectly through a new employer or other person or entity, to join you in the pursuit of any business\nactivity (whether or not such activity involves engaging or participating in a business that competes, or plans to compete, with the Company or\nany of its products). Should you violate this provision, in addition to the other remedies the Company may pursue hereunder, the Non-\nSolicitation Period will be extended by the number of months you were in violation of this Paragraph 2(a) and you shall have no further rights\nunder Paragraphs 2(c), 2(d) and 2(e).\n(b) During your employment and for a period of 12 months after your separation from the Company for any reason whatsoever, whether voluntary\nor involuntary (the “Non-Competition Period”), you shall not, directly or\nindirectly, without the prior written consent of the Company, work for, be employed, affiliated, engaged or associated with or contribute to the\nefforts (as an employee, owner, stockholder, partner, director, officer, consultant or otherwise) of a business that is, or plans to be, a Competitor\n(as defined herein) of the Company at the time of termination. As used herein, “Competitor” means a business or other entity engaged in the\nmanufacture, design and/or sale of women’s apparel in the United States. Should you violate this provision, in addition to the other remedies\nthe Company may pursue hereunder, the Non-Competition Period will be extended by the number of months you were in violation of this\nParagraph 2(b) and you shall have no further rights under Paragraphs 2(c), 2(d) and 2(e). Notwithstanding the foregoing, passive ownership of\nless than 2% of any class of securities of a public company shall not violate this Section 2(b).\n(c) If you are terminated by the Company without cause (as defined Paragraph 2(f) below, “Cause”) or if you resign from your employment,\nduring the Non-Competition Period the Company shall pay you an amount equivalent to your base salary times 1.5 (“Separation Pay”),\npayable in substantially equal installments in accordance with the Company’s regular payroll cycle, and you will continue to receive all\nbenefits under the Company’s medical, dental and vision benefit plans to the same extent as if you were an employee of the Company. If you\nresign from your employment, the Company may waive the provisions of Paragraph 2(b) or shorten the Non-Competition Period by providing\nyou written notice of the waiver or the shortened Non-Competition Period within 10 business days of your resignation, in which case (i) you\nwill only be bound by the restrictions in Paragraph 2(b) above during the shortened Non-Competition Period (but will continue to remain\nbound by the restrictions in Paragraphs 1 and 2(a) above), and (ii) the Company will have no obligation to pay you Separation Pay or continue\nyour benefits if it waives the provisions of Paragraph 2(b) above or if the Company shortens the Non-Competition Period pursuant to this\nParagraph 2(c), the Company will only pay you a pro rata portion of the Separation Pay as prorated in proportion to the shortened Non-\nCompetition Period and continue your benefits only during the shortened Non-Competition Period.\n(d) If you are terminated by the Company without Cause and have never been a “Section 162(m) Employee” (as defined below), in addition to the\nSeparation Pay you will also be entitled to an amount equal to your targeted bonus under the Management Performance Compensation Plan\n(“AMIP”) (or if the AMIP Plan is not then in effect, under the annual cash bonus plan in effect at the time of the termination of your\nemployment), for the season in which you are terminated (or year in which you are terminated if the bonus plan target for you is then an annual\ntarget). For those associates who in any year have been or become “covered employees” within the meaning of Section 162(m) (“Section\n162(m) Employee”) of the Internal Revenue Code of 1986, as amended (the “Code”), thereafter if you are terminated by the Company without\nCause, you will also be eligible for a bonus under the AMIP Plan (or if the AMIP Plan is not then in effect, under the annual cash bonus plan\nin effect at the time of the termination of your employment), for the season in which you are terminated (or year in which you are terminated if\nthe bonus plan target for you is then an annual target) as if you had remained an active associate for the season or entire year, as the case may\nbe, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the AMIP bonus, if any, payable\nunder this Paragraph 2(d) when bonuses are paid to other Company executives under the AMIP Plan, or the annual cash bonus plan in effect at\nthe time of termination.\n(e) If you are terminated by the Company without Cause, you will also receive payment of all monies earned but not yet vested under the\nRestricted Cash feature of the AMIP Plan, including monies earned or to be earned in the season in which you are terminated (or year in which\nyou are terminated if the restricted cash feature target for you is then an annual target) as if you had remained an active associate for the season\nor entire year, as the case may be, such bonus to be based upon actual performance for such season or fiscal year. The Company will pay the\nearned monies in the restricted cash feature of the AMIP Plan, if any, in accordance with the payment schedule for active associates.\n(f) For purposes of this Agreement, “Cause” shall be defined as: (1) conviction for the commission of any act or acts constituting a felony under\nthe laws of the United States or any state thereof; (2) action toward the Company involving dishonesty; (3) refusal to abide by or follow\nreasonable written directions of the CEO, which does not cease within ten business days after such written notice regarding such refusal has\nbeen given to you by the CEO; (4) gross nonfeasance which does not cease within ten business days after written notice regarding such\nnonfeasance has been given to you by the CEO; or (5) failure to comply with the provisions of Paragraphs 1, 2(a) or 2(b) of this Agreement, or\nother willful conduct which is intended to have and does have a material adverse impact on the Company.\n(g) In order to receive Separation Pay and the continued benefits described in Paragraph 2(c) and the payments described in Paragraph 2(d) and\n2(e) above, you will be required to sign a separation agreement that is satisfactory to the Company and includes, but is not limited to, a general\nwaiver and release of all claims and potential claims against the Company and a non-disparagement provision. You must sign the separation\nagreement within 22 days of receiving it.\n(h) To the extent required by Section 409A of the Code, and applicable guidance issued thereunder, payments under Paragraphs 2(c), 2(d) and 2(e)\nthat would otherwise be payable during the six-month period immediately following your termination of employment by the Company shall\ninstead be paid on the first business day after the expiration of such six-month period.\n(i) Notwithstanding any other provision of this Agreement to the contrary, in the event you fail to comply with Paragraphs 1, 2(a) or 2(b) above,\nall of your rights hereunder to any future payments or benefits as described in Paragraphs 2(c), 2(d) and 2(e) above, and all rights with respect\nto any unexercised stock options you may have shall be forfeited; provided that, the foregoing shall not apply if such failure of compliance\nwith Paragraphs 2(a) or 2(b) commences following an Acceleration Event (as defined in the Company’s 2003 Equity Incentive Plan).\n3. If you commit a breach of any of the provisions of Paragraphs 1 and 2 of this Agreement, the Company shall have the right to have such\nprovisions specifically enforced and to seek temporary, preliminary and/or permanent injunctive relief, without limitation to any available\nforms of equitable or other relief to which the Company may be entitled, by any court having jurisdiction without the necessity of posting a\nbond or other security. You hereby acknowledge and agree that any such breach or anticipatory or threatened breach will cause irreparable\ninjury to the Company and that money damages will not provide an adequate remedy to the Company.\n4. Intellectual Property. You acknowledge that all discoveries, innovations, designs and useful ideas that you may originate which relate to or\nwould be useful to the Company’s business, including those developed on your own time, shall vest in the Company on the date they are\noriginated and shall become the exclusive property of the Company. Without additional consideration, you further agree that you will sign all\nnecessary applications with respect to such property which the Company may prepare at its own expense.\n5. Severability & Governing Law. All provisions of this Agreement are severable. If any provision of this Agreement or the application of any\nprovision of the Agreement is determined to be invalid or unenforceable to any extent or for any reason, all other provisions of this Agreement\nwill remain in full force and effect and will continue to be enforceable to the fullest extent permitted by law, except that if the restraints in\nParagraph 2(b) are held invalid or unenforceable in their entirety the Company shall have no obligation to make the payments or provide the\nbenefits specified in Paragraphs 2(c), 2(d) and 2(e). In the event that any provision herein is deemed invalid or unenforceable, you agree that\nthe Court shall modify the provision so as to make it enforceable to the fullest extent permitted by law. This Agreement shall be governed by\nthe laws of the State of New York, applicable to contracts and to be performed therein, without regard to its conflicts of laws principles.\n6. Waiver. The failure of the Company to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the\nsame or of the right of the Company to enforce the same. Waiver by the Company of any breach or default by you (or by any other associate)\nof any term or provision of this Agreement (or any similar agreement between the Company and you or any other associate) shall not operate\nas a waiver of any other breach or default.\n7. Entire Agreement. Except as set forth in the next sentence, you hereby agree that this Agreement supersedes any other agreement you may\nhave with the Company with respect to severance, non-solicitation of associates and non-competition. In the event a Change in Control (as\ndefined in the AnnTaylor Stores Corporation Special Severance Plan) occurs prior to the termination of your employment, you will be eligible\nfor benefits pursuant to the terms of such Special Severance Plan (as then in effect) and this Agreement shall become null and void, other than\nthe provisions set forth in Paragraph 1.\n8. At-Will Employment. Nothing in this Agreement constitutes a contract of continuing employment. Your employment is and will continue to be\n“at-will” which means it is for no fixed term or duration and either you or the Company may terminate the employment relationship at any\ntime with or without cause and for any reason or no reason, with or without prior notice. Please sign below to indicate your agreement to the\nterms and conditions of this Agreement.\n9. Nothing in this Agreement shall affect or impair any rights you may have to indemnification for attorneys’ fees, costs and/or expenses pursuant\nto applicable statutes, D&O insurance, Certificates of Incorporation and Bylaws of the Company, its affiliates or subsidiaries.\nPlease sign and return this Agreement on or before your first day of employment.\nANN TAYLOR:\nASSOCIATE:\nBY: /s/ Mark G. Morrison\n/s/ Gary Muto\nMark G. Morrison\nExecutive Vice President, Human Resources\nDate: 11-6 -08\nGary Muto\nPresident, Ann Taylor LOFT\nDate:
+6ec8ff0b13d72fd1164419f10e8e7f41.pdf	effective_date jurisdiction party term	Exhibit A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “Agreement”) is made as of this day of\n, 2017 by and between resTORbio, Inc., a\nDelaware corporation (hereinafter referred to collectively with its Affiliates as the “Company”), and Joan Mannick (the “Employee”).\nThe Company desires to employ the Employee to provide services to the Company. In consideration of the employment or the continued\nemployment of the Employee by the Company, the Company and the Employee agree as follows:\n1. Condition of Employment.\nThe Employee acknowledges that Employee’s employment and/or the continuance of that employment with the Company is\ncontingent upon Employee’s agreement to become a party to and adhere to the provisions of this Agreement. The Employee further\nacknowledges that the nature of the Company’s business is such that protection of its proprietary and confidential information and the proprietary\nand confidential information of its Affiliates is critical to the survival and success of the Company’s business.\n2. Proprietary and Confidential Information.\na. The Employee agrees that all information and know-how, whether or not in writing, of a private, secret or confidential nature\nconcerning the Company’s or any Affiliate’s business or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive\nproperty of the Company (or any person or entity designated by the Company). By way of illustration, but not limitation, Proprietary Information\nmay include discoveries, ideas, inventions, products, product improvements, product enhancements, processes, methods, techniques, formulas,\ncompositions, compounds, negotiation strategies and positions, projects, developments, plans (including business and marketing plans), research\ndata, clinical data, financial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used\npursuant to a license agreement), computer software code, computer games, customer, prospect and supplier lists, and contacts at or knowledge\nof customers or prospective customers of the Company or any Affiliate, and the names of, contact information of, and any other data concerning,\nexisting and prospective Affiliates and existing and prospective investors of such Affiliates. The Employee shall not disclose any Proprietary\nInformation to any person or entity other than employees of the Company or use the same for any purposes (other than in the performance of\nEmployee’s duties as an employee of the Company) without written approval by an officer of the Company, either during or after Employee’s\nemployment with the Company. The Employee shall use the Employee’s best efforts to prevent unauthorized publication or disclosure of any of\nthe Company’s Proprietary Information.\nb. The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models, laboratory\nnotebooks, program listings, computer equipment or devices, computer programs or other written, photographic, or other tangible or intangible\nmaterial containing Proprietary Information, whether created by the Employee or others, which shall come into Employee’s custody or\npossession, shall be and are the exclusive property of the Company to be used by the Employee only in the performance of Employee’s duties for\nthe Company and shall not be copied or removed from the Company premises except in the pursuit of the business of the Company. All such\nmaterials or copies thereof and all tangible property of the Company in the custody or possession of the Employee shall be delivered to the\nCompany, upon the earlier of (i) a request by the Company or (ii) termination of Employee’s employment for any reason. After such delivery, the\nEmployee shall not retain any such materials or copies thereof or any such tangible property.\nc. The Employee agrees that Employee’s obligation not to disclose or to use information and materials of the types set forth in\nparagraphs 2(a) and 2(b) above, and Employee’s obligation to return materials and tangible property, set forth in paragraph 2(b) above, also\nextends to such types of information, materials and tangible property of Affiliates, customers of the Company or suppliers to the Company or\nother third parties who may have disclosed or entrusted the same to the Company or to the Employee in the course of the Company’s business.\n3. Scope of Disclosure Restrictions.\nNothing in this Agreement or elsewhere prohibits the Employee from reporting possible violations of state or federal law or regulation to\nany government agency, regulator, or legal authority, or making other disclosures that are protected under the whistleblower provisions of state or\nfederal law or regulation. The Employee is not required to notify the Company that the Employee has made any such reports or disclosures;\nprovided, however, that nothing herein authorizes the disclosure of information the Employee obtained through a communication that was\nsubject to the attorney-client privilege, unless disclosure of the information would otherwise be permitted by an applicable law or rule. Further,\npursuant to the Defend Trade Secrets Act: “An individual shall not be held criminally or civilly liable under any Federal or State trade secret law\nfor the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly,\nor to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other\ndocument filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer\nfor reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the\ncourt proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except\npursuant to court order.”\n4. Non-Disparagement.\nThe Employee shall not, either during Employee’s employment with the Company or thereafter, make or encourage others to make any\nstatement or release any information that is intended to, or reasonably could be foreseen to, disparage, defame or embarrass the Company or any\nof its Affiliates or their respective employees, officers, directors, partners, members or stockholders.\n5. Miscellaneous.\na. Equitable Remedies. The Employee acknowledges that the restrictions contained in this Agreement are necessary for the protection\nof the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that\nany breach or threatened breach of this Agreement is likely to cause the Company substantial and irrevocable damage which is difficult to\nmeasure. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to such other\nremedies which may be available, shall have the right to obtain an injunction from a court restraining such a breach or threatened breach without\nposting bond and the right to specific performance of the provisions of this Agreement and the Employee hereby waives the adequacy of a\nremedy at law as a defense to such relief.\nb. Disclosure of this Agreement. The Employee hereby authorizes the Company to notify others, including but not limited to the\nAffiliates and any of the Employee’s future employers or prospective business associates, of the terms and existence of this Agreement and the\nEmployee’s continuing obligations to the Company hereunder.\nc. Not Employment Contract. The Employee acknowledges that this Agreement does not constitute a contract of employment, does\nnot imply that the Company will continue Employee’s employment for any period of time and does not change the at-will nature of Employee’s\nemployment.\nd. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective\nsuccessors and assigns, including any corporation with which, or into which, the Company may be merged or which may succeed to the\nCompany’s assets or business, provided, however, that the obligations of the Employee are personal and shall not be assigned by Employee. The\nEmployee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any Affiliate thereof to whose\nemploy the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such transfer.\ne. Severability. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and\nenforceability of the remaining provisions shall in no way be affected or impaired thereby.\nf. Waivers. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nother right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to\nor waiver of any right on any other occasion.\ng. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of\nMassachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to\nresolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the Commonwealth of\nMassachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each consents to the\njurisdiction of such a court. The Company and the Employee each hereby irrevocably waive any right to a trial by jury in any action, suit or other\nlegal proceeding arising under or relating to any provision of this Agreement.\nh. Entire Agreement; Amendment. This Agreement supersedes all prior agreements, written or oral, between the Employee and the\nCompany relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part,\nexcept by an agreement in writing signed by the Employee and the Company. The Employee agrees that any change or changes in Employee’s\nduties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\ni. Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect\nthe scope or substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\n[Remainder of the Page Intentionally Left Blank]\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year set forth above.\nWITNESS our hands and seals:\nRESTORBIO, INC.\nACKNOWLEDGED AND AGREED:\nBy:\nName: Chen Schor\nJoan Mannick\nTitle: Chief Executive Officer	Exhibit A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “Agreement”) is made as of this __ day of , 2017 by and between resTORbio, Inc., a\nDelaware corporation (hereinafter referred to collectively with its Affiliates as the “Company”), and Joan Mannick (the “Employee”).\n \nThe Company desires to employ the Employee to provide services to the Company. In consideration of the employment or the continued\nemployment of the Employee by the Company, the Company and the Employee agree as follows:\n1. Condition of Employment.\nThe Employee acknowledges that Employee’s employment and/or the continuance of that employment with the Company is\ncontingent upon Employee’s agreement to become a party to and adhere to the provisions of this Agreement. The Employee further\nacknowledges that the nature of the Company’s business is such that protection of its proprietary and confidential information and the proprietary\nand confidential information of its Affiliates is critical to the survival and success of the Company’s business.\n2. Proprietary and Confidential Information.\na. The Employee agrees that all information and know-how, whether or not in writing, of a private, secret or confidential nature\nconcerning the Company’s or any Affiliate’s business or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive\nproperty of the Company (or any person or entity designated by the Company). By way of illustration, but not limitation, Proprietary Information\nmay include discoveries, ideas, inventions, products, product improvements, product enhancements, processes, methods, techniques, formulas,\ncompositions, compounds, negotiation strategies and positions, projects, developments, plans (including business and marketing plans), research\ndata, clinical data, financial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used\npursuant to a license agreement), computer software code, computer games, customer, prospect and supplier lists, and contacts at or knowledge\nof customers or prospective customers of the Company or any Affiliate, and the names of, contact information of, and any other data concerning,\nexisting and prospective Affiliates and existing and prospective investors of such Affiliates. The Employee shall not disclose any Proprietary\nInformation to any person or entity other than employees of the Company or use the same for any purposes (other than in the performance of\nEmployee’s duties as an employee of the Company) without written approval by an officer of the Company, either during or after Employee’s\nemployment with the Company. The Employee shall use the Employee’s best efforts to prevent unauthorized publication or disclosure of any of\nthe Company’s Proprietary Information.\nb. The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models, laboratory\nnotebooks, program listings, computer equipment or devices, computer programs or other written, photographic, or other tangible or intangible\nmaterial containing Proprietary Information, whether created by the Employee or others, which shall come into Employee’s custody or\npossession, shall be and are the exclusive property of the Company to be used by the Employee only in the performance of Employee’s duties for\nthe Company and shall not be copied or removed from the Company premises except in the pursuit of the business of the Company. All such\nmaterials or copies thereof and all tangible property of the Company in the custody or possession of the Employee shall be delivered to the\nCompany, upon the earlier of (i) a request by the Company or (ii) termination of Employee’s employment for any reason. After such delivery, the\nEmployee shall not retain any such materials or copies thereof or any such tangible property.\nc. The Employee agrees that Employee’s obligation not to disclose or to use information and materials of the types set forth in\nparagraphs 2(a) and 2(b) above, and Employee’s obligation to return materials and tangible property, set forth in paragraph 2(b) above, also\nextends to such types of information, materials and tangible property of Affiliates, customers of the Company or suppliers to the Company or\nother third parties who may have disclosed or entrusted the same to the Company or to the Employee in the course of the Company’s business.\n3. Scope of Disclosure Restrictions.\nNothing in this Agreement or elsewhere prohibits the Employee from reporting possible violations of state or federal law or regulation to\nany government agency, regulator, or legal authority, or making other disclosures that are protected under the whistleblower provisions of state or\nfederal law or regulation. The Employee is not required to notify the Company that the Employee has made any such reports or disclosures;\nprovided, however, that nothing herein authorizes the disclosure of information the Employee obtained through a communication that was\nsubject to the attorney-client privilege, unless disclosure of the information would otherwise be permitted by an applicable law or rule. Further,\npursuant to the Defend Trade Secrets Act: “An individual shall not be held criminally or civilly liable under any Federal or State trade secret law\nfor the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly,\nor to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other\ndocument filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer\nfor reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the\ncourt proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except\npursuant to court order.”\n4. Non-Disparagement.\nThe Employee shall not, either during Employee’s employment with the Company or thereafter, make or encourage others to make any\nstatement or release any information that is intended to, or reasonably could be foreseen to, disparage, defame or embarrass the Company or any\nof its Affiliates or their respective employees, officers, directors, partners, members or stockholders.\n5. Miscellaneous.\na. Equitable Remedies. The Employee acknowledges that the restrictions contained in this Agreement are necessary for the protection\nof the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that\nany breach or threatened breach of this Agreement is likely to cause the Company substantial and irrevocable damage which is difficult to\nmeasure. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to such other\nremedies which may be available, shall have the right to obtain an injunction from a court restraining such a breach or threatened breach without\nposting bond and the right to specific performance of the provisions of this Agreement and the Employee hereby waives the adequacy of a\nremedy at law as a defense to such relief.\nb. Disclosure of this Agreement. The Employee hereby authorizes the Company to notify others, including but not limited to the\nAffiliates and any of the Employee’s future employers or prospective business associates, of the terms and existence of this Agreement and the\nEmployee’s continuing obligations to the Company hereunder.\n \nc. Not Employment Contract. The Employee acknowledges that this Agreement does not constitute a contract of employment, does\nnot imply that the Company will continue Employee’s employment for any period of time and does not change the at-will nature of Employee’s\nemployment.\n \nd. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective\nsuccessors and assigns, including any corporation with which, or into which, the Company may be merged or which may succeed to the\nCompany’s assets or business, provided, however, that the obligations of the Employee are personal and shall not be assigned by Employee. The\nEmployee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any Affiliate thereof to whose\nemploy the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such transfer.\ne. Severability. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and\nenforceability of the remaining provisions shall in no way be affected or impaired thereby.\nf. Waivers. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nother right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to\nor waiver of any right on any other occasion.\ng. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of\nMassachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to\nresolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the Commonwealth of\nMassachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each consents to the\njurisdiction of such a court. The Company and the Employee each hereby irrevocably waive any right to a trial by jury in any action, suit or other\nlegal proceeding arising under or relating to any provision of this Agreement.\nh. Entire Agreement; Amendment. This Agreement supersedes all prior agreements, written or oral, between the Employee and the\nCompany relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part,\nexcept by an agreement in writing signed by the Employee and the Company. The Employee agrees that any change or changes in Employee’s\nduties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\n \ni. Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect\nthe scope or substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\n[Remainder of the Page Intentionally Left Blank]\nIN WITNESS WHEREQF, the parties hereto have executed this Agreement as of the day and year set forth above.\nWITNESS our hands and seals:\nRESTORBIO, INC. ACKNOWLEDGED AND AGREED:\nBy:\nName: Chen Schor Joan Mannick\nTitle: Chief Executive Officer	Exhibit A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this "Agreement") is made as of this day of 2017 by and between resTORbio, Inc., a\nDelaware corporation (hereinafter referred to collectively with its Affiliates as the "Company."), and Joan Mannick (the "Employee").\nThe Company desires to employ the Employee to provide services to the Company. In consideration of the employment or the continued\nemployment of the Employee by the Company, the Company and the Employee agree as follows:\n1. Condition of Employment.\nThe Employee acknowledges that Employee's employment and/or the continuance of that employment with the Company\nis\ncontingent upon Employee's agreement to become a party to and adhere to the provisions of this Agreement. The Employee further\nacknowledges that the nature of the Company's business is such that protection of its proprietary and confidential information and the proprietary\nand confidential information of its Affiliates is critical to the survival and success of the Company's business.\n2. Proprietary and Confidential Information.\na. The Employee agrees that all information and know-how, whether or not in writing, of a private, secret or confidential nature\nconcerning the Company's or any Affiliate's business or financial affairs (collectively, "Proprietary. Information") is and shall be the exclusive\nproperty of the Company (or any person or entity designated by the Company). By way of illustration, but not limitation, Proprietary Information\nmay include discoveries, ideas, inventions, products, product improvements, product enhancements, processes, methods, techniques, formulas,\ncompositions, compounds, negotiation strategies and positions, projects, developments, plans (including business and marketing plans), research\ndata, clinical data, financial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used\npursuant to a license agreement), computer software code, computer games, customer, prospect and supplier lists, and contacts at or knowledge\nof customers or prospective customers of the Company or any Affiliate, and the names of, contact information of, and any other data concerning,\nexisting and prospective Affiliates and existing and prospective investors of such Affiliates. The Employee shall not disclose any Proprietary\nInformation to any person or entity other than employees of the Company or use the same for any purposes (other than in the performance\nof\nEmployee's duties as an employee of the Company) without written approval by an officer of the Company, either during or after Employee's\nemployment with the Company. The Employee shall use the Employee's best efforts to prevent unauthorized publication or disclosure of any of\nthe Company's Proprietary Information.\nb. The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models, laboratory\nnotebooks, program listings, computer equipment or devices, computer programs or other written, photographic, or other tangible or intangible\nmaterial containing Proprietary Information, whether created by the Employee or others, which shall come into Employee's custody or\npossession, shall be and are the exclusive property of the Company to be used by the Employee only in the performance of Employee's duties for\nthe Company and shall not be copied or removed from the Company premises except in the pursuit of the business of the Company. All such\nmaterials or copies thereof and all tangible property of the Company in the custody or possession of the Employee shall be delivered to the\nCompany, upon the earlier of (i) a request by the Company or (ii) termination of Employee's employment for any reason. After such delivery, the\nEmployee shall not retain any such materials or copies thereof or any such tangible property.\nC. The Employee agrees that Employee's obligation not to disclose or to use information and materials of the types set forth in\nparagraphs 2(a) and 2(b) above, and Employee's obligation to return materials and tangible property, set forth in paragraph 2(b) above, also\nextends to such types of information, materials and tangible property of Affiliates, customers of the Company or suppliers to the Company or\nother third parties who may have disclosed or entrusted the same to the Company or to the Employee in the course of the Company's business.\n3. Scope of Disclosure Restrictions.\nNothing in this Agreement or elsewhere prohibits the Employee from reporting possible violations of state or federal law or regulation to\nany government agency, regulator, or legal authority, or making other disclosures that are protected under the whistleblower provisions of state\nor\nfederal law or regulation. The Employee is not required to notify the Company that the Employee has made any such reports or disclosures;\nprovided, however, that nothing herein authorizes the disclosure of information the Employee obtained through a communication that was\nsubject to the attorney-client privilege, unless disclosure of the information would otherwise be permitted by an applicable law or rule. Further,\npursuant to the Defend Trade Secrets Act: "An individual shall not be held criminally or civilly liable under any Federal or State trade secret\nlaw\nfor the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly,\nor to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other\ndocument filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer\nfor\nreporting\na\nsuspected\nviolation\nof\nlaw\nmay\ndisclose\nthe\ntrade\nsecret\nto\nthe\nattorney\nof\nthe\nindividual\nand\nuse\nthe\ntrade\nsecret\ninformation\nin\nthe\ncourt proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except\npursuant to court order."\n4. Non-Disparagement.\nThe Employee shall not, either during Employee's employment with the Company or thereafter, make or encourage others to make any\nstatement or release any information that is intended to, or reasonably could be foreseen to, disparage, defame or embarrass the Company or any\nof its Affiliates or their respective employees, officers, directors, partners, members or stockholders.\n5. Miscellaneous.\na. Equitable Remedies. The Employee acknowledges that the restrictions contained in this Agreement are necessary for the protection\nof the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that\nany breach or threatened breach of this Agreement is likely to cause the Company substantial and irrevocable damage which is difficult to\nmeasure. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to such other\nremedies which may be available, shall have the right to obtain an injunction from a court restraining such a breach or threatened breach without\nposting bond and the right to specific performance of the provisions of this Agreement and the Employee hereby waives the adequacy of a\nremedy at law as a defense to such relief.\nb. Disclosure of this Agreement. The Employee hereby authorizes the Company to notify others, including but not limited to the\nAffiliates and any of the Employee's future employers or prospective business associates, of the terms and existence of this Agreement and the\nEmployee's continuing obligations to the Company hereunder.\nC. Not Employment Contract. The Employee acknowledges that this Agreement does not constitute a contract of employment, does\nnot imply that the Company will continue Employee's employment for any period of time and does not change the at-will nature of Employee's\nemployment.\nd. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective\nsuccessors and assigns, including any corporation with which, or into which, the Company may be merged or which may succeed to the\nCompany's assets or business, provided, however, that the obligations of the Employee are personal and shall not be assigned by Employee. The\nEmployee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any Affiliate thereof to whose\nemploy the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such transfer.\ne. Severability.. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and\nenforceability of the remaining provisions shall in no way be affected or impaired thereby.\nf. Waivers. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nother right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to\nor waiver of any right on any other occasion.\ng. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of\nMassachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to\nresolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the Commonwealth of\nMassachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each consents to the\njurisdiction of such a court. The Company and the Employee each hereby irrevocably waive any right to a trial by jury in any action, suit or other\nlegal proceeding arising under or relating to any provision of this Agreement.\nh. Entire Agreement; Amendment. This Agreement supersedes all prior agreements, written or oral, between the Employee and the\nCompany relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part,\nexcept by an agreement in writing signed by the Employee and the Company. The Employee agrees that any change or changes in Employee's\nduties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\ni. Captions The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect\nthe scope or substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\n[Remainder of the Page Intentionally Left Blank]\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year set forth above.\nWITNESS our hands and seals:\nRESTORBIO, INC.\nACKNOWLEDGED AND AGREED:\nBy:\nName: Chen Schor\nJoan Mannick\nTitle: Chief Executive Officer	Exhibit A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “Agreement”) is made as of this day of\n, 2017 by and between resTORbio, Inc., a\nDelaware corporation (hereinafter referred to collectively with its Affiliates as the “Company”), and Joan Mannick (the “Employee”).\nThe Company desires to employ the Employee to provide services to the Company. In consideration of the employment or the continued\nemployment of the Employee by the Company, the Company and the Employee agree as follows:\n1. Condition of Employment.\nThe Employee acknowledges that Employee’s employment and/or the continuance of that employment with the Company is\ncontingent upon Employee’s agreement to become a party to and adhere to the provisions of this Agreement. The Employee further\nacknowledges that the nature of the Company’s business is such that protection of its proprietary and confidential information and the proprietary\nand confidential information of its Affiliates is critical to the survival and success of the Company’s business.\n2. Proprietary and Confidential Information.\na. The Employee agrees that all information and know-how, whether or not in writing, of a private, secret or confidential nature\nconcerning the Company’s or any Affiliate’s business or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive\nproperty of the Company (or any person or entity designated by the Company). By way of illustration, but not limitation, Proprietary Information\nmay include discoveries, ideas, inventions, products, product improvements, product enhancements, processes, methods, techniques, formulas,\ncompositions, compounds, negotiation strategies and positions, projects, developments, plans (including business and marketing plans), research\ndata, clinical data, financial data (including sales costs, profits, pricing methods), personnel data, computer programs (including software used\npursuant to a license agreement), computer software code, computer games, customer, prospect and supplier lists, and contacts at or knowledge\nof customers or prospective customers of the Company or any Affiliate, and the names of, contact information of, and any other data concerning,\nexisting and prospective Affiliates and existing and prospective investors of such Affiliates. The Employee shall not disclose any Proprietary\nInformation to any person or entity other than employees of the Company or use the same for any purposes (other than in the performance of\nEmployee’s duties as an employee of the Company) without written approval by an officer of the Company, either during or after Employee’s\nemployment with the Company. The Employee shall use the Employee’s best efforts to prevent unauthorized publication or disclosure of any of\nthe Company’s Proprietary Information.\nb. The Employee agrees that all files, documents, letters, memoranda, reports, records, data, sketches, drawings, models, laboratory\nnotebooks, program listings, computer equipment or devices, computer programs or other written, photographic, or other tangible or intangible\nmaterial containing Proprietary Information, whether created by the Employee or others, which shall come into Employee’s custody or\npossession, shall be and are the exclusive property of the Company to be used by the Employee only in the performance of Employee’s duties for\nthe Company and shall not be copied or removed from the Company premises except in the pursuit of the business of the Company. All such\nmaterials or copies thereof and all tangible property of the Company in the custody or possession of the Employee shall be delivered to the\nCompany, upon the earlier of (i) a request by the Company or (ii) termination of Employee’s employment for any reason. After such delivery, the\nEmployee shall not retain any such materials or copies thereof or any such tangible property.\nc. The Employee agrees that Employee’s obligation not to disclose or to use information and materials of the types set forth in\nparagraphs 2(a) and 2(b) above, and Employee’s obligation to return materials and tangible property, set forth in paragraph 2(b) above, also\nextends to such types of information, materials and tangible property of Affiliates, customers of the Company or suppliers to the Company or\nother third parties who may have disclosed or entrusted the same to the Company or to the Employee in the course of the Company’s business.\n3. Scope of Disclosure Restrictions.\nNothing in this Agreement or elsewhere prohibits the Employee from reporting possible violations of state or federal law or regulation to\nany government agency, regulator, or legal authority, or making other disclosures that are protected under the whistleblower provisions of state or\nfederal law or regulation. The Employee is not required to notify the Company that the Employee has made any such reports or disclosures;\nprovided, however, that nothing herein authorizes the disclosure of information the Employee obtained through a communication that was\nsubject to the attorney-client privilege, unless disclosure of the information would otherwise be permitted by an applicable law or rule. Further,\npursuant to the Defend Trade Secrets Act: “An individual shall not be held criminally or civilly liable under any Federal or State trade secret law\nfor the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly,\nor to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other\ndocument filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer\nfor reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the\ncourt proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except\npursuant to court order.”\n4. Non-Disparagement.\nThe Employee shall not, either during Employee’s employment with the Company or thereafter, make or encourage others to make any\nstatement or release any information that is intended to, or reasonably could be foreseen to, disparage, defame or embarrass the Company or any\nof its Affiliates or their respective employees, officers, directors, partners, members or stockholders.\n5. Miscellaneous.\na. Equitable Remedies. The Employee acknowledges that the restrictions contained in this Agreement are necessary for the protection\nof the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that\nany breach or threatened breach of this Agreement is likely to cause the Company substantial and irrevocable damage which is difficult to\nmeasure. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to such other\nremedies which may be available, shall have the right to obtain an injunction from a court restraining such a breach or threatened breach without\nposting bond and the right to specific performance of the provisions of this Agreement and the Employee hereby waives the adequacy of a\nremedy at law as a defense to such relief.\nb. Disclosure of this Agreement. The Employee hereby authorizes the Company to notify others, including but not limited to the\nAffiliates and any of the Employee’s future employers or prospective business associates, of the terms and existence of this Agreement and the\nEmployee’s continuing obligations to the Company hereunder.\nc. Not Employment Contract. The Employee acknowledges that this Agreement does not constitute a contract of employment, does\nnot imply that the Company will continue Employee’s employment for any period of time and does not change the at-will nature of Employee’s\nemployment.\nd. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of both parties and their respective\nsuccessors and assigns, including any corporation with which, or into which, the Company may be merged or which may succeed to the\nCompany’s assets or business, provided, however, that the obligations of the Employee are personal and shall not be assigned by Employee. The\nEmployee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any Affiliate thereof to whose\nemploy the Employee may be transferred without the necessity that this Agreement be re-signed at the time of such transfer.\ne. Severability. In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, the validity, legality and\nenforceability of the remaining provisions shall in no way be affected or impaired thereby.\nf. Waivers. No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nother right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to\nor waiver of any right on any other occasion.\ng. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of\nMassachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced to\nresolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of the Commonwealth of\nMassachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each consents to the\njurisdiction of such a court. The Company and the Employee each hereby irrevocably waive any right to a trial by jury in any action, suit or other\nlegal proceeding arising under or relating to any provision of this Agreement.\nh. Entire Agreement; Amendment. This Agreement supersedes all prior agreements, written or oral, between the Employee and the\nCompany relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part,\nexcept by an agreement in writing signed by the Employee and the Company. The Employee agrees that any change or changes in Employee’s\nduties, salary or compensation after the signing of this Agreement shall not affect the validity or scope of this Agreement.\ni. Captions. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect\nthe scope or substance of any section of this Agreement.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\n[Remainder of the Page Intentionally Left Blank]\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year set forth above.\nWITNESS our hands and seals:\nRESTORBIO, INC.\nACKNOWLEDGED AND AGREED:\nBy:\nName: Chen Schor\nJoan Mannick\nTitle: Chief Executive Officer
+6ecf1846ef305f44deb8f5c64da3b999.pdf	effective_date jurisdiction party term	EX-10.1 3 dex101.htm CONFIDENTIALITY AND NONSOLICITATION AGREEMENT\nExhibit 10.1\nCONFIDENTIALITY AND NONSOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY AND NONSOLICITATION AGREEMENT, (“Agreement”) made as of the 21st\nday of January, 2003, by and between\nBoston Safe Deposit &Trust Company, and on behalf of Mellon Bank, N.A, their parent companies, subsidiaries, affiliates, related entities,\nsuccessors and assigns (collectively “BSD&T”) and James P. Palermo (hereinafter “Palermo”) in consideration of employment by BSD&T and as a\ncondition precedent to the following additional compensation, the adequacy, sufficiency and receipt of which are hereby acknowledged, agree as\nfollows:\nARTICLE 1: CONSIDERATION\nIn exchange for Palermo’s execution of this Agreement within thirty (30) days of his receipt of the Agreement and as a condition precedent, BSD&T\nagrees to provide Palermo with a stock option award of 20,000 shares of Mellon Financial Corporation (“MFC”) Type I options (“Award”) upon\napproval of the Award by MFC Human Resources Committee at its January 21, 2003 meeting and his execution of the individualized stock option\nagreement. The Award is subject to the terms and conditions set forth in the MFC Long Term Profit Incentive Plan (1996), which is incorporated by\nreference.\nARTICLE 2: CONFIDENTIAL INFORMATION\n2.01 Definition of and Ownership of Confidential Information. Palermo recognizes, acknowledges and agrees that:\n(a) In the course of Palermo’s employment by BSD&T and as a Vice Chair of MFC Palermo has had and it will be necessary for Palermo to be\ngiven or have access to and become informed of confidential or proprietary information which BSD&T possesses or to which BSD&T has\nrights, which relates to BSD&T and which is not generally known to the public or in the trade and is a competitive asset of BSD&T, or\ninformation which constitutes a “trade secret” of BSD&T, as that term is defined by the Uniform Trade Secrets Act, as amended and approved\nby the National Conference of Commissioners on Uniform State Laws in 1985, including without limitation, (i) BSD&T’s planning data,\nrecords, observations and marketing strategies or techniques, computer programs, system documentation, manuals, formulae, processes,\noperation methods, machines, compositions; (ii) non-public terms of any new products, data bases, and investment strategies of BSD&T,\ntrading, arbitrage and/or hedging techniques or strategies,; (iii) non-public information relating to BSD&T personnel matters; (iv) BSD&T’s\nfinancial results and information about its business condition; (v) non-public terms of any investment, management or advisory agreement or\nother material contract of BSD&T; (vi) BSD&T’s proprietary software and related documents; (vii) BSD&T’s customer and client and\nprospecting lists, identifying information and contact persons at such customers and clients and prospects; and (viii) non-public material\ninformation concerning BSD&T’s clients or customers or their operations, condition (financial or otherwise) or plans whether such is original,\nduplicated, computerized, memorized, handwritten or in any other form (collectively referred to herein as the “Confidential Information”);\n(b) Confidential Information shall not include information generally known to the public other than by virtue of a breach of this Agreement by\nPalermo, information rightfully known to Palermo without limitation on disclosure prior to its receipt from BSD&T or a customer of\nBSD&T, information rightfully received from a third party without limitation on disclosure and information generally made available by\nBSD&T or a client or customer of BSD&T to third parties without restriction on disclosure; or information required to be disclosed by law,\nrule, regulation or order without an obligation of confidentiality on the part of the recipient, provided that prior to making any disclosure under\nthis clause Palermo shall, if permissible under the law, rule or regulation, provide the Company with notice and the opportunity to contest such\ndisclosure.\n(c) The Confidential Information has been developed or acquired by BSD&T with significant expenditures of time, effort and money and is\nunique and cannot be lawfully duplicated or easily acquired. The Confidential Information is the sole and exclusive property of BSD&T (and\nin some cases the property of a customer of BSD&T). BSD&T takes all reasonable measures to maintain its confidentiality and to guard its\nsecrecy. The Confidential Information is not generally known outside BSD&T and within BSD&T this information is confidential and used\nonly on a “need to know” basis. The Confidential Information is unique and cannot be lawfully duplicated or easily acquired. Palermo agrees\nthat the Confidential Information is deserving of trade secret status and protection, as that term is defined by the Uniform Trade Secrets Act, as\namended and approved by the National Conference of Commissioners on Uniform State Laws in 1985.\n2.01 Use of Confidential Information. Palermo agrees that the use, except for the sole purpose of conducting business on behalf of BSD&T or with\nprior written consent of BSD&T, misappropriation or disclosure of the Confidential Information would constitute a breach of trust and could cause\nirreparable injury to BSD&T.\n2.02 Nondisclosure of Confidential Information. Palermo agrees that it is essential to the protection of BSD&T’s goodwill and to the maintenance of\nBSD&T’s competitive position that the Confidential Information be kept secret and Palermo agrees not to disclose the Confidential Information to\nothers or use the Confidential Information to Palermo’s own advantage or the advantage of others either during employment or at any time thereafter.\n2.03 Additional Obligations. Palermo agrees that the obligations under this Article are in addition to, and not in limitation or preemption of, all other\nobligations of confidentiality which Palermo may have to BSD&T under its Code of Conduct or general or specific legal or equitable principles.\n2.04 Return of BSD&T Property. Palermo agrees that upon the termination of employment, for any reason or no reason, or at any other time BSD&T\nmay request, that Palermo will immediately return to BSD&T all Confidential Information and all of its property, including without limitation, all\ndocuments (including copies) and information, however maintained (including computer files, tapes, and recordings), concerning BSD&T or\nacquired by the Palermo in the course and scope of employment (excluding only those documents relating solely to Palermo’s own salary and\nbenefits).\nARTICLE 3: NONSOLICITATION OF ACCOUNTS AND EMPLOYEES\n3.01 Nonsolicitation of Clients or Customers. Palermo covenants and agrees that during employment and that upon the termination his employment,\nfor any reason or no reason, including but not limited to resignation of employment, that for a period of twelve (12) months following the\ntermination of his employment (“Restricted Period”), Palermo, whether directly or indirectly, in any capacity whatsoever (whether as proprietor,\npartner, investor, shareholder, director, officer, employer, consultant, independent contractor, co-venturer, financier, agent, representative or\notherwise) shall not:\n2\n(a) provide or assist with the provision of Relevant Financial Services to a Client or Customer of the BSD&T, except as an employee of\nBSD&T or the parents, affiliates or related entity of BSD&T; provided that this Article 3 does not prohibit Palermo from being employed by or\naffiliated or associated with any person or entity after termination his employment with BSD&T so long as he does not have any involvement\non behalf of any person or entity with respect to soliciting, managing, administering, supporting or retaining the Relevant Financial Services\nbusiness provided or proposed to be provided to a Customer or Client of BSD&T; and/or\n(b) solicit by mail, phone, personal meeting, or by any other means, either directly or indirectly, the business or patronage of any Customer or\nClient of BSD&T for any other person or entity, divert, entice, or otherwise take away from BSD&T the business or patronage of any\nCustomer or Client of BSD&T, or attempt to do so, or solicit or induce any Customer or Client of BSD&T to terminate or reduce its\nrelationship with BSD&T.\n3.02 Nonsolicitation of Employees. Palermo covenants and agrees that during employment with BSD&T and during the Restricted Period that\nPalermo shall not, directly or indirectly, hire, recruit solicit or induce, or attempt to hire, recruit solicit or induce, (or in any way assist another person\nor enterprise in recruiting, soliciting or inducing) any employee of BSD&T to leave BSD&T or any affiliate for any reason whatsoever.\n3.03 Reasonableness of Restricted Period. Palermo acknowledges and agrees that the Restricted Period is reasonable and valid in duration and scope\nand in all other respects. Palermo also represents that Palermo’s experience and capabilities are such that the enforcement of the provisions of this\nAgreement will not prevent Palermo from earning a livelihood, and acknowledge that it would cause BSD&T serious and irreparable injury and cost\nif Palermo were to use Palermo’s ability and knowledge in competition with BSD&T or to otherwise breach the obligations contained in this\nAgreement.\n3.04 Extension of Restricted Period. Palermo agrees that the nonsolicitation obligations contained in this Agreement shall be extended by the length\nof time during which Palermo shall have been in breach of any of the provisions.\n3.05 Definitions. Palermo understands that for the purposes of this Agreement:\n(a) “Relevant Financial Services” trust and custody and related services, such as securities lending, investment accounting, pension\nmanagement, trade processing, performance measurement and investment analysis services, investment-related foreign exchange, risk management\nand fiduciary monitoring for pension funds i.e. defined benefit/defined contribution markets, foundations, investment managers and insurance\ncompanies provided in sub-custodian relationships with banks and joint relationships provided by BSD&T from time to time or investment\nmanagement services which at any time during the twelve (12) months preceding the termination of Palermo’s employment are or were within the\nscope of his responsibilities.\n(b) Palermo understands that for the purposes of this Agreement, “Customer” or “Client” of BSD&T means any person or entity who (i) is\nreceiving Relevant Financial Services from BSD&T on the date of termination of his employment with BSD&T or its parent, subsidiary, affiliate or\nrelated entity (ii) received such services for compensation at any time during the 1 year period\n3\nimmediately preceding the date of termination of his employment, or (iii) Palermo solicited, directly or indirectly, in whole or in part, on behalf of\nBSD&T to provide financial services within one (1) year preceding the termination of his employment.\nARTICLE 4: DUTY OF LOYALTY\n4.01 Duty of Loyalty to BSD&T. Palermo agrees that at all times during employment by BSD&T, Palermo owes BSD&T a duty of loyalty and a\nduty to act in good faith. Palermo agrees that during employment Palermo will not individually, or in combination with any other Palermo or\ncompetitor of BSD&T, violate or breach the terms of this agreement, Code of Conduct or Mellon Securities Trading Policy.\n4.02 Cooperation. Palermo agrees that upon the termination of employment of Palermo, for any reason or no reason, including but not limited to\nresignation of employment, that Palermo will cooperate with BSD&T, upon reasonable notice and at reasonable times, in the prosecution and\ndefense of complaints, investigations, litigation, arbitration and mediation of any complaints, claims or actions now in existence or that may be\nthreatened or brought in the future relating to events or occurrences that transpired while employed by BSD&T.\n4.03 Prior Employer Restrictions. Palermo warrants that Palermo is not subject or party to any agreement, understanding or undertaking that would\nprevent or restrict Palermo from performing Palermo’s employment duties or working with or on behalf of any customer or client. In addition,\nPalermo warrants that his employment with BSD&T does not violate any agreement, understanding or undertaking. Still further, Palermo agrees that\nPalermo will not in the course of performing duties for BSD&T violate any confidentiality obligations Palermo may owe to others.\n4.04 Disclosure of Agreement. Palermo acknowledges and agrees to disclose the existence and terms of this Agreement so long as and to the extent\nthat such terms remain in effect to (a) any prospective employer, partner or co-venturer prior to entering into an employment, partnership, or other\nbusiness relationship with such person or entity.\nARTICLE 5; SPECIAL, UNIQUE AND EXTRAORDINARY SERVICES\nPalermo acknowledges and agrees that in performing the job duties of his position that Palermo provides BSD&T with a special, unique and\nextraordinary service.\nARTICLE 6; WORKS FOR HIRE.\n6.01 Property of BSD&T. Palermo understands and agrees that any and all rights or interests that Palermo holds or obtains in any designs,\ntrade secrets, client, supplier, and vendor lists, sales and marketing plans, inventions, discoveries, improvements, copyrights, patent rights,\ntrademarks, and developments of any kind whatsoever, which are authored, conceived, reduced to practice, or otherwise obtained by Palermo during\nemployment with BSD&T which relate to or arise out of such employment with BSD&T are expressly regarded as property of BSD&T or “works\nfor hire” (the “Inventions”).\n6.02 Disclosure;Assignment. Palermo agrees to promptly disclose to BSD&T any and all such Inventions and deliver to BSD&T, upon its\nrequest, a written description of such Invention and\n4\nany available documentary or other materials evidencing such Invention. Palermo hereby assigns to BSD&T the sole and exclusive right to such\nInventions, and that, upon request of BSD&T, will execute and deliver any and all documents or instruments and take any other action which\nBSD&T shall deem necessary to assign to and vest completely in it, to perfect trademark, trade secret, copyright and patent protection with respect\nto, or to otherwise protect BSD&T’ trade secrets and proprietary interest in, such Inventions.\n6.03 Survival. These obligations shall continue beyond the termination of Palermo’s employment, regardless of reason, with respect to such\nInventions conceived of, reduced to practice, or developed by Palermo during the term of employment with BSD&T.\n6.04 Fees. BSD&T agrees to pay any and all copyright, trademark and patent fees and expenses or other costs incurred by Palermo for any\nassistance rendered to BSD&T pursuant to this Article 6 and to promptly reimburse Palermo for all expenses incurred by Palermo in perfecting its\nproperty rights in the Inventions. Palermo’s obligations to assign Inventions shall not apply to any invention about which Palermo can prove that: (i)\nthe invention was developed entirely on Palermo own time and effort, (ii) no equipment, supplies, facilities, resources, trade secrets or confidential\ninformation of BSD&T was used in the development of the invention; (iii) the invention does not relate to the business of BSD&T or to BSD&T’\nactual or anticipated research and development; and (iv) the invention does not result from any work otherwise performed by Palermo for BSD&T.\nARTICLE 7: REMEDIES\n7.01 Injunctive Relief. Palermo agrees that any breach or threatened breach of any of the covenants contained in the Agreement would cause\nimmediate, material and irreparable harm to BSD&T and that money damages would not provide an adequate remedy for BSD&T to protect and\npreserve the status quo. Therefore, PALERMO CONSENTS TO THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER or A\nPRELIMINARY or PERMANENT INJUNCTION ordering that:\na) that Palermo immediately return to BSD&T all property and Confidential Information, whether original, duplicated, computerized,\nhandwritten, or in any other form whatsoever, and that Palermo be enjoined and restrained from using or disclosing any information\ncontained in such records; and\nb) that, for a period of twelve (12) months, Palermo be enjoined and restrained from soliciting any client or customer whom Palermo served\nor whose name became known to Palermo while employed by BSD&T, in any office and in any capacity; and\nc) that for a period of twelve (12) months, Palermo be enjoined and restrained from hiring, soliciting, or inducing any employee of BSD&T\nto leave BSD&T.\n7.02 Palermo agrees that BSD&T shall have all of the rights and remedies available under law, or in equity, including, but not limited to, injunctive\nrelief, to a party enforcing any such covenant each of such rights and remedies to be independent of the other and severally enforceable including,\nbut not limited to, the right to have such covenants specifically enforced, and the right to require any violating party to account for and pay over to\nBSD&T all benefits derived or received by such violating party, or any of its subsidiaries or affiliates, as a result of any such breach of covenant.\n5\n7.03 Jurisdiction. For purposes of Article 7.01, Palermo agrees to submit to, and confer exclusive jurisdiction on, the United States District Court or\nthe State Court which has original jurisdiction for judicial district or county in which Palermo last worked for BSD&T. In addition, this Agreement\nshall be construed, governed by, and enforced in accordance with the laws of said jurisdiction.\nARTICLE 8: EMPLOYMENT AT WILL\nNOTHING HEREIN IS A PROMISE OF EMPLOYMENT FOR A FIXED TERM. PALERMO AGREES THAT HE REMAINS AT ALL TIMES\nAN EMPLOYEE AT WILL. BSD&T MAY TERMINATE PALERMO’S EMPLOYMENT FOR ANY REASON OR FOR NO REASON, JUST AS\nPALERMO MAY RESIGN AT ANY TIME.\nARTICLE 9: ASSIGNMENT\nPalermo expressly acknowledges and agrees that BSD&T may assign this Agreement, and its rights and obligations hereunder, to any other\nindividual, entity or organization that is a direct or indirect subsidiary of BSD&T or which acquires (whether by purchase, merger, consolidation or\notherwise) all or substantially all of the business of BSD&T, in either case without Palermo’s consent and without the necessity that this Agreement\nbe re-signed at the time of such transfer, and the term “BSD&T” shall be deemed to include such entity or organization to which this Agreement is\nassigned. Any such transfer shall not in and of itself constitute a termination of Palermo’s employment by BSD&T.\nARTICLE 10: MISCELLANEOUS\n10.01 Reasonableness; Severability. Palermo agrees that the covenants set forth herein are reasonable and valid in duration and scope and in all other\nrespects. If any court or tribunal determines that any of such covenants, or any part thereof, are invalid or unenforceable, the remaining covenants\nshall not thereby be affected and they shall be given full effect, without regard to the invalid portions. If any court or tribunal determined that all, or\nany part of the covenants contained herein are unenforceable, because of the duration or scope of such provision, or for any other reason, such court\nor tribunal is directed to reduce the duration or scope of such provision, as the case may be, so that, in its reduced form, such provision shall then be\nenforceable. If any provision or provisions hereof shall be deemed invalid or unenforceable either in whole or in part, this Agreement shall be\ndeemed amended to delete or modify, as necessary, the offending provision or provisions and to alter the bounds thereof in order to render it valid\nand enforceable.\n10.02 Additional Obligations. Palermo agrees that the obligations in this Agreement are in addition to and not in limitation or preemption of, all\nother obligations or prior agreements he has with BSD&T may have to BSD&T or under its Code of Conduct or general or specific legal or equitable\nprinciples.\n10.03 Time to Consider Agreement. PALERMO ACKNOWLEDGES AND AGREES THAT HE HAS READ AND REVIEWED THIS\nAGREEMENT IN ITS ENTIRETY AND HAS BEEN GIVEN AN OPPORTUNITY TO CONSIDER THE AGREEMENT AND TO ASK BSD&T\nQUESTIONS ABOUT IT. PALERMO ALSO AGREES THAT HE HAS BEEN GIVEN AN OPPORTUNITY TO CONSULT WITH AN\nATTORNEY OF HIS CHOICE PRIOR TO EXECUTING THE AGREEMENT. BY EXECUTING THE AGREEMENT, PALERMO EXPRESSLY\nACKNOWLEDGES THAT HE FULLY UNDERSTANDS THE TERMS OF THIS AGREEMENT AND KNOWINGLY AND FREELY AGREES\nTO ABIDE BY THEM.\n6\n10.04 Governing Law. This Agreement shall be deemed to be made and entered into in the Commonwealth of Massachusetts, and shall in all\nrespects be interpreted, enforced and governed under the laws of said State.\n10.05 Survival. Palermo acknowledges and agrees that the covenants and the restrictions contained in this Agreement are intended to protect\nBSD&T’s interest in its Confidential Information and its commercial relationships and goodwill with its customers, prospective customers, vendors,\nsuppliers, consultants and employees. Palermo acknowledges and agree that the covenants and the restrictions contained in this Agreement shall\ncontinue in accordance with the express terms hereof regardless of any changes in title, position, duties, salary, compensation, benefits or other terms\nand conditions of employment, and shall survive the termination of Palermo’s employment.\n10.06 Headings. The underlined headings contained in this Agreement are for convenience of reference only and shall not affect the interpretation or\nconstruction of any provision hereof.\n2/7/03\n/s/ James P. Palermo\nDate\nJames P. Palermo\nCorrected 3/17/03\nBoston Safe Deposit and Trust Company\n2/19/03\nBy: /s/ Linda B. Kane\nDate\nLinda B. Kane\nCorrected 3/17/03\nSeniorVicePresident, Human Resources\n7	EX-10.1 3 dex101.htm CONFIDENTIALITY AND NONSOLICITATION AGREEMENT\nExhibit 10.1\nCONFIDENTIALITY AND NONSOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY AND NONSOLICITATION AGREEMENT, (“Agreement”) made as of the 215 day of January, 2003, by and between\nBoston Safe Deposit &Trust Company, and on behalf of Mellon Bank, N.A, their parent companies, subsidiaries, affiliates, related entities,\nsuccessors and assigns (collectively “BSD&T”) and James P. Palermo (hereinafter “Palermo”) in consideration of employment by BSD&T and as a\ncondition precedent to the following additional compensation, the adequacy, sufficiency and receipt of which are hereby acknowledged, agree as\nfollows:\nARTICLE 1: CONSIDERATION\nIn exchange for Palermo’s execution of this Agreement within thirty (30) days of his receipt of the Agreement and as a condition precedent, BSD&T\nagrees to provide Palermo with a stock option award of 20,000 shares of Mellon Financial Corporation (“MFC”) Type I options (“Award”) upon\napproval of the Award by MFC Human Resources Committee at its January 21, 2003 meeting and his execution of the individualized stock option\nagreement. The Award is subject to the terms and conditions set forth in the MFC Long Term Profit Incentive Plan (1996), which is incorporated by\nreference.\nARTICLE 2: CONFIDENTIAL INFORMATION\n2.01 Definition of and Ownership of Confidential Information. Palermo recognizes, acknowledges and agrees that:\n(a) In the course of Palermo’s employment by BSD&T and as a Vice Chair of MFC Palermo has had and it will be necessary for Palermo to be\ngiven or have access to and become informed of confidential or proprietary information which BSD&T possesses or to which BSD&T has\nrights, which relates to BSD&T and which is not generally known to the public or in the trade and is a competitive asset of BSD&T, or\ninformation which constitutes a “trade secret” of BSD&T, as that term is defined by the Uniform Trade Secrets Act, as amended and approved\nby the National Conference of Commissioners on Uniform State Laws in 1985, including without limitation, (i) BSD&T’s planning data,\nrecords, observations and marketing strategies or techniques, computer programs, system documentation, manuals, formulae, processes,\noperation methods, machines, compositions; (ii) non-public terms of any new products, data bases, and investment strategies of BSD&T,\ntrading, arbitrage and/or hedging techniques or strategies,; (iii) non-public information relating to BSD&T personnel matters; (iv) BSD&T’s\nfinancial results and information about its business condition; (v) non-public terms of any investment, management or advisory agreement or\nother material contract of BSD&T; (vi) BSD&T’s proprietary software and related documents; (vii) BSD&T’s customer and client and\nprospecting lists, identifying information and contact persons at such customers and clients and prospects; and (viii) non-public material\ninformation concerning BSD&T’s clients or customers or their operations, condition (financial or otherwise) or plans whether such is original,\nduplicated, computerized, memorized, handwritten or in any other form (collectively referred to herein as the “Confidential Information”);\n(b) Confidential Information shall not include information generally known to the public other than by virtue of a breach of this Agreement by\nPalermo, information rightfully known to Palermo without limitation on disclosure prior to its receipt from BSD&T or a customer of\nBSD&T, information rightfully received from a third party without limitation on disclosure and information generally made available by\nBSD&T or a client or customer of BSD&T to third parties without restriction on disclosure; or information required to be disclosed by law,\nrule, regulation or order without an obligation of confidentiality on the part of the recipient, provided that prior to making any disclosure under\nthis clause Palermo shall, if permissible under the law, rule or regulation, provide the Company with notice and the opportunity to contest such\ndisclosure.\n \n(c) The Confidential Information has been developed or acquired by BSD&T with significant expenditures of time, effort and money and is\nunique and cannot be lawfully duplicated or easily acquired. The Confidential Information is the sole and exclusive property of BSD&T (and\nin some cases the property of a customer of BSD&T). BSD&T takes all reasonable measures to maintain its confidentiality and to guard its\nsecrecy. The Confidential Information is not generally known outside BSD&T and within BSD&T this information is confidential and used\nonly on a “need to know” basis. The Confidential Information is unique and cannot be lawfully duplicated or easily acquired. Palermo agrees\nthat the Confidential Information is deserving of trade secret status and protection, as that term is defined by the Uniform Trade Secrets Act, as\namended and approved by the National Conference of Commissioners on Uniform State Laws in 1985.\n2.01 Use of Confidential Information. Palermo agrees that the use, except for the sole purpose of conducting business on behalf of BSD&T or with\nprior written consent of BSD&T, misappropriation or disclosure of the Confidential Information would constitute a breach of trust and could cause\nirreparable injury to BSD&T.\n2.02 Nondisclosure of Confidential Information. Palermo agrees that it is essential to the protection of BSD&T’s goodwill and to the maintenance of\nBSD&T’s competitive position that the Confidential Information be kept secret and Palermo agrees not to disclose the Confidential Information to\nothers or use the Confidential Information to Palermo’s own advantage or the advantage of others either during employment or at any time thereafter.\n2.03 Additional Obligations. Palermo agrees that the obligations under this Article are in addition to, and not in limitation or preemption of, all other\nobligations of confidentiality which Palermo may have to BSD&T under its Code of Conduct or general or specific legal or equitable principles.\n2.04 Return of BSD&T Property. Palermo agrees that upon the termination of employment, for any reason or no reason, or at any other time BSD&T\nmay request, that Palermo will immediately return to BSD&T all Confidential Information and all of its property, including without limitation, all\ndocuments (including copies) and information, however maintained (including computer files, tapes, and recordings), concerning BSD&T or\nacquired by the Palermo in the course and scope of employment (excluding only those documents relating solely to Palermo’s own salary and\nbenefits).\nARTICLE 3: NONSOLICITATION OF ACCOUNTS AND EMPLOYEES\n3.01 Nonsolicitation of Clients or Customers. Palermo covenants and agrees that during employment and that upon the termination his employment,\nfor any reason or no reason, including but not limited to resignation of employment, that for a period of twelve (12) months following the\ntermination of his employment (“Restricted Period”), Palermo, whether directly or indirectly, in any capacity whatsoever (whether as proprietor,\npartner, investor, shareholder, director, officer, employer, consultant, independent contractor, co-venturer, financier, agent, representative or\notherwise) shall not:\n(a) provide or assist with the provision of Relevant Financial Services to a Client or Customer of the BSD&T, except as an employee of\nBSD&T or the parents, affiliates or related entity of BSD&T; provided that this Article 3 does not prohibit Palermo from being employed by or\naffiliated or associated with any person or entity after termination his employment with BSD&T so long as he does not have any involvement\non behalf of any person or entity with respect to soliciting, managing, administering, supporting or retaining the Relevant Financial Services\nbusiness provided or proposed to be provided to a Customer or Client of BSD&T; and/or\n(b) solicit by mail, phone, personal meeting, or by any other means, either directly or indirectly, the business or patronage of any Customer or\nClient of BSD&T for any other person or entity, divert, entice, or otherwise take away from BSD&T the business or patronage of any\nCustomer or Client of BSD&T, or attempt to do so, or solicit or induce any Customer or Client of BSD&T to terminate or reduce its\nrelationship with BSD&T.\n3.02 Nonsolicitation of Employees. Palermo covenants and agrees that during employment with BSD&T and during the Restricted Period that\nPalermo shall not, directly or indirectly, hire, recruit solicit or induce, or attempt to hire, recruit solicit or induce, (or in any way assist another person\nor enterprise in recruiting, soliciting or inducing) any employee of BSD&T to leave BSD&T or any affiliate for any reason whatsoever.\n3.03 Reasonableness of Restricted Period. Palermo acknowledges and agrees that the Restricted Period is reasonable and valid in duration and scope\nand in all other respects. Palermo also represents that Palermo’s experience and capabilities are such that the enforcement of the provisions of this\nAgreement will not prevent Palermo from earning a livelihood, and acknowledge that it would cause BSD&T serious and irreparable injury and cost\nif Palermo were to use Palermo’s ability and knowledge in competition with BSD&T or to otherwise breach the obligations contained in this\nAgreement.\n3.04 Extension of Restricted Period. Palermo agrees that the nonsolicitation obligations contained in this Agreement shall be extended by the length\nof time during which Palermo shall have been in breach of any of the provisions.\n3.05 Definitions. Palermo understands that for the purposes of this Agreement:\n(a) “Relevant Financial Services” trust and custody and related services, such as securities lending, investment accounting, pension\nmanagement, trade processing, performance measurement and investment analysis services, investment-related foreign exchange, risk management\nand fiduciary monitoring for pension funds i.e. defined benefit/defined contribution markets, foundations, investment managers and insurance\ncompanies provided in sub-custodian relationships with banks and joint relationships provided by BSD&T from time to time or investment\nmanagement services which at any time during the twelve (12) months preceding the termination of Palermo’s employment are or were within the\nscope of his responsibilities.\n(b) Palermo understands that for the purposes of this Agreement, “Customer” or “Client” of BSD&T means any person or entity who (i) is\nreceiving Relevant Financial Services from BSD&T on the date of termination of his employment with BSD&T or its parent, subsidiary, affiliate or\nrelated entity (ii) received such services for compensation at any time during the 1 year period\n3\nimmediately preceding the date of termination of his employment, or (iii) Palermo solicited, directly or indirectly, in whole or in part, on behalf of\nBSD&T to provide financial services within one (1) year preceding the termination of his employment.\nARTICLE 4: DUTY OF LOYALTY\n4.01 Duty of Loyalty to BSD&T. Palermo agrees that at all times during employment by BSD&T, Palermo owes BSD&T a duty of loyalty and a\nduty to act in good faith. Palermo agrees that during employment Palermo will not individually, or in combination with any other Palermo or\ncompetitor of BSD&T, violate or breach the terms of this agreement, Code of Conduct or Mellon Securities Trading Policy.\n4.02 Cooperation. Palermo agrees that upon the termination of employment of Palermo, for any reason or no reason, including but not limited to\nresignation of employment, that Palermo will cooperate with BSD&T, upon reasonable notice and at reasonable times, in the prosecution and\ndefense of complaints, investigations, litigation, arbitration and mediation of any complaints, claims or actions now in existence or that may be\nthreatened or brought in the future relating to events or occurrences that transpired while employed by BSD&T.\n \n4.03 Prior Employer Restrictions. Palermo warrants that Palermo is not subject or party to any agreement, understanding or undertaking that would\nprevent or restrict Palermo from performing Palermo’s employment duties or working with or on behalf of any customer or client. In addition,\nPalermo warrants that his employment with BSD&T does not violate any agreement, understanding or undertaking. Still further, Palermo agrees that\nPalermo will not in the course of performing duties for BSD&T violate any confidentiality obligations Palermo may owe to others.\n4.04 Disclosure of Agreement. Palermo acknowledges and agrees to disclose the existence and terms of this Agreement so long as and to the extent\nthat such terms remain in effect to (a) any prospective employer, partner or co-venturer prior to entering into an employment, partnership, or other\nbusiness relationship with such person or entity.\nARTICLE 5; SPECIAL, UNIQUE AND EXTRAORDINARY SERVICES\nPalermo acknowledges and agrees that in performing the job duties of his position that Palermo provides BSD&T with a special, unique and\nextraordinary service.\nARTICLE 6; WORKS FOR HIRE.\n6.01 Property of BSD&T. Palermo understands and agrees that any and all rights or interests that Palermo holds or obtains in any designs,\ntrade secrets, client, supplier, and vendor lists, sales and marketing plans, inventions, discoveries, improvements, copyrights, patent rights,\ntrademarks, and developments of any kind whatsoever, which are authored, conceived, reduced to practice, or otherwise obtained by Palermo during\nemployment with BSD&T which relate to or arise out of such employment with BSD&T are expressly regarded as property of BSD&T or “works\nfor hire” (the “Inventions™).\n6.02 Disclosure;Assignment. Palermo agrees to promptly disclose to BSD&T any and all such Inventions and deliver to BSD&T, upon its\nrequest, a written description of such Invention and\nany available documentary or other materials evidencing such Invention. Palermo hereby assigns to BSD&T the sole and exclusive right to such\nInventions, and that, upon request of BSD&T, will execute and deliver any and all documents or instruments and take any other action which\nBSD&T shall deem necessary to assign to and vest completely in it, to perfect trademark, trade secret, copyright and patent protection with respect\nto, or to otherwise protect BSD&T” trade secrets and proprietary interest in, such Inventions.\n6.03 Survival. These obligations shall continue beyond the termination of Palermo’s employment, regardless of reason, with respect to such\nInventions conceived of, reduced to practice, or developed by Palermo during the term of employment with BSD&T.\n6.04 Fees. BSD&T agrees to pay any and all copyright, trademark and patent fees and expenses or other costs incurred by Palermo for any\nassistance rendered to BSD&T pursuant to this Article 6 and to promptly reimburse Palermo for all expenses incurred by Palermo in perfecting its\nproperty rights in the Inventions. Palermo’s obligations to assign Inventions shall not apply to any invention about which Palermo can prove that: (i)\nthe invention was developed entirely on Palermo own time and effort, (ii) no equipment, supplies, facilities, resources, trade secrets or confidential\ninformation of BSD&T was used in the development of the invention; (iii) the invention does not relate to the business of BSD&T or to BSD&T’\nactual or anticipated research and development; and (iv) the invention does not result from any work otherwise performed by Palermo for BSD&T.\nARTICLE 7: REMEDIES\n7.01 Injunctive Relief. Palermo agrees that any breach or threatened breach of any of the covenants contained in the Agreement would cause\nimmediate, material and irreparable harm to BSD&T and that money damages would not provide an adequate remedy for BSD&T to protect and\npreserve the status quo. Therefore, PALERMO CONSENTS TO THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER or A\nPRELIMINARY or PERMANENT INJUNCTION ordering that:\na)  that Palermo immediately return to BSD&T all property and Confidential Information, whether original, duplicated, computerized,\nhandwritten, or in any other form whatsoever, and that Palermo be enjoined and restrained from using or disclosing any information\ncontained in such records; and\nb) that, for a period of twelve (12) months, Palermo be enjoined and restrained from soliciting any client or customer whom Palermo served\nor whose name became known to Palermo while employed by BSD&T, in any office and in any capacity; and\nc) that for a period of twelve (12) months, Palermo be enjoined and restrained from hiring, soliciting, or inducing any employee of BSD&T\nto leave BSD&T.\n7.02 Palermo agrees that BSD&T shall have all of the rights and remedies available under law, or in equity, including, but not limited to, injunctive\nrelief, to a party enforcing any such covenant each of such rights and remedies to be independent of the other and severally enforceable including,\nbut not limited to, the right to have such covenants specifically enforced, and the right to require any violating party to account for and pay over to\nBSD&T all benefits derived or received by such violating party, or any of its subsidiaries or affiliates, as a result of any such breach of covenant.\n7.03 Jurisdiction. For purposes of Article 7.01, Palermo agrees to submit to, and confer exclusive jurisdiction on, the United States District Court or\nthe State Court which has original jurisdiction for judicial district or county in which Palermo last worked for BSD&T. In addition, this Agreement\nshall be construed, governed by, and enforced in accordance with the laws of said jurisdiction.\nARTICLE 8: EMPLOYMENT AT WILL\nNOTHING HEREIN IS A PROMISE OF EMPLOYMENT FOR A FIXED TERM. PALERMO AGREES THAT HE REMAINS AT ALL TIMES\nAN EMPLOYEE AT WILL. BSD&T MAY TERMINATE PALERMO’S EMPLOYMENT FOR ANY REASON OR FOR NO REASON, JUST AS\nPALERMO MAY RESIGN AT ANY TIME.\nARTICLE 9: ASSIGNMENT\nPalermo expressly acknowledges and agrees that BSD&T may assign this Agreement, and its rights and obligations hereunder, to any other\nindividual, entity or organization that is a direct or indirect subsidiary of BSD&T or which acquires (whether by purchase, merger, consolidation or\notherwise) all or substantially all of the business of BSD&T, in either case without Palermo’s consent and without the necessity that this Agreement\nbe re-signed at the time of such transfer, and the term “BSD&T” shall be deemed to include such entity or organization to which this Agreement is\nassigned. Any such transfer shall not in and of itself constitute a termination of Palermo’s employment by BSD&T.\nARTICLE 10: MISCELLANEOUS\n10.01 Reasonableness; Severability. Palermo agrees that the covenants set forth herein are reasonable and valid in duration and scope and in all other\nrespects. If any court or tribunal determines that any of such covenants, or any part thereof, are invalid or unenforceable, the remaining covenants\nshall not thereby be affected and they shall be given full effect, without regard to the invalid portions. If any court or tribunal determined that all, or\nany part of the covenants contained herein are unenforceable, because of the duration or scope of such provision, or for any other reason, such court\nor tribunal is directed to reduce the duration or scope of such provision, as the case may be, so that, in its reduced form, such provision shall then be\nenforceable. If any provision or provisions hereof shall be deemed invalid or unenforceable either in whole or in part, this Agreement shall be\ndeemed amended to delete or modify, as necessary, the offending provision or provisions and to alter the bounds thereof in order to render it valid\nand enforceable.\n10.02 Additional Obligations. Palermo agrees that the obligations in this Agreement are in addition to and not in limitation or preemption of, all\nother obligations or prior agreements he has with BSD&T may have to BSD&T or under its Code of Conduct or general or specific legal or equitable\nprinciples.\n10.03 Time to Consider Agreement. PALERMO ACKNOWLEDGES AND AGREES THAT HE HAS READ AND REVIEWED THIS\nAGREEMENT IN ITS ENTIRETY AND HAS BEEN GIVEN AN OPPORTUNITY TO CONSIDER THE AGREEMENT AND TO ASK BSD&T\nQUESTIONS ABOUT IT. PALERMO ALSO AGREES THAT HE HAS BEEN GIVEN AN OPPORTUNITY TO CONSULT WITH AN\nATTORNEY OF HIS CHOICE PRIOR TO EXECUTING THE AGREEMENT. BY EXECUTING THE AGREEMENT, PALERMO EXPRESSLY\nACKNOWLEDGES THAT HE FULLY UNDERSTANDS THE TERMS OF THIS AGREEMENT AND KNOWINGLY AND FREELY AGREES\nTO ABIDE BY THEM.\n \n10.04 Governing Law. This Agreement shall be deemed to be made and entered into in the Commonwealth of Massachusetts, and shall in all\nrespects be interpreted, enforced and governed under the laws of said State.\n10.05 Survival. Palermo acknowledges and agrees that the covenants and the restrictions contained in this Agreement are intended to protect\nBSD&T’s interest in its Confidential Information and its commercial relationships and goodwill with its customers, prospective customers, vendors,\nsuppliers, consultants and employees. Palermo acknowledges and agree that the covenants and the restrictions contained in this Agreement shall\ncontinue in accordance with the express terms hereof regardless of any changes in title, position, duties, salary, compensation, benefits or other terms\nand conditions of employment, and shall survive the termination of Palermo’s employment.\n10.06 Headings. The underlined headings contained in this Agreement are for convenience of reference only and shall not affect the interpretation or\nconstruction of any provision hereof.\n/s/  James P. Palermo\n2/7/03\nDate James P. Palermo\nCorrected 3/17/03\nBoston Safe Deposit and Trust Company\nBy: /s/ Linda B. Kane\n2/19/03\nDate Linda B. Kane\nCorrected 3/17/03 SeniorVicePresident, Human Resources	EX-10.1 3 dex101.htm CONFIDENTIALITY AND NONSOLICITATION AGREEMENT\nExhibit 10.1\nCONFIDENTIALITY AND NONSOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY AND NONSOLICITATION AGREEMENT, ("Agreement") made as of the 21st day of January, 2003, by and between\nBoston Safe Deposit &Trust Company, and on behalf of Mellon Bank, N.A, their parent companies, subsidiaries, affiliates, related entities,\nsuccessors and assigns (collectively "BSD&T") and James P. Palermo (hereinafter "Palermo") in consideration of employment by BSD&T and as\na\ncondition precedent to the following additional compensation, the adequacy, sufficiency and receipt of which are hereby acknowledged, agree\nas\nfollows:\nARTICLE 1: CONSIDERATION\nIn exchange for Palermo's execution of this Agreement within thirty (30) days of his receipt of the Agreement and as a condition precedent, BSD&T\nagrees to provide Palermo with a stock option award of 20,000 shares of Mellon Financial Corporation ("MFC") Type I options ""Award") upon\napproval of the Award by MFC Human Resources Committee at its January 21, 2003 meeting and his execution of the individualized stock option\nagreement. The Award is subject to the terms and conditions set forth in the MFC Long Term Profit Incentive Plan (1996), which is incorporated\nby\nreference.\nARTICLE 2: CONFIDENTIAL INFORMATION\n2.01 Definition of and Ownership of Confidential Information. Palermo recognizes, acknowledges and agrees that:\n(a) In the course of Palermo's employment by BSD&T and as a Vice Chair of MFC Palermo has had and it will be necessary for Palermo to be\ngiven or have access to and become informed of confidential or proprietary information which BSD&T possesses or to which BSD&T has\nrights, which relates to BSD&T and which is not generally known to the public or in the trade and is a competitive asset of BSD&T, or\ninformation which constitutes a "trade secret" of BSD&T, as that term is defined by the Uniform Trade Secrets Act, as amended and approved\nby\nthe National Conference of Commissioners on Uniform State Laws in 1985, including without limitation, (i) BSD&T's planning data,\nrecords, observations and marketing strategies or techniques, computer programs, system documentation, manuals, formulae, processes,\noperation methods, machines, compositions; (ii) non-public terms of any new products, data bases, and investment strategies of BSD&T,\ntrading, arbitrage and/or hedging techniques or strategies,; (iii) non-public information relating to BSD&T personnel matters; (iv) BSD&T's\nfinancial results and information about its business condition; (v) non-public terms of any investment, management or advisory agreement or\nother material contract of BSD&T; (vi) BSD&T's proprietary software and related documents; (vii) BSD&T's customer and client and\nprospecting lists, identifying information and contact persons at such customers and clients and prospects; and (viii) non-public material\ninformation concerning BSD&T's clients or customers or their operations, condition (financial or otherwise) or plans whether such is original,\nduplicated, computerized, memorized, handwritten or in any other form (collectively referred to herein as the "Confidential Information");\n(b) Confidential Information shall not include information generally known to the public other than by virtue of a breach of this Agreement by\nPalermo, information rightfully known to Palermo without limitation on disclosure prior to its receipt from BSD&T or a customer of\nBSD&T, information rightfully received from a third party without limitation on disclosure and information generally made available by\nBSD&T or a client or customer of BSD&T to third parties without restriction on disclosure; or information required to be disclosed by law,\nrule, regulation or order without an obligation of confidentiality on the part of the recipient, provided that prior to making any disclosure under\nthis clause Palermo shall, if permissible under the law, rule or regulation, provide the Company with notice and the opportunity to contest such\ndisclosure.\n(c) The Confidential Information has been developed or acquired by BSD&T with significant expenditures of time, effort and money and is\nunique and cannot be lawfully duplicated or easily acquired. The Confidential Information is the sole and exclusive property of BSD&T (and\nin some cases the property of a customer of BSD&T). BSD&T takes all reasonable measures to maintain its confidentiality and to guard its\nsecrecy. The Confidential Information is not generally known outside BSD&T and within BSD&T this information is confidential and used\nonly on a "need to know" basis. The Confidentia Information is unique and cannot be lawfully duplicated or easily acquired. Palermo agrees\nthat the Confidential Information is deserving of trade secret status and protection, as that term is defined by the Uniform Trade Secrets Act, as\namended and approved by the National Conference of Commissioners on Uniform State Laws in 1985.\n2.01 Use of Confidential Information. Palermo agrees that the use, except for the sole purpose of conducting business on behalf of BSD&T or with\nprior written consent of BSD&T, misappropriation or disclosure of the Confidential Information would constitute a breach of trust and could cause\nirreparable injury to BSD&T.\n2.02 Nondisclosure of Confidential Information. Palermo agrees that it is essential to the protection of BSD&T's goodwill and to the maintenance of\nBSD&T's competitive position that the Confidential Information be kept secret and Palermo agrees not to disclose the Confidential Information to\nothers or use the Confidential Information to Palermo's own advantage or the advantage of others either during employment or at any time thereafter.\n2.03 Additional Obligations. Palermo agrees that the obligations under this Article are in addition to, and not in limitation or preemption of, all other\nobligations of confidentiality which Palermo may have to BSD&T under its Code of Conduct or general or specific legal or equitable principles.\n2.04 Return of BSD&T Property.. Palermo agrees that upon the termination of employment, for any reason or no reason, or at any other time BSD&T\nmay request, that Palermo will immediately return to BSD&T all Confidential Information and all of its property, including without limitation, all\ndocuments (including copies) and information, however maintained (including computer files, tapes, and recordings), concerning BSD&T or\nacquired by the Palermo in the course and scope of employment (excluding only those documents relating solely to Palermo's own salary and\nbenefits).\nARTICLE 3: NONSOLICITATION OF ACCOUNTS AND EMPLOYEES\n3.01 Nonsolicitation of Clients or Customers. Palermo covenants and agrees that during employment and that upon the termination his employment,\nfor any reason or no reason, including but not limited to resignation of employment, that for a period of twelve (12) months following the\ntermination of his employment ("Restricted Period"), Palermo, whether directly or indirectly, in any capacity whatsoever (whether as proprietor,\npartner, investor, shareholder, director, officer, employer, consultant, independent contractor, co-venturer, financier, agent, representative or\notherwise) shall not:\n2\n(a) provide or assist with the provision of Relevant Financial Services to a Client or Customer of the BSD&T, except as an employee of\nBSD&T or the parents, affiliates or related entity of BSD&T; provided that this Article 3 does not prohibit Palermo from being employed by or\naffiliated or associated with any person or entity after termination his employment with BSD&T so long as he does not have any involvement\non behalf of any person or entity with respect to soliciting, managing, administering, supporting or retaining the Relevant Financial Services\nbusiness provided or proposed to be provided to a Customer or Client of BSD&T; and/or\n(b) solicit by mail, phone, personal meeting, or by any other means, either directly or indirectly, the business or patronage of any Customer or\nClient of BSD&T for any other person or entity, divert, entice, or otherwise take away from BSD&T the business or patronage of any\nCustomer or Client of BSD&T, or attempt to do so, or solicit or induce any Customer or Client of BSD&T to terminate or reduce its\nrelationship with BSD&T.\n3.02 Nonsolicitation of Employees. Palermo covenants and agrees that during employment with BSD&T and during the Restricted Period that\nPalermo shall not, directly or indirectly, hire, recruit solicit or induce, or attempt to hire, recruit solicit or induce, (or in any way assist another person\nor enterprise in recruiting, soliciting or inducing) any employee of BSD&T to leave BSD&T or any affiliate for any reason whatsoever.\n3.03 Reasonableness of Restricted Period. Palermo acknowledges and agrees that the Restricted Period is reasonable and valid in duration and scope\nand in all other respects. Palermo also represents that Palermo's experience and capabilities are such that the enforcement of the provisions of this\nAgreement will not prevent Palermo from earning a livelihood, and acknowledge that it would cause BSD&T serious and irreparable injury and cost\nif Palermo were to use Palermo's ability and knowledge in competition with BSD&T or to otherwise breach the obligations contained in this\nAgreement.\n3.04 Extension of Restricted Period. Palermo agrees that the nonsolicitation obligations contained in this Agreement shall be extended by the length\nof time during which Palermo shall have been in breach of any of the provisions.\n3.05 Definitions. Palermo understands that for the purposes of this Agreement:\n(a) "Relevant Financial Services" trust and custody and related services, such as securities lending, investment accounting, pension\nmanagement, trade processing, performance measurement and investment analysis services, investment-related foreign exchange, risk management\nand fiduciary monitoring for pension funds i.e. defined benefit/defined contribution markets, foundations, investment managers and insurance\ncompanies provided in sub-custodian relationships with banks and joint relationships provided by BSD&T from time to time or investment\nmanagement services which at any time during the twelve (12) months preceding the termination of Palermo's employment are or were within the\nscope of his responsibilities.\n(b) Palermo understands that for the purposes of this Agreement, "Customer" or "Client" of BSD&T means any person or entity who (i) is\nreceiving Relevant Financial Services from BSD&T on the date of termination of his employment with BSD&T or its parent, subsidiary, affiliate\nor\nrelated entity (ii) received such services for compensation at any time during the 1 year period\n3\nimmediately preceding the date of termination of his employment, or (iii) Palermo solicited, directly or indirectly, in whole or in part, on behalf of\nBSD&T to provide financial services within one (1) year preceding the termination of his employment.\nARTICLE 4: DUTY OF LOYALTY\n4.01 Duty. of Loyalty. to BSD&T. Palermo agrees that at all times during employment by BSD&T, Palermo owes BSD&T a duty of loyalty and a\nduty to act in good faith. Palermo agrees that during employment Palermo will not individually, or in combination with any other Palermo or\ncompetitor of BSD&T, violate or breach the terms of this agreement, Code of Conduct or Mellon Securities Trading Policy.\n4.02 Cooperation. Palermo agrees that upon the termination of employment of Palermo, for any reason or no reason, including but not limited\nto\nresignation of employment, that Palermo will cooperate with BSD&T, upon reasonable notice and at reasonable times, in the prosecution and\ndefense of complaints, investigations, litigation, arbitration and mediation of any complaints, claims or actions now in existence or that may be\nthreatened or brought in the future relating to events or occurrences that transpired while employed by BSD&T.\n4.03 Prior Employer Restrictions. Palermo warrants that Palermo is not subject or party to any agreement, understanding or undertaking that would\nprevent or restrict Palermo from performing Palermo's employment duties or working with or on behalf of any customer or client. In addition,\nPalermo warrants that his employment with BSD&T does not violate any agreement, understanding or undertaking. Still further, Palermo agrees that\nPalermo will not in the course of performing duties for BSD&T violate any confidentiality obligations Palermo may owe to others.\n4.04 Disclosure of Agreement. Palermo acknowledges and agrees to disclose the existence and terms of this Agreement so long as and to the extent\nthat such terms remain in effect to (a) any prospective employer, partner or co-venturer prior to entering into an employment, partnership, or other\nbusiness relationship with such person or entity.\nARTICLE 5; SPECIAL, UNIQUE AND EXTRAORDINARY SERVICES\nPalermo acknowledges and agrees that in performing the job duties of his position that Palermo provides BSD&T with a special, unique and\nextraordinary service.\nARTICLE 6; WORKS FOR HIRE.\n6.01 Property of BSD&T. Palermo understands and agrees that any and all rights or interests that Palermo holds or obtains in any designs,\ntrade secrets, client, supplier, and vendor lists, sales and marketing plans, inventions, discoveries, improvements, copyrights, patent rights,\ntrademarks, and developments of any kind whatsoever, which are authored, conceived, reduced to practice, or otherwise obtained by Palermo during\nemployment with BSD&T which relate to or arise out of such employment with BSD&T are expressly regarded as property of BSD&T or "works\nfor hire" (the "Inventions").\n6.02 Disclosure;Assignment. Palermo agrees to promptly disclose to BSD&T any and all such Inventions and deliver to BSD&T, upon its\nrequest, a written description of such Invention and\n4\nany available documentary or other materials evidencing such Invention. Palermo hereby assigns to BSD&T the sole and exclusive right to such\nInventions, and that, upon request of BSD&T, will execute and deliver any and all documents or instruments and take any other action which\nBSD&T shall deem necessary to assign to and vest completely in it, to perfect trademark, trade secret, copyright and patent protection with respect\nto, or to otherwise protect BSD&T' trade secrets and proprietary interest in, such Inventions.\n6.03 Survival. These obligations shall continue beyond the termination of Palermo's employment, regardless of reason, with respect to such\nInventions conceived of, reduced to practice, or developed by Palermo during the term of employment with BSD&T.\n6.04 Fees. BSD&T agrees to pay any and all copyright, trademark and patent fees and expenses or other costs incurred by Palermo for any\nassistance rendered to BSD&T pursuant to this Article 6 and to promptly reimburse Palermo for all expenses incurred by Palermo in perfecting its\nproperty rights in the Inventions. Palermo's obligations to assign Inventions shall not apply to any invention about which Palermo can prove that: (i)\nthe invention was developed entirely on Palermo own time and effort, (ii) no equipment, supplies, facilities, resources, trade secrets or confidential\ninformation of BSD&T was used in the development of the invention; (iii) the invention does not relate to the business of BSD&T or to BSD&T'\nactual or anticipated research and development; and (iv) the invention does not result from any work otherwise performed by Palermo for BSD&T.\nARTICLE 7: REMEDIES\n7.01 Injunctive Relief. Palermo agrees that any breach or threatened breach of any of the covenants contained in the Agreement would cause\nimmediate, material and irreparable harm to BSD&T and that money damages would not provide an adequate remedy for BSD&T to protect and\npreserve the status quo. Therefore, PALERMO CONSENTS TO THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER or A\nPRELIMINARY or PERMANENT INJUNCTION ordering that:\na)\nthat Palermo immediately return to BSD&T all property and Confidential Information, whether original, duplicated, computerized,\nhandwritten, or in any other form whatsoever, and that Palermo be enjoined and restrained from using or disclosing any information\ncontained in such records; and\nb)\nthat, for a period of twelve (12) months, Palermo be enjoined and restrained from soliciting any client or customer whom Palermo served\nor whose name became known to Palermo while employed by BSD&T, in any office and in any capacity; and\nc)\nthat for a period of twelve (12) months, Palermo be enjoined and restrained from hiring, soliciting, or inducing any employee of BSD&T\nto leave BSD&T.\n7.02 Palermo agrees that BSD&T shall have all of the rights and remedies available under law, or in equity, including, but not limited to, injunctive\nrelief,\nto\na\nparty\nenforcing\nany\nsuch\ncovenant\neach\nof\nsuch\nrights\nand\nremedies\nto\nbe\nindependent\nof\nthe\nother\nand\nseverally\nenforceable\nincluding,\nbut not limited to, the right to have such covenants specifically enforced, and the right to require any violating party to account for and pay over to\nBSD&T all benefits derived or received by such violating party, or any of its subsidiaries or affiliates, as a result of any such breach of covenant.\n5\n7.03 Jurisdiction. For purposes of Article 7.01, Palermo agrees to submit to, and confer exclusive jurisdiction on, the United States District Court or\nthe State Court which has original jurisdiction for judicial district or county in which Palermo last worked for BSD&T. In addition, this Agreement\nshall be construed, governed by, and enforced in accordance with the laws of said jurisdiction.\nARTICLE 8: EMPLOYMENT AT WILL\nNOTHING HEREIN IS A PROMISE OF EMPLOYMENT FOR A FIXED TERM. PALERMO AGREES THAT HE REMAINS AT ALL TIMES\nAN EMPLOYEE AT WILL. BSD&T MAY TERMINATE PALERMO'S EMPLOYMENT FOR ANY REASON OR FOR NO REASON, JUST AS\nPALERMO MAY RESIGN AT ANY TIME.\nARTICLE 9: ASSIGNMENT\nPalermo expressly acknowledges and agrees that BSD&T may assign this Agreement, and its rights and obligations hereunder, to any other\nindividual, entity or organization that is a direct or indirect subsidiary of BSD&T or which acquires (whether by purchase, merger, consolidation or\notherwise) all or substantially all of the business of BSD&T, in either case without Palermo's consent and without the necessity that this Agreement\nbe re-signed at the time of such transfer, and the term "BSD&T" shall be deemed to include such entity or organization to which this Agreement is\nassigned. Any such transfer shall not in and of itself constitute a termination of Palermo's employment by BSD&T.\nARTICLE 10: MISCELLANEOUS\n10.01 Reasonableness; Severability.. Palermo agrees that the covenants set forth herein are reasonable and valid in duration and scope and in all other\nrespects. If any court or tribunal determines that any of such covenants, or any part thereof, are invalid or unenforceable, the remaining covenants\nshall not thereby be affected and they shall be given full effect, without regard to the invalid portions. If any court or tribunal determined that all, or\nany part of the covenants contained herein are unenforceable, because of the duration or scope of such provision, or for any other reason, such court\nor tribunal is directed to reduce the duration or scope of such provision, as the case may be, so that, in its reduced form, such provision shall then\nbe\nenforceable. If any provision or provisions hereof shall be deemed invalid or unenforceable either in whole or in part, this Agreement shall be\ndeemed amended to delete or modify, as necessary, the offending provision or provisions and to alter the bounds thereof in order to render it valid\nand enforceable.\n10.02 Additional Obligations. Palermo agrees that the obligations in this Agreement are in addition to and not in limitation or preemption of, all\nother obligations or prior agreements he has with BSD&T may have to BSD&T or under its Code of Conduct or general or specific legal or equitable\nprinciples.\n10.03 Time to Consider Agreement. PALERMO ACKNOWLEDGES AND AGREES THAT HE HAS READ AND REVIEWED THIS\nAGREEMENT IN ITS ENTIRETY AND HAS BEEN GIVEN AN OPPORTUNITY TO CONSIDER THE AGREEMENT AND TO ASK BSD&T\nQUESTIONS ABOUT IT. PALERMO ALSO AGREES THAT HE HAS BEEN GIVEN AN OPPORTUNITY TO CONSULT WITH AN\nATTORNEY OF HIS CHOICE PRIOR TO EXECUTING THE AGREEMENT. BY EXECUTING THE AGREEMENT, PALERMO EXPRESSLY\nACKNOWLEDGES THAT HE FULLY UNDERSTANDS THE TERMS OF THIS AGREEMENT AND KNOWINGLY AND FREELY AGREES\nTO ABIDE BY THEM.\n6\n10.04 Governing Law. This Agreement shall be deemed to be made and entered into in the Commonwealth of Massachusetts, and shall in all\nrespects be interpreted, enforced and governed under the laws of said State.\n10.05 Survival. Palermo acknowledges and agrees that the covenants and the restrictions contained in this Agreement are intended to protect\nBSD&T's interest in its Confidentia Information and its commercial relationships and goodwill with its customers, prospective customers, vendors,\nsuppliers, consultants and employees. Palermo acknowledges and agree that the covenants and the restrictions contained in this Agreement shall\ncontinue in accordance with the express terms hereof regardless of any changes in title, position, duties, salary, compensation, benefits or other terms\nand conditions of employment, and shall survive the termination of Palermo's employment.\n10.06 Headings. The underlined headings contained in this Agreement are for convenience of reference only and shall not affect the interpretation or\nconstruction of any provision hereof.\n/s/ James P. Palermo\n2/7/03\nDate\nJames P. Palermo\nCorrected 3/17/03\nBoston Safe Deposit and Trust Company\nBy: /s/ Linda B. Kane\n2/19/03\nDate\nLinda B. Kane\nCorrected 3/17/03\nSeniorVicePresident, Human Resources\n7	EX-10.1 3 dex101.htm CONFIDENTIALITY AND NONSOLICITATION AGREEMENT\nExhibit 10.1\nCONFIDENTIALITY AND NONSOLICITATION AGREEMENT\nTHIS CONFIDENTIALITY AND NONSOLICITATION AGREEMENT, (“Agreement”) made as of the 21st\nday of January, 2003, by and between\nBoston Safe Deposit &Trust Company, and on behalf of Mellon Bank, N.A, their parent companies, subsidiaries, affiliates, related entities,\nsuccessors and assigns (collectively “BSD&T”) and James P. Palermo (hereinafter “Palermo”) in consideration of employment by BSD&T and as a\ncondition precedent to the following additional compensation, the adequacy, sufficiency and receipt of which are hereby acknowledged, agree as\nfollows:\nARTICLE 1: CONSIDERATION\nIn exchange for Palermo’s execution of this Agreement within thirty (30) days of his receipt of the Agreement and as a condition precedent, BSD&T\nagrees to provide Palermo with a stock option award of 20,000 shares of Mellon Financial Corporation (“MFC”) Type I options (“Award”) upon\napproval of the Award by MFC Human Resources Committee at its January 21, 2003 meeting and his execution of the individualized stock option\nagreement. The Award is subject to the terms and conditions set forth in the MFC Long Term Profit Incentive Plan (1996), which is incorporated by\nreference.\nARTICLE 2: CONFIDENTIAL INFORMATION\n2.01 Definition of and Ownership of Confidential Information. Palermo recognizes, acknowledges and agrees that:\n(a) In the course of Palermo’s employment by BSD&T and as a Vice Chair of MFC Palermo has had and it will be necessary for Palermo to be\ngiven or have access to and become informed of confidential or proprietary information which BSD&T possesses or to which BSD&T has\nrights, which relates to BSD&T and which is not generally known to the public or in the trade and is a competitive asset of BSD&T, or\ninformation which constitutes a “trade secret” of BSD&T, as that term is defined by the Uniform Trade Secrets Act, as amended and approved\nby the National Conference of Commissioners on Uniform State Laws in 1985, including without limitation, (i) BSD&T’s planning data,\nrecords, observations and marketing strategies or techniques, computer programs, system documentation, manuals, formulae, processes,\noperation methods, machines, compositions; (ii) non-public terms of any new products, data bases, and investment strategies of BSD&T,\ntrading, arbitrage and/or hedging techniques or strategies,; (iii) non-public information relating to BSD&T personnel matters; (iv) BSD&T’s\nfinancial results and information about its business condition; (v) non-public terms of any investment, management or advisory agreement or\nother material contract of BSD&T; (vi) BSD&T’s proprietary software and related documents; (vii) BSD&T’s customer and client and\nprospecting lists, identifying information and contact persons at such customers and clients and prospects; and (viii) non-public material\ninformation concerning BSD&T’s clients or customers or their operations, condition (financial or otherwise) or plans whether such is original,\nduplicated, computerized, memorized, handwritten or in any other form (collectively referred to herein as the “Confidential Information”);\n(b) Confidential Information shall not include information generally known to the public other than by virtue of a breach of this Agreement by\nPalermo, information rightfully known to Palermo without limitation on disclosure prior to its receipt from BSD&T or a customer of\nBSD&T, information rightfully received from a third party without limitation on disclosure and information generally made available by\nBSD&T or a client or customer of BSD&T to third parties without restriction on disclosure; or information required to be disclosed by law,\nrule, regulation or order without an obligation of confidentiality on the part of the recipient, provided that prior to making any disclosure under\nthis clause Palermo shall, if permissible under the law, rule or regulation, provide the Company with notice and the opportunity to contest such\ndisclosure.\n(c) The Confidential Information has been developed or acquired by BSD&T with significant expenditures of time, effort and money and is\nunique and cannot be lawfully duplicated or easily acquired. The Confidential Information is the sole and exclusive property of BSD&T (and\nin some cases the property of a customer of BSD&T). BSD&T takes all reasonable measures to maintain its confidentiality and to guard its\nsecrecy. The Confidential Information is not generally known outside BSD&T and within BSD&T this information is confidential and used\nonly on a “need to know” basis. The Confidential Information is unique and cannot be lawfully duplicated or easily acquired. Palermo agrees\nthat the Confidential Information is deserving of trade secret status and protection, as that term is defined by the Uniform Trade Secrets Act, as\namended and approved by the National Conference of Commissioners on Uniform State Laws in 1985.\n2.01 Use of Confidential Information. Palermo agrees that the use, except for the sole purpose of conducting business on behalf of BSD&T or with\nprior written consent of BSD&T, misappropriation or disclosure of the Confidential Information would constitute a breach of trust and could cause\nirreparable injury to BSD&T.\n2.02 Nondisclosure of Confidential Information. Palermo agrees that it is essential to the protection of BSD&T’s goodwill and to the maintenance of\nBSD&T’s competitive position that the Confidential Information be kept secret and Palermo agrees not to disclose the Confidential Information to\nothers or use the Confidential Information to Palermo’s own advantage or the advantage of others either during employment or at any time thereafter.\n2.03 Additional Obligations. Palermo agrees that the obligations under this Article are in addition to, and not in limitation or preemption of, all other\nobligations of confidentiality which Palermo may have to BSD&T under its Code of Conduct or general or specific legal or equitable principles.\n2.04 Return of BSD&T Property. Palermo agrees that upon the termination of employment, for any reason or no reason, or at any other time BSD&T\nmay request, that Palermo will immediately return to BSD&T all Confidential Information and all of its property, including without limitation, all\ndocuments (including copies) and information, however maintained (including computer files, tapes, and recordings), concerning BSD&T or\nacquired by the Palermo in the course and scope of employment (excluding only those documents relating solely to Palermo’s own salary and\nbenefits).\nARTICLE 3: NONSOLICITATION OF ACCOUNTS AND EMPLOYEES\n3.01 Nonsolicitation of Clients or Customers. Palermo covenants and agrees that during employment and that upon the termination his employment,\nfor any reason or no reason, including but not limited to resignation of employment, that for a period of twelve (12) months following the\ntermination of his employment (“Restricted Period”), Palermo, whether directly or indirectly, in any capacity whatsoever (whether as proprietor,\npartner, investor, shareholder, director, officer, employer, consultant, independent contractor, co-venturer, financier, agent, representative or\notherwise) shall not:\n2\n(a) provide or assist with the provision of Relevant Financial Services to a Client or Customer of the BSD&T, except as an employee of\nBSD&T or the parents, affiliates or related entity of BSD&T; provided that this Article 3 does not prohibit Palermo from being employed by or\naffiliated or associated with any person or entity after termination his employment with BSD&T so long as he does not have any involvement\non behalf of any person or entity with respect to soliciting, managing, administering, supporting or retaining the Relevant Financial Services\nbusiness provided or proposed to be provided to a Customer or Client of BSD&T; and/or\n(b) solicit by mail, phone, personal meeting, or by any other means, either directly or indirectly, the business or patronage of any Customer or\nClient of BSD&T for any other person or entity, divert, entice, or otherwise take away from BSD&T the business or patronage of any\nCustomer or Client of BSD&T, or attempt to do so, or solicit or induce any Customer or Client of BSD&T to terminate or reduce its\nrelationship with BSD&T.\n3.02 Nonsolicitation of Employees. Palermo covenants and agrees that during employment with BSD&T and during the Restricted Period that\nPalermo shall not, directly or indirectly, hire, recruit solicit or induce, or attempt to hire, recruit solicit or induce, (or in any way assist another person\nor enterprise in recruiting, soliciting or inducing) any employee of BSD&T to leave BSD&T or any affiliate for any reason whatsoever.\n3.03 Reasonableness of Restricted Period. Palermo acknowledges and agrees that the Restricted Period is reasonable and valid in duration and scope\nand in all other respects. Palermo also represents that Palermo’s experience and capabilities are such that the enforcement of the provisions of this\nAgreement will not prevent Palermo from earning a livelihood, and acknowledge that it would cause BSD&T serious and irreparable injury and cost\nif Palermo were to use Palermo’s ability and knowledge in competition with BSD&T or to otherwise breach the obligations contained in this\nAgreement.\n3.04 Extension of Restricted Period. Palermo agrees that the nonsolicitation obligations contained in this Agreement shall be extended by the length\nof time during which Palermo shall have been in breach of any of the provisions.\n3.05 Definitions. Palermo understands that for the purposes of this Agreement:\n(a) “Relevant Financial Services” trust and custody and related services, such as securities lending, investment accounting, pension\nmanagement, trade processing, performance measurement and investment analysis services, investment-related foreign exchange, risk management\nand fiduciary monitoring for pension funds i.e. defined benefit/defined contribution markets, foundations, investment managers and insurance\ncompanies provided in sub-custodian relationships with banks and joint relationships provided by BSD&T from time to time or investment\nmanagement services which at any time during the twelve (12) months preceding the termination of Palermo’s employment are or were within the\nscope of his responsibilities.\n(b) Palermo understands that for the purposes of this Agreement, “Customer” or “Client” of BSD&T means any person or entity who (i) is\nreceiving Relevant Financial Services from BSD&T on the date of termination of his employment with BSD&T or its parent, subsidiary, affiliate or\nrelated entity (ii) received such services for compensation at any time during the 1 year period\n3\nimmediately preceding the date of termination of his employment, or (iii) Palermo solicited, directly or indirectly, in whole or in part, on behalf of\nBSD&T to provide financial services within one (1) year preceding the termination of his employment.\nARTICLE 4: DUTY OF LOYALTY\n4.01 Duty of Loyalty to BSD&T. Palermo agrees that at all times during employment by BSD&T, Palermo owes BSD&T a duty of loyalty and a\nduty to act in good faith. Palermo agrees that during employment Palermo will not individually, or in combination with any other Palermo or\ncompetitor of BSD&T, violate or breach the terms of this agreement, Code of Conduct or Mellon Securities Trading Policy.\n4.02 Cooperation. Palermo agrees that upon the termination of employment of Palermo, for any reason or no reason, including but not limited to\nresignation of employment, that Palermo will cooperate with BSD&T, upon reasonable notice and at reasonable times, in the prosecution and\ndefense of complaints, investigations, litigation, arbitration and mediation of any complaints, claims or actions now in existence or that may be\nthreatened or brought in the future relating to events or occurrences that transpired while employed by BSD&T.\n4.03 Prior Employer Restrictions. Palermo warrants that Palermo is not subject or party to any agreement, understanding or undertaking that would\nprevent or restrict Palermo from performing Palermo’s employment duties or working with or on behalf of any customer or client. In addition,\nPalermo warrants that his employment with BSD&T does not violate any agreement, understanding or undertaking. Still further, Palermo agrees that\nPalermo will not in the course of performing duties for BSD&T violate any confidentiality obligations Palermo may owe to others.\n4.04 Disclosure of Agreement. Palermo acknowledges and agrees to disclose the existence and terms of this Agreement so long as and to the extent\nthat such terms remain in effect to (a) any prospective employer, partner or co-venturer prior to entering into an employment, partnership, or other\nbusiness relationship with such person or entity.\nARTICLE 5; SPECIAL, UNIQUE AND EXTRAORDINARY SERVICES\nPalermo acknowledges and agrees that in performing the job duties of his position that Palermo provides BSD&T with a special, unique and\nextraordinary service.\nARTICLE 6; WORKS FOR HIRE.\n6.01 Property of BSD&T. Palermo understands and agrees that any and all rights or interests that Palermo holds or obtains in any designs,\ntrade secrets, client, supplier, and vendor lists, sales and marketing plans, inventions, discoveries, improvements, copyrights, patent rights,\ntrademarks, and developments of any kind whatsoever, which are authored, conceived, reduced to practice, or otherwise obtained by Palermo during\nemployment with BSD&T which relate to or arise out of such employment with BSD&T are expressly regarded as property of BSD&T or “works\nfor hire” (the “Inventions”).\n6.02 Disclosure;Assignment. Palermo agrees to promptly disclose to BSD&T any and all such Inventions and deliver to BSD&T, upon its\nrequest, a written description of such Invention and\n4\nany available documentary or other materials evidencing such Invention. Palermo hereby assigns to BSD&T the sole and exclusive right to such\nInventions, and that, upon request of BSD&T, will execute and deliver any and all documents or instruments and take any other action which\nBSD&T shall deem necessary to assign to and vest completely in it, to perfect trademark, trade secret, copyright and patent protection with respect\nto, or to otherwise protect BSD&T’ trade secrets and proprietary interest in, such Inventions.\n6.03 Survival. These obligations shall continue beyond the termination of Palermo’s employment, regardless of reason, with respect to such\nInventions conceived of, reduced to practice, or developed by Palermo during the term of employment with BSD&T.\n6.04 Fees. BSD&T agrees to pay any and all copyright, trademark and patent fees and expenses or other costs incurred by Palermo for any\nassistance rendered to BSD&T pursuant to this Article 6 and to promptly reimburse Palermo for all expenses incurred by Palermo in perfecting its\nproperty rights in the Inventions. Palermo’s obligations to assign Inventions shall not apply to any invention about which Palermo can prove that: (i)\nthe invention was developed entirely on Palermo own time and effort, (ii) no equipment, supplies, facilities, resources, trade secrets or confidential\ninformation of BSD&T was used in the development of the invention; (iii) the invention does not relate to the business of BSD&T or to BSD&T’\nactual or anticipated research and development; and (iv) the invention does not result from any work otherwise performed by Palermo for BSD&T.\nARTICLE 7: REMEDIES\n7.01 Injunctive Relief. Palermo agrees that any breach or threatened breach of any of the covenants contained in the Agreement would cause\nimmediate, material and irreparable harm to BSD&T and that money damages would not provide an adequate remedy for BSD&T to protect and\npreserve the status quo. Therefore, PALERMO CONSENTS TO THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER or A\nPRELIMINARY or PERMANENT INJUNCTION ordering that:\na) that Palermo immediately return to BSD&T all property and Confidential Information, whether original, duplicated, computerized,\nhandwritten, or in any other form whatsoever, and that Palermo be enjoined and restrained from using or disclosing any information\ncontained in such records; and\nb) that, for a period of twelve (12) months, Palermo be enjoined and restrained from soliciting any client or customer whom Palermo served\nor whose name became known to Palermo while employed by BSD&T, in any office and in any capacity; and\nc) that for a period of twelve (12) months, Palermo be enjoined and restrained from hiring, soliciting, or inducing any employee of BSD&T\nto leave BSD&T.\n7.02 Palermo agrees that BSD&T shall have all of the rights and remedies available under law, or in equity, including, but not limited to, injunctive\nrelief, to a party enforcing any such covenant each of such rights and remedies to be independent of the other and severally enforceable including,\nbut not limited to, the right to have such covenants specifically enforced, and the right to require any violating party to account for and pay over to\nBSD&T all benefits derived or received by such violating party, or any of its subsidiaries or affiliates, as a result of any such breach of covenant.\n5\n7.03 Jurisdiction. For purposes of Article 7.01, Palermo agrees to submit to, and confer exclusive jurisdiction on, the United States District Court or\nthe State Court which has original jurisdiction for judicial district or county in which Palermo last worked for BSD&T. In addition, this Agreement\nshall be construed, governed by, and enforced in accordance with the laws of said jurisdiction.\nARTICLE 8: EMPLOYMENT AT WILL\nNOTHING HEREIN IS A PROMISE OF EMPLOYMENT FOR A FIXED TERM. PALERMO AGREES THAT HE REMAINS AT ALL TIMES\nAN EMPLOYEE AT WILL. BSD&T MAY TERMINATE PALERMO’S EMPLOYMENT FOR ANY REASON OR FOR NO REASON, JUST AS\nPALERMO MAY RESIGN AT ANY TIME.\nARTICLE 9: ASSIGNMENT\nPalermo expressly acknowledges and agrees that BSD&T may assign this Agreement, and its rights and obligations hereunder, to any other\nindividual, entity or organization that is a direct or indirect subsidiary of BSD&T or which acquires (whether by purchase, merger, consolidation or\notherwise) all or substantially all of the business of BSD&T, in either case without Palermo’s consent and without the necessity that this Agreement\nbe re-signed at the time of such transfer, and the term “BSD&T” shall be deemed to include such entity or organization to which this Agreement is\nassigned. Any such transfer shall not in and of itself constitute a termination of Palermo’s employment by BSD&T.\nARTICLE 10: MISCELLANEOUS\n10.01 Reasonableness; Severability. Palermo agrees that the covenants set forth herein are reasonable and valid in duration and scope and in all other\nrespects. If any court or tribunal determines that any of such covenants, or any part thereof, are invalid or unenforceable, the remaining covenants\nshall not thereby be affected and they shall be given full effect, without regard to the invalid portions. If any court or tribunal determined that all, or\nany part of the covenants contained herein are unenforceable, because of the duration or scope of such provision, or for any other reason, such court\nor tribunal is directed to reduce the duration or scope of such provision, as the case may be, so that, in its reduced form, such provision shall then be\nenforceable. If any provision or provisions hereof shall be deemed invalid or unenforceable either in whole or in part, this Agreement shall be\ndeemed amended to delete or modify, as necessary, the offending provision or provisions and to alter the bounds thereof in order to render it valid\nand enforceable.\n10.02 Additional Obligations. Palermo agrees that the obligations in this Agreement are in addition to and not in limitation or preemption of, all\nother obligations or prior agreements he has with BSD&T may have to BSD&T or under its Code of Conduct or general or specific legal or equitable\nprinciples.\n10.03 Time to Consider Agreement. PALERMO ACKNOWLEDGES AND AGREES THAT HE HAS READ AND REVIEWED THIS\nAGREEMENT IN ITS ENTIRETY AND HAS BEEN GIVEN AN OPPORTUNITY TO CONSIDER THE AGREEMENT AND TO ASK BSD&T\nQUESTIONS ABOUT IT. PALERMO ALSO AGREES THAT HE HAS BEEN GIVEN AN OPPORTUNITY TO CONSULT WITH AN\nATTORNEY OF HIS CHOICE PRIOR TO EXECUTING THE AGREEMENT. BY EXECUTING THE AGREEMENT, PALERMO EXPRESSLY\nACKNOWLEDGES THAT HE FULLY UNDERSTANDS THE TERMS OF THIS AGREEMENT AND KNOWINGLY AND FREELY AGREES\nTO ABIDE BY THEM.\n6\n10.04 Governing Law. This Agreement shall be deemed to be made and entered into in the Commonwealth of Massachusetts, and shall in all\nrespects be interpreted, enforced and governed under the laws of said State.\n10.05 Survival. Palermo acknowledges and agrees that the covenants and the restrictions contained in this Agreement are intended to protect\nBSD&T’s interest in its Confidential Information and its commercial relationships and goodwill with its customers, prospective customers, vendors,\nsuppliers, consultants and employees. Palermo acknowledges and agree that the covenants and the restrictions contained in this Agreement shall\ncontinue in accordance with the express terms hereof regardless of any changes in title, position, duties, salary, compensation, benefits or other terms\nand conditions of employment, and shall survive the termination of Palermo’s employment.\n10.06 Headings. The underlined headings contained in this Agreement are for convenience of reference only and shall not affect the interpretation or\nconstruction of any provision hereof.\n2/7/03\n/s/ James P. Palermo\nDate\nJames P. Palermo\nCorrected 3/17/03\nBoston Safe Deposit and Trust Company\n2/19/03\nBy: /s/ Linda B. Kane\nDate\nLinda B. Kane\nCorrected 3/17/03\nSeniorVicePresident, Human Resources\n7
+6ef3c1b23f4cc41fb6eb045cc9c21a1a.pdf	effective_date jurisdiction party term	EX-99.(E)(2) 3 g11116exv99wxeyx2y.htm EX-99.(E)(2) CONFIDENTIALITY AGREEMENT\nExhibit 99(e)(2)\nOctober 12, 2007\nReckitt Benckiser plc\n103-105 Bath Road\nSlough\nBerks\nSL1 3UH\nAttn: Andrew Baldry\nCorporate Development Director\nCONFIDENTIALITY AGREEMENT\nDear Sir or Madam:\nIn connection with your possible interest in a potential business combination (the “Transaction”) involving Adams\nRespiratory Therapeutics, Inc. (the “Company”), you have requested that we or our representatives furnish you or your\nrepresentatives with certain information relating to the Company or the Transaction. All such information (whether oral or\ncontained on written or other tangible or electronic medium) furnished (whether before or after the date hereof) by us or our\ndirectors, officers, employees, affiliates, representatives (including, without limitation, financial advisors, attorneys and\naccountants) or agents (collectively, “our Representatives”) to you or your directors, officers, employees, affiliates,\nrepresentatives (including, without limitation, financial advisors, attorneys and accountants) or agents or your potential\nsources of financing for the Transaction (collectively, “your Representatives”) and all analyses, compilations, forecasts,\nstudies or other documents prepared by you or your Representatives in connection with your or their review of, or your\ninterest in, the Transaction which contain or reflect any such information is hereinafter referred to as the “Information”. The\nterm Information will not, however, include information which (i) is or becomes publicly available other than as a result of a\ndisclosure by you or your Representatives or (ii) is or becomes available to you on a nonconfidential basis from a source\n(other than us or our Representatives) which, to the best of your knowledge after due inquiry, is not prohibited from disclosing\nsuch information to you by a legal, contractual or fiduciary obligation to us.\nAccordingly, you hereby agree that:\n1. You and your Representatives (i) will keep the Information confidential and will not (except as required by legal\nprocess, and only after compliance with paragraph 3 below), without our prior written consent, disclose any Information\nin any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided,\nhowever, that you may reveal the Information to your Representatives (a) who need to know the Information for the\npurpose of evaluating the Transaction, (b) who are informed by you of the confidential nature of the Information and\n(c) who agree to act in accordance with the terms of this letter agreement. You will cause your Representatives to observe\nthe terms of this letter agreement, and you will be responsible for any breach of this letter agreement by any of your\nRepresentatives.\n2. You and your Representatives will not (except as required by legal process, and only after compliance with\nparagraph 3 below), without our prior written consent, disclose to any person the fact that the Information exists or has\nbeen made available, that you are considering the Transaction or any other transaction involving the Company, or that\ndiscussions or negotiations are taking or have taken place concerning the Transaction or involving the Company or any\nterm, condition or other fact relating to the Transaction or such discussions or negotiations, including, without limitation,\nthe status thereof.\n3. In the event that you or any of your Representatives are requested pursuant to, or required by, applicable law,\nregulation or legal process to disclose any of the Information, you will notify us promptly so that we may seek a\nprotective order or other appropriate remedy or, in our sole discretion, waive compliance with the terms of this letter\nagreement. In the event that no such protective order or other remedy is obtained, or that the Company does not waive\ncompliance with the terms of this letter agreement, you will furnish only that portion of the Information which you are\nadvised by counsel is legally required and will exercise all reasonable efforts to obtain reliable assurance that confidential\ntreatment will be accorded the Information.\n4. If you determine not to proceed with the Transaction, you will promptly inform our Representative, Morgan\nStanley & Co. Incorporated (“Morgan Stanley”), of that decision and, in that case, and at any time\nupon the request of the Company or any of our Representatives, you will either (i) promptly destroy all Information on\nany tangible or electronic medium in your or your Representatives’ possession and confirm such destruction to us in\nwriting, or (ii) promptly deliver to the Company at your own expense all tangible media containing Information in your\nor your Representatives’ possession. Any oral Information will continue to be subject to the terms of this letter\nagreement.\n5. You acknowledge that neither we, nor Morgan Stanley or its affiliates, nor our other Representatives, nor any of\nour or their respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of\nthe Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the\naccuracy or completeness of the Information, and you agree that no such person will have any liability relating to the\nInformation or for any errors therein or omissions therefrom. You further agree that you are not entitled to rely on the\naccuracy or completeness of the Information and that you will be entitled to rely solely on such representations and\nwarranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and\nrestrictions as may be contained therein.\n6. You are aware, and you will advise your Representatives who are informed of the matters that are the subject of\nthis letter agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities\nby any person who has received material, non-public information from the issuer of such securities and on the\ncommunication of such information to any other person when it is reasonably foreseeable that such other person is likely\nto purchase or sell such securities in reliance upon such information.\n7. You agree that, for a period of two years from the date of this letter agreement, neither you nor any of your\naffiliates will, without the prior written consent of the Company or its Board of Directors: (i) acquire, offer to acquire, or\nagree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to\nacquire any voting securities of the Company or any subsidiary thereof, or of any successor to or person in control of the\nCompany, or any assets of the Company or any subsidiary or division thereof or of any such successor or controlling\nperson; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are\nused in the rules of the Securities Exchange Commission) to vote, or seek to advise or influence any person or entity with\nrespect to the voting of, any voting securities of the Company; (iii) make any public announcement with respect to, or\nsubmit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving the Company or its\nsecurities or assets; (iv) form, join or in any way participate in a “group” (as defined in Section 13 (d)(3) of the Securities\nExchange Act of 1934, as amended) in connection with any of the foregoing; or (v) request the Company or any of our\nRepresentatives, directly or indirectly, to amend or waive any provision of this paragraph. You will promptly advise the\nCompany of any inquiry or proposal made to you with respect to any of the foregoing.\n8. You agree that, for a period of two years from the date of this letter agreement, you will not, directly or indirectly,\nsolicit for employment or hire any employee of the Company or any of its subsidiaries with whom you have had contact\nor who became known to you in connection with your consideration of the Transaction; provided, however, that the\nforegoing provision will not prevent you from employing any such person who contacts you on his or her own initiative\nwithout any direct or indirect solicitation by or encouragement from you.\n9. You agree that all (i) communications regarding the Transaction, (ii) requests for additional information, facility\ntours or management meetings, and (iii) discussions or questions regarding procedures with respect to the Transaction,\nwill be first submitted or directed to Morgan Stanley and not to the Company. You acknowledge and agree that (a) we\nand our Representatives are free to conduct the process leading up to a possible Transaction as we and our\nRepresentatives, in our sole discretion, determine (including, without limitation, by negotiating with any prospective\nbuyer and entering into a preliminary or definitive agreement without prior notice to you or any other person), (b) we\nreserve the right, in our sole discretion, to change the procedures relating to our consideration of the Transaction at any\ntime without prior notice to you or any other person, to reject any and all proposals made by you or any of your\nRepresentatives with regard to the Transaction, and to terminate discussions and negotiations with you at any time and\nfor any reason, and (c) unless and until a written definitive agreement concerning the Transaction has been executed,\nneither we\nnor any of our Representatives will have any liability to you with respect to the Transaction, whether by virtue of this\nletter agreement, any other written or oral expression with respect to the Transaction or otherwise.\n10. You acknowledge that remedies at law may be inadequate to protect us against any actual or threatened breach\nof this letter agreement by you or by your Representatives, and, without prejudice to any other rights and remedies\notherwise available to us, you agree to the granting of injunctive relief in our favor without proof of actual damages. In\nthe event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final,\nnonappealable order that this letter agreement has been breached by you or by your Representatives, then you will\nreimburse the Company for its costs and expenses (including, without limitation, legal fees and expenses) incurred in\nconnection with all such litigation.\n11. You agree that no failure or delay by us in exercising any right, power or privilege hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any right, power or privilege hereunder.\n12. This letter agreement will be governed by and construed in accordance with the laws of the State of New York\napplicable to contracts between residents of that State and executed in and to be performed in that State.\n13. You hereby (a) submit to the jurisdiction of any New York State and Federal courts sitting in New York City\nwith respect to all actions and proceedings arising out of or relating to this letter agreement, (b) agree that all claims with\nrespect to any such action or proceeding may be heard and determined in such New York State or Federal court,\n(c) waive the defense of an inconvenient forum, (d) agree that a final judgment in any such action or proceeding shall be\nconclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.\n14. This letter agreement contains the entire agreement between you and us concerning the confidentiality of the\nInformation, and no modifications of this letter agreement or waiver of the terms and conditions hereof will be binding\nupon you or us, unless approved in writing by each of you and us.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this\nletter enclosed herewith.\nVery truly yours,\nADAMS RESPIRATORY THERAPEUTICS, INC.\nBy: /s/ Walter E. Riehemann\nName: Walter E. Riehemann\nTitle: EVP and General Counsel\nAccepted and Agreed as of the date first written above:\nRECKITT BENCKISER PLC\nBy: /s/ Andrew Baldry\nName: Andrew Baldry\nTitle: Corporate Development Director\nDate: 15 October 2007	EX-99.(E)(2) 3 g11116exv99wxeyx2y.htm EX-99.(E)(2) CONFIDENTIALITY AGREEMENT\nExhibit 99(e)(2)\nOctober 12, 2007\nReckitt Benckiser plc\n103-105 Bath Road\nSlough\nBerks\nSL1 3UH\nAttn: Andrew Baldry\nCorporate Development Director\nCONFIDENTIALITY AGREEMENT\nDear Sir or Madam:\nIn connection with your possible interest in a potential business combination (the “Transaction”) involving Adams\nRespiratory Therapeutics, Inc. (the “Company”), you have requested that we or our representatives furnish you or your\nrepresentatives with certain information relating to the Company or the Transaction. All such information (whether oral or\ncontained on written or other tangible or electronic medium) furnished (whether before or after the date hereof) by us or our\ndirectors, officers, employees, affiliates, representatives (including, without limitation, financial advisors, attorneys and\naccountants) or agents (collectively, “our Representatives”) to you or your directors, officers, employees, affiliates,\nrepresentatives (including, without limitation, financial advisors, attorneys and accountants) or agents or your potential\nsources of financing for the Transaction (collectively, “your Representatives™) and all analyses, compilations, forecasts,\nstudies or other documents prepared by you or your Representatives in connection with your or their review of, or your\ninterest in, the Transaction which contain or reflect any such information is hereinafter referred to as the “Information”. The\nterm Information will not, however, include information which (i) is or becomes publicly available other than as a result of a\ndisclosure by you or your Representatives or (ii) is or becomes available to you on a nonconfidential basis from a source\n(other than us or our Representatives) which, to the best of your knowledge after due inquiry, is not prohibited from disclosing\nsuch information to you by a legal, contractual or fiduciary obligation to us.\nAccordingly, you hereby agree that:\n1. You and your Representatives (i) will keep the Information confidential and will not (except as required by legal\nprocess, and only after compliance with paragraph 3 below), without our prior written consent, disclose any Information\nin any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided,\nhowever, that you may reveal the Information to your Representatives (a) who need to know the Information for the\npurpose of evaluating the Transaction, (b) who are informed by you of the confidential nature of the Information and\n(c) who agree to act in accordance with the terms of this letter agreement. You will cause your Representatives to observe\nthe terms of this letter agreement, and you will be responsible for any breach of this letter agreement by any of your\nRepresentatives.\n2. You and your Representatives will not (except as required by legal process, and only after compliance with\nparagraph 3 below), without our prior written consent, disclose to any person the fact that the Information exists or has\nbeen made available, that you are considering the Transaction or any other transaction involving the Company, or that\ndiscussions or negotiations are taking or have taken place concerning the Transaction or involving the Company or any\nterm, condition or other fact relating to the Transaction or such discussions or negotiations, including, without limitation,\nthe status thereof.\n3. In the event that you or any of your Representatives are requested pursuant to, or required by, applicable law,\nregulation or legal process to disclose any of the Information, you will notify us promptly so that we may seek a\nprotective order or other appropriate remedy or, in our sole discretion, waive compliance with the terms of this letter\nagreement. In the event that no such protective order or other remedy is obtained, or that the Company does not waive\ncompliance with the terms of this letter agreement, you will furnish only that portion of the Information which you are\nadvised by counsel is legally required and will exercise all reasonable efforts to obtain reliable assurance that confidential\ntreatment will be accorded the Information.\n4. If you determine not to proceed with the Transaction, you will promptly inform our Representative, Morgan\nStanley & Co. Incorporated (“Morgan Stanley”), of that decision and, in that case, and at any time\nupon the request of the Company or any of our Representatives, you will either (i) promptly destroy all Information on\nany tangible or electronic medium in your or your Representatives’ possession and confirm such destruction to us in\nwriting, or (ii) promptly deliver to the Company at your own expense all tangible media containing Information in your\nor your Representatives’ possession. Any oral Information will continue to be subject to the terms of this letter\nagreement.\n5. You acknowledge that neither we, nor Morgan Stanley or its affiliates, nor our other Representatives, nor any of\nour or their respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of\nthe Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the\naccuracy or completeness of the Information, and you agree that no such person will have any liability relating to the\nInformation or for any errors therein or omissions therefrom. You further agree that you are not entitled to rely on the\naccuracy or completeness of the Information and that you will be entitled to rely solely on such representations and\nwarranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and\nrestrictions as may be contained therein.\n6. You are aware, and you will advise your Representatives who are informed of the matters that are the subject of\nthis letter agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities\nby any person who has received material, non-public information from the issuer of such securities and on the\ncommunication of such information to any other person when it is reasonably foreseeable that such other person is likely\nto purchase or sell such securities in reliance upon such information.\n7. You agree that, for a period of two years from the date of this letter agreement, neither you nor any of your\naffiliates will, without the prior written consent of the Company or its Board of Directors: (i) acquire, offer to acquire, or\nagree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to\nacquire any voting securities of the Company or any subsidiary thereof, or of any successor to or person in control of the\nCompany, or any assets of the Company or any subsidiary or division thereof or of any such successor or controlling\nperson; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are\nused in the rules of the Securities Exchange Commission) to vote, or seek to advise or influence any person or entity with\nrespect to the voting of, any voting securities of the Company; (iii) make any public announcement with respect to, or\nsubmit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving the Company or its\nsecurities or assets; (iv) form, join or in any way participate in a “group” (as defined in Section 13 (d)(3) of the Securities\nExchange Act of 1934, as amended) in connection with any of the foregoing; or (v) request the Company or any of our\nRepresentatives, directly or indirectly, to amend or waive any provision of this paragraph. You will promptly advise the\nCompany of any inquiry or proposal made to you with respect to any of the foregoing.\n8. You agree that, for a period of two years from the date of this letter agreement, you will not, directly or indirectly,\nsolicit for employment or hire any employee of the Company or any of its subsidiaries with whom you have had contact\nor who became known to you in connection with your consideration of the Transaction; provided, however, that the\nforegoing provision will not prevent you from employing any such person who contacts you on his or her own initiative\nwithout any direct or indirect solicitation by or encouragement from you.\n9. You agree that all (i) communications regarding the Transaction, (ii) requests for additional information, facility\ntours or management meetings, and (iii) discussions or questions regarding procedures with respect to the Transaction,\nwill be first submitted or directed to Morgan Stanley and not to the Company. You acknowledge and agree that (a) we\nand our Representatives are free to conduct the process leading up to a possible Transaction as we and our\nRepresentatives, in our sole discretion, determine (including, without limitation, by negotiating with any prospective\nbuyer and entering into a preliminary or definitive agreement without prior notice to you or any other person), (b) we\nreserve the right, in our sole discretion, to change the procedures relating to our consideration of the Transaction at any\ntime without prior notice to you or any other person, to reject any and all proposals made by you or any of your\nRepresentatives with regard to the Transaction, and to terminate discussions and negotiations with you at any time and\nfor any reason, and (c) unless and until a written definitive agreement concerning the Transaction has been executed,\nneither we\nnor any of our Representatives will have any liability to you with respect to the Transaction, whether by virtue of this\nletter agreement, any other written or oral expression with respect to the Transaction or otherwise.\n10. You acknowledge that remedies at law may be inadequate to protect us against any actual or threatened breach\nof this letter agreement by you or by your Representatives, and, without prejudice to any other rights and remedies\notherwise available to us, you agree to the granting of injunctive relief in our favor without proof of actual damages. In\nthe event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final,\nnonappealable order that this letter agreement has been breached by you or by your Representatives, then you will\nreimburse the Company for its costs and expenses (including, without limitation, legal fees and expenses) incurred in\nconnection with all such litigation.\n11. You agree that no failure or delay by us in exercising any right, power or privilege hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any right, power or privilege hereunder.\n12. This letter agreement will be governed by and construed in accordance with the laws of the State of New York\napplicable to contracts between residents of that State and executed in and to be performed in that State.\n13. You hereby (a) submit to the jurisdiction of any New York State and Federal courts sitting in New York City\nwith respect to all actions and proceedings arising out of or relating to this letter agreement, (b) agree that all claims with\nrespect to any such action or proceeding may be heard and determined in such New York State or Federal court,\n(c) waive the defense of an inconvenient forum, (d) agree that a final judgment in any such action or proceeding shall be\nconclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.\n14. This letter agreement contains the entire agreement between you and us concerning the confidentiality of the\nInformation, and no modifications of this letter agreement or waiver of the terms and conditions hereof will be binding\nupon you or us, unless approved in writing by each of you and us.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this\nletter enclosed herewith.\nVery truly yours,\nADAMS RESPIRATORY THERAPEUTICS, INC.\nBy: /s/ Walter E. Riehemann\nName: Walter E. Riehemann\nTitle: EVP and General Counsel\nAccepted and Agreed as of the date first written above:\nRECKITT BENCKISER PLC\nBy: /s/ Andrew Baldry\nName: Andrew Baldry\nTitle: Corporate Development Director\nDate: 15 October 2007	EX-99.(E)(2) 3 g11116exv99wxeyx2y.htm EX-99.(E)(2 CONFIDENTIALITY AGREEMENT\nExhibit 99(e)(2)\nOctober 12, 2007\nReckitt Benckiser plc\n103-105 Bath Road\nSlough\nBerks\nSL1 3UH\nAttn: Andrew Baldry\nCorporate Development Director\nCONFIDENTIALITY AGREEMENT\nDear Sir or Madam:\nIn connection with your possible interest in a potential business combination (the "Transaction") involving Adams\nRespiratory Therapeutics, Inc. (the "Company"), you have requested that we or our representatives furnish you or your\nrepresentatives with certain information relating to the Company or the Transaction. All such information (whether oral or\ncontained on written or other tangible or electronic medium) furnished (whether before or after the date hereof) by us or our\ndirectors, officers, employees, affiliates, representatives (including, without limitation, financial advisors, attorneys and\naccountants) or agents (collectively, "our Representatives") to you or your directors, officers, employees, affiliates,\nrepresentatives (including, without limitation, financial advisors, attorneys and accountants) or agents or your potential\nsources of financing for the Transaction (collectively, "your Representatives") and all analyses, compilations, forecasts,\nstudies or other documents prepared by you or your Representatives in connection with your or their review of, or your\ninterest in, the Transaction which contain or reflect any such information is hereinafter referred to as the "Information". The\nterm Information will not, however, include information which (i) is or becomes publicly available other than as a result of a\ndisclosure by you or your Representatives or (ii) is or becomes available to you on a nonconfidential basis from a source\n(other than us or our Representatives) which, to the best of your knowledge after due inquiry, is not prohibited from disclosing\nsuch information to you by a legal, contractual or fiduciary obligation to us.\nAccordingly, you hereby agree that:\n1. You and your Representatives (i) will keep the Information confidential and will not (except as required by legal\nprocess, and only after compliance with paragraph 3 below), without our prior written consent, disclose any Information\nin any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided,\nhowever, that you may reveal the Information to your Representatives (a) who need to know the Information for the\npurpose of evaluating the Transaction, (b) who are informed by you of the confidential nature of the Information and\n(c) who agree to act in accordance with the terms of this letter agreement. You will cause your Representatives to observe\nthe terms of this letter agreement, and you will be responsible for any breach of this letter agreement by any of your\nRepresentatives.\n2. You and your Representatives will not (except as required by legal process, and only after compliance with\nparagraph 3 below), without our prior written consent, disclose to any person the fact that the Information exists or has\nbeen made available, that you are considering the Transaction or any other transaction involving the Company, or that\ndiscussions or negotiations are taking or have taken place concerning the Transaction or involving the Company or any\nterm, condition or other fact relating to the Transaction or such discussions or negotiations, including, without limitation,\nthe status thereof.\n3. In the event that you or any of your Representatives are requested pursuant to, or required by, applicable law,\nregulation or legal process to disclose any of the Information, you will notify us promptly so that we may seek a\nprotective order or other appropriate remedy or, in our sole discretion, waive compliance with the terms of this letter\nagreement. In the event that no such protective order or other remedy is obtained, or that the Company does not waive\ncompliance with the terms of this letter agreement, you will furnish only that portion of the Information which you are\nadvised by counsel is legally required and will exercise all reasonable efforts to obtain reliable assurance that confidential\ntreatment will be accorded the Information.\n4. If you determine not to proceed with the Transaction, you will promptly inform our Representative, Morgan\nStanley & Co. Incorporated ("Morgan Stanley"), of that decision and, in that case, and at any time\nupon the request of the Company or any of our Representatives, you will either (i) promptly destroy all Information on\nany tangible or electronic medium in your or your Representatives' possession and confirm such destruction to us in\nwriting, or (ii) promptly deliver to the Company at your own expense all tangible media containing Information in your\nor your Representatives' possession. Any oral Information will continue to be subject to the terms of this letter\nagreement.\n5. You acknowledge that neither we, nor Morgan Stanley or its affiliates, nor our other Representatives, nor any of\nour or their respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of\nthe Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the\naccuracy or completeness of the Information, and you agree that no such person will have any liability relating to the\nInformation or for any errors therein or omissions therefrom. You further agree that you are not entitled to rely on the\naccuracy or completeness of the Information and that you will be entitled to rely solely on such representations and\nwarranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and\nrestrictions as may be contained therein.\n6. You are aware, and you will advise your Representatives who are informed of the matters that are the subject of\nthis letter agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities\nby any person who has received material, non-public information from the issuer of such securities and on the\ncommunication of such information to any other person when it is reasonably foreseeable that such other person is likely\nto purchase or sell such securities in reliance upon such information.\n7. You agree that, for a period of two years from the date of this letter agreement, neither you nor any of your\naffiliates will, without the prior written consent of the Company or its Board of Directors: (i) acquire, offer to acquire, or\nagree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to\nacquire any voting securities of the Company or any subsidiary thereof, or of any successor to or person in control of the\nCompany, or any assets of the Company or any subsidiary or division thereof or of any such successor or controlling\nperson; (ii) make, or in any way participate in, directly or indirectly, any "solicitation" of "proxies" (as such terms are\nused in the rules of the Securities Exchange Commission) to vote, or seek to advise or influence any person or entity with\nrespect to the voting of, any voting securities of the Company; (iii) make any public announcement with respect to, or\nsubmit a proposa for, or offer of (with or without conditions) any extraordinary transaction involving the Company or its\nsecurities or assets; (iv) form, join or in any way participate in a "group" (as defined in Section 13 (d)(3) of the Securities\nExchange Act of 1934, as amended) in connection with any of the foregoing; or (v) request the Company or any of our\nRepresentatives, directly or indirectly, to amend or waive any provision of this paragraph. You will promptly advise the\nCompany of any inquiry or proposal made to you with respect to any of the foregoing.\n8. You agree that, for a period of two years from the date of this letter agreement, you will not, directly or indirectly,\nsolicit for employment or hire any employee of the Company or any of its subsidiaries with whom you have had contact\nor who became known to you in connection with your consideration of the Transaction; provided, however, that the\nforegoing provision will not prevent you from employing any such person who contacts you on his or her own initiative\nwithout any direct or indirect solicitation by or encouragement from you.\n9. You agree that all (i) communications regarding the Transaction, (ii) requests for additional information, facility\ntours or management meetings, and (iii) discussions or questions regarding procedures with respect to the Transaction,\nwill be first submitted or directed to Morgan Stanley and not to the Company. You acknowledge and agree that (a) we\nand our Representatives are free to conduct the process leading up to a possible Transaction as we and our\nRepresentatives, in our sole discretion, determine (including, without limitation, by negotiating with any prospective\nbuyer and entering into a preliminary or definitive agreement without prior notice to you or any other person), (b) we\nreserve the right, in our sole discretion, to change the procedures relating to our consideration of the Transaction at any\ntime without prior notice to you or any other person, to reject any and all proposals made by you or any of your\nRepresentatives with regard to the Transaction, and to terminate discussions and negotiations with you at any time and\nfor any reason, and (c) unless and until a written definitive agreement concerning the Transaction has been executed,\nneither we\nnor any of our Representatives will have any liability to you with respect to the Transaction, whether by virtue of this\nletter agreement, any other written or oral expression with respect to the Transaction or otherwise.\n10. You acknowledge that remedies at law may be inadequate to protect us against any actual or threatened breach\nof this letter agreement by you or by your Representatives, and, without prejudice to any other rights and remedies\notherwise available to us, you agree to the granting of injunctive relief in our favor without proof of actual damages. In\nthe event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final,\nnonappealable order that this letter agreement has been breached by you or by your Representatives, then you will\nreimburse the Company for its costs and expenses (including, without limitation, legal fees and expenses) incurred in\nconnection with all such litigation.\n11. You agree that no failure or delay by us in exercising any right, power or privilege hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any right, power or privilege hereunder.\n12. This letter agreement will be governed by and construed in accordance with the laws of the State of New York\napplicable to contracts between residents of that State and executed in and to be performed in that State.\n13. You hereby (a) submit to the jurisdiction of any New York State and Federal courts sitting in New York City\nwith respect to all actions and proceedings arising out of or relating to this letter agreement, (b) agree that all claims with\nrespect to any such action or proceeding may be heard and determined in such New York State or Federal court,\n(c) waive the defense of an inconvenient forum, (d) agree that a final judgment in any such action or proceeding shall be\nconclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.\n14. This letter agreement contains the entire agreement between you and us concerning the confidentiality of the\nInformation, and no modifications of this letter agreement or waiver of the terms and conditions hereof will be binding\nupon you or us, unless approved in writing by each of you and us.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this\nletter enclosed herewith.\nVery truly yours,\nADAMS RESPIRATORY THERAPEUTICS, INC.\nBy: /s/ Walter E. Riehemann\nName: Walter E. Riehemann\nTitle: EVP and General Counsel\nAccepted and Agreed as of the date first written above:\nRECKITT BENCKISER PLC\nBy: /s/ Andrew Baldry\nName: Andrew Baldry\nTitle: Corporate Development Director\nDate: 15 October 2007	EX-99.(E)(2) 3 g11116exv99wxeyx2y.htm EX-99.(E)(2) CONFIDENTIALITY AGREEMENT\nExhibit 99(e)(2)\nOctober 12, 2007\nReckitt Benckiser plc\n103-105 Bath Road\nSlough\nBerks\nSL1 3UH\nAttn: Andrew Baldry\nCorporate Development Director\nCONFIDENTIALITY AGREEMENT\nDear Sir or Madam:\nIn connection with your possible interest in a potential business combination (the “Transaction”) involving Adams\nRespiratory Therapeutics, Inc. (the “Company”), you have requested that we or our representatives furnish you or your\nrepresentatives with certain information relating to the Company or the Transaction. All such information (whether oral or\ncontained on written or other tangible or electronic medium) furnished (whether before or after the date hereof) by us or our\ndirectors, officers, employees, affiliates, representatives (including, without limitation, financial advisors, attorneys and\naccountants) or agents (collectively, “our Representatives”) to you or your directors, officers, employees, affiliates,\nrepresentatives (including, without limitation, financial advisors, attorneys and accountants) or agents or your potential\nsources of financing for the Transaction (collectively, “your Representatives”) and all analyses, compilations, forecasts,\nstudies or other documents prepared by you or your Representatives in connection with your or their review of, or your\ninterest in, the Transaction which contain or reflect any such information is hereinafter referred to as the “Information”. The\nterm Information will not, however, include information which (i) is or becomes publicly available other than as a result of a\ndisclosure by you or your Representatives or (ii) is or becomes available to you on a nonconfidential basis from a source\n(other than us or our Representatives) which, to the best of your knowledge after due inquiry, is not prohibited from disclosing\nsuch information to you by a legal, contractual or fiduciary obligation to us.\nAccordingly, you hereby agree that:\n1. You and your Representatives (i) will keep the Information confidential and will not (except as required by legal\nprocess, and only after compliance with paragraph 3 below), without our prior written consent, disclose any Information\nin any manner whatsoever, and (ii) will not use any Information other than in connection with the Transaction; provided,\nhowever, that you may reveal the Information to your Representatives (a) who need to know the Information for the\npurpose of evaluating the Transaction, (b) who are informed by you of the confidential nature of the Information and\n(c) who agree to act in accordance with the terms of this letter agreement. You will cause your Representatives to observe\nthe terms of this letter agreement, and you will be responsible for any breach of this letter agreement by any of your\nRepresentatives.\n2. You and your Representatives will not (except as required by legal process, and only after compliance with\nparagraph 3 below), without our prior written consent, disclose to any person the fact that the Information exists or has\nbeen made available, that you are considering the Transaction or any other transaction involving the Company, or that\ndiscussions or negotiations are taking or have taken place concerning the Transaction or involving the Company or any\nterm, condition or other fact relating to the Transaction or such discussions or negotiations, including, without limitation,\nthe status thereof.\n3. In the event that you or any of your Representatives are requested pursuant to, or required by, applicable law,\nregulation or legal process to disclose any of the Information, you will notify us promptly so that we may seek a\nprotective order or other appropriate remedy or, in our sole discretion, waive compliance with the terms of this letter\nagreement. In the event that no such protective order or other remedy is obtained, or that the Company does not waive\ncompliance with the terms of this letter agreement, you will furnish only that portion of the Information which you are\nadvised by counsel is legally required and will exercise all reasonable efforts to obtain reliable assurance that confidential\ntreatment will be accorded the Information.\n4. If you determine not to proceed with the Transaction, you will promptly inform our Representative, Morgan\nStanley & Co. Incorporated (“Morgan Stanley”), of that decision and, in that case, and at any time\nupon the request of the Company or any of our Representatives, you will either (i) promptly destroy all Information on\nany tangible or electronic medium in your or your Representatives’ possession and confirm such destruction to us in\nwriting, or (ii) promptly deliver to the Company at your own expense all tangible media containing Information in your\nor your Representatives’ possession. Any oral Information will continue to be subject to the terms of this letter\nagreement.\n5. You acknowledge that neither we, nor Morgan Stanley or its affiliates, nor our other Representatives, nor any of\nour or their respective officers, directors, employees, agents or controlling persons within the meaning of Section 20 of\nthe Securities Exchange Act of 1934, as amended, makes any express or implied representation or warranty as to the\naccuracy or completeness of the Information, and you agree that no such person will have any liability relating to the\nInformation or for any errors therein or omissions therefrom. You further agree that you are not entitled to rely on the\naccuracy or completeness of the Information and that you will be entitled to rely solely on such representations and\nwarranties as may be included in any definitive agreement with respect to the Transaction, subject to such limitations and\nrestrictions as may be contained therein.\n6. You are aware, and you will advise your Representatives who are informed of the matters that are the subject of\nthis letter agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities\nby any person who has received material, non-public information from the issuer of such securities and on the\ncommunication of such information to any other person when it is reasonably foreseeable that such other person is likely\nto purchase or sell such securities in reliance upon such information.\n7. You agree that, for a period of two years from the date of this letter agreement, neither you nor any of your\naffiliates will, without the prior written consent of the Company or its Board of Directors: (i) acquire, offer to acquire, or\nagree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to\nacquire any voting securities of the Company or any subsidiary thereof, or of any successor to or person in control of the\nCompany, or any assets of the Company or any subsidiary or division thereof or of any such successor or controlling\nperson; (ii) make, or in any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are\nused in the rules of the Securities Exchange Commission) to vote, or seek to advise or influence any person or entity with\nrespect to the voting of, any voting securities of the Company; (iii) make any public announcement with respect to, or\nsubmit a proposal for, or offer of (with or without conditions) any extraordinary transaction involving the Company or its\nsecurities or assets; (iv) form, join or in any way participate in a “group” (as defined in Section 13 (d)(3) of the Securities\nExchange Act of 1934, as amended) in connection with any of the foregoing; or (v) request the Company or any of our\nRepresentatives, directly or indirectly, to amend or waive any provision of this paragraph. You will promptly advise the\nCompany of any inquiry or proposal made to you with respect to any of the foregoing.\n8. You agree that, for a period of two years from the date of this letter agreement, you will not, directly or indirectly,\nsolicit for employment or hire any employee of the Company or any of its subsidiaries with whom you have had contact\nor who became known to you in connection with your consideration of the Transaction; provided, however, that the\nforegoing provision will not prevent you from employing any such person who contacts you on his or her own initiative\nwithout any direct or indirect solicitation by or encouragement from you.\n9. You agree that all (i) communications regarding the Transaction, (ii) requests for additional information, facility\ntours or management meetings, and (iii) discussions or questions regarding procedures with respect to the Transaction,\nwill be first submitted or directed to Morgan Stanley and not to the Company. You acknowledge and agree that (a) we\nand our Representatives are free to conduct the process leading up to a possible Transaction as we and our\nRepresentatives, in our sole discretion, determine (including, without limitation, by negotiating with any prospective\nbuyer and entering into a preliminary or definitive agreement without prior notice to you or any other person), (b) we\nreserve the right, in our sole discretion, to change the procedures relating to our consideration of the Transaction at any\ntime without prior notice to you or any other person, to reject any and all proposals made by you or any of your\nRepresentatives with regard to the Transaction, and to terminate discussions and negotiations with you at any time and\nfor any reason, and (c) unless and until a written definitive agreement concerning the Transaction has been executed,\nneither we\nnor any of our Representatives will have any liability to you with respect to the Transaction, whether by virtue of this\nletter agreement, any other written or oral expression with respect to the Transaction or otherwise.\n10. You acknowledge that remedies at law may be inadequate to protect us against any actual or threatened breach\nof this letter agreement by you or by your Representatives, and, without prejudice to any other rights and remedies\notherwise available to us, you agree to the granting of injunctive relief in our favor without proof of actual damages. In\nthe event of litigation relating to this letter agreement, if a court of competent jurisdiction determines in a final,\nnonappealable order that this letter agreement has been breached by you or by your Representatives, then you will\nreimburse the Company for its costs and expenses (including, without limitation, legal fees and expenses) incurred in\nconnection with all such litigation.\n11. You agree that no failure or delay by us in exercising any right, power or privilege hereunder will operate as a\nwaiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any right, power or privilege hereunder.\n12. This letter agreement will be governed by and construed in accordance with the laws of the State of New York\napplicable to contracts between residents of that State and executed in and to be performed in that State.\n13. You hereby (a) submit to the jurisdiction of any New York State and Federal courts sitting in New York City\nwith respect to all actions and proceedings arising out of or relating to this letter agreement, (b) agree that all claims with\nrespect to any such action or proceeding may be heard and determined in such New York State or Federal court,\n(c) waive the defense of an inconvenient forum, (d) agree that a final judgment in any such action or proceeding shall be\nconclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.\n14. This letter agreement contains the entire agreement between you and us concerning the confidentiality of the\nInformation, and no modifications of this letter agreement or waiver of the terms and conditions hereof will be binding\nupon you or us, unless approved in writing by each of you and us.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this\nletter enclosed herewith.\nVery truly yours,\nADAMS RESPIRATORY THERAPEUTICS, INC.\nBy: /s/ Walter E. Riehemann\nName: Walter E. Riehemann\nTitle: EVP and General Counsel\nAccepted and Agreed as of the date first written above:\nRECKITT BENCKISER PLC\nBy: /s/ Andrew Baldry\nName: Andrew Baldry\nTitle: Corporate Development Director\nDate: 15 October 2007
+6f4d9016a432cc2465d798c71d5d2e4f.pdf	effective_date jurisdiction party term	EX-10.3 6 exhibit10c.htm NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.3\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION AND NON-DISCLOSURE AGREEMENT (“Agreement”) is made as of the ___ day of\n_ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ , 2005, by and between ENERGIZER HOLDINGS, INC., (hereinafter referred to as “ENERGIZER” and as defined in\nParagraph 11) and J. PATRICK MULCAHY (hereinafter referred to as “MR. MULCAHY”).\nWHEREAS, MR. MULCAHY is an employee of ENERGIZER in a key leadership and strategic position;\nWHEREAS, ENERGIZER and MR. MULCAHY acknowledge that, in MR. MULCAHY’s capacity as an employee of ENERGIZER,\nMR. MULCAHY did contribute to and/or receive Confidential Information, and MR. MULCAHY acknowledges that ENERGIZER will suffer\nirreparable harm if MR. MULCAHY, after having developed and/or created and/or becoming familiar with any such Confidential Information,\nmakes any unauthorized disclosure or communication of such Confidential Information to any third party or makes any use of such\nConfidential Information wrongfully or in competition with ENERGIZER;\nWHEREAS, MR. MULCAHY has indicated his interest in retiring; and\nWHEREAS, ENERGIZER desires to receive from MR. MULCAHY a covenant not to engage (either directly or indirectly) in\ncompetition with, or to solicit any client or account of, ENERGIZER; and\nWHEREAS, ENERGIZER desires to receive from MR. MULCAHY a covenant not to disclose certain information relating to\nENERGIZER’s business; and\nWHEREAS, ENERGIZER and MR. MULCAHY desire to confirm the terms and conditions of their agreements and understandings.\nNOW, THEREFORE, in consideration of the foregoing, the mutual promises herein contained, and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, and the parties hereto agree as follows:\n1. Covenants Not to Compete or Disclose. MR. MULCAHY acknowledges that the services rendered to ENERGIZER in the\naforesaid capacity are of a special character which have a unique value to ENERGIZER, the loss of which cannot be adequately\ncompensated by damages in an action of law. MR. MULCAHY agrees that by virtue of his employment, he has gained a special and unique\nunderstanding of ENERGIZER’s business in the formulation, processing, manufacturing, sale, and marketing of ENERGIZER’s battery and\nbattery related products and ENERGIZER’s wet-shave products, as well as other products formulated, processed, manufactured, sold, or\nmarketed by ENERGIZER during the tenure of MR. MULCAHY’s employment. MR . MULCAHY at all times recognizes and respects the\nadvantageous business relationship which exists between ENERGIZER and present and potential customers who have been made aware\nof the products and services of ENERGIZER. MR. MULCAHY makes the covenants contained in this Agreement in view of (i) the unique\nvalue of the services of MR. MULCAHY for which ENERGIZER has employed MR. MULCAHY; (ii) the Confidential Information obtained by\nor disclosed to MR. MULCAHY as an employee of ENERGIZER; and (iii) ENERGIZER’s agreement to provide MR. MULCAHY with\nconsideration as provided herein.\n2.\nNon-Competition.\na.\nMR. MULCAHY agrees that for a period of five (5) years after termination of MR. MULCAHY’s employment\n--\ni.e ., from January 25, 2005 through January 25, 2010 -- (“the Non-Compete Period”), MR. MULCAHY will not compete\nagainst ENERGIZER in ENERGIZER business.\nb.\nFor purposes of this Agreement, “ENERGIZER business” shall mean any of the following business\nactivities: all aspects of manufacturing, marketing, distributing, consulting with regard to, and/or operating a facility for the\nmanufacturing, processing, marketing, or distribution of batteries, lighting products, rechargeable batteries, related battery and\nlighting products, and wet-shave products. “ENERGIZER business” includes products and/or methods that presently are used,\nwere used, or are under development or consideration, whether or not completed, for use by ENERGIZER as of the date MR.\nMULCAHY’s employment terminates.\nc.\nFor purposes of this Agreement, to “compete” means to accept or begin employment with, advise, finance,\nown (partially or in whole), consult with, or accept an assignment through an employer with any third party world wide in a\nposition involving or relating to ENERGIZER business.\nd.\nThis Agreement does not preclude MR. MULCAHY from buying or selling shares of stock in any company\nthat is publicly listed and traded in any stock exchange or over-the-counter market. Provided, however, that MR. MULCAHY\nmay not use Confidential Information to engage in, or induce others to engage in, insider trading as prohibited by federal and\nstate securities laws.\nMR. MULCAHY acknowledges and agrees that the foregoing restrictions are reasonable and necessary for the protection of the\ngoodwill and business of ENERGIZER and are enforceable in view of, among other things; (i) the narrow range of activities\nprohibited, (ii) the national and international markets in which ENERGIZER operates, (iii) the Confidential Information to which MR.\nMULCAHY had access during his employment, and (iv) MR. MULCAHY’s background and qualifications are such that the restrictions\nwill not impose an undue hardship on MR. MULCAHY nor unreasonably interfere with MR. MULCAHY’s ability to earn a livelihood.\nThe parties hereby acknowledge that the nature of the business conducted by ENERGIZER and the position of ENERGIZER in the\nbattery and wet-shave industry mandate the foregoing non-competition restriction for a substantial duration in order to protect and\npreserve the competitive advantage and goodwill of ENERGIZER.\n3.\nNon-Solicitation.\nFor the duration of the Non-Compete Period, MR. MULCAHY shall not (i)\ninduce or attempt to induce any employee of ENERGIZER to leave the employ of ENERGIZER or in any way interfere with the\nrelationship between ENERGIZER and its employees or (ii) induce or attempt to induce any customer, supplier, distributor, broker, or\nother business relation of ENERGIZER to cease doing business with ENERGIZER, or in any way interfere with the relationship\nbetween any customer, supplier, distributor, broker or other business relation and ENERGIZER.\n4.\nConfidentiality of Information.\nMR. MULCAHY acknowledges that the information, observations and data relating to the formulation, processing,\nmanufacturing, sale and marketing of ENERGIZER's batteries, battery related products, and wet-shave products obtained by MR.\nMULCAHY during the course of MR. MULCAHY’s employment with ENERGIZER (the "Confidential Information") are confidential and the\nexclusive property of ENERGIZER. MR . MULCAHY agrees that he will not disclose to any unauthorized persons or use for MR.\nMULCAHY’s own account or for the benefit of any third party (other than ENERGIZER) any of such Confidential Information without\nENERGIZER’s prior written consent, unless and to the extent that such Confidential Information becomes generally known to, and available\nfor use by, the public other than as a result of MR. MULCAHY’s acts or failure to act.\nFor purposes of this Agreement, “Confidential Information” means all information with respect to the conduct or details of the\nbusiness and operations of ENERGIZER, including but not limited to current and planned information systems; the names, addresses or\nparticular desires or needs of its customers; the bounds of its markets; the prices charged for its services or products; its market share;\nmarketing strategies and promotional efforts in any market; product development, manufacturing processes, and research and development\nprojects; formulas, inventions and compilations of information, records or specifications; future product or market developments, financial\ninformation, information regarding suppliers, and costs of raw materials and other supplies; financing programs, overhead distribution and\nother expenses; conversion costs; contemplated, pending, or completed acquisitions; or personnel. MR. MULCAHY understands and\nagrees that such “Confidential Information” is important, material and confidential, and that disclosure would gravely affect the successful\nconduct of ENERGIZER’s businesses. The obligation to protect Confidential Information is on-going and does not expire upon the\ntermination of the parties’ contractual relationship.\n5.\nSpecific Performance. MR. MULCAHY acknowledges that irreparable injury will be caused to ENERGIZER by\nany breach or threatened breach of any of the provisions of paragraphs 2 through 4 and MR. MULCAHY therefore agrees that, in the event\nof any breach or threatened breach, ENERGIZER, in addition to all of the rights and remedies at law or in equity as may exist in its favor,\nshall have the right, in a court of law or equity having jurisdiction, to enforce the specific performance of the foregoing provisions. In the\nevent of an action in a court of law or equity to enforce any provision of this Agreement, MR. MULCAHY shall be responsible for all\nexpenses incurred by ENERGIZER in connection therewith, including, but not limited to, ENERGIZER’s reasonable attorney’s fees and\ncosts.\n6.\nReasonableness of Restrictions. MR . MULCAHY has carefully read and considered the provisions of paragraphs\n2, 3, and 4 hereof, and having done so, agrees that the restrictions set forth in such paragraphs (including, but not limited to, the time period\nof the restriction set forth in paragraph 2 hereof) are fair and reasonable and required for the protection of the interests of ENERGIZER, its\nofficers, directors, and other employees.\n7.\nWaiver. The failure by ENERGIZER to enforce at any time any of the provisions hereof or to require at any time\nperformance by MR. MULCAHY of any provisions hereof, shall in no way be construed to be a release of MR. MULCAHY or waiver of such\nprovisions or to affect the validity of this Agreement or any part hereof, or the right of ENERGIZER thereafter to enforce every such\nprovision in accordance with the terms of this Agreement.\n8.\nSavings and Severability Clause.\n(a) Nothing contained in this Agreement shall be construed to require the commission of any act contrary to law or to be\ncontrary to law, and whenever there is any conflict between any provision of this Agreement and any present or future statute, law,\ngovernment regulation or ordinance contrary to which the parties have no legal right to contract, the latter shall prevail, but in such event the\nprovisions of this Agreement affected shall be curtailed and restricted only to the extent necessary to bring them within legal requirements.\n(b)\nIf any provision of the covenants and agreements hereof above shall be held invalid or unenforceable\nbecause of the scope of the territory or the actions thereby restricted, or the period of time within which such covenant or agreement is\noperative, or for any other reason, it is the intent of the parties hereto that such provision shall be construed by limiting and reducing it, or, if\nnecessary eliminating it so that the provisions hereof shall be valid and enforceable to the extent compatible with applicable law as\ndetermined by a court of competent jurisdiction.\n9.\nBurden and Benefit. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and\ntheir legal representatives, successors, and permitted assigns.\n10.\nGoverning Law. All questions pertaining to the validity, construction, execution, and performance of this\nAgreement shall be construed in accordance with, and be governed by, the laws of the State of Missouri, without giving effect to the choice\nof law principles thereof.\n11.\nEnergizer Defined. For purposes of this Agreement, the term “ENERGIZER” as used herein shall include\nEnergizer Holdings, Inc.,\nEveready Battery Company, Inc.,\nSchick Manufacturing, Inc.,\nall subsidiary and affiliated companies,\npredecessors, and successors of the aforementioned, and all officers, directors, agents, and employees of any of the aforementioned.\n12.\nRestricted Stock Equivalent Award\n(a) Grant. In exchange for signing this Agreement, MR. MULCAHY will receive a grant of 10,000 restricted common stock\nequivalents (“Equivalents”) effective as of his termination date. This grant shall be pursuant to, and subject to the terms of, the Energizer\nHoldings, Inc. 2000 Incentive Stock Plan (“the Plan”).\n(b) Vesting and Payment. All restricted stock granted pursuant to this Agreement will vest January 25, 2010. At such time, each\nvested Equivalent will convert into one share of ENERGIZER’s $.01 par value Common Stock, which will be issued to MR. MULCAHY.\n(c) Dividends. At the time of payment of shares of Common Stock to MR. MULCAHY, as described in (b) above, MR. MULCAHY will\nalso receive an additional cash payment equal to the amount of dividends, if any, which would have been paid on the shares of Common\nStock issued to him if MR. MULCAHY had actually acquired those shares on the date of crediting of his Equivalents. No interest shall be\nincluded in the calculation of such additional cash payment.\n(d) Forfeiture. All unvested unrestricted stock equivalents credited to MR. MULCAHY will be forfeited upon a determination by the\nBoard of Directors of Energizer Holdings, Inc. that MR. MULCAHY has violated any provision of paragraph 2, 3, or 4 hereof.\n(e) Acceleration. Notwithstanding anything in (b) above, all Equivalents credited to MR. MULCAHY will immediately vest, convert to\nshares of Common Stock, and be paid to MR. MULCAHY, his designated beneficiary, or his legal representative, in accordance with the\nterms of the Plan, in the event of:\n(i)\nMR. MULCAHY’s death;\n(ii)\na declaration of MR. MULCAHY’s total and permanent disability; or\n(iii)\na Change of Control of ENERGIZER, which for purposes of this Agreement shall be deemed to occur\nwhen (a) a person, as defined under the U.S. securities laws, acquires beneficial ownership of more than fifty percent (50%) of the\noutstanding voting securities of ENERGIZER; or (b) the directors of ENERGIZER immediately before a business combination between\nENERGIZER and another entity, or a proxy contest for the election of directors, shall, as a result thereof, cease to constitute a majority of\nthe Board of Directors of Energizer Holdings, Inc. or any successor corporation. Notwithstanding the foregoing, however, a Change of\nControl which is approved in advance by a majority of the Board of Directors of Energizer Holdings, Inc. shall not trigger acceleration as\ndescribed in this paragraph 12(e)(iii).\n13.\nNotices. Any notices necessary or required to be given under this Agreement shall be sufficiently given if in\nwriting, and personally delivered or mailed by registered or certified mail, return receipt requested, postage prepaid, to the last known\naddresses of the parties hereto, or to such other address or addresses as any of the parties shall have specified in writing to the other party\nhereto.\n14.\nConsent to Advise Third Parties. MR . MULCAHY agrees ENERGIZER may advise any third party that\nENERGIZER deems necessary of the existence of this Agreement and of its terms. MR. MULCAHY agrees that ENERGIZER shall have no\nliability for so notifying any third party and hereby irrevocably waives any right to assert any such liability in the future.\n15.\nEntire Agreement. This Agreement constitutes the entire agreement of the parties hereto with respect to the\nmatters contained herein, and no modification, amendment, or waiver of any of the provision of this Agreement shall be effective unless in\nwriting and signed by all parties hereto. This Agreement constitutes the only agreement between the parties hereto with respect to the\nmatters herein contained.\n16.\nModifications. No change or modification of this Agreement shall be valid unless the same is in writing and\nsigned by all the parties hereto. No waiver of any provision of this Agreement shall be valid unless in writing and signed by the party against\nwhom it is sought to be enforced.\n17.\nEffect of MR. MULCAHY’s Signature. By the signing of this Agreement, MR. MULCAHY signifies that MR.\nMULCAHY has fully read, completely understands, and voluntarily agrees with this Agreement consisting of six (6) pages and seventeen\n(17) paragraphs and knowingly and voluntarily accepts all of its terms and conditions.\nIN WITNESS WHEREOF, ENERGIZER and MR. MULCAHY have duly executed this Agreement as of the date first above written.\nENERGIZER HOLINGS, INC.\nJ. PATRICK\nMULCAHY\nBy:\n___________________________\n___________________________\nPeter J. Conrad\nVice President\nHuman Resources\nDate:___________________________\nDate:______________________\nWitness:____________________\nDate:______________________	EX-10.3 6 exhibit10c.htm NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.3\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION AND NON-DISCLOSURE AGREEMENT (“Agreement”) is made as of the __ day of\n, 2005, by and between ENERGIZER HOLDINGS, INC., (hereinafter referred to as “ENERGIZER” and as defined in\nParagraph 11) and J. PATRICK MULCAHY (hereinafter referred to as “MR. MULCAHY").\nWHEREAS, MR. MULCAHY is an employee of ENERGIZER in a key leadership and strategic position;\nWHEREAS, ENERGIZER and MR. MULCAHY acknowledge that, in MR. MULCAHY’s capacity as an employee of ENERGIZER,\nMR. MULCAHY did contribute to and/or receive Confidential Information, and MR. MULCAHY acknowledges that ENERGIZER will suffer\nirreparable harm if MR. MULCARY, after having developed and/or created and/or becoming familiar with any such Confidential Information,\nmakes any unauthorized disclosure or communication of such Confidential Information to any third party or makes any use of such\nConfidential Information wrongfully or in competition with ENERGIZER,;\nWHEREAS, MR. MULCAHY has indicated his interest in retiring; and\nWHEREAS, ENERGIZER desires to receive from MR. MULCAHY a covenant not to engage (either directly or indirectly) in\ncompetition with, or to solicit any client or account of, ENERGIZER; and\nWHEREAS, ENERGIZER desires to receive from MR. MULCAHY a covenant not to disclose certain information relating to\nENERGIZER'’s business; and\nWHEREAS, ENERGIZER and MR. MULCAHY desire to confirm the terms and conditions of their agreements and understandings.\nNOW, THEREFORE, in consideration of the foregoing, the mutual promises herein contained, and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, and the parties hereto agree as follows:\n1. Covenants Not to Compete or Disclose. MR. MULCAHY acknowledges that the services rendered to ENERGIZER in the\naforesaid capacity are of a special character which have a unique value to ENERGIZER, the loss of which cannot be adequately\ncompensated by damages in an action of law. MR. MULCAHY agrees that by virtue of his employment, he has gained a special and unique\nunderstanding of ENERGIZER’s business in the formulation, processing, manufacturing, sale, and marketing of ENERGIZER'’s battery and\nbattery related products and ENERGIZER’s wet-shave products, as well as other products formulated, processed, manufactured, sold, or\nmarketed by ENERGIZER during the tenure of MR. MULCAHY’s employment. MR. MULCAHY at all times recognizes and respects the\nadvantageous business relationship which exists between ENERGIZER and present and potential customers who have been made aware\nof the products and services of ENERGIZER. MR. MULCAHY makes the covenants contained in this Agreement in view of (i) the unique\nvalue of the services of MR. MULCAHY for which ENERGIZER has employed MR. MULCAHY; (ii) the Confidential Information obtained by\nor disclosed to MR. MULCAHY as an employee of ENERGIZER; and (iii) ENERGIZER’s agreement to provide MR. MULCAHY with\nconsideration as provided herein.\n2. Non-Competition.\na. MR. MULCAHY agrees that for a period of five (5) years after termination of MR. MULCAHY’s employment\n-- i.e., from January 25, 2005 through January 25, 2010 -- (“the Non-Compete Period”), MR. MULCAHY will not compete\nagainst ENERGIZER in ENERGIZER business.\nb. For purposes of this Agreement, “ENERGIZER business” shall mean any of the following business\nactivities: all aspects of manufacturing, marketing, distributing, consulting with regard to, and/or operating a facility for the\nmanufacturing, processing, marketing, or distribution of batteries, lighting products, rechargeable batteries, related battery and\nlighting products, and wet-shave products. “ENERGIZER business” includes products and/or methods that presently are used,\nwere used, or are under development or consideration, whether or not completed, for use by ENERGIZER as of the date MR.\nMULCAHY’s employment terminates.\nC. For purposes of this Agreement, to “compete” means to accept or begin employment with, advise, finance,\nown (partially or in whole), consult with, or accept an assignment through an employer with any third party world wide in a\nposition involving or relating to ENERGIZER business.\nd. This Agreement does not preclude MR. MULCAHY from buying or selling shares of stock in any company\nthat is publicly listed and traded in any stock exchange or over-the-counter market. Provided, however, that MR. MULCAHY\nmay not use Confidential Information to engage in, or induce others to engage in, insider trading as prohibited by federal and\nstate securities laws.\nMR. MULCAHY acknowledges and agrees that the foregoing restrictions are reasonable and necessary for the protection of the\ngoodwill and business of ENERGIZER and are enforceable in view of, among other things; (i) the narrow range of activities\nprohibited, (ii) the national and international markets in which ENERGIZER operates, (iii) the Confidential Information to which MR.\nMULCAHY had access during his employment, and (iv) MR. MULCAHY’s background and qualifications are such that the restrictions\nwill not impose an undue hardship on MR. MULCAHY nor unreasonably interfere with MR. MULCAHY’s ability to earn a livelihood.\nThe parties hereby acknowledge that the nature of the business conducted by ENERGIZER and the position of ENERGIZER in the\nbattery and wet-shave industry mandate the foregoing non-competition restriction for a substantial duration in order to protect and\npreserve the competitive advantage and goodwill of ENERGIZER.\n3. Non-Solicitation. For the duration of the Non-Compete Period, MR. MULCAHY shall not (i)\ninduce or attempt to induce any employee of ENERGIZER to leave the employ of ENERGIZER or in any way interfere with the\nrelationship between ENERGIZER and its employees or (ii) induce or attempt to induce any customer, supplier, distributor, broker, or\nother business relation of ENERGIZER to cease doing business with ENERGIZER, or in any way interfere with the relationship\nbetween any customer, supplier, distributor, broker or other business relation and ENERGIZER.\n4, Confidentiality of Information.\nMR. MULCAHY acknowledges that the information, observations and data relating to the formulation, processing,\nmanufacturing, sale and marketing of ENERGIZER's batteries, battery related products, and wet-shave products obtained by MR.\nMULCAHY during the course of MR. MULCAHY’s employment with ENERGIZER (the "Confidential Information") are confidential and the\nexclusive property of ENERGIZER. MR. MULCAHY agrees that he will not disclose to any unauthorized persons or use for MR.\nMULCAHY’s own account or for the benefit of any third party (other than ENERGIZER) any of such Confidential Information without\nENERGIZER’s prior written consent, unless and to the extent that such Confidential Information becomes generally known to, and available\nfor use by, the public other than as a result of MR. MULCAHY’s acts or failure to act.\nFor purposes of this Agreement, “Confidential Information” means all information with respect to the conduct or details of the\nbusiness and operations of ENERGIZER, including but not limited to current and planned information systems; the names, addresses or\nparticular desires or needs of its customers; the bounds of its markets; the prices charged for its services or products; its market share;\nmarketing strategies and promotional efforts in any market; product development, manufacturing processes, and research and development\nprojects; formulas, inventions and compilations of information, records or specifications; future product or market developments, financial\ninformation, information regarding suppliers, and costs of raw materials and other supplies; financing programs, overhead distribution and\nother expenses; conversion costs; contemplated, pending, or completed acquisitions; or personnel. MR. MULCAHY understands and\nagrees that such “Confidential Information” is important, material and confidential, and that disclosure would gravely affect the successful\nconduct of ENERGIZER’s businesses. The obligation to protect Confidential Information is on-going and does not expire upon the\ntermination of the parties’ contractual relationship.\n5. Specific Performance. MR. MULCAHY acknowledges that irreparable injury will be caused to ENERGIZER by\nany breach or threatened breach of any of the provisions of paragraphs 2 through 4 and MR. MULCAHY therefore agrees that, in the event\nof any breach or threatened breach, ENERGIZER, in addition to all of the rights and remedies at law or in equity as may exist in its favor,\nshall have the right, in a court of law or equity having jurisdiction, to enforce the specific performance of the foregoing provisions. In the\nevent of an action in a court of law or equity to enforce any provision of this Agreement, MR. MULCAHY shall be responsible for all\nexpenses incurred by ENERGIZER in connection therewith, including, but not limited to, ENERGIZER's reasonable attorney’s fees and\ncosts.\n6. Reasonableness of Restrictions. MR. MULCAHY has carefully read and considered the provisions of paragraphs\n2, 3, and 4 hereof, and having done so, agrees that the restrictions set forth in such paragraphs (including, but not limited to, the time period\nof the restriction set forth in paragraph 2 hereof) are fair and reasonable and required for the protection of the interests of ENERGIZER, its\nofficers, directors, and other employees.\n7. Waiver. The failure by ENERGIZER to enforce at any time any of the provisions hereof or to require at any time\nperformance by MR. MULCAHY of any provisions hereof, shall in no way be construed to be a release of MR. MULCAHY or waiver of such\nprovisions or to affect the validity of this Agreement or any part hereof, or the right of ENERGIZER thereafter to enforce every such\nprovision in accordance with the terms of this Agreement.\n8. Savings and Severability Clause.\n(a) Nothing contained in this Agreement shall be construed to require the commission of any act contrary to law or to be\ncontrary to law, and whenever there is any conflict between any provision of this Agreement and any present or future statute, law,\ngovernment regulation or ordinance contrary to which the parties have no legal right to contract, the latter shall prevail, but in such event the\nprovisions of this Agreement affected shall be curtailed and restricted only to the extent necessary to bring them within legal requirements.\n(b) If any provision of the covenants and agreements hereof above shall be held invalid or unenforceable\nbecause of the scope of the territory or the actions thereby restricted, or the period of time within which such covenant or agreement is\noperative, or for any other reason, it is the intent of the parties hereto that such provision shall be construed by limiting and reducing it, or, if\nnecessary eliminating it so that the provisions hereof shall be valid and enforceable to the extent compatible with applicable law as\ndetermined by a court of competent jurisdiction.\n9. Burden and Benefit. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and\ntheir legal representatives, successors, and permitted assigns.\n10. Governing Law. All questions pertaining to the validity, construction, execution, and performance of this\nAgreement shall be construed in accordance with, and be governed by, the laws of the State of Missouri, without giving effect to the choice\nof law principles thereof.\n11. Energizer Defined. For purposes of this Agreement, the term “ENERGIZER” as used herein shall include\nEnergizer Holdings, Inc., Eveready Battery Company, Inc., Schick Manufacturing, Inc., all subsidiary and affiliated companies,\npredecessors, and successors of the aforementioned, and all officers, directors, agents, and employees of any of the aforementioned.\n12. Restricted Stock Equivalent Award\n(@) Grant. In exchange for signing this Agreement, MR. MULCAHY will receive a grant of 10,000 restricted common stock\nequivalents (“Equivalents”) effective as of his termination date. This grant shall be pursuant to, and subject to the terms of, the Energizer\nHoldings, Inc. 2000 Incentive Stock Plan (“the Plan”).\n(b) Vesting and Payment. All restricted stock granted pursuant to this Agreement will vest January 25, 2010. At such time, each\nvested Equivalent will convert into one share of ENERGIZER’s $.01 par value Common Stock, which will be issued to MR. MULCAHY.\n(c) Dividends. At the time of payment of shares of Common Stock to MR. MULCAHY, as described in (b) above, MR. MULCAHY will\nalso receive an additional cash payment equal to the amount of dividends, if any, which would have been paid on the shares of Common\nStock issued to him if MR. MULCAHY had actually acquired those shares on the date of crediting of his Equivalents. No interest shall be\nincluded in the calculation of such additional cash payment.\n(d) Forfeiture. All unvested unrestricted stock equivalents credited to MR. MULCAHY will be forfeited upon a determination by the\nBoard of Directors of Energizer Holdings, Inc. that MR. MULCAHY has violated any provision of paragraph 2, 3, or 4 hereof.\n(e) Acceleration. Notwithstanding anything in (b) above, all Equivalents credited to MR. MULCAHY will immediately vest, convert to\nshares of Common Stock, and be paid to MR. MULCAHY, his designated beneficiary, or his legal representative, in accordance with the\nterms of the Plan, in the event of:\n® MR. MULCAHY’s death;\n(ii) a declaration of MR. MULCAHY's total and permanent disability; or\n(iii) a Change of Control of ENERGIZER, which for purposes of this Agreement shall be deemed to occur\nwhen (a) a person, as defined under the U.S. securities laws, acquires beneficial ownership of more than fifty percent (50%) of the\noutstanding voting securities of ENERGIZER; or (b) the directors of ENERGIZER immediately before a business combination between\nENERGIZER and another entity, or a proxy contest for the election of directors, shall, as a result thereof, cease to constitute a majority of\nthe Board of Directors of Energizer Holdings, Inc. or any successor corporation. Notwithstanding the foregoing, however, a Change of\nControl which is approved in advance by a majority of the Board of Directors of Energizer Holdings, Inc. shall not trigger acceleration as\ndescribed in this paragraph 12(e)(iii).\n13. Notices. Any notices necessary or required to be given under this Agreement shall be sufficiently given if in\nwriting, and personally delivered or mailed by registered or certified mail, return receipt requested, postage prepaid, to the last known\naddresses of the parties hereto, or to such other address or addresses as any of the parties shall have specified in writing to the other party\nhereto.\n14. Consent to Advise Third Parties. MR. MULCAHY agrees ENERGIZER may advise any third party that\nENERGIZER deems necessary of the existence of this Agreement and of its terms. MR. MULCAHY agrees that ENERGIZER shall have no\nliability for so notifying any third party and hereby irrevocably waives any right to assert any such liability in the future.\n15. Entire Agreement. This Agreement constitutes the entire agreement of the parties hereto with respect to the\nmatters contained herein, and no modification, amendment, or waiver of any of the provision of this Agreement shall be effective unless in\nwriting and signed by all parties hereto. This Agreement constitutes the only agreement between the parties hereto with respect to the\nmatters herein contained.\n16. Modifications. No change or modification of this Agreement shall be valid unless the same is in writing and\nsigned by all the parties hereto. No waiver of any provision of this Agreement shall be valid unless in writing and signed by the party against\nwhom it is sought to be enforced.\n17. Effect of MR. MULCAHY'’s Signature. By the signing of this Agreement, MR. MULCAHY signifies that MR.\nMULCAHY has fully read, completely understands, and voluntarily agrees with this Agreement consisting of six (6) pages and seventeen\n(17) paragraphs and knowingly and voluntarily accepts all of its terms and conditions.\nIN WITNESS WHEREOF, ENERGIZER and MR. MULCAHY have duly executed this Agreement as of the date first above written.\nENERGIZER HOLINGS, INC. J. PATRICK\nMULCAHY\nBy:\nPeter J. Conrad\nVice President\nHuman Resources\nDate: Date:\nWitness:\nDate:	EX-10.3 6 exhibit10c.htm NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.3\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION AND NON-DISCLOSURE AGREEMENT ("Agreement") is made as of the\nday of\n2005, by and between ENERGIZER HOLDINGS, INC., (hereinafter referred to as "ENERGIZER" and as defined in\nParagraph 11) and J. PATRICK MULCAHY (hereinafter referred to as "MR. MULCAHY").\nWHEREAS, MR. MULCAHY is an employee of ENERGIZER in a key leadership and strategic position;\nWHEREAS, ENERGIZER and MR. MULCAHY acknowledge that, in MR. MULCAHY'S capacity as an employee of ENERGIZER,\nMR. MULCAHY did contribute to and/or receive Confidential Information, and MR. MULCAHY acknowledges that ENERGIZER will suffer\nirreparable harm if MR. MULCAHY, after having developed and/or created and/or becoming familiar with any such Confidential Information,\nmakes any unauthorized disclosure or communication of such Confidential Information to any third party or makes any use of such\nConfidential Information wrongfully or in competition with ENERGIZER;\nWHEREAS, MR. MULCAHY has indicated his interest in retiring; and\nWHEREAS, ENERGIZER desires to receive from MR. MULCAHY a covenant not to engage (either directly or indirectly)\nin\ncompetition with, or to solicit any client or account of, ENERGIZER; and\nWHEREAS, ENERGIZER desires to receive from MR. MULCAHY a covenant not to disclose certain information relating to\nENERGIZER's business; and\nWHEREAS, ENERGIZER and MR. MULCAHY desire to confirm the terms and conditions of their agreements and understandings\nNOW, THEREFORE, in consideration of the foregoing, the mutual promises herein contained, and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, and the parties hereto agree as follows:\n1.\nCovenants Not to Compete or Disclose. MR. MULCAHY acknowledges that the services rendered to ENERGIZER in the\naforesaid capacity are of a special character which have a unique value to ENERGIZER, the loss of which cannot be adequately\ncompensated by damages in an action of law. MR. MULCAHY agrees that by virtue of his employment, he has gained a special and unique\nunderstanding of ENERGIZER's business in the formulation, processing, manufacturing, sale, and marketing of ENERGIZER's battery and\nbattery related products and ENERGIZER's wet-shave products, as wel as other products formulated, processed, manufactured, sold, or\nmarketed by ENERGIZER during the tenure of MR. MULCAHY's employment. MR. MULCAHY at all times recognizes and respects the\nadvantageous business relationship which exists between ENERGIZER and present and potential customers who have been made aware\nof the products and services of ENERGIZER. MR. MULCAHY makes the covenants contained in this Agreement in view of (i) the unique\nvalue of the services of MR. MULCAHY for which ENERGIZER has employed MR. MULCAHY; (ii) the Confidentia Information obtained by\nor disclosed to MR. MULCAHY as an employee of ENERGIZER; and (iii) ENERGIZER's agreement to provide MR. MULCAHY with\nconsideration as provided herein.\n2.\nNon-Competition.\na.\nMR. MULCAHY agrees that for a period of five (5) years after termination of MR. MULCAHY's employment\ni.e., from January 25, 2005 through January 25, 2010 ("the Non-Compete Period"), MR. MULCAHY will not compete\nagainst ENERGIZER in ENERGIZER business.\nb.\nFor purposes of this Agreement, "ENERGIZER business" shall mean any of the following business\nactivities: all aspects of manufacturing, marketing, distributing, consulting with regard to, and/or operating a facility for the\nmanufacturing, processing, marketing, or distribution of batteries, lighting products, rechargeable batteries, related battery and\nlighting products, and wet-shave products. "ENERGIZER business" includes products and/or methods that presently are used,\nwere used, or are under development or consideration, whether or not completed, for use by ENERGIZER as of the date MR.\nMULCAHY'S employment terminates.\nC.\nFor purposes of this Agreement, to "compete" means to accept or begin employment with, advise, finance,\nown (partially or in whole), consult with, or accept an assignment through an employer with any third party world wide in a\nposition involving or relating to ENERGIZER business.\nd.\nThis Agreement does not preclude MR. MULCAHY from buying or selling shares of stock in any company\nthat is publicly listed and traded in any stock exchange or over-the-counter market. Provided, however, that MR. MULCAHY\nmay not use Confidential Information to engage in, or induce others to engage in, insider trading as prohibited by federal and\nstate securities laws.\nMR.\nMULCAHY\nacknowledges\nand\nagrees\nthat\nthe\nforegoing\nrestrictions\nare\nreasonable\nand\nnecessary\nfor\nthe\nprotection\nof\nthe\ngoodwill and business of ENERGIZER and are enforceable in view of, among other things; (i) the narrow range of activities\nprohibited, (ii) the national and internationa markets in which ENERGIZER operates, (iii) the Confidentia Information to which MR.\nMULCAHY\nhad\naccess\nduring\nhis\nemployment,\nand\n(iv)\nMR.\nMULCAHY'S\nbackground\nand\nqualifications\nare\nsuch\nthat\nthe\nrestrictions\nwil not impose an undue hardship on MR. MULCAHY nor unreasonably interfere with MR. MULCAHY'S ability to earn a livelihood.\nThe parties hereby acknowledge that the nature of the business conducted by ENERGIZER and the position of ENERGIZER in the\nbattery and wet-shave industry mandate the foregoing non-competition restriction for a substantial duration in order to protect\nand\npreserve the competitive advantage and goodwil of ENERGIZER.\n3.\nNon-Solicitation.\nFor the duration of the Non-Compete Period, MR. MULCAHY shal not\n(i)\ninduce or attempt to induce any employee of ENERGIZER to leave the employ of ENERGIZER or in any way interfere with the\nrelationship between ENERGIZER and its employees or (ii) induce or attempt to induce any customer, supplier, distributor, broker, or\nother business relation of ENERGIZER to cease doing business with ENERGIZER, or in any way interfere with the relationship\nbetween any customer, supplier, distributor, broker or other business relation and ENERGIZER.\n4.\nConfidentiality of Information.\nMR. MULCAHY acknowledges that the information, observations and data relating to the formulation, processing,\nmanufacturing, sale and marketing of ENERGIZER's batteries, battery related products, and wet-shave products obtained by MR.\nMULCAHY during the course of MR. MULCAHY'S employment with ENERGIZER (the "Confidential Information") are confidential and the\nexclusive\nproperty\nof\nENERGIZER.\nMR.\nMULCAHY\nagrees\nthat\nhe\nwill\nnot\ndisclose\nto\nany\nunauthorized\npersons\nor\nuse\nfor\nMR.\nMULCAHY'S own account or for the benefit of any third party (other than ENERGIZER) any of such Confidential Information without\nENERGIZER's prior written consent, unless and to the extent that such Confidential Information becomes generally known to, and available\nfor use by, the public other than as a result of MR. MULCAHY'S acts or failure to act.\nFor purposes of this Agreement, "Confidential Information" means all information with respect to the conduct or details of the\nbusiness and operations of ENERGIZER, including but not limited to current and planned information systems; the names, addresses or\nparticular desires or needs of its customers; the bounds of its markets; the prices charged for its services or products; its market share;\nmarketing strategies and promotional efforts in any market; product development, manufacturing processes, and research and development\nprojects;\nformulas, inventions and compilations of information, records or specifications; future product or market developments, financial\ninformation, information regarding suppliers, and costs of raw materials and other supplies; financing programs, overhead distribution and\nother expenses; conversion costs; contemplated, pending, or completed acquisitions; or personnel. MR. MULCAHY understands and\nagrees\nthat\nsuch\n"Confidential\nInformation"\nis\nimportant,\nmaterial\nand\nconfidential,\nand\nthat\ndisclosure\nwould\ngravely\naffect\nthe\nsuccessful\nconduct of ENERGIZER's businesses. The obligation to protect Confidential Information is on-going and does not expire upon the\ntermination of the parties' contractual relationship.\n5.\nSpecific Performance. MR. MULCAHY acknowledges that irreparable injury will be caused to ENERGIZER by\nany breach or threatened breach of any of the provisions of paragraphs 2 through 4 and MR. MULCAHY therefore agrees that, in the event\nof\nany\nbreach\nor\nthreatened\nbreach,\nENERGIZER,\nin\naddition\nto\nall\nof\nthe\nrights\nand\nremedies\nat\nlaw\nor\nin\nequity\nas\nmay\nexist\nin\nits\nfavor,\nshall have the right, in a court of law or equity having jurisdiction, to enforce the specific performance of the foregoing provisions. In the\nevent of an action in a court of law or equity to enforce any provision of this Agreement, MR. MULCAHY shall be responsible for\nall\nexpenses incurred by ENERGIZER in connection therewith, including, but not limited to, ENERGIZER's reasonable attorney's fees and\ncosts.\n6.\nReasonableness of Restrictions. MR. MULCAHY has carefully read and considered the provisions of paragraphs\n2, 3, and 4 hereof, and having done so, agrees that the restrictions set forth in such paragraphs (including, but not limited to, the time period\nof the restriction set forth in paragraph 2 hereof) are fair and reasonable and required for the protection of the interests of ENERGIZER, its\nofficers, directors, and other employees.\n7.\nWaiver. The failure by ENERGIZER to enforce at any time any of the provisions hereof or to require at any time\nperformance by MR. MULCAHY of any provisions hereof, shall in no way be construed to be a release of MR. MULCAHY or waiver of such\nprovisions or to affect the validity of this Agreement or any part hereof, or the right of ENERGIZER thereafter to enforce every such\nprovision in accordance with the terms of this Agreement.\n8.\nSavings and Severability Clause.\n(a) Nothing contained in this Agreement shall be construed to require the commission of any act contrary to law or to be\ncontrary to law, and whenever there is any conflict between any provision of this Agreement and any present or future statute, law,\ngovernment regulation or ordinance contrary to which the parties have no legal right to contract, the latter shall prevail, but in such event\nthe\nprovisions of this Agreement affected shall be curtailed and restricted only to the extent necessary to bring them within legal requirements.\n(b)\nIf any provision of the covenants and agreements hereof above shall be held invalid or unenforceable\nbecause of the scope of the territory or the actions thereby restricted, or the period of time within which such covenant or agreement is\noperative, or for any other reason, it is the intent of the parties hereto that such provision shall be construed by limiting and reducing it, or, if\nnecessary eliminating it so that the provisions hereof shall be valid and enforceable to the extent compatible with applicable law as\ndetermined by a court of competent jurisdiction\n9.\nBurden and Benefit. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and\ntheir legal representatives, successors, and permitted assigns.\n10.\nGoverning Law. All questions pertaining to the validity, construction, execution, and performance of this\nAgreement shall be construed in accordance with, and be governed by, the laws of the State of Missouri, without giving effect to the choice\nof law principles thereof.\n11\nEnergizer Defined. For purposes of this Agreement, the term "ENERGIZER" as used herein shall include\nEnergizer Holdings, Inc., Eveready Battery Company, Inc., Schick Manufacturing, Inc., all subsidiary and affiliated companies,\npredecessors, and successors of the aforementioned, and all officers, directors, agents, and employees of any of the aforementioned.\n12.\nRestricted Stock Equivalent Award\n(a) Grant. In exchange for signing this Agreement, MR. MULCAHY will receive a grant of 10,000 restricted common stock\nequivalents ("Equivalents") effective as of his termination date. This grant shall be pursuant to, and subject to the terms of, the Energizer\nHoldings, Inc. 2000 Incentive Stock Plan ("the Plan").\n(b) Vesting and Payment. All restricted stock granted pursuant to this Agreement will vest January 25, 2010. At such time, each\nvested Equivalent wil convert into one share of ENERGIZER's $.01 par value Common Stock, which will be issued to MR. MULCAHY.\n(c) Dividends. At the time of payment of shares of Common Stock to MR. MULCAHY, as described in (b) above, MR. MULCAHY will\nalso receive an additional cash payment equal to the amount of dividends, if any, which would have been paid on the shares of Common\nStock issued to him if MR. MULCAHY had actually acquired those shares on the date of crediting of his Equivalents. No interest shall be\nincluded in the calculation of such additional cash payment.\n(d) Forfeiture. All unvested unrestricted stock equivalents credited to MR. MULCAHY will be forfeited upon a determination by the\nBoard of Directors of Energizer Holdings, Inc. that MR. MULCAHY has violated any provision of paragraph 2, 3, or 4 hereof.\n(e) Acceleration. Notwithstanding anything in (b) above, all Equivalents credited to MR. MULCAHY will immediately vest, convert to\nshares of Common Stock, and be paid to MR. MULCAHY, his designated beneficiary, or his legal representative, in accordance with the\nterms of the Plan, in the event of:\n(i)\nMR. MULCAHY'S death;\n(ii)\na declaration of MR. MULCAHY'S total and permanent disability; or\n(iii)\na Change of Control of ENERGIZER, which for purposes of this Agreement shall be deemed to occur\nwhen (a) a person, as defined under the U.S. securities laws, acquires beneficial ownership of more than fifty percent (50%) of the\noutstanding\nvoting\nsecurities\nof\nENERGIZER;\nor\n(b)\nthe\ndirectors\nof\nENERGIZER\nimmediately\nbefore\na\nbusiness\ncombination\nbetween\nENERGIZER and another entity, or a proxy contest for the election of directors, shall, as a result thereof, cease to constitute a majority of\nthe Board of Directors of Energizer Holdings, Inc. or any successor corporation. Notwithstanding the foregoing, however, a Change\nof\nControl which is approved in advance by a majority of the Board of Directors of Energizer Holdings, Inc. shall not trigger acceleration as\ndescribed in this paragraph 12(e)(iii).\n13.\nNotices. Any notices necessary or required to be given under this Agreement shall be sufficiently\ngiven\nif\nin\nwriting, and personally delivered or mailed by registered or certified mail, return receipt requested, postage prepaid, to the last known\naddresses of the parties hereto, or to such other address or addresses as any of the parties shall have specified in writing to the other party\nhereto.\n14.\nConsent to Advise Third Parties. MR. MULCAHY agrees ENERGIZER may advise any third party that\nENERGIZER deems necessary of the existence of this Agreement and of its terms. MR. MULCAHY agrees that ENERGIZER shall have no\nliability for so notifying any third party and hereby irrevocably waives any right to assert any such liability in the future.\n15.\nEntire Agreement. This Agreement constitutes the entire agreement of the parties hereto with respect to the\nmatters contained herein, and no modification, amendment, or waiver of any of the provision of this Agreement shall be effective unless in\nwriting and signed by all parties hereto. This Agreement constitutes the only agreement between the parties hereto with respect to the\nmatters herein contained.\n16.\nModifications. No change or modification of this Agreement shall be valid unless the same is in writing\nand\nsigned by all the parties hereto. No waiver of any provision of this Agreement shall be valid unless in writing and signed by the party against\nwhom it is sought to be enforced.\n17.\nEffect of MR. MULCAHY'S Signature. By the signing of this Agreement, MR. MULCAHY signifies that MR.\nMULCAHY has fully read, completely understands, and voluntarily agrees with this Agreement consisting of six (6) pages and seventeen\n(17) paragraphs and knowingly and voluntarily accepts all of its terms and conditions.\nIN WITNESS WHEREOF, ENERGIZER and MR. MULCAHY have duly executed this Agreement as of the date first above written.\nENERGIZER HOLINGS, INC.\nJ. PATRICK\nMULCAHY\nBy:\nPeter J. Conrad\nVice President\nHuman Resources\nDate:\nDate:\nWitness:\nDate:	EX-10.3 6 exhibit10c.htm NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.3\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION AND NON-DISCLOSURE AGREEMENT (“Agreement”) is made as of the ___ day of\n_ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ , 2005, by and between ENERGIZER HOLDINGS, INC., (hereinafter referred to as “ENERGIZER” and as defined in\nParagraph 11) and J. PATRICK MULCAHY (hereinafter referred to as “MR. MULCAHY”).\nWHEREAS, MR. MULCAHY is an employee of ENERGIZER in a key leadership and strategic position;\nWHEREAS, ENERGIZER and MR. MULCAHY acknowledge that, in MR. MULCAHY’s capacity as an employee of ENERGIZER,\nMR. MULCAHY did contribute to and/or receive Confidential Information, and MR. MULCAHY acknowledges that ENERGIZER will suffer\nirreparable harm if MR. MULCAHY, after having developed and/or created and/or becoming familiar with any such Confidential Information,\nmakes any unauthorized disclosure or communication of such Confidential Information to any third party or makes any use of such\nConfidential Information wrongfully or in competition with ENERGIZER;\nWHEREAS, MR. MULCAHY has indicated his interest in retiring; and\nWHEREAS, ENERGIZER desires to receive from MR. MULCAHY a covenant not to engage (either directly or indirectly) in\ncompetition with, or to solicit any client or account of, ENERGIZER; and\nWHEREAS, ENERGIZER desires to receive from MR. MULCAHY a covenant not to disclose certain information relating to\nENERGIZER’s business; and\nWHEREAS, ENERGIZER and MR. MULCAHY desire to confirm the terms and conditions of their agreements and understandings.\nNOW, THEREFORE, in consideration of the foregoing, the mutual promises herein contained, and other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, and the parties hereto agree as follows:\n1. Covenants Not to Compete or Disclose. MR. MULCAHY acknowledges that the services rendered to ENERGIZER in the\naforesaid capacity are of a special character which have a unique value to ENERGIZER, the loss of which cannot be adequately\ncompensated by damages in an action of law. MR. MULCAHY agrees that by virtue of his employment, he has gained a special and unique\nunderstanding of ENERGIZER’s business in the formulation, processing, manufacturing, sale, and marketing of ENERGIZER’s battery and\nbattery related products and ENERGIZER’s wet-shave products, as well as other products formulated, processed, manufactured, sold, or\nmarketed by ENERGIZER during the tenure of MR. MULCAHY’s employment. MR . MULCAHY at all times recognizes and respects the\nadvantageous business relationship which exists between ENERGIZER and present and potential customers who have been made aware\nof the products and services of ENERGIZER. MR. MULCAHY makes the covenants contained in this Agreement in view of (i) the unique\nvalue of the services of MR. MULCAHY for which ENERGIZER has employed MR. MULCAHY; (ii) the Confidential Information obtained by\nor disclosed to MR. MULCAHY as an employee of ENERGIZER; and (iii) ENERGIZER’s agreement to provide MR. MULCAHY with\nconsideration as provided herein.\n2.\nNon-Competition.\na.\nMR. MULCAHY agrees that for a period of five (5) years after termination of MR. MULCAHY’s employment\n--\ni.e ., from January 25, 2005 through January 25, 2010 -- (“the Non-Compete Period”), MR. MULCAHY will not compete\nagainst ENERGIZER in ENERGIZER business.\nb.\nFor purposes of this Agreement, “ENERGIZER business” shall mean any of the following business\nactivities: all aspects of manufacturing, marketing, distributing, consulting with regard to, and/or operating a facility for the\nmanufacturing, processing, marketing, or distribution of batteries, lighting products, rechargeable batteries, related battery and\nlighting products, and wet-shave products. “ENERGIZER business” includes products and/or methods that presently are used,\nwere used, or are under development or consideration, whether or not completed, for use by ENERGIZER as of the date MR.\nMULCAHY’s employment terminates.\nc.\nFor purposes of this Agreement, to “compete” means to accept or begin employment with, advise, finance,\nown (partially or in whole), consult with, or accept an assignment through an employer with any third party world wide in a\nposition involving or relating to ENERGIZER business.\nd.\nThis Agreement does not preclude MR. MULCAHY from buying or selling shares of stock in any company\nthat is publicly listed and traded in any stock exchange or over-the-counter market. Provided, however, that MR. MULCAHY\nmay not use Confidential Information to engage in, or induce others to engage in, insider trading as prohibited by federal and\nstate securities laws.\nMR. MULCAHY acknowledges and agrees that the foregoing restrictions are reasonable and necessary for the protection of the\ngoodwill and business of ENERGIZER and are enforceable in view of, among other things; (i) the narrow range of activities\nprohibited, (ii) the national and international markets in which ENERGIZER operates, (iii) the Confidential Information to which MR.\nMULCAHY had access during his employment, and (iv) MR. MULCAHY’s background and qualifications are such that the restrictions\nwill not impose an undue hardship on MR. MULCAHY nor unreasonably interfere with MR. MULCAHY’s ability to earn a livelihood.\nThe parties hereby acknowledge that the nature of the business conducted by ENERGIZER and the position of ENERGIZER in the\nbattery and wet-shave industry mandate the foregoing non-competition restriction for a substantial duration in order to protect and\npreserve the competitive advantage and goodwill of ENERGIZER.\n3.\nNon-Solicitation.\nFor the duration of the Non-Compete Period, MR. MULCAHY shall not (i)\ninduce or attempt to induce any employee of ENERGIZER to leave the employ of ENERGIZER or in any way interfere with the\nrelationship between ENERGIZER and its employees or (ii) induce or attempt to induce any customer, supplier, distributor, broker, or\nother business relation of ENERGIZER to cease doing business with ENERGIZER, or in any way interfere with the relationship\nbetween any customer, supplier, distributor, broker or other business relation and ENERGIZER.\n4.\nConfidentiality of Information.\nMR. MULCAHY acknowledges that the information, observations and data relating to the formulation, processing,\nmanufacturing, sale and marketing of ENERGIZER's batteries, battery related products, and wet-shave products obtained by MR.\nMULCAHY during the course of MR. MULCAHY’s employment with ENERGIZER (the "Confidential Information") are confidential and the\nexclusive property of ENERGIZER. MR . MULCAHY agrees that he will not disclose to any unauthorized persons or use for MR.\nMULCAHY’s own account or for the benefit of any third party (other than ENERGIZER) any of such Confidential Information without\nENERGIZER’s prior written consent, unless and to the extent that such Confidential Information becomes generally known to, and available\nfor use by, the public other than as a result of MR. MULCAHY’s acts or failure to act.\nFor purposes of this Agreement, “Confidential Information” means all information with respect to the conduct or details of the\nbusiness and operations of ENERGIZER, including but not limited to current and planned information systems; the names, addresses or\nparticular desires or needs of its customers; the bounds of its markets; the prices charged for its services or products; its market share;\nmarketing strategies and promotional efforts in any market; product development, manufacturing processes, and research and development\nprojects; formulas, inventions and compilations of information, records or specifications; future product or market developments, financial\ninformation, information regarding suppliers, and costs of raw materials and other supplies; financing programs, overhead distribution and\nother expenses; conversion costs; contemplated, pending, or completed acquisitions; or personnel. MR. MULCAHY understands and\nagrees that such “Confidential Information” is important, material and confidential, and that disclosure would gravely affect the successful\nconduct of ENERGIZER’s businesses. The obligation to protect Confidential Information is on-going and does not expire upon the\ntermination of the parties’ contractual relationship.\n5.\nSpecific Performance. MR. MULCAHY acknowledges that irreparable injury will be caused to ENERGIZER by\nany breach or threatened breach of any of the provisions of paragraphs 2 through 4 and MR. MULCAHY therefore agrees that, in the event\nof any breach or threatened breach, ENERGIZER, in addition to all of the rights and remedies at law or in equity as may exist in its favor,\nshall have the right, in a court of law or equity having jurisdiction, to enforce the specific performance of the foregoing provisions. In the\nevent of an action in a court of law or equity to enforce any provision of this Agreement, MR. MULCAHY shall be responsible for all\nexpenses incurred by ENERGIZER in connection therewith, including, but not limited to, ENERGIZER’s reasonable attorney’s fees and\ncosts.\n6.\nReasonableness of Restrictions. MR . MULCAHY has carefully read and considered the provisions of paragraphs\n2, 3, and 4 hereof, and having done so, agrees that the restrictions set forth in such paragraphs (including, but not limited to, the time period\nof the restriction set forth in paragraph 2 hereof) are fair and reasonable and required for the protection of the interests of ENERGIZER, its\nofficers, directors, and other employees.\n7.\nWaiver. The failure by ENERGIZER to enforce at any time any of the provisions hereof or to require at any time\nperformance by MR. MULCAHY of any provisions hereof, shall in no way be construed to be a release of MR. MULCAHY or waiver of such\nprovisions or to affect the validity of this Agreement or any part hereof, or the right of ENERGIZER thereafter to enforce every such\nprovision in accordance with the terms of this Agreement.\n8.\nSavings and Severability Clause.\n(a) Nothing contained in this Agreement shall be construed to require the commission of any act contrary to law or to be\ncontrary to law, and whenever there is any conflict between any provision of this Agreement and any present or future statute, law,\ngovernment regulation or ordinance contrary to which the parties have no legal right to contract, the latter shall prevail, but in such event the\nprovisions of this Agreement affected shall be curtailed and restricted only to the extent necessary to bring them within legal requirements.\n(b)\nIf any provision of the covenants and agreements hereof above shall be held invalid or unenforceable\nbecause of the scope of the territory or the actions thereby restricted, or the period of time within which such covenant or agreement is\noperative, or for any other reason, it is the intent of the parties hereto that such provision shall be construed by limiting and reducing it, or, if\nnecessary eliminating it so that the provisions hereof shall be valid and enforceable to the extent compatible with applicable law as\ndetermined by a court of competent jurisdiction.\n9.\nBurden and Benefit. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and\ntheir legal representatives, successors, and permitted assigns.\n10.\nGoverning Law. All questions pertaining to the validity, construction, execution, and performance of this\nAgreement shall be construed in accordance with, and be governed by, the laws of the State of Missouri, without giving effect to the choice\nof law principles thereof.\n11.\nEnergizer Defined. For purposes of this Agreement, the term “ENERGIZER” as used herein shall include\nEnergizer Holdings, Inc.,\nEveready Battery Company, Inc.,\nSchick Manufacturing, Inc.,\nall subsidiary and affiliated companies,\npredecessors, and successors of the aforementioned, and all officers, directors, agents, and employees of any of the aforementioned.\n12.\nRestricted Stock Equivalent Award\n(a) Grant. In exchange for signing this Agreement, MR. MULCAHY will receive a grant of 10,000 restricted common stock\nequivalents (“Equivalents”) effective as of his termination date. This grant shall be pursuant to, and subject to the terms of, the Energizer\nHoldings, Inc. 2000 Incentive Stock Plan (“the Plan”).\n(b) Vesting and Payment. All restricted stock granted pursuant to this Agreement will vest January 25, 2010. At such time, each\nvested Equivalent will convert into one share of ENERGIZER’s $.01 par value Common Stock, which will be issued to MR. MULCAHY.\n(c) Dividends. At the time of payment of shares of Common Stock to MR. MULCAHY, as described in (b) above, MR. MULCAHY will\nalso receive an additional cash payment equal to the amount of dividends, if any, which would have been paid on the shares of Common\nStock issued to him if MR. MULCAHY had actually acquired those shares on the date of crediting of his Equivalents. No interest shall be\nincluded in the calculation of such additional cash payment.\n(d) Forfeiture. All unvested unrestricted stock equivalents credited to MR. MULCAHY will be forfeited upon a determination by the\nBoard of Directors of Energizer Holdings, Inc. that MR. MULCAHY has violated any provision of paragraph 2, 3, or 4 hereof.\n(e) Acceleration. Notwithstanding anything in (b) above, all Equivalents credited to MR. MULCAHY will immediately vest, convert to\nshares of Common Stock, and be paid to MR. MULCAHY, his designated beneficiary, or his legal representative, in accordance with the\nterms of the Plan, in the event of:\n(i)\nMR. MULCAHY’s death;\n(ii)\na declaration of MR. MULCAHY’s total and permanent disability; or\n(iii)\na Change of Control of ENERGIZER, which for purposes of this Agreement shall be deemed to occur\nwhen (a) a person, as defined under the U.S. securities laws, acquires beneficial ownership of more than fifty percent (50%) of the\noutstanding voting securities of ENERGIZER; or (b) the directors of ENERGIZER immediately before a business combination between\nENERGIZER and another entity, or a proxy contest for the election of directors, shall, as a result thereof, cease to constitute a majority of\nthe Board of Directors of Energizer Holdings, Inc. or any successor corporation. Notwithstanding the foregoing, however, a Change of\nControl which is approved in advance by a majority of the Board of Directors of Energizer Holdings, Inc. shall not trigger acceleration as\ndescribed in this paragraph 12(e)(iii).\n13.\nNotices. Any notices necessary or required to be given under this Agreement shall be sufficiently given if in\nwriting, and personally delivered or mailed by registered or certified mail, return receipt requested, postage prepaid, to the last known\naddresses of the parties hereto, or to such other address or addresses as any of the parties shall have specified in writing to the other party\nhereto.\n14.\nConsent to Advise Third Parties. MR . MULCAHY agrees ENERGIZER may advise any third party that\nENERGIZER deems necessary of the existence of this Agreement and of its terms. MR. MULCAHY agrees that ENERGIZER shall have no\nliability for so notifying any third party and hereby irrevocably waives any right to assert any such liability in the future.\n15.\nEntire Agreement. This Agreement constitutes the entire agreement of the parties hereto with respect to the\nmatters contained herein, and no modification, amendment, or waiver of any of the provision of this Agreement shall be effective unless in\nwriting and signed by all parties hereto. This Agreement constitutes the only agreement between the parties hereto with respect to the\nmatters herein contained.\n16.\nModifications. No change or modification of this Agreement shall be valid unless the same is in writing and\nsigned by all the parties hereto. No waiver of any provision of this Agreement shall be valid unless in writing and signed by the party against\nwhom it is sought to be enforced.\n17.\nEffect of MR. MULCAHY’s Signature. By the signing of this Agreement, MR. MULCAHY signifies that MR.\nMULCAHY has fully read, completely understands, and voluntarily agrees with this Agreement consisting of six (6) pages and seventeen\n(17) paragraphs and knowingly and voluntarily accepts all of its terms and conditions.\nIN WITNESS WHEREOF, ENERGIZER and MR. MULCAHY have duly executed this Agreement as of the date first above written.\nENERGIZER HOLINGS, INC.\nJ. PATRICK\nMULCAHY\nBy:\n___________________________\n___________________________\nPeter J. Conrad\nVice President\nHuman Resources\nDate:___________________________\nDate:______________________\nWitness:____________________\nDate:______________________
+7082d6dc98f0275c310f264c481abaf7.pdf	effective_date jurisdiction party term	EX-10.2 3 vnb30097818-ex102.htm NON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION\nAGREEMENT\nExhibit 10.2\nNon-Disclosure, Non-Solicitation and Non-Competition Agreement\nDate: March 2, 2017\nName: Glenn W. Rust\nVirginia National Bank and its affiliates, including Virginia National Bankshares Corporation and VNBTrust, N.A., also known as VNB Wealth\nManagement (together “VNB”), has provided you with the continued opportunity to be a key member of VNB’s executive management team. As a\ncondition of your employment opportunity with VNB, you must sign and return this Non-Disclosure, Non-Solicitation and Non-Competition\nAgreement (this “Agreement”).\nIn consideration of this employment opportunity, your compensation, including your base salary, potential incentive compensation, Management\nContinuity Agreement with VNB, benefits, training, personal and professional growth potential, the opportunity to play an integral role in the\ncontinued growth and development of a community-based financial services organization, and other good and valuable consideration, the adequacy\nand receipt of which are hereby acknowledged, with your signature you acknowledge and agree to the following:\n1. Acknowledgement of VNB’s Interest.\nYou acknowledge that VNB has invested substantial time, money and resources in the development and retention of its customers, accounts,\nbusiness and employees. You acknowledge and agree that any and all "goodwill" associated with any customer, account, business or employee of\nVNB belongs exclusively to VNB. You further acknowledge and agree that during the course of your performing services for VNB, VNB employees\nand/or customers may furnish, disclose or otherwise make available to you confidential and proprietary information and that VNB may provide you\nwith unique and specialized training. You also acknowledge that (a) such relationships, information and training have been, and will continue to be,\ndeveloped by VNB through the expenditure by VNB of substantial time, effort and money, (b) all such relationships, information and training are\nvaluable to VNB and (c) use of such relationships, information and training by you other than for VNB’s benefit will cause substantial harm to VNB.\n2. Non-Disclosure of Confidential and Proprietary Information.\nVNB has developed and continues to develop, use and maintain confidential and proprietary information, which may include competitive\ninformation and trade secrets, concerning VNB’s business, customers and employees, including, without limitation, the following: identity and other\ninformation related to present and prospective customers; business organization and structure; business and marketing plans and strategies; training\nprograms and materials; product information; personnel information including employees' capabilities, salaries, benefits, and any other terms of\nemployment; policies, standards and procedures; current and prospective vendors and contracts; and profit, loss and other financial information\n(collectively, the "Confidential Information"). You acknowledge that during your employment with VNB you will have direct and indirect access to,\nand knowledge of, the Confidential Information, and you agree to take all reasonable measures to protect the confidentiality of such Confidential\nInformation. You agree to use the Confidential Information, both during and after your employment, for the sole benefit of VNB.\nYou agree and attest that any and all such Confidential Information is, and shall remain, the sole property of VNB. You agree that you will hold such\nConfidential Information in the strictest confidence and that you will not (except as required in the course of your employment with VNB, as\nrequired by any court, supervisory authority or administrative agency, or as otherwise required by applicable law) disclose, either directly or\nindirectly, any Confidential Information to any other business, firm, entity or person, unless such information\nhas become a matter of public knowledge at the time of such disclosure. You further agree that you will not remove or retain any Confidential\nInformation regardless of how it is maintained. You agree to return to VNB any and all copies of the Confidential Information that you have, or have\nhad, in your possession immediately upon termination of employment, whether voluntary or involuntary or upon any request by VNB. The terms of\nthis paragraph are in addition to, and not in lieu of, any legal or other contractual obligations that you may have, or believe you may have, relating to\nthe protection of the Confidential Information or your employment. The terms of this paragraph shall survive indefinitely the termination of this\nAgreement and/or your employment with VNB.\n3. Non-Solicitation.\na. You agree that both during the course of your employment, and for a period of twelve (12) months following the voluntary or involuntary\ntermination of your employment, you will not, directly or indirectly, on your own behalf or in the service of or on behalf of any other person or entity\nother than VNB, solicit, divert or appropriate, or attempt to solicit, divert or appropriate, any business from any VNB customers or prospective\ncustomers with whom/which you have had contact during the course of your employment or about whom/which you have obtained Confidential\nInformation during the course of your employment.\nb. You agree that both during the course of your employment, and for a period of twelve (12) months following the voluntary or involuntary\ntermination of your employment, you will not (i) enter into, and will not participate in, any plan or arrangement to cause any employee of VNB to\nterminate his or her employment with VNB, or (ii) directly or indirectly solicit any VNB employee for employment in connection with any business\ninitiated by you or any other person, firm, company or corporation.\n4. Non-Competition.\nYou agree that both during the course of your employment, and for a period of three (3) months following the voluntary or involuntary termination\nof your employment, you will not accept employment or otherwise engage in any activity or work, that is in any way competitive with the business\nof VNB in which you are significantly involved at any time during your employment with VNB in a geographic area within a 30 mile radius of your\nthen current office location (or, if applicable, the office location at which you were primarily working immediately prior to the termination of your\nemployment with VNB) or within a 10 mile radius of any other VNB location. For purposes of this Agreement, you acknowledge and agree that\nVNB and its affiliates are engaged in the financial services business which includes, without limitation, commercial and retailing banking and\nlending, treasury management, private banking, trust, investment/brokerage services, wealth management and funds management. You also\nacknowledge that VNB has strategic plans related to offering services such as leasing, brokerage, international and factoring, and that those services\nand businesses will be considered competitive with VNB under the terms of this Agreement to the extent that you are significantly involved in such\nservices or businesses during your employment with VNB.\n5. Enforcement of this Agreement.\nYou agree that the provisions outlined above are necessary and reasonable to protect the best interests of VNB, its customers, and its employees.\nFurther, you agree that in the event of your breach of any of the provisions of this Agreement, VNB would suffer substantial irreparable harm and\nthat monetary damages alone may not be sufficient to protect VNB adequately from such breach. In the event of a breach or threatened breach by\nyou of any of the provisions of this Agreement, in addition to such other remedies as VNB may have available at law, VNB shall be entitled to seek\nand obtain equitable relief, in the form of specific performance, or temporary, preliminary or permanent injunctive relief, or any other equitable\nremedy which then may be available. The seeking or granting of an injunction or other equitable remedy shall not affect VNB’s right to seek and\nobtain damages or other equitable relief on account of any such\nPage2of3\nactual or threatened breach. You agree to pay all reasonable costs and expenses incurred by VNB in enforcing the provisions of this Agreement,\nincluding VNB’s attorneys’ fees.\n6. Miscellaneous\na. You acknowledge that you will be an “at will” employee of VNB and that your employment may be terminated at any time, with or without cause,\nat the option of you or VNB. You also acknowledge that neither this Agreement nor any employee handbook or other document you may receive\ncreates any contractual rights contrary to the foregoing and that no representative or agent of Employer other than an Authorized Representative of\nVNB through a written, signed document has any authority to enter into any agreement for employment for any specified time period or to make any\nother agreement contrary to the foregoing. For purposes of this Agreement, an “Authorized Representative of VNB” shall mean either the Chairman\nof the Board, Chairman of the Compensation Committee, Chief Executive Officer, or President of VNB; provided, however, you may not sign on\nbehalf of VNB even if you hold one of the identified positions with VNB.\nb. This Agreement contains the entire understanding between you and VNB and supersedes any prior written or oral agreements with VNB. This\nAgreement shall not be modified or waived except by written instrument signed by you and an Authorized Representative of VNB.\nc. In the event that any provision of this Agreement shall be declared unenforceable or invalid, the remaining provisions shall continue to be valid\nand enforceable.\nd. This Agreement shall inure to the benefit of and be enforceable by VNB and/or VNB’s successors in interest, subsidiaries and affiliates.\ne. You acknowledge that this Agreement shall be governed and enforced in accordance with the laws of the Commonwealth of Virginia, without\nregard to conflicts of law principal. You agree that the state and federal courts located in the City of Charlottesville or the County of Albemarle shall\nbe the exclusive jurisdictions for the resolution of any disputes concerning this Agreement, and you agree to submit to the jurisdiction of those\ncourts.\nf. You acknowledge that you have had the opportunity to consult with an attorney prior to signing this Agreement.\nWith your signature, you attest to your understanding of the provisions outlined above and voluntarily agree to each of the terms of this Agreement.\n/s/ Glenn W. Rust\n(SEAL)\nSignature\nPrinted Name: Glenn W. Rust\nDate:\nMarch 2, 2017\nACCEPTED:\nVirginia National Bank\nBy /s/ Steven W. Blaine\nSteven W. Blaine\nChairman of VNB’s Compensation Committee\nDate: March 2, 2017\nPage3of3	EX-10.2 3 vnb30097818-ex102.htm NON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION\nAGREEMENT\nExhibit 10.2\nNon-Disclosure, Non-Solicitation and Non-Competition Agreement\nDate: March 2, 2017\nName: Glenn W. Rust\nVirginia National Bank and its affiliates, including Virginia National Bankshares Corporation and VNBTrust, N.A., also known as VNB Wealth\nManagement (together “VNB”), has provided you with the continued opportunity to be a key member of VNB’s executive management team. As a\ncondition of your employment opportunity with VNB, you must sign and return this Non-Disclosure, Non-Solicitation and Non-Competition\nAgreement (this “Agreement”).\nIn consideration of this employment opportunity, your compensation, including your base salary, potential incentive compensation, Management\nContinuity Agreement with VNB, benefits, training, personal and professional growth potential, the opportunity to play an integral role in the\ncontinued growth and development of a community-based financial services organization, and other good and valuable consideration, the adequacy\nand receipt of which are hereby acknowledged, with your signature you acknowledge and agree to the following:\n1. Acknowledgement of VNB’s Interest.\nYou acknowledge that VNB has invested substantial time, money and resources in the development and retention of its customers, accounts,\nbusiness and employees. You acknowledge and agree that any and all "goodwill" associated with any customer, account, business or employee of\nVNB belongs exclusively to VNB. You further acknowledge and agree that during the course of your performing services for VNB, VNB employees\nand/or customers may furnish, disclose or otherwise make available to you confidential and proprietary information and that VNB may provide you\nwith unique and specialized training. You also acknowledge that (a) such relationships, information and training have been, and will continue to be,\ndeveloped by VNB through the expenditure by VNB of substantial time, effort and money, (b) all such relationships, information and training are\nvaluable to VNB and (c) use of such relationships, information and training by you other than for VNB’s benefit will cause substantial harm to VNB.\n2. Non-Disclosure of Confidential and Proprietary Information.\nVNB has developed and continues to develop, use and maintain confidential and proprietary information, which may include competitive\ninformation and trade secrets, concerning VINB’s business, customers and employees, including, without limitation, the following: identity and other\ninformation related to present and prospective customers; business organization and structure; business and marketing plans and strategies; training\nprograms and materials; product information; personnel information including employees' capabilities, salaries, benefits, and any other terms of\nemployment; policies, standards and procedures; current and prospective vendors and contracts; and profit, loss and other financial information\n(collectively, the "Confidential Information"). You acknowledge that during your employment with VNB you will have direct and indirect access to,\nand knowledge of, the Confidential Information, and you agree to take all reasonable measures to protect the confidentiality of such Confidential\nInformation. You agree to use the Confidential Information, both during and after your employment, for the sole benefit of VNB.\nYou agree and attest that any and all such Confidential Information is, and shall remain, the sole property of VNB. You agree that you will hold such\nConfidential Information in the strictest confidence and that you will not (except as required in the course of your employment with VNB, as\nrequired by any court, supervisory authority or administrative agency, or as otherwise required by applicable law) disclose, either directly or\nindirectly, any Confidential Information to any other business, firm, entity or person, unless such information\nhas become a matter of public knowledge at the time of such disclosure. You further agree that you will not remove or retain any Confidential\nInformation regardless of how it is maintained. You agree to return to VNB any and all copies of the Confidential Information that you have, or have\nhad, in your possession immediately upon termination of employment, whether voluntary or involuntary or upon any request by VNB. The terms of\nthis paragraph are in addition to, and not in lieu of, any legal or other contractual obligations that you may have, or believe you may have, relating to\nthe protection of the Confidential Information or your employment. The terms of this paragraph shall survive indefinitely the termination of this\nAgreement and/or your employment with VNB.\n3. Non-Solicitation.\na. You agree that both during the course of your employment, and for a period of twelve (12) months following the voluntary or involuntary\ntermination of your employment, you will not, directly or indirectly, on your own behalf or in the service of or on behalf of any other person or entity\nother than VNB, solicit, divert or appropriate, or attempt to solicit, divert or appropriate, any business from any VNB customers or prospective\ncustomers with whom/which you have had contact during the course of your employment or about whom/which you have obtained Confidential\nInformation during the course of your employment.\nb. You agree that both during the course of your employment, and for a period of twelve (12) months following the voluntary or involuntary\ntermination of your employment, you will not (i) enter into, and will not participate in, any plan or arrangement to cause any employee of VNB to\nterminate his or her employment with VNB, or (ii) directly or indirectly solicit any VNB employee for employment in connection with any business\ninitiated by you or any other person, firm, company or corporation.\n4. Non-Competition.\nYou agree that both during the course of your employment, and for a period of three (3) months following the voluntary or involuntary termination\nof your employment, you will not accept employment or otherwise engage in any activity or work, that is in any way competitive with the business\nof VNB in which you are significantly involved at any time during your employment with VNB in a geographic area within a 30 mile radius of your\nthen current office location (or, if applicable, the office location at which you were primarily working immediately prior to the termination of your\nemployment with VNB) or within a 10 mile radius of any other VNB location. For purposes of this Agreement, you acknowledge and agree that\nVNB and its affiliates are engaged in the financial services business which includes, without limitation, commercial and retailing banking and\nlending, treasury management, private banking, trust, investment/brokerage services, wealth management and funds management. You also\nacknowledge that VNB has strategic plans related to offering services such as leasing, brokerage, international and factoring, and that those services\nand businesses will be considered competitive with VNB under the terms of this Agreement to the extent that you are significantly involved in such\nservices or businesses during your employment with VNB.\n5. Enforcement of this Agreement.\nYou agree that the provisions outlined above are necessary and reasonable to protect the best interests of VNB, its customers, and its employees.\nFurther, you agree that in the event of your breach of any of the provisions of this Agreement, VNB would suffer substantial irreparable harm and\nthat monetary damages alone may not be sufficient to protect VNB adequately from such breach. In the event of a breach or threatened breach by\nyou of any of the provisions of this Agreement, in addition to such other remedies as VNB may have available at law, VNB shall be entitled to seek\nand obtain equitable relief, in the form of specific performance, or temporary, preliminary or permanent injunctive relief, or any other equitable\nremedy which then may be available. The seeking or granting of an injunction or other equitable remedy shall not affect VNB’s right to seek and\nobtain damages or other equitable relief on account of any such\nPage 2 of 3\nactual or threatened breach. You agree to pay all reasonable costs and expenses incurred by VNB in enforcing the provisions of this Agreement,\nincluding VNB’s attorneys’ fees.\n6. Miscellaneous\na. You acknowledge that you will be an “at will” employee of VNB and that your employment may be terminated at any time, with or without cause,\nat the option of you or VNB. You also acknowledge that neither this Agreement nor any employee handbook or other document you may receive\ncreates any contractual rights contrary to the foregoing and that no representative or agent of Employer other than an Authorized Representative of\nVNB through a written, signed document has any authority to enter into any agreement for employment for any specified time period or to make any\nother agreement contrary to the foregoing. For purposes of this Agreement, an “Authorized Representative of VNB” shall mean either the Chairman\nof the Board, Chairman of the Compensation Committee, Chief Executive Officer, or President of VNB; provided, however, you may not sign on\nbehalf of VNB even if you hold one of the identified positions with VNB.\nb. This Agreement contains the entire understanding between you and VNB and supersedes any prior written or oral agreements with VNB. This\nAgreement shall not be modified or waived except by written instrument signed by you and an Authorized Representative of VNB.\nc. In the event that any provision of this Agreement shall be declared unenforceable or invalid, the remaining provisions shall continue to be valid\nand enforceable.\nd. This Agreement shall inure to the benefit of and be enforceable by VNB and/or VNB’s successors in interest, subsidiaries and affiliates.\ne. You acknowledge that this Agreement shall be governed and enforced in accordance with the laws of the Commonwealth of Virginia, without\nregard to conflicts of law principal. You agree that the state and federal courts located in the City of Charlottesville or the County of Albemarle shall\nbe the exclusive jurisdictions for the resolution of any disputes concerning this Agreement, and you agree to submit to the jurisdiction of those\ncourts.\nf. You acknowledge that you have had the opportunity to consult with an attorney prior to signing this Agreement.\nWith your signature, you attest to your understanding of the provisions outlined above and voluntarily agree to each of the terms of this Agreement.\n/s/ Glenn W. Rust (SEAL)\nSignature\nPrinted Name: Glenn W. Rust\nDate: March 2, 2017\nACCEPTED:\nVirginia National Bank\nBy  /s/ Steven W. Blaine\nSteven W. Blaine\nChairman of VNB’s Compensation Committee\nDate: March 2, 2017\nPage 3 of 3	EX-10.2 3 vnb30097818-ex102.htm NON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION\nAGREEMENT\nExhibit 10.2\nNon-Disclosure, Non-Solicitation and Non-Competition Agreement\nDate: March 2, 2017\nName: Glenn W. Rust\nVirginia National Bank and its affiliates, including Virginia National Bankshares Corporation and VNBTrust, N.A., also known as VNB Wealth\nManagement (together "VNB"), has provided you with the continued opportunity to be a key member of VNB's executive management team. As\na\ncondition\nof\nyour\nemployment\nopportunity\nwith\nVNB,\nyou\nmust\nsign\nand\nreturn\nthis\nNon-Disclosure,\nNon-Solicitation\nand\nNon-Competition\nAgreement (this "Agreement").\nIn consideration of this employment opportunity, your compensation, including your base salary, potential incentive compensation, Management\nContinuity Agreement with VNB, benefits, training, personal and professional growth potential, the opportunity to play an integral role in\nthe\ncontinued growth and development of a community-based financial services organization, and other good and valuable consideration, the adequacy\nand receipt of which are hereby acknowledged, with your signature you acknowledge and agree to the following:\n1. Acknowledgement of VNB's Interest.\nYou acknowledge that VNB has invested substantial time, money and resources in the development and retention of its customers, accounts,\nbusiness and employees. You acknowledge and agree that any and all "goodwill" associated with any customer, account, business or employee of\nVNB\nbelongs\nexclusively\nto\nVNB.\nYou\nfurther\nacknowledge\nand\nagree\nthat\nduring\nthe\ncourse\nof\nyour\nperforming\nservices\nfor\nVNB,\nVNB\nemployees\nand/or customers may furnish, disclose or otherwise make available to you confidential and proprietary information and that VNB may provide you\nwith unique and specialized training. You also acknowledge that (a) such relationships, information and training have been, and will continue to be,\ndeveloped by VNB through the expenditure by VNB of substantial time, effort and money, (b) all such relationships, information and training are\nvaluable to VNB and (c) use of such relationships, information and training by you other than for VNB's benefit will cause substantial harm to VNB.\n2. Non-Disclosure of Confidential and Proprietary Information.\nVNB has developed and continues to develop, use and maintain confidential and proprietary information, which may include competitive\ninformation and trade secrets, concerning VNB's business, customers and employees, including, without limitation, the following: identity and other\ninformation related to present and prospective customers; business organization and structure; business and marketing plans and strategies; training\nprograms and materials; product information; personnel information including employees' capabilities, salaries, benefits, and any other terms of\nemployment; policies, standards and procedures; current and prospective vendors and contracts; and profit, loss and other financial information\n(collectively, the "Confidential Information"). You acknowledge that during your employment with VNB you will have direct and indirect access to,\nand knowledge of, the Confidential Information, and you agree to take all reasonable measures to protect the confidentiality of such Confidentia\nInformation. You agree to use the Confidential Information, both during and after your employment, for the sole benefit of VNB.\nYou agree and attest that any and all such Confidentia Information is, and shall remain, the sole property of VNB. You agree that you will hold such\nConfidential Information in the strictest confidence and that you will not (except as required in the course of your employment with VNB, as\nrequired by any court, supervisory authority or administrative agency, or as otherwise required by applicable law) disclose, either directly\nor\nindirectly, any Confidential Information to any other business, firm, entity or person, unless such information\nhas become a matter of public knowledge at the time of such disclosure. You further agree that you will not remove or retain any Confidentia\nInformation regardless of how it is maintained. You agree to return to VNB any and all copies of the Confidential Information that you have, or have\nhad, in your possession immediately upon termination of employment, whether voluntary or involuntary or upon any request by VNB. The terms of\nthis\nparagraph are in addition to, and not in lieu of, any legal or other contractual obligations that you may have, or believe you\nmay\nhave,\nrelating\nto\nthe protection of the Confidential Information or your employment. The terms of this paragraph shall survive indefinitely the termination of this\nAgreement and/or your employment with VNB.\n3. Non-Solicitation.\na. You agree that both during the course of your employment, and for a period of twelve (12) months following the voluntary or involuntary\ntermination of your employment, you will not, directly or indirectly, on your own behalf or in the service of or on behalf of any other person or entity\nother than VNB, solicit, divert or appropriate, or attempt to solicit, divert or appropriate, any business from any VNB customers or prospective\ncustomers with whom/which you have had contact during the course of your employment or about whom/which you have obtained Confidential\nInformation during the course of your employment.\nb. You agree that both during the course of your employment, and for a period of twelve (12) months following the voluntary or involuntary\ntermination of your employment, you will not (i) enter into, and will not participate in, any plan or arrangement to cause any employee of VNB to\nterminate his or her employment with VNB, or (ii) directly or indirectly solicit any VNB employee for employment in connection with any business\ninitiated by you or any other person, firm, company or corporation.\n4. Non-Competition.\nYou agree that both during the course of your employment, and for a period of three (3) months following the voluntary or involuntary termination\nof your employment, you will not accept employment or otherwise engage in any activity or work, that is in any way competitive with the business\nof VNB in which you are significantly involved at any time during your employment with VNB in a geographic area within a 30 mile radius of your\nthen current office location (or, if applicable, the office location at which you were primarily working immediately prior to the termination of your\nemployment with VNB) or within a 10 mile radius of any other VNB location. For purposes of this Agreement, you acknowledge and agree that\nVNB and its affiliates are engaged in the financial services business which includes, without limitation, commercial and retailing banking and\nlending, treasury management, private banking, trust, investment/brokerage services, wealth management and funds management. You also\nacknowledge\nthat\nVNB\nhas\nstrategic\nplans\nrelated\nto\noffering\nservices\nsuch\nas\nleasing,\nbrokerage,\ninternational\nand\nfactoring,\nand\nthat\nthose\nservices\nand businesses will be considered competitive with VNB under the terms of this Agreement to the extent that you are significantly involved in such\nservices or businesses during your employment with VNB.\n5. Enforcement of this Agreement.\nYou agree that the provisions outlined above are necessary and reasonable to protect the best interests of VNB, its customers, and its employees.\nFurther, you agree that in the event of your breach of any of the provisions of this Agreement, VNB would suffer substantial irreparable harm and\nthat monetary damages alone may not be sufficient to protect VNB adequately from such breach. In the event of a breach or threatened breach by\nyou of any of the provisions of this Agreement, in addition to such other remedies as VNB may have available at law, VNB shall be entitled\nto\nseek\nand obtain equitable relief, in the form of specific performance, or temporary, preliminary or permanent injunctive relief, or any other equitable\nremedy which then may be available. The seeking or granting of an injunction or other equitable remedy shall not affect VNB'S right to seek and\nobtain damages or other equitable relief on account of any such\nPage 2 of 3\nactual or threatened breach. You agree to pay all reasonable costs and expenses incurred by VNB in enforcing the provisions of this Agreement,\nincluding VNB's attorneys' fees.\n6. Miscellaneous\na. You acknowledge that you will be an "at will" employee of VNB and that your employment may be terminated at any time, with or without cause,\nat\nthe\noption of you or VNB. You also acknowledge that neither this Agreement nor any employee handbook or other document you may receive\ncreates any contractual rights contrary to the foregoing and that no representative or agent of Employer other than an Authorized Representative of\nVNB through a written, signed document has any authority to enter into any agreement for employment for any specified time period or to make any\nother agreement contrary to the foregoing. For purposes of this Agreement, an "Authorized Representative of VNB" shall mean either the Chairman\nof the Board, Chairman of the Compensation Committee, Chief Executive Officer, or President of VNB; provided, however, you may not sign on\nbehalf of VNB even if you hold one of the identified positions with VNB.\nb. This Agreement contains the entire understanding between you and VNB and supersedes any prior written or oral agreements with VNB. This\nAgreement shall not be modified or waived except by written instrument signed by you and an Authorized Representative of VNB.\nC. In the event that any provision of this Agreement shall be declared unenforceable or invalid, the remaining provisions shall continue to be valid\nand enforceable.\nd. This Agreement shall inure to the benefit of and be enforceable by VNB and/or VNB's successors in interest, subsidiaries and affiliates.\ne. You acknowledge that this Agreement shall be governed and enforced in accordance with the laws of the Commonwealth of Virginia, without\nregard to conflicts of law principal. You agree that the state and federal courts located in the City of Charlottesville or the County of Albemarle shall\nbe the exclusive jurisdictions for the resolution of any disputes concerning this Agreement, and you agree to submit to the jurisdiction of those\ncourts.\nf. You acknowledge that you have had the opportunity to consult with an attorney prior to signing this Agreement.\nWith your signature, you attest to your understanding of the provisions outlined above and voluntarily agree to each of the terms of this Agreement.\n/s/ Glenn W. Rust\n(SEAL)\nSignature\nPrinted Name: Glenn W. Rust\nDate:\nMarch 2, 2017\nACCEPTED:\nVirginia National Bank\nBy\n/s/ Steven W. Blaine\nSteven W. Blaine\nChairman of VNB's Compensation Committee\nDate: March 2, 2017\nPage 3 of 3	EX-10.2 3 vnb30097818-ex102.htm NON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION\nAGREEMENT\nExhibit 10.2\nNon-Disclosure, Non-Solicitation and Non-Competition Agreement\nDate: March 2, 2017\nName: Glenn W. Rust\nVirginia National Bank and its affiliates, including Virginia National Bankshares Corporation and VNBTrust, N.A., also known as VNB Wealth\nManagement (together “VNB”), has provided you with the continued opportunity to be a key member of VNB’s executive management team. As a\ncondition of your employment opportunity with VNB, you must sign and return this Non-Disclosure, Non-Solicitation and Non-Competition\nAgreement (this “Agreement”).\nIn consideration of this employment opportunity, your compensation, including your base salary, potential incentive compensation, Management\nContinuity Agreement with VNB, benefits, training, personal and professional growth potential, the opportunity to play an integral role in the\ncontinued growth and development of a community-based financial services organization, and other good and valuable consideration, the adequacy\nand receipt of which are hereby acknowledged, with your signature you acknowledge and agree to the following:\n1. Acknowledgement of VNB’s Interest.\nYou acknowledge that VNB has invested substantial time, money and resources in the development and retention of its customers, accounts,\nbusiness and employees. You acknowledge and agree that any and all "goodwill" associated with any customer, account, business or employee of\nVNB belongs exclusively to VNB. You further acknowledge and agree that during the course of your performing services for VNB, VNB employees\nand/or customers may furnish, disclose or otherwise make available to you confidential and proprietary information and that VNB may provide you\nwith unique and specialized training. You also acknowledge that (a) such relationships, information and training have been, and will continue to be,\ndeveloped by VNB through the expenditure by VNB of substantial time, effort and money, (b) all such relationships, information and training are\nvaluable to VNB and (c) use of such relationships, information and training by you other than for VNB’s benefit will cause substantial harm to VNB.\n2. Non-Disclosure of Confidential and Proprietary Information.\nVNB has developed and continues to develop, use and maintain confidential and proprietary information, which may include competitive\ninformation and trade secrets, concerning VNB’s business, customers and employees, including, without limitation, the following: identity and other\ninformation related to present and prospective customers; business organization and structure; business and marketing plans and strategies; training\nprograms and materials; product information; personnel information including employees' capabilities, salaries, benefits, and any other terms of\nemployment; policies, standards and procedures; current and prospective vendors and contracts; and profit, loss and other financial information\n(collectively, the "Confidential Information"). You acknowledge that during your employment with VNB you will have direct and indirect access to,\nand knowledge of, the Confidential Information, and you agree to take all reasonable measures to protect the confidentiality of such Confidential\nInformation. You agree to use the Confidential Information, both during and after your employment, for the sole benefit of VNB.\nYou agree and attest that any and all such Confidential Information is, and shall remain, the sole property of VNB. You agree that you will hold such\nConfidential Information in the strictest confidence and that you will not (except as required in the course of your employment with VNB, as\nrequired by any court, supervisory authority or administrative agency, or as otherwise required by applicable law) disclose, either directly or\nindirectly, any Confidential Information to any other business, firm, entity or person, unless such information\nhas become a matter of public knowledge at the time of such disclosure. You further agree that you will not remove or retain any Confidential\nInformation regardless of how it is maintained. You agree to return to VNB any and all copies of the Confidential Information that you have, or have\nhad, in your possession immediately upon termination of employment, whether voluntary or involuntary or upon any request by VNB. The terms of\nthis paragraph are in addition to, and not in lieu of, any legal or other contractual obligations that you may have, or believe you may have, relating to\nthe protection of the Confidential Information or your employment. The terms of this paragraph shall survive indefinitely the termination of this\nAgreement and/or your employment with VNB.\n3. Non-Solicitation.\na. You agree that both during the course of your employment, and for a period of twelve (12) months following the voluntary or involuntary\ntermination of your employment, you will not, directly or indirectly, on your own behalf or in the service of or on behalf of any other person or entity\nother than VNB, solicit, divert or appropriate, or attempt to solicit, divert or appropriate, any business from any VNB customers or prospective\ncustomers with whom/which you have had contact during the course of your employment or about whom/which you have obtained Confidential\nInformation during the course of your employment.\nb. You agree that both during the course of your employment, and for a period of twelve (12) months following the voluntary or involuntary\ntermination of your employment, you will not (i) enter into, and will not participate in, any plan or arrangement to cause any employee of VNB to\nterminate his or her employment with VNB, or (ii) directly or indirectly solicit any VNB employee for employment in connection with any business\ninitiated by you or any other person, firm, company or corporation.\n4. Non-Competition.\nYou agree that both during the course of your employment, and for a period of three (3) months following the voluntary or involuntary termination\nof your employment, you will not accept employment or otherwise engage in any activity or work, that is in any way competitive with the business\nof VNB in which you are significantly involved at any time during your employment with VNB in a geographic area within a 30 mile radius of your\nthen current office location (or, if applicable, the office location at which you were primarily working immediately prior to the termination of your\nemployment with VNB) or within a 10 mile radius of any other VNB location. For purposes of this Agreement, you acknowledge and agree that\nVNB and its affiliates are engaged in the financial services business which includes, without limitation, commercial and retailing banking and\nlending, treasury management, private banking, trust, investment/brokerage services, wealth management and funds management. You also\nacknowledge that VNB has strategic plans related to offering services such as leasing, brokerage, international and factoring, and that those services\nand businesses will be considered competitive with VNB under the terms of this Agreement to the extent that you are significantly involved in such\nservices or businesses during your employment with VNB.\n5. Enforcement of this Agreement.\nYou agree that the provisions outlined above are necessary and reasonable to protect the best interests of VNB, its customers, and its employees.\nFurther, you agree that in the event of your breach of any of the provisions of this Agreement, VNB would suffer substantial irreparable harm and\nthat monetary damages alone may not be sufficient to protect VNB adequately from such breach. In the event of a breach or threatened breach by\nyou of any of the provisions of this Agreement, in addition to such other remedies as VNB may have available at law, VNB shall be entitled to seek\nand obtain equitable relief, in the form of specific performance, or temporary, preliminary or permanent injunctive relief, or any other equitable\nremedy which then may be available. The seeking or granting of an injunction or other equitable remedy shall not affect VNB’s right to seek and\nobtain damages or other equitable relief on account of any such\nPage2of3\nactual or threatened breach. You agree to pay all reasonable costs and expenses incurred by VNB in enforcing the provisions of this Agreement,\nincluding VNB’s attorneys’ fees.\n6. Miscellaneous\na. You acknowledge that you will be an “at will” employee of VNB and that your employment may be terminated at any time, with or without cause,\nat the option of you or VNB. You also acknowledge that neither this Agreement nor any employee handbook or other document you may receive\ncreates any contractual rights contrary to the foregoing and that no representative or agent of Employer other than an Authorized Representative of\nVNB through a written, signed document has any authority to enter into any agreement for employment for any specified time period or to make any\nother agreement contrary to the foregoing. For purposes of this Agreement, an “Authorized Representative of VNB” shall mean either the Chairman\nof the Board, Chairman of the Compensation Committee, Chief Executive Officer, or President of VNB; provided, however, you may not sign on\nbehalf of VNB even if you hold one of the identified positions with VNB.\nb. This Agreement contains the entire understanding between you and VNB and supersedes any prior written or oral agreements with VNB. This\nAgreement shall not be modified or waived except by written instrument signed by you and an Authorized Representative of VNB.\nc. In the event that any provision of this Agreement shall be declared unenforceable or invalid, the remaining provisions shall continue to be valid\nand enforceable.\nd. This Agreement shall inure to the benefit of and be enforceable by VNB and/or VNB’s successors in interest, subsidiaries and affiliates.\ne. You acknowledge that this Agreement shall be governed and enforced in accordance with the laws of the Commonwealth of Virginia, without\nregard to conflicts of law principal. You agree that the state and federal courts located in the City of Charlottesville or the County of Albemarle shall\nbe the exclusive jurisdictions for the resolution of any disputes concerning this Agreement, and you agree to submit to the jurisdiction of those\ncourts.\nf. You acknowledge that you have had the opportunity to consult with an attorney prior to signing this Agreement.\nWith your signature, you attest to your understanding of the provisions outlined above and voluntarily agree to each of the terms of this Agreement.\n/s/ Glenn W. Rust\n(SEAL)\nSignature\nPrinted Name: Glenn W. Rust\nDate:\nMarch 2, 2017\nACCEPTED:\nVirginia National Bank\nBy /s/ Steven W. Blaine\nSteven W. Blaine\nChairman of VNB’s Compensation Committee\nDate: March 2, 2017\nPage3of3
+719e1e9a02e3dcd2776e84261fc56900.pdf	effective_date jurisdiction party term	EX-10.3 4 dex103.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nExhibit 10.3\nCONFIDENTIALITY & NON-DISCLOSURE AGREEMENT\nThis agreement (“Agreement”) is made as of the 1st\nday of September, 2008 (“Effective Date”) by and among THOMAS PROPERTIES\nGROUP, INC. and THOMAS PROPERTIES GROUP, L.P. (collectively, the “Company”), and PAUL S. RUTTER (the “Executive”).\nFor good and valuable consideration, Executive and Company hereby agree as follows:\n1. This Agreement will be effective on the Effective Date.\n2. Executive hereby assigns to Company all rights or interests that Executive may presently have or which may be acquired during the term of\nExecutive’s employment with the Company, in Company “Proprietary Information” as defined below in Section 5, and acknowledges that all such\nProprietary Information is the sole property of Company and its assigns.\n3. Subject to the provisions of Section 7 hereof, in the event that, during the term of Executive’s employment with the Company, Executive\ncreates or assists in the creation of any Company “Proprietary Information,” or any other Company intellectual property, and/or Executive prepares,\naccumulates or otherwise comes into possession of any materials or information during the course of performance of Executive’s duties which relate\nin any manner to Company’s business or development of services, Executive agrees that all such “Proprietary Information” and intellectual property\nshall be and remain the property of Company. In the event Executive’s employment with Company is terminated, for any reason, Executive shall\npromptly deliver to Company all such “Proprietary Information” and intellectual property (and any copies thereof), as well as any materials related\nto Company’s trade secrets or confidential information (and any copies thereof), which are within Executive’s custody or control.\n4. Executive agrees to disclose to Company all “Proprietary Information” and intellectual property developed during the term of his/her\nemployment, whether made solely or jointly with others, which relate to Company’s business, research, or development of products and services.\n5. During the term of Executive’s employment with Company and thereafter, Executive will not offer or disclose by any means, or use in any\nmanner, for Executive’s own benefit or the benefit of any other person or entity (other than Company or its affiliate Thomas Properties Group, L.P.),\nany Company “Proprietary Information” or Company intellectual property. As used herein, the terms “Proprietary Information,” “intellectual\nproperty” and “trade secrets,” shall include, but not be limited to: (a) all information of any kind regarding Company’s business, research, marketing,\nsales, operations and products and plans for development of new business products and services; (b) all operational designs and techniques related to\nbusiness, marketing and financial information or data of any kind related to Company’s business and business opportunities; (c) all information of\nany kind regarding Company’s suppliers, vendors, consultants, agents and customers, including lists or compilations of any such persons or entities;\n(d) all information of any kind regarding Company’s officers, directors and shareholders (other than Executive), including their respective abilities,\nfunctions, conduct or pay; (e) all proprietary information of any kind received or developed under agreement or other arrangement by\n1\nCompany with any third party; and (f) all unpublished materials received or developed, including all works of authorship, which relate to the\nbusiness of Company, including but not limited to those concerning proprietary, trade secret or Company-private information, investment strategies,\ndevelopment plans, research and development data, and any other technical reports relating to Company’s business operations now existing or which\nmay be developed during the term of Executive’s employment with Company.\n6. Executive understands and agrees that a breach of the provisions contained herein could cause significant and irreparable harm to Company\nthat could not be satisfactorily compensated in monetary terms. Accordingly, and without in any way limiting Company from taking any other legal\naction to which it may be entitled to under law or in equity, in the event of any such breach or threatened breach, Company will be entitled to\ninjunctive relief including the immediate ex parte issuance, without bond, of a temporary restraining order against any such breach of threatened\nbreach.\n7. This Agreement shall not apply to: (a) any invention developed by Executive which qualifies under the provisions of California Labor Code,\nSection 2870; (b) any information which is or becomes publicly available, unless it becomes such as a result of a breach of this Agreement; (c) any\ninformation which Company subsequently discloses to any other person or entity without restriction; or (d) disclosure required by law or legal\nprocess; provided, that if Executive receives actual notice that the Executive is or may be required by law or legal process to disclose any such\ninformation, Executive shall promptly so notify Company, and in any event within five (5) days after the receipt of such notice.\n8. No amendment or modification to this Agreement shall be valid unless in writing signed by Executive and an authorized officer of\nCompany.\n9. The execution of this Agreement shall not be construed in any manner to alter Executive’s employment with Company as provided in his\nEmployment Agreement.\n10. The waiver by any party of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent\nbreach thereof or as a waiver of any other provisions of this Agreement. The remedies set forth herein are nonexclusive and are in addition to any\nother remedies that any party may have at law or in equity.\n11. If any legal action, arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute,\nbreach or default in connection with any of the provisions of this Agreement, the prevailing party shall be entitled to recover attorneys’ fees and\ncosts as set forth in the Employment Agreement.\n12. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered\nor certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive: at the Executive’s most recent address on the records of the Company,\n2\nIf to the Company:\nc/o Thomas Properties Group, Inc.\n515 South Flower Street, Sixth Floor\nLos Angeles, CA 90071\nAttn: James A. Thomas, CEO\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n13. This Agreement is entered into and shall be governed and interpreted in accordance with the laws of the State of California, without regard\nto or application of choice of law rules or principles. It shall be binding upon and inure to the benefit of the parties, and to their respective heirs,\npersonal representatives, successors and assigns. In the event that any provision of this Agreement is found by a court, arbitrator or other tribunal to\nillegal, invalid or unenforceable, then the remaining provisions of this Agreement shall not be voided, but shall be enforced to the maximum extent\npermissible by law.\n3\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.\nExecutive\nThomas Properties Group, Inc.,\na Delaware corporation\n/s/ Paul S. Rutter\nBy: /s/ James A. Thomas\nPAUL S. RUTTER\nTitle: Chief Executive Officer\nThomas Properties Group, L.P.,\na Maryland limited partnership\nBy: Thomas Properties Group, Inc.\nIts\nGeneral Partner\nBy: /s/ James A. Thomas\nTitle: Chief Executive Officer\n4	EX-10.3 4 dex103.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nExhibit 10.3\nCONFIDENTIALITY & NON-DISCL.OSURE AGREEMENT\nThis agreement (“Agreement”) is made as of the 1%*day of September, 2008 (“Effective Date”) by and among THOMAS PROPERTIES\nGROUP, INC. and THOMAS PROPERTIES GROUP, L.P. (collectively, the “Company”), and PAUL S. RUTTER (the “Executive”).\nFor good and valuable consideration, Executive and Company hereby agree as follows:\n1. This Agreement will be effective on the Effective Date.\n2. Executive hereby assigns to Company all rights or interests that Executive may presently have or which may be acquired during the term of\nExecutive’s employment with the Company, in Company “Proprietary Information” as defined below in Section 5, and acknowledges that all such\nProprietary Information is the sole property of Company and its assigns.\n3. Subject to the provisions of Section 7 hereof, in the event that, during the term of Executive’s employment with the Company, Executive\ncreates or assists in the creation of any Company “Proprietary Information,” or any other Company intellectual property, and/or Executive prepares,\naccumulates or otherwise comes into possession of any materials or information during the course of performance of Executive’s duties which relate\nin any manner to Company’s business or development of services, Executive agrees that all such “Proprietary Information” and intellectual property\nshall be and remain the property of Company. In the event Executive’s employment with Company is terminated, for any reason, Executive shall\npromptly deliver to Company all such “Proprietary Information” and intellectual property (and any copies thereof), as well as any materials related\nto Company’s trade secrets or confidential information (and any copies thereof), which are within Executive’s custody or control.\n4. Executive agrees to disclose to Company all “Proprietary Information” and intellectual property developed during the term of his/her\nemployment, whether made solely or jointly with others, which relate to Company’s business, research, or development of products and services.\n5. During the term of Executive’s employment with Company and thereafter, Executive will not offer or disclose by any means, or use in any\nmanner, for Executive’s own benefit or the benefit of any other person or entity (other than Company or its affiliate Thomas Properties Group, L.P.),\nany Company “Proprietary Information” or Company intellectual property. As used herein, the terms “Proprietary Information,” “intellectual\nproperty” and “trade secrets,” shall include, but not be limited to: (a) all information of any kind regarding Company’s business, research, marketing,\nsales, operations and products and plans for development of new business products and services; (b) all operational designs and techniques related to\nbusiness, marketing and financial information or data of any kind related to Company’s business and business opportunities; (c) all information of\nany kind regarding Company’s suppliers, vendors, consultants, agents and customers, including lists or compilations of any such persons or entities;\n(d) all information of any kind regarding Company’s officers, directors and shareholders (other than Executive), including their respective abilities,\nfunctions, conduct or pay; (e) all proprietary information of any kind received or developed under agreement or other arrangement by\n1\nCompany with any third party; and (f) all unpublished materials received or developed, including all works of authorship, which relate to the\nbusiness of Company, including but not limited to those concerning proprietary, trade secret or Company-private information, investment strategies,\ndevelopment plans, research and development data, and any other technical reports relating to Company’s business operations now existing or which\nmay be developed during the term of Executive’s employment with Company.\n6. Executive understands and agrees that a breach of the provisions contained herein could cause significant and irreparable harm to Company\nthat could not be satisfactorily compensated in monetary terms. Accordingly, and without in any way limiting Company from taking any other legal\naction to which it may be entitled to under law or in equity, in the event of any such breach or threatened breach, Company will be entitled to\ninjunctive relief including the immediate ex parte issuance, without bond, of a temporary restraining order against any such breach of threatened\nbreach.\n7. This Agreement shall not apply to: (a) any invention developed by Executive which qualifies under the provisions of California Labor Code,\nSection 2870; (b) any information which is or becomes publicly available, unless it becomes such as a result of a breach of this Agreement; (c) any\ninformation which Company subsequently discloses to any other person or entity without restriction; or (d) disclosure required by law or legal\nprocess; provided, that if Executive receives actual notice that the Executive is or may be required by law or legal process to disclose any such\ninformation, Executive shall promptly so notify Company, and in any event within five (5) days after the receipt of such notice.\n \n8. No amendment or modification to this Agreement shall be valid unless in writing signed by Executive and an authorized officer of\nCompany.\n9. The execution of this Agreement shall not be construed in any manner to alter Executive’s employment with Company as provided in his\nEmployment Agreement.\n10. The waiver by any party of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent\nbreach thereof or as a waiver of any other provisions of this Agreement. The remedies set forth herein are nonexclusive and are in addition to any\nother remedies that any party may have at law or in equity.\n11. If any legal action, arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute,\nbreach or default in connection with any of the provisions of this Agreement, the prevailing party shall be entitled to recover attorneys’ fees and\ncosts as set forth in the Employment Agreement.\n12. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered\nor certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive: at the Executive’s most recent address on the records of the Company,\n2\nIf to the Company:\nc/o Thomas Properties Group, Inc.\n515 South Flower Street, Sixth Floor\nLos Angeles, CA 90071\nAttn: James A. Thomas, CEO\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n13. This Agreement is entered into and shall be governed and interpreted in accordance with the laws of the State of California, without regard\nto or application of choice of law rules or principles. It shall be binding upon and inure to the benefit of the parties, and to their respective heirs,\npersonal representatives, successors and assigns. In the event that any provision of this Agreement is found by a court, arbitrator or other tribunal to\nillegal, invalid or unenforceable, then the remaining provisions of this Agreement shall not be voided, but shall be enforced to the maximum extent\npermissible by law.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. Executive\n/s/ Paul S. Rutter\nPAUL S. RUTTER\nThomas Properties Group, Inc.,\na Delaware corporation\nBy: /s/ James A. Thomas\nTitle: Chief Executive Officer\nThomas Properties Group, L.P.,,\na Maryland limited partnership\nBy:  Thomas Properties Group, Inc.\nIts General Partner\nBy: /s/James A. Thomas\nTitle: Chief Executive Officer	EX-10.3 4 lex103.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nExhibit 10.3\nCONFIDENTIALITY & NON-DISCLOSURE AGREEMENT\nThis agreement ("Agreement") is made as of the 1st day of September, 2008 ("Effective Date") by and among THOMAS PROPERTIES\nGROUP, INC. and THOMAS PROPERTIES GROUP, L.P. (collectively, the "Company"), and PAUL S. RUTTER (the "Executive").\nFor good and valuable consideration, Executive and Company hereby agree as follows:\n1. This Agreement will be effective on the Effective Date.\n2. Executive hereby assigns to Company all rights or interests that Executive may presently have or which may be acquired during the term of\nExecutive's employment with the Company, in Company "Proprietary Information" as defined below in Section 5, and acknowledges that all such\nProprietary Information is the sole property of Company and its assigns.\n3. Subject to the provisions of Section 7 hereof, in the event that, during the term of Executive's employment with the Company, Executive\ncreates or assists in the creation of any Company "Proprietary Information," or any other Company intellectua property, and/or Executive prepares,\naccumulates or otherwise comes into possession of any materials or information during the course of performance of Executive's duties which relate\nin any manner to Company's business or development of services, Executive agrees that all such "Proprietary Information" and intellectual property\nshall be and remain the property of Company. In the event Executive's employment with Company is terminated, for any reason, Executive shall\npromptly deliver to Company all such "Proprietary Information" and intellectual property (and any copies thereof), as well as any materials related\nto Company's trade secrets or confidential information (and any copies thereof), which are within Executive's custody or control.\n4. Executive agrees to disclose to Company all "Proprietary Information" and intellectual property developed during the term of his/her\nemployment, whether made solely or jointly with others, which relate to Company's business, research, or development of products and services.\n5. During the term of Executive's employment with Company and thereafter, Executive will not offer or disclose by any means, or use in any\nmanner, for Executive's own benefit or the benefit of any other person or entity (other than Company or its affiliate Thomas Properties Group, L.P.),\nany Company "Proprietary Information" or Company intellectual property. As used herein, the terms "Proprietary Information," "intellectual\nproperty" and "trade secrets," shall include, but not be limited to: (a) all information of any kind regarding Company's business, research, marketing,\nsales, operations and products and plans for development of new business products and services; (b) all operational designs and techniques related to\nbusiness, marketing and financial information or data of any kind related to Company's business and business opportunities; (c) all information of\nany\nkind\nregarding Company's suppliers, vendors, consultants, agents and customers, including lists or compilations of any such persons or entities;\n(d) all information of any kind regarding Company's officers, directors and shareholders (other than Executive), including their respective abilities,\nfunctions, conduct or pay; (e) all proprietary information of any kind received or developed under agreement or other arrangement by\n1\nCompany with any third party; and (f) all unpublished materials received or developed, including all works of authorship, which relate to the\nbusiness of Company, including but not limited to those concerning proprietary, trade secret or Company-private information, investment strategies,\ndevelopment plans, research and development data, and any other technical reports relating to Company's business operations now existing or which\nmay be developed during the term of Executive's employment with Company.\n6.\nExecutive understands and agrees that a breach of the provisions contained herein could cause significant and irreparable harm to Company\nthat could not be satisfactorily compensated in monetary terms. Accordingly, and without in any way limiting Company from taking any other legal\naction to which it may be entitled to under law or in equity, in the event of any such breach or threatened breach, Company will be entitled to\ninjunctive relief including the immediate ex parte issuance, without bond, of a temporary restraining order against any such breach of threatened\nbreach.\n7. This Agreement shall not apply to: (a) any invention developed by Executive which qualifies under the provisions of California Labor Code,\nSection 2870; (b) any information which is or becomes publicly available, unless it becomes such as a result of a breach of this Agreement; (c) any\ninformation which Company subsequently discloses to any other person or entity without restriction; or (d) disclosure required by law or legal\nprocess; provided, that if Executive receives actual notice that the Executive is or may be required by law or legal process to disclose any such\ninformation, Executive shall promptly so notify Company, and in any event within five (5) days after the receipt of such notice.\n8. No amendment or modification to this Agreement shall be valid unless in writing signed by Executive and an authorized officer of\nCompany.\n9. The execution of this Agreement shall not be construed in any manner to alter Executive's employment with Company as provided in his\nEmployment Agreement.\n10. The waiver by any party of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent\nbreach thereof or as a waiver of any other provisions of this Agreement. The remedies set forth herein are nonexclusive and are in addition to any\nother remedies that any party may have at law or in equity.\n11. If any legal action, arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute,\nbreach or default in connection with any of the provisions of this Agreement, the prevailing party shall be entitled to recover attorneys' fees and\ncosts as set forth in the Employment Agreement.\n12. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered\nor certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive: at the Executive's most recent address on the records of the Company,\n2\nIf to the Company:\nc/o Thomas Properties Group, Inc.\n515 South Flower Street, Sixth Floor\nLos Angeles, CA 90071\nAttn: James A. Thomas, CEO\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n13. This Agreement is entered into and shall be governed and interpreted in accordance with the laws of the State of California, without regard\nto or application of choice of law rules or principles It shall be binding upon and inure to the benefit of the parties, and to their respective heirs,\npersonal representatives, successors and assigns. In the event that any provision of this Agreement is found by a court, arbitrator or other tribunal to\nillegal, invalid or unenforceable, then the remaining provisions of this Agreement shall not be voided, but shall be enforced to the maximum extent\npermissible by law.\n3\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.\nExecutive\nThomas Properties Group, Inc.,\na Delaware corporation\n/s/ Paul S. Rutter\nBy:\n/s/ James A. Thomas\nPAUL S. RUTTER\nTitle: Chief Executive Officer\nThomas Properties Group, L.P.,\na Maryland limited partnership\nBy:\nThomas Properties Group, Inc.\nIts\nGeneral Partner\nBy:\n/s/ James A. Thomas\nTitle: Chief Executive Officer\n4	EX-10.3 4 dex103.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nExhibit 10.3\nCONFIDENTIALITY & NON-DISCLOSURE AGREEMENT\nThis agreement (“Agreement”) is made as of the 1st\nday of September, 2008 (“Effective Date”) by and among THOMAS PROPERTIES\nGROUP, INC. and THOMAS PROPERTIES GROUP, L.P. (collectively, the “Company”), and PAUL S. RUTTER (the “Executive”).\nFor good and valuable consideration, Executive and Company hereby agree as follows:\n1. This Agreement will be effective on the Effective Date.\n2. Executive hereby assigns to Company all rights or interests that Executive may presently have or which may be acquired during the term of\nExecutive’s employment with the Company, in Company “Proprietary Information” as defined below in Section 5, and acknowledges that all such\nProprietary Information is the sole property of Company and its assigns.\n3. Subject to the provisions of Section 7 hereof, in the event that, during the term of Executive’s employment with the Company, Executive\ncreates or assists in the creation of any Company “Proprietary Information,” or any other Company intellectual property, and/or Executive prepares,\naccumulates or otherwise comes into possession of any materials or information during the course of performance of Executive’s duties which relate\nin any manner to Company’s business or development of services, Executive agrees that all such “Proprietary Information” and intellectual property\nshall be and remain the property of Company. In the event Executive’s employment with Company is terminated, for any reason, Executive shall\npromptly deliver to Company all such “Proprietary Information” and intellectual property (and any copies thereof), as well as any materials related\nto Company’s trade secrets or confidential information (and any copies thereof), which are within Executive’s custody or control.\n4. Executive agrees to disclose to Company all “Proprietary Information” and intellectual property developed during the term of his/her\nemployment, whether made solely or jointly with others, which relate to Company’s business, research, or development of products and services.\n5. During the term of Executive’s employment with Company and thereafter, Executive will not offer or disclose by any means, or use in any\nmanner, for Executive’s own benefit or the benefit of any other person or entity (other than Company or its affiliate Thomas Properties Group, L.P.),\nany Company “Proprietary Information” or Company intellectual property. As used herein, the terms “Proprietary Information,” “intellectual\nproperty” and “trade secrets,” shall include, but not be limited to: (a) all information of any kind regarding Company’s business, research, marketing,\nsales, operations and products and plans for development of new business products and services; (b) all operational designs and techniques related to\nbusiness, marketing and financial information or data of any kind related to Company’s business and business opportunities; (c) all information of\nany kind regarding Company’s suppliers, vendors, consultants, agents and customers, including lists or compilations of any such persons or entities;\n(d) all information of any kind regarding Company’s officers, directors and shareholders (other than Executive), including their respective abilities,\nfunctions, conduct or pay; (e) all proprietary information of any kind received or developed under agreement or other arrangement by\n1\nCompany with any third party; and (f) all unpublished materials received or developed, including all works of authorship, which relate to the\nbusiness of Company, including but not limited to those concerning proprietary, trade secret or Company-private information, investment strategies,\ndevelopment plans, research and development data, and any other technical reports relating to Company’s business operations now existing or which\nmay be developed during the term of Executive’s employment with Company.\n6. Executive understands and agrees that a breach of the provisions contained herein could cause significant and irreparable harm to Company\nthat could not be satisfactorily compensated in monetary terms. Accordingly, and without in any way limiting Company from taking any other legal\naction to which it may be entitled to under law or in equity, in the event of any such breach or threatened breach, Company will be entitled to\ninjunctive relief including the immediate ex parte issuance, without bond, of a temporary restraining order against any such breach of threatened\nbreach.\n7. This Agreement shall not apply to: (a) any invention developed by Executive which qualifies under the provisions of California Labor Code,\nSection 2870; (b) any information which is or becomes publicly available, unless it becomes such as a result of a breach of this Agreement; (c) any\ninformation which Company subsequently discloses to any other person or entity without restriction; or (d) disclosure required by law or legal\nprocess; provided, that if Executive receives actual notice that the Executive is or may be required by law or legal process to disclose any such\ninformation, Executive shall promptly so notify Company, and in any event within five (5) days after the receipt of such notice.\n8. No amendment or modification to this Agreement shall be valid unless in writing signed by Executive and an authorized officer of\nCompany.\n9. The execution of this Agreement shall not be construed in any manner to alter Executive’s employment with Company as provided in his\nEmployment Agreement.\n10. The waiver by any party of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent\nbreach thereof or as a waiver of any other provisions of this Agreement. The remedies set forth herein are nonexclusive and are in addition to any\nother remedies that any party may have at law or in equity.\n11. If any legal action, arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute,\nbreach or default in connection with any of the provisions of this Agreement, the prevailing party shall be entitled to recover attorneys’ fees and\ncosts as set forth in the Employment Agreement.\n12. All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by registered\nor certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive: at the Executive’s most recent address on the records of the Company,\n2\nIf to the Company:\nc/o Thomas Properties Group, Inc.\n515 South Flower Street, Sixth Floor\nLos Angeles, CA 90071\nAttn: James A. Thomas, CEO\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n13. This Agreement is entered into and shall be governed and interpreted in accordance with the laws of the State of California, without regard\nto or application of choice of law rules or principles. It shall be binding upon and inure to the benefit of the parties, and to their respective heirs,\npersonal representatives, successors and assigns. In the event that any provision of this Agreement is found by a court, arbitrator or other tribunal to\nillegal, invalid or unenforceable, then the remaining provisions of this Agreement shall not be voided, but shall be enforced to the maximum extent\npermissible by law.\n3\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.\nExecutive\nThomas Properties Group, Inc.,\na Delaware corporation\n/s/ Paul S. Rutter\nBy: /s/ James A. Thomas\nPAUL S. RUTTER\nTitle: Chief Executive Officer\nThomas Properties Group, L.P.,\na Maryland limited partnership\nBy: Thomas Properties Group, Inc.\nIts\nGeneral Partner\nBy: /s/ James A. Thomas\nTitle: Chief Executive Officer\n4
+71eb79f23dae6063d5c334bf057e9ab4.pdf	effective_date jurisdiction party term	EX-99.D.6 10 y31044exv99wdw6.htm EX-99.D.6: NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nNON- DISCLOSURE & CONFIDENTIALITY AGREEMENT\nTHIS NON-DISCLOSURE & CONFIDENTIALITY AGREEMENT (hereinafter this “Agreement”) is made and entered into as of the 28th day of November,\n2006 (hereinafter “Effective Date”), by and between Shire Pharmaceuticals, Inc., a Delaware corporation having a principal place of business at\n725 Chesterbrook Boulevard, Wayne, PA 19087 (“SHIRE”), L.E .K. Consulting LLC, 28 State Street, 16th Floor, Boston, Massachusetts 02109\n(“L.E.K.”), and New River Pharmaceuticals Inc., a Virginia corporation with offices located at The Governor Tyler, 1881 Grove Avenue,\nRadford, Virginia 24141 (“NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”).\nRecitals\nWHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and\nNEW RIVER may enter into a business relationship or may enter into one or more business transactions related to “Project Night” (hereinafter\ncollectively referred to as the “Business Purpose”);\nWHEREAS SHIRE has engaged L.E.K . to assist SHIRE in its discussions and evaluations in connection with the Business Purpose;\nWHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW\nRIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing,\ngraphically, electronically or by visual inspection of the premises of the Disclosing Party, and\nWHEREAS the Parties intend that any Confidential Information disclosed by either NEW RIVER or SHIRE shall be used by any other Party\nonly to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized\nparties by the terms of this Agreement.\nNOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions,\ncovenants and warranties herein contained, the Parties agree as follows:\n1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:\n(a) “Confidential Information” shall mean commercial, corporate, scientific, regulatory and technical information, including, without\nlimitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed\nproducts, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions of\nthe information disclosed, relating to NEW\nCONFIDENTIAL\nRIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and\nproprietary property. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various\nelements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be\nin the Receiving Party’s possession or to be thereafter acquired by the Receiving Party merely because it embraces information in the public\ndomain or general information that the Receiving Party may thereafter acquire.\n(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.\n(c) “Receiving Party” Shall mean the Party receiving disclosure of the Confidential Information.\n(d) It is specifically understood and agreed that Confidential Information shall include the existence of this Agreement and its terms and the\nfact that the Parties are discussing and evaluating the Business Purpose.\n2. Applicability. This Agreement shall apply to all Confidential Information disclosed by the Disclosing Party to the Receiving Party, and\nConfidential Information shall include extracts, analyses, compilations, studies or other documents or records prepared by or for the Receiving\nParty or any of Receiving Party’s Representatives (defined in Paragraph 4) to the extent that such extracts, analyses, compilations, studies,\ndocuments or records contain or otherwise reflect or are generated from the Disclosing Party’s Confidential Information.\n3. Non-Disclosure Obligation. Each Party agrees:\n(a) to hold the other Party’s Confidential Information in strict confidence in accordance with this Agreement;\n(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to\nits own Confidential Information (but in no event less than reasonable care);\n(c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors\nand consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and\n(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the\nDisclosing Party.\n4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities.\n(a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its\ndirectors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality\nCONFIDENTIAL\nPage2of7\nconsistent with this Agreement, who have a bona fide need to know (“Representatives”), but only to the extent necessary to carry out the\nBusiness Purpose. Each Party agrees to instruct all such Representatives (i) of the identities of the Party’s other permitted Representatives, and\n(ii) not to disclose such Confidential Information to any third parties (including, without limitation, any clients, affiliates, subsidiaries,\nindependent contractors, and consultants) other than the identified Representatives without the prior written permission of the Disclosing Party.\nThe Receiving Party shall be responsible for the conduct and compliance of its Representatives under this Agreement.\n(b) SHIRE shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit A\nhereto, the L.E.K. Representatives identified on Exhibit B hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.\n(c) L.E .K. shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit B\nhereto, the SHIRE Representatives identified on Exhibit A hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.\n(d) NEW RIVER shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on\nExhibit C hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the L.E.K. Representatives identified on Exhibit B hereto.\n(e) In assisting SHIRE in discussions and evaluations in connection with the Business Purpose, L.E .K. may be communicating with NEW\nRIVER employees, consultants, or contractors not identified as NEW RIVER Representatives on Exhibit C hereto. In all such communications,\nL.E .K. shall not disclose the name of its client or otherwise permit any communication or disclosure that could result in such NEW RIVER\nemployees, consultants, or contractors identifying SHIRE as having any involvement in the work being performed by L.E.K.\n5. Non-Confidential Information. The confidentiality and non-use provisions of this Agreement shall not include information that the\nReceiving Party is able to demonstrate by competent proof:\n(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the\nindustry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the\nReceiving Party;\n(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving\nParty’s written records;\n(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or\ndisclosure;\nCONFIDENTIAL\nPage3of7\n(d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to\nConfidential Information acquired from the Disclosing Party;\n(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that\n(i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and\n(ii) Receiving Party shall have informed the requesting authority of the confidential nature of the information and used reasonable efforts to\nobtain confidential treatment for the information required to be disclosed; or\n(f) is disclosed with the prior, written consent of the Disclosing Party specifically authorizing such disclosure by the Receiving Party.\n6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other Party’s\nConfidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any\nand all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation,\nthat the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made\nwithout the consent of the Disclosing Party.\n7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party\nall materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof; provided, however, Receiving\nParty’s legal department or outside legal counsel may maintain a single copy of Disclosing Party’s Confidential Information for purposes of\nregulatory compliance and compliance with the terms and conditions of this Agreement.\n8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nthe Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party or its Representative, and will cooperate\nwith the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party to regain possession of the Confidential Information\nand prevent its further unauthorized use or disclosure.\n9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to\nthe Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except for the Business Purpose.\n10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter\ninto any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or\nCONFIDENTIAL\nPage4of7\nlicense under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party.\n11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the\nDisclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm\nand significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy.\nAccordingly, each Party agrees that the Disclosing Party shall have the right to seek an immediate injunction from any court of competent\njurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information\nwithout the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at\nlaw or equity for such a breach.\n12. Term. This Agreement shall become effective upon the effective Date and shall remain in effect for five (5) years from the Effective Date\nunless extended by the written consent of the Parties.\n13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and\nfollowed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or\n(b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows.\nIf to NEW RIVER:\nNew River Pharmaceuticals Inc.\nThe Governor Tyler\n1881 Grove Ave\nRadford, VA 24141\nAttention: Legal Department\nFax No.: (540) 633-7939\nIf to SHIRE:\nShire Pharmaceuticals, Inc.\n725 Chesterbrook Boulevard\nWayne, PA 19087\nAttention: Legal Department\nFax No.: 484-595-8163\nCONFIDENTIAL\nPage5of7\nIf to L.E .K.:\nL.E .K. Consulting LLC\n28 State Street\n16th Floor\nBoston, MA 02109\nAttention: Mike Clabault\nFax No.: 617-951-9392\nAny party may change its address for notices by giving the other party notice of such change in the manner provided above.\n14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6,\nsets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by a\nwritten agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the\nParties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and\n(b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC,\nShire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005,\nby and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the\nexecution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each.\n15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this\nAgreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by mutual agreement of the\nParties in writing by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or\nunenforceable term or provision.\n16. Governing Law. The validity and interpretation of this Agreement shall be governed by, construed and enforced in accordance with, the\nlaws of the State of New York applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof).\n17. Waiver. No waiver by either Party of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of\nany other provision of this Agreement. No waiver by either Party of any breach or default by the other Party, shall constitute a waiver of any\nother breach or default of the same or any other provision of this Agreement. No waiver of any provision, breach or default shall be effective\nunless made in writing and signed by an authorized representative of the Party against whom waiver is sought.\n18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it has the\nright to permit the other Party to evaluate\nCONFIDENTIAL\nPage6of7\nthe Confidential Information in accordance herewith; and (c) the terms of this Agreement are not inconsistent with any other contractual or legal\nobligation it may have.\n19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange\nfacsimile copies of this Agreement, all of which taken together shall constitute one agreement.\n20. Insider Trading. Each Party acknowledges that (a) the Disclosing Party’s Confidential Information may represent material, non-public\ninformation of the Disclosing Party; (b) federal securities laws prohibit anyone who is in possession of material, non-public information from\npurchasing or selling the Disclosing Party’s securities on the basis of material, non-public information of the Disclosing Party; and (c) each Party\nshall comply with all applicable securities laws and regulations with respect to material, non-public information of the Disclosing Party disclosed\nunder this Agreement.\n21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs,\nexecutors, administrators and permitted assigns. Neither Party may assign this Agreement in whole or in part or delegate its obligations under\nthis Agreement in whole or in part without the prior written consent of the other Party.\n22. Press Releases; Use of Trademarks. Neither Party shall (a) issue a press release or make any other public statement that references this\nAgreement, or (b) use the other Party’s names or trademarks for publicity or advertising purposes, except with the prior written consent of the\nother Party.\n23. Amendment; Modification. This Agreement may not be amended, modified, altered or supplemented except by a writing signed by both\nParties.\nIN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.\nNEW RIVER PHARMACEUTICALS INC.\nL.E .K. CONSULTING LLC\nBy:\n- s- Randal J. Kirk\nBy:\n- s- Jon Piper\nName: Randal J. Kirk\nName: Jon Piper\nTitle: President & CEO\nTitle: Vice President\nSHIRE PHARMACEUTICALS, INC\nBy:\n- s- XXXXX\nName: Scott Applebaum\nTitle: Secretary\nCONFIDENTIAL\nPage7of7\nLEK Team Contacts\nL.E .K. Team\nName\nTitle\nEmail\nWork Phone\nMarc Kozin\nVice President\nm.kozin@lek.com\n617-951-9545\nJonathan Piper\nVice President\nj.piper@lek.com\n617-951-9627\nSteven Rosner\nVice President\ns.rosner@lek.com\n617-951-9556\nJonathan Chou\nManager\nj.chou@lek.com\n617-951-9666\nDavid Maier\nConsultant\nd.maier@lek.com\n617-951-9526\nBrian Sze\nAssociate Consultant\nb.sze@lek.com\n617-951-9586\nJonathan Rupp\nAssociate\nj.rupp@lek.com\n617-951-9662\nBeth Goldberg\nExec Assist to M. Kozin\nb.goldberg@lek.com\n617-951-9515\nEwa Hart\nExec Assist to J. Piper\ne.hart@lek.com\n617-951-9682\nErika Jenkins\nExec Assist to S. Rosner\ne.jenkins@lek.com\n617-951-9559\nAndrea McNaughton\nExec Assist to J. Chou\na.mcnaughton@lek.com\n617-951-9638\nL.E .K. Boston Main\n617-951-9500\nL.E .K. Boston Fax\n617-951-9392\nLEK Confidential\n11/30/2006\nPage 1\nExhibit A\nTo the Non-Disclosure & Confidentiality\nAgreement by and between\nShire Pharmaceuticals Inc\nL.E.K . Consulting LLC\nNew River Pharmaceuticals Inc\nwith the Effective Date of 28 November 2006\nShire Project Team\nMatthew Emmens\nAngus Russell\nMike Cola\nBarbara Deptula\nTatjana May\nScott Applebaum\nSimon Gibbins\nGwen Melincoff\nCraig Lewis\nDavid Baker\nSuzanne Hare\nRob Lutz\nJanice Hall\nCherise Kent\nJonathan Poole\nJay Glasscott\nFinbarr Obinyan\nChris Janssen\nLEK Team Contacts\nL.E .K. Team\nName\nTitle\nEmail\nWork Phone\nMarc Kozin\nJonathan Piper\nSteven Rosner\nJonathan Chou\nDavid Maier\nBrian Sze\nJonathan Rupp\nVice President\nVice President\nVice President\nManager\nConsultant\nAssociate Consultant\nAssociate\nm.kozin@lek.com\nj.piper@lek.com\ns.rosner@lek.com\nj.chou@lek.com\nd.maier@.lek.com\nb.sze@lek.com\nj.rupp@lek.com\n617-951-9545\n617-951-9627\n617-951-9556\n617-951-9666\n617-951-9526\n617-951-9586\n617-951-9662\nBeth Goldberg\nEwa Hart\nErika Jenkins\nAndrea McNaughton\nExec Assist to M. Kozin\nExec Assist to J. Piper\nExec Assist to S. Rosner\nExec Assist to J. Chou\nb.goldberg@lek.com\ne.hart@lek.com\ne.jenkins@lek.com\na.mcnaughton@lek.com\n617-951-9515\n617-951-9682\n617-951-9559\n617-951-9638\nL.E .K. Boston Main\nL.E .K. Boston Fax\n617-951-9500\n617-951-9392\nLEK Confidential\n12/6/2006\nPage 1\nNon-Disclosure & Confidentiality Agreement among Shire, L.E.K . and New River dated November 28, 2006.\nExhibit C\nNEW RIVER REPRESENTATIVES\nName\nTitle\nEmail\nWork Phone\nRandal J. Kirk\nChairman, President\nrj.kirk@nrpharma.com\n540.633 .7978\nand Chief Executive\nOfficer\nKrish S. Krishnan\nChief Operating\nkrish.krishnan@nrpharma.com\n540.633 .7978\nOfficer, Chief\nFinancial Officer\nand Secretary\nSuma M. Krishnan\nVice President,\nskrishnan@nrpharma.com\n540.633 .7978\nProduct Development\nCliff Herndon\nVice President,\ncliff.herndon@thirdsecurity.com\n540.633 .7922\nFinance and\nController\nLegal Department personnel at Third Security, LLC\nMarcus E. Smith\nSenior Managing\nmarcus.smith@thirdsecurity.com\n540.633 .7971\nDirector and\nGeneral Counsel\nTad Fisher\nManaging Director\ntad.fisher@thirdsecurity.com\n540.633 .7951\nand Associate\nGeneral Counsel\nReade Williams\nAssociate General\nreade.williams@thirdsecurity.com\n540.633 .7925\nCounsel\nMilan B. Tolley\nManager, Paralegal\nmilan.tolley@thirdsecurity.com\n540.633 .7932\nServices	EX-99.D.6 10 y31044exv99wdw6.htm EX-99.D.6: NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nNON- DISCLOSURE & CONFIDENTIALITY AGREEMENT\nTwais Non-Discrosure & ConriDENTIALITY AGREEMENT (hereinafter this “Agreement™”) is made and entered into as of the 28th day of November,\n2006 (hereinafter “Effective Date”), by and between Shire Pharmaceuticals, Inc., a Delaware corporation having a principal place of business at\n725 Chesterbrook Boulevard, Wayne, PA 19087 (“SHIRE”), L.E.K. Consulting LLC, 28 State Street, 16th Floor, Boston, Massachusetts 02109\n(“L.E.K.”), and New River Pharmaceuticals Inc., a Virginia corporation with offices located at The Governor Tyler, 1881 Grove Avenue,\nRadford, Virginia 24141 (“NEW RIVER?”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties™).\nRecitals\nWHEREAs the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and\nNEW RIVER may enter into a business relationship or may enter into one or more business transactions related to “Project Night” (hereinafter\ncollectively referred to as the “Business Purpose”);\nWhHhEereas SHIRE has engaged L.E.K. to assist SHIRE in its discussions and evaluations in connection with the Business Purpose;\nWHEREAs the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW\nRIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing,\ngraphically, electronically or by visual inspection of the premises of the Disclosing Party, and\nWHEREAs the Parties intend that any Confidential Information disclosed by either NEW RIVER or SHIRE shall be used by any other Party\nonly to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized\nparties by the terms of this Agreement.\nNow, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions,\ncovenants and warranties herein contained, the Parties agree as follows:\n1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:\n(a) “Confidential Information” shall mean commercial, corporate, scientific, regulatory and technical information, including, without\nlimitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed\nproducts, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions of\nthe information disclosed, relating to NEW\nCONFIDENTIAL\nRIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and\nproprietary property. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various\nelements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be\nin the Receiving Party’s possession or to be thereafter acquired by the Receiving Party merely because it embraces information in the public\ndomain or general information that the Receiving Party may thereafter acquire.\n(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.\n(c) “Receiving Party” Shall mean the Party receiving disclosure of the Confidential Information.\n(d) It is specifically understood and agreed that Confidential Information shall include the existence of this Agreement and its terms and the\nfact that the Parties are discussing and evaluating the Business Purpose.\n2. Applicability. This Agreement shall apply to all Confidential Information disclosed by the Disclosing Party to the Receiving Party, and\nConfidential Information shall include extracts, analyses, compilations, studies or other documents or records prepared by or for the Receiving\nParty or any of Receiving Party’s Representatives (defined in Paragraph 4) to the extent that such extracts, analyses, compilations, studies,\ndocuments or records contain or otherwise reflect or are generated from the Disclosing Party’s Confidential Information.\n3. Non-Disclosure Obligation. Each Party agrees:\n(a) to hold the other Party’s Confidential Information in strict confidence in accordance with this Agreement;\n(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to\nits own Confidential Information (but in no event less than reasonable care);\n(c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors\nand consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and\n(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the\nDisclosing Party.\n4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities.\n(a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its\ndirectors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality\nCONFIDENTIAL\nPage 2 of 7\nconsistent with this Agreement, who have a bona fide need to know (“Representatives™), but only to the extent necessary to carry out the\nBusiness Purpose. Each Party agrees to instruct all such Representatives (i) of the identities of the Party’s other permitted Representatives, and\n(ii) not to disclose such Confidential Information to any third parties (including, without limitation, any clients, affiliates, subsidiaries,\nindependent contractors, and consultants) other than the identified Representatives without the prior written permission of the Disclosing Party.\nThe Receiving Party shall be responsible for the conduct and compliance of its Representatives under this Agreement.\n(b) SHIRE shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit A\nhereto, the L.E.K. Representatives identified on Exhibit B hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.\n(c) L.E.K. shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit B\nhereto, the SHIRE Representatives identified on Exhibit A hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.\n(d) NEW RIVER shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on\nExhibit C hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the L.E.K. Representatives identified on Exhibit B hereto.\n(e) In assisting SHIRE in discussions and evaluations in connection with the Business Purpose, L.E.K. may be communicating with NEW\nRIVER employees, consultants, or contractors not identified as NEW RIVER Representatives on Exhibit C hereto. In all such communications,\nL.E.K. shall not disclose the name of its client or otherwise permit any communication or disclosure that could result in such NEW RIVER\nemployees, consultants, or contractors identifying SHIRE as having any involvement in the work being performed by L.E.K.\n5. Non-Confidential Information. The confidentiality and non-use provisions of this Agreement shall not include information that the\nReceiving Party is able to demonstrate by competent proof:\n(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the\nindustry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the\nReceiving Party;\n(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving\nParty’s written records;\n(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or\ndisclosure;\nCONFIDENTIAL\nPage 3 of 7\n(d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to\nConfidential Information acquired from the Disclosing Party;\n(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that\n(i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and\n(ii) Receiving Party shall have informed the requesting authority of the confidential nature of the information and used reasonable efforts to\nobtain confidential treatment for the information required to be disclosed; or\n(f) is disclosed with the prior, written consent of the Disclosing Party specifically authorizing such disclosure by the Receiving Party.\n6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other Party’s\nConfidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any\nand all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation,\nthat the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made\nwithout the consent of the Disclosing Party.\n7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party\nall materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof; provided, however, Receiving\nParty’s legal department or outside legal counsel may maintain a single copy of Disclosing Party’s Confidential Information for purposes of\nregulatory compliance and compliance with the terms and conditions of this Agreement.\n8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nthe Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party or its Representative, and will cooperate\nwith the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party to regain possession of the Confidential Information\nand prevent its further unauthorized use or disclosure.\n9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to\nthe Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except for the Business Purpose.\n10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter\ninto any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or\nCONFIDENTIAL\nPage 4 of 7\nlicense under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party.\n11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the\nDisclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm\nand significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy.\nAccordingly, each Party agrees that the Disclosing Party shall have the right to seek an immediate injunction from any court of competent\njurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information\nwithout the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at\nlaw or equity for such a breach.\n \n12. Term. This Agreement shall become effective upon the effective Date and shall remain in effect for five (5) years from the Effective Date\nunless extended by the written consent of the Parties.\n13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and\nfollowed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or\n(b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows.\n \nIf to NEW RIVER:\nNew River Pharmaceuticals Inc.\nThe Governor Tyler\n1881 Grove Ave\nRadford, VA 24141\nAttention: Legal Department\nFax No.: (540) 633-7939\nIf to SHIRE:\nShire Pharmaceuticals, Inc.\n725 Chesterbrook Boulevard\nWayne, PA 19087\nAttention: Legal Department\nFax No.: 484-595-8163\nCONFIDENTIAL\nPage 5 of 7\nIf to LEK.:\nL.E.K. Consulting LLC\n28 State Street\n16th Floor\nBoston, MA 02109\nAttention: Mike Clabault\nFax No.: 617-951-9392\nAny party may change its address for notices by giving the other party notice of such change in the manner provided above.\n14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6,\nsets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by a\nwritten agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the\nParties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and\n(b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC,\nShire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005,\nby and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the\nexecution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each.\n15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this\nAgreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by mutual agreement of the\nParties in writing by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or\nunenforceable term or provision.\n16. Governing Law. The validity and interpretation of this Agreement shall be governed by, construed and enforced in accordance with, the\nlaws of the State of New York applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof).\n17. Waiver. No waiver by either Party of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of\nany other provision of this Agreement. No waiver by either Party of any breach or default by the other Party, shall constitute a waiver of any\nother breach or default of the same or any other provision of this Agreement. No waiver of any provision, breach or default shall be effective\nunless made in writing and signed by an authorized representative of the Party against whom waiver is sought.\n18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it has the\nright to permit the other Party to evaluate\nCONFIDENTIAL\nPage 6 of 7\nthe Confidential Information in accordance herewith; and (c) the terms of this Agreement are not inconsistent with any other contractual or legal\nobligation it may have.\n19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange\nfacsimile copies of this Agreement, all of which taken together shall constitute one agreement.\n20. Insider Trading. Each Party acknowledges that (a) the Disclosing Party’s Confidential Information may represent material, non-public\ninformation of the Disclosing Party; (b) federal securities laws prohibit anyone who is in possession of material, non-public information from\npurchasing or selling the Disclosing Party’s securities on the basis of material, non-public information of the Disclosing Party; and (c) each Party\nshall comply with all applicable securities laws and regulations with respect to material, non-public information of the Disclosing Party disclosed\nunder this Agreement.\n21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs,\nexecutors, administrators and permitted assigns. Neither Party may assign this Agreement in whole or in part or delegate its obligations under\nthis Agreement in whole or in part without the prior written consent of the other Party.\n22. Press Releases; Use of Trademarks. Neither Party shall (a) issue a press release or make any other public statement that references this\nAgreement, or (b) use the other Party’s names or trademarks for publicity or advertising purposes, except with the prior written consent of the\nother Party.\n23. Amendment; Modification. This Agreement may not be amended, modified, altered or supplemented except by a writing signed by both\nParties.\nIn WiTnEss WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.\nNEW RIVER PHARMACEUTICALS INC. L.E.K. CONSULTING LLC\nBy: |, _-s- Randal J. Kirk By: |4 _-s- Jon Piper\nName: Randal J. Kirk Name: Jon Piper\nTitle: President & CEO Title: Vice President\nSHIRE PHARMACEUTICALS, INC\nBy: |- XXXXX\nName: Scott Applebaum\nTitle: Secretary\nCONFIDENTIAL\nPage 7 of 7\nL.E.K. Team\nName\nMarc Kozin\nJonathan Piper\nSteven Rosner\nJonathan Chou\nDavid Maier\nBrian Sze\nJonathan Rupp\nBeth Goldberg\nEwa Hart\nErika Jenkins\nAndrea McNaughton\nL.E.K. Boston Main\nL.E.K. Boston Fax\nLEK Confidential\nLEK Team Contacts Title\nVice President\nVice President\nVice President\nManager\nConsultant\nAssociate Consultant\nAssociate\nExec Assist to M. Kozin\nExec Assist to J. Piper\nExec Assist to S. Rosner\nExec Assist to J. Chou\n11/30/2006 Email\nm.kozin@lek.com\nj.piper@lek.com\ns.rosner@lek.com\nj.chou@lek.com\nd.maier@lek.com\nb.sze@lek.com\nj.rupp@lek.com\n \n \n \n \n \n \n \nb.goldberg@lek.com\ne.hart@lek.com\ne.jenkins@lek.com\na.mcnaughton@Jlek.com\n \n \n \n \nWork Phone\n617-951-9545\n617-951-9627\n617-951-9556\n617-951-9666\n617-951-9526\n617-951-9586\n617-951-9662\n617-951-9515\n617-951-9682\n617-951-9559\n617-951-9638\n617-951-9500\n617-951-9392\nPage 1\nShire Project Team\nMatthew Emmens\nAngus Russell\nMike Cola\nBarbara Deptula\nTatjana May\nScott Applebaum\nSimon Gibbins\nGwen Melincoff\nCraig Lewis\nDavid Baker\nSuzanne Hare\nRob Lutz\nJanice Hall\nCherise Kent\nJonathan Poole\nJay Glasscott\nFinbarr Obinyan\nChris Janssen\nExhibit A\nTo the Non-Disclosure & Confidentiality\nAgreement by and between\nShire Pharmaceuticals Inc\nL.E.K. Consulting LLC\nNew River Pharmaceuticals Inc\nwith the Effective Date of 28 November 2006\nL.E.K. Team\nName\nMarc Kozin\nJonathan Piper\nSteven Rosner\nJonathan Chou\nDavid Maier\nBrian Sze\nJonathan Rupp\nBeth Goldberg\nEwa Hart\nErika Jenkins\nAndrea McNaughton\nL.E.K. Boston Main\nL.E.K. Boston Fax\nLEK Confidential\nLEK Team Contacts Title\nVice President\nVice President\nVice President\nManager\nConsultant\nAssociate Consultant\nAssociate\nExec Assist to M. Kozin\nExec Assist to J. Piper\nExec Assist to S. Rosner\nExec Assist to J. Chou\n12/6/2006\nEmail\nm.kozin@lek.com\nj:piper@lek.com\ns.rosner@lek.com\nj.chou@lek.com\nd.maier@.lek.com\nb.sze@lek.com\nj-rupp@lek.com\nb.goldberg@lek.com\ne.hart@lek.com\ne.jenkins@lek.com\na.mcnaughton@lek.com\nWork Phone\n617-951-9545 617-951-9627\n617-951-9556\n617-951-9666\n617-951-9526\n617-951-9586\n617-951-9662\n617-951-9515\n617-951-9682\n617-951-9559\n617-951-9638\n617-951-9500\n617-951-9392\nPage 1\fNon-Disclosure & Confidentiality Agreement among Shire, L.E.K. and New River dated November 28, 2006. Name\nRandal J. Kirk\nKrish S. Krishnan\nSuma M. Krishnan\nCliff Herndon\nMarcus E. Smith\nTad Fisher\nReade Williams\nMilan B. Tolley\nNEW RIVER REPRESENTATIVES Title\nChairman, President\nand Chief Executive\nOfficer\nChief Operating\nOfficer, Chief\nFinancial Officer\nand Secretary\nVice President,\nProduct Development Vice President,\nFinance and\nController\nSenior Managing\nDirector and\nGeneral Counsel\nManaging Director\nand Associate\nGeneral Counsel\nAssociate General\nCounsel\nManager, Paralegal\nServices\nEmail\n1j.kirk@nrpharma.com\nkrish.krishnan@nrpharma.com\nskrishnan@nrpharma.com\ncliff. herndon@thirdsecurity.com\nLegal Department personnel at Third Security, LLC marcus.smith@thirdsecurity.com\n \ntad.fisher@thirdsecurity.com\n \nreade.williams@thirdsecurity.com\n \nmilan.tolley@thirdsecurity.com\nExhibit C\nWork Phone\n540.633.7978 540.633.7978\n540.633.7978\n540.633.7922\n540.633.7971\n540.633.7951\n540.633.7925\n540.633.7932	EX-99.D.6 10 y31044exv99wdw6.htm EX-99.D.6: NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nON-DISCLOSURE & CONFIDENTIALITY AGREEMENT\nTHIs NON-DISCLOSURE & CONFIDENTIALITY AGREEMENT (hereinafter this "Agreement") is made and entered into as of the 28th day of November,\n2006 (hereinafter "Effective Date"), by and between Shire Pharmaceuticals, Inc., a Delaware corporation having a principal place of business at\n725 Chesterbrook Boulevard, Wayne, PA 19087 ("SHIRE"), L.E.K. Consulting LLC, 28 State Street, 16th Floor, Boston, Massachusetts 02109\n("L.E.K."), and New River Pharmaceuticals Inc., a Virginia corporation with offices located at The Governor Tyler, 1881 Grove Avenue,\nRadford, Virginia 24141 ("NEW RIVER") (each individually hereinafter referred to as a "Party" and collectively referred to as "Parties").\nRecitals\nWHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and\nNEW RIVER may enter into a business relationship or may enter into one or more business transactions related to "Project Night" (hereinafter\ncollectively referred to as the "Business Purpose");\nWHEREAS SHIRE has engaged L.E.K. to assist SHIRE in its discussions and evaluations in connection with the Business Purpose;\nWHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW\nRIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing,\ngraphically, electronically or by visual inspection of the premises of the Disclosing Party, and\nWHEREAS the Parties intend that any Confidential Information disclosed by either NEW RIVER or SHIRE shall be used by any other Party\nonly to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized\nparties by the terms of this Agreement.\nNow, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions,\ncovenants and warranties herein contained, the Parties agree as follows:\n1. Definitions For purposes of this Agreement, the terms below shall have the following meanings:\n(a) "Confidential Information" shall mean commercial, corporate, scientific, regulatory and technical information, including, without\nlimitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed\nproducts, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions\nof\nthe information disclosed, relating to NEW\nCONFIDENTIAL\nRIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and\nproprietary property. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various\nelements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be\nin the Receiving Party's possession or to be thereafter acquired by the Receiving Party merely because it embraces information in the public\ndomain or general information that the Receiving Party may thereafter acquire.\n(b) "Disclosing Party" shall mean the Party disclosing Confidential Information.\n(c) "Receiving Party" Shall mean the Party receiving disclosure of the Confidential Information.\n(d) It is specifically understood and agreed that Confidential Information shall include the existence of this Agreement and its terms and the\nfact that the Parties are discussing and evaluating the Business Purpose.\n2. Applicability.. This Agreement shall apply to all Confidential Information disclosed by the Disclosing Party to the Receiving Party, and\nConfidential Information shall include extracts, analyses, compilations, studies or other documents or records prepared by or for the Receiving\nParty or any of Receiving Party's Representatives (defined in Paragraph 4) to the extent that such extracts, analyses, compilations, studies,\ndocuments or records contain or otherwise reflect or are generated from the Disclosing Party's Confidential Information.\n3. Non-Disclosure Obligation. Each Party agrees:\n(a) to hold the other Party's Confidentia Information in strict confidence in accordance with this Agreement;\n(b) to exercise at least the same care in protecting the other Party's Confidential Information from disclosure as the Party uses with regard to\nits own Confidentia Information (but in no event less than reasonable care);\n(c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors\nand consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and\n(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the\nDisclosing Party.\n4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities.\n(a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party's Confidentia Information to its\ndirectors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality\nCONFIDENTIAL\nPage 2 of 7\nconsistent with this Agreement, who have a bona fide need to know ("Representatives"), but only to the extent necessary to carry out the\nBusiness Purpose. Each Party agrees to instruct all such Representatives (i) of the identities of the Party's other permitted Representatives, and\n(ii) not to disclose such Confidential Information to any third parties (including, without limitation, any clients, affiliates, subsidiaries,\nindependent contractors, and consultants) other than the identified Representatives without the prior written permission of the Disclosing Party.\nThe Receiving Party shall be responsible for the conduct and compliance of its Representatives under this Agreement.\n(b) SHIRE shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit A\nhereto, the L.E.K. Representatives identified on Exhibit B hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.\n(c) L.E.K. shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit\nB\nhereto, the SHIRE Representatives identified on Exhibit A hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.\n(d) NEW RIVER shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on\nExhibit C hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the L.E.K. Representatives identified on Exhibit B hereto.\n(e) In assisting SHIRE in discussions and evaluations in connection with the Business Purpose, L.E.K. may be communicating with NEW\nRIVER employees, consultants, or contractors not identified as NEW RIVER Representatives on Exhibit C hereto. In all such communications,\nL.E.K. shall not disclose the name of its client or otherwise permit any communication or disclosure that could result in such NEW RIVER\nemployees, consultants, or contractors identifying SHIRE as having any involvement in the work being performed by L.E.K.\n5. Non-Confidential Information. The confidentiality and non-use provisions of this Agreement shall not include information that the\nReceiving Party is able to demonstrate by competent proof:\n(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the\nindustry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the\nReceiving Party;\n(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving\nParty's written records;\n(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or\ndisclosure;\nCONFIDENTIAL\nPage 3 of 7\n(d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to\nConfidential Information acquired from the Disclosing Party;\n(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that\n(i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and\n(ii) Receiving Party shall have informed the requesting authority of the confidential nature of the information and used reasonable efforts to\nobtain confidential treatment for the information required to be disclosed; or\n(f) is disclosed with the prior, written consent of the Disclosing Party specifically authorizing such disclosure by the Receiving Party.\n6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other Party's\nConfidential Information from the premises of the Disclosing Party without the Disclosing Party's consent. Each Party agrees to comply with any\nand all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation,\nthat the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made\nwithout the consent of the Disclosing Party.\n7.\nReturn of Confidential Information. Upon the Disclosing Party's request, the Receiving Party will promptly return to the Disclosing Party\nall materials or tangible items containing the Disclosing Party's Confidential Information and all copies thereof; provided, however, Receiving\nParty's legal department or outside legal counsel may maintain a single copy of Disclosing Party's Confidential Information for purposes of\nregulatory compliance and compliance with the terms and conditions of this Agreement.\n8. Notification The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nthe Disclosing Party's Confidential Information, or any breach of the Agreement by the Receiving Party or its Representative, and will cooperate\nwith the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party to regain possession of the Confidential Information\nand prevent its further unauthorized use or disclosure.\n9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to\nthe Receiving Party, by license or otherwise, to use any of the Disclosing Party's Confidential Information except for the Business Purpose.\n10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter\ninto any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or\nCONFIDENTIAL\nPage 4 of 7\nlicense under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party.\n11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party's Confidential Information is owned solely by the\nDisclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm\nand significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy.\nAccordingly, each Party agrees that the Disclosing Party shall have the right to seek an immediate injunction from any court of competent\njurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information\nwithout the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available\nat\nlaw or equity for such a breach.\n12. Term. This Agreement shall become effective upon the effective Date and shall remain in effect for five (5) years from the Effective Date\nunless extended by the written consent of the Parties.\n13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and\nfollowed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or\n(b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows.\nIf to NEW RIVER:\nNew River Pharmaceuticals Inc.\nThe Governor Tyler\n1881 Grove Ave\nRadford, VA 24141\nAttention: Legal Department\nFax No.: (540) 633-7939\nIf to SHIRE:\nShire Pharmaceuticals, Inc.\n725 Chesterbrook Boulevard\nWayne, PA 19087\nAttention: Legal Department\nFax No.: 484-595-8163\nCONFIDENTIAL\nPage 5 of 7\nIf to L.E.K.:\nL.E.K. Consulting LLC\n28 State Street\n16th Floor\nBoston, MA 02109\nAttention: Mike Clabault\nFax No.: 617-951-9392\nAny party may change its address for notices by giving the other party notice of such change in the manner provided above.\n14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6,\nsets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by\na\nwritten agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the\nParties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and\n(b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC,\nShire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005,\nby and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the\nexecution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each.\n15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this\nAgreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by mutual agreement of the\nParties in writing by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or\nunenforceable term or provision.\n16. Governing Law. The validity and interpretation of this Agreement shall be governed by, construed and enforced in accordance with, the\nlaws of the State of New York applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof).\n17. Waiver. No waiver by either Party of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver\nof\nany other provision of this Agreement. No waiver by either Party of any breach or default by the other Party, shall constitute a waiver of any\nother breach or default of the same or any other provision of this Agreement. No waiver of any provision, breach or default shall be effective\nunless made in writing and signed by an authorized representative of the Party against whom waiver is sought.\n18. Binding Authority.. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it has the\nright to permit the other Party to evaluate\nCONFIDENTIAL\nPage 6 of 7\nthe Confidential Information in accordance herewith; and (c) the terms of this Agreement are not inconsistent with any other contractual or legal\nobligation it may have.\n19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange\nfacsimile copies of this Agreement, all of which taken together shall constitute one agreement.\n20. Insider Trading. Each Party acknowledges that (a) the Disclosing Party's Confidential Information may represent material, non-public\ninformation of the Disclosing Party; (b) federal securities laws prohibit anyone who is in possession of material, non-public information from\npurchasing or selling the Disclosing Party's securities on the basis of material, non-public information of the Disclosing Party; and (c) each Party\nshall comply with all applicable securities laws and regulations with respect to material, non-public information of the Disclosing Party disclosed\nunder this Agreement.\n21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs,\nexecutors, administrators and permitted assigns. Neither Party may assign this Agreement in whole or in part or delegate its obligations under\nthis Agreement in whole or in part without the prior written consent of the other Party.\n22. Press Releases; Use of Trademarks. Neither Party shall (a) issue a press release or make any other public statement that references this\nAgreement, or (b) use the other Party's names or trademarks for publicity or advertising purposes, except with the prior written consent of the\nother Party.\n23. Amendment; Modification. This Agreement may not be amended, modified, altered or supplemented except by a writing signed by both\nParties.\nIN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.\nNEW RIVER PHARMACEUTICALS INC.\nL.E.K. CONSULTING LLC\nBy:\nRandal J. Kirk\nBy:\nJon Piper\nName: Randal J. Kirk\nName: Jon Piper\nTitle: President & CEO\nTitle: Vice President\nSHIRE PHARMACEUTICALS INC\nBy: XXXXX\nName: Scott Applebaum\nTitle: Secretary\nCONFIDENTIAL\nPage 7 of 7\nLEK Team Contacts\nL.E.K. Team\nName\nTitle\nEmail\nWork Phone\nMarc Kozin\nVice President\nm.kozin@lek.com\n617-951-9545\nJonathan Piper\nVice President\nj.piper@lek.com\n617-951-9627\nSteven Rosner\nVice President\ns.rosner@lek.com\n617-951-9556\nJonathan Chou\nManager\nj.chou@lek.com\n617-951-9666\nDavid Maier\nConsultant\nd.maier@lek.com\n617-951-9526\nBrian Sze\nAssociate Consultant\nb.sze@lek.com\n617-951-9586\nJonathan Rupp\nAssociate\nj.rupp@lek.com\n617-951-9662\nBeth Goldberg\nExec Assist to M. Kozin\nb.goldberg@lek.com\n617-951-9515\nEwa Hart\nExec Assist to J. Piper\ne.hart@lek.com\n617-951-9682\nErika Jenkins\nExec Assist to S. Rosner\ne.jenkins@lek.com\n617-951-9559\nAndrea McNaughton\nExec Assist to J. Chou\na.mcnaughton@lek.com\n617-951-9638\nL.E.K. Boston Main\n617-951-9500\nL.E.K. Boston Fax\n617-951-9392\nLEK Confidential\n11/30/2006\nPage 1\nExhibit A\nTo the Non-Disclosure & Confidentiality\nAgreement by and between\nShire Pharmaceuticals Inc\nL.E.K. Consulting LLC\nNew River Pharmaceuticals Inc\nwith the Effective Date of 28 November 2006\nShire Project Team\nMatthew Emmens\nAngus Russell\nMike Cola\nBarbara Deptula\nTatjana May\nScott Applebaum\nSimon Gibbins\nGwen Melincoff\nCraig Lewis\nDavid Baker\nSuzanne Hare\nRob Lutz\nJanice Hall\nCherise Kent\nJonathan Poole\nJay Glasscott\nFinbarr Obinyan\nChris Janssen\nLEK Team Contacts\nL.E.K. Team\nName\nTitle\nEmail\nWork Phone\nMarc Kozin\nVice President\nm.kozin@lek.com\n617-951-9545\nJonathan Piper\nVice President\nj.piper@lek.com\n617-951-9627\nSteven Rosner\nVice President\ns.rosner@lek.com\n617-951-9556\nJonathan Chou\nManager\nj.chou@lek.com\n617-951-9666\nDavid Maier\nConsultant\nd.maier@.lek.com\n617-951-9526\nBrian Sze\nAssociate Consultant\nb.sze@lek.com\n617-951-9586\nJonathan Rupp\nAssociate\nj.rupp@lek.com\n617-951-9662\nBeth Goldberg\nExec Assist to M. Kozin\nb.goldberg@lek.com\n617-951-9515\nEwa Hart\nExec Assist to J. Piper\ne.hart@lek.com\n617-951-9682\nErika Jenkins\nExec Assist to S. Rosner\ne.jenkins@lek.com\n617-951-9559\nAndrea McNaughton\nExec Assist to J. Chou\na.mcnaughton@lek.com\n617-951-9638\nL.E.K. Boston Main\n617-951-9500\nL.E.K. Boston Fax\n617-951-9392\nLEK Confidential\n12/6/2006\nPage 1\nNon-Disclosure & Confidentiality Agreement among Shire, L.E.K. and New River dated November 28, 2006.\nExhibit C\nNEW RIVER REPRESENTATIVES\nName\nTitle\nEmail\nWork Phone\nRandal J. Kirk\nChairman, President\nrj.kirk@nrpharma.com\n540.633.7978\nand Chief Executive\nOfficer\nKrish S. Krishnan\nChief Operating\nkrish.krishnan@nrpharma.com\n540.633.7978\nOfficer, Chief\nFinancial Officer\nand Secretary\nSuma M. Krishnan\nVice President,\nskrishnan@nrpharma.com\n540.633.7978\nProduct Development\nCliff Herndon\nVice President,\ncliff.herndon@thirdsecurity.com\n540.633.7922\nFinance and\nController\nLegal Department personnel at Third Security, LLC\nMarcus E. Smith\nSenior Managing\nmarcus.smith@thirdsecurity.com\n540.633.7971\nDirector and\nGeneral Counsel\nTad Fisher\nManaging Director\ntad.fisher@thirdsecurity.com\n540.633.7951\nand Associate\nGeneral Counsel\nReade Williams\nAssociate General\nreade.williams@thirdsecurity.com\n540.633.7925\nCounsel\nMilan B. Tolley\nManager, Paralegal\nmilan.tolley.@thirdsecurity.com\n540.633.7932\nServices	EX-99.D.6 10 y31044exv99wdw6.htm EX-99.D.6: NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nNON- DISCLOSURE & CONFIDENTIALITY AGREEMENT\nTHIS NON-DISCLOSURE & CONFIDENTIALITY AGREEMENT (hereinafter this “Agreement”) is made and entered into as of the 28th day of November,\n2006 (hereinafter “Effective Date”), by and between Shire Pharmaceuticals, Inc., a Delaware corporation having a principal place of business at\n725 Chesterbrook Boulevard, Wayne, PA 19087 (“SHIRE”), L.E .K. Consulting LLC, 28 State Street, 16th Floor, Boston, Massachusetts 02109\n(“L.E.K.”), and New River Pharmaceuticals Inc., a Virginia corporation with offices located at The Governor Tyler, 1881 Grove Avenue,\nRadford, Virginia 24141 (“NEW RIVER”) (each individually hereinafter referred to as a “Party” and collectively referred to as “Parties”).\nRecitals\nWHEREAS the Parties intend to engage in discussions and evaluations concerning one or more potential arrangements by which SHIRE and\nNEW RIVER may enter into a business relationship or may enter into one or more business transactions related to “Project Night” (hereinafter\ncollectively referred to as the “Business Purpose”);\nWHEREAS SHIRE has engaged L.E.K . to assist SHIRE in its discussions and evaluations in connection with the Business Purpose;\nWHEREAS the Parties recognize that in the course of their discussions to further the Business Purpose, it may become necessary for either NEW\nRIVER or SHIRE or both Parties to disclose Confidential Information (as defined below) to a Receiving Party, whether orally, in writing,\ngraphically, electronically or by visual inspection of the premises of the Disclosing Party, and\nWHEREAS the Parties intend that any Confidential Information disclosed by either NEW RIVER or SHIRE shall be used by any other Party\nonly to further the Business Purpose and that any Confidential Information disclosed shall be protected from further disclosure to unauthorized\nparties by the terms of this Agreement.\nNOW, THEREFORE, in consideration of the discussions and the sharing of information between the Parties, and the premises, conditions,\ncovenants and warranties herein contained, the Parties agree as follows:\n1. Definitions. For purposes of this Agreement, the terms below shall have the following meanings:\n(a) “Confidential Information” shall mean commercial, corporate, scientific, regulatory and technical information, including, without\nlimitation, data, materials, documents, agreements, lists, financial information, investments, information concerning current or proposed\nproducts, technologies, applications, service or methods of operation and/or business plans, customers, suppliers, and any copies or versions of\nthe information disclosed, relating to NEW\nCONFIDENTIAL\nRIVER or SHIRE, that NEW RIVER or SHIRE, respectively, regards as its highly valuable trade secrets, confidential information, and\nproprietary property. Where any Confidential Information is derived from the synthesis in a unique manner, or into a unique concept, of various\nelements that may be contained in the public domain, no part of the Confidential Information shall be deemed to be in the public domain or to be\nin the Receiving Party’s possession or to be thereafter acquired by the Receiving Party merely because it embraces information in the public\ndomain or general information that the Receiving Party may thereafter acquire.\n(b) “Disclosing Party” shall mean the Party disclosing Confidential Information.\n(c) “Receiving Party” Shall mean the Party receiving disclosure of the Confidential Information.\n(d) It is specifically understood and agreed that Confidential Information shall include the existence of this Agreement and its terms and the\nfact that the Parties are discussing and evaluating the Business Purpose.\n2. Applicability. This Agreement shall apply to all Confidential Information disclosed by the Disclosing Party to the Receiving Party, and\nConfidential Information shall include extracts, analyses, compilations, studies or other documents or records prepared by or for the Receiving\nParty or any of Receiving Party’s Representatives (defined in Paragraph 4) to the extent that such extracts, analyses, compilations, studies,\ndocuments or records contain or otherwise reflect or are generated from the Disclosing Party’s Confidential Information.\n3. Non-Disclosure Obligation. Each Party agrees:\n(a) to hold the other Party’s Confidential Information in strict confidence in accordance with this Agreement;\n(b) to exercise at least the same care in protecting the other Party’s Confidential Information from disclosure as the Party uses with regard to\nits own Confidential Information (but in no event less than reasonable care);\n(c) not to disclose such Confidential Information to third parties (including, without limitation, any clients, affiliates, independent contractors\nand consultants) without the prior, written consent of the Disclosing Party except as expressly permitted under Paragraph 4; and\n(d) not to use any Confidential Information for any purpose except for the Business Purpose without the prior written consent of the\nDisclosing Party.\n4. Disclosure to Representatives, Conduct of Activities, and Prohibited Activities.\n(a) Subject to the restrictions set forth below in this Section 4, each Party may disclose the other Party’s Confidential Information to its\ndirectors, officers, employees, legal advisors, financial advisors and accountants, each bound by obligations of confidentiality\nCONFIDENTIAL\nPage2of7\nconsistent with this Agreement, who have a bona fide need to know (“Representatives”), but only to the extent necessary to carry out the\nBusiness Purpose. Each Party agrees to instruct all such Representatives (i) of the identities of the Party’s other permitted Representatives, and\n(ii) not to disclose such Confidential Information to any third parties (including, without limitation, any clients, affiliates, subsidiaries,\nindependent contractors, and consultants) other than the identified Representatives without the prior written permission of the Disclosing Party.\nThe Receiving Party shall be responsible for the conduct and compliance of its Representatives under this Agreement.\n(b) SHIRE shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit A\nhereto, the L.E.K. Representatives identified on Exhibit B hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.\n(c) L.E .K. shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on Exhibit B\nhereto, the SHIRE Representatives identified on Exhibit A hereto, or to the NEW RIVER Representatives identified on Exhibit C hereto.\n(d) NEW RIVER shall not disclose the existence of this Agreement or the related discussions except to its Representatives identified on\nExhibit C hereto, the SHIRE Representatives identified on Exhibit A hereto, or to the L.E.K. Representatives identified on Exhibit B hereto.\n(e) In assisting SHIRE in discussions and evaluations in connection with the Business Purpose, L.E .K. may be communicating with NEW\nRIVER employees, consultants, or contractors not identified as NEW RIVER Representatives on Exhibit C hereto. In all such communications,\nL.E .K. shall not disclose the name of its client or otherwise permit any communication or disclosure that could result in such NEW RIVER\nemployees, consultants, or contractors identifying SHIRE as having any involvement in the work being performed by L.E.K.\n5. Non-Confidential Information. The confidentiality and non-use provisions of this Agreement shall not include information that the\nReceiving Party is able to demonstrate by competent proof:\n(a) is now or hereafter becomes, through no act or omission on the part of the Receiving Party, generally known or available within the\nindustry without restriction as to its use or disclosure, or is now or later enters the public domain through no act or omission on the part of the\nReceiving Party;\n(b) was acquired or known by the Receiving Party before receiving such information from the Disclosing Party as shown by the Receiving\nParty’s written records;\n(c) is hereafter rightfully furnished to the Receiving Party by a third party having a right to disclose it, without restriction as to use or\ndisclosure;\nCONFIDENTIAL\nPage3of7\n(d) is information that the Receiving Party can document was independently developed by or for the Receiving Party without reference to\nConfidential Information acquired from the Disclosing Party;\n(e) is required by a court or other governmental authority of competent jurisdiction to be disclosed by the Receiving Party, provided that\n(i) the Receiving Party shall have used reasonable efforts to give the Disclosing Party prompt notice of any required disclosure, and\n(ii) Receiving Party shall have informed the requesting authority of the confidential nature of the information and used reasonable efforts to\nobtain confidential treatment for the information required to be disclosed; or\n(f) is disclosed with the prior, written consent of the Disclosing Party specifically authorizing such disclosure by the Receiving Party.\n6. Removal of Confidential Materials. Each Party agrees not to remove any materials or tangible items containing any of the other Party’s\nConfidential Information from the premises of the Disclosing Party without the Disclosing Party’s consent. Each Party agrees to comply with any\nand all terms and conditions that the Disclosing Party imposes upon approved removal of such materials or items, including, without limitation,\nthat the removed materials or items must be returned by a certain date, and that no copies of the removed materials or items are to be made\nwithout the consent of the Disclosing Party.\n7. Return of Confidential Information. Upon the Disclosing Party’s request, the Receiving Party will promptly return to the Disclosing Party\nall materials or tangible items containing the Disclosing Party’s Confidential Information and all copies thereof; provided, however, Receiving\nParty’s legal department or outside legal counsel may maintain a single copy of Disclosing Party’s Confidential Information for purposes of\nregulatory compliance and compliance with the terms and conditions of this Agreement.\n8. Notification. The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nthe Disclosing Party’s Confidential Information, or any breach of the Agreement by the Receiving Party or its Representative, and will cooperate\nwith the Disclosing Party in any reasonable fashion in order to assist the Disclosing Party to regain possession of the Confidential Information\nand prevent its further unauthorized use or disclosure.\n9. No Grant of Rights. Each Party recognizes and agrees that nothing contained in this Agreement will be construed as granting any rights to\nthe Receiving Party, by license or otherwise, to use any of the Disclosing Party’s Confidential Information except for the Business Purpose.\n10. Limitation As To Effect. Nothing contained in this Agreement shall be construed, by implication or otherwise, as an obligation to enter\ninto any further agreement, and nothing contained in this Agreement shall be construed, by implication or otherwise, as a grant, option, or\nCONFIDENTIAL\nPage4of7\nlicense under any patent, trade secret, copyright, trademark, or other proprietary rights of either Party.\n11. Equitable and Legal Relief. Each Party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the\nDisclosing Party (and/or its licensors) and that the unauthorized disclosure or use of such Confidential Information may cause irreparable harm\nand significant injury, the degree of which may be difficult to ascertain and for which monetary damages would provide an insufficient remedy.\nAccordingly, each Party agrees that the Disclosing Party shall have the right to seek an immediate injunction from any court of competent\njurisdiction enjoining actual or threatened breach of this Agreement and/or actual or threatened disclosure of the Confidential Information\nwithout the necessity of posting a bond or other security. Each Party shall also have the right to pursue any other rights or remedies available at\nlaw or equity for such a breach.\n12. Term. This Agreement shall become effective upon the effective Date and shall remain in effect for five (5) years from the Effective Date\nunless extended by the written consent of the Parties.\n13. Notice. All notices under this Agreement shall be in writing and shall be deemed duly given if sent by fax copy as directed below and\nfollowed by hard copy, dispatched on the same day (a) by a nationally reputable delivery service, prepaid and addressed as set forth below, or\n(b) by certified or registered mail, return receipt requested, postage prepaid, and addressed as follows.\nIf to NEW RIVER:\nNew River Pharmaceuticals Inc.\nThe Governor Tyler\n1881 Grove Ave\nRadford, VA 24141\nAttention: Legal Department\nFax No.: (540) 633-7939\nIf to SHIRE:\nShire Pharmaceuticals, Inc.\n725 Chesterbrook Boulevard\nWayne, PA 19087\nAttention: Legal Department\nFax No.: 484-595-8163\nCONFIDENTIAL\nPage5of7\nIf to L.E .K.:\nL.E .K. Consulting LLC\n28 State Street\n16th Floor\nBoston, MA 02109\nAttention: Mike Clabault\nFax No.: 617-951-9392\nAny party may change its address for notices by giving the other party notice of such change in the manner provided above.\n14. Integration. This Agreement, subject to the terms and conditions imposed on the removal of Confidential Information under Paragraph 6,\nsets forth the entire agreement between the Parties with respect to the subject matter hereof, and it may not be modified or amended except by a\nwritten agreement executed by the parties hereto; provided, however, (a) each existing confidentiality agreement between some or all of the\nParties shall survive the execution of this Agreement and continue in full force and effect in accordance with its stated terms and conditions, and\n(b) the confidentiality obligations arising under the United States Collaboration Agreement, dated March 31, 2005, by and among Shire LLC,\nShire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., or under the ROW Territory License Agreement, dated March 31, 2005,\nby and among Shire Pharmaceuticals Ireland Limited, Shire Pharmaceuticals Group PLC, and New River Pharmaceuticals Inc., shall survive the\nexecution of this Agreement and continue in full force and effect in accordance with the stated terms and conditions of each.\n15. Severability. If any provision of this Agreement is declared to be invalid, void or unenforceable, (a) the remaining provisions of this\nAgreement shall continue in full force and effect, and (b) the invalid or unenforceable provision shall be replaced by mutual agreement of the\nParties in writing by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or\nunenforceable term or provision.\n16. Governing Law. The validity and interpretation of this Agreement shall be governed by, construed and enforced in accordance with, the\nlaws of the State of New York applicable to agreements made and to be fully performed therein (excluding conflicts of laws provisions thereof).\n17. Waiver. No waiver by either Party of any provision of this Agreement shall constitute a continuing waiver of such provision or a waiver of\nany other provision of this Agreement. No waiver by either Party of any breach or default by the other Party, shall constitute a waiver of any\nother breach or default of the same or any other provision of this Agreement. No waiver of any provision, breach or default shall be effective\nunless made in writing and signed by an authorized representative of the Party against whom waiver is sought.\n18. Binding Authority. Each Party represents and warrants that (a) it has the power and authority to enter into this Agreement; (b) it has the\nright to permit the other Party to evaluate\nCONFIDENTIAL\nPage6of7\nthe Confidential Information in accordance herewith; and (c) the terms of this Agreement are not inconsistent with any other contractual or legal\nobligation it may have.\n19. Multiple Counterparts. This Agreement may be executed in any number of counterparts, and the Parties may execute and exchange\nfacsimile copies of this Agreement, all of which taken together shall constitute one agreement.\n20. Insider Trading. Each Party acknowledges that (a) the Disclosing Party’s Confidential Information may represent material, non-public\ninformation of the Disclosing Party; (b) federal securities laws prohibit anyone who is in possession of material, non-public information from\npurchasing or selling the Disclosing Party’s securities on the basis of material, non-public information of the Disclosing Party; and (c) each Party\nshall comply with all applicable securities laws and regulations with respect to material, non-public information of the Disclosing Party disclosed\nunder this Agreement.\n21. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs,\nexecutors, administrators and permitted assigns. Neither Party may assign this Agreement in whole or in part or delegate its obligations under\nthis Agreement in whole or in part without the prior written consent of the other Party.\n22. Press Releases; Use of Trademarks. Neither Party shall (a) issue a press release or make any other public statement that references this\nAgreement, or (b) use the other Party’s names or trademarks for publicity or advertising purposes, except with the prior written consent of the\nother Party.\n23. Amendment; Modification. This Agreement may not be amended, modified, altered or supplemented except by a writing signed by both\nParties.\nIN WITNESS WHEREOF, the Parties have executed this Agreement through their duly authorized representatives on the date set forth above.\nNEW RIVER PHARMACEUTICALS INC.\nL.E .K. CONSULTING LLC\nBy:\n- s- Randal J. Kirk\nBy:\n- s- Jon Piper\nName: Randal J. Kirk\nName: Jon Piper\nTitle: President & CEO\nTitle: Vice President\nSHIRE PHARMACEUTICALS, INC\nBy:\n- s- XXXXX\nName: Scott Applebaum\nTitle: Secretary\nCONFIDENTIAL\nPage7of7\nLEK Team Contacts\nL.E .K. Team\nName\nTitle\nEmail\nWork Phone\nMarc Kozin\nVice President\nm.kozin@lek.com\n617-951-9545\nJonathan Piper\nVice President\nj.piper@lek.com\n617-951-9627\nSteven Rosner\nVice President\ns.rosner@lek.com\n617-951-9556\nJonathan Chou\nManager\nj.chou@lek.com\n617-951-9666\nDavid Maier\nConsultant\nd.maier@lek.com\n617-951-9526\nBrian Sze\nAssociate Consultant\nb.sze@lek.com\n617-951-9586\nJonathan Rupp\nAssociate\nj.rupp@lek.com\n617-951-9662\nBeth Goldberg\nExec Assist to M. Kozin\nb.goldberg@lek.com\n617-951-9515\nEwa Hart\nExec Assist to J. Piper\ne.hart@lek.com\n617-951-9682\nErika Jenkins\nExec Assist to S. Rosner\ne.jenkins@lek.com\n617-951-9559\nAndrea McNaughton\nExec Assist to J. Chou\na.mcnaughton@lek.com\n617-951-9638\nL.E .K. Boston Main\n617-951-9500\nL.E .K. Boston Fax\n617-951-9392\nLEK Confidential\n11/30/2006\nPage 1\nExhibit A\nTo the Non-Disclosure & Confidentiality\nAgreement by and between\nShire Pharmaceuticals Inc\nL.E.K . Consulting LLC\nNew River Pharmaceuticals Inc\nwith the Effective Date of 28 November 2006\nShire Project Team\nMatthew Emmens\nAngus Russell\nMike Cola\nBarbara Deptula\nTatjana May\nScott Applebaum\nSimon Gibbins\nGwen Melincoff\nCraig Lewis\nDavid Baker\nSuzanne Hare\nRob Lutz\nJanice Hall\nCherise Kent\nJonathan Poole\nJay Glasscott\nFinbarr Obinyan\nChris Janssen\nLEK Team Contacts\nL.E .K. Team\nName\nTitle\nEmail\nWork Phone\nMarc Kozin\nJonathan Piper\nSteven Rosner\nJonathan Chou\nDavid Maier\nBrian Sze\nJonathan Rupp\nVice President\nVice President\nVice President\nManager\nConsultant\nAssociate Consultant\nAssociate\nm.kozin@lek.com\nj.piper@lek.com\ns.rosner@lek.com\nj.chou@lek.com\nd.maier@.lek.com\nb.sze@lek.com\nj.rupp@lek.com\n617-951-9545\n617-951-9627\n617-951-9556\n617-951-9666\n617-951-9526\n617-951-9586\n617-951-9662\nBeth Goldberg\nEwa Hart\nErika Jenkins\nAndrea McNaughton\nExec Assist to M. Kozin\nExec Assist to J. Piper\nExec Assist to S. Rosner\nExec Assist to J. Chou\nb.goldberg@lek.com\ne.hart@lek.com\ne.jenkins@lek.com\na.mcnaughton@lek.com\n617-951-9515\n617-951-9682\n617-951-9559\n617-951-9638\nL.E .K. Boston Main\nL.E .K. Boston Fax\n617-951-9500\n617-951-9392\nLEK Confidential\n12/6/2006\nPage 1\nNon-Disclosure & Confidentiality Agreement among Shire, L.E.K . and New River dated November 28, 2006.\nExhibit C\nNEW RIVER REPRESENTATIVES\nName\nTitle\nEmail\nWork Phone\nRandal J. Kirk\nChairman, President\nrj.kirk@nrpharma.com\n540.633 .7978\nand Chief Executive\nOfficer\nKrish S. Krishnan\nChief Operating\nkrish.krishnan@nrpharma.com\n540.633 .7978\nOfficer, Chief\nFinancial Officer\nand Secretary\nSuma M. Krishnan\nVice President,\nskrishnan@nrpharma.com\n540.633 .7978\nProduct Development\nCliff Herndon\nVice President,\ncliff.herndon@thirdsecurity.com\n540.633 .7922\nFinance and\nController\nLegal Department personnel at Third Security, LLC\nMarcus E. Smith\nSenior Managing\nmarcus.smith@thirdsecurity.com\n540.633 .7971\nDirector and\nGeneral Counsel\nTad Fisher\nManaging Director\ntad.fisher@thirdsecurity.com\n540.633 .7951\nand Associate\nGeneral Counsel\nReade Williams\nAssociate General\nreade.williams@thirdsecurity.com\n540.633 .7925\nCounsel\nMilan B. Tolley\nManager, Paralegal\nmilan.tolley@thirdsecurity.com\n540.633 .7932\nServices
+71f9594b698dfefb2c9021c092fe0347.pdf	effective_date jurisdiction party term	EX-99.(D).(2) 10 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nNovember 22, 2006\nPeter Brent\nMDS Inc.\n100 International Boulevard\nToronto, Ontario Canada M9W 6J6\nDear Peter:\nIn connection with your consideration of a possible transaction (the “Transaction”) with Molecular Devices Corporation (the “Company”), UBS\nSecurities LLC (“UBS”) as advisor to the Company, is prepared, subject to the terms and conditions of this agreement, to make available to you\ncertain information regarding the Company, its subsidiaries and its affiliates. This information (whether written or oral) furnished to you and your\nRepresentatives (as defined below), whether prior to, on, or following the date hereof, together with analyses, compilations, forecasts, studies, or\nother documents or records prepared by you or your Representatives which contain, are based on, or otherwise reflect or are generated in whole or in\npart from such information, including that stored on any computer, word processor or other similar device, shall be referred to, collectively, as the\n“Evaluation Material”.\nYou hereby agree as follows:\n(1) You shall use the Evaluation Material solely for the purpose of evaluating the Transaction and you shall keep the Evaluation Material\nconfidential, except that you may disclose the Evaluation Material or portions thereof to those of your directors, officers, employees, affiliates,\nrepresentatives (including, without limitation, financial advisors, attorneys, and accountants), and your potential sources of financing (if any)\nfor the Transaction (collectively, the “Representatives”) (a) who need to know such information for the purpose of evaluating the Transaction,\n(b) who are informed by you of the confidential nature of the Evaluation Material, and (c) who agree to be bound by the terms of this\nagreement as if they were parties hereto. You shall be responsible for any breach of this agreement by your Representatives. In the event that\nyou or any of your Representatives are requested or required (by deposition, interrogatory, request for documents, subpoena, civil investigative\ndemand, or similar process) to disclose any of the Evaluation Material, you shall provide the Company and UBS with prompt prior written\nnotice of such requirement, you shall furnish only that portion of the Evaluation Material which you are advised by opinion of counsel is\nlegally required, you shall exercise your best efforts to obtain reliable assurance that confidential treatment will be accorded such Evaluation\nMaterial, and you shall cooperate fully with the Company in any attempt by the Company to obtain any protective orders or other appropriate\nremedies in connection therewith.\n(2) If you determine not to proceed with the Transaction, you will promptly inform UBS, as representative of the Company, of that decision and,\nin that case or at any time upon the request of UBS or the Company, you and your Representatives shall promptly either (i) destroy all copies\nof any written Evaluation Material in your or their possession or under your or their custody or control (including that stored in any computer,\nword processor, or similar device) and confirm such destruction to the Company and UBS, as representative of the Company, in writing or\n(ii) return to the Company or UBS, as representative of the Company, all copies of the Evaluation Material furnished to you by or on behalf of\nthe Company in your possession or in the possession of your Representatives. Any oral Evaluation Material will continue to be held subject to\nthe terms of this agreement.\n(3) The term “Evaluation Material” does not include any information which (i) at the time of disclosure is generally available to and known by the\npublic (other than as a direct or indirect result of a disclosure by you or by any of the Representatives) or (ii) was available to you on a non-\nconfidential basis from a source (other than UBS, the Company or their respective representatives) that is not and was not prohibited from\ndisclosing such information to you by a contractual, legal, fiduciary or other obligation.\n(4) Without the prior written consent of the Company and UBS, you and your Representatives shall not disclose to any person (a) that any\ninvestigations, discussions, or negotiations are taking place concerning the Transaction or any other possible transaction involving the\nCompany and you, (b) that you have requested\nor received any Evaluation Material, or (c) any of the terms, conditions, or other facts with respect to the Transaction or such investigations,\ndiscussions, or negotiations, including the status thereof. The term “person” as used in this agreement shall be broadly interpreted to include\nthe media and any corporation, partnership, group, individual, or entity.\n(5) You agree that (i) all communications regarding the Transaction, (ii) requests for additional information, facility tours, or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be submitted or directed to the individual\ndesignated in writing by the Company. Accordingly, you agree that until the consummation of the Transaction by you or a third party, you will\nnot, directly or indirectly, contact or communicate (other than through UBS) with any officer, director, employee, or agent of the Company\nwithout the express prior written consent of the Company. You further agree that, for a period of fifteen months from the date of this\nagreement, you will not, directly or indirectly, solicit for employment or hire any employee of the Company or any subsidiary or other affiliate\nof the Company with whom you have had contact or who became known to you in connection with your consideration of the Transaction;\nprovided, however, that the foregoing shall not preclude you or your affiliates from (a) making good faith generalized solicitations for\nemployees through advertisements or search firms and hiring any persons through such solicitations; provided, that neither you nor your\nRepresentatives encourages or advises such firm to approach any such employee, or (b) responding to or hiring any employee of the Company\nor any of its subsidiaries who contacts you or your affiliates at his or her own initiative without any prior direct or indirect encouragement or\nsolicitation (other than as permitted by clause (a) of this proviso) or (c) soliciting for employment or hiring any employee of the Company or\nany of its subsidiaries whose employment has been terminated by the Company or by any of its subsidiaries if such solicitation or hiring occurs\nat least three months after such termination.\n(6) You acknowledge and agree that (a) the Company is free to conduct the process leading up to a possible Transaction as the Company, in its\nsole discretion, may determine (including, without limitation, by negotiating with any prospective buyer and entering into a preliminary or\ndefinitive agreement without prior notice to you or any other person), (b) the Company reserves the right, in its sole discretion, to change the\nprocedures relating to your consideration of the Transaction at any time without prior notice to you or any other person, to reject any and all\nproposals made by you or any of your Representatives with regard to the Transaction, and to terminate discussions and negotiations with you\nat any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has been executed, neither\nthe Company nor its officers, directors, employees, affiliates, stockholders, agents, or controlling persons will have any legal obligation to you\nof any kind whatsoever with respect to the Transaction, whether by virtue of this agreement, any other written or oral expression with respect\nto the Transaction or otherwise. For purposes hereof, the term “definitive agreement” does not include an executed letter of intent or any other\npreliminary written agreement, nor does it include any written or oral acceptance of an offer or bid on your part.\n(7) You agree that, for a period of eighteen months from the date of this agreement, unless such shall have been specifically invited in writing by\nthe Company, neither you nor any of your affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934\nAct”)) or Representatives will in any manner, directly or indirectly, (a) effect or seek, offer, or propose (whether publicly or otherwise) to\neffect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to\neffect or participate in, (i) any acquisition of any securities (or of beneficial ownership thereof) or assets of the Company or any of its\nsubsidiaries, (ii) any tender or exchange offer, merger, or other business combination involving the Company or any of its subsidiaries, (iii) any\nrecapitalization, restructuring, liquidation, dissolution, or other extraordinary transaction with respect to the Company or any of its\nsubsidiaries, or (iv) any solicitation of proxies or consents to vote any voting securities of the Company; (b) form, join or in any way\nparticipate in a “group” (as defined under the 1934 Act) with respect to the beneficial ownership of any securities of the Company; (c) take any\naction which might force the Company to make a public announcement regarding any of the types of matters set forth in (a) above; (d) enter\ninto any discussions or arrangements with any third party with respect to any of the foregoing; or (e) request or propose that the Company or\nany of the Company’s representatives amend, waive or consider the amendment or waiver of any provision set forth in this paragraph 7.\nNotwithstanding\nthe provisions of this paragraph, it is understood and agreed that in the event that a third party makes a public proposal regarding an\nAcquisition Transaction (as defined below) other than pursuant to a publicly announced agreement between the Company and such third party,\nyou may initiate private discussions with, and submit proposals confidentially to, the CEO of the Company regarding a merger or the\nacquisition of a majority of the total voting power represented by the then outstanding equity securities of the Company (an “Acquisition\nTransaction”), provided that any such proposal shall be expressly conditioned on approval of the Company’s board of directors and shall by its\nterms not require public disclosure. .\n(8) You acknowledge that you and your Representatives may receive material non-public information in connection with your evaluation of the\nTransaction and you are aware (and you will so advise your Representatives) that the United States securities laws impose restrictions on\ntrading in securities when in possession of such information.\n(9) You understand and acknowledge that none of UBS, the Company or any of their respective officers, directors, employees, affiliates,\nstockholders, agents, or controlling persons is making any representation or warranty, express or implied, as to the accuracy or completeness of\nthe Evaluation Material, and each of UBS, the Company and such other persons expressly disclaims any and all liability to you or any other\nperson that may be based upon or relate to (a) the use of the Evaluation Material by you or any of the Representatives or (b) any errors therein\nor omissions therefrom. You further agree that you are not entitled to rely on the accuracy and completeness of the Evaluation Material and\nthat you will be entitled to rely solely on those particular representations and warranties, if any, that are made to a purchaser in a definitive\nagreement relating to the Transaction when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such\ndefinitive agreement.\n(10) You acknowledge that remedies at law may be inadequate to protect the Company against any actual or threatened breach of this agreement by\nyou or your Representatives, and, without prejudice to any other rights and remedies otherwise available to the Company, you agree to the\ngranting of equitable relief in the Company’s favor without proof of actual damages. You agree to indemnify and hold harmless the Company\nfrom any damage, loss, cost, or liability (including reasonable legal fees and disbursements and the costs of enforcing this indemnity) arising\nout of or resulting from any unauthorized use or disclosure by you or your Representatives of the Evaluation Material.\n(11) You agree that no failure or delay by UBS or the Company in exercising any right, power or privilege hereunder will operate as a waiver\nthereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or\nprivilege hereunder.\n(12) By making Evaluation Material available to you or the Representatives, the Company is not, and shall not be deemed to be, granting (expressly\nor by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or\nintellectual property right.\n(13) To the extent that any Evaluation Material includes materials or other information that may be subject to the attorney-client privilege, work\nproduct doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, proceeding,\ninvestigation, arbitration or dispute, it is acknowledged and agreed that the you and the Company have a commonality of interest with respect\nto such action, suit, proceeding, investigation, arbitration or dispute and that it is their mutual desire, intention and understanding that the\nsharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other\ninformation or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege,\nwork product doctrine or other applicable privilege or doctrine. Accordingly, all Evaluation Material that is entitled to protection under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall\nbe entitled to protection under the joint defense doctrine, and you agree to take all measures necessary to preserve, to the fullest extent\npossible, the applicability of all such privileges or doctrines.\n(14) The terms of this Agreement and all obligations thereof will expire three years from the date hereof.\n(15) Any term or provision of this agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or\nenforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other\nsituation or in any other jurisdiction.\n(16) This agreement shall be binding upon the parties and their respective successors and assigns.\n(17) This agreement and all controversies arising from or relating to performance under this agreement shall be governed by and construed in\naccordance with the laws of the State of California (without giving effect to principles of conflicts of laws).\n(18) This agreement contains the entire agreement between the parties concerning the subject matter hereof, and no modification of this agreement\nor waiver of the terms and conditions hereof will be binding unless approved in writing by the parties.\nPlease confirm your agreement to the foregoing by signing both copies of this agreement and returning one to the undersigned.\nVery truly yours,\nUBS Securities LLC,\nas Representative of the Company\nBy: /s/ June Lee\nName: June Lee\nTitle: Associate Director\nBy: /s/ Erik Bernotas\nName: Erik Bernotas\nTitle: Associate Director\nCONFIRMED AND AGREED AS\nOF THE DATE WRITTEN ABOVE:\nMDS Inc.\nBy: /s/ Peter Brent\nName: Peter Brent\nTitle: SVP, Legal	EX-99.(D).(2) 10 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nNovember 22, 2006\nPeter Brent\nMDS Inc.\n100 International Boulevard\nToronto, Ontario Canada MOW 6J6\nDear Peter:\nIn connection with your consideration of a possible transaction (the “Transaction”) with Molecular Devices Corporation (the “Company”), UBS\nSecurities LLC (“UBS”) as advisor to the Company, is prepared, subject to the terms and conditions of this agreement, to make available to you\ncertain information regarding the Company, its subsidiaries and its affiliates. This information (whether written or oral) furnished to you and your\nRepresentatives (as defined below), whether prior to, on, or following the date hereof, together with analyses, compilations, forecasts, studies, or\nother documents or records prepared by you or your Representatives which contain, are based on, or otherwise reflect or are generated in whole or in\npart from such information, including that stored on any computer, word processor or other similar device, shall be referred to, collectively, as the\n“Evaluation Material”.\nYou hereby agree as follows:\n(1) You shall use the Evaluation Material solely for the purpose of evaluating the Transaction and you shall keep the Evaluation Material\nconfidential, except that you may disclose the Evaluation Material or portions thereof to those of your directors, officers, employees, affiliates,\nrepresentatives (including, without limitation, financial advisors, attorneys, and accountants), and your potential sources of financing (if any)\nfor the Transaction (collectively, the “Representatives”) (a) who need to know such information for the purpose of evaluating the Transaction,\n(b) who are informed by you of the confidential nature of the Evaluation Material, and (c) who agree to be bound by the terms of this\nagreement as if they were parties hereto. You shall be responsible for any breach of this agreement by your Representatives. In the event that\nyou or any of your Representatives are requested or required (by deposition, interrogatory, request for documents, subpoena, civil investigative\ndemand, or similar process) to disclose any of the Evaluation Material, you shall provide the Company and UBS with prompt prior written\nnotice of such requirement, you shall furnish only that portion of the Evaluation Material which you are advised by opinion of counsel is\nlegally required, you shall exercise your best efforts to obtain reliable assurance that confidential treatment will be accorded such Evaluation\nMaterial, and you shall cooperate fully with the Company in any attempt by the Company to obtain any protective orders or other appropriate\nremedies in connection therewith.\n(2) If you determine not to proceed with the Transaction, you will promptly inform UBS, as representative of the Company, of that decision and,\nin that case or at any time upon the request of UBS or the Company, you and your Representatives shall promptly either (i) destroy all copies\nof any written Evaluation Material in your or their possession or under your or their custody or control (including that stored in any computer,\nword processor, or similar device) and confirm such destruction to the Company and UBS, as representative of the Company, in writing or\n(ii) return to the Company or UBS, as representative of the Company, all copies of the Evaluation Material furnished to you by or on behalf of\nthe Company in your possession or in the possession of your Representatives. Any oral Evaluation Material will continue to be held subject to\nthe terms of this agreement.\n(3) The term “Evaluation Material” does not include any information which (i) at the time of disclosure is generally available to and known by the\npublic (other than as a direct or indirect result of a disclosure by you or by any of the Representatives) or (ii) was available to you on a non-\nconfidential basis from a source (other than UBS, the Company or their respective representatives) that is not and was not prohibited from\ndisclosing such information to you by a contractual, legal, fiduciary or other obligation.\n(4) Without the prior written consent of the Company and UBS, you and your Representatives shall not disclose to any person (a) that any\ninvestigations, discussions, or negotiations are taking place concerning the Transaction or any other possible transaction involving the\nCompany and you, (b) that you have requested\n©)\n(6)\n)\nor received any Evaluation Material, or (c) any of the terms, conditions, or other facts with respect to the Transaction or such investigations,\ndiscussions, or negotiations, including the status thereof. The term “person” as used in this agreement shall be broadly interpreted to include\nthe media and any corporation, partnership, group, individual, or entity.\nYou agree that (i) all communications regarding the Transaction, (ii) requests for additional information, facility tours, or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be submitted or directed to the individual\ndesignated in writing by the Company. Accordingly, you agree that until the consummation of the Transaction by you or a third party, you will\nnot, directly or indirectly, contact or communicate (other than through UBS) with any officer, director, employee, or agent of the Company\nwithout the express prior written consent of the Company. You further agree that, for a period of fifteen months from the date of this\nagreement, you will not, directly or indirectly, solicit for employment or hire any employee of the Company or any subsidiary or other affiliate\nof the Company with whom you have had contact or who became known to you in connection with your consideration of the Transaction;\nprovided, however, that the foregoing shall not preclude you or your affiliates from (a) making good faith generalized solicitations for\nemployees through advertisements or search firms and hiring any persons through such solicitations; provided, that neither you nor your\nRepresentatives encourages or advises such firm to approach any such employee, or (b) responding to or hiring any employee of the Company\nor any of its subsidiaries who contacts you or your affiliates at his or her own initiative without any prior direct or indirect encouragement or\nsolicitation (other than as permitted by clause (a) of this proviso) or (c) soliciting for employment or hiring any employee of the Company or\nany of its subsidiaries whose employment has been terminated by the Company or by any of its subsidiaries if such solicitation or hiring occurs\nat least three months after such termination.\nYou acknowledge and agree that (a) the Company is free to conduct the process leading up to a possible Transaction as the Company, in its\nsole discretion, may determine (including, without limitation, by negotiating with any prospective buyer and entering into a preliminary or\ndefinitive agreement without prior notice to you or any other person), (b) the Company reserves the right, in its sole discretion, to change the\nprocedures relating to your consideration of the Transaction at any time without prior notice to you or any other person, to reject any and all\nproposals made by you or any of your Representatives with regard to the Transaction, and to terminate discussions and negotiations with you\nat any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has been executed, neither\nthe Company nor its officers, directors, employees, affiliates, stockholders, agents, or controlling persons will have any legal obligation to you\nof any kind whatsoever with respect to the Transaction, whether by virtue of this agreement, any other written or oral expression with respect\nto the Transaction or otherwise. For purposes hereof, the term “definitive agreement” does not include an executed letter of intent or any other\npreliminary written agreement, nor does it include any written or oral acceptance of an offer or bid on your part.\nYou agree that, for a period of eighteen months from the date of this agreement, unless such shall have been specifically invited in writing by\nthe Company, neither you nor any of your affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934\nAct”)) or Representatives will in any manner, directly or indirectly, (a) effect or seek, offer, or propose (whether publicly or otherwise) to\neffect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to\neffect or participate in, (i) any acquisition of any securities (or of beneficial ownership thereof) or assets of the Company or any of its\nsubsidiaries, (ii) any tender or exchange offer, merger, or other business combination involving the Company or any of its subsidiaries, (iii) any\nrecapitalization, restructuring, liquidation, dissolution, or other extraordinary transaction with respect to the Company or any of its\nsubsidiaries, or (iv) any solicitation of proxies or consents to vote any voting securities of the Company; (b) form, join or in any way\nparticipate in a “group” (as defined under the 1934 Act) with respect to the beneficial ownership of any securities of the Company; (c) take any\naction which might force the Company to make a public announcement regarding any of the types of matters set forth in (a) above; (d) enter\ninto any discussions or arrangements with any third party with respect to any of the foregoing; or (e) request or propose that the Company or\nany of the Company’s representatives amend, waive or consider the amendment or waiver of any provision set forth in this paragraph 7.\nNotwithstanding\n®)\n©)\n(10)\n(11)\n(12)\n(13)\n(14)\nthe provisions of this paragraph, it is understood and agreed that in the event that a third party makes a public proposal regarding an\nAcquisition Transaction (as defined below) other than pursuant to a publicly announced agreement between the Company and such third party,\nyou may initiate private discussions with, and submit proposals confidentially to, the CEO of the Company regarding a merger or the\nacquisition of a majority of the total voting power represented by the then outstanding equity securities of the Company (an “Acquisition\nTransaction”), provided that any such proposal shall be expressly conditioned on approval of the Company’s board of directors and shall by its\nterms not require public disclosure. .\nYou acknowledge that you and your Representatives may receive material non-public information in connection with your evaluation of the\nTransaction and you are aware (and you will so advise your Representatives) that the United States securities laws impose restrictions on\ntrading in securities when in possession of such information.\nYou understand and acknowledge that none of UBS, the Company or any of their respective officers, directors, employees, affiliates,\nstockholders, agents, or controlling persons is making any representation or warranty, express or implied, as to the accuracy or completeness of\nthe Evaluation Material, and each of UBS, the Company and such other persons expressly disclaims any and all liability to you or any other\nperson that may be based upon or relate to (a) the use of the Evaluation Material by you or any of the Representatives or (b) any errors therein\nor omissions therefrom. You further agree that you are not entitled to rely on the accuracy and completeness of the Evaluation Material and\nthat you will be entitled to rely solely on those particular representations and warranties, if any, that are made to a purchaser in a definitive\nagreement relating to the Transaction when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such\ndefinitive agreement.\nYou acknowledge that remedies at law may be inadequate to protect the Company against any actual or threatened breach of this agreement by\nyou or your Representatives, and, without prejudice to any other rights and remedies otherwise available to the Company, you agree to the\ngranting of equitable relief in the Company’s favor without proof of actual damages. You agree to indemnify and hold harmless the Company\nfrom any damage, loss, cost, or liability (including reasonable legal fees and disbursements and the costs of enforcing this indemnity) arising\nout of or resulting from any unauthorized use or disclosure by you or your Representatives of the Evaluation Material.\nYou agree that no failure or delay by UBS or the Company in exercising any right, power or privilege hereunder will operate as a waiver\nthereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or\nprivilege hereunder.\nBy making Evaluation Material available to you or the Representatives, the Company is not, and shall not be deemed to be, granting (expressly\nor by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or\nintellectual property right.\nTo the extent that any Evaluation Material includes materials or other information that may be subject to the attorney-client privilege, work\nproduct doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, proceeding,\ninvestigation, arbitration or dispute, it is acknowledged and agreed that the you and the Company have a commonality of interest with respect\nto such action, suit, proceeding, investigation, arbitration or dispute and that it is their mutual desire, intention and understanding that the\nsharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other\ninformation or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege,\nwork product doctrine or other applicable privilege or doctrine. Accordingly, all Evaluation Material that is entitled to protection under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall\nbe entitled to protection under the joint defense doctrine, and you agree to take all measures necessary to preserve, to the fullest extent\npossible, the applicability of all such privileges or doctrines.\nThe terms of this Agreement and all obligations thereof will expire three years from the date hereof.\n(15)\n(16)\n(17)\n(18)\nAny term or provision of this agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or\nenforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other\nsituation or in any other jurisdiction.\nThis agreement shall be binding upon the parties and their respective successors and assigns.\nThis agreement and all controversies arising from or relating to performance under this agreement shall be governed by and construed in\naccordance with the laws of the State of California (without giving effect to principles of conflicts of laws).\nThis agreement contains the entire agreement between the parties concerning the subject matter hereof, and no modification of this agreement\nor waiver of the terms and conditions hereof will be binding unless approved in writing by the parties.\nPlease confirm your agreement to the foregoing by signing both copies of this agreement and returning one to the undersigned. CONFIRMED AND AGREED AS\nOF THE DATE WRITTEN ABOVE: MDS Inc.\nBy: /s/ Peter Brent\nName: Peter Brent\nTitle: SVP, Legal\nVery truly yours,\nUBS Securities LLC,\nas Representative of the Company\nBy: /s/ June Lee\nName: June Lee\nTitle: Associate Director\nBy: /s/ Erik Bernotas\nName: Erik Bernotas\nTitle: Associate Director	EX-99.(D).(2) 10 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nNovember 22, 2006\nPeter Brent\nMDS Inc.\n100 International Boulevard\nToronto, Ontario Canada M9W 6J6\nDear Peter:\nIn connection with your consideration of a possible transaction (the "Transaction") with Molecular Devices Corporation (the "Company"), UBS\nSecurities LLC ("UBS") as advisor to the Company, is prepared, subject to the terms and conditions of this agreement, to make available to you\ncertain information regarding the Company, its subsidiaries and its affiliates. This information (whether written or oral) furnished to you and your\nRepresentatives (as defined below), whether prior to, on, or following the date hereof, together with analyses, compilations, forecasts, studies, or\nother documents or records prepared by you or your Representatives which contain, are based on, or otherwise reflect or are generated in whole or\nin\npart from such information, including that stored on any computer, word processor or other similar device, shall be referred to, collectively, as the\n"Evaluation Material"\nYou hereby agree as follows:\n(1) You shall use the Evaluation Material solely for the purpose of evaluating the Transaction and you shall keep the Evaluation Material\nconfidential, except that you may disclose the Evaluation Material or portions thereof to those of your directors, officers, employees, affiliates,\nrepresentatives (including, without limitation, financial advisors, attorneys, and accountants), and your potential sources of financing (if any)\nfor the Transaction (collectively, the "Representatives") (a) who need to know such information for the purpose of evaluating the Transaction,\n(b) who are informed by you of the confidential nature of the Evaluation Material, and (c) who agree to be bound by the terms of this\nagreement as if they were parties hereto. You shall be responsible for any breach of this agreement by your Representatives. In the event that\nyou\nor any of your Representatives are requested or required (by deposition, interrogatory, request for documents, subpoena, civil investigative\ndemand, or similar process) to disclose any of the Evaluation Material, you shall provide the Company and UBS with prompt prior written\nnotice of such requirement, you shall furnish only that portion of the Evaluation Material which you are advised by opinion of counsel is\nlegally\nrequired,\nyou\nshall\nexercise\nyour\nbest\nefforts\nto\nobtain\nreliable\nassurance\nthat\nconfidential\ntreatment\nwill\nbe\naccorded\nsuch\nEvaluation\nMaterial, and you shall cooperate fully with the Company in any attempt by the Company to obtain any protective orders or other appropriate\nremedies in connection therewith.\n(2)\nIf you determine not to proceed with the Transaction, you will promptly inform UBS, as representative of the Company, of that decision and,\nin that case or at any time upon the request of UBS or the Company, you and your Representatives shall promptly either (i) destroy all copies\nof\nany\nwritten\nEvaluation\nMaterial\nin\nyour\nor\ntheir\npossession\nor\nunder\nyour\nor\ntheir\ncustody\nor\ncontrol\n(including\nthat\nstored\nin\nany\ncomputer,\nword processor, or similar device) and confirm such destruction to the Company and UBS, as representative of the Company, in writing or\n(ii) return to the Company or UBS, as representative of the Company, all copies of the Evaluation Material furnished to you by or on behalf of\nthe Company in your possession or in the possession of your Representatives. Any oral Evaluation Material will continue to be held subject to\nthe terms of this agreement.\n(3)\nThe term "Evaluation Material" does not include any information which (i) at the time of disclosure is generally available to and known by the\npublic (other than as a direct or indirect result of a disclosure by you or by any of the Representatives) or (ii) was available to you on a non-\nconfidential basis from a source (other than UBS, the Company or their respective representatives) that is not and was not prohibited from\ndisclosing such information to you by a contractual, legal, fiduciary or other obligation.\n(4) Without the prior written consent of the Company and UBS, you and your Representatives shall not disclose to any person (a) that any\ninvestigations, discussions, or negotiations are taking place concerning the Transaction or any other possible transaction involving the\nCompany and you, (b) that you have requested\nor received any Evaluation Material, or (c) any of the terms, conditions, or other facts with respect to the Transaction or such investigations,\ndiscussions, or negotiations, including the status thereof. The term "person" as used in this agreement shall be broadly interpreted to include\nthe media and any corporation, partnership, group, individual, or entity.\n(5)\nYou agree that (i) all communications regarding the Transaction, (ii) requests for additional information, facility tours, or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be submitted or directed to the individual\ndesignated in writing by the Company. Accordingly, you agree that until the consummation of the Transaction by you or a third party, you will\nnot, directly or indirectly, contact or communicate (other than through UBS) with any officer, director, employee, or agent of the Company\nwithout the express prior written consent of the Company. You further agree that, for a period of fifteen months from the date of this\nagreement, you will not, directly or indirectly, solicit for employment or hire any employee of the Company or any subsidiary or other affiliate\nof the Company with whom you have had contact or who became known to you in connection with your consideration of the Transaction;\nprovided, however, that the foregoing shall not preclude you or your affiliates from (a) making good faith generalized solicitations for\nemployees through advertisements or search firms and hiring any persons through such solicitations; provided, that neither you nor your\nRepresentatives encourages or advises such firm to approach any such employee, or (b) responding to or hiring any employee of the Company\nor\nany\nof\nits\nsubsidiaries\nwho\ncontacts\nyou\nor\nyour\naffiliates\nat\nhis\nor\nher\nown\ninitiative\nwithout\nany\nprior\ndirect\nor\nindirect\nencouragement\nor\nsolicitation (other than as permitted by clause (a) of this proviso) or (c) soliciting for employment or hiring any employee of the Company or\nany of its subsidiaries whose employment has been terminated by the Company or by any of its subsidiaries if such solicitation or hiring occurs\nat least three months after such termination.\n(6)\nYou\nacknowledge\nand\nagree\nthat\n(a)\nthe\nCompany\nis\nfree\nto\nconduct\nthe\nprocess\nleading\nup\nto\na\npossible\nTransaction\nas\nthe\nCompany,\nin\nits\nsole discretion, may determine (including, without limitation, by negotiating with any prospective buyer and entering into a preliminary or\ndefinitive agreement without prior notice to you or any other person), (b) the Company reserves the right, in its sole discretion, to change the\nprocedures relating to your consideration of the Transaction at any time without prior notice to you or any other person, to reject any and all\nproposals made by you or any of your Representatives with regard to the Transaction, and to terminate discussions and negotiations with you\nat any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has been executed, neither\nthe Company nor its officers, directors, employees, affiliates, stockholders, agents, or controlling persons will have any legal obligation to you\nof\nany kind whatsoever with respect to the Transaction, whether by virtue of this agreement, any other written or oral expression with respect\nto the Transaction or otherwise. For purposes hereof, the term "definitive agreement" does not include an executed letter of intent or any other\npreliminary written agreement, nor does it include any written or oral acceptance of an offer or bid on your part.\n(7)\nYou agree that, for a period of eighteen months from the date of this agreement, unless such shall have been specifically invited in writing by\nthe Company, neither you nor any of your affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the "1934\nAct")) or Representatives will in any manner, directly or indirectly, (a) effect or seek, offer, or propose (whether publicly or otherwise) to\neffect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to\neffect or participate in, (i) any acquisition of any securities (or of beneficial ownership thereof) or assets of the Company or any of its\nsubsidiaries, (ii) any tender or exchange offer, merger, or other business combination involving the Company or any of its subsidiaries, (iii) any\nrecapitalization, restructuring, liquidation, dissolution, or other extraordinary transaction with respect to the Company or any of its\nsubsidiaries, or (iv) any solicitation of proxies or consents to vote any voting securities of the Company; (b) form, join or in any way\nparticipate in a "group" (as defined under the 1934 Act) with respect to the beneficial ownership of any securities of the Company; (c) take any\naction which might force the Company to make a public announcement regarding any of the types of matters set forth in (a) above; (d) enter\ninto any discussions or arrangements with any third party with respect to any of the foregoing; or (e) request or propose that the Company or\nany of the Company's representatives amend, waive or consider the amendment or waiver of any provision set forth in this paragraph\n7.\nNotwithstanding\nthe provisions of this paragraph, it is understood and agreed that in the event that a third party makes a public proposal regarding an\nAcquisition Transaction (as defined below) other than pursuant to a publicly announced agreement between the Company and such third party,\nyou may initiate private discussions with, and submit proposals confidentially to, the CEO of the Company regarding a merger or the\nacquisition of a majority of the total voting power represented by the then outstanding equity securities of the Company (an "Acquisition\nTransaction"), provided that any such proposal shall be expressly conditioned on approval of the Company's board of directors and shall by its\nterms not require public disclosure.\n(8)\nYou acknowledge that you and your Representatives may receive material non-public information in connection with your evaluation of the\nTransaction and you are aware (and you will so advise your Representatives) that the United States securities laws impose restrictions on\ntrading in securities when in possession of such information.\n(9)\nYou understand and acknowledge that none of UBS, the Company or any of their respective officers, directors, employees, affiliates,\nstockholders, agents, or controlling persons is making any representation or warranty, express or implied, as to the accuracy or completeness of\nthe Evaluation Material, and each of UBS, the Company and such other persons expressly disclaims any and all liability to you or any other\nperson that may be based upon or relate to (a) the use of the Evaluation Material by you or any of the Representatives or (b) any errors therein\nor omissions therefrom. You further agree that you are not entitled to rely on the accuracy and completeness of the Evaluation Material and\nthat you will be entitled to rely solely on those particular representations and warranties, if any, that are made to a purchaser in a definitive\nagreement relating to the Transaction when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such\ndefinitive agreement.\n(10) You acknowledge that remedies at law may be inadequate to protect the Company against any actual or threatened breach of this agreement by\nyou or your Representatives, and, without prejudice to any other rights and remedies otherwise available to the Company, you agree to the\ngranting of equitable relief in the Company's favor without proof of actual damages. You agree to indemnify and hold harmless the Company\nfrom any damage, loss, cost, or liability (including reasonable legal fees and disbursements and the costs of enforcing this indemnity) arising\nout of or resulting from any unauthorized use or disclosure by you or your Representatives of the Evaluation Material.\n(11) You agree that no failure or delay by UBS or the Company in exercising any right, power or privilege hereunder will operate as a waiver\nthereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power\nor\nprivilege hereunder.\n(12) By making Evaluation Material available to you or the Representatives, the Company is not, and shall not be deemed to be, granting (expressly\nor by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or\nintellectual property right.\n(13) To the extent that any Evaluation Material includes materials or other information that may be subject to the attorney-clien privilege, work\nproduct doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, proceeding,\ninvestigation, arbitration or dispute, it is acknowledged and agreed that the you and the Company have a commonality of interest with respect\nto such action, suit, proceeding, investigation, arbitration or dispute and that it is their mutual desire, intention and understanding that the\nsharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other\ninformation or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege,\nwork product doctrine or other applicable privilege or doctrine. Accordingly, all Evaluation Material that is entitled to protection under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall\nbe entitled to protection under the joint defense doctrine, and you agree to take all measures necessary to preserve, to the fullest extent\npossible, the applicability of all such privileges or doctrines.\n(14) The terms of this Agreement and all obligations thereof will expire three years from the date hereof.\n(15) Any term or provision of this agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or\nenforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other\nsituation or in any other jurisdiction.\n(16) This agreement shall be binding upon the parties and their respective successors and assigns.\n(17) This agreement and all controversies arising from or relating to performance under this agreement shall be governed by and construed in\naccordance with the laws of the State of California (without giving effect to principles of conflicts of laws).\n(18)\nThis agreement contains the entire agreement between the parties concerning the subject matter hereof, and no modification of this agreement\nor waiver of the terms and conditions hereof will be binding unless approved in writing by the parties.\nPlease confirm your agreement to the foregoing by signing both copies of this agreement and returning one to the undersigned.\nVery truly yours,\nUBS Securities LLC,\nas Representative of the Company\nBy: /s/ June Lee\nName: June Lee\nTitle: Associate Director\nBy: /s/ Erik Bernotas\nName: Erik Bernotas\nTitle: Associate Director\nCONFIRMED AND AGREED AS\nOF THE DATE WRITTEN ABOVE:\nMDS Inc.\nBy: /s/ Peter Brent\nName: Peter Brent\nTitle: SVP, Legal	EX-99.(D).(2) 10 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nNovember 22, 2006\nPeter Brent\nMDS Inc.\n100 International Boulevard\nToronto, Ontario Canada M9W 6J6\nDear Peter:\nIn connection with your consideration of a possible transaction (the “Transaction”) with Molecular Devices Corporation (the “Company”), UBS\nSecurities LLC (“UBS”) as advisor to the Company, is prepared, subject to the terms and conditions of this agreement, to make available to you\ncertain information regarding the Company, its subsidiaries and its affiliates. This information (whether written or oral) furnished to you and your\nRepresentatives (as defined below), whether prior to, on, or following the date hereof, together with analyses, compilations, forecasts, studies, or\nother documents or records prepared by you or your Representatives which contain, are based on, or otherwise reflect or are generated in whole or in\npart from such information, including that stored on any computer, word processor or other similar device, shall be referred to, collectively, as the\n“Evaluation Material”.\nYou hereby agree as follows:\n(1) You shall use the Evaluation Material solely for the purpose of evaluating the Transaction and you shall keep the Evaluation Material\nconfidential, except that you may disclose the Evaluation Material or portions thereof to those of your directors, officers, employees, affiliates,\nrepresentatives (including, without limitation, financial advisors, attorneys, and accountants), and your potential sources of financing (if any)\nfor the Transaction (collectively, the “Representatives”) (a) who need to know such information for the purpose of evaluating the Transaction,\n(b) who are informed by you of the confidential nature of the Evaluation Material, and (c) who agree to be bound by the terms of this\nagreement as if they were parties hereto. You shall be responsible for any breach of this agreement by your Representatives. In the event that\nyou or any of your Representatives are requested or required (by deposition, interrogatory, request for documents, subpoena, civil investigative\ndemand, or similar process) to disclose any of the Evaluation Material, you shall provide the Company and UBS with prompt prior written\nnotice of such requirement, you shall furnish only that portion of the Evaluation Material which you are advised by opinion of counsel is\nlegally required, you shall exercise your best efforts to obtain reliable assurance that confidential treatment will be accorded such Evaluation\nMaterial, and you shall cooperate fully with the Company in any attempt by the Company to obtain any protective orders or other appropriate\nremedies in connection therewith.\n(2) If you determine not to proceed with the Transaction, you will promptly inform UBS, as representative of the Company, of that decision and,\nin that case or at any time upon the request of UBS or the Company, you and your Representatives shall promptly either (i) destroy all copies\nof any written Evaluation Material in your or their possession or under your or their custody or control (including that stored in any computer,\nword processor, or similar device) and confirm such destruction to the Company and UBS, as representative of the Company, in writing or\n(ii) return to the Company or UBS, as representative of the Company, all copies of the Evaluation Material furnished to you by or on behalf of\nthe Company in your possession or in the possession of your Representatives. Any oral Evaluation Material will continue to be held subject to\nthe terms of this agreement.\n(3) The term “Evaluation Material” does not include any information which (i) at the time of disclosure is generally available to and known by the\npublic (other than as a direct or indirect result of a disclosure by you or by any of the Representatives) or (ii) was available to you on a non-\nconfidential basis from a source (other than UBS, the Company or their respective representatives) that is not and was not prohibited from\ndisclosing such information to you by a contractual, legal, fiduciary or other obligation.\n(4) Without the prior written consent of the Company and UBS, you and your Representatives shall not disclose to any person (a) that any\ninvestigations, discussions, or negotiations are taking place concerning the Transaction or any other possible transaction involving the\nCompany and you, (b) that you have requested\nor received any Evaluation Material, or (c) any of the terms, conditions, or other facts with respect to the Transaction or such investigations,\ndiscussions, or negotiations, including the status thereof. The term “person” as used in this agreement shall be broadly interpreted to include\nthe media and any corporation, partnership, group, individual, or entity.\n(5) You agree that (i) all communications regarding the Transaction, (ii) requests for additional information, facility tours, or management\nmeetings, and (iii) discussions or questions regarding procedures with respect to the Transaction, will be submitted or directed to the individual\ndesignated in writing by the Company. Accordingly, you agree that until the consummation of the Transaction by you or a third party, you will\nnot, directly or indirectly, contact or communicate (other than through UBS) with any officer, director, employee, or agent of the Company\nwithout the express prior written consent of the Company. You further agree that, for a period of fifteen months from the date of this\nagreement, you will not, directly or indirectly, solicit for employment or hire any employee of the Company or any subsidiary or other affiliate\nof the Company with whom you have had contact or who became known to you in connection with your consideration of the Transaction;\nprovided, however, that the foregoing shall not preclude you or your affiliates from (a) making good faith generalized solicitations for\nemployees through advertisements or search firms and hiring any persons through such solicitations; provided, that neither you nor your\nRepresentatives encourages or advises such firm to approach any such employee, or (b) responding to or hiring any employee of the Company\nor any of its subsidiaries who contacts you or your affiliates at his or her own initiative without any prior direct or indirect encouragement or\nsolicitation (other than as permitted by clause (a) of this proviso) or (c) soliciting for employment or hiring any employee of the Company or\nany of its subsidiaries whose employment has been terminated by the Company or by any of its subsidiaries if such solicitation or hiring occurs\nat least three months after such termination.\n(6) You acknowledge and agree that (a) the Company is free to conduct the process leading up to a possible Transaction as the Company, in its\nsole discretion, may determine (including, without limitation, by negotiating with any prospective buyer and entering into a preliminary or\ndefinitive agreement without prior notice to you or any other person), (b) the Company reserves the right, in its sole discretion, to change the\nprocedures relating to your consideration of the Transaction at any time without prior notice to you or any other person, to reject any and all\nproposals made by you or any of your Representatives with regard to the Transaction, and to terminate discussions and negotiations with you\nat any time and for any reason, and (c) unless and until a written definitive agreement concerning the Transaction has been executed, neither\nthe Company nor its officers, directors, employees, affiliates, stockholders, agents, or controlling persons will have any legal obligation to you\nof any kind whatsoever with respect to the Transaction, whether by virtue of this agreement, any other written or oral expression with respect\nto the Transaction or otherwise. For purposes hereof, the term “definitive agreement” does not include an executed letter of intent or any other\npreliminary written agreement, nor does it include any written or oral acceptance of an offer or bid on your part.\n(7) You agree that, for a period of eighteen months from the date of this agreement, unless such shall have been specifically invited in writing by\nthe Company, neither you nor any of your affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “1934\nAct”)) or Representatives will in any manner, directly or indirectly, (a) effect or seek, offer, or propose (whether publicly or otherwise) to\neffect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to\neffect or participate in, (i) any acquisition of any securities (or of beneficial ownership thereof) or assets of the Company or any of its\nsubsidiaries, (ii) any tender or exchange offer, merger, or other business combination involving the Company or any of its subsidiaries, (iii) any\nrecapitalization, restructuring, liquidation, dissolution, or other extraordinary transaction with respect to the Company or any of its\nsubsidiaries, or (iv) any solicitation of proxies or consents to vote any voting securities of the Company; (b) form, join or in any way\nparticipate in a “group” (as defined under the 1934 Act) with respect to the beneficial ownership of any securities of the Company; (c) take any\naction which might force the Company to make a public announcement regarding any of the types of matters set forth in (a) above; (d) enter\ninto any discussions or arrangements with any third party with respect to any of the foregoing; or (e) request or propose that the Company or\nany of the Company’s representatives amend, waive or consider the amendment or waiver of any provision set forth in this paragraph 7.\nNotwithstanding\nthe provisions of this paragraph, it is understood and agreed that in the event that a third party makes a public proposal regarding an\nAcquisition Transaction (as defined below) other than pursuant to a publicly announced agreement between the Company and such third party,\nyou may initiate private discussions with, and submit proposals confidentially to, the CEO of the Company regarding a merger or the\nacquisition of a majority of the total voting power represented by the then outstanding equity securities of the Company (an “Acquisition\nTransaction”), provided that any such proposal shall be expressly conditioned on approval of the Company’s board of directors and shall by its\nterms not require public disclosure. .\n(8) You acknowledge that you and your Representatives may receive material non-public information in connection with your evaluation of the\nTransaction and you are aware (and you will so advise your Representatives) that the United States securities laws impose restrictions on\ntrading in securities when in possession of such information.\n(9) You understand and acknowledge that none of UBS, the Company or any of their respective officers, directors, employees, affiliates,\nstockholders, agents, or controlling persons is making any representation or warranty, express or implied, as to the accuracy or completeness of\nthe Evaluation Material, and each of UBS, the Company and such other persons expressly disclaims any and all liability to you or any other\nperson that may be based upon or relate to (a) the use of the Evaluation Material by you or any of the Representatives or (b) any errors therein\nor omissions therefrom. You further agree that you are not entitled to rely on the accuracy and completeness of the Evaluation Material and\nthat you will be entitled to rely solely on those particular representations and warranties, if any, that are made to a purchaser in a definitive\nagreement relating to the Transaction when, as, and if it is executed, and subject to such limitations and restrictions as may be specified in such\ndefinitive agreement.\n(10) You acknowledge that remedies at law may be inadequate to protect the Company against any actual or threatened breach of this agreement by\nyou or your Representatives, and, without prejudice to any other rights and remedies otherwise available to the Company, you agree to the\ngranting of equitable relief in the Company’s favor without proof of actual damages. You agree to indemnify and hold harmless the Company\nfrom any damage, loss, cost, or liability (including reasonable legal fees and disbursements and the costs of enforcing this indemnity) arising\nout of or resulting from any unauthorized use or disclosure by you or your Representatives of the Evaluation Material.\n(11) You agree that no failure or delay by UBS or the Company in exercising any right, power or privilege hereunder will operate as a waiver\nthereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or\nprivilege hereunder.\n(12) By making Evaluation Material available to you or the Representatives, the Company is not, and shall not be deemed to be, granting (expressly\nor by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or\nintellectual property right.\n(13) To the extent that any Evaluation Material includes materials or other information that may be subject to the attorney-client privilege, work\nproduct doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit, proceeding,\ninvestigation, arbitration or dispute, it is acknowledged and agreed that the you and the Company have a commonality of interest with respect\nto such action, suit, proceeding, investigation, arbitration or dispute and that it is their mutual desire, intention and understanding that the\nsharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such materials or other\ninformation or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege,\nwork product doctrine or other applicable privilege or doctrine. Accordingly, all Evaluation Material that is entitled to protection under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder and shall\nbe entitled to protection under the joint defense doctrine, and you agree to take all measures necessary to preserve, to the fullest extent\npossible, the applicability of all such privileges or doctrines.\n(14) The terms of this Agreement and all obligations thereof will expire three years from the date hereof.\n(15) Any term or provision of this agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or\nenforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other\nsituation or in any other jurisdiction.\n(16) This agreement shall be binding upon the parties and their respective successors and assigns.\n(17) This agreement and all controversies arising from or relating to performance under this agreement shall be governed by and construed in\naccordance with the laws of the State of California (without giving effect to principles of conflicts of laws).\n(18) This agreement contains the entire agreement between the parties concerning the subject matter hereof, and no modification of this agreement\nor waiver of the terms and conditions hereof will be binding unless approved in writing by the parties.\nPlease confirm your agreement to the foregoing by signing both copies of this agreement and returning one to the undersigned.\nVery truly yours,\nUBS Securities LLC,\nas Representative of the Company\nBy: /s/ June Lee\nName: June Lee\nTitle: Associate Director\nBy: /s/ Erik Bernotas\nName: Erik Bernotas\nTitle: Associate Director\nCONFIRMED AND AGREED AS\nOF THE DATE WRITTEN ABOVE:\nMDS Inc.\nBy: /s/ Peter Brent\nName: Peter Brent\nTitle: SVP, Legal
+724a6c9ea428637bd128cafb401b8a7e.pdf	effective_date jurisdiction party term	EX-10.10 11 a2235501zex-10 _10.htm EX-10 .10\nExhibit 10.10\nEXHIBITANon-Compe\nt\ni\nt\ni\non\n,\nNon-So\nl\ni\nc\ni\nt\na\nt\ni\non\n,\nConf\ni\nden\nt\ni\na\nl\ni\nt\nyandAss\ni\ngnmen\nt\nAgreemen\nt\nIncons\ni\nd era\nt\ni\nonandasacond\ni\nt\ni\nonofmyemp\nl\noymen\nt\nbyScho\nl\narRockLLC\n,\naDe\nl\naware\nl\ni\nm\ni\nt\ned\nl\ni\nab\ni\nl\ni\nt\nycompany(a\nl\nongw\ni\nt\nh\ni\nt\ns Aff\ni\nl\ni\na\nt\nes\nt\nhe"Company")\n,\nIherebyagreeasfo\nl\nl\nows\n:\nI\n.\nPropr\ni\ne\nt\naryInforma\nt\ni\non\n.\nIagree\nt\nha\nt\na\nl\nl\nCompanyandusemybes\nt\neffo r\nt\ns\nt\nopreven\nt\nt\nheunau\nt\nhor\ni\nzedd\ni\nsc\nl\nosureofa\nl\nl\nPropr\ni\ne\nt\nary\ni\nnforma\nt\ni\non\n,\nwhe\nt\nherorno\nt\ni\nnwr\ni\nt\ni\nng\n,\nwhe\nt\nherorno\nt\nd\ni\nsc\nl\nosedbeforeoraf\nt\nerIwasf\ni\nrs\nt\nemp\nl\noyedby\nt\nheCompany\n,\nconcern\ni\nng\nt\nheCompany\n'\nsbus\ni\nn ess\n,\nt\nechno\nl\nogy\n,\nbus\ni\nnessre\nl\na\nt\ni\non sh\ni\npsorf\ni\nna nc\ni\na\nl\naff a\ni\nrs\nt\nha\nt\nt\nheCompanyhasno\nt\nre\nl\neased\nt\no\nt\nhegenera\nl\npub\nl\ni\nc (co\nl\nl\nec\nt\ni\nve\nl\ny\n,\n"Propr\ni\ne\nt\naryInforma\nt\ni\non")\n,\nanda\nl\nl\nt\nang\ni\nb\nl\neembod\ni\nmen\nt\ns\nt\nhereof\n:\nareandw\ni\nl\nl\nbe\nt\nheexc\nl\nus\ni\nveproper\nt\nyof\nt\nheCompany\n.\nBywayof\ni\nl\nl\nus\nt\nra\nt\ni\non\n,\nPropr\ni\ne\nt\naryInforma\nt\ni\nonmay\ni\nnc\nl\nude\ni\nnforma\nt\ni\nonorma\nt\ner\ni\na\nl\nt\nha\nt\nhasno\nt\nbeenmadegenera\nl\nl\nyava\ni\nl\nab\nl\ne\nt\no\nt\nhepub\nl\ni\nc\n,\nsuchas\n:\n(a)corpora\nt\ne\ni\nnforma\nt\ni\non\n,\ni\nnc\nl\nud\ni\nngp\nl\nans\n,\ns\nt\nra\nt\neg\ni\nes\n,\nIn form a\nt\ni\non\n.\nIw\ni\nl\nl\nde\nl\ni\nver\nt\no\nt\nheCompanya\nl\nl\ncop\ni\nesando\nt\nher\nt\nang\ni\nb\nl\neembod\ni\nmen\nt\nsofPropr\ni\ne\nt\nary Info rm a\nt\ni\non\ni\nnmypossess\ni\nonorcon\nt\nro\nl\nupon\nt\nheear\nl\ni\nerofareques\nt\nby\nt\nheCompanyor\nt\nerm\ni\nna\nt\ni\nonofmyemp\nl\noymen\nt\n.\n3\n.\nR\ni\ngh\nt\nsofO\nt\nhe rs\n.\nIunders\nt\nand\nt\nha\nt\nt\nheCompany\ni\nsnowandmayhereaf\nt\nerbesub\nj\nec\nt\nt\nonon-d\ni\nsc\nl\nosureorconf\ni\nden\nt\ni\na\nl\ni\nt\nyagreemen\nt\nsw\ni\nt\nh\nt\nh\ni\nrdpersonswh\ni\nchrequ\ni\nre\nt\nheCompany\nt\nopro\nt\nec\nt\no r refra\ni\nnfromuseofpropr\ni\ne\nt\nary\ni\nnforma\nt\ni\non\n.\nIagree\nt\nobeboundby\nt\nhe\nt\nermsofsuchagreemen\nt\ns\ni\nn\nt\nheeven\nt\nIhaveaccess\nt\nosuchpropr\ni\ne\nt\nary\ni\nnforma\nt\ni\non\n.\nme\nt\nhods\n,\npo\nl\ni\nc\ni\nes\n,\nres o\nl\nu\nt\ni\nons\n,\nno\nt\nes\n,\nema\ni\nl\ncorrespondence\n,\nnego\nt\ni\na\nt\ni\nonsor\nl\ni\nt\ni\nga\nt\ni\non\n;\n(b)marke\nt\ni\nng\ni\nnforma\nt\ni\non\n,\nme\nt\nhods\n,\ncus\nt\nomer\ni\nden\nt\ni\nt\ni\nesabou\nt\ncus\nt\nom ers\n,\nprospec\nt\ni\nnc\nl\nud\ni\nngs\nt\nra\nt\neg\ni\nes\n,\noro\nt\nher\ni\nnforma\nt\ni\non\ni\nden\nt\ni\nt\ni\nesoro\nt\nher4\n.\nCo mm\ni\nt\nmen\nt\nt\noCompany\n;\nAvo\ni\ndanceofConf\nl\ni\nc\nt\nof\nIn\nt\nere s\nt\n.\nWh\ni\nl\neanemp\nl\noyeeof\nt\nheCompany\n,\nIw\ni\nl\nl\ndevo\nt\nemyfu\nl\nl\n-\nt\ni\nmeeffor\nt\ns\nt\no\nt\nheCompany\n'\nsbus\ni\nnessandIw\ni\nl\nl\nno\nt\nengage\ni\nnanyo\nt\nherbus\ni\nnessac\nt\ni\nv\ni\nt\ny\nt\nha\nt\nconf\nl\ni\nc\nt\nsw\ni\nt\nhmydu\nt\ni\nes\nt\no\nt\nheCompany\n.\nIw\ni\nl\nl\nadv\ni\nse\nt\nhepres\ni\nden\nt\nof\nt\nheCompanyorh\ni\nsorhernom\ni\nneea\nt\nsu ch\nt\ni\nmeasanyac\nt\ni\nv\ni\nt\nyofe\ni\nt\nher\nt\nheCompanyorano\nt\nherbus\ni\nnesspresen\nt\nsmew\ni\nt\nhaconf\nl\ni\nc\nt\nof\ni\nn\nt\ne res\nt\nor\nt\nheappearanceofaconf\nl\ni\nc\nt\nof\ni\nn\nt\ne res\nt\nasanemp\nl\noyeeof\nt\nheCompany\n.\nIw\ni\nl\nl\nt\nakewha\nt\neverac\nt\ni\non\ni\nsreques\nt\nedofmeby\nt\nheCompany\nt\no reso\nl\nveanyconf\nl\ni\nc\nt\norappearanceofconf\nl\ni\nc\nt\nwh\ni\nch\ni\nt\nf\ni\nnds\nt\noex\ni\ns\nt\n.\ni\nnforma\nt\ni\nonabou\nt\nprospec\nt\ns\n,\normarke\nt\nana\nl\nysesorpro\nj\nec\nt\ni\nons\n:\n(c)f7nanc\ni\na\nl\ni\nnforma\nt\ni\non\n,\ni\nnc\nl\nud\ni\nngcos\nt\nandperformanceda\nt\na\n,\ndeb\nt\narrangemen\nt\ns\n,\nequ\ni\nt\nys\nt\nruc\nt\nure\n,\ni\nnves\nt\norsandho\nl\nd\ni\nngs\n,\npurchas\ni\nngandsa\nl\nesda\nt\naandpr\ni\nce\nl\ni\ns\nt\ns\n:\nand\nt\nechno\nl\nog\ni\nca\nl\ni\nnf\ni\nxma\nt\ni\non\n,\nspec\ni\nf\ni\nca\nt\ni\nons\n,\nmanua\nl\ns\n,\nfo rms\n,\n(d)opera\nt\ni\nona\nl\nand\ni\nnc\nl\nud\ni\nngp\nl\nans\n,\nt\nemp\nl\na\nt\nes\n,\nsof\nt\nw are\n,\ndes\ni\ngns\n.\nme\nt\nhods\n,\nprocedures\n,\nfo rmu\nl\nas\n,\nd\ni\nscover\ni\nes\n,\ni\nnven\nt\ni\nons\n,\ni\nmprovemen\nt\ns\n,\nb\ni\no\nl\nog\ni\nca\nl\norchem\ni\nca\nl\nma\nt\ner\ni\na\nl\ns\n,\nconcep\nt\nsand\ni\ndeas\n;\nand(e)personne\nl\ni\nnforma\nt\ni\non\n,\ni\nnc\nl\nud\ni\nngpersonne\nl\nl\ni\ns\nt\ns\n,\nrep or\nt\ni\nngororgan\ni\nza\nt\ni\nona\nl\ns\nt\nruc\nt\nure\n,\nre sum es\n,\npersonne\nl\nda\nt\na\n,\ncompensa\nt\ni\nons\nt\nruc\nt\nure\n,\nperformanceeva\nl\nua\nt\ni\nonsand\nt\nerm\ni\nna\nt\ni\nonarrangemen\nt\nsordocumen\nt\ns\n.\nPropr\ni\ne\nt\nary5\n.\nDev e\nl\nopmen\nt\ns\n.\nIherebyass\ni\ngnand\nt\nransferInforma\nt\ni\non(I)\ni\nnforma\nt\ni\nonCompanyfrom\ni\nnc\nl\nud es\n,\nw\ni\nt\nhou\nt\nl\ni\nm\ni\nt\na\nt\ni\non\n,\nand\n,\nt\no\nt\nheex\nt\nen\nt\nanysuchass\ni\ngnmen\nt\ncanno\nt\nbemadea\nt\npresen\nt\n,\nw\ni\nl\nl\nass\ni\ngnand\nt\nra ns fer\n,\nt\no\nt\nheCompanyand\ni\nt\nssuccessorsandass\ni\ngns\n,\na\nl\nl\nmyr\ni\ngh\nt\n,\nt\ni\nt\nl\neand\ni\nn\nt\ne res\nt\ni\nnand\nt\noa\nl\nl\nDeve\nl\nopmen\nt\ns\nt\nha\nt\n:\n(a)are crea\nt\ned\n,\nde ve\nl\nop ed\n,\nma de\n,\nconce\ni\nvedorreduced\nt\noprac\nt\ni\ncebyme(a\nl\noneor\nj\no\ni\nn\nt\nl\nyw\ni\nt\nhrece\ni\nved\ni\nnconf\ni\ndenceby\nt\nhe\ni\nt\nscus\nt\nomersorsupp\nl\ni\nersoro\nt\nher\nt\nh\ni\nrdpar\nt\ni\nes\n,\nand(2)a\nl\nl\nb\ni\no\nl\nog\ni\nca\nl\norchem\ni\nca\nl\nma\nt\ner\ni\na\nl\nsando\nt\nher\nt\nang\ni\nb\nl\neembod\ni\nmen\nt\nsof\nt\nhe\nPropr\ni\ne\nt\nary Info rm a\nt\ni\non\n.\no\nt\nhers)orundermyd\ni\nrec\nt\ni\nonRecogn\ni\nt\ni\nonofCompany\n'\nsR\ni\ngh\nt\ns\n.\nIw\ni\nl\nl\n(co\nl\nl\nec\nt\ni\nve\nl\ny\n,\n"conce\ni\nved")dur\ni\nng\nt\nheper\ni\nodofmyemp\nl\noymen\nt\nands\ni\nx (6)mon\nt\nhs\nt\nhereaf\nt\nerand\nt\nha\nt\nre\nl\na\nt\ne\nt\no\nt\nhebus\ni\nnessof\nt\nheCompanyor\nt\noproduc\nt\ns\n,\nme\nt\nhodsorserv\ni\ncesbe\ni\nngresearched\n.\nde ve\nl\nop ed\n,\nman u fac\nt\nuredorso\nl\ndby\nt\nheCompany\n;\nor(b)resu\nl\nt\nfro m\nt\na sks ass\ni\ngned\nt\nomeby\nt\nheCompany\n;\nor(c)resu\nl\nt\nfro m\nt\nheuseofprem\ni\nses\n,\nPropr\ni\ne\nt\nary In form a\nt\ni\nonorpersona\nl\nproper\nt\ny(whe\nt\nher\nt\nang\ni\nb\nl\neor7no\nt\n,\na\nt\nany\nt\ni\nme\n,\nw\ni\nt\nhou\nt\nt\nheCompany\n'\nspr\ni\norwr\ni\nt\nt\nenperm\ni\nss\ni\non\n,\ne\ni\nt\nherdur\ni\nngoraf\nt\nermyemp\nl\noymen\nt\n,\nd\ni\nsc\nl\noseor\nt\nransferanyPropr\ni\ne\nt\naryInforma\nt\ni\non\nt\noanyoneou\nt\ns\ni\ndeof\nt\nheCompany\n,\noruscorperm\ni\nt\nt\nobeusedanyPropr\ni\ne\nt\nary Inf orm a\nt\ni\nonforanypurposeo\nt\nher\nt\nhan\nt\nheperformanceofmydu\nt\ni\nesasanemp\nl\noyeeof\nt\nheCompany\n.\nIw\ni\nl\nl\ncoopera\nt\new\ni\nt\nh\nt\nhe\nNO N-CO MI\n'\nITITION\n,\nNON-SOLJCIIATION\n,\nCONFIDENTIALITYANDASSIGNMENTAGREEMENT\ni\nn\nt\nang\ni\nb\nl\ne)owned\n,\nl\ni\ncensedor\nl\neasedby\nt\nheIunders\nt\nand\nt\nha\nt\nt\no\nt\nheex\nt\nen\nt\nt\nh\ni\nsAgreemen\nt\ni\nsrequ\ni\nred\nt\nobecons\nt\nrue d\ni\nnaccordancew\ni\nt\nh\nt\nhe\nl\nawsofanys\nt\na\nt\newh\ni\nchprec\nl\nudesarequ\ni\nrem en\nt\ni\nnanemp\nl\noyeeagreemen\nt\nt\no ass\ni\ngn cer\nt\na\ni\nnc\nl\nassesof\ni\nnven\nt\ni\nonsmadebyanemp\nl\noyee\n,\nt\nh\ni\nsSec\nt\ni\non5w\ni\nl\nl\nbe\ni\nn\nt\nerp re\nt\nedno\nt\nt\noapp\nl\ny\nt\noany\ni\nnven\nt\ni\nonwh\ni\nchacour\nt\nru\nl\nesand\n/\nor\nt\nheCompanyagreesfa\nl\nl\nsw\ni\nt\nh\ni\nnsuchc\nl\nass es\n.\nCompany(co\nl\nl\nec\nt\ni\nve\nl\ny\n,\n'\n'\nCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\ns")\n,\nanda\nl\nl\npa\nt\nen\nt\nr\ni\ngh\nt\ns\n,\nt\nrademarks\n,\ncopyr\ni\ngh\nt\nsando\nt\nher\ni\nn\nt\ne\nl\nl\nec\nt\nua\nl\nproper\nt\nyr\ni\ngh\nt\ns\ni\nna\nl\nl\nco un\nt\nr\ni\nesand\nt\nerr\ni\nt\nor\ni\neswor\nl\ndw\ni\ndec\nl\na\ni\nm\ni\nng\n,\ncover\ni\nngoro\nt\nh erw\ni\nsear\ni\ns\ni\nngfromorper\nt\na\ni\nn\ni\nng\nt\noCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\ns (co\nl\nl\nec\nt\ni\nve\nl\ny\n,\n"In\nt\ne\nl\nl\nec\nt\nua\nl\nProper\nt\nyR\ni\ngh\nt\ns")\n.\nIfur\nt\nheragree\nt\nha\nt\n"Company-Re\nl\na\nt\nedDeve\nl\nopmen\nt\ns\n'\n'\ni\nnc\nl\nude\n,\nw\ni\nt\nhou\nt\nl\ni\nm\ni\nt\na\nt\ni\non\n,\na\nl\nl\nDe ve\nl\nopmen\nt\ns\nt\nha\nt\n(\ni\n)wereconce\ni\nvedbymebeforemyemp\nl\noymen\nt\n,\n(\ni\ni\n)re\nl\na\nt\ne\nt\no\nt\nhebus\ni\nnessof\nt\nheCompanyor\nt\noproduc\nt\ns\n,\nme\nt\nhodsorserv\ni\nces be\ni\nngresearched\n,\ndeve\nl\noped\n,\nmanufac\nt\nuredorso\nl\ndby\nt\nheCompany\n,\nand(\ni\ni\ni\n)wereno\nt\nsub\nj\nec\nt\nt\noanob\nl\ni\nga\nt\ni\non\nt\noass\ni\ngn\nt\noano\nt\nheren\nt\ni\nt\ny\n.\nwhenconce\ni\nved\n.\nIw\ni\nl\nl\nmakefu\nl\nl\nandpromp\nt\nd\ni\nsc\nl\nos ure\nt\no\nt\nheCompanyofa\nl\nl\nCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\ns\n,\nas we\nl\nl\nasa\nl\nl\no\nt\nherDeve\nl\nopmen\nt\nsconce\ni\nvedbymedur\ni\nng\nt\nheper\ni\nodofmyemp\nl\noymen\nt\nands\ni\nx (6)6\n.\nDocumen\nt\nsandO\nt\nherMa\nt\ner\ni\na\nl\ns\n.\nIw\ni\nl\nl\nkeepandma\ni\nn\nt\na\ni\nnadequa\nt\neandcurren\nt\nrecordsofa\nl\nl\nPropr\ni\ne\nt\naryInforma\nt\ni\nonandCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\nsconce\ni\nvedbyme\n,\nwh\ni\nchrecordsw\ni\nl\nl\nbeava\ni\nl\nab\nl\ne\nt\noandrema\ni\nn\nt\nheso\nl\neproper\nt\nyof\nt\nheCompanya\nt\na\nl\nl\nt\ni\nmes\n.\nmemoranda\n,\nrepor\nt\ns\n,\nA\nl\nl\nf\ni\nl\nes\n,\nl\ne\nt\nt\ners\n,\nno\nt\nes\n,\nrecords\n,\nda\nt\na\n,\nske\nt\nch es\n,\nd raw\ni\nngs\n,\nno\nt\nebooks\n,\nl\nayou\nt\ns\n,\nchar\nt\ns\n,\nquo\nt\na\nt\ni\nonsandpropos_a\nl\ns\n,\nspec\ni\nf\ni\nca\nt\ni\nonshee\nt\ns\n,\nprogram\nl\ni\ns\nt\ni\nngs\n,\nb\nl\nueprm\nt\ns\n,\nmode\nl\ns\n,\npro\nt\no\nt\nyp es\n,\nma\nt\ner\ni\na\nl\nsoro\nt\nherwr\ni\nt\nt\nen\n,\npho\nt\nograph\ni\ncoro\nt\nher\nt\nang\ni\nb\nl\nema\nt\ner\ni\na\nl\ncon\nt\na\ni\nn\ni\nngorembody\ni\nngPropr\ni\ne\nt\naryInforma\nt\ni\non\n,\nwhe\nt\nhercrea\nt\nedbymeoro\nt\nhe rs\n,\nwh\ni\nchcome\ni\nn\nt\nomycus\nt\nodyorpossess\ni\non\n,\nare\nt\nheexc\nl\nus\ni\nve proper\nt\nyof\nt\nheCompany\nt\nobeusedbymeon\nl\ny\ni\nn\nt\nheperformanceofmydu\nt\ni\nesfor\nt\nheCompany\n.\nIn\nt\nheeven\nt\nof\nt\nhe\nt\nerm\ni\nna\nt\ni\nonofmyemp\nl\noymen\nt\nforanyreason\n,\nIw\ni\nl\nl\nde\nl\ni\nver\nt\no\nt\nheCompanya\nl\nl\nof\nt\nhe fore go\ni\nng\n,\nanda\nl\nl\no\nt\nherma\nt\ner\ni\na\nl\nsofanyna\nt\nureper\nt\na\ni\nn\ni\nng\nt\no\nt\nhePropr\ni\ne\nt\nary In form a\nt\ni\nonof\nt\nheCompanyand\nt\nomywork\n,\nandw\ni\nl\nl\nno\nt\nt\nakeorkeep\ni\nnmypossess\ni\nonanyof\nt\nhe fore go\ni\nngoranycop\ni\nes\n.\nAnyproper\nt\nys\ni\nt\nua\nt\nedon\nt\nheCompany\n'\nsprem\ni\nsesandownedby\nt\nheCompany\n,\ni\nnc\nl\nud\ni\nng\nl\nabora\nt\noryspace\n,\ncompu\nt\ners\n,\nd\ni\nsksando\nt\nhers\nt\noragemed\ni\na\n,\nf\ni\nl\ni\nngcab\ni\nne\nt\nsoro\nt\nherworkareas\n,\ni\nssub\nj\nec\nt\nt\no\ni\nnspec\nt\ni\nonby\nt\nheCompanya\nt\nany\nt\ni\nmew\ni\nt\nhorw\ni\nt\nhou\nt\nno\nt\ni\nce\n.\nmon\nt\nhs\nt\nhereaf\nt\ner\n.\nIacknow\nl\nedge\nt\nha\nt\na\nl\nl\nworkperformedbymeasanemp\nl\noyeeof\nt\nheCompany\ni\nsona"work\nt\norh\ni\nre"bas\ni\ns\n.\nIherebywa\ni\nvea\nl\nl\nc\nl\na\ni\nms\nt\noanymora\nl\nr\ni\ngh\nt\nsoro\nt\nherspec\ni\na\nl\nr\ni\ngh\nt\nswh\ni\nchImayhaveoraccrue\ni\nnanyCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\ns\n.\nd\ni\nscover\ni\nes\n,\n'\n'\nDeve\nl\nopmen\nt\ns"mean\ni\nnv en\nt\ni\nons\n,\ndes\ni\ngns\n,\ndeve\nl\nopmen\nt\ns\n,\nme\nt\nhods\n,\nb\ni\no\nl\nog\ni\nca\nl\nda\nt\nabases\n,\nmod\ni\nf\ni\nca\nt\ni\nons\n,\ni\nmprovemen\nt\ns\n,\nprocesses\n,\norchem\ni\nca\nl\nma\nt\ner\ni\na\nl\ns\n,\na\nl\ngor\ni\nt\nhms\n,\ncompu\nt\nerprograms\n,\nfo rmu\nl\nae\n,\nt\nechn\ni\nques\n,\nt\nradesecre\nt\ns\n,\ngra ph\ni\ncsor\ni\nmages\n,\naud\ni\noorv\ni\nsua\nl\nworks\n,\nando\nt\nherworksofau\nt\nho rsh\ni\np\n.\nToprec\nl\nudeanyposs\ni\nb\nl\neuncer\nt\na\ni\nn\nt\ny\n,\nIhavese\nt\nfor\nt\nhonAppend\ni\nxAa\nt\nt\nachedhere\nt\noacomp\nl\ne\nt\ne\nl\ni\ns\nt\nofmebeforemyCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\nsconce\ni\nvedbyemp\nl\noymen\nt\nt\nha\nt\nareno\nt\nDeve\nl\nopmen\nt\ns("Pr\ni\norInven\nt\ni\nons\n'\n'\n)\n.\nIhavea\nl\nso\nl\ni\ns\nt\nedonAppend\ni\nxAa\nl\nl\npa\nt\nen\nt\nr\ni\ngh\nt\nsofwh\ni\nchIamanEnforcemen\nt\nofIn\nt\ne\nl\nl\nec\nt\nua\nl\nProper\nt\ny7\n.\ni\nnven\nt\nor\n,\no\nt\nher\nt\nhan\nt\nhosecon\nt\na\ni\nnedw\ni\nt\nh\ni\nnR\ni\ngh\nt\ns\n.\nIw\ni\nl\nl\ncoopera\nt\nefu\nl\nl\nyw\ni\nt\nh\nt\nheCompany\n,\nbo\nt\nhdur\ni\nngandaf\nt\nermyemp\nl\noymen\nt\nw\ni\nt\nh\nt\nhe In\nt\ne\nl\nl\nec\nt\nua\nl\nProper\nt\nyR\ni\ngh\nt\ns ("O\nt\nherPa\nt\nen\nt\nR\ni\ngh\nt\ns")\n.\nIfnosuchd\ni\nsc\nl\nosure\ni\nsa\nt\nt\nached\n,\nIrepresen\nt\nt\nha\nt\nt\nherearenoPr\ni\norInven\nt\ni\nonsorO\nt\nherPa\nt\nen\nt\nR\ni\ngh\nt\ns\n.\nIf\n,\ni\nnhecourseofmyemp\nl\noymen\nt\nw\ni\nt\nh\nt\nheCompany\n,\nImcorpora\nt\neaPr\ni\norInven\nt\ni\non\ni\nn\nt\noaCompanyproduc\nt\n,\nprocessorresearchordeve\nl\nopmen\nt\nprogramoro\nt\nherworkdonefor\nt\nheCompany\n,\nIherebygran\nt\nt\no\nt\nheCompanyanonexc\nl\nus\ni\nve\n,\nroy a\nl\nt\ny-\nt\nree\n,\nfu\nl\nl\nvpa\ni\nd-up\n,\ni\nrrev o cab\nl\ne\n,\nperpe\nt\nua\nl\n,\nwor\nl\ndw\ni\nde\nl\ni\ncens(w\ni\nt\nh\nt\nhefu\nl\nl\nr\ni\ngh\nt\nt\nosub\nl\ni\ncense\nt\nhroughmu\nl\nt\ni\np\nl\ne\nt\n1e rs)\nt\nomake\n,\nhavemade\n.\nmod\ni\nfy\n.\nuse\n,\nofferforsa\nl\ne\n.\nCompany\n,\nw\ni\nt\nhrespec\nt\nt\no\nt\nheprocuremen\nt\n,\nma\ni\nn\nt\nenanceandenforcemen\nt\nof In\nt\ne\nl\nl\nec\nt\nua\nl\nProper\nt\nyR\ni\ngh\nt\ns\n,\naswe\nl\nl\nasa\nl\nl\no\nt\nherpa\nt\nen\nt\nr\ni\ngh\nt\ns\n,\nt\nrademarks\n,\ncopyr\ni\ngh\nt\nsando\nt\nher\ni\nn\nt\ne\nl\nl\nec\nt\nua\nl\nproper\nt\nyr\ni\ngh\nt\ns\ni\nna\nl\nl\nco un\nt\nr\ni\nesand\nt\nerr\ni\nt\nor\ni\neswor\nl\ndw\ni\ndeownedbvor\nl\ni\ncensed\nt\no\nt\nheCompany\n.\nIw\ni\nl\nl\ns\ni\ngn\n,\nbo\nt\nhdur\ni\nngandaf\nt\ner\nt\nhe\nt\nermof\nt\nh\ni\nsAgreemen\nt\n,\na\nl\nl\npapers\n,\ni\nnc\nl\nud\ni\nngcopyr\ni\ngh\nt\napp\nl\ni\nca\nt\ni\nons\n,\npa\nt\nen\nt\napp\nl\ni\nca\nt\ni\nons\n,\npr\ni\nor\ni\nt\nyr\ni\ngh\nt\ns\n,\nCompanymaydec\nl\nara\nt\ni\nons\n.\noa\nt\nhs\n,\nass\ni\ngnmen\nt\nsofandpowersofa\nt\nt\norney\n,\nwh\ni\nch\nt\nhe\ni\nmp or\nt\nandse\nl\nl\nsuchPr\ni\norInven\nt\ni\non\n.\ndeemnecessaryordes\ni\nrab\nl\ne\ni\nnorder\nt\no pro\nt\nec\nt\ni\nt\nsr\ni\ngh\nt\nsand\ni\nn\nt\nere s\nt\ns\ni\nnanyCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\norIn\nt\ne\nl\nl\nec\nt\nua\nl\nProper\nt\nyR\ni\ngh\nt\ns\n.\nIf\nt\nheCompany\ni\nsunab\nl\ne\n,\naf\nt\nerreasonab\nl\neeffor\nt\n,\nt\nosecuremys\ni\ngna\nt\nureonanysuchpapers\n,\nIhereby\ni\nrrevocab\nl\nydes\ni\ngna\nt\neandappo\ni\nn\nt\neachoff\ni\ncerof\nt\nheNo\nt\nw\ni\nt\nhs\nt\nand\ni\nng\nt\nheforego\ni\nng\n.\nIw\ni\nl\nl\nno\nt\ni\nncorpora\nt\ne\n,\norperm\ni\nt\nt\nobe\ni\nncorpora\nt\ned\n,\nPr\ni\norInven\nt\ni\nons\ni\nnanyCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\nw\ni\nt\nhou\nt\nt\nheCompany\n'\nspr\ni\norwr\ni\nt\nt\nenconsen\nt\n.\n2\nNON-COMPETITION\n,\nNON-SOLICITATION\n,\nCONFIDENTIALITYANDASSIGNMENTAGREEMENTsuchagreemen\nt\nsorregard\ni\nng\nt\nheconf\ni\nden\nt\ni\na\nl\nna\nt\nureofsuchwork\n.\nIagree\nt\nocomp\nl\nyw\ni\nt\nhanysuchob\nl\ni\nga\nt\ni\nonsorres\nt\nr\ni\nc\nt\ni\nonsupon\nt\nhed\ni\nrec\nt\ni\nonof\nt\nheCompany\n.\nInadd\ni\nt\ni\non\nt\no\nt\nher\ni\ngh\nt\nsass\ni\ngnedunderSec\nt\ni\non5\n,\nIa\nl\nso ass\ni\ngn\nt\no\nt\nheCompany(oranyof\ni\nt\nsnom\ni\nnees)a\nl\nl\nr\ni\ngh\nt\nswh\ni\nchIhaveoracqu\ni\nred\ni\nnanyDeve\nl\nopmen\nt\ns\n,\nfu\nl\nl\nt\ni\nt\nl\ne\nt\nowh\ni\nch\ni\nsrequ\ni\nred\nt\nobe\ni\nn\nt\nhe Un\ni\nt\nedS\nt\na\nt\nesunderanycon\nt\nrac\nt\nbe\nt\nwe en\nt\nheCompanyand\nt\nheUn\ni\nt\nedS\nt\na\nt\nesoranyof\ni\nt\nsagenc\ni\nes\n.\nCompanyasmyagen\nt\nanda\nt\nt\norney-\ni\nn -fac\nt\nt\noexecu\nt\neanysuchpapersonmybeha\nl\nf\n.\nand\nt\no\nt\nakeanyanda\nl\nl\nac\nt\ni\nonsas\nt\nheCompanymaydeemnecessaryordes\ni\nrab\nl\ne\ni\nnorder\nt\nopro\nt\nec\nt\ni\nt\nsr\ni\ngh\nt\nsand\ni\nn\nt\nere s\nt\ns\ni\nn\nt\nhesame\n.\n8\n.\nNon-Compe\nt\ni\nt\ni\nonandNon-So\nl\ni\nc\ni\nt\na\nt\ni\non\n.\nIn ord er\nt\no pro\nt\nec\nt\nt\nheCompany\n'\nsPropr\ni\ne\nt\naryInforma\nt\ni\nonandgoodw\ni\nl\nl\n,\ndur\ni\nngmyemp\nl\noymen\nt\nandforaper\ni\nodof\nt\nwe\nl\nve(12)mon\nt\nhsfo\nl\nl\now\ni\nng\nt\nhe\nt\nerm\ni\nna\nt\ni\nonofmyemp\nl\noymen\nt\nforanyreason(\nt\nhe"Res\nt\nr\ni\nc\nt\nedPer\ni\nod")\n,\nIw\ni\nl\nl\nno\nt\nd\ni\nrec\nt\nl\nyor\ni\nnd\ni\nrec\nt\nl\ny\n,\nwhe\nt\nherasowner\n,\npar\nt\nner\n,\nshareho\nl\nder\n,\nd\ni\nrec\nt\nor\n,\nconsu\nl\nt\nan\nt\n,\nagen\nt\n,\nemp\nl\noyee\n,\nco-ven\nt\nureroro\nt\nh erw\ni\nse\n,\nengage\n,\npar\nt\ni\nc\ni\npa\nt\neor\ni\nnves\nt\ni\nnanybus\ni\nnessac\nt\ni\nv\ni\nt\nyanywhere\ni\nn\nt\nhewor\nl\nd\nt\nha\nt\ndeve\nl\nops\n.\nmanufac\nt\nuresormarke\nt\nsproduc\nt\nsorserv\ni\nces\ni\nn\nt\nheCompany\n'\nsF\ni\ne\nl\ndofBus\ni\nness(asdef\ni\nnedbe\nl\now)\n.\nor\nt\nha\nt\ndeve\nl\nopsormanufac\nt\nuresanyproduc\nt\ns\n.\norperformsanyserv\ni\nces\n,\nt\nha\nt\nareo\nt\nh erw\ni\nsecompe\nt\ni\nt\ni\nvew\ni\nt\nh\nt\nheproduc\nt\nsorserv\ni\ncesof\nt\nheCompany\n,\norproduc\nt\nsorserv\ni\nces\nt\nha\nt\nt\nheCompanyhasunderdeve\nl\nopmen\nt\nor\nt\nha\nt\nwe re\nt\nhesub\nj\nec\nt\nofac\nt\ni\nvep\nl\nann\ni\nngdur\ni\nng\nt\nhe\nl\nas\nt\nt\nwe\nl\nve(12)mon\nt\nhsofmyemp\nl\noymen\nt\n;\npro v\ni\nded\nt\nha\nt\nt\nh\ni\nsw\ni\nl\nl\nno\nt\np roh\ni\nb\ni\nt\nanyposs\ni\nb\nl\ne\ni\nnves\nt\nmen\nt\ni\nnpub\nl\ni\nc\nl\ny\nt\nradeds\nt\nockofacompanyrepresen\nt\ni\nng\nl\ness\nt\nhanonepercen\nt\nof\nt\nhes\nt\nockofsuchcompany\n.\nIn\nadd\ni\nt\ni\non\n,\ndur\ni\nng\nt\nheRes\nt\nr\ni\nc\nt\nedPer\ni\nod\n,\nIw\ni\nl\nl\nno\nt\n,\nd\ni\nrec\nt\nl\nyor\ni\nnd\ni\nrec\nt\nl\ny\n,\ni\nnanymanner\n,\no\nt\nher\nt\nhanfor\nt\nhebenef\ni\nt\nof\nt\nheCompany\n,\n(a)ca\nl\nl\nupon\n,\nso\nl\ni\nc\ni\nt\n,\nd\ni\nver\nt\nor\nt\nakeawayanyof\nt\nhecus\nt\nomers\n,\nbus\ni\nnessorprospec\nt\ni\nvecus\nt\nomersof\nt\nheCompanyoranyof\ni\nt\nssupp\nl\ni\ners\n,\nand\n/\nor(b)so\nl\ni\nc\ni\nt\n,\nen\nt\ni\nceora\nt\nt\nemp\nt\nt\nopersuadeanyo\nt\nheremp\nl\noyeeorconsu\nl\nt\nan\nt\nof\nt\nheCompany\nt\no\nl\neave\nt\nhe serv\ni\ncesof\nt\nheCompanyforanyreason\n.\nIacknow\nl\nedgeandagree\nt\nha\nt\ni\nfIv\ni\no\nl\na\nt\neanyof\nt\nheprov\ni\ns\ni\nonsof\nt\nh\ni\nsSec\nt\ni\non8\n,\nt\nherunn\ni\nngof\nt\nhe Res\nt\nr\ni\nc\nt\nedPer\ni\nodw\ni\nl\nl\nbe ex\nt\nendedby\nt\nhe\nt\ni\nmedur\ni\nng wh\ni\nchIengage\ni\nnsuchv\ni\no\nl\na\nt\ni\non (s)\n.\nForpurposesof\nt\nh\ni\nsSec\nt\ni\non\n,\nt\nheCompany\n'\nsF\ni\ne\nl\ndofBus\ni\nn ess sha\nl\nl\nmeanresearch\n.\nd\ni\nscovery\n,\ndes\ni\ngn\n,\nmanufac\nt\nure\n,\nI0\n.\nPr\ni\norAgreemen\nt\ns\n.\nIherebyrepresen\nt\nt\nha\nt\n,\nexcep\nt\nasIhavefu\nl\nl\nyd\ni\nsc\nl\nosedprev\ni\nous\nl\ny\ni\nnwr\ni\nt\ni\nng\nt\no\nt\nheCompany\n,\nIamno\nt\nboundby\nt\nhe\nt\nermsofanyagreemen\nt\nw\ni\nt\nhanyprev\ni\nousemp\nl\noyeroro\nt\nherpar\nt\ny\nt\norefra\ni\nn from us\ni\nngord\ni\nsc\nl\nos\ni\nngany\nt\nradesecre\nt\norconf\ni\nden\nt\ni\na\nl\norpropr\ni\ne\nt\nary\ni\nnforma\nt\ni\non\ni\nn\nt\nhecourseofmyemp\nl\noymen\nt\nw\ni\nt\nh\nt\nheCompanyor\nt\nore\nt\nra\ni\nnfromcompe\nt\ni\nng\n,\nd\ni\nrec\nt\nl\nyor\ni\nnd\ni\nrec\nt\nl\ny\n,\nw\ni\nt\nh\nt\nhebus\ni\nnessofsuchprev\ni\nousemp\nl\noyeroranyo\nt\nherpar\nt\ny\n.\nIfur\nt\nherrepresen\nt\nt\nha\nt\nmyperformanceofa\nl\nl\nt\nhe\nt\nermsof\nt\nh\ni\nsAgreemen\nt\nasanemp\nl\noyeeof\nt\nheCompanydoesno\nt\nandw\ni\nl\nl\nno\nt\nbreachanyagreemen\nt\nt\nokeep\ni\nnconf\ni\ndencepropr\ni\ne\nt\nary\ni\nnforma\nt\ni\non\n,\nknow\nl\nedgeorda\nt\naacqu\ni\nredbyme\ni\nnconf\ni\ndenceor\ni\nn\nt\nrus\nt\npr\ni\nor\nt\nomyemp\nl\noymen\nt\nw\ni\nt\nh\nt\nheCompany\n.\nIw\ni\nl\nl\nno\nt\nd\ni\nsc\nl\nose\nt\no\nt\nheCompanyor\ni\nnduce\nt\nheCompany\nt\nouseanyconf\ni\nden\nt\ni\na\nl\norpropr\ni\ne\nt\nary\ni\nnforma\nt\ni\nonorma\nt\ner\ni\na\nl\nbe\nl\nong\ni\nng\nt\noanyprev\ni\nousemp\nl\noyeroro\nt\nh ers\n.\nII\n.\nRem ed\ni\nesUponBreach\n.\nIunders\nt\nand\nt\nha\nt\nt\nhe res\nt\nr\ni\nc\nt\ni\nonscon\nt\na\ni\nned\ni\nn\nt\nh\ni\nsAgreemen\nt\narenecessaryfor\nt\nhepro\nt\nec\nt\ni\non of\nt\nhebus\ni\nnessandgoodw\ni\nl\nl\nof\nt\nheCompanyandIcons\ni\nder\nt\nhem\nt\nobereasonab\nl\neforsuch\npu rp ose\n.\nAnybreachof\nt\nh\ni\nsAgreemen\nt\ni\ns\nl\ni\nke\nl\ny\nt\nocause\nt\nheCompanysubs\nt\nan\nt\ni\na\nl\nand\ni\nrrevocab\nl\nedamageand\nt\nherefore\n,\ni\nn\nt\nheeven\nt\nofsuchbreach\n,\nt\nheCompany\n,\ni\nnadd\ni\nt\ni\non\nt\nosucho\nt\nherremed\ni\neswh\ni\nchmaybeava\ni\nl\nab\nl\ne\n,\nw\ni\nl\nl\nbeen\nt\ni\nt\nl\ned\nt\nospec\ni\nf\ni\ncperformanceando\nt\nher\ni\nn\nj\nunc\nt\ni\nve re\nl\ni\nef\n.\n12\n.\nUse of Vo\ni\nce\n,\nImageandL\ni\nkeness\n.\nIg\ni\nvec\nl\ni\nn\ni\nca\nl\ndeve\nl\nopmen\nt\n,\nsee k\ni\nngofregu\nl\na\nt\nory\nt\nheCompanyperm\ni\nss\ni\non\nt\nousemy vo\ni\nce\n,\ni\nmageor\nl\ni\nkeness\n,\nw\ni\nt\nhorw\ni\nt\nhou\nt\nus\ni\nngmyname\n,\nfor\nt\nhepurposesofadver\nt\ni\ns\ni\nngandpromo\nt\ni\nng\nt\nheCompany\n,\norforo\nt\nherpurposesdeemedappropr\ni\na\nt\neby\nt\nheCompany\ni\nn\ni\nt\nsreasonab\nl\ned\ni\nsc re\nt\ni\non\n,\nexcep\nt\nt\no\nt\nheex\nt\nen\nt\nexpress\nl\nyproh\ni\nb\ni\nt\nedby\nl\naw\n.\napprova\nl\ns\n,\nma rke\nt\ni\nngand\n/\norcommerc\ni\na\nl\ni\nza\nt\ni\nonof(\ni\n)an\nt\ni\nbod\ni\nes\n,\n(\ni\ni\n)an\nt\ni\ngensor(\ni\ni\ni\n)eng\ni\nneeredpro\nt\ne\ni\nn-oram\ni\nnoac\ni\nd-basedagen\nt\nsfora\nl\nl\nusesand\ni\nnd\ni\nca\nt\ni\nons\ni\nnhumansoran\ni\nma\nl\ns\nt\nha\nt\nac\nt\nt\nhroughmodu\nl\na\nt\ni\non(\ni\nnc\nl\nud\ni\nnge\ni\nt\nherasagon\ni\ns\nt\nsoran\nt\nagon\ni\ns\nt\ns)of\nt\nhe ac\nt\ni\nv\ni\nt\nyofpro\nt\ne\ni\nngrow\nt\nh fac\nt\norsbe\nl\nong\ni\nng\nt\no\nt\nheTransform\ni\nngGrow\nt\nhFac\nt\no r-su pe rfam\ni\nl\ny\n.\n13\n.\nPub\nl\ni\nca\nt\ni\nonsandPub\nl\ni\ncS\nt\na\nt\nem en\nt\ns\n.\nIw\ni\nl\nl\nob\nt\na\ni\nn\nt\nheCompany\n'\nswr\ni\nt\nt\nenapprova\nl\nbeforepub\nl\ni\nsh\ni\nngorsubm\ni\nt\nt\ni\nngforpub\nl\ni\nca\nt\ni\nonanyma\nt\ner\ni\na\nl\nt\nha\nt\nre\nl\na\nt\nes\nt\nomyworka\nt\nt\nheCompanyand\n/\nor\ni\nncorpora\nt\nesanyPropr\ni\ne\nt\naryInforma\nt\ni\non\n.\nToensure\nt\nha\nt\nt\nheCompanyde\nl\ni\nversacons\ni\ns\nt\nen\nt\nmessageabou\nt\ni\nt\nsproduc\nt\ns\n,\ns erv\ni\ncesandopera\nt\ni\nons\nt\no\nt\nhepub\nl\ni\nc\n,\n9\n.\nGovernmen\nt\nCon\nt\nrac\nt\ns\n.\nIacknow\nl\nedge\nt\nha\nt\nt\nheCompanymayhave\nt\nrom\nt\ni\nme\nt\no\nt\ni\nmeagreemen\nt\nsw\ni\nt\nho\nt\nherpersonsorw\ni\nt\nh\nt\nheUn\ni\nt\nedS\nt\na\nt\nesGovernmen\nt\nor\ni\nt\nsagenc\ni\neswh\ni\nch\ni\nmposeob\nl\ni\nga\nt\ni\nonsorres\nt\nr\ni\nc\nt\ni\nonson\nt\nheCompanyregard\ni\nng\ni\nnven\nt\ni\nonsmadedur\ni\nng\nt\nhecourseofwork under3\n/\n\\n.\n)(>-COMPIIT!ION\n,\nNON-SOLICITATION\n,\nCONFIDINTIALITYANDASSIGNMENTAGREEMENTandfur\nt\nher\ni\nnrecogm\nt\nwn\nt\nha\nt\nevenpos\ni\nt\ni\nves\nt\na\nt\nem en\nt\nsmayhaveade\nt\nr\ni\nmen\nt\na\nl\ne ffec\nt\non\nt\nheCompany\ni\nncer\nt\na\ni\nnsecur\ni\nt\ni\nes\nt\nransac\nt\ni\nonsando\nt\nhercon\nt\nex\nt\ns\n,\nanys\nt\na\nt\nemen\nt\nabou\nt\nt\nheCompanywh\ni\nchIcrea\nt\ne\n,\npub\nl\ni\nshorpos\nt\ndur\ni\nngmyper\ni\nodofemp\nl\noymen\nt\nandfors\ni\nx (6)mon\nt\nhs\nt\nhereaf\nt\ner\n,\nonanymed\ni\naaccess\ni\nb\nl\neby\nt\nhepub\nl\ni\nc\n,\ni\nnc\nl\nud\ni\nng bu\nt\nno\nt\nl\ni\nm\ni\nt\ned\nt\noe\nl\nec\nt\nron\ni\ncbu\nl\nl\ne\nt\ni\nnboardsandIn\nt\nern e\nt\nbasedcha\nt\nrooms\n,\nmus\nt\nf\ni\nrs\nt\nberev\ni\newedandapprovedbyanoff\ni\ncerof\nt\nheCompanybefore\ni\nt\ni\nsre\nl\neased\ni\nn\nt\nhepub\nl\ni\ncdoma\ni\nn\n.\nof\nt\nh\ni\nsAgreemen\nt\nt\noanyprospec\nt\ni\nve emp\nl\noyer\n,\npar\nt\nnerorco-ven\nt\nurerpr\ni\nor\nt\noen\nt\ner\ni\nng\ni\nn\nt\noabus\ni\nnessre\nl\na\nt\ni\nonsh\ni\npw\ni\nt\nhsuchpersonoren\nt\ni\nt\ny\n,\nand(\ni\ni\n)no\nt\ni\nfY\nt\nheCompanyofanysuchbus\ni\nnessre\nl\na\nt\ni\non sh\ni\np\n.\n18\n.\nSeverab\ni\nl\ni\nt\ny\n.\nIncaseanyprov\ni\ns\ni\nons(orpor\nt\ni\nons\nt\nhereof)con\nt\na\ni\nned\ni\nn\nt\nh\ni\nsAgreemen\nt\nw\ni\nl\nl\n,\nforanyreason\n,\nbehe\nl\nd\ni\nnva\nl\ni\nd\n,\ni\nl\nl\nega\nl\norunenforceab\nl\ne\ni\nnanyrespec\nt\n,\nsuch\ni\nnva\nl\ni\nd\ni\nt\ny\n,\ni\nl\nl\nega\nl\ni\nt\nyorunenforceab\ni\nl\ni\nt\nyw\ni\nl\nl\nno\nt\naffe c\nt\nt\nheo\nt\nherprov\ni\ns\ni\nonsof\nt\nh\ni\nsAgreemen\nt\n,\nand\nt\nh\ni\nsAgreemen\nt\nw\ni\nl\nl\nbecons\nt\nruedas\ni\nfsuch\ni\nnva\nl\ni\nd\n,\ni\nl\nl\nega\nl\norunenforceab\nl\neprov\ni\ns\ni\nonhadneverbeencon\nt\na\ni\nnedJ4\n.\nNoEmp\nl\noymen\nt\nOb\nl\ni\nga\nt\ni\non\n.\nIunders\nt\nand\nt\nha\nt\nt\nh\ni\nsAgreemen\nt\ndoesno\nt\nc rea\nt\neanob\nl\ni\nga\nt\ni\nonon\nt\nheCompanyoranyo\nt\nherperson\nt\nocon\nt\ni\nnuemyhere\ni\nn\n.\nIf\n,\nmoreover\n,\nanyoneormoreof\nt\nheprov\ni\ns\ni\nonscon\nt\na\ni\nned\ni\nn\nt\nh\ni\nsAgreemen\nt\nw\ni\nl\nl\nforanyreasonbehe\nl\nd\nt\nobeexcess\ni\nve\nl\nybroadas\nt\nodura\nt\ni\non\n,\ngeograph\ni\nca\nl\nscope\n,\nac\nt\ni\nv\ni\nt\nyorsub\nj\nec\nt\n,\ni\nt\nw\ni\nl\nl\nbecons\nt\nruedby\nl\ni\nm\ni\nt\ni\nngandreduc\ni\nng\ni\nt\n,\nsoas\nt\nobeenforceab\nl\ne\nt\no\nt\nheex\nt\nen\nt\ncompa\nt\ni\nb\nl\new\ni\nt\nh\nt\nheapp\nl\ni\ncab\nl\ne\nl\nawas\ni\nt\nw\ni\nl\nl\nt\nhenappear\n.\nemp\nl\noymen\nt\n.\nIacknow\nl\nedge\nt\nha\nt\n,\nsub\nj\nec\nt\nt\no\nt\nhe\nt\nermsof\nt\nheEmp\nl\noymen\nt\nAgreemen\nt\nt\nowh\ni\nch\nt\nh\ni\nsAgreemen\nt\ni\nsa\nt\nt\nachedasExh\ni\nb\ni\nt\nA\n,\nmyemp\nl\noymen\nt\nw\ni\nt\nh\nt\nheCompany\ni\nsa\nt\nw\ni\nl\nl\nand\nt\nhereforemaybe\nt\nerm\ni\nna\nt\ned by\nt\nheCompanyormea\nt\nany\nt\ni\nmeandforanyreason\n.\n19\n.\nEn\nt\ni\nreAgreemen\nt\n.\nTh\ni\nsAgreemen\nt\nSurv\ni\nva\nl\nandAss\ni\ngnmen\nt\nby\nt\nhe\nl\n5\n.\ncons\nt\ni\nt\nu\nt\nes\nt\nheen\nt\ni\nreandon\nl\nyagreemen\nt\nbe\nt\nwe en\nt\nheCompanyandmerespec\nt\ni\nng\nt\nhesub\nj\nec\nt\nma\nt\nt\nerhereof\n,\nandsupersedesa\nl\nl\npr\ni\noragreemen\nt\nsandCompany\n.\nIunders\nt\nand\nt\nha\nt\nmyob\nl\ni\nga\nt\ni\nonsunder\nt\nh\ni\nsAgreemen\nt\nw\ni\nl\nl\ncon\nt\ni\nnue\ni\nnaccordancew\ni\nt\nh\ni\nt\nsexpress\nt\nerm s reg ard\nl\nessofanychanges\ni\nnmy\nt\ni\nt\nl\ne\n,\npos\ni\nt\ni\non\n,\ndu\nt\ni\nes\n,\nsa\nl\nary\n,\ncompensa\nt\ni\nonorbenef\ni\nt\nsoro\nt\nher\nt\nermsandcond\ni\nt\ni\nonsofemp\nl\noymen\nt\n.\nIfur\nt\nherunders\nt\nand\nt\nha\nt\nmyob\nl\ni\nga\nt\ni\nonsunder\nt\nh\ni\nsAgreemen\nt\nw\ni\nl\nl\ncon\nt\ni\nnuefo\nl\nl\now\ni\nng\nt\nhe\nt\nerm\ni\nna\nt\ni\nonofmyemp\nl\noymen\nt\nreg ard\nl\nessof\nt\nhemannerofsuch\nt\nerm\ni\nna\nt\ni\nonandw\ni\nl\nl\nbeb\ni\nnd\ni\nnguponmyhe\ni\nrs\n,\nexecu\nt\norsandadm\ni\nn\ni\ns\nt\nra\nt\nors\n.\nTheCompanyw\ni\nl\nl\nunders\nt\nand\ni\nngs\n,\nora\nl\norwr\ni\nt\nt\nen\n,\nbe\nt\nweenusconcern\ni\nngsuchsub\nj\nec\nt\nma\nt\nt\ner\n.\nNomod\ni\nf\ni\nca\nt\ni\non\n,\namendmen\nt\n,\nwa\ni\nveror\nt\nerm\ni\nna\nt\ni\nonof\nt\nh\ni\nsAgreemen\nt\norofanyprov\ni\ns\ni\nonhereofw\ni\nl\nl\nbeb\ni\nnd\ni\nng un\nl\ness mad e\ni\nnwr\ni\nt\ni\nngands\ni\ngnedbyanau\nt\nhor\ni\nzedoff\ni\ncerof\nt\nheCompany\n.\nFa\ni\nl\nure of\nt\nheCompany\nt\no\ni\nns\ni\ns\nt\nupons\nt\nr\ni\nc\nt\ncomp\nl\ni\nancew\ni\nt\nhanyof\nt\nhe\nt\ne rms\n,\ncovenan\nt\nsorcond\ni\nt\ni\nonshereofw\ni\nl\nl\nno\nt\nbedeemedawa\ni\nverofsuch\nt\ne rms\n,\ncovenan\nt\nsorcond\ni\nt\ni\nons\n.\n20\n.\nIn\nt\ne rpre\nt\na\nt\ni\non\n.\nTh\ni\nsAgreemen\nt\nw\ni\nl\nl\nbedeemed\nt\nobemadeanden\nt\nere d\ni\nn\nt\no\ni\nn\nt\nheCommonwea\nl\nt\nhofMassachuse\nt\nt\ns\n,\nandw\ni\nl\nl\ni\nna\nl\nl\nrespec\nt\nsbe\ni\nn\nt\nerp re\nt\ned\n,\nenforcedandgoverned under\nt\nhe\nl\nawsof\nt\nheCommonwea\nl\nt\nhofMassachuse\nt\nt\ns\n.\nIherebyagree\nt\noconsen\nt\nt\nopersona\nl\nj\nur\ni\nsd\ni\nc\nt\ni\nonof\nt\nhes\nt\na\nt\neandfedera\nl\ncour\nt\nss\ni\nt\nua\nt\nedw\ni\nt\nh\ni\nnSuffo\nl\nkCoun\nt\ny\n,\nMassachuse\nt\nt\nsforpurposesofenforc\ni\nng\nt\nh\ni\nsAgreemen\nt\n,\nandwa\ni\nveanyob\nj\nec\nt\ni\non\nt\nha\nt\nIm\ni\ngh\nt\nha ve\nt\nopersona\nl\nj\nur\ni\nsd\ni\nc\nt\ni\nonorvenue\ni\nn\nt\nhosecour\nt\ns\n.\nAsused\ni\nn\nt\nh\ni\nsAgreemen\nt\n,\n'\n'\ni\nnc\nl\nud\ni\nng"means"\ni\nnc\nl\nud\ni\nngbu\nt\nno\nt\nl\ni\nm\ni\nt\ned\nt\no"\n.\nhave\nt\nher\ni\ngh\nt\nt\noass\ni\ngnAff\ni\nl\ni\na\nt\nes\n,\nsuccessorsandconsen\nt\nt\nobeboundbyAgreemen\nt\nfor\nt\nhebenef\ni\nt\nt\nh\ni\nsAgreemen\nt\nt\no\ni\nt\nsass\ni\ngns\n.\nIexpress\nl\ny\nt\nheprov\ni\ns\ni\nonsof\nt\nh\ni\nsof\nt\nheCompanyoranyparen\nt\n,\nsubs\ni\nd\ni\naryorAff\ni\nl\ni\na\nt\ne\nt\nowhoseemp\nl\noyImaybe\nt\nransferredAgreemen\nt\nbe\nt\nran sfe r\n.\nw\ni\nt\nhou\nt\nt\nhenecess\ni\nt\ny\nt\nha\nt\nre-execu\nt\neda\nt\nt\nhe\nt\ni\nmeof\nt\nh\ni\nssuch16\n.\nEx\ni\nt\nIn\nt\nerv\ni\new\n.\nIfandwhenIdepar\nt\nfromrequ\ni\nred\nt\noa\nt\nt\nendanex\ni\nt\nt\nheCompany\n,\nImaybe\ni\nn\nt\nerv\ni\newands\ni\ngnan"Emp\nl\noyeeEx\ni\nt\nAcknow\nl\nedgemen\nt\n"\nt\no rea\nt\nl\ni\nrmmyaccep\nt\nanceandacknow\nl\nedgemen\nt\nof\nt\nheob\nl\ni\nga\nt\ni\nonsse\nt\nfor\nt\nh\ni\nn\nt\nh\ni\nsAgreemen\nt\n.\nFor\nt\nwe\nl\nve(12)mon\nt\nhsfo\nl\nl\now\ni\nng\nt\nerm\ni\nna\nt\ni\nonofmyemp\nl\noymen\nt\n,\nIw\ni\nl\nl\nno\nt\ni\nfy\nt\nheCompanyofanychange\ni\nnmyaddressandofeach\n:\n,\nubsequen\nt\nemp\nl\noymen\nt\norbus\ni\nnessac\nt\ni\nVI\nt\ny\n,\ni\nnc\nl\nud\ni\nng\nt\nhenameandaddressofmyemp\nl\noyeroro\nt\nherpos\nt\n-Companyemp\nl\noymen\nt\np\nl\nansand\nt\nhe na\nt\nureofmyac\nt\ni\nv\ni\nt\ni\nes\n.\nJ7\n.\nD\ni\nsc\nl\nosuredur\ni\nng\nt\nheRes\nt\nr\ni\nc\nt\nedPer\ni\nod\n.\nDur\ni\nng\nt\nheRes\nt\nr\ni\nc\nt\nedPer\ni\nod\n,\nIw\ni\nl\nl\n(\ni\n)prov\ni\ndeacopy4\nIUNDERSTANDTHATTHISAGREEMENTAFFECTSIMPORTANTRIGHTS\n.\nBYUSINGBELOWICERTIFYTHATHIHAVEREASTHISAGREEMENTCAREFULLYANDSATISFIEDTHATIUNDERSTANDITCOMPLETELY\n.\nINWITNESSWHEREOF\n,\nt\nheunders\ni\ngnedhasexecu\nt\ned\nt\nh\ni\nsagreemen\nt\nas sca\nl\ned\ni\nns\nt\nrumen\nt\nasof\nt\nheda\nt\nese\nt\nfor\nt\nhbe\nl\now\n.\nS\ni\ngnedNageshMahan\nt\nrappa\nAPPENDIXATo\n:\nSc ho\nl\narRock\n,\nLLCFrom\n:\nNageshMahan\nt\nhappaDa\nt\ne\n:\nOc\nt\nober_\n,\n2012SUBJECT\n:\nPr\ni\norInven\nt\ni\nonsThefo\nl\nl\now\ni\nng\ni\nsacomp\nl\ne\nt\ne\nl\ni\ns\nt\nofa\nl\nl\ni\nnven\nt\ni\nonsor\ni\nmprovemen\nt\nsre\nl\nev an\nt\nt\no\nt\nhesub\nj\nec\nt\nma\nt\nt\nerofmyemp\nl\noymen\nt\nby\nt\nheCompany\nt\nha\nt\nhavebeenmadeorconce\ni\nvedorf\ni\nrs\nt\nred uc ed\nt\noprac\nt\ni\ncebymea\nl\noneor\nj\no\ni\nn\nt\nl\nyw\ni\nt\nho\nt\nherspr\ni\nor\nt\nomyengagemen\nt\nby\nt\nheCompany\n:\nXNo\ni\nnven\nt\ni\nonsor\ni\nmprovemen\nt\nsSeebe\nl\now\n:\nAdd\ni\nt\ni\nona\nl\nsh ee\nt\nsa\nt\nt\nachedThefo\nl\nl\now\ni\nng\ni\nsa\nl\ni\ns\nt\nofa\nl\nl\nUn\ni\nt\nedS\nt\na\nt\nespa\nt\nen\nt\nsandpa\nt\nen\nt\napp\nl\ni\nca\nt\ni\nons\ni\nnwh\ni\nchIhavebeennamedasan\ni\nnv en\nt\nor(no\nt\ne\nt\nha\nt\nfore\ni\ngncoun\nt\nerp ar\nt\nsweref\ni\nl\ned\ni\nna\nl\nl\nca ses\n,\nbu\nt\ns\nt\na\nt\nus\ni\nsno\nt\nknown\nt\nomeasof\nt\noday\n'\nsda\nt\ne)\n:\nNoneXSeebe\nl\now\n:\nIssu ed Pa\nt\nen\nt\ns7\n,\n144\n,\n9977\n,\n138\n,\n4926\n,\n884\n,\n7706\n,\n767\n,\n8886\n,\n750\n,\n1966\n,\n087\n,\n3235\n,\n681\n,\n568Ver\nt\neb ra\nt\neembryon\ni\ncpa\nt\nt\nern\ni\nng-\ni\nnduc\ni\nngpro\nt\ne\ni\nns\n,\ncompos\ni\nt\ni\nonsandusesre\nl\na\nt\ned\nt\nher\nt\noMe\nt\nhodof\nt\nrea\nt\ni\nng dopam\ni\nn erg\ni\ncandGABA-nerg\ni\ncd\ni\nsordersMe\nt\nhodsandcompos\ni\nt\ni\nonsfor\nt\nrea\nt\ni\nng orpreven\nt\ni\nngper\ni\nphera\nl\nneuropa\nt\nh\ni\nesNeuropro\nt\nec\nt\ni\nveme\nt\nhodsandreagen\nt\nsMe\nt\nhodsof\nt\nrea\nt\ni\nngd\ni\nsordersof\nt\nheeyeUseofneuregu\nl\ni\nnsasmodu\nl\na\nt\norsofce\nl\nl\nu\nl\narcommun\ni\nca\nt\ni\nonDev\ni\nceforde\nl\ni\nveryofsubs\nt\nancesandme\nt\nhodsofuse\nt\nhereofPa\nt\nen\nt\nApp\nl\ni\nca\nt\ni\nons20100144616200802210372007025436420070048286200402357392004022009620030162698Neuropro\nt\nec\nt\ni\nveme\nt\nhodsandreagen\nt\nsMe\nt\nhodsandcompos\ni\nt\ni\nonsfor\nt\nrea\nt\ni\nngd\ni\ns ord ers\ni\nnvo\nl\nv\ni\nngexc\ni\nt\no\nt\nox\ni\nc\ni\nt\nyMe\nt\nhodsandcompos\ni\nt\ni\nonsfor\nt\nrea\nt\ni\nngd\ni\nso rd ers\ni\nnvo\nl\nv\ni\nngexc\ni\nt\no\nt\nox\ni\nc\ni\nt\nyMe\nt\nhodof\nt\nrea\nt\ni\nngdopam\ni\nn erg\ni\ncandGABA-nerg\ni\ncd\ni\nsordersNeuropro\nt\nec\nt\ni\nveme\nt\nhodsandreagen\nt\nsMe\nt\nhodandcompos\ni\nt\ni\nons\nt\nor\nt\nrea\nt\ni\nngdopam\ni\nn erg\ni\ncandgabanerg\ni\ncd\ni\nsordersMETHODSANDCOMPOSITIONSFORTREATINGDOPAMINERGICANDGABA-NERGICDISORDERS20030I19729METHODOFTREATING\nDOPAMINERGICANDGABA-NERGJCDISORDERS\n20030083242METHODSANDCOMPOSITIONSFORTREATINGORPREVENTINGPERIPHERALNEUROPATHIESNEUREGULINSASMODULATORSOFCELLULARCOMMUNICATIONVERTEBRATEEMBRYONICPATTERNING-INDUCINGPROTEINS\n,\n2003004046520020045206COMPOSITIONSANDUSESRELATEDTHERTO	EX-10.10 11 a2235501zex-10_10.htm EX-10.10\nExhibit 10.10	EX-10.10 11 a2235501zex-10_10.htm EX-10.10\nExhibit 10.10	EX-10.10 11 a2235501zex-10 _10.htm EX-10 .10\nExhibit 10.10\nEXHIBITANon-Compe\nt\ni\nt\ni\non\n,\nNon-So\nl\ni\nc\ni\nt\na\nt\ni\non\n,\nConf\ni\nden\nt\ni\na\nl\ni\nt\nyandAss\ni\ngnmen\nt\nAgreemen\nt\nIncons\ni\nd era\nt\ni\nonandasacond\ni\nt\ni\nonofmyemp\nl\noymen\nt\nbyScho\nl\narRockLLC\n,\naDe\nl\naware\nl\ni\nm\ni\nt\ned\nl\ni\nab\ni\nl\ni\nt\nycompany(a\nl\nongw\ni\nt\nh\ni\nt\ns Aff\ni\nl\ni\na\nt\nes\nt\nhe"Company")\n,\nIherebyagreeasfo\nl\nl\nows\n:\nI\n.\nPropr\ni\ne\nt\naryInforma\nt\ni\non\n.\nIagree\nt\nha\nt\na\nl\nl\nCompanyandusemybes\nt\neffo r\nt\ns\nt\nopreven\nt\nt\nheunau\nt\nhor\ni\nzedd\ni\nsc\nl\nosureofa\nl\nl\nPropr\ni\ne\nt\nary\ni\nnforma\nt\ni\non\n,\nwhe\nt\nherorno\nt\ni\nnwr\ni\nt\ni\nng\n,\nwhe\nt\nherorno\nt\nd\ni\nsc\nl\nosedbeforeoraf\nt\nerIwasf\ni\nrs\nt\nemp\nl\noyedby\nt\nheCompany\n,\nconcern\ni\nng\nt\nheCompany\n'\nsbus\ni\nn ess\n,\nt\nechno\nl\nogy\n,\nbus\ni\nnessre\nl\na\nt\ni\non sh\ni\npsorf\ni\nna nc\ni\na\nl\naff a\ni\nrs\nt\nha\nt\nt\nheCompanyhasno\nt\nre\nl\neased\nt\no\nt\nhegenera\nl\npub\nl\ni\nc (co\nl\nl\nec\nt\ni\nve\nl\ny\n,\n"Propr\ni\ne\nt\naryInforma\nt\ni\non")\n,\nanda\nl\nl\nt\nang\ni\nb\nl\neembod\ni\nmen\nt\ns\nt\nhereof\n:\nareandw\ni\nl\nl\nbe\nt\nheexc\nl\nus\ni\nveproper\nt\nyof\nt\nheCompany\n.\nBywayof\ni\nl\nl\nus\nt\nra\nt\ni\non\n,\nPropr\ni\ne\nt\naryInforma\nt\ni\nonmay\ni\nnc\nl\nude\ni\nnforma\nt\ni\nonorma\nt\ner\ni\na\nl\nt\nha\nt\nhasno\nt\nbeenmadegenera\nl\nl\nyava\ni\nl\nab\nl\ne\nt\no\nt\nhepub\nl\ni\nc\n,\nsuchas\n:\n(a)corpora\nt\ne\ni\nnforma\nt\ni\non\n,\ni\nnc\nl\nud\ni\nngp\nl\nans\n,\ns\nt\nra\nt\neg\ni\nes\n,\nIn form a\nt\ni\non\n.\nIw\ni\nl\nl\nde\nl\ni\nver\nt\no\nt\nheCompanya\nl\nl\ncop\ni\nesando\nt\nher\nt\nang\ni\nb\nl\neembod\ni\nmen\nt\nsofPropr\ni\ne\nt\nary Info rm a\nt\ni\non\ni\nnmypossess\ni\nonorcon\nt\nro\nl\nupon\nt\nheear\nl\ni\nerofareques\nt\nby\nt\nheCompanyor\nt\nerm\ni\nna\nt\ni\nonofmyemp\nl\noymen\nt\n.\n3\n.\nR\ni\ngh\nt\nsofO\nt\nhe rs\n.\nIunders\nt\nand\nt\nha\nt\nt\nheCompany\ni\nsnowandmayhereaf\nt\nerbesub\nj\nec\nt\nt\nonon-d\ni\nsc\nl\nosureorconf\ni\nden\nt\ni\na\nl\ni\nt\nyagreemen\nt\nsw\ni\nt\nh\nt\nh\ni\nrdpersonswh\ni\nchrequ\ni\nre\nt\nheCompany\nt\nopro\nt\nec\nt\no r refra\ni\nnfromuseofpropr\ni\ne\nt\nary\ni\nnforma\nt\ni\non\n.\nIagree\nt\nobeboundby\nt\nhe\nt\nermsofsuchagreemen\nt\ns\ni\nn\nt\nheeven\nt\nIhaveaccess\nt\nosuchpropr\ni\ne\nt\nary\ni\nnforma\nt\ni\non\n.\nme\nt\nhods\n,\npo\nl\ni\nc\ni\nes\n,\nres o\nl\nu\nt\ni\nons\n,\nno\nt\nes\n,\nema\ni\nl\ncorrespondence\n,\nnego\nt\ni\na\nt\ni\nonsor\nl\ni\nt\ni\nga\nt\ni\non\n;\n(b)marke\nt\ni\nng\ni\nnforma\nt\ni\non\n,\nme\nt\nhods\n,\ncus\nt\nomer\ni\nden\nt\ni\nt\ni\nesabou\nt\ncus\nt\nom ers\n,\nprospec\nt\ni\nnc\nl\nud\ni\nngs\nt\nra\nt\neg\ni\nes\n,\noro\nt\nher\ni\nnforma\nt\ni\non\ni\nden\nt\ni\nt\ni\nesoro\nt\nher4\n.\nCo mm\ni\nt\nmen\nt\nt\noCompany\n;\nAvo\ni\ndanceofConf\nl\ni\nc\nt\nof\nIn\nt\nere s\nt\n.\nWh\ni\nl\neanemp\nl\noyeeof\nt\nheCompany\n,\nIw\ni\nl\nl\ndevo\nt\nemyfu\nl\nl\n-\nt\ni\nmeeffor\nt\ns\nt\no\nt\nheCompany\n'\nsbus\ni\nnessandIw\ni\nl\nl\nno\nt\nengage\ni\nnanyo\nt\nherbus\ni\nnessac\nt\ni\nv\ni\nt\ny\nt\nha\nt\nconf\nl\ni\nc\nt\nsw\ni\nt\nhmydu\nt\ni\nes\nt\no\nt\nheCompany\n.\nIw\ni\nl\nl\nadv\ni\nse\nt\nhepres\ni\nden\nt\nof\nt\nheCompanyorh\ni\nsorhernom\ni\nneea\nt\nsu ch\nt\ni\nmeasanyac\nt\ni\nv\ni\nt\nyofe\ni\nt\nher\nt\nheCompanyorano\nt\nherbus\ni\nnesspresen\nt\nsmew\ni\nt\nhaconf\nl\ni\nc\nt\nof\ni\nn\nt\ne res\nt\nor\nt\nheappearanceofaconf\nl\ni\nc\nt\nof\ni\nn\nt\ne res\nt\nasanemp\nl\noyeeof\nt\nheCompany\n.\nIw\ni\nl\nl\nt\nakewha\nt\neverac\nt\ni\non\ni\nsreques\nt\nedofmeby\nt\nheCompany\nt\no reso\nl\nveanyconf\nl\ni\nc\nt\norappearanceofconf\nl\ni\nc\nt\nwh\ni\nch\ni\nt\nf\ni\nnds\nt\noex\ni\ns\nt\n.\ni\nnforma\nt\ni\nonabou\nt\nprospec\nt\ns\n,\normarke\nt\nana\nl\nysesorpro\nj\nec\nt\ni\nons\n:\n(c)f7nanc\ni\na\nl\ni\nnforma\nt\ni\non\n,\ni\nnc\nl\nud\ni\nngcos\nt\nandperformanceda\nt\na\n,\ndeb\nt\narrangemen\nt\ns\n,\nequ\ni\nt\nys\nt\nruc\nt\nure\n,\ni\nnves\nt\norsandho\nl\nd\ni\nngs\n,\npurchas\ni\nngandsa\nl\nesda\nt\naandpr\ni\nce\nl\ni\ns\nt\ns\n:\nand\nt\nechno\nl\nog\ni\nca\nl\ni\nnf\ni\nxma\nt\ni\non\n,\nspec\ni\nf\ni\nca\nt\ni\nons\n,\nmanua\nl\ns\n,\nfo rms\n,\n(d)opera\nt\ni\nona\nl\nand\ni\nnc\nl\nud\ni\nngp\nl\nans\n,\nt\nemp\nl\na\nt\nes\n,\nsof\nt\nw are\n,\ndes\ni\ngns\n.\nme\nt\nhods\n,\nprocedures\n,\nfo rmu\nl\nas\n,\nd\ni\nscover\ni\nes\n,\ni\nnven\nt\ni\nons\n,\ni\nmprovemen\nt\ns\n,\nb\ni\no\nl\nog\ni\nca\nl\norchem\ni\nca\nl\nma\nt\ner\ni\na\nl\ns\n,\nconcep\nt\nsand\ni\ndeas\n;\nand(e)personne\nl\ni\nnforma\nt\ni\non\n,\ni\nnc\nl\nud\ni\nngpersonne\nl\nl\ni\ns\nt\ns\n,\nrep or\nt\ni\nngororgan\ni\nza\nt\ni\nona\nl\ns\nt\nruc\nt\nure\n,\nre sum es\n,\npersonne\nl\nda\nt\na\n,\ncompensa\nt\ni\nons\nt\nruc\nt\nure\n,\nperformanceeva\nl\nua\nt\ni\nonsand\nt\nerm\ni\nna\nt\ni\nonarrangemen\nt\nsordocumen\nt\ns\n.\nPropr\ni\ne\nt\nary5\n.\nDev e\nl\nopmen\nt\ns\n.\nIherebyass\ni\ngnand\nt\nransferInforma\nt\ni\non(I)\ni\nnforma\nt\ni\nonCompanyfrom\ni\nnc\nl\nud es\n,\nw\ni\nt\nhou\nt\nl\ni\nm\ni\nt\na\nt\ni\non\n,\nand\n,\nt\no\nt\nheex\nt\nen\nt\nanysuchass\ni\ngnmen\nt\ncanno\nt\nbemadea\nt\npresen\nt\n,\nw\ni\nl\nl\nass\ni\ngnand\nt\nra ns fer\n,\nt\no\nt\nheCompanyand\ni\nt\nssuccessorsandass\ni\ngns\n,\na\nl\nl\nmyr\ni\ngh\nt\n,\nt\ni\nt\nl\neand\ni\nn\nt\ne res\nt\ni\nnand\nt\noa\nl\nl\nDeve\nl\nopmen\nt\ns\nt\nha\nt\n:\n(a)are crea\nt\ned\n,\nde ve\nl\nop ed\n,\nma de\n,\nconce\ni\nvedorreduced\nt\noprac\nt\ni\ncebyme(a\nl\noneor\nj\no\ni\nn\nt\nl\nyw\ni\nt\nhrece\ni\nved\ni\nnconf\ni\ndenceby\nt\nhe\ni\nt\nscus\nt\nomersorsupp\nl\ni\nersoro\nt\nher\nt\nh\ni\nrdpar\nt\ni\nes\n,\nand(2)a\nl\nl\nb\ni\no\nl\nog\ni\nca\nl\norchem\ni\nca\nl\nma\nt\ner\ni\na\nl\nsando\nt\nher\nt\nang\ni\nb\nl\neembod\ni\nmen\nt\nsof\nt\nhe\nPropr\ni\ne\nt\nary Info rm a\nt\ni\non\n.\no\nt\nhers)orundermyd\ni\nrec\nt\ni\nonRecogn\ni\nt\ni\nonofCompany\n'\nsR\ni\ngh\nt\ns\n.\nIw\ni\nl\nl\n(co\nl\nl\nec\nt\ni\nve\nl\ny\n,\n"conce\ni\nved")dur\ni\nng\nt\nheper\ni\nodofmyemp\nl\noymen\nt\nands\ni\nx (6)mon\nt\nhs\nt\nhereaf\nt\nerand\nt\nha\nt\nre\nl\na\nt\ne\nt\no\nt\nhebus\ni\nnessof\nt\nheCompanyor\nt\noproduc\nt\ns\n,\nme\nt\nhodsorserv\ni\ncesbe\ni\nngresearched\n.\nde ve\nl\nop ed\n,\nman u fac\nt\nuredorso\nl\ndby\nt\nheCompany\n;\nor(b)resu\nl\nt\nfro m\nt\na sks ass\ni\ngned\nt\nomeby\nt\nheCompany\n;\nor(c)resu\nl\nt\nfro m\nt\nheuseofprem\ni\nses\n,\nPropr\ni\ne\nt\nary In form a\nt\ni\nonorpersona\nl\nproper\nt\ny(whe\nt\nher\nt\nang\ni\nb\nl\neor7no\nt\n,\na\nt\nany\nt\ni\nme\n,\nw\ni\nt\nhou\nt\nt\nheCompany\n'\nspr\ni\norwr\ni\nt\nt\nenperm\ni\nss\ni\non\n,\ne\ni\nt\nherdur\ni\nngoraf\nt\nermyemp\nl\noymen\nt\n,\nd\ni\nsc\nl\noseor\nt\nransferanyPropr\ni\ne\nt\naryInforma\nt\ni\non\nt\noanyoneou\nt\ns\ni\ndeof\nt\nheCompany\n,\noruscorperm\ni\nt\nt\nobeusedanyPropr\ni\ne\nt\nary Inf orm a\nt\ni\nonforanypurposeo\nt\nher\nt\nhan\nt\nheperformanceofmydu\nt\ni\nesasanemp\nl\noyeeof\nt\nheCompany\n.\nIw\ni\nl\nl\ncoopera\nt\new\ni\nt\nh\nt\nhe\nNO N-CO MI\n'\nITITION\n,\nNON-SOLJCIIATION\n,\nCONFIDENTIALITYANDASSIGNMENTAGREEMENT\ni\nn\nt\nang\ni\nb\nl\ne)owned\n,\nl\ni\ncensedor\nl\neasedby\nt\nheIunders\nt\nand\nt\nha\nt\nt\no\nt\nheex\nt\nen\nt\nt\nh\ni\nsAgreemen\nt\ni\nsrequ\ni\nred\nt\nobecons\nt\nrue d\ni\nnaccordancew\ni\nt\nh\nt\nhe\nl\nawsofanys\nt\na\nt\newh\ni\nchprec\nl\nudesarequ\ni\nrem en\nt\ni\nnanemp\nl\noyeeagreemen\nt\nt\no ass\ni\ngn cer\nt\na\ni\nnc\nl\nassesof\ni\nnven\nt\ni\nonsmadebyanemp\nl\noyee\n,\nt\nh\ni\nsSec\nt\ni\non5w\ni\nl\nl\nbe\ni\nn\nt\nerp re\nt\nedno\nt\nt\noapp\nl\ny\nt\noany\ni\nnven\nt\ni\nonwh\ni\nchacour\nt\nru\nl\nesand\n/\nor\nt\nheCompanyagreesfa\nl\nl\nsw\ni\nt\nh\ni\nnsuchc\nl\nass es\n.\nCompany(co\nl\nl\nec\nt\ni\nve\nl\ny\n,\n'\n'\nCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\ns")\n,\nanda\nl\nl\npa\nt\nen\nt\nr\ni\ngh\nt\ns\n,\nt\nrademarks\n,\ncopyr\ni\ngh\nt\nsando\nt\nher\ni\nn\nt\ne\nl\nl\nec\nt\nua\nl\nproper\nt\nyr\ni\ngh\nt\ns\ni\nna\nl\nl\nco un\nt\nr\ni\nesand\nt\nerr\ni\nt\nor\ni\neswor\nl\ndw\ni\ndec\nl\na\ni\nm\ni\nng\n,\ncover\ni\nngoro\nt\nh erw\ni\nsear\ni\ns\ni\nngfromorper\nt\na\ni\nn\ni\nng\nt\noCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\ns (co\nl\nl\nec\nt\ni\nve\nl\ny\n,\n"In\nt\ne\nl\nl\nec\nt\nua\nl\nProper\nt\nyR\ni\ngh\nt\ns")\n.\nIfur\nt\nheragree\nt\nha\nt\n"Company-Re\nl\na\nt\nedDeve\nl\nopmen\nt\ns\n'\n'\ni\nnc\nl\nude\n,\nw\ni\nt\nhou\nt\nl\ni\nm\ni\nt\na\nt\ni\non\n,\na\nl\nl\nDe ve\nl\nopmen\nt\ns\nt\nha\nt\n(\ni\n)wereconce\ni\nvedbymebeforemyemp\nl\noymen\nt\n,\n(\ni\ni\n)re\nl\na\nt\ne\nt\no\nt\nhebus\ni\nnessof\nt\nheCompanyor\nt\noproduc\nt\ns\n,\nme\nt\nhodsorserv\ni\nces be\ni\nngresearched\n,\ndeve\nl\noped\n,\nmanufac\nt\nuredorso\nl\ndby\nt\nheCompany\n,\nand(\ni\ni\ni\n)wereno\nt\nsub\nj\nec\nt\nt\noanob\nl\ni\nga\nt\ni\non\nt\noass\ni\ngn\nt\noano\nt\nheren\nt\ni\nt\ny\n.\nwhenconce\ni\nved\n.\nIw\ni\nl\nl\nmakefu\nl\nl\nandpromp\nt\nd\ni\nsc\nl\nos ure\nt\no\nt\nheCompanyofa\nl\nl\nCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\ns\n,\nas we\nl\nl\nasa\nl\nl\no\nt\nherDeve\nl\nopmen\nt\nsconce\ni\nvedbymedur\ni\nng\nt\nheper\ni\nodofmyemp\nl\noymen\nt\nands\ni\nx (6)6\n.\nDocumen\nt\nsandO\nt\nherMa\nt\ner\ni\na\nl\ns\n.\nIw\ni\nl\nl\nkeepandma\ni\nn\nt\na\ni\nnadequa\nt\neandcurren\nt\nrecordsofa\nl\nl\nPropr\ni\ne\nt\naryInforma\nt\ni\nonandCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\nsconce\ni\nvedbyme\n,\nwh\ni\nchrecordsw\ni\nl\nl\nbeava\ni\nl\nab\nl\ne\nt\noandrema\ni\nn\nt\nheso\nl\neproper\nt\nyof\nt\nheCompanya\nt\na\nl\nl\nt\ni\nmes\n.\nmemoranda\n,\nrepor\nt\ns\n,\nA\nl\nl\nf\ni\nl\nes\n,\nl\ne\nt\nt\ners\n,\nno\nt\nes\n,\nrecords\n,\nda\nt\na\n,\nske\nt\nch es\n,\nd raw\ni\nngs\n,\nno\nt\nebooks\n,\nl\nayou\nt\ns\n,\nchar\nt\ns\n,\nquo\nt\na\nt\ni\nonsandpropos_a\nl\ns\n,\nspec\ni\nf\ni\nca\nt\ni\nonshee\nt\ns\n,\nprogram\nl\ni\ns\nt\ni\nngs\n,\nb\nl\nueprm\nt\ns\n,\nmode\nl\ns\n,\npro\nt\no\nt\nyp es\n,\nma\nt\ner\ni\na\nl\nsoro\nt\nherwr\ni\nt\nt\nen\n,\npho\nt\nograph\ni\ncoro\nt\nher\nt\nang\ni\nb\nl\nema\nt\ner\ni\na\nl\ncon\nt\na\ni\nn\ni\nngorembody\ni\nngPropr\ni\ne\nt\naryInforma\nt\ni\non\n,\nwhe\nt\nhercrea\nt\nedbymeoro\nt\nhe rs\n,\nwh\ni\nchcome\ni\nn\nt\nomycus\nt\nodyorpossess\ni\non\n,\nare\nt\nheexc\nl\nus\ni\nve proper\nt\nyof\nt\nheCompany\nt\nobeusedbymeon\nl\ny\ni\nn\nt\nheperformanceofmydu\nt\ni\nesfor\nt\nheCompany\n.\nIn\nt\nheeven\nt\nof\nt\nhe\nt\nerm\ni\nna\nt\ni\nonofmyemp\nl\noymen\nt\nforanyreason\n,\nIw\ni\nl\nl\nde\nl\ni\nver\nt\no\nt\nheCompanya\nl\nl\nof\nt\nhe fore go\ni\nng\n,\nanda\nl\nl\no\nt\nherma\nt\ner\ni\na\nl\nsofanyna\nt\nureper\nt\na\ni\nn\ni\nng\nt\no\nt\nhePropr\ni\ne\nt\nary In form a\nt\ni\nonof\nt\nheCompanyand\nt\nomywork\n,\nandw\ni\nl\nl\nno\nt\nt\nakeorkeep\ni\nnmypossess\ni\nonanyof\nt\nhe fore go\ni\nngoranycop\ni\nes\n.\nAnyproper\nt\nys\ni\nt\nua\nt\nedon\nt\nheCompany\n'\nsprem\ni\nsesandownedby\nt\nheCompany\n,\ni\nnc\nl\nud\ni\nng\nl\nabora\nt\noryspace\n,\ncompu\nt\ners\n,\nd\ni\nsksando\nt\nhers\nt\noragemed\ni\na\n,\nf\ni\nl\ni\nngcab\ni\nne\nt\nsoro\nt\nherworkareas\n,\ni\nssub\nj\nec\nt\nt\no\ni\nnspec\nt\ni\nonby\nt\nheCompanya\nt\nany\nt\ni\nmew\ni\nt\nhorw\ni\nt\nhou\nt\nno\nt\ni\nce\n.\nmon\nt\nhs\nt\nhereaf\nt\ner\n.\nIacknow\nl\nedge\nt\nha\nt\na\nl\nl\nworkperformedbymeasanemp\nl\noyeeof\nt\nheCompany\ni\nsona"work\nt\norh\ni\nre"bas\ni\ns\n.\nIherebywa\ni\nvea\nl\nl\nc\nl\na\ni\nms\nt\noanymora\nl\nr\ni\ngh\nt\nsoro\nt\nherspec\ni\na\nl\nr\ni\ngh\nt\nswh\ni\nchImayhaveoraccrue\ni\nnanyCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\ns\n.\nd\ni\nscover\ni\nes\n,\n'\n'\nDeve\nl\nopmen\nt\ns"mean\ni\nnv en\nt\ni\nons\n,\ndes\ni\ngns\n,\ndeve\nl\nopmen\nt\ns\n,\nme\nt\nhods\n,\nb\ni\no\nl\nog\ni\nca\nl\nda\nt\nabases\n,\nmod\ni\nf\ni\nca\nt\ni\nons\n,\ni\nmprovemen\nt\ns\n,\nprocesses\n,\norchem\ni\nca\nl\nma\nt\ner\ni\na\nl\ns\n,\na\nl\ngor\ni\nt\nhms\n,\ncompu\nt\nerprograms\n,\nfo rmu\nl\nae\n,\nt\nechn\ni\nques\n,\nt\nradesecre\nt\ns\n,\ngra ph\ni\ncsor\ni\nmages\n,\naud\ni\noorv\ni\nsua\nl\nworks\n,\nando\nt\nherworksofau\nt\nho rsh\ni\np\n.\nToprec\nl\nudeanyposs\ni\nb\nl\neuncer\nt\na\ni\nn\nt\ny\n,\nIhavese\nt\nfor\nt\nhonAppend\ni\nxAa\nt\nt\nachedhere\nt\noacomp\nl\ne\nt\ne\nl\ni\ns\nt\nofmebeforemyCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\nsconce\ni\nvedbyemp\nl\noymen\nt\nt\nha\nt\nareno\nt\nDeve\nl\nopmen\nt\ns("Pr\ni\norInven\nt\ni\nons\n'\n'\n)\n.\nIhavea\nl\nso\nl\ni\ns\nt\nedonAppend\ni\nxAa\nl\nl\npa\nt\nen\nt\nr\ni\ngh\nt\nsofwh\ni\nchIamanEnforcemen\nt\nofIn\nt\ne\nl\nl\nec\nt\nua\nl\nProper\nt\ny7\n.\ni\nnven\nt\nor\n,\no\nt\nher\nt\nhan\nt\nhosecon\nt\na\ni\nnedw\ni\nt\nh\ni\nnR\ni\ngh\nt\ns\n.\nIw\ni\nl\nl\ncoopera\nt\nefu\nl\nl\nyw\ni\nt\nh\nt\nheCompany\n,\nbo\nt\nhdur\ni\nngandaf\nt\nermyemp\nl\noymen\nt\nw\ni\nt\nh\nt\nhe In\nt\ne\nl\nl\nec\nt\nua\nl\nProper\nt\nyR\ni\ngh\nt\ns ("O\nt\nherPa\nt\nen\nt\nR\ni\ngh\nt\ns")\n.\nIfnosuchd\ni\nsc\nl\nosure\ni\nsa\nt\nt\nached\n,\nIrepresen\nt\nt\nha\nt\nt\nherearenoPr\ni\norInven\nt\ni\nonsorO\nt\nherPa\nt\nen\nt\nR\ni\ngh\nt\ns\n.\nIf\n,\ni\nnhecourseofmyemp\nl\noymen\nt\nw\ni\nt\nh\nt\nheCompany\n,\nImcorpora\nt\neaPr\ni\norInven\nt\ni\non\ni\nn\nt\noaCompanyproduc\nt\n,\nprocessorresearchordeve\nl\nopmen\nt\nprogramoro\nt\nherworkdonefor\nt\nheCompany\n,\nIherebygran\nt\nt\no\nt\nheCompanyanonexc\nl\nus\ni\nve\n,\nroy a\nl\nt\ny-\nt\nree\n,\nfu\nl\nl\nvpa\ni\nd-up\n,\ni\nrrev o cab\nl\ne\n,\nperpe\nt\nua\nl\n,\nwor\nl\ndw\ni\nde\nl\ni\ncens(w\ni\nt\nh\nt\nhefu\nl\nl\nr\ni\ngh\nt\nt\nosub\nl\ni\ncense\nt\nhroughmu\nl\nt\ni\np\nl\ne\nt\n1e rs)\nt\nomake\n,\nhavemade\n.\nmod\ni\nfy\n.\nuse\n,\nofferforsa\nl\ne\n.\nCompany\n,\nw\ni\nt\nhrespec\nt\nt\no\nt\nheprocuremen\nt\n,\nma\ni\nn\nt\nenanceandenforcemen\nt\nof In\nt\ne\nl\nl\nec\nt\nua\nl\nProper\nt\nyR\ni\ngh\nt\ns\n,\naswe\nl\nl\nasa\nl\nl\no\nt\nherpa\nt\nen\nt\nr\ni\ngh\nt\ns\n,\nt\nrademarks\n,\ncopyr\ni\ngh\nt\nsando\nt\nher\ni\nn\nt\ne\nl\nl\nec\nt\nua\nl\nproper\nt\nyr\ni\ngh\nt\ns\ni\nna\nl\nl\nco un\nt\nr\ni\nesand\nt\nerr\ni\nt\nor\ni\neswor\nl\ndw\ni\ndeownedbvor\nl\ni\ncensed\nt\no\nt\nheCompany\n.\nIw\ni\nl\nl\ns\ni\ngn\n,\nbo\nt\nhdur\ni\nngandaf\nt\ner\nt\nhe\nt\nermof\nt\nh\ni\nsAgreemen\nt\n,\na\nl\nl\npapers\n,\ni\nnc\nl\nud\ni\nngcopyr\ni\ngh\nt\napp\nl\ni\nca\nt\ni\nons\n,\npa\nt\nen\nt\napp\nl\ni\nca\nt\ni\nons\n,\npr\ni\nor\ni\nt\nyr\ni\ngh\nt\ns\n,\nCompanymaydec\nl\nara\nt\ni\nons\n.\noa\nt\nhs\n,\nass\ni\ngnmen\nt\nsofandpowersofa\nt\nt\norney\n,\nwh\ni\nch\nt\nhe\ni\nmp or\nt\nandse\nl\nl\nsuchPr\ni\norInven\nt\ni\non\n.\ndeemnecessaryordes\ni\nrab\nl\ne\ni\nnorder\nt\no pro\nt\nec\nt\ni\nt\nsr\ni\ngh\nt\nsand\ni\nn\nt\nere s\nt\ns\ni\nnanyCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\norIn\nt\ne\nl\nl\nec\nt\nua\nl\nProper\nt\nyR\ni\ngh\nt\ns\n.\nIf\nt\nheCompany\ni\nsunab\nl\ne\n,\naf\nt\nerreasonab\nl\neeffor\nt\n,\nt\nosecuremys\ni\ngna\nt\nureonanysuchpapers\n,\nIhereby\ni\nrrevocab\nl\nydes\ni\ngna\nt\neandappo\ni\nn\nt\neachoff\ni\ncerof\nt\nheNo\nt\nw\ni\nt\nhs\nt\nand\ni\nng\nt\nheforego\ni\nng\n.\nIw\ni\nl\nl\nno\nt\ni\nncorpora\nt\ne\n,\norperm\ni\nt\nt\nobe\ni\nncorpora\nt\ned\n,\nPr\ni\norInven\nt\ni\nons\ni\nnanyCompany-Re\nl\na\nt\nedDeve\nl\nopmen\nt\nw\ni\nt\nhou\nt\nt\nheCompany\n'\nspr\ni\norwr\ni\nt\nt\nenconsen\nt\n.\n2\nNON-COMPETITION\n,\nNON-SOLICITATION\n,\nCONFIDENTIALITYANDASSIGNMENTAGREEMENTsuchagreemen\nt\nsorregard\ni\nng\nt\nheconf\ni\nden\nt\ni\na\nl\nna\nt\nureofsuchwork\n.\nIagree\nt\nocomp\nl\nyw\ni\nt\nhanysuchob\nl\ni\nga\nt\ni\nonsorres\nt\nr\ni\nc\nt\ni\nonsupon\nt\nhed\ni\nrec\nt\ni\nonof\nt\nheCompany\n.\nInadd\ni\nt\ni\non\nt\no\nt\nher\ni\ngh\nt\nsass\ni\ngnedunderSec\nt\ni\non5\n,\nIa\nl\nso ass\ni\ngn\nt\no\nt\nheCompany(oranyof\ni\nt\nsnom\ni\nnees)a\nl\nl\nr\ni\ngh\nt\nswh\ni\nchIhaveoracqu\ni\nred\ni\nnanyDeve\nl\nopmen\nt\ns\n,\nfu\nl\nl\nt\ni\nt\nl\ne\nt\nowh\ni\nch\ni\nsrequ\ni\nred\nt\nobe\ni\nn\nt\nhe Un\ni\nt\nedS\nt\na\nt\nesunderanycon\nt\nrac\nt\nbe\nt\nwe en\nt\nheCompanyand\nt\nheUn\ni\nt\nedS\nt\na\nt\nesoranyof\ni\nt\nsagenc\ni\nes\n.\nCompanyasmyagen\nt\nanda\nt\nt\norney-\ni\nn -fac\nt\nt\noexecu\nt\neanysuchpapersonmybeha\nl\nf\n.\nand\nt\no\nt\nakeanyanda\nl\nl\nac\nt\ni\nonsas\nt\nheCompanymaydeemnecessaryordes\ni\nrab\nl\ne\ni\nnorder\nt\nopro\nt\nec\nt\ni\nt\nsr\ni\ngh\nt\nsand\ni\nn\nt\nere s\nt\ns\ni\nn\nt\nhesame\n.\n8\n.\nNon-Compe\nt\ni\nt\ni\nonandNon-So\nl\ni\nc\ni\nt\na\nt\ni\non\n.\nIn ord er\nt\no pro\nt\nec\nt\nt\nheCompany\n'\nsPropr\ni\ne\nt\naryInforma\nt\ni\nonandgoodw\ni\nl\nl\n,\ndur\ni\nngmyemp\nl\noymen\nt\nandforaper\ni\nodof\nt\nwe\nl\nve(12)mon\nt\nhsfo\nl\nl\now\ni\nng\nt\nhe\nt\nerm\ni\nna\nt\ni\nonofmyemp\nl\noymen\nt\nforanyreason(\nt\nhe"Res\nt\nr\ni\nc\nt\nedPer\ni\nod")\n,\nIw\ni\nl\nl\nno\nt\nd\ni\nrec\nt\nl\nyor\ni\nnd\ni\nrec\nt\nl\ny\n,\nwhe\nt\nherasowner\n,\npar\nt\nner\n,\nshareho\nl\nder\n,\nd\ni\nrec\nt\nor\n,\nconsu\nl\nt\nan\nt\n,\nagen\nt\n,\nemp\nl\noyee\n,\nco-ven\nt\nureroro\nt\nh erw\ni\nse\n,\nengage\n,\npar\nt\ni\nc\ni\npa\nt\neor\ni\nnves\nt\ni\nnanybus\ni\nnessac\nt\ni\nv\ni\nt\nyanywhere\ni\nn\nt\nhewor\nl\nd\nt\nha\nt\ndeve\nl\nops\n.\nmanufac\nt\nuresormarke\nt\nsproduc\nt\nsorserv\ni\nces\ni\nn\nt\nheCompany\n'\nsF\ni\ne\nl\ndofBus\ni\nness(asdef\ni\nnedbe\nl\now)\n.\nor\nt\nha\nt\ndeve\nl\nopsormanufac\nt\nuresanyproduc\nt\ns\n.\norperformsanyserv\ni\nces\n,\nt\nha\nt\nareo\nt\nh erw\ni\nsecompe\nt\ni\nt\ni\nvew\ni\nt\nh\nt\nheproduc\nt\nsorserv\ni\ncesof\nt\nheCompany\n,\norproduc\nt\nsorserv\ni\nces\nt\nha\nt\nt\nheCompanyhasunderdeve\nl\nopmen\nt\nor\nt\nha\nt\nwe re\nt\nhesub\nj\nec\nt\nofac\nt\ni\nvep\nl\nann\ni\nngdur\ni\nng\nt\nhe\nl\nas\nt\nt\nwe\nl\nve(12)mon\nt\nhsofmyemp\nl\noymen\nt\n;\npro v\ni\nded\nt\nha\nt\nt\nh\ni\nsw\ni\nl\nl\nno\nt\np roh\ni\nb\ni\nt\nanyposs\ni\nb\nl\ne\ni\nnves\nt\nmen\nt\ni\nnpub\nl\ni\nc\nl\ny\nt\nradeds\nt\nockofacompanyrepresen\nt\ni\nng\nl\ness\nt\nhanonepercen\nt\nof\nt\nhes\nt\nockofsuchcompany\n.\nIn\nadd\ni\nt\ni\non\n,\ndur\ni\nng\nt\nheRes\nt\nr\ni\nc\nt\nedPer\ni\nod\n,\nIw\ni\nl\nl\nno\nt\n,\nd\ni\nrec\nt\nl\nyor\ni\nnd\ni\nrec\nt\nl\ny\n,\ni\nnanymanner\n,\no\nt\nher\nt\nhanfor\nt\nhebenef\ni\nt\nof\nt\nheCompany\n,\n(a)ca\nl\nl\nupon\n,\nso\nl\ni\nc\ni\nt\n,\nd\ni\nver\nt\nor\nt\nakeawayanyof\nt\nhecus\nt\nomers\n,\nbus\ni\nnessorprospec\nt\ni\nvecus\nt\nomersof\nt\nheCompanyoranyof\ni\nt\nssupp\nl\ni\ners\n,\nand\n/\nor(b)so\nl\ni\nc\ni\nt\n,\nen\nt\ni\nceora\nt\nt\nemp\nt\nt\nopersuadeanyo\nt\nheremp\nl\noyeeorconsu\nl\nt\nan\nt\nof\nt\nheCompany\nt\no\nl\neave\nt\nhe serv\ni\ncesof\nt\nheCompanyforanyreason\n.\nIacknow\nl\nedgeandagree\nt\nha\nt\ni\nfIv\ni\no\nl\na\nt\neanyof\nt\nheprov\ni\ns\ni\nonsof\nt\nh\ni\nsSec\nt\ni\non8\n,\nt\nherunn\ni\nngof\nt\nhe Res\nt\nr\ni\nc\nt\nedPer\ni\nodw\ni\nl\nl\nbe ex\nt\nendedby\nt\nhe\nt\ni\nmedur\ni\nng wh\ni\nchIengage\ni\nnsuchv\ni\no\nl\na\nt\ni\non (s)\n.\nForpurposesof\nt\nh\ni\nsSec\nt\ni\non\n,\nt\nheCompany\n'\nsF\ni\ne\nl\ndofBus\ni\nn ess sha\nl\nl\nmeanresearch\n.\nd\ni\nscovery\n,\ndes\ni\ngn\n,\nmanufac\nt\nure\n,\nI0\n.\nPr\ni\norAgreemen\nt\ns\n.\nIherebyrepresen\nt\nt\nha\nt\n,\nexcep\nt\nasIhavefu\nl\nl\nyd\ni\nsc\nl\nosedprev\ni\nous\nl\ny\ni\nnwr\ni\nt\ni\nng\nt\no\nt\nheCompany\n,\nIamno\nt\nboundby\nt\nhe\nt\nermsofanyagreemen\nt\nw\ni\nt\nhanyprev\ni\nousemp\nl\noyeroro\nt\nherpar\nt\ny\nt\norefra\ni\nn from us\ni\nngord\ni\nsc\nl\nos\ni\nngany\nt\nradesecre\nt\norconf\ni\nden\nt\ni\na\nl\norpropr\ni\ne\nt\nary\ni\nnforma\nt\ni\non\ni\nn\nt\nhecourseofmyemp\nl\noymen\nt\nw\ni\nt\nh\nt\nheCompanyor\nt\nore\nt\nra\ni\nnfromcompe\nt\ni\nng\n,\nd\ni\nrec\nt\nl\nyor\ni\nnd\ni\nrec\nt\nl\ny\n,\nw\ni\nt\nh\nt\nhebus\ni\nnessofsuchprev\ni\nousemp\nl\noyeroranyo\nt\nherpar\nt\ny\n.\nIfur\nt\nherrepresen\nt\nt\nha\nt\nmyperformanceofa\nl\nl\nt\nhe\nt\nermsof\nt\nh\ni\nsAgreemen\nt\nasanemp\nl\noyeeof\nt\nheCompanydoesno\nt\nandw\ni\nl\nl\nno\nt\nbreachanyagreemen\nt\nt\nokeep\ni\nnconf\ni\ndencepropr\ni\ne\nt\nary\ni\nnforma\nt\ni\non\n,\nknow\nl\nedgeorda\nt\naacqu\ni\nredbyme\ni\nnconf\ni\ndenceor\ni\nn\nt\nrus\nt\npr\ni\nor\nt\nomyemp\nl\noymen\nt\nw\ni\nt\nh\nt\nheCompany\n.\nIw\ni\nl\nl\nno\nt\nd\ni\nsc\nl\nose\nt\no\nt\nheCompanyor\ni\nnduce\nt\nheCompany\nt\nouseanyconf\ni\nden\nt\ni\na\nl\norpropr\ni\ne\nt\nary\ni\nnforma\nt\ni\nonorma\nt\ner\ni\na\nl\nbe\nl\nong\ni\nng\nt\noanyprev\ni\nousemp\nl\noyeroro\nt\nh ers\n.\nII\n.\nRem ed\ni\nesUponBreach\n.\nIunders\nt\nand\nt\nha\nt\nt\nhe res\nt\nr\ni\nc\nt\ni\nonscon\nt\na\ni\nned\ni\nn\nt\nh\ni\nsAgreemen\nt\narenecessaryfor\nt\nhepro\nt\nec\nt\ni\non of\nt\nhebus\ni\nnessandgoodw\ni\nl\nl\nof\nt\nheCompanyandIcons\ni\nder\nt\nhem\nt\nobereasonab\nl\neforsuch\npu rp ose\n.\nAnybreachof\nt\nh\ni\nsAgreemen\nt\ni\ns\nl\ni\nke\nl\ny\nt\nocause\nt\nheCompanysubs\nt\nan\nt\ni\na\nl\nand\ni\nrrevocab\nl\nedamageand\nt\nherefore\n,\ni\nn\nt\nheeven\nt\nofsuchbreach\n,\nt\nheCompany\n,\ni\nnadd\ni\nt\ni\non\nt\nosucho\nt\nherremed\ni\neswh\ni\nchmaybeava\ni\nl\nab\nl\ne\n,\nw\ni\nl\nl\nbeen\nt\ni\nt\nl\ned\nt\nospec\ni\nf\ni\ncperformanceando\nt\nher\ni\nn\nj\nunc\nt\ni\nve re\nl\ni\nef\n.\n12\n.\nUse of Vo\ni\nce\n,\nImageandL\ni\nkeness\n.\nIg\ni\nvec\nl\ni\nn\ni\nca\nl\ndeve\nl\nopmen\nt\n,\nsee k\ni\nngofregu\nl\na\nt\nory\nt\nheCompanyperm\ni\nss\ni\non\nt\nousemy vo\ni\nce\n,\ni\nmageor\nl\ni\nkeness\n,\nw\ni\nt\nhorw\ni\nt\nhou\nt\nus\ni\nngmyname\n,\nfor\nt\nhepurposesofadver\nt\ni\ns\ni\nngandpromo\nt\ni\nng\nt\nheCompany\n,\norforo\nt\nherpurposesdeemedappropr\ni\na\nt\neby\nt\nheCompany\ni\nn\ni\nt\nsreasonab\nl\ned\ni\nsc re\nt\ni\non\n,\nexcep\nt\nt\no\nt\nheex\nt\nen\nt\nexpress\nl\nyproh\ni\nb\ni\nt\nedby\nl\naw\n.\napprova\nl\ns\n,\nma rke\nt\ni\nngand\n/\norcommerc\ni\na\nl\ni\nza\nt\ni\nonof(\ni\n)an\nt\ni\nbod\ni\nes\n,\n(\ni\ni\n)an\nt\ni\ngensor(\ni\ni\ni\n)eng\ni\nneeredpro\nt\ne\ni\nn-oram\ni\nnoac\ni\nd-basedagen\nt\nsfora\nl\nl\nusesand\ni\nnd\ni\nca\nt\ni\nons\ni\nnhumansoran\ni\nma\nl\ns\nt\nha\nt\nac\nt\nt\nhroughmodu\nl\na\nt\ni\non(\ni\nnc\nl\nud\ni\nnge\ni\nt\nherasagon\ni\ns\nt\nsoran\nt\nagon\ni\ns\nt\ns)of\nt\nhe ac\nt\ni\nv\ni\nt\nyofpro\nt\ne\ni\nngrow\nt\nh fac\nt\norsbe\nl\nong\ni\nng\nt\no\nt\nheTransform\ni\nngGrow\nt\nhFac\nt\no r-su pe rfam\ni\nl\ny\n.\n13\n.\nPub\nl\ni\nca\nt\ni\nonsandPub\nl\ni\ncS\nt\na\nt\nem en\nt\ns\n.\nIw\ni\nl\nl\nob\nt\na\ni\nn\nt\nheCompany\n'\nswr\ni\nt\nt\nenapprova\nl\nbeforepub\nl\ni\nsh\ni\nngorsubm\ni\nt\nt\ni\nngforpub\nl\ni\nca\nt\ni\nonanyma\nt\ner\ni\na\nl\nt\nha\nt\nre\nl\na\nt\nes\nt\nomyworka\nt\nt\nheCompanyand\n/\nor\ni\nncorpora\nt\nesanyPropr\ni\ne\nt\naryInforma\nt\ni\non\n.\nToensure\nt\nha\nt\nt\nheCompanyde\nl\ni\nversacons\ni\ns\nt\nen\nt\nmessageabou\nt\ni\nt\nsproduc\nt\ns\n,\ns erv\ni\ncesandopera\nt\ni\nons\nt\no\nt\nhepub\nl\ni\nc\n,\n9\n.\nGovernmen\nt\nCon\nt\nrac\nt\ns\n.\nIacknow\nl\nedge\nt\nha\nt\nt\nheCompanymayhave\nt\nrom\nt\ni\nme\nt\no\nt\ni\nmeagreemen\nt\nsw\ni\nt\nho\nt\nherpersonsorw\ni\nt\nh\nt\nheUn\ni\nt\nedS\nt\na\nt\nesGovernmen\nt\nor\ni\nt\nsagenc\ni\neswh\ni\nch\ni\nmposeob\nl\ni\nga\nt\ni\nonsorres\nt\nr\ni\nc\nt\ni\nonson\nt\nheCompanyregard\ni\nng\ni\nnven\nt\ni\nonsmadedur\ni\nng\nt\nhecourseofwork under3\n/\n\\n.\n)(>-COMPIIT!ION\n,\nNON-SOLICITATION\n,\nCONFIDINTIALITYANDASSIGNMENTAGREEMENTandfur\nt\nher\ni\nnrecogm\nt\nwn\nt\nha\nt\nevenpos\ni\nt\ni\nves\nt\na\nt\nem en\nt\nsmayhaveade\nt\nr\ni\nmen\nt\na\nl\ne ffec\nt\non\nt\nheCompany\ni\nncer\nt\na\ni\nnsecur\ni\nt\ni\nes\nt\nransac\nt\ni\nonsando\nt\nhercon\nt\nex\nt\ns\n,\nanys\nt\na\nt\nemen\nt\nabou\nt\nt\nheCompanywh\ni\nchIcrea\nt\ne\n,\npub\nl\ni\nshorpos\nt\ndur\ni\nngmyper\ni\nodofemp\nl\noymen\nt\nandfors\ni\nx (6)mon\nt\nhs\nt\nhereaf\nt\ner\n,\nonanymed\ni\naaccess\ni\nb\nl\neby\nt\nhepub\nl\ni\nc\n,\ni\nnc\nl\nud\ni\nng bu\nt\nno\nt\nl\ni\nm\ni\nt\ned\nt\noe\nl\nec\nt\nron\ni\ncbu\nl\nl\ne\nt\ni\nnboardsandIn\nt\nern e\nt\nbasedcha\nt\nrooms\n,\nmus\nt\nf\ni\nrs\nt\nberev\ni\newedandapprovedbyanoff\ni\ncerof\nt\nheCompanybefore\ni\nt\ni\nsre\nl\neased\ni\nn\nt\nhepub\nl\ni\ncdoma\ni\nn\n.\nof\nt\nh\ni\nsAgreemen\nt\nt\noanyprospec\nt\ni\nve emp\nl\noyer\n,\npar\nt\nnerorco-ven\nt\nurerpr\ni\nor\nt\noen\nt\ner\ni\nng\ni\nn\nt\noabus\ni\nnessre\nl\na\nt\ni\nonsh\ni\npw\ni\nt\nhsuchpersonoren\nt\ni\nt\ny\n,\nand(\ni\ni\n)no\nt\ni\nfY\nt\nheCompanyofanysuchbus\ni\nnessre\nl\na\nt\ni\non sh\ni\np\n.\n18\n.\nSeverab\ni\nl\ni\nt\ny\n.\nIncaseanyprov\ni\ns\ni\nons(orpor\nt\ni\nons\nt\nhereof)con\nt\na\ni\nned\ni\nn\nt\nh\ni\nsAgreemen\nt\nw\ni\nl\nl\n,\nforanyreason\n,\nbehe\nl\nd\ni\nnva\nl\ni\nd\n,\ni\nl\nl\nega\nl\norunenforceab\nl\ne\ni\nnanyrespec\nt\n,\nsuch\ni\nnva\nl\ni\nd\ni\nt\ny\n,\ni\nl\nl\nega\nl\ni\nt\nyorunenforceab\ni\nl\ni\nt\nyw\ni\nl\nl\nno\nt\naffe c\nt\nt\nheo\nt\nherprov\ni\ns\ni\nonsof\nt\nh\ni\nsAgreemen\nt\n,\nand\nt\nh\ni\nsAgreemen\nt\nw\ni\nl\nl\nbecons\nt\nruedas\ni\nfsuch\ni\nnva\nl\ni\nd\n,\ni\nl\nl\nega\nl\norunenforceab\nl\neprov\ni\ns\ni\nonhadneverbeencon\nt\na\ni\nnedJ4\n.\nNoEmp\nl\noymen\nt\nOb\nl\ni\nga\nt\ni\non\n.\nIunders\nt\nand\nt\nha\nt\nt\nh\ni\nsAgreemen\nt\ndoesno\nt\nc rea\nt\neanob\nl\ni\nga\nt\ni\nonon\nt\nheCompanyoranyo\nt\nherperson\nt\nocon\nt\ni\nnuemyhere\ni\nn\n.\nIf\n,\nmoreover\n,\nanyoneormoreof\nt\nheprov\ni\ns\ni\nonscon\nt\na\ni\nned\ni\nn\nt\nh\ni\nsAgreemen\nt\nw\ni\nl\nl\nforanyreasonbehe\nl\nd\nt\nobeexcess\ni\nve\nl\nybroadas\nt\nodura\nt\ni\non\n,\ngeograph\ni\nca\nl\nscope\n,\nac\nt\ni\nv\ni\nt\nyorsub\nj\nec\nt\n,\ni\nt\nw\ni\nl\nl\nbecons\nt\nruedby\nl\ni\nm\ni\nt\ni\nngandreduc\ni\nng\ni\nt\n,\nsoas\nt\nobeenforceab\nl\ne\nt\no\nt\nheex\nt\nen\nt\ncompa\nt\ni\nb\nl\new\ni\nt\nh\nt\nheapp\nl\ni\ncab\nl\ne\nl\nawas\ni\nt\nw\ni\nl\nl\nt\nhenappear\n.\nemp\nl\noymen\nt\n.\nIacknow\nl\nedge\nt\nha\nt\n,\nsub\nj\nec\nt\nt\no\nt\nhe\nt\nermsof\nt\nheEmp\nl\noymen\nt\nAgreemen\nt\nt\nowh\ni\nch\nt\nh\ni\nsAgreemen\nt\ni\nsa\nt\nt\nachedasExh\ni\nb\ni\nt\nA\n,\nmyemp\nl\noymen\nt\nw\ni\nt\nh\nt\nheCompany\ni\nsa\nt\nw\ni\nl\nl\nand\nt\nhereforemaybe\nt\nerm\ni\nna\nt\ned by\nt\nheCompanyormea\nt\nany\nt\ni\nmeandforanyreason\n.\n19\n.\nEn\nt\ni\nreAgreemen\nt\n.\nTh\ni\nsAgreemen\nt\nSurv\ni\nva\nl\nandAss\ni\ngnmen\nt\nby\nt\nhe\nl\n5\n.\ncons\nt\ni\nt\nu\nt\nes\nt\nheen\nt\ni\nreandon\nl\nyagreemen\nt\nbe\nt\nwe en\nt\nheCompanyandmerespec\nt\ni\nng\nt\nhesub\nj\nec\nt\nma\nt\nt\nerhereof\n,\nandsupersedesa\nl\nl\npr\ni\noragreemen\nt\nsandCompany\n.\nIunders\nt\nand\nt\nha\nt\nmyob\nl\ni\nga\nt\ni\nonsunder\nt\nh\ni\nsAgreemen\nt\nw\ni\nl\nl\ncon\nt\ni\nnue\ni\nnaccordancew\ni\nt\nh\ni\nt\nsexpress\nt\nerm s reg ard\nl\nessofanychanges\ni\nnmy\nt\ni\nt\nl\ne\n,\npos\ni\nt\ni\non\n,\ndu\nt\ni\nes\n,\nsa\nl\nary\n,\ncompensa\nt\ni\nonorbenef\ni\nt\nsoro\nt\nher\nt\nermsandcond\ni\nt\ni\nonsofemp\nl\noymen\nt\n.\nIfur\nt\nherunders\nt\nand\nt\nha\nt\nmyob\nl\ni\nga\nt\ni\nonsunder\nt\nh\ni\nsAgreemen\nt\nw\ni\nl\nl\ncon\nt\ni\nnuefo\nl\nl\now\ni\nng\nt\nhe\nt\nerm\ni\nna\nt\ni\nonofmyemp\nl\noymen\nt\nreg ard\nl\nessof\nt\nhemannerofsuch\nt\nerm\ni\nna\nt\ni\nonandw\ni\nl\nl\nbeb\ni\nnd\ni\nnguponmyhe\ni\nrs\n,\nexecu\nt\norsandadm\ni\nn\ni\ns\nt\nra\nt\nors\n.\nTheCompanyw\ni\nl\nl\nunders\nt\nand\ni\nngs\n,\nora\nl\norwr\ni\nt\nt\nen\n,\nbe\nt\nweenusconcern\ni\nngsuchsub\nj\nec\nt\nma\nt\nt\ner\n.\nNomod\ni\nf\ni\nca\nt\ni\non\n,\namendmen\nt\n,\nwa\ni\nveror\nt\nerm\ni\nna\nt\ni\nonof\nt\nh\ni\nsAgreemen\nt\norofanyprov\ni\ns\ni\nonhereofw\ni\nl\nl\nbeb\ni\nnd\ni\nng un\nl\ness mad e\ni\nnwr\ni\nt\ni\nngands\ni\ngnedbyanau\nt\nhor\ni\nzedoff\ni\ncerof\nt\nheCompany\n.\nFa\ni\nl\nure of\nt\nheCompany\nt\no\ni\nns\ni\ns\nt\nupons\nt\nr\ni\nc\nt\ncomp\nl\ni\nancew\ni\nt\nhanyof\nt\nhe\nt\ne rms\n,\ncovenan\nt\nsorcond\ni\nt\ni\nonshereofw\ni\nl\nl\nno\nt\nbedeemedawa\ni\nverofsuch\nt\ne rms\n,\ncovenan\nt\nsorcond\ni\nt\ni\nons\n.\n20\n.\nIn\nt\ne rpre\nt\na\nt\ni\non\n.\nTh\ni\nsAgreemen\nt\nw\ni\nl\nl\nbedeemed\nt\nobemadeanden\nt\nere d\ni\nn\nt\no\ni\nn\nt\nheCommonwea\nl\nt\nhofMassachuse\nt\nt\ns\n,\nandw\ni\nl\nl\ni\nna\nl\nl\nrespec\nt\nsbe\ni\nn\nt\nerp re\nt\ned\n,\nenforcedandgoverned under\nt\nhe\nl\nawsof\nt\nheCommonwea\nl\nt\nhofMassachuse\nt\nt\ns\n.\nIherebyagree\nt\noconsen\nt\nt\nopersona\nl\nj\nur\ni\nsd\ni\nc\nt\ni\nonof\nt\nhes\nt\na\nt\neandfedera\nl\ncour\nt\nss\ni\nt\nua\nt\nedw\ni\nt\nh\ni\nnSuffo\nl\nkCoun\nt\ny\n,\nMassachuse\nt\nt\nsforpurposesofenforc\ni\nng\nt\nh\ni\nsAgreemen\nt\n,\nandwa\ni\nveanyob\nj\nec\nt\ni\non\nt\nha\nt\nIm\ni\ngh\nt\nha ve\nt\nopersona\nl\nj\nur\ni\nsd\ni\nc\nt\ni\nonorvenue\ni\nn\nt\nhosecour\nt\ns\n.\nAsused\ni\nn\nt\nh\ni\nsAgreemen\nt\n,\n'\n'\ni\nnc\nl\nud\ni\nng"means"\ni\nnc\nl\nud\ni\nngbu\nt\nno\nt\nl\ni\nm\ni\nt\ned\nt\no"\n.\nhave\nt\nher\ni\ngh\nt\nt\noass\ni\ngnAff\ni\nl\ni\na\nt\nes\n,\nsuccessorsandconsen\nt\nt\nobeboundbyAgreemen\nt\nfor\nt\nhebenef\ni\nt\nt\nh\ni\nsAgreemen\nt\nt\no\ni\nt\nsass\ni\ngns\n.\nIexpress\nl\ny\nt\nheprov\ni\ns\ni\nonsof\nt\nh\ni\nsof\nt\nheCompanyoranyparen\nt\n,\nsubs\ni\nd\ni\naryorAff\ni\nl\ni\na\nt\ne\nt\nowhoseemp\nl\noyImaybe\nt\nransferredAgreemen\nt\nbe\nt\nran sfe r\n.\nw\ni\nt\nhou\nt\nt\nhenecess\ni\nt\ny\nt\nha\nt\nre-execu\nt\neda\nt\nt\nhe\nt\ni\nmeof\nt\nh\ni\nssuch16\n.\nEx\ni\nt\nIn\nt\nerv\ni\new\n.\nIfandwhenIdepar\nt\nfromrequ\ni\nred\nt\noa\nt\nt\nendanex\ni\nt\nt\nheCompany\n,\nImaybe\ni\nn\nt\nerv\ni\newands\ni\ngnan"Emp\nl\noyeeEx\ni\nt\nAcknow\nl\nedgemen\nt\n"\nt\no rea\nt\nl\ni\nrmmyaccep\nt\nanceandacknow\nl\nedgemen\nt\nof\nt\nheob\nl\ni\nga\nt\ni\nonsse\nt\nfor\nt\nh\ni\nn\nt\nh\ni\nsAgreemen\nt\n.\nFor\nt\nwe\nl\nve(12)mon\nt\nhsfo\nl\nl\now\ni\nng\nt\nerm\ni\nna\nt\ni\nonofmyemp\nl\noymen\nt\n,\nIw\ni\nl\nl\nno\nt\ni\nfy\nt\nheCompanyofanychange\ni\nnmyaddressandofeach\n:\n,\nubsequen\nt\nemp\nl\noymen\nt\norbus\ni\nnessac\nt\ni\nVI\nt\ny\n,\ni\nnc\nl\nud\ni\nng\nt\nhenameandaddressofmyemp\nl\noyeroro\nt\nherpos\nt\n-Companyemp\nl\noymen\nt\np\nl\nansand\nt\nhe na\nt\nureofmyac\nt\ni\nv\ni\nt\ni\nes\n.\nJ7\n.\nD\ni\nsc\nl\nosuredur\ni\nng\nt\nheRes\nt\nr\ni\nc\nt\nedPer\ni\nod\n.\nDur\ni\nng\nt\nheRes\nt\nr\ni\nc\nt\nedPer\ni\nod\n,\nIw\ni\nl\nl\n(\ni\n)prov\ni\ndeacopy4\nIUNDERSTANDTHATTHISAGREEMENTAFFECTSIMPORTANTRIGHTS\n.\nBYUSINGBELOWICERTIFYTHATHIHAVEREASTHISAGREEMENTCAREFULLYANDSATISFIEDTHATIUNDERSTANDITCOMPLETELY\n.\nINWITNESSWHEREOF\n,\nt\nheunders\ni\ngnedhasexecu\nt\ned\nt\nh\ni\nsagreemen\nt\nas sca\nl\ned\ni\nns\nt\nrumen\nt\nasof\nt\nheda\nt\nese\nt\nfor\nt\nhbe\nl\now\n.\nS\ni\ngnedNageshMahan\nt\nrappa\nAPPENDIXATo\n:\nSc ho\nl\narRock\n,\nLLCFrom\n:\nNageshMahan\nt\nhappaDa\nt\ne\n:\nOc\nt\nober_\n,\n2012SUBJECT\n:\nPr\ni\norInven\nt\ni\nonsThefo\nl\nl\now\ni\nng\ni\nsacomp\nl\ne\nt\ne\nl\ni\ns\nt\nofa\nl\nl\ni\nnven\nt\ni\nonsor\ni\nmprovemen\nt\nsre\nl\nev an\nt\nt\no\nt\nhesub\nj\nec\nt\nma\nt\nt\nerofmyemp\nl\noymen\nt\nby\nt\nheCompany\nt\nha\nt\nhavebeenmadeorconce\ni\nvedorf\ni\nrs\nt\nred uc ed\nt\noprac\nt\ni\ncebymea\nl\noneor\nj\no\ni\nn\nt\nl\nyw\ni\nt\nho\nt\nherspr\ni\nor\nt\nomyengagemen\nt\nby\nt\nheCompany\n:\nXNo\ni\nnven\nt\ni\nonsor\ni\nmprovemen\nt\nsSeebe\nl\now\n:\nAdd\ni\nt\ni\nona\nl\nsh ee\nt\nsa\nt\nt\nachedThefo\nl\nl\now\ni\nng\ni\nsa\nl\ni\ns\nt\nofa\nl\nl\nUn\ni\nt\nedS\nt\na\nt\nespa\nt\nen\nt\nsandpa\nt\nen\nt\napp\nl\ni\nca\nt\ni\nons\ni\nnwh\ni\nchIhavebeennamedasan\ni\nnv en\nt\nor(no\nt\ne\nt\nha\nt\nfore\ni\ngncoun\nt\nerp ar\nt\nsweref\ni\nl\ned\ni\nna\nl\nl\nca ses\n,\nbu\nt\ns\nt\na\nt\nus\ni\nsno\nt\nknown\nt\nomeasof\nt\noday\n'\nsda\nt\ne)\n:\nNoneXSeebe\nl\now\n:\nIssu ed Pa\nt\nen\nt\ns7\n,\n144\n,\n9977\n,\n138\n,\n4926\n,\n884\n,\n7706\n,\n767\n,\n8886\n,\n750\n,\n1966\n,\n087\n,\n3235\n,\n681\n,\n568Ver\nt\neb ra\nt\neembryon\ni\ncpa\nt\nt\nern\ni\nng-\ni\nnduc\ni\nngpro\nt\ne\ni\nns\n,\ncompos\ni\nt\ni\nonsandusesre\nl\na\nt\ned\nt\nher\nt\noMe\nt\nhodof\nt\nrea\nt\ni\nng dopam\ni\nn erg\ni\ncandGABA-nerg\ni\ncd\ni\nsordersMe\nt\nhodsandcompos\ni\nt\ni\nonsfor\nt\nrea\nt\ni\nng orpreven\nt\ni\nngper\ni\nphera\nl\nneuropa\nt\nh\ni\nesNeuropro\nt\nec\nt\ni\nveme\nt\nhodsandreagen\nt\nsMe\nt\nhodsof\nt\nrea\nt\ni\nngd\ni\nsordersof\nt\nheeyeUseofneuregu\nl\ni\nnsasmodu\nl\na\nt\norsofce\nl\nl\nu\nl\narcommun\ni\nca\nt\ni\nonDev\ni\nceforde\nl\ni\nveryofsubs\nt\nancesandme\nt\nhodsofuse\nt\nhereofPa\nt\nen\nt\nApp\nl\ni\nca\nt\ni\nons20100144616200802210372007025436420070048286200402357392004022009620030162698Neuropro\nt\nec\nt\ni\nveme\nt\nhodsandreagen\nt\nsMe\nt\nhodsandcompos\ni\nt\ni\nonsfor\nt\nrea\nt\ni\nngd\ni\ns ord ers\ni\nnvo\nl\nv\ni\nngexc\ni\nt\no\nt\nox\ni\nc\ni\nt\nyMe\nt\nhodsandcompos\ni\nt\ni\nonsfor\nt\nrea\nt\ni\nngd\ni\nso rd ers\ni\nnvo\nl\nv\ni\nngexc\ni\nt\no\nt\nox\ni\nc\ni\nt\nyMe\nt\nhodof\nt\nrea\nt\ni\nngdopam\ni\nn erg\ni\ncandGABA-nerg\ni\ncd\ni\nsordersNeuropro\nt\nec\nt\ni\nveme\nt\nhodsandreagen\nt\nsMe\nt\nhodandcompos\ni\nt\ni\nons\nt\nor\nt\nrea\nt\ni\nngdopam\ni\nn erg\ni\ncandgabanerg\ni\ncd\ni\nsordersMETHODSANDCOMPOSITIONSFORTREATINGDOPAMINERGICANDGABA-NERGICDISORDERS20030I19729METHODOFTREATING\nDOPAMINERGICANDGABA-NERGJCDISORDERS\n20030083242METHODSANDCOMPOSITIONSFORTREATINGORPREVENTINGPERIPHERALNEUROPATHIESNEUREGULINSASMODULATORSOFCELLULARCOMMUNICATIONVERTEBRATEEMBRYONICPATTERNING-INDUCINGPROTEINS\n,\n2003004046520020045206COMPOSITIONSANDUSESRELATEDTHERTO
+72f91408258be59298f412dad65e3baa.pdf	effective_date jurisdiction party term	EX-10.13 4 d324821dex1013.htm FORM OF DIRECTOR CONFIDENTIALITY AND NON-COMPETITION\nAGREEMENT\nExhibit 10.13\nROUNDY’S, INC.\nDIRECTOR CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Director Confidentiality and Non-Competition Agreement (this “Agreement”) is entered into as of the\nday of\n, 201 ,by\nthe undersigned for the benefit of Roundy’s, Inc. (“Roundy’s”) and its current and future Subsidiaries and Affiliates (as hereinafter defined).\nRoundy’s and its Subsidiaries and Affiliates are referred to herein collectively as the “Company.”\nPREAMBLE:\nI am a director of the Company. I understand that in the course of my service to the Company, I will have access to and become acquainted\nwith a great deal of confidential, proprietary information concerning the Company's business, products, services, customers, sales and marketing\nefforts and practices, financial information, market strategies, corporate strategies, capital structure, ownership, and other valuable proprietary\ninformation. Some or all of such information may constitute "trade secrets" of the Company within the meaning of the Wisconsin Trade Secrets Act,\nWis. Stat. §134.90.\nI understand that such information is the exclusive property of the Company, and its disclosure to third persons could have a significant\nadverse effect on the Company's competitive position and business. Further, my use of such knowledge and information, and of the experience I\nhave and will gain in the course of my service to the Company, in a manner competitive with the Company's business would have a substantial\ndetrimental effect on the business and the value of the Company. The Company therefore wishes to maintain the strictest confidentiality of all such\ninformation and to take all reasonable steps to prevent its unauthorized dissemination or its use in a manner competitive with the Company's\nbusiness, and to prohibit me from competing with the Company during the time I am serving as a director of the Company.\nThe Company has offered to grant me Restricted Stock pursuant to the Company’s parent corporation, Roundy’s, Inc. (the “Restricted Stock”).\nI understand that the Company’s willingness to grant the Restricted Stock is in consideration, in part, of my entering into this Agreement.\nAGREEMENT:\nTherefore, in consideration of these circumstances, my continued directorship with the Company, and Company’s granting me the Restricted\nStock, I agree as follows:\n1. Confidential Information.\n(a) I acknowledge that by reason of my duties to and association with the Company, I have had and will have access to and have and will\nbecome informed of Confidential Information. For purposes of this Agreement, “Confidential Information” means all information of a confidential\nor proprietary nature (whether or not specifically labeled or identified as “confidential”), in any form or medium, that is or was disclosed to, or\ndeveloped or learned by, me in connection with my relationship with the Company or any of its stockholders or investors prior to the date hereof or\nduring the continuation of my serving as a director of the Company, and that relates to the actual or anticipated business, products, services,\nfinancing, research or development of the Company or any of its stockholders or investors or their respective suppliers, distributors or customers.\nConfidential Information includes, but is not limited to, the following: (i) internal business information (including information relating to strategic\nand staffing plans and practices, business, training, marketing, promotional and sales plans and practices, cost, rate and pricing structures, accounting\nand business methods); (ii) identities of, individual requirements of, specific contractual arrangements with, information about and confidential and\nproprietary information of any of the Company’s suppliers, distributors and customers; (iii) trade secrets, compilations of data and analyses,\ntechniques, systems, formulae, research, records, reports, manuals, documentation, models, data and data bases relating thereto; (iv) inventions,\ninnovations, improvements, developments, methods, designs, analyses, drawings, reports and all similar or related information (whether or not\npatentable); and (v) Acquisition Targets and Active Targets (as defined below). Confidential Information shall not include information that (a) is or\nbecomes publicly known through no wrongful act or breach of obligation of confidentiality; (b) was rightfully received by me from a third party\n(other than the Company or any of the Company’s suppliers, distributors or customers) without a breach of any obligation of confidentiality by such\nthird party known to me or (c) was known to me prior to the beginning of my service as a director of the Company.\n(b) During the term of my service as a director of the Company, I agree to keep in strict confidence and not, directly or indirectly, make\nknown, disclose, furnish, make available or use any Confidential Information, except for use in my regular authorized duties on behalf of the\nCompany. Following the termination (for any reason whatsoever) of directorship with the Company, I agree to keep in strict confidence and not,\ndirectly or indirectly, make known, disclose, furnish, make available or use any Confidential Information in the Geographic Area (as defined below).\nI acknowledge and agree that all documents and other property including or reflecting Confidential Information furnished to me by the Company or\nany of its shareholders, or investors or otherwise acquired or developed by me or known by me shall at all times be the sole and exclusive property\nof the Company. During my service as a director of the Company and thereafter, I will take all necessary and appropriate steps to safeguard\nConfidential Information and protect it against disclosure, misappropriation, misuse, loss and theft. I will deliver to the Company at the termination\nof my directorship, or at any other time the Company may request, all memoranda, notes, plans, records, reports, computer disks or tapes, printouts\nand software and other documents and data (and copies thereof) relating to or containing any Confidential Information, Work Product (as defined\nbelow) or the business of the Company or any of its shareholders or investors which I may then possess or have under my control and shall erase all\nembodiments of the Confidential Information from all storage devices. If I am required to disclose Confidential Information pursuant to any\napplicable law or court order, I will provide the Company with prior written notice of the requirement for disclosure that details the Confidential\nInformation to be disclosed and will cooperate with the Company to preserve the confidentiality of such information to the extent possible.\n2. Common Law of Torts or Trade Secrets. In addition to the Company’s rights and my duties as specifically set out in this Agreement, the\nCompany will retain all such rights, and I will be bound by all such duties, to protect the Company’s Confidential Information, as are or may be\nprovided under the law, including without limitation the Wisconsin Trade Secrets Act (Wis. Stat. §134.90). Nothing herein will diminish the\nCompany’s common law and statutory rights to:\n2\n(a) keep such information secret for as long as the law allows;\n(b) protect such information from disclosure to any third party, wherever located;\n(c) protect such information from use by any person, including me, not authorized by the Company; and\n(d) seek any remedies and take any measures necessary to protect the Company’s Confidential Information.\n3. Inventions and Patents.\n(a) I acknowledge that all Work Product is the exclusive property of the Company. I hereby assign all right, title and interest in and to all\nWork Product to the Company. Any copyrightable works that fall within Work Product will be deemed “works made for hire” under Section 201(b)\nof the 1976 Copyright Act, and the Company shall own all of the rights comprised in the copyright therein; provided, however, that to the extent\nsuch works may not, by operation of law, constitute “works made for hire,” I hereby assign to the Company all right, title and interest therein.\n(b) I will promptly and fully disclose all Work Product to the Company and will cooperate and perform at the expense of the Company\nall actions reasonably requested by the Company (whether during or after my service as a director of the Company) to establish, confirm and protect\nthe Company’s right, title and interest in such Work Product. Without limiting the generality of the foregoing, I agree to assist the Company, at the\nCompany’s expense, to secure its rights in the Work Product in any and all countries, including the execution of all applications and all other\ninstruments and documents which the Company shall deem necessary in order to apply for and obtain rights in such Work Product and in order to\nassign and convey to the Company the sole and exclusive right, title and interest in and to such Work Product. If the Company is unable because of\nmy mental or physical incapacity or for any other reason (including my refusal to do so after request therefor is made by the Company) to secure my\nsignature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering Work Product\nbelonging to or assigned to the Company pursuant to Section 3(a) above, then I hereby irrevocably designate and appoint Roundy’s and each of its\nduly authorized officers and agents as my agent and attorney-in-fact to act for and in my behalf and stead to execute and file any such applications\nand to do all other lawfully permitted acts to further the prosecution and issuance of patents or copyright registrations thereon with the same legal\nforce and effect as if executed by me. I agree not to apply for or pursue any application for any United States or foreign patents or copyright\nregistrations covering any Work Product other than pursuant to this paragraph in circumstances where such patents or copyright registrations are or\nhave been or are required to be assigned to the Company.\n4. Non-Competition; Non-Solicitation; Non-Interference.\n(a) I agree that, except with regards to my service as a director for Tops Holding Corporation and a director for PetSmart, Inc., during my\nservice as a director of the Company, I will not directly or indirectly own any interest in, manage, control, participate in (whether as an officer,\ndirector, employee, partner, agent, representative or otherwise), consult with, render services for, or in any other manner engage in any business\nwhich is, directly or indirectly, engaged in any business in which the Company engages or proposes to engage during the period of my service as a\ndirector of the Company.\n3\n(b) Nothing herein shall prohibit me from being a passive owner of not more than 2% of the outstanding securities of any class of a\ncorporation which is publicly traded, so long as I have no active participation in the business of any such corporation.\n(c) During my service as a director of the Company and throughout the Nonsolicitation Period, I will not directly or indirectly (including\nthrough another person) solicit or attempt to solicit, induce or attempt to induce any employee, consultant, agent, independent contractor or any other\nperson otherwise engaged in a services or business relationship (including, without limitation, any customer, supplier, licensee or licensor) with the\nCompany to leave the employ of or terminate or otherwise adversely alter such person’s relationship with the Company, or in any way interfere with\nthe relationship between the Company and any such person; provided, however, I will not be prohibited from engaging the services of any such\nperson who is also engaged by the Company (other than any employee of the Company, or any consultant or agent providing services substantially\non a full-time basis to the Company relating primarily to the Food Industries, as that term is defined below) so long as any such engagement would\nnot otherwise constitute a breach of this Section 4(d).\n(d) During the Nonsolicitation Period, I will not directly or indirectly (including through another person) hire or otherwise engage the\nservices of any person who was an employee of the Company at any time during the ninety (90) day period immediately preceding the termination of\nmy directorship with the Company.\n(e) During my service as a director of the Company and throughout the Nonsolicitation Period, I will not directly or indirectly (including\nthrough another person) acquire or attempt to acquire any business in the United States of America to which the Company or any of its shareholders\nor investors has made any proposal during the Reference Period relating to the possible acquisition of such business by the Company or any of its\nshareholders or investors (an “Acquisition Target”), or take any action to induce or attempt to induce any Acquisition Target to consummate any\nacquisition, investment or other similar transaction with any person other than the Company or any of its shareholders or investors.\n(f) If, at the time of enforcement of any covenant or agreement contained in Section 1, 2, 4(a), 4(c) or 4(d) of this Agreement, a court\nholds that the duration, scope, or area restrictions stated herein are unreasonable under circumstances then existing, I agree that the maximum period,\nscope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court will be\nallowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. Because my services\nare unique and because I have access to Confidential Information and Work Product, I agree that monetary damages would not be an adequate\nremedy for any breach of this Agreement. Therefore, in the event a breach or threatened breach of this Agreement, the Company or its successors or\nassigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance\nand/or injunctive or similar relief in order to enforce, or prevent any violations of, the provisions hereof. In addition, in the event of a breach or\nviolation by me of any covenant or agreement in Section 4(a), 4(b), 4(d) or 4(e), the Noncompete Period set forth in such Section with respect to\nsuch covenant or agreement shall be tolled until such breach or violation has been duly cured.\n5. Definitions.\n“Active Targets” means a company or a division of a company in the Food Industries which, during the Reference Period, the Company has\nspent a significant amount of time investigating as a possible investment or acquisition candidate.\n4\n“Affiliate” of a person means any other person or investment fund controlling, controlled by or under common control with the person and, in\nthe case of a person which is a partnership, any partner of the person.\n“Food Industries” means the retail grocery industry.\n“Geographic Area” means the States of Illinois, Minnesota, Wisconsin, any other state in which the Company or any of its Subsidiaries\nconduct significant business after the date hereof, and any other state in which an Active Target is located.\n“Nonsolicitation Period” means the one (1) year period following the Termination Date.\n“Reference Period” means the one (1) year period immediately preceding the Termination Date.\n“Subsidiary” means, with respect to any person, any corporation, limited liability company, partnership, association or business entity of which\n(i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in\nthe election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that person or one or more of the\nother Subsidiaries of that person or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity\n(other than a corporation), a majority of partnership or other similar ownership interest thereof is at the time owned or controlled, directly or\nindirectly, by any person or one or more Subsidiaries of that person or a combination thereof. For purposes hereof, a person or persons shall be\ndeemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity (other than a\ncorporation) if such person or persons shall be allocated a majority of limited liability company, partnership, association or other business entity\ngains or losses or shall be or control any managing director or general partner of such limited liability company, partnership, association or other\nbusiness entity.\n“Termination Date” means the date on which my directorship with Roundy’s terminates, regardless of the reason for that termination.\n“Work Product” means all inventions, innovations, improvements, developments, methods, processes, designs, analyses, drawings, reports and\nall similar or related information (whether or not patentable or reduced to practice or comprising Confidential Information) and any copyrightable\nwork, trade mark, trade secret or other intellectual property rights (whether or not comprising Confidential Information) and any other form of\nConfidential Information, any of which relate to the Company’s actual or anticipated business, research and development or existing or future\nproducts or services and which were or are conceived, reduced to practice, contributed to, developed, made or acquired by me (whether alone or\njointly with others) while serving as a director (both before and after the date hereof) of Roundy’s (or its predecessors, successors or assigns).\n6. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, mailed by first class mail\n(postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the recipients at the address\nindicated below:\nIf to me:\n5\nIf to the Company: Roundy’s, Inc.\n875 East Wisconsin Avenue\nMilwaukee, WI 53202\nAttn: Darren W. Karst\nor to such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been duly given or made as follows: (a) if sent by registered or certified mail in the United\nStates, return receipt requested, upon actual receipt; (b) if sent by reputable overnight air courier (such as DHL or Federal Express), two business\ndays after being so sent; (c) if sent by telecopy or facsimile transmission (and receipt is confirmed), when transmitted at or before 5:00 p.m . local\ntime at the location of receipt on a business day, and if received after 5:00 p.m . or on a day other than a business day, on the next following business\nday, but only if also sent by reputable overnight air courier within one business day following transmission; or (d) if otherwise actually personally\ndelivered, when so delivered.\n7. General Provisions.\n(a) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or\nrule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Agreement\nshall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.\nThe parties specifically acknowledge and agree that each covenant and agreement contained in Section 1, 2, 3, 4(a), 4(b), 4(d) or 4(e) of this\nAgreement is separate and independent.\n(b) Complete Agreement. This Agreement, together with the Restricted Stock, and those other documents expressly referred to herein\nand other documents of even date herewith embody the complete agreement and understanding among the parties and supersede and preempt any\nprior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in\nany way.\n(c) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(d) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and its successors and assigns.\n(e) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin\nwithout giving effect to any choice of law or conflict of law provision or rule (whether of the State of Wisconsin or any other jurisdiction)\nthat would cause the application of the law of any jurisdiction other than the State of Wisconsin.\n6\n(f) Remedies. The Company shall be entitled to enforce its rights under this Agreement specifically, to recover damages and costs\n(including reasonable attorney’s fees) caused by any breach of any provision of this Agreement and to exercise all other rights existing in its favor. I\nagree and acknowledge that money damages would not be an adequate remedy for any breach of the provisions of this Agreement and that the\nCompany may in its sole discretion apply to any court of law or equity of competent jurisdiction (without posting any bond or deposit) for specific\nperformance and/or other injunctive relief in order to enforce or prevent any violations of the provisions of this Agreement.\n(g) Survival. The provisions of this Agreement shall survive and continue in full force and effect in accordance with their terms\nnotwithstanding any termination of my service as a director of the Company, regardless of the reason for that termination.\n(h) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and me.\n(i) Advice of Counsel. I acknowledge that I have been encouraged by the Company to obtain independent legal advice and counsel prior\nto entering into this Agreement, that I have obtained such independent advice and counsel, and that I understand fully all the terms and provisions\ncontained in this Agreement.\n(j) Other Laws. Nothing in this Agreement shall be construed to limit or negate any common or statutory law, including, without\nlimitation, any laws of fiduciary duties, torts or trade secrets, where it provides the parties hereunder with broader protection than that provided\nherein.\n(l) Waiver of Jury Trial. I HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE\nANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR\nOTHERWISE) BETWEEN OR AMONG ANY OF THE PARTIES ARISING OUT OF OR IN ANY WAY RELATED TO THIS\nAGREEMENT.\nIN WITNESS WHEREOF, I have executed this Director Confidentiality and Non-Competition Agreement on the date first written above.\nDIRECTOR:\n7	EX-10.13 4 d324821dex1013.htm FORM OF DIRECTOR CONFIDENTIALITY AND NON-COMPETITION\nAGREEMENT\nExhibit 10.13\nROUNDY’S, INC.\nDIRECTOR CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Director Confidentiality and Non-Competition Agreement (this “Agreement”) is entered into as of the day of ,201 , by\nthe undersigned for the benefit of Roundy’s, Inc. (“Roundy’s”) and its current and future Subsidiaries and Affiliates (as hereinafter defined).\nRoundy’s and its Subsidiaries and Affiliates are referred to herein collectively as the “Company.”\n \nPREAMBLE:\nI am a director of the Company. I understand that in the course of my service to the Company, I will have access to and become acquainted\nwith a great deal of confidential, proprietary information concerning the Company's business, products, services, customers, sales and marketing\nefforts and practices, financial information, market strategies, corporate strategies, capital structure, ownership, and other valuable proprietary\ninformation. Some or all of such information may constitute "trade secrets" of the Company within the meaning of the Wisconsin Trade Secrets Act,\nWis. Stat. §134.90.\nI understand that such information is the exclusive property of the Company, and its disclosure to third persons could have a significant\nadverse effect on the Company's competitive position and business. Further, my use of such knowledge and information, and of the experience I\nhave and will gain in the course of my service to the Company, in a manner competitive with the Company's business would have a substantial\ndetrimental effect on the business and the value of the Company. The Company therefore wishes to maintain the strictest confidentiality of all such\ninformation and to take all reasonable steps to prevent its unauthorized dissemination or its use in a manner competitive with the Company's\nbusiness, and to prohibit me from competing with the Company during the time I am serving as a director of the Company.\nThe Company has offered to grant me Restricted Stock pursuant to the Company’s parent corporation, Roundy’s, Inc. (the “Restricted Stock”).\nI understand that the Company’s willingness to grant the Restricted Stock is in consideration, in part, of my entering into this Agreement.\nAGREEMENT:\nTherefore, in consideration of these circumstances, my continued directorship with the Company, and Company’s granting me the Restricted\nStock, I agree as follows:\n1. Confidential Information.\n(a) T acknowledge that by reason of my duties to and association with the Company, I have had and will have access to and have and will\nbecome informed of Confidential Information. For purposes of this Agreement, “Confidential Information” means all information of a confidential\nor proprietary nature (whether or not specifically labeled or identified as “confidential”), in any form or medium, that is or was disclosed to, or\ndeveloped or learned by, me in connection with my relationship with the Company or any of its stockholders or investors prior to the date hereof or\nduring the continuation of my serving as a director of the Company, and that relates to the actual or anticipated business, products, services,\nfinancing, research or development of the Company or any of its stockholders or investors or their respective suppliers, distributors or customers.\nConfidential Information includes, but is not limited to, the following: (i) internal business information (including information relating to strategic\nand staffing plans and practices, business, training, marketing, promotional and sales plans and practices, cost, rate and pricing structures, accounting\nand business methods); (ii) identities of, individual requirements of, specific contractual arrangements with, information about and confidential and\nproprietary information of any of the Company’s suppliers, distributors and customers; (iii) trade secrets, compilations of data and analyses,\ntechniques, systems, formulae, research, records, reports, manuals, documentation, models, data and data bases relating thereto; (iv) inventions,\ninnovations, improvements, developments, methods, designs, analyses, drawings, reports and all similar or related information (whether or not\npatentable); and (v) Acquisition Targets and Active Targets (as defined below). Confidential Information shall not include information that (a) is or\nbecomes publicly known through no wrongful act or breach of obligation of confidentiality; (b) was rightfully received by me from a third party\n(other than the Company or any of the Company’s suppliers, distributors or customers) without a breach of any obligation of confidentiality by such\nthird party known to me or (c) was known to me prior to the beginning of my service as a director of the Company.\n(b) During the term of my service as a director of the Company, I agree to keep in strict confidence and not, directly or indirectly, make\nknown, disclose, furnish, make available or use any Confidential Information, except for use in my regular authorized duties on behalf of the\nCompany. Following the termination (for any reason whatsoever) of directorship with the Company, I agree to keep in strict confidence and not,\ndirectly or indirectly, make known, disclose, furnish, make available or use any Confidential Information in the Geographic Area (as defined below).\nI acknowledge and agree that all documents and other property including or reflecting Confidential Information furnished to me by the Company or\nany of its shareholders, or investors or otherwise acquired or developed by me or known by me shall at all times be the sole and exclusive property\nof the Company. During my service as a director of the Company and thereafter, I will take all necessary and appropriate steps to safeguard\nConfidential Information and protect it against disclosure, misappropriation, misuse, loss and theft. I will deliver to the Company at the termination\nof my directorship, or at any other time the Company may request, all memoranda, notes, plans, records, reports, computer disks or tapes, printouts\nand software and other documents and data (and copies thereof) relating to or containing any Confidential Information, Work Product (as defined\nbelow) or the business of the Company or any of its shareholders or investors which I may then possess or have under my control and shall erase all\nembodiments of the Confidential Information from all storage devices. If I am required to disclose Confidential Information pursuant to any\napplicable law or court order, I will provide the Company with prior written notice of the requirement for disclosure that details the Confidential\nInformation to be disclosed and will cooperate with the Company to preserve the confidentiality of such information to the extent possible.\n2. Common Law of Torts or Trade Secrets. In addition to the Company’s rights and my duties as specifically set out in this Agreement, the\nCompany will retain all such rights, and I will be bound by all such duties, to protect the Company’s Confidential Information, as are or may be\nprovided under the law, including without limitation the Wisconsin Trade Secrets Act (Wis. Stat. §134.90). Nothing herein will diminish the\nCompany’s common law and statutory rights to:\n(a) keep such information secret for as long as the law allows;\n(b) protect such information from disclosure to any third party, wherever located;\n(c) protect such information from use by any person, including me, not authorized by the Company; and\n(d) seek any remedies and take any measures necessary to protect the Company’s Confidential Information.\n3. Inventions and Patents.\n(a) I acknowledge that all Work Product is the exclusive property of the Company. I hereby assign all right, title and interest in and to all\nWork Product to the Company. Any copyrightable works that fall within Work Product will be deemed “works made for hire” under Section 201(b)\nof the 1976 Copyright Act, and the Company shall own all of the rights comprised in the copyright therein; provided, however, that to the extent\nsuch works may not, by operation of law, constitute “works made for hire,” I hereby assign to the Company all right, title and interest therein.\n(b) I will promptly and fully disclose all Work Product to the Company and will cooperate and perform at the expense of the Company\nall actions reasonably requested by the Company (whether during or after my service as a director of the Company) to establish, confirm and protect\nthe Company’s right, title and interest in such Work Product. Without limiting the generality of the foregoing, I agree to assist the Company, at the\nCompany’s expense, to secure its rights in the Work Product in any and all countries, including the execution of all applications and all other\ninstruments and documents which the Company shall deem necessary in order to apply for and obtain rights in such Work Product and in order to\nassign and convey to the Company the sole and exclusive right, title and interest in and to such Work Product. If the Company is unable because of\nmy mental or physical incapacity or for any other reason (including my refusal to do so after request therefor is made by the Company) to secure my\nsignature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering Work Product\nbelonging to or assigned to the Company pursuant to Section 3(a) above, then I hereby irrevocably designate and appoint Roundy’s and each of its\nduly authorized officers and agents as my agent and attorney-in-fact to act for and in my behalf and stead to execute and file any such applications\nand to do all other lawfully permitted acts to further the prosecution and issuance of patents or copyright registrations thereon with the same legal\nforce and effect as if executed by me. I agree not to apply for or pursue any application for any United States or foreign patents or copyright\nregistrations covering any Work Product other than pursuant to this paragraph in circumstances where such patents or copyright registrations are or\nhave been or are required to be assigned to the Company.\n4. Non-Competition; Non-Solicitation; Non-Interference.\n \n(a) I agree that, except with regards to my service as a director for Tops Holding Corporation and a director for PetSmart, Inc., during my\nservice as a director of the Company, I will not directly or indirectly own any interest in, manage, control, participate in (whether as an officer,\ndirector, employee, partner, agent, representative or otherwise), consult with, render services for, or in any other manner engage in any business\nwhich is, directly or indirectly, engaged in any business in which the Company engages or proposes to engage during the period of my service as a\ndirector of the Company.\n(b) Nothing herein shall prohibit me from being a passive owner of not more than 2% of the outstanding securities of any class of a\ncorporation which is publicly traded, so long as I have no active participation in the business of any such corporation.\n(c) During my service as a director of the Company and throughout the Nonsolicitation Period, I will not directly or indirectly (including\nthrough another person) solicit or attempt to solicit, induce or attempt to induce any employee, consultant, agent, independent contractor or any other\nperson otherwise engaged in a services or business relationship (including, without limitation, any customer, supplier, licensee or licensor) with the\nCompany to leave the employ of or terminate or otherwise adversely alter such person’s relationship with the Company, or in any way interfere with\nthe relationship between the Company and any such person; provided, however, I will not be prohibited from engaging the services of any such\nperson who is also engaged by the Company (other than any employee of the Company, or any consultant or agent providing services substantially\non a full-time basis to the Company relating primarily to the Food Industries, as that term is defined below) so long as any such engagement would\nnot otherwise constitute a breach of this Section 4(d).\n(d) During the Nonsolicitation Period, I will not directly or indirectly (including through another person) hire or otherwise engage the\nservices of any person who was an employee of the Company at any time during the ninety (90) day period immediately preceding the termination of\nmy directorship with the Company.\n(e) During my service as a director of the Company and throughout the Nonsolicitation Period, I will not directly or indirectly (including\nthrough another person) acquire or attempt to acquire any business in the United States of America to which the Company or any of its shareholders\nor investors has made any proposal during the Reference Period relating to the possible acquisition of such business by the Company or any of its\nshareholders or investors (an “Acquisition Target”), or take any action to induce or attempt to induce any Acquisition Target to consummate any\nacquisition, investment or other similar transaction with any person other than the Company or any of its shareholders or investors.\n(f) If, at the time of enforcement of any covenant or agreement contained in Section 1, 2, 4(a), 4(c) or 4(d) of this Agreement, a court\nholds that the duration, scope, or area restrictions stated herein are unreasonable under circumstances then existing, I agree that the maximum period,\nscope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court will be\nallowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. Because my services\nare unique and because I have access to Confidential Information and Work Product, I agree that monetary damages would not be an adequate\nremedy for any breach of this Agreement. Therefore, in the event a breach or threatened breach of this Agreement, the Company or its successors or\nassigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance\nand/or injunctive or similar relief in order to enforce, or prevent any violations of, the provisions hereof. In addition, in the event of a breach or\nviolation by me of any covenant or agreement in Section 4(a), 4(b), 4(d) or 4(e), the Noncompete Period set forth in such Section with respect to\nsuch covenant or agreement shall be tolled until such breach or violation has been duly cured.\n5. Definitions.\n“Active Targets” means a company or a division of a company in the Food Industries which, during the Reference Period, the Company has\nspent a significant amount of time investigating as a possible investment or acquisition candidate.\n4\n“Affiliate” of a person means any other person or investment fund controlling, controlled by or under common control with the person and, in\nthe case of a person which is a partnership, any partner of the person.\n“Food Industries” means the retail grocery industry.\n“Geographic Area” means the States of Illinois, Minnesota, Wisconsin, any other state in which the Company or any of its Subsidiaries\nconduct significant business after the date hereof, and any other state in which an Active Target is located.\n“Nonsolicitation Period” means the one (1) year period following the Termination Date.\n“Reference Period” means the one (1) year period immediately preceding the Termination Date.\n“Subsidiary” means, with respect to any person, any corporation, limited liability company, partnership, association or business entity of which\n(i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in\nthe election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that person or one or more of the\nother Subsidiaries of that person or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity\n(other than a corporation), a majority of partnership or other similar ownership interest thereof is at the time owned or controlled, directly or\nindirectly, by any person or one or more Subsidiaries of that person or a combination thereof. For purposes hereof, a person or persons shall be\ndeemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity (other than a\ncorporation) if such person or persons shall be allocated a majority of limited liability company, partnership, association or other business entity\ngains or losses or shall be or control any managing director or general partner of such limited liability company, partnership, association or other\nbusiness entity.\n“Termination Date” means the date on which my directorship with Roundy’s terminates, regardless of the reason for that termination.\n“Work Product” means all inventions, innovations, improvements, developments, methods, processes, designs, analyses, drawings, reports and\nall similar or related information (whether or not patentable or reduced to practice or comprising Confidential Information) and any copyrightable\nwork, trade mark, trade secret or other intellectual property rights (whether or not comprising Confidential Information) and any other form of\nConfidential Information, any of which relate to the Company’s actual or anticipated business, research and development or existing or future\nproducts or services and which were or are conceived, reduced to practice, contributed to, developed, made or acquired by me (whether alone or\njointly with others) while serving as a director (both before and after the date hereof) of Roundy’s (or its predecessors, successors or assigns).\n6. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, mailed by first class mail\n(postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the recipients at the address\nindicated below:\nIf to me:\nIf to the Company: Roundy’s, Inc.\n875 East Wisconsin Avenue\nMilwaukee, WI 53202\nAttn: Darren W. Karst\nor to such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been duly given or made as follows: (a) if sent by registered or certified mail in the United\nStates, return receipt requested, upon actual receipt; (b) if sent by reputable overnight air courier (such as DHL or Federal Express), two business\ndays after being so sent; (c) if sent by telecopy or facsimile transmission (and receipt is confirmed), when transmitted at or before 5:00 p.m. local\ntime at the location of receipt on a business day, and if received after 5:00 p.m. or on a day other than a business day, on the next following business\nday, but only if also sent by reputable overnight air courier within one business day following transmission; or (d) if otherwise actually personally\ndelivered, when so delivered.\n7. General Provisions.\n(a) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or\nrule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Agreement\nshall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.\nThe parties specifically acknowledge and agree that each covenant and agreement contained in Section 1, 2, 3, 4(a), 4(b), 4(d) or 4(e) of this\nAgreement is separate and independent.\n(b) Complete Agreement. This Agreement, together with the Restricted Stock, and those other documents expressly referred to herein\nand other documents of even date herewith embody the complete agreement and understanding among the parties and supersede and preempt any\nprior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in\nany way.\n(c) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(d) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and its successors and assigns.\n(e) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin\nwithout giving effect to any choice of law or conflict of law provision or rule (whether of the State of Wisconsin or any other jurisdiction)\nthat would cause the application of the law of any jurisdiction other than the State of Wisconsin.\n6\n(f) Remedies. The Company shall be entitled to enforce its rights under this Agreement specifically, to recover damages and costs\n(including reasonable attorney’s fees) caused by any breach of any provision of this Agreement and to exercise all other rights existing in its favor. I\nagree and acknowledge that money damages would not be an adequate remedy for any breach of the provisions of this Agreement and that the\nCompany may in its sole discretion apply to any court of law or equity of competent jurisdiction (without posting any bond or deposit) for specific\nperformance and/or other injunctive relief in order to enforce or prevent any violations of the provisions of this Agreement.\n(g) Survival. The provisions of this Agreement shall survive and continue in full force and effect in accordance with their terms\nnotwithstanding any termination of my service as a director of the Company, regardless of the reason for that termination.\n(h) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and me.\n(i) Advice of Counsel. I acknowledge that I have been encouraged by the Company to obtain independent legal advice and counsel prior\nto entering into this Agreement, that I have obtained such independent advice and counsel, and that I understand fully all the terms and provisions\ncontained in this Agreement.\n(j) Other Laws. Nothing in this Agreement shall be construed to limit or negate any common or statutory law, including, without\nlimitation, any laws of fiduciary duties, torts or trade secrets, where it provides the parties hereunder with broader protection than that provided\nherein.\n(1) Waiver of Jury Trial. I HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE\nANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR\nOTHERWISE) BETWEEN OR AMONG ANY OF THE PARTIES ARISING OUT OF OR IN ANY WAY RELATED TO THIS\nAGREEMENT.\nIN WITNESS WHEREOF, I have executed this Director Confidentiality and Non-Competition Agreement on the date first written above.\nDIRECTOR:	EX-10.13 4 d324821dex1013.htn FORM OF DIRECTOR CONFIDENTIALITY AND NON-COMPETITION\nAGREEMENT\nExhibit 10.13\nROUNDY'S, INC.\nDIRECTOR CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Director Confidentiality and Non-Competition Agreement (this "Agreement") is entered into as of the\nday of\n201 by\nthe undersigned for the benefit of Roundy's, Inc. ("Roundy's") and its current and future Subsidiaries and Affiliates (as hereinafter defined).\nRoundy's and its Subsidiaries and Affiliates are referred to herein collectively as the "Company."\nPREAMBLE:\nI am a director of the Company. I understand that in the course of my service to the Company, I will have access to and become acquainted\nwith a great deal of confidential, proprietary information concerning the Company's business, products, services, customers, sales and marketing\nefforts\nand practices financial information, market strategies, corporate strategies, capital structure, ownership, and other valuable proprietary\ninformation. Some or all of such information may constitute "trade secrets" of the Company within the meaning of the Wisconsin Trade Secrets Act,\nWis. Stat. 8134.90.\nI understand that such information is the exclusive property of the Company, and its disclosure to third persons could have a significant\nadverse effect on the Company's competitive position and business. Further, my use of such knowledge and information, and of the experience I\nhave and will gain in the course of my service to the Company, in a manner competitive with the Company's business would have a substantial\ndetrimental effect on the business and the value of the Company. The Company therefore wishes to maintain the strictest confidentiality of all such\ninformation and to take all reasonable steps to prevent its unauthorized dissemination or its use in a manner competitive with the Company's\nbusiness, and to prohibit me from competing with the Company during the time I am serving as a director of the Company.\nThe Company has offered to grant me Restricted Stock pursuant to the Company's parent corporation, Roundy's, Inc. (the "Restricted Stock").\nI\nunderstand that the Company's willingness to grant the Restricted Stock is in consideration, in part, of my entering into this Agreement.\nAGREEMENT:\nTherefore, in consideration of these circumstances, my continued directorship with the Company, and Company's granting me the Restricted\nStock, I agree as follows:\n1. Confidential Information.\n(a) I acknowledge that by reason of my duties to and association with the Company, I have had and will have access to and have and will\nbecome informed of Confidential Information. For purposes of this Agreement, "Confidential Information" means all information of a confidential\nor proprietary nature (whether or not specifically labeled or identified as "confidential"), in any form or medium, that is or was disclosed to, or\ndeveloped or learned by, me in connection with my relationship with the Company or any of its stockholders or investors prior to the date hereof or\nduring the continuation of my serving as a director of the Company, and that relates to the actual or anticipated business, products, services,\nfinancing, research or development of the Company or any of its stockholders or investors or their respective suppliers, distributors or customers.\nConfidential Information includes, but is not limited to, the following: (i) internal business information (including information relating to strategic\nand staffing plans and practices, business, training, marketing, promotional and sales plans and practices, cost, rate and pricing structures, accounting\nand business methods); (ii) identities of, individual requirements of, specific contractual arrangements with, information about and confidential\nand\nproprietary information of any of the Company's suppliers, distributors and customers; (iii) trade secrets, compilations of data and analyses,\ntechniques, systems, formulae, research, records, reports, manuals, documentation, models, data and data bases relating thereto; (iv) inventions,\ninnovations, improvements, developments, methods, designs, analyses, drawings, reports and all similar or related information (whether or not\npatentable); and (v) Acquisition Targets and Active Targets (as defined below). Confidential Information shall not include information that (a) is or\nbecomes publicly known through no wrongful act or breach of obligation of confidentiality; (b) was rightfully received by me from a third party\n(other than the Company or any of the Company's suppliers, distributors or customers) without a breach of any obligation of confidentiality by such\nthird party known to me or (c) was known to me prior to the beginning of my service as a director of the Company.\n(b) During the term of my service as a director of the Company, I agree to keep in strict confidence and not, directly or indirectly, make\nknown, disclose, furnish, make available or use any Confidential Information except for use in my regular authorized duties on behalf of the\nCompany. Following the termination (for any reason whatsoever) of directorship with the Company, I agree to keep in strict confidence and not,\ndirectly or indirectly, make known, disclose, furnish, make available or use any Confidential Information in the Geographic Area (as defined below).\nI acknowledge and agree that all documents and other property including or reflecting Confidential Information furnished to me by the Company\nor\nany of its shareholders, or investors or otherwise acquired or developed by me or known by me shall at all times be the sole and exclusive property\nof the Company. During my service as a director of the Company and thereafter, I will take all necessary and appropriate steps to safeguard\nConfidential Information and protect it against disclosure, misappropriation, misuse, loss and theft. I will deliver to the Company at the termination\nof my directorship, or at any other time the Company may request, all memoranda, notes, plans, records, reports, computer disks or tapes, printouts\nand software and other documents and data (and copies thereof) relating to or containing any Confidential Information, Work Product (as defined\nbelow) or the business of the Company or any of its shareholders or investors which I may then possess or have under my control and shall erase all\nembodiments of the Confidential Information from all storage devices. If I am required to disclose Confidential Information pursuant to any\napplicable law or court order, I will provide the Company with prior written notice of the requirement for disclosure that details the Confidential\nInformation to be disclosed and will cooperate with the Company to preserve the confidentiality of such information to the extent possible.\n2. Common Law of Torts or Trade Secrets. In addition to the Company's rights and my duties as specifically set out in this Agreement, the\nCompany will retain all such rights, and I will be bound by all such duties, to protect the Company's Confidential Information, as are or may be\nprovided under the law, including without limitation the Wisconsin Trade Secrets Act (Wis. Stat. 8134.90). Nothing herein will diminish the\nCompany's common law and statutory rights to:\n2\n(a) keep such information secret for as long as the law allows;\n(b) protect such information from disclosure to any third party, wherever located;\n(c) protect such information from use by any person, including me, not authorized by the Company; and\n(d) seek any remedies and take any measures necessary to protect the Company's Confidential Information.\n3. Inventions and Patents.\n(a) I acknowledge that all Work Product is the exclusive property of the Company. I hereby assign all right, title and interest in and to\nall\nWork Product to the Company. Any copyrightable works that fall within Work Product will be deemed "works made for hire" under Section 201(b)\nof the 1976 Copyright Act, and the Company shall own all of the rights comprised in the copyright therein; provided, however, that to the extent\nsuch works may not, by operation of law, constitute "works made for hire," I hereby assign to the Company all right, title and interest therein.\n(b) I will promptly and fully disclose all Work Product to the Company and will cooperate and perform at the expense of the Company\nall\nactions reasonably requested by the Company (whether during or after my service as a director of the Company) to establish, confirm and protect\nthe Company's right, title and interest in such Work Product. Without limiting the generality of the foregoing, I agree to assist the Company, at\nthe\nCompany's expense, to secure its rights in the Work Product in any and all countries, including the execution of all applications and all other\ninstruments and documents which the Company shall deem necessary in order to apply for and obtain rights in such Work Product and in order to\nassign and convey to the Company the sole and exclusive right, title and interest in and to such Work Product. If the Company is unable because of\nmy mental or physical incapacity or for any other reason (including my refusal to do so after request therefor is made by the Company) to secure my\nsignature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering Work Product\nbelonging to or assigned to the Company pursuant to Section 3(a) above, then I hereby irrevocably designate and appoint Roundy's and each\nof\nits\nduly authorized officers and agents as my agent and attorney-in-fact to act for and in my behalf and stead to execute and file any such applications\nand to do all other lawfully permitted acts to further the prosecution and issuance of patents or copyright registrations thereon with the same legal\nforce and effect as if executed by me. I agree not to apply for or pursue any application for any United States or foreign patents or copyright\nregistrations covering any Work Product other than pursuant to this paragraph in circumstances where such patents or copyright registrations are or\nhave been or are required to be assigned to the Company.\n4. Non-Competition; Non-Solicitation; Non-Interference.\n(a) I agree that, except with regards to my service as a director for Tops Holding Corporation and a director for PetSmart, Inc., during my\nservice as a director of the Company, I will not directly or indirectly own any interest in, manage, control, participate in (whether as an officer,\ndirector, employee, partner, agent, representative or otherwise), consult with, render services for, or in any other manner engage in any business\nwhich is, directly or indirectly, engaged in any business in which the Company engages or proposes to engage during the period of my service as a\ndirector of the Company.\n3\n(b) Nothing herein shall prohibit me from being a passive owner of not more than 2% of the outstanding securities of any class of a\ncorporation which is publicly traded, so long as I have no active participation in the business of any such corporation.\n(c) During my service as a director of the Company and throughout the Nonsolicitation Period, I will not directly or indirectly (including\nthrough another person) solicit or attempt to solicit, induce or attempt to induce any employee, consultant, agent, independent contractor or any other\nperson otherwise engaged in a services or business relationship (including, without limitation, any customer, supplier, licensee or licensor) with the\nCompany to leave the employ of or terminate or otherwise adversely alter such person's relationship with the Company, or in any way interfere with\nthe relationship between the Company and any such person; provided, however, I will not be prohibited from engaging the services of any such\nperson who is also engaged by the Company (other than any employee of the Company, or any consultant or agent providing services substantially\non a full-time basis to the Company relating primarily to the Food Industries, as that term is defined below) so long as any such engagement would\nnot otherwise constitute a breach of this Section 4(d).\n(d) During the Nonsolicitation Period, I will not directly or indirectly (including through another person) hire or otherwise engage the\nservices of any person who was an employee of the Company at any time during the ninety (90) day period immediately preceding the termination of\nmy directorship with the Company.\n(e) During my service as a director of the Company and throughout the Nonsolicitation Period, I will not directly or indirectly (including\nthrough another person) acquire or attempt to acquire any business in the United States of America to which the Company or any of its shareholders\nor\ninvestors has made any proposal during the Reference Period relating to the possible acquisition of such business by the Company or any of\nits\nshareholders or investors (an "Acquisition Target"), or take any action to induce or attempt to induce any Acquisition Target to consummate any\nacquisition, investment or other similar transaction with any person other than the Company or any of its shareholders or investors.\n(f) If, at the time of enforcement of any covenant or agreement contained in Section 1, 2, 4(a), 4(c) or 4(d) of this Agreement, a court\nholds that the duration, scope, or area restrictions stated herein are unreasonable under circumstances then existing, I agree that the maximum period,\nscope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court will be\nallowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. Because my services\nare unique and because I have access to Confidential Information and Work Product, I agree that monetary damages would not be an adequate\nremedy for any breach of this Agreement. Therefore, in the event a breach or threatened breach of this Agreement, the Company or its successors or\nassigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance\nand/or injunctive or similar relief in order to enforce, or prevent any violations of, the provisions hereof. In addition, in the event of a breach or\nviolation by me of any covenant or agreement in Section 4(a), 4(b), 4(d) or 4(e), the Noncompete Period set forth in such Section with respect to\nsuch covenant or agreement shall be tolled until such breach or violation has been duly cured.\n5. Definitions.\n"Active Targets" means a company or a division of a company in the Food Industries which, during the Reference Period, the Company has\nspent a significant amount of time investigating as a possible investment or acquisition candidate.\n4\n"Affiliate" of a person means any other person or investment fund controlling, controlled by or under common control with the person and,\nin\nthe case of a person which is a partnership, any partner of the person.\n"Food Industries" means the retail grocery industry.\n"Geographic Area" means the States of Illinois, Minnesota, Wisconsin, any other state in which the Company or any of its Subsidiaries\nconduct significant business after the date hereof, and any other state in which an Active Target is located.\n"Nonsolicitation Period" means the one (1) year period following the Termination Date.\n"Reference Period" means the one (1) year period immediately preceding the Termination Date.\n"Subsidiary" means, with respect to any person, any corporation, limited liability company, partnership, association or business entity of which\n(i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in\nthe election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that person or one or more of the\nother Subsidiaries of that person or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity\n(other than a corporation), a majority of partnership or other similar ownership interest thereof is at the time owned or controlled, directly or\nindirectly, by any person or one or more Subsidiaries of that person or a combination thereof. For purposes hereof, a person or persons shall be\ndeemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity (other than\na\ncorporation) if such person or persons shall be allocated a majority of limited liability company, partnership, association or other business entity\ngains or losses or shall be or control any managing director or general partner of such limited liability company, partnership, association or other\nbusiness entity.\n"Termination Date" means the date on which my directorship with Roundy's terminates, regardless of the reason for that termination.\n"Work Product" means all inventions, innovations, improvements, developments, methods, processes, designs, analyses, drawings, reports and\nall similar or related information (whether or not patentable or reduced to practice or comprising Confidential Information) and any copyrightable\nwork, trade mark, trade secret or other intellectual property rights (whether or not comprising Confidential Information) and any other form of\nConfidential Information, any of which relate to the Company's actual or anticipated business, research and development or existing or future\nproducts or services and which were or are conceived, reduced to practice, contributed to, developed, made or acquired by me (whether alone or\njointly with others) while serving as a director (both before and after the date hereof) of Roundy's (or its predecessors, successors or assigns).\n6. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, mailed by first class mail\n(postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the recipients at the address\nindicated below:\nIf to me:\n5\nIf to the Company:\nRoundy's, Inc.\n875 East Wisconsin Avenue\nMilwaukee, WI 53202\nAttn: Darren W. Karst\nor to such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been duly given or made as follows: (a) if sent by registered or certified mail in the United\nStates, return receipt requested, upon actual receipt; (b) if sent by reputable overnight air courier (such as DHL or Federal Express), two business\ndays after being so sent; (c) if sent by telecopy or facsimile transmission (and receipt is confirmed), when transmitted at or before 5:00 p.m. local\ntime at the location of receipt on a business day, and if received after 5:00 p.m. or on a day other than a business day, on the next following business\nday, but only if also sent by reputable overnight air courier within one business day following transmission; or (d) if otherwise actually personally\ndelivered, when so delivered.\n7. General Provisions.\n(a) Severability.. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law\nor\nrule\nin\nany\njurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Agreement\nshall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.\nThe parties specifically acknowledge and agree that each covenant and agreement contained in Section 1, 2, 3, 4(a), 4(b), 4(d) or 4(e) of this\nAgreement is separate and independent.\n(b) Complete Agreement. This Agreement, together with the Restricted Stock, and those other documents expressly referred to herein\nand other documents of even date herewith embody the complete agreement and understanding among the parties and supersede and preempt any\nprior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in\nany way.\n(c) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(d) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and\nbe\nenforceable by the Company and its successors and assigns.\n(e) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin\nwithout giving effect to any choice of law or conflict of law provision or rule (whether of the State of Wisconsin or any other jurisdiction)\nthat would cause the application of the law of any jurisdiction other than the State of Wisconsin.\n6\n(f) Remedies. The Company shall be entitled to enforce its rights under this Agreement specifically, to recover damages and costs\n(including reasonable attorney's fees) caused by any breach of any provision of this Agreement and to exercise all other rights existing in its favor. I\nagree and acknowledge that money damages would not be an adequate remedy for any breach of the provisions of this Agreement and that the\nCompany may in its sole discretion apply to any court of law or equity of competent jurisdiction (without posting any bond or deposit) for specific\nperformance and/or other injunctive relief in order to enforce or prevent any violations of the provisions of this Agreement.\n(g) Survival. The provisions of this Agreement shall survive and continue in full force and effect in accordance with their terms\nnotwithstanding any termination of my service as a director of the Company, regardless of the reason for that termination.\n(h) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and me.\n(i) Advice of Counsel. I acknowledge that I have been encouraged by the Company to obtain independent legal advice and counsel prior\nto entering into this Agreement, that I have obtained such independent advice and counsel, and that I understand fully all the terms and provisions\ncontained in this Agreement.\n(j) Other Laws. Nothing in this Agreement shall be construed to limit or negate any common or statutory law, including, without\nlimitation, any laws of fiduciary duties, torts or trade secrets, where it provides the parties hereunder with broader protection than that provided\nherein.\n(1) Waiver of Jury Trial. I HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE\nANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR\nOTHERWISE) BETWEEN OR AMONG ANY OF THE PARTIES ARISING OUT OF OR IN ANY WAY RELATED TO THIS\nAGREEMENT.\nIN WITNESS WHEREOF, I have executed this Director Confidentiality and Non-Competition Agreement on the date first written above.\nDIRECTOR:\n7	EX-10.13 4 d324821dex1013.htm FORM OF DIRECTOR CONFIDENTIALITY AND NON-COMPETITION\nAGREEMENT\nExhibit 10.13\nROUNDY’S, INC.\nDIRECTOR CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Director Confidentiality and Non-Competition Agreement (this “Agreement”) is entered into as of the\nday of\n, 201 ,by\nthe undersigned for the benefit of Roundy’s, Inc. (“Roundy’s”) and its current and future Subsidiaries and Affiliates (as hereinafter defined).\nRoundy’s and its Subsidiaries and Affiliates are referred to herein collectively as the “Company.”\nPREAMBLE:\nI am a director of the Company. I understand that in the course of my service to the Company, I will have access to and become acquainted\nwith a great deal of confidential, proprietary information concerning the Company's business, products, services, customers, sales and marketing\nefforts and practices, financial information, market strategies, corporate strategies, capital structure, ownership, and other valuable proprietary\ninformation. Some or all of such information may constitute "trade secrets" of the Company within the meaning of the Wisconsin Trade Secrets Act,\nWis. Stat. §134.90.\nI understand that such information is the exclusive property of the Company, and its disclosure to third persons could have a significant\nadverse effect on the Company's competitive position and business. Further, my use of such knowledge and information, and of the experience I\nhave and will gain in the course of my service to the Company, in a manner competitive with the Company's business would have a substantial\ndetrimental effect on the business and the value of the Company. The Company therefore wishes to maintain the strictest confidentiality of all such\ninformation and to take all reasonable steps to prevent its unauthorized dissemination or its use in a manner competitive with the Company's\nbusiness, and to prohibit me from competing with the Company during the time I am serving as a director of the Company.\nThe Company has offered to grant me Restricted Stock pursuant to the Company’s parent corporation, Roundy’s, Inc. (the “Restricted Stock”).\nI understand that the Company’s willingness to grant the Restricted Stock is in consideration, in part, of my entering into this Agreement.\nAGREEMENT:\nTherefore, in consideration of these circumstances, my continued directorship with the Company, and Company’s granting me the Restricted\nStock, I agree as follows:\n1. Confidential Information.\n(a) I acknowledge that by reason of my duties to and association with the Company, I have had and will have access to and have and will\nbecome informed of Confidential Information. For purposes of this Agreement, “Confidential Information” means all information of a confidential\nor proprietary nature (whether or not specifically labeled or identified as “confidential”), in any form or medium, that is or was disclosed to, or\ndeveloped or learned by, me in connection with my relationship with the Company or any of its stockholders or investors prior to the date hereof or\nduring the continuation of my serving as a director of the Company, and that relates to the actual or anticipated business, products, services,\nfinancing, research or development of the Company or any of its stockholders or investors or their respective suppliers, distributors or customers.\nConfidential Information includes, but is not limited to, the following: (i) internal business information (including information relating to strategic\nand staffing plans and practices, business, training, marketing, promotional and sales plans and practices, cost, rate and pricing structures, accounting\nand business methods); (ii) identities of, individual requirements of, specific contractual arrangements with, information about and confidential and\nproprietary information of any of the Company’s suppliers, distributors and customers; (iii) trade secrets, compilations of data and analyses,\ntechniques, systems, formulae, research, records, reports, manuals, documentation, models, data and data bases relating thereto; (iv) inventions,\ninnovations, improvements, developments, methods, designs, analyses, drawings, reports and all similar or related information (whether or not\npatentable); and (v) Acquisition Targets and Active Targets (as defined below). Confidential Information shall not include information that (a) is or\nbecomes publicly known through no wrongful act or breach of obligation of confidentiality; (b) was rightfully received by me from a third party\n(other than the Company or any of the Company’s suppliers, distributors or customers) without a breach of any obligation of confidentiality by such\nthird party known to me or (c) was known to me prior to the beginning of my service as a director of the Company.\n(b) During the term of my service as a director of the Company, I agree to keep in strict confidence and not, directly or indirectly, make\nknown, disclose, furnish, make available or use any Confidential Information, except for use in my regular authorized duties on behalf of the\nCompany. Following the termination (for any reason whatsoever) of directorship with the Company, I agree to keep in strict confidence and not,\ndirectly or indirectly, make known, disclose, furnish, make available or use any Confidential Information in the Geographic Area (as defined below).\nI acknowledge and agree that all documents and other property including or reflecting Confidential Information furnished to me by the Company or\nany of its shareholders, or investors or otherwise acquired or developed by me or known by me shall at all times be the sole and exclusive property\nof the Company. During my service as a director of the Company and thereafter, I will take all necessary and appropriate steps to safeguard\nConfidential Information and protect it against disclosure, misappropriation, misuse, loss and theft. I will deliver to the Company at the termination\nof my directorship, or at any other time the Company may request, all memoranda, notes, plans, records, reports, computer disks or tapes, printouts\nand software and other documents and data (and copies thereof) relating to or containing any Confidential Information, Work Product (as defined\nbelow) or the business of the Company or any of its shareholders or investors which I may then possess or have under my control and shall erase all\nembodiments of the Confidential Information from all storage devices. If I am required to disclose Confidential Information pursuant to any\napplicable law or court order, I will provide the Company with prior written notice of the requirement for disclosure that details the Confidential\nInformation to be disclosed and will cooperate with the Company to preserve the confidentiality of such information to the extent possible.\n2. Common Law of Torts or Trade Secrets. In addition to the Company’s rights and my duties as specifically set out in this Agreement, the\nCompany will retain all such rights, and I will be bound by all such duties, to protect the Company’s Confidential Information, as are or may be\nprovided under the law, including without limitation the Wisconsin Trade Secrets Act (Wis. Stat. §134.90). Nothing herein will diminish the\nCompany’s common law and statutory rights to:\n2\n(a) keep such information secret for as long as the law allows;\n(b) protect such information from disclosure to any third party, wherever located;\n(c) protect such information from use by any person, including me, not authorized by the Company; and\n(d) seek any remedies and take any measures necessary to protect the Company’s Confidential Information.\n3. Inventions and Patents.\n(a) I acknowledge that all Work Product is the exclusive property of the Company. I hereby assign all right, title and interest in and to all\nWork Product to the Company. Any copyrightable works that fall within Work Product will be deemed “works made for hire” under Section 201(b)\nof the 1976 Copyright Act, and the Company shall own all of the rights comprised in the copyright therein; provided, however, that to the extent\nsuch works may not, by operation of law, constitute “works made for hire,” I hereby assign to the Company all right, title and interest therein.\n(b) I will promptly and fully disclose all Work Product to the Company and will cooperate and perform at the expense of the Company\nall actions reasonably requested by the Company (whether during or after my service as a director of the Company) to establish, confirm and protect\nthe Company’s right, title and interest in such Work Product. Without limiting the generality of the foregoing, I agree to assist the Company, at the\nCompany’s expense, to secure its rights in the Work Product in any and all countries, including the execution of all applications and all other\ninstruments and documents which the Company shall deem necessary in order to apply for and obtain rights in such Work Product and in order to\nassign and convey to the Company the sole and exclusive right, title and interest in and to such Work Product. If the Company is unable because of\nmy mental or physical incapacity or for any other reason (including my refusal to do so after request therefor is made by the Company) to secure my\nsignature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering Work Product\nbelonging to or assigned to the Company pursuant to Section 3(a) above, then I hereby irrevocably designate and appoint Roundy’s and each of its\nduly authorized officers and agents as my agent and attorney-in-fact to act for and in my behalf and stead to execute and file any such applications\nand to do all other lawfully permitted acts to further the prosecution and issuance of patents or copyright registrations thereon with the same legal\nforce and effect as if executed by me. I agree not to apply for or pursue any application for any United States or foreign patents or copyright\nregistrations covering any Work Product other than pursuant to this paragraph in circumstances where such patents or copyright registrations are or\nhave been or are required to be assigned to the Company.\n4. Non-Competition; Non-Solicitation; Non-Interference.\n(a) I agree that, except with regards to my service as a director for Tops Holding Corporation and a director for PetSmart, Inc., during my\nservice as a director of the Company, I will not directly or indirectly own any interest in, manage, control, participate in (whether as an officer,\ndirector, employee, partner, agent, representative or otherwise), consult with, render services for, or in any other manner engage in any business\nwhich is, directly or indirectly, engaged in any business in which the Company engages or proposes to engage during the period of my service as a\ndirector of the Company.\n3\n(b) Nothing herein shall prohibit me from being a passive owner of not more than 2% of the outstanding securities of any class of a\ncorporation which is publicly traded, so long as I have no active participation in the business of any such corporation.\n(c) During my service as a director of the Company and throughout the Nonsolicitation Period, I will not directly or indirectly (including\nthrough another person) solicit or attempt to solicit, induce or attempt to induce any employee, consultant, agent, independent contractor or any other\nperson otherwise engaged in a services or business relationship (including, without limitation, any customer, supplier, licensee or licensor) with the\nCompany to leave the employ of or terminate or otherwise adversely alter such person’s relationship with the Company, or in any way interfere with\nthe relationship between the Company and any such person; provided, however, I will not be prohibited from engaging the services of any such\nperson who is also engaged by the Company (other than any employee of the Company, or any consultant or agent providing services substantially\non a full-time basis to the Company relating primarily to the Food Industries, as that term is defined below) so long as any such engagement would\nnot otherwise constitute a breach of this Section 4(d).\n(d) During the Nonsolicitation Period, I will not directly or indirectly (including through another person) hire or otherwise engage the\nservices of any person who was an employee of the Company at any time during the ninety (90) day period immediately preceding the termination of\nmy directorship with the Company.\n(e) During my service as a director of the Company and throughout the Nonsolicitation Period, I will not directly or indirectly (including\nthrough another person) acquire or attempt to acquire any business in the United States of America to which the Company or any of its shareholders\nor investors has made any proposal during the Reference Period relating to the possible acquisition of such business by the Company or any of its\nshareholders or investors (an “Acquisition Target”), or take any action to induce or attempt to induce any Acquisition Target to consummate any\nacquisition, investment or other similar transaction with any person other than the Company or any of its shareholders or investors.\n(f) If, at the time of enforcement of any covenant or agreement contained in Section 1, 2, 4(a), 4(c) or 4(d) of this Agreement, a court\nholds that the duration, scope, or area restrictions stated herein are unreasonable under circumstances then existing, I agree that the maximum period,\nscope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area and that the court will be\nallowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. Because my services\nare unique and because I have access to Confidential Information and Work Product, I agree that monetary damages would not be an adequate\nremedy for any breach of this Agreement. Therefore, in the event a breach or threatened breach of this Agreement, the Company or its successors or\nassigns may, in addition to other rights and remedies existing in their favor, apply to any court of competent jurisdiction for specific performance\nand/or injunctive or similar relief in order to enforce, or prevent any violations of, the provisions hereof. In addition, in the event of a breach or\nviolation by me of any covenant or agreement in Section 4(a), 4(b), 4(d) or 4(e), the Noncompete Period set forth in such Section with respect to\nsuch covenant or agreement shall be tolled until such breach or violation has been duly cured.\n5. Definitions.\n“Active Targets” means a company or a division of a company in the Food Industries which, during the Reference Period, the Company has\nspent a significant amount of time investigating as a possible investment or acquisition candidate.\n4\n“Affiliate” of a person means any other person or investment fund controlling, controlled by or under common control with the person and, in\nthe case of a person which is a partnership, any partner of the person.\n“Food Industries” means the retail grocery industry.\n“Geographic Area” means the States of Illinois, Minnesota, Wisconsin, any other state in which the Company or any of its Subsidiaries\nconduct significant business after the date hereof, and any other state in which an Active Target is located.\n“Nonsolicitation Period” means the one (1) year period following the Termination Date.\n“Reference Period” means the one (1) year period immediately preceding the Termination Date.\n“Subsidiary” means, with respect to any person, any corporation, limited liability company, partnership, association or business entity of which\n(i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in\nthe election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that person or one or more of the\nother Subsidiaries of that person or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity\n(other than a corporation), a majority of partnership or other similar ownership interest thereof is at the time owned or controlled, directly or\nindirectly, by any person or one or more Subsidiaries of that person or a combination thereof. For purposes hereof, a person or persons shall be\ndeemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity (other than a\ncorporation) if such person or persons shall be allocated a majority of limited liability company, partnership, association or other business entity\ngains or losses or shall be or control any managing director or general partner of such limited liability company, partnership, association or other\nbusiness entity.\n“Termination Date” means the date on which my directorship with Roundy’s terminates, regardless of the reason for that termination.\n“Work Product” means all inventions, innovations, improvements, developments, methods, processes, designs, analyses, drawings, reports and\nall similar or related information (whether or not patentable or reduced to practice or comprising Confidential Information) and any copyrightable\nwork, trade mark, trade secret or other intellectual property rights (whether or not comprising Confidential Information) and any other form of\nConfidential Information, any of which relate to the Company’s actual or anticipated business, research and development or existing or future\nproducts or services and which were or are conceived, reduced to practice, contributed to, developed, made or acquired by me (whether alone or\njointly with others) while serving as a director (both before and after the date hereof) of Roundy’s (or its predecessors, successors or assigns).\n6. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, mailed by first class mail\n(postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the recipients at the address\nindicated below:\nIf to me:\n5\nIf to the Company: Roundy’s, Inc.\n875 East Wisconsin Avenue\nMilwaukee, WI 53202\nAttn: Darren W. Karst\nor to such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been duly given or made as follows: (a) if sent by registered or certified mail in the United\nStates, return receipt requested, upon actual receipt; (b) if sent by reputable overnight air courier (such as DHL or Federal Express), two business\ndays after being so sent; (c) if sent by telecopy or facsimile transmission (and receipt is confirmed), when transmitted at or before 5:00 p.m . local\ntime at the location of receipt on a business day, and if received after 5:00 p.m . or on a day other than a business day, on the next following business\nday, but only if also sent by reputable overnight air courier within one business day following transmission; or (d) if otherwise actually personally\ndelivered, when so delivered.\n7. General Provisions.\n(a) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or\nrule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Agreement\nshall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.\nThe parties specifically acknowledge and agree that each covenant and agreement contained in Section 1, 2, 3, 4(a), 4(b), 4(d) or 4(e) of this\nAgreement is separate and independent.\n(b) Complete Agreement. This Agreement, together with the Restricted Stock, and those other documents expressly referred to herein\nand other documents of even date herewith embody the complete agreement and understanding among the parties and supersede and preempt any\nprior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in\nany way.\n(c) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(d) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and its successors and assigns.\n(e) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin\nwithout giving effect to any choice of law or conflict of law provision or rule (whether of the State of Wisconsin or any other jurisdiction)\nthat would cause the application of the law of any jurisdiction other than the State of Wisconsin.\n6\n(f) Remedies. The Company shall be entitled to enforce its rights under this Agreement specifically, to recover damages and costs\n(including reasonable attorney’s fees) caused by any breach of any provision of this Agreement and to exercise all other rights existing in its favor. I\nagree and acknowledge that money damages would not be an adequate remedy for any breach of the provisions of this Agreement and that the\nCompany may in its sole discretion apply to any court of law or equity of competent jurisdiction (without posting any bond or deposit) for specific\nperformance and/or other injunctive relief in order to enforce or prevent any violations of the provisions of this Agreement.\n(g) Survival. The provisions of this Agreement shall survive and continue in full force and effect in accordance with their terms\nnotwithstanding any termination of my service as a director of the Company, regardless of the reason for that termination.\n(h) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and me.\n(i) Advice of Counsel. I acknowledge that I have been encouraged by the Company to obtain independent legal advice and counsel prior\nto entering into this Agreement, that I have obtained such independent advice and counsel, and that I understand fully all the terms and provisions\ncontained in this Agreement.\n(j) Other Laws. Nothing in this Agreement shall be construed to limit or negate any common or statutory law, including, without\nlimitation, any laws of fiduciary duties, torts or trade secrets, where it provides the parties hereunder with broader protection than that provided\nherein.\n(l) Waiver of Jury Trial. I HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE\nANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR\nOTHERWISE) BETWEEN OR AMONG ANY OF THE PARTIES ARISING OUT OF OR IN ANY WAY RELATED TO THIS\nAGREEMENT.\nIN WITNESS WHEREOF, I have executed this Director Confidentiality and Non-Competition Agreement on the date first written above.\nDIRECTOR:\n7
+73bfeebfeca04b3a804d844cbf16d7f3.pdf	effective_date jurisdiction party term	ATTACHMENT D\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (“Agreement”) governs the disclosure of information by Papa Murphy’s International LLC\n(“Company”) to the person or entity listed as the Franchise Owner(s) on the signature block of this Agreement (“Recipient”) as of\n,20\n(“Effective Date”).\n1.\n“Confidential Information” means any and all technical and general information provided by Company to recipient, including but not limited\nto information relating to Company’s franchise system, underlying processes, recipes, mixes, techniques, know-how, ingredients, written\ndocumentation, operations manuals, methods of business, business plans, financial information, procurement requirements, purchasing,\nmanufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising,\nmarketing plans and information the Company provides regarding third parties.\n2. The Recipient agrees that it will hold in strict confidence and not disclose Confidential Information to any third party, except as approved in\nwriting by the Company, and will use the confidential information for no purpose other than evaluating or pursuing a business relationship\nwith the Company. The Recipient shall only permit access to Confidential Information to those of its employees or authorized representatives\nhaving a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as\nrestrictive as those contained herein.\n3. The Recipient shall immediately notify the Company in the event of any loss or unauthorized disclosure of any confidential information.\n4. The Recipient’s obligations under this Agreement do not apply to Confidential Information that: (a) was in the public domain before it was\ncommunicated to the Recipient through no fault of the Recipient; (b) entered the public domain after it was communicated to the Recipient\nthrough no fault of the Recipient; or (c) was in the Recipient’s possession free of any obligation of confidence at the time it was communicated\nto the Recipient.\n5. Upon completion of the evaluation by Recipient or upon written request of the Company, the Recipient shall promptly return to the company\nall documents, notes and other tangible materials representing the Confidential Information and all copies thereof.\n6. The recipient recognizes and agrees that nothing contained in this Agreement shall be construed as granting any property rights, by license or\notherwise, to any confidential Information disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or\nother intellectual property right that has issued or that may issue, based on such Confidential Information. The Recipient shall not make, have\nmade, use or sell for any purpose any product or other item using, incorporating or derived from and Confidential Information.\nAttachment D\n1\nMarch 2014\n7. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction\nof any Confidential Information shall remain the property of the Company and shall contain any and all confidential or proprietary notices or\nlegends which appear on the original, unless otherwise authorized in writing by the Company.\n8. This Agreement shall be governed by and constructed in accordance with the laws of the State of Washington without reference to conflict of\nlaw principles. Any disputes under this Agreement may be brought in the applicable federal or state court for the judicial district in which Papa\nMurphy’s International has its principal place of business at the time the action is commenced. The parties waive all issues of personal\njurisdiction or venue for the purpose of enforcing this Section. This Agreement may not be amended except by a writing signed by both parties\nhereto.\n9. The Recipient agrees that breach of this Agreement will cause Company irreparable harm for which recovery of monetary damages would be\ninadequate, and that the Company shall be entitled to obtain timely injunctive relief under this Agreement, as well as such further relief as may\nbe granted by a court of competent jurisdiction.\n10. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such provision shall be changed and\ninterpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable\ncourt decisions.\n11. The recipient will not assign or transfer any rights or obligations under this Agreement without the prior written consent of the Company.\n12. All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, electronic\nmail, facsimile transmission or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five\ndays after deposit in the mail, or upon acknowledgement of receipt of electronic transmission. Notices shall be sent to the addresses set forth at\nthe end of this Agreement or such other addresses as either party may specify in writing.\n[SIGNATURES ON FOLLOWING PAGE]\nAttachment D\n2\nMarch 2014\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date.\nPAPA MURPHY’S INTERNATIONAL LLC\nBy:\nVictoria T. Blackwell\nChief Legal Officer\nDate:\nFRANCHISE OWNER:\nSign here if you are taking the franchise as an\nINDIVIDUAL(S)\n(Note: use these blocks if you marked in\nSection 10.2 of the Franchise Agreement that\nyou are an individual or a partnership but the\npartnership is not a separate legal entity)\nOR\nSign here if you are taking the franchise as a\nCORPORATION, LIMITED LIABILITY\nCOMPANY OR PARTNERSHIP\nPrint Name of Legal Entity\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nAttachment D\n3\nMarch 2014	ATTACHMENT D\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (“Agreement”) governs the disclosure of information by Papa Murphy’s International LL.C\n(“Company”) to the person or entity listed as the Franchise Owner(s) on the signature block of this Agreement (“Recipient”) as of\n, 20 (“Effective Date”).\n1.  “Confidential Information” means any and all technical and general information provided by Company to recipient, including but not limited\nto information relating to Company’s franchise system, underlying processes, recipes, mixes, techniques, know-how, ingredients, written\ndocumentation, operations manuals, methods of business, business plans, financial information, procurement requirements, purchasing,\nmanufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising,\nmarketing plans and information the Company provides regarding third parties.\n2. The Recipient agrees that it will hold in strict confidence and not disclose Confidential Information to any third party, except as approved in\nwriting by the Company, and will use the confidential information for no purpose other than evaluating or pursuing a business relationship\nwith the Company. The Recipient shall only permit access to Confidential Information to those of its employees or authorized representatives\nhaving a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as\nrestrictive as those contained herein.\nThe Recipient shall immediately notify the Company in the event of any loss or unauthorized disclosure of any confidential information.\n4.  The Recipient’s obligations under this Agreement do not apply to Confidential Information that: (a) was in the public domain before it was\ncommunicated to the Recipient through no fault of the Recipient; (b) entered the public domain after it was communicated to the Recipient\nthrough no fault of the Recipient; or (c) was in the Recipient’s possession free of any obligation of confidence at the time it was communicated\nto the Recipient.\n5. Upon completion of the evaluation by Recipient or upon written request of the Company, the Recipient shall promptly return to the company\nall documents, notes and other tangible materials representing the Confidential Information and all copies thereof.\n6.  The recipient recognizes and agrees that nothing contained in this Agreement shall be construed as granting any property rights, by license or\notherwise, to any confidential Information disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or\nother intellectual property right that has issued or that may issue, based on such Confidential Information. The Recipient shall not make, have\nmade, use or sell for any purpose any product or other item using, incorporating or derived from and Confidential Information.\nAttachment D 1 March 2014\n10. 11. 12. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction\nof any Confidential Information shall remain the property of the Company and shall contain any and all confidential or proprietary notices or\nlegends which appear on the original, unless otherwise authorized in writing by the Company.\nThis Agreement shall be governed by and constructed in accordance with the laws of the State of Washington without reference to conflict of\nlaw principles. Any disputes under this Agreement may be brought in the applicable federal or state court for the judicial district in which Papa\nMurphy’s International has its principal place of business at the time the action is commenced. The parties waive all issues of personal\njurisdiction or venue for the purpose of enforcing this Section. This Agreement may not be amended except by a writing signed by both parties\nhereto.\nThe Recipient agrees that breach of this Agreement will cause Company irreparable harm for which recovery of monetary damages would be\ninadequate, and that the Company shall be entitled to obtain timely injunctive relief under this Agreement, as well as such further relief as may\nbe granted by a court of competent jurisdiction.\nIf any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such provision shall be changed and\ninterpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable\ncourt decisions.\nThe recipient will not assign or transfer any rights or obligations under this Agreement without the prior written consent of the Company.\nAll notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, electronic\nmail, facsimile transmission or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five\ndays after deposit in the mail, or upon acknowledgement of receipt of electronic transmission. Notices shall be sent to the addresses set forth at\nthe end of this Agreement or such other addresses as either party may specify in writing.\n[SIGNATURES ON FOLLOWING PAGE]\nAttachment D 2 March 2014\fIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date. PAPA MURPHY’S INTERNATIONAL LLC\nBy:\nVictoria T. Blackwell\nChief Legal Officer\nDate:\nFRANCHISE OWNER:\nSign here if you are taking the franchise as an OR\nINDIVIDUAL(S)\n(Note: use these blocks if you marked in\nSection 10.2 of the Franchise Agreement that\nyou are an individual or a partnership but the\npartnership is not a separate legal entity)\nSignature:\nPrint Name:\nDate:\nSignature:\nPrint Name:\nDate:\nSignature:\nPrint Name:\nDate:\nSignature:\nPrint Name:\nDate:\nSignature:\nPrint Name:\nDate:\nSignature:\nPrint Name:\nDate:\nAttachment D 3 By:\nPrint Name: Title:\nDate:\nBy:\nPrint Name: Title:\nDate:\nBy:\nPrint Name: Title:\nDate:\nBy:\nPrint Name: Title:\nDate:\nBy:\nPrint Name: Title:\nDate:\nBy:\nPrint Name: Title:\nDate:\nSign here if you are taking the franchise as a\nCORPORATION, LIMITED LIABILITY\nCOMPANY OR PARTNERSHIP\nPrint Name of Legal Entity\nMarch 2014	ATTACHMENT D\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT ("Agreement") governs the disclosure of information by Papa Murphy's International LLC\n("Company") to the person or entity listed as the Franchise Owner(s) on the signature block of this Agreement ("Recipient") as of\n,\n20 ("Effective Date").\n1.\n"Confidential Information" means any and all technical and general information provided by Company to recipient, including but not limited\nto information relating to Company's franchise system, underlying processes, recipes, mixes, techniques, know-how, ingredients, written\ndocumentation, operations manuals, methods of business, business plans, financial information, procurement requirements, purchasing,\nmanufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising,\nmarketing plans and information the Company provides regarding third parties.\n2.\nThe Recipient agrees that it will hold in strict confidence and not disclose Confidential Information to any third party, except as approved in\nwriting by the Company, and will use the confidential information for no purpose other than evaluating or pursuing a business relationship\nwith the Company. The Recipient shall only permit access to Confidential Information to those of its employees or authorized representatives\nhaving a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as\nrestrictive as those contained herein.\n3.\nThe Recipient shall immediately notify the Company in the event of any loss or unauthorized disclosure of any confidential information.\n4.\nThe Recipient's obligations under this Agreement do not apply to Confidentia Information that: (a) was in the public domain before it was\ncommunicated to the Recipient through no fault of the Recipient; (b) entered the public domain after it was communicated to the Recipient\nthrough no fault of the Recipient; or (c) was in the Recipient's possession free of any obligation of confidence at the time it was communicated\nto the Recipient.\n5.\nUpon completion of the evaluation by Recipient or upon written request of the Company, the Recipient shall promptly return to the company\nall documents, notes and other tangible materials representing the Confidential Information and all copies thereof.\n6.\nThe recipient recognizes and agrees that nothing contained in this Agreement shall be construed as granting any property rights, by license\nor\notherwise, to any confidential Information disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or\nother intellectual property right that has issued or that may issue, based on such Confidential Information. The Recipient shall not make, have\nmade, use or sell for any purpose any product or other item using, incorporating or derived from and Confidential Information.\nAttachment D\n1\nMarch 2014\n7. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction\nof any Confidential Information shall remain the property of the Company and shall contain any and all confidential or proprietary notices or\nlegends which appear on the original, unless otherwise authorized in writing by the Company.\n8.\nThis Agreement shall be governed by and constructed in accordance with the laws of the State of Washington without reference to conflict of\nlaw principles. Any disputes under this Agreement may be brought in the applicable federal or state court for the judicial district in\nwhich\nPapa\nMurphy's International has its principal place of business at the time the action is commenced. The parties waive all issues of personal\njurisdiction or venue for the purpose of enforcing this Section. This Agreement may not be amended except by a writing signed by both parties\nhereto.\n9.\nThe Recipient agrees that breach of this Agreement will cause Company irreparable harm for which recovery of monetary damages would be\ninadequate, and that the Company shall be entitled to obtain timely injunctive relief under this Agreement, as well as such further relief as may\nbe granted by a court of competent jurisdiction\n10.\nIf any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such provision shall be changed and\ninterpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable\ncourt decisions.\n11. The recipient will not assign or transfer any rights or obligations under this Agreement without the prior written consent of the Company.\n12. All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, electronic\nmail, facsimile transmission or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five\ndays\nafter deposit in the mail, or upon acknowledgement of receipt of electronic transmission. Notices shall be sent to the addresses set forth at\nthe end of this Agreement or such other addresses as either party may specify in writing.\n[SIGNATURES ON FOLLOWING PAGE]\nAttachment D\n2\nMarch 2014\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date.\nPAPA MURPHY'S INTERNATIONAL LLC\nBy:\nVictoria T. Blackwell\nChief Legal Officer\nDate:\nFRANCHISE OWNER:\nSign here if you are taking the franchise as an\nOR\nSign here if you are taking the franchise as a\nINDIVIDUAL(S\nCORPORATION, LIMITED LIABILITY\n(Note: use these blocks if you marked in\nCOMPANY OR PARTNERSHIP\nSection 10.2 of the Franchise Agreement that\nyou are an individual or a partnership but the\npartnership is not a separate legal entity)\nPrint Name of Legal Entity\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nAttachment D\n3\nMarch 2014	ATTACHMENT D\nNONDISCLOSURE AGREEMENT\nTHIS NONDISCLOSURE AGREEMENT (“Agreement”) governs the disclosure of information by Papa Murphy’s International LLC\n(“Company”) to the person or entity listed as the Franchise Owner(s) on the signature block of this Agreement (“Recipient”) as of\n,20\n(“Effective Date”).\n1.\n“Confidential Information” means any and all technical and general information provided by Company to recipient, including but not limited\nto information relating to Company’s franchise system, underlying processes, recipes, mixes, techniques, know-how, ingredients, written\ndocumentation, operations manuals, methods of business, business plans, financial information, procurement requirements, purchasing,\nmanufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising,\nmarketing plans and information the Company provides regarding third parties.\n2. The Recipient agrees that it will hold in strict confidence and not disclose Confidential Information to any third party, except as approved in\nwriting by the Company, and will use the confidential information for no purpose other than evaluating or pursuing a business relationship\nwith the Company. The Recipient shall only permit access to Confidential Information to those of its employees or authorized representatives\nhaving a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as\nrestrictive as those contained herein.\n3. The Recipient shall immediately notify the Company in the event of any loss or unauthorized disclosure of any confidential information.\n4. The Recipient’s obligations under this Agreement do not apply to Confidential Information that: (a) was in the public domain before it was\ncommunicated to the Recipient through no fault of the Recipient; (b) entered the public domain after it was communicated to the Recipient\nthrough no fault of the Recipient; or (c) was in the Recipient’s possession free of any obligation of confidence at the time it was communicated\nto the Recipient.\n5. Upon completion of the evaluation by Recipient or upon written request of the Company, the Recipient shall promptly return to the company\nall documents, notes and other tangible materials representing the Confidential Information and all copies thereof.\n6. The recipient recognizes and agrees that nothing contained in this Agreement shall be construed as granting any property rights, by license or\notherwise, to any confidential Information disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or\nother intellectual property right that has issued or that may issue, based on such Confidential Information. The Recipient shall not make, have\nmade, use or sell for any purpose any product or other item using, incorporating or derived from and Confidential Information.\nAttachment D\n1\nMarch 2014\n7. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction\nof any Confidential Information shall remain the property of the Company and shall contain any and all confidential or proprietary notices or\nlegends which appear on the original, unless otherwise authorized in writing by the Company.\n8. This Agreement shall be governed by and constructed in accordance with the laws of the State of Washington without reference to conflict of\nlaw principles. Any disputes under this Agreement may be brought in the applicable federal or state court for the judicial district in which Papa\nMurphy’s International has its principal place of business at the time the action is commenced. The parties waive all issues of personal\njurisdiction or venue for the purpose of enforcing this Section. This Agreement may not be amended except by a writing signed by both parties\nhereto.\n9. The Recipient agrees that breach of this Agreement will cause Company irreparable harm for which recovery of monetary damages would be\ninadequate, and that the Company shall be entitled to obtain timely injunctive relief under this Agreement, as well as such further relief as may\nbe granted by a court of competent jurisdiction.\n10. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid, such provision shall be changed and\ninterpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable\ncourt decisions.\n11. The recipient will not assign or transfer any rights or obligations under this Agreement without the prior written consent of the Company.\n12. All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, electronic\nmail, facsimile transmission or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five\ndays after deposit in the mail, or upon acknowledgement of receipt of electronic transmission. Notices shall be sent to the addresses set forth at\nthe end of this Agreement or such other addresses as either party may specify in writing.\n[SIGNATURES ON FOLLOWING PAGE]\nAttachment D\n2\nMarch 2014\nIN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date.\nPAPA MURPHY’S INTERNATIONAL LLC\nBy:\nVictoria T. Blackwell\nChief Legal Officer\nDate:\nFRANCHISE OWNER:\nSign here if you are taking the franchise as an\nINDIVIDUAL(S)\n(Note: use these blocks if you marked in\nSection 10.2 of the Franchise Agreement that\nyou are an individual or a partnership but the\npartnership is not a separate legal entity)\nOR\nSign here if you are taking the franchise as a\nCORPORATION, LIMITED LIABILITY\nCOMPANY OR PARTNERSHIP\nPrint Name of Legal Entity\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nSignature:\nBy:\nPrint Name:\nPrint Name:\nDate:\nTitle:\nDate:\nAttachment D\n3\nMarch 2014
+73cec195391b740e1185dd352ccae753.pdf	effective_date jurisdiction party term	EX-2.3 4 dex23.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT - ANDREW MILSTEIN\nExhibit 2.3\nBURLINGTON COAT FACTORY HOLDINGS, INC.\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made as of April 13, 2006 between Burlington Coat Factory Holdings, Inc., a Delaware corporation (the\n“Company”), and Andrew Milstein (“Seller”). For purposes of this Agreement, unless the context requires otherwise, the term “Company” shall\ninclude all subsidiaries of the Company, including, without limitation, Burlington Coat Factory Warehouse Corporation, a Delaware corporation\n(“BlueBlazer”) and its subsidiaries.\nWHEREAS, Seller pursuant to that certain Agreement and Plan of Merger by and among the Company, BCFWC Mergersub, Inc., a\nDelaware corporation (the “Merger Sub”) and BlueBlazer, dated as of January 18, 2006 (the “Merger Agreement”) has received from the Company\nthe right to receive certain cash consideration in exchange for certain securities of BlueBlazer.\nWHEREAS, at the Effective Time (as defined in the Merger Agreement) MergerSub will merge with and into BlueBlazer pursuant to the\nMerger Agreement, with BlueBlazer being the surviving corporation of such merger, and the Company will own all issued and outstanding shares of\ncapital stock of BlueBlazer.\nWHEREAS, the Company and Seller desire to enter into an agreement setting forth the obligation of Seller to refrain from competing\nwith the Company for a period of time after the consummation of the transactions contemplated by the Merger Agreement as provided herein.\nWHEREAS, the execution and delivery of this Agreement by Seller is a condition to the consummation of the transactions contemplated\nby the Merger Agreement, and Seller is entering into this Agreement to induce the Company and the Merger Sub to consummate the transactions\ncontemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the Company and Seller hereby agree as follows:\n1. Nondisclosure and Nonuse of Confidential Information. For a period of three (3) years following the date hereof, Seller shall keep\nsecret and hold in confidence, and shall not use for its benefit, any and all information relating to the Company that is proprietary to the Company,\nother than the following: (i) information that has become generally available to the public other than as a result of a disclosure by Seller in breach of\nthis Agreement and (ii) information that is required to be disclosed by any applicable law. In connection with disclosure of confidential information\nunder clause (ii) above, Seller shall give the Company timely prior notice of the anticipated disclosure and the parties shall cooperate in designing\nreasonable procedural and other safeguards to preserve, to the maximum extent possible, the confidentiality of such material.\n2. Noncompetition.\n(a) Seller agrees that, for a period of one (1) year following the date hereof (the “Non-Compete Period”), neither Seller nor any of\nSeller’s Affiliates shall without the prior written consent of the Company, directly or indirectly, anywhere in the United States (the “Territory”)\n(i) form, acquire, operate, control, make a financial investment in, enter into any agreement pertaining to, publicly announce the launch of, or\notherwise finance, manage, participate in, consult with, become employed by or render advisory services to, any business or otherwise become\nassociated with an enterprise, the business of which is the same as, substantially similar to or otherwise competitive with the business of the\nCompany as now conducted (i.e., the business of BlueBlazer and its subsidiaries conducted or proposed to be conducted immediately prior to the\nclosing of the Merger) (a “Competing Business”), or (ii) for the purpose of conducting or engaging in a Competing Business, call upon, solicit,\nadvise or otherwise do, or attempt to do, business with any suppliers, vendors or other material business relationships of the Company. As used in\nthis Section 2 and Section 3 below, “Affiliate” of any particular person means any other person controlling, controlled by or under common control\nwith such particular person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a\nperson whether through the ownership of voting securities, contract or otherwise. Nothing herein shall prohibit Seller or any of Seller’s Affiliates\nfrom being a passive owner of not more than 3% of the outstanding stock of a corporation which is publicly traded, so long as neither Seller nor any\nof Seller’s Affiliate have an active participation in the business of such corporation.\n(b) Seller agrees that (i) the covenants set forth in this Section 2 are reasonable in temporal and geographical scope and in all other\nrespects, and (ii) the covenants contained herein have been made in order to induce the Company to enter into this Agreement and the Merger\nAgreement.\n(c) The Company and Seller intend that the covenants of this Section 2 shall be deemed to be a series of separate covenants, one for each\ncounty or province of each and every state within the Territory and one for each month of the Non-Compete Period.\n(d) If, at the time of enforcement of this Section 2, a court shall hold that the duration or scope stated herein are unreasonable under\ncircumstances then existing, the parties agree that the maximum duration or scope under such circumstances shall be substituted for the stated\nduration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by\nlaw.\n(e) Seller recognizes and affirms that in the event of its breach of any provision of this Section 2, money damages would be inadequate\nand the Company would not have an adequate remedy at law. Accordingly, Seller agrees that in the event of a breach or a threatened breach by Seller\nof any of the provisions of this Section 2, the Company, in addition and supplementary to other rights and remedies existing in its favor, may apply\nto any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any\nviolations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Seller of this\nSection 2, the Non-Compete Period shall be tolled until such breach or violation has been duly cured.\n2\n3. Nonsolicitation. For a period of three (3) years following the date hereof, Seller and each of Seller’s Affiliates shall not:\n(a) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the\nrelationship between the Company and any employee thereof; provided that the placement of any general advertisement or general solicitation to the\npublic at large shall not constitute “interference” under this clause (a);\n(b) hire directly or through another entity any person who was an employee of the Company or any of its subsidiaries as of the date\nhereof; provided that, with the Company’s prior written consent (which consent shall not unreasonably be withheld), Seller and Seller’s Affiliates\ncan hire any person who was an employee of the Company or any of its subsidiaries who has been fired by the Company or any of its subsidiaries;\nprovided further that\n(i) for the avoidance of doubt, the Company’s withholding of consent with respect to Seller’s or Seller’s Affiliate’s hiring of any\nperson shall be deemed reasonable if the Company determines in good faith that (x) the hiring of such person by Seller or Seller ’s\nAffiliates would be detrimental to the business of the Company or (y) such person has caused such firing to occur in order to circumvent\nthe restrictions of this Section 3(b),\n(ii) if Seller or any of Seller’s Affiliates wishes to hire any such person or persons, it shall so notify the Company (the “Notice’),\nwhich Notice shall set forth the identity of the former employee or employees and request the consent of the Company to such hiring,\nand, if the Company fails to notify the Seller or the notifying Affiliate within ten (10) days of the Company’s receipt of the Notice to it\nthat it is withholding its consent, the Company shall be deemed to have granted such consent and the Seller or the notifying Affiliate may\nproceed to hire such former employee or employees; and\n(iii) nothing herein shall prevent a member of the Milstein family from hiring any other member of the Milstein family; or\n(c) induce or attempt to induce any supplier, vendor or other business relation of the Company to cease doing business with the\nCompany, or in any way interfere with the relationship between any such supplier, vendor, or other business relation and the Company (including,\nwithout limitation, making any negative statements or communications concerning the Company); provided that (x) the hiring of any legal counsel,\naccountant or financial advisor, and (y) following the end of the Non-Compete Period, the operation of any competitive business in the ordinary\ncourse of business, in each case, in and of itself, shall not constitute “interference” under this Section 3(c).\n4. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent via facsimile,\nmailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the\nrecipient at the address below indicated:\nTo the Company:\nBurlington Coat Factory Holdings, Inc.\nBain Capital Partners, LLC\n111 Huntington Avenue\nBoston, Massachusetts 02199\nAttention: Jordan Hitch\nFacsimile No.: (617) 516-2010\n3\nwith copies (which shall not constitute notice to the Company) to:\nKirkland & Ellis\nCiticorp Center\n153 East 53rd Street\nNew York, NY 10022-4675\nAttention: Lance Balk, Esq.\nFacsimile: (212) 446-4900\nTo Seller:\nAndrew Milstein\n16 Foulet Drive\nPrinceton, NJ 08540\nwith copies (which shall not constitute notice to the Seller) to:\nPhillips Nizer LLP\n666 Fifth Avenue\n28th Floor\nNew York, NY 10103\nAttention: Tiberio Schwartz\nFacsimile: (212) 262-5152\nor such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been given when received by the intended recipient thereof.\n5. General Provisions.\n(a) Absence of Conflicting Agreements. Seller hereby warrants and covenants that (i) Seller’s execution, delivery and performance of\nthis Agreement do not and shall not result in a breach of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree\nto which Seller is subject and (ii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding\nobligation of Seller, enforceable in accordance with its terms.\n(b) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any\n4\nprovision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such\ninvalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, and this Agreement shall be reformed, construed\nand enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. The parties agree that a court\nof competent jurisdiction making a determination of the invalidity or unenforceability of any term or provision of Section 2 of this Agreement shall\nhave the power to reduce the scope, duration or area of any such term or provision, to delete specific words or phrases or to replace any invalid or\nunenforceable term or provision in Section 2 with a term or provision that is valid and enforceable and that comes closest to expressing the intention\nof the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified.\n(c) Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith\nembody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or\nrepresentations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.\n(d) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(e) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and Seller and their respective successors and assigns; provided, that the rights and obligations of Seller under this\nAgreement may not be assigned (except in connection with a liquidation or dissolution of Seller) or delegated without the prior written consent of\nthe Company.\n(f) Choice of Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be\ngoverned by, and construed in accordance with, the internal law, and not the law of conflicts, of the State of New York, without giving effect to any\nchoice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of\nthe laws of any jurisdiction other than the State of New York.\n(g) Waiver of Jury Trial. EACH OF THE COMPANY AND SELLER HEREBY IRREVOCABLY WAIVES ANY AND ALL\nRIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR\nTHE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.\n(h) Jurisdiction. Each of the parties hereto submits to the jurisdiction of any state or federal court sitting in New York, New York, in any\naction or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and\ndetermined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly\nwaives any claim of improper venue and any claim that such courts are an inconvenient forum. Each of the parties\n5\nhereby irrevocably consent to the service of process of any of the aforementioned courts in any such suit, action or proceeding by the mailing of\ncopies thereof by registered or certified mail, postage prepaid and return receipt requested, to its address set forth in Section 4, such service to\nbecome effective 10 days after such mailing.\n(i) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the\nevent an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no\npresumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.\nThe word “including” shall mean including without limitation.\n(j) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns\nand nothing herein expressed or implied shall give or be construed to give any person, other than the parties hereto and such permitted successors\nand assigns, any legal or equitable rights hereunder.\n(k) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover\ndamages and costs (including reasonable attorneys fees) caused by any breach of any provision of this Agreement and to exercise all other rights\nexisting in its favor. The parties hereto agree and acknowledge that Seller’s breach of any term or provision of this Agreement shall materially and\nirreparably harm the Company, that money damages shall accordingly not be an adequate remedy for any breach of the provisions of this Agreement\nby Seller and that the Company in its sole discretion and in addition to any other remedies it may have at law or in equity may apply to any court of\nlaw or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to\nenforce or prevent any violations of the provisions of this Agreement. Nothing herein is intended to entitle any party hereto to money damages\nwithout proving such damages.\n(l) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and Seller.\n*****\n6\nIN WITNESS WHEREOF, the parties hereto have executed this Non-Competition and Confidentiality Agreement on the date first\nwritten above.\nBURLINGTON COAT FACTORY\nHOLDINGS, INC.\nBy: /s/ John Tudor\nName: John Tudor\nTitle: Vice President\n/s/ Andrew Milstein\nAndrew Milstein	EX-2.3 4 dex23.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT - ANDREW MILSTEIN\nExhibit 2.3\nBURLINGTON COAT FACTORY HOLDINGS, INC.\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made as of April 13, 2006 between Burlington Coat Factory Holdings, Inc., a Delaware corporation (the\n“Company”), and Andrew Milstein (“Seller”). For purposes of this Agreement, unless the context requires otherwise, the term “Company” shall\ninclude all subsidiaries of the Company, including, without limitation, Burlington Coat Factory Warehouse Corporation, a Delaware corporation\n(“BlueBlazer”) and its subsidiaries.\nWHEREAS, Seller pursuant to that certain Agreement and Plan of Merger by and among the Company, BCFWC Mergersub, Inc., a\nDelaware corporation (the “Merger Sub”) and BlueBlazer, dated as of January 18, 2006 (the “Merger Agreement”) has received from the Company\nthe right to receive certain cash consideration in exchange for certain securities of BlueBlazer.\nWHEREAS, at the Effective Time (as defined in the Merger Agreement) MergerSub will merge with and into BlueBlazer pursuant to the\nMerger Agreement, with BlueBlazer being the surviving corporation of such merger, and the Company will own all issued and outstanding shares of\ncapital stock of BlueBlazer.\nWHEREAS, the Company and Seller desire to enter into an agreement setting forth the obligation of Seller to refrain from competing\nwith the Company for a period of time after the consummation of the transactions contemplated by the Merger Agreement as provided herein.\nWHEREAS, the execution and delivery of this Agreement by Seller is a condition to the consummation of the transactions contemplated\nby the Merger Agreement, and Seller is entering into this Agreement to induce the Company and the Merger Sub to consummate the transactions\ncontemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the Company and Seller hereby agree as follows:\n1. Nondisclosure and Nonuse of Confidential Information. For a period of three (3) years following the date hereof, Seller shall keep\nsecret and hold in confidence, and shall not use for its benefit, any and all information relating to the Company that is proprietary to the Company,\nother than the following: (i) information that has become generally available to the public other than as a result of a disclosure by Seller in breach of\nthis Agreement and (ii) information that is required to be disclosed by any applicable law. In connection with disclosure of confidential information\nunder clause (ii) above, Seller shall give the Company timely prior notice of the anticipated disclosure and the parties shall cooperate in designing\nreasonable procedural and other safeguards to preserve, to the maximum extent possible, the confidentiality of such material.\n2. Noncompetition.\n(a) Seller agrees that, for a period of one (1) year following the date hereof (the “Non-Compete Period”), neither Seller nor any of\nSeller’s Affiliates shall without the prior written consent of the Company, directly or indirectly, anywhere in the United States (the “Territory”)\n(i) form, acquire, operate, control, make a financial investment in, enter into any agreement pertaining to, publicly announce the launch of, or\notherwise finance, manage, participate in, consult with, become employed by or render advisory services to, any business or otherwise become\nassociated with an enterprise, the business of which is the same as, substantially similar to or otherwise competitive with the business of the\nCompany as now conducted (i.e., the business of BlueBlazer and its subsidiaries conducted or proposed to be conducted immediately prior to the\nclosing of the Merger) (a “Competing Business™), or (ii) for the purpose of conducting or engaging in a Competing Business, call upon, solicit,\nadvise or otherwise do, or attempt to do, business with any suppliers, vendors or other material business relationships of the Company. As used in\nthis Section 2 and Section 3 below, “Affiliate” of any particular person means any other person controlling, controlled by or under common control\nwith such particular person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a\nperson whether through the ownership of voting securities, contract or otherwise. Nothing herein shall prohibit Seller or any of Seller’s Affiliates\nfrom being a passive owner of not more than 3% of the outstanding stock of a corporation which is publicly traded, so long as neither Seller nor any\nof Seller’s Affiliate have an active participation in the business of such corporation.\n(b) Seller agrees that (i) the covenants set forth in this Section 2 are reasonable in temporal and geographical scope and in all other\nrespects, and (ii) the covenants contained herein have been made in order to induce the Company to enter into this Agreement and the Merger\nAgreement.\n(c) The Company and Seller intend that the covenants of this Section 2 shall be deemed to be a series of separate covenants, one for each\ncounty or province of each and every state within the Territory and one for each month of the Non-Compete Period.\n(d) If, at the time of enforcement of this Section 2, a court shall hold that the duration or scope stated herein are unreasonable under\ncircumstances then existing, the parties agree that the maximum duration or scope under such circumstances shall be substituted for the stated\nduration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by\nlaw.\n(e) Seller recognizes and affirms that in the event of its breach of any provision of this Section 2, money damages would be inadequate\nand the Company would not have an adequate remedy at law. Accordingly, Seller agrees that in the event of a breach or a threatened breach by Seller\nof any of the provisions of this Section 2, the Company, in addition and supplementary to other rights and remedies existing in its favor, may apply\nto any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any\nviolations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Seller of this\nSection 2, the Non-Compete Period shall be tolled until such breach or violation has been duly cured.\n2\n3. Nonsolicitation. For a period of three (3) years following the date hereof, Seller and each of Seller’s Affiliates shall not:\n(a) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the\nrelationship between the Company and any employee thereof; provided that the placement of any general advertisement or general solicitation to the\npublic at large shall not constitute “interference” under this clause (a);\n \n(b) hire directly or through another entity any person who was an employee of the Company or any of its subsidiaries as of the date\nhereof; provided that, with the Company’s prior written consent (which consent shall not unreasonably be withheld), Seller and Seller’s Affiliates\ncan hire any person who was an employee of the Company or any of its subsidiaries who has been fired by the Company or any of its subsidiaries;\nprovided further that\n \n(i) for the avoidance of doubt, the Company’s withholding of consent with respect to Seller’s or Seller’s Affiliate’s hiring of any\nperson shall be deemed reasonable if the Company determines in good faith that (x) the hiring of such person by Seller or Seller’s\nAffiliates would be detrimental to the business of the Company or (y) such person has caused such firing to occur in order to circumvent\nthe restrictions of this Section 3(b),\n(ii) if Seller or any of Seller’s Affiliates wishes to hire any such person or persons, it shall so notify the Company (the “Notice’),\nwhich Notice shall set forth the identity of the former employee or employees and request the consent of the Company to such hiring,\nand, if the Company fails to notify the Seller or the notifying Affiliate within ten (10) days of the Company’s receipt of the Notice to it\nthat it is withholding its consent, the Company shall be deemed to have granted such consent and the Seller or the notifying Affiliate may\nproceed to hire such former employee or employees; and\n(iii) nothing herein shall prevent a member of the Milstein family from hiring any other member of the Milstein family; or\n(c) induce or attempt to induce any supplier, vendor or other business relation of the Company to cease doing business with the\nCompany, or in any way interfere with the relationship between any such supplier, vendor, or other business relation and the Company (including,\nwithout limitation, making any negative statements or communications concerning the Company); provided that (x) the hiring of any legal counsel,\naccountant or financial advisor, and (y) following the end of the Non-Compete Period, the operation of any competitive business in the ordinary\ncourse of business, in each case, in and of itself, shall not constitute “interference” under this Section 3(c).\n \n4. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent via facsimile,\nmailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the\nrecipient at the address below indicated:\nTo the Company:\nBurlington Coat Factory Holdings, Inc.\nBain Capital Partners, LLC\n111 Huntington Avenue\nBoston, Massachusetts 02199\nAttention: Jordan Hitch\nFacsimile No.: (617) 516-2010\nwith copies (which shall not constitute notice to the Company)_to:\nKirkland & Ellis\nCiticorp Center\n153 East 53rd Street\nNew York, NY 10022-4675\nAttention: Lance Balk, Esq.\nFacsimile: (212) 446-4900\nTo Seller:\nAndrew Milstein\n16 Foulet Drive\nPrinceton, NJ 08540\nwith copies (which shall not constitute notice to the Seller) to:\nPhillips Nizer LLP\n666 Fifth Avenue\n28% Floor\nNew York, NY 10103\nAttention: Tiberio Schwartz\nFacsimile: (212) 262-5152\nor such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been given when received by the intended recipient thereof.\n5. General Provisions.\n(a) Absence of Conflicting Agreements. Seller hereby warrants and covenants that (i) Seller’s execution, delivery and performance of\nthis Agreement do not and shall not result in a breach of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree\nto which Seller is subject and (ii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding\nobligation of Seller, enforceable in accordance with its terms.\n(b) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any\nprovision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such\ninvalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, and this Agreement shall be reformed, construed\nand enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. The parties agree that a court\nof competent jurisdiction making a determination of the invalidity or unenforceability of any term or provision of Section 2 of this Agreement shall\nhave the power to reduce the scope, duration or area of any such term or provision, to delete specific words or phrases or to replace any invalid or\nunenforceable term or provision in Section 2 with a term or provision that is valid and enforceable and that comes closest to expressing the intention\nof the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified.\n(c) Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith\nembody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or\nrepresentations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.\n(d) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(e) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and Seller and their respective successors and assigns; provided, that the rights and obligations of Seller under this\nAgreement may not be assigned (except in connection with a liquidation or dissolution of Seller) or delegated without the prior written consent of\nthe Company.\n(f) Choice of Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be\ngoverned by, and construed in accordance with, the internal law, and not the law of conflicts, of the State of New York, without giving effect to any\nchoice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of\nthe laws of any jurisdiction other than the State of New York.\n(g) Waiver of Jury Trial. EACH OF THE COMPANY AND SELLER HEREBY IRREVOCABLY WAIVES ANY AND ALL\nRIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR\nTHE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.\n(h) Jurisdiction. Each of the parties hereto submits to the jurisdiction of any state or federal court sitting in New York, New York, in any\naction or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and\ndetermined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly\nwaives any claim of improper venue and any claim that such courts are an inconvenient forum. Each of the parties\n5\nhereby irrevocably consent to the service of process of any of the aforementioned courts in any such suit, action or proceeding by the mailing of\ncopies thereof by registered or certified mail, postage prepaid and return receipt requested, to its address set forth in Section 4, such service to\nbecome effective 10 days after such mailing.\n \n(i) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the\nevent an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no\npresumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.\nThe word “including” shall mean including without limitation.\n \n(j) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns\nand nothing herein expressed or implied shall give or be construed to give any person, other than the parties hereto and such permitted successors\nand assigns, any legal or equitable rights hereunder.\n(k) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover\ndamages and costs (including reasonable attorneys fees) caused by any breach of any provision of this Agreement and to exercise all other rights\nexisting in its favor. The parties hereto agree and acknowledge that Seller’s breach of any term or provision of this Agreement shall materially and\nirreparably harm the Company, that money damages shall accordingly not be an adequate remedy for any breach of the provisions of this Agreement\nby Seller and that the Company in its sole discretion and in addition to any other remedies it may have at law or in equity may apply to any court of\nlaw or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to\nenforce or prevent any violations of the provisions of this Agreement. Nothing herein is intended to entitle any party hereto to money damages\nwithout proving such damages.\n(1) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and Seller.\nL S\nIN WITNESS WHEREOF, the parties hereto have executed this Non-Competition and Confidentiality Agreement on the date first\nwritten above.\nBURLINGTON COAT FACTORY\nHOLDINGS, INC.\nBy:  /s/ John Tudor\nName: John Tudor\nTitle: Vice President\n/s/ Andrew Milstein\nAndrew Milstein	EX-2.3 4 dex23.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT ANDREW MILSTEIN\nExhibit 2.3\nBURLINGTON COAT FACTORY HOLDINGS, INC.\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made as of April 13, 2006 between Burlington Coat Factory Holdings, Inc., a Delaware corporation (the\n"Company."), and Andrew Milstein ("Seller"). For purposes of this Agreement, unless the context requires otherwise, the term "Company." shall\ninclude all subsidiaries of the Company, including, without limitation, Burlington Coat Factory Warehouse Corporation, a Delaware corporation\n("BlueBlazer") and its subsidiaries.\nWHEREAS, Seller pursuant to that certain Agreement and Plan of Merger by and among the Company, BCFWC Mergersub, Inc., a\nDelaware corporation (the "Merger Sub") and BlueBlazer, dated as of January 18, 2006 (the "Merger Agreement") has received from the Company\nthe right to receive certain cash consideration in exchange for certain securities of BlueBlazer.\nWHEREAS, at the Effective Time (as defined in the Merger Agreement) MergerSub will merge with and into BlueBlazer pursuant to the\nMerger Agreement, with BlueBlazer being the surviving corporation of such merger, and the Company will own all issued and outstanding shares of\ncapital stock of BlueBlazer.\nWHEREAS, the Company and Seller desire to enter into an agreement setting forth the obligation of Seller to refrain from competing\nwith the Company for a period of time after the consummation of the transactions contemplated by the Merger Agreement as provided herein.\nWHEREAS, the execution and delivery of this Agreement by Seller is a condition to the consummation of the transactions contemplated\nby\nthe Merger Agreement, and Seller is entering into this Agreement to induce the Company and the Merger Sub to consummate the transactions\ncontemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the Company and Seller hereby agree as follows:\n1. Nondisclosure and Nonuse of Confidential Information. For a period of three (3) years following the date hereof, Seller shall keep\nsecret and hold in confidence, and shall not use for its benefit, any and all information relating to the Company that is proprietary to the Company,\nother than the following: (i) information that has become generally available to the public other than as a result of a disclosure by Seller in breach\nof\nthis Agreement and (ii) information that is required to be disclosed by any applicable law. In connection with disclosure of confidential information\nunder clause (ii) above, Seller shall give the Company timely prior notice of the anticipated disclosure and the parties shall cooperate in designing\nreasonable procedural and other safeguards to preserve, to the maximum extent possible, the confidentiality of such material.\n2. Noncompetition.\n(a) Seller agrees that, for a period of one (1) year following the date hereof (the "Non-Compete Period"), neither Seller nor any of\nSeller's Affiliates shall without the prior written consent of the Company, directly or indirectly, anywhere in the United States (the "Territory.")\n(i) form, acquire, operate, control, make a financial investment in, enter into any agreement pertaining to, publicly announce the launch of, or\notherwise\nfinance, manage, participate in, consult with, become employed by or render advisory services to, any business or otherwise become\nassociated with an enterprise, the business of which is the same as, substantially similar to or otherwise competitive with the business of the\nCompany as now conducted (i.e., the business of BlueBlazer and its subsidiaries conducted or proposed to be conducted immediately prior to the\nclosing of the Merger) (a "Competing Business"), or (ii) for the purpose of conducting or engaging in a Competing Business, call upon, solicit,\nadvise or otherwise do, or attempt to do, business with any suppliers, vendors or other material business relationships of the Company. As used in\nthis Section 2 and Section 3 below, "Affiliate" of any particular person means any other person controlling, controlled by or under common control\nwith such particular person, where "control" means the possession, directly or indirectly, of the power to direct the management and policies of a\nperson whether through the ownership of voting securities, contract or otherwise. Nothing herein shall prohibit Seller or any of Seller's Affiliates\nfrom being a passive owner of not more than 3% of the outstanding stock of a corporation which is publicly traded, so long as neither Seller nor\nany\nof Seller's Affiliate have an active participation in the business of such corporation.\n(b) Seller agrees that (i) the covenants set forth in this Section 2 are reasonable in temporal and geographical scope and in all other\nrespects, and (ii) the covenants contained herein have been made in order to induce the Company to enter into this Agreement and the Merger\nAgreement.\n(c) The Company and Seller intend that the covenants of this Section 2 shall be deemed to be a series of separate covenants, one for each\ncounty or province of each and every state within the Territory and one for each month of the Non-Compete Period.\n(d) If, at the time of enforcement of this Section 2, a court shall hold that the duration or scope stated herein are unreasonable under\ncircumstances then existing, the parties agree that the maximum duration or scope under such circumstances shall be substituted for the stated\nduration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by\nlaw.\n(e) Seller recognizes and affirms that in the event of its breach of any provision of this Section 2, money damages would be inadequate\nand the Company would not have an adequate remedy at law. Accordingly, Seller agrees that in the event of a breach or a threatened breach by Seller\nof any of the provisions of this Section 2, the Company, in addition and supplementary to other rights and remedies existing in its favor, may apply\nto any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any\nviolations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Seller of this\nSection 2, the Non-Compete Period shall be tolled until such breach or violation has been duly cured.\n2\n3. Nonsolicitation. For a period of three (3) years following the date hereof, Seller and each of Seller's Affiliates shall not:\n(a) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the\nrelationship between the Company and any employee thereof; provided that the placement of any general advertisement or general solicitation to the\npublic at large shall not constitute "interference" under this clause (a);\n(b) hire directly or through another entity any person who was an employee of the Company or any of its subsidiaries as of the date\nhereof; provided that, with the Company's prior written consent (which consent shall not unreasonably be withheld), Seller and Seller's Affiliates\ncan hire any person who was an employee of the Company or any of its subsidiaries who has been fired by the Company or any of its subsidiaries;\nprovided further that\n(i) for the avoidance of doubt, the Company's withholding of consent with respect to Seller's or Seller's Affiliate's hiring of any\nperson shall be deemed reasonable if the Company determines in good faith that (x) the hiring of such person by Seller or Seller's\nAffiliates would be detrimental to the business of the Company or (y) such person has caused such firing to occur in order to circumvent\nthe restrictions of this Section 3(b),\n(ii) if Seller or any of Seller's Affiliates wishes to hire any such person or persons, it shall SO notify the Company (the "Notice'),\nwhich Notice shall set forth the identity of the former employee or employees and request the consent of the Company to such hiring,\nand, if the Company fails to notify the Seller or the notifying Affiliate within ten (10) days of the Company's receipt of the Notice to it\nthat it is withholding its consent, the Company shall be deemed to have granted such consent and the Seller or the notifying Affiliate may\nproceed to hire such former employee or employees; and\n(iii) nothing herein shall prevent a member of the Milstein family from hiring any other member of the Milstein family; or\n(c) induce or attempt to induce any supplier, vendor or other business relation of the Company to cease doing business with the\nCompany,\nor in any way interfere with the relationship between any such supplier, vendor, or other business relation and the Company (including,\nwithout limitation, making any negative statements or communications concerning the Company); provided that (x) the hiring of any legal counsel,\naccountant or financial advisor, and (y) following the end of the Non-Compete Period, the operation of any competitive business in the ordinary\ncourse of business, in each case, in and of itself, shall not constitute "interference" under this Section 3(c).\n4. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent via facsimile,\nmailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the\nrecipient at the address below indicated:\nTo the Company.:\nBurlington Coat Factory Holdings, Inc.\nBain Capital Partners, LLC\n111 Huntington Avenue\nBoston, Massachusetts 02199\nAttention: Jordan Hitch\nFacsimile No.: (617) 516-2010\n3\nwith copies (which shall not constitute notice to the Company.) to:\nKirkland & Ellis\nCiticorp Center\n153 East 53rd Street\nNew York, NY 10022-4675\nAttention: Lance Balk, Esq.\nFacsimile: (212) 446-4900\nTo Seller:\nAndrew Milstein\n16 Foulet Drive\nPrinceton, NJ 08540\nwith copies (which shall not constitute notice to the Seller) to:\nPhillips Nizer LLP\n666 Fifth Avenue\n28th Floor\nNew York, NY 10103\nAttention: Tiberio Schwartz\nFacsimile: (212) 262-5152\nor such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been given when received by the intended recipient thereof.\n5. General Provisions.\n(a) Absence of Conflicting Agreements. Seller hereby warrants and covenants that (i) Seller's execution, delivery and performance of\nthis\nAgreement do not and shall not result in a breach of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree\nto which Seller is subject and (ii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding\nobligation of Seller, enforceable in accordance with its terms.\n(b) Severability.. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any\n4\nprovision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such\ninvalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, and this Agreement shall be reformed, construed\nand enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. The parties agree that a court\nof competent jurisdiction making a determination of the invalidity or unenforceability of any term or provision of Section 2 of this Agreement shall\nhave the power to reduce the scope, duration or area of any such term or provision, to delete specific words or phrases or to replace any invalid or\nunenforceable term or provision in Section 2 with a term or provision that is valid and enforceable and that comes closest to expressing the intention\nof\nthe invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified.\n(c) Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith\nembody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or\nrepresentations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.\n(d) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(e) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and Seller and their respective successors and assigns; provided, that the rights and obligations of Seller under this\nAgreement may not be assigned (except in connection with a liquidation or dissolution of Seller) or delegated without the prior written consent of\nthe Company.\n(f) Choice of Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be\ngoverned by, and construed in accordance with, the internal law, and not the law of conflicts, of the State of New York, without giving effect to any\nchoice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application\nof\nthe laws of any jurisdiction other than the State of New York.\n(g) Waiver of Jury Trial. EACH OF THE COMPANY AND SELLER HEREBY IRREVOCABLY WAIVES ANY AND ALL\nRIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR\nTHE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.\n(h) Jurisdiction. Each of the parties hereto submits to the jurisdiction of any state or federal court sitting in New York, New York, in any\naction or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and\ndetermined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly\nwaives any claim of improper venue and any claim that such courts are an inconvenient forum. Each of the parties\n5\nhereby irrevocably consent to the service of process of any of the aforementioned courts in any such suit, action or proceeding by the mailing\nof\ncopies thereof by registered or certified mail, postage prepaid and return receipt requested, to its address set forth in Section 4, such service\nto\nbecome effective 10 days after such mailing.\n(i) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the\nevent an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no\npresumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.\nThe word "including" shall mean including without limitation.\n(j) No Third-Party. Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns\nand nothing herein expressed or implied shall give or be construed to give any person, other than the parties hereto and such permitted successors\nand assigns, any legal or equitable rights hereunder.\n(k) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover\ndamages and costs (including reasonable attorneys fees) caused by any breach of any provision of this Agreement and to exercise all other rights\nexisting in its favor. The parties hereto agree and acknowledge that Seller's breach of any term or provision of this Agreement shall materially and\nirreparably harm the Company, that money damages shall accordingly not be an adequate remedy for any breach of the provisions of this Agreement\nby Seller and that the Company in its sole discretion and in addition to any other remedies it may have at law or in equity may apply to any court of\nlaw or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to\nenforce or prevent any violations of the provisions of this Agreement. Nothing herein is intended to entitle any party hereto to money damages\nwithout proving such damages.\n(1) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and Seller.\n* * * * *\n6\nIN WITNESS WHEREOF, the parties hereto have executed this Non-Competition and Confidentiality Agreement on the date first\nwritten above.\nBURLINGTON COAT FACTORY\nHOLDINGS, INC.\nBy:\n/s/ John Tudor\nName: John Tudor\nTitle: Vice President\n/s/ Andrew Milstein\nAndrew Milstein	EX-2.3 4 dex23.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT - ANDREW MILSTEIN\nExhibit 2.3\nBURLINGTON COAT FACTORY HOLDINGS, INC.\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made as of April 13, 2006 between Burlington Coat Factory Holdings, Inc., a Delaware corporation (the\n“Company”), and Andrew Milstein (“Seller”). For purposes of this Agreement, unless the context requires otherwise, the term “Company” shall\ninclude all subsidiaries of the Company, including, without limitation, Burlington Coat Factory Warehouse Corporation, a Delaware corporation\n(“BlueBlazer”) and its subsidiaries.\nWHEREAS, Seller pursuant to that certain Agreement and Plan of Merger by and among the Company, BCFWC Mergersub, Inc., a\nDelaware corporation (the “Merger Sub”) and BlueBlazer, dated as of January 18, 2006 (the “Merger Agreement”) has received from the Company\nthe right to receive certain cash consideration in exchange for certain securities of BlueBlazer.\nWHEREAS, at the Effective Time (as defined in the Merger Agreement) MergerSub will merge with and into BlueBlazer pursuant to the\nMerger Agreement, with BlueBlazer being the surviving corporation of such merger, and the Company will own all issued and outstanding shares of\ncapital stock of BlueBlazer.\nWHEREAS, the Company and Seller desire to enter into an agreement setting forth the obligation of Seller to refrain from competing\nwith the Company for a period of time after the consummation of the transactions contemplated by the Merger Agreement as provided herein.\nWHEREAS, the execution and delivery of this Agreement by Seller is a condition to the consummation of the transactions contemplated\nby the Merger Agreement, and Seller is entering into this Agreement to induce the Company and the Merger Sub to consummate the transactions\ncontemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the Company and Seller hereby agree as follows:\n1. Nondisclosure and Nonuse of Confidential Information. For a period of three (3) years following the date hereof, Seller shall keep\nsecret and hold in confidence, and shall not use for its benefit, any and all information relating to the Company that is proprietary to the Company,\nother than the following: (i) information that has become generally available to the public other than as a result of a disclosure by Seller in breach of\nthis Agreement and (ii) information that is required to be disclosed by any applicable law. In connection with disclosure of confidential information\nunder clause (ii) above, Seller shall give the Company timely prior notice of the anticipated disclosure and the parties shall cooperate in designing\nreasonable procedural and other safeguards to preserve, to the maximum extent possible, the confidentiality of such material.\n2. Noncompetition.\n(a) Seller agrees that, for a period of one (1) year following the date hereof (the “Non-Compete Period”), neither Seller nor any of\nSeller’s Affiliates shall without the prior written consent of the Company, directly or indirectly, anywhere in the United States (the “Territory”)\n(i) form, acquire, operate, control, make a financial investment in, enter into any agreement pertaining to, publicly announce the launch of, or\notherwise finance, manage, participate in, consult with, become employed by or render advisory services to, any business or otherwise become\nassociated with an enterprise, the business of which is the same as, substantially similar to or otherwise competitive with the business of the\nCompany as now conducted (i.e., the business of BlueBlazer and its subsidiaries conducted or proposed to be conducted immediately prior to the\nclosing of the Merger) (a “Competing Business”), or (ii) for the purpose of conducting or engaging in a Competing Business, call upon, solicit,\nadvise or otherwise do, or attempt to do, business with any suppliers, vendors or other material business relationships of the Company. As used in\nthis Section 2 and Section 3 below, “Affiliate” of any particular person means any other person controlling, controlled by or under common control\nwith such particular person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a\nperson whether through the ownership of voting securities, contract or otherwise. Nothing herein shall prohibit Seller or any of Seller’s Affiliates\nfrom being a passive owner of not more than 3% of the outstanding stock of a corporation which is publicly traded, so long as neither Seller nor any\nof Seller’s Affiliate have an active participation in the business of such corporation.\n(b) Seller agrees that (i) the covenants set forth in this Section 2 are reasonable in temporal and geographical scope and in all other\nrespects, and (ii) the covenants contained herein have been made in order to induce the Company to enter into this Agreement and the Merger\nAgreement.\n(c) The Company and Seller intend that the covenants of this Section 2 shall be deemed to be a series of separate covenants, one for each\ncounty or province of each and every state within the Territory and one for each month of the Non-Compete Period.\n(d) If, at the time of enforcement of this Section 2, a court shall hold that the duration or scope stated herein are unreasonable under\ncircumstances then existing, the parties agree that the maximum duration or scope under such circumstances shall be substituted for the stated\nduration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by\nlaw.\n(e) Seller recognizes and affirms that in the event of its breach of any provision of this Section 2, money damages would be inadequate\nand the Company would not have an adequate remedy at law. Accordingly, Seller agrees that in the event of a breach or a threatened breach by Seller\nof any of the provisions of this Section 2, the Company, in addition and supplementary to other rights and remedies existing in its favor, may apply\nto any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any\nviolations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Seller of this\nSection 2, the Non-Compete Period shall be tolled until such breach or violation has been duly cured.\n2\n3. Nonsolicitation. For a period of three (3) years following the date hereof, Seller and each of Seller’s Affiliates shall not:\n(a) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the\nrelationship between the Company and any employee thereof; provided that the placement of any general advertisement or general solicitation to the\npublic at large shall not constitute “interference” under this clause (a);\n(b) hire directly or through another entity any person who was an employee of the Company or any of its subsidiaries as of the date\nhereof; provided that, with the Company’s prior written consent (which consent shall not unreasonably be withheld), Seller and Seller’s Affiliates\ncan hire any person who was an employee of the Company or any of its subsidiaries who has been fired by the Company or any of its subsidiaries;\nprovided further that\n(i) for the avoidance of doubt, the Company’s withholding of consent with respect to Seller’s or Seller’s Affiliate’s hiring of any\nperson shall be deemed reasonable if the Company determines in good faith that (x) the hiring of such person by Seller or Seller ’s\nAffiliates would be detrimental to the business of the Company or (y) such person has caused such firing to occur in order to circumvent\nthe restrictions of this Section 3(b),\n(ii) if Seller or any of Seller’s Affiliates wishes to hire any such person or persons, it shall so notify the Company (the “Notice’),\nwhich Notice shall set forth the identity of the former employee or employees and request the consent of the Company to such hiring,\nand, if the Company fails to notify the Seller or the notifying Affiliate within ten (10) days of the Company’s receipt of the Notice to it\nthat it is withholding its consent, the Company shall be deemed to have granted such consent and the Seller or the notifying Affiliate may\nproceed to hire such former employee or employees; and\n(iii) nothing herein shall prevent a member of the Milstein family from hiring any other member of the Milstein family; or\n(c) induce or attempt to induce any supplier, vendor or other business relation of the Company to cease doing business with the\nCompany, or in any way interfere with the relationship between any such supplier, vendor, or other business relation and the Company (including,\nwithout limitation, making any negative statements or communications concerning the Company); provided that (x) the hiring of any legal counsel,\naccountant or financial advisor, and (y) following the end of the Non-Compete Period, the operation of any competitive business in the ordinary\ncourse of business, in each case, in and of itself, shall not constitute “interference” under this Section 3(c).\n4. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent via facsimile,\nmailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the\nrecipient at the address below indicated:\nTo the Company:\nBurlington Coat Factory Holdings, Inc.\nBain Capital Partners, LLC\n111 Huntington Avenue\nBoston, Massachusetts 02199\nAttention: Jordan Hitch\nFacsimile No.: (617) 516-2010\n3\nwith copies (which shall not constitute notice to the Company) to:\nKirkland & Ellis\nCiticorp Center\n153 East 53rd Street\nNew York, NY 10022-4675\nAttention: Lance Balk, Esq.\nFacsimile: (212) 446-4900\nTo Seller:\nAndrew Milstein\n16 Foulet Drive\nPrinceton, NJ 08540\nwith copies (which shall not constitute notice to the Seller) to:\nPhillips Nizer LLP\n666 Fifth Avenue\n28th Floor\nNew York, NY 10103\nAttention: Tiberio Schwartz\nFacsimile: (212) 262-5152\nor such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been given when received by the intended recipient thereof.\n5. General Provisions.\n(a) Absence of Conflicting Agreements. Seller hereby warrants and covenants that (i) Seller’s execution, delivery and performance of\nthis Agreement do not and shall not result in a breach of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree\nto which Seller is subject and (ii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding\nobligation of Seller, enforceable in accordance with its terms.\n(b) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any\n4\nprovision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such\ninvalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, and this Agreement shall be reformed, construed\nand enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. The parties agree that a court\nof competent jurisdiction making a determination of the invalidity or unenforceability of any term or provision of Section 2 of this Agreement shall\nhave the power to reduce the scope, duration or area of any such term or provision, to delete specific words or phrases or to replace any invalid or\nunenforceable term or provision in Section 2 with a term or provision that is valid and enforceable and that comes closest to expressing the intention\nof the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified.\n(c) Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith\nembody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or\nrepresentations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.\n(d) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(e) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and Seller and their respective successors and assigns; provided, that the rights and obligations of Seller under this\nAgreement may not be assigned (except in connection with a liquidation or dissolution of Seller) or delegated without the prior written consent of\nthe Company.\n(f) Choice of Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be\ngoverned by, and construed in accordance with, the internal law, and not the law of conflicts, of the State of New York, without giving effect to any\nchoice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of\nthe laws of any jurisdiction other than the State of New York.\n(g) Waiver of Jury Trial. EACH OF THE COMPANY AND SELLER HEREBY IRREVOCABLY WAIVES ANY AND ALL\nRIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR\nTHE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.\n(h) Jurisdiction. Each of the parties hereto submits to the jurisdiction of any state or federal court sitting in New York, New York, in any\naction or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and\ndetermined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly\nwaives any claim of improper venue and any claim that such courts are an inconvenient forum. Each of the parties\n5\nhereby irrevocably consent to the service of process of any of the aforementioned courts in any such suit, action or proceeding by the mailing of\ncopies thereof by registered or certified mail, postage prepaid and return receipt requested, to its address set forth in Section 4, such service to\nbecome effective 10 days after such mailing.\n(i) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the\nevent an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no\npresumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.\nThe word “including” shall mean including without limitation.\n(j) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns\nand nothing herein expressed or implied shall give or be construed to give any person, other than the parties hereto and such permitted successors\nand assigns, any legal or equitable rights hereunder.\n(k) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover\ndamages and costs (including reasonable attorneys fees) caused by any breach of any provision of this Agreement and to exercise all other rights\nexisting in its favor. The parties hereto agree and acknowledge that Seller’s breach of any term or provision of this Agreement shall materially and\nirreparably harm the Company, that money damages shall accordingly not be an adequate remedy for any breach of the provisions of this Agreement\nby Seller and that the Company in its sole discretion and in addition to any other remedies it may have at law or in equity may apply to any court of\nlaw or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to\nenforce or prevent any violations of the provisions of this Agreement. Nothing herein is intended to entitle any party hereto to money damages\nwithout proving such damages.\n(l) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and Seller.\n*****\n6\nIN WITNESS WHEREOF, the parties hereto have executed this Non-Competition and Confidentiality Agreement on the date first\nwritten above.\nBURLINGTON COAT FACTORY\nHOLDINGS, INC.\nBy: /s/ John Tudor\nName: John Tudor\nTitle: Vice President\n/s/ Andrew Milstein\nAndrew Milstein
+7496116e8680dac321f36147b6312411.pdf	effective_date jurisdiction party term	EX-3 2 d838170dex3.htm EX-3\nExhibit 3\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (the “Agreement”) is made by and between Actuate Corporation, a Delaware corporation with its\nprincipal place of business located at 951 Mariners Island Boulevard, San Mateo, CA 94404 (“Actuate”), and Open Text Corporation, a\ncorporation incorporated pursuant to the laws of Canada, with its principal place of business located at 275 Frank Tompa Drive, Waterloo, ON\nN2L OA1 (“Company”). Actuate and Company intend to discuss a potential business relationship.\nEach undersigned party (the “Receiving Party”) and their respective directors, officers, employees, agents, or advisors (including, without\nlimitation, legal advisors, accountants, consultants, bankers, and financial advisors) and potential sources of financing (collectively,\n“Representatives”) understands that during these discussions the other party (the “Disclosing Party’’) may disclose Proprietary Information (as\ndefined herein) relating to the Disclosing Party’s business.\nIn consideration of the parties’ discussions and any access the Receiving Party may have to Proprietary Information of the Disclosing Party, the\nReceiving Party hereby agrees as follows:\n1. As used herein, the term “Proprietary Information” refers to any and all Information of a confidential, proprietary, or secret nature which\nis applicable to or related In any way to (i) the business, present or future, of the Disclosing Party, (ii) the research and development or\ninvestigations of the Disclosing Party or (iii) the business of any customer of the Disclosing Party; provided, in each case, that such information\nis delivered to the Receiving Party by the Disclosing Party and (a) is marked or identified in writing as “Confidential”, (b) if verbal or visual\ndisclosure, is identified as “Confidential” in a writing within ten (10) business days of such disclosure, or (c) is information that the Receiving\nParty actually knew or reasonably should have known was confidential. Proprietary Information may include, for example and without\nlimitation, the product offering, content partners, product pricing, product availability, computer programs, technical drawings, algorithms,\nprocesses, ideas, schematics, trade secrets, processes, formulas, data, know-how, improvements, inventions (whether patentable or not),\ntechniques, marketing plans, forecasts and strategies, and information concerning customers or vendors. Proprietary Information shall also\ninclude all information of a like nature owned by any other person and furnished to the Disclosing Party by such other person pursuant to an\nundertaking by the Disclosing Party to maintain the same in confidence.\n2. The Receiving Party agrees (a) to hold the Disclosing Party’s Proprietary Information In strict confidence and to take all reasonable\nprecautions to protect such Proprietary Information (including, without limitation, all precautions that Receiving Party employs with respect to\nits confidential materials), (b) not to divulge any such Proprietary Information or any information derived therefrom to any third person without\nprior written permission of the Disclosing Party, excluding disclosure to Representatives, (c) not to make any use whatsoever at any time of such\nProprietary Information except to evaluate internally whether to enter into the contemplated business relationship with the Disclosing Party, and\n(d) not to copy or reverse engineer any such Proprietary Information. Any employee given access to any such Proprietary Information must have\na legitimate “need to know” and be subject to restrictions on disclosure of Proprietary Information practically identical to the terms set forth\nherein. Without granting any right or license, the Disclosing Party agrees that the foregoing clauses (a), (b) and (c) shall not apply with respect to\nany information that (i) is or (through no improper action or inaction by the Receiving Party or any agent, consultant or employee) becomes\ngenerally available to the public, or (ii) was or is rightfully in Receiving Party’s possession or the possession of any of its Representatives or was\nknown by it or its Representatives without restriction prior to receipt from the Disclosing Party, or (iii) was or is rightfully disclosed to Receiving\nParty or any of its Representatives by a third party provided the Receiving Party complies with restrictions imposed by the third party, or (iv) was\nor is independently developed without\nuse of any Proprietary Information of the Disclosing Party. The Receiving Party and its Representatives may make disclosures required by court\norder or any legal or judicial process, without any liability hereunder, provided the Receiving Party uses reasonable efforts to limit disclosure and\nto obtain confidential treatment or a protective order and has allowed the Disclosing Party to participate In the proceeding to the extent legally\npermissible and reasonably practicable.\n3. Promptly upon receipt of a written request by the Disclosing Party at any time (which will be effective if actually received or three days\nafter mailed first class postage prepaid to the Receiving Party’s address herein), the Receiving Party will turn over to the Disclosing Party, or, at\nits sole discretion, destroy and certify to the Receiving party in writing the destruction of all Proprietary Information of the Disclosing Party and\nall documents or media containing any such Proprietary Information and any and all copies or extracts thereof; provided, however, the Company\nand its Representatives shall not be obligated to return or destroy Proprietary Information to the extent otherwise required by law, regulation, rule\nor practice governing professionals or any internal compliance policy or procedure required by law, regulation rule of practice governing\nprofessionals. The Receiving Party understands that nothing requires the Disclosing Party to proceed with any proposed transaction or\nrelationship in connection with which Proprietary Information may be disclosed.\n4. Except to the extent required by law, neither party shall disclose the existence or subject matter of the negotiations or business\nrelationship contemplated by this Agreement.\n5. The parties acknowledge and agree that due to the unique nature of the possible transaction between the parties, there can be no adequate\nremedy at law for any material breach of this Agreement, that any such breach may allow the breaching party or third parties to unfairly compete\nwith the non-breaching party, resulting in irreparable harm to the non-breaching party, and therefore, that upon any such breach or any threat\nthereof, the non-breaching party shall be entitled to seek appropriate equitable relief in addition to whatever remedies it might have at law. The\nReceiving Party will notify the Disclosing Party In writing immediately upon the occurrence of any unauthorized release or other breach of\nwhich it is aware.\n6. The parties expressly agree that neither the terms or conditions of this Agreement, nor the discussions held by the parties to address the\nfeasibility of a potential business relationship shall be construed as to prevent either party from pursuing similar discussions with third parties in\nsimilar markets or obligate either party to take, continue or forgo any action relating to the above-mentioned discussions. Further, nothing in this\nAgreement shall be construed as prohibiting or restricting either party from independently developing, acquiring, and marketing products,\nservices, and other materials, which are similar to or competitive In any geographic area and in any form with the other party’s product(s) or\nservice(s). However, this paragraph shall not be deemed to grant to either party any license under the other party’s copyrights or patents.\n7. During the one year period commencing on the date of this Agreement, the Company will not solicit or seek to employ any key\nemployee or executive officer of Actuate or any subsidiary or other affiliate of Actuate with whom the Company had contact or became aware of\nin connection with the possible transaction; provided, however, that the foregoing provisions shall not prohibit the solicitation or employment of\nany such person (i) resulting from general advertisements for employment conducted by the Company (including any recruitment efforts\nconducted by any recruitment agency, provided that the Company has not directed such recruitment efforts at such person), (ii) if such person\napproaches the Company on an unsolicited basis or (iii) following the cessation of such person’s employment with Actuate without any\nsolicitation or encouragement by the Company.\n8. From the date of this Agreement until May 31 , 2015 (the “Standstill Period”) the Company will not, in any manner, directly or indirectly\nthrough any third party:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Actuate or any securities of\nany subsidiary or other affiliate of Actuate, (ii) any acquisition of any assets of Actuate or any assets of any subsidiary or other affiliate of\nActuate, (iii) any tender offer, exchange offer, merger. business combination, recapitalization, restructuring, liquidation, dissolution or\nextraordinary transaction involving Actuate or any subsidiary or other affiliate of Actuate, or involving any securities or assets of Actuate or any\nsecurities or assets of any subsidiary or other affiliate of Actuate, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules\nof the Securities and Exchange Commission) or consents with respect to any securities of Actuate;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Actuate;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Actuate;\n(d) take any action that might require Actuate to make a public announcement regarding any of the types of matters set forth in clause “(a)”\nof this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a) “, “(b)”, “(c)”\nor “(d)” of this sentence; or\n(f) assist, induce or encourage any other individual and any corporation, partnership, entity, group, tribunal or governmental authority\n(“Person”) to take any action of the type referred to In clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this sentence.\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\nNotwithstanding the foregoing, the Company is permitted to purchase any securities that does not in any event result in an aggregate ownership\nby the Company of more than 5% of the outstanding amount of any class of securities of Actuate or of any subsidiary or other affiliate of\nActuate. Further, and notwithstanding the foregoing, the Company shall not be prohibited from (i) making any proposal to the board of directors\nof Actuate, which would not reasonably be expected to require a public announcement by Actuate or (ii) requesting that Actuate, directly or\nindirectly, waive or amend any of the provisions of this Section 8. Finally, and notwithstanding the foregoing, Actuate acknowledges and agrees\nthat any non-disclosure agreement it or its affiliates have entered into or will enter into with a Person to explore a potential transaction for the\nsale of more than 50% of the outstanding voting equity securities of Actuate, or a sale of substantially all of the assets of Actuate, has or will\nhave “standstill” provisions similar or substantially similar to the provisions set forth above in this Section 8 applicable to the Company.\n9. This Agreement shall expire and cease to have any force or effect on the earlier of (i) eighteen months from the date hereof or (ii) the\ndate of consummation of a transaction between the parties.\n10. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal,\ninvalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise\nremain in full force and effect. This Agreement shall be governed by the law of the State of California without regard to the conflicts of law\nprovisions thereof. This Agreement supersedes all prior discussions and writings and constitutes the entire agreement between the parties with\nrespect to the subject matter hereof. The prevailing party in any action to enforce this Agreement shall be entitled to reasonable costs and\nattorneys’ fees. No waiver or modification of this Agreement will be binding upon either party unless made in writing and signed by a duly\nauthorized representative of such party and no failure or delay in enforcing any right will be deemed a waiver.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year set forth below.\n[Signature page follows.]\nDate: July 24, 2014\nACTUATE CORPORATION\nBy: /s/ Thomas McKeever\nName: Thomas McKeever\nTitle: SVP, GC, Corp. Dev. & Sec.\nOPEN TEXT CORPORATION\nBy: /s/ Gordon A. Davies\nName: Gordon A. Davies\nTitle: Chief Legal Officer &\nCorporate Secretary	EX-3 2 d838170dex3.htm EX-3\nExhibit 3\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (the “Agreement”) is made by and between Actuate Corporation, a Delaware corporation with its\nprincipal place of business located at 951 Mariners Island Boulevard, San Mateo, CA 94404 (“Actuate”), and Open Text Corporation, a\ncorporation incorporated pursuant to the laws of Canada, with its principal place of business located at 275 Frank Tompa Drive, Waterloo, ON\nN2L OA1 (“Company”). Actuate and Company intend to discuss a potential business relationship.\nEach undersigned party (the “Receiving Party™) and their respective directors, officers, employees, agents, or advisors (including, without\nlimitation, legal advisors, accountants, consultants, bankers, and financial advisors) and potential sources of financing (collectively,\n“Representatives”) understands that during these discussions the other party (the “Disclosing Party’’) may disclose Proprietary Information (as\ndefined herein) relating to the Disclosing Party’s business.\nIn consideration of the parties’ discussions and any access the Receiving Party may have to Proprietary Information of the Disclosing Party, the\nReceiving Party hereby agrees as follows:\n1. As used herein, the term “Proprietary Information” refers to any and all Information of a confidential, proprietary, or secret nature which\nis applicable to or related In any way to (i) the business, present or future, of the Disclosing Party, (ii) the research and development or\ninvestigations of the Disclosing Party or (iii) the business of any customer of the Disclosing Party; provided, in each case, that such information\nis delivered to the Receiving Party by the Disclosing Party and (a) is marked or identified in writing as “Confidential”, (b) if verbal or visual\ndisclosure, is identified as “Confidential” in a writing within ten (10) business days of such disclosure, or (c) is information that the Receiving\nParty actually knew or reasonably should have known was confidential. Proprietary Information may include, for example and without\nlimitation, the product offering, content partners, product pricing, product availability, computer programs, technical drawings, algorithms,\nprocesses, ideas, schematics, trade secrets, processes, formulas, data, know-how, improvements, inventions (whether patentable or not),\ntechniques, marketing plans, forecasts and strategies, and information concerning customers or vendors. Proprietary Information shall also\ninclude all information of a like nature owned by any other person and furnished to the Disclosing Party by such other person pursuant to an\nundertaking by the Disclosing Party to maintain the same in confidence.\n2. The Receiving Party agrees (a) to hold the Disclosing Party’s Proprietary Information In strict confidence and to take all reasonable\nprecautions to protect such Proprietary Information (including, without limitation, all precautions that Receiving Party employs with respect to\nits confidential materials), (b) not to divulge any such Proprietary Information or any information derived therefrom to any third person without\nprior written permission of the Disclosing Party, excluding disclosure to Representatives, (c) not to make any use whatsoever at any time of such\nProprietary Information except to evaluate internally whether to enter into the contemplated business relationship with the Disclosing Party, and\n(d) not to copy or reverse engineer any such Proprietary Information. Any employee given access to any such Proprietary Information must have\na legitimate “need to know” and be subject to restrictions on disclosure of Proprietary Information practically identical to the terms set forth\nherein. Without granting any right or license, the Disclosing Party agrees that the foregoing clauses (a), (b) and (c) shall not apply with respect to\nany information that (i) is or (through no improper action or inaction by the Receiving Party or any agent, consultant or employee) becomes\ngenerally available to the public, or (ii) was or is rightfully in Receiving Party’s possession or the possession of any of its Representatives or was\nknown by it or its Representatives without restriction prior to receipt from the Disclosing Party, or (iii) was or is rightfully disclosed to Receiving\nParty or any of its Representatives by a third party provided the Receiving Party complies with restrictions imposed by the third party, or (iv) was\nor is independently developed without\nuse of any Proprietary Information of the Disclosing Party. The Receiving Party and its Representatives may make disclosures required by court\norder or any legal or judicial process, without any liability hereunder, provided the Receiving Party uses reasonable efforts to limit disclosure and\nto obtain confidential treatment or a protective order and has allowed the Disclosing Party to participate In the proceeding to the extent legally\npermissible and reasonably practicable.\n3. Promptly upon receipt of a written request by the Disclosing Party at any time (which will be effective if actually received or three days\nafter mailed first class postage prepaid to the Receiving Party’s address herein), the Receiving Party will turn over to the Disclosing Party, or, at\nits sole discretion, destroy and certify to the Receiving party in writing the destruction of all Proprietary Information of the Disclosing Party and\nall documents or media containing any such Proprietary Information and any and all copies or extracts thereof; provided, however, the Company\nand its Representatives shall not be obligated to return or destroy Proprietary Information to the extent otherwise required by law, regulation, rule\nor practice governing professionals or any internal compliance policy or procedure required by law, regulation rule of practice governing\nprofessionals. The Receiving Party understands that nothing requires the Disclosing Party to proceed with any proposed transaction or\nrelationship in connection with which Proprietary Information may be disclosed.\n4. Except to the extent required by law, neither party shall disclose the existence or subject matter of the negotiations or business\nrelationship contemplated by this Agreement.\n5. The parties acknowledge and agree that due to the unique nature of the possible transaction between the parties, there can be no adequate\nremedy at law for any material breach of this Agreement, that any such breach may allow the breaching party or third parties to unfairly compete\nwith the non-breaching party, resulting in irreparable harm to the non-breaching party, and therefore, that upon any such breach or any threat\nthereof, the non-breaching party shall be entitled to seek appropriate equitable relief in addition to whatever remedies it might have at law. The\nReceiving Party will notify the Disclosing Party In writing immediately upon the occurrence of any unauthorized release or other breach of\nwhich it is aware.\n6. The parties expressly agree that neither the terms or conditions of this Agreement, nor the discussions held by the parties to address the\nfeasibility of a potential business relationship shall be construed as to prevent either party from pursuing similar discussions with third parties in\nsimilar markets or obligate either party to take, continue or forgo any action relating to the above-mentioned discussions. Further, nothing in this\nAgreement shall be construed as prohibiting or restricting either party from independently developing, acquiring, and marketing products,\nservices, and other materials, which are similar to or competitive In any geographic area and in any form with the other party’s product(s) or\nservice(s). However, this paragraph shall not be deemed to grant to either party any license under the other party’s copyrights or patents.\n7. During the one year period commencing on the date of this Agreement, the Company will not solicit or seek to employ any key\nemployee or executive officer of Actuate or any subsidiary or other affiliate of Actuate with whom the Company had contact or became aware of\nin connection with the possible transaction; provided, however, that the foregoing provisions shall not prohibit the solicitation or employment of\nany such person (i) resulting from general advertisements for employment conducted by the Company (including any recruitment efforts\nconducted by any recruitment agency, provided that the Company has not directed such recruitment efforts at such person), (ii) if such person\napproaches the Company on an unsolicited basis or (iii) following the cessation of such person’s employment with Actuate without any\nsolicitation or encouragement by the Company.\n8. From the date of this Agreement until May 31, 2015 (the “Standstill Period”) the Company will not, in any manner, directly or indirectly\nthrough any third party:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Actuate or any securities of\nany subsidiary or other affiliate of Actuate, (ii) any acquisition of any assets of Actuate or any assets of any subsidiary or other affiliate of\nActuate, (iii) any tender offer, exchange offer, merger. business combination, recapitalization, restructuring, liquidation, dissolution or\nextraordinary transaction involving Actuate or any subsidiary or other affiliate of Actuate, or involving any securities or assets of Actuate or any\nsecurities or assets of any subsidiary or other affiliate of Actuate, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules\nof the Securities and Exchange Commission) or consents with respect to any securities of Actuate;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Actuate;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Actuate;\n(d) take any action that might require Actuate to make a public announcement regarding any of the types of matters set forth in clause “(a)”\nof this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a) “, “(b)”, “(c)”\nor “(d)” of this sentence; or\n(f) assist, induce or encourage any other individual and any corporation, partnership, entity, group, tribunal or governmental authority\n(“Person”) to take any action of the type referred to In clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this sentence.\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\nNotwithstanding the foregoing, the Company is permitted to purchase any securities that does not in any event result in an aggregate ownership\nby the Company of more than 5% of the outstanding amount of any class of securities of Actuate or of any subsidiary or other affiliate of\nActuate. Further, and notwithstanding the foregoing, the Company shall not be prohibited from (i) making any proposal to the board of directors\nof Actuate, which would not reasonably be expected to require a public announcement by Actuate or (ii) requesting that Actuate, directly or\nindirectly, waive or amend any of the provisions of this Section 8. Finally, and notwithstanding the foregoing, Actuate acknowledges and agrees\nthat any non-disclosure agreement it or its affiliates have entered into or will enter into with a Person to explore a potential transaction for the\nsale of more than 50% of the outstanding voting equity securities of Actuate, or a sale of substantially all of the assets of Actuate, has or will\nhave “standstill” provisions similar or substantially similar to the provisions set forth above in this Section 8 applicable to the Company.\n9. This Agreement shall expire and cease to have any force or effect on the earlier of (i) eighteen months from the date hereof or (ii) the\ndate of consummation of a transaction between the parties.\n10. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal,\ninvalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise\nremain in full force and effect. This Agreement shall be governed by the law of the State of California without regard to the conflicts of law\nprovisions thereof. This Agreement supersedes all prior discussions and writings and constitutes the entire agreement between the parties with\nrespect to the subject matter hereof. The prevailing party in any action to enforce this Agreement shall be entitled to reasonable costs and\nattorneys’ fees. No waiver or modification of this Agreement will be binding upon either party unless made in writing and signed by a duly\nauthorized representative of such party and no failure or delay in enforcing any right will be deemed a waiver.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year set forth below.\n[Signature page follows. ]\nDate: July 24, 2014\nACTUATE CORPORATION\nBy: /s/ Thomas McKeever\nName: Thomas McKeever\nTitle: SVP, GC, Corp. Dev. & Sec. OPEN TEXT CORPORATION\nBy: /s/ Gordon A. Davies\nName: Gordon A. Davies\nTitle: Chief L.egal Officer &\nCorporate Secretary	EX-3 2 d838170dex3.htm EX-3\nExhibit 3\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (the "Agreement") is made by and between Actuate Corporation, a Delaware corporation with its\nprincipal place of business located at 951 Mariners Island Boulevard, San Mateo, CA 94404 ("Actuate"), and Open Text Corporation, a\ncorporation incorporated pursuant to the laws of Canada, with its principal place of business located at 275 Frank Tompa Drive, Waterloo, ON\nN2L OA1 ("Company"). Actuate and Company intend to discuss a potential business relationship.\nEach undersigned party (the "Receiving Party") and their respective directors, officers, employees, agents, or advisors (including, without\nlimitation, legal advisors, accountants, consultants, bankers, and financial advisors) and potential sources of financing (collectively,\n"Representatives") understands that during these discussions the other party (the "Disclosing Party") may disclose Proprietary Information (as\ndefined herein) relating to the Disclosing Party's business.\nIn consideration of the parties' discussions and any access the Receiving Party may have to Proprietary Information of the Disclosing Party, the\nReceiving Party hereby agrees as follows:\n1. As used herein, the term "Proprietary Information" refers to any and all Information of a confidential, proprietary, or secret nature which\nis applicable to or related In any way to (i) the business, present or future, of the Disclosing Party, (ii) the research and development or\ninvestigations of the Disclosing Party or (iii) the business of any customer of the Disclosing Party; provided, in each case, that such information\nis delivered to the Receiving Party by the Disclosing Party and (a) is marked or identified in writing as "Confidential" (b) if verbal or visual\ndisclosure, is identified as "Confidential" in a writing within ten (10) business days of such disclosure, or (c) is information that the Receiving\nParty actually knew or reasonably should have known was confidential. Proprietary Information may include, for example and without\nlimitation, the product offering, content partners, product pricing, product availability, computer programs, technical drawings, algorithms,\nprocesses, ideas, schematics, trade secrets, processes, formulas, data, know-how, improvements, inventions (whether patentable or not),\ntechniques, marketing plans, forecasts and strategies, and information concerning customers or vendors. Proprietary Information shall also\ninclude all information of a like nature owned by any other person and furnished to the Disclosing Party by such other person pursuant to\nan\nundertaking by the Disclosing Party to maintain the same in confidence.\n2. The Receiving Party agrees (a) to hold the Disclosing Party's Proprietary Information In strict confidence and to take all reasonable\nprecautions to protect such Proprietary Information (including, without limitation, all precautions that Receiving Party employs with respect\nto\nits confidential materials), (b) not to divulge any such Proprietary Information or any information derived therefrom to any third person without\nprior written permission of the Disclosing Party, excluding disclosure to Representatives, (c) not to make any use whatsoever at any time of such\nProprietary Information except to evaluate internally whether to enter into the contemplated business relationship with the Disclosing Party, and\n(d) not to copy or reverse engineer any such Proprietary Information. Any employee given access to any such Proprietary Information must have\na legitimate "need to know" and be subject to restrictions on disclosure of Proprietary Information practically identical to the terms set forth\nherein. Without granting any right or license, the Disclosing Party agrees that the foregoing clauses (a), (b) and (c) shall not apply with respect to\nany information that (i) is or (through no improper action or inaction by the Receiving Party or any agent, consultant or employee) becomes\ngenerally available to the public, or (ii) was or is rightfully in Receiving Party's possession or the possession of any of its Representatives or was\nknown by it or its Representatives without restriction prior to receipt from the Disclosing Party, or (iii) was or is rightfully disclosed to Receiving\nParty or any of its Representatives by a third party provided the Receiving Party complies with restrictions imposed by the third party, or (iv) was\nor is independently developed without\nuse of any Proprietary Information of the Disclosing Party. The Receiving Party and its Representatives may make disclosures required by court\norder or any legal or judicial process, without any liability hereunder, provided the Receiving Party uses reasonable efforts to limit disclosure and\nto obtain confidential treatment or a protective order and has allowed the Disclosing Party to participate In the proceeding to the extent legally\npermissible and reasonably practicable.\n3. Promptly upon receipt of a written request by the Disclosing Party at any time (which will be effective if actually received or three days\nafter mailed first class postage prepaid to the Receiving Party's address herein), the Receiving Party will turn over to the Disclosing Party, or, at\nits sole discretion, destroy and certify to the Receiving party in writing the destruction of all Proprietary Information of the Disclosing Party and\nall documents or media containing any such Proprietary Information and any and all copies or extracts thereof; provided, however, the Company\nand its Representatives shall not be obligated to return or destroy Proprietary Information to the extent otherwise required by law, regulation, rule\nor practice governing professionals or any internal compliance policy or procedure required by law, regulation rule of practice governing\nprofessionals. The Receiving Party understands that nothing requires the Disclosing Party to proceed with any proposed transaction or\nrelationship in connection with which Proprietary Information may be disclosed.\n4. Except to the extent required by law, neither party shall disclose the existence or subject matter of the negotiations or business\nrelationship contemplated by this Agreement.\n5. The parties acknowledge and agree that due to the unique nature of the possible transaction between the parties, there can be no adequate\nremedy at law for any material breach of this Agreement, that any such breach may allow the breaching party or third parties to unfairly compete\nwith the non-breaching party, resulting in irreparable harm to the non-breaching party, and therefore, that upon any such breach or any threat\nthereof, the non-breaching party shall be entitled to seek appropriate equitable relief in addition to whatever remedies it might have at law.\nThe\nReceiving Party will notify the Disclosing Party In writing immediately upon the occurrence of any unauthorized release or other breach\nof\nwhich it is aware.\n6. The parties expressly agree that neither the terms or conditions of this Agreement, nor the discussions held by the parties to address the\nfeasibility\nof\na\npotential\nbusiness\nrelationship\nshall\nbe\nconstrued\nas\nto\nprevent\neither\nparty\nfrom\npursuing\nsimilar\ndiscussions\nwith\nthird\nparties\nin\nsimilar markets or obligate either party to take, continue or forgo any action relating to the above-mentioned discussions. Further, nothing in this\nAgreement shall be construed as prohibiting or restricting either party from independently developing, acquiring, and marketing products,\nservices, and other materials, which are similar to or competitive In any geographic area and in any form with the other party's product(s)\nor\nservice(s). However, this paragraph shall not be deemed to grant to either party any license under the other party's copyrights or patents.\n7. During the one year period commencing on the date of this Agreement, the Company will not solicit or seek to employ any key\nemployee or executive officer of Actuate or any subsidiary or other affiliate of Actuate with whom the Company had contact or became aware of\nin connection with the possible transaction; provided, however, that the foregoing provisions shall not prohibit the solicitation or employment\nof\nany such person (i) resulting from general advertisements for employment conducted by the Company (including any recruitment efforts\nconducted by any recruitment agency, provided that the Company has not directed such recruitment efforts at such person), (ii) if such person\napproaches the Company on an unsolicited basis or (iii) following the cessation of such person's employment with Actuate without any\nsolicitation or encouragement by the Company.\n8. From the date of this Agreement until May 31 2015 (the "Standstill Period") the Company will not, in any manner, directly or indirectly\nthrough any third party:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Actuate or any securities\nof\nany subsidiary or other affiliate of Actuate, (ii) any acquisition of any assets of Actuate or any assets of any subsidiary or other affiliate\nof\nActuate, (iii) any tender offer, exchange offer, merger. business combination, recapitalization, restructuring, liquidation, dissolution or\nextraordinary transaction involving Actuate or any subsidiary or other affiliate of Actuate, or involving any securities or assets of Actuate or any\nsecurities or assets of any subsidiary or other affiliate of Actuate, or (iv) any "solicitation" of "proxies" (as those terms are used in the proxy rules\nof the Securities and Exchange Commission) or consents with respect to any securities of Actuate;\n(b) form, join or participate in a "group" (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Actuate;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Actuate;\n(d) take any action that might require Actuate to make a public announcement regarding any of the types of matters set forth in clause "(a)"\nof this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause "(a) "(b)", "(c)"\nor "(d)" of this sentence; or\n(f) assist, induce or encourage any other individual and any corporation, partnership, entity, group, tribunal or governmental authority\n("Person") to take any action of the type referred to In clause "(a)", "(b)", "(c)", "(d)" or "(e)" of this sentence.\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\nNotwithstanding the foregoing, the Company is permitted to purchase any securities that does not in any event result in an aggregate ownership\nby the Company of more than 5% of the outstanding amount of any class of securities of Actuate or of any subsidiary or other affiliate of\nActuate. Further, and notwithstanding the foregoing, the Company shall not be prohibited from (i) making any proposal to the board of directors\nof Actuate, which would not reasonably be expected to require a public announcement by Actuate or (ii) requesting that Actuate, directly or\nindirectly, waive or amend any of the provisions of this Section 8. Finally, and notwithstanding the foregoing, Actuate acknowledges and agrees\nthat any non-disclosure agreement it or its affiliates have entered into or will enter into with a Person to explore a potential transaction for the\nsale of more than 50% of the outstanding voting equity securities of Actuate, or a sale of substantially all of the assets of Actuate, has or will\nhave "standstill" provisions similar or substantially similar to the provisions set forth above in this Section 8 applicable to the Company.\n9. This Agreement shall expire and cease to have any force or effect on the earlier of (i) eighteen months from the date hereof or (ii) the\ndate of consummation of a transaction between the parties.\n10. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal,\ninvalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise\nremain in full force and effect. This Agreement shall be governed by the law of the State of California without regard to the conflicts of law\nprovisions thereof. This Agreement supersedes all prior discussions and writings and constitutes the entire agreement between the parties with\nrespect to the subject matter hereof. The prevailing party in any action to enforce this Agreement shall be entitled to reasonable costs and\nattorneys' fees. No waiver or modification of this Agreement will be binding upon either party unless made in writing and signed by a duly\nauthorized representative of such party and no failure or delay in enforcing any right will be deemed a waiver.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year set forth below.\n(Signature page follows.\nDate: July 24, 2014\nACTUATE CORPORATION\nOPEN TEXT CORPORATION\nBy: /s/ Thomas McKeever\nBy: /s/ Gordon A. Davies\nName: Thomas McKeever\nName: Gordon A. Davies\nTitle: SVP, GC, Corp. Dev. & Sec.\nTitle: Chief Legal Officer &\nCorporate Secretary	EX-3 2 d838170dex3.htm EX-3\nExhibit 3\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (the “Agreement”) is made by and between Actuate Corporation, a Delaware corporation with its\nprincipal place of business located at 951 Mariners Island Boulevard, San Mateo, CA 94404 (“Actuate”), and Open Text Corporation, a\ncorporation incorporated pursuant to the laws of Canada, with its principal place of business located at 275 Frank Tompa Drive, Waterloo, ON\nN2L OA1 (“Company”). Actuate and Company intend to discuss a potential business relationship.\nEach undersigned party (the “Receiving Party”) and their respective directors, officers, employees, agents, or advisors (including, without\nlimitation, legal advisors, accountants, consultants, bankers, and financial advisors) and potential sources of financing (collectively,\n“Representatives”) understands that during these discussions the other party (the “Disclosing Party’’) may disclose Proprietary Information (as\ndefined herein) relating to the Disclosing Party’s business.\nIn consideration of the parties’ discussions and any access the Receiving Party may have to Proprietary Information of the Disclosing Party, the\nReceiving Party hereby agrees as follows:\n1. As used herein, the term “Proprietary Information” refers to any and all Information of a confidential, proprietary, or secret nature which\nis applicable to or related In any way to (i) the business, present or future, of the Disclosing Party, (ii) the research and development or\ninvestigations of the Disclosing Party or (iii) the business of any customer of the Disclosing Party; provided, in each case, that such information\nis delivered to the Receiving Party by the Disclosing Party and (a) is marked or identified in writing as “Confidential”, (b) if verbal or visual\ndisclosure, is identified as “Confidential” in a writing within ten (10) business days of such disclosure, or (c) is information that the Receiving\nParty actually knew or reasonably should have known was confidential. Proprietary Information may include, for example and without\nlimitation, the product offering, content partners, product pricing, product availability, computer programs, technical drawings, algorithms,\nprocesses, ideas, schematics, trade secrets, processes, formulas, data, know-how, improvements, inventions (whether patentable or not),\ntechniques, marketing plans, forecasts and strategies, and information concerning customers or vendors. Proprietary Information shall also\ninclude all information of a like nature owned by any other person and furnished to the Disclosing Party by such other person pursuant to an\nundertaking by the Disclosing Party to maintain the same in confidence.\n2. The Receiving Party agrees (a) to hold the Disclosing Party’s Proprietary Information In strict confidence and to take all reasonable\nprecautions to protect such Proprietary Information (including, without limitation, all precautions that Receiving Party employs with respect to\nits confidential materials), (b) not to divulge any such Proprietary Information or any information derived therefrom to any third person without\nprior written permission of the Disclosing Party, excluding disclosure to Representatives, (c) not to make any use whatsoever at any time of such\nProprietary Information except to evaluate internally whether to enter into the contemplated business relationship with the Disclosing Party, and\n(d) not to copy or reverse engineer any such Proprietary Information. Any employee given access to any such Proprietary Information must have\na legitimate “need to know” and be subject to restrictions on disclosure of Proprietary Information practically identical to the terms set forth\nherein. Without granting any right or license, the Disclosing Party agrees that the foregoing clauses (a), (b) and (c) shall not apply with respect to\nany information that (i) is or (through no improper action or inaction by the Receiving Party or any agent, consultant or employee) becomes\ngenerally available to the public, or (ii) was or is rightfully in Receiving Party’s possession or the possession of any of its Representatives or was\nknown by it or its Representatives without restriction prior to receipt from the Disclosing Party, or (iii) was or is rightfully disclosed to Receiving\nParty or any of its Representatives by a third party provided the Receiving Party complies with restrictions imposed by the third party, or (iv) was\nor is independently developed without\nuse of any Proprietary Information of the Disclosing Party. The Receiving Party and its Representatives may make disclosures required by court\norder or any legal or judicial process, without any liability hereunder, provided the Receiving Party uses reasonable efforts to limit disclosure and\nto obtain confidential treatment or a protective order and has allowed the Disclosing Party to participate In the proceeding to the extent legally\npermissible and reasonably practicable.\n3. Promptly upon receipt of a written request by the Disclosing Party at any time (which will be effective if actually received or three days\nafter mailed first class postage prepaid to the Receiving Party’s address herein), the Receiving Party will turn over to the Disclosing Party, or, at\nits sole discretion, destroy and certify to the Receiving party in writing the destruction of all Proprietary Information of the Disclosing Party and\nall documents or media containing any such Proprietary Information and any and all copies or extracts thereof; provided, however, the Company\nand its Representatives shall not be obligated to return or destroy Proprietary Information to the extent otherwise required by law, regulation, rule\nor practice governing professionals or any internal compliance policy or procedure required by law, regulation rule of practice governing\nprofessionals. The Receiving Party understands that nothing requires the Disclosing Party to proceed with any proposed transaction or\nrelationship in connection with which Proprietary Information may be disclosed.\n4. Except to the extent required by law, neither party shall disclose the existence or subject matter of the negotiations or business\nrelationship contemplated by this Agreement.\n5. The parties acknowledge and agree that due to the unique nature of the possible transaction between the parties, there can be no adequate\nremedy at law for any material breach of this Agreement, that any such breach may allow the breaching party or third parties to unfairly compete\nwith the non-breaching party, resulting in irreparable harm to the non-breaching party, and therefore, that upon any such breach or any threat\nthereof, the non-breaching party shall be entitled to seek appropriate equitable relief in addition to whatever remedies it might have at law. The\nReceiving Party will notify the Disclosing Party In writing immediately upon the occurrence of any unauthorized release or other breach of\nwhich it is aware.\n6. The parties expressly agree that neither the terms or conditions of this Agreement, nor the discussions held by the parties to address the\nfeasibility of a potential business relationship shall be construed as to prevent either party from pursuing similar discussions with third parties in\nsimilar markets or obligate either party to take, continue or forgo any action relating to the above-mentioned discussions. Further, nothing in this\nAgreement shall be construed as prohibiting or restricting either party from independently developing, acquiring, and marketing products,\nservices, and other materials, which are similar to or competitive In any geographic area and in any form with the other party’s product(s) or\nservice(s). However, this paragraph shall not be deemed to grant to either party any license under the other party’s copyrights or patents.\n7. During the one year period commencing on the date of this Agreement, the Company will not solicit or seek to employ any key\nemployee or executive officer of Actuate or any subsidiary or other affiliate of Actuate with whom the Company had contact or became aware of\nin connection with the possible transaction; provided, however, that the foregoing provisions shall not prohibit the solicitation or employment of\nany such person (i) resulting from general advertisements for employment conducted by the Company (including any recruitment efforts\nconducted by any recruitment agency, provided that the Company has not directed such recruitment efforts at such person), (ii) if such person\napproaches the Company on an unsolicited basis or (iii) following the cessation of such person’s employment with Actuate without any\nsolicitation or encouragement by the Company.\n8. From the date of this Agreement until May 31 , 2015 (the “Standstill Period”) the Company will not, in any manner, directly or indirectly\nthrough any third party:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Actuate or any securities of\nany subsidiary or other affiliate of Actuate, (ii) any acquisition of any assets of Actuate or any assets of any subsidiary or other affiliate of\nActuate, (iii) any tender offer, exchange offer, merger. business combination, recapitalization, restructuring, liquidation, dissolution or\nextraordinary transaction involving Actuate or any subsidiary or other affiliate of Actuate, or involving any securities or assets of Actuate or any\nsecurities or assets of any subsidiary or other affiliate of Actuate, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules\nof the Securities and Exchange Commission) or consents with respect to any securities of Actuate;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Actuate;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Actuate;\n(d) take any action that might require Actuate to make a public announcement regarding any of the types of matters set forth in clause “(a)”\nof this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a) “, “(b)”, “(c)”\nor “(d)” of this sentence; or\n(f) assist, induce or encourage any other individual and any corporation, partnership, entity, group, tribunal or governmental authority\n(“Person”) to take any action of the type referred to In clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this sentence.\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\nNotwithstanding the foregoing, the Company is permitted to purchase any securities that does not in any event result in an aggregate ownership\nby the Company of more than 5% of the outstanding amount of any class of securities of Actuate or of any subsidiary or other affiliate of\nActuate. Further, and notwithstanding the foregoing, the Company shall not be prohibited from (i) making any proposal to the board of directors\nof Actuate, which would not reasonably be expected to require a public announcement by Actuate or (ii) requesting that Actuate, directly or\nindirectly, waive or amend any of the provisions of this Section 8. Finally, and notwithstanding the foregoing, Actuate acknowledges and agrees\nthat any non-disclosure agreement it or its affiliates have entered into or will enter into with a Person to explore a potential transaction for the\nsale of more than 50% of the outstanding voting equity securities of Actuate, or a sale of substantially all of the assets of Actuate, has or will\nhave “standstill” provisions similar or substantially similar to the provisions set forth above in this Section 8 applicable to the Company.\n9. This Agreement shall expire and cease to have any force or effect on the earlier of (i) eighteen months from the date hereof or (ii) the\ndate of consummation of a transaction between the parties.\n10. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal,\ninvalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise\nremain in full force and effect. This Agreement shall be governed by the law of the State of California without regard to the conflicts of law\nprovisions thereof. This Agreement supersedes all prior discussions and writings and constitutes the entire agreement between the parties with\nrespect to the subject matter hereof. The prevailing party in any action to enforce this Agreement shall be entitled to reasonable costs and\nattorneys’ fees. No waiver or modification of this Agreement will be binding upon either party unless made in writing and signed by a duly\nauthorized representative of such party and no failure or delay in enforcing any right will be deemed a waiver.\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year set forth below.\n[Signature page follows.]\nDate: July 24, 2014\nACTUATE CORPORATION\nBy: /s/ Thomas McKeever\nName: Thomas McKeever\nTitle: SVP, GC, Corp. Dev. & Sec.\nOPEN TEXT CORPORATION\nBy: /s/ Gordon A. Davies\nName: Gordon A. Davies\nTitle: Chief Legal Officer &\nCorporate Secretary
+7684f321eb08514fa1794427e73479b9.pdf	effective_date jurisdiction party term	EX-10.6 3 c00537exv10w6.htm REVISED FORM OF EXECUTIVE SEVERANCE/NON-COMPETE AGREEMENT\nExhibit 10.6\nEXECUTIVE SEVERANCE/NON-COMPETE AGREEMENT\nIn this Executive Severance/Non-Compete Agreement dated as of\n, 2005 (the “Agreement”), Sears Holdings Corporation and its\ncontrolled affiliates and subsidiaries (“Sears”), and\n(“Executive”), intending to be legally bound and for good and\nvaluable consideration, agree as follows:\n1. Severance Benefits.\n(a) Continuation of Compensation. In the event that (x) Executive’s employment is terminated by each Sears entity by which she is\nemployed (the “Company”) for any reason other than Cause (as defined below), death or Disability (as defined below) or (y) Executive’s\nemployment is terminated by Executive for Good Reason (as defined below), subject to the provisions of Sections 6(e) and (f) and 10 herein, the\nCompany shall pay to Executive his annual base salary as in effect immediately prior to the date of termination for a period of one (1) year;\nprovided that, in any event, Sears’ obligations under this clause 1 shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent\nthat Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment) during the Salary\nContinuation Period (as defined below). The amount described in Section 1(a) shall be paid on each regular payroll period following the date of\ntermination (the “Salary Continuation Period”) provided that if at the time that the executive terminates employment the executive is a “key\nemployee” or “specified employee” within the meaning of Code Section 409A and regulations issued thereunder, then, if necessary to comply\nwith Section 409A, payment to the executive shall not commence until six months after the executive’s termination of employment In addition to\nthe foregoing, a lump sum payment will be made to Executive within ten (10) days following the date of termination in an amount equal to the\nsum of any accrued base salary through the date of termination to the extent not theretofore paid and any vacation benefits that accrued prior to\nthe date of termination. No vacation will accrue after the date active employment ends. All salary continuation payments and benefits will\nterminate and forever lapse if Executive is employed by a “Sears Competitor” as defined in Section 6(b) herein.\n(b) Continuation of Benefits. During the Salary Continuation Period, Executive will be entitled to all benefits (other than as specified\nabove) for which Executive was eligible to participate prior to the end of active employment, with the exception of Long-Term Disability and\nFlexible Spending Accounts. Executive and eligible dependents shall be entitled to continue to participate in the Company’s medical and dental\nplans in accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”). The cost of such COBRA coverage for\nExecutive and his dependents will be subsidized by the Company, so that Executive will be paying the same premium for medical and dental\nplan coverage during the Salary Continuation Period as an active employee. However, in the event Executive becomes employed by another\nemployer and is covered by such employer’s health benefits plan or program, the medical and dental benefits provided by the Company\nhereunder shall be secondary to such employer’s health benefits plan or program in accordance with the terms of the Company’s health benefit\nplans.\n(c) Long-Term Performance Program. The Long Term Performance Incentive Program grant for any multi-year performance period will be\ntreated at termination of active employment in accordance with the provisions of its respective program document or grant letter.\n(d) Outplacement. From the date of termination pursuant to the first sentence of Section 1(a), Executive will be immediately eligible for\noutplacement services at the Company’s expense. The Company and Executive will mutually agree on which outplacement firm, among current\nvendors used by the Company, will provide these services. Such services will be provided for up to one (1) year from the beginning of the Salary\nContinuation Period or until employment is obtained, whichever occurs first.\n2. Definitions. For purposes of this Agreement, the following terms shall have the definitions as set forth below:\n(a) “Cause” shall mean (1) a material breach by Executive (other than a breach resulting from Executive’s incapacity due to a mental or\nphysical disability) of Executive’s duties and responsibilities which breach is demonstrably willful and deliberate on Executive’s part, is\ncommitted in bad faith or without reasonable belief that such breach is in the best interests of Sears and is not remedied in a reasonable period of\ntime after receipt of written notice from Sears specifying such breach, (2) the commission by Executive of a felony involving moral turpitude, or\n(3) dishonesty or willful misconduct in connection with Executive’s employment; and\n(b) “Disability” shall mean disability as defined under the long-term disability plan of Sears applicable to Executive.\n(c) “Good Reason” shall mean, without Executive’s written consent, (i) a reduction of more than 10% in the sum of Executive’s annual\nbase salary and target bonus from those in effect as of the date of this Agreement, (ii) a change in reporting relationship such that Executive\nreports to anyone other than the Chief Executive Officer, the Chairman of the Board, the Board of directors, (iii) a reduction in title or a material\ndiminution in duties, (iv) Executive’s mandatory relocation to an office more than 50 miles from the primary location at which Executive is\nrequired to perform Executive’s duties immediately prior to the date of this Agreement or (v) failure of a successor company to assume or fulfill\nthe obligations under this Agreement.\n3. Non-Disparagement. Executive will not take any actions detrimental to the interests of Sears, nor make derogatory statements, either\nwritten or oral to any third party, or otherwise publicly disparage Sears, its products, services, or present or former employees, officers or\ndirectors, and will not authorize others to make derogatory or disparaging statements on Executive’s behalf.\n4. Intellectual Property Rights. Executive acknowledges that Executive’s development, work or research on any and all inventions or\nexpressions of ideas, patentable or not, hereafter made or conceived solely or jointly within the scope of employment at Sears, provided such\ninvention or expression of an idea relates to the business of Sears, or relates to\n-2-\nSears actual or demonstrably anticipated research or development, or results from any work performed by Executive for or on behalf of Sears,\nare hereby assigned to Sears, including Executive’s entire rights, title and interest. Executive will promptly disclose such invention or expression\nof an idea to Executive’s management and will, upon request, promptly execute a specific written assignment of title to Sears. If Executive\ncurrently holds any inventions or expressions of an idea, regardless of whether they were published or filed with the U.S. Patent and Trademark\nOffice, or is under contract to not so assign, Executive will list them on the last page of this Agreement.\n5. Confidentiality. Executive agrees that the existence and terms of the Agreement, including the compensation paid to Executive, and\ndiscussions with Sears regarding this Agreement, shall be considered confidential and shall not be disclosed or communicated in any manner\nexcept: (a) as required by law or legal process; (b) to Executive’s spouse, domestic partner, or financial/legal advisors, all of whom shall agree to\nkeep such information confidential.\n6. Protective Covenants. Executive acknowledges that this Agreement provides for additional consideration beyond what Sears is otherwise\nobligated to pay. In consideration of the opportunity for severance benefits and special payments specified above, and other good and valuable\nconsideration, Executive agrees to the following:\n(a) Non-Disclosure and Non-Solicitation. Executive acknowledges that Executive has previously or has simultaneously executed and\nwill continue to be bound by an Executive Non-Disclosure and Non-Solicitation of Employees Agreement, which agreement sets\nforth, among other things, the definition of Sears Confidential Information and is incorporated by reference herein.\n(b) Non-Competition. Executive acknowledges that as a result of Executive’s position at Sears, Executive has learned or developed, or\nwill learn or develop, Sears Confidential Information and that use or disclosure of such Confidential Information is likely to occur\nif Executive were to render advice or services to any Sears Competitor.\ni. Therefore, for one (1) year from Executive’s last day of active employment, whether or not Executive receives severance\nbenefits pursuant to Section 1 hereto (“Severance Pay”), Executive will not, directly or indirectly, aid, assist, participate in,\nconsult with, render services for, accept a position with, become employed by, or otherwise enter into any relationship with\n(other than having a passive ownership interest in or being a customer of) any Sears Competitor.\nii. For purposes of this Agreement, “Sears Competitor” means\n1. Those companies listed on Appendix A, each of which Executive acknowledges is a Sears Competitor, whether or\n-3-\nnot it falls within the categories in (2), below, and further acknowledges that this is not an exclusive list of Sears\nCompetitors and is not intended to limit the generality of subsection 6(b)(ii)(2), below, and\n2. Any party (A) engaged in any retail business (whether in a department store, specialty store, discount store, direct\nmarketing, or electronic commerce or other business format), that consists of selling furniture, appliances, electronics,\nhardware, auto parts and/or apparel products, or providing home improvement, product repair and/or home services,\nwith combined annual revenue in excess of $500 million, (B) any vendor with combined annual gross sales of services\nor merchandise to Sears in excess of $100 million, or (C) a party engaged in any other line of business, in which Sears\nhas commenced business prior to the end of Executive’s active employment, with Sears having annual gross sales in\nthat line of business in excess of $50 million.\niii. Executive acknowledges that Sears shall have the right to propose modifications to Appendix B periodically to include\n(1) emergent Competitors in Sears existing lines of business and (2) Competitors in lines of business that are new for Sears\nwith the prior written consent of Executive, which shall not be unreasonably withheld.\niv. Executive further acknowledges that Sears does business throughout the United States, Puerto Rico and Canada and that this\nnon-compete provision applies in any state of the United States, Puerto Rico or province of Canada in which Sears does\nbusiness.\n(c) Executive will provide Sears with such information as Sears may from time to time reasonably request to determine Executive’s\ncompliance with this Agreement. Executive authorizes Sears to contact Executive’s future employers and other entities with which Executive has\nany business relationship to determine Executive’s compliance with this Agreement or to communicate the contents of this Agreement to such\nemployers and entities. Executive releases Sears, its agents and employees, from all liability for any damage arising from any such contacts or\ncommunications.\n(d) Executive agrees that the restrictions set forth above are necessary to prevent the use and disclosure of Sears Confidential Information\nand to otherwise protect the legitimate business interests of Sears. Executive further agrees and acknowledges that the provisions of this\nAgreement are reasonable.\n(e) Upon the termination of Executive’s employment by either party, Executive will execute a binding General Release and Waiver of\nclaims in a form to be provided by Sears, which is incorporated by reference herein. This General Release and Waiver will be in\n-4-\na form substantially similar to the attached sample. If the General Release and Waiver is not signed or is signed but subsequently revoked,\nExecutive will not receive Severance Pay (if any) or any other benefits due under this Agreement.\n(f) Executive acknowledges that irreparable harm would result from any breach or threatened breach by Executive of the provisions of this\nAgreement, and monetary damages alone would not provide adequate relief for any such breach. Accordingly, if Executive breaches or threatens\nto breach this Agreement, Executive consents to injunctive relief in favor of Sears without the necessity of Sears posting bond. Moreover, any\naward of injunctive relief shall not preclude Sears from seeking or recovering any lawful compensatory damages which may have resulted from a\nbreach of this Agreement, including a forfeiture of any payments not yet made and a return of any payments already received by Executive.\n(g) Any waiver, or failure to seek enforcement or remedy for any breach or suspected breach, of any provision of this Agreement by Sears\nor Executive in any instance shall not be deemed a waiver of such provision in the future,\n(h) Executive may request (i) a waiver of the non-competition provisions of this Agreement or (ii) that the time frame in Section 6(b),\nabove, commence during Executive’s continued employment with Sears, by written request to the Chief Executive Officer of Sears or the\nequivalent. Such a request will be given reasonable consideration and may be granted, in whole or in part, or denied at Sears’ absolute discretion.\n7. Except as specifically provided in paragraphs (a) and (b) of Section 1 and Sections 6(e) and (f) and 10, such compensation and benefits\nshall not be reduced whether or not Executive obtains other employment (it being agreed, however, that Executive shall be obligated to seek\nother employment).\n8. Executive agrees, without receiving additional compensation, to fully and completely cooperate with Sears, both during and after the period\nof active employment, in all investigations, potential litigation or litigation in which Sears is involved or may become involved other than any\nsuch investigations, potential litigation or litigation between Sears and Executive. Sears will reimburse Executive for reasonable travel and out-\nof-pocket expenses incurred in connection with any such investigations, potential litigation or litigation.\n9. Executive agrees that both during and after the period of active employment with Sears, Executive will not voluntarily act as a witness,\nconsultant or expert for any person or party in any action against or involving Sears or any corporate relative of Sears, unless subject to judicial\nenforcement to appear as a fact witness only.\n10. In the event of a breach by Executive of any of the provisions of this Agreement, including but not limited to the non-disparagement\nprovision (Section 3 herein), and the non-competition provisions (Section 6 herein) of this Agreement, Sears obligation to make salary\ncontinuation or any other payments under this Agreement will immediately cease.\n11. If any provision(s) of this Agreement shall be found invalid, illegal, or unenforceable, in whole or in part, then such provision(s) shall be\nmodified or restricted so as to effectuate as nearly as possible in a valid and enforceable way the provisions hereof, or shall be\n-5-\ndeemed excised from this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent\npermitted by law, as if such provision(s) had been originally incorporated herein as so modified or restricted or as if such provision(s) had not\nbeen originally incorporated herein, as the case may be.\n12. This Agreement will be governed under the internal laws of the state of Illinois without regard to principles of conflicts of laws. Executive\nagrees that the state and federal courts located in the state of Illinois shall have exclusive jurisdiction in any action, Suit or proceeding based on\nor arising out of this Agreement, and Executive hereby: (a) submits to the personal jurisdiction of such courts; (b) consents to the service of\nprocess in connection with any action, suit, or proceeding against Executive; and (c) waives any other requirement (whether imposed by statute,\nrule of court, or otherwise) with respect to personal jurisdiction, venue or service of process.\n13. Executive agrees to waive any right to a jury trial on any claim contending that this Agreement or the General Release and Waiver is\nillegal or unenforceable in whole or in part, and Executive agrees to try any claims brought in a court or tribunal without use of a jury or advisory\njury. Further, should any claim arising out of Executive’s employment or termination of employment be found by a court or tribunal of competent\njurisdiction to not be released by the General Release and Waiver, Executive agrees to try such claim to the court or tribunal without use of a jury\nor advisory jury.\n14. This Agreement does not constitute a contract of employment, and Executive acknowledges that Executive’s employment with Sears is\nterminable “at-will” by either party with or without cause and with or without notice.\n15. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Sears document, then the provisions\nof this Agreement will control. Executive shall not be eligible for any benefits under the Sears Transition Pay Plan or any successor severance\nplan or program. This Agreement will supersede any prior agreement between Executive and Sears with respect to the subject matter contained\nherein (with the exception of the Executive Non-Disclosure and Non-Solicitation of Employees Agreement dated\n,200 _)andmay\nbe amended only by a writing signed by an authorized officer of Sears.\n16. All compensation paid or provided to Executive under this Agreement shall be subject to any applicable federal, state or local income and\nemployment tax withholding requirements.\n17. Sears may assign its rights under this Agreement to any successor in interest, whether by merger, consolidation, sale of assets, or\notherwise. This Agreement shall be binding whether it is between Sears and Executive or between any successor or assignee of Sears or affiliate\nthereof and Executive.\n18. This Agreement may be executed in one or more counterparts, which together shall constitute a valid and binding agreement.\nIN WITNESS WHEREOF, Executive and Sears, by its duly authorized representative, have executed this Agreement effective as of the date\nset forth below.\nSEARS HOLDINGS CORPORATION\nBY:\nEXECUTIVE\nDate\nDate\n-6-\nNOTICE: YOU MAY CONSIDER THIS GENERAL RELEASE AND WAIVER FOR UP TO TWENTY-ONE (21) DAYS. IF YOU\nDECIDE TO SIGN IT, YOU MAY REVOKE THE GENERAL RELEASE AND WAIVER WITHIN SEVEN (7) DAYS AFTER\nSIGNING. ANY REVOCATION WITHIN THIS PERIOD MUST BE IMMEDIATELY SUBMITTED IN WRITING TO GENERAL\nCOUNSEL, SEARS HOLDINGS CORPORATION, 3333 BEVERLY ROAD, HOFFMAN ESTATES, IL 60179. YOU MAY WISH TO\nCONSULT WITH AN ATTORNEY BEFORE SIGNING THIS DOCUMENT.\nGENERAL RELEASE AND WAIVER\nIn consideration for the benefits that I will receive under the attached Executive Severance/Non-Compete Agreement, I and any person acting\nby, through, or under me hereby release, waive, and forever discharge Sears Holdings Corporation, its current and former agents, subsidiaries,\naffiliates, employees, officers, shareholders, successors, and assigns (“Sears”) from any and all liability, actions, charges, causes of action,\ndemands, damages, or claims for relief or remuneration of any kind whatsoever, whether known or unknown at this time, arising out of, or\nconnected with, my employment with Sears and the termination of my employment, including, but not limited to, all matters in law, in equity, in\ncontract (oral or written, express or implied), or in tort, or pursuant to statute, including any claim for age or other typos of discrimination under\nthe Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, or other federal, state,\nor local law or ordinance, to the fullest extent permitted under the law, including the Employee Retirement Income Security Act. This General\nRelease and Waiver does not apply to any claims or rights that may arise after the date that I signed this General Release and Waiver. I\nunderstand that Sears is not admitting to any violation of my rights or any duty or obligation owed to me.\nExcluded from this General Release and Waiver are my claims which cannot be waived by law, including but not limited to (1) the right to file\na charge with or participate in an investigation conducted by certain government agencies, (2) any rights or claims to benefits accrued under\nbenefit plans maintained by Sears pursuant to ERISA, and (3) any claims that cannot be waived under the Fair Labor Standards Act or Family\nand Medical Leave Act. I do, however, waive my right to any monetary recovery should any agency pursue any claims on my behalf. I represent\nand warrant that I have not filed any complaint, charge, or lawsuit against Sears with any governmental agency and/or any court.\nIn addition, I agree never to sue Sears in any forum for any claim covered by this General Release and Waiver except that I may bring a claim\nunder the ADEA to challenge this General Release and Waiver. If I violate this General Release and Waiver by suing Sears, other than under\nADEA, I shall be liable to Sears for its reasonable attorney’s fees and other litigation costs and expenses incurred in defending against such a\nsuit.\nI have read this General Release and Waiver and I understand its legal and binding effect. I am acting voluntarily and of my own free will in\nexecuting this General Release and Waiver.\nI have had the opportunity to seek, and I was advised in writing to seek, legal counsel prior to signing this General Release and Waiver.\nI was given at least twenty-one (21) days to consider signing this General Release and Waiver. Any immaterial modification of this General\nRelease and Waiver does not restart the twenty-one (21) day consideration period.\nI understand that, if I sign the General Release and Waiver, I can change my mind and revoke it within seven (7) days after signing it by\nnotifying the General Counsel of Sears in writing at Sears Holdings Corporation, 3333 Beverly Road, Hoffman Estates, Illinois 60179. I\nunderstand that this General Release and Waiver will not be effective until after this seven (7) day revocation period has expired.\nDate: SAMPLE ONLY — DO NOT SIGN\nSigned by: SAMPLE ONLY — DO NOT SIGN\nWitness by:\n-7-\nExecutive:\nDate:\n, 2005\nAppendix A\nto Executive Severance/Non-Compete Agreement\nIn addition to all companies otherwise meeting the definition of “Sears Competitor” in Section 6(b)(ii)(2) of the Executive Severance/Non-\nCompete Agreement to which this Appendix A is attached, the following companies are “Sears Competitors” for purposes of that Section 6(b)(i):\nRetail\nHome/Product Services\nDepartment Stores\nAce Hardware Corporation\nDillard’s, Inc.\nTruServe Corporation\nFederated Department Stores, Inc.\nLowe’s Companies, Inc.\nJ. C. Penney Company, Inc.\nMenard, Inc.\nKohls’ Corporation\nThe Home Depot, Inc.\nThe May Department Stores Company\nMervyn’s\nSaks Incorporated\nDiscount Stores\nOther\nKohl’s Corporation\nMaytag Corporation\nTarget Corporation\nWhirlpool Corporation\nWal-Mart Stores, Inc.\nThe ServiceMaster Company\nSpecialty Stores\nAutoZone, Inc.\nBed Bath & Beyond Inc.\nBest Buy Co., Inc.\nCarMax, Inc.\nCircuit City Stores, Inc.\nCompUSA Inc. (eliminate hyphen)\nFinlay Enterprises, Inc. (Jewelry)\nGap Inc.\nLimited Brands, Inc.\nLinens ‘n Things, Inc.\nOffice Depot, Inc.\nThe Pep Boys – Manny, Moe & Jack\nPier 1 Imports, Inc.\nTandy Brands Accessories, Inc.\nZale Corporation\n-8-	EX-10.6 3 c00537exv10w6.htm REVISED FORM OF EXECUTIVE SEVERANCE/NON-COMPETE AGREEMENT\nExhibit 10.6\nEXECUTIVE SEVERANCE/NON-COMPETE AGREEMENT\nIn this Executive Severance/Non-Compete Agreement dated as of , 2005 (the “Agreement”), Sears Holdings Corporation and its\ncontrolled affiliates and subsidiaries (“Sears”), and (“Executive”), intending to be legally bound and for good and\nvaluable consideration, agree as follows:\n1. Severance Benefits.\n(a) Continuation of Compensation. In the event that (x) Executive’s employment is terminated by each Sears entity by which she is\nemployed (the “Company”) for any reason other than Cause (as defined below), death or Disability (as defined below) or (y) Executive’s\nemployment is terminated by Executive for Good Reason (as defined below), subject to the provisions of Sections 6(e) and (f) and 10 herein, the\nCompany shall pay to Executive his annual base salary as in effect immediately prior to the date of termination for a period of one (1) year;\nprovided that, in any event, Sears’ obligations under this clause 1 shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent\nthat Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment) during the Salary\nContinuation Period (as defined below). The amount described in Section 1(a) shall be paid on each regular payroll period following the date of\ntermination (the “Salary Continuation Period”) provided that if at the time that the executive terminates employment the executive is a “key\nemployee” or “specified employee” within the meaning of Code Section 409A and regulations issued thereunder, then, if necessary to comply\nwith Section 409A, payment to the executive shall not commence until six months after the executive’s termination of employment In addition to\nthe foregoing, a lump sum payment will be made to Executive within ten (10) days following the date of termination in an amount equal to the\nsum of any accrued base salary through the date of termination to the extent not theretofore paid and any vacation benefits that accrued prior to\nthe date of termination. No vacation will accrue after the date active employment ends. All salary continuation payments and benefits will\nterminate and forever lapse if Executive is employed by a “Sears Competitor” as defined in Section 6(b) herein.\n(b) Continuation of Benefits. During the Salary Continuation Period, Executive will be entitled to all benefits (other than as specified\nabove) for which Executive was eligible to participate prior to the end of active employment, with the exception of Long-Term Disability and\nFlexible Spending Accounts. Executive and eligible dependents shall be entitled to continue to participate in the Company’s medical and dental\nplans in accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”). The cost of such COBRA coverage for\nExecutive and his dependents will be subsidized by the Company, so that Executive will be paying the same premium for medical and dental\nplan coverage during the Salary Continuation Period as an active employee. However, in the event Executive becomes employed by another\nemployer and is covered by such employer’s health benefits plan or program, the medical and dental benefits provided by the Company\nhereunder shall be secondary to such employer’s health benefits plan or program in accordance with the terms of the Company’s health benefit\nplans.\n(c) Long-Term Performance Program. The Long Term Performance Incentive Program grant for any multi-year performance period will be\ntreated at termination of active employment in accordance with the provisions of its respective program document or grant letter.\n(d) Outplacement. From the date of termination pursuant to the first sentence of Section 1(a), Executive will be immediately eligible for\noutplacement services at the Company’s expense. The Company and Executive will mutually agree on which outplacement firm, among current\nvendors used by the Company, will provide these services. Such services will be provided for up to one (1) year from the beginning of the Salary\nContinuation Period or until employment is obtained, whichever occurs first.\n2. Definitions. For purposes of this Agreement, the following terms shall have the definitions as set forth below:\n(a) “Cause” shall mean (1) a material breach by Executive (other than a breach resulting from Executive’s incapacity due to a mental or\nphysical disability) of Executive’s duties and responsibilities which breach is demonstrably willful and deliberate on Executive’s part, is\ncommitted in bad faith or without reasonable belief that such breach is in the best interests of Sears and is not remedied in a reasonable period of\ntime after receipt of written notice from Sears specifying such breach, (2) the commission by Executive of a felony involving moral turpitude, or\n(3) dishonesty or willful misconduct in connection with Executive’s employment; and\n(b) “Disability” shall mean disability as defined under the long-term disability plan of Sears applicable to Executive.\n(c) “Good Reason” shall mean, without Executive’s written consent, (i) a reduction of more than 10% in the sum of Executive’s annual\nbase salary and target bonus from those in effect as of the date of this Agreement, (ii) a change in reporting relationship such that Executive\nreports to anyone other than the Chief Executive Officer, the Chairman of the Board, the Board of directors, (iii) a reduction in title or a material\ndiminution in duties, (iv) Executive’s mandatory relocation to an office more than 50 miles from the primary location at which Executive is\nrequired to perform Executive’s duties immediately prior to the date of this Agreement or (v) failure of a successor company to assume or fulfill\nthe obligations under this Agreement.\n3. Non-Disparagement. Executive will not take any actions detrimental to the interests of Sears, nor make derogatory statements, either\nwritten or oral to any third party, or otherwise publicly disparage Sears, its products, services, or present or former employees, officers or\ndirectors, and will not authorize others to make derogatory or disparaging statements on Executive’s behalf.\n4. Intellectual Property Rights. Executive acknowledges that Executive’s development, work or research on any and all inventions or\nexpressions of ideas, patentable or not, hereafter made or conceived solely or jointly within the scope of employment at Sears, provided such\ninvention or expression of an idea relates to the business of Sears, or relates to\n-\nSears actual or demonstrably anticipated research or development, or results from any work performed by Executive for or on behalf of Sears,\nare hereby assigned to Sears, including Executive’s entire rights, title and interest. Executive will promptly disclose such invention or expression\nof an idea to Executive’s management and will, upon request, promptly execute a specific written assignment of title to Sears. If Executive\ncurrently holds any inventions or expressions of an idea, regardless of whether they were published or filed with the U.S. Patent and Trademark\nOffice, or is under contract to not so assign, Executive will list them on the last page of this Agreement.\n5. Confidentiality. Executive agrees that the existence and terms of the Agreement, including the compensation paid to Executive, and\ndiscussions with Sears regarding this Agreement, shall be considered confidential and shall not be disclosed or communicated in any manner\nexcept: (a) as required by law or legal process; (b) to Executive’s spouse, domestic partner, or financial/legal advisors, all of whom shall agree to\nkeep such information confidential.\n6. Protective Covenants. Executive acknowledges that this Agreement provides for additional consideration beyond what Sears is otherwise\nobligated to pay. In consideration of the opportunity for severance benefits and special payments specified above, and other good and valuable\nconsideration, Executive agrees to the following:\n(@) Non-Disclosure and Non-Solicitation. Executive acknowledges that Executive has previously or has simultaneously executed and\nwill continue to be bound by an Executive Non-Disclosure and Non-Solicitation of Employees Agreement, which agreement sets\nforth, among other things, the definition of Sears Confidential Information and is incorporated by reference herein.\n(b) Non-Competition. Executive acknowledges that as a result of Executive’s position at Sears, Executive has learned or developed, or\nwill learn or develop, Sears Confidential Information and that use or disclosure of such Confidential Information is likely to occur\nif Executive were to render advice or services to any Sears Competitor.\ni.  Therefore, for one (1) year from Executive’s last day of active employment, whether or not Executive receives severance\nbenefits pursuant to Section 1 hereto (“Severance Pay”), Executive will not, directly or indirectly, aid, assist, participate in,\nconsult with, render services for, accept a position with, become employed by, or otherwise enter into any relationship with\n(other than having a passive ownership interest in or being a customer of) any Sears Competitor.\nii.  For purposes of this Agreement, “Sears Competitor” means\n1.  Those companies listed on Appendix A, each of which Executive acknowledges is a Sears Competitor, whether or\n_3-\nnot it falls within the categories in (2), below, and further acknowledges that this is not an exclusive list of Sears\nCompetitors and is not intended to limit the generality of subsection 6(b)(ii)(2), below, and\n2. Any party (A) engaged in any retail business (whether in a department store, specialty store, discount store, direct\nmarketing, or electronic commerce or other business format), that consists of selling furniture, appliances, electronics,\nhardware, auto parts and/or apparel products, or providing home improvement, product repair and/or home services,\nwith combined annual revenue in excess of $500 million, (B) any vendor with combined annual gross sales of services\nor merchandise to Sears in excess of $100 million, or (C) a party engaged in any other line of business, in which Sears\nhas commenced business prior to the end of Executive’s active employment, with Sears having annual gross sales in\nthat line of business in excess of $50 million.\niii. Executive acknowledges that Sears shall have the right to propose modifications to Appendix B periodically to include\n(1) emergent Competitors in Sears existing lines of business and (2) Competitors in lines of business that are new for Sears\nwith the prior written consent of Executive, which shall not be unreasonably withheld.\niv.  Executive further acknowledges that Sears does business throughout the United States, Puerto Rico and Canada and that this\nnon-compete provision applies in any state of the United States, Puerto Rico or province of Canada in which Sears does\nbusiness.\n(c) Executive will provide Sears with such information as Sears may from time to time reasonably request to determine Executive’s\ncompliance with this Agreement. Executive authorizes Sears to contact Executive’s future employers and other entities with which Executive has\nany business relationship to determine Executive’s compliance with this Agreement or to communicate the contents of this Agreement to such\nemployers and entities. Executive releases Sears, its agents and employees, from all liability for any damage arising from any such contacts or\ncommunications.\n(d) Executive agrees that the restrictions set forth above are necessary to prevent the use and disclosure of Sears Confidential Information\nand to otherwise protect the legitimate business interests of Sears. Executive further agrees and acknowledges that the provisions of this\nAgreement are reasonable.\n(e) Upon the termination of Executive’s employment by either party, Executive will execute a binding General Release and Waiver of\nclaims in a form to be provided by Sears, which is incorporated by reference herein. This General Release and Waiver will be in\n4-\na form substantially similar to the attached sample. If the General Release and Waiver is not signed or is signed but subsequently revoked,\nExecutive will not receive Severance Pay (if any) or any other benefits due under this Agreement.\n(f) Executive acknowledges that irreparable harm would result from any breach or threatened breach by Executive of the provisions of this\nAgreement, and monetary damages alone would not provide adequate relief for any such breach. Accordingly, if Executive breaches or threatens\nto breach this Agreement, Executive consents to injunctive relief in favor of Sears without the necessity of Sears posting bond. Moreover, any\naward of injunctive relief shall not preclude Sears from seeking or recovering any lawful compensatory damages which may have resulted from a\nbreach of this Agreement, including a forfeiture of any payments not yet made and a return of any payments already received by Executive.\n(g) Any waiver, or failure to seek enforcement or remedy for any breach or suspected breach, of any provision of this Agreement by Sears\nor Executive in any instance shall not be deemed a waiver of such provision in the future,\n(h) Executive may request (i) a waiver of the non-competition provisions of this Agreement or (ii) that the time frame in Section 6(b),\nabove, commence during Executive’s continued employment with Sears, by written request to the Chief Executive Officer of Sears or the\nequivalent. Such a request will be given reasonable consideration and may be granted, in whole or in part, or denied at Sears’ absolute discretion.\n7. Except as specifically provided in paragraphs (a) and (b) of Section 1 and Sections 6(e) and (f) and 10, such compensation and benefits\nshall not be reduced whether or not Executive obtains other employment (it being agreed, however, that Executive shall be obligated to seek\nother employment).\n8. Executive agrees, without receiving additional compensation, to fully and completely cooperate with Sears, both during and after the period\nof active employment, in all investigations, potential litigation or litigation in which Sears is involved or may become involved other than any\nsuch investigations, potential litigation or litigation between Sears and Executive. Sears will reimburse Executive for reasonable travel and out-\nof-pocket expenses incurred in connection with any such investigations, potential litigation or litigation.\n9. Executive agrees that both during and after the period of active employment with Sears, Executive will not voluntarily act as a witness,\nconsultant or expert for any person or party in any action against or involving Sears or any corporate relative of Sears, unless subject to judicial\nenforcement to appear as a fact witness only.\n10. In the event of a breach by Executive of any of the provisions of this Agreement, including but not limited to the non-disparagement\nprovision (Section 3 herein), and the non-competition provisions (Section 6 herein) of this Agreement, Sears obligation to make salary\ncontinuation or any other payments under this Agreement will immediately cease.\n11. If any provision(s) of this Agreement shall be found invalid, illegal, or unenforceable, in whole or in part, then such provision(s) shall be\nmodified or restricted so as to effectuate as nearly as possible in a valid and enforceable way the provisions hereof, or shall be\n-5-\ndeemed excised from this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent\npermitted by law, as if such provision(s) had been originally incorporated herein as so modified or restricted or as if such provision(s) had not\nbeen originally incorporated herein, as the case may be.\n12. This Agreement will be governed under the internal laws of the state of Illinois without regard to principles of conflicts of laws. Executive\nagrees that the state and federal courts located in the state of Illinois shall have exclusive jurisdiction in any action, Suit or proceeding based on\nor arising out of this Agreement, and Executive hereby: (a) submits to the personal jurisdiction of such courts; (b) consents to the service of\nprocess in connection with any action, suit, or proceeding against Executive; and (c) waives any other requirement (whether imposed by statute,\nrule of court, or otherwise) with respect to personal jurisdiction, venue or service of process.\n13. Executive agrees to waive any right to a jury trial on any claim contending that this Agreement or the General Release and Waiver is\nillegal or unenforceable in whole or in part, and Executive agrees to try any claims brought in a court or tribunal without use of a jury or advisory\njury. Further, should any claim arising out of Executive’s employment or termination of employment be found by a court or tribunal of competent\njurisdiction to not be released by the General Release and Waiver, Executive agrees to try such claim to the court or tribunal without use of a jury\nor advisory jury.\n14. This Agreement does not constitute a contract of employment, and Executive acknowledges that Executive’s employment with Sears is\nterminable “at-will” by either party with or without cause and with or without notice.\n15. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Sears document, then the provisions\nof this Agreement will control. Executive shall not be eligible for any benefits under the Sears Transition Pay Plan or any successor severance\nplan or program. This Agreement will supersede any prior agreement between Executive and Sears with respect to the subject matter contained\nherein (with the exception of the Executive Non-Disclosure and Non-Solicitation of Employees Agreement dated , 200 _) and may\nbe amended only by a writing signed by an authorized officer of Sears.\n16. All compensation paid or provided to Executive under this Agreement shall be subject to any applicable federal, state or local income and\nemployment tax withholding requirements.\n17. Sears may assign its rights under this Agreement to any successor in interest, whether by merger, consolidation, sale of assets, or\notherwise. This Agreement shall be binding whether it is between Sears and Executive or between any successor or assignee of Sears or affiliate\nthereof and Executive.\n18. This Agreement may be executed in one or more counterparts, which together shall constitute a valid and binding agreement.\nIN WITNESS WHEREOQOF, Executive and Sears, by its duly authorized representative, have executed this Agreement effective as of the date\nset forth below.\nSEARS HOLDINGS CORPORATION\nBY:\nEXECUTIVE\nDate Date\nNOTICE: YOU MAY CONSIDER THIS GENERAL RELEASE AND WAIVER FOR UP TO TWENTY-ONE (21) DAYS. IF YOU\nDECIDE TO SIGN IT, YOU MAY REVOKE THE GENERAL RELEASE AND WAIVER WITHIN SEVEN (7) DAYS AFTER\nSIGNING. ANY REVOCATION WITHIN THIS PERIOD MUST BE IMMEDIATELY SUBMITTED IN WRITING TO GENERAL\nCOUNSEL, SEARS HOLDINGS CORPORATION, 3333 BEVERLY ROAD, HOFFMAN ESTATES, IL 60179. YOU MAY WISH TO\nCONSULT WITH AN ATTORNEY BEFORE SIGNING THIS DOCUMENT.\nGENERAL RELEASE AND WAIVER\nIn consideration for the benefits that I will receive under the attached Executive Severance/Non-Compete Agreement, I and any person acting\nby, through, or under me hereby release, waive, and forever discharge Sears Holdings Corporation, its current and former agents, subsidiaries,\naffiliates, employees, officers, shareholders, successors, and assigns (“Sears”) from any and all liability, actions, charges, causes of action,\ndemands, damages, or claims for relief or remuneration of any kind whatsoever, whether known or unknown at this time, arising out of, or\nconnected with, my employment with Sears and the termination of my employment, including, but not limited to, all matters in law, in equity, in\ncontract (oral or written, express or implied), or in tort, or pursuant to statute, including any claim for age or other typos of discrimination under\nthe Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, or other federal, state,\nor local law or ordinance, to the fullest extent permitted under the law, including the Employee Retirement Income Security Act. This General\nRelease and Waiver does not apply to any claims or rights that may arise after the date that I signed this General Release and Waiver. I\nunderstand that Sears is not admitting to any violation of my rights or any duty or obligation owed to me.\nExcluded from this General Release and Waiver are my claims which cannot be waived by law, including but not limited to (1) the right to file\na charge with or participate in an investigation conducted by certain government agencies, (2) any rights or claims to benefits accrued under\nbenefit plans maintained by Sears pursuant to ERISA, and (3) any claims that cannot be waived under the Fair Labor Standards Act or Family\nand Medical Leave Act. I do, however, waive my right to any monetary recovery should any agency pursue any claims on my behalf. I represent\nand warrant that I have not filed any complaint, charge, or lawsuit against Sears with any governmental agency and/or any court.\nIn addition, I agree never to sue Sears in any forum for any claim covered by this General Release and Waiver except that I may bring a claim\nunder the ADEA to challenge this General Release and Waiver. If I violate this General Release and Waiver by suing Sears, other than under\nADEA, I shall be liable to Sears for its reasonable attorney’s fees and other litigation costs and expenses incurred in defending against such a\nsuit.\nI have read this General Release and Waiver and I understand its legal and binding effect. I am acting voluntarily and of my own free will in\nexecuting this General Release and Waiver.\nI have had the opportunity to seek, and I was advised in writing to seek, legal counsel prior to signing this General Release and Waiver.\nI was given at least twenty-one (21) days to consider signing this General Release and Waiver. Any immaterial modification of this General\nRelease and Waiver does not restart the twenty-one (21) day consideration period.\nI understand that, if I sign the General Release and Waiver, I can change my mind and revoke it within seven (7) days after signing it by\nnotifying the General Counsel of Sears in writing at Sears Holdings Corporation, 3333 Beverly Road, Hoffman Estates, Illinois 60179. 1\nunderstand that this General Release and Waiver will not be effective until after this seven (7) day revocation period has expired.\nDate: SAMPLE ONLY — DO NOT SIGN Signed by: SAMPLE ONLY — DO NOT SIGN\nWitness by:\nExecutive: Date: , 2005\nAppendix A\nto Executive Severance/Non-Compete Agreement\nIn addition to all companies otherwise meeting the definition of “Sears Competitor” in Section 6(b)(ii)(2) of the Executive Severance/Non-\nCompete Agreement to which this Appendix A is attached, the following companies are “Sears Competitors” for purposes of that Section 6(b)(i):\nRetail Home/Product Services\nDepartment Stores Ace Hardware Corporation\nDillard’s, Inc. TruServe Corporation\nFederated Department Stores, Inc. Lowe’s Companies, Inc.\nJ. C. Penney Company, Inc. Menard, Inc.\nKohls’ Corporation The Home Depot, Inc.\nThe May Department Stores Company\nMervyn’s\nSaks Incorporated\nDiscount Stores Other\nKohl’s Corporation Maytag Corporation\nTarget Corporation Whirlpool Corporation\nWal-Mart Stores, Inc. The ServiceMaster Company\nSpecialty Stores\nAutoZone, Inc.\nBed Bath & Beyond Inc.\nBest Buy Co., Inc.\nCarMax, Inc.\nCircuit City Stores, Inc.\nCompUSA Inc. (eliminate hyphen)\nFinlay Enterprises, Inc. (Jewelry)\nGap Inc.\nLimited Brands, Inc.\nLinens ‘n Things, Inc.\nOffice Depot, Inc.\nThe Pep Boys — Manny, Moe & Jack\nPier 1 Imports, Inc.\nTandy Brands Accessories, Inc.\nZale Corporation	EX-10.6 3 c00537exv10w6.htm REVISED FORM OF EXECUTIVE SEVERANCE/NON-COMPETE AGREEMENT\nExhibit 10.6\nEXECUTIVE SEVERANCE/NON-COMPETE AGREEMENT\nIn this Executive Severance/Non-Compete Agreement dated as of\n2005 (the "Agreement"), Sears Holdings Corporation and its\ncontrolled affiliates and subsidiaries ("Sears"), and\n("Executive"), intending to be legally bound and for good and\nvaluable consideration, agree as follows:\n1. Severance Benefits.\n(a) Continuation of Compensation. In the event that (x) Executive's employment is terminated by each Sears entity by which she is\nemployed (the "Company") for any reason other than Cause (as defined below), death or Disability (as defined below) or (y) Executive's\nemployment is terminated by Executive for Good Reason (as defined below), subject to the provisions of Sections 6(e) and (f) and 10 herein,\nthe\nCompany shal pay to Executive his annual base salary as in effect immediately prior to the date of termination for a period of one (1) year;\nprovided that, in any event, Sears' obligations under this clause 1 shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent\nthat Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment) during the Salary\nContinuation Period (as defined below). The amount described in Section 1(a) shall be paid on each regular payroll period following the date\nof\ntermination (the "Salary Continuation Period") provided that if at the time that the executive terminates employment the executive is a "key\nemployee" or "specified employee" within the meaning of Code Section 409A and regulations issued thereunder, then, if necessary to comply\nwith Section 409A, payment to the executive shall not commence until six months after the executive's termination of employment In addition\nto\nthe\nforegoing,\na\nlump sum payment will be made to Executive within ten (10) days following the date of termination in an amount equal to\nthe\nsum of any accrued base salary through the date of termination to the extent not theretofore paid and any vacation benefits that accrued prior to\nthe date of termination. No vacation will accrue after the date active employment ends. All salary continuation payments and benefits will\nterminate and forever lapse if Executive is employed by a "Sears Competitor" as defined in Section 6(b) herein.\n(b) Continuation of Benefits. During the Salary Continuation Period, Executive will be entitled to all benefits (other than as specified\nabove)\nfor which Executive was eligible to participate prior to the end of active employment, with the exception of Long-Term Disability and\nFlexible Spending Accounts. Executive and eligible dependents shall be entitled to continue to participate in the Company's medical and dental\nplans in accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"). The cost of such COBRA coverage for\nExecutive and his dependents will be subsidized by the Company, so that Executive will be paying the same premium for medical and dental\nplan coverage during the Salary Continuation Period as an active employee. However, in the event Executive becomes employed by another\nemployer and is covered by such employer's health benefits plan or program, the medical and dental benefits provided by the Company\nhereunder shall be secondary to such employer's health benefits plan or program in accordance with the terms of the Company's health benefit\nplans.\n(c) Long-Term Performance Program. The Long Term Performance Incentive Program grant for any multi-year performance period will be\ntreated at termination of active employment in accordance with the provisions of its respective program document or grant letter.\n(d) Qutplacement. From the date of termination pursuant to the first sentence of Section 1(a), Executive will be immediately eligible for\noutplacement services at the Company's expense. The Company and Executive will mutually agree on which outplacement firm, among current\nvendors used by the Company, will provide these services. Such services will be provided for up to one (1) year from the beginning of the Salary\nContinuation Period or until employment is obtained, whichever occurs first.\n2. Definitions. For purposes of this Agreement, the following terms shall have the definitions as set forth below:\n(a) "Cause" shall mean (1) a material breach by Executive (other than a breach resulting from Executive's incapacity due to a mental or\nphysical disability) of Executive's duties and responsibilities which breach is demonstrably willful and deliberate on Executive's part,\nis\ncommitted in bad faith or without reasonable belief that such breach is in the best interests of Sears and is not remedied in a reasonable period of\ntime after receipt of written notice from Sears specifying such breach, (2) the commission by Executive of a felony involving moral turpitude, or\n(3) dishonesty or willful misconduct in connection with Executive's employment; and\n(b) "Disability." shall mean disability as defined under the long-term disability plan of Sears applicable to Executive.\n(c) "Good Reason" shall mean, without Executive's written consent, (i) a reduction of more than 10% in the sum of Executive's annual\nbase salary and target bonus from those in effect as of the date of this Agreement, (ii) a change in reporting relationship such that Executive\nreports to anyone other than the Chief Executive Officer, the Chairman of the Board, the Board of directors, (iii) a reduction in title or a material\ndiminution in duties, (iv) Executive's mandatory relocation to an office more than 50 miles from the primary location at which Executive is\nrequired to perform Executive's duties immediately prior to the date of this Agreement or (v) failure of a successor company to assume or fulfill\nthe obligations under this Agreement.\n3.\nNon-Disparagement.\nExecutive\nwill\nnot\ntake\nany\nactions\ndetrimental\nto\nthe\ninterests\nof\nSears,\nnor\nmake\nderogatory\nstatements,\neither\nwritten or oral to any third party, or otherwise publicly disparage Sears, its products, services, or present or former employees, officers or\ndirectors, and will not authorize others to make derogatory or disparaging statements on Executive's behalf.\n4. Intellectual Property Rights. Executive acknowledges that Executive's development, work or research on any and all inventions or\nexpressions of ideas, patentable or not, hereafter made or conceived solely or jointly within the scope of employment at Sears, provided such\ninvention or expression of an idea relates to the business of Sears, or relates to\n-2-\nSears actual or demonstrably anticipated research or development, or results from any work performed by Executive for or on behalf of Sears,\nare hereby assigned to Sears, including Executive's entire rights, title and interest. Executive will promptly disclose such invention or expression\nof an idea to Executive's management and will, upon request, promptly execute a specific written assignment of title to Sears. If Executive\ncurrently holds any inventions or expressions of an idea, regardless of whether they were published or filed with the U.S. Patent and Trademark\nOffice, or is under contract to not so assign, Executive will list them on the last page of this Agreement.\n5. Confidentiality.. Executive agrees that the existence and terms of the Agreement, including the compensation paid to Executive, and\ndiscussions with Sears regarding this Agreement, shall be considered confidential and shall not be disclosed or communicated in any manner\nexcept: (a) as required by law or legal process; (b) to Executive's spouse, domestic partner, or financial/legal advisors, all of whom shall agree to\nkeep such information confidential.\n6. Protective Covenants. Executive acknowledges that this Agreement provides for additional consideration beyond what Sears is otherwise\nobligated to pay. In consideration of the opportunity for severance benefits and special payments specified above, and other good and valuable\nconsideration, Executive agrees to the following:\n(a)\nNon-Disclosure and Non-Solicitation. Executive acknowledges that Executive has previously or has simultaneously executed and\nwill continue to be bound by an Executive Non-Disclosure and Non-Solicitation of Employees Agreement, which agreement sets\nforth, among other things, the definition of Sears Confidential Information and is incorporated by reference herein.\n(b)\nNon-Competition. Executive acknowledges that as a result of Executive's position at Sears, Executive has learned or developed, or\nwill learn or develop, Sears Confidential Information and that use or disclosure of such Confidential Information is likely to occur\nif Executive were to render advice or services to any Sears Competitor.\ni.\nTherefore, for one (1) year from Executive's last day of active employment, whether or not Executive receives severance\nbenefits pursuant to Section 1 hereto ("Severance Pay"), Executive will not, directly or indirectly, aid, assist, participate\nin,\nconsult with, render services for, accept a position with, become employed by, or otherwise enter into any relationship with\n(other than having a passive ownership interest in or being a customer of) any Sears Competitor.\nii.\nFor purposes of this Agreement, "Sears Competitor" means\n1. Those companies listed on Appendix A, each of which Executive acknowledges is a Sears Competitor, whether or\n-3-\nnot it falls within the categories in (2), below, and further acknowledges that this is not an exclusive list of Sears\nCompetitors and is not intended to limit the generality of subsection 6(b)(ii)(2), below, and\n2.\nAny party (A) engaged in any retail business (whether in a department store, specialty store, discount store, direct\nmarketing, or electronic commerce or other business format), that consists of selling furniture, appliances, electronics,\nhardware, auto parts and/or apparel products, or providing home improvement, product repair and/or home services,\nwith combined annual revenue in excess of $500 million, (B) any vendor with combined annual gross sales of services\nor merchandise to Sears in excess of $100 million, or (C) a party engaged in any other line of business, in which Sears\nhas commenced business prior to the end of Executive's active employment, with Sears having annual gross sales in\nthat line of business in excess of $50 million.\niii.\nExecutive acknowledges that Sears shall have the right to propose modifications to Appendix B periodically to include\n(1) emergent Competitors in Sears existing lines of business and (2) Competitors in lines of business that are new for Sears\nwith the prior written consent of Executive, which shall not be unreasonably withheld.\niv. Executive further acknowledges that Sears does business throughout the United States, Puerto Rico and Canada and that this\nnon-compete provision applies in any state of the United States, Puerto Rico or province of Canada in which Sears does\nbusiness.\n(c) Executive will provide Sears with such information as Sears may from time to time reasonably request to determine Executive's\ncompliance with this Agreement. Executive authorizes Sears to contact Executive's future employers and other entities with which Executive has\nany\nbusiness\nrelationship to determine Executive's compliance with this Agreement or to communicate the contents of this Agreement to such\nemployers and entities. Executive releases Sears, its agents and employees, from all liability for any damage arising from any such contacts or\ncommunications.\n(d) Executive agrees that the restrictions set forth above are necessary to prevent the use and disclosure of Sears Confidential Information\nand to otherwise protect the legitimate business interests of Sears. Executive further agrees and acknowledges that the provisions of this\nAgreement are reasonable.\n(e) Upon the termination of Executive's employment by either party, Executive will execute a binding General Release and Waiver of\nclaims in a form to be provided by Sears, which is incorporated by reference herein. This General Release and Waiver will be in\n-4-\na form substantially similar to the attached sample. If the General Release and Waiver is not signed or is signed but subsequently revoked,\nExecutive will not receive Severance Pay (if any) or any other benefits due under this Agreement.\n(f) Executive acknowledges that irreparable harm would result from any breach or threatened breach by Executive of the provisions of this\nAgreement, and monetary damages alone would not provide adequate relief for any such breach. Accordingly, if Executive breaches or threatens\nto\nbreach this Agreement, Executive consents to injunctive relief in favor of Sears without the necessity of Sears posting bond. Moreover, any\naward of injunctive relief shall not preclude Sears from seeking or recovering any lawful compensatory damages which may have resulted from\na\nbreach of this Agreement, including a forfeiture of any payments not yet made and a return of any payments already received by Executive.\n(g) Any waiver, or failure to seek enforcement or remedy for any breach or suspected breach, of any provision of this Agreement by Sears\nor Executive in any instance shall not be deemed a waiver of such provision in the future,\n(h) Executive may request (i) a waiver of the non-competition provisions of this Agreement or (ii) that the time frame in Section 6(b),\nabove, commence during Executive's continued employment with Sears, by written request to the Chief Executive Officer of Sears or the\nequivalent. Such a request will be given reasonable consideration and may be granted, in whole or in part, or denied at Sears' absolute discretion.\n7. Except as specifically provided in paragraphs (a) and (b) of Section 1 and Sections 6(e) and (f) and 10, such compensation and benefits\nshall not be reduced whether or not Executive obtains other employment (it being agreed, however, that Executive shall be obligated to seek\nother employment).\n8. Executive agrees, without receiving additional compensation, to fully and completely cooperate with Sears, both during and after the period\nof active employment, in all investigations, potential litigation or litigation in which Sears is involved or may become involved other than any\nsuch investigations, potential litigation or litigation between Sears and Executive. Sears will reimburse Executive for reasonable travel and out-\nof-pocket expenses incurred in connection with any such investigations, potential litigation or litigation.\n9.\nExecutive agrees that both during and after the period of active employment with Sears, Executive will not voluntarily\nact\nas\na\nwitness,\nconsultant or expert for any person or party in any action against or involving Sears or any corporate relative of Sears, unless subject to judicial\nenforcement to appear as a fact witness only.\n10. In the event of a breach by Executive of any of the provisions of this Agreement, including but not limited to the non-disparagement\nprovision (Section 3 herein), and the non-competition provisions (Section 6 herein) of this Agreement, Sears obligation to make salary\ncontinuation or any other payments under this Agreement will immediately cease.\n11. If any provision(s) of this Agreement shall be found invalid, illegal, or unenforceable, in whole or in part, then such provision(s) shall be\nmodified or restricted so as to effectuate as nearly as possible in a valid and enforceable way the provisions hereof, or shall be\n-5-\ndeemed excised from this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent\npermitted by law, as if such provision(s) had been originally incorporated herein as so modified or restricted or as if such provision(s) had not\nbeen originally incorporated herein, as the case may be.\n12. This Agreement will be governed under the internal laws of the state of Illinois without regard to principles of conflicts of laws. Executive\nagrees\nthat\nthe state and federal courts located in the state of Illinois shall have exclusive jurisdiction in any action, Suit or proceeding based on\nor arising out of this Agreement, and Executive hereby: (a) submits to the personal jurisdiction of such courts; (b) consents to the service of\nprocess in connection with any action, suit, or proceeding against Executive; and (c) waives any other requirement (whether imposed by statute,\nrule of court, or otherwise) with respect to personal jurisdiction, venue or service of process.\n13. Executive agrees to waive any right to a jury trial on any claim contending that this Agreement or the General Release and Waiver is\nillegal or unenforceable in whole or in part, and Executive agrees to try any claims brought in a court or tribunal without use of a jury or advisory\njury. Further, should any claim arising out of Executive's employment or termination of employment be found by a court or tribunal of competent\njurisdiction to not be released by the General Release and Waiver, Executive agrees to try such claim to the court or tribunal without use of a jury\nor advisory jury.\n14. This Agreement does not constitute a contract of employment, and Executive acknowledges that Executive's employment with Sears is\nterminable "at-will" by either party with or without cause and with or without notice.\n15. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Sears document, then the provisions\nof this Agreement will control. Executive shall not be eligible for any benefits under the Sears Transition Pay Plan or any successor severance\nplan or program. This Agreement will supersede any prior agreement between Executive and Sears with respect to the subject matter contained\nherein (with the exception of the Executive Non-Disclosure and Non-Solicitation of Employees Agreement dated\n200 and may\nbe amended only by a writing signed by an authorized officer of Sears.\n16. All compensation paid or provided to Executive under this Agreement shall be subject to any applicable federal, state or local income and\nemployment tax withholding requirements.\n17. Sears may assign its rights under this Agreement to any successor in interest, whether by merger, consolidation sale of assets, or\notherwise. This Agreement shall be binding whether it is between Sears and Executive or between any successor or assignee of Sears or affiliate\nthereof and Executive.\n18. This Agreement may be executed in one or more counterparts, which together shall constitute a valid and binding agreement.\nIN WITNESS WHEREOF, Executive and Sears, by its duly authorized representative, have executed this Agreement effective as of the date\nset forth below.\nSEARS HOLDINGS CORPORATION\nBY:\nEXECUTIVE\nDate\nDate\n-6-\nNOTICE: YOU MAY CONSIDER THIS GENERAL RELEASE AND WAIVER FOR UP TO TWENTY-ONE (21) DAYS. IF YOU\nDECIDE TO SIGN IT, YOU MAY REVOKE THE GENERAL RELEASE AND WAIVER WITHIN SEVEN (7) DAYS AFTER\nSIGNING. ANY REVOCATION WITHIN THIS PERIOD MUST BE IMMEDIATELY SUBMITTED IN WRITING TO GENERAL\nCOUNSEL, SEARS HOLDINGS CORPORATION, 3333 BEVERLY ROAD, HOFFMAN ESTATES, IL 60179. YOU MAY WISH TO\nCONSULT WITH AN ATTORNEY BEFORE SIGNING THIS DOCUMENT.\nGENERAL RELEASE AND WAIVER\nIn consideration for the benefits that I will receive under the attached Executive Severance/Non-Compete Agreement, I and any person acting\nby, through, or under me hereby release, waive, and forever discharge Sears Holdings Corporation, its current and former agents, subsidiaries,\naffiliates, employees, officers, shareholders, successors, and assigns ("Sears") from any and all liability, actions, charges, causes of action,\ndemands, damages, or claims for relief or remuneration of any kind whatsoever, whether known or unknown at this time, arising out of, or\nconnected with, my employment with Sears and the termination of my employment, including, but not limited to, all matters in law, in equity, in\ncontract (oral or written, express or implied), or in tort, or pursuant to statute, including any claim for age or other typos of discrimination under\nthe Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, or other federal, state,\nor local law or ordinance, to the fullest extent permitted under the law, including the Employee Retirement Income Security Act. This General\nRelease and Waiver does not apply to any claims or rights that may arise after the date that I signed this General Release and Waiver. I\nunderstand that Sears is not admitting to any violation of my rights or any duty or obligation owed to me.\nExcluded from this General Release and Waiver are my claims which cannot be waived by law, including but not limited to (1) the right to file\na\ncharge with or participate in an investigation conducted by certain government agencies, (2) any rights or claims to benefits accrued under\nbenefit plans maintained by Sears pursuant to ERISA, and (3) any claims that cannot be waived under the Fair Labor Standards Act or Family\nand Medical Leave Act. I do, however, waive my right to any monetary recovery should any agency pursue any claims on my behalf. I represent\nand warrant that I have not filed any complaint, charge, or lawsuit against Sears with any governmental agency and/or any court.\nIn addition, I agree never to sue Sears in any forum for any claim covered by this General Release and Waiver except that I may bring a claim\nunder the ADEA to challenge this General Release and Waiver. If I violate this General Release and Waiver by suing Sears, other than under\nADEA, I shall be liable to Sears for its reasonable attorney's fees and other litigation costs and expenses incurred in defending against such a\nsuit.\nI have read this General Release and Waiver and I understand its legal and binding effect. I am acting voluntarily and of my own free will in\nexecuting this General Release and Waiver.\nI have had the opportunity to seek, and I was advised in writing to seek, legal counsel prior to signing this General Release and Waiver.\nI was given at least twenty-one (21) days to consider signing this General Release and Waiver. Any immaterial modification of this General\nRelease and Waiver does not restart the twenty-one (21) day consideration period.\nI understand that, if I sign the General Release and Waiver, I can change my mind and revoke it within seven (7) days after signing it by\nnotifying the General Counsel of Sears in writing at Sears Holdings Corporation, 3333 Beverly Road, Hoffman Estates, Illinois 60179. I\nunderstand that this General Release and Waiver will not be effective until after this seven (7) day revocation period has expired.\nDate: SAMPLE ONLY DO NOT SIGN\nSigned by:\nSAMPLE ONLY DO NOT SIGN\nWitness by:\n-7-\nExecutive:\nDate:\n, 2005\nAppendix A\nto Executive Severance/Non-Compete Agreement\nIn addition to all companies otherwise meeting the definition of "Sears Competitor" in Section 6(b)(ii)(2) of the Executive Severance/Non-\nCompete Agreement to which this Appendix A is attached, the following companies are "Sears Competitors" for purposes of that Section 6(b)(i):\nRetail\nHome/Product Services\nDepartment Stores\nAce Hardware Corporation\nDillard's, Inc.\nTruServe Corporation\nFederated Department Stores, Inc.\nLowe's Companies, Inc.\nJ. C. Penney Company, Inc.\nMenard, Inc.\nKohls' Corporation\nThe Home Depot, Inc.\nThe May Department Stores Company\nMervyn's\nSaks Incorporated\nDiscount Stores\nOther\nKohl's Corporation\nMaytag Corporation\nTarget Corporation\nWhirlpool Corporation\nWal-Mart Stores, Inc.\nThe ServiceMaster Company\nSpecialty Stores\nAutoZone, Inc.\nBed Bath & Beyond Inc.\nBest Buy Co., Inc.\nCarMax, Inc.\nCircuit City Stores, Inc.\nCompUSA Inc. (eliminate hyphen)\nFinlay Enterprises, Inc. (Jewelry)\nGap Inc.\nLimited Brands, Inc.\nLinens 'n Things, Inc.\nOffice Depot, Inc.\nThe Pep Boys - Manny, Moe & Jack\nPier 1 Imports, Inc.\nTandy Brands Accessories, Inc.\nZale Corporation\n-8-	EX-10.6 3 c00537exv10w6.htm REVISED FORM OF EXECUTIVE SEVERANCE/NON-COMPETE AGREEMENT\nExhibit 10.6\nEXECUTIVE SEVERANCE/NON-COMPETE AGREEMENT\nIn this Executive Severance/Non-Compete Agreement dated as of\n, 2005 (the “Agreement”), Sears Holdings Corporation and its\ncontrolled affiliates and subsidiaries (“Sears”), and\n(“Executive”), intending to be legally bound and for good and\nvaluable consideration, agree as follows:\n1. Severance Benefits.\n(a) Continuation of Compensation. In the event that (x) Executive’s employment is terminated by each Sears entity by which she is\nemployed (the “Company”) for any reason other than Cause (as defined below), death or Disability (as defined below) or (y) Executive’s\nemployment is terminated by Executive for Good Reason (as defined below), subject to the provisions of Sections 6(e) and (f) and 10 herein, the\nCompany shall pay to Executive his annual base salary as in effect immediately prior to the date of termination for a period of one (1) year;\nprovided that, in any event, Sears’ obligations under this clause 1 shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent\nthat Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment) during the Salary\nContinuation Period (as defined below). The amount described in Section 1(a) shall be paid on each regular payroll period following the date of\ntermination (the “Salary Continuation Period”) provided that if at the time that the executive terminates employment the executive is a “key\nemployee” or “specified employee” within the meaning of Code Section 409A and regulations issued thereunder, then, if necessary to comply\nwith Section 409A, payment to the executive shall not commence until six months after the executive’s termination of employment In addition to\nthe foregoing, a lump sum payment will be made to Executive within ten (10) days following the date of termination in an amount equal to the\nsum of any accrued base salary through the date of termination to the extent not theretofore paid and any vacation benefits that accrued prior to\nthe date of termination. No vacation will accrue after the date active employment ends. All salary continuation payments and benefits will\nterminate and forever lapse if Executive is employed by a “Sears Competitor” as defined in Section 6(b) herein.\n(b) Continuation of Benefits. During the Salary Continuation Period, Executive will be entitled to all benefits (other than as specified\nabove) for which Executive was eligible to participate prior to the end of active employment, with the exception of Long-Term Disability and\nFlexible Spending Accounts. Executive and eligible dependents shall be entitled to continue to participate in the Company’s medical and dental\nplans in accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”). The cost of such COBRA coverage for\nExecutive and his dependents will be subsidized by the Company, so that Executive will be paying the same premium for medical and dental\nplan coverage during the Salary Continuation Period as an active employee. However, in the event Executive becomes employed by another\nemployer and is covered by such employer’s health benefits plan or program, the medical and dental benefits provided by the Company\nhereunder shall be secondary to such employer’s health benefits plan or program in accordance with the terms of the Company’s health benefit\nplans.\n(c) Long-Term Performance Program. The Long Term Performance Incentive Program grant for any multi-year performance period will be\ntreated at termination of active employment in accordance with the provisions of its respective program document or grant letter.\n(d) Outplacement. From the date of termination pursuant to the first sentence of Section 1(a), Executive will be immediately eligible for\noutplacement services at the Company’s expense. The Company and Executive will mutually agree on which outplacement firm, among current\nvendors used by the Company, will provide these services. Such services will be provided for up to one (1) year from the beginning of the Salary\nContinuation Period or until employment is obtained, whichever occurs first.\n2. Definitions. For purposes of this Agreement, the following terms shall have the definitions as set forth below:\n(a) “Cause” shall mean (1) a material breach by Executive (other than a breach resulting from Executive’s incapacity due to a mental or\nphysical disability) of Executive’s duties and responsibilities which breach is demonstrably willful and deliberate on Executive’s part, is\ncommitted in bad faith or without reasonable belief that such breach is in the best interests of Sears and is not remedied in a reasonable period of\ntime after receipt of written notice from Sears specifying such breach, (2) the commission by Executive of a felony involving moral turpitude, or\n(3) dishonesty or willful misconduct in connection with Executive’s employment; and\n(b) “Disability” shall mean disability as defined under the long-term disability plan of Sears applicable to Executive.\n(c) “Good Reason” shall mean, without Executive’s written consent, (i) a reduction of more than 10% in the sum of Executive’s annual\nbase salary and target bonus from those in effect as of the date of this Agreement, (ii) a change in reporting relationship such that Executive\nreports to anyone other than the Chief Executive Officer, the Chairman of the Board, the Board of directors, (iii) a reduction in title or a material\ndiminution in duties, (iv) Executive’s mandatory relocation to an office more than 50 miles from the primary location at which Executive is\nrequired to perform Executive’s duties immediately prior to the date of this Agreement or (v) failure of a successor company to assume or fulfill\nthe obligations under this Agreement.\n3. Non-Disparagement. Executive will not take any actions detrimental to the interests of Sears, nor make derogatory statements, either\nwritten or oral to any third party, or otherwise publicly disparage Sears, its products, services, or present or former employees, officers or\ndirectors, and will not authorize others to make derogatory or disparaging statements on Executive’s behalf.\n4. Intellectual Property Rights. Executive acknowledges that Executive’s development, work or research on any and all inventions or\nexpressions of ideas, patentable or not, hereafter made or conceived solely or jointly within the scope of employment at Sears, provided such\ninvention or expression of an idea relates to the business of Sears, or relates to\n-2-\nSears actual or demonstrably anticipated research or development, or results from any work performed by Executive for or on behalf of Sears,\nare hereby assigned to Sears, including Executive’s entire rights, title and interest. Executive will promptly disclose such invention or expression\nof an idea to Executive’s management and will, upon request, promptly execute a specific written assignment of title to Sears. If Executive\ncurrently holds any inventions or expressions of an idea, regardless of whether they were published or filed with the U.S. Patent and Trademark\nOffice, or is under contract to not so assign, Executive will list them on the last page of this Agreement.\n5. Confidentiality. Executive agrees that the existence and terms of the Agreement, including the compensation paid to Executive, and\ndiscussions with Sears regarding this Agreement, shall be considered confidential and shall not be disclosed or communicated in any manner\nexcept: (a) as required by law or legal process; (b) to Executive’s spouse, domestic partner, or financial/legal advisors, all of whom shall agree to\nkeep such information confidential.\n6. Protective Covenants. Executive acknowledges that this Agreement provides for additional consideration beyond what Sears is otherwise\nobligated to pay. In consideration of the opportunity for severance benefits and special payments specified above, and other good and valuable\nconsideration, Executive agrees to the following:\n(a) Non-Disclosure and Non-Solicitation. Executive acknowledges that Executive has previously or has simultaneously executed and\nwill continue to be bound by an Executive Non-Disclosure and Non-Solicitation of Employees Agreement, which agreement sets\nforth, among other things, the definition of Sears Confidential Information and is incorporated by reference herein.\n(b) Non-Competition. Executive acknowledges that as a result of Executive’s position at Sears, Executive has learned or developed, or\nwill learn or develop, Sears Confidential Information and that use or disclosure of such Confidential Information is likely to occur\nif Executive were to render advice or services to any Sears Competitor.\ni. Therefore, for one (1) year from Executive’s last day of active employment, whether or not Executive receives severance\nbenefits pursuant to Section 1 hereto (“Severance Pay”), Executive will not, directly or indirectly, aid, assist, participate in,\nconsult with, render services for, accept a position with, become employed by, or otherwise enter into any relationship with\n(other than having a passive ownership interest in or being a customer of) any Sears Competitor.\nii. For purposes of this Agreement, “Sears Competitor” means\n1. Those companies listed on Appendix A, each of which Executive acknowledges is a Sears Competitor, whether or\n-3-\nnot it falls within the categories in (2), below, and further acknowledges that this is not an exclusive list of Sears\nCompetitors and is not intended to limit the generality of subsection 6(b)(ii)(2), below, and\n2. Any party (A) engaged in any retail business (whether in a department store, specialty store, discount store, direct\nmarketing, or electronic commerce or other business format), that consists of selling furniture, appliances, electronics,\nhardware, auto parts and/or apparel products, or providing home improvement, product repair and/or home services,\nwith combined annual revenue in excess of $500 million, (B) any vendor with combined annual gross sales of services\nor merchandise to Sears in excess of $100 million, or (C) a party engaged in any other line of business, in which Sears\nhas commenced business prior to the end of Executive’s active employment, with Sears having annual gross sales in\nthat line of business in excess of $50 million.\niii. Executive acknowledges that Sears shall have the right to propose modifications to Appendix B periodically to include\n(1) emergent Competitors in Sears existing lines of business and (2) Competitors in lines of business that are new for Sears\nwith the prior written consent of Executive, which shall not be unreasonably withheld.\niv. Executive further acknowledges that Sears does business throughout the United States, Puerto Rico and Canada and that this\nnon-compete provision applies in any state of the United States, Puerto Rico or province of Canada in which Sears does\nbusiness.\n(c) Executive will provide Sears with such information as Sears may from time to time reasonably request to determine Executive’s\ncompliance with this Agreement. Executive authorizes Sears to contact Executive’s future employers and other entities with which Executive has\nany business relationship to determine Executive’s compliance with this Agreement or to communicate the contents of this Agreement to such\nemployers and entities. Executive releases Sears, its agents and employees, from all liability for any damage arising from any such contacts or\ncommunications.\n(d) Executive agrees that the restrictions set forth above are necessary to prevent the use and disclosure of Sears Confidential Information\nand to otherwise protect the legitimate business interests of Sears. Executive further agrees and acknowledges that the provisions of this\nAgreement are reasonable.\n(e) Upon the termination of Executive’s employment by either party, Executive will execute a binding General Release and Waiver of\nclaims in a form to be provided by Sears, which is incorporated by reference herein. This General Release and Waiver will be in\n-4-\na form substantially similar to the attached sample. If the General Release and Waiver is not signed or is signed but subsequently revoked,\nExecutive will not receive Severance Pay (if any) or any other benefits due under this Agreement.\n(f) Executive acknowledges that irreparable harm would result from any breach or threatened breach by Executive of the provisions of this\nAgreement, and monetary damages alone would not provide adequate relief for any such breach. Accordingly, if Executive breaches or threatens\nto breach this Agreement, Executive consents to injunctive relief in favor of Sears without the necessity of Sears posting bond. Moreover, any\naward of injunctive relief shall not preclude Sears from seeking or recovering any lawful compensatory damages which may have resulted from a\nbreach of this Agreement, including a forfeiture of any payments not yet made and a return of any payments already received by Executive.\n(g) Any waiver, or failure to seek enforcement or remedy for any breach or suspected breach, of any provision of this Agreement by Sears\nor Executive in any instance shall not be deemed a waiver of such provision in the future,\n(h) Executive may request (i) a waiver of the non-competition provisions of this Agreement or (ii) that the time frame in Section 6(b),\nabove, commence during Executive’s continued employment with Sears, by written request to the Chief Executive Officer of Sears or the\nequivalent. Such a request will be given reasonable consideration and may be granted, in whole or in part, or denied at Sears’ absolute discretion.\n7. Except as specifically provided in paragraphs (a) and (b) of Section 1 and Sections 6(e) and (f) and 10, such compensation and benefits\nshall not be reduced whether or not Executive obtains other employment (it being agreed, however, that Executive shall be obligated to seek\nother employment).\n8. Executive agrees, without receiving additional compensation, to fully and completely cooperate with Sears, both during and after the period\nof active employment, in all investigations, potential litigation or litigation in which Sears is involved or may become involved other than any\nsuch investigations, potential litigation or litigation between Sears and Executive. Sears will reimburse Executive for reasonable travel and out-\nof-pocket expenses incurred in connection with any such investigations, potential litigation or litigation.\n9. Executive agrees that both during and after the period of active employment with Sears, Executive will not voluntarily act as a witness,\nconsultant or expert for any person or party in any action against or involving Sears or any corporate relative of Sears, unless subject to judicial\nenforcement to appear as a fact witness only.\n10. In the event of a breach by Executive of any of the provisions of this Agreement, including but not limited to the non-disparagement\nprovision (Section 3 herein), and the non-competition provisions (Section 6 herein) of this Agreement, Sears obligation to make salary\ncontinuation or any other payments under this Agreement will immediately cease.\n11. If any provision(s) of this Agreement shall be found invalid, illegal, or unenforceable, in whole or in part, then such provision(s) shall be\nmodified or restricted so as to effectuate as nearly as possible in a valid and enforceable way the provisions hereof, or shall be\n-5-\ndeemed excised from this Agreement, as the case may require, and this Agreement shall be construed and enforced to the maximum extent\npermitted by law, as if such provision(s) had been originally incorporated herein as so modified or restricted or as if such provision(s) had not\nbeen originally incorporated herein, as the case may be.\n12. This Agreement will be governed under the internal laws of the state of Illinois without regard to principles of conflicts of laws. Executive\nagrees that the state and federal courts located in the state of Illinois shall have exclusive jurisdiction in any action, Suit or proceeding based on\nor arising out of this Agreement, and Executive hereby: (a) submits to the personal jurisdiction of such courts; (b) consents to the service of\nprocess in connection with any action, suit, or proceeding against Executive; and (c) waives any other requirement (whether imposed by statute,\nrule of court, or otherwise) with respect to personal jurisdiction, venue or service of process.\n13. Executive agrees to waive any right to a jury trial on any claim contending that this Agreement or the General Release and Waiver is\nillegal or unenforceable in whole or in part, and Executive agrees to try any claims brought in a court or tribunal without use of a jury or advisory\njury. Further, should any claim arising out of Executive’s employment or termination of employment be found by a court or tribunal of competent\njurisdiction to not be released by the General Release and Waiver, Executive agrees to try such claim to the court or tribunal without use of a jury\nor advisory jury.\n14. This Agreement does not constitute a contract of employment, and Executive acknowledges that Executive’s employment with Sears is\nterminable “at-will” by either party with or without cause and with or without notice.\n15. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Sears document, then the provisions\nof this Agreement will control. Executive shall not be eligible for any benefits under the Sears Transition Pay Plan or any successor severance\nplan or program. This Agreement will supersede any prior agreement between Executive and Sears with respect to the subject matter contained\nherein (with the exception of the Executive Non-Disclosure and Non-Solicitation of Employees Agreement dated\n,200 _)andmay\nbe amended only by a writing signed by an authorized officer of Sears.\n16. All compensation paid or provided to Executive under this Agreement shall be subject to any applicable federal, state or local income and\nemployment tax withholding requirements.\n17. Sears may assign its rights under this Agreement to any successor in interest, whether by merger, consolidation, sale of assets, or\notherwise. This Agreement shall be binding whether it is between Sears and Executive or between any successor or assignee of Sears or affiliate\nthereof and Executive.\n18. This Agreement may be executed in one or more counterparts, which together shall constitute a valid and binding agreement.\nIN WITNESS WHEREOF, Executive and Sears, by its duly authorized representative, have executed this Agreement effective as of the date\nset forth below.\nSEARS HOLDINGS CORPORATION\nBY:\nEXECUTIVE\nDate\nDate\n-6-\nNOTICE: YOU MAY CONSIDER THIS GENERAL RELEASE AND WAIVER FOR UP TO TWENTY-ONE (21) DAYS. IF YOU\nDECIDE TO SIGN IT, YOU MAY REVOKE THE GENERAL RELEASE AND WAIVER WITHIN SEVEN (7) DAYS AFTER\nSIGNING. ANY REVOCATION WITHIN THIS PERIOD MUST BE IMMEDIATELY SUBMITTED IN WRITING TO GENERAL\nCOUNSEL, SEARS HOLDINGS CORPORATION, 3333 BEVERLY ROAD, HOFFMAN ESTATES, IL 60179. YOU MAY WISH TO\nCONSULT WITH AN ATTORNEY BEFORE SIGNING THIS DOCUMENT.\nGENERAL RELEASE AND WAIVER\nIn consideration for the benefits that I will receive under the attached Executive Severance/Non-Compete Agreement, I and any person acting\nby, through, or under me hereby release, waive, and forever discharge Sears Holdings Corporation, its current and former agents, subsidiaries,\naffiliates, employees, officers, shareholders, successors, and assigns (“Sears”) from any and all liability, actions, charges, causes of action,\ndemands, damages, or claims for relief or remuneration of any kind whatsoever, whether known or unknown at this time, arising out of, or\nconnected with, my employment with Sears and the termination of my employment, including, but not limited to, all matters in law, in equity, in\ncontract (oral or written, express or implied), or in tort, or pursuant to statute, including any claim for age or other typos of discrimination under\nthe Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, or other federal, state,\nor local law or ordinance, to the fullest extent permitted under the law, including the Employee Retirement Income Security Act. This General\nRelease and Waiver does not apply to any claims or rights that may arise after the date that I signed this General Release and Waiver. I\nunderstand that Sears is not admitting to any violation of my rights or any duty or obligation owed to me.\nExcluded from this General Release and Waiver are my claims which cannot be waived by law, including but not limited to (1) the right to file\na charge with or participate in an investigation conducted by certain government agencies, (2) any rights or claims to benefits accrued under\nbenefit plans maintained by Sears pursuant to ERISA, and (3) any claims that cannot be waived under the Fair Labor Standards Act or Family\nand Medical Leave Act. I do, however, waive my right to any monetary recovery should any agency pursue any claims on my behalf. I represent\nand warrant that I have not filed any complaint, charge, or lawsuit against Sears with any governmental agency and/or any court.\nIn addition, I agree never to sue Sears in any forum for any claim covered by this General Release and Waiver except that I may bring a claim\nunder the ADEA to challenge this General Release and Waiver. If I violate this General Release and Waiver by suing Sears, other than under\nADEA, I shall be liable to Sears for its reasonable attorney’s fees and other litigation costs and expenses incurred in defending against such a\nsuit.\nI have read this General Release and Waiver and I understand its legal and binding effect. I am acting voluntarily and of my own free will in\nexecuting this General Release and Waiver.\nI have had the opportunity to seek, and I was advised in writing to seek, legal counsel prior to signing this General Release and Waiver.\nI was given at least twenty-one (21) days to consider signing this General Release and Waiver. Any immaterial modification of this General\nRelease and Waiver does not restart the twenty-one (21) day consideration period.\nI understand that, if I sign the General Release and Waiver, I can change my mind and revoke it within seven (7) days after signing it by\nnotifying the General Counsel of Sears in writing at Sears Holdings Corporation, 3333 Beverly Road, Hoffman Estates, Illinois 60179. I\nunderstand that this General Release and Waiver will not be effective until after this seven (7) day revocation period has expired.\nDate: SAMPLE ONLY — DO NOT SIGN\nSigned by: SAMPLE ONLY — DO NOT SIGN\nWitness by:\n-7-\nExecutive:\nDate:\n, 2005\nAppendix A\nto Executive Severance/Non-Compete Agreement\nIn addition to all companies otherwise meeting the definition of “Sears Competitor” in Section 6(b)(ii)(2) of the Executive Severance/Non-\nCompete Agreement to which this Appendix A is attached, the following companies are “Sears Competitors” for purposes of that Section 6(b)(i):\nRetail\nHome/Product Services\nDepartment Stores\nAce Hardware Corporation\nDillard’s, Inc.\nTruServe Corporation\nFederated Department Stores, Inc.\nLowe’s Companies, Inc.\nJ. C. Penney Company, Inc.\nMenard, Inc.\nKohls’ Corporation\nThe Home Depot, Inc.\nThe May Department Stores Company\nMervyn’s\nSaks Incorporated\nDiscount Stores\nOther\nKohl’s Corporation\nMaytag Corporation\nTarget Corporation\nWhirlpool Corporation\nWal-Mart Stores, Inc.\nThe ServiceMaster Company\nSpecialty Stores\nAutoZone, Inc.\nBed Bath & Beyond Inc.\nBest Buy Co., Inc.\nCarMax, Inc.\nCircuit City Stores, Inc.\nCompUSA Inc. (eliminate hyphen)\nFinlay Enterprises, Inc. (Jewelry)\nGap Inc.\nLimited Brands, Inc.\nLinens ‘n Things, Inc.\nOffice Depot, Inc.\nThe Pep Boys – Manny, Moe & Jack\nPier 1 Imports, Inc.\nTandy Brands Accessories, Inc.\nZale Corporation\n-8-
+76e22bbecfc356222b824027786adedc.pdf	effective_date jurisdiction party term	EX-99.(D)(7) 15 d701401dex99d7.htm AMENDMENT TO NON-DISCLOSURE AGREEMENT\nExhibit (d)(7)\nEXECUTION VERSION\nLOGO\nApril 6, 2014\nPRIVATE AND CONFIDENTIAL\nVocus, Inc.\n12051 Indian Creek Court\nBeltsville, MD 20705\nRe: Amendment to Non-Disclosure Agreement\nGentlemen:\nReference is made to that certain Non-Disclosure Agreement, dated December 20, 2013 (the “Non-Disclosure Agreement”), by and\nbetween Vocus, Inc. (the Company”) and GTCR LLC (“GTCR”), a copy of which is attached hereto as Exhibit A. Capitalized terms used but not\ndefined herein shall have the meanings given to such terms in the Non-Disclosure Agreement.\nGTCR and the Company hereby agree to amend and restate in its entirety the final sentence of Section 3 of the Non-Disclosure Agreement\nas follows:\n“Without limiting the generality of the foregoing and for purposes of clarification, except (a) with the prior written consent of Vocus or\n(b) for Jefferies Finance LLC, you agree that you shall not enter into any exclusivity agreement or arrangement with respect to a\nTransaction with any bank or other debt financing source. Notwithstanding anything in this Agreement to the contrary, you and your\nRepresentatives shall be permitted at any time prior to the termination of that certain Agreement and Plan of Merger, dated as of April 6,\n2014, by and among GTCR Valor Companies, Inc., a Delaware corporation, GTCR Valor Merger Sub, Inc., a Delaware corporation and\nwholly owned Subsidiary of Parent, and Vocus (the “Merger Agreement”) pursuant to Article X thereof (the “Termination Date”) to\ndisclose Evaluation Material, hold confidential discussions and negotiations, and disclose Transaction Information (only to the extent\nrelevant to such discussions and negotiations), with those persons identified on Annex I to this Agreement (each an “Initial Permitted\nDisclosure Party”) and, with the prior written consent of Vocus, the giving or withholding of which consent shall be in the sole discretion of\nVocus, any other person (each an “Additional Permitted Disclosure Party” and, together with each Initial Permitted Disclosure Party, a\n“Permitted Disclosure Party”) and, in each case, their respective Representatives regarding any equity or co-investment participation by\nsuch person with you in the Transaction or any transaction to acquire a portion of the equity or assets of Vocus or its subsidiaries; provided,\nthat consent of Vocus shall not be unreasonably withheld or delayed in the case of the first three (3) Additional Permitted Disclosure\nParties; provided, further, that each Permitted Disclosure Party is bound by a confidentiality agreement with you restricting the disclosure\nand use by such Permitted Disclosure Party and its Representatives of the fact and content of such discussions and negotiations, the\nEvaluation Material and the\nLOGO\nTransaction Information, containing terms (excluding standstill provisions) not less restrictive in the aggregate upon such persons than the\nterms applicable to you in this Agreement and providing that Vocus is an express third party beneficiary of such confidentiality agreement\n(each such agreement, an “Acceptable Confidentiality Agreement”) and, provided, further, that you shall not make any Evaluation Material\navailable to such persons or their respective Representatives until the commencement of the Marketing Period (as defined in the Merger\nAgreement). You shall provide to Vocus a complete copy of any Acceptable Confidentiality Agreement with any Permitted Disclosure\nParty promptly (and in any event within twenty-four (24) hours) following entry into any such agreement, including any amendments or\nsupplements thereof.”\nGTCR and the Company hereby agree to amend and restate in its entirety the first sentence of Section 5 of the Non-Disclosure Agreement\nas follows:\n“At any time after the Termination Date, upon the request of the Company for any reason, you shall (and will direct your Representatives\nto) promptly, and in any event no later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all\nEvaluation Material (including all copies, extracts and other reproductions thereof, whether in paper, electronic or other form or media)\nfurnished to you or your Representatives by or on behalf of the Company pursuant to this Agreement; provided, however, that you and your\nRepresentatives shall be entitled to retain one complete copy, in electronic archival storage form, of all Evaluation Material in accordance\nwith document retention laws or regulations applicable to you and to such other persons, as the case may be, but only to the extent that\nappropriate personnel whose primary function within your organization and within the organizations of such other persons, as the case may\nbe, is information technology or compliance in nature will have unrestricted access to such retained information; and provided, further,\nhowever, that your legal counsel will be entitled to retain one complete copy of Evaluation Material in paper format as may be necessary to\ndocument your consideration of a Transaction for the purpose of establishing compliance with any applicable laws or regulations and for\ndefending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this Agreement or the Evaluation\nMaterial; provided, that all such information shall continue to be kept confidential and shall be stored only in counsel’s record archives to\nwhich access is not made generally available.”\nGTCR and the Company hereby agree to amend and restate in its entirety Section 10 of the Non-Disclosure Agreement as follows:\n“10. [Reserved.]”\nGTCR and the Company hereby agree to amend the Non-Disclosure Agreement by attaching thereto as Annex I the Annex I attached to\nthis amendment to the Non-Disclosure Agreement.\nLOGO\nExcept as specifically set forth above, the Non-Disclosure Agreement shall remain in full force and effect and is hereby ratified and\nconfirmed.\nThis amendment to the Non-Disclosure Agreement shall be governed by, and construed in accordance with, the internal procedural and\nsubstantive laws of the State of Delaware, without reference to the conflict of law principles of that state.\nThe parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of the state courts of the State of\nDelaware or of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this\namendment to the Non-Disclosure Agreement and the transactions contemplated hereby, and further agree that service of any process, summons,\nnotice or document by United States registered mail, postage prepaid, to their address set forth herein shall be effective service of process for any\naction, suit or proceeding brought against it in any such court. The parties to this amendment to the Non-Disclosure Agreement hereby\nirrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the\ntransactions contemplated hereby, in the state courts of the State of Delaware or of the United State District Court for the District of Delaware,\nand hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or\nproceeding brought in any such court has been brought in an inconvenient forum.\n[Remainder of page intentionally left blank.]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to this amendment to the Non-Disclosure\nAgreement, whereupon this amendment to the Non-Disclosure Agreement shall become a binding agreement.\nVery Truly Yours,\nGTCR LLC\nBy: /s/ Mark M. Anderson\nName: Mark M. Anderson\nTitle: Manager\n[Signature Page to Amendment to Non-Disclosure Agreement]\nAGREED AND ACCEPTED\nas of the 6th day of April, 2014:\nVOCUS, INC.\nBy: /s/ Richard Rudman\nName: Richard Rudman\nTitle: Chief Executive Officer and President\n[Signature Page to Amendment to Non-Disclosure Agreement]	EX-99.(D)(7) 15 d701401dex99d7.htm AMENDMENT TO NON-DISCLOSURE AGREEMENT\nExhibit (d)(7)\nEXECUTION VERSION\n. LOGO\nApril 6, 2014\nPRIVATE AND CONFIDENTIAL\nVocus, Inc.\n12051 Indian Creek Court\nBeltsville, MD 20705\nRe: Amendment to Non-Disclosure Agreement\nGentlemen:\nReference is made to that certain Non-Disclosure Agreement, dated December 20, 2013 (the “Non-Disclosure Agreement”), by and\nbetween Vocus, Inc. (the Company”) and GTCR LLC (“GTCR”), a copy of which is attached hereto as Exhibit A. Capitalized terms used but not\ndefined herein shall have the meanings given to such terms in the Non-Disclosure Agreement.\n \nGTCR and the Company hereby agree to amend and restate in its entirety the final sentence of Section 3 of the Non-Disclosure Agreement\nas follows:\n“Without limiting the generality of the foregoing and for purposes of clarification, except (a) with the prior written consent of Vocus or\n(b) for Jefferies Finance LL.C, you agree that you shall not enter into any exclusivity agreement or arrangement with respect to a\nTransaction with any bank or other debt financing source. Notwithstanding anything in this Agreement to the contrary, you and your\nRepresentatives shall be permitted at any time prior to the termination of that certain Agreement and Plan of Merger, dated as of April 6,\n2014, by and among GTCR Valor Companies, Inc., a Delaware corporation, GTCR Valor Merger Sub, Inc., a Delaware corporation and\nwholly owned Subsidiary of Parent, and Vocus (the “Merger Agreement”) pursuant to Article X thereof (the “Termination Date”) to\ndisclose Evaluation Material, hold confidential discussions and negotiations, and disclose Transaction Information (only to the extent\nrelevant to such discussions and negotiations), with those persons identified on Annex I to this Agreement (each an “Initial Permitted\nDisclosure Party”) and, with the prior written consent of Vocus, the giving or withholding of which consent shall be in the sole discretion of\nVocus, any other person (each an “Additional Permitted Disclosure Party” and, together with each Initial Permitted Disclosure Party, a\n“Permitted Disclosure Party”) and, in each case, their respective Representatives regarding any equity or co-investment participation by\nsuch person with you in the Transaction or any transaction to acquire a portion of the equity or assets of Vocus or its subsidiaries; provided,\nthat consent of Vocus shall not be unreasonably withheld or delayed in the case of the first three (3) Additional Permitted Disclosure\nParties; provided, further, that each Permitted Disclosure Party is bound by a confidentiality agreement with you restricting the disclosure\nand use by such Permitted Disclosure Party and its Representatives of the fact and content of such discussions and negotiations, the\nEvaluation Material and the\n \n».LOGO\nTransaction Information, containing terms (excluding standstill provisions) not less restrictive in the aggregate upon such persons than the\nterms applicable to you in this Agreement and providing that Vocus is an express third party beneficiary of such confidentiality agreement\n(each such agreement, an “Acceptable Confidentiality Agreement”) and, provided, further, that you shall not make any Evaluation Material\navailable to such persons or their respective Representatives until the commencement of the Marketing Period (as defined in the Merger\nAgreement). You shall provide to Vocus a complete copy of any Acceptable Confidentiality Agreement with any Permitted Disclosure\nParty promptly (and in any event within twenty-four (24) hours) following entry into any such agreement, including any amendments or\nsupplements thereof.”\nGTCR and the Company hereby agree to amend and restate in its entirety the first sentence of Section 5 of the Non-Disclosure Agreement\nas follows:\n“At any time after the Termination Date, upon the request of the Company for any reason, you shall (and will direct your Representatives\nto) promptly, and in any event no later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all\nEvaluation Material (including all copies, extracts and other reproductions thereof, whether in paper, electronic or other form or media)\nfurnished to you or your Representatives by or on behalf of the Company pursuant to this Agreement; provided, however, that you and your\nRepresentatives shall be entitled to retain one complete copy, in electronic archival storage form, of all Evaluation Material in accordance\nwith document retention laws or regulations applicable to you and to such other persons, as the case may be, but only to the extent that\nappropriate personnel whose primary function within your organization and within the organizations of such other persons, as the case may\nbe, is information technology or compliance in nature will have unrestricted access to such retained information; and provided, further,\nhowever, that your legal counsel will be entitled to retain one complete copy of Evaluation Material in paper format as may be necessary to\ndocument your consideration of a Transaction for the purpose of establishing compliance with any applicable laws or regulations and for\ndefending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this Agreement or the Evaluation\nMaterial; provided, that all such information shall continue to be kept confidential and shall be stored only in counsel’s record archives to\nwhich access is not made generally available.”\nGTCR and the Company hereby agree to amend and restate in its entirety Section 10 of the Non-Disclosure Agreement as follows:\n“10. [Reserved.]”\nGTCR and the Company hereby agree to amend the Non-Disclosure Agreement by attaching thereto as Annex I the Annex I attached to\nthis amendment to the Non-Disclosure Agreement.\n».LOGO\nExcept as specifically set forth above, the Non-Disclosure Agreement shall remain in full force and effect and is hereby ratified and\nconfirmed.\nThis amendment to the Non-Disclosure Agreement shall be governed by, and construed in accordance with, the internal procedural and\nsubstantive laws of the State of Delaware, without reference to the conflict of law principles of that state.\nThe parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of the state courts of the State of\nDelaware or of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this\namendment to the Non-Disclosure Agreement and the transactions contemplated hereby, and further agree that service of any process, summons,\nnotice or document by United States registered mail, postage prepaid, to their address set forth herein shall be effective service of process for any\naction, suit or proceeding brought against it in any such court. The parties to this amendment to the Non-Disclosure Agreement hereby\nirrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the\ntransactions contemplated hereby, in the state courts of the State of Delaware or of the United State District Court for the District of Delaware,\nand hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or\nproceeding brought in any such court has been brought in an inconvenient forum.\n[Remainder of page intentionally left blank.]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to this amendment to the Non-Disclosure\nAgreement, whereupon this amendment to the Non-Disclosure Agreement shall become a binding agreement.\nVery Truly Yours,\nGTCRLLC\nBy: /s/ Mark M. Anderson\nName: Mark M. Anderson\nTitle: Manager\n[Signature Page to Amendment to Non-Disclosure Agreement]\nAGREED AND ACCEPTED\nas of the 6th day of April, 2014:\nVOCUS, INC.\nBy: /s/ Richard Rudman\nName: Richard Rudman\nTitle: Chief Executive Officer and President\n[Signature Page to Amendment to Non-Disclosure Agreement]	EX-99.(D)(7) 15 d701401dex99d7.htm AMENDMENT TO NON-DISCLOSURE AGREEMENT\nExhibit (d)(7)\nEXECUTION VERSION\nLOGO\nApril 6, 2014\nPRIVATE AND CONFIDENTIAL\nVocus, Inc.\n12051 Indian Creek Court\nBeltsville, MD 20705\nRe: Amendment to Non-Disclosure Agreement\nGentlemen:\nReference is made to that certain Non-Disclosure Agreement, dated December 20, 2013 (the "Non-Disclosure Agreement"), by and\nbetween Vocus, Inc. (the Company.") and GTCR LLC ("GTCR"), a copy of which is attached hereto as Exhibit A. Capitalized terms used but not\ndefined herein shall have the meanings given to such terms in the Non-Disclosure Agreement.\nGTCR and the Company hereby agree to amend and restate in its entirety the final sentence of Section 3 of the Non-Disclosure Agreement\nas follows:\n"Without limiting the generality of the foregoing and for purposes of clarification, except (a) with the prior written consent of Vocus or\n(b) for Jefferies Finance LLC, you agree that you shall not enter into any exclusivity agreement or arrangement with respect to a\nTransaction with any bank or other debt financing source. Notwithstanding anything in this Agreement to the contrary, you and your\nRepresentatives shall be permitted at any time prior to the termination of that certain Agreement and Plan of Merger, dated as of April 6,\n2014, by and among GTCR Valor Companies, Inc., a Delaware corporation, GTCR Valor Merger Sub, Inc., a Delaware corporation and\nwholly owned Subsidiary of Parent, and Vocus (the "Merger Agreement") pursuant to Article X thereof (the "Termination Date") to\ndisclose Evaluation Material, hold confidential discussions and negotiations, and disclose Transaction Information (only to the extent\nrelevant to such discussions and negotiations), with those persons identified on Annex I to this Agreement (each an "Initial Permitted\nDisclosure Party.") and, with the prior written consent of Vocus, the giving or withholding of which consent shall be in the\nsole\ndiscretion\nof\nVocus, any other person (each an "Additional Permitted Disclosure Party." and, together with each Initial Permitted Disclosure Party, a\n"Permitted Disclosure Party.") and, in each case, their respective Representatives regarding any equity or co-investment participation by\nsuch person with you in the Transaction or any transaction to acquire a portion of the equity or assets of Vocus or its subsidiaries; provided,\nthat consent of Vocus shall not be unreasonably withheld or delayed in the case of the first three (3) Additional Permitted Disclosure\nParties; provided, further, that each Permitted Disclosure Party is bound by a confidentiality agreement with you restricting the disclosure\nand use by such Permitted Disclosure Party and its Representatives of the fact and content of such discussions and negotiations, the\nEvaluation Material and the\nLOGO\nTransaction Information, containing terms (excluding standstill provisions) not less restrictive in the aggregate upon such persons than the\nterms applicable to you in this Agreement and providing that Vocus is an express third party beneficiary of such confidentiality agreement\n(each such agreement, an "Acceptable Confidentiality Agreement") and, provided, further, that you shall not make any Evaluation Material\navailable to such persons or their respective Representatives until the commencement of the Marketing Period (as defined in the Merger\nAgreement). You shall provide to Vocus a complete copy of any Acceptable Confidentiality Agreement with any Permitted Disclosure\nParty promptly (and in any event within twenty-four (24) hours) following entry into any such agreement, including any amendments\nor\nsupplements thereof."\nGTCR and the Company hereby agree to amend and restate in its entirety the first sentence of Section 5 of the Non-Disclosure Agreement\nas follows:\n"At any time after the Termination Date, upon the request of the Company for any reason, you shall (and will direct your Representatives\nto) promptly, and in any event no later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all\nEvaluation Material (including all copies, extracts and other reproductions thereof, whether in paper, electronic or other form or media)\nfurnished to you or your Representatives by or on behalf of the Company pursuant to this Agreement; provided, however, that you and your\nRepresentatives shall be entitled to retain one complete copy, in electronic archival storage form, of all Evaluation Material in accordance\nwith document retention laws or regulations applicable to you and to such other persons, as the case may be, but only to the extent that\nappropriate personnel whose primary function within your organization and within the organizations of such other persons, as the case may\nbe, is information technology or compliance in nature will have unrestricted access to such retained information; and provided, further,\nhowever, that your legal counsel will be entitled to retain one complete copy of Evaluation Material in paper format as may be necessary to\ndocument your consideration of a Transaction for the purpose of establishing compliance with any applicable laws or regulations and for\ndefending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this Agreement or the Evaluation\nMaterial; provided, that all such information shall continue to be kept confidential and shall be stored only in counsel's record archives to\nwhich access is not made generally available."\nGTCR and the Company hereby agree to amend and restate in its entirety Section 10 of the Non-Disclosure Agreement as follows:\n"10. [Reserved.]"\nGTCR and the Company hereby agree to amend the Non-Disclosure Agreement by attaching thereto as Annex I the Annex I attached to\nthis amendment to the Non-Disclosure Agreement.\nALOGO\nExcept as specifically set forth above, the Non-Disclosure Agreement shall remain in full force and effect and is hereby ratified and\nconfirmed.\nThis amendment to the Non-Disclosure Agreement shall be governed by, and construed in accordance with, the internal procedural and\nsubstantive laws of the State of Delaware, without reference to the conflict of law principles of that state.\nThe parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of the state courts of the State of\nDelaware or of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this\namendment to the Non-Disclosure Agreement and the transactions contemplated hereby, and further agree that service of any process, summons,\nnotice or document by United States registered mail, postage prepaid, to their address set forth herein shall be effective service of process for\nany\naction, suit or proceeding brought against it in any such court. The parties to this amendment to the Non-Disclosure Agreement hereby\nirrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the\ntransactions contemplated hereby, in the state courts of the State of Delaware or of the United State District Court for the District of Delaware,\nand hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or\nproceeding brought in any such court has been brought in an inconvenient forum.\n[Remainder of page intentionally left blank.]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to this amendment to the Non-Disclosure\nAgreement, whereupon this amendment to the Non-Disclosure Agreement shall become a binding agreement.\nVery Truly Yours,\nGTCR LLC\nBy: /s/ Mark M. Anderson\nName: Mark M. Anderson\nTitle: Manager\n[Signature Page to Amendment to Non-Disclosure Agreement]\nAGREED AND ACCEPTED\nas of the 6th day of April, 2014:\nVOCUS, INC.\nBy: /s/ Richard Rudman\nName: Richard Rudman\nTitle: Chief Executive Officer and President\n[Signature Page to Amendment to Non-Disclosure Agreement]	EX-99.(D)(7) 15 d701401dex99d7.htm AMENDMENT TO NON-DISCLOSURE AGREEMENT\nExhibit (d)(7)\nEXECUTION VERSION\nLOGO\nApril 6, 2014\nPRIVATE AND CONFIDENTIAL\nVocus, Inc.\n12051 Indian Creek Court\nBeltsville, MD 20705\nRe: Amendment to Non-Disclosure Agreement\nGentlemen:\nReference is made to that certain Non-Disclosure Agreement, dated December 20, 2013 (the “Non-Disclosure Agreement”), by and\nbetween Vocus, Inc. (the Company”) and GTCR LLC (“GTCR”), a copy of which is attached hereto as Exhibit A. Capitalized terms used but not\ndefined herein shall have the meanings given to such terms in the Non-Disclosure Agreement.\nGTCR and the Company hereby agree to amend and restate in its entirety the final sentence of Section 3 of the Non-Disclosure Agreement\nas follows:\n“Without limiting the generality of the foregoing and for purposes of clarification, except (a) with the prior written consent of Vocus or\n(b) for Jefferies Finance LLC, you agree that you shall not enter into any exclusivity agreement or arrangement with respect to a\nTransaction with any bank or other debt financing source. Notwithstanding anything in this Agreement to the contrary, you and your\nRepresentatives shall be permitted at any time prior to the termination of that certain Agreement and Plan of Merger, dated as of April 6,\n2014, by and among GTCR Valor Companies, Inc., a Delaware corporation, GTCR Valor Merger Sub, Inc., a Delaware corporation and\nwholly owned Subsidiary of Parent, and Vocus (the “Merger Agreement”) pursuant to Article X thereof (the “Termination Date”) to\ndisclose Evaluation Material, hold confidential discussions and negotiations, and disclose Transaction Information (only to the extent\nrelevant to such discussions and negotiations), with those persons identified on Annex I to this Agreement (each an “Initial Permitted\nDisclosure Party”) and, with the prior written consent of Vocus, the giving or withholding of which consent shall be in the sole discretion of\nVocus, any other person (each an “Additional Permitted Disclosure Party” and, together with each Initial Permitted Disclosure Party, a\n“Permitted Disclosure Party”) and, in each case, their respective Representatives regarding any equity or co-investment participation by\nsuch person with you in the Transaction or any transaction to acquire a portion of the equity or assets of Vocus or its subsidiaries; provided,\nthat consent of Vocus shall not be unreasonably withheld or delayed in the case of the first three (3) Additional Permitted Disclosure\nParties; provided, further, that each Permitted Disclosure Party is bound by a confidentiality agreement with you restricting the disclosure\nand use by such Permitted Disclosure Party and its Representatives of the fact and content of such discussions and negotiations, the\nEvaluation Material and the\nLOGO\nTransaction Information, containing terms (excluding standstill provisions) not less restrictive in the aggregate upon such persons than the\nterms applicable to you in this Agreement and providing that Vocus is an express third party beneficiary of such confidentiality agreement\n(each such agreement, an “Acceptable Confidentiality Agreement”) and, provided, further, that you shall not make any Evaluation Material\navailable to such persons or their respective Representatives until the commencement of the Marketing Period (as defined in the Merger\nAgreement). You shall provide to Vocus a complete copy of any Acceptable Confidentiality Agreement with any Permitted Disclosure\nParty promptly (and in any event within twenty-four (24) hours) following entry into any such agreement, including any amendments or\nsupplements thereof.”\nGTCR and the Company hereby agree to amend and restate in its entirety the first sentence of Section 5 of the Non-Disclosure Agreement\nas follows:\n“At any time after the Termination Date, upon the request of the Company for any reason, you shall (and will direct your Representatives\nto) promptly, and in any event no later than 10 days after receipt of the request, deliver to the Company, or at your option, destroy, all\nEvaluation Material (including all copies, extracts and other reproductions thereof, whether in paper, electronic or other form or media)\nfurnished to you or your Representatives by or on behalf of the Company pursuant to this Agreement; provided, however, that you and your\nRepresentatives shall be entitled to retain one complete copy, in electronic archival storage form, of all Evaluation Material in accordance\nwith document retention laws or regulations applicable to you and to such other persons, as the case may be, but only to the extent that\nappropriate personnel whose primary function within your organization and within the organizations of such other persons, as the case may\nbe, is information technology or compliance in nature will have unrestricted access to such retained information; and provided, further,\nhowever, that your legal counsel will be entitled to retain one complete copy of Evaluation Material in paper format as may be necessary to\ndocument your consideration of a Transaction for the purpose of establishing compliance with any applicable laws or regulations and for\ndefending and maintaining any litigation (or any arbitral or administrative case or proceeding) relating to this Agreement or the Evaluation\nMaterial; provided, that all such information shall continue to be kept confidential and shall be stored only in counsel’s record archives to\nwhich access is not made generally available.”\nGTCR and the Company hereby agree to amend and restate in its entirety Section 10 of the Non-Disclosure Agreement as follows:\n“10. [Reserved.]”\nGTCR and the Company hereby agree to amend the Non-Disclosure Agreement by attaching thereto as Annex I the Annex I attached to\nthis amendment to the Non-Disclosure Agreement.\nLOGO\nExcept as specifically set forth above, the Non-Disclosure Agreement shall remain in full force and effect and is hereby ratified and\nconfirmed.\nThis amendment to the Non-Disclosure Agreement shall be governed by, and construed in accordance with, the internal procedural and\nsubstantive laws of the State of Delaware, without reference to the conflict of law principles of that state.\nThe parties to this Agreement hereby irrevocably and unconditionally consent to submit to the jurisdiction of the state courts of the State of\nDelaware or of the United States District Court for the District of Delaware for any actions, suits or proceedings arising out of or relating to this\namendment to the Non-Disclosure Agreement and the transactions contemplated hereby, and further agree that service of any process, summons,\nnotice or document by United States registered mail, postage prepaid, to their address set forth herein shall be effective service of process for any\naction, suit or proceeding brought against it in any such court. The parties to this amendment to the Non-Disclosure Agreement hereby\nirrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the\ntransactions contemplated hereby, in the state courts of the State of Delaware or of the United State District Court for the District of Delaware,\nand hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit or\nproceeding brought in any such court has been brought in an inconvenient forum.\n[Remainder of page intentionally left blank.]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to this amendment to the Non-Disclosure\nAgreement, whereupon this amendment to the Non-Disclosure Agreement shall become a binding agreement.\nVery Truly Yours,\nGTCR LLC\nBy: /s/ Mark M. Anderson\nName: Mark M. Anderson\nTitle: Manager\n[Signature Page to Amendment to Non-Disclosure Agreement]\nAGREED AND ACCEPTED\nas of the 6th day of April, 2014:\nVOCUS, INC.\nBy: /s/ Richard Rudman\nName: Richard Rudman\nTitle: Chief Executive Officer and President\n[Signature Page to Amendment to Non-Disclosure Agreement]
+782c651fc7cf288ec2f8857de0d6bb58.pdf	effective_date jurisdiction party term	EX-10.1 2 dex101.htm NON-SOLICITATION/NON -ACCEPT AND CONFIDENTIALITY AGREEMENT AND\nRELEASE\nExhibit 10.1\nNON-SOLICITATION/NON -ACCEPT AND\nCONFIDENTIALITY AGREEMENT AND RELEASE\nIn consideration of the Special Stock Award granted to me by Boston Private Financial Holdings, (the “Company” which for purposes of this\nAgreement shall include any and all of Boston Private Financial Holdings’ wholly or partially owned subsidiaries) pursuant to the Boston Private\nFinancial Holdings, Inc. 2004 Stock Option and Incentive Plan, (the “Plan”), which is attached hereto, I hereby agree as follows:\n1. During the term of my employment and thereafter, I agree to keep secret and retain in strictest confidence, and will not disclose, without the\nprior written consent of the Company, any Confidential Information. I understand that the term “Confidential Information” includes, but is not\nlimited to, any information relating to the business or affairs of the Company including but not limited to financial statements, business plans,\npersonnel, operations, technology, customer lists and identities, potential customers, employees, servicing methods, strategies, analyses, profit\nmargins or other proprietary information in connection with the Company; provided, however, that Confidential Information shall not include any\ninformation which is in the public domain or becomes known in the industry through no wrongful act on my part. I further agree and acknowledge\nthat the Confidential Information is vital, sensitive, confidential and proprietary to the Company.\n2. During the term of my employment with the Company, and for a period ending on the second anniversary of the effective date of my\ntermination of employment with the Company, I will not directly or indirectly:\n(a) solicit or accept for employment or employ any person then, or within the prior six (6) months, employed by the Company, or request,\ninfluence or advise any person who is employed by or is in the service of the Company to leave such employment or service of the Company;\nor\n(b) influence or advise any business that is or may be competitive with the business of the Company to employ or otherwise engage the\nservices of any person who is employed by or is in the service of the Company; or\n(c) solicit or accept any customer of the Company or request, induce or advise any customer of the Company to withdraw, curtail,\ndiminish, terminate or cancel their business with the Company.\nFor purposes of this Agreement, I understand and acknowledge that a business is or may be “competitive” with the Company if such business\nis engaged in banking, investment management, financial planning, trust administration or other related financial services.\nI hereby acknowledge the necessity of the protection provided to the Company under this Agreement. I have carefully considered the nature\nand scope of such protection. The Company and I hereby agree that the unique nature of the business of the Company requires the protection\nspecified in this Agreement. The consideration provided for in this Agreement and in the Awards is sufficient and adequate to compensate me for\nagreeing to the restrictions contained herein. I\nacknowledge that I can continue to actively pursue my career and earn sufficient compensation without breaching any of the foregoing restrictions.\nThe period of this Agreement is expressly represented and agreed to be fair, reasonable and necessary.\n3. I hereby acknowledge that upon my breach of any of the covenants contained in this Agreement, the Company will suffer irreparable\ndamages for which the remedy at law will be inadequate, and that an injunction may be entered against me by any court having jurisdiction,\nrestraining me from breaching any of the provisions of this agreement or continuing the breach of any such provisions. Resort to such equitable\nrelief, however, shall not be construed to be a waiver by the Company of any other rights or remedies that they may have damages or otherwise.\n4. I recognize that during my employment with the Company I will be required to comply with all reasonable rules and regulations relating to\nsuch employment as may from time to time be promulgated by the Company. It is my understanding that the Company may terminate my\nemployment by it at any time, with or without cause. Subject to the terms and conditions set forth in: (i) the Plan and any Awards granted to me\nthereunder, (ii) the restricted stock agreement, and (iii) any written offers containing terms of employment, this Agreement contains the entire\nunderstanding and agreement between the parties and cannot be amended, modified or supplemented in any respect, except as permitted under the\nPlan or by a subsequent written agreement entered into by both parties. I acknowledge that this Agreement and my receipt of Awards under the Plan\nextinguishes all commitments or obligations of the Company whether or not in writing, which may have been made to me regarding receipt of or\nparticipation in long-term incentive compensation awards in or by the Company.\n5. This Agreement is binding upon and will inure to the benefit of any successor to the Company whether by way of a merger, purchase,\nconsolidation or otherwise but only to the extent the successor to the Company continues to maintain the Plan.\n6. This Agreement shall be construed in accordance with and governed by the substantive laws of the State of Massachusetts without regard to\nconflict of law provisions.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date shown below.\nJ.H . Cromarty\nEMPLOYEE\nTimothy L. Vaill\nFOR THE COMPANY\n/s/ J.H. Cromarty\nSignature\n/s/ Timothy L. Vaill\nSignature\nDATE: March 1, 2005\n2	EX-10.1 2 dex101.htm NON-SOLICITATION/NON-ACCEPT AND CONFIDENTIALITY AGREEMENT AND\nRELEASE\nExhibit 10.1\nNON-SOLICITATION/NON-ACCEPT AND\nCONFIDENTIALITY AGREEMENT AND RELEASE\nIn consideration of the Special Stock Award granted to me by Boston Private Financial Holdings, (the “Company” which for purposes of this\nAgreement shall include any and all of Boston Private Financial Holdings” wholly or partially owned subsidiaries) pursuant to the Boston Private\nFinancial Holdings, Inc. 2004 Stock Option and Incentive Plan, (the “Plan”), which is attached hereto, I hereby agree as follows:\n1. During the term of my employment and thereafter, I agree to keep secret and retain in strictest confidence, and will not disclose, without the\nprior written consent of the Company, any Confidential Information. I understand that the term “Confidential Information” includes, but is not\nlimited to, any information relating to the business or affairs of the Company including but not limited to financial statements, business plans,\npersonnel, operations, technology, customer lists and identities, potential customers, employees, servicing methods, strategies, analyses, profit\nmargins or other proprietary information in connection with the Company; provided, however, that Confidential Information shall not include any\ninformation which is in the public domain or becomes known in the industry through no wrongful act on my part. I further agree and acknowledge\nthat the Confidential Information is vital, sensitive, confidential and proprietary to the Company.\n2. During the term of my employment with the Company, and for a period ending on the second anniversary of the effective date of my\ntermination of employment with the Company, I will not directly or indirectly:\n(a) solicit or accept for employment or employ any person then, or within the prior six (6) months, employed by the Company, or request,\ninfluence or advise any person who is employed by or is in the service of the Company to leave such employment or service of the Company;\nor\n(b) influence or advise any business that is or may be competitive with the business of the Company to employ or otherwise engage the\nservices of any person who is employed by or is in the service of the Company; or\n(c) solicit or accept any customer of the Company or request, induce or advise any customer of the Company to withdraw, curtail,\ndiminish, terminate or cancel their business with the Company.\nFor purposes of this Agreement, I understand and acknowledge that a business is or may be “competitive” with the Company if such business\nis engaged in banking, investment management, financial planning, trust administration or other related financial services.\nI hereby acknowledge the necessity of the protection provided to the Company under this Agreement. I have carefully considered the nature\nand scope of such protection. The Company and I hereby agree that the unique nature of the business of the Company requires the protection\nspecified in this Agreement. The consideration provided for in this Agreement and in the Awards is sufficient and adequate to compensate me for\nagreeing to the restrictions contained herein. I\nacknowledge that I can continue to actively pursue my career and earn sufficient compensation without breaching any of the foregoing restrictions.\nThe period of this Agreement is expressly represented and agreed to be fair, reasonable and necessary.\n3. I hereby acknowledge that upon my breach of any of the covenants contained in this Agreement, the Company will suffer irreparable\ndamages for which the remedy at law will be inadequate, and that an injunction may be entered against me by any court having jurisdiction,\nrestraining me from breaching any of the provisions of this agreement or continuing the breach of any such provisions. Resort to such equitable\nrelief, however, shall not be construed to be a waiver by the Company of any other rights or remedies that they may have damages or otherwise.\n4.1recognize that during my employment with the Company I will be required to comply with all reasonable rules and regulations relating to\nsuch employment as may from time to time be promulgated by the Company. It is my understanding that the Company may terminate my\nemployment by it at any time, with or without cause. Subject to the terms and conditions set forth in: (i) the Plan and any Awards granted to me\nthereunder, (ii) the restricted stock agreement, and (iii) any written offers containing terms of employment, this Agreement contains the entire\nunderstanding and agreement between the parties and cannot be amended, modified or supplemented in any respect, except as permitted under the\nPlan or by a subsequent written agreement entered into by both parties. I acknowledge that this Agreement and my receipt of Awards under the Plan\nextinguishes all commitments or obligations of the Company whether or not in writing, which may have been made to me regarding receipt of or\nparticipation in long-term incentive compensation awards in or by the Company.\n5. This Agreement is binding upon and will inure to the benefit of any successor to the Company whether by way of a merger, purchase,\nconsolidation or otherwise but only to the extent the successor to the Company continues to maintain the Plan.\n6. This Agreement shall be construed in accordance with and governed by the substantive laws of the State of Massachusetts without regard to\nconflict of law provisions.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date shown below.\nJ.H. Cromarty Timothy L. Vaill\nEMPLOYEE FOR THE COMPANY\n/s/ J.H. Cromarty /s/  Timothy L. Vaill\nSignature Signature\nDATE: March 1, 2005	EX-10.1 2 dex101.htm NON-SOLICITATION/NON-ACCEPT AND CONFIDENTIALITY AGREEMENT AND\nRELEASE\nExhibit 10.1\nNON-SOLICITATIONNON-ACCEPT AND\nCONFIDENTIALITY AGREEMENT AND RELEASE\nIn consideration of the Special Stock Award granted to me by Boston Private Financial Holdings, (the "Company" which for purposes of this\nAgreement shall include any and all of Boston Private Financial Holdings' wholly or partially owned subsidiaries) pursuant to the Boston Private\nFinancial Holdings, Inc. 2004 Stock Option and Incentive Plan, (the "Plan"), which is attached hereto, I hereby agree as follows:\n1. During the term of my employment and thereafter, I agree to keep secret and retain in strictest confidence, and will not disclose, without the\nprior written consent of the Company, any Confidential Information. I understand that the term "Confidential Information" includes, but is not\nlimited to, any information relating to the business or affairs of the Company including but not limited to financial statements, business plans,\npersonnel, operations, technology, customer lists and identities, potential customers, employees, servicing methods, strategies, analyses, profit\nmargins or other proprietary information in connection with the Company; provided, however, that Confidential Information shall not include any\ninformation which is in the public domain or becomes known in the industry through no wrongful act on my part. I further agree and acknowledge\nthat the Confidential Information is vital, sensitive, confidential and proprietary to the Company.\n2. During the term of my employment with the Company, and for a period ending on the second anniversary of the effective date of my\ntermination of employment with the Company, I will not directly or indirectly:\n(a) solicit or accept for employment or employ any person then, or within the prior six (6) months, employed by the Company, or request,\ninfluence or advise any person who is employed by or is in the service of the Company to leave such employment or service of the Company;\nor\n(b) influence or advise any business that is or may be competitive with the business of the Company to employ or otherwise engage the\nservices of any person who is employed by or is in the service of the Company; or\n(c) solicit or accept any customer of the Company or request, induce or advise any customer of the Company to withdraw, curtail,\ndiminish, terminate or cancel their business with the Company.\nFor purposes of this Agreement, I understand and acknowledge that a business is or may be "competitive" with the Company if such business\nis engaged in banking, investment management, financial planning, trust administration or other related financial services.\nI hereby acknowledge the necessity of the protection provided to the Company under this Agreement. I have carefully considered the nature\nand scope of such protection. The Company and I hereby agree that the unique nature of the business of the Company requires the protection\nspecified in this Agreement. The consideration provided for in this Agreement and in the Awards is sufficient and adequate to compensate me for\nagreeing to the restrictions contained herein. I\nacknowledge that I can continue to actively pursue my career and earn sufficient compensation without breaching any of the foregoing restrictions.\nThe period of this Agreement is expressly represented and agreed to be fair, reasonable and necessary.\n3. I hereby acknowledge that upon my breach of any of the covenants contained in this Agreement, the Company will suffer irreparable\ndamages for which the remedy at law will be inadequate, and that an injunction may be entered against me by any court having jurisdiction,\nrestraining me from breaching any of the provisions of this agreement or continuing the breach of any such provisions. Resort to such equitable\nrelief, however, shall not be construed to be a waiver by the Company of any other rights or remedies that they may have damages or otherwise.\n4. I recognize that during my employment with the Company I will be required to comply with all reasonable rules and regulations relating\nto\nsuch employment as may from time to time be promulgated by the Company. It is my understanding that the Company may terminate my\nemployment by it at any time, with or without cause. Subject to the terms and conditions set forth in: (i) the Plan and any Awards granted to me\nthereunder, (ii) the restricted stock agreement, and (iii) any written offers containing terms of employment, this Agreement contains the entire\nunderstanding and agreement between the parties and cannot be amended, modified or supplemented in any respect, except as permitted under the\nPlan or by a subsequent written agreement entered into by both parties. I acknowledge that this Agreement and my receipt of Awards under the Plan\nextinguishes all commitments or obligations of the Company whether or not in writing, which may have been made to me regarding receipt of or\nparticipation in long-term incentive compensation awards in or by the Company.\n5. This Agreement is binding upon and will inure to the benefit of any successor to the Company whether by way of a merger, purchase,\nconsolidation or otherwise but only to the extent the successor to the Company continues to maintain the Plan.\n6. This Agreement shall be construed in accordance with and governed by the substantive laws of the State of Massachusetts without regard to\nconflict of law provisions.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date shown below.\nJ.H. Cromarty\nTimothy L. Vaill\nEMPLOYEE\nFOR THE COMPANY\n/s/ J.H. Cromarty\n/s/ Timothy L. Vaill\nSignature\nSignature\nDATE: March 1, 2005\n2	EX-10.1 2 dex101.htm NON-SOLICITATION/NON -ACCEPT AND CONFIDENTIALITY AGREEMENT AND\nRELEASE\nExhibit 10.1\nNON-SOLICITATION/NON -ACCEPT AND\nCONFIDENTIALITY AGREEMENT AND RELEASE\nIn consideration of the Special Stock Award granted to me by Boston Private Financial Holdings, (the “Company” which for purposes of this\nAgreement shall include any and all of Boston Private Financial Holdings’ wholly or partially owned subsidiaries) pursuant to the Boston Private\nFinancial Holdings, Inc. 2004 Stock Option and Incentive Plan, (the “Plan”), which is attached hereto, I hereby agree as follows:\n1. During the term of my employment and thereafter, I agree to keep secret and retain in strictest confidence, and will not disclose, without the\nprior written consent of the Company, any Confidential Information. I understand that the term “Confidential Information” includes, but is not\nlimited to, any information relating to the business or affairs of the Company including but not limited to financial statements, business plans,\npersonnel, operations, technology, customer lists and identities, potential customers, employees, servicing methods, strategies, analyses, profit\nmargins or other proprietary information in connection with the Company; provided, however, that Confidential Information shall not include any\ninformation which is in the public domain or becomes known in the industry through no wrongful act on my part. I further agree and acknowledge\nthat the Confidential Information is vital, sensitive, confidential and proprietary to the Company.\n2. During the term of my employment with the Company, and for a period ending on the second anniversary of the effective date of my\ntermination of employment with the Company, I will not directly or indirectly:\n(a) solicit or accept for employment or employ any person then, or within the prior six (6) months, employed by the Company, or request,\ninfluence or advise any person who is employed by or is in the service of the Company to leave such employment or service of the Company;\nor\n(b) influence or advise any business that is or may be competitive with the business of the Company to employ or otherwise engage the\nservices of any person who is employed by or is in the service of the Company; or\n(c) solicit or accept any customer of the Company or request, induce or advise any customer of the Company to withdraw, curtail,\ndiminish, terminate or cancel their business with the Company.\nFor purposes of this Agreement, I understand and acknowledge that a business is or may be “competitive” with the Company if such business\nis engaged in banking, investment management, financial planning, trust administration or other related financial services.\nI hereby acknowledge the necessity of the protection provided to the Company under this Agreement. I have carefully considered the nature\nand scope of such protection. The Company and I hereby agree that the unique nature of the business of the Company requires the protection\nspecified in this Agreement. The consideration provided for in this Agreement and in the Awards is sufficient and adequate to compensate me for\nagreeing to the restrictions contained herein. I\nacknowledge that I can continue to actively pursue my career and earn sufficient compensation without breaching any of the foregoing restrictions.\nThe period of this Agreement is expressly represented and agreed to be fair, reasonable and necessary.\n3. I hereby acknowledge that upon my breach of any of the covenants contained in this Agreement, the Company will suffer irreparable\ndamages for which the remedy at law will be inadequate, and that an injunction may be entered against me by any court having jurisdiction,\nrestraining me from breaching any of the provisions of this agreement or continuing the breach of any such provisions. Resort to such equitable\nrelief, however, shall not be construed to be a waiver by the Company of any other rights or remedies that they may have damages or otherwise.\n4. I recognize that during my employment with the Company I will be required to comply with all reasonable rules and regulations relating to\nsuch employment as may from time to time be promulgated by the Company. It is my understanding that the Company may terminate my\nemployment by it at any time, with or without cause. Subject to the terms and conditions set forth in: (i) the Plan and any Awards granted to me\nthereunder, (ii) the restricted stock agreement, and (iii) any written offers containing terms of employment, this Agreement contains the entire\nunderstanding and agreement between the parties and cannot be amended, modified or supplemented in any respect, except as permitted under the\nPlan or by a subsequent written agreement entered into by both parties. I acknowledge that this Agreement and my receipt of Awards under the Plan\nextinguishes all commitments or obligations of the Company whether or not in writing, which may have been made to me regarding receipt of or\nparticipation in long-term incentive compensation awards in or by the Company.\n5. This Agreement is binding upon and will inure to the benefit of any successor to the Company whether by way of a merger, purchase,\nconsolidation or otherwise but only to the extent the successor to the Company continues to maintain the Plan.\n6. This Agreement shall be construed in accordance with and governed by the substantive laws of the State of Massachusetts without regard to\nconflict of law provisions.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date shown below.\nJ.H . Cromarty\nEMPLOYEE\nTimothy L. Vaill\nFOR THE COMPANY\n/s/ J.H. Cromarty\nSignature\n/s/ Timothy L. Vaill\nSignature\nDATE: March 1, 2005\n2
+79659d0946a4381a1a8ffdbc3231073e.pdf	effective_date jurisdiction party term	EX-10.3 5 dex103.htm NON-COMPETITION, NON-DISCLOSURE AND INTELLECTUAL AGREEMENT -\nGUNARS E. VALKIRS\nExhibit 10.3\nNON-COMPETITION, NON-DISCLOSURE\nAND\nINTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT\nThis Non-competition, Non-disclosure and Intellectual Property Assignment Agreement (the “Agreement”) entered into as of May 17, 2007, is\nhereby made by and between INVERNESS MEDICAL INNOVATIONS, INC., a Delaware corporation (the “Company”) and, BIOSITE\nINCORPORATED, a Delaware corporation (the “Employer”), on the one hand, and Gunars Valkirs, an individual, who is a resident of and employed\nin the State of California (“Employee”), on the other hand.\nA. The Company, Employer, and Inca Acquisition, Inc., a wholly-owned subsidiary of the Company, are entering into an Agreement and Plan\nof Merger dated as of May 17, 2007 (the “Merger Agreement”), which provides for the acquisition of Employer by the Company, upon which\nEmployer would become a wholly owned subsidiary of the Company;\nB. Employee, Company and Employer desire to enter into this Agreement in connection with the transactions contemplated by the Merger\nAgreement, contingent and effective upon the Effective Time (as defined in the Merger Agreement);\nC. Employee is the owner of 172,010 shares of Common Stock of Employer and has options to purchase 285,306 shares of Common Stock of\nEmployer (the “Employee Options”), and thereby stands to benefit by, and receive consideration from, the transactions contemplated by the Merger\nAgreement.\nD. Contingent and effective upon the Effective Time, Employee will become employed by Employer.\nE. Company and Employer desire to protect their interest in the business acquired, including the goodwill of that business, from unfair\ncompetition or misappropriation of the intellectual property of the business.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Assignment of Intellectual Property Rights.\n(a) Definition of “Inventions.” As used herein, the term “Inventions” shall mean all inventions, discoveries, improvements, original\nworks of authorship, trade secrets, formulas, techniques, data, programs, systems, specifications, documentation, algorithms, flow charts, logic\ndiagrams, source codes, object codes, processes, and other technical, business, product, marketing or financial information, plans, or other subject\nmatter pertaining to the Company, Employer or any of their respective parents, subsidiaries, affiliates, customers, consultants or licensees, whether or\nnot patented, tested, reduced to practice, or subject to patent, trademark, copyright, trade secret, mask work or other forms of protection (including\nall rights to obtain, register, perfect, renew,\nextend, continue, divide and enforce these proprietary interests), which are made, created, authored, conceived, modified, enhanced or reduced to\npractice by Employee, either alone or jointly with others, during Employee’s employment with Employer or the Company or any of their respective\nparents, subsidiaries or affiliates, and for so long as Employee is otherwise employed by any of them, whether or not during normal working hours,\nwhich (A) relate to the actual or anticipated business, activities, research, or investigations of Employer or the Company or any of their respective\nsubsidiaries or affiliates or (B) result from or are suggested by work performed by Employee for Employer or the Company or any of their respective\nparents, subsidiaries or affiliates (whether or not made or conceived during normal working hours or on the premises of Employer), or (C) which\nresult, to any extent, from use of the time, material, proprietary information, premises or property of Employer or the Company or any of their\nrespective parents, subsidiaries or affiliates.\n(b) Work for Hire. Subject to Section 1(d), Employee expressly acknowledges that all copyrightable aspects of the Inventions are to be\nconsidered “works made for hire” within the meaning of the Copyright Act of 1976, as amended (the “Act”), and that Employer is to be the “author”\nwithin the meaning of such Act for all purposes. All such copyrightable works, as well as all copies of such works in whatever medium fixed or\nembodied, shall be owned exclusively by Employer as of its creation, and Employee hereby expressly disclaims any and all interest in any of such\ncopyrightable works and waives any right of droit morale or similar rights.\n(c) Assignment. Subject to Section 1(d), Employee acknowledges and agrees that all Inventions shall be the sole property of Employer or\nany other entity designated by Employer. Employee hereby conveys and irrevocably assigns to Employer, without further consideration, all his right,\ntitle and interest in and to, and all claims for past infringement of, all Inventions, including, with respect to any of the foregoing, all rights of\ncopyright, patent, trademark, trade secret, mask works, and any and all other proprietary rights therein, the right to modify and create derivative\nworks, the right to invoke the benefit of any priority under any international convention, and all rights to register and renew same. This assignment is\nintended to and does extend to Inventions which have not yet been created.\n(d) Exceptions. Notwithstanding the foregoing, and provided that Employee does not wrongfully misappropriate any Confidential\nInformation or Trade Secrets, Employee understands that the provisions of this Agreement requiring disclosure and assignment of Inventions to\nEmployer do not apply to any invention which qualifies under the provisions of California Labor Code Section 2870 set forth in Schedule A or any\nsimilar law applicable to Employer or Employee. Employee agrees to identify all Inventions made by Employee that Employee believes meet the\ncriteria of California Labor Code Section 2870 to Employer in confidence to permit a determination as to whether or not the Inventions are the\nproperty of Employer, and Employee agrees to disclose all information Employer reasonably requests about Inventions, including those Employee\ncontends qualify under this exception to his duty to assign Inventions. “Trade Secrets” shall mean the whole or any portion or phase of any plan,\ntechnique, method, design, process, procedure, or improvement of Employer, the Company or any of their\n2\nrespective affiliates or subsidiaries that is valuable and not generally known to Competitors, whether or not in written or tangible form. Trade Secrets\nshall not include any materials or information that is or becomes publicly known through no fault of Employee or is disclosed by the Company to\nthird parties without an obligation of confidentiality.\n(e) Proprietary Notices; No Filings; Waiver of Moral Rights. Employee acknowledges that subject to Section 1(d), all Inventions shall, at\nthe sole option of Employer, bear Employer’s patent, copyright, trademark, trade secret, and mask work notices. Subject to Section 1(d), Employee\nagrees not to file any patent, copyright, or trademark applications relating to any Invention, except with the prior written consent of an authorized\nrepresentative of the Company. Subject to Section 1(d), Employee hereby expressly disclaims any and all interest in any Inventions and waives any\nright of droit morale or similar rights, such as rights of integrity or the right to be attributed as the creator of the Invention.\n(f) Further Assurances. Employee agrees to assist Employer, or any party designated by Employer, promptly on Employer’s reasonable\nrequest and at Employer’s expense, whether before or after the termination of employment, however such termination may occur, in perfecting,\nregistering, maintaining, and enforcing, in any jurisdiction, Employer’s rights in the Inventions by performing all acts and executing all documents\nand instruments deemed necessary or convenient by Employer, including, by way of illustration and not limitation:\n(i) Executing assignments, applications, and other documents and instruments in connection with (A) obtaining patents, copyrights,\ntrademarks, mask works, or other proprietary protections for the Inventions and (B) confirming the assignment to Employer of all right, title,\nand interest in the Inventions or otherwise establishing Employer’s exclusive ownership rights therein.\n(ii) Cooperating in the prosecution of patent, copyright, trademark and mask work applications, as well as in the enforcement of\nEmployer’s rights in the Inventions, including, but not limited to, testifying in court or before any patent, copyright, trademark or mask work\nregistry office or any other administrative body.\nEmployee shall be reimbursed for all out-of-pocket costs incurred in connection with the foregoing, if such assistance is requested by\nEmployer. In addition, to the extent that, after the termination of employment for whatever reason, Employee’s technical expertise shall be required\nin connection with the fulfillment of the aforementioned obligations, Employer shall compensate Employee at a reasonable rate for the time actually\nspent by Employee at Employer’s request rendering such assistance.\n(g) Power of Attorney. Subject to Section 1(d), Employee hereby irrevocably appoints Employer to be his attorney-in-fact to execute any\ndocument and to take any action in his name and on his behalf solely for the purpose of giving to\n3\nEmployer the full benefit of the assignment provisions set forth above to the extent that after reasonable effort by Employer, Employee does not\ncomply with his obligations set forth in this Section 1.\n(h) Disclosure of Inventions. Subject to Section 1(d), Employee shall make full and prompt disclosure to Employer of all Inventions\nsubject to assignment to Employer and all information relating thereto in Employee’s possession or under his control as to possible applications and\nuse thereof.\n2. Non-Disclosure of Confidential Information, Exclusive Services/Non-Competition and Non-Solicitation.\n(a) Confidentiality. Employee acknowledges that in his employment with Employer or the Company he will occupy a position of trust\nand confidence. Employee shall not, except as may be required in the normal course of business to perform his duties hereunder or as required by\napplicable law, without limitation in time or until such information shall have become public other than by Employee’s unauthorized disclosure,\ndisclose to others or use, whether directly or indirectly, any Confidential Information. “Confidential Information” shall mean confidential or\nproprietary information about Employer, or the Company, or their respective subsidiaries or affiliates, or their respective clients and customers, that\nis not disclosed by Employer for financial reporting purposes and that was learned by Employee in the course of his employment by Employer or the\nCompany, or their respective parents, subsidiaries or affiliates (or during any period in which Employee performed services for or on behalf of\nEmployer), including (without limitation) any proprietary knowledge, trade secrets, data, formulae, information and client and customer lists and all\npapers, resumes, and records (including computer records) of the documents containing such Confidential Information. Employee acknowledges that\nsuch Confidential Information is specialized, unique in nature and of great value to Employer, its subsidiaries or affiliates, and that such information\ngives Employer a competitive advantage. Employee agrees to (i) deliver or return to Employer, at Employer’s request at any time or upon\ntermination or expiration of his employment or as soon thereafter as possible, (A) all documents, computer tapes and disks, records, lists, data,\ndrawings, prints, notes and written information (and all copies thereof) furnished by Employer, its subsidiaries or affiliates, or prepared by Employee\nfor so long as Employee is employed by Employer, its subsidiaries or affiliates, and (B) subject to Section 1(d), all notebooks and other data relating\nto research or experiments or other work conducted by Employee in the scope of his employment or any Inventions made, created, authored,\nconceived, or reduced to practice by Employee, either alone or jointly with others, and (ii) subject to Section 1(d), make full disclosure relating to\nany Inventions. If Employee would like to keep certain property, such as material relating to professional societies or other non-confidential material,\nupon the termination of employment with Employer, he agrees to discuss such issues with Employer. Where such a request does not put Confidential\nInformation at risk, such request shall not be unreasonably denied.\n(b) Exclusive Services/Non-Competition. Employee acknowledges that the Employer and the Company do business throughout the\nworld, that he is\n4\ndisposing of his entire interest in Employer, and that he will have access to Confidential Information of Employer and the Company. In order to\nprotect Employer’s and the Company’s interest in its Confidential Information and goodwill, for the greater of: (1) the period that Employee is\nemployed by Employer, the Company, or their respective parents, subsidiaries or affiliates; or (2) two (2) years following the Effective Time (the\n“Restricted Period”), Employee shall not, anywhere in the world, directly or indirectly, without the prior written consent of Employer:\n(i) perform some or all of the duties assigned to Employee during his employment with Employer or any of its parents, subsidiaries\nor affiliates, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as\nan employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other\nbusiness, individual, partner, firm, corporation or other entity is then a Competitor (as defined herein) of Employer or the Company, or any of\ntheir respective parents, subsidiaries or affiliates. For purposes of this Agreement, a “Competitor” is any person or entity engaged in the\ndesign, development, manufacture and world wide sale of automated and manual in vitro diagnostic products for drug testing, cardiovascular\ndiseases, cerebrovascular diseases and thromboebolic diseases (the “Biosite Business”); or\n(ii) perform any services, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or\nother entity, whether as an employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent\nEmployee or such other business, individual, partner, firm, corporation or other entity is then a Competitor of Employer or the Company, or\nany of their respective subsidiaries or affiliates, with respect to the Biosite Business.\nEmployee and Employer acknowledge and agree that the business of Employer is global in nature, and that the terms set forth herein shall\napply on a worldwide basis.\nEmployee acknowledges that during the period of his employment with Employer, the Company and their respective parents, subsidiaries and\naffiliates, he will owe a duty of loyalty to his employer, and, consequently, understands and agrees that he will not perform any services, with or\nwithout pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as an employee, consultant,\nowner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other business, individual, partner, firm,\ncorporation or other entity is then a Competitor of Employer or the Company, or any of their respective parents, subsidiaries or affiliates, with\nrespect to any business then engaged in by the Employer, the Company or any of their respective parents, subsidiaries or affiliates.\nNotwithstanding the foregoing, the “beneficial ownership” by Employee, either individually or as a member of a “group,” as such terms are\nused in Regulation 13D of the General Rules and Regulations under the Securities Exchange Act of 1934, as\n5\namended (the “Exchange Act”), of not more than five percent (5%) of the voting stock of any publicly held corporation shall not constitute a\nviolation of this Agreement.\nIn addition, notwithstanding the foregoing, continued service by Employee during the Restricted Period as a member of the board of directors\nand/or as a scientific, clinical, technical or strategic advisor to any business, firm, corporation or other entity for which Employee is providing such\nservices as of the date of this Agreement shall not constitute a violation of this Section 2(b).\n(c) Non-Solicitation of Customers and Suppliers. During the Restricted Period, Employee shall not, directly or indirectly, use any\nConfidential Information to influence or attempt to influence customers or suppliers of Employer or the Company, or any of their respective\nsubsidiaries or affiliates, with whom he had contact during his employment with Employer, the Company or any of their respective affiliates, to\ndivert their business to any Competitor. During the Restricted Period, Employee shall not directly or indirectly, use influence or attempt to influence\ncustomers or suppliers of Employer or the Company, or any of their respective subsidiaries or affiliates, with whom he had contact during his\nemployment with Employer, the Company or any of their respective affiliates, to divert their business to any Competitor with respect to the Biosite\nBusiness.\n(d) Non-Solicitation of Employees. Employee recognizes that he possesses and will possess confidential information about other\nemployees of Employer and the Company, and their respective parents, subsidiaries and affiliates, relating to their education, experience, skills,\nabilities, compensation and benefits, and inter-personal relationships with customers of Employer, the Company, and any of their respective parents,\nsubsidiaries and affiliates. Employee recognizes that the information he possesses and will possess about these other employees is not generally\nknown, is of substantial value to Employer and the Company, and their respective subsidiaries or affiliates in developing their business and in\nsecuring and retaining customers, and has been and will be acquired by him because of his business position with Employer, its subsidiaries and\naffiliates. Employee agrees that, during the Restricted Period, he will not, directly or indirectly, use Confidential Information of Employer or the\nCompany, or any of their respective subsidiaries or affiliates to solicit, directly or indirectly, any person who is then an employee of Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates to terminate or limit their employment relationship with Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates, or to accept employment with any other person or entity. The foregoing shall\nnot be violated by general advertising not targeted at Employer employees or by Employee’s responding in any lawful manner to any person that\ninitiates contact with Employee during the Restricted Period.\n(e) Injunctive Relief. It is expressly agreed that Employer and/or the Company will or would suffer irreparable injury if Employee were\nto breach any of the provisions of this Section 2 and that Employer and/or the Company would by reason of any such breach be entitled to injunctive\nrelief in a court of appropriate jurisdiction without the need to post a bond or other security and without the need to demonstrate\n6\nspecial damages. The aforementioned injunctive relief is and shall be in addition to any other remedies that may be available to Employer or the\nCompany, or any of their respective subsidiaries or affiliates under this Agreement or otherwise.\n(f) Survival of Provisions. The obligations contained in this Section 2 shall survive the termination or expiration of Employee’s\nemployment with Employer, the Company or any of their respective parents, subsidiaries or affiliates, and shall be fully enforceable thereafter in the\ncase of the obligations contained in Section 2(a) and through the end of the Restricted Period in all other cases. If it is determined by a court of\ncompetent jurisdiction in any state that any restriction in this Section 2 is excessive in duration or scope or is unreasonable or unenforceable under\nthe laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the\nmaximum extent permitted by the law of that state.\n(g) No Additional Obligations of Employee Excused. All of the provisions of this Section 2 are in addition to any other written\nagreements on the subjects covered herein that Employee may have with Employer and/or any of its subsidiaries or affiliates, and are not meant to\nand do not excuse any additional obligations that Employee may have under such agreements.\n(h) Tolling for Periods of Breach. The Restricted Period shall be extended for a period equal to any period during which Employee is in\nmaterial breach of this Section 2 with respect to the portion of this Section 2 as to which Employee is in breach, provided that within a reasonable\nperiod of time after becoming aware of the breach, the Company and/or Employer notifies Employee that it believes Employee is in breach of this\nSection 2.\n(i) Third-Party Beneficiaries. Employer’s parents, subsidiaries and affiliates, and the Company, and its parents, subsidiaries and affiliates\nshall be third-party beneficiaries of this Section 2 of this Agreement, and shall be entitled to enforce its provisions against Employee.\n(j) Termination of Obligations. Notwithstanding anything to the contrary set forth herein, Employee’s obligations under Sections 2(b),\n2(c) and 2(d) shall immediately terminate and be of no further force or effect if the Employer or Company fails to make the payments or provide\nbenefits to Employee required under the Agreement or Employer’s Change in Control Severance Benefit Plan, and fails to cure within thirty\n(30) days following receipt of written notice from Employee of its failure to pay.\n3. Cooperation in Third-Party Disputes. Employee shall reasonably cooperate with Employer or the Company, or any of their respective\nsubsidiaries or affiliates and each of their respective attorneys or other legal representatives (collectively referred to as “Attorneys”) in connection\nwith any claim, litigation, or judicial or arbitral proceeding which is now pending or may hereinafter be brought against Employer or the Company,\nor any of their respective subsidiaries or affiliates by any third party related to the period of Employee’s employment with Employer. Employee’s\nduty of cooperation\n7\nshall include, but shall not be limited to, (a) meeting with Attorneys by telephone or in person at mutually convenient times and places in order to\nstate truthfully Employee’s knowledge of the matters at issue and recollection of events; (b) appearing at Attorneys’ request (and, to the extent\nreasonably possible, at a time convenient to Employee that does not conflict with the needs or requirements of Employee’s then current employer) as\na witness at depositions, trials or other proceedings, without the necessity of a subpoena, in order to state truthfully Employee’s knowledge of the\nmatters at issue; and (c) signing at Attorneys’ request declarations or affidavits that truthfully state the matters of which Employee has knowledge.\nEmployer shall promptly reimburse Employee for Employee’s actual and reasonable travel and other out-of-pocket expenses that Employee may\nincur in cooperating with Attorneys pursuant to this Section 3. In addition, to the extent that, after the termination of Employee’s employment for\nany reason, Employee provides cooperation pursuant to this Section 3, Employer shall, upon Employee request, compensate Employee at a\nreasonable rate for the time actually spent by Employee at Employer’s request rendering such cooperation. The provisions of this Section 3 are in\naddition to any other written agreements on this subject that Employee may have with Employer or the Company, or any of their respective\nsubsidiaries or affiliates and are not meant to and do not excuse any additional obligations that Employee may have under such agreements.\n4. Effect on Change in Control Severance Benefit Plan. Employee hereby agrees that the execution of this Agreement and the application of\nthe terms hereof shall not in any event constitute “Good Reason” as such term is defined in the Biosite Incorporated Change in Control Severance\nBenefit Plan effective October 22, 2004 (the “Biosite Severance Plan”) prior to the Effective Time. Employee hereby waives any claims to the\ncontrary. However, any such waiver is null and void after the Effective Time.\n5. Additional Consideration in Support of this Agreement. In consideration of Employee entering into this Agreement, Employee shall be\nentitled to the following benefits:\n(a) At the Effective Time, Employer shall cause the Employee to receive, with respect to each Employee Option, in consideration for the\ncancellation thereof, an amount in cash, without interest, equal to the product of (x) the total number of shares of Common Stock subject to the\nEmployee Option multiplied by (y) the excess, if any, of the Merger Consideration (as defined in the Merger Agreement) over the per share exercise\nprice of such Employee Option, less applicable taxes required to be withheld with respect to any such payment (the “Option Consideration”). In the\nevent that the exercise price of any Employee Option is equal to or greater than the Merger Consideration, such Employee Option shall be cancelled\nand have no further force or effect. The Option Consideration paid with respect to the Employee Options in accordance with the terms hereof shall\nbe deemed to have been paid in full satisfaction of all rights and privileges pertaining to the Employee Options and, on and after the Effective Time,\nEmployee shall have no further rights with respect to any Employee Option, other than the right to receive the Option Consideration as provided\nherein. Employee acknowledges that this Section 5(a) is in lieu of any benefits to which the\n8\nEmployee may be entitled under (i) Section 4(a)(1)(iii) of the Biosite Severance Plan and (ii) Section 5.9(a) of the Merger Agreement.\n(b) Employer shall pay Employee an amount equal to two times the Employee’s current rate of base salary ($240,006) (the “Current Base\nSalary”), which amount shall be payable in two equal installments. The first installment shall be paid at the Effective Time. The second installment\nshall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the termination of the Employee’s employment by\nthe Employer or the Company for any reason or no reason, or by the Employee for Good Cause (as defined herein) (the “Transition Period”). For\npurposes of this Agreement only, “Good Cause” means a requirement by the Employer or the Company that the Employee either relocate his\nprincipal place of work prior to the Effective Time or during the Transition Period, or work on more than on an eighty percent (80%) basis, or\nperform work that is other than work that is essential and related to assisting with the reasonable transition of control of Employer. Employee\nacknowledges that this Section 5(b) is in lieu of any benefits to which the Employee may be entitled under Section 4(a)(1)(i) of the Biosite\nSeverance Plan.\n(c) Employer shall pay the Employee an amount equal to two times the Employee’s Negotiated Bonus (as defined below) that is, a sum\nequal to the Employee’s Current Annual Base Salary, which amount shall be payable in two equal installments. The first installment shall be paid at\nthe Effective Time. The second installment shall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the\ntermination of the Employee’s employment by the Employer or the Company for any reason or no reason or by the Employee for Good Cause (as\ndefined in Section 5(b)). The Employee’s “Negotiated Bonus” is an amount equal to 50% of the Employee’s Current Base Salary.\n(d) Employee acknowledges that this Section 5 is in lieu of any benefits to which Employee may be entitled under (i) Section 4(a)(1)(i)\nof the Biosite Severance Plan, (ii) Section 4 (a)(1)(iii) of the Biosite Severance Plan, and (iii) Section 5.9(a) of the Merger Agreement. Section 4(a)\n(1)(ii) of the Biosite Severance Plan remains in full force and effect except that Employer agrees that the period set forth therein shall be extended\nfrom eighteen (18) to twenty-four (24) months.\n(e) The parties hereto acknowledge that after September 30, 2007, the Employee intends to relocate out of the area and will perform his\nresponsibilities under this Agreement remotely and that such relocation and remote work will not impact any benefits to which Employee is entitled\nunder this Agreement or the Biosite Severance Plan.\n6. Anything in this Agreement to the contrary notwithstanding, if at the time of Employee’s separation from service within the meaning of\nSection 409A of the Internal Revenue Code of 1986, as amended (the “Code”), the Employee is considered a “specified employee” within the\nmeaning of Section 409A(a)(2)(B)(i) of the Code, and if any payment or benefit that the Employee becomes entitled to under this Agreement or\nunder the Biosite Severance Plan is considered deferred compensation subject to interest,\n9\npenalties and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code,\nthen no such payment shall be payable or benefit shall be provided prior to the date that is the earliest of (i) six months and one day after the\nEmployee’s date of termination, (ii) the Employee’s death, or (iii) such other date as will cause such payment not to be subject to such interest,\npenalties and additional tax, and the initial payment or provision of benefit shall include a catch-up amount covering amounts that would otherwise\nhave been paid during the first six-month period but for the application of this Section 6. The parties intend that this Agreement will be administered\nin accordance with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and\nas may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and\nbenefits provided hereunder without additional cost to either party.\n7. Notices. All notices, demands, requests, consents, statements, satisfactions, waivers, designations, refusals, confirmations, denials and other\ncommunications that may be required or otherwise provided for or contemplated hereunder shall be in writing and shall be deemed to be properly\ngiven and received (a) upon delivery, if delivered in person or by e-mail or facsimile transmission with receipt acknowledged, (b) one business day\nafter having been deposited for overnight delivery with Federal Express or another comparable overnight courier service, or (c) three (3) business\ndays after having been deposited in any post office or mail depository regularly maintained by the U.S . Postal Service and sent by registered or\ncertified mail, postage prepaid, addressed to his residence address (or such other address as Employee may specify in a written notice to Employer)\nin the case of Employee, or to its principal office in the case of Employer.\n8. Benefits/Assignment. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective\nsuccessors and assigns, heirs and legal representatives. Employee may not assign any of his obligations under this agreement to any other person or\nentity without the prior written consent of Employer and the Company.\n9. Entire Agreement. This Agreement and the Merger Agreement contain the entire agreement of the parties, and supersedes all prior\nagreements, understandings and negotiations, whether written or oral, with respect to the subject matter hereof; provided, however, that the parties\nhereto acknowledge that this Agreement supersedes only certain provisions of the Biosite Severance Plan with respect to Employee and that, except\nas amended hereby, the Biosite Severance Plan remains in full force and effect in accordance with the terms thereof. However, for the avoidance of\ndoubt, none of the limitations related to the entitlement to benefits or the amount of benefits set out in Section 4 or Section 5 of the Biosite Severance\nPlan shall apply to amounts due under this Agreement. This Agreement may not be changed orally but only by an agreement in writing signed by the\nparty against whom enforcement of any waiver, change, modification, extension, or discharge is sought.\n10\n10. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be\nineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, but shall be enforced to the\nmaximum extent permitted by law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such\nprovision in any other jurisdiction.\n11. Arbitration. To the fullest extent allowed by law, any controversy, claim or dispute between Employee and Employer (and/or any of its\nowners, directors, officers, employees, affiliates, subsidiaries or agents) relating to or arising out of Employee’s employment or the cessation of that\nemployment will be submitted to JAMS for final and binding arbitration, to be held in Orange County, California, for determination in accordance\nwith the then current JAMS rules for the resolution of employment disputes, as the exclusive remedy for such controversy, claim or dispute. In any\nsuch arbitration, the parties may conduct discovery in accordance with the applicable rules of the arbitration forum, except that the arbitrator shall\nhave the authority to order and permit discovery as the arbitrator may deem necessary and appropriate in accordance with applicable state or federal\ndiscovery statutes. The arbitrator shall issue a reasoned, written decision, and shall have full authority to award all remedies which would be\navailable in court. The arbitrator will also have the power to direct that the party that substantially prevails in such arbitration proceeding be paid his\nor its reasonable attorneys’ fees by the other party or parties, to the extent the arbitrator deems appropriate. The parties shall share the filing fees\nrequired for the arbitration. Employer shall pay the arbitrator’s fees and any JAMS administrative expenses. The award of the arbitrator shall be final\nand binding upon the parties and may be entered as a judgment in any court of competent jurisdiction. Notwithstanding anything to the contrary\ncontained herein, Employer and Employee shall have their respective rights to seek and obtain injunctive relief through any court of competent\njurisdiction with respect to any controversy, claim or dispute to the extent permitted by law if such relief is not available, or not available in a timely\nmanner, through arbitration. Claims where mandatory arbitration is prohibited by law are not covered by this arbitration agreement, and such claims\nmay be presented by either Employee or Employer to the appropriate court or government agency. BY AGREEING TO THIS BINDING\nARBITRATION PROVISION, BOTH EMPLOYEE AND EMPLOYER GIVE UP ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO\nANY CLAIM SUBJECT TO ARBITRATION. This arbitration agreement is to be construed as broadly as is permissible under applicable law.\n12. Choice of Law. This Agreement shall be interpreted in accordance with the laws of the State of California without regard to the rules of\nconflict of laws.\n13. Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all\nof which together shall constitute one and the same instrument. Each counterpart may consist of a number of copies hereof each signed by less than\nall, but together signed by all of the parties hereto. Facsimile transmission of any signed original counterpart and/or retransmission of any signed\nfacsimile transmission shall be deemed the same as the delivery of an original.\n11\n14. Effectiveness of Agreement. Notwithstanding anything to the contrary set forth herein, this Agreement shall be contingent and effective\nupon the occurrence of the Effective Time, and if the Effective Time does not occur, including as a result of the termination of the Merger\nAgreement in accordance with its terms, this Agreement shall have no effect, and shall be null and void.\n[signature page follows]\n12\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.\nINVERNESS MEDICAL\nINNOVATIONS, INC.\nA Delaware corporation\nBy: /s/ Ron Zwanziger\nName: Ron Zwanziger\nTitle: CEO\nBIOSITE INCORPORATED\nA Delaware corporation\nBy: /s/ Chris Twomey\nName: Chris Twomey\nTitle: Sr. VP Finance, CFO\nGUNARS VALKIRS\n/s/ Gunars E. Valkirs\nSr. VP, Discovery\nSignature Page to Non-Competition, Non-Disclosure\nand Intellectual Property Assignment Agreement\n13\nSCHEDULE A\nCALIFORNIA LABOR CODE SECTION 2870\nINVENTION ON OWN TIME-EXEMPTION FROM AGREEMENT\n“(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably\nanticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being\nrequired to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”\n14	EX-10.3 5 dex103.htm NON-COMPETITION, NON-DISCLOSURE AND INTELLECTUAL AGREEMENT -\nGUNARS E. VALKIRS\nExhibit 10.3\nNON-COMPETITION, NON-DISCLOSURE\nAND\nINTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT\nThis Non-competition, Non-disclosure and Intellectual Property Assignment Agreement (the “Agreement”) entered into as of May 17, 2007, is\nhereby made by and between INVERNESS MEDICAL INNOVATIONS, INC., a Delaware corporation (the “Company”) and, BIOSITE\nINCORPORATED, a Delaware corporation (the “Employer”), on the one hand, and Gunars Valkirs, an individual, who is a resident of and employed\nin the State of California (“Employee”), on the other hand.\nA. The Company, Employer, and Inca Acquisition, Inc., a wholly-owned subsidiary of the Company, are entering into an Agreement and Plan\nof Merger dated as of May 17, 2007 (the “Merger Agreement”), which provides for the acquisition of Employer by the Company, upon which\nEmployer would become a wholly owned subsidiary of the Company;\nB. Employee, Company and Employer desire to enter into this Agreement in connection with the transactions contemplated by the Merger\nAgreement, contingent and effective upon the Effective Time (as defined in the Merger Agreement);\nC. Employee is the owner of 172,010 shares of Common Stock of Employer and has options to purchase 285,306 shares of Common Stock of\nEmployer (the “Employee Options™), and thereby stands to benefit by, and receive consideration from, the transactions contemplated by the Merger\nAgreement.\nD. Contingent and effective upon the Effective Time, Employee will become employed by Employer.\nE. Company and Employer desire to protect their interest in the business acquired, including the goodwill of that business, from unfair\ncompetition or misappropriation of the intellectual property of the business.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Assignment of Intellectual Property Rights.\n(a) Definition of “Inventions.” As used herein, the term “Inventions” shall mean all inventions, discoveries, improvements, original\nworks of authorship, trade secrets, formulas, techniques, data, programs, systems, specifications, documentation, algorithms, flow charts, logic\ndiagrams, source codes, object codes, processes, and other technical, business, product, marketing or financial information, plans, or other subject\nmatter pertaining to the Company, Employer or any of their respective parents, subsidiaries, affiliates, customers, consultants or licensees, whether or\nnot patented, tested, reduced to practice, or subject to patent, trademark, copyright, trade secret, mask work or other forms of protection (including\nall rights to obtain, register, perfect, renew,\nextend, continue, divide and enforce these proprietary interests), which are made, created, authored, conceived, modified, enhanced or reduced to\npractice by Employee, either alone or jointly with others, during Employee’s employment with Employer or the Company or any of their respective\nparents, subsidiaries or affiliates, and for so long as Employee is otherwise employed by any of them, whether or not during normal working hours,\nwhich (A) relate to the actual or anticipated business, activities, research, or investigations of Employer or the Company or any of their respective\nsubsidiaries or affiliates or (B) result from or are suggested by work performed by Employee for Employer or the Company or any of their respective\nparents, subsidiaries or affiliates (whether or not made or conceived during normal working hours or on the premises of Employer), or (C) which\nresult, to any extent, from use of the time, material, proprietary information, premises or property of Employer or the Company or any of their\nrespective parents, subsidiaries or affiliates.\n(b) Work for Hire. Subject to Section 1(d), Employee expressly acknowledges that all copyrightable aspects of the Inventions are to be\nconsidered “works made for hire” within the meaning of the Copyright Act of 1976, as amended (the “Act”), and that Employer is to be the “author”\nwithin the meaning of such Act for all purposes. All such copyrightable works, as well as all copies of such works in whatever medium fixed or\nembodied, shall be owned exclusively by Employer as of its creation, and Employee hereby expressly disclaims any and all interest in any of such\ncopyrightable works and waives any right of droit morale or similar rights.\n(c) Assignment. Subject to Section 1(d), Employee acknowledges and agrees that all Inventions shall be the sole property of Employer or\nany other entity designated by Employer. Employee hereby conveys and irrevocably assigns to Employer, without further consideration, all his right,\ntitle and interest in and to, and all claims for past infringement of, all Inventions, including, with respect to any of the foregoing, all rights of\ncopyright, patent, trademark, trade secret, mask works, and any and all other proprietary rights therein, the right to modify and create derivative\nworks, the right to invoke the benefit of any priority under any international convention, and all rights to register and renew same. This assignment is\nintended to and does extend to Inventions which have not yet been created.\n(d) Exceptions. Notwithstanding the foregoing, and provided that Employee does not wrongfully misappropriate any Confidential\nInformation or Trade Secrets, Employee understands that the provisions of this Agreement requiring disclosure and assignment of Inventions to\nEmployer do not apply to any invention which qualifies under the provisions of California Labor Code Section 2870 set forth in Schedule A or any\nsimilar law applicable to Employer or Employee. Employee agrees to identify all Inventions made by Employee that Employee believes meet the\ncriteria of California Labor Code Section 2870 to Employer in confidence to permit a determination as to whether or not the Inventions are the\nproperty of Employer, and Employee agrees to disclose all information Employer reasonably requests about Inventions, including those Employee\ncontends qualify under this exception to his duty to assign Inventions. “Trade Secrets” shall mean the whole or any portion or phase of any plan,\ntechnique, method, design, process, procedure, or improvement of Employer, the Company or any of their\n2\nrespective affiliates or subsidiaries that is valuable and not generally known to Competitors, whether or not in written or tangible form. Trade Secrets\nshall not include any materials or information that is or becomes publicly known through no fault of Employee or is disclosed by the Company to\nthird parties without an obligation of confidentiality.\n(e) Proprietary Notices; No Filings; Waiver of Moral Rights. Employee acknowledges that subject to Section 1(d), all Inventions shall, at\nthe sole option of Employer, bear Employer’s patent, copyright, trademark, trade secret, and mask work notices. Subject to Section 1(d), Employee\nagrees not to file any patent, copyright, or trademark applications relating to any Invention, except with the prior written consent of an authorized\nrepresentative of the Company. Subject to Section 1(d), Employee hereby expressly disclaims any and all interest in any Inventions and waives any\nright of droit morale or similar rights, such as rights of integrity or the right to be attributed as the creator of the Invention.\n(f) Further Assurances. Employee agrees to assist Employer, or any party designated by Employer, promptly on Employer’s reasonable\nrequest and at Employer’s expense, whether before or after the termination of employment, however such termination may occur, in perfecting,\nregistering, maintaining, and enforcing, in any jurisdiction, Employer’s rights in the Inventions by performing all acts and executing all documents\nand instruments deemed necessary or convenient by Employer, including, by way of illustration and not limitation:\n(i) Executing assignments, applications, and other documents and instruments in connection with (A) obtaining patents, copyrights,\ntrademarks, mask works, or other proprietary protections for the Inventions and (B) confirming the assignment to Employer of all right, title,\nand interest in the Inventions or otherwise establishing Employer’s exclusive ownership rights therein.\n(ii) Cooperating in the prosecution of patent, copyright, trademark and mask work applications, as well as in the enforcement of\nEmployer’s rights in the Inventions, including, but not limited to, testifying in court or before any patent, copyright, trademark or mask work\nregistry office or any other administrative body.\nEmployee shall be reimbursed for all out-of-pocket costs incurred in connection with the foregoing, if such assistance is requested by\nEmployer. In addition, to the extent that, after the termination of employment for whatever reason, Employee’s technical expertise shall be required\nin connection with the fulfillment of the aforementioned obligations, Employer shall compensate Employee at a reasonable rate for the time actually\nspent by Employee at Employer’s request rendering such assistance.\n(g) Power of Attorney. Subject to Section 1(d), Employee hereby irrevocably appoints Employer to be his attorney-in-fact to execute any\ndocument and to take any action in his name and on his behalf solely for the purpose of giving to\n3\nEmployer the full benefit of the assignment provisions set forth above to the extent that after reasonable effort by Employer, Employee does not\ncomply with his obligations set forth in this Section 1.\n(h) Disclosure of Inventions. Subject to Section 1(d), Employee shall make full and prompt disclosure to Employer of all Inventions\nsubject to assignment to Employer and all information relating thereto in Employee’s possession or under his control as to possible applications and\nuse thereof.\n2. Non-Disclosure of Confidential Information, Exclusive Services/Non-Competition and Non-Solicitation.\n(a) Confidentiality. Employee acknowledges that in his employment with Employer or the Company he will occupy a position of trust\nand confidence. Employee shall not, except as may be required in the normal course of business to perform his duties hereunder or as required by\napplicable law, without limitation in time or until such information shall have become public other than by Employee’s unauthorized disclosure,\ndisclose to others or use, whether directly or indirectly, any Confidential Information. “Confidential Information” shall mean confidential or\nproprietary information about Employer, or the Company, or their respective subsidiaries or affiliates, or their respective clients and customers, that\nis not disclosed by Employer for financial reporting purposes and that was learned by Employee in the course of his employment by Employer or the\nCompany, or their respective parents, subsidiaries or affiliates (or during any period in which Employee performed services for or on behalf of\nEmployer), including (without limitation) any proprietary knowledge, trade secrets, data, formulae, information and client and customer lists and all\npapers, resumes, and records (including computer records) of the documents containing such Confidential Information. Employee acknowledges that\nsuch Confidential Information is specialized, unique in nature and of great value to Employer, its subsidiaries or affiliates, and that such information\ngives Employer a competitive advantage. Employee agrees to (i) deliver or return to Employer, at Employer’s request at any time or upon\ntermination or expiration of his employment or as soon thereafter as possible, (A) all documents, computer tapes and disks, records, lists, data,\ndrawings, prints, notes and written information (and all copies thereof) furnished by Employer, its subsidiaries or affiliates, or prepared by Employee\nfor so long as Employee is employed by Employer, its subsidiaries or affiliates, and (B) subject to Section 1(d), all notebooks and other data relating\nto research or experiments or other work conducted by Employee in the scope of his employment or any Inventions made, created, authored,\nconceived, or reduced to practice by Employee, either alone or jointly with others, and (ii) subject to Section 1(d), make full disclosure relating to\nany Inventions. If Employee would like to keep certain property, such as material relating to professional societies or other non-confidential material,\nupon the termination of employment with Employer, he agrees to discuss such issues with Employer. Where such a request does not put Confidential\nInformation at risk, such request shall not be unreasonably denied.\n(b) Exclusive Services/Non-Competition. Employee acknowledges that the Employer and the Company do business throughout the\nworld, that he is\ndisposing of his entire interest in Employer, and that he will have access to Confidential Information of Employer and the Company. In order to\nprotect Employer’s and the Company’s interest in its Confidential Information and goodwill, for the greater of: (1) the period that Employee is\nemployed by Employer, the Company, or their respective parents, subsidiaries or affiliates; or (2) two (2) years following the Effective Time (the\n“Restricted Period”), Employee shall not, anywhere in the world, directly or indirectly, without the prior written consent of Employer:\n(i) perform some or all of the duties assigned to Employee during his employment with Employer or any of its parents, subsidiaries\nor affiliates, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as\nan employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other\nbusiness, individual, partner, firm, corporation or other entity is then a Competitor (as defined herein) of Employer or the Company, or any of\ntheir respective parents, subsidiaries or affiliates. For purposes of this Agreement, a “Competitor” is any person or entity engaged in the\ndesign, development, manufacture and world wide sale of automated and manual in vitro diagnostic products for drug testing, cardiovascular\ndiseases, cerebrovascular diseases and thromboebolic diseases (the “Biosite Business™); or\n(ii) perform any services, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or\nother entity, whether as an employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent\nEmployee or such other business, individual, partner, firm, corporation or other entity is then a Competitor of Employer or the Company, or\nany of their respective subsidiaries or affiliates, with respect to the Biosite Business.\nEmployee and Employer acknowledge and agree that the business of Employer is global in nature, and that the terms set forth herein shall\napply on a worldwide basis.\nEmployee acknowledges that during the period of his employment with Employer, the Company and their respective parents, subsidiaries and\naffiliates, he will owe a duty of loyalty to his employer, and, consequently, understands and agrees that he will not perform any services, with or\nwithout pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as an employee, consultant,\nowner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other business, individual, partner, firm,\ncorporation or other entity is then a Competitor of Employer or the Company, or any of their respective parents, subsidiaries or affiliates, with\nrespect to any business then engaged in by the Employer, the Company or any of their respective parents, subsidiaries or affiliates.\nNotwithstanding the foregoing, the “beneficial ownership” by Employee, either individually or as a member of a “group,” as such terms are\nused in Regulation 13D of the General Rules and Regulations under the Securities Exchange Act of 1934, as\n5\namended (the “Exchange Act”), of not more than five percent (5%) of the voting stock of any publicly held corporation shall not constitute a\nviolation of this Agreement.\nIn addition, notwithstanding the foregoing, continued service by Employee during the Restricted Period as a member of the board of directors\nand/or as a scientific, clinical, technical or strategic advisor to any business, firm, corporation or other entity for which Employee is providing such\nservices as of the date of this Agreement shall not constitute a violation of this Section 2(b).\n(c) Non-Solicitation of Customers and Suppliers. During the Restricted Period, Employee shall not, directly or indirectly, use any\nConfidential Information to influence or attempt to influence customers or suppliers of Employer or the Company, or any of their respective\nsubsidiaries or affiliates, with whom he had contact during his employment with Employer, the Company or any of their respective affiliates, to\ndivert their business to any Competitor. During the Restricted Period, Employee shall not directly or indirectly, use influence or attempt to influence\ncustomers or suppliers of Employer or the Company, or any of their respective subsidiaries or affiliates, with whom he had contact during his\nemployment with Employer, the Company or any of their respective affiliates, to divert their business to any Competitor with respect to the Biosite\nBusiness.\n(d) Non-Solicitation of Employees. Employee recognizes that he possesses and will possess confidential information about other\nemployees of Employer and the Company, and their respective parents, subsidiaries and affiliates, relating to their education, experience, skills,\nabilities, compensation and benefits, and inter-personal relationships with customers of Employer, the Company, and any of their respective parents,\nsubsidiaries and affiliates. Employee recognizes that the information he possesses and will possess about these other employees is not generally\nknown, is of substantial value to Employer and the Company, and their respective subsidiaries or affiliates in developing their business and in\nsecuring and retaining customers, and has been and will be acquired by him because of his business position with Employer, its subsidiaries and\naffiliates. Employee agrees that, during the Restricted Period, he will not, directly or indirectly, use Confidential Information of Employer or the\nCompany, or any of their respective subsidiaries or affiliates to solicit, directly or indirectly, any person who is then an employee of Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates to terminate or limit their employment relationship with Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates, or to accept employment with any other person or entity. The foregoing shall\nnot be violated by general advertising not targeted at Employer employees or by Employee’s responding in any lawful manner to any person that\ninitiates contact with Employee during the Restricted Period.\n(e) Injunctive Relief. It is expressly agreed that Employer and/or the Company will or would suffer irreparable injury if Employee were\nto breach any of the provisions of this Section 2 and that Employer and/or the Company would by reason of any such breach be entitled to injunctive\nrelief in a court of appropriate jurisdiction without the need to post a bond or other security and without the need to demonstrate\n6\nspecial damages. The aforementioned injunctive relief is and shall be in addition to any other remedies that may be available to Employer or the\nCompany, or any of their respective subsidiaries or affiliates under this Agreement or otherwise.\n(f) Survival of Provisions. The obligations contained in this Section 2 shall survive the termination or expiration of Employee’s\nemployment with Employer, the Company or any of their respective parents, subsidiaries or affiliates, and shall be fully enforceable thereafter in the\ncase of the obligations contained in Section 2(a) and through the end of the Restricted Period in all other cases. If it is determined by a court of\ncompetent jurisdiction in any state that any restriction in this Section 2 is excessive in duration or scope or is unreasonable or unenforceable under\nthe laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the\nmaximum extent permitted by the law of that state.\n(g) No Additional Obligations of Employee Excused. All of the provisions of this Section 2 are in addition to any other written\nagreements on the subjects covered herein that Employee may have with Employer and/or any of its subsidiaries or affiliates, and are not meant to\nand do not excuse any additional obligations that Employee may have under such agreements.\n(h) Tolling for Periods of Breach. The Restricted Period shall be extended for a period equal to any period during which Employee is in\nmaterial breach of this Section 2 with respect to the portion of this Section 2 as to which Employee is in breach, provided that within a reasonable\nperiod of time after becoming aware of the breach, the Company and/or Employer notifies Employee that it believes Employee is in breach of this\nSection 2.\n(i) Third-Party Beneficiaries. Employer’s parents, subsidiaries and affiliates, and the Company, and its parents, subsidiaries and affiliates\nshall be third-party beneficiaries of this Section 2 of this Agreement, and shall be entitled to enforce its provisions against Employee.\n(j) Termination of Obligations. Notwithstanding anything to the contrary set forth herein, Employee’s obligations under Sections 2(b),\n2(c) and 2(d) shall immediately terminate and be of no further force or effect if the Employer or Company fails to make the payments or provide\nbenefits to Employee required under the Agreement or Employer’s Change in Control Severance Benefit Plan, and fails to cure within thirty\n(30) days following receipt of written notice from Employee of its failure to pay.\n3. Cooperation in Third-Party Disputes. Employee shall reasonably cooperate with Employer or the Company, or any of their respective\nsubsidiaries or affiliates and each of their respective attorneys or other legal representatives (collectively referred to as “Attorneys™) in connection\nwith any claim, litigation, or judicial or arbitral proceeding which is now pending or may hereinafter be brought against Employer or the Company,\nor any of their respective subsidiaries or affiliates by any third party related to the period of Employee’s employment with Employer. Employee’s\nduty of cooperation\nshall include, but shall not be limited to, (a) meeting with Attorneys by telephone or in person at mutually convenient times and places in order to\nstate truthfully Employee’s knowledge of the matters at issue and recollection of events; (b) appearing at Attorneys’ request (and, to the extent\nreasonably possible, at a time convenient to Employee that does not conflict with the needs or requirements of Employee’s then current employer) as\na witness at depositions, trials or other proceedings, without the necessity of a subpoena, in order to state truthfully Employee’s knowledge of the\nmatters at issue; and (c) signing at Attorneys’ request declarations or affidavits that truthfully state the matters of which Employee has knowledge.\nEmployer shall promptly reimburse Employee for Employee’s actual and reasonable travel and other out-of-pocket expenses that Employee may\nincur in cooperating with Attorneys pursuant to this Section 3. In addition, to the extent that, after the termination of Employee’s employment for\nany reason, Employee provides cooperation pursuant to this Section 3, Employer shall, upon Employee request, compensate Employee at a\nreasonable rate for the time actually spent by Employee at Employer’s request rendering such cooperation. The provisions of this Section 3 are in\naddition to any other written agreements on this subject that Employee may have with Employer or the Company, or any of their respective\nsubsidiaries or affiliates and are not meant to and do not excuse any additional obligations that Employee may have under such agreements.\n4. Effect on Change in Control Severance Benefit Plan. Employee hereby agrees that the execution of this Agreement and the application of\nthe terms hereof shall not in any event constitute “Good Reason” as such term is defined in the Biosite Incorporated Change in Control Severance\nBenefit Plan effective October 22, 2004 (the “Biosite Severance Plan”) prior to the Effective Time. Employee hereby waives any claims to the\ncontrary. However, any such waiver is null and void after the Effective Time.\n5. Additional Consideration in Support of this Agreement. In consideration of Employee entering into this Agreement, Employee shall be\nentitled to the following benefits:\n(a) At the Effective Time, Employer shall cause the Employee to receive, with respect to each Employee Option, in consideration for the\ncancellation thereof, an amount in cash, without interest, equal to the product of (x) the total number of shares of Common Stock subject to the\nEmployee Option multiplied by (y) the excess, if any, of the Merger Consideration (as defined in the Merger Agreement) over the per share exercise\nprice of such Employee Option, less applicable taxes required to be withheld with respect to any such payment (the “Option Consideration”). In the\nevent that the exercise price of any Employee Option is equal to or greater than the Merger Consideration, such Employee Option shall be cancelled\nand have no further force or effect. The Option Consideration paid with respect to the Employee Options in accordance with the terms hereof shall\nbe deemed to have been paid in full satisfaction of all rights and privileges pertaining to the Employee Options and, on and after the Effective Time,\nEmployee shall have no further rights with respect to any Employee Option, other than the right to receive the Option Consideration as provided\nherein. Employee acknowledges that this Section 5(a) is in lieu of any benefits to which the\n8\nEmployee may be entitled under (i) Section 4(a)(1)(iii) of the Biosite Severance Plan and (ii) Section 5.9(a) of the Merger Agreement.\n(b) Employer shall pay Employee an amount equal to two times the Employee’s current rate of base salary ($240,006) (the “Current Base\nSalary”), which amount shall be payable in two equal installments. The first installment shall be paid at the Effective Time. The second installment\nshall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the termination of the Employee’s employment by\nthe Employer or the Company for any reason or no reason, or by the Employee for Good Cause (as defined herein) (the “Transition Period”). For\npurposes of this Agreement only, “Good Cause” means a requirement by the Employer or the Company that the Employee either relocate his\nprincipal place of work prior to the Effective Time or during the Transition Period, or work on more than on an eighty percent (80%) basis, or\nperform work that is other than work that is essential and related to assisting with the reasonable transition of control of Employer. Employee\nacknowledges that this Section 5(b) is in lieu of any benefits to which the Employee may be entitled under Section 4(a)(1)(i) of the Biosite\nSeverance Plan.\n(c) Employer shall pay the Employee an amount equal to two times the Employee’s Negotiated Bonus (as defined below) that is, a sum\nequal to the Employee’s Current Annual Base Salary, which amount shall be payable in two equal installments. The first installment shall be paid at\nthe Effective Time. The second installment shall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the\ntermination of the Employee’s employment by the Employer or the Company for any reason or no reason or by the Employee for Good Cause (as\ndefined in Section 5(b)). The Employee’s “Negotiated Bonus” is an amount equal to 50% of the Employee’s Current Base Salary.\n(d) Employee acknowledges that this Section 5 is in lieu of any benefits to which Employee may be entitled under (i) Section 4(a)(1)(i)\nof the Biosite Severance Plan, (ii) Section 4 (a)(1)(iii) of the Biosite Severance Plan, and (iii) Section 5.9(a) of the Merger Agreement. Section 4(a)\n(1)(i) of the Biosite Severance Plan remains in full force and effect except that Employer agrees that the period set forth therein shall be extended\nfrom eighteen (18) to twenty-four (24) months.\n(e) The parties hereto acknowledge that after September 30, 2007, the Employee intends to relocate out of the area and will perform his\nresponsibilities under this Agreement remotely and that such relocation and remote work will not impact any benefits to which Employee is entitled\nunder this Agreement or the Biosite Severance Plan.\n6. Anything in this Agreement to the contrary notwithstanding, if at the time of Employee’s separation from service within the meaning of\nSection 409A of the Internal Revenue Code of 1986, as amended (the “Code”), the Employee is considered a “specified employee” within the\nmeaning of Section 409A(a)(2)(B)(i) of the Code, and if any payment or benefit that the Employee becomes entitled to under this Agreement or\nunder the Biosite Severance Plan is considered deferred compensation subject to interest,\n9\npenalties and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code,\nthen no such payment shall be payable or benefit shall be provided prior to the date that is the earliest of (i) six months and one day after the\nEmployee’s date of termination, (ii) the Employee’s death, or (iii) such other date as will cause such payment not to be subject to such interest,\npenalties and additional tax, and the initial payment or provision of benefit shall include a catch-up amount covering amounts that would otherwise\nhave been paid during the first six-month period but for the application of this Section 6. The parties intend that this Agreement will be administered\nin accordance with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and\nas may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and\nbenefits provided hereunder without additional cost to either party.\n7. Notices. All notices, demands, requests, consents, statements, satisfactions, waivers, designations, refusals, confirmations, denials and other\ncommunications that may be required or otherwise provided for or contemplated hereunder shall be in writing and shall be deemed to be properly\ngiven and received (a) upon delivery, if delivered in person or by e-mail or facsimile transmission with receipt acknowledged, (b) one business day\nafter having been deposited for overnight delivery with Federal Express or another comparable overnight courier service, or (c) three (3) business\ndays after having been deposited in any post office or mail depository regularly maintained by the U.S. Postal Service and sent by registered or\ncertified mail, postage prepaid, addressed to his residence address (or such other address as Employee may specify in a written notice to Employer)\nin the case of Employee, or to its principal office in the case of Employer.\n8. Benefits/Assignment. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective\nsuccessors and assigns, heirs and legal representatives. Employee may not assign any of his obligations under this agreement to any other person or\nentity without the prior written consent of Employer and the Company.\n \n9. Entire Agreement. This Agreement and the Merger Agreement contain the entire agreement of the parties, and supersedes all prior\nagreements, understandings and negotiations, whether written or oral, with respect to the subject matter hereof; provided, however, that the parties\nhereto acknowledge that this Agreement supersedes only certain provisions of the Biosite Severance Plan with respect to Employee and that, except\nas amended hereby, the Biosite Severance Plan remains in full force and effect in accordance with the terms thereof. However, for the avoidance of\ndoubt, none of the limitations related to the entitlement to benefits or the amount of benefits set out in Section 4 or Section 5 of the Biosite Severance\nPlan shall apply to amounts due under this Agreement. This Agreement may not be changed orally but only by an agreement in writing signed by the\nparty against whom enforcement of any waiver, change, modification, extension, or discharge is sought.\n10\n10. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be\nineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, but shall be enforced to the\nmaximum extent permitted by law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such\nprovision in any other jurisdiction.\n11. Arbitration. To the fullest extent allowed by law, any controversy, claim or dispute between Employee and Employer (and/or any of its\nowners, directors, officers, employees, affiliates, subsidiaries or agents) relating to or arising out of Employee’s employment or the cessation of that\nemployment will be submitted to JAMS for final and binding arbitration, to be held in Orange County, California, for determination in accordance\nwith the then current JAMS rules for the resolution of employment disputes, as the exclusive remedy for such controversy, claim or dispute. In any\nsuch arbitration, the parties may conduct discovery in accordance with the applicable rules of the arbitration forum, except that the arbitrator shall\nhave the authority to order and permit discovery as the arbitrator may deem necessary and appropriate in accordance with applicable state or federal\ndiscovery statutes. The arbitrator shall issue a reasoned, written decision, and shall have full authority to award all remedies which would be\navailable in court. The arbitrator will also have the power to direct that the party that substantially prevails in such arbitration proceeding be paid his\nor its reasonable attorneys’ fees by the other party or parties, to the extent the arbitrator deems appropriate. The parties shall share the filing fees\nrequired for the arbitration. Employer shall pay the arbitrator’s fees and any JAMS administrative expenses. The award of the arbitrator shall be final\nand binding upon the parties and may be entered as a judgment in any court of competent jurisdiction. Notwithstanding anything to the contrary\ncontained herein, Employer and Employee shall have their respective rights to seek and obtain injunctive relief through any court of competent\njurisdiction with respect to any controversy, claim or dispute to the extent permitted by law if such relief is not available, or not available in a timely\nmanner, through arbitration. Claims where mandatory arbitration is prohibited by law are not covered by this arbitration agreement, and such claims\nmay be presented by either Employee or Employer to the appropriate court or government agency. BY AGREEING TO THIS BINDING\nARBITRATION PROVISION, BOTH EMPLOYEE AND EMPLOYER GIVE UP ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO\nANY CLAIM SUBJECT TO ARBITRATION. This arbitration agreement is to be construed as broadly as is permissible under applicable law.\n12. Choice of Law. This Agreement shall be interpreted in accordance with the laws of the State of California without regard to the rules of\nconflict of laws.\n13. Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all\nof which together shall constitute one and the same instrument. Each counterpart may consist of a number of copies hereof each signed by less than\nall, but together signed by all of the parties hereto. Facsimile transmission of any signed original counterpart and/or retransmission of any signed\nfacsimile transmission shall be deemed the same as the delivery of an original.\n11\n14. Effectiveness of Agreement. Notwithstanding anything to the contrary set forth herein, this Agreement shall be contingent and effective\nupon the occurrence of the Effective Time, and if the Effective Time does not occur, including as a result of the termination of the Merger\nAgreement in accordance with its terms, this Agreement shall have no effect, and shall be null and void.\n[signature page follows]\n12\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.\nINVERNESS MEDICAL\nINNOVATIONS, INC.\nA Delaware corporation\nBy: /s/ Ron Zwanziger\nName: Ron Zwanziger\nTitle: CEO\nBIOSITE INCORPORATED\nA Delaware corporation\nBy: /s/ Chris Twomey\nName: Chris Twomey\nTitle: Sr. VP Finance, CFO\nGUNARS VALKIRS\n/s/ Gunars E. Valkirs\nSr. VP, Discovery\nSignature Page to Non-Competition, Non-Disclosure\nand Intellectual Property Assignment Agreement\n13\nSCHEDULE A\nCALIFORNIA LABOR CODE SECTION 2870\nINVENTION ON OWN TIME-EXEMPTION FROM AGREEMENT\n“(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an (b)\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably\nanticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\nTo the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being\nrequired to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”\n14	EX-10.3 5 dex103.htm NON-COMPETITION, NON-DISCLOSURE AND INTELLECTUAL AGREEMENT -\nGUNARS E. VALKIRS\nExhibit 10.3\nNON-COMPETITION, NON-DISCLOSURE\nAND\nINTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT\nThis Non-competition, Non-disclosure and Intellectual Property Assignment Agreement (the "Agreement") entered into as of May 17, 2007, is\nhereby made by and between INVERNESS MEDICAL INNOVATIONS, INC., a Delaware corporation (the "Company") and, BIOSITE\nINCORPORATED, a Delaware corporation (the "Employer"), on the one hand, and Gunars Valkirs, an individual, who is a resident of and employed\nin the State of California ("Employee"), on the other hand.\nA. The Company, Employer, and Inca Acquisition, Inc., a wholly-owned subsidiary of the Company, are entering into an Agreement and Plan\nof Merger dated as of May 17, 2007 (the "Merger Agreement"), which provides for the acquisition of Employer by the Company, upon which\nEmployer would become a wholly owned subsidiary of the Company;\nB. Employee, Company and Employer desire to enter into this Agreement in connection with the transactions contemplated by the Merger\nAgreement, contingent and effective upon the Effective Time (as defined in the Merger Agreement);\nC. Employee is the owner of 172,010 shares of Common Stock of Employer and has options to purchase 285,306 shares of Common Stock of\nEmployer (the "Employee Options"), and thereby stands to benefit by, and receive consideration from, the transactions contemplated by the Merger\nAgreement.\nD. Contingent and effective upon the Effective Time, Employee will become employed by Employer.\nE. Company and Employer desire to protect their interest in the business acquired, including the goodwill of that business, from unfair\ncompetition or misappropriation of the intellectual property of the business.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Assignment of Intellectual Property. Rights.\n(a) Definition of "Inventions." As used herein, the term "Inventions" shall mean all inventions, discoveries, improvements, original\nworks of authorship, trade secrets, formulas, techniques, data, programs, systems, specifications, documentation, algorithms, flow charts, logic\ndiagrams, source codes, object codes, processes, and other technical, business, product, marketing or financial information, plans, or other subject\nmatter pertaining to the Company, Employer or any of their respective parents, subsidiaries, affiliates, customers, consultants or licensees, whether or\nnot patented, tested, reduced to practice, or subject to patent, trademark, copyright, trade secret, mask work or other forms of protection (including\nall rights to obtain, register, perfect, renew,\nextend, continue, divide and enforce these proprietary interests), which are made, created, authored, conceived, modified, enhanced or reduced to\npractice by Employee, either alone or jointly with others, during Employee's employment with Employer or the Company or any of their respective\nparents, subsidiaries or affiliates, and for so long as Employee is otherwise employed by any of them, whether or not during normal working hours,\nwhich (A) relate to the actual or anticipated business, activities, research, or investigations of Employer or the Company or any of their respective\nsubsidiaries or affiliates or (B) result from or are suggested by work performed by Employee for Employer or the Company or any of their respective\nparents, subsidiaries or affiliates (whether or not made or conceived during normal working hours or on the premises of Employer), or (C) which\nresult, to any extent, from use of the time, material, proprietary information, premises or property of Employer or the Company or any of their\nrespective parents, subsidiaries or affiliates.\n(b) Work for Hire. Subject to Section 1(d), Employee expressly acknowledges that all copyrightable aspects of the Inventions are to be\nconsidered "works made for hire" within the meaning of the Copyright Act of 1976, as amended (the "Act"), and that Employer is to be the "author"\nwithin the meaning of such Act for all purposes. All such copyrightable works, as well as all copies of such works in whatever medium fixed or\nembodied, shall be owned exclusively by Employer as of its creation, and Employee hereby expressly disclaims any and all interest in any of such\ncopyrightable works and waives any right of droit morale or similar rights.\n(c) Assignment. Subject to Section 1(d), Employee acknowledges and agrees that all Inventions shall be the sole property of Employer or\nany other entity designated by Employer. Employee hereby conveys and irrevocably assigns to Employer, without further consideration, all his right,\ntitle and interest in and to, and all claims for past infringement of, all Inventions, including, with respect to any of the foregoing, all rights of\ncopyright, patent, trademark, trade secret, mask works, and any and all other proprietary rights therein, the right to modify and create derivative\nworks, the right to invoke the benefit of any priority under any international convention, and all rights to register and renew same. This assignment\nis\nintended to and does extend to Inventions which have not yet been created.\n(d) Exceptions. Notwithstanding the foregoing, and provided that Employee does not wrongfully misappropriate any Confidential\nInformation or Trade Secrets, Employee understands that the provisions of this Agreement requiring disclosure and assignment of Inventions to\nEmployer do not apply to any invention which qualifies under the provisions of California Labor Code Section 2870 set forth in Schedule A or any\nsimilar law applicable to Employer or Employee. Employee agrees to identify all Inventions made by Employee that Employee believes meet the\ncriteria of California Labor Code Section 2870 to Employer in confidence to permit a determination as to whether or not the Inventions are the\nproperty of Employer, and Employee agrees to disclose all information Employer reasonably requests about Inventions, including those Employee\ncontends qualify under this exception to his duty to assign Inventions. "Trade Secrets" shall mean the whole or any portion or phase of any plan,\ntechnique, method, design, process, procedure, or improvement of Employer, the Company or any of their\n2\nrespective affiliates or subsidiaries that is valuable and not generally known to Competitors, whether or not in written or tangible form. Trade Secrets\nshall not include any materials or information that is or becomes publicly known through no fault of Employee or is disclosed by the Company\nto\nthird parties without an obligation of confidentiality.\n(e) Proprietary Notices; No Filings; Waiver of Moral Rights. Employee acknowledges that subject to Section 1(d), all Inventions shall, at\nthe\nsole option of Employer, bear Employer's patent, copyright, trademark, trade secret, and mask work notices. Subject to Section 1(d), Employee\nagrees not to file any patent, copyright, or trademark applications relating to any Invention, except with the prior written consent of an authorized\nrepresentative of the Company. Subject to Section 1(d), Employee hereby expressly disclaims any and all interest in any Inventions and waives any\nright of droit morale or similar rights, such as rights of integrity or the right to be attributed as the creator of the Invention.\n(f)\nFurther Assurances. Employee agrees to assist Employer, or any party designated by Employer, promptly on Employer's reasonable\nrequest and at Employer's expense, whether before or after the termination of employment, however such termination may occur, in perfecting,\nregistering, maintaining, and enforcing, in any jurisdiction, Employer's rights in the Inventions by performing all acts and executing all documents\nand instruments deemed necessary or convenient by Employer, including, by way of illustration and not limitation:\n(i) Executing assignments, applications, and other documents and instruments in connection with (A) obtaining patents, copyrights,\ntrademarks, mask works, or other proprietary protections for the Inventions and (B) confirming the assignment to Employer of all right, title,\nand interest in the Inventions or otherwise establishing Employer's exclusive ownership rights therein.\n(ii) Cooperating in the prosecution of patent, copyright, trademark and mask work applications, as well as in the enforcement of\nEmployer's rights in the Inventions, including, but not limited to, testifying in court or before any patent, copyright, trademark or mask work\nregistry office or any other administrative body.\nEmployee shall be reimbursed for all out-of-pocket costs incurred in connection with the foregoing, if such assistance is requested by\nEmployer. In addition, to the extent that, after the termination of employment for whatever reason, Employee's technical expertise shall be required\nin connection with the fulfillment of the aforementioned obligations, Employer shall compensate Employee at a reasonable rate for the time actually\nspent by Employee at Employer's request rendering such assistance.\n(g) Power of Attorney.. Subject to Section 1(d), Employee hereby irrevocably appoints Employer to be his attorney-in-fact to execute any\ndocument and to take any action in his name and on his behalf solely for the purpose of giving to\n3\nEmployer the full benefit of the assignment provisions set forth above to the extent that after reasonable effort by Employer, Employee does not\ncomply with his obligations set forth in this Section 1.\n(h) Disclosure of Inventions. Subject to Section 1(d), Employee shall make full and prompt disclosure to Employer of all Inventions\nsubject to assignment to Employer and all information relating thereto in Employee's possession or under his control as to possible applications and\nuse thereof.\n2. Non-Disclosure of Confidential Information, Exclusive Services/Non-Competition and Non-Solicitation.\n(a) Confidentiality.. Employee acknowledges that in his employment with Employer or the Company he will occupy a position of\ntrust\nand confidence. Employee shall not, except as may be required in the normal course of business to perform his duties hereunder or as required by\napplicable law, without limitation in time or until such information shall have become public other than by Employee's unauthorized disclosure,\ndisclose to others or use, whether directly or indirectly, any Confidential Information. "Confidential Information" shall mean confidential or\nproprietary information about Employer, or the Company, or their respective subsidiaries or affiliates, or their respective clients and customers, that\nis not disclosed by Employer for financial reporting purposes and that was learned by Employee in the course of his employment by Employer or the\nCompany, or their respective parents, subsidiaries or affiliates (or during any period in which Employee performed services for or on behalf of\nEmployer), including (without limitation) any proprietary knowledge, trade secrets, data, formulae, information and client and customer lists and\nall\npapers, resumes, and records (including computer records) of the documents containing such Confidential Information. Employee acknowledges that\nsuch Confidential Information is specialized, unique in nature and of great value to Employer, its subsidiaries or affiliates, and that such information\ngives Employer a competitive advantage. Employee agrees to (i) deliver or return to Employer, at Employer's request at any time or upon\ntermination or expiration of his employment or as soon thereafter as possible, (A) all documents, computer tapes and disks, records, lists, data,\ndrawings, prints, notes and written information (and all copies thereof) furnished by Employer, its subsidiaries or affiliates, or prepared by Employee\nfor so long as Employee is employed by Employer, its subsidiaries or affiliates, and (B) subject to Section 1(d), all notebooks and other data relating\nto research or experiments or other work conducted by Employee in the scope of his employment or any Inventions made, created, authored,\nconceived, or reduced to practice by Employee, either alone or jointly with others, and (ii) subject to Section 1(d), make full disclosure relating\nto\nany Inventions. If Employee would like to keep certain property, such as material relating to professional societies or other non-confidential material,\nupon the termination of employment with Employer, he agrees to discuss such issues with Employer. Where such a request does not put Confidential\nInformation at risk, such request shall not be unreasonably denied.\n(b) Exclusive Services/Non-Competition. Employee acknowledges that the Employer and the Company do business throughout the\nworld, that he is\n4\ndisposing of his entire interest in Employer, and that he will have access to Confidential Information of Employer and the Company. In order to\nprotect Employer's and the Company's interest in its Confidential Information and goodwill, for the greater of: (1) the period that Employee is\nemployed by Employer, the Company, or their respective parents, subsidiaries or affiliates; or (2) two (2) years following the Effective Time (the\n"Restricted Period"), Employee shall not, anywhere in the world, directly or indirectly, without the prior written consent of Employer:\n(i) perform some or all of the duties assigned to Employee during his employment with Employer or any of its parents, subsidiaries\nor affiliates, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as\nan employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other\nbusiness, individual, partner, firm, corporation or other entity is then a Competitor (as defined herein) of Employer or the Company, or any of\ntheir respective parents, subsidiaries or affiliates. For purposes of this Agreement, a "Competitor" is any person or entity engaged in the\ndesign, development, manufacture and world wide sale of automated and manual in vitro diagnostic products for drug testing, cardiovascular\ndiseases, cerebrovascular diseases and thromboebolic diseases (the "Biosite Business"); or\n(ii) perform any services, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or\nother entity, whether as an employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent\nEmployee or such other business, individual, partner, firm, corporation or other entity is then a Competitor of Employer or the Company,\nor\nany of their respective subsidiaries or affiliates, with respect to the Biosite Business.\nEmployee and Employer acknowledge and agree that the business of Employer is global in nature, and that the terms set forth herein shall\napply on a worldwide basis.\nEmployee acknowledges that during the period of his employment with Employer, the Company and their respective parents, subsidiaries and\naffiliates, he will owe a duty of loyalty to his employer, and, consequently, understands and agrees that he will not perform any services, with or\nwithout pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as an employee, consultant,\nowner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other business, individual, partner, firm,\ncorporation or other entity is then a Competitor of Employer or the Company, or any of their respective parents, subsidiaries or affiliates, with\nrespect to any business then engaged in by the Employer, the Company or any of their respective parents, subsidiaries or affiliates.\nNotwithstanding the foregoing, the "beneficial ownership" by Employee, either individually or as a member of a "group," as such terms are\nused in Regulation 13D of the General Rules and Regulations under the Securities Exchange Act of 1934, as\n5\namended (the "Exchange Act"), of not more than five percent (5%) of the voting stock of any publicly held corporation shall not constitute a\nviolation of this Agreement.\nIn addition, notwithstanding the foregoing, continued service by Employee during the Restricted Period as a member of the board of directors\nand/or as a scientific, clinical, technical or strategic advisor to any business, firm, corporation or other entity for which Employee is providing such\nservices as of the date of this Agreement shall not constitute a violation of this Section 2(b).\n(c) Non-Solicitation of Customers and Suppliers. During the Restricted Period, Employee shall not, directly or indirectly, use any\nConfidential Information to influence or attempt to influence customers or suppliers of Employer or the Company, or any of their respective\nsubsidiaries or affiliates, with whom he had contact during his employment with Employer, the Company or any of their respective affiliates, to\ndivert their business to any Competitor. During the Restricted Period, Employee shall not directly or indirectly, use influence or attempt to influence\ncustomers or suppliers of Employer or the Company, or any of their respective subsidiaries or affiliates, with whom he had contact during his\nemployment with Employer, the Company or any of their respective affiliates, to divert their business to any Competitor with respect to the Biosite\nBusiness.\n(d) Non-Solicitation of Employees. Employee recognizes that he possesses and will possess confidential information about other\nemployees of Employer and the Company, and their respective parents, subsidiaries and affiliates, relating to their education, experience, skills,\nabilities,\ncompensation and benefits, and inter-personal relationships with customers of Employer, the Company, and any of their respective parents,\nsubsidiaries and affiliates. Employee recognizes that the information he possesses and will possess about these other employees is not generally\nknown, is of substantial value to Employer and the Company, and their respective subsidiaries or affiliates in developing their business and\nin\nsecuring and retaining customers, and has been and will be acquired by him because of his business position with Employer, its subsidiaries and\naffiliates. Employee agrees that, during the Restricted Period, he will not, directly or indirectly, use Confidential Information of Employer or the\nCompany, or any of their respective subsidiaries or affiliates to solicit, directly or indirectly, any person who is then an employee of Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates to terminate or limit their employment relationship with Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates, or to accept employment with any other person or entity. The foregoing shall\nnot be violated by general advertising not targeted at Employer employees or by Employee's responding in any lawful manner to any person that\ninitiates contact with Employee during the Restricted Period.\n(e) Injunctive Relief. It is expressly agreed that Employer and/or the Company will or would suffer irreparable injury if Employee were\nto breach any of the provisions of this Section 2 and that Employer and/or the Company would by reason of any such breach be entitled to injunctive\nrelief in a court of appropriate jurisdiction without the need to post a bond or other security and without the need to demonstrate\n6\nspecial damages. The aforementioned injunctive relief is and shall be in addition to any other remedies that may be available to Employer or the\nCompany, or any of their respective subsidiaries or affiliates under this Agreement or otherwise.\n(f) Survival of Provisions. The obligations contained in this Section 2 shall survive the termination or expiration of Employee's\nemployment with Employer, the Company or any of their respective parents, subsidiaries or affiliates, and shall be fully enforceable thereafter in the\ncase\nof\nthe obligations contained in Section 2(a) and through the end of the Restricted Period in all other cases. If it is determined by a court of\ncompetent jurisdiction in any state that any restriction in this Section 2 is excessive in duration or scope or is unreasonable or unenforceable under\nthe laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the\nmaximum extent permitted by the law of that state.\n(g) No Additional Obligations of Employee Excused. All of the provisions of this Section 2 are in addition to any other written\nagreements on the subjects covered herein that Employee may have with Employer and/or any of its subsidiaries or affiliates, and are not meant to\nand do not excuse any additional obligations that Employee may have under such agreements.\n(h) Tolling for Periods of Breach. The Restricted Period shall be extended for a period equal to any period during which Employee is in\nmaterial breach of this Section 2 with respect to the portion of this Section 2 as to which Employee is in breach, provided that within a reasonable\nperiod of time after becoming aware of the breach, the Company and/or Employer notifies Employee that it believes Employee is in breach of this\nSection 2.\n(i) Third-Party. Beneficiaries. Employer's parents, subsidiaries and affiliates, and the Company, and its parents, subsidiaries and affiliates\nshall be third-party beneficiaries of this Section 2 of this Agreement, and shall be entitled to enforce its provisions against Employee.\n(j) Termination of Obligations. Notwithstanding anything to the contrary set forth herein, Employee's obligations under Sections 2(b),\n2(c) and 2(d) shall immediately terminate and be of no further force or effect if the Employer or Company fails to make the payments or provide\nbenefits to Employee required under the Agreement or Employer's Change in Control Severance Benefit Plan, and fails to cure within thirty\n(30) days following receipt of written notice from Employee of its failure to pay.\n3. Cooperation in Third-Party. Disputes. Employee shall reasonably cooperate with Employer or the Company, or any of their respective\nsubsidiaries or affiliates and each of their respective attorneys or other legal representatives (collectively referred to as "Attorneys") in connection\nwith any claim, litigation, or judicial or arbitral proceeding which is now pending or may hereinafter be brought against Employer or the Company,\nor any of their respective subsidiaries or affiliates by any third party related to the period of Employee's employment with Employer. Employee's\nduty of cooperation\n7\nshall include, but shall not be limited to, (a) meeting with Attorneys by telephone or in person at mutually convenient times and places in order to\nstate truthfully Employee's knowledge of the matters at issue and recollection of events; (b) appearing at Attorneys' request (and, to the extent\nreasonably possible, at a time convenient to Employee that does not conflict with the needs or requirements of Employee's then current employer)\nas\na witness at depositions, trials or other proceedings, without the necessity of a subpoena, in order to state truthfully Employee's knowledge of the\nmatters at issue; and (c) signing at Attorneys' request declarations or affidavits that truthfully state the matters of which Employee has knowledge.\nEmployer shall promptly reimburse Employee for Employee's actual and reasonable travel and other out-of-pocket expenses that Employee may\nincur in cooperating with Attorneys pursuant to this Section 3. In addition, to the extent that, after the termination of Employee's employment\nfor\nany reason, Employee provides cooperation pursuant to this Section 3, Employer shall, upon Employee request, compensate Employee at\na\nreasonable rate for the time actually spent by Employee at Employer's request rendering such cooperation. The provisions of this Section 3\nare\nin\naddition\nto any other written agreements on this subject that Employee may have with Employer or the Company, or any of their respective\nsubsidiaries or affiliates and are not meant to and do not excuse any additional obligations that Employee may have under such agreements.\n4. Effect on Change in Control Severance Benefit Plan. Employee hereby agrees that the execution of this Agreement and the application of\nthe terms hereof shall not in any event constitute "Good Reason" as such term is defined in the Biosite Incorporated Change in Control Severance\nBenefit Plan effective October 22, 2004 (the "Biosite Severance Plan") prior to the Effective Time. Employee hereby waives any claims to\nthe\ncontrary. However, any such waiver is null and void after the Effective Time.\n5. Additional Consideration in Support of this Agreement. In consideration of Employee entering into this Agreement, Employee shall be\nentitled to the following benefits:\n(a) At the Effective Time, Employer shall cause the Employee to receive, with respect to each Employee Option, in\nconsideration\nfor\nthe\ncancellation thereof, an amount in cash, without interest, equal to the product of (x) the total number of shares of Common Stock subject to the\nEmployee Option multiplied by (y) the excess, if any, of the Merger Consideration (as defined in the Merger Agreement) over the per share exercise\nprice of such Employee Option, less applicable taxes required to be withheld with respect to any such payment (the "Option Consideration"). In the\nevent that the exercise price of any Employee Option is equal to or greater than the Merger Consideration, such Employee Option shall be cancelled\nand have no further force or effect. The Option Consideration paid with respect to the Employee Options in accordance with the terms hereof shall\nbe deemed to have been paid in full satisfaction of all rights and privileges pertaining to the Employee Options and, on and after the Effective Time,\nEmployee shall have no further rights with respect to any Employee Option, other than the right to receive the Option Consideration as provided\nherein. Employee acknowledges that this Section 5(a) is in lieu of any benefits to which the\n8\nEmployee may be entitled under (i) Section 4(a)(1)(iii) of the Biosite Severance Plan and (ii) Section 5.9(a) of the Merger Agreement.\n(b) Employer shall pay Employee an amount equal to two times the Employee's current rate of base salary ($240,006) (the "Current Base\nSalary"), which amount shall be payable in two equal installments. The first installment shall be paid at the Effective Time. The second installment\nshall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the termination of the Employee's employment by\nthe\nEmployer or the Company for any reason or no reason, or by the Employee for Good Cause (as defined herein) (the "Transition\nPeriod").\nFor\npurposes of this Agreement only, "Good Cause" means a requirement by the Employer or the Company that the Employee either relocate his\nprincipal place of work prior to the Effective Time or during the Transition Period, or work on more than on an eighty percent (80%) basis, or\nperform work that is other than work that is essential and related to assisting with the reasonable transition of control of Employer. Employee\nacknowledges that this Section 5(b) is in lieu of any benefits to which the Employee may be entitled under Section 4(a)(1)(i) of the Biosite\nSeverance Plan.\n(c) Employer shall pay the Employee an amount equal to two times the Employee's Negotiated Bonus (as defined below) that is, a sum\nequal to the Employee's Current Annual Base Salary, which amount shall be payable in two equal installments. The first installment shall be paid at\nthe Effective Time. The second installment shall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the\ntermination of the Employee's employment by the Employer or the Company for any reason or no reason or by the Employee for Good Cause (as\ndefined in Section 5(b)). The Employee's "Negotiated Bonus" is an amount equal to 50% of the Employee's Current Base Salary.\n(d) Employee acknowledges that this Section 5 is in lieu of any benefits to which Employee may be entitled under (i) Section 4(a)(1)(i)\nof\nthe Biosite Severance Plan, (ii) Section 4 (a)(1)(iii) of the Biosite Severance Plan, and (iii) Section 5.9(a) of the Merger Agreement. Section 4(a)\n(1)(ii) of the Biosite Severance Plan remains in full force and effect except that Employer agrees that the period set forth therein shall be extended\nfrom eighteen (18) to twenty-four (24) months.\n(e) The parties hereto acknowledge that after September 30, 2007, the Employee intends to relocate out of the area and will perform his\nresponsibilities under this Agreement remotely and that such relocation and remote work will not impact any benefits to which Employee is entitled\nunder this Agreement or the Biosite Severance Plan.\n6. Anything in this Agreement to the contrary notwithstanding, if at the time of Employee's separation from service within the meaning of\nSection 409A of the Internal Revenue Code of 1986, as amended (the "Code"), the Employee is considered a "specified employee" within the\nmeaning of Section 409A(a)(2)(B)(i) of the Code, and if any payment or benefit that the Employee becomes entitled to under this Agreement or\nunder the Biosite Severance Plan is considered deferred compensation subject to interest,\n9\npenalties and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code,\nthen no such payment shall be payable or benefit shall be provided prior to the date that is the earliest of (i) six months and one day after the\nEmployee's date of termination, (ii) the Employee's death, or (iii) such other date as will cause such payment not to be subject to such interest,\npenalties and additional tax, and the initial payment or provision of benefit shall include a catch-up amount covering amounts that would otherwise\nhave been paid during the first six-month period but for the application of this Section 6. The parties intend that this Agreement will be administered\nin\naccordance with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and\nas may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and\nbenefits provided hereunder without additional cost to either party.\n7.\nNotices. All notices, demands, requests, consents, statements, satisfactions, waivers, designations, refusals, confirmations, denials and other\ncommunications that may be required or otherwise provided for or contemplated hereunder shall be in writing and shall be deemed to be properly\ngiven and received (a) upon delivery, if delivered in person or by e-mail or facsimile transmission with receipt acknowledged, (b) one business day\nafter having been deposited for overnight delivery with Federal Express or another comparable overnight courier service, or (c) three (3) business\ndays after having been deposited in any post office or mail depository regularly maintained by the U.S. Postal Service and sent by registered or\ncertified mail, postage prepaid, addressed to his residence address (or such other address as Employee may specify in a written notice to Employer)\nin the case of Employee, or to its principal office in the case of Employer.\n8. Benefits/Assignment. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective\nsuccessors and assigns, heirs and legal representatives. Employee may not assign any of his obligations under this agreement to any other person or\nentity without the prior written consent of Employer and the Company.\n9. Entire Agreement This Agreement and the Merger Agreement contain the entire agreement of the parties, and supersedes all prior\nagreements, understandings and negotiations, whether written or oral, with respect to the subject matter hereof; provided, however, that the parties\nhereto acknowledge that this Agreement supersedes only certain provisions of the Biosite Severance Plan with respect to Employee and that, except\nas amended hereby, the Biosite Severance Plan remains in full force and effect in accordance with the terms thereof. However, for the avoidance of\ndoubt, none of the limitations related to the entitlement to benefits or the amount of benefits set out in Section 4 or Section 5 of the Biosite Severance\nPlan shall apply to amounts due under this Agreement. This Agreement may not be changed orally but only by an agreement in writing signed by the\nparty against whom enforcement of any waiver, change, modification, extension, or discharge is sought.\n10\n10. Severability.. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be\nineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, but shall be enforced to the\nmaximum extent permitted by law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such\nprovision in any other jurisdiction.\n11. Arbitration. To the fullest extent allowed by law, any controversy, claim or dispute between Employee and Employer (and/or any of its\nowners, directors, officers, employees, affiliates, subsidiaries or agents) relating to or arising out of Employee's employment or the cessation of that\nemployment will be submitted to JAMS for final and binding arbitration, to be held in Orange County, California, for determination in accordance\nwith the then current JAMS rules for the resolution of employment disputes, as the exclusive remedy for such controversy, claim or dispute. In any\nsuch arbitration, the parties may conduct discovery in accordance with the applicable rules of the arbitration forum, except that the arbitrator shall\nhave the authority to order and permit discovery as the arbitrator may deem necessary and appropriate in accordance with applicable state or federal\ndiscovery statutes. The arbitrator shall issue a reasoned, written decision, and shall have full authority to award all remedies which would be\navailable in court. The arbitrator will also have the power to direct that the party that substantially prevails in such arbitration proceeding be paid his\nor its reasonable attorneys' fees by the other party or parties, to the extent the arbitrator deems appropriate. The parties shall share the filing fees\nrequired for the arbitration. Employer shall pay the arbitrator's fees and any JAMS administrative expenses. The award of the arbitrator shall be\nfinal\nand binding upon the parties and may be entered as a judgment in any court of competent jurisdiction. Notwithstanding anything to the contrary\ncontained herein, Employer and Employee shall have their respective rights to seek and obtain injunctive relief through any court of competent\njurisdiction with respect to any controversy, claim or dispute to the extent permitted by law if such relief is not available, or not available in a timely\nmanner, through arbitration. Claims where mandatory arbitration is prohibited by law are not covered by this arbitration agreement, and such claims\nmay be presented by either Employee or Employer to the appropriate court or government agency. BY AGREEING TO THIS BINDING\nARBITRATION PROVISION, BOTH EMPLOYEE AND EMPLOYER GIVE UP ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO\nANY CLAIM SUBJECT TO ARBITRATION. This arbitration agreement is to be construed as broadly as is permissible under applicable law.\n12. Choice of Law. This Agreement shall be interpreted in accordance with the laws of the State of California without regard to the rules of\nconflict of laws.\n13. Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all\nof which together shall constitute one and the same instrument. Each counterpart may consist of a number of copies hereof each signed by less than\nall, but together signed by all of the parties hereto. Facsimile transmission of any signed original counterpart and/or retransmission of any signed\nfacsimile transmission shall be deemed the same as the delivery of an original.\n11\n14. Effectiveness of Agreement. Notwithstanding anything to the contrary set forth herein, this Agreement shall be contingent and effective\nupon the occurrence of the Effective Time, and if the Effective Time does not occur, including as a result of the termination of the Merger\nAgreement in accordance with its terms, this Agreement shall have no effect, and shall be null and void.\n[signature page follows]\n12\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.\nINVERNESS MEDICAL\nINNOVATIONS, INC.\nA Delaware corporation\nBy:\n/s/ Ron Zwanziger\nName: Ron Zwanziger\nTitle: CEO\nBIOSITE INCORPORATED\nA Delaware corporation\nBy:\n/s/ Chris Twomey\nName: Chris Twomey\nTitle: Sr. VP Finance, CFO\nGUNARS VALKIRS\n/s/ Gunars E. Valkirs\nSr. VP, Discovery\nSignature Page to Non-Competition, Non-Disclosure\nand Intellectual Property Assignment Agreement\n13\nSCHEDULE A\nCALIFORNIA LABOR CODE SECTION 2870\nINVENTION ON OWN TIME-EXEMPTION FROM AGREEMENT\n"(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer's equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1)\nRelate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably\nanticipated research or development of the employer; or\n(2)\nResult from any work performed by the employee for the employer.\n(b)\nTo the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being\nrequired to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable."\n14	EX-10.3 5 dex103.htm NON-COMPETITION, NON-DISCLOSURE AND INTELLECTUAL AGREEMENT -\nGUNARS E. VALKIRS\nExhibit 10.3\nNON-COMPETITION, NON-DISCLOSURE\nAND\nINTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT\nThis Non-competition, Non-disclosure and Intellectual Property Assignment Agreement (the “Agreement”) entered into as of May 17, 2007, is\nhereby made by and between INVERNESS MEDICAL INNOVATIONS, INC., a Delaware corporation (the “Company”) and, BIOSITE\nINCORPORATED, a Delaware corporation (the “Employer”), on the one hand, and Gunars Valkirs, an individual, who is a resident of and employed\nin the State of California (“Employee”), on the other hand.\nA. The Company, Employer, and Inca Acquisition, Inc., a wholly-owned subsidiary of the Company, are entering into an Agreement and Plan\nof Merger dated as of May 17, 2007 (the “Merger Agreement”), which provides for the acquisition of Employer by the Company, upon which\nEmployer would become a wholly owned subsidiary of the Company;\nB. Employee, Company and Employer desire to enter into this Agreement in connection with the transactions contemplated by the Merger\nAgreement, contingent and effective upon the Effective Time (as defined in the Merger Agreement);\nC. Employee is the owner of 172,010 shares of Common Stock of Employer and has options to purchase 285,306 shares of Common Stock of\nEmployer (the “Employee Options”), and thereby stands to benefit by, and receive consideration from, the transactions contemplated by the Merger\nAgreement.\nD. Contingent and effective upon the Effective Time, Employee will become employed by Employer.\nE. Company and Employer desire to protect their interest in the business acquired, including the goodwill of that business, from unfair\ncompetition or misappropriation of the intellectual property of the business.\nNOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Assignment of Intellectual Property Rights.\n(a) Definition of “Inventions.” As used herein, the term “Inventions” shall mean all inventions, discoveries, improvements, original\nworks of authorship, trade secrets, formulas, techniques, data, programs, systems, specifications, documentation, algorithms, flow charts, logic\ndiagrams, source codes, object codes, processes, and other technical, business, product, marketing or financial information, plans, or other subject\nmatter pertaining to the Company, Employer or any of their respective parents, subsidiaries, affiliates, customers, consultants or licensees, whether or\nnot patented, tested, reduced to practice, or subject to patent, trademark, copyright, trade secret, mask work or other forms of protection (including\nall rights to obtain, register, perfect, renew,\nextend, continue, divide and enforce these proprietary interests), which are made, created, authored, conceived, modified, enhanced or reduced to\npractice by Employee, either alone or jointly with others, during Employee’s employment with Employer or the Company or any of their respective\nparents, subsidiaries or affiliates, and for so long as Employee is otherwise employed by any of them, whether or not during normal working hours,\nwhich (A) relate to the actual or anticipated business, activities, research, or investigations of Employer or the Company or any of their respective\nsubsidiaries or affiliates or (B) result from or are suggested by work performed by Employee for Employer or the Company or any of their respective\nparents, subsidiaries or affiliates (whether or not made or conceived during normal working hours or on the premises of Employer), or (C) which\nresult, to any extent, from use of the time, material, proprietary information, premises or property of Employer or the Company or any of their\nrespective parents, subsidiaries or affiliates.\n(b) Work for Hire. Subject to Section 1(d), Employee expressly acknowledges that all copyrightable aspects of the Inventions are to be\nconsidered “works made for hire” within the meaning of the Copyright Act of 1976, as amended (the “Act”), and that Employer is to be the “author”\nwithin the meaning of such Act for all purposes. All such copyrightable works, as well as all copies of such works in whatever medium fixed or\nembodied, shall be owned exclusively by Employer as of its creation, and Employee hereby expressly disclaims any and all interest in any of such\ncopyrightable works and waives any right of droit morale or similar rights.\n(c) Assignment. Subject to Section 1(d), Employee acknowledges and agrees that all Inventions shall be the sole property of Employer or\nany other entity designated by Employer. Employee hereby conveys and irrevocably assigns to Employer, without further consideration, all his right,\ntitle and interest in and to, and all claims for past infringement of, all Inventions, including, with respect to any of the foregoing, all rights of\ncopyright, patent, trademark, trade secret, mask works, and any and all other proprietary rights therein, the right to modify and create derivative\nworks, the right to invoke the benefit of any priority under any international convention, and all rights to register and renew same. This assignment is\nintended to and does extend to Inventions which have not yet been created.\n(d) Exceptions. Notwithstanding the foregoing, and provided that Employee does not wrongfully misappropriate any Confidential\nInformation or Trade Secrets, Employee understands that the provisions of this Agreement requiring disclosure and assignment of Inventions to\nEmployer do not apply to any invention which qualifies under the provisions of California Labor Code Section 2870 set forth in Schedule A or any\nsimilar law applicable to Employer or Employee. Employee agrees to identify all Inventions made by Employee that Employee believes meet the\ncriteria of California Labor Code Section 2870 to Employer in confidence to permit a determination as to whether or not the Inventions are the\nproperty of Employer, and Employee agrees to disclose all information Employer reasonably requests about Inventions, including those Employee\ncontends qualify under this exception to his duty to assign Inventions. “Trade Secrets” shall mean the whole or any portion or phase of any plan,\ntechnique, method, design, process, procedure, or improvement of Employer, the Company or any of their\n2\nrespective affiliates or subsidiaries that is valuable and not generally known to Competitors, whether or not in written or tangible form. Trade Secrets\nshall not include any materials or information that is or becomes publicly known through no fault of Employee or is disclosed by the Company to\nthird parties without an obligation of confidentiality.\n(e) Proprietary Notices; No Filings; Waiver of Moral Rights. Employee acknowledges that subject to Section 1(d), all Inventions shall, at\nthe sole option of Employer, bear Employer’s patent, copyright, trademark, trade secret, and mask work notices. Subject to Section 1(d), Employee\nagrees not to file any patent, copyright, or trademark applications relating to any Invention, except with the prior written consent of an authorized\nrepresentative of the Company. Subject to Section 1(d), Employee hereby expressly disclaims any and all interest in any Inventions and waives any\nright of droit morale or similar rights, such as rights of integrity or the right to be attributed as the creator of the Invention.\n(f) Further Assurances. Employee agrees to assist Employer, or any party designated by Employer, promptly on Employer’s reasonable\nrequest and at Employer’s expense, whether before or after the termination of employment, however such termination may occur, in perfecting,\nregistering, maintaining, and enforcing, in any jurisdiction, Employer’s rights in the Inventions by performing all acts and executing all documents\nand instruments deemed necessary or convenient by Employer, including, by way of illustration and not limitation:\n(i) Executing assignments, applications, and other documents and instruments in connection with (A) obtaining patents, copyrights,\ntrademarks, mask works, or other proprietary protections for the Inventions and (B) confirming the assignment to Employer of all right, title,\nand interest in the Inventions or otherwise establishing Employer’s exclusive ownership rights therein.\n(ii) Cooperating in the prosecution of patent, copyright, trademark and mask work applications, as well as in the enforcement of\nEmployer’s rights in the Inventions, including, but not limited to, testifying in court or before any patent, copyright, trademark or mask work\nregistry office or any other administrative body.\nEmployee shall be reimbursed for all out-of-pocket costs incurred in connection with the foregoing, if such assistance is requested by\nEmployer. In addition, to the extent that, after the termination of employment for whatever reason, Employee’s technical expertise shall be required\nin connection with the fulfillment of the aforementioned obligations, Employer shall compensate Employee at a reasonable rate for the time actually\nspent by Employee at Employer’s request rendering such assistance.\n(g) Power of Attorney. Subject to Section 1(d), Employee hereby irrevocably appoints Employer to be his attorney-in-fact to execute any\ndocument and to take any action in his name and on his behalf solely for the purpose of giving to\n3\nEmployer the full benefit of the assignment provisions set forth above to the extent that after reasonable effort by Employer, Employee does not\ncomply with his obligations set forth in this Section 1.\n(h) Disclosure of Inventions. Subject to Section 1(d), Employee shall make full and prompt disclosure to Employer of all Inventions\nsubject to assignment to Employer and all information relating thereto in Employee’s possession or under his control as to possible applications and\nuse thereof.\n2. Non-Disclosure of Confidential Information, Exclusive Services/Non-Competition and Non-Solicitation.\n(a) Confidentiality. Employee acknowledges that in his employment with Employer or the Company he will occupy a position of trust\nand confidence. Employee shall not, except as may be required in the normal course of business to perform his duties hereunder or as required by\napplicable law, without limitation in time or until such information shall have become public other than by Employee’s unauthorized disclosure,\ndisclose to others or use, whether directly or indirectly, any Confidential Information. “Confidential Information” shall mean confidential or\nproprietary information about Employer, or the Company, or their respective subsidiaries or affiliates, or their respective clients and customers, that\nis not disclosed by Employer for financial reporting purposes and that was learned by Employee in the course of his employment by Employer or the\nCompany, or their respective parents, subsidiaries or affiliates (or during any period in which Employee performed services for or on behalf of\nEmployer), including (without limitation) any proprietary knowledge, trade secrets, data, formulae, information and client and customer lists and all\npapers, resumes, and records (including computer records) of the documents containing such Confidential Information. Employee acknowledges that\nsuch Confidential Information is specialized, unique in nature and of great value to Employer, its subsidiaries or affiliates, and that such information\ngives Employer a competitive advantage. Employee agrees to (i) deliver or return to Employer, at Employer’s request at any time or upon\ntermination or expiration of his employment or as soon thereafter as possible, (A) all documents, computer tapes and disks, records, lists, data,\ndrawings, prints, notes and written information (and all copies thereof) furnished by Employer, its subsidiaries or affiliates, or prepared by Employee\nfor so long as Employee is employed by Employer, its subsidiaries or affiliates, and (B) subject to Section 1(d), all notebooks and other data relating\nto research or experiments or other work conducted by Employee in the scope of his employment or any Inventions made, created, authored,\nconceived, or reduced to practice by Employee, either alone or jointly with others, and (ii) subject to Section 1(d), make full disclosure relating to\nany Inventions. If Employee would like to keep certain property, such as material relating to professional societies or other non-confidential material,\nupon the termination of employment with Employer, he agrees to discuss such issues with Employer. Where such a request does not put Confidential\nInformation at risk, such request shall not be unreasonably denied.\n(b) Exclusive Services/Non-Competition. Employee acknowledges that the Employer and the Company do business throughout the\nworld, that he is\n4\ndisposing of his entire interest in Employer, and that he will have access to Confidential Information of Employer and the Company. In order to\nprotect Employer’s and the Company’s interest in its Confidential Information and goodwill, for the greater of: (1) the period that Employee is\nemployed by Employer, the Company, or their respective parents, subsidiaries or affiliates; or (2) two (2) years following the Effective Time (the\n“Restricted Period”), Employee shall not, anywhere in the world, directly or indirectly, without the prior written consent of Employer:\n(i) perform some or all of the duties assigned to Employee during his employment with Employer or any of its parents, subsidiaries\nor affiliates, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as\nan employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other\nbusiness, individual, partner, firm, corporation or other entity is then a Competitor (as defined herein) of Employer or the Company, or any of\ntheir respective parents, subsidiaries or affiliates. For purposes of this Agreement, a “Competitor” is any person or entity engaged in the\ndesign, development, manufacture and world wide sale of automated and manual in vitro diagnostic products for drug testing, cardiovascular\ndiseases, cerebrovascular diseases and thromboebolic diseases (the “Biosite Business”); or\n(ii) perform any services, with or without pay, for his own account or that of any business, individual, partner, firm, corporation, or\nother entity, whether as an employee, consultant, owner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent\nEmployee or such other business, individual, partner, firm, corporation or other entity is then a Competitor of Employer or the Company, or\nany of their respective subsidiaries or affiliates, with respect to the Biosite Business.\nEmployee and Employer acknowledge and agree that the business of Employer is global in nature, and that the terms set forth herein shall\napply on a worldwide basis.\nEmployee acknowledges that during the period of his employment with Employer, the Company and their respective parents, subsidiaries and\naffiliates, he will owe a duty of loyalty to his employer, and, consequently, understands and agrees that he will not perform any services, with or\nwithout pay, for his own account or that of any business, individual, partner, firm, corporation, or other entity, whether as an employee, consultant,\nowner, manager, operator, stockholder, member, partner, lender or otherwise, to the extent Employee or such other business, individual, partner, firm,\ncorporation or other entity is then a Competitor of Employer or the Company, or any of their respective parents, subsidiaries or affiliates, with\nrespect to any business then engaged in by the Employer, the Company or any of their respective parents, subsidiaries or affiliates.\nNotwithstanding the foregoing, the “beneficial ownership” by Employee, either individually or as a member of a “group,” as such terms are\nused in Regulation 13D of the General Rules and Regulations under the Securities Exchange Act of 1934, as\n5\namended (the “Exchange Act”), of not more than five percent (5%) of the voting stock of any publicly held corporation shall not constitute a\nviolation of this Agreement.\nIn addition, notwithstanding the foregoing, continued service by Employee during the Restricted Period as a member of the board of directors\nand/or as a scientific, clinical, technical or strategic advisor to any business, firm, corporation or other entity for which Employee is providing such\nservices as of the date of this Agreement shall not constitute a violation of this Section 2(b).\n(c) Non-Solicitation of Customers and Suppliers. During the Restricted Period, Employee shall not, directly or indirectly, use any\nConfidential Information to influence or attempt to influence customers or suppliers of Employer or the Company, or any of their respective\nsubsidiaries or affiliates, with whom he had contact during his employment with Employer, the Company or any of their respective affiliates, to\ndivert their business to any Competitor. During the Restricted Period, Employee shall not directly or indirectly, use influence or attempt to influence\ncustomers or suppliers of Employer or the Company, or any of their respective subsidiaries or affiliates, with whom he had contact during his\nemployment with Employer, the Company or any of their respective affiliates, to divert their business to any Competitor with respect to the Biosite\nBusiness.\n(d) Non-Solicitation of Employees. Employee recognizes that he possesses and will possess confidential information about other\nemployees of Employer and the Company, and their respective parents, subsidiaries and affiliates, relating to their education, experience, skills,\nabilities, compensation and benefits, and inter-personal relationships with customers of Employer, the Company, and any of their respective parents,\nsubsidiaries and affiliates. Employee recognizes that the information he possesses and will possess about these other employees is not generally\nknown, is of substantial value to Employer and the Company, and their respective subsidiaries or affiliates in developing their business and in\nsecuring and retaining customers, and has been and will be acquired by him because of his business position with Employer, its subsidiaries and\naffiliates. Employee agrees that, during the Restricted Period, he will not, directly or indirectly, use Confidential Information of Employer or the\nCompany, or any of their respective subsidiaries or affiliates to solicit, directly or indirectly, any person who is then an employee of Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates to terminate or limit their employment relationship with Employer, the\nCompany or any of their respective parents, subsidiaries or affiliates, or to accept employment with any other person or entity. The foregoing shall\nnot be violated by general advertising not targeted at Employer employees or by Employee’s responding in any lawful manner to any person that\ninitiates contact with Employee during the Restricted Period.\n(e) Injunctive Relief. It is expressly agreed that Employer and/or the Company will or would suffer irreparable injury if Employee were\nto breach any of the provisions of this Section 2 and that Employer and/or the Company would by reason of any such breach be entitled to injunctive\nrelief in a court of appropriate jurisdiction without the need to post a bond or other security and without the need to demonstrate\n6\nspecial damages. The aforementioned injunctive relief is and shall be in addition to any other remedies that may be available to Employer or the\nCompany, or any of their respective subsidiaries or affiliates under this Agreement or otherwise.\n(f) Survival of Provisions. The obligations contained in this Section 2 shall survive the termination or expiration of Employee’s\nemployment with Employer, the Company or any of their respective parents, subsidiaries or affiliates, and shall be fully enforceable thereafter in the\ncase of the obligations contained in Section 2(a) and through the end of the Restricted Period in all other cases. If it is determined by a court of\ncompetent jurisdiction in any state that any restriction in this Section 2 is excessive in duration or scope or is unreasonable or unenforceable under\nthe laws of that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable to the\nmaximum extent permitted by the law of that state.\n(g) No Additional Obligations of Employee Excused. All of the provisions of this Section 2 are in addition to any other written\nagreements on the subjects covered herein that Employee may have with Employer and/or any of its subsidiaries or affiliates, and are not meant to\nand do not excuse any additional obligations that Employee may have under such agreements.\n(h) Tolling for Periods of Breach. The Restricted Period shall be extended for a period equal to any period during which Employee is in\nmaterial breach of this Section 2 with respect to the portion of this Section 2 as to which Employee is in breach, provided that within a reasonable\nperiod of time after becoming aware of the breach, the Company and/or Employer notifies Employee that it believes Employee is in breach of this\nSection 2.\n(i) Third-Party Beneficiaries. Employer’s parents, subsidiaries and affiliates, and the Company, and its parents, subsidiaries and affiliates\nshall be third-party beneficiaries of this Section 2 of this Agreement, and shall be entitled to enforce its provisions against Employee.\n(j) Termination of Obligations. Notwithstanding anything to the contrary set forth herein, Employee’s obligations under Sections 2(b),\n2(c) and 2(d) shall immediately terminate and be of no further force or effect if the Employer or Company fails to make the payments or provide\nbenefits to Employee required under the Agreement or Employer’s Change in Control Severance Benefit Plan, and fails to cure within thirty\n(30) days following receipt of written notice from Employee of its failure to pay.\n3. Cooperation in Third-Party Disputes. Employee shall reasonably cooperate with Employer or the Company, or any of their respective\nsubsidiaries or affiliates and each of their respective attorneys or other legal representatives (collectively referred to as “Attorneys”) in connection\nwith any claim, litigation, or judicial or arbitral proceeding which is now pending or may hereinafter be brought against Employer or the Company,\nor any of their respective subsidiaries or affiliates by any third party related to the period of Employee’s employment with Employer. Employee’s\nduty of cooperation\n7\nshall include, but shall not be limited to, (a) meeting with Attorneys by telephone or in person at mutually convenient times and places in order to\nstate truthfully Employee’s knowledge of the matters at issue and recollection of events; (b) appearing at Attorneys’ request (and, to the extent\nreasonably possible, at a time convenient to Employee that does not conflict with the needs or requirements of Employee’s then current employer) as\na witness at depositions, trials or other proceedings, without the necessity of a subpoena, in order to state truthfully Employee’s knowledge of the\nmatters at issue; and (c) signing at Attorneys’ request declarations or affidavits that truthfully state the matters of which Employee has knowledge.\nEmployer shall promptly reimburse Employee for Employee’s actual and reasonable travel and other out-of-pocket expenses that Employee may\nincur in cooperating with Attorneys pursuant to this Section 3. In addition, to the extent that, after the termination of Employee’s employment for\nany reason, Employee provides cooperation pursuant to this Section 3, Employer shall, upon Employee request, compensate Employee at a\nreasonable rate for the time actually spent by Employee at Employer’s request rendering such cooperation. The provisions of this Section 3 are in\naddition to any other written agreements on this subject that Employee may have with Employer or the Company, or any of their respective\nsubsidiaries or affiliates and are not meant to and do not excuse any additional obligations that Employee may have under such agreements.\n4. Effect on Change in Control Severance Benefit Plan. Employee hereby agrees that the execution of this Agreement and the application of\nthe terms hereof shall not in any event constitute “Good Reason” as such term is defined in the Biosite Incorporated Change in Control Severance\nBenefit Plan effective October 22, 2004 (the “Biosite Severance Plan”) prior to the Effective Time. Employee hereby waives any claims to the\ncontrary. However, any such waiver is null and void after the Effective Time.\n5. Additional Consideration in Support of this Agreement. In consideration of Employee entering into this Agreement, Employee shall be\nentitled to the following benefits:\n(a) At the Effective Time, Employer shall cause the Employee to receive, with respect to each Employee Option, in consideration for the\ncancellation thereof, an amount in cash, without interest, equal to the product of (x) the total number of shares of Common Stock subject to the\nEmployee Option multiplied by (y) the excess, if any, of the Merger Consideration (as defined in the Merger Agreement) over the per share exercise\nprice of such Employee Option, less applicable taxes required to be withheld with respect to any such payment (the “Option Consideration”). In the\nevent that the exercise price of any Employee Option is equal to or greater than the Merger Consideration, such Employee Option shall be cancelled\nand have no further force or effect. The Option Consideration paid with respect to the Employee Options in accordance with the terms hereof shall\nbe deemed to have been paid in full satisfaction of all rights and privileges pertaining to the Employee Options and, on and after the Effective Time,\nEmployee shall have no further rights with respect to any Employee Option, other than the right to receive the Option Consideration as provided\nherein. Employee acknowledges that this Section 5(a) is in lieu of any benefits to which the\n8\nEmployee may be entitled under (i) Section 4(a)(1)(iii) of the Biosite Severance Plan and (ii) Section 5.9(a) of the Merger Agreement.\n(b) Employer shall pay Employee an amount equal to two times the Employee’s current rate of base salary ($240,006) (the “Current Base\nSalary”), which amount shall be payable in two equal installments. The first installment shall be paid at the Effective Time. The second installment\nshall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the termination of the Employee’s employment by\nthe Employer or the Company for any reason or no reason, or by the Employee for Good Cause (as defined herein) (the “Transition Period”). For\npurposes of this Agreement only, “Good Cause” means a requirement by the Employer or the Company that the Employee either relocate his\nprincipal place of work prior to the Effective Time or during the Transition Period, or work on more than on an eighty percent (80%) basis, or\nperform work that is other than work that is essential and related to assisting with the reasonable transition of control of Employer. Employee\nacknowledges that this Section 5(b) is in lieu of any benefits to which the Employee may be entitled under Section 4(a)(1)(i) of the Biosite\nSeverance Plan.\n(c) Employer shall pay the Employee an amount equal to two times the Employee’s Negotiated Bonus (as defined below) that is, a sum\nequal to the Employee’s Current Annual Base Salary, which amount shall be payable in two equal installments. The first installment shall be paid at\nthe Effective Time. The second installment shall be paid upon the first to occur of (i) the six month anniversary of the Effective Time or (ii) the\ntermination of the Employee’s employment by the Employer or the Company for any reason or no reason or by the Employee for Good Cause (as\ndefined in Section 5(b)). The Employee’s “Negotiated Bonus” is an amount equal to 50% of the Employee’s Current Base Salary.\n(d) Employee acknowledges that this Section 5 is in lieu of any benefits to which Employee may be entitled under (i) Section 4(a)(1)(i)\nof the Biosite Severance Plan, (ii) Section 4 (a)(1)(iii) of the Biosite Severance Plan, and (iii) Section 5.9(a) of the Merger Agreement. Section 4(a)\n(1)(ii) of the Biosite Severance Plan remains in full force and effect except that Employer agrees that the period set forth therein shall be extended\nfrom eighteen (18) to twenty-four (24) months.\n(e) The parties hereto acknowledge that after September 30, 2007, the Employee intends to relocate out of the area and will perform his\nresponsibilities under this Agreement remotely and that such relocation and remote work will not impact any benefits to which Employee is entitled\nunder this Agreement or the Biosite Severance Plan.\n6. Anything in this Agreement to the contrary notwithstanding, if at the time of Employee’s separation from service within the meaning of\nSection 409A of the Internal Revenue Code of 1986, as amended (the “Code”), the Employee is considered a “specified employee” within the\nmeaning of Section 409A(a)(2)(B)(i) of the Code, and if any payment or benefit that the Employee becomes entitled to under this Agreement or\nunder the Biosite Severance Plan is considered deferred compensation subject to interest,\n9\npenalties and additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code,\nthen no such payment shall be payable or benefit shall be provided prior to the date that is the earliest of (i) six months and one day after the\nEmployee’s date of termination, (ii) the Employee’s death, or (iii) such other date as will cause such payment not to be subject to such interest,\npenalties and additional tax, and the initial payment or provision of benefit shall include a catch-up amount covering amounts that would otherwise\nhave been paid during the first six-month period but for the application of this Section 6. The parties intend that this Agreement will be administered\nin accordance with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and\nas may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and\nbenefits provided hereunder without additional cost to either party.\n7. Notices. All notices, demands, requests, consents, statements, satisfactions, waivers, designations, refusals, confirmations, denials and other\ncommunications that may be required or otherwise provided for or contemplated hereunder shall be in writing and shall be deemed to be properly\ngiven and received (a) upon delivery, if delivered in person or by e-mail or facsimile transmission with receipt acknowledged, (b) one business day\nafter having been deposited for overnight delivery with Federal Express or another comparable overnight courier service, or (c) three (3) business\ndays after having been deposited in any post office or mail depository regularly maintained by the U.S . Postal Service and sent by registered or\ncertified mail, postage prepaid, addressed to his residence address (or such other address as Employee may specify in a written notice to Employer)\nin the case of Employee, or to its principal office in the case of Employer.\n8. Benefits/Assignment. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective\nsuccessors and assigns, heirs and legal representatives. Employee may not assign any of his obligations under this agreement to any other person or\nentity without the prior written consent of Employer and the Company.\n9. Entire Agreement. This Agreement and the Merger Agreement contain the entire agreement of the parties, and supersedes all prior\nagreements, understandings and negotiations, whether written or oral, with respect to the subject matter hereof; provided, however, that the parties\nhereto acknowledge that this Agreement supersedes only certain provisions of the Biosite Severance Plan with respect to Employee and that, except\nas amended hereby, the Biosite Severance Plan remains in full force and effect in accordance with the terms thereof. However, for the avoidance of\ndoubt, none of the limitations related to the entitlement to benefits or the amount of benefits set out in Section 4 or Section 5 of the Biosite Severance\nPlan shall apply to amounts due under this Agreement. This Agreement may not be changed orally but only by an agreement in writing signed by the\nparty against whom enforcement of any waiver, change, modification, extension, or discharge is sought.\n10\n10. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be\nineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, but shall be enforced to the\nmaximum extent permitted by law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such\nprovision in any other jurisdiction.\n11. Arbitration. To the fullest extent allowed by law, any controversy, claim or dispute between Employee and Employer (and/or any of its\nowners, directors, officers, employees, affiliates, subsidiaries or agents) relating to or arising out of Employee’s employment or the cessation of that\nemployment will be submitted to JAMS for final and binding arbitration, to be held in Orange County, California, for determination in accordance\nwith the then current JAMS rules for the resolution of employment disputes, as the exclusive remedy for such controversy, claim or dispute. In any\nsuch arbitration, the parties may conduct discovery in accordance with the applicable rules of the arbitration forum, except that the arbitrator shall\nhave the authority to order and permit discovery as the arbitrator may deem necessary and appropriate in accordance with applicable state or federal\ndiscovery statutes. The arbitrator shall issue a reasoned, written decision, and shall have full authority to award all remedies which would be\navailable in court. The arbitrator will also have the power to direct that the party that substantially prevails in such arbitration proceeding be paid his\nor its reasonable attorneys’ fees by the other party or parties, to the extent the arbitrator deems appropriate. The parties shall share the filing fees\nrequired for the arbitration. Employer shall pay the arbitrator’s fees and any JAMS administrative expenses. The award of the arbitrator shall be final\nand binding upon the parties and may be entered as a judgment in any court of competent jurisdiction. Notwithstanding anything to the contrary\ncontained herein, Employer and Employee shall have their respective rights to seek and obtain injunctive relief through any court of competent\njurisdiction with respect to any controversy, claim or dispute to the extent permitted by law if such relief is not available, or not available in a timely\nmanner, through arbitration. Claims where mandatory arbitration is prohibited by law are not covered by this arbitration agreement, and such claims\nmay be presented by either Employee or Employer to the appropriate court or government agency. BY AGREEING TO THIS BINDING\nARBITRATION PROVISION, BOTH EMPLOYEE AND EMPLOYER GIVE UP ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO\nANY CLAIM SUBJECT TO ARBITRATION. This arbitration agreement is to be construed as broadly as is permissible under applicable law.\n12. Choice of Law. This Agreement shall be interpreted in accordance with the laws of the State of California without regard to the rules of\nconflict of laws.\n13. Counterparts; Facsimile. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all\nof which together shall constitute one and the same instrument. Each counterpart may consist of a number of copies hereof each signed by less than\nall, but together signed by all of the parties hereto. Facsimile transmission of any signed original counterpart and/or retransmission of any signed\nfacsimile transmission shall be deemed the same as the delivery of an original.\n11\n14. Effectiveness of Agreement. Notwithstanding anything to the contrary set forth herein, this Agreement shall be contingent and effective\nupon the occurrence of the Effective Time, and if the Effective Time does not occur, including as a result of the termination of the Merger\nAgreement in accordance with its terms, this Agreement shall have no effect, and shall be null and void.\n[signature page follows]\n12\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.\nINVERNESS MEDICAL\nINNOVATIONS, INC.\nA Delaware corporation\nBy: /s/ Ron Zwanziger\nName: Ron Zwanziger\nTitle: CEO\nBIOSITE INCORPORATED\nA Delaware corporation\nBy: /s/ Chris Twomey\nName: Chris Twomey\nTitle: Sr. VP Finance, CFO\nGUNARS VALKIRS\n/s/ Gunars E. Valkirs\nSr. VP, Discovery\nSignature Page to Non-Competition, Non-Disclosure\nand Intellectual Property Assignment Agreement\n13\nSCHEDULE A\nCALIFORNIA LABOR CODE SECTION 2870\nINVENTION ON OWN TIME-EXEMPTION FROM AGREEMENT\n“(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably\nanticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being\nrequired to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”\n14
+796aa7574c8e4717d31704518bac663f.pdf	effective_date jurisdiction party term	EX-10 .2 3 exhibit102-confidentiality.htm EXHIBIT\nExhibit 10.2\nConfidentiality and Business Protection Agreement\nThis Confidentiality and Business Protection Agreement (“Agreement”) is hereby entered into by and between\nJeffrey W. Henderson (“Executive”) and Cardinal Health, Inc., an Ohio Corporation (the “Company”) effective as of June\n10, 2014.\nIt is hereby agreed as follows:\n1.\nConsideration and Acknowledgements. The parties acknowledge that the provisions and covenants\ncontained in this Agreement are ancillary and material to, and in consideration of, the letter agreement concerning\nExecutive’s retirement dated June 10, 2014 (the “Letter Agreement”) and that the limitations contained herein are\nreasonable in geographic and temporal scope and do not impose a greater restriction or restraint than is necessary to\nprotect the goodwill and other legitimate business interests of the Company.\n2.\nConfidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company\nand all of its subsidiaries, partnerships, joint ventures, limited liability companies, and other affiliates (collectively, the\n"Cardinal Group"), all secret or confidential information, knowledge or data relating to the Cardinal Group and its\nbusinesses (including, without limitation, any proprietary and not publicly available information concerning any\nprocesses, methods, trade secrets, research, secret data, costs, names of users or purchasers of their respective\nproducts or services, business methods, operating procedures or programs or methods of promotion and sale) that\nExecutive has obtained or obtains during the Executive's employment by the Cardinal Group and that is not public\nknowledge (other than as a result of the Executive's violation of this Agreement) ("Confidential Information"). For the\npurposes of this Agreement, information shall not be deemed to be publicly available merely because it is embraced by\ngeneral disclosures or because individual features or combinations thereof are publicly available. Executive shall not\ncommunicate, divulge or disseminate Confidential Information at any time during or after Executive's employment with\nthe Cardinal Group, except with prior written consent of the applicable Cardinal Group company, or as otherwise\nrequired by law or legal process. All records, files, memoranda, reports, customer lists, drawings, plans, documents and\nthe like that Executive uses, prepares or comes into contact with during the course of Executive's employment shall\nremain the sole property of the Company and/or the Cardinal Group, as applicable, and shall be turned over to the\napplicable Cardinal Group company upon termination of Executive's employment.\n3.\nNon-Recruitment of Cardinal Group Employees, etc. Executive shall not, at any time during the\nRestricted Period (as defined in this Agreement), without the prior written consent of the Company, engage in the\nfollowing conduct (a "Solicitation"): (i) directly or indirectly, solicit, recruit or employ (whether as an employee, officer,\ndirector, agent, consultant or independent contractor) any person who is or was at any time during the previous twelve\nmonths an employee, representative, officer or director of the Cardinal Group; or (ii) take any action to encourage or\ninduce any employee, representative, officer or director of the Cardinal Group to cease his or her relationship with the\nCardinal Group for any reason. A "Solicitation" does not include any recruitment of employees for the Cardinal Group.\nThe "Restricted Period" means the period from the date of this Agreement\nuntil twenty-four months after Executive’s retirement date of August 21, 2015 specified in the Letter Agreement.\n4.\nNo Competition -- Solicitation of Business. During the Restricted Period, Executive shall not (as an\nofficer, agent, employee, partner, consultant or director of any other company, partnership or entity) be personally\ninvolved in direct or indirect solicitation on behalf of any competitor of the Cardinal Group of the business of (i) any\ncustomer of the Cardinal Group during the time of Executive's employment or at date of termination of employment or\n(ii) any potential customer of the Cardinal Group which Executive knew to be an identified, prospective purchaser of\nservices or products of the Cardinal Group.\n5.\nNo Competition -- Employment by Competitor. During the Restricted Period, Executive shall not invest\nin (other than in a publicly traded company with a maximum investment of no more than 1% of outstanding shares),\ncounsel, advise, or be otherwise engaged or employed by, any of the primary competitors of the Cardinal Group.\n6.\nAcknowledgement and Enforcement. Executive acknowledges and agrees that: (A) the purpose of the\nforegoing covenants, including without limitation the noncompetition covenants of Sections 4 and 5, is to protect the\ngoodwill, trade secrets and other Confidential Information of the Company; (B) because of the nature of the business in\nwhich the Cardinal Group is engaged and because of the nature of the Confidential Information to which Executive has\naccess, the Company would suffer irreparable harm and it would be impractical and excessively difficult to determine\nthe actual damages of the Cardinal Group in the event Executive breached any of the covenants of this Agreement; and\n(C) remedies at law (such as monetary damages) for any breach of Executive's obligations under this Agreement would\nbe inadequate. Executive therefore agrees and consents that if Executive commits any breach of a covenant under this\nAgreement or threatens to commit any such breach, the Company shall have the right (in addition to, and not in lieu of,\nany other right or remedy that may be available to it) to temporary and permanent injunctive relief from a court of\ncompetent jurisdiction, without posting any bond or other security and without the necessity of proof of actual damage.\n7.\nMiscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of\nOhio, without reference to principles of conflict of laws. If, under any such law, any portion of this Agreement is at any\ntime deemed to be in conflict with any applicable statute, rule, regulation or ordinance, such portion shall be deemed to\nbe modified or altered to conform thereto. The parties hereto irrevocably agree to submit to the jurisdiction and venue of\nthe courts of the State of Ohio in any action or proceeding brought with respect to or in connection with this Agreement.\nThe captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement\nmay not be amended or modified otherwise than by a written agreement executed by the parties hereto or their\nrespective successors and legal representatives.\n(b) All notices and other communications under this Agreement shall be in writing and shall be given by\nhand delivery to the other party or by registered or certified mail, return receipt requested, postage prepaid, addressed\nas follows:\nIf to the Executive: At the most recent address on file for Executive at the Company.\nIf to the Company: Cardinal Health, Inc.\n7000 Cardinal Place\nDublin, Ohio 43017\nAttention: General Counsel\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and\ncommunications shall be effective when actually received by the addressee.\n(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement. If any provision of this Agreement shall be held invalid or\nunenforceable in part, the remaining portion of such provision, together with all other provisions of this Agreement, shall\nremain valid and enforceable and continue in full force and effect to the fullest extent consistent with the law.\n(d) Executive's or the Company's failure to insist upon strict compliance with any provision of this\nAgreement or the failure to assert any right Executive or the Company may have hereunder, shall not be deemed to be\na waiver of such provision or right or any other provision or right of this Agreement.\nIN WITNESS WHEREOF, Executive has hereunto set Executive's hand and the Company has caused these presents\nto be executed in its name and on its behalf, all as of the day and year first above written.\n_/s/ Jeffrey W. Henderson_________________\nJeffrey W. Henderson.\nExecution Date: June 10, 2014\nCARDINAL HEALTH, INC.\n_/s/ Carole Watkins__________________\nBy: Carole Watkins\nIts: Chief Human Resources Officer\nExecution Date: June 10, 2014	EX-10.2 3 exhibit102-confidentiality.htm EXHIBIT\nExhibit 10.2\nConfidentiality and Business Protection Agreement\nThis Confidentiality and Business Protection Agreement (“Agreement”) is hereby entered into by and between\nJeffrey W. Henderson (“Executive”) and Cardinal Health, Inc., an Ohio Corporation (the “Company”) effective as of June\n10, 2014.\nIt is hereby agreed as follows:\n1. Consideration and Acknowledgements. The parties acknowledge that the provisions and covenants\ncontained in this Agreement are ancillary and material to, and in consideration of, the letter agreement concerning\nExecutive’s retirement dated June 10, 2014 (the “Letter Agreement”) and that the limitations contained herein are\nreasonable in geographic and temporal scope and do not impose a greater restriction or restraint than is necessary to\nprotect the goodwill and other legitimate business interests of the Company.\n2. Confidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company\nand all of its subsidiaries, partnerships, joint ventures, limited liability companies, and other affiliates (collectively, the\n"Cardinal Group"), all secret or confidential information, knowledge or data relating to the Cardinal Group and its\nbusinesses (including, without limitation, any proprietary and not publicly available information concerning any\nprocesses, methods, trade secrets, research, secret data, costs, names of users or purchasers of their respective\nproducts or services, business methods, operating procedures or programs or methods of promotion and sale) that\nExecutive has obtained or obtains during the Executive's employment by the Cardinal Group and that is not public\nknowledge (other than as a result of the Executive's violation of this Agreement) ("Confidential Information™). For the\npurposes of this Agreement, information shall not be deemed to be publicly available merely because it is embraced by\ngeneral disclosures or because individual features or combinations thereof are publicly available. Executive shall not\ncommunicate, divulge or disseminate Confidential Information at any time during or after Executive's employment with\nthe Cardinal Group, except with prior written consent of the applicable Cardinal Group company, or as otherwise\nrequired by law or legal process. All records, files, memoranda, reports, customer lists, drawings, plans, documents and\nthe like that Executive uses, prepares or comes into contact with during the course of Executive's employment shall\nremain the sole property of the Company and/or the Cardinal Group, as applicable, and shall be turned over to the\napplicable Cardinal Group company upon termination of Executive's employment.\n3. Non-Recruitment of Cardinal Group Em Emp@y&Ltc Executive shall not, at any time durlng the\nRestricted Period (as defined in this Agreement), without the prior written consent of the Company, engage in the\nfollowing conduct (a "Solicitation"): (i) directly or indirectly, solicit, recruit or employ (whether as an employee, officer,\ndirector, agent, consultant or independent contractor) any person who is or was at any time during the previous twelve\nmonths an employee, representative, officer or director of the Cardinal Group; or (ii) take any action to encourage or\ninduce any employee, representative, officer or director of the Cardinal Group to cease his or her relationship with the\nCardinal Group for any reason. A "Solicitation" does not include any recruitment of employees for the Cardinal Group.\nThe "Restricted Period" means the period from the date of this Agreement\nuntil twenty-four months after Executive’s retirement date of August 21, 2015 specified in the Letter Agreement.\n4. No Competition -- Solicitation of Business. During the Restricted Period, Executive shall not (as an\nofficer, agent, employee, partner, consultant or director of any other company, partnership or entity) be personally\ninvolved in direct or indirect solicitation on behalf of any competitor of the Cardinal Group of the business of (i) any\ncustomer of the Cardinal Group during the time of Executive's employment or at date of termination of employment or\n(i) any potential customer of the Cardinal Group which Executive knew to be an identified, prospective purchaser of\nservices or products of the Cardinal Group.\n5. No Competition -- Employment by Competitor. During the Restricted Period, Executive shall not invest\nin (other than in a publicly traded company with a maximum investment of no more than 1% of outstanding shares),\ncounsel, advise, or be otherwise engaged or employed by, any of the primary competitors of the Cardinal Group.\n6. Acknowledgement and Enforcement. Executive acknowledges and agrees that: (A) the purpose of the\nforegoing covenants, including without limitation the noncompetition covenants of Sections 4 and 5, is to protect the\ngoodwill, trade secrets and other Confidential Information of the Company; (B) because of the nature of the business in\nwhich the Cardinal Group is engaged and because of the nature of the Confidential Information to which Executive has\naccess, the Company would suffer irreparable harm and it would be impractical and excessively difficult to determine\nthe actual damages of the Cardinal Group in the event Executive breached any of the covenants of this Agreement; and\n(C) remedies at law (such as monetary damages) for any breach of Executive's obligations under this Agreement would\nbe inadequate. Executive therefore agrees and consents that if Executive commits any breach of a covenant under this\nAgreement or threatens to commit any such breach, the Company shall have the right (in addition to, and not in lieu of,\nany other right or remedy that may be available to it) to temporary and permanent injunctive relief from a court of\ncompetent jurisdiction, without posting any bond or other security and without the necessity of proof of actual damage.\n7. Miscellaneous.\n(& This Agreement shall be governed by and construed in accordance with the laws of the State of\nOhio, without reference to principles of conflict of laws. If, under any such law, any portion of this Agreement is at any\ntime deemed to be in conflict with any applicable statute, rule, regulation or ordinance, such portion shall be deemed to\nbe modified or altered to conform thereto. The parties hereto irrevocably agree to submit to the jurisdiction and venue of\nthe courts of the State of Ohio in any action or proceeding brought with respect to or in connection with this Agreement.\nThe captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement\nmay not be amended or modified otherwise than by a written agreement executed by the parties hereto or their\nrespective successors and legal representatives.\n(b) All notices and other communications under this Agreement shall be in writing and shall be given by\nhand delivery to the other party or by registered or certified mail, return receipt requested, postage prepaid, addressed\nas follows:\nIf to the Executive: At the most recent address on file for Executive at the Company.\nIf to the Company:  Cardinal Health, Inc.\n7000 Cardinal Place\nDublin, Ohio 43017\nAttention: General Counsel\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and\ncommunications shall be effective when actually received by the addressee.\n(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement. If any provision of this Agreement shall be held invalid or\nunenforceable in part, the remaining portion of such provision, together with all other provisions of this Agreement, shall\nremain valid and enforceable and continue in full force and effect to the fullest extent consistent with the law.\n(d)  Executive's or the Company's failure to insist upon strict compliance with any provision of this\nAgreement or the failure to assert any right Executive or the Company may have hereunder, shall not be deemed to be\na waiver of such provision or right or any other provision or right of this Agreement.\nIN WITNESS WHEREOF, Executive has hereunto set Executive's hand and the Company has caused these presents\nto be executed in its name and on its behalf, all as of the day and year first above written.\n[s/ Jeffrey W. Henderson\nJeffrey W. Henderson.\nExecution Date: June 10, 2014\nCARDINAL HEALTH, INC.\n/s/ Carole Watkins\nBy: Carole Watkins\nIts: Chief Human Resources Officer\nExecution Date: June 10, 2014	EX-10.2 exhibit102-confidentiality.htn EXHIBIT\nExhibit 10.2\nConfidentiality and Business Protection Agreement\nThis Confidentiality and Business Protection Agreement ("Agreement") is hereby entered into by and between\nJeffrey W. Henderson ("Executive") and Cardinal Health, Inc., an Ohio Corporation (the "Company") effective as of June\n10, 2014.\nIt is hereby agreed as follows:\n1. Consideration and Acknowledgements. The parties acknowledge that the provisions and covenants\ncontained in this Agreement are ancillary and material to, and in consideration of, the letter agreement concerning\nExecutive's retirement dated June 10, 2014 (the "Letter Agreement") and that the limitations contained herein are\nreasonable in geographic and temporal scope and do not impose a greater restriction or restraint than is necessary to\nprotect the goodwill and other legitimate business interests of the Company.\n2.\nConfidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company\nand all of its subsidiaries, partnerships, joint ventures, limited liability companies, and other affiliates (collectively, the\n"Cardina Group"), all secret or confidential information, knowledge or data relating to the Cardinal Group and its\nbusinesses (including, without limitation, any proprietary and not publicly available information concerning any\nprocesses, methods, trade secrets, research, secret data, costs, names of users or purchasers of their respective\nproducts\nor\nservices,\nbusiness\nmethods,\noperating\nprocedures\nor\nprograms\nor\nmethods\nof\npromotion\nand\nsale)\nthat\nExecutive has obtained or obtains during the Executive's employment by the Cardinal Group and that is not public\nknowledge (other than as a result of the Executive's violation of this Agreement) ("Confidential Information"). For the\npurposes\nof\nthis\nAgreement,\ninformation\nshall\nnot\nbe\ndeemed\nto\nbe\npublicly\navailable\nmerely\nbecause\nit\nis\nembraced\nby\ngeneral disclosures or because individual features or combinations thereof are publicly available. Executive shall not\ncommunicate, divulge or disseminate Confidential Information at any time during or after Executive's employment with\nthe\nCardinal\nGroup,\nexcept\nwith\nprior\nwritten\nconsent\nof\nthe\napplicable\nCardinal\nGroup\ncompany,\nor\nas\notherwise\nrequired by law or legal process. All records, files, memoranda, reports, customer lists, drawings, plans, documents and\nthe like that Executive uses, prepares or comes into contact with during the course of Executive's employment shall\nremain the sole property of the Company and/or the Cardinal Group, as applicable, and shall be turned over to the\napplicable Cardinal Group company upon termination of Executive's employment.\n3.\nNon-Recruitment of Cardinal Group Employees,e Executive shall not, at any time during the\nRestricted Period (as defined in this Agreement), without the prior written consent of the Company, engage in the\nfollowing conduct (a "Solicitation"): (i) directly or indirectly, solicit, recruit or employ (whether as an employee, officer,\ndirector, agent, consultant or independent contractor) any person who is or was at any time during the previous twelve\nmonths an employee, representative, officer or director of the Cardinal Group; or (ii) take any action to encourage or\ninduce any employee, representative, officer or director of the Cardinal Group to cease his or her relationship with the\nCardinal Group for any reason. A "Solicitation" does not include any recruitment of employees for the Cardinal Group.\nThe "Restricted Period" means the period from the date of this Agreement\nuntil twenty-four months after Executive's retirement date of August 21, 2015 specified in the Letter Agreement.\n4.\nNo Competition Solicitation of Business. During the Restricted Period, Executive shall not (as an\nofficer, agent, employee, partner, consultant or director of any other company, partnership or entity) be personally\ninvolved in direct or indirect solicitation on behalf of any competitor of the Cardinal Group of the business of (i) any\ncustomer of the Cardinal Group during the time of Executive's employment or at date of termination of employment or\n(ii) any potentia customer of the Cardinal Group which Executive knew to be an identified, prospective purchaser\nof\nservices or products of the Cardinal Group.\n5.\nNo Competition Employment by. Competitor. During the Restricted Period, Executive shall not invest\nin (other than in a publicly traded company with a maximum investment of no more than 1% of outstanding shares),\ncounsel, advise, or be otherwise engaged or employed by, any of the primary competitors of the Cardinal Group.\n6.\nAcknowledgement and Enforcement. Executive acknowledges and agrees that: (A) the purpose of the\nforegoing covenants, including without limitation the noncompetition covenants of Sections 4 and 5, is to protect the\ngoodwill, trade secrets and other Confidential Information of the Company; (B) because of the nature of the business in\nwhich\nthe\nCardinal\nGroup\nis\nengaged\nand\nbecause\nof\nthe\nnature\nof\nthe\nConfidential\nInformation\nto\nwhich\nExecutive\nhas\naccess, the Company would suffer irreparable harm and it would be impractical and excessively difficult to determine\nthe actual damages of the Cardinal Group in the event Executive breached any of the covenants of this Agreement; and\n(C) remedies at law (such as monetary damages) for any breach of Executive's obligations under this Agreement would\nbe inadequate. Executive therefore agrees and consents that if Executive commits any breach of a covenant under this\nAgreement or threatens to commit any such breach, the Company shall have the right (in addition to, and not in lieu of,\nany other right or remedy that may be available to it) to temporary and permanent injunctive relief from a court\nof\ncompetent jurisdiction, without posting any bond or other security and without the necessity of proof of actual damage.\n7.\nMiscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of\nOhio, without reference to principles of conflict of laws. If, under any such law, any portion of this Agreement is at any\ntime deemed to be in conflict with any applicable statute, rule, regulation or ordinance, such portion shall be deemed to\nbe\nmodified\nor\naltered\nto\nconform\nthereto.\nThe\nparties\nhereto\nirrevocably\nagree\nto\nsubmit\nto\nthe\njurisdiction\nand\nvenue\nof\nthe courts of the State of Ohio in any action or proceeding brought with respect to or in connection with this Agreement.\nThe captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement\nmay not be amended or modified otherwise than by a written agreement executed by the parties hereto or their\nrespective successors and legal representatives.\n(b) All notices and other communications under this Agreement shall be in writing and shall be given by\nhand delivery to the other party or by registered or certified mail, return receipt requested, postage prepaid, addressed\nas follows:\nIf to the Executive: At the most recent address on file for Executive at the Company.\nIf to the Company:\nCardinal Health, Inc.\n7000 Cardinal Place\nDublin, Ohio 43017\nAttention: General Counsel\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and\ncommunications shall be effective when actually received by the addressee.\n(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement. If any provision of this Agreement shall be held invalid or\nunenforceable in part, the remaining portion of such provision, together with all other provisions of this Agreement, shall\nremain valid and enforceable and continue in full force and effect to the fullest extent consistent with the law.\n(d) Executive's or the Company's failure to insist upon strict compliance with any provision of this\nAgreement or the failure to assert any right Executive or the Company may have hereunder, shall not be deemed to be\na waiver of such provision or right or any other provision or right of this Agreement.\nIN WITNESS WHEREOF, Executive has hereunto set Executive's hand and the Company has caused these presents\nto be executed in its name and on its behalf, all as of the day and year first above written.\nIs/ Jeffrey W. Henderson\nJeffrey W. Henderson.\nExecution Date: June 10, 2014\nCARDINAL HEALTH, INC.\n/s/ Carole Watkins\nBy: Carole Watkins\nIts: Chief Human Resources Officer\nExecution Date: June 10, 2014	EX-10 .2 3 exhibit102-confidentiality.htm EXHIBIT\nExhibit 10.2\nConfidentiality and Business Protection Agreement\nThis Confidentiality and Business Protection Agreement (“Agreement”) is hereby entered into by and between\nJeffrey W. Henderson (“Executive”) and Cardinal Health, Inc., an Ohio Corporation (the “Company”) effective as of June\n10, 2014.\nIt is hereby agreed as follows:\n1.\nConsideration and Acknowledgements. The parties acknowledge that the provisions and covenants\ncontained in this Agreement are ancillary and material to, and in consideration of, the letter agreement concerning\nExecutive’s retirement dated June 10, 2014 (the “Letter Agreement”) and that the limitations contained herein are\nreasonable in geographic and temporal scope and do not impose a greater restriction or restraint than is necessary to\nprotect the goodwill and other legitimate business interests of the Company.\n2.\nConfidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company\nand all of its subsidiaries, partnerships, joint ventures, limited liability companies, and other affiliates (collectively, the\n"Cardinal Group"), all secret or confidential information, knowledge or data relating to the Cardinal Group and its\nbusinesses (including, without limitation, any proprietary and not publicly available information concerning any\nprocesses, methods, trade secrets, research, secret data, costs, names of users or purchasers of their respective\nproducts or services, business methods, operating procedures or programs or methods of promotion and sale) that\nExecutive has obtained or obtains during the Executive's employment by the Cardinal Group and that is not public\nknowledge (other than as a result of the Executive's violation of this Agreement) ("Confidential Information"). For the\npurposes of this Agreement, information shall not be deemed to be publicly available merely because it is embraced by\ngeneral disclosures or because individual features or combinations thereof are publicly available. Executive shall not\ncommunicate, divulge or disseminate Confidential Information at any time during or after Executive's employment with\nthe Cardinal Group, except with prior written consent of the applicable Cardinal Group company, or as otherwise\nrequired by law or legal process. All records, files, memoranda, reports, customer lists, drawings, plans, documents and\nthe like that Executive uses, prepares or comes into contact with during the course of Executive's employment shall\nremain the sole property of the Company and/or the Cardinal Group, as applicable, and shall be turned over to the\napplicable Cardinal Group company upon termination of Executive's employment.\n3.\nNon-Recruitment of Cardinal Group Employees, etc. Executive shall not, at any time during the\nRestricted Period (as defined in this Agreement), without the prior written consent of the Company, engage in the\nfollowing conduct (a "Solicitation"): (i) directly or indirectly, solicit, recruit or employ (whether as an employee, officer,\ndirector, agent, consultant or independent contractor) any person who is or was at any time during the previous twelve\nmonths an employee, representative, officer or director of the Cardinal Group; or (ii) take any action to encourage or\ninduce any employee, representative, officer or director of the Cardinal Group to cease his or her relationship with the\nCardinal Group for any reason. A "Solicitation" does not include any recruitment of employees for the Cardinal Group.\nThe "Restricted Period" means the period from the date of this Agreement\nuntil twenty-four months after Executive’s retirement date of August 21, 2015 specified in the Letter Agreement.\n4.\nNo Competition -- Solicitation of Business. During the Restricted Period, Executive shall not (as an\nofficer, agent, employee, partner, consultant or director of any other company, partnership or entity) be personally\ninvolved in direct or indirect solicitation on behalf of any competitor of the Cardinal Group of the business of (i) any\ncustomer of the Cardinal Group during the time of Executive's employment or at date of termination of employment or\n(ii) any potential customer of the Cardinal Group which Executive knew to be an identified, prospective purchaser of\nservices or products of the Cardinal Group.\n5.\nNo Competition -- Employment by Competitor. During the Restricted Period, Executive shall not invest\nin (other than in a publicly traded company with a maximum investment of no more than 1% of outstanding shares),\ncounsel, advise, or be otherwise engaged or employed by, any of the primary competitors of the Cardinal Group.\n6.\nAcknowledgement and Enforcement. Executive acknowledges and agrees that: (A) the purpose of the\nforegoing covenants, including without limitation the noncompetition covenants of Sections 4 and 5, is to protect the\ngoodwill, trade secrets and other Confidential Information of the Company; (B) because of the nature of the business in\nwhich the Cardinal Group is engaged and because of the nature of the Confidential Information to which Executive has\naccess, the Company would suffer irreparable harm and it would be impractical and excessively difficult to determine\nthe actual damages of the Cardinal Group in the event Executive breached any of the covenants of this Agreement; and\n(C) remedies at law (such as monetary damages) for any breach of Executive's obligations under this Agreement would\nbe inadequate. Executive therefore agrees and consents that if Executive commits any breach of a covenant under this\nAgreement or threatens to commit any such breach, the Company shall have the right (in addition to, and not in lieu of,\nany other right or remedy that may be available to it) to temporary and permanent injunctive relief from a court of\ncompetent jurisdiction, without posting any bond or other security and without the necessity of proof of actual damage.\n7.\nMiscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of\nOhio, without reference to principles of conflict of laws. If, under any such law, any portion of this Agreement is at any\ntime deemed to be in conflict with any applicable statute, rule, regulation or ordinance, such portion shall be deemed to\nbe modified or altered to conform thereto. The parties hereto irrevocably agree to submit to the jurisdiction and venue of\nthe courts of the State of Ohio in any action or proceeding brought with respect to or in connection with this Agreement.\nThe captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement\nmay not be amended or modified otherwise than by a written agreement executed by the parties hereto or their\nrespective successors and legal representatives.\n(b) All notices and other communications under this Agreement shall be in writing and shall be given by\nhand delivery to the other party or by registered or certified mail, return receipt requested, postage prepaid, addressed\nas follows:\nIf to the Executive: At the most recent address on file for Executive at the Company.\nIf to the Company: Cardinal Health, Inc.\n7000 Cardinal Place\nDublin, Ohio 43017\nAttention: General Counsel\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and\ncommunications shall be effective when actually received by the addressee.\n(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement. If any provision of this Agreement shall be held invalid or\nunenforceable in part, the remaining portion of such provision, together with all other provisions of this Agreement, shall\nremain valid and enforceable and continue in full force and effect to the fullest extent consistent with the law.\n(d) Executive's or the Company's failure to insist upon strict compliance with any provision of this\nAgreement or the failure to assert any right Executive or the Company may have hereunder, shall not be deemed to be\na waiver of such provision or right or any other provision or right of this Agreement.\nIN WITNESS WHEREOF, Executive has hereunto set Executive's hand and the Company has caused these presents\nto be executed in its name and on its behalf, all as of the day and year first above written.\n_/s/ Jeffrey W. Henderson_________________\nJeffrey W. Henderson.\nExecution Date: June 10, 2014\nCARDINAL HEALTH, INC.\n_/s/ Carole Watkins__________________\nBy: Carole Watkins\nIts: Chief Human Resources Officer\nExecution Date: June 10, 2014
+79b6066281288c2d1c2403fedab7a893.pdf	effective_date jurisdiction party term	EX-10.16 26 dex1016.htm FORM OF CONFIDENTIALITY & NON-COMPETITION AGREEMENT\nEXHIBIT 10.16\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT dated\nbetween Florists’ Transworld Delivery Inc. (the “Company”)\nand\n(the “Executive”).\nIn consideration of the obligations of the Company and the consideration to be received by the Company pursuant to the Employment\nAgreement, dated as of the date hereof (the “Employment Agreement”) between the Company and the Executive, the Company and the Executive\nagree as follows:\nSection 1. Secrecy, Non-Competition, No Interference and Non-Solicitation.\n(a) No Competing Employment. The Executive acknowledges that (i) the agreements and covenants contained in this Section 1 are\nessential to protect the value of the Company’s business and assets and (ii) by virtue of his employment with the Company, the Executive will obtain\nsuch knowledge, know-how, training and experience of such a character that there is a substantial probability that such knowledge, know-how,\ntraining and experience could be used to the substantial advantage of a competitor of the Company and to the Company’s substantial detriment.\nTherefore, the Executive agrees that, for the period (the “Restricted Period”) commencing on the date of this Agreement and ending on the date that\nis one year after the termination of the Executive’s employment under the Employment Agreement for any reason, the Executive shall not\nparticipate, operate, manage, consult, join, control or engage, directly or indirectly, for himself or on behalf of or in conjunction with any person,\npartnership, corporation or other entity, whether as an employee, consultant, agent, officer, stockholder, member, investor, agent or otherwise, in any\nbusiness activity if such activity constitutes the sale or provision of floral products or services that are similar to, or competitive with, floral products\nor services then being sold or provided by the Company or any of its subsidiaries or affiliated companies, including, without limitation, retail\nflorists’ business services, floral order transmission and related network services, development and distribution of branded floral products on the\nInternet or other consumer direct segment of the floral industry (including, without limitation, Interflora, Inc., Teleflora Inc., 1-800-\nFLOWERS.COM, Inc., PC Flowers & Gifts.com Inc.,(a “Competitive Activity”), in any of: the City of Downers Grove, Illinois, the County of\nDuPage, Illinois or any other city or county in the State of Illinois; the District of Columbia or any other state, territory, district or commonwealth of\nthe United States or any county, parish, city or similar political subdivision in any other state, territory, district or commonwealth of the United\nStates; any other country or territory anywhere in the world or in any city, canton, county, district, parish, province or any other political subdivision\nin any such country or territory; or anywhere in the world (each city, canton, commonwealth, county, district, parish, province, state, country,\nterritory or other political subdivision or other location in the world shall be referred to as a “Non-competition Area”). The parties to this Agreement\nintend that the covenant contained in the preceding sentence of this Section 1(a) shall be construed as a series of separate covenants, one for each\ncity, canton, commonwealth, county, district, parish, state, province, country, territory, or other political subdivision or other area of the world\nspecified. Except for geographic coverage, each separate covenant shall be considered identical in terms to the covenant contained in the preceding\nsentence. The parties further acknowledge the breadth of the covenants, but agree that such broad covenants are necessary and appropriate in the\nlight of the global nature of the Competitive Activity. If, in any judicial or other\nproceeding, a court or other body declines to enforce any of the separate covenants included in this Section 1(a), the unenforceable covenant shall be\nconsidered eliminated from these provisions for the purpose of those proceedings to the extent necessary to permit the remaining separate covenants\nto be enforced. Notwithstanding the foregoing, the Executive may maintain or undertake purely passive investments on behalf of himself, his\nimmediate family or any trust on behalf of himself or his immediate family in companies engaged in a Competitive Activity so long as the aggregate\ninterest represented by such investments does not exceed 1% of any class of the outstanding publicly traded debt or equity securities of any company\nengaged in a Competitive Activity.\n(b) Nondisclosure of Confidential Information. The Executive, except in connection with his employment hereunder, shall not disclose to\nany person or entity or use, either during his employment with the Company or at any time thereafter, any information not in the public domain, in\nany form, acquired by the Executive while employed by the Company or, if acquired following his employment with the Company, such information\nthat, to the Executive’s knowledge, has been acquired, directly or indirectly, from any person or entity owing a duty of confidentiality to the\nCompany or any of its affiliates, relating to the Company, FTD, Inc., a Delaware corporation and the direct parent corporation of the Company\n(“FTDI”), or any of its or their subsidiaries or affiliated companies, including but not limited to trade secrets, technical information, systems,\nprocedures, test data, price lists, financial or other data (including the revenues, costs or profits associated with any of the Company’s products),\nbusiness and product plans, code books, invoices and other financial statements, computer programs, discs and printouts, customer and supplier lists\nor names, personnel files, sales and advertising material, telephone numbers, names, addresses or any other compilation of information, written or\nunwritten, that is or was used in the business of the Company, FTDI, any predecessor of the Company, FTDI or any of the Company’s, or FTDI’s\nsubsidiaries. The Executive agrees and acknowledges that all of such information, in any form, and copies and extracts thereof are and shall remain\nthe sole and exclusive property of the Company, and upon termination of his employment with the Company, the Executive shall return to the\nCompany the originals and all copies (and shall delete all such items in electronic format) of any such information provided to or acquired by the\nExecutive in connection with the performance of his duties for the Company, and shall return to the Company all files, correspondence or other\ncommunications (including any such materials in electronic format) received, maintained or originated by the Executive during the course of his\nemployment.\n(c) No Interference and Non-Solicitation. During the Restricted Period, the Executive shall not, whether for his own account or for the\naccount of any other individual, partnership, firm, corporation or other business organization (other than the Company), solicit, endeavor to entice\naway from the Company, FTDI, or any of the Company’s or FTDI’s subsidiaries, or otherwise interfere with the relationship of the Company or any\nof its subsidiaries or affiliated companies with, any person who, to the knowledge of the Executive, is (or has at any time within the preceding three\nmonths been) employed by or otherwise engaged to perform services for the Company, FTDI or any of the Company’s or FTDI’s subsidiaries\n(including, but not limited to, any independent sales representatives or organizations) or any entity who is, or was within the then most recent 12-\nmonth period, a customer or client of the Company, FTDI, any predecessor of the Company or FTDI or any of the Company’s or FTDI’s subsidiaries\n(a “Customer”); provided, however, that this Section 1(c) shall not prohibit the\n2\nExecutive from employing, for his own account, following a termination of the employment of the Executive, any person employed by a Customer\nor supplier, if such employment is not in connection with a Competitive Activity.\nSection 2. Calculation of Time Period. The Executive agrees that if the Executive violates the provisions of Section 1(a) of this Agreement, the\nrunning of the Restricted Period shall be tolled for the period in which the Executive is in violation of such non-competition provisions. The\nExecutive understands that the foregoing restrictions may limit the Executive’s ability to earn a livelihood in a business engaged in a Competitive\nActivity, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as an\nemployee of the Company and as otherwise provided under the Employment Agreement to clearly justify restrictions that, in any event, given his\neducation, skills and ability, the Executive does not believe would prevent the Executive from earning a living.\nSection 3. Irreparable Injury. It is further expressly agreed that the Company will or would suffer irreparable injury if the Executive were to\ncompete with the Company, FTDI or any of its or their subsidiaries or affiliated companies in violation of this Agreement and that the Company\nwould by reason of such competition be entitled to injunctive relief in a court of appropriate jurisdiction, and the Executive further consents and\nstipulates to the entry of such injunctive relief in such a court prohibiting the Executive from competing with the Company or FTDI or any of its or\ntheir subsidiaries or affiliated companies in violation of this Agreement.\nSection 4. Representation and Warranties of the Executive. The Executive represents and warrants that the execution of this Agreement and\nsubsequent employment with the Company does not and will not conflict with any obligations and the Executive has to any former employers or any\nother entity. The Executive further represents and warrants that he has not brought to the Company, and will not at any time bring to the Company,\nany materials, documents or other property of any nature of a former employer.\nSection 5. Miscellaneous.\n(a) Jurisdiction, Choice of Law and Venue. The validity and construction of this Agreement shall be governed by the internal laws of the\nState of Illinois, excluding the conflicts-of-laws principles thereof. Each party hereto consents to the jurisdiction of, and venue in, any federal or state\ncourt of competent jurisdiction located in the City of Chicago.\n(b) Entire Agreement. This Agreement and any other agreement or document delivered in connection with this Agreement, including the\nEmployment Agreement and the Restricted Shares Agreement, dated as of the date hereof, between the Company and the Executive, state the entire\nagreement and understanding of the parties on the subject matter of this Agreement, and supersede all previous agreements, arrangements,\ncommunications and understandings relating to that subject matter.\n(c) Counterparts. This Agreement may be signed in two or more counterparts, each of which shall be deemed an original, with the same\neffect as if all signatures were on the same document.\n3\n(d) Amendment; Wavier; etc. This Agreement, and each other agreement or document delivered in connection with this Agreement, may\nbe amended, modified, superseded or canceled, and any of the terms thereof may be waived, only by a written document signed by each party to this\nAgreement or, in the case of waiver, by the party or parties waiving compliance. The delay or failure of any party at any time or times to exercise any\nright or require the performance of any duty under this Agreement or any other agreement or document delivered in connection with this Agreement\nshall in no way affect the right of that party at a later time to exercise that right or enforce that duty or any other right or duty. No waiver by any\nparty of any condition or of any breach of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed or\nconstrued to be a further or continuing waiver of any such condition or breach or of the breach of any other term of this Agreement. A single or\npartial exercise of any right shall not preclude any other or further exercise of the same right or of any other right. The rights and remedies provided\nby this Agreement shall be cumulative and not exclusive of each other or of any other rights or remedies provided by law.\n(e) Severability. If any provision of this Agreement or any other agreement or document delivered in connection with this Agreement, if\nany, is partially or completely invalid or unenforceable in any jurisdiction, then that provision shall be ineffective in that jurisdiction to the extent of\nits invalidity or unenforceability, but the invalidity or unenforceability of that provision shall not affect the validity or enforceability of any other\nprovision of this Agreement, all of which shall be construed and enforced as if that invalid or unenforceable provision were omitted, nor shall the\ninvalidity or unenforceability of that provision in one jurisdiction affect its validity or enforceability in any other jurisdiction. The Company and the\nExecutive agree that the period of time and the geographical area described in Section 1 are reasonable in view of the nature of the business in which\nthe Company is engaged and proposes to be engaged, and the Executive’s understanding of his prospective future employment opportunities.\nHowever, if the time period or the geographical area, or both, described in Section 1 should be judged unreasonable in any judicial proceeding, then\nthe period of time shall be reduced by that number of months and the geographical area shall be reduced by elimination of that portion, or both, as\nare deemed unreasonable, so that the restriction covenant of Section 1 may be enforced during the longest period of time and in the fullest\ngeographical area as is adjudged to be reasonable.\n(f) Arbitration.\n(i) Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in\nChicago, Illinois in accordance with the commercial arbitration rules of the American Arbitration Association. Judgment upon the award\nrendered in the arbitration may be entered in any court having jurisdiction.\n(ii) Notwithstanding the clause (i) above, the Executive acknowledges and understands that the provisions of this Agreement are of\na special and unique nature, the loss of which cannot be accurately compensated for in damages by an action at law, and that the breach or\nthreatened breach of the provisions of this Agreement would cause the Company irreparable harm. In the event of a breach or threatened\nbreach by the Executive of the provisions of Section 1, the Company shall be entitled to seek to obtain a court-ordered injunction restraining\nthe Executive from the breach or threatened breach upon the terms and conditions as the court ordering the injunction may impose.\n4\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.\nFlorists’ Transworld Delivery Inc.\nBy:\nRobert L. Norton\nCEO and Chairman of the Board\n[Name of Executive]\n5	EX-10.16 26 dex1016.htm FORM OF CONFIDENTIALITY & NON-COMPETITION AGREEMENT\nEXHIBIT 10.16\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT dated between Florists’ Transworld Delivery Inc. (the “Company”)\nand (the “Executive™).\nIn consideration of the obligations of the Company and the consideration to be received by the Company pursuant to the Employment\nAgreement, dated as of the date hereof (the “Employment Agreement”) between the Company and the Executive, the Company and the Executive\nagree as follows:\nSection 1. Secrecy, Non-Competition, No Interference and Non-Solicitation.\n(a) No Competing Employment. The Executive acknowledges that (i) the agreements and covenants contained in this Section 1 are\nessential to protect the value of the Company’s business and assets and (ii) by virtue of his employment with the Company, the Executive will obtain\nsuch knowledge, know-how, training and experience of such a character that there is a substantial probability that such knowledge, know-how,\ntraining and experience could be used to the substantial advantage of a competitor of the Company and to the Company’s substantial detriment.\nTherefore, the Executive agrees that, for the period (the “Restricted Period”) commencing on the date of this Agreement and ending on the date that\nis one year after the termination of the Executive’s employment under the Employment Agreement for any reason, the Executive shall not\nparticipate, operate, manage, consult, join, control or engage, directly or indirectly, for himself or on behalf of or in conjunction with any person,\npartnership, corporation or other entity, whether as an employee, consultant, agent, officer, stockholder, member, investor, agent or otherwise, in any\nbusiness activity if such activity constitutes the sale or provision of floral products or services that are similar to, or competitive with, floral products\nor services then being sold or provided by the Company or any of its subsidiaries or affiliated companies, including, without limitation, retail\nflorists’ business services, floral order transmission and related network services, development and distribution of branded floral products on the\nInternet or other consumer direct segment of the floral industry (including, without limitation, Interflora, Inc., Teleflora Inc., 1-800-\nFLOWERS.COM, Inc., PC Flowers & Gifts.com Inc.,(a “Competitive Activity”), in any of: the City of Downers Grove, Illinois, the County of\nDuPage, Illinois or any other city or county in the State of Illinois; the District of Columbia or any other state, territory, district or commonwealth of\nthe United States or any county, parish, city or similar political subdivision in any other state, territory, district or commonwealth of the United\nStates; any other country or territory anywhere in the world or in any city, canton, county, district, parish, province or any other political subdivision\nin any such country or territory; or anywhere in the world (each city, canton, commonwealth, county, district, parish, province, state, country,\nterritory or other political subdivision or other location in the world shall be referred to as a “Non-competition Area”). The parties to this Agreement\nintend that the covenant contained in the preceding sentence of this Section 1(a) shall be construed as a series of separate covenants, one for each\ncity, canton, commonwealth, county, district, parish, state, province, country, territory, or other political subdivision or other area of the world\nspecified. Except for geographic coverage, each separate covenant shall be considered identical in terms to the covenant contained in the preceding\nsentence. The parties further acknowledge the breadth of the covenants, but agree that such broad covenants are necessary and appropriate in the\nlight of the global nature of the Competitive Activity. If, in any judicial or other\nproceeding, a court or other body declines to enforce any of the separate covenants included in this Section 1(a), the unenforceable covenant shall be\nconsidered eliminated from these provisions for the purpose of those proceedings to the extent necessary to permit the remaining separate covenants\nto be enforced. Notwithstanding the foregoing, the Executive may maintain or undertake purely passive investments on behalf of himself, his\nimmediate family or any trust on behalf of himself or his immediate family in companies engaged in a Competitive Activity so long as the aggregate\ninterest represented by such investments does not exceed 1% of any class of the outstanding publicly traded debt or equity securities of any company\nengaged in a Competitive Activity.\n(b) Nondisclosure of Confidential Information. The Executive, except in connection with his employment hereunder, shall not disclose to\nany person or entity or use, either during his employment with the Company or at any time thereafter, any information not in the public domain, in\nany form, acquired by the Executive while employed by the Company or, if acquired following his employment with the Company, such information\nthat, to the Executive’s knowledge, has been acquired, directly or indirectly, from any person or entity owing a duty of confidentiality to the\nCompany or any of its affiliates, relating to the Company, FTD, Inc., a Delaware corporation and the direct parent corporation of the Company\n(“FTDI”), or any of its or their subsidiaries or affiliated companies, including but not limited to trade secrets, technical information, systems,\nprocedures, test data, price lists, financial or other data (including the revenues, costs or profits associated with any of the Company’s products),\nbusiness and product plans, code books, invoices and other financial statements, computer programs, discs and printouts, customer and supplier lists\nor names, personnel files, sales and advertising material, telephone numbers, names, addresses or any other compilation of information, written or\nunwritten, that is or was used in the business of the Company, FTDI, any predecessor of the Company, FTDI or any of the Company’s, or FTDI’s\nsubsidiaries. The Executive agrees and acknowledges that all of such information, in any form, and copies and extracts thereof are and shall remain\nthe sole and exclusive property of the Company, and upon termination of his employment with the Company, the Executive shall return to the\nCompany the originals and all copies (and shall delete all such items in electronic format) of any such information provided to or acquired by the\nExecutive in connection with the performance of his duties for the Company, and shall return to the Company all files, correspondence or other\ncommunications (including any such materials in electronic format) received, maintained or originated by the Executive during the course of his\nemployment.\n(c) No Interference and Non-Solicitation. During the Restricted Period, the Executive shall not, whether for his own account or for the\naccount of any other individual, partnership, firm, corporation or other business organization (other than the Company), solicit, endeavor to entice\naway from the Company, FTDI, or any of the Company’s or FTDI’s subsidiaries, or otherwise interfere with the relationship of the Company or any\nof its subsidiaries or affiliated companies with, any person who, to the knowledge of the Executive, is (or has at any time within the preceding three\nmonths been) employed by or otherwise engaged to perform services for the Company, FTDI or any of the Company’s or FTDI’s subsidiaries\n(including, but not limited to, any independent sales representatives or organizations) or any entity who is, or was within the then most recent 12-\nmonth period, a customer or client of the Company, FTDI, any predecessor of the Company or FTDI or any of the Company’s or FTDI’s subsidiaries\n(a “Customer”); provided, however, that this Section 1(c) shall not prohibit the\n2\nExecutive from employing, for his own account, following a termination of the employment of the Executive, any person employed by a Customer\nor supplier, if such employment is not in connection with a Competitive Activity.\nSection 2. Calculation of Time Period. The Executive agrees that if the Executive violates the provisions of Section 1(a) of this Agreement, the\nrunning of the Restricted Period shall be tolled for the period in which the Executive is in violation of such non-competition provisions. The\nExecutive understands that the foregoing restrictions may limit the Executive’s ability to earn a livelihood in a business engaged in a Competitive\nActivity, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as an\nemployee of the Company and as otherwise provided under the Employment Agreement to clearly justify restrictions that, in any event, given his\neducation, skills and ability, the Executive does not believe would prevent the Executive from earning a living.\nSection 3. Irreparable Injury. It is further expressly agreed that the Company will or would suffer irreparable injury if the Executive were to\ncompete with the Company, FTDI or any of its or their subsidiaries or affiliated companies in violation of this Agreement and that the Company\nwould by reason of such competition be entitled to injunctive relief in a court of appropriate jurisdiction, and the Executive further consents and\nstipulates to the entry of such injunctive relief in such a court prohibiting the Executive from competing with the Company or FTDI or any of its or\ntheir subsidiaries or affiliated companies in violation of this Agreement.\nSection 4. Representation and Warranties of the Executive. The Executive represents and warrants that the execution of this Agreement and\nsubsequent employment with the Company does not and will not conflict with any obligations and the Executive has to any former employers or any\nother entity. The Executive further represents and warrants that he has not brought to the Company, and will not at any time bring to the Company,\nany materials, documents or other property of any nature of a former employer.\nSection 5. Miscellaneous.\n(a) Jurisdiction, Choice of Law and Venue. The validity and construction of this Agreement shall be governed by the internal laws of the\nState of Illinois, excluding the conflicts-of-laws principles thereof. Each party hereto consents to the jurisdiction of, and venue in, any federal or state\ncourt of competent jurisdiction located in the City of Chicago.\n(b) Entire Agreement. This Agreement and any other agreement or document delivered in connection with this Agreement, including the\nEmployment Agreement and the Restricted Shares Agreement, dated as of the date hereof, between the Company and the Executive, state the entire\nagreement and understanding of the parties on the subject matter of this Agreement, and supersede all previous agreements, arrangements,\ncommunications and understandings relating to that subject matter.\n(c) Counterparts. This Agreement may be signed in two or more counterparts, each of which shall be deemed an original, with the same\neffect as if all signatures were on the same document.\n(d) Amendment; Wavier; etc. This Agreement, and each other agreement or document delivered in connection with this Agreement, may\nbe amended, modified, superseded or canceled, and any of the terms thereof may be waived, only by a written document signed by each party to this\nAgreement or, in the case of waiver, by the party or parties waiving compliance. The delay or failure of any party at any time or times to exercise any\nright or require the performance of any duty under this Agreement or any other agreement or document delivered in connection with this Agreement\nshall in no way affect the right of that party at a later time to exercise that right or enforce that duty or any other right or duty. No waiver by any\nparty of any condition or of any breach of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed or\nconstrued to be a further or continuing waiver of any such condition or breach or of the breach of any other term of this Agreement. A single or\npartial exercise of any right shall not preclude any other or further exercise of the same right or of any other right. The rights and remedies provided\nby this Agreement shall be cumulative and not exclusive of each other or of any other rights or remedies provided by law.\n(e) Severability. If any provision of this Agreement or any other agreement or document delivered in connection with this Agreement, if\nany, is partially or completely invalid or unenforceable in any jurisdiction, then that provision shall be ineffective in that jurisdiction to the extent of\nits invalidity or unenforceability, but the invalidity or unenforceability of that provision shall not affect the validity or enforceability of any other\nprovision of this Agreement, all of which shall be construed and enforced as if that invalid or unenforceable provision were omitted, nor shall the\ninvalidity or unenforceability of that provision in one jurisdiction affect its validity or enforceability in any other jurisdiction. The Company and the\nExecutive agree that the period of time and the geographical area described in Section 1 are reasonable in view of the nature of the business in which\nthe Company is engaged and proposes to be engaged, and the Executive’s understanding of his prospective future employment opportunities.\nHowever, if the time period or the geographical area, or both, described in Section 1 should be judged unreasonable in any judicial proceeding, then\nthe period of time shall be reduced by that number of months and the geographical area shall be reduced by elimination of that portion, or both, as\nare deemed unreasonable, so that the restriction covenant of Section 1 may be enforced during the longest period of time and in the fullest\ngeographical area as is adjudged to be reasonable.\n(f) Arbitration.\n(i) Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in\nChicago, Illinois in accordance with the commercial arbitration rules of the American Arbitration Association. Judgment upon the award\nrendered in the arbitration may be entered in any court having jurisdiction.\n(ii) Notwithstanding the clause (i) above, the Executive acknowledges and understands that the provisions of this Agreement are of\na special and unique nature, the loss of which cannot be accurately compensated for in damages by an action at law, and that the breach or\nthreatened breach of the provisions of this Agreement would cause the Company irreparable harm. In the event of a breach or threatened\nbreach by the Executive of the provisions of Section 1, the Company shall be entitled to seek to obtain a court-ordered injunction restraining\nthe Executive from the breach or threatened breach upon the terms and conditions as the court ordering the injunction may impose.\n4\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.\nFlorists’ Transworld Delivery Inc.\nBy:\nRobert L. Norton\nCEO and Chairman of the Board\n[Name of Executive]	EX-10.16 26 dex 1016.htm FORM OF CONFIDENTIALITY & NON-COMPETITION AGREEMENT\nEXHIBIT 10.16\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT dated\nbetween Florists' Transworld Delivery Inc. (the "Company")\nand\n(the "Executive").\nIn consideration of the obligations of the Company and the consideration to be received by the Company pursuant to the Employment\nAgreement, dated as of the date hereof (the "Employment Agreement") between the Company and the Executive, the Company and the Executive\nagree as follows:\nSection 1. Secrecy, Non-Competition, No Interference and Non-Solicitation.\n(a) No Competing Employment. The Executive acknowledges that (i) the agreements and covenants contained in this Section 1 are\nessential to protect the value of the Company's business and assets and (ii) by virtue of his employment with the Company, the Executive will obtain\nsuch knowledge, know-how, training and experience of such a character that there is a substantial probability that such knowledge, know-how,\ntraining and experience could be used to the substantial advantage of a competitor of the Company and to the Company's substantial detriment.\nTherefore, the Executive agrees that, for the period (the "Restricted Period") commencing on the date of this Agreement and ending on the date that\nis one year after the termination of the Executive's employment under the Employment Agreement for any reason, the Executive shall not\nparticipate, operate, manage consult, join, control or engage, directly or indirectly, for himself or on behalf of or in conjunction with any person\npartnership, corporation or other entity, whether as an employee, consultant, agent, officer, stockholder, member, investor, agent or otherwise, in any\nbusiness activity if such activity constitutes the sale or provision of floral products or services that are similar to, or competitive with, floral products\nor\nservices then being sold or provided by the Company or any of its subsidiaries or affiliated companies, including, without limitation, retail\nflorists business services, floral order transmission and related network services, development and distribution of branded floral products on the\nInternet or other consumer direct segment of the floral industry (including, without limitation, Interflora, Inc., Teleflora Inc., 1-800-\nFLOWERS.COM, Inc., PC Flowers & Gifts.com Inc.,(a "Competitive Activity"), in any of: the City of Downers Grove, Illinois, the County of\nDuPage, Illinois or any other city or county in the State of Illinois; the District of Columbia or any other state, territory, district or commonwealth\nof\nthe United States or any county, parish, city or similar political subdivision in any other state, territory, district or commonwealth of the United\nStates; any other country or territory anywhere in the world or in any city, canton, county, district, parish, province or any other political subdivision\nin any such country or territory; or anywhere in the world (each city, canton, commonwealth, county, district, parish, province, state, country,\nterritory or other political subdivision or other location in the world shall be referred to as a "Non-competition Area"). The parties to this Agreement\nintend that the covenant contained in the preceding sentence of this Section 1(a) shall be construed as a series of separate covenants, one for each\ncity, canton, commonwealth, county, district, parish, state, province, country, territory, or other political subdivision or other area of the world\nspecified. Except for geographic coverage, each separate covenant shall be considered identical in terms to the covenant contained in the preceding\nsentence. The parties further acknowledge the breadth of the covenants, but agree that such broad covenants are necessary and appropriate in\nthe\nlight of the global nature of the Competitive Activity. If, in any judicial or other\nproceeding, a court or other body declines to enforce any of the separate covenants included in this Section 1(a), the unenforceable covenant shall be\nconsidered eliminated from these provisions for the purpose of those proceedings to the extent necessary to permit the remaining separate covenants\nto be enforced. Notwithstanding the foregoing, the Executive may maintain or undertake purely passive investments on behalf of himself, his\nimmediate family or any trust on behalf of himself or his immediate family in companies engaged in a Competitive Activity so long as the aggregate\ninterest represented by such investments does not exceed 1% of any class of the outstanding publicly traded debt or equity securities of any company\nengaged in a Competitive Activity.\n(b) Nondisclosure of Confidential Information. The Executive, except in connection with his employment hereunder, shall not disclose to\nany person or entity or use, either during his employment with the Company or at any time thereafter, any information not in the public domain,\nin\nany form, acquired by the Executive while employed by the Company or, if acquired following his employment with the Company, such information\nthat, to the Executive's knowledge, has been acquired, directly or indirectly, from any person or entity owing a duty of confidentiality to the\nCompany or any of its affiliates, relating to the Company, FTD, Inc., a Delaware corporation and the direct parent corporation of the Company\n("FTDI"), or any of its or their subsidiaries or affiliated companies, including but not limited to trade secrets, technical information, systems,\nprocedures, test data, price lists, financial or other data (including the revenues, costs or profits associated with any of the Company's products),\nbusiness and product plans, code books, invoices and other financial statements, computer programs, discs and printouts, customer and supplier lists\nor names, personnel files, sales and advertising material, telephone numbers, names, addresses or any other compilation of information, written or\nunwritten, that is or was used in the business of the Company, FTDI, any predecessor of the Company, FTDI or any of the Company's, or FTDI's\nsubsidiaries. The Executive agrees and acknowledges that all of such information, in any form, and copies and extracts thereof are and shall remain\nthe sole and exclusive property of the Company, and upon termination of his employment with the Company, the Executive shall return to the\nCompany the originals and all copies (and shall delete all such items in electronic format) of any such information provided to or acquired by the\nExecutive in connection with the performance of his duties for the Company, and shall return to the Company all files, correspondence or other\ncommunications (including any such materials in electronic format) received, maintained or originated by the Executive during the course of his\nemployment.\n(c) No Interference and Non-Solicitation. During the Restricted Period, the Executive shall not, whether for his own account or for the\naccount of any other individual, partnership, firm, corporation or other business organization (other than the Company), solicit, endeavor to entice\naway from the Company, FTDI, or any of the Company's or FTDI's subsidiaries, or otherwise interfere with the relationship of the Company or any\nof its subsidiaries or affiliated companies with, any person who, to the knowledge of the Executive, is (or has at any time within the preceding three\nmonths been) employed by or otherwise engaged to perform services for the Company, FTDI or any of the Company's or FTDI's subsidiaries\n(including, but not limited to, any independent sales representatives or organizations) or any entity who is, or was within the then most recent 12-\nmonth period, a customer or client of the Company, FTDI, any predecessor of the Company or FTDI or any of the Company's or FTDI's subsidiaries\n(a "Customer"); provided, however, that this Section 1(c) shall not prohibit the\n2\nExecutive from employing, for his own account, following a termination of the employment of the Executive, any person employed by a Customer\nor supplier, if such employment is not in connection with a Competitive Activity.\nSection 2. Calculation of Time Period. The Executive agrees that if the Executive violates the provisions of Section 1(a) of this Agreement, the\nrunning of the Restricted Period shall be tolled for the period in which the Executive is in violation of such non-competition provisions. The\nExecutive understands that the foregoing restrictions may limit the Executive's ability to earn a livelihood in a business engaged in a Competitive\nActivity, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as an\nemployee of the Company and as otherwise provided under the Employment Agreement to clearly justify restrictions that, in any event, given his\neducation, skills and ability, the Executive does not believe would prevent the Executive from earning a living.\nSection 3. Irreparable Injury. It is further expressly agreed that the Company will or would suffer irreparable injury if the Executive were to\ncompete with the Company, FTDI or any of its or their subsidiaries or affiliated companies in violation of this Agreement and that the Company\nwould by reason of such competition be entitled to injunctive relief in a court of appropriate jurisdiction, and the Executive further consents and\nstipulates to the entry of such injunctive relief in such a court prohibiting the Executive from competing with the Company or FTDI or any of its\nor\ntheir subsidiaries or affiliated companies in violation of this Agreement.\nSection 4. Representation and Warranties of the Executive. The Executive represents and warrants that the execution of this Agreement and\nsubsequent employment with the Company does not and will not conflict with any obligations and the Executive has to any former employers or any\nother entity. The Executive further represents and warrants that he has not brought to the Company, and will not at any time bring to the Company,\nany materials, documents or other property of any nature of a former employer.\nSection 5. Miscellaneous.\n(a) Jurisdiction, Choice of Law and Venue. The validity and construction of this Agreement shall be governed by the internal laws of the\nState of Illinois, excluding the conflicts-of-laws principles thereof. Each party hereto consents to the jurisdiction of, and venue in, any federal or state\ncourt of competent jurisdiction located in the City of Chicago.\n(b) Entire Agreement. This Agreement and any other agreement or document delivered in connection with this Agreement, including the\nEmployment Agreement and the Restricted Shares Agreement, dated as of the date hereof, between the Company and the Executive, state the entire\nagreement and understanding of the parties on the subject matter of this Agreement, and supersede all previous agreements, arrangements,\ncommunications and understandings relating to that subject matter.\n(c) Counterparts. This Agreement may be signed in two or more counterparts, each of which shall be deemed an original, with the same\neffect as if all signatures were on the same document.\n3\n(d) Amendment; Wavier; etc. This Agreement, and each other agreement or document delivered in connection with this Agreement, may\nbe\namended, modified, superseded or canceled, and any of the terms thereof may be waived, only by a written document signed by each party to this\nAgreement or, in the case of waiver, by the party or parties waiving compliance. The delay or failure of any party at any time or times to exercise any\nright or require the performance of any duty under this Agreement or any other agreement or document delivered in connection with this Agreement\nshall in no way affect the right of that party at a later time to exercise that right or enforce that duty or any other right or duty. No waiver by any\nparty of any condition or of any breach of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed or\nconstrued to be a further or continuing waiver of any such condition or breach or of the breach of any other term of this Agreement. A single or\npartial exercise of any right shall not preclude any other or further exercise of the same right or of any other right. The rights and remedies provided\nby this Agreement shall be cumulative and not exclusive of each other or of any other rights or remedies provided by law.\n(e) Severability.. If any provision of this Agreement or any other agreement or document delivered in connection with this Agreement, if\nany, is partially or completely invalid or unenforceable in any jurisdiction, then that provision shall be ineffective in that jurisdiction to the extent of\nits invalidity or unenforceability, but the invalidity or unenforceability of that provision shall not affect the validity or enforceability of any other\nprovision of this Agreement, all of which shall be construed and enforced as if that invalid or unenforceable provision were omitted, nor shall the\ninvalidity or unenforceability of that provision in one jurisdiction affect its validity or enforceability in any other jurisdiction. The Company and\nthe\nExecutive agree that the period of time and the geographical area described in Section 1 are reasonable in view of the nature of the business in which\nthe Company is engaged and proposes to be engaged, and the Executive's understanding of his prospective future employment opportunities.\nHowever, if the time period or the geographical area, or both, described in Section 1 should be judged unreasonable in any judicial proceeding, then\nthe period of time shall be reduced by that number of months and the geographical area shall be reduced by elimination of that portion, or both, as\nare deemed unreasonable, so that the restriction covenant of Section 1 may be enforced during the longest period of time and in the fullest\ngeographical area as is adjudged to be reasonable.\n(f) Arbitration.\n(i) Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration\nin\nChicago, Illinois in accordance with the commercial arbitration rules of the American Arbitration Association. Judgment upon the award\nrendered in the arbitration may be entered in any court having jurisdiction.\n(ii) Notwithstanding the clause (i) above, the Executive acknowledges and understands that the provisions of this Agreement are of\na special and unique nature, the loss of which cannot be accurately compensated for in damages by an action at law, and that the breach or\nthreatened breach of the provisions of this Agreement would cause the Company irreparable harm. In the event of a breach or threatened\nbreach by the Executive of the provisions of Section 1, the Company shall be entitled to seek to obtain a court-ordered injunction restraining\nthe Executive from the breach or threatened breach upon the terms and conditions as the court ordering the injunction may impose.\n4\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.\nFlorists' Transworld Delivery Inc.\nBy:\nRobert L. Norton\nCEO and Chairman of the Board\n[Name of Executive]\n5	EX-10.16 26 dex1016.htm FORM OF CONFIDENTIALITY & NON-COMPETITION AGREEMENT\nEXHIBIT 10.16\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT dated\nbetween Florists’ Transworld Delivery Inc. (the “Company”)\nand\n(the “Executive”).\nIn consideration of the obligations of the Company and the consideration to be received by the Company pursuant to the Employment\nAgreement, dated as of the date hereof (the “Employment Agreement”) between the Company and the Executive, the Company and the Executive\nagree as follows:\nSection 1. Secrecy, Non-Competition, No Interference and Non-Solicitation.\n(a) No Competing Employment. The Executive acknowledges that (i) the agreements and covenants contained in this Section 1 are\nessential to protect the value of the Company’s business and assets and (ii) by virtue of his employment with the Company, the Executive will obtain\nsuch knowledge, know-how, training and experience of such a character that there is a substantial probability that such knowledge, know-how,\ntraining and experience could be used to the substantial advantage of a competitor of the Company and to the Company’s substantial detriment.\nTherefore, the Executive agrees that, for the period (the “Restricted Period”) commencing on the date of this Agreement and ending on the date that\nis one year after the termination of the Executive’s employment under the Employment Agreement for any reason, the Executive shall not\nparticipate, operate, manage, consult, join, control or engage, directly or indirectly, for himself or on behalf of or in conjunction with any person,\npartnership, corporation or other entity, whether as an employee, consultant, agent, officer, stockholder, member, investor, agent or otherwise, in any\nbusiness activity if such activity constitutes the sale or provision of floral products or services that are similar to, or competitive with, floral products\nor services then being sold or provided by the Company or any of its subsidiaries or affiliated companies, including, without limitation, retail\nflorists’ business services, floral order transmission and related network services, development and distribution of branded floral products on the\nInternet or other consumer direct segment of the floral industry (including, without limitation, Interflora, Inc., Teleflora Inc., 1-800-\nFLOWERS.COM, Inc., PC Flowers & Gifts.com Inc.,(a “Competitive Activity”), in any of: the City of Downers Grove, Illinois, the County of\nDuPage, Illinois or any other city or county in the State of Illinois; the District of Columbia or any other state, territory, district or commonwealth of\nthe United States or any county, parish, city or similar political subdivision in any other state, territory, district or commonwealth of the United\nStates; any other country or territory anywhere in the world or in any city, canton, county, district, parish, province or any other political subdivision\nin any such country or territory; or anywhere in the world (each city, canton, commonwealth, county, district, parish, province, state, country,\nterritory or other political subdivision or other location in the world shall be referred to as a “Non-competition Area”). The parties to this Agreement\nintend that the covenant contained in the preceding sentence of this Section 1(a) shall be construed as a series of separate covenants, one for each\ncity, canton, commonwealth, county, district, parish, state, province, country, territory, or other political subdivision or other area of the world\nspecified. Except for geographic coverage, each separate covenant shall be considered identical in terms to the covenant contained in the preceding\nsentence. The parties further acknowledge the breadth of the covenants, but agree that such broad covenants are necessary and appropriate in the\nlight of the global nature of the Competitive Activity. If, in any judicial or other\nproceeding, a court or other body declines to enforce any of the separate covenants included in this Section 1(a), the unenforceable covenant shall be\nconsidered eliminated from these provisions for the purpose of those proceedings to the extent necessary to permit the remaining separate covenants\nto be enforced. Notwithstanding the foregoing, the Executive may maintain or undertake purely passive investments on behalf of himself, his\nimmediate family or any trust on behalf of himself or his immediate family in companies engaged in a Competitive Activity so long as the aggregate\ninterest represented by such investments does not exceed 1% of any class of the outstanding publicly traded debt or equity securities of any company\nengaged in a Competitive Activity.\n(b) Nondisclosure of Confidential Information. The Executive, except in connection with his employment hereunder, shall not disclose to\nany person or entity or use, either during his employment with the Company or at any time thereafter, any information not in the public domain, in\nany form, acquired by the Executive while employed by the Company or, if acquired following his employment with the Company, such information\nthat, to the Executive’s knowledge, has been acquired, directly or indirectly, from any person or entity owing a duty of confidentiality to the\nCompany or any of its affiliates, relating to the Company, FTD, Inc., a Delaware corporation and the direct parent corporation of the Company\n(“FTDI”), or any of its or their subsidiaries or affiliated companies, including but not limited to trade secrets, technical information, systems,\nprocedures, test data, price lists, financial or other data (including the revenues, costs or profits associated with any of the Company’s products),\nbusiness and product plans, code books, invoices and other financial statements, computer programs, discs and printouts, customer and supplier lists\nor names, personnel files, sales and advertising material, telephone numbers, names, addresses or any other compilation of information, written or\nunwritten, that is or was used in the business of the Company, FTDI, any predecessor of the Company, FTDI or any of the Company’s, or FTDI’s\nsubsidiaries. The Executive agrees and acknowledges that all of such information, in any form, and copies and extracts thereof are and shall remain\nthe sole and exclusive property of the Company, and upon termination of his employment with the Company, the Executive shall return to the\nCompany the originals and all copies (and shall delete all such items in electronic format) of any such information provided to or acquired by the\nExecutive in connection with the performance of his duties for the Company, and shall return to the Company all files, correspondence or other\ncommunications (including any such materials in electronic format) received, maintained or originated by the Executive during the course of his\nemployment.\n(c) No Interference and Non-Solicitation. During the Restricted Period, the Executive shall not, whether for his own account or for the\naccount of any other individual, partnership, firm, corporation or other business organization (other than the Company), solicit, endeavor to entice\naway from the Company, FTDI, or any of the Company’s or FTDI’s subsidiaries, or otherwise interfere with the relationship of the Company or any\nof its subsidiaries or affiliated companies with, any person who, to the knowledge of the Executive, is (or has at any time within the preceding three\nmonths been) employed by or otherwise engaged to perform services for the Company, FTDI or any of the Company’s or FTDI’s subsidiaries\n(including, but not limited to, any independent sales representatives or organizations) or any entity who is, or was within the then most recent 12-\nmonth period, a customer or client of the Company, FTDI, any predecessor of the Company or FTDI or any of the Company’s or FTDI’s subsidiaries\n(a “Customer”); provided, however, that this Section 1(c) shall not prohibit the\n2\nExecutive from employing, for his own account, following a termination of the employment of the Executive, any person employed by a Customer\nor supplier, if such employment is not in connection with a Competitive Activity.\nSection 2. Calculation of Time Period. The Executive agrees that if the Executive violates the provisions of Section 1(a) of this Agreement, the\nrunning of the Restricted Period shall be tolled for the period in which the Executive is in violation of such non-competition provisions. The\nExecutive understands that the foregoing restrictions may limit the Executive’s ability to earn a livelihood in a business engaged in a Competitive\nActivity, but the Executive nevertheless believes that the Executive has received and will receive sufficient consideration and other benefits as an\nemployee of the Company and as otherwise provided under the Employment Agreement to clearly justify restrictions that, in any event, given his\neducation, skills and ability, the Executive does not believe would prevent the Executive from earning a living.\nSection 3. Irreparable Injury. It is further expressly agreed that the Company will or would suffer irreparable injury if the Executive were to\ncompete with the Company, FTDI or any of its or their subsidiaries or affiliated companies in violation of this Agreement and that the Company\nwould by reason of such competition be entitled to injunctive relief in a court of appropriate jurisdiction, and the Executive further consents and\nstipulates to the entry of such injunctive relief in such a court prohibiting the Executive from competing with the Company or FTDI or any of its or\ntheir subsidiaries or affiliated companies in violation of this Agreement.\nSection 4. Representation and Warranties of the Executive. The Executive represents and warrants that the execution of this Agreement and\nsubsequent employment with the Company does not and will not conflict with any obligations and the Executive has to any former employers or any\nother entity. The Executive further represents and warrants that he has not brought to the Company, and will not at any time bring to the Company,\nany materials, documents or other property of any nature of a former employer.\nSection 5. Miscellaneous.\n(a) Jurisdiction, Choice of Law and Venue. The validity and construction of this Agreement shall be governed by the internal laws of the\nState of Illinois, excluding the conflicts-of-laws principles thereof. Each party hereto consents to the jurisdiction of, and venue in, any federal or state\ncourt of competent jurisdiction located in the City of Chicago.\n(b) Entire Agreement. This Agreement and any other agreement or document delivered in connection with this Agreement, including the\nEmployment Agreement and the Restricted Shares Agreement, dated as of the date hereof, between the Company and the Executive, state the entire\nagreement and understanding of the parties on the subject matter of this Agreement, and supersede all previous agreements, arrangements,\ncommunications and understandings relating to that subject matter.\n(c) Counterparts. This Agreement may be signed in two or more counterparts, each of which shall be deemed an original, with the same\neffect as if all signatures were on the same document.\n3\n(d) Amendment; Wavier; etc. This Agreement, and each other agreement or document delivered in connection with this Agreement, may\nbe amended, modified, superseded or canceled, and any of the terms thereof may be waived, only by a written document signed by each party to this\nAgreement or, in the case of waiver, by the party or parties waiving compliance. The delay or failure of any party at any time or times to exercise any\nright or require the performance of any duty under this Agreement or any other agreement or document delivered in connection with this Agreement\nshall in no way affect the right of that party at a later time to exercise that right or enforce that duty or any other right or duty. No waiver by any\nparty of any condition or of any breach of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed or\nconstrued to be a further or continuing waiver of any such condition or breach or of the breach of any other term of this Agreement. A single or\npartial exercise of any right shall not preclude any other or further exercise of the same right or of any other right. The rights and remedies provided\nby this Agreement shall be cumulative and not exclusive of each other or of any other rights or remedies provided by law.\n(e) Severability. If any provision of this Agreement or any other agreement or document delivered in connection with this Agreement, if\nany, is partially or completely invalid or unenforceable in any jurisdiction, then that provision shall be ineffective in that jurisdiction to the extent of\nits invalidity or unenforceability, but the invalidity or unenforceability of that provision shall not affect the validity or enforceability of any other\nprovision of this Agreement, all of which shall be construed and enforced as if that invalid or unenforceable provision were omitted, nor shall the\ninvalidity or unenforceability of that provision in one jurisdiction affect its validity or enforceability in any other jurisdiction. The Company and the\nExecutive agree that the period of time and the geographical area described in Section 1 are reasonable in view of the nature of the business in which\nthe Company is engaged and proposes to be engaged, and the Executive’s understanding of his prospective future employment opportunities.\nHowever, if the time period or the geographical area, or both, described in Section 1 should be judged unreasonable in any judicial proceeding, then\nthe period of time shall be reduced by that number of months and the geographical area shall be reduced by elimination of that portion, or both, as\nare deemed unreasonable, so that the restriction covenant of Section 1 may be enforced during the longest period of time and in the fullest\ngeographical area as is adjudged to be reasonable.\n(f) Arbitration.\n(i) Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in\nChicago, Illinois in accordance with the commercial arbitration rules of the American Arbitration Association. Judgment upon the award\nrendered in the arbitration may be entered in any court having jurisdiction.\n(ii) Notwithstanding the clause (i) above, the Executive acknowledges and understands that the provisions of this Agreement are of\na special and unique nature, the loss of which cannot be accurately compensated for in damages by an action at law, and that the breach or\nthreatened breach of the provisions of this Agreement would cause the Company irreparable harm. In the event of a breach or threatened\nbreach by the Executive of the provisions of Section 1, the Company shall be entitled to seek to obtain a court-ordered injunction restraining\nthe Executive from the breach or threatened breach upon the terms and conditions as the court ordering the injunction may impose.\n4\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.\nFlorists’ Transworld Delivery Inc.\nBy:\nRobert L. Norton\nCEO and Chairman of the Board\n[Name of Executive]\n5
+79d27022b351e5ac875ebdfce2965d1b.pdf	effective_date jurisdiction party term	EX-10.20 2 jcg-ex1020_20150131101.htm EX-10.20\nExhibit 10.20\nNON-DISCLOSURE, NON-SOLICITATION, NON-COMPETITION AND DISPUTE RESOLUTION AGREEMENT\nIn consideration of your continued employment as SVP – Chief Accounting Officer with J. Crew Group, Inc. and its affiliates\n(collectively, the "Company") and for other good and valuable consideration, receipt of which is hereby acknowledged, effective as of January\n22, 2013, you and the Company agree as follows:\n1. Agreement Not to Disclose Confidential Information. In the course of your employment with or provision of services to the\nCompany, you have and will have acquired and have had access to confidential or proprietary information about the Company, including but not\nlimited to, trade secrets, methods, models, passwords, access to computer files, financial information and records, computer software programs,\nagreements and/or contracts between the Company and its vendors and suppliers, the Company’s merchandising, marketing and/or creative\npolicies, practices, concepts, strategies, and methods of operations, inventory, pricing and price change strategies, possible new product lines,\nfuture merchandise designs, patterns, fabrication or fit information, internal policies, pricing policies and procedures, cost estimates, employee\nlists, training manuals, financial or business projections, unannounced financial data such as sales, earnings or capital requirements, possible\nmergers, acquisitions or joint ventures and information about or received from vendors and other companies with which the Company does\nbusiness. The foregoing shall be collectively referred to as “Confidential Information.” You are aware that the Confidential Information is not\nreadily available to the public. You agree that during your employment or provision of services and for a period of three (3) years thereafter, you\nwill keep confidential and not disclose the Confidential Information to anyone or use it for your own benefit or for the benefit of others, except in\nperforming your duties as our employee or agent. You agree that this restriction shall apply whether or not any such information is marked\n“confidential.”\nAll memoranda, disks, files, notes, records or other documents, whether in electronic form or hard copy (collectively, the “material”)\ncompiled by you or made available to you during your employment (whether or not the material contains confidential information) are the\nproperty of the Company and shall be delivered to the Company on the termination of your employment or at any other time upon\nrequest. Except in connection with your employment, you agree that you will not make or retain copies or excerpts of the material.\n2. Agreement Not to Engage in Unfair Competition. You agree that your position with the Company requires and will continue to\nrequire the performance of services which are special, unique, extraordinary and of an intellectual and/or artistic character and places you in a\nposition of confidence and trust with the Company. You further acknowledge that the rendering of services to the Company necessarily requires\nthe disclosure of confidential information and trade secrets of the Company. You agree that in the course of your employment with or rendering\nof services to the Company, you will develop a personal acquaintanceship and relationship with the vendors and other business associates of the\nCompany and knowledge of their affairs and requirements. Consequently, you agree that it is reasonable and necessary for the protection of the\ngoodwill and business of the Company that you make the covenants contained herein. Accordingly, you agree that:\n(a) while you are in the Company’s employ and for the period of six months after the termination of your employment, for any\nreason whatsoever, you shall not directly or indirectly, except on behalf of the Company, render services to or accept employment, either directly\nas an employee or owner, or indirectly, as a paid or unpaid consultant or independent contractor of any entity identified on Schedule A hereto (as\nmay be updated by the Company and communicated to you from time to time); and\n(b) while you are in the Company’s employ and for the period of twelve months after the termination of your employment, for any\nreason whatsoever, you shall not directly or indirectly, except on behalf of the Company recruit, hire, solicit, or employ as an employee or retain\nas a consultant any person who is then or at any time during the preceding twelve months was an employee of or consultant to the Company, or\npersuade or attempt to persuade any employee of or consultant to the Company to leave the employ of the Company or to become employed as\nan employee or retained as a consultant by anyone other than the Company.\n3. Termination Without Cause. Should your employment be (a) terminated by the Company without “Cause,” as defined below; and (b)\nthe Company does not consent at your written request to waive any of the post-employment restrictions contained in Section 2(a) above, and (c)\nyou execute and deliver to Company an irrevocable Separation Agreement and Release, within 60 days after your termination of employment\n(and any payment that constitutes non-qualified deferred compensation under Section 409A of the Internal Revenue Code of 1986, as amended\nand any regulations thereunder (the “Code”) that otherwise would be made within such 60-day period pursuant to this paragraph shall be paid at\nthe expiration of such 60-day period), in a form acceptable to the Company, the Company will (i) pay you a lump sum amount equal to the\nproduct of (x) the annual bonus, if any, that you would have earned based on the actual achievement of the applicable performance objectives in\nthe fiscal year which includes the date of your termination of employment had your employment not been terminated and (y) a fraction, the\nnumerator of which is the number of days in the fiscal year that includes the date of your termination through the date of such termination and\nthe denominator of which is 365, payable when bonuses are generally paid to employees of the Company, but in no event later than the 15th day\nof the third month following the end of the year with respect to which such bonus was earned; (ii) continue to pay your then-current base salary,\nless all\napplicable deductions, according to the company’s normal payroll practices for six (6) months immediately following your last date of\nemployment (“Termination Date”) (collectively, the “Salary Continuation Payments”); and (iii) reimburse you for out-of-pocket COBRA\npayments paid by you to continue your group health benefits for such six-month period, provided you submit relevant supporting documentation to\nthe company evidencing such payments. Notwithstanding anything herein to the contrary, however, your right to receive the foregoing payments\nshall terminate effective immediately and be of no force and effect upon the date that you become employed or are retained by another entity as\nan employee, consultant or otherwise, with or without compensation, and you agree to notify the Executive Vice-President of Human Resources\nin writing prior to the effective date of any such employment. If you fail to so notify the Executive Vice-President of Human Resources, (a) you\nwill forfeit your right to receive the payments described above (to the extent the payments were not theretofore paid) and (b) the company shall\nbe entitled to recover any payments already made to you or on your behalf.\nNotwithstanding the foregoing, in the event you are a “specified employee” (within the meaning of Section 409A(2)(B) of the Internal\nRevenue Code of 1986, as amended (the “Code”)) on the Termination Date and the Salary Continuation Payments to be paid to you within the\nfirst six months following such date (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A)\n(the “Limit”), then: (i) any portion of the Salary Continuation Payments that is payable during the Initial Payment Period that does not exceed the\nLimit shall be paid at the times set forth above; (ii) any portion of the Salary Continuation Payments that is a “short-term deferral” within the\nmeaning of Treas. Regs. Section 1.409A-1(b)(4)(i) shall be paid at the times set forth above; (iii) any portion of the Salary Continuation\nPayments that exceeds the Limit and is not a “short-term deferral” (and would have been payable during the Initial Payment Period but for the\nLimit) shall be paid on the first business day of the first calendar month that begins after the six-month anniversary of the Termination Date or, if\nearlier, on the date of your death; and (iv) any portion of the Salary Continuation Payments that is payable after the Initial Payment Period shall\nbe paid at the times set forth above. It is intended that each installment, if any, of the payments and benefits, if any, provided to you under this\nSection 3 shall be treated as a separate “payment” for purposes of Section 409A of the Code.\n“Cause” shall mean gross incompetence; failure to comply with the company’s policies including, but not limited to, those contained in the\ncompany’s Associate Handbook or Code of Ethics and Business Practices; indictment, conviction or admission of any crime involving\ndishonesty or moral turpitude; falsification of employment applications, records, or any work product for the Company; participation in any act\nof misconduct, insubordination or fraud against the company; use of alcohol or drugs which interferes with your performance of your duties or\ncompromises the integrity or reputation of the company; and unauthorized absence from work other than as a result of disability. No payment\nwill be required if the Company elects in its sole discretion to waive the post-termination restrictions on your employment contained in Section\n2(a) herein or if the conditions set forth in this Section 3 are otherwise not met.\n4. Termination With Cause or Resignation of Employment. If the Company terminates your employment and such termination is for\n"Cause," as defined above, or if you resign your employment for any reason, then the Company shall pay you all wages due through the\nTermination Date. In the event of termination for Cause or your resignation, the Company will not pay any severance or Salary Continuation\nPayments, and the restrictions contained in Sections 1 and 2 above will remain in full force and effect unless waived by the Company.\n5. Term. The term of this agreement shall be three (3) years, beginning on the date signed by you, as set forth below, and terminating on\nthe third anniversary of such date; provided however, that it shall automatically renew for further terms of one (1) year each upon the same terms\nand conditions herein, unless the Company provides written notice of non-renewal to you at least 30 days prior to the expiration of the initial\nterm or any renewal term.\nNotwithstanding the foregoing, in the event that your employment terminates prior to the expiration of any term, you shall remain subject\nto the post-termination restrictions contained in Sections 1 and 2 hereof and Section 6 hereof and shall be entitled to the severance payment\ncontained in Section 3 hereof provided that the terms and conditions applicable thereto have been satisfied.\n6. Dispute Resolution and Arbitration\n(a) Any and all justiciable controversies, claims or disputes that you may have against the Company and/or the Company may have against\nyou arising out of, relating to, or resulting from your employment with the Company, or the separation of your employment with the Company,\nincluding claims arising out of or related to this Agreement, shall be subject to mandatory arbitration (“Mandatory Arbitration”) as set forth\nherein. The mutual obligations by the Company and you to arbitrate differences provide mutual consideration for this Mandatory Arbitration\nprovision. Prior to commencing arbitration, if any such matter cannot be settled through negotiation, then the parties agree first to try in good\nfaith to settle the dispute by mediation through a mediator selected by the mutual agreement of both parties. If any such matters cannot be\nresolved by mediation within 30 days of the Company or you requesting mediation (or such longer period as to which you and the Company\nagree in writing), they shall be finally resolved by final and binding arbitration. The parties shall select a neutral arbitrator and/or arbitration\nsponsoring organization by mutual agreement. If the parties are not able to mutually agree to an arbitrator and/or arbitration sponsoring\norganization, the arbitration will be held under the auspices of the American Arbitration Association (“AAA”), and except as otherwise provided\nin this Agreement, shall be in\n2\naccordance with the then current Employment Arbitration Rules of the AAA, which may be found at www.adr.org or by using an internet search\nengine to locate “AAA Employment Arbitration Rules”). The arbitrator, and not any federal, state or local court or agency, shall have the\nexclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Mandatory Arbitration\nprovision. Subject to remedies to which a party to the arbitration may be entitled under applicable law, each party shall pay the fees of its own\nattorneys, the expenses of its witnesses and all other expenses connected with presenting its case. Other costs of the arbitration, including the\ncost of any record or transcripts of the arbitration, administrative fees, the fee of the arbitrator, and all other fees and costs, shall be borne by the\nCompany. All arbitral awards shall be final and binding, and the arbitration will be conducted in the City of New York, New York, in accordance\nwith the Federal Arbitration Act (9 U.S .C . §§ 1 et seq.) . A judgment of a court of competent jurisdiction shall be entered upon the award made\npursuant to the arbitration.\n(b) You agree that any actual or threatened breach by you of the covenants set forth in Sections 1 and 2 of this agreement would result in\nirreparable harm to the Company for which monetary damages alone would be an insufficient remedy. Thus, without limiting Section 6 (a)\nherein, either party may pursue temporary and/or preliminary injunctive relief in a court of competent jurisdiction for specific performance of the\nrestrictions in Sections 1 and 2 of this Agreement, tortious interference with prospective employment and/or the protection of confidential\ninformation and/or trade secrets, prevention of unfair competition, or enforcement of post-employment contractual restrictions or rights related to\nsame; provided, however, that all issues of final relief shall continue to be decided through arbitration, and the pursuit of the temporary and/or\npreliminary injunctive relief described herein shall not constitute a waiver of the parties’ agreement to arbitrate by any party. Both you and the\nCompany expressly waive the right to trial by jury.\n7. Severability. If any provision of this agreement, or any part thereof, is found to be invalid or unenforceable, the same shall not affect\nthe remaining provisions, which shall be given full effect, without regard to the invalid portions. Moreover, if any one or more of the provisions\ncontained in this agreement shall be held to be excessively broad as to duration, scope, activity or subject, such provisions shall be construed by\nlimiting and reducing them so as to be enforceable to the maximum extent with applicable law.\n8. At-Will Employment. This agreement is limited to the foregoing terms and shall not be construed to create any relationship between\nyou and the Company other than at-will employment for all purposes. This agreement supersedes any and all prior agreements concerning the\nsubject matter hereof, and any severance amounts or obligations of the Company to you referenced herein shall be in lieu of, and not in addition\nto, any such amounts or obligations in prior agreements.\n9. Governing Law. Subject to the applicability of the Federal Arbitration Act as stated in Section 6 of this agreement, all other terms of\nthis agreement and all other rights and obligations of the parties thereto shall be interpreted and governed by the laws of the state of New York.\n10. Section 409A of the Code. If any provision of this agreement (or any award of compensation or benefits provided under this\nagreement) would cause you to incur any additional tax or interest under Section 409A of the Code, the Company and you shall reasonably\ncooperate to reform such provision to comply with 409A and the Company agrees to maintain, to the maximum extent practicable without\nviolating 409A of the Code, the original intent and economic benefit to you of the applicable provision; provided that nothing herein shall require\nthe Company to provide you with any gross-up for any tax, interest or penalty incurred by you under Section 409A of the Code.\nAGREED TO AND ACCEPTED\nJ. Crew Group, Inc.\nSignature: /s/ Joan Durkin\nSignature: /s/ Lynda Markoe\nName:\nJoan Durkin\nName:\nLynda Markoe\nTitle:\nEVP – Human Resources\nDate:\nFebruary 18, 2013\nDate:\nFebruary 20, 2013\n3\nSCHEDULE A TO NON-DISCLOSURE,\nNON-SOLICITATION AND NON-COMPETITION AGREEMENT\nUnless waived in writing by the Company, the post-termination restrictions on employment contained in Section 2(a) above shall apply to\nemployment with any entity doing business under the names set forth below, as well as their parent, subsidiary, and affiliate companies or joint\nventure partners, in the United States, Canada, the United Kingdom, Hong Kong, The People’s Republic of China and any other countries or\nterritories where the Company conducts or has material plans to conduct business as of the Termination Date:\nAbercrombie & Fitch\nAeropostale, Inc.\nAmerican Eagle Outfitters, Inc.\nANN, Inc.\nBrooks Brothers Group, Inc.\nC.Wonder, LLC\nCoach, Inc.\nFifth & Pacific Companies, Inc. (formerly Liz Claiborne, Inc.)\nGap, Inc.\nGiorgio Armani S.p .A.\nLimited Brands, Inc.\nLVMH Moet Hennessey – Louis Vuitton SA\nMichael Kors, Inc.\nRalph Lauren Corporation\nTory Burch LLC\nUrban Outfitters, Inc.\nAny retail apparel start-up operated by one of the above companies and all brands or divisions operated by one of the above companies.\n4	EX-10.20 2 jcg-ex1020_20150131101.htm EX-10.20\nExhibit 10.20\nNON-DISCLOSURE, NON-SOLICITATION, NON-COMPETITION AND DISPUTE RESOLUTION AGREEMENT\nIn consideration of your continued employment as SVP — Chief Accounting Officer with J. Crew Group, Inc. and its affiliates\n(collectively, the "Company") and for other good and valuable consideration, receipt of which is hereby acknowledged, effective as of January\n22, 2013, you and the Company agree as follows:\n1. Agreement Not to Disclose Confidential Information. In the course of your employment with or provision of services to the\nCompany, you have and will have acquired and have had access to confidential or proprietary information about the Company, including but not\nlimited to, trade secrets, methods, models, passwords, access to computer files, financial information and records, computer software programs,\nagreements and/or contracts between the Company and its vendors and suppliers, the Company’s merchandising, marketing and/or creative\npolicies, practices, concepts, strategies, and methods of operations, inventory, pricing and price change strategies, possible new product lines,\nfuture merchandise designs, patterns, fabrication or fit information, internal policies, pricing policies and procedures, cost estimates, employee\nlists, training manuals, financial or business projections, unannounced financial data such as sales, earnings or capital requirements, possible\nmergers, acquisitions or joint ventures and information about or received from vendors and other companies with which the Company does\nbusiness. The foregoing shall be collectively referred to as “Confidential Information.” You are aware that the Confidential Information is not\nreadily available to the public. You agree that during your employment or provision of services and for a period of three (3) years thereafter, you\nwill keep confidential and not disclose the Confidential Information to anyone or use it for your own benefit or for the benefit of others, except in\nperforming your duties as our employee or agent. You agree that this restriction shall apply whether or not any such information is marked\n“confidential.”\nAll memoranda, disks, files, notes, records or other documents, whether in electronic form or hard copy (collectively, the “material™)\ncompiled by you or made available to you during your employment (whether or not the material contains confidential information) are the\nproperty of the Company and shall be delivered to the Company on the termination of your employment or at any other time upon\nrequest. Except in connection with your employment, you agree that you will not make or retain copies or excerpts of the material.\n2. Agreement Not to Engage in Unfair Competition. You agree that your position with the Company requires and will continue to\nrequire the performance of services which are special, unique, extraordinary and of an intellectual and/or artistic character and places you in a\nposition of confidence and trust with the Company. You further acknowledge that the rendering of services to the Company necessarily requires\nthe disclosure of confidential information and trade secrets of the Company. You agree that in the course of your employment with or rendering\nof services to the Company, you will develop a personal acquaintanceship and relationship with the vendors and other business associates of the\nCompany and knowledge of their affairs and requirements. Consequently, you agree that it is reasonable and necessary for the protection of the\ngoodwill and business of the Company that you make the covenants contained herein. Accordingly, you agree that:\n(a) while you are in the Company’s employ and for the period of six months after the termination of your employment, for any\nreason whatsoever, you shall not directly or indirectly, except on behalf of the Company, render services to or accept employment, either directly\nas an employee or owner, or indirectly, as a paid or unpaid consultant or independent contractor of any entity identified on Schedule A hereto (as\nmay be updated by the Company and communicated to you from time to time); and\n(b) while you are in the Company’s employ and for the period of twelve months after the termination of your employment, for any\nreason whatsoever, you shall not directly or indirectly, except on behalf of the Company recruit, hire, solicit, or employ as an employee or retain\nas a consultant any person who is then or at any time during the preceding twelve months was an employee of or consultant to the Company, or\npersuade or attempt to persuade any employee of or consultant to the Company to leave the employ of the Company or to become employed as\nan employee or retained as a consultant by anyone other than the Company.\n3. Termination Without Cause. Should your employment be (a) terminated by the Company without “Cause,” as defined below; and (b)\nthe Company does not consent at your written request to waive any of the post-employment restrictions contained in Section 2(a) above, and (c)\nyou execute and deliver to Company an irrevocable Separation Agreement and Release, within 60 days after your termination of employment\n(and any payment that constitutes non-qualified deferred compensation under Section 409A of the Internal Revenue Code of 1986, as amended\nand any regulations thereunder (the “Code”) that otherwise would be made within such 60-day period pursuant to this paragraph shall be paid at\nthe expiration of such 60-day period), in a form acceptable to the Company, the Company will (i) pay you a lump sum amount equal to the\nproduct of (x) the annual bonus, if any, that you would have earned based on the actual achievement of the applicable performance objectives in\nthe fiscal year which includes the date of your termination of employment had your employment not been terminated and (y) a fraction, the\nnumerator of which is the number of days in the fiscal year that includes the date of your termination through the date of such termination and\nthe denominator of which is 365, payable when bonuses are generally paid to employees of the Company, but in no event later than the 15th day\nof the third month following the end of the year with respect to which such bonus was earned; (ii) continue to pay your then-current base salary,\nless all\napplicable deductions, according to the company’s normal payroll practices for six (6) months immediately following your last date of\nemployment (“Termination Date”) (collectively, the “Salary Continuation Payments”); and (iii) reimburse you for out-of-pocket COBRA\npayments paid by you to continue your group health benefits for such six-month period, provided you submit relevant supporting documentation to\nthe company evidencing such payments. Notwithstanding anything herein to the contrary, however, your right to receive the foregoing payments\nshall terminate effective immediately and be of no force and effect upon the date that you become employed or are retained by another entity as\nan employee, consultant or otherwise, with or without compensation, and you agree to notify the Executive Vice-President of Human Resources\nin writing prior to the effective date of any such employment. If you fail to so notify the Executive Vice-President of Human Resources, (a) you\nwill forfeit your right to receive the payments described above (to the extent the payments were not theretofore paid) and (b) the company shall\nbe entitled to recover any payments already made to you or on your behalf.\n \nNotwithstanding the foregoing, in the event you are a “specified employee” (within the meaning of Section 409A(2)(B) of the Internal\nRevenue Code of 1986, as amended (the “Code”)) on the Termination Date and the Salary Continuation Payments to be paid to you within the\nfirst six months following such date (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A)\n(the “Limit”), then: (i) any portion of the Salary Continuation Payments that is payable during the Initial Payment Period that does not exceed the\nLimit shall be paid at the times set forth above; (ii) any portion of the Salary Continuation Payments that is a “short-term deferral” within the\nmeaning of Treas. Regs. Section 1.409A-1(b)(4)(i) shall be paid at the times set forth above; (iii) any portion of the Salary Continuation\nPayments that exceeds the Limit and is not a “short-term deferral” (and would have been payable during the Initial Payment Period but for the\nLimit) shall be paid on the first business day of the first calendar month that begins after the six-month anniversary of the Termination Date or, if\nearlier, on the date of your death; and (iv) any portion of the Salary Continuation Payments that is payable after the Initial Payment Period shall\nbe paid at the times set forth above. It is intended that each installment, if any, of the payments and benefits, if any, provided to you under this\nSection 3 shall be treated as a separate “payment” for purposes of Section 409A of the Code.\n“Cause” shall mean gross incompetence; failure to comply with the company’s policies including, but not limited to, those contained in the\ncompany’s Associate Handbook or Code of Ethics and Business Practices; indictment, conviction or admission of any crime involving\ndishonesty or moral turpitude; falsification of employment applications, records, or any work product for the Company; participation in any act\nof misconduct, insubordination or fraud against the company; use of alcohol or drugs which interferes with your performance of your duties or\ncompromises the integrity or reputation of the company; and unauthorized absence from work other than as a result of disability. No payment\nwill be required if the Company elects in its sole discretion to waive the post-termination restrictions on your employment contained in Section\n2(a) herein or if the conditions set forth in this Section 3 are otherwise not met.\n4. Termination With Cause or Resignation of Employment. If the Company terminates your employment and such termination is for\n"Cause," as defined above, or if you resign your employment for any reason, then the Company shall pay you all wages due through the\nTermination Date. In the event of termination for Cause or your resignation, the Company will not pay any severance or Salary Continuation\nPayments, and the restrictions contained in Sections 1 and 2 above will remain in full force and effect unless waived by the Company.\n5. Term. The term of this agreement shall be three (3) years, beginning on the date signed by you, as set forth below, and terminating on\nthe third anniversary of such date; provided however, that it shall automatically renew for further terms of one (1) year each upon the same terms\nand conditions herein, unless the Company provides written notice of non-renewal to you at least 30 days prior to the expiration of the initial\nterm or any renewal term.\nNotwithstanding the foregoing, in the event that your employment terminates prior to the expiration of any term, you shall remain subject\nto the post-termination restrictions contained in Sections 1 and 2 hereof and Section 6 hereof and shall be entitled to the severance payment\ncontained in Section 3 hereof provided that the terms and conditions applicable thereto have been satisfied.\n6. Dispute Resolution and Arbitration\n(a) Any and all justiciable controversies, claims or disputes that you may have against the Company and/or the Company may have against\nyou arising out of, relating to, or resulting from your employment with the Company, or the separation of your employment with the Company,\nincluding claims arising out of or related to this Agreement, shall be subject to mandatory arbitration (“Mandatory Arbitration”) as set forth\nherein. The mutual obligations by the Company and you to arbitrate differences provide mutual consideration for this Mandatory Arbitration\nprovision. Prior to commencing arbitration, if any such matter cannot be settled through negotiation, then the parties agree first to try in good\nfaith to settle the dispute by mediation through a mediator selected by the mutual agreement of both parties. If any such matters cannot be\nresolved by mediation within 30 days of the Company or you requesting mediation (or such longer period as to which you and the Company\nagree in writing), they shall be finally resolved by final and binding arbitration. The parties shall select a neutral arbitrator and/or arbitration\nsponsoring organization by mutual agreement. If the parties are not able to mutually agree to an arbitrator and/or arbitration sponsoring\norganization, the arbitration will be held under the auspices of the American Arbitration Association (“AAA”), and except as otherwise provided\nin this Agreement, shall be in\naccordance with the then current Employment Arbitration Rules of the AAA, which may be found at www.adr.org or by using an internet search\nengine to locate “AAA Employment Arbitration Rules”). The arbitrator, and not any federal, state or local court or agency, shall have the\nexclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Mandatory Arbitration\nprovision. Subject to remedies to which a party to the arbitration may be entitled under applicable law, each party shall pay the fees of its own\nattorneys, the expenses of its witnesses and all other expenses connected with presenting its case. Other costs of the arbitration, including the\ncost of any record or transcripts of the arbitration, administrative fees, the fee of the arbitrator, and all other fees and costs, shall be borne by the\nCompany. All arbitral awards shall be final and binding, and the arbitration will be conducted in the City of New York, New York, in accordance\nwith the Federal Arbitration Act (9 U.S.C. 8§ 1 et seq.). A judgment of a court of competent jurisdiction shall be entered upon the award made\npursuant to the arbitration.\n(b) You agree that any actual or threatened breach by you of the covenants set forth in Sections 1 and 2 of this agreement would result in\nirreparable harm to the Company for which monetary damages alone would be an insufficient remedy. Thus, without limiting Section 6 (a)\nherein, either party may pursue temporary and/or preliminary injunctive relief in a court of competent jurisdiction for specific performance of the\nrestrictions in Sections 1 and 2 of this Agreement, tortious interference with prospective employment and/or the protection of confidential\ninformation and/or trade secrets, prevention of unfair competition, or enforcement of post-employment contractual restrictions or rights related to\nsame; provided, however, that all issues of final relief shall continue to be decided through arbitration, and the pursuit of the temporary and/or\npreliminary injunctive relief described herein shall not constitute a waiver of the parties’ agreement to arbitrate by any party. Both you and the\nCompany expressly waive the right to trial by jury.\n7. Severability. If any provision of this agreement, or any part thereof, is found to be invalid or unenforceable, the same shall not affect\nthe remaining provisions, which shall be given full effect, without regard to the invalid portions. Moreover, if any one or more of the provisions\ncontained in this agreement shall be held to be excessively broad as to duration, scope, activity or subject, such provisions shall be construed by\nlimiting and reducing them so as to be enforceable to the maximum extent with applicable law.\n8. At-Will Employment. This agreement is limited to the foregoing terms and shall not be construed to create any relationship between\nyou and the Company other than at-will employment for all purposes. This agreement supersedes any and all prior agreements concerning the\nsubject matter hereof, and any severance amounts or obligations of the Company to you referenced herein shall be in lieu of, and not in addition\nto, any such amounts or obligations in prior agreements.\n9. Governing Law. Subject to the applicability of the Federal Arbitration Act as stated in Section 6 of this agreement, all other terms of\nthis agreement and all other rights and obligations of the parties thereto shall be interpreted and governed by the laws of the state of New York.\n10. Section 409A of the Code. If any provision of this agreement (or any award of compensation or benefits provided under this\nagreement) would cause you to incur any additional tax or interest under Section 409A of the Code, the Company and you shall reasonably\ncooperate to reform such provision to comply with 409A and the Company agrees to maintain, to the maximum extent practicable without\nviolating 409A of the Code, the original intent and economic benefit to you of the applicable provision; provided that nothing herein shall require\nthe Company to provide you with any gross-up for any tax, interest or penalty incurred by you under Section 409A of the Code.\nAGREED TO AND ACCEPTED J. Crew Group, Inc.\nSignature: /s/ Joan Durkin Signature: /s/ Lynda Markoe\nName: Joan Durkin Name: Lynda Markoe\nTitle: EVP — Human Resources\nDate: February 18, 2013 Date: February 20, 2013\nSCHEDULE A TO NON-DISCLOSURE,\nNON-SOLICITATION AND NON-COMPETITION AGREEMENT\nUnless waived in writing by the Company, the post-termination restrictions on employment contained in Section 2(a) above shall apply to\nemployment with any entity doing business under the names set forth below, as well as their parent, subsidiary, and affiliate companies or joint\nventure partners, in the United States, Canada, the United Kingdom, Hong Kong, The People’s Republic of China and any other countries or\nterritories where the Company conducts or has material plans to conduct business as of the Termination Date:\nAbercrombie & Fitch\nAeropostale, Inc.\nAmerican Eagle Outfitters, Inc.\nANN, Inc.\nBrooks Brothers Group, Inc.\nC.Wonder, LLC\nCoach, Inc.\nFifth & Pacific Companies, Inc. (formerly Liz Claiborne, Inc.)\nGap, Inc.\nGiorgio Armani S.p.A.\nLimited Brands, Inc.\nLVMH Moet Hennessey — Louis Vuitton SA\nMichael Kors, Inc.\nRalph Lauren Corporation\nTory Burch LLC\nUrban Outfitters, Inc.\nAny retail apparel start-up operated by one of the above companies and all brands or divisions operated by one of the above companies.\n4	EX-10.20 2 jcg-ex1020_20150131101.htm EX-10.20\nExhibit 10.20\nNON-DISCLOSURE, NON-SOLICITATION, NON-COMPETITION AND DISPUTE RESOLUTION AGREEMENT\nIn consideration of your continued employment as SVP Chief Accounting Officer with J. Crew Group, Inc. and its affiliates\n(collectively, the "Company") and for other good and valuable consideration, receipt of which is hereby acknowledged, effective as of January\n22, 2013, you and the Company agree as follows:\n1. Agreement Not to Disclose Confidential Information. In the course of your employment with or provision of services to the\nCompany, you have and will have acquired and have had access to confidential or proprietary information about the Company, including but not\nlimited to, trade secrets, methods, models, passwords, access to computer files, financial information and records, computer software programs,\nagreements and/or contracts between the Company and its vendors and suppliers, the Company's merchandising, marketing and/or creative\npolicies, practices, concepts, strategies, and methods of operations, inventory, pricing and price change strategies, possible new product lines,\nfuture merchandise designs, patterns, fabrication or fit information, internal policies, pricing policies and procedures, cost estimates, employee\nlists, training manuals, financial or business projections, unannounced financial data such as sales, earnings or capital requirements, possible\nmergers, acquisitions or joint ventures and information about or received from vendors and other companies with which the Company does\nbusiness. The foregoing shall be collectively referred to as "Confidential Information." You are aware that the Confidential Information is not\nreadily available to the public. You agree that during your employment or provision of services and for a period of three (3) years thereafter,\nyou\nwill keep confidential and not disclose the Confidential Information to anyone or use it for your own benefit or for the benefit of others, except\nin\nperforming your duties as our employee or agent. You agree that this restriction shall apply whether or not any such information is marked\n"confidential."\nAll memoranda, disks, files, notes, records or other documents, whether in electronic form or hard copy (collectively, the "material")\ncompiled\nby\nyou\nor\nmade\navailable\nto\nyou\nduring\nyour\nemployment\n(whether\nor\nnot\nthe\nmaterial\ncontains\nconfidential\ninformation)\nare\nthe\nproperty of the Company and shall be delivered to the Company on the termination of your employment or at any other time upon\nrequest. Except in connection with your employment, you agree that you will not make or retain copies or excerpts of the material.\n2. Agreement Not to Engage in Unfair Competition. You agree that your position with the Company requires and will continue to\nrequire the performance of services which are special, unique, extraordinary and of an intellectual and/or artistic character and places you in a\nposition of confidence and trust with the Company. You further acknowledge that the rendering of services to the Company necessarily requires\nthe disclosure of confidential information and trade secrets of the Company. You agree that in the course of your employment with or rendering\nof services to the Company, you will develop a personal acquaintanceship and relationship with the vendors and other business associates of the\nCompany and knowledge of their affairs and requirements. Consequently, you agree that it is reasonable and necessary for the protection of the\ngoodwill and business of the Company that you make the covenants contained herein. Accordingly, you agree that:\n(a) while you are in the Company's employ and for the period of six months after the termination of your employment, for any\nreason whatsoever, you shall not directly or indirectly, except on behalf of the Company, render services to or accept employment, either directly\nas an employee or owner, or indirectly, as a paid or unpaid consultant or independent contractor of any entity identified on Schedule A hereto (as\nmay be updated by the Company and communicated to you from time to time); and\n(b) while you are in the Company's employ and for the period of twelve months after the termination of your employment, for any\nreason whatsoever, you shall not directly or indirectly, except on behalf of the Company recruit, hire, solicit, or employ as an employee or retain\nas a consultant any person who is then or at any time during the preceding twelve months was an employee of or consultant to the Company, or\npersuade or attempt to persuade any employee of or consultant to the Company to leave the employ of the Company or to become employed as\nan employee or retained as a consultant by anyone other than the Company.\n3. Termination Without Cause. Should your employment be (a) terminated by the Company without "Cause," as defined below; and (b)\nthe Company does not consent at your written request to waive any of the post-employment restrictions contained in Section 2(a) above,\nand\n(c)\nyou execute and deliver to Company an irrevocable Separation Agreement and Release, within 60 days after your termination of employment\n(and any payment that constitutes non-qualified deferred compensation under Section 409A of the Internal Revenue Code of 1986, as amended\nand any regulations thereunder (the "Code") that otherwise would be made within such 60-day period pursuant to this paragraph shall\nbe\npaid\nat\nthe expiration of such 60-day period), in a form acceptable to the Company, the Company will (i) pay you a lump sum amount equal to the\nproduct of (x) the annual bonus, if any, that you would have earned based on the actual achievement of the applicable performance objectives in\nthe\nfiscal\nyear\nwhich\nincludes\nthe\ndate\nof\nyour\ntermination\nof\nemployment\nhad\nyour\nemployment\nnot\nbeen\nterminated\nand\n(y)\na\nfraction,\nthe\nnumerator of which is the number of days in the fiscal year that includes the date of your termination through the date of such termination and\nthe denominator of which is 365, payable when bonuses are generally paid to employees of the Company, but in no event later than the 15th day\nof the third month following the end of the year with respect to which such bonus was earned; (ii) continue to pay your then-current base salary,\nless all\napplicable deductions, according to the company's normal payroll practices for six (6) months immediately following your last date\nof\nemployment ("Termination Date") (collectively, the "Salary Continuation Payments"); and (iii) reimburse you for out-of-pocket COBRA\npayments paid by you to continue your group health benefits for such six-month period, provided you submit relevant supporting documentation to\nthe company evidencing such payments. Notwithstanding anything herein to the contrary, however, your right to receive the foregoing payments\nshall terminate effective immediately and be of no force and effect upon the date that you become employed or are retained by another entity as\nan\nemployee, consultant or otherwise, with or without compensation, and you agree to notify the Executive Vice-President of Human Resources\nin\nwriting\nprior\nto\nthe\neffective\ndate\nof\nany\nsuch\nemployment.\nIf\nyou\nfail\nto\nso\nnotify\nthe\nExecutive\nVice-President\nof\nHuman\nResources,\n(a)\nyou\nwill forfeit your right to receive the payments described above (to the extent the payments were not theretofore paid) and (b) the company shall\nbe entitled to recover any payments already made to you or on your behalf.\nNotwithstanding the foregoing, in the event you are a "specified employee" (within the meaning of Section 409A(2)(B) of the Internal\nRevenue Code of 1986, as amended (the "Code")) on the Termination Date and the Salary Continuation Payments to be paid to you within the\nfirst six months following such date (the "Initia Payment Period") exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(i1i)(A)\n(the "Limit"), then: (i) any portion of the Salary Continuation Payments that is payable during the Initial Payment Period that does not exceed the\nLimit shall be paid at the times set forth above; (ii) any portion of the Salary Continuation Payments that is a "short-term deferral" within the\nmeaning\nof\nTreas.\nRegs.\nSection\n1.409A-1(b)(4)(i\nshall\nbe\npaid\nat\nthe\ntimes\nset\nforth\nabove;\n(iii)\nany\nportion\nof\nthe\nSalary\nContinuation\nPayments that exceeds the Limit and is not a "short-term deferral" (and would have been payable during the Initial Payment Period but for the\nLimit) shall be paid on the first business day of the first calendar month that begins after the six-month anniversary of the Termination Date or,\nif\nearlier, on the date of your death; and (iv) any portion of the Salary Continuation Payments that is payable after the Initial Payment Period shall\nbe paid at the times set forth above. It is intended that each installment, if any, of the payments and benefits, if any, provided to you under this\nSection 3 shall be treated as a separate "payment" for purposes of Section 409A of the Code.\n"Cause" shall mean gross incompetence; failure to comply with the company's policies including, but not limited to, those contained in the\ncompany's Associate Handbook or Code of Ethics and Business Practices; indictment, conviction or admission of any crime involving\ndishonesty or moral turpitude; falsification of employment applications, records, or any work product for the Company; participation in any\nact\nof misconduct, insubordination or fraud against the company; use of alcohol or drugs which interferes with your performance of your duties or\ncompromises the integrity or reputation of the company; and unauthorized absence from work other than as a result of disability. No payment\nwill be required if the Company elects in its sole discretion to waive the post-termination restrictions on your employment contained in Section\n2(a) herein or if the conditions set forth in this Section 3 are otherwise not met.\n4. Termination With Cause or Resignation of Employment. If the Company terminates your employment and such termination is for\n"Cause," as defined above, or if you resign your employment for any reason, then the Company shall pay you all wages due through the\nTermination Date. In the event of termination for Cause or your resignation, the Company will not pay any severance or Salary Continuation\nPayments, and the restrictions contained in Sections 1 and 2 above will remain in full force and effect unless waived by the Company.\n5. Term. The term of this agreement shall be three (3) years, beginning on the date signed by you, as set forth below, and terminating on\nthe third anniversary of such date; provided however, that it shall automatically renew for further terms of one (1) year each upon the same terms\nand conditions herein, unless the Company provides written notice of non-renewal to you at least 30 days prior to the expiration of the initia\nterm or any renewal term.\nNotwithstanding the foregoing, in the event that your employment terminates prior to the expiration of any term, you shall remain subject\nto the post-termination restrictions contained in Sections 1 and 2 hereof and Section 6 hereof and shall be entitled to the severance payment\ncontained in Section 3 hereof provided that the terms and conditions applicable thereto have been satisfied.\n6. Dispute Resolution and Arbitration\n(a) Any and all justiciable controversies, claims or disputes that you may have against the Company and/or the Company may have against\nyou arising out of, relating to, or resulting from your employment with the Company, or the separation of your employment with the Company,\nincluding claims arising out of or related to this Agreement, shall be subject to mandatory arbitration ("Mandatory Arbitration") as set forth\nherein. The mutual obligations by the Company and you to arbitrate differences provide mutual consideration for this Mandatory Arbitration\nprovision. Prior to commencing arbitration, if any such matter cannot be settled through negotiation, then the parties agree first to try in good\nfaith to settle the dispute by mediation through a mediator selected by the mutual agreement of both parties. If any such matters cannot be\nresolved by mediation within 30 days of the Company or you requesting mediation (or such longer period as to which you and the Company\nagree in writing), they shall be finally resolved by final and binding arbitration. The parties shall select a neutral arbitrator and/or arbitration\nsponsoring organization by mutual agreement. If the parties are not able to mutually agree to an arbitrator and/or arbitration sponsoring\norganization the arbitration will be held under the auspices of the American Arbitration Association ("AAA"), and except as otherwise provided\nin this Agreement, shall be in\n2\naccordance with the then current Employment Arbitration Rules of the AAA, which may be found at www.adr.org or by using an internet search\nengine\nto\nlocate\n"AAA\nEmployment\nArbitration\nRules").\nThe\narbitrator,\nand\nnot\nany\nfederal,\nstate\nor\nlocal\ncourt\nor\nagency,\nshall\nhave\nthe\nexclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Mandatory Arbitration\nprovision. Subject to remedies to which a party to the arbitration may be entitled under applicable law, each party shall pay the fees of its own\nattorneys, the expenses of its witnesses and all other expenses connected with presenting its case. Other costs of the arbitration, including the\ncost of any record or transcripts of the arbitration, administrative fees, the fee of the arbitrator, and all other fees and costs, shall be borne by the\nCompany. All arbitral awards shall be final and binding, and the arbitration will be conducted in the City of New York, New York, in accordance\nwith the Federal Arbitration Act (9 U.S.C. 88 1 et seq.). A judgment of a court of competent jurisdiction shall be entered upon the award made\npursuant to the arbitration.\n(b) You agree that any actual or threatened breach by you of the covenants set forth in Sections 1 and 2 of this agreement would result in\nirreparable harm to the Company for which monetary damages alone would be an insufficient remedy. Thus, without limiting Section 6 (a)\nherein, either party may pursue temporary and/or preliminary injunctive relief in a court of competent jurisdiction for specific performance of the\nrestrictions in Sections 1 and 2 of this Agreement, tortious interference with prospective employment and/or the protection of confidential\ninformation and/or trade secrets, prevention of unfair competition, or enforcement of post-employment contractual restrictions or rights related\nto\nsame; provided, however, that all issues of final relief shall continue to be decided through arbitration, and the pursuit of the temporary and/or\npreliminary injunctive relief described herein shall not constitute a waiver of the parties' agreement to arbitrate by any party. Both you and the\nCompany expressly waive the right to trial by jury.\n7. Severability. If any provision of this agreement, or any part thereof, is found to be invalid or unenforceable, the same shall not affect\nthe remaining provisions, which shall be given full effect, without regard to the invalid portions. Moreover, if any one or more of the provisions\ncontained in this agreement shall be held to be excessively broad as to duration, scope, activity or subject, such provisions shall be construed by\nlimiting and reducing them so as to be enforceable to the maximum extent with applicable law.\n8. At-Will Employment. This agreement is limited to the foregoing terms and shall not be construed to create any relationship between\nyou and the Company other than at-will employment for all purposes. This agreement supersedes any and all prior agreements concerning the\nsubject matter hereof, and any severance amounts or obligations of the Company to you referenced herein shall be in lieu of, and not in addition\nto, any such amounts or obligations in prior agreements.\n9.\nGoverning Law. Subject to the applicability of the Federal Arbitration Act as stated in Section 6 of this agreement, all other terms of\nthis agreement and all other rights and obligations of the parties thereto shall be interpreted and governed by the laws of the state of New York.\n10. Section 409A of the Code. If any provision of this agreement (or any award of compensation or benefits provided under this\nagreement) would cause you to incur any additional tax or interest under Section 409A of the Code, the Company and you shall reasonably\ncooperate to reform such provision to comply with 409A and the Company agrees to maintain, to the maximum extent practicable without\nviolating 409A of the Code, the original intent and economic benefit to you of the applicable provision; provided that nothing herein shall require\nthe Company to provide you with any gross-up for any tax, interest or penalty incurred by you under Section 409A of the Code.\nAGREED TO AND ACCEPTED\nJ. Crew Group, Inc.\nSignature: /s/ Joan Durkin\nSignature: /s/ Lynda Markoe\nName:\nJoan Durkin\nName:\nLynda Markoe\nTitle:\nEVP Human Resources\nDate:\nFebruary 18, 2013\nDate:\nFebruary 20, 2013\n3\nSCHEDULE A TO NON-DISCLOSURE,\nNON-SOLICITATION AND NON-COMPETITION AGREEMENT\nUnless waived in writing by the Company, the post-termination restrictions on employment contained in Section 2(a) above shall apply to\nemployment with any entity doing business under the names set forth below, as well as their parent, subsidiary, and affiliate companies or joint\nventure partners, in the United States, Canada, the United Kingdom, Hong Kong, The People's Republic of China and any other countries or\nterritories where the Company conducts or has material plans to conduct business as of the Termination Date:\nAbercrombie & Fitch\nAeropostale, Inc.\nAmerican Eagle Outfitters, Inc.\nANN, Inc.\nBrooks Brothers Group, Inc.\nC.Wonder, LLC\nCoach, Inc.\nFifth & Pacific Companies, Inc. (formerly Liz Claiborne, Inc.)\nGap, Inc.\nGiorgio Armani S.p.A.\nLimited Brands, Inc.\nLVMH Moet Hennessey - Louis Vuitton SA\nMichael Kors, Inc.\nRalph Lauren Corporation\nTory Burch LLC\nUrban Outfitters, Inc.\nAny retail apparel start-up operated by one of the above companies and all brands or divisions operated by one of the above companies.\n4	EX-10.20 2 jcg-ex1020_20150131101.htm EX-10.20\nExhibit 10.20\nNON-DISCLOSURE, NON-SOLICITATION, NON-COMPETITION AND DISPUTE RESOLUTION AGREEMENT\nIn consideration of your continued employment as SVP – Chief Accounting Officer with J. Crew Group, Inc. and its affiliates\n(collectively, the "Company") and for other good and valuable consideration, receipt of which is hereby acknowledged, effective as of January\n22, 2013, you and the Company agree as follows:\n1. Agreement Not to Disclose Confidential Information. In the course of your employment with or provision of services to the\nCompany, you have and will have acquired and have had access to confidential or proprietary information about the Company, including but not\nlimited to, trade secrets, methods, models, passwords, access to computer files, financial information and records, computer software programs,\nagreements and/or contracts between the Company and its vendors and suppliers, the Company’s merchandising, marketing and/or creative\npolicies, practices, concepts, strategies, and methods of operations, inventory, pricing and price change strategies, possible new product lines,\nfuture merchandise designs, patterns, fabrication or fit information, internal policies, pricing policies and procedures, cost estimates, employee\nlists, training manuals, financial or business projections, unannounced financial data such as sales, earnings or capital requirements, possible\nmergers, acquisitions or joint ventures and information about or received from vendors and other companies with which the Company does\nbusiness. The foregoing shall be collectively referred to as “Confidential Information.” You are aware that the Confidential Information is not\nreadily available to the public. You agree that during your employment or provision of services and for a period of three (3) years thereafter, you\nwill keep confidential and not disclose the Confidential Information to anyone or use it for your own benefit or for the benefit of others, except in\nperforming your duties as our employee or agent. You agree that this restriction shall apply whether or not any such information is marked\n“confidential.”\nAll memoranda, disks, files, notes, records or other documents, whether in electronic form or hard copy (collectively, the “material”)\ncompiled by you or made available to you during your employment (whether or not the material contains confidential information) are the\nproperty of the Company and shall be delivered to the Company on the termination of your employment or at any other time upon\nrequest. Except in connection with your employment, you agree that you will not make or retain copies or excerpts of the material.\n2. Agreement Not to Engage in Unfair Competition. You agree that your position with the Company requires and will continue to\nrequire the performance of services which are special, unique, extraordinary and of an intellectual and/or artistic character and places you in a\nposition of confidence and trust with the Company. You further acknowledge that the rendering of services to the Company necessarily requires\nthe disclosure of confidential information and trade secrets of the Company. You agree that in the course of your employment with or rendering\nof services to the Company, you will develop a personal acquaintanceship and relationship with the vendors and other business associates of the\nCompany and knowledge of their affairs and requirements. Consequently, you agree that it is reasonable and necessary for the protection of the\ngoodwill and business of the Company that you make the covenants contained herein. Accordingly, you agree that:\n(a) while you are in the Company’s employ and for the period of six months after the termination of your employment, for any\nreason whatsoever, you shall not directly or indirectly, except on behalf of the Company, render services to or accept employment, either directly\nas an employee or owner, or indirectly, as a paid or unpaid consultant or independent contractor of any entity identified on Schedule A hereto (as\nmay be updated by the Company and communicated to you from time to time); and\n(b) while you are in the Company’s employ and for the period of twelve months after the termination of your employment, for any\nreason whatsoever, you shall not directly or indirectly, except on behalf of the Company recruit, hire, solicit, or employ as an employee or retain\nas a consultant any person who is then or at any time during the preceding twelve months was an employee of or consultant to the Company, or\npersuade or attempt to persuade any employee of or consultant to the Company to leave the employ of the Company or to become employed as\nan employee or retained as a consultant by anyone other than the Company.\n3. Termination Without Cause. Should your employment be (a) terminated by the Company without “Cause,” as defined below; and (b)\nthe Company does not consent at your written request to waive any of the post-employment restrictions contained in Section 2(a) above, and (c)\nyou execute and deliver to Company an irrevocable Separation Agreement and Release, within 60 days after your termination of employment\n(and any payment that constitutes non-qualified deferred compensation under Section 409A of the Internal Revenue Code of 1986, as amended\nand any regulations thereunder (the “Code”) that otherwise would be made within such 60-day period pursuant to this paragraph shall be paid at\nthe expiration of such 60-day period), in a form acceptable to the Company, the Company will (i) pay you a lump sum amount equal to the\nproduct of (x) the annual bonus, if any, that you would have earned based on the actual achievement of the applicable performance objectives in\nthe fiscal year which includes the date of your termination of employment had your employment not been terminated and (y) a fraction, the\nnumerator of which is the number of days in the fiscal year that includes the date of your termination through the date of such termination and\nthe denominator of which is 365, payable when bonuses are generally paid to employees of the Company, but in no event later than the 15th day\nof the third month following the end of the year with respect to which such bonus was earned; (ii) continue to pay your then-current base salary,\nless all\napplicable deductions, according to the company’s normal payroll practices for six (6) months immediately following your last date of\nemployment (“Termination Date”) (collectively, the “Salary Continuation Payments”); and (iii) reimburse you for out-of-pocket COBRA\npayments paid by you to continue your group health benefits for such six-month period, provided you submit relevant supporting documentation to\nthe company evidencing such payments. Notwithstanding anything herein to the contrary, however, your right to receive the foregoing payments\nshall terminate effective immediately and be of no force and effect upon the date that you become employed or are retained by another entity as\nan employee, consultant or otherwise, with or without compensation, and you agree to notify the Executive Vice-President of Human Resources\nin writing prior to the effective date of any such employment. If you fail to so notify the Executive Vice-President of Human Resources, (a) you\nwill forfeit your right to receive the payments described above (to the extent the payments were not theretofore paid) and (b) the company shall\nbe entitled to recover any payments already made to you or on your behalf.\nNotwithstanding the foregoing, in the event you are a “specified employee” (within the meaning of Section 409A(2)(B) of the Internal\nRevenue Code of 1986, as amended (the “Code”)) on the Termination Date and the Salary Continuation Payments to be paid to you within the\nfirst six months following such date (the “Initial Payment Period”) exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A)\n(the “Limit”), then: (i) any portion of the Salary Continuation Payments that is payable during the Initial Payment Period that does not exceed the\nLimit shall be paid at the times set forth above; (ii) any portion of the Salary Continuation Payments that is a “short-term deferral” within the\nmeaning of Treas. Regs. Section 1.409A-1(b)(4)(i) shall be paid at the times set forth above; (iii) any portion of the Salary Continuation\nPayments that exceeds the Limit and is not a “short-term deferral” (and would have been payable during the Initial Payment Period but for the\nLimit) shall be paid on the first business day of the first calendar month that begins after the six-month anniversary of the Termination Date or, if\nearlier, on the date of your death; and (iv) any portion of the Salary Continuation Payments that is payable after the Initial Payment Period shall\nbe paid at the times set forth above. It is intended that each installment, if any, of the payments and benefits, if any, provided to you under this\nSection 3 shall be treated as a separate “payment” for purposes of Section 409A of the Code.\n“Cause” shall mean gross incompetence; failure to comply with the company’s policies including, but not limited to, those contained in the\ncompany’s Associate Handbook or Code of Ethics and Business Practices; indictment, conviction or admission of any crime involving\ndishonesty or moral turpitude; falsification of employment applications, records, or any work product for the Company; participation in any act\nof misconduct, insubordination or fraud against the company; use of alcohol or drugs which interferes with your performance of your duties or\ncompromises the integrity or reputation of the company; and unauthorized absence from work other than as a result of disability. No payment\nwill be required if the Company elects in its sole discretion to waive the post-termination restrictions on your employment contained in Section\n2(a) herein or if the conditions set forth in this Section 3 are otherwise not met.\n4. Termination With Cause or Resignation of Employment. If the Company terminates your employment and such termination is for\n"Cause," as defined above, or if you resign your employment for any reason, then the Company shall pay you all wages due through the\nTermination Date. In the event of termination for Cause or your resignation, the Company will not pay any severance or Salary Continuation\nPayments, and the restrictions contained in Sections 1 and 2 above will remain in full force and effect unless waived by the Company.\n5. Term. The term of this agreement shall be three (3) years, beginning on the date signed by you, as set forth below, and terminating on\nthe third anniversary of such date; provided however, that it shall automatically renew for further terms of one (1) year each upon the same terms\nand conditions herein, unless the Company provides written notice of non-renewal to you at least 30 days prior to the expiration of the initial\nterm or any renewal term.\nNotwithstanding the foregoing, in the event that your employment terminates prior to the expiration of any term, you shall remain subject\nto the post-termination restrictions contained in Sections 1 and 2 hereof and Section 6 hereof and shall be entitled to the severance payment\ncontained in Section 3 hereof provided that the terms and conditions applicable thereto have been satisfied.\n6. Dispute Resolution and Arbitration\n(a) Any and all justiciable controversies, claims or disputes that you may have against the Company and/or the Company may have against\nyou arising out of, relating to, or resulting from your employment with the Company, or the separation of your employment with the Company,\nincluding claims arising out of or related to this Agreement, shall be subject to mandatory arbitration (“Mandatory Arbitration”) as set forth\nherein. The mutual obligations by the Company and you to arbitrate differences provide mutual consideration for this Mandatory Arbitration\nprovision. Prior to commencing arbitration, if any such matter cannot be settled through negotiation, then the parties agree first to try in good\nfaith to settle the dispute by mediation through a mediator selected by the mutual agreement of both parties. If any such matters cannot be\nresolved by mediation within 30 days of the Company or you requesting mediation (or such longer period as to which you and the Company\nagree in writing), they shall be finally resolved by final and binding arbitration. The parties shall select a neutral arbitrator and/or arbitration\nsponsoring organization by mutual agreement. If the parties are not able to mutually agree to an arbitrator and/or arbitration sponsoring\norganization, the arbitration will be held under the auspices of the American Arbitration Association (“AAA”), and except as otherwise provided\nin this Agreement, shall be in\n2\naccordance with the then current Employment Arbitration Rules of the AAA, which may be found at www.adr.org or by using an internet search\nengine to locate “AAA Employment Arbitration Rules”). The arbitrator, and not any federal, state or local court or agency, shall have the\nexclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Mandatory Arbitration\nprovision. Subject to remedies to which a party to the arbitration may be entitled under applicable law, each party shall pay the fees of its own\nattorneys, the expenses of its witnesses and all other expenses connected with presenting its case. Other costs of the arbitration, including the\ncost of any record or transcripts of the arbitration, administrative fees, the fee of the arbitrator, and all other fees and costs, shall be borne by the\nCompany. All arbitral awards shall be final and binding, and the arbitration will be conducted in the City of New York, New York, in accordance\nwith the Federal Arbitration Act (9 U.S .C . §§ 1 et seq.) . A judgment of a court of competent jurisdiction shall be entered upon the award made\npursuant to the arbitration.\n(b) You agree that any actual or threatened breach by you of the covenants set forth in Sections 1 and 2 of this agreement would result in\nirreparable harm to the Company for which monetary damages alone would be an insufficient remedy. Thus, without limiting Section 6 (a)\nherein, either party may pursue temporary and/or preliminary injunctive relief in a court of competent jurisdiction for specific performance of the\nrestrictions in Sections 1 and 2 of this Agreement, tortious interference with prospective employment and/or the protection of confidential\ninformation and/or trade secrets, prevention of unfair competition, or enforcement of post-employment contractual restrictions or rights related to\nsame; provided, however, that all issues of final relief shall continue to be decided through arbitration, and the pursuit of the temporary and/or\npreliminary injunctive relief described herein shall not constitute a waiver of the parties’ agreement to arbitrate by any party. Both you and the\nCompany expressly waive the right to trial by jury.\n7. Severability. If any provision of this agreement, or any part thereof, is found to be invalid or unenforceable, the same shall not affect\nthe remaining provisions, which shall be given full effect, without regard to the invalid portions. Moreover, if any one or more of the provisions\ncontained in this agreement shall be held to be excessively broad as to duration, scope, activity or subject, such provisions shall be construed by\nlimiting and reducing them so as to be enforceable to the maximum extent with applicable law.\n8. At-Will Employment. This agreement is limited to the foregoing terms and shall not be construed to create any relationship between\nyou and the Company other than at-will employment for all purposes. This agreement supersedes any and all prior agreements concerning the\nsubject matter hereof, and any severance amounts or obligations of the Company to you referenced herein shall be in lieu of, and not in addition\nto, any such amounts or obligations in prior agreements.\n9. Governing Law. Subject to the applicability of the Federal Arbitration Act as stated in Section 6 of this agreement, all other terms of\nthis agreement and all other rights and obligations of the parties thereto shall be interpreted and governed by the laws of the state of New York.\n10. Section 409A of the Code. If any provision of this agreement (or any award of compensation or benefits provided under this\nagreement) would cause you to incur any additional tax or interest under Section 409A of the Code, the Company and you shall reasonably\ncooperate to reform such provision to comply with 409A and the Company agrees to maintain, to the maximum extent practicable without\nviolating 409A of the Code, the original intent and economic benefit to you of the applicable provision; provided that nothing herein shall require\nthe Company to provide you with any gross-up for any tax, interest or penalty incurred by you under Section 409A of the Code.\nAGREED TO AND ACCEPTED\nJ. Crew Group, Inc.\nSignature: /s/ Joan Durkin\nSignature: /s/ Lynda Markoe\nName:\nJoan Durkin\nName:\nLynda Markoe\nTitle:\nEVP – Human Resources\nDate:\nFebruary 18, 2013\nDate:\nFebruary 20, 2013\n3\nSCHEDULE A TO NON-DISCLOSURE,\nNON-SOLICITATION AND NON-COMPETITION AGREEMENT\nUnless waived in writing by the Company, the post-termination restrictions on employment contained in Section 2(a) above shall apply to\nemployment with any entity doing business under the names set forth below, as well as their parent, subsidiary, and affiliate companies or joint\nventure partners, in the United States, Canada, the United Kingdom, Hong Kong, The People’s Republic of China and any other countries or\nterritories where the Company conducts or has material plans to conduct business as of the Termination Date:\nAbercrombie & Fitch\nAeropostale, Inc.\nAmerican Eagle Outfitters, Inc.\nANN, Inc.\nBrooks Brothers Group, Inc.\nC.Wonder, LLC\nCoach, Inc.\nFifth & Pacific Companies, Inc. (formerly Liz Claiborne, Inc.)\nGap, Inc.\nGiorgio Armani S.p .A.\nLimited Brands, Inc.\nLVMH Moet Hennessey – Louis Vuitton SA\nMichael Kors, Inc.\nRalph Lauren Corporation\nTory Burch LLC\nUrban Outfitters, Inc.\nAny retail apparel start-up operated by one of the above companies and all brands or divisions operated by one of the above companies.\n4
+7a70407ab1772c94cae398698d72b024.pdf	effective_date jurisdiction party term	EX-10.5 6 dex105.htm CONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT, MARK A. SIRGO\nExhibit 10.5\nCONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT\nThis CONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT (this “Agreement”) is entered into effective for all\npurposes as of August 24, 2004 by Mark A. Sirgo (“Employee”) in favor of BioDelivery Sciences International, Inc., a Delaware corporation (the\n“Company”). As used herein, the term “Company” includes BioDelivery Sciences International, Inc. and its subsidiaries, including Arius\nPharmaceuticals, Inc.\nIn consideration and as a condition of Employee providing services to the Company pursuant to that certain Employment Agreement, dated as\nof the date hereof, between Employee and the Company (the “Employment Agreement”), Employee hereby agrees as follows:\n1. Confidentiality. At all times, Employee shall keep confidential, except as the Company may otherwise consent to in writing, and not\ndisclose, or make any use of except for the benefit of the Company, at any time either during or subsequent to performance by Employee of services\nfor the Company, any trade secrets, confidential information, knowledge, data or other information of the Company relating to products, processes,\nknow-how, technical data, designs, formulas, test data, customer lists, business plans, marketing plans and strategies, and pricing strategies or other\nsubject matter pertaining to any business of the Company or any of its clients, customers, consultants, licensees or affiliates (collectively, the\n“Confidential Information”), which Employee may produce, obtain or otherwise learn of during the course of his performance of services and after\nthe expiration or termination of the Employment Agreement. The “Confidential Information” shall not include information, technical data or know-\nhow that is or becomes part of the public domain not as a result of any inaction or action of the Employee. Employee shall not deliver, reproduce, or\nin any way allow any such Confidential Information to be delivered to or used by any third parties without the specific direction or consent of a duly\nauthorized representative of the Company.\n2. Return of Confidential Material. Upon the expiration or termination the Employment Agreement, Employee shall promptly surrender and\ndeliver to the Company all records, materials, equipment, drawings, documents, lab notes and books and data of any nature pertaining to any\nInvention (as defined below) or Confidential Information of the Company or to the services provided by Employee, and Employee will not take or\nretain (in any form or format) any description containing or pertaining to any Confidential Information which Employee may produce or obtain\nduring the course of the services provided under the Employment Agreement or otherwise.\n3. Assignment of Inventions and Moral Rights.\n(a) Employee hereby assigns and transfers to the Company, on a perpetual, worldwide and royalty-free basis, his entire right, title and interest\nin and to all Inventions. As used in this agreement, the term “Inventions” shall mean all ideas, improvements, designs, discoveries, developments,\ndrawings, notes, documents, information and/or materials, whether or not patentable and whether or not reduced to practice, made or conceived by\nEmployee (whether made solely by Employee or jointly with others) which: (i) occur or are conceived during the period in which Employee\nperforms services for the Company pursuant to the Employment Agreement and (ii) which relate in any manner to drug, nutraceuticals, genes,\nvaccines, vitamin or other compound delivery technologies involving liposomes, proteoliposomes, cochleates, buccal, transmucosal, transdermal or\noral applications and/or derivatives thereof (“Delivery Technologies”), applications of the Delivery Technologies to specific drugs, nutraceuticals,\ngenes, vaccines, vitamins or other compounds, or result from any task assigned to or undertaken by Employee or any work performed by Employee\nfor or on behalf of the Company or any of its affiliates.\n(b) Employee hereby irrevocably transfers and assigns to the Company any and all Moral Rights that Employee may have in any Inventions.\nEmployee also hereby forever waives and agrees never to assert against the Company, its successors or licensees any and all Moral Rights which\nEmployee may have in any Inventions, even after expiration or termination of the Employment Agreement. For purposes of this Agreement, the term\n“Moral Rights” means any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any similar\nright, existing under the law of any country in the world, or under any treaty.\n4. Disclosure of Inventions. In connection with all Inventions contemplated by Section 3 hereof:\n(a) Employee will disclose all Inventions promptly in writing to the Chief Scientific Officer of the Company, with a copy to the President of\nthe Company, in order to permit the Company to enforce and perfect the rights to which the Company is entitled under this Agreement;\n(b) Employee will, at the Company’s request, promptly execute a written assignment of title to the Company for any Invention, and Employee\nwill preserve all Inventions as Confidential Information in accordance with the terms hereof; and\n(c) Upon request, Employee will assist the Company or its nominee (at the Company’s expense) during and at any time during or subsequent to\nthe performance of services by Employee for the Company in every reasonable way in obtaining for the Company’s own benefit patents and\ncopyrights for all Inventions in any and all countries, which Inventions shall be and remain the sole and exclusive property of the Company or its\nnominee, whether or not patented or copyrighted. Employee will execute such papers and perform such lawful acts as the Company deems to be\nnecessary to allow the Company to exercise all rights, title and interest in such patents and copyrights.\n5. Execution of Documents. In connection with this Agreement, Employee will execute, acknowledge and deliver to the Company or its\nnominee upon request and at the Company’s expense all such documents, including applications for patents and copyrights and assignments of all\nInventions, patents and copyrights to be issued therefore, as the Company may determine necessary or desirable to apply for and obtain letters patent\nand copyrights on all Inventions in any and all countries and/or to protect the interest of the Company or its nominee in Inventions, patents and\ncopyrights and to vest title thereto in the Company or its nominee.\n6. Maintenance of Records. Employee will keep and maintain adequate and current written records of all Inventions made by Employee (in the\nform of notes, sketches, drawings and as may be specified by the Company), which records shall be available to and remain the sole property of the\nCompany at all times.\n7. Prior Inventions. It is understood that all ideas, improvements, designs and discoveries, whether or not patentable and whether or not\nreduced to practice, which Employee made prior to the time the Company and Employee began to consider any possible performance of services\ncontemplated by the Employment Agreement (herein referred to as “Excluded Inventions”) are excluded from the definition of Inventions as used\nherein. Set forth on Exhibit A attached hereto is a complete list of all Excluded Inventions, including numbers of all patents and patent applications,\nand a brief description of all unpatented inventions which are not the property of another party (including, without limitation, a current or previous\ncontracting party). The list is complete and if no items are included on Exhibit A, Employee shall be deemed to have no such prior inventions within\nthe definition of Inventions. Employee will notify the Company in writing before Employee makes any disclosure or performs any work on behalf of\nthe Company which appears to threaten or conflict with proprietary rights Employee claims in any such Invention or idea. In the event of\nEmployee’s failure to give such notice, Employee will make no claim against the Company with respect to any such inventions or ideas.\n2\n8. Other Obligations. Employee acknowledges that the Company, from time to time, may have agreements with other persons or entities or\nwith the U.S . Government, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the\ncourse of work thereunder or regarding the confidential nature of such work. Employee will be bound by all such obligations and restrictions and\nwill take all action necessary to discharge the obligations of the Company thereunder.\n9. Trade Secrets of Others. Employee represents that his performance of all the terms of this Agreement and the Employment Agreement and\nas a consultant to the Company does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data\nacquired by Employee in confidence or in trust, and Employee will not disclose to the Company, or induce the Company to use, any confidential or\nproprietary information or material belonging to any other person or entity. Employee will not enter into any agreement, either written or oral, in\nconflict herewith.\n10. Non-Solicitation. Employee agrees that he will not, without the prior written consent of the Company, at any time during the term of the\nEmployment Agreement or for a period of two (2) years from the date of the expiration or termination of the Employment Agreement for whatever\nreason, either individually or through any entity controlled by Employee, and either on Employee’s behalf or on behalf of any other person or entity\ncompeting or endeavoring to compete with the Company, directly or indirectly, knowingly solicit for employment or retention (or, following such\nsolicitation, employ or retain) as an employee, independent contractor or agent, any person who is an employee of the Company as of the date of the\nexpiration or termination of the Employment Agreement or was an employee of the Company at any time during the two (2) year prior to the the\nexpiration or termination of the Employment Agreement. Employee further agrees that, should Employee be approached by a person who Employee\nhas actual knowledge was an employee of the Company or any subsidiary or joint venture thereof during the period while Employee was employed\nby the Company, Employee will not offer to nor employ or retain (or refer to a third party) as an employee, independent contractor or agent any such\nperson for a period of two (2) years following the expiration or termination of the Employment Agreement.\n11. Injunctive Relief. Employee acknowledges that any breach or attempted breach by Employee of this Agreement or any provision hereof\nshall cause the Company irreparable harm for which any adequate monetary remedy does not exist. Accordingly, in the event of any such breach or\nthreatened breach, the Company shall be entitled to obtain injunctive relief, without the necessity of posting a bond or other surety, restraining such\nbreach or threatened breach.\n12. Modification. This Agreement may not be changed, modified, released, discharged, abandoned, or otherwise amended, in whole or in part,\nexcept by an instrument in writing, signed by Employee and by the Company. Any subsequent change or changes in the relationship between the\nCompany and Employee or in Employee’s compensation by the Company shall not affect the validity or scope of this Agreement.\n13. Reasonable Terms. Employee acknowledges and agrees that the restrictive covenants contained in this Agreement have been reviewed by\nEmployee with the benefit of counsel and that such covenants are reasonable in all of the circumstances for the protection of the legitimate interests\nof the Company.\n14. Entire Agreement. Employee acknowledges receipt of this Agreement, and agrees that with respect to the subject matter thereof it is\nEmployee’s entire agreement with the Company, superseding any previous oral or written communications, representations, understandings, or\nagreements with the Company or any officer or representative thereof.\n3\n15. Severability. In the event that any paragraph or provision of this Agreement shall be held to be illegal or unenforceable, the entire\nAgreement shall not fail on account thereof. It is further agreed that if any one or more of such paragraphs or provisions shall be judged to be void as\ngoing beyond what is reasonable in all of the circumstances for the protection of the interests of the Company, but would be valid if part of the\nwording thereof were deleted or the period thereof reduced or the range of activities covered thereby reduced in scope, the said reduction shall be\ndeemed to apply with such modifications as may be necessary to make them valid and effective and any such modification shall not thereby affect\nthe validity of any other paragraph or provisions contained in this Agreement.\n16. Successors and Assigns. This Agreement shall be binding upon the heirs, executors, administrators or other legal representatives of\nEmployee and is for the benefit of the Company, its successors and assigns. Employee may not assign Employee’s rights or delegate Employee’s\nduties under this Agreement or the Employment Agreement either in whole or in part without the prior written consent of the Company. Any\nattempted assignment or delegation without such consent will be null and void.\n17. Governing Law. This Agreement shall be governed by the laws of the State of New Jersey except for any conflicts of law rules thereof\nwhich might direct the application of the substantive laws of another state.\nEXECUTED as of the date set forth below.\n/s/ Mark A. Sirgo\n/s/ Andrew L. Finn\nMark A. Sirgo\nWitness\nPrint Name: Andrew L. Finn\nDated: August 24, 2004\nAccepted and Agreed:\nBIODELIVERY SCIENCES INTERNATIONAL, INC.\nBy: /s/ James A. McNulty\nName: James A. McNulty\nTitle: Chief Financial Officer\n[Signature Page to Confidentiality and Intellectual Property Agreement]\n4\nEXHIBIT A TO\nCONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT\nPRIOR INVENTIONS WITHIN THE SCOPE OF ASSIGNMENT\nThe following is a complete list of all inventions or improvements patented or, unpatented, that have been made or conceived or first reduced\nto practice by the undersigned alone or jointly with others prior to the time the Company and the undersigned first began to consider the\nundersigned’s performance of services for the Company. The undersigned desires to remove the inventions and improvements listed, if any, from the\noperation of the foregoing Agreement.\nCheck one:\nNo inventions or improvements.\nX As follows:\nSafety closure with easy-open feature for handicapped and elderly individuals Patent #5,158,194. Issued October 27, 1992; Design Patent\n#337,943 issued 8/3/93\nDated: August 24, 2004\n/s/ Mark A. Sirgo\nMark A. Sirgo	EX-10.5 6 dex105.htm CONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT, MARK A. SIRGO\nExhibit 10.5\nCONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT\nThis CONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT (this “Agreement”) is entered into effective for all\npurposes as of August 24, 2004 by Mark A. Sirgo (“Employee”) in favor of BioDelivery Sciences International, Inc., a Delaware corporation (the\n“Company”). As used herein, the term “Company” includes BioDelivery Sciences International, Inc. and its subsidiaries, including Arius\nPharmaceuticals, Inc.\nIn consideration and as a condition of Employee providing services to the Company pursuant to that certain Employment Agreement, dated as\nof the date hereof, between Employee and the Company (the “Employment Agreement”), Employee hereby agrees as follows:\n1. Confidentiality. At all times, Employee shall keep confidential, except as the Company may otherwise consent to in writing, and not\ndisclose, or make any use of except for the benefit of the Company, at any time either during or subsequent to performance by Employee of services\nfor the Company, any trade secrets, confidential information, knowledge, data or other information of the Company relating to products, processes,\nknow-how, technical data, designs, formulas, test data, customer lists, business plans, marketing plans and strategies, and pricing strategies or other\nsubject matter pertaining to any business of the Company or any of its clients, customers, consultants, licensees or affiliates (collectively, the\n“Confidential Information”), which Employee may produce, obtain or otherwise learn of during the course of his performance of services and after\nthe expiration or termination of the Employment Agreement. The “Confidential Information” shall not include information, technical data or know-\nhow that is or becomes part of the public domain not as a result of any inaction or action of the Employee. Employee shall not deliver, reproduce, or\nin any way allow any such Confidential Information to be delivered to or used by any third parties without the specific direction or consent of a duly\nauthorized representative of the Company.\n2. Return of Confidential Material. Upon the expiration or termination the Employment Agreement, Employee shall promptly surrender and\ndeliver to the Company all records, materials, equipment, drawings, documents, lab notes and books and data of any nature pertaining to any\nInvention (as defined below) or Confidential Information of the Company or to the services provided by Employee, and Employee will not take or\nretain (in any form or format) any description containing or pertaining to any Confidential Information which Employee may produce or obtain\nduring the course of the services provided under the Employment Agreement or otherwise.\n3. Assignment of Inventions and Moral Rights.\n(a) Employee hereby assigns and transfers to the Company, on a perpetual, worldwide and royalty-free basis, his entire right, title and interest\nin and to all Inventions. As used in this agreement, the term “Inventions” shall mean all ideas, improvements, designs, discoveries, developments,\ndrawings, notes, documents, information and/or materials, whether or not patentable and whether or not reduced to practice, made or conceived by\nEmployee (whether made solely by Employee or jointly with others) which: (i) occur or are conceived during the period in which Employee\nperforms services for the Company pursuant to the Employment Agreement and (ii) which relate in any manner to drug, nutraceuticals, genes,\nvaccines, vitamin or other compound delivery technologies involving liposomes, proteoliposomes, cochleates, buccal, transmucosal, transdermal or\noral applications and/or derivatives thereof (“Delivery Technologies™), applications of the Delivery Technologies to specific drugs, nutraceuticals,\ngenes, vaccines, vitamins or other compounds, or result from any task assigned to or undertaken by Employee or any work performed by Employee\nfor or on behalf of the Company or any of its affiliates.\n(b) Employee hereby irrevocably transfers and assigns to the Company any and all Moral Rights that Employee may have in any Inventions.\nEmployee also hereby forever waives and agrees never to assert against the Company, its successors or licensees any and all Moral Rights which\nEmployee may have in any Inventions, even after expiration or termination of the Employment Agreement. For purposes of this Agreement, the term\n“Moral Rights” means any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any similar\nright, existing under the law of any country in the world, or under any treaty.\n4. Disclosure of Inventions. In connection with all Inventions contemplated by Section 3 hereof:\n(a) Employee will disclose all Inventions promptly in writing to the Chief Scientific Officer of the Company, with a copy to the President of\nthe Company, in order to permit the Company to enforce and perfect the rights to which the Company is entitled under this Agreement;\n(b) Employee will, at the Company’s request, promptly execute a written assignment of title to the Company for any Invention, and Employee\nwill preserve all Inventions as Confidential Information in accordance with the terms hereof; and\n(c) Upon request, Employee will assist the Company or its nominee (at the Company’s expense) during and at any time during or subsequent to\nthe performance of services by Employee for the Company in every reasonable way in obtaining for the Company’s own benefit patents and\ncopyrights for all Inventions in any and all countries, which Inventions shall be and remain the sole and exclusive property of the Company or its\nnominee, whether or not patented or copyrighted. Employee will execute such papers and perform such lawful acts as the Company deems to be\nnecessary to allow the Company to exercise all rights, title and interest in such patents and copyrights.\n5. Execution of Documents. In connection with this Agreement, Employee will execute, acknowledge and deliver to the Company or its\nnominee upon request and at the Company’s expense all such documents, including applications for patents and copyrights and assignments of all\nInventions, patents and copyrights to be issued therefore, as the Company may determine necessary or desirable to apply for and obtain letters patent\nand copyrights on all Inventions in any and all countries and/or to protect the interest of the Company or its nominee in Inventions, patents and\ncopyrights and to vest title thereto in the Company or its nominee.\n6. Maintenance of Records. Employee will keep and maintain adequate and current written records of all Inventions made by Employee (in the\nform of notes, sketches, drawings and as may be specified by the Company), which records shall be available to and remain the sole property of the\nCompany at all times.\n7. Prior Inventions. It is understood that all ideas, improvements, designs and discoveries, whether or not patentable and whether or not\nreduced to practice, which Employee made prior to the time the Company and Employee began to consider any possible performance of services\ncontemplated by the Employment Agreement (herein referred to as “Excluded Inventions”) are excluded from the definition of Inventions as used\nherein. Set forth on Exhibit A attached hereto is a complete list of all Excluded Inventions, including numbers of all patents and patent applications,\nand a brief description of all unpatented inventions which are not the property of another party (including, without limitation, a current or previous\ncontracting party). The list is complete and if no items are included on Exhibit A, Employee shall be deemed to have no such prior inventions within\nthe definition of Inventions. Employee will notify the Company in writing before Employee makes any disclosure or performs any work on behalf of\nthe Company which appears to threaten or conflict with proprietary rights Employee claims in any such Invention or idea. In the event of\nEmployee’s failure to give such notice, Employee will make no claim against the Company with respect to any such inventions or ideas.\n \n2\n8. Other Obligations. Employee acknowledges that the Company, from time to time, may have agreements with other persons or entities or\nwith the U.S. Government, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the\ncourse of work thereunder or regarding the confidential nature of such work. Employee will be bound by all such obligations and restrictions and\nwill take all action necessary to discharge the obligations of the Company thereunder.\n9. Trade Secrets of Others. Employee represents that his performance of all the terms of this Agreement and the Employment Agreement and\nas a consultant to the Company does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data\nacquired by Employee in confidence or in trust, and Employee will not disclose to the Company, or induce the Company to use, any confidential or\nproprietary information or material belonging to any other person or entity. Employee will not enter into any agreement, either written or oral, in\nconflict herewith.\n10. Non-Solicitation. Employee agrees that he will not, without the prior written consent of the Company, at any time during the term of the\nEmployment Agreement or for a period of two (2) years from the date of the expiration or termination of the Employment Agreement for whatever\nreason, either individually or through any entity controlled by Employee, and either on Employee’s behalf or on behalf of any other person or entity\ncompeting or endeavoring to compete with the Company, directly or indirectly, knowingly solicit for employment or retention (or, following such\nsolicitation, employ or retain) as an employee, independent contractor or agent, any person who is an employee of the Company as of the date of the\nexpiration or termination of the Employment Agreement or was an employee of the Company at any time during the two (2) year prior to the the\nexpiration or termination of the Employment Agreement. Employee further agrees that, should Employee be approached by a person who Employee\nhas actual knowledge was an employee of the Company or any subsidiary or joint venture thereof during the period while Employee was employed\nby the Company, Employee will not offer to nor employ or retain (or refer to a third party) as an employee, independent contractor or agent any such\nperson for a period of two (2) years following the expiration or termination of the Employment Agreement.\n11. Injunctive Relief. Employee acknowledges that any breach or attempted breach by Employee of this Agreement or any provision hereof\nshall cause the Company irreparable harm for which any adequate monetary remedy does not exist. Accordingly, in the event of any such breach or\nthreatened breach, the Company shall be entitled to obtain injunctive relief, without the necessity of posting a bond or other surety, restraining such\nbreach or threatened breach.\n12. Modification. This Agreement may not be changed, modified, released, discharged, abandoned, or otherwise amended, in whole or in part,\nexcept by an instrument in writing, signed by Employee and by the Company. Any subsequent change or changes in the relationship between the\nCompany and Employee or in Employee’s compensation by the Company shall not affect the validity or scope of this Agreement.\n13. Reasonable Terms. Employee acknowledges and agrees that the restrictive covenants contained in this Agreement have been reviewed by\nEmployee with the benefit of counsel and that such covenants are reasonable in all of the circumstances for the protection of the legitimate interests\nof the Company.\n14. Entire Agreement. Employee acknowledges receipt of this Agreement, and agrees that with respect to the subject matter thereof it is\nEmployee’s entire agreement with the Company, superseding any previous oral or written communications, representations, understandings, or\nagreements with the Company or any officer or representative thereof.\n \n15. Severability. In the event that any paragraph or provision of this Agreement shall be held to be illegal or unenforceable, the entire\nAgreement shall not fail on account thereof. It is further agreed that if any one or more of such paragraphs or provisions shall be judged to be void as\ngoing beyond what is reasonable in all of the circumstances for the protection of the interests of the Company, but would be valid if part of the\nwording thereof were deleted or the period thereof reduced or the range of activities covered thereby reduced in scope, the said reduction shall be\ndeemed to apply with such modifications as may be necessary to make them valid and effective and any such modification shall not thereby affect\nthe validity of any other paragraph or provisions contained in this Agreement.\n16. Successors and Assigns. This Agreement shall be binding upon the heirs, executors, administrators or other legal representatives of\nEmployee and is for the benefit of the Company, its successors and assigns. Employee may not assign Employee’s rights or delegate Employee’s\nduties under this Agreement or the Employment Agreement either in whole or in part without the prior written consent of the Company. Any\nattempted assignment or delegation without such consent will be null and void.\n17. Governing Law. This Agreement shall be governed by the laws of the State of New Jersey except for any conflicts of law rules thereof\nwhich might direct the application of the substantive laws of another state.\nEXECUTED as of the date set forth below.\n/s/ Mark A. Sirgo /s/ Andrew L. Finn\nMark A. Sirgo Witness\nPrint Name: Andrew L. Finn\nDated: August 24, 2004\nAccepted and Agreed:\nBIODELIVERY SCIENCES INTERNATIONAL, INC.\nBy:  /s/James A. McNulty\nName: James A. McNulty\nTitle: Chief Financial Officer\n[Signature Page to Confidentiality and Intellectual Property Agreement]\n4\nEXHIBIT A TO\nCONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT\nPRIOR INVENTIONS WITHIN THE SCOPE OF ASSIGNMENT\nThe following is a complete list of all inventions or improvements patented or, unpatented, that have been made or conceived or first reduced\nto practice by the undersigned alone or jointly with others prior to the time the Company and the undersigned first began to consider the\nundersigned’s performance of services for the Company. The undersigned desires to remove the inventions and improvements listed, if any, from the\noperation of the foregoing Agreement.\nCheck one:\nNo inventions or improvements.\nX  Asfollows:\nSafety closure with easy-open feature for handicapped and elderly individuals Patent #5,158,194. Issued October 27, 1992; Design Patent\n#337,943 issued 8/3/93\n/s/ Mark A. Sirgo\nDated: August 24, 2004\nMark A. Sirgo	EX-10.5 6 dex105.htm CONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT, MARK A. SIRGO\nExhibit 10.5\nCONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT\nThis CONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT (this "Agreement") is entered into effective for all\npurposes as of August 24, 2004 by Mark A. Sirgo ("Employee") in favor of BioDelivery Sciences International, Inc., a Delaware corporation (the\n"Company"). As used herein, the term "Company" includes BioDelivery Sciences International, Inc. and its subsidiaries, including Arius\nPharmaceuticals, Inc.\nIn consideration and as a condition of Employee providing services to the Company pursuant to that certain Employment Agreement, dated as\nof the date hereof, between Employee and the Company (the "Employment Agreement"), Employee hereby agrees as follows:\n1. Confidentiality.. At all times, Employee shall keep confidential, except as the Company may otherwise consent to in writing, and not\ndisclose, or make any use of except for the benefit of the Company, at any time either during or subsequent to performance by Employee of services\nfor\nthe Company, any trade secrets, confidential information, knowledge, data or other information of the Company relating to products, processes,\nknow-how, technical data, designs, formulas, test data, customer lists, business plans, marketing plans and strategies, and pricing strategies or other\nsubject matter pertaining to any business of the Company or any of its clients, customers, consultants, licensees or affiliates (collectively, the\n"Confidential Information"), which Employee may produce, obtain or otherwise learn of during the course of his performance of services and after\nthe expiration or termination of the Employment Agreement. The "Confidential Information" shall not include information, technical data or know-\nhow that is or becomes part of the public domain not as a result of any inaction or action of the Employee. Employee shall not deliver, reproduce, or\nin any way allow any such Confidential Information to be delivered to or used by any third parties without the specific direction or consent of a duly\nauthorized representative of the Company.\n2. Return of Confidential Material. Upon the expiration or termination the Employment Agreement, Employee shall promptly surrender and\ndeliver to the Company all records, materials, equipment, drawings, documents, lab notes and books and data of any nature pertaining to any\nInvention (as defined below) or Confidential Information of the Company or to the services provided by Employee, and Employee will not take or\nretain (in any form or format) any description containing or pertaining to any Confidential Information which Employee may produce or obtain\nduring the course of the services provided under the Employment Agreement or otherwise.\n3. Assignment of Inventions and Moral Rights.\n(a) Employee hereby assigns and transfers to the Company, on a perpetual, worldwide and royalty-free basis, his entire right, title and interest\nin\nand to all Inventions. As used in this agreement, the term "Inventions" shall mean all ideas, improvements, designs, discoveries, developments,\ndrawings, notes, documents, information and/or materials, whether or not patentable and whether or not reduced to practice, made or conceived\nby\nEmployee (whether made solely by Employee or jointly with others) which: (i) occur or are conceived during the period in which Employee\nperforms services for the Company pursuant to the Employment Agreement and (ii) which relate in any manner to drug, nutraceuticals, genes,\nvaccines, vitamin or other compound delivery technologies involving liposomes, proteoliposomes, cochleates, buccal, transmucosal, transdermal or\noral applications and/or derivatives thereof ("Delivery Technologies"), applications of the Delivery Technologies to specific drugs, nutraceuticals,\ngenes, vaccines, vitamins or other compounds, or result from any task assigned to or undertaken by Employee or any work performed by Employee\nfor or on behalf of the Company or any of its affiliates.\n(b) Employee hereby irrevocably transfers and assigns to the Company any and all Moral Rights that Employee may have in any Inventions.\nEmployee also hereby forever waives and agrees never to assert against the Company, its successors or licensees any and all Moral Rights which\nEmployee may have in any Inventions, even after expiration or termination of the Employment Agreement. For purposes of this Agreement, the term\n"Moral Rights" means any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any similar\nright, existing under the law of any country in the world, or under any treaty.\n4.\nDisclosure of Inventions. In connection with all Inventions contemplated by Section 3 hereof:\n(a) Employee will disclose all Inventions promptly in writing to the Chief Scientific Officer of the Company, with a copy to the President\nof\nthe\nCompany, in order to permit the Company to enforce and perfect the rights to which the Company is entitled under this Agreement;\n(b) Employee will, at the Company's request, promptly execute a written assignment of title to the Company for any Invention, and Employee\nwill preserve all Inventions as Confidential Information in accordance with the terms hereof; and\n(c) Upon request, Employee will assist the Company or its nominee (at the Company's expense) during and at any time during or subsequent to\nthe performance of services by Employee for the Company in every reasonable way in obtaining for the Company's own benefit patents and\ncopyrights for all Inventions in any and all countries, which Inventions shall be and remain the sole and exclusive property of the Company or its\nnominee, whether or not patented or copyrighted. Employee will execute such papers and perform such lawful acts as the Company deems to be\nnecessary to allow the Company to exercise all rights, title and interest in such patents and copyrights.\n5. Execution of Documents. In connection with this Agreement, Employee will execute, acknowledge and deliver to the Company or its\nnominee upon request and at the Company's expense all such documents, including applications for patents and copyrights and assignments of all\nInventions, patents and copyrights to be issued therefore, as the Company may determine necessary or desirable to apply for and obtain letters patent\nand copyrights on all Inventions in any and all countries and/or to protect the interest of the Company or its nominee in Inventions, patents and\ncopyrights and to vest title thereto in the Company or its nominee.\n6. Maintenance of Records. Employee will keep and maintain adequate and current written records of all Inventions made by Employee (in the\nform of notes, sketches, drawings and as may be specified by the Company), which records shall be available to and remain the sole property of the\nCompany at all times.\n7. Prior Inventions. It is understood that all ideas, improvements, designs and discoveries, whether or not patentable and whether or not\nreduced to practice, which Employee made prior to the time the Company and Employee began to consider any possible performance of services\ncontemplated by the Employment Agreement (herein referred to as "Excluded Inventions") are excluded from the definition of Inventions as used\nherein. Set forth on Exhibit A attached hereto is a complete list of all Excluded Inventions, including numbers of all patents and patent applications,\nand a brief description of all unpatented inventions which are not the property of another party (including, without limitation, a current or previous\ncontracting party). The list is complete and if no items are included on Exhibit A, Employee shall be deemed to have no such prior inventions within\nthe definition of Inventions. Employee will notify the Company in writing before Employee makes any disclosure or performs any work on behalf of\nthe Company which appears to threaten or conflict with proprietary rights Employee claims in any such Invention or idea. In the event of\nEmployee's failure to give such notice, Employee will make no claim against the Company with respect to any such inventions or ideas.\n2\n8. Other Obligations. Employee acknowledges that the Company, from time to time, may have agreements with other persons or entities or\nwith the U.S. Government, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the\ncourse of work thereunder or regarding the confidential nature of such work. Employee will be bound by all such obligations and restrictions\nand\nwill take all action necessary to discharge the obligations of the Company thereunder.\n9.\nTrade Secrets of Others. Employee represents that his performance of all the terms of this Agreement and the Employment Agreement and\nas a consultant to the Company does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data\nacquired by Employee in confidence or in trust, and Employee will not disclose to the Company, or induce the Company to use, any confidential or\nproprietary information or material belonging to any other person or entity. Employee will not enter into any agreement, either written or oral, in\nconflict herewith.\n10. Non-Solicitation. Employee agrees that he will not, without the prior written consent of the Company, at any time during the term of the\nEmployment Agreement or for a period of two (2) years from the date of the expiration or termination of the Employment Agreement for whatever\nreason, either individually or through any entity controlled by Employee, and either on Employee's behalf or on behalf of any other person or entity\ncompeting or endeavoring to compete with the Company, directly or indirectly, knowingly solicit for employment or retention (or, following such\nsolicitation, employ or retain) as an employee, independent contractor or agent, any person who is an employee of the Company as of the date of the\nexpiration or termination of the Employment Agreement or was an employee of the Company at any time during the two (2) year prior to the the\nexpiration or termination of the Employment Agreement. Employee further agrees that, should Employee be approached by a person who Employee\nhas actual knowledge was an employee of the Company or any subsidiary or joint venture thereof during the period while Employee was employed\nby the Company, Employee will not offer to nor employ or retain (or refer to a third party) as an employee, independent contractor or agent any such\nperson for a period of two (2) years following the expiration or termination of the Employment Agreement.\n11. Injunctive Relief. Employee acknowledges that any breach or attempted breach by Employee of this Agreement or any provision hereof\nshall cause the Company irreparable harm for which any adequate monetary remedy does not exist. Accordingly, in the event of any such breach or\nthreatened breach, the Company shall be entitled to obtain injunctive relief, without the necessity of posting a bond or other surety, restraining such\nbreach or threatened breach.\n12. Modification. This Agreement may not be changed, modified, released, discharged, abandoned, or otherwise amended, in whole or in part,\nexcept by an instrument in writing, signed by Employee and by the Company. Any subsequent change or changes in the relationship between the\nCompany and Employee or in Employee's compensation by the Company shall not affect the validity or scope of this Agreement.\n13. Reasonable Terms. Employee acknowledges and agrees that the restrictive covenants contained in this Agreement have been reviewed by\nEmployee with the benefit of counsel and that such covenants are reasonable in all of the circumstances for the protection of the legitimate interests\nof the Company.\n14. Entire Agreement. Employee acknowledges receipt of this Agreement, and agrees that with respect to the subject matter thereof it\nis\nEmployee's entire agreement with the Company, superseding any previous oral or written communications, representations, understandings,\nor\nagreements with the Company or any officer or representative thereof.\n3\n15. Severability. In the event that any paragraph or provision of this Agreement shall be held to be illegal or unenforceable, the entire\nAgreement shall not fail on account thereof. It is further agreed that if any one or more of such paragraphs or provisions shall be judged to be void as\ngoing beyond what is reasonable in all of the circumstances for the protection of the interests of the Company, but would be valid if part of the\nwording thereof were deleted or the period thereof reduced or the range of activities covered thereby reduced in scope, the said reduction shall be\ndeemed to apply with such modifications as may be necessary to make them valid and effective and any such modification shall not thereby affect\nthe validity of any other paragraph or provisions contained in this Agreement.\n16. Successors and Assigns. This Agreement shall be binding upon the heirs, executors, administrators or other legal representatives of\nEmployee and is for the benefit of the Company, its successors and assigns. Employee may not assign Employee's rights or delegate Employee's\nduties under this Agreement or the Employment Agreement either in whole or in part without the prior written consent of the Company. Any\nattempted assignment or delegation without such consent will be null and void.\n17. Governing Law. This Agreement shall be governed by the laws of the State of New Jersey except for any conflicts of law rules thereof\nwhich might direct the application of the substantive laws of another state.\nEXECUTED as of the date set forth below.\n/s/ Mark A. Sirgo\n/s/ Andrew L. Finn\nMark A. Sirgo\nWitness\nPrint Name: Andrew L. Finn\nDated: August 24, 2004\nAccepted and Agreed:\nBIODELIVERY SCIENCES INTERNATIONAL, INC.\nBy:\n/s/ James A. McNulty\nName: James A. McNulty\nTitle: Chief Financial Officer\n[Signature Page to Confidentiality and Intellectual Property Agreement]\n4\nEXHIBIT A TO\nCONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT\nPRIOR INVENTIONS WITHIN THE SCOPE OF ASSIGNMENT\nThe following is a complete list of all inventions or improvements patented or, unpatented, that have been made or conceived or first reduced\nto practice by the undersigned alone or jointly with others prior to the time the Company and the undersigned first began to consider the\nundersigned's performance of services for the Company. The undersigned desires to remove the inventions and improvements listed, if any, from the\noperation of the foregoing Agreement.\nCheck one:\nNo inventions or improvements.\nX\nAs follows:\nSafety closure with easy-open feature for handicapped and elderly individuals Patent #5,158,194. Issued October 27, 1992; Design Patent\n#337,943 issued 8/3/93\n/s/ Mark A. Sirgo\nDated: August 24, 2004\nMark A. Sirgo	EX-10.5 6 dex105.htm CONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT, MARK A. SIRGO\nExhibit 10.5\nCONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT\nThis CONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT (this “Agreement”) is entered into effective for all\npurposes as of August 24, 2004 by Mark A. Sirgo (“Employee”) in favor of BioDelivery Sciences International, Inc., a Delaware corporation (the\n“Company”). As used herein, the term “Company” includes BioDelivery Sciences International, Inc. and its subsidiaries, including Arius\nPharmaceuticals, Inc.\nIn consideration and as a condition of Employee providing services to the Company pursuant to that certain Employment Agreement, dated as\nof the date hereof, between Employee and the Company (the “Employment Agreement”), Employee hereby agrees as follows:\n1. Confidentiality. At all times, Employee shall keep confidential, except as the Company may otherwise consent to in writing, and not\ndisclose, or make any use of except for the benefit of the Company, at any time either during or subsequent to performance by Employee of services\nfor the Company, any trade secrets, confidential information, knowledge, data or other information of the Company relating to products, processes,\nknow-how, technical data, designs, formulas, test data, customer lists, business plans, marketing plans and strategies, and pricing strategies or other\nsubject matter pertaining to any business of the Company or any of its clients, customers, consultants, licensees or affiliates (collectively, the\n“Confidential Information”), which Employee may produce, obtain or otherwise learn of during the course of his performance of services and after\nthe expiration or termination of the Employment Agreement. The “Confidential Information” shall not include information, technical data or know-\nhow that is or becomes part of the public domain not as a result of any inaction or action of the Employee. Employee shall not deliver, reproduce, or\nin any way allow any such Confidential Information to be delivered to or used by any third parties without the specific direction or consent of a duly\nauthorized representative of the Company.\n2. Return of Confidential Material. Upon the expiration or termination the Employment Agreement, Employee shall promptly surrender and\ndeliver to the Company all records, materials, equipment, drawings, documents, lab notes and books and data of any nature pertaining to any\nInvention (as defined below) or Confidential Information of the Company or to the services provided by Employee, and Employee will not take or\nretain (in any form or format) any description containing or pertaining to any Confidential Information which Employee may produce or obtain\nduring the course of the services provided under the Employment Agreement or otherwise.\n3. Assignment of Inventions and Moral Rights.\n(a) Employee hereby assigns and transfers to the Company, on a perpetual, worldwide and royalty-free basis, his entire right, title and interest\nin and to all Inventions. As used in this agreement, the term “Inventions” shall mean all ideas, improvements, designs, discoveries, developments,\ndrawings, notes, documents, information and/or materials, whether or not patentable and whether or not reduced to practice, made or conceived by\nEmployee (whether made solely by Employee or jointly with others) which: (i) occur or are conceived during the period in which Employee\nperforms services for the Company pursuant to the Employment Agreement and (ii) which relate in any manner to drug, nutraceuticals, genes,\nvaccines, vitamin or other compound delivery technologies involving liposomes, proteoliposomes, cochleates, buccal, transmucosal, transdermal or\noral applications and/or derivatives thereof (“Delivery Technologies”), applications of the Delivery Technologies to specific drugs, nutraceuticals,\ngenes, vaccines, vitamins or other compounds, or result from any task assigned to or undertaken by Employee or any work performed by Employee\nfor or on behalf of the Company or any of its affiliates.\n(b) Employee hereby irrevocably transfers and assigns to the Company any and all Moral Rights that Employee may have in any Inventions.\nEmployee also hereby forever waives and agrees never to assert against the Company, its successors or licensees any and all Moral Rights which\nEmployee may have in any Inventions, even after expiration or termination of the Employment Agreement. For purposes of this Agreement, the term\n“Moral Rights” means any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any similar\nright, existing under the law of any country in the world, or under any treaty.\n4. Disclosure of Inventions. In connection with all Inventions contemplated by Section 3 hereof:\n(a) Employee will disclose all Inventions promptly in writing to the Chief Scientific Officer of the Company, with a copy to the President of\nthe Company, in order to permit the Company to enforce and perfect the rights to which the Company is entitled under this Agreement;\n(b) Employee will, at the Company’s request, promptly execute a written assignment of title to the Company for any Invention, and Employee\nwill preserve all Inventions as Confidential Information in accordance with the terms hereof; and\n(c) Upon request, Employee will assist the Company or its nominee (at the Company’s expense) during and at any time during or subsequent to\nthe performance of services by Employee for the Company in every reasonable way in obtaining for the Company’s own benefit patents and\ncopyrights for all Inventions in any and all countries, which Inventions shall be and remain the sole and exclusive property of the Company or its\nnominee, whether or not patented or copyrighted. Employee will execute such papers and perform such lawful acts as the Company deems to be\nnecessary to allow the Company to exercise all rights, title and interest in such patents and copyrights.\n5. Execution of Documents. In connection with this Agreement, Employee will execute, acknowledge and deliver to the Company or its\nnominee upon request and at the Company’s expense all such documents, including applications for patents and copyrights and assignments of all\nInventions, patents and copyrights to be issued therefore, as the Company may determine necessary or desirable to apply for and obtain letters patent\nand copyrights on all Inventions in any and all countries and/or to protect the interest of the Company or its nominee in Inventions, patents and\ncopyrights and to vest title thereto in the Company or its nominee.\n6. Maintenance of Records. Employee will keep and maintain adequate and current written records of all Inventions made by Employee (in the\nform of notes, sketches, drawings and as may be specified by the Company), which records shall be available to and remain the sole property of the\nCompany at all times.\n7. Prior Inventions. It is understood that all ideas, improvements, designs and discoveries, whether or not patentable and whether or not\nreduced to practice, which Employee made prior to the time the Company and Employee began to consider any possible performance of services\ncontemplated by the Employment Agreement (herein referred to as “Excluded Inventions”) are excluded from the definition of Inventions as used\nherein. Set forth on Exhibit A attached hereto is a complete list of all Excluded Inventions, including numbers of all patents and patent applications,\nand a brief description of all unpatented inventions which are not the property of another party (including, without limitation, a current or previous\ncontracting party). The list is complete and if no items are included on Exhibit A, Employee shall be deemed to have no such prior inventions within\nthe definition of Inventions. Employee will notify the Company in writing before Employee makes any disclosure or performs any work on behalf of\nthe Company which appears to threaten or conflict with proprietary rights Employee claims in any such Invention or idea. In the event of\nEmployee’s failure to give such notice, Employee will make no claim against the Company with respect to any such inventions or ideas.\n2\n8. Other Obligations. Employee acknowledges that the Company, from time to time, may have agreements with other persons or entities or\nwith the U.S . Government, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the\ncourse of work thereunder or regarding the confidential nature of such work. Employee will be bound by all such obligations and restrictions and\nwill take all action necessary to discharge the obligations of the Company thereunder.\n9. Trade Secrets of Others. Employee represents that his performance of all the terms of this Agreement and the Employment Agreement and\nas a consultant to the Company does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data\nacquired by Employee in confidence or in trust, and Employee will not disclose to the Company, or induce the Company to use, any confidential or\nproprietary information or material belonging to any other person or entity. Employee will not enter into any agreement, either written or oral, in\nconflict herewith.\n10. Non-Solicitation. Employee agrees that he will not, without the prior written consent of the Company, at any time during the term of the\nEmployment Agreement or for a period of two (2) years from the date of the expiration or termination of the Employment Agreement for whatever\nreason, either individually or through any entity controlled by Employee, and either on Employee’s behalf or on behalf of any other person or entity\ncompeting or endeavoring to compete with the Company, directly or indirectly, knowingly solicit for employment or retention (or, following such\nsolicitation, employ or retain) as an employee, independent contractor or agent, any person who is an employee of the Company as of the date of the\nexpiration or termination of the Employment Agreement or was an employee of the Company at any time during the two (2) year prior to the the\nexpiration or termination of the Employment Agreement. Employee further agrees that, should Employee be approached by a person who Employee\nhas actual knowledge was an employee of the Company or any subsidiary or joint venture thereof during the period while Employee was employed\nby the Company, Employee will not offer to nor employ or retain (or refer to a third party) as an employee, independent contractor or agent any such\nperson for a period of two (2) years following the expiration or termination of the Employment Agreement.\n11. Injunctive Relief. Employee acknowledges that any breach or attempted breach by Employee of this Agreement or any provision hereof\nshall cause the Company irreparable harm for which any adequate monetary remedy does not exist. Accordingly, in the event of any such breach or\nthreatened breach, the Company shall be entitled to obtain injunctive relief, without the necessity of posting a bond or other surety, restraining such\nbreach or threatened breach.\n12. Modification. This Agreement may not be changed, modified, released, discharged, abandoned, or otherwise amended, in whole or in part,\nexcept by an instrument in writing, signed by Employee and by the Company. Any subsequent change or changes in the relationship between the\nCompany and Employee or in Employee’s compensation by the Company shall not affect the validity or scope of this Agreement.\n13. Reasonable Terms. Employee acknowledges and agrees that the restrictive covenants contained in this Agreement have been reviewed by\nEmployee with the benefit of counsel and that such covenants are reasonable in all of the circumstances for the protection of the legitimate interests\nof the Company.\n14. Entire Agreement. Employee acknowledges receipt of this Agreement, and agrees that with respect to the subject matter thereof it is\nEmployee’s entire agreement with the Company, superseding any previous oral or written communications, representations, understandings, or\nagreements with the Company or any officer or representative thereof.\n3\n15. Severability. In the event that any paragraph or provision of this Agreement shall be held to be illegal or unenforceable, the entire\nAgreement shall not fail on account thereof. It is further agreed that if any one or more of such paragraphs or provisions shall be judged to be void as\ngoing beyond what is reasonable in all of the circumstances for the protection of the interests of the Company, but would be valid if part of the\nwording thereof were deleted or the period thereof reduced or the range of activities covered thereby reduced in scope, the said reduction shall be\ndeemed to apply with such modifications as may be necessary to make them valid and effective and any such modification shall not thereby affect\nthe validity of any other paragraph or provisions contained in this Agreement.\n16. Successors and Assigns. This Agreement shall be binding upon the heirs, executors, administrators or other legal representatives of\nEmployee and is for the benefit of the Company, its successors and assigns. Employee may not assign Employee’s rights or delegate Employee’s\nduties under this Agreement or the Employment Agreement either in whole or in part without the prior written consent of the Company. Any\nattempted assignment or delegation without such consent will be null and void.\n17. Governing Law. This Agreement shall be governed by the laws of the State of New Jersey except for any conflicts of law rules thereof\nwhich might direct the application of the substantive laws of another state.\nEXECUTED as of the date set forth below.\n/s/ Mark A. Sirgo\n/s/ Andrew L. Finn\nMark A. Sirgo\nWitness\nPrint Name: Andrew L. Finn\nDated: August 24, 2004\nAccepted and Agreed:\nBIODELIVERY SCIENCES INTERNATIONAL, INC.\nBy: /s/ James A. McNulty\nName: James A. McNulty\nTitle: Chief Financial Officer\n[Signature Page to Confidentiality and Intellectual Property Agreement]\n4\nEXHIBIT A TO\nCONFIDENTIALITY AND INTELLECTUAL PROPERTY AGREEMENT\nPRIOR INVENTIONS WITHIN THE SCOPE OF ASSIGNMENT\nThe following is a complete list of all inventions or improvements patented or, unpatented, that have been made or conceived or first reduced\nto practice by the undersigned alone or jointly with others prior to the time the Company and the undersigned first began to consider the\nundersigned’s performance of services for the Company. The undersigned desires to remove the inventions and improvements listed, if any, from the\noperation of the foregoing Agreement.\nCheck one:\nNo inventions or improvements.\nX As follows:\nSafety closure with easy-open feature for handicapped and elderly individuals Patent #5,158,194. Issued October 27, 1992; Design Patent\n#337,943 issued 8/3/93\nDated: August 24, 2004\n/s/ Mark A. Sirgo\nMark A. Sirgo
+7aaea789c153895efa4dc2cdb239bf7c.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 10 d374757dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nSTRICTLY CONFIDENTIAL\nApril 15, 2011\nLinde AG\nKlosterhofstrasse 1\n80331 Munich\nGermany\nSubject: Confidentiality Agreement\nLadies and Gentlemen:\nIn connection with the discussions between Lincare Holdings Inc. and/or its subsidiaries or affiliates (collectively the “Company”), and Linde\nAG (the “Potential Acquirer”), regarding the possibility of the Potential Acquirer or an affiliate thereof acquiring the Company (the “Potential\nTransaction”), the Company and/or its Representatives (as defined below) is intending to disclose, furnish or reveal to the Potential Acquirer and/or\nits Representatives, either orally, in writing or otherwise, or give the Potential Acquirer and its Representatives access to, certain information about\nthe business, financial condition, operations, assets and liabilities of the Company (the “Information”). As a condition to, and in consideration of, the\nCompany’s and the Potential Acquirer’s willingness to participate in those discussions and to permit the disclosure of Information to the Potential\nAcquirer and/or its Representatives, each of the parties requires the agreement of the other to the terms and conditions of this letter agreement (this\n“Agreement”).\n1. As used in this Agreement, the term “Evaluation Material” shall include all Information, whether (a) prepared by the Company, its\nRepresentatives or otherwise, (b) in written, oral, electronic or other form, or (c) prepared prior to, on or after the date of this Agreement, that is\nfurnished on or after the date hereof to the Potential Acquirer or any of its Representatives by or on behalf of the Company, regardless of the manner\nor medium in which such Evaluation Material is furnished, and such portions of other documentation, notes and materials prepared by the Potential\nAcquirer or any of its Representatives, containing or based in whole or in part on any Information furnished by or on behalf of the Company.\nEvaluation Material also shall include (i) the fact that the parties are considering the Potential Transaction, (ii) any discussions, negotiations and\ninvestigations regarding the terms, conditions or other facts with respect to the Potential Transaction, including the status thereof and the existence\nand terms of this Agreement, and (iii) that Evaluation Material has been made available to the Potential Acquirer (each “Confidential Facts”).\nEvaluation Material other than Confidential Facts does not include information that: (x) is or becomes generally available to the public other than as\na result of disclosure by the Potential Acquirer or its Representatives, (y) becomes available to the Potential Acquirer or its Representatives on a non-\nconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by the Potential Acquirer or\nits Representatives to be bound in respect of such information by a confidentiality agreement with or other obligation of secrecy to the Company or\nanother party which is known by the Potential Acquirer to have such an agreement or obligation to the Company, or (z) is independently developed\nby the Potential Acquirer or its Representatives without reference to\nany of the Information, in the case of individuals who have received Information, as can reasonably be shown by the relevant records.\nWith respect to either party and its Representatives, Confidential Facts do not include information that is or becomes disclosed by the other\nparty or its Representatives (it being understood that disclosure by a party or its Representatives of Confidential Facts shall cause such disclosure to\nbe removed from Confidential Facts for the other party and its Representatives but not the disclosing party or its Representatives).\nThe Potential Acquirer shall use, and shall cause its Representatives to use, the Evaluation Material solely for the purpose of evaluating and, if\napplicable, pursuing the Potential Transaction (the “Permitted Purpose”) and for no other purpose. Except as required by law or the rules of any\nsecurities exchange (subject to Section 3), the Potential Acquirer shall not disclose, and shall cause its Representatives not to disclose, at any time\nand whether or not the Company and the Potential Acquirer enter into a Potential Transaction (except after consummation of the Potential\nTransaction with the Potential Acquirer or its affiliates or to the extent the definitive documentation for a Potential Transaction supersedes this\nagreement), any Evaluation Material to any person or entity (other than the Company) in any manner, or permit or assist any person or entity (other\nthan the Company) to use any Evaluation Material, except that the Potential Acquirer may disclose Evaluation Material to its Representatives who\nneed to know such information for the sole purpose of assisting, and solely to the extent necessary to permit such Representatives to assist, the\nPotential Acquirer in the Permitted Purpose; provided that the Potential Acquirer shall inform each such Representative of the terms of this\nAgreement, and the Potential Acquirer shall be liable to the Company for any action or omission prohibited under this Agreement by any of its\nRepresentatives.\n“Representatives” of any person shall mean its affiliates and the directors, officers, employees, controlling persons, representatives, agents and\nadvisors of such person and its affiliates (including, without limitation, financial advisors, institutional debt financing sources, counsel and\naccountants). An “affiliate” of any person shall mean any other person that through one or more intermediaries, controls, is controlled by, or is under\ncommon control with, the first person. For purposes of this definition, “control” of a person means the possession of power to direct or cause the\ndirection of management and policies of such person, whether through ownership of voting securities, by contract or otherwise. The term “person” as\nused in this Agreement will be interpreted broadly to include the media (electronic, print or otherwise), the Internet, any governmental representative\nor authority or any corporation, company, limited liability company, enterprise, association, partnership, group or other entity or individual.\nWithout limiting the generality of the foregoing, the Potential Acquirer agrees that neither it nor any of its Representatives shall directly or\nindirectly discuss with or offer to any third party any position (whether through equity, as a co-investor, a joint venturer or otherwise) or potential\nposition in any possible transaction with the Company or any other form of direct or indirect participation in any such possible transaction or any\njoint acquisition of the Company by the Potential Acquirer and such third party without the prior written consent of the Company, except that the\nPotential Acquirer or its Representatives may do so in relation to prospective providers or arrangers of financing in relation to the Potential\nTransaction.\n2\n2. Except as required by law, rule or regulation or the rules of any securities exchange (subject to Section 3), the Company shall not disclose,\nand shall cause its Representatives not to disclose, at any time and whether or not the Company and the Potential Acquirer enter into a Potential\nTransaction (except to the extent the definitive documentation for a Potential Transaction supersedes this agreement), the Confidential Facts to any\nperson or entity except that the Company may disclose the Confidential Facts to its Representatives who need to know such information for the sole\npurpose of assisting the Company in the Permitted Purpose; provided that the Company shall inform each such Representative of the terms of this\nAgreement so far as it relates to the Company, and the Company shall be liable to the Potential Acquirer for any action or omission prohibited under\nthis Agreement by any of its Representatives.\n3. In the event that the Potential Acquirer or any of its Representatives is legally required or required by the rules of any securities exchange\nto disclose any Evaluation Material or the Company or any of its Representatives is legally required or required by the rules of any securities\nexchange to disclose the Confidential Facts the party so required will give the other party as promptly as practicable notice of such requirement so\nthat the other party may, at its own expense, seek an appropriate protective order or other remedy, and/or waive compliance with certain provisions\nof this Agreement, and the party so required will cooperate with the other party to obtain such protective order. In the event that such protective\norder or other remedy is not obtained or the other party waives compliance with the relevant provisions of this Agreement, the party so required will\nfurnish only that portion of the Evaluation Material or, as the case may be, Confidential Facts that is legally required to be disclosed and use its\nreasonable efforts, at the other party’s expense, to obtain assurances that confidential treatment will be accorded to such Evaluation Material or\nConfidential Facts.\n4. At any time upon request by the Company, the Potential Acquirer shall either, at the Potential Acquirers’ option, destroy or return to the\nCompany, as promptly as practicable after such request, all documents, materials and other items containing Evaluation Material without retaining\nany copies, extracts or other reproductions in whole or in part of such material, and, upon the written request of the Company, shall provide a\ncertification in form and substance reasonably satisfactory to the Company, signed by an officer of the Potential Acquirer, as to the completeness of\nthe destruction or return of such materials; provided that notwithstanding anything to the contrary herein and subject to the confidentiality\nobligations herein, each of the Potential Acquirer and its Representatives may retain (i) one copy of Evaluation Material to the extent required to\ncomply with the legal, regulatory or policy requirements, as well as (ii) any and all (a) emails and any attachments contained in such emails and\n(b) any electronic files, in each case, to the extent required to comply with, and automatically saved pursuant to, legal, regulatory or policy\nrequirements, including without limitation, any routine computer system back-up tapes, disks or other back-up storage devices. Compliance with this\nparagraph shall not relieve the Potential Acquirer of its other obligations under this Agreement.\n5. As a condition to any further discussions between the Company and the Potential Acquirer with respect to the Potential Transaction, and to\nthe provision of any Evaluation Material to the Potential Acquirer, the Potential Acquirer agrees that, until 18 months from the date of this\nAgreement, none of the (1) Potential Acquirer, (2) its affiliates or (3) any of the Potential Acquirer’s or such affiliates’ respective directors, officers,\nemployees or controlling persons that in the case of clauses (2) or (3) (i) have been made aware of this Agreement or who\n3\nhave otherwise received Evaluation Material or (ii) are acting on behalf of, at the direction of or with the knowledge of the Potential Acquirer or on\nbehalf of, at the direction of or with the knowledge of any of the affiliates of the Potential Acquirer who have received Evaluation Material or are\notherwise aware of this Agreement shall, without the prior consent of the Company, directly or indirectly, alone or jointly or in concert with any\nother person (including by providing financing to any other person), effect or seek, offer or propose (whether publicly or otherwise) to effect (a) the\nacquisition of record or beneficial ownership in excess of 1% of any securities or rights to acquire any securities of the Company or any of its\naffiliates, or of any rights or options to acquire such ownership (including from a person other than the Company); (b) the acquisition other than in\nthe ordinary course of business of any assets of or managed by, or interest in assets of or managed by, the Company or any of its affiliates (including\nany rights or options to acquire any such assets, including from a person other than the Company); (c) the commencement of any tender or exchange\noffer for any securities of the Company or any of its affiliates; (d) the participation in any “solicitation” of “proxies” (as such terms are used in the\nproxy rules of the U.S . Securities and Exchange Commission) or consents to vote or otherwise with respect to any voting securities of the Company\nor any of its affiliates; (e) the making of any public announcement with respect to any proposal for or offer of any extraordinary transaction\ninvolving the Company or any of its securities or assets (or those of its affiliates); (f) any other action, to seek to control or influence the\nmanagement, Board of Directors or policies of the Company or any of its affiliates; (g) the formation, joining or in any way participating in a\n“group” (as defined under the U.S . Securities Exchange Act of 1934, as amended) with respect to the Company; or (h) any action which could\nreasonably be expected to require the Company to make a public announcement as to any of the foregoing; provided however that this Section 5\nshall cease to apply and shall be of no further force or effect in the case of (i) the public disclosure of a proposal for, or the commencement of, a\ntender or exchange offer, by a third-party (unaffiliated with the Potential Acquirer) for more than 50 percent of the Company’s capital stock or voting\nsecurities or (ii) the public disclosure by a third party (unaffiliated with the Potential Acquirer) of a proposal for, or the announcement of, or the\nentry into any agreement (including any letter of intent or similar instrument) for the acquisition (directly or indirectly, including by merger,\nconsolidation, reorganization or other business combination) of more than 50 percent of the Company’s capital stock, voting securities or\nconsolidated assets (including the stock of its subsidiaries or affiliates). The Potential Acquirer further agrees during such 18-month period not to\nrequest, directly or indirectly, that the Company (1) amend or waive any provision of this paragraph (including this sentence), or (2) otherwise\nconsent to any action inconsistent with any provision of this paragraph (including this sentence) or without the consent of the Company, take any\ninitiative with respect to the Company or any of its affiliates or securities which would reasonably be expected to require the Company or any such\naffiliate to make a public announcement regarding (1) such initiative, (2) any of the activities referred to in this paragraph, or (3) the possibility of a\ntransaction involving the Potential Acquirer or its affiliates.\n6. For the 18 month period following the date of this Agreement, none of the Potential Acquirer, and its affiliates or any of the Potential\nAcquirer’s or such affiliates’ directors, officers, employees or controlling persons, in each case who have been made aware of this Agreement or who\nhave otherwise received Evaluation Material (“Restricted Persons”) shall directly or indirectly solicit for hire or engagement, or hire or engage, any\nindividual (a) who during the three months prior to such proposed solicitation, hire, or engagement, has been\n4\nengaged or employed by the Company as a senior officer or business unit leader of the Company or (b) who is an individual the Potential Acquirer\nor its Representatives have come in contact with in connection with the Permitted Purpose; provided, however, that Restricted Persons may make\ngeneral solicitations through public advertisements in the ordinary course of business and consistent with past practice and employ persons in\nconnection with such general solicitations; and provided further that Restricted Persons may solicit and hire persons who are no longer employees of\nthe Company at the time of such solicitation or hire or who approach Restricted Persons or anyone on their behalf without being encouraged to do so\nby Restricted Persons or anyone on their behalf.\n7. Except for those representations and warranties that may be made in a definitive agreement between the Company and the Potential\nAcquirer or its affiliates concerning a Potential Transaction (if and when executed), the Potential Acquirer acknowledges and agrees that neither the\nCompany nor any of its Representatives (a) has made any representation or warranty, express or implied, as to the accuracy or completeness of the\nEvaluation Material or (b) shall have any liability whatsoever hereunder to the Potential Acquirer or its Representatives relating to or resulting from\nthe use of the Evaluation Material or any errors therein or omissions therefrom. Neither this Agreement nor disclosure of any Evaluation Material to\nthe Potential Acquirer or its Representatives shall be deemed by implication or otherwise to vest in the Potential Acquirer or its Representatives\nrights in or to the Evaluation Material, other than the right to use such Evaluation Material solely for the Permitted Purpose.\n8. The Potential Acquirer agrees that all contacts or communications by the Potential Acquirer or its Representatives with the Company\nregarding the subject matter of this Agreement, including as to any Evaluation Material or request for Evaluation Material or with respect to any\nPotential Transaction, shall be made through the Company’s financial advisors, CEO, CFO or other persons nominated by them. Accordingly, the\nPotential Acquirer agrees not to directly or indirectly contact or communicate with any other executive or employee of the Company concerning\nEvaluation Material or the Potential Transaction, or to seek any information in connection therewith from any such person, without the prior consent\nof the Company.\n9. Each of the parties acknowledges that the covenants contained in this Agreement are fundamental for the protection of the other’s\nlegitimate business and proprietary interests and that in the event of any violation by it of any such covenants, the other’s remedies at law may be\ninadequate. In the event of any violation or attempted violation of this Agreement, the non-violating party shall be entitled to seek specific\nperformance and injunctive relief or other equitable remedy without any showing of irreparable harm or damage, and the violating party hereby\nwaives, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond or other security in connection with\nany such remedy. Such remedies shall not be deemed to be the exclusive remedies for any breach of this Agreement but will be in addition to all\nother remedies available at law or in equity to the non-violating party. Any trade secrets included in the Evaluation Material will also be entitled to\nall of the protections and benefits under applicable trade secret law. The violating party hereby waives, and shall use all reasonable efforts to cause\nits Representatives to waive, any requirement that the non-violating party submit proof of the economic value of any trade secret or post a bond or\nother security.\n5\n10. The Potential Acquirer understands that (a) the Company and its Representatives shall conduct the process for the Potential Transaction\nas they in their sole discretion shall determine (including, without limitation, negotiating with any prospective buyer, entering into definitive\nagreements without prior notice to the Potential Acquirer or any other person, and discontinuing discussions or negotiations with the Potential\nAcquirer or any other party at any time for any reason or no reason), (b) any procedures relating to such a Potential Transaction may be changed at\nany time without notice to the Potential Acquirer, (c) the Company shall have the right to reject or accept any potential buyer, proposal or offer, for\nany reason whatsoever, in its sole discretion, and (d) neither the Potential Acquirer nor any of its Representatives shall have any claims whatsoever\nagainst the Company or its Representatives arising out of or relating to the Potential Transaction (other than those against the parties to a definitive\nagreement with the Potential Acquirer in accordance with the terms thereof or under this Agreement). The Potential Acquirer and the Company\nacknowledge and agree that this Agreement is entered into with the express understanding that neither the Company nor the Potential Acquirer is\nobligated to enter into or to commence or continue any discussions or negotiations pertaining to the entry into any Potential Transaction, and that no\nsuch obligation shall arise unless and until a definitive agreement relating to a Potential Transaction is executed and delivered by the parties.\n11. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Delaware. If for any reason\nany court of competent jurisdiction determines it is impossible to so construe any provision of this Agreement and holds that provision to be invalid,\nall other provisions of this Agreement shall remain in full force and effect. This Agreement was negotiated by sophisticated parties at arms length,\nand neither party hereto shall be construed as the drafting party against which the Agreement could be construed. Each of the parties hereby\nirrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware (and, absent jurisdiction in\nsuch courts, the United States Federal court located in the State of Delaware) for any actions, suits or proceedings arising out of or relating to this\nAgreement and the transactions contemplated hereby (and agrees not to commence any action, suit or proceeding relating thereto except in such\ncourts, and further agrees that service of any process, summons, notice or document by U.S . registered mail to the its address set forth above shall be\neffective service of process for any action, suit or proceeding brought against such party in any such court). Each of the parties hereby irrevocably\nand unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions\ncontemplated hereby in the courts of the State of Delaware (and, absent jurisdiction in such courts, the United States Federal court located in the\nState of Delaware), and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such\naction, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n12. Except as otherwise provided herein, the restrictions and covenants set forth herein shall terminate and be of no further force or effect\nupon the two-year anniversary of this Agreement.\n13. This Agreement shall not be assignable by the Potential Acquirer without the consent of the Company. This Agreement shall be binding\nupon, inure to the benefit of, and be enforceable by and against the successors and assigns of each party to this Agreement.\n6\n14. The provisions of this Agreement shall be binding upon any person or entity currently or at any future time controlling, controlled by or\nunder common control with a party, and a party shall be liable to the other for any action or omission prohibited hereunder by any such person or\nentity.\n15. Neither the failure nor any delay by a party in exercising any right, power or privilege under this Agreement will operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and\nprivileges provided by law. If any provision of this Agreement is found to violate any statute, regulation, rule, order or decree of any governmental\nauthority, court, agency or exchange, such invalidity shall not be deemed to affect any other provision hereof or the validity of the remainder of this\nagreement, and such invalid provision shall be deemed deleted from this Agreement to the minimum extent necessary to cure such violation.\n16. Any amendment or modification of the terms and conditions set forth herein or any waiver of such terms and conditions must be agreed\nto in a writing signed by the Company and the Potential Acquirer. This Agreement may be executed in counterparts, each of which will be deemed\nan original, but all of which together will constitute one and the same agreement. Signatures to this Agreement transmitted by facsimile transmission,\nby electronic mail in “portable document format” (“.pdf”) form., or by any other electronic means intended to preserve the original graphic and\npictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.\n17. This Agreement contains the entire agreement and supersedes all prior agreements and understandings, both written and oral, between\nthe parties with respect to the subject matter hereof and thereof.\n7\nPlease execute and return one copy of this Agreement, which will constitute the parties agreement with respect to the subject matter hereof.\nYours truly,\nLINCARE HOLDINGS INC.\nBy: /s/ Paul G. Gabos\nName: Paul G. Gabos\nTitle: Chief Financial Officer\nAgreed to, confirmed and accepted as\nof the date first above written:\nLINDE AG\nBy: /s/ Georg Denoke\n/s/ Jens Lühring\nName: Georg Denoke\nName: Jens Lühring\nTitle: Member of the Executive Board, CFO\nTitle: Head of M&A	EX-99.(D)(2) 10 d374757dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nSTRICTLY CONFIDENTTAL\nApril 15, 2011\nLinde AG\nKlosterhofstrasse 1\n80331 Munich\nGermany\nSubject: Confidentiality Agreement\nLadies and Gentlemen:\nIn connection with the discussions between Lincare Holdings Inc. and/or its subsidiaries or affiliates (collectively the “Company”), and Linde\nAG (the “Potential Acquirer”), regarding the possibility of the Potential Acquirer or an affiliate thereof acquiring the Company (the “Potential\nTransaction”), the Company and/or its Representatives (as defined below) is intending to disclose, furnish or reveal to the Potential Acquirer and/or\nits Representatives, either orally, in writing or otherwise, or give the Potential Acquirer and its Representatives access to, certain information about\nthe business, financial condition, operations, assets and liabilities of the Company (the “Information”). As a condition to, and in consideration of, the\nCompany’s and the Potential Acquirer’s willingness to participate in those discussions and to permit the disclosure of Information to the Potential\nAcquirer and/or its Representatives, each of the parties requires the agreement of the other to the terms and conditions of this letter agreement (this\n“Agreement”).\n1. Asused in this Agreement, the term “Evaluation Material” shall include all Information, whether (a) prepared by the Company, its\nRepresentatives or otherwise, (b) in written, oral, electronic or other form, or (c) prepared prior to, on or after the date of this Agreement, that is\nfurnished on or after the date hereof to the Potential Acquirer or any of its Representatives by or on behalf of the Company, regardless of the manner\nor medium in which such Evaluation Material is furnished, and such portions of other documentation, notes and materials prepared by the Potential\nAcquirer or any of its Representatives, containing or based in whole or in part on any Information furnished by or on behalf of the Company.\nEvaluation Material also shall include (i) the fact that the parties are considering the Potential Transaction, (ii) any discussions, negotiations and\ninvestigations regarding the terms, conditions or other facts with respect to the Potential Transaction, including the status thereof and the existence\nand terms of this Agreement, and (iii) that Evaluation Material has been made available to the Potential Acquirer (each “Confidential Facts”).\nEvaluation Material other than Confidential Facts does not include information that: (x) is or becomes generally available to the public other than as\na result of disclosure by the Potential Acquirer or its Representatives, (y) becomes available to the Potential Acquirer or its Representatives on a non-\nconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by the Potential Acquirer or\nits Representatives to be bound in respect of such information by a confidentiality agreement with or other obligation of secrecy to the Company or\nanother party which is known by the Potential Acquirer to have such an agreement or obligation to the Company, or (z) is independently developed\nby the Potential Acquirer or its Representatives without reference to\nany of the Information, in the case of individuals who have received Information, as can reasonably be shown by the relevant records.\nWith respect to either party and its Representatives, Confidential Facts do not include information that is or becomes disclosed by the other\nparty or its Representatives (it being understood that disclosure by a party or its Representatives of Confidential Facts shall cause such disclosure to\nbe removed from Confidential Facts for the other party and its Representatives but not the disclosing party or its Representatives).\nThe Potential Acquirer shall use, and shall cause its Representatives to use, the Evaluation Material solely for the purpose of evaluating and, if\napplicable, pursuing the Potential Transaction (the “Permitted Purpose™) and for no other purpose. Except as required by law or the rules of any\nsecurities exchange (subject to Section 3), the Potential Acquirer shall not disclose, and shall cause its Representatives not to disclose, at any time\nand whether or not the Company and the Potential Acquirer enter into a Potential Transaction (except after consummation of the Potential\nTransaction with the Potential Acquirer or its affiliates or to the extent the definitive documentation for a Potential Transaction supersedes this\nagreement), any Evaluation Material to any person or entity (other than the Company) in any manner, or permit or assist any person or entity (other\nthan the Company) to use any Evaluation Material, except that the Potential Acquirer may disclose Evaluation Material to its Representatives who\nneed to know such information for the sole purpose of assisting, and solely to the extent necessary to permit such Representatives to assist, the\nPotential Acquirer in the Permitted Purpose; provided that the Potential Acquirer shall inform each such Representative of the terms of this\nAgreement, and the Potential Acquirer shall be liable to the Company for any action or omission prohibited under this Agreement by any of its\nRepresentatives.\n“Representatives” of any person shall mean its affiliates and the directors, officers, employees, controlling persons, representatives, agents and\nadvisors of such person and its affiliates (including, without limitation, financial advisors, institutional debt financing sources, counsel and\naccountants). An “affiliate” of any person shall mean any other person that through one or more intermediaries, controls, is controlled by, or is under\ncommon control with, the first person. For purposes of this definition, “control” of a person means the possession of power to direct or cause the\ndirection of management and policies of such person, whether through ownership of voting securities, by contract or otherwise. The term “person” as\nused in this Agreement will be interpreted broadly to include the media (electronic, print or otherwise), the Internet, any governmental representative\nor authority or any corporation, company, limited liability company, enterprise, association, partnership, group or other entity or individual.\nWithout limiting the generality of the foregoing, the Potential Acquirer agrees that neither it nor any of its Representatives shall directly or\nindirectly discuss with or offer to any third party any position (whether through equity, as a co-investor, a joint venturer or otherwise) or potential\nposition in any possible transaction with the Company or any other form of direct or indirect participation in any such possible transaction or any\njoint acquisition of the Company by the Potential Acquirer and such third party without the prior written consent of the Company, except that the\nPotential Acquirer or its Representatives may do so in relation to prospective providers or arrangers of financing in relation to the Potential\nTransaction.\n2. Except as required by law, rule or regulation or the rules of any securities exchange (subject to Section 3), the Company shall not disclose,\nand shall cause its Representatives not to disclose, at any time and whether or not the Company and the Potential Acquirer enter into a Potential\nTransaction (except to the extent the definitive documentation for a Potential Transaction supersedes this agreement), the Confidential Facts to any\nperson or entity except that the Company may disclose the Confidential Facts to its Representatives who need to know such information for the sole\npurpose of assisting the Company in the Permitted Purpose; provided that the Company shall inform each such Representative of the terms of this\nAgreement so far as it relates to the Company, and the Company shall be liable to the Potential Acquirer for any action or omission prohibited under\nthis Agreement by any of its Representatives.\n3. In the event that the Potential Acquirer or any of its Representatives is legally required or required by the rules of any securities exchange\nto disclose any Evaluation Material or the Company or any of its Representatives is legally required or required by the rules of any securities\nexchange to disclose the Confidential Facts the party so required will give the other party as promptly as practicable notice of such requirement so\nthat the other party may, at its own expense, seek an appropriate protective order or other remedy, and/or waive compliance with certain provisions\nof this Agreement, and the party so required will cooperate with the other party to obtain such protective order. In the event that such protective\norder or other remedy is not obtained or the other party waives compliance with the relevant provisions of this Agreement, the party so required will\nfurnish only that portion of the Evaluation Material or, as the case may be, Confidential Facts that is legally required to be disclosed and use its\nreasonable efforts, at the other party’s expense, to obtain assurances that confidential treatment will be accorded to such Evaluation Material or\nConfidential Facts.\n4. At any time upon request by the Company, the Potential Acquirer shall either, at the Potential Acquirers’ option, destroy or return to the\nCompany, as promptly as practicable after such request, all documents, materials and other items containing Evaluation Material without retaining\nany copies, extracts or other reproductions in whole or in part of such material, and, upon the written request of the Company, shall provide a\ncertification in form and substance reasonably satisfactory to the Company, signed by an officer of the Potential Acquirer, as to the completeness of\nthe destruction or return of such materials; provided that notwithstanding anything to the contrary herein and subject to the confidentiality\nobligations herein, each of the Potential Acquirer and its Representatives may retain (i) one copy of Evaluation Material to the extent required to\ncomply with the legal, regulatory or policy requirements, as well as (ii) any and all (a) emails and any attachments contained in such emails and\n(b) any electronic files, in each case, to the extent required to comply with, and automatically saved pursuant to, legal, regulatory or policy\nrequirements, including without limitation, any routine computer system back-up tapes, disks or other back-up storage devices. Compliance with this\nparagraph shall not relieve the Potential Acquirer of its other obligations under this Agreement.\n5. As a condition to any further discussions between the Company and the Potential Acquirer with respect to the Potential Transaction, and to\nthe provision of any Evaluation Material to the Potential Acquirer, the Potential Acquirer agrees that, until 18 months from the date of this\nAgreement, none of the (1) Potential Acquirer, (2) its affiliates or (3) any of the Potential Acquirer’s or such affiliates’ respective directors, officers,\nemployees or controlling persons that in the case of clauses (2) or (3) (i) have been made aware of this Agreement or who\n3\nhave otherwise received Evaluation Material or (ii) are acting on behalf of, at the direction of or with the knowledge of the Potential Acquirer or on\nbehalf of, at the direction of or with the knowledge of any of the affiliates of the Potential Acquirer who have received Evaluation Material or are\notherwise aware of this Agreement shall, without the prior consent of the Company, directly or indirectly, alone or jointly or in concert with any\nother person (including by providing financing to any other person), effect or seek, offer or propose (whether publicly or otherwise) to effect (a) the\nacquisition of record or beneficial ownership in excess of 1% of any securities or rights to acquire any securities of the Company or any of its\naffiliates, or of any rights or options to acquire such ownership (including from a person other than the Company); (b) the acquisition other than in\nthe ordinary course of business of any assets of or managed by, or interest in assets of or managed by, the Company or any of its affiliates (including\nany rights or options to acquire any such assets, including from a person other than the Company); (c) the commencement of any tender or exchange\noffer for any securities of the Company or any of its affiliates; (d) the participation in any “solicitation” of “proxies” (as such terms are used in the\nproxy rules of the U.S. Securities and Exchange Commission) or consents to vote or otherwise with respect to any voting securities of the Company\nor any of its affiliates; (e) the making of any public announcement with respect to any proposal for or offer of any extraordinary transaction\ninvolving the Company or any of its securities or assets (or those of its affiliates); (f) any other action, to seek to control or influence the\nmanagement, Board of Directors or policies of the Company or any of its affiliates; (g) the formation, joining or in any way participating in a\n“group” (as defined under the U.S. Securities Exchange Act of 1934, as amended) with respect to the Company; or (h) any action which could\nreasonably be expected to require the Company to make a public announcement as to any of the foregoing; provided however that this Section 5\nshall cease to apply and shall be of no further force or effect in the case of (i) the public disclosure of a proposal for, or the commencement of, a\ntender or exchange offer, by a third-party (unaffiliated with the Potential Acquirer) for more than 50 percent of the Company’s capital stock or voting\nsecurities or (ii) the public disclosure by a third party (unaffiliated with the Potential Acquirer) of a proposal for, or the announcement of, or the\nentry into any agreement (including any letter of intent or similar instrument) for the acquisition (directly or indirectly, including by merger,\nconsolidation, reorganization or other business combination) of more than 50 percent of the Company’s capital stock, voting securities or\nconsolidated assets (including the stock of its subsidiaries or affiliates). The Potential Acquirer further agrees during such 18-month period not to\nrequest, directly or indirectly, that the Company (1) amend or waive any provision of this paragraph (including this sentence), or (2) otherwise\nconsent to any action inconsistent with any provision of this paragraph (including this sentence) or without the consent of the Company, take any\ninitiative with respect to the Company or any of its affiliates or securities which would reasonably be expected to require the Company or any such\naffiliate to make a public announcement regarding (1) such initiative, (2) any of the activities referred to in this paragraph, or (3) the possibility of a\ntransaction involving the Potential Acquirer or its affiliates.\n6. For the 18 month period following the date of this Agreement, none of the Potential Acquirer, and its affiliates or any of the Potential\nAcquirer’s or such affiliates” directors, officers, employees or controlling persons, in each case who have been made aware of this Agreement or who\nhave otherwise received Evaluation Material (“Restricted Persons”) shall directly or indirectly solicit for hire or engagement, or hire or engage, any\nindividual (a) who during the three months prior to such proposed solicitation, hire, or engagement, has been\n4\nengaged or employed by the Company as a senior officer or business unit leader of the Company or (b) who is an individual the Potential Acquirer\nor its Representatives have come in contact with in connection with the Permitted Purpose; provided, however, that Restricted Persons may make\ngeneral solicitations through public advertisements in the ordinary course of business and consistent with past practice and employ persons in\nconnection with such general solicitations; and provided further that Restricted Persons may solicit and hire persons who are no longer employees of\nthe Company at the time of such solicitation or hire or who approach Restricted Persons or anyone on their behalf without being encouraged to do so\nby Restricted Persons or anyone on their behalf.\n7. Except for those representations and warranties that may be made in a definitive agreement between the Company and the Potential\nAcquirer or its affiliates concerning a Potential Transaction (if and when executed), the Potential Acquirer acknowledges and agrees that neither the\nCompany nor any of its Representatives (a) has made any representation or warranty, express or implied, as to the accuracy or completeness of the\nEvaluation Material or (b) shall have any liability whatsoever hereunder to the Potential Acquirer or its Representatives relating to or resulting from\nthe use of the Evaluation Material or any errors therein or omissions therefrom. Neither this Agreement nor disclosure of any Evaluation Material to\nthe Potential Acquirer or its Representatives shall be deemed by implication or otherwise to vest in the Potential Acquirer or its Representatives\nrights in or to the Evaluation Material, other than the right to use such Evaluation Material solely for the Permitted Purpose.\n8. The Potential Acquirer agrees that all contacts or communications by the Potential Acquirer or its Representatives with the Company\nregarding the subject matter of this Agreement, including as to any Evaluation Material or request for Evaluation Material or with respect to any\nPotential Transaction, shall be made through the Company’s financial advisors, CEO, CFO or other persons nominated by them. Accordingly, the\nPotential Acquirer agrees not to directly or indirectly contact or communicate with any other executive or employee of the Company concerning\nEvaluation Material or the Potential Transaction, or to seek any information in connection therewith from any such person, without the prior consent\nof the Company.\n9. Each of the parties acknowledges that the covenants contained in this Agreement are fundamental for the protection of the other’s\nlegitimate business and proprietary interests and that in the event of any violation by it of any such covenants, the other’s remedies at law may be\ninadequate. In the event of any violation or attempted violation of this Agreement, the non-violating party shall be entitled to seek specific\nperformance and injunctive relief or other equitable remedy without any showing of irreparable harm or damage, and the violating party hereby\nwaives, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond or other security in connection with\nany such remedy. Such remedies shall not be deemed to be the exclusive remedies for any breach of this Agreement but will be in addition to all\nother remedies available at law or in equity to the non-violating party. Any trade secrets included in the Evaluation Material will also be entitled to\nall of the protections and benefits under applicable trade secret law. The violating party hereby waives, and shall use all reasonable efforts to cause\nits Representatives to waive, any requirement that the non-violating party submit proof of the economic value of any trade secret or post a bond or\nother security.\n10. The Potential Acquirer understands that (a) the Company and its Representatives shall conduct the process for the Potential Transaction\nas they in their sole discretion shall determine (including, without limitation, negotiating with any prospective buyer, entering into definitive\nagreements without prior notice to the Potential Acquirer or any other person, and discontinuing discussions or negotiations with the Potential\nAcquirer or any other party at any time for any reason or no reason), (b) any procedures relating to such a Potential Transaction may be changed at\nany time without notice to the Potential Acquirer, (c) the Company shall have the right to reject or accept any potential buyer, proposal or offer, for\nany reason whatsoever, in its sole discretion, and (d) neither the Potential Acquirer nor any of its Representatives shall have any claims whatsoever\nagainst the Company or its Representatives arising out of or relating to the Potential Transaction (other than those against the parties to a definitive\nagreement with the Potential Acquirer in accordance with the terms thereof or under this Agreement). The Potential Acquirer and the Company\nacknowledge and agree that this Agreement is entered into with the express understanding that neither the Company nor the Potential Acquirer is\nobligated to enter into or to commence or continue any discussions or negotiations pertaining to the entry into any Potential Transaction, and that no\nsuch obligation shall arise unless and until a definitive agreement relating to a Potential Transaction is executed and delivered by the parties.\n11. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Delaware. If for any reason\nany court of competent jurisdiction determines it is impossible to so construe any provision of this Agreement and holds that provision to be invalid,\nall other provisions of this Agreement shall remain in full force and effect. This Agreement was negotiated by sophisticated parties at arms length,\nand neither party hereto shall be construed as the drafting party against which the Agreement could be construed. Each of the parties hereby\nirrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware (and, absent jurisdiction in\nsuch courts, the United States Federal court located in the State of Delaware) for any actions, suits or proceedings arising out of or relating to this\nAgreement and the transactions contemplated hereby (and agrees not to commence any action, suit or proceeding relating thereto except in such\ncourts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to the its address set forth above shall be\neffective service of process for any action, suit or proceeding brought against such party in any such court). Each of the parties hereby irrevocably\nand unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions\ncontemplated hereby in the courts of the State of Delaware (and, absent jurisdiction in such courts, the United States Federal court located in the\nState of Delaware), and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such\naction, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n12.  Except as otherwise provided herein, the restrictions and covenants set forth herein shall terminate and be of no further force or effect\nupon the two-year anniversary of this Agreement.\n13. This Agreement shall not be assignable by the Potential Acquirer without the consent of the Company. This Agreement shall be binding\nupon, inure to the benefit of, and be enforceable by and against the successors and assigns of each party to this Agreement.\n6\n14. The provisions of this Agreement shall be binding upon any person or entity currently or at any future time controlling, controlled by or\nunder common control with a party, and a party shall be liable to the other for any action or omission prohibited hereunder by any such person or\nentity.\n15. Neither the failure nor any delay by a party in exercising any right, power or privilege under this Agreement will operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and\nprivileges provided by law. If any provision of this Agreement is found to violate any statute, regulation, rule, order or decree of any governmental\nauthority, court, agency or exchange, such invalidity shall not be deemed to affect any other provision hereof or the validity of the remainder of this\nagreement, and such invalid provision shall be deemed deleted from this Agreement to the minimum extent necessary to cure such violation.\n16.  Any amendment or modification of the terms and conditions set forth herein or any waiver of such terms and conditions must be agreed\nto in a writing signed by the Company and the Potential Acquirer. This Agreement may be executed in counterparts, each of which will be deemed\nan original, but all of which together will constitute one and the same agreement. Signatures to this Agreement transmitted by facsimile transmission,\nby electronic mail in “portable document format” (“.pdf”) form., or by any other electronic means intended to preserve the original graphic and\npictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.\n17. This Agreement contains the entire agreement and supersedes all prior agreements and understandings, both written and oral, between\nthe parties with respect to the subject matter hereof and thereof.\nPlease execute and return one copy of this Agreement, which will constitute the parties agreement with respect to the subject matter hereof.\nYours truly,\nLINCARE HOLDINGS INC.\nBy: /s/ Paul G. Gabos\nName: Paul G. Gabos\nTitle: Chief Financial Officer\nAgreed to, confirmed and accepted as\nof the date first above written:\nLINDE AG\nBy: /s/ Georg Denoke /s/  Jens Liihring\nName: Georg Denoke Name: Jens Lithring\nTitle: Member of the Executive Board, CFO Title: Head of M&A	EX-99.(D)(2) 10 d374757dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nSTRICTLY CONFIDENTIAL\nApril 15, 2011\nLinde AG\nKlosterhofstrasse 1\n80331 Munich\nGermany\nSubject: Confidentiality. Agreement\nLadies and Gentlemen:\nIn connection with the discussions between Lincare Holdings Inc. and/or its subsidiaries or affiliates (collectively the "Company"), and Linde\nAG\n(the "Potential Acquirer"), regarding the possibility of the Potential Acquirer or an affiliate thereof acquiring the Company (the "Potential\nTransaction"), the Company and/or its Representatives (as defined below) is intending to disclose, furnish or reveal to the Potential Acquirer and/or\nits Representatives, either orally, in writing or otherwise, or give the Potential Acquirer and its Representatives access to, certain information about\nthe business, financial condition, operations, assets and liabilities of the Company (the "Information"). As a condition to, and in consideration of, the\nCompany's and the Potential Acquirer's willingness to participate in those discussions and to permit the disclosure of Information to the Potential\nAcquirer and/or its Representatives, each of the parties requires the agreement of the other to the terms and conditions of this letter agreement (this\n"Agreement").\n1.\nAs used in this Agreement, the term "Evaluation Material" shall include all Information, whether (a) prepared by the Company, its\nRepresentatives or otherwise, (b) in written, oral, electronic or other form, or (c) prepared prior to, on or after the date of this Agreement, that\nis\nfurnished on or after the date hereof to the Potential Acquirer or any of its Representatives by or on behalf of the Company, regardless of the manner\nor medium in which such Evaluation Material is furnished, and such portions of other documentation, notes and materials prepared by the Potential\nAcquirer or any of its Representatives, containing or based in whole or in part on any Information furnished by or on behalf of the Company.\nEvaluation Material also shall include (i) the fact that the parties are considering the Potential Transaction, (ii) any discussions, negotiations and\ninvestigations regarding the terms, conditions or other facts with respect to the Potential Transaction, including the status thereof and the existence\nand terms of this Agreement, and (iii) that Evaluation Material has been made available to the Potential Acquirer (each "Confidential Facts").\nEvaluation Material other than Confidential Facts does not include information that: (x) is or becomes generally available to the public other than\nas\na result of disclosure by the Potential Acquirer or its Representatives, (y) becomes available to the Potential Acquirer or its Representatives on a non-\nconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by the Potential Acquirer\nor\nits Representatives to be bound in respect of such information by a confidentiality agreement with or other obligation of secrecy to the Company or\nanother party which is known by the Potential Acquirer to have such an agreement or obligation to the Company, or (z) is independently developed\nby the Potential Acquirer or its Representatives without reference to\nany of the Information, in the case of individuals who have received Information, as can reasonably be shown by the relevant records.\nWith respect to either party and its Representatives, Confidential Facts do not include information that is or becomes disclosed by the other\nparty or its Representatives (it being understood that disclosure by a party or its Representatives of Confidential Facts shall cause such disclosure\nto\nbe removed from Confidential Facts for the other party and its Representatives but not the disclosing party or its Representatives).\nThe Potential Acquirer shall use, and shall cause its Representatives to use, the Evaluation Material solely for the purpose of evaluating and,\nif\napplicable, pursuing the Potential Transaction (the "Permitted Purpose") and for no other purpose. Except as required by law or the rules of any\nsecurities exchange (subject to Section 3), the Potential Acquirer shall not disclose, and shall cause its Representatives not to disclose, at any time\nand whether or not the Company and the Potential Acquirer enter into a Potential Transaction (except after consummation of the Potential\nTransaction with the Potential Acquirer or its affiliates or to the extent the definitive documentation for a Potential Transaction supersedes\nthis\nagreement), any Evaluation Material to any person or entity (other than the Company) in any manner, or permit or assist any person or entity\n(other\nthan the Company) to use any Evaluation Material, except that the Potential Acquirer may disclose Evaluation Material to its Representatives who\nneed to know such information for the sole purpose of assisting, and solely to the extent necessary to permit such Representatives to assist,\nthe\nPotential Acquirer in the Permitted Purpose; provided that the Potential Acquirer shall inform each such Representative of the terms of this\nAgreement, and the Potential Acquirer shall be liable to the Company for any action or omission prohibited under this Agreement by any of its\nRepresentatives.\n"Representatives" of any person shall mean its affiliates and the directors, officers, employees, controlling persons, representatives, agents and\nadvisors of such person and its affiliates (including, without limitation, financial advisors, institutional debt financing sources, counsel and\naccountants). An "affiliate" of any person shall mean any other person that through one or more intermediaries, controls, is controlled by, or is under\ncommon control with, the first person. For purposes of this definition, "control" of a person means the possession of power to direct or cause the\ndirection of management and policies of such person, whether through ownership of voting securities, by contract or otherwise. The term "person" as\nused in this Agreement will be interpreted broadly to include the media (electronic, print or otherwise), the Internet, any governmental representative\nor authority or any corporation, company, limited liability company, enterprise, association, partnership, group or other entity or individual.\nWithout limiting the generality of the foregoing, the Potential Acquirer agrees that neither it nor any of its Representatives shall directly or\nindirectly discuss with or offer to any third party any position (whether through equity, as a co-investor, a joint venturer or otherwise) or potential\nposition in any possible transaction with the Company or any other form of direct or indirect participation in any such possible transaction or any\njoint acquisition of the Company by the Potential Acquirer and such third party without the prior written consent of the Company, except that the\nPotential Acquirer or its Representatives may do so in relation to prospective providers or arrangers of financing in relation to the Potential\nTransaction.\n2\n2. Except as required by law, rule or regulation or the rules of any securities exchange (subject to Section 3), the Company shall not disclose,\nand shall cause its Representatives not to disclose, at any time and whether or not the Company and the Potential Acquirer enter into a Potential\nTransaction (except to the extent the definitive documentation for a Potential Transaction supersedes this agreement), the Confidential Facts to any\nperson or entity except that the Company may disclose the Confidential Facts to its Representatives who need to know such information for the sole\npurpose of assisting the Company in the Permitted Purpose; provided that the Company shall inform each such Representative of the terms of this\nAgreement so far as it relates to the Company, and the Company shall be liable to the Potential Acquirer for any action or omission prohibited under\nthis Agreement by any of its Representatives.\n3.\nIn the event that the Potential Acquirer or any of its Representatives is legally required or required by the rules of any securities exchange\nto disclose any Evaluation Material or the Company or any of its Representatives is legally required or required by the rules of any securities\nexchange to disclose the Confidential Facts the party so required will give the other party as promptly as practicable notice of such requirement so\nthat the other party may, at its own expense, seek an appropriate protective order or other remedy, and/or waive compliance with certain provisions\nof this Agreement, and the party so required will cooperate with the other party to obtain such protective order. In the event that such protective\norder or other remedy is not obtained or the other party waives compliance with the relevant provisions of this Agreement, the party so required will\nfurnish only that portion of the Evaluation Material or, as the case may be, Confidential Facts that is legally required to be disclosed and use\nits\nreasonable efforts, at the other party's expense, to obtain assurances that confidential treatment will be accorded to such Evaluation Material or\nConfidential Facts.\n4. At any time upon request by the Company, the Potential Acquirer shall either, at the Potential Acquirers' option, destroy or return to the\nCompany, as promptly as practicable after such request, all documents, materials and other items containing Evaluation Material without retaining\nany copies, extracts or other reproductions in whole or in part of such material, and, upon the written request of the Company, shall provide\na\ncertification in form and substance reasonably satisfactory to the Company, signed by an officer of the Potential Acquirer, as to the completeness of\nthe destruction or return of such materials; provided that notwithstanding anything to the contrary herein and subject to the confidentiality\nobligations herein, each of the Potential Acquirer and its Representatives may retain (i) one copy of Evaluation Material to the extent required\nto\ncomply with the legal, regulatory or policy requirements, as well as (ii) any and all (a) emails and any attachments contained in such emails and\n(b) any electronic files, in each case, to the extent required to comply with, and automatically saved pursuant to, legal, regulatory or policy\nrequirements, including without limitation, any routine computer system back-up tapes, disks or other back-up storage devices. Compliance with this\nparagraph shall not relieve the Potential Acquirer of its other obligations under this Agreement.\n5. As a condition to any further discussions between the Company and the Potential Acquirer with respect to the Potential Transaction, and\nto\nthe\nprovision of any Evaluation Material to the Potential Acquirer, the Potential Acquirer agrees that, until 18 months from the date of this\nAgreement, none of the (1) Potential Acquirer, (2) its affiliates or (3) any of the Potential Acquirer's or such affiliates' respective directors, officers,\nemployees or controlling persons that in the case of clauses (2) or (3) (i) have been made aware of this Agreement or who\n3\nhave otherwise received Evaluation Material or (ii) are acting on behalf of, at the direction of or with the knowledge of the Potential Acquirer or on\nbehalf of, at the direction of or with the knowledge of any of the affiliates of the Potential Acquirer who have received Evaluation Material or are\notherwise aware of this Agreement shall, without the prior consent of the Company, directly or indirectly, alone or jointly or in concert with any\nother person (including by providing financing to any other person), effect or seek, offer or propose (whether publicly or otherwise) to effect (a) the\nacquisition of record or beneficial ownership in excess of 1% of any securities or rights to acquire any securities of the Company or any of its\naffiliates, or of any rights or options to acquire such ownership (including from a person other than the Company); (b) the acquisition other than\nin\nthe ordinary course of business of any assets of or managed by, or interest in assets of or managed by, the Company or any of its affiliates (including\nany rights or options to acquire any such assets, including from a person other than the Company); (c) the commencement of any tender or exchange\noffer for any securities of the Company or any of its affiliates; (d) the participation in any "solicitation" of "'proxies" (as such terms are used in the\nproxy rules of the U.S. Securities and Exchange Commission) or consents to vote or otherwise with respect to any voting securities of the Company\nor any of its affiliates; (e) the making of any public announcement with respect to any proposal for or offer of any extraordinary transaction\ninvolving the Company or any of its securities or assets (or those of its affiliates); (f) any other action, to seek to control or influence the\nmanagement, Board of Directors or policies of the Company or any of its affiliates; (g) the formation, joining or in any way participating in a\n"group" (as defined under the U.S. Securities Exchange Act of 1934, as amended) with respect to the Company; or (h) any action which could\nreasonably be expected to require the Company to make a public announcement as to any of the foregoing; provided however that this Section\n5\nshall cease to apply and shall be of no further force or effect in the case of (i) the public disclosure of a proposal for, or the commencement of, a\ntender or exchange offer, by a third-party (unaffiliated with the Potential Acquirer) for more than 50 percent of the Company's capital stock\nor\nvoting\nsecurities or (ii) the public disclosure by a third party (unaffiliated with the Potential Acquirer) of a proposal for, or the announcement of, or the\nentry into any agreement (including any letter of intent or similar instrument) for the acquisition (directly or indirectly, including by merger,\nconsolidation, reorganization or other business combination) of more than 50 percent of the Company's capital stock, voting securities or\nconsolidated assets (including the stock of its subsidiaries or affiliates). The Potential Acquirer further agrees during such 18-month period not\nto\nrequest, directly or indirectly, that the Company (1) amend or waive any provision of this paragraph (including this sentence), or (2) otherwise\nconsent to any action inconsistent with any provision of this paragraph (including this sentence) or without the consent of the Company, take any\ninitiative with respect to the Company or any of its affiliates or securities which would reasonably be expected to require the Company or any such\naffiliate to make a public announcement regarding (1) such initiative, (2) any of the activities referred to in this paragraph, or (3) the possibility\nof\na\ntransaction involving the Potential Acquirer or its affiliates.\n6. For the 18 month period following the date of this Agreement, none of the Potential Acquirer, and its affiliates or any of the Potential\nAcquirer's or such affiliates' directors, officers, employees or controlling persons, in each case who have been made aware of this Agreement or who\nhave otherwise received Evaluation Material ("Restricted Persons") shall directly or indirectly solicit for hire or engagement, or hire or engage, any\nindividual (a) who during the three months prior to such proposed solicitation, hire, or engagement, has been\n4\nengaged or employed by the Company as a senior officer or business unit leader of the Company or (b) who is an individual the Potential Acquirer\nor its Representatives have come in contact with in connection with the Permitted Purpose; provided, however, that Restricted Persons may make\ngeneral solicitations through public advertisements in the ordinary course of business and consistent with past practice and employ persons in\nconnection with such general solicitations; and provided further that Restricted Persons may solicit and hire persons who are no longer employees of\nthe Company at the time of such solicitation or hire or who approach Restricted Persons or anyone on their behalf without being encouraged to do so\nby Restricted Persons or anyone on their behalf.\n7.\nExcept for those representations and warranties that may be made in a definitive agreement between the Company and the Potential\nAcquirer or its affiliates concerning a Potential Transaction (if and when executed), the Potential Acquirer acknowledges and agrees that neither the\nCompany nor any of its Representatives (a) has made any representation or warranty, express or implied, as to the accuracy or completeness of the\nEvaluation Material or (b) shall have any liability whatsoever hereunder to the Potential Acquirer or its Representatives relating to or resulting from\nthe use of the Evaluation Material or any errors therein or omissions therefrom. Neither this Agreement nor disclosure of any Evaluation Material\nto\nthe Potential Acquirer or its Representatives shall be deemed by implication or otherwise to vest in the Potential Acquirer or its Representatives\nrights in or to the Evaluation Material, other than the right to use such Evaluation Material solely for the Permitted Purpose.\n8. The Potential Acquirer agrees that all contacts or communications by the Potential Acquirer or its Representatives with the Company\nregarding the subject matter of this Agreement, including as to any Evaluation Material or request for Evaluation Material or with respect to any\nPotential Transaction, shall be made through the Company's financial advisors, CEO, CFO or other persons nominated by them. Accordingly, the\nPotential Acquirer agrees not to directly or indirectly contact or communicate with any other executive or employee of the Company concerning\nEvaluation Material or the Potential Transaction, or to seek any information in connection therewith from any such person, without the prior consent\nof the Company.\n9. Each of the parties acknowledges that the covenants contained in this Agreement are fundamental for the protection of the other's\nlegitimate business and proprietary interests and that in the event of any violation by it of any such covenants, the other's remedies at law may\nbe\ninadequate. In the event of any violation or attempted violation of this Agreement, the non-violating party shall be entitled to seek specific\nperformance and injunctive relief or other equitable remedy without any showing of irreparable harm or damage, and the violating party hereby\nwaives, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond or other security in connection with\nany such remedy. Such remedies shall not be deemed to be the exclusive remedies for any breach of this Agreement but will be in addition to all\nother remedies available at law or in equity to the non-violating party. Any trade secrets included in the Evaluation Material will also be entitled to\nall of the protections and benefits under applicable trade secret law. The violating party hereby waives, and shall use all reasonable efforts to cause\nits Representatives to waive, any requirement that the non-violating party submit proof of the economic value of any trade secret or post a bond or\nother security.\n5\n10. The Potential Acquirer understands that (a) the Company and its Representatives shall conduct the process for the Potential Transaction\nas they in their sole discretion shall determine (including, without limitation, negotiating with any prospective buyer, entering into definitive\nagreements without prior notice to the Potential Acquirer or any other person, and discontinuing discussions or negotiations with the Potential\nAcquirer or any other party at any time for any reason or no reason), (b) any procedures relating to such a Potential Transaction may be changed at\nany time without notice to the Potential Acquirer, (c) the Company shall have the right to reject or accept any potential buyer, proposal or offer, for\nany reason whatsoever, in its sole discretion, and (d) neither the Potential Acquirer nor any of its Representatives shall have any claims whatsoever\nagainst the Company or its Representatives arising out of or relating to the Potential Transaction (other than those against the parties to a definitive\nagreement with the Potential Acquirer in accordance with the terms thereof or under this Agreement). The Potential Acquirer and the Company\nacknowledge and agree that this Agreement is entered into with the express understanding that neither the Company nor the Potential Acquirer\nis\nobligated to enter into or to commence or continue any discussions or negotiations pertaining to the entry into any Potential Transaction, and that no\nsuch obligation shall arise unless and until a definitive agreement relating to a Potential Transaction is executed and delivered by the parties.\n11. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Delaware. If for any reason\nany court of competent jurisdiction determines it is impossible to so construe any provision of this Agreement and holds that provision to be invalid,\nall other provisions of this Agreement shall remain in full force and effect. This Agreement was negotiated by sophisticated parties at arms length,\nand neither party hereto shall be construed as the drafting party against which the Agreement could be construed. Each of the parties hereby\nirrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware (and, absent jurisdiction in\nsuch courts, the United States Federal court located in the State of Delaware) for any actions, suits or proceedings arising out of or relating to\nthis\nAgreement and the transactions contemplated hereby (and agrees not to commence any action, suit or proceeding relating thereto except in such\ncourts, and further agrees that service of any process, summons, notice or document by U.S. registered mail to the its address set forth above shall\nbe\neffective service of process for any action, suit or proceeding brought against such party in any such court). Each of the parties hereby irrevocably\nand unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions\ncontemplated\nhereby in the courts of the State of Delaware (and, absent jurisdiction in such courts, the United States Federal court located in\nthe\nState of Delaware), and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such\naction, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n12. Except as otherwise provided herein, the restrictions and covenants set forth herein shall terminate and be of no further force or effect\nupon the two-year anniversary of this Agreement.\n13.\nThis Agreement shall not be assignable by the Potential Acquirer without the consent of the Company. This Agreement shall be binding\nupon, inure to the benefit of, and be enforceable by and against the successors and assigns of each party to this Agreement.\n6\n14. The provisions of this Agreement shall be binding upon any person or entity currently or at any future time controlling, controlled by or\nunder common control with a party, and a party shall be liable to the other for any action or omission prohibited hereunder by any such person or\nentity.\n15.\nNeither the failure nor any delay by a party in exercising any right, power or privilege under this Agreement will operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and\nprivileges provided by law. If any provision of this Agreement is found to violate any statute, regulation, rule, order or decree of any governmental\nauthority, court, agency or exchange, such invalidity shall not be deemed to affect any other provision hereof or the validity of the remainder of this\nagreement, and such invalid provision shall be deemed deleted from this Agreement to the minimum extent necessary to cure such violation.\n16.\nAny amendment or modification of the terms and conditions set forth herein or any waiver of such terms and conditions must be\nagreed\nto in a writing signed by the Company and the Potential Acquirer This Agreement may be executed in counterparts, each of which will be deemed\nan original, but all of which together will constitute one and the same agreement. Signatures to this Agreement transmitted by facsimile transmission,\nby electronic mail in "portable document format" (".pdf") form., or by any other electronic means intended to preserve the original graphic and\npictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.\n17. This Agreement contains the entire agreement and supersedes all prior agreements and understandings, both written and oral, between\nthe parties with respect to the subject matter hereof and thereof.\n7\nPlease execute and return one copy of this Agreement, which will constitute the parties agreement with respect to the subject matter hereof.\nYours truly,\nLINCARE HOLDINGS INC.\nBy: /s/ Paul G. Gabos\nName: Paul G. Gabos\nTitle: Chief Financial Officer\nAgreed to, confirmed and accepted as\nof the date first above written:\nLINDE AG\nBy: /s/ Georg Denoke\n/s/ Jens Luhring\nName: Georg Denoke\nName: Jens Luhring\nTitle: Member of the Executive Board, CFO\nTitle: Head of M&A	EX-99.(D)(2) 10 d374757dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nSTRICTLY CONFIDENTIAL\nApril 15, 2011\nLinde AG\nKlosterhofstrasse 1\n80331 Munich\nGermany\nSubject: Confidentiality Agreement\nLadies and Gentlemen:\nIn connection with the discussions between Lincare Holdings Inc. and/or its subsidiaries or affiliates (collectively the “Company”), and Linde\nAG (the “Potential Acquirer”), regarding the possibility of the Potential Acquirer or an affiliate thereof acquiring the Company (the “Potential\nTransaction”), the Company and/or its Representatives (as defined below) is intending to disclose, furnish or reveal to the Potential Acquirer and/or\nits Representatives, either orally, in writing or otherwise, or give the Potential Acquirer and its Representatives access to, certain information about\nthe business, financial condition, operations, assets and liabilities of the Company (the “Information”). As a condition to, and in consideration of, the\nCompany’s and the Potential Acquirer’s willingness to participate in those discussions and to permit the disclosure of Information to the Potential\nAcquirer and/or its Representatives, each of the parties requires the agreement of the other to the terms and conditions of this letter agreement (this\n“Agreement”).\n1. As used in this Agreement, the term “Evaluation Material” shall include all Information, whether (a) prepared by the Company, its\nRepresentatives or otherwise, (b) in written, oral, electronic or other form, or (c) prepared prior to, on or after the date of this Agreement, that is\nfurnished on or after the date hereof to the Potential Acquirer or any of its Representatives by or on behalf of the Company, regardless of the manner\nor medium in which such Evaluation Material is furnished, and such portions of other documentation, notes and materials prepared by the Potential\nAcquirer or any of its Representatives, containing or based in whole or in part on any Information furnished by or on behalf of the Company.\nEvaluation Material also shall include (i) the fact that the parties are considering the Potential Transaction, (ii) any discussions, negotiations and\ninvestigations regarding the terms, conditions or other facts with respect to the Potential Transaction, including the status thereof and the existence\nand terms of this Agreement, and (iii) that Evaluation Material has been made available to the Potential Acquirer (each “Confidential Facts”).\nEvaluation Material other than Confidential Facts does not include information that: (x) is or becomes generally available to the public other than as\na result of disclosure by the Potential Acquirer or its Representatives, (y) becomes available to the Potential Acquirer or its Representatives on a non-\nconfidential basis from a source other than the Company or its Representatives; provided that such source is not known by the Potential Acquirer or\nits Representatives to be bound in respect of such information by a confidentiality agreement with or other obligation of secrecy to the Company or\nanother party which is known by the Potential Acquirer to have such an agreement or obligation to the Company, or (z) is independently developed\nby the Potential Acquirer or its Representatives without reference to\nany of the Information, in the case of individuals who have received Information, as can reasonably be shown by the relevant records.\nWith respect to either party and its Representatives, Confidential Facts do not include information that is or becomes disclosed by the other\nparty or its Representatives (it being understood that disclosure by a party or its Representatives of Confidential Facts shall cause such disclosure to\nbe removed from Confidential Facts for the other party and its Representatives but not the disclosing party or its Representatives).\nThe Potential Acquirer shall use, and shall cause its Representatives to use, the Evaluation Material solely for the purpose of evaluating and, if\napplicable, pursuing the Potential Transaction (the “Permitted Purpose”) and for no other purpose. Except as required by law or the rules of any\nsecurities exchange (subject to Section 3), the Potential Acquirer shall not disclose, and shall cause its Representatives not to disclose, at any time\nand whether or not the Company and the Potential Acquirer enter into a Potential Transaction (except after consummation of the Potential\nTransaction with the Potential Acquirer or its affiliates or to the extent the definitive documentation for a Potential Transaction supersedes this\nagreement), any Evaluation Material to any person or entity (other than the Company) in any manner, or permit or assist any person or entity (other\nthan the Company) to use any Evaluation Material, except that the Potential Acquirer may disclose Evaluation Material to its Representatives who\nneed to know such information for the sole purpose of assisting, and solely to the extent necessary to permit such Representatives to assist, the\nPotential Acquirer in the Permitted Purpose; provided that the Potential Acquirer shall inform each such Representative of the terms of this\nAgreement, and the Potential Acquirer shall be liable to the Company for any action or omission prohibited under this Agreement by any of its\nRepresentatives.\n“Representatives” of any person shall mean its affiliates and the directors, officers, employees, controlling persons, representatives, agents and\nadvisors of such person and its affiliates (including, without limitation, financial advisors, institutional debt financing sources, counsel and\naccountants). An “affiliate” of any person shall mean any other person that through one or more intermediaries, controls, is controlled by, or is under\ncommon control with, the first person. For purposes of this definition, “control” of a person means the possession of power to direct or cause the\ndirection of management and policies of such person, whether through ownership of voting securities, by contract or otherwise. The term “person” as\nused in this Agreement will be interpreted broadly to include the media (electronic, print or otherwise), the Internet, any governmental representative\nor authority or any corporation, company, limited liability company, enterprise, association, partnership, group or other entity or individual.\nWithout limiting the generality of the foregoing, the Potential Acquirer agrees that neither it nor any of its Representatives shall directly or\nindirectly discuss with or offer to any third party any position (whether through equity, as a co-investor, a joint venturer or otherwise) or potential\nposition in any possible transaction with the Company or any other form of direct or indirect participation in any such possible transaction or any\njoint acquisition of the Company by the Potential Acquirer and such third party without the prior written consent of the Company, except that the\nPotential Acquirer or its Representatives may do so in relation to prospective providers or arrangers of financing in relation to the Potential\nTransaction.\n2\n2. Except as required by law, rule or regulation or the rules of any securities exchange (subject to Section 3), the Company shall not disclose,\nand shall cause its Representatives not to disclose, at any time and whether or not the Company and the Potential Acquirer enter into a Potential\nTransaction (except to the extent the definitive documentation for a Potential Transaction supersedes this agreement), the Confidential Facts to any\nperson or entity except that the Company may disclose the Confidential Facts to its Representatives who need to know such information for the sole\npurpose of assisting the Company in the Permitted Purpose; provided that the Company shall inform each such Representative of the terms of this\nAgreement so far as it relates to the Company, and the Company shall be liable to the Potential Acquirer for any action or omission prohibited under\nthis Agreement by any of its Representatives.\n3. In the event that the Potential Acquirer or any of its Representatives is legally required or required by the rules of any securities exchange\nto disclose any Evaluation Material or the Company or any of its Representatives is legally required or required by the rules of any securities\nexchange to disclose the Confidential Facts the party so required will give the other party as promptly as practicable notice of such requirement so\nthat the other party may, at its own expense, seek an appropriate protective order or other remedy, and/or waive compliance with certain provisions\nof this Agreement, and the party so required will cooperate with the other party to obtain such protective order. In the event that such protective\norder or other remedy is not obtained or the other party waives compliance with the relevant provisions of this Agreement, the party so required will\nfurnish only that portion of the Evaluation Material or, as the case may be, Confidential Facts that is legally required to be disclosed and use its\nreasonable efforts, at the other party’s expense, to obtain assurances that confidential treatment will be accorded to such Evaluation Material or\nConfidential Facts.\n4. At any time upon request by the Company, the Potential Acquirer shall either, at the Potential Acquirers’ option, destroy or return to the\nCompany, as promptly as practicable after such request, all documents, materials and other items containing Evaluation Material without retaining\nany copies, extracts or other reproductions in whole or in part of such material, and, upon the written request of the Company, shall provide a\ncertification in form and substance reasonably satisfactory to the Company, signed by an officer of the Potential Acquirer, as to the completeness of\nthe destruction or return of such materials; provided that notwithstanding anything to the contrary herein and subject to the confidentiality\nobligations herein, each of the Potential Acquirer and its Representatives may retain (i) one copy of Evaluation Material to the extent required to\ncomply with the legal, regulatory or policy requirements, as well as (ii) any and all (a) emails and any attachments contained in such emails and\n(b) any electronic files, in each case, to the extent required to comply with, and automatically saved pursuant to, legal, regulatory or policy\nrequirements, including without limitation, any routine computer system back-up tapes, disks or other back-up storage devices. Compliance with this\nparagraph shall not relieve the Potential Acquirer of its other obligations under this Agreement.\n5. As a condition to any further discussions between the Company and the Potential Acquirer with respect to the Potential Transaction, and to\nthe provision of any Evaluation Material to the Potential Acquirer, the Potential Acquirer agrees that, until 18 months from the date of this\nAgreement, none of the (1) Potential Acquirer, (2) its affiliates or (3) any of the Potential Acquirer’s or such affiliates’ respective directors, officers,\nemployees or controlling persons that in the case of clauses (2) or (3) (i) have been made aware of this Agreement or who\n3\nhave otherwise received Evaluation Material or (ii) are acting on behalf of, at the direction of or with the knowledge of the Potential Acquirer or on\nbehalf of, at the direction of or with the knowledge of any of the affiliates of the Potential Acquirer who have received Evaluation Material or are\notherwise aware of this Agreement shall, without the prior consent of the Company, directly or indirectly, alone or jointly or in concert with any\nother person (including by providing financing to any other person), effect or seek, offer or propose (whether publicly or otherwise) to effect (a) the\nacquisition of record or beneficial ownership in excess of 1% of any securities or rights to acquire any securities of the Company or any of its\naffiliates, or of any rights or options to acquire such ownership (including from a person other than the Company); (b) the acquisition other than in\nthe ordinary course of business of any assets of or managed by, or interest in assets of or managed by, the Company or any of its affiliates (including\nany rights or options to acquire any such assets, including from a person other than the Company); (c) the commencement of any tender or exchange\noffer for any securities of the Company or any of its affiliates; (d) the participation in any “solicitation” of “proxies” (as such terms are used in the\nproxy rules of the U.S . Securities and Exchange Commission) or consents to vote or otherwise with respect to any voting securities of the Company\nor any of its affiliates; (e) the making of any public announcement with respect to any proposal for or offer of any extraordinary transaction\ninvolving the Company or any of its securities or assets (or those of its affiliates); (f) any other action, to seek to control or influence the\nmanagement, Board of Directors or policies of the Company or any of its affiliates; (g) the formation, joining or in any way participating in a\n“group” (as defined under the U.S . Securities Exchange Act of 1934, as amended) with respect to the Company; or (h) any action which could\nreasonably be expected to require the Company to make a public announcement as to any of the foregoing; provided however that this Section 5\nshall cease to apply and shall be of no further force or effect in the case of (i) the public disclosure of a proposal for, or the commencement of, a\ntender or exchange offer, by a third-party (unaffiliated with the Potential Acquirer) for more than 50 percent of the Company’s capital stock or voting\nsecurities or (ii) the public disclosure by a third party (unaffiliated with the Potential Acquirer) of a proposal for, or the announcement of, or the\nentry into any agreement (including any letter of intent or similar instrument) for the acquisition (directly or indirectly, including by merger,\nconsolidation, reorganization or other business combination) of more than 50 percent of the Company’s capital stock, voting securities or\nconsolidated assets (including the stock of its subsidiaries or affiliates). The Potential Acquirer further agrees during such 18-month period not to\nrequest, directly or indirectly, that the Company (1) amend or waive any provision of this paragraph (including this sentence), or (2) otherwise\nconsent to any action inconsistent with any provision of this paragraph (including this sentence) or without the consent of the Company, take any\ninitiative with respect to the Company or any of its affiliates or securities which would reasonably be expected to require the Company or any such\naffiliate to make a public announcement regarding (1) such initiative, (2) any of the activities referred to in this paragraph, or (3) the possibility of a\ntransaction involving the Potential Acquirer or its affiliates.\n6. For the 18 month period following the date of this Agreement, none of the Potential Acquirer, and its affiliates or any of the Potential\nAcquirer’s or such affiliates’ directors, officers, employees or controlling persons, in each case who have been made aware of this Agreement or who\nhave otherwise received Evaluation Material (“Restricted Persons”) shall directly or indirectly solicit for hire or engagement, or hire or engage, any\nindividual (a) who during the three months prior to such proposed solicitation, hire, or engagement, has been\n4\nengaged or employed by the Company as a senior officer or business unit leader of the Company or (b) who is an individual the Potential Acquirer\nor its Representatives have come in contact with in connection with the Permitted Purpose; provided, however, that Restricted Persons may make\ngeneral solicitations through public advertisements in the ordinary course of business and consistent with past practice and employ persons in\nconnection with such general solicitations; and provided further that Restricted Persons may solicit and hire persons who are no longer employees of\nthe Company at the time of such solicitation or hire or who approach Restricted Persons or anyone on their behalf without being encouraged to do so\nby Restricted Persons or anyone on their behalf.\n7. Except for those representations and warranties that may be made in a definitive agreement between the Company and the Potential\nAcquirer or its affiliates concerning a Potential Transaction (if and when executed), the Potential Acquirer acknowledges and agrees that neither the\nCompany nor any of its Representatives (a) has made any representation or warranty, express or implied, as to the accuracy or completeness of the\nEvaluation Material or (b) shall have any liability whatsoever hereunder to the Potential Acquirer or its Representatives relating to or resulting from\nthe use of the Evaluation Material or any errors therein or omissions therefrom. Neither this Agreement nor disclosure of any Evaluation Material to\nthe Potential Acquirer or its Representatives shall be deemed by implication or otherwise to vest in the Potential Acquirer or its Representatives\nrights in or to the Evaluation Material, other than the right to use such Evaluation Material solely for the Permitted Purpose.\n8. The Potential Acquirer agrees that all contacts or communications by the Potential Acquirer or its Representatives with the Company\nregarding the subject matter of this Agreement, including as to any Evaluation Material or request for Evaluation Material or with respect to any\nPotential Transaction, shall be made through the Company’s financial advisors, CEO, CFO or other persons nominated by them. Accordingly, the\nPotential Acquirer agrees not to directly or indirectly contact or communicate with any other executive or employee of the Company concerning\nEvaluation Material or the Potential Transaction, or to seek any information in connection therewith from any such person, without the prior consent\nof the Company.\n9. Each of the parties acknowledges that the covenants contained in this Agreement are fundamental for the protection of the other’s\nlegitimate business and proprietary interests and that in the event of any violation by it of any such covenants, the other’s remedies at law may be\ninadequate. In the event of any violation or attempted violation of this Agreement, the non-violating party shall be entitled to seek specific\nperformance and injunctive relief or other equitable remedy without any showing of irreparable harm or damage, and the violating party hereby\nwaives, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond or other security in connection with\nany such remedy. Such remedies shall not be deemed to be the exclusive remedies for any breach of this Agreement but will be in addition to all\nother remedies available at law or in equity to the non-violating party. Any trade secrets included in the Evaluation Material will also be entitled to\nall of the protections and benefits under applicable trade secret law. The violating party hereby waives, and shall use all reasonable efforts to cause\nits Representatives to waive, any requirement that the non-violating party submit proof of the economic value of any trade secret or post a bond or\nother security.\n5\n10. The Potential Acquirer understands that (a) the Company and its Representatives shall conduct the process for the Potential Transaction\nas they in their sole discretion shall determine (including, without limitation, negotiating with any prospective buyer, entering into definitive\nagreements without prior notice to the Potential Acquirer or any other person, and discontinuing discussions or negotiations with the Potential\nAcquirer or any other party at any time for any reason or no reason), (b) any procedures relating to such a Potential Transaction may be changed at\nany time without notice to the Potential Acquirer, (c) the Company shall have the right to reject or accept any potential buyer, proposal or offer, for\nany reason whatsoever, in its sole discretion, and (d) neither the Potential Acquirer nor any of its Representatives shall have any claims whatsoever\nagainst the Company or its Representatives arising out of or relating to the Potential Transaction (other than those against the parties to a definitive\nagreement with the Potential Acquirer in accordance with the terms thereof or under this Agreement). The Potential Acquirer and the Company\nacknowledge and agree that this Agreement is entered into with the express understanding that neither the Company nor the Potential Acquirer is\nobligated to enter into or to commence or continue any discussions or negotiations pertaining to the entry into any Potential Transaction, and that no\nsuch obligation shall arise unless and until a definitive agreement relating to a Potential Transaction is executed and delivered by the parties.\n11. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of Delaware. If for any reason\nany court of competent jurisdiction determines it is impossible to so construe any provision of this Agreement and holds that provision to be invalid,\nall other provisions of this Agreement shall remain in full force and effect. This Agreement was negotiated by sophisticated parties at arms length,\nand neither party hereto shall be construed as the drafting party against which the Agreement could be construed. Each of the parties hereby\nirrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Delaware (and, absent jurisdiction in\nsuch courts, the United States Federal court located in the State of Delaware) for any actions, suits or proceedings arising out of or relating to this\nAgreement and the transactions contemplated hereby (and agrees not to commence any action, suit or proceeding relating thereto except in such\ncourts, and further agrees that service of any process, summons, notice or document by U.S . registered mail to the its address set forth above shall be\neffective service of process for any action, suit or proceeding brought against such party in any such court). Each of the parties hereby irrevocably\nand unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions\ncontemplated hereby in the courts of the State of Delaware (and, absent jurisdiction in such courts, the United States Federal court located in the\nState of Delaware), and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such\naction, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n12. Except as otherwise provided herein, the restrictions and covenants set forth herein shall terminate and be of no further force or effect\nupon the two-year anniversary of this Agreement.\n13. This Agreement shall not be assignable by the Potential Acquirer without the consent of the Company. This Agreement shall be binding\nupon, inure to the benefit of, and be enforceable by and against the successors and assigns of each party to this Agreement.\n6\n14. The provisions of this Agreement shall be binding upon any person or entity currently or at any future time controlling, controlled by or\nunder common control with a party, and a party shall be liable to the other for any action or omission prohibited hereunder by any such person or\nentity.\n15. Neither the failure nor any delay by a party in exercising any right, power or privilege under this Agreement will operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and\nprivileges provided by law. If any provision of this Agreement is found to violate any statute, regulation, rule, order or decree of any governmental\nauthority, court, agency or exchange, such invalidity shall not be deemed to affect any other provision hereof or the validity of the remainder of this\nagreement, and such invalid provision shall be deemed deleted from this Agreement to the minimum extent necessary to cure such violation.\n16. Any amendment or modification of the terms and conditions set forth herein or any waiver of such terms and conditions must be agreed\nto in a writing signed by the Company and the Potential Acquirer. This Agreement may be executed in counterparts, each of which will be deemed\nan original, but all of which together will constitute one and the same agreement. Signatures to this Agreement transmitted by facsimile transmission,\nby electronic mail in “portable document format” (“.pdf”) form., or by any other electronic means intended to preserve the original graphic and\npictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.\n17. This Agreement contains the entire agreement and supersedes all prior agreements and understandings, both written and oral, between\nthe parties with respect to the subject matter hereof and thereof.\n7\nPlease execute and return one copy of this Agreement, which will constitute the parties agreement with respect to the subject matter hereof.\nYours truly,\nLINCARE HOLDINGS INC.\nBy: /s/ Paul G. Gabos\nName: Paul G. Gabos\nTitle: Chief Financial Officer\nAgreed to, confirmed and accepted as\nof the date first above written:\nLINDE AG\nBy: /s/ Georg Denoke\n/s/ Jens Lühring\nName: Georg Denoke\nName: Jens Lühring\nTitle: Member of the Executive Board, CFO\nTitle: Head of M&A
+7b000336caa6b4d83f97d836ff47a31b.pdf	effective_date jurisdiction party term	EX-10.18 10 dex1018.htm FORM OF CONFIDENTIAL INFORMATION AND NON-COMPETITION AGREEMENT\nExhibit 10.18\nVISTAPRINT USA, INC. CONFIDENTIAL INFORMATION\nAND NON-COMPETITION AGREEMENT\nFor good and valid consideration, the receipt and sufficiency of which I hereby acknowledge, VistaPrint USA, Inc. (the “Company”) and I hereby\nagree as follows:\n1. Definitions.\nFor purpose of this agreement, the following terms shall have this following meaning:\n(a) “Customer” shall mean any individual, firm, corporation, federal, state or other government agency or other entity (any of the foregoing\nbeing hereinafter referred to as “Person”) who purchased any of the Company’s products during the twelve month period immediately preceding the\neffective date by engagement as an employee or a consultant with the terminates, regardless of whether I induced or solicited such Person to give its\npatronage or business to the Company.\n(b) “Partner” shall mean any alliance, affiliate, distributor, partner, or other third parties with whom the Company identifies, markets to or\nserves Customers.\n(c) “Prospective Customer” and “Prospective Partner” shall mean any Person with whom or which negotiations or discussions occurred during\nthe 90 day period immediately preceding the effective date my engagement as an employee or consultant with the Company terminates, concerning\nthe purchase or joint marketing of any of the Company’s products by such Person or by such Person’s Customers, regardless of whether I solicited\nsuch Person to give its patronage or business to the Company.\n(d) “Competing Business” shall mean any business with offices in the United States, The United Kingdom, France or Germany, which\nprovides commercial printing products, such as business cards, stationary, brochures, presentation folders, sell sheets, postcards or the like, through\nthe use of Internet based technology. By example, some of the Company’s competitors include iPrint.com, Imagex.com, Kinko’s, Easiset.com,\nNewBeginnings.com, Printing.com, and Printonthenet.com.\n2. Company’s Business Operations.\nThe Company’s business operations focus on providing a wide array of print products used by businesses and institutions of all types, which\nproducts employ advanced Internet-based technology and processes. The Company has patents pending worldwide on certain aspects of technology,\nwhich is collectively known as and will hereinafter be referred to as the “VistaPrint Technology.” The Company has offices in the United States,\nFrance, German and the United Kingdom and markets and sells its products both nationally and internationally.\nDue to the highly competitive nature of the e-commerce enabled printing industry and market in which the Company operates, I understand\nthat the protections afforded to the Company by this Agreement, including but not limited to the protection of its Customers, Partners and other\nproprietary information, are critical to the success of the Company. I further recognize that the temporary restrictions imposed by this Agreement\nupon my ability to solicit Customers or Partners in competition with the Company, or to become employed by a competing business, are reasonable\nand necessary to protect the Company in this highly competitive marketplace.\n3. Proprietary Information.\nI recognize that my relationship with the company is one of high trust and confidence by reason of my access to and contact with the trade\nsecrets and confidential and proprietary information of the Company. I acknowledge that the identity of the Company’s Customers and Partners as\nwell as the suppliers who provide the Company with operational support are deemed to be confidential by the Company. I shall use my best efforts to\nprotect any and all confidential, proprietary, or secret information relating to the products, services, Customers, or business operations (including but\nnot limited to all\nVistaPrint Technology and other processes and systems used by the Company), or activities of the Company (collectively, Proprietary Information”).\nI shall not during my engagement as an employee or consultant by the Company or at any time thereafter, disclose to others or use for my own\nbenefit or for the benefit of another any Proprietary Information (whether or not learned, obtained or developed solely by me or jointly with others).\nMy undertakings and obligations under this section 3 shall not apply, however, to any such information that : (i) is or becomes in the public domain\nthrough no action or failure to act on my part, (ii) is generally disclosed to third parties by the Company without restrictions on such third parties or\n(iii) is approved for release by written authorization of the President of the Company. Upon termination of my engagement or at any other time upon\nrequest, I shall promptly deliver to the Company all Proprietary Information and all notes, handbooks, manuals, memoranda, notebooks, drawings,\nrecords, files, electronic data, and other documents (and all copies or reciprocations of such materials) in my possession or under the my control,\nwhether prepared by me or others that are or that contain Proprietary Information or other information or material that is secret, confidential, or\nproprietary to the Company, all of which I acknowledge is the sole property of the Company.\n4. Other Obligations.\nI acknowledge that the Company from time to time may have agreements with other persons or entities or with the U.S. Government, or\nagencies thereof, that impose obligations or restrictions on the Company regarding the confidential nature of such work. I agree to be bound by all\nsuch obligations of the company, including but not limited to the execution of such Non-Disclosure Agreements as may be required by those other\nentities.\n5. Nonsolicitation.\nDuring the course of my engagement as an employee or consultant with the Company and for a period of one (1) year after the termination of\nmy engagement with Company for any reason whatsoever, I shall not, otherwise than on behalf of the company, directly or indirectly as employee,\nowner, consultant, officer, director or partner, through stock ownership, investment of capital, lending of money or property, rendering of services or\notherwise, either alone or in association with others, or through family members, (i) solicit any of the employees of the Company to leave the\nemploy of the Company, (ii) solicit any Customer or Prospective Customer for any purpose that could reasonable considered to be competitive to the\nCompany, or (iii) solicit any Partner or Prospective Partner for any purpose that would be competitive with solicitations of such Partners by the\nCompany.\n6. Noncompetition.\n(a) During the course of my engagement as an employee or consultant with the Company, and for a period of 180 days after the termination of\nmy employment with the Company for any reason whatsoever, I shall not, without the express written consent of the Company engage or become\ninterested, directly or indirectly, as employee, owner, consultant, officer, director, or partner, through stock ownership, investment of capital, lending\nof money or property, rendering of services or otherwise, either alone or in association with others, or through family members, in the operation of\nany Competing Business (as defined in Section 1(d)) otherwise than on behalf of the Company.\n(b) My holding of any investment in any business or enterprise other than the Company shall not be deemed to be a violation of this section 5\nif such investment does not constitute over 5 percent of the outstanding issue of such security and I do not otherwise accept employment with, act as\na consultant to, become an officer, director or partner of, or otherwise become actively associated with the issuer of such security.\n7. Reasonableness.\nI recognize, acknowledge and agree that the company engages in extensive marketing and conducts business throughout the world and that the\nforegoing limitations are reasonable and properly required for the adequate protection of the Company’s business and do not preclude me from\npursuing my\nlivelihood. However, if any such limitation is found by any court of competent jurisdiction to be unenforceable because it extends for too long a\nperiod of time or over too great a range of activities or on too broad a geographic area, it shall be interpreted to extend only over the maximum\nperiod of time, range of activities or geographic areas as to which it may be enforceable.\n8. Breach.\nIf I violate any provision of this Agreement, then the time limitations set forth in this Agreement shall be extended for a period of time equal to\nthe period of time during which such breach occurs, and, in the event the Company is required to seek relief from such breach before any court,\nboard or other tribunal, then the time limitations shall be extended for a period of time of time equal to the pendency of such proceedings, including\nall appeals. In the event the Company is required to take any action to enforce any provision of this agreement, and provided that the Company\nprevails in any such action, then I shall be liable for the Company’s reasonable expenses, including attorneys fees, associated with any such action.\n9. Liquidated Damages.\nI understand that in the event I breach any of the non-solicitation, nondisclosure, or non-competition provisions of this Agreement, the\nmonetary damages which the Company will sustain may be difficult to ascertain. I hereby agree that in the event of any such breach on my part, that\nI will be liable to the Company for liquidated damages in the amount of $25,000.00. I hereby acknowledge that said damages are reasonable, do not\nconstitute a penalty, and I further agree that I will not contest the reasonableness of said liquidated damages in any such action commenced by either\nparty with respect to this Agreement.\n10. Equitable Relief.\nI acknowledge that any breach of this Agreement by me may give rise to irreparable injury to the Company, which may not be adequately\ncompensated by damages. Accordingly, in the event of a breach or threatened breach of any Sections 3 through 6 of this Agreement by me, the\nCompany shall have, in addition to any remedies it may have at law, the right to an injunction or other equitable relief to prevent the violation of its\nrights hereunder.\n11. Miscellaneous.\n(a) Any action or proceeding brought by either party against the other arising out of or related to this Agreement shall be brought only in a\nstate or federal court of competent jurisdiction located within the Commonwealth of Massachusetts, and the parties hereby consent to the personal\njurisdiction of such courts.\n(b) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of\nthis Agreement.\n(c) This Agreement supersedes all previous agreements, written or oral, between the Company and me relating to the subject matter of this\nAgreement. This Agreement may not be modified, changed or discharged in whole or in part, except by and agreement in writing signed by the\nCompany and me. I agree that any subsequent change or changes in the scope of or compensation for my engagement with the Company, the\nduration of my engagement with the Company, or the reasons for the cessation or termination of my engagement with the Company shall not affect\nthe validity or scope of this Agreement.\n(d) No delay or omission by the Company in exercising any rights under this Agreement shall operate as a waiver of that or any other right. A\nwaiver or consent given by the Company on any one occasion is effective only in that instance and shall not be construed as a bar to or waiver of any\nright on any other occasion.\n(e) I expressly consent to be bound by the provisions of this Agreement for the benefit of the Company or any parent, subsidiary or affiliate or\nsuccessor thereof without the necessity for any separate execution of this Agreement in favor of such parent, subsidiary or affiliate.\n(f) I acknowledge and agree that the covenants made by me under this Agreement are to be construed as independent agreements on my part,\nand the existence of any claims or causes of action which I might have against the Company shall not constitute a defense to the enforcement by the\nCompany or its assigns of the provisions of this Agreement.\n(g) I acknowledge that my execution of this Agreement is supported by adequate consideration, including but not limited to the\ncommencement and continuation of my employment with the Company.\n(h) I acknowledge that I have had the opportunity to consult with legal counsel of my own choosing prior to my execution of this Agreement,\nand I understand the legal significance of this representation.\n(i) This Agreement is governed by the laws of the Commonwealth of Massachusetts without giving effect to the conflict of laws provisions\nthereof.\n(j) This Agreement shall ensure to the benefit of the Company’s successors, assigns, subsidiaries and affiliates.\nExecuted as a document under seal on the dates as below appear.\nDate:\nSignature:\nAgreed to and Accepted by VistaPrint USA, Inc.\nBy:\nDate:\nTitle:	EX-10.18 10 dex1018.htm FORM OF CONFIDENTIAL INFORMATION AND NON-COMPETITION AGREEMENT\nExhibit 10.18\nVISTAPRINT USA, INC. CONFIDENTIAL INFORMATION\nAND NON-COMPETITION AGREEMENT\nFor good and valid consideration, the receipt and sufficiency of which I hereby acknowledge, VistaPrint USA, Inc. (the “Company”) and I hereby\nagree as follows:\n1. Definitions.\nFor purpose of this agreement, the following terms shall have this following meaning:\n(a) “Customer” shall mean any individual, firm, corporation, federal, state or other government agency or other entity (any of the foregoing\nbeing hereinafter referred to as “Person”) who purchased any of the Company’s products during the twelve month period immediately preceding the\neffective date by engagement as an employee or a consultant with the terminates, regardless of whether I induced or solicited such Person to give its\npatronage or business to the Company.\n(b) “Partner” shall mean any alliance, affiliate, distributor, partner, or other third parties with whom the Company identifies, markets to or\nserves Customers.\n(c) “Prospective Customer” and “Prospective Partner” shall mean any Person with whom or which negotiations or discussions occurred during\nthe 90 day period immediately preceding the effective date my engagement as an employee or consultant with the Company terminates, concerning\nthe purchase or joint marketing of any of the Company’s products by such Person or by such Person’s Customers, regardless of whether I solicited\nsuch Person to give its patronage or business to the Company.\n(d) “Competing Business” shall mean any business with offices in the United States, The United Kingdom, France or Germany, which\nprovides commercial printing products, such as business cards, stationary, brochures, presentation folders, sell sheets, postcards or the like, through\nthe use of Internet based technology. By example, some of the Company’s competitors include iPrint.com, Imagex.com, Kinko’s, Easiset.com,\nNewBeginnings.com, Printing.com, and Printonthenet.com.\n2. Company’s Business Operations.\nThe Company’s business operations focus on providing a wide array of print products used by businesses and institutions of all types, which\nproducts employ advanced Internet-based technology and processes. The Company has patents pending worldwide on certain aspects of technology,\nwhich is collectively known as and will hereinafter be referred to as the “VistaPrint Technology.” The Company has offices in the United States,\nFrance, German and the United Kingdom and markets and sells its products both nationally and internationally.\nDue to the highly competitive nature of the e-commerce enabled printing industry and market in which the Company operates, I understand\nthat the protections afforded to the Company by this Agreement, including but not limited to the protection of its Customers, Partners and other\nproprietary information, are critical to the success of the Company. I further recognize that the temporary restrictions imposed by this Agreement\nupon my ability to solicit Customers or Partners in competition with the Company, or to become employed by a competing business, are reasonable\nand necessary to protect the Company in this highly competitive marketplace.\n3. Proprietary Information.\nI recognize that my relationship with the company is one of high trust and confidence by reason of my access to and contact with the trade\nsecrets and confidential and proprietary information of the Company. I acknowledge that the identity of the Company’s Customers and Partners as\nwell as the suppliers who provide the Company with operational support are deemed to be confidential by the Company. I shall use my best efforts to\nprotect any and all confidential, proprietary, or secret information relating to the products, services, Customers, or business operations (including but\nnot limited to all\nVistaPrint Technology and other processes and systems used by the Company), or activities of the Company (collectively, Proprietary Information”).\nI shall not during my engagement as an employee or consultant by the Company or at any time thereafter, disclose to others or use for my own\nbenefit or for the benefit of another any Proprietary Information (whether or not learned, obtained or developed solely by me or jointly with others).\nMy undertakings and obligations under this section 3 shall not apply, however, to any such information that : (i) is or becomes in the public domain\nthrough no action or failure to act on my part, (ii) is generally disclosed to third parties by the Company without restrictions on such third parties or\n(iii) is approved for release by written authorization of the President of the Company. Upon termination of my engagement or at any other time upon\nrequest, I shall promptly deliver to the Company all Proprietary Information and all notes, handbooks, manuals, memoranda, notebooks, drawings,\nrecords, files, electronic data, and other documents (and all copies or reciprocations of such materials) in my possession or under the my control,\nwhether prepared by me or others that are or that contain Proprietary Information or other information or material that is secret, confidential, or\nproprietary to the Company, all of which I acknowledge is the sole property of the Company.\n4.  Other Obligations.\nI acknowledge that the Company from time to time may have agreements with other persons or entities or with the U.S. Government, or\nagencies thereof, that impose obligations or restrictions on the Company regarding the confidential nature of such work. I agree to be bound by all\nsuch obligations of the company, including but not limited to the execution of such Non-Disclosure Agreements as may be required by those other\nentities.\n5. Nonsolicitation.\nDuring the course of my engagement as an employee or consultant with the Company and for a period of one (1) year after the termination of\nmy engagement with Company for any reason whatsoever, I shall not, otherwise than on behalf of the company, directly or indirectly as employee,\nowner, consultant, officer, director or partner, through stock ownership, investment of capital, lending of money or property, rendering of services or\notherwise, either alone or in association with others, or through family members, (i) solicit any of the employees of the Company to leave the\nemploy of the Company, (ii) solicit any Customer or Prospective Customer for any purpose that could reasonable considered to be competitive to the\nCompany, or (iii) solicit any Partner or Prospective Partner for any purpose that would be competitive with solicitations of such Partners by the\nCompany.\n6.  Noncompetition.\n(a) During the course of my engagement as an employee or consultant with the Company, and for a period of 180 days after the termination of\nmy employment with the Company for any reason whatsoever, I shall not, without the express written consent of the Company engage or become\ninterested, directly or indirectly, as employee, owner, consultant, officer, director, or partner, through stock ownership, investment of capital, lending\nof money or property, rendering of services or otherwise, either alone or in association with others, or through family members, in the operation of\nany Competing Business (as defined in Section 1(d)) otherwise than on behalf of the Company.\n(b) My holding of any investment in any business or enterprise other than the Company shall not be deemed to be a violation of this section 5\nif such investment does not constitute over 5 percent of the outstanding issue of such security and I do not otherwise accept employment with, act as\na consultant to, become an officer, director or partner of, or otherwise become actively associated with the issuer of such security.\n7. Reasonableness.\nI recognize, acknowledge and agree that the company engages in extensive marketing and conducts business throughout the world and that the\nforegoing limitations are reasonable and properly required for the adequate protection of the Company’s business and do not preclude me from\npursuing my\nlivelihood. However, if any such limitation is found by any court of competent jurisdiction to be unenforceable because it extends for too long a\nperiod of time or over too great a range of activities or on too broad a geographic area, it shall be interpreted to extend only over the maximum\nperiod of time, range of activities or geographic areas as to which it may be enforceable.\n8. Breach.\nIf I violate any provision of this Agreement, then the time limitations set forth in this Agreement shall be extended for a period of time equal to\nthe period of time during which such breach occurs, and, in the event the Company is required to seek relief from such breach before any court,\nboard or other tribunal, then the time limitations shall be extended for a period of time of time equal to the pendency of such proceedings, including\nall appeals. In the event the Company is required to take any action to enforce any provision of this agreement, and provided that the Company\nprevails in any such action, then I shall be liable for the Company’s reasonable expenses, including attorneys fees, associated with any such action.\n9.  Liquidated Damages.\nI understand that in the event I breach any of the non-solicitation, nondisclosure, or non-competition provisions of this Agreement, the\nmonetary damages which the Company will sustain may be difficult to ascertain. I hereby agree that in the event of any such breach on my part, that\nI will be liable to the Company for liquidated damages in the amount of $25,000.00. I hereby acknowledge that said damages are reasonable, do not\nconstitute a penalty, and I further agree that I will not contest the reasonableness of said liquidated damages in any such action commenced by either\nparty with respect to this Agreement.\n10.  Equitable Relief.\nI acknowledge that any breach of this Agreement by me may give rise to irreparable injury to the Company, which may not be adequately\ncompensated by damages. Accordingly, in the event of a breach or threatened breach of any Sections 3 through 6 of this Agreement by me, the\nCompany shall have, in addition to any remedies it may have at law, the right to an injunction or other equitable relief to prevent the violation of its\nrights hereunder.\n11. Miscellaneous.\n(a) Any action or proceeding brought by either party against the other arising out of or related to this Agreement shall be brought only in a\nstate or federal court of competent jurisdiction located within the Commonwealth of Massachusetts, and the parties hereby consent to the personal\njurisdiction of such courts.\n(b) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of\nthis Agreement.\n(c) This Agreement supersedes all previous agreements, written or oral, between the Company and me relating to the subject matter of this\nAgreement. This Agreement may not be modified, changed or discharged in whole or in part, except by and agreement in writing signed by the\nCompany and me. I agree that any subsequent change or changes in the scope of or compensation for my engagement with the Company, the\nduration of my engagement with the Company, or the reasons for the cessation or termination of my engagement with the Company shall not affect\nthe validity or scope of this Agreement.\n(d) No delay or omission by the Company in exercising any rights under this Agreement shall operate as a waiver of that or any other right. A\nwaiver or consent given by the Company on any one occasion is effective only in that instance and shall not be construed as a bar to or waiver of any\nright on any other occasion.\n(e) I expressly consent to be bound by the provisions of this Agreement for the benefit of the Company or any parent, subsidiary or affiliate or\nsuccessor thereof without the necessity for any separate execution of this Agreement in favor of such parent, subsidiary or affiliate.\n(f) I acknowledge and agree that the covenants made by me under this Agreement are to be construed as independent agreements on my part,\nand the existence of any claims or causes of action which I might have against the Company shall not constitute a defense to the enforcement by the\nCompany or its assigns of the provisions of this Agreement.\n(g) I acknowledge that my execution of this Agreement is supported by adequate consideration, including but not limited to the\ncommencement and continuation of my employment with the Company.\n(h) T acknowledge that I have had the opportunity to consult with legal counsel of my own choosing prior to my execution of this Agreement,\nand I understand the legal significance of this representation.\n(i) This Agreement is governed by the laws of the Commonwealth of Massachusetts without giving effect to the conflict of laws provisions\nthereof.\n(j) This Agreement shall ensure to the benefit of the Company’s successors, assigns, subsidiaries and affiliates.\nExecuted as a document under seal on the dates as below appear.\nDate:\nSignature:\nAgreed to and Accepted by VistaPrint USA, Inc.\nBy: Date:\nTitle:	EX-10.18 10 dex 1018.htm FORM OF CONFIDENTIAL INFORMATION AND NON-COMPETITION AGREEMENT\nExhibit 10.18\nVISTAPRINT USA, INC. CONFIDENTIAL INFORMATION\nAND NON-COMPETITION AGREEMENT\nFor good and valid consideration, the receipt and sufficiency of which I hereby acknowledge, VistaPrint USA, Inc. (the "Company") and I hereby\nagree as follows:\n1. Definitions.\nFor purpose of this agreement, the following terms shall have this following meaning:\n(a) "Customer" shall mean any individual, firm, corporation, federal, state or other government agency or other entity (any of the foregoing\nbeing hereinafter referred to as "Person") who purchased any of the Company's products during the twelve month period immediately preceding the\neffective date by engagement as an employee or a consultant with the terminates, regardless of whether I induced or solicited such Person to give its\npatronage or business to the Company.\n(b) "Partner" shall mean any alliance, affiliate, distributor, partner, or other third parties with whom the Company identifies, markets to or\nserves Customers.\n(c) "Prospective Customer" and "Prospective Partner" shall mean any Person with whom or which negotiations or discussions occurred during\nthe 90 day period immediately preceding the effective date my engagement as an employee or consultant with the Company terminates, concerning\nthe purchase or joint marketing of any of the Company's products by such Person or by such Person's Customers, regardless of whether I solicited\nsuch Person to give its patronage or business to the Company.\n(d) "Competing Business" shall mean any business with offices in the United States, The United Kingdom, France or Germany, which\nprovides commercial printing products, such as business cards, stationary, brochures, presentation folders, sell sheets, postcards or the like, through\nthe use of Internet based technology. By example, some of the Company's competitors include iPrint.com, Imagex.com, Kinko's, Easiset.com,\nNewBeginnings.com Printing.com, and Printonthenet.com.\n2.\nCompany's Business Operations.\nThe Company's business operations focus on providing a wide array of print products used by businesses and institutions of all types, which\nproducts employ advanced Internet-based technology and processes. The Company has patents pending worldwide on certain aspects of technology,\nwhich is collectively known as and will hereinafter be referred to as the "VistaPrint Technology." The Company has offices in the United States,\nFrance, German and the United Kingdom and markets and sells its products both nationally and internationally.\nDue to the highly competitive nature of the e-commerce enabled printing industry and market in which the Company operates, I understand\nthat the protections afforded to the Company by this Agreement, including but not limited to the protection of its Customers, Partners and other\nproprietary information, are critical to the success of the Company. I further recognize that the temporary restrictions imposed by this Agreement\nupon my ability to solicit Customers or Partners in competition with the Company, or to become employed by a competing business, are reasonable\nand necessary to protect the Company in this highly competitive marketplace.\n3.\nProprietary Information.\nI recognize that my relationship with the company is one of high trust and confidence by reason of my access to and contact with the trade\nsecrets and confidential and proprietary information of the Company. I acknowledge that the identity of the Company's Customers and Partners as\nwell as the suppliers who provide the Company with operational support are deemed to be confidential by the Company. I shall use my best efforts\nto\nprotect any and all confidential, proprietary, or secret information relating to the products, services, Customers, or business operations (including but\nnot limited to all\nVistaPrint Technology and other processes and systems used by the Company), or activities of the Company (collectively, Proprietary Information").\nI shall not during my engagement as an employee or consultant by the Company or at any time thereafter, disclose to others or use for my own\nbenefit or for the benefit of another any Proprietary Information (whether or not learned, obtained or developed solely by me or jointly with others).\nMy undertakings and obligations under this section 3 shall not apply, however, to any such information that (i) is or becomes in the public domain\nthrough no action or failure to act on my part, (ii) is generally disclosed to third parties by the Company without restrictions on such third parties or\n(iii) is approved for release by written authorization of the President of the Company. Upon termination of my engagement or at any other time upon\nrequest, I shall promptly deliver to the Company all Proprietary Information and all notes, handbooks, manuals, memoranda, notebooks, drawings,\nrecords, files, electronic data, and other documents (and all copies or reciprocations of such materials) in my possession or under the my control,\nwhether prepared by me or others that are or that contain Proprietary Information or other information or material that is secret, confidential, or\nproprietary to the Company, all of which I acknowledge is the sole property of the Company.\n4.\nOther Obligations.\nI acknowledge that the Company from time to time may have agreements with other persons or entities or with the U.S. Government, or\nagencies thereof, that impose obligations or restrictions on the Company regarding the confidential nature of such work. I agree to be bound by all\nsuch obligations of the company, including but not limited to the execution of such Non-Disclosure Agreements as may be required by those other\nentities.\n5. Nonsolicitation.\nDuring the course of my engagement as an employee or consultant with the Company and for a period of one (1) year after the termination of\nmy engagement with Company for any reason whatsoever, I shall not, otherwise than on behalf of the company, directly or indirectly as employee,\nowner, consultant, officer, director or partner, through stock ownership, investment of capital, lending of money or property, rendering of services\nor\notherwise, either alone or in association with others, or through family members, (i) solicit any of the employees of the Company to leave the\nemploy of the Company, (ii) solicit any Customer or Prospective Customer for any purpose that could reasonable considered to be competitive to the\nCompany, or (iii) solicit any Partner or Prospective Partner for any purpose that would be competitive with solicitations of such Partners by the\nCompany.\n6. Noncompetition.\n(a) During the course of my engagement as an employee or consultant with the Company, and for a period of 180 days after the termination of\nmy employment with the Company for any reason whatsoever, I shall not, without the express written consent of the Company engage or become\ninterested, directly or indirectly, as employee, owner, consultant, officer, director, or partner, through stock ownership, investment of capital, lending\nof money or property, rendering of services or otherwise, either alone or in association with others, or through family members, in the operation of\nany Competing Business (as defined in Section 1(d)) otherwise than on behalf of the Company.\n(b) My holding of any investment in any business or enterprise other than the Company shall not be deemed to be a violation of this section 5\nif such investment does not constitute over 5 percent of the outstanding issue of such security and I do not otherwise accept employment with, act as\na consultant to, become an officer, director or partner of, or otherwise become actively associated with the issuer of such security.\n7. Reasonableness.\nI recognize, acknowledge and agree that the company engages in extensive marketing and conducts business throughout the world and that the\nforegoing limitations are reasonable and properly required for the adequate protection of the Company's business and do not preclude me from\npursuing my\nlivelihood. However, if any such limitation is found by any court of competent jurisdiction to be unenforceable because it extends for too long\na\nperiod of time or over too great a range of activities or on too broad a geographic area, it shall be interpreted to extend only over the maximum\nperiod of time, range of activities or geographic areas as to which it may be enforceable.\n8.\nBreach.\nIf I violate any provision of this Agreement, then the time limitations set forth in this Agreement shall be extended for a period of time equal to\nthe period of time during which such breach occurs, and, in the event the Company is required to seek relief from such breach before any court,\nboard or other tribunal, then the time limitations shall be extended for a period of time of time equal to the pendency of such proceedings, including\nall appeals. In the event the Company is required to take any action to enforce any provision of this agreement, and provided that the Company\nprevails in any such action, then I shall be liable for the Company's reasonable expenses, including attorneys fees, associated with any such action.\n9.\nLiquidated Damages.\nI\nunderstand that in the event I breach any of the non-solicitation, nondisclosure, or non-competition provisions of this Agreement, the\nmonetary damages which the Company will sustain may be difficult to ascertain. I hereby agree that in the event of any such breach on my part, that\nI\nwill be liable to the Company for liquidated damages in the amount of $25,000.00. I hereby acknowledge that said damages are reasonable, do not\nconstitute a penalty, and I further agree that I will not contest the reasonableness of said liquidated damages in any such action commenced by either\nparty with respect to this Agreement.\n10. Equitable Relief.\nI acknowledge that any breach of this Agreement by me may give rise to irreparable injury to the Company, which may not be adequately\ncompensated by damages. Accordingly, in the event of a breach or threatened breach of any Sections 3 through 6 of this Agreement by me, the\nCompany shall have, in addition to any remedies it may have at law, the right to an injunction or other equitable relief to prevent the violation of its\nrights hereunder.\n11. Miscellaneous.\n(a) Any action or proceeding brought by either party against the other arising out of or related to this Agreement shall be brought only in\na\nstate or federal court of competent jurisdiction located within the Commonwealth of Massachusetts, and the parties hereby consent to the personal\njurisdiction of such courts.\n(b) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of\nthis Agreement.\n(c) This Agreement supersedes all previous agreements, written or oral, between the Company and me relating to the subject matter of this\nAgreement. This Agreement may not be modified, changed or discharged in whole or in part, except by and agreement in writing signed by the\nCompany and me. I agree that any subsequent change or changes in the scope of or compensation for my engagement with the Company, the\nduration of my engagement with the Company, or the reasons for the cessation or termination of my engagement with the Company shall not affect\nthe validity or scope of this Agreement.\n(d) No delay or omission by the Company in exercising any rights under this Agreement shall operate as a waiver of that or any other right. A\nwaiver or consent given by the Company on any one occasion is effective only in that instance and shall not be construed as a bar to or waiver of any\nright on any other occasion.\n(e) I expressly consent to be bound by the provisions of this Agreement for the benefit of the Company or any parent, subsidiary or affiliate\nor\nsuccessor thereof without the necessity for any separate execution of this Agreement in favor of such parent, subsidiary or affiliate.\n(f) I acknowledge and agree that the covenants made by me under this Agreement are to be construed as independent agreements on my part,\nand the existence of any claims or causes of action which I might have against the Company shall not constitute a defense to the enforcement by the\nCompany or its assigns of the provisions of this Agreement.\n(g) I acknowledge that my execution of this Agreement is supported by adequate consideration, including but not limited to the\ncommencement and continuation of my employment with the Company.\n(h) I acknowledge that I have had the opportunity to consult with legal counsel of my own choosing prior to my execution of this Agreement,\nand I understand the legal significance of this representation\n(i) This Agreement is governed by the laws of the Commonwealth of Massachusetts without giving effect to the conflict of laws provisions\nthereof.\n(j) This Agreement shall ensure to the benefit of the Company's successors, assigns, subsidiaries and affiliates.\nExecuted as a document under seal on the dates as below appear.\nDate:\nSignature:\nAgreed to and Accepted by VistaPrint USA, Inc.\nBy:\nDate:\nTitle:	EX-10.18 10 dex1018.htm FORM OF CONFIDENTIAL INFORMATION AND NON-COMPETITION AGREEMENT\nExhibit 10.18\nVISTAPRINT USA, INC. CONFIDENTIAL INFORMATION\nAND NON-COMPETITION AGREEMENT\nFor good and valid consideration, the receipt and sufficiency of which I hereby acknowledge, VistaPrint USA, Inc. (the “Company”) and I hereby\nagree as follows:\n1. Definitions.\nFor purpose of this agreement, the following terms shall have this following meaning:\n(a) “Customer” shall mean any individual, firm, corporation, federal, state or other government agency or other entity (any of the foregoing\nbeing hereinafter referred to as “Person”) who purchased any of the Company’s products during the twelve month period immediately preceding the\neffective date by engagement as an employee or a consultant with the terminates, regardless of whether I induced or solicited such Person to give its\npatronage or business to the Company.\n(b) “Partner” shall mean any alliance, affiliate, distributor, partner, or other third parties with whom the Company identifies, markets to or\nserves Customers.\n(c) “Prospective Customer” and “Prospective Partner” shall mean any Person with whom or which negotiations or discussions occurred during\nthe 90 day period immediately preceding the effective date my engagement as an employee or consultant with the Company terminates, concerning\nthe purchase or joint marketing of any of the Company’s products by such Person or by such Person’s Customers, regardless of whether I solicited\nsuch Person to give its patronage or business to the Company.\n(d) “Competing Business” shall mean any business with offices in the United States, The United Kingdom, France or Germany, which\nprovides commercial printing products, such as business cards, stationary, brochures, presentation folders, sell sheets, postcards or the like, through\nthe use of Internet based technology. By example, some of the Company’s competitors include iPrint.com, Imagex.com, Kinko’s, Easiset.com,\nNewBeginnings.com, Printing.com, and Printonthenet.com.\n2. Company’s Business Operations.\nThe Company’s business operations focus on providing a wide array of print products used by businesses and institutions of all types, which\nproducts employ advanced Internet-based technology and processes. The Company has patents pending worldwide on certain aspects of technology,\nwhich is collectively known as and will hereinafter be referred to as the “VistaPrint Technology.” The Company has offices in the United States,\nFrance, German and the United Kingdom and markets and sells its products both nationally and internationally.\nDue to the highly competitive nature of the e-commerce enabled printing industry and market in which the Company operates, I understand\nthat the protections afforded to the Company by this Agreement, including but not limited to the protection of its Customers, Partners and other\nproprietary information, are critical to the success of the Company. I further recognize that the temporary restrictions imposed by this Agreement\nupon my ability to solicit Customers or Partners in competition with the Company, or to become employed by a competing business, are reasonable\nand necessary to protect the Company in this highly competitive marketplace.\n3. Proprietary Information.\nI recognize that my relationship with the company is one of high trust and confidence by reason of my access to and contact with the trade\nsecrets and confidential and proprietary information of the Company. I acknowledge that the identity of the Company’s Customers and Partners as\nwell as the suppliers who provide the Company with operational support are deemed to be confidential by the Company. I shall use my best efforts to\nprotect any and all confidential, proprietary, or secret information relating to the products, services, Customers, or business operations (including but\nnot limited to all\nVistaPrint Technology and other processes and systems used by the Company), or activities of the Company (collectively, Proprietary Information”).\nI shall not during my engagement as an employee or consultant by the Company or at any time thereafter, disclose to others or use for my own\nbenefit or for the benefit of another any Proprietary Information (whether or not learned, obtained or developed solely by me or jointly with others).\nMy undertakings and obligations under this section 3 shall not apply, however, to any such information that : (i) is or becomes in the public domain\nthrough no action or failure to act on my part, (ii) is generally disclosed to third parties by the Company without restrictions on such third parties or\n(iii) is approved for release by written authorization of the President of the Company. Upon termination of my engagement or at any other time upon\nrequest, I shall promptly deliver to the Company all Proprietary Information and all notes, handbooks, manuals, memoranda, notebooks, drawings,\nrecords, files, electronic data, and other documents (and all copies or reciprocations of such materials) in my possession or under the my control,\nwhether prepared by me or others that are or that contain Proprietary Information or other information or material that is secret, confidential, or\nproprietary to the Company, all of which I acknowledge is the sole property of the Company.\n4. Other Obligations.\nI acknowledge that the Company from time to time may have agreements with other persons or entities or with the U.S. Government, or\nagencies thereof, that impose obligations or restrictions on the Company regarding the confidential nature of such work. I agree to be bound by all\nsuch obligations of the company, including but not limited to the execution of such Non-Disclosure Agreements as may be required by those other\nentities.\n5. Nonsolicitation.\nDuring the course of my engagement as an employee or consultant with the Company and for a period of one (1) year after the termination of\nmy engagement with Company for any reason whatsoever, I shall not, otherwise than on behalf of the company, directly or indirectly as employee,\nowner, consultant, officer, director or partner, through stock ownership, investment of capital, lending of money or property, rendering of services or\notherwise, either alone or in association with others, or through family members, (i) solicit any of the employees of the Company to leave the\nemploy of the Company, (ii) solicit any Customer or Prospective Customer for any purpose that could reasonable considered to be competitive to the\nCompany, or (iii) solicit any Partner or Prospective Partner for any purpose that would be competitive with solicitations of such Partners by the\nCompany.\n6. Noncompetition.\n(a) During the course of my engagement as an employee or consultant with the Company, and for a period of 180 days after the termination of\nmy employment with the Company for any reason whatsoever, I shall not, without the express written consent of the Company engage or become\ninterested, directly or indirectly, as employee, owner, consultant, officer, director, or partner, through stock ownership, investment of capital, lending\nof money or property, rendering of services or otherwise, either alone or in association with others, or through family members, in the operation of\nany Competing Business (as defined in Section 1(d)) otherwise than on behalf of the Company.\n(b) My holding of any investment in any business or enterprise other than the Company shall not be deemed to be a violation of this section 5\nif such investment does not constitute over 5 percent of the outstanding issue of such security and I do not otherwise accept employment with, act as\na consultant to, become an officer, director or partner of, or otherwise become actively associated with the issuer of such security.\n7. Reasonableness.\nI recognize, acknowledge and agree that the company engages in extensive marketing and conducts business throughout the world and that the\nforegoing limitations are reasonable and properly required for the adequate protection of the Company’s business and do not preclude me from\npursuing my\nlivelihood. However, if any such limitation is found by any court of competent jurisdiction to be unenforceable because it extends for too long a\nperiod of time or over too great a range of activities or on too broad a geographic area, it shall be interpreted to extend only over the maximum\nperiod of time, range of activities or geographic areas as to which it may be enforceable.\n8. Breach.\nIf I violate any provision of this Agreement, then the time limitations set forth in this Agreement shall be extended for a period of time equal to\nthe period of time during which such breach occurs, and, in the event the Company is required to seek relief from such breach before any court,\nboard or other tribunal, then the time limitations shall be extended for a period of time of time equal to the pendency of such proceedings, including\nall appeals. In the event the Company is required to take any action to enforce any provision of this agreement, and provided that the Company\nprevails in any such action, then I shall be liable for the Company’s reasonable expenses, including attorneys fees, associated with any such action.\n9. Liquidated Damages.\nI understand that in the event I breach any of the non-solicitation, nondisclosure, or non-competition provisions of this Agreement, the\nmonetary damages which the Company will sustain may be difficult to ascertain. I hereby agree that in the event of any such breach on my part, that\nI will be liable to the Company for liquidated damages in the amount of $25,000.00. I hereby acknowledge that said damages are reasonable, do not\nconstitute a penalty, and I further agree that I will not contest the reasonableness of said liquidated damages in any such action commenced by either\nparty with respect to this Agreement.\n10. Equitable Relief.\nI acknowledge that any breach of this Agreement by me may give rise to irreparable injury to the Company, which may not be adequately\ncompensated by damages. Accordingly, in the event of a breach or threatened breach of any Sections 3 through 6 of this Agreement by me, the\nCompany shall have, in addition to any remedies it may have at law, the right to an injunction or other equitable relief to prevent the violation of its\nrights hereunder.\n11. Miscellaneous.\n(a) Any action or proceeding brought by either party against the other arising out of or related to this Agreement shall be brought only in a\nstate or federal court of competent jurisdiction located within the Commonwealth of Massachusetts, and the parties hereby consent to the personal\njurisdiction of such courts.\n(b) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of\nthis Agreement.\n(c) This Agreement supersedes all previous agreements, written or oral, between the Company and me relating to the subject matter of this\nAgreement. This Agreement may not be modified, changed or discharged in whole or in part, except by and agreement in writing signed by the\nCompany and me. I agree that any subsequent change or changes in the scope of or compensation for my engagement with the Company, the\nduration of my engagement with the Company, or the reasons for the cessation or termination of my engagement with the Company shall not affect\nthe validity or scope of this Agreement.\n(d) No delay or omission by the Company in exercising any rights under this Agreement shall operate as a waiver of that or any other right. A\nwaiver or consent given by the Company on any one occasion is effective only in that instance and shall not be construed as a bar to or waiver of any\nright on any other occasion.\n(e) I expressly consent to be bound by the provisions of this Agreement for the benefit of the Company or any parent, subsidiary or affiliate or\nsuccessor thereof without the necessity for any separate execution of this Agreement in favor of such parent, subsidiary or affiliate.\n(f) I acknowledge and agree that the covenants made by me under this Agreement are to be construed as independent agreements on my part,\nand the existence of any claims or causes of action which I might have against the Company shall not constitute a defense to the enforcement by the\nCompany or its assigns of the provisions of this Agreement.\n(g) I acknowledge that my execution of this Agreement is supported by adequate consideration, including but not limited to the\ncommencement and continuation of my employment with the Company.\n(h) I acknowledge that I have had the opportunity to consult with legal counsel of my own choosing prior to my execution of this Agreement,\nand I understand the legal significance of this representation.\n(i) This Agreement is governed by the laws of the Commonwealth of Massachusetts without giving effect to the conflict of laws provisions\nthereof.\n(j) This Agreement shall ensure to the benefit of the Company’s successors, assigns, subsidiaries and affiliates.\nExecuted as a document under seal on the dates as below appear.\nDate:\nSignature:\nAgreed to and Accepted by VistaPrint USA, Inc.\nBy:\nDate:\nTitle:
+7c2d01f37f271540ebc035d46ee312cd.pdf	effective_date jurisdiction party term	EX-10.17 9 dex1017.htm FORM OF INVENTION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.17\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement is made between VistaPrint USA, Incorporated, a Delaware corporation (hereinafter referred to collectively with its parent\ncompany, affiliates and subsidiaries as the “Company”), and\n(the “Employee”).\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee agree as\nfollows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property\nof the Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods,\ntechniques, formulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data,\ncomputer programs, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any\npurposes (other than in the performance of his/her duties as an employee of the Company) without written approval by an officer of the\nCompany, either during or after his/her employment with the Company, unless and until such Proprietary Information has become public\nknowledge without fault by the Employee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program\nlistings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee or\nothers, which shall come into his/her custody or possession, shall be and are the exclusive property of the Company to be used by the\nEmployee only in the performance of his/her duties for the Company. All such materials or copies thereof and all tangible property of the\nCompany in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (i) a request by the Company or\n(ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such\ntangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in paragraphs (a)\nand (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of\ninformation, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2. Developments.\n(a) The Employee will make full and prompt disclosure to the Company of all inventions, improvements, discoveries, methods,\ndevelopments, software, graphic designs and works of authorship, whether patentable or not, which are created, made, conceived or reduced to\npractice by him/her or under his/her direction or jointly with others during his/her employment by the Company, whether or not during normal\nworking hours or on the premises of the Company (all of which are collectively referred to in this Agreement as “Developments”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all\nhis/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the Company and which are made and conceived by the Employee not during normal working hours, not on the Company’s\npremises and not using the Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign\ncertain classes of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules\nand/or the Company agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with respect\nto the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States and\nforeign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interests in any Development. The Employee further agrees that if the Company is\nunable, after reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be\nentitled to execute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and\nappoints each executive officer of the Company as his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take\nany and all actions as the Company may deem necessary or desirable in order to protect its rights and interests in any Development, under the\nconditions described in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the\nterms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the business of such\nprevious employer or any other party or to refrain from soliciting employees, customers or suppliers of such previous employer or other party. The\nEmployee further represents that his/her performance of all the terms of this Agreement and the performance of his/her duties as an employee of the\nCompany do not and will not breach any agreement with any prior employer or other party to which the Employee is a party (including without\nlimitation any nondisclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the Company to use\nany confidential or proprietary information or material belonging to any previous employer or others.\n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions\nwhich are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such agreements.\n5. No Employment Contract.\nThe Employee understand that this Agreement does not constitute a contract of employment and does not imply that his/her employment will\ncontinue for any period of time.\n-2-\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject\nmatter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing\nsigned by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation after the\nsigning of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the Company\nand its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right.\nA waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary\nor affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at the time of\nsuch transfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and are\nconsidered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in\naddition to such other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding\nwhich is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of\nthe Commonwealth of Massachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee\neach consents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nVISTAPRINT USA, INCORPORATED\nDate:\nBy:\nDate:\n-3-	EX-10.17 9 dex1017.htm FORM OF INVENTION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.17\nINVENTION AND NON-DISCI.OSURE AGREEMENT\nThis Agreement is made between VistaPrint USA, Incorporated, a Delaware corporation (hereinafter referred to collectively with its parent\ncompany, affiliates and subsidiaries as the “Company™), and (the “Employee”).\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee agree as\nfollows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information™) is and shall be the exclusive property\nof the Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods,\ntechniques, formulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data,\ncomputer programs, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any\npurposes (other than in the performance of his/her duties as an employee of the Company) without written approval by an officer of the\nCompany, either during or after his/her employment with the Company, unless and until such Proprietary Information has become public\nknowledge without fault by the Employee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program\nlistings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee or\nothers, which shall come into his/her custody or possession, shall be and are the exclusive property of the Company to be used by the\nEmployee only in the performance of his/her duties for the Company. All such materials or copies thereof and all tangible property of the\nCompany in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (i) a request by the Company or\n(ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such\ntangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in paragraphs (a)\nand (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of\ninformation, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2. Developments.\n \n \n(a) The Employee will make full and prompt disclosure to the Company of all inventions, improvements, discoveries, methods,\ndevelopments, software, graphic designs and works of authorship, whether patentable or not, which are created, made, conceived or reduced to\npractice by him/her or under his/her direction or jointly with others during his/her employment by the Company, whether or not during normal\nworking hours or on the premises of the Company (all of which are collectively referred to in this Agreement as “Developments”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all\nhis/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the Company and which are made and conceived by the Employee not during normal working hours, not on the Company’s\npremises and not using the Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign\ncertain classes of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules\nand/or the Company agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with respect\nto the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States and\nforeign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interests in any Development. The Employee further agrees that if the Company is\nunable, after reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be\nentitled to execute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and\nappoints each executive officer of the Company as his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take\nany and all actions as the Company may deem necessary or desirable in order to protect its rights and interests in any Development, under the\nconditions described in this sentence.\n3.  Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the\nterms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the business of such\nprevious employer or any other party or to refrain from soliciting employees, customers or suppliers of such previous employer or other party. The\nEmployee further represents that his/her performance of all the terms of this Agreement and the performance of his/her duties as an employee of the\nCompany do not and will not breach any agreement with any prior employer or other party to which the Employee is a party (including without\nlimitation any nondisclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the Company to use\nany confidential or proprietary information or material belonging to any previous employer or others.\n4.  United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions\nwhich are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such agreements.\n5. No Employment Contract.\nThe Employee understand that this Agreement does not constitute a contract of employment and does not imply that his/her employment will\ncontinue for any period of time.\n_2-\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject\nmatter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing\nsigned by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation after the\nsigning of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the Company\nand its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right.\nA waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary\nor affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at the time of\nsuch transfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and are\nconsidered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in\naddition to such other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding\nwhich is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of\nthe Commonwealth of Massachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee\neach consents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nVISTAPRINT USA, INCORPORATED\nDate: By:\nDate:	EX-10.17 9 FORM OF INVENTION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.17\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement is made between VistaPrint USA, Incorporated, a Delaware corporation (hereinafter referred to collectively with its parent\ncompany, affiliates and subsidiaries as the "Company"), and\n(the "Employee").\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee agree as\nfollows:\n1.\nProprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany's business, business relationships or financial affairs (collectively, "Proprietary Information") is and shall be the exclusive property\nof the Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods,\ntechniques, formulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data,\ncomputer programs, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any\npurposes (other than in the performance of his/her duties as an employee of the Company) without written approval by an officer of the\nCompany, either during or after his/her employment with the Company, unless and until such Proprietary Information has become public\nknowledge without fault by the Employee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program\nlistings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee or\nothers, which shall come into his/her custody or possession, shall be and are the exclusive property of the Company to be used by the\nEmployee only in the performance of his/her duties for the Company. All such materials or copies thereof and all tangible property of the\nCompany in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (i) a request by the Company or\n(ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such\ntangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in paragraphs (a)\nand (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of\ninformation, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2. Developments.\n(a) The Employee will make full and prompt disclosure to the Company of all inventions, improvements, discoveries, methods,\ndevelopments, software, graphic designs and works of authorship, whether patentable or not, which are created, made, conceived or reduced to\npractice by him/her or under his/her direction or jointly with others during his/her employment by the Company, whether or not during normal\nworking hours or on the premises of the Company (all of which are collectively referred to in this Agreement as "Developments")\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all\nhis/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the Company and which are made and conceived by the Employee not during normal working hours, not on the Company's\npremises and not using the Company's tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign\ncertain classes of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules\nand/or the Company agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with respect\nto the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States and\nforeign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interests in any Development. The Employee further agrees that if the Company is\nunable, after reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be\nentitled to execute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and\nappoints each executive officer of the Company as his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take\nany and all actions as the Company may deem necessary or desirable in order to protect its rights and interests in any Development, under the\nconditions described in this sentence.\n3.\nOther Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the\nterms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the business of such\nprevious employer or any other party or to refrain from soliciting employees, customers or suppliers of such previous employer or other party. The\nEmployee further represents that his/her performance of all the terms of this Agreement and the performance of his/her duties as an employee of the\nCompany do not and will not breach any agreement with any prior employer or other party to which the Employee is a party (including without\nlimitation any nondisclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the Company to use\nany confidential or proprietary information or material belonging to any previous employer or others.\n4.\nUnited States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions\nwhich are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such agreements.\n5.\nNo Employment Contract.\nThe Employee understand that this Agreement does not constitute a contract of employment and does not imply that his/her employment will\ncontinue for any period of time.\n- 2\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject\nmatter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing\nsigned by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation after the\nsigning of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee's heirs, executors and administrators and will inure to the benefit of the Company\nand its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right.\nA waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary\nor affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at the time of\nsuch transfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and are\nconsidered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in\naddition to such other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding\nwhich is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court\nof\nthe Commonwealth of Massachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee\neach consents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nVISTAPRINT USA, INCORPORATED\nDate:\nBy:\nDate:\n3	EX-10.17 9 dex1017.htm FORM OF INVENTION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.17\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement is made between VistaPrint USA, Incorporated, a Delaware corporation (hereinafter referred to collectively with its parent\ncompany, affiliates and subsidiaries as the “Company”), and\n(the “Employee”).\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee agree as\nfollows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property\nof the Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods,\ntechniques, formulas, compositions, compounds, projects, developments, plans, research data, clinical data, financial data, personnel data,\ncomputer programs, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any\npurposes (other than in the performance of his/her duties as an employee of the Company) without written approval by an officer of the\nCompany, either during or after his/her employment with the Company, unless and until such Proprietary Information has become public\nknowledge without fault by the Employee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks, program\nlistings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee or\nothers, which shall come into his/her custody or possession, shall be and are the exclusive property of the Company to be used by the\nEmployee only in the performance of his/her duties for the Company. All such materials or copies thereof and all tangible property of the\nCompany in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (i) a request by the Company or\n(ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such\ntangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in paragraphs (a)\nand (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of\ninformation, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2. Developments.\n(a) The Employee will make full and prompt disclosure to the Company of all inventions, improvements, discoveries, methods,\ndevelopments, software, graphic designs and works of authorship, whether patentable or not, which are created, made, conceived or reduced to\npractice by him/her or under his/her direction or jointly with others during his/her employment by the Company, whether or not during normal\nworking hours or on the premises of the Company (all of which are collectively referred to in this Agreement as “Developments”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all\nhis/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the Company and which are made and conceived by the Employee not during normal working hours, not on the Company’s\npremises and not using the Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign\ncertain classes of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules\nand/or the Company agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with respect\nto the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States and\nforeign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interests in any Development. The Employee further agrees that if the Company is\nunable, after reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be\nentitled to execute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and\nappoints each executive officer of the Company as his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take\nany and all actions as the Company may deem necessary or desirable in order to protect its rights and interests in any Development, under the\nconditions described in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the\nterms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary\ninformation in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the business of such\nprevious employer or any other party or to refrain from soliciting employees, customers or suppliers of such previous employer or other party. The\nEmployee further represents that his/her performance of all the terms of this Agreement and the performance of his/her duties as an employee of the\nCompany do not and will not breach any agreement with any prior employer or other party to which the Employee is a party (including without\nlimitation any nondisclosure or non-competition agreement), and that the Employee will not disclose to the Company or induce the Company to use\nany confidential or proprietary information or material belonging to any previous employer or others.\n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions\nwhich are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such agreements.\n5. No Employment Contract.\nThe Employee understand that this Agreement does not constitute a contract of employment and does not imply that his/her employment will\ncontinue for any period of time.\n-2-\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject\nmatter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing\nsigned by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation after the\nsigning of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the Company\nand its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right.\nA waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any subsidiary\nor affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be re-signed at the time of\nsuch transfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and are\nconsidered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in\naddition to such other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding\nwhich is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced only in a court of\nthe Commonwealth of Massachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee\neach consents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nVISTAPRINT USA, INCORPORATED\nDate:\nBy:\nDate:\n-3-
+7c829782f18b4e438aad3f8303c8b6f7.pdf	effective_date jurisdiction party term	EX-10.18 2 a11-25732_1ex10d18.htm EX-10.18\nExhibit 10.18\nUSANA HEALTH SCIENCES, INC.\nCONFIDENTIALITY, NON-DISCLOSURE\nAND NON-SOLICITATION AGREEMENT\nIn consideration of employment or continued employment by USANA Health Sciences, Inc. or any of its affiliates or subsidiaries\n(collectively, “USANA”), the compensation paid by USANA from time to time, and other good and valuable consideration, the undersigned\nemployee of USANA hereby represents to and agrees with USANA as follows:\n1. Confidential Information. I understand that USANA owns or might acquire confidential or secret information (“Confidential\nInformation”) that is valuable to USANA’s business. Confidential Information includes but is not limited to trade secrets, copyrighted material,\nwritten material, pictures, logos, processes, formulas, computer programs, data, know-how, inventions, improvements, techniques, marketing\nplans, product plans, strategies, forecasts, supplier information, customer lists, and any other type of information, which is not generally known\nand is owned by USANA or its customers or suppliers. Confidential information specifically refers to information I may view or have access to\nor information I create or assist in creating as part of my job at USANA.\n2.\nAssignment of Confidential Information and Inventions. I specifically agree that work I complete as an employee of USANA\nis work made for hire and all rights in the work belong to USANA. In that regard, I hereby assign to USANA all of my rights in all Confidential\nInformation, including all discoveries, inventions and other technology, all works of authorship, all data and information, and all intellectual\nproperty rights therein, which are made, discovered, developed, created, or conceived, in whole or in part, previously or hereafter by me\n(i) during the course of and within the scope of my employment with USANA, or (b) with the aid of Confidential Information or the facilities,\nresources or property of USANA.\n3.\nConfidentiality and Non-Disclosure. I understand that my employment with USANA creates a relationship of trust and\nconfidence between me and USANA with respect to the Confidential Information about which I may learn or that I help to develop or that is\notherwise disclosed to me by USANA during the period of my employment with USANA. This is especially true where USANA might share\nwith me and other employees USANA’s plans to introduce new products or programs. At all times during and after my employment with\nUSANA, I will keep in strict confidence all Confidential Information and I will not use or disclose any Confidential Information, nor permit\nothers to use or disclose it in any way, without USANA’s written permission, except as may be necessary to perform my duties as a USANA\nemployee.\nI acknowledge and agree that USANA is the sole and exclusive owner of all rights in and to its Confidential Information, and I agree\nthat upon termination of my employment with USANA I will immediately return to USANA all Confidential Information in my possession, as\nwell as any and all copies, reproductions or summaries thereof.\n4.\nNon-Solicitation. I agree that during my period of employment with USANA, and for a period of [one] year thereafter, I will\nnot directly or indirectly (a) call on, solicit, take away, or attempt to take away for my benefit or the benefit of any other person or entity, any\ncustomer, supplier, or client of USANA, or (b) solicit, take away, or attempt to take away, for my benefit or the benefit of any other person or\nentity, any employee or officer of USANA.\n5.\nNon-Competition. In exchange for the benefits of continued employment, I agree not to accept employment with, engage in or\nparticipate, directly or indirectly, individually or as an officer, director, employee, shareholder, consultant, partner, joint venture, agent, equity\nowner, distributor or in any other capacity whatsoever, with any direct sales or multi-level marketing company that competes with USANA,\nwhether for market share of products or for distributors in territory in which USANA is doing business. The restrictions set forth in this\nparagraph shall remain in effect during my employment with USANA and during a period of six months following the termination of my\nemployment. Within fifteen days of termination of my employment, USANA shall notify me whether it elects to release me from the obligations\nset forth in this paragraph. For the period following the termination of employment during which the restrictive covenants in this paragraph\nremain in effect, USANA shall pay me a sum equal to fifty percent of my base salary at termination of employment, less applicable withholding\ntaxes and excluding all incentive compensation and other benefit payments. Payment may be made in periodic installments in accordance with\nUSANA’s regular payroll practices.\n6.\nNon-Disparagement. I will not in an way, directly or indirectly, at any time during employment or after either voluntary or\ninvoluntary employment termination, commercially disparage USANA, its products, employees or distributors.\n7.\nNo Contract of Employment. I acknowledge and understand that (i) this Agreement is not an employment agreement and does\nnot give me the right to be employed by USANA in any capacity, and (ii) nothing in this Agreement is intended to alter or change the terms or\nduration of my employment with USANA. I also understand that this Agreement does not supersede, void or otherwise limit USANA’s\nemployee policies relating to the confidentiality of business information as stated in the USANA Employee Handbook or my obligation as an\nemployee of USANA to adhere to these policies.\n8.\nGeneral. I acknowledge and agree that:\na.\nDue to the unique nature of this Agreement and my obligations regarding non-disclosure, non-use and assignment of\nConfidential Information and inventions, monetary damages alone will be an inadequate remedy for my breach of such obligations. As a result,\nin the event of my breach of this Agreement, I agree that USANA shall be entitled to obtain injunctive and other equitable relief to protect the\nconfidential nature of its Confidential Information, in addition to all other remedies which may be available at law or otherwise.\nb.\nThis Agreement shall be governed by and interpreted in accordance with the laws of the State of Utah and the parties\nagree to submit to the exclusive jurisdiction of the courts of the State of Utah to resolve any litigation to enforce this Agreement.\nc.\nIf any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable,\nthe same shall be deemed severed from the remainder of this Agreement and shall not cause the invalidity or unenforceability of the remainder of\nthis Agreement.\nThis Agreement will be effective as of the first date of my employment with USANA, namely\n,\n20.\n2\nEMPLOYEE\nUSANA Health Sciences, Inc.\nBy:\n(Employee’s Signature)\nJames Bramble\nName:\nTitle:\n(please print)\nGeneral Counsel\nDated:\nDated:\n3	EX-10.18 2 a11-25732_1ex10d18.htm EX-10.18\nExhibit 10.18\nUSANA HEALTH SCIENCES, INC.\nCONFIDENTIALITY, NON-DISCLOSURE\nAND NON-SOLICITATION AGREEMENT\nIn consideration of employment or continued employment by USANA Health Sciences, Inc. or any of its affiliates or subsidiaries\n(collectively, “USANA”), the compensation paid by USANA from time to time, and other good and valuable consideration, the undersigned\nemployee of USANA hereby represents to and agrees with USANA as follows:\n1. Confidential Information. I understand that USANA owns or might acquire confidential or secret information (“Confidential\nInformation”) that is valuable to USANA’s business. Confidential Information includes but is not limited to trade secrets, copyrighted material,\nwritten material, pictures, logos, processes, formulas, computer programs, data, know-how, inventions, improvements, techniques, marketing\nplans, product plans, strategies, forecasts, supplier information, customer lists, and any other type of information, which is not generally known\nand is owned by USANA or its customers or suppliers. Confidential information specifically refers to information I may view or have access to\nor information I create or assist in creating as part of my job at USANA.\n2. Assignment of Confidential Information and Inventions. I specifically agree that work I complete as an employee of USANA\nis work made for hire and all rights in the work belong to USANA. In that regard, I hereby assign to USANA all of my rights in all Confidential\nInformation, including all discoveries, inventions and other technology, all works of authorship, all data and information, and all intellectual\nproperty rights therein, which are made, discovered, developed, created, or conceived, in whole or in part, previously or hereafter by me\n(i) during the course of and within the scope of my employment with USANA, or (b) with the aid of Confidential Information or the facilities,\nresources or property of USANA.\n3. Confidentiality and Non-Disclosure. I understand that my employment with USANA creates a relationship of trust and\nconfidence between me and USANA with respect to the Confidential Information about which I may learn or that I help to develop or that is\notherwise disclosed to me by USANA during the period of my employment with USANA. This is especially true where USANA might share\nwith me and other employees USANA’s plans to introduce new products or programs. At all times during and after my employment with\nUSANA, I will keep in strict confidence all Confidential Information and I will not use or disclose any Confidential Information, nor permit\nothers to use or disclose it in any way, without USANA’s written permission, except as may be necessary to perform my duties as a USANA\nemployee.\nI acknowledge and agree that USANA is the sole and exclusive owner of all rights in and to its Confidential Information, and I agree\nthat upon termination of my employment with USANA I will immediately return to USANA all Confidential Information in my possession, as\nwell as any and all copies, reproductions or summaries thereof.\n4. Non-Solicitation. I agree that during my period of employment with USANA, and for a period of [one] year thereafter, I will\nnot directly or indirectly (a) call on, solicit, take away, or attempt to take away for my benefit or the benefit of any other person or entity, any\n \ncustomer, supplier, or client of USANA, or (b) solicit, take away, or attempt to take away, for my benefit or the benefit of any other person or\nentity, any employee or officer of USANA.\n5. Non-Competition. In exchange for the benefits of continued employment, I agree not to accept employment with, engage in or\nparticipate, directly or indirectly, individually or as an officer, director, employee, shareholder, consultant, partner, joint venture, agent, equity\nowner, distributor or in any other capacity whatsoever, with any direct sales or multi-level marketing company that competes with USANA,\nwhether for market share of products or for distributors in territory in which USANA is doing business. The restrictions set forth in this\nparagraph shall remain in effect during my employment with USANA and during a period of six months following the termination of my\nemployment. Within fifteen days of termination of my employment, USANA shall notify me whether it elects to release me from the obligations\nset forth in this paragraph. For the period following the termination of employment during which the restrictive covenants in this paragraph\nremain in effect, USANA shall pay me a sum equal to fifty percent of my base salary at termination of employment, less applicable withholding\ntaxes and excluding all incentive compensation and other benefit payments. Payment may be made in periodic installments in accordance with\nUSANA’s regular payroll practices.\n \n6. Non-Disparagement. I will not in an way, directly or indirectly, at any time during employment or after either voluntary or\ninvoluntary employment termination, commercially disparage USANA, its products, employees or distributors.\n7. No Contract of Employment. I acknowledge and understand that (i) this Agreement is not an employment agreement and does\nnot give me the right to be employed by USANA in any capacity, and (ii) nothing in this Agreement is intended to alter or change the terms or\nduration of my employment with USANA. I also understand that this Agreement does not supersede, void or otherwise limit USANA’s\nemployee policies relating to the confidentiality of business information as stated in the USANA Employee Handbook or my obligation as an\nemployee of USANA to adhere to these policies.\n8. General. I acknowledge and agree that:\na. Due to the unique nature of this Agreement and my obligations regarding non-disclosure, non-use and assignment of\nConfidential Information and inventions, monetary damages alone will be an inadequate remedy for my breach of such obligations. As a result,\nin the event of my breach of this Agreement, I agree that USANA shall be entitled to obtain injunctive and other equitable relief to protect the\nconfidential nature of its Confidential Information, in addition to all other remedies which may be available at law or otherwise.\nb. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Utah and the parties\nagree to submit to the exclusive jurisdiction of the courts of the State of Utah to resolve any litigation to enforce this Agreement.\nC. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable,\nthe same shall be deemed severed from the remainder of this Agreement and shall not cause the invalidity or unenforceability of the remainder of\nthis Agreement.\nThis Agreement will be effective as of the first date of my employment with USANA, namely ,\n \n20\n2\nEMPLOYEE USANA Health Sciences, Inc.\nBy:\n(Employee’s Signature) James Bramble\nName: Title:\n(please print) General Counsel\nDated: Dated:\n	EX-10.18 2 11-25732_1ex10d18.htm EX-10.18\nExhibit 10.18\nUSANA HEALTH SCIENCES, INC.\nCONFIDENTIALITY, NON-DISCLOSURE\nAND NON-SOLICITATION AGREEMENT\nIn consideration of employment or continued employment by USANA Health Sciences, Inc. or any of its affiliates or subsidiaries\n(collectively, "USANA"), the compensation paid by USANA from time to time, and other good and valuable consideration, the undersigned\nemployee of USANA hereby represents to and agrees with USANA as follows:\n1.\nConfidential Information. I understand that USANA owns or might acquire confidential or secret information ("Confidential\nInformation") that is valuable to USANA'S business. Confidential Information includes but is not limited to trade secrets, copyrighted material,\nwritten material, pictures, logos, processes, formulas, computer programs, data, know-how, inventions, improvements, techniques, marketing\nplans, product plans, strategies, forecasts, supplier information, customer lists, and any other type of information, which is not generally known\nand is owned by USANA or its customers or suppliers. Confidential information specifically refers to information I may view or have access to\nor information I create or assist in creating as part of my job at USANA.\n2.\nAssignment of Confidential Information and Inventions. I specifically agree that work I complete as an employee of USANA\nis work made for hire and all rights in the work belong to USANA. In that regard, I hereby assign to USANA all of my rights in all Confidential\nInformation, including all discoveries, inventions and other technology, all works of authorship, all data and information, and all intellectual\nproperty rights therein, which are made, discovered, developed, created, or conceived, in whole or in part, previously or hereafter by me\n(i) during the course of and within the scope of my employment with USANA, or (b) with the aid of Confidential Information or the facilities,\nresources or property of USANA.\n3.\nConfidentiality. and Non-Disclosure. I understand that my employment with USANA creates a relationship of trust and\nconfidence between me and USANA with respect to the Confidential Information about which I may learn or that I help to develop or that\nis\notherwise\ndisclosed\nto\nme\nby\nUSANA\nduring\nthe\nperiod\nof\nmy\nemployment\nwith\nUSANA.\nThis\nis\nespecially\ntrue\nwhere\nUSANA\nmight\nshare\nwith me and other employees USANA'S plans to introduce new products or programs. At all times during and after my employment with\nUSANA, I will keep in strict confidence all Confidential Information and I will not use or disclose any Confidential Information, nor permit\nothers to use or disclose it in any way, without USANA'S written permission, except as may be necessary to perform my duties as a USANA\nemployee.\nI acknowledge and agree that USANA is the sole and exclusive owner of all rights in and to its Confidential Information, and I agree\nthat upon termination of my employment with USANA I will immediately return to USANA all Confidential Information in my possession, as\nwell as any and all copies, reproductions or summaries thereof.\n4.\nNon-Solicitation. I agree that during my period of employment with USANA, and for a period of [one] year thereafter, I will\nnot directly or indirectly (a) call on, solicit, take away, or attempt to take away for my benefit or the benefit of any other person or entity, any\ncustomer, supplier, or client of USANA, or (b) solicit, take away, or attempt to take away, for my benefit or the benefit of any other person or\nentity, any employee or officer of USANA.\n5.\nNon-Competition. In exchange for the benefits of continued employment, I agree not to accept employment with, engage in or\nparticipate, directly or indirectly, individually or as an officer, director, employee, shareholder, consultant, partner, joint venture, agent, equity\nowner, distributor or in any other capacity whatsoever, with any direct sales or multi-level marketing company that competes with USANA,\nwhether for market share of products or for distributors in territory in which USANA is doing business. The restrictions set forth in this\nparagraph shall remain in effect during my employment with USANA and during a period of six months following the termination of my\nemployment. Within fifteen days of termination of my employment, USANA shall notify me whether it elects to release me from the obligations\nset forth in this paragraph. For the period following the termination of employment during which the restrictive covenants in this paragraph\nremain in effect, USANA shall pay me a sum equal to fifty percent of my base salary at termination of employment, less applicable withholding\ntaxes and excluding all incentive compensation and other benefit payments. Payment may be made in periodic installments in accordance with\nUSANA's regular payroll practices.\n6.\nNon-Disparagement. I will not in an way, directly or indirectly, at any time during employment or after either voluntary or\ninvoluntary employment termination, commercially disparage USANA, its products, employees or distributors.\n7.\nNo Contract of Employment. I acknowledge and understand that (i) this Agreement is not an employment agreement\nand\ndoes\nnot give me the right to be employed by USANA in any capacity, and (ii) nothing in this Agreement is intended to alter or change the terms\nor\nduration of my employment with USANA. I also understand that this Agreement does not supersede, void or otherwise limit USANA'S\nemployee policies relating to the confidentiality of business information as stated in the USANA Employee Handbook or my obligation as an\nemployee of USANA to adhere to these policies.\n8.\nGeneral. I acknowledge and agree that:\na.\nDue to the unique nature of this Agreement and my obligations regarding non-disclosure, non-use and assignment of\nConfidential Information and inventions, monetary damages alone will be an inadequate remedy for my breach of such obligations. As a result,\nin the event of my breach of this Agreement, I agree that USANA shall be entitled to obtain injunctive and other equitable relief to protect the\nconfidential nature of its Confidential Information, in addition to all other remedies which may be available at law or otherwise.\nb.\nThis Agreement shall be governed by and interpreted in accordance with the laws of the State of Utah and the parties\nagree to submit to the exclusive jurisdiction of the courts of the State of Utah to resolve any litigation to enforce this Agreement.\nC.\nIf any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable,\nthe same shall be deemed severed from the remainder of this Agreement and shall not cause the invalidity or unenforceability of the remainder of\nthis Agreement.\nThis Agreement will be effective as of the first date of my employment with USANA, namely\n20\n2\nEMPLOYEE\nUSANA Health Sciences, Inc.\nBy:\n(Employee's Signature)\nJames Bramble\nName:\nTitle:\n(please print)\nGeneral Counsel\nDated:\nDated:\n3	EX-10.18 2 a11-25732_1ex10d18.htm EX-10.18\nExhibit 10.18\nUSANA HEALTH SCIENCES, INC.\nCONFIDENTIALITY, NON-DISCLOSURE\nAND NON-SOLICITATION AGREEMENT\nIn consideration of employment or continued employment by USANA Health Sciences, Inc. or any of its affiliates or subsidiaries\n(collectively, “USANA”), the compensation paid by USANA from time to time, and other good and valuable consideration, the undersigned\nemployee of USANA hereby represents to and agrees with USANA as follows:\n1. Confidential Information. I understand that USANA owns or might acquire confidential or secret information (“Confidential\nInformation”) that is valuable to USANA’s business. Confidential Information includes but is not limited to trade secrets, copyrighted material,\nwritten material, pictures, logos, processes, formulas, computer programs, data, know-how, inventions, improvements, techniques, marketing\nplans, product plans, strategies, forecasts, supplier information, customer lists, and any other type of information, which is not generally known\nand is owned by USANA or its customers or suppliers. Confidential information specifically refers to information I may view or have access to\nor information I create or assist in creating as part of my job at USANA.\n2.\nAssignment of Confidential Information and Inventions. I specifically agree that work I complete as an employee of USANA\nis work made for hire and all rights in the work belong to USANA. In that regard, I hereby assign to USANA all of my rights in all Confidential\nInformation, including all discoveries, inventions and other technology, all works of authorship, all data and information, and all intellectual\nproperty rights therein, which are made, discovered, developed, created, or conceived, in whole or in part, previously or hereafter by me\n(i) during the course of and within the scope of my employment with USANA, or (b) with the aid of Confidential Information or the facilities,\nresources or property of USANA.\n3.\nConfidentiality and Non-Disclosure. I understand that my employment with USANA creates a relationship of trust and\nconfidence between me and USANA with respect to the Confidential Information about which I may learn or that I help to develop or that is\notherwise disclosed to me by USANA during the period of my employment with USANA. This is especially true where USANA might share\nwith me and other employees USANA’s plans to introduce new products or programs. At all times during and after my employment with\nUSANA, I will keep in strict confidence all Confidential Information and I will not use or disclose any Confidential Information, nor permit\nothers to use or disclose it in any way, without USANA’s written permission, except as may be necessary to perform my duties as a USANA\nemployee.\nI acknowledge and agree that USANA is the sole and exclusive owner of all rights in and to its Confidential Information, and I agree\nthat upon termination of my employment with USANA I will immediately return to USANA all Confidential Information in my possession, as\nwell as any and all copies, reproductions or summaries thereof.\n4.\nNon-Solicitation. I agree that during my period of employment with USANA, and for a period of [one] year thereafter, I will\nnot directly or indirectly (a) call on, solicit, take away, or attempt to take away for my benefit or the benefit of any other person or entity, any\ncustomer, supplier, or client of USANA, or (b) solicit, take away, or attempt to take away, for my benefit or the benefit of any other person or\nentity, any employee or officer of USANA.\n5.\nNon-Competition. In exchange for the benefits of continued employment, I agree not to accept employment with, engage in or\nparticipate, directly or indirectly, individually or as an officer, director, employee, shareholder, consultant, partner, joint venture, agent, equity\nowner, distributor or in any other capacity whatsoever, with any direct sales or multi-level marketing company that competes with USANA,\nwhether for market share of products or for distributors in territory in which USANA is doing business. The restrictions set forth in this\nparagraph shall remain in effect during my employment with USANA and during a period of six months following the termination of my\nemployment. Within fifteen days of termination of my employment, USANA shall notify me whether it elects to release me from the obligations\nset forth in this paragraph. For the period following the termination of employment during which the restrictive covenants in this paragraph\nremain in effect, USANA shall pay me a sum equal to fifty percent of my base salary at termination of employment, less applicable withholding\ntaxes and excluding all incentive compensation and other benefit payments. Payment may be made in periodic installments in accordance with\nUSANA’s regular payroll practices.\n6.\nNon-Disparagement. I will not in an way, directly or indirectly, at any time during employment or after either voluntary or\ninvoluntary employment termination, commercially disparage USANA, its products, employees or distributors.\n7.\nNo Contract of Employment. I acknowledge and understand that (i) this Agreement is not an employment agreement and does\nnot give me the right to be employed by USANA in any capacity, and (ii) nothing in this Agreement is intended to alter or change the terms or\nduration of my employment with USANA. I also understand that this Agreement does not supersede, void or otherwise limit USANA’s\nemployee policies relating to the confidentiality of business information as stated in the USANA Employee Handbook or my obligation as an\nemployee of USANA to adhere to these policies.\n8.\nGeneral. I acknowledge and agree that:\na.\nDue to the unique nature of this Agreement and my obligations regarding non-disclosure, non-use and assignment of\nConfidential Information and inventions, monetary damages alone will be an inadequate remedy for my breach of such obligations. As a result,\nin the event of my breach of this Agreement, I agree that USANA shall be entitled to obtain injunctive and other equitable relief to protect the\nconfidential nature of its Confidential Information, in addition to all other remedies which may be available at law or otherwise.\nb.\nThis Agreement shall be governed by and interpreted in accordance with the laws of the State of Utah and the parties\nagree to submit to the exclusive jurisdiction of the courts of the State of Utah to resolve any litigation to enforce this Agreement.\nc.\nIf any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable,\nthe same shall be deemed severed from the remainder of this Agreement and shall not cause the invalidity or unenforceability of the remainder of\nthis Agreement.\nThis Agreement will be effective as of the first date of my employment with USANA, namely\n,\n20.\n2\nEMPLOYEE\nUSANA Health Sciences, Inc.\nBy:\n(Employee’s Signature)\nJames Bramble\nName:\nTitle:\n(please print)\nGeneral Counsel\nDated:\nDated:\n3
+7cf3dfaf7afd9989de90cb3cbd8d6a83.pdf	effective_date jurisdiction party term	EXHIBIT 5\nMICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\n(STANDARD RECIPROCAL)\nThis Non-Disclosure Agreement (the “Agreement”) is made and entered into as of the later of the two signature dates below by and between\nMICROSOFT CORPORATION, a Washington corporation (“Microsoft”), and Electronic Arts, a Delaware corporation (“Company”).\nIN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE MUTUAL\nDISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO AGREE AS FOLLOWS:\n1 Definition of Confidential Information and Exclusions\n(a) “Confidential Information” means nonpublic information that a party to this Agreement (“Disclosing Party”) designates as being\nconfidential to the party that receives such information (“Receiving Party”) or which, under the circumstances surrounding disclosure ought to be\ntreated as confidential by the Receiving Party. “Confidential Information” includes, without limitation, information in tangible or intangible form\nrelating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing\nParty product, Disclosing Party’s business policies or practices, and information received from others that Disclosing Party is obligated to treat as\nconfidential. Except as otherwise indicated in this Agreement, the term “Disclosing Party” also includes all Affiliates of the Disclosing Party and,\nexcept as otherwise indicated, the term “Receiving Party” also includes all Affiliates of the Receiving Party. An “Affiliate” means any person,\npartnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or\nindirectly, control, are controlled by, or are under common control with a party. Prior to the time that any Confidential Information is shared with an\nAffiliate who has not signed this Agreement, the Receiving Party that executed this Agreement below (the “Undersigned Receiving Party”) shall\nhave entered into an appropriate written agreement with that Affiliate sufficient to enable the Disclosing Party and/or the Undersigned Receiving\nParty to enforce all of the provisions of this Agreement against such Affiliate.\n(b) Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available\nwithout Receiving Party’s breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s\ndisclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source\nother than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed by\nReceiving Party; or (v) constitutes Feedback (as defined in Section 5 of this Agreement).\n2. Obligations Regarding Confidential Information\n(a) Receiving Party shall:\n(i) Refrain from disclosing any Confidential Information of the Disclosing Party to third parties for five (5) years following the date that\nDisclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in Sections 2(b) and 2(c)\nof this Agreement;\n(ii) Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but no less\nthan reasonable care, to keep confidential the Confidential Information of the Disclosing Party;\n(iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except in\npursuance of Receiving Party’s business relationship with Disclosing Party, and only as otherwise provided hereunder; and\n(iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed by\nDisclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by applicable law.\n(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order,\nprovided that Receiving Party either (i) gives the undersigned Disclosing Party reasonable notice\n11/6/2009\nCONFIDENTIAL\nprior to such disclosure to allow Disclosing Party a reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance\nfrom the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under\napplicable law or regulation. Notwithstanding the foregoing, the Receiving Party shall not disclose any computer source code that contains\nConfidential Information of the Disclosing Party in accordance with a judicial or other governmental order unless it complies with the requirement\nset forth in sub-section (i) of this Section 2(b).\n(c) The undersigned Receiving Party may disclose Confidential Information only to Receiving Party’s employees and consultants on a need-to-\nknow basis. The Receiving Party will have executed or shall execute appropriate written agreements with its employees and consultants sufficient to\nenable Receiving Party to enforce all the provisions of this Agreement.\n(d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with\nDisclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n(e) Receiving Party shall, at Disclosing Party’s request, return all originals, copies, reproductions and summaries of Confidential Information\nand all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party’s option, certify\ndestruction of the same.\n3. Remedies\nThe parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and\nthat Disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper\nby a court of competent jurisdiction.\n4. Miscellaneous\n(a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving\nParty, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade secret\ninformation except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such patents,\ncopyrights, trademarks, or trade secrets except as otherwise provided herein.\n(b) In the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential Information\nunder the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation and providing\nFeedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and the Receiving\nParty, all such computer software and/or hardware is provided “AS IS” without warranty of any kind, and Receiving Party agrees that neither\nDisclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party’s use of or inability to use\nsuch software and/or hardware.\n(c) The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii) any\nproduct (or any part thereof), process or service that is the direct product of the Confidential Information, including the U.S. Export Administration\nRegulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information on exporting\nMicrosoft products, see http://www.microsoft.com/exporting/.\n(d) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party’s right\nto independently develop or acquire products without use of the other party’s Confidential Information. Further, the Receiving Party shall be free to\nuse for any purpose the residuals resulting from access to or work with the Confidential Information of the Disclosing Party, provided that the\nReceiving Party shall not disclose the Confidential Information except as expressly permitted pursuant to the terms of this Agreement. The term\n“residuals” means information in intangible form, which is retained in memory by persons who have had access to the Confidential Information,\nincluding ideas, concepts, know-how or techniques contained therein. The Receiving Party shall not have any obligation to limit or restrict the\nassignment of such persons or to pay royalties for any work resulting from the use of residuals. However, this sub-paragraph shall not be deemed to\ngrant to the Receiving Party a license under the Disclosing Party’s copyrights or patents.\nCONFIDENTIAL\n(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified\nexcept by written agreement dated subsequent to the date of this Agreement and signed by both parties. None of the provisions of this Agreement\nshall be deemed to have been waived by any act or acquiescence on the part of Disclosing Party, the Receiving Party, their agents, or employees, but\nonly by an instrument in writing signed by an authorized employee of Disclosing Party and the Receiving Party. No waiver of any provision of this\nAgreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion.\n(f) If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the\nprevailing party shall be entitled to recover reasonable attorneys’ fees and costs. This Agreement shall be construed and controlled by the laws of the\nState of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County, Washington,\nunless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the Superior Court of\nKing County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either\nparty in the manner authorized by applicable law or court rule.\n(g) This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns; provided, however,\nthat neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole or in part,\nwithout the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.\n(h) If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining\nprovisions shall remain in full force and effect.\n(i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All sections\nof this Agreement relations to the right and obligations of the parties concerning Confidential Information disclosed during the term of the\nAgreement shall survive any such termination.\n4. Suggestions and Feedback\nThe Receiving Party may from time to time provide suggestions, comments or other feedback (“Feedback”) to the Disclosing Party with\nrespect to Confidential Information provided originally by the Disclosing Party. Both parties agree that all Feedback is and shall be given entirely\nvoluntarily. Feedback, even if designated as confidential by the party offering the Feedback, shall not, absent a separate written agreement, create\nany confidentiality obligation for the receiver of the Feedback. Receiving Party will not give Feedback that is subject to license terms that seek to\nrequire any Disclosing Party product, technology, service or documentation incorporating or derived from such Feedback, or any Disclosing Party\nintellectual property, to be licensed or otherwise shared with any third party. Furthermore, except as otherwise provided herein or in a separate\nsubsequent written agreement between the parties, the receiver of the Feedback shall be free to use, disclose, reproduce, license or otherwise\ndistribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual\nproperty rights or otherwise.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement.\nCOMPANY: ELECTRONIC ARTS INC.\nMICROSOFT CORPORATION\nAddress: 209 Redwood Shores Parkway\nRedwood City, CA 94065\nOne Microsoft Way\nRedmond, WA 98052-6399\nSign: /s/ M. West\nSign: /s/ Laura Wallace\nPrint Name: M. West\nPrint Name: Laura Wallace\nPrint Title: SVP CIO\nPrint Title: GM, Northern California\nSignature Date: 4/8/04\nSignature Date: 4/26/04\nCONFIDENTIAL	EXHIBIT 5\nMICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\n(STANDARD RECIPROCAL)\nThis Non-Disclosure Agreement (the “Agreement”) is made and entered into as of the later of the two signature dates below by and between\nMICROSOFT CORPORATION, a Washington corporation (“Microsoft”), and Electronic Arts, a Delaware corporation (“Company”).\nIN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE MUTUAL\nDISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO AGREE AS FOLLOWS:\n1 Definition of Confidential Information and Exclusions\n(a) “Confidential Information” means nonpublic information that a party to this Agreement (“Disclosing Party”) designates as being\nconfidential to the party that receives such information (“Receiving Party”) or which, under the circumstances surrounding disclosure ought to be\ntreated as confidential by the Receiving Party. “Confidential Information” includes, without limitation, information in tangible or intangible form\nrelating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing\nParty product, Disclosing Party’s business policies or practices, and information received from others that Disclosing Party is obligated to treat as\nconfidential. Except as otherwise indicated in this Agreement, the term “Disclosing Party” also includes all Affiliates of the Disclosing Party and,\nexcept as otherwise indicated, the term “Receiving Party” also includes all Affiliates of the Receiving Party. An “Affiliate” means any person,\npartnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or\nindirectly, control, are controlled by, or are under common control with a party. Prior to the time that any Confidential Information is shared with an\nAffiliate who has not signed this Agreement, the Receiving Party that executed this Agreement below (the “Undersigned Receiving Party”) shall\nhave entered into an appropriate written agreement with that Affiliate sufficient to enable the Disclosing Party and/or the Undersigned Receiving\nParty to enforce all of the provisions of this Agreement against such Affiliate.\n(b) Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available\nwithout Receiving Party’s breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s\ndisclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source\nother than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed by\nReceiving Party; or (v) constitutes Feedback (as defined in Section 5 of this Agreement).\n2. Obligations Regarding Confidential Information\n(a) Receiving Party shall:\n(i) Refrain from disclosing any Confidential Information of the Disclosing Party to third parties for five (5) years following the date that\nDisclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in Sections 2(b) and 2(c)\nof this Agreement;\n(ii) Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but no less\nthan reasonable care, to keep confidential the Confidential Information of the Disclosing Party;\n(iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except in\npursuance of Receiving Party’s business relationship with Disclosing Party, and only as otherwise provided hereunder; and\n(iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed by\nDisclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by applicable law.\n(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order,\nprovided that Receiving Party either (i) gives the undersigned Disclosing Party reasonable notice\n11/6/2009 CONFIDENTIAL\nprior to such disclosure to allow Disclosing Party a reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance\nfrom the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under\napplicable law or regulation. Notwithstanding the foregoing, the Receiving Party shall not disclose any computer source code that contains\nConfidential Information of the Disclosing Party in accordance with a judicial or other governmental order unless it complies with the requirement\nset forth in sub-section (i) of this Section 2(b).\n(c) The undersigned Receiving Party may disclose Confidential Information only to Receiving Party’s employees and consultants on a need-to-\nknow basis. The Receiving Party will have executed or shall execute appropriate written agreements with its employees and consultants sufficient to\nenable Receiving Party to enforce all the provisions of this Agreement.\n(d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with\nDisclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n(e) Receiving Party shall, at Disclosing Party’s request, return all originals, copies, reproductions and summaries of Confidential Information\nand all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party’s option, certify\ndestruction of the same.\n3. Remedies\nThe parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and\nthat Disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper\nby a court of competent jurisdiction.\n4. Miscellaneous\n(a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving\nParty, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade secret\ninformation except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such patents,\ncopyrights, trademarks, or trade secrets except as otherwise provided herein.\n(b) In the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential Information\nunder the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation and providing\nFeedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and the Receiving\nParty, all such computer software and/or hardware is provided “AS IS” without warranty of any kind, and Receiving Party agrees that neither\nDisclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party’s use of or inability to use\nsuch software and/or hardware.\n(c) The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii) any\nproduct (or any part thereof), process or service that is the direct product of the Confidential Information, including the U.S. Export Administration\nRegulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information on exporting\nMicrosoft products, see http://www.microsoft.com/exporting/.\n(d) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party’s right\nto independently develop or acquire products without use of the other party’s Confidential Information. Further, the Receiving Party shall be free to\nuse for any purpose the residuals resulting from access to or work with the Confidential Information of the Disclosing Party, provided that the\nReceiving Party shall not disclose the Confidential Information except as expressly permitted pursuant to the terms of this Agreement. The term\n“residuals” means information in intangible form, which is retained in memory by persons who have had access to the Confidential Information,\nincluding ideas, concepts, know-how or techniques contained therein. The Receiving Party shall not have any obligation to limit or restrict the\nassignment of such persons or to pay royalties for any work resulting from the use of residuals. However, this sub-paragraph shall not be deemed to\ngrant to the Receiving Party a license under the Disclosing Party’s copyrights or patents.\nCONFIDENTIAL\n(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified\nexcept by written agreement dated subsequent to the date of this Agreement and signed by both parties. None of the provisions of this Agreement\nshall be deemed to have been waived by any act or acquiescence on the part of Disclosing Party, the Receiving Party, their agents, or employees, but\nonly by an instrument in writing signed by an authorized employee of Disclosing Party and the Receiving Party. No waiver of any provision of this\nAgreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion.\n() If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the\nprevailing party shall be entitled to recover reasonable attorneys’ fees and costs. This Agreement shall be construed and controlled by the laws of the\nState of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County, Washington,\nunless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the Superior Court of\nKing County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either\nparty in the manner authorized by applicable law or court rule.\n(g) This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns; provided, however,\nthat neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole or in part,\nwithout the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.\n(h) If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining\nprovisions shall remain in full force and effect.\n(i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All sections\nof this Agreement relations to the right and obligations of the parties concerning Confidential Information disclosed during the term of the\nAgreement shall survive any such termination.\n4. Suggestions and Feedback\nThe Receiving Party may from time to time provide suggestions, comments or other feedback (“Feedback”) to the Disclosing Party with\nrespect to Confidential Information provided originally by the Disclosing Party. Both parties agree that all Feedback is and shall be given entirely\nvoluntarily. Feedback, even if designated as confidential by the party offering the Feedback, shall not, absent a separate written agreement, create\nany confidentiality obligation for the receiver of the Feedback. Receiving Party will not give Feedback that is subject to license terms that seek to\nrequire any Disclosing Party product, technology, service or documentation incorporating or derived from such Feedback, or any Disclosing Party\nintellectual property, to be licensed or otherwise shared with any third party. Furthermore, except as otherwise provided herein or in a separate\nsubsequent written agreement between the parties, the receiver of the Feedback shall be free to use, disclose, reproduce, license or otherwise\ndistribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual\nproperty rights or otherwise.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement.\nCOMPANY: ELECTRONIC ARTS INC. MICROSOFT CORPORATION\nAddress: 209 Redwood Shores Parkway One Microsoft Way\nRedwood City, CA 94065 Redmond, WA 98052-6399\nSign: /s/ M.. West Sign: /s/ Laura Wallace\nPrint Name: M. West Print Name: Laura Wallace\nPrint Title: SVP CIO Print Title: GM, Northern California\nSignature Date: 4/8/04 Signature Date: 4/26/04\nCONFIDENTIAL	EXHIBIT 5\nMICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\n(STANDARD RECIPROCAL)\nThis Non-Disclosure Agreement (the "Agreement") is made and entered into as of the later of the two signature dates below by and between\nMICROSOFT CORPORATION, a Washington corporation ("Microsoft"), and Electronic Arts, a Delaware corporation ("'Company").\nIN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE MUTUAL\nDISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO AGREE AS FOLLOWS:\n1 Definition of Confidential Information and Exclusions\n(a) "Confidential Information" means nonpublic information that a party to this Agreement ("Disclosing Party") designates as being\nconfidential to the party that receives such information ("Receiving Party") or which, under the circumstances surrounding disclosure ought to be\ntreated as confidential by the Receiving Party. "Confidential Information" includes, without limitation, information in tangible or intangible form\nrelating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing\nParty product, Disclosing Party's business policies or practices, and information received from others that Disclosing Party is obligated to treat as\nconfidential. Except as otherwise indicated in this Agreement, the term "Disclosing Party" also includes all Affiliates of the Disclosing Party and,\nexcept as otherwise indicated, the term "Receiving Party" also includes all Affiliates of the Receiving Party. An "Affiliate" means any person,\npartnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or\nindirectly, control, are controlled by, or are under common control with a party. Prior to the time that any Confidential Information is shared with an\nAffiliate who has not signed this Agreement, the Receiving Party that executed this Agreement below (the "Undersigned Receiving Party") shall\nhave entered into an appropriate written agreement with that Affiliate sufficient to enable the Disclosing Party and/or the Undersigned Receiving\nParty to enforce all of the provisions of this Agreement against such Affiliate.\n(b) Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available\nwithout Receiving Party's breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party's\ndisclosure\nof\nsuch\ninformation\nto\nReceiving\nParty\npursuant\nto\nthe\nterms\nof\nthis\nAgreement;\n(iii)\nbecame\nknown\nto\nReceiving\nParty\nfrom\na\nsource\nother than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed by\nReceiving Party; or (v) constitutes Feedback (as defined in Section 5 of this Agreement).\n2. Obligations Regarding Confidential Information\n(a) Receiving Party shall:\n(i)\nRefrain from disclosing any Confidential Information of the Disclosing Party to third parties for five (5) years following the date that\nDisclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in Sections 2(b) and 2(c)\nof this Agreement;\n(ii)\nTake reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but no less\nthan reasonable care, to keep confidential the Confidential Information of the Disclosing Party;\n(iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except in\npursuance of Receiving Party's business relationship with Disclosing Party, and only as otherwise provided hereunder; and\n(iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed by\nDisclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by applicable law.\n(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order,\nprovided that Receiving Party either (i) gives the undersigned Disclosing Party reasonable notice\n11/6/2009\nCONFIDENTIAL\nprior to such disclosure to allow Disclosing Party a reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance\nfrom the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under\napplicable law or regulation. Notwithstanding the foregoing, the Receiving Party shall not disclose any computer source code that contains\nConfidential Information of the Disclosing Party in accordance with a judicial or other governmental order unless it complies with the requirement\nset forth in sub-section (i) of this Section 2(b).\n(c) The undersigned Receiving Party may disclose Confidential Information only to Receiving Party's employees and consultants on a need-to-\nknow basis. The Receiving Party will have executed or shall execute appropriate written agreements with its employees and consultants sufficient to\nenable Receiving Party to enforce all the provisions of this Agreement.\n(d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nConfidential\nInformation or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with\nDisclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n(e) Receiving Party shall, at Disclosing Party's request, return all originals, copies, reproductions and summaries of Confidential Information\nand all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party's option, certify\ndestruction of the same.\n3. Remedies\nThe parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and\nthat Disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper\nby a court of competent jurisdiction.\n4. Miscellaneous\n(a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving\nParty, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade secret\ninformation except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such patents,\ncopyrights, trademarks, or trade secrets except as otherwise provided herein.\n(b) In the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential Information\nunder the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation and providing\nFeedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and the Receiving\nParty, all such computer software and/or hardware is provided "AS IS" without warranty of any kind, and Receiving Party agrees that neither\nDisclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party's use of or inability to use\nsuch software and/or hardware.\n(c) The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii) any\nproduct (or any part thereof), process or service that is the direct product of the Confidential Information, including the U.S. Export Administration\nRegulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information on exporting\nMicrosoft products, see http://www.microsoft.com/exporting\n(d) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party's right\nto independently develop or acquire products without use of the other party's Confidential Information. Further, the Receiving Party shall be free to\nuse for any purpose the residuals resulting from access to or work with the Confidential Information of the Disclosing Party, provided that the\nReceiving Party shall not disclose the Confidential Information except as expressly permitted pursuant to the terms of this Agreement. The term\n"residuals" means information in intangible form, which is retained in memory by persons who have had access to the Confidential Information,\nincluding ideas, concepts, know-how or techniques contained therein. The Receiving Party shall not have any obligation to limit or restrict the\nassignment of such persons or to pay royalties for any work resulting from the use of residuals. However, this sub-paragraph shall not be deemed to\ngrant to the Receiving Party a license under the Disclosing Party's copyrights or patents.\nCONFIDENTIAL\n(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified\nexcept by written agreement dated subsequent to the date of this Agreement and signed by both parties. None of the provisions of this Agreement\nshall be deemed to have been waived by any act or acquiescence on the part of Disclosing Party, the Receiving Party, their agents, or employees, but\nonly by an instrument in writing signed by an authorized employee of Disclosing Party and the Receiving Party. No waiver of any provision of this\nAgreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion.\n(f) If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the\nprevailing party shall be entitled to recover reasonable attorneys' fees and costs. This Agreement shall be construed and controlled by the laws of the\nState of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County, Washington,\nunless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the Superior Court of\nKing County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either\nparty in the manner authorized by applicable law or court rule.\n(g) This Agreement shall be binding upon and inure to the benefit of each party's respective successors and lawful assigns; provided, however,\nthat neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole or in part,\nwithout the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.\n(h) If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining\nprovisions shall remain in full force and effect.\n(i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All sections\nof this Agreement relations to the right and obligations of the parties concerning Confidential Information disclosed during the term of the\nAgreement shall survive any such termination.\n4. Suggestions and Feedback\nThe Receiving Party may from time to time provide suggestions, comments or other feedback ("Feedback") to the Disclosing Party with\nrespect to Confidential Information provided originally by the Disclosing Party. Both parties agree that all Feedback is and shall be given entirely\nvoluntarily. Feedback, even if designated as confidential by the party offering the Feedback, shall not, absent a separate written agreement, create\nany confidentiality obligation for the receiver of the Feedback. Receiving Party will not give Feedback that is subject to license terms that seek to\nrequire any Disclosing Party product, technology, service or documentation incorporating or derived from such Feedback, or any Disclosing Party\nintellectual property, to be licensed or otherwise shared with any third party. Furthermore, except as otherwise provided herein or in a separate\nsubsequent written agreement between the parties, the receiver of the Feedback shall be free to use, disclose, reproduce, license or otherwise\ndistribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual\nproperty rights or otherwise.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement.\nCOMPANY: ELECTRONIC ARTS INC.\nMICROSOFT CORPORATION\nAddress: 209 Redwood Shores Parkway\nOne Microsoft Way\nRedwood City, CA 94065\nRedmond, WA 98052-6399\nSign: /s/ M. West\nSign: /s/ Laura Wallace\nPrint Name: M. West\nPrint Name: Laura Wallace\nPrint Title: SVP CIO\nPrint Title: GM, Northern California\nSignature Date: 4/8/04\nSignature Date: 4/26/04\nCONFIDENTIAL	EXHIBIT 5\nMICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT\n(STANDARD RECIPROCAL)\nThis Non-Disclosure Agreement (the “Agreement”) is made and entered into as of the later of the two signature dates below by and between\nMICROSOFT CORPORATION, a Washington corporation (“Microsoft”), and Electronic Arts, a Delaware corporation (“Company”).\nIN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE MUTUAL\nDISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO AGREE AS FOLLOWS:\n1 Definition of Confidential Information and Exclusions\n(a) “Confidential Information” means nonpublic information that a party to this Agreement (“Disclosing Party”) designates as being\nconfidential to the party that receives such information (“Receiving Party”) or which, under the circumstances surrounding disclosure ought to be\ntreated as confidential by the Receiving Party. “Confidential Information” includes, without limitation, information in tangible or intangible form\nrelating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing\nParty product, Disclosing Party’s business policies or practices, and information received from others that Disclosing Party is obligated to treat as\nconfidential. Except as otherwise indicated in this Agreement, the term “Disclosing Party” also includes all Affiliates of the Disclosing Party and,\nexcept as otherwise indicated, the term “Receiving Party” also includes all Affiliates of the Receiving Party. An “Affiliate” means any person,\npartnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or\nindirectly, control, are controlled by, or are under common control with a party. Prior to the time that any Confidential Information is shared with an\nAffiliate who has not signed this Agreement, the Receiving Party that executed this Agreement below (the “Undersigned Receiving Party”) shall\nhave entered into an appropriate written agreement with that Affiliate sufficient to enable the Disclosing Party and/or the Undersigned Receiving\nParty to enforce all of the provisions of this Agreement against such Affiliate.\n(b) Confidential Information shall not include any information, however designated, that: (i) is or subsequently becomes publicly available\nwithout Receiving Party’s breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s\ndisclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source\nother than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed by\nReceiving Party; or (v) constitutes Feedback (as defined in Section 5 of this Agreement).\n2. Obligations Regarding Confidential Information\n(a) Receiving Party shall:\n(i) Refrain from disclosing any Confidential Information of the Disclosing Party to third parties for five (5) years following the date that\nDisclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in Sections 2(b) and 2(c)\nof this Agreement;\n(ii) Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but no less\nthan reasonable care, to keep confidential the Confidential Information of the Disclosing Party;\n(iii) Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except in\npursuance of Receiving Party’s business relationship with Disclosing Party, and only as otherwise provided hereunder; and\n(iv) Refrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed by\nDisclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by applicable law.\n(b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order,\nprovided that Receiving Party either (i) gives the undersigned Disclosing Party reasonable notice\n11/6/2009\nCONFIDENTIAL\nprior to such disclosure to allow Disclosing Party a reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance\nfrom the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under\napplicable law or regulation. Notwithstanding the foregoing, the Receiving Party shall not disclose any computer source code that contains\nConfidential Information of the Disclosing Party in accordance with a judicial or other governmental order unless it complies with the requirement\nset forth in sub-section (i) of this Section 2(b).\n(c) The undersigned Receiving Party may disclose Confidential Information only to Receiving Party’s employees and consultants on a need-to-\nknow basis. The Receiving Party will have executed or shall execute appropriate written agreements with its employees and consultants sufficient to\nenable Receiving Party to enforce all the provisions of this Agreement.\n(d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of\nConfidential Information or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with\nDisclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further\nunauthorized use or disclosure.\n(e) Receiving Party shall, at Disclosing Party’s request, return all originals, copies, reproductions and summaries of Confidential Information\nand all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party’s option, certify\ndestruction of the same.\n3. Remedies\nThe parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and\nthat Disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper\nby a court of competent jurisdiction.\n4. Miscellaneous\n(a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving\nParty, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade secret\ninformation except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such patents,\ncopyrights, trademarks, or trade secrets except as otherwise provided herein.\n(b) In the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential Information\nunder the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation and providing\nFeedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and the Receiving\nParty, all such computer software and/or hardware is provided “AS IS” without warranty of any kind, and Receiving Party agrees that neither\nDisclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party’s use of or inability to use\nsuch software and/or hardware.\n(c) The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii) any\nproduct (or any part thereof), process or service that is the direct product of the Confidential Information, including the U.S. Export Administration\nRegulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information on exporting\nMicrosoft products, see http://www.microsoft.com/exporting/.\n(d) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party’s right\nto independently develop or acquire products without use of the other party’s Confidential Information. Further, the Receiving Party shall be free to\nuse for any purpose the residuals resulting from access to or work with the Confidential Information of the Disclosing Party, provided that the\nReceiving Party shall not disclose the Confidential Information except as expressly permitted pursuant to the terms of this Agreement. The term\n“residuals” means information in intangible form, which is retained in memory by persons who have had access to the Confidential Information,\nincluding ideas, concepts, know-how or techniques contained therein. The Receiving Party shall not have any obligation to limit or restrict the\nassignment of such persons or to pay royalties for any work resulting from the use of residuals. However, this sub-paragraph shall not be deemed to\ngrant to the Receiving Party a license under the Disclosing Party’s copyrights or patents.\nCONFIDENTIAL\n(e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified\nexcept by written agreement dated subsequent to the date of this Agreement and signed by both parties. None of the provisions of this Agreement\nshall be deemed to have been waived by any act or acquiescence on the part of Disclosing Party, the Receiving Party, their agents, or employees, but\nonly by an instrument in writing signed by an authorized employee of Disclosing Party and the Receiving Party. No waiver of any provision of this\nAgreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion.\n(f) If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the\nprevailing party shall be entitled to recover reasonable attorneys’ fees and costs. This Agreement shall be construed and controlled by the laws of the\nState of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County, Washington,\nunless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the Superior Court of\nKing County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either\nparty in the manner authorized by applicable law or court rule.\n(g) This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns; provided, however,\nthat neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole or in part,\nwithout the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.\n(h) If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining\nprovisions shall remain in full force and effect.\n(i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All sections\nof this Agreement relations to the right and obligations of the parties concerning Confidential Information disclosed during the term of the\nAgreement shall survive any such termination.\n4. Suggestions and Feedback\nThe Receiving Party may from time to time provide suggestions, comments or other feedback (“Feedback”) to the Disclosing Party with\nrespect to Confidential Information provided originally by the Disclosing Party. Both parties agree that all Feedback is and shall be given entirely\nvoluntarily. Feedback, even if designated as confidential by the party offering the Feedback, shall not, absent a separate written agreement, create\nany confidentiality obligation for the receiver of the Feedback. Receiving Party will not give Feedback that is subject to license terms that seek to\nrequire any Disclosing Party product, technology, service or documentation incorporating or derived from such Feedback, or any Disclosing Party\nintellectual property, to be licensed or otherwise shared with any third party. Furthermore, except as otherwise provided herein or in a separate\nsubsequent written agreement between the parties, the receiver of the Feedback shall be free to use, disclose, reproduce, license or otherwise\ndistribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual\nproperty rights or otherwise.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement.\nCOMPANY: ELECTRONIC ARTS INC.\nMICROSOFT CORPORATION\nAddress: 209 Redwood Shores Parkway\nRedwood City, CA 94065\nOne Microsoft Way\nRedmond, WA 98052-6399\nSign: /s/ M. West\nSign: /s/ Laura Wallace\nPrint Name: M. West\nPrint Name: Laura Wallace\nPrint Title: SVP CIO\nPrint Title: GM, Northern California\nSignature Date: 4/8/04\nSignature Date: 4/26/04\nCONFIDENTIAL
+7cfa17a4165369964337c2f46c40e3a2.pdf	effective_date jurisdiction party term	EX-10.14 18 a2236789zex-10_14.htm EX-10.14\nExhibit 10.14\nEMPLOYEE INVENTION, NON-DISCLOSURE,\nNON-COMPETITION AND NON-SOLICITATION AGREEMENT\nThis Agreement is made between Legacy Housing Corporation, a Delaware corporation (the “Company”), and\n(the\n“Employee”).\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee\nagree as follows:\n1.\nProprietary Information.\n(a)\nThe Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods,\ntechniques, formulas, compositions, compounds, projects’ developments, plans, research data, clinical data, financial data, personnel data,\ncomputer programs, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any\npurposes (other than in the performance of his duties as an employee of the Company) without written approval by an officer of the Company,\neither during or after his employment with the Company, unless and until such Proprietary Information has become public knowledge without\nfault by the Employee.\n(b)\nThe Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks,\nprogram listings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee\nor others, which came into his custody and possession as independent contractor to the Company or which shall come into his custody or\npossession, shall be and are the exclusive property of the Company to be used by the Employee only in the performance of his duties for the\nCompany. All such materials or copies thereof and all tangible property of the Company in the custody or possession of the Employee shall be\ndelivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of his employment. After such delivery, the\nEmployee shall not retain any such materials or copies thereof or any such tangible property.\n(c)\nThe Employee agrees that his obligation not to disclose or to use information and materials of the types set forth in paragraphs\n(a) and (b) above, and his obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of\ninformation, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2.\nDevelopments.\n(a)\nThe Employee will make full and prompt disclosure to the Company of all inventions, improvements, discoveries, methods,\ndevelopments, software, and works of authorship, whether patentable or not, which were or are created, made, conceived or reduced to practice\nby him or under his direction or jointly with others during his employment by the Company or during his provision of services as an independent\ncontractor to the Company, whether or not during normal working hours or on the premises of the Company (all of which are collectively\nreferred to in this Agreement as “Developments”).\n(b)\nThe Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company)\nall his right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the Company and which are made and conceived by the Employee not during normal working hours, not on the Company’s\npremises and not using the Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain\nclasses of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the\nCompany agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c)\nThe Employee agrees to cooperate fully with the Company, both during and after his employment with the Company, with\nrespect to the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States\nand foreign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interests in any Development. The Employee further agrees that if the Company is unable,\nafter reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to\nexecute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints\neach executive officer of the Company as his agent and attorney-in-fact to execute any such papers on his behalf, and to take any and all actions\nas the Company may deem necessary or desirable, in order to protect its rights and interests in any Development, under the conditions described\nin this sentence.\n3.\nOther Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company on page 6 of this Agreement, the\nEmployee is not bound by the terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade\nsecret or confidential or proprietary information in the course of his employment with the Company or to refrain from competing, directly or\nindirectly, with the business of such previous\n2\nemployer or any other party. The Employee further represents that his performance of all the terms of this Agreement and as an employee of the\nCompany does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by the\nEmployee in confidence or in trust prior to his employment with the Company, and the Employee will not disclose to the Company or induce the\nCompany to use any confidential or proprietary information or material belonging to any previous employer or others.\n4.\nUnited States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n5.\nNo Employment Contract.\nThe Employee understands that this Agreement does not constitute a contract of employment and does not imply that his employment\nwill continue for any period of time.\n6.\nNon-Competition.\n(a)\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such\nemployment for any reason, the Employee will not directly or indirectly:\n(i)\nas an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender,\nconsultant, or in any other capacity whatsoever (other than as the holder of not more than one percent of the combined voting power of\nthe outstanding stock of a publicly-held company), develop, design, produce, market, sell or render (or assist any other person in\ndeveloping, designing, producing, marketing, selling or rendering) products or services competitive with those developed, designed,\nproduced, marketed, sold or rendered by the company while the Employee was employed by the Company; or\n(ii)\nsolicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients,\ncustomers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the\nEmployee while employed by the Company.\n(b)\nIf the Employee violates the provisions of paragraph 6(a), the Employee shall continue to be bound by the restrictions set forth\nin paragraph 6(a) until a period of one year has expired without any violation of such provisions.\n3\n7.\nNon-Solicitation.\n(a)\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such\nemployment for any reason, the Employee will not directly or indirectly recruit, solicit or hire any employee of the Company, or induce or\nattempt to induce any employee of the Company to terminate his employment with, or otherwise cease his relationship with, the Company.\n(b)\nIf the Employee violates the provisions of paragraph 7(a), the Employee shall continue to be bound by the restrictions set forth\nin paragraph 7(a) until a period of one year has expired without any violation of such provisions.\n8.\nMiscellaneous.\n(a)\nThe Employee represents that the execution and performance by him of this Agreement does not and will not conflict with or\nbreach the terms of any other agreement by which the Employee is bound.\n(b)\nThe Employee acknowledges that this Agreement does not constitute a contract of employment and does not imply that the\nCompany will continue his employment for any period of time.\n(c)\nIf any restriction set forth in paragraph 6 or 7 is found by any court of competent jurisdiction to be unenforceable because it\nextends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only\nover the maximum period of time, range of activities or geographic area as to which it may be enforceable.\n(d)\nThe Company may assign this Agreement to any other corporation or entity which acquires (whether by purchase, merger,\nconsolidation or otherwise) all or substantially all of the business and/or assets of the Company.\n(e)\nThe invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability, of any other\nprovision of this Agreement.\n(f)\nThis Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his duties, salary or compensation after\nthe signing of this Agreement shall not affect the validity or scope of this Agreement.\n(g)\nThis Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n4\n(h)\nNo delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nother right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to\nor waiver of any right on any other occasion.\n(i)\nThe Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any\nsubsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be resigned at the\ntime of such transfer.\n(j) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and\nare considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition\nto such other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(k)\nThis Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the State\nof Texas. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or relating to any provision of this\nAgreement shall be commenced only in a court of the State of Texas and County of Tarrant (or, if appropriate, a federal court located within the\nState of Texas and County of Tarrant), and the Company and the Employee each consents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS\nAND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nLEGACY HOUSING CORPORATION\nDate:\nBy:\nName:\nTitle:\nEMPLOYEE:\nDate:\n(signature)\nPrior Agreements, if any:\n5	EX-10.14 18 a2236789zex-10_14.htm EX-10.14\nExhibit 10.14\nEMPLOYEE INVENTION, NON-DISCLOSURE,\nNON-COMPETITION AND NON-SOLICITATION AGREEMENT\nThis Agreement is made between Legacy Housing Corporation, a Delaware corporation (the “Company”), and (the\n“Employee”).\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee\nagree as follows:\n1. Proprietary Information.\n@) The Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information™) is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods,\ntechniques, formulas, compositions, compounds, projects’ developments, plans, research data, clinical data, financial data, personnel data,\ncomputer programs, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any\npurposes (other than in the performance of his duties as an employee of the Company) without written approval by an officer of the Company,\neither during or after his employment with the Company, unless and until such Proprietary Information has become public knowledge without\nfault by the Employee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks,\nprogram listings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee\nor others, which came into his custody and possession as independent contractor to the Company or which shall come into his custody or\npossession, shall be and are the exclusive property of the Company to be used by the Employee only in the performance of his duties for the\nCompany. All such materials or copies thereof and all tangible property of the Company in the custody or possession of the Employee shall be\ndelivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of his employment. After such delivery, the\nEmployee shall not retain any such materials or copies thereof or any such tangible property.\n(0 The Employee agrees that his obligation not to disclose or to use information and materials of the types set forth in paragraphs\n(a) and (b) above, and his obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of\ninformation, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n \n2. Developments.\n@) The Employee will make full and prompt disclosure to the Company of all inventions, improvements, discoveries, methods,\ndevelopments, software, and works of authorship, whether patentable or not, which were or are created, made, conceived or reduced to practice\nby him or under his direction or jointly with others during his employment by the Company or during his provision of services as an independent\ncontractor to the Company, whether or not during normal working hours or on the premises of the Company (all of which are collectively\nreferred to in this Agreement as “Developments”).\n(b) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company)\nall his right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the Company and which are made and conceived by the Employee not during normal working hours, not on the Company’s\npremises and not using the Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain\nclasses of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the\nCompany agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(0 The Employee agrees to cooperate fully with the Company, both during and after his employment with the Company, with\nrespect to the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States\nand foreign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interests in any Development. The Employee further agrees that if the Company is unable,\nafter reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to\nexecute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints\neach executive officer of the Company as his agent and attorney-in-fact to execute any such papers on his behalf, and to take any and all actions\nas the Company may deem necessary or desirable, in order to protect its rights and interests in any Development, under the conditions described\nin this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company on page 6 of this Agreement, the\nEmployee is not bound by the terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade\nsecret or confidential or proprietary information in the course of his employment with the Company or to refrain from competing, directly or\nindirectly, with the business of such previous\n \nemployer or any other party. The Employee further represents that his performance of all the terms of this Agreement and as an employee of the\nCompany does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by the\nEmployee in confidence or in trust prior to his employment with the Company, and the Employee will not disclose to the Company or induce the\nCompany to use any confidential or proprietary information or material belonging to any previous employer or others.\n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n5. No Employment Contract.\nThe Employee understands that this Agreement does not constitute a contract of employment and does not imply that his employment\nwill continue for any period of time.\n6. Non-Competition.\n@) While the Employee is employed by the Company and for a period of one year after the termination or cessation of such\nemployment for any reason, the Employee will not directly or indirectly:\n@) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender,\nconsultant, or in any other capacity whatsoever (other than as the holder of not more than one percent of the combined voting power of\nthe outstanding stock of a publicly-held company), develop, design, produce, market, sell or render (or assist any other person in\ndeveloping, designing, producing, marketing, selling or rendering) products or services competitive with those developed, designed,\nproduced, marketed, sold or rendered by the company while the Employee was employed by the Company; or\n(ii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients,\ncustomers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the\nEmployee while employed by the Company.\n(b) If the Employee violates the provisions of paragraph 6(a), the Employee shall continue to be bound by the restrictions set forth\nin paragraph 6(a) until a period of one year has expired without any violation of such provisions.\n3\n \n7. Non-Solicitation.\n@) While the Employee is employed by the Company and for a period of one year after the termination or cessation of such\nemployment for any reason, the Employee will not directly or indirectly recruit, solicit or hire any employee of the Company, or induce or\nattempt to induce any employee of the Company to terminate his employment with, or otherwise cease his relationship with, the Company.\n(b) If the Employee violates the provisions of paragraph 7(a), the Employee shall continue to be bound by the restrictions set forth\nin paragraph 7(a) until a period of one year has expired without any violation of such provisions.\n8. Miscellaneous.\n@) The Employee represents that the execution and performance by him of this Agreement does not and will not conflict with or\nbreach the terms of any other agreement by which the Employee is bound.\n(b) The Employee acknowledges that this Agreement does not constitute a contract of employment and does not imply that the\nCompany will continue his employment for any period of time.\n(0 If any restriction set forth in paragraph 6 or 7 is found by any court of competent jurisdiction to be unenforceable because it\nextends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only\nover the maximum period of time, range of activities or geographic area as to which it may be enforceable.\n(d) The Company may assign this Agreement to any other corporation or entity which acquires (whether by purchase, merger,\nconsolidation or otherwise) all or substantially all of the business and/or assets of the Company.\n(e) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability, of any other\nprovision of this Agreement.\n(3] This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his duties, salary or compensation after\nthe signing of this Agreement shall not affect the validity or scope of this Agreement.\n(8 This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n \n(h) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nother right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to\nor waiver of any right on any other occasion.\n®» The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any\nsubsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be resigned at the\ntime of such transfer.\n1)) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and\nare considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition\nto such other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\nk) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the State\nof Texas. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or relating to any provision of this\nAgreement shall be commenced only in a court of the State of Texas and County of Tarrant (or, if appropriate, a federal court located within the\nState of Texas and County of Tarrant), and the Company and the Employee each consents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS\nAND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nLEGACY HOUSING CORPORATION\nDate: By:\nName:\nTitle:\nEMPLOYEE:\nDate:\n(signature)\nPrior Agreements, if any:\n	EX-10.14 18 a2236789zex-10_14.htm EX-10.14\nExhibit 10.14\nEMPLOYEE INVENTION, NON-DISCLOSURE,\nNON-COMPETITION AND NON-SOLICITATION AGREEMENT\nThis Agreement is made between Legacy Housing Corporation, a Delaware corporation (the "Company"), and\n(the\n"Employee").\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee\nagree as follows:\n1.\nProprietary Information.\n(a)\nThe Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany's business, business relationships or financial affairs (collectively, "Proprietary Information") is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods,\ntechniques, formulas, compositions, compounds, projects' developments, plans, research data, clinical data, financial data, personnel data,\ncomputer programs, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any\npurposes (other than in the performance of his duties as an employee of the Company) without written approval by an officer of the Company,\neither during or after his employment with the Company, unless and until such Proprietary Information has become public knowledge without\nfault by the Employee.\n(b)\nThe Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks,\nprogram listings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee\nor others, which came into his custody and possession as independent contractor to the Company or which shall come into his custody or\npossession, shall be and are the exclusive property of the Company to be used by the Employee only in the performance of his duties for the\nCompany. All such materials or copies thereof and all tangible property of the Company in the custody or possession of the Employee shall be\ndelivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of his employment. After such delivery, the\nEmployee shall not retain any such materials or copies thereof or any such tangible property.\n(c)\nThe Employee agrees that his obligation not to disclose or to use information and materials of the types set forth in paragraphs\n(a) and (b) above, and his obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of\ninformation, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2.\nDevelopments.\n(a)\nThe Employee will make full and prompt disclosure to the Company of all inventions, improvements, discoveries, methods,\ndevelopments, software, and works of authorship, whether patentable or not, which were or are created, made, conceived or reduced to practice\nby him or under his direction or jointly with others during his employment by the Company or during his provision of services as an independent\ncontractor to the Company, whether or not during normal working hours or on the premises of the Company (all of which are collectively\nreferred to in this Agreement as "Developments").\n(b)\nThe Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company)\nall his right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the Company and which are made and conceived by the Employee not during normal working hours, not on the Company's\npremises and not using the Company's tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain\nclasses of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the\nCompany agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c)\nThe Employee agrees to cooperate fully with the Company, both during and after his employment with the Company, with\nrespect to the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States\nand foreign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interests in any Development. The Employee further agrees that if the Company is unable,\nafter reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to\nexecute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints\neach executive officer of the Company as his agent and attorney-in-fact to execute any such papers on his behalf, and to take any and all actions\nas the Company may deem necessary or desirable, in order to protect its rights and interests in any Development, under the conditions described\nin this sentence.\n3.\nOther Agreements\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company on page 6 of this Agreement, the\nEmployee is not bound by the terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade\nsecret or confidential or proprietary information in the course of his employment with the Company or to refrain from competing, directly or\nindirectly, with the business of such previous\n2\nemployer or any other party. The Employee further represents that his performance of all the terms of this Agreement and as an employee of the\nCompany does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by the\nEmployee in confidence or in trust prior to his employment with the Company, and the Employee will not disclose to the Company or induce the\nCompany to use any confidential or proprietary information or material belonging to any previous employer or others.\n4.\nUnited States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n5.\nNo Employment Contract.\nThe Employee understands that this Agreement does not constitute a contract of employment and does not imply that his employment\nwill continue for any period of time.\n6.\nNon-Competition.\n(a)\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such\nemployment for any reason, the Employee will not directly or indirectly:\n(i)\nas an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender,\nconsultant, or in any other capacity whatsoever (other than as the holder of not more than one percent of the combined voting power of\nthe outstanding stock of a publicly-held company), develop, design, produce, market, sell or render (or assist any other person in\ndeveloping, designing, producing, marketing, selling or rendering) products or services competitive with those developed, designed,\nproduced, marketed, sold or rendered by the company while the Employee was employed by the Company; or\n(ii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients,\ncustomers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the\nEmployee while employed by the Company.\n(b)\nIf the Employee violates the provisions of paragraph 6(a), the Employee shall continue to be bound by the restrictions set forth\nin paragraph 6(a) until a period of one year has expired without any violation of such provisions.\n3\n7.\nNon-Solicitation.\n(a)\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such\nemployment for any reason, the Employee will not directly or indirectly recruit, solicit or hire any employee of the Company, or induce or\nattempt to induce any employee of the Company to terminate his employment with, or otherwise cease his relationship with, the Company.\n(b)\nIf the Employee violates the provisions of paragraph 7(a), the Employee shall continue to be bound by the restrictions set forth\nin paragraph 7(a) until a period of one year has expired without any violation of such provisions.\n8.\nMiscellaneous.\n(a)\nThe Employee represents that the execution and performance by him of this Agreement does not and will not conflict with or\nbreach the terms of any other agreement by which the Employee is bound.\n(b)\nThe Employee acknowledges that this Agreement does not constitute a contract of employment and does not imply that the\nCompany will continue his employment for any period of time.\n(c)\nIf any restriction set forth in paragraph 6 or 7 is found by any court of competent jurisdiction to be unenforceable because\nit\nextends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only\nover the maximum period of time, range of activities or geographic area as to which it may be enforceable.\n(d)\nThe Company may assign this Agreement to any other corporation or entity which acquires (whether by purchase, merger,\nconsolidation or otherwise) all or substantially all of the business and/or assets of the Company.\n(e)\nThe invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability, of any other\nprovision of this Agreement.\n(f)\nThis Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his duties, salary or compensation after\nthe signing of this Agreement shall not affect the validity or scope of this Agreement.\n(g)\nThis Agreement will be binding upon the Employee's heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n4\n(h)\nNo delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nother right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to\nor waiver of any right on any other occasion.\n(i)\nThe Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any\nsubsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be resigned at the\ntime of such transfer.\n(j)\nThe restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and\nare considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition\nto such other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(k)\nThis Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the State\nof Texas. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or relating to any provision of this\nAgreement shall be commenced only in a court of the State of Texas and County of Tarrant (or, if appropriate, a federal court located within the\nState of Texas and County of Tarrant), and the Company and the Employee each consents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS\nAND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nLEGACY HOUSING CORPORATION\nDate:\nBy:\nName:\nTitle:\nEMPLOYEE:\nDate:\n(signature)\nPrior Agreements, if any:\n5	EX-10.14 18 a2236789zex-10_14.htm EX-10.14\nExhibit 10.14\nEMPLOYEE INVENTION, NON-DISCLOSURE,\nNON-COMPETITION AND NON-SOLICITATION AGREEMENT\nThis Agreement is made between Legacy Housing Corporation, a Delaware corporation (the “Company”), and\n(the\n“Employee”).\nIn consideration of the employment or the continued employment of the Employee by the Company, the Company and the Employee\nagree as follows:\n1.\nProprietary Information.\n(a)\nThe Employee agrees that all information, whether or not in writing, of a private, secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, processes, methods,\ntechniques, formulas, compositions, compounds, projects’ developments, plans, research data, clinical data, financial data, personnel data,\ncomputer programs, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The\nEmployee will not disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any\npurposes (other than in the performance of his duties as an employee of the Company) without written approval by an officer of the Company,\neither during or after his employment with the Company, unless and until such Proprietary Information has become public knowledge without\nfault by the Employee.\n(b)\nThe Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks,\nprogram listings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee\nor others, which came into his custody and possession as independent contractor to the Company or which shall come into his custody or\npossession, shall be and are the exclusive property of the Company to be used by the Employee only in the performance of his duties for the\nCompany. All such materials or copies thereof and all tangible property of the Company in the custody or possession of the Employee shall be\ndelivered to the Company, upon the earlier of (i) a request by the Company or (ii) termination of his employment. After such delivery, the\nEmployee shall not retain any such materials or copies thereof or any such tangible property.\n(c)\nThe Employee agrees that his obligation not to disclose or to use information and materials of the types set forth in paragraphs\n(a) and (b) above, and his obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to such types of\ninformation, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2.\nDevelopments.\n(a)\nThe Employee will make full and prompt disclosure to the Company of all inventions, improvements, discoveries, methods,\ndevelopments, software, and works of authorship, whether patentable or not, which were or are created, made, conceived or reduced to practice\nby him or under his direction or jointly with others during his employment by the Company or during his provision of services as an independent\ncontractor to the Company, whether or not during normal working hours or on the premises of the Company (all of which are collectively\nreferred to in this Agreement as “Developments”).\n(b)\nThe Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company)\nall his right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the Company and which are made and conceived by the Employee not during normal working hours, not on the Company’s\npremises and not using the Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain\nclasses of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the\nCompany agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c)\nThe Employee agrees to cooperate fully with the Company, both during and after his employment with the Company, with\nrespect to the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States\nand foreign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interests in any Development. The Employee further agrees that if the Company is unable,\nafter reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to\nexecute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints\neach executive officer of the Company as his agent and attorney-in-fact to execute any such papers on his behalf, and to take any and all actions\nas the Company may deem necessary or desirable, in order to protect its rights and interests in any Development, under the conditions described\nin this sentence.\n3.\nOther Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company on page 6 of this Agreement, the\nEmployee is not bound by the terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade\nsecret or confidential or proprietary information in the course of his employment with the Company or to refrain from competing, directly or\nindirectly, with the business of such previous\n2\nemployer or any other party. The Employee further represents that his performance of all the terms of this Agreement and as an employee of the\nCompany does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by the\nEmployee in confidence or in trust prior to his employment with the Company, and the Employee will not disclose to the Company or induce the\nCompany to use any confidential or proprietary information or material belonging to any previous employer or others.\n4.\nUnited States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n5.\nNo Employment Contract.\nThe Employee understands that this Agreement does not constitute a contract of employment and does not imply that his employment\nwill continue for any period of time.\n6.\nNon-Competition.\n(a)\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such\nemployment for any reason, the Employee will not directly or indirectly:\n(i)\nas an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender,\nconsultant, or in any other capacity whatsoever (other than as the holder of not more than one percent of the combined voting power of\nthe outstanding stock of a publicly-held company), develop, design, produce, market, sell or render (or assist any other person in\ndeveloping, designing, producing, marketing, selling or rendering) products or services competitive with those developed, designed,\nproduced, marketed, sold or rendered by the company while the Employee was employed by the Company; or\n(ii)\nsolicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients,\ncustomers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the\nEmployee while employed by the Company.\n(b)\nIf the Employee violates the provisions of paragraph 6(a), the Employee shall continue to be bound by the restrictions set forth\nin paragraph 6(a) until a period of one year has expired without any violation of such provisions.\n3\n7.\nNon-Solicitation.\n(a)\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such\nemployment for any reason, the Employee will not directly or indirectly recruit, solicit or hire any employee of the Company, or induce or\nattempt to induce any employee of the Company to terminate his employment with, or otherwise cease his relationship with, the Company.\n(b)\nIf the Employee violates the provisions of paragraph 7(a), the Employee shall continue to be bound by the restrictions set forth\nin paragraph 7(a) until a period of one year has expired without any violation of such provisions.\n8.\nMiscellaneous.\n(a)\nThe Employee represents that the execution and performance by him of this Agreement does not and will not conflict with or\nbreach the terms of any other agreement by which the Employee is bound.\n(b)\nThe Employee acknowledges that this Agreement does not constitute a contract of employment and does not imply that the\nCompany will continue his employment for any period of time.\n(c)\nIf any restriction set forth in paragraph 6 or 7 is found by any court of competent jurisdiction to be unenforceable because it\nextends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only\nover the maximum period of time, range of activities or geographic area as to which it may be enforceable.\n(d)\nThe Company may assign this Agreement to any other corporation or entity which acquires (whether by purchase, merger,\nconsolidation or otherwise) all or substantially all of the business and/or assets of the Company.\n(e)\nThe invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability, of any other\nprovision of this Agreement.\n(f)\nThis Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his duties, salary or compensation after\nthe signing of this Agreement shall not affect the validity or scope of this Agreement.\n(g)\nThis Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n4\n(h)\nNo delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nother right. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to\nor waiver of any right on any other occasion.\n(i)\nThe Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any\nsubsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be resigned at the\ntime of such transfer.\n(j) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company and\nare considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition\nto such other remedies which may be available, shall be entitled to specific performance and other injunctive relief.\n(k)\nThis Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the State\nof Texas. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or relating to any provision of this\nAgreement shall be commenced only in a court of the State of Texas and County of Tarrant (or, if appropriate, a federal court located within the\nState of Texas and County of Tarrant), and the Company and the Employee each consents to the jurisdiction of such a court.\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS\nAND AGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nLEGACY HOUSING CORPORATION\nDate:\nBy:\nName:\nTitle:\nEMPLOYEE:\nDate:\n(signature)\nPrior Agreements, if any:\n5
+7ee46791374659e1fa47c692df3f0c8a.pdf	effective_date jurisdiction party term	EX-99.(D)(5) 9 dex99d5.htm TWO WAY NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT, DATED\nOCTOBER 28, 2007\nExhibit (d)(5)\nPACKETEER, INC.\nTWO WAY NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nTHIS Agreement is made and entered into by and between PACKETEER, INC. (“Packeteer”) and Blue Coat Systems, Inc., a Delaware\ncorporation, having offices at 420 North Mary Avenue, Sunnyvale, CA 94085, to assure the protection and preservation of the confidential and/or\nproprietary nature of each party’s confidential information. Each party will disclose such information solely for the purpose of evaluating the\npossibility of entering into a business relationship between the parties hereto (the “Purpose”). In reliance upon and in consideration of the following\nundertakings, the parties agree as follows:\n1. Definition. Subject to the limitations set forth in Section 2, all information (including but not limited to ideas, techniques, works of authorship,\nmodels, inventions, know-how, processes, equipment, algorithms, software source documents and formulae related to the current, future, and\nproposed products and services of each of the parties and information concerning research, development, financial information, procurement\nrequirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising, and marketing plans), disclosed by one\nparty (the “Discloser”) to the other party (the “Recipient”) which is labeled or marked “Confidential” or with some other similar proprietary\nlegend, or which, in the context of the disclosure, the Recipient has reason to believe is confidential, shall be deemed to be “Confidential\nInformation.” If Confidential Information is disclosed in oral form, the Discloser shall identify it as confidential at the time of disclosure and\nthereafter summarize it in writing and transmit such summary to the Recipient within thirty (30) days of the oral disclosure.\n2. Exclusions. “Confidential Information” excludes information which: (a) is now or hereafter becomes generally known or available, through no\nact or failure to act on Recipient’s part; (b) Recipient independently knows at the time of receiving such information; (c) a third party hereafter\nfurnishes to Recipient without restriction on disclosure and without breach of any confidentiality obligations; (d) Recipient has independently\ndeveloped without using any Confidential Information or breaching this Agreement; or (e) Discloser gives written permission to Recipient to\ndisclose.\n3. Restrictions/Obligations. Recipient shall: (a) only disclose the Confidential Information to those employees and contractors with a need to\nknow; provided that Recipient binds those employees and contractors to terms at least as restrictive as those stated in this Agreement (or, with\nrespect to professional advisors, advises them of its obligations with respect to the Confidential Information); (b) not disclose any Confidential\nInformation to any third party, without Discloser’s prior written consent; (c) use such Confidential Information only to the extent required to\naccomplish the Purpose; (d) not reproduce Confidential Information in any form except as required to accomplish the Purpose; (e) not reverse\nengineer, decompile, or disassemble any software disclosed by the Discloser; (f) not directly or indirectly export or transmit any Confidential\nInformation to any country to which such export or transmission is restricted by regulation or statute; and (g) promptly provide the Discloser\nwith notice of any actual or threatened breach of the terms of this Agreement. However, Recipient may disclose Confidential Information in\naccordance with a judicial or other governmental order provided that Recipient shall give Discloser written notice prior to such disclosure.\nSubject to Recipient’s obligations of non-disclosure, Recipient shall be free to use the residuals resulting from the use or access to the\nConfidential Information of Discloser. The term “residuals” means information in intangible form which is retained in the unaided memory of\npersons who have had access to the Confidential Information, without reference to such information in tangible or fixed form. Solely with\nrespect to non-technical Confidential Information, Recipient’s obligations under this Section 3 shall expire one (1) year from the date of\ndisclosure of such non-technical Confidential Information.\n4. Ownership and Return of Confidential Information. All Confidential Information (including all copies thereof) shall remain the property of\nDiscloser. All copies shall bear all proprietary markings contained on or in the originals. Upon the request of Discloser, Recipient shall, at\nRecipient’s option, either (a) return such materials to Discloser, or (b) certify the destruction thereof.\n5. Rights. No rights or licenses to trademarks, inventions, copyrights, patents or any other intellectual property rights are implied or granted\nunder this Agreement. Subject to the obligations of this Agreement, neither party will be precluded from independently developing technology\nor pursuing business opportunities similar to those covered by the Confidential Information disclosed hereunder. Each party retains sole\ndiscretion to assign or reassign the job responsibilities of its employees. Each party acknowledges that the other party may currently or in the\nfuture be developing information internally, or receiving information from third parties, that is similar to the Confidential Information. Nothing\nin this Agreement will prohibit Recipient from developing or having developed for it products, concepts, systems or techniques that are similar\nto those contemplated by or embodied in the Confidential Information, provided the Recipient does not violate its obligations under this\nAgreement.\n6. Term and Termination. This Agreement shall remain in full force and effect for a period of three (3) years unless terminated sooner as set\nforth below. This Agreement may be terminated by either party upon thirty (30) days written notice, provided however, that Paragraphs 3, 4, 5,\nand 7 shall survive any termination of this Agreement.\n7. Miscellaneous. This Agreement shall be governed by the laws of the State of California. This Agreement contains the final, complete and\nexclusive agreement of the parties relative to the subject matter hereof and supersedes all prior and contemporaneous understandings and\nagreements relating to its subject matter and may not be changed, modified, amended or supplemented except by a written instrument signed\nby both parties. If any provision of this Agreement is found by a proper authority to be unenforceable, that provision shall be severed and the\nremainder of this Agreement will continue in full force and effect. Recipient hereby acknowledges and agrees that no remedy at law will afford\nDiscloser adequate protection against, or appropriate compensation for, breach of Recipient’s obligations under this Agreement. Accordingly,\nRecipient agrees that Discloser shall be entitled to specific performance of Recipient’s obligations, as well as such further equitable relief as\nmay be granted by a court of competent jurisdiction.\nPACKETEER, INC.\nOTHER PARTY:\nBy: /s/ Dave Côté\n/s/ Brian NeSmith\nBy: Dave Côté\nBy: Brian NeSmith\nTitle: President & CEO\nTitle: President & CEO\nDate: October 20, 2007\nDate: October 28, 2007	EX-99.(D)(5) 9 dex99d5.htm TWO WAY NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT, DATED OCTOBER 28, 2007 Exhibit (d)(5)\nPACKETEER, INC.\nTWO WAY NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nTHIS Agreement is made and entered into by and between PACKETEER, INC. (“Packeteer”) and Blue Coat Systems, Inc., a Delaware\ncorporation, having offices at 420 North Mary Avenue, Sunnyvale, CA 94085, to assure the protection and preservation of the confidential and/or proprietary nature of each party’s confidential information. Each party will disclose such information solely for the purpose of evaluating the possibility of entering into a business relationship between the parties hereto (the “Purpose”). In reliance upon and in consideration of the following undertakings, the parties agree as follows: 1. Definition. Subject to the limitations set forth in Section 2, all information (including but not limited to ideas, techniques, works of authorship,\nmodels, inventions, know-how, processes, equipment, algorithms, software source documents and formulae related to the current, future, and\nproposed products and services of each of the parties and information concerning research, development, financial information, procurement\nrequirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising, and marketing plans), disclosed by one\nparty (the “Discloser”) to the other party (the “Recipient”) which is labeled or marked “Confidential” or with some other similar proprietary\nlegend, or which, in the context of the disclosure, the Recipient has reason to believe is confidential, shall be deemed to be “Confidential\nInformation.” If Confidential Information is disclosed in oral form, the Discloser shall identify it as confidential at the time of disclosure and\nthereafter summarize it in writing and transmit such summary to the Recipient within thirty (30) days of the oral disclosure.\nExclusions. “Confidential Information” excludes information which: (a) is now or hereafter becomes generally known or available, through no\nact or failure to act on Recipient’s part; (b) Recipient independently knows at the time of receiving such information; (c) a third party hereafter\nfurnishes to Recipient without restriction on disclosure and without breach of any confidentiality obligations; (d) Recipient has independently\ndeveloped without using any Confidential Information or breaching this Agreement; or (e) Discloser gives written permission to Recipient to\ndisclose.\nRestrictions/Obligations. Recipient shall: (a) only disclose the Confidential Information to those employees and contractors with a need to\nknow; provided that Recipient binds those employees and contractors to terms at least as restrictive as those stated in this Agreement (or, with\nrespect to professional advisors, advises them of its obligations with respect to the Confidential Information); (b) not disclose any Confidential\nInformation to any third party, without Discloser’s prior written consent; (c) use such Confidential Information only to the extent required to\naccomplish the Purpose; (d) not reproduce Confidential Information in any form except as required to accomplish the Purpose; (e) not reverse\nengineer, decompile, or disassemble any software disclosed by the Discloser; (f) not directly or indirectly export or transmit any Confidential\nInformation to any country to which such export or transmission is restricted by regulation or statute; and (g) promptly provide the Discloser\nwith notice of any actual or threatened breach of the terms of this Agreement. However, Recipient may disclose Confidential Information in\naccordance with a judicial or other governmental order provided that Recipient shall give Discloser written notice prior to such disclosure.\nSubject to Recipient’s obligations of non-disclosure, Recipient shall be free to use the residuals resulting from the use or access to the\nConfidential Information of Discloser. The term “residuals” means information in intangible form which is retained in the unaided memory of\npersons who have had access to the Confidential Information, without reference to such information in tangible or fixed form. Solely with\nrespect to non-technical Confidential Information, Recipient’s obligations under this Section 3 shall expire one (1) year from the date of\ndisclosure of such non-technical Confidential Information.\nOwnership and Return of Confidential Information. All Confidential Information (including all copies thereof) shall remain the property of\nDiscloser. All copies shall bear all proprietary markings contained on or in the originals. Upon the request of Discloser, Recipient shall, at\nRecipient’s option, either (a) return such materials to Discloser, or (b) certify the destruction thereof.\nRights. No rights or licenses to trademarks, inventions, copyrights, patents or any other intellectual property rights are implied or granted\nunder this Agreement. Subject to the obligations of this Agreement, neither party will be precluded from independently developing technology\nor pursuing business opportunities similar to those covered by the Confidential Information disclosed hereunder. Each party retains sole\ndiscretion to assign or reassign the job responsibilities of its employees. Each party acknowledges that the other party may currently or in the\nfuture be developing information internally, or receiving information from third parties, that is similar to the Confidential Information. Nothing\nin this Agreement will prohibit Recipient from developing or having developed for it products, concepts, systems or techniques that are similar\nto those contemplated by or embodied in the Confidential Information, provided the Recipient does not violate its obligations under this\nAgreement.\nTerm and Termination. This Agreement shall remain in full force and effect for a period of three (3) years unless terminated sooner as set\nforth below. This Agreement may be terminated by either party upon thirty (30) days written notice, provided however, that Paragraphs 3, 4, 5,\nand 7 shall survive any termination of this Agreement.\nMiscellaneous. This Agreement shall be governed by the laws of the State of California. This Agreement contains the final, complete and\nexclusive agreement of the parties relative to the subject matter hereof and supersedes all prior and contemporaneous understandings and\nagreements relating to its subject matter and may not be changed, modified, amended or supplemented except by a written instrument signed\nby both parties. If any provision of this Agreement is found by a proper authority to be unenforceable, that provision shall be severed and the\nremainder of this Agreement will continue in full force and effect. Recipient hereby acknowledges and agrees that no remedy at law will afford\nDiscloser adequate protection against, or appropriate compensation for, breach of Recipient’s obligations under this Agreement. Accordingly,\nRecipient agrees that Discloser shall be entitled to specific performance of Recipient’s obligations, as well as such further equitable relief as\nmay be granted by a court of competent jurisdiction.\nPACKETEER, INC.\nBy: /s/ Dave Coté\nBy: Dave Coté\nTitle: President & CEO\nDate: October 20, 2007\nBy:\nTitle:\nDate:\nOTHER PARTY:\n/s/ Brian NeSmith\nBrian NeSmith\nPresident & CEO\nOctober 28, 2007	EX-99.(D)(5) 9 dex99d5.htm TWO WAY NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT, DATED\nOCTOBER 28, 2007\nExhibit (d)(5)\nPACKETEER, INC.\nTWO WAY NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nTHIS Agreement is made and entered into by and between PACKETEER, INC. ("Packeteer") and Blue Coat Systems, Inc., a Delaware\ncorporation, having offices at 420 North Mary Avenue, Sunnyvale, CA 94085, to assure the protection and preservation of the confidential and/or\nproprietary nature of each party's confidential information. Each party will disclose such information solely for the purpose of evaluating the\npossibility of entering into a business relationship between the parties hereto (the "Purpose"). In reliance upon and in consideration of the following\nundertakings, the parties agree as follows:\n1.\nDefinition. Subject to the limitations set forth in Section 2, all information (including but not limited to ideas, techniques, works of authorship,\nmodels, inventions, know-how, processes equipment, algorithms, software source documents and formulae related to the current, future, and\nproposed products and services of each of the parties and information concerning research, development, financial information, procurement\nrequirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising, and marketing plans), disclosed by one\nparty (the "Discloser") to the other party (the "Recipient") which is labeled or marked "Confidential" or with some other similar proprietary\nlegend, or which, in the context of the disclosure, the Recipient has reason to believe is confidential, shall be deemed to be "Confidentia\nInformation." If Confidential Information is disclosed in oral form, the Discloser shall identify it as confidential at the time of disclosure and\nthereafter summarize it in writing and transmit such summary to the Recipient within thirty (30) days of the oral disclosure.\n2.\nExclusions. "Confidential Information" excludes information which: (a) is now or hereafter becomes generally known or available, through no\nact or failure to act on Recipient's part; (b) Recipient independently knows at the time of receiving such information; (c) a third party hereafter\nfurnishes to Recipient without restriction on disclosure and without breach of any confidentiality obligations; (d) Recipient has independently\ndeveloped without using any Confidential Information or breaching this Agreement; or (e) Discloser gives written permission to Recipient to\ndisclose.\n3.\nRestrictions/Obligations. Recipient shall: (a) only disclose the Confidential Information to those employees and contractors with a need to\nknow; provided that Recipient binds those employees and contractors to terms at least as restrictive as those stated in this Agreement (or, with\nrespect\nto\nprofessional\nadvisors,\nadvises\nthem\nof\nits\nobligations\nwith\nrespect\nto\nthe\nConfidential\nInformation);\n(b)\nnot\ndisclose\nany\nConfidentia\nInformation to any third party, without Discloser's prior written consent; (c) use such Confidentia Information only to the extent required to\naccomplish the Purpose; (d) not reproduce Confidential Information in any form except as required to accomplish the Purpose; (e) not reverse\nengineer, decompile, or disassemble any software disclosed by the Discloser; (f) not directly or indirectly export or transmit any Confidential\nInformation to any country to which such export or transmission is restricted by regulation or statute; and (g) promptly provide the Discloser\nwith notice of any actual or threatened breach of the terms of this Agreement. However, Recipient may disclose Confidential Information in\naccordance with a judicial or other governmental order provided that Recipient shall give Discloser written notice prior to such disclosure.\nSubject to Recipient's obligations of non-disclosure, Recipient shall be free to use the residuals resulting from the use or access to the\nConfidential Information of Discloser. The term "residuals" means information in intangible form which is retained in the unaided memory\nof\npersons who have had access to the Confidential Information, without reference to such information in tangible or fixed form. Solely with\nrespect to non-technical Confidential Information, Recipient's obligations under this Section 3 shall expire one (1) year from the date of\ndisclosure of such non-technical Confidential Information.\n4.\nOwnership and Return of Confidential Information. All Confidential Information (including all copies thereof) shall remain the property of\nDiscloser. All copies shall bear all proprietary markings contained on or in the originals. Upon the request of Discloser, Recipient shall, at\nRecipient's option, either (a) return such materials to Discloser, or (b) certify the destruction thereof.\n5.\nRights. No rights or licenses to trademarks, inventions, copyrights, patents or any other intellectual property rights are implied or granted\nunder this Agreement. Subject to the obligations of this Agreement, neither party will be precluded from independently developing technology\nor pursuing business opportunities similar to those covered by the Confidential Information disclosed hereunder. Each party retains sole\ndiscretion to assign or reassign the job responsibilities of its employees. Each party acknowledges that the other party may currently or in the\nfuture be developing information internally, or receiving information from third parties, that is similar to the Confidential Information. Nothing\nin this Agreement will prohibit Recipient from developing or having developed for it products, concepts, systems or techniques that are similar\nto those contemplated by or embodied in the Confidential Information, provided the Recipient does not violate its obligations under this\nAgreement.\n6.\nTerm and Termination. This Agreement shall remain in full force and effect for a period of three (3) years unless terminated sooner as set\nforth below. This Agreement may be terminated by either party upon thirty (30) days written notice, provided however, that Paragraphs 3, 4, 5,\nand 7 shall survive any termination of this Agreement.\n7.\nMiscellaneous. This Agreement shall be governed by the laws of the State of California. This Agreement contains the final, complete and\nexclusive agreement of the parties relative to the subject matter hereof and supersedes all prior and contemporaneous understandings and\nagreements relating to its subject matter and may not be changed, modified, amended or supplemented except by a written instrument signed\nby both parties If any provision of this Agreement is found by a proper authority to be unenforceable, that provision shall be severed and the\nremainder\nof\nthis\nAgreement\nwill\ncontinue\nin\nfull\nforce\nand\neffect.\nRecipient\nhereby\nacknowledges\nand\nagrees\nthat\nno\nremedy\nat\nlaw\nwill\nafford\nDiscloser adequate protection against, or appropriate compensation for, breach of Recipient's obligations under this Agreement. Accordingly,\nRecipient agrees that Discloser shall be entitled to specific performance of Recipient's obligations, as well as such further equitable relief as\nmay be granted by a court of competent jurisdiction.\nPACKETEER, INC.\nOTHER PARTY:\nBy:\n/s/ Dave Cote\n/s/ Brian NeSmith\nBy:\nDave Cote\nBy: Brian NeSmith\nTitle: President & CEO\nTitle: President & CEO\nDate: October 20, 2007\nDate: October 28, 2007	EX-99.(D)(5) 9 dex99d5.htm TWO WAY NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT, DATED\nOCTOBER 28, 2007\nExhibit (d)(5)\nPACKETEER, INC.\nTWO WAY NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT\nTHIS Agreement is made and entered into by and between PACKETEER, INC. (“Packeteer”) and Blue Coat Systems, Inc., a Delaware\ncorporation, having offices at 420 North Mary Avenue, Sunnyvale, CA 94085, to assure the protection and preservation of the confidential and/or\nproprietary nature of each party’s confidential information. Each party will disclose such information solely for the purpose of evaluating the\npossibility of entering into a business relationship between the parties hereto (the “Purpose”). In reliance upon and in consideration of the following\nundertakings, the parties agree as follows:\n1. Definition. Subject to the limitations set forth in Section 2, all information (including but not limited to ideas, techniques, works of authorship,\nmodels, inventions, know-how, processes, equipment, algorithms, software source documents and formulae related to the current, future, and\nproposed products and services of each of the parties and information concerning research, development, financial information, procurement\nrequirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising, and marketing plans), disclosed by one\nparty (the “Discloser”) to the other party (the “Recipient”) which is labeled or marked “Confidential” or with some other similar proprietary\nlegend, or which, in the context of the disclosure, the Recipient has reason to believe is confidential, shall be deemed to be “Confidential\nInformation.” If Confidential Information is disclosed in oral form, the Discloser shall identify it as confidential at the time of disclosure and\nthereafter summarize it in writing and transmit such summary to the Recipient within thirty (30) days of the oral disclosure.\n2. Exclusions. “Confidential Information” excludes information which: (a) is now or hereafter becomes generally known or available, through no\nact or failure to act on Recipient’s part; (b) Recipient independently knows at the time of receiving such information; (c) a third party hereafter\nfurnishes to Recipient without restriction on disclosure and without breach of any confidentiality obligations; (d) Recipient has independently\ndeveloped without using any Confidential Information or breaching this Agreement; or (e) Discloser gives written permission to Recipient to\ndisclose.\n3. Restrictions/Obligations. Recipient shall: (a) only disclose the Confidential Information to those employees and contractors with a need to\nknow; provided that Recipient binds those employees and contractors to terms at least as restrictive as those stated in this Agreement (or, with\nrespect to professional advisors, advises them of its obligations with respect to the Confidential Information); (b) not disclose any Confidential\nInformation to any third party, without Discloser’s prior written consent; (c) use such Confidential Information only to the extent required to\naccomplish the Purpose; (d) not reproduce Confidential Information in any form except as required to accomplish the Purpose; (e) not reverse\nengineer, decompile, or disassemble any software disclosed by the Discloser; (f) not directly or indirectly export or transmit any Confidential\nInformation to any country to which such export or transmission is restricted by regulation or statute; and (g) promptly provide the Discloser\nwith notice of any actual or threatened breach of the terms of this Agreement. However, Recipient may disclose Confidential Information in\naccordance with a judicial or other governmental order provided that Recipient shall give Discloser written notice prior to such disclosure.\nSubject to Recipient’s obligations of non-disclosure, Recipient shall be free to use the residuals resulting from the use or access to the\nConfidential Information of Discloser. The term “residuals” means information in intangible form which is retained in the unaided memory of\npersons who have had access to the Confidential Information, without reference to such information in tangible or fixed form. Solely with\nrespect to non-technical Confidential Information, Recipient’s obligations under this Section 3 shall expire one (1) year from the date of\ndisclosure of such non-technical Confidential Information.\n4. Ownership and Return of Confidential Information. All Confidential Information (including all copies thereof) shall remain the property of\nDiscloser. All copies shall bear all proprietary markings contained on or in the originals. Upon the request of Discloser, Recipient shall, at\nRecipient’s option, either (a) return such materials to Discloser, or (b) certify the destruction thereof.\n5. Rights. No rights or licenses to trademarks, inventions, copyrights, patents or any other intellectual property rights are implied or granted\nunder this Agreement. Subject to the obligations of this Agreement, neither party will be precluded from independently developing technology\nor pursuing business opportunities similar to those covered by the Confidential Information disclosed hereunder. Each party retains sole\ndiscretion to assign or reassign the job responsibilities of its employees. Each party acknowledges that the other party may currently or in the\nfuture be developing information internally, or receiving information from third parties, that is similar to the Confidential Information. Nothing\nin this Agreement will prohibit Recipient from developing or having developed for it products, concepts, systems or techniques that are similar\nto those contemplated by or embodied in the Confidential Information, provided the Recipient does not violate its obligations under this\nAgreement.\n6. Term and Termination. This Agreement shall remain in full force and effect for a period of three (3) years unless terminated sooner as set\nforth below. This Agreement may be terminated by either party upon thirty (30) days written notice, provided however, that Paragraphs 3, 4, 5,\nand 7 shall survive any termination of this Agreement.\n7. Miscellaneous. This Agreement shall be governed by the laws of the State of California. This Agreement contains the final, complete and\nexclusive agreement of the parties relative to the subject matter hereof and supersedes all prior and contemporaneous understandings and\nagreements relating to its subject matter and may not be changed, modified, amended or supplemented except by a written instrument signed\nby both parties. If any provision of this Agreement is found by a proper authority to be unenforceable, that provision shall be severed and the\nremainder of this Agreement will continue in full force and effect. Recipient hereby acknowledges and agrees that no remedy at law will afford\nDiscloser adequate protection against, or appropriate compensation for, breach of Recipient’s obligations under this Agreement. Accordingly,\nRecipient agrees that Discloser shall be entitled to specific performance of Recipient’s obligations, as well as such further equitable relief as\nmay be granted by a court of competent jurisdiction.\nPACKETEER, INC.\nOTHER PARTY:\nBy: /s/ Dave Côté\n/s/ Brian NeSmith\nBy: Dave Côté\nBy: Brian NeSmith\nTitle: President & CEO\nTitle: President & CEO\nDate: October 20, 2007\nDate: October 28, 2007
+806858a7ab08e1c6ed751bfa1b036af4.pdf	effective_date jurisdiction party term	EX-10.4 12 dex104.htm FORM OF STATEMENT OF CONFIDENTIALITY, NON-DISCLOSURE AND NON-\nCOMPETE AGREEMENT\nEXHIBIT 10.4\nFORM OF STATEMENT OF CONFIDENTIALITY, NON-DISCLOSURE\nAND NON-COMPETE AGREEMENT BETWEEN ALCIS-CA AND\nOUR EMPLOYEES, CONSULTANTS AND OTHER THIRD-PARTY CONTRACTORS\nALCiS HEALTH, INC.\nCONFIDENTIAL INFORMATION AND INVENTIONS AGREEMENT\nAs an employee of ALCiS Health, Inc, its subsidiary or its affiliate (together, the “Company”), and in consideration of the compensation now\nand hereafter paid to me, I, the undersigned, agree to the following:\n1. Maintaining Confidential Information\na. Company Information. I agree at all times during the term of my employment and thereafter to hold in strictest confidence, and not to\nuse, except for the benefit of the Company, or to disclose to any person, firm or corporation without written authorization of the Board of Directors\nof the Company, any trade secrets, confidential knowledge, data or other proprietary information relating to products, processes, know-how, designs,\nformulas, developmental or experimental work, computer programs, data bases, other original works of authorship, customer lists, business plans,\nfinancial information or other subject matter pertaining to any business of the Company or any of its clients, consultants or licensees.\nb. Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose any\nproprietary information or trade secrets of my former or concurrent employers or companies, if any, and that I will not bring onto the premises of the\nCompany any unpublished document or any property belonging to my former or concurrent employers or companies, if any, unless consented to in\nwriting by said employers or companies.\nc. Third Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential\nor proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain\nlimited purposes. I agree that I owe the Company and such third parties, during the term of my employment and thereafter, a duty to hold all such\nconfidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation (except as necessary in\ncarrying out my work for the Company consistent with the Company’s agreement with such third party) or to use it for the benefit of anyone other\nthan for the Company or such third party (consistent with the Company’s agreement with such third party) without the express written authorization\nof the Board of Directors of the Company.\n2. Retaining and Assigning Inventions and Original Works\na. Inventions and Original Works Retained by Me. I have attached hereto, as Exhibit A, a list describing all inventions, original works of\nauthorship, developments, improvements, and trade secrets which were made by me prior to my employment with the Company, which belong to\nme, which relate to the Company’s proposed business and products, and which are not assigned to the Company; or, if no such list is attached, I\nrepresent that there are no such inventions.\nb. Inventions and Original Works Assigned to the Company. I agree that I will promptly\nmake full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and will assign to the Company all my\nright, title, and interest in and to any and all inventions, original works of authorship, developments, improvements or trade secrets which I may\nsolely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the period of time I\nam in the employ of the Company. I recognize, however, that Section 2870 of the California Labor Code (as set forth in Exhibit B attached hereto)\nexempts from this provision any invention as to which I can prove the following:\n(i) It was developed entirely on my own time; and\n(ii) No equipment, supplies, facilities or trade secrets of the Company were used in its development; and\n(iii) It either\n(aa) does not relate, at the time the invention was conceived or reduced to practice, to the Company’s business or to the\nCompany’s actual or demonstrably anticipated research and development; or\n(bb) does not result from any work performed by me for the Company.\nI acknowledge that all original works of authorship which are made by me (solely or jointly with others) within the scope of my\nemployment and which are protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act (17 USCA,\nSection 101).\nc. Maintenance of Records. I agree to keep and maintain adequate and current written records of all inventions and original works of\nauthorship made by me (solely or jointly with others) during the term of my employment with the Company. The records will be in the form of\nnotes, sketches, drawings, and any other format that may be specified by the Company. The records will be available to and remain the sole property\nof the Company at all times.\nd. Inventions Assigned to the United States. I agree to assign to the United States government all my right, title, and interest in and to any and\nall inventions, original works of authorship, developments, improvements or trade secrets whenever such full title is required to be in the United\nStates by a contract between the Company and the United States or any of its agencies.\ne. Obtaining Letters Patent and Copyright Registrations. I agree that my obligation to assist the Company to obtain United States or foreign\nletters patent and copyright registrations covering inventions and original works of authorship assigned hereunder to the Company shall continue\nbeyond the termination of my employment, but the Company shall compensate me at a reasonable rate for time actually spent by me at the\nCompany’s request on such assistance. If the Company is unable because of my mental or physical incapacity or for any other reason to secure my\nsignature to apply for or to pursue any application for any United States or foreign letters patent or copyright registrations covering inventions or\noriginal works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the Company and its duly\nauthorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to\ndo all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal\nforce and effect as if executed by me. I hereby waive and quitclaim to the Company any and all claims, of any nature whatsoever, which I now or\nmay hereafter have for infringement of any patents or copyrights, resulting from any such application for letters patent or copyright registrations\nassigned hereunder to the Company.\nf. Exception to Assignments. I understand that the provisions of this Agreement requiring assignment to the Company do not apply to any\ninvention which qualifies fully under the provisions of Section 2870 of the California Labor Code, a copy of which is attached hereto as Exhibit B. I\nwill advise the Company promptly in writing of any inventions, original works of authorship, developments, improvements or trade secrets that I\nbelieve meet the criteria in Subparagraphs 2b(i), (ii), and (iii) above; and I will at that time provide to the Company in writing all evidence necessary\nto substantiate that belief. I understand that the Company will keep in confidence and will not disclose to third parties without my consent any\nconfidential information disclosed in writing to the Company relating to inventions that qualify fully under the provisions of Section 2870 of the\nCalifornia Labor Code.\n3. Conflicting Employment. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during\nthe term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.\n4. Returning Company Documents. I agree that, at the time of leaving the employ of the Company, I will deliver to the Company (and will not keep\nin my possession or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence, specifications,\ndrawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items belonging to the\nCompany, its successors or assigns. In the event of the termination of my employment, I agree to sign and deliver the “Termination Certification”\nattached hereto as Exhibit C.\n5. Representations. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Agreement. I represent\nthat my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information acquired by me\nin confidence or in trust prior to my employment by the Company. I have not entered into, and I agree I will not enter into, any oral or written\nagreement in conflict herewith.\n6. General Provisions\na. Governing Law. This Agreement will be governed by the laws of the State of California.\nb. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and me relating to the subject\nmatter herein and merges all prior discussions between us. No modification of or amendment to this Agreement, nor any waiver of any rights under\nthis agreement, will be effective unless in writing signed by the party to be charged. Any subsequent change or changes in my duties, salary or\ncompensation will not affect the validity or scope of this Agreement.\nc. Severability. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will continue in full\nforce and effect.\nd. Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will\nbe for the benefit of the Company, its successors, and its assigns.\nDate:\nName:\nEXHIBIT A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nTitle\nDate\nIdentifying Number\nor Brief Description\nName of Employee:\nEXHIBIT B\nCALIFORNIA LABOR CODE SECTION 2870\nEMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS\n“(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated\nresearch or development of the employer.\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being\nrequired to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”\nEXHIBIT C\nALCiS HEALTH, INC.\nTERMINATION CERTIFICATION\nThis is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists,\ncorrespondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any\naforementioned items belonging to ALCiS Health, Inc., its subsidiaries, affiliates, successors or assigns (together, the “Company”).\nI further certify that I have complied with all the terms of the Company’s Confidential Information and Inventions Agreement signed by me,\nincluding the reporting of any inventions and original works of authorship (as defined therein), conceived or made by me (solely or jointly with\nothers) covered by that agreement.\nI further agree that, in compliance with the Employee Confidential Information and Inventions Agreement, I will preserve as confidential all trade\nsecrets, confidential knowledge, data or other proprietary information relating to products, processes, know-how, designs, formulas, developmental\nor experimental work, computer programs, data bases, other original works of authorship, customer lists, business plans, financial information or\nother subject matter pertaining to any business of the Company or any of its clients, consultants or licensees.\nDate:\nName:\nNondisclosure and Non-Circumvention Agreement\nTHIS AGREEMENT is made this day of\n, 2006 (the “Effective Date”), by and between ALCIS HEALTH, INC. (“Company”) and\n(“Recipient”).\nThe undersigned intend to engage in discussions concerning the Company’s actual or proposed technology, technology acquisitions (including but\nnot limited to acquisition of patented anti-inflammatory and liposomal delivery system technologies), designs, concepts, innovations, products and/or\nservices of Company and plans, studies or projections with respect thereto, all of which are non-public and unannounced, relating to the Company’s\ncurrent and planned products (hereinafter collectively referred to as the “Company Business”);\nWhereas Recipient desires to obtain certain information for the sole purpose of entering into a business or investment relationship with the Company,\nunderstanding that the Contact Sources are important and valuable to the Company’s current and future business ventures, and whereas Recipient has\nno intent to partner with such Contact Sources in a manner which is not in Company’s best interests;\nWhereas, because such discussions may require disclosure of information considered confidential and proprietary by Company, including the\nidentity of the current owner of the patented anti-inflammatory and liposomal delivery system technologies, and because Company will participate in\nsuch discussions only upon the understanding set forth herein, Recipient agrees with Company that Recipient will maintain the secrecy of such\ninformation as set forth below;\nFor good and valuable consideration, which is hereby acknowledged as received, the parties agree as follows:\n(1) For the purposes of establishing and enforcing this Agreement, the parties do hereby agree upon the following definitions as used herein:\n“Representative Relationship” shall be interpreted to mean any agent, licensee, employment or independent contractor relationship\nentered into for the purpose of providing or receiving funds, license rights, technology, products and/or services from or to the Contact\nSource.\n“Contact Source” shall be interpreted to mean any person, partnership, corporation or other legal entity, including but not limited to those\npersons, partnerships, corporations or other legal entities with whom Company has a current working relationship.\n(2) For each Contact Source disclosed by Company, the term (“Term”) of this Agreement shall commence on the Effective Date and continue until\nthree (3) years after the date Company’s contractual relationship with such Contact Source terminates. The Term for any Contact Source shall extend\nto and continue during any Company/Contact Source contract renewal periods. During the Term, Recipient does hereby agree that neither Recipient\nnor Recipient’s employees, agents, consultants, corporations, divisions, subsidiaries or partnerships or any other person, group or entity associated\nwith Recipient, will make contact with, attempt to deal with or enter into (i) any competitive contract with such Contact Source, (ii) any contract or\nrelationship with such Contact Source which is harmful to Company’s interests or (iii) any Representative Relationship with any Contact Source\nintroduced to Recipient by agents or principals of Company, without Company’s prior written consent to such contract or relationship, which may be\nwithheld in Company’s reasonable discretion.\n(3) Recipient does hereby agree to keep confidential and not to disclose the name, address, telephone, and fax number(s) of any Contact Source\nintroduced to Recipient by agents or principals of Company, as well as any other confidential information that Recipient receives during the Term.\nRecipient does further agree and acknowledge that such information, including the identity and means of contact of any Contact Source introduced\nto Recipient by agents or principals of Company, is the proprietary information, trade secret and property of Company and shall so remain for the\nTerm. Upon termination of discussions or upon the written request of Company, Recipient will return forthwith all written or descriptive matter of\nevery kind including but not limited to models, prototypes, notes, documents, etc. which contain such Confidential Information. Recipient agrees to\nhold each item of Confidential Information received in confidence until three (3) years after the expiration or termination of this Agreement.\n(4) “Confidential Information”, as used herein, shall mean all information, noted as “Confidential” as set forth below, which is disclosed or\notherwise provided by Company, or any representations thereof which relates to or refers to Company information, business strategy, and\ntechnology. Confidential Information shall not include such information:\na.\nwhich was in the public domain prior to any such disclosure by Company;\nb.\nwhich, after disclosure by Company, comes into the public domain through no fault of the Recipient;\nc.\nwhich is disclosed to Recipient by a third party lawfully and with a legitimate right to disclose; or\nd.\nwhich was in the legitimate possession of Recipient prior to such disclosure as evidenced by Recipient’s written records.\nRecipient will hold all Confidential Information in trust and confidence; and will not at any time, without the prior written consent of Company,\ndisclose Confidential Information to any person other than an employee of Recipient who is bound to maintain the confidentiality of such\nConfidential Information and who has an actual need to know such Confidential Information in order to advance the purposes of this Agreement and\nthe discussions pursuant hereto; and, will not use or employ any Confidential Information in connection with any business or commercial activity\nwhich is separate from or does not involve Company. Notwithstanding the definition of Company Information, and notwithstanding the public filing\nstatus of the anti-inflammatory and liposomal delivery system patents, Recipient will not discuss the anti-inflammatory and liposomal delivery\nsystem patents or their availability for acquisition with any party other than the Company for a period of 3 years from execution of this agreement.\n(5) In the event that any litigation is commenced between the Recipient and Company relative to this Agreement or the rights and duties of the\nRecipient or Company under this Agreement, the prevailing party in any such litigation shall be entitled, in addition to such relief as may be granted,\nto the actual sum expended for attorneys’ fees and court costs as determined by the court in such litigation. Should any part or provision of this\nAgreement be deemed invalid or unenforceable, it is the intention of the parties hereto that the remaining portions of the Agreement shall remain in\nfull force and effect. This Agreement shall be binding upon and inure to the benefit of the successors, heirs, assignees, agents and principals of the\nparties hereto. This Agreement shall not be modified or amended except in writing and signed by the parties hereto and specifically referring to this\nAgreement. This Agreement shall be construed under the laws of California, United States of America and any dispute arising out of this Agreement\nshall be adjudicated in a court in the State of California, United States of America.\nIN WITNESS WHEREOF, this Agreement is executed in the City of San Jose, County of Santa Clara, pursuant to the Laws of the State of California\non the date first hereinabove written.\nALCIS HEALTH, INC.\nRecipient:\n560 S. Winchester Blvd., Fifth Floor, San Jose, CA 95120\nSignature _____________________________________\nSignature ____________________________________\nName ________________________________________\nName _______________________________________\nTitle _________________________________________\nTitle ________________________________________\nDate:\n, 2006\n, 2006	EX-10.4 12 dex104.htm FORM OF STATEMENT OF CONFIDENTIALITY, NON-DISCLOSURE AND NON-\nCOMPETE AGREEMENT\nEXHIBIT 10.4\nFORM OF STATEMENT OF CONFIDENTIALITY, NON-DISCLOSURE\nAND NON-COMPETE AGREEMENT BETWEEN ALCIS-CAAND\nOUR EMPLOYEES, CONSULTANTS AND OTHER THIRD-PARTY CONTRACTORS\nALCiS HEALTH, INC.\nCONFIDENTIAL INFORMATION AND INVENTIONS AGREEMENT\nAs an employee of ALCiS Health, Inc, its subsidiary or its affiliate (together, the “Company”), and in consideration of the compensation now\nand hereafter paid to me, I, the undersigned, agree to the following:\n1. Maintaining Confidential Information\na. Company Information. I agree at all times during the term of my employment and thereafter to hold in strictest confidence, and not to\nuse, except for the benefit of the Company, or to disclose to any person, firm or corporation without written authorization of the Board of Directors\nof the Company, any trade secrets, confidential knowledge, data or other proprietary information relating to products, processes, know-how, designs,\nformulas, developmental or experimental work, computer programs, data bases, other original works of authorship, customer lists, business plans,\nfinancial information or other subject matter pertaining to any business of the Company or any of its clients, consultants or licensees.\nb. Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose any\nproprietary information or trade secrets of my former or concurrent employers or companies, if any, and that I will not bring onto the premises of the\nCompany any unpublished document or any property belonging to my former or concurrent employers or companies, if any, unless consented to in\nwriting by said employers or companies.\nc. Third Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential\nor proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain\nlimited purposes. I agree that I owe the Company and such third parties, during the term of my employment and thereafter, a duty to hold all such\nconfidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation (except as necessary in\ncarrying out my work for the Company consistent with the Company’s agreement with such third party) or to use it for the benefit of anyone other\nthan for the Company or such third party (consistent with the Company’s agreement with such third party) without the express written authorization\nof the Board of Directors of the Company.\na. Inventions and Original Works Retained by Me. I have attached hereto, as Exhibit A, a list describing all inventions, original works of\nauthorship, developments, improvements, and trade secrets which were made by me prior to my employment with the Company, which belong to\nme, which relate to the Company’s proposed business and products, and which are not assigned to the Company; or, if no such list is attached, I\nrepresent that there are no such inventions.\nb. Inventions and Original Works Assigned to the Company. I agree that I will promptly\nmake full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and will assign to the Company all my\nright, title, and interest in and to any and all inventions, original works of authorship, developments, improvements or trade secrets which I may\nsolely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the period of time I\nam in the employ of the Company. I recognize, however, that Section 2870 of the California Labor Code (as set forth in Exhibit B attached hereto)\nexempts from this provision any invention as to which I can prove the following:\n(i) It was developed entirely on my own time; and\n(ii) No equipment, supplies, facilities or trade secrets of the Company were used in its development; and\n(iii) Tt either\n(aa) does not relate, at the time the invention was conceived or reduced to practice, to the Company’s business or to the\nCompany’s actual or demonstrably anticipated research and development; or\n(bb) does not result from any work performed by me for the Company.\nI acknowledge that all original works of authorship which are made by me (solely or jointly with others) within the scope of my\nemployment and which are protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act (17 USCA,\nSection 101).\nc. Maintenance of Records. I agree to keep and maintain adequate and current written records of all inventions and original works of\nauthorship made by me (solely or jointly with others) during the term of my employment with the Company. The records will be in the form of\nnotes, sketches, drawings, and any other format that may be specified by the Company. The records will be available to and remain the sole property\nof the Company at all times.\nd. Inventions Assigned to the United States. I agree to assign to the United States government all my right, title, and interest in and to any and\nall inventions, original works of authorship, developments, improvements or trade secrets whenever such full title is required to be in the United\nStates by a contract between the Company and the United States or any of its agencies.\ne. Obtaining Letters Patent and Copyright Registrations. I agree that my obligation to assist the Company to obtain United States or foreign\nletters patent and copyright registrations covering inventions and original works of authorship assigned hereunder to the Company shall continue\nbeyond the termination of my employment, but the Company shall compensate me at a reasonable rate for time actually spent by me at the\nCompany’s request on such assistance. If the Company is unable because of my mental or physical incapacity or for any other reason to secure my\nsignature to apply for or to pursue any application for any United States or foreign letters patent or copyright registrations covering inventions or\noriginal works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the Company and its duly\nauthorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to\ndo all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal\nforce and effect as if executed by me. I hereby waive and quitclaim to the Company any and all claims, of any nature whatsoever, which I now or\nmay hereafter have for infringement of any patents or copyrights, resulting from any such application for letters patent or copyright registrations\nassigned hereunder to the Company.\nf. Exception to Assignments. I understand that the provisions of this Agreement requiring assignment to the Company do not apply to any\ninvention which qualifies fully under the provisions of Section 2870 of the California Labor Code, a copy of which is attached hereto as Exhibit B. I\nwill advise the Company promptly in writing of any inventions, original works of authorship, developments, improvements or trade secrets that I\nbelieve meet the criteria in Subparagraphs 2b(i), (ii), and (iii) above; and I will at that time provide to the Company in writing all evidence necessary\nto substantiate that belief. I understand that the Company will keep in confidence and will not disclose to third parties without my consent any\nconfidential information disclosed in writing to the Company relating to inventions that qualify fully under the provisions of Section 2870 of the\nCalifornia Labor Code.\n3. Conflicting Employment. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during\nthe term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.\n4. Returning Company Documents. I agree that, at the time of leaving the employ of the Company, I will deliver to the Company (and will not keep\nin my possession or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence, specifications,\ndrawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items belonging to the\nCompany, its successors or assigns. In the event of the termination of my employment, I agree to sign and deliver the “Termination Certification”\nattached hereto as Exhibit C.\n5. Representations. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Agreement. I represent\nthat my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information acquired by me\nin confidence or in trust prior to my employment by the Company. I have not entered into, and I agree I will not enter into, any oral or written\nagreement in conflict herewith.\n6. General Provisions\na. Governing Law. This Agreement will be governed by the laws of the State of California.\nb. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and me relating to the subject\nmatter herein and merges all prior discussions between us. No modification of or amendment to this Agreement, nor any waiver of any rights under\nthis agreement, will be effective unless in writing signed by the party to be charged. Any subsequent change or changes in my duties, salary or\ncompensation will not affect the validity or scope of this Agreement.\nc. Severability. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will continue in full\nforce and effect.\nd. Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will\nbe for the benefit of the Company, its successors, and its assigns.\nDate:\nName:\nEXHIBIT A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nIdentifying Number\nTitle Date or Brief Description\nName of Employee:\nEXHIBIT B\nCALIFORNIA LABOR CODE SECTION 2870\nEMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS\n“(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated\nresearch or development of the employer.\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being\nrequired to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”\nEXHIBIT C\nALCiS HEALTH, INC.\nTERMINATION CERTIFICATION\nThis is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists,\ncorrespondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any\naforementioned items belonging to ALCiS Health, Inc., its subsidiaries, affiliates, successors or assigns (together, the “Company”).\nI further certify that I have complied with all the terms of the Company’s Confidential Information and Inventions Agreement signed by me,\nincluding the reporting of any inventions and original works of authorship (as defined therein), conceived or made by me (solely or jointly with\nothers) covered by that agreement.\nI further agree that, in compliance with the Employee Confidential Information and Inventions Agreement, I will preserve as confidential all trade\nsecrets, confidential knowledge, data or other proprietary information relating to products, processes, know-how, designs, formulas, developmental\nor experimental work, computer programs, data bases, other original works of authorship, customer lists, business plans, financial information or\nother subject matter pertaining to any business of the Company or any of its clients, consultants or licensees.\nDate:\nName:\nNondisclosure and Non-Circumvention Agreement\nTHIS AGREEMENT is made this __ day of , 2006 (the “Effective Date”), by and between ALCIS HEALTH, INC. (“Company”) and\n(“Recipient”).\nThe undersigned intend to engage in discussions concerning the Company’s actual or proposed technology, technology acquisitions (including but\nnot limited to acquisition of patented anti-inflammatory and liposomal delivery system technologies), designs, concepts, innovations, products and/or\nservices of Company and plans, studies or projections with respect thereto, all of which are non-public and unannounced, relating to the Company’s\ncurrent and planned products (hereinafter collectively referred to as the “Company Business™);\nWhereas Recipient desires to obtain certain information for the sole purpose of entering into a business or investment relationship with the Company,\nunderstanding that the Contact Sources are important and valuable to the Company’s current and future business ventures, and whereas Recipient has\nno intent to partner with such Contact Sources in a manner which is not in Company’s best interests;\nWhereas, because such discussions may require disclosure of information considered confidential and proprietary by Company, including the\nidentity of the current owner of the patented anti-inflammatory and liposomal delivery system technologies, and because Company will participate in\nsuch discussions only upon the understanding set forth herein, Recipient agrees with Company that Recipient will maintain the secrecy of such\ninformation as set forth below;\nFor good and valuable consideration, which is hereby acknowledged as received, the parties agree as follows:\n(1) For the purposes of establishing and enforcing this Agreement, the parties do hereby agree upon the following definitions as used herein:\n“Representative Relationship” shall be interpreted to mean any agent, licensee, employment or independent contractor relationship\nentered into for the purpose of providing or receiving funds, license rights, technology, products and/or services from or to the Contact\nSource.\n“Contact Source” shall be interpreted to mean any person, partnership, corporation or other legal entity, including but not limited to those\npersons, partnerships, corporations or other legal entities with whom Company has a current working relationship.\n(2) For each Contact Source disclosed by Company, the term (“Term”) of this Agreement shall commence on the Effective Date and continue until\nthree (3) years after the date Company’s contractual relationship with such Contact Source terminates. The Term for any Contact Source shall extend\nto and continue during any Company/Contact Source contract renewal periods. During the Term, Recipient does hereby agree that neither Recipient\nnor Recipient’s employees, agents, consultants, corporations, divisions, subsidiaries or partnerships or any other person, group or entity associated\nwith Recipient, will make contact with, attempt to deal with or enter into (i) any competitive contract with such Contact Source, (ii) any contract or\nrelationship with such Contact Source which is harmful to Company’s interests or (iii) any Representative Relationship with any Contact Source\nintroduced to Recipient by agents or principals of Company, without Company’s prior written consent to such contract or relationship, which may be\nwithheld in Company’s reasonable discretion.\n(3) Recipient does hereby agree to keep confidential and not to disclose the name, address, telephone, and fax number(s) of any Contact Source\nintroduced to Recipient by agents or principals of Company, as well as any other confidential information that Recipient receives during the Term.\nRecipient does further agree and acknowledge that such information, including the identity and means of contact of any Contact Source introduced\nto Recipient by agents or principals of Company, is the proprietary information, trade secret and property of Company and shall so remain for the\nTerm. Upon termination of discussions or upon the written request of Company, Recipient will return forthwith all written or descriptive matter of\nevery kind including but not limited to models, prototypes, notes, documents, etc. which contain such Confidential Information. Recipient agrees to\nhold each item of Confidential Information received in confidence until three (3) years after the expiration or termination of this Agreement.\n(4) “Confidential Information”, as used herein, shall mean all information, noted as “Confidential” as set forth below, which is disclosed or\notherwise provided by Company, or any representations thereof which relates to or refers to Company information, business strategy, and\ntechnology. Confidential Information shall not include such information:\na which was in the public domain prior to any such disclosure by Company;\nb.  which, after disclosure by Company, comes into the public domain through no fault of the Recipient;\nc.  which is disclosed to Recipient by a third party lawfully and with a legitimate right to disclose; or\nd.  which was in the legitimate possession of Recipient prior to such disclosure as evidenced by Recipient’s written records.\nRecipient will hold all Confidential Information in trust and confidence; and will not at any time, without the prior written consent of Company,\ndisclose Confidential Information to any person other than an employee of Recipient who is bound to maintain the confidentiality of such\nConfidential Information and who has an actual need to know such Confidential Information in order to advance the purposes of this Agreement and\nthe discussions pursuant hereto; and, will not use or employ any Confidential Information in connection with any business or commercial activity\nwhich is separate from or does not involve Company. Notwithstanding the definition of Company Information, and notwithstanding the public filing\nstatus of the anti-inflammatory and liposomal delivery system patents, Recipient will not discuss the anti-inflammatory and liposomal delivery\nsystem patents or their availability for acquisition with any party other than the Company for a period of 3 years from execution of this agreement.\n(5) In the event that any litigation is commenced between the Recipient and Company relative to this Agreement or the rights and duties of the\nRecipient or Company under this Agreement, the prevailing party in any such litigation shall be entitled, in addition to such relief as may be granted,\nto the actual sum expended for attorneys’ fees and court costs as determined by the court in such litigation. Should any part or provision of this\nAgreement be deemed invalid or unenforceable, it is the intention of the parties hereto that the remaining portions of the Agreement shall remain in\nfull force and effect. This Agreement shall be binding upon and inure to the benefit of the successors, heirs, assignees, agents and principals of the\nparties hereto. This Agreement shall not be modified or amended except in writing and signed by the parties hereto and specifically referring to this\nAgreement. This Agreement shall be construed under the laws of California, United States of America and any dispute arising out of this Agreement\nshall be adjudicated in a court in the State of California, United States of America.\nIN WITNESS WHEREOF, this Agreement is executed in the City of San Jose, County of Santa Clara, pursuant to the Laws of the State of California\non the date first hereinabove written.\nALCIS HEALTH, INC. Recipient:\n560 S. Winchester Blvd., Fifth Floor, San Jose, CA 95120\n \n \n \n \nSignature Signature\nName Name\nTitle Title\n \n \nDate: , 2006 , 2006	EX-10.4 12 lex104.htm FORM OF STATEMENT OF CONFIDENTIALITY, NON-DISCLOSURE AND NON-\nCOMPETE AGREEMENT\nEXHIBIT 10.4\nFORM OF STATEMENT OF CONFIDENTIALITY, NON-DISCLOSURE\nAND NON-COMPETE AGREEMENT BETWEEN ALCIS-CAAND\nOUR EMPLOYEES, CONSULTANTS AND OTHER THIRD-PARTY CONTRACTORS\nALCiS HEALTH, INC.\nCONFIDENTIAL INFORMATION AND INVENTIONS AGREEMENT\nAs an employee of ALCiS Health, Inc, its subsidiary or its affiliate (together, the "Company"), and in consideration of the compensation now\nand hereafter paid to me, I, the undersigned, agree to the following:\n1. Maintaining Confidential Information\na.\nCompany Information. I agree at all times during the term of my employment and thereafter to hold in strictest confidence, and not to\nuse, except for the benefit of the Company, or to disclose to any person, firm or corporation without written authorization of the Board of Directors\nof\nthe Company, any trade secrets, confidential knowledge, data or other proprietary information relating to products, processes, know-how, designs,\nformulas, developmental or experimental work, computer programs, data bases, other original works of authorship, customer lists, business plans,\nfinancial information or other subject matter pertaining to any business of the Company or any of its clients, consultants or licensees.\nb. Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose any\nproprietary information or trade secrets of my former or concurrent employers or companies, if any, and that I will not bring onto the premises of the\nCompany any unpublished document or any property belonging to my former or concurrent employers or companies, if any, unless consented to in\nwriting by said employers or companies.\nc. Third Party. Information. I recognize that the Company has received and in the future will receive from third parties their confidential\nor proprietary information subject to a duty on the Company's part to maintain the confidentiality of such information and to use it only for certain\nlimited purposes. I agree that I owe the Company and such third parties, during the term of my employment and thereafter, a duty to hold all such\nconfidential\nor\nproprietary information in the strictest confidence and not to disclose it to any person, firm or corporation (except as necessary\nin\ncarrying out my work for the Company consistent with the Company's agreement with such third party) or to use it for the benefit of anyone other\nthan for the Company or such third party (consistent with the Company's agreement with such third party) without the express written authorization\nof the Board of Directors of the Company.\n2. Retaining and Assigning Inventions and Original Works\na. Inventions and Original Works Retained by Me. I have attached hereto, as Exhibit A, a list describing all inventions, original works of\nauthorship, developments, improvements, and trade secrets which were made by me prior to my employment with the Company, which belong to\nme, which relate to the Company's proposed business and products, and which are not assigned to the Company; or, if no such list is attached, I\nrepresent that there are no such inventions.\nb. Inventions and Original Works Assigned to the Company. I agree that I will promptly\nmake full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and will assign to the Company all my\nright, title, and interest in and to any and all inventions, original works of authorship, developments, improvements or trade secrets which I may\nsolely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the period of time\nI\nam in the employ of the Company. I recognize, however, that Section 2870 of the California Labor Code (as set forth in Exhibit B attached hereto)\nexempts from this provision any invention as to which I can prove the following:\n(i) It was developed entirely on my own time; and\n(ii) No equipment, supplies, facilities or trade secrets of the Company were used in its development; and\n(iii) It either\n(aa) does not relate, at the time the invention was conceived or reduced to practice, to the Company's business or to\nthe\nCompany's actual or demonstrably anticipated research and development; or\n(bb) does not result from any work performed by me for the Company.\nI acknowledge that all original works of authorship which are made by me (solely or jointly with others) within the scope of my\nemployment and which are protectable by copyright are "works made for hire," as that term is defined in the United States Copyright Act (17 USCA,\nSection 101).\nC. Maintenance of Records. I agree to keep and maintain adequate and current written records of all inventions and original works of\nauthorship made by me (solely or jointly with others) during the term of my employment with the Company. The records will be in the form of\nnotes, sketches, drawings, and any other format that may be specified by the Company. The records will be available to and remain the sole property\nof the Company at all times.\nd. Inventions Assigned to the United States. I agree to assign to the United States government all my right, title, and interest in and to any and\nall inventions, original works of authorship, developments, improvements or trade secrets whenever such full title is required to be in the United\nStates by a contract between the Company and the United States or any of its agencies.\ne. Obtaining Letters Patent and Copyright Registrations. I agree that my obligation to assist the Company to obtain United States or foreign\nletters patent and copyright registrations covering inventions and original works of authorship assigned hereunder to the Company shall continue\nbeyond the termination of my employment, but the Company shall compensate me at a reasonable rate for time actually spent by me at the\nCompany's request on such assistance. If the Company is unable because of my mental or physical incapacity or for any other reason to secure my\nsignature to apply for or to pursue any application for any United States or foreign letters patent or copyright registrations covering inventions or\noriginal works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the Company and its duly\nauthorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to\ndo all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal\nforce and effect as if executed by me. I hereby waive and quitclaim to the Company any and all claims, of any nature whatsoever, which I now\nor\nmay hereafter have for infringement of any patents or copyrights, resulting from any such application for letters patent or copyright registrations\nassigned hereunder to the Company.\nf. Exception to Assignments. I understand that the provisions of this Agreement requiring assignment to the Company do not apply to any\ninvention which qualifies fully under the provisions of Section 2870 of the California Labor Code, a copy of which is attached hereto as Exhibit B.\nI\nwill advise the Company promptly in writing of any inventions, original works of authorship, developments, improvements or trade secrets that\nI\nbelieve meet the criteria in Subparagraphs 2b(i), (ii), and (iii) above; and I will at that time provide to the Company in writing all evidence necessary\nto substantiate that belief. I understand that the Company will keep in confidence and will not disclose to third parties without my consent any\nconfidential information disclosed in writing to the Company relating to inventions that qualify fully under the provisions of Section 2870 of the\nCalifornia Labor Code.\n3. Conflicting Employment. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during\nthe term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.\n4. Returning Company Documents. I agree that, at the time of leaving the employ of the Company, I will deliver to the Company (and will not keep\nin my possession or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence, specifications,\ndrawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items belonging to the\nCompany, its successors or assigns. In the event of the termination of my employment, I agree to sign and deliver the "Termination Certification"\nattached hereto as Exhibit C.\n5. Representations. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Agreement. I represent\nthat my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information acquired by me\nin confidence or in trust prior to my employment by the Company. I have not entered into, and I agree I will not enter into, any oral or written\nagreement in conflict herewith.\n6. General Provisions\na. Governing Law. This Agreement will be governed by the laws of the State of California.\nb. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and me relating to the subject\nmatter herein and merges all prior discussions between us. No modification of or amendment to this Agreement, nor any waiver of any rights under\nthis agreement, will be effective unless in writing signed by the party to be charged. Any subsequent change or changes in my duties, salary or\ncompensation will not affect the validity or scope of this Agreement.\nC. Severability. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will continue in full\nforce and effect.\nd. Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will\nbe for the benefit of the Company, its successors, and its assigns.\nDate:\nName:\nEXHIBIT A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nIdentifying Number\nTitle\nDate\nor Brief Description\nName of Employee:\nEXHIBIT B\nCALIFORNIA LABOR CODE SECTION 2870\nEMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS\n"(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer's equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated\nresearch or development of the employer.\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being\nrequired to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable."\nEXHIBIT C\nALCiS HEALTH, INC.\nTERMINATION CERTIFICATION\nThis is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists,\ncorrespondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any\naforementioned items belonging to ALCiS Health, Inc., its subsidiaries, affiliates, successors or assigns (together, the "Company").\nI further certify that I have complied with all the terms of the Company's Confidential Information and Inventions Agreement signed by me,\nincluding the reporting of any inventions and original works of authorship (as defined therein), conceived or made by me (solely or jointly with\nothers) covered by that agreement.\nI further agree that, in compliance with the Employee Confidential Information and Inventions Agreement, I will preserve as confidentia all trade\nsecrets,\nconfidential knowledge, data or other proprietary information relating to products, processes, know-how, designs, formulas, developmental\nor experimental work, computer programs, data bases, other original works of authorship, customer lists, business plans, financial information or\nother subject matter pertaining to any business of the Company or any of its clients, consultants or licensees.\nDate:\nName:\nNondisclosure and Non-Circumvention Agreement\nTHIS AGREEMENT is made this\nday\nof\n2006 (the "Effective Date"), by and between ALCIS HEALTH, INC. ("Company") and\n("Recipient").\nThe undersigned intend to engage in discussions concerning the Company's actual or proposed technology, technology acquisitions (including but\nnot limited to acquisition of patented anti-inflammatory and liposomal delivery system technologies), designs, concepts, innovations, products and/or\nservices of Company and plans, studies or projections with respect thereto, all of which are non-public and unannounced, relating to the Company's\ncurrent and planned products (hereinafter collectively referred to as the "Company Business");\nWhereas Recipient desires to obtain certain information for the sole purpose of entering into a business or investment relationship with the Company,\nunderstanding that the Contact Sources are important and valuable to the Company's current and future business ventures, and whereas\nRecipient\nhas\nno intent to partner with such Contact Sources in a manner which is not in Company's best interests;\nWhereas, because such discussions may require disclosure of information considered confidential and proprietary by Company, including the\nidentity of the current owner of the patented anti-inflammatory and liposomal delivery system technologies, and because Company will participate in\nsuch discussions only upon the understanding set forth herein, Recipient agrees with Company that Recipient will maintain the secrecy of such\ninformation as set forth below;\nFor good and valuable consideration, which is hereby acknowledged as received, the parties agree as follows:\n(1) For the purposes of establishing and enforcing this Agreement, the parties do hereby agree upon the following definitions as used herein:\n"Representative Relationship" shall be interpreted to mean any agent, licensee, employment or independent contractor relationship\nentered into for the purpose of providing or receiving funds, license rights, technology, products and/or services from or to the Contact\nSource.\n"Contact Source" shall be interpreted to mean any person, partnership, corporation or other legal entity, including but not limited to those\npersons, partnerships, corporations or other legal entities with whom Company has a current working relationship.\n(2) For each Contact Source disclosed by Company, the term ("Term") of this Agreement shall commence on the Effective Date and continue until\nthree (3) years after the date Company's contractual relationship with such Contact Source terminates. The Term for any Contact Source\nshall\nextend\nto and continue during any Company/Contact Source contract renewal periods. During the Term, Recipient does hereby agree that neither Recipient\nnor Recipient's employees, agents, consultants, corporations, divisions, subsidiaries or partnerships or any other person, group or entity associated\nwith Recipient, will make contact with, attempt to deal with or enter into (i) any competitive contract with such Contact Source, (ii) any contract or\nrelationship with such Contact Source which is harmful to Company's interests or (iii) any Representative Relationship with any Contact Source\nintroduced to Recipient by agents or principals of Company, without Company's prior written consent to such contract or relationship, which may\nbe\nwithheld in Company's reasonable discretion.\n(3) Recipient does hereby agree to keep confidential and not to disclose the name, address, telephone, and fax number(s) of any Contact Source\nintroduced to Recipient by agents or principals of Company, as well as any other confidential information that Recipient receives during the Term.\nRecipient does further agree and acknowledge that such information, including the identity and means of contact of any Contact Source introduced\nto Recipient by agents or principals of Company, is the proprietary information, trade secret and property of Company and shall so remain for\nthe\nTerm. Upon termination of discussions or upon the written request of Company, Recipient will return forthwith all written or descriptive matter\nof\nevery kind including but not limited to models, prototypes, notes, documents, etc. which contain such Confidential Information. Recipient agrees to\nhold each item of Confidential Information received in confidence until three (3) years after the expiration or termination of this Agreement.\n(4) "Confidential Information", as used herein, shall mean all information, noted as "Confidential" as set forth below, which is disclosed\nor\notherwise provided by Company, or any representations thereof which relates to or refers to Company information, business strategy, and\ntechnology. Confidential Information shall not include such information:\na.\nwhich was in the public domain prior to any such disclosure by Company;\nb.\nwhich, after disclosure by Company, comes into the public domain through no fault of the Recipient;\nC.\nwhich is disclosed to Recipient by a third party lawfully and with a legitimate right to disclose; or\nd.\nwhich was in the legitimate possession of Recipient prior to such disclosure as evidenced by Recipient's written records.\nRecipient will hold all Confidential Information in trust and confidence; and will not at any time, without the prior written consent of Company,\ndisclose Confidential Information to any person other than an employee of Recipient who is bound to maintain the confidentiality of such\nConfidential Information and who has an actual need to know such Confidential Information in order to advance the purposes of this Agreement and\nthe discussions pursuant hereto; and, will not use or employ any Confidential Information in connection with any business or commercial activity\nwhich is separate from or does not involve Company. Notwithstanding the definition of Company Information, and notwithstanding the public filing\nstatus of the anti-inflammatory and liposomal delivery system patents, Recipient will not discuss the anti-inflammatory and liposomal delivery\nsystem patents or their availability for acquisition with any party other than the Company for a period of 3 years from execution of this agreement.\n(5) In the event that any litigation is commenced between the Recipient and Company relative to this Agreement or the rights and duties of the\nRecipient or Company under this Agreement, the prevailing party in any such litigation shall be entitled, in addition to such relief as may be granted,\nto the actual sum expended for attorneys' fees and court costs as determined by the court in such litigation. Should any part or provision of this\nAgreement be deemed invalid or unenforceable, it is the intention of the parties hereto that the remaining portions of the Agreement shall remain in\nfull force and effect. This Agreement shall be binding upon and inure to the benefit of the successors, heirs, assignees, agents and principals of the\nparties hereto. This Agreement shall not be modified or amended except in writing and signed by the parties hereto and specifically referring to this\nAgreement. This Agreement shall be construed under the laws of California, United States of America and any dispute arising out of this Agreement\nshall be adjudicated in a court in the State of California, United States of America.\nIN WITNESS WHEREOF, this Agreement is executed in the City of San Jose, County of Santa Clara, pursuant to the Laws of the State of California\non the date first hereinabove written.\nALCIS HEALTH, INC.\nRecipient:\n560 S. Winchester Blvd., Fifth Floor, San Jose, CA 95120\nSignature\nSignature\nName\nName\nTitle\nTitle\nDate:\n2006\n., 2006	EX-10.4 12 dex104.htm FORM OF STATEMENT OF CONFIDENTIALITY, NON-DISCLOSURE AND NON-\nCOMPETE AGREEMENT\nEXHIBIT 10.4\nFORM OF STATEMENT OF CONFIDENTIALITY, NON-DISCLOSURE\nAND NON-COMPETE AGREEMENT BETWEEN ALCIS-CA AND\nOUR EMPLOYEES, CONSULTANTS AND OTHER THIRD-PARTY CONTRACTORS\nALCiS HEALTH, INC.\nCONFIDENTIAL INFORMATION AND INVENTIONS AGREEMENT\nAs an employee of ALCiS Health, Inc, its subsidiary or its affiliate (together, the “Company”), and in consideration of the compensation now\nand hereafter paid to me, I, the undersigned, agree to the following:\n1. Maintaining Confidential Information\na. Company Information. I agree at all times during the term of my employment and thereafter to hold in strictest confidence, and not to\nuse, except for the benefit of the Company, or to disclose to any person, firm or corporation without written authorization of the Board of Directors\nof the Company, any trade secrets, confidential knowledge, data or other proprietary information relating to products, processes, know-how, designs,\nformulas, developmental or experimental work, computer programs, data bases, other original works of authorship, customer lists, business plans,\nfinancial information or other subject matter pertaining to any business of the Company or any of its clients, consultants or licensees.\nb. Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose any\nproprietary information or trade secrets of my former or concurrent employers or companies, if any, and that I will not bring onto the premises of the\nCompany any unpublished document or any property belonging to my former or concurrent employers or companies, if any, unless consented to in\nwriting by said employers or companies.\nc. Third Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential\nor proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain\nlimited purposes. I agree that I owe the Company and such third parties, during the term of my employment and thereafter, a duty to hold all such\nconfidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation (except as necessary in\ncarrying out my work for the Company consistent with the Company’s agreement with such third party) or to use it for the benefit of anyone other\nthan for the Company or such third party (consistent with the Company’s agreement with such third party) without the express written authorization\nof the Board of Directors of the Company.\n2. Retaining and Assigning Inventions and Original Works\na. Inventions and Original Works Retained by Me. I have attached hereto, as Exhibit A, a list describing all inventions, original works of\nauthorship, developments, improvements, and trade secrets which were made by me prior to my employment with the Company, which belong to\nme, which relate to the Company’s proposed business and products, and which are not assigned to the Company; or, if no such list is attached, I\nrepresent that there are no such inventions.\nb. Inventions and Original Works Assigned to the Company. I agree that I will promptly\nmake full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and will assign to the Company all my\nright, title, and interest in and to any and all inventions, original works of authorship, developments, improvements or trade secrets which I may\nsolely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the period of time I\nam in the employ of the Company. I recognize, however, that Section 2870 of the California Labor Code (as set forth in Exhibit B attached hereto)\nexempts from this provision any invention as to which I can prove the following:\n(i) It was developed entirely on my own time; and\n(ii) No equipment, supplies, facilities or trade secrets of the Company were used in its development; and\n(iii) It either\n(aa) does not relate, at the time the invention was conceived or reduced to practice, to the Company’s business or to the\nCompany’s actual or demonstrably anticipated research and development; or\n(bb) does not result from any work performed by me for the Company.\nI acknowledge that all original works of authorship which are made by me (solely or jointly with others) within the scope of my\nemployment and which are protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act (17 USCA,\nSection 101).\nc. Maintenance of Records. I agree to keep and maintain adequate and current written records of all inventions and original works of\nauthorship made by me (solely or jointly with others) during the term of my employment with the Company. The records will be in the form of\nnotes, sketches, drawings, and any other format that may be specified by the Company. The records will be available to and remain the sole property\nof the Company at all times.\nd. Inventions Assigned to the United States. I agree to assign to the United States government all my right, title, and interest in and to any and\nall inventions, original works of authorship, developments, improvements or trade secrets whenever such full title is required to be in the United\nStates by a contract between the Company and the United States or any of its agencies.\ne. Obtaining Letters Patent and Copyright Registrations. I agree that my obligation to assist the Company to obtain United States or foreign\nletters patent and copyright registrations covering inventions and original works of authorship assigned hereunder to the Company shall continue\nbeyond the termination of my employment, but the Company shall compensate me at a reasonable rate for time actually spent by me at the\nCompany’s request on such assistance. If the Company is unable because of my mental or physical incapacity or for any other reason to secure my\nsignature to apply for or to pursue any application for any United States or foreign letters patent or copyright registrations covering inventions or\noriginal works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the Company and its duly\nauthorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any such applications and to\ndo all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal\nforce and effect as if executed by me. I hereby waive and quitclaim to the Company any and all claims, of any nature whatsoever, which I now or\nmay hereafter have for infringement of any patents or copyrights, resulting from any such application for letters patent or copyright registrations\nassigned hereunder to the Company.\nf. Exception to Assignments. I understand that the provisions of this Agreement requiring assignment to the Company do not apply to any\ninvention which qualifies fully under the provisions of Section 2870 of the California Labor Code, a copy of which is attached hereto as Exhibit B. I\nwill advise the Company promptly in writing of any inventions, original works of authorship, developments, improvements or trade secrets that I\nbelieve meet the criteria in Subparagraphs 2b(i), (ii), and (iii) above; and I will at that time provide to the Company in writing all evidence necessary\nto substantiate that belief. I understand that the Company will keep in confidence and will not disclose to third parties without my consent any\nconfidential information disclosed in writing to the Company relating to inventions that qualify fully under the provisions of Section 2870 of the\nCalifornia Labor Code.\n3. Conflicting Employment. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during\nthe term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.\n4. Returning Company Documents. I agree that, at the time of leaving the employ of the Company, I will deliver to the Company (and will not keep\nin my possession or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence, specifications,\ndrawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items belonging to the\nCompany, its successors or assigns. In the event of the termination of my employment, I agree to sign and deliver the “Termination Certification”\nattached hereto as Exhibit C.\n5. Representations. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Agreement. I represent\nthat my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information acquired by me\nin confidence or in trust prior to my employment by the Company. I have not entered into, and I agree I will not enter into, any oral or written\nagreement in conflict herewith.\n6. General Provisions\na. Governing Law. This Agreement will be governed by the laws of the State of California.\nb. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and me relating to the subject\nmatter herein and merges all prior discussions between us. No modification of or amendment to this Agreement, nor any waiver of any rights under\nthis agreement, will be effective unless in writing signed by the party to be charged. Any subsequent change or changes in my duties, salary or\ncompensation will not affect the validity or scope of this Agreement.\nc. Severability. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will continue in full\nforce and effect.\nd. Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will\nbe for the benefit of the Company, its successors, and its assigns.\nDate:\nName:\nEXHIBIT A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nTitle\nDate\nIdentifying Number\nor Brief Description\nName of Employee:\nEXHIBIT B\nCALIFORNIA LABOR CODE SECTION 2870\nEMPLOYMENT AGREEMENTS; ASSIGNMENT OF RIGHTS\n“(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated\nresearch or development of the employer.\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being\nrequired to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”\nEXHIBIT C\nALCiS HEALTH, INC.\nTERMINATION CERTIFICATION\nThis is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists,\ncorrespondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any\naforementioned items belonging to ALCiS Health, Inc., its subsidiaries, affiliates, successors or assigns (together, the “Company”).\nI further certify that I have complied with all the terms of the Company’s Confidential Information and Inventions Agreement signed by me,\nincluding the reporting of any inventions and original works of authorship (as defined therein), conceived or made by me (solely or jointly with\nothers) covered by that agreement.\nI further agree that, in compliance with the Employee Confidential Information and Inventions Agreement, I will preserve as confidential all trade\nsecrets, confidential knowledge, data or other proprietary information relating to products, processes, know-how, designs, formulas, developmental\nor experimental work, computer programs, data bases, other original works of authorship, customer lists, business plans, financial information or\nother subject matter pertaining to any business of the Company or any of its clients, consultants or licensees.\nDate:\nName:\nNondisclosure and Non-Circumvention Agreement\nTHIS AGREEMENT is made this day of\n, 2006 (the “Effective Date”), by and between ALCIS HEALTH, INC. (“Company”) and\n(“Recipient”).\nThe undersigned intend to engage in discussions concerning the Company’s actual or proposed technology, technology acquisitions (including but\nnot limited to acquisition of patented anti-inflammatory and liposomal delivery system technologies), designs, concepts, innovations, products and/or\nservices of Company and plans, studies or projections with respect thereto, all of which are non-public and unannounced, relating to the Company’s\ncurrent and planned products (hereinafter collectively referred to as the “Company Business”);\nWhereas Recipient desires to obtain certain information for the sole purpose of entering into a business or investment relationship with the Company,\nunderstanding that the Contact Sources are important and valuable to the Company’s current and future business ventures, and whereas Recipient has\nno intent to partner with such Contact Sources in a manner which is not in Company’s best interests;\nWhereas, because such discussions may require disclosure of information considered confidential and proprietary by Company, including the\nidentity of the current owner of the patented anti-inflammatory and liposomal delivery system technologies, and because Company will participate in\nsuch discussions only upon the understanding set forth herein, Recipient agrees with Company that Recipient will maintain the secrecy of such\ninformation as set forth below;\nFor good and valuable consideration, which is hereby acknowledged as received, the parties agree as follows:\n(1) For the purposes of establishing and enforcing this Agreement, the parties do hereby agree upon the following definitions as used herein:\n“Representative Relationship” shall be interpreted to mean any agent, licensee, employment or independent contractor relationship\nentered into for the purpose of providing or receiving funds, license rights, technology, products and/or services from or to the Contact\nSource.\n“Contact Source” shall be interpreted to mean any person, partnership, corporation or other legal entity, including but not limited to those\npersons, partnerships, corporations or other legal entities with whom Company has a current working relationship.\n(2) For each Contact Source disclosed by Company, the term (“Term”) of this Agreement shall commence on the Effective Date and continue until\nthree (3) years after the date Company’s contractual relationship with such Contact Source terminates. The Term for any Contact Source shall extend\nto and continue during any Company/Contact Source contract renewal periods. During the Term, Recipient does hereby agree that neither Recipient\nnor Recipient’s employees, agents, consultants, corporations, divisions, subsidiaries or partnerships or any other person, group or entity associated\nwith Recipient, will make contact with, attempt to deal with or enter into (i) any competitive contract with such Contact Source, (ii) any contract or\nrelationship with such Contact Source which is harmful to Company’s interests or (iii) any Representative Relationship with any Contact Source\nintroduced to Recipient by agents or principals of Company, without Company’s prior written consent to such contract or relationship, which may be\nwithheld in Company’s reasonable discretion.\n(3) Recipient does hereby agree to keep confidential and not to disclose the name, address, telephone, and fax number(s) of any Contact Source\nintroduced to Recipient by agents or principals of Company, as well as any other confidential information that Recipient receives during the Term.\nRecipient does further agree and acknowledge that such information, including the identity and means of contact of any Contact Source introduced\nto Recipient by agents or principals of Company, is the proprietary information, trade secret and property of Company and shall so remain for the\nTerm. Upon termination of discussions or upon the written request of Company, Recipient will return forthwith all written or descriptive matter of\nevery kind including but not limited to models, prototypes, notes, documents, etc. which contain such Confidential Information. Recipient agrees to\nhold each item of Confidential Information received in confidence until three (3) years after the expiration or termination of this Agreement.\n(4) “Confidential Information”, as used herein, shall mean all information, noted as “Confidential” as set forth below, which is disclosed or\notherwise provided by Company, or any representations thereof which relates to or refers to Company information, business strategy, and\ntechnology. Confidential Information shall not include such information:\na.\nwhich was in the public domain prior to any such disclosure by Company;\nb.\nwhich, after disclosure by Company, comes into the public domain through no fault of the Recipient;\nc.\nwhich is disclosed to Recipient by a third party lawfully and with a legitimate right to disclose; or\nd.\nwhich was in the legitimate possession of Recipient prior to such disclosure as evidenced by Recipient’s written records.\nRecipient will hold all Confidential Information in trust and confidence; and will not at any time, without the prior written consent of Company,\ndisclose Confidential Information to any person other than an employee of Recipient who is bound to maintain the confidentiality of such\nConfidential Information and who has an actual need to know such Confidential Information in order to advance the purposes of this Agreement and\nthe discussions pursuant hereto; and, will not use or employ any Confidential Information in connection with any business or commercial activity\nwhich is separate from or does not involve Company. Notwithstanding the definition of Company Information, and notwithstanding the public filing\nstatus of the anti-inflammatory and liposomal delivery system patents, Recipient will not discuss the anti-inflammatory and liposomal delivery\nsystem patents or their availability for acquisition with any party other than the Company for a period of 3 years from execution of this agreement.\n(5) In the event that any litigation is commenced between the Recipient and Company relative to this Agreement or the rights and duties of the\nRecipient or Company under this Agreement, the prevailing party in any such litigation shall be entitled, in addition to such relief as may be granted,\nto the actual sum expended for attorneys’ fees and court costs as determined by the court in such litigation. Should any part or provision of this\nAgreement be deemed invalid or unenforceable, it is the intention of the parties hereto that the remaining portions of the Agreement shall remain in\nfull force and effect. This Agreement shall be binding upon and inure to the benefit of the successors, heirs, assignees, agents and principals of the\nparties hereto. This Agreement shall not be modified or amended except in writing and signed by the parties hereto and specifically referring to this\nAgreement. This Agreement shall be construed under the laws of California, United States of America and any dispute arising out of this Agreement\nshall be adjudicated in a court in the State of California, United States of America.\nIN WITNESS WHEREOF, this Agreement is executed in the City of San Jose, County of Santa Clara, pursuant to the Laws of the State of California\non the date first hereinabove written.\nALCIS HEALTH, INC.\nRecipient:\n560 S. Winchester Blvd., Fifth Floor, San Jose, CA 95120\nSignature _____________________________________\nSignature ____________________________________\nName ________________________________________\nName _______________________________________\nTitle _________________________________________\nTitle ________________________________________\nDate:\n, 2006\n, 2006
+80b10762496b1fbcf86f729528d30fed.pdf	effective_date jurisdiction party term	EX-10 .3 7 ndaprecision.htm\nNondisclosure Agreement\nThis agreement (“Agreement”) is entered into and effective as of 6th day of February, 2007, between\nPrecision Metal Manufacturing, Inc (a Colorado Corporation) located at 12555 West 52nd Avenue, Arvada,\nColorado 80002 and Back 2 Health, Ltd. located at 5373 North Union Bvld., Colorado Springs, Colorado\n80918 (hereinafter collectively referred to as “the Parties”).\nWHEREAS, the Parties contemplate entering into a business relationship regarding materials production: and\nWHEREAS, Back 2 Health, Ltd. needs to disclose certain information to Precision Metal Manufacturing, Inc.\nregarding the potential business relationship:\nNOW THEREFORE, in consideration of the disclosure of Proprietary Information (as defined herein) to\nPrecision Metal Manufacturing, Inc. the Parties agree as follows:\n1.\nDefinition:\n“Information” is defined as communications or data including, but not limited to, business\ninformation, marketing plans, technical or financial information, customer lists or proposals,\ntrademark filings, patent applications, sketches, models, samples, drawings, specifications, whether\nconveyed in oral, written, graphic, or electromagnetic form or otherwise.\n“Party” is defined as either entity executing this Agreement and any subsidiary, division, or parent\ncompany of such entity.\n“Proprietary Information” is defined as that information owned or possessed by Back 2 Health Ltd.\nthat Back 2 Health, Ltd. desires to protect as confidential against unrestricted disclosure or improper\ncompetitive use, and that is designated as such in the manner provided by this Agreement.\n2.\nAll information that is disclosed by Back 2 Health, Ltd. (“Disclosing Party”) to Precision Metal\nManufacturing, Inc. (“Receiving Party”) and that is to be protected hereunder by the Receiving Party\nas Proprietary Information:\n(a) in writing or other tangible form, shall be conspicuously labeled as “proprietary”, “confidential”,\nor with words of similar importance at the time of delivery; and\n(b) if oral, shall concern only topics and scope agreed in advance, in writing, and shall be identified as\n“proprietary” or “confidential” prior to disclosure, and after disclosure shall be summarized in writing\nor other tangible form promptly, but in no event later than twenty (20) business days thereafter, and\nthe summary shall be delivered to the Receiving Party consistent with Subparagraph 2(a) hereof.\n3.\nProprietary Information of the Disclosing Party shall remain the property of the Disclosing Party.\nProprietary Information of the Disclosing Party shall be treated and safeguarded hereunder by the\nReceiving Party for a period of five (5) years from the date of disclosure. The Receiving Party\nwarrants that it applies reasonable safeguards against the unauthorized disclosure of Proprietary\nInformation and that it will protect such Proprietary Information at least as securely as it protects it\nown Proprietary Information.\n4.\nThe Receiving Party agrees that (i) the documents provided to the Receiving Party hereunder\ncontaining Proprietary Information of the Disclosing Party shall be used by the Receiving Party solely\nfor the purpose of evaluating its interest in the business arrangements described or performing a future\nagreement between the parties; (ii) it will not use such documents disclosed hereunder for any other\npurpose; and (iii) it will not distribute, disclose, or disseminate Proprietary Information to anyone\nexcept its employees with a need to know who are involved in the consideration or performance of the\nbusiness arrangements described herein.\n5.\nThis Agreement shall not apply to Information that:\n(a) is in or enters the public domain, through no fault of the Receiving Party; or\n(b) is or has been disclosed by the Disclosing Party to the other Party or the third party without\nrestriction; or\n(c) is already in the possession of the Receiving Party, without restriction and prior to disclosure\nof the information hereunder; or\n(d) is or has been lawfully disclosed by a third party to the Receiving Party without an obligation\nof confidentiality; or\n(e) is developed by the Receiving Party independently of any breach of this Agreement; or\n(f) the applicable period of confidentiality pursuant to Paragraph 3 has ended.\nEach Party may disclose any Proprietary Information to the extent that such Party has been advised by\ncounsel that such disclosure is necessary to comply with the laws or regulations, provided that each\nParty shall give the other Party reasonable advance notice of such proposed disclosure, shall use its\nbest efforts to assist Disclosing Party to secure confidential treatment of any such Proprietary\nInformation and shall advise the other Party in writing of the manner of the disclosure.\n6.\nThis Agreement shall terminate five (5) years from the date first written above, or upon ten (10) days\nwritten notice by either Party except the obligations of confidentiality pursuant to Paragraph 3, and the\nterms of Paragraph 4, shall continue for the period specified in Paragraph 3.\n7.\nNeither this Agreement nor the disclosure or receipt of Information shall constitute or imply a\ncommitment by either Party with respect to present or future business arrangements or other subject\nmatter not expressly set forth herein.\n8.\nThe Receiving Party shall have, or shall enter into, agreements with its parent, divisions, subsidiary\ncompanies, and consultants that will safeguard the Proprietary Information disclosed hereunder\nconsistent with the terms of this Agreement. With respect to employees, the Receiving Party shall\nadvise all employees who will have access to Proprietary Information as to their obligations contained\nherein.\n9.\nExcept as expressly provided herein, no license or right is granted by the Disclosing Party to the\nReceiving Party under any patent, patent application, trademark, copyright, software, or trade secret.\n10.\nAny amendment to this Agreement must be in writing and signed by authorized officers of each Party.\nNo failure or delay in exercising any right under this Agreement shall operate as a waiver thereof.\n11.\nAt the Disclosing Party’s request, all Proprietary Information of the Disclosing Party in tangible form\nthat is in the possession of the Receiving Party shall be returned to the Disclosing Party or destroyed.\n12.\nEach Party agrees that it will not disclose the subject matter or terms of this Agreement or the\ndiscussions between the Parties without the written consent of the other Party.\n13.\nThis Agreement shall be governed by the laws of the State of Colorado.\n14.\nIf any provision of this Agreement shall be deemed invalid, unenforceable, or illegal, or if the period\nduring which this Agreement is to remain effective is found to exceed the legally permissible period,\nthen notwithstanding such invalidity, unenforceability, or illegality the remainder of this Agreement\nshall continue in full force and effect during the maximum period legally permissible.\n15.\nA copy of this document may be executed by each party, separately, and when each party has executed\na copy thereof, such copies taken together shall be deemed to be a full and complete agreement\nbetween the Parties. Facsimile signatures shall be deemed the equivalent of original signatures.\n16.\nIf a dispute relates to this Agreement, or its breach, and the parties have not been successful in\nresolving such dispute through negotiation, the parties agree to attempt to resolve the dispute through\nmediation by submitting the dispute to a sole mediator selected by the parties or, at any time at the\noption of a party, to arbitration by the American Arbitration Association (“AAA”). Each party shall\nbear its own expenses and an equal share of the expenses of the mediator or arbitrator and the fees of\nthe AAA. All defenses based on passage of time shall be suspended pending the termination of the\nmediation or arbitration. Nothing in this clauses shall be construed to preclude any party from seeking\ninjunctive relief in order to protect its rights pending mediation or arbitration.\n17.\nThe Parties have read, agree to, and understand the above conditions.\nBack 2 Health, Ltd.\nPRECISION METAL MANUFACTURING, INC.\nCompany Name\n/s/John B. Quam\n/s/ Brian J. Cirbo\nCompany Representative Signature\nCompany Representative Signature\nJohn B. Quam\nBrian J. Cirbo\nPrint Company Representative Name\nPrint Company Representative Name\nPresident\nVice President\nCompany Representative Title\nCompany Representative Title\n02/06/07\n02/06/07\nDate\nDate	EX-10.3 7 ndaprecision.htm\nNondisclosure Agreement\nThis agreement (“Agreement”) is entered into and effective as of 61 day of February, 2007, between\nPrecision Metal Manufacturing, Inc (a Colorado Corporation) located at 12555 West 527 Avenue, Arvada,\nColorado 80002 and Back 2 Health, Ltd. located at 5373 North Union Bvld., Colorado Springs, Colorado\n80918 (hereinafter collectively referred to as “the Parties”).\nWHEREAS, the Parties contemplate entering into a business relationship regarding materials production: and\nWHEREAS, Back 2 Health, Ltd. needs to disclose certain information to Precision Metal Manufacturing, Inc.\nregarding the potential business relationship:\nNOW THEREFORE, in consideration of the disclosure of Proprietary Information (as defined herein) to\nPrecision Metal Manufacturing, Inc. the Parties agree as follows:\n1. Definition:\n“Information” is defined as communications or data including, but not limited to, business\ninformation, marketing plans, technical or financial information, customer lists or proposals,\ntrademark filings, patent applications, sketches, models, samples, drawings, specifications, whether\nconveyed in oral, written, graphic, or electromagnetic form or otherwise.\n“Party” is defined as either entity executing this Agreement and any subsidiary, division, or parent\ncompany of such entity.\n“Proprietary Information” is defined as that information owned or possessed by Back 2 Health Ltd.\nthat Back 2 Health, Ltd. desires to protect as confidential against unrestricted disclosure or improper\ncompetitive use, and that is designated as such in the manner provided by this Agreement.\n2. All information that is disclosed by Back 2 Health, Ltd. (“Disclosing Party”) to Precision Metal\nManufacturing, Inc. (“Receiving Party”) and that is to be protected hereunder by the Receiving Party\nas Proprietary Information:\n(a) in writing or other tangible form, shall be conspicuously labeled as “proprietary”, “confidential”,\nor with words of similar importance at the time of delivery; and\n(b) if oral, shall concern only topics and scope agreed in advance, in writing, and shall be identified as\n“proprietary” or “confidential” prior to disclosure, and after disclosure shall be summarized in writing\nor other tangible form promptly, but in no event later than twenty (20) business days thereafter, and\nthe summary shall be delivered to the Receiving Party consistent with Subparagraph 2(a) hereof.\n3. Proprietary Information of the Disclosing Party shall remain the property of the Disclosing Party.\nProprietary Information of the Disclosing Party shall be treated and safeguarded hereunder by the\nReceiving Party for a period of five (5) years from the date of disclosure. The Receiving Party\nwarrants that it applies reasonable safeguards against the unauthorized disclosure of Proprietary\nInformation and that it will protect such Proprietary Information at least as securely as it protects it\nown Proprietary Information.\n4. The Receiving Party agrees that (i) the documents provided to the Receiving Party hereunder\ncontaining Proprietary Information of the Disclosing Party shall be used by the Receiving Party solely\nfor the purpose of evaluating its interest in the business arrangements described or performing a future\n]\n10. 11. 12. agreement between the parties; (ii) it will not use such documents disclosed hereunder for any other\npurpose; and (iii) it will not distribute, disclose, or disseminate Proprietary Information to anyone\nexcept its employees with a need to know who are involved in the consideration or performance of the\nbusiness arrangements described herein.\nThis Agreement shall not apply to Information that:\n(a) isin or enters the public domain, through no fault of the Receiving Party; or\n(b) is or has been disclosed by the Disclosing Party to the other Party or the third party without\nrestriction; or\n(c) is already in the possession of the Receiving Party, without restriction and prior to disclosure\nof the information hereunder; or\n(d) is or has been lawfully disclosed by a third party to the Receiving Party without an obligation\nof confidentiality; or\n(e) is developed by the Receiving Party independently of any breach of this Agreement; or\n(f) the applicable period of confidentiality pursuant to Paragraph 3 has ended.\nEach Party may disclose any Proprietary Information to the extent that such Party has been advised by\ncounsel that such disclosure is necessary to comply with the laws or regulations, provided that each\nParty shall give the other Party reasonable advance notice of such proposed disclosure, shall use its\nbest efforts to assist Disclosing Party to secure confidential treatment of any such Proprietary\nInformation and shall advise the other Party in writing of the manner of the disclosure.\nThis Agreement shall terminate five (5) years from the date first written above, or upon ten (10) days\nwritten notice by either Party except the obligations of confidentiality pursuant to Paragraph 3, and the\nterms of Paragraph 4, shall continue for the period specified in Paragraph 3.\nNeither this Agreement nor the disclosure or receipt of Information shall constitute or imply a\ncommitment by either Party with respect to present or future business arrangements or other subject\nmatter not expressly set forth herein.\nThe Receiving Party shall have, or shall enter into, agreements with its parent, divisions, subsidiary\ncompanies, and consultants that will safeguard the Proprietary Information disclosed hereunder\nconsistent with the terms of this Agreement. With respect to employees, the Receiving Party shall\nadvise all employees who will have access to Proprietary Information as to their obligations contained\nherein.\nExcept as expressly provided herein, no license or right is granted by the Disclosing Party to the\nReceiving Party under any patent, patent application, trademark, copyright, software, or trade secret.\nAny amendment to this Agreement must be in writing and signed by authorized officers of each Party.\nNo failure or delay in exercising any right under this Agreement shall operate as a waiver thereof.\nAt the Disclosing Party’s request, all Proprietary Information of the Disclosing Party in tangible form\nthat is in the possession of the Receiving Party shall be returned to the Disclosing Party or destroyed.\nEach Party agrees that it will not disclose the subject matter or terms of this Agreement or the\ndiscussions between the Parties without the written consent of the other Party.\n]\f \n13. This Agreement shall be governed by the laws of the State of Colorado.\n14. If any provision of this Agreement shall be deemed invalid, unenforceable, or illegal, or if the period\nduring which this Agreement is to remain effective is found to exceed the legally permissible period,\nthen notwithstanding such invalidity, unenforceability, or illegality the remainder of this Agreement\nshall continue in full force and effect during the maximum period legally permissible.\n15. A copy of this document may be executed by each party, separately, and when each party has executed\na copy thereof, such copies taken together shall be deemed to be a full and complete agreement\nbetween the Parties. Facsimile signatures shall be deemed the equivalent of original signatures.\n16. If a dispute relates to this Agreement, or its breach, and the parties have not been successful in\nresolving such dispute through negotiation, the parties agree to attempt to resolve the dispute through\nmediation by submitting the dispute to a sole mediator selected by the parties or, at any time at the\noption of a party, to arbitration by the American Arbitration Association (“AAA”). Each party shall\nbear its own expenses and an equal share of the expenses of the mediator or arbitrator and the fees of\nthe AAA. All defenses based on passage of time shall be suspended pending the termination of the\nmediation or arbitration. Nothing in this clauses shall be construed to preclude any party from seeking\ninjunctive relief in order to protect its rights pending mediation or arbitration.\n17. The Parties have read, agree to, and understand the above conditions.\nBack 2 Health, Ltd. PRECISION METAL MANUFACTURING, INC.\nCompany Name\n/s/John B. Quam /s/ Brian J. Cirbo\nCompany Representative Signature Company Representative Signature\nJohn B. Quam Brian J. Cirbo\nPrint Company Representative Name Print Company Representative Name\nPresident Vice President\nCompany Representative Title Company Representative Title\n02/06/07 02/06/07\nDate Date	EX-10.3 ndaprecision.htm\nNondisclosure Agreement\nThis agreement ("Agreement") is entered into and effective as of 6th day of February, 2007, between\nPrecision Metal Manufacturing, Inc (a Colorado Corporation) located at 12555 West 52nd Avenue, Arvada,\nColorado 80002 and Back 2 Health, Ltd. located at 5373 North Union Bvld., Colorado Springs, Colorado\n80918 (hereinafter collectively referred to as "the Parties").\nWHEREAS, the Parties contemplate entering into a business relationship regarding materials production: and\nWHEREAS, Back 2 Health, Ltd. needs to disclose certain information to Precision Metal Manufacturing, Inc.\nregarding the potential business relationship:\nNOW THEREFORE, in consideration of the disclosure of Proprietary Information (as defined herein) to\nPrecision Metal Manufacturing, Inc. the Parties agree as follows:\n1.\nDefinition:\n"Information" is defined as communications or data including, but not limited to, business\ninformation, marketing plans, technical or financial information, customer lists or proposals,\ntrademark filings, patent applications, sketches, models, samples, drawings, specifications, whether\nconveyed in oral, written, graphic, or electromagnetic form or otherwise.\n"Party" is defined as either entity executing this Agreement and any subsidiary, division, or parent\ncompany of such entity.\n"Proprietary Information" is defined as that information owned or possessed by Back 2 Health Ltd.\nthat Back 2 Health, Ltd. desires to protect as confidential against unrestricted disclosure or improper\ncompetitive use, and that is designated as such in the manner provided by this Agreement.\n2.\nAll information that is disclosed by Back 2 Health, Ltd. ("Disclosing Party") to Precision Metal\nManufacturing, Inc. ("Receiving Party") and that is to be protected hereunder by the Receiving Party\nas Proprietary Information:\n(a) in writing or other tangible form, shall be conspicuously labeled as "proprietary", "confidential",\nor with words of similar importance at the time of delivery; and\n(b) if oral, shall concern only topics and scope agreed in advance, in writing, and shall be identified as\n"proprietary" or "confidential" prior to disclosure, and after disclosure shall be summarized in writing\nor other tangible form promptly, but in no event later than twenty (20) business days thereafter, and\nthe summary shall be delivered to the Receiving Party consistent with Subparagraph 2(a) hereof.\n3.\nProprietary Information of the Disclosing Party shall remain the property of the Disclosing Party.\nProprietary Information of the Disclosing Party shall be treated and safeguarded hereunder by the\nReceiving Party for a period of five (5) years from the date of disclosure. The Receiving Party\nwarrants that it applies reasonable safeguards against the unauthorized disclosure of Proprietary\nInformation and that it will protect such Proprietary Information at least as securely as it protects it\nown Proprietary Information.\n4.\nThe Receiving Party agrees that (i) the documents provided to the Receiving Party hereunder\ncontaining Proprietary Information of the Disclosing Party shall be used by the Receiving Party solely\nfor the purpose of evaluating its interest in the business arrangements described or performing a future\nagreement between the parties; (ii) it will not use such documents disclosed hereunder for any other\npurpose; and (iii) it will not distribute, disclose, or disseminate Proprietary Information to anyone\nexcept its employees with a need to know who are involved in the consideration or performance of the\nbusiness arrangements described herein.\n5.\nThis Agreement shall not apply to Information that:\n(a) is in or enters the public domain, through no fault of the Receiving Party; or\n(b) is or has been disclosed by the Disclosing Party to the other Party or the third party without\nrestriction; or\n(c) is already in the possession of the Receiving Party, without restriction and prior to disclosure\nof the information hereunder; or\n(d) is or has been lawfully disclosed by a third party to the Receiving Party without an obligation\nof confidentiality; or\n(e) is developed by the Receiving Party independently of any breach of this Agreement; or\n(f) the applicable period of confidentiality pursuant to Paragraph 3 has ended.\nEach Party may disclose any Proprietary Information to the extent that such Party has been advised by\ncounsel that such disclosure is necessary to comply with the laws or regulations, provided that each\nParty shall give the other Party reasonable advance notice of such proposed disclosure, shall use its\nbest efforts to assist Disclosing Party to secure confidential treatment of any such Proprietary\nInformation and shall advise the other Party in writing of the manner of the disclosure.\n6.\nThis Agreement shall terminate five (5) years from the date first written above, or upon ten (10) days\nwritten notice by either Party except the obligations of confidentiality pursuant to Paragraph 3, and the\nterms of Paragraph 4, shall continue for the period specified in Paragraph 3.\n7.\nNeither this Agreement nor the disclosure or receipt of Information shall constitute or imply a\ncommitment by either Party with respect to present or future business arrangements or other subject\nmatter not expressly set forth herein.\n8.\nThe Receiving Party shall have, or shall enter into, agreements with its parent, divisions, subsidiary\ncompanies, and consultants that will safeguard the Proprietary Information disclosed hereunder\nconsistent with the terms of this Agreement. With respect to employees, the Receiving Party shall\nadvise all employees who will have access to Proprietary Information as to their obligations contained\nherein.\n9.\nExcept as expressly provided herein, no license or right is granted by the Disclosing Party to the\nReceiving Party under any patent, patent application, trademark, copyright, software, or trade secret.\n10. Any amendment to this Agreement must be in writing and signed by authorized officers of each Party.\nNo failure or delay in exercising any right under this Agreement shall operate as a waiver thereof.\n11. At the Disclosing Party's request, all Proprietary Information of the Disclosing Party in tangible form\nthat is in the possession of the Receiving Party shall be returned to the Disclosing Party or destroyed.\n12.\nEach Party agrees that it will not disclose the subject matter or terms of this Agreement or the\ndiscussions between the Parties without the written consent of the other Party.\n13.\nThis Agreement shall be governed by the laws of the State of Colorado.\n14.\nIf any provision of this Agreement shall be deemed invalid, unenforceable, or illegal, or if the period\nduring which this Agreement is to remain effective is found to exceed the legally permissible period,\nthen notwithstanding such invalidity, unenforceability, or illegality the remainder of this Agreement\nshall continue in full force and effect during the maximum period legally permissible.\n15.\nA copy of this document may be executed by each party, separately, and when each party has executed\na copy thereof, such copies taken together shall be deemed to be a full and complete agreement\nbetween the Parties. Facsimile signatures shall be deemed the equivalent of original signatures.\n16.\nIf a dispute relates to this Agreement, or its breach, and the parties have not been successful in\nresolving such dispute through negotiation, the parties agree to attempt to resolve the dispute through\nmediation by submitting the dispute to a sole mediator selected by the parties or, at any time at the\noption of a party, to arbitration by the American Arbitration Association ("AAA"). Each party shall\nbear its own expenses and an equal share of the expenses of the mediator or arbitrator and the fees of\nthe AAA. All defenses based on passage of time shall be suspended pending the termination of the\nmediation or arbitration. Nothing in this clauses shall be construed to preclude any party from seeking\ninjunctive relief in order to protect its rights pending mediation or arbitration.\n17.\nThe Parties have read, agree to, and understand the above conditions.\nBack 2 Health, Ltd.\nPRECISION METAL MANUFACTURING, INC.\nCompany Name\n/s/John B. Quam\n/s/ Brian J. Cirbo\nCompany Representative Signature\nCompany Representative Signature\nJohn B. Quam\nBrian J. Cirbo\nPrint Company Representative Name\nPrint Company Representative Name\nPresident\nVice President\nCompany Representative Title\nCompany Representative Title\n02/06/07\n02/06/07\nDate\nDate	EX-10 .3 7 ndaprecision.htm\nNondisclosure Agreement\nThis agreement (“Agreement”) is entered into and effective as of 6th day of February, 2007, between\nPrecision Metal Manufacturing, Inc (a Colorado Corporation) located at 12555 West 52nd Avenue, Arvada,\nColorado 80002 and Back 2 Health, Ltd. located at 5373 North Union Bvld., Colorado Springs, Colorado\n80918 (hereinafter collectively referred to as “the Parties”).\nWHEREAS, the Parties contemplate entering into a business relationship regarding materials production: and\nWHEREAS, Back 2 Health, Ltd. needs to disclose certain information to Precision Metal Manufacturing, Inc.\nregarding the potential business relationship:\nNOW THEREFORE, in consideration of the disclosure of Proprietary Information (as defined herein) to\nPrecision Metal Manufacturing, Inc. the Parties agree as follows:\n1.\nDefinition:\n“Information” is defined as communications or data including, but not limited to, business\ninformation, marketing plans, technical or financial information, customer lists or proposals,\ntrademark filings, patent applications, sketches, models, samples, drawings, specifications, whether\nconveyed in oral, written, graphic, or electromagnetic form or otherwise.\n“Party” is defined as either entity executing this Agreement and any subsidiary, division, or parent\ncompany of such entity.\n“Proprietary Information” is defined as that information owned or possessed by Back 2 Health Ltd.\nthat Back 2 Health, Ltd. desires to protect as confidential against unrestricted disclosure or improper\ncompetitive use, and that is designated as such in the manner provided by this Agreement.\n2.\nAll information that is disclosed by Back 2 Health, Ltd. (“Disclosing Party”) to Precision Metal\nManufacturing, Inc. (“Receiving Party”) and that is to be protected hereunder by the Receiving Party\nas Proprietary Information:\n(a) in writing or other tangible form, shall be conspicuously labeled as “proprietary”, “confidential”,\nor with words of similar importance at the time of delivery; and\n(b) if oral, shall concern only topics and scope agreed in advance, in writing, and shall be identified as\n“proprietary” or “confidential” prior to disclosure, and after disclosure shall be summarized in writing\nor other tangible form promptly, but in no event later than twenty (20) business days thereafter, and\nthe summary shall be delivered to the Receiving Party consistent with Subparagraph 2(a) hereof.\n3.\nProprietary Information of the Disclosing Party shall remain the property of the Disclosing Party.\nProprietary Information of the Disclosing Party shall be treated and safeguarded hereunder by the\nReceiving Party for a period of five (5) years from the date of disclosure. The Receiving Party\nwarrants that it applies reasonable safeguards against the unauthorized disclosure of Proprietary\nInformation and that it will protect such Proprietary Information at least as securely as it protects it\nown Proprietary Information.\n4.\nThe Receiving Party agrees that (i) the documents provided to the Receiving Party hereunder\ncontaining Proprietary Information of the Disclosing Party shall be used by the Receiving Party solely\nfor the purpose of evaluating its interest in the business arrangements described or performing a future\nagreement between the parties; (ii) it will not use such documents disclosed hereunder for any other\npurpose; and (iii) it will not distribute, disclose, or disseminate Proprietary Information to anyone\nexcept its employees with a need to know who are involved in the consideration or performance of the\nbusiness arrangements described herein.\n5.\nThis Agreement shall not apply to Information that:\n(a) is in or enters the public domain, through no fault of the Receiving Party; or\n(b) is or has been disclosed by the Disclosing Party to the other Party or the third party without\nrestriction; or\n(c) is already in the possession of the Receiving Party, without restriction and prior to disclosure\nof the information hereunder; or\n(d) is or has been lawfully disclosed by a third party to the Receiving Party without an obligation\nof confidentiality; or\n(e) is developed by the Receiving Party independently of any breach of this Agreement; or\n(f) the applicable period of confidentiality pursuant to Paragraph 3 has ended.\nEach Party may disclose any Proprietary Information to the extent that such Party has been advised by\ncounsel that such disclosure is necessary to comply with the laws or regulations, provided that each\nParty shall give the other Party reasonable advance notice of such proposed disclosure, shall use its\nbest efforts to assist Disclosing Party to secure confidential treatment of any such Proprietary\nInformation and shall advise the other Party in writing of the manner of the disclosure.\n6.\nThis Agreement shall terminate five (5) years from the date first written above, or upon ten (10) days\nwritten notice by either Party except the obligations of confidentiality pursuant to Paragraph 3, and the\nterms of Paragraph 4, shall continue for the period specified in Paragraph 3.\n7.\nNeither this Agreement nor the disclosure or receipt of Information shall constitute or imply a\ncommitment by either Party with respect to present or future business arrangements or other subject\nmatter not expressly set forth herein.\n8.\nThe Receiving Party shall have, or shall enter into, agreements with its parent, divisions, subsidiary\ncompanies, and consultants that will safeguard the Proprietary Information disclosed hereunder\nconsistent with the terms of this Agreement. With respect to employees, the Receiving Party shall\nadvise all employees who will have access to Proprietary Information as to their obligations contained\nherein.\n9.\nExcept as expressly provided herein, no license or right is granted by the Disclosing Party to the\nReceiving Party under any patent, patent application, trademark, copyright, software, or trade secret.\n10.\nAny amendment to this Agreement must be in writing and signed by authorized officers of each Party.\nNo failure or delay in exercising any right under this Agreement shall operate as a waiver thereof.\n11.\nAt the Disclosing Party’s request, all Proprietary Information of the Disclosing Party in tangible form\nthat is in the possession of the Receiving Party shall be returned to the Disclosing Party or destroyed.\n12.\nEach Party agrees that it will not disclose the subject matter or terms of this Agreement or the\ndiscussions between the Parties without the written consent of the other Party.\n13.\nThis Agreement shall be governed by the laws of the State of Colorado.\n14.\nIf any provision of this Agreement shall be deemed invalid, unenforceable, or illegal, or if the period\nduring which this Agreement is to remain effective is found to exceed the legally permissible period,\nthen notwithstanding such invalidity, unenforceability, or illegality the remainder of this Agreement\nshall continue in full force and effect during the maximum period legally permissible.\n15.\nA copy of this document may be executed by each party, separately, and when each party has executed\na copy thereof, such copies taken together shall be deemed to be a full and complete agreement\nbetween the Parties. Facsimile signatures shall be deemed the equivalent of original signatures.\n16.\nIf a dispute relates to this Agreement, or its breach, and the parties have not been successful in\nresolving such dispute through negotiation, the parties agree to attempt to resolve the dispute through\nmediation by submitting the dispute to a sole mediator selected by the parties or, at any time at the\noption of a party, to arbitration by the American Arbitration Association (“AAA”). Each party shall\nbear its own expenses and an equal share of the expenses of the mediator or arbitrator and the fees of\nthe AAA. All defenses based on passage of time shall be suspended pending the termination of the\nmediation or arbitration. Nothing in this clauses shall be construed to preclude any party from seeking\ninjunctive relief in order to protect its rights pending mediation or arbitration.\n17.\nThe Parties have read, agree to, and understand the above conditions.\nBack 2 Health, Ltd.\nPRECISION METAL MANUFACTURING, INC.\nCompany Name\n/s/John B. Quam\n/s/ Brian J. Cirbo\nCompany Representative Signature\nCompany Representative Signature\nJohn B. Quam\nBrian J. Cirbo\nPrint Company Representative Name\nPrint Company Representative Name\nPresident\nVice President\nCompany Representative Title\nCompany Representative Title\n02/06/07\n02/06/07\nDate\nDate
+80e3a1f3abe306d4feb3b134c707bd07.pdf	effective_date jurisdiction party term	EX-99.(E)(2) 3 dex99e2.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(2)\nOctober 12, 2005\nKoch Industries, Inc.\n4111 E. 37\nth Street North\nWichita, Kansas 67220\nAttention: Steve Feilmeier\nRe: Confidentiality Agreement\nDear Steve:\nKoch Industries, Inc. (“Koch” or “you”) now or in the future will be reviewing certain information provided to it by Georgia-Pacific\nCorporation (“GP”) or its affiliates (“Provider”) to assist Koch in evaluating making a possible purchase of certain stock or assets of GP (the\n“Project”). In order that Koch may determine the extent of its interest, certain oral and written information regarding the Project will be provided to\nKoch which is proprietary and confidential information of Provider.\nAs used herein, the term “Person” includes, without limitation, any corporation, company, entity, trust, group, partnership, or individual. The\nterm “Representative” means any Person acting on behalf of Provider or Koch, as the case may be, including without limitation, Koch’s (or\nProvider’s, as the case may be) directors, officers, partners, employees, agents, representatives, financial advisors, attorneys, accountants, and\nconsultants. The term “Information” means any and all oral and written information, including information in documentary, handwritten, electronic\nform, or any other form, that is (i) furnished by Provider to you or any of your Representatives in connection with your evaluation of the Project or\nfurnished to us in regard to the purchase by Koch from Provider of the two pulp and paper mills in May 2004, or (ii) prepared by you or your\nRepresentatives and containing, in whole or in part based on, any information described in clause (i) above.\nIn consideration of your being furnished with the Information by Provider, you agree that:\n1. Subject to Paragraph 6 below, the Information will be kept confidential and will not, without the prior written consent of Provider, be\ndisclosed by you or your Representatives, in whole or in part. Moreover, you agree to disclose to your Representatives that you are evaluating the\nProject and to transmit Information to your Representatives, in both cases, only if and to the extent that such Representatives need to know the\nInformation for the purpose of evaluating the Project and are informed by you of\nthe confidential nature of the Information and agree (in writing in the case of third party Representatives) to be bound by the terms of this\nAgreement.\n2. Except as otherwise permitted herein, without the prior written consent of Provider, you and your Representatives will not disclose to any\nother Person your participation in evaluating the Project, including that Information has been made available or the status of such process, except as\nrequired by law, regulation or legal process and then only with prior written notice to Provider.\n3. If no transaction is consummated between us regarding the Project, upon our request, you will either destroy the Information (including\nall copies thereof) or, at your option, return the Information immediately to Provider, without retaining any copies or extracts thereof; provided.\n4. The term “Information” does not include information which (i) is or becomes available to the public other than as a result of a disclosure\nby you or anyone to whom you or any of your Representatives transmit any information, (ii) is or becomes known or available to you on a basis not\nin contravention of applicable law from a source (other than Provider or one of its Representatives) which you reasonably believe is not prohibited\nfrom transmitting such information to you by any contractual, legal or fiduciary obligation to Provider, (iii) was in your possession prior to the time\nit was acquired hereunder, or (iv) was developed by or for you without reference to the Information.\n5. You (i) acknowledge that neither Provider nor any of its Representatives makes any representation or warranty (express or implied) as to\nthe accuracy or completeness of the Information and (ii) agree, to the full extent permitted by law, that neither Provider nor any of its\nRepresentatives shall have any liability whatsoever to you or to any of your Representatives on any basis (including, without limitation, in contract,\ntort, under federal or state securities laws, or otherwise) as a result of your participation in the evaluation of the Project and the use of the\nInformation by you or your Representatives. This Agreement sets forth all of your obligations with respect to Information except as may be\notherwise provided in a subsequent written agreement between you and us. You agree that only those representations or warranties which are made\nin a final definitive agreement regarding the Project, when, as and if executed and delivered by the parties, and subject to such limitations and\nrestrictions as may be specified therein, shall have any legal effect.\n6. Should any person seek to legally compel you or anyone to whom you transmit the Information pursuant to this Agreement (by oral\nquestions, interrogatories, requests for Information or documents, subpoena, civil investigative demands or otherwise) to disclose any of the\nInformation, you will provide (if not otherwise\n2\nprohibited from doing so) Provider with prompt written notice so that Provider may seek, at Provider’s expense, a protective order or other\nappropriate remedy (including by participating in any proceeding to which Koch is a party, which at Provider’s request you will use all reasonable\nefforts to permit Provider to do) and/or waive compliance with the provisions of this Agreement. You agree to provide reasonable cooperation to\nProvider, including making available witnesses to the extent they are under your control, in connection with its efforts pursuant to this paragraph. If,\nafter complying with the preceding sentence, you are legally compelled to disclose any such Information, you may furnish that portion (but only that\nportion) of the Information which is legally required.\n7. It is understood and agreed that no failure or delay by Provider or you in exercising any right, power or privilege under this Agreement\nshall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege\nhereunder.\n8. This Agreement shall inure to the benefit of and be binding upon Provider and you and your respective successors and assigns, including\nany successor to Provider or you or to substantially all of its or your assets or business, by merger, consolidation, purchase of assets, purchase of\nstock or otherwise.\n9. You agree that Provider may be irreparably injured by a breach of this Agreement by you or your Representatives and that Provider would\nbe entitled to seek equitable relief, including injunctive relief and specific performance, in the event of any breach of the provisions of this\nAgreement. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by you or your Representatives, but shall\nbe in addition to all other remedies available at law or equity.\n10. You agree that unless and until a final definitive agreement providing for a transaction has been executed and delivered by the Provider\nand you, none of the Provider, any of its shareholders, nor you is or will be under any legal obligation of any kind whatsoever with respect to such a\ntransaction by virtue of any written or oral expression with respect to such a transaction by the Provider or any of its Representatives, by you or any\nof your Representatives or by virtue of this Agreement except for the matters specifically agreed to herein. You agree that until a final definitive\nagreement providing for a Transaction has been executed and delivered by the Provider and you, no document (including this Agreement and the\nInformation) or other information or materials shall constitute an offer to sell securities of the Provider.\n11. You agree that the Information is and shall be and remain the property of the Provider or its subsidiaries, as applicable, and that the\nProvider has not, and its affiliate and subsidiaries have not, granted and will not grant you any license, copyright or similar\n3\nright with respect to any of the Information or any other material made available to you by or on behalf of the Provider or its subsidiaries.\n12. Your obligations hereunder shall terminate two (2) years from the date of this Agreement.\n13. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware applicable to agreements made\nand to be performed within such State and Provider and Koch hereby submit to the jurisdiction of the courts of such State.\n14. Unless otherwise agreed in writing, all communications from you or your Representatives regarding the Project or this Agreement,\nincluding without limitation requests for additional information, will be directed exclusively to any one of: A.D. Correll, Lee Thomas, Danny Huff,\nTyler Woolson, Jim Kelley or Ken Khoury.\nVery truly yours,\nGeorgia-Pacific Corporation\nBy:\n/s/ Danny W. Huff\nPrint Name: Danny W. Huff\nTitle:\nChief Financial Officer\nACKNOWLEDGED AND AGREED\nKoch Industries, Inc.\nBy:\n/s/ Steven J. Feilmeier\nPrint Name: Steven J. Feilmeier\nTitle\nChief Financial Officer\n4	EX-99.(E)(2) 3 dex99e2.htm CONFIDENTIALITY AGREEMENT\nExhibit ()(2)\nOctober 12, 2005\nKoch Industries, Inc.\n4111 E. 37% Street North\nWichita, Kansas 67220\nAttention: Steve Feilmeier\nRe: Confidentiality Agreement\nDear Steve:\nKoch Industries, Inc. (“Koch” or “you”) now or in the future will be reviewing certain information provided to it by Georgia-Pacific\nCorporation (“GP”) or its affiliates (“Provider”) to assist Koch in evaluating making a possible purchase of certain stock or assets of GP (the\n“Project”). In order that Koch may determine the extent of its interest, certain oral and written information regarding the Project will be provided to\nKoch which is proprietary and confidential information of Provider.\nAs used herein, the term “Person” includes, without limitation, any corporation, company, entity, trust, group, partnership, or individual. The\nterm “Representative” means any Person acting on behalf of Provider or Koch, as the case may be, including without limitation, Koch’s (or\nProvider’s, as the case may be) directors, officers, partners, employees, agents, representatives, financial advisors, attorneys, accountants, and\nconsultants. The term “Information” means any and all oral and written information, including information in documentary, handwritten, electronic\nform, or any other form, that is (i) furnished by Provider to you or any of your Representatives in connection with your evaluation of the Project or\nfurnished to us in regard to the purchase by Koch from Provider of the two pulp and paper mills in May 2004, or (ii) prepared by you or your\nRepresentatives and containing, in whole or in part based on, any information described in clause (i) above.\nIn consideration of your being furnished with the Information by Provider, you agree that:\n1. Subject to Paragraph 6 below, the Information will be kept confidential and will not, without the prior written consent of Provider, be\ndisclosed by you or your Representatives, in whole or in part. Moreover, you agree to disclose to your Representatives that you are evaluating the\nProject and to transmit Information to your Representatives, in both cases, only if and to the extent that such Representatives need to know the\nInformation for the purpose of evaluating the Project and are informed by you of\nthe confidential nature of the Information and agree (in writing in the case of third party Representatives) to be bound by the terms of this\nAgreement.\n2. Except as otherwise permitted herein, without the prior written consent of Provider, you and your Representatives will not disclose to any\nother Person your participation in evaluating the Project, including that Information has been made available or the status of such process, except as\nrequired by law, regulation or legal process and then only with prior written notice to Provider.\n3. If no transaction is consummated between us regarding the Project, upon our request, you will either destroy the Information (including\nall copies thereof) or, at your option, return the Information immediately to Provider, without retaining any copies or extracts thereof; provided.\n4. The term “Information” does not include information which (i) is or becomes available to the public other than as a result of a disclosure\nby you or anyone to whom you or any of your Representatives transmit any information, (ii) is or becomes known or available to you on a basis not\nin contravention of applicable law from a source (other than Provider or one of its Representatives) which you reasonably believe is not prohibited\nfrom transmitting such information to you by any contractual, legal or fiduciary obligation to Provider, (iii) was in your possession prior to the time\nit was acquired hereunder, or (iv) was developed by or for you without reference to the Information.\n5. You (i) acknowledge that neither Provider nor any of its Representatives makes any representation or warranty (express or implied) as to\nthe accuracy or completeness of the Information and (ii) agree, to the full extent permitted by law, that neither Provider nor any of its\nRepresentatives shall have any liability whatsoever to you or to any of your Representatives on any basis (including, without limitation, in contract,\ntort, under federal or state securities laws, or otherwise) as a result of your participation in the evaluation of the Project and the use of the\nInformation by you or your Representatives. This Agreement sets forth all of your obligations with respect to Information except as may be\notherwise provided in a subsequent written agreement between you and us. You agree that only those representations or warranties which are made\nin a final definitive agreement regarding the Project, when, as and if executed and delivered by the parties, and subject to such limitations and\nrestrictions as may be specified therein, shall have any legal effect.\n6. Should any person seek to legally compel you or anyone to whom you transmit the Information pursuant to this Agreement (by oral\nquestions, interrogatories, requests for Information or documents, subpoena, civil investigative demands or otherwise) to disclose any of the\nInformation, you will provide (if not otherwise\nprohibited from doing so) Provider with prompt written notice so that Provider may seek, at Provider’s expense, a protective order or other\nappropriate remedy (including by participating in any proceeding to which Koch is a party, which at Provider’s request you will use all reasonable\nefforts to permit Provider to do) and/or waive compliance with the provisions of this Agreement. You agree to provide reasonable cooperation to\nProvider, including making available witnesses to the extent they are under your control, in connection with its efforts pursuant to this paragraph. If,\nafter complying with the preceding sentence, you are legally compelled to disclose any such Information, you may furnish that portion (but only that\nportion) of the Information which is legally required.\n7. Itis understood and agreed that no failure or delay by Provider or you in exercising any right, power or privilege under this Agreement\nshall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege\nhereunder.\n8. This Agreement shall inure to the benefit of and be binding upon Provider and you and your respective successors and assigns, including\nany successor to Provider or you or to substantially all of its or your assets or business, by merger, consolidation, purchase of assets, purchase of\nstock or otherwise.\n9. You agree that Provider may be irreparably injured by a breach of this Agreement by you or your Representatives and that Provider would\nbe entitled to seek equitable relief, including injunctive relief and specific performance, in the event of any breach of the provisions of this\nAgreement. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by you or your Representatives, but shall\nbe in addition to all other remedies available at law or equity.\n10.  You agree that unless and until a final definitive agreement providing for a transaction has been executed and delivered by the Provider\nand you, none of the Provider, any of its shareholders, nor you is or will be under any legal obligation of any kind whatsoever with respect to such a\ntransaction by virtue of any written or oral expression with respect to such a transaction by the Provider or any of its Representatives, by you or any\nof your Representatives or by virtue of this Agreement except for the matters specifically agreed to herein. You agree that until a final definitive\nagreement providing for a Transaction has been executed and delivered by the Provider and you, no document (including this Agreement and the\nInformation) or other information or materials shall constitute an offer to sell securities of the Provider.\n11.  You agree that the Information is and shall be and remain the property of the Provider or its subsidiaries, as applicable, and that the\nProvider has not, and its affiliate and subsidiaries have not, granted and will not grant you any license, copyright or similar\n3\nright with respect to any of the Information or any other material made available to you by or on behalf of the Provider or its subsidiaries.\n12.  Your obligations hereunder shall terminate two (2) years from the date of this Agreement.\n13.  This Agreement shall be governed and construed in accordance with the laws of the State of Delaware applicable to agreements made\nand to be performed within such State and Provider and Koch hereby submit to the jurisdiction of the courts of such State.\n14.  Unless otherwise agreed in writing, all communications from you or your Representatives regarding the Project or this Agreement,\nincluding without limitation requests for additional information, will be directed exclusively to any one of: A.D. Correll, Lee Thomas, Danny Huff,\nTyler Woolson, Jim Kelley or Ken Khoury.\nVery truly yours,\nGeorgia-Pacific Corporation\nBy: /s/ Danny W. Huff\nPrint Name: Danny W. Huff\nTitle: Chief Financial Officer\nACKNOWLEDGED AND AGREED\nKoch Industries, Inc.\nBy: /s/ Steven J. Feilmeier\nPrint Name: Steven J. Feilmeier\nTitle Chief Financial Officer	X-99.(E)(2) 3 dex99e2.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(2)\nOctober 12, 2005\nKoch Industries, Inc.\n4111 E. 37th Street North\nWichita, Kansas 67220\nAttention: Steve Feilmeier\nRe: Confidentiality Agreement\nDear Steve:\nKoch Industries, Inc. ("Koch" or "you") now or in the future will be reviewing certain information provided to it by Georgia-Pacific\nCorporation ("GP") or its affiliates ("Provider") to assist Koch in evaluating making a possible purchase of certain stock or assets of GP (the\n"Project"). In order that Koch may determine the extent of its interest, certain oral and written information regarding the Project will be provided\nto\nKoch which is proprietary and confidential information of Provider.\nAs used herein, the term "Person" includes, without limitation, any corporation, company, entity, trust, group, partnership, or individual. The\nterm "Representative" means any Person acting on behalf of Provider or Koch, as the case may be, including without limitation, Koch's (or\nProvider's, as the case may be) directors, officers, partners, employees, agents, representatives, financial advisors, attorneys, accountants, and\nconsultants. The term "Information" means any and all oral and written information, including information in documentary, handwritten, electronic\nform, or any other form, that is (i) furnished by Provider to you or any of your Representatives in connection with your evaluation of the Project or\nfurnished to us in regard to the purchase by Koch from Provider of the two pulp and paper mills in May 2004, or (ii) prepared by you or your\nRepresentatives and containing, in whole or in part based on, any information described in clause (i) above.\nIn consideration of your being furnished with the Information by Provider, you agree that:\n1.\nSubject to Paragraph 6 below, the Information will be kept confidential and will not, without the prior written consent of Provider, be\ndisclosed by you or your Representatives, in whole or in part. Moreover, you agree to disclose to your Representatives that you are evaluating the\nProject and to transmit Information to your Representatives, in both cases, only if and to the extent that such Representatives need to know the\nInformation for the purpose of evaluating the Project and are informed by you of\nthe confidential nature of the Information and agree (in writing in the case of third party Representatives) to be bound by the terms of this\nAgreement.\n2. Except as otherwise permitted herein, without the prior written consent of Provider, you and your Representatives will not disclose to\nany\nother Person your participation in evaluating the Project, including that Information has been made available or the status of such process, except\nas\nrequired by law, regulation or legal process and then only with prior written notice to Provider.\n3. If no transaction is consummated between us regarding the Project, upon our request, you will either destroy the Information (including\nall copies thereof) or, at your option, return the Information immediately to Provider, without retaining any copies or extracts thereof; provided.\n4.\nThe term "Information" does not include information which (i) is or becomes available to the public other than as a result of a disclosure\nby you or anyone to whom you or any of your Representatives transmit any information, (ii) is or becomes known or available to you on a basis not\nin\ncontravention of applicable law from a source (other than Provider or one of its Representatives) which you reasonably believe is not prohibited\nfrom transmitting such information to you by any contractual, legal or fiduciary obligation to Provider, (iii) was in your possession prior to the time\nit was acquired hereunder, or (iv) was developed by or for you without reference to the Information.\n5.\nYou (i) acknowledge that neither Provider nor any of its Representatives makes any representation or warranty (express or implied) as to\nthe accuracy or completeness of the Information and (ii) agree, to the full extent permitted by law, that neither Provider nor any of its\nRepresentatives shall have any liability whatsoever to you or to any of your Representatives on any basis (including, without limitation, in contract,\ntort, under federal or state securities laws, or otherwise) as a result of your participation in the evaluation of the Project and the use of the\nInformation by you or your Representatives. This Agreement sets forth all of your obligations with respect to Information except as may be\notherwise provided in a subsequent written agreement between you and us. You agree that only those representations or warranties which are made\nin a final definitive agreement regarding the Project, when, as and if executed and delivered by the parties, and subject to such limitations and\nrestrictions as may be specified therein, shall have any legal effect.\n6.\nShould any person seek to legally compel you or anyone to whom you transmit the Information pursuant to this Agreement (by oral\nquestions, interrogatories, requests for Information or documents, subpoena, civil investigative demands or otherwise) to disclose any of the\nInformation, you will provide (if not otherwise\n2\nprohibited from doing so) Provider with prompt written notice so that Provider may seek, at Provider's expense, a protective order or other\nappropriate remedy (including by participating in any proceeding to which Koch is a party, which at Provider's request you will use all reasonable\nefforts to permit Provider to do) and/or waive compliance with the provisions of this Agreement. You agree to provide reasonable cooperation to\nProvider, including making available witnesses to the extent they are under your control, in connection with its efforts pursuant to this paragraph. If,\nafter complying with the preceding sentence, you are legally compelled to disclose any such Information, you may furnish that portion (but only that\nportion) of the Information which is legally required.\n7. It is understood and agreed that no failure or delay by Provider or you in exercising any right, power or privilege under this Agreement\nshall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege\nhereunder.\n8. This Agreement shall inure to the benefit of and be binding upon Provider and you and your respective successors and assigns, including\nany successor to Provider or you or to substantially all of its or your assets or business, by merger, consolidation, purchase of assets, purchase of\nstock or otherwise.\n9.\nYou agree that Provider may be irreparably injured by a breach of this Agreement by you or your Representatives and that Provider would\nbe entitled to seek equitable relief, including injunctive relief and specific performance, in the event of any breach of the provisions of this\nAgreement. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by you or your Representatives, but shall\nbe in addition to all other remedies available at law or equity.\n10. You agree that unless and until a final definitive agreement providing for a transaction has been executed and delivered by the Provider\nand you, none of the Provider, any of its shareholders, nor you is or will be under any legal obligation of any kind whatsoever with respect to such a\ntransaction by virtue of any written or oral expression with respect to such a transaction by the Provider or any of its Representatives, by you or any\nof\nyour\nRepresentatives or by virtue of this Agreement except for the matters specifically agreed to herein. You agree that until a final definitive\nagreement providing for a Transaction has been executed and delivered by the Provider and you, no document (including this Agreement and the\nInformation) or other information or materials shall constitute an offer to sell securities of the Provider.\n11.\nYou agree that the Information is and shall be and remain the property of the Provider or its subsidiaries, as applicable, and that\nthe\nProvider has not, and its affiliate and subsidiaries have not, granted and will not grant you any license, copyright or similar\n3\nright with respect to any of the Information or any other material made available to you by or on behalf of the Provider or its subsidiaries.\n12. Your obligations hereunder shall terminate two (2) years from the date of this Agreement.\n13.\nThis Agreement shall be governed and construed in accordance with the laws of the State of Delaware applicable to agreements made\nand to be performed within such State and Provider and Koch hereby submit to the jurisdiction of the courts of such State.\n14. Unless otherwise agreed in writing, all communications from you or your Representatives regarding the Project or this Agreement,\nincluding without limitation requests for additional information, will be directed exclusively to any one of: A.D. Correll, Lee Thomas, Danny Huff,\nTyler Woolson, Jim Kelley or Ken Khoury.\nVery truly yours,\nGeorgia-Pacific Corporation\nBy:\n/s/ Danny W. Huff\nPrint Name:\nDanny W. Huff\nTitle:\nChief Financial Officer\nACKNOWLEDGED AND AGREED\nKoch Industries, Inc.\nBy:\n/s/ Steven J. Feilmeier\nPrint Name:\nSteven J. Feilmeier\nTitle\nChief Financial Officer\n4	EX-99.(E)(2) 3 dex99e2.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(2)\nOctober 12, 2005\nKoch Industries, Inc.\n4111 E. 37\nth Street North\nWichita, Kansas 67220\nAttention: Steve Feilmeier\nRe: Confidentiality Agreement\nDear Steve:\nKoch Industries, Inc. (“Koch” or “you”) now or in the future will be reviewing certain information provided to it by Georgia-Pacific\nCorporation (“GP”) or its affiliates (“Provider”) to assist Koch in evaluating making a possible purchase of certain stock or assets of GP (the\n“Project”). In order that Koch may determine the extent of its interest, certain oral and written information regarding the Project will be provided to\nKoch which is proprietary and confidential information of Provider.\nAs used herein, the term “Person” includes, without limitation, any corporation, company, entity, trust, group, partnership, or individual. The\nterm “Representative” means any Person acting on behalf of Provider or Koch, as the case may be, including without limitation, Koch’s (or\nProvider’s, as the case may be) directors, officers, partners, employees, agents, representatives, financial advisors, attorneys, accountants, and\nconsultants. The term “Information” means any and all oral and written information, including information in documentary, handwritten, electronic\nform, or any other form, that is (i) furnished by Provider to you or any of your Representatives in connection with your evaluation of the Project or\nfurnished to us in regard to the purchase by Koch from Provider of the two pulp and paper mills in May 2004, or (ii) prepared by you or your\nRepresentatives and containing, in whole or in part based on, any information described in clause (i) above.\nIn consideration of your being furnished with the Information by Provider, you agree that:\n1. Subject to Paragraph 6 below, the Information will be kept confidential and will not, without the prior written consent of Provider, be\ndisclosed by you or your Representatives, in whole or in part. Moreover, you agree to disclose to your Representatives that you are evaluating the\nProject and to transmit Information to your Representatives, in both cases, only if and to the extent that such Representatives need to know the\nInformation for the purpose of evaluating the Project and are informed by you of\nthe confidential nature of the Information and agree (in writing in the case of third party Representatives) to be bound by the terms of this\nAgreement.\n2. Except as otherwise permitted herein, without the prior written consent of Provider, you and your Representatives will not disclose to any\nother Person your participation in evaluating the Project, including that Information has been made available or the status of such process, except as\nrequired by law, regulation or legal process and then only with prior written notice to Provider.\n3. If no transaction is consummated between us regarding the Project, upon our request, you will either destroy the Information (including\nall copies thereof) or, at your option, return the Information immediately to Provider, without retaining any copies or extracts thereof; provided.\n4. The term “Information” does not include information which (i) is or becomes available to the public other than as a result of a disclosure\nby you or anyone to whom you or any of your Representatives transmit any information, (ii) is or becomes known or available to you on a basis not\nin contravention of applicable law from a source (other than Provider or one of its Representatives) which you reasonably believe is not prohibited\nfrom transmitting such information to you by any contractual, legal or fiduciary obligation to Provider, (iii) was in your possession prior to the time\nit was acquired hereunder, or (iv) was developed by or for you without reference to the Information.\n5. You (i) acknowledge that neither Provider nor any of its Representatives makes any representation or warranty (express or implied) as to\nthe accuracy or completeness of the Information and (ii) agree, to the full extent permitted by law, that neither Provider nor any of its\nRepresentatives shall have any liability whatsoever to you or to any of your Representatives on any basis (including, without limitation, in contract,\ntort, under federal or state securities laws, or otherwise) as a result of your participation in the evaluation of the Project and the use of the\nInformation by you or your Representatives. This Agreement sets forth all of your obligations with respect to Information except as may be\notherwise provided in a subsequent written agreement between you and us. You agree that only those representations or warranties which are made\nin a final definitive agreement regarding the Project, when, as and if executed and delivered by the parties, and subject to such limitations and\nrestrictions as may be specified therein, shall have any legal effect.\n6. Should any person seek to legally compel you or anyone to whom you transmit the Information pursuant to this Agreement (by oral\nquestions, interrogatories, requests for Information or documents, subpoena, civil investigative demands or otherwise) to disclose any of the\nInformation, you will provide (if not otherwise\n2\nprohibited from doing so) Provider with prompt written notice so that Provider may seek, at Provider’s expense, a protective order or other\nappropriate remedy (including by participating in any proceeding to which Koch is a party, which at Provider’s request you will use all reasonable\nefforts to permit Provider to do) and/or waive compliance with the provisions of this Agreement. You agree to provide reasonable cooperation to\nProvider, including making available witnesses to the extent they are under your control, in connection with its efforts pursuant to this paragraph. If,\nafter complying with the preceding sentence, you are legally compelled to disclose any such Information, you may furnish that portion (but only that\nportion) of the Information which is legally required.\n7. It is understood and agreed that no failure or delay by Provider or you in exercising any right, power or privilege under this Agreement\nshall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege\nhereunder.\n8. This Agreement shall inure to the benefit of and be binding upon Provider and you and your respective successors and assigns, including\nany successor to Provider or you or to substantially all of its or your assets or business, by merger, consolidation, purchase of assets, purchase of\nstock or otherwise.\n9. You agree that Provider may be irreparably injured by a breach of this Agreement by you or your Representatives and that Provider would\nbe entitled to seek equitable relief, including injunctive relief and specific performance, in the event of any breach of the provisions of this\nAgreement. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by you or your Representatives, but shall\nbe in addition to all other remedies available at law or equity.\n10. You agree that unless and until a final definitive agreement providing for a transaction has been executed and delivered by the Provider\nand you, none of the Provider, any of its shareholders, nor you is or will be under any legal obligation of any kind whatsoever with respect to such a\ntransaction by virtue of any written or oral expression with respect to such a transaction by the Provider or any of its Representatives, by you or any\nof your Representatives or by virtue of this Agreement except for the matters specifically agreed to herein. You agree that until a final definitive\nagreement providing for a Transaction has been executed and delivered by the Provider and you, no document (including this Agreement and the\nInformation) or other information or materials shall constitute an offer to sell securities of the Provider.\n11. You agree that the Information is and shall be and remain the property of the Provider or its subsidiaries, as applicable, and that the\nProvider has not, and its affiliate and subsidiaries have not, granted and will not grant you any license, copyright or similar\n3\nright with respect to any of the Information or any other material made available to you by or on behalf of the Provider or its subsidiaries.\n12. Your obligations hereunder shall terminate two (2) years from the date of this Agreement.\n13. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware applicable to agreements made\nand to be performed within such State and Provider and Koch hereby submit to the jurisdiction of the courts of such State.\n14. Unless otherwise agreed in writing, all communications from you or your Representatives regarding the Project or this Agreement,\nincluding without limitation requests for additional information, will be directed exclusively to any one of: A.D. Correll, Lee Thomas, Danny Huff,\nTyler Woolson, Jim Kelley or Ken Khoury.\nVery truly yours,\nGeorgia-Pacific Corporation\nBy:\n/s/ Danny W. Huff\nPrint Name: Danny W. Huff\nTitle:\nChief Financial Officer\nACKNOWLEDGED AND AGREED\nKoch Industries, Inc.\nBy:\n/s/ Steven J. Feilmeier\nPrint Name: Steven J. Feilmeier\nTitle\nChief Financial Officer\n4
+825e7621085e6b7b0cfd23dc5d16a9b8.pdf	effective_date jurisdiction party term	EX-4 2 dex4.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit 4\n[AIR TRANSPORT SERVICES GROUP LETTERHEAD]\nFebruary 2, 2009\nJ. Christopher Teets\nPartner\nRed Mountain Capital Partners LLC\n10100 Santa Monica Boulevard, Suite 925\nLos Angeles, CA 90067\nRe: Confidentiality and Standstill Agreement\nDear Mr. Teets:\nAs you know, that certain letter agreement by and between Red Mountain Capital Partners LLC, a Delaware limited liability company\n(“Red Mountain”) and Air Transport Services Group, Inc., a Delaware corporation (formerly ABX Holdings, Inc., “ATSG”), dated February 6, 2008,\nterminated automatically pursuant to its terms on December 31, 2008. In response to Red Mountain’s renewed request, ATSG has agreed to and\nexpects to deliver to Red Mountain, following the execution and delivery of this letter agreement by Red Mountain, certain information about its\nproperties, employees, finances, businesses and operations (including monthly financial information and all information and materials provided or\nmade available to the full board of directors of ATSG (the “Board of Directors”) or otherwise to a majority of the members of the Board of\nDirectors) that is currently available or becomes available during the duration of this letter agreement; provided, however, that nothing in this letter\nagreement obligates ATSG to disclose any information if such disclosure would be unlawful or result in a breach by ATSG or one of its subsidiaries\nof a confidentiality agreement with a third party.\nAll information about ATSG or any third party that is furnished by ATSG or its Representatives (as defined below) to Red Mountain on\nor after the date hereof, and regardless of the manner in which it is furnished, is referred to in this letter agreement as “Proprietary Information.”\nProprietary Information shall not include, however, information which (i) is or becomes generally available to the public other than as a result of a\ndisclosure by Red Mountain, the Affiliates (as defined below) or any of their respective Representatives in violation of this letter agreement; (ii) was\navailable to Red Mountain on a nonconfidential basis prior to its disclosure by ATSG or its Representatives; (iii) becomes available to Red Mountain\non a nonconfidential basis from a person other than ATSG or its Representatives who is not otherwise bound by a confidentiality agreement with\nATSG or any or its Representatives, or is otherwise not under an obligation to ATSG or any of its Representatives not to transmit the information to\nRed Mountain; or (iv) was independently developed by Red Mountain without reference to or use of the Proprietary Information. For purposes of\nthis letter agreement, (i) “Affiliates” shall mean, collectively, Red Mountain Capital Partners II, L.P., a Delaware limited partnership, Red Mountain\nCapital Partners III, L.P., a Delaware limited partnership, RMCP GP LLC, a Delaware limited liability company, Red Mountain Capital\nManagement, Inc., a Delaware corporation, and Willem Mesdag, a natural person; (ii) “Representative” shall mean, as to any person, its directors,\nofficers, employees, agents and advisors (including, without limitation, financial advisors, attorneys and accountants); and (iii) “person” shall be\nbroadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by ATSG, Red Mountain shall, (i) except as\nrequired by law, keep all Proprietary Information confidential and not disclose or reveal any Proprietary Information to any person (other than to its\nAffiliates, Representatives and Representatives of the Affiliates who have a need to know such information for purposes of assisting in Red\nMountain’s evaluation of ATSG, provided that each such Affiliate and Representative shall keep confidential all Proprietary Information that is so\ndisclosed or revealed to him or her in accordance with Red Mountain’s confidentiality obligations hereunder with respect to such Proprietary\nInformation); (ii) not use Proprietary Information for any purpose other than in connection with the evaluation of ATSG; and (iii) except as required\nby law or legal process, not disclose to any person the fact that Proprietary Information has been disclosed to Red Mountain; provided that, for the\navoidance of doubt, the disclosure of the existence of this letter agreement and the filing of this letter agreement as an exhibit to any Schedule 13D\nor amendment thereto shall not be deemed to be a breach of the foregoing clause (iii). The obligations of Red Mountain contained in this paragraph\nto keep Proprietary Information confidential shall survive any termination or expiration of this agreement for a period of nine months from and after\nthe termination or expiration of this agreement.\nIn the event that Red Mountain or any Affiliate is requested pursuant to, or required by, applicable law or regulation (including, without\nlimitation, any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which any of Red\nMountain’s securities are listed or quoted) or by legal process to disclose any Proprietary Information, Red Mountain shall provide ATSG with\nprompt notice of such request or requirement in order to enable ATSG (i) to seek an appropriate protective order or other remedy, (ii) to consult with\nRed Mountain with respect to ATSG’s taking steps to resist or narrow the scope of such request or legal process or (iii) to waive compliance, in\nwhole or in part, with the terms of this letter agreement. In the event that such protective order or other remedy is not timely sought or obtained, or\nATSG waives compliance, in whole or in part, with the terms of this letter agreement, Red Mountain shall use commercially reasonable efforts to\ndisclose only that portion of the Proprietary Information which is legally required to be disclosed and to ensure that all Proprietary Information that\nis so disclosed will be accorded confidential treatment. In the event that Red Mountain shall have complied, in all material respects, with the\nprovisions of this paragraph, such disclosure may be made by Red Mountain without any liability hereunder.\nFor a period commencing with the date of this letter agreement and ending on the later to occur of December 31, 2009, or the date upon\nwhich no persons affiliated with Red\n-2-\nMountain are serving on the Board of Directors, neither Red Mountain nor its Affiliates nor any other person affiliated with Red Mountain shall,\nwithout the prior written consent of ATSG or the Board of Directors, directly or indirectly:\n(a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, (i) any additional common stock or\ndirect or indirect rights to acquire any common stock of ATSG or any subsidiary thereof, or of any successor to or person in control of ATSG\nsuch that Red Mountain, the Affiliates and any other person affiliated with Red Mountain, collectively, beneficially own, directly or indirectly,\nfor purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Rule 13d-3 thereunder (or any\ncomparable or successor law or regulation) in excess of 14.9% of the amount of the issued and outstanding common stock of ATSG, or (ii) any\nassets of ATSG or any subsidiary or division thereof or of any such successor or controlling person;\n(b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of\nthe Securities and Exchange Commission), or seek to advise or influence any person or entity with respect to the voting of any voting\nsecurities of ATSG;\n(c) nominate or seek to nominate, directly or indirectly, any person to the Board of Directors;\n(d) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary\ntransaction involving ATSG or any of its securities or assets;\n(e) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Exchange Act in connection with any of the\nforegoing;\n(f) otherwise act or seek to control or influence the Board of Directors or the management or policies of ATSG;\n(g) take any action that could reasonably be expected to require ATSG to make a public announcement regarding the possibility of any of\nthe events described in clauses (a) through (e) above; or\n(h) request ATSG or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph.\nThe foregoing paragraph is sometimes referenced in this letter agreement as the “standstill provision.” For the avoidance of doubt, if any person\naffiliated with Red Mountain serves on the Board of Directors, the standstill provisions are not intended to be construed to apply to actions taken by\nsuch person in his capacity as a member of the Board of Directors.\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any\nother applicable privilege concerning\n-3-\npending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest\nwith respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall\nnot, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product\ndoctrine or other applicable privilege. All Proprietary Information provided by ATSG that is entitled to protection under the attorney-client privilege,\nwork product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this letter agreement, and under\nthe joint defense doctrine. Nothing in this letter agreement obligates ATSG to reveal material subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege.\nRed Mountain acknowledges that neither ATSG nor any of its Representatives makes any express or implied representation or warranty\nas to the accuracy or completeness of any Proprietary Information, and Red Mountain agrees that none of such persons shall have any liability to\nRed Mountain or any of its Affiliates or Representatives relating to or arising from the use of any Proprietary Information.\nIn the event that ATSG, in its sole discretion, requests, Red Mountain shall, upon ATSG’s written request, promptly deliver to ATSG or\ndestroy (provided that any such destruction shall be certified by Red Mountain) all Proprietary Information and all copies, reproductions, summaries,\nanalyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files) in Red\nMountain’s possession or in the possession of any Representative of Red Mountain or any Affiliate.\nRed Mountain is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any\nperson who has received material, non-public information from the issuer of such securities and on the communication of such information to any\nother person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\nWithout prejudice to the rights and remedies otherwise available to either party hereto, ATSG shall be entitled to equitable relief by way\nof injunction or otherwise if Red Mountain or any of the Affiliates breaches or threatens to breach any of the provisions of this letter agreement.\nNo failure or delay by any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall\nany single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\nThis letter agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without giving effect to its\nprinciples or rules regarding conflicts of laws, other than such principles directing application of Ohio law. Each party hereby consents to the\ninstitution and resolution of any action or proceeding of any kind or nature with respect to or arising out of this agreement brought by any party\nhereto in the federal or state courts located within the State of Ohio.\n-4-\nThis letter agreement contains the entire agreement between the parties hereto concerning confidentiality of the Proprietary Information,\nand no modification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon any party hereto, unless approved in\nwriting by each such party.\nThis letter agreement shall terminate automatically on the later to occur of December 31, 2009, or the date upon which no persons\naffiliated with Red Mountain are serving on the Board of Directors (or on such later date agreed upon in writing by the parties); provided that Red\nMountain may, in its sole discretion, terminate this letter agreement (including the standstill provision) by delivering written notice of such\ntermination to ATSG at any time after the approval by the Board of Directors of:\n(i) any sale of more than 20% of the assets of ATSG and its subsidiaries, taken as a whole;\n(ii) the beneficial ownership (as defined by Rule 13d-3 under the Exchange Act) by any person of more than 20% of any class of\noutstanding equity securities of ATSG, including any equity issuance, tender offer, exchange offer or other transaction or series of\ntransactions that, if consummated, would result in any person beneficially owning more than 20% of any class of outstanding\nequity securities of ATSG; or\n(iii) any merger, consolidation or other business combination involving ATSG or any of its subsidiaries and a third party.\nIn addition, if the Board of Directors undertakes a formal process to solicit proposals with respect to any of the foregoing or, with respect to\nunsolicited proposals, determines that any proposal relating to any of the foregoing is reasonably likely to be approved, ATSG shall notify Red\nMountain that subparagraph (h) of the standstill provision has been waived by ATSG.\nFor the avoidance of doubt, neither Red Mountain nor any other person shall have any obligation hereunder (and Red Mountain shall not\nbe prohibited by this letter agreement from taking, directly and indirectly, any or all of the actions described in subparagraphs (a) through (h) of the\nstandstill provision) from and after the termination of this letter agreement.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter agreement\nenclosed herewith.\n[THE REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]\n-5-\nVery truly yours,\nAIR TRANSPORT SERVICES GROUP, INC.\nBy: /s/ W. Joseph Payne\nW. Joseph Payne\nSr. Vice President\nCorporate General Counsel & Secretary\nACCEPTED AND AGREED as of the date first written above:\nRED MOUNTAIN CAPITAL PARTNERS LLC\nBy: /s/ J. Christopher Teets\nJ. Christopher Teets\n-6-	EX-4 2 dex4.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit 4\n[AIR TRANSPORT SERVICES GROUP LETTERHEAD]\nFebruary 2, 2009\nJ. Christopher Teets\nPartner\nRed Mountain Capital Partners LLC\n10100 Santa Monica Boulevard, Suite 925\nLos Angeles, CA 90067\nRe: Confidentiality and Standstill Agreement\nDear Mr. Teets:\nAs you know, that certain letter agreement by and between Red Mountain Capital Partners LLC, a Delaware limited liability company\n(“Red Mountain”) and Air Transport Services Group, Inc., a Delaware corporation (formerly ABX Holdings, Inc., “ATSG”), dated February 6, 2008,\nterminated automatically pursuant to its terms on December 31, 2008. In response to Red Mountain’s renewed request, ATSG has agreed to and\nexpects to deliver to Red Mountain, following the execution and delivery of this letter agreement by Red Mountain, certain information about its\nproperties, employees, finances, businesses and operations (including monthly financial information and all information and materials provided or\nmade available to the full board of directors of ATSG (the “Board of Directors”) or otherwise to a majority of the members of the Board of\nDirectors) that is currently available or becomes available during the duration of this letter agreement; provided, however, that nothing in this letter\nagreement obligates ATSG to disclose any information if such disclosure would be unlawful or result in a breach by ATSG or one of its subsidiaries\nof a confidentiality agreement with a third party.\nAll information about ATSG or any third party that is furnished by ATSG or its Representatives (as defined below) to Red Mountain on\nor after the date hereof, and regardless of the manner in which it is furnished, is referred to in this letter agreement as “Proprietary Information.”\nProprietary Information shall not include, however, information which (i) is or becomes generally available to the public other than as a result of a\ndisclosure by Red Mountain, the Affiliates (as defined below) or any of their respective Representatives in violation of this letter agreement; (ii) was\navailable to Red Mountain on a nonconfidential basis prior to its disclosure by ATSG or its Representatives; (iii) becomes available to Red Mountain\non a nonconfidential basis from a person other than ATSG or its Representatives who is not otherwise bound by a confidentiality agreement with\nATSG or any or its Representatives, or is otherwise not under an obligation to ATSG or any of its Representatives not to transmit the information to\nRed Mountain; or (iv) was independently developed by Red Mountain without reference to or use of the Proprietary Information. For purposes of\nthis letter agreement, (i) “Affiliates” shall mean, collectively, Red Mountain Capital Partners II, L.P., a Delaware limited partnership, Red Mountain\nCapital Partners III, L.P., a Delaware limited partnership, RMCP GP LLC, a Delaware limited liability company, Red Mountain Capital\nManagement, Inc., a Delaware corporation, and Willem Mesdag, a natural person; (ii) “Representative” shall mean, as to any person, its directors,\nofficers, employees, agents and advisors (including, without limitation, financial advisors, attorneys and accountants); and (iii) “person” shall be\nbroadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by ATSG, Red Mountain shall, (i) except as\nrequired by law, keep all Proprietary Information confidential and not disclose or reveal any Proprietary Information to any person (other than to its\nAffiliates, Representatives and Representatives of the Affiliates who have a need to know such information for purposes of assisting in Red\nMountain’s evaluation of ATSG, provided that each such Affiliate and Representative shall keep confidential all Proprietary Information that is so\ndisclosed or revealed to him or her in accordance with Red Mountain’s confidentiality obligations hereunder with respect to such Proprietary\nInformation); (ii) not use Proprietary Information for any purpose other than in connection with the evaluation of ATSG; and (iii) except as required\nby law or legal process, not disclose to any person the fact that Proprietary Information has been disclosed to Red Mountain; provided that, for the\navoidance of doubt, the disclosure of the existence of this letter agreement and the filing of this letter agreement as an exhibit to any Schedule 13D\nor amendment thereto shall not be deemed to be a breach of the foregoing clause (iii). The obligations of Red Mountain contained in this paragraph\nto keep Proprietary Information confidential shall survive any termination or expiration of this agreement for a period of nine months from and after\nthe termination or expiration of this agreement.\nIn the event that Red Mountain or any Affiliate is requested pursuant to, or required by, applicable law or regulation (including, without\nlimitation, any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which any of Red\nMountain’s securities are listed or quoted) or by legal process to disclose any Proprietary Information, Red Mountain shall provide ATSG with\nprompt notice of such request or requirement in order to enable ATSG (i) to seek an appropriate protective order or other remedy, (ii) to consult with\nRed Mountain with respect to ATSG’s taking steps to resist or narrow the scope of such request or legal process or (iii) to waive compliance, in\nwhole or in part, with the terms of this letter agreement. In the event that such protective order or other remedy is not timely sought or obtained, or\nATSG waives compliance, in whole or in part, with the terms of this letter agreement, Red Mountain shall use commercially reasonable efforts to\ndisclose only that portion of the Proprietary Information which is legally required to be disclosed and to ensure that all Proprietary Information that\nis so disclosed will be accorded confidential treatment. In the event that Red Mountain shall have complied, in all material respects, with the\nprovisions of this paragraph, such disclosure may be made by Red Mountain without any liability hereunder.\nFor a period commencing with the date of this letter agreement and ending on the later to occur of December 31, 2009, or the date upon\nwhich no persons affiliated with Red\n-\nMountain are serving on the Board of Directors, neither Red Mountain nor its Affiliates nor any other person affiliated with Red Mountain shall,\nwithout the prior written consent of ATSG or the Board of Directors, directly or indirectly:\n(a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, (i) any additional common stock or\ndirect or indirect rights to acquire any common stock of ATSG or any subsidiary thereof, or of any successor to or person in control of ATSG\nsuch that Red Mountain, the Affiliates and any other person affiliated with Red Mountain, collectively, beneficially own, directly or indirectly,\nfor purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Rule 13d-3 thereunder (or any\ncomparable or successor law or regulation) in excess of 14.9% of the amount of the issued and outstanding common stock of ATSG, or (ii) any\nassets of ATSG or any subsidiary or division thereof or of any such successor or controlling person;\n(b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of\nthe Securities and Exchange Commission), or seek to advise or influence any person or entity with respect to the voting of any voting\nsecurities of ATSG;\n(c) nominate or seek to nominate, directly or indirectly, any person to the Board of Directors;\n(d) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary\ntransaction involving ATSG or any of its securities or assets;\n(e) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Exchange Act in connection with any of the\nforegoing;\n(f) otherwise act or seek to control or influence the Board of Directors or the management or policies of ATSG;\n(g) take any action that could reasonably be expected to require ATSG to make a public announcement regarding the possibility of any of\nthe events described in clauses (a) through (e) above; or\n(h) request ATSG or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph.\nThe foregoing paragraph is sometimes referenced in this letter agreement as the “standstill provision.” For the avoidance of doubt, if any person\naffiliated with Red Mountain serves on the Board of Directors, the standstill provisions are not intended to be construed to apply to actions taken by\nsuch person in his capacity as a member of the Board of Directors.\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any\nother applicable privilege concerning\n_3-\npending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest\nwith respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall\nnot, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product\ndoctrine or other applicable privilege. All Proprietary Information provided by ATSG that is entitled to protection under the attorney-client privilege,\nwork product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this letter agreement, and under\nthe joint defense doctrine. Nothing in this letter agreement obligates ATSG to reveal material subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege.\nRed Mountain acknowledges that neither ATSG nor any of its Representatives makes any express or implied representation or warranty\nas to the accuracy or completeness of any Proprietary Information, and Red Mountain agrees that none of such persons shall have any liability to\nRed Mountain or any of its Affiliates or Representatives relating to or arising from the use of any Proprietary Information.\nIn the event that ATSG, in its sole discretion, requests, Red Mountain shall, upon ATSG’s written request, promptly deliver to ATSG or\ndestroy (provided that any such destruction shall be certified by Red Mountain) all Proprietary Information and all copies, reproductions, summaries,\nanalyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files) in Red\nMountain’s possession or in the possession of any Representative of Red Mountain or any Affiliate.\nRed Mountain is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any\nperson who has received material, non-public information from the issuer of such securities and on the communication of such information to any\nother person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\nWithout prejudice to the rights and remedies otherwise available to either party hereto, ATSG shall be entitled to equitable relief by way\nof injunction or otherwise if Red Mountain or any of the Affiliates breaches or threatens to breach any of the provisions of this letter agreement.\nNo failure or delay by any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall\nany single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\nThis letter agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without giving effect to its\nprinciples or rules regarding conflicts of laws, other than such principles directing application of Ohio law. Each party hereby consents to the\ninstitution and resolution of any action or proceeding of any kind or nature with respect to or arising out of this agreement brought by any party\nhereto in the federal or state courts located within the State of Ohio.\n4-\nThis letter agreement contains the entire agreement between the parties hereto concerning confidentiality of the Proprietary Information,\nand no modification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon any party hereto, unless approved in\nwriting by each such party.\nThis letter agreement shall terminate automatically on the later to occur of December 31, 2009, or the date upon which no persons\naffiliated with Red Mountain are serving on the Board of Directors (or on such later date agreed upon in writing by the parties); provided that Red\nMountain may, in its sole discretion, terminate this letter agreement (including the standstill provision) by delivering written notice of such\ntermination to ATSG at any time after the approval by the Board of Directors of:\n \n@ any sale of more than 20% of the assets of ATSG and its subsidiaries, taken as a whole;\n(ii)  the beneficial ownership (as defined by Rule 13d-3 under the Exchange Act) by any person of more than 20% of any class of\noutstanding equity securities of ATSG, including any equity issuance, tender offer, exchange offer or other transaction or series of\ntransactions that, if consummated, would result in any person beneficially owning more than 20% of any class of outstanding\nequity securities of ATSG; or\n(iii)  any merger, consolidation or other business combination involving ATSG or any of its subsidiaries and a third party.\nIn addition, if the Board of Directors undertakes a formal process to solicit proposals with respect to any of the foregoing or, with respect to\nunsolicited proposals, determines that any proposal relating to any of the foregoing is reasonably likely to be approved, ATSG shall notify Red\nMountain that subparagraph (h) of the standstill provision has been waived by ATSG.\nFor the avoidance of doubt, neither Red Mountain nor any other person shall have any obligation hereunder (and Red Mountain shall not\nbe prohibited by this letter agreement from taking, directly and indirectly, any or all of the actions described in subparagraphs (a) through (h) of the\nstandstill provision) from and after the termination of this letter agreement.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter agreement\nenclosed herewith.\n[THE REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]\n_5-\nVery truly yours,\nAIR TRANSPORT SERVICES GROUP, INC.\nBy: /s/ W. Joseph Payne\nW. Joseph Payne\nSr. Vice President\nCorporate General Counsel & Secretary\nACCEPTED AND AGREED as of the date first written above:\nRED MOUNTAIN CAPITAL PARTNERS LLC\nBy: /s/J. Christopher Teets\nJ. Christopher Teets	EX-4 2 dex4.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit 4\n[AIR TRANSPORT SERVICES GROUP LETTERHEAD]\nFebruary 2, 2009\nJ. Christopher Teets\nPartner\nRed Mountain Capital Partners LLC\n10100 Santa Monica Boulevard, Suite 925\nLos Angeles, CA 90067\nRe: Confidentiality and Standstill Agreement\nDear Mr. Teets:\nAs you know, that certain letter agreement by and between Red Mountain Capital Partners LLC, a Delaware limited liability company\n("Red\nMountain") and Air Transport Services Group, Inc., a Delaware corporation (formerly ABX Holdings, Inc., "ATSG"), dated February 6, 2008,\nterminated automatically pursuant to its terms on December 31, 2008. In response to Red Mountain's renewed request, ATSG has agreed to and\nexpects to deliver to Red Mountain, following the execution and delivery of this letter agreement by Red Mountain, certain information about its\nproperties, employees, finances, businesses and operations (including monthly financial information and all information and materials provided or\nmade available to the full board of directors of ATSG (the "Board of Directors") or otherwise to a majority of the members of the Board of\nDirectors) that is currently available or becomes available during the duration of this letter agreement; provided, however, that nothing in this letter\nagreement obligates ATSG to disclose any information if such disclosure would be unlawful or result in a breach by ATSG or one of its subsidiaries\nof a confidentiality agreement with a third party.\nAll information about ATSG or any third party that is furnished by ATSG or its Representatives (as defined below) to Red Mountain on\nor after the date hereof, and regardless of the manner in which it is furnished, is referred to in this letter agreement as "Proprietary Information."\nProprietary Information shall not include, however, information which (i) is or becomes generally available to the public other than as a result of a\ndisclosure by Red Mountain, the Affiliates (as defined below) or any of their respective Representatives in violation of this letter agreement; (ii) was\navailable to Red Mountain on a nonconfidentia basis prior to its disclosure by ATSG or its Representatives; (iii) becomes available to Red Mountain\non a nonconfidential basis from a person other than ATSG or its Representatives who is not otherwise bound by a confidentiality agreement with\nATSG or any or its Representatives, or is otherwise not under an obligation to ATSG or any of its Representatives not to transmit the information\nto\nRed Mountain; or (iv) was independently developed by Red Mountain without reference to or use of the Proprietary Information. For purposes of\nthis letter agreement, (i) "Affiliates" shall mean, collectively, Red Mountain Capital Partners II, L.P., a Delaware limited partnership, Red Mountain\nCapital Partners III, L.P., a Delaware limited partnership, RMCP GP LLC, a Delaware limited liability company, Red Mountain Capital\nManagement, Inc., a Delaware corporation, and Willem Mesdag, a natural person; (ii) "Representative" shall mean, as to any person, its directors,\nofficers, employees, agents and advisors (including, without limitation, financial advisors, attorneys and accountants); and (iii) "person" shall be\nbroadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by ATSG, Red Mountain shall, (i) except as\nrequired by law, keep all Proprietary Information confidentia and not disclose or reveal any Proprietary Information to any person (other than to its\nAffiliates, Representatives and Representatives of the Affiliates who have a need to know such information for purposes of assisting in Red\nMountain's evaluation of ATSG, provided that each such Affiliate and Representative shall keep confidential all Proprietary Information that is so\ndisclosed or revealed to him or her in accordance with Red Mountain's confidentiality obligations hereunder with respect to such Proprietary\nInformation); (ii) not use Proprietary Information for any purpose other than in connection with the evaluation of ATSG; and (iii) except as required\nby law or legal process, not disclose to any person the fact that Proprietary Information has been disclosed to Red Mountain; provided that, for the\navoidance of doubt, the disclosure of the existence of this letter agreement and the filing of this letter agreement as an exhibit to any Schedule 13D\nor amendment thereto shall not be deemed to be a breach of the foregoing clause (iii). The obligations of Red Mountain contained in this paragraph\nto keep Proprietary Information confidential shall survive any termination or expiration of this agreement for a period of nine months from and after\nthe termination or expiration of this agreement.\nIn the event that Red Mountain or any Affiliate is requested pursuant to, or required by, applicable law or regulation (including, without\nlimitation, any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which any of Red\nMountain's securities are listed or quoted) or by legal process to disclose any Proprietary Information, Red Mountain shall provide ATSG with\nprompt notice of such request or requirement in order to enable ATSG (i) to seek an appropriate protective order or other remedy, (ii) to consult with\nRed Mountain with respect to ATSG's taking steps to resist or narrow the scope of such request or legal process or (iii) to waive compliance, in\nwhole or in part, with the terms of this letter agreement. In the event that such protective order or other remedy is not timely sought or obtained, or\nATSG waives compliance, in whole or in part, with the terms of this letter agreement, Red Mountain shall use commercially reasonable efforts to\ndisclose only that portion of the Proprietary Information which is legally required to be disclosed and to ensure that all Proprietary Information that\nis so disclosed will be accorded confidential treatment. In the event that Red Mountain shall have complied, in all material respects, with the\nprovisions of this paragraph, such disclosure may be made by Red Mountain without any liability hereunder.\nFor a period commencing with the date of this letter agreement and ending on the later to occur of December 31, 2009, or the date upon\nwhich no persons affiliated with Red\n-2-\nMountain are serving on the Board of Directors, neither Red Mountain nor its Affiliates nor any other person affiliated with Red Mountain shall,\nwithout the prior written consent of ATSG or the Board of Directors, directly or indirectly:\n(a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, (i) any additional common stock or\ndirect or indirect rights to acquire any common stock of ATSG or any subsidiary thereof, or of any successor to or person in control of ATSG\nsuch that Red Mountain, the Affiliates and any other person affiliated with Red Mountain, collectively, beneficially own, directly or indirectly,\nfor purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Rule 13d-3 thereunder (or any\ncomparable or successor law or regulation) in excess of 14.9% of the amount of the issued and outstanding common stock of ATSG, or (ii) any\nassets of ATSG or any subsidiary or division thereof or of any such successor or controlling person;\n(b) make, or in any way participate, directly or indirectly, in any "solicitation" of "proxies" to vote (as such terms are used in the rules of\nthe Securities and Exchange Commission), or seek to advise or influence any person or entity with respect to the voting of any voting\nsecurities of ATSG;\n(c) nominate or seek to nominate, directly or indirectly, any person to the Board of Directors;\n(d) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary\ntransaction involving ATSG or any of its securities or assets;\n(e) form, join or in any way participate in a "group" as defined in Section 13(d)(3) of the Exchange Act in connection with any of the\nforegoing;\n(f) otherwise act or seek to control or influence the Board of Directors or the management or policies of ATSG;\n(g) take any action that could reasonably be expected to require ATSG to make a public announcement regarding the possibility of any of\nthe events described in clauses (a) through (e) above; or\n(h) request ATSG or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph.\nThe foregoing paragraph is sometimes referenced in this letter agreement as the "'standstill provision." For the avoidance of doubt, if any person\naffiliated with Red Mountain serves on the Board of Directors, the standstill provisions are not intended to be construed to apply to actions taken by\nsuch person in his capacity as a member of the Board of Directors.\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any\nother applicable privilege concerning\n-3-\npending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest\nwith respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall\nnot, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product\ndoctrine or other applicable privilege. All Proprietary Information provided by ATSG that is entitled to protection under the attorney-client privilege,\nwork product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this letter agreement, and under\nthe joint defense doctrine. Nothing in this letter agreement obligates ATSG to reveal material subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege.\nRed Mountain acknowledges that neither ATSG nor any of its Representatives makes any express or implied representation or warranty\nas to the accuracy or completeness of any Proprietary Information, and Red Mountain agrees that none of such persons shall have any liability to\nRed Mountain or any of its Affiliates or Representatives relating to or arising from the use of any Proprietary Information.\nIn the event that ATSG, in its sole discretion, requests, Red Mountain shall, upon ATSG's written request, promptly deliver to ATSG or\ndestroy (provided that any such destruction shall be certified by Red Mountain) all Proprietary Information and all copies, reproductions, summaries,\nanalyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files) in Red\nMountain's possession or in the possession of any Representative of Red Mountain or any Affiliate.\nRed Mountain is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any\nperson who has received material, non-public information from the issuer of such securities and on the communication of such information to any\nother person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\nWithout prejudice to the rights and remedies otherwise available to either party hereto, ATSG shall be entitled to equitable relief by way\nof injunction or otherwise if Red Mountain or any of the Affiliates breaches or threatens to breach any of the provisions of this letter agreement.\nNo failure or delay by any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall\nany\nsingle or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\nThis letter agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without giving effect to its\nprinciples or rules regarding conflicts of laws, other than such principles directing application of Ohio law. Each party hereby consents to the\ninstitution and resolution of any action or proceeding of any kind or nature with respect to or arising out of this agreement brought by any party\nhereto in the federal or state courts located within the State of Ohio.\n-4-\nThis letter agreement contains the entire agreement between the parties hereto concerning confidentiality of the Proprietary Information,\nand no modification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon any party hereto, unless approved in\nwriting by each such party.\nThis letter agreement shall terminate automatically on the later to occur of December 31, 2009, or the date upon which no persons\naffiliated with Red Mountain are serving on the Board of Directors (or on such later date agreed upon in writing by the parties); provided that Red\nMountain may, in its sole discretion, terminate this letter agreement (including the standstill provision) by delivering written notice of such\ntermination to ATSG at any time after the approval by the Board of Directors of:\n(i)\nany sale of more than 20% of the assets of ATSG and its subsidiaries, taken as a whole;\n(ii)\nthe beneficial ownership (as defined by Rule 13d-3 under the Exchange Act) by any person of more than 20% of any class\nof\noutstanding equity securities of ATSG, including any equity issuance, tender offer, exchange offer or other transaction or series\nof\ntransactions that, if consummated, would result in any person beneficially owning more than 20% of any class of outstanding\nequity securities of ATSG; or\n(iii)\nany merger, consolidation or other business combination involving ATSG or any of its subsidiaries and a third party.\nIn addition, if the Board of Directors undertakes a formal process to solicit proposals with respect to any of the foregoing or, with respect to\nunsolicited proposals, determines that any proposal relating to any of the foregoing is reasonably likely to be approved, ATSG shall notify Red\nMountain that subparagraph (h) of the standstill provision has been waived by ATSG.\nFor the avoidance of doubt, neither Red Mountain nor any other person shall have any obligation hereunder (and Red Mountain shall\nnot\nbe prohibited by this letter agreement from taking, directly and indirectly, any or all of the actions described in subparagraphs (a) through (h) of the\nstandstill provision) from and after the termination of this letter agreement.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter agreement\nenclosed herewith.\n[THE REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]\n-5-\nVery truly yours,\nAIR TRANSPORT SERVICES GROUP, INC.\nBy: /s/ W. Joseph Payne\nW. Joseph Payne\nSr. Vice President\nCorporate General Counsel & Secretary\nACCEPTED AND AGREED as of the date first written above:\nRED MOUNTAIN CAPITAL PARTNERS LLC\nBy: /s/ J. Christopher Teets\nJ. Christopher Teets\n-6-	EX-4 2 dex4.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit 4\n[AIR TRANSPORT SERVICES GROUP LETTERHEAD]\nFebruary 2, 2009\nJ. Christopher Teets\nPartner\nRed Mountain Capital Partners LLC\n10100 Santa Monica Boulevard, Suite 925\nLos Angeles, CA 90067\nRe: Confidentiality and Standstill Agreement\nDear Mr. Teets:\nAs you know, that certain letter agreement by and between Red Mountain Capital Partners LLC, a Delaware limited liability company\n(“Red Mountain”) and Air Transport Services Group, Inc., a Delaware corporation (formerly ABX Holdings, Inc., “ATSG”), dated February 6, 2008,\nterminated automatically pursuant to its terms on December 31, 2008. In response to Red Mountain’s renewed request, ATSG has agreed to and\nexpects to deliver to Red Mountain, following the execution and delivery of this letter agreement by Red Mountain, certain information about its\nproperties, employees, finances, businesses and operations (including monthly financial information and all information and materials provided or\nmade available to the full board of directors of ATSG (the “Board of Directors”) or otherwise to a majority of the members of the Board of\nDirectors) that is currently available or becomes available during the duration of this letter agreement; provided, however, that nothing in this letter\nagreement obligates ATSG to disclose any information if such disclosure would be unlawful or result in a breach by ATSG or one of its subsidiaries\nof a confidentiality agreement with a third party.\nAll information about ATSG or any third party that is furnished by ATSG or its Representatives (as defined below) to Red Mountain on\nor after the date hereof, and regardless of the manner in which it is furnished, is referred to in this letter agreement as “Proprietary Information.”\nProprietary Information shall not include, however, information which (i) is or becomes generally available to the public other than as a result of a\ndisclosure by Red Mountain, the Affiliates (as defined below) or any of their respective Representatives in violation of this letter agreement; (ii) was\navailable to Red Mountain on a nonconfidential basis prior to its disclosure by ATSG or its Representatives; (iii) becomes available to Red Mountain\non a nonconfidential basis from a person other than ATSG or its Representatives who is not otherwise bound by a confidentiality agreement with\nATSG or any or its Representatives, or is otherwise not under an obligation to ATSG or any of its Representatives not to transmit the information to\nRed Mountain; or (iv) was independently developed by Red Mountain without reference to or use of the Proprietary Information. For purposes of\nthis letter agreement, (i) “Affiliates” shall mean, collectively, Red Mountain Capital Partners II, L.P., a Delaware limited partnership, Red Mountain\nCapital Partners III, L.P., a Delaware limited partnership, RMCP GP LLC, a Delaware limited liability company, Red Mountain Capital\nManagement, Inc., a Delaware corporation, and Willem Mesdag, a natural person; (ii) “Representative” shall mean, as to any person, its directors,\nofficers, employees, agents and advisors (including, without limitation, financial advisors, attorneys and accountants); and (iii) “person” shall be\nbroadly interpreted to include, without limitation, any corporation, company, partnership, other entity or individual.\nSubject to the immediately succeeding paragraph, unless otherwise agreed to in writing by ATSG, Red Mountain shall, (i) except as\nrequired by law, keep all Proprietary Information confidential and not disclose or reveal any Proprietary Information to any person (other than to its\nAffiliates, Representatives and Representatives of the Affiliates who have a need to know such information for purposes of assisting in Red\nMountain’s evaluation of ATSG, provided that each such Affiliate and Representative shall keep confidential all Proprietary Information that is so\ndisclosed or revealed to him or her in accordance with Red Mountain’s confidentiality obligations hereunder with respect to such Proprietary\nInformation); (ii) not use Proprietary Information for any purpose other than in connection with the evaluation of ATSG; and (iii) except as required\nby law or legal process, not disclose to any person the fact that Proprietary Information has been disclosed to Red Mountain; provided that, for the\navoidance of doubt, the disclosure of the existence of this letter agreement and the filing of this letter agreement as an exhibit to any Schedule 13D\nor amendment thereto shall not be deemed to be a breach of the foregoing clause (iii). The obligations of Red Mountain contained in this paragraph\nto keep Proprietary Information confidential shall survive any termination or expiration of this agreement for a period of nine months from and after\nthe termination or expiration of this agreement.\nIn the event that Red Mountain or any Affiliate is requested pursuant to, or required by, applicable law or regulation (including, without\nlimitation, any rule, regulation or policy statement of any national securities exchange, market or automated quotation system on which any of Red\nMountain’s securities are listed or quoted) or by legal process to disclose any Proprietary Information, Red Mountain shall provide ATSG with\nprompt notice of such request or requirement in order to enable ATSG (i) to seek an appropriate protective order or other remedy, (ii) to consult with\nRed Mountain with respect to ATSG’s taking steps to resist or narrow the scope of such request or legal process or (iii) to waive compliance, in\nwhole or in part, with the terms of this letter agreement. In the event that such protective order or other remedy is not timely sought or obtained, or\nATSG waives compliance, in whole or in part, with the terms of this letter agreement, Red Mountain shall use commercially reasonable efforts to\ndisclose only that portion of the Proprietary Information which is legally required to be disclosed and to ensure that all Proprietary Information that\nis so disclosed will be accorded confidential treatment. In the event that Red Mountain shall have complied, in all material respects, with the\nprovisions of this paragraph, such disclosure may be made by Red Mountain without any liability hereunder.\nFor a period commencing with the date of this letter agreement and ending on the later to occur of December 31, 2009, or the date upon\nwhich no persons affiliated with Red\n-2-\nMountain are serving on the Board of Directors, neither Red Mountain nor its Affiliates nor any other person affiliated with Red Mountain shall,\nwithout the prior written consent of ATSG or the Board of Directors, directly or indirectly:\n(a) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, (i) any additional common stock or\ndirect or indirect rights to acquire any common stock of ATSG or any subsidiary thereof, or of any successor to or person in control of ATSG\nsuch that Red Mountain, the Affiliates and any other person affiliated with Red Mountain, collectively, beneficially own, directly or indirectly,\nfor purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Rule 13d-3 thereunder (or any\ncomparable or successor law or regulation) in excess of 14.9% of the amount of the issued and outstanding common stock of ATSG, or (ii) any\nassets of ATSG or any subsidiary or division thereof or of any such successor or controlling person;\n(b) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as such terms are used in the rules of\nthe Securities and Exchange Commission), or seek to advise or influence any person or entity with respect to the voting of any voting\nsecurities of ATSG;\n(c) nominate or seek to nominate, directly or indirectly, any person to the Board of Directors;\n(d) make any public announcement with respect to, or submit a proposal for, or offer of (with or without conditions) any extraordinary\ntransaction involving ATSG or any of its securities or assets;\n(e) form, join or in any way participate in a “group” as defined in Section 13(d)(3) of the Exchange Act in connection with any of the\nforegoing;\n(f) otherwise act or seek to control or influence the Board of Directors or the management or policies of ATSG;\n(g) take any action that could reasonably be expected to require ATSG to make a public announcement regarding the possibility of any of\nthe events described in clauses (a) through (e) above; or\n(h) request ATSG or any of its Representatives, directly or indirectly, to amend or waive any provision of this paragraph.\nThe foregoing paragraph is sometimes referenced in this letter agreement as the “standstill provision.” For the avoidance of doubt, if any person\naffiliated with Red Mountain serves on the Board of Directors, the standstill provisions are not intended to be construed to apply to actions taken by\nsuch person in his capacity as a member of the Board of Directors.\nTo the extent that any Proprietary Information may include material subject to the attorney-client privilege, work product doctrine or any\nother applicable privilege concerning\n-3-\npending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest\nwith respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall\nnot, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product\ndoctrine or other applicable privilege. All Proprietary Information provided by ATSG that is entitled to protection under the attorney-client privilege,\nwork product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this letter agreement, and under\nthe joint defense doctrine. Nothing in this letter agreement obligates ATSG to reveal material subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege.\nRed Mountain acknowledges that neither ATSG nor any of its Representatives makes any express or implied representation or warranty\nas to the accuracy or completeness of any Proprietary Information, and Red Mountain agrees that none of such persons shall have any liability to\nRed Mountain or any of its Affiliates or Representatives relating to or arising from the use of any Proprietary Information.\nIn the event that ATSG, in its sole discretion, requests, Red Mountain shall, upon ATSG’s written request, promptly deliver to ATSG or\ndestroy (provided that any such destruction shall be certified by Red Mountain) all Proprietary Information and all copies, reproductions, summaries,\nanalyses or extracts thereof or based thereon (whether in hard-copy form or on intangible media, such as electronic mail or computer files) in Red\nMountain’s possession or in the possession of any Representative of Red Mountain or any Affiliate.\nRed Mountain is aware of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any\nperson who has received material, non-public information from the issuer of such securities and on the communication of such information to any\nother person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\nWithout prejudice to the rights and remedies otherwise available to either party hereto, ATSG shall be entitled to equitable relief by way\nof injunction or otherwise if Red Mountain or any of the Affiliates breaches or threatens to breach any of the provisions of this letter agreement.\nNo failure or delay by any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall\nany single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\nThis letter agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without giving effect to its\nprinciples or rules regarding conflicts of laws, other than such principles directing application of Ohio law. Each party hereby consents to the\ninstitution and resolution of any action or proceeding of any kind or nature with respect to or arising out of this agreement brought by any party\nhereto in the federal or state courts located within the State of Ohio.\n-4-\nThis letter agreement contains the entire agreement between the parties hereto concerning confidentiality of the Proprietary Information,\nand no modification of this letter agreement or waiver of the terms and conditions hereof shall be binding upon any party hereto, unless approved in\nwriting by each such party.\nThis letter agreement shall terminate automatically on the later to occur of December 31, 2009, or the date upon which no persons\naffiliated with Red Mountain are serving on the Board of Directors (or on such later date agreed upon in writing by the parties); provided that Red\nMountain may, in its sole discretion, terminate this letter agreement (including the standstill provision) by delivering written notice of such\ntermination to ATSG at any time after the approval by the Board of Directors of:\n(i) any sale of more than 20% of the assets of ATSG and its subsidiaries, taken as a whole;\n(ii) the beneficial ownership (as defined by Rule 13d-3 under the Exchange Act) by any person of more than 20% of any class of\noutstanding equity securities of ATSG, including any equity issuance, tender offer, exchange offer or other transaction or series of\ntransactions that, if consummated, would result in any person beneficially owning more than 20% of any class of outstanding\nequity securities of ATSG; or\n(iii) any merger, consolidation or other business combination involving ATSG or any of its subsidiaries and a third party.\nIn addition, if the Board of Directors undertakes a formal process to solicit proposals with respect to any of the foregoing or, with respect to\nunsolicited proposals, determines that any proposal relating to any of the foregoing is reasonably likely to be approved, ATSG shall notify Red\nMountain that subparagraph (h) of the standstill provision has been waived by ATSG.\nFor the avoidance of doubt, neither Red Mountain nor any other person shall have any obligation hereunder (and Red Mountain shall not\nbe prohibited by this letter agreement from taking, directly and indirectly, any or all of the actions described in subparagraphs (a) through (h) of the\nstandstill provision) from and after the termination of this letter agreement.\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned the duplicate copy of this letter agreement\nenclosed herewith.\n[THE REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]\n-5-\nVery truly yours,\nAIR TRANSPORT SERVICES GROUP, INC.\nBy: /s/ W. Joseph Payne\nW. Joseph Payne\nSr. Vice President\nCorporate General Counsel & Secretary\nACCEPTED AND AGREED as of the date first written above:\nRED MOUNTAIN CAPITAL PARTNERS LLC\nBy: /s/ J. Christopher Teets\nJ. Christopher Teets\n-6-
+82b263d025fddef5a8048b34eed91942.pdf	effective_date jurisdiction party term	EX-10.4 5 dex104.htm EXECUTIVE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT\nExhibit 10.4\nEXECUTIVE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT\nTHIS EXECUTIVE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT (the “Agreement”) is entered into as of\n, 2009 (the “Effective Date”), between The Hershey Company, a Delaware corporation together with its subsidiaries and affiliates and its\nand their respective successors and assigns (“Employer” or “Company”), and the undersigned officer of Employer (“Executive”).\nWHEREAS, Executive currently serves, or is being hired or promoted to serve, as an officer of the Company subject to election or\nappointment by the Company’s Board of Directors and eligible for participation in the performance stock unit (“PSU”) program, the restricted stock\nunit (“RSU”) program and in other equity grants and future cycles under the Company’s Equity and Incentive Compensation Program (“E-grade\nOfficer”).\nWHEREAS, Employer possesses certain valuable confidential, proprietary and/or trade secret information (collectively, “Confidential\nInformation,” as further defined below) that gives Employer a competitive advantage.\nWHEREAS, Employer has developed and maintained, at substantial expense and over a considerable period of time, relationships with\ncustomers, suppliers, agents, licensees, licensors and others that likewise give Employer a competitive advantage (“Business Relationships”).\nWHEREAS, as a result of Executive’s past, future, and/or continued employment as an E-grade Officer, Executive has been and/or will be\nand/or will continue to be given access to, and will assist in, the development and maintenance of Employer’s Confidential Information and Business\nRelationships, and it is the parties’ intent to continue to safeguard such Confidential Information and Business Relationships both during and after\nthe term of Executive’s employment with Employer.\nWHEREAS, Employer’s reputation and present and future competitive position are dependent upon Employer’s ability to protect its interests\nin such Confidential Information and Business Relationships.\nNOW, THEREFORE, in consideration of (i) Employer employing Executive as an E-grade Officer, (ii) Employer providing and continuing to\nprovide Executive access to such Confidential Information and Business Relationships, (iii) Employer making PSU awards, RSU awards and other\nequity grants to Executive under the next cycle and all future cycles for which Executive is eligible, (iv) if applicable, Employer permitting\nExecutive to participate in and be eligible to receive amounts in the future under defined benefit or defined contribution supplemental executive\nretirement plans (DB SERP or DC SERP, as applicable), and/or (v) other good and valuable consideration, the sufficiency and receipt of which are\nhereby acknowledged, Employer and Executive agree as follows:\n1. Non-Disclosure of Confidential Information. Executive acknowledges that due to the nature of his/her employment and the position of trust\nthat he/she holds or will hold with Employer, he/she will have special access to, learn, be provided with, and in some cases will prepare and create\nfor Employer, trade secrets and other confidential and proprietary information relating to Employer’s business, including, but not limited to,\ninformation about Employer’s manufacturing processes; manuals, recipes and ingredient percentages; engineering drawings; product and process\nresearch and development; new product information; cost information; supplier data; strategic business information; information related to\nEmployer’s legal strategies or legal advice rendered to Employer; marketing, financial and business development information, plans, forecasts,\nreports and budgets; customer information; new product strategies, plans and project activities; and acquisition and divestiture strategies, plans and\nproject activities (collectively, “Confidential Information”). Executive acknowledges and agrees that Confidential Information, whether or not in\nwritten form, is the exclusive property of Employer, that it has been and will continue to be of critical importance to the business of Employer, and\nthat the disclosure of it to, or use of it by, competitors and others will cause Employer substantial and irreparable harm. Accordingly, Executive will\nnot, either during his/her employment or at any time after the termination (whether voluntary or involuntary, and regardless of reason) of such\nemployment with Employer, use, or disclose any Confidential Information relating to the business of Employer which is not generally available to\nthe public. Notwithstanding the foregoing provisions of this Paragraph 1, Executive may disclose or use any such information (i) when such\ndisclosure or use may be required or appropriate in the good faith judgment of Executive in the course of performing his/her duties to Employer and\nin accordance with Employer policies and procedures, (ii) when required by a court of law, by any governmental agency having supervisory\nauthority over Executive or the business of Employer, or by any administrative or legislative body (including a committee thereof) with apparent\njurisdiction, or (iii) with the prior written consent of Employer’s Chief Executive Officer (“CEO”) or Board of Directors (“Board”) (provided that, if\nExecutive is CEO, such consent must be by the Board). Notwithstanding anything herein to the contrary, Executive understands and agrees that\nhis/her obligations under this Agreement shall be in addition to, rather than in lieu of, any obligations Executive may have under any applicable\nstatute or at common law.\n2. Non-Competition. Executive acknowledges that Employer is engaged, domestically and worldwide, in the business of developing,\nproducing, marketing, selling and distributing chocolate, confectionery, confectionery-related snack and chocolate-related products (“Employer’s\nBusiness”). Executive acknowledges that due to the nature of his/her employment with Employer, he/she has and will have special access to, contact\nwith, and Confidential Information about, Employer’s Business and Business Relationships. Executive acknowledges that Employer has incurred\nconsiderable expense and invested considerable time and resources in developing its Confidential Information and Business Relationships, and that\nsuch Confidential Information and Business Relationships are critical to the success of Employer’s Business. Accordingly, both (i) during the term of\nhis/her employment with Employer, and (ii) for a period of twelve (12) months following the termination of his/her employment (whether voluntary\nor involuntary, and regardless of reason), Executive, except in the performance of his/her duties to Employer, shall not, in any geographic area where\nEmployer conducts business or where Employer’s products are sold, without the prior written consent of Employer’s Chief People Officer, CEO and\nthe Chair of the Compensation and Executive Organization Committee of Employer’s Board of Directors (provided that, if Executive is CEO, such\nconsent must be by the\nA-2\nBoard of Directors), directly or indirectly serve or act in a consulting, executive or managerial capacity, or engage in oversight of any person who\nserves or acts in a consulting, executive or managerial capacity, as an officer, director, employee, consultant, advisor, independent contractor, agent\nor representative, for the domestic or worldwide chocolate, confectionery, confectionery-related snack or chocolate-related businesses of any person\nor entity that is in competition with any of the aspects of Employer’s Business. For purposes of clarification, Executive will not be deemed to be\ninvolved in a business in competition with Employer’s Business, and accordingly this paragraph 2 will not be violated, by the Executive\n(A) providing services to a subsidiary, division or unit of an entity (a “parent company”) that engages, directly or indirectly, in any competitive\nbusiness described above, so long as Executive and the subsidiary, division or unit to which he/she is providing services do not engage in any such\ncompetitive business, or (B) serving in a consulting, executive or managerial capacity of a parent company that engages, directly or indirectly, in any\ncompetitive business described above, so long as the gross revenues from such competitive businesses constituted less than 10% of consolidated\nannual gross revenues for the parent company’s most recently completed fiscal year.\n3. Non-Solicitation; Non-Disparagement. Both (i) during the term of his/her employment by Employer, and (ii) for a period of twelve\n(12) months following the termination of his/her employment (whether voluntary or involuntary, and regardless of reason), Executive, except in the\nperformance of his/her duties to Employer, shall not directly or indirectly (including as an officer, director, employee, consultant, advisor, agent or\nrepresentative), for himself/herself or on behalf of any other person or entity:\n(a) for any purpose that is in competition with any of the aspects of Employer’s Business, solicit, take away or engage, or participate in\nsoliciting, taking away or engaging, any customers, suppliers, agents, licensees or licensors of Employer with whom Executive had contact while\nemployed by Employer, or about whom Employer had access to confidential information as a result of Executive’s employment by Employer; or\n(b) knowingly recruit or solicit, or participate in recruiting or soliciting, any of Employer’s employees, or communicate, except in the\ncase of a reference described in the last sentence of this paragraph, with any other person or entity about the nature, quality or quantity of work, or\nany special knowledge or personal characteristics, of any person employed by Employer. If Executive should wish to discuss possible employment\nwith any then-current employee of Employer during the period set forth above, Executive may request written permission to do so from the most\nsenior human resources officer of Employer who may, in his/her discretion, grant a written exception to the no solicitation covenant set forth\nimmediately above; provided, however, Executive shall not discuss any such employment possibility with any such employee prior to such\npermission. Notwithstanding the foregoing, the provisions of this paragraph shall not be violated by (i) general advertising or solicitation not\nspecifically targeted at employees of Employer, (ii) Executive serving as a reference, upon request, for any employee of Employer, or (iii) actions\ntaken by any person or entity with which Executive is associated if Executive is not personally involved in any manner in the matter and has not\nidentified such employee for recruiting or solicitation.\nA-3\nIn addition, both (i) during the term of his/her employment by Employer, and (ii) following the termination of his/her employment (whether\nvoluntary or involuntary, and regardless of reason), Executive shall not knowingly, willfully and with intent to harm Employer make any public\nstatements that disparage Employer, its employees, officers, directors, products or services, provided that, notwithstanding the foregoing, truthful\nstatements made in the course of sworn testimony in administrative, judicial or arbitral proceedings (including, without limitation, depositions in\nconnection with such proceedings), normal competitive-type statements, and statements made in the good faith performance of the Executive’s\nduties to Employer shall not constitute a violation of this clause.\n4. Violation of Paragraphs 1, 2 or 3. Executive acknowledges Employer’s valid and protectable interest in aligning the long-term interests of\nvalued employees with those of Employer by providing Executive an ownership interest in the Employer through the PSU program and other equity\nincentive programs and otherwise, and likewise acknowledges Employer’s valid and protectable interest in preventing former employees whose\ninterests become adverse to the Employer from maintaining an ownership or other interest in the Employer. Accordingly, Executive agrees that if\nhe/she violates any of paragraphs 1, 2 or 3 above (the date on which any such violation occurs is the “Date of Breach”), Employer may, in its sole\ndiscretion, in addition to any other remedies available to it at law (including without limitation monetary damages) or in equity (including without\nlimitation temporary, preliminary and/or permanent injunctive relief):\n(a) cancel any unvested portion of any and all PSU and RSU awards;\n(b) cancel any unexercised stock options;\n(c) require Executive to pay Employer the full value of any benefits received by Executive during the period twelve (12) months prior to\nExecutive’s last date of employment through the Date of Breach, from (i) PSUs, (ii) RSUs, and (iii) the exercise of any options;\n(d) cancel any unpaid benefits of Executive under the DB SERP and DC SERP; and/or\n(e) require Executive to pay Employer the full value of any benefits already received by Executive under the DB SERP or DC SERP\n(including for this purpose amounts that would have been received but for Executive’s election to defer such amounts under the Deferred\nCompensation Plan).\nMoreover, if Employer seeks temporary, preliminary and/or permanent injunctive relief for a violation or threatened violation of paragraphs 1,\n2 or 3 above, Executive hereby expressly consents to the entry of such relief against him/her by a court of competent jurisdiction. Executive further\nagrees that in the event he/she later believes that any provision hereof is not enforceable for any reason, Executive will not act in violation of any\nsuch provision until such time as a court of competent jurisdiction enters a final judgment with respect to enforceability.\n5. Entire Agreement. Executive acknowledges and agrees that (a) this Agreement includes the entire agreement and understanding between the\nparties with respect to the subject matter hereof, and may be amended, modified or changed only by a written instrument executed\nA-4\nby Executive and Employer, and (b) violation of paragraphs 1, 2 or 3 hereof may cause Executive to lose the right to receive, or may obligate\nExecutive to repay to Employer, amounts awarded or accrued under various plans and programs of Employer as described herein and that, to the\nextent any effect of this Agreement upon such amounts may be inconsistent with the terms and conditions of such plans or programs as in effect on\nthe date hereof (including without limitation as set forth in the Long Term Incentive Program Participation Agreement to which Executive may be a\nparty), this Agreement shall constitute an amendment of such terms and conditions and Executive’s consent thereto. No provision of this Agreement\nmay be waived except by a writing executed and delivered by the party sought to be charged. Any such written waiver will be effective only with\nrespect to the event or circumstance described therein and not with respect to any other event or circumstance, unless such waiver expressly provides\nto the contrary.\n6. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without\nreference to principles of conflict of laws.\n(b) All notices and other communications hereunder shall be in writing; shall be delivered by hand delivery to the other party or mailed\nby registered or certified mail, return receipt requested, postage prepaid or by a nationally recognized courier service such as Federal Express; shall\nbe deemed delivered upon actual receipt; and shall be addressed as follows:\nIf to Employer:\nThe Hershey Company\n100 Crystal A Drive\nHershey, Pennsylvania 17033\nATTN: Chief People Officer\nIf to Executive:\nAt the address set forth with the signature below,\nor to such other address as either party shall have furnished to the other in writing in accordance herewith.\n(c) Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective\nto the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or\nunenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction.\nIN WITNESS WHEREOF, each of the parties hereto has duly executed this Agreement as of the date first set forth above.\nA-5\nEXECUTIVE:\nPrint Name and Address:\nEMPLOYER:\nThe Hershey Company, a Delaware corporation\nBy:\nBurton H. Snyder\nSenior Vice President, General Counsel and Secretary\nA-6	EX-10.4 5 dex104.htm EXECUTIVE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT\nExhibit 10.4\nEXECUTIVE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT\nTHIS EXECUTIVE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT (the “Agreement”) is entered into as of\n_, 2009 (the “Effective Date”), between The Hershey Company, a Delaware corporation together with its subsidiaries and affiliates and its\nand their respective successors and assigns (“Employer” or “Company”), and the undersigned officer of Employer (“Executive”).\nWHEREAS, Executive currently serves, or is being hired or promoted to serve, as an officer of the Company subject to election or\nappointment by the Company’s Board of Directors and eligible for participation in the performance stock unit (“PSU”) program, the restricted stock\nunit (“RSU”) program and in other equity grants and future cycles under the Company’s Equity and Incentive Compensation Program (“E-grade\nOfficer”).\nWHEREAS, Employer possesses certain valuable confidential, proprietary and/or trade secret information (collectively, “Confidential\nInformation,” as further defined below) that gives Employer a competitive advantage.\nWHEREAS, Employer has developed and maintained, at substantial expense and over a considerable period of time, relationships with\ncustomers, suppliers, agents, licensees, licensors and others that likewise give Employer a competitive advantage (“Business Relationships™).\nWHEREAS, as a result of Executive’s past, future, and/or continued employment as an E-grade Officer, Executive has been and/or will be\nand/or will continue to be given access to, and will assist in, the development and maintenance of Employer’s Confidential Information and Business\nRelationships, and it is the parties’ intent to continue to safeguard such Confidential Information and Business Relationships both during and after\nthe term of Executive’s employment with Employer.\nWHEREAS, Employer’s reputation and present and future competitive position are dependent upon Employer’s ability to protect its interests\nin such Confidential Information and Business Relationships.\nNOW, THEREFORE, in consideration of (i) Employer employing Executive as an E-grade Officer, (ii) Employer providing and continuing to\nprovide Executive access to such Confidential Information and Business Relationships, (iii) Employer making PSU awards, RSU awards and other\nequity grants to Executive under the next cycle and all future cycles for which Executive is eligible, (iv) if applicable, Employer permitting\nExecutive to participate in and be eligible to receive amounts in the future under defined benefit or defined contribution supplemental executive\nretirement plans (DB SERP or DC SERP, as applicable), and/or (v) other good and valuable consideration, the sufficiency and receipt of which are\nhereby acknowledged, Employer and Executive agree as follows:\n1. Non-Disclosure of Confidential Information. Executive acknowledges that due to the nature of his/her employment and the position of trust\nthat he/she holds or will hold with Employer, he/she will have special access to, learn, be provided with, and in some cases will prepare and create\nfor Employer, trade secrets and other confidential and proprietary information relating to Employer’s business, including, but not limited to,\ninformation about Employer’s manufacturing processes; manuals, recipes and ingredient percentages; engineering drawings; product and process\nresearch and development; new product information; cost information; supplier data; strategic business information; information related to\nEmployer’s legal strategies or legal advice rendered to Employer; marketing, financial and business development information, plans, forecasts,\nreports and budgets; customer information; new product strategies, plans and project activities; and acquisition and divestiture strategies, plans and\nproject activities (collectively, “Confidential Information). Executive acknowledges and agrees that Confidential Information, whether or not in\nwritten form, is the exclusive property of Employer, that it has been and will continue to be of critical importance to the business of Employer, and\nthat the disclosure of it to, or use of it by, competitors and others will cause Employer substantial and irreparable harm. Accordingly, Executive will\nnot, either during his/her employment or at any time after the termination (whether voluntary or involuntary, and regardless of reason) of such\nemployment with Employer, use, or disclose any Confidential Information relating to the business of Employer which is not generally available to\nthe public. Notwithstanding the foregoing provisions of this Paragraph 1, Executive may disclose or use any such information (i) when such\ndisclosure or use may be required or appropriate in the good faith judgment of Executive in the course of performing his/her duties to Employer and\nin accordance with Employer policies and procedures, (ii) when required by a court of law, by any governmental agency having supervisory\nauthority over Executive or the business of Employer, or by any administrative or legislative body (including a committee thereof) with apparent\njurisdiction, or (iii) with the prior written consent of Employer’s Chief Executive Officer (“CEO”) or Board of Directors (“Board”) (provided that, if\nExecutive is CEO, such consent must be by the Board). Notwithstanding anything herein to the contrary, Executive understands and agrees that\nhis/her obligations under this Agreement shall be in addition to, rather than in lieu of, any obligations Executive may have under any applicable\nstatute or at common law.\n2. Non-Competition. Executive acknowledges that Employer is engaged, domestically and worldwide, in the business of developing,\nproducing, marketing, selling and distributing chocolate, confectionery, confectionery-related snack and chocolate-related products (“Employer’s\nBusiness”). Executive acknowledges that due to the nature of his/her employment with Employer, he/she has and will have special access to, contact\nwith, and Confidential Information about, Employer’s Business and Business Relationships. Executive acknowledges that Employer has incurred\nconsiderable expense and invested considerable time and resources in developing its Confidential Information and Business Relationships, and that\nsuch Confidential Information and Business Relationships are critical to the success of Employer’s Business. Accordingly, both (i) during the term of\nhis/her employment with Employer, and (ii) for a period of twelve (12) months following the termination of his/her employment (whether voluntary\nor involuntary, and regardless of reason), Executive, except in the performance of his/her duties to Employer, shall not, in any geographic area where\nEmployer conducts business or where Employer’s products are sold, without the prior written consent of Employer’s Chief People Officer, CEO and\nthe Chair of the Compensation and Executive Organization Committee of Employer’s Board of Directors (provided that, if Executive is CEO, such\nconsent must be by the\nA-2\nBoard of Directors), directly or indirectly serve or act in a consulting, executive or managerial capacity, or engage in oversight of any person who\nserves or acts in a consulting, executive or managerial capacity, as an officer, director, employee, consultant, advisor, independent contractor, agent\nor representative, for the domestic or worldwide chocolate, confectionery, confectionery-related snack or chocolate-related businesses of any person\nor entity that is in competition with any of the aspects of Employer’s Business. For purposes of clarification, Executive will not be deemed to be\ninvolved in a business in competition with Employer’s Business, and accordingly this paragraph 2 will not be violated, by the Executive\n(A) providing services to a subsidiary, division or unit of an entity (a “parent company”) that engages, directly or indirectly, in any competitive\nbusiness described above, so long as Executive and the subsidiary, division or unit to which he/she is providing services do not engage in any such\ncompetitive business, or (B) serving in a consulting, executive or managerial capacity of a parent company that engages, directly or indirectly, in any\ncompetitive business described above, so long as the gross revenues from such competitive businesses constituted less than 10% of consolidated\nannual gross revenues for the parent company’s most recently completed fiscal year.\n3. Non-Solicitation; Non-Disparagement. Both (i) during the term of his/her employment by Employer, and (ii) for a period of twelve\n(12) months following the termination of his/her employment (whether voluntary or involuntary, and regardless of reason), Executive, except in the\nperformance of his/her duties to Employer, shall not directly or indirectly (including as an officer, director, employee, consultant, advisor, agent or\nrepresentative), for himself/herself or on behalf of any other person or entity:\n(a) for any purpose that is in competition with any of the aspects of Employer’s Business, solicit, take away or engage, or participate in\nsoliciting, taking away or engaging, any customers, suppliers, agents, licensees or licensors of Employer with whom Executive had contact while\nemployed by Employer, or about whom Employer had access to confidential information as a result of Executive’s employment by Employer; or\n(b) knowingly recruit or solicit, or participate in recruiting or soliciting, any of Employer’s employees, or communicate, except in the\ncase of a reference described in the last sentence of this paragraph, with any other person or entity about the nature, quality or quantity of work, or\nany special knowledge or personal characteristics, of any person employed by Employer. If Executive should wish to discuss possible employment\nwith any then-current employee of Employer during the period set forth above, Executive may request written permission to do so from the most\nsenior human resources officer of Employer who may, in his/her discretion, grant a written exception to the no solicitation covenant set forth\nimmediately above; provided, however, Executive shall not discuss any such employment possibility with any such employee prior to such\npermission. Notwithstanding the foregoing, the provisions of this paragraph shall not be violated by (i) general advertising or solicitation not\nspecifically targeted at employees of Employer, (ii) Executive serving as a reference, upon request, for any employee of Employer, or (iii) actions\ntaken by any person or entity with which Executive is associated if Executive is not personally involved in any manner in the matter and has not\nidentified such employee for recruiting or solicitation.\nA-3\nIn addition, both (i) during the term of his/her employment by Employer, and (ii) following the termination of his/her employment (whether\nvoluntary or involuntary, and regardless of reason), Executive shall not knowingly, willfully and with intent to harm Employer make any public\nstatements that disparage Employer, its employees, officers, directors, products or services, provided that, notwithstanding the foregoing, truthful\nstatements made in the course of sworn testimony in administrative, judicial or arbitral proceedings (including, without limitation, depositions in\nconnection with such proceedings), normal competitive-type statements, and statements made in the good faith performance of the Executive’s\nduties to Employer shall not constitute a violation of this clause.\n4. Violation of Paragraphs 1, 2 or 3. Executive acknowledges Employer’s valid and protectable interest in aligning the long-term interests of\nvalued employees with those of Employer by providing Executive an ownership interest in the Employer through the PSU program and other equity\nincentive programs and otherwise, and likewise acknowledges Employer’s valid and protectable interest in preventing former employees whose\ninterests become adverse to the Employer from maintaining an ownership or other interest in the Employer. Accordingly, Executive agrees that if\nhe/she violates any of paragraphs 1, 2 or 3 above (the date on which any such violation occurs is the “Date of Breach”), Employer may, in its sole\ndiscretion, in addition to any other remedies available to it at law (including without limitation monetary damages) or in equity (including without\nlimitation temporary, preliminary and/or permanent injunctive relief):\n(a) cancel any unvested portion of any and all PSU and RSU awards;\n(b) cancel any unexercised stock options;\n(c) require Executive to pay Employer the full value of any benefits received by Executive during the period twelve (12) months prior to\nExecutive’s last date of employment through the Date of Breach, from (i) PSUs, (ii) RSUs, and (iii) the exercise of any options;\n(d) cancel any unpaid benefits of Executive under the DB SERP and DC SERP; and/or\n(e) require Executive to pay Employer the full value of any benefits already received by Executive under the DB SERP or DC SERP\n(including for this purpose amounts that would have been received but for Executive’s election to defer such amounts under the Deferred\nCompensation Plan).\nMoreover, if Employer seeks temporary, preliminary and/or permanent injunctive relief for a violation or threatened violation of paragraphs 1,\n2 or 3 above, Executive hereby expressly consents to the entry of such relief against him/her by a court of competent jurisdiction. Executive further\nagrees that in the event he/she later believes that any provision hereof is not enforceable for any reason, Executive will not act in violation of any\nsuch provision until such time as a court of competent jurisdiction enters a final judgment with respect to enforceability.\n5. Entire Agreement. Executive acknowledges and agrees that (a) this Agreement includes the entire agreement and understanding between the\nparties with respect to the subject matter hereof, and may be amended, modified or changed only by a written instrument executed\n \nA4\nby Executive and Employer, and (b) violation of paragraphs 1, 2 or 3 hereof may cause Executive to lose the right to receive, or may obligate\nExecutive to repay to Employer, amounts awarded or accrued under various plans and programs of Employer as described herein and that, to the\nextent any effect of this Agreement upon such amounts may be inconsistent with the terms and conditions of such plans or programs as in effect on\nthe date hereof (including without limitation as set forth in the Long Term Incentive Program Participation Agreement to which Executive may be a\nparty), this Agreement shall constitute an amendment of such terms and conditions and Executive’s consent thereto. No provision of this Agreement\nmay be waived except by a writing executed and delivered by the party sought to be charged. Any such written waiver will be effective only with\nrespect to the event or circumstance described therein and not with respect to any other event or circumstance, unless such waiver expressly provides\nto the contrary.\n6. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without\nreference to principles of conflict of laws.\n(b) All notices and other communications hereunder shall be in writing; shall be delivered by hand delivery to the other party or mailed\nby registered or certified mail, return receipt requested, postage prepaid or by a nationally recognized courier service such as Federal Express; shall\nbe deemed delivered upon actual receipt; and shall be addressed as follows:\nIf to Employer:\nThe Hershey Company\n100 Crystal A Drive\nHershey, Pennsylvania 17033\nATTN: Chief People Officer\nIf to Executive:\nAt the address set forth with the signature below,\nor to such other address as either party shall have furnished to the other in writing in accordance herewith.\n(c) Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective\nto the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or\nunenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction.\nIN WITNESS WHEREOF, each of the parties hereto has duly executed this Agreement as of the date first set forth above.\nA-5\nA-6\nEXECUTIVE:\nPrint Name and Address:\nEMPLOYER:\nThe Hershey Company, a Delaware corporation\nBy:\nBurton H. Snyder\nSenior Vice President, General Counsel and Secretary	EX-10.4 5 dex104.htm EXECUTIVE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT\nExhibit 10.4\nEXECUTIVE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT\nTHIS EXECUTIVE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT (the "Agreement") is entered into as of\n2009 (the "Effective Date"), between The Hershey Company, a Delaware corporation together with its subsidiaries and affiliates and its\nand their respective successors and assigns ("Employer" or "Company"), and the undersigned officer of Employer ("Executive").\nWHEREAS, Executive currently serves, or is being hired or promoted to serve, as an officer of the Company subject to election or\nappointment by the Company's Board of Directors and eligible for participation in the performance stock unit ("PSU") program, the restricted stock\nunit ("RSU") program and in other equity grants and future cycles under the Company's Equity and Incentive Compensation Program ("E-grade\nOfficer").\nWHEREAS, Employer possesses certain valuable confidential, proprietary and/or trade secret information (collectively, "Confidential\nInformation," as further defined below) that gives Employer a competitive advantage.\nWHEREAS, Employer has developed and maintained, at substantial expense and over a considerable period of time, relationships with\ncustomers, suppliers, agents, licensees, licensors and others that likewise give Employer a competitive advantage ("Business Relationships").\nWHEREAS, as a result of Executive's past, future, and/or continued employment as an E-grade Officer, Executive has been and/or will be\nand/or will continue to be given access to, and will assist in, the development and maintenance of Employer's Confidential Information and Business\nRelationships, and it is the parties' intent to continue to safeguard such Confidential Information and Business Relationships both during and after\nthe term of Executive's employment with Employer.\nWHEREAS, Employer's reputation and present and future competitive position are dependent upon Employer's ability to protect its interests\nin such Confidential Information and Business Relationships.\nNOW, THEREFORE, in consideration of (i) Employer employing Executive as an E-grade Officer, (ii) Employer providing and continuing to\nprovide Executive access to such Confidential Information and Business Relationships, (iii) Employer making PSU awards, RSU awards and other\nequity grants to Executive under the next cycle and all future cycles for which Executive is eligible, (iv) if applicable, Employer permitting\nExecutive to participate in and be eligible to receive amounts in the future under defined benefit or defined contribution supplemental executive\nretirement plans (DB SERP or DC SERP, as applicable), and/or (v) other good and valuable consideration, the sufficiency and receipt of which are\nhereby acknowledged, Employer and Executive agree as follows:\n1. Non-Disclosure of Confidential Information. Executive acknowledges that due to the nature of his/her employment and the position of trust\nthat he/she holds or will hold with Employer, he/she will have special access to, learn, be provided with, and in some cases will prepare and create\nfor Employer, trade secrets and other confidential and proprietary information relating to Employer's business, including, but not limited\nto,\ninformation about Employer's manufacturing processes; manuals, recipes and ingredient percentages; engineering drawings; product and process\nresearch and development; new product information; cost information; supplier data; strategic business information; information related to\nEmployer's legal strategies or legal advice rendered to Employer; marketing, financial and business development information, plans, forecasts,\nreports and budgets; customer information; new product strategies, plans and project activities; and acquisition and divestiture strategies, plans and\nproject activities (collectively, "Confidential Information"). Executive acknowledges and agrees that Confidential Information, whether or not\nin\nwritten form, is the exclusive property of Employer, that it has been and will continue to be of critical importance to the business of Employer, and\nthat the disclosure of it to, or use of it by, competitors and others will cause Employer substantial and irreparable harm. Accordingly, Executive will\nnot, either during his/her employment or at any time after the termination (whether voluntary or involuntary, and regardless of reason) of such\nemployment with Employer, use, or disclose any Confidential Information relating to the business of Employer which is not generally available\nto\nthe public. Notwithstanding the foregoing provisions of this Paragraph 1, Executive may disclose or use any such information (i) when such\ndisclosure or use may be required or appropriate in the good faith judgment of Executive in the course of performing his/her duties to Employer\nand\nin accordance with Employer policies and procedures, (ii) when required by a court of law, by any governmental agency having supervisory\nauthority over Executive or the business of Employer, or by any administrative or legislative body (including a committee thereof) with apparent\njurisdiction, or (iii) with the prior written consent of Employer's Chief Executive Officer ("CEO") or Board of Directors ("Board") (provided\nthat,\nif\nExecutive is CEO, such consent must be by the Board). Notwithstanding anything herein to the contrary, Executive understands and agrees that\nhis/her obligations under this Agreement shall be in addition to, rather than in lieu of, any obligations Executive may have under any applicable\nstatute or at common law.\n2. Non-Competition. Executive acknowledges that Employer is engaged, domestically and worldwide, in the business of developing,\nproducing, marketing, selling and distributing chocolate, confectionery, confectionery-related snack and chocolate-related products ("Employer's\nBusiness"). Executive acknowledges that due to the nature of his/her employment with Employer, he/she has and will have special access to, contact\nwith, and Confidential Information about, Employer's Business and Business Relationships. Executive acknowledges that Employer has incurred\nconsiderable expense and invested considerable time and resources in developing its Confidential Information and Business Relationships, and that\nsuch Confidential Information and Business Relationships are critical to the success of Employer's Business. Accordingly, both (i) during the term of\nhis/her employment with Employer, and (ii) for a period of twelve (12) months following the termination of his/her employment (whether voluntary\nor\ninvoluntary, and regardless of reason), Executive, except in the performance of his/her duties to Employer, shall not, in any geographic area where\nEmployer conducts business or where Employer's products are sold, without the prior written consent of Employer's Chief People Officer, CEO and\nthe Chair of the Compensation and Executive Organization Committee of Employer's Board of Directors (provided that, if Executive is CEO, such\nconsent must be by the\nA-2\nBoard of Directors), directly or indirectly serve or act in a consulting, executive or managerial capacity, or engage in oversight of any person who\nserves or acts in a consulting, executive or managerial capacity, as an officer, director, employee, consultant, advisor, independent contractor, agent\nor representative, for the domestic or worldwide chocolate, confectionery, confectionery-related snack or chocolate-related businesses of any person\nor entity that is in competition with any of the aspects of Employer's Business. For purposes of clarification, Executive will not be deemed to be\ninvolved in a business in competition with Employer's Business, and accordingly this paragraph 2 will not be violated, by the Executive\n(A) providing services to a subsidiary, division or unit of an entity (a "parent company") that engages, directly or indirectly, in any competitive\nbusiness described above, so long as Executive and the subsidiary, division or unit to which he/she is providing services do not engage in any such\ncompetitive business, or (B) serving in a consulting, executive or managerial capacity of a parent company that engages, directly or indirectly, in\nany\ncompetitive business described above, so long as the gross revenues from such competitive businesses constituted less than 10% of consolidated\nannual gross revenues for the parent company's most recently completed fiscal year.\n3. Non-Solicitation; Non-Disparagement. Both (i) during the term of his/her employment by Employer, and (ii) for a period of twelve\n(12) months following the termination of his/her employment (whether voluntary or involuntary, and regardless of reason), Executive, except in the\nperformance of his/her duties to Employer, shall not directly or indirectly (including as an officer, director, employee, consultant, advisor, agent or\nrepresentative), for himself/herself or on behalf of any other person or entity:\n(a) for any purpose that is in competition with any of the aspects of Employer's Business, solicit, take away or engage, or participate\nin\nsoliciting, taking away or engaging, any customers, suppliers, agents, licensees or licensors of Employer with whom Executive had contact while\nemployed by Employer, or about whom Employer had access to confidential information as a result of Executive's employment by Employer; or\n(b) knowingly recruit or solicit, or participate in recruiting or soliciting, any of Employer's employees, or communicate, except in\nthe\ncase of a reference described in the last sentence of this paragraph, with any other person or entity about the nature, quality or quantity of work, or\nany special knowledge or personal characteristics, of any person employed by Employer. If Executive should wish to discuss possible employment\nwith\nany then-current employee of Employer during the period set forth above, Executive may request written permission to do so from the most\nsenior human resources officer of Employer who may, in his/her discretion, grant a written exception to the no solicitation covenant set forth\nimmediately above; provided, however, Executive shall not discuss any such employment possibility with any such employee prior to such\npermission. Notwithstanding the foregoing, the provisions of this paragraph shall not be violated by (i) general advertising or solicitation not\nspecifically targeted at employees of Employer, (ii) Executive serving as a reference, upon request, for any employee of Employer, or (iii) actions\ntaken by any person or entity with which Executive is associated if Executive is not personally involved in any manner in the matter and has not\nidentified such employee for recruiting or solicitation.\nA-3\nIn addition, both (i) during the term of his/her employment by Employer, and (ii) following the termination of his/her employment (whether\nvoluntary or involuntary, and regardless of reason), Executive shall not knowingly, willfully and with intent to harm Employer make any public\nstatements that disparage Employer, its employees, officers, directors, products or services, provided that, notwithstanding the foregoing, truthful\nstatements made in the course of sworn testimony in administrative, judicial or arbitral proceedings (including, without limitation, depositions in\nconnection with such proceedings), normal competitive-type statements, and statements made in the good faith performance of the Executive's\nduties to Employer shall not constitute a violation of this clause.\n4. Violation of Paragraphs 1, 2 or 3. Executive acknowledges Employer's valid and protectable interest in aligning the long-term interests of\nvalued employees with those of Employer by providing Executive an ownership interest in the Employer through the PSU program and other equity\nincentive programs and otherwise, and likewise acknowledges Employer's valid and protectable interest in preventing former employees whose\ninterests become adverse to the Employer from maintaining an ownership or other interest in the Employer. Accordingly, Executive agrees that\nif\nhe/she violates any of paragraphs 1, 2 or 3 above (the date on which any such violation occurs is the "Date of Breach"), Employer may, in its sole\ndiscretion, in addition to any other remedies available to it at law (including without limitation monetary damages) or in equity (including without\nlimitation temporary, preliminary and/or permanent injunctive relief):\n(a) cancel any unvested portion of any and all PSU and RSU awards;\n(b) cancel any unexercised stock options;\n(c) require Executive to pay Employer the full value of any benefits received by Executive during the period twelve (12) months prior to\nExecutive's last date of employment through the Date of Breach, from (i) PSUs, (ii) RSUs, and (iii) the exercise of any options;\n(d) cancel any unpaid benefits of Executive under the DB SERP and DC SERP; and/or\n(e) require Executive to pay Employer the full value of any benefits already received by Executive under the DB SERP or DC SERP\n(including for this purpose amounts that would have been received but for Executive's election to defer such amounts under the Deferred\nCompensation Plan).\nMoreover, if Employer seeks temporary, preliminary and/or permanent injunctive relief for a violation or threatened violation of paragraphs 1,\n2\nor 3 above, Executive hereby expressly consents to the entry of such relief against him/her by a court of competent jurisdiction. Executive further\nagrees that in the event he/she later believes that any provision hereof is not enforceable for any reason, Executive will not act in violation of any\nsuch provision until such time as a court of competent jurisdiction enters a final judgment with respect to enforceability.\n5. Entire Agreement. Executive acknowledges and agrees that (a) this Agreement includes the entire agreement and understanding between the\nparties with respect to the subject matter hereof, and may be amended, modified or changed only by a written instrument executed\nA-4\nby Executive and Employer, and (b) violation of paragraphs 1, 2 or 3 hereof may cause Executive to lose the right to receive, or may obligate\nExecutive to repay to Employer, amounts awarded or accrued under various plans and programs of Employer as described herein and that, to\nthe\nextent any effect of this Agreement upon such amounts may be inconsistent with the terms and conditions of such plans or programs as in effect on\nthe date hereof (including without limitation as set forth in the Long Term Incentive Program Participation Agreement to which Executive may be a\nparty), this Agreement shall constitute an amendment of such terms and conditions and Executive's consent thereto. No provision of this Agreement\nmay be waived except by a writing executed and delivered by the party sought to be charged. Any such written waiver will be effective only with\nrespect to the event or circumstance described therein and not with respect to any other event or circumstance, unless such waiver expressly provides\nto the contrary.\n6. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without\nreference to principles of conflict of laws.\n(b) All notices and other communications hereunder shall be in writing; shall be delivered by hand delivery to the other party or mailed\nby registered or certified mail, return receipt requested, postage prepaid or by a nationally recognized courier service such as Federal Express; shall\nbe deemed delivered upon actual receipt; and shall be addressed as follows:\nIf to Employer:\nThe Hershey Company\n100 Crystal A Drive\nHershey, Pennsylvania 17033\nATTN: Chief People Officer\nIf to Executive:\nAt the address set forth with the signature below,\nor to such other address as either party shall have furnished to the other in writing in accordance herewith.\n(c) Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective\nto\nthe extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or\nunenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction.\nIN\nWITNESS WHEREOF, each of the parties hereto has duly executed this Agreement as of the date first set forth above.\nA-5\nEXECUTIVE:\nPrint Name and Address:\nEMPLOYER:\nThe Hershey Company, a Delaware corporation\nBy:\nBurton H. Snyder\nSenior Vice President, General Counsel and Secretary\nA-6	EX-10.4 5 dex104.htm EXECUTIVE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT\nExhibit 10.4\nEXECUTIVE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT\nTHIS EXECUTIVE CONFIDENTIALITY AND RESTRICTIVE COVENANT AGREEMENT (the “Agreement”) is entered into as of\n, 2009 (the “Effective Date”), between The Hershey Company, a Delaware corporation together with its subsidiaries and affiliates and its\nand their respective successors and assigns (“Employer” or “Company”), and the undersigned officer of Employer (“Executive”).\nWHEREAS, Executive currently serves, or is being hired or promoted to serve, as an officer of the Company subject to election or\nappointment by the Company’s Board of Directors and eligible for participation in the performance stock unit (“PSU”) program, the restricted stock\nunit (“RSU”) program and in other equity grants and future cycles under the Company’s Equity and Incentive Compensation Program (“E-grade\nOfficer”).\nWHEREAS, Employer possesses certain valuable confidential, proprietary and/or trade secret information (collectively, “Confidential\nInformation,” as further defined below) that gives Employer a competitive advantage.\nWHEREAS, Employer has developed and maintained, at substantial expense and over a considerable period of time, relationships with\ncustomers, suppliers, agents, licensees, licensors and others that likewise give Employer a competitive advantage (“Business Relationships”).\nWHEREAS, as a result of Executive’s past, future, and/or continued employment as an E-grade Officer, Executive has been and/or will be\nand/or will continue to be given access to, and will assist in, the development and maintenance of Employer’s Confidential Information and Business\nRelationships, and it is the parties’ intent to continue to safeguard such Confidential Information and Business Relationships both during and after\nthe term of Executive’s employment with Employer.\nWHEREAS, Employer’s reputation and present and future competitive position are dependent upon Employer’s ability to protect its interests\nin such Confidential Information and Business Relationships.\nNOW, THEREFORE, in consideration of (i) Employer employing Executive as an E-grade Officer, (ii) Employer providing and continuing to\nprovide Executive access to such Confidential Information and Business Relationships, (iii) Employer making PSU awards, RSU awards and other\nequity grants to Executive under the next cycle and all future cycles for which Executive is eligible, (iv) if applicable, Employer permitting\nExecutive to participate in and be eligible to receive amounts in the future under defined benefit or defined contribution supplemental executive\nretirement plans (DB SERP or DC SERP, as applicable), and/or (v) other good and valuable consideration, the sufficiency and receipt of which are\nhereby acknowledged, Employer and Executive agree as follows:\n1. Non-Disclosure of Confidential Information. Executive acknowledges that due to the nature of his/her employment and the position of trust\nthat he/she holds or will hold with Employer, he/she will have special access to, learn, be provided with, and in some cases will prepare and create\nfor Employer, trade secrets and other confidential and proprietary information relating to Employer’s business, including, but not limited to,\ninformation about Employer’s manufacturing processes; manuals, recipes and ingredient percentages; engineering drawings; product and process\nresearch and development; new product information; cost information; supplier data; strategic business information; information related to\nEmployer’s legal strategies or legal advice rendered to Employer; marketing, financial and business development information, plans, forecasts,\nreports and budgets; customer information; new product strategies, plans and project activities; and acquisition and divestiture strategies, plans and\nproject activities (collectively, “Confidential Information”). Executive acknowledges and agrees that Confidential Information, whether or not in\nwritten form, is the exclusive property of Employer, that it has been and will continue to be of critical importance to the business of Employer, and\nthat the disclosure of it to, or use of it by, competitors and others will cause Employer substantial and irreparable harm. Accordingly, Executive will\nnot, either during his/her employment or at any time after the termination (whether voluntary or involuntary, and regardless of reason) of such\nemployment with Employer, use, or disclose any Confidential Information relating to the business of Employer which is not generally available to\nthe public. Notwithstanding the foregoing provisions of this Paragraph 1, Executive may disclose or use any such information (i) when such\ndisclosure or use may be required or appropriate in the good faith judgment of Executive in the course of performing his/her duties to Employer and\nin accordance with Employer policies and procedures, (ii) when required by a court of law, by any governmental agency having supervisory\nauthority over Executive or the business of Employer, or by any administrative or legislative body (including a committee thereof) with apparent\njurisdiction, or (iii) with the prior written consent of Employer’s Chief Executive Officer (“CEO”) or Board of Directors (“Board”) (provided that, if\nExecutive is CEO, such consent must be by the Board). Notwithstanding anything herein to the contrary, Executive understands and agrees that\nhis/her obligations under this Agreement shall be in addition to, rather than in lieu of, any obligations Executive may have under any applicable\nstatute or at common law.\n2. Non-Competition. Executive acknowledges that Employer is engaged, domestically and worldwide, in the business of developing,\nproducing, marketing, selling and distributing chocolate, confectionery, confectionery-related snack and chocolate-related products (“Employer’s\nBusiness”). Executive acknowledges that due to the nature of his/her employment with Employer, he/she has and will have special access to, contact\nwith, and Confidential Information about, Employer’s Business and Business Relationships. Executive acknowledges that Employer has incurred\nconsiderable expense and invested considerable time and resources in developing its Confidential Information and Business Relationships, and that\nsuch Confidential Information and Business Relationships are critical to the success of Employer’s Business. Accordingly, both (i) during the term of\nhis/her employment with Employer, and (ii) for a period of twelve (12) months following the termination of his/her employment (whether voluntary\nor involuntary, and regardless of reason), Executive, except in the performance of his/her duties to Employer, shall not, in any geographic area where\nEmployer conducts business or where Employer’s products are sold, without the prior written consent of Employer’s Chief People Officer, CEO and\nthe Chair of the Compensation and Executive Organization Committee of Employer’s Board of Directors (provided that, if Executive is CEO, such\nconsent must be by the\nA-2\nBoard of Directors), directly or indirectly serve or act in a consulting, executive or managerial capacity, or engage in oversight of any person who\nserves or acts in a consulting, executive or managerial capacity, as an officer, director, employee, consultant, advisor, independent contractor, agent\nor representative, for the domestic or worldwide chocolate, confectionery, confectionery-related snack or chocolate-related businesses of any person\nor entity that is in competition with any of the aspects of Employer’s Business. For purposes of clarification, Executive will not be deemed to be\ninvolved in a business in competition with Employer’s Business, and accordingly this paragraph 2 will not be violated, by the Executive\n(A) providing services to a subsidiary, division or unit of an entity (a “parent company”) that engages, directly or indirectly, in any competitive\nbusiness described above, so long as Executive and the subsidiary, division or unit to which he/she is providing services do not engage in any such\ncompetitive business, or (B) serving in a consulting, executive or managerial capacity of a parent company that engages, directly or indirectly, in any\ncompetitive business described above, so long as the gross revenues from such competitive businesses constituted less than 10% of consolidated\nannual gross revenues for the parent company’s most recently completed fiscal year.\n3. Non-Solicitation; Non-Disparagement. Both (i) during the term of his/her employment by Employer, and (ii) for a period of twelve\n(12) months following the termination of his/her employment (whether voluntary or involuntary, and regardless of reason), Executive, except in the\nperformance of his/her duties to Employer, shall not directly or indirectly (including as an officer, director, employee, consultant, advisor, agent or\nrepresentative), for himself/herself or on behalf of any other person or entity:\n(a) for any purpose that is in competition with any of the aspects of Employer’s Business, solicit, take away or engage, or participate in\nsoliciting, taking away or engaging, any customers, suppliers, agents, licensees or licensors of Employer with whom Executive had contact while\nemployed by Employer, or about whom Employer had access to confidential information as a result of Executive’s employment by Employer; or\n(b) knowingly recruit or solicit, or participate in recruiting or soliciting, any of Employer’s employees, or communicate, except in the\ncase of a reference described in the last sentence of this paragraph, with any other person or entity about the nature, quality or quantity of work, or\nany special knowledge or personal characteristics, of any person employed by Employer. If Executive should wish to discuss possible employment\nwith any then-current employee of Employer during the period set forth above, Executive may request written permission to do so from the most\nsenior human resources officer of Employer who may, in his/her discretion, grant a written exception to the no solicitation covenant set forth\nimmediately above; provided, however, Executive shall not discuss any such employment possibility with any such employee prior to such\npermission. Notwithstanding the foregoing, the provisions of this paragraph shall not be violated by (i) general advertising or solicitation not\nspecifically targeted at employees of Employer, (ii) Executive serving as a reference, upon request, for any employee of Employer, or (iii) actions\ntaken by any person or entity with which Executive is associated if Executive is not personally involved in any manner in the matter and has not\nidentified such employee for recruiting or solicitation.\nA-3\nIn addition, both (i) during the term of his/her employment by Employer, and (ii) following the termination of his/her employment (whether\nvoluntary or involuntary, and regardless of reason), Executive shall not knowingly, willfully and with intent to harm Employer make any public\nstatements that disparage Employer, its employees, officers, directors, products or services, provided that, notwithstanding the foregoing, truthful\nstatements made in the course of sworn testimony in administrative, judicial or arbitral proceedings (including, without limitation, depositions in\nconnection with such proceedings), normal competitive-type statements, and statements made in the good faith performance of the Executive’s\nduties to Employer shall not constitute a violation of this clause.\n4. Violation of Paragraphs 1, 2 or 3. Executive acknowledges Employer’s valid and protectable interest in aligning the long-term interests of\nvalued employees with those of Employer by providing Executive an ownership interest in the Employer through the PSU program and other equity\nincentive programs and otherwise, and likewise acknowledges Employer’s valid and protectable interest in preventing former employees whose\ninterests become adverse to the Employer from maintaining an ownership or other interest in the Employer. Accordingly, Executive agrees that if\nhe/she violates any of paragraphs 1, 2 or 3 above (the date on which any such violation occurs is the “Date of Breach”), Employer may, in its sole\ndiscretion, in addition to any other remedies available to it at law (including without limitation monetary damages) or in equity (including without\nlimitation temporary, preliminary and/or permanent injunctive relief):\n(a) cancel any unvested portion of any and all PSU and RSU awards;\n(b) cancel any unexercised stock options;\n(c) require Executive to pay Employer the full value of any benefits received by Executive during the period twelve (12) months prior to\nExecutive’s last date of employment through the Date of Breach, from (i) PSUs, (ii) RSUs, and (iii) the exercise of any options;\n(d) cancel any unpaid benefits of Executive under the DB SERP and DC SERP; and/or\n(e) require Executive to pay Employer the full value of any benefits already received by Executive under the DB SERP or DC SERP\n(including for this purpose amounts that would have been received but for Executive’s election to defer such amounts under the Deferred\nCompensation Plan).\nMoreover, if Employer seeks temporary, preliminary and/or permanent injunctive relief for a violation or threatened violation of paragraphs 1,\n2 or 3 above, Executive hereby expressly consents to the entry of such relief against him/her by a court of competent jurisdiction. Executive further\nagrees that in the event he/she later believes that any provision hereof is not enforceable for any reason, Executive will not act in violation of any\nsuch provision until such time as a court of competent jurisdiction enters a final judgment with respect to enforceability.\n5. Entire Agreement. Executive acknowledges and agrees that (a) this Agreement includes the entire agreement and understanding between the\nparties with respect to the subject matter hereof, and may be amended, modified or changed only by a written instrument executed\nA-4\nby Executive and Employer, and (b) violation of paragraphs 1, 2 or 3 hereof may cause Executive to lose the right to receive, or may obligate\nExecutive to repay to Employer, amounts awarded or accrued under various plans and programs of Employer as described herein and that, to the\nextent any effect of this Agreement upon such amounts may be inconsistent with the terms and conditions of such plans or programs as in effect on\nthe date hereof (including without limitation as set forth in the Long Term Incentive Program Participation Agreement to which Executive may be a\nparty), this Agreement shall constitute an amendment of such terms and conditions and Executive’s consent thereto. No provision of this Agreement\nmay be waived except by a writing executed and delivered by the party sought to be charged. Any such written waiver will be effective only with\nrespect to the event or circumstance described therein and not with respect to any other event or circumstance, unless such waiver expressly provides\nto the contrary.\n6. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without\nreference to principles of conflict of laws.\n(b) All notices and other communications hereunder shall be in writing; shall be delivered by hand delivery to the other party or mailed\nby registered or certified mail, return receipt requested, postage prepaid or by a nationally recognized courier service such as Federal Express; shall\nbe deemed delivered upon actual receipt; and shall be addressed as follows:\nIf to Employer:\nThe Hershey Company\n100 Crystal A Drive\nHershey, Pennsylvania 17033\nATTN: Chief People Officer\nIf to Executive:\nAt the address set forth with the signature below,\nor to such other address as either party shall have furnished to the other in writing in accordance herewith.\n(c) Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective\nto the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or\nunenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction.\nIN WITNESS WHEREOF, each of the parties hereto has duly executed this Agreement as of the date first set forth above.\nA-5\nEXECUTIVE:\nPrint Name and Address:\nEMPLOYER:\nThe Hershey Company, a Delaware corporation\nBy:\nBurton H. Snyder\nSenior Vice President, General Counsel and Secretary\nA-6
+83a79ed689ef320a8f65e0268de91e10.pdf	effective_date jurisdiction party term	EX-10 .3 2 ctshexhibit10312312017.htm EXHIBIT 10.3\nEXHIBIT 10.3\nAMENDED AND RESTATED EXECUTIVE EMPLOYMENT AND NON-DISCLOSURE, NON-COMPETITION, AND INVENTION\nASSIGNMENT AGREEMENT\nThis Amended and Restated Executive Employment and Non-Disclosure, Non-Competition, and Invention Assignment\nAgreement (this “Agreement”) is made as of the ___ day of [____] 2018 (the “Effective Date”) by and between Cognizant Technology Solutions\nCorporation, a Delaware corporation (the “Company” (where applicable, the definition of Company shall include the Company’s subsidiaries and\naffiliates and any successors or assigns)), and [_____] (“Employee”).\n[WHEREAS, Employee is currently employed by the Company as its [_____]; [and]]\nWHEREAS, the Company desires to [continue to] retain the services of Employee; [and]\n[WHEREAS, the Parties desire to amend and restate, in its entirety, the parties’ prior agreements pertaining to Employee’s\nemployment, and set forth the new terms and conditions of Employee’s employment by the Company.]\nNOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth and\nintending to be legally bound hereby, the Company and Employee (individually a “Party” and together, the “Parties”) agree as follows:\n1. Definitions.\n(a) “Annual Base Salary” shall mean the rate of annual base salary paid or payable to Employee by the Company (including\nauthorized deferrals and salary reduction amounts) immediately prior to Employee’s Termination Date.\n(b) “Board” shall mean the Board of Directors of Cognizant Technology Solutions Corporation.\n(c) “Cause” shall mean (i) willful malfeasance or willful misconduct by the Employee in connection with his employment,\n(ii) continuing failure to perform such duties as are reasonably requested by Employee’s supervisor, (iii) failure by the Employee to observe\nmaterial policies of the Company applicable to the Employee, (iv) the commission by the Employee of (x) any felony or (y) any misdemeanor\ninvolving moral turpitude, (v) Employee engaging in any fraudulent act or act of embezzlement, or (vi) any material breach of this Agreement.\n(d) “Code” means the Internal Revenue Code of 1986, as amended and the regulations promulgated thereunder.\n(e) “Disability” means Employee’s total and permanent disability as determined in accordance with the Company’s long-term\ndisability policy, whether or not Employee is covered by such policy.\n(f) “Good Reason” means, the occurrence of one or more of the following events or actions:\n(i) A material diminution by the Company of Employee’s authority, duties or responsibilities;\n(ii) A material diminution in Employee’s overall compensation package, which is not otherwise caused by an overall\npolicy by the Company to reduce senior employee compensation throughout the Company;\n(iii) The failure of the Company to obtain from its successors the express assumption of this Agreement; or\n(iv) A change, without Employee’s consent, in the principal place of work of the Employee to a location that is more\nthan 50 miles from his primary work location as of the date of this Agreement, but only if such change occurs on or after a Change in Control.\n(g) “Notice of Termination” means a written notice that (i) indicates the specific termination provision in this Agreement\nrelied upon and (ii) briefly summarizes the facts and circumstances deemed to provide a basis for termination of Employee’s employment under\nthe provision so indicated.\n(h) “Termination Date” shall mean the last day of Employee’s employment with the Company.\n(i) “Termination of Employment” shall mean the termination of Employee’s active employment relationship with the\nCompany.\n2. Employment. The Company hereby [employs][continues to employ] Employee, and Employee hereby [accepts][continues to\naccept] such employment, upon the terms and conditions set forth herein.\n3. Duties.\n(a) Position. Employee [shall be][continues to be] employed as [_____] and shall have the duties and responsibilities\nassigned by [_____] upon initial hire and from time to time thereafter. Employee shall perform faithfully and diligently all duties assigned to\nEmployee. The Company reserves the right to modify Employee’s position and duties at any time in its sole and absolute discretion, provided\nthat the duties assigned are consistent with the position of a senior executive and that Employee continues to report to [_____] or such other\nposition of a similar or more senior level.\n(b) Best Efforts/Full-time. To the maximum extent permitted by law, Employee agrees to devote Employee’s best efforts and\nentire business time and attention to the Company’s business during the term of Employee’s employment with the Company. Employee agrees\nthat, during the term of Employee’s employment, except as otherwise approved in writing by the Company, which approval the Company may in\nits absolute discretion withhold, Employee will not, either directly or indirectly, or for himself/herself or through, on behalf of, or in conjunction\nwith any person, persons or legal entity, operate, engage in, assist, or be employed by any business activity to or for the benefit of any person or\nentity other than the Company; provided that the foregoing is not intended to prevent an Employee from pursuing hobbies or participating in any\nother activity that is not to the detriment of the Company. Employee further acknowledges and agrees that Employee has access to the\nCompany’s Core Values & Code of Ethics (the “Code of Ethics”) located at www.cognizant.com, and Employee has read and understands the\nCode of Ethics and shall abide by all the terms of said Code of Ethics, as may be amended from time to time, and said Code of Ethics shall be\nincorporated into this Agreement. Employee will abide by all policies and decisions made by the Company, as well as all applicable federal, state\nand local laws, regulations or ordinances. Employee will act in the best interest of the Company at all times.\n(c) Work Location. Employee’s principal place of work shall be located in [_____], or such other location as the parties may\nagree upon from time to time.\n4. At-Will Employment. Employee’s employment with the Company will be “at will,” meaning it is for no specified term and may be\nterminated by Employee or the Company at any time, with or without Cause or advance notice, subject to the provisions of Section 9 below.\n5. Compensation.\n(a) Annual Base Salary. As compensation for Employee’s performance of Employee’s duties hereunder, the Company shall\npay to Employee a base salary as most recently determined by the Compensation\n-2-\nCommittee of the Board and last communicated to the Employee, as may be modified by the Compensation Committee of the Board, payable in\naccordance with the normal payroll practices of the Company, less required deductions for state and federal withholding tax, social security and\nall other employment taxes and payroll deductions. In the event Employee’s employment under this Agreement is terminated by either Party, for\nany reason, Employee will earn the Annual Base Salary prorated to Employee’s Termination Date.\n(b) Incentive Compensation. Employee will be eligible to earn incentive compensation as determined by the Compensation\nCommittee of the Board in accordance with the bonus plan(s) provided to Employee by the Company, in accordance with the terms and\nconditions of such plan(s).\n(c) [Stock Options and Other Equity Awards. Except as set forth herein, this Agreement does not modify or change the\nexisting agreements regarding stock options, stock appreciation rights, restricted stock awards and restricted stock units (each, an “Equity\nAward” and collectively, “Equity Awards”) previously issued to Employee.]\n6. Customary Fringe Benefits. Employee will be eligible for all customary and usual fringe benefits generally available to employees\nof the Company subject to the terms and conditions of the Company’s benefit plan documents. The Company reserves the right to change or\neliminate the fringe benefits on a prospective basis, at any time, effective upon notice to Employee.\n7. Business Expenses. Employee will be reimbursed for all reasonable, out-of-pocket business expenses incurred in the performance\nof Employee’s duties on behalf of the Company. To obtain reimbursement, expenses must be submitted promptly with appropriate supporting\ndocumentation in accordance with the Company’s policies.\n8. Company Access. Employee agrees and consents that, during the term of Employee’s employment with the Company and\nthereafter, the Company may review, audit, intercept, access and disclose all messages created, received or sent over the electronic mail and\ninternet access system provided by the Company with or without notice to Employee and that such review, audit, interception, access, or\ndisclosure may occur during or after working hours. Employee further consents and agrees that the Company may, at any time, access and review\nthe contents of all computers, computer disks, other data storage equipment and devices, files, desks, drawers, closets, cabinets and work stations\nthat are either on the Company’s premises or that are owned or provided by the Company.\n9. Involuntary Termination of Employment.\n(a) Prior to a Change in Control. In the event that Employee’s employment with the Company is involuntarily terminated by\nthe Company for any reason other than Cause, death or Disability or in the event Employee resigns his employment for Good Reason pursuant to\nSection 10 and the Company’s right to cure (as set forth in Section 10) has expired (an “Involuntary Termination”), and in either such case\nEmployee’s employment termination becomes effective before any Change in Control (as defined in Section 9(d) below) has occurred following\nthe date of this Agreement, Employee shall be entitled to the payments and benefits described below, provided that Employee executes and does\nnot revoke the Release (as defined in Section 13) and the Release first becomes effective:\n(i) Employee shall receive a cash payment equal to one (1) times Employee’s Annual Base Salary, such amount to\nbe paid in regular installments in accordance with the Company’s normal payroll practices over a period of twelve (12) months, commencing on\nor as soon as practicable after the date the Release becomes effective and within thirty-five (35) days following Employee’s Termination Date.\n(ii) Employee shall receive a cash payment equal to one (1) times the amount of the Employee’s target annual bonus\nfor the performance year in which the Employee’s Termination Date occurs. Payment shall be made in a lump sum payment on or as soon as\npracticable after the date the Release becomes effective and within thirty-five (35) days following Employee’s Termination Date.\n-3-\n(iii) The Company shall, for a period of eighteen (18) months following the Employee’s Termination Date, pay the\nEmployee each month an amount equal to the monthly COBRA medical insurance cost under the Company’s group medical plan for Employee\nand, where applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable, Employee’s spouse and\ndependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments\nspecified under this Section 9(a)(iii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage\nterminates for any reason before the expiration of the eighteen (18)‐month period. All Company payments under this Section 9(a)(iii) to the\nEmployee can be used for any purpose and will be reported as taxable payments.\n(iv) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with\nthe Company and would have vested had Employee remained employed by the Company during the twelve (12) month period following\nEmployee’s Termination Date shall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such\nEquity Awards shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) With respect to any outstanding Equity Award that was subject to vesting in whole or in part based on\nachievement of performance objective(s), to the extent that the applicable performance period has expired on or before Employee’s Termination\nDate, the performance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more\nfuture dates, the portion of such Equity Award that would have vested had Employee remained employed by the Company during the twelve (12)\nmonth period following Employee’s Termination Date shall become fully vested and exercisable as of Employee’s Termination Date. Such\nEquity Award shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(vi) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany. The payment of amounts described in this Section 9(a)(vi) are not conditioned upon the Release becoming effective unless the\napplicable benefit plan or program provides otherwise.\n(b) Coincident with or within One Year After a Change in Control. In the event that Employee suffers an Involuntary\nTermination that becomes effective coincident with, or within the twelve (12) month period immediately after, the first occurrence of a Change in\nControl following the date of this Agreement, Employee shall be entitled to the payments and benefits described below in this Section 9(b) in\nlieu of, and not in addition to, the payments and benefits described in Section 9(a); provided that Employee executes and does not revoke the\nRelease (as defined in Section 13) and the Release first becomes effective:\n(i) Employee shall receive a cash payment equal to two (2) times Employee’s Annual Base Salary, such amount to\nbe paid in regular installments in accordance with the Company’s normal payroll practices over a period of twenty-four (24) months,\ncommencing on or as soon as practicable after the date the Release becomes effective and within thirty-five (35) days following Employee’s\nTermination Date.\n(ii) Employee shall receive a cash payment equal to two (2) times the amount of the Employee’s target annual bonus\nfor the performance year in which the Employee’s Termination Date occurs. Payment shall be made in a lump sum payment on or as soon as\npracticable after the date the Release becomes effective and within thirty-five (35) days following Employee’s Termination Date.\n(iii) The Company shall, for a period of eighteen (18) months following the date of Employee’s Termination of\nEmployment, pay Employee each month an amount equal to the monthly COBRA medical insurance cost under the Company’s group medical\nplan for Employee and, where applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable,\nEmployee’s spouse and dependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further\nthat the payments specified under this Section 9(b)(iii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare\ncontinuation coverage terminates for any reason before the expiration of the eighteen (18)‐month\n-4-\nperiod. All Company payments under this Section 9(a)(iii) to the Employee can be used for any purpose and will be reported as taxable\npayments.\n(iv) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with\nthe Company shall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such vested Equity\nAwards shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) Outstanding Equity Awards the vesting of which is conditioned, in whole or in part, upon the achievement of\nperformance objectives shall become vested and exercisable as follows:\n(A) To the extent that the applicable performance period has expired on or before Employee’s Termination Date, the\nperformance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more\nfuture dates, such Equity Award shall become fully vested and exercisable as of Employee’s Termination Date.\n(B) To the extent that the applicable performance period has not expired on or before Employee’s Termination Date,\nthe Company shall pro-rate the performance objective(s) for the portion of the performance period that has transpired up to the date of\nclosing of the Change in Control, make a good faith determination of the level of achievement of such pro-rated performance objective\nas of such closing date, and treat as fully vested and exercisable a proportionate amount of such Equity Award that corresponds with the\nlevel of achievement of the pro-rated performance objective, disregarding any future service conditions that otherwise would apply to\nsuch Equity Award.\n(vi) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany. The payment of amounts described in this Section 9(b)(vi) are not conditioned upon the Release becoming effective unless the\napplicable benefit plan or program provides otherwise.\n(c) Notice of Termination. Any termination on account of this Section 9 shall be communicated by a Notice of Termination to\nthe other Party hereto given in accordance with Section 26 hereof.\n(d) Definition of Change in Control. For purposes of this Agreement, the term “Change in Control” shall have the meaning\nset forth in the Company’s 2017 Incentive Award Plan, as amended from time to time or any successor plan in effect as of Employee’s\nTermination Date.\n10. Resignation for Good Reason. If Employee provides notice of his intent to terminate for Good Reason, then, subject to the\nexpiration of the cure period and Employee’s actual termination as described below, such resignation shall be deemed an Involuntary Termination\nfor purposes of this Agreement and Employee shall be entitled to the payments and benefits described in Section 9 subject to the requirements set\nforth in this Agreement, including Section 13. Employee must provide written notice to the Company of his intent to terminate his employment\nfor Good Reason within thirty (30) days of the action or omission giving rise to such claim of Good Reason. Thereafter, the Company shall have\na period of thirty (30) days within which it may correct the event or action that constitutes the grounds for Good Reason as set forth in\nEmployee’s notice of termination. If the Company does not correct the event or action prior to the expiration of the foregoing cure period,\nEmployee must terminate his employment for Good Reason within thirty (30) days after the expiration of the cure period, in order for the\ntermination to be considered a Good Reason termination under this Agreement.\n11. Termination Due to Death. If Employee’s employment with the Company is terminated due to death, Employee shall be entitled to\nthe payments and benefits described below, provided that Employee’s estate executes and does not revoke the Release (as defined in Section 13)\nand the Release first becomes effective:\n(a) Employee shall receive a cash payment equal to (1) times the amount of the Employee’s target annual bonus for the\nperformance year in which the Employee’s Termination Date occurs, pro-rated based on\n-5-\nthe portion of such year that has elapsed as of Employee’s Termination Date. Payment shall be made in a lump sum payment on or as soon as\npracticable after the date the Release becomes effective and within thirty-five days following Employee’s Termination Date.\n(b) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the\nCompany shall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such vested Equity Awards\nshall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(c) Outstanding Equity Awards the vesting of which is conditioned, in whole or in part, upon the achievement of performance\nobjectives shall become vested and exercisable as follows:\n(i) To the extent that the applicable performance period has expired on or before Employee’s Termination Date, the\nperformance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future\ndates, such Equity Award shall become fully vested and exercisable as of Employee’s Termination Date.\n(ii) To the extent that the applicable performance period has not expired on or before Employee’s Termination Date,\nthe Company shall pro-rate the performance objective(s) for the portion of the performance period that has transpired up to Employee’s\nTermination Date, make a good faith determination of the level of achievement of such pro-rated performance objective as of such Termination\nDate, and treat as fully vested and exercisable a proportionate amount of such Equity Award that corresponds with the level of achievement of\nthe pro-rated performance objective, disregarding any future service conditions that otherwise would apply to such Equity Award.\n(d) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany. The payment of amounts described in this Section 11(d) are not conditioned upon the Release becoming effective unless the applicable\nbenefit plan or program provides otherwise.\n12. Termination Due to Disability or For Cause. If Employee’s employment with the Company is terminated by the Company due to\nDisability or for Cause, Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany; all other Company obligations to Employee will be extinguished as of the Termination Date.\n13. Release. Notwithstanding the foregoing, no payments or benefits shall be provided under Sections 9, 10 and 11, as applicable\n(except for those payments that are owed pursuant to applicable law and/or are specifically not conditioned upon the execution of a release by\nEmployee or Employee’s estate, as applicable), unless Employee or his estate, if applicable, executes, and does not revoke, the Company’s then\nstandard written general release (the “Release”) of any and all claims against the Company and all related parties with respect to all matters\narising out of Employee’s employment by the Company (other than any entitlements under the terms of this Agreement or under any other plans\nor programs of the Company in which Employee participated and under which Employee has accrued and earned a benefit) or the termination\nthereof. The Company will provide Employee with the form of release agreement within seven days after Employee’s separation from service. To\nbe entitled to the severance or other benefits, Employee must execute and deliver to the Company the release agreement on or before the last day\nof the minimum required waiver consideration period provided under the Age Discrimination in Employment Act or other applicable law or such\nlater date specified in the release agreement. If Employee timely delivers an executed release agreement to the Company, and Employee does not\nrevoke the release agreement during the minimum revocation period required under applicable law, if any, the severance or other benefits shall be\npaid or commence being paid, as specified in this Agreement, subject to any delay required pursuant to Section 32(b) of this Agreement. If,\nhowever, the period during which Employee has discretion to execute or revoke the release agreement straddles two calendar years, the cash\nseverance or other benefits shall be paid or commence being paid, as applicable, as soon as practicable in the second of the two calendar years,\nregardless of within which calendar\n-6-\nyear Employee actually delivers the executed release agreement to the Company, subject to the release agreement first becoming effective.\nConsistent with section 409A of the Code, Employee may not, directly or indirectly, designate the calendar year of payment. Nothing in this\nSection 13 shall be construed to alter the terms of this Agreement that condition Employee’s entitlement to any severance or other benefits upon\nEmployee’s compliance with the restrictive covenants and any other terms and conditions specified in this Agreement.\n14. Other Payments. Any payments and benefits that become due under Sections 9, 10 and 11 hereof shall be in addition to (but not in\nduplication of) and not in lieu of any payments and benefits due to Employee under any other plan, policy or program of the Company, except\nthat Employee shall not be entitled to any payments and benefits under the Company’s then current severance pay policies.\n15. No Mitigation. Employee shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by\nseeking other employment or otherwise, nor shall the amount of any payment or benefit provided for herein be reduced by any compensation\nearned by other employment or otherwise; provided, however, that any obligation of the Company to make the payments described in Sections\n9(a)(iii) and 9(b)(iii) shall cease upon Employee becoming covered under a healthcare plan of another employer.\n16. Non-Exclusivity of Rights. Except as provided in Section 14, nothing in this Agreement shall prevent or limit Employee’s\n[continuing or] future participation in or rights under any benefit, bonus, incentive or other plan or program provided by the Company or any of\nits subsidiaries or affiliates and for which Employee may qualify.\n17. No Set-Off. Other than with respect to the Recoupment Policy (as hereinafter defined), the Company’s obligation to make the\npayments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any circumstances,\nincluding, without limitation, any set-off, counterclaim, recoupment, defense or other right that the Company may have against Employee or\nothers.\n18. Taxes.\n(a) All payments under this Agreement shall be made subject to applicable tax withholding, and the Company shall withhold\nfrom any payments under this Agreement all federal, state and local taxes as the Company is required to withhold pursuant to any law or\ngovernmental rule or regulation. Employee shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due\nwith respect to any payment received under this Agreement, including, without limitation, any excise tax imposed by Section 4999 of the Code.\n(b) If the payments and benefits received or to be received by Employee in connection with a Change in Control or the\ntermination of Employee’s employment (whether payable pursuant to the terms of this Agreement (“Contract Payments”) or any other plan,\narrangement or agreement with the Company or any affiliate (collectively with the Contract Payments, the “Total Payments”), would constitute a\n“parachute payment” under Section 280G of the Code, then the Total Payments shall be reduced, in the manner set forth below, by the minimum\namount necessary to result in no portion of the Total Payments being non‐deductible to the Company pursuant to Section 280G of the Code or\nsubject to the excise tax imposed under Section 4999 of the Code.\n(c) All determinations required to be made under this Section 18, including whether a reduction in Total Payments is\nrequired, the amount of any such reduction and the assumptions to be utilized in arriving at such determination, shall be made by an accounting\nor law firm of recognized standing reasonably selected by the Company (the “Firm”), which may be, but will not be required to be, the\nCompany’s independent auditors. The Firm shall submit its determination and detailed supporting calculations to both Employee and the\nCompany within fifteen (15) days after receipt of a notice from either the Company or Employee that Employee may receive payments that may\nbe “parachute payments.” If the Firm determines that a reduction is required by this Section 18, the Contract Payments consisting of cash\nseverance shall be reduced to the extent necessary so that no portion of the Total Payments shall be subject to the excise tax imposed by section\n4999 of the Code, and the Company shall pay such reduced amount to Employee in accordance with the terms of this Agreement. If additional\nContract Payments must be reduced pursuant to this Section 18 after the cash severance has been reduced to zero, the Contract Payments\nallocable to performance-vested Equity Awards shall next be reduced, followed by the\n-7-\nContract Payments allocable to time-vested Equity Awards, to the extent necessary to satisfy the requirements of this Section 18.\n(d) Employee and the Company shall each provide the Firm access to and copies of any books, records, and documents in the\npossession of Employee or the Company, as the case may be, reasonably requested by the Firm, and otherwise cooperate with the Firm in\nconnection with the preparation and issuance of the determinations and calculations contemplated by this Section 18. The fees and expenses of\nthe Firm for its services in connection with the determinations and calculations contemplated by this Section 18 shall be borne by the Company.\n19. Confidential Information. Employee agrees that Employee’s services to the Company [have been and will continue to be][will be]\nof a special, unique and extraordinary character, and that Employee’s position places Employee in a position of confidence and trust with the\nCompany’s customers and employees. Employee also recognizes that Employee’s position with the Company will give Employee substantial\naccess to Confidential Information (as defined below), the disclosure of which to competitors of the Company would cause the Company to\nsuffer substantial and irreparable damage. Employee recognizes, therefore, that it is in the Company’s legitimate business interest to restrict\nEmployee’s use of Confidential Information for any purposes other than the discharge of Employee’s employment duties at the Company, and to\nlimit any potential appropriation of Confidential Information by Employee for the benefit of the Company’s competitors and to the detriment of\nthe Company. Accordingly, Employee agrees as follows:\n(a) Employee will not at any time, whether during or after the termination of Employee’s employment, reveal to any person\nor entity any of the trade secrets or confidential information of the Company or of any third party that the Company is under an obligation to\nkeep confidential (including but not limited to trade secrets or confidential information respecting inventions, products, designs, methods, know-\nhow, techniques, systems, processes, software programs, works of authorship, customer lists, projects, plans and proposals) (“Confidential\nInformation”), except as may be required in the ordinary course of performing Employee’s duties as an employee of the Company, and Employee\nshall keep secret all matters entrusted to Employee and shall not use or attempt to use any such information in any manner that may injure or\ncause loss or may be calculated to injure or cause loss whether directly or indirectly to the Company. By way of example and not limitation,\nConfidential Information also includes any and all information, whether or not meeting the legal definition of a trade secret, concerning the\nCompany’s actual, planned or contemplated: (i) marketing plans, business plans, strategies, forecasts, budgets, projections and costs; (ii)\npersonnel information; (iii) customer, vendor and supplier lists; (iv) customer, vendor and supplier needs, transaction histories, contacts,\nvolumes, characteristics, agreements and prices; (v) promotions, operations, sales, marketing, and research and development; (vi) business\noperations, internal structures and financial affairs; (vii) software and operating systems and procedures; (viii) pricing structure of the Company’s\nservices and products; (ix) proposed services and products; (x) contracts with other parties; (xi) performance characteristics of the Company’s\nproducts; and (xii) Inventions and Works (each as defined in Section 20). Confidential Information also includes any and all information of\nCompany’s clients and customers that is deemed confidential by such clients and customers (whether past, present or potential), including, but\nnot limited to: marketing tools, inventions, processes, contact lists, materials, software program code, logic diagrams, flow charts, procedural\ndiagrams, computer programming techniques and know how, maps and any documentation related thereto.\n(b) The above restrictions shall not apply to: (i) information that at the time of disclosure is in the public domain through no\nfault of Employee; (ii) information received from a third party outside of the Company that was publicly disclosed without a breach of any\nconfidentiality obligation; or (iii) information approved for release by written authorization of the Company. In addition, in the event that\nEmployee is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative\ndemand or similar process) to disclose any of the Confidential Information, it is agreed that Employee will provide the Company with prompt\nnotice of such request(s) so that the Company may seek an appropriate protective order or other appropriate remedy and/or waive compliance\nwith the confidentiality provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or the Company\ngrants a waiver hereunder, Employee may furnish that portion (and only that portion) of the Confidential Information that Employee is legally\n-8-\ncompelled to disclose and will exercise its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded any\nConfidential Information so furnished.\n(c) Further, Employee agrees that during Employee’s employment Employee shall not take, use or permit to be used any\nnotes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials of any\nnature relating to any matter within the scope of the business of the Company or concerning any of its dealings or affairs otherwise than for the\nbenefit of the Company. Employee further agrees that Employee shall not, after the termination of Employee’s employment, use or permit to be\nused any such notes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other\nmaterials, it being agreed that all of the foregoing shall be and remain the sole and exclusive property of the Company and that, immediately\nupon the termination of Employee’s employment, Employee shall deliver all of the foregoing plus any other Confidential Information, and all\ncopies thereof, to the Company, at its main office.\n(d) Employee agrees that upon the termination of Employee’s employment with the Company, Employee will not take or\nretain without written authorization any documents, files or other property of the Company, and Employee will return promptly to the Company\nany such documents, files or property in Employee’s possession or custody, including any copies thereof maintained in any medium or format.\nEmployee recognizes that all documents, files and property that Employee has received and will receive from the Company, including but not\nlimited to scientific research, customer lists, handbooks, memoranda, product specifications, and other materials (with the exception of\ndocuments relating to benefits to which Employee might be entitled following the termination of Employee’s employment with the Company),\nare for the exclusive use of the Company and employees who are discharging their responsibilities on behalf of the Company, and that Employee\nhas no claim or right to the continued use, possession or custody of such documents, files or property following the termination of Employee’s\nemployment with the Company.\n(e) Employee acknowledges that the Company has provided Employee with the following notice of immunity rights in\ncompliance with the requirements of the Defend Trade Secrets Act of 2016: (i) Employee shall not be held criminally or civilly liable under any\nU.S. federal or state trade secret law for the disclosure of Confidential Information that is made in confidence to a U.S. federal, state or local\ngovernment official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law; (ii) Employee shall not be\nheld criminally or civilly liable under any U.S. federal or state trade secret law for the disclosure of Confidential Information that is made in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; and (iii) if Employee files a lawsuit for\nretaliation by the Company for reporting a suspected violation of law, Employee may disclose the Confidential Information to Employee’s\nattorney and use the Confidential Information in the court proceeding, if Employee files any document containing the Confidential Information\nunder seal, and does not disclose the Confidential Information, except pursuant to court order. However, under no circumstance will Employee be\nauthorized to disclose any information covered by attorney-client privilege or attorney work product of the Company without prior written\nconsent of the Company’s General Counsel or other officer designated by the Company. Notwithstanding anything to the contrary contained\nherein, no provision of this Agreement shall be interpreted so as to impede Employee (or any other individual) from reporting possible violations\nof U.S. federal law or regulation to any governmental agency or entity, including but not limited to the U.S. Department of Justice, the U.S.\nSecurities and Exchange Commission, the U.S. Congress, and any agency Inspector General of the U.S. government, or making other disclosures\nunder the whistleblower provisions of U.S. federal law or regulation. Employee does not need the prior authorization of the Company to make\nany such reports or disclosures and Employee shall not be not required to notify the Company that such reports or disclosures have been made.\n20. Intellectual Property.\n(a) Employee agrees to disclose fully, promptly, and in writing to the Company any and all Inventions and Works (each as\ndefined below) that are conceived, made, reduced to practice, developed, authored, created, drawn or written at any time while Employee is\nemployed by the Company and for a period of six (6) months thereafter. Employee will generate and provide to the Company adequate and\ncurrent written records of all\n-9-\nInventions and Works in the form of notes, sketches, drawings, reports, flow charts, procedural diagrams, logic diagrams, software program code,\nprocedural diagrams, computer programming techniques or other documents relating thereto or in such other form as will be requested by the\nCompany, which records and any copies thereof will be and will remain the exclusive property of the Company and will be available to the\nCompany at all times, along with all available information relating thereto (with all necessary plans and models) to the Company.\n(b) The Company and Employee agree that “Inventions,” is defined in this Agreement to include any and all new or useful\nideas, developments, discoveries, improvements, designs, formulas, modifications, trademarks, service marks, trade secrets, and other intellectual\nproperty, whether patentable or not (including without limitation any technology, computer programs, software, software program code, logic\ndiagrams, flow charts, procedural diagrams, computer programming techniques, test, concept, idea, process, method, composition of matter,\nformula or technique), and all know-how related thereto, that Employee conceives, makes, reduces to practice, or develops, solely or jointly with\nothers (i) that relate to the actual or contemplated business, work or activities of the Company, (ii) that result from or are suggested by any work\nwhich Employee [has done or] may do on behalf of the Company, or by any information that Employee may receive by virtue of Employee’s\nemployment by the Company, or (iii) that are developed, tested, improved or investigated either in part or entirely on time for which Employee\nwas paid by the Company, or with the use of premises, equipment or property provided, owned, leased, or contracted for by or on behalf of the\nCompany.\n(c) The Company and Employee agree that “Works” is defined in this Agreement to include any and all materials for which\ncopyright protection may be obtained, including without limitation literary works (including books, pamphlets, articles and other writings), mask\nworks, artistic works (including designs, graphs, drawings, blueprints and other graphic works), computer programs, software program code,\nlogic diagrams, flow charts, procedural diagrams, computer programming, compilations, recordings, photographs, motion pictures and other\naudio-visual works that Employee authors, conceives, creates, draws, makes, or writes, solely or jointly with others (i) that relate to the actual or\ncontemplated business, work or activities of the Company, (ii) that result from or are suggested by any work which Employee has done or may\ndo on behalf of the Company, or by any information that Employee may receive by virtue of Employee’s employment by the Company, or\n(iii) that are developed, tested, improved or investigated either in part or entirely on time for which Employee was paid by the Company, or with\nthe use of premises, equipment or property provided, owned, leased, or contracted for, by, or on behalf of the Company.\n(d) Employee agrees to assign, transfer and convey, and hereby assigns, transfers and conveys to the Company all of the\nrights, titles and interests in and to any and all such Inventions and Works that Employee [has or] may acquire in such Inventions or Works that\nare conceived, made, reduced to practice, developed, authored, created, drawn or written at any time while Employee is employed by the\nCompany and for a period of six (6) months thereafter. Employee agrees that the Company will be the sole owner of all patents, copyrights,\ntrademarks and other intellectual property rights in connection therewith, and agrees to take all such actions as may be requested by the Company\nduring Employee’s employment with the Company and at any time thereafter, with respect to any such Inventions or Works to confirm or\nevidence such assignment, transfer, conveyance or ownership, and to assist in the Company’s maintenance, enforcement, license, assignment,\ntransfer, or conveyance of rights in respect of the Inventions or Works.\n(e) By way of example and not limitation, at any time and from time to time, upon the request of the Company, Employee\nagrees to execute, acknowledge, swear to, seal and deliver to the Company, any and all lawful instruments, documents and papers, give evidence\nand do any and all other lawful acts that, in the opinion of the Company, are or may be necessary or desirable to document such assignment,\ntransfer and conveyance or to enable the Company to file and prosecute applications for and to acquire, maintain and enforce any and all patents,\ntrademarks, copyrights and other property rights under United States, local, state or foreign law with respect to any such Inventions or Works or\nto obtain any extension, validation, reissue, continuance or renewal of any such patent, trademark, copyright, or other intellectual property right.\nBy way of further example and not limitation, Employee agrees to meet with the Company representatives or attorneys for the purpose of\ninitiating, maintaining or defending litigation, administrative or other proceedings; and to participate fully in litigation, administrative or other\nproceedings as requested by the Company. In the event that the Company may be unable, for\n-10-\nany reason whatsoever, after reasonable effort, to secure Employee’s signature on any patent, copyright, trademark or other intellectual property\napplication or other papers, Employee hereby irrevocably designates and appoints the Company and its duly authorized officers and agents, as\nEmployee’s agent and attorney-in-fact to act for and on behalf of Employee to execute, acknowledge, swear to, seal and deliver to the Company\nand to file any such application or applications or other papers, and to do all other lawfully permitted acts to further the provisions of this Section\n20 of this Agreement.\n(f) The Company agrees to reimburse Employee for reasonable expenses incurred by Employee in complying with the\nprovisions of Sections 20(d) and 20(e) of this Agreement. The Company and Employee agree that Employee is not entitled to additional\ncompensation beyond that paid to Employee for the period of time that he is employed by the Company, which compensation, along with the\nCompany’s understandings set forth in this Agreement, is expressly acknowledged to be adequate consideration for all of the Employee promises\nand obligations set forth in this Agreement.\n(g) Employee expressly acknowledges and states that all Works that are made by Employee (solely or jointly with others) are\nbeing created at the instance of the Company and are “works made for hire,” as that term is defined in the Copyright Act of 1976, 17 USC § 101.\nIn the event that such laws are inapplicable or in the event that any such Works, or any part thereof, are determined by a court of competent\njurisdiction not to be a work made for hire, this Agreement will operate as an irrevocable and unconditional assignment by Employee to the\nCompany of all Employee’s right, title and interest (including, without limitation, all rights in and to the copyrights throughout the world,\nincluding the right to prepare derivative works and the rights to all renewals and extensions) in the Works in perpetuity.\n(h) Employee represents that Attachment A to this Agreement describes all inventions and works, whether patentable or not,\nthat have been conceived, made, reduced to practice, developed, authored, created, drawn or written prior to Employee’s employment by the\nCompany; provided, however, that, Employee has not disclosed in Attachment A information that is a trade secret belonging to another, or that is\nthe subject of a contract preventing Employee’s disclosure of the information to the Company.\n21. Non-Competition and Non-Solicitation. In further consideration of the compensation to be paid to Employee hereunder, Employee\nacknowledges that during the course of Employee’s employment with the Company, the Company will provide Employee Confidential\nInformation, which Employee promises to not disclose. Further, Employee will become and/or remain familiar with the Company’s trade secrets\nand with other Confidential Information concerning the Company and that Employee’s services shall be of special, unique and extraordinary\nvalue to the Company, and therefore, the Employee agrees that some restrictions on Employee’s activities during and after Employee’s\nemployment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company:\n(a) During the period of Employee’s employment by the Company and, if Employee’s employment with the Company\nterminates for any reason, for a period of one (1) year thereafter (“Covenant Period”), except with the written consent of the Board, Employee\nshall not directly or indirectly, own, control, finance or participate in the ownership, control or financing of, or be employed by or provide\nservices to, any Competitor. For the purposes of this Agreement, a “Competitor” is defined as a person, business or enterprise (including\ndivisions of persons, businesses and enterprises) that directly or indirectly engages in services of the type conducted, authorized, offered or\nprovided by the Company (the “Restricted Business”) in the Territory. Without limiting the foregoing, for purposes of this Agreement, each\nentity listed on Attachment B, as shall be modified from time to time by the Company upon written notice to Employee, shall constitute a\n“Competitor.” For purposes of this Agreement, “Territory” is defined as the territory or territories within which Employee actually worked, or in\nrespect of which Employee was involved in providing services, during the twelve (12) month period prior to Employee’s Termination Date.\nNotwithstanding the foregoing, nothing herein shall prevent Employee from providing services to, or being employed by, or owning, controlling,\nfinancing or participating in the ownership, control or financing of, any diversified entity or other person (other than the entities listed on\nAttachment B) that is engaged in the Restricted Business, so long as (i) the Restricted Business does not constitute greater than 25% of the\naggregate revenue of such diversified entity or other person and (ii) Employee is not employed within and does not have\n-11-\ninvolvement with business development or business strategy with respect to the Restricted Business. In further consideration for the Company’s\npromises herein, Employee agrees that during the Covenant Period, Employee will not directly or indirectly (i) solicit, entice, induce, cause,\nencourage or recruit any part-time or full-time employee, representative, consultant, customer, subscriber or supplier of the Company or its\nsubsidiaries or affiliates to work for, provide services to or do business with a third party other than the Company or its subsidiaries or affiliates\nor engage in any activity that would cause any employee, representative, consultant, customer, subscriber or supplier to violate any agreement\nwith the Company or its subsidiaries or affiliates or otherwise terminate or change its relationship with the Company or its subsidiaries or\naffiliates or (ii) hire any current or former part-time or full-time employee, representative or consultant of the Company or its Affiliates who was\nemployed or engaged by the Company or its subsidiaries or affiliates at any time during the twelve (12) month period prior to Employee’s\nTermination Date or who thereafter becomes employed or engaged by the Company or its subsidiaries or affiliates.\n(b) The foregoing restrictions shall not be construed to prohibit Employee’s ownership of less than one percent (1%) of any\nclass of securities of any corporation that is engaged in any of the foregoing businesses and has a class of securities registered pursuant to the\nSecurities Exchange Act of 1934, as amended, provided that such ownership represents a passive investment and that neither Employee nor any\ngroup of persons including Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees\nany of its financial obligations, otherwise takes any part in its business, other than exercising Employee’s rights as a stockholder, or seeks to do\nany of the foregoing.\n22. Employee Representations.\n(a) Employee represents and warrants that this Agreement and his employment by the Company does not conflict with and\nwill not be constrained by any prior business relationship or contract, that Employee does not possess trade secrets or other proprietary\ninformation arising out of any prior business relationship or contract that, in Employee’s best judgment would be utilized in connection with\nEmployee’s employment with the Company. Employee further agrees that he will not disclose any such trade secrets or other proprietary\ninformation to the Company or others.\n(b) Employee represents and warrants that (i) before signing this Agreement, he has read this Agreement and is entering into\nthis Agreement freely and with knowledge of its contents with the intent to be bound by it and the restrictions contained herein; (ii) Employee\nhas been advised by the Company to consult Employee’s own legal counsel in respect of this Agreement, and Employee has had full opportunity,\nprior to execution of this Agreement, to review thoroughly this Agreement with Employee’s counsel; (iii) the restrictions imposed on Employee\nby this Agreement are fair, reasonable and proper and required for the protection of the Company’s business interests, particularly its investments\nin Employee (e.g ., Employee’s job knowledge and skills), its Confidential Information, as well as the goodwill developed, and its business\nrelationships, with its clients, customers and prospective clients and customers; (iv) the Company would not have entered into this Agreement in\nthe absence of such restrictions, and that any violation of any provision of Sections 19, 20 or 21 hereof will result in irreparable injury to the\nCompany; and (v) the restrictions imposed on Employee by this Agreement, particularly, the post-termination restrictions, shall not preclude\nEmployee from earning a living or engaging in Employee’s profession or trade, or pursuing a career or a business, in each case at the same\ngeneral level of economic benefit as is currently the case.\n23. Consequences of Breach of Covenants; Equitable Relief.\n(a) Employee agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity\nof proving actual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of Sections 19,\n20, and 21 hereof, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled. The\nperiod of the injunction shall be measured from the date of a court order granting the injunctive relief. In the event that any of the provisions of\nSections 19, 20, and 21 hereof should ever be adjudicated to exceed the time, geographic, service, or other limitations permitted by applicable\nlaw in any jurisdiction, then such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic, service, or other\nlimitations permitted by applicable law.\n-12-\n(b) Notwithstanding anything to the contrary herein, Employee acknowledges and agrees that the severance payments and\nbenefits provided herein are being provided by the Company to Employee, among other things, as additional consideration and solely for\nEmployee’s agreement with and adherence to the post-employment restrictive covenants in Section 21 (a)-(c) and Employee’s other promises,\ncovenants, commitments and obligations in this Agreement (including the releases granted in Section 13), the adequacy and sufficiency of which\nEmployee expressly acknowledges. Employee agrees that should the Company, in its sole discretion, deem Employee to be in violation of any\nprovision(s) in said Section 21 (a)-(c), the Company may immediately cease payment of all or any portion of the severance payments and\nbenefits provided hereunder. Employee acknowledges that the severance payments and benefits provided for herein are in addition to anything of\nvalue to which Employee was already entitled.\n(c) Employee irrevocably and unconditionally (i) agrees that any suit, action or other legal proceeding arising out of Section\n19, 20, and 21 hereof, including without limitation, any action commenced by the Company for preliminary and permanent injunctive relief or\nother equitable relief, may be brought in the United States District Court for the District of New Jersey, or if such court does not have jurisdiction\nor will not accept jurisdiction, in any court of general jurisdiction in New Jersey, (ii) consents to the non-exclusive jurisdiction of any such court\nin any such suit, action or proceeding, and (iii) waives any objection that Employee may have to the laying of venue of any such suit, action or\nproceeding in any such court. Employee also irrevocably and unconditionally consents to the service of any process, pleadings, notices or other\npapers in a manner permitted by the notice provisions of Section 26 hereof.\n24. Term of Agreement. This Agreement shall continue in full force and effect for the duration of Employee’s employment with the\nCompany; provided, however, that after the termination of Employee’s employment during the term of this Agreement, this Agreement shall\nremain in effect until all of the obligations of the Parties hereunder are satisfied or have expired.\n25. Successor Company. The Company shall require any successor or successors (whether direct or indirect, by purchase, merger,\nconsolidation or otherwise) to all or substantially all of the business and/or assets of the Company, by agreement in form and substance\nsatisfactory to Employee, to acknowledge expressly that this Agreement is binding upon and enforceable against the Company in accordance\nwith the terms hereof, and to become jointly and severally obligated with the Company to perform this Agreement in the same manner and to the\nsame extent that the Company would be required to perform if no such succession or successions had taken place. Failure of the Company to\nobtain such agreement prior to the effectiveness of any such succession shall be a breach of this Agreement. As used in this Agreement, the\nCompany shall mean the Company as hereinbefore defined and any such successor or successors to its business and/or assets, jointly and\nseverally.\n26. Notice. All notices and other communications required or permitted hereunder or necessary or convenient in connection herewith\nshall be in writing and shall be delivered personally or mailed by registered or certified mail, return receipt requested, or by overnight express\ncourier service, as follows:\nIf to the Company, to:\nCognizant Technology Solutions Corporation\n500 Frank W. Burr Blvd.\nTeaneck, NJ 07666\nAttn: General Counsel\nIf to Employee, to:\n[__________]\n-13-\nor to such other names or addresses as the Company or Employee, as the case may be, shall designate by notice to the other Parties hereto in the\nmanner specified in this Section; provided, however, that if no such notice is given by the Company following a change in control, notice at the\nlast address of the Company or to any successor pursuant to this Section 26 shall be deemed sufficient for the purposes hereof. Any such notice\nshall be deemed delivered and effective when received in the case of personal delivery, five days after deposit, postage prepaid, with the U.S.\nPostal Service in the case of registered or certified mail, or on the next business day in the case of overnight express courier service.\n27. Governing Law. This Agreement shall be governed by and interpreted under the laws of the State of New Jersey without giving\neffect to any conflict of laws provisions.\n28. Contents of Agreement, Amendment and Assignment.\n(a) This Agreement, including the Code of Ethics, supersedes all prior agreements with respect to the subject matter hereof,\nsets forth the entire understanding between the Parties hereto with respect to the subject matter hereof and cannot be changed, modified, extended\nor terminated except upon written amendment executed by Employee and executed on the Company’s behalf by a duly authorized officer, except\nfor revisions or additions to Attachment B, which may be unilaterally modified by the Company upon written notice to Employee[; provided,\nhowever, that this Agreement, except as expressly set forth in Section 9, does not supersede, modify or change any existing written award\nagreements regarding stock options, stock appreciation rights, restricted stock awards, restricted stock units, performance awards, performance\nunits or other stock-based awards issued to Employee prior to the effective date of this Agreement]. The provisions of this Agreement may\nprovide for payments to Employee under certain compensation or bonus plans under circumstances where such plans would not provide for\npayment thereof. It is the specific intention of the Parties that the provisions of this Agreement shall supersede any provisions to the contrary in\nsuch plans, and such plans shall be deemed to have been amended to correspond with this Agreement without further action by the Company, the\nCompany’s Board of Directors or the Board unless such amendment would contravene the provisions of section 409A of the Code and result in\nthe imposition of additional taxes under section 409A of the Code upon Employee.\n(b) Nothing in this Agreement shall be construed as giving Employee any right to be retained in the employ of the Company,\nor as changing or modifying the “at will” nature of Employee’s employment status.\n(c) All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by\nthe respective heirs, representatives, successors and assigns of the Parties hereto, except that the duties and responsibilities of Employee and the\nCompany hereunder shall not be assignable in whole or in part by the Company. If Employee should die after Employee’s Termination Date and\nwhile any amount payable hereunder would still be payable to Employee hereunder if Employee had continued to live, all such amounts, unless\notherwise provided herein, shall be paid in accordance with the terms of this Agreement to Employee’s devises, legates or other designees or, if\nthere is no such designee, to Employee’s estate.\n29. Severability. If any provision of this Agreement is declared illegal, invalid, or otherwise unenforceable by a court of competent\njurisdiction, such provision shall be reformed, if possible, to the extent necessary to render it legal, valid, and enforceable, or otherwise deleted,\nand the remainder of the terms of this Agreement shall not be affected except to the extent necessary to reform or delete such illegal, invalid, or\nunenforceable provision.\n30. Remedies Cumulative; No Waiver. No right conferred upon the Parties by this Agreement is intended to be exclusive of any other\nright or remedy, and each and every such right or remedy shall be cumulative and shall be in addition to any other right or remedy given\nhereunder or now or hereafter existing at law or in equity. No delay or omission by a Party in exercising any right, remedy or power hereunder or\nexisting at law or in equity shall be construed as a waiver thereof.\n31. Miscellaneous. All section headings are for convenience only. This Agreement may be executed in several counterparts, each of\nwhich is an original. It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any of the\nother counterparts.\n- 14-\n32. Section 409A.\n(a) Interpretation. This Agreement is intended to comply with the requirements of Section 409A of the Code to the extent\napplicable or to be exempt from Section 409A of the Code pursuant to the “short-term deferral exception” under Treas. Reg. section 1.409A-1(b)\n(4) or the “separation pay exception” under Treas. Reg. Section 1.409A-1(b)(9)(iii), and shall in all respects be administered and construed in\naccordance with Section 409A of the Code. If any payment or benefit hereunder cannot be provided or made at the time specified herein without\nincurring sanctions on Employee under Section 409A of the Code, then such payment or benefit shall be provided in full at the earliest time\nthereafter when such sanctions will not be imposed. For purposes of Section 409A of the Code, all payments to be made upon a Termination of\nEmployment under this Agreement may only be made upon a “separation from service” (within the meaning of such term under Section 409A of\nthe Code), each payment made under this Agreement shall be treated as a separate payment, the right to a series of installment payments under\nthis Agreement is to be treated as a right to a series of separate payments, and if a payment is not made by the designated payment date under this\nAgreement, the payment shall be made by December 31 of the calendar year in which the designated date occurs. To the extent that any payment\nprovided for hereunder would be subject to additional tax under Section 409A of the Code, or would cause the administration of this Agreement\nto fail to satisfy the requirements of Section 409A of the Code, such provision shall be deemed null and void to the extent permitted by\napplicable law, and, to the extent applicable, any such amount shall be payable in accordance with Section 32(b). In no event shall the Employee,\ndirectly or indirectly, designate the calendar year of payment. Nothing herein shall be construed as having modified the time and form of\npayment of any amounts or payments of “deferred compensation” (as defined under Treas. Reg. Section 1.409A-1(b)(1), after giving effect to the\nexemptions in Treas. Reg. Sections 1.409A-1(b)(3) through (b)(12)) that were otherwise payable pursuant to the terms of any agreement between\nthe Company and Employee in effect on or after January 1, 2005 and prior to the date of this Agreement.\n(b) Payment Delay. Notwithstanding anything herein to the contrary, if it is necessary to postpone the commencement of any\npayments or benefits otherwise payable under this Agreement as a result of Employee’s “separation from service” with the Company to prevent\nthe imposition of any accelerated or additional tax under Section 409A of the Code, then the Company will postpone the commencement of the\npayment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to\nEmployee) that are not otherwise paid within the “short-term deferral exception” under Treas. Reg. Section 1.409A-1(b)(4) and the “separation\npay exception” under Treas. Reg. Section 1.409A-1(b)(9)(iii), until the first payroll date that occurs after the date that is six months following\nEmployee’s “separation of service” with the Company. If any payments are postponed due to such requirements, such postponed amounts will be\npaid to Employee in a lump sum on the first payroll date that occurs after the date that is six months following Employee’s “separation of\nservice” with the Company. If Employee dies during the postponement period prior to the payment of the postponed amount, the amounts\nwithheld on account of Section 409A of the Code shall be paid to the personal representative of Employee’s estate within sixty (60) days after the\ndate of the Employee’s death.\n(c) Reimbursements. All reimbursements provided under this Agreement shall be made or provided in accordance with the\nrequirements of Section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred\nduring Employee’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for\nreimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement\nof an eligible expense will be made on or before the last day of the taxable year following the year in which the expense is incurred, and (iv) the\nright to reimbursement is not subject to liquidation or exchange for another benefit.\n33. Recoupment Policy. Employee acknowledges that Employee shall be subject to and hereby agrees to abide by the terms of any\nclawback or recoupment policy that the Company has adopted or may hereafter adopt, as may be amended from time to time, with or without\nnotice (the “Recoupment Policy”) to further the Company’s interests in enhancing its corporate governance practices and/or to comply with\napplicable law, rules or regulations promulgated by the Securities and Exchange Commission or the rules of the national securities exchange on\nwhich shares of the common stock of the Company are listed for trade. Employee understands that pursuant to the Recoupment Policy, the\nCompany may seek to recoup all or part of any severance payments, bonus or other\n- 15-\nincentive compensation paid to certain officers and former officers, including Equity Awards, in the event that the Company is required to restate\nits financial statements. In consideration of the [continued] benefits to be received from the Company (or a subsidiary) and the right to participate\nin, and receive future awards under, the Company’s cash and equity-based incentive programs, Employee hereby acknowledges, understands and\nagrees that:\n(a) The Recoupment Policy applies to severance, cash bonuses and other incentive compensation, including Equity Awards,\npaid or awarded to Employee prior to or after the date on which the Recoupment Policy is adopted, and Employee agrees that, to the extent\nprovided in the Recoupment Policy, the Recoupment Policy shall apply to equity and other award agreements outstanding as of the date of this\nAgreement or hereafter executed, and such agreements shall be deemed amended by, and to incorporate, the terms of the Recoupment Policy\neven if the Recoupment Policy is not explicitly referenced therein;\n(b) The Company shall be fully entitled to enforce the Recoupment Policy against Employee in accordance with its terms,\nand Employee promptly shall comply with any demand authorized by the Board of Directors of the Company pursuant to the terms of the\nRecoupment Policy for repayment, return or rescission of, severance payments, a cash bonus or other incentive compensation, including Equity\nAwards, subject to the Recoupment Policy; and\n(c) Nothing in this acknowledgement shall be construed to expand the scope or terms of the Recoupment Policy, and\nEmployee is not waiving any defenses Employee may have in the event of an action for recoupment of compensation under the Recoupment\nPolicy, other than (i) waiving any defense regarding the retroactive application of the Recoupment Policy to prior or existing payments or awards\nand (ii) waiving any claim that the integration clause of any agreement excludes the application of the Recoupment Policy.\n[Signature Page Follows]\n-16-\nIN WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed this Agreement as of the date first above\nwritten.\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nName:\nTitle:\n[NAME OF EXECUTIVE]\n- 17-\nATTACHMENT A\n1.\nThe following is a complete list of all inventions and works that have been conceived, made, reduced to practice, developed,\nauthored, created, drawn or written by me alone or jointly with others prior to my engagement by the Company.\n☐ None.\n_______________________________________________________________________\n_______________________________________________________________________\n_______________________________________________________________________\n_______________________________________________________________________\n_______________________________________________________________________\n☐\nDue to a preexisting contract with another party, I cannot disclose certain Inventions or Works that would otherwise be\nincluded on the above-described list.\n☐ Additional sheets are attached.\n(number)\nEMPLOYEE:\nSignature:\nName:\n(Print)\nTitle:\nDate:\n-18-\nATTACHMENT B – List of Direct Competitors\n1.\nInternational Business Machines Corporation\n2.\nAccenture LTD\n3.\nCap Gemini S.A.\n4.\nTata Consultancy Services\n5.\nInfosys Limited\n6.\nWipro Limited\n7.\nHCL Technologies Limited\n8.\nDXC Technology Company\n-19-	EX-10.3 2 ctshexhibit10312312017.htm EXHIBIT 10.3\nEXHIBIT 10.3\nAMENDED AND RESTATED EXECUTIVE EMPLOYMENT AND NON-DISCLOSURE, NON-COMPETITION, AND INVENTION\nASSIGNMENT AGREEMENT\nThis Amended and Restated Executive Employment and Non-Disclosure, Non-Competition, and Invention Assignment\nAgreement (this “Agreement”) is made as of the ___ day of [ 12018 (the “Effective Date”) by and between Cognizant Technology Solutions\nCorporation, a Delaware corporation (the “Company” (where applicable, the definition of Company shall include the Company’s subsidiaries and\naffiliates and any successors or assigns)), and [ 1 (“Employee”).\n \n[WHEREAS, Employee is currently employed by the Company as its [ ]; [and]]\nWHEREAS, the Company desires to [continue to] retain the services of Employee; [and]\n[WHEREAS, the Parties desire to amend and restate, in its entirety, the parties’ prior agreements pertaining to Employee’s\nemployment, and set forth the new terms and conditions of Employee’s employment by the Company.]\nNOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth and\nintending to be legally bound hereby, the Company and Employee (individually a “Party” and together, the “Parties”) agree as follows:\n1. Definitions.\n(a) “Annual Base Salary” shall mean the rate of annual base salary paid or payable to Employee by the Company (including\nauthorized deferrals and salary reduction amounts) immediately prior to Employee’s Termination Date.\n(b) “Board” shall mean the Board of Directors of Cognizant Technology Solutions Corporation.\n(c) “Cause” shall mean (i) willful malfeasance or willful misconduct by the Employee in connection with his employment,\n(ii) continuing failure to perform such duties as are reasonably requested by Employee’s supervisor, (iii) failure by the Employee to observe\nmaterial policies of the Company applicable to the Employee, (iv) the commission by the Employee of (x) any felony or (y) any misdemeanor\ninvolving moral turpitude, (v) Employee engaging in any fraudulent act or act of embezzlement, or (vi) any material breach of this Agreement.\n(d) “Code” means the Internal Revenue Code of 1986, as amended and the regulations promulgated thereunder.\n(e) “Disability” means Employee’s total and permanent disability as determined in accordance with the Company’s long-term\ndisability policy, whether or not Employee is covered by such policy.\n() “Good Reason” means, the occurrence of one or more of the following events or actions:\n(i) A material diminution by the Company of Employee’s authority, duties or responsibilities;\n(i) A material diminution in Employee’s overall compensation package, which is not otherwise caused by an overall\npolicy by the Company to reduce senior employee compensation throughout the Company;\n(iii) The failure of the Company to obtain from its successors the express assumption of this Agreement; or\n(iv) A change, without Employee’s consent, in the principal place of work of the Employee to a location that is more\nthan 50 miles from his primary work location as of the date of this Agreement, but only if such change occurs on or after a Change in Control.\n(g) “Notice of Termination” means a written notice that (i) indicates the specific termination provision in this Agreement\nrelied upon and (ii) briefly summarizes the facts and circumstances deemed to provide a basis for termination of Employee’s employment under\nthe provision so indicated.\n(h) “Termination Date” shall mean the last day of Employee’s employment with the Company.\n \n(i) “Termination of Employment” shall mean the termination of Employee’s active employment relationship with the\nCompany.\n2. Employment. The Company hereby [employs][continues to employ] Employee, and Employee hereby [accepts][continues to\naccept] such employment, upon the terms and conditions set forth herein.\n3. Duties.\n(a) Position. Employee [shall be][continues to be] employed as [ ] and shall have the duties and responsibilities\nassigned by [ ] upon initial hire and from time to time thereafter. Employee shall perform faithfully and diligently all duties assigned to\nEmployee. The Company reserves the right to modify Employee’s position and duties at any time in its sole and absolute discretion, provided\nthat the duties assigned are consistent with the position of a senior executive and that Employee continues to report to [ ] or such other\nposition of a similar or more senior level.\n \n(b) Best Efforts/Full-time. To the maximum extent permitted by law, Employee agrees to devote Employee’s best efforts and\nentire business time and attention to the Company’s business during the term of Employee’s employment with the Company. Employee agrees\nthat, during the term of Employee’s employment, except as otherwise approved in writing by the Company, which approval the Company may in\nits absolute discretion withhold, Employee will not, either directly or indirectly, or for himself/herself or through, on behalf of, or in conjunction\nwith any person, persons or legal entity, operate, engage in, assist, or be employed by any business activity to or for the benefit of any person or\nentity other than the Company; provided that the foregoing is not intended to prevent an Employee from pursuing hobbies or participating in any\nother activity that is not to the detriment of the Company. Employee further acknowledges and agrees that Employee has access to the\nCompany’s Core Values & Code of Ethics (the “Code of Ethics”) located at www.cognizant.com, and Employee has read and understands the\nCode of Ethics and shall abide by all the terms of said Code of Ethics, as may be amended from time to time, and said Code of Ethics shall be\nincorporated into this Agreement. Employee will abide by all policies and decisions made by the Company, as well as all applicable federal, state\nand local laws, regulations or ordinances. Employee will act in the best interest of the Company at all times.\n(c) Work Location. Employee’s principal place of work shall be located in [ ], or such other location as the parties may\nagree upon from time to time.\n4. At-Will Employment. Employee’s employment with the Company will be “at will,” meaning it is for no specified term and may be\nterminated by Employee or the Company at any time, with or without Cause or advance notice, subject to the provisions of Section 9 below.\n5. Compensation.\n(a) Annual Base Salary. As compensation for Employee’s performance of Employee’s duties hereunder, the Company shall\npay to Employee a base salary as most recently determined by the Compensation\n-\nCommittee of the Board and last communicated to the Employee, as may be modified by the Compensation Committee of the Board, payable in\naccordance with the normal payroll practices of the Company, less required deductions for state and federal withholding tax, social security and\nall other employment taxes and payroll deductions. In the event Employee’s employment under this Agreement is terminated by either Party, for\nany reason, Employee will earn the Annual Base Salary prorated to Employee’s Termination Date.\n(b) Incentive Compensation. Employee will be eligible to earn incentive compensation as determined by the Compensation\nCommittee of the Board in accordance with the bonus plan(s) provided to Employee by the Company, in accordance with the terms and\nconditions of such plan(s).\n(c) [Stock Options and Other Equity Awards. Except as set forth herein, this Agreement does not modify or change the\nexisting agreements regarding stock options, stock appreciation rights, restricted stock awards and restricted stock units (each, an “Equity\nAward” and collectively, “Equity Awards”) previously issued to Employee.]\n6. Customary Fringe Benefits. Employee will be eligible for all customary and usual fringe benefits generally available to employees\nof the Company subject to the terms and conditions of the Company’s benefit plan documents. The Company reserves the right to change or\neliminate the fringe benefits on a prospective basis, at any time, effective upon notice to Employee.\n7. Business Expenses. Employee will be reimbursed for all reasonable, out-of-pocket business expenses incurred in the performance\nof Employee’s duties on behalf of the Company. To obtain reimbursement, expenses must be submitted promptly with appropriate supporting\ndocumentation in accordance with the Company’s policies.\n \n8. Company Access. Employee agrees and consents that, during the term of Employee’s employment with the Company and\nthereafter, the Company may review, audit, intercept, access and disclose all messages created, received or sent over the electronic mail and\ninternet access system provided by the Company with or without notice to Employee and that such review, audit, interception, access, or\ndisclosure may occur during or after working hours. Employee further consents and agrees that the Company may, at any time, access and review\nthe contents of all computers, computer disks, other data storage equipment and devices, files, desks, drawers, closets, cabinets and work stations\nthat are either on the Company’s premises or that are owned or provided by the Company.\n9. Involuntary Termination of Employment.\n(a) Prior to a Change in Control. In the event that Employee’s employment with the Company is involuntarily terminated by\nthe Company for any reason other than Cause, death or Disability or in the event Employee resigns his employment for Good Reason pursuant to\nSection 10 and the Company’s right to cure (as set forth in Section 10) has expired (an “Involuntary Termination”), and in either such case\nEmployee’s employment termination becomes effective before any Change in Control (as defined in Section 9(d) below) has occurred following\nthe date of this Agreement, Employee shall be entitled to the payments and benefits described below, provided that Employee executes and does\nnot revoke the Release (as defined in Section 13) and the Release first becomes effective:\n(i) Employee shall receive a cash payment equal to one (1) times Employee’s Annual Base Salary, such amount to\nbe paid in regular installments in accordance with the Company’s normal payroll practices over a period of twelve (12) months, commencing on\nor as soon as practicable after the date the Release becomes effective and within thirty-five (35) days following Employee’s Termination Date.\n(ii) Employee shall receive a cash payment equal to one (1) times the amount of the Employee’s target annual bonus\nfor the performance year in which the Employee’s Termination Date occurs. Payment shall be made in a lump sum payment on or as soon as\npracticable after the date the Release becomes effective and within thirty-five (35) days following Employee’s Termination Date.\n_3-\n(iii) The Company shall, for a period of eighteen (18) months following the Employee’s Termination Date, pay the\nEmployee each month an amount equal to the monthly COBRA medical insurance cost under the Company’s group medical plan for Employee\nand, where applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable, Employee’s spouse and\ndependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments\nspecified under this Section 9(a)(iii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage\nterminates for any reason before the expiration of the eighteen (18)-month period. All Company payments under this Section 9(a)(iii) to the\nEmployee can be used for any purpose and will be reported as taxable payments.\n(iv) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with\nthe Company and would have vested had Employee remained employed by the Company during the twelve (12) month period following\nEmployee’s Termination Date shall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such\nEquity Awards shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) With respect to any outstanding Equity Award that was subject to vesting in whole or in part based on\nachievement of performance objective(s), to the extent that the applicable performance period has expired on or before Employee’s Termination\nDate, the performance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more\nfuture dates, the portion of such Equity Award that would have vested had Employee remained employed by the Company during the twelve (12)\nmonth period following Employee’s Termination Date shall become fully vested and exercisable as of Employee’s Termination Date. Such\nEquity Award shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(vi) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany. The payment of amounts described in this Section 9(a)(vi) are not conditioned upon the Release becoming effective unless the\napplicable benefit plan or program provides otherwise.\n(b) Coincident with or within One Year After a Change in Control. In the event that Employee suffers an Involuntary\nTermination that becomes effective coincident with, or within the twelve (12) month period immediately after, the first occurrence of a Change in\nControl following the date of this Agreement, Employee shall be entitled to the payments and benefits described below in this Section 9(b) in\nlieu of, and not in addition to, the payments and benefits described in Section 9(a); provided that Employee executes and does not revoke the\nRelease (as defined in Section 13) and the Release first becomes effective:\n(i) Employee shall receive a cash payment equal to two (2) times Employee’s Annual Base Salary, such amount to\nbe paid in regular installments in accordance with the Company’s normal payroll practices over a period of twenty-four (24) months,\ncommencing on or as soon as practicable after the date the Release becomes effective and within thirty-five (35) days following Employee’s\nTermination Date.\n(ii) Employee shall receive a cash payment equal to two (2) times the amount of the Employee’s target annual bonus\nfor the performance year in which the Employee’s Termination Date occurs. Payment shall be made in a lump sum payment on or as soon as\npracticable after the date the Release becomes effective and within thirty-five (35) days following Employee’s Termination Date.\n(iii) The Company shall, for a period of eighteen (18) months following the date of Employee’s Termination of\nEmployment, pay Employee each month an amount equal to the monthly COBRA medical insurance cost under the Company’s group medical\nplan for Employee and, where applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable,\nEmployee’s spouse and dependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further\nthat the payments specified under this Section 9(b)(iii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare\ncontinuation coverage terminates for any reason before the expiration of the eighteen (18)-month\n4-\nperiod. All Company payments under this Section 9(a)(iii) to the Employee can be used for any purpose and will be reported as taxable\npayments.\n(iv) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with\nthe Company shall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such vested Equity\nAwards shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) Outstanding Equity Awards the vesting of which is conditioned, in whole or in part, upon the achievement of\nperformance objectives shall become vested and exercisable as follows:\n(A) To the extent that the applicable performance period has expired on or before Employee’s Termination Date, the\nperformance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more\nfuture dates, such Equity Award shall become fully vested and exercisable as of Employee’s Termination Date.\n(B) To the extent that the applicable performance period has not expired on or before Employee’s Termination Date,\nthe Company shall pro-rate the performance objective(s) for the portion of the performance period that has transpired up to the date of\nclosing of the Change in Control, make a good faith determination of the level of achievement of such pro-rated performance objective\nas of such closing date, and treat as fully vested and exercisable a proportionate amount of such Equity Award that corresponds with the\nlevel of achievement of the pro-rated performance objective, disregarding any future service conditions that otherwise would apply to\nsuch Equity Award.\n(vi) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany. The payment of amounts described in this Section 9(b)(vi) are not conditioned upon the Release becoming effective unless the\napplicable benefit plan or program provides otherwise.\n(c) Notice of Termination. Any termination on account of this Section 9 shall be communicated by a Notice of Termination to\nthe other Party hereto given in accordance with Section 26 hereof.\n(d) Definition of Change in Control. For purposes of this Agreement, the term “Change in Control” shall have the meaning\nset forth in the Company’s 2017 Incentive Award Plan, as amended from time to time or any successor plan in effect as of Employee’s\nTermination Date.\n10. Resignation for Good Reason. If Employee provides notice of his intent to terminate for Good Reason, then, subject to the\nexpiration of the cure period and Employee’s actual termination as described below, such resignation shall be deemed an Involuntary Termination\nfor purposes of this Agreement and Employee shall be entitled to the payments and benefits described in Section 9 subject to the requirements set\nforth in this Agreement, including Section 13. Employee must provide written notice to the Company of his intent to terminate his employment\nfor Good Reason within thirty (30) days of the action or omission giving rise to such claim of Good Reason. Thereafter, the Company shall have\na period of thirty (30) days within which it may correct the event or action that constitutes the grounds for Good Reason as set forth in\nEmployee’s notice of termination. If the Company does not correct the event or action prior to the expiration of the foregoing cure period,\nEmployee must terminate his employment for Good Reason within thirty (30) days after the expiration of the cure period, in order for the\ntermination to be considered a Good Reason termination under this Agreement.\n11. Termination Due to Death. If Employee’s employment with the Company is terminated due to death, Employee shall be entitled to\nthe payments and benefits described below, provided that Employee’s estate executes and does not revoke the Release (as defined in Section 13)\nand the Release first becomes effective:\n(a) Employee shall receive a cash payment equal to (1) times the amount of the Employee’s target annual bonus for the\nperformance year in which the Employee’s Termination Date occurs, pro-rated based on\n-5-\nthe portion of such year that has elapsed as of Employee’s Termination Date. Payment shall be made in a lump sum payment on or as soon as\npracticable after the date the Release becomes effective and within thirty-five days following Employee’s Termination Date.\n(b) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the\nCompany shall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such vested Equity Awards\nshall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(c) Outstanding Equity Awards the vesting of which is conditioned, in whole or in part, upon the achievement of performance\nobjectives shall become vested and exercisable as follows:\n(i) To the extent that the applicable performance period has expired on or before Employee’s Termination Date, the\nperformance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future\ndates, such Equity Award shall become fully vested and exercisable as of Employee’s Termination Date.\n(ii) To the extent that the applicable performance period has not expired on or before Employee’s Termination Date,\nthe Company shall pro-rate the performance objective(s) for the portion of the performance period that has transpired up to Employee’s\nTermination Date, make a good faith determination of the level of achievement of such pro-rated performance objective as of such Termination\nDate, and treat as fully vested and exercisable a proportionate amount of such Equity Award that corresponds with the level of achievement of\nthe pro-rated performance objective, disregarding any future service conditions that otherwise would apply to such Equity Award.\n(d) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany. The payment of amounts described in this Section 11(d) are not conditioned upon the Release becoming effective unless the applicable\nbenefit plan or program provides otherwise.\n12. Termination Due to Disability or For Cause. If Employee’s employment with the Company is terminated by the Company due to\nDisability or for Cause, Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany; all other Company obligations to Employee will be extinguished as of the Termination Date.\n13. Release. Notwithstanding the foregoing, no payments or benefits shall be provided under Sections 9, 10 and 11, as applicable\n(except for those payments that are owed pursuant to applicable law and/or are specifically not conditioned upon the execution of a release by\nEmployee or Employee’s estate, as applicable), unless Employee or his estate, if applicable, executes, and does not revoke, the Company’s then\nstandard written general release (the “Release”) of any and all claims against the Company and all related parties with respect to all matters\narising out of Employee’s employment by the Company (other than any entitlements under the terms of this Agreement or under any other plans\nor programs of the Company in which Employee participated and under which Employee has accrued and earned a benefit) or the termination\nthereof. The Company will provide Employee with the form of release agreement within seven days after Employee’s separation from service. To\nbe entitled to the severance or other benefits, Employee must execute and deliver to the Company the release agreement on or before the last day\nof the minimum required waiver consideration period provided under the Age Discrimination in Employment Act or other applicable law or such\nlater date specified in the release agreement. If Employee timely delivers an executed release agreement to the Company, and Employee does not\nrevoke the release agreement during the minimum revocation period required under applicable law, if any, the severance or other benefits shall be\npaid or commence being paid, as specified in this Agreement, subject to any delay required pursuant to Section 32(b) of this Agreement. If,\nhowever, the period during which Employee has discretion to execute or revoke the release agreement straddles two calendar years, the cash\nseverance or other benefits shall be paid or commence being paid, as applicable, as soon as practicable in the second of the two calendar years,\nregardless of within which calendar\nyear Employee actually delivers the executed release agreement to the Company, subject to the release agreement first becoming effective.\nConsistent with section 409A of the Code, Employee may not, directly or indirectly, designate the calendar year of payment. Nothing in this\nSection 13 shall be construed to alter the terms of this Agreement that condition Employee’s entitlement to any severance or other benefits upon\nEmployee’s compliance with the restrictive covenants and any other terms and conditions specified in this Agreement.\n14. Other Payments. Any payments and benefits that become due under Sections 9, 10 and 11 hereof shall be in addition to (but not in\nduplication of) and not in lieu of any payments and benefits due to Employee under any other plan, policy or program of the Company, except\nthat Employee shall not be entitled to any payments and benefits under the Company’s then current severance pay policies.\n15. No Mitigation. Employee shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by\nseeking other employment or otherwise, nor shall the amount of any payment or benefit provided for herein be reduced by any compensation\nearned by other employment or otherwise; provided, however, that any obligation of the Company to make the payments described in Sections\n9(a)(iii) and 9(b)(iii) shall cease upon Employee becoming covered under a healthcare plan of another employer.\n16. Non-Exclusivity of Rights. Except as provided in Section 14, nothing in this Agreement shall prevent or limit Employee’s\n[continuing or] future participation in or rights under any benefit, bonus, incentive or other plan or program provided by the Company or any of\nits subsidiaries or affiliates and for which Employee may qualify.\n17.  No Set-Off. Other than with respect to the Recoupment Policy (as hereinafter defined), the Company’s obligation to make the\npayments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any circumstances,\nincluding, without limitation, any set-off, counterclaim, recoupment, defense or other right that the Company may have against Employee or\nothers.\n18. Taxes.\n(a) All payments under this Agreement shall be made subject to applicable tax withholding, and the Company shall withhold\nfrom any payments under this Agreement all federal, state and local taxes as the Company is required to withhold pursuant to any law or\ngovernmental rule or regulation. Employee shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due\nwith respect to any payment received under this Agreement, including, without limitation, any excise tax imposed by Section 4999 of the Code.\n(b) If the payments and benefits received or to be received by Employee in connection with a Change in Control or the\ntermination of Employee’s employment (whether payable pursuant to the terms of this Agreement (“Contract Payments”) or any other plan,\narrangement or agreement with the Company or any affiliate (collectively with the Contract Payments, the “Total Payments”), would constitute a\n“parachute payment” under Section 280G of the Code, then the Total Payments shall be reduced, in the manner set forth below, by the minimum\namount necessary to result in no portion of the Total Payments being non-deductible to the Company pursuant to Section 280G of the Code or\nsubject to the excise tax imposed under Section 4999 of the Code.\n(c) All determinations required to be made under this Section 18, including whether a reduction in Total Payments is\nrequired, the amount of any such reduction and the assumptions to be utilized in arriving at such determination, shall be made by an accounting\nor law firm of recognized standing reasonably selected by the Company (the “Firm”), which may be, but will not be required to be, the\nCompany’s independent auditors. The Firm shall submit its determination and detailed supporting calculations to both Employee and the\nCompany within fifteen (15) days after receipt of a notice from either the Company or Employee that Employee may receive payments that may\nbe “parachute payments.” If the Firm determines that a reduction is required by this Section 18, the Contract Payments consisting of cash\nseverance shall be reduced to the extent necessary so that no portion of the Total Payments shall be subject to the excise tax imposed by section\n4999 of the Code, and the Company shall pay such reduced amount to Employee in accordance with the terms of this Agreement. If additional\nContract Payments must be reduced pursuant to this Section 18 after the cash severance has been reduced to zero, the Contract Payments\nallocable to performance-vested Equity Awards shall next be reduced, followed by the\n_7-\nContract Payments allocable to time-vested Equity Awards, to the extent necessary to satisfy the requirements of this Section 18.\n(d) Employee and the Company shall each provide the Firm access to and copies of any books, records, and documents in the\npossession of Employee or the Company, as the case may be, reasonably requested by the Firm, and otherwise cooperate with the Firm in\nconnection with the preparation and issuance of the determinations and calculations contemplated by this Section 18. The fees and expenses of\nthe Firm for its services in connection with the determinations and calculations contemplated by this Section 18 shall be borne by the Company.\n19. Confidential Information. Employee agrees that Employee’s services to the Company [have been and will continue to be][will be]\nof a special, unique and extraordinary character, and that Employee’s position places Employee in a position of confidence and trust with the\nCompany’s customers and employees. Employee also recognizes that Employee’s position with the Company will give Employee substantial\naccess to Confidential Information (as defined below), the disclosure of which to competitors of the Company would cause the Company to\nsuffer substantial and irreparable damage. Employee recognizes, therefore, that it is in the Company’s legitimate business interest to restrict\nEmployee’s use of Confidential Information for any purposes other than the discharge of Employee’s employment duties at the Company, and to\nlimit any potential appropriation of Confidential Information by Employee for the benefit of the Company’s competitors and to the detriment of\nthe Company. Accordingly, Employee agrees as follows:\n(a) Employee will not at any time, whether during or after the termination of Employee’s employment, reveal to any person\nor entity any of the trade secrets or confidential information of the Company or of any third party that the Company is under an obligation to\nkeep confidential (including but not limited to trade secrets or confidential information respecting inventions, products, designs, methods, know-\nhow, techniques, systems, processes, software programs, works of authorship, customer lists, projects, plans and proposals) (“Confidential\nInformation”), except as may be required in the ordinary course of performing Employee’s duties as an employee of the Company, and Employee\nshall keep secret all matters entrusted to Employee and shall not use or attempt to use any such information in any manner that may injure or\ncause loss or may be calculated to injure or cause loss whether directly or indirectly to the Company. By way of example and not limitation,\nConfidential Information also includes any and all information, whether or not meeting the legal definition of a trade secret, concerning the\nCompany’s actual, planned or contemplated: (i) marketing plans, business plans, strategies, forecasts, budgets, projections and costs; (ii)\npersonnel information; (iii) customer, vendor and supplier lists; (iv) customer, vendor and supplier needs, transaction histories, contacts,\nvolumes, characteristics, agreements and prices; (v) promotions, operations, sales, marketing, and research and development; (vi) business\noperations, internal structures and financial affairs; (vii) software and operating systems and procedures; (viii) pricing structure of the Company’s\nservices and products; (ix) proposed services and products; (x) contracts with other parties; (xi) performance characteristics of the Company’s\nproducts; and (xii) Inventions and Works (each as defined in Section 20). Confidential Information also includes any and all information of\nCompany’s clients and customers that is deemed confidential by such clients and customers (whether past, present or potential), including, but\nnot limited to: marketing tools, inventions, processes, contact lists, materials, software program code, logic diagrams, flow charts, procedural\ndiagrams, computer programming techniques and know how, maps and any documentation related thereto.\n(b) The above restrictions shall not apply to: (i) information that at the time of disclosure is in the public domain through no\nfault of Employee; (ii) information received from a third party outside of the Company that was publicly disclosed without a breach of any\nconfidentiality obligation; or (iii) information approved for release by written authorization of the Company. In addition, in the event that\nEmployee is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative\ndemand or similar process) to disclose any of the Confidential Information, it is agreed that Employee will provide the Company with prompt\nnotice of such request(s) so that the Company may seek an appropriate protective order or other appropriate remedy and/or waive compliance\nwith the confidentiality provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or the Company\ngrants a waiver hereunder, Employee may furnish that portion (and only that portion) of the Confidential Information that Employee is legally\n-8-\ncompelled to disclose and will exercise its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded any\nConfidential Information so furnished.\n(c) Further, Employee agrees that during Employee’s employment Employee shall not take, use or permit to be used any\nnotes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials of any\nnature relating to any matter within the scope of the business of the Company or concerning any of its dealings or affairs otherwise than for the\nbenefit of the Company. Employee further agrees that Employee shall not, after the termination of Employee’s employment, use or permit to be\nused any such notes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other\nmaterials, it being agreed that all of the foregoing shall be and remain the sole and exclusive property of the Company and that, immediately\nupon the termination of Employee’s employment, Employee shall deliver all of the foregoing plus any other Confidential Information, and all\ncopies thereof, to the Company, at its main office.\n(d) Employee agrees that upon the termination of Employee’s employment with the Company, Employee will not take or\nretain without written authorization any documents, files or other property of the Company, and Employee will return promptly to the Company\nany such documents, files or property in Employee’s possession or custody, including any copies thereof maintained in any medium or format.\nEmployee recognizes that all documents, files and property that Employee has received and will receive from the Company, including but not\nlimited to scientific research, customer lists, handbooks, memoranda, product specifications, and other materials (with the exception of\ndocuments relating to benefits to which Employee might be entitled following the termination of Employee’s employment with the Company),\nare for the exclusive use of the Company and employees who are discharging their responsibilities on behalf of the Company, and that Employee\nhas no claim or right to the continued use, possession or custody of such documents, files or property following the termination of Employee’s\nemployment with the Company.\n(e) Employee acknowledges that the Company has provided Employee with the following notice of immunity rights in\ncompliance with the requirements of the Defend Trade Secrets Act of 2016: (i) Employee shall not be held criminally or civilly liable under any\nU.S. federal or state trade secret law for the disclosure of Confidential Information that is made in confidence to a U.S. federal, state or local\ngovernment official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law; (ii) Employee shall not be\nheld criminally or civilly liable under any U.S. federal or state trade secret law for the disclosure of Confidential Information that is made in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; and (iii) if Employee files a lawsuit for\nretaliation by the Company for reporting a suspected violation of law, Employee may disclose the Confidential Information to Employee’s\nattorney and use the Confidential Information in the court proceeding, if Employee files any document containing the Confidential Information\nunder seal, and does not disclose the Confidential Information, except pursuant to court order. However, under no circumstance will Employee be\nauthorized to disclose any information covered by attorney-client privilege or attorney work product of the Company without prior written\nconsent of the Company’s General Counsel or other officer designated by the Company. Notwithstanding anything to the contrary contained\nherein, no provision of this Agreement shall be interpreted so as to impede Employee (or any other individual) from reporting possible violations\nof U.S. federal law or regulation to any governmental agency or entity, including but not limited to the U.S. Department of Justice, the U.S.\nSecurities and Exchange Commission, the U.S. Congress, and any agency Inspector General of the U.S. government, or making other disclosures\nunder the whistleblower provisions of U.S. federal law or regulation. Employee does not need the prior authorization of the Company to make\nany such reports or disclosures and Employee shall not be not required to notify the Company that such reports or disclosures have been made.\n20. Intellectual Property.\n(@) Employee agrees to disclose fully, promptly, and in writing to the Company any and all Inventions and Works (each as\ndefined below) that are conceived, made, reduced to practice, developed, authored, created, drawn or written at any time while Employee is\nemployed by the Company and for a period of six (6) months thereafter. Employee will generate and provide to the Company adequate and\ncurrent written records of all\nInventions and Works in the form of notes, sketches, drawings, reports, flow charts, procedural diagrams, logic diagrams, software program code,\nprocedural diagrams, computer programming techniques or other documents relating thereto or in such other form as will be requested by the\nCompany, which records and any copies thereof will be and will remain the exclusive property of the Company and will be available to the\nCompany at all times, along with all available information relating thereto (with all necessary plans and models) to the Company.\n(b) The Company and Employee agree that “Inventions,” is defined in this Agreement to include any and all new or useful\nideas, developments, discoveries, improvements, designs, formulas, modifications, trademarks, service marks, trade secrets, and other intellectual\nproperty, whether patentable or not (including without limitation any technology, computer programs, software, software program code, logic\ndiagrams, flow charts, procedural diagrams, computer programming techniques, test, concept, idea, process, method, composition of matter,\nformula or technique), and all know-how related thereto, that Employee conceives, makes, reduces to practice, or develops, solely or jointly with\nothers (i) that relate to the actual or contemplated business, work or activities of the Company, (ii) that result from or are suggested by any work\nwhich Employee [has done or] may do on behalf of the Company, or by any information that Employee may receive by virtue of Employee’s\nemployment by the Company, or (iii) that are developed, tested, improved or investigated either in part or entirely on time for which Employee\nwas paid by the Company, or with the use of premises, equipment or property provided, owned, leased, or contracted for by or on behalf of the\nCompany.\n(c) The Company and Employee agree that “Works” is defined in this Agreement to include any and all materials for which\ncopyright protection may be obtained, including without limitation literary works (including books, pamphlets, articles and other writings), mask\nworks, artistic works (including designs, graphs, drawings, blueprints and other graphic works), computer programs, software program code,\nlogic diagrams, flow charts, procedural diagrams, computer programming, compilations, recordings, photographs, motion pictures and other\naudio-visual works that Employee authors, conceives, creates, draws, makes, or writes, solely or jointly with others (i) that relate to the actual or\ncontemplated business, work or activities of the Company, (ii) that result from or are suggested by any work which Employee has done or may\ndo on behalf of the Company, or by any information that Employee may receive by virtue of Employee’s employment by the Company, or\n(iii) that are developed, tested, improved or investigated either in part or entirely on time for which Employee was paid by the Company, or with\nthe use of premises, equipment or property provided, owned, leased, or contracted for, by, or on behalf of the Company.\n(d) Employee agrees to assign, transfer and convey, and hereby assigns, transfers and conveys to the Company all of the\nrights, titles and interests in and to any and all such Inventions and Works that Employee [has or] may acquire in such Inventions or Works that\nare conceived, made, reduced to practice, developed, authored, created, drawn or written at any time while Employee is employed by the\nCompany and for a period of six (6) months thereafter. Employee agrees that the Company will be the sole owner of all patents, copyrights,\ntrademarks and other intellectual property rights in connection therewith, and agrees to take all such actions as may be requested by the Company\nduring Employee’s employment with the Company and at any time thereafter, with respect to any such Inventions or Works to confirm or\nevidence such assignment, transfer, conveyance or ownership, and to assist in the Company’s maintenance, enforcement, license, assignment,\ntransfer, or conveyance of rights in respect of the Inventions or Works.\n(e) By way of example and not limitation, at any time and from time to time, upon the request of the Company, Employee\nagrees to execute, acknowledge, swear to, seal and deliver to the Company, any and all lawful instruments, documents and papers, give evidence\nand do any and all other lawful acts that, in the opinion of the Company, are or may be necessary or desirable to document such assignment,\ntransfer and conveyance or to enable the Company to file and prosecute applications for and to acquire, maintain and enforce any and all patents,\ntrademarks, copyrights and other property rights under United States, local, state or foreign law with respect to any such Inventions or Works or\nto obtain any extension, validation, reissue, continuance or renewal of any such patent, trademark, copyright, or other intellectual property right.\nBy way of further example and not limitation, Employee agrees to meet with the Company representatives or attorneys for the purpose of\ninitiating, maintaining or defending litigation, administrative or other proceedings; and to participate fully in litigation, administrative or other\nproceedings as requested by the Company. In the event that the Company may be unable, for\n-10-\nany reason whatsoever, after reasonable effort, to secure Employee’s signature on any patent, copyright, trademark or other intellectual property\napplication or other papers, Employee hereby irrevocably designates and appoints the Company and its duly authorized officers and agents, as\nEmployee’s agent and attorney-in-fact to act for and on behalf of Employee to execute, acknowledge, swear to, seal and deliver to the Company\nand to file any such application or applications or other papers, and to do all other lawfully permitted acts to further the provisions of this Section\n20 of this Agreement.\n() The Company agrees to reimburse Employee for reasonable expenses incurred by Employee in complying with the\nprovisions of Sections 20(d) and 20(e) of this Agreement. The Company and Employee agree that Employee is not entitled to additional\ncompensation beyond that paid to Employee for the period of time that he is employed by the Company, which compensation, along with the\nCompany’s understandings set forth in this Agreement, is expressly acknowledged to be adequate consideration for all of the Employee promises\nand obligations set forth in this Agreement.\n(g) Employee expressly acknowledges and states that all Works that are made by Employee (solely or jointly with others) are\nbeing created at the instance of the Company and are “works made for hire,” as that term is defined in the Copyright Act of 1976, 17 USC § 101.\nIn the event that such laws are inapplicable or in the event that any such Works, or any part thereof, are determined by a court of competent\njurisdiction not to be a work made for hire, this Agreement will operate as an irrevocable and unconditional assignment by Employee to the\nCompany of all Employee’s right, title and interest (including, without limitation, all rights in and to the copyrights throughout the world,\nincluding the right to prepare derivative works and the rights to all renewals and extensions) in the Works in perpetuity.\n(h) Employee represents that Attachment A to this Agreement describes all inventions and works, whether patentable or not,\nthat have been conceived, made, reduced to practice, developed, authored, created, drawn or written prior to Employee’s employment by the\nCompany; provided, however, that, Employee has not disclosed in Attachment A information that is a trade secret belonging to another, or that is\nthe subject of a contract preventing Employee’s disclosure of the information to the Company.\n21. Non-Competition and Non-Solicitation. In further consideration of the compensation to be paid to Employee hereunder, Employee\nacknowledges that during the course of Employee’s employment with the Company, the Company will provide Employee Confidential\nInformation, which Employee promises to not disclose. Further, Employee will become and/or remain familiar with the Company’s trade secrets\nand with other Confidential Information concerning the Company and that Employee’s services shall be of special, unique and extraordinary\nvalue to the Company, and therefore, the Employee agrees that some restrictions on Employee’s activities during and after Employee’s\nemployment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company:\n(a) During the period of Employee’s employment by the Company and, if Employee’s employment with the Company\nterminates for any reason, for a period of one (1) year thereafter (“Covenant Period”), except with the written consent of the Board, Employee\nshall not directly or indirectly, own, control, finance or participate in the ownership, control or financing of, or be employed by or provide\nservices to, any Competitor. For the purposes of this Agreement, a “Competitor” is defined as a person, business or enterprise (including\ndivisions of persons, businesses and enterprises) that directly or indirectly engages in services of the type conducted, authorized, offered or\nprovided by the Company (the “Restricted Business”) in the Territory. Without limiting the foregoing, for purposes of this Agreement, each\nentity listed on Attachment B, as shall be modified from time to time by the Company upon written notice to Employee, shall constitute a\n“Competitor.” For purposes of this Agreement, “Territory” is defined as the territory or territories within which Employee actually worked, or in\nrespect of which Employee was involved in providing services, during the twelve (12) month period prior to Employee’s Termination Date.\nNotwithstanding the foregoing, nothing herein shall prevent Employee from providing services to, or being employed by, or owning, controlling,\nfinancing or participating in the ownership, control or financing of, any diversified entity or other person (other than the entities listed on\nAttachment B) that is engaged in the Restricted Business, so long as (i) the Restricted Business does not constitute greater than 25% of the\naggregate revenue of such diversified entity or other person and (ii) Employee is not employed within and does not have\n-11-\ninvolvement with business development or business strategy with respect to the Restricted Business. In further consideration for the Company’s\npromises herein, Employee agrees that during the Covenant Period, Employee will not directly or indirectly (i) solicit, entice, induce, cause,\nencourage or recruit any part-time or full-time employee, representative, consultant, customer, subscriber or supplier of the Company or its\nsubsidiaries or affiliates to work for, provide services to or do business with a third party other than the Company or its subsidiaries or affiliates\nor engage in any activity that would cause any employee, representative, consultant, customer, subscriber or supplier to violate any agreement\nwith the Company or its subsidiaries or affiliates or otherwise terminate or change its relationship with the Company or its subsidiaries or\naffiliates or (ii) hire any current or former part-time or full-time employee, representative or consultant of the Company or its Affiliates who was\nemployed or engaged by the Company or its subsidiaries or affiliates at any time during the twelve (12) month period prior to Employee’s\nTermination Date or who thereafter becomes employed or engaged by the Company or its subsidiaries or affiliates.\n(b) The foregoing restrictions shall not be construed to prohibit Employee’s ownership of less than one percent (1%) of any\nclass of securities of any corporation that is engaged in any of the foregoing businesses and has a class of securities registered pursuant to the\nSecurities Exchange Act of 1934, as amended, provided that such ownership represents a passive investment and that neither Employee nor any\ngroup of persons including Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees\nany of its financial obligations, otherwise takes any part in its business, other than exercising Employee’s rights as a stockholder, or seeks to do\nany of the foregoing.\n22. Employee Representations.\n(a) Employee represents and warrants that this Agreement and his employment by the Company does not conflict with and\nwill not be constrained by any prior business relationship or contract, that Employee does not possess trade secrets or other proprietary\ninformation arising out of any prior business relationship or contract that, in Employee’s best judgment would be utilized in connection with\nEmployee’s employment with the Company. Employee further agrees that he will not disclose any such trade secrets or other proprietary\ninformation to the Company or others.\n(b) Employee represents and warrants that (i) before signing this Agreement, he has read this Agreement and is entering into\nthis Agreement freely and with knowledge of its contents with the intent to be bound by it and the restrictions contained herein; (ii) Employee\nhas been advised by the Company to consult Employee’s own legal counsel in respect of this Agreement, and Employee has had full opportunity,\nprior to execution of this Agreement, to review thoroughly this Agreement with Employee’s counsel; (iii) the restrictions imposed on Employee\nby this Agreement are fair, reasonable and proper and required for the protection of the Company’s business interests, particularly its investments\nin Employee (e.g., Employee’s job knowledge and skills), its Confidential Information, as well as the goodwill developed, and its business\nrelationships, with its clients, customers and prospective clients and customers; (iv) the Company would not have entered into this Agreement in\nthe absence of such restrictions, and that any violation of any provision of Sections 19, 20 or 21 hereof will result in irreparable injury to the\nCompany; and (v) the restrictions imposed on Employee by this Agreement, particularly, the post-termination restrictions, shall not preclude\nEmployee from earning a living or engaging in Employee’s profession or trade, or pursuing a career or a business, in each case at the same\ngeneral level of economic benefit as is currently the case.\n23. Consequences of Breach of Covenants; Equitable Relief.\n(a) Employee agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity\nof proving actual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of Sections 19,\n20, and 21 hereof, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled. The\nperiod of the injunction shall be measured from the date of a court order granting the injunctive relief. In the event that any of the provisions of\nSections 19, 20, and 21 hereof should ever be adjudicated to exceed the time, geographic, service, or other limitations permitted by applicable\nlaw in any jurisdiction, then such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic, service, or other\nlimitations permitted by applicable law.\n-12-\n(b) Notwithstanding anything to the contrary herein, Employee acknowledges and agrees that the severance payments and\nbenefits provided herein are being provided by the Company to Employee, among other things, as additional consideration and solely for\nEmployee’s agreement with and adherence to the post-employment restrictive covenants in Section 21 (a)-(c) and Employee’s other promises,\ncovenants, commitments and obligations in this Agreement (including the releases granted in Section 13), the adequacy and sufficiency of which\nEmployee expressly acknowledges. Employee agrees that should the Company, in its sole discretion, deem Employee to be in violation of any\nprovision(s) in said Section 21 (a)-(c), the Company may immediately cease payment of all or any portion of the severance payments and\nbenefits provided hereunder. Employee acknowledges that the severance payments and benefits provided for herein are in addition to anything of\nvalue to which Employee was already entitled.\n(c) Employee irrevocably and unconditionally (i) agrees that any suit, action or other legal proceeding arising out of Section\n19, 20, and 21 hereof, including without limitation, any action commenced by the Company for preliminary and permanent injunctive relief or\nother equitable relief, may be brought in the United States District Court for the District of New Jersey, or if such court does not have jurisdiction\nor will not accept jurisdiction, in any court of general jurisdiction in New Jersey, (ii) consents to the non-exclusive jurisdiction of any such court\nin any such suit, action or proceeding, and (iii) waives any objection that Employee may have to the laying of venue of any such suit, action or\nproceeding in any such court. Employee also irrevocably and unconditionally consents to the service of any process, pleadings, notices or other\npapers in a manner permitted by the notice provisions of Section 26 hereof.\n24. Term of Agreement. This Agreement shall continue in full force and effect for the duration of Employee’s employment with the\nCompany; provided, however, that after the termination of Employee’s employment during the term of this Agreement, this Agreement shall\nremain in effect until all of the obligations of the Parties hereunder are satisfied or have expired.\n25. Successor Company. The Company shall require any successor or successors (whether direct or indirect, by purchase, merger,\nconsolidation or otherwise) to all or substantially all of the business and/or assets of the Company, by agreement in form and substance\nsatisfactory to Employee, to acknowledge expressly that this Agreement is binding upon and enforceable against the Company in accordance\nwith the terms hereof, and to become jointly and severally obligated with the Company to perform this Agreement in the same manner and to the\nsame extent that the Company would be required to perform if no such succession or successions had taken place. Failure of the Company to\nobtain such agreement prior to the effectiveness of any such succession shall be a breach of this Agreement. As used in this Agreement, the\nCompany shall mean the Company as hereinbefore defined and any such successor or successors to its business and/or assets, jointly and\nseverally.\n26. Notice. All notices and other communications required or permitted hereunder or necessary or convenient in connection herewith\nshall be in writing and shall be delivered personally or mailed by registered or certified mail, return receipt requested, or by overnight express\ncourier service, as follows:\nIf to the Company, to:\nCognizant Technology Solutions Corporation\n500 Frank W. Burr Blvd.\nTeaneck, NJ 07666\nAttn: General Counsel\nIf to Employee, to:\n-13-\nor to such other names or addresses as the Company or Employee, as the case may be, shall designate by notice to the other Parties hereto in the\nmanner specified in this Section; provided, however, that if no such notice is given by the Company following a change in control, notice at the\nlast address of the Company or to any successor pursuant to this Section 26 shall be deemed sufficient for the purposes hereof. Any such notice\nshall be deemed delivered and effective when received in the case of personal delivery, five days after deposit, postage prepaid, with the U.S.\nPostal Service in the case of registered or certified mail, or on the next business day in the case of overnight express courier service.\n27. Governing Law. This Agreement shall be governed by and interpreted under the laws of the State of New Jersey without giving\neffect to any conflict of laws provisions.\n28. Contents of Agreement, Amendment and Assignment.\n \n(a) This Agreement, including the Code of Ethics, supersedes all prior agreements with respect to the subject matter hereof,\nsets forth the entire understanding between the Parties hereto with respect to the subject matter hereof and cannot be changed, modified, extended\nor terminated except upon written amendment executed by Employee and executed on the Company’s behalf by a duly authorized officer, except\nfor revisions or additions to Attachment B, which may be unilaterally modified by the Company upon written notice to Employee[; provided,\nhowever, that this Agreement, except as expressly set forth in Section 9, does not supersede, modify or change any existing written award\nagreements regarding stock options, stock appreciation rights, restricted stock awards, restricted stock units, performance awards, performance\nunits or other stock-based awards issued to Employee prior to the effective date of this Agreement]. The provisions of this Agreement may\nprovide for payments to Employee under certain compensation or bonus plans under circumstances where such plans would not provide for\npayment thereof. It is the specific intention of the Parties that the provisions of this Agreement shall supersede any provisions to the contrary in\nsuch plans, and such plans shall be deemed to have been amended to correspond with this Agreement without further action by the Company, the\nCompany’s Board of Directors or the Board unless such amendment would contravene the provisions of section 409A of the Code and result in\nthe imposition of additional taxes under section 409A of the Code upon Employee.\n(b) Nothing in this Agreement shall be construed as giving Employee any right to be retained in the employ of the Company,\nor as changing or modifying the “at will” nature of Employee’s employment status.\n(c) All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by\nthe respective heirs, representatives, successors and assigns of the Parties hereto, except that the duties and responsibilities of Employee and the\nCompany hereunder shall not be assignable in whole or in part by the Company. If Employee should die after Employee’s Termination Date and\nwhile any amount payable hereunder would still be payable to Employee hereunder if Employee had continued to live, all such amounts, unless\notherwise provided herein, shall be paid in accordance with the terms of this Agreement to Employee’s devises, legates or other designees or, if\nthere is no such designee, to Employee’s estate.\n29. Severability. If any provision of this Agreement is declared illegal, invalid, or otherwise unenforceable by a court of competent\njurisdiction, such provision shall be reformed, if possible, to the extent necessary to render it legal, valid, and enforceable, or otherwise deleted,\nand the remainder of the terms of this Agreement shall not be affected except to the extent necessary to reform or delete such illegal, invalid, or\nunenforceable provision.\n30. Remedies Cumulative; No Waiver. No right conferred upon the Parties by this Agreement is intended to be exclusive of any other\nright or remedy, and each and every such right or remedy shall be cumulative and shall be in addition to any other right or remedy given\nhereunder or now or hereafter existing at law or in equity. No delay or omission by a Party in exercising any right, remedy or power hereunder or\nexisting at law or in equity shall be construed as a waiver thereof.\n31. Miscellaneous. All section headings are for convenience only. This Agreement may be executed in several counterparts, each of\nwhich is an original. It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any of the\nother counterparts.\n-14-\n32. Section 409A.\n(a) Interpretation. This Agreement is intended to comply with the requirements of Section 409A of the Code to the extent\napplicable or to be exempt from Section 409A of the Code pursuant to the “short-term deferral exception” under Treas. Reg. section 1.409A-1(b)\n(4) or the “separation pay exception” under Treas. Reg. Section 1.409A-1(b)(9)(iii), and shall in all respects be administered and construed in\naccordance with Section 409A of the Code. If any payment or benefit hereunder cannot be provided or made at the time specified herein without\nincurring sanctions on Employee under Section 409A of the Code, then such payment or benefit shall be provided in full at the earliest time\nthereafter when such sanctions will not be imposed. For purposes of Section 409A of the Code, all payments to be made upon a Termination of\nEmployment under this Agreement may only be made upon a “separation from service” (within the meaning of such term under Section 409A of\nthe Code), each payment made under this Agreement shall be treated as a separate payment, the right to a series of installment payments under\nthis Agreement is to be treated as a right to a series of separate payments, and if a payment is not made by the designated payment date under this\nAgreement, the payment shall be made by December 31 of the calendar year in which the designated date occurs. To the extent that any payment\nprovided for hereunder would be subject to additional tax under Section 409A of the Code, or would cause the administration of this Agreement\nto fail to satisfy the requirements of Section 409A of the Code, such provision shall be deemed null and void to the extent permitted by\napplicable law, and, to the extent applicable, any such amount shall be payable in accordance with Section 32(b). In no event shall the Employee,\ndirectly or indirectly, designate the calendar year of payment. Nothing herein shall be construed as having modified the time and form of\npayment of any amounts or payments of “deferred compensation” (as defined under Treas. Reg. Section 1.409A-1(b)(1), after giving effect to the\nexemptions in Treas. Reg. Sections 1.409A-1(b)(3) through (b)(12)) that were otherwise payable pursuant to the terms of any agreement between\nthe Company and Employee in effect on or after January 1, 2005 and prior to the date of this Agreement.\n(b) Payment Delay. Notwithstanding anything herein to the contrary, if it is necessary to postpone the commencement of any\npayments or benefits otherwise payable under this Agreement as a result of Employee’s “separation from service” with the Company to prevent\nthe imposition of any accelerated or additional tax under Section 409A of the Code, then the Company will postpone the commencement of the\npayment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to\nEmployee) that are not otherwise paid within the “short-term deferral exception” under Treas. Reg. Section 1.409A-1(b)(4) and the “separation\npay exception” under Treas. Reg. Section 1.409A-1(b)(9)(iii), until the first payroll date that occurs after the date that is six months following\nEmployee’s “separation of service” with the Company. If any payments are postponed due to such requirements, such postponed amounts will be\npaid to Employee in a lump sum on the first payroll date that occurs after the date that is six months following Employee’s “separation of\nservice” with the Company. If Employee dies during the postponement period prior to the payment of the postponed amount, the amounts\nwithheld on account of Section 409A of the Code shall be paid to the personal representative of Employee’s estate within sixty (60) days after the\ndate of the Employee’s death.\n(c) Reimbursements. All reimbursements provided under this Agreement shall be made or provided in accordance with the\nrequirements of Section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred\nduring Employee’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for\nreimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement\nof an eligible expense will be made on or before the last day of the taxable year following the year in which the expense is incurred, and (iv) the\nright to reimbursement is not subject to liquidation or exchange for another benefit.\n33. Recoupment Policy. Employee acknowledges that Employee shall be subject to and hereby agrees to abide by the terms of any\nclawback or recoupment policy that the Company has adopted or may hereafter adopt, as may be amended from time to time, with or without\nnotice (the “Recoupment Policy”) to further the Company’s interests in enhancing its corporate governance practices and/or to comply with\napplicable law, rules or regulations promulgated by the Securities and Exchange Commission or the rules of the national securities exchange on\nwhich shares of the common stock of the Company are listed for trade. Employee understands that pursuant to the Recoupment Policy, the\nCompany may seek to recoup all or part of any severance payments, bonus or other\n-15-\nincentive compensation paid to certain officers and former officers, including Equity Awards, in the event that the Company is required to restate\nits financial statements. In consideration of the [continued] benefits to be received from the Company (or a subsidiary) and the right to participate\nin, and receive future awards under, the Company’s cash and equity-based incentive programs, Employee hereby acknowledges, understands and\nagrees that:\n(@) The Recoupment Policy applies to severance, cash bonuses and other incentive compensation, including Equity Awards,\npaid or awarded to Employee prior to or after the date on which the Recoupment Policy is adopted, and Employee agrees that, to the extent\nprovided in the Recoupment Policy, the Recoupment Policy shall apply to equity and other award agreements outstanding as of the date of this\nAgreement or hereafter executed, and such agreements shall be deemed amended by, and to incorporate, the terms of the Recoupment Policy\neven if the Recoupment Policy is not explicitly referenced therein;\n(b) The Company shall be fully entitled to enforce the Recoupment Policy against Employee in accordance with its terms,\nand Employee promptly shall comply with any demand authorized by the Board of Directors of the Company pursuant to the terms of the\nRecoupment Policy for repayment, return or rescission of, severance payments, a cash bonus or other incentive compensation, including Equity\nAwards, subject to the Recoupment Policy; and\n(c) Nothing in this acknowledgement shall be construed to expand the scope or terms of the Recoupment Policy, and\nEmployee is not waiving any defenses Employee may have in the event of an action for recoupment of compensation under the Recoupment\nPolicy, other than (i) waiving any defense regarding the retroactive application of the Recoupment Policy to prior or existing payments or awards\nand (ii) waiving any claim that the integration clause of any agreement excludes the application of the Recoupment Policy.\n[Signature Page Follows]\n-16-\nIN WITNESS WHEREOQF, the undersigned, intending to be legally bound, have executed this Agreement as of the date first above\nwritten.\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nName:\nTitle:\n[NAME OF EXECUTIVE]\n-17-\nATTACHMENT A\n1. The following is a complete list of all inventions and works that have been conceived, made, reduced to practice, developed,\nauthored, created, drawn or written by me alone or jointly with others prior to my engagement by the Company.\n[0 None.\n \n \n \n \n \nU Due to a preexisting contract with another party, I cannot disclose certain Inventions or Works that would otherwise be\nincluded on the above-described list.\n[0 Additional sheets are attached.\n(number)\nEMPLOYEE:\nSignature:\nName:\n(Print)\nTitle:\nDate:\n-18-\nATTACHMENT B - List of Direct Competitors N AN\nInternational Business Machines Corporation\nAccenture LTD\nCap Gemini S.A.\nTata Consultancy Services\nInfosys Limited\nWipro Limited\nHCL Technologies Limited\nDXC Technology Company\n-19-	EX-10.3 2 ctshexhibit10312312017.htr EXHIBIT 10.3\nEXHIBIT 10.3\nAMENDED AND RESTATED EXECUTIVE EMPLOYMENT AND NON-DISCLOSURE, NON-COMPETITION, AND INVENTION\nASSIGNMENT AGREEMENT\nThis Amended and Restated Executive Employment and Non-Disclosure, Non-Competition, and Invention Assignment\nAgreement (this "Agreement") is made as of the day of 2018 (the "Effective Date") by and between Cognizant Technology Solutions\nCorporation, a Delaware corporation (the "Company" (where applicable, the definition of Company shall include the Company's subsidiaries and\naffiliates and any successors or assigns)), and\n("Employee").\n[WHEREAS, Employee is currently employed by the Company as its\n[and]]\nWHEREAS, the Company desires to [continue to] retain the services of Employee; [and]\n[WHEREAS, the Parties desire to amend and restate, in its entirety, the parties' prior agreements pertaining to Employee's\nemployment, and set forth the new terms and conditions of Employee's employment by the Company.]\nNOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth and\nintending to be legally bound hereby, the Company and Employee (individually a "Party" and together, the "Parties") agree as follows:\n1.\nDefinitions.\n(a) "Annual Base Salary." shall mean the rate of annual base salary paid or payable to Employee by the Company (including\nauthorized deferrals and salary reduction amounts) immediately prior to Employee's Termination Date.\n(b) "Board" shall mean the Board of Directors of Cognizant Technology Solutions Corporation.\n(c) "Cause" shall mean (i) willful malfeasance or willful misconduct by the Employee in connection with his employment,\n(ii) continuing failure to perform such duties as are reasonably requested by Employee's supervisor, (iii) failure by the Employee to observe\nmaterial\npolicies of the Company applicable to the Employee, (iv) the commission by the Employee of (x) any felony or (y) any misdemeanor\ninvolving moral turpitude, (v) Employee engaging in any fraudulent act or act of embezzlement, or (vi) any material breach of this Agreement.\n(d) "Code" means the Internal Revenue Code of 1986, as amended and the regulations promulgated thereunder.\n(e) "Disability." means Employee's total and permanent disability as determined in accordance with the Company's long-term\ndisability policy, whether or not Employee is covered by such policy.\n(f) "Good Reason" means, the occurrence of one or more of the following events or actions:\n(i)\nA material diminution by the Company of Employee's authority, duties or responsibilities;\n(ii) A material diminution in Employee's overall compensation package, which is not otherwise caused by an overall\npolicy by the Company to reduce senior employee compensation throughout the Company;\n(iii) The failure of the Company to obtain from its successors the express assumption of this Agreement; or\n(iv)\nA change, without Employee's consent, in the principal place of work of the Employee to a location that is\nmore\nthan 50 miles from his primary work location as of the date of this Agreement, but only if such change occurs on or after a Change in Control.\n(g) "Notice of Termination" means a written notice that (i) indicates the specific termination provision in this Agreement\nrelied upon and (ii) briefly summarizes the facts and circumstances deemed to provide a basis for termination of Employee's employment under\nthe provision so indicated.\n(h) "Termination Date" shall mean the last day of Employee's employment with the Company.\n(i) "Termination of Employment" shall mean the termination of Employee's active employment relationship with the\nCompany.\n2. Employment. The Company hereby employs][continues to employ] Employee, and Employee hereby [accepts][continu to\naccept] such employment, upon the terms and conditions set forth herein.\n3. Duties.\n(a) Position. Employee [shall be J[continues to be] employed as and shall have the duties and responsibilities\nassigned by\nupon initial hire and from time to time thereafter. Employee shall perform faithfully and diligently all duties assigned to\nEmployee. The Company reserves the right to modify Employee's position and duties at any time in its sole and absolute discretion, provided\nthat the duties assigned are consistent with the position of a senior executive and that Employee continues to report to or such other\nposition of a similar or more senior level.\n(b) Best Efforts/Full-time. To the maximum extent permitted by law, Employee agrees to devote Employee's best efforts and\nentire business time and attention to the Company's business during the term of Employee's employment with the Company. Employee agrees\nthat, during the term of Employee's employment, except as otherwise approved in writing by the Company, which approval the Company may in\nits absolute discretion withhold, Employee will not, either directly or indirectly, or for himself/herself or through, on behalf of, or in conjunction\nwith any person, persons or legal entity, operate, engage in, assist, or be employed by any business activity to or for the benefit of any person or\nentity other than the Company; provided that the foregoing is not intended to prevent an Employee from pursuing hobbies or participating in\nany\nother activity that is not to the detriment of the Company. Employee further acknowledges and agrees that Employee has access to the\nCompany's Core Values & Code of Ethics (the "Code of Ethics") located at www.cognizant.com, and Employee has read and understands the\nCode of Ethics and shall abide by all the terms of said Code of Ethics, as may be amended from time to time, and said Code of Ethics shall be\nincorporated into this Agreement. Employee will abide by all policies and decisions made by the Company, as well as all applicable federal, state\nand local laws, regulations or ordinances. Employee will act in the best interest of the Company at all times.\n(c) Work Location. Employee's principal place of work shall be located in or such other location as the parties\nmay\nagree upon from time to time.\n4. At-Will Employment. Employee's employmen with the Company will be "at will," meaning it is for no specified term and may be\nterminated by Employee or the Company at any time, with or without Cause or advance notice, subject to the provisions of Section 9 below.\n5. Compensation.\n(a) Annual Base Salary.. As compensation for Employee's performance of Employee's duties hereunder, the Company shall\npay to Employee a base salary as most recently determined by the Compensation\n-2-\nCommittee of the Board and last communicated to the Employee, as may be modified by the Compensation Committee of the Board, payable\nin\naccordance with the normal payroll practices of the Company, less required deductions for state and federal withholding tax, social security and\nall other employment taxes and payroll deductions. In the event Employee's employment under this Agreement is terminated by either Party, for\nany reason, Employee will earn the Annual Base Salary prorated to Employee's Termination Date.\n(b) Incentive Compensation. Employee will be eligible to earn incentive compensation as determined by the Compensation\nCommittee of the Board in accordance with the bonus plan(s) provided to Employee by the Company, in accordance with the terms and\nconditions of such plan(s).\n(c) [Stock Options and Other Equity. Awards. Except as set forth herein, this Agreement does not modify or change\nthe\nexisting agreements regarding stock options, stock appreciation rights, restricted stock awards and restricted stock units (each, an "Equity\nAward" and collectively, "Equity Awards") previously issued to Employee.]\n6. Customary Fringe Benefits. Employee will be eligible for all customary and usual fringe benefits generally available to employees\nof the Company subject to the terms and conditions of the Company's benefit plan documents. The Company reserves the right to change or\neliminate the fringe benefits on a prospective basis, at any time, effective upon notice to Employee.\n7. Business Expenses. Employee will be reimbursed for all reasonable, out-of-pocket business expenses incurred in the performance\nof Employee's duties on behalf of the Company. To obtain reimbursement, expenses must be submitted promptly with appropriate supporting\ndocumentation in accordance with the Company's policies.\n8. Company Access. Employee agrees and consents that, during the term of Employee's employment with the Company and\nthereafter, the Company may review, audit, intercept, access and disclose all messages created, received or sent over the electronic mail and\ninternet access system provided by the Company with or without notice to Employee and that such review, audit, interception, access, or\ndisclosure may occur during or after working hours. Employee further consents and agrees that the Company may, at any time, access and review\nthe contents of all computers, computer disks, other data storage equipment and devices, files, desks, drawers, closets, cabinets and work stations\nthat are either on the Company's premises or that are owned or provided by the Company.\n9. Involuntary. Termination of Employment\n(a) Prior to a Change in Control. In the event that Employee's employment with the Company is involuntarily terminated by\nthe Company for any reason other than Cause, death or Disability or in the event Employee resigns his employment for Good Reason pursuant to\nSection 10 and the Company's right to cure (as set forth in Section 10) has expired (an "Involuntary Termination"), and in either such case\nEmployee's employment termination becomes effective before any Change in Control (as defined in Section 9(d) below) has occurred following\nthe date of this Agreement, Employee shall be entitled to the payments and benefits described below, provided that Employee executes and does\nnot revoke the Release (as defined in Section 13) and the Release first becomes effective:\n(i) Employee shall receive a cash payment equal to one (1) times Employee's Annual Base Salary, such amount to\nbe\npaid\nin\nregular\ninstallments in accordance with the Company's normal payroll practices over a period of twelve (12) months, commencing\non\nor as soon as practicable after the date the Release becomes effective and within thirty-five (35) days following Employee's Termination Date.\n(ii)\nEmployee shall receive a cash payment equal to one (1) times the amount of the Employee's target annual\nbonus\nfor the performance year in which the Employee's Termination Date occurs. Payment shall be made in a lump sum payment on or as soon as\npracticable after the date the Release becomes effective and within thirty-five (35) days following Employee's Termination Date.\n-3-\n(iii) The Company shall, for a period of eighteen (18) months following the Employee's Termination Date, pay the\nEmployee each month an amount equal to the monthly COBRA medical insurance cost under the Company's group medical plan for Employee\nand, where applicable, Employee's spouse and eligible dependents; provided that Employee, and, where applicable, Employee's spouse and\ndependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments\nspecified under this Section 9(a)(iii) shall cease if the Company's statutory obligation to provide such COBRA healthcare continuation coverage\nterminates for any reason before the expiration of the eighteen (18)-month period. All Company payments under this Section 9(a)(iii) to the\nEmployee can be used for any purpose and will be reported as taxable payments.\n(iv) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with\nthe Company and would have vested had Employee remained employed by the Company during the twelve (12) month period following\nEmployee's Termination Date shall automatically become fully vested and exercisable, as applicable, as of Employee's Termination Date. Such\nEquity Awards shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v)\nWith respect to any outstanding Equity Award that was subject to vesting in whole or in part based\non\nachievement of performance objective(s), to the extent that the applicable performance period has expired on or before Employee's Termination\nDate, the performance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more\nfuture dates, the portion of such Equity Award that would have vested had Employee remained employed by the Company during the twelve (12)\nmonth period following Employee's Termination Date shall become fully vested and exercisable as of Employee's Termination Date. Such\nEquity Award shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(vi) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee's\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany. The payment of amounts described in this Section 9(a)(vi) are not conditioned upon the Release becoming effective unless the\napplicable benefit plan or program provides otherwise.\n(b) Coincident with or within One Year After a Change in Control. In the event that Employee suffers an Involuntary\nTermination that becomes effective coincident with, or within the twelve (12) month period immediately after, the first occurrence of a Change\nin\nControl following the date of this Agreement, Employee shall be entitled to the payments and benefits described below in this Section 9(b) in\nlieu of, and not in addition to, the payments and benefits described in Section 9(a); provided that Employee executes and does not revoke the\nRelease (as defined in Section 13) and the Release first becomes effective:\n(i)\nEmployee shall receive a cash payment equal to two (2) times Employee's Annual Base Salary, such amount\nto\nbe paid in regular installments in accordance with the Company's normal payroll practices over a period of twenty-four (24) months,\ncommencing on or as soon as practicable after the date the Release becomes effective and within thirty-five (35) days following Employee's\nTermination Date.\n(ii) Employee shall receive a cash payment equal to two (2) times the amount of the Employee's target annual bonus\nfor the performance year in which the Employee's Termination Date occurs. Payment shall be made in a lump sum payment on or as soon as\npracticable after the date the Release becomes effective and within thirty-five (35) days following Employee's Termination Date.\n(iii)\nThe Company shall, for a period of eighteen (18) months following the date of Employee's Termination\nof\nEmployment, pay Employee each month an amount equal to the monthly COBRA medical insurance cost under the Company's group medical\nplan for Employee and, where applicable, Employee's spouse and eligible dependents; provided that Employee, and, where applicable,\nEmployee's spouse and dependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further\nthat\nthe\npayments specified under this Section 9(b)(iii) shall cease if the Company's statutory obligation to provide such COBRA healthcare\ncontinuation coverage terminates for any reason before the expiration of the eighteen (18)-month\n-4-\nperiod. All Company payments under this Section 9(a)(iii) to the Employee can be used for any purpose and will be reported as taxable\npayments.\n(iv)\nThe portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service\nwith\nthe Company shall automatically become fully vested and exercisable, as applicable, as of Employee's Termination Date. Such vested Equity\nAwards shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) Outstanding Equity Awards the vesting of which is conditioned, in whole or in part, upon the achievement of\nperformance objectives shall become vested and exercisable as follows:\n(A) To the extent that the applicable performance period has expired on or before Employee's Termination Date, the\nperformance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more\nfuture dates, such Equity Award shall become fully vested and exercisable as of Employee's Termination Date.\n(B) To the extent that the applicable performance period has not expired on or before Employee's Termination Date,\nthe Company shall pro-rate the performance objective(s) for the portion of the performance period that has transpired up to the date of\nclosing of the Change in Control, make a good faith determination of the level of achievement of such pro-rated performance objective\nas of such closing date, and treat as fully vested and exercisable a proportionate amount of such Equity Award that corresponds with the\nlevel of achievement of the pro-rated performance objective, disregarding any future service conditions that otherwise would apply to\nsuch Equity Award.\n(vi)\nEmployee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee's\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany. The payment of amounts described in this Section 9(b)(vi) are not conditioned upon the Release becoming effective unless the\napplicable benefit plan or program provides otherwise.\n(c) Notice of Termination. Any termination on account of this Section 9 shall be communicated by a Notice of Termination to\nthe other Party hereto given in accordance with Section 26 hereof.\n(d) Definition of Change in Control. For purposes of this Agreement, the term "Change in Control" shall have the meaning\nset forth in the Company's 2017 Incentive Award Plan, as amended from time to time or any successor plan in effect as of Employee's\nTermination Date.\n10. Resignation for Good Reason. If Employee provides notice of his intent to terminate for Good Reason, then, subject to the\nexpiration of the cure period and Employee's actual termination as described below, such resignation shall be deemed an Involuntary Termination\nfor purposes of this Agreement and Employee shall be entitled to the payments and benefits described in Section 9 subject to the requirements set\nforth in this Agreement, including Section 13. Employee must provide written notice to the Company of his intent to terminate his employment\nfor Good Reason within thirty (30) days of the action or omission giving rise to such claim of Good Reason. Thereafter, the Company shall have\na period of thirty (30) days within which it may correct the event or action that constitutes the grounds for Good Reason as set forth in\nEmployee's notice of termination. If the Company does not correct the event or action prior to the expiration of the foregoing cure period,\nEmployee must terminate his employment for Good Reason within thirty (30) days after the expiration of the cure period, in order for the\ntermination to be considered a Good Reason termination under this Agreement.\n11. Termination Due to Death. If Employee's employment with the Company is terminated due to death, Employee shall be entitled to\nthe payments and benefits described below, provided that Employee's estate executes and does not revoke the Release (as defined in Section 13)\nand the Release first becomes effective:\n(a) Employee shall receive a cash payment equal to (1) times the amount of the Employee's target annual bonus for the\nperformance year in which the Employee's Termination Date occurs, pro-rated based on\n-5-\nthe portion of such year that has elapsed as of Employee's Termination Date. Payment shall be made in a lump sum payment on or as soon as\npracticable after the date the Release becomes effective and within thirty-five days following Employee's Termination Date.\n(b) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the\nCompany shall automatically become fully vested and exercisable, as applicable, as of Employee's Termination Date. Such vested Equity Awards\nshall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(c) Outstanding Equity Awards the vesting of which is conditioned, in whole or in part, upon the achievement of performance\nobjectives shall become vested and exercisable as follows:\n(i) To the extent that the applicable performance period has expired on or before Employee's Termination Date, the\nperformance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future\ndates, such Equity Award shall become fully vested and exercisable as of Employee's Termination Date.\n(ii) To the extent that the applicable performance period has not expired on or before Employee's Termination Date,\nthe Company shall pro-rate the performance objective(s) for the portion of the performance period that has transpired up to Employee's\nTermination Date, make a good faith determination of the level of achievement of such pro-rated performance objective as of such Termination\nDate, and treat as fully vested and exercisable a proportionate amount of such Equity Award that corresponds with the level of achievement of\nthe\npro-rated performance objective, disregarding any future service conditions that otherwise would apply to such Equity Award.\n(d) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee's\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany. The payment of amounts described in this Section 11(d) are not conditioned upon the Release becoming effective unless the applicable\nbenefit plan or program provides otherwise.\n12. Termination Due to Disability or For Cause. If Employee's employment with the Company is terminated by the Company due to\nDisability or for Cause, Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee's\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany; all other Company obligations to Employee will be extinguished as of the Termination Date.\n13. Release. Notwithstanding the foregoing, no payments or benefits shall be provided under Sections 9, 10 and 11, as applicable\n(except for those payments that are owed pursuant to applicable law and/or are specifically not conditioned upon the execution of a release by\nEmployee or Employee's estate, as applicable), unless Employee or his estate, if applicable, executes, and does not revoke, the Company's then\nstandard written general release (the "Release") of any and all claims against the Company and all related parties with respect to all matters\narising out of Employee's employment by the Company (other than any entitlements under the terms of this Agreement or under any other plans\nor programs of the Company in which Employee participated and under which Employee has accrued and earned a benefit) or the termination\nthereof. The Company will provide Employee with the form of release agreement within seven days after Employee's separation from service. To\nbe entitled to the severance or other benefits, Employee must execute and deliver to the Company the release agreement on or before the last day\nof\nthe\nminimum\nrequired\nwaiver\nconsideration\nperiod\nprovided\nunder\nthe\nAge\nDiscrimination\nin\nEmployment\nAct\nor\nother\napplicable\nlaw\nor\nsuch\nlater date specified in the release agreement. If Employee timely delivers an executed release agreement to the Company, and Employee does not\nrevoke the release agreement during the minimum revocation period required under applicable law, if any, the severance or other benefits shall be\npaid or commence being paid, as specified in this Agreement, subject to any delay required pursuant to Section 32(b) of this Agreement. If,\nhowever, the period during which Employee has discretion to execute or revoke the release agreement straddles two calendar years, the cash\nseverance or other benefits shall be paid or commence being paid, as applicable, as soon as practicable in the second of the two calendar years,\nregardless of within which calendar\n-6-\nyear Employee actually delivers the executed release agreement to the Company, subject to the release agreement first becoming effective.\nConsistent with section 409A of the Code, Employee may not, directly or indirectly, designate the calendar year of payment. Nothing in this\nSection 13 shall be construed to alter the terms of this Agreement that condition Employee's entitlement to any severance or other benefits upon\nEmployee's compliance with the restrictive covenants and any other terms and conditions specified in this Agreement.\n14. Other Payments. Any payments and benefits that become due under Sections 9, 10 and 11 hereof shall be in addition to (but not in\nduplication of) and not in lieu of any payments and benefits due to Employee under any other plan, policy or program of the Company, except\nthat Employee shall not be entitled to any payments and benefits under the Company's then current severance pay policies.\n15. No Mitigation. Employee shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by\nseeking other employment or otherwise, nor shall the amount of any payment or benefit provided for herein be reduced by any compensation\nearned by other employment or otherwise; provided, however, that any obligation of the Company to make the payments described in Sections\n9(a)(iii) and 9(b)(iii) shall cease upon Employee becoming covered under a healthcare plan of another employer.\n16. Non-Exclusivity of Rights. Except as provided in Section 14, nothing in this Agreement shall prevent or limit Employee's\n[continuing or] future participation in or rights under any benefit, bonus, incentive or other plan or program provided by the Company or any of\nits subsidiaries or affiliates and for which Employee may qualify.\n17. No Set-Off. Other than with respect to the Recoupment Policy (as hereinafter defined), the Company's obligation to make the\npayments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any circumstances,\nincluding, without limitation, any set-off, counterclaim, recoupment, defense or other right that the Company may have against Employee or\nothers.\n18. Taxes.\n(a) All payments under this Agreement shall be made subject to applicable tax withholding, and the Company shall withhold\nfrom any payments under this Agreement all federal, state and local taxes as the Company is required to withhold pursuant to any law or\ngovernmental rule or regulation. Employee shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due\nwith respect to any payment received under this Agreement, including, without limitation, any excise tax imposed by Section 4999 of the Code.\n(b) If the payments and benefits received or to be received by Employee in connection with a Change in Control or the\ntermination of Employee's employment (whether payable pursuant to the terms of this Agreement ("Contract Payments") or any other plan,\narrangement or agreement with the Company or any affiliate (collectively with the Contract Payments, the "Total Payments"), would constitute a\n"parachute payment" under Section 280G of the Code, then the Total Payments shall be reduced, in the manner set forth below, by the minimum\namount necessary to result in no portion of the Total Payments being non-deductible to the Company pursuant to Section 280G of the Code or\nsubject to the excise tax imposed under Section 4999 of the Code.\n(c) All determinations required to be made under this Section 18, including whether a reduction in Total Payments is\nrequired, the amount of any such reduction and the assumptions to be utilized in arriving at such determination, shall be made by an accounting\nor law firm of recognized standing reasonably selected by the Company (the "Firm"), which may be, but will not be required to be, the\nCompany's independent auditors. The Firm shall submit its determination and detailed supporting calculations to both Employee and the\nCompany within fifteen (15) days after receipt of a notice from either the Company or Employee that Employee may receive payments that may\nbe "parachute payments." If the Firm determines that a reduction is required by this Section 18, the Contract Payments consisting of cash\nseverance shall be reduced to the extent necessary so that no portion of the Total Payments shall be subject to the excise tax imposed by section\n4999 of the Code, and the Company shall pay such reduced amount to Employee in accordance with the terms of this Agreement. If additional\nContract Payments must be reduced pursuant to this Section 18 after the cash severance has been reduced to zero, the Contract Payments\nallocable to performance-vested Equity Awards shall next be reduced, followed by the\n-7-\nContract Payments allocable to time-vested Equity Awards, to the extent necessary to satisfy the requirements of this Section 18.\n(d) Employee and the Company shall each provide the Firm access to and copies of any books, records, and documents in the\npossession of Employee or the Company, as the case may be, reasonably requested by the Firm, and otherwise cooperate with the Firm in\nconnection with the preparation and issuance of the determinations and calculations contemplated by this Section 18. The fees and expenses of\nthe Firm for its services in connection with the determinations and calculations contemplated by this Section 18 shall be borne by the Company.\n19. Confidential Information. Employee agrees that Employee's services to the Company [have been and will continue to e][will be]\nof a special, unique and extraordinary character, and that Employee's position places Employee in a position of confidence and trust with the\nCompany's customers and employees. Employee also recognizes that Employee's position with the Company will give Employee substantial\naccess to Confidential Information (as defined below), the disclosure of which to competitors of the Company would cause the Company to\nsuffer substantial and irreparable damage. Employee recognizes, therefore, that it is in the Company's legitimate business interest to restrict\nEmployee's use of Confidential Information for any purposes other than the discharge of Employee's employment duties at the Company, and to\nlimit any potential appropriation of Confidential Information by Employee for the benefit of the Company's competitors and to the detriment of\nthe Company. Accordingly, Employee agrees as follows:\n(a) Employee will not at any time, whether during or after the termination of Employee's employment, reveal to any person\nor entity any of the trade secrets or confidential information of the Company or of any third party that the Company is under an obligation to\nkeep confidential (including but not limited to trade secrets or confidential information respecting inventions, products, designs, methods, know-\nhow, techniques, systems, processes, software programs, works of authorship, customer lists, projects, plans and proposals) ("Confidential\nInformation"), except as may be required in the ordinary course of performing Employee's duties as an employee of the Company, and Employee\nshall keep secret all matters entrusted to Employee and shall not use or attempt to use any such information in any manner that may injure\nor\ncause loss or may be calculated to injure or cause loss whether directly or indirectly to the Company. By way of example and not limitation,\nConfidential Information also includes any and all information, whether or not meeting the legal definition of a trade secret, concerning the\nCompany's actual, planned or contemplated: (i) marketing plans, business plans, strategies, forecasts, budgets, projections and costs; (ii)\npersonnel information; (iii) customer, vendor and supplier lists; (iv) customer, vendor and supplier needs, transaction histories, contacts,\nvolumes, characteristics, agreements and prices; (v) promotions, operations, sales, marketing, and research and development; (vi) business\noperations, internal structures and financial affairs; (vii) software and operating systems and procedures; (viii) pricing structure of the Company's\nservices and products; (ix) proposed services and products; (x) contracts with other parties; (xi) performance characteristics of the Company's\nproducts; and (xii) Inventions and Works (each as defined in Section 20). Confidentia Information also includes any and all information of\nCompany's clients and customers that is deemed confidential by such clients and customers (whether past, present or potential), including, but\nnot limited to: marketing tools, inventions, processes, contact lists, materials, software program code, logic diagrams, flow charts, procedural\ndiagrams, computer programming techniques and know how, maps and any documentation related thereto.\n(b) The above restrictions shall not apply to: (i) information that at the time of disclosure is in the public domain through no\nfault of Employee; (ii) information received from a third party outside of the Company that was publicly disclosed without a breach of any\nconfidentiality obligation; or (iii) information approved for release by written authorization of the Company. In addition, in the event that\nEmployee is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative\ndemand or similar process) to disclose any of the Confidentia Information, it is agreed that Employee will provide the Company with prompt\nnotice of such request(s) so that the Company may seek an appropriate protective order or other appropriate remedy and/or waive compliance\nwith the confidentiality provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or the Company\ngrants a waiver hereunder, Employee may furnish that portion (and only that portion) of the Confidential Information that Employee is legally\n-8-\ncompelled to disclose and will exercise its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded any\nConfidential Information so furnished.\n(c) Further, Employee agrees that during Employee's employment Employee shall not take, use or permit to be used any\nnotes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials of any\nnature relating to any matter within the scope of the business of the Company or concerning any of its dealings or affairs otherwise than for the\nbenefit of the Company. Employee further agrees that Employee shall not, after the termination of Employee's employment, use or permit to be\nused any such notes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other\nmaterials, it being agreed that all of the foregoing shall be and remain the sole and exclusive property of the Company and that, immediately\nupon the termination of Employee's employment, Employee shall deliver all of the foregoing plus any other Confidential Information, and all\ncopies thereof, to the Company, at its main office.\n(d) Employee agrees that upon the termination of Employee's employment with the Company, Employee will not take\nor\nretain without written authorization any documents, files or other property of the Company, and Employee will return promptly to the Company\nany such documents, files or property in Employee's possession or custody, including any copies thereof maintained in any medium or format.\nEmployee recognizes that all documents, files and property that Employee has received and will receive from the Company, including but not\nlimited to scientific research, customer lists, handbooks, memoranda, product specifications, and other materials (with the exception of\ndocuments relating to benefits to which Employee might be entitled following the termination of Employee's employment with the Company),\nare for the exclusive use of the Company and employees who are discharging their responsibilities on behalf of the Company, and that Employee\nhas no claim or right to the continued use, possession or custody of such documents, files or property following the termination of Employee's\nemployment with the Company.\n(e) Employee acknowledges that the Company has provided Employee with the following notice of immunity rights in\ncompliance with the requirements of the Defend Trade Secrets Act of 2016: (i) Employee shall not be held criminally or civilly liable under any\nU.S. federal or state trade secret law for the disclosure of Confidential Information that is made in confidence to a U.S. federal, state or local\ngovernment official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law; (ii) Employee shall not be\nheld\ncriminally or civilly liable under any U.S. federal or state trade secret law for the disclosure of Confidential Information that is made in\na\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; and (iii) if Employee files a lawsuit for\nretaliation by the Company for reporting a suspected violation of law, Employee may disclose the Confidentia Information to Employee's\nattorney\nand\nuse\nthe\nConfidential Information in the court proceeding, if Employee files any document containing the Confidential Information\nunder seal, and does not disclose the Confidential Information, except pursuant to court order. However, under no circumstance will Employee be\nauthorized to disclose any information covered by attorney-client privilege or attorney work product of the Company without prior written\nconsent\nof\nthe\nCompany's\nGeneral\nCounsel\nor\nother\nofficer\ndesignated\nby\nthe\nCompany.\nNotwithstanding\nanything\nto\nthe\ncontrary\ncontained\nherein, no provision of this Agreement shall be interpreted so as to impede Employee (or any other individual) from reporting possible violations\nof U.S. federal law or regulation to any governmental agency or entity, including but not limited to the U.S. Department of Justice, the U.S.\nSecurities and Exchange Commission, the U.S. Congress, and any agency Inspector General of the U.S. government or making other disclosures\nunder the whistleblower provisions of U.S. federal law or regulation. Employee does not need the prior authorization of the Company to make\nany such reports or disclosures and Employee shall not be not required to notify the Company that such reports or disclosures have been made.\n20. Intellectual Property..\n(a) Employee agrees to disclose fully, promptly, and in writing to the Company any and all Inventions and Works (each as\ndefined below) that are conceived, made, reduced to practice, developed, authored, created, drawn or written at any time while Employee is\nemployed by the Company and for a period of six (6) months thereafter. Employee will generate and provide to the Company adequate and\ncurrent written records of all\n-9-\nInventions and Works in the form of notes, sketches, drawings, reports, flow charts, procedural diagrams, logic diagrams, software program code,\nprocedural diagrams, computer programming techniques or other documents relating thereto or in such other form as will be requested by the\nCompany, which records and any copies thereof will be and will remain the exclusive property of the Company and will be available to the\nCompany at all times, along with all available information relating thereto (with all necessary plans and models) to the Company.\n(b) The Company and Employee agree that "Inventions," is defined in this Agreement to include any and all new or useful\nideas, developments, discoveries, improvements, designs, formulas, modifications, trademarks, service marks, trade secrets, and other intellectual\nproperty, whether patentable or not (including without limitation any technology, computer programs, software, software program code, logic\ndiagrams, flow charts, procedural diagrams, computer programming techniques, test, concept, idea, process, method, composition of matter,\nformula or technique), and all know-how related thereto, that Employee conceives, makes, reduces to practice, or develops, solely or jointly with\nothers (i) that relate to the actual or contemplated business, work or activities of the Company, (ii) that result from or are suggested by any work\nwhich Employee [has done or] may do on behalf of the Company, or by any information that Employee may receive by virtue of Employee's\nemployment by the Company, or (iii) that are developed, tested, improved or investigated either in part or entirely on time for which Employee\nwas paid by the Company, or with the use of premises, equipment or property provided, owned, leased, or contracted for by or on behalf of\nthe\nCompany.\n(c) The Company and Employee agree that "Works" is defined in this Agreement to include any and all materials for which\ncopyright protection may be obtained, including without limitation literary works (including books, pamphlets, articles and other writings), mask\nworks, artistic works (including designs, graphs, drawings, blueprints and other graphic works), computer programs, software program code,\nlogic diagrams, flow charts, procedural diagrams, computer programming, compilations, recordings, photographs, motion pictures and other\naudio-visual works that Employee authors, conceives, creates, draws, makes, or writes, solely or jointly with others (i) that relate to the actual or\ncontemplated business, work or activities of the Company, (ii) that result from or are suggested by any work which Employee has done or may\ndo on behalf of the Company, or by any information that Employee may receive by virtue of Employee's employment by the Company, or\n(iii) that are developed, tested, improved or investigated either in part or entirely on time for which Employee was paid by the Company, or with\nthe use of premises, equipment or property provided, owned, leased, or contracted for, by, or on behalf of the Company.\n(d) Employee agrees to assign, transfer and convey, and hereby assigns, transfers and conveys to the Company all of the\nrights, titles and interests in and to any and all such Inventions and Works that Employee [has or] may acquire in such Inventions or Works that\nare conceived, made, reduced to practice, developed, authored, created, drawn or written at any time while Employee is employed by the\nCompany and for a period of six (6) months thereafter. Employee agrees that the Company will be the sole owner of all patents, copyrights,\ntrademarks and other intellectual property rights in connection therewith, and agrees to take all such actions as may be requested by the Company\nduring Employee's employment with the Company and at any time thereafter, with respect to any such Inventions or Works to confirm or\nevidence such assignment, transfer, conveyance or ownership, and to assist in the Company's maintenance, enforcement, license, assignment,\ntransfer, or conveyance of rights in respect of the Inventions or Works.\n(e)\nBy way of example and not limitation, at any time and from time to time, upon the request of the Company,\nEmployee\nagrees to execute, acknowledge, swear to, seal and deliver to the Company, any and all lawful instruments, documents and papers, give evidence\nand do any and all other lawful acts that, in the opinion of the Company, are or may be necessary or desirable to document such assignment,\ntransfer\nand\nconveyance\nor\nto\nenable\nthe\nCompany\nto\nfile\nand\nprosecute\napplications\nfor\nand\nto\nacquire,\nmaintain\nand\nenforce\nany\nand\nall\npatents,\ntrademarks, copyrights and other property rights under United States, local, state or foreign law with respect to any such Inventions or Works or\nto obtain any extension, validation, reissue, continuance or renewal of any such patent, trademark, copyright, or other intellectual property right.\nBy way of further example and not limitation, Employee agrees to meet with the Company representatives or attorneys for the purpose of\ninitiating, maintaining or defending litigation, administrative or other proceedings; and to participate fully in litigation, administrative or other\nproceedings as requested by the Company. In the event that the Company may be unable, for\n-10-\nany reason whatsoever, after reasonable effort, to secure Employee's signature on any patent, copyright, trademark or other intellectual property\napplication or other papers, Employee hereby irrevocably designates and appoints the Company and its duly authorized officers and agents, as\nEmployee's agent and attorney-in-fact to act for and on behalf of Employee to execute, acknowledge, swear to, seal and deliver to the Company\nand to file any such application or applications or other papers, and to do all other lawfully permitted acts to further the provisions of this Section\n20 of this Agreement.\n(f) The Company agrees to reimburse Employee for reasonable expenses incurred by Employee in complying with the\nprovisions of Sections 20(d) and 20(e) of this Agreement. The Company and Employee agree that Employee is not entitled to additional\ncompensation beyond that paid to Employee for the period of time that he is employed by the Company, which compensation, along with the\nCompany's understandings set forth in this Agreement, is expressly acknowledged to be adequate consideration for all of the Employee promises\nand obligations set forth in this Agreement.\n(g) Employee expressly acknowledges and states that all Works that are made by Employee (solely or jointly with others) are\nbeing created at the instance of the Company and are "works made for hire," as that term is defined in the Copyright Act of 1976, 17 USC 8 101.\nIn the event that such laws are inapplicable or in the event that any such Works, or any part thereof, are determined by a court of competent\njurisdiction not to be a work made for hire, this Agreement will operate as an irrevocable and unconditional assignment by Employee to the\nCompany of all Employee's right, title and interest (including, without limitation, all rights in and to the copyrights throughout the world,\nincluding the right to prepare derivative works and the rights to all renewals and extensions) in the Works in perpetuity.\n(h) Employee represents that Attachment A to this Agreement describes all inventions and works, whether patentable or not,\nthat have been conceived, made, reduced to practice, developed, authored, created, drawn or written prior to Employee's employment by the\nCompany; provided, however, that, Employee has not disclosed in Attachment A information that is a trade secret belonging to another, or that is\nthe subject of a contract preventing Employee's disclosure of the information to the Company.\n21. Non-Competition and Non-Solicitation. In further consideration of the compensation to be paid to Employee hereunder, Employee\nacknowledges that during the course of Employee's employment with the Company, the Company will provide Employee Confidential\nInformation, which Employee promises to not disclose. Further, Employee will become and/or remain familiar with the Company's trade secrets\nand with other Confidential Information concerning the Company and that Employee's services shall be of special, unique and extraordinary\nvalue to the Company, and therefore, the Employee agrees that some restrictions on Employee's activities during and after Employee's\nemployment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company:\n(a) During the period of Employee's employment by the Company and, if Employee's employment with the Company\nterminates for any reason, for a period of one (1) year thereafter ("Covenant Period"), except with the written consent of the Board, Employee\nshall not directly or indirectly, own, control, finance or participate in the ownership, control or financing of, or be employed by or provide\nservices to, any Competitor. For the purposes of this Agreement, a "Competitor" is defined as a person, business or enterprise (including\ndivisions of persons, businesses and enterprises) that directly or indirectly engages in services of the type conducted, authorized, offered or\nprovided by the Company (the "Restricted Business") in the Territory. Without limiting the foregoing, for purposes of this Agreement, each\nentity listed on Attachment B, as shall be modified from time to time by the Company upon written notice to Employee, shall constitute a\n"Competitor." For purposes of this Agreement, "Territory" is defined as the territory or territories within which Employee actually worked, or in\nrespect of which Employee was involved in providing services, during the twelve (12) month period prior to Employee's Termination Date.\nNotwithstanding the foregoing, nothing herein shall prevent Employee from providing services to, or being employed by, or owning, controlling,\nfinancing or participating in the ownership, control or financing of, any diversified entity or other person (other than the entities listed on\nAttachment B) that is engaged in the Restricted Business, so long as (i) the Restricted Business does not constitute greater than 25% of the\naggregate revenue of such diversified entity or other person and (ii) Employee is not employed within and does not have\n-11-\ninvolvement with business development or business strategy with respect to the Restricted Business. In further consideration for the Company's\npromises herein, Employee agrees that during the Covenant Period, Employee will not directly or indirectly (i) solicit, entice, induce, cause,\nencourage or recruit any part-time or full-time employee, representative, consultant, customer, subscriber or supplier of the Company or its\nsubsidiaries or affiliates to work for, provide services to or do business with a third party other than the Company or its subsidiaries or affiliates\nor engage in any activity that would cause any employee, representative, consultant, customer, subscriber or supplier to violate any agreement\nwith the Company or its subsidiaries or affiliates or otherwise terminate or change its relationship with the Company or its subsidiaries or\naffiliates or (ii) hire any current or former part-time or full-time employee, representative or consultant of the Company or its Affiliates who was\nemployed or engaged by the Company or its subsidiaries or affiliates at any time during the twelve (12) month period prior to Employee's\nTermination Date or who thereafter becomes employed or engaged by the Company or its subsidiaries or affiliates.\n(b) The foregoing restrictions shall not be construed to prohibit Employee's ownership of less than one percent (1%) of any\nclass of securities of any corporation that is engaged in any of the foregoing businesses and has a class of securities registered pursuant to the\nSecurities Exchange Act of 1934, as amended, provided that such ownership represents a passive investment and that neither Employee nor any\ngroup of persons including Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees\nany of its financial obligations, otherwise takes any part in its business, other than exercising Employee's rights as a stockholder, or seeks to do\nany of the foregoing.\n22. Employee Representations.\n(a)\nEmployee represents and warrants that this Agreement and his employment by the Company does not conflict with\nand\nwill not be constrained by any prior business relationship or contract, that Employee does not possess trade secrets or other proprietary\ninformation arising out of any prior business relationship or contract that, in Employee's best judgment would be utilized in connection with\nEmployee's employment with the Company. Employee further agrees that he will not disclose any such trade secrets or other proprietary\ninformation to the Company or others.\n(b) Employee represents and warrants that (i) before signing this Agreement, he has read this Agreement and is entering into\nthis Agreement freely and with knowledge of its contents with the intent to be bound by it and the restrictions contained herein; (ii) Employee\nhas been advised by the Company to consult Employee's own legal counsel in respect of this Agreement, and Employee has had full opportunity,\nprior to execution of this Agreement, to review thoroughly this Agreement with Employee's counsel; (iii) the restrictions imposed on Employee\nby this Agreement are fair, reasonable and proper and required for the protection of the Company's business interests, particularly its investments\nin Employee (e.g., Employee's job knowledge and skills), its Confidential Information, as well as the goodwill developed, and its business\nrelationships, with its clients, customers and prospective clients and customers; (iv) the Company would not have entered into this Agreement in\nthe\nabsence\nof\nsuch\nrestrictions,\nand\nthat\nany\nviolation\nof\nany\nprovision\nof\nSections\n19,\n20\nor\n21\nhereof\nwill\nresult\nin\nirreparable\ninjury\nto\nthe\nCompany; and (v) the restrictions imposed on Employee by this Agreement, particularly, the post-termination restrictions, shall not preclude\nEmployee from earning a living or engaging in Employee's profession or trade, or pursuing a career or a business, in each case at the same\ngeneral level of economic benefit as is currently the case.\n23. Consequences of Breach of Covenants; Equitable Relief.\n(a) Employee agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity\nof proving actual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of Sections 19,\n20, and 21 hereof, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled. The\nperiod of the injunction shall be measured from the date of a court order granting the injunctive relief. In the event that any of the provisions of\nSections 19, 20, and 21 hereof should ever be adjudicated to exceed the time, geographic, service, or other limitations permitted by applicable\nlaw in any jurisdiction, then such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic, service, or other\nlimitations permitted by applicable law.\n-12-\n(b) Notwithstanding anything to the contrary herein, Employee acknowledges and agrees that the severance payments and\nbenefits\nprovided herein are being provided by the Company to Employee, among other things, as additional consideration and solely for\nEmployee's agreement with and adherence to the post-employment restrictive covenants in Section 21 (a)-(c) and Employee's other promises,\ncovenants, commitments and obligations in this Agreement (including the releases granted in Section 13), the adequacy and sufficiency of which\nEmployee expressly acknowledges. Employee agrees that should the Company, in its sole discretion, deem Employee to be in violation of any\nprovision(s) in said Section 21 (a)-(c), the Company may immediately cease payment of all or any portion of the severance payments and\nbenefits provided hereunder. Employee acknowledges that the severance payments and benefits provided for herein are in addition to anything of\nvalue to which Employee was already entitled.\n(c) Employee irrevocably and unconditionally (i) agrees that any suit, action or other legal proceeding arising out of Section\n19, 20, and 21 hereof, including without limitation, any action commenced by the Company for preliminary and permanent injunctive relief or\nother equitable relief, may be brought in the United States District Court for the District of New Jersey, or if such court does not have jurisdiction\nor will not accept jurisdiction, in any court of general jurisdiction in New Jersey, (ii) consents to the non-exclusive jurisdiction of any such court\nin any such suit, action or proceeding, and (iii) waives any objection that Employee may have to the laying of venue of any such suit, action or\nproceeding in any such court. Employee also irrevocably and unconditionally consents to the service of any process, pleadings, notices or other\npapers in a manner permitted by the notice provisions of Section 26 hereof.\n24. Term of Agreement. This Agreement shall continue in full force and effect for the duration of Employee's employment with the\nCompany; provided, however, that after the termination of Employee's employment during the term of this Agreement, this Agreement shall\nremain in effect until all of the obligations of the Parties hereunder are satisfied or have expired.\n25. Successor Company.. The Company shall require any successor or successors (whether direct or indirect, by purchase, merger,\nconsolidation or otherwise) to all or substantially all of the business and/or assets of the Company, by agreement in form and substance\nsatisfactory to Employee, to acknowledge expressly that this Agreement is binding upon and enforceable against the Company in accordance\nwith the terms hereof, and to become jointly and severally obligated with the Company to perform this Agreement in the same manner and to the\nsame extent that the Company would be required to perform if no such succession or successions had taken place. Failure of the Company\nto\nobtain\nsuch\nagreement\nprior\nto\nthe\neffectiveness\nof\nany\nsuch\nsuccession\nshall\nbe\na\nbreach\nof\nthis\nAgreement.\nAs\nused\nin\nthis\nAgreement,\nthe\nCompany shall mean the Company as hereinbefore defined and any such successor or successors to its business and/or assets, jointly and\nseverally.\n26. Notice. All notices and other communications required or permitted hereunder or necessary or convenient in connection herewith\nshall be in writing and shall be delivered personally or mailed by registered or certified mail, return receipt requested, or by overnight express\ncourier service, as follows:\nIf to the Company, to:\nCognizant Technology Solutions Corporation\n500 Frank W. Burr Blvd.\nTeaneck, NJ 07666\nAttn: General Counsel\nIf to Employee, to:\n-13-\nor to such other names or addresses as the Company or Employee, as the case may be, shall designate by notice to the other Parties hereto in\nthe\nmanner specified in this Section; provided, however, that if no such notice is given by the Company following a change in control, notice at the\nlast address of the Company or to any successor pursuant to this Section 26 shall be deemed sufficient for the purposes hereof. Any such notice\nshall be deemed delivered and effective when received in the case of personal delivery, five days after deposit, postage prepaid, with the U.S.\nPostal Service in the case of registered or certified mail, or on the next business day in the case of overnight express courier service.\n27. Governing Law. This Agreement shall be governed by and interpreted under the laws of the State of New Jersey without giving\neffect to any conflict of laws provisions.\n28.\nContents of Agreement, Amendment and Assignment.\n(a) This Agreement, including the Code of Ethics, supersedes all prior agreements with respect to the subject matter hereof,\nsets forth the entire understanding between the Parties hereto with respect to the subject matter hereof and cannot be changed, modified, extended\nor terminated except upon written amendment executed by Employee and executed on the Company's behalf by a duly authorized officer, except\nfor\nrevisions\nor\nadditions to Attachment B, which may be unilaterally modified by the Company upon written notice to Employee[; provided,\nhowever, that this Agreement, except as expressly set forth in Section 9, does not supersede, modify or change any existing written award\nagreements regarding stock options, stock appreciation rights, restricted stock awards, restricted stock units, performance awards, performance\nunits or other stock-based awards issued to Employee prior to the effective date of this Agreement]. The provisions of this Agreement may\nprovide for payments to Employee under certain compensation or bonus plans under circumstances where such plans would not provide for\npayment thereof. It is the specific intention of the Parties that the provisions of this Agreement shall supersede any provisions to the contrary in\nsuch plans, and such plans shall be deemed to have been amended to correspond with this Agreement without further action by the Company,\nthe\nCompany's Board of Directors or the Board unless such amendment would contravene the provisions of section 409A of the Code and result in\nthe imposition of additional taxes under section 409A of the Code upon Employee.\n(b) Nothing in this Agreement shall be construed as giving Employee any right to be retained in the employ of the Company,\nor as changing or modifying the "at will" nature of Employee's employment status.\n(c) All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by\nthe respective heirs, representatives, successors and assigns of the Parties hereto, except that the duties and responsibilities of Employee and the\nCompany hereunder shall not be assignable in whole or in part by the Company. If Employee should die after Employee's Termination Date and\nwhile any amount payable hereunder would still be payable to Employee hereunder if Employee had continued to live, all such amounts, unless\notherwise provided herein, shall be paid in accordance with the terms of this Agreement to Employee's devises, legates or other designees or, if\nthere is no such designee, to Employee's estate.\n29.\nSeverability.. If any provision of this Agreement is declared illegal, invalid, or otherwise unenforceable by a court of competent\njurisdiction, such provision shall be reformed, if possible, to the extent necessary to render it legal, valid, and enforceable, or otherwise deleted,\nand the remainder of the terms of this Agreement shall not be affected except to the extent necessary to reform or delete such illegal, invalid, or\nunenforceable provision.\n30. Remedies Cumulative; No Waiver. No right conferred upon the Parties by this Agreement is intended to be exclusive of any other\nright or remedy, and each and every such right or remedy shall be cumulative and shall be in addition to any other right or remedy given\nhereunder or now or hereafter existing at law or in equity. No delay or omission by a Party in exercising any right, remedy or power hereunder\nor\nexisting at law or in equity shall be construed as a waiver thereof.\n31. Miscellaneous. All section headings are for convenience only. This Agreement may be executed in several counterparts, each of\nwhich is an original. It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any of the\nother counterparts.\n-14-\n32. Section 409A.\n(a) Interpretation. This Agreement is intended to comply with the requirements of Section 409A of the Code to the extent\napplicable or to be exempt from Section 409A of the Code pursuant to the "'short-term deferral exception" under Treas. Reg. section 1.409A-1(b)\n(4) or the "separation pay exception" under Treas. Reg. Section 1.409A-1(b)(9)(iii), and shall in all respects be administered and construed in\naccordance\nwith\nSection\n409A\nof\nthe\nCode.\nIf\nany\npayment\nor\nbenefit\nhereunder\ncannot\nbe\nprovided\nor\nmade\nat\nthe\ntime\nspecified\nherein\nwithout\nincurring sanctions on Employee under Section 409A of the Code, then such payment or benefit shall be provided in full at the earliest time\nthereafter when such sanctions will not be imposed. For purposes of Section 409A of the Code, all payments to be made upon a Termination\nof\nEmployment under this Agreement may only be made upon a "separation from service" (within the meaning of such term under Section\n409A\nof\nthe Code), each payment made under this Agreement shall be treated as a separate payment, the right to a series of installment payments under\nthis Agreement is to be treated as a right to a series of separate payments, and if a payment is not made by the designated payment date under this\nAgreement, the payment shall be made by December 31 of the calendar year in which the designated date occurs. To the extent that any\npayment\nprovided for hereunder would be subject to additional tax under Section 409A of the Code, or would cause the administration of this Agreement\nto fail to satisfy the requirements of Section 409A of the Code, such provision shall be deemed null and void to the extent permitted by\napplicable law, and, to the extent applicable, any such amount shall be payable in accordance with Section 32(b). In no event shall the Employee,\ndirectly or indirectly, designate the calendar year of payment. Nothing herein shall be construed as having modified the time and form of\npayment of any amounts or payments of "deferred compensation" (as defined under Treas. Reg. Section 1.409A-1(b)(1), after giving effect to\nthe\nexemptions in Treas. Reg. Sections 1.409A-1(b)(3) through (b)(12)) that were otherwise payable pursuant to the terms of any agreement between\nthe Company and Employee in effect on or after January 1, 2005 and prior to the date of this Agreement.\n(b)\nPayment Delay.. Notwithstanding anything herein to the contrary, if it is necessary to postpone the commencement\nof\nany\npayments or benefits otherwise payable under this Agreement as a result of Employee's "separation from service" with the Company to prevent\nthe imposition of any accelerated or additional tax under Section 409A of the Code, then the Company will postpone the commencement of the\npayment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to\nEmployee) that are not otherwise paid within the "short-term deferral exception" under Treas. Reg. Section 1.409A-1(b)(4) and the "separation\npay exception" under Treas. Reg. Section 1.409A-1(b)(9)(iii) until the first payroll date that occurs after the date that is six months following\nEmployee's "separation of service" with the Company. If any payments are postponed due to such requirements, such postponed amounts will be\npaid to Employee in a lump sum on the first payrol date that occurs after the date that is six months following Employee's "separation of\nservice" with the Company. If Employee dies during the postponement period prior to the payment of the postponed amount, the amounts\nwithheld on account of Section 409A of the Code shall be paid to the personal representative of Employee's estate within sixty (60) days after the\ndate of the Employee's death.\n(c) Reimbursements. All reimbursements provided under this Agreement shall be made or provided in accordance with the\nrequirements of Section 409A of the Code, including where applicable, the requirement that (i) any reimbursement is for expenses incurred\nduring Employee's lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for\nreimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement\nof an eligible expense will be made on or before the last day of the taxable year following the year in which the expense is incurred, and (iv) the\nright to reimbursement is not subject to liquidation or exchange for another benefit.\n33. Recoupment Policy.. Employee acknowledges that Employee shall be subject to and hereby agrees to abide by the terms of any\nclawback or recoupment policy that the Company has adopted or may hereafter adopt, as may be amended from time to time, with or without\nnotice (the "Recoupment Policy") to further the Company's interests in enhancing its corporate governance practices and/or to comply with\napplicable law, rules or regulations promulgated by the Securities and Exchange Commission or the rules of the national securities exchange on\nwhich shares of the common stock of the Company are listed for trade. Employee understands that pursuant to the Recoupment Policy, the\nCompany may seek to recoup all or part of any severance payments, bonus or other\n-15-\nincentive compensation paid to certain officers and former officers, including Equity Awards, in the event that the Company is required to restate\nits financial statements. In consideration of the [continued] benefits to be received from the Company (or a subsidiary) and the right to participate\nin, and receive future awards under, the Company's cash and equity-based incentive programs, Employee hereby acknowledges, understands and\nagrees that:\n(a) The Recoupment Policy applies to severance, cash bonuses and other incentive compensation, including Equity Awards,\npaid or awarded to Employee prior to or after the date on which the Recoupment Policy is adopted, and Employee agrees that, to the extent\nprovided in the Recoupment Policy, the Recoupment Policy shall apply to equity and other award agreements outstanding as of the date of this\nAgreement or hereafter executed, and such agreements shall be deemed amended by, and to incorporate, the terms of the Recoupment Policy\neven if the Recoupment Policy is not explicitly referenced therein;\n(b) The Company shall be fully entitled to enforce the Recoupment Policy against Employee in accordance with its terms,\nand Employee promptly shall comply with any demand authorized by the Board of Directors of the Company pursuant to the terms of the\nRecoupment Policy for repayment, return or rescission of, severance payments, a cash bonus or other incentive compensation, including Equity\nAwards, subject to the Recoupment Policy; and\n(c) Nothing in this acknowledgement shall be construed to expand the scope or terms of the Recoupment Policy, and\nEmployee is not waiving any defenses Employee may have in the event of an action for recoupment of compensation under the Recoupment\nPolicy, other than (i) waiving any defense regarding the retroactive application of the Recoupment Policy to prior or existing payments or awards\nand (ii) waiving any claim that the integration clause of any agreement excludes the application of the Recoupment Policy.\n[Signature Page Follows]\n-16-\nIN WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed this Agreement as of the date first above\nwritten.\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nName:\nTitle:\n[NAME OF EXECUTIVE]\n-17-\nATTACHMENT A\n1.\nThe following is a complete list of all inventions and works that have been conceived, made, reduced to practice, developed,\nauthored, created, drawn or written by me alone or jointly with others prior to my engagement by the Company.\nNone.\nDue to a preexisting contract with another party, I cannot disclose certain Inventions or Works that would otherwise be\nincluded on the above-described list.\nAdditional sheets are attached.\n(number)\nEMPLOYEE:\nSignature:\nName:\n(Print)\nTitle:\nDate:\n-18-\nATTACHMENT B - List of Direct Competitors\n1.\nInternational Business Machines Corporation\n2.\nAccenture LTD\n3.\nCap Gemini S.A.\n4.\nTata Consultancy Services\n5.\nInfosys Limited\n6.\nWipro Limited\n7.\nHCL Technologies Limited\n8.\nDXC Technology Company\n-19-	EX-10 .3 2 ctshexhibit10312312017.htm EXHIBIT 10.3\nEXHIBIT 10.3\nAMENDED AND RESTATED EXECUTIVE EMPLOYMENT AND NON-DISCLOSURE, NON-COMPETITION, AND INVENTION\nASSIGNMENT AGREEMENT\nThis Amended and Restated Executive Employment and Non-Disclosure, Non-Competition, and Invention Assignment\nAgreement (this “Agreement”) is made as of the ___ day of [____] 2018 (the “Effective Date”) by and between Cognizant Technology Solutions\nCorporation, a Delaware corporation (the “Company” (where applicable, the definition of Company shall include the Company’s subsidiaries and\naffiliates and any successors or assigns)), and [_____] (“Employee”).\n[WHEREAS, Employee is currently employed by the Company as its [_____]; [and]]\nWHEREAS, the Company desires to [continue to] retain the services of Employee; [and]\n[WHEREAS, the Parties desire to amend and restate, in its entirety, the parties’ prior agreements pertaining to Employee’s\nemployment, and set forth the new terms and conditions of Employee’s employment by the Company.]\nNOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth and\nintending to be legally bound hereby, the Company and Employee (individually a “Party” and together, the “Parties”) agree as follows:\n1. Definitions.\n(a) “Annual Base Salary” shall mean the rate of annual base salary paid or payable to Employee by the Company (including\nauthorized deferrals and salary reduction amounts) immediately prior to Employee’s Termination Date.\n(b) “Board” shall mean the Board of Directors of Cognizant Technology Solutions Corporation.\n(c) “Cause” shall mean (i) willful malfeasance or willful misconduct by the Employee in connection with his employment,\n(ii) continuing failure to perform such duties as are reasonably requested by Employee’s supervisor, (iii) failure by the Employee to observe\nmaterial policies of the Company applicable to the Employee, (iv) the commission by the Employee of (x) any felony or (y) any misdemeanor\ninvolving moral turpitude, (v) Employee engaging in any fraudulent act or act of embezzlement, or (vi) any material breach of this Agreement.\n(d) “Code” means the Internal Revenue Code of 1986, as amended and the regulations promulgated thereunder.\n(e) “Disability” means Employee’s total and permanent disability as determined in accordance with the Company’s long-term\ndisability policy, whether or not Employee is covered by such policy.\n(f) “Good Reason” means, the occurrence of one or more of the following events or actions:\n(i) A material diminution by the Company of Employee’s authority, duties or responsibilities;\n(ii) A material diminution in Employee’s overall compensation package, which is not otherwise caused by an overall\npolicy by the Company to reduce senior employee compensation throughout the Company;\n(iii) The failure of the Company to obtain from its successors the express assumption of this Agreement; or\n(iv) A change, without Employee’s consent, in the principal place of work of the Employee to a location that is more\nthan 50 miles from his primary work location as of the date of this Agreement, but only if such change occurs on or after a Change in Control.\n(g) “Notice of Termination” means a written notice that (i) indicates the specific termination provision in this Agreement\nrelied upon and (ii) briefly summarizes the facts and circumstances deemed to provide a basis for termination of Employee’s employment under\nthe provision so indicated.\n(h) “Termination Date” shall mean the last day of Employee’s employment with the Company.\n(i) “Termination of Employment” shall mean the termination of Employee’s active employment relationship with the\nCompany.\n2. Employment. The Company hereby [employs][continues to employ] Employee, and Employee hereby [accepts][continues to\naccept] such employment, upon the terms and conditions set forth herein.\n3. Duties.\n(a) Position. Employee [shall be][continues to be] employed as [_____] and shall have the duties and responsibilities\nassigned by [_____] upon initial hire and from time to time thereafter. Employee shall perform faithfully and diligently all duties assigned to\nEmployee. The Company reserves the right to modify Employee’s position and duties at any time in its sole and absolute discretion, provided\nthat the duties assigned are consistent with the position of a senior executive and that Employee continues to report to [_____] or such other\nposition of a similar or more senior level.\n(b) Best Efforts/Full-time. To the maximum extent permitted by law, Employee agrees to devote Employee’s best efforts and\nentire business time and attention to the Company’s business during the term of Employee’s employment with the Company. Employee agrees\nthat, during the term of Employee’s employment, except as otherwise approved in writing by the Company, which approval the Company may in\nits absolute discretion withhold, Employee will not, either directly or indirectly, or for himself/herself or through, on behalf of, or in conjunction\nwith any person, persons or legal entity, operate, engage in, assist, or be employed by any business activity to or for the benefit of any person or\nentity other than the Company; provided that the foregoing is not intended to prevent an Employee from pursuing hobbies or participating in any\nother activity that is not to the detriment of the Company. Employee further acknowledges and agrees that Employee has access to the\nCompany’s Core Values & Code of Ethics (the “Code of Ethics”) located at www.cognizant.com, and Employee has read and understands the\nCode of Ethics and shall abide by all the terms of said Code of Ethics, as may be amended from time to time, and said Code of Ethics shall be\nincorporated into this Agreement. Employee will abide by all policies and decisions made by the Company, as well as all applicable federal, state\nand local laws, regulations or ordinances. Employee will act in the best interest of the Company at all times.\n(c) Work Location. Employee’s principal place of work shall be located in [_____], or such other location as the parties may\nagree upon from time to time.\n4. At-Will Employment. Employee’s employment with the Company will be “at will,” meaning it is for no specified term and may be\nterminated by Employee or the Company at any time, with or without Cause or advance notice, subject to the provisions of Section 9 below.\n5. Compensation.\n(a) Annual Base Salary. As compensation for Employee’s performance of Employee’s duties hereunder, the Company shall\npay to Employee a base salary as most recently determined by the Compensation\n-2-\nCommittee of the Board and last communicated to the Employee, as may be modified by the Compensation Committee of the Board, payable in\naccordance with the normal payroll practices of the Company, less required deductions for state and federal withholding tax, social security and\nall other employment taxes and payroll deductions. In the event Employee’s employment under this Agreement is terminated by either Party, for\nany reason, Employee will earn the Annual Base Salary prorated to Employee’s Termination Date.\n(b) Incentive Compensation. Employee will be eligible to earn incentive compensation as determined by the Compensation\nCommittee of the Board in accordance with the bonus plan(s) provided to Employee by the Company, in accordance with the terms and\nconditions of such plan(s).\n(c) [Stock Options and Other Equity Awards. Except as set forth herein, this Agreement does not modify or change the\nexisting agreements regarding stock options, stock appreciation rights, restricted stock awards and restricted stock units (each, an “Equity\nAward” and collectively, “Equity Awards”) previously issued to Employee.]\n6. Customary Fringe Benefits. Employee will be eligible for all customary and usual fringe benefits generally available to employees\nof the Company subject to the terms and conditions of the Company’s benefit plan documents. The Company reserves the right to change or\neliminate the fringe benefits on a prospective basis, at any time, effective upon notice to Employee.\n7. Business Expenses. Employee will be reimbursed for all reasonable, out-of-pocket business expenses incurred in the performance\nof Employee’s duties on behalf of the Company. To obtain reimbursement, expenses must be submitted promptly with appropriate supporting\ndocumentation in accordance with the Company’s policies.\n8. Company Access. Employee agrees and consents that, during the term of Employee’s employment with the Company and\nthereafter, the Company may review, audit, intercept, access and disclose all messages created, received or sent over the electronic mail and\ninternet access system provided by the Company with or without notice to Employee and that such review, audit, interception, access, or\ndisclosure may occur during or after working hours. Employee further consents and agrees that the Company may, at any time, access and review\nthe contents of all computers, computer disks, other data storage equipment and devices, files, desks, drawers, closets, cabinets and work stations\nthat are either on the Company’s premises or that are owned or provided by the Company.\n9. Involuntary Termination of Employment.\n(a) Prior to a Change in Control. In the event that Employee’s employment with the Company is involuntarily terminated by\nthe Company for any reason other than Cause, death or Disability or in the event Employee resigns his employment for Good Reason pursuant to\nSection 10 and the Company’s right to cure (as set forth in Section 10) has expired (an “Involuntary Termination”), and in either such case\nEmployee’s employment termination becomes effective before any Change in Control (as defined in Section 9(d) below) has occurred following\nthe date of this Agreement, Employee shall be entitled to the payments and benefits described below, provided that Employee executes and does\nnot revoke the Release (as defined in Section 13) and the Release first becomes effective:\n(i) Employee shall receive a cash payment equal to one (1) times Employee’s Annual Base Salary, such amount to\nbe paid in regular installments in accordance with the Company’s normal payroll practices over a period of twelve (12) months, commencing on\nor as soon as practicable after the date the Release becomes effective and within thirty-five (35) days following Employee’s Termination Date.\n(ii) Employee shall receive a cash payment equal to one (1) times the amount of the Employee’s target annual bonus\nfor the performance year in which the Employee’s Termination Date occurs. Payment shall be made in a lump sum payment on or as soon as\npracticable after the date the Release becomes effective and within thirty-five (35) days following Employee’s Termination Date.\n-3-\n(iii) The Company shall, for a period of eighteen (18) months following the Employee’s Termination Date, pay the\nEmployee each month an amount equal to the monthly COBRA medical insurance cost under the Company’s group medical plan for Employee\nand, where applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable, Employee’s spouse and\ndependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments\nspecified under this Section 9(a)(iii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage\nterminates for any reason before the expiration of the eighteen (18)‐month period. All Company payments under this Section 9(a)(iii) to the\nEmployee can be used for any purpose and will be reported as taxable payments.\n(iv) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with\nthe Company and would have vested had Employee remained employed by the Company during the twelve (12) month period following\nEmployee’s Termination Date shall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such\nEquity Awards shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) With respect to any outstanding Equity Award that was subject to vesting in whole or in part based on\nachievement of performance objective(s), to the extent that the applicable performance period has expired on or before Employee’s Termination\nDate, the performance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more\nfuture dates, the portion of such Equity Award that would have vested had Employee remained employed by the Company during the twelve (12)\nmonth period following Employee’s Termination Date shall become fully vested and exercisable as of Employee’s Termination Date. Such\nEquity Award shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(vi) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany. The payment of amounts described in this Section 9(a)(vi) are not conditioned upon the Release becoming effective unless the\napplicable benefit plan or program provides otherwise.\n(b) Coincident with or within One Year After a Change in Control. In the event that Employee suffers an Involuntary\nTermination that becomes effective coincident with, or within the twelve (12) month period immediately after, the first occurrence of a Change in\nControl following the date of this Agreement, Employee shall be entitled to the payments and benefits described below in this Section 9(b) in\nlieu of, and not in addition to, the payments and benefits described in Section 9(a); provided that Employee executes and does not revoke the\nRelease (as defined in Section 13) and the Release first becomes effective:\n(i) Employee shall receive a cash payment equal to two (2) times Employee’s Annual Base Salary, such amount to\nbe paid in regular installments in accordance with the Company’s normal payroll practices over a period of twenty-four (24) months,\ncommencing on or as soon as practicable after the date the Release becomes effective and within thirty-five (35) days following Employee’s\nTermination Date.\n(ii) Employee shall receive a cash payment equal to two (2) times the amount of the Employee’s target annual bonus\nfor the performance year in which the Employee’s Termination Date occurs. Payment shall be made in a lump sum payment on or as soon as\npracticable after the date the Release becomes effective and within thirty-five (35) days following Employee’s Termination Date.\n(iii) The Company shall, for a period of eighteen (18) months following the date of Employee’s Termination of\nEmployment, pay Employee each month an amount equal to the monthly COBRA medical insurance cost under the Company’s group medical\nplan for Employee and, where applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable,\nEmployee’s spouse and dependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further\nthat the payments specified under this Section 9(b)(iii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare\ncontinuation coverage terminates for any reason before the expiration of the eighteen (18)‐month\n-4-\nperiod. All Company payments under this Section 9(a)(iii) to the Employee can be used for any purpose and will be reported as taxable\npayments.\n(iv) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with\nthe Company shall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such vested Equity\nAwards shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(v) Outstanding Equity Awards the vesting of which is conditioned, in whole or in part, upon the achievement of\nperformance objectives shall become vested and exercisable as follows:\n(A) To the extent that the applicable performance period has expired on or before Employee’s Termination Date, the\nperformance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more\nfuture dates, such Equity Award shall become fully vested and exercisable as of Employee’s Termination Date.\n(B) To the extent that the applicable performance period has not expired on or before Employee’s Termination Date,\nthe Company shall pro-rate the performance objective(s) for the portion of the performance period that has transpired up to the date of\nclosing of the Change in Control, make a good faith determination of the level of achievement of such pro-rated performance objective\nas of such closing date, and treat as fully vested and exercisable a proportionate amount of such Equity Award that corresponds with the\nlevel of achievement of the pro-rated performance objective, disregarding any future service conditions that otherwise would apply to\nsuch Equity Award.\n(vi) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany. The payment of amounts described in this Section 9(b)(vi) are not conditioned upon the Release becoming effective unless the\napplicable benefit plan or program provides otherwise.\n(c) Notice of Termination. Any termination on account of this Section 9 shall be communicated by a Notice of Termination to\nthe other Party hereto given in accordance with Section 26 hereof.\n(d) Definition of Change in Control. For purposes of this Agreement, the term “Change in Control” shall have the meaning\nset forth in the Company’s 2017 Incentive Award Plan, as amended from time to time or any successor plan in effect as of Employee’s\nTermination Date.\n10. Resignation for Good Reason. If Employee provides notice of his intent to terminate for Good Reason, then, subject to the\nexpiration of the cure period and Employee’s actual termination as described below, such resignation shall be deemed an Involuntary Termination\nfor purposes of this Agreement and Employee shall be entitled to the payments and benefits described in Section 9 subject to the requirements set\nforth in this Agreement, including Section 13. Employee must provide written notice to the Company of his intent to terminate his employment\nfor Good Reason within thirty (30) days of the action or omission giving rise to such claim of Good Reason. Thereafter, the Company shall have\na period of thirty (30) days within which it may correct the event or action that constitutes the grounds for Good Reason as set forth in\nEmployee’s notice of termination. If the Company does not correct the event or action prior to the expiration of the foregoing cure period,\nEmployee must terminate his employment for Good Reason within thirty (30) days after the expiration of the cure period, in order for the\ntermination to be considered a Good Reason termination under this Agreement.\n11. Termination Due to Death. If Employee’s employment with the Company is terminated due to death, Employee shall be entitled to\nthe payments and benefits described below, provided that Employee’s estate executes and does not revoke the Release (as defined in Section 13)\nand the Release first becomes effective:\n(a) Employee shall receive a cash payment equal to (1) times the amount of the Employee’s target annual bonus for the\nperformance year in which the Employee’s Termination Date occurs, pro-rated based on\n-5-\nthe portion of such year that has elapsed as of Employee’s Termination Date. Payment shall be made in a lump sum payment on or as soon as\npracticable after the date the Release becomes effective and within thirty-five days following Employee’s Termination Date.\n(b) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the\nCompany shall automatically become fully vested and exercisable, as applicable, as of Employee’s Termination Date. Such vested Equity Awards\nshall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.\n(c) Outstanding Equity Awards the vesting of which is conditioned, in whole or in part, upon the achievement of performance\nobjectives shall become vested and exercisable as follows:\n(i) To the extent that the applicable performance period has expired on or before Employee’s Termination Date, the\nperformance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future\ndates, such Equity Award shall become fully vested and exercisable as of Employee’s Termination Date.\n(ii) To the extent that the applicable performance period has not expired on or before Employee’s Termination Date,\nthe Company shall pro-rate the performance objective(s) for the portion of the performance period that has transpired up to Employee’s\nTermination Date, make a good faith determination of the level of achievement of such pro-rated performance objective as of such Termination\nDate, and treat as fully vested and exercisable a proportionate amount of such Equity Award that corresponds with the level of achievement of\nthe pro-rated performance objective, disregarding any future service conditions that otherwise would apply to such Equity Award.\n(d) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany. The payment of amounts described in this Section 11(d) are not conditioned upon the Release becoming effective unless the applicable\nbenefit plan or program provides otherwise.\n12. Termination Due to Disability or For Cause. If Employee’s employment with the Company is terminated by the Company due to\nDisability or for Cause, Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s\nTermination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the\nCompany; all other Company obligations to Employee will be extinguished as of the Termination Date.\n13. Release. Notwithstanding the foregoing, no payments or benefits shall be provided under Sections 9, 10 and 11, as applicable\n(except for those payments that are owed pursuant to applicable law and/or are specifically not conditioned upon the execution of a release by\nEmployee or Employee’s estate, as applicable), unless Employee or his estate, if applicable, executes, and does not revoke, the Company’s then\nstandard written general release (the “Release”) of any and all claims against the Company and all related parties with respect to all matters\narising out of Employee’s employment by the Company (other than any entitlements under the terms of this Agreement or under any other plans\nor programs of the Company in which Employee participated and under which Employee has accrued and earned a benefit) or the termination\nthereof. The Company will provide Employee with the form of release agreement within seven days after Employee’s separation from service. To\nbe entitled to the severance or other benefits, Employee must execute and deliver to the Company the release agreement on or before the last day\nof the minimum required waiver consideration period provided under the Age Discrimination in Employment Act or other applicable law or such\nlater date specified in the release agreement. If Employee timely delivers an executed release agreement to the Company, and Employee does not\nrevoke the release agreement during the minimum revocation period required under applicable law, if any, the severance or other benefits shall be\npaid or commence being paid, as specified in this Agreement, subject to any delay required pursuant to Section 32(b) of this Agreement. If,\nhowever, the period during which Employee has discretion to execute or revoke the release agreement straddles two calendar years, the cash\nseverance or other benefits shall be paid or commence being paid, as applicable, as soon as practicable in the second of the two calendar years,\nregardless of within which calendar\n-6-\nyear Employee actually delivers the executed release agreement to the Company, subject to the release agreement first becoming effective.\nConsistent with section 409A of the Code, Employee may not, directly or indirectly, designate the calendar year of payment. Nothing in this\nSection 13 shall be construed to alter the terms of this Agreement that condition Employee’s entitlement to any severance or other benefits upon\nEmployee’s compliance with the restrictive covenants and any other terms and conditions specified in this Agreement.\n14. Other Payments. Any payments and benefits that become due under Sections 9, 10 and 11 hereof shall be in addition to (but not in\nduplication of) and not in lieu of any payments and benefits due to Employee under any other plan, policy or program of the Company, except\nthat Employee shall not be entitled to any payments and benefits under the Company’s then current severance pay policies.\n15. No Mitigation. Employee shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by\nseeking other employment or otherwise, nor shall the amount of any payment or benefit provided for herein be reduced by any compensation\nearned by other employment or otherwise; provided, however, that any obligation of the Company to make the payments described in Sections\n9(a)(iii) and 9(b)(iii) shall cease upon Employee becoming covered under a healthcare plan of another employer.\n16. Non-Exclusivity of Rights. Except as provided in Section 14, nothing in this Agreement shall prevent or limit Employee’s\n[continuing or] future participation in or rights under any benefit, bonus, incentive or other plan or program provided by the Company or any of\nits subsidiaries or affiliates and for which Employee may qualify.\n17. No Set-Off. Other than with respect to the Recoupment Policy (as hereinafter defined), the Company’s obligation to make the\npayments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any circumstances,\nincluding, without limitation, any set-off, counterclaim, recoupment, defense or other right that the Company may have against Employee or\nothers.\n18. Taxes.\n(a) All payments under this Agreement shall be made subject to applicable tax withholding, and the Company shall withhold\nfrom any payments under this Agreement all federal, state and local taxes as the Company is required to withhold pursuant to any law or\ngovernmental rule or regulation. Employee shall bear all expense of, and be solely responsible for, all federal, state, local or foreign taxes due\nwith respect to any payment received under this Agreement, including, without limitation, any excise tax imposed by Section 4999 of the Code.\n(b) If the payments and benefits received or to be received by Employee in connection with a Change in Control or the\ntermination of Employee’s employment (whether payable pursuant to the terms of this Agreement (“Contract Payments”) or any other plan,\narrangement or agreement with the Company or any affiliate (collectively with the Contract Payments, the “Total Payments”), would constitute a\n“parachute payment” under Section 280G of the Code, then the Total Payments shall be reduced, in the manner set forth below, by the minimum\namount necessary to result in no portion of the Total Payments being non‐deductible to the Company pursuant to Section 280G of the Code or\nsubject to the excise tax imposed under Section 4999 of the Code.\n(c) All determinations required to be made under this Section 18, including whether a reduction in Total Payments is\nrequired, the amount of any such reduction and the assumptions to be utilized in arriving at such determination, shall be made by an accounting\nor law firm of recognized standing reasonably selected by the Company (the “Firm”), which may be, but will not be required to be, the\nCompany’s independent auditors. The Firm shall submit its determination and detailed supporting calculations to both Employee and the\nCompany within fifteen (15) days after receipt of a notice from either the Company or Employee that Employee may receive payments that may\nbe “parachute payments.” If the Firm determines that a reduction is required by this Section 18, the Contract Payments consisting of cash\nseverance shall be reduced to the extent necessary so that no portion of the Total Payments shall be subject to the excise tax imposed by section\n4999 of the Code, and the Company shall pay such reduced amount to Employee in accordance with the terms of this Agreement. If additional\nContract Payments must be reduced pursuant to this Section 18 after the cash severance has been reduced to zero, the Contract Payments\nallocable to performance-vested Equity Awards shall next be reduced, followed by the\n-7-\nContract Payments allocable to time-vested Equity Awards, to the extent necessary to satisfy the requirements of this Section 18.\n(d) Employee and the Company shall each provide the Firm access to and copies of any books, records, and documents in the\npossession of Employee or the Company, as the case may be, reasonably requested by the Firm, and otherwise cooperate with the Firm in\nconnection with the preparation and issuance of the determinations and calculations contemplated by this Section 18. The fees and expenses of\nthe Firm for its services in connection with the determinations and calculations contemplated by this Section 18 shall be borne by the Company.\n19. Confidential Information. Employee agrees that Employee’s services to the Company [have been and will continue to be][will be]\nof a special, unique and extraordinary character, and that Employee’s position places Employee in a position of confidence and trust with the\nCompany’s customers and employees. Employee also recognizes that Employee’s position with the Company will give Employee substantial\naccess to Confidential Information (as defined below), the disclosure of which to competitors of the Company would cause the Company to\nsuffer substantial and irreparable damage. Employee recognizes, therefore, that it is in the Company’s legitimate business interest to restrict\nEmployee’s use of Confidential Information for any purposes other than the discharge of Employee’s employment duties at the Company, and to\nlimit any potential appropriation of Confidential Information by Employee for the benefit of the Company’s competitors and to the detriment of\nthe Company. Accordingly, Employee agrees as follows:\n(a) Employee will not at any time, whether during or after the termination of Employee’s employment, reveal to any person\nor entity any of the trade secrets or confidential information of the Company or of any third party that the Company is under an obligation to\nkeep confidential (including but not limited to trade secrets or confidential information respecting inventions, products, designs, methods, know-\nhow, techniques, systems, processes, software programs, works of authorship, customer lists, projects, plans and proposals) (“Confidential\nInformation”), except as may be required in the ordinary course of performing Employee’s duties as an employee of the Company, and Employee\nshall keep secret all matters entrusted to Employee and shall not use or attempt to use any such information in any manner that may injure or\ncause loss or may be calculated to injure or cause loss whether directly or indirectly to the Company. By way of example and not limitation,\nConfidential Information also includes any and all information, whether or not meeting the legal definition of a trade secret, concerning the\nCompany’s actual, planned or contemplated: (i) marketing plans, business plans, strategies, forecasts, budgets, projections and costs; (ii)\npersonnel information; (iii) customer, vendor and supplier lists; (iv) customer, vendor and supplier needs, transaction histories, contacts,\nvolumes, characteristics, agreements and prices; (v) promotions, operations, sales, marketing, and research and development; (vi) business\noperations, internal structures and financial affairs; (vii) software and operating systems and procedures; (viii) pricing structure of the Company’s\nservices and products; (ix) proposed services and products; (x) contracts with other parties; (xi) performance characteristics of the Company’s\nproducts; and (xii) Inventions and Works (each as defined in Section 20). Confidential Information also includes any and all information of\nCompany’s clients and customers that is deemed confidential by such clients and customers (whether past, present or potential), including, but\nnot limited to: marketing tools, inventions, processes, contact lists, materials, software program code, logic diagrams, flow charts, procedural\ndiagrams, computer programming techniques and know how, maps and any documentation related thereto.\n(b) The above restrictions shall not apply to: (i) information that at the time of disclosure is in the public domain through no\nfault of Employee; (ii) information received from a third party outside of the Company that was publicly disclosed without a breach of any\nconfidentiality obligation; or (iii) information approved for release by written authorization of the Company. In addition, in the event that\nEmployee is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative\ndemand or similar process) to disclose any of the Confidential Information, it is agreed that Employee will provide the Company with prompt\nnotice of such request(s) so that the Company may seek an appropriate protective order or other appropriate remedy and/or waive compliance\nwith the confidentiality provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or the Company\ngrants a waiver hereunder, Employee may furnish that portion (and only that portion) of the Confidential Information that Employee is legally\n-8-\ncompelled to disclose and will exercise its reasonable best efforts to obtain reliable assurance that confidential treatment will be accorded any\nConfidential Information so furnished.\n(c) Further, Employee agrees that during Employee’s employment Employee shall not take, use or permit to be used any\nnotes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other materials of any\nnature relating to any matter within the scope of the business of the Company or concerning any of its dealings or affairs otherwise than for the\nbenefit of the Company. Employee further agrees that Employee shall not, after the termination of Employee’s employment, use or permit to be\nused any such notes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation or other\nmaterials, it being agreed that all of the foregoing shall be and remain the sole and exclusive property of the Company and that, immediately\nupon the termination of Employee’s employment, Employee shall deliver all of the foregoing plus any other Confidential Information, and all\ncopies thereof, to the Company, at its main office.\n(d) Employee agrees that upon the termination of Employee’s employment with the Company, Employee will not take or\nretain without written authorization any documents, files or other property of the Company, and Employee will return promptly to the Company\nany such documents, files or property in Employee’s possession or custody, including any copies thereof maintained in any medium or format.\nEmployee recognizes that all documents, files and property that Employee has received and will receive from the Company, including but not\nlimited to scientific research, customer lists, handbooks, memoranda, product specifications, and other materials (with the exception of\ndocuments relating to benefits to which Employee might be entitled following the termination of Employee’s employment with the Company),\nare for the exclusive use of the Company and employees who are discharging their responsibilities on behalf of the Company, and that Employee\nhas no claim or right to the continued use, possession or custody of such documents, files or property following the termination of Employee’s\nemployment with the Company.\n(e) Employee acknowledges that the Company has provided Employee with the following notice of immunity rights in\ncompliance with the requirements of the Defend Trade Secrets Act of 2016: (i) Employee shall not be held criminally or civilly liable under any\nU.S. federal or state trade secret law for the disclosure of Confidential Information that is made in confidence to a U.S. federal, state or local\ngovernment official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law; (ii) Employee shall not be\nheld criminally or civilly liable under any U.S. federal or state trade secret law for the disclosure of Confidential Information that is made in a\ncomplaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; and (iii) if Employee files a lawsuit for\nretaliation by the Company for reporting a suspected violation of law, Employee may disclose the Confidential Information to Employee’s\nattorney and use the Confidential Information in the court proceeding, if Employee files any document containing the Confidential Information\nunder seal, and does not disclose the Confidential Information, except pursuant to court order. However, under no circumstance will Employee be\nauthorized to disclose any information covered by attorney-client privilege or attorney work product of the Company without prior written\nconsent of the Company’s General Counsel or other officer designated by the Company. Notwithstanding anything to the contrary contained\nherein, no provision of this Agreement shall be interpreted so as to impede Employee (or any other individual) from reporting possible violations\nof U.S. federal law or regulation to any governmental agency or entity, including but not limited to the U.S. Department of Justice, the U.S.\nSecurities and Exchange Commission, the U.S. Congress, and any agency Inspector General of the U.S. government, or making other disclosures\nunder the whistleblower provisions of U.S. federal law or regulation. Employee does not need the prior authorization of the Company to make\nany such reports or disclosures and Employee shall not be not required to notify the Company that such reports or disclosures have been made.\n20. Intellectual Property.\n(a) Employee agrees to disclose fully, promptly, and in writing to the Company any and all Inventions and Works (each as\ndefined below) that are conceived, made, reduced to practice, developed, authored, created, drawn or written at any time while Employee is\nemployed by the Company and for a period of six (6) months thereafter. Employee will generate and provide to the Company adequate and\ncurrent written records of all\n-9-\nInventions and Works in the form of notes, sketches, drawings, reports, flow charts, procedural diagrams, logic diagrams, software program code,\nprocedural diagrams, computer programming techniques or other documents relating thereto or in such other form as will be requested by the\nCompany, which records and any copies thereof will be and will remain the exclusive property of the Company and will be available to the\nCompany at all times, along with all available information relating thereto (with all necessary plans and models) to the Company.\n(b) The Company and Employee agree that “Inventions,” is defined in this Agreement to include any and all new or useful\nideas, developments, discoveries, improvements, designs, formulas, modifications, trademarks, service marks, trade secrets, and other intellectual\nproperty, whether patentable or not (including without limitation any technology, computer programs, software, software program code, logic\ndiagrams, flow charts, procedural diagrams, computer programming techniques, test, concept, idea, process, method, composition of matter,\nformula or technique), and all know-how related thereto, that Employee conceives, makes, reduces to practice, or develops, solely or jointly with\nothers (i) that relate to the actual or contemplated business, work or activities of the Company, (ii) that result from or are suggested by any work\nwhich Employee [has done or] may do on behalf of the Company, or by any information that Employee may receive by virtue of Employee’s\nemployment by the Company, or (iii) that are developed, tested, improved or investigated either in part or entirely on time for which Employee\nwas paid by the Company, or with the use of premises, equipment or property provided, owned, leased, or contracted for by or on behalf of the\nCompany.\n(c) The Company and Employee agree that “Works” is defined in this Agreement to include any and all materials for which\ncopyright protection may be obtained, including without limitation literary works (including books, pamphlets, articles and other writings), mask\nworks, artistic works (including designs, graphs, drawings, blueprints and other graphic works), computer programs, software program code,\nlogic diagrams, flow charts, procedural diagrams, computer programming, compilations, recordings, photographs, motion pictures and other\naudio-visual works that Employee authors, conceives, creates, draws, makes, or writes, solely or jointly with others (i) that relate to the actual or\ncontemplated business, work or activities of the Company, (ii) that result from or are suggested by any work which Employee has done or may\ndo on behalf of the Company, or by any information that Employee may receive by virtue of Employee’s employment by the Company, or\n(iii) that are developed, tested, improved or investigated either in part or entirely on time for which Employee was paid by the Company, or with\nthe use of premises, equipment or property provided, owned, leased, or contracted for, by, or on behalf of the Company.\n(d) Employee agrees to assign, transfer and convey, and hereby assigns, transfers and conveys to the Company all of the\nrights, titles and interests in and to any and all such Inventions and Works that Employee [has or] may acquire in such Inventions or Works that\nare conceived, made, reduced to practice, developed, authored, created, drawn or written at any time while Employee is employed by the\nCompany and for a period of six (6) months thereafter. Employee agrees that the Company will be the sole owner of all patents, copyrights,\ntrademarks and other intellectual property rights in connection therewith, and agrees to take all such actions as may be requested by the Company\nduring Employee’s employment with the Company and at any time thereafter, with respect to any such Inventions or Works to confirm or\nevidence such assignment, transfer, conveyance or ownership, and to assist in the Company’s maintenance, enforcement, license, assignment,\ntransfer, or conveyance of rights in respect of the Inventions or Works.\n(e) By way of example and not limitation, at any time and from time to time, upon the request of the Company, Employee\nagrees to execute, acknowledge, swear to, seal and deliver to the Company, any and all lawful instruments, documents and papers, give evidence\nand do any and all other lawful acts that, in the opinion of the Company, are or may be necessary or desirable to document such assignment,\ntransfer and conveyance or to enable the Company to file and prosecute applications for and to acquire, maintain and enforce any and all patents,\ntrademarks, copyrights and other property rights under United States, local, state or foreign law with respect to any such Inventions or Works or\nto obtain any extension, validation, reissue, continuance or renewal of any such patent, trademark, copyright, or other intellectual property right.\nBy way of further example and not limitation, Employee agrees to meet with the Company representatives or attorneys for the purpose of\ninitiating, maintaining or defending litigation, administrative or other proceedings; and to participate fully in litigation, administrative or other\nproceedings as requested by the Company. In the event that the Company may be unable, for\n-10-\nany reason whatsoever, after reasonable effort, to secure Employee’s signature on any patent, copyright, trademark or other intellectual property\napplication or other papers, Employee hereby irrevocably designates and appoints the Company and its duly authorized officers and agents, as\nEmployee’s agent and attorney-in-fact to act for and on behalf of Employee to execute, acknowledge, swear to, seal and deliver to the Company\nand to file any such application or applications or other papers, and to do all other lawfully permitted acts to further the provisions of this Section\n20 of this Agreement.\n(f) The Company agrees to reimburse Employee for reasonable expenses incurred by Employee in complying with the\nprovisions of Sections 20(d) and 20(e) of this Agreement. The Company and Employee agree that Employee is not entitled to additional\ncompensation beyond that paid to Employee for the period of time that he is employed by the Company, which compensation, along with the\nCompany’s understandings set forth in this Agreement, is expressly acknowledged to be adequate consideration for all of the Employee promises\nand obligations set forth in this Agreement.\n(g) Employee expressly acknowledges and states that all Works that are made by Employee (solely or jointly with others) are\nbeing created at the instance of the Company and are “works made for hire,” as that term is defined in the Copyright Act of 1976, 17 USC § 101.\nIn the event that such laws are inapplicable or in the event that any such Works, or any part thereof, are determined by a court of competent\njurisdiction not to be a work made for hire, this Agreement will operate as an irrevocable and unconditional assignment by Employee to the\nCompany of all Employee’s right, title and interest (including, without limitation, all rights in and to the copyrights throughout the world,\nincluding the right to prepare derivative works and the rights to all renewals and extensions) in the Works in perpetuity.\n(h) Employee represents that Attachment A to this Agreement describes all inventions and works, whether patentable or not,\nthat have been conceived, made, reduced to practice, developed, authored, created, drawn or written prior to Employee’s employment by the\nCompany; provided, however, that, Employee has not disclosed in Attachment A information that is a trade secret belonging to another, or that is\nthe subject of a contract preventing Employee’s disclosure of the information to the Company.\n21. Non-Competition and Non-Solicitation. In further consideration of the compensation to be paid to Employee hereunder, Employee\nacknowledges that during the course of Employee’s employment with the Company, the Company will provide Employee Confidential\nInformation, which Employee promises to not disclose. Further, Employee will become and/or remain familiar with the Company’s trade secrets\nand with other Confidential Information concerning the Company and that Employee’s services shall be of special, unique and extraordinary\nvalue to the Company, and therefore, the Employee agrees that some restrictions on Employee’s activities during and after Employee’s\nemployment are necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company:\n(a) During the period of Employee’s employment by the Company and, if Employee’s employment with the Company\nterminates for any reason, for a period of one (1) year thereafter (“Covenant Period”), except with the written consent of the Board, Employee\nshall not directly or indirectly, own, control, finance or participate in the ownership, control or financing of, or be employed by or provide\nservices to, any Competitor. For the purposes of this Agreement, a “Competitor” is defined as a person, business or enterprise (including\ndivisions of persons, businesses and enterprises) that directly or indirectly engages in services of the type conducted, authorized, offered or\nprovided by the Company (the “Restricted Business”) in the Territory. Without limiting the foregoing, for purposes of this Agreement, each\nentity listed on Attachment B, as shall be modified from time to time by the Company upon written notice to Employee, shall constitute a\n“Competitor.” For purposes of this Agreement, “Territory” is defined as the territory or territories within which Employee actually worked, or in\nrespect of which Employee was involved in providing services, during the twelve (12) month period prior to Employee’s Termination Date.\nNotwithstanding the foregoing, nothing herein shall prevent Employee from providing services to, or being employed by, or owning, controlling,\nfinancing or participating in the ownership, control or financing of, any diversified entity or other person (other than the entities listed on\nAttachment B) that is engaged in the Restricted Business, so long as (i) the Restricted Business does not constitute greater than 25% of the\naggregate revenue of such diversified entity or other person and (ii) Employee is not employed within and does not have\n-11-\ninvolvement with business development or business strategy with respect to the Restricted Business. In further consideration for the Company’s\npromises herein, Employee agrees that during the Covenant Period, Employee will not directly or indirectly (i) solicit, entice, induce, cause,\nencourage or recruit any part-time or full-time employee, representative, consultant, customer, subscriber or supplier of the Company or its\nsubsidiaries or affiliates to work for, provide services to or do business with a third party other than the Company or its subsidiaries or affiliates\nor engage in any activity that would cause any employee, representative, consultant, customer, subscriber or supplier to violate any agreement\nwith the Company or its subsidiaries or affiliates or otherwise terminate or change its relationship with the Company or its subsidiaries or\naffiliates or (ii) hire any current or former part-time or full-time employee, representative or consultant of the Company or its Affiliates who was\nemployed or engaged by the Company or its subsidiaries or affiliates at any time during the twelve (12) month period prior to Employee’s\nTermination Date or who thereafter becomes employed or engaged by the Company or its subsidiaries or affiliates.\n(b) The foregoing restrictions shall not be construed to prohibit Employee’s ownership of less than one percent (1%) of any\nclass of securities of any corporation that is engaged in any of the foregoing businesses and has a class of securities registered pursuant to the\nSecurities Exchange Act of 1934, as amended, provided that such ownership represents a passive investment and that neither Employee nor any\ngroup of persons including Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees\nany of its financial obligations, otherwise takes any part in its business, other than exercising Employee’s rights as a stockholder, or seeks to do\nany of the foregoing.\n22. Employee Representations.\n(a) Employee represents and warrants that this Agreement and his employment by the Company does not conflict with and\nwill not be constrained by any prior business relationship or contract, that Employee does not possess trade secrets or other proprietary\ninformation arising out of any prior business relationship or contract that, in Employee’s best judgment would be utilized in connection with\nEmployee’s employment with the Company. Employee further agrees that he will not disclose any such trade secrets or other proprietary\ninformation to the Company or others.\n(b) Employee represents and warrants that (i) before signing this Agreement, he has read this Agreement and is entering into\nthis Agreement freely and with knowledge of its contents with the intent to be bound by it and the restrictions contained herein; (ii) Employee\nhas been advised by the Company to consult Employee’s own legal counsel in respect of this Agreement, and Employee has had full opportunity,\nprior to execution of this Agreement, to review thoroughly this Agreement with Employee’s counsel; (iii) the restrictions imposed on Employee\nby this Agreement are fair, reasonable and proper and required for the protection of the Company’s business interests, particularly its investments\nin Employee (e.g ., Employee’s job knowledge and skills), its Confidential Information, as well as the goodwill developed, and its business\nrelationships, with its clients, customers and prospective clients and customers; (iv) the Company would not have entered into this Agreement in\nthe absence of such restrictions, and that any violation of any provision of Sections 19, 20 or 21 hereof will result in irreparable injury to the\nCompany; and (v) the restrictions imposed on Employee by this Agreement, particularly, the post-termination restrictions, shall not preclude\nEmployee from earning a living or engaging in Employee’s profession or trade, or pursuing a career or a business, in each case at the same\ngeneral level of economic benefit as is currently the case.\n23. Consequences of Breach of Covenants; Equitable Relief.\n(a) Employee agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity\nof proving actual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of Sections 19,\n20, and 21 hereof, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled. The\nperiod of the injunction shall be measured from the date of a court order granting the injunctive relief. In the event that any of the provisions of\nSections 19, 20, and 21 hereof should ever be adjudicated to exceed the time, geographic, service, or other limitations permitted by applicable\nlaw in any jurisdiction, then such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic, service, or other\nlimitations permitted by applicable law.\n-12-\n(b) Notwithstanding anything to the contrary herein, Employee acknowledges and agrees that the severance payments and\nbenefits provided herein are being provided by the Company to Employee, among other things, as additional consideration and solely for\nEmployee’s agreement with and adherence to the post-employment restrictive covenants in Section 21 (a)-(c) and Employee’s other promises,\ncovenants, commitments and obligations in this Agreement (including the releases granted in Section 13), the adequacy and sufficiency of which\nEmployee expressly acknowledges. Employee agrees that should the Company, in its sole discretion, deem Employee to be in violation of any\nprovision(s) in said Section 21 (a)-(c), the Company may immediately cease payment of all or any portion of the severance payments and\nbenefits provided hereunder. Employee acknowledges that the severance payments and benefits provided for herein are in addition to anything of\nvalue to which Employee was already entitled.\n(c) Employee irrevocably and unconditionally (i) agrees that any suit, action or other legal proceeding arising out of Section\n19, 20, and 21 hereof, including without limitation, any action commenced by the Company for preliminary and permanent injunctive relief or\nother equitable relief, may be brought in the United States District Court for the District of New Jersey, or if such court does not have jurisdiction\nor will not accept jurisdiction, in any court of general jurisdiction in New Jersey, (ii) consents to the non-exclusive jurisdiction of any such court\nin any such suit, action or proceeding, and (iii) waives any objection that Employee may have to the laying of venue of any such suit, action or\nproceeding in any such court. Employee also irrevocably and unconditionally consents to the service of any process, pleadings, notices or other\npapers in a manner permitted by the notice provisions of Section 26 hereof.\n24. Term of Agreement. This Agreement shall continue in full force and effect for the duration of Employee’s employment with the\nCompany; provided, however, that after the termination of Employee’s employment during the term of this Agreement, this Agreement shall\nremain in effect until all of the obligations of the Parties hereunder are satisfied or have expired.\n25. Successor Company. The Company shall require any successor or successors (whether direct or indirect, by purchase, merger,\nconsolidation or otherwise) to all or substantially all of the business and/or assets of the Company, by agreement in form and substance\nsatisfactory to Employee, to acknowledge expressly that this Agreement is binding upon and enforceable against the Company in accordance\nwith the terms hereof, and to become jointly and severally obligated with the Company to perform this Agreement in the same manner and to the\nsame extent that the Company would be required to perform if no such succession or successions had taken place. Failure of the Company to\nobtain such agreement prior to the effectiveness of any such succession shall be a breach of this Agreement. As used in this Agreement, the\nCompany shall mean the Company as hereinbefore defined and any such successor or successors to its business and/or assets, jointly and\nseverally.\n26. Notice. All notices and other communications required or permitted hereunder or necessary or convenient in connection herewith\nshall be in writing and shall be delivered personally or mailed by registered or certified mail, return receipt requested, or by overnight express\ncourier service, as follows:\nIf to the Company, to:\nCognizant Technology Solutions Corporation\n500 Frank W. Burr Blvd.\nTeaneck, NJ 07666\nAttn: General Counsel\nIf to Employee, to:\n[__________]\n-13-\nor to such other names or addresses as the Company or Employee, as the case may be, shall designate by notice to the other Parties hereto in the\nmanner specified in this Section; provided, however, that if no such notice is given by the Company following a change in control, notice at the\nlast address of the Company or to any successor pursuant to this Section 26 shall be deemed sufficient for the purposes hereof. Any such notice\nshall be deemed delivered and effective when received in the case of personal delivery, five days after deposit, postage prepaid, with the U.S.\nPostal Service in the case of registered or certified mail, or on the next business day in the case of overnight express courier service.\n27. Governing Law. This Agreement shall be governed by and interpreted under the laws of the State of New Jersey without giving\neffect to any conflict of laws provisions.\n28. Contents of Agreement, Amendment and Assignment.\n(a) This Agreement, including the Code of Ethics, supersedes all prior agreements with respect to the subject matter hereof,\nsets forth the entire understanding between the Parties hereto with respect to the subject matter hereof and cannot be changed, modified, extended\nor terminated except upon written amendment executed by Employee and executed on the Company’s behalf by a duly authorized officer, except\nfor revisions or additions to Attachment B, which may be unilaterally modified by the Company upon written notice to Employee[; provided,\nhowever, that this Agreement, except as expressly set forth in Section 9, does not supersede, modify or change any existing written award\nagreements regarding stock options, stock appreciation rights, restricted stock awards, restricted stock units, performance awards, performance\nunits or other stock-based awards issued to Employee prior to the effective date of this Agreement]. The provisions of this Agreement may\nprovide for payments to Employee under certain compensation or bonus plans under circumstances where such plans would not provide for\npayment thereof. It is the specific intention of the Parties that the provisions of this Agreement shall supersede any provisions to the contrary in\nsuch plans, and such plans shall be deemed to have been amended to correspond with this Agreement without further action by the Company, the\nCompany’s Board of Directors or the Board unless such amendment would contravene the provisions of section 409A of the Code and result in\nthe imposition of additional taxes under section 409A of the Code upon Employee.\n(b) Nothing in this Agreement shall be construed as giving Employee any right to be retained in the employ of the Company,\nor as changing or modifying the “at will” nature of Employee’s employment status.\n(c) All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by\nthe respective heirs, representatives, successors and assigns of the Parties hereto, except that the duties and responsibilities of Employee and the\nCompany hereunder shall not be assignable in whole or in part by the Company. If Employee should die after Employee’s Termination Date and\nwhile any amount payable hereunder would still be payable to Employee hereunder if Employee had continued to live, all such amounts, unless\notherwise provided herein, shall be paid in accordance with the terms of this Agreement to Employee’s devises, legates or other designees or, if\nthere is no such designee, to Employee’s estate.\n29. Severability. If any provision of this Agreement is declared illegal, invalid, or otherwise unenforceable by a court of competent\njurisdiction, such provision shall be reformed, if possible, to the extent necessary to render it legal, valid, and enforceable, or otherwise deleted,\nand the remainder of the terms of this Agreement shall not be affected except to the extent necessary to reform or delete such illegal, invalid, or\nunenforceable provision.\n30. Remedies Cumulative; No Waiver. No right conferred upon the Parties by this Agreement is intended to be exclusive of any other\nright or remedy, and each and every such right or remedy shall be cumulative and shall be in addition to any other right or remedy given\nhereunder or now or hereafter existing at law or in equity. No delay or omission by a Party in exercising any right, remedy or power hereunder or\nexisting at law or in equity shall be construed as a waiver thereof.\n31. Miscellaneous. All section headings are for convenience only. This Agreement may be executed in several counterparts, each of\nwhich is an original. It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any of the\nother counterparts.\n- 14-\n32. Section 409A.\n(a) Interpretation. This Agreement is intended to comply with the requirements of Section 409A of the Code to the extent\napplicable or to be exempt from Section 409A of the Code pursuant to the “short-term deferral exception” under Treas. Reg. section 1.409A-1(b)\n(4) or the “separation pay exception” under Treas. Reg. Section 1.409A-1(b)(9)(iii), and shall in all respects be administered and construed in\naccordance with Section 409A of the Code. If any payment or benefit hereunder cannot be provided or made at the time specified herein without\nincurring sanctions on Employee under Section 409A of the Code, then such payment or benefit shall be provided in full at the earliest time\nthereafter when such sanctions will not be imposed. For purposes of Section 409A of the Code, all payments to be made upon a Termination of\nEmployment under this Agreement may only be made upon a “separation from service” (within the meaning of such term under Section 409A of\nthe Code), each payment made under this Agreement shall be treated as a separate payment, the right to a series of installment payments under\nthis Agreement is to be treated as a right to a series of separate payments, and if a payment is not made by the designated payment date under this\nAgreement, the payment shall be made by December 31 of the calendar year in which the designated date occurs. To the extent that any payment\nprovided for hereunder would be subject to additional tax under Section 409A of the Code, or would cause the administration of this Agreement\nto fail to satisfy the requirements of Section 409A of the Code, such provision shall be deemed null and void to the extent permitted by\napplicable law, and, to the extent applicable, any such amount shall be payable in accordance with Section 32(b). In no event shall the Employee,\ndirectly or indirectly, designate the calendar year of payment. Nothing herein shall be construed as having modified the time and form of\npayment of any amounts or payments of “deferred compensation” (as defined under Treas. Reg. Section 1.409A-1(b)(1), after giving effect to the\nexemptions in Treas. Reg. Sections 1.409A-1(b)(3) through (b)(12)) that were otherwise payable pursuant to the terms of any agreement between\nthe Company and Employee in effect on or after January 1, 2005 and prior to the date of this Agreement.\n(b) Payment Delay. Notwithstanding anything herein to the contrary, if it is necessary to postpone the commencement of any\npayments or benefits otherwise payable under this Agreement as a result of Employee’s “separation from service” with the Company to prevent\nthe imposition of any accelerated or additional tax under Section 409A of the Code, then the Company will postpone the commencement of the\npayment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to\nEmployee) that are not otherwise paid within the “short-term deferral exception” under Treas. Reg. Section 1.409A-1(b)(4) and the “separation\npay exception” under Treas. Reg. Section 1.409A-1(b)(9)(iii), until the first payroll date that occurs after the date that is six months following\nEmployee’s “separation of service” with the Company. If any payments are postponed due to such requirements, such postponed amounts will be\npaid to Employee in a lump sum on the first payroll date that occurs after the date that is six months following Employee’s “separation of\nservice” with the Company. If Employee dies during the postponement period prior to the payment of the postponed amount, the amounts\nwithheld on account of Section 409A of the Code shall be paid to the personal representative of Employee’s estate within sixty (60) days after the\ndate of the Employee’s death.\n(c) Reimbursements. All reimbursements provided under this Agreement shall be made or provided in accordance with the\nrequirements of Section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred\nduring Employee’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the amount of expenses eligible for\nreimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (iii) the reimbursement\nof an eligible expense will be made on or before the last day of the taxable year following the year in which the expense is incurred, and (iv) the\nright to reimbursement is not subject to liquidation or exchange for another benefit.\n33. Recoupment Policy. Employee acknowledges that Employee shall be subject to and hereby agrees to abide by the terms of any\nclawback or recoupment policy that the Company has adopted or may hereafter adopt, as may be amended from time to time, with or without\nnotice (the “Recoupment Policy”) to further the Company’s interests in enhancing its corporate governance practices and/or to comply with\napplicable law, rules or regulations promulgated by the Securities and Exchange Commission or the rules of the national securities exchange on\nwhich shares of the common stock of the Company are listed for trade. Employee understands that pursuant to the Recoupment Policy, the\nCompany may seek to recoup all or part of any severance payments, bonus or other\n- 15-\nincentive compensation paid to certain officers and former officers, including Equity Awards, in the event that the Company is required to restate\nits financial statements. In consideration of the [continued] benefits to be received from the Company (or a subsidiary) and the right to participate\nin, and receive future awards under, the Company’s cash and equity-based incentive programs, Employee hereby acknowledges, understands and\nagrees that:\n(a) The Recoupment Policy applies to severance, cash bonuses and other incentive compensation, including Equity Awards,\npaid or awarded to Employee prior to or after the date on which the Recoupment Policy is adopted, and Employee agrees that, to the extent\nprovided in the Recoupment Policy, the Recoupment Policy shall apply to equity and other award agreements outstanding as of the date of this\nAgreement or hereafter executed, and such agreements shall be deemed amended by, and to incorporate, the terms of the Recoupment Policy\neven if the Recoupment Policy is not explicitly referenced therein;\n(b) The Company shall be fully entitled to enforce the Recoupment Policy against Employee in accordance with its terms,\nand Employee promptly shall comply with any demand authorized by the Board of Directors of the Company pursuant to the terms of the\nRecoupment Policy for repayment, return or rescission of, severance payments, a cash bonus or other incentive compensation, including Equity\nAwards, subject to the Recoupment Policy; and\n(c) Nothing in this acknowledgement shall be construed to expand the scope or terms of the Recoupment Policy, and\nEmployee is not waiving any defenses Employee may have in the event of an action for recoupment of compensation under the Recoupment\nPolicy, other than (i) waiving any defense regarding the retroactive application of the Recoupment Policy to prior or existing payments or awards\nand (ii) waiving any claim that the integration clause of any agreement excludes the application of the Recoupment Policy.\n[Signature Page Follows]\n-16-\nIN WITNESS WHEREOF, the undersigned, intending to be legally bound, have executed this Agreement as of the date first above\nwritten.\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nName:\nTitle:\n[NAME OF EXECUTIVE]\n- 17-\nATTACHMENT A\n1.\nThe following is a complete list of all inventions and works that have been conceived, made, reduced to practice, developed,\nauthored, created, drawn or written by me alone or jointly with others prior to my engagement by the Company.\n☐ None.\n_______________________________________________________________________\n_______________________________________________________________________\n_______________________________________________________________________\n_______________________________________________________________________\n_______________________________________________________________________\n☐\nDue to a preexisting contract with another party, I cannot disclose certain Inventions or Works that would otherwise be\nincluded on the above-described list.\n☐ Additional sheets are attached.\n(number)\nEMPLOYEE:\nSignature:\nName:\n(Print)\nTitle:\nDate:\n-18-\nATTACHMENT B – List of Direct Competitors\n1.\nInternational Business Machines Corporation\n2.\nAccenture LTD\n3.\nCap Gemini S.A.\n4.\nTata Consultancy Services\n5.\nInfosys Limited\n6.\nWipro Limited\n7.\nHCL Technologies Limited\n8.\nDXC Technology Company\n-19-
+86700bef2a964227f73f0dcd135616f7.pdf	effective_date jurisdiction party term	EX-10.94 5 dex1094.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.94\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Agreement is between Joseph M. Squeri (hereafter “You”) and Comstock Homebuilding Companies, Inc., its affiliates, successors,\nassigns, parents and subsidiaries (hereafter “the Company”), effective this day of August, 2010. You are entering into this Agreement based on\nconsideration to You from the Company, including the grant of equity in the Company to You, Your employment and continued employment with\nthe Company, and such other benefits that You acknowledge to be sufficient consideration for this Agreement.\n1. NATURE OF AGREEMENT. You and the Company intend this Agreement to be an Agreement concerning confidentiality and non-\ncompetition/non-solicitation. This Agreement does not limit in any way the right of either You or the Company to terminate the employment\nrelationship at any time. This Agreement contains obligations that survive termination of the employment relationship between You and the\nCompany. You agree that neither the provisions set forth in this Agreement nor any other written or oral communications between the Company and\nYou about the subject matter of this Agreement as of the date of this Agreement has created or is intended to create a contract of employment or a\npromise to provide any benefits. If You and the Company enter into or have entered into an Employment Agreement, this Agreement is to be read\nand applied consistently with that Agreement.\n2. DEFINITIONS . As used in this Agreement, the following terms shall have the following meanings:\n2.1\n“Business Partner” means each and every person and/or entity who or that, at any time during the two (2) years prior to termination of\nYour employment: (i) was either a customer, lender, supplier or subcontractor of or to the Company; (ii) was in contact with You or in\ncontact with any other employee, owner, or agent of the Company, of which contact You either were involved or were or should have\nbeen aware, concerning receiving or providing any product or service from the Company; or (iii) was solicited by the Company, or in\nconsideration or planning to be solicited by the Company, in an effort in which You were involved or of which You were or should have\nbeen aware.\n2.2\n“Conflicting Services” means any service or process of any person or production homebuilding organization, other than the Company,\nsettling in excess of 250 units annually, which directly competes with the Company in the business of designing, constructing and selling\nfor-sale single-family homes, townhomes and condominiums within the Washington, D.C. metropolitan area or in any other geographic\narea where the Company is conducting operations or has demonstrable plans to commence operations within six (6) months during Your\nemployment by the Company or about which You acquire Confidential Information during Your employment by the Company.\n2.3\n“Confidential Information” means knowledge or information not generally known to the public or in the home construction industry\n(including information conceived, discovered or developed by You), that You learn of, possess, or to which You have access through\nYour employment by the Company, related to the Company or its Business Partners, including but not limited to the information\nlisted on Schedule B to this Agreement. Confidential Information shall not include information that is or becomes publicly known\nthrough no breach of this Agreement or other act or omission of the Employee. The phrase “publicly known” shall mean readily\naccessible to the public in a written publication, and shall not include information that is only available by a substantial searching of the\npublished literature, and information the substance of which must be pieced together from a number of different publications and\nsources. The burden of proving that information or skills and experience are not Confidential Information shall be on the party asserting\nsuch exclusion.\n3. RETURN OF COMPANY PROPERTY. You agree that at any time requested by the Company and/or at termination of Your employment with\nthe Company for any reason, You will promptly deliver to the Company all property and materials in any form belonging to or relating to the\nCompany, its business and the business of any Business Partner, including but not limited to, the property listed on Schedule A to this Agreement.\nYou agree not to download or keep copies of company property in any hard or soft format. You agree that You have no ownership or interest in any\nCompany property.\n4. RESTRICTIONS.\n4.1. You agree that while You are employed by the Company, You will not solicit or provide Conflicting Services except on behalf of or at\nthe direction of the Company.\n4.2 At any time during and after Your employment with the Company You agree:\n4.2.1 You will not disclose Confidential Information to any person or entity without first obtaining the Company’s consent, and will\ntake all reasonable precautions to prevent inadvertent disclosure of such Confidential Information. You agree to make every\neffort to ensure that persons working in any capacity for the Company, including without limitation employees, officers, directors,\nvendors, sub-contractors, attorneys, and agents, subsidiary or parent entities (and the employees, officers, directors, vendors,\ncontractors, attorneys, and agents, thereof) are permitted access to Confidential Information on a strictly “need to know” basis.\nThis prohibition against Your disclosure of Confidential Information includes, but is not limited to, disclosing the fact that any\nsimilarity exists between Confidential Information and information independently developed by another person or entity. You\nunderstand that the existence of such a similarity does not excuse You from honoring Your obligations under this Agreement.\n4.2.2 You will not use any Confidential Information for Your personal benefit or for the benefit of any person or entity other than the\nCompany. You will not use, copy or transfer Confidential Information other than as necessary in carrying out Your duties on\nbehalf of the Company, without first\n2\nobtaining the Company’s written consent, and will take all reasonable precautions to prevent inadvertent use, copying or transfer\nof Confidential Information. This prohibition against Your use, copying, or transfer of Confidential Information includes, but is\nnot limited to, selling, licensing or otherwise exploiting, directly or indirectly, any products or services (including software in any\nform) which embody or are derived from Confidential Information, or exercising judgment in performing analysis based upon\nknowledge of Confidential Information. Without in any way limiting the generality of this subsection, You agree not to directly\nor indirectly circumvent or compete with the Company with regard to any Confidential Information.\n4.2.3 You will not make any written use of or reference to the Company’s name or trademarks (or any name under which the Company\ndoes business) for any marketing, public relations, advertising, display or other business purpose unrelated to the express business\npurposes and interests of the Company or make any use of the Company’s facilities for any activity unrelated to the express\nbusiness purposes and interests of the Company, without the prior written consent of the Company, which consent may be\nwithheld or granted in the Company’s sole and absolute discretion.\n4.2.4 In the event that You receive a subpoena or order of a court, or other body having jurisdiction over a matter, in which You are\ncompelled to produce any information relevant to the Company, whether confidential or not, You will immediately provide the\nCompany with written notice of this subpoena or order so that the Company may timely move to quash if appropriate.\n4.2.5 . If a court decides that Section 4.2 or any of its restrictions is unenforceable for lack of reasonable temporal limitation and the\nAgreement or restriction(s) cannot otherwise be enforced, You and the Company agree that twelve (12) months shall be the\ntemporal limitation relevant to the contested restriction; provided, however, that this Section 4.2 .5 shall not apply to trade secrets\nprotected without temporal limitation under applicable law.\n4.3 For the six (6) months immediately following the termination of Your employment with the Company for any reason, provided however,\nupon one year of continuous employment with the Employer, the six month limitation period set forth above shall automatically adjust to\na twelve (12) month period without further action of the Executive or Employer, You agree:\n4.3.1 . You will not solicit or provide Conflicting Services except on behalf of or at the direction of the Company.\n4.3.2 . You will not solicit, perform or offer to perform any Conflicting Services for a Business Partner.\n3\n4.3.3 . You will not request, induce, or attempt to induce any Business Partner to terminate its relationship with the Company;\n4.3.4 You will not attempt to hire, employ or associate in business with any person employed by the Company or who has left the\nemployment of the Company within the preceding six (6) months and You will not discuss any potential employment or business\nassociation with such person, even if You did not initiate the discussion or seek out the contact.\n5. REASONABLENESS OF RESTRICTIONS AND SEVERABILITY.\n5.1. You represent and agree that You have read this entire Agreement, and understand it. You agree that this Agreement does not prevent\nYou from earning a living or pursuing Your career. You agree that the restrictions contained in this Agreement are reasonable, proper,\nand necessitated by the Company’s legitimate business interests. You agree that the restrictions placed on You under this Agreement are\nreasonable given the nature of the compensation (including any grant of equity) that you have received and may continue to receive from\nthe Company. You represent and agree that You are entering into this Agreement freely and with knowledge of its content and with the\nintent to be bound by the Agreement and the restrictions contained in it.\n5.2. In the event that a court finds this Agreement, or any of its restrictions, to be ambiguous, unenforceable, or invalid, You and the\nCompany agree that the court shall read the Agreement as a whole and interpret the restriction(s) at issue to be enforceable and valid to\nthe maximum extent allowed by law.\n5.3. If the Court declines to enforce this Agreement in the manner provided in subparagraph 5.2, You and the Company agree that this\nAgreement will be automatically modified to provide the Company with the maximum protection of its business interests allowed by law\nand You agree to be bound by this Agreement as modified.\n5.4. You and the Company agree that the geographic market for the Company’s products and services is the Washington, D.C. and Raleigh,\nN.C. metropolitan areas, so that this Agreement applies to Your activities throughout those geographic areas. If, however, after applying\nthe provisions of subparagraphs 5.2 and 5.3, a court still decides that this Agreement or any of its restrictions is unenforceable for lack of\nreasonable geographic limitation and the Agreement or restriction(s) cannot otherwise be enforced You and the Company agree that the\nfifty (50) miles radius from any office at which You worked for the Company on either a regular or occasional basis during the two years\nimmediately preceding termination of Your employment with the Company shall be the geographic limitation relevant to the contested\nrestriction.\n4\n5.5 If any provision of this Agreement is declared to be ambiguous, unenforceable or invalid, the remainder of this Agreement shall remain\nin full force and effect, and the Agreement shall be read as if the ambiguous, unenforceable or invalid provision was not contained in the\nAgreement.\n6. INJUNCTIVE RELIEF AND REMEDIES.\n6.1. You acknowledge that it may be impossible to assess the damages caused by Your violation of this Agreement, or any of its terms. You\nagree that any threatened or actual violation or breach of this Agreement, or any of its terms, will constitute immediate and irreparable\ninjury to the Company.\n6.2. You agree that in addition to any and all other damages and remedies available to the Company if You breach this Agreement, the\nCompany shall be entitled to temporary injunctive relief, without being required to post a bond, and permanent injunctive relief, without\nthe necessity of proving actual damage, to prevent You from violating or breaching this Agreement or any of its terms.\n6.3. In the event that the Company enforces this Agreement through a court order, You agree that the restrictions contained in Section 4.3 of\nthis Agreement shall remain in effect for a period of twelve (12) months from the effective date of the Order enforcing the Agreement.\n6.4. You agree that if the Company is successful in whole or part in any legal or equitable action against You under this Agreement, the\nCompany shall be entitled to payment of all costs, including reasonable attorneys’ fees, from You.\n7. PUBLICATION OF THIS AGREEMENT TO SUBSEQUENT EMPLOYERS OR BUSINESS ASSOCIATES OF EMPLOYEE.\n7.1. If You are offered employment or the opportunity to enter into any business venture (as owner, partner, consultant or other capacity) with\na person or entity which provides or is planning to provide Conflicting Services while the restrictions described in paragraph 4.3 of this\nAgreement are in effect, You agree to inform Your potential employer, partner, co-owner and/or others involved in managing the\nbusiness which You have an opportunity to join of Your obligations under this Agreement and also agree to provide such person or\npersons with a copy of this Agreement.\n7.2. You also authorize the Company to provide copies of this Agreement to any of the persons or entities described in subparagraph 7.1 and\nto make such persons aware of Your obligations under this Agreement.\n8. MISCELLANEOUS .\n8.1. This Agreement and the restrictions and obligations in it survive the employment relationship and are binding regardless of the reason\nfor termination of employment.\n5\n8.2. The Agreement is for the benefit of You and of the Company, its successor, assigns, parent corporations, subsidiaries, and/or purchasers.\n8.3. This Agreement is governed by the laws of the Commonwealth of Virginia without regard to the conflicts of laws or principles thereof.\nWith respect to any litigation based on, arising out of, or in connection with this Agreement, You hereby expressly submit to the personal\njurisdiction of the Fairfax County Circuit Court for the Commonwealth of Virginia and of the United States District Court for the Eastern\nDistrict of Virginia. You hereby expressly waive, to the fullest extent permitted by law, any objection that You may now or hereafter have\nto the laying of venue of any such litigation brought in any such court referred to above, including without limitation any claim that any\nsuch litigation has been brought in an inconvenient forum.\n8.4. No waiver by the Company of any breach of any of the provisions of this Agreement is a waiver of any preceding or succeeding breach\nof the same or any other provisions of this Agreement. No waiver shall be effective unless in writing and then only to the extent\nexpressly set forth in writing.\n8.5. Except as expressly provided otherwise in this Agreement, nothing in this Agreement grants a license or permission to use any\nintellectual property of Company, whether owned, pending, or currently under development.\n8.6. This Agreement may be amended by a writing signed by both parties; provided, however, that Schedules A and B to this Agreement may\nbe amended by the Company at any time and the amended schedules attached to this Agreement and made a part of it.\n8.7 You agree that on the subjects covered in this Agreement, it is the entire Agreement between You and the Company, superseding any\nprevious oral or written communications, representations, understanding, or agreements with the Company or with any representative of\nthe Company. By signing this Agreement You represent that You have read and understand this Agreement, You have had an\nopportunity to consult legal counsel concerning this Agreement and that You sign it voluntarily.\nComstock Homebuilding Companies, Inc.\nEmployee\nBy:\nChristopher Clemente\nJoseph M. Squeri\nChief Executive Officer\n6\nSCHEDULE A\nCOMPANY PROPERTY\nFor purposes of the Confidentiality and Non-Competition Agreement between Comstock Homebuilding Companies, Inc. and Joseph Squeri\ndated August , 2010, Company Property shall include but not be limited to:\n1. All lists of and information pertaining to any Business Partner.\n2. All Confidential Information of the Company.\n3. All notes, files, correspondence (including copies of e-mail or voice mail messages) and memoranda prepared or received in the course\nof employment.\n4. All manuals reports, records, notebooks, plans, photographs, specifications, technical data and drawings prepared or received in the\ncourse of employment.\n5. All computers, printers, computer hardware and software, computer programs, program listings, diskettes, CD’s, DVD’s, audio and\nvideotapes; downloads and source/object codes.\n7\nSCHEDULE B\nCONFIDENTIAL INFORMATION\nFor purposes of the Confidentiality and Non-Competition Agreement between Comstock Homebuilding Companies, Inc. and Joseph Squeri\ndated August , 2010, Confidential Information shall include but not be limited to the following information where it is not generally known to the\npublic or in the home construction industry (including information conceived, discovered or developed by Employee):\n1. Information relating to the Company’s proprietary rights prior to any public disclosure thereof, including but not limited to the nature of\nthe proprietary rights, discoveries, inventions, works of authorship, techniques, improvements and ideas (whether patentable or not),\nhardware, software, computer programs, source or object codes, documentation, processes, design, concept, development, methods,\ncodes, formulas, production data, technical and engineering data, test data and test results, knowledge of codes for data fields,\ndocumentation manuals (including data dictionaries), the status and details of research and development of products and services, and\ninformation regarding acquiring, protecting, enforcing and licensing proprietary rights (including patents, copyrights and trade secrets).\n2. Work product resulting from or related to work or projects performed or to be performed for the Company or for clients of the Company,\nincluding but not limited to the interim and final lines of inquiry, hypotheses, research and conclusions related thereto and the methods,\nprocesses, procedures, analyses, techniques and audits used in connection therewith.\n3. Marketing and development plans, marketing strategies, product descriptions and program descriptions, price and cost data, price and fee\namounts, pricing and billing policies, quoting procedures, marketing techniques and methods of obtaining business, forecasts and\nforecast assumptions and volumes, and future plans and potential strategies of the Company which have been or are being discussed.\n4. Computer software of any type or form in any stage of actual or anticipated research and development, including but not limited to\nprograms and program modules, routines and subroutines, processes, algorithms, design concepts, design specifications (design notes,\nannotations, documentation, flowcharts, coding sheets, and the like), source code, object code and load modules, programming, program\npatches, data models and systems plans, design, application and documentation.\n5. Internal Company personnel information, employee lists, compensation data, non-public financial information, financial projections and\nbusiness plans and strategy, operational plans, financing and capital-raising plans, activities, and agreements,\n8\nvendor names and other vendor information (including vendor characteristics, services and agreements), purchasing and internal cost\ninformation, internal services and operational manuals, and the manner and methods of conducting the Company’s business.\n6. Non-public information pertaining to any Business Partner and its needs or desires with respect to the products and services offered by\nthe Company, including, but not limited to, names of Business Partner and their representatives, proposals, bids, contracts and their\ncontents and parties, data provided to the Company by Business Partner, the type, quantity and specifications of products and services\npurchased, leased, licensed or provided or received by Business Partner and other non-public information.\n7. Any information that a competitor of the Company could use to the competitive disadvantage of the Company.\n9	EX-10.94 5 dex1094.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.94\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Agreement is between Joseph M. Squeri (hereafter “You”) and Comstock Homebuilding Companies, Inc., its affiliates, successors,\nassigns, parents and subsidiaries (hereafter “the Company”), effective this __ day of August, 2010. You are entering into this Agreement based on\nconsideration to You from the Company, including the grant of equity in the Company to You, Your employment and continued employment with\nthe Company, and such other benefits that You acknowledge to be sufficient consideration for this Agreement.\n1. NATURE OF AGREEMENT. You and the Company intend this Agreement to be an Agreement concerning confidentiality and non-\ncompetition/non-solicitation. This Agreement does not limit in any way the right of either You or the Company to terminate the employment\nrelationship at any time. This Agreement contains obligations that survive termination of the employment relationship between You and the\nCompany. You agree that neither the provisions set forth in this Agreement nor any other written or oral communications between the Company and\nYou about the subject matter of this Agreement as of the date of this Agreement has created or is intended to create a contract of employment or a\npromise to provide any benefits. If You and the Company enter into or have entered into an Employment Agreement, this Agreement is to be read\nand applied consistently with that Agreement.\n2. DEFINITIONS. As used in this Agreement, the following terms shall have the following meanings:\n2.1 “Business Partner” means each and every person and/or entity who or that, at any time during the two (2) years prior to termination of\nYour employment: (i) was either a customer, lender, supplier or subcontractor of or to the Company; (ii) was in contact with You or in\ncontact with any other employee, owner, or agent of the Company, of which contact You either were involved or were or should have\nbeen aware, concerning receiving or providing any product or service from the Company; or (iii) was solicited by the Company, or in\nconsideration or planning to be solicited by the Company, in an effort in which You were involved or of which You were or should have\nbeen aware.\n2.2 “Conflicting Services” means any service or process of any person or production homebuilding organization, other than the Company,\nsettling in excess of 250 units annually, which directly competes with the Company in the business of designing, constructing and selling\nfor-sale single-family homes, townhomes and condominiums within the Washington, D.C. metropolitan area or in any other geographic\narea where the Company is conducting operations or has demonstrable plans to commence operations within six (6) months during Your\nemployment by the Company or about which You acquire Confidential Information during Your employment by the Company.\n2.3 “Confidential Information” means knowledge or information not generally known to the public or in the home construction industry\n(including information conceived, discovered or developed by You), that You learn of, possess, or to which You have access through\nYour employment by the Company, related to the Company or its Business Partners, including but not limited to the information\nlisted on Schedule B to this Agreement. Confidential Information shall not include information that is or becomes publicly known\nthrough no breach of this Agreement or other act or omission of the Employee. The phrase “publicly known” shall mean readily\naccessible to the public in a written publication, and shall not include information that is only available by a substantial searching of the\npublished literature, and information the substance of which must be pieced together from a number of different publications and\nsources. The burden of proving that information or skills and experience are not Confidential Information shall be on the party asserting\nsuch exclusion.\n3. RETURN OF COMPANY PROPERTY. You agree that at any time requested by the Company and/or at termination of Your employment with\nthe Company for any reason, You will promptly deliver to the Company all property and materials in any form belonging to or relating to the\nCompany, its business and the business of any Business Partner, including but not limited to, the property listed on Schedule A to this Agreement.\nYou agree not to download or keep copies of company property in any hard or soft format. You agree that You have no ownership or interest in any\nCompany property.\n4. RESTRICTIONS.\n4.1. You agree that while You are employed by the Company, You will not solicit or provide Conflicting Services except on behalf of or at\nthe direction of the Company.\n4.2 Atany time during and after Your employment with the Company You agree:\n4.2.1 You will not disclose Confidential Information to any person or entity without first obtaining the Company’s consent, and will\ntake all reasonable precautions to prevent inadvertent disclosure of such Confidential Information. You agree to make every\neffort to ensure that persons working in any capacity for the Company, including without limitation employees, officers, directors,\nvendors, sub-contractors, attorneys, and agents, subsidiary or parent entities (and the employees, officers, directors, vendors,\ncontractors, attorneys, and agents, thereof) are permitted access to Confidential Information on a strictly “need to know” basis.\nThis prohibition against Your disclosure of Confidential Information includes, but is not limited to, disclosing the fact that any\nsimilarity exists between Confidential Information and information independently developed by another person or entity. You\nunderstand that the existence of such a similarity does not excuse You from honoring Your obligations under this Agreement.\n4.2.2 You will not use any Confidential Information for Your personal benefit or for the benefit of any person or entity other than the\nCompany. You will not use, copy or transfer Confidential Information other than as necessary in carrying out Your duties on\nbehalf of the Company, without first\n4.3\n4.2.3\n4.2.4\n4.2.5. obtaining the Company’s written consent, and will take all reasonable precautions to prevent inadvertent use, copying or transfer\nof Confidential Information. This prohibition against Your use, copying, or transfer of Confidential Information includes, but is\nnot limited to, selling, licensing or otherwise exploiting, directly or indirectly, any products or services (including software in any\nform) which embody or are derived from Confidential Information, or exercising judgment in performing analysis based upon\nknowledge of Confidential Information. Without in any way limiting the generality of this subsection, You agree not to directly\nor indirectly circumvent or compete with the Company with regard to any Confidential Information.\nYou will not make any written use of or reference to the Company’s name or trademarks (or any name under which the Company\ndoes business) for any marketing, public relations, advertising, display or other business purpose unrelated to the express business\npurposes and interests of the Company or make any use of the Company’s facilities for any activity unrelated to the express\nbusiness purposes and interests of the Company, without the prior written consent of the Company, which consent may be\nwithheld or granted in the Company’s sole and absolute discretion.\nIn the event that You receive a subpoena or order of a court, or other body having jurisdiction over a matter, in which You are\ncompelled to produce any information relevant to the Company, whether confidential or not, You will immediately provide the\nCompany with written notice of this subpoena or order so that the Company may timely move to quash if appropriate.\nIf a court decides that Section 4.2 or any of its restrictions is unenforceable for lack of reasonable temporal limitation and the\nAgreement or restriction(s) cannot otherwise be enforced, You and the Company agree that twelve (12) months shall be the\ntemporal limitation relevant to the contested restriction; provided, however, that this Section 4.2.5 shall not apply to trade secrets\nprotected without temporal limitation under applicable law.\nFor the six (6) months immediately following the termination of Your employment with the Company for any reason, provided however, upon one year of continuous employment with the Employer, the six month limitation period set forth above shall automatically adjust to a twelve (12) month period without further action of the Executive or Employer, You agree: 4.3.1. 4.3.2. You will not solicit or provide Conflicting Services except on behalf of or at the direction of the Company.\nYou will not solicit, perform or offer to perform any Conflicting Services for a Business Partner.\n3\n4.3.3. You will not request, induce, or attempt to induce any Business Partner to terminate its relationship with the Company;\n4.3.4 You will not attempt to hire, employ or associate in business with any person employed by the Company or who has left the\nemployment of the Company within the preceding six (6) months and You will not discuss any potential employment or business\nassociation with such person, even if You did not initiate the discussion or seek out the contact.\n5. REASONABLENESS OF RESTRICTIONS AND SEVERABILITY. 5.1.\n5.2\n5.3.\n5.4.\nYou represent and agree that You have read this entire Agreement, and understand it. You agree that this Agreement does not prevent\nYou from earning a living or pursuing Your career. You agree that the restrictions contained in this Agreement are reasonable, proper,\nand necessitated by the Company’s legitimate business interests. You agree that the restrictions placed on You under this Agreement are\nreasonable given the nature of the compensation (including any grant of equity) that you have received and may continue to receive from\nthe Company. You represent and agree that You are entering into this Agreement freely and with knowledge of its content and with the\nintent to be bound by the Agreement and the restrictions contained in it.\nIn the event that a court finds this Agreement, or any of its restrictions, to be ambiguous, unenforceable, or invalid, You and the\nCompany agree that the court shall read the Agreement as a whole and interpret the restriction(s) at issue to be enforceable and valid to\nthe maximum extent allowed by law.\nIf the Court declines to enforce this Agreement in the manner provided in subparagraph 5.2, You and the Company agree that this\nAgreement will be automatically modified to provide the Company with the maximum protection of its business interests allowed by law\nand You agree to be bound by this Agreement as modified.\nYou and the Company agree that the geographic market for the Company’s products and services is the Washington, D.C. and Raleigh,\nN.C. metropolitan areas, so that this Agreement applies to Your activities throughout those geographic areas. If, however, after applying\nthe provisions of subparagraphs 5.2 and 5.3, a court still decides that this Agreement or any of its restrictions is unenforceable for lack of\nreasonable geographic limitation and the Agreement or restriction(s) cannot otherwise be enforced You and the Company agree that the\nfifty (50) miles radius from any office at which You worked for the Company on either a regular or occasional basis during the two years\nimmediately preceding termination of Your employment with the Company shall be the geographic limitation relevant to the contested\nrestriction.\n5.5 If any provision of this Agreement is declared to be ambiguous, unenforceable or invalid, the remainder of this Agreement shall remain\nin full force and effect, and the Agreement shall be read as if the ambiguous, unenforceable or invalid provision was not contained in the\nAgreement.\n6. INJUNCTIVE RELIEF AND REMEDIES.\n6.1. You acknowledge that it may be impossible to assess the damages caused by Your violation of this Agreement, or any of its terms. You\nagree that any threatened or actual violation or breach of this Agreement, or any of its terms, will constitute immediate and irreparable\ninjury to the Company.\n6.2. You agree that in addition to any and all other damages and remedies available to the Company if You breach this Agreement, the\nCompany shall be entitled to temporary injunctive relief, without being required to post a bond, and permanent injunctive relief, without\nthe necessity of proving actual damage, to prevent You from violating or breaching this Agreement or any of its terms.\n6.3. Inthe event that the Company enforces this Agreement through a court order, You agree that the restrictions contained in Section 4.3 of\nthis Agreement shall remain in effect for a period of twelve (12) months from the effective date of the Order enforcing the Agreement.\n6.4. You agree that if the Company is successful in whole or part in any legal or equitable action against You under this Agreement, the\nCompany shall be entitled to payment of all costs, including reasonable attorneys’ fees, from You.\n7. PUBLICATION OF THIS AGREEMENT TO SUBSEQUENT EMPLOYERS OR BUSINESS ASSOCIATES OF EMPLOYEE.\n7.1. 1If You are offered employment or the opportunity to enter into any business venture (as owner, partner, consultant or other capacity) with\na person or entity which provides or is planning to provide Conflicting Services while the restrictions described in paragraph 4.3 of this\nAgreement are in effect, You agree to inform Your potential employer, partner, co-owner and/or others involved in managing the\nbusiness which You have an opportunity to join of Your obligations under this Agreement and also agree to provide such person or\npersons with a copy of this Agreement.\n7.2. You also authorize the Company to provide copies of this Agreement to any of the persons or entities described in subparagraph 7.1 and\nto make such persons aware of Your obligations under this Agreement.\n8. MISCELLANEOUS.\n8.1. This Agreement and the restrictions and obligations in it survive the employment relationship and are binding regardless of the reason\nfor termination of employment.\n8.2. 8.3. 8.4. 8.5. 8.6. 8.7\nThe Agreement is for the benefit of You and of the Company, its successor, assigns, parent corporations, subsidiaries, and/or purchasers.\nThis Agreement is governed by the laws of the Commonwealth of Virginia without regard to the conflicts of laws or principles thereof.\nWith respect to any litigation based on, arising out of, or in connection with this Agreement, You hereby expressly submit to the personal\njurisdiction of the Fairfax County Circuit Court for the Commonwealth of Virginia and of the United States District Court for the Eastern\nDistrict of Virginia. You hereby expressly waive, to the fullest extent permitted by law, any objection that You may now or hereafter have\nto the laying of venue of any such litigation brought in any such court referred to above, including without limitation any claim that any\nsuch litigation has been brought in an inconvenient forum.\nNo waiver by the Company of any breach of any of the provisions of this Agreement is a waiver of any preceding or succeeding breach\nof the same or any other provisions of this Agreement. No waiver shall be effective unless in writing and then only to the extent\nexpressly set forth in writing.\nExcept as expressly provided otherwise in this Agreement, nothing in this Agreement grants a license or permission to use any\nintellectual property of Company, whether owned, pending, or currently under development.\nThis Agreement may be amended by a writing signed by both parties; provided, however, that Schedules A and B to this Agreement may\nbe amended by the Company at any time and the amended schedules attached to this Agreement and made a part of it.\nYou agree that on the subjects covered in this Agreement, it is the entire Agreement between You and the Company, superseding any\nprevious oral or written communications, representations, understanding, or agreements with the Company or with any representative of\nthe Company. By signing this Agreement You represent that You have read and understand this Agreement, You have had an\nopportunity to consult legal counsel concerning this Agreement and that You sign it voluntarily.\nComstock Homebuilding Companies, Inc. Employee By:\nChristopher Clemente Joseph M. Squeri Chief Executive Officer\fSCHEDULE A\nCOMPANY PROPERTY\nFor purposes of the Confidentiality and Non-Competition Agreement between Comstock Homebuilding Companies, Inc. and Joseph Squeri\ndated August __, 2010, Company Property shall include but not be limited to:\n1. Alllists of and information pertaining to any Business Partner.\n2. All Confidential Information of the Company.\n3. Allnotes, files, correspondence (including copies of e-mail or voice mail messages) and memoranda prepared or received in the course\nof employment.\n4.  All manuals reports, records, notebooks, plans, photographs, specifications, technical data and drawings prepared or received in the\ncourse of employment.\n5. All computers, printers, computer hardware and software, computer programs, program listings, diskettes, CD’s, DVD’s, audio and\nvideotapes; downloads and source/object codes.\nSCHEDULE B\nCONFIDENTIAL INFORMATION\nFor purposes of the Confidentiality and Non-Competition Agreement between Comstock Homebuilding Companies, Inc. and Joseph Squeri dated August __, 2010, Confidential Information shall include but not be limited to the following information where it is not generally known to the public or in the home construction industry (including information conceived, discovered or developed by Employee): 1. Information relating to the Company’s proprietary rights prior to any public disclosure thereof, including but not limited to the nature of\nthe proprietary rights, discoveries, inventions, works of authorship, techniques, improvements and ideas (whether patentable or not),\nhardware, software, computer programs, source or object codes, documentation, processes, design, concept, development, methods,\ncodes, formulas, production data, technical and engineering data, test data and test results, knowledge of codes for data fields,\ndocumentation manuals (including data dictionaries), the status and details of research and development of products and services, and\ninformation regarding acquiring, protecting, enforcing and licensing proprietary rights (including patents, copyrights and trade secrets).\nWork product resulting from or related to work or projects performed or to be performed for the Company or for clients of the Company,\nincluding but not limited to the interim and final lines of inquiry, hypotheses, research and conclusions related thereto and the methods,\nprocesses, procedures, analyses, techniques and audits used in connection therewith.\nMarketing and development plans, marketing strategies, product descriptions and program descriptions, price and cost data, price and fee\namounts, pricing and billing policies, quoting procedures, marketing techniques and methods of obtaining business, forecasts and\nforecast assumptions and volumes, and future plans and potential strategies of the Company which have been or are being discussed.\nComputer software of any type or form in any stage of actual or anticipated research and development, including but not limited to\nprograms and program modules, routines and subroutines, processes, algorithms, design concepts, design specifications (design notes,\nannotations, documentation, flowcharts, coding sheets, and the like), source code, object code and load modules, programming, program\npatches, data models and systems plans, design, application and documentation.\nInternal Company personnel information, employee lists, compensation data, non-public financial information, financial projections and\nbusiness plans and strategy, operational plans, financing and capital-raising plans, activities, and agreements,\n8\nvendor names and other vendor information (including vendor characteristics, services and agreements), purchasing and internal cost\ninformation, internal services and operational manuals, and the manner and methods of conducting the Company’s business.\nNon-public information pertaining to any Business Partner and its needs or desires with respect to the products and services offered by\nthe Company, including, but not limited to, names of Business Partner and their representatives, proposals, bids, contracts and their\ncontents and parties, data provided to the Company by Business Partner, the type, quantity and specifications of products and services\npurchased, leased, licensed or provided or received by Business Partner and other non-public information.\nAny information that a competitor of the Company could use to the competitive disadvantage of the Company.\n9	EX-10.94 5 lex1094.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.94\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Agreement is between Joseph M. Squeri (hereafter "You") and Comstock Homebuilding Companies, Inc., its affiliates, successors,\nassigns, parents and subsidiaries (hereafter "the Company"), effective this day of August, 2010. You are entering into this Agreement based\non\nconsideration to You from the Company, including the grant of equity in the Company to You, Your employment and continued employment with\nthe Company, and such other benefits that You acknowledge to be sufficient consideration for this Agreement.\n1.\nNATURE OF AGREEMENT. You and the Company intend this Agreement to be an Agreement concerning confidentiality and non-\ncompetition/non-solicitation. This Agreement does not limit in any way the right of either You or the Company to terminate the employment\nrelationship at any time. This Agreement contains obligations that survive termination of the employment relationship between You and the\nCompany. You agree that neither the provisions set forth in this Agreement nor any other written or oral communications between the Company and\nYou about the subject matter of this Agreement as of the date of this Agreement has created or is intended to create a contract of employment or\na\npromise to provide any benefits. If You and the Company enter into or have entered into an Employment Agreement, this Agreement is to be read\nand applied consistently with that Agreement.\n2. DEFINITIONS. As used in this Agreement, the following terms shall have the following meanings:\n2.1\n"Business Partner" means each and every person and/or entity who or that, at any time during the two (2) years prior to termination of\nYour employment: (i) was either a customer, lender, supplier or subcontractor of or to the Company; (ii) was in contact with You or in\ncontact with any other employee, owner, or agent of the Company, of which contact You either were involved or were or should have\nbeen aware, concerning receiving or providing any product or service from the Company; or (iii) was solicited by the Company, or\nin\nconsideration or planning to be solicited by the Company, in an effort in which You were involved or of which You were or should have\nbeen aware.\n2.2 "Conflicting Services" means any service or process of any person or production homebuilding organization, other than the Company,\nsettling in excess of 250 units annually, which directly competes with the Company in the business of designing, constructing and selling\nfor-sale single-family homes, townhomes and condominiums within the Washington, D.C. metropolitan area or in any other geographic\narea where the Company is conducting operations or has demonstrable plans to commence operations within six (6) months during Your\nemployment by the Company or about which You acquire Confidential Information during Your employment by the Company.\n2.3 "Confidential Information" means knowledge or information not generally known to the public or in the home construction industry\n(including information conceived, discovered or developed by You), that You learn of, possess, or to which You have access through\nYour employment by the Company, related to the Company or its Business Partners, including but not limited to the information\nlisted on Schedule B to this Agreement. Confidential Information shall not include information that is or becomes publicly known\nthrough no breach of this Agreement or other act or omission of the Employee. The phrase "publicly known" shall mean readily\naccessible to the public in a written publication, and shall not include information that is only available by a substantial searching of the\npublished literature, and information the substance of which must be pieced together from a number of different publications and\nsources. The burden of proving that information or skills and experience are not Confidential Information shall be on the party asserting\nsuch exclusion.\n3.\nRETURN OF COMPANY PROPERTY. You agree that at any time requested by the Company and/or at termination of Your employment with\nthe Company for any reason, You will promptly deliver to the Company all property and materials in any form belonging to or relating to the\nCompany, its business and the business of any Business Partner, including but not limited to, the property listed on Schedule A to this Agreement.\nYou agree not to download or keep copies of company property in any hard or soft format. You agree that You have no ownership or interest in any\nCompany property.\n4. RESTRICTIONS.\n4.1. You agree that while You are employed by the Company, You will not solicit or provide Conflicting Services except on behalf of or at\nthe direction of the Company.\n4.2 At any time during and after Your employment with the Company You agree:\n4.2.1 You will not disclose Confidential Information to any person or entity without first obtaining the Company's consent, and will\ntake all reasonable precautions to prevent inadvertent disclosure of such Confidential Information. You agree to make every\neffort to ensure that persons working in any capacity for the Company, including without limitation employees, officers, directors,\nvendors, sub-contractors, attorneys, and agents, subsidiary or parent entities (and the employees, officers, directors, vendors,\ncontractors, attorneys, and agents, thereof) are permitted access to Confidential Information on a strictly "need to know" basis.\nThis prohibition against Your disclosure of Confidential Information includes, but is not limited to, disclosing the fact that any\nsimilarity exists between Confidential Information and information independently developed by another person or entity. You\nunderstand that the existence of such a similarity does not excuse You from honoring Your obligations under this Agreement.\n4.2.2 You will not use any Confidential Information for Your personal benefit or for the benefit of any person or entity other than the\nCompany. You will not use, copy or transfer Confidential Information other than as necessary in carrying out Your duties on\nbehalf of the Company, without first\n2\nobtaining the Company's written consent, and will take all reasonable precautions to prevent inadvertent use, copying or transfer\nof Confidential Information. This prohibition against Your use, copying, or transfer of Confidential Information includes, but is\nnot limited to, selling, licensing or otherwise exploiting, directly or indirectly, any products or services (including software in any\nform) which embody or are derived from Confidential Information, or exercising judgment in performing analysis based upon\nknowledge of Confidential Information. Without in any way limiting the generality of this subsection, You agree not to directly\nor indirectly circumvent or compete with the Company with regard to any Confidential Information.\n4.2.3 You will not make any written use of or reference to the Company's name or trademarks (or any name under which the Company\ndoes business) for any marketing, public relations, advertising, display or other business purpose unrelated to the express business\npurposes and interests of the Company or make any use of the Company's facilities for any activity unrelated to the express\nbusiness purposes and interests of the Company, without the prior written consent of the Company, which consent may be\nwithheld or granted in the Company's sole and absolute discretion.\n4.2.4 In the event that You receive a subpoena or order of a court, or other body having jurisdiction over a matter, in which You are\ncompelled to produce any information relevant to the Company, whether confidential or not, You will immediately provide the\nCompany with written notice of this subpoena or order SO that the Company may timely move to quash if appropriate.\n4.2.5. If a court decides that Section 4.2 or any of its restrictions is unenforceable for lack of reasonable temporal limitation and the\nAgreement or restriction(s) cannot otherwise be enforced, You and the Company agree that twelve (12) months shall be the\ntemporal limitation relevant to the contested restriction; provided, however, that this Section 4.2.5 shall not apply to trade secrets\nprotected without temporal limitation under applicable law.\n4.3\nFor the six (6) months immediately following the termination of Your employment with the Company for any reason, provided however,\nupon one year of continuous employment with the Employer, the six month limitation period set forth above shall automatically adjust to\na twelve (12) month period without further action of the Executive or Employer, You agree:\n4.3.1. You will not solicit or provide Conflicting Services except on behalf of or at the direction of the Company.\n4.3.2. You will not solicit, perform or offer to perform any Conflicting Services for a Business Partner.\n3\n4.3.3. You will not request, induce, or attempt to induce any Business Partner to terminate its relationship with the Company;\n4.3.4 You will not attempt to hire, employ or associate in business with any person employed by the Company or who has left the\nemployment of the Company within the preceding six (6) months and You will not discuss any potential employment or business\nassociation with such person, even if You did not initiate the discussion or seek out the contact.\n5. REASONABLENESS OF RESTRICTIONS AND SEVERABILITY.\n5.1. You represent and agree that You have read this entire Agreement, and understand it. You agree that this Agreement does not prevent\nYou from earning a living or pursuing Your career. You agree that the restrictions contained in this Agreement are reasonable, proper,\nand necessitated by the Company's legitimate business interests. You agree that the restrictions placed on You under this Agreement are\nreasonable given the nature of the compensation (including any grant of equity) that you have received and may continue to receive from\nthe Company. You represent and agree that You are entering into this Agreement freely and with knowledge of its content and with the\nintent to be bound by the Agreement and the restrictions contained in it.\n5.2. In the event that a court finds this Agreement, or any of its restrictions, to be ambiguous, unenforceable, or invalid, You and the\nCompany agree that the court shall read the Agreement as a whole and interpret the restriction(s) at issue to be enforceable and valid to\nthe maximum extent allowed by law.\n5.3. If the Court declines to enforce this Agreement in the manner provided in subparagraph 5.2, You and the Company agree that this\nAgreement will be automatically modified to provide the Company with the maximum protection of its business interests allowed by law\nand You agree to be bound by this Agreement as modified.\n5.4. You and the Company agree that the geographic market for the Company's products and services is the Washington, D.C. and Raleigh,\nN.C. metropolitan areas, so that this Agreement applies to Your activities throughout those geographic areas. If, however, after applying\nthe provisions of subparagraphs 5.2 and 5.3, a court still decides that this Agreement or any of its restrictions is unenforceable for lack of\nreasonable geographic limitation and the Agreement or restriction(s) cannot otherwise be enforced You and the Company agree that the\nfifty (50) miles radius from any office at which You worked for the Company on either a regular or occasional basis during the two years\nimmediately preceding termination of Your employment with the Company shall be the geographic limitation relevant to the contested\nrestriction.\n4\n5.5\nIf any provision of this Agreement is declared to be ambiguous, unenforceable or invalid, the remainder of this Agreement shall remain\nin full force and effect, and the Agreement shall be read as if the ambiguous, unenforceable or invalid provision was not contained in the\nAgreement.\n6. INJUNCTIVE RELIEF AND REMEDIES.\n6.1. You acknowledge that it may be impossible to assess the damages caused by Your violation of this Agreement, or any of its terms. You\nagree that any threatened or actual violation or breach of this Agreement, or any of its terms, will constitute immediate and irreparable\ninjury to the Company.\n6.2. You agree that in addition to any and all other damages and remedies available to the Company if You breach this Agreement, the\nCompany shall be entitled to temporary injunctive relief, without being required to post a bond, and permanent injunctive relief, without\nthe necessity of proving actual damage, to prevent You from violating or breaching this Agreement or any of its terms.\n6.3. In the event that the Company enforces this Agreement through a court order, You agree that the restrictions contained in Section 4.3 of\nthis Agreement shall remain in effect for a period of twelve (12) months from the effective date of the Order enforcing the Agreement.\n6.4. You agree that if the Company is successful in whole or part in any legal or equitable action against You under this Agreement, the\nCompany shall be entitled to payment of all costs, including reasonable attorneys' fees, from You.\n7. PUBLICATION OF THIS AGREEMENT TO SUBSEQUENT EMPLOYERS OR BUSINESS ASSOCIATES OF EMPLOYEE.\n7.1. If You are offered employment or the opportunity to enter into any business venture (as owner, partner, consultant or other capacity) with\na person or entity which provides or is planning to provide Conflicting Services while the restrictions described in paragraph 4.3 of this\nAgreement are in effect, You agree to inform Your potential employer, partner, co-owner and/or others involved in managing the\nbusiness which You have an opportunity to join of Your obligations under this Agreement and also agree to provide such person or\npersons with a copy of this Agreement.\n7.2. You also authorize the Company to provide copies of this Agreement to any of the persons or entities described in subparagraph 7.1 and\nto make such persons aware of Your obligations under this Agreement.\n8. MISCELLANEOUS.\n8.1. This Agreement and the restrictions and obligations in it survive the employment relationship and are binding regardless of the reason\nfor termination of employment.\n5\n8.2.\nThe Agreement is for the benefit of You and of the Company, its successor, assigns, parent corporations, subsidiaries, and/or purchasers.\n8.3.\nThis Agreement is governed by the laws of the Commonwealth of Virginia without regard to the conflicts of laws or principles thereof.\nWith respect to any litigation based on, arising out of, or in connection with this Agreement, You hereby expressly submit to the personal\njurisdiction of the Fairfax County Circuit Court for the Commonwealth of Virginia and of the United States District Court for the Eastern\nDistrict of Virginia. You hereby expressly waive, to the fullest extent permitted by law, any objection that You may now or hereafter have\nto the laying of venue of any such litigation brought in any such court referred to above, including without limitation any claim that any\nsuch litigation has been brought in an inconvenient forum.\n8.4. No waiver by the Company of any breach of any of the provisions of this Agreement is a waiver of any preceding or succeeding breach\nof the same or any other provisions of this Agreement. No waiver shall be effective unless in writing and then only to the extent\nexpressly set forth in writing.\n8.5. Except as expressly provided otherwise in this Agreement, nothing in this Agreement grants a license or permission to use any\nintellectual property of Company, whether owned, pending or currently under development.\n8.6. This Agreement may be amended by a writing signed by both parties; provided, however, that Schedules A and B to this Agreement may\nbe amended by the Company at any time and the amended schedules attached to this Agreement and made a part of it.\n8.7 You agree that on the subjects covered in this Agreement, it is the entire Agreement between You and the Company, superseding any\nprevious oral or written communications, representations, understanding, or agreements with the Company or with any representative of\nthe Company. By signing this Agreement You represent that You have read and understand this Agreement, You have had an\nopportunity to consult legal counsel concerning this Agreement and that You sign it voluntarily.\nComstock Homebuilding Companies, Inc.\nEmployee\nBy:\nChristopher Clemente\nJoseph M. Squeri\nChief Executive Officer\n6\nSCHEDULE A\nCOMPANY PROPERTY\nFor purposes of the Confidentiality and Non-Competition Agreement between Comstock Homebuilding Companies, Inc. and Joseph Squeri\ndated August 2010, Company Property shall include but not be limited to:\n1.\nAll lists of and information pertaining to any Business Partner.\n2.\nAll Confidential Information of the Company.\n3.\nAll notes, files, correspondence (including copies of e-mail or voice mail messages) and memoranda prepared or received in the course\nof employment.\n4.\nAll manuals reports, records, notebooks, plans, photographs, specifications, technical data and drawings prepared or received in the\ncourse of employment.\n5.\nAll\ncomputers, printers, computer hardware and software, computer programs, program listings, diskettes, CD's, DVD's, audio and\nvideotapes; downloads and source/object codes.\n7\nSCHEDULE B\nCONFIDENTIAL INFORMATION\nFor purposes of the Confidentiality and Non-Competition Agreement between Comstock Homebuilding Companies, Inc. and Joseph Squeri\ndated August 2010, Confidential Information shall include but not be limited to the following information where it is not generally known to the\npublic or in the home construction industry (including information conceived, discovered or developed by Employee):\n1. Information relating to the Company's proprietary rights prior to any public disclosure thereof, including but not limited to the nature of\nthe proprietary rights, discoveries, inventions, works of authorship, techniques, improvements and ideas (whether patentable or not),\nhardware, software, computer programs, source or object codes, documentation, processes, design, concept, development, methods,\ncodes, formulas, production data, technical and engineering data, test data and test results, knowledge of codes for data fields,\ndocumentation manuals (including data dictionaries), the status and details of research and development of products and services, and\ninformation regarding acquiring, protecting, enforcing and licensing proprietary rights (including patents, copyrights and trade secrets).\n2.\nWork product resulting from or related to work or projects performed or to be performed for the Company or for clients of the Company,\nincluding but not limited to the interim and final lines of inquiry, hypotheses, research and conclusions related thereto and the methods,\nprocesses, procedures, analyses, techniques and audits used in connection therewith.\n3.\nMarketing and development plans, marketing strategies, product descriptions and program descriptions, price and cost data, price and fee\namounts, pricing and billing policies, quoting procedures, marketing techniques and methods of obtaining business, forecasts and\nforecast assumptions and volumes, and future plans and potential strategies of the Company which have been or are being discussed.\n4.\nComputer software of any type or form in any stage of actual or anticipated research and development, including but not limited to\nprograms and program modules, routines and subroutines, processes, algorithms, design concepts, design specifications (design notes,\nannotations, documentation, flowcharts, coding sheets, and the like), source code, object code and load modules, programming, program\npatches, data models and systems plans, design, application and documentation.\n5.\nInternal Company personnel information, employee lists, compensation data, non-public financial information, financial projections and\nbusiness plans and strategy, operational plans, financing and capital-raising plans, activities, and agreements,\n8\nvendor names and other vendor information (including vendor characteristics, services and agreements), purchasing and internal cost\ninformation, internal services and operational manuals, and the manner and methods of conducting the Company's business.\n6.\nNon-public information pertaining to any Business Partner and its needs or desires with respect to the products and services offered by\nthe Company, including, but not limited to, names of Business Partner and their representatives, proposals, bids, contracts and their\ncontents and parties data provided to the Company by Business Partner, the type, quantity and specifications of products and services\npurchased, leased, licensed or provided or received by Business Partner and other non-public information.\n7.\nAny information that a competitor of the Company could use to the competitive disadvantage of the Company.\n9	EX-10.94 5 dex1094.htm CONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nExhibit 10.94\nCONFIDENTIALITY AND NON-COMPETITION AGREEMENT\nThis Agreement is between Joseph M. Squeri (hereafter “You”) and Comstock Homebuilding Companies, Inc., its affiliates, successors,\nassigns, parents and subsidiaries (hereafter “the Company”), effective this day of August, 2010. You are entering into this Agreement based on\nconsideration to You from the Company, including the grant of equity in the Company to You, Your employment and continued employment with\nthe Company, and such other benefits that You acknowledge to be sufficient consideration for this Agreement.\n1. NATURE OF AGREEMENT. You and the Company intend this Agreement to be an Agreement concerning confidentiality and non-\ncompetition/non-solicitation. This Agreement does not limit in any way the right of either You or the Company to terminate the employment\nrelationship at any time. This Agreement contains obligations that survive termination of the employment relationship between You and the\nCompany. You agree that neither the provisions set forth in this Agreement nor any other written or oral communications between the Company and\nYou about the subject matter of this Agreement as of the date of this Agreement has created or is intended to create a contract of employment or a\npromise to provide any benefits. If You and the Company enter into or have entered into an Employment Agreement, this Agreement is to be read\nand applied consistently with that Agreement.\n2. DEFINITIONS . As used in this Agreement, the following terms shall have the following meanings:\n2.1\n“Business Partner” means each and every person and/or entity who or that, at any time during the two (2) years prior to termination of\nYour employment: (i) was either a customer, lender, supplier or subcontractor of or to the Company; (ii) was in contact with You or in\ncontact with any other employee, owner, or agent of the Company, of which contact You either were involved or were or should have\nbeen aware, concerning receiving or providing any product or service from the Company; or (iii) was solicited by the Company, or in\nconsideration or planning to be solicited by the Company, in an effort in which You were involved or of which You were or should have\nbeen aware.\n2.2\n“Conflicting Services” means any service or process of any person or production homebuilding organization, other than the Company,\nsettling in excess of 250 units annually, which directly competes with the Company in the business of designing, constructing and selling\nfor-sale single-family homes, townhomes and condominiums within the Washington, D.C. metropolitan area or in any other geographic\narea where the Company is conducting operations or has demonstrable plans to commence operations within six (6) months during Your\nemployment by the Company or about which You acquire Confidential Information during Your employment by the Company.\n2.3\n“Confidential Information” means knowledge or information not generally known to the public or in the home construction industry\n(including information conceived, discovered or developed by You), that You learn of, possess, or to which You have access through\nYour employment by the Company, related to the Company or its Business Partners, including but not limited to the information\nlisted on Schedule B to this Agreement. Confidential Information shall not include information that is or becomes publicly known\nthrough no breach of this Agreement or other act or omission of the Employee. The phrase “publicly known” shall mean readily\naccessible to the public in a written publication, and shall not include information that is only available by a substantial searching of the\npublished literature, and information the substance of which must be pieced together from a number of different publications and\nsources. The burden of proving that information or skills and experience are not Confidential Information shall be on the party asserting\nsuch exclusion.\n3. RETURN OF COMPANY PROPERTY. You agree that at any time requested by the Company and/or at termination of Your employment with\nthe Company for any reason, You will promptly deliver to the Company all property and materials in any form belonging to or relating to the\nCompany, its business and the business of any Business Partner, including but not limited to, the property listed on Schedule A to this Agreement.\nYou agree not to download or keep copies of company property in any hard or soft format. You agree that You have no ownership or interest in any\nCompany property.\n4. RESTRICTIONS.\n4.1. You agree that while You are employed by the Company, You will not solicit or provide Conflicting Services except on behalf of or at\nthe direction of the Company.\n4.2 At any time during and after Your employment with the Company You agree:\n4.2.1 You will not disclose Confidential Information to any person or entity without first obtaining the Company’s consent, and will\ntake all reasonable precautions to prevent inadvertent disclosure of such Confidential Information. You agree to make every\neffort to ensure that persons working in any capacity for the Company, including without limitation employees, officers, directors,\nvendors, sub-contractors, attorneys, and agents, subsidiary or parent entities (and the employees, officers, directors, vendors,\ncontractors, attorneys, and agents, thereof) are permitted access to Confidential Information on a strictly “need to know” basis.\nThis prohibition against Your disclosure of Confidential Information includes, but is not limited to, disclosing the fact that any\nsimilarity exists between Confidential Information and information independently developed by another person or entity. You\nunderstand that the existence of such a similarity does not excuse You from honoring Your obligations under this Agreement.\n4.2.2 You will not use any Confidential Information for Your personal benefit or for the benefit of any person or entity other than the\nCompany. You will not use, copy or transfer Confidential Information other than as necessary in carrying out Your duties on\nbehalf of the Company, without first\n2\nobtaining the Company’s written consent, and will take all reasonable precautions to prevent inadvertent use, copying or transfer\nof Confidential Information. This prohibition against Your use, copying, or transfer of Confidential Information includes, but is\nnot limited to, selling, licensing or otherwise exploiting, directly or indirectly, any products or services (including software in any\nform) which embody or are derived from Confidential Information, or exercising judgment in performing analysis based upon\nknowledge of Confidential Information. Without in any way limiting the generality of this subsection, You agree not to directly\nor indirectly circumvent or compete with the Company with regard to any Confidential Information.\n4.2.3 You will not make any written use of or reference to the Company’s name or trademarks (or any name under which the Company\ndoes business) for any marketing, public relations, advertising, display or other business purpose unrelated to the express business\npurposes and interests of the Company or make any use of the Company’s facilities for any activity unrelated to the express\nbusiness purposes and interests of the Company, without the prior written consent of the Company, which consent may be\nwithheld or granted in the Company’s sole and absolute discretion.\n4.2.4 In the event that You receive a subpoena or order of a court, or other body having jurisdiction over a matter, in which You are\ncompelled to produce any information relevant to the Company, whether confidential or not, You will immediately provide the\nCompany with written notice of this subpoena or order so that the Company may timely move to quash if appropriate.\n4.2.5 . If a court decides that Section 4.2 or any of its restrictions is unenforceable for lack of reasonable temporal limitation and the\nAgreement or restriction(s) cannot otherwise be enforced, You and the Company agree that twelve (12) months shall be the\ntemporal limitation relevant to the contested restriction; provided, however, that this Section 4.2 .5 shall not apply to trade secrets\nprotected without temporal limitation under applicable law.\n4.3 For the six (6) months immediately following the termination of Your employment with the Company for any reason, provided however,\nupon one year of continuous employment with the Employer, the six month limitation period set forth above shall automatically adjust to\na twelve (12) month period without further action of the Executive or Employer, You agree:\n4.3.1 . You will not solicit or provide Conflicting Services except on behalf of or at the direction of the Company.\n4.3.2 . You will not solicit, perform or offer to perform any Conflicting Services for a Business Partner.\n3\n4.3.3 . You will not request, induce, or attempt to induce any Business Partner to terminate its relationship with the Company;\n4.3.4 You will not attempt to hire, employ or associate in business with any person employed by the Company or who has left the\nemployment of the Company within the preceding six (6) months and You will not discuss any potential employment or business\nassociation with such person, even if You did not initiate the discussion or seek out the contact.\n5. REASONABLENESS OF RESTRICTIONS AND SEVERABILITY.\n5.1. You represent and agree that You have read this entire Agreement, and understand it. You agree that this Agreement does not prevent\nYou from earning a living or pursuing Your career. You agree that the restrictions contained in this Agreement are reasonable, proper,\nand necessitated by the Company’s legitimate business interests. You agree that the restrictions placed on You under this Agreement are\nreasonable given the nature of the compensation (including any grant of equity) that you have received and may continue to receive from\nthe Company. You represent and agree that You are entering into this Agreement freely and with knowledge of its content and with the\nintent to be bound by the Agreement and the restrictions contained in it.\n5.2. In the event that a court finds this Agreement, or any of its restrictions, to be ambiguous, unenforceable, or invalid, You and the\nCompany agree that the court shall read the Agreement as a whole and interpret the restriction(s) at issue to be enforceable and valid to\nthe maximum extent allowed by law.\n5.3. If the Court declines to enforce this Agreement in the manner provided in subparagraph 5.2, You and the Company agree that this\nAgreement will be automatically modified to provide the Company with the maximum protection of its business interests allowed by law\nand You agree to be bound by this Agreement as modified.\n5.4. You and the Company agree that the geographic market for the Company’s products and services is the Washington, D.C. and Raleigh,\nN.C. metropolitan areas, so that this Agreement applies to Your activities throughout those geographic areas. If, however, after applying\nthe provisions of subparagraphs 5.2 and 5.3, a court still decides that this Agreement or any of its restrictions is unenforceable for lack of\nreasonable geographic limitation and the Agreement or restriction(s) cannot otherwise be enforced You and the Company agree that the\nfifty (50) miles radius from any office at which You worked for the Company on either a regular or occasional basis during the two years\nimmediately preceding termination of Your employment with the Company shall be the geographic limitation relevant to the contested\nrestriction.\n4\n5.5 If any provision of this Agreement is declared to be ambiguous, unenforceable or invalid, the remainder of this Agreement shall remain\nin full force and effect, and the Agreement shall be read as if the ambiguous, unenforceable or invalid provision was not contained in the\nAgreement.\n6. INJUNCTIVE RELIEF AND REMEDIES.\n6.1. You acknowledge that it may be impossible to assess the damages caused by Your violation of this Agreement, or any of its terms. You\nagree that any threatened or actual violation or breach of this Agreement, or any of its terms, will constitute immediate and irreparable\ninjury to the Company.\n6.2. You agree that in addition to any and all other damages and remedies available to the Company if You breach this Agreement, the\nCompany shall be entitled to temporary injunctive relief, without being required to post a bond, and permanent injunctive relief, without\nthe necessity of proving actual damage, to prevent You from violating or breaching this Agreement or any of its terms.\n6.3. In the event that the Company enforces this Agreement through a court order, You agree that the restrictions contained in Section 4.3 of\nthis Agreement shall remain in effect for a period of twelve (12) months from the effective date of the Order enforcing the Agreement.\n6.4. You agree that if the Company is successful in whole or part in any legal or equitable action against You under this Agreement, the\nCompany shall be entitled to payment of all costs, including reasonable attorneys’ fees, from You.\n7. PUBLICATION OF THIS AGREEMENT TO SUBSEQUENT EMPLOYERS OR BUSINESS ASSOCIATES OF EMPLOYEE.\n7.1. If You are offered employment or the opportunity to enter into any business venture (as owner, partner, consultant or other capacity) with\na person or entity which provides or is planning to provide Conflicting Services while the restrictions described in paragraph 4.3 of this\nAgreement are in effect, You agree to inform Your potential employer, partner, co-owner and/or others involved in managing the\nbusiness which You have an opportunity to join of Your obligations under this Agreement and also agree to provide such person or\npersons with a copy of this Agreement.\n7.2. You also authorize the Company to provide copies of this Agreement to any of the persons or entities described in subparagraph 7.1 and\nto make such persons aware of Your obligations under this Agreement.\n8. MISCELLANEOUS .\n8.1. This Agreement and the restrictions and obligations in it survive the employment relationship and are binding regardless of the reason\nfor termination of employment.\n5\n8.2. The Agreement is for the benefit of You and of the Company, its successor, assigns, parent corporations, subsidiaries, and/or purchasers.\n8.3. This Agreement is governed by the laws of the Commonwealth of Virginia without regard to the conflicts of laws or principles thereof.\nWith respect to any litigation based on, arising out of, or in connection with this Agreement, You hereby expressly submit to the personal\njurisdiction of the Fairfax County Circuit Court for the Commonwealth of Virginia and of the United States District Court for the Eastern\nDistrict of Virginia. You hereby expressly waive, to the fullest extent permitted by law, any objection that You may now or hereafter have\nto the laying of venue of any such litigation brought in any such court referred to above, including without limitation any claim that any\nsuch litigation has been brought in an inconvenient forum.\n8.4. No waiver by the Company of any breach of any of the provisions of this Agreement is a waiver of any preceding or succeeding breach\nof the same or any other provisions of this Agreement. No waiver shall be effective unless in writing and then only to the extent\nexpressly set forth in writing.\n8.5. Except as expressly provided otherwise in this Agreement, nothing in this Agreement grants a license or permission to use any\nintellectual property of Company, whether owned, pending, or currently under development.\n8.6. This Agreement may be amended by a writing signed by both parties; provided, however, that Schedules A and B to this Agreement may\nbe amended by the Company at any time and the amended schedules attached to this Agreement and made a part of it.\n8.7 You agree that on the subjects covered in this Agreement, it is the entire Agreement between You and the Company, superseding any\nprevious oral or written communications, representations, understanding, or agreements with the Company or with any representative of\nthe Company. By signing this Agreement You represent that You have read and understand this Agreement, You have had an\nopportunity to consult legal counsel concerning this Agreement and that You sign it voluntarily.\nComstock Homebuilding Companies, Inc.\nEmployee\nBy:\nChristopher Clemente\nJoseph M. Squeri\nChief Executive Officer\n6\nSCHEDULE A\nCOMPANY PROPERTY\nFor purposes of the Confidentiality and Non-Competition Agreement between Comstock Homebuilding Companies, Inc. and Joseph Squeri\ndated August , 2010, Company Property shall include but not be limited to:\n1. All lists of and information pertaining to any Business Partner.\n2. All Confidential Information of the Company.\n3. All notes, files, correspondence (including copies of e-mail or voice mail messages) and memoranda prepared or received in the course\nof employment.\n4. All manuals reports, records, notebooks, plans, photographs, specifications, technical data and drawings prepared or received in the\ncourse of employment.\n5. All computers, printers, computer hardware and software, computer programs, program listings, diskettes, CD’s, DVD’s, audio and\nvideotapes; downloads and source/object codes.\n7\nSCHEDULE B\nCONFIDENTIAL INFORMATION\nFor purposes of the Confidentiality and Non-Competition Agreement between Comstock Homebuilding Companies, Inc. and Joseph Squeri\ndated August , 2010, Confidential Information shall include but not be limited to the following information where it is not generally known to the\npublic or in the home construction industry (including information conceived, discovered or developed by Employee):\n1. Information relating to the Company’s proprietary rights prior to any public disclosure thereof, including but not limited to the nature of\nthe proprietary rights, discoveries, inventions, works of authorship, techniques, improvements and ideas (whether patentable or not),\nhardware, software, computer programs, source or object codes, documentation, processes, design, concept, development, methods,\ncodes, formulas, production data, technical and engineering data, test data and test results, knowledge of codes for data fields,\ndocumentation manuals (including data dictionaries), the status and details of research and development of products and services, and\ninformation regarding acquiring, protecting, enforcing and licensing proprietary rights (including patents, copyrights and trade secrets).\n2. Work product resulting from or related to work or projects performed or to be performed for the Company or for clients of the Company,\nincluding but not limited to the interim and final lines of inquiry, hypotheses, research and conclusions related thereto and the methods,\nprocesses, procedures, analyses, techniques and audits used in connection therewith.\n3. Marketing and development plans, marketing strategies, product descriptions and program descriptions, price and cost data, price and fee\namounts, pricing and billing policies, quoting procedures, marketing techniques and methods of obtaining business, forecasts and\nforecast assumptions and volumes, and future plans and potential strategies of the Company which have been or are being discussed.\n4. Computer software of any type or form in any stage of actual or anticipated research and development, including but not limited to\nprograms and program modules, routines and subroutines, processes, algorithms, design concepts, design specifications (design notes,\nannotations, documentation, flowcharts, coding sheets, and the like), source code, object code and load modules, programming, program\npatches, data models and systems plans, design, application and documentation.\n5. Internal Company personnel information, employee lists, compensation data, non-public financial information, financial projections and\nbusiness plans and strategy, operational plans, financing and capital-raising plans, activities, and agreements,\n8\nvendor names and other vendor information (including vendor characteristics, services and agreements), purchasing and internal cost\ninformation, internal services and operational manuals, and the manner and methods of conducting the Company’s business.\n6. Non-public information pertaining to any Business Partner and its needs or desires with respect to the products and services offered by\nthe Company, including, but not limited to, names of Business Partner and their representatives, proposals, bids, contracts and their\ncontents and parties, data provided to the Company by Business Partner, the type, quantity and specifications of products and services\npurchased, leased, licensed or provided or received by Business Partner and other non-public information.\n7. Any information that a competitor of the Company could use to the competitive disadvantage of the Company.\n9
+86a578a6e19238530935b1f54a554b36.pdf	effective_date jurisdiction party term	EX-99.(D)(1) 5 dex99d1.htm NON-DISCLOSURE AGREEMENT\nExhibit (d)(1)\nSTRICTLY CONFIDENTIAL\nNon-Disclosure Agreement\nJuly 1, 2005\nOmnicare, Inc.\nNectarine Acquisition Corp.\n100 East RiverCenter Boulevard\nCovington, Kentucky 41011\nAttn: Joel F. Gemunder, President and Chief Executive Officer\nDear Mr. Gemunder:\nIn connection with your consideration of a possible business combination transaction involving all or substantially all (a “Possible\nTransaction”) of the outstanding common stock of NeighborCare, Inc. (collectively with its businesses, subsidiaries and divisions, the “Company”),\nthe Company is prepared to make available to you certain information concerning the business, financial condition, operations, assets and liabilities\nof the Company. In connection with the Possible Transaction, which may involve stock or other securities issued by you, you are prepared to make\navailable to the Company certain information concerning you and your business, financial condition, operations, assets and liabilities. The party\ndisclosing information shall be referred to herein as the “Disclosing Party” and the party receiving information shall be referred to as the “Receiving\nParty.”\nAs a condition to each Receiving Party and their Representatives (as defined below) being furnished with such information, the\nReceiving Party agrees to treat any information concerning the Disclosing Party (whether prepared by the Disclosing Party, its Representatives or\notherwise and irrespective of the form of communication) which is furnished to the Receiving Party or its Representatives now or in the future by or\non behalf of the Disclosing Party (collectively, the “Evaluation Material”) and Discussion Information (as defined below) confidential in accordance\nwith the provisions of this letter agreement, and to take or refrain from taking certain other actions as hereinafter set forth. As used in this letter\nagreement, a party’s “Representatives” shall include the directors, officers, employees, agents, affiliates (as such term is defined under the Securities\nExchange Act of 1934, as amended (the “1934 Act”)), partners, advisors or representatives of such party and those of its subsidiaries, affiliates\nand/or divisions (including, without limitation, attorneys, accountants, consultants, bankers, financial advisors and any Representatives of the\nReceiving Party’s advisors).\nThe term “Evaluation Material” shall be deemed to include any notes, analyses, compilations, studies, forecasts, interpretations or other\ndocuments prepared by the Receiving Party or its Representatives that derive from, contain, reflect or are based upon, in whole or in part, the\ninformation furnished to the Receiving Party or its Representatives pursuant hereto.\nJuly 1, 2005\nPage2of8\nThe term “Evaluation Material” shall also be deemed to include any oral, written or visual information obtained by meeting Representatives of the\nDisclosing Party or touring any of its facilities. The term “Evaluation Material” does not include information which (i) is or becomes generally\navailable to the public other than as a result of a disclosure by the Receiving Party or its Representatives, (ii) was within your possession prior to its\nbeing furnished to you by or on behalf of the Company; provided that the source of such information was not known to be bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such\ninformation, (iii) was developed independently by the Receiving Party without use, directly or indirectly, of any Evaluation Material or (iv) becomes\navailable to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its Representatives, provided that such\nsource was not known to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the\nCompany or any other party with respect to such information.\nExcept as otherwise permitted hereunder, the Receiving Party hereby agrees that the Receiving Party and its Representatives shall use\nthe Evaluation Material solely for the purpose of evaluating a Possible Transaction and for no other purpose, that the Evaluation Material and the\nDiscussion Information (as defined below) will be kept confidential and that the Receiving Party and its Representatives will not disclose any of the\nEvaluation Material or the Discussion Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any\ndisclosure of the Evaluation Material or the Discussion Information to which the Disclosing Party gives its prior written consent, and (ii) the\nReceiving Party may make any disclosure of the Evaluation Material or the Discussion Information to such of its Representatives who need to know\nsuch information for the purpose of assisting the Receiving Party in its evaluation of a Possible Transaction, are provided with a copy of this letter\nagreement, agree to keep the Evaluation Material and the Discussion Information confidential and agree to be bound by the terms of this letter\nagreement to the same extent as if they were parties hereto. In any event, the Receiving Party agrees to undertake reasonable precautions to\nsafeguard and protect the confidentiality of the Evaluation Material and the Discussion Information, the Receiving Party hereby accepts\nresponsibility for any breach of this letter agreement by any of its Representatives (it being understood that such responsibility shall be in addition to\nand not by way of limitation of any right or remedy that the Company may have against such Representatives), and the Receiving Party agrees at its\nsole expense to take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or uses of the Evaluation\nMaterial and the Discussion Information. The Receiving Party understands that some Evaluation Material relating to customers and customer\ncontracts may, and Evaluation Material related to product pricing shall, if provided, be designated for review solely by the Receiving Party’s outside\nadvisors or by those of the Receiving Party’s employees whose responsibilities do not include contacting customers or potential customers of the\nReceiving Party’s institutional pharmacy business or in the determination of product pricing for the Receiving Party’s institutional pharmacy\nbusiness, and the Receiving Party agrees to, and to cause its Representatives to, abide by such designation.\nIn addition, the Receiving Party agrees that, without the prior written consent of the Disclosing Party, the Receiving Party and its\nRepresentatives will not disclose to any other person the fact that the Evaluation Material has been made available to the Receiving Party and\nJuly 1, 2005\nPage3of8\nits Representatives, that discussions or negotiations are taking place concerning a Possible Transaction or any of the terms, conditions or other facts\nwith respect thereto, including the status thereof and the identity of the parties thereto (collectively, the “Discussion Information”); provided that, in\nthe event the Receiving Party becomes obligated to make public disclosure of Discussion Information pursuant to its obligations under 1934 Act or\nany other applicable law, rule or regulation, the Receiving Party shall, except as otherwise consented to by the Disclosing Party, limit such disclosure\nto the minimum disclosure so required and, without limiting the foregoing, to the extent the Receiving Party has any discretion with respect thereto,\nthe Receiving Party shall not disclose any possible terms or of any possible transaction involving the Disclosing Party. The term “person” as used in\nthis letter agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity. In the event\nthat the Receiving Party or any of its Representatives are requested or required (either by law, rule, regulation, or other applicable judicial or\ngovernmental order or by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand or other similar process) to disclose any of the Evaluation Material or Discussion Information, the Receiving Party shall provide the\nDisclosing Party with prompt written notice of any such request or requirement so that the Disclosing Party may in its sole discretion and expense\nseek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by the Disclosing Party, the Receiving Party or any of its Representatives are nonetheless,\nin the opinion of outside counsel, legally compelled to disclose Evaluation Material or Discussion Information to any tribunal, the Receiving Party or\nits Representatives may, without liability hereunder, disclose to such tribunal only that portion of the Evaluation Material or Discussion Information\nwhich such counsel advises the Receiving Party is legally required to be disclosed, provided that the Receiving Party uses reasonable efforts to\npreserve the confidentiality of the Evaluation Material and the Discussion Information, including, without limitation, by cooperating with the\nDisclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation\nMaterial and the Discussion Information by such tribunal at the Disclosing Party’s expense.\nThe Receiving Party recognizes and acknowledges the competitive value of the Evaluation Material and the damage that could result to\nthe Disclosing Party if the Evaluation Material were used or disclosed except as authorized by this letter.\nIn the event that either party decides not to proceed with a Possible Transaction, such party will promptly inform the Company of that\ndecision. Upon the request of the Disclosing Party in its sole discretion and for any reason, the Receiving Party will as directed by the Disclosing\nParty promptly (and in no event later than five business days after the request therefor) deliver to the Disclosing Party or destroy all Evaluation\nMaterial and Discussion Information (and any copies thereof) and cause its Representatives to do the same and the Receiving Party shall provide the\nDisclosing Party with written confirmation of destruction; provided that outside counsel to the Receiving Party may retain one copy of the\nEvaluation Material in confidential restricted access files for use only in the event a dispute arises between the parties hereunder and only if\nreasonably related to such dispute. Notwithstanding the return or destruction of the Evaluation Material and Discussion Information, the Receiving\nParty and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.\nJuly 1, 2005\nPage4of8\nThe Receiving Party understands, acknowledges and agrees that neither the Disclosing Party nor any of its Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or the Discussion Information. The\nReceiving Party agrees that neither the Disclosing Party nor any of its Representatives shall have any liability to the Receiving Party or to any of its\nRepresentatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those\nrepresentations or warranties which are made in a final definitive agreement regarding any transactions contemplated hereby, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nIn consideration of the Evaluation Material being furnished to the Receiving Party, the Receiving Party hereby agrees that, for a period\nof one year from the date hereof, neither the Receiving Party nor any of its Representatives will solicit to employ (i) any of the officers of the\nDisclosing Party or (ii) any of the employees of the Disclosing Party with whom the Receiving Party has contact or who are specifically identified to\nthe Receiving Party by the Disclosing party or any of its Representatives for purposes hereof during the period of the Receiving Party’s investigation\nof the Disclosing Party, in either case without obtaining the prior written consent of the Disclosing Party; provided, however, that the Receiving\nParty may engage in general solicitations for employees in the ordinary course of business and consistent with past practice and that the Receiving\nParty may solicit or employ any employee of the Disclosing Party six months after such party’s employment has been terminated by the Disclosing\nParty.\nThe Receiving Party acknowledges and agrees that it is aware (and that its Representatives are aware or, prior to receipt of any\nEvaluation Material or Discussion Information, will be advised by the Receiving Party) of the restrictions imposed by the United States federal\nsecurities laws on a person possessing material non-public information about a public company and that the Receiving Party and its Representatives\nwill comply with such laws.\nSubject to the following paragraph, you agree that, for a period of one year from the date of this letter agreement, unless specifically\ninvited in writing by the Company, neither you nor any of your Representatives will in any manner, directly or indirectly: (a) effect or seek, offer or\npropose (whether publicly or otherwise) to effect, or participate in, facilitate or encourage any other person to effect or seek, offer or propose\n(whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof), or rights or options\nto acquire any securities (or beneficial ownership thereof), or any assets, indebtedness or businesses of the Company or any of its subsidiaries;\nprovided that this paragraph shall not restrict your Representatives or any benefit plan that is maintained for your or your Representatives’\nemployees from acquiring up to an aggregate of two percent (2%) of the outstanding common stock of the Company solely for investment purposes\nor restrict you or your Representatives from acquiring assets from the Company or any of its subsidiaries in the ordinary course of business so long\nas, in either such case, such acquisition is not related to or in furtherance of any other activities by any other person that is restricted by any other\nprovision of this paragraph, (ii) any tender offer or exchange offer, merger or other business combination involving the Company, any of the\nsubsidiaries or assets of the Company or the subsidiaries constituting a significant portion of the\nJuly 1, 2005\nPage5of8\nconsolidated assets of the Company and its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary\ntransaction with respect to the Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of\nthe Securities and Exchange Commission) or consents to vote any voting securities of the Company, including soliciting consents or taking other\naction with respect to the calling of a special meeting of the Company’s shareholders; (b) form, join or in any way participate in a “group” (as\ndefined under the 1934 Act) with respect to the Company; or (c) otherwise act, alone or in concert with others, to seek representation on or to control\nor influence the management, Board of Directors or policies of the Company or to obtain representation on the Board of Directors of the Company.\nYou also agree during such period not to request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision\nof this paragraph (including this sentence).\nThe preceding paragraph notwithstanding, (1) you will not be deemed to be in breach of either of clause (a)(i) or (a)(ii) of the preceding\nparagraph by virtue of the maintenance, amendment and/or extension by you or your affiliates of the Offer made by and referred to in the\nSupplement to the Offer to Purchase (the “Supplement”) filed as an exhibit to Amendment No. 28 to the Tender Offer Statement on Schedule TO\nfiled by you and Nectarine Acquisition Corp. with the Securities and Exchange Commission on June 16, 2005) or the announcement,\ncommencement or maintenance by you or your affiliates of a new acquisition offer, whether by way of a tender or exchange offer, merger or\notherwise (a “New Offer”); provided that the terms of the Offer or the New Offer (including any extension or amendment thereof) shall in no event\n(A) provide for a per share consideration that is less than the Offer price in effect on the date of this letter agreement or (B) otherwise contain terms\nand conditions that are less favorable in any material respect to the Company’s shareholders than the terms and conditions set forth in the\nSupplement (an Offer or New Offer made and/or maintained in good faith and meeting the terms of this proviso, a “Status Quo Offer”); (2) you will\nnot be deemed to be in breach of any other provision of the preceding paragraph by virtue of the taking of any action otherwise prohibited by such\nprovisions so long as any such action is taken during the time that such Status Quo Offer is pending and open; and (3) (A) if the Company has\nentered into or enters into any confidentiality agreement in connection with providing any Evaluation Material to any other person, and such other\nconfidentiality agreement (including any amendments thereto) either (i) does not contain a standstill provision or (ii) contains less restrictive\nprovisions than those specified in the immediately preceding paragraph, then the provisions of the immediately preceding paragraph shall be deemed\nto be automatically modified without further action by either party so that the provisions set forth in the immediately preceding paragraph are no less\nfavorable to you than those applicable to such third party and (B) if the Company enters into a binding agreement with another person for a merger\nor business combination transaction as a result of which the Company’s shareholders immediately prior to such transaction would own less than a\nmajority of the voting securities of the combined company following such acquisition or business combination, then the restrictions on you set forth\nin the immediately preceding paragraph shall be deemed to automatically terminate without further action by either party.\nDuring the course of the Receiving Party’s evaluation, all inquiries and other communications are to be made directly to the financial\nadvisors for the Disclosing Party or employees or representatives of the Disclosing Party specified by the Disclosing Party. Accordingly, the\nReceiving Party agrees not to directly or indirectly contact or communicate\nJuly 1, 2005\nPage6of8\nwith any officer, director, employee, agent, customer or creditor of the Disclosing Party concerning a Possible Transaction, or to seek any\ninformation in connection therewith from such person, without the prior consent of the Disclosing Party.\nEach party understands and agrees that no contract or agreement providing for any Possible Transaction shall be deemed to exist\nbetween the parties unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and until a final\ndefinitive agreement regarding a Possible Transaction has been executed and delivered, neither party will be under any legal obligation of any kind\nwhatsoever with respect to such a Possible Transaction by virtue of this letter agreement except for the matters specifically agreed to herein. Each\nparty further acknowledges and agrees that each party reserves the right, in its sole discretion, to reject any and all proposals made by the other party\nor any of its Representatives with regard to a Possible Transaction, and to terminate discussions and negotiations with the other party at any time and\nthat the Company is under no obligation to engage in any Possible Transaction of any nature with you. It is understood and agreed that no failure or\ndelay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\nIt is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by the\nReceiving Party or any of its Representatives and that the Disclosing Party shall be entitled to equitable relief, including, without limitation,\ninjunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach\nby the Receiving Party of this letter agreement but shall be in addition to all other remedies available at law or equity to the Disclosing Party. The\nReceiving Party further agrees not to raise as a defense or objection to the request or granting of such relief that any breach of this agreement is or\nwould be compensable by an award of money damages and agree to waive any requirements for the securing or posting of any bond in connection\nwith such remedy.\nThis letter agreement is for the benefit of the Disclosing Party (and its respective subsidiaries and affiliates), and shall be governed by\nand construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within the State of\nNew York. Each party also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New\nYork for any actions, suits or proceedings arising out of or relating to this agreement and the transactions contemplated hereby (and each party agrees\nnot to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons,\nnotice or document by U.S. registered mail to such party’s address set forth above shall be effective service of process for any action, suit or\nproceeding brought against the party in any such court). Each party hereby irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of this agreement or the transactions contemplated hereby in the courts of the State of New York,\nand hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding\nbrought in any such court has been brought in an inconvenient forum.\nJuly 1, 2005\nPage7of8\nThis letter agreement contains the entire agreement between the parties regarding its subject matter and supersedes all prior agreements,\nunderstandings, arrangements and discussions between the parties regarding such subject matter.\nNo provision in this agreement can be waived or amended except by written consent of each of the parties, which consent shall\nspecifically refer to this paragraph (or such provision) and explicitly make such waiver or amendment.\nSTRICTLY CONFIDENTIAL\nThis letter agreement may be signed by facsimile and in one or more counterparts, each of which shall be deemed an original but all of\nwhich shall be deemed to constitute a single instrument.\nPlease confirm your agreement with the foregoing by having a duly authorized officer of your organization sign and return one copy of\nthis letter to the undersigned, whereupon this letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nNEIGHBORCARE, INC.\nBy: /S/ JOHN J. ARLOTTA\nName: John J. Arlotta\nTitle: Chairman, President and Chief Executive Officer\nCONFIRMED AND AGREED\nas of the date written above:\nOMNICARE, INC.\nNECTARINE ACQUISITION CORP.\nBy: /S/ CHERYL D. HODGES\nName: Cheryl D. Hodges\nTitle: Senior Vice President and Secretary	EX-99.(D)(1) 5 dex99d1.htm NON-DISCLOSURE AGREEMENT\nExhibit (d)(1)\nSTRICTLY CONFIDENTIAL\nNon-Disclosure Agreement\nJuly 1, 2005\nOmnicare, Inc.\nNectarine Acquisition Corp.\n100 East RiverCenter Boulevard\nCovington, Kentucky 41011\nAttn: Joel F. Gemunder, President and Chief Executive Officer\nDear Mr. Gemunder:\nIn connection with your consideration of a possible business combination transaction involving all or substantially all (a “Possible\nTransaction”) of the outstanding common stock of NeighborCare, Inc. (collectively with its businesses, subsidiaries and divisions, the “Company”),\nthe Company is prepared to make available to you certain information concerning the business, financial condition, operations, assets and liabilities\nof the Company. In connection with the Possible Transaction, which may involve stock or other securities issued by you, you are prepared to make\navailable to the Company certain information concerning you and your business, financial condition, operations, assets and liabilities. The party\ndisclosing information shall be referred to herein as the “Disclosing Party” and the party receiving information shall be referred to as the “Receiving\nParty.”\nAs a condition to each Receiving Party and their Representatives (as defined below) being furnished with such information, the\nReceiving Party agrees to treat any information concerning the Disclosing Party (whether prepared by the Disclosing Party, its Representatives or\notherwise and irrespective of the form of communication) which is furnished to the Receiving Party or its Representatives now or in the future by or\non behalf of the Disclosing Party (collectively, the “Evaluation Material”) and Discussion Information (as defined below) confidential in accordance\nwith the provisions of this letter agreement, and to take or refrain from taking certain other actions as hereinafter set forth. As used in this letter\nagreement, a party’s “Representatives” shall include the directors, officers, employees, agents, affiliates (as such term is defined under the Securities\nExchange Act of 1934, as amended (the “1934 Act”)), partners, advisors or representatives of such party and those of its subsidiaries, affiliates\nand/or divisions (including, without limitation, attorneys, accountants, consultants, bankers, financial advisors and any Representatives of the\nReceiving Party’s advisors).\nThe term “Evaluation Material” shall be deemed to include any notes, analyses, compilations, studies, forecasts, interpretations or other\ndocuments prepared by the Receiving Party or its Representatives that derive from, contain, reflect or are based upon, in whole or in part, the\ninformation furnished to the Receiving Party or its Representatives pursuant hereto.\nJuly 1, 2005\nPage 2 of 8\nThe term “Evaluation Material” shall also be deemed to include any oral, written or visual information obtained by meeting Representatives of the\nDisclosing Party or touring any of its facilities. The term “Evaluation Material” does not include information which (i) is or becomes generally\navailable to the public other than as a result of a disclosure by the Receiving Party or its Representatives, (ii) was within your possession prior to its\nbeing furnished to you by or on behalf of the Company; provided that the source of such information was not known to be bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such\ninformation, (iii) was developed independently by the Receiving Party without use, directly or indirectly, of any Evaluation Material or (iv) becomes\navailable to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its Representatives, provided that such\nsource was not known to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the\nCompany or any other party with respect to such information.\nExcept as otherwise permitted hereunder, the Receiving Party hereby agrees that the Receiving Party and its Representatives shall use\nthe Evaluation Material solely for the purpose of evaluating a Possible Transaction and for no other purpose, that the Evaluation Material and the\nDiscussion Information (as defined below) will be kept confidential and that the Receiving Party and its Representatives will not disclose any of the\nEvaluation Material or the Discussion Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any\ndisclosure of the Evaluation Material or the Discussion Information to which the Disclosing Party gives its prior written consent, and (ii) the\nReceiving Party may make any disclosure of the Evaluation Material or the Discussion Information to such of its Representatives who need to know\nsuch information for the purpose of assisting the Receiving Party in its evaluation of a Possible Transaction, are provided with a copy of this letter\nagreement, agree to keep the Evaluation Material and the Discussion Information confidential and agree to be bound by the terms of this letter\nagreement to the same extent as if they were parties hereto. In any event, the Receiving Party agrees to undertake reasonable precautions to\nsafeguard and protect the confidentiality of the Evaluation Material and the Discussion Information, the Receiving Party hereby accepts\nresponsibility for any breach of this letter agreement by any of its Representatives (it being understood that such responsibility shall be in addition to\nand not by way of limitation of any right or remedy that the Company may have against such Representatives), and the Receiving Party agrees at its\nsole expense to take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or uses of the Evaluation\nMaterial and the Discussion Information. The Receiving Party understands that some Evaluation Material relating to customers and customer\ncontracts may, and Evaluation Material related to product pricing shall, if provided, be designated for review solely by the Receiving Party’s outside\nadvisors or by those of the Receiving Party’s employees whose responsibilities do not include contacting customers or potential customers of the\nReceiving Party’s institutional pharmacy business or in the determination of product pricing for the Receiving Party’s institutional pharmacy\nbusiness, and the Receiving Party agrees to, and to cause its Representatives to, abide by such designation.\n \nIn addition, the Receiving Party agrees that, without the prior written consent of the Disclosing Party, the Receiving Party and its\nRepresentatives will not disclose to any other person the fact that the Evaluation Material has been made available to the Receiving Party and\nJuly 1, 2005\nPage 3 of 8\nits Representatives, that discussions or negotiations are taking place concerning a Possible Transaction or any of the terms, conditions or other facts\nwith respect thereto, including the status thereof and the identity of the parties thereto (collectively, the “Discussion Information”); provided that, in\nthe event the Receiving Party becomes obligated to make public disclosure of Discussion Information pursuant to its obligations under 1934 Act or\nany other applicable law, rule or regulation, the Receiving Party shall, except as otherwise consented to by the Disclosing Party, limit such disclosure\nto the minimum disclosure so required and, without limiting the foregoing, to the extent the Receiving Party has any discretion with respect thereto,\nthe Receiving Party shall not disclose any possible terms or of any possible transaction involving the Disclosing Party. The term “person” as used in\nthis letter agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity. In the event\nthat the Receiving Party or any of its Representatives are requested or required (either by law, rule, regulation, or other applicable judicial or\ngovernmental order or by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand or other similar process) to disclose any of the Evaluation Material or Discussion Information, the Receiving Party shall provide the\nDisclosing Party with prompt written notice of any such request or requirement so that the Disclosing Party may in its sole discretion and expense\nseek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by the Disclosing Party, the Receiving Party or any of its Representatives are nonetheless,\nin the opinion of outside counsel, legally compelled to disclose Evaluation Material or Discussion Information to any tribunal, the Receiving Party or\nits Representatives may, without liability hereunder, disclose to such tribunal only that portion of the Evaluation Material or Discussion Information\nwhich such counsel advises the Receiving Party is legally required to be disclosed, provided that the Receiving Party uses reasonable efforts to\npreserve the confidentiality of the Evaluation Material and the Discussion Information, including, without limitation, by cooperating with the\nDisclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation\nMaterial and the Discussion Information by such tribunal at the Disclosing Party’s expense.\nThe Receiving Party recognizes and acknowledges the competitive value of the Evaluation Material and the damage that could result to\nthe Disclosing Party if the Evaluation Material were used or disclosed except as authorized by this letter.\nIn the event that either party decides not to proceed with a Possible Transaction, such party will promptly inform the Company of that\ndecision. Upon the request of the Disclosing Party in its sole discretion and for any reason, the Receiving Party will as directed by the Disclosing\nParty promptly (and in no event later than five business days after the request therefor) deliver to the Disclosing Party or destroy all Evaluation\nMaterial and Discussion Information (and any copies thereof) and cause its Representatives to do the same and the Receiving Party shall provide the\nDisclosing Party with written confirmation of destruction; provided that outside counsel to the Receiving Party may retain one copy of the\nEvaluation Material in confidential restricted access files for use only in the event a dispute arises between the parties hereunder and only if\nreasonably related to such dispute. Notwithstanding the return or destruction of the Evaluation Material and Discussion Information, the Receiving\nParty and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.\nJuly 1, 2005\nPage 4 of 8\nThe Receiving Party understands, acknowledges and agrees that neither the Disclosing Party nor any of its Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or the Discussion Information. The\nReceiving Party agrees that neither the Disclosing Party nor any of its Representatives shall have any liability to the Receiving Party or to any of its\nRepresentatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those\nrepresentations or warranties which are made in a final definitive agreement regarding any transactions contemplated hereby, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nIn consideration of the Evaluation Material being furnished to the Receiving Party, the Receiving Party hereby agrees that, for a period\nof one year from the date hereof, neither the Receiving Party nor any of its Representatives will solicit to employ (i) any of the officers of the\nDisclosing Party or (ii) any of the employees of the Disclosing Party with whom the Receiving Party has contact or who are specifically identified to\nthe Receiving Party by the Disclosing party or any of its Representatives for purposes hereof during the period of the Receiving Party’s investigation\nof the Disclosing Party, in either case without obtaining the prior written consent of the Disclosing Party; provided, however, that the Receiving\nParty may engage in general solicitations for employees in the ordinary course of business and consistent with past practice and that the Receiving\nParty may solicit or employ any employee of the Disclosing Party six months after such party’s employment has been terminated by the Disclosing\nParty.\nThe Receiving Party acknowledges and agrees that it is aware (and that its Representatives are aware or, prior to receipt of any\nEvaluation Material or Discussion Information, will be advised by the Receiving Party) of the restrictions imposed by the United States federal\nsecurities laws on a person possessing material non-public information about a public company and that the Receiving Party and its Representatives\nwill comply with such laws.\nSubject to the following paragraph, you agree that, for a period of one year from the date of this letter agreement, unless specifically\ninvited in writing by the Company, neither you nor any of your Representatives will in any manner, directly or indirectly: (a) effect or seek, offer or\npropose (whether publicly or otherwise) to effect, or participate in, facilitate or encourage any other person to effect or seek, offer or propose\n(whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof), or rights or options\nto acquire any securities (or beneficial ownership thereof), or any assets, indebtedness or businesses of the Company or any of its subsidiaries;\nprovided that this paragraph shall not restrict your Representatives or any benefit plan that is maintained for your or your Representatives’\nemployees from acquiring up to an aggregate of two percent (2%) of the outstanding common stock of the Company solely for investment purposes\nor restrict you or your Representatives from acquiring assets from the Company or any of its subsidiaries in the ordinary course of business so long\nas, in either such case, such acquisition is not related to or in furtherance of any other activities by any other person that is restricted by any other\nprovision of this paragraph, (ii) any tender offer or exchange offer, merger or other business combination involving the Company, any of the\nsubsidiaries or assets of the Company or the subsidiaries constituting a significant portion of the\nJuly 1, 2005\nPage 5 of 8\nconsolidated assets of the Company and its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary\ntransaction with respect to the Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of\nthe Securities and Exchange Commission) or consents to vote any voting securities of the Company, including soliciting consents or taking other\naction with respect to the calling of a special meeting of the Company’s shareholders; (b) form, join or in any way participate in a “group” (as\ndefined under the 1934 Act) with respect to the Company; or (c) otherwise act, alone or in concert with others, to seek representation on or to control\nor influence the management, Board of Directors or policies of the Company or to obtain representation on the Board of Directors of the Company.\nYou also agree during such period not to request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision\nof this paragraph (including this sentence).\nThe preceding paragraph notwithstanding, (1) you will not be deemed to be in breach of either of clause (a)(i) or (a)(ii) of the preceding\nparagraph by virtue of the maintenance, amendment and/or extension by you or your affiliates of the Offer made by and referred to in the\nSupplement to the Offer to Purchase (the “Supplement”) filed as an exhibit to Amendment No. 28 to the Tender Offer Statement on Schedule TO\nfiled by you and Nectarine Acquisition Corp. with the Securities and Exchange Commission on June 16, 2005) or the announcement,\ncommencement or maintenance by you or your affiliates of a new acquisition offer, whether by way of a tender or exchange offer, merger or\notherwise (a “New Offer”); provided that the terms of the Offer or the New Offer (including any extension or amendment thereof) shall in no event\n(A) provide for a per share consideration that is less than the Offer price in effect on the date of this letter agreement or (B) otherwise contain terms\nand conditions that are less favorable in any material respect to the Company’s shareholders than the terms and conditions set forth in the\nSupplement (an Offer or New Offer made and/or maintained in good faith and meeting the terms of this proviso, a “Status Quo Offer”); (2) you will\nnot be deemed to be in breach of any other provision of the preceding paragraph by virtue of the taking of any action otherwise prohibited by such\nprovisions so long as any such action is taken during the time that such Status Quo Offer is pending and open; and (3) (A) if the Company has\nentered into or enters into any confidentiality agreement in connection with providing any Evaluation Material to any other person, and such other\nconfidentiality agreement (including any amendments thereto) either (i) does not contain a standstill provision or (ii) contains less restrictive\nprovisions than those specified in the immediately preceding paragraph, then the provisions of the immediately preceding paragraph shall be deemed\nto be automatically modified without further action by either party so that the provisions set forth in the immediately preceding paragraph are no less\nfavorable to you than those applicable to such third party and (B) if the Company enters into a binding agreement with another person for a merger\nor business combination transaction as a result of which the Company’s shareholders immediately prior to such transaction would own less than a\nmajority of the voting securities of the combined company following such acquisition or business combination, then the restrictions on you set forth\nin the immediately preceding paragraph shall be deemed to automatically terminate without further action by either party.\nDuring the course of the Receiving Party’s evaluation, all inquiries and other communications are to be made directly to the financial\nadvisors for the Disclosing Party or employees or representatives of the Disclosing Party specified by the Disclosing Party. Accordingly, the\nReceiving Party agrees not to directly or indirectly contact or communicate\nJuly 1, 2005\nPage 6 of 8\nwith any officer, director, employee, agent, customer or creditor of the Disclosing Party concerning a Possible Transaction, or to seek any\ninformation in connection therewith from such person, without the prior consent of the Disclosing Party.\nEach party understands and agrees that no contract or agreement providing for any Possible Transaction shall be deemed to exist\nbetween the parties unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and until a final\ndefinitive agreement regarding a Possible Transaction has been executed and delivered, neither party will be under any legal obligation of any kind\nwhatsoever with respect to such a Possible Transaction by virtue of this letter agreement except for the matters specifically agreed to herein. Each\nparty further acknowledges and agrees that each party reserves the right, in its sole discretion, to reject any and all proposals made by the other party\nor any of its Representatives with regard to a Possible Transaction, and to terminate discussions and negotiations with the other party at any time and\nthat the Company is under no obligation to engage in any Possible Transaction of any nature with you. It is understood and agreed that no failure or\ndelay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\nIt is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by the\nReceiving Party or any of its Representatives and that the Disclosing Party shall be entitled to equitable relief, including, without limitation,\ninjunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach\nby the Receiving Party of this letter agreement but shall be in addition to all other remedies available at law or equity to the Disclosing Party. The\nReceiving Party further agrees not to raise as a defense or objection to the request or granting of such relief that any breach of this agreement is or\nwould be compensable by an award of money damages and agree to waive any requirements for the securing or posting of any bond in connection\nwith such remedy.\nThis letter agreement is for the benefit of the Disclosing Party (and its respective subsidiaries and affiliates), and shall be governed by\nand construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within the State of\nNew York. Each party also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New\nYork for any actions, suits or proceedings arising out of or relating to this agreement and the transactions contemplated hereby (and each party agrees\nnot to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons,\nnotice or document by U.S. registered mail to such party’s address set forth above shall be effective service of process for any action, suit or\nproceeding brought against the party in any such court). Each party hereby irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of this agreement or the transactions contemplated hereby in the courts of the State of New York,\nand hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding\nbrought in any such court has been brought in an inconvenient forum.\nJuly 1, 2005\nPage 7 of 8\nThis letter agreement contains the entire agreement between the parties regarding its subject matter and supersedes all prior agreements,\nunderstandings, arrangements and discussions between the parties regarding such subject matter.\nNo provision in this agreement can be waived or amended except by written consent of each of the parties, which consent shall\nspecifically refer to this paragraph (or such provision) and explicitly make such waiver or amendment.\nSTRICTLY CONFIDENTTAL\nThis letter agreement may be signed by facsimile and in one or more counterparts, each of which shall be deemed an original but all of which shall be deemed to constitute a single instrument. Please confirm your agreement with the foregoing by having a duly authorized officer of your organization sign and return one copy of this letter to the undersigned, whereupon this letter agreement shall become a binding agreement between you and the Company. CONFIRMED AND AGREED\nas of the date written above:\nOMNICARE, INC.\nNECTARINE ACQUISITION CORP.\nBy: /S/ CHERYL D. HODGES\nName: Cheryl D. Hodges\nTitle: Senior Vice President and Secretary\nVery truly yours,\nNEIGHBORCARE, INC.\nBy: /S/ JOHN J. ARLOTTA\nName: John J. Arlotta\nTitle: Chairman, President and Chief Executive Officer	EX-99.(D)(1) 5 dex99d1.htm NON-DISCLOSURE AGREEMENT\nExhibit (d)(1)\nSTRICTLY CONFIDENTIAL\nNon-Disclosure Agreement\nJuly 1, 2005\nOmnicare, Inc.\nNectarine Acquisition Corp.\n100 East RiverCenter Boulevard\nCovington, Kentucky 41011\nAttn: Joel F. Gemunder, President and Chief Executive Officer\nDear Mr. Gemunder:\nIn\nconnection with your consideration of a possible business combination transaction involving all or substantially all (a "Possible\nTransaction")\nof\nthe\noutstanding\ncommon\nstock\nof\nNeighborCare,\nInc.\n(collectively\nwith\nits\nbusinesses,\nsubsidiaries\nand\ndivisions,\nthe\n"Company."),\nthe Company is prepared to make available to you certain information concerning the business, financial condition, operations, assets and liabilities\nof the Company. In connection with the Possible Transaction, which may involve stock or other securities issued by you, you are prepared to make\navailable to the Company certain information concerning you and your business, financial condition, operations, assets and liabilities. The party\ndisclosing information shall be referred to herein as the "Disclosing Party" and the party receiving information shall be referred to as the "Receiving\nParty."\nAs a condition to each Receiving Party and their Representatives (as defined below) being furnished with such information, the\nReceiving Party agrees to treat any information concerning the Disclosing Party (whether prepared by the Disclosing Party, its Representatives\nor\notherwise and irrespective of the form of communication) which is furnished to the Receiving Party or its Representatives now or in the future by or\non behalf of the Disclosing Party (collectively, the "Evaluation Material") and Discussion Information (as defined below) confidential in accordance\nwith the provisions of this letter agreement, and to take or refrain from taking certain other actions as hereinafter set forth. As used in this letter\nagreement, a party's "Representatives" shall include the directors, officers, employees, agents, affiliates (as such term is defined under the Securities\nExchange Act of 1934, as amended (the "1934 Act")), partners, advisors or representatives of such party and those of its subsidiaries, affiliates\nand/or divisions (including, without limitation, attorneys, accountants, consultants, bankers, financial advisors and any Representatives of the\nReceiving Party's advisors).\nThe term "Evaluation Material" shall be deemed to include any notes, analyses, compilations, studies, forecasts, interpretations or other\ndocuments prepared by the Receiving Party or its Representatives that derive from, contain, reflect or are based upon, in whole or in part, the\ninformation furnished to the Receiving Party or its Representatives pursuant hereto.\nJuly 1, 2005\nPage 2 of 8\nThe term "Evaluation Material" shall also be deemed to include any oral, written or visual information obtained by meeting Representatives of the\nDisclosing Party or touring any of its facilities. The term "Evaluation Material" does not include information which (i) is or becomes generally\navailable to the public other than as a result of a disclosure by the Receiving Party or its Representatives, (ii) was within your possession prior\nto\nits\nbeing furnished to you by or on behalf of the Company; provided that the source of such information was not known to be bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such\ninformation, (iii) was developed independently by the Receiving Party without use, directly or indirectly, of any Evaluation Material or (iv) becomes\navailable to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its Representatives, provided that such\nsource was not known to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the\nCompany or any other party with respect to such information.\nExcept as otherwise permitted hereunder, the Receiving Party hereby agrees that the Receiving Party and its Representatives shall\nuse\nthe Evaluation Material solely for the purpose of evaluating a Possible Transaction and for no other purpose, that the Evaluation Material and the\nDiscussion Information (as defined below) will be kept confidential and that the Receiving Party and its Representatives will not disclose any of\nthe\nEvaluation Material or the Discussion Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any\ndisclosure of the Evaluation Material or the Discussion Information to which the Disclosing Party gives its prior written consent, and (ii) the\nReceiving Party may make any disclosure of the Evaluation Material or the Discussion Information to such of its Representatives who need to know\nsuch information for the purpose of assisting the Receiving Party in its evaluation of a Possible Transaction, are provided with a copy of this letter\nagreement, agree to keep the Evaluation Material and the Discussion Information confidential and agree to be bound by the terms of this letter\nagreement to the same extent as if they were parties hereto. In any event, the Receiving Party agrees to undertake reasonable precautions to\nsafeguard and protect the confidentiality of the Evaluation Material and the Discussion Information, the Receiving Party hereby accepts\nresponsibility for any breach of this letter agreement by any of its Representatives (it being understood that such responsibility shall be in addition\nto\nand not by way of limitation of any right or remedy that the Company may have against such Representatives), and the Receiving Party agrees at its\nsole expense to take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or uses of the Evaluation\nMaterial and the Discussion Information. The Receiving Party understands that some Evaluation Material relating to customers and customer\ncontracts may, and Evaluation Material related to product pricing shall, if provided, be designated for review solely by the Receiving Party's outside\nadvisors or by those of the Receiving Party's employees whose responsibilities do not include contacting customers or potential customers of the\nReceiving Party's institutional pharmacy business or in the determination of product pricing for the Receiving Party's institutional pharmacy\nbusiness, and the Receiving Party agrees to, and to cause its Representatives to, abide by such designation.\nIn addition, the Receiving Party agrees that, without the prior written consent of the Disclosing Party, the Receiving Party and its\nRepresentatives will not disclose to any other person the fact that the Evaluation Material has been made available to the Receiving Party and\nJuly 1, 2005\nPage 3 of 8\nits Representatives, that discussions or negotiations are taking place concerning a Possible Transaction or any of the terms, conditions or other facts\nwith respect thereto, including the status thereof and the identity of the parties thereto (collectively, the "Discussion Information"); provided that, in\nthe\nevent\nthe Receiving Party becomes obligated to make public disclosure of Discussion Information pursuant to its obligations under 1934 Act or\nany other applicable law, rule or regulation, the Receiving Party shall, except as otherwise consented to by the Disclosing Party, limit such disclosure\nto the minimum disclosure so required and, without limiting the foregoing, to the extent the Receiving Party has any discretion with respect thereto,\nthe Receiving Party shall not disclose any possible terms or of any possible transaction involving the Disclosing Party. The term "person" as used in\nthis letter agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity. In the event\nthat the Receiving Party or any of its Representatives are requested or required (either by law, rule, regulation, or other applicable judicial or\ngovernmental order or by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand or other similar process) to disclose any of the Evaluation Material or Discussion Information, the Receiving Party shall provide the\nDisclosing Party with prompt written notice of any such request or requirement so that the Disclosing Party may in its sole discretion and expense\nseek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of\na\nprotective order or other remedy or the receipt of a waiver by the Disclosing Party, the Receiving Party or any of its Representatives are nonetheless,\nin the opinion of outside counsel, legally compelled to disclose Evaluation Material or Discussion Information to any tribunal, the Receiving Party\nor\nits Representatives may, without liability hereunder, disclose to such tribunal only that portion of the Evaluation Material or Discussion Information\nwhich such counsel advises the Receiving Party is legally required to be disclosed, provided that the Receiving Party uses reasonable efforts to\npreserve the confidentiality of the Evaluation Material and the Discussion Information, including, without limitation, by cooperating with the\nDisclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation\nMaterial and the Discussion Information by such tribunal at the Disclosing Party's expense.\nThe Receiving Party recognizes and acknowledges the competitive value of the Evaluation Material and the damage that could result to\nthe Disclosing Party if the Evaluation Material were used or disclosed except as authorized by this letter.\nIn the event that either party decides not to proceed with a Possible Transaction, such party will promptly inform the Company of that\ndecision. Upon the request of the Disclosing Party in its sole discretion and for any reason, the Receiving Party will as directed by the Disclosing\nParty promptly (and in no event later than five business days after the request therefor) deliver to the Disclosing Party or destroy all Evaluation\nMaterial and Discussion Information (and any copies thereof) and cause its Representatives to do the same and the Receiving Party shall provide the\nDisclosing Party with written confirmation of destruction; provided that outside counsel to the Receiving Party may retain one copy of the\nEvaluation Material in confidential restricted access files for use only in the event a dispute arises between the parties hereunder and only if\nreasonably related to such dispute. Notwithstanding the return or destruction of the Evaluation Material and Discussion Information, the Receiving\nParty and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.\nJuly 1, 2005\nPage 4 of 8\nThe Receiving Party understands, acknowledges and agrees that neither the Disclosing Party nor any of its Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or the Discussion Information. The\nReceiving Party agrees that neither the Disclosing Party nor any of its Representatives shall have any liability to the Receiving Party or to any of its\nRepresentatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those\nrepresentations or warranties which are made in a final definitive agreement regarding any transactions contemplated hereby, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nIn consideration of the Evaluation Material being furnished to the Receiving Party, the Receiving Party hereby agrees that, for a period\nof one year from the date hereof, neither the Receiving Party nor any of its Representatives will solicit to employ (i) any of the officers of the\nDisclosing Party or (ii) any of the employees of the Disclosing Party with whom the Receiving Party has contact or who are specifically identified to\nthe Receiving Party by the Disclosing party or any of its Representatives for purposes hereof during the period of the Receiving Party's investigation\nof the Disclosing Party, in either case without obtaining the prior written consent of the Disclosing Party; provided, however, that the Receiving\nParty may engage in general solicitations for employees in the ordinary course of business and consistent with past practice and that the Receiving\nParty may solicit or employ any employee of the Disclosing Party six months after such party's employment has been terminated by the Disclosing\nParty.\nThe Receiving Party acknowledges and agrees that it is aware (and that its Representatives are aware or, prior to receipt of any\nEvaluation Material or Discussion Information, will be advised by the Receiving Party) of the restrictions imposed by the United States federal\nsecurities laws on a person possessing material non-public information about a public company and that the Receiving Party and its Representatives\nwill comply with such laws.\nSubject to the following paragraph, you agree that, for a period of one year from the date of this letter agreement, unless specifically\ninvited in writing by the Company, neither you nor any of your Representatives will in any manner, directly or indirectly: (a) effect or seek, offer or\npropose (whether publicly or otherwise) to effect, or participate in, facilitate or encourage any other person to effect or seek, offer or propose\n(whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof), or rights or options\nto acquire any securities (or beneficial ownership thereof), or any assets, indebtedness or businesses of the Company or any of its subsidiaries;\nprovided that this paragraph shall not restrict your Representatives or any benefit plan that is maintained for your or your Representatives'\nemployees from acquiring up to an aggregate of two percent (2%) of the outstanding common stock of the Company solely for investment purposes\nor restrict you or your Representatives from acquiring assets from the Company or any of its subsidiaries in the ordinary course of business so long\nas,\nin either such case, such acquisition is not related to or in furtherance of any other activities by any other person that is restricted by any other\nprovision of this paragraph, (ii) any tender offer or exchange offer, merger or other business combination involving the Company, any of the\nsubsidiaries or assets of the Company or the subsidiaries constituting a significant portion of the\nJuly 1, 2005\nPage 5 of 8\nconsolidated assets of the Company and its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary\ntransaction with respect to the Company or any of its subsidiaries, or (iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules\nof\nthe\nSecurities and Exchange Commission) or consents to vote any voting securities of the Company, including soliciting consents or taking other\naction with respect to the calling of a special meeting of the Company's shareholders; (b) form, join or in any way participate in a "group" (as\ndefined under the 1934 Act) with respect to the Company; or (c) otherwise act, alone or in concert with others, to seek representation on or to control\nor influence the management, Board of Directors or policies of the Company or to obtain representation on the Board of Directors of the Company.\nYou also agree during such period not to request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision\nof this paragraph (including this sentence).\nThe preceding paragraph notwithstanding, (1) you will not be deemed to be in breach of either of clause (a)(i) or (a)(ii) of the preceding\nparagraph by virtue of the maintenance, amendment and/or extension by you or your affiliates of the Offer made by and referred to in the\nSupplement to the Offer to Purchase (the "Supplement") filed as an exhibit to Amendment No. 28 to the Tender Offer Statement on Schedule TO\nfiled by you and Nectarine Acquisition Corp. with the Securities and Exchange Commission on June 16, 2005) or the announcement,\ncommencement or maintenance by you or your affiliates of a new acquisition offer, whether by way of a tender or exchange offer, merger\nor\notherwise (a "New Offer"); provided that the terms of the Offer or the New Offer (including any extension or amendment thereof) shall in no event\n(A) provide for a per share consideration that is less than the Offer price in effect on the date of this letter agreement or (B) otherwise contain terms\nand conditions that are less favorable in any material respect to the Company's shareholders than the terms and conditions set forth in the\nSupplement (an Offer or New Offer made and/or maintained in good faith and meeting the terms of this proviso, a "Status Quo Offer"); (2) you will\nnot be deemed to be in breach of any other provision of the preceding paragraph by virtue of the taking of any action otherwise prohibited by such\nprovisions so long as any such action is taken during the time that such Status Quo Offer is pending and open; and (3) (A) if the Company\nhas\nentered into or enters into any confidentiality agreement in connection with providing any Evaluation Material to any other person, and such other\nconfidentiality agreement (including any amendments thereto) either (i) does not contain a standstill provision or (ii) contains less restrictive\nprovisions than those specified in the immediately preceding paragraph, then the provisions of the immediately preceding paragraph shall be deemed\nto be automatically modified without further action by either party so that the provisions set forth in the immediately preceding paragraph are no less\nfavorable to you than those applicable to such third party and (B) if the Company enters into a binding agreement with another person for a merger\nor business combination transaction as a result of which the Company's shareholders immediately prior to such transaction would own less than a\nmajority of the voting securities of the combined company following such acquisition or business combination, then the restrictions on you set forth\nin the immediately preceding paragraph shall be deemed to automatically terminate without further action by either party.\nDuring the course of the Receiving Party's evaluation, all inquiries and other communications are to be made directly to the financial\nadvisors for the Disclosing Party or employees or representatives of the Disclosing Party specified by the Disclosing Party. Accordingly, the\nReceiving Party agrees not to directly or indirectly contact or communicate\nJuly 1, 2005\nPage 6 of 8\nwith any officer, director, employee, agent, customer or creditor of the Disclosing Party concerning a Possible Transaction, or to seek any\ninformation in connection therewith from such person, without the prior consent of the Disclosing Party.\nEach party understands and agrees that no contract or agreement providing for any Possible Transaction shall be deemed to\nexist\nbetween the parties unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and until a final\ndefinitive agreement regarding a Possible Transaction has been executed and delivered, neither party will be under any legal obligation of any kind\nwhatsoever with respect to such a Possible Transaction by virtue of this letter agreement except for the matters specifically agreed to herein. Each\nparty further acknowledges and agrees that each party reserves the right, in its sole discretion, to reject any and all proposals made by the other party\nor\nany of its Representatives with regard to a Possible Transaction, and to terminate discussions and negotiations with the other party at any time and\nthat the Company is under no obligation to engage in any Possible Transaction of any nature with you. It is understood and agreed that no failure or\ndelay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\nIt is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by the\nReceiving Party or any of its Representatives and that the Disclosing Party shall be entitled to equitable relief, including, without limitation,\ninjunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach\nby the Receiving Party of this letter agreement but shall be in addition to all other remedies available at law or equity to the Disclosing Party.\nThe\nReceiving Party further agrees not to raise as a defense or objection to the request or granting of such relief that any breach of this agreement is or\nwould be compensable by an award of money damages and agree to waive any requirements for the securing or posting of any bond in connection\nwith such remedy.\nThis letter agreement is for the benefit of the Disclosing Party (and its respective subsidiaries and affiliates), and shall be governed by\nand construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within the State of\nNew York. Each party also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New\nYork for any actions, suits or proceedings arising out of or relating to this agreement and the transactions contemplated hereby (and each party agrees\nnot to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons,\nnotice or document by U.S. registered mail to such party's address set forth above shall be effective service of process for any action, suit or\nproceeding brought against the party in any such court). Each party hereby irrevocably and unconditionally waives any objection to the laying\nof\nvenue of any action, suit or proceeding arising out of this agreement or the transactions contemplated hereby in the courts of the State of New York,\nand hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding\nbrought in any such court has been brought in an inconvenient forum.\nJuly 1, 2005\nPage 7 of 8\nThis letter agreement contains the entire agreement between the parties regarding its subject matter and supersedes all prior agreements,\nunderstandings, arrangements and discussions between the parties regarding such subject matter.\nNo provision in this agreement can be waived or amended except by written consent of each of the parties, which consent shal\nspecifically refer to this paragraph (or such provision) and explicitly make such waiver or amendment.\nSTRICTLY CONFIDENTIAL\nThis letter agreement may be signed by facsimile and in one or more counterparts, each of which shall be deemed an original but all of\nwhich shall be deemed to constitute a single instrument.\nPlease confirm your agreement with the foregoing by having a duly authorized officer of your organization sign and return one copy of\nthis letter to the undersigned, whereupon this letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nNEIGHBORCARE, INC.\nBy:\n/S/ JOHN J. ARLOTTA\nName: John J. Arlotta\nTitle: Chairman, President and Chief Executive Officer\nCONFIRMED AND AGREED\nas of the date written above:\nOMNICARE, INC.\nNECTARINE ACQUISITION CORP.\nBy:\n/s/ CHERYL D. HODGES\nName: Cheryl D. Hodges\nTitle: Senior Vice President and Secretary	EX-99.(D)(1) 5 dex99d1.htm NON-DISCLOSURE AGREEMENT\nExhibit (d)(1)\nSTRICTLY CONFIDENTIAL\nNon-Disclosure Agreement\nJuly 1, 2005\nOmnicare, Inc.\nNectarine Acquisition Corp.\n100 East RiverCenter Boulevard\nCovington, Kentucky 41011\nAttn: Joel F. Gemunder, President and Chief Executive Officer\nDear Mr. Gemunder:\nIn connection with your consideration of a possible business combination transaction involving all or substantially all (a “Possible\nTransaction”) of the outstanding common stock of NeighborCare, Inc. (collectively with its businesses, subsidiaries and divisions, the “Company”),\nthe Company is prepared to make available to you certain information concerning the business, financial condition, operations, assets and liabilities\nof the Company. In connection with the Possible Transaction, which may involve stock or other securities issued by you, you are prepared to make\navailable to the Company certain information concerning you and your business, financial condition, operations, assets and liabilities. The party\ndisclosing information shall be referred to herein as the “Disclosing Party” and the party receiving information shall be referred to as the “Receiving\nParty.”\nAs a condition to each Receiving Party and their Representatives (as defined below) being furnished with such information, the\nReceiving Party agrees to treat any information concerning the Disclosing Party (whether prepared by the Disclosing Party, its Representatives or\notherwise and irrespective of the form of communication) which is furnished to the Receiving Party or its Representatives now or in the future by or\non behalf of the Disclosing Party (collectively, the “Evaluation Material”) and Discussion Information (as defined below) confidential in accordance\nwith the provisions of this letter agreement, and to take or refrain from taking certain other actions as hereinafter set forth. As used in this letter\nagreement, a party’s “Representatives” shall include the directors, officers, employees, agents, affiliates (as such term is defined under the Securities\nExchange Act of 1934, as amended (the “1934 Act”)), partners, advisors or representatives of such party and those of its subsidiaries, affiliates\nand/or divisions (including, without limitation, attorneys, accountants, consultants, bankers, financial advisors and any Representatives of the\nReceiving Party’s advisors).\nThe term “Evaluation Material” shall be deemed to include any notes, analyses, compilations, studies, forecasts, interpretations or other\ndocuments prepared by the Receiving Party or its Representatives that derive from, contain, reflect or are based upon, in whole or in part, the\ninformation furnished to the Receiving Party or its Representatives pursuant hereto.\nJuly 1, 2005\nPage2of8\nThe term “Evaluation Material” shall also be deemed to include any oral, written or visual information obtained by meeting Representatives of the\nDisclosing Party or touring any of its facilities. The term “Evaluation Material” does not include information which (i) is or becomes generally\navailable to the public other than as a result of a disclosure by the Receiving Party or its Representatives, (ii) was within your possession prior to its\nbeing furnished to you by or on behalf of the Company; provided that the source of such information was not known to be bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such\ninformation, (iii) was developed independently by the Receiving Party without use, directly or indirectly, of any Evaluation Material or (iv) becomes\navailable to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its Representatives, provided that such\nsource was not known to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the\nCompany or any other party with respect to such information.\nExcept as otherwise permitted hereunder, the Receiving Party hereby agrees that the Receiving Party and its Representatives shall use\nthe Evaluation Material solely for the purpose of evaluating a Possible Transaction and for no other purpose, that the Evaluation Material and the\nDiscussion Information (as defined below) will be kept confidential and that the Receiving Party and its Representatives will not disclose any of the\nEvaluation Material or the Discussion Information in any manner whatsoever; provided, however, that (i) the Receiving Party may make any\ndisclosure of the Evaluation Material or the Discussion Information to which the Disclosing Party gives its prior written consent, and (ii) the\nReceiving Party may make any disclosure of the Evaluation Material or the Discussion Information to such of its Representatives who need to know\nsuch information for the purpose of assisting the Receiving Party in its evaluation of a Possible Transaction, are provided with a copy of this letter\nagreement, agree to keep the Evaluation Material and the Discussion Information confidential and agree to be bound by the terms of this letter\nagreement to the same extent as if they were parties hereto. In any event, the Receiving Party agrees to undertake reasonable precautions to\nsafeguard and protect the confidentiality of the Evaluation Material and the Discussion Information, the Receiving Party hereby accepts\nresponsibility for any breach of this letter agreement by any of its Representatives (it being understood that such responsibility shall be in addition to\nand not by way of limitation of any right or remedy that the Company may have against such Representatives), and the Receiving Party agrees at its\nsole expense to take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or uses of the Evaluation\nMaterial and the Discussion Information. The Receiving Party understands that some Evaluation Material relating to customers and customer\ncontracts may, and Evaluation Material related to product pricing shall, if provided, be designated for review solely by the Receiving Party’s outside\nadvisors or by those of the Receiving Party’s employees whose responsibilities do not include contacting customers or potential customers of the\nReceiving Party’s institutional pharmacy business or in the determination of product pricing for the Receiving Party’s institutional pharmacy\nbusiness, and the Receiving Party agrees to, and to cause its Representatives to, abide by such designation.\nIn addition, the Receiving Party agrees that, without the prior written consent of the Disclosing Party, the Receiving Party and its\nRepresentatives will not disclose to any other person the fact that the Evaluation Material has been made available to the Receiving Party and\nJuly 1, 2005\nPage3of8\nits Representatives, that discussions or negotiations are taking place concerning a Possible Transaction or any of the terms, conditions or other facts\nwith respect thereto, including the status thereof and the identity of the parties thereto (collectively, the “Discussion Information”); provided that, in\nthe event the Receiving Party becomes obligated to make public disclosure of Discussion Information pursuant to its obligations under 1934 Act or\nany other applicable law, rule or regulation, the Receiving Party shall, except as otherwise consented to by the Disclosing Party, limit such disclosure\nto the minimum disclosure so required and, without limiting the foregoing, to the extent the Receiving Party has any discretion with respect thereto,\nthe Receiving Party shall not disclose any possible terms or of any possible transaction involving the Disclosing Party. The term “person” as used in\nthis letter agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity. In the event\nthat the Receiving Party or any of its Representatives are requested or required (either by law, rule, regulation, or other applicable judicial or\ngovernmental order or by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative\ndemand or other similar process) to disclose any of the Evaluation Material or Discussion Information, the Receiving Party shall provide the\nDisclosing Party with prompt written notice of any such request or requirement so that the Disclosing Party may in its sole discretion and expense\nseek a protective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement. If, in the absence of a\nprotective order or other remedy or the receipt of a waiver by the Disclosing Party, the Receiving Party or any of its Representatives are nonetheless,\nin the opinion of outside counsel, legally compelled to disclose Evaluation Material or Discussion Information to any tribunal, the Receiving Party or\nits Representatives may, without liability hereunder, disclose to such tribunal only that portion of the Evaluation Material or Discussion Information\nwhich such counsel advises the Receiving Party is legally required to be disclosed, provided that the Receiving Party uses reasonable efforts to\npreserve the confidentiality of the Evaluation Material and the Discussion Information, including, without limitation, by cooperating with the\nDisclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Evaluation\nMaterial and the Discussion Information by such tribunal at the Disclosing Party’s expense.\nThe Receiving Party recognizes and acknowledges the competitive value of the Evaluation Material and the damage that could result to\nthe Disclosing Party if the Evaluation Material were used or disclosed except as authorized by this letter.\nIn the event that either party decides not to proceed with a Possible Transaction, such party will promptly inform the Company of that\ndecision. Upon the request of the Disclosing Party in its sole discretion and for any reason, the Receiving Party will as directed by the Disclosing\nParty promptly (and in no event later than five business days after the request therefor) deliver to the Disclosing Party or destroy all Evaluation\nMaterial and Discussion Information (and any copies thereof) and cause its Representatives to do the same and the Receiving Party shall provide the\nDisclosing Party with written confirmation of destruction; provided that outside counsel to the Receiving Party may retain one copy of the\nEvaluation Material in confidential restricted access files for use only in the event a dispute arises between the parties hereunder and only if\nreasonably related to such dispute. Notwithstanding the return or destruction of the Evaluation Material and Discussion Information, the Receiving\nParty and its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.\nJuly 1, 2005\nPage4of8\nThe Receiving Party understands, acknowledges and agrees that neither the Disclosing Party nor any of its Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or the Discussion Information. The\nReceiving Party agrees that neither the Disclosing Party nor any of its Representatives shall have any liability to the Receiving Party or to any of its\nRepresentatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those\nrepresentations or warranties which are made in a final definitive agreement regarding any transactions contemplated hereby, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nIn consideration of the Evaluation Material being furnished to the Receiving Party, the Receiving Party hereby agrees that, for a period\nof one year from the date hereof, neither the Receiving Party nor any of its Representatives will solicit to employ (i) any of the officers of the\nDisclosing Party or (ii) any of the employees of the Disclosing Party with whom the Receiving Party has contact or who are specifically identified to\nthe Receiving Party by the Disclosing party or any of its Representatives for purposes hereof during the period of the Receiving Party’s investigation\nof the Disclosing Party, in either case without obtaining the prior written consent of the Disclosing Party; provided, however, that the Receiving\nParty may engage in general solicitations for employees in the ordinary course of business and consistent with past practice and that the Receiving\nParty may solicit or employ any employee of the Disclosing Party six months after such party’s employment has been terminated by the Disclosing\nParty.\nThe Receiving Party acknowledges and agrees that it is aware (and that its Representatives are aware or, prior to receipt of any\nEvaluation Material or Discussion Information, will be advised by the Receiving Party) of the restrictions imposed by the United States federal\nsecurities laws on a person possessing material non-public information about a public company and that the Receiving Party and its Representatives\nwill comply with such laws.\nSubject to the following paragraph, you agree that, for a period of one year from the date of this letter agreement, unless specifically\ninvited in writing by the Company, neither you nor any of your Representatives will in any manner, directly or indirectly: (a) effect or seek, offer or\npropose (whether publicly or otherwise) to effect, or participate in, facilitate or encourage any other person to effect or seek, offer or propose\n(whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial ownership thereof), or rights or options\nto acquire any securities (or beneficial ownership thereof), or any assets, indebtedness or businesses of the Company or any of its subsidiaries;\nprovided that this paragraph shall not restrict your Representatives or any benefit plan that is maintained for your or your Representatives’\nemployees from acquiring up to an aggregate of two percent (2%) of the outstanding common stock of the Company solely for investment purposes\nor restrict you or your Representatives from acquiring assets from the Company or any of its subsidiaries in the ordinary course of business so long\nas, in either such case, such acquisition is not related to or in furtherance of any other activities by any other person that is restricted by any other\nprovision of this paragraph, (ii) any tender offer or exchange offer, merger or other business combination involving the Company, any of the\nsubsidiaries or assets of the Company or the subsidiaries constituting a significant portion of the\nJuly 1, 2005\nPage5of8\nconsolidated assets of the Company and its subsidiaries, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary\ntransaction with respect to the Company or any of its subsidiaries, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of\nthe Securities and Exchange Commission) or consents to vote any voting securities of the Company, including soliciting consents or taking other\naction with respect to the calling of a special meeting of the Company’s shareholders; (b) form, join or in any way participate in a “group” (as\ndefined under the 1934 Act) with respect to the Company; or (c) otherwise act, alone or in concert with others, to seek representation on or to control\nor influence the management, Board of Directors or policies of the Company or to obtain representation on the Board of Directors of the Company.\nYou also agree during such period not to request the Company or any of its Representatives, directly or indirectly, to amend or waive any provision\nof this paragraph (including this sentence).\nThe preceding paragraph notwithstanding, (1) you will not be deemed to be in breach of either of clause (a)(i) or (a)(ii) of the preceding\nparagraph by virtue of the maintenance, amendment and/or extension by you or your affiliates of the Offer made by and referred to in the\nSupplement to the Offer to Purchase (the “Supplement”) filed as an exhibit to Amendment No. 28 to the Tender Offer Statement on Schedule TO\nfiled by you and Nectarine Acquisition Corp. with the Securities and Exchange Commission on June 16, 2005) or the announcement,\ncommencement or maintenance by you or your affiliates of a new acquisition offer, whether by way of a tender or exchange offer, merger or\notherwise (a “New Offer”); provided that the terms of the Offer or the New Offer (including any extension or amendment thereof) shall in no event\n(A) provide for a per share consideration that is less than the Offer price in effect on the date of this letter agreement or (B) otherwise contain terms\nand conditions that are less favorable in any material respect to the Company’s shareholders than the terms and conditions set forth in the\nSupplement (an Offer or New Offer made and/or maintained in good faith and meeting the terms of this proviso, a “Status Quo Offer”); (2) you will\nnot be deemed to be in breach of any other provision of the preceding paragraph by virtue of the taking of any action otherwise prohibited by such\nprovisions so long as any such action is taken during the time that such Status Quo Offer is pending and open; and (3) (A) if the Company has\nentered into or enters into any confidentiality agreement in connection with providing any Evaluation Material to any other person, and such other\nconfidentiality agreement (including any amendments thereto) either (i) does not contain a standstill provision or (ii) contains less restrictive\nprovisions than those specified in the immediately preceding paragraph, then the provisions of the immediately preceding paragraph shall be deemed\nto be automatically modified without further action by either party so that the provisions set forth in the immediately preceding paragraph are no less\nfavorable to you than those applicable to such third party and (B) if the Company enters into a binding agreement with another person for a merger\nor business combination transaction as a result of which the Company’s shareholders immediately prior to such transaction would own less than a\nmajority of the voting securities of the combined company following such acquisition or business combination, then the restrictions on you set forth\nin the immediately preceding paragraph shall be deemed to automatically terminate without further action by either party.\nDuring the course of the Receiving Party’s evaluation, all inquiries and other communications are to be made directly to the financial\nadvisors for the Disclosing Party or employees or representatives of the Disclosing Party specified by the Disclosing Party. Accordingly, the\nReceiving Party agrees not to directly or indirectly contact or communicate\nJuly 1, 2005\nPage6of8\nwith any officer, director, employee, agent, customer or creditor of the Disclosing Party concerning a Possible Transaction, or to seek any\ninformation in connection therewith from such person, without the prior consent of the Disclosing Party.\nEach party understands and agrees that no contract or agreement providing for any Possible Transaction shall be deemed to exist\nbetween the parties unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and until a final\ndefinitive agreement regarding a Possible Transaction has been executed and delivered, neither party will be under any legal obligation of any kind\nwhatsoever with respect to such a Possible Transaction by virtue of this letter agreement except for the matters specifically agreed to herein. Each\nparty further acknowledges and agrees that each party reserves the right, in its sole discretion, to reject any and all proposals made by the other party\nor any of its Representatives with regard to a Possible Transaction, and to terminate discussions and negotiations with the other party at any time and\nthat the Company is under no obligation to engage in any Possible Transaction of any nature with you. It is understood and agreed that no failure or\ndelay by either party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\nIt is further understood and agreed that money damages would not be a sufficient remedy for any breach of this letter agreement by the\nReceiving Party or any of its Representatives and that the Disclosing Party shall be entitled to equitable relief, including, without limitation,\ninjunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach\nby the Receiving Party of this letter agreement but shall be in addition to all other remedies available at law or equity to the Disclosing Party. The\nReceiving Party further agrees not to raise as a defense or objection to the request or granting of such relief that any breach of this agreement is or\nwould be compensable by an award of money damages and agree to waive any requirements for the securing or posting of any bond in connection\nwith such remedy.\nThis letter agreement is for the benefit of the Disclosing Party (and its respective subsidiaries and affiliates), and shall be governed by\nand construed in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within the State of\nNew York. Each party also hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New\nYork for any actions, suits or proceedings arising out of or relating to this agreement and the transactions contemplated hereby (and each party agrees\nnot to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process, summons,\nnotice or document by U.S. registered mail to such party’s address set forth above shall be effective service of process for any action, suit or\nproceeding brought against the party in any such court). Each party hereby irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of this agreement or the transactions contemplated hereby in the courts of the State of New York,\nand hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding\nbrought in any such court has been brought in an inconvenient forum.\nJuly 1, 2005\nPage7of8\nThis letter agreement contains the entire agreement between the parties regarding its subject matter and supersedes all prior agreements,\nunderstandings, arrangements and discussions between the parties regarding such subject matter.\nNo provision in this agreement can be waived or amended except by written consent of each of the parties, which consent shall\nspecifically refer to this paragraph (or such provision) and explicitly make such waiver or amendment.\nSTRICTLY CONFIDENTIAL\nThis letter agreement may be signed by facsimile and in one or more counterparts, each of which shall be deemed an original but all of\nwhich shall be deemed to constitute a single instrument.\nPlease confirm your agreement with the foregoing by having a duly authorized officer of your organization sign and return one copy of\nthis letter to the undersigned, whereupon this letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nNEIGHBORCARE, INC.\nBy: /S/ JOHN J. ARLOTTA\nName: John J. Arlotta\nTitle: Chairman, President and Chief Executive Officer\nCONFIRMED AND AGREED\nas of the date written above:\nOMNICARE, INC.\nNECTARINE ACQUISITION CORP.\nBy: /S/ CHERYL D. HODGES\nName: Cheryl D. Hodges\nTitle: Senior Vice President and Secretary
+86e9c90fa3986691fcb140266f514c7d.pdf	effective_date jurisdiction party term	EX-10.10 10 d191007dex1010.htm FORM OF CONFIDENTIALITY AND NONINTERFERENCE AGREEMENT\nExhibit 10.10\nFORM OF CONFIDENTIALITY AND NONINTERFERENCE AGREEMENT\nIn recognition of the critical role that you play as an executive with Delphi Automotive LLP and/or one of its direct or indirect subsidiaries or\naffiliates (collectively, “Delphi” or the “Company”), and as consideration for any and all awards to be granted to you under the Delphi Automotive\nLLP 2010 Management Value Creation Plan (“Value Creation Plan”) and/or for other good and valuable consideration, you (“Employee” or “you”)\nagree to the terms and conditions of this Confidentiality and Noninterference Agreement (this “Agreement”) as follows:\n1. Covenants.\n(a) You acknowledge and agree that: (i) as an executive, you have been and will be exposed to some of the most sensitive and\nconfidential information possessed by or relating to Delphi, including strategic plans, marketing plans, information regarding long-term business\nopportunities and information regarding the development status of specific Company products, as well as extensive assessments of the competitive\nlandscape of the industries in which the Company competes; and (ii) this information represents the product of the Company’s substantial investment\nin research and innovation, is critical to the Company’s competitive success, is disclosed to the Company’s executives only on a strictly confidential\nbasis, and is not made accessible to the public or to the Company’s competitors.\n(b) You further acknowledge and agree that: (i) the business in which the Company is engaged is intensely competitive and that your\nposition and employment by Delphi has required, and will continue to require, that you have access to, and knowledge of, valuable and sensitive\ninformation relating to Delphi and its business including, but not limited to, information relating to its products and product development, pricing,\nengineering and design specifications, trade secrets, customers, suppliers, unique and/or proprietary software and source code, and marketing plans\n(collectively, “Confidential Information”); (ii) the direct or indirect disclosure of such Confidential Information would place the Company at a\nserious competitive disadvantage and would do serious damage, financial and otherwise, to the business of the Company and may constitute\nmisappropriation and/or improper use of trade secrets in violation of applicable laws; (iii) you have been and will be given access to, and have been\nor will be able to develop relationships with, customers, suppliers and employees of the Company at the time and expense of the Company; and\n(iv) by your training, experience and expertise, your services to the Company are, and will continue to be, extraordinary, special and unique.\n(c) You acknowledge and agree that you will keep in strict confidence, and will not, directly or indirectly, at any time during or after your\nemployment with Delphi, disclose, furnish, disseminate, make available or use Confidential Information of the Company or its customers or\nsuppliers, without limitation as to when or how you may have acquired such information, other than in the proper performance of your duties to\nDelphi, unless and until such Confidential Information is or shall become general public knowledge through no fault of yours. You specifically\nacknowledge that all such information, whether written or oral, or in electronic format, or maintained in your mind or memory and whether compiled\nby the Company, and/or you, derives independent economic value from not being readily known to or ascertainable by\nproper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been made by the Company to\nmaintain the secrecy of such information, that such information is the sole property of the Company and that any retention and use of such\ninformation by you during or after your employment with Delphi (except in the course of performing your duties and obligations as an executive)\nshall constitute a misappropriation of the Company’s trade secrets. In the event that you are required by law to disclose any Confidential\nInformation, you agree to give Delphi prompt advance written notice thereof and to provide Delphi with reasonable assistance in obtaining an order\nto protect the Confidential Information from public disclosure.\n(d) You acknowledge and agree that: (i) the Business (as defined below) is intensely competitive and conducted by Delphi throughout\nthe world; and (ii) reasonable limits on your ability to engage in activities that are competitive with Delphi are warranted in order to, among other\nthings, reasonably protect the Confidential Information of Delphi and Delphi’s reputation, customer relationships, goodwill and overall status in the\nmarketplace for which Delphi has invested substantial time and resources. You acknowledge and agree that:\n(i) During your employment and for twelve (12) months after the termination of your employment by you or by Delphi for any\nreason, you will not directly or indirectly engage in Competition (as defined below) with Delphi; or\n(ii) During your employment and for twenty-four (24) months after the termination of your employment by you or by Delphi for\nany reason, you will not directly or indirectly:\n(1) Solicit for your benefit or the benefit of any other person or entity, business of the same or of a similar nature to the\nBusiness (as defined below) from any customer that is doing business with Delphi, provided that after termination of your employment,\nthis restriction shall not apply to any entity that was not a customer of Delphi during the six (6) month period immediately preceding the\ntermination of your employment;\n(2) Solicit for your benefit or the benefit of any other person or entity from any known potential customer of Delphi, business\nof the same or of a similar nature to the Business that has been the subject of a known written or oral bid, offer or proposal by Delphi, or\nof substantial preparation with a view to making such a bid, proposal or offer, provided that after termination of your employment, this\nrestriction shall only apply to a potential customer if the bid, proposal or offer, or substantial preparation for making a bid, proposal or\noffer occurred during the six (6) month period immediately preceding the termination of your employment; or\n(3) Otherwise interfere with the Business of Delphi, including, but not limited to, with respect to any relationship or\nagreement between Delphi and any supplier to Delphi during the period of your employment, provided that after termination of your\nemployment, this restriction shall only apply to relationships or agreements in effect during the six (6) month period immediately\npreceding the termination of your employment; or\n2\n(4) Solicit for your benefit or the benefit of any other person or entity, the employment or services of, or hire or engage, any\nindividual who was known to be employed or engaged by Delphi during the period of your employment, provided that after the\ntermination of your employment, this restriction shall only apply to individuals who were so employed or engaged during the six\n(6) month period immediately preceding the termination of your employment, and provided further, that this restriction will not prohibit\nsolicitation or hiring of any individual whose employment was involuntarily terminated by Delphi, provided at the time of such\nsolicitation or hiring you are not engaged in Competition with Delphi and no solicitation of such individual occurred while he or she was\nemployed by Delphi.\n2. Definitions.\n(a) For purposes of this Agreement, “Competition” by you shall mean your engaging in, or otherwise directly or indirectly being\nemployed by or acting as a consultant or lender to, or being a director, officer, employee, principal, agent, stockholder, member, owner or partner of,\nor permitting your name to be used in connection with the activities of any other business or organization anywhere in the world that competes,\ndirectly or indirectly, with Delphi in the Business; provided, however, it shall not be a violation of this Agreement for you to become the registered\nor beneficial owner of up to five percent (5%) of any class of stock of any entity in Competition with Delphi that is publicly traded on a recognized\ndomestic or foreign securities exchange, provided that you do not otherwise participate in the business of such corporation.\n(b) For purposes of this Agreement, “Business” means the creation, development, manufacture, sale, promotion and distribution of\nvehicle electronics, transportation components, integrated systems and modules, electronic technology and other products and services which Delphi\nengages in, or is preparing to become engaged in, at the time of your termination.\n(c) For purposes of this Agreement, the term “Cause” shall have the meaning ascribed to such term in the Value Creation Plan.\n3. Acknowledgements. You acknowledge that the Company would suffer irreparable harm if you fail to comply with Paragraph 1, and that the\nCompany would be entitled to any appropriate relief, including money damages, equitable relief and attorneys’ fees. You further acknowledge that\nenforcement of the covenants in Paragraph 1 is necessary to ensure the protection and continuity of the business and goodwill of the Company and\nthat, due to the proprietary nature of the business of the Company, the restrictions set forth in Paragraph 1 are reasonable as to geography, duration\nand scope.\n3\n4. Value Creation Plan Awards. For purposes of the Value Creation Plan and any awards thereunder (collectively, the “Value Creation\nAwards”), if you engage in conduct in breach of this Agreement prior to or at any time within the one (1) year period after any you receive a\npayment pursuant to any Value Creation Award, then such conduct shall be deemed to be a breach of the terms of such Value Creation Award,\njustifying cancellation or rescission of any such Value Creation Award, as applicable.\n5. Injunctive Relief. You agree that the Company would suffer irreparable harm if you were to breach, or threaten to breach, any provision of\nthis Agreement and that the Company would by reason of such breach, or threatened breach, be entitled to injunctive relief in a court of appropriate\njurisdiction, without the need to post any bond, and you further consent and stipulate to the entry of such injunctive relief in such a court prohibiting\nyou from breaching this Agreement. This Paragraph 5 shall not, however, diminish the right of the Company to claim and recover money damages in\naddition to injunctive relief.\n6. Severability. In the event that any one or more of the provisions of this Agreement shall be held to be invalid or unenforceable, the validity\nand enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Moreover, if any one or more of the provisions\ncontained in this Agreement shall be held to be excessively broad as to duration, activity or subject, such provisions shall be construed by limiting\nand reducing them so as to be enforceable to the maximum extent allowed by applicable law. Furthermore, a determination in any jurisdiction that\nthis Agreement, in whole or in part, is invalid or unenforceable shall not in any way affect or impair the validity or enforceability of this Agreement\nin any other jurisdiction.\n7. Waiver. The failure of Delphi to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the same\nor of the right of Delphi to enforce the same. Waiver by Delphi of any breach or default by you (or by any other employee or former employee of\nDelphi) of any term or provision of this Agreement (or any similar agreement between Delphi and you or any other employee or former employee of\nDelphi) shall not operate as a waiver of any other breach or default.\n8. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon Delphi, any successor organization which shall\nsucceed to Delphi by acquisition, merger, consolidation or operation of law, or by acquisition of assets of Delphi and any assigns. You may not\nassign your obligations under this Agreement.\n9. Disclosure of Existence of Covenants. You agree that while employed by Delphi and for twenty-four (24) months thereafter, you will\ncommunicate the contents of this Agreement to any person, firm, association, partnership, corporation or other entity which you intend to be\nemployed by, associated with or represent.\n10. Notice to Delphi of Prospective Position. You agree that you will promptly notify the Vice President and General Counsel and the Vice\nPresident of Human Resources of Delphi if, at any time during your employment or within twenty four (24) months following the termination of\nyour employment with Delphi, you accept a position to be employed by, associated with or represent any person, firm, association, partnership,\ncorporation or other entity. You further agree that you will provide Delphi with such information as Delphi may request about your new position to\nallow Delphi to determine whether such position and duties would likely lead to a violation of this Agreement (except that you need not provide any\ninformation that would constitute confidential or trade secret information).\n4\n11. No Oral Modification. This Agreement may not be changed orally, but may be changed only in a writing signed by the Employee and a\nduly authorized representative of Delphi.\n12. Entire Agreement. Although this Agreement sets forth the entire understanding between you and Delphi concerning its subject matter, this\nAgreement does not impair, diminish, restrict or waive any other restrictive covenant, nondisclosure obligation or confidentiality obligation you may\nhave to Delphi under any other agreement, policy, plan or program of Delphi. You and Delphi represent that, in executing this Agreement, the\nEmployee and Delphi have not relied upon any representations or statements made, other than those set forth herein, with regard to the subject\nmatter, basis or effect of this Agreement.\n13. Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of\nDelaware, without regard to its conflicts of law principles. The parties hereby irrevocably consent and submit to the jurisdiction of the federal and\nstate courts located within the state of Michigan in any matter arising out of or in connection with, this Agreement.\n14. Rules of Professional Conduct. Nothing in this Agreement shall be deemed to modify, limit or waive Participant’s professional duties and\nresponsibilities under the Michigan Rules of Professional Conduct, arising from Participant’s service as a lawyer for the Company, its subsidiaries\nand affiliates, including, but not limited to, duties and responsibilities relating to maintaining client confidentiality, and limitations on the use of\nclient information, which Participant agrees apply to all non-public information that is disclosed to Participant in the course of participant’s\nemployment by the Company as a lawyer. Further, nothing in this Agreement shall construed to serve as a restriction on the right of the Participant to\npractice law after termination of his or her employment as set forth in such Rules of Professional Conduct, including by accepting employment as a\nlawyer at a competing company.\nI,\n, have executed this Confidentiality and Noninterference Agreement on the respective date set forth below:\nDate:\n(Signature)\n(Name)\n5	EX-10.10 10 d191007dex1010.htm FORM OF CONFIDENTIALITY AND NONINTERFERENCE AGREEMENT\nExhibit 10.10\nFORM OF CONFIDENTIALITY AND NONINTERFERENCE AGREEMENT\nIn recognition of the critical role that you play as an executive with Delphi Automotive LLP and/or one of its direct or indirect subsidiaries or\naffiliates (collectively, “Delphi” or the “Company”), and as consideration for any and all awards to be granted to you under the Delphi Automotive\nLLP 2010 Management Value Creation Plan (“Value Creation Plan”) and/or for other good and valuable consideration, you (“Employee” or “you”)\nagree to the terms and conditions of this Confidentiality and Noninterference Agreement (this “Agreement”) as follows:\n1. Covenants.\n(a) You acknowledge and agree that: (i) as an executive, you have been and will be exposed to some of the most sensitive and\nconfidential information possessed by or relating to Delphi, including strategic plans, marketing plans, information regarding long-term business\nopportunities and information regarding the development status of specific Company products, as well as extensive assessments of the competitive\nlandscape of the industries in which the Company competes; and (ii) this information represents the product of the Company’s substantial investment\nin research and innovation, is critical to the Company’s competitive success, is disclosed to the Company’s executives only on a strictly confidential\nbasis, and is not made accessible to the public or to the Company’s competitors.\n(b) You further acknowledge and agree that: (i) the business in which the Company is engaged is intensely competitive and that your\nposition and employment by Delphi has required, and will continue to require, that you have access to, and knowledge of, valuable and sensitive\ninformation relating to Delphi and its business including, but not limited to, information relating to its products and product development, pricing,\nengineering and design specifications, trade secrets, customers, suppliers, unique and/or proprietary software and source code, and marketing plans\n(collectively, “Confidential Information™); (ii) the direct or indirect disclosure of such Confidential Information would place the Company at a\nserious competitive disadvantage and would do serious damage, financial and otherwise, to the business of the Company and may constitute\nmisappropriation and/or improper use of trade secrets in violation of applicable laws; (iii) you have been and will be given access to, and have been\nor will be able to develop relationships with, customers, suppliers and employees of the Company at the time and expense of the Company; and\n(iv) by your training, experience and expertise, your services to the Company are, and will continue to be, extraordinary, special and unique.\n(c) You acknowledge and agree that you will keep in strict confidence, and will not, directly or indirectly, at any time during or after your\nemployment with Delphi, disclose, furnish, disseminate, make available or use Confidential Information of the Company or its customers or\nsuppliers, without limitation as to when or how you may have acquired such information, other than in the proper performance of your duties to\nDelphi, unless and until such Confidential Information is or shall become general public knowledge through no fault of yours. You specifically\nacknowledge that all such information, whether written or oral, or in electronic format, or maintained in your mind or memory and whether compiled\nby the Company, and/or you, derives independent economic value from not being readily known to or ascertainable by\nproper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been made by the Company to\nmaintain the secrecy of such information, that such information is the sole property of the Company and that any retention and use of such\ninformation by you during or after your employment with Delphi (except in the course of performing your duties and obligations as an executive)\nshall constitute a misappropriation of the Company’s trade secrets. In the event that you are required by law to disclose any Confidential\nInformation, you agree to give Delphi prompt advance written notice thereof and to provide Delphi with reasonable assistance in obtaining an order\nto protect the Confidential Information from public disclosure.\n(d) You acknowledge and agree that: (i) the Business (as defined below) is intensely competitive and conducted by Delphi throughout\nthe world; and (ii) reasonable limits on your ability to engage in activities that are competitive with Delphi are warranted in order to, among other\nthings, reasonably protect the Confidential Information of Delphi and Delphi’s reputation, customer relationships, goodwill and overall status in the\nmarketplace for which Delphi has invested substantial time and resources. You acknowledge and agree that:\n(i) During your employment and for twelve (12) months after the termination of your employment by you or by Delphi for any\nreason, you will not directly or indirectly engage in Competition (as defined below) with Delphi; or\n(ii) During your employment and for twenty-four (24) months after the termination of your employment by you or by Delphi for\nany reason, you will not directly or indirectly:\n(1) Solicit for your benefit or the benefit of any other person or entity, business of the same or of a similar nature to the\nBusiness (as defined below) from any customer that is doing business with Delphi, provided that after termination of your employment,\nthis restriction shall not apply to any entity that was not a customer of Delphi during the six (6) month period immediately preceding the\ntermination of your employment;\n(2) Solicit for your benefit or the benefit of any other person or entity from any known potential customer of Delphi, business\nof the same or of a similar nature to the Business that has been the subject of a known written or oral bid, offer or proposal by Delphi, or\nof substantial preparation with a view to making such a bid, proposal or offer, provided that after termination of your employment, this\nrestriction shall only apply to a potential customer if the bid, proposal or offer, or substantial preparation for making a bid, proposal or\noffer occurred during the six (6) month period immediately preceding the termination of your employment; or\n(3) Otherwise interfere with the Business of Delphi, including, but not limited to, with respect to any relationship or\nagreement between Delphi and any supplier to Delphi during the period of your employment, provided that after termination of your\nemployment, this restriction shall only apply to relationships or agreements in effect during the six (6) month period immediately\npreceding the termination of your employment; or\n(4) Solicit for your benefit or the benefit of any other person or entity, the employment or services of, or hire or engage, any\nindividual who was known to be employed or engaged by Delphi during the period of your employment, provided that after the\ntermination of your employment, this restriction shall only apply to individuals who were so employed or engaged during the six\n(6) month period immediately preceding the termination of your employment, and provided further, that this restriction will not prohibit\nsolicitation or hiring of any individual whose employment was involuntarily terminated by Delphi, provided at the time of such\nsolicitation or hiring you are not engaged in Competition with Delphi and no solicitation of such individual occurred while he or she was\nemployed by Delphi.\n2. Definitions.\n(a) For purposes of this Agreement, “Competition” by you shall mean your engaging in, or otherwise directly or indirectly being\nemployed by or acting as a consultant or lender to, or being a director, officer, employee, principal, agent, stockholder, member, owner or partner of,\nor permitting your name to be used in connection with the activities of any other business or organization anywhere in the world that competes,\ndirectly or indirectly, with Delphi in the Business; provided, however, it shall not be a violation of this Agreement for you to become the registered\nor beneficial owner of up to five percent (5%) of any class of stock of any entity in Competition with Delphi that is publicly traded on a recognized\ndomestic or foreign securities exchange, provided that you do not otherwise participate in the business of such corporation.\n(b) For purposes of this Agreement, “Business” means the creation, development, manufacture, sale, promotion and distribution of\nvehicle electronics, transportation components, integrated systems and modules, electronic technology and other products and services which Delphi\nengages in, or is preparing to become engaged in, at the time of your termination.\n(c) For purposes of this Agreement, the term “Cause” shall have the meaning ascribed to such term in the Value Creation Plan.\n \n3. Acknowledgements. You acknowledge that the Company would suffer irreparable harm if you fail to comply with Paragraph 1, and that the\nCompany would be entitled to any appropriate relief, including money damages, equitable relief and attorneys’ fees. You further acknowledge that\nenforcement of the covenants in Paragraph 1 is necessary to ensure the protection and continuity of the business and goodwill of the Company and\nthat, due to the proprietary nature of the business of the Company, the restrictions set forth in Paragraph 1 are reasonable as to geography, duration\nand scope.\n4. Value Creation Plan Awards. For purposes of the Value Creation Plan and any awards thereunder (collectively, the “Value Creation\nAwards”), if you engage in conduct in breach of this Agreement prior to or at any time within the one (1) year period after any you receive a\npayment pursuant to any Value Creation Award, then such conduct shall be deemed to be a breach of the terms of such Value Creation Award,\njustifying cancellation or rescission of any such Value Creation Award, as applicable.\n5. Injunctive Relief. You agree that the Company would suffer irreparable harm if you were to breach, or threaten to breach, any provision of\nthis Agreement and that the Company would by reason of such breach, or threatened breach, be entitled to injunctive relief in a court of appropriate\njurisdiction, without the need to post any bond, and you further consent and stipulate to the entry of such injunctive relief in such a court prohibiting\nyou from breaching this Agreement. This Paragraph 5 shall not, however, diminish the right of the Company to claim and recover money damages in\naddition to injunctive relief.\n6. Severability. In the event that any one or more of the provisions of this Agreement shall be held to be invalid or unenforceable, the validity\nand enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Moreover, if any one or more of the provisions\ncontained in this Agreement shall be held to be excessively broad as to duration, activity or subject, such provisions shall be construed by limiting\nand reducing them so as to be enforceable to the maximum extent allowed by applicable law. Furthermore, a determination in any jurisdiction that\nthis Agreement, in whole or in part, is invalid or unenforceable shall not in any way affect or impair the validity or enforceability of this Agreement\nin any other jurisdiction.\n7. Waiver. The failure of Delphi to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the same\nor of the right of Delphi to enforce the same. Waiver by Delphi of any breach or default by you (or by any other employee or former employee of\nDelphi) of any term or provision of this Agreement (or any similar agreement between Delphi and you or any other employee or former employee of\nDelphi) shall not operate as a waiver of any other breach or default.\n8. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon Delphi, any successor organization which shall\nsucceed to Delphi by acquisition, merger, consolidation or operation of law, or by acquisition of assets of Delphi and any assigns. You may not\nassign your obligations under this Agreement.\n9. Disclosure of Existence of Covenants. You agree that while employed by Delphi and for twenty-four (24) months thereafter, you will\ncommunicate the contents of this Agreement to any person, firm, association, partnership, corporation or other entity which you intend to be\nemployed by, associated with or represent.\n10. Notice to Delphi of Prospective Position. You agree that you will promptly notify the Vice President and General Counsel and the Vice\nPresident of Human Resources of Delphi if, at any time during your employment or within twenty four (24) months following the termination of\nyour employment with Delphi, you accept a position to be employed by, associated with or represent any person, firm, association, partnership,\ncorporation or other entity. You further agree that you will provide Delphi with such information as Delphi may request about your new position to\nallow Delphi to determine whether such position and duties would likely lead to a violation of this Agreement (except that you need not provide any\ninformation that would constitute confidential or trade secret information).\n4\n11. No Oral Modification. This Agreement may not be changed orally, but may be changed only in a writing signed by the Employee and a\nduly authorized representative of Delphi.\n12. Entire Agreement. Although this Agreement sets forth the entire understanding between you and Delphi concerning its subject matter, this\nAgreement does not impair, diminish, restrict or waive any other restrictive covenant, nondisclosure obligation or confidentiality obligation you may\nhave to Delphi under any other agreement, policy, plan or program of Delphi. You and Delphi represent that, in executing this Agreement, the\nEmployee and Delphi have not relied upon any representations or statements made, other than those set forth herein, with regard to the subject\nmatter, basis or effect of this Agreement.\n13. Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of\nDelaware, without regard to its conflicts of law principles. The parties hereby irrevocably consent and submit to the jurisdiction of the federal and\nstate courts located within the state of Michigan in any matter arising out of or in connection with, this Agreement.\n14. Rules of Professional Conduct. Nothing in this Agreement shall be deemed to modify, limit or waive Participant’s professional duties and\nresponsibilities under the Michigan Rules of Professional Conduct, arising from Participant’s service as a lawyer for the Company, its subsidiaries\nand affiliates, including, but not limited to, duties and responsibilities relating to maintaining client confidentiality, and limitations on the use of\nclient information, which Participant agrees apply to all non-public information that is disclosed to Participant in the course of participant’s\nemployment by the Company as a lawyer. Further, nothing in this Agreement shall construed to serve as a restriction on the right of the Participant to\npractice law after termination of his or her employment as set forth in such Rules of Professional Conduct, including by accepting employment as a\nlawyer at a competing company.\nI , have executed this Confidentiality and Noninterference Agreement on the respective date set forth below:\nDate:\n(Signature)\n(Name)	EX-10.10 10 d191007dex1010.htm FORM OF CONFIDENTIALITY AND NONINTERFERENCE AGREEMENT\nExhibit 10.10\nFORM OF CONFIDENTIALITY AND NONINTERFERENCE AGREEMENT\nIn recognition of the critical role that you play as an executive with Delphi Automotive LLP and/or one of its direct or indirect subsidiaries or\naffiliates (collectively, "Delphi" or the "Company."), and as consideration for any and all awards to be granted to you under the Delphi Automotive\nLLP 2010 Management Value Creation Plan ("Value Creation Plan") and/or for other good and valuable consideration, you ("Employee" or "you")\nagree to the terms and conditions of this Confidentiality and Noninterference Agreement (this "Agreement") as follows:\n1. Covenants.\n(a) You acknowledge and agree that: (i) as an executive, you have been and will be exposed to some of the most sensitive and\nconfidential information possessed by or relating to Delphi, including strategic plans, marketing plans, information regarding long-term business\nopportunities and information regarding the development status of specific Company products, as well as extensive assessments of the competitive\nlandscape of the industries in which the Company competes; and (ii) this information represents the product of the Company's substantial investment\nin research and innovation, is critical to the Company's competitive success, is disclosed to the Company's executives only on a strictly confidential\nbasis, and is not made accessible to the public or to the Company's competitors.\n(b) You further acknowledge and agree that: (i) the business in which the Company is engaged is intensely competitive and that your\nposition and employment by Delphi has required, and will continue to require, that you have access to, and knowledge of, valuable and sensitive\ninformation relating to Delphi and its business including, but not limited to, information relating to its products and product development, pricing,\nengineering and design specifications, trade secrets, customers, suppliers, unique and/or proprietary software and source code, and marketing plans\n(collectively, "Confidential Information"); (ii) the direct or indirect disclosure of such Confidential Information would place the Company at a\nserious competitive disadvantage and would do serious damage, financial and otherwise, to the business of the Company and may constitute\nmisappropriation and/or improper use of trade secrets in violation of applicable laws; (iii) you have been and will be given access to, and have been\nor\nwill be able to develop relationships with, customers, suppliers and employees of the Company at the time and expense of the Company; and\n(iv) by your training, experience and expertise, your services to the Company are, and will continue to be, extraordinary, special and unique\n(c) You acknowledge and agree that you will keep in strict confidence, and will not, directly or indirectly, at any time during or after your\nemployment with Delphi, disclose, furnish, disseminate, make available or use Confidential Information of the Company or its customers or\nsuppliers, without limitation as to when or how you may have acquired such information, other than in the proper performance of your duties\nto\nDelphi, unless and until such Confidentia Information is or shall become general public knowledge through no fault of yours. You specifically\nacknowledge that all such information, whether written or oral, or in electronic format, or maintained in your mind or memory and whether compiled\nby the Company, and/or you, derives independent economic value from not being readily known to or ascertainable by\nproper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been made by the Company to\nmaintain the secrecy of such information, that such information is the sole property of the Company and that any retention and use of such\ninformation by you during or after your employment with Delphi (except in the course of performing your duties and obligations as an executive)\nshall constitute a misappropriation of the Company's trade secrets. In the event that you are required by law to disclose any Confidential\nInformation, you agree to give Delphi prompt advance written notice thereof and to provide Delphi with reasonable assistance in obtaining an order\nto protect the Confidential Information from public disclosure.\n(d) You acknowledge and agree that: (i) the Business (as defined below) is intensely competitive and conducted by Delphi throughout\nthe world; and (ii) reasonable limits on your ability to engage in activities that are competitive with Delphi are warranted in order to, among other\nthings, reasonably protect the Confidential Information of Delphi and Delphi's reputation, customer relationships, goodwill and overall status in the\nmarketplace for which Delphi has invested substantial time and resources. You acknowledge and agree that:\n(i) During your employment and for twelve (12) months after the termination of your employment by you or by Delphi for any\nreason, you will not directly or indirectly engage in Competition (as defined below) with Delphi; or\n(ii) During your employment and for twenty-four (24) months after the termination of your employment by you or by Delphi for\nany reason, you will not directly or indirectly:\n(1) Solicit for your benefit or the benefit of any other person or entity, business of the same or of a similar nature to the\nBusiness (as defined below) from any customer that is doing business with Delphi, provided that after termination of your employment,\nthis restriction shall not apply to any entity that was not a customer of Delphi during the six (6) month period immediately preceding the\ntermination of your employment;\n(2) Solicit for your benefit or the benefit of any other person or entity from any known potential customer of Delphi, business\nof the same or of a similar nature to the Business that has been the subject of a known written or oral bid, offer or proposal by Delphi, or\nof substantial preparation with a view to making such a bid, proposal or offer, provided that after termination of your employment, this\nrestriction shall only apply to a potential customer if the bid, proposal or offer, or substantial preparation for making a bid, proposal\nor\noffer occurred during the six (6) month period immediately preceding the termination of your employment; or\n(3) Otherwise interfere with the Business of Delphi, including, but not limited to, with respect to any relationship or\nagreement between Delphi and any supplier to Delphi during the period of your employment, provided that after termination of your\nemployment, this restriction shall only apply to relationships or agreements in effect during the six (6) month period immediately\npreceding the termination of your employment; or\n2\n(4) Solicit for your benefit or the benefit of any other person or entity, the employment or services of, or hire or engage, any\nindividual who was known to be employed or engaged by Delphi during the period of your employment, provided that after the\ntermination of your employment, this restriction shall only apply to individuals who were so employed or engaged during the six\n(6) month period immediately preceding the termination of your employment, and provided further, that this restriction will not prohibit\nsolicitation or hiring of any individual whose employment was involuntarily terminated by Delphi, provided at the time of such\nsolicitation or hiring you are not engaged in Competition with Delphi and no solicitation of such individual occurred while he or she was\nemployed by Delphi.\n2. Definitions.\n(a) For purposes of this Agreement, "Competition" by you shall mean your engaging in, or otherwise directly or indirectly being\nemployed by or acting as a consultant or lender to, or being a director, officer, employee, principal, agent, stockholder, member, owner or partner of,\nor permitting your name to be used in connection with the activities of any other business or organization anywhere in the world that competes,\ndirectly or indirectly, with Delphi in the Business; provided, however, it shall not be a violation of this Agreement for you to become the registered\nor beneficial owner of up to five percent (5%) of any class of stock of any entity in Competition with Delphi that is publicly traded on a recognized\ndomestic or foreign securities exchange, provided that you do not otherwise participate in the business of such corporation.\n(b) For purposes of this Agreement, "Business" means the creation, development, manufacture, sale, promotion and distribution of\nvehicle electronics, transportation components, integrated systems and modules, electronic technology and other products and services which Delphi\nengages in, or is preparing to become engaged in, at the time of your termination.\n(c)\nFor purposes of this Agreement, the term "Cause" shall have the meaning ascribed to such term in the Value Creation Plan.\n3. Acknowledgements. You acknowledge that the Company would suffer irreparable harm if you fail to comply with Paragraph 1, and that the\nCompany would be entitled to any appropriate relief, including money damages, equitable relief and attorneys' fees. You further acknowledge that\nenforcement of the covenants in Paragraph 1 is necessary to ensure the protection and continuity of the business and goodwill of the Company and\nthat, due to the proprietary nature of the business of the Company, the restrictions set forth in Paragraph 1 are reasonable as to geography, duration\nand scope.\n3\n4. Value Creation Plan Awards. For purposes of the Value Creation Plan and any awards thereunder (collectively, the "Value Creation\nAwards"), if you engage in conduct in breach of this Agreement prior to or at any time within the one (1) year period after any you receive a\npayment pursuant to any Value Creation Award, then such conduct shall be deemed to be a breach of the terms of such Value Creation Award,\njustifying cancellation or rescission of any such Value Creation Award, as applicable.\n5.\nInjunctive Relief. You agree that the Company would suffer irreparable harm if you were to breach, or threaten to breach,\nany\nprovision\nof\nthis Agreement and that the Company would by reason of such breach, or threatened breach, be entitled to injunctive relief in a court of appropriate\njurisdiction, without the need to post any bond, and you further consent and stipulate to the entry of such injunctive relief in such a court prohibiting\nyou from breaching this Agreement. This Paragraph 5 shall not, however, diminish the right of the Company to claim and recover money damages in\naddition to injunctive relief.\n6. Severability. In the event that any one or more of the provisions of this Agreement shall be held to be invalid or unenforceable, the validity\nand enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Moreover, if any one or more of the provisions\ncontained in this Agreement shall be held to be excessively broad as to duration, activity or subject, such provisions shall be construed by limiting\nand reducing them so as to be enforceable to the maximum extent allowed by applicable law. Furthermore, a determination in any jurisdiction that\nthis Agreement, in whole or in part, is invalid or unenforceable shall not in any way affect or impair the validity or enforceability of this Agreement\nin any other jurisdiction.\n7. Waiver. The failure of Delphi to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the same\nor of the right of Delphi to enforce the same. Waiver by Delphi of any breach or default by you (or by any other employee or former employee of\nDelphi) of any term or provision of this Agreement (or any similar agreement between Delphi and you or any other employee or former employee\nof\nDelphi) shall not operate as a waiver of any other breach or default.\n8. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon Delphi, any successor organization which shall\nsucceed to Delphi by acquisition, merger, consolidation or operation of law, or by acquisition of assets of Delphi and any assigns. You may not\nassign your obligations under this Agreement.\n9. Disclosure of Existence of Covenants. You agree that while employed by Delphi and for twenty-four (24) months thereafter, you will\ncommunicate the contents of this Agreement to any person, firm, association, partnership, corporation or other entity which you intend to be\nemployed by, associated with or represent.\n10. Notice to Delphi of Prospective Position. You agree that you will promptly notify the Vice President and General Counsel and the Vice\nPresident of Human Resources of Delphi if, at any time during your employment or within twenty four (24) months following the termination of\nyour employment with Delphi, you accept a position to be employed by, associated with or represent any person, firm, association, partnership,\ncorporation or other entity. You further agree that you will provide Delphi with such information as Delphi may request about your new position to\nallow Delphi to determine whether such position and duties would likely lead to a violation of this Agreement (except that you need not provide any\ninformation that would constitute confidential or trade secret information).\n4\n11. No Oral Modification. This Agreement may not be changed orally, but may be changed only in a writing signed by the Employee and a\nduly authorized representative of Delphi.\n12. Entire Agreement Although this Agreement sets forth the entire understanding between you and Delphi concerning its subject matter, this\nAgreement does not impair, diminish, restrict or waive any other restrictive covenant, nondisclosure obligation or confidentiality obligation you may\nhave to Delphi under any other agreement, policy, plan or program of Delphi. You and Delphi represent that, in executing this Agreement, the\nEmployee and Delphi have not relied upon any representations or statements made, other than those set forth herein, with regard to the subject\nmatter, basis or effect of this Agreement.\n13. Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of\nDelaware, without regard to its conflicts of law principles. The parties hereby irrevocably consent and submit to the jurisdiction of the federal and\nstate courts located within the state of Michigan in any matter arising out of or in connection with, this Agreement.\n14. Rules of Professional Conduct. Nothing in this Agreement shall be deemed to modify, limit or waive Participant's professional duties and\nresponsibilities under the Michigan Rules of Professional Conduct, arising from Participant's service as a lawyer for the Company, its subsidiaries\nand affiliates, including, but not limited to, duties and responsibilities relating to maintaining client confidentiality, and limitations on the use of\nclient information, which Participant agrees apply to all non-public information that is disclosed to Participant in the course of participant's\nemployment by the Company as a lawyer. Further, nothing in this Agreement shall construed to serve as a restriction on the right of the Participant to\npractice law after termination of his or her employment as set forth in such Rules of Professional Conduct, including by accepting employment as\na\nlawyer at a competing company.\nI,\nhave executed this Confidentiality and Noninterference Agreement on the respective date set forth below:\nDate:\n(Signature)\n(Name)\n5	EX-10.10 10 d191007dex1010.htm FORM OF CONFIDENTIALITY AND NONINTERFERENCE AGREEMENT\nExhibit 10.10\nFORM OF CONFIDENTIALITY AND NONINTERFERENCE AGREEMENT\nIn recognition of the critical role that you play as an executive with Delphi Automotive LLP and/or one of its direct or indirect subsidiaries or\naffiliates (collectively, “Delphi” or the “Company”), and as consideration for any and all awards to be granted to you under the Delphi Automotive\nLLP 2010 Management Value Creation Plan (“Value Creation Plan”) and/or for other good and valuable consideration, you (“Employee” or “you”)\nagree to the terms and conditions of this Confidentiality and Noninterference Agreement (this “Agreement”) as follows:\n1. Covenants.\n(a) You acknowledge and agree that: (i) as an executive, you have been and will be exposed to some of the most sensitive and\nconfidential information possessed by or relating to Delphi, including strategic plans, marketing plans, information regarding long-term business\nopportunities and information regarding the development status of specific Company products, as well as extensive assessments of the competitive\nlandscape of the industries in which the Company competes; and (ii) this information represents the product of the Company’s substantial investment\nin research and innovation, is critical to the Company’s competitive success, is disclosed to the Company’s executives only on a strictly confidential\nbasis, and is not made accessible to the public or to the Company’s competitors.\n(b) You further acknowledge and agree that: (i) the business in which the Company is engaged is intensely competitive and that your\nposition and employment by Delphi has required, and will continue to require, that you have access to, and knowledge of, valuable and sensitive\ninformation relating to Delphi and its business including, but not limited to, information relating to its products and product development, pricing,\nengineering and design specifications, trade secrets, customers, suppliers, unique and/or proprietary software and source code, and marketing plans\n(collectively, “Confidential Information”); (ii) the direct or indirect disclosure of such Confidential Information would place the Company at a\nserious competitive disadvantage and would do serious damage, financial and otherwise, to the business of the Company and may constitute\nmisappropriation and/or improper use of trade secrets in violation of applicable laws; (iii) you have been and will be given access to, and have been\nor will be able to develop relationships with, customers, suppliers and employees of the Company at the time and expense of the Company; and\n(iv) by your training, experience and expertise, your services to the Company are, and will continue to be, extraordinary, special and unique.\n(c) You acknowledge and agree that you will keep in strict confidence, and will not, directly or indirectly, at any time during or after your\nemployment with Delphi, disclose, furnish, disseminate, make available or use Confidential Information of the Company or its customers or\nsuppliers, without limitation as to when or how you may have acquired such information, other than in the proper performance of your duties to\nDelphi, unless and until such Confidential Information is or shall become general public knowledge through no fault of yours. You specifically\nacknowledge that all such information, whether written or oral, or in electronic format, or maintained in your mind or memory and whether compiled\nby the Company, and/or you, derives independent economic value from not being readily known to or ascertainable by\nproper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been made by the Company to\nmaintain the secrecy of such information, that such information is the sole property of the Company and that any retention and use of such\ninformation by you during or after your employment with Delphi (except in the course of performing your duties and obligations as an executive)\nshall constitute a misappropriation of the Company’s trade secrets. In the event that you are required by law to disclose any Confidential\nInformation, you agree to give Delphi prompt advance written notice thereof and to provide Delphi with reasonable assistance in obtaining an order\nto protect the Confidential Information from public disclosure.\n(d) You acknowledge and agree that: (i) the Business (as defined below) is intensely competitive and conducted by Delphi throughout\nthe world; and (ii) reasonable limits on your ability to engage in activities that are competitive with Delphi are warranted in order to, among other\nthings, reasonably protect the Confidential Information of Delphi and Delphi’s reputation, customer relationships, goodwill and overall status in the\nmarketplace for which Delphi has invested substantial time and resources. You acknowledge and agree that:\n(i) During your employment and for twelve (12) months after the termination of your employment by you or by Delphi for any\nreason, you will not directly or indirectly engage in Competition (as defined below) with Delphi; or\n(ii) During your employment and for twenty-four (24) months after the termination of your employment by you or by Delphi for\nany reason, you will not directly or indirectly:\n(1) Solicit for your benefit or the benefit of any other person or entity, business of the same or of a similar nature to the\nBusiness (as defined below) from any customer that is doing business with Delphi, provided that after termination of your employment,\nthis restriction shall not apply to any entity that was not a customer of Delphi during the six (6) month period immediately preceding the\ntermination of your employment;\n(2) Solicit for your benefit or the benefit of any other person or entity from any known potential customer of Delphi, business\nof the same or of a similar nature to the Business that has been the subject of a known written or oral bid, offer or proposal by Delphi, or\nof substantial preparation with a view to making such a bid, proposal or offer, provided that after termination of your employment, this\nrestriction shall only apply to a potential customer if the bid, proposal or offer, or substantial preparation for making a bid, proposal or\noffer occurred during the six (6) month period immediately preceding the termination of your employment; or\n(3) Otherwise interfere with the Business of Delphi, including, but not limited to, with respect to any relationship or\nagreement between Delphi and any supplier to Delphi during the period of your employment, provided that after termination of your\nemployment, this restriction shall only apply to relationships or agreements in effect during the six (6) month period immediately\npreceding the termination of your employment; or\n2\n(4) Solicit for your benefit or the benefit of any other person or entity, the employment or services of, or hire or engage, any\nindividual who was known to be employed or engaged by Delphi during the period of your employment, provided that after the\ntermination of your employment, this restriction shall only apply to individuals who were so employed or engaged during the six\n(6) month period immediately preceding the termination of your employment, and provided further, that this restriction will not prohibit\nsolicitation or hiring of any individual whose employment was involuntarily terminated by Delphi, provided at the time of such\nsolicitation or hiring you are not engaged in Competition with Delphi and no solicitation of such individual occurred while he or she was\nemployed by Delphi.\n2. Definitions.\n(a) For purposes of this Agreement, “Competition” by you shall mean your engaging in, or otherwise directly or indirectly being\nemployed by or acting as a consultant or lender to, or being a director, officer, employee, principal, agent, stockholder, member, owner or partner of,\nor permitting your name to be used in connection with the activities of any other business or organization anywhere in the world that competes,\ndirectly or indirectly, with Delphi in the Business; provided, however, it shall not be a violation of this Agreement for you to become the registered\nor beneficial owner of up to five percent (5%) of any class of stock of any entity in Competition with Delphi that is publicly traded on a recognized\ndomestic or foreign securities exchange, provided that you do not otherwise participate in the business of such corporation.\n(b) For purposes of this Agreement, “Business” means the creation, development, manufacture, sale, promotion and distribution of\nvehicle electronics, transportation components, integrated systems and modules, electronic technology and other products and services which Delphi\nengages in, or is preparing to become engaged in, at the time of your termination.\n(c) For purposes of this Agreement, the term “Cause” shall have the meaning ascribed to such term in the Value Creation Plan.\n3. Acknowledgements. You acknowledge that the Company would suffer irreparable harm if you fail to comply with Paragraph 1, and that the\nCompany would be entitled to any appropriate relief, including money damages, equitable relief and attorneys’ fees. You further acknowledge that\nenforcement of the covenants in Paragraph 1 is necessary to ensure the protection and continuity of the business and goodwill of the Company and\nthat, due to the proprietary nature of the business of the Company, the restrictions set forth in Paragraph 1 are reasonable as to geography, duration\nand scope.\n3\n4. Value Creation Plan Awards. For purposes of the Value Creation Plan and any awards thereunder (collectively, the “Value Creation\nAwards”), if you engage in conduct in breach of this Agreement prior to or at any time within the one (1) year period after any you receive a\npayment pursuant to any Value Creation Award, then such conduct shall be deemed to be a breach of the terms of such Value Creation Award,\njustifying cancellation or rescission of any such Value Creation Award, as applicable.\n5. Injunctive Relief. You agree that the Company would suffer irreparable harm if you were to breach, or threaten to breach, any provision of\nthis Agreement and that the Company would by reason of such breach, or threatened breach, be entitled to injunctive relief in a court of appropriate\njurisdiction, without the need to post any bond, and you further consent and stipulate to the entry of such injunctive relief in such a court prohibiting\nyou from breaching this Agreement. This Paragraph 5 shall not, however, diminish the right of the Company to claim and recover money damages in\naddition to injunctive relief.\n6. Severability. In the event that any one or more of the provisions of this Agreement shall be held to be invalid or unenforceable, the validity\nand enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Moreover, if any one or more of the provisions\ncontained in this Agreement shall be held to be excessively broad as to duration, activity or subject, such provisions shall be construed by limiting\nand reducing them so as to be enforceable to the maximum extent allowed by applicable law. Furthermore, a determination in any jurisdiction that\nthis Agreement, in whole or in part, is invalid or unenforceable shall not in any way affect or impair the validity or enforceability of this Agreement\nin any other jurisdiction.\n7. Waiver. The failure of Delphi to enforce any terms, provisions or covenants of this Agreement shall not be construed as a waiver of the same\nor of the right of Delphi to enforce the same. Waiver by Delphi of any breach or default by you (or by any other employee or former employee of\nDelphi) of any term or provision of this Agreement (or any similar agreement between Delphi and you or any other employee or former employee of\nDelphi) shall not operate as a waiver of any other breach or default.\n8. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon Delphi, any successor organization which shall\nsucceed to Delphi by acquisition, merger, consolidation or operation of law, or by acquisition of assets of Delphi and any assigns. You may not\nassign your obligations under this Agreement.\n9. Disclosure of Existence of Covenants. You agree that while employed by Delphi and for twenty-four (24) months thereafter, you will\ncommunicate the contents of this Agreement to any person, firm, association, partnership, corporation or other entity which you intend to be\nemployed by, associated with or represent.\n10. Notice to Delphi of Prospective Position. You agree that you will promptly notify the Vice President and General Counsel and the Vice\nPresident of Human Resources of Delphi if, at any time during your employment or within twenty four (24) months following the termination of\nyour employment with Delphi, you accept a position to be employed by, associated with or represent any person, firm, association, partnership,\ncorporation or other entity. You further agree that you will provide Delphi with such information as Delphi may request about your new position to\nallow Delphi to determine whether such position and duties would likely lead to a violation of this Agreement (except that you need not provide any\ninformation that would constitute confidential or trade secret information).\n4\n11. No Oral Modification. This Agreement may not be changed orally, but may be changed only in a writing signed by the Employee and a\nduly authorized representative of Delphi.\n12. Entire Agreement. Although this Agreement sets forth the entire understanding between you and Delphi concerning its subject matter, this\nAgreement does not impair, diminish, restrict or waive any other restrictive covenant, nondisclosure obligation or confidentiality obligation you may\nhave to Delphi under any other agreement, policy, plan or program of Delphi. You and Delphi represent that, in executing this Agreement, the\nEmployee and Delphi have not relied upon any representations or statements made, other than those set forth herein, with regard to the subject\nmatter, basis or effect of this Agreement.\n13. Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of\nDelaware, without regard to its conflicts of law principles. The parties hereby irrevocably consent and submit to the jurisdiction of the federal and\nstate courts located within the state of Michigan in any matter arising out of or in connection with, this Agreement.\n14. Rules of Professional Conduct. Nothing in this Agreement shall be deemed to modify, limit or waive Participant’s professional duties and\nresponsibilities under the Michigan Rules of Professional Conduct, arising from Participant’s service as a lawyer for the Company, its subsidiaries\nand affiliates, including, but not limited to, duties and responsibilities relating to maintaining client confidentiality, and limitations on the use of\nclient information, which Participant agrees apply to all non-public information that is disclosed to Participant in the course of participant’s\nemployment by the Company as a lawyer. Further, nothing in this Agreement shall construed to serve as a restriction on the right of the Participant to\npractice law after termination of his or her employment as set forth in such Rules of Professional Conduct, including by accepting employment as a\nlawyer at a competing company.\nI,\n, have executed this Confidentiality and Noninterference Agreement on the respective date set forth below:\nDate:\n(Signature)\n(Name)\n5
+8a7fedc5ffa5c2ffa424753229b52943.pdf	effective_date jurisdiction party term	EX-10.13 17 d638429dex1013.htm EX-10.13\nExhibit 10.13\nNON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE\nAGREEMENT\nTHIS NON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE AGREEMENT (“Agreement”) is\nentered into on the\nday of October, 2010, by and between AGS LLC a Delaware Corporation (“Company”), and Curt Mayer\n(“Employee”).\nEmployee and Company have entered into a separate employment agreement of the same date and that agreement contains language in\ncertain paragraphs that may be different than that contained in this document. In the event of any controversy in interpretation of either\nagreement, the language in the employment agreement shall supersede any language in this agreement.\nIn consideration of the Company employing Employee and the compensation to be paid to Employee during the course of his/her\nemployment, Employee hereby agrees as follows:\n1. Effective Date-Affiliates.\n(a) This Agreement shall be effective as of the first day of employment with the Company.\n(b) All references to Affiliates shall include American Gaming Systems, AGS Partners LLC , AGS Capital, LLC, AGS\nHoldings, LLC, GTNA Solutions, Corporation or any other entity acquired or organized by the Company during the course of the Employee’s\nemployment with the Company.\n2. Non-Disclosure, Non-Solicitation and Covenant Not to Compete.\n(a) Non-Disclosure. Employee understands and acknowledges that Confidential Information (as defined herein), constitutes a\nvaluable asset of Company and its Affiliates, and may not be converted to Employee’s own use. During the course of employment and thereafter,\nEmployee shall hold in a fiduciary capacity for the benefit of Company all secret or confidential information, knowledge or data relating to\nCompany or its Affiliates, and their respective businesses, that shall not be public knowledge (other than information which becomes public as a\nresult of acts of Employee or his representatives in violation of this Agreement), including, without limitation, its products, programs, projects,\npromotions, marketing, business plans or practices, business operations, employees, research and development, intellectual property,\ncustomer/client information, matters subject to litigation, and technology or financial information of Company or its Affiliates (collectively\nreferred to as “Confidential Information”), without the prior written consent of Company. In the event Employee is required by law or court\norder to disclose any Confidential Information, Employee shall promptly notify Company of such requirement and provide Company with a copy\nof any court order or of any law that requires such disclosure and, if Company so elects, to the extent permitted by law, provide Company an\nadequate opportunity, at its own expense, to contest such law or court order, prior to any such required disclosure by Employee.\n-1-\n(b) Non-Solicitation.\n(1) Employees. During the course of employment and for a two (2) year period thereafter, Employee shall not, for\nhimself or any third party, alone or as a member of a partnership or limited liability company, or as an officer, director, shareholder or otherwise,\ndirectly or indirectly, solicit or contact any employee of Company or any Affiliate of Company, with a view to inducing or encouraging such\nemployee to leave the employ of Company or its Affiliates, for the purpose of being employed at a company employing Employee, a employer\naffiliated with Company or any competitor of Company or any affiliate thereof.\n(2) Client and Customers. Employee agrees that for a period of one (1) year after the termination of employment with\nthe Company for any reason whatsoever, Employee shall not, on behalf of Employee or on behalf of any other individual, association or entity,\ncall on any of the clients or customers of the Company or any affiliate of the Company for the purpose of soliciting or inducing any of such\ncustomers to acquire (or providing to any of such customers) any product or service provided by the Company or an affiliate of the Company, nor\nwill Employee in any way, directly or indirectly, as agent or otherwise, in any other manner solicit, influence or encourage such customers to take\naway or to divert or direct their business to Employee or any other person or entity by or with which Employee is employed, associated, affiliated\nor otherwise related.\n(c) Covenant Not to Compete. As a material inducement for Company to enter into this Agreement, during the course of\nemployment and during a one (1) year period thereafter, Employee shall not directly or indirectly, engage or participate in any way in nor accept\nany such position or affiliation with, nor render any such services on behalf of, any Competing Business, notwithstanding the job title given to\nEmployee by any Competing Business. For purposes of this Agreement a Competing Business shall mean any person or business engaged in the\nmanufacturing and/or distribution of Class II and/or Class III electronic gaming devices and/or casino back office systems. If you are terminated\nwithout “Cause” as defined in your offer letter the Covenant Not to Compete portion of this Agreement shall terminate after six (6) months\nunless the Company continues to pay your base salary (per the normal Company payroll cycle) for six (6) months past the date of termination in\nexchange for an additional six (6) month extension of the Covenant Not to Compete.\n(d) Acknowledgement. The parties acknowledge that Company would not have entered into this Agreement in the absence of\nthe preceding reasonable restrictions in this Section 2, and Employee confirms that these restrictions do not and will not unduly impair his ability\nto make a living after the termination of his/her employment with Company, the purpose of which is to protect the goodwill and other legitimate\nbusiness interests of Company. Employee acknowledges that the provisions of this Section 2 are reasonable and necessary for the\n-2-\nprotection of Company and that Company will be irrevocably damaged if such provisions are not specifically enforced. Accordingly, Employee\nagrees that, in addition to any other relief to which Company may be entitled in the form of actual or punitive damages, Company shall be\nentitled to seek and obtain injunctive relief from a court of competent jurisdiction (without posting a bond therefore) for the purpose of\nrestraining Employee from any actual or threatened breach of such provisions. The provisions of this Section 2 shall survive the term of\nemployment.\n3. Prior Commitments. Employee has no other agreements, relationships, or commitments to any other person or entity that conflict\nwith Employee’s obligations to the Company under this Agreement.\n4. Proprietary Information or Trade Secrets of Others. Employee will not disclose to the Company or its Affiliates, or use, or induce\nthe Company to use, any proprietary information or trade secrets of others. Employee represents and warrants that he/she has returned all\nproperty and Confidential Information belonging to all prior employers.\n5. Delivery of Documents and Data Upon Termination. In the event of termination of Employee’s employment with the Company for\nany reason whatsoever, Employee agrees, promptly and without request, to deliver to and inform the Company of all documents and data\npertaining to his/her employment, and the Confidential Information of the Company, whether prepared by Employee or otherwise coming into\nhis/her possession or control. Employee will not retain any written or other tangible material, or copies thereof, containing any information\nconcerning or disclosing any of the Confidential Information of the Company. Employee recognizes that such unauthorized taking of the\nCompany’s trade secrets can result in criminal penalties and civil liability under the Uniform Trade Secrets Act; and that willful misappropriation\nmay result in fines and an award against Employee for damages as well as the Company’s attorneys’ fees in collecting such damages, which shall\nbe in addition to, and shall not supersede, the Company’s available remedies pursuant to state and federal law.\n6. Equitable Remedies. Employee recognizes and agrees that the violation, breach or threatened violation or breach of any term,\nprovision, or condition of this Agreement may cause irreparable damage to the Company which is difficult to calculate, and that the award of any\nsum or damages may not be adequate relief to the Company. Employee therefore agrees that, in addition to all of the remedies available in the\nevent of any actual or threatened violation or breach of this Agreement, the Company shall have the right to injunctive and other equitable relief.\nHowever, no specification in this Agreement of a specific legal or equitable remedy shall be construed as a waiver of or prohibition against the\npursuit of other legal or equitable remedies in the event of the actual or threatened violation or breach of a provision of this Agreement.\n7. Cumulative Remedies. Each and all of the several rights and remedies provided for in this Agreement shall be cumulative. No one\nright or remedy shall be exclusive of the others, or of any right or remedy allowed in law or in equity. No waiver or indulgence by the Company\nof any failure by Employee to keep or perform any promise or condition of this\n-3-\nAgreement shall be a waiver of any preceding or succeeding breach of the same, or any other promise or condition. No waiver by the Company\nof any right shall be construed as a waiver of any other right. The Company shall not be required to give notice to enforce strict adherence to all\nterms of this Agreement.\n8. Attorneys’ Fees. If any action is necessary to enforce this Agreement, the prevailing party shall be entitled to recover its attorneys’\nfees, costs, and expenses.\n9. Material Condition of Employment. Employee acknowledges and agrees that the protections set forth in this Agreement are a\nmaterial condition to his/her employment with and compensation by the Company.\n10. Amendment and Binding Effect. This Agreement may not be amended except by an instrument in writing signed by both parties.\nThis Agreement shall be binding on the heirs, executors, administrators, and other legal representatives and assigns of Employee, and is for the\nbenefit of the Company and its successors and assigns.\n11. Governing Law. The laws of the State of Nevada (without giving effect to choice of law or conflict of law principles) shall govern\nthe validity, construction, performance and effect of this Agreement, except to the extent governed by federal law, irrespective of the fact that one\nor more of the parities now is, or may become, a resident or citizen of a different state or country. The parties hereby expressly submit to the\npersonal jurisdiction of the court or arbitral forum located in Clark County, State of Nevada, and waive any objection or defense based on\npersonal jurisdiction or venue that might otherwise be asserted to proceeding in such forum(s).\n12. Entire Understanding. This Agreement expresses the entire understanding of the parties about the described subject matter.\n13. Severability. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid, in\nwhole or in part, for any reason whatsoever, the validity and enforceability of the remaining provisions, or portions of them, will not be affected.\n14. Employment at Will. Employment and compensation can be terminated, with or without cause, and with or without notice, at any\ntime, at the option of the Company or the Employee. Nothing contained in this Confidentiality Agreement shall limit or otherwise alter the\nforegoing.\n15. Headings. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, define or\nlimit the scope, intent or interpretation of this Agreement.\n-4-\nAGS LLC\nBy: /s/ Robert Miodunski\n“Company”\n/s/ Curt Mayer\n(Signature of Employee)\nCurt Mayer\n“Employee”\n-5-	EX-10.13 17 d638429dex1013.htm EX-10.13\nExhibit 10.13\nNON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE\nAGREEMENT\nTHIS NON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE AGREEMENT (“Agreement”) is\nentered into on the day of October, 2010, by and between AGS LLC a Delaware Corporation (“Company”), and Curt Mayer\n(“Employee”).\nEmployee and Company have entered into a separate employment agreement of the same date and that agreement contains language in\ncertain paragraphs that may be different than that contained in this document. In the event of any controversy in interpretation of either\nagreement, the language in the employment agreement shall supersede any language in this agreement.\nIn consideration of the Company employing Employee and the compensation to be paid to Employee during the course of his/her\nemployment, Employee hereby agrees as follows:\n1. Effective Date-Affiliates.\n(a) This Agreement shall be effective as of the first day of employment with the Company.\n(b) All references to Affiliates shall include American Gaming Systems, AGS Partners LLC , AGS Capital, LLC, AGS\nHoldings, LLC, GTNA Solutions, Corporation or any other entity acquired or organized by the Company during the course of the Employee’s\nemployment with the Company.\n2. Non-Disclosure, Non-Solicitation and Covenant Not to Compete.\n(a) Non-Disclosure. Employee understands and acknowledges that Confidential Information (as defined herein), constitutes a\nvaluable asset of Company and its Affiliates, and may not be converted to Employee’s own use. During the course of employment and thereafter,\nEmployee shall hold in a fiduciary capacity for the benefit of Company all secret or confidential information, knowledge or data relating to\nCompany or its Affiliates, and their respective businesses, that shall not be public knowledge (other than information which becomes public as a\nresult of acts of Employee or his representatives in violation of this Agreement), including, without limitation, its products, programs, projects,\npromotions, marketing, business plans or practices, business operations, employees, research and development, intellectual property,\ncustomer/client information, matters subject to litigation, and technology or financial information of Company or its Affiliates (collectively\nreferred to as “Confidential Information”), without the prior written consent of Company. In the event Employee is required by law or court\norder to disclose any Confidential Information, Employee shall promptly notify Company of such requirement and provide Company with a copy\nof any court order or of any law that requires such disclosure and, if Company so elects, to the extent permitted by law, provide Company an\nadequate opportunity, at its own expense, to contest such law or court order, prior to any such required disclosure by Employee.\n-1-\n(b) Non-Solicitation.\n(1) Employees. During the course of employment and for a two (2) year period thereafter, Employee shall not, for\nhimself or any third party, alone or as a member of a partnership or limited liability company, or as an officer, director, shareholder or otherwise,\ndirectly or indirectly, solicit or contact any employee of Company or any Affiliate of Company, with a view to inducing or encouraging such\nemployee to leave the employ of Company or its Affiliates, for the purpose of being employed at a company employing Employee, a employer\naffiliated with Company or any competitor of Company or any affiliate thereof.\n(2) Client and Customers. Employee agrees that for a period of one (1) year after the termination of employment with\nthe Company for any reason whatsoever, Employee shall not, on behalf of Employee or on behalf of any other individual, association or entity,\ncall on any of the clients or customers of the Company or any affiliate of the Company for the purpose of soliciting or inducing any of such\ncustomers to acquire (or providing to any of such customers) any product or service provided by the Company or an affiliate of the Company, nor\nwill Employee in any way, directly or indirectly, as agent or otherwise, in any other manner solicit, influence or encourage such customers to take\naway or to divert or direct their business to Employee or any other person or entity by or with which Employee is employed, associated, affiliated\nor otherwise related.\n(c) Covenant Not to Compete. As a material inducement for Company to enter into this Agreement, during the course of\nemployment and during a one (1) year period thereafter, Employee shall not directly or indirectly, engage or participate in any way in nor accept\nany such position or affiliation with, nor render any such services on behalf of, any Competing Business, notwithstanding the job title given to\nEmployee by any Competing Business. For purposes of this Agreement a Competing Business shall mean any person or business engaged in the\nmanufacturing and/or distribution of Class II and/or Class III electronic gaming devices and/or casino back office systems. If you are terminated\nwithout “Cause” as defined in your offer letter the Covenant Not to Compete portion of this Agreement shall terminate after six (6) months\nunless the Company continues to pay your base salary (per the normal Company payroll cycle) for six (6) months past the date of termination in\nexchange for an additional six (6) month extension of the Covenant Not to Compete.\n(d) Acknowledgement. The parties acknowledge that Company would not have entered into this Agreement in the absence of\nthe preceding reasonable restrictions in this Section 2, and Employee confirms that these restrictions do not and will not unduly impair his ability\nto make a living after the termination of his/her employment with Company, the purpose of which is to protect the goodwill and other legitimate\nbusiness interests of Company. Employee acknowledges that the provisions of this Section 2 are reasonable and necessary for the\n-\nprotection of Company and that Company will be irrevocably damaged if such provisions are not specifically enforced. Accordingly, Employee\nagrees that, in addition to any other relief to which Company may be entitled in the form of actual or punitive damages, Company shall be\nentitled to seek and obtain injunctive relief from a court of competent jurisdiction (without posting a bond therefore) for the purpose of\nrestraining Employee from any actual or threatened breach of such provisions. The provisions of this Section 2 shall survive the term of\nemployment.\n3. Prior Commitments. Employee has no other agreements, relationships, or commitments to any other person or entity that conflict\nwith Employee’s obligations to the Company under this Agreement.\n4. Proprietary Information or Trade Secrets of Others. Employee will not disclose to the Company or its Affiliates, or use, or induce\nthe Company to use, any proprietary information or trade secrets of others. Employee represents and warrants that he/she has returned all\nproperty and Confidential Information belonging to all prior employers.\n5. Delivery_of Documents and Data Upon Termination. In the event of termination of Employee’s employment with the Company for\nany reason whatsoever, Employee agrees, promptly and without request, to deliver to and inform the Company of all documents and data\npertaining to his/her employment, and the Confidential Information of the Company, whether prepared by Employee or otherwise coming into\nhis/her possession or control. Employee will not retain any written or other tangible material, or copies thereof, containing any information\nconcerning or disclosing any of the Confidential Information of the Company. Employee recognizes that such unauthorized taking of the\nCompany’s trade secrets can result in criminal penalties and civil liability under the Uniform Trade Secrets Act; and that willful misappropriation\nmay result in fines and an award against Employee for damages as well as the Company’s attorneys’ fees in collecting such damages, which shall\nbe in addition to, and shall not supersede, the Companys available remedies pursuant to state and federal law.\n6. Equitable Remedies. Employee recognizes and agrees that the violation, breach or threatened violation or breach of any term,\nprovision, or condition of this Agreement may cause irreparable damage to the Company which is difficult to calculate, and that the award of any\nsum or damages may not be adequate relief to the Company. Employee therefore agrees that, in addition to all of the remedies available in the\nevent of any actual or threatened violation or breach of this Agreement, the Company shall have the right to injunctive and other equitable relief.\nHowever, no specification in this Agreement of a specific legal or equitable remedy shall be construed as a waiver of or prohibition against the\npursuit of other legal or equitable remedies in the event of the actual or threatened violation or breach of a provision of this Agreement.\n7. Cumulative Remedies. Each and all of the several rights and remedies provided for in this Agreement shall be cumulative. No one\nright or remedy shall be exclusive of the others, or of any right or remedy allowed in law or in equity. No waiver or indulgence by the Company\nof any failure by Employee to keep or perform any promise or condition of this\n_3-\nAgreement shall be a waiver of any preceding or succeeding breach of the same, or any other promise or condition. No waiver by the Company\nof any right shall be construed as a waiver of any other right. The Company shall not be required to give notice to enforce strict adherence to all\nterms of this Agreement.\n8. Attorneys’ Fees. If any action is necessary to enforce this Agreement, the prevailing party shall be entitled to recover its attorneys’\nfees, costs, and expenses.\n9. Material Condition of Employment. Employee acknowledges and agrees that the protections set forth in this Agreement are a\nmaterial condition to his/her employment with and compensation by the Company.\n10. Amendment and Binding Effect. This Agreement may not be amended except by an instrument in writing signed by both parties.\nThis Agreement shall be binding on the heirs, executors, administrators, and other legal representatives and assigns of Employee, and is for the\nbenefit of the Company and its successors and assigns.\n11. Governing Law. The laws of the State of Nevada (without giving effect to choice of law or conflict of law principles) shall govern\nthe validity, construction, performance and effect of this Agreement, except to the extent governed by federal law, irrespective of the fact that one\nor more of the parities now is, or may become, a resident or citizen of a different state or country. The parties hereby expressly submit to the\npersonal jurisdiction of the court or arbitral forum located in Clark County, State of Nevada, and waive any objection or defense based on\npersonal jurisdiction or venue that might otherwise be asserted to proceeding in such forum(s).\n12. Entire Understanding. This Agreement expresses the entire understanding of the parties about the described subject matter.\n13. Severability. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid, in\nwhole or in part, for any reason whatsoever, the validity and enforceability of the remaining provisions, or portions of them, will not be affected.\n14. Employment at Will. Employment and compensation can be terminated, with or without cause, and with or without notice, at any\ntime, at the option of the Company or the Employee. Nothing contained in this Confidentiality Agreement shall limit or otherwise alter the\nforegoing.\n15. Headings. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, define or\nlimit the scope, intent or interpretation of this Agreement.\n4-\nAGSLLC\nBy: /s/ Robert Miodunski “Company”\n/s/ Curt Mayer\n(Signature of Employee)\nCurt Mayer\n“Employee”	EX-10.13 17 d638429dex1013.htm EX-10.13\nExhibit 10.13\nNON-DISCLOSURE NON-SOLICITATION AND COVENANT NOT TO COMPETE\nAGREEMENT\nTHIS NON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE AGREEMENT ("Agreement") is\nentered into on the day of October, 2010, by and between AGS LLC a Delaware Corporation ("Company"), and Curt Mayer\n("Employee").\nEmployee and Company have entered into a separate employment agreement of the same date and that agreement contains language in\ncertain paragraphs that may be different than that contained in this document. In the event of any controversy in interpretation of either\nagreement, the language in the employment agreement shall supersede any language in this agreement.\nIn consideration of the Company employing Employee and the compensation to be paid to Employee during the course of his/her\nemployment, Employee hereby agrees as follows:\n1. Effective Date-Affiliates.\n(a) This Agreement shall be effective as of the first day of employment with the Company.\n(b) All references to Affiliates shall include American Gaming Systems, AGS Partners LLC AGS Capital, LLC, AGS\nHoldings, LLC, GTNA Solutions, Corporation or any other entity acquired or organized by the Company during the course of the Employee's\nemployment with the Company.\n2. Non-Disclosure, Non-Solicitation and Covenant Not to Compete.\n(a) Non-Disclosure. Employee understands and acknowledges that Confidential Information (as defined herein), constitutes a\nvaluable asset of Company and its Affiliates, and may not be converted to Employee's own use. During the course of employment and thereafter,\nEmployee shall hold in a fiduciary capacity for the benefit of Company all secret or confidential information, knowledge or data relating to\nCompany or its Affiliates, and their respective businesses, that shall not be public knowledge (other than information which becomes public as\na\nresult of acts of Employee or his representatives in violation of this Agreement), including, without limitation, its products, programs, projects,\npromotions, marketing, business plans or practices, business operations, employees, research and development, intellectual property,\ncustomer/client information, matters subject to litigation, and technology or financial information of Company or its Affiliates (collectively\nreferred to as "Confidential Information"), without the prior written consent of Company. In the event Employee is required by law or court\norder to disclose any Confidential Information, Employee shall promptly notify Company of such requirement and provide Company with a copy\nof any court order or of any law that requires such disclosure and, if Company so elects, to the extent permitted by law, provide Company\nan\nadequate opportunity, at its own expense, to contest such law or court order, prior to any such required disclosure by Employee.\n-1-\n(b) Non-Solicitation.\n(1) Employees. During the course of employment and for a two (2) year period thereafter, Employee shall not, for\nhimself or any third party, alone or as a member of a partnership or limited liability company, or as an officer, director, shareholder or otherwise,\ndirectly or indirectly, solicit or contact any employee of Company or any Affiliate of Company, with a view to inducing or encouraging such\nemployee to leave the employ of Company or its Affiliates, for the purpose of being employed at a company employing Employee, a employer\naffiliated with Company or any competitor of Company or any affiliate thereof.\n(2) Client and Customers. Employee agrees that for a period of one (1) year after the termination of employment with\nthe Company for any reason whatsoever, Employee shall not, on behalf of Employee or on behalf of any other individual, association or entity,\ncall on any of the clients or customers of the Company or any affiliate of the Company for the purpose of soliciting or inducing any of such\ncustomers\nto\nacquire (or providing to any of such customers) any product or service provided by the Company or an affiliate of the Company, nor\nwill Employee in any way, directly or indirectly, as agent or otherwise, in any other manner solicit, influence or encourage such customers to take\naway or to divert or direct their business to Employee or any other person or entity by or with which Employee is employed, associated, affiliated\nor otherwise related.\n(c) Covenant Not to Compete. As a material inducement for Company to enter into this Agreement, during the course of\nemployment and during a one (1) year period thereafter, Employee shall not directly or indirectly, engage or participate in any way in nor accept\nany such position or affiliation with, nor render any such services on behalf of, any Competing Business, notwithstanding the job title given to\nEmployee by any Competing Business. For purposes of this Agreement a Competing Business shall mean any person or business engaged in the\nmanufacturing and/or distribution of Class II and/or Class III electronic gaming devices and/or casino back office systems. If you are terminated\nwithout "Cause" as defined in your offer letter the Covenant Not to Compete portion of this Agreement shall terminate after six (6) months\nunless the Company continues to pay your base salary (per the normal Company payroll cycle) for six (6) months past the date of termination in\nexchange for an additional six (6) month extension of the Covenant Not to Compete.\n(d) Acknowledgement. The parties acknowledge that Company would not have entered into this Agreement in the absence of\nthe preceding reasonable restrictions in this Section 2, and Employee confirms that these restrictions do not and will not unduly impair his ability\nto make a living after the termination of his/her employment with Company, the purpose of which is to protect the goodwill and other legitimate\nbusiness interests of Company. Employee acknowledges that the provisions of this Section 2 are reasonable and necessary for the\n-2-\nprotection of Company and that Company will be irrevocably damaged if such provisions are not specifically enforced. Accordingly, Employee\nagrees that, in addition to any other relief to which Company may be entitled in the form of actual or punitive damages, Company shall be\nentitled to seek and obtain injunctive relief from a court of competent jurisdiction (without posting a bond therefore) for the purpose of\nrestraining Employee from any actual or threatened breach of such provisions. The provisions of this Section 2 shall survive the term\nof\nemployment.\n3. Prior Commitments. Employee has no other agreements, relationships, or commitments to any other person or entity that conflict\nwith Employee's obligations to the Company under this Agreement.\n4. Proprietary. Information or Trade Secrets of Others. Employee will not disclose to the Company or its Affiliates, or use, or induce\nthe Company to use, any proprietary information or trade secrets of others. Employee represents and warrants that he/she has returned all\nproperty and Confidential Information belonging to all prior employers.\n5. Delivery. of Documents and Data Upon Termination. In the event of termination of Employee's employment with the Company for\nany reason whatsoever, Employee agrees, promptly and without request, to deliver to and inform the Company of all documents and data\npertaining to his/her employment, and the Confidential Information of the Company, whether prepared by Employee or otherwise coming into\nhis/her\npossession or control. Employee will not retain any written or other tangible material, or copies thereof, containing any information\nconcerning or disclosing any of the Confidential Information of the Company. Employee recognizes that such unauthorized taking of the\nCompany's trade secrets can result in criminal penalties and civil liability under the Uniform Trade Secrets Act; and that willful misappropriation\nmay result in fines and an award against Employee for damages as well as the Company's attorneys' fees in collecting such damages, which shall\nbe in addition to, and shall not supersede, the Company's available remedies pursuant to state and federal law.\n6. Equitable Remedies. Employee recognizes and agrees that the violation, breach or threatened violation or breach of any term,\nprovision, or condition of this Agreement may cause irreparable damage to the Company which is difficult to calculate, and that the award of any\nsum or damages may not be adequate relief to the Company. Employee therefore agrees that, in addition to all of the remedies available in the\nevent\nof\nany actual or threatened violation or breach of this Agreement, the Company shall have the right to injunctive and other equitable relief.\nHowever, no specification in this Agreement of a specific legal or equitable remedy shall be construed as a waiver of or prohibition against the\npursuit of other legal or equitable remedies in the event of the actual or threatened violation or breach of a provision of this Agreement.\n7. Cumulative Remedies. Each and all of the several rights and remedies provided for in this Agreement shall be cumulative. No one\nright or remedy shall be exclusive of the others, or of any right or remedy allowed in law or in equity. No waiver or indulgence by the Company\nof any failure by Employee to keep or perform any promise or condition of this\n-3-\nAgreement shall be a waiver of any preceding or succeeding breach of the same, or any other promise or condition. No waiver by the Company\nof any right shall be construed as a waiver of any other right. The Company shall not be required to give notice to enforce strict adherence to all\nterms of this Agreement.\n8. Attorneys' Fees. If any action is necessary to enforce this Agreement, the prevailing party shall be entitled to recover its attorneys'\nfees, costs, and expenses.\n9.\nMaterial Condition of Employment. Employee acknowledges and agrees that the protections set forth in this Agreement are\na\nmaterial condition to his/her employment with and compensation by the Company.\n10. Amendment and Binding Effect. This Agreement may not be amended except by an instrument in writing signed by both parties.\nThis Agreement shall be binding on the heirs, executors, administrators, and other legal representatives and assigns of Employee, and is for the\nbenefit of the Company and its successors and assigns.\n11.\nGoverning Law. The laws of the State of Nevada (without giving effect to choice of law or conflict of law principles) shall govern\nthe validity, construction, performance and effect of this Agreement, except to the extent governed by federal law, irrespective of the fact that one\nor more of the parities now is, or may become, a resident or citizen of a different state or country. The parties hereby expressly submit to the\npersonal jurisdiction of the court or arbitral forum located in Clark County, State of Nevada, and waive any objection or defense based on\npersonal jurisdiction or venue that might otherwise be asserted to proceeding in such forum(s).\n12. Entire Understanding. This Agreement expresses the entire understanding of the parties about the described subject matter.\n13. Severability.. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid, in\nwhole or in part, for any reason whatsoever, the validity and enforceability of the remaining provisions, or portions of them, will not be affected.\n14. Employment at Will. Employment and compensation can be terminated, with or without cause, and with or without notice, at any\ntime, at the option of the Company or the Employee. Nothing contained in this Confidentiality Agreement shall limit or otherwise alter the\nforegoing.\n15. Headings. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, define or\nlimit the scope, intent or interpretation of this Agreement.\n-4-\nAGS LLC\nBy: /s/ Robert Miodunski\n"Company"\n/s/ Curt Mayer\n(Signature of Employee)\nCurt Mayer\n"Employee"\n-5-	EX-10.13 17 d638429dex1013.htm EX-10.13\nExhibit 10.13\nNON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE\nAGREEMENT\nTHIS NON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE AGREEMENT (“Agreement”) is\nentered into on the\nday of October, 2010, by and between AGS LLC a Delaware Corporation (“Company”), and Curt Mayer\n(“Employee”).\nEmployee and Company have entered into a separate employment agreement of the same date and that agreement contains language in\ncertain paragraphs that may be different than that contained in this document. In the event of any controversy in interpretation of either\nagreement, the language in the employment agreement shall supersede any language in this agreement.\nIn consideration of the Company employing Employee and the compensation to be paid to Employee during the course of his/her\nemployment, Employee hereby agrees as follows:\n1. Effective Date-Affiliates.\n(a) This Agreement shall be effective as of the first day of employment with the Company.\n(b) All references to Affiliates shall include American Gaming Systems, AGS Partners LLC , AGS Capital, LLC, AGS\nHoldings, LLC, GTNA Solutions, Corporation or any other entity acquired or organized by the Company during the course of the Employee’s\nemployment with the Company.\n2. Non-Disclosure, Non-Solicitation and Covenant Not to Compete.\n(a) Non-Disclosure. Employee understands and acknowledges that Confidential Information (as defined herein), constitutes a\nvaluable asset of Company and its Affiliates, and may not be converted to Employee’s own use. During the course of employment and thereafter,\nEmployee shall hold in a fiduciary capacity for the benefit of Company all secret or confidential information, knowledge or data relating to\nCompany or its Affiliates, and their respective businesses, that shall not be public knowledge (other than information which becomes public as a\nresult of acts of Employee or his representatives in violation of this Agreement), including, without limitation, its products, programs, projects,\npromotions, marketing, business plans or practices, business operations, employees, research and development, intellectual property,\ncustomer/client information, matters subject to litigation, and technology or financial information of Company or its Affiliates (collectively\nreferred to as “Confidential Information”), without the prior written consent of Company. In the event Employee is required by law or court\norder to disclose any Confidential Information, Employee shall promptly notify Company of such requirement and provide Company with a copy\nof any court order or of any law that requires such disclosure and, if Company so elects, to the extent permitted by law, provide Company an\nadequate opportunity, at its own expense, to contest such law or court order, prior to any such required disclosure by Employee.\n-1-\n(b) Non-Solicitation.\n(1) Employees. During the course of employment and for a two (2) year period thereafter, Employee shall not, for\nhimself or any third party, alone or as a member of a partnership or limited liability company, or as an officer, director, shareholder or otherwise,\ndirectly or indirectly, solicit or contact any employee of Company or any Affiliate of Company, with a view to inducing or encouraging such\nemployee to leave the employ of Company or its Affiliates, for the purpose of being employed at a company employing Employee, a employer\naffiliated with Company or any competitor of Company or any affiliate thereof.\n(2) Client and Customers. Employee agrees that for a period of one (1) year after the termination of employment with\nthe Company for any reason whatsoever, Employee shall not, on behalf of Employee or on behalf of any other individual, association or entity,\ncall on any of the clients or customers of the Company or any affiliate of the Company for the purpose of soliciting or inducing any of such\ncustomers to acquire (or providing to any of such customers) any product or service provided by the Company or an affiliate of the Company, nor\nwill Employee in any way, directly or indirectly, as agent or otherwise, in any other manner solicit, influence or encourage such customers to take\naway or to divert or direct their business to Employee or any other person or entity by or with which Employee is employed, associated, affiliated\nor otherwise related.\n(c) Covenant Not to Compete. As a material inducement for Company to enter into this Agreement, during the course of\nemployment and during a one (1) year period thereafter, Employee shall not directly or indirectly, engage or participate in any way in nor accept\nany such position or affiliation with, nor render any such services on behalf of, any Competing Business, notwithstanding the job title given to\nEmployee by any Competing Business. For purposes of this Agreement a Competing Business shall mean any person or business engaged in the\nmanufacturing and/or distribution of Class II and/or Class III electronic gaming devices and/or casino back office systems. If you are terminated\nwithout “Cause” as defined in your offer letter the Covenant Not to Compete portion of this Agreement shall terminate after six (6) months\nunless the Company continues to pay your base salary (per the normal Company payroll cycle) for six (6) months past the date of termination in\nexchange for an additional six (6) month extension of the Covenant Not to Compete.\n(d) Acknowledgement. The parties acknowledge that Company would not have entered into this Agreement in the absence of\nthe preceding reasonable restrictions in this Section 2, and Employee confirms that these restrictions do not and will not unduly impair his ability\nto make a living after the termination of his/her employment with Company, the purpose of which is to protect the goodwill and other legitimate\nbusiness interests of Company. Employee acknowledges that the provisions of this Section 2 are reasonable and necessary for the\n-2-\nprotection of Company and that Company will be irrevocably damaged if such provisions are not specifically enforced. Accordingly, Employee\nagrees that, in addition to any other relief to which Company may be entitled in the form of actual or punitive damages, Company shall be\nentitled to seek and obtain injunctive relief from a court of competent jurisdiction (without posting a bond therefore) for the purpose of\nrestraining Employee from any actual or threatened breach of such provisions. The provisions of this Section 2 shall survive the term of\nemployment.\n3. Prior Commitments. Employee has no other agreements, relationships, or commitments to any other person or entity that conflict\nwith Employee’s obligations to the Company under this Agreement.\n4. Proprietary Information or Trade Secrets of Others. Employee will not disclose to the Company or its Affiliates, or use, or induce\nthe Company to use, any proprietary information or trade secrets of others. Employee represents and warrants that he/she has returned all\nproperty and Confidential Information belonging to all prior employers.\n5. Delivery of Documents and Data Upon Termination. In the event of termination of Employee’s employment with the Company for\nany reason whatsoever, Employee agrees, promptly and without request, to deliver to and inform the Company of all documents and data\npertaining to his/her employment, and the Confidential Information of the Company, whether prepared by Employee or otherwise coming into\nhis/her possession or control. Employee will not retain any written or other tangible material, or copies thereof, containing any information\nconcerning or disclosing any of the Confidential Information of the Company. Employee recognizes that such unauthorized taking of the\nCompany’s trade secrets can result in criminal penalties and civil liability under the Uniform Trade Secrets Act; and that willful misappropriation\nmay result in fines and an award against Employee for damages as well as the Company’s attorneys’ fees in collecting such damages, which shall\nbe in addition to, and shall not supersede, the Company’s available remedies pursuant to state and federal law.\n6. Equitable Remedies. Employee recognizes and agrees that the violation, breach or threatened violation or breach of any term,\nprovision, or condition of this Agreement may cause irreparable damage to the Company which is difficult to calculate, and that the award of any\nsum or damages may not be adequate relief to the Company. Employee therefore agrees that, in addition to all of the remedies available in the\nevent of any actual or threatened violation or breach of this Agreement, the Company shall have the right to injunctive and other equitable relief.\nHowever, no specification in this Agreement of a specific legal or equitable remedy shall be construed as a waiver of or prohibition against the\npursuit of other legal or equitable remedies in the event of the actual or threatened violation or breach of a provision of this Agreement.\n7. Cumulative Remedies. Each and all of the several rights and remedies provided for in this Agreement shall be cumulative. No one\nright or remedy shall be exclusive of the others, or of any right or remedy allowed in law or in equity. No waiver or indulgence by the Company\nof any failure by Employee to keep or perform any promise or condition of this\n-3-\nAgreement shall be a waiver of any preceding or succeeding breach of the same, or any other promise or condition. No waiver by the Company\nof any right shall be construed as a waiver of any other right. The Company shall not be required to give notice to enforce strict adherence to all\nterms of this Agreement.\n8. Attorneys’ Fees. If any action is necessary to enforce this Agreement, the prevailing party shall be entitled to recover its attorneys’\nfees, costs, and expenses.\n9. Material Condition of Employment. Employee acknowledges and agrees that the protections set forth in this Agreement are a\nmaterial condition to his/her employment with and compensation by the Company.\n10. Amendment and Binding Effect. This Agreement may not be amended except by an instrument in writing signed by both parties.\nThis Agreement shall be binding on the heirs, executors, administrators, and other legal representatives and assigns of Employee, and is for the\nbenefit of the Company and its successors and assigns.\n11. Governing Law. The laws of the State of Nevada (without giving effect to choice of law or conflict of law principles) shall govern\nthe validity, construction, performance and effect of this Agreement, except to the extent governed by federal law, irrespective of the fact that one\nor more of the parities now is, or may become, a resident or citizen of a different state or country. The parties hereby expressly submit to the\npersonal jurisdiction of the court or arbitral forum located in Clark County, State of Nevada, and waive any objection or defense based on\npersonal jurisdiction or venue that might otherwise be asserted to proceeding in such forum(s).\n12. Entire Understanding. This Agreement expresses the entire understanding of the parties about the described subject matter.\n13. Severability. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid, in\nwhole or in part, for any reason whatsoever, the validity and enforceability of the remaining provisions, or portions of them, will not be affected.\n14. Employment at Will. Employment and compensation can be terminated, with or without cause, and with or without notice, at any\ntime, at the option of the Company or the Employee. Nothing contained in this Confidentiality Agreement shall limit or otherwise alter the\nforegoing.\n15. Headings. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, define or\nlimit the scope, intent or interpretation of this Agreement.\n-4-\nAGS LLC\nBy: /s/ Robert Miodunski\n“Company”\n/s/ Curt Mayer\n(Signature of Employee)\nCurt Mayer\n“Employee”\n-5-
+8ab95263bfe4f3d9d8080b97ee5f9781.pdf	effective_date jurisdiction party term	EX-2.2 3 dex22.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT - MONROE MILSTEIN\nExhibit 2.2\nBURLINGTON COAT FACTORY HOLDINGS, INC.\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made as of April 13, 2006 between Burlington Coat Factory Holdings, Inc., a Delaware corporation (the\n“Company”), and Monroe Milstein (“Seller”). For purposes of this Agreement, unless the context requires otherwise, the term “Company” shall\ninclude all subsidiaries of the Company, including, without limitation, Burlington Coat Factory Warehouse Corporation, a Delaware corporation\n(“BlueBlazer”) and its subsidiaries.\nWHEREAS, Seller pursuant to that certain Agreement and Plan of Merger by and among the Company, BCFWC Mergersub, Inc., a\nDelaware corporation (the “Merger Sub”) and BlueBlazer, dated as of January 18, 2006 (the “Merger Agreement”) has received from the Company\nthe right to receive certain cash consideration in exchange for certain securities of BlueBlazer.\nWHEREAS, at the Effective Time (as defined in the Merger Agreement) MergerSub will merge with and into BlueBlazer pursuant to the\nMerger Agreement, with BlueBlazer being the surviving corporation of such merger, and the Company will own all issued and outstanding shares of\ncapital stock of BlueBlazer.\nWHEREAS, the Company and Seller desire to enter into an agreement setting forth the obligation of Seller to refrain from competing\nwith the Company for a period of time after the consummation of the transactions contemplated by the Merger Agreement as provided herein.\nWHEREAS, the execution and delivery of this Agreement by Seller is a condition to the consummation of the transactions contemplated\nby the Merger Agreement, and Seller is entering into this Agreement to induce the Company and the Merger Sub to consummate the transactions\ncontemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the Company and Seller hereby agree as follows:\n1. Nondisclosure and Nonuse of Confidential Information. For a period of three (3) years following the date hereof, Seller shall keep\nsecret and hold in confidence, and shall not use for its benefit, any and all information relating to the Company that is proprietary to the Company,\nother than the following: (i) information that has become generally available to the public other than as a result of a disclosure by Seller in breach of\nthis Agreement and (ii) information that is required to be disclosed by any applicable law. In connection with disclosure of confidential information\nunder clause (ii) above, Seller shall give the Company timely prior notice of the anticipated disclosure and the parties shall cooperate in designing\nreasonable procedural and other safeguards to preserve, to the maximum extent possible, the confidentiality of such material.\n2. Noncompetition.\n(a) Seller agrees that, for a period of one (1) year following the date hereof (the “Non-Compete Period”), neither Seller nor any of\nSeller’s Affiliates shall without the prior written consent of the Company, directly or indirectly, anywhere in the United States (the “Territory”)\n(i) form, acquire, operate, control, make a financial investment in, enter into any agreement pertaining to, publicly announce the launch of, or\notherwise finance, manage, participate in, consult with, become employed by or render advisory services to, any business or otherwise become\nassociated with an enterprise, the business of which is the same as, substantially similar to or otherwise competitive with the business of the\nCompany as now conducted (i.e., the business of BlueBlazer and its subsidiaries conducted or proposed to be conducted immediately prior to the\nclosing of the Merger) (a “Competing Business”), or (ii) for the purpose of conducting or engaging in a Competing Business, call upon, solicit,\nadvise or otherwise do, or attempt to do, business with any suppliers, vendors or other material business relationships of the Company. As used in\nthis Section 2 and Section 3 below, “Affiliate” of any particular person means any other person controlling, controlled by or under common control\nwith such particular person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a\nperson whether through the ownership of voting securities, contract or otherwise. Nothing herein shall prohibit Seller or any of Seller’s Affiliates\nfrom being a passive owner of not more than 3% of the outstanding stock of a corporation which is publicly traded, so long as neither Seller nor any\nof Seller’s Affiliate have an active participation in the business of such corporation.\n(b) Seller agrees that (i) the covenants set forth in this Section 2 are reasonable in temporal and geographical scope and in all other\nrespects, and (ii) the covenants contained herein have been made in order to induce the Company to enter into this Agreement and the Merger\nAgreement.\n(c) The Company and Seller intend that the covenants of this Section 2 shall be deemed to be a series of separate covenants, one for each\ncounty or province of each and every state within the Territory and one for each month of the Non-Compete Period.\n(d) If, at the time of enforcement of this Section 2, a court shall hold that the duration or scope stated herein are unreasonable under\ncircumstances then existing, the parties agree that the maximum duration or scope under such circumstances shall be substituted for the stated\nduration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by\nlaw.\n(e) Seller recognizes and affirms that in the event of its breach of any provision of this Section 2, money damages would be inadequate\nand the Company would not have an adequate remedy at law. Accordingly, Seller agrees that in the event of a breach or a threatened breach by Seller\nof any of the provisions of this Section 2, the Company, in addition and supplementary to other rights and remedies existing in its favor, may apply\nto any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any\nviolations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Seller of this\nSection 2, the Non-Compete Period shall be tolled until such breach or violation has been duly cured.\n2\n3. Nonsolicitation. For a period of three (3) years following the date hereof, Seller and each of Seller’s Affiliates shall not:\n(a) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the\nrelationship between the Company and any employee thereof; provided that the placement of any general advertisement or general solicitation to the\npublic at large shall not constitute “interference” under this clause (a);\n(b) hire directly or through another entity any person who was an employee of the Company or any of its subsidiaries as of the date\nhereof; provided that, with the Company’s prior written consent (which consent shall not unreasonably be withheld), Seller and Seller’s Affiliates\ncan hire any person who was an employee of the Company or any of its subsidiaries who has been fired by the Company or any of its subsidiaries;\nprovided further that\n(i) for the avoidance of doubt, the Company’s withholding of consent with respect to Seller’s or Seller’s Affiliate’s hiring of any\nperson shall be deemed reasonable if the Company determines in good faith that (x) the hiring of such person by Seller or Seller ’s\nAffiliates would be detrimental to the business of the Company or (y) such person has caused such firing to occur in order to circumvent\nthe restrictions of this Section 3(b),\n(ii) if Seller or any of Seller’s Affiliates wishes to hire any such person or persons, it shall so notify the Company (the “Notice’),\nwhich Notice shall set forth the identity of the former employee or employees and request the consent of the Company to such hiring,\nand, if the Company fails to notify the Seller or the notifying Affiliate within ten (10) days of the Company’s receipt of the Notice to it\nthat it is withholding its consent, the Company shall be deemed to have granted such consent and the Seller or the notifying Affiliate may\nproceed to hire such former employee or employees; and\n(iii) nothing herein shall prevent a member of the Milstein family from hiring any other member of the Milstein family; or\n(c) induce or attempt to induce any supplier, vendor or other business relation of the Company to cease doing business with the\nCompany, or in any way interfere with the relationship between any such supplier, vendor, or other business relation and the Company (including,\nwithout limitation, making any negative statements or communications concerning the Company); provided that (x) the hiring of any legal counsel,\naccountant or financial advisor, and (y) following the end of the Non-Compete Period, the operation of any competitive business in the ordinary\ncourse of business, in each case, in and of itself, shall not constitute “interference” under this Section 3(c).\n4. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent via facsimile,\nmailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the\nrecipient at the address below indicated:\nTo the Company:\nBurlington Coat Factory Holdings, Inc.\nBain Capital Partners, LLC\n111 Huntington Avenue\nBoston, Massachusetts 02199\nAttention: Jordan Hitch\nFacsimile No.: (617) 516-2010\n3\nwith copies (which shall not constitute notice to the Company) to:\nKirkland & Ellis\nCiticorp Center\n153 East 53rd Street\nNew York, NY 10022-4675\nAttention: Lance Balk, Esq.\nFacsimile: (212) 446-4900\nTo Seller:\nMonroe G. Milstein\n96-01 Collins Avenue PH 301\nBal Harbour, Florida 33154\nwith copies (which shall not constitute notice to the Seller) to:\nPhillips Nizer LLP\n666 Fifth Avenue\n28th Floor\nNew York, NY 10103\nAttention: Tiberio Schwartz\nFacsimile: (212) 262-5152\nor such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been given when received by the intended recipient thereof.\n5. General Provisions.\n(a) Absence of Conflicting Agreements. Seller hereby warrants and covenants that (i) Seller’s execution, delivery and performance of\nthis Agreement do not and shall not result in a breach of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree\nto which Seller is subject and (ii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding\nobligation of Seller, enforceable in accordance with its terms.\n(b) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under\n4\nany applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other\njurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision\nhad never been contained herein. The parties agree that a court of competent jurisdiction making a determination of the invalidity or unenforceability\nof any term or provision of Section 2 of this Agreement shall have the power to reduce the scope, duration or area of any such term or provision, to\ndelete specific words or phrases or to replace any invalid or unenforceable term or provision in Section 2 with a term or provision that is valid and\nenforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be\nenforceable as so modified.\n(c) Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith\nembody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or\nrepresentations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.\n(d) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(e) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and Seller and their respective successors and assigns; provided, that the rights and obligations of Seller under this\nAgreement may not be assigned (except in connection with a liquidation or dissolution of Seller) or delegated without the prior written consent of\nthe Company.\n(f) Choice of Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be\ngoverned by, and construed in accordance with, the internal law, and not the law of conflicts, of the State of New York, without giving effect to any\nchoice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of\nthe laws of any jurisdiction other than the State of New York.\n(g) Waiver of Jury Trial. EACH OF THE COMPANY AND SELLER HEREBY IRREVOCABLY WAIVES ANY AND ALL\nRIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR\nTHE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.\n(h) Jurisdiction. Each of the parties hereto submits to the jurisdiction of any state or federal court sitting in New York, New York, in any\naction or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and\ndetermined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly\nwaives any claim of improper venue and any claim that such courts are an inconvenient forum. Each of the parties hereby irrevocably consent to the\nservice of process of any of the aforementioned courts in any\n5\nsuch suit, action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid and return receipt requested, to its\naddress set forth in Section 4, such service to become effective 10 days after such mailing.\n(i) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the\nevent an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no\npresumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.\nThe word “including” shall mean including without limitation.\n(j) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns\nand nothing herein expressed or implied shall give or be construed to give any person, other than the parties hereto and such permitted successors\nand assigns, any legal or equitable rights hereunder.\n(k) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover\ndamages and costs (including reasonable attorneys fees) caused by any breach of any provision of this Agreement and to exercise all other rights\nexisting in its favor. The parties hereto agree and acknowledge that Seller’s breach of any term or provision of this Agreement shall materially and\nirreparably harm the Company, that money damages shall accordingly not be an adequate remedy for any breach of the provisions of this Agreement\nby Seller and that the Company in its sole discretion and in addition to any other remedies it may have at law or in equity may apply to any court of\nlaw or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to\nenforce or prevent any violations of the provisions of this Agreement. Nothing herein is intended to entitle any party hereto to money damages\nwithout proving such damages.\n(l) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and Seller.\n*****\n6\nIN WITNESS WHEREOF, the parties hereto have executed this Non-Competition and Confidentiality Agreement on the date first\nwritten above.\nBURLINGTON COAT FACTORY\nHOLDINGS, INC.\nBy: /s/ John Tudor\nName: John Tudor\nTitle: Vice President\n/s/ Monroe G. Milstein\nMonroe G. Milstein	EX-2.2 3 dex22.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT - MONROE MILSTEIN\nExhibit 2.2\nBURLINGTON COAT FACTORY HOLDINGS, INC.\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made as of April 13, 2006 between Burlington Coat Factory Holdings, Inc., a Delaware corporation (the\n“Company”), and Monroe Milstein (“Seller”). For purposes of this Agreement, unless the context requires otherwise, the term “Company” shall\ninclude all subsidiaries of the Company, including, without limitation, Burlington Coat Factory Warehouse Corporation, a Delaware corporation\n(“BlueBlazer”) and its subsidiaries.\nWHEREAS, Seller pursuant to that certain Agreement and Plan of Merger by and among the Company, BCFWC Mergersub, Inc., a\nDelaware corporation (the “Merger Sub”) and BlueBlazer, dated as of January 18, 2006 (the “Merger Agreement”) has received from the Company\nthe right to receive certain cash consideration in exchange for certain securities of BlueBlazer.\nWHEREAS, at the Effective Time (as defined in the Merger Agreement) MergerSub will merge with and into BlueBlazer pursuant to the\nMerger Agreement, with BlueBlazer being the surviving corporation of such merger, and the Company will own all issued and outstanding shares of\ncapital stock of BlueBlazer.\nWHEREAS, the Company and Seller desire to enter into an agreement setting forth the obligation of Seller to refrain from competing\nwith the Company for a period of time after the consummation of the transactions contemplated by the Merger Agreement as provided herein.\nWHEREAS, the execution and delivery of this Agreement by Seller is a condition to the consummation of the transactions contemplated\nby the Merger Agreement, and Seller is entering into this Agreement to induce the Company and the Merger Sub to consummate the transactions\ncontemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the Company and Seller hereby agree as follows:\n1. Nondisclosure and Nonuse of Confidential Information. For a period of three (3) years following the date hereof, Seller shall keep\nsecret and hold in confidence, and shall not use for its benefit, any and all information relating to the Company that is proprietary to the Company,\nother than the following: (i) information that has become generally available to the public other than as a result of a disclosure by Seller in breach of\nthis Agreement and (ii) information that is required to be disclosed by any applicable law. In connection with disclosure of confidential information\nunder clause (ii) above, Seller shall give the Company timely prior notice of the anticipated disclosure and the parties shall cooperate in designing\nreasonable procedural and other safeguards to preserve, to the maximum extent possible, the confidentiality of such material.\n2. Noncompetition.\n(a) Seller agrees that, for a period of one (1) year following the date hereof (the “Non-Compete Period”), neither Seller nor any of\nSeller’s Affiliates shall without the prior written consent of the Company, directly or indirectly, anywhere in the United States (the “Territory”)\n(i) form, acquire, operate, control, make a financial investment in, enter into any agreement pertaining to, publicly announce the launch of, or\notherwise finance, manage, participate in, consult with, become employed by or render advisory services to, any business or otherwise become\nassociated with an enterprise, the business of which is the same as, substantially similar to or otherwise competitive with the business of the\nCompany as now conducted (i.e., the business of BlueBlazer and its subsidiaries conducted or proposed to be conducted immediately prior to the\nclosing of the Merger) (a “Competing Business™), or (ii) for the purpose of conducting or engaging in a Competing Business, call upon, solicit,\nadvise or otherwise do, or attempt to do, business with any suppliers, vendors or other material business relationships of the Company. As used in\nthis Section 2 and Section 3 below, “Affiliate” of any particular person means any other person controlling, controlled by or under common control\nwith such particular person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a\nperson whether through the ownership of voting securities, contract or otherwise. Nothing herein shall prohibit Seller or any of Seller’s Affiliates\nfrom being a passive owner of not more than 3% of the outstanding stock of a corporation which is publicly traded, so long as neither Seller nor any\nof Seller’s Affiliate have an active participation in the business of such corporation.\n(b) Seller agrees that (i) the covenants set forth in this Section 2 are reasonable in temporal and geographical scope and in all other\nrespects, and (ii) the covenants contained herein have been made in order to induce the Company to enter into this Agreement and the Merger\nAgreement.\n(c) The Company and Seller intend that the covenants of this Section 2 shall be deemed to be a series of separate covenants, one for each\ncounty or province of each and every state within the Territory and one for each month of the Non-Compete Period.\n(d) If, at the time of enforcement of this Section 2, a court shall hold that the duration or scope stated herein are unreasonable under\ncircumstances then existing, the parties agree that the maximum duration or scope under such circumstances shall be substituted for the stated\nduration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by\nlaw.\n(e) Seller recognizes and affirms that in the event of its breach of any provision of this Section 2, money damages would be inadequate\nand the Company would not have an adequate remedy at law. Accordingly, Seller agrees that in the event of a breach or a threatened breach by Seller\nof any of the provisions of this Section 2, the Company, in addition and supplementary to other rights and remedies existing in its favor, may apply\nto any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any\nviolations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Seller of this\nSection 2, the Non-Compete Period shall be tolled until such breach or violation has been duly cured.\n2\n3. Nonsolicitation. For a period of three (3) years following the date hereof, Seller and each of Seller’s Affiliates shall not:\n(a) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the\nrelationship between the Company and any employee thereof; provided that the placement of any general advertisement or general solicitation to the\npublic at large shall not constitute “interference” under this clause (a);\n \n(b) hire directly or through another entity any person who was an employee of the Company or any of its subsidiaries as of the date\nhereof; provided that, with the Company’s prior written consent (which consent shall not unreasonably be withheld), Seller and Seller’s Affiliates\ncan hire any person who was an employee of the Company or any of its subsidiaries who has been fired by the Company or any of its subsidiaries;\nprovided further that\n \n(i) for the avoidance of doubt, the Company’s withholding of consent with respect to Seller’s or Seller’s Affiliate’s hiring of any\nperson shall be deemed reasonable if the Company determines in good faith that (x) the hiring of such person by Seller or Seller’s\nAffiliates would be detrimental to the business of the Company or (y) such person has caused such firing to occur in order to circumvent\nthe restrictions of this Section 3(b),\n(ii) if Seller or any of Seller’s Affiliates wishes to hire any such person or persons, it shall so notify the Company (the “Notice’),\nwhich Notice shall set forth the identity of the former employee or employees and request the consent of the Company to such hiring,\nand, if the Company fails to notify the Seller or the notifying Affiliate within ten (10) days of the Company’s receipt of the Notice to it\nthat it is withholding its consent, the Company shall be deemed to have granted such consent and the Seller or the notifying Affiliate may\nproceed to hire such former employee or employees; and\n(iii) nothing herein shall prevent a member of the Milstein family from hiring any other member of the Milstein family; or\n(c) induce or attempt to induce any supplier, vendor or other business relation of the Company to cease doing business with the\nCompany, or in any way interfere with the relationship between any such supplier, vendor, or other business relation and the Company (including,\nwithout limitation, making any negative statements or communications concerning the Company); provided that (x) the hiring of any legal counsel,\naccountant or financial advisor, and (y) following the end of the Non-Compete Period, the operation of any competitive business in the ordinary\ncourse of business, in each case, in and of itself, shall not constitute “interference” under this Section 3(c).\n \n4. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent via facsimile,\nmailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the\nrecipient at the address below indicated:\nTo the Company:\nBurlington Coat Factory Holdings, Inc.\nBain Capital Partners, LLC\n111 Huntington Avenue\nBoston, Massachusetts 02199\nAttention: Jordan Hitch\nFacsimile No.: (617) 516-2010\nKirkland & Ellis\nCiticorp Center\n153 East 53rd Street\nNew York, NY 10022-4675\nAttention: Lance Balk, Esq.\nFacsimile: (212) 446-4900\nTo Seller:\nMonroe G. Milstein\n96-01 Collins Avenue PH 301\nBal Harbour, Florida 33154\nwith copies (which shall not constitute notice to the Seller) to:\nPhillips Nizer LLP\n666 Fifth Avenue\n28™ Floor\nNew York, NY 10103\nAttention: Tiberio Schwartz\nFacsimile: (212) 262-5152\nor such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party. Any notice under this Agreement shall be deemed to have been given when received by the intended recipient thereof. 5. General Provisions. (a) Absence of Conflicting Agreements. Seller hereby warrants and covenants that (i) Seller’s execution, delivery and performance of this Agreement do not and shall not result in a breach of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree to which Seller is subject and (ii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding obligation of Seller, enforceable in accordance with its terms. (b) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under 4\nany applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other\njurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision\nhad never been contained herein. The parties agree that a court of competent jurisdiction making a determination of the invalidity or unenforceability\nof any term or provision of Section 2 of this Agreement shall have the power to reduce the scope, duration or area of any such term or provision, to\ndelete specific words or phrases or to replace any invalid or unenforceable term or provision in Section 2 with a term or provision that is valid and\nenforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be\nenforceable as so modified.\n(c) Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith\nembody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or\nrepresentations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.\n(d) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(e) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and Seller and their respective successors and assigns; provided, that the rights and obligations of Seller under this\nAgreement may not be assigned (except in connection with a liquidation or dissolution of Seller) or delegated without the prior written consent of\nthe Company.\n(f) Choice of Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be\ngoverned by, and construed in accordance with, the internal law, and not the law of conflicts, of the State of New York, without giving effect to any\nchoice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of\nthe laws of any jurisdiction other than the State of New York.\n(g) Waiver of Jury Trial. EACH OF THE COMPANY AND SELLER HEREBY IRREVOCABLY WAIVES ANY AND ALL\nRIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR\nTHE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.\n(h) Jurisdiction. Each of the parties hereto submits to the jurisdiction of any state or federal court sitting in New York, New York, in any\naction or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and\ndetermined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly\nwaives any claim of improper venue and any claim that such courts are an inconvenient forum. Each of the parties hereby irrevocably consent to the\nservice of process of any of the aforementioned courts in any\nsuch suit, action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid and return receipt requested, to its\naddress set forth in Section 4, such service to become effective 10 days after such mailing.\n \n(i) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the\nevent an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no\npresumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.\nThe word “including” shall mean including without limitation.\n(j) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns\nand nothing herein expressed or implied shall give or be construed to give any person, other than the parties hereto and such permitted successors\nand assigns, any legal or equitable rights hereunder.\n(k) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover\ndamages and costs (including reasonable attorneys fees) caused by any breach of any provision of this Agreement and to exercise all other rights\nexisting in its favor. The parties hereto agree and acknowledge that Seller’s breach of any term or provision of this Agreement shall materially and\nirreparably harm the Company, that money damages shall accordingly not be an adequate remedy for any breach of the provisions of this Agreement\nby Seller and that the Company in its sole discretion and in addition to any other remedies it may have at law or in equity may apply to any court of\nlaw or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to\nenforce or prevent any violations of the provisions of this Agreement. Nothing herein is intended to entitle any party hereto to money damages\nwithout proving such damages.\n(1) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and Seller.\nk ok ok ok K\nIN WITNESS WHEREOF, the parties hereto have executed this Non-Competition and Confidentiality Agreement on the date first\nwritten above.\nBURLINGTON COAT FACTORY\nHOLDINGS, INC.\nBy:  /s/ John Tudor\nName: John Tudor\nTitle: Vice President\n/s/ Monroe G. Milstein\nMonroe G. Milstein	EX-2.2 3 dex22.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT MONROE MILSTEIN\nExhibit 2.2\nBURLINGTON COAT FACTORY HOLDINGS, INC.\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made as of April 13, 2006 between Burlington Coat Factory Holdings, Inc., a Delaware corporation (the\n"Company."), and Monroe Milstein ("Seller"). For purposes of this Agreement, unless the context requires otherwise, the term "Company." shall\ninclude all subsidiaries of the Company, including, without limitation, Burlington Coat Factory Warehouse Corporation, a Delaware corporation\n("BlueBlazer") and its subsidiaries.\nWHEREAS, Seller pursuant to that certain Agreement and Plan of Merger by and among the Company, BCFWC Mergersub, Inc., a\nDelaware corporation (the "Merger Sub") and BlueBlazer, dated as of January 18, 2006 (the "Merger Agreement") has received from the Company\nthe right to receive certain cash consideration in exchange for certain securities of BlueBlazer.\nWHEREAS, at the Effective Time (as defined in the Merger Agreement) MergerSub will merge with and into BlueBlazer pursuant to the\nMerger Agreement, with BlueBlazer being the surviving corporation of such merger, and the Company will own all issued and outstanding shares of\ncapital stock of BlueBlazer.\nWHEREAS, the Company and Seller desire to enter into an agreement setting forth the obligation of Seller to refrain from competing\nwith the Company for a period of time after the consummation of the transactions contemplated by the Merger Agreement as provided herein.\nWHEREAS, the execution and delivery of this Agreement by Seller is a condition to the consummation of the transactions contemplated\nby\nthe Merger Agreement, and Seller is entering into this Agreement to induce the Company and the Merger Sub to consummate the transactions\ncontemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the Company and Seller hereby agree as follows:\n1. Nondisclosure and Nonuse of Confidential Information. For a period of three (3) years following the date hereof, Seller shall keep\nsecret and hold in confidence, and shall not use for its benefit, any and all information relating to the Company that is proprietary to the Company,\nother than the following: (i) information that has become generally available to the public other than as a result of a disclosure by Seller in breach\nof\nthis Agreement and (ii) information that is required to be disclosed by any applicable law. In connection with disclosure of confidential information\nunder clause (ii) above, Seller shall give the Company timely prior notice of the anticipated disclosure and the parties shall cooperate in designing\nreasonable procedural and other safeguards to preserve, to the maximum extent possible, the confidentiality of such material.\n2. Noncompetition.\n(a) Seller agrees that, for a period of one (1) year following the date hereof (the "Non-Compete Period"), neither Seller nor any of\nSeller's Affiliates shall without the prior written consent of the Company, directly or indirectly, anywhere in the United States (the "Territory.")\n(i) form, acquire, operate, control, make a financial investment in, enter into any agreement pertaining to, publicly announce the launch of, or\notherwise\nfinance, manage, participate in, consult with, become employed by or render advisory services to, any business or otherwise become\nassociated with an enterprise, the business of which is the same as, substantially similar to or otherwise competitive with the business of the\nCompany as now conducted (i.e., the business of BlueBlazer and its subsidiaries conducted or proposed to be conducted immediately prior to the\nclosing of the Merger) (a "Competing Business"), or (ii) for the purpose of conducting or engaging in a Competing Business, call upon, solicit,\nadvise or otherwise do, or attempt to do, business with any suppliers, vendors or other material business relationships of the Company. As used in\nthis Section 2 and Section 3 below, "Affiliate" of any particular person means any other person controlling, controlled by or under common control\nwith such particular person, where "control" means the possession, directly or indirectly, of the power to direct the management and policies of a\nperson whether through the ownership of voting securities, contract or otherwise. Nothing herein shall prohibit Seller or any of Seller's Affiliates\nfrom being a passive owner of not more than 3% of the outstanding stock of a corporation which is publicly traded, so long as neither Seller nor\nany\nof Seller's Affiliate have an active participation in the business of such corporation.\n(b) Seller agrees that (i) the covenants set forth in this Section 2 are reasonable in temporal and geographical scope and in all other\nrespects, and (ii) the covenants contained herein have been made in order to induce the Company to enter into this Agreement and the Merger\nAgreement.\n(c) The Company and Seller intend that the covenants of this Section 2 shall be deemed to be a series of separate covenants, one for each\ncounty or province of each and every state within the Territory and one for each month of the Non-Compete Period.\n(d) If, at the time of enforcement of this Section 2, a court shall hold that the duration or scope stated herein are unreasonable under\ncircumstances then existing, the parties agree that the maximum duration or scope under such circumstances shall be substituted for the stated\nduration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by\nlaw.\n(e) Seller recognizes and affirms that in the event of its breach of any provision of this Section 2, money damages would be inadequate\nand the Company would not have an adequate remedy at law. Accordingly, Seller agrees that in the event of a breach or a threatened breach by Seller\nof any of the provisions of this Section 2, the Company, in addition and supplementary to other rights and remedies existing in its favor, may apply\nto any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any\nviolations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Seller of this\nSection 2, the Non-Compete Period shall be tolled until such breach or violation has been duly cured.\n2\n3. Nonsolicitation. For a period of three (3) years following the date hereof, Seller and each of Seller's Affiliates shall not:\n(a) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the\nrelationship between the Company and any employee thereof; provided that the placement of any general advertisement or general solicitation to the\npublic at large shall not constitute "interference" under this clause (a);\n(b) hire directly or through another entity any person who was an employee of the Company or any of its subsidiaries as of the date\nhereof; provided that, with the Company's prior written consent (which consent shall not unreasonably be withheld), Seller and Seller's Affiliates\ncan hire any person who was an employee of the Company or any of its subsidiaries who has been fired by the Company or any of its subsidiaries;\nprovided further that\n(i) for the avoidance of doubt, the Company's withholding of consent with respect to Seller's or Seller's Affiliate's hiring of any\nperson shall be deemed reasonable if the Company determines in good faith that (x) the hiring of such person by Seller or Seller's\nAffiliates would be detrimental to the business of the Company or (y) such person has caused such firing to occur in order to circumvent\nthe restrictions of this Section 3(b),\n(ii) if Seller or any of Seller's Affiliates wishes to hire any such person or persons, it shall SO notify the Company (the "Notice'),\nwhich Notice shall set forth the identity of the former employee or employees and request the consent of the Company to such hiring,\nand, if the Company fails to notify the Seller or the notifying Affiliate within ten (10) days of the Company's receipt of the Notice to it\nthat it is withholding its consent, the Company shall be deemed to have granted such consent and the Seller or the notifying Affiliate may\nproceed to hire such former employee or employees; and\n(iii) nothing herein shall prevent a member of the Milstein family from hiring any other member of the Milstein family; or\n(c) induce or attempt to induce any supplier, vendor or other business relation of the Company to cease doing business with the\nCompany,\nor in any way interfere with the relationship between any such supplier, vendor, or other business relation and the Company (including,\nwithout limitation, making any negative statements or communications concerning the Company); provided that (x) the hiring of any legal counsel,\naccountant or financial advisor, and (y) following the end of the Non-Compete Period, the operation of any competitive business in the ordinary\ncourse of business, in each case, in and of itself, shall not constitute "interference" under this Section 3(c).\n4. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent via facsimile,\nmailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the\nrecipient at the address below indicated:\nTo the Company:\nBurlington Coat Factory Holdings, Inc.\nBain Capital Partners, LLC\n111 Huntington Avenue\nBoston, Massachusetts 02199\nAttention: Jordan Hitch\nFacsimile No.: (617) 516-2010\n3\nwith copies (which shall not constitute notice to the Company.) to:\nKirkland & Ellis\nCiticorp Center\n153 East 53rd Street\nNew York, NY 10022-4675\nAttention: Lance Balk, Esq.\nFacsimile: (212) 446-4900\nTo Seller:\nMonroe G. Milstein\n96-01 Collins Avenue PH 301\nBal Harbour, Florida 33154\nwith copies (which shall not constitute notice to the Seller) to:\nPhillips Nizer LLP\n666 Fifth Avenue\n28th Floor\nNew York, NY 10103\nAttention: Tiberio Schwartz\nFacsimile: (212) 262-5152\nor such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been given when received by the intended recipient thereof.\n5. General Provisions.\n(a) Absence of Conflicting Agreements. Seller hereby warrants and covenants that (i) Seller's execution, delivery and performance of\nthis\nAgreement do not and shall not result in a breach of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree\nto which Seller is subject and (ii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding\nobligation of Seller, enforceable in accordance with its terms.\n(b) Severability.. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under\n4\nany applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other\njurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision\nhad never been contained herein. The parties agree that a court of competent jurisdiction making a determination of the invalidity or unenforceability\nof any term or provision of Section 2 of this Agreement shall have the power to reduce the scope, duration or area of any such term or provision, to\ndelete specific words or phrases or to replace any invalid or unenforceable term or provision in Section 2 with a term or provision that is valid and\nenforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be\nenforceable as so modified.\n(c) Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith\nembody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or\nrepresentations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.\n(d) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(e) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and Seller and their respective successors and assigns; provided, that the rights and obligations of Seller under this\nAgreement may not be assigned (except in connection with a liquidation or dissolution of Seller) or delegated without the prior written consent of\nthe Company.\n(f) Choice of Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be\ngoverned by, and construed in accordance with, the internal law, and not the law of conflicts, of the State of New York, without giving effect to any\nchoice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application\nof\nthe laws of any jurisdiction other than the State of New York.\n(g) Waiver of Jury Trial. EACH OF THE COMPANY AND SELLER HEREBY IRREVOCABLY WAIVES ANY AND ALL\nRIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR\nTHE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.\n(h) Jurisdiction. Each of the parties hereto submits to the jurisdiction of any state or federal court sitting in New York, New York, in any\naction or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and\ndetermined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly\nwaives any claim of improper venue and any claim that such courts are an inconvenient forum. Each of the parties hereby irrevocably consent to the\nservice of process of any of the aforementioned courts in any\n5\nsuch suit, action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid and return receipt requested, to its\naddress set forth in Section 4, such service to become effective 10 days after such mailing\n(i) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the\nevent an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no\npresumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.\nThe word "including" shall mean including without limitation.\n(j) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns\nand nothing herein expressed or implied shall give or be construed to give any person, other than the parties hereto and such permitted successors\nand assigns, any legal or equitable rights hereunder.\n(k) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover\ndamages and costs (including reasonable attorneys fees) caused by any breach of any provision of this Agreement and to exercise all other rights\nexisting in its favor. The parties hereto agree and acknowledge that Seller's breach of any term or provision of this Agreement shall materially and\nirreparably harm the Company, that money damages shall accordingly not be an adequate remedy for any breach of the provisions of this Agreement\nby\nSeller and that the Company in its sole discretion and in addition to any other remedies it may have at law or in equity may apply to any court of\nlaw or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to\nenforce or prevent any violations of the provisions of this Agreement. Nothing herein is intended to entitle any party hereto to money damages\nwithout proving such damages.\n(I) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and Seller.\n* * * * *\n6\nIN WITNESS WHEREOF, the parties hereto have executed this Non-Competition and Confidentiality Agreement on the date first\nwritten above.\nBURLINGTON COAT FACTORY\nHOLDINGS, INC.\nBy:\n/s/ John Tudor\nName: John Tudor\nTitle: Vice President\n/s/ Monroe G. Milstein\nMonroe G. Milstein	EX-2.2 3 dex22.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT - MONROE MILSTEIN\nExhibit 2.2\nBURLINGTON COAT FACTORY HOLDINGS, INC.\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made as of April 13, 2006 between Burlington Coat Factory Holdings, Inc., a Delaware corporation (the\n“Company”), and Monroe Milstein (“Seller”). For purposes of this Agreement, unless the context requires otherwise, the term “Company” shall\ninclude all subsidiaries of the Company, including, without limitation, Burlington Coat Factory Warehouse Corporation, a Delaware corporation\n(“BlueBlazer”) and its subsidiaries.\nWHEREAS, Seller pursuant to that certain Agreement and Plan of Merger by and among the Company, BCFWC Mergersub, Inc., a\nDelaware corporation (the “Merger Sub”) and BlueBlazer, dated as of January 18, 2006 (the “Merger Agreement”) has received from the Company\nthe right to receive certain cash consideration in exchange for certain securities of BlueBlazer.\nWHEREAS, at the Effective Time (as defined in the Merger Agreement) MergerSub will merge with and into BlueBlazer pursuant to the\nMerger Agreement, with BlueBlazer being the surviving corporation of such merger, and the Company will own all issued and outstanding shares of\ncapital stock of BlueBlazer.\nWHEREAS, the Company and Seller desire to enter into an agreement setting forth the obligation of Seller to refrain from competing\nwith the Company for a period of time after the consummation of the transactions contemplated by the Merger Agreement as provided herein.\nWHEREAS, the execution and delivery of this Agreement by Seller is a condition to the consummation of the transactions contemplated\nby the Merger Agreement, and Seller is entering into this Agreement to induce the Company and the Merger Sub to consummate the transactions\ncontemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the Company and Seller hereby agree as follows:\n1. Nondisclosure and Nonuse of Confidential Information. For a period of three (3) years following the date hereof, Seller shall keep\nsecret and hold in confidence, and shall not use for its benefit, any and all information relating to the Company that is proprietary to the Company,\nother than the following: (i) information that has become generally available to the public other than as a result of a disclosure by Seller in breach of\nthis Agreement and (ii) information that is required to be disclosed by any applicable law. In connection with disclosure of confidential information\nunder clause (ii) above, Seller shall give the Company timely prior notice of the anticipated disclosure and the parties shall cooperate in designing\nreasonable procedural and other safeguards to preserve, to the maximum extent possible, the confidentiality of such material.\n2. Noncompetition.\n(a) Seller agrees that, for a period of one (1) year following the date hereof (the “Non-Compete Period”), neither Seller nor any of\nSeller’s Affiliates shall without the prior written consent of the Company, directly or indirectly, anywhere in the United States (the “Territory”)\n(i) form, acquire, operate, control, make a financial investment in, enter into any agreement pertaining to, publicly announce the launch of, or\notherwise finance, manage, participate in, consult with, become employed by or render advisory services to, any business or otherwise become\nassociated with an enterprise, the business of which is the same as, substantially similar to or otherwise competitive with the business of the\nCompany as now conducted (i.e., the business of BlueBlazer and its subsidiaries conducted or proposed to be conducted immediately prior to the\nclosing of the Merger) (a “Competing Business”), or (ii) for the purpose of conducting or engaging in a Competing Business, call upon, solicit,\nadvise or otherwise do, or attempt to do, business with any suppliers, vendors or other material business relationships of the Company. As used in\nthis Section 2 and Section 3 below, “Affiliate” of any particular person means any other person controlling, controlled by or under common control\nwith such particular person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a\nperson whether through the ownership of voting securities, contract or otherwise. Nothing herein shall prohibit Seller or any of Seller’s Affiliates\nfrom being a passive owner of not more than 3% of the outstanding stock of a corporation which is publicly traded, so long as neither Seller nor any\nof Seller’s Affiliate have an active participation in the business of such corporation.\n(b) Seller agrees that (i) the covenants set forth in this Section 2 are reasonable in temporal and geographical scope and in all other\nrespects, and (ii) the covenants contained herein have been made in order to induce the Company to enter into this Agreement and the Merger\nAgreement.\n(c) The Company and Seller intend that the covenants of this Section 2 shall be deemed to be a series of separate covenants, one for each\ncounty or province of each and every state within the Territory and one for each month of the Non-Compete Period.\n(d) If, at the time of enforcement of this Section 2, a court shall hold that the duration or scope stated herein are unreasonable under\ncircumstances then existing, the parties agree that the maximum duration or scope under such circumstances shall be substituted for the stated\nduration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by\nlaw.\n(e) Seller recognizes and affirms that in the event of its breach of any provision of this Section 2, money damages would be inadequate\nand the Company would not have an adequate remedy at law. Accordingly, Seller agrees that in the event of a breach or a threatened breach by Seller\nof any of the provisions of this Section 2, the Company, in addition and supplementary to other rights and remedies existing in its favor, may apply\nto any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any\nviolations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Seller of this\nSection 2, the Non-Compete Period shall be tolled until such breach or violation has been duly cured.\n2\n3. Nonsolicitation. For a period of three (3) years following the date hereof, Seller and each of Seller’s Affiliates shall not:\n(a) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the\nrelationship between the Company and any employee thereof; provided that the placement of any general advertisement or general solicitation to the\npublic at large shall not constitute “interference” under this clause (a);\n(b) hire directly or through another entity any person who was an employee of the Company or any of its subsidiaries as of the date\nhereof; provided that, with the Company’s prior written consent (which consent shall not unreasonably be withheld), Seller and Seller’s Affiliates\ncan hire any person who was an employee of the Company or any of its subsidiaries who has been fired by the Company or any of its subsidiaries;\nprovided further that\n(i) for the avoidance of doubt, the Company’s withholding of consent with respect to Seller’s or Seller’s Affiliate’s hiring of any\nperson shall be deemed reasonable if the Company determines in good faith that (x) the hiring of such person by Seller or Seller ’s\nAffiliates would be detrimental to the business of the Company or (y) such person has caused such firing to occur in order to circumvent\nthe restrictions of this Section 3(b),\n(ii) if Seller or any of Seller’s Affiliates wishes to hire any such person or persons, it shall so notify the Company (the “Notice’),\nwhich Notice shall set forth the identity of the former employee or employees and request the consent of the Company to such hiring,\nand, if the Company fails to notify the Seller or the notifying Affiliate within ten (10) days of the Company’s receipt of the Notice to it\nthat it is withholding its consent, the Company shall be deemed to have granted such consent and the Seller or the notifying Affiliate may\nproceed to hire such former employee or employees; and\n(iii) nothing herein shall prevent a member of the Milstein family from hiring any other member of the Milstein family; or\n(c) induce or attempt to induce any supplier, vendor or other business relation of the Company to cease doing business with the\nCompany, or in any way interfere with the relationship between any such supplier, vendor, or other business relation and the Company (including,\nwithout limitation, making any negative statements or communications concerning the Company); provided that (x) the hiring of any legal counsel,\naccountant or financial advisor, and (y) following the end of the Non-Compete Period, the operation of any competitive business in the ordinary\ncourse of business, in each case, in and of itself, shall not constitute “interference” under this Section 3(c).\n4. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent via facsimile,\nmailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the\nrecipient at the address below indicated:\nTo the Company:\nBurlington Coat Factory Holdings, Inc.\nBain Capital Partners, LLC\n111 Huntington Avenue\nBoston, Massachusetts 02199\nAttention: Jordan Hitch\nFacsimile No.: (617) 516-2010\n3\nwith copies (which shall not constitute notice to the Company) to:\nKirkland & Ellis\nCiticorp Center\n153 East 53rd Street\nNew York, NY 10022-4675\nAttention: Lance Balk, Esq.\nFacsimile: (212) 446-4900\nTo Seller:\nMonroe G. Milstein\n96-01 Collins Avenue PH 301\nBal Harbour, Florida 33154\nwith copies (which shall not constitute notice to the Seller) to:\nPhillips Nizer LLP\n666 Fifth Avenue\n28th Floor\nNew York, NY 10103\nAttention: Tiberio Schwartz\nFacsimile: (212) 262-5152\nor such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been given when received by the intended recipient thereof.\n5. General Provisions.\n(a) Absence of Conflicting Agreements. Seller hereby warrants and covenants that (i) Seller’s execution, delivery and performance of\nthis Agreement do not and shall not result in a breach of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree\nto which Seller is subject and (ii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding\nobligation of Seller, enforceable in accordance with its terms.\n(b) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under\n4\nany applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other\njurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision\nhad never been contained herein. The parties agree that a court of competent jurisdiction making a determination of the invalidity or unenforceability\nof any term or provision of Section 2 of this Agreement shall have the power to reduce the scope, duration or area of any such term or provision, to\ndelete specific words or phrases or to replace any invalid or unenforceable term or provision in Section 2 with a term or provision that is valid and\nenforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be\nenforceable as so modified.\n(c) Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith\nembody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or\nrepresentations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.\n(d) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(e) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and Seller and their respective successors and assigns; provided, that the rights and obligations of Seller under this\nAgreement may not be assigned (except in connection with a liquidation or dissolution of Seller) or delegated without the prior written consent of\nthe Company.\n(f) Choice of Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be\ngoverned by, and construed in accordance with, the internal law, and not the law of conflicts, of the State of New York, without giving effect to any\nchoice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of\nthe laws of any jurisdiction other than the State of New York.\n(g) Waiver of Jury Trial. EACH OF THE COMPANY AND SELLER HEREBY IRREVOCABLY WAIVES ANY AND ALL\nRIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR\nTHE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.\n(h) Jurisdiction. Each of the parties hereto submits to the jurisdiction of any state or federal court sitting in New York, New York, in any\naction or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and\ndetermined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly\nwaives any claim of improper venue and any claim that such courts are an inconvenient forum. Each of the parties hereby irrevocably consent to the\nservice of process of any of the aforementioned courts in any\n5\nsuch suit, action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid and return receipt requested, to its\naddress set forth in Section 4, such service to become effective 10 days after such mailing.\n(i) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the\nevent an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no\npresumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.\nThe word “including” shall mean including without limitation.\n(j) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns\nand nothing herein expressed or implied shall give or be construed to give any person, other than the parties hereto and such permitted successors\nand assigns, any legal or equitable rights hereunder.\n(k) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover\ndamages and costs (including reasonable attorneys fees) caused by any breach of any provision of this Agreement and to exercise all other rights\nexisting in its favor. The parties hereto agree and acknowledge that Seller’s breach of any term or provision of this Agreement shall materially and\nirreparably harm the Company, that money damages shall accordingly not be an adequate remedy for any breach of the provisions of this Agreement\nby Seller and that the Company in its sole discretion and in addition to any other remedies it may have at law or in equity may apply to any court of\nlaw or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to\nenforce or prevent any violations of the provisions of this Agreement. Nothing herein is intended to entitle any party hereto to money damages\nwithout proving such damages.\n(l) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and Seller.\n*****\n6\nIN WITNESS WHEREOF, the parties hereto have executed this Non-Competition and Confidentiality Agreement on the date first\nwritten above.\nBURLINGTON COAT FACTORY\nHOLDINGS, INC.\nBy: /s/ John Tudor\nName: John Tudor\nTitle: Vice President\n/s/ Monroe G. Milstein\nMonroe G. Milstein
+92f9092809b0d99117cb69418566bdc2.pdf	effective_date jurisdiction party term	EXHIBIT B\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), dated as of December 12th, 2008, is between\nNetSpend Corporation, a Delaware corporation, with offices at 701 Brazos Street, suite 1200, Austin, Texas 78701 (“NetSpend”), and JTH Tax\nInc., a Delaware corporation, d/b/a “Liberty Tax Service” with offices at 1716 Corporate Landing Parkway, Virginia Beach, Virginia 23454\n(“Liberty”), and is entered into to ensure the protection and preservation of the confidential and/or proprietary nature of information that the\nParties (as hereinafter defined) contemplate disclosing to one another in order to consider possible strategic transactions involving one or more\nissuing banks (the “Transaction”).\nAs used in this Agreement, the Party disclosing Confidential Information (as hereinafter defined) is the “Disclosing Party” and\nthe Party receiving the Confidential Information is the “Receiving Party.” Each of NetSpend and Liberty and their respective subsidiaries and\naffiliates shall be referred to herein individually as a “Party” and collectively as the “Parties.”\nNOW THEREFORE, in reliance upon and in consideration of the following mutual undertakings and agreements and other\ngood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, each of the Parties agree as\nfollows:\n1.\nConfidential Information. For purposes of this Agreement, the term “Confidential Information” shall be deemed to\ninclude (i) any information (including historical financial information that has not been publicly disclosed), concerning the business, assets,\noperations, financial condition or projections, technology, customers, strategic partners and business plans and models of the Disclosing Party\nincluded in information that has been or in the future is furnished by or on behalf of the Disclosing Party and (ii) notes, analysis, compilations,\nstudies, interpretations, memoranda or other documents and writings prepared by the Receiving Party or its directors, officers, employees,\nsubsidiaries and advisors (“Representatives”) which contain, reflect or are based upon, in whole or in part, any information described in clause\n(i) above that has been or in the future is furnished by the Disclosing Party or its Representatives.\n2.\nNon-Disclosure and Use Restrictions.\nEach Party shall keep the Confidential Information of the other Party\nstrictly confidential for a period of five (5) years from the date hereof and shall not disclose such Confidential Information to any third parties,\nother than its Representatives, without the prior written consent of the Disclosing Party. Each Party shall use the Confidential Information\nreceived from the other Party only for the purpose of evaluating the Transaction (including the effects of its consummation), and in no event for\nany other commercial, business or other purpose or for any other purpose competitively, strategically or otherwise disadvantageous, directly or\nindirectly, to the Disclosing Party. No other rights, and particularly licenses, to trademarks, inventions, copyrights, patents, mask work rights, or\nany other intellectual property rights are implied or granted under this Agreement or by the delivery of Confidential Information by one Party to\nthe other Party.\n3.\nCopying.\nConfidential Information supplied by one Party shall not be reproduced by the other Party in any\nform except to the extent reasonably necessary to enable such other Party to evaluate the Transaction.\n4.\nCare. The Receiving Party shall treat Confidential Information of the Disclosing Party as proprietary and\nconfidential and shall use the same degree of care to avoid disclosure or unauthorized use of Confidential Information of the Disclosing Party as\nthe Receiving Party provides to protect its own Confidential Information but no less than reasonable care. The Receiving Party shall maintain the\nConfidential Information received from the Disclosing Party in confidence and shall retain such Confidential Information in a secure place. The\nReceiving Party shall disclose and permit access to such Confidential Information only to those of its Representatives who reasonably need to\nknow such information in order to evaluate the Transaction and with whom the Receiving Party has established practices or procedures to\nmaintain the confidence of such Confidential Information and who are informed of the confidential and proprietary nature of such information\nand the provisions of this Agreement. The Receiving Party shall be responsible for any breach of the provisions of this Agreement by any of its\nRepresentatives.\n5.\nOwnership.\nAll Confidential Information shall remain the property of the Disclosing Party, and all documents or\nother tangible or electronic media embodying such Confidential Information (including those prepared by the Receiving Party) shall be, at the\noption of the Receiving Party, either promptly returned to the Disclosing Party or destroyed after the Receiving Party’s need for it has expired or\nupon the request of the Disclosing Party. The Receiving Party’s counsel may retain one copy to be kept confidential and used solely for archival\npurposes. If destroyed, the Receiving Party shall so certify in writing to the Disclosing Party.\n6.\nLimitation.\nIt is understood that the term “Confidential Information” does not include information that:\n(a)\nhas been published or is now or becomes in the public domain without breach of this Agreement by the Receiving\nParty;\n(b)\nprior to disclosure hereunder is properly within the legitimate possession of the Receiving Party;\n(c)\nsubsequent to disclosure hereunder is lawfully received from a third party having a right to disclose the information in\nsuch party’s possession and is not restricted from further disseminating the information;\n(d)\nis independently developed by the Receiving Party without use of the Confidential Information of the Disclosing\nParty;\n(e)\nis disclosed without further restriction to a third party with the written approval of the Disclosing Party; or\n2\n(f)\nis provided solely pursuant to and in connection with the parties’ existing commercial relationship pursuant to that\ncertain Distributor Agreement between the parties dated as of October 1, 2008, that certain Third-Party Agency\nAgreement among the parties hereto and Inter National Bank, N.A. dated as of October 1, 2008, and the Mutual Non-\ndisclosure Agreement between the parties dated as of October 29, 2007 (such agreements, the “Existing Commercial\nAgreements”).\n7.\nLegally Required Disclosure. If either Party is requested or required by law or by any court of competent authority or\ngovernmental agency or authority or in connection with any legal or administrative proceeding to disclose any of the Confidential Information\n(the “Requested Party”) will provide such other Party (the “Owning Party”) with prompt written notice of such request or requirement prior to\nsuch disclosure. The Owning Party receiving such notice may then either seek appropriate protective relief from all or part of such request or\nrequirement (including confidential treatment of any such disclosure if required) or waive the Requested Party’s compliance with the provisions\nof this Agreement with respect to all or part of such request or requirement. Each Party agrees that if it is the Requested Party, it will reasonably\ncooperate with the Owning Party to attempt to obtain any protective relief that the Owning Party chooses to seek. If the Owning Party fails to\nobtain such relief, and, in the opinion of counsel for the Requested Party, the Requested party is legally compelled to disclose any of the\nConfidential Information, then the Requested Party may disclose that portion of the Confidential Information which counsel to such Requested\nParty advises that it is compelled to disclose.\n8.\nRelief. Because monetary damages will not be an adequate remedy for any breach of this Agreement and may be\ndifficult to ascertain, the Parties agree that in the event of a violation of this Agreement, without limiting any other rights and remedies of each\nother, specific performance and/or other injunctive relief may be obtained against any Party who has breached or threatened to breach this\nAgreement and that such Party seeking equitable relief may do so without the necessity to post any bond therefore.\n9.\nRight to Disclose. Each of the Parties warrants that it has the right to disclose all of the Confidential Information\nthat it previously has disclosed or will disclose to the other Party pursuant to this Agreement. With the exception of the foregoing express\nwarranty and with the exception of any warranty as may be provided in definitive agreements, if any, that may be executed after the date hereof\nin connection with the Transaction or otherwise, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR\nIMPLIED, WITH RESPECT TO ANY CONFIDENTIAL INFORMATION, INCLUDING WITHOUT LIMITATION, ANY WARRANTY AS\nTO THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL INFORMATION.\n10.\nDisclosure. Except as required by law, all media releases and public announcements or disclosures by either of the\nParties relating to this Agreement, its subject matter or the purpose of this Agreement shall be coordinated by the Parties in writing prior to the\nrelease thereof. It is understood and agreed that, except in accordance with Section 7, neither\n3\nParty shall disclose to any third party (other than its Representatives) the fact that the Parties are in discussions concerning the Transaction, or the\nstatus or terms of such discussions, without the prior written consent of the other Party.\n11.\nTerm. This Agreement shall continue in full force and effect for a period of one (1) year from the date hereof and then\nshall automatically expire and terminate. The obligations of the Parties described in Section 2 through 9, and 11 through 20, however, shall\ncontinue after the termination of this Agreement for the duration set forth in such provision or, if not therein defined, perpetually.\n12.\nGoverning Law. This Agreement shall be governed by and construed under the laws of the State of Texas without\ngiving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction.\n13.\nSecurities Laws. Each Party hereby acknowledges that it is aware and that it will advise its Representatives who are\ninformed of the matters that are the subject of this Agreement, that the United States securities laws restrict persons with material non-public\ninformation about a company from purchasing or selling securities of such company or from communicating such information to a third party\nunder circumstances in which it is reasonably foreseeable that such third party is likely to purchase or sell such securities in reliance upon such\ninformation. Each Party agrees that it will not use or cause any other person to use, and that it will use reasonable efforts to assure that none of its\nRepresentatives will use or cause any other person to use, any Confidential Information in contravention of the United States securities laws.\n14.\nAmendment and Waiver. The terms and provisions of this Agreement may be amended or modified, and the\nobservance of any term or provision hereof may be waived, only by a written instrument executed by the Parties. No failure or delay by either\nParty in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof\npreclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.\n15.\nSuccessors and Assigns. This Agreement shall inure to, and be binding upon, the Parties hereto and their respective\nsuccessors (including, without limitation, any successor to a Party) and permitted assigns. Neither Party shall assign this Agreement without the\nprior express written consent of the other Party; provided, however, that assignments by operation of law, merger or other change of control\ntransaction shall be expressly permitted.\n16.\nPrior Agreements. This Agreement sets forth the entire agreement and understanding of the Parties relating to the\nsubject matter herein; provided, however, this Agreement is not intended to supersede or replace any existing confidentiality or non-disclosure\nagreement between the Parties, including without limitation the Existing Commercial Agreements, except as to the obligations of the parties\nrelating to Confidential Information disclosed for the purpose of considering a Transaction. This Agreement shall control for all\n4\npurposes as to the matters contained herein. This Agreement may be modified only in writing, signed by each Party.\n17.\nCounterparts. This Agreement may be executed in multiple identical counterparts, each of which shall be an original\nand all of which shall be deemed to be one and the same instrument.\n18.\nLimitation. This Agreement does not constitute or create any obligation on the part of either Party to provide any\nConfidential Information or other information to the other Party, but merely defines the rights, duties and obligations of the Parties with respect\nto the Confidential Information to the extent it may be disclosed or made available. The Parties acknowledge and agree that no contract or\nagreement providing for a Transaction shall be deemed to exist unless and until a definitive agreement has been executed and delivered by the\nParties. The Parties also agree that unless and until a definitive agreement with respect to a Transaction has been executed and delivered by the\nParties, there shall not be any legal obligation of any kind whatsoever with respect to any such Transaction by virtue of this Agreement or any\nother written or oral expression or proposal with respect to such Transaction except, in the case of this Agreement, for the matters specifically\nagreed to herein.\n5\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.\nNETSPEND CORPORATION\nBy: /s/Christopher T. Brown\nName: Christopher T. Brown\nTitle: General Counsel\nJTH TAX INC.\nBy: /s/Mark F. Baumgartner\nName: Mark F. Baumgartner\nTitle: VP/CFO\n6	EXHIBIT B\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), dated as of December 12th, 2008, is between\nNetSpend Corporation, a Delaware corporation, with offices at 701 Brazos Street, suite 1200, Austin, Texas 78701 (“NetSpend”), and JTH Tax\nInc., a Delaware corporation, d/b/a “Liberty Tax Service” with offices at 1716 Corporate Landing Parkway, Virginia Beach, Virginia 23454\n(“Liberty”), and is entered into to ensure the protection and preservation of the confidential and/or proprietary nature of information that the\nParties (as hereinafter defined) contemplate disclosing to one another in order to consider possible strategic transactions involving one or more\nissuing banks (the “Transaction”).\nAs used in this Agreement, the Party disclosing Confidential Information (as hereinafter defined) is the “Disclosing Party” and\nthe Party receiving the Confidential Information is the “Receiving Party.” Each of NetSpend and Liberty and their respective subsidiaries and\naffiliates shall be referred to herein individually as a “Party” and collectively as the “Parties.”\nNOW THEREFORE, in reliance upon and in consideration of the following mutual undertakings and agreements and other\ngood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, each of the Parties agree as\nfollows:\n1. Confidential Information. For purposes of this Agreement, the term “Confidential Information” shall be deemed to\ninclude (i) any information (including historical financial information that has not been publicly disclosed), concerning the business, assets,\noperations, financial condition or projections, technology, customers, strategic partners and business plans and models of the Disclosing Party\nincluded in information that has been or in the future is furnished by or on behalf of the Disclosing Party and (ii) notes, analysis, compilations,\nstudies, interpretations, memoranda or other documents and writings prepared by the Receiving Party or its directors, officers, employees,\nsubsidiaries and advisors (“Representatives”) which contain, reflect or are based upon, in whole or in part, any information described in clause\n(i) above that has been or in the future is furnished by the Disclosing Party or its Representatives.\n2. Non-Disclosure and Use Restrictions. Each Party shall keep the Confidential Information of the other Party\nstrictly confidential for a period of five (5) years from the date hereof and shall not disclose such Confidential Information to any third parties,\nother than its Representatives, without the prior written consent of the Disclosing Party. Each Party shall use the Confidential Information\nreceived from the other Party only for the purpose of evaluating the Transaction (including the effects of its consummation), and in no event for\nany other commercial, business or other purpose or for any other purpose competitively, strategically or otherwise disadvantageous, directly or\nindirectly, to the Disclosing Party. No other rights, and particularly licenses, to trademarks, inventions, copyrights, patents, mask work rights, or\nany other intellectual property rights are implied or granted under this Agreement or by the delivery of Confidential Information by one Party to\nthe other Party.\n \n3. Copying. Confidential Information supplied by one Party shall not be reproduced by the other Party in any\nform except to the extent reasonably necessary to enable such other Party to evaluate the Transaction.\n4. Care. The Receiving Party shall treat Confidential Information of the Disclosing Party as proprietary and\nconfidential and shall use the same degree of care to avoid disclosure or unauthorized use of Confidential Information of the Disclosing Party as\nthe Receiving Party provides to protect its own Confidential Information but no less than reasonable care. The Receiving Party shall maintain the\nConfidential Information received from the Disclosing Party in confidence and shall retain such Confidential Information in a secure place. The\nReceiving Party shall disclose and permit access to such Confidential Information only to those of its Representatives who reasonably need to\nknow such information in order to evaluate the Transaction and with whom the Receiving Party has established practices or procedures to\nmaintain the confidence of such Confidential Information and who are informed of the confidential and proprietary nature of such information\nand the provisions of this Agreement. The Receiving Party shall be responsible for any breach of the provisions of this Agreement by any of its\nRepresentatives.\n5. Ownership. All Confidential Information shall remain the property of the Disclosing Party, and all documents or\nother tangible or electronic media embodying such Confidential Information (including those prepared by the Receiving Party) shall be, at the\noption of the Receiving Party, either promptly returned to the Disclosing Party or destroyed after the Receiving Party’s need for it has expired or\nupon the request of the Disclosing Party. The Receiving Party’s counsel may retain one copy to be kept confidential and used solely for archival\npurposes. If destroyed, the Receiving Party shall so certify in writing to the Disclosing Party.\n6. Limitation. It is understood that the term “Confidential Information” does not include information that:\n(a) has been published or is now or becomes in the public domain without breach of this Agreement by the Receiving\nParty;\n(b) prior to disclosure hereunder is properly within the legitimate possession of the Receiving Party;\n(0 subsequent to disclosure hereunder is lawfully received from a third party having a right to disclose the information in\nsuch party’s possession and is not restricted from further disseminating the information;\n(d) is independently developed by the Receiving Party without use of the Confidential Information of the Disclosing\n \nParty;\n(e) is disclosed without further restriction to a third party with the written approval of the Disclosing Party; or\n2\n® is provided solely pursuant to and in connection with the parties’ existing commercial relationship pursuant to that\ncertain Distributor Agreement between the parties dated as of October 1, 2008, that certain Third-Party Agency\nAgreement among the parties hereto and Inter National Bank, N.A. dated as of October 1, 2008, and the Mutual Non-\ndisclosure Agreement between the parties dated as of October 29, 2007 (such agreements, the “Existing Commercial\nAgreements”).\n7. Legally Required Disclosure. If either Party is requested or required by law or by any court of competent authority or\ngovernmental agency or authority or in connection with any legal or administrative proceeding to disclose any of the Confidential Information\n(the “Requested Party”) will provide such other Party (the “Owning Party”) with prompt written notice of such request or requirement prior to\nsuch disclosure. The Owning Party receiving such notice may then either seek appropriate protective relief from all or part of such request or\nrequirement (including confidential treatment of any such disclosure if required) or waive the Requested Party’s compliance with the provisions\nof this Agreement with respect to all or part of such request or requirement. Each Party agrees that if it is the Requested Party, it will reasonably\ncooperate with the Owning Party to attempt to obtain any protective relief that the Owning Party chooses to seek. If the Owning Party fails to\nobtain such relief, and, in the opinion of counsel for the Requested Party, the Requested party is legally compelled to disclose any of the\nConfidential Information, then the Requested Party may disclose that portion of the Confidential Information which counsel to such Requested\nParty advises that it is compelled to disclose.\n8. Relief. Because monetary damages will not be an adequate remedy for any breach of this Agreement and may be\ndifficult to ascertain, the Parties agree that in the event of a violation of this Agreement, without limiting any other rights and remedies of each\nother, specific performance and/or other injunctive relief may be obtained against any Party who has breached or threatened to breach this\nAgreement and that such Party seeking equitable relief may do so without the necessity to post any bond therefore.\n9. Right to Disclose. Each of the Parties warrants that it has the right to disclose all of the Confidential Information\nthat it previously has disclosed or will disclose to the other Party pursuant to this Agreement. With the exception of the foregoing express\nwarranty and with the exception of any warranty as may be provided in definitive agreements, if any, that may be executed after the date hereof\nin connection with the Transaction or otherwise, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR\nIMPLIED, WITH RESPECT TO ANY CONFIDENTIAL INFORMATION, INCLUDING WITHOUT LIMITATION, ANY WARRANTY AS\nTO THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL INFORMATION.\n10. Disclosure.  Except as required by law, all media releases and public announcements or disclosures by either of the\nParties relating to this Agreement, its subject matter or the purpose of this Agreement shall be coordinated by the Parties in writing prior to the\nrelease thereof. It is understood and agreed that, except in accordance with Section 7, neither\n3\n \nParty shall disclose to any third party (other than its Representatives) the fact that the Parties are in discussions concerning the Transaction, or the\nstatus or terms of such discussions, without the prior written consent of the other Party.\n11. Term. This Agreement shall continue in full force and effect for a period of one (1) year from the date hereof and then\nshall automatically expire and terminate. The obligations of the Parties described in Section 2 through 9, and 11 through 20, however, shall\ncontinue after the termination of this Agreement for the duration set forth in such provision or, if not therein defined, perpetually.\n12. Governing Law. This Agreement shall be governed by and construed under the laws of the State of Texas without\ngiving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction.\n13. Securities Laws. Each Party hereby acknowledges that it is aware and that it will advise its Representatives who are\ninformed of the matters that are the subject of this Agreement, that the United States securities laws restrict persons with material non-public\ninformation about a company from purchasing or selling securities of such company or from communicating such information to a third party\nunder circumstances in which it is reasonably foreseeable that such third party is likely to purchase or sell such securities in reliance upon such\ninformation. Each Party agrees that it will not use or cause any other person to use, and that it will use reasonable efforts to assure that none of its\nRepresentatives will use or cause any other person to use, any Confidential Information in contravention of the United States securities laws.\n14. Amendment and Waiver. The terms and provisions of this Agreement may be amended or modified, and the\nobservance of any term or provision hereof may be waived, only by a written instrument executed by the Parties. No failure or delay by either\nParty in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof\npreclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.\n15. Successors and Assigns. This Agreement shall inure to, and be binding upon, the Parties hereto and their respective\nsuccessors (including, without limitation, any successor to a Party) and permitted assigns. Neither Party shall assign this Agreement without the\nprior express written consent of the other Party; provided, however, that assignments by operation of law, merger or other change of control\ntransaction shall be expressly permitted.\n16. Prior Agreements. This Agreement sets forth the entire agreement and understanding of the Parties relating to the\nsubject matter herein; provided, however, this Agreement is not intended to supersede or replace any existing confidentiality or non-disclosure\nagreement between the Parties, including without limitation the Existing Commercial Agreements, except as to the obligations of the parties\nrelating to Confidential Information disclosed for the purpose of considering a Transaction. This Agreement shall control for all\n4\n \npurposes as to the matters contained herein. This Agreement may be modified only in writing, signed by each Party.\n17. Counterparts. This Agreement may be executed in multiple identical counterparts, each of which shall be an original\nand all of which shall be deemed to be one and the same instrument.\n18. Limitation. This Agreement does not constitute or create any obligation on the part of either Party to provide any\nConfidential Information or other information to the other Party, but merely defines the rights, duties and obligations of the Parties with respect\nto the Confidential Information to the extent it may be disclosed or made available. The Parties acknowledge and agree that no contract or\nagreement providing for a Transaction shall be deemed to exist unless and until a definitive agreement has been executed and delivered by the\nParties. The Parties also agree that unless and until a definitive agreement with respect to a Transaction has been executed and delivered by the\nParties, there shall not be any legal obligation of any kind whatsoever with respect to any such Transaction by virtue of this Agreement or any\nother written or oral expression or proposal with respect to such Transaction except, in the case of this Agreement, for the matters specifically\nagreed to herein.\n \nIN WITNESS WHEREQF, the Parties have executed this Agreement as of the date first above written.\nNETSPEND CORPORATION\nBy: /s/Christopher T. Brown\nName: Christopher T. Brown\nTitle: General Counsel\nJTH TAX INC.\nBy: /s/Mark F. Baumgartner\nName: Mark F. Baumgartner\nTitle: VP/CFO\n	EXHIBIT B\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this "Agreement"), dated as of December 12th, 2008, is between\nNetSpend Corporation, a Delaware corporation, with offices at 701 Brazos Street, suite 1200, Austin, Texas 78701 ("NetSpend"), and JTH Tax\nInc., a Delaware corporation, d/b/a "Liberty Tax Service" with offices at 1716 Corporate Landing Parkway, Virginia Beach, Virginia 23454\n("Liberty"), and is entered into to ensure the protection and preservation of the confidential and/or proprietary nature of information that the\nParties (as hereinafter defined) contemplate disclosing to one another in order to consider possible strategic transactions involving one or more\nissuing banks (the "Transaction").\nAs used in this Agreement, the Party disclosing Confidential Information (as hereinafter defined) is the "Disclosing Party" and\nthe\nParty\nreceiving the Confidential Information is the "Receiving Party." Each of NetSpend and Liberty and their respective subsidiaries and\naffiliates shall be referred to herein individually as a "Party" and collectively as the "Parties."\nNOW THEREFORE, in reliance upon and in consideration of the following mutual undertakings and agreements and other\ngood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, each of the Parties agree as\nfollows:\n1.\nConfidential Information. For purposes of this Agreement, the term "Confidential Information" shall be deemed to\ninclude (i) any information (including historical financial information that has not been publicly disclosed), concerning the business, assets,\noperations, financial condition or projections, technology, customers, strategic partners and business plans and models of the Disclosing Party\nincluded in information that has been or in the future is furnished by or on behalf of the Disclosing Party and (ii) notes, analysis, compilations,\nstudies, interpretations, memoranda or other documents and writings prepared by the Receiving Party or its directors, officers, employees,\nsubsidiaries and advisors ("Representatives") which contain, reflect or are based upon, in whole or in part, any information described in clause\n(i) above that has been or in the future is furnished by the Disclosing Party or its Representatives.\n2.\nNon-Disclosure and Use Restrictions.\nEach Party shall keep the Confidential Information of the other Party\nstrictly confidential for a period of five (5) years from the date hereof and shall not disclose such Confidential Information to any third parties,\nother than its Representatives, without the prior written consent of the Disclosing Party. Each Party shall use the Confidential Information\nreceived from the other Party only for the purpose of evaluating the Transaction (including the effects of its consummation), and in no event for\nany other commercial, business or other purpose or for any other purpose competitively, strategically or otherwise disadvantageous, directly or\nindirectly, to the Disclosing Party. No other rights, and particularly licenses, to trademarks, inventions, copyrights, patents, mask work rights, or\nany other intellectual property rights are implied or granted under this Agreement or by the delivery of Confidentia Information by one Party to\nthe other Party.\n3.\nCopying.\nConfidential Information supplied by one Party shall not be reproduced by the other Party in any\nform except to the extent reasonably necessary to enable such other Party to evaluate the Transaction.\n4.\nCare. The Receiving Party shall treat Confidential Information of the Disclosing Party as proprietary and\nconfidential and shall use the same degree of care to avoid disclosure or unauthorized use of Confidential Information of the Disclosing Party\nas\nthe Receiving Party provides to protect its own Confidential Information but no less than reasonable care. The Receiving Party shall maintain the\nConfidential Information received from the Disclosing Party in confidence and shall retain such Confidential Information in a secure place. The\nReceiving Party shall disclose and permit access to such Confidential Information only to those of its Representatives who reasonably need to\nknow such information in order to evaluate the Transaction and with whom the Receiving Party has established practices or procedures to\nmaintain the confidence of such Confidential Information and who are informed of the confidential and proprietary nature of such information\nand the provisions of this Agreement. The Receiving Party shall be responsible for any breach of the provisions of this Agreement by any of its\nRepresentatives.\n5.\nOwnership. All Confidential Information shall remain the property of the Disclosing Party, and all documents or\nother tangible or electronic media embodying such Confidential Information (including those prepared by the Receiving Party) shall be, at the\noption of the Receiving Party, either promptly returned to the Disclosing Party or destroyed after the Receiving Party's need for it has expired or\nupon the request of the Disclosing Party. The Receiving Party's counsel may retain one copy to be kept confidential and used solely for archival\npurposes. If destroyed, the Receiving Party shall so certify in writing to the Disclosing Party.\n6.\nLimitation.\nIt is understood that the term "Confidentia Information" does not include information that:\n(a)\nhas been published or is now or becomes in the public domain without breach of this Agreement by the Receiving\nParty;\n(b)\nprior to disclosure hereunder is properly within the legitimate possession of the Receiving Party;\n(c)\nsubsequent to disclosure hereunder is lawfully received from a third party having a right to disclose the information in\nsuch party's possession and is not restricted from further disseminating the information;\n(d)\nis\nindependently developed by the Receiving Party without use of the Confidential Information of the Disclosing\nParty;\n(e)\nis\ndisclosed without further restriction to a third party with the written approval of the Disclosing Party;\nor\n2\n(f)\nis provided solely pursuant to and in connection with the parties' existing commercial relationship pursuant to that\ncertain Distributor Agreement between the parties dated as of October 1, 2008, that certain Third-Party Agency\nAgreement among the parties hereto and Inter National Bank, N.A. dated as of October 1, 2008, and the Mutual Non-\ndisclosure Agreement between the parties dated as of October 29, 2007 (such agreements, the "Existing Commercial\nAgreements").\n7.\nLegally Required Disclosure. If either Party is requested or required by law or by any court of competent authority or\ngovernmental agency or authority or in connection with any legal or administrative proceeding to disclose any of the Confidential Information\n(the "Requested Party") will provide such other Party (the "Owning Party") with prompt written notice of such request or requirement prior to\nsuch disclosure. The Owning Party receiving such notice may then either seek appropriate protective relief from all or part of such request or\nrequirement (including confidential treatment of any such disclosure if required) or waive the Requested Party's compliance with the provisions\nof this Agreement with respect to all or part of such request or requirement. Each Party agrees that if it is the Requested Party, it will reasonably\ncooperate with the Owning Party to attempt to obtain any protective relief that the Owning Party chooses to seek. If the Owning Party fails to\nobtain such relief, and, in the opinion of counsel for the Requested Party, the Requested party is legally compelled to disclose any of the\nConfidential Information, then the Requested Party may disclose that portion of the Confidential Information which counsel to such Requested\nParty advises that it is compelled to disclose.\n8.\nRelief. Because monetary damages will not be an adequate remedy for any breach of this Agreement and may\nbe\ndifficult to ascertain, the Parties agree that in the event of a violation of this Agreement, without limiting any other rights and remedies of each\nother, specific performance and/or other injunctive relief may be obtained against any Party who has breached or threatened to breach this\nAgreement and that such Party seeking equitable relief may do so without the necessity to post any bond therefore.\n9.\nRight to Disclose. Each of the Parties warrants that it has the right to disclose all of the Confidential Information\nthat it previously has disclosed or will disclose to the other Party pursuant to this Agreement. With the exception of the foregoing express\nwarranty and with the exception of any warranty as may be provided in definitive agreements, if any, that may be executed after the date hereof\nin connection with the Transaction or otherwise, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS\nOR\nIMPLIED, WITH RESPECT TO ANY CONFIDENTIAL INFORMATION, INCLUDING WITHOUT LIMITATION, ANY WARRANTY AS\nTO THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL INFORMATION.\n10.\nDisclosure. Except as required by law, all media releases and public announcements or disclosures by either of the\nParties relating to this Agreement, its subject matter or the purpose of this Agreement shall be coordinated by the Parties in writing prior to the\nrelease thereof. It is understood and agreed that, except in accordance with Section 7, neither\n3\nParty shall disclose to any third party (other than its Representatives) the fact that the Parties are in discussions concerning the Transaction, or the\nstatus or terms of such discussions, without the prior written consent of the other Party.\n11.\nTerm. This Agreement shall continue in full force and effect for a period of one (1) year from the date hereof and then\nshall automatically expire and terminate. The obligations of the Parties described in Section 2 through 9, and 11 through 20, however, shall\ncontinue after the termination of this Agreement for the duration set forth in such provision or, if not therein defined, perpetually.\n12.\nGoverning Law. This Agreement shall be governed by and construed under the laws of the State of Texas without\ngiving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction.\n13.\nSecurities Laws. Each Party hereby acknowledges that it is aware and that it will advise its Representatives who are\ninformed\nof\nthe\nmatters\nthat\nare\nthe\nsubject\nof\nthis\nAgreement,\nthat\nthe\nUnited\nStates\nsecurities\nlaws\nrestrict\npersons\nwith\nmaterial\nnon-public\ninformation about a company from purchasing or selling securities of such company or from communicating such information to a third party\nunder circumstances in which it is reasonably foreseeable that such third party is likely to purchase or sell such securities in reliance upon such\ninformation. Each Party agrees that it will not use or cause any other person to use, and that it will use reasonable efforts to assure that none of its\nRepresentatives will use or cause any other person to use, any Confidential Information in contravention of the United States securities laws.\n14.\nAmendment and Waiver. The terms and provisions of this Agreement may be amended or modified, and the\nobservance of any term or provision hereof may be waived, only by a written instrument executed by the Parties. No failure or delay by either\nParty in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof\npreclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.\n15.\nSuccessors and Assigns. This Agreement shall inure to, and be binding upon, the Parties hereto and their respective\nsuccessors (including, without limitation, any successor to a Party) and permitted assigns. Neither Party shall assign this Agreement without the\nprior express written consent of the other Party; provided, however, that assignments by operation of law, merger or other change of control\ntransaction shall be expressly permitted.\n16.\nPrior Agreements. This Agreement sets forth the entire agreement and understanding of the Parties relating to the\nsubject matter herein; provided, however, this Agreement is not intended to supersede or replace any existing confidentiality or non-disclosure\nagreement between the Parties, including without limitation the Existing Commercial Agreements, except as to the obligations of the parties\nrelating to Confidential Information disclosed for the purpose of considering a Transaction. This Agreement shall control for all\n4\npurposes as to the matters contained herein. This Agreement may be modified only in writing, signed by each Party.\n17.\nCounterparts. This Agreement may be executed in multiple identica counterparts, each of which shall be an original\nand all of which shall be deemed to be one and the same instrument.\n18.\nLimitation. This Agreement does not constitute or create any obligation on the part of either Party to provide\nany\nConfidential Information or other information to the other Party, but merely defines the rights, duties and obligations of the Parties with respect\nto the Confidential Information to the extent it may be disclosed or made available. The Parties acknowledge and agree that no contract or\nagreement providing for a Transaction shall be deemed to exist unless and until a definitive agreement has been executed and delivered by the\nParties. The Parties also agree that unless and until a definitive agreement with respect to a Transaction has been executed and delivered by the\nParties, there shall not be any legal obligation of any kind whatsoever with respect to any such Transaction by virtue of this Agreement or any\nother written or oral expression or proposal with respect to such Transaction except, in the case of this Agreement, for the matters specifically\nagreed to herein.\n5\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.\nNETSPEND CORPORATION\nBy: /s/Christopher T. Brown\nName: Christopher T. Brown\nTitle: General Counsel\nJTH TAX INC.\nBy: /s/Mark F. Baumgartner\nName: Mark F. Baumgartner\nTitle: VP/CFO\n6	EXHIBIT B\nMUTUAL NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”), dated as of December 12th, 2008, is between\nNetSpend Corporation, a Delaware corporation, with offices at 701 Brazos Street, suite 1200, Austin, Texas 78701 (“NetSpend”), and JTH Tax\nInc., a Delaware corporation, d/b/a “Liberty Tax Service” with offices at 1716 Corporate Landing Parkway, Virginia Beach, Virginia 23454\n(“Liberty”), and is entered into to ensure the protection and preservation of the confidential and/or proprietary nature of information that the\nParties (as hereinafter defined) contemplate disclosing to one another in order to consider possible strategic transactions involving one or more\nissuing banks (the “Transaction”).\nAs used in this Agreement, the Party disclosing Confidential Information (as hereinafter defined) is the “Disclosing Party” and\nthe Party receiving the Confidential Information is the “Receiving Party.” Each of NetSpend and Liberty and their respective subsidiaries and\naffiliates shall be referred to herein individually as a “Party” and collectively as the “Parties.”\nNOW THEREFORE, in reliance upon and in consideration of the following mutual undertakings and agreements and other\ngood and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, each of the Parties agree as\nfollows:\n1.\nConfidential Information. For purposes of this Agreement, the term “Confidential Information” shall be deemed to\ninclude (i) any information (including historical financial information that has not been publicly disclosed), concerning the business, assets,\noperations, financial condition or projections, technology, customers, strategic partners and business plans and models of the Disclosing Party\nincluded in information that has been or in the future is furnished by or on behalf of the Disclosing Party and (ii) notes, analysis, compilations,\nstudies, interpretations, memoranda or other documents and writings prepared by the Receiving Party or its directors, officers, employees,\nsubsidiaries and advisors (“Representatives”) which contain, reflect or are based upon, in whole or in part, any information described in clause\n(i) above that has been or in the future is furnished by the Disclosing Party or its Representatives.\n2.\nNon-Disclosure and Use Restrictions.\nEach Party shall keep the Confidential Information of the other Party\nstrictly confidential for a period of five (5) years from the date hereof and shall not disclose such Confidential Information to any third parties,\nother than its Representatives, without the prior written consent of the Disclosing Party. Each Party shall use the Confidential Information\nreceived from the other Party only for the purpose of evaluating the Transaction (including the effects of its consummation), and in no event for\nany other commercial, business or other purpose or for any other purpose competitively, strategically or otherwise disadvantageous, directly or\nindirectly, to the Disclosing Party. No other rights, and particularly licenses, to trademarks, inventions, copyrights, patents, mask work rights, or\nany other intellectual property rights are implied or granted under this Agreement or by the delivery of Confidential Information by one Party to\nthe other Party.\n3.\nCopying.\nConfidential Information supplied by one Party shall not be reproduced by the other Party in any\nform except to the extent reasonably necessary to enable such other Party to evaluate the Transaction.\n4.\nCare. The Receiving Party shall treat Confidential Information of the Disclosing Party as proprietary and\nconfidential and shall use the same degree of care to avoid disclosure or unauthorized use of Confidential Information of the Disclosing Party as\nthe Receiving Party provides to protect its own Confidential Information but no less than reasonable care. The Receiving Party shall maintain the\nConfidential Information received from the Disclosing Party in confidence and shall retain such Confidential Information in a secure place. The\nReceiving Party shall disclose and permit access to such Confidential Information only to those of its Representatives who reasonably need to\nknow such information in order to evaluate the Transaction and with whom the Receiving Party has established practices or procedures to\nmaintain the confidence of such Confidential Information and who are informed of the confidential and proprietary nature of such information\nand the provisions of this Agreement. The Receiving Party shall be responsible for any breach of the provisions of this Agreement by any of its\nRepresentatives.\n5.\nOwnership.\nAll Confidential Information shall remain the property of the Disclosing Party, and all documents or\nother tangible or electronic media embodying such Confidential Information (including those prepared by the Receiving Party) shall be, at the\noption of the Receiving Party, either promptly returned to the Disclosing Party or destroyed after the Receiving Party’s need for it has expired or\nupon the request of the Disclosing Party. The Receiving Party’s counsel may retain one copy to be kept confidential and used solely for archival\npurposes. If destroyed, the Receiving Party shall so certify in writing to the Disclosing Party.\n6.\nLimitation.\nIt is understood that the term “Confidential Information” does not include information that:\n(a)\nhas been published or is now or becomes in the public domain without breach of this Agreement by the Receiving\nParty;\n(b)\nprior to disclosure hereunder is properly within the legitimate possession of the Receiving Party;\n(c)\nsubsequent to disclosure hereunder is lawfully received from a third party having a right to disclose the information in\nsuch party’s possession and is not restricted from further disseminating the information;\n(d)\nis independently developed by the Receiving Party without use of the Confidential Information of the Disclosing\nParty;\n(e)\nis disclosed without further restriction to a third party with the written approval of the Disclosing Party; or\n2\n(f)\nis provided solely pursuant to and in connection with the parties’ existing commercial relationship pursuant to that\ncertain Distributor Agreement between the parties dated as of October 1, 2008, that certain Third-Party Agency\nAgreement among the parties hereto and Inter National Bank, N.A. dated as of October 1, 2008, and the Mutual Non-\ndisclosure Agreement between the parties dated as of October 29, 2007 (such agreements, the “Existing Commercial\nAgreements”).\n7.\nLegally Required Disclosure. If either Party is requested or required by law or by any court of competent authority or\ngovernmental agency or authority or in connection with any legal or administrative proceeding to disclose any of the Confidential Information\n(the “Requested Party”) will provide such other Party (the “Owning Party”) with prompt written notice of such request or requirement prior to\nsuch disclosure. The Owning Party receiving such notice may then either seek appropriate protective relief from all or part of such request or\nrequirement (including confidential treatment of any such disclosure if required) or waive the Requested Party’s compliance with the provisions\nof this Agreement with respect to all or part of such request or requirement. Each Party agrees that if it is the Requested Party, it will reasonably\ncooperate with the Owning Party to attempt to obtain any protective relief that the Owning Party chooses to seek. If the Owning Party fails to\nobtain such relief, and, in the opinion of counsel for the Requested Party, the Requested party is legally compelled to disclose any of the\nConfidential Information, then the Requested Party may disclose that portion of the Confidential Information which counsel to such Requested\nParty advises that it is compelled to disclose.\n8.\nRelief. Because monetary damages will not be an adequate remedy for any breach of this Agreement and may be\ndifficult to ascertain, the Parties agree that in the event of a violation of this Agreement, without limiting any other rights and remedies of each\nother, specific performance and/or other injunctive relief may be obtained against any Party who has breached or threatened to breach this\nAgreement and that such Party seeking equitable relief may do so without the necessity to post any bond therefore.\n9.\nRight to Disclose. Each of the Parties warrants that it has the right to disclose all of the Confidential Information\nthat it previously has disclosed or will disclose to the other Party pursuant to this Agreement. With the exception of the foregoing express\nwarranty and with the exception of any warranty as may be provided in definitive agreements, if any, that may be executed after the date hereof\nin connection with the Transaction or otherwise, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR\nIMPLIED, WITH RESPECT TO ANY CONFIDENTIAL INFORMATION, INCLUDING WITHOUT LIMITATION, ANY WARRANTY AS\nTO THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL INFORMATION.\n10.\nDisclosure. Except as required by law, all media releases and public announcements or disclosures by either of the\nParties relating to this Agreement, its subject matter or the purpose of this Agreement shall be coordinated by the Parties in writing prior to the\nrelease thereof. It is understood and agreed that, except in accordance with Section 7, neither\n3\nParty shall disclose to any third party (other than its Representatives) the fact that the Parties are in discussions concerning the Transaction, or the\nstatus or terms of such discussions, without the prior written consent of the other Party.\n11.\nTerm. This Agreement shall continue in full force and effect for a period of one (1) year from the date hereof and then\nshall automatically expire and terminate. The obligations of the Parties described in Section 2 through 9, and 11 through 20, however, shall\ncontinue after the termination of this Agreement for the duration set forth in such provision or, if not therein defined, perpetually.\n12.\nGoverning Law. This Agreement shall be governed by and construed under the laws of the State of Texas without\ngiving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction.\n13.\nSecurities Laws. Each Party hereby acknowledges that it is aware and that it will advise its Representatives who are\ninformed of the matters that are the subject of this Agreement, that the United States securities laws restrict persons with material non-public\ninformation about a company from purchasing or selling securities of such company or from communicating such information to a third party\nunder circumstances in which it is reasonably foreseeable that such third party is likely to purchase or sell such securities in reliance upon such\ninformation. Each Party agrees that it will not use or cause any other person to use, and that it will use reasonable efforts to assure that none of its\nRepresentatives will use or cause any other person to use, any Confidential Information in contravention of the United States securities laws.\n14.\nAmendment and Waiver. The terms and provisions of this Agreement may be amended or modified, and the\nobservance of any term or provision hereof may be waived, only by a written instrument executed by the Parties. No failure or delay by either\nParty in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof\npreclude any other or further exercise thereof or the exercise of any other right, power or privilege granted hereunder.\n15.\nSuccessors and Assigns. This Agreement shall inure to, and be binding upon, the Parties hereto and their respective\nsuccessors (including, without limitation, any successor to a Party) and permitted assigns. Neither Party shall assign this Agreement without the\nprior express written consent of the other Party; provided, however, that assignments by operation of law, merger or other change of control\ntransaction shall be expressly permitted.\n16.\nPrior Agreements. This Agreement sets forth the entire agreement and understanding of the Parties relating to the\nsubject matter herein; provided, however, this Agreement is not intended to supersede or replace any existing confidentiality or non-disclosure\nagreement between the Parties, including without limitation the Existing Commercial Agreements, except as to the obligations of the parties\nrelating to Confidential Information disclosed for the purpose of considering a Transaction. This Agreement shall control for all\n4\npurposes as to the matters contained herein. This Agreement may be modified only in writing, signed by each Party.\n17.\nCounterparts. This Agreement may be executed in multiple identical counterparts, each of which shall be an original\nand all of which shall be deemed to be one and the same instrument.\n18.\nLimitation. This Agreement does not constitute or create any obligation on the part of either Party to provide any\nConfidential Information or other information to the other Party, but merely defines the rights, duties and obligations of the Parties with respect\nto the Confidential Information to the extent it may be disclosed or made available. The Parties acknowledge and agree that no contract or\nagreement providing for a Transaction shall be deemed to exist unless and until a definitive agreement has been executed and delivered by the\nParties. The Parties also agree that unless and until a definitive agreement with respect to a Transaction has been executed and delivered by the\nParties, there shall not be any legal obligation of any kind whatsoever with respect to any such Transaction by virtue of this Agreement or any\nother written or oral expression or proposal with respect to such Transaction except, in the case of this Agreement, for the matters specifically\nagreed to herein.\n5\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.\nNETSPEND CORPORATION\nBy: /s/Christopher T. Brown\nName: Christopher T. Brown\nTitle: General Counsel\nJTH TAX INC.\nBy: /s/Mark F. Baumgartner\nName: Mark F. Baumgartner\nTitle: VP/CFO\n6
+9436bf2d6f219936711abf8357a054aa.pdf	effective_date jurisdiction party term	EX-99.(E)(8) 3 dex99e8.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nExhibit (e)(8)\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-disclosure Agreement (the “Agreement”) is made and entered into effective as of September 10, 2008, by and\nbetween Hifn, Inc. (the “Company”), and Exar Corporation (“Exar”). In consideration of the mutual covenants and conditions contained herein, to\ninduce the parties hereto to provide certain information to each other and for other good and valuable consideration, the receipt and adequacy of\nwhich are hereby acknowledged, the parties to this Agreement do hereby agree as follows:\n1. Definition of Confidential Information. For all purposes of this Agreement, the term “Confidential Information” shall collectively refer to all non-\npublic information or material disclosed or provided by one party to the other, either orally or in writing, or obtained by the recipient party from a\nthird party or any other source, concerning any aspect of the business or affairs of the other party or its “affiliates” (as such term is defined in Rule\n12b-2 under the Securities Exchange Act of 1934), including without limitation, any information or material pertaining to products, formulae,\nspecifications, designs, processes, plans, policies, procedures, employees, work conditions, legal and regulatory affairs, assets, inventory,\ndiscoveries, trademarks, patents, manufacturing, packaging, distribution, sales, marketing, expenses, financial statements and data, customer and\nsupplier lists, raw materials, costs of goods and relationships with third parties. Confidential Information also includes any notes, analyses,\ncompilations, studies or other material or documents prepared by the recipient party which contain, reflect or are based, in whole or in part, on the\nConfidential Information.\nNotwithstanding the foregoing, Confidential Information shall not include information or material that (i) is publicly available or becomes publicly\navailable through no action or fault of the recipient party, (ii) was already in the recipient party’s possession or known to the recipient party prior to\nbeing disclosed or provided to the recipient party by or on behalf of the other party, provided, that, the source of such information or material was\nnot bound by a contractual, legal or fiduciary obligation of confidentiality to the non-disclosing party or any other party with respect thereto,\n(iii) was or is obtained by the recipient party from a third party, provided, that, such third party was not bound by a contractual, legal or fiduciary\nobligation of confidentiality to the non-disclosing party or any other party with respect to such information or material, or (iv) is independently\ndeveloped by the recipient party without reference to the Confidential Information.\n2. Restrictions on Disclosure and Use. The Company and Exar do hereby covenant and agree with each other as follows:\n2.1 Non-disclosure. Both parties shall keep strictly confidential and shall not disclose, or cause or permit to be disclosed, to any person or\nentity, (i) any information about the potential sale of all or a portion of all of the assets or equity securities of the Company (the “Transaction”) or the\nfact that either party has received the Confidential Information and is considering the Transaction and all discussions between the Company and Exar\nrelated thereto, except that both parties may make such disclosure if it has received the reasonable advice of its outside counsel that such disclosure\nmust be made in order that such party not commit a violation of law, and (ii) the Confidential Information, except to those officers, employees or\nother authorized agents and representatives and professional consultants of such party to whom disclosure is reasonably necessary in connection with\nthe Transaction and who shall agree to be bound by the terms of this Agreement, and except as otherwise consented to in writing by the non-\ndisclosing party. Both parties shall take all actions reasonably necessary to ensure that the Confidential Information remains strictly confidential and\nis not disclosed to or seen, used or obtained by any person or entity except in accordance with the terms of this Agreement. Both parties agree not to\ncontact any employees, customers, or suppliers of the other party or its affiliates with respect to the Transaction or for the purpose of obtaining\ninformation for use in evaluating the Transaction, without the other party’s prior written consent. Exar further agrees that all inquiries, requests for\ninformation and other communications concerning the Transaction shall be made only through RBC Capital Markets Corporation (“RBCCM”)\nunless otherwise advised or permitted by Company.\nIn the event that either party is requested or required (by oral questions, interrogatories, requests for information or documents in legal\nproceedings, subpoena, civil investigative demand or other similar process or by any law, rule or regulation of any governmental agency or\nregulatory authority) to disclose any of the Confidential Information, such party shall provide the other party with prompt written notice of any such\nrequest or requirement so that such other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions\nof this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver, and if one party is nonetheless, legally\ncompelled to disclose Confidential Information, such party may, without liability hereunder, disclose to such tribunal only that portion of the\nConfidential Information which such counsel advises it is legally required to be disclosed, provided that such party shall use its best efforts to\npreserve the confidentiality of the Confidential Information, including, without limitation, by cooperating with the other party to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be afforded the Confidential Information by such tribunal.\n2.2 Ownership. All Confidential Information of a party shall remain the exclusive property of such party, and no right, title or interest in or to\nany of the Confidential Information or any material developed therefrom is transferred to the recipient party hereby or by its delivery to the recipient\nparty hereunder.\n2.3 Use. The recipient party shall use or cause the Confidential Information to be used only to evaluate the Transaction and in a manner\nconsistent with the terms and conditions of this Agreement and at no time shall the recipient party otherwise use the Confidential Information for the\nbenefit of itself or any other third party or in any manner adverse to, or to the detriment of, the disclosing party or its affiliates or their respective\nshareholders.\n2.4 Other Parties Bound. All affiliates of a recipient party and all directors, officers, employees, agents and representatives of a recipient party\nor its affiliates shall be included within the definition of the term “recipient party” for purposes of this Agreement and shall be bound by the terms\nand conditions of this Agreement. The recipient party shall be responsible for any breaches of this Agreement by any of its affiliates and any\ndirectors, officers, employees, agents and representatives of such recipient party or its affiliates.\n3. No Solicitation. For a period of one year from the date of this Agreement, neither party will directly solicit the employment of any officer or\nemployee of the other party or its affiliates without the prior written consent of such other party.\n4. Return of Confidential Information. A recipient party shall, upon accomplishing the limited purpose of evaluating the Transaction, or at any time\nupon the written request of the other party, immediately return to the other party all Confidential Information (including notes, writings and other\nmaterial developed therefrom by the recipient party) and all copies thereof and retain none for its files. Notwithstanding such return, both parties\nshall continue to be bound by this Agreement.\n5. No Representations or Warranties. The Confidential Information is being provided under this Agreement “as is” and without any representation or\nwarranty of any kind, either express or implied, regarding the accuracy or completeness or other quality of the Confidential Information. In no event\nshall either party or its affiliates or any of their respective directors, officers, employees, agents or representatives (including, without limitation,\nRBCCM) have any liability to other party relating to or arising out of any use of the Confidential Information in accordance with this Agreement.\n6. Indemnification. Each party shall indemnify and hold harmless the other party and its affiliates and their respective directors, officers, employees,\nagents and representatives from and against any and all losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees\nand expenses) caused by or arising out of any direct breach of this Agreement or any direct breach for it is responsible hereunder, and any and all\nactions, suits, proceedings, claims, demands or judgments incident thereto.\n7. Equitable Remedies. Both parties hereby agree that their failure to perform any obligation or duty which they have agreed to perform under this\nAgreement may cause irreparable harm to the other party, which harm cannot be adequately compensated for by money damages. It is further agreed\nby both parties that an order of specific performance or for injunctive relief against the recipient party in the event of a breach or default under the\nterms of this Agreement would be equitable and would not work a hardship on the recipient party. Accordingly, in the event of a breach or default by\neither party hereunder, the non-defaulting party, without any bond or other security being required and in addition to whatever other remedies are or\nmight be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against, the other\nparty, with respect to any obligation or duty herein or breach thereof.\n8. No Licenses Granted. Neither party grants any licenses, by implication or otherwise, under any patent, copyright, trademark, trade secret or other\nrights by disclosing Confidential Information under this Agreement.\n9. Definitive Agreement. The Company and Exar understand and agree that no contract or agreement providing for any transaction involving the\nCompany or Exar shall be deemed to exist between Exar and the Company unless and until a final definitive agreement has been executed and\ndelivered, and the Company and Exar hereby waive in advance, any claims (including, without limitation, breach of contract) in connection with any\nsuch transaction unless and until Exar and the Company shall have entered into a final definitive agreement. The Company and Exar also agree that\nunless and until a final definitive agreement between Exar and the Company has been executed and delivered, neither Exar nor the Company will be\nunder any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for the matters specifically\nagreed to herein. Both parties reserve the right, in their sole discretion, to reject any and all proposals made by the other party and to terminate\ndiscussions and negotiations with respect to a Transaction at any time. Both parties further understand that (i) either party shall be free to conduct\nany process for any transaction involving the Company or Exar, if and as such party in its sole discretion shall determine (including, without\nlimitation, negotiating with any other interested party and entering into a definitive agreement without prior notice to the other or any other person),\n(ii) any procedures relating to such process or transaction may be changed at any time in either party’s sole discretion without notice to the other or\nany other person, and (iii) neither party shall have any claims whatsoever against the other or any of its agents or representatives (including, without\nlimitation, RBCCM) arising out of or relating to any transaction involving the Company and Exar (other than any claims against the parties to a\ndefinitive agreement in accordance with the terms thereof) nor, unless a definitive agreement is entered into, against any third party with whom a\ntransaction is entered into.\n10. Standstill. Each of the Company and Exar hereby covenant and agree that, for a period of six months from the date of this Agreement, without\nthe prior written consent of the other party, which shall not be unreasonably withheld, it will not in any manner, directly or indirectly, or in\nconjunction with any other person or entity, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any\nacquisition of any securities (or beneficial ownership thereof) or assets of the other party, (ii) any tender or exchange offer, merger or other business\ncombination involving the other party, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect\nto the other party, or (iv) any “solicitation” of “proxies” (as such terms are defined in Rule 14a-1\nunder the Securities Exchange Act of 1934) or consents to vote any securities of the other party; (b) form, join or in any way participate in a “group”\n(as such term is used in Section 13(d)(3) of the Securities Exchange Act of 1934) or otherwise act, alone or with others, to seek to acquire or affect\ncontrol or influence the management, board of directors or policies of the other party; (c) enter into any discussions or arrangements with any third\nparty regarding any of the foregoing; or (d) take any action which might force the other party to make a public announcement regarding any of the\nforegoing. Each of the Company and Exar further convenant and agree that, without the prior written consent of the other party, it will not directly or\nindirectly, enter into any agreement, arrangement or understanding, with any other person or entity regarding a possible transaction involving such\nother party of the type and for the term described above.\n11. Notices. Any notices to be given by either party to the other will be sufficiently given if delivered personally or transmitted by facsimile or if sent\nby registered mail, postage prepaid, to the parties at their respective addresses set out below, or to any other addresses as the parties may notify to the\nother from time to time in writing. This notice will be deemed to have been given at the time of delivery, if delivered in person or transmitted by\nfacsimile, or within three business days from the date of posting if sent by registered mail.\nIf to Hifn, Inc.:\n750 University Avenue\nLos Gatos, CA 95031\nAttention: Bill Walker, Chief Financial Officer\nFacsimile: (408) 399-3509\nIf to Exar Corporation:\n48720 Kato Road\nFremont, CA 94538\nAttention: Law Department\nFacsimile: 510-668-7002\n12. Trading in Securities. Both parties acknowledge that they are aware, and agree to advise their directors, officers, employees, agents and\nrepresentatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person\nwho has material, non-public information concerning the Transaction from purchasing or selling securities of a company that may be a party to such\nTransaction or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person\nis likely to purchase or sell such securities.\n13. Privileged Information and Work Product. To the extent any Confidential Information may include materials subject to attorney-client privilege,\nwork product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, Exar\nand the Company understand and agree that they both have a commonality of interest with respect to such matters and it is both our desire, intention\nand mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such\nmaterial or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential\nInformation provided by either party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine.\n14. Miscellaneous. This Agreement shall be binding upon, and inure to the benefit of, and be enforceable by, the parties hereto and their respective\nsuccessors and assigns, however, neither party\nshall have the right to assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the other party;\nprovided, however, that a successor in interest to a party by merger, by operation of law, or by assignment, purchase, or otherwise, of the entire\nbusiness of either party shall acquire all the rights and be subject to all the obligations of such party hereunder, without the necessity of obtaining\nsuch prior written consent; provided, however, that nothing herein shall prevent either party from assigning all of its rights and obligations under this\nAgreement to a subsidiary of that party upon written notice to the other party. This Agreement constitutes the complete agreement between the\nparties hereto with respect to the subject matter hereof and shall continue in full force and effect until terminated by mutual agreement of the parties\nhereto. The section headings used herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this\nAgreement. This Agreement shall be construed, performed and enforced in accordance with, and governed by, the internal laws of the State of\nCalifornia, without giving effect to the principles of conflicts of law thereof, and each party consents to personal jurisdiction in such state and\nvoluntarily submits to the jurisdiction of the courts of such state in any action or proceeding relating to this Agreement. Whenever possible, each\nprovision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision hereof is held\nto be invalid, illegal or unenforceable under any applicable law or rule in any jurisdiction, such provision will be ineffective only to the extent of\nsuch invalidity, illegality, or unenforceability, without invalidating the remainder of this Agreement. This Agreement may not be modified or\namended and no provision hereof may be waived, in whole or in part, except by a written agreement signed by the parties hereto. No waiver of any\nbreach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any subsequent breach or\ndefault of the same or similar nature. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original,\nbut all of which taken together shall constitute one and the same instrument.\n15. Term. This Agreement shall remain in full force and effect for one year from the date hereof.\nIN WITNESS WHEREOF, the parties hereto have duly executed this Agreement effective as of the date first set forth above.\nHifn, Inc.\nExar Corporation\nBy /s/ William R. Walker\nBy /s/ Pedro P. Rodriguez\nTitle Chief Financial Officer\nTitle President and Chief Executive Officer	EX-99.(E)(8) 3 dex99e8.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nExhibit ()(8)\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-disclosure Agreement (the “Agreement”) is made and entered into effective as of September 10, 2008, by and\nbetween Hifn, Inc. (the “Company”), and Exar Corporation (“Exar”). In consideration of the mutual covenants and conditions contained herein, to\ninduce the parties hereto to provide certain information to each other and for other good and valuable consideration, the receipt and adequacy of\nwhich are hereby acknowledged, the parties to this Agreement do hereby agree as follows:\n1. Definition of Confidential Information. For all purposes of this Agreement, the term “Confidential Information” shall collectively refer to all non-\npublic information or material disclosed or provided by one party to the other, either orally or in writing, or obtained by the recipient party from a\nthird party or any other source, concerning any aspect of the business or affairs of the other party or its “affiliates” (as such term is defined in Rule\n12b-2 under the Securities Exchange Act of 1934), including without limitation, any information or material pertaining to products, formulae,\nspecifications, designs, processes, plans, policies, procedures, employees, work conditions, legal and regulatory affairs, assets, inventory,\ndiscoveries, trademarks, patents, manufacturing, packaging, distribution, sales, marketing, expenses, financial statements and data, customer and\nsupplier lists, raw materials, costs of goods and relationships with third parties. Confidential Information also includes any notes, analyses,\ncompilations, studies or other material or documents prepared by the recipient party which contain, reflect or are based, in whole or in part, on the\nConfidential Information.\nNotwithstanding the foregoing, Confidential Information shall not include information or material that (i) is publicly available or becomes publicly\navailable through no action or fault of the recipient party, (ii) was already in the recipient party’s possession or known to the recipient party prior to\nbeing disclosed or provided to the recipient party by or on behalf of the other party, provided, that, the source of such information or material was\nnot bound by a contractual, legal or fiduciary obligation of confidentiality to the non-disclosing party or any other party with respect thereto,\n(iii) was or is obtained by the recipient party from a third party, provided, that, such third party was not bound by a contractual, legal or fiduciary\nobligation of confidentiality to the non-disclosing party or any other party with respect to such information or material, or (iv) is independently\ndeveloped by the recipient party without reference to the Confidential Information.\n \n2. Restrictions on Disclosure and Use. The Company and Exar do hereby covenant and agree with each other as follows:\n2.1 Non-disclosure. Both parties shall keep strictly confidential and shall not disclose, or cause or permit to be disclosed, to any person or\nentity, (i) any information about the potential sale of all or a portion of all of the assets or equity securities of the Company (the “Transaction”) or the\nfact that either party has received the Confidential Information and is considering the Transaction and all discussions between the Company and Exar\nrelated thereto, except that both parties may make such disclosure if it has received the reasonable advice of its outside counsel that such disclosure\nmust be made in order that such party not commit a violation of law, and (ii) the Confidential Information, except to those officers, employees or\nother authorized agents and representatives and professional consultants of such party to whom disclosure is reasonably necessary in connection with\nthe Transaction and who shall agree to be bound by the terms of this Agreement, and except as otherwise consented to in writing by the non-\ndisclosing party. Both parties shall take all actions reasonably necessary to ensure that the Confidential Information remains strictly confidential and\nis not disclosed to or seen, used or obtained by any person or entity except in accordance with the terms of this Agreement. Both parties agree not to\ncontact any employees, customers, or suppliers of the other party or its affiliates with respect to the Transaction or for the purpose of obtaining\ninformation for use in evaluating the Transaction, without the other party’s prior written consent. Exar further agrees that all inquiries, requests for\ninformation and other communications concerning the Transaction shall be made only through RBC Capital Markets Corporation (“RBCCM”)\nunless otherwise advised or permitted by Company.\nIn the event that either party is requested or required (by oral questions, interrogatories, requests for information or documents in legal\nproceedings, subpoena, civil investigative demand or other similar process or by any law, rule or regulation of any governmental agency or\nregulatory authority) to disclose any of the Confidential Information, such party shall provide the other party with prompt written notice of any such\nrequest or requirement so that such other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions\nof this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver, and if one party is nonetheless, legally\ncompelled to disclose Confidential Information, such party may, without liability hereunder, disclose to such tribunal only that portion of the\nConfidential Information which such counsel advises it is legally required to be disclosed, provided that such party shall use its best efforts to\npreserve the confidentiality of the Confidential Information, including, without limitation, by cooperating with the other party to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be afforded the Confidential Information by such tribunal.\n2.2 Ownership. All Confidential Information of a party shall remain the exclusive property of such party, and no right, title or interest in or to\nany of the Confidential Information or any material developed therefrom is transferred to the recipient party hereby or by its delivery to the recipient\nparty hereunder.\n2.3 Use. The recipient party shall use or cause the Confidential Information to be used only to evaluate the Transaction and in a manner\nconsistent with the terms and conditions of this Agreement and at no time shall the recipient party otherwise use the Confidential Information for the\nbenefit of itself or any other third party or in any manner adverse to, or to the detriment of, the disclosing party or its affiliates or their respective\nshareholders.\n2.4 Other Parties Bound. All affiliates of a recipient party and all directors, officers, employees, agents and representatives of a recipient party\nor its affiliates shall be included within the definition of the term “recipient party” for purposes of this Agreement and shall be bound by the terms\nand conditions of this Agreement. The recipient party shall be responsible for any breaches of this Agreement by any of its affiliates and any\ndirectors, officers, employees, agents and representatives of such recipient party or its affiliates.\n3. No Solicitation. For a period of one year from the date of this Agreement, neither party will directly solicit the employment of any officer or\nemployee of the other party or its affiliates without the prior written consent of such other party.\n4. Return of Confidential Information. A recipient party shall, upon accomplishing the limited purpose of evaluating the Transaction, or at any time\nupon the written request of the other party, immediately return to the other party all Confidential Information (including notes, writings and other\nmaterial developed therefrom by the recipient party) and all copies thereof and retain none for its files. Notwithstanding such return, both parties\nshall continue to be bound by this Agreement.\n5. No Representations or Warranties. The Confidential Information is being provided under this Agreement “as is” and without any representation or\nwarranty of any kind, either express or implied, regarding the accuracy or completeness or other quality of the Confidential Information. In no event\nshall either party or its affiliates or any of their respective directors, officers, employees, agents or representatives (including, without limitation,\nRBCCM) have any liability to other party relating to or arising out of any use of the Confidential Information in accordance with this Agreement.\n6. Indemnification. Each party shall indemnify and hold harmless the other party and its affiliates and their respective directors, officers, employees,\nagents and representatives from and against any and all losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees\nand expenses) caused by or arising out of any direct breach of this Agreement or any direct breach for it is responsible hereunder, and any and all\nactions, suits, proceedings, claims, demands or judgments incident thereto.\n7. Equitable Remedies. Both parties hereby agree that their failure to perform any obligation or duty which they have agreed to perform under this\nAgreement may cause irreparable harm to the other party, which harm cannot be adequately compensated for by money damages. It is further agreed\nby both parties that an order of specific performance or for injunctive relief against the recipient party in the event of a breach or default under the\nterms of this Agreement would be equitable and would not work a hardship on the recipient party. Accordingly, in the event of a breach or default by\neither party hereunder, the non-defaulting party, without any bond or other security being required and in addition to whatever other remedies are or\nmight be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against, the other\nparty, with respect to any obligation or duty herein or breach thereof.\n8. No Licenses Granted. Neither party grants any licenses, by implication or otherwise, under any patent, copyright, trademark, trade secret or other\nrights by disclosing Confidential Information under this Agreement.\n9. Definitive Agreement. The Company and Exar understand and agree that no contract or agreement providing for any transaction involving the\nCompany or Exar shall be deemed to exist between Exar and the Company unless and until a final definitive agreement has been executed and\ndelivered, and the Company and Exar hereby waive in advance, any claims (including, without limitation, breach of contract) in connection with any\nsuch transaction unless and until Exar and the Company shall have entered into a final definitive agreement. The Company and Exar also agree that\nunless and until a final definitive agreement between Exar and the Company has been executed and delivered, neither Exar nor the Company will be\nunder any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for the matters specifically\nagreed to herein. Both parties reserve the right, in their sole discretion, to reject any and all proposals made by the other party and to terminate\ndiscussions and negotiations with respect to a Transaction at any time. Both parties further understand that (i) either party shall be free to conduct\nany process for any transaction involving the Company or Exar, if and as such party in its sole discretion shall determine (including, without\nlimitation, negotiating with any other interested party and entering into a definitive agreement without prior notice to the other or any other person),\n(ii) any procedures relating to such process or transaction may be changed at any time in either party’s sole discretion without notice to the other or\nany other person, and (iii) neither party shall have any claims whatsoever against the other or any of its agents or representatives (including, without\nlimitation, RBCCM) arising out of or relating to any transaction involving the Company and Exar (other than any claims against the parties to a\ndefinitive agreement in accordance with the terms thereof) nor, unless a definitive agreement is entered into, against any third party with whom a\ntransaction is entered into.\n10. Standstill. Each of the Company and Exar hereby covenant and agree that, for a period of six months from the date of this Agreement, without\nthe prior written consent of the other party, which shall not be unreasonably withheld, it will not in any manner, directly or indirectly, or in\nconjunction with any other person or entity, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any\nacquisition of any securities (or beneficial ownership thereof) or assets of the other party, (ii) any tender or exchange offer, merger or other business\ncombination involving the other party, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect\nto the other party, or (iv) any “solicitation” of “proxies™ (as such terms are defined in Rule 14a-1\nunder the Securities Exchange Act of 1934) or consents to vote any securities of the other party; (b) form, join or in any way participate in a “group”\n(as such term is used in Section 13(d)(3) of the Securities Exchange Act of 1934) or otherwise act, alone or with others, to seek to acquire or affect\ncontrol or influence the management, board of directors or policies of the other party; (c) enter into any discussions or arrangements with any third\nparty regarding any of the foregoing; or (d) take any action which might force the other party to make a public announcement regarding any of the\nforegoing. Each of the Company and Exar further convenant and agree that, without the prior written consent of the other party, it will not directly or\nindirectly, enter into any agreement, arrangement or understanding, with any other person or entity regarding a possible transaction involving such\nother party of the type and for the term described above.\n11. Notices. Any notices to be given by either party to the other will be sufficiently given if delivered personally or transmitted by facsimile or if sent\nby registered mail, postage prepaid, to the parties at their respective addresses set out below, or to any other addresses as the parties may notify to the\nother from time to time in writing. This notice will be deemed to have been given at the time of delivery, if delivered in person or transmitted by\nfacsimile, or within three business days from the date of posting if sent by registered mail.\nIf to Hifn, Inc.:\n750 University Avenue\nLos Gatos, CA 95031\nAttention: Bill Walker, Chief Financial Officer\nFacsimile: (408) 399-3509\nIf to Exar Corporation:\n48720 Kato Road\nFremont, CA 94538\nAttention: Law Department\nFacsimile: 510-668-7002\n12. Trading in Securities. Both parties acknowledge that they are aware, and agree to advise their directors, officers, employees, agents and\nrepresentatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person\nwho has material, non-public information concerning the Transaction from purchasing or selling securities of a company that may be a party to such\nTransaction or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person\nis likely to purchase or sell such securities.\n13. Privileged Information and Work Product. To the extent any Confidential Information may include materials subject to attorney-client privilege,\nwork product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, Exar\nand the Company understand and agree that they both have a commonality of interest with respect to such matters and it is both our desire, intention\nand mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such\nmaterial or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential\nInformation provided by either party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine.\n14. Miscellaneous. This Agreement shall be binding upon, and inure to the benefit of, and be enforceable by, the parties hereto and their respective\nsuccessors and assigns, however, neither party\nshall have the right to assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the other party;\nprovided, however, that a successor in interest to a party by merger, by operation of law, or by assignment, purchase, or otherwise, of the entire\nbusiness of either party shall acquire all the rights and be subject to all the obligations of such party hereunder, without the necessity of obtaining\nsuch prior written consent; provided, however, that nothing herein shall prevent either party from assigning all of its rights and obligations under this\nAgreement to a subsidiary of that party upon written notice to the other party. This Agreement constitutes the complete agreement between the\nparties hereto with respect to the subject matter hereof and shall continue in full force and effect until terminated by mutual agreement of the parties\nhereto. The section headings used herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this\nAgreement. This Agreement shall be construed, performed and enforced in accordance with, and governed by, the internal laws of the State of\nCalifornia, without giving effect to the principles of conflicts of law thereof, and each party consents to personal jurisdiction in such state and\nvoluntarily submits to the jurisdiction of the courts of such state in any action or proceeding relating to this Agreement. Whenever possible, each\nprovision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision hereof is held\nto be invalid, illegal or unenforceable under any applicable law or rule in any jurisdiction, such provision will be ineffective only to the extent of\nsuch invalidity, illegality, or unenforceability, without invalidating the remainder of this Agreement. This Agreement may not be modified or\namended and no provision hereof may be waived, in whole or in part, except by a written agreement signed by the parties hereto. No waiver of any\nbreach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any subsequent breach or\ndefault of the same or similar nature. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original,\nbut all of which taken together shall constitute one and the same instrument.\n15.  Term. This Agreement shall remain in full force and effect for one year from the date hereof.\nIN WITNESS WHEREOF, the parties hereto have duly executed this Agreement effective as of the date first set forth above.\nHifn, Inc. Exar Corporation\nBy /s/ William R. Walker By /s/ Pedro P. Rodriguez\nTitle Chief Financial Officer Title President and Chief Executive Officer	EX-99.(E)(8) 3 dex99e8.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nExhibit (e)(8)\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-disclosure Agreement (the "Agreement") is made and entered into effective as of September 10, 2008, by and\nbetween Hifn, Inc. (the "Company."), and Exar Corporation ("Exar"). In consideration of the mutual covenants and conditions contained herein, to\ninduce the parties hereto to provide certain information to each other and for other good and valuable consideration, the receipt and adequacy of\nwhich are hereby acknowledged, the parties to this Agreement do hereby agree as follows:\n1. Definition of Confidential Information. For all purposes of this Agreement, the term "Confidential Information" shall collectively refer to all non-\npublic information or material disclosed or provided by one party to the other, either orally or in writing, or obtained by the recipient party from\na\nthird party or any other source, concerning any aspect of the business or affairs of the other party or its "affiliates" (as such term is defined in Rule\n12b-2 under the Securities Exchange Act of 1934), including without limitation, any information or material pertaining to products, formulae,\nspecifications, designs, processes, plans, policies, procedures, employees, work conditions, legal and regulatory affairs, assets, inventory,\ndiscoveries, trademarks, patents, manufacturing, packaging, distribution, sales, marketing, expenses, financial statements and data, customer and\nsupplier lists, raw materials, costs of goods and relationships with third parties. Confidential Information also includes any notes, analyses,\ncompilations, studies or other material or documents prepared by the recipient party which contain, reflect or are based, in whole or in part, on the\nConfidential Information.\nNotwithstanding the foregoing, Confidential Information shall not include information or material that (i) is publicly available or becomes publicly\navailable through no action or fault of the recipient party, (ii) was already in the recipient party's possession or known to the recipient party prior to\nbeing disclosed or provided to the recipient party by or on behalf of the other party, provided, that, the source of such information or material was\nnot bound by a contractual, legal or fiduciary obligation of confidentiality to the non-disclosing party or any other party with respect thereto,\n(iii) was or is obtained by the recipient party from a third party, provided, that, such third party was not bound by a contractual, legal or fiduciary\nobligation of confidentiality to the non-disclosing party or any other party with respect to such information or material, or (iv) is independently\ndeveloped by the recipient party without reference to the Confidential Information.\n2.\nRestrictions on Disclosure and Use. The Company and Exar do hereby covenant and agree with each other as follows:\n2.1 Non-disclosure. Both parties shall keep strictly confidential and shall not disclose, or cause or permit to be disclosed, to any person or\nentity, (i) any information about the potential sale of all or a portion of all of the assets or equity securities of the Company (the "Transaction") or the\nfact\nthat\neither party has received the Confidential Information and is considering the Transaction and all discussions between the Company and Exar\nrelated thereto, except that both parties may make such disclosure if it has received the reasonable advice of its outside counsel that such disclosure\nmust be made in order that such party not commit a violation of law, and (ii) the Confidential Information, except to those officers, employees or\nother authorized agents and representatives and professional consultants of such party to whom disclosure is reasonably necessary in connection with\nthe Transaction and who shall agree to be bound by the terms of this Agreement, and except as otherwise consented to in writing by the non-\ndisclosing party. Both parties shall take all actions reasonably necessary to ensure that the Confidential Information remains strictly confidential\nand\nis\nnot\ndisclosed\nto\nor\nseen,\nused\nor\nobtained\nby\nany\nperson\nor\nentity\nexcept\nin\naccordance\nwith\nthe\nterms\nof\nthis\nAgreement.\nBoth\nparties\nagree\nnot\nto\ncontact any employees, customers, or suppliers of the other party or its affiliates with respect to the Transaction or for the purpose of obtaining\ninformation for use in evaluating the Transaction, without the other party's prior written consent. Exar further agrees that all inquiries, requests for\ninformation and other communications concerning the Transaction shall be made only through RBC Capital Markets Corporation ("RBCCM")\nunless otherwise advised or permitted by Company.\nIn the event that either party is requested or required (by oral questions, interrogatories, requests for information or documents in legal\nproceedings, subpoena, civil investigative demand or other similar process or by any law, rule or regulation of any governmental agency or\nregulatory authority) to disclose any of the Confidential Information, such party shall provide the other party with prompt written notice of any such\nrequest or requirement so that such other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions\nof this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver, and if one party is nonetheless, legally\ncompelled to disclose Confidential Information, such party may, without liability hereunder, disclose to such tribunal only that portion of the\nConfidential Information which such counsel advises it is legally required to be disclosed, provided that such party shall use its best efforts to\npreserve the confidentiality of the Confidential Information, including, without limitation, by cooperating with the other party to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be afforded the Confidential Information by such tribunal.\n2.2 Ownership. All Confidential Information of a party shall remain the exclusive property of such party, and no right, title or interest in\nor\nto\nany of the Confidential Information or any material developed therefrom is transferred to the recipient party hereby or by its delivery to the recipient\nparty hereunder.\n2.3 Use. The recipient party shall use or cause the Confidentia Information to be used only to evaluate the Transaction and in a manner\nconsistent with the terms and conditions of this Agreement and at no time shall the recipient party otherwise use the Confidential Information for the\nbenefit of itself or any other third party or in any manner adverse to, or to the detriment of, the disclosing party or its affiliates or their respective\nshareholders.\n2.4 Other Parties Bound. All affiliates of a recipient party and all directors, officers, employees, agents and representatives of a recipient party\nor\nits\naffiliates\nshall\nbe\nincluded\nwithin\nthe\ndefinition\nof\nthe\nterm\n"recipientparty\nfor\npurposes\nof\nthis\nAgreement\nand\nshall\nbe\nbound\nby\nthe\nterms\nand conditions of this Agreement. The recipient party shall be responsible for any breaches of this Agreement by any of its affiliates and\nany\ndirectors, officers, employees, agents and representatives of such recipient party or its affiliates.\n3. No Solicitation. For a period of one year from the date of this Agreement, neither party will directly solicit the employment of any officer\nor\nemployee of the other party or its affiliates without the prior written consent of such other party.\n4.\nReturn of Confidential Information. A recipient party shall, upon accomplishing the limited purpose of evaluating the Transaction, or at any time\nupon the written request of the other party, immediately return to the other party all Confidential Information (including notes, writings and other\nmaterial developed therefrom by the recipient party) and all copies thereof and retain none for its files. Notwithstanding such return, both parties\nshall continue to be bound by this Agreement.\n5.\nNo Representations or Warranties. The Confidential Information is being provided under this Agreement "as is" and without any representation or\nwarranty of any kind, either express or implied, regarding the accuracy or completeness or other quality of the Confidential Information. In no event\nshall either party or its affiliates or any of their respective directors, officers, employees, agents or representatives (including, without limitation,\nRBCCM) have any liability to other party relating to or arising out of any use of the Confidential Information in accordance with this Agreement.\n6. Indemnification. Each party shall indemnify and hold harmless the other party and its affiliates and their respective directors, officers, employees,\nagents and representatives from and against any and all losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees\nand expenses) caused by or arising out of any direct breach of this Agreement or any direct breach for it is responsible hereunder, and any and\nall\nactions, suits, proceedings, claims, demands or judgments incident thereto.\n7.\nEquitable\nRemedies. Both parties hereby agree that their failure to perform any obligation or duty which they have agreed to perform under this\nAgreement may cause irreparable harm to the other party, which harm cannot be adequately compensated for by money damages. It is further agreed\nby both parties that an order of specific performance or for injunctive relief against the recipient party in the event of a breach or default under the\nterms of this Agreement would be equitable and would not work a hardship on the recipient party. Accordingly, in the event of a breach or default\nby\neither party hereunder, the non-defaulting party, without any bond or other security being required and in addition to whatever other remedies are or\nmight be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against, the other\nparty, with respect to any obligation or duty herein or breach thereof.\n8. No Licenses Granted. Neither party grants any licenses, by implication or otherwise, under any patent, copyright, trademark, trade secret or other\nrights by disclosing Confidential Information under this Agreement.\n9. Definitive Agreement. The Company and Exar understand and agree that no contract or agreement providing for any transaction involving the\nCompany or Exar shall be deemed to exist between Exar and the Company unless and until a final definitive agreement has been executed and\ndelivered, and the Company and Exar hereby waive in advance, any claims (including, without limitation, breach of contract) in connection with any\nsuch transaction unless and until Exar and the Company shall have entered into a final definitive agreement. The Company and Exar also agree that\nunless\nand\nuntil\na\nfinal\ndefinitive\nagreement\nbetween\nExar\nand\nthe\nCompany\nhas\nbeen\nexecuted\nand\ndelivered,\nneither\nExar\nnor\nthe\nCompany\nwill\nbe\nunder any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for the matters specifically\nagreed to herein. Both parties reserve the right, in their sole discretion, to reject any and all proposals made by the other party and to terminate\ndiscussions and negotiations with respect to a Transaction at any time. Both parties further understand that (i) either party shall be free to conduct\nany process for any transaction involving the Company or Exar, if and as such party in its sole discretion shall determine (including, without\nlimitation, negotiating with any other interested party and entering into a definitive agreement without prior notice to the other or any other person),\n(ii) any procedures relating to such process or transaction may be changed at any time in either party's sole discretion without notice to the other or\nany other person, and (iii) neither party shall have any claims whatsoever against the other or any of its agents or representatives (including, without\nlimitation, RBCCM) arising out of or relating to any transaction involving the Company and Exar (other than any claims against the parties to a\ndefinitive agreement in accordance with the terms thereof) nor, unless a definitive agreement is entered into, against any third party with whom\na\ntransaction is entered into.\n10. Standstill. Each of the Company and Exar hereby covenant and agree that, for a period of six months from the date of this Agreement, without\nthe prior written consent of the other party, which shall not be unreasonably withheld, it will not in any manner, directly or indirectly, or in\nconjunction with any other person or entity, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any\nacquisition of any securities (or beneficial ownership thereof) or assets of the other party, (ii) any tender or exchange offer, merger or other business\ncombination involving the other party, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect\nto the other party, or (iv) any "solicitation" of "proxies" (as such terms are defined in Rule 14a-1\nunder the Securities Exchange Act of 1934) or consents to vote any securities of the other party; (b) form, join or in any way participate in a "group"\n(as such term is used in Section 13(d)(3) of the Securities Exchange Act of 1934) or otherwise act, alone or with others, to seek to acquire or affect\ncontrol or influence the management, board of directors or policies of the other party; (c) enter into any discussions or arrangements with any third\nparty regarding any of the foregoing; or (d) take any action which might force the other party to make a public announcement regarding any of the\nforegoing. Each of the Company and Exar further convenant and agree that, without the prior written consent of the other party, it will not directly or\nindirectly, enter into any agreement, arrangement or understanding, with any other person or entity regarding a possible transaction involving\nsuch\nother party of the type and for the term described above.\n11. Notices. Any notices to be given by either party to the other will be sufficiently given if delivered personally or transmitted by facsimile or if sent\nby registered mail, postage prepaid, to the parties at their respective addresses set out below, or to any other addresses as the parties may notify to the\nother from time to time in writing. This notice will be deemed to have been given at the time of delivery, if delivered in person or transmitted by\nfacsimile, or within three business days from the date of posting if sent by registered mail.\nIf to Hifn, Inc.:\n750 University Avenue\nLos Gatos, CA 95031\nAttention: Bill Walker, Chief Financial Officer\nFacsimile: (408) 399-3509\nIf to Exar Corporation:\n48720 Kato Road\nFremont, CA 94538\nAttention: Law Department\nFacsimile: 510-668-7002\n12. Trading in Securities. Both parties acknowledge that they are aware, and agree to advise their directors, officers, employees, agents and\nrepresentatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person\nwho has material, non-public information concerning the Transaction from purchasing or selling securities of a company that may be a party to such\nTransaction or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person\nis likely to purchase or sell such securities.\n13. Privileged Information and Work Product. To the extent any Confidential Information may include materials subject to attorney-client privilege,\nwork product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, Exar\nand the Company understand and agree that they both have a commonality of interest with respect to such matters and it is both our desire, intention\nand mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such\nmaterial or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential\nInformation provided by either party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine.\n14. Miscellaneous. This Agreement shall be binding upon, and inure to the benefit of, and be enforceable by, the parties hereto and their respective\nsuccessors and assigns, however, neither party\nshall have the right to assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the other party;\nprovided, however, that a successor in interest to a party by merger, by operation of law, or by assignment, purchase, or otherwise, of the entire\nbusiness of either party shall acquire all the rights and be subject to all the obligations of such party hereunder, without the necessity of obtaining\nsuch prior written consent; provided, however, that nothing herein shall prevent either party from assigning all of its rights and obligations under this\nAgreement to a subsidiary of that party upon written notice to the other party. This Agreement constitutes the complete agreement between the\nparties hereto with respect to the subject matter hereof and shall continue in full force and effect until terminated by mutual agreement of the parties\nhereto. The section headings used herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this\nAgreement. This Agreement shall be construed, performed and enforced in accordance with, and governed by, the internal laws of the State of\nCalifornia, without giving effect to the principles of conflicts of law thereof, and each party consents to personal jurisdiction in such state and\nvoluntarily submits to the jurisdiction of the courts of such state in any action or proceeding relating to this Agreement. Whenever possible, each\nprovision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision hereof is held\nto be invalid, illegal or unenforceable under any applicable law or rule in any jurisdiction, such provision will be ineffective only to the extent\nof\nsuch invalidity, illegality, or unenforceability, without invalidating the remainder of this Agreement. This Agreement may not be modified or\namended and no provision hereof may be waived, in whole or in part, except by a written agreement signed by the parties hereto. No waiver of any\nbreach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any subsequent breach\nor\ndefault of the same or similar nature. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original,\nbut all of which taken together shall constitute one and the same instrument.\n15.\nTerm. This Agreement shall remain in full force and effect for one year from the date hereof.\nIN WITNESS WHEREOF, the parties hereto have duly executed this Agreement effective as of the date first set forth above.\nHifn, Inc.\nExar Corporation\nBy\n/s/ William R. Walker\nBy /s/ Pedro P. Rodriguez\nTitle Chief Financial Officer\nTitle President and Chief Executive Officer	EX-99.(E)(8) 3 dex99e8.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nExhibit (e)(8)\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-disclosure Agreement (the “Agreement”) is made and entered into effective as of September 10, 2008, by and\nbetween Hifn, Inc. (the “Company”), and Exar Corporation (“Exar”). In consideration of the mutual covenants and conditions contained herein, to\ninduce the parties hereto to provide certain information to each other and for other good and valuable consideration, the receipt and adequacy of\nwhich are hereby acknowledged, the parties to this Agreement do hereby agree as follows:\n1. Definition of Confidential Information. For all purposes of this Agreement, the term “Confidential Information” shall collectively refer to all non-\npublic information or material disclosed or provided by one party to the other, either orally or in writing, or obtained by the recipient party from a\nthird party or any other source, concerning any aspect of the business or affairs of the other party or its “affiliates” (as such term is defined in Rule\n12b-2 under the Securities Exchange Act of 1934), including without limitation, any information or material pertaining to products, formulae,\nspecifications, designs, processes, plans, policies, procedures, employees, work conditions, legal and regulatory affairs, assets, inventory,\ndiscoveries, trademarks, patents, manufacturing, packaging, distribution, sales, marketing, expenses, financial statements and data, customer and\nsupplier lists, raw materials, costs of goods and relationships with third parties. Confidential Information also includes any notes, analyses,\ncompilations, studies or other material or documents prepared by the recipient party which contain, reflect or are based, in whole or in part, on the\nConfidential Information.\nNotwithstanding the foregoing, Confidential Information shall not include information or material that (i) is publicly available or becomes publicly\navailable through no action or fault of the recipient party, (ii) was already in the recipient party’s possession or known to the recipient party prior to\nbeing disclosed or provided to the recipient party by or on behalf of the other party, provided, that, the source of such information or material was\nnot bound by a contractual, legal or fiduciary obligation of confidentiality to the non-disclosing party or any other party with respect thereto,\n(iii) was or is obtained by the recipient party from a third party, provided, that, such third party was not bound by a contractual, legal or fiduciary\nobligation of confidentiality to the non-disclosing party or any other party with respect to such information or material, or (iv) is independently\ndeveloped by the recipient party without reference to the Confidential Information.\n2. Restrictions on Disclosure and Use. The Company and Exar do hereby covenant and agree with each other as follows:\n2.1 Non-disclosure. Both parties shall keep strictly confidential and shall not disclose, or cause or permit to be disclosed, to any person or\nentity, (i) any information about the potential sale of all or a portion of all of the assets or equity securities of the Company (the “Transaction”) or the\nfact that either party has received the Confidential Information and is considering the Transaction and all discussions between the Company and Exar\nrelated thereto, except that both parties may make such disclosure if it has received the reasonable advice of its outside counsel that such disclosure\nmust be made in order that such party not commit a violation of law, and (ii) the Confidential Information, except to those officers, employees or\nother authorized agents and representatives and professional consultants of such party to whom disclosure is reasonably necessary in connection with\nthe Transaction and who shall agree to be bound by the terms of this Agreement, and except as otherwise consented to in writing by the non-\ndisclosing party. Both parties shall take all actions reasonably necessary to ensure that the Confidential Information remains strictly confidential and\nis not disclosed to or seen, used or obtained by any person or entity except in accordance with the terms of this Agreement. Both parties agree not to\ncontact any employees, customers, or suppliers of the other party or its affiliates with respect to the Transaction or for the purpose of obtaining\ninformation for use in evaluating the Transaction, without the other party’s prior written consent. Exar further agrees that all inquiries, requests for\ninformation and other communications concerning the Transaction shall be made only through RBC Capital Markets Corporation (“RBCCM”)\nunless otherwise advised or permitted by Company.\nIn the event that either party is requested or required (by oral questions, interrogatories, requests for information or documents in legal\nproceedings, subpoena, civil investigative demand or other similar process or by any law, rule or regulation of any governmental agency or\nregulatory authority) to disclose any of the Confidential Information, such party shall provide the other party with prompt written notice of any such\nrequest or requirement so that such other party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions\nof this Agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver, and if one party is nonetheless, legally\ncompelled to disclose Confidential Information, such party may, without liability hereunder, disclose to such tribunal only that portion of the\nConfidential Information which such counsel advises it is legally required to be disclosed, provided that such party shall use its best efforts to\npreserve the confidentiality of the Confidential Information, including, without limitation, by cooperating with the other party to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be afforded the Confidential Information by such tribunal.\n2.2 Ownership. All Confidential Information of a party shall remain the exclusive property of such party, and no right, title or interest in or to\nany of the Confidential Information or any material developed therefrom is transferred to the recipient party hereby or by its delivery to the recipient\nparty hereunder.\n2.3 Use. The recipient party shall use or cause the Confidential Information to be used only to evaluate the Transaction and in a manner\nconsistent with the terms and conditions of this Agreement and at no time shall the recipient party otherwise use the Confidential Information for the\nbenefit of itself or any other third party or in any manner adverse to, or to the detriment of, the disclosing party or its affiliates or their respective\nshareholders.\n2.4 Other Parties Bound. All affiliates of a recipient party and all directors, officers, employees, agents and representatives of a recipient party\nor its affiliates shall be included within the definition of the term “recipient party” for purposes of this Agreement and shall be bound by the terms\nand conditions of this Agreement. The recipient party shall be responsible for any breaches of this Agreement by any of its affiliates and any\ndirectors, officers, employees, agents and representatives of such recipient party or its affiliates.\n3. No Solicitation. For a period of one year from the date of this Agreement, neither party will directly solicit the employment of any officer or\nemployee of the other party or its affiliates without the prior written consent of such other party.\n4. Return of Confidential Information. A recipient party shall, upon accomplishing the limited purpose of evaluating the Transaction, or at any time\nupon the written request of the other party, immediately return to the other party all Confidential Information (including notes, writings and other\nmaterial developed therefrom by the recipient party) and all copies thereof and retain none for its files. Notwithstanding such return, both parties\nshall continue to be bound by this Agreement.\n5. No Representations or Warranties. The Confidential Information is being provided under this Agreement “as is” and without any representation or\nwarranty of any kind, either express or implied, regarding the accuracy or completeness or other quality of the Confidential Information. In no event\nshall either party or its affiliates or any of their respective directors, officers, employees, agents or representatives (including, without limitation,\nRBCCM) have any liability to other party relating to or arising out of any use of the Confidential Information in accordance with this Agreement.\n6. Indemnification. Each party shall indemnify and hold harmless the other party and its affiliates and their respective directors, officers, employees,\nagents and representatives from and against any and all losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees\nand expenses) caused by or arising out of any direct breach of this Agreement or any direct breach for it is responsible hereunder, and any and all\nactions, suits, proceedings, claims, demands or judgments incident thereto.\n7. Equitable Remedies. Both parties hereby agree that their failure to perform any obligation or duty which they have agreed to perform under this\nAgreement may cause irreparable harm to the other party, which harm cannot be adequately compensated for by money damages. It is further agreed\nby both parties that an order of specific performance or for injunctive relief against the recipient party in the event of a breach or default under the\nterms of this Agreement would be equitable and would not work a hardship on the recipient party. Accordingly, in the event of a breach or default by\neither party hereunder, the non-defaulting party, without any bond or other security being required and in addition to whatever other remedies are or\nmight be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against, the other\nparty, with respect to any obligation or duty herein or breach thereof.\n8. No Licenses Granted. Neither party grants any licenses, by implication or otherwise, under any patent, copyright, trademark, trade secret or other\nrights by disclosing Confidential Information under this Agreement.\n9. Definitive Agreement. The Company and Exar understand and agree that no contract or agreement providing for any transaction involving the\nCompany or Exar shall be deemed to exist between Exar and the Company unless and until a final definitive agreement has been executed and\ndelivered, and the Company and Exar hereby waive in advance, any claims (including, without limitation, breach of contract) in connection with any\nsuch transaction unless and until Exar and the Company shall have entered into a final definitive agreement. The Company and Exar also agree that\nunless and until a final definitive agreement between Exar and the Company has been executed and delivered, neither Exar nor the Company will be\nunder any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for the matters specifically\nagreed to herein. Both parties reserve the right, in their sole discretion, to reject any and all proposals made by the other party and to terminate\ndiscussions and negotiations with respect to a Transaction at any time. Both parties further understand that (i) either party shall be free to conduct\nany process for any transaction involving the Company or Exar, if and as such party in its sole discretion shall determine (including, without\nlimitation, negotiating with any other interested party and entering into a definitive agreement without prior notice to the other or any other person),\n(ii) any procedures relating to such process or transaction may be changed at any time in either party’s sole discretion without notice to the other or\nany other person, and (iii) neither party shall have any claims whatsoever against the other or any of its agents or representatives (including, without\nlimitation, RBCCM) arising out of or relating to any transaction involving the Company and Exar (other than any claims against the parties to a\ndefinitive agreement in accordance with the terms thereof) nor, unless a definitive agreement is entered into, against any third party with whom a\ntransaction is entered into.\n10. Standstill. Each of the Company and Exar hereby covenant and agree that, for a period of six months from the date of this Agreement, without\nthe prior written consent of the other party, which shall not be unreasonably withheld, it will not in any manner, directly or indirectly, or in\nconjunction with any other person or entity, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any\nacquisition of any securities (or beneficial ownership thereof) or assets of the other party, (ii) any tender or exchange offer, merger or other business\ncombination involving the other party, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect\nto the other party, or (iv) any “solicitation” of “proxies” (as such terms are defined in Rule 14a-1\nunder the Securities Exchange Act of 1934) or consents to vote any securities of the other party; (b) form, join or in any way participate in a “group”\n(as such term is used in Section 13(d)(3) of the Securities Exchange Act of 1934) or otherwise act, alone or with others, to seek to acquire or affect\ncontrol or influence the management, board of directors or policies of the other party; (c) enter into any discussions or arrangements with any third\nparty regarding any of the foregoing; or (d) take any action which might force the other party to make a public announcement regarding any of the\nforegoing. Each of the Company and Exar further convenant and agree that, without the prior written consent of the other party, it will not directly or\nindirectly, enter into any agreement, arrangement or understanding, with any other person or entity regarding a possible transaction involving such\nother party of the type and for the term described above.\n11. Notices. Any notices to be given by either party to the other will be sufficiently given if delivered personally or transmitted by facsimile or if sent\nby registered mail, postage prepaid, to the parties at their respective addresses set out below, or to any other addresses as the parties may notify to the\nother from time to time in writing. This notice will be deemed to have been given at the time of delivery, if delivered in person or transmitted by\nfacsimile, or within three business days from the date of posting if sent by registered mail.\nIf to Hifn, Inc.:\n750 University Avenue\nLos Gatos, CA 95031\nAttention: Bill Walker, Chief Financial Officer\nFacsimile: (408) 399-3509\nIf to Exar Corporation:\n48720 Kato Road\nFremont, CA 94538\nAttention: Law Department\nFacsimile: 510-668-7002\n12. Trading in Securities. Both parties acknowledge that they are aware, and agree to advise their directors, officers, employees, agents and\nrepresentatives who are informed as to the matters which are the subject of this Agreement, that the United States securities laws prohibit any person\nwho has material, non-public information concerning the Transaction from purchasing or selling securities of a company that may be a party to such\nTransaction or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person\nis likely to purchase or sell such securities.\n13. Privileged Information and Work Product. To the extent any Confidential Information may include materials subject to attorney-client privilege,\nwork product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, Exar\nand the Company understand and agree that they both have a commonality of interest with respect to such matters and it is both our desire, intention\nand mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such\nmaterial or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential\nInformation provided by either party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable\nprivilege shall remain entitled to such protection under these privileges, this agreement, and under the joint defense doctrine.\n14. Miscellaneous. This Agreement shall be binding upon, and inure to the benefit of, and be enforceable by, the parties hereto and their respective\nsuccessors and assigns, however, neither party\nshall have the right to assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the other party;\nprovided, however, that a successor in interest to a party by merger, by operation of law, or by assignment, purchase, or otherwise, of the entire\nbusiness of either party shall acquire all the rights and be subject to all the obligations of such party hereunder, without the necessity of obtaining\nsuch prior written consent; provided, however, that nothing herein shall prevent either party from assigning all of its rights and obligations under this\nAgreement to a subsidiary of that party upon written notice to the other party. This Agreement constitutes the complete agreement between the\nparties hereto with respect to the subject matter hereof and shall continue in full force and effect until terminated by mutual agreement of the parties\nhereto. The section headings used herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this\nAgreement. This Agreement shall be construed, performed and enforced in accordance with, and governed by, the internal laws of the State of\nCalifornia, without giving effect to the principles of conflicts of law thereof, and each party consents to personal jurisdiction in such state and\nvoluntarily submits to the jurisdiction of the courts of such state in any action or proceeding relating to this Agreement. Whenever possible, each\nprovision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision hereof is held\nto be invalid, illegal or unenforceable under any applicable law or rule in any jurisdiction, such provision will be ineffective only to the extent of\nsuch invalidity, illegality, or unenforceability, without invalidating the remainder of this Agreement. This Agreement may not be modified or\namended and no provision hereof may be waived, in whole or in part, except by a written agreement signed by the parties hereto. No waiver of any\nbreach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any subsequent breach or\ndefault of the same or similar nature. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original,\nbut all of which taken together shall constitute one and the same instrument.\n15. Term. This Agreement shall remain in full force and effect for one year from the date hereof.\nIN WITNESS WHEREOF, the parties hereto have duly executed this Agreement effective as of the date first set forth above.\nHifn, Inc.\nExar Corporation\nBy /s/ William R. Walker\nBy /s/ Pedro P. Rodriguez\nTitle Chief Financial Officer\nTitle President and Chief Executive Officer
+968fde7b3c8de1908029eab706e963e9.pdf	effective_date jurisdiction party term	EX-10.5 4 dex105.htm CONFIDENTIALITY, NON-COMPETITION AND INTELLECTUAL PROPERTY\nAGREEMENT\nEXHIBIT 10.5\nCONFIDENTIALITY, NON-COMPETITION AND INTELLECTUAL PROPERTY AGREEMENT (this “Agreement”), dated as\nof February 28, 2006 (the “Effective Date”), among Gentiva Health Services, Inc., a Delaware corporation (“Gentiva”; together with all subsidiaries\nof Gentiva, “Parent”), The Healthfield Group, Inc., a Delaware corporation (“Healthfield”; together with all subsidiaries of Healthfield, the\n“Healthfield Group”), (together with the Parent and the Healthfield Group, the “Companies”) and Tony Strange (“Executive”).\nWHEREAS, the Companies are currently engaged in the business of, among other things, providing comprehensive home health care\nservices.\nWHEREAS, Tara Acquisition Sub Corp., a wholly owned subsidiary of Gentiva, has merged with and into Healthfield (the “Merger”).\nWHEREAS, Executive had an employment agreement with the Healthfield Group (the “Old Employment Agreement”), which\nExecutive acknowledges has been terminated as of the date hereof, and Executive has a letter severance agreement with the Companies dated the\ndate hereof (the “Letter Agreement”). In such role, Executive will receive or has received specific confidential information relating to the businesses\nof the Companies, which confidential information is or was necessary to enable Executive to perform Executive’s duties. Executive will play or has\nplayed a significant role in the development and management of the businesses of the Companies and has been or will be entrusted with the\nCompanies’ confidential information relating to the Companies’ customers, manufacturers, distributors and others.\nWHEREAS, Executive is a holder of Healthfield preferred stock and Healthfield common stock and is receiving significant\nconsideration as a result of the Merger.\nWHEREAS, it is a condition to the closing of the Merger that Executive enter into this Agreement.\nNOW, THEREFORE, it is mutually agreed as follows:\n1. Confidentiality.\n(a) Executive shall not, during the term of any employment with the Companies or at any time thereafter, directly or indirectly, divulge,\nuse, furnish, disclose, exploit or make available to any person or entity, whether or not a competitor of the Companies, any Unauthorized disclosure\nof Confidential Information. In the event that Executive is requested or required (by deposition, interrogatories, requests for information or\ndocuments in legal proceedings, subpoenas, civil demand or similar process) to disclose any Confidential Information, Executive will give the\nCompanies prompt written notice of such request or requirement so that the Companies may seek an appropriate protective order or other remedy\nand/or waive compliance with the provisions of this Agreement, and Executive will cooperate with the Companies’ efforts to obtain such protective\norder. In the event that such protective order or other remedy is not obtained or the Companies waive compliance with the relevant provisions of this\nAgreement, Executive is permitted to furnish that Confidential Information which is legally required to be disclosed and will use his reasonable\nefforts to obtain assurances that confidential treatment will be accorded to such information.\nAs used herein, the term:\n“Confidential Information” shall mean trade secrets, confidential or proprietary information, and all other information, documents or\nmaterials, relating to, owned, developed or possessed by any of the Companies, whether in tangible or intangible form. Confidential Information\nincludes, but is not limited to, (i) financial information, (ii) products, (iii) product and service costs, prices, profits and sales, (iv) new business,\ntechnical or other ideas, proposals, plans and designs, (v) business strategies, (vi) product and service plans, (vii) marketing plans and studies,\n(viii) forecasts, (ix) budgets, (x) projections, (xi) computer programs, (xii) data bases and the documentation (and information contained therein),\n(xiii) computer access codes and similar information, (xiv) source codes, (xv) know-how, technologies, concepts and designs, including, without\nlimitation, patent applications, (xvi) research projects and all information connected with research and development efforts, (xvii) records,\n(xviii) business methods and recommendations, (xix) existing or prospective client, customer, vendor and supplier information (including, but not\nlimited to, identities, needs, transaction histories, volumes, characteristics, agreements, prices, identities of individual contacts, and spending,\npreferences or habits), (xx) training manuals and similar materials used by the Companies in conducting its business operations, (xxi) personnel files\nof employees, directors and independent contractors of any of the Companies, (xxii) competitive analyses, (xxiii) contracts with other parties,\n(xxiv) product formulations, and (xxv) other confidential or proprietary information that has not been made available to the trade or general public\nby any of the Companies. Confidential Information shall not include any information that (A) is or becomes generally available to the public or the\ntrade other than as a result of a disclosure by the Executive in violation of this Agreement or (B) becomes available to the Executive on a non-\nconfidential basis from a source other than the Companies which is not prohibited from disclosing such information to the Executive by a legal,\ncontractual or fiduciary obligation to the Employer or any other Person.\n“Unauthorized” shall mean: (i) in contravention of the policies or procedures of any of the Companies; (ii) otherwise inconsistent with\nany measures taken by any of the Companies to protect its interests in the Confidential Information; (iii) in contravention of any lawful instruction or\ndirective, either written or oral, of the board of directors, or an officer or employee of any of the Companies empowered to issue such instruction or\ndirective; (iv) in contravention of any duty existing under law or contract; or (v) to the detriment of any of the Companies; but shall not include any\ndisclosure which is customary in the normal course of business in the trade and consistent with the past practice of the Companies.\n(b) Executive further agrees to take all reasonable measures to prevent unauthorized persons or entities from obtaining or using\nConfidential Information. Promptly upon termination, for any reason, of Executive’s employment with the Companies, Executive agrees to deliver to\nthe Companies all property and materials within Executive’s possession or control which belong to any of the Companies or which contain\nConfidential Information.\n(c) Nothing in this Section 1 is intended to preclude Executive from using his general knowledge and know-how regarding the\nmanagement of a health care service provider in any future employment or business venture; provided, that Executive’s use of such general\nknowledge and know-how does not violate the provisions of Section 2 hereof.\n2. Non-Competition; Non-Solicitation.\n(a) For a period of time equal to the later of the fifth anniversary of the effective date of the Merger or the second anniversary after the\ntermination of the Executive’s employment with the Companies (the “Noncompete Period”), Executive will not, directly or indirectly, engage,\nanywhere in the United States, whether such engagement be as an individual, officer, director, proprietor, consultant, employee, partner, member,\nstockholder, investor (other than solely as a holder of less than three percent (3%) of the outstanding capital stock of a corporation whose shares are\npublicly traded on a national securities exchange or through a national market system or registered pursuant to Section 12(g) of the Securities\nExchange Act of 1934, as amended), creditor, consultant, advisor, sales representative, agent or other participant, in a Restricted Business.\n(b) During the Noncompete Period, Executive shall not directly or indirectly (i) solicit, divert, or entice away any person who is an\nofficer, agent, or employee of, or consultant or advisor to, any of the Companies to accept employment or a consultancy with a third party or (ii) hire\nany current or future employees of the Companies, unless such person has not been employed by any of the Companies for not less than 12 months\n(other than, Lisa Shunnarah).\n(c) During the Noncompete Period, Executive shall not solicit or accept on behalf of yourself or anyone else any of the Companies’\ncustomers and/or clients with a view to sell or provide any product or service competitive with any product or service sold or provided or under\ndevelopment by the Companies. For the purposes of this Agreement, the term “customer” and/or “client” shall include any person or entity to whom\nthe Companies, through its offices in which you had direct or indirect oversight and managerial duties during your employment with the Companies,\nhave sold, provided or been obligated to provide, any service or product, or who has otherwise received any service or benefit from the Companies,\nwithin 24 months prior to the termination of Executive’s employment with the Companies.\n“Restricted Business” shall mean (i) the business operations operated by the Companies; (ii) home health services, including but not\nlimited to the provision of skilled nursing, rehabilitative therapy services (physical, occupational and speech therapy and social work), home health\naid care, and homemaker services to pediatric, adult, and elderly patients in their homes or places of residence; (iii) hospice care; (iv) home/durable\nmedical equipment and/or respiratory services; and (v) infusion therapy.\nNotwithstanding the foregoing, nothing in this Section 2 shall prohibit Executive from (i) owning any amount of stock in Gentiva or\nserving in any capacity as an officer, director or employee of Gentiva or (ii) making passive investments in another entity (e.g. a private equity or\ndebt fund) not controlled by Executive that makes investments, whether debt or equity, in other entities that may be engaged in a Restricted\nBusiness, provided that Executive does not directly or indirectly own or control in excess of 10% of any Restricted Business.\n3. Intellectual Property. Executive agrees that during the term of Executive’s employment with the Companies, any and all inventions,\ndiscoveries, innovations, writings, domain names, improvements, trade secrets, designs, drawings, business processes, secret\nprocesses and know-how, whether or not patentable or a copyright or trademark, which Executive may create, conceive, develop or make, either\nalone or in conjunction with others and related or in any way connected with any of the Companies, its strategic plans, products, processes, apparatus\nor business now or hereafter carried on by any of the Companies (collectively, “Inventions”), shall be fully and promptly disclosed to the Companies\nand shall be the sole and exclusive property of the Companies (as they shall determine) as against Executive or any of Executive’s assignees.\nRegardless of the status of Executive’s employment by the Companies, Executive and Executive’s heirs, assigns and representatives shall promptly\nassign to the Companies any and all right, title and interest in and to such Inventions made during the term of Executive’s employment by any of the\nCompanies. Executive represents that there are no Inventions with respect to any of the Companies conceived of, developed or made by Executive\nbefore the date of this Agreement which have not been disclosed to and assigned to the Companies.\nWhether during or after Executive’s employment with the Companies, Executive further agrees to execute and acknowledge all papers\nand to do, at the Companies’ expense, any and all other things necessary for or incident to the applying for, obtaining and maintaining of such letters\npatent, copyrights, trademarks or other intellectual property rights, as the case may be, and to execute, on request, all papers necessary to assign and\ntransfer such Inventions, copyrights, patents, patent applications and other intellectual property rights to the Companies, their successors and assigns\n(as they shall determine). In the event that the Companies are unable, after reasonable efforts and, in any event, after thirty (30) business days, to\nsecure Executive’s signature on a written assignment to the Companies, of any application for letters patent, trademark registration or to any\ncommon law or statutory copyright or other property right therein to which the Companies are entitled to ownership pursuant to this Section 3,\nwhether because of his physical or mental incapacity, or for any other reason whatsoever, Executive irrevocably designates and appoints the\nSecretary or any Assistant Secretary of the Parent as Executive’s attorney-in-fact to act on Executive’s behalf to execute and file any such\napplications and to do all lawfully permitted acts to further the prosecution or issuance of such assignments, letters patent, copyright or trademark;\nprovided, however, that the provisions of this sentence shall not apply if the Executive disputes in writing the Companies’ ownership of the\nintellectual property rights which are the subject of the proposed assignment.\n4. Non-Disparagement. Executive shall not make any false, defamatory or disparaging statements about any of the Companies or any of its\nofficers, directors and employees. No officer or director of the Parent shall make any false, defamatory or disparaging statements about the\nExecutive.\n5. No Right to Continued Employment. Nothing in this Agreement shall confer upon Executive any right to continue in the employ of the\nCompanies or shall interfere with or restrict in any way the rights of the Companies, which, subject to the terms of the Letter Agreement, are hereby\nreserved, to discharge Executive at any time for any reason whatsoever, with or without cause.\n6. No Conflicting Agreements. Executive warrants that Executive is not bound by the terms of a confidentiality agreement, non-competition or\nother agreement with a third party that would conflict with Executive’s obligations hereunder.\n7. Remedies. The period of time during which the restrictions set forth in Section 2(a) hereof will be in effect will be extended by the length of\ntime during which Executive is in breach of the terms of those provisions as finally determined by any court of competent jurisdiction.\n8. Successors and Assigns. This Agreement shall be binding upon Executive and Executive’s heirs, assigns and representatives and inure to the\nbenefit of the Companies and their successors and assigns, including without limitation any entity to which substantially all of the assets or the\nbusiness of any of the Companies are sold or transferred. The obligations of Executive are personal to Executive and shall not be assigned by\nExecutive. The Companies may assign its rights under this Agreement to any affiliate of the Companies that employs Executive.\n9. Severability. It is expressly agreed that if any restrictions set forth in this Agreement are found by any court having jurisdiction to be\nunreasonable because they are too broad in any respect, then and in each such case, the remaining provisions herein contained shall, nevertheless,\nremain effective, and this Agreement, or any portion hereof, shall be considered to be amended, so as to be considered reasonable and enforceable by\nsuch court, and the court shall specifically have the right to restrict the time period or the business or geographical scope of such restrictions to any\nportion of the time period, business or geographic areas to the extent the court deems such restriction to be necessary to cause the covenants to be\nenforceable and, in such event, the covenants shall be enforced to the extent so permitted and the remaining provisions shall be unaffected thereby.\nIn such event, the parties hereto agree to execute all documents necessary to evidence such amendment so as to eliminate or modify any such\nunreasonable provision in order to carry out the intent of this Agreement insofar as possible and to render this Agreement enforceable in all respects\nas so modified. The covenants contained in this Section 9 shall be construed to extend to separate jurisdictions or subjurisdictions of the United\nStates in which the Companies, during the term of Executive’s employment, have been or are engaged in business, and to the extent that any such\ncovenant shall be illegal and/or unenforceable with respect to any jurisdiction, said covenant shall not be affected thereby with respect to each other\njurisdiction, such covenants with respect to each jurisdiction being construed as severable and independent. Any covenant on Executive’s part\ncontained hereinabove, which may not be specifically enforceable, shall nevertheless, if breached, give rise to a cause of action for monetary\ndamages. The restrictive covenant provisions of this Agreement shall govern to the extent there is any conflict between their terms and the terms of\nany other agreement or understanding with the Companies.\n10. Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed given (i) when delivered\npersonally by hand (with written confirmation of receipt), (ii) when sent by facsimile (with written confirmation of transmission) or (iii) one\nBusiness Day following the day sent by overnight courier (with written confirmation of receipt), in each case at the following addresses and\nfacsimile numbers (or to such other address or facsimile number as a party may have specified by notice given to the other party pursuant to this\nprovision):\nIf to the Companies, to:\nwith a copy to:\nGentiva Health Services, Inc.\n3 Huntington Quadrangle, Suite 200S\nMelville, NY 11747-4627\nAttention: Stephen B. Paige, General Counsel\nFacsimile: (913) 814-5920\nWeil, Gotshal & Manges LLP\n767 Fifth Avenue\nNew York, NY 10153\nAttention: Jeffrey J. Weinberg, Esq.\nFacsimile: (212) 310-8007\nIf to the Executive, to:\nExecutive’s address set forth\nbeneath Executive’s\nsignature on this Agreement.\nGreenberg Traurig\nThe Forum\n3290 Northside Parkway, NW\nSuite 1400\nAtlanta, GA 30327\nAttention: Gary Snyder, Esq.\nFacsimile: (678) 553-2212\n11. Amendment. No provision of this Agreement may be modified, amended, waived or discharged in any manner except by a written\ninstrument executed by the Companies and Executive.\n12. Entire Agreement. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, and\nsupersedes all prior agreements and understandings of the parties hereto, oral or written, with respect to the subject matter hereof.\n13. Waiver, etc. The failure of the Companies to enforce at any time any of the provisions of this Agreement shall not be deemed or construed\nto be a waiver of any such provision, nor in any way affect the validity of this Agreement or any provision hereof or the right of the Companies to\nenforce thereafter each and every provision of this Agreement. No waiver of any breach of any of the provisions of this Agreement by the\nCompanies shall be effective unless set forth in a written instrument executed by the Companies, and no waiver of any such breach shall be\nconstrued or deemed to be a waiver of any other or subsequent breach.\n14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to\ncontracts made and to be wholly performed therein without reference to conflicts of law principles, except as otherwise provided.\n15. Enforcement. If any party shall institute legal action to enforce or interpret the terms and conditions of this Agreement or to collect any\nmonies under it, venue for any such action shall be the State of New York. Each party irrevocably consents to the jurisdiction of the courts located in\nthe State of New York for all suits or actions arising out of this Agreement. Each party hereto waives to the fullest extent possible, the defense of an\ninconvenient forum, and each agrees that a final judgment in any action shall be conclusive and may be enforced in other jurisdictions by suit on the\njudgment or in any other manner provided by law.\n[Next Page is Signature Page]\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day written above.\nGENTIVA HEALTH SERVICES, INC.\nBy: /s/ John R. Potapchuk\nName: John R. Potapchuk\nTitle: Senior Vice President, Chief Financial Officer and Treasurer\nTHE HEALTHFIELD GROUP, INC.\nBy: /s/ John R. Potapchuk\nName: John R. Potapchuk\nTitle: Senior Vice President, Chief Financial Officer and Treasurer\nTONY STRANGE\n/s/ Tony Strange\nTony Strange\n3350 Riverwood Parkway\nSuite 1400\nAtlanta, GA 30339	EX-10.5 4 dex105.htm CONFIDENTIALITY, NON-COMPETITION AND INTELLECTUAL PROPERTY\nAGREEMENT\nEXHIBIT 10.5\nCONFIDENTIALITY, NON-COMPETITION AND INTELLECTUAL PROPERTY AGREEMENT (this “Agreement”), dated as\nof February 28, 2006 (the “Effective Date”), among Gentiva Health Services, Inc., a Delaware corporation (“Gentiva”; together with all subsidiaries\nof Gentiva, “Parent”), The Healthfield Group, Inc., a Delaware corporation (“Healthfield”; together with all subsidiaries of Healthfield, the\n“Healthfield Group”), (together with the Parent and the Healthfield Group, the “Companies”) and Tony Strange (“Executive”).\n \n \nWHEREAS, the Companies are currently engaged in the business of, among other things, providing comprehensive home health care\nservices.\nWHEREAS, Tara Acquisition Sub Corp., a wholly owned subsidiary of Gentiva, has merged with and into Healthfield (the “Merger”).\nWHEREAS, Executive had an employment agreement with the Healthfield Group (the “Old Employment Agreement”), which\nExecutive acknowledges has been terminated as of the date hereof, and Executive has a letter severance agreement with the Companies dated the\ndate hereof (the “Letter Agreement”). In such role, Executive will receive or has received specific confidential information relating to the businesses\nof the Companies, which confidential information is or was necessary to enable Executive to perform Executive’s duties. Executive will play or has\nplayed a significant role in the development and management of the businesses of the Companies and has been or will be entrusted with the\nCompanies’ confidential information relating to the Companies’ customers, manufacturers, distributors and others.\n \n \nWHEREAS, Executive is a holder of Healthfield preferred stock and Healthfield common stock and is receiving significant\nconsideration as a result of the Merger.\nWHEREAS, it is a condition to the closing of the Merger that Executive enter into this Agreement.\nNOW, THEREFORE, it is mutually agreed as follows:\n1. Confidentiality.\n(a) Executive shall not, during the term of any employment with the Companies or at any time thereafter, directly or indirectly, divulge,\nuse, furnish, disclose, exploit or make available to any person or entity, whether or not a competitor of the Companies, any Unauthorized disclosure\nof Confidential Information. In the event that Executive is requested or required (by deposition, interrogatories, requests for information or\ndocuments in legal proceedings, subpoenas, civil demand or similar process) to disclose any Confidential Information, Executive will give the\nCompanies prompt written notice of such request or requirement so that the Companies may seek an appropriate protective order or other remedy\nand/or waive compliance with the provisions of this Agreement, and Executive will cooperate with the Companies’ efforts to obtain such protective\norder. In the event that such protective order or other remedy is not obtained or the Companies waive compliance with the relevant provisions of this\nAgreement, Executive is permitted to furnish that Confidential Information which is legally required to be disclosed and will use his reasonable\nefforts to obtain assurances that confidential treatment will be accorded to such information.\nAs used herein, the term:\n“Confidential Information” shall mean trade secrets, confidential or proprietary information, and all other information, documents or\nmaterials, relating to, owned, developed or possessed by any of the Companies, whether in tangible or intangible form. Confidential Information\nincludes, but is not limited to, (i) financial information, (ii) products, (iii) product and service costs, prices, profits and sales, (iv) new business,\ntechnical or other ideas, proposals, plans and designs, (v) business strategies, (vi) product and service plans, (vii) marketing plans and studies,\n(viii) forecasts, (ix) budgets, (x) projections, (xi) computer programs, (xii) data bases and the documentation (and information contained therein),\n(xiii) computer access codes and similar information, (xiv) source codes, (xv) know-how, technologies, concepts and designs, including, without\nlimitation, patent applications, (xvi) research projects and all information connected with research and development efforts, (xvii) records,\n(xviii) business methods and recommendations, (xix) existing or prospective client, customer, vendor and supplier information (including, but not\nlimited to, identities, needs, transaction histories, volumes, characteristics, agreements, prices, identities of individual contacts, and spending,\npreferences or habits), (xx) training manuals and similar materials used by the Companies in conducting its business operations, (xxi) personnel files\nof employees, directors and independent contractors of any of the Companies, (xxii) competitive analyses, (xxiii) contracts with other parties,\n(xxiv) product formulations, and (xxv) other confidential or proprietary information that has not been made available to the trade or general public\nby any of the Companies. Confidential Information shall not include any information that (A) is or becomes generally available to the public or the\ntrade other than as a result of a disclosure by the Executive in violation of this Agreement or (B) becomes available to the Executive on a non-\nconfidential basis from a source other than the Companies which is not prohibited from disclosing such information to the Executive by a legal,\ncontractual or fiduciary obligation to the Employer or any other Person.\n“Unauthorized” shall mean: (i) in contravention of the policies or procedures of any of the Companies; (ii) otherwise inconsistent with\nany measures taken by any of the Companies to protect its interests in the Confidential Information; (iii) in contravention of any lawful instruction or\ndirective, either written or oral, of the board of directors, or an officer or employee of any of the Companies empowered to issue such instruction or\ndirective; (iv) in contravention of any duty existing under law or contract; or (v) to the detriment of any of the Companies; but shall not include any\ndisclosure which is customary in the normal course of business in the trade and consistent with the past practice of the Companies.\n(b) Executive further agrees to take all reasonable measures to prevent unauthorized persons or entities from obtaining or using\nConfidential Information. Promptly upon termination, for any reason, of Executive’s employment with the Companies, Executive agrees to deliver to\nthe Companies all property and materials within Executive’s possession or control which belong to any of the Companies or which contain\nConfidential Information.\n(c) Nothing in this Section 1 is intended to preclude Executive from using his general knowledge and know-how regarding the\nmanagement of a health care service provider in any future employment or business venture; provided, that Executive’s use of such general\nknowledge and know-how does not violate the provisions of Section 2 hereof.\n2. Non-Competition; Non-Solicitation.\n(a) For a period of time equal to the later of the fifth anniversary of the effective date of the Merger or the second anniversary after the\ntermination of the Executive’s employment with the Companies (the “Noncompete Period”), Executive will not, directly or indirectly, engage,\nanywhere in the United States, whether such engagement be as an individual, officer, director, proprietor, consultant, employee, partner, member,\nstockholder, investor (other than solely as a holder of less than three percent (3%) of the outstanding capital stock of a corporation whose shares are\npublicly traded on a national securities exchange or through a national market system or registered pursuant to Section 12(g) of the Securities\nExchange Act of 1934, as amended), creditor, consultant, advisor, sales representative, agent or other participant, in a Restricted Business.\n(b) During the Noncompete Period, Executive shall not directly or indirectly (i) solicit, divert, or entice away any person who is an\nofficer, agent, or employee of, or consultant or advisor to, any of the Companies to accept employment or a consultancy with a third party or (ii) hire\nany current or future employees of the Companies, unless such person has not been employed by any of the Companies for not less than 12 months\n(other than, Lisa Shunnarah).\n(c) During the Noncompete Period, Executive shall not solicit or accept on behalf of yourself or anyone else any of the Companies’\ncustomers and/or clients with a view to sell or provide any product or service competitive with any product or service sold or provided or under\ndevelopment by the Companies. For the purposes of this Agreement, the term “customer” and/or “client” shall include any person or entity to whom\nthe Companies, through its offices in which you had direct or indirect oversight and managerial duties during your employment with the Companies,\nhave sold, provided or been obligated to provide, any service or product, or who has otherwise received any service or benefit from the Companies,\nwithin 24 months prior to the termination of Executive’s employment with the Companies.\n“Restricted Business” shall mean (i) the business operations operated by the Companies; (ii) home health services, including but not\nlimited to the provision of skilled nursing, rehabilitative therapy services (physical, occupational and speech therapy and social work), home health\naid care, and homemaker services to pediatric, adult, and elderly patients in their homes or places of residence; (iii) hospice care; (iv) home/durable\nmedical equipment and/or respiratory services; and (v) infusion therapy.\nNotwithstanding the foregoing, nothing in this Section 2 shall prohibit Executive from (i) owning any amount of stock in Gentiva or\nserving in any capacity as an officer, director or employee of Gentiva or (ii) making passive investments in another entity (e.g. a private equity or\ndebt fund) not controlled by Executive that makes investments, whether debt or equity, in other entities that may be engaged in a Restricted\nBusiness, provided that Executive does not directly or indirectly own or control in excess of 10% of any Restricted Business.\n3. Intellectual Property. Executive agrees that during the term of Executive’s employment with the Companies, any and all inventions,\ndiscoveries, innovations, writings, domain names, improvements, trade secrets, designs, drawings, business processes, secret\nprocesses and know-how, whether or not patentable or a copyright or trademark, which Executive may create, conceive, develop or make, either\nalone or in conjunction with others and related or in any way connected with any of the Companies, its strategic plans, products, processes, apparatus\nor business now or hereafter carried on by any of the Companies (collectively, “Inventions™), shall be fully and promptly disclosed to the Companies\nand shall be the sole and exclusive property of the Companies (as they shall determine) as against Executive or any of Executive’s assignees.\nRegardless of the status of Executive’s employment by the Companies, Executive and Executive’s heirs, assigns and representatives shall promptly\nassign to the Companies any and all right, title and interest in and to such Inventions made during the term of Executive’s employment by any of the\nCompanies. Executive represents that there are no Inventions with respect to any of the Companies conceived of, developed or made by Executive\nbefore the date of this Agreement which have not been disclosed to and assigned to the Companies.\nWhether during or after Executive’s employment with the Companies, Executive further agrees to execute and acknowledge all papers\nand to do, at the Companies’ expense, any and all other things necessary for or incident to the applying for, obtaining and maintaining of such letters\npatent, copyrights, trademarks or other intellectual property rights, as the case may be, and to execute, on request, all papers necessary to assign and\ntransfer such Inventions, copyrights, patents, patent applications and other intellectual property rights to the Companies, their successors and assigns\n(as they shall determine). In the event that the Companies are unable, after reasonable efforts and, in any event, after thirty (30) business days, to\nsecure Executive’s signature on a written assignment to the Companies, of any application for letters patent, trademark registration or to any\ncommon law or statutory copyright or other property right therein to which the Companies are entitled to ownership pursuant to this Section 3,\nwhether because of his physical or mental incapacity, or for any other reason whatsoever, Executive irrevocably designates and appoints the\nSecretary or any Assistant Secretary of the Parent as Executive’s attorney-in-fact to act on Executive’s behalf to execute and file any such\napplications and to do all lawfully permitted acts to further the prosecution or issuance of such assignments, letters patent, copyright or trademark;\nprovided, however, that the provisions of this sentence shall not apply if the Executive disputes in writing the Companies’ ownership of the\nintellectual property rights which are the subject of the proposed assignment.\n4. Non-Disparagement. Executive shall not make any false, defamatory or disparaging statements about any of the Companies or any of its\nofficers, directors and employees. No officer or director of the Parent shall make any false, defamatory or disparaging statements about the\nExecutive.\n5. No Right to Continued Employment. Nothing in this Agreement shall confer upon Executive any right to continue in the employ of the\nCompanies or shall interfere with or restrict in any way the rights of the Companies, which, subject to the terms of the Letter Agreement, are hereby\nreserved, to discharge Executive at any time for any reason whatsoever, with or without cause.\n6. No Conflicting Agreements. Executive warrants that Executive is not bound by the terms of a confidentiality agreement, non-competition or\nother agreement with a third party that would conflict with Executive’s obligations hereunder.\n7. Remedies. The period of time during which the restrictions set forth in Section 2(a) hereof will be in effect will be extended by the length of\ntime during which Executive is in breach of the terms of those provisions as finally determined by any court of competent jurisdiction.\n8. Successors and Assigns. This Agreement shall be binding upon Executive and Executive’s heirs, assigns and representatives and inure to the\nbenefit of the Companies and their successors and assigns, including without limitation any entity to which substantially all of the assets or the\nbusiness of any of the Companies are sold or transferred. The obligations of Executive are personal to Executive and shall not be assigned by\nExecutive. The Companies may assign its rights under this Agreement to any affiliate of the Companies that employs Executive.\n9. Severability. It is expressly agreed that if any restrictions set forth in this Agreement are found by any court having jurisdiction to be\nunreasonable because they are too broad in any respect, then and in each such case, the remaining provisions herein contained shall, nevertheless,\nremain effective, and this Agreement, or any portion hereof, shall be considered to be amended, so as to be considered reasonable and enforceable by\nsuch court, and the court shall specifically have the right to restrict the time period or the business or geographical scope of such restrictions to any\nportion of the time period, business or geographic areas to the extent the court deems such restriction to be necessary to cause the covenants to be\nenforceable and, in such event, the covenants shall be enforced to the extent so permitted and the remaining provisions shall be unaffected thereby.\nIn such event, the parties hereto agree to execute all documents necessary to evidence such amendment so as to eliminate or modify any such\nunreasonable provision in order to carry out the intent of this Agreement insofar as possible and to render this Agreement enforceable in all respects\nas so modified. The covenants contained in this Section 9 shall be construed to extend to separate jurisdictions or subjurisdictions of the United\nStates in which the Companies, during the term of Executive’s employment, have been or are engaged in business, and to the extent that any such\ncovenant shall be illegal and/or unenforceable with respect to any jurisdiction, said covenant shall not be affected thereby with respect to each other\njurisdiction, such covenants with respect to each jurisdiction being construed as severable and independent. Any covenant on Executive’s part\ncontained hereinabove, which may not be specifically enforceable, shall nevertheless, if breached, give rise to a cause of action for monetary\ndamages. The restrictive covenant provisions of this Agreement shall govern to the extent there is any conflict between their terms and the terms of\nany other agreement or understanding with the Companies.\n10. Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed given (i) when delivered\npersonally by hand (with written confirmation of receipt), (ii) when sent by facsimile (with written confirmation of transmission) or (iii) one\nBusiness Day following the day sent by overnight courier (with written confirmation of receipt), in each case at the following addresses and\nfacsimile numbers (or to such other address or facsimile number as a party may have specified by notice given to the other party pursuant to this\nprovision):\nIf to the Companies, to:\nGentiva Health Services, Inc.\n3 Huntington Quadrangle, Suite 200S\nMelville, NY 11747-4627\nAttention: Stephen B. Paige, General Counsel\nFacsimile: (913) 814-5920\nIf to the Executive, to:\nExecutive’s address set forth\nbeneath Executive’s\nsignature on this Agreement.\nwith a copy to:\nWeil, Gotshal & Manges LLP\n767 Fifth Avenue\nNew York, NY 10153\nAttention: Jeffrey J. Weinberg, Esq.\nFacsimile: (212) 310-8007\nGreenberg Traurig\nThe Forum\n3290 Northside Parkway, NW\nSuite 1400\nAtlanta, GA 30327\nAttention: Gary Snyder, Esq.\nFacsimile: (678) 553-2212\n11. Amendment. No provision of this Agreement may be modified, amended, waived or discharged in any manner except by a written instrument executed by the Companies and Executive. 12. Entire Agreement. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, and supersedes all prior agreements and understandings of the parties hereto, oral or written, with respect to the subject matter hereof. 13. Waiver, etc. The failure of the Companies to enforce at any time any of the provisions of this Agreement shall not be deemed or construed to be a waiver of any such provision, nor in any way affect the validity of this Agreement or any provision hereof or the right of the Companies to enforce thereafter each and every provision of this Agreement. No waiver of any breach of any of the provisions of this Agreement by the Companies shall be effective unless set forth in a written instrument executed by the Companies, and no waiver of any such breach shall be  \nconstrued or deemed to be a waiver of any other or subsequent breach. 14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be wholly performed therein without reference to conflicts of law principles, except as otherwise provided. 15. Enforcement. If any party shall institute legal action to enforce or interpret the terms and conditions of this Agreement or to collect any monies under it, venue for any such action shall be the State of New York. Each party irrevocably consents to the jurisdiction of the courts located in the State of New York for all suits or actions arising out of this Agreement. Each party hereto waives to the fullest extent possible, the defense of an\f \ninconvenient forum, and each agrees that a final judgment in any action shall be conclusive and may be enforced in other jurisdictions by suit on the\njudgment or in any other manner provided by law.\n[Next Page is Signature Page]\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day written above.\nGENTIVA HEALTH SERVICES, INC.\nBy:  /s/John R. Potapchuk\nName: John R. Potapchuk\nTitle: Senior Vice President, Chief Financial Officer and Treasurer\nTHE HEALTHFIELD GROUP, INC.\nBy:  /s/John R. Potapchuk\nName: John R. Potapchuk\nTitle: Senior Vice President, Chief Financial Officer and Treasurer\nTONY STRANGE\n/s/ Tony Strange\nTony Strange\n3350 Riverwood Parkway\nSuite 1400\nAtlanta, GA 30339	EX-10.5 4 dex105.htm CONFIDENTIALITY NON-COMPETITION AND INTELLECTUAL PROPERTY\nAGREEMENT\nEXHIBIT 10.5\nCONFIDENTIALITY, NON-COMPETITION AND INTELLECTUAL PROPERTY AGREEMENT (this "Agreement"), dated as\nof February 28, 2006 (the "Effective Date"), among Gentiva Health Services, Inc., a Delaware corporation ("Gentiva"; together with all subsidiaries\nof Gentiva, "Parent"), The Healthfield Group, Inc., a Delaware corporation ("Healthfield"; together with all subsidiaries of Healthfield, the\n"Healthfield Group"), (together with the Parent and the Healthfield Group, the "Companies") and Tony Strange ("Executive").\nWHEREAS, the Companies are currently engaged in the business of, among other things, providing comprehensive home health care\nservices.\nWHEREAS, Tara Acquisition Sub Corp., a wholly owned subsidiary of Gentiva, has merged with and into Healthfield (the "Merger").\nWHEREAS, Executive had an employment agreement with the Healthfield Group (the "Old Employment Agreement"), which\nExecutive acknowledges has been terminated as of the date hereof, and Executive has a letter severance agreement with the Companies dated the\ndate hereof (the "Letter Agreement"). In such role, Executive will receive or has received specific confidential information relating to the businesses\nof\nthe Companies, which confidential information is or was necessary to enable Executive to perform Executive's duties. Executive will play or has\nplayed a significant role in the development and management of the businesses of the Companies and has been or will be entrusted with the\nCompanies' confidential information relating to the Companies' customers, manufacturers, distributors and others.\nWHEREAS, Executive is a holder of Healthfield preferred stock and Healthfield common stock and is receiving significant\nconsideration as a result of the Merger.\nWHEREAS, it is a condition to the closing of the Merger that Executive enter into this Agreement.\nNOW, THEREFORE, it is mutually agreed as follows:\n1. Confidentiality.\n(a) Executive shall not, during the term of any employment with the Companies or at any time thereafter, directly or indirectly, divulge,\nuse, furnish, disclose, exploit or make available to any person or entity, whether or not a competitor of the Companies, any Unauthorized disclosure\nof Confidential Information. In the event that Executive is requested or required (by deposition, interrogatories, requests for information or\ndocuments in legal proceedings, subpoenas, civil demand or similar process) to disclose any Confidential Information, Executive will give the\nCompanies prompt written notice of such request or requirement so that the Companies may seek an appropriate protective order or other remedy\nand/or waive compliance with the provisions of this Agreement, and Executive will cooperate with the Companies' efforts to obtain such protective\norder. In the event that such protective order or other remedy is not obtained or the Companies waive compliance with the relevant provisions of this\nAgreement, Executive is permitted to furnish that Confidential Information which is legally required to be disclosed and will use his reasonable\nefforts to obtain assurances that confidential treatment will be accorded to such information.\nAs used herein, the term:\n"Confidential Information' shall mean trade secrets, confidential or proprietary information, and all other information, documents or\nmaterials, relating to, owned, developed or possessed by any of the Companies, whether in tangible or intangible form. Confidential Information\nincludes, but is not limited to, (i) financial information, (ii) products, (iii) product and service costs, prices, profits and sales, (iv) new business,\ntechnical or other ideas, proposals, plans and designs, (v) business strategies, (vi) product and service plans, (vii) marketing plans and studies,\n(viii) forecasts, (ix) budgets, (x) projections, (xi) computer programs, (xii) data bases and the documentation (and information contained therein),\n(xiii) computer access codes and similar information, (xiv) source codes, (xv) know-how, technologies, concepts and designs, including, without\nlimitation, patent applications, (xvi) research projects and all information connected with research and development efforts, (xvii) records,\n(xviii) business methods and recommendations, (xix) existing or prospective client, customer, vendor and supplier information (including, but not\nlimited to, identities, needs, transaction histories, volumes, characteristics, agreements, prices, identities of individual contacts, and spending,\npreferences or habits), (xx) training manuals and similar materials used by the Companies in conducting its business operations, (xxi) personnel files\nof employees, directors and independent contractors of any of the Companies, (xxii) competitive analyses, (xxiii) contracts with other parties,\n(xxiv) product formulations, and (xxv) other confidential or proprietary information that has not been made available to the trade or general public\nby any of the Companies. Confidential Information shall not include any information that (A) is or becomes generally available to the public or the\ntrade other than as a result of a disclosure by the Executive in violation of this Agreement or (B) becomes available to the Executive on a non-\nconfidential basis from a source other than the Companies which is not prohibited from disclosing such information to the Executive by a legal,\ncontractual or fiduciary obligation to the Employer or any other Person.\n"Unauthorized" shall mean: (i) in contravention of the policies or procedures of any of the Companies; (ii) otherwise inconsistent with\nany measures taken by any of the Companies to protect its interests in the Confidential Information; (iii) in contravention of any lawful instruction or\ndirective, either written or oral, of the board of directors, or an officer or employee of any of the Companies empowered to issue such instruction or\ndirective; (iv) in contravention of any duty existing under law or contract; or (v) to the detriment of any of the Companies; but shall not include any\ndisclosure which is customary in the normal course of business in the trade and consistent with the past practice of the Companies.\n(b) Executive further agrees to take all reasonable measures to prevent unauthorized persons or entities from obtaining or using\nConfidential Information. Promptly upon termination, for any reason, of Executive's employment with the Companies, Executive agrees to deliver to\nthe Companies all property and materials within Executive's possession or control which belong to any of the Companies or which contain\nConfidential Information.\n(c)\nNothing in this Section 1 is intended to preclude Executive from using his general knowledge and know-how regarding the\nmanagement of a health care service provider in any future employment or business venture; provided, that Executive's use of such general\nknowledge and know-how does not violate the provisions of Section 2 hereof.\n2. Non-Competition; Non-Solicitation.\n(a) For a period of time equal to the later of the fifth anniversary of the effective date of the Merger or the second anniversary after the\ntermination of the Executive's employment with the Companies (the "Noncompete Period"), Executive will not, directly or indirectly, engage,\nanywhere in the United States, whether such engagement be as an individual, officer, director, proprietor, consultant, employee, partner, member,\nstockholder, investor (other than solely as a holder of less than three percent (3%) of the outstanding capital stock of a corporation whose shares\nare\npublicly traded on a national securities exchange or through a national market system or registered pursuant to Section 12(g) of the Securities\nExchange Act of 1934, as amended), creditor, consultant, advisor, sales representative, agent or other participant, in a Restricted Business.\n(b) During the Noncompete Period, Executive shall not directly or indirectly (i) solicit, divert, or entice away any person who is an\nofficer, agent, or employee of, or consultant or advisor to, any of the Companies to accept employment or a consultancy with a third party or (ii) hire\nany current or future employees of the Companies, unless such person has not been employed by any of the Companies for not less than 12 months\n(other than, Lisa Shunnarah).\n(c) During the Noncompete Period, Executive shall not solicit or accept on behalf of yourself or anyone else any of the Companies'\ncustomers and/or clients with a view to sell or provide any product or service competitive with any product or service sold or provided or under\ndevelopment by the Companies. For the purposes of this Agreement, the term "customer" and/or "client" shall include any person or entity to whom\nthe Companies, through its offices in which you had direct or indirect oversight and managerial duties during your employment with the Companies,\nhave sold, provided or been obligated to provide, any service or product, or who has otherwise received any service or benefit from the Companies,\nwithin 24 months prior to the termination of Executive's employment with the Companies.\n"Restricted Business" shall mean (i) the business operations operated by the Companies; (ii) home health services, including but not\nlimited to the provision of skilled nursing, rehabilitative therapy services (physical, occupational and speech therapy and social work), home health\naid care, and homemaker services to pediatric, adult, and elderly patients in their homes or places of residence; (iii) hospice care; (iv) home/durable\nmedical equipment and/or respiratory services; and (v) infusion therapy.\nNotwithstanding the foregoing, nothing in this Section 2 shall prohibit Executive from (i) owning any amount of stock in Gentiva\nor\nserving in any capacity as an officer, director or employee of Gentiva or (ii) making passive investments in another entity (e.g. a private equity or\ndebt fund) not controlled by Executive that makes investments, whether debt or equity, in other entities that may be engaged in a Restricted\nBusiness, provided that Executive does not directly or indirectly own or control in excess of 10% of any Restricted Business.\n3. Intellectual Property.. Executive agrees that during the term of Executive's employment with the Companies, any and all inventions,\ndiscoveries, innovations, writings, domain names, improvements, trade secrets, designs, drawings, business processes, secret\nprocesses and know-how, whether or not patentable or a copyright or trademark, which Executive may create, conceive, develop or make, either\nalone or in conjunction with others and related or in any way connected with any of the Companies, its strategic plans, products, processes, apparatus\nor business now or hereafter carried on by any of the Companies (collectively, "Inventions"), shall be fully and promptly disclosed to the Companies\nand shall be the sole and exclusive property of the Companies (as they shall determine) as against Executive or any of Executive's assignees.\nRegardless of the status of Executive's employment by the Companies, Executive and Executive's heirs, assigns and representatives shall promptly\nassign to the Companies any and all right, title and interest in and to such Inventions made during the term of Executive's employment by any of the\nCompanies. Executive represents that there are no Inventions with respect to any of the Companies conceived of, developed or made by Executive\nbefore the date of this Agreement which have not been disclosed to and assigned to the Companies.\nWhether during or after Executive's employment with the Companies, Executive further agrees to execute and acknowledge all papers\nand to do, at the Companies' expense, any and all other things necessary for or incident to the applying for, obtaining and maintaining of such letters\npatent, copyrights, trademarks or other intellectual property rights, as the case may be, and to execute, on request, all papers necessary to assign and\ntransfer such Inventions, copyrights, patents, patent applications and other intellectual property rights to the Companies, their successors and assigns\n(as they shall determine). In the event that the Companies are unable, after reasonable efforts and, in any event, after thirty (30) business days, to\nsecure Executive's signature on a written assignment to the Companies, of any application for letters patent, trademark registration or to any\ncommon law or statutory copyright or other property right therein to which the Companies are entitled to ownership pursuant to this Section 3,\nwhether because of his physical or mental incapacity, or for any other reason whatsoever, Executive irrevocably designates and appoints the\nSecretary or any Assistant Secretary of the Parent as Executive's attorney-in-fact to act on Executive's behalf to execute and file any such\napplications and to do all lawfully permitted acts to further the prosecution or issuance of such assignments, letters patent, copyright or trademark;\nprovided, however, that the provisions of this sentence shall not apply if the Executive disputes in writing the Companies' ownership of the\nintellectual property rights which are the subject of the proposed assignment.\n4.\nNon-Disparagement. Executive shall not make any false, defamatory or disparaging statements about any of the Companies or any of its\nofficers, directors and employees. No officer or director of the Parent shall make any false, defamatory or disparaging statements about the\nExecutive.\n5. No Right to Continued Employment. Nothing in this Agreement shall confer upon Executive any right to continue in the employ of the\nCompanies or shall interfere with or restrict in any way the rights of the Companies, which, subject to the terms of the Letter Agreement, are hereby\nreserved, to discharge Executive at any time for any reason whatsoever, with or without cause.\n6. No Conflicting Agreements. Executive warrants that Executive is not bound by the terms of a confidentiality agreement, non-competition or\nother agreement with a third party that would conflict with Executive's obligations hereunder.\n7. Remedies. The period of time during which the restrictions set forth in Section 2(a) hereof will be in effect will be extended by the length of\ntime during which Executive is in breach of the terms of those provisions as finally determined by any court of competent jurisdiction.\n8. Successors and Assigns. This Agreement shall be binding upon Executive and Executive's heirs, assigns and representatives and inure to the\nbenefit of the Companies and their successors and assigns, including without limitation any entity to which substantially all of the assets or the\nbusiness of any of the Companies are sold or transferred. The obligations of Executive are personal to Executive and shall not be assigned by\nExecutive. The Companies may assign its rights under this Agreement to any affiliate of the Companies that employs Executive.\n9. Severability.. It is expressly agreed that if any restrictions set forth in this Agreement are found by any court having jurisdiction to be\nunreasonable because they are too broad in any respect, then and in each such case, the remaining provisions herein contained shall, nevertheless,\nremain effective, and this Agreement, or any portion hereof, shall be considered to be amended, so as to be considered reasonable and enforceable by\nsuch\ncourt, and the court shall specifically have the right to restrict the time period or the business or geographical scope of such restrictions to any\nportion of the time period, business or geographic areas to the extent the court deems such restriction to be necessary to cause the covenants to\nbe\nenforceable and, in such event, the covenants shall be enforced to the extent so permitted and the remaining provisions shall be unaffected thereby.\nIn such event, the parties hereto agree to execute all documents necessary to evidence such amendment so as to eliminate or modify any such\nunreasonable provision in order to carry out the intent of this Agreement insofar as possible and to render this Agreement enforceable in all respects\nas so modified. The covenants contained in this Section 9 shall be construed to extend to separate jurisdictions or subjurisdictions of the United\nStates in which the Companies, during the term of Executive's employment, have been or are engaged in business, and to the extent that any such\ncovenant shall be illegal and/or unenforceable with respect to any jurisdiction, said covenant shall not be affected thereby with respect to each other\njurisdiction, such covenants with respect to each jurisdiction being construed as severable and independent. Any covenant on Executive's part\ncontained hereinabove, which may not be specifically enforceable, shall nevertheless, if breached, give rise to a cause of action for monetary\ndamages. The restrictive covenant provisions of this Agreement shall govern to the extent there is any conflict between their terms and the terms of\nany other agreement or understanding with the Companies.\n10. Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed given (i) when delivered\npersonally by hand (with written confirmation of receipt), (ii) when sent by facsimile (with written confirmation of transmission) or (iii) one\nBusiness Day following the day sent by overnight courier (with written confirmation of receipt), in each case at the following addresses and\nfacsimile numbers (or to such other address or facsimile number as a party may have specified by notice given to the other party pursuant to this\nprovision):\nIf to the Companies, to:\nwith a copy to:\nGentiva Health Services, Inc.\nWeil, Gotshal & Manges LLP\n3 Huntington Quadrangle, Suite 200S\n767 Fifth Avenue\nMelville, NY 11747-4627\nNew York, NY 10153\nAttention: Stephen B. Paige, General Counsel\nAttention: Jeffrey J. Weinberg, Esq.\nFacsimile: (913) 814-5920\nFacsimile: (212) 310-8007\nIf to the Executive, to:\nExecutive's address set forth\nGreenberg Traurig\nbeneath Executive's\nThe Forum\nsignature on this Agreement.\n3290 Northside Parkway, NW\nSuite 1400\nAtlanta, GA 30327\nAttention: Gary Snyder, Esq.\nFacsimile: (678) 553-2212\n11. Amendment. No provision of this Agreement may be modified, amended, waived or discharged in any manner except by a written\ninstrument executed by the Companies and Executive.\n12. Entire Agreement. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, and\nsupersedes all prior agreements and understandings of the parties hereto, oral or written, with respect to the subject matter hereof.\n13. Waiver,et The failure of the Companies to enforce at any time any of the provisions of this Agreement shall not be deemed or construed\nto be a waiver of any such provision, nor in any way affect the validity of this Agreement or any provision hereof or the right of the Companies to\nenforce thereafter each and every provision of this Agreement. No waiver of any breach of any of the provisions of this Agreement by the\nCompanies shall be effective unless set forth in a written instrument executed by the Companies, and no waiver of any such breach shall be\nconstrued or deemed to be a waiver of any other or subsequent breach.\n14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to\ncontracts made and to be wholly performed therein without reference to conflicts of law principles, except as otherwise provided.\n15. Enforcement. If any party shall institute legal action to enforce or interpret the terms and conditions of this Agreement or to collect any\nmonies under it, venue for any such action shall be the State of New York. Each party irrevocably consents to the jurisdiction of the courts located in\nthe State of New York for all suits or actions arising out of this Agreement. Each party hereto waives to the fullest extent possible, the defense of an\ninconvenient forum, and each agrees that a final judgment in any action shall be conclusive and may be enforced in other jurisdictions by suit on the\njudgment or in any other manner provided by law.\n[Next Page is Signature Page]\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day written above.\nGENTIVA HEALTH SERVICES, INC.\nBy:\n/s/ John R. Potapchuk\nName: John R. Potapchuk\nTitle: Senior Vice President, Chief Financial Officer and Treasurer\nTHE HEALTHFIELD GROUP, INC.\nBy:\n/s/ John R. Potapchuk\nName: John R. Potapchuk\nTitle: Senior Vice President, Chief Financial Officer and Treasurer\nTONY STRANGE\n/s/ Tony Strange\nTony Strange\n3350 Riverwood Parkway\nSuite 1400\nAtlanta, GA 30339	EX-10.5 4 dex105.htm CONFIDENTIALITY, NON-COMPETITION AND INTELLECTUAL PROPERTY\nAGREEMENT\nEXHIBIT 10.5\nCONFIDENTIALITY, NON-COMPETITION AND INTELLECTUAL PROPERTY AGREEMENT (this “Agreement”), dated as\nof February 28, 2006 (the “Effective Date”), among Gentiva Health Services, Inc., a Delaware corporation (“Gentiva”; together with all subsidiaries\nof Gentiva, “Parent”), The Healthfield Group, Inc., a Delaware corporation (“Healthfield”; together with all subsidiaries of Healthfield, the\n“Healthfield Group”), (together with the Parent and the Healthfield Group, the “Companies”) and Tony Strange (“Executive”).\nWHEREAS, the Companies are currently engaged in the business of, among other things, providing comprehensive home health care\nservices.\nWHEREAS, Tara Acquisition Sub Corp., a wholly owned subsidiary of Gentiva, has merged with and into Healthfield (the “Merger”).\nWHEREAS, Executive had an employment agreement with the Healthfield Group (the “Old Employment Agreement”), which\nExecutive acknowledges has been terminated as of the date hereof, and Executive has a letter severance agreement with the Companies dated the\ndate hereof (the “Letter Agreement”). In such role, Executive will receive or has received specific confidential information relating to the businesses\nof the Companies, which confidential information is or was necessary to enable Executive to perform Executive’s duties. Executive will play or has\nplayed a significant role in the development and management of the businesses of the Companies and has been or will be entrusted with the\nCompanies’ confidential information relating to the Companies’ customers, manufacturers, distributors and others.\nWHEREAS, Executive is a holder of Healthfield preferred stock and Healthfield common stock and is receiving significant\nconsideration as a result of the Merger.\nWHEREAS, it is a condition to the closing of the Merger that Executive enter into this Agreement.\nNOW, THEREFORE, it is mutually agreed as follows:\n1. Confidentiality.\n(a) Executive shall not, during the term of any employment with the Companies or at any time thereafter, directly or indirectly, divulge,\nuse, furnish, disclose, exploit or make available to any person or entity, whether or not a competitor of the Companies, any Unauthorized disclosure\nof Confidential Information. In the event that Executive is requested or required (by deposition, interrogatories, requests for information or\ndocuments in legal proceedings, subpoenas, civil demand or similar process) to disclose any Confidential Information, Executive will give the\nCompanies prompt written notice of such request or requirement so that the Companies may seek an appropriate protective order or other remedy\nand/or waive compliance with the provisions of this Agreement, and Executive will cooperate with the Companies’ efforts to obtain such protective\norder. In the event that such protective order or other remedy is not obtained or the Companies waive compliance with the relevant provisions of this\nAgreement, Executive is permitted to furnish that Confidential Information which is legally required to be disclosed and will use his reasonable\nefforts to obtain assurances that confidential treatment will be accorded to such information.\nAs used herein, the term:\n“Confidential Information” shall mean trade secrets, confidential or proprietary information, and all other information, documents or\nmaterials, relating to, owned, developed or possessed by any of the Companies, whether in tangible or intangible form. Confidential Information\nincludes, but is not limited to, (i) financial information, (ii) products, (iii) product and service costs, prices, profits and sales, (iv) new business,\ntechnical or other ideas, proposals, plans and designs, (v) business strategies, (vi) product and service plans, (vii) marketing plans and studies,\n(viii) forecasts, (ix) budgets, (x) projections, (xi) computer programs, (xii) data bases and the documentation (and information contained therein),\n(xiii) computer access codes and similar information, (xiv) source codes, (xv) know-how, technologies, concepts and designs, including, without\nlimitation, patent applications, (xvi) research projects and all information connected with research and development efforts, (xvii) records,\n(xviii) business methods and recommendations, (xix) existing or prospective client, customer, vendor and supplier information (including, but not\nlimited to, identities, needs, transaction histories, volumes, characteristics, agreements, prices, identities of individual contacts, and spending,\npreferences or habits), (xx) training manuals and similar materials used by the Companies in conducting its business operations, (xxi) personnel files\nof employees, directors and independent contractors of any of the Companies, (xxii) competitive analyses, (xxiii) contracts with other parties,\n(xxiv) product formulations, and (xxv) other confidential or proprietary information that has not been made available to the trade or general public\nby any of the Companies. Confidential Information shall not include any information that (A) is or becomes generally available to the public or the\ntrade other than as a result of a disclosure by the Executive in violation of this Agreement or (B) becomes available to the Executive on a non-\nconfidential basis from a source other than the Companies which is not prohibited from disclosing such information to the Executive by a legal,\ncontractual or fiduciary obligation to the Employer or any other Person.\n“Unauthorized” shall mean: (i) in contravention of the policies or procedures of any of the Companies; (ii) otherwise inconsistent with\nany measures taken by any of the Companies to protect its interests in the Confidential Information; (iii) in contravention of any lawful instruction or\ndirective, either written or oral, of the board of directors, or an officer or employee of any of the Companies empowered to issue such instruction or\ndirective; (iv) in contravention of any duty existing under law or contract; or (v) to the detriment of any of the Companies; but shall not include any\ndisclosure which is customary in the normal course of business in the trade and consistent with the past practice of the Companies.\n(b) Executive further agrees to take all reasonable measures to prevent unauthorized persons or entities from obtaining or using\nConfidential Information. Promptly upon termination, for any reason, of Executive’s employment with the Companies, Executive agrees to deliver to\nthe Companies all property and materials within Executive’s possession or control which belong to any of the Companies or which contain\nConfidential Information.\n(c) Nothing in this Section 1 is intended to preclude Executive from using his general knowledge and know-how regarding the\nmanagement of a health care service provider in any future employment or business venture; provided, that Executive’s use of such general\nknowledge and know-how does not violate the provisions of Section 2 hereof.\n2. Non-Competition; Non-Solicitation.\n(a) For a period of time equal to the later of the fifth anniversary of the effective date of the Merger or the second anniversary after the\ntermination of the Executive’s employment with the Companies (the “Noncompete Period”), Executive will not, directly or indirectly, engage,\nanywhere in the United States, whether such engagement be as an individual, officer, director, proprietor, consultant, employee, partner, member,\nstockholder, investor (other than solely as a holder of less than three percent (3%) of the outstanding capital stock of a corporation whose shares are\npublicly traded on a national securities exchange or through a national market system or registered pursuant to Section 12(g) of the Securities\nExchange Act of 1934, as amended), creditor, consultant, advisor, sales representative, agent or other participant, in a Restricted Business.\n(b) During the Noncompete Period, Executive shall not directly or indirectly (i) solicit, divert, or entice away any person who is an\nofficer, agent, or employee of, or consultant or advisor to, any of the Companies to accept employment or a consultancy with a third party or (ii) hire\nany current or future employees of the Companies, unless such person has not been employed by any of the Companies for not less than 12 months\n(other than, Lisa Shunnarah).\n(c) During the Noncompete Period, Executive shall not solicit or accept on behalf of yourself or anyone else any of the Companies’\ncustomers and/or clients with a view to sell or provide any product or service competitive with any product or service sold or provided or under\ndevelopment by the Companies. For the purposes of this Agreement, the term “customer” and/or “client” shall include any person or entity to whom\nthe Companies, through its offices in which you had direct or indirect oversight and managerial duties during your employment with the Companies,\nhave sold, provided or been obligated to provide, any service or product, or who has otherwise received any service or benefit from the Companies,\nwithin 24 months prior to the termination of Executive’s employment with the Companies.\n“Restricted Business” shall mean (i) the business operations operated by the Companies; (ii) home health services, including but not\nlimited to the provision of skilled nursing, rehabilitative therapy services (physical, occupational and speech therapy and social work), home health\naid care, and homemaker services to pediatric, adult, and elderly patients in their homes or places of residence; (iii) hospice care; (iv) home/durable\nmedical equipment and/or respiratory services; and (v) infusion therapy.\nNotwithstanding the foregoing, nothing in this Section 2 shall prohibit Executive from (i) owning any amount of stock in Gentiva or\nserving in any capacity as an officer, director or employee of Gentiva or (ii) making passive investments in another entity (e.g. a private equity or\ndebt fund) not controlled by Executive that makes investments, whether debt or equity, in other entities that may be engaged in a Restricted\nBusiness, provided that Executive does not directly or indirectly own or control in excess of 10% of any Restricted Business.\n3. Intellectual Property. Executive agrees that during the term of Executive’s employment with the Companies, any and all inventions,\ndiscoveries, innovations, writings, domain names, improvements, trade secrets, designs, drawings, business processes, secret\nprocesses and know-how, whether or not patentable or a copyright or trademark, which Executive may create, conceive, develop or make, either\nalone or in conjunction with others and related or in any way connected with any of the Companies, its strategic plans, products, processes, apparatus\nor business now or hereafter carried on by any of the Companies (collectively, “Inventions”), shall be fully and promptly disclosed to the Companies\nand shall be the sole and exclusive property of the Companies (as they shall determine) as against Executive or any of Executive’s assignees.\nRegardless of the status of Executive’s employment by the Companies, Executive and Executive’s heirs, assigns and representatives shall promptly\nassign to the Companies any and all right, title and interest in and to such Inventions made during the term of Executive’s employment by any of the\nCompanies. Executive represents that there are no Inventions with respect to any of the Companies conceived of, developed or made by Executive\nbefore the date of this Agreement which have not been disclosed to and assigned to the Companies.\nWhether during or after Executive’s employment with the Companies, Executive further agrees to execute and acknowledge all papers\nand to do, at the Companies’ expense, any and all other things necessary for or incident to the applying for, obtaining and maintaining of such letters\npatent, copyrights, trademarks or other intellectual property rights, as the case may be, and to execute, on request, all papers necessary to assign and\ntransfer such Inventions, copyrights, patents, patent applications and other intellectual property rights to the Companies, their successors and assigns\n(as they shall determine). In the event that the Companies are unable, after reasonable efforts and, in any event, after thirty (30) business days, to\nsecure Executive’s signature on a written assignment to the Companies, of any application for letters patent, trademark registration or to any\ncommon law or statutory copyright or other property right therein to which the Companies are entitled to ownership pursuant to this Section 3,\nwhether because of his physical or mental incapacity, or for any other reason whatsoever, Executive irrevocably designates and appoints the\nSecretary or any Assistant Secretary of the Parent as Executive’s attorney-in-fact to act on Executive’s behalf to execute and file any such\napplications and to do all lawfully permitted acts to further the prosecution or issuance of such assignments, letters patent, copyright or trademark;\nprovided, however, that the provisions of this sentence shall not apply if the Executive disputes in writing the Companies’ ownership of the\nintellectual property rights which are the subject of the proposed assignment.\n4. Non-Disparagement. Executive shall not make any false, defamatory or disparaging statements about any of the Companies or any of its\nofficers, directors and employees. No officer or director of the Parent shall make any false, defamatory or disparaging statements about the\nExecutive.\n5. No Right to Continued Employment. Nothing in this Agreement shall confer upon Executive any right to continue in the employ of the\nCompanies or shall interfere with or restrict in any way the rights of the Companies, which, subject to the terms of the Letter Agreement, are hereby\nreserved, to discharge Executive at any time for any reason whatsoever, with or without cause.\n6. No Conflicting Agreements. Executive warrants that Executive is not bound by the terms of a confidentiality agreement, non-competition or\nother agreement with a third party that would conflict with Executive’s obligations hereunder.\n7. Remedies. The period of time during which the restrictions set forth in Section 2(a) hereof will be in effect will be extended by the length of\ntime during which Executive is in breach of the terms of those provisions as finally determined by any court of competent jurisdiction.\n8. Successors and Assigns. This Agreement shall be binding upon Executive and Executive’s heirs, assigns and representatives and inure to the\nbenefit of the Companies and their successors and assigns, including without limitation any entity to which substantially all of the assets or the\nbusiness of any of the Companies are sold or transferred. The obligations of Executive are personal to Executive and shall not be assigned by\nExecutive. The Companies may assign its rights under this Agreement to any affiliate of the Companies that employs Executive.\n9. Severability. It is expressly agreed that if any restrictions set forth in this Agreement are found by any court having jurisdiction to be\nunreasonable because they are too broad in any respect, then and in each such case, the remaining provisions herein contained shall, nevertheless,\nremain effective, and this Agreement, or any portion hereof, shall be considered to be amended, so as to be considered reasonable and enforceable by\nsuch court, and the court shall specifically have the right to restrict the time period or the business or geographical scope of such restrictions to any\nportion of the time period, business or geographic areas to the extent the court deems such restriction to be necessary to cause the covenants to be\nenforceable and, in such event, the covenants shall be enforced to the extent so permitted and the remaining provisions shall be unaffected thereby.\nIn such event, the parties hereto agree to execute all documents necessary to evidence such amendment so as to eliminate or modify any such\nunreasonable provision in order to carry out the intent of this Agreement insofar as possible and to render this Agreement enforceable in all respects\nas so modified. The covenants contained in this Section 9 shall be construed to extend to separate jurisdictions or subjurisdictions of the United\nStates in which the Companies, during the term of Executive’s employment, have been or are engaged in business, and to the extent that any such\ncovenant shall be illegal and/or unenforceable with respect to any jurisdiction, said covenant shall not be affected thereby with respect to each other\njurisdiction, such covenants with respect to each jurisdiction being construed as severable and independent. Any covenant on Executive’s part\ncontained hereinabove, which may not be specifically enforceable, shall nevertheless, if breached, give rise to a cause of action for monetary\ndamages. The restrictive covenant provisions of this Agreement shall govern to the extent there is any conflict between their terms and the terms of\nany other agreement or understanding with the Companies.\n10. Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed given (i) when delivered\npersonally by hand (with written confirmation of receipt), (ii) when sent by facsimile (with written confirmation of transmission) or (iii) one\nBusiness Day following the day sent by overnight courier (with written confirmation of receipt), in each case at the following addresses and\nfacsimile numbers (or to such other address or facsimile number as a party may have specified by notice given to the other party pursuant to this\nprovision):\nIf to the Companies, to:\nwith a copy to:\nGentiva Health Services, Inc.\n3 Huntington Quadrangle, Suite 200S\nMelville, NY 11747-4627\nAttention: Stephen B. Paige, General Counsel\nFacsimile: (913) 814-5920\nWeil, Gotshal & Manges LLP\n767 Fifth Avenue\nNew York, NY 10153\nAttention: Jeffrey J. Weinberg, Esq.\nFacsimile: (212) 310-8007\nIf to the Executive, to:\nExecutive’s address set forth\nbeneath Executive’s\nsignature on this Agreement.\nGreenberg Traurig\nThe Forum\n3290 Northside Parkway, NW\nSuite 1400\nAtlanta, GA 30327\nAttention: Gary Snyder, Esq.\nFacsimile: (678) 553-2212\n11. Amendment. No provision of this Agreement may be modified, amended, waived or discharged in any manner except by a written\ninstrument executed by the Companies and Executive.\n12. Entire Agreement. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, and\nsupersedes all prior agreements and understandings of the parties hereto, oral or written, with respect to the subject matter hereof.\n13. Waiver, etc. The failure of the Companies to enforce at any time any of the provisions of this Agreement shall not be deemed or construed\nto be a waiver of any such provision, nor in any way affect the validity of this Agreement or any provision hereof or the right of the Companies to\nenforce thereafter each and every provision of this Agreement. No waiver of any breach of any of the provisions of this Agreement by the\nCompanies shall be effective unless set forth in a written instrument executed by the Companies, and no waiver of any such breach shall be\nconstrued or deemed to be a waiver of any other or subsequent breach.\n14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to\ncontracts made and to be wholly performed therein without reference to conflicts of law principles, except as otherwise provided.\n15. Enforcement. If any party shall institute legal action to enforce or interpret the terms and conditions of this Agreement or to collect any\nmonies under it, venue for any such action shall be the State of New York. Each party irrevocably consents to the jurisdiction of the courts located in\nthe State of New York for all suits or actions arising out of this Agreement. Each party hereto waives to the fullest extent possible, the defense of an\ninconvenient forum, and each agrees that a final judgment in any action shall be conclusive and may be enforced in other jurisdictions by suit on the\njudgment or in any other manner provided by law.\n[Next Page is Signature Page]\nIN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day written above.\nGENTIVA HEALTH SERVICES, INC.\nBy: /s/ John R. Potapchuk\nName: John R. Potapchuk\nTitle: Senior Vice President, Chief Financial Officer and Treasurer\nTHE HEALTHFIELD GROUP, INC.\nBy: /s/ John R. Potapchuk\nName: John R. Potapchuk\nTitle: Senior Vice President, Chief Financial Officer and Treasurer\nTONY STRANGE\n/s/ Tony Strange\nTony Strange\n3350 Riverwood Parkway\nSuite 1400\nAtlanta, GA 30339
+988f7c53c00bb333a4b7188738a25378.pdf	effective_date jurisdiction party term	EX-10.1 2 dex101.htm AGREEMENT, GENERAL RELEASE AND CONFIDENTIALITY STATEMENT\nExhibit 10.1\nAGREEMENT, GENERAL RELEASE AND CONFIDENTIALITY STATEMENT\nThis AGREEMENT, GENERAL RELEASE AND CONFIDENTIALITY STATEMENT (this “Agreement”) is made and entered into as of the 11th day of\nMay, 2009, by and among API Nanotronics Corp., a Delaware corporation and API ELECTRONICS, INC., a Delaware corporation (collectively,\n“API”), and THOMAS W. MILLS, SR. (“Employee”).\nRECITALS:\nA. Employee’s employment with API will end effective March 19, 2009 (the “Separation Date”).\nB. Employee first received a copy of this Agreement on March 19, 2009 and received a copy of this version of the Agreement on April 28,\n2009.\nC. API enters into this Agreement based solely on Employee’s representation that this Agreement will resolve any and all claims Employee has\nor could have against API for any issue relating to his employment or the end of his employment with API and all affiliates of API and that\nEmployee has waived any right to pursue any lawsuit against API with respect to his employment, the separation of that employment, or any other\nissue that arose prior to his execution of this Agreement.\nD. In an effort to end the employment relationship on an amicable basis, and in consideration of the mutual covenants, promises, and\nobligations contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is mutually\nacknowledged, the Parties hereby agree as follows:\nAGREEMENT:\n1. Definition. Throughout this Agreement, the term “API” shall encompass the following:\n(a) API, as well as any division thereof, parent, subsidiary, affiliated entity, or related entity, predecessors, successors and assigns of any\nof the foregoing; and\n(b) Any current or former officer, director, trustee, agent, employee, shareholder, representative, insurer, or employee benefit or welfare\nprogram or plan (including administrators, trustees, fiduciaries, and insurers of such program or plan) of an entity referenced in or\nencompassed by Subparagraph 1(a).\n2. Resignations; Future Employment. Employee hereby resigns from his position as an officer of API, including without limitation, as\nPresident and Chief Operating Officer for API Nanotronics Corp., a member of API’s Board of Directors and all other officer positions and\ndirectorships he held with API, effective as of the Separation Date. All authority granted Employee by API shall be revoked as of the Separation\nDate. At API’s request, Employee shall execute any and all documents necessary to confirm Employee’s resignation from API. Employee’s\nemployment with API shall end on the Separation Date. Employee agrees that as a\ncondition of this Agreement, Employee will not seek reemployment with API at any time and should Employee apply in the future, his application\nfor employment will not be considered by API and will be null and void. Employee acknowledges that promptly after the Separation Date API is\nrequired to issue a press release announcing Employee’s resignation and promptly after the Effective Date API is required to issued a press release\nwith respect to this Agreement. Employee also acknowledges that API shall make such filings with the United States Securities and Exchange\nCommission with respect to Employee’s resignation and this Agreement as required by law and as it deems appropriate.\n3. Severance Payment and Other Consideration. API, in consideration for the promises contained herein, agrees as follows:\n(a) API will continue to pay Employee’s weekly salary of two thousand four hundred three and 85/100 ($2403.85) (less withholdings and\ndeductions required by law) for fifty-two (52) weekly pay periods (the “Severance Period”), payable to Employee via direct deposit on API’s\nregular paydays. Such payments shall begin within 14 days after the Effective Date. The payments due to Employee pursuant to this\nSection 3(a) cannot be offset by amounts due from Employee to API pursuant to any cause of action or claim, except as set forth in\nSection 9(d) and 10(h).\n(b) API and Employee agree that no amounts are due to Employee for accrued and unpaid vacation as of the Separation Date.\n(c) API will pay the monthly lease payments of $652.00 due under Employee’s car lease with Smithtown Motors Corp. for a period of\ntwelve months from the Separation Date.\n(d) From the Separation Date until the Effective Date, and during the Severance Period, API shall continue Employee’s coverage under\nits medical and dental plans (the “Medical Plans”) at the same benefit level Employee received immediately prior to the Separation Date.\nNotwithstanding the foregoing, in no event will API pay for or continue Employee’s coverage under the Medical Plans during the Severance\nPeriod if Employee becomes eligible for coverage under another group health plan. After the Severance Period, Employee will no longer be\ncovered by API’s Medical Plans. At that time, Employee will have any conversion rights available under the Medical Plans and as otherwise\nprovided by law, including the Comprehensive Omnibus Budget Reconciliation Act (“COBRA”). The period during which Employee will be\nentitled to continuation coverage under COBRA shall begin on the day after the Severance Period. If Employee elects to continue coverage\nunder the Medical Plans, Employee shall be responsible for the payment of premiums, as permitted by law. Employee agrees to immediately\nnotify API in writing, if Employee becomes eligible for such coverage under another group health plan. Such notice shall be given to API\nElectronics Group Corp. c/o Filtran Ltd., 229 Colonnade Road, Nepean, Ontario K2E 7K3, Attn: Chief Financial Officer.\n(e) From the Separation Date until the Effective Date, and during the Severance Period, API shall continue Employee’s coverage under\nits Short Term\n-2-\nDisability, Long Term Disability, Group Life Insurance and the Accidental Death and Dismemberment Plans (“Insurance Plans”). After the\nSeverance Period, Employee will have any conversion rights available under the Insurance Plans.\n(f) Employee shall not participate in the API Retirement Savings Plan after the Separation Date. Employee will be entitled to benefits\nearned and vested (if any) prior to the Separation Date pursuant to the applicable API Retirement Savings Plan provisions.\n(g) Employee will not be eligible for a bonus for the Fiscal Year 2009 or anytime thereafter, or any portion thereof.\nThe payments described in this Section 3 reflect consideration provided to Employee over and above anything of value to which Employee is\nalready entitled. In paying the amount specified in this Section 3, API makes no representation as to the tax consequences or liability arising\nfrom said payment. Moreover, the parties understand and agree that any tax consequences and/or liability arising from the payment to\nEmployee shall be the sole responsibility of Employee. To this extent, Employee acknowledges and agrees that he will pay any and all federal,\nstate and local income tax which may be determined to be due in connection with the payments described in this Section 3. Employee also\nagrees to indemnify API from all tax and/or other liability (including, but not limited to, fines, penalties, interest, and costs) arising from or\nrelating to the payment described in this Section 3 and/or imposed by the Internal Revenue Service, the State of New York, or any other taxing\nagency or tribunal as a result of API’s failure to withhold taxes on the payments described in this Section 3 or any portion thereof.\nEmployee acknowledges and agrees that the consideration and sums included in this Section 3 are the maximum sums ever to be due to\nEmployee from API, and he hereby relinquishes and waives any rights to other forms of payment or benefits under any other agreement\nbetween Employee and API, whether written, oral, express or implied.\n(h) Employee shall be entitled to keep desk, credenza and three matching chairs that formerly belonged to the former owner of Solid\nState Power. Employee shall arrange to pick-up said items, within seven (7) days of the Effective Date (as defined below)\n(i) API shall pay Employee $35,000 in full and complete satisfaction of all claims of Employee to shares of common stock of API or any\nother securities of API. Such amount shall be paid to employee by check and sent to Employee by API on the day following the Effective\nDate.\n4. General Release and Waiver from Employee. In consideration for the payments reflected in Section 3, Employee (for himself, his agents,\nassigns, heirs, executors, and administrators) hereby releases and discharges API from any claim, demand, action, or cause of action, known or\nunknown, which arose at any time from the beginning of time to the date Employee executes this Agreement, and waives all claims relating to,\narising out of, or in any\n-3-\nway connected with his employment with or termination of employment from API including, without limitation, any claim, demand, action, cause of\naction, including money damages and claims for attorneys’ fees, based on but not limited to:\n(a) The Age Discrimination in Employment Act of 1967, as amended (“ADEA”), 29 U.S .C. § 621, et seq.;\n(b) The Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.;\n(c) The Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701, et seq.;\n(d) The Family and Medical Leave Act of 1993, 29 U.S .C. § 2601, et seq.;\n(e) The Civil Rights Act of 1866 and 1964, as amended, 42 U.S .C. § 1981;\n(f) The Employee Retirement Security Act of 1973, 29 U.S .C. § 1001, et seq.;\n(g) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S .C. § 2000(e), et seq.;\n(h) The Fair Credit Reporting Act, 15 U.S .C. § 1681, et seq.;\n(i) The Fair Labor Standards Act, 29 U.S .C. § 201 et seq;\n(j) The New York Human Rights Law;\n(k) The New York Civil Rights Law;\n(l) The New York State Executive Law;\n(m) The New York City Administrative Code;\n(n) Any existing or potential entitlement under any API program or plan, including wages or other paid leave;\n(o) Any existing or potential agreement, contract, representation, policy, procedure, or statement (whether any of the foregoing are\nexpress or implied, oral or written);\n(p) Claims arising under any other federal, state or local fair employment practices law, disability benefits law, and any other employee\nor labor relations statute, executive order, law, ordinance, regulation or order and any duty or other employment-related obligation, including\nany claims arising from any other type of statute, executive order, law or ordinance,\n(q) Claims arising from contract or public policy, as well as tort, tortious cause of conduct, breach of contract, intentional infliction of\nemotional distress, negligence, discrimination, harassment, and retaliation, together with all claims for monetary and equitable relief, punitive\nand compensatory relief and attorneys’ fees and costs; and\n-4-\n(r) The New York Constitution and/or the United States Constitution.\nEmployee understands and agrees that he is releasing API from any and all claims by which he is giving up the opportunity to recover any\ncompensation, damages, or any other form of relief in any proceeding brought by Employee or on Employee’s behalf. Employee understands\nthat this release expressly includes all claims that could have been raised in a federal, state, county or local court and that this release also\nincludes all claims for attorneys’ fees and any other remedy that could have been sought in connection with any of the released claims.\nNotwithstanding the foregoing, this Agreement is not intended to operate as a waiver of any retirement or pension benefits that are vested, the\neligibility and entitlement to which shall be governed by the terms of the applicable plan. Nor shall this Agreement operate to waive or bar any\nclaim or right which - may not by operation of law or regulation be waived or barred.\n5. Release and Waiver from API. In consideration for the covenants and agreements of Employee set forth in this Agreement, API on behalf\nof itself and its affiliates, successors and assigns hereby releases and discharges Employee from any claim, demand, action, or cause of action,\nknown or unknown, which arose at any time from the beginning of time to the date Employee executes this Agreement, and waives all claims\nrelating to, arising out of, or in any way connected with Employee’s employment with or termination of employment from API, except that this\nrelease shall not include any claim, demand, action, or cause of action, known or unknown, arising out of any violation or alleged violation of law or\nany material violation or alleged material violation of a company policy of API or any of its affiliates, which arose at any time from the beginning of\ntime to the date Employee executes this Agreement.\n6. Mutual Disclaimer. Employee states under penalties of perjury that - at the time he executes this Agreement - Employee is not aware of any\nfacts or incidents of wrongdoing, liability, harassment, discrimination or retaliation by API from the beginning of time up to the date Employee signs\nthe Agreement. The parties further understand that the offer of severance creates no precedent for API in dealing with any future separations.\n7. No Other Claims Pending. Employee represents and warrants that, with the possible exception of a claim for unemployment\ncompensation, Employee has not filed or otherwise initiated any complaint, cause of action or claim against API based on events occurring prior to\nand including the date he executes this Agreement. Employee further represents and warrants that, as of the date he executes this Agreement,\nEmployee is unaware of any outstanding complaints, causes of action or claims against API that involve or relate in any way to Employee.\n8. Job References. Employee shall direct job references to API’s Corporate Director of Human Resources. Such references shall be limited to\nlast position held and dates of employment.\n-5-\n9. Confidentiality.\n(a) Employee recognizes and understands the importance of maintaining each and every term of this Agreement in a confidential manner,\nuntil such time as API is required to disclose such terms to the public (the “Disclosure Date”). Employee further understands that prior to the\nDisclosure Date confidentiality is a material and critical aspect of this Agreement and is of paramount concern to all involved. Until the\nDisclosure Date, Employee agrees as follows. Employee agrees to keep the terms of this Agreement confidential and will not disclose any\ninformation concerning it to anyone except his spouse, tax advisor, legal counsel, or anyone required by law to know the contents of the\nAgreement; provided, that Employee shall inform any of these specified persons that Employee is bound by a confidentiality covenant and\nprior to any such disclosure to any of such persons, require that such person agree to abide by the terms of such covenant and not disclose any\ninformation concerning the Agreement. Employee agrees that, in the event he is compelled by court order or process to disclose any terms of\nthis Agreement, Employee shall immediately notify the undersigned representative of API in writing at least seven (7) days prior to the\ndisclosure.\n(b) Employee further agrees that he will not contact any employees or business associates of API, including but not limited to field\nrepresentatives, independent sales representatives, or present or past customers of API, concerning his employment, the cessation of his\nemployment, or any information contained within this Agreement.\n(c) If asked about the terms of any severance, Employee agrees that he will decline comment and will make no comments or physical\ngestures indicating that he has recovered monetary sums from API. Employee also agrees that he has not (i) disclosed his efforts to seek\nadditional severance or money with any current or former API employee, (ii) disclosed legal theories or allegations of discrimination or\nwrongdoing by API with any current or former API employee, or (iii) talked to or encouraged any current or former API employee about filing\na lawsuit, cause of action or claim against API.\n(d) Employee hereby agrees and declares that he, his agents, and anyone else he has told have not and will not violate any of the\nconditions of this Section 9. Employee understands that a violation of this Section 9 would cause irreparable harm to API in an amount\nincapable of precise determination. Accordingly, Employee agrees that in the event he, his agent, or anyone he has told violates this Section9\nor any portion thereof, prior to the time Employee receives all of the payments set forth in Section 3 that are due to him, Employee will forfeit\nany right to any further payments. API shall be entitled to both temporary and permanent injunctive relief, without regard to any requirement\nfor the posting of a bond or any other security by API in connection therewith, in addition to any other form of legal and equitable relief\nprovided for in this Agreement or otherwise appropriate. Employee agrees that, in the event this provision is violated, the remainder of the\nAgreement shall remain in effect except that API will be relieved of any obligation to make further payment(s) set forth in Section 3.\n-6-\n10. Non-Disclosure/Return of Property/Non-Competition.\n(a) Employee agrees that the information he obtained as a result of his position with API was sensitive, private, and/or confidential\ninformation. Employee agrees not to use or disclose (directly or indirectly) confidential, sensitive, or proprietary information concerning API\nobtained by him during his employment with API. For purposes of this Agreement, “Proprietary Information” includes, without limitation, all\nmaterials and information (whether written or not) about API’s current, prior, or prospective services or business activities, formulae, products,\nprocesses, research, plans, system designs, system applications, customers, affiliates, personnel, finances, purchasing, sales, marketing and\nmarkets, accounting, customer lists, business contracts, agreements, licenses, costs, pricing, profits, improvements, discoveries, software,\nbusiness methods and formulas, inventions, and other business aspects of API (including, but not limited to, information concerning, relating\nto, or arising out of relationships with customers, independent sales agents, lenders, investors or other business affiliates), which are not\ngenerally known and accessible to the public at large or which provide API with a competitive advantage. Employee hereby agrees that: (i) he\nhas kept and will keep all such information confidential; and (ii) he will not volunteer or disclose any such information to anyone without first\nobtaining express authorization to do so from the undersigned representative of API. Notwithstanding the foregoing, nothing in this Agreement\nshall be intended to limit Employee’s ability to provide information to legal counsel for API or pursuant to a court order. Moreover, this\nSection 10 shall not encompass or apply to information which is in the public domain, which becomes part of the public domain through no\nact, omission, or fault of Employee.\n(b) By signing this Agreement, Employee agrees that he has not disclosed or used information in violation of this provision and that he\nwill not do so in the future. API does not intend to limit Employee in any way from seeking employment or conducting business so long as\nEmployee does not use or disclose the proprietary information covered by this Section 10 and so long as Employee does not violate any other\nprovision contained within this Agreement. Employee certifies and declares that he already has returned or shall return to the custody of API\nall Proprietary Information, company property (including without limitation any laptop computer, cellular telephone, and Blackberry or similar\ndevices) and Company Documents - as well as any copies of Proprietary Information, company property, and Company Documents - in his\npossession by the Separation Date. The phrase “Company Documents” is defined to include any writings, documents, contracts, records, files,\ntape recordings, correspondence, photographs, communications, summaries, data, notes, memoranda, diskettes, business plans, price books, or\nany other source containing information which relates to or references API and which was provided by API or obtained as a result of\nEmployee’s relationship/employment with API.\n(c) During the one (1) year period following the Separation Date (the “Restricted Period”), Employee will not, whether on Employee’s\nown behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business\norganization, entity or enterprise whatsoever (“Person”), directly or indirectly:\n(i) engage in any business that competes with the businesses of API or its affiliates (including, without limitation, businesses which\nAPI or its affiliates have specific plans to conduct in the future and in connection with which API and/or its affiliates have expended\nmore than nominal time and/or capital and as to which plans Employee is aware) in any geographical area in which API or its affiliates\nproduces, manufactures, sells, leases, rents, licenses or otherwise provides its products or services, (a “Competitive Business”);\n-7-\n(ii) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person)\nwho or which engages in a Competitive Business;\n(iii) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as\nan individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or\n(iv) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this\nAgreement) between API or any of its affiliates and customers, clients, contractors, managers, consultants, suppliers or investors of API\nor its affiliates.\n(d) Notwithstanding anything to the contrary in this Agreement, Employee may, directly or indirectly, own, solely as an investment,\nsecurities of any Person engaged a Competitive Business which are publicly traded on a national or regional stock exchange or on the over-the-\ncounter market if Employee (1) is not a controlling person of, or a member of a group which controls, such person and (2) does not, directly or\nindirectly, own 5% or more of any class of securities of such Person. Furthermore, nothing herein shall prevent Employee from remaining in\nthe electronics business and soliciting customers in the electronics industry so long as Employee is not participating in or soliciting on behalf\nof a Competing Business.\n(e) Employee will not make any legally impermissible statements or representations that disparage, demean, or impugn API, including\nwithout limitation any legally impermissible statements impugning the personal or professional character of any current or former director,\nofficer, or employee of API; and\n(f) During the one (1) year period following the Separation Date neither Employee nor any business in which Employee may engage or\nparticipate will (A) knowingly hire, solicit for hire or attempt to hire any employee of API, or (B) encourage\n-8-\nany employee of API to terminate such employment. For purposes of the Agreement, “Employee” means current employee as well as anyone\nemployed by API within the six (6) month period prior to the Separation Date; provided, that this provision shall not preclude Employee or any\nbusiness in which Employee may engage or participate from soliciting any such employee by means of or hiring any such employee who\nresponds to a public announcement placed by the business as long as Employee otherwise complies with the provisions of the Section 10(e).\n(g) Employee will not directly or indirectly seek to cause any person or organization to discontinue or limit its or their current\nrelationship with API.\n(h) Employee hereby agrees and declares that he, his agents, and anyone else he has told have not and will not violate any of the\nconditions of this Section 10. Employee understands that a violation of this Section 10 would cause irreparable harm to API in an amount\nincapable of precise determination. Accordingly, Employee agrees that in the event he, his agent, or anyone he has told violates this Section 10\nor any portion thereof, prior to the time Employee receives all of the payments set forth in Section 3 that are due to him, Employee will forfeit\nany right to any further payments. API shall be entitled to both temporary and permanent injunctive relief, without regard to any requirement\nfor the posting of a bond or any other security by API in connection therewith, in addition to any other form of legal and equitable relief\nprovided for in this Agreement or otherwise appropriate. Employee agrees that, in the event this provision is violated, the remainder of the\nAgreement shall remain in effect, except that API will be relieved of any obligation to make further payment(s) set forth in Section 3.\n11. Successors. This Agreement shall apply to Employee, as well as to his heirs, executors, administrators, and agents. This Agreement also\nshall apply to, and inure to the benefit of API.\n12. Severability. The parties explicitly acknowledge and agree that the provisions of this Agreement are both reasonable and enforceable.\nHowever, the provisions of this Agreement are severable, and the invalidity of any one or more provisions shall not affect or limit the enforceability\nof the remaining provisions. Should any provision be held unenforceable for any reason, then such provision shall be enforced to the maximum\nextent permitted by law.\n13. Applicable Law. This Agreement shall be interpreted, enforced, and governed under the laws of the State of New York.\n14. Future Assistance. In partial exchange for the severance package, Employee agrees that he will cooperate and make himself reasonably\navailable to current API personnel in the event Employee’s assistance is needed to locate, understand, or clarify work previously performed by\nEmployee or other work-related issues relating to Employee’s employment. Employee also agrees that he will cooperate, assist, and make himself\nreasonably available to API personnel or API agents on an as-needed basis in order to respond to or address any complaint or issue raised by any\nperson or entity that does/did business with API or is/was associated with API in any way. Finally, Employee agrees that he will provide truthful and\n-9-\naccurate sworn testimony in the form of deposition, affidavit, and/or otherwise if requested by current API personnel. API will strive to keep the\nneed for future assistance to a minimum, and will reimburse Employee for reasonable out-of-pocket expenses, including, without limitation, travel\nexpenses, incurred as a result of Employee’s assistance, unless such remuneration would be inappropriate or otherwise prohibited under existing law.\n15. Nonwaiver. The waiver by API of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver\nof any subsequent breach by Employee.\n16. Jurisdiction. Any action regarding this Agreement or otherwise brought against API by Employee, Employee’s agents, assigns, heirs,\nadministrators, or executors, or by his attorney, shall be maintained in a state or federal court in Suffolk County, New York. By signing this\nAgreement, Employee expressly consents to personal jurisdiction in New York. Both parties waive the right to a jury trial.\n17. Knowledge and Understanding. Employee acknowledges that neither Employee nor his agents have disclosed information in violation of\nSections 9 or 10 and will not do so in the future. Employee further acknowledges that, in accordance with the ADEA and in compliance with the\nOlder Workers Benefit Protection Act, Employee:\n(a) Has been, and is hereby, advised to consult with an attorney prior to executing this Agreement and has had the opportunity to do so;\n(b) Is receiving consideration under this Agreement which is grater in kind and amount than that to which Employee would otherwise be\nentitled;\n(c) Has been given a period of twenty-one (21) days within which to consider this Agreement, which allows Employee to make a\nknowing, voluntary, and fully informed decision;\n(d) Has availed himself of all opportunities Employee deems necessary to make a voluntary, knowing, and fully informed decision; and\n(e) Is fully aware of his rights, and has carefully read and fully understands all provisions of this Agreement before signing.\n18. Effective Date. This Agreement may only be accepted during the twenty-one (21) day period after Employee receives this Agreement. In\nthe event Employee executes this Agreement within the twenty-one (21) days following his receipt of this Agreement (“Twenty-One Day-Period”),\nhe shall have an additional period of seven (7) days to revoke the Agreement. Any revocation shall be in writing and addressed/delivered to the\nattention of API Electronics Group Corp. c/o Filtran Ltd., 229 Colonnade Road, Nepean, Ontario K2E 7K3, Attn: Chief Financial Officer. This\nAgreement shall not become effective, therefore, and none of the payments set forth in this Agreement shall become due until Employee has\nexecuted the Agreement and the seven-day revocation period has expired without revocation being exercised (the “Effective Date”), except that API\nshall continue Employee’s current benefits under the Medical Plans and the Insurance Plans from the Separation Date until the Effective Date.\n- 10-\n19. Complete Agreement. This Agreement sets forth the complete agreement between the parties relating to the subjects herein. Employee\nacknowledges and agrees that, in executing this Agreement, Employee does not rely and has not relied upon any representations or statements not set\nforth herein made by API with regard to the subject matter, basis, or effect of this Agreement or otherwise. Notwithstanding the foregoing, nothing\nin this Agreement is intended to nor shall limit, supersede, nullify, or affect any other duty or responsibility Employee may have or owe to API by\nvirtue of any separate agreement or obligation.\n20. Recitals. The recitals to this Agreement are hereby incorporated into this Agreement and made a part hereof.\n21. Affiliate. As used in this Agreement, an “affiliate” of a person shall mean any person controlling, controlled by or under common control\nwith such person.\n- Remainder of Page Intentionally Left Blank; Signature Page Follows -\n-11 -\nBY SIGNING THIS RELEASE, I STATE THAT: I HAVE READ IT; I UNDERSTAND IT AND KNOW THAT I AM GIVING UP\nIMPORTANT RIGHTS; I AGREE TO ALL THE TERMS CONTAINED WITHIN THE AGREEMENT; I AM AWARE OF MY RIGHT\nTO CONSULT WITH AN ATTORNEY BEFORE SIGNING IT AND HAVE HAD THE OPPORTUNITY TO DO SO; I HAVE\nCONSULTED WITH MY ATTORNEY BEFORE SIGNING IT; I HAVE SIGNED IT KNOWINGLY AND VOLUNTARILY.\nAGREED TO BY:\n“Employee”\n“API”\nAPI NANOTRONICS CORP.\n/s/ Thomas W. Mills, Sr.\nBy:\n/s/ Stephen Pudles\nThomas W. Mills, Sr.\nPrinted Name: Stephen Pudles\nDated: 5/4/09\nIts:\nCEO\nDated:\n5-11-09\nAPI ELECTRONICS, INC.\nBy:\n/s/ Stephen Pudles\nPrinted Name: Stephen Pudles\nIts:\nCEO\nDated:\n5-11-09\n- 12-	EX-10.1 2 dex101.htm AGREEMENT, GENERAL RELEASE AND CONFIDENTIALITY STATEMENT\nExhibit 10.1\nAGREEMENT, GENERAL RELEASE AND CONFIDENTIALITY STATEMENT\nThis AGREEMENT, GENERAL RELEASE AND CONFIDENTIALITY STATEMENT (this “Agreement™) is made and entered into as of the 11" day of\nMay, 2009, by and among API Nanotronics Corp., a Delaware corporation and API ELECTRONICS, INC., a Delaware corporation (collectively,\n“API”), and THOMAS W. MILLS, SR. (“Employee”).\nRECITALS:\nA. Employee’s employment with API will end effective March 19, 2009 (the “Separation Date”).\nB. Employee first received a copy of this Agreement on March 19, 2009 and received a copy of this version of the Agreement on April 28,\n2009.\nC. API enters into this Agreement based solely on Employee’s representation that this Agreement will resolve any and all claims Employee has\nor could have against API for any issue relating to his employment or the end of his employment with API and all affiliates of API and that\nEmployee has waived any right to pursue any lawsuit against API with respect to his employment, the separation of that employment, or any other\nissue that arose prior to his execution of this Agreement.\nD. In an effort to end the employment relationship on an amicable basis, and in consideration of the mutual covenants, promises, and\nobligations contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is mutually\nacknowledged, the Parties hereby agree as follows:\nAGREEMENT:\n1. Definition. Throughout this Agreement, the term “API” shall encompass the following:\n(a) API, as well as any division thereof, parent, subsidiary, affiliated entity, or related entity, predecessors, successors and assigns of any\nof the foregoing; and\n(b) Any current or former officer, director, trustee, agent, employee, shareholder, representative, insurer, or employee benefit or welfare\nprogram or plan (including administrators, trustees, fiduciaries, and insurers of such program or plan) of an entity referenced in or\nencompassed by Subparagraph 1(a).\n2. Resignations; Future Employment. Employee hereby resigns from his position as an officer of API, including without limitation, as\nPresident and Chief Operating Officer for API Nanotronics Corp., a member of API’s Board of Directors and all other officer positions and\ndirectorships he held with API, effective as of the Separation Date. All authority granted Employee by API shall be revoked as of the Separation\nDate. At API’s request, Employee shall execute any and all documents necessary to confirm Employee’s resignation from API. Employee’s\nemployment with API shall end on the Separation Date. Employee agrees that as a\ncondition of this Agreement, Employee will not seek reemployment with API at any time and should Employee apply in the future, his application\nfor employment will not be considered by API and will be null and void. Employee acknowledges that promptly after the Separation Date API is\nrequired to issue a press release announcing Employee’s resignation and promptly after the Effective Date API is required to issued a press release\nwith respect to this Agreement. Employee also acknowledges that API shall make such filings with the United States Securities and Exchange\nCommission with respect to Employee’s resignation and this Agreement as required by law and as it deems appropriate.\n3. Severance Payment and Other Consideration. AP, in consideration for the promises contained herein, agrees as follows:\n(a) API will continue to pay Employee’s weekly salary of two thousand four hundred three and 85/100 ($2403.85) (less withholdings and\ndeductions required by law) for fifty-two (52) weekly pay periods (the “Severance Period”), payable to Employee via direct deposit on API’s\nregular paydays. Such payments shall begin within 14 days after the Effective Date. The payments due to Employee pursuant to this\nSection 3(a) cannot be offset by amounts due from Employee to API pursuant to any cause of action or claim, except as set forth in\nSection 9(d) and 10(h).\n(b) API and Employee agree that no amounts are due to Employee for accrued and unpaid vacation as of the Separation Date.\n(c) API will pay the monthly lease payments of $652.00 due under Employee’s car lease with Smithtown Motors Corp. for a period of\ntwelve months from the Separation Date.\n(d) From the Separation Date until the Effective Date, and during the Severance Period, API shall continue Employee’s coverage under\nits medical and dental plans (the “Medical Plans”) at the same benefit level Employee received immediately prior to the Separation Date.\nNotwithstanding the foregoing, in no event will API pay for or continue Employee’s coverage under the Medical Plans during the Severance\nPeriod if Employee becomes eligible for coverage under another group health plan. After the Severance Period, Employee will no longer be\ncovered by API's Medical Plans. At that time, Employee will have any conversion rights available under the Medical Plans and as otherwise\nprovided by law, including the Comprehensive Omnibus Budget Reconciliation Act (“COBRA”). The period during which Employee will be\nentitled to continuation coverage under COBRA shall begin on the day after the Severance Period. If Employee elects to continue coverage\nunder the Medical Plans, Employee shall be responsible for the payment of premiums, as permitted by law. Employee agrees to immediately\nnotify API in writing, if Employee becomes eligible for such coverage under another group health plan. Such notice shall be given to API\nElectronics Group Corp. c/o Filtran Ltd., 229 Colonnade Road, Nepean, Ontario K2E 7K3, Attn: Chief Financial Officer.\n(e) From the Separation Date until the Effective Date, and during the Severance Period, API shall continue Employee’s coverage under\nits Short Term\n-\nDisability, Long Term Disability, Group Life Insurance and the Accidental Death and Dismemberment Plans (“Insurance Plans”). After the\nSeverance Period, Employee will have any conversion rights available under the Insurance Plans.\n(f) Employee shall not participate in the API Retirement Savings Plan after the Separation Date. Employee will be entitled to benefits\nearned and vested (if any) prior to the Separation Date pursuant to the applicable API Retirement Savings Plan provisions.\n(g) Employee will not be eligible for a bonus for the Fiscal Year 2009 or anytime thereafter, or any portion thereof.\nThe payments described in this Section 3 reflect consideration provided to Employee over and above anything of value to which Employee is\nalready entitled. In paying the amount specified in this Section 3, API makes no representation as to the tax consequences or liability arising\nfrom said payment. Moreover, the parties understand and agree that any tax consequences and/or liability arising from the payment to\nEmployee shall be the sole responsibility of Employee. To this extent, Employee acknowledges and agrees that he will pay any and all federal,\nstate and local income tax which may be determined to be due in connection with the payments described in this Section 3. Employee also\nagrees to indemnify API from all tax and/or other liability (including, but not limited to, fines, penalties, interest, and costs) arising from or\nrelating to the payment described in this Section 3 and/or imposed by the Internal Revenue Service, the State of New York, or any other taxing\nagency or tribunal as a result of API’s failure to withhold taxes on the payments described in this Section 3 or any portion thereof.\nEmployee acknowledges and agrees that the consideration and sums included in this Section 3 are the maximum sums ever to be due to\nEmployee from API, and he hereby relinquishes and waives any rights to other forms of payment or benefits under any other agreement\nbetween Employee and API, whether written, oral, express or implied.\n(h) Employee shall be entitled to keep desk, credenza and three matching chairs that formerly belonged to the former owner of Solid\nState Power. Employee shall arrange to pick-up said items, within seven (7) days of the Effective Date (as defined below)\n(i) API shall pay Employee $35,000 in full and complete satisfaction of all claims of Employee to shares of common stock of API or any\nother securities of API. Such amount shall be paid to employee by check and sent to Employee by API on the day following the Effective\nDate.\n4. General Release and Waiver from Employee. In consideration for the payments reflected in Section 3, Employee (for himself, his agents,\nassigns, heirs, executors, and administrators) hereby releases and discharges API from any claim, demand, action, or cause of action, known or\nunknown, which arose at any time from the beginning of time to the date Employee executes this Agreement, and waives all claims relating to,\narising out of, or in any\n_3-\nway connected with his employment with or termination of employment from API including, without limitation, any claim, demand, action, cause of\naction, including money damages and claims for attorneys’ fees, based on but not limited to:\n(a) The Age Discrimination in Employment Act of 1967, as amended (“ADEA”), 29 U.S.C. § 621, et seq.;\n(b) The Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.;\n(c) The Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701, et seq.;\n(d) The Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq.;\n(e) The Civil Rights Act of 1866 and 1964, as amended, 42 U.S.C. § 1981,\n(f) The Employee Retirement Security Act of 1973, 29 U.S.C. § 1001, et seq;\n(g) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e), et seq.;\n(h) The Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq.;\n(i) The Fair Labor Standards Act, 29 U.S.C. § 201 et seq;\n(j) The New York Human Rights Law;\n(k) The New York Civil Rights Law;\n(1) The New York State Executive Law;\n(m) The New York City Administrative Code;\n(n) Any existing or potential entitlement under any API program or plan, including wages or other paid leave;\n(o) Any existing or potential agreement, contract, representation, policy, procedure, or statement (whether any of the foregoing are\nexpress or implied, oral or written);\n(p) Claims arising under any other federal, state or local fair employment practices law, disability benefits law, and any other employee\nor labor relations statute, executive order, law, ordinance, regulation or order and any duty or other employment-related obligation, including\nany claims arising from any other type of statute, executive order, law or ordinance,\n(q) Claims arising from contract or public policy, as well as tort, tortious cause of conduct, breach of contract, intentional infliction of\nemotional distress, negligence, discrimination, harassment, and retaliation, together with all claims for monetary and equitable relief, punitive\nand compensatory relief and attorneys’ fees and costs; and\n4-\n(r) The New York Constitution and/or the United States Constitution.\nEmployee understands and agrees that he is releasing API from any and all claims by which he is giving up the opportunity to recover any\ncompensation, damages, or any other form of relief in any proceeding brought by Employee or on Employee’s behalf. Employee understands\nthat this release expressly includes all claims that could have been raised in a federal, state, county or local court and that this release also\nincludes all claims for attorneys’ fees and any other remedy that could have been sought in connection with any of the released claims.\nNotwithstanding the foregoing, this Agreement is not intended to operate as a waiver of any retirement or pension benefits that are vested, the\neligibility and entitlement to which shall be governed by the terms of the applicable plan. Nor shall this Agreement operate to waive or bar any\nclaim or right which - may not by operation of law or regulation be waived or barred.\n5. Release and Waiver from API. In consideration for the covenants and agreements of Employee set forth in this Agreement, API on behalf\nof itself and its affiliates, successors and assigns hereby releases and discharges Employee from any claim, demand, action, or cause of action,\nknown or unknown, which arose at any time from the beginning of time to the date Employee executes this Agreement, and waives all claims\nrelating to, arising out of, or in any way connected with Employee’s employment with or termination of employment from API, except that this\nrelease shall not include any claim, demand, action, or cause of action, known or unknown, arising out of any violation or alleged violation of law or\nany material violation or alleged material violation of a company policy of API or any of its affiliates, which arose at any time from the beginning of\ntime to the date Employee executes this Agreement.\n6. Mutual Disclaimer. Employee states under penalties of perjury that - at the time he executes this Agreement - Employee is not aware of any\nfacts or incidents of wrongdoing, liability, harassment, discrimination or retaliation by API from the beginning of time up to the date Employee signs\nthe Agreement. The parties further understand that the offer of severance creates no precedent for API in dealing with any future separations.\n7. No Other Claims Pending. Employee represents and warrants that, with the possible exception of a claim for unemployment\ncompensation, Employee has not filed or otherwise initiated any complaint, cause of action or claim against API based on events occurring prior to\nand including the date he executes this Agreement. Employee further represents and warrants that, as of the date he executes this Agreement,\nEmployee is unaware of any outstanding complaints, causes of action or claims against API that involve or relate in any way to Employee.\n8. Job References. Employee shall direct job references to API’s Corporate Director of Human Resources. Such references shall be limited to\nlast position held and dates of employment.\n_5-\n9. Confidentiality.\n(a) Employee recognizes and understands the importance of maintaining each and every term of this Agreement in a confidential manner,\nuntil such time as API is required to disclose such terms to the public (the “Disclosure Date”). Employee further understands that prior to the\nDisclosure Date confidentiality is a material and critical aspect of this Agreement and is of paramount concern to all involved. Until the\nDisclosure Date, Employee agrees as follows. Employee agrees to keep the terms of this Agreement confidential and will not disclose any\ninformation concerning it to anyone except his spouse, tax advisor, legal counsel, or anyone required by law to know the contents of the\nAgreement; provided, that Employee shall inform any of these specified persons that Employee is bound by a confidentiality covenant and\nprior to any such disclosure to any of such persons, require that such person agree to abide by the terms of such covenant and not disclose any\ninformation concerning the Agreement. Employee agrees that, in the event he is compelled by court order or process to disclose any terms of\nthis Agreement, Employee shall immediately notify the undersigned representative of API in writing at least seven (7) days prior to the\ndisclosure.\n(b) Employee further agrees that he will not contact any employees or business associates of API, including but not limited to field\nrepresentatives, independent sales representatives, or present or past customers of API, concerning his employment, the cessation of his\nemployment, or any information contained within this Agreement.\n(c) If asked about the terms of any severance, Employee agrees that he will decline comment and will make no comments or physical\ngestures indicating that he has recovered monetary sums from API. Employee also agrees that he has not (i) disclosed his efforts to seek\nadditional severance or money with any current or former API employee, (ii) disclosed legal theories or allegations of discrimination or\nwrongdoing by API with any current or former API employee, or (iii) talked to or encouraged any current or former API employee about filing\na lawsuit, cause of action or claim against API.\n(d) Employee hereby agrees and declares that he, his agents, and anyone else he has told have not and will not violate any of the\nconditions of this Section 9. Employee understands that a violation of this Section 9 would cause irreparable harm to API in an amount\nincapable of precise determination. Accordingly, Employee agrees that in the event he, his agent, or anyone he has told violates this Section9\nor any portion thereof, prior to the time Employee receives all of the payments set forth in Section 3 that are due to him, Employee will forfeit\nany right to any further payments. API shall be entitled to both temporary and permanent injunctive relief, without regard to any requirement\nfor the posting of a bond or any other security by API in connection therewith, in addition to any other form of legal and equitable relief\nprovided for in this Agreement or otherwise appropriate. Employee agrees that, in the event this provision is violated, the remainder of the\nAgreement shall remain in effect except that API will be relieved of any obligation to make further payment(s) set forth in Section 3.\n-6-\n10. Non-Disclosure/Return of Property/Non-Competition.\n(a) Employee agrees that the information he obtained as a result of his position with API was sensitive, private, and/or confidential\ninformation. Employee agrees not to use or disclose (directly or indirectly) confidential, sensitive, or proprietary information concerning API\nobtained by him during his employment with API. For purposes of this Agreement, “Proprietary Information” includes, without limitation, all\nmaterials and information (whether written or not) about API’s current, prior, or prospective services or business activities, formulae, products,\nprocesses, research, plans, system designs, system applications, customers, affiliates, personnel, finances, purchasing, sales, marketing and\nmarkets, accounting, customer lists, business contracts, agreements, licenses, costs, pricing, profits, improvements, discoveries, software,\nbusiness methods and formulas, inventions, and other business aspects of API (including, but not limited to, information concerning, relating\nto, or arising out of relationships with customers, independent sales agents, lenders, investors or other business affiliates), which are not\ngenerally known and accessible to the public at large or which provide API with a competitive advantage. Employee hereby agrees that: (i) he\nhas kept and will keep all such information confidential; and (ii) he will not volunteer or disclose any such information to anyone without first\nobtaining express authorization to do so from the undersigned representative of API. Notwithstanding the foregoing, nothing in this Agreement\nshall be intended to limit Employee’s ability to provide information to legal counsel for API or pursuant to a court order. Moreover, this\nSection 10 shall not encompass or apply to information which is in the public domain, which becomes part of the public domain through no\nact, omission, or fault of Employee.\n(b) By signing this Agreement, Employee agrees that he has not disclosed or used information in violation of this provision and that he\nwill not do so in the future. API does not intend to limit Employee in any way from seeking employment or conducting business so long as\nEmployee does not use or disclose the proprietary information covered by this Section 10 and so long as Employee does not violate any other\nprovision contained within this Agreement. Employee certifies and declares that he already has returned or shall return to the custody of API\nall Proprietary Information, company property (including without limitation any laptop computer, cellular telephone, and Blackberry or similar\ndevices) and Company Documents - as well as any copies of Proprietary Information, company property, and Company Documents - in his\npossession by the Separation Date. The phrase “Company Documents” is defined to include any writings, documents, contracts, records, files,\ntape recordings, correspondence, photographs, communications, summaries, data, notes, memoranda, diskettes, business plans, price books, or\nany other source containing information which relates to or references API and which was provided by API or obtained as a result of\nEmployee’s relationship/employment with API.\n(c) During the one (1) year period following the Separation Date (the “Restricted Period”), Employee will not, whether on Employee’s\nown behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business\norganization, entity or enterprise whatsoever (“Person”), directly or indirectly:\n(i) engage in any business that competes with the businesses of API or its affiliates (including, without limitation, businesses which\nAPI or its affiliates have specific plans to conduct in the future and in connection with which API and/or its affiliates have expended\nmore than nominal time and/or capital and as to which plans Employee is aware) in any geographical area in which API or its affiliates\nproduces, manufactures, sells, leases, rents, licenses or otherwise provides its products or services, (a “Competitive Business”);\n_7-\n(ii) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person)\nwho or which engages in a Competitive Business;\n(iii) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as\nan individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or\n(iv) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this\nAgreement) between API or any of its affiliates and customers, clients, contractors, managers, consultants, suppliers or investors of API\nor its affiliates.\n(d) Notwithstanding anything to the contrary in this Agreement, Employee may, directly or indirectly, own, solely as an investment,\nsecurities of any Person engaged a Competitive Business which are publicly traded on a national or regional stock exchange or on the over-the-\ncounter market if Employee (1) is not a controlling person of, or a member of a group which controls, such person and (2) does not, directly or\nindirectly, own 5% or more of any class of securities of such Person. Furthermore, nothing herein shall prevent Employee from remaining in\nthe electronics business and soliciting customers in the electronics industry so long as Employee is not participating in or soliciting on behalf\nof a Competing Business.\n(e) Employee will not make any legally impermissible statements or representations that disparage, demean, or impugn API, including\nwithout limitation any legally impermissible statements impugning the personal or professional character of any current or former director,\nofficer, or employee of API; and\n(f) During the one (1) year period following the Separation Date neither Employee nor any business in which Employee may engage or\nparticipate will (A) knowingly hire, solicit for hire or attempt to hire any employee of API, or (B) encourage\n_8-\nany employee of API to terminate such employment. For purposes of the Agreement, “Employee” means current employee as well as anyone\nemployed by API within the six (6) month period prior to the Separation Date; provided, that this provision shall not preclude Employee or any\nbusiness in which Employee may engage or participate from soliciting any such employee by means of or hiring any such employee who\nresponds to a public announcement placed by the business as long as Employee otherwise complies with the provisions of the Section 10(e).\n(g) Employee will not directly or indirectly seek to cause any person or organization to discontinue or limit its or their current\nrelationship with API.\n(h) Employee hereby agrees and declares that he, his agents, and anyone else he has told have not and will not violate any of the\nconditions of this Section 10. Employee understands that a violation of this Section 10 would cause irreparable harm to API in an amount\nincapable of precise determination. Accordingly, Employee agrees that in the event he, his agent, or anyone he has told violates this Section 10\nor any portion thereof, prior to the time Employee receives all of the payments set forth in Section 3 that are due to him, Employee will forfeit\nany right to any further payments. API shall be entitled to both temporary and permanent injunctive relief, without regard to any requirement\nfor the posting of a bond or any other security by API in connection therewith, in addition to any other form of legal and equitable relief\nprovided for in this Agreement or otherwise appropriate. Employee agrees that, in the event this provision is violated, the remainder of the\nAgreement shall remain in effect, except that API will be relieved of any obligation to make further payment(s) set forth in Section 3.\n11. Successors. This Agreement shall apply to Employee, as well as to his heirs, executors, administrators, and agents. This Agreement also\nshall apply to, and inure to the benefit of API.\n12. Severability. The parties explicitly acknowledge and agree that the provisions of this Agreement are both reasonable and enforceable.\nHowever, the provisions of this Agreement are severable, and the invalidity of any one or more provisions shall not affect or limit the enforceability\nof the remaining provisions. Should any provision be held unenforceable for any reason, then such provision shall be enforced to the maximum\nextent permitted by law.\n13. Applicable Law. This Agreement shall be interpreted, enforced, and governed under the laws of the State of New York.\n14. Future Assistance. In partial exchange for the severance package, Employee agrees that he will cooperate and make himself reasonably\navailable to current API personnel in the event Employee’s assistance is needed to locate, understand, or clarify work previously performed by\nEmployee or other work-related issues relating to Employee’s employment. Employee also agrees that he will cooperate, assist, and make himself\nreasonably available to API personnel or API agents on an as-needed basis in order to respond to or address any complaint or issue raised by any\nperson or entity that does/did business with API or is/was associated with API in any way. Finally, Employee agrees that he will provide truthful and\n9.\naccurate sworn testimony in the form of deposition, affidavit, and/or otherwise if requested by current API personnel. API will strive to keep the\nneed for future assistance to a minimum, and will reimburse Employee for reasonable out-of-pocket expenses, including, without limitation, travel\nexpenses, incurred as a result of Employee’s assistance, unless such remuneration would be inappropriate or otherwise prohibited under existing law.\n15. Nonwaiver. The waiver by API of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver\nof any subsequent breach by Employee.\n16. Jurisdiction. Any action regarding this Agreement or otherwise brought against API by Employee, Employee’s agents, assigns, heirs,\nadministrators, or executors, or by his attorney, shall be maintained in a state or federal court in Suffolk County, New York. By signing this\nAgreement, Employee expressly consents to personal jurisdiction in New York. Both parties waive the right to a jury trial.\n17. Knowledge and Understanding. Employee acknowledges that neither Employee nor his agents have disclosed information in violation of\nSections 9 or 10 and will not do so in the future. Employee further acknowledges that, in accordance with the ADEA and in compliance with the\nOlder Workers Benefit Protection Act, Employee:\n(a) Has been, and is hereby, advised to consult with an attorney prior to executing this Agreement and has had the opportunity to do so;\n(b) Is receiving consideration under this Agreement which is grater in kind and amount than that to which Employee would otherwise be\nentitled;\n(c) Has been given a period of twenty-one (21) days within which to consider this Agreement, which allows Employee to make a\nknowing, voluntary, and fully informed decision;\n(d) Has availed himself of all opportunities Employee deems necessary to make a voluntary, knowing, and fully informed decision; and\n(e) Is fully aware of his rights, and has carefully read and fully understands all provisions of this Agreement before signing.\n18. Effective Date. This Agreement may only be accepted during the twenty-one (21) day period after Employee receives this Agreement. In\nthe event Employee executes this Agreement within the twenty-one (21) days following his receipt of this Agreement (“Twenty-One Day-Period”),\nhe shall have an additional period of seven (7) days to revoke the Agreement. Any revocation shall be in writing and addressed/delivered to the\nattention of API Electronics Group Corp. c/o Filtran Ltd., 229 Colonnade Road, Nepean, Ontario K2E 7K3, Attn: Chief Financial Officer. This\nAgreement shall not become effective, therefore, and none of the payments set forth in this Agreement shall become due until Employee has\nexecuted the Agreement and the seven-day revocation period has expired without revocation being exercised (the “Effective Date), except that API\nshall continue Employee’s current benefits under the Medical Plans and the Insurance Plans from the Separation Date until the Effective Date.\n-10-\n19. Complete Agreement. This Agreement sets forth the complete agreement between the parties relating to the subjects herein. Employee\nacknowledges and agrees that, in executing this Agreement, Employee does not rely and has not relied upon any representations or statements not set\nforth herein made by API with regard to the subject matter, basis, or effect of this Agreement or otherwise. Notwithstanding the foregoing, nothing\nin this Agreement is intended to nor shall limit, supersede, nullify, or affect any other duty or responsibility Employee may have or owe to API by\nvirtue of any separate agreement or obligation.\n20. Recitals. The recitals to this Agreement are hereby incorporated into this Agreement and made a part hereof.\n21. Affiliate. As used in this Agreement, an “affiliate” of a person shall mean any person controlling, controlled by or under common control\nwith such person.\n- Remainder of Page Intentionally Left Blank; Signature Page Follows -\n-11-\nBY SIGNING THIS RELEASE, I STATE THAT: I HAVE READ IT; I UNDERSTAND IT AND KNOW THAT I AM GIVING UP IMPORTANT RIGHTS; I AGREE TO ALL THE TERMS CONTAINED WITHIN THE AGREEMENT; I AM AWARE OF MY RIGHT TO CONSULT WITH AN ATTORNEY BEFORE SIGNING IT AND HAVE HAD THE OPPORTUNITY TO DO SO; I HAVE CONSULTED WITH MY ATTORNEY BEFORE SIGNING IT; I HAVE SIGNED IT KNOWINGLY AND VOLUNTARILY. AGREED TO BY:\n“Employee”\n/s/ Thomas W. Mills, Sr.\nThomas W. Mills, Sr.\nDated: 5/4/09\n-12-\n“API”\nAPI NANOTRONICS CORP.\nBy: /s/ Stephen Pudles\nPrinted Name: Stephen Pudles\nIts: CEO\nDated: 5-11-09\nAPI ELECTRONICS, INC.\nBy: /s/ Stephen Pudles\nPrinted Name: Stephen Pudles\nIts: CEO\nDated: 5-11-09	EX-10.1 2 dex101.htm AGREEMENT, GENERAL RELEASE AND CONFIDENTIALITY STATEMENT\nExhibit 10.1\nAGREEMENT, GENERAL RELEASE AND CONFIDENTIALITY STATEMENT\nThis AGREEMENT, GENERAL RELEASE AND CONFIDENTIALITY STATEMENT (this "Agreement") is made and entered into as of the 11th day of\nMay,\n2009, by and among API Nanotronics Corp., a Delaware corporation and API ELECTRONICS, INC., a Delaware corporation (collectively,\n"API"), and THOMAS W. MILLS, SR. ("Employee").\nRECITALS:\nA. Employee's employment with API will end effective March 19, 2009 (the "Separation Date")\nB. Employee first received a copy of this Agreement on March 19, 2009 and received a copy of this version of the Agreement on April 28,\n2009.\nC. API enters into this Agreement based solely on Employee's representation that this Agreement will resolve any and all claims Employee has\nor could have against API for any issue relating to his employment or the end of his employment with API and all affiliates of API and that\nEmployee has waived any right to pursue any lawsuit against API with respect to his employment, the separation of that employment, or any other\nissue that arose prior to his execution of this Agreement.\nD. In an effort to end the employment relationship on an amicable basis, and in consideration of the mutual covenants, promises, and\nobligations contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is mutually\nacknowledged, the Parties hereby agree as follows:\nAGREEMENT:\n1. Definition. Throughout this Agreement, the term "API" shall encompass the following:\n(a) API, as well as any division thereof, parent, subsidiary, affiliated entity, or related entity, predecessors, successors and assigns of any\nof the foregoing; and\n(b) Any current or former officer, director, trustee, agent, employee, shareholder, representative, insurer, or employee benefit or welfare\nprogram or plan (including administrators, trustees, fiduciaries, and insurers of such program or plan) of an entity referenced in or\nencompassed by Subparagraph 1(a).\n2. Resignations; Future Employment. Employee hereby resigns from his position as an officer of API, including without limitation, as\nPresident and Chief Operating Officer for API Nanotronics Corp., a member of API's Board of Directors and all other officer positions and\ndirectorships he held with API, effective as of the Separation Date. All authority granted Employee by API shall be revoked as of the Separation\nDate. At API's request, Employee shall execute any and all documents necessary to confirm Employee's resignation from API. Employee's\nemployment with API shall end on the Separation Date. Employee agrees that as a\ncondition of this Agreement, Employee will not seek reemployment with API at any time and should Employee apply in the future, his application\nfor employment will not be considered by API and will be null and void. Employee acknowledges that promptly after the Separation Date API is\nrequired to issue a press release announcing Employee's resignation and promptly after the Effective Date API is required to issued a press release\nwith respect to this Agreement. Employee also acknowledges that API shall make such filings with the United States Securities and Exchange\nCommission with respect to Employee's resignation and this Agreement as required by law and as it deems appropriate.\n3.\nSeverance Payment and Other Consideration. API, in consideration for the promises contained herein, agrees as follows:\n(a) API will continue to pay Employee's weekly salary of two thousand four hundred three and 85/100 ($2403.85) (less withholdings and\ndeductions required by law) for fifty-two (52) weekly pay periods (the "Severance Period"), payable to Employee via direct deposit on API's\nregular paydays. Such payments shall begin within 14 days after the Effective Date. The payments due to Employee pursuant to this\nSection 3(a) cannot be offset by amounts due from Employee to API pursuant to any cause of action or claim, except as set forth in\nSection 9(d) and 10(h).\n(b) API and Employee agree that no amounts are due to Employee for accrued and unpaid vacation as of the Separation Date.\n(c) API will pay the monthly lease payments of $652.00 due under Employee's car lease with Smithtown Motors Corp. for a period\nof\ntwelve months from the Separation Date.\n(d) From the Separation Date until the Effective Date, and during the Severance Period, API shall continue Employee's coverage under\nits medical and dental plans (the "Medical Plans") at the same benefit level Employee received immediately prior to the Separation Date.\nNotwithstanding the foregoing, in no event will API pay for or continue Employee's coverage under the Medical Plans during the Severance\nPeriod\nif\nEmployee becomes eligible for coverage under another group health plan. After the Severance Period, Employee will no longer be\ncovered by API's Medical Plans. At that time, Employee will have any conversion rights available under the Medical Plans and as otherwise\nprovided by law, including the Comprehensive Omnibus Budget Reconciliation Act ("COBRA"). The period during which Employee will be\nentitled to continuation coverage under COBRA shall begin on the day after the Severance Period. If Employee elects to continue coverage\nunder the Medical Plans, Employee shall be responsible for the payment of premiums, as permitted by law. Employee agrees to immediately\nnotify API in writing, if Employee becomes eligible for such coverage under another group health plan. Such notice shall be given to API\nElectronics Group Corp. c/o Filtran Ltd., 229 Colonnade Road, Nepean, Ontario K2E 7K3, Attn: Chief Financial Officer.\n(e) From the Separation Date until the Effective Date, and during the Severance Period, API shall continue Employee's coverage under\nits Short Term\n-2-\nDisability, Long Term Disability, Group Life Insurance and the Accidental Death and Dismemberment Plans ("Insurance Plans"). After the\nSeverance Period, Employee will have any conversion rights available under the Insurance Plans.\n(f) Employee shall not participate in the API Retirement Savings Plan after the Separation Date. Employee will be entitled to benefits\nearned and vested (if any) prior to the Separation Date pursuant to the applicable API Retirement Savings Plan provisions.\n(g) Employee will not be eligible for a bonus for the Fiscal Year 2009 or anytime thereafter, or any portion thereof.\nThe payments described in this Section 3 reflect consideration provided to Employee over and above anything of value to which Employee is\nalready entitled. In paying the amount specified in this Section 3, API makes no representation as to the tax consequences or liability arising\nfrom said payment. Moreover, the parties understand and agree that any tax consequences and/or liability arising from the payment to\nEmployee shall be the sole responsibility of Employee. To this extent, Employee acknowledges and agrees that he will pay any and all federal,\nstate and local income tax which may be determined to be due in connection with the payments described in this Section 3. Employee also\nagrees to indemnify API from all tax and/or other liability (including, but not limited to, fines, penalties, interest, and costs) arising from or\nrelating to the payment described in this Section 3 and/or imposed by the Internal Revenue Service, the State of New York, or any other taxing\nagency or tribunal as a result of API's failure to withhold taxes on the payments described in this Section 3 or any portion thereof.\nEmployee acknowledges and agrees that the consideration and sums included in this Section 3 are the maximum sums ever to be due to\nEmployee from API, and he hereby relinquishes and waives any rights to other forms of payment or benefits under any other agreement\nbetween Employee and API, whether written, oral, express or implied.\n(h) Employee shall be entitled to keep desk, credenza and three matching chairs that formerly belonged to the former owner of Solid\nState Power. Employee shall arrange to pick-up said items, within seven (7) days of the Effective Date (as defined below)\n(i) API shall pay Employee $35,000 in full and complete satisfaction of all claims of Employee to shares of common stock of API or any\nother securities of API. Such amount shall be paid to employee by check and sent to Employee by API on the day following the Effective\nDate.\n4.\nGeneral Release and Waiver from Employee. In consideration for the payments reflected in Section 3, Employee (for himself, his agents,\nassigns, heirs, executors, and administrators) hereby releases and discharges API from any claim, demand, action, or cause of action, known or\nunknown, which arose at any time from the beginning of time to the date Employee executes this Agreement, and waives all claims relating to,\narising out of, or in any\n-3-\nway connected with his employment with or termination of employment from API including, without limitation, any claim, demand, action, cause of\naction, including money damages and claims for attorneys' fees, based on but not limited to:\n(a) The Age Discrimination in Employment Act of 1967, as amended ("ADEA"), 29 U.S.C. S 621, et seq.;\n(b) The Americans with Disabilities Act of 1990, 42 U.S.C. S 12101, et seq.;\n(c) The Rehabilitation Act of 1973, as amended, 29 U.S.C. S 701, et seg.;\n(d) The Family and Medical Leave Act of 1993, 29 U.S.C. 8 2601, et seq.;\n(e) The Civil Rights Act of 1866 and 1964, as amended, 42 U.S.C. 8 1981;\n(f) The Employee Retirement Security Act of 1973, 29 U.S.C. S 1001, et seq.;\n(g) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. S 2000(e), et seg.;\n(h) The Fair Credit Reporting Act, 15 U.S.C. S 1681, et seq.;\n(i) The Fair Labor Standards Act, 29 U.S.C. S 201 et seg;\n(j) The New York Human Rights Law;\n(k) The New York Civil Rights Law;\n(1) The New York State Executive Law;\n(m) The New York City Administrative Code;\n(n) Any existing or potential entitlement under any API program or plan, including wages or other paid leave;\n(o) Any existing or potential agreement, contract, representation, policy, procedure, or statement (whether any of the foregoing are\nexpress or implied, oral or written);\n(p) Claims arising under any other federal, state or local fair employment practices law, disability benefits law, and any other employee\nor labor relations statute, executive order, law, ordinance, regulation or order and any duty or other employment-related obligation, including\nany claims arising from any other type of statute, executive order, law or ordinance,\n(q) Claims arising from contract or public policy, as well as tort, tortious cause of conduct, breach of contract, intentional infliction of\nemotional distress, negligence, discrimination, harassment, and retaliation, together with all claims for monetary and equitable relief, punitive\nand compensatory relief and attorneys' fees and costs; and\n-4-\n(r) The New York Constitution and/or the United States Constitution.\nEmployee understands and agrees that he is releasing API from any and all claims by which he is giving up the opportunity to recover any\ncompensation, damages, or any other form of relief in any proceeding brought by Employee or on Employee's behalf. Employee understands\nthat this release expressly includes all claims that could have been raised in a federal, state, county or local court and that this release also\nincludes all claims for attorneys' fees and any other remedy that could have been sought in connection with any of the released claims.\nNotwithstanding the foregoing, this Agreement is not intended to operate as a waiver of any retirement or pension benefits that are vested, the\neligibility and entitlement to which shall be governed by the terms of the applicable plan. Nor shall this Agreement operate to waive or bar any\nclaim or right which may not by operation of law or regulation be waived or barred.\n5. Release and Waiver from API. In consideration for the covenants and agreements of Employee set forth in this Agreement, API on behalf\nof itself and its affiliates, successors and assigns hereby releases and discharges Employee from any claim, demand, action, or cause of action,\nknown or unknown, which arose at any time from the beginning of time to the date Employee executes this Agreement, and waives all claims\nrelating to, arising out of, or in any way connected with Employee's employment with or termination of employment from API, except that this\nrelease shall not include any claim, demand, action, or cause of action, known or unknown, arising out of any violation or alleged violation of law or\nany material violation or alleged material violation of a company policy of API or any of its affiliates, which arose at any time from the beginning of\ntime to the date Employee executes this Agreement.\n6.\nMutual Disclaimer. Employee states under penalties of perjury that at the time he executes this Agreement Employee is not aware of any\nfacts or incidents of wrongdoing, liability, harassment, discrimination or retaliation by API from the beginning of time up to the date Employee signs\nthe Agreement. The parties further understand that the offer of severance creates no precedent for API in dealing with any future separations.\n7.\nNo Other Claims Pending. Employee represents and warrants that, with the possible exception of a claim for unemployment\ncompensation, Employee has not filed or otherwise initiated any complaint, cause of action or claim against API based on events occurring prior to\nand including the date he executes this Agreement. Employee further represents and warrants that, as of the date he executes this Agreement,\nEmployee is unaware of any outstanding complaints, causes of action or claims against API that involve or relate in any way to Employee.\n8.\nJob References. Employee shall direct job references to API's Corporate Director of Human Resources. Such references shall be limited to\nlast position held and dates of employment.\n-5-\n9. Confidentiality.\n(a) Employee recognizes and understands the importance of maintaining each and every term of this Agreement in a confidential manner,\nuntil such time as API is required to disclose such terms to the public (the "Disclosure Date"). Employee further understands that prior to the\nDisclosure Date confidentiality is a material and critical aspect of this Agreement and is of paramount concern to all involved. Until the\nDisclosure Date, Employee agrees as follows. Employee agrees to keep the terms of this Agreement confidential and will not disclose any\ninformation concerning it to anyone except his spouse, tax advisor, legal counsel, or anyone required by law to know the contents of the\nAgreement; provided, that Employee shall inform any of these specified persons that Employee is bound by a confidentiality covenant and\nprior to any such disclosure to any of such persons, require that such person agree to abide by the terms of such covenant and not disclose\nany\ninformation concerning the Agreement. Employee agrees that, in the event he is compelled by court order or process to disclose any terms of\nthis Agreement, Employee shall immediately notify the undersigned representative of API in writing at least seven (7) days prior to the\ndisclosure.\n(b) Employee further agrees that he will not contact any employees or business associates of API, including but not limited to field\nrepresentatives, independent sales representatives, or present or past customers of API, concerning his employment, the cessation of his\nemployment, or any information contained within this Agreement.\n(c) If asked about the terms of any severance, Employee agrees that he will decline comment and will make no comments or physical\ngestures indicating that he has recovered monetary sums from API. Employee also agrees that he has not (i) disclosed his efforts to seek\nadditional severance or money with any current or former API employee, (ii) disclosed legal theories or allegations of discrimination or\nwrongdoing by API with any current or former API employee, or (iii) talked to or encouraged any current or former API employee about filing\na lawsuit, cause of action or claim against API.\n(d) Employee hereby agrees and declares that he, his agents, and anyone else he has told have not and will not violate any of the\nconditions of this Section 9. Employee understands that a violation of this Section 9 would cause irreparable harm to API in an amount\nincapable of precise determination. Accordingly, Employee agrees that in the event he, his agent, or anyone he has told violates this Section9\nor any portion thereof, prior to the time Employee receives all of the payments set forth in Section 3 that are due to him, Employee will forfeit\nany right to any further payments. API shal be entitled to both temporary and permanent injunctive relief, without regard to any requirement\nfor the posting of a bond or any other security by API in connection therewith, in addition to any other form of legal and equitable relief\nprovided for in this Agreement or otherwise appropriate. Employee agrees that, in the event this provision is violated, the remainder of the\nAgreement shall remain in effect except that API will be relieved of any obligation to make further payment(s) set forth in Section 3.\n-6-\n10. Non-Disclosure/Return of Property/Non-Competition.\n(a) Employee agrees that the information he obtained as a result of his position with API was sensitive, private, and/or confidential\ninformation. Employee agrees not to use or disclose (directly or indirectly) confidential, sensitive, or proprietary information concerning API\nobtained by him during his employment with API. For purposes of this Agreement, "Proprietary Information" includes, without limitation, all\nmaterials and information (whether written or not) about API's current, prior, or prospective services or business activities, formulae, products,\nprocesses, research, plans, system designs, system applications, customers, affiliates, personnel, finances, purchasing, sales, marketing and\nmarkets, accounting, customer lists, business contracts, agreements, licenses, costs, pricing, profits, improvements, discoveries, software,\nbusiness methods and formulas, inventions, and other business aspects of API (including, but not limited to, information concerning, relating\nto, or arising out of relationships with customers, independent sales agents, lenders, investors or other business affiliates), which are not\ngenerally known and accessible to the public at large or which provide API with a competitive advantage. Employee hereby agrees that: (i) he\nhas kept and will keep all such information confidential; and (ii) he will not volunteer or disclose any such information to anyone without first\nobtaining express authorization to do so from the undersigned representative of API. Notwithstanding the foregoing, nothing in this Agreement\nshall be intended to limit Employee's ability to provide information to legal counsel for API or pursuant to a court order. Moreover, this\nSection 10 shall not encompass or apply to information which is in the public domain, which becomes part of the public domain through no\nact, omission, or fault of Employee.\n(b) By signing this Agreement, Employee agrees that he has not disclosed or used information in violation of this provision and that he\nwill not do so in the future. API does not intend to limit Employee in any way from seeking employment or conducting business so long as\nEmployee does not use or disclose the proprietary information covered by this Section 10 and so long as Employee does not violate any other\nprovision contained within this Agreement. Employee certifies and declares that he already has returned or shall return to the custody of API\nall Proprietary Information, company property (including without limitation any laptop computer, cellular telephone, and Blackberry or similar\ndevices) and Company Documents as well as any copies of Proprietary Information, company property, and Company Documents in his\npossession by the Separation Date. The phrase "Company Documents" is defined to include any writings, documents, contracts, records, files,\ntape recordings, correspondence, photographs, communications, summaries, data, notes, memoranda, diskettes, business plans, price books, or\nany other source containing information which relates to or references API and which was provided by API or obtained as a result of\nEmployee's relationship/employmen with API.\n(c) During the one (1) year period following the Separation Date (the "Restricted Period"), Employee will not, whether on Employee's\nown behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business\norganization, entity or enterprise whatsoever ("Person"), directly or indirectly:\n(i) engage in any business that competes with the businesses of API or its affiliates (including, without limitation, businesses which\nAPI or its affiliates have specific plans to conduct in the future and in connection with which API and/or its affiliates have expended\nmore than nominal time and/or capital and as to which plans Employee is aware) in any geographical area in which API or its affiliates\nproduces, manufactures, sells, leases, rents, licenses or otherwise provides its products or services, (a "Competitive Business");\n-7-\n(ii) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person)\nwho or which engages in a Competitive Business;\n(iii) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly,\nas\nan individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or\n(iv) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this\nAgreement) between API or any of its affiliates and customers, clients, contractors, managers, consultants, suppliers or investors of API\nor its affiliates.\n(d) Notwithstanding anything to the contrary in this Agreement, Employee may, directly or indirectly, own, solely as an investment,\nsecurities of any Person engaged a Competitive Business which are publicly traded on a national or regional stock exchange or on the over-the-\ncounter market if Employee (1) is not a controlling person of, or a member of a group which controls, such person and (2) does not, directly or\nindirectly, own 5% or more of any class of securities of such Person. Furthermore, nothing herein shall prevent Employee from remaining in\nthe electronics business and soliciting customers in the electronics industry so long as Employee is not participating in or soliciting on behalf\nof a Competing Business.\n(e) Employee will not make any legally impermissible statements or representations that disparage, demean, or impugn API, including\nwithout limitation any legally impermissible statements impugning the personal or professional character of any current or former director,\nofficer, or employee of API; and\n(f) During the one (1) year period following the Separation Date neither Employee nor any business in which Employee may engage or\nparticipate will (A) knowingly hire, solicit for hire or attempt to hire any employee of API, or (B) encourage\n-8-\nany employee of API to terminate such employment. For purposes of the Agreement, "Employee" means current employee as well as anyone\nemployed by API within the six (6) month period prior to the Separation Date; provided, that this provision shall not preclude Employee or any\nbusiness in which Employee may engage or participate from soliciting any such employee by means of or hiring any such employee who\nresponds to a public announcement placed by the business as long as Employee otherwise complies with the provisions of the Section 10(e).\n(g) Employee will not directly or indirectly seek to cause any person or organization to discontinue or limit its or their current\nrelationship with API.\n(h) Employee hereby agrees and declares that he, his agents, and anyone else he has told have not and will not violate any of the\nconditions of this Section 10. Employee understands that a violation of this Section 10 would cause irreparable harm to API in an amount\nincapable of precise determination. Accordingly, Employee agrees that in the event he, his agent, or anyone he has told violates this Section 10\nor\nany portion thereof, prior to the time Employee receives all of the payments set forth in Section 3 that are due to him, Employee will forfeit\nany right to any further payments. API shall be entitled to both temporary and permanent injunctive relief, without regard to any requirement\nfor the posting of a bond or any other security by API in connection therewith, in addition to any other form of legal and equitable relief\nprovided for in this Agreement or otherwise appropriate. Employee agrees that, in the event this provision is violated, the remainder of the\nAgreement shall remain in effect, except that API will be relieved of any obligation to make further payment(s) set forth in Section\n3.\n11. Successors. This Agreement shall apply to Employee, as well as to his heirs, executors, administrators, and agents. This Agreement also\nshall apply to, and inure to the benefit of API.\n12. Severability. The parties explicitly acknowledge and agree that the provisions of this Agreement are both reasonable and enforceable.\nHowever,\nthe\nprovisions\nof\nthis\nAgreement\nare\nseverable,\nand\nthe\ninvalidity\nof\nany\none\nor\nmore\nprovisions\nshall\nnot\naffect\nor\nlimit\nthe\nenforceability\nof the remaining provisions. Should any provision be held unenforceable for any reason, then such provision shall be enforced to the maximum\nextent permitted by law.\n13. Applicable Law. This Agreement shall be interpreted, enforced, and governed under the laws of the State of New York.\n14. Future Assistance. In partial exchange for the severance package, Employee agrees that he will cooperate and make himself reasonably\navailable to current API personnel in the event Employee's assistance is needed to locate, understand, or clarify work previously performed by\nEmployee or other work-related issues relating to Employee's employment. Employee also agrees that he will cooperate, assist, and make himself\nreasonably available to API personnel or API agents on an as-needed basis in order to respond to or address any complaint or issue raised by any\nperson or entity that does/did business with API or is/was associated with API in any way. Finally, Employee agrees that he will provide truthful and\n-9-\naccurate sworn testimony in the form of deposition, affidavit, and/or otherwise if requested by current API personnel. API will strive to keep\nthe\nneed for future assistance to a minimum, and will reimburse Employee for reasonable out-of-pocket expenses, including, without limitation, travel\nexpenses, incurred as a result of Employee's assistance, unless such remuneration would be inappropriate or otherwise prohibited under existing law.\n15. Nonwaiver. The waiver by API of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver\nof any subsequent breach by Employee.\n16. Jurisdiction. Any action regarding this Agreement or otherwise brought against API by Employee, Employee's agents, assigns, heirs,\nadministrators, or executors, or by his attorney, shall be maintained in a state or federal court in Suffolk County, New York. By signing this\nAgreement, Employee expressly consents to personal jurisdiction in New York. Both parties waive the right to a jury trial.\n17. Knowledge and Understanding. Employee acknowledges that neither Employee nor his agents have disclosed information in violation of\nSections 9 or 10 and will not do so in the future. Employee further acknowledges that, in accordance with the ADEA and in compliance with the\nOlder Workers Benefit Protection Act, Employee:\n(a) Has been, and is hereby, advised to consult with an attorney prior to executing this Agreement and has had the opportunity to do so;\n(b) Is receiving consideration under this Agreement which is grater in kind and amount than that to which Employee would otherwise be\nentitled;\n(c) Has been given a period of twenty-one (21) days within which to consider this Agreement, which allows Employee to make\na\nknowing, voluntary, and fully informed decision;\n(d) Has availed himself of all opportunities Employee deems necessary to make a voluntary, knowing, and fully informed decision; and\n(e) Is fully aware of his rights, and has carefully read and fully understands all provisions of this Agreement before signing.\n18. Effective Date. This Agreement may only be accepted during the twenty-one (21) day period after Employee receives this Agreement.\nIn\nthe event Employee executes this Agreement within the twenty-one (21) days following his receipt of this Agreement ("Twenty-One Day-Period"),\nhe\nshall have an additional period of seven (7) days to revoke the Agreement. Any revocation shall be in writing and addressed/delivered to the\nattention of API Electronics Group Corp. c/o Filtran Ltd., 229 Colonnade Road, Nepean, Ontario K2E 7K3, Attn: Chief Financial Officer. This\nAgreement shall not become effective, therefore, and none of the payments set forth in this Agreement shall become due until Employee has\nexecuted the Agreement and the seven-day revocation period has expired without revocation being exercised (the "Effective Date"), except that API\nshall continue Employee's current benefits under the Medical Plans and the Insurance Plans from the Separation Date until the Effective Date.\n-10-\n19. Complete Agreement. This Agreement sets forth the complete agreement between the parties relating to the subjects herein. Employee\nacknowledges and agrees that, in executing this Agreement, Employee does not rely and has not relied upon any representations or statements not set\nforth herein made by API with regard to the subject matter, basis, or effect of this Agreement or otherwise. Notwithstanding the foregoing, nothing\nin this Agreement is intended to nor shall limit, supersede, nullify, or affect any other duty or responsibility Employee may have or owe to API by\nvirtue of any separate agreement or obligation.\n20. Recitals. The recitals to this Agreement are hereby incorporated into this Agreement and made a part hereof.\n21. Affiliate. As used in this Agreement, an "affiliate" of a person shall mean any person controlling, controlled by or under common control\nwith such person.\n- Remainder of Page Intentionally Left Blank; Signature Page Follows -\n-11-\nBY SIGNING THIS RELEASE, I STATE THAT: I HAVE READ IT; I UNDERSTAND IT AND KNOW THAT I AM GIVING UP\nIMPORTANT RIGHTS; I AGREE TO ALL THE TERMS CONTAINED WITHIN THE AGREEMENT; I AM AWARE OF MY RIGHT\nTO CONSULT WITH AN ATTORNEY BEFORE SIGNING IT AND HAVE HAD THE OPPORTUNITY TO DO SO; I HAVE\nCONSULTED WITH MY ATTORNEY BEFORE SIGNING IT; I HAVE SIGNED IT KNOWINGLY AND VOLUNTARILY.\nAGREED TO BY:\n"Employee"\n"API"\nAPI NANOTRONICS CORP.\n/s/ Thomas W. Mills, Sr.\nBy:\n/s/ Stephen Pudles\nThomas W. Mills, Sr.\nPrinted Name: Stephen Pudles\nDated: 5/4/09\nIts:\nCEO\nDated:\n5-11-09\nAPI ELECTRONICS, INC.\nBy:\n/s/ Stephen Pudles\nPrinted Name: Stephen Pudles\nIts:\nCEO\nDated:\n5-11-09\n-12-	EX-10.1 2 dex101.htm AGREEMENT, GENERAL RELEASE AND CONFIDENTIALITY STATEMENT\nExhibit 10.1\nAGREEMENT, GENERAL RELEASE AND CONFIDENTIALITY STATEMENT\nThis AGREEMENT, GENERAL RELEASE AND CONFIDENTIALITY STATEMENT (this “Agreement”) is made and entered into as of the 11th day of\nMay, 2009, by and among API Nanotronics Corp., a Delaware corporation and API ELECTRONICS, INC., a Delaware corporation (collectively,\n“API”), and THOMAS W. MILLS, SR. (“Employee”).\nRECITALS:\nA. Employee’s employment with API will end effective March 19, 2009 (the “Separation Date”).\nB. Employee first received a copy of this Agreement on March 19, 2009 and received a copy of this version of the Agreement on April 28,\n2009.\nC. API enters into this Agreement based solely on Employee’s representation that this Agreement will resolve any and all claims Employee has\nor could have against API for any issue relating to his employment or the end of his employment with API and all affiliates of API and that\nEmployee has waived any right to pursue any lawsuit against API with respect to his employment, the separation of that employment, or any other\nissue that arose prior to his execution of this Agreement.\nD. In an effort to end the employment relationship on an amicable basis, and in consideration of the mutual covenants, promises, and\nobligations contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is mutually\nacknowledged, the Parties hereby agree as follows:\nAGREEMENT:\n1. Definition. Throughout this Agreement, the term “API” shall encompass the following:\n(a) API, as well as any division thereof, parent, subsidiary, affiliated entity, or related entity, predecessors, successors and assigns of any\nof the foregoing; and\n(b) Any current or former officer, director, trustee, agent, employee, shareholder, representative, insurer, or employee benefit or welfare\nprogram or plan (including administrators, trustees, fiduciaries, and insurers of such program or plan) of an entity referenced in or\nencompassed by Subparagraph 1(a).\n2. Resignations; Future Employment. Employee hereby resigns from his position as an officer of API, including without limitation, as\nPresident and Chief Operating Officer for API Nanotronics Corp., a member of API’s Board of Directors and all other officer positions and\ndirectorships he held with API, effective as of the Separation Date. All authority granted Employee by API shall be revoked as of the Separation\nDate. At API’s request, Employee shall execute any and all documents necessary to confirm Employee’s resignation from API. Employee’s\nemployment with API shall end on the Separation Date. Employee agrees that as a\ncondition of this Agreement, Employee will not seek reemployment with API at any time and should Employee apply in the future, his application\nfor employment will not be considered by API and will be null and void. Employee acknowledges that promptly after the Separation Date API is\nrequired to issue a press release announcing Employee’s resignation and promptly after the Effective Date API is required to issued a press release\nwith respect to this Agreement. Employee also acknowledges that API shall make such filings with the United States Securities and Exchange\nCommission with respect to Employee’s resignation and this Agreement as required by law and as it deems appropriate.\n3. Severance Payment and Other Consideration. API, in consideration for the promises contained herein, agrees as follows:\n(a) API will continue to pay Employee’s weekly salary of two thousand four hundred three and 85/100 ($2403.85) (less withholdings and\ndeductions required by law) for fifty-two (52) weekly pay periods (the “Severance Period”), payable to Employee via direct deposit on API’s\nregular paydays. Such payments shall begin within 14 days after the Effective Date. The payments due to Employee pursuant to this\nSection 3(a) cannot be offset by amounts due from Employee to API pursuant to any cause of action or claim, except as set forth in\nSection 9(d) and 10(h).\n(b) API and Employee agree that no amounts are due to Employee for accrued and unpaid vacation as of the Separation Date.\n(c) API will pay the monthly lease payments of $652.00 due under Employee’s car lease with Smithtown Motors Corp. for a period of\ntwelve months from the Separation Date.\n(d) From the Separation Date until the Effective Date, and during the Severance Period, API shall continue Employee’s coverage under\nits medical and dental plans (the “Medical Plans”) at the same benefit level Employee received immediately prior to the Separation Date.\nNotwithstanding the foregoing, in no event will API pay for or continue Employee’s coverage under the Medical Plans during the Severance\nPeriod if Employee becomes eligible for coverage under another group health plan. After the Severance Period, Employee will no longer be\ncovered by API’s Medical Plans. At that time, Employee will have any conversion rights available under the Medical Plans and as otherwise\nprovided by law, including the Comprehensive Omnibus Budget Reconciliation Act (“COBRA”). The period during which Employee will be\nentitled to continuation coverage under COBRA shall begin on the day after the Severance Period. If Employee elects to continue coverage\nunder the Medical Plans, Employee shall be responsible for the payment of premiums, as permitted by law. Employee agrees to immediately\nnotify API in writing, if Employee becomes eligible for such coverage under another group health plan. Such notice shall be given to API\nElectronics Group Corp. c/o Filtran Ltd., 229 Colonnade Road, Nepean, Ontario K2E 7K3, Attn: Chief Financial Officer.\n(e) From the Separation Date until the Effective Date, and during the Severance Period, API shall continue Employee’s coverage under\nits Short Term\n-2-\nDisability, Long Term Disability, Group Life Insurance and the Accidental Death and Dismemberment Plans (“Insurance Plans”). After the\nSeverance Period, Employee will have any conversion rights available under the Insurance Plans.\n(f) Employee shall not participate in the API Retirement Savings Plan after the Separation Date. Employee will be entitled to benefits\nearned and vested (if any) prior to the Separation Date pursuant to the applicable API Retirement Savings Plan provisions.\n(g) Employee will not be eligible for a bonus for the Fiscal Year 2009 or anytime thereafter, or any portion thereof.\nThe payments described in this Section 3 reflect consideration provided to Employee over and above anything of value to which Employee is\nalready entitled. In paying the amount specified in this Section 3, API makes no representation as to the tax consequences or liability arising\nfrom said payment. Moreover, the parties understand and agree that any tax consequences and/or liability arising from the payment to\nEmployee shall be the sole responsibility of Employee. To this extent, Employee acknowledges and agrees that he will pay any and all federal,\nstate and local income tax which may be determined to be due in connection with the payments described in this Section 3. Employee also\nagrees to indemnify API from all tax and/or other liability (including, but not limited to, fines, penalties, interest, and costs) arising from or\nrelating to the payment described in this Section 3 and/or imposed by the Internal Revenue Service, the State of New York, or any other taxing\nagency or tribunal as a result of API’s failure to withhold taxes on the payments described in this Section 3 or any portion thereof.\nEmployee acknowledges and agrees that the consideration and sums included in this Section 3 are the maximum sums ever to be due to\nEmployee from API, and he hereby relinquishes and waives any rights to other forms of payment or benefits under any other agreement\nbetween Employee and API, whether written, oral, express or implied.\n(h) Employee shall be entitled to keep desk, credenza and three matching chairs that formerly belonged to the former owner of Solid\nState Power. Employee shall arrange to pick-up said items, within seven (7) days of the Effective Date (as defined below)\n(i) API shall pay Employee $35,000 in full and complete satisfaction of all claims of Employee to shares of common stock of API or any\nother securities of API. Such amount shall be paid to employee by check and sent to Employee by API on the day following the Effective\nDate.\n4. General Release and Waiver from Employee. In consideration for the payments reflected in Section 3, Employee (for himself, his agents,\nassigns, heirs, executors, and administrators) hereby releases and discharges API from any claim, demand, action, or cause of action, known or\nunknown, which arose at any time from the beginning of time to the date Employee executes this Agreement, and waives all claims relating to,\narising out of, or in any\n-3-\nway connected with his employment with or termination of employment from API including, without limitation, any claim, demand, action, cause of\naction, including money damages and claims for attorneys’ fees, based on but not limited to:\n(a) The Age Discrimination in Employment Act of 1967, as amended (“ADEA”), 29 U.S .C. § 621, et seq.;\n(b) The Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.;\n(c) The Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701, et seq.;\n(d) The Family and Medical Leave Act of 1993, 29 U.S .C. § 2601, et seq.;\n(e) The Civil Rights Act of 1866 and 1964, as amended, 42 U.S .C. § 1981;\n(f) The Employee Retirement Security Act of 1973, 29 U.S .C. § 1001, et seq.;\n(g) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S .C. § 2000(e), et seq.;\n(h) The Fair Credit Reporting Act, 15 U.S .C. § 1681, et seq.;\n(i) The Fair Labor Standards Act, 29 U.S .C. § 201 et seq;\n(j) The New York Human Rights Law;\n(k) The New York Civil Rights Law;\n(l) The New York State Executive Law;\n(m) The New York City Administrative Code;\n(n) Any existing or potential entitlement under any API program or plan, including wages or other paid leave;\n(o) Any existing or potential agreement, contract, representation, policy, procedure, or statement (whether any of the foregoing are\nexpress or implied, oral or written);\n(p) Claims arising under any other federal, state or local fair employment practices law, disability benefits law, and any other employee\nor labor relations statute, executive order, law, ordinance, regulation or order and any duty or other employment-related obligation, including\nany claims arising from any other type of statute, executive order, law or ordinance,\n(q) Claims arising from contract or public policy, as well as tort, tortious cause of conduct, breach of contract, intentional infliction of\nemotional distress, negligence, discrimination, harassment, and retaliation, together with all claims for monetary and equitable relief, punitive\nand compensatory relief and attorneys’ fees and costs; and\n-4-\n(r) The New York Constitution and/or the United States Constitution.\nEmployee understands and agrees that he is releasing API from any and all claims by which he is giving up the opportunity to recover any\ncompensation, damages, or any other form of relief in any proceeding brought by Employee or on Employee’s behalf. Employee understands\nthat this release expressly includes all claims that could have been raised in a federal, state, county or local court and that this release also\nincludes all claims for attorneys’ fees and any other remedy that could have been sought in connection with any of the released claims.\nNotwithstanding the foregoing, this Agreement is not intended to operate as a waiver of any retirement or pension benefits that are vested, the\neligibility and entitlement to which shall be governed by the terms of the applicable plan. Nor shall this Agreement operate to waive or bar any\nclaim or right which - may not by operation of law or regulation be waived or barred.\n5. Release and Waiver from API. In consideration for the covenants and agreements of Employee set forth in this Agreement, API on behalf\nof itself and its affiliates, successors and assigns hereby releases and discharges Employee from any claim, demand, action, or cause of action,\nknown or unknown, which arose at any time from the beginning of time to the date Employee executes this Agreement, and waives all claims\nrelating to, arising out of, or in any way connected with Employee’s employment with or termination of employment from API, except that this\nrelease shall not include any claim, demand, action, or cause of action, known or unknown, arising out of any violation or alleged violation of law or\nany material violation or alleged material violation of a company policy of API or any of its affiliates, which arose at any time from the beginning of\ntime to the date Employee executes this Agreement.\n6. Mutual Disclaimer. Employee states under penalties of perjury that - at the time he executes this Agreement - Employee is not aware of any\nfacts or incidents of wrongdoing, liability, harassment, discrimination or retaliation by API from the beginning of time up to the date Employee signs\nthe Agreement. The parties further understand that the offer of severance creates no precedent for API in dealing with any future separations.\n7. No Other Claims Pending. Employee represents and warrants that, with the possible exception of a claim for unemployment\ncompensation, Employee has not filed or otherwise initiated any complaint, cause of action or claim against API based on events occurring prior to\nand including the date he executes this Agreement. Employee further represents and warrants that, as of the date he executes this Agreement,\nEmployee is unaware of any outstanding complaints, causes of action or claims against API that involve or relate in any way to Employee.\n8. Job References. Employee shall direct job references to API’s Corporate Director of Human Resources. Such references shall be limited to\nlast position held and dates of employment.\n-5-\n9. Confidentiality.\n(a) Employee recognizes and understands the importance of maintaining each and every term of this Agreement in a confidential manner,\nuntil such time as API is required to disclose such terms to the public (the “Disclosure Date”). Employee further understands that prior to the\nDisclosure Date confidentiality is a material and critical aspect of this Agreement and is of paramount concern to all involved. Until the\nDisclosure Date, Employee agrees as follows. Employee agrees to keep the terms of this Agreement confidential and will not disclose any\ninformation concerning it to anyone except his spouse, tax advisor, legal counsel, or anyone required by law to know the contents of the\nAgreement; provided, that Employee shall inform any of these specified persons that Employee is bound by a confidentiality covenant and\nprior to any such disclosure to any of such persons, require that such person agree to abide by the terms of such covenant and not disclose any\ninformation concerning the Agreement. Employee agrees that, in the event he is compelled by court order or process to disclose any terms of\nthis Agreement, Employee shall immediately notify the undersigned representative of API in writing at least seven (7) days prior to the\ndisclosure.\n(b) Employee further agrees that he will not contact any employees or business associates of API, including but not limited to field\nrepresentatives, independent sales representatives, or present or past customers of API, concerning his employment, the cessation of his\nemployment, or any information contained within this Agreement.\n(c) If asked about the terms of any severance, Employee agrees that he will decline comment and will make no comments or physical\ngestures indicating that he has recovered monetary sums from API. Employee also agrees that he has not (i) disclosed his efforts to seek\nadditional severance or money with any current or former API employee, (ii) disclosed legal theories or allegations of discrimination or\nwrongdoing by API with any current or former API employee, or (iii) talked to or encouraged any current or former API employee about filing\na lawsuit, cause of action or claim against API.\n(d) Employee hereby agrees and declares that he, his agents, and anyone else he has told have not and will not violate any of the\nconditions of this Section 9. Employee understands that a violation of this Section 9 would cause irreparable harm to API in an amount\nincapable of precise determination. Accordingly, Employee agrees that in the event he, his agent, or anyone he has told violates this Section9\nor any portion thereof, prior to the time Employee receives all of the payments set forth in Section 3 that are due to him, Employee will forfeit\nany right to any further payments. API shall be entitled to both temporary and permanent injunctive relief, without regard to any requirement\nfor the posting of a bond or any other security by API in connection therewith, in addition to any other form of legal and equitable relief\nprovided for in this Agreement or otherwise appropriate. Employee agrees that, in the event this provision is violated, the remainder of the\nAgreement shall remain in effect except that API will be relieved of any obligation to make further payment(s) set forth in Section 3.\n-6-\n10. Non-Disclosure/Return of Property/Non-Competition.\n(a) Employee agrees that the information he obtained as a result of his position with API was sensitive, private, and/or confidential\ninformation. Employee agrees not to use or disclose (directly or indirectly) confidential, sensitive, or proprietary information concerning API\nobtained by him during his employment with API. For purposes of this Agreement, “Proprietary Information” includes, without limitation, all\nmaterials and information (whether written or not) about API’s current, prior, or prospective services or business activities, formulae, products,\nprocesses, research, plans, system designs, system applications, customers, affiliates, personnel, finances, purchasing, sales, marketing and\nmarkets, accounting, customer lists, business contracts, agreements, licenses, costs, pricing, profits, improvements, discoveries, software,\nbusiness methods and formulas, inventions, and other business aspects of API (including, but not limited to, information concerning, relating\nto, or arising out of relationships with customers, independent sales agents, lenders, investors or other business affiliates), which are not\ngenerally known and accessible to the public at large or which provide API with a competitive advantage. Employee hereby agrees that: (i) he\nhas kept and will keep all such information confidential; and (ii) he will not volunteer or disclose any such information to anyone without first\nobtaining express authorization to do so from the undersigned representative of API. Notwithstanding the foregoing, nothing in this Agreement\nshall be intended to limit Employee’s ability to provide information to legal counsel for API or pursuant to a court order. Moreover, this\nSection 10 shall not encompass or apply to information which is in the public domain, which becomes part of the public domain through no\nact, omission, or fault of Employee.\n(b) By signing this Agreement, Employee agrees that he has not disclosed or used information in violation of this provision and that he\nwill not do so in the future. API does not intend to limit Employee in any way from seeking employment or conducting business so long as\nEmployee does not use or disclose the proprietary information covered by this Section 10 and so long as Employee does not violate any other\nprovision contained within this Agreement. Employee certifies and declares that he already has returned or shall return to the custody of API\nall Proprietary Information, company property (including without limitation any laptop computer, cellular telephone, and Blackberry or similar\ndevices) and Company Documents - as well as any copies of Proprietary Information, company property, and Company Documents - in his\npossession by the Separation Date. The phrase “Company Documents” is defined to include any writings, documents, contracts, records, files,\ntape recordings, correspondence, photographs, communications, summaries, data, notes, memoranda, diskettes, business plans, price books, or\nany other source containing information which relates to or references API and which was provided by API or obtained as a result of\nEmployee’s relationship/employment with API.\n(c) During the one (1) year period following the Separation Date (the “Restricted Period”), Employee will not, whether on Employee’s\nown behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business\norganization, entity or enterprise whatsoever (“Person”), directly or indirectly:\n(i) engage in any business that competes with the businesses of API or its affiliates (including, without limitation, businesses which\nAPI or its affiliates have specific plans to conduct in the future and in connection with which API and/or its affiliates have expended\nmore than nominal time and/or capital and as to which plans Employee is aware) in any geographical area in which API or its affiliates\nproduces, manufactures, sells, leases, rents, licenses or otherwise provides its products or services, (a “Competitive Business”);\n-7-\n(ii) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person)\nwho or which engages in a Competitive Business;\n(iii) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as\nan individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or\n(iv) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this\nAgreement) between API or any of its affiliates and customers, clients, contractors, managers, consultants, suppliers or investors of API\nor its affiliates.\n(d) Notwithstanding anything to the contrary in this Agreement, Employee may, directly or indirectly, own, solely as an investment,\nsecurities of any Person engaged a Competitive Business which are publicly traded on a national or regional stock exchange or on the over-the-\ncounter market if Employee (1) is not a controlling person of, or a member of a group which controls, such person and (2) does not, directly or\nindirectly, own 5% or more of any class of securities of such Person. Furthermore, nothing herein shall prevent Employee from remaining in\nthe electronics business and soliciting customers in the electronics industry so long as Employee is not participating in or soliciting on behalf\nof a Competing Business.\n(e) Employee will not make any legally impermissible statements or representations that disparage, demean, or impugn API, including\nwithout limitation any legally impermissible statements impugning the personal or professional character of any current or former director,\nofficer, or employee of API; and\n(f) During the one (1) year period following the Separation Date neither Employee nor any business in which Employee may engage or\nparticipate will (A) knowingly hire, solicit for hire or attempt to hire any employee of API, or (B) encourage\n-8-\nany employee of API to terminate such employment. For purposes of the Agreement, “Employee” means current employee as well as anyone\nemployed by API within the six (6) month period prior to the Separation Date; provided, that this provision shall not preclude Employee or any\nbusiness in which Employee may engage or participate from soliciting any such employee by means of or hiring any such employee who\nresponds to a public announcement placed by the business as long as Employee otherwise complies with the provisions of the Section 10(e).\n(g) Employee will not directly or indirectly seek to cause any person or organization to discontinue or limit its or their current\nrelationship with API.\n(h) Employee hereby agrees and declares that he, his agents, and anyone else he has told have not and will not violate any of the\nconditions of this Section 10. Employee understands that a violation of this Section 10 would cause irreparable harm to API in an amount\nincapable of precise determination. Accordingly, Employee agrees that in the event he, his agent, or anyone he has told violates this Section 10\nor any portion thereof, prior to the time Employee receives all of the payments set forth in Section 3 that are due to him, Employee will forfeit\nany right to any further payments. API shall be entitled to both temporary and permanent injunctive relief, without regard to any requirement\nfor the posting of a bond or any other security by API in connection therewith, in addition to any other form of legal and equitable relief\nprovided for in this Agreement or otherwise appropriate. Employee agrees that, in the event this provision is violated, the remainder of the\nAgreement shall remain in effect, except that API will be relieved of any obligation to make further payment(s) set forth in Section 3.\n11. Successors. This Agreement shall apply to Employee, as well as to his heirs, executors, administrators, and agents. This Agreement also\nshall apply to, and inure to the benefit of API.\n12. Severability. The parties explicitly acknowledge and agree that the provisions of this Agreement are both reasonable and enforceable.\nHowever, the provisions of this Agreement are severable, and the invalidity of any one or more provisions shall not affect or limit the enforceability\nof the remaining provisions. Should any provision be held unenforceable for any reason, then such provision shall be enforced to the maximum\nextent permitted by law.\n13. Applicable Law. This Agreement shall be interpreted, enforced, and governed under the laws of the State of New York.\n14. Future Assistance. In partial exchange for the severance package, Employee agrees that he will cooperate and make himself reasonably\navailable to current API personnel in the event Employee’s assistance is needed to locate, understand, or clarify work previously performed by\nEmployee or other work-related issues relating to Employee’s employment. Employee also agrees that he will cooperate, assist, and make himself\nreasonably available to API personnel or API agents on an as-needed basis in order to respond to or address any complaint or issue raised by any\nperson or entity that does/did business with API or is/was associated with API in any way. Finally, Employee agrees that he will provide truthful and\n-9-\naccurate sworn testimony in the form of deposition, affidavit, and/or otherwise if requested by current API personnel. API will strive to keep the\nneed for future assistance to a minimum, and will reimburse Employee for reasonable out-of-pocket expenses, including, without limitation, travel\nexpenses, incurred as a result of Employee’s assistance, unless such remuneration would be inappropriate or otherwise prohibited under existing law.\n15. Nonwaiver. The waiver by API of a breach of any provision of this Agreement by Employee shall not operate or be construed as a waiver\nof any subsequent breach by Employee.\n16. Jurisdiction. Any action regarding this Agreement or otherwise brought against API by Employee, Employee’s agents, assigns, heirs,\nadministrators, or executors, or by his attorney, shall be maintained in a state or federal court in Suffolk County, New York. By signing this\nAgreement, Employee expressly consents to personal jurisdiction in New York. Both parties waive the right to a jury trial.\n17. Knowledge and Understanding. Employee acknowledges that neither Employee nor his agents have disclosed information in violation of\nSections 9 or 10 and will not do so in the future. Employee further acknowledges that, in accordance with the ADEA and in compliance with the\nOlder Workers Benefit Protection Act, Employee:\n(a) Has been, and is hereby, advised to consult with an attorney prior to executing this Agreement and has had the opportunity to do so;\n(b) Is receiving consideration under this Agreement which is grater in kind and amount than that to which Employee would otherwise be\nentitled;\n(c) Has been given a period of twenty-one (21) days within which to consider this Agreement, which allows Employee to make a\nknowing, voluntary, and fully informed decision;\n(d) Has availed himself of all opportunities Employee deems necessary to make a voluntary, knowing, and fully informed decision; and\n(e) Is fully aware of his rights, and has carefully read and fully understands all provisions of this Agreement before signing.\n18. Effective Date. This Agreement may only be accepted during the twenty-one (21) day period after Employee receives this Agreement. In\nthe event Employee executes this Agreement within the twenty-one (21) days following his receipt of this Agreement (“Twenty-One Day-Period”),\nhe shall have an additional period of seven (7) days to revoke the Agreement. Any revocation shall be in writing and addressed/delivered to the\nattention of API Electronics Group Corp. c/o Filtran Ltd., 229 Colonnade Road, Nepean, Ontario K2E 7K3, Attn: Chief Financial Officer. This\nAgreement shall not become effective, therefore, and none of the payments set forth in this Agreement shall become due until Employee has\nexecuted the Agreement and the seven-day revocation period has expired without revocation being exercised (the “Effective Date”), except that API\nshall continue Employee’s current benefits under the Medical Plans and the Insurance Plans from the Separation Date until the Effective Date.\n- 10-\n19. Complete Agreement. This Agreement sets forth the complete agreement between the parties relating to the subjects herein. Employee\nacknowledges and agrees that, in executing this Agreement, Employee does not rely and has not relied upon any representations or statements not set\nforth herein made by API with regard to the subject matter, basis, or effect of this Agreement or otherwise. Notwithstanding the foregoing, nothing\nin this Agreement is intended to nor shall limit, supersede, nullify, or affect any other duty or responsibility Employee may have or owe to API by\nvirtue of any separate agreement or obligation.\n20. Recitals. The recitals to this Agreement are hereby incorporated into this Agreement and made a part hereof.\n21. Affiliate. As used in this Agreement, an “affiliate” of a person shall mean any person controlling, controlled by or under common control\nwith such person.\n- Remainder of Page Intentionally Left Blank; Signature Page Follows -\n-11 -\nBY SIGNING THIS RELEASE, I STATE THAT: I HAVE READ IT; I UNDERSTAND IT AND KNOW THAT I AM GIVING UP\nIMPORTANT RIGHTS; I AGREE TO ALL THE TERMS CONTAINED WITHIN THE AGREEMENT; I AM AWARE OF MY RIGHT\nTO CONSULT WITH AN ATTORNEY BEFORE SIGNING IT AND HAVE HAD THE OPPORTUNITY TO DO SO; I HAVE\nCONSULTED WITH MY ATTORNEY BEFORE SIGNING IT; I HAVE SIGNED IT KNOWINGLY AND VOLUNTARILY.\nAGREED TO BY:\n“Employee”\n“API”\nAPI NANOTRONICS CORP.\n/s/ Thomas W. Mills, Sr.\nBy:\n/s/ Stephen Pudles\nThomas W. Mills, Sr.\nPrinted Name: Stephen Pudles\nDated: 5/4/09\nIts:\nCEO\nDated:\n5-11-09\nAPI ELECTRONICS, INC.\nBy:\n/s/ Stephen Pudles\nPrinted Name: Stephen Pudles\nIts:\nCEO\nDated:\n5-11-09\n- 12-
+99dcd3ce09b66f2e227179775677cca5.pdf	effective_date jurisdiction party term	EX-99.D(4) 12 dex99d4.htm MUTUAL NON-DISCLOSURE/CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nMUTUAL NON-DISCLOSURE/CONFIDENTIALITY AGREEMENT\nThis Mutual Non-Disclosure/Confidentiality Agreement is entered into on 2 September, 2004, by and between nStor Corporation, Inc. (“nStor”), a\nDelaware (USA) Corporation, and Xyratex Technology Limited, Langstone Technology Park, Langstone Road, Havant, Hampshire PO9 1SA a\ncompany incorporated in England (‘Xyratex’) (collectively the ‘Parties’) for the purpose of sharing technical, business and financial information to\nfoster potential mutually beneficial business relationships.\n1. Confidential Information. Confidential Information does not need to be marked as such and is defined as any and all technical, business\nfinancial and other information belonging to either party, including but not limited to products, descriptions, drawings, bills of material, assembly\ndrawings, compositions, business plans, financial information, trade secrets, know how, inventions, manufacturing techniques and processes,\nmarketing and sales processes and techniques, customer lists, price lists, suppliers, current and future product developments.\nConfidential Information shall not include information, technical data or knowledge which:\na.\nis already known to the Receiving Party;\nb. is or becomes publicly known through no wrongful act of the Receiving Party;\nc.\nis rightfully received from a third party without restrictions and without breach of this Agreement;\nd. is independently developed by the Receiving Party;\ne.\nis approved for release by written authorization of the disclosing party; or\nf. if orally disclosed by one party to the other and within thirty (30) days after the oral disclosure, the disclosing party does not so identify\nit in writing as Confidential Information. Neither party will disclose to third parties or fail to treat as Confidential Information any\ninformation received orally from the disclosing party unless the disclosing party fails for thirty (30) days after such disclosure to identify\nthe information disclosed as being confidential or proprietary.\n2. Term. This Agreement shall commence when executed and continue for a period of one (1) year. The Parties agree that from the date of first\nreceipt, and for a period of three (3) years following the last disclosure of Confidential Information, the party receiving the Confidential Information\n(the “Receiving Party”) shall not disclose the Confidential Information to any other person, or entity, or use for its own benefit except as provided in\nthis Agreement and shall use the same degree of care to avoid publication or dissemination of such information as it does for its own confidential\ninformation which it does not desire to have published or disseminated. These efforts shall specifically include document control measures, such as\nnumbered copies and sign out logs, and imposing on all employees, agents and other representatives of the Receiving Party restrictions at least as\nstrict as required by this Agreement.\n3. Marking. All information disclosed under this Agreement is deemed Confidential Information whether or not it is so marked. It is the intent of the\nParties to mark information as confidential and/or proprietary prior to release to the Receiving Party. However, such markings may be overlooked\nand or disclosed verbally or visually and shall not diminish the value of its confidentiality.\n4. Return of Confidential Information. All Confidential Information and any copies and extracts thereof shall be promptly returned to the\ndisclosing party or at any time within thirty (30) days of receipt of a written request by the disclosing party for the return of such Confidential\nInformation. If authorized by the disclosing party, such Confidential Information may be destroyed by the Receiving Party if such destruction is\ncertified by the Receiving Party to the satisfaction of the disclosing party.\n5. No License Granted. Nothing contained in this Agreement shall be construed as granting or conferring any rights by license, express, implied or\notherwise, for any information, discovery or improvements made, conceived, or acquired after the date of this Agreement, or for any invention,\ndiscovery, or improvement made, conceived, or acquired after the date of this Agreement, or for any invention, discovery, or improvement made,\nconceived or acquired prior to the date of this Agreement.\n6. Limitation on Use and Disclosure of Confidential Information. Confidential Information shall be used solely for the purpose of sharing\ntechnical, business and financial information to foster potential mutually beneficial business relationships.\n(a) Confidential Information shall not be copied or reproduced by the Receiving Party, except for such copies as may be reasonably required\nfor accomplishment of the purposes stated herein;\n(b) Confidential Information shall be disclosed only to employees, agents, and other parties of the Receiving Party who have a “need to\nknow” in connection with the purposes stated herein; and\n(c) This Agreement shall not restrict the disclosure or use of information that:\n(i) was in the public domain at the time of disclosure or thereafter enters the public domain through no breach of this\nAgreement by the Receiving Party;\n(ii) was, at the time of the receipt by the Receiving Party, otherwise known to the Receiving Party without restrictions as to the\nuse or disclosure;\n(iii) becomes known to the Receiving Party from a source other than the disclosing party without breach of this Agreement by\nthe Receiving Party; or\n(iv) is developed independently by the Receiving Party and without reliance upon the Confidential Information disclosed\nherein.\n7. Trading Limitations. The Parties’ will comply with any applicable United States securities laws.\n8. Arbitration and Equitable Relief.\n(a) Arbitration. Except as provided herein, the Parties agree that any dispute or controversy arising out of or relating to any interpretation,\nconstruction, performance or breach of this Agreement shall be settled by arbitration to be held in San Diego County, California, USA in\naccordance with the Commercial Arbitration Rules then in effect for the American Arbitration Association. The arbitrator may grant\ninjunctions or other relief in such dispute or controversy. In the event of arbitration, the Parties may undertake a reasonable amount of\ndiscovery. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgement may be entered\non the arbitrator’s decision in any court having jurisdiction.\n(b) Equitable Remedies. The Parties agree that it would be impossible or inadequate to measure and calculate damages from any breach of\nthe covenants set forth herein. Accordingly, the Parties agree that if in the event of a breach of the covenants contained in this\nAgreement, the affected party will have available, in addition to any other right or remedy available, the right to obtain an injunction\nfrom a court of competent jurisdiction restraining such breach or threatened breach and to specify performance of any such provision of\nthe Agreement. The Parties further agree that no bond or other security shall be required in obtaining such equitable relief and the Parties\nhereby consent to the issuance of such injunction and to the ordering of specific performance.\n9. Legal Expenses. If any action or proceeding is brought for enforcement of this Agreement, or because of an alleged or actual dispute, breach,\ndefault, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party shall be entitled to\nrecover reasonable attorney’s fees and other costs incurred in such action or proceeding in addition to any other relief to which it may be entitled.\n10. General Provisions.\n(a) Governing Law. This Agreement shall be governed by the laws of the United States of America, State of California.\n(b) Severability. If one or more of the provisions in this Agreement is deemed void by law, then the remaining provisions will continue in\nfull force and effect.\n(c) Successor and Assigns. This Agreement will be binding upon the successors and/or assignees of the Parties.\n(d) Headings. All headings used herein are intended for reference purposes only and shall not affect the interpretation or validity of this\nAgreement.\n11. Obligations. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party has an\nobligation under this Agreement to offer for sale or license products using or incorporating the Confidential Information. Either party may, at its sole\ndiscretion, offer products for sale or license using its own information but not the Confidential Information of the other and may modify or\ndiscontinue sales at\n2\nany time. This Agreement shall not constitute, create, give effect to, or otherwise imply a joint venture, pooling arrangement, partnership, or formal\nbusiness organization of any kind, nor shall it constitute, create, give effect to, or otherwise imply an obligation or commitment on the part of either\nparty to submit a proposal to or perform a contract with the other party. Nothing herein shall be construed as providing for the sharing of profits or\nlosses arising out of the efforts of either or both parties. Neither party will be liable to the other party for any costs, expense, risks, or liabilities\narising out of the other party’s efforts in connection with this Agreement.\n12. Entire Understanding. This Agreement contains the entire understanding between the Parties concerning the subject matter hereof, superseding\nall prior contemporaneous communications, agreements and understandings between the Parties with respect to the disclosure and protection of\nConfidential Information. The rights and obligations of the Parties shall be limited to those expressly set forth herein.\nnStor Corporation, Inc.\nXyratex Technology Limited\n/s/ Steve Aleshire\n/s/ Matt Cornell\nAuthorized Signature\nAuthorized Signature\nMatt Cornell\nSteve Aleshire\nPrint Name\nPrint Name\nExecutive VP – Storage Systems\nCOO\nTitle\nTitle\nSeptember 3, 2004\n9/3/04\nDate\nDate\n3	EX-99.D(4) 12 dex99d4.htm MUTUAL NON-DISCLOSURE/CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nMUTUAL NON-DISCLOSURE/CONFIDENTIALITY AGREEMENT\nThis Mutual Non-Disclosure/Confidentiality Agreement is entered into on 2 September, 2004, by and between nStor Corporation, Inc. (“nStor”), a\nDelaware (USA) Corporation, and Xyratex Technology Limited, Langstone Technology Park, Langstone Road, Havant, Hampshire PO9 1SA a\ncompany incorporated in England (‘Xyratex’) (collectively the ‘Parties’) for the purpose of sharing technical, business and financial information to\nfoster potential mutually beneficial business relationships.\n1. Confidential Information. Confidential Information does not need to be marked as such and is defined as any and all technical, business\nfinancial and other information belonging to either party, including but not limited to products, descriptions, drawings, bills of material, assembly\ndrawings, compositions, business plans, financial information, trade secrets, know how, inventions, manufacturing techniques and processes,\nmarketing and sales processes and techniques, customer lists, price lists, suppliers, current and future product developments.\nConfidential Information shall not include information, technical data or knowledge which:\nis already known to the Receiving Party;\na\nb.  is or becomes publicly known through no wrongful act of the Receiving Party;\nc.  isrightfully received from a third party without restrictions and without breach of this Agreement;\nd.  is independently developed by the Receiving Party;\ne.  is approved for release by written authorization of the disclosing party; or\nf. if orally disclosed by one party to the other and within thirty (30) days after the oral disclosure, the disclosing party does not so identify\n \nit in writing as Confidential Information. Neither party will disclose to third parties or fail to treat as Confidential Information any\ninformation received orally from the disclosing party unless the disclosing party fails for thirty (30) days after such disclosure to identify\nthe information disclosed as being confidential or proprietary.\n2. Term. This Agreement shall commence when executed and continue for a period of one (1) year. The Parties agree that from the date of first\nreceipt, and for a period of three (3) years following the last disclosure of Confidential Information, the party receiving the Confidential Information\n(the “Receiving Party”) shall not disclose the Confidential Information to any other person, or entity, or use for its own benefit except as provided in\nthis Agreement and shall use the same degree of care to avoid publication or dissemination of such information as it does for its own confidential\ninformation which it does not desire to have published or disseminated. These efforts shall specifically include document control measures, such as\nnumbered copies and sign out logs, and imposing on all employees, agents and other representatives of the Receiving Party restrictions at least as\nstrict as required by this Agreement.\n3. Marking. All information disclosed under this Agreement is deemed Confidential Information whether or not it is so marked. It is the intent of the\nParties to mark information as confidential and/or proprietary prior to release to the Receiving Party. However, such markings may be overlooked\nand or disclosed verbally or visually and shall not diminish the value of its confidentiality.\n4. Return of Confidential Information. All Confidential Information and any copies and extracts thereof shall be promptly returned to the\ndisclosing party or at any time within thirty (30) days of receipt of a written request by the disclosing party for the return of such Confidential\nInformation. If authorized by the disclosing party, such Confidential Information may be destroyed by the Receiving Party if such destruction is\ncertified by the Receiving Party to the satisfaction of the disclosing party.\n5. No License Granted. Nothing contained in this Agreement shall be construed as granting or conferring any rights by license, express, implied or\notherwise, for any information, discovery or improvements made, conceived, or acquired after the date of this Agreement, or for any invention,\ndiscovery, or improvement made, conceived, or acquired after the date of this Agreement, or for any invention, discovery, or improvement made,\nconceived or acquired prior to the date of this Agreement.\n6. Limitation on Use and Disclosure of Confidential Information. Confidential Information shall be used solely for the purpose of sharing technical, business and financial information to foster potential mutually beneficial business relationships. (a)\n(b)\n()\nConfidential Information shall not be copied or reproduced by the Receiving Party, except for such copies as may be reasonably required\nfor accomplishment of the purposes stated herein;\nConfidential Information shall be disclosed only to employees, agents, and other parties of the Receiving Party who have a “need to\nknow” in connection with the purposes stated herein; and\nThis Agreement shall not restrict the disclosure or use of information that:\n(i) was in the public domain at the time of disclosure or thereafter enters the public domain through no breach of this\nAgreement by the Receiving Party;\n(ii) was, at the time of the receipt by the Receiving Party, otherwise known to the Receiving Party without restrictions as to the\nuse or disclosure;\n(iii) becomes known to the Receiving Party from a source other than the disclosing party without breach of this Agreement by\nthe Receiving Party; or\n(iv) is developed independently by the Receiving Party and without reliance upon the Confidential Information disclosed\nherein.\n7. Trading Limitations. The Parties’ will comply with any applicable United States securities laws. 8. Arbitration and Equitable Relief. (a)\n(b)\nArbitration. Except as provided herein, the Parties agree that any dispute or controversy arising out of or relating to any interpretation,\nconstruction, performance or breach of this Agreement shall be settled by arbitration to be held in San Diego County, California, USA in\naccordance with the Commercial Arbitration Rules then in effect for the American Arbitration Association. The arbitrator may grant\ninjunctions or other relief in such dispute or controversy. In the event of arbitration, the Parties may undertake a reasonable amount of\ndiscovery. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgement may be entered\non the arbitrator’s decision in any court having jurisdiction.\nEquitable Remedies. The Parties agree that it would be impossible or inadequate to measure and calculate damages from any breach of\nthe covenants set forth herein. Accordingly, the Parties agree that if in the event of a breach of the covenants contained in this\nAgreement, the affected party will have available, in addition to any other right or remedy available, the right to obtain an injunction\nfrom a court of competent jurisdiction restraining such breach or threatened breach and to specify performance of any such provision of\nthe Agreement. The Parties further agree that no bond or other security shall be required in obtaining such equitable relief and the Parties\nhereby consent to the issuance of such injunction and to the ordering of specific performance.\n9. Legal Expenses. If any action or proceeding is brought for enforcement of this Agreement, or because of an alleged or actual dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorney’s fees and other costs incurred in such action or proceeding in addition to any other relief to which it may be entitled. 10. General Provisions. (a)\n(b)\n()\n(d)\nGoverning Law. This Agreement shall be governed by the laws of the United States of America, State of California.\nSeverability. If one or more of the provisions in this Agreement is deemed void by law, then the remaining provisions will continue in\nfull force and effect.\nSuccessor and Assigns. This Agreement will be binding upon the successors and/or assignees of the Parties.\nHeadings. All headings used herein are intended for reference purposes only and shall not affect the interpretation or validity of this\nAgreement.\n11. Obligations. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party has an obligation under this Agreement to offer for sale or license products using or incorporating the Confidential Information. Either party may, at its sole discretion, offer products for sale or license using its own information but not the Confidential Information of the other and may modify or discontinue sales at\fany time. This Agreement shall not constitute, create, give effect to, or otherwise imply a joint venture, pooling arrangement, partnership, or formal\nbusiness organization of any kind, nor shall it constitute, create, give effect to, or otherwise imply an obligation or commitment on the part of either\nparty to submit a proposal to or perform a contract with the other party. Nothing herein shall be construed as providing for the sharing of profits or\nlosses arising out of the efforts of either or both parties. Neither party will be liable to the other party for any costs, expense, risks, or liabilities\narising out of the other party’s efforts in connection with this Agreement.\n12. Entire Understanding. This Agreement contains the entire understanding between the Parties concerning the subject matter hereof, superseding\nall prior contemporaneous communications, agreements and understandings between the Parties with respect to the disclosure and protection of\nConfidential Information. The rights and obligations of the Parties shall be limited to those expressly set forth herein.\nnStor Corporation, Inc. Xyratex Technology Limited\n/s/ Steve Aleshire /s/ Matt Cornell\nAuthorized Signature Authorized Signature\nMatt Cornell\nSteve Aleshire\nPrint Name Print Name\nExecutive VP — Storage Systems\nCOO\nTitle Title\nSeptember 3, 2004 9/3/04\nDate Date	EX-99.D(4) 12 dex99d4.htm MUTUAL NON-DISCLOSURE/CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nMUTUAL NON-DISCLOSURE/CONFIDENTIALITY AGREEMENT\nThis Mutual Non-Disclosure/Confidentiality Agreement is entered into on 2 September, 2004, by and between nStor Corporation, Inc. ("nStor"),\na\nDelaware (USA) Corporation, and Xyratex Technology Limited, Langstone Technology Park, Langstone Road, Havant, Hampshire PO9 1SA a\ncompany incorporated in England ('Xyratex') (collectively the 'Parties') for the purpose of sharing technical, business and financial information to\nfoster potential mutually beneficial business relationships.\n1.\nConfidential Information. Confidential Information does not need to be marked as such and is defined as any and all technical, business\nfinancial and other information belonging to either party, including but not limited to products, descriptions, drawings, bills of material, assembly\ndrawings, compositions, business plans, financial information, trade secrets, know how, inventions, manufacturing techniques and processes,\nmarketing and sales processes and techniques, customer lists, price lists, suppliers, current and future product developments.\nConfidential Information shall not include information, technical data or knowledge which:\na.\nis already known to the Receiving Party;\nb.\nis or becomes publicly known through no wrongful act of the Receiving Party;\nc.\nis rightfully received from a third party without restrictions and without breach of this Agreement;\nd.\nis independently developed by the Receiving Party;\ne.\nis approved for release by written authorization of the disclosing party; or\nf.\nif orally disclosed by one party to the other and within thirty (30) days after the oral disclosure, the disclosing party does not so identify\nit in writing as Confidential Information. Neither party will disclose to third parties or fail to treat as Confidential Information any\ninformation received orally from the disclosing party unless the disclosing party fails for thirty (30) days after such disclosure to identify\nthe information disclosed as being confidential or proprietary.\n2. Term. This Agreement shall commence when executed and continue for a period of one (1) year. The Parties agree that from the date of first\nreceipt, and for a period of three (3) years following the last disclosure of Confidential Information, the party receiving the Confidential Information\n(the "Receiving Party") shall not disclose the Confidential Information to any other person, or entity, or use for its own benefit except as provided in\nthis Agreement and shall use the same degree of care to avoid publication or dissemination of such information as it does for its own confidential\ninformation which it does not desire to have published or disseminated. These efforts shall specifically include document control measures, such\nas\nnumbered copies and sign out logs, and imposing on all employees, agents and other representatives of the Receiving Party restrictions at least as\nstrict as required by this Agreement.\n3. Marking. All information disclosed under this Agreement is deemed Confidential Information whether or not it is so marked. It is the intent of the\nParties to mark information as confidential and/or proprietary prior to release to the Receiving Party. However, such markings may be overlooked\nand or disclosed verbally or visually and shall not diminish the value of its confidentiality.\n4. Return of Confidential Information. All Confidential Information and any copies and extracts thereof shall be promptly returned to the\ndisclosing party or at any time within thirty (30) days of receipt of a written request by the disclosing party for the return of such Confidential\nInformation. If authorized by the disclosing party, such Confidential Information may be destroyed by the Receiving Party if such destruction is\ncertified by the Receiving Party to the satisfaction of the disclosing party.\n5. No License Granted. Nothing contained in this Agreement shall be construed as granting or conferring any rights by license, express, implied or\notherwise, for any information, discovery or improvements made, conceived, or acquired after the date of this Agreement, or for any invention,\ndiscovery, or improvement made, conceived, or acquired after the date of this Agreement, or for any invention, discovery, or improvement made,\nconceived or acquired prior to the date of this Agreement.\n6. Limitation on Use and Disclosure of Confidential Information. Confidential Information shall be used solely for the purpose of sharing\ntechnical, business and financial information to foster potential mutually beneficial business relationships.\n(a) Confidential Information shall not be copied or reproduced by the Receiving Party, except for such copies as may be reasonably required\nfor accomplishment of the purposes stated herein;\n(b)\nConfidential Information shall be disclosed only to employees, agents, and other parties of the Receiving Party who have a "need to\nknow" in connection with the purposes stated herein; and\n(c)\nThis Agreement shall not restrict the disclosure or use of information that:\n(i)\nwas in the public domain at the time of disclosure or thereafter enters the public domain through no breach of this\nAgreement by the Receiving Party;\n(ii)\nwas, at the time of the receipt by the Receiving Party, otherwise known to the Receiving Party without restrictions as to the\nuse or disclosure;\n(iii) becomes known to the Receiving Party from a source other than the disclosing party without breach of this Agreement by\nthe Receiving Party; or\n(iv)\nis developed independently by the Receiving Party and without reliance upon the Confidential Information disclosed\nherein.\n7. Trading Limitations The Parties' will comply with any applicable United States securities laws.\n8. Arbitration and Equitable Relief.\n(a) Arbitration. Except as provided herein, the Parties agree that any dispute or controversy arising out of or relating to any interpretation,\nconstruction, performance or breach of this Agreement shall be settled by arbitration to be held in San Diego County, California, USA in\naccordance with the Commercial Arbitration Rules then in effect for the American Arbitration Association. The arbitrator may grant\ninjunctions or other relief in such dispute or controversy. In the event of arbitration, the Parties may undertake a reasonable amount of\ndiscovery. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgement may be entered\non the arbitrator's decision in any court having jurisdiction.\n(b)\nEquitable Remedies. The Parties agree that it would be impossible or inadequate to measure and calculate damages from any breach of\nthe covenants set forth herein. Accordingly, the Parties agree that if in the event of a breach of the covenants contained in this\nAgreement, the affected party will have available, in addition to any other right or remedy available, the right to obtain an injunction\nfrom a court of competent jurisdiction restraining such breach or threatened breach and to specify performance of any such provision of\nthe Agreement. The Parties further agree that no bond or other security shall be required in obtaining such equitable relief and the Parties\nhereby consent to the issuance of such injunction and to the ordering of specific performance.\n9. Legal Expenses. If any action or proceeding is brought for enforcement of this Agreement, or because of an alleged or actual dispute, breach,\ndefault, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party shall be entitled to\nrecover reasonable attorney's fees and other costs incurred in such action or proceeding in addition to any other relief to which it may be entitled.\n10. General Provisions.\n(a)\nGoverning Law. This Agreement shall be governed by the laws of the United States of America, State of California.\n(b)\nSeverability. If one or more of the provisions in this Agreement is deemed void by law, then the remaining provisions will continue in\nfull force and effect.\n(c)\nSuccessor and Assigns. This Agreement will be binding upon the successors and/or assignees of the Parties.\n(d)\nHeadings. All headings used herein are intended for reference purposes only and shall not affect the interpretation or validity of this\nAgreement.\n11. Obligations. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party has an\nobligation under this Agreement to offer for sale or license products using or incorporating the Confidential Information. Either party may, at its sole\ndiscretion, offer products for sale or license using its own information but not the Confidential Information of the other and may modify or\ndiscontinue sales at\n2\nany time. This Agreement shall not constitute, create, give effect to, or otherwise imply a joint venture, pooling arrangement, partnership, or formal\nbusiness organization of any kind, nor shall it constitute, create, give effect to, or otherwise imply an obligation or commitment on the part of either\nparty to submit a proposal to or perform a contract with the other party. Nothing herein shall be construed as providing for the sharing of profits or\nlosses arising out of the efforts of either or both parties. Neither party will be liable to the other party for any costs, expense, risks, or liabilities\narising out of the other party's efforts in connection with this Agreement.\n12. Entire Understanding. This Agreement contains the entire understanding between the Parties concerning the subject matter hereof, superseding\nall prior contemporaneous communications, agreements and understandings between the Parties with respect to the disclosure and protection of\nConfidential Information. The rights and obligations of the Parties shall be limited to those expressly set forth herein.\nnStor Corporation, Inc.\nXyratex Technology Limited\n/s/ Steve Aleshire\n/s/ Matt Cornell\nAuthorized Signature\nAuthorized Signature\nMatt Cornell\nSteve Aleshire\nPrint Name\nPrint Name\nExecutive VP - Storage Systems\nCOO\nTitle\nTitle\nSeptember 3, 2004\n9/3/04\nDate\nDate\n3	EX-99.D(4) 12 dex99d4.htm MUTUAL NON-DISCLOSURE/CONFIDENTIALITY AGREEMENT\nExhibit (d)(4)\nMUTUAL NON-DISCLOSURE/CONFIDENTIALITY AGREEMENT\nThis Mutual Non-Disclosure/Confidentiality Agreement is entered into on 2 September, 2004, by and between nStor Corporation, Inc. (“nStor”), a\nDelaware (USA) Corporation, and Xyratex Technology Limited, Langstone Technology Park, Langstone Road, Havant, Hampshire PO9 1SA a\ncompany incorporated in England (‘Xyratex’) (collectively the ‘Parties’) for the purpose of sharing technical, business and financial information to\nfoster potential mutually beneficial business relationships.\n1. Confidential Information. Confidential Information does not need to be marked as such and is defined as any and all technical, business\nfinancial and other information belonging to either party, including but not limited to products, descriptions, drawings, bills of material, assembly\ndrawings, compositions, business plans, financial information, trade secrets, know how, inventions, manufacturing techniques and processes,\nmarketing and sales processes and techniques, customer lists, price lists, suppliers, current and future product developments.\nConfidential Information shall not include information, technical data or knowledge which:\na.\nis already known to the Receiving Party;\nb. is or becomes publicly known through no wrongful act of the Receiving Party;\nc.\nis rightfully received from a third party without restrictions and without breach of this Agreement;\nd. is independently developed by the Receiving Party;\ne.\nis approved for release by written authorization of the disclosing party; or\nf. if orally disclosed by one party to the other and within thirty (30) days after the oral disclosure, the disclosing party does not so identify\nit in writing as Confidential Information. Neither party will disclose to third parties or fail to treat as Confidential Information any\ninformation received orally from the disclosing party unless the disclosing party fails for thirty (30) days after such disclosure to identify\nthe information disclosed as being confidential or proprietary.\n2. Term. This Agreement shall commence when executed and continue for a period of one (1) year. The Parties agree that from the date of first\nreceipt, and for a period of three (3) years following the last disclosure of Confidential Information, the party receiving the Confidential Information\n(the “Receiving Party”) shall not disclose the Confidential Information to any other person, or entity, or use for its own benefit except as provided in\nthis Agreement and shall use the same degree of care to avoid publication or dissemination of such information as it does for its own confidential\ninformation which it does not desire to have published or disseminated. These efforts shall specifically include document control measures, such as\nnumbered copies and sign out logs, and imposing on all employees, agents and other representatives of the Receiving Party restrictions at least as\nstrict as required by this Agreement.\n3. Marking. All information disclosed under this Agreement is deemed Confidential Information whether or not it is so marked. It is the intent of the\nParties to mark information as confidential and/or proprietary prior to release to the Receiving Party. However, such markings may be overlooked\nand or disclosed verbally or visually and shall not diminish the value of its confidentiality.\n4. Return of Confidential Information. All Confidential Information and any copies and extracts thereof shall be promptly returned to the\ndisclosing party or at any time within thirty (30) days of receipt of a written request by the disclosing party for the return of such Confidential\nInformation. If authorized by the disclosing party, such Confidential Information may be destroyed by the Receiving Party if such destruction is\ncertified by the Receiving Party to the satisfaction of the disclosing party.\n5. No License Granted. Nothing contained in this Agreement shall be construed as granting or conferring any rights by license, express, implied or\notherwise, for any information, discovery or improvements made, conceived, or acquired after the date of this Agreement, or for any invention,\ndiscovery, or improvement made, conceived, or acquired after the date of this Agreement, or for any invention, discovery, or improvement made,\nconceived or acquired prior to the date of this Agreement.\n6. Limitation on Use and Disclosure of Confidential Information. Confidential Information shall be used solely for the purpose of sharing\ntechnical, business and financial information to foster potential mutually beneficial business relationships.\n(a) Confidential Information shall not be copied or reproduced by the Receiving Party, except for such copies as may be reasonably required\nfor accomplishment of the purposes stated herein;\n(b) Confidential Information shall be disclosed only to employees, agents, and other parties of the Receiving Party who have a “need to\nknow” in connection with the purposes stated herein; and\n(c) This Agreement shall not restrict the disclosure or use of information that:\n(i) was in the public domain at the time of disclosure or thereafter enters the public domain through no breach of this\nAgreement by the Receiving Party;\n(ii) was, at the time of the receipt by the Receiving Party, otherwise known to the Receiving Party without restrictions as to the\nuse or disclosure;\n(iii) becomes known to the Receiving Party from a source other than the disclosing party without breach of this Agreement by\nthe Receiving Party; or\n(iv) is developed independently by the Receiving Party and without reliance upon the Confidential Information disclosed\nherein.\n7. Trading Limitations. The Parties’ will comply with any applicable United States securities laws.\n8. Arbitration and Equitable Relief.\n(a) Arbitration. Except as provided herein, the Parties agree that any dispute or controversy arising out of or relating to any interpretation,\nconstruction, performance or breach of this Agreement shall be settled by arbitration to be held in San Diego County, California, USA in\naccordance with the Commercial Arbitration Rules then in effect for the American Arbitration Association. The arbitrator may grant\ninjunctions or other relief in such dispute or controversy. In the event of arbitration, the Parties may undertake a reasonable amount of\ndiscovery. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgement may be entered\non the arbitrator’s decision in any court having jurisdiction.\n(b) Equitable Remedies. The Parties agree that it would be impossible or inadequate to measure and calculate damages from any breach of\nthe covenants set forth herein. Accordingly, the Parties agree that if in the event of a breach of the covenants contained in this\nAgreement, the affected party will have available, in addition to any other right or remedy available, the right to obtain an injunction\nfrom a court of competent jurisdiction restraining such breach or threatened breach and to specify performance of any such provision of\nthe Agreement. The Parties further agree that no bond or other security shall be required in obtaining such equitable relief and the Parties\nhereby consent to the issuance of such injunction and to the ordering of specific performance.\n9. Legal Expenses. If any action or proceeding is brought for enforcement of this Agreement, or because of an alleged or actual dispute, breach,\ndefault, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party shall be entitled to\nrecover reasonable attorney’s fees and other costs incurred in such action or proceeding in addition to any other relief to which it may be entitled.\n10. General Provisions.\n(a) Governing Law. This Agreement shall be governed by the laws of the United States of America, State of California.\n(b) Severability. If one or more of the provisions in this Agreement is deemed void by law, then the remaining provisions will continue in\nfull force and effect.\n(c) Successor and Assigns. This Agreement will be binding upon the successors and/or assignees of the Parties.\n(d) Headings. All headings used herein are intended for reference purposes only and shall not affect the interpretation or validity of this\nAgreement.\n11. Obligations. Neither party has an obligation under this Agreement to purchase any service or item from the other party. Neither party has an\nobligation under this Agreement to offer for sale or license products using or incorporating the Confidential Information. Either party may, at its sole\ndiscretion, offer products for sale or license using its own information but not the Confidential Information of the other and may modify or\ndiscontinue sales at\n2\nany time. This Agreement shall not constitute, create, give effect to, or otherwise imply a joint venture, pooling arrangement, partnership, or formal\nbusiness organization of any kind, nor shall it constitute, create, give effect to, or otherwise imply an obligation or commitment on the part of either\nparty to submit a proposal to or perform a contract with the other party. Nothing herein shall be construed as providing for the sharing of profits or\nlosses arising out of the efforts of either or both parties. Neither party will be liable to the other party for any costs, expense, risks, or liabilities\narising out of the other party’s efforts in connection with this Agreement.\n12. Entire Understanding. This Agreement contains the entire understanding between the Parties concerning the subject matter hereof, superseding\nall prior contemporaneous communications, agreements and understandings between the Parties with respect to the disclosure and protection of\nConfidential Information. The rights and obligations of the Parties shall be limited to those expressly set forth herein.\nnStor Corporation, Inc.\nXyratex Technology Limited\n/s/ Steve Aleshire\n/s/ Matt Cornell\nAuthorized Signature\nAuthorized Signature\nMatt Cornell\nSteve Aleshire\nPrint Name\nPrint Name\nExecutive VP – Storage Systems\nCOO\nTitle\nTitle\nSeptember 3, 2004\n9/3/04\nDate\nDate\n3
+99dfb1027fcb9fe65c61777f264fdc88.pdf	effective_date jurisdiction party term	EX-10 .8 5 hpyexhibit108iandrysdaleno.htm CONFIDENTIALITY, NON-COMPETE AGREEMENT IAN DRYSDALE\nEMPLOYEE CONFIDENTIAL INFORMATION\nAND\nNONCOMPETITION AGREEMENT\nThis Employee Confidential Information and Noncompetition Agreement is made and entered into on\nthis 9th day of July, 2012, by and between Ian Drysdale, hereinafter “Employee,” and Heartland Payment\nSystems, Inc., a Delaware corporation (collectively with any and all current and future subsidiary and/or\naffiliate companies, the “Company”).\nWHEREAS, Employee has established an employment relationship with the Company and has\nreceived, and may continue to receive, certain benefits including stock grants and options; and\nWHEREAS, by reason of employment by the Company, Employee has received, and will continue to\nreceive, the value and advantage of confidential information and special training and skills, and the expert\nknowledge and experience of the contacts with other Company employees; and\nWHEREAS, the future granting of stock grants and options represents an advantage to Employee and\nwas conditioned upon Employee entering into this Agreement; and\nNOW THEREFORE, in exchange for good and valuable consideration, the sufficiency and receipt of\nwhich is hereby acknowledged, it is agreed as follows:\nSection 1. Scope of Agreement.\n(a)\nThis contract is not a contract of employment for any particular term. Employee's employment\nby the Company is at will, unless otherwise agreed by the Company and Employee in writing.\n(b)\nSeverance policies and procedures are as set forth in the Employee Policy Manual of the\nCompany; provided, that in the event of a conflict between this Agreement and the Employee Policy Manual,\nthis Agreement shall govern.\nSection 2. Severance and Bonuses.\n(a)\nIn consideration of the covenants by Employee contained below, in the event of a termination\nof Employee's employment by action of the Company other than for Cause or Disability, the Employee will\nreceive severance pay, in an amount equal to\n1\nthe base salary that would have been paid for a period of six (6) months payable in accordance with the\nCompany's regular payroll practices, plus medical benefits for such period, paid as if Employee were still\nemployed with Company; provided, that the Employee shall not be eligible to receive such severance pay\nunless such termination of employment occurs after the ninetieth (90th) day of the Employee's employment by\nthe Company. Medical benefit continuation during such severance period shall be counted against the benefit\ncontinuation period required under COBRA.\n(b)\nIn the event of a termination of Employee's employment by action of the Company other than\nfor Cause or in the event of termination of Employee's employment by death of Employee, the Employee (or is\ndesignee or next of kin, in the event of death of the employee) shall also be entitled to receive fifty percent\n(50%) of the pro rata portion (based on the number of days of Employee's employment during the fiscal quarter\nin which the Employee's employment is terminated) of any bonus payment that would have been payable to\nhim for that fiscal quarter if the Employee had been in the employ of the Company for the full fiscal quarter. If\nthe Employee's compensation arrangement did not contemplate a bonus payable on a quarterly basis, but\ninstead contemplated a bonus paid on some longer fiscal period (such as a half-year or full year), then fifty\npercent (50%) of the pro rata bonus shall be computed based on the number of days of Employee's employment\nduring such longer fiscal period in which the Employee's employment is terminated and the amount of the\nbonus payment that would have been payable to him for such longer fiscal period. No bonus will be payable to\nthe Employee with respect to any bonus period commencing after the bonus period in which the Employee's\nemployment terminated.\n(c) Cause. “Cause” means:\n(i)\nThe Employee has breached the provisions of Section 4, Section 5, Section 6, or Section\n7 of this Agreement in any material respect;\n(ii)\nThe Employee is enjoined by any judge, jury, arbitrator or other adjudicator from\nperforming one or more of the essential or material functions of Employee's job for the Company; or\n(iii)\nThe Employee has been convicted of, or plead guilty or no contest to, (A) fraud,\nmisappropriation or embezzlement in connection with the Company's business, or (B) a felony, and has\nfailed to submit a resignation in accordance with Section 2(d) below; or\n(iv)\nThe Employee has breached his or her duties hereunder or failed to perform his or her\nduties as an officer or employee of the Company, if such breach or failure has not been cured with thirty\n(30) days after receipt of written notice from the Company of such breach or failure.\n2\nNotwithstanding the foregoing, the Employee shall not be deemed to have been terminated for Cause\npursuant to clause (i) above unless and until there shall have been delivered to the Employee (A) a notice of\ntermination and (B) a copy of a resolution duly adopted by the Board of Directors of the Company finding that,\nafter reasonable notice to the Employee and an opportunity to be heard, in the good faith opinion of the Board\nof Directors of the Company, the Employee has engaged in conduct constituting Cause for termination\nhereunder.\n(c)\nDisability. “Disability” means any mental or physical condition that renders the Employee\nunable to perform the essential functions of his position, with or without reasonable accommodation, for a\nperiod in excess of six (6) months.\n(d)\nIf the Employee is ever convicted of, or pleads guilty or no contest to, any felony offense, then\nthe Employee shall immediately tender a resignation from each and every position the Employee then holds\nwith the Company (whether as officer, director, employee, consultant or otherwise).\nSection 3. Employees' Acknowledgments.\n(a)\nThe Employee understands and acknowledges that because of the confidential and sensitive\nnature of the information to which the Employee will have access during the course of his employment with the\nCompany, any unauthorized use, disclosure or misappropriation of such information will cause irreparable\ndamage to the Company.\n(b)\nThe Employee acknowledges that the Company has expended considerable resources to\ndevelop the confidential information and the relationships that the Company enjoys with its customers,\nsuppliers, employees, officers and other agents, and these assets of the Company are critical to the business of\nthe Company. The Employee agrees that the restrictions set forth below are necessary to prevent even the\ninadvertent disclosure of this confidential information or the interference with these relationships and to protect\nthe legitimate business interests of the Company and are reasonable in scope and content.\nSection 4. Protection of Information.\n(a)\nThe Employee hereby covenants with Company that, throughout the term of his employment\nby the Company, Employee will serve Company's best interests loyally and diligently. Throughout the course of\nemployment by Company and thereafter, Employee will not disclose to any person, firm, corporation or entity\n(except when expressly authorized in writing by Company) any information relating to Company's business,\nincluding, without limitation, merchant application processing and credit underwriting software, merchant\ninformation systems, sales compensation and sales force automation software and systems, electronic payment\ntransaction processing software,\n3\nfraud and risk analysis systems, human resources and time and attendance information systems and software,\npayroll services information systems and payroll application processing software, sales policy documents,\nmarketing communications materials, information relating to trade secrets, business methods, products,\nprocesses, procedures, development or experimental projects, suppliers, customer lists or the needs of\ncustomers or prospective customers, clients, etc., and will not use such information for his own purpose or for\nthe purpose of any person, firm, corporation or entity except the Company.\n(b)\nUpon termination of his employment with the Company, the Employee shall deliver promptly\nto the Company all records, manuals, books, blank forms, documents, letters, memoranda, notes, notebooks,\nreports, data, tables, calculations or copies thereof that relate in any way to the business, products, practices or\ntechniques of the Company, and all other property trade secrets and confidential information of the Company,\nincluding, but not limited to, all documents that in whole or in part contain any trade secrets or confidential\ninformation of the Company, which in any of these cases are in his possession or under his control.\nSection 5. Covenant Not to Compete.\n(a)\nDuring the Restricted Period (as defined below), Employee will not (i) directly or indirectly\nperform activities of the type conducted, authorized, offered, or provided to the Company within two years\nprior to termination for any business which markets, sells or is developing products or services which compete\nwith the products or services marketed, sold or being developed by the Company within two years of such\ntermination (such business being hereinafter sometimes called a “Competing Business”), in any territory in\nwhich Employee conducted business on behalf of the Company within one year of termination, or (ii) assist\nothers in engaging in any Competing Business in any manner described in the foregoing clause (i).\n(b)\nThe Employee understands that the foregoing restrictions may limit his ability to earn a\nlivelihood in a business competitive to the business of the Company, but he nevertheless believes that he has\nreceived and will receive sufficient consideration and other benefits in connection with the Company's issuance\nof certain stock and stock options to the Employee as well as other benefits to clearly justify such restrictions\nwhich, in any event (given his education, skills and ability), the Employee does not believe would prevent him\nfrom earning a living.\n(c)\n“Restricted Period” shall mean the period commencing on the date hereof and ending on the\nlast day of the sixth (6th) full calendar month following the Employee's termination for any reason whatsoever\nincluding but not limited to involuntary termination (with or without Cause) and/or voluntary termination. In\nthe event the enforceability of any of the terms of the Agreement shall be challenged in Court and Employee is\nnot enjoined from breaching any of the protective covenants, then if a\n4\ncourt of competent jurisdiction finds that the challenged protective covenant is enforceable, the time periods\nshall be deemed tolled upon the filing of the lawsuit challenging the enforceability of this Agreement until the\ndispute is finally resolved and all periods of appeal have expired.\nSection 6. Non Solicitation.\n(a)\nDuring the period commencing on the date hereof and ending on the last day of the twelfth\n(12th) full calendar month following the Employee's termination for any reason whatsoever including but not\nlimited to involuntary termination (with or without Cause) and/or voluntary termination, Employee hereby\ncovenants that he will not, directly or indirectly, solicit, entice or induce any Customer or Supplier (as defined\nbelow) of the Company to (i) become a Customer or Supplier of any other person or entity engaged in any\nbusiness activity that competes with any business conducted by the Company at any time during the period of\nEmployee's employment with the Company, or any business planned by the Company at any time during the\nperiod of Employee's employment with the Company or (ii) cease doing business with the Company, and\nEmployee agrees that he will not assist any person or entity in taking any action described in the foregoing\nclauses (i) and (ii). For purposes of this Section 6, (A) a “Customer” of the Company means any person,\ncorporation, partnership, trust, division, business unit, department or agency with whom Employee had\nMaterial Contact (as defined below) at the time of termination or within one year prior thereto; and (B) a\n“Supplier” of the Company means any person, corporation, partnership, trust, division, business unit,\ndepartment or agency with whom Employee had Material Contact (as defined below) at the time of termination\nor within one year prior thereto. Material Contact means the contact between Employee and each customer,\npotential customer, supplier, and/or potential supplier; (a) with whom or which Employee dealt on behalf of the\nCompany; (b) whose dealings with the Company were coordinated or supervised by Employee; (c) about whom\nEmployee obtained confidential information in the ordinary course of business as a result of Employee's\nassociation with the Company; or (d) who receives products or services authorized by the Company, the sale or\nprovision of which results or resulted in compensation, commissions or earnings for Employee within two years\nprior to the date of Employee's termination.\n(b)\nDuring the period commencing on the date hereof and ending on the last day of the twenty-\nfourth (24th) month following the Employee's termination for any reason whatsoever, including but not limited\nto involuntary termination (with or without Cause) and/or voluntary termination, the Employee will not,\ndirectly or indirectly, induce other employees of the Company to terminate their employment with the\nCompany or engage in any Competing Business.\nSection 7. Company Right to Inventions.\nThe Employee shall promptly disclose, grant and assign ownership to the\n5\nCompany for its sole use and benefit any and all inventions, improvements, technical information and\nsuggestions relating in any way to the business of the Company (whether patentable or not), which he may\ndevelop, acquire, conceive or reduce to practice while employed by the Company (whether or not during usual\nworking hours), together with all patent applications, letters patent, copyrights and reissues thereof that may at\nany time be granted for or upon any such invention, improvement or technical information. In connection\ntherewith:\n(a)\nThe Employee shall without charge, but at the expense of the Company, promptly at all times\nhereafter execute and deliver such applications, assignments, descriptions and other instruments as may be\nnecessary or proper in the opinion of the Company to vest title to any such inventions, improvements, technical\ninformation, patent applications, patents, copyrights or reissues thereof in the corporation and to enable it to\nobtain and maintain the entire right and title thereto throughout the world; and\n(b)\nThe Employee shall render to the Company at its expense (including a reasonable payment for\nthe time involved in case he is not then in its employ) all such assistance as it may require in the prosecution of\napplications for said patents, copyrights or reissues thereof, in the prosecution or defense of interferences which\nmay be declared involving any said applications, patents or copyrights and in any litigation in which the\nCompany may be involved relating to any such patents, inventions, improvements or technical information.\nSection 8. Remedies; Survival.\n(a)\nThe Employee acknowledges and understands that the provisions of this Agreement are of a\nspecial and unique nature, the loss of which cannot be accurately compensated for in damages by an action at\nlaw, and that the breach or threatened breach of the provisions of this Agreement would cause the Company\nirreparable harm. In the event of a breach or threatened breach by the Employee of the provisions in Section 4,\nSection 5, Section 6, or Section 7 hereof, the Company shall be entitled to but not limited to injunctive relief\nrestraining him from such breach without posting any bond. Nothing herein contained shall be construed as\nprohibiting the Company from pursuing any other additional or alternative remedies available for any breach or\nthreatened breach of this Agreement, including but not limited to monetary damages.\n(b)\nNotwithstanding anything contained in the Agreement to the contrary, the provisions of\nSection 4, Section 5, Section 6, Section 7 and this Section 8, shall survive the expiration or other termination of\nthis Agreement or employment of the Employee by the Company until by their terms, such provisions are no\nlonger operative.\nSection 9. Other Agreements: Prohibition Against Use of Trade Secrets of Others.\n(a)\nEmployee represents and warrants to the Company that, except for the\n6\nrestrictive covenants in the Separate Agreement with WorldPay set forth in Exhibit A attached hereto, he is not\nparty to any agreement or other arrangement with any other corporation, partnership or entity relating to\nnoncompetition with such entity or to non-disclosure of confidential and proprietary information of such entity\nor to other matters similar to the matters set forth in this Agreement.\n(b)\nEmployee represents, warrants and agrees that he can and will perform his duties for the\nCompany without the unauthorized use of any confidential and/or proprietary information of others.\nSection 10. General Provisions.\n(a)\nThis Agreement and any or all terms hereof may not be changed, waived, discharged, or\nterminated orally, but only by way of an instrument in writing executed by the Company and the Employee.\n(b)\nThis Agreement shall be governed by and construed in accordance with the laws of the State of\nNew Jersey without regard to legal principles pertaining to conflict of laws.\n(c)\nIt is the desire and intent of the parties hereto that the provisions of this Agreement shall be\nenforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in\nwhich enforcement is sought. Accordingly, to the extent that a restriction contained in this Agreement is more\nrestrictive than permitted by the laws of any jurisdiction where this Agreement may be subject to review and\ninterpretation, the terms of such restriction, for the purpose only of the operation of such restriction in such\njurisdiction, shall be the maximum restriction allowed by the laws of such jurisdiction and such restriction shall\nbe deemed to have been revised accordingly herein.\n(d)\nAny suit, action or proceeding arising out of or relating to this Agreement shall be brought\nonly in the Superior Court in the County of Mercer, New Jersey or the United States District Court for the\nDistrict of New Jersey, and Employee hereby agrees and consents to the personal and exclusive jurisdiction of\nsaid courts over him or her as to all suits, actions and proceedings arising out of or relating to this Agreement,\nand Employee further waives any claim that such suit, action or proceeding is brought in an improper or\ninconvenient forum.\n(e)\nIf any portion of this Agreement shall be found to be invalid or contrary to public policy, the\nsame may be modified or stricken by a Court of competent jurisdiction, to the extent necessary to allow the\nCourt to enforce such provision in a manner which is as consistent with the original intent of the provision as\npossible. The striking or modification by the Court of any provision shall not have the effect of invalidating the\nAgreement as a whole.\n7\n(f)\nThis Agreement constitutes the entire and exclusive agreement between Employee and\nCompany pertaining to the subject matter thereof, and supersedes and replaces any and all earlier confidential\ninformation, invention and noncompetition agreements between Company and Employee and representations\nand understandings of the parties with respect thereto, without extinguishing whatsoever rights heretofore\nacquired by Company under any previous agreements.\n(g)\nThe Company may assign any of its rights under this Agreement to any successor entity to the\nCompany, including, but not limited to, any entity formed by the Company to carry on the business of the\nCompany.\n[SIGNATURES APPEAR ON NEXT PAGE]\n8\nIN WITNESS WHEREOF, the Agreement has been executed as aforesaid.\nCOMPANY\nHEARTLAND PAYMENT SYSTEMS, INC.\nBy: /s/ Robert O. Carr\nName: Robert O. Carr\nTitle: Chief Executive Officer\nEMPLOYEE:\nBy: /s/ Ian Drysdale\nName: Ian Drysdale\n9\nEXHIBIT A\nOTHER AGREEMENTS\n[NONE]\n10	EX-10.8 5 hpyexhibit108iandrysdaleno.htm CONFIDENTIALITY, NON-COMPETE AGREEMENT IAN DRYSDALE\nEMPLOYEE CONFIDENTIAL INFORMATION\nAND\nNONCOMPETITION AGREEMENT\nThis Employee Confidential Information and Noncompetition Agreement is made and entered into on\nthis Sth day of July, 2012, by and between Ian Drysdale, hereinafter “Employee,” and Heartland Payment\nSystems, Inc., a Delaware corporation (collectively with any and all current and future subsidiary and/or\naffiliate companies, the “Company”).\nWHEREAS, Employee has established an employment relationship with the Company and has\nreceived, and may continue to receive, certain benefits including stock grants and options; and\nWHEREAS, by reason of employment by the Company, Employee has received, and will continue to\nreceive, the value and advantage of confidential information and special training and skills, and the expert\nknowledge and experience of the contacts with other Company employees; and\nWHEREAS, the future granting of stock grants and options represents an advantage to Employee and\nwas conditioned upon Employee entering into this Agreement; and\nNOW THEREFORE, in exchange for good and valuable consideration, the sufficiency and receipt of\nwhich is hereby acknowledged, it is agreed as follows:\nSection 1.  Scope of Agreement.\n(a) This contract is not a contract of employment for any particular term. Employee's employment\nby the Company is at will, unless otherwise agreed by the Company and Employee in writing.\n(b) Severance policies and procedures are as set forth in the Employee Policy Manual of the\nCompany; provided, that in the event of a conflict between this Agreement and the Employee Policy Manual,\nthis Agreement shall govern.\nSection 2.  Severance and Bonuses.\n(a) In consideration of the covenants by Employee contained below, in the event of a termination\nof Employee's employment by action of the Company other than for Cause or Disability, the Employee will\nreceive severance pay, in an amount equal to\nthe base salary that would have been paid for a period of six (6) months payable in accordance with the\nCompany's regular payroll practices, plus medical benefits for such period, paid as if Employee were still\nemployed with Company; provided, that the Employee shall not be eligible to receive such severance pay\nunless such termination of employment occurs after the ninetieth (90th) da%: of the Employee's employment by\nthe Company. Medical benefit continuation during such severance period shall be counted against the benefit\ncontinuation period required under COBRA.\n(b) In the event of a termination of Employee's employment by action of the Company other than\nfor Cause or in the event of termination of Employee's employment by death of Employee, the Employee (or is\ndesignee or next of kin, in the event of death of the employee) shall also be entitled to receive fifty percent\n(50%) of the pro rata portion (based on the number of days of Employee's employment during the fiscal quarter\nin which the Employee's employment is terminated) of any bonus payment that would have been payable to\nhim for that fiscal quarter if the Employee had been in the employ of the Corn]IJany for the full fiscal quarter. If\nthe Employee's compensation arrangement did not contemplate a bonus pafiab e on a quarterly basis, but\ninstead contemplated a bonus paid on some longer fiscal period (such as a half-year or full year), then fifty\npercent (50%) of the pro rata bonus shall be computed based on the number of days of Employee's employment\nduring such longer fiscal period in which the Employee's employment is terminated and the amount of the\nbonus payment that woulg have been payable to him for such longer fiscal period. No bonus will be payable to\nthe Employee with respect to any bonus period commencing after the bonus period in which the Employee's\nemployment terminated.\n(c) Cause. “Cause” means:\n(i) The Employee has breached the provisions of Section 4, Section 5, Section 6, or Section\n7 of this Agreement in any material respect;\n(ii) The Emplogee is enjoined by any judge, jury, arbitrator or other adjudicator from\nperforming one or more of the essential or material functions of Employee's job for the Company; or\n(iii) The Employee has been convicted of, or plead guilty or no contest to, (A) fraud,\nmisappropriation or embezzlement in connection with the Company's business, or (B) a felony, and has\nfailed to submit a resignation in accordance with Section 2(d) below; or\n(iv) The Employee has breached his or her duties hereunder or failed to perform his or her\nduties as an officer or employee of the Company, if such breach or failure has not been cured with thirty\n(30) days after receipt of written notice from the Company of such breach or failure.\nNotwithstanding the foregoing, the Employee shall not be deemed to have been terminated for Cause\npursuant to clause (i) above unless and until there shall have been delivered to the Employee (A) a notice of\ntermination and (B) a copy of a resolution duly adopted by the Board of Directors of the Company finding that,\nafter reasonable notice to the Employee and an opportunity to be heard, in the good faith opinion of the Board\nof Directors of the Company, the Employee has engaged in conduct constituting Cause for termination\nhereunder.\nC Disability. “Disability” means any mental or physical condition that renders the Employee\nunable to perform the essential functions of his position, with or without reasonable accommodation, for a\nperiod in excess of six (6) months.\n( If the Employee is ever convicted of, or pleads guilty or no contest to, any felony offense, then\nthe Employee shall immediately tender a resignation from each and every flosmon the Employee then holds\nwith the Company (whether as officer, director, employee, consultant or otherwise)\nSection 3. Employees' Acknowledgments.\n(a) The Employee understands and acknowledges that because of the confidential and sensitive\nnature of the information to which the Employee will have access during the course of his employment with the\nCompany, any unauthorized use, disclosure or misappropriation of such information will cause irreparable\ndamage to the Company.\n(b) The Employee acknowledges that the Company has expended considerable resources to\ndevelop the confidential information and the relationships that the Company enjoys with its customers,\nsuppliers, employees, officers and other agents, and these assets of the Company are critical to the business of\nthe Company. The Employee agrees that the restrictions set forth below are necessary to prevent even the\ninadvertent disclosure of this confidential information or the interference with these relationships and to protect\nthe legitimate business interests of the Company and are reasonable in scope and content.\nSection 4. Protection of Information.\n(a) The Employee hereby covenants with Company that, throughout the term of his employment\nby the Company, Employee will serve Company's best interests loyally and diligently. Throughout the course of\nemployment by Company and thereafter, Employee will not disclose to any person, tirm, corporation or entity\n(exce cIlJt when expressly authorized in writing by Company) any information relating to Company s business,\nincluding, without limitation, merchant application processing and credit underwriting software, merchant\ninformation systems, sales cornpensation and sales force automation software and systems, electronic payment\ntransaction processing software,\nfraud and risk analysis systems, human resources and time and attendance information systems and software,\npayroll services information systems and payroll application processing software, sales policy documents,\nmarketing communications materials, information relating to trade secrets, business methods, products,\nprocesses, procedures, development or experimental projects, suppliers, customer lists or the needs of\ncustomers or Ierospective customers, clients, etc., an wiJIl not use such information for his own purpose or for\nthe purpose of any person, firm, corporation or entity except the Company.\n(b) Upon termination of his employment with the Company, the Employee shall deliver promptly\nto the Company all records, manuals, books, blank forms, documents, letters, memoranda, notes, notebooks,\nreports, data, tables, calculations or copies thereof that relate in any way to the business, products, practices or\ntechniques of the Company, and all other property trade secrets and confidential information of the Company,\nincluding, but not limited to, all documents that in whole or in part contain any trade secrets or confidential\ninformation of the Company, which in any of these cases are in his possession or under his control.\nSection 5. Covenant Not to Compete.\n(@) During the Restricted Period (as defined below), Employee will not (i) directly or indirectly\nperform activities of the type conducted, authorized, offered, or provided to the Company within two years\nprior to termination for any business which markets, sells or is developing products or services which compete\nwith the products or services marketed, sold or being developed by the Company within two years of such\ntermination (such business being hereinafter sometimes called a “Competing Business™), in any territory in\nwhich Employee conducted business on behalf of the Company within one year of termination, or (ii) assist\nothers in engaging in any Competing Business in any manner described in tfie foregoing clause (i).\n(b) The Employee understands that the foregoing restrictions may limit his ability to earn a\nlivelihood in a business competitive to the business of the Company, but he nevertheless believes that he has\nreceived and will receive sufficient consideration and other benefits in connection with the Company's issuance\nof certain stock and stock o]Etions to the Employee as well as other benefits to clearly justify such restrictions\nwhich, in any event (given his education, skills and ability), the Employee does not gelieve would prevent him\nfrom earning a living.\n(© “Restricted Period” shall mean the period commencing on the date hereof and ending on the\nlast day of the sixth (6th) full calendar month following the Employee's termination for any reason whatsoever\nincluding but not limited to involuntary termination (with or without Cause) and/or voluntary termination. In\nthe event the enforceability of any of the terms of the Agreement shall be challenged in Court and Employee is\nnot enjoined from breaching any of the protective covenants, then if a\ncourt of competent ]]urisdiction finds that the challenged protective covenant is enforceable, the time periods\nshall be deemed tolled upon the filing of the lawsuit challenging the enforceability of this Agreement until the\ndispute is finally resolved and all periods of appeal have expired.\nSection 6. Non Solicitation.\n(a) During the period commencing on the date hereof and ending on the last day of the twelfth\n(12th) full calendar month following the Employee's termination for any reason whatsoever including but not\nlimited to involuntary termination (with or without Cause) and/or voluntary termination, Employee hereb\ncovenants that he will not, directly or indirectly, solicit, entice or induce any Customer or Supplier (as defined\nbelow) of the Company to (i) become a Customer or Supplier of any other person or entity engaged in any\nbusiness activity that competes with any business conducted by the Company at any time during the period of\nEmployee's employment with the Company, or any business p?;nned by the Company at any time during the\nperiod of Employee's employment with the Company or (ii) cease doing business with the Company, and\nEmployee agrees that he wil?fnot assist any person or entity in taking any action described in the foregoing\nclauses (i) and (ii). For purposes of this Section 6, (A) a “Customer” of the Company means any person,\ncorporation, partnership, trust, division, business unit, department or agency witllwJ whom Employee had\nMaterial Contact (as defined below) at the time of termination or within one year prior thereto; and (B) a\n“Supplier” of the Company means any person, corporation, partnership, trust, division, business unit,\ndepartment or agency with whom Employee had Material Contact (as defined below) at the time of termination\nor within one year prior thereto. Material Contact means the contact between Employee and each customer,\npotential customer, supplier, and/or potential supplier; (a) with whom or which Employee dealt on behalf of the\nCompany; (b) whose dealings with the Company were coordinated or supervised by Employee; (c) about whom\nEmployee obtained confidential information in the ordinary course of business as a resullz ng Employee's\nassociation with the Company; or (d) who receives products or services authorized by the Company, the sale or\nprovision of which results or resulted in compensation, commissions or earnings for Employee wit?w/in two years\nprior to the date of Employee's termination.\n(b) Durin% the period commencing on the date hereof and ending on the last day of the twenty-\nfourth (24th) month following the Employee's termination for any reason whatsoever, including but not limited\nto involuntary termination (with or without Cause) and/or voluntary termination, the Employee will not,\ndirectly or indirectly, induce other employees of the Company to terminate their employment with the\nCompany or engage in any Competing Business.\nSection 7. Company Right to Inventions.\nThe Employee shall promptly disclose, grant and assign ownership to the\nCompany for its sole use and benefit any and all inventions, improvements, technical information and\nsuggestions relating in any way to the business of the Company (whether patentable or not), which he may\ndevelop, acquire, conceive or reduce to practice while employed by the Company (whether or not during usual\nworking hours), together with all patent applications, letters patent, copyrights and reissues thereof that may at\nany time be granted for or upon any such invention, improvement or technical information. In connection\ntherewith:\n(a) The Employee shall without charge, but at the expense of the Company, promptly at all times\nhereafter execute and deliver such applications, assignments, descriptions and other instruments as may be\nnecessary or proper in the opinion of the Company to vest title to any such inventions, improvements, technical\ninformation, patent applications, patents, copyrights or reissues thereof in the corporation and to enable it to\nobtain and maintain the entire right and title thereto throughout the world; and\n(b) The Employee shall render to the Company at its expense (including a reasonable payment for\nthe time involved in case he is not then in its employ) all such assistance as it may require in the prosecution of\napplications for said patents, copyrights or reissues thereof, in the prosecution or defense of interferences which\nmay be declared involving any said applications, patents or copyrights and in any litigation in which the\nCompany may be involved re?fating to any such patents, inventions, improvements or technical information.\nSection 8. Remedies; Survival.\n(@) The Employee acknowledges and understands that the provisions of this Agreement are of a\nspecial and unique nature, the loss of which cannot be accurately compensated for in damages by an action at\nlaw, and that the breach or threatened breach of the provisions of this Agreement would cause the Company\nirreparable harm. In the event of a breach or threatened breach by the Employee of the provisions in Section 4,\nSection 5, Section 6, or Section 7 hereof, the Company shall be entitled to but not limited to injunctive relief\nrestraining him from such breach without posting any bond. Nothing herein contained shall be construed as\nprohibiting the Cornfpany from pursuing any other additional or alternative remedies available for any breach or\nthreatened breach of this Agreement, including but not limited to monetary damages.\n(b) Notwithstanding anything contained in the Agreement to the contrary, the provisions of\nSection 4, Section 5, Section 6, Section 7 and this Section 8, shall survive the expiration or other termination of\nthis Agreement or employment of the Employee by the Company until by their terms, such provisions are no\nlonger operative.\nSection 9. Other Agreements: Prohibition Against Use of Trade Secrets of Others.\n(@) Employee represents and warrants to the Company that, except for the\nrestrictive covenants in the Separate Agreement with WorldPay set forth in Exhibit A attached hereto, he is not\nparty to any agreement or other arrangement with any other corporation, partnership or entity relating to\nnoncompetition with such entity or to non-disclosure of confidential and proprietary information of such entity\nor to other matters similar to the matters set forth in this Agreement.\n(b) Employee represents, warrants and agrees that he can and will perform his duties for the\nCompany without the unauthorized use of any confidential and/or proprietary information of others.\nSection 10. General Provisions.\n(@) This Agreement and any or all terms hereof may not be changed, waived, discharged, or\nterminated orally, but only by way of an instrument in writing executed by the Company and the Employee.\n(b) This Agreement shall be governed by and construed in accordance with the laws of the State of\nNew Jersey without regard to legal principles pertaining to conflict of laws.\n© It is the desire and intent of the parties hereto that the provisions of this Agreement shall be\nenforced to the fullest extent permissible under the laws and public pollfcies applied in each jurisdiction in\nwhich enforcement is sou%ht. Accordingly, to the extent that a restriction contained in this Agreement is more\nrestrictive than Eermitted y the laws of any jurisdiction where this Agreement may be subject to review and\ninterpretation, the terms of such restriction, for the purpose only of the operation of such restriction in such\njurisdiction, shall be the maximum restriction allowed %y the laws of such jurisdiction and such restriction shall\ne deemed to have been revised accordingly herein.\n(d) Any suit, action or proceeding arising out of or relating to this Agreement shall be brought\nonly in the Superior Court in the County of Mercer, New Jersey or the United States District Court for the\nDistrict of New Jersey, and Employee hereby agrees and consents to the personal and exclusive jurisdiction of\nsaid courts over him or her as to afifsuits, actions and proceedings arising out of or relating to this Agreement,\nand Employee further waives any claim that such suit, action or proceeding is brought in an improper or\ninconvenient forum.\n(e) If any portion of this Agreement shall be found to be invalid or contrary to public policy, the\nsame may be modified or stricken by a Court of competent jurisdiction, to the extent necessary to allow the\nCourt to enforce such provision in a manner which is as consistent with the original intent of the provision as\npossible. The striking or modification by the Court of any provision shall not have the effect of invalidating the\nAgreement as a whole.\n® This Agreement constitutes the entire and exclusive agreement between Employee and\nCompany pertaining to the subject matter thereof, and supersedes and replaces any and all earlier confidential\ninformation, invention and noncompetition agreements between Company and Employee and representations\nand understandings of the parties with respect thereto, without extinguishing whatsoever rights heretofore\nacquired by Company under any previous agreements.\n() The Company may assign any of its rights under this Agreement to any successor entity to the\nCompany, including, but not limited to, any entity formed by the Company to carry on the business of the\nCompany.\n[SIGNATURES APPEAR ON NEXT PAGE]\nIN WITNESS WHEREOQF, the Agreement has been executed as aforesaid.\nCOMPANY\nHEARTLAND PAYMENT SYSTEMS, INC.\nBy: /s/ Robert O. Carr\nName: Robert O. Carr\nTitle: Chief Executive Officer\nEMPLOYEE:\nBy: /s/lan Drysdale\nName: Ian Drysdale\n9\nEXHIBIT A\nOTHER AGREEMENTS\n[NONE]\n10	EX-10.8 5 yexhibitlo8iandrysdaleno.htm CONFIDENTIALITY, NON-COMPETE AGREEMENT IAN DRYSDALE\nEMPLOYEE CONFIDENTIAL INFORMATION\nAND\nNONCOMPETITION AGREEMENT\nThis Employee Confidential Information and Noncompetition Agreement is made and entered into on\nthis 9th day of July, 2012, by and between Ian Drysdale, hereinafter "Employee," and Heartland Payment\nSystems, Inc., a Delaware corporation (collectively with any and all current and future subsidiary and/or\naffiliate companies, the "Company").\nWHEREAS, Employee has established an employment relationship with the Company and has\nreceived, and may continue to receive, certain benefits including stock grants and options; and\nWHEREAS, by reason of employment by the Company, Employee has received, and will continue to\nreceive, the value and advantage of confidential information and special training and skills, and the expert\nknowledge and experience of the contacts with other Company employees; and\nWHEREAS, the future granting of stock grants and options represents an advantage to Employee and\nwas conditioned upon Employee entering into this Agreement; and\nNOW THEREFORE, in exchange for good and valuable consideration, the sufficiency and receipt of\nwhich is hereby acknowledged, it is agreed as follows:\nSection 1.\nScope of Agreement.\n(a)\nThis contract is not a contract of employment for any particular term. Employee's employment\nby the Company is at will, unless otherwise agreed by the Company and Employee in writing.\n(b)\nSeverance policies and procedures are as set forth in the Employee Policy Manual of the\nCompany; provided, that in the event of a conflict between this Agreement and the Employee Policy Manual,\nthis Agreement shall govern.\nSection 2. Severance and Bonuses.\n(a)\nIn consideration of the covenants by Employee contained below, in the event of a termination\nof Employee's employment by action of the Company other than for Cause or Disability, the Employee will\nreceive severance pay, in an amount equal to\n1\nthe base salary that would have been paid for a period of six (6) months payable in accordance with the\nCompany's regular payroll practices, plus medical benefits for such period, paid as if Employee were still\nemployed with Company; provided, that the Employee shall not be eligible to receive such severance pay\nunless such termination of employment occurs after the ninetieth (90th) day of the Employee's employment\nby\nthe Company. Medical benefit continuation during such severance period shall be counted against the benefit\ncontinuation period required under COBRA.\n(b)\nIn the event of a termination of Employee's employment by action of the Company other than\nfor Cause or in the event of termination of Employee's employment by death of Employee, the Employee (or is\ndesignee or next of kin, in the event of death of the employee) shall also be entitled to receive fifty percent\n(50%) of the pro rata portion (based on the number of days of Employee's employment during the fiscal quarter\nin which the Employee's employment is terminated) of any bonus payment that would have been payable to\nhim for that fiscal quarter if the Employee had been in the employ of the Company for the full fiscal quarter. If\nthe Employee's compensation arrangement did not contemplate a bonus payable on a quarterly basis, but\ninstead contemplated a bonus paid on some longer fiscal period (such as a half-year or full year), then fifty\npercent\n(50%)\nof\nthe\npro\nrata\nbonus\nshall\nbe\ncomputed\nbased\non\nthe\nnumber\nof\ndays\nof\nEmployee's\nemployment\nduring such longer fiscal period in which the Employee's employment is terminated and the amount of the\nbonus payment that would have been payable to him for such longer fiscal period. No bonus will be payable to\nthe Employee with respect to any bonus period commencing after the bonus period in which the Employee's\nemployment terminated.\n(c)\nCause. "Cause" means:\n(i)\nThe Employee has breached the provisions of Section 4, Section 5, Section 6, or Section\n7 of this Agreement in any material respect;\n(ii)\nThe Employee is enjoined by any judge, jury, arbitrator or other adjudicator from\nperforming one or more of the essential or material functions of Employee's job for the Company; or\n(iii)\nThe Employee has been convicted of, or plead guilty or no contest to, (A) fraud,\nmisappropriation or embezzlement in connection with the Company's business, or (B) a felony, and has\nfailed to submit a resignation in accordance with Section 2(d) below; or\n(iv)\nThe Employee has breached his or her duties hereunder or failed to perform his or her\nduties as an officer or employee of the Company, if such breach or failure has not been cured with thirty\n(30) days after receipt of written notice from the Company of such breach or failure.\n2\nNotwithstanding the foregoing, the Employee shall not be deemed to have been terminated for Cause\npursuant to clause (i) above unless and until there shall have been delivered to the Employee (A) a notice of\ntermination and (B) a copy of a resolution duly adopted by the Board of Directors of the Company finding that,\nafter reasonable notice to the Employee and an opportunity to be heard, in the good faith opinion of the Board\nof Directors of the Company, the Employee has engaged in conduct constituting Cause for termination\nhereunder.\n(c)\nDisability. "Disability" means any mental or physical condition that renders the Employee\nunable to perform the essential functions of his position, with or without reasonable accommodation, for a\nperiod in excess of six (6) months.\n(d)\nIf the Employee is ever convicted of, or pleads guilty or no contest to, any felony offense, then\nthe Employee shall immediately tender a resignation from each and every position the Employee then holds\nwith the Company (whether as officer, director, employee, consultant or otherwise).\nSection 3.\nEmployees' Acknowledgments.\n(a)\nThe Employee understands and acknowledges that because of the confidential and sensitive\nnature of the information to which the Employee will have access during the course of his employment with the\nCompany, any unauthorized use, disclosure or misappropriation of such information will cause irreparable\ndamage to the Company.\n(b)\nThe Employee acknowledges that the Company has expended considerable resources to\ndevelop the confidential information and the relationships that the Company enjoys with its customers,\nsuppliers, employees, officers and other agents, and these assets of the Company are critical to the business of\nthe Company. The Employee agrees that the restrictions set forth below are necessary to prevent even the\ninadvertent disclosure of this confidential information or the interference with these relationships and to protect\nthe legitimate business interests of the Company and are reasonable in scope and content.\nSection 4.\nProtection of Information.\n(a)\nThe Employee hereby covenants with Company that, throughout the term of his employment\nby the Company, Employee will serve Company's best interests loyally and diligently. Throughout the course of\nemployment by Company and thereafter, Employee will not disclose to any person, firm, corporation or entity\n(except when expressly authorized in writing by Company) any information relating to Company's business,\nincluding, without limitation, merchant application processing and credit underwriting software, merchant\ninformation systems, sales compensation and sales force automation software and systems, electronic payment\ntransaction processing software,\n3\nfraud and risk analysis systems, human resources and time and attendance information systems and software,\npayroll services information systems and payroll application processing software, sales policy documents,\nmarketing communications materials, information relating to trade secrets, business methods, products,\nprocesses, procedures, development or experimental projects, suppliers, customer lists or the needs of\ncustomers or prospective customers, clients, etc., and will not use such information for his own purpose or for\nthe purpose of any person, firm, corporation or entity except the Company.\n(b)\nUpon termination of his employment with the Company, the Employee shall deliver promptly\nto the Company alf records, manuals, books, blank forms, documents, letters, memoranda, notes, notebooks,\nreports, data, tables, calculations or copies thereof that relate in any way to the business, products, practices or\ntechniques of the Company, and all other property trade secrets and confidential information of the Company,\nincluding, but not limited to, all documents that in whole or in part contain any trade secrets or confidential\ninformation of the Company, which in any of these cases are in his possession or under his control.\nSection 5.\nCovenant Not to Compete.\n(a)\nDuring the Restricted Period (as defined below), Employee will not (i) directly or indirectly\nperform activities of the type conducted, authorized, offered, or provided to the Company within two years\nprior to termination for any business which markets, sells or is developing products or services which compete\nwith the products or services marketed, sold or being developed by the Company within two years of such\ntermination (such business being hereinafter sometimes called a "Competing Business"), in any territory in\nwhich Employee conducted business on behalf of the Company within one year of termination, or (ii) assist\nothers in engaging in any Competing Business in any manner described in the foregoing clause (i).\n(b)\nThe Employee understands that the foregoing restrictions may limit his ability to earn a\nlivelihood in a business competitive to the business of the Company, but he nevertheless believes that he has\nreceived\nand\nwill\nreceive\nsufficient\nconsideration\nand\nother\nbenefits\nin\nconnection\nwith\nthe\nCompany's\nissuance\nof certain stock and stock options to the Employee as well as other benefits to clearly justify such restrictions\nwhich, in any event (given his education, skills and ability), the Employee does not believe would prevent him\nfrom earning a living.\n(c)\n"Restricted Period" shall mean the period commencing on the date hereof and ending on the\nlast day of the sixth (6th) full calendar month following the Employee's termination for any reason whatsoever\nincluding but not limited to involuntary termination (with or without Cause) and/or voluntary termination. In\nthe event the enforceability of any of the terms of the Agreement shall be challenged in Court and Employee is\nnot enjoined from breaching any of the protective covenants, then if a\n4\ncourt of competent jurisdiction finds that the challenged protective covenant is enforceable, the time periods\nshall be deemed tolled upon the filing of the lawsuit challenging the enforceability of this Agreement until the\ndispute is finally resolved and all periods of appeal have expired.\nSection 6.\nNon Solicitation.\n(a)\nDuring the period commencing on the date hereof and ending on the last day of the twelfth\n(12th) full calendar month following the Employee's termination for any reason whatsoever including but not\nlimited to involuntary termination (with or without Cause) and/or voluntary termination, Employee hereby\ncovenants\nthat\nhe\nwill\nnot,\ndirectly\nor\nindirectly,\nsolicit,\nentice\nor\ninduce\nany\nCustomer\nor\nSupplier\n(as\ndefined\nbelow) of the Company to (i) become a Customer or Supplier of any other person or entity engaged in any\nbusiness activity that competes with any business conducted by the Company at any time during the period of\nEmployee's employment with the Company, or any business planned by the Company at any time during the\nperiod of Employee's employment with the Company or (ii) cease doing business with the Company, and\nEmployee agrees that he will not assist any person or entity in taking any action described in the foregoing\nclauses (i) and (ii). For purposes of this Section 6, (A) a "Customer" of the Company means any person,\ncorporation, partnership, trust, division, business unit, department or agency with whom Employee had\nMaterial Contact (as defined below) at the time of termination or within one year prior thereto; and (B)\na\n"Supplier" of the Company means any person, corporation, partnership, trust, division, business unit,\ndepartment or agency with whom Employee had Material Contact (as defined below) at the time of termination\nor within one year prior thereto. Material Contact means the contact between Employee and each customer,\npotential customer, supplier, and/or potential supplier; (a) with whom or which Employee dealt on behalf of the\nCompany; (b) whose dealings with the Company were coordinated or supervised by Employee; (c) about whom\nEmployee obtained confidential information in the ordinary course of business as a result of Employee's\nassociation with the Company; or (d) who receives products or services authorized by the Company, the sale\nor\nprovision of which results or resulted in compensation, commissions or earnings for Employee within two years\nprior to the date of Employee's termination.\n(b)\nDuring the period commencing on the date hereof and ending on the last day of the twenty-\nfourth (24th) month following the Employee's termination for any reason whatsoever, including but not limited\nto involuntary termination (with or without Cause) and/or voluntary termination, the Employee will not,\ndirectly or indirectly, induce other employees of the Company to terminate their employment with the\nCompany or engage in any Competing Business.\nSection 7.\nCompany Right to Inventions.\nThe Employee shall promptly disclose, grant and assign ownership to the\n5\nCompany for its sole use and benefit any and all inventions, improvements, technical information and\nsuggestions relating in any way to the business of the Company (whether patentable or not), which he may\ndevelop, acquire, conceive or reduce to practice while employed by the Company (whether or not during usual\nworking hours), together with all patent applications, letters patent, copyrights and reissues thereof that may at\nany time be granted for or upon any such invention, improvement or technical information. In connection\ntherewith:\n(a)\nThe Employee shall without charge, but at the expense of the Company, promptly at all times\nhereafter execute and deliver such applications, assignments, descriptions and other instruments as may be\nnecessary or proper in the opinion of the Company to vest title to any such inventions, improvements, technical\ninformation, patent applications, patents, copyrights or reissues thereof in the corporation and to enable it to\nobtain and maintain the entire right and title thereto throughout the world; and\n(b)\nThe Employee shall render to the Company at its expense (including a reasonable payment for\nthe time involved in case he is not then in its employ) all such assistance as it may require in the prosecution of\napplications for said patents, copyrights or reissues thereof, in the prosecution or defense of interferences which\nmay be declared involving any said applications, patents or copyrights and in any litigation in which the\nCompany may be involved relating to any such patents, inventions, improvements or technical information.\nSection 8.\nRemedies; Survival.\n(a)\nThe Employee acknowledges and understands that the provisions of this Agreement are of a\nspecial\nand\nunique\nnature,\nthe\nloss\nof\nwhich\ncannot\nbe\naccurately\ncompensated\nfor\nin\ndamages\nby\nan\naction\nat\nlaw, and that the breach or threatened breach of the provisions of this Agreement would cause the Company\nirreparable harm. In the event of a breach or threatened breach by the Employee of the provisions in Section 4,\nSection 5, Section 6, or Section 7 hereof, the Company shall be entitled to but not limited to injunctive relief\nrestraining him from such breach without posting any bond. Nothing herein contained shall be construed as\nprohibiting the Company from pursuing any other additional or alternative remedies available for any breach or\nthreatened breach of this Agreement, including but not limited to monetary damages.\n(b)\nNotwithstanding anything contained in the Agreement to the contrary, the provisions of\nSection 4, Section 5, Section 6, Section 7 and this Section 8, shall survive the expiration or other termination of\nthis Agreement or employment of the Employee by the Company until by their terms, such provisions are no\nlonger operative.\nSection 9.\nOther Agreements: Prohibition Against Use of Trade Secrets of Others.\n(a)\nEmployee represents and warrants to the Company that, except for the\n6\nrestrictive covenants in the Separate Agreement with WorldPay set forth in Exhibit A attached hereto, he is not\nparty to any agreement or other arrangement with any other corporation, partnership or entity relating to\nnoncompetition with such entity or to non-disclosure of confidential and proprietary information of such entity\nor to other matters similar to the matters set forth in this Agreement.\n(b)\nEmployee represents, warrants and agrees that he can and will perform his duties for the\nCompany without the unauthorized use of any confidential and/or proprietary information of others.\nSection 10. General Provisions.\n(a)\nThis Agreement and any or all terms hereof may not be changed, waived, discharged, or\nterminated orally, but only by way of an instrument in writing executed by the Company and the Employee.\n(b)\nThis Agreement shall be governed by and construed in accordance with the laws of the State of\nNew Jersey without regard to legal principles pertaining to conflict of laws.\n(c)\nIt is the desire and intent of the parties hereto that the provisions of this Agreement shall be\nenforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in\nwhich enforcement is sought. Accordingly, to the extent that a restriction contained in this Agreement is more\nrestrictive than permitted by the laws of any jurisdiction where this Agreement may be subject to review and\ninterpretation, the terms of such restriction, for the purpose only of the operation of such restriction in such\njurisdiction, shall be the maximum restriction allowed by the laws of such jurisdiction and such restriction shall\nbe deemed to have been revised accordingly herein.\n(d)\nAny suit, action or proceeding arising out of or relating to this Agreement shall be brought\nonly in the Superior Court in the County of Mercer, New Jersey or the United States District Court for the\nDistrict of New Jersey, and Employee hereby agrees and consents to the personal and exclusive jurisdiction of\nsaid courts over him or her as to all suits, actions and proceedings arising out of or relating to this Agreement,\nand Employee further waives any claim that such suit, action or proceeding is brought in an improper or\ninconvenient forum.\n(e)\nIf any portion of this Agreement shall be found to be invalid or contrary to public policy, the\nsame may be modified or stricken by a Court of competent jurisdiction, to the extent necessary to allow the\nCourt to enforce such provision in a manner which is as consistent with the original intent of the provision as\npossible. The striking or modification by the Court of any provision shall not have the effect of invalidating the\nAgreement as a whole.\n7\n(f)\nThis Agreement constitutes the entire and exclusive agreement between Employee and\nCompany pertaining to the subject matter thereof, and supersedes and replaces any and all earlier confidential\ninformation, invention and noncompetition agreements between Company and Employee and representations\nand understandings of the parties with respect thereto, without extinguishing whatsoever rights heretofore\nacquired by Company under any previous agreements.\n(g)\nThe Company may assign any of its rights under this Agreement to any successor entity to the\nCompany, including, but not limited to, any entity formed by the Company to carry on the business of the\nCompany.\n[SIGNATURES APPEAR ON NEXT PAGE]\n8\nIN WITNESS WHEREOF, the Agreement has been executed as aforesaid.\nCOMPANY\nHEARTLAND PAYMENT SYSTEMS, INC.\nBy: /s/ Robert O. Carr\nName: Robert O. Carr\nTitle: Chief Executive Officer\nEMPLOYEE:\nBy:\n/s/ Ian Drysdale\nName: Ian Drysdale\n9\nEXHIBIT A\nOTHER AGREEMENTS\n[NONE]\n10	EX-10 .8 5 hpyexhibit108iandrysdaleno.htm CONFIDENTIALITY, NON-COMPETE AGREEMENT IAN DRYSDALE\nEMPLOYEE CONFIDENTIAL INFORMATION\nAND\nNONCOMPETITION AGREEMENT\nThis Employee Confidential Information and Noncompetition Agreement is made and entered into on\nthis 9th day of July, 2012, by and between Ian Drysdale, hereinafter “Employee,” and Heartland Payment\nSystems, Inc., a Delaware corporation (collectively with any and all current and future subsidiary and/or\naffiliate companies, the “Company”).\nWHEREAS, Employee has established an employment relationship with the Company and has\nreceived, and may continue to receive, certain benefits including stock grants and options; and\nWHEREAS, by reason of employment by the Company, Employee has received, and will continue to\nreceive, the value and advantage of confidential information and special training and skills, and the expert\nknowledge and experience of the contacts with other Company employees; and\nWHEREAS, the future granting of stock grants and options represents an advantage to Employee and\nwas conditioned upon Employee entering into this Agreement; and\nNOW THEREFORE, in exchange for good and valuable consideration, the sufficiency and receipt of\nwhich is hereby acknowledged, it is agreed as follows:\nSection 1. Scope of Agreement.\n(a)\nThis contract is not a contract of employment for any particular term. Employee's employment\nby the Company is at will, unless otherwise agreed by the Company and Employee in writing.\n(b)\nSeverance policies and procedures are as set forth in the Employee Policy Manual of the\nCompany; provided, that in the event of a conflict between this Agreement and the Employee Policy Manual,\nthis Agreement shall govern.\nSection 2. Severance and Bonuses.\n(a)\nIn consideration of the covenants by Employee contained below, in the event of a termination\nof Employee's employment by action of the Company other than for Cause or Disability, the Employee will\nreceive severance pay, in an amount equal to\n1\nthe base salary that would have been paid for a period of six (6) months payable in accordance with the\nCompany's regular payroll practices, plus medical benefits for such period, paid as if Employee were still\nemployed with Company; provided, that the Employee shall not be eligible to receive such severance pay\nunless such termination of employment occurs after the ninetieth (90th) day of the Employee's employment by\nthe Company. Medical benefit continuation during such severance period shall be counted against the benefit\ncontinuation period required under COBRA.\n(b)\nIn the event of a termination of Employee's employment by action of the Company other than\nfor Cause or in the event of termination of Employee's employment by death of Employee, the Employee (or is\ndesignee or next of kin, in the event of death of the employee) shall also be entitled to receive fifty percent\n(50%) of the pro rata portion (based on the number of days of Employee's employment during the fiscal quarter\nin which the Employee's employment is terminated) of any bonus payment that would have been payable to\nhim for that fiscal quarter if the Employee had been in the employ of the Company for the full fiscal quarter. If\nthe Employee's compensation arrangement did not contemplate a bonus payable on a quarterly basis, but\ninstead contemplated a bonus paid on some longer fiscal period (such as a half-year or full year), then fifty\npercent (50%) of the pro rata bonus shall be computed based on the number of days of Employee's employment\nduring such longer fiscal period in which the Employee's employment is terminated and the amount of the\nbonus payment that would have been payable to him for such longer fiscal period. No bonus will be payable to\nthe Employee with respect to any bonus period commencing after the bonus period in which the Employee's\nemployment terminated.\n(c) Cause. “Cause” means:\n(i)\nThe Employee has breached the provisions of Section 4, Section 5, Section 6, or Section\n7 of this Agreement in any material respect;\n(ii)\nThe Employee is enjoined by any judge, jury, arbitrator or other adjudicator from\nperforming one or more of the essential or material functions of Employee's job for the Company; or\n(iii)\nThe Employee has been convicted of, or plead guilty or no contest to, (A) fraud,\nmisappropriation or embezzlement in connection with the Company's business, or (B) a felony, and has\nfailed to submit a resignation in accordance with Section 2(d) below; or\n(iv)\nThe Employee has breached his or her duties hereunder or failed to perform his or her\nduties as an officer or employee of the Company, if such breach or failure has not been cured with thirty\n(30) days after receipt of written notice from the Company of such breach or failure.\n2\nNotwithstanding the foregoing, the Employee shall not be deemed to have been terminated for Cause\npursuant to clause (i) above unless and until there shall have been delivered to the Employee (A) a notice of\ntermination and (B) a copy of a resolution duly adopted by the Board of Directors of the Company finding that,\nafter reasonable notice to the Employee and an opportunity to be heard, in the good faith opinion of the Board\nof Directors of the Company, the Employee has engaged in conduct constituting Cause for termination\nhereunder.\n(c)\nDisability. “Disability” means any mental or physical condition that renders the Employee\nunable to perform the essential functions of his position, with or without reasonable accommodation, for a\nperiod in excess of six (6) months.\n(d)\nIf the Employee is ever convicted of, or pleads guilty or no contest to, any felony offense, then\nthe Employee shall immediately tender a resignation from each and every position the Employee then holds\nwith the Company (whether as officer, director, employee, consultant or otherwise).\nSection 3. Employees' Acknowledgments.\n(a)\nThe Employee understands and acknowledges that because of the confidential and sensitive\nnature of the information to which the Employee will have access during the course of his employment with the\nCompany, any unauthorized use, disclosure or misappropriation of such information will cause irreparable\ndamage to the Company.\n(b)\nThe Employee acknowledges that the Company has expended considerable resources to\ndevelop the confidential information and the relationships that the Company enjoys with its customers,\nsuppliers, employees, officers and other agents, and these assets of the Company are critical to the business of\nthe Company. The Employee agrees that the restrictions set forth below are necessary to prevent even the\ninadvertent disclosure of this confidential information or the interference with these relationships and to protect\nthe legitimate business interests of the Company and are reasonable in scope and content.\nSection 4. Protection of Information.\n(a)\nThe Employee hereby covenants with Company that, throughout the term of his employment\nby the Company, Employee will serve Company's best interests loyally and diligently. Throughout the course of\nemployment by Company and thereafter, Employee will not disclose to any person, firm, corporation or entity\n(except when expressly authorized in writing by Company) any information relating to Company's business,\nincluding, without limitation, merchant application processing and credit underwriting software, merchant\ninformation systems, sales compensation and sales force automation software and systems, electronic payment\ntransaction processing software,\n3\nfraud and risk analysis systems, human resources and time and attendance information systems and software,\npayroll services information systems and payroll application processing software, sales policy documents,\nmarketing communications materials, information relating to trade secrets, business methods, products,\nprocesses, procedures, development or experimental projects, suppliers, customer lists or the needs of\ncustomers or prospective customers, clients, etc., and will not use such information for his own purpose or for\nthe purpose of any person, firm, corporation or entity except the Company.\n(b)\nUpon termination of his employment with the Company, the Employee shall deliver promptly\nto the Company all records, manuals, books, blank forms, documents, letters, memoranda, notes, notebooks,\nreports, data, tables, calculations or copies thereof that relate in any way to the business, products, practices or\ntechniques of the Company, and all other property trade secrets and confidential information of the Company,\nincluding, but not limited to, all documents that in whole or in part contain any trade secrets or confidential\ninformation of the Company, which in any of these cases are in his possession or under his control.\nSection 5. Covenant Not to Compete.\n(a)\nDuring the Restricted Period (as defined below), Employee will not (i) directly or indirectly\nperform activities of the type conducted, authorized, offered, or provided to the Company within two years\nprior to termination for any business which markets, sells or is developing products or services which compete\nwith the products or services marketed, sold or being developed by the Company within two years of such\ntermination (such business being hereinafter sometimes called a “Competing Business”), in any territory in\nwhich Employee conducted business on behalf of the Company within one year of termination, or (ii) assist\nothers in engaging in any Competing Business in any manner described in the foregoing clause (i).\n(b)\nThe Employee understands that the foregoing restrictions may limit his ability to earn a\nlivelihood in a business competitive to the business of the Company, but he nevertheless believes that he has\nreceived and will receive sufficient consideration and other benefits in connection with the Company's issuance\nof certain stock and stock options to the Employee as well as other benefits to clearly justify such restrictions\nwhich, in any event (given his education, skills and ability), the Employee does not believe would prevent him\nfrom earning a living.\n(c)\n“Restricted Period” shall mean the period commencing on the date hereof and ending on the\nlast day of the sixth (6th) full calendar month following the Employee's termination for any reason whatsoever\nincluding but not limited to involuntary termination (with or without Cause) and/or voluntary termination. In\nthe event the enforceability of any of the terms of the Agreement shall be challenged in Court and Employee is\nnot enjoined from breaching any of the protective covenants, then if a\n4\ncourt of competent jurisdiction finds that the challenged protective covenant is enforceable, the time periods\nshall be deemed tolled upon the filing of the lawsuit challenging the enforceability of this Agreement until the\ndispute is finally resolved and all periods of appeal have expired.\nSection 6. Non Solicitation.\n(a)\nDuring the period commencing on the date hereof and ending on the last day of the twelfth\n(12th) full calendar month following the Employee's termination for any reason whatsoever including but not\nlimited to involuntary termination (with or without Cause) and/or voluntary termination, Employee hereby\ncovenants that he will not, directly or indirectly, solicit, entice or induce any Customer or Supplier (as defined\nbelow) of the Company to (i) become a Customer or Supplier of any other person or entity engaged in any\nbusiness activity that competes with any business conducted by the Company at any time during the period of\nEmployee's employment with the Company, or any business planned by the Company at any time during the\nperiod of Employee's employment with the Company or (ii) cease doing business with the Company, and\nEmployee agrees that he will not assist any person or entity in taking any action described in the foregoing\nclauses (i) and (ii). For purposes of this Section 6, (A) a “Customer” of the Company means any person,\ncorporation, partnership, trust, division, business unit, department or agency with whom Employee had\nMaterial Contact (as defined below) at the time of termination or within one year prior thereto; and (B) a\n“Supplier” of the Company means any person, corporation, partnership, trust, division, business unit,\ndepartment or agency with whom Employee had Material Contact (as defined below) at the time of termination\nor within one year prior thereto. Material Contact means the contact between Employee and each customer,\npotential customer, supplier, and/or potential supplier; (a) with whom or which Employee dealt on behalf of the\nCompany; (b) whose dealings with the Company were coordinated or supervised by Employee; (c) about whom\nEmployee obtained confidential information in the ordinary course of business as a result of Employee's\nassociation with the Company; or (d) who receives products or services authorized by the Company, the sale or\nprovision of which results or resulted in compensation, commissions or earnings for Employee within two years\nprior to the date of Employee's termination.\n(b)\nDuring the period commencing on the date hereof and ending on the last day of the twenty-\nfourth (24th) month following the Employee's termination for any reason whatsoever, including but not limited\nto involuntary termination (with or without Cause) and/or voluntary termination, the Employee will not,\ndirectly or indirectly, induce other employees of the Company to terminate their employment with the\nCompany or engage in any Competing Business.\nSection 7. Company Right to Inventions.\nThe Employee shall promptly disclose, grant and assign ownership to the\n5\nCompany for its sole use and benefit any and all inventions, improvements, technical information and\nsuggestions relating in any way to the business of the Company (whether patentable or not), which he may\ndevelop, acquire, conceive or reduce to practice while employed by the Company (whether or not during usual\nworking hours), together with all patent applications, letters patent, copyrights and reissues thereof that may at\nany time be granted for or upon any such invention, improvement or technical information. In connection\ntherewith:\n(a)\nThe Employee shall without charge, but at the expense of the Company, promptly at all times\nhereafter execute and deliver such applications, assignments, descriptions and other instruments as may be\nnecessary or proper in the opinion of the Company to vest title to any such inventions, improvements, technical\ninformation, patent applications, patents, copyrights or reissues thereof in the corporation and to enable it to\nobtain and maintain the entire right and title thereto throughout the world; and\n(b)\nThe Employee shall render to the Company at its expense (including a reasonable payment for\nthe time involved in case he is not then in its employ) all such assistance as it may require in the prosecution of\napplications for said patents, copyrights or reissues thereof, in the prosecution or defense of interferences which\nmay be declared involving any said applications, patents or copyrights and in any litigation in which the\nCompany may be involved relating to any such patents, inventions, improvements or technical information.\nSection 8. Remedies; Survival.\n(a)\nThe Employee acknowledges and understands that the provisions of this Agreement are of a\nspecial and unique nature, the loss of which cannot be accurately compensated for in damages by an action at\nlaw, and that the breach or threatened breach of the provisions of this Agreement would cause the Company\nirreparable harm. In the event of a breach or threatened breach by the Employee of the provisions in Section 4,\nSection 5, Section 6, or Section 7 hereof, the Company shall be entitled to but not limited to injunctive relief\nrestraining him from such breach without posting any bond. Nothing herein contained shall be construed as\nprohibiting the Company from pursuing any other additional or alternative remedies available for any breach or\nthreatened breach of this Agreement, including but not limited to monetary damages.\n(b)\nNotwithstanding anything contained in the Agreement to the contrary, the provisions of\nSection 4, Section 5, Section 6, Section 7 and this Section 8, shall survive the expiration or other termination of\nthis Agreement or employment of the Employee by the Company until by their terms, such provisions are no\nlonger operative.\nSection 9. Other Agreements: Prohibition Against Use of Trade Secrets of Others.\n(a)\nEmployee represents and warrants to the Company that, except for the\n6\nrestrictive covenants in the Separate Agreement with WorldPay set forth in Exhibit A attached hereto, he is not\nparty to any agreement or other arrangement with any other corporation, partnership or entity relating to\nnoncompetition with such entity or to non-disclosure of confidential and proprietary information of such entity\nor to other matters similar to the matters set forth in this Agreement.\n(b)\nEmployee represents, warrants and agrees that he can and will perform his duties for the\nCompany without the unauthorized use of any confidential and/or proprietary information of others.\nSection 10. General Provisions.\n(a)\nThis Agreement and any or all terms hereof may not be changed, waived, discharged, or\nterminated orally, but only by way of an instrument in writing executed by the Company and the Employee.\n(b)\nThis Agreement shall be governed by and construed in accordance with the laws of the State of\nNew Jersey without regard to legal principles pertaining to conflict of laws.\n(c)\nIt is the desire and intent of the parties hereto that the provisions of this Agreement shall be\nenforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in\nwhich enforcement is sought. Accordingly, to the extent that a restriction contained in this Agreement is more\nrestrictive than permitted by the laws of any jurisdiction where this Agreement may be subject to review and\ninterpretation, the terms of such restriction, for the purpose only of the operation of such restriction in such\njurisdiction, shall be the maximum restriction allowed by the laws of such jurisdiction and such restriction shall\nbe deemed to have been revised accordingly herein.\n(d)\nAny suit, action or proceeding arising out of or relating to this Agreement shall be brought\nonly in the Superior Court in the County of Mercer, New Jersey or the United States District Court for the\nDistrict of New Jersey, and Employee hereby agrees and consents to the personal and exclusive jurisdiction of\nsaid courts over him or her as to all suits, actions and proceedings arising out of or relating to this Agreement,\nand Employee further waives any claim that such suit, action or proceeding is brought in an improper or\ninconvenient forum.\n(e)\nIf any portion of this Agreement shall be found to be invalid or contrary to public policy, the\nsame may be modified or stricken by a Court of competent jurisdiction, to the extent necessary to allow the\nCourt to enforce such provision in a manner which is as consistent with the original intent of the provision as\npossible. The striking or modification by the Court of any provision shall not have the effect of invalidating the\nAgreement as a whole.\n7\n(f)\nThis Agreement constitutes the entire and exclusive agreement between Employee and\nCompany pertaining to the subject matter thereof, and supersedes and replaces any and all earlier confidential\ninformation, invention and noncompetition agreements between Company and Employee and representations\nand understandings of the parties with respect thereto, without extinguishing whatsoever rights heretofore\nacquired by Company under any previous agreements.\n(g)\nThe Company may assign any of its rights under this Agreement to any successor entity to the\nCompany, including, but not limited to, any entity formed by the Company to carry on the business of the\nCompany.\n[SIGNATURES APPEAR ON NEXT PAGE]\n8\nIN WITNESS WHEREOF, the Agreement has been executed as aforesaid.\nCOMPANY\nHEARTLAND PAYMENT SYSTEMS, INC.\nBy: /s/ Robert O. Carr\nName: Robert O. Carr\nTitle: Chief Executive Officer\nEMPLOYEE:\nBy: /s/ Ian Drysdale\nName: Ian Drysdale\n9\nEXHIBIT A\nOTHER AGREEMENTS\n[NONE]\n10
+9a5cb31024ad0a7a4916e4f122ebea4a.pdf	effective_date jurisdiction party term	EX-10.3 2 dex103.htm FORM OF EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-\nCOMPETITION AGREEMENT\nEXHIBIT 10.3\nEMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT\nTHIS EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT (this “Agreement”) is\nentered into as of [\n,\n] by and between [\n] (the “Executive”) and SAVVIS, INC., a Delaware corporation, (“SAVVIS”) and all\nits subsidiaries (collectively referred to as the “Company”). Capitalized terms used but not defined herein have the respective meanings ascribed to\nsuch terms in Section 7 of this Agreement.\nWHEREAS, Executive acknowledges that:\n•\nthe Company and its Affiliates are and will be engaged in a number of highly competitive lines of business.\n•\nthe Company and its Affiliates conduct business throughout the United States and in numerous foreign countries;\n•\nthe Company and its Affiliates possess Confidential Information and customer goodwill that provide the Company and its Affiliates with\na significant competitive advantage; and\n•\nthe Company’s and its Affiliates’ success depends to a substantial extent upon the protection of its Confidential Information (which\nincludes trade secrets and customer lists) and customer goodwill by all of their employees;\n•\nExecutive has and will continue to have possession of Confidential Information; and\nWHEREAS, if Executive were to leave the Company, the Company and its Affiliates would in all fairness need certain protections to prevent\ncompetitors from gaining an unfair competitive advantage over them.\nNOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Term of Agreement. This Agreement will remain in effect from the date hereof until the date the Executive’s employment with the Company\nterminates for any reason. The following provisions shall survive termination or expiration of this Agreement for any reason, to the extent\napplicable and in accordance with their terms: Sections 4, 5, 6 and 8. Executive’s employment is “at-will”, and nothing contained herein shall\nbe deemed a guarantee of employment with Company for any period of time.\n2. Capacity and Performance.\n(a) During the term hereof, the Executive shall serve the Company in the position to which he or she is appointed from time to time.\nExecutive’s position as of the date of this Agreement is [\n]. During the term hereof, Executive will be employed by the Company on a\nfull-time basis and shall perform the duties and responsibilities of his or her\nposition and such other duties and responsibilities on behalf of the Company and its Affiliates, reasonably related to that position, as may be\ndesignated from time to time by the Compensation Committee (the “Compensation Committee”) of the Board of Directors of SAVVIS (the\n“Board”) or other designee.\n(b) During the term hereof, the Executive shall devote his full business time and his best efforts, business judgment, skill and knowledge\nto the advancement of the business and interests of the Company and its Affiliates and to the discharge of his duties and responsibilities\nhereunder. The Executive shall not engage in any other business activity or serve in any industry, trade, professional, governmental or\nacademic position during the term of this Agreement, except as may otherwise be expressly approved in advance by the Compensation\nCommittee or other designee in writing.\n3. Compensation and Benefits. As compensation for all services performed by the Executive under and during the term hereof, and subject to\nperformance of the Executive’s duties and the fulfillment of the obligations of the Executive to the Company and its Affiliates, pursuant to this\nAgreement or otherwise:\n(a) Base Salary. During the term hereof, the Company shall pay the Executive a base salary, which as of the date of execution of this\nAgreement is set at the rate of [\nDollars ($\n) ] per annum, payable in accordance with the regular payroll practices of the\nCompany for its executives subject to adjustment from time to time by the Compensation Committee, in its sole discretion. Such base salary,\nas from time to time adjusted, is hereafter referred to as the “Base Salary”.\n(b) Incentive and Bonus Compensation.\n(i) For service rendered during the Company’s fiscal year ending December 31, [ ], the Executive will be eligible, at the\nCompensation Committee’s discretion, to receive a bonus payment equal to [\n]% of Base Salary, payable in accordance with the\nterms of the Company’s [\n] Annual Incentive Plan.\n(ii) Commencing on January 1, [ ] and for the remainder of the term hereof, the Executive shall be entitled to participate in the\nCompany’s Annual Incentive Plan (the “Annual Incentive Plan”) on terms to be determined annually by the Compensation Committee\nprior to the commencement of each fiscal year. Nothing contained herein shall obligate the Company to continue the Annual Incentive\nPlan. Any compensation paid to the Executive under the Annual Incentive Plan shall be in addition to the Base Salary. Except as\notherwise expressly provided under the terms of the Annual Incentive Plan or this Agreement, the Executive shall not be entitled to earn\nbonus or other compensation for services rendered to the Company.\n[Insert equity grant provisions if applicable.]\n4. Termination of Employment.\n(a) Executive’s employment with the Company may be terminated as follows:\n(i) by the Company with Cause;\n(ii) by the Company without Cause;\n(iii) upon Executive’s death or Disability (defined herein);\n(iv) by Executive with Good Reason; or\n(v) by Executive without Good Reason.\n(b) Upon termination of Executive’s employment for any reason, all rights and obligations under this Agreement shall cease, except as\nreferred to in Section 1 and except that Executive shall be entitled to (i) payment of his or her salary through the effective date of termination,\nplus (ii) payment of any other amounts owed but not yet paid to Executive as of the effective date of termination (such as reimbursement for\nbusiness expenses incurred prior to termination in accordance with the Company’s expense and reimbursement policy, plus (iii) any other\nbenefits to which Executive may be entitled which provide for payment or other benefits following termination (such as under disability\ninsurance plan).\n(c) Severance Benefits.\n(i) If the Executive is subject to termination pursuant to an Involuntary Termination (as defined in Section 7), then in addition to\nany amounts / benefits owed under Section 4(b), the Company shall pay the Executive: (x) an amount equal to 100% of his or her then\ncurrent annual Base Salary for one year (the “Severance Payment”) and (y) at the discretion of the Compensation Committee, a pro-rated\nportion of the bonus that the Executive would be entitled to receive under the Company’s Annual Incentive Plan (“Bonus”). The pro-\nrated Bonus will be calculated by the compensation committee by extrapolating the Company’s anticipated full year performance based\non the current year performance to date and then multiplying the resulting full year extrapolation by a fraction the numerator of which is\nthe number of days during the calendar year the Executive worked in the year of Involuntary Termination up to the termination date and\nthe denominator of which is 365. Any such Bonus shall be paid not later than 30 days after the date of the Involuntary Termination. If the\nExecutive is subject to an Involuntary Termination prior to March 31 of any calendar year, and has, therefore, not yet received payment\nfor the prior year under the Annual Incentive Plan, then the Executive will also be entitled to such payment under the Annual Incentive\nPlan as he would otherwise have been entitled to receive had he remained employed on March 31 of the year of Involuntary Termination.\nAny such Bonus shall be paid at the time bonuses are paid to other employees under the Annual Incentive Plan and not later than the end\nof the year during which the Involuntary Termination occurred.\n(ii) Further, if and only if the Involuntary Termination occurs within twelve (12) months after a Change in Control (a “Change in\nControl Termination”), then (x) in addition to the Severance Payment, any stock awards, stock options, stock appreciation rights or other\nequity-based awards (each an “Equity Award”) that were outstanding immediately prior to the effective date of the Change in Control\nTermination shall, unless such Equity Awards are no longer outstanding, to the extent not then vested, fully vest and become exercisable\nas of such date and the Executive shall have the right to exercise any such Equity Award until the earlier to occur of (A) twelve\n(12) months from the date of the Change in Control Termination and (B) the expiration date of such Equity Award as set forth in the\nagreement evidencing such award; and (y) the Executive shall be entitled to the Bonus, which shall be paid not later than 30 days after\nthe date of the Change in Control Termination.\n(d) Timing of and Conditions to Payment. Any Severance Payment due under Section 4(c) shall be paid bi-monthly, in accordance with\nthe Company’s standard payroll procedures, for the twelve (12) month period following the effective date of termination. Any other provision\nof this Agreement notwithstanding, no severance benefits shall be payable unless and until each of the following has occurred:\n(i) the Executive has executed and delivered to the Company a general release (in a form prescribed by the Company) of all known\nand unknown claims that he or she may then have against the Company or persons affiliated with the Company and has agreed not to\nprosecute any legal action or other proceeding based upon any of such claims;\n(ii) the Executive has, no later than the effective date of termination, delivered to the Company a resignation from all offices,\ndirectorships and fiduciary positions with the Company and it affiliates;\n(iii) the effective date of the Executive’s Involuntary Termination;\n(iv) the date of the Company’s receipt of the Executive’s executed General Release, which must be no later than 21 days following\nthe effective date of termination (except in the case of group terminations, such time period shall be 45 days);\n(v) the expiration of any rescission or revocation period applicable to the Executive’s executed General Release; and\n(vi) the Executive is and continues to be in compliance with all of his or her obligations under this Agreement, including, without\nlimitation, Sections 5 and 6, and under the agreements and other documents referred to or incorporated by reference herein.\nThe Company will commence payment of the Severance Payment within ten (10) business days of satisfaction / occurrence of the last of the\nforegoing items (1) through (5). For purposes of Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), an installment\nSeverance Payment shall be deemed to be made as of the applicable bimonthly payroll date following the Executive’s effective date of termination if\nmade by the 15th day of the third calendar month following such payroll date.\n(e) Health Care Benefit. Following an Involuntary Termination, the Company will pay to the Executive a monthly taxable cash payment\nin an amount equal (on an after tax basis, taking into account federal, state, local and foreign taxes) to the monthly COBRA (Consolidated\nOmnibus Budget Reconciliation Act) premium(s) in effect as of immediately prior to the Executive’s Involuntary Termination for the most\nexpensive level of coverage under the group health plan(s) applicable to the Executive at the time of the Executive’s Involuntary Termination.\nThe monthly payments will commence with the first month following the Executive’s Involuntary Termination and will terminate upon the\nearlier of (a) the Executive having received twelve monthly payments and (b) the Executive becoming re-employed and entitled to coverage\nunder the new employer’s group health plan. The Executive agrees to notify the Company in writing immediately upon becoming re-employed\nand entitled to coverage under a new employer’s group health plan.\n(f) Withholding Taxes. All payments made under this Agreement shall be subject to reduction to reflect taxes or other charges required to\nbe withheld by law.\n(g) Section 409A Savings Clause. This Agreement is intended to comply with the requirements of Section 409A of the Code (including\nthe exceptions thereto) to the extent applicable, and the Agreement shall be interpreted in a manner consistent with such requirements.\nNotwithstanding any other provision hereof, if any provision of the Agreement conflicts with the requirements of Section 409A of the Code (or\nan exception thereto), such provision shall be deemed reformed so as to comply with the requirements of Section 409A of the Code (or an\nexception thereto) and shall be interpreted and applied accordingly.\nAmounts payable other than those expressly payable on a deferred or installment basis, will be paid as promptly as practical and, in any event,\nwithin 2 /2 months after the end of the year in which such amount was earned.\nAny amount that the Executive is entitled to be reimbursed will be reimbursed as promptly as practical and in any event not later than the last\nday of the calendar year after the calendar year in which the expenses are incurred, and the amount of the expenses eligible for reimbursement during\nany calendar year will not affect the amount of expenses eligible for reimbursement in any other calendar year.\nIf at the time of separation from service (i) the Executive is a specified employee (within the meaning of Section 409A and using the\nidentification methodology selected by the Company from time to time), and (ii) the Company makes a good faith determination that an amount\npayable by the Company to the Executive constitutes deferred compensation (within the meaning of Section 409A) the payment of which is required\nto be delayed pursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A, then the\nCompany will not pay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on the first business day after\nsuch six-month period together with interest for the period of delay, compounded annually, equal to the prime rate (as published in the Wall Street\nJournal) in effect as of the dates the payments should otherwise have been provided.\n5. Confidential Information.\n(a) The Executive acknowledges that the Company and its Affiliates continually develop Confidential Information, that the Executive\nmay develop Confidential Information for the Company or its Affiliates and that the Executive will have possession of and access to\nConfidential Information during the course of employment. The Executive will comply with the policies and procedures of the Company and\nits Affiliates for protecting Confidential Information, and shall not disclose to any Person or use, other than as required by applicable law or\nfor the proper performance of his duties and responsibilities to the Company and its Affiliates, any Confidential Information obtained by the\nExecutive incident to his employment or other association with the Company or any of its Affiliates. The Executive understands that this\nrestriction shall continue to apply after his employment terminates, regardless of the reason for such termination. The confidentiality obligation\nunder this Section 5 shall not apply to information which is generally known or readily available to the public at the time of disclosure or\nbecomes generally known through no wrongful act on the part of the Executive or any other Person having an obligation of confidentiality to\nthe Company or any of its Affiliates.\n(b) All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the\nCompany or its Affiliates and any copies, in whole or in part, thereof (the “Documents”), whether or not prepared by the Executive, shall be\nthe sole and exclusive property of the Company and its Affiliates. The Executive shall safeguard all Documents and shall surrender to the\nCompany at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then\nin the Executive’s possession or control.\n(c) In the event that Executive is requested or becomes legally compelled (by oral questions, interrogatories, requests for information or\ndocuments, deposition, subpoena, civil investigative\n1\ndemand or similar process) to disclose any of the Confidential Information, the Executive shall, where permitted under applicable law, rule or\nregulation, provide written notice to the Company promptly after such request so that the Company may, at its expense, seek a protective order\nor other appropriate remedy (the Executive agrees to reasonably cooperate with the Company in connection with seeking such order or other\nremedy). In the event that such protective order or other remedy is not obtained, the Executive shall furnish only that portion of the\nConfidential Information that the Executive is advised by counsel is required, and shall exercise reasonable efforts to obtain assurance that\nconfidential treatment will be accorded such Confidential Information. In addition, the Executive may disclose Confidential Information in the\ncourse of inspections, examinations or inquiries by federal or state regulatory agencies and self regulatory organizations that have requested or\nrequired the inspection of records that contain the Confidential Information provided that the Executive exercises reasonable efforts to obtain\nreliable assurances that confidential treatment will be accorded to such Confidential Information. To the extent such information is required to\nbe disclosed and is not accorded confidential treatment as described in the immediately preceding sentence, it shall not constitute “Confidential\nInformation” under this Agreement.\n6. Certain Covenants.\n(a) The Executive agrees that, during his employment with the Company, he or she will not undertake any outside activity, whether or not\ncompetitive with the business of the Company or its Affiliates that could reasonably give rise to a conflict of interest or otherwise materially\ninterfere with his or her duties and obligations to the Company or any of its Affiliates.\n(b) During the term of Executive’s employment and for twelve (12) months following termination of his or her employment for any\nreason (the “Restricted Period”), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent,\nemployee, co-venturer or otherwise:\n(i) compete with the Company or any of its Affiliates within the geographic area in which the Company does business or undertake\nany planning for any business competitive with the Company or any of its Affiliates. Specifically, but without limiting the foregoing, the\nExecutive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company\nor any of its Affiliates as conducted or under consideration at any time during the Executive’s employment, and further agrees not to\nwork or provide services, in any capacity, whether as an employee, independent contractor or otherwise, whether with or without\ncompensation, to any Person who is engaged in any business that is competitive with the business of the Company or any of its Affiliates\nfor which the Executive has provided services. The foregoing, however, shall not prevent the Executive’s passive ownership of two\npercent (2%) or less of the equity securities of any publicly traded company. Notwithstanding any provision in this Agreement, section 6.\n(b) (i) shall not be deemed to create post-employment non-competition restrictions on the Executive if the Executive’s primary residence\nis in the state of California; or\n(ii) solicit or encourage any customer of the Company or any of its Affiliates to terminate or diminish its relationship with them; or\n(iii) seek to persuade any such customer of the Company or any of its Affiliates to conduct with anyone else any business or\nactivity which such customer conducts with the Company or any of its Affiliates; provided that these restrictions shall apply only if the\nExecutive\nhas performed work for such Person during his employment with the Company or one of its Affiliates or has been introduced to, or\notherwise had contact with, such Person as a result of his employment or other associations with the Company or one of its Affiliates or\nhas had access to Confidential Information which would assist in the Executive’s solicitation of such Person.\n(iv) solicit for hiring any employee or independent contractor of the Company or any of its Affiliates or seek to persuade any\nemployee or independent contractor of the Company or any of its Affiliates to discontinue or diminish such employee or independent\ncontractor’s relationship with the Company or any of its Affiliates.\n(c) Cooperation and Non-Disparagement. The Executive agrees that, during the Restricted Period, he or she shall cooperate with the\nCompany in every reasonable respect and shall use his or her best efforts to assist the Company with the transition of the Executive’s duties to\nhis or her successor. The Executive further agrees that, during the Restricted Period, he or she shall not in any way or by any means disparage\nthe Company, the members of the Company’s Board or the Company’s officers and employees.\n(d) Assignment of Inventions. The Executive shall promptly and fully disclose all Work Product (defined herein) to the Company.\nExecutive hereby assigns to the Company all of Executive’s rights, title, and interest (including but not limited to all patent, trademark,\ncopyright and trade secret rights) in and to all work product prepared by Executive, made or conceived in whole or in part by Executive within\nthe scope of Executive’s employment by the Company or within six (6) months thereafter, or that relate directly to or involve the use of\nConfidential Information (“Work Product”). Executive further acknowledges and agrees that all copyrightable Work Product prepared by\nExecutive within the scope of Executive’s employment with the Company are “works made for hire” and, consequently, that the Company\nowns all copyrights thereto. The Executive agrees to execute any and all applications for domestic and foreign patents, copyrights or other\nproprietary rights and to do such other acts (including without limitation the execution and delivery of instruments of further assurance or\nconfirmation) requested by the Company to assign the Work Product to the Company and to permit the Company to enforce any patents,\ncopyrights or other proprietary rights to the Work Product. The Executive will not charge the Company for time spent in complying with these\nobligations. Notwithstanding the foregoing, any provision in this Agreement which provides that Executive shall assign, offer to assign, any of\nhis or her rights in an invention to the Company shall not apply to an invention that the Executive developed entirely on his or her own time\nwithout using the Company’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(i) relate at the time of conception or reduction to practice of the invention to the Company’s business or actual demonstrably\nanticipated research or development of the Company; or\n(ii) result from any work performed by the Executive for the Company.\n(e) Acknowledgement Regarding Restrictions. The Company has expended a great deal of time, money and effort to develop and\nmaintain its confidential business information which, if misused or disclosed, could be very harmful to its business and could cause the\nCompany to be at a competitive disadvantage in the marketplace. The Company would not be willing to proceed with the execution of this\nAgreement but for the Executive’s signing and agreeing to abide by the terms of this Agreement. The Executive recognizes and acknowledges\nthat he or she has and will have access to Confidential Information of the Company, and that the Company, in all fairness, needs certain\nprotection in order to ensure that the Executive does not misappropriate or misuse any trade secret or other Confidential Information or take\nany other action which could result in a loss of the goodwill of the\nCompany and, more generally, to prevent the Executive from having or providing others with an unfair competitive advantage over the\nCompany. To that end, the Executive acknowledges that the foregoing restrictions, both separately and in total, are reasonable and enforceable\nin view of the Company’s legitimate interests in protecting the goodwill, confidential information and customer loyalty of its business. To the\nextent that any provision of this Agreement is adjudicated to be invalid or unenforceable because it is somehow overbroad or otherwise\nunreasonable, that provision shall not be void but rather shall be limited only to the extent required by applicable law and enforced as so\nlimited to the greatest extent allowed by law, and the validity or enforceability of the remaining provisions of this Agreement shall be\nunaffected and such adjudication shall not affect the validity or enforceability of such remaining provisions.\n(f) Right to Injunctive Relief. The Executive further agrees that in the event of any breach hereof the harm to the Company will be\nirreparable and without adequate remedy at law and, therefore, that injunctive relief with respect thereto will be appropriate. In the event of a\nbreach or threatened breach of any of the Executive’s obligations under the terms of Sections 5 or 6 hereof, the Company shall be entitled, in\naddition to any other legal or equitable remedies it may have in connection therewith (including any right to damages that it may suffer), to\ntemporary, preliminary and permanent injunctive relief restraining such breach or threatened breach (without the obligation to post bond),\ntogether with reasonable attorney’s fees incurred in preliminarily enforcing its rights hereunder. The Executive specifically agrees that if there\nis a question as to the enforceability of any of the provisions of Sections 5 or 6 hereof, the Executive will not engage in any conduct\ninconsistent with or contrary to such Section until after the question has been resolved by a final judgment of a court of competent jurisdiction.\n7. Definitions.\n(a) Definition of “Affiliate.” For all purposes under this Agreement, “Affiliate” shall mean, with respect to any Person, all Persons\ndirectly or indirectly controlling, controlled by or under common control with such Person, where control may be by either management\nauthority, contract or equity interest. As used in this definition, “control” and correlative terms have the meanings ascribed to such words in\nRule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).\n(b) Definition of “Cause.” For all purposes under this Agreement, “Cause” shall mean any of the following (i) the Executive’s willful and\ncontinued failure to perform substantially the duties of his/her responsibilities (other than due to physical or mental incapacity); (ii) the\nExecutive’s unauthorized use or disclosure of trade secrets which causes substantial harm to the Company; (iii) the Executive’s engaging in\nillegal conduct that is likely to be injurious to the Company; (iv) the Executive’s acts of fraud, dishonesty, or gross misconduct, or gross\nnegligence in connection with the business of the Company; (v) the Executive’s conviction of a felony; (vi) the Executive’s engaging in any act\nof moral turpitude reasonably likely to substantially and adversely affect the Company or its business; (vii) the Executive engaging in the\nillegal use of a controlled substance or using prescription medications unlawfully; (viii) the Executive’s abuse of alcohol; or (ix) the breach by\nthe Executive of a material term of this Agreement, including, without limitation, his or her obligations under Sections 5 or 6.\n(c) Definition of “Change in Control.” For all purposes under this Agreement, “Change in Control” means the occurrence of any of the\nfollowing:\n(A) any Person (as defined herein) becomes the beneficial owner directly or indirectly (within the meaning of Rule 13d--3 under\nthe Exchange Act) of more than 50% of SAVVIS’ then outstanding voting securities (measured on the basis of voting power); or\n(B) Individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a\nmajority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or\nnomination for election by SAVVIS’ shareholders, was approved by a vote of at least a majority of the directors then comprising the\nIncumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose,\nany such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the\nelection or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the\nBoard; or\n(C) the closing of an agreement of merger or consolidation with any other corporation or business entity, other than (x) a merger or\nconsolidation which would result in the voting securities of SAVVIS outstanding immediately prior thereto continuing to represent\n(either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership\nof any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 50% of the combined voting\npower of the voting securities of SAVVIS or such surviving entity outstanding immediately after such merger or consolidation, or (y) a\nmerger or consolidation effected to implement a recapitalization of SAVVIS (or similar transaction) in which no Person acquires more\nthan 50% of the combined voting power of SAVVIS’ then outstanding securities;\n(D) the liquidation or dissolution of SAVVIS or the closing of a sale or disposition by SAVVIS of all or substantially all of its\nassets.\nFor purposes of this paragraph, “Person” means any individual, entity or group within the meaning of Section 3(a)(9) of the Exchange Act, as\nmodified and used in Sections 13(d) and 14(d) thereof; however, a Person shall not include (aa) SAVVIS or any of its subsidiaries, (bb) a trustee or\nother fiduciary holding securities under an employee benefit plan of the Company, (cc) an underwriter temporarily holding securities pursuant to an\noffering of such securities, (dd) a corporation owned, directly or indirectly, by the shareholders of SAVVIS in substantially the same proportions as\ntheir ownership of SAVVIS common stock, (ee) any person or entity or group acquiring securities of SAVVIS pursuant to an issuance of securities\napproved by the Board, or (ff) any of the following entities or their affiliates: Welsh, Carson, Anderson & Stowe VIII L.P. and WCAS Management\nCorporation.\n(d) Definition of “Confidential Information.” For all purposes under this Agreement, “Confidential Information” shall mean any and all\ninformation of the Company and its Affiliates that is not generally known by others with whom they compete or do business, or with whom\nany of them plans to compete or do business and any and all information, publicly known in part or not, which, if disclosed by the Company or\nits Affiliates would assist in competition against them. Confidential Information includes without limitation such information relating to\n(i) trade secrets, the development, research, testing, manufacturing, marketing and financial activities of the Company and its Affiliates, (ii) the\nProducts, (iii) the costs, sources of supply, financial performance and strategic plans of the Company and its Affiliates, (iv) the identity and\nspecial needs of the customers of the Company and its Affiliates and (v) client lists and the people and organizations with whom the Company\nand its Affiliates have business relationships and the substance of those relationships. Confidential Information also includes any information\nthat the Company or any of its Affiliates have received, or may receive hereafter, belonging to customers or others with any understanding,\nexpress or implied, that the information would not be disclosed.\n(e) Definition of “Disability.” For all purposes under this Agreement, “Disability” shall mean the Executive becoming disabled during\nhis employment hereunder through any illness, injury, accident or condition of either a physical or psychological nature and, as a result, is\nunable to perform substantially all\nof his duties and responsibilities hereunder, notwithstanding the provision of any reasonable accommodation, for one hundred and eighty\n(180) days during any period of three hundred and sixty-five (365) consecutive calendar days.\n(f) Definition of “Good Reason.” For all purposes under this Agreement, “Good Reason” shall mean the occurrence of any of the\nfollowing events: (i) a change in the Executive’s position that materially reduces his or her authority and level of responsibility as an officer of\nthe Company (provided that it is understood that the Chief Executive Officer of SAVVIS as a matter of management flexibility may direct a\nchange in the Executive’s reporting relationships or job title or a transfer of the Executive to a different officer position and such change or\ntransfer shall be not deemed to result in a reduction in the Executive’s authority or level of responsibility unless it is so substantial that a\nreasonable executive would feel compelled to resign under the circumstances), (ii) a material reduction in his or her level of compensation\n(including base salary and target bonus) or (iii) a relocation of his or her employment more than fifty (50) miles from the metropolitan area in\nwhich the Executive’s office is located at the time of resignation; provided, however, that in the case of the preceding clauses (i), (ii) and (iii),\nGood Reason shall only exist if effected without the Executive’s consent and is not a result of a Company-wide or department-wide policy or\npractice. Notwithstanding the foregoing, Good Reason shall only exist if (A) the Executive provides written notice to the Company within\nninety (90) days of the occurrence of the event or condition constituting Good Reason, (B) the Company is provided a period of thirty\n(30) days to cure the event or condition giving rise to Good Reason (the “Cure Period”) and fails to do so prior to the end of the Cure Period,\nand (C) the Executive terminates employment within thirty (30) days after the end of the Cure Period.\n(g) Definition of “Intellectual Property.” For all purposes under this Agreement, “Intellectual Property” shall mean inventions,\ndiscoveries, developments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or\nconstituting trade secrets) conceived, made, created, developed or reduced to practice by the Executive (whether alone or with others, whether\nor not during normal business hours or on or off Company premises) during the Executive’s employment and during the period of six\n(6) months immediately following termination of his employment that relate to either the Products or any prospective activity of the Company\nor any of its Affiliates or that make use of Confidential Information or any of the equipment or facilities of the Company or any of its\nAffiliates.\n(h) Definition of “Involuntary Termination.” For all purposes under this Agreement, “Involuntary Termination” shall mean termination of\nemployment under Section 4(a)(ii) or Section 4(a)(iv).\n(i) Definition of “Person.” For all purposes under this Agreement, “Person” shall mean an individual, a corporation, a limited liability\ncompany, an association, a partnership, an estate, a trust and any other entity or organization.\n(j) Definition of “Products.” For all purposes under this Agreement, “Products” shall mean all products planned, researched, developed,\ntested, manufactured, sold, licensed, leased or otherwise distributed or put into use by the Company or any of its Affiliates, together with all\nservices provided or planned by the Company or any of its Affiliates, during the Executive’s employment.\n8. Miscellaneous Provisions.\n(a) Conflicts. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Company document,\nthen the provisions of this Agreement will control. This Agreement will supersede any prior agreement between the Executive and the\nCompany with respect to the subject matters contained herein and may be amended only by a writing signed by an officer of the Company\n(other than the Executive).\n(b) Notice. Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been\nduly given when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid or\ndeposited with an overnight courier, with shipping charges prepaid. In the case of the Executive, mailed notices shall be addressed to him or\nher at the home address which he or she most recently communicated to the Company in writing. In the case of SAVVIS or the Company,\nmailed notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of SAVVIS’ Senior Vice\nPresident and General Counsel.\n(c) Waiver. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is\nagreed to in writing and signed by the Executive and by an authorized officer of the Company (other than the Executive). No waiver by either\nparty of any breach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of\nany other condition or provision or of the same condition or provision at another time.\n(d) Severability. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision hereof, which shall remain in full force and effect.\n(e) No Retention Rights. Nothing in this Agreement shall confer upon the Executive any right to continue in service for any period of\nspecific duration or to interfere with or otherwise restrict in any way the rights of the Company or any subsidiary of the Company or of the\nExecutive, which rights are hereby expressly reserved by each, to terminate his or her service at any time and for any reason, with or without\nCause and with or without notice.\n(f) Choice of Law; Venue. The parties acknowledge that they each have, and will continue to have, substantial contacts with the State of\nMissouri, where the Company has its headquarters. This Agreement has been drafted and negotiated in the State of Missouri. To ensure that\nany disputes arising under this Agreement are resolved in accordance with the parties’ expectations, this Agreement shall be governed by and\nconstrued under the laws of the State of Missouri and applicable federal laws. The substantive law (and statutes of limitations) of the State of\nMissouri shall be applied to disputes arising under this Agreement, as the parties agree that their expectations with respect to the scope and\nenforcement of this Agreement are based on Missouri law, and that Missouri law is therefore more applicable to such disputes. Should\nMissouri law be found not to apply to this Agreement for any reason, the parties agree that the severance benefit described in Section 4 shall\nnot be payable, the provisions of Section 4 notwithstanding. Each party agrees that any proceeding relating to this Agreement shall be brought\nin the state courts of Missouri located in St. Louis County or the federal courts of the District of Missouri, Eastern Division. Each party hereby\nconsents to personal jurisdiction in any such action brought in any such Missouri court, consents to service of process by the methods for\nnotice under Section 8(b) hereof made upon such party, and such party’s agent and waives any objection to venue in any such Missouri court\nor to any claim that any such Missouri court is an inconvenient forum.\n(g) Attorney’s Fees. In the event of any action by either party to enforce or interpret the terms of this Agreement, the prevailing party\nwith respect to any particular claim shall (in addition to other relief to which it or he may be awarded) be entitled to recover his or its\nattorney’s fees in a reasonable amount incurred in connection with such claim.\n(h) Successors. This Agreement and all rights of the parties hereunder shall inure to the benefit of, and be enforceable by, such parties’\npersonal or legal representatives, executors, administrators, successors, heirs and assigns, as applicable.\n(i) Entire Agreement. This Agreement, together with the other agreements and any documents, instruments and certificates referred to\nherein, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes any and all prior\ndiscussions, negotiations, proposals, undertakings, understandings and agreements, whether written or oral, with respect to the subject matter\ncontained herein.\nIN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as of the\nday and year first above written.\nSAVVIS, INC.\nEXECUTIVE\nBy:\nBy:\nName:\nName:\nTitle:	EX-10.3 2 dex103.htm FORM OF EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-\nCOMPETITION AGREEMENT\nEXHIBIT 10.3\nEMPILOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT\nTHIS EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT (this “Agreement”) is\nentered into as of [ s ] by and between [ ] (the “Executive”) and SAV VIS, INC., a Delaware corporation, (“SAVVIS”) and all\nits subsidiaries (collectively referred to as the “Company”). Capitalized terms used but not defined herein have the respective meanings ascribed to\nsuch terms in Section 7 of this Agreement.\nWHEREAS, Executive acknowledges that:\n+ the Company and its Affiliates are and will be engaged in a number of highly competitive lines of business.\n» the Company and its Affiliates conduct business throughout the United States and in numerous foreign countries;\n» the Company and its Affiliates possess Confidential Information and customer goodwill that provide the Company and its Affiliates with\na significant competitive advantage; and\n+ the Company’s and its Affiliates’ success depends to a substantial extent upon the protection of its Confidential Information (which\nincludes trade secrets and customer lists) and customer goodwill by all of their employees;\n*  Executive has and will continue to have possession of Confidential Information; and\nWHEREAS, if Executive were to leave the Company, the Company and its Affiliates would in all fairness need certain protections to prevent\ncompetitors from gaining an unfair competitive advantage over them.\nNOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Term of Agreement. This Agreement will remain in effect from the date hereof until the date the Executive’s employment with the Company\nterminates for any reason. The following provisions shall survive termination or expiration of this Agreement for any reason, to the extent\napplicable and in accordance with their terms: Sections 4, 5, 6 and 8. Executive’s employment is “at-will”, and nothing contained herein shall\nbe deemed a guarantee of employment with Company for any period of time.\n \n2. Capacity and Performance.\n(a) During the term hereof, the Executive shall serve the Company in the position to which he or she is appointed from time to time.\nExecutive’s position as of the date of this Agreement is [ ]. During the term hereof, Executive will be employed by the Company on a\nfull-time basis and shall perform the duties and responsibilities of his or her\n4. position and such other duties and responsibilities on behalf of the Company and its Affiliates, reasonably related to that position, as may be\ndesignated from time to time by the Compensation Committee (the “Compensation Committee”) of the Board of Directors of SAVVIS (the\n“Board”) or other designee.\n(b) During the term hereof, the Executive shall devote his full business time and his best efforts, business judgment, skill and knowledge\nto the advancement of the business and interests of the Company and its Affiliates and to the discharge of his duties and responsibilities\nhereunder. The Executive shall not engage in any other business activity or serve in any industry, trade, professional, governmental or\nacademic position during the term of this Agreement, except as may otherwise be expressly approved in advance by the Compensation\nCommittee or other designee in writing.\nCompensation and Benefits. As compensation for all services performed by the Executive under and during the term hereof, and subject to\nperformance of the Executive’s duties and the fulfillment of the obligations of the Executive to the Company and its Affiliates, pursuant to this\nAgreement or otherwise:\n(a) Base Salary. During the term hereof, the Company shall pay the Executive a base salary, which as of the date of execution of this\nAgreement is set at the rate of [ Dollars ($ ) ] per annum, payable in accordance with the regular payroll practices of the\nCompany for its executives subject to adjustment from time to time by the Compensation Committee, in its sole discretion. Such base salary,\nas from time to time adjusted, is hereafter referred to as the “Base Salary”.\n(b) Incentive and Bonus Compensation.\n(i) For service rendered during the Company’s fiscal year ending December 31, [ ], the Executive will be eligible, at the\nCompensation Committee’s discretion, to receive a bonus payment equal to [ 1% of Base Salary, payable in accordance with the\nterms of the Company’s [ 1 Annual Incentive Plan.\n(ii) Commencing on January 1, [ ] and for the remainder of the term hereof, the Executive shall be entitled to participate in the\nCompany’s Annual Incentive Plan (the “Annual Incentive Plan”) on terms to be determined annually by the Compensation Committee\nprior to the commencement of each fiscal year. Nothing contained herein shall obligate the Company to continue the Annual Incentive\nPlan. Any compensation paid to the Executive under the Annual Incentive Plan shall be in addition to the Base Salary. Except as\notherwise expressly provided under the terms of the Annual Incentive Plan or this Agreement, the Executive shall not be entitled to earn\nbonus or other compensation for services rendered to the Company.\n[Insert equity grant provisions if applicable.]\nTermination of Employment.\n(a) Executive’s employment with the Company may be terminated as follows:\n(i) by the Company with Cause;\n(ii) by the Company without Cause;\n(iii) upon Executive’s death or Disability (defined herein);\n(iv) by Executive with Good Reason; or\n(v) by Executive without Good Reason.\n(b) Upon termination of Executive’s employment for any reason, all rights and obligations under this Agreement shall cease, except as\nreferred to in Section 1 and except that Executive shall be entitled to (i) payment of his or her salary through the effective date of termination,\nplus (ii) payment of any other amounts owed but not yet paid to Executive as of the effective date of termination (such as reimbursement for\nbusiness expenses incurred prior to termination in accordance with the Company’s expense and reimbursement policy, plus (iii) any other\nbenefits to which Executive may be entitled which provide for payment or other benefits following termination (such as under disability\ninsurance plan).\n(c) Severance Benefits.\n(i) If the Executive is subject to termination pursuant to an Involuntary Termination (as defined in Section 7), then in addition to\nany amounts / benefits owed under Section 4(b), the Company shall pay the Executive: (x) an amount equal to 100% of his or her then\ncurrent annual Base Salary for one year (the “Severance Payment”) and (y) at the discretion of the Compensation Committee, a pro-rated\nportion of the bonus that the Executive would be entitled to receive under the Company’s Annual Incentive Plan (“Bonus™). The pro-\nrated Bonus will be calculated by the compensation committee by extrapolating the Company’s anticipated full year performance based\non the current year performance to date and then multiplying the resulting full year extrapolation by a fraction the numerator of which is\nthe number of days during the calendar year the Executive worked in the year of Involuntary Termination up to the termination date and\nthe denominator of which is 365. Any such Bonus shall be paid not later than 30 days after the date of the Involuntary Termination. If the\nExecutive is subject to an Involuntary Termination prior to March 31 of any calendar year, and has, therefore, not yet received payment\nfor the prior year under the Annual Incentive Plan, then the Executive will also be entitled to such payment under the Annual Incentive\nPlan as he would otherwise have been entitled to receive had he remained employed on March 31 of the year of Involuntary Termination.\nAny such Bonus shall be paid at the time bonuses are paid to other employees under the Annual Incentive Plan and not later than the end\nof the year during which the Involuntary Termination occurred.\n(ii) Further, if and only if the Involuntary Termination occurs within twelve (12) months after a Change in Control (a “Change in\nControl Termination™), then (x) in addition to the Severance Payment, any stock awards, stock options, stock appreciation rights or other\nequity-based awards (each an “Equity Award”) that were outstanding immediately prior to the effective date of the Change in Control\nTermination shall, unless such Equity Awards are no longer outstanding, to the extent not then vested, fully vest and become exercisable\nas of such date and the Executive shall have the right to exercise any such Equity Award until the earlier to occur of (A) twelve\n(12) months from the date of the Change in Control Termination and (B) the expiration date of such Equity Award as set forth in the\nagreement evidencing such award; and (y) the Executive shall be entitled to the Bonus, which shall be paid not later than 30 days after\nthe date of the Change in Control Termination.\n(d) Timing of and Conditions to Payment. Any Severance Payment due under Section 4(c) shall be paid bi-monthly, in accordance with\nthe Company’s standard payroll procedures, for the twelve (12) month period following the effective date of termination. Any other provision\nof this Agreement notwithstanding, no severance benefits shall be payable unless and until each of the following has occurred:\n(i) the Executive has executed and delivered to the Company a general release (in a form prescribed by the Company) of all known\nand unknown claims that he or she may then have against the Company or persons affiliated with the Company and has agreed not to\nprosecute any legal action or other proceeding based upon any of such claims;\n(ii) the Executive has, no later than the effective date of termination, delivered to the Company a resignation from all offices,\ndirectorships and fiduciary positions with the Company and it affiliates;\n(iii) the effective date of the Executive’s Involuntary Termination;\n(iv) the date of the Company’s receipt of the Executive’s executed General Release, which must be no later than 21 days following\nthe effective date of termination (except in the case of group terminations, such time period shall be 45 days);\n(v) the expiration of any rescission or revocation period applicable to the Executive’s executed General Release; and\n(vi) the Executive is and continues to be in compliance with all of his or her obligations under this Agreement, including, without\nlimitation, Sections 5 and 6, and under the agreements and other documents referred to or incorporated by reference herein.\nThe Company will commence payment of the Severance Payment within ten (10) business days of satisfaction / occurrence of the last of the\nforegoing items (1) through (5). For purposes of Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), an installment\nSeverance Payment shall be deemed to be made as of the applicable bimonthly payroll date following the Executive’s effective date of termination if\nmade by the 15th day of the third calendar month following such payroll date.\n(e) Health Care Benefit. Following an Involuntary Termination, the Company will pay to the Executive a monthly taxable cash payment\nin an amount equal (on an after tax basis, taking into account federal, state, local and foreign taxes) to the monthly COBRA (Consolidated\nOmnibus Budget Reconciliation Act) premium(s) in effect as of immediately prior to the Executive’s Involuntary Termination for the most\nexpensive level of coverage under the group health plan(s) applicable to the Executive at the time of the Executive’s Involuntary Termination.\nThe monthly payments will commence with the first month following the Executive’s Involuntary Termination and will terminate upon the\nearlier of (a) the Executive having received twelve monthly payments and (b) the Executive becoming re-employed and entitled to coverage\nunder the new employer’s group health plan. The Executive agrees to notify the Company in writing immediately upon becoming re-employed\nand entitled to coverage under a new employer’s group health plan.\n(f) Withholding Taxes. All payments made under this Agreement shall be subject to reduction to reflect taxes or other charges required to\nbe withheld by law.\n(g) Section 409A Savings Clause. This Agreement is intended to comply with the requirements of Section 409A of the Code (including\nthe exceptions thereto) to the extent applicable, and the Agreement shall be interpreted in a manner consistent with such requirements.\nNotwithstanding any other provision hereof, if any provision of the Agreement conflicts with the requirements of Section 409A of the Code (or\nan exception thereto), such provision shall be deemed reformed so as to comply with the requirements of Section 409A of the Code (or an\nexception thereto) and shall be interpreted and applied accordingly.\nAmounts payable other than those expressly payable on a deferred or installment basis, will be paid as promptly as practical and, in any event,\nwithin 2 1/2 months after the end of the year in which such amount was earned.\nAny amount that the Executive is entitled to be reimbursed will be reimbursed as promptly as practical and in any event not later than the last\nday of the calendar year after the calendar year in which the expenses are incurred, and the amount of the expenses eligible for reimbursement during\nany calendar year will not affect the amount of expenses eligible for reimbursement in any other calendar year.\nIf at the time of separation from service (i) the Executive is a specified employee (within the meaning of Section 409A and using the\nidentification methodology selected by the Company from time to time), and (ii) the Company makes a good faith determination that an amount\npayable by the Company to the Executive constitutes deferred compensation (within the meaning of Section 409A) the payment of which is required\nto be delayed pursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A, then the\nCompany will not pay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on the first business day after\nsuch six-month period together with interest for the period of delay, compounded annually, equal to the prime rate (as published in the Wall Street\nJournal) in effect as of the dates the payments should otherwise have been provided.\n5. Confidential Information.\n(a) The Executive acknowledges that the Company and its Affiliates continually develop Confidential Information, that the Executive\nmay develop Confidential Information for the Company or its Affiliates and that the Executive will have possession of and access to\nConfidential Information during the course of employment. The Executive will comply with the policies and procedures of the Company and\nits Affiliates for protecting Confidential Information, and shall not disclose to any Person or use, other than as required by applicable law or\nfor the proper performance of his duties and responsibilities to the Company and its Affiliates, any Confidential Information obtained by the\nExecutive incident to his employment or other association with the Company or any of its Affiliates. The Executive understands that this\nrestriction shall continue to apply after his employment terminates, regardless of the reason for such termination. The confidentiality obligation\nunder this Section 5 shall not apply to information which is generally known or readily available to the public at the time of disclosure or\nbecomes generally known through no wrongful act on the part of the Executive or any other Person having an obligation of confidentiality to\nthe Company or any of its Affiliates.\n(b) All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the\nCompany or its Affiliates and any copies, in whole or in part, thereof (the “Documents”), whether or not prepared by the Executive, shall be\nthe sole and exclusive property of the Company and its Affiliates. The Executive shall safeguard all Documents and shall surrender to the\nCompany at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then\nin the Executive’s possession or control.\n(c) In the event that Executive is requested or becomes legally compelled (by oral questions, interrogatories, requests for information or\ndocuments, deposition, subpoena, civil investigative\ndemand or similar process) to disclose any of the Confidential Information, the Executive shall, where permitted under applicable law, rule or\nregulation, provide written notice to the Company promptly after such request so that the Company may, at its expense, seek a protective order\nor other appropriate remedy (the Executive agrees to reasonably cooperate with the Company in connection with seeking such order or other\nremedy). In the event that such protective order or other remedy is not obtained, the Executive shall furnish only that portion of the\nConfidential Information that the Executive is advised by counsel is required, and shall exercise reasonable efforts to obtain assurance that\nconfidential treatment will be accorded such Confidential Information. In addition, the Executive may disclose Confidential Information in the\ncourse of inspections, examinations or inquiries by federal or state regulatory agencies and self regulatory organizations that have requested or\nrequired the inspection of records that contain the Confidential Information provided that the Executive exercises reasonable efforts to obtain\nreliable assurances that confidential treatment will be accorded to such Confidential Information. To the extent such information is required to\nbe disclosed and is not accorded confidential treatment as described in the immediately preceding sentence, it shall not constitute “Confidential\nInformation” under this Agreement.\nCertain Covenants.\n(a) The Executive agrees that, during his employment with the Company, he or she will not undertake any outside activity, whether or not\ncompetitive with the business of the Company or its Affiliates that could reasonably give rise to a conflict of interest or otherwise materially\ninterfere with his or her duties and obligations to the Company or any of its Affiliates.\n(b) During the term of Executive’s employment and for twelve (12) months following termination of his or her employment for any\nreason (the “Restricted Period”), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent,\nemployee, co-venturer or otherwise:\n(i) compete with the Company or any of its Affiliates within the geographic area in which the Company does business or undertake\nany planning for any business competitive with the Company or any of its Affiliates. Specifically, but without limiting the foregoing, the\nExecutive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company\nor any of its Affiliates as conducted or under consideration at any time during the Executive’s employment, and further agrees not to\nwork or provide services, in any capacity, whether as an employee, independent contractor or otherwise, whether with or without\ncompensation, to any Person who is engaged in any business that is competitive with the business of the Company or any of its Affiliates\nfor which the Executive has provided services. The foregoing, however, shall not prevent the Executive’s passive ownership of two\npercent (2%) or less of the equity securities of any publicly traded company. Notwithstanding any provision in this Agreement, section 6.\n(b) (i) shall not be deemed to create post-employment non-competition restrictions on the Executive if the Executive’s primary residence\nis in the state of California; or\n(ii) solicit or encourage any customer of the Company or any of its Affiliates to terminate or diminish its relationship with them; or\n(iii) seek to persuade any such customer of the Company or any of its Affiliates to conduct with anyone else any business or\nactivity which such customer conducts with the Company or any of its Affiliates; provided that these restrictions shall apply only if the\nExecutive\nhas performed work for such Person during his employment with the Company or one of its Affiliates or has been introduced to, or\notherwise had contact with, such Person as a result of his employment or other associations with the Company or one of its Affiliates or\nhas had access to Confidential Information which would assist in the Executive’s solicitation of such Person.\n(iv) solicit for hiring any employee or independent contractor of the Company or any of its Affiliates or seek to persuade any\nemployee or independent contractor of the Company or any of its Affiliates to discontinue or diminish such employee or independent\ncontractor’s relationship with the Company or any of its Affiliates.\n(c) Cooperation and Non-Disparagement. The Executive agrees that, during the Restricted Period, he or she shall cooperate with the\nCompany in every reasonable respect and shall use his or her best efforts to assist the Company with the transition of the Executive’s duties to\nhis or her successor. The Executive further agrees that, during the Restricted Period, he or she shall not in any way or by any means disparage\nthe Company, the members of the Company’s Board or the Company’s officers and employees.\n(d) Assignment of Inventions. The Executive shall promptly and fully disclose all Work Product (defined herein) to the Company.\nExecutive hereby assigns to the Company all of Executive’s rights, title, and interest (including but not limited to all patent, trademark,\ncopyright and trade secret rights) in and to all work product prepared by Executive, made or conceived in whole or in part by Executive within\nthe scope of Executive’s employment by the Company or within six (6) months thereafter, or that relate directly to or involve the use of\nConfidential Information (“Work Product”). Executive further acknowledges and agrees that all copyrightable Work Product prepared by\nExecutive within the scope of Executive’s employment with the Company are “works made for hire” and, consequently, that the Company\nowns all copyrights thereto. The Executive agrees to execute any and all applications for domestic and foreign patents, copyrights or other\nproprietary rights and to do such other acts (including without limitation the execution and delivery of instruments of further assurance or\nconfirmation) requested by the Company to assign the Work Product to the Company and to permit the Company to enforce any patents,\ncopyrights or other proprietary rights to the Work Product. The Executive will not charge the Company for time spent in complying with these\nobligations. Notwithstanding the foregoing, any provision in this Agreement which provides that Executive shall assign, offer to assign, any of\nhis or her rights in an invention to the Company shall not apply to an invention that the Executive developed entirely on his or her own time\nwithout using the Company’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(i) relate at the time of conception or reduction to practice of the invention to the Company’s business or actual demonstrably\nanticipated research or development of the Company; or\n(ii) result from any work performed by the Executive for the Company.\n(e) Acknowledgement Regarding Restrictions. The Company has expended a great deal of time, money and effort to develop and\nmaintain its confidential business information which, if misused or disclosed, could be very harmful to its business and could cause the\nCompany to be at a competitive disadvantage in the marketplace. The Company would not be willing to proceed with the execution of this\nAgreement but for the Executive’s signing and agreeing to abide by the terms of this Agreement. The Executive recognizes and acknowledges\nthat he or she has and will have access to Confidential Information of the Company, and that the Company, in all fairness, needs certain\nprotection in order to ensure that the Executive does not misappropriate or misuse any trade secret or other Confidential Information or take\nany other action which could result in a loss of the goodwill of the\nCompany and, more generally, to prevent the Executive from having or providing others with an unfair competitive advantage over the\nCompany. To that end, the Executive acknowledges that the foregoing restrictions, both separately and in total, are reasonable and enforceable\nin view of the Company’s legitimate interests in protecting the goodwill, confidential information and customer loyalty of its business. To the\nextent that any provision of this Agreement is adjudicated to be invalid or unenforceable because it is somehow overbroad or otherwise\nunreasonable, that provision shall not be void but rather shall be limited only to the extent required by applicable law and enforced as so\nlimited to the greatest extent allowed by law, and the validity or enforceability of the remaining provisions of this Agreement shall be\nunaffected and such adjudication shall not affect the validity or enforceability of such remaining provisions.\n(f) Right to Injunctive Relief. The Executive further agrees that in the event of any breach hereof the harm to the Company will be\nirreparable and without adequate remedy at law and, therefore, that injunctive relief with respect thereto will be appropriate. In the event of a\nbreach or threatened breach of any of the Executive’s obligations under the terms of Sections 5 or 6 hereof, the Company shall be entitled, in\naddition to any other legal or equitable remedies it may have in connection therewith (including any right to damages that it may suffer), to\ntemporary, preliminary and permanent injunctive relief restraining such breach or threatened breach (without the obligation to post bond),\ntogether with reasonable attorney’s fees incurred in preliminarily enforcing its rights hereunder. The Executive specifically agrees that if there\nis a question as to the enforceability of any of the provisions of Sections 5 or 6 hereof, the Executive will not engage in any conduct\ninconsistent with or contrary to such Section until after the question has been resolved by a final judgment of a court of competent jurisdiction.\nDefinitions.\n(a) Definition of “Affiliate.” For all purposes under this Agreement, “Affiliate” shall mean, with respect to any Person, all Persons\ndirectly or indirectly controlling, controlled by or under common control with such Person, where control may be by either management\nauthority, contract or equity interest. As used in this definition, “control” and correlative terms have the meanings ascribed to such words in\nRule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).\n(b) Definition of “Cause.” For all purposes under this Agreement, “Cause” shall mean any of the following (i) the Executive’s willful and\ncontinued failure to perform substantially the duties of his/her responsibilities (other than due to physical or mental incapacity); (ii) the\nExecutive’s unauthorized use or disclosure of trade secrets which causes substantial harm to the Company; (iii) the Executive’s engaging in\nillegal conduct that is likely to be injurious to the Company; (iv) the Executive’s acts of fraud, dishonesty, or gross misconduct, or gross\nnegligence in connection with the business of the Company; (v) the Executive’s conviction of a felony; (vi) the Executive’s engaging in any act\nof moral turpitude reasonably likely to substantially and adversely affect the Company or its business; (vii) the Executive engaging in the\nillegal use of a controlled substance or using prescription medications unlawfully; (viii) the Executive’s abuse of alcohol; or (ix) the breach by\nthe Executive of a material term of this Agreement, including, without limitation, his or her obligations under Sections 5 or 6.\n(c) Definition of “Change in Control.” For all purposes under this Agreement, “Change in Control” means the occurrence of any of the\nfollowing:\n(A) any Person (as defined herein) becomes the beneficial owner directly or indirectly (within the meaning of Rule 13d--3 under\nthe Exchange Act) of more than 50% of SAVVIS’ then outstanding voting securities (measured on the basis of voting power); or\n(B) Individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a\nmajority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or\nnomination for election by SAVVIS’ shareholders, was approved by a vote of at least a majority of the directors then comprising the\nIncumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose,\nany such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the\nelection or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the\nBoard; or\n(C) the closing of an agreement of merger or consolidation with any other corporation or business entity, other than (x) a merger or\nconsolidation which would result in the voting securities of SAVVIS outstanding immediately prior thereto continuing to represent\n(either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership\nof any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 50% of the combined voting\npower of the voting securities of SAVVIS or such surviving entity outstanding immediately after such merger or consolidation, or (y) a\nmerger or consolidation effected to implement a recapitalization of SAVVIS (or similar transaction) in which no Person acquires more\nthan 50% of the combined voting power of SAVVIS’ then outstanding securities;\n(D) the liquidation or dissolution of SAVVIS or the closing of a sale or disposition by SAVVIS of all or substantially all of its\nassets.\nFor purposes of this paragraph, “Person” means any individual, entity or group within the meaning of Section 3(a)(9) of the Exchange Act, as\nmodified and used in Sections 13(d) and 14(d) thereof; however, a Person shall not include (aa) SAVVIS or any of its subsidiaries, (bb) a trustee or\nother fiduciary holding securities under an employee benefit plan of the Company, (cc) an underwriter temporarily holding securities pursuant to an\noffering of such securities, (dd) a corporation owned, directly or indirectly, by the shareholders of SAVVIS in substantially the same proportions as\ntheir ownership of SAVVIS common stock, (ee) any person or entity or group acquiring securities of SAVVIS pursuant to an issuance of securities\napproved by the Board, or (ff) any of the following entities or their affiliates: Welsh, Carson, Anderson & Stowe VIII L.P. and WCAS Management\nCorporation.\n(d) Definition of “Confidential Information.” For all purposes under this Agreement, “Confidential Information” shall mean any and all\ninformation of the Company and its Affiliates that is not generally known by others with whom they compete or do business, or with whom\nany of them plans to compete or do business and any and all information, publicly known in part or not, which, if disclosed by the Company or\nits Affiliates would assist in competition against them. Confidential Information includes without limitation such information relating to\n(i) trade secrets, the development, research, testing, manufacturing, marketing and financial activities of the Company and its Affiliates, (ii) the\nProducts, (iii) the costs, sources of supply, financial performance and strategic plans of the Company and its Affiliates, (iv) the identity and\nspecial needs of the customers of the Company and its Affiliates and (v) client lists and the people and organizations with whom the Company\nand its Affiliates have business relationships and the substance of those relationships. Confidential Information also includes any information\nthat the Company or any of its Affiliates have received, or may receive hereafter, belonging to customers or others with any understanding,\nexpress or implied, that the information would not be disclosed.\n(e) Definition of “Disability.” For all purposes under this Agreement, “Disability” shall mean the Executive becoming disabled during\nhis employment hereunder through any illness, injury, accident or condition of either a physical or psychological nature and, as a result, is\nunable to perform substantially all\nof his duties and responsibilities hereunder, notwithstanding the provision of any reasonable accommodation, for one hundred and eighty\n(180) days during any period of three hundred and sixty-five (365) consecutive calendar days.\n(f) Definition of “Good Reason.” For all purposes under this Agreement, “Good Reason” shall mean the occurrence of any of the\nfollowing events: (i) a change in the Executive’s position that materially reduces his or her authority and level of responsibility as an officer of\nthe Company (provided that it is understood that the Chief Executive Officer of SAVVIS as a matter of management flexibility may direct a\nchange in the Executive’s reporting relationships or job title or a transfer of the Executive to a different officer position and such change or\ntransfer shall be not deemed to result in a reduction in the Executive’s authority or level of responsibility unless it is so substantial that a\nreasonable executive would feel compelled to resign under the circumstances), (ii) a material reduction in his or her level of compensation\n(including base salary and target bonus) or (iii) a relocation of his or her employment more than fifty (50) miles from the metropolitan area in\nwhich the Executive’s office is located at the time of resignation; provided, however, that in the case of the preceding clauses (i), (ii) and (iii),\nGood Reason shall only exist if effected without the Executive’s consent and is not a result of a Company-wide or department-wide policy or\npractice. Notwithstanding the foregoing, Good Reason shall only exist if (A) the Executive provides written notice to the Company within\nninety (90) days of the occurrence of the event or condition constituting Good Reason, (B) the Company is provided a period of thirty\n(30) days to cure the event or condition giving rise to Good Reason (the “Cure Period”) and fails to do so prior to the end of the Cure Period,\nand (C) the Executive terminates employment within thirty (30) days after the end of the Cure Period.\n(g) Definition of “Intellectual Property.” For all purposes under this Agreement, “Intellectual Property” shall mean inventions,\ndiscoveries, developments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or\nconstituting trade secrets) conceived, made, created, developed or reduced to practice by the Executive (whether alone or with others, whether\nor not during normal business hours or on or off Company premises) during the Executive’s employment and during the period of six\n(6) months immediately following termination of his employment that relate to either the Products or any prospective activity of the Company\nor any of its Affiliates or that make use of Confidential Information or any of the equipment or facilities of the Company or any of its\nAffiliates.\n(h) Definition of “Involuntary Termination.” For all purposes under this Agreement, “Involuntary Termination” shall mean termination of\nemployment under Section 4(a)(ii) or Section 4(a)(iv).\n(i) Definition of “Person.” For all purposes under this Agreement, “Person” shall mean an individual, a corporation, a limited liability\ncompany, an association, a partnership, an estate, a trust and any other entity or organization.\n(j) Definition of “Products.” For all purposes under this Agreement, “Products” shall mean all products planned, researched, developed,\ntested, manufactured, sold, licensed, leased or otherwise distributed or put into use by the Company or any of its Affiliates, together with all\nservices provided or planned by the Company or any of its Affiliates, during the Executive’s employment.\nMiscellaneous Provisions.\n(a) Conflicts. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Company document,\nthen the provisions of this Agreement will control. This Agreement will supersede any prior agreement between the Executive and the\nCompany with respect to the subject matters contained herein and may be amended only by a writing signed by an officer of the Company\n(other than the Executive).\n(b) Notice. Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been\nduly given when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid or\ndeposited with an overnight courier, with shipping charges prepaid. In the case of the Executive, mailed notices shall be addressed to him or\nher at the home address which he or she most recently communicated to the Company in writing. In the case of SAVVIS or the Company,\nmailed notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of SAVVIS’ Senior Vice\nPresident and General Counsel.\n(c) Waiver. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is\nagreed to in writing and signed by the Executive and by an authorized officer of the Company (other than the Executive). No waiver by either\nparty of any breach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of\nany other condition or provision or of the same condition or provision at another time.\n(d) Severability. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision hereof, which shall remain in full force and effect.\n(e) No Retention Rights. Nothing in this Agreement shall confer upon the Executive any right to continue in service for any period of\nspecific duration or to interfere with or otherwise restrict in any way the rights of the Company or any subsidiary of the Company or of the\nExecutive, which rights are hereby expressly reserved by each, to terminate his or her service at any time and for any reason, with or without\nCause and with or without notice.\n(f) Choice of Law; Venue. The parties acknowledge that they each have, and will continue to have, substantial contacts with the State of\nMissouri, where the Company has its headquarters. This Agreement has been drafted and negotiated in the State of Missouri. To ensure that\nany disputes arising under this Agreement are resolved in accordance with the parties’ expectations, this Agreement shall be governed by and\nconstrued under the laws of the State of Missouri and applicable federal laws. The substantive law (and statutes of limitations) of the State of\nMissouri shall be applied to disputes arising under this Agreement, as the parties agree that their expectations with respect to the scope and\nenforcement of this Agreement are based on Missouri law, and that Missouri law is therefore more applicable to such disputes. Should\nMissouri law be found not to apply to this Agreement for any reason, the parties agree that the severance benefit described in Section 4 shall\nnot be payable, the provisions of Section 4 notwithstanding. Each party agrees that any proceeding relating to this Agreement shall be brought\nin the state courts of Missouri located in St. Louis County or the federal courts of the District of Missouri, Eastern Division. Each party hereby\nconsents to personal jurisdiction in any such action brought in any such Missouri court, consents to service of process by the methods for\nnotice under Section 8(b) hereof made upon such party, and such party’s agent and waives any objection to venue in any such Missouri court\nor to any claim that any such Missouri court is an inconvenient forum.\n \n(g) Attorney’s Fees. In the event of any action by either party to enforce or interpret the terms of this Agreement, the prevailing party\nwith respect to any particular claim shall (in addition to other relief to which it or he may be awarded) be entitled to recover his or its\nattorney’s fees in a reasonable amount incurred in connection with such claim.\n \n(h) Successors. This Agreement and all rights of the parties hereunder shall inure to the benefit of, and be enforceable by, such parties’\npersonal or legal representatives, executors, administrators, successors, heirs and assigns, as applicable.\n(i) Entire Agreement. This Agreement, together with the other agreements and any documents, instruments and certificates referred to\nherein, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes any and all prior\ndiscussions, negotiations, proposals, undertakings, understandings and agreements, whether written or oral, with respect to the subject matter\ncontained herein.\nIN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as of the\nday and year first above written. SAVVIS, INC. EXECUTIVE\nBy: By:\nName: Name:\nTitle:	EX-10.3 2 dex103.htm FORM OF EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-\nCOMPETITION AGREEMENT\nEXHIBIT 10.3\nEMPLOYMENT,. CONFIDENTIALITY,. SEVERANCE AND NON-COMPETITION AGREEMENT\nTHIS EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT (this "Agreement") is\nentered into as of [\n] by and between [\n(the "Executive") and SAVVIS, INC., a Delaware corporation, ("SAVVIS") and all\nits subsidiaries (collectively referred to as the "Company"). Capitalized terms used but not defined herein have the respective meanings ascribed to\nsuch terms in Section 7 of this Agreement.\nWHEREAS, Executive acknowledges that:\nthe Company and its Affiliates are and will be engaged in a number of highly competitive lines of business.\nthe Company and its Affiliates conduct business throughout the United States and in numerous foreign countries;\nthe Company and its Affiliates possess Confidentia Information and customer goodwill that provide the Company and its Affiliates with\na significant competitive advantage; and\nthe Company's and its Affiliates' success depends to a substantial extent upon the protection of its Confidential Information (which\nincludes trade secrets and customer lists) and customer goodwill by all of their employees;\nExecutive has and will continue to have possession of Confidential Information; and\nWHEREAS, if Executive were to leave the Company, the Company and its Affiliates would in all fairness need certain protections to prevent\ncompetitors from gaining an unfair competitive advantage over them.\nNOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, the parties agree as follows:\n1.\nTerm of Agreement This Agreement will remain in effect from the date hereof until the date the Executive's employment with the Company\nterminates for any reason. The following provisions shall survive termination or expiration of this Agreement for any reason, to the extent\napplicable and in accordance with their terms: Sections 4, 5, 6 and 8. Executive's employment is "at-will", and nothing contained herein shall\nbe deemed a guarantee of employment with Company for any period of time.\n2.\nCapacity and Performance.\n(a) During the term hereof, the Executive shall serve the Company in the position to which he or she is appointed from time to time.\nExecutive's position as of the date of this Agreement is [\n]. During the term hereof, Executive will be employed by the Company on\na\nfull-time basis and shall perform the duties and responsibilities of his or her\nposition and such other duties and responsibilities on behalf of the Company and its Affiliates, reasonably related to that position, as may\nbe\ndesignated from time to time by the Compensation Committee (the "Compensation Committee") of the Board of Directors of SAVVIS (the\n"Board") or other designee.\n(b) During the term hereof, the Executive shall devote his full business time and his best efforts, business judgment, skill and knowledge\nto the advancement of the business and interests of the Company and its Affiliates and to the discharge of his duties and responsibilities\nhereunder. The Executive shall not engage in any other business activity or serve in any industry, trade, professional, governmental or\nacademic position during the term of this Agreement, except as may otherwise be expressly approved in advance by the Compensation\nCommittee or other designee in writing.\n3.\nCompensation and Benefits. As compensation for all services performed by the Executive under and during the term hereof, and subject to\nperformance of the Executive's duties and the fulfillment of the obligations of the Executive to the Company and its Affiliates, pursuant to this\nAgreement or otherwise:\n(a) Base Salary.. During the term hereof, the Company shall pay the Executive a base salary, which as of the date of execution of this\nAgreement is set at the rate of I\nDollars ($\n) 1 per annum, payable in accordance with the regular payroll practices of the\nCompany for its executives subject to adjustment from time to time by the Compensation Committee, in its sole discretion. Such base salary,\nas from time to time adjusted, is hereafter referred to as the "Base Salary".\n(b) Incentive and Bonus Compensation.\n(i) For service rendered during the Company's fiscal year ending December 31, [ ], the Executive will be eligible, at the\nCompensation Committee's discretion, to receive a bonus payment equal to\n]% of Base Salary, payable in accordance with the\nterms of the Company's\n1 Annual Incentive Plan.\n(ii) Commencing on January 1, [ 1 and for the remainder of the term hereof, the Executive shall be entitled to participate in the\nCompany's Annual Incentive Plan (the "Annual Incentive Plan") on terms to be determined annually by the Compensation Committee\nprior to the commencement of each fiscal year. Nothing contained herein shall obligate the Company to continue the Annual Incentive\nPlan. Any compensation paid to the Executive under the Annual Incentive Plan shall be in addition to the Base Salary. Except as\notherwise expressly provided under the terms of the Annual Incentive Plan or this Agreement, the Executive shall not be entitled to earn\nbonus or other compensation for services rendered to the Company.\n[Insert equity grant provisions if applicable.]\n4.\nTermination of Employment.\n(a) Executive's employment with the Company may be terminated as follows:\n(i) by the Company with Cause;\n(ii) by the Company without Cause;\n(iii) upon Executive's death or Disability (defined herein);\n(iv) by Executive with Good Reason; or\n(v) by Executive without Good Reason.\n(b) Upon termination of Executive's employment for any reason, all rights and obligations under this Agreement shall cease, except as\nreferred to in Section 1 and except that Executive shall be entitled to (i) payment of his or her salary through the effective date of termination,\nplus (ii) payment of any other amounts owed but not yet paid to Executive as of the effective date of termination (such as reimbursement for\nbusiness expenses incurred prior to termination in accordance with the Company's expense and reimbursement policy, plus (iii) any other\nbenefits to which Executive may be entitled which provide for payment or other benefits following termination (such as under disability\ninsurance plan).\n(c) Severance Benefits.\n(i) If the Executive is subject to termination pursuant to an Involuntary Termination (as defined in Section 7), then in addition to\nany amounts benefits owed under Section 4(b), the Company shall pay the Executive: (x) an amount equal to 100% of his or her then\ncurrent annual Base Salary for one year (the "Severance Payment") and (y) at the discretion of the Compensation Committee, a pro-rated\nportion of the bonus that the Executive would be entitled to receive under the Company's Annual Incentive Plan ("Bonus"). The pro-\nrated Bonus will be calculated by the compensation committee by extrapolating the Company's anticipated full year performance based\non\nthe\ncurrent\nyear\nperformance\nto\ndate\nand\nthen\nmultiplying\nthe\nresulting\nfull\nyear\nextrapolation\nby\na\nfraction\nthe\nnumerator\nof\nwhich\nis\nthe number of days during the calendar year the Executive worked in the year of Involuntary Termination up to the termination date and\nthe denominator of which is 365. Any such Bonus shall be paid not later than 30 days after the date of the Involuntary Termination. If the\nExecutive is subject to an Involuntary Termination prior to March 31 of any calendar year, and has, therefore, not yet received payment\nfor the prior year under the Annual Incentive Plan, then the Executive will also be entitled to such payment under the Annual Incentive\nPlan as he would otherwise have been entitled to receive had he remained employed on March 31 of the year of Involuntary Termination.\nAny such Bonus shall be paid at the time bonuses are paid to other employees under the Annual Incentive Plan and not later than the end\nof the year during which the Involuntary Termination occurred.\n(ii) Further, if and only if the Involuntary Termination occurs within twelve (12) months after a Change in Control (a "Change in\nControl Termination"), then (x) in addition to the Severance Payment, any stock awards, stock options, stock appreciation rights or other\nequity-based awards (each an "Equity Award") that were outstanding immediately prior to the effective date of the Change in Control\nTermination shall, unless such Equity Awards are no longer outstanding, to the extent not then vested, fully vest and become exercisable\nas of such date and the Executive shall have the right to exercise any such Equity Award until the earlier to occur of (A) twelve\n(12) months from the date of the Change in Control Termination and (B) the expiration date of such Equity Award as set forth in\nthe\nagreement evidencing such award; and (y) the Executive shall be entitled to the Bonus, which shall be paid not later than 30 days after\nthe date of the Change in Control Termination.\n(d) Timing of and Conditions to Payment Any Severance Payment due under Section 4(c) shall be paid bi-monthly, in accordance with\nthe Company's standard payroll procedures, for the twelve (12) month period following the effective date of termination. Any other provision\nof this Agreement notwithstanding, no severance benefits shall be payable unless and until each of the following has occurred:\n(i) the Executive has executed and delivered to the Company a general release (in a form prescribed by the Company) of all known\nand unknown claims that he or she may then have against the Company or persons affiliated with the Company and has agreed not to\nprosecute any legal action or other proceeding based upon any of such claims;\n(ii) the Executive has, no later than the effective date of termination, delivered to the Company a resignation from all offices,\ndirectorships and fiduciary positions with the Company and it affiliates;\n(iii) the effective date of the Executive's Involuntary Termination;\n(iv) the date of the Company's receipt of the Executive's executed General Release, which must be no later than 21 days following\nthe effective date of termination (except in the case of group terminations, such time period shall be 45 days);\n(v) the expiration of any rescission or revocation period applicable to the Executive's executed General Release; and\n(vi) the Executive is and continues to be in compliance with all of his or her obligations under this Agreement, including, without\nlimitation, Sections 5 and 6, and under the agreements and other documents referred to or incorporated by reference herein.\nThe Company will commence payment of the Severance Payment within ten (10) business days of satisfaction / occurrence of the last of the\nforegoing items (1) through (5). For purposes of Section 409A of the Internal Revenue Code of 1986, as amended ("Code"), an installment\nSeverance Payment shall be deemed to be made as of the applicable bimonthly payroll date following the Executive's effective date of termination if\nmade by the 15th day of the third calendar month following such payroll date.\n(e) Health Care Benefit. Following an Involuntary Termination, the Company will pay to the Executive a monthly taxable cash payment\nin an amount equal (on an after tax basis, taking into account federal, state, local and foreign taxes) to the monthly COBRA (Consolidated\nOmnibus Budget Reconciliation Act) premium(s) in effect as of immediately prior to the Executive's Involuntary Termination for the most\nexpensive level of coverage under the group health plan(s) applicable to the Executive at the time of the Executive's Involuntary Termination.\nThe monthly payments will commence with the first month following the Executive's Involuntary Termination and will terminate upon the\nearlier of (a) the Executive having received twelve monthly payments and (b) the Executive becoming re-employed and entitled to coverage\nunder the new employer's group health plan. The Executive agrees to notify the Company in writing immediately upon becoming re-employed\nand entitled to coverage under a new employer's group health plan.\n(f) Withholding Taxes. All payments made under this Agreement shall be subject to reduction to reflect taxes or other charges required to\nbe withheld by law.\n(g) Section 409A Savings Clause. This Agreement is intended to comply with the requirements of Section 409A of the Code (including\nthe exceptions thereto) to the extent applicable, and the Agreement shall be interpreted in a manner consistent with such requirements.\nNotwithstanding any other provision hereof, if any provision of the Agreement conflicts with the requirements of Section 409A\nof\nthe\nCode\n(or\nan exception thereto), such provision shall be deemed reformed so as to comply with the requirements of Section 409A of the Code (or an\nexception thereto) and shall be interpreted and applied accordingly.\nAmounts payable other than those expressly payable on a deferred or installment basis, will be paid as promptly as practical and, in any event,\nwithin 21/2 months after the end of the year in which such amount was earned.\nAny amount that the Executive is entitled to be reimbursed will be reimbursed as promptly as practical and in any event not later than the last\nday of the calendar year after the calendar year in which the expenses are incurred, and the amount of the expenses eligible for reimbursement during\nany calendar year will not affect the amount of expenses eligible for reimbursement in any other calendar year.\nIf at the time of separation from service (i) the Executive is a specified employee (within the meaning of Section 409A and using the\nidentification methodology selected by the Company from time to time), and (ii) the Company makes a good faith determination that an amount\npayable by the Company to the Executive constitutes deferred compensation (within the meaning of Section 409A) the payment of which is required\nto be delayed pursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A, then the\nCompany will not pay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on the first business day after\nsuch six-month period together with interest for the period of delay, compounded annually, equal to the prime rate (as published in the Wall Street\nJournal) in effect as of the dates the payments should otherwise have been provided.\n5.\nConfidential Information.\n(a)\nThe Executive acknowledges that the Company and its Affiliates continually develop Confidential Information, that the Executive\nmay develop Confidential Information for the Company or its Affiliates and that the Executive will have possession of and access to\nConfidential Information during the course of employment. The Executive will comply with the policies and procedures of the Company and\nits Affiliates for protecting Confidential Information and shall not disclose to any Person or use, other than as required by applicable law or\nfor the proper performance of his duties and responsibilities to the Company and its Affiliates, any Confidential Information obtained by the\nExecutive incident to his employment or other association with the Company or any of its Affiliates. The Executive understands that this\nrestriction shall continue to apply after his employment terminates, regardless of the reason for such termination. The confidentiality obligation\nunder this Section 5 shall not apply to information which is generally known or readily available to the public at the time of disclosure or\nbecomes generally known through no wrongful act on the part of the Executive or any other Person having an obligation of confidentiality to\nthe Company or any of its Affiliates.\n(b) All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the\nCompany or its Affiliates and any copies, in whole or in part, thereof (the "Documents"), whether or not prepared by the Executive, shall be\nthe\nsole\nand\nexclusive\nproperty of the Company and its Affiliates. The Executive shall safeguard all Documents and shall surrender to\nthe\nCompany at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then\nin the Executive's possession or control.\n(c) In the event that Executive is requested or becomes legally compelled (by oral questions, interrogatories, requests for information or\ndocuments, deposition, subpoena, civil investigative\ndemand or similar process) to disclose any of the Confidential Information, the Executive shall, where permitted under applicable law, rule or\nregulation, provide written notice to the Company promptly after such request so that the Company may, at its expense, seek a protective order\nor other appropriate remedy (the Executive agrees to reasonably cooperate with the Company in connection with seeking such order or other\nremedy). In the event that such protective order or other remedy is not obtained, the Executive shall furnish only that portion of the\nConfidential Information that the Executive is advised by counsel is required, and shall exercise reasonable efforts to obtain assurance that\nconfidential treatment will be accorded such Confidential Information. In addition, the Executive may disclose Confidential Information in the\ncourse of inspections, examinations or inquiries by federal or state regulatory agencies and self regulatory organizations that have requested or\nrequired the inspection of records that contain the Confidential Information provided that the Executive exercises reasonable efforts to obtain\nreliable assurances that confidential treatment will be accorded to such Confidential Information. To the extent such information is required to\nbe disclosed and is not accorded confidential treatment as described in the immediately preceding sentence, it shall not constitute "Confidential\nInformation" under this Agreement.\n6.\nCertain Covenants.\n(a) The Executive agrees that, during his employment with the Company, he or she will not undertake any outside activity, whether or not\ncompetitive with the business of the Company or its Affiliates that could reasonably give rise to a conflict of interest or otherwise materially\ninterfere with his or her duties and obligations to the Company or any of its Affiliates.\n(b) During the term of Executive's employment and for twelve (12) months following termination of his or her employment for any\nreason (the "Restricted Period"), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent,\nemployee, co-venturer or otherwise:\n(i) compete with the Company or any of its Affiliates within the geographic area in which the Company does business or undertake\nany planning for any business competitive with the Company or any of its Affiliates. Specifically, but without limiting the foregoing, the\nExecutive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company\nor any of its Affiliates as conducted or under consideration at any time during the Executive's employment, and further agrees not to\nwork or provide services, in any capacity, whether as an employee, independent contractor or otherwise, whether with or without\ncompensation to any Person who is engaged in any business that is competitive with the business of the Company or any of its Affiliates\nfor which the Executive has provided services. The foregoing, however, shall not prevent the Executive's passive ownership of two\npercent (2%) or less of the equity securities of any publicly traded company. Notwithstanding any provision in this Agreement, section 6.\n(b) (i) shall not be deemed to create post-employment non-competition restrictions on the Executive if the Executive's primary residence\nis in the state of California; or\n(ii) solicit or encourage any customer of the Company or any of its Affiliates to terminate or diminish its relationship with them; or\n(iii) seek to persuade any such customer of the Company or any of its Affiliates to conduct with anyone else any business or\nactivity which such customer conducts with the Company or any of its Affiliates; provided that these restrictions shall apply only if the\nExecutive\nhas performed work for such Person during his employment with the Company or one of its Affiliates or has been introduced to, or\notherwise had contact with, such Person as a result of his employment or other associations with the Company or one of its Affiliates or\nhas had access to Confidential Information which would assist in the Executive's solicitation of such Person.\n(iv) solicit for hiring any employee or independent contractor of the Company or any of its Affiliates or seek to persuade any\nemployee or independent contractor of the Company or any of its Affiliates to discontinue or diminish such employee or independent\ncontractor's relationship with the Company or any of its Affiliates.\n(c) Cooperation and Non-Disparagement The Executive agrees that, during the Restricted Period, he or she shall cooperate with\nthe\nCompany in every reasonable respect and shall use his or her best efforts to assist the Company with the transition of the Executive's duties to\nhis or her successor. The Executive further agrees that, during the Restricted Period, he or she shall not in any way or by any means disparage\nthe Company, the members of the Company's Board or the Company's officers and employees.\n(d) Assignment of Inventions. The Executive shall promptly and fully disclose all Work Product (defined herein) to the Company.\nExecutive hereby assigns to the Company all of Executive's rights, title, and interest (including but not limited to all patent, trademark,\ncopyright and trade secret rights) in and to all work product prepared by Executive, made or conceived in whole or in part by Executive within\nthe scope of Executive's employment by the Company or within six (6) months thereafter, or that relate directly to or involve the use of\nConfidential Information ("Work Product"). Executive further acknowledges and agrees that all copyrightable Work Product prepared by\nExecutive within the scope of Executive's employment with the Company are "works made for hire" and, consequently, that the Company\nowns all copyrights thereto. The Executive agrees to execute any and all applications for domestic and foreign patents, copyrights or other\nproprietary rights and to do such other acts (including without limitation the execution and delivery of instruments of further assurance or\nconfirmation) requested by the Company to assign the Work Product to the Company and to permit the Company to enforce any patents,\ncopyrights or other proprietary rights to the Work Product. The Executive will not charge the Company for time spent in complying with these\nobligations. Notwithstanding the foregoing, any provision in this Agreement which provides that Executive shall assign, offer to assign, any of\nhis or her rights in an invention to the Company shall not apply to an invention that the Executive developed entirely on his or her own time\nwithout using the Company's equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(i) relate at the time of conception or reduction to practice of the invention to the Company's business or actual demonstrably\nanticipated research or development of the Company; or\n(ii) result from any work performed by the Executive for the Company.\n(e) Acknowledgement Regarding Restrictions The Company has expended a great deal of time, money and effort to develop and\nmaintain its confidential business information which, if misused or disclosed, could be very harmful to its business and could cause the\nCompany to be at a competitive disadvantage in the marketplace The Company would not be willing to proceed with the execution of this\nAgreement but for the Executive's signing and agreeing to abide by the terms of this Agreement. The Executive recognizes and acknowledges\nthat he or she has and will have access to Confidential Information of the Company, and that the Company, in all fairness, needs certain\nprotection in order to ensure that the Executive does not misappropriate or misuse any trade secret or other Confidential Information or take\nany other action which could result in a loss of the goodwill of the\nCompany and, more generally, to prevent the Executive from having or providing others with an unfair competitive advantage over the\nCompany. To that end, the Executive acknowledges that the foregoing restrictions, both separately and in total, are reasonable and enforceable\nin view of the Company's legitimate interests in protecting the goodwill, confidential information and customer loyalty of its business. To the\nextent that any provision of this Agreement is adjudicated to be invalid or unenforceable because it is somehow overbroad or otherwise\nunreasonable, that provision shall not be void but rather shall be limited only to the extent required by applicable law and enforced as so\nlimited to the greatest extent allowed by law, and the validity or enforceability of the remaining provisions of this Agreement shall be\nunaffected and such adjudication shall not affect the validity or enforceability of such remaining provisions.\n(f) Right to Injunctive Relief. The Executive further agrees that in the event of any breach hereof the harm to the Company will be\nirreparable and without adequate remedy at law and, therefore, that injunctive relief with respect thereto will be appropriate. In the event of a\nbreach or threatened breach of any of the Executive's obligations under the terms of Sections 5 or 6 hereof, the Company shall be entitled, in\naddition to any other legal or equitable remedies it may have in connection therewith (including any right to damages that it may suffer), to\ntemporary, preliminary and permanent injunctive relief restraining such breach or threatened breach (without the obligation to post bond),\ntogether with reasonable attorney's fees incurred in preliminarily enforcing its rights hereunder. The Executive specifically agrees that if there\nis a question as to the enforceability of any of the provisions of Sections 5 or 6 hereof, the Executive will not engage in any conduct\ninconsistent with or contrary to such Section until after the question has been resolved by a final judgment of a court of competent jurisdiction.\n7. Definitions.\n(a) Definition of "Affiliate." For all purposes under this Agreement, "Affiliate" shall mean, with respect to any Person, all Persons\ndirectly or indirectly controlling, controlled by or under common control with such Person, where control may be by either management\nauthority, contract or equity interest. As used in this definition, "control" and correlative terms have the meanings ascribed to such words in\nRule 12b-2 of the Securities Exchange Act of 1934, as amended (the "Exchange Act").\n(b) Definition of "Cause." For all purposes under this Agreement, "Cause" shall mean any of the following (i) the Executive's willful and\ncontinued failure to perform substantially the duties of his/her responsibilities (other than due to physical or mental incapacity); (ii) the\nExecutive's unauthorized use or disclosure of trade secrets which causes substantial harm to the Company; (iii) the Executive's engaging in\nillegal conduct that is likely to be injurious to the Company; (iv) the Executive's acts of fraud, dishonesty, or gross misconduct, or gross\nnegligence in connection with the business of the Company; (v) the Executive's conviction of a felony; (vi) the Executive's engaging in any act\nof moral turpitude reasonably likely to substantially and adversely affect the Company or its business; (vii) the Executive engaging in the\nillegal use of a controlled substance or using prescription medications unlawfully; (viii) the Executive's abuse of alcohol; or (ix) the breach by\nthe Executive of a material term of this Agreement, including, without limitation, his or her obligations under Sections 5 or 6.\n(c) Definition of "Change in Control.' For all purposes under this Agreement, "Change in Control" means the occurrence of any of the\nfollowing:\n(A) any Person (as defined herein) becomes the beneficial owner directly or indirectly (within the meaning of Rule 13d--3\nunder\nthe Exchange Act) of more than 50% of SAVVIS' then outstanding voting securities (measured on the basis of voting power); or\n(B)\nIndividuals who, as of the date hereof, constitute the Board (the "Incumbent Board") cease for any reason to constitute at\nleast\na\nmajority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or\nnomination for election by SAVVIS' shareholders, was approved by a vote of at least a majority of the directors then comprising the\nIncumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose,\nany such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the\nelection or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the\nBoard; or\n(C) the closing of an agreement of merger or consolidation with any other corporation or business entity, other than (x) a merger or\nconsolidation which would result in the voting securities of SAVVIS outstanding immediately prior thereto continuing to represent\n(either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership\nof any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 50% of the combined voting\npower of the voting securities of SAVVIS or such surviving entity outstanding immediately after such merger or consolidation, or (y) a\nmerger or consolidation effected to implement a recapitalization of SAVVIS (or similar transaction) in which no Person acquires more\nthan 50% of the combined voting power of SAVVIS' then outstanding securities;\n(D) the liquidation or dissolution of SAVVIS or the closing of a sale or disposition by SAVVIS of all or substantially all of its\nassets.\nFor purposes of this paragraph, "Person" means any individual, entity or group within the meaning of Section 3(a)(9) of the Exchange Act, as\nmodified and used in Sections 13(d) and 14(d) thereof; however, a Person shall not include (aa) SAVVIS or any of its subsidiaries, (bb) a trustee or\nother fiduciary holding securities under an employee benefit plan of the Company, (cc) an underwriter temporarily holding securities pursuant to an\noffering of such securities, (dd) a corporation owned, directly or indirectly, by the shareholders of SAVVIS in substantially the same proportions as\ntheir ownership of SAVVIS common stock, (ee) any person or entity or group acquiring securities of SAVVIS pursuant to an issuance of securities\napproved by the Board, or (ff) any of the following entities or their affiliates: Welsh, Carson, Anderson & Stowe VIII L.P. and WCAS Management\nCorporation.\n(d) Definition of "Confidential Information." For all purposes under this Agreement, "Confidential Information" shall mean any and all\ninformation of the Company and its Affiliates that is not generally known by others with whom they compete or do business, or with whom\nany of them plans to compete or do business and any and all information, publicly known in part or not, which, if disclosed by the Company or\nits Affiliates would assist in competition against them. Confidential Information includes without limitation such information relating to\n(i) trade secrets, the development, research, testing, manufacturing, marketing and financial activities of the Company and its Affiliates, (ii) the\nProducts, (iii) the costs, sources of supply, financial performance and strategic plans of the Company and its Affiliates, (iv) the identity and\nspecial needs of the customers of the Company and its Affiliates and (v) client lists and the people and organizations with whom the Company\nand\nits Affiliates have business relationships and the substance of those relationships. Confidential Information also includes any information\nthat the Company or any of its Affiliates have received, or may receive hereafter, belonging to customers or others with any understanding,\nexpress or implied, that the information would not be disclosed.\n(e) Definition of "Disability.." For all purposes under this Agreement, "Disability" shall mean the Executive becoming disabled during\nhis employment hereunder through any illness, injury, accident or condition of either a physical or psychological nature and, as a result, is\nunable to perform substantially all\nof his duties and responsibilities hereunder, notwithstanding the provision of any reasonable accommodation, for one hundred and eighty\n(180) days during any period of three hundred and sixty-five (365) consecutive calendar days.\n(f) Definition of "Good Reason." For all purposes under this Agreement, "Good Reason" shall mean the occurrence of any of the\nfollowing events: (i) a change in the Executive's position that materially reduces his or her authority and level of responsibility as an officer of\nthe\nCompany\n(provided\nthat\nit\nis\nunderstood\nthat\nthe\nChief\nExecutive\nOfficer\nof\nSAVVIS\nas\na\nmatter\nof\nmanagement\nflexibility\nmay\ndirect\na\nchange in the Executive's reporting relationships or job title or a transfer of the Executive to a different officer position and such change or\ntransfer shall be not deemed to result in a reduction in the Executive's authority or level of responsibility unless it is so substantial that a\nreasonable executive would feel compelled to resign under the circumstances), (ii) a material reduction in his or her level of compensation\n(including base salary and target bonus) or (iii) a relocation of his or her employment more than fifty (50) miles from the metropolitan area in\nwhich the Executive's office is located at the time of resignation; provided, however, that in the case of the preceding clauses (i), (ii) and (iii),\nGood Reason shall only exist if effected without the Executive's consent and is not a result of a Company-wide or department-wid policy or\npractice. Notwithstanding the foregoing, Good Reason shall only exist if (A) the Executive provides written notice to the Company within\nninety (90) days of the occurrence of the event or condition constituting Good Reason, (B) the Company is provided a period of thirty\n(30) days to cure the event or condition giving rise to Good Reason (the "Cure Period") and fails to do so prior to the end of the Cure Period,\nand (C) the Executive terminates employment within thirty (30) days after the end of the Cure Period.\n(g) Definition of "Intellectual Property." For all purposes under this Agreement, "Intellectual Property" shall mean inventions,\ndiscoveries, developments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or\nconstituting trade secrets) conceived, made, created, developed or reduced to practice by the Executive (whether alone or with others, whether\nor not during normal business hours or on or off Company premises) during the Executive's employment and during the period of six\n(6) months immediately following termination of his employment that relate to either the Products or any prospective activity of the Company\nor\nany of its Affiliates or that make use of Confidential Information or any of the equipment or facilities of the Company or any of its\nAffiliates.\n(h) Definition of "Involuntary Termination." For all purposes under this Agreement, "Involuntary Termination" shall mean termination of\nemployment under Section 4(a)(ii) or Section 4(a)(iv).\n(i) Definition of "Person." For all purposes under this Agreement, "Person" shall mean an individual, a corporation, a limited liability\ncompany, an association, a partnership, an estate, a trust and any other entity or organization.\n(j) Definition of "Products." For all purposes under this Agreement, "Products" shall mean all products planned, researched, developed,\ntested, manufactured, sold, licensed, leased or otherwise distributed or put into use by the Company or any of its Affiliates, together with all\nservices provided or planned by the Company or any of its Affiliates, during the Executive's employment.\n8.\nMiscellaneous Provisions.\n(a) Conflicts. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Company document,\nthen the provisions of this Agreement will control. This Agreement will supersede any prior agreement between the Executive and the\nCompany with respect to the subject matters contained herein and may be amended only by a writing signed by an officer of the Company\n(other than the Executive).\n(b) Notice. Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been\nduly given when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid or\ndeposited with an overnight courier, with shipping charges prepaid. In the case of the Executive, mailed notices shall be addressed to him or\nher\nat the home address which he or she most recently communicated to the Company in writing. In the case of SAVVIS or the Company,\nmailed notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of SAVVIS' Senior Vice\nPresident and General Counsel.\n(c) Waiver. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is\nagreed to in writing and signed by the Executive and by an authorized officer of the Company (other than the Executive). No waiver by either\nparty of any breach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of\nany other condition or provision or of the same condition or provision at another time.\n(d) Severability.. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision hereof, which shall remain in full force and effect.\n(e) No Retention Rights. Nothing in this Agreement shall confer upon the Executive any right to continue in service for any period of\nspecific duration or to interfere with or otherwise restrict in any way the rights of the Company or any subsidiary of the Company or of the\nExecutive, which rights are hereby expressly reserved by each, to terminate his or her service at any time and for any reason, with or without\nCause and with or without notice.\n(f) Choice of Law; Venue. The parties acknowledge that they each have, and will continue to have, substantial contacts with the State of\nMissouri, where the Company has its headquarters. This Agreement has been drafted and negotiated in the State of Missouri. To ensure that\nany disputes arising under this Agreement are resolved in accordance with the parties' expectations, this Agreement shall be governed by and\nconstrued under the laws of the State of Missouri and applicable federal laws. The substantive law (and statutes of limitations) of the State of\nMissouri shall be applied to disputes arising under this Agreement, as the parties agree that their expectations with respect to the scope and\nenforcement of this Agreement are based on Missouri law, and that Missouri law is therefore more applicable to such disputes. Should\nMissouri law be found not to apply to this Agreement for any reason, the parties agree that the severance benefit described in Section 4 shall\nnot be payable, the provisions of Section 4 notwithstanding. Each party agrees that any proceeding relating to this Agreement shall be brought\nin the state courts of Missouri located in St. Louis County or the federal courts of the District of Missouri, Eastern Division. Each party hereby\nconsents to personal jurisdiction in any such action brought in any such Missouri court, consents to service of process by the methods for\nnotice under Section 8(b) hereof made upon such party, and such party's agent and waives any objection to venue in any such Missouri court\nor to any claim that any such Missouri court is an inconvenient forum.\n(g) Attorney's Fees. In the event of any action by either party to enforce or interpret the terms of this Agreement, the prevailing party\nwith respect to any particular claim shall (in addition to other relief to which it or he may be awarded) be entitled to recover his or its\nattorney's fees in a reasonable amount incurred in connection with such claim.\n(h) Successors. This Agreement and all rights of the parties hereunder shall inure to the benefit of, and be enforceable by, such parties'\npersonal or legal representatives, executors, administrators, successors, heirs and assigns, as applicable.\n(i) Entire Agreement. This Agreement, together with the other agreements and any documents, instruments and certificates referred to\nherein, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes any and all prior\ndiscussions, negotiations, proposals, undertakings, understandings and agreements, whether written or oral, with respect to the subject matter\ncontained herein.\nIN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as of the\nday and year first above written.\nSAVVIS, INC.\nEXECUTIVE\nBy:\nBy:\nName:\nName:\nTitle:	EX-10.3 2 dex103.htm FORM OF EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-\nCOMPETITION AGREEMENT\nEXHIBIT 10.3\nEMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT\nTHIS EMPLOYMENT, CONFIDENTIALITY, SEVERANCE AND NON-COMPETITION AGREEMENT (this “Agreement”) is\nentered into as of [\n,\n] by and between [\n] (the “Executive”) and SAVVIS, INC., a Delaware corporation, (“SAVVIS”) and all\nits subsidiaries (collectively referred to as the “Company”). Capitalized terms used but not defined herein have the respective meanings ascribed to\nsuch terms in Section 7 of this Agreement.\nWHEREAS, Executive acknowledges that:\n•\nthe Company and its Affiliates are and will be engaged in a number of highly competitive lines of business.\n•\nthe Company and its Affiliates conduct business throughout the United States and in numerous foreign countries;\n•\nthe Company and its Affiliates possess Confidential Information and customer goodwill that provide the Company and its Affiliates with\na significant competitive advantage; and\n•\nthe Company’s and its Affiliates’ success depends to a substantial extent upon the protection of its Confidential Information (which\nincludes trade secrets and customer lists) and customer goodwill by all of their employees;\n•\nExecutive has and will continue to have possession of Confidential Information; and\nWHEREAS, if Executive were to leave the Company, the Company and its Affiliates would in all fairness need certain protections to prevent\ncompetitors from gaining an unfair competitive advantage over them.\nNOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, the parties agree as follows:\n1. Term of Agreement. This Agreement will remain in effect from the date hereof until the date the Executive’s employment with the Company\nterminates for any reason. The following provisions shall survive termination or expiration of this Agreement for any reason, to the extent\napplicable and in accordance with their terms: Sections 4, 5, 6 and 8. Executive’s employment is “at-will”, and nothing contained herein shall\nbe deemed a guarantee of employment with Company for any period of time.\n2. Capacity and Performance.\n(a) During the term hereof, the Executive shall serve the Company in the position to which he or she is appointed from time to time.\nExecutive’s position as of the date of this Agreement is [\n]. During the term hereof, Executive will be employed by the Company on a\nfull-time basis and shall perform the duties and responsibilities of his or her\nposition and such other duties and responsibilities on behalf of the Company and its Affiliates, reasonably related to that position, as may be\ndesignated from time to time by the Compensation Committee (the “Compensation Committee”) of the Board of Directors of SAVVIS (the\n“Board”) or other designee.\n(b) During the term hereof, the Executive shall devote his full business time and his best efforts, business judgment, skill and knowledge\nto the advancement of the business and interests of the Company and its Affiliates and to the discharge of his duties and responsibilities\nhereunder. The Executive shall not engage in any other business activity or serve in any industry, trade, professional, governmental or\nacademic position during the term of this Agreement, except as may otherwise be expressly approved in advance by the Compensation\nCommittee or other designee in writing.\n3. Compensation and Benefits. As compensation for all services performed by the Executive under and during the term hereof, and subject to\nperformance of the Executive’s duties and the fulfillment of the obligations of the Executive to the Company and its Affiliates, pursuant to this\nAgreement or otherwise:\n(a) Base Salary. During the term hereof, the Company shall pay the Executive a base salary, which as of the date of execution of this\nAgreement is set at the rate of [\nDollars ($\n) ] per annum, payable in accordance with the regular payroll practices of the\nCompany for its executives subject to adjustment from time to time by the Compensation Committee, in its sole discretion. Such base salary,\nas from time to time adjusted, is hereafter referred to as the “Base Salary”.\n(b) Incentive and Bonus Compensation.\n(i) For service rendered during the Company’s fiscal year ending December 31, [ ], the Executive will be eligible, at the\nCompensation Committee’s discretion, to receive a bonus payment equal to [\n]% of Base Salary, payable in accordance with the\nterms of the Company’s [\n] Annual Incentive Plan.\n(ii) Commencing on January 1, [ ] and for the remainder of the term hereof, the Executive shall be entitled to participate in the\nCompany’s Annual Incentive Plan (the “Annual Incentive Plan”) on terms to be determined annually by the Compensation Committee\nprior to the commencement of each fiscal year. Nothing contained herein shall obligate the Company to continue the Annual Incentive\nPlan. Any compensation paid to the Executive under the Annual Incentive Plan shall be in addition to the Base Salary. Except as\notherwise expressly provided under the terms of the Annual Incentive Plan or this Agreement, the Executive shall not be entitled to earn\nbonus or other compensation for services rendered to the Company.\n[Insert equity grant provisions if applicable.]\n4. Termination of Employment.\n(a) Executive’s employment with the Company may be terminated as follows:\n(i) by the Company with Cause;\n(ii) by the Company without Cause;\n(iii) upon Executive’s death or Disability (defined herein);\n(iv) by Executive with Good Reason; or\n(v) by Executive without Good Reason.\n(b) Upon termination of Executive’s employment for any reason, all rights and obligations under this Agreement shall cease, except as\nreferred to in Section 1 and except that Executive shall be entitled to (i) payment of his or her salary through the effective date of termination,\nplus (ii) payment of any other amounts owed but not yet paid to Executive as of the effective date of termination (such as reimbursement for\nbusiness expenses incurred prior to termination in accordance with the Company’s expense and reimbursement policy, plus (iii) any other\nbenefits to which Executive may be entitled which provide for payment or other benefits following termination (such as under disability\ninsurance plan).\n(c) Severance Benefits.\n(i) If the Executive is subject to termination pursuant to an Involuntary Termination (as defined in Section 7), then in addition to\nany amounts / benefits owed under Section 4(b), the Company shall pay the Executive: (x) an amount equal to 100% of his or her then\ncurrent annual Base Salary for one year (the “Severance Payment”) and (y) at the discretion of the Compensation Committee, a pro-rated\nportion of the bonus that the Executive would be entitled to receive under the Company’s Annual Incentive Plan (“Bonus”). The pro-\nrated Bonus will be calculated by the compensation committee by extrapolating the Company’s anticipated full year performance based\non the current year performance to date and then multiplying the resulting full year extrapolation by a fraction the numerator of which is\nthe number of days during the calendar year the Executive worked in the year of Involuntary Termination up to the termination date and\nthe denominator of which is 365. Any such Bonus shall be paid not later than 30 days after the date of the Involuntary Termination. If the\nExecutive is subject to an Involuntary Termination prior to March 31 of any calendar year, and has, therefore, not yet received payment\nfor the prior year under the Annual Incentive Plan, then the Executive will also be entitled to such payment under the Annual Incentive\nPlan as he would otherwise have been entitled to receive had he remained employed on March 31 of the year of Involuntary Termination.\nAny such Bonus shall be paid at the time bonuses are paid to other employees under the Annual Incentive Plan and not later than the end\nof the year during which the Involuntary Termination occurred.\n(ii) Further, if and only if the Involuntary Termination occurs within twelve (12) months after a Change in Control (a “Change in\nControl Termination”), then (x) in addition to the Severance Payment, any stock awards, stock options, stock appreciation rights or other\nequity-based awards (each an “Equity Award”) that were outstanding immediately prior to the effective date of the Change in Control\nTermination shall, unless such Equity Awards are no longer outstanding, to the extent not then vested, fully vest and become exercisable\nas of such date and the Executive shall have the right to exercise any such Equity Award until the earlier to occur of (A) twelve\n(12) months from the date of the Change in Control Termination and (B) the expiration date of such Equity Award as set forth in the\nagreement evidencing such award; and (y) the Executive shall be entitled to the Bonus, which shall be paid not later than 30 days after\nthe date of the Change in Control Termination.\n(d) Timing of and Conditions to Payment. Any Severance Payment due under Section 4(c) shall be paid bi-monthly, in accordance with\nthe Company’s standard payroll procedures, for the twelve (12) month period following the effective date of termination. Any other provision\nof this Agreement notwithstanding, no severance benefits shall be payable unless and until each of the following has occurred:\n(i) the Executive has executed and delivered to the Company a general release (in a form prescribed by the Company) of all known\nand unknown claims that he or she may then have against the Company or persons affiliated with the Company and has agreed not to\nprosecute any legal action or other proceeding based upon any of such claims;\n(ii) the Executive has, no later than the effective date of termination, delivered to the Company a resignation from all offices,\ndirectorships and fiduciary positions with the Company and it affiliates;\n(iii) the effective date of the Executive’s Involuntary Termination;\n(iv) the date of the Company’s receipt of the Executive’s executed General Release, which must be no later than 21 days following\nthe effective date of termination (except in the case of group terminations, such time period shall be 45 days);\n(v) the expiration of any rescission or revocation period applicable to the Executive’s executed General Release; and\n(vi) the Executive is and continues to be in compliance with all of his or her obligations under this Agreement, including, without\nlimitation, Sections 5 and 6, and under the agreements and other documents referred to or incorporated by reference herein.\nThe Company will commence payment of the Severance Payment within ten (10) business days of satisfaction / occurrence of the last of the\nforegoing items (1) through (5). For purposes of Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), an installment\nSeverance Payment shall be deemed to be made as of the applicable bimonthly payroll date following the Executive’s effective date of termination if\nmade by the 15th day of the third calendar month following such payroll date.\n(e) Health Care Benefit. Following an Involuntary Termination, the Company will pay to the Executive a monthly taxable cash payment\nin an amount equal (on an after tax basis, taking into account federal, state, local and foreign taxes) to the monthly COBRA (Consolidated\nOmnibus Budget Reconciliation Act) premium(s) in effect as of immediately prior to the Executive’s Involuntary Termination for the most\nexpensive level of coverage under the group health plan(s) applicable to the Executive at the time of the Executive’s Involuntary Termination.\nThe monthly payments will commence with the first month following the Executive’s Involuntary Termination and will terminate upon the\nearlier of (a) the Executive having received twelve monthly payments and (b) the Executive becoming re-employed and entitled to coverage\nunder the new employer’s group health plan. The Executive agrees to notify the Company in writing immediately upon becoming re-employed\nand entitled to coverage under a new employer’s group health plan.\n(f) Withholding Taxes. All payments made under this Agreement shall be subject to reduction to reflect taxes or other charges required to\nbe withheld by law.\n(g) Section 409A Savings Clause. This Agreement is intended to comply with the requirements of Section 409A of the Code (including\nthe exceptions thereto) to the extent applicable, and the Agreement shall be interpreted in a manner consistent with such requirements.\nNotwithstanding any other provision hereof, if any provision of the Agreement conflicts with the requirements of Section 409A of the Code (or\nan exception thereto), such provision shall be deemed reformed so as to comply with the requirements of Section 409A of the Code (or an\nexception thereto) and shall be interpreted and applied accordingly.\nAmounts payable other than those expressly payable on a deferred or installment basis, will be paid as promptly as practical and, in any event,\nwithin 2 /2 months after the end of the year in which such amount was earned.\nAny amount that the Executive is entitled to be reimbursed will be reimbursed as promptly as practical and in any event not later than the last\nday of the calendar year after the calendar year in which the expenses are incurred, and the amount of the expenses eligible for reimbursement during\nany calendar year will not affect the amount of expenses eligible for reimbursement in any other calendar year.\nIf at the time of separation from service (i) the Executive is a specified employee (within the meaning of Section 409A and using the\nidentification methodology selected by the Company from time to time), and (ii) the Company makes a good faith determination that an amount\npayable by the Company to the Executive constitutes deferred compensation (within the meaning of Section 409A) the payment of which is required\nto be delayed pursuant to the six-month delay rule set forth in Section 409A in order to avoid taxes or penalties under Section 409A, then the\nCompany will not pay such amount on the otherwise scheduled payment date but will instead pay it in a lump sum on the first business day after\nsuch six-month period together with interest for the period of delay, compounded annually, equal to the prime rate (as published in the Wall Street\nJournal) in effect as of the dates the payments should otherwise have been provided.\n5. Confidential Information.\n(a) The Executive acknowledges that the Company and its Affiliates continually develop Confidential Information, that the Executive\nmay develop Confidential Information for the Company or its Affiliates and that the Executive will have possession of and access to\nConfidential Information during the course of employment. The Executive will comply with the policies and procedures of the Company and\nits Affiliates for protecting Confidential Information, and shall not disclose to any Person or use, other than as required by applicable law or\nfor the proper performance of his duties and responsibilities to the Company and its Affiliates, any Confidential Information obtained by the\nExecutive incident to his employment or other association with the Company or any of its Affiliates. The Executive understands that this\nrestriction shall continue to apply after his employment terminates, regardless of the reason for such termination. The confidentiality obligation\nunder this Section 5 shall not apply to information which is generally known or readily available to the public at the time of disclosure or\nbecomes generally known through no wrongful act on the part of the Executive or any other Person having an obligation of confidentiality to\nthe Company or any of its Affiliates.\n(b) All documents, records, tapes and other media of every kind and description relating to the business, present or otherwise, of the\nCompany or its Affiliates and any copies, in whole or in part, thereof (the “Documents”), whether or not prepared by the Executive, shall be\nthe sole and exclusive property of the Company and its Affiliates. The Executive shall safeguard all Documents and shall surrender to the\nCompany at the time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents then\nin the Executive’s possession or control.\n(c) In the event that Executive is requested or becomes legally compelled (by oral questions, interrogatories, requests for information or\ndocuments, deposition, subpoena, civil investigative\n1\ndemand or similar process) to disclose any of the Confidential Information, the Executive shall, where permitted under applicable law, rule or\nregulation, provide written notice to the Company promptly after such request so that the Company may, at its expense, seek a protective order\nor other appropriate remedy (the Executive agrees to reasonably cooperate with the Company in connection with seeking such order or other\nremedy). In the event that such protective order or other remedy is not obtained, the Executive shall furnish only that portion of the\nConfidential Information that the Executive is advised by counsel is required, and shall exercise reasonable efforts to obtain assurance that\nconfidential treatment will be accorded such Confidential Information. In addition, the Executive may disclose Confidential Information in the\ncourse of inspections, examinations or inquiries by federal or state regulatory agencies and self regulatory organizations that have requested or\nrequired the inspection of records that contain the Confidential Information provided that the Executive exercises reasonable efforts to obtain\nreliable assurances that confidential treatment will be accorded to such Confidential Information. To the extent such information is required to\nbe disclosed and is not accorded confidential treatment as described in the immediately preceding sentence, it shall not constitute “Confidential\nInformation” under this Agreement.\n6. Certain Covenants.\n(a) The Executive agrees that, during his employment with the Company, he or she will not undertake any outside activity, whether or not\ncompetitive with the business of the Company or its Affiliates that could reasonably give rise to a conflict of interest or otherwise materially\ninterfere with his or her duties and obligations to the Company or any of its Affiliates.\n(b) During the term of Executive’s employment and for twelve (12) months following termination of his or her employment for any\nreason (the “Restricted Period”), the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent,\nemployee, co-venturer or otherwise:\n(i) compete with the Company or any of its Affiliates within the geographic area in which the Company does business or undertake\nany planning for any business competitive with the Company or any of its Affiliates. Specifically, but without limiting the foregoing, the\nExecutive agrees not to engage in any manner in any activity that is directly or indirectly competitive with the business of the Company\nor any of its Affiliates as conducted or under consideration at any time during the Executive’s employment, and further agrees not to\nwork or provide services, in any capacity, whether as an employee, independent contractor or otherwise, whether with or without\ncompensation, to any Person who is engaged in any business that is competitive with the business of the Company or any of its Affiliates\nfor which the Executive has provided services. The foregoing, however, shall not prevent the Executive’s passive ownership of two\npercent (2%) or less of the equity securities of any publicly traded company. Notwithstanding any provision in this Agreement, section 6.\n(b) (i) shall not be deemed to create post-employment non-competition restrictions on the Executive if the Executive’s primary residence\nis in the state of California; or\n(ii) solicit or encourage any customer of the Company or any of its Affiliates to terminate or diminish its relationship with them; or\n(iii) seek to persuade any such customer of the Company or any of its Affiliates to conduct with anyone else any business or\nactivity which such customer conducts with the Company or any of its Affiliates; provided that these restrictions shall apply only if the\nExecutive\nhas performed work for such Person during his employment with the Company or one of its Affiliates or has been introduced to, or\notherwise had contact with, such Person as a result of his employment or other associations with the Company or one of its Affiliates or\nhas had access to Confidential Information which would assist in the Executive’s solicitation of such Person.\n(iv) solicit for hiring any employee or independent contractor of the Company or any of its Affiliates or seek to persuade any\nemployee or independent contractor of the Company or any of its Affiliates to discontinue or diminish such employee or independent\ncontractor’s relationship with the Company or any of its Affiliates.\n(c) Cooperation and Non-Disparagement. The Executive agrees that, during the Restricted Period, he or she shall cooperate with the\nCompany in every reasonable respect and shall use his or her best efforts to assist the Company with the transition of the Executive’s duties to\nhis or her successor. The Executive further agrees that, during the Restricted Period, he or she shall not in any way or by any means disparage\nthe Company, the members of the Company’s Board or the Company’s officers and employees.\n(d) Assignment of Inventions. The Executive shall promptly and fully disclose all Work Product (defined herein) to the Company.\nExecutive hereby assigns to the Company all of Executive’s rights, title, and interest (including but not limited to all patent, trademark,\ncopyright and trade secret rights) in and to all work product prepared by Executive, made or conceived in whole or in part by Executive within\nthe scope of Executive’s employment by the Company or within six (6) months thereafter, or that relate directly to or involve the use of\nConfidential Information (“Work Product”). Executive further acknowledges and agrees that all copyrightable Work Product prepared by\nExecutive within the scope of Executive’s employment with the Company are “works made for hire” and, consequently, that the Company\nowns all copyrights thereto. The Executive agrees to execute any and all applications for domestic and foreign patents, copyrights or other\nproprietary rights and to do such other acts (including without limitation the execution and delivery of instruments of further assurance or\nconfirmation) requested by the Company to assign the Work Product to the Company and to permit the Company to enforce any patents,\ncopyrights or other proprietary rights to the Work Product. The Executive will not charge the Company for time spent in complying with these\nobligations. Notwithstanding the foregoing, any provision in this Agreement which provides that Executive shall assign, offer to assign, any of\nhis or her rights in an invention to the Company shall not apply to an invention that the Executive developed entirely on his or her own time\nwithout using the Company’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(i) relate at the time of conception or reduction to practice of the invention to the Company’s business or actual demonstrably\nanticipated research or development of the Company; or\n(ii) result from any work performed by the Executive for the Company.\n(e) Acknowledgement Regarding Restrictions. The Company has expended a great deal of time, money and effort to develop and\nmaintain its confidential business information which, if misused or disclosed, could be very harmful to its business and could cause the\nCompany to be at a competitive disadvantage in the marketplace. The Company would not be willing to proceed with the execution of this\nAgreement but for the Executive’s signing and agreeing to abide by the terms of this Agreement. The Executive recognizes and acknowledges\nthat he or she has and will have access to Confidential Information of the Company, and that the Company, in all fairness, needs certain\nprotection in order to ensure that the Executive does not misappropriate or misuse any trade secret or other Confidential Information or take\nany other action which could result in a loss of the goodwill of the\nCompany and, more generally, to prevent the Executive from having or providing others with an unfair competitive advantage over the\nCompany. To that end, the Executive acknowledges that the foregoing restrictions, both separately and in total, are reasonable and enforceable\nin view of the Company’s legitimate interests in protecting the goodwill, confidential information and customer loyalty of its business. To the\nextent that any provision of this Agreement is adjudicated to be invalid or unenforceable because it is somehow overbroad or otherwise\nunreasonable, that provision shall not be void but rather shall be limited only to the extent required by applicable law and enforced as so\nlimited to the greatest extent allowed by law, and the validity or enforceability of the remaining provisions of this Agreement shall be\nunaffected and such adjudication shall not affect the validity or enforceability of such remaining provisions.\n(f) Right to Injunctive Relief. The Executive further agrees that in the event of any breach hereof the harm to the Company will be\nirreparable and without adequate remedy at law and, therefore, that injunctive relief with respect thereto will be appropriate. In the event of a\nbreach or threatened breach of any of the Executive’s obligations under the terms of Sections 5 or 6 hereof, the Company shall be entitled, in\naddition to any other legal or equitable remedies it may have in connection therewith (including any right to damages that it may suffer), to\ntemporary, preliminary and permanent injunctive relief restraining such breach or threatened breach (without the obligation to post bond),\ntogether with reasonable attorney’s fees incurred in preliminarily enforcing its rights hereunder. The Executive specifically agrees that if there\nis a question as to the enforceability of any of the provisions of Sections 5 or 6 hereof, the Executive will not engage in any conduct\ninconsistent with or contrary to such Section until after the question has been resolved by a final judgment of a court of competent jurisdiction.\n7. Definitions.\n(a) Definition of “Affiliate.” For all purposes under this Agreement, “Affiliate” shall mean, with respect to any Person, all Persons\ndirectly or indirectly controlling, controlled by or under common control with such Person, where control may be by either management\nauthority, contract or equity interest. As used in this definition, “control” and correlative terms have the meanings ascribed to such words in\nRule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).\n(b) Definition of “Cause.” For all purposes under this Agreement, “Cause” shall mean any of the following (i) the Executive’s willful and\ncontinued failure to perform substantially the duties of his/her responsibilities (other than due to physical or mental incapacity); (ii) the\nExecutive’s unauthorized use or disclosure of trade secrets which causes substantial harm to the Company; (iii) the Executive’s engaging in\nillegal conduct that is likely to be injurious to the Company; (iv) the Executive’s acts of fraud, dishonesty, or gross misconduct, or gross\nnegligence in connection with the business of the Company; (v) the Executive’s conviction of a felony; (vi) the Executive’s engaging in any act\nof moral turpitude reasonably likely to substantially and adversely affect the Company or its business; (vii) the Executive engaging in the\nillegal use of a controlled substance or using prescription medications unlawfully; (viii) the Executive’s abuse of alcohol; or (ix) the breach by\nthe Executive of a material term of this Agreement, including, without limitation, his or her obligations under Sections 5 or 6.\n(c) Definition of “Change in Control.” For all purposes under this Agreement, “Change in Control” means the occurrence of any of the\nfollowing:\n(A) any Person (as defined herein) becomes the beneficial owner directly or indirectly (within the meaning of Rule 13d--3 under\nthe Exchange Act) of more than 50% of SAVVIS’ then outstanding voting securities (measured on the basis of voting power); or\n(B) Individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a\nmajority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or\nnomination for election by SAVVIS’ shareholders, was approved by a vote of at least a majority of the directors then comprising the\nIncumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose,\nany such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the\nelection or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the\nBoard; or\n(C) the closing of an agreement of merger or consolidation with any other corporation or business entity, other than (x) a merger or\nconsolidation which would result in the voting securities of SAVVIS outstanding immediately prior thereto continuing to represent\n(either by remaining outstanding or by being converted into voting securities of the surviving entity), in combination with the ownership\nof any trustee or other fiduciary holding securities under an employee benefit plan of the Company, at least 50% of the combined voting\npower of the voting securities of SAVVIS or such surviving entity outstanding immediately after such merger or consolidation, or (y) a\nmerger or consolidation effected to implement a recapitalization of SAVVIS (or similar transaction) in which no Person acquires more\nthan 50% of the combined voting power of SAVVIS’ then outstanding securities;\n(D) the liquidation or dissolution of SAVVIS or the closing of a sale or disposition by SAVVIS of all or substantially all of its\nassets.\nFor purposes of this paragraph, “Person” means any individual, entity or group within the meaning of Section 3(a)(9) of the Exchange Act, as\nmodified and used in Sections 13(d) and 14(d) thereof; however, a Person shall not include (aa) SAVVIS or any of its subsidiaries, (bb) a trustee or\nother fiduciary holding securities under an employee benefit plan of the Company, (cc) an underwriter temporarily holding securities pursuant to an\noffering of such securities, (dd) a corporation owned, directly or indirectly, by the shareholders of SAVVIS in substantially the same proportions as\ntheir ownership of SAVVIS common stock, (ee) any person or entity or group acquiring securities of SAVVIS pursuant to an issuance of securities\napproved by the Board, or (ff) any of the following entities or their affiliates: Welsh, Carson, Anderson & Stowe VIII L.P. and WCAS Management\nCorporation.\n(d) Definition of “Confidential Information.” For all purposes under this Agreement, “Confidential Information” shall mean any and all\ninformation of the Company and its Affiliates that is not generally known by others with whom they compete or do business, or with whom\nany of them plans to compete or do business and any and all information, publicly known in part or not, which, if disclosed by the Company or\nits Affiliates would assist in competition against them. Confidential Information includes without limitation such information relating to\n(i) trade secrets, the development, research, testing, manufacturing, marketing and financial activities of the Company and its Affiliates, (ii) the\nProducts, (iii) the costs, sources of supply, financial performance and strategic plans of the Company and its Affiliates, (iv) the identity and\nspecial needs of the customers of the Company and its Affiliates and (v) client lists and the people and organizations with whom the Company\nand its Affiliates have business relationships and the substance of those relationships. Confidential Information also includes any information\nthat the Company or any of its Affiliates have received, or may receive hereafter, belonging to customers or others with any understanding,\nexpress or implied, that the information would not be disclosed.\n(e) Definition of “Disability.” For all purposes under this Agreement, “Disability” shall mean the Executive becoming disabled during\nhis employment hereunder through any illness, injury, accident or condition of either a physical or psychological nature and, as a result, is\nunable to perform substantially all\nof his duties and responsibilities hereunder, notwithstanding the provision of any reasonable accommodation, for one hundred and eighty\n(180) days during any period of three hundred and sixty-five (365) consecutive calendar days.\n(f) Definition of “Good Reason.” For all purposes under this Agreement, “Good Reason” shall mean the occurrence of any of the\nfollowing events: (i) a change in the Executive’s position that materially reduces his or her authority and level of responsibility as an officer of\nthe Company (provided that it is understood that the Chief Executive Officer of SAVVIS as a matter of management flexibility may direct a\nchange in the Executive’s reporting relationships or job title or a transfer of the Executive to a different officer position and such change or\ntransfer shall be not deemed to result in a reduction in the Executive’s authority or level of responsibility unless it is so substantial that a\nreasonable executive would feel compelled to resign under the circumstances), (ii) a material reduction in his or her level of compensation\n(including base salary and target bonus) or (iii) a relocation of his or her employment more than fifty (50) miles from the metropolitan area in\nwhich the Executive’s office is located at the time of resignation; provided, however, that in the case of the preceding clauses (i), (ii) and (iii),\nGood Reason shall only exist if effected without the Executive’s consent and is not a result of a Company-wide or department-wide policy or\npractice. Notwithstanding the foregoing, Good Reason shall only exist if (A) the Executive provides written notice to the Company within\nninety (90) days of the occurrence of the event or condition constituting Good Reason, (B) the Company is provided a period of thirty\n(30) days to cure the event or condition giving rise to Good Reason (the “Cure Period”) and fails to do so prior to the end of the Cure Period,\nand (C) the Executive terminates employment within thirty (30) days after the end of the Cure Period.\n(g) Definition of “Intellectual Property.” For all purposes under this Agreement, “Intellectual Property” shall mean inventions,\ndiscoveries, developments, methods, processes, compositions, works, concepts and ideas (whether or not patentable or copyrightable or\nconstituting trade secrets) conceived, made, created, developed or reduced to practice by the Executive (whether alone or with others, whether\nor not during normal business hours or on or off Company premises) during the Executive’s employment and during the period of six\n(6) months immediately following termination of his employment that relate to either the Products or any prospective activity of the Company\nor any of its Affiliates or that make use of Confidential Information or any of the equipment or facilities of the Company or any of its\nAffiliates.\n(h) Definition of “Involuntary Termination.” For all purposes under this Agreement, “Involuntary Termination” shall mean termination of\nemployment under Section 4(a)(ii) or Section 4(a)(iv).\n(i) Definition of “Person.” For all purposes under this Agreement, “Person” shall mean an individual, a corporation, a limited liability\ncompany, an association, a partnership, an estate, a trust and any other entity or organization.\n(j) Definition of “Products.” For all purposes under this Agreement, “Products” shall mean all products planned, researched, developed,\ntested, manufactured, sold, licensed, leased or otherwise distributed or put into use by the Company or any of its Affiliates, together with all\nservices provided or planned by the Company or any of its Affiliates, during the Executive’s employment.\n8. Miscellaneous Provisions.\n(a) Conflicts. If any provision of this Agreement conflicts with any other agreement, policy, plan, practice or other Company document,\nthen the provisions of this Agreement will control. This Agreement will supersede any prior agreement between the Executive and the\nCompany with respect to the subject matters contained herein and may be amended only by a writing signed by an officer of the Company\n(other than the Executive).\n(b) Notice. Notices and all other communications contemplated by this Agreement shall be in writing and shall be deemed to have been\nduly given when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage prepaid or\ndeposited with an overnight courier, with shipping charges prepaid. In the case of the Executive, mailed notices shall be addressed to him or\nher at the home address which he or she most recently communicated to the Company in writing. In the case of SAVVIS or the Company,\nmailed notices shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of SAVVIS’ Senior Vice\nPresident and General Counsel.\n(c) Waiver. No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is\nagreed to in writing and signed by the Executive and by an authorized officer of the Company (other than the Executive). No waiver by either\nparty of any breach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of\nany other condition or provision or of the same condition or provision at another time.\n(d) Severability. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or\nenforceability of any other provision hereof, which shall remain in full force and effect.\n(e) No Retention Rights. Nothing in this Agreement shall confer upon the Executive any right to continue in service for any period of\nspecific duration or to interfere with or otherwise restrict in any way the rights of the Company or any subsidiary of the Company or of the\nExecutive, which rights are hereby expressly reserved by each, to terminate his or her service at any time and for any reason, with or without\nCause and with or without notice.\n(f) Choice of Law; Venue. The parties acknowledge that they each have, and will continue to have, substantial contacts with the State of\nMissouri, where the Company has its headquarters. This Agreement has been drafted and negotiated in the State of Missouri. To ensure that\nany disputes arising under this Agreement are resolved in accordance with the parties’ expectations, this Agreement shall be governed by and\nconstrued under the laws of the State of Missouri and applicable federal laws. The substantive law (and statutes of limitations) of the State of\nMissouri shall be applied to disputes arising under this Agreement, as the parties agree that their expectations with respect to the scope and\nenforcement of this Agreement are based on Missouri law, and that Missouri law is therefore more applicable to such disputes. Should\nMissouri law be found not to apply to this Agreement for any reason, the parties agree that the severance benefit described in Section 4 shall\nnot be payable, the provisions of Section 4 notwithstanding. Each party agrees that any proceeding relating to this Agreement shall be brought\nin the state courts of Missouri located in St. Louis County or the federal courts of the District of Missouri, Eastern Division. Each party hereby\nconsents to personal jurisdiction in any such action brought in any such Missouri court, consents to service of process by the methods for\nnotice under Section 8(b) hereof made upon such party, and such party’s agent and waives any objection to venue in any such Missouri court\nor to any claim that any such Missouri court is an inconvenient forum.\n(g) Attorney’s Fees. In the event of any action by either party to enforce or interpret the terms of this Agreement, the prevailing party\nwith respect to any particular claim shall (in addition to other relief to which it or he may be awarded) be entitled to recover his or its\nattorney’s fees in a reasonable amount incurred in connection with such claim.\n(h) Successors. This Agreement and all rights of the parties hereunder shall inure to the benefit of, and be enforceable by, such parties’\npersonal or legal representatives, executors, administrators, successors, heirs and assigns, as applicable.\n(i) Entire Agreement. This Agreement, together with the other agreements and any documents, instruments and certificates referred to\nherein, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes any and all prior\ndiscussions, negotiations, proposals, undertakings, understandings and agreements, whether written or oral, with respect to the subject matter\ncontained herein.\nIN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as of the\nday and year first above written.\nSAVVIS, INC.\nEXECUTIVE\nBy:\nBy:\nName:\nName:\nTitle:
+9b0498c69fe511f0e244bf7722af4037.pdf	effective_date jurisdiction party term	EX-10.35 26 c15909a1exv10w35.htm NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.35\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT dated as of February 24, 2004, by and among (i) BRS-HCC\nInvestment Co., Inc. (“BRS-HCC”), Bruckmann, Rosser, Sherrill & Co. II, L.P., a Delaware limited partnership (“BRSLP”), Bruckmann,\nRosser, Sherrill & Co., Inc., a Delaware corporation (“BRSC”) (“BRS-HCC”, “BRSLP” and “BRSC” collectively “BRS”), and Bruce C.\nBruckmann, individually (“BCB”), and (ii) Heritage-Crystal Clean, LLC, an Indiana limited liability company (“Company”);\nWITNESSETH:\nWHEREAS, BRS-HCC is a Unit holder and Member of the Company, BRSLP is a lender to the Company and the holder of all of the capital\nstock of BRS-HCC, BRSC is the General Partner of BRSLP and BCB is a Managing Director of BRSC and it is anticipated that BCB will serve\nas a director of the Company; and as a result thereof, BRS and BCB have or will have access to and knowledge of all business information and\nconfidential data of the Company; and\nWHEREAS, BRSLP’s right to subscribe for and receive ownership of Units in the Company is expressly conditioned upon BRS’s and BCB’s\nentering into this Non-Competition and Non-Disclosure Agreement;\nNOW, THEREFORE, in pursuant of the above and in consideration of the terms and conditions contained herein and for other good and\nvaluable considerations, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:\n(1) Consideration. BRS and BCB acknowledge that the consideration received by BRSLP under the Purchase Agreement dated February\n__ _ , 2004 (“Purchase Agreement”) between the Company and BRSLP and BRSLP’s Subscription Agreement dated as of the same date is good\nand sufficient consideration for BRS’s and BCB’s covenants, agreements and forbearances contained in this Agreement and that the Company\nwould not have allowed BRS-HCC to subscribe for Units but for BRS’s and BCB’s entering into this Agreement.\n(2) Non-Disclosure. Neither BRS nor BCB or any of BRS’s partners, shareholders, directors, employees, agent or contractors will, at any\ntime following this date, disclose to any person, firm or corporation, any confidential information concerning the Company or its assets or\nbusiness, except as may be required by governmental law or regulation or in legal proceedings to which BRS, BCB or said other parties are\nsubpoenaed to give testimony, in which event BRS and/or BCB, as the case may be, shall notify the Company promptly upon learning that BRS,\nBCB or any of said parties may be required or compelled to divulge any confidential information. However, the foregoing shall not prohibit the\ndisclosure by BRS-HCC or BRSLP to its investors; however, BRSLP shall impose upon its investors reasonable confidentiality restrictions and\nBRSLP shall be liable for any breach by its investors of such confidentiality restrictions which results in damages to the Company. For purposes\nof this Agreement, “confidential information” consists of that proprietary information subject to protection under the Uniform Trade Secrets Act\nand includes, without limitation, the Company’s customer list and\n2\nprice information for all customers and other intangible property. “Confidential information” does not include information in the public domain\nthrough no fault of BRS or BCB or reasonably discoverable without access to internal documents or information.\n(3) Non Competition. During the term of BRS-HCC’s ownership of Units and for a period of two (2) years from the date of BRS-HCC’s\ncessation of such ownership (“Restricted Period”), BRS and BCB will not, other than for the exclusive benefit of the Company, directly or\nindirectly engage in the Business (as defined below), whether as an employee, owner, member, manager, consultant, agent, partner, lender,\nservice provider or in any other capacity. For purposes of this Agreement, the term “Business” means the business of providing “parts cleaning\nservices” in the United States or Canada (the “Territory”) with annual parts cleaning revenues from such services equal to or greater than\n$1.0 million. For purposes hereof, “parts cleaning services” means the sale of services to customers that includes the sale/delivery of new solvent\nused in sink-on -drum or vat-type parts cleaning equipment, combined with the removal of used solvent. The term “solvent” encompasses\npetroleum hydrocarbons and aqueous cleaning solutions. Such services may or may not include the sale/provision/loan/lease of parts cleaning\nequipment and assistance with customer analysis and characterization, customer compliance and paperwork; but where included, fees for these\nadditional related services are included in the definition of parts cleaning revenue.\n(4) Non-Solicitation; Non-Piracy. During the Restricted Period, BRS and BCB will not directly or indirectly call on any person or business\norganization which was a customer of the Company during the BRSLP’s ownership of Units for Business within the Territory. Further, during the\nRestricted Period, BRS and BCB will not, without the consent of the Company, for BRS’s or BCB’s own account or for any third party, directly\nor indirectly solicit or endeavor to entice away, offer employment to or employ any person who was employed by the Company during the twelve\n(12) month period immediately before the cessation of such ownership.\n(5) [Omitted]\n(6) Default and Remedies. BRS and BCB acknowledge and agree that, if BRS, BCB or any of the other parties referenced herein directly or\nindirectly breaches, violates, or fails to perform fully the obligations under this Agreement (“Default”), each Default shall cause immediate and\nirreparable harm to the Company, in a manner which cannot be adequately compensated in damages. The Company, BRS and BCB agree that in\nthe event of any such Default, the Company, in addition to all other available remedies at law or in equity, may, insofar as BRS, BCB or the other\nparties referenced herein may be concerned, be entitled to temporary, preliminary and permanent injunctive relief to restrain such Default(s) by\nBRS, BCB or any of the other parties referenced herein, and to all of its costs, expenses, and reasonable attorneys’ fees incurred in any\nenforcement proceedings in which the Company prevails in whole or in part. Nothing contained herein shall restrict or limit in any manner the\nCompany’s right to obtain any form of relief, legal or equitable, in an action brought to enforce the Company’s rights.\n(7) Severability. All provisions of this Agreement are intended to be severable. Each provision of this Agreement constitutes a separate and\ndistinct covenant. In the event any term, provision, or restriction in this Agreement is held to be illegal, invalid or unenforceable in\n3\nany respect, such finding shall in no way affect the legality, validity, or enforceability of all other provisions of this Agreement. The Company,\nBRS and BCB agree that any such unenforceable term, provision or restriction shall be deemed modified to the extent necessary to permit its\nenforcement to the maximum extent permitted by applicable law.\n(8) No Waiver of Rights. Neither any failure or any delay on the part of any party in exercising its rights shall operate as a waiver, nor shall a\nsingle or partial exercise preclude any further exercise of any right, power, or privilege by any party.\n(9) Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State\nof Illinois. The state and federal courts located in Kane County, Illinois, shall be the courts of exclusive jurisdiction and venue over any\nenforcement of this Agreement.\n(10) Benefit. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and assigns of\nthe parties hereto. BRS hereby agrees that the provisions of this Agreement, other than the provisions of Section (3) hereof, may be assigned in\nwhole or in part by the Company to any person acquiring substantially all of the assets of the Company (whether by purchase, merger or other\nsimilar transaction), and BRS hereby consents to such assignment and agrees to be bound to the assignee under all of the terms and conditions of\nthis Agreement.\n(11) Notices. All notices and communications hereunder shall be in writing and shall be deemed to be duly given if delivered in accordance\nwith Section 10(g) of the Purchase Agreement.\n(12) Modification. No waiver, alteration or modification of any provision of this Agreement will be valid unless made in writing and signed\nby both parties hereto. The waiver of any breach or default shall not be deemed to waive any subsequent breach or default.\n(13) Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or\nquestion of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of\nproof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any\ndomestic federal, state or local statute or law, shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context\nrequires otherwise. The word “including” shall mean including without limitation. The parties intend that each representation, warranty, and\ncovenant contained therein shall have independent significance. If any party has breached any representation, warranty, or covenant contained\nherein in any respect, the fact that there exists another representation, warranty, or covenant relating to the same subject matter (regardless of the\nrelative levels of specificity) which the party has not breached shall not detract from or mitigate the fact that the party is in breach of the first\nrepresentation, warranty, or covenant.\n(14) Entire Agreement. This Agreement constitutes the entire agreement of the parties relative to the subject matter and supersedes any prior\nunderstanding, agreements or\n4\nrepresentations by or among the parties, written or oral with regard to the subject matter of this Agreement.\n[Signature Pages Follow]\n5\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Non-Disclosure Agreement as of the date first above written.\nHeritage-Crystal Clean, LLC\nBRS-HCC Investment Co., Inc.\nBy: /s/ Joe Chalhoub\nBy: /s/ Bruce C. Bruckmann\nJoe Chalhoub\nBruce C. Bruckmann\nPresident and Chief Executive Officer\nPresident\nBruckmann, Rosser, Sherrill & Co., Inc.\nBy: /s/ Bruce C. Bruckmann\nBruce C. Bruckmann\nTitle:\nBruckmann, Rosser, Sherrill & Co II, L.P.\nBy: Bruckmann, Rosser,\nSherrill & Co., Inc., its\nGeneral Partner\nBy: /s/ Bruce C. Bruckmann\n/s/ Bruce C. Bruckmann\nBruce C. Bruckmann\nBruce C. Bruckmann\nManaging Director\nIndividually	EX-10.35 26 c15909alexv10w35.htm NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.35\nNON-COMPETITION AND NON-DISCIL. OSURE AGREEMENT\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT dated as of February 24, 2004, by and among (i) BRS-HCC\nInvestment Co., Inc. (“BRS-HCC”), Bruckmann, Rosser, Sherrill & Co. II, L.P., a Delaware limited partnership (“BRSLP”), Bruckmann,\nRosser, Sherrill & Co., Inc., a Delaware corporation (“BRSC”) (“BRS-HCC”, “BRSLP” and “BRSC” collectively “BRS”), and Bruce C.\nBruckmann, individually (“BCB”), and (ii) Heritage-Crystal Clean, LL.C, an Indiana limited liability company (“Company”);\nWITNESSETH:\nWHEREAS, BRS-HCC is a Unit holder and Member of the Company, BRSLP is a lender to the Company and the holder of all of the capital\nstock of BRS-HCC, BRSC is the General Partner of BRSLP and BCB is a Managing Director of BRSC and it is anticipated that BCB will serve\nas a director of the Company; and as a result thereof, BRS and BCB have or will have access to and knowledge of all business information and\nconfidential data of the Company; and\nWHEREAS, BRSLP’s right to subscribe for and receive ownership of Units in the Company is expressly conditioned upon BRS’s and BCB’s\nentering into this Non-Competition and Non-Disclosure Agreement;\nNOW, THEREFORE, in pursuant of the above and in consideration of the terms and conditions contained herein and for other good and\nvaluable considerations, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:\n(1) Consideration. BRS and BCB acknowledge that the consideration received by BRSLP under the Purchase Agreement dated February\n___, 2004 (“Purchase Agreement”) between the Company and BRSLP and BRSLP’s Subscription Agreement dated as of the same date is good\nand sufficient consideration for BRS’s and BCB’s covenants, agreements and forbearances contained in this Agreement and that the Company\nwould not have allowed BRS-HCC to subscribe for Units but for BRS’s and BCB’s entering into this Agreement.\n \n(2) Non-Disclosure. Neither BRS nor BCB or any of BRS’s partners, shareholders, directors, employees, agent or contractors will, at any\ntime following this date, disclose to any person, firm or corporation, any confidential information concerning the Company or its assets or\nbusiness, except as may be required by governmental law or regulation or in legal proceedings to which BRS, BCB or said other parties are\nsubpoenaed to give testimony, in which event BRS and/or BCB, as the case may be, shall notify the Company promptly upon learning that BRS,\nBCB or any of said parties may be required or compelled to divulge any confidential information. However, the foregoing shall not prohibit the\ndisclosure by BRS-HCC or BRSLP to its investors; however, BRSLP shall impose upon its investors reasonable confidentiality restrictions and\nBRSLP shall be liable for any breach by its investors of such confidentiality restrictions which results in damages to the Company. For purposes\nof this Agreement, “confidential information” consists of that proprietary information subject to protection under the Uniform Trade Secrets Act\nand includes, without limitation, the Company’s customer list and\nprice information for all customers and other intangible property. “Confidential information” does not include information in the public domain\nthrough no fault of BRS or BCB or reasonably discoverable without access to internal documents or information.\n(3) Non Competition. During the term of BRS-HCC’s ownership of Units and for a period of two (2) years from the date of BRS-HCC’s\ncessation of such ownership (“Restricted Period”), BRS and BCB will not, other than for the exclusive benefit of the Company, directly or\nindirectly engage in the Business (as defined below), whether as an employee, owner, member, manager, consultant, agent, partner, lender,\nservice provider or in any other capacity. For purposes of this Agreement, the term “Business” means the business of providing “parts cleaning\nservices” in the United States or Canada (the “Territory”) with annual parts cleaning revenues from such services equal to or greater than\n$1.0 million. For purposes hereof, “parts cleaning services” means the sale of services to customers that includes the sale/delivery of new solvent\nused in sink-on-drum or vat-type parts cleaning equipment, combined with the removal of used solvent. The term “solvent” encompasses\npetroleum hydrocarbons and aqueous cleaning solutions. Such services may or may not include the sale/provision/loan/lease of parts cleaning\nequipment and assistance with customer analysis and characterization, customer compliance and paperwork; but where included, fees for these\nadditional related services are included in the definition of parts cleaning revenue.\n \n \n(4) Non-Solicitation; Non-Piracy. During the Restricted Period, BRS and BCB will not directly or indirectly call on any person or business\norganization which was a customer of the Company during the BRSLP’s ownership of Units for Business within the Territory. Further, during the\nRestricted Period, BRS and BCB will not, without the consent of the Company, for BRS’s or BCB’s own account or for any third party, directly\nor indirectly solicit or endeavor to entice away, offer employment to or employ any person who was employed by the Company during the twelve\n(12) month period immediately before the cessation of such ownership.\n(5) [Omitted]\n(6) Default and Remedies. BRS and BCB acknowledge and agree that, if BRS, BCB or any of the other parties referenced herein directly or\nindirectly breaches, violates, or fails to perform fully the obligations under this Agreement (“Default”), each Default shall cause immediate and\nirreparable harm to the Company, in a manner which cannot be adequately compensated in damages. The Company, BRS and BCB agree that in\nthe event of any such Default, the Company, in addition to all other available remedies at law or in equity, may, insofar as BRS, BCB or the other\nparties referenced herein may be concerned, be entitled to temporary, preliminary and permanent injunctive relief to restrain such Default(s) by\nBRS, BCB or any of the other parties referenced herein, and to all of its costs, expenses, and reasonable attorneys’ fees incurred in any\nenforcement proceedings in which the Company prevails in whole or in part. Nothing contained herein shall restrict or limit in any manner the\nCompany’s right to obtain any form of relief, legal or equitable, in an action brought to enforce the Company’s rights.\n \n(7) Severability. All provisions of this Agreement are intended to be severable. Each provision of this Agreement constitutes a separate and\ndistinct covenant. In the event any term, provision, or restriction in this Agreement is held to be illegal, invalid or unenforceable in\nany respect, such finding shall in no way affect the legality, validity, or enforceability of all other provisions of this Agreement. The Company,\nBRS and BCB agree that any such unenforceable term, provision or restriction shall be deemed modified to the extent necessary to permit its\nenforcement to the maximum extent permitted by applicable law.\n(8) No Waiver of Rights. Neither any failure or any delay on the part of any party in exercising its rights shall operate as a waiver, nor shall a\nsingle or partial exercise preclude any further exercise of any right, power, or privilege by any party.\n(9) Governing I.aw; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State\nof Illinois. The state and federal courts located in Kane County, Illinois, shall be the courts of exclusive jurisdiction and venue over any\nenforcement of this Agreement.\n(10) Benefit. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and assigns of\nthe parties hereto. BRS hereby agrees that the provisions of this Agreement, other than the provisions of Section (3) hereof, may be assigned in\nwhole or in part by the Company to any person acquiring substantially all of the assets of the Company (whether by purchase, merger or other\nsimilar transaction), and BRS hereby consents to such assignment and agrees to be bound to the assignee under all of the terms and conditions of\nthis Agreement.\n(11) Notices. All notices and communications hereunder shall be in writing and shall be deemed to be duly given if delivered in accordance\nwith Section 10(g) of the Purchase Agreement.\n(12) Modification. No waiver, alteration or modification of any provision of this Agreement will be valid unless made in writing and signed\nby both parties hereto. The waiver of any breach or default shall not be deemed to waive any subsequent breach or default.\n(13) Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or\nquestion of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of\nproof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any\ndomestic federal, state or local statute or law, shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context\nrequires otherwise. The word “including” shall mean including without limitation. The parties intend that each representation, warranty, and\ncovenant contained therein shall have independent significance. If any party has breached any representation, warranty, or covenant contained\nherein in any respect, the fact that there exists another representation, warranty, or covenant relating to the same subject matter (regardless of the\nrelative levels of specificity) which the party has not breached shall not detract from or mitigate the fact that the party is in breach of the first\nrepresentation, warranty, or covenant.\n(14) Entire Agreement. This Agreement constitutes the entire agreement of the parties relative to the subject matter and supersedes any prior\nunderstanding, agreements or\nrepresentations by or among the parties, written or oral with regard to the subject matter of this Agreement.\n[Signature Pages Follow]\nIN WITNESS WHEREOQF, the parties have executed this Non-Competition and Non-Disclosure Agreement as of the date first above written. Heritage-Crystal Clean, LL.C\nBy: /s/ Joe Chalhoub\nJoe Chalhoub\nPresident and Chief Executive Officer\nBruckmann, Rosser, Sherrill & Co., Inc.\nBy: /s/ Bruce C. Bruckmann\nBruce C. Bruckmann\nTitle:\nBruckmann, Rosser, Sherrill & Co II, L.P.\nBy: Bruckmann, Rosser,\nSherrill & Co., Inc., its\nGeneral Partner\nBy: /s/ Bruce C. Bruckmann\nBruce C. Bruckmann\nManaging Director\nBRS-HCC Investment Co., Inc.\nBy: /s/ Bruce C. Bruckmann\nBruce C. Bruckmann\nPresident\n/s/ Bruce C. Bruckmann\nBruce C. Bruckmann\nIndividually	EX-10.35 26 c15909alexv10w35.htm NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.35\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT dated as of February 24, 2004, by and among (i) BRS-HCC\nInvestment Co., Inc. ("BRS-HCC"), Bruckmann, Rosser, Sherrill & Co. II, L.P., a Delaware limited partnership ("BRSLP"), Bruckmann,\nRosser, Sherrill & Co., Inc., a Delaware corporation ("BRSC") ("BRS-HCC", "BRSLP" and "BRSC" collectively "BRS"), and Bruce C.\nBruckmann, individually ("BCB"), and (ii) Heritage-Crystal Clean, LLC, an Indiana limited liability company ("Company.");\nWITNESSETH:\nWHEREAS, BRS-HCC is a Unit holder and Member of the Company, BRSLP is a lender to the Company and the holder of all of the capital\nstock of BRS-HCC, BRSC is the General Partner of BRSLP and BCB is a Managing Director of BRSC and it is anticipated that BCB will serve\nas a director of the Company; and as a result thereof, BRS and BCB have or will have access to and knowledge of all business information and\nconfidential data of the Company; and\nWHEREAS, BRSLP's right to subscribe for and receive ownership of Units in the Company is expressly conditioned upon BRS's and BCB's\nentering into this Non-Competition and Non-Disclosure Agreement;\nNOW, THEREFORE, in pursuant of the above and in consideration of the terms and conditions contained herein and for other good and\nvaluable considerations, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:\n(1) Consideration. BRS and BCB acknowledge that the consideration received by BRSLP under the Purchase Agreement dated February\n2004 ("Purchase Agreement") between the Company and BRSLP and BRSLP's Subscription Agreement dated as of the same date is good\nand sufficient consideration for BRS's and BCB's covenants, agreements and forbearances contained in this Agreement and that the Company\nwould not have allowed BRS-HCC to subscribe for Units but for BRS's and BCB's entering into this Agreement.\n(2) Non-Disclosure. Neither BRS nor BCB or any of BRS's partners, shareholders, directors, employees, agent or contractors will, at any\ntime following this date, disclose to any person, firm or corporation, any confidential information concerning the Company or its assets or\nbusiness, except as may be required by governmental law or regulation or in legal proceedings to which BRS, BCB or said other parties are\nsubpoenaed to give testimony, in which event BRS and/or BCB, as the case may be, shall notify the Company promptly upon learning that BRS,\nBCB or any of said parties may be required or compelled to divulge any confidential information. However, the foregoing shall not prohibit the\ndisclosure by BRS-HCC or BRSLP to its investors; however, BRSLP shall impose upon its investors reasonable confidentiality restrictions and\nBRSLP shall be liable for any breach by its investors of such confidentiality restrictions which results in damages to the Company. For purposes\nof this Agreement, "confidential information" consists of that proprietary information subject to protection under the Uniform Trade Secrets Act\nand includes, without limitation, the Company's customer list and\n2\nprice information for all customers and other intangible property. "Confidential information" does not include information in the public domain\nthrough no fault of BRS or BCB or reasonably discoverable without access to internal documents or information.\n(3) Non Competition. During the term of BRS-HCC's ownership of Units and for a period of two (2) years from the date of BRS-HCC's\ncessation of such ownership ("Restricted Period"), BRS and BCB will not, other than for the exclusive benefit of the Company, directly\nor\nindirectly engage in the Business (as defined below), whether as an employee, owner, member, manager, consultant, agent, partner, lender,\nservice provider or in any other capacity. For purposes of this Agreement, the term "Business" means the business of providing "parts cleaning\nservices" in the United States or Canada (the "Territory.") with annual parts cleaning revenues from such services equal to or greater than\n$1.0 million. For purposes hereof, "parts cleaning services" means the sale of services to customers that includes the sale/delivery of new solvent\nused in sink-on-drum or vat-type parts cleaning equipment, combined with the removal of used solvent. The term "solvent" encompasses\npetroleum hydrocarbons and aqueous cleaning solutions. Such services may or may not include the sale/provision/loan/lease of parts cleaning\nequipment and assistance with customer analysis and characterization, customer compliance and paperwork; but where included, fees for these\nadditional related services are included in the definition of parts cleaning revenue.\n(4) Non-Solicitation;. Non-Piracy. During the Restricted Period, BRS and BCB will not directly or indirectly call on any person or business\norganization which was a customer of the Company during the BRSLP's ownership of Units for Business within the Territory. Further, during the\nRestricted Period, BRS and BCB will not, without the consent of the Company, for BRS's or BCB's own account or for any third party, directly\nor indirectly solicit or endeavor to entice away, offer employment to or employ any person who was employed by the Company during the twelve\n(12) month period immediately before the cessation of such ownership.\n(5) [Omitted]\n(6) Default and Remedies. BRS and BCB acknowledge and agree that, if BRS, BCB or any of the other parties referenced herein directly\nor\nindirectly breaches, violates, or fails to perform fully the obligations under this Agreement ("Default"), each Default shall cause immediate and\nirreparable harm to the Company, in a manner which cannot be adequately compensated in damages. The Company, BRS and BCB agree that in\nthe event of any such Default, the Company, in addition to all other available remedies at law or in equity, may, insofar as BRS, BCB\nor\nthe\nother\nparties referenced herein may be concerned, be entitled to temporary, preliminary and permanent injunctive relief to restrain such Default(s) by\nBRS, BCB or any of the other parties referenced herein, and to all of its costs, expenses, and reasonable attorneys' fees incurred in any\nenforcement proceedings in which the Company prevails in whole or in part. Nothing contained herein shall restrict or limit in any manner the\nCompany's right to obtain any form of relief, legal or equitable, in an action brought to enforce the Company's rights.\n(7) Severability. All provisions of this Agreement are intended to be severable. Each provision of this Agreement constitutes a separate and\ndistinct covenant. In the event any term, provision, or restriction in this Agreement is held to be illegal, invalid or unenforceable in\n3\nany respect, such finding shall in no way affect the legality, validity, or enforceability of all other provisions of this Agreement. The Company,\nBRS and BCB agree that any such unenforceable term, provision or restriction shall be deemed modified to the extent necessary to permit its\nenforcement to the maximum extent permitted by applicable law.\n(8) No Waiver of Rights. Neither any failure or any delay on the part of any party in exercising its rights shall operate as a waiver, nor shall\na\nsingle or partial exercise preclude any further exercise of any right, power, or privilege by any party.\n(9)\nGoverning Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State\nof Illinois. The state and federal courts located in Kane County, Illinois, shall be the courts of exclusive jurisdiction and venue over any\nenforcement of this Agreement.\n(10) Benefit. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and assigns of\nthe parties hereto. BRS hereby agrees that the provisions of this Agreement, other than the provisions of Section (3) hereof, may be assigned in\nwhole or in part by the Company to any person acquiring substantially all of the assets of the Company (whether by purchase, merger or other\nsimilar transaction), and BRS hereby consents to such assignment and agrees to be bound to the assignee under all of the terms and conditions of\nthis Agreement.\n(11) Notices. All notices and communications hereunder shall be in writing and shall be deemed to be duly given if delivered in accordance\nwith Section 10(g) of the Purchase Agreement.\n(12) Modification. No waiver, alteration or modification of any provision of this Agreement will be valid unless made in writing and signed\nby both parties hereto. The waiver of any breach or default shall not be deemed to waive any subsequent breach or default.\n(13) Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or\nquestion of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden\nof\nproof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any\ndomestic\nfederal,\nstate\nor local statute or law, shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the\ncontext\nrequires otherwise. The word "including" shall mean including without limitation. The parties intend that each representation, warranty, and\ncovenant contained therein shall have independent significance. If any party has breached any representation, warranty, or covenant contained\nherein in any respect, the fact that there exists another representation, warranty, or covenant relating to the same subject matter (regardless of the\nrelative levels of specificity) which the party has not breached shall not detract from or mitigate the fact that the party is in breach of the first\nrepresentation, warranty, or covenant.\n(14) Entire Agreement. This Agreement constitutes the entire agreement of the parties relative to the subject matter and supersedes any prior\nunderstanding, agreements or\n4\nrepresentations by or among the parties, written or oral with regard to the subject matter of this Agreement.\n[Signature Pages Follow]\n5\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Non-Disclosure Agreement as of the date first above written.\nHeritage-Crystal Clean, LLC\nBRS-HCC Investment Co., Inc.\nBy:\n/s/ Joe Chalhoub\nBy: /s/ Bruce C. Bruckmann\nJoe Chalhoub\nBruce C. Bruckmann\nPresident and Chief Executive Officer\nPresident\nBruckmann, Rosser, Sherrill & Co., Inc.\nBy:\n/s/ Bruce C. Bruckmann\nBruce C. Bruckmann\nTitle:\nBruckmann, Rosser, Sherrill & Co II, L.P.\nBy:\nBruckmann, Rosser,\nSherrill & Co., Inc., its\nGeneral Partner\nBy:\n/s/ Bruce C. Bruckmann\n/s/ Bruce C. Bruckmann\nBruce C. Bruckmann\nBruce C. Bruckmann\nManaging Director\nIndividually	EX-10.35 26 c15909a1exv10w35.htm NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.35\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nNON-COMPETITION AND NON-DISCLOSURE AGREEMENT dated as of February 24, 2004, by and among (i) BRS-HCC\nInvestment Co., Inc. (“BRS-HCC”), Bruckmann, Rosser, Sherrill & Co. II, L.P., a Delaware limited partnership (“BRSLP”), Bruckmann,\nRosser, Sherrill & Co., Inc., a Delaware corporation (“BRSC”) (“BRS-HCC”, “BRSLP” and “BRSC” collectively “BRS”), and Bruce C.\nBruckmann, individually (“BCB”), and (ii) Heritage-Crystal Clean, LLC, an Indiana limited liability company (“Company”);\nWITNESSETH:\nWHEREAS, BRS-HCC is a Unit holder and Member of the Company, BRSLP is a lender to the Company and the holder of all of the capital\nstock of BRS-HCC, BRSC is the General Partner of BRSLP and BCB is a Managing Director of BRSC and it is anticipated that BCB will serve\nas a director of the Company; and as a result thereof, BRS and BCB have or will have access to and knowledge of all business information and\nconfidential data of the Company; and\nWHEREAS, BRSLP’s right to subscribe for and receive ownership of Units in the Company is expressly conditioned upon BRS’s and BCB’s\nentering into this Non-Competition and Non-Disclosure Agreement;\nNOW, THEREFORE, in pursuant of the above and in consideration of the terms and conditions contained herein and for other good and\nvaluable considerations, the receipt and legal sufficiency of which are hereby acknowledged, the parties agree as follows:\n(1) Consideration. BRS and BCB acknowledge that the consideration received by BRSLP under the Purchase Agreement dated February\n__ _ , 2004 (“Purchase Agreement”) between the Company and BRSLP and BRSLP’s Subscription Agreement dated as of the same date is good\nand sufficient consideration for BRS’s and BCB’s covenants, agreements and forbearances contained in this Agreement and that the Company\nwould not have allowed BRS-HCC to subscribe for Units but for BRS’s and BCB’s entering into this Agreement.\n(2) Non-Disclosure. Neither BRS nor BCB or any of BRS’s partners, shareholders, directors, employees, agent or contractors will, at any\ntime following this date, disclose to any person, firm or corporation, any confidential information concerning the Company or its assets or\nbusiness, except as may be required by governmental law or regulation or in legal proceedings to which BRS, BCB or said other parties are\nsubpoenaed to give testimony, in which event BRS and/or BCB, as the case may be, shall notify the Company promptly upon learning that BRS,\nBCB or any of said parties may be required or compelled to divulge any confidential information. However, the foregoing shall not prohibit the\ndisclosure by BRS-HCC or BRSLP to its investors; however, BRSLP shall impose upon its investors reasonable confidentiality restrictions and\nBRSLP shall be liable for any breach by its investors of such confidentiality restrictions which results in damages to the Company. For purposes\nof this Agreement, “confidential information” consists of that proprietary information subject to protection under the Uniform Trade Secrets Act\nand includes, without limitation, the Company’s customer list and\n2\nprice information for all customers and other intangible property. “Confidential information” does not include information in the public domain\nthrough no fault of BRS or BCB or reasonably discoverable without access to internal documents or information.\n(3) Non Competition. During the term of BRS-HCC’s ownership of Units and for a period of two (2) years from the date of BRS-HCC’s\ncessation of such ownership (“Restricted Period”), BRS and BCB will not, other than for the exclusive benefit of the Company, directly or\nindirectly engage in the Business (as defined below), whether as an employee, owner, member, manager, consultant, agent, partner, lender,\nservice provider or in any other capacity. For purposes of this Agreement, the term “Business” means the business of providing “parts cleaning\nservices” in the United States or Canada (the “Territory”) with annual parts cleaning revenues from such services equal to or greater than\n$1.0 million. For purposes hereof, “parts cleaning services” means the sale of services to customers that includes the sale/delivery of new solvent\nused in sink-on -drum or vat-type parts cleaning equipment, combined with the removal of used solvent. The term “solvent” encompasses\npetroleum hydrocarbons and aqueous cleaning solutions. Such services may or may not include the sale/provision/loan/lease of parts cleaning\nequipment and assistance with customer analysis and characterization, customer compliance and paperwork; but where included, fees for these\nadditional related services are included in the definition of parts cleaning revenue.\n(4) Non-Solicitation; Non-Piracy. During the Restricted Period, BRS and BCB will not directly or indirectly call on any person or business\norganization which was a customer of the Company during the BRSLP’s ownership of Units for Business within the Territory. Further, during the\nRestricted Period, BRS and BCB will not, without the consent of the Company, for BRS’s or BCB’s own account or for any third party, directly\nor indirectly solicit or endeavor to entice away, offer employment to or employ any person who was employed by the Company during the twelve\n(12) month period immediately before the cessation of such ownership.\n(5) [Omitted]\n(6) Default and Remedies. BRS and BCB acknowledge and agree that, if BRS, BCB or any of the other parties referenced herein directly or\nindirectly breaches, violates, or fails to perform fully the obligations under this Agreement (“Default”), each Default shall cause immediate and\nirreparable harm to the Company, in a manner which cannot be adequately compensated in damages. The Company, BRS and BCB agree that in\nthe event of any such Default, the Company, in addition to all other available remedies at law or in equity, may, insofar as BRS, BCB or the other\nparties referenced herein may be concerned, be entitled to temporary, preliminary and permanent injunctive relief to restrain such Default(s) by\nBRS, BCB or any of the other parties referenced herein, and to all of its costs, expenses, and reasonable attorneys’ fees incurred in any\nenforcement proceedings in which the Company prevails in whole or in part. Nothing contained herein shall restrict or limit in any manner the\nCompany’s right to obtain any form of relief, legal or equitable, in an action brought to enforce the Company’s rights.\n(7) Severability. All provisions of this Agreement are intended to be severable. Each provision of this Agreement constitutes a separate and\ndistinct covenant. In the event any term, provision, or restriction in this Agreement is held to be illegal, invalid or unenforceable in\n3\nany respect, such finding shall in no way affect the legality, validity, or enforceability of all other provisions of this Agreement. The Company,\nBRS and BCB agree that any such unenforceable term, provision or restriction shall be deemed modified to the extent necessary to permit its\nenforcement to the maximum extent permitted by applicable law.\n(8) No Waiver of Rights. Neither any failure or any delay on the part of any party in exercising its rights shall operate as a waiver, nor shall a\nsingle or partial exercise preclude any further exercise of any right, power, or privilege by any party.\n(9) Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State\nof Illinois. The state and federal courts located in Kane County, Illinois, shall be the courts of exclusive jurisdiction and venue over any\nenforcement of this Agreement.\n(10) Benefit. This Agreement shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and assigns of\nthe parties hereto. BRS hereby agrees that the provisions of this Agreement, other than the provisions of Section (3) hereof, may be assigned in\nwhole or in part by the Company to any person acquiring substantially all of the assets of the Company (whether by purchase, merger or other\nsimilar transaction), and BRS hereby consents to such assignment and agrees to be bound to the assignee under all of the terms and conditions of\nthis Agreement.\n(11) Notices. All notices and communications hereunder shall be in writing and shall be deemed to be duly given if delivered in accordance\nwith Section 10(g) of the Purchase Agreement.\n(12) Modification. No waiver, alteration or modification of any provision of this Agreement will be valid unless made in writing and signed\nby both parties hereto. The waiver of any breach or default shall not be deemed to waive any subsequent breach or default.\n(13) Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or\nquestion of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of\nproof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any\ndomestic federal, state or local statute or law, shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context\nrequires otherwise. The word “including” shall mean including without limitation. The parties intend that each representation, warranty, and\ncovenant contained therein shall have independent significance. If any party has breached any representation, warranty, or covenant contained\nherein in any respect, the fact that there exists another representation, warranty, or covenant relating to the same subject matter (regardless of the\nrelative levels of specificity) which the party has not breached shall not detract from or mitigate the fact that the party is in breach of the first\nrepresentation, warranty, or covenant.\n(14) Entire Agreement. This Agreement constitutes the entire agreement of the parties relative to the subject matter and supersedes any prior\nunderstanding, agreements or\n4\nrepresentations by or among the parties, written or oral with regard to the subject matter of this Agreement.\n[Signature Pages Follow]\n5\nIN WITNESS WHEREOF, the parties have executed this Non-Competition and Non-Disclosure Agreement as of the date first above written.\nHeritage-Crystal Clean, LLC\nBRS-HCC Investment Co., Inc.\nBy: /s/ Joe Chalhoub\nBy: /s/ Bruce C. Bruckmann\nJoe Chalhoub\nBruce C. Bruckmann\nPresident and Chief Executive Officer\nPresident\nBruckmann, Rosser, Sherrill & Co., Inc.\nBy: /s/ Bruce C. Bruckmann\nBruce C. Bruckmann\nTitle:\nBruckmann, Rosser, Sherrill & Co II, L.P.\nBy: Bruckmann, Rosser,\nSherrill & Co., Inc., its\nGeneral Partner\nBy: /s/ Bruce C. Bruckmann\n/s/ Bruce C. Bruckmann\nBruce C. Bruckmann\nBruce C. Bruckmann\nManaging Director\nIndividually
+9d70181e77cf74279fb6712c569da104.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 11 d344046dex99d3.htm CONFIDENTIALITY LETTER AGREEMENT\nExhibit (d)(3)\nImperial Sugar Company\n8016 Highway 90-A\nSugar Land, TX 77487\nJuly 22, 2011\nLouis Dreyfus Commodities LLC\n40 Danbury Road\nP.O. Box 810\nWilton, CT 06897\nAttention: Scott Hogan\nVice President & Treasurer\nDear Mr. Hogan:\nYou have requested certain non-public information regarding Imperial Sugar Company (the “Company” or “us”) in connection with a potential\nbusiness transaction with the Company (the “Transaction”). As a condition to furnishing such information to you, the Company is requiring you to\nagree to the following provisions set forth in this Confidentiality Agreement (this “Agreement”).\n1. Certain Definitions. As used in this Agreement:\n(a) “Company Affiliate” means, with respect to the Company, any other Person that directly or indirectly controls, is controlled by, or is\nunder common control with such specified Person. The term “control,” when used with respect to any specified Person, means the power to direct or\ncause the direction of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and\nthe terms “controlling” and “controlled” have correlative meanings.\n(b) “Business Relations” means the customers, suppliers, distributors, licensees, licensors, joint venture partners, clients and other\nbusiness relations of the Company and its Affiliates.\n(c) “including” means “including, without limitation.”\n(d) “Evaluation Material” means any information or data concerning the Company or any Company Affiliates, whether in oral, visual,\nwritten, electronic or other form, that is disclosed in connection with the Transaction to you, the Louis Dreyfus Commodities Affiliates or any of\nyour or their Representatives, together with all notes, memoranda, summaries, analyses, compilations and other writings relating thereto that are\nprepared by you, the Louis Dreyfus Commodities Affiliates or any of your or their Representatives to the extent that it uses, contains, reflects or is\nderived from or that incorporates any such information or data. Notwithstanding the foregoing, “Evaluation Material” does not include information\nor data that you can demonstrate (i) was, prior to disclosure to you by the Company, Company Affiliates or its Representatives, already known to\nyou, the Louis Dreyfus\nCommodities Affiliates or your or their Representatives; (ii) is or was independently developed by you, the Louis Dreyfus Commodities Affiliates or\nyour or their Representatives without the benefit of the Evaluation Material; (iii) is or becomes available to the public, other than as a result of\ndisclosure by you, the Louis Dreyfus Commodities Affiliates or your or their Representatives in violation of this Agreement; (iv) is or becomes\navailable to you or the Louis Dreyfus Commodities Affiliates from a source other than the Company, Company Affiliates or any of its\nRepresentatives, so long as that source is not actually known to you or the Louis Dreyfus Commodities Affiliates to be subject to a confidentiality\nobligation to the Company; or (v) is provided by Company, Company Affiliates or its Representatives to you, the Louis Dreyfus Commodities\nAffiliates or your or their Representatives in connection with contracts or commercial transactions or relationships entered into in the ordinary course\nof business between the Company or any Company Affiliates, on one hand, and you or any of the Louis Dreyfus Commodities Affiliates on the other\nhand.\n(e) “LDC Affiliate” means Louis Dreyfus Commodities LLC and those Persons controlled by Louis Dreyfus Commodities LLC.\n(f) “LDC Parent Affiliate” means any of those Persons that is listed on Exhibit A.\n(g) “Louis Dreyfus Commodities Affiliate” means collectively the LDC Affiliates and the LDC Parent Affiliates.\n(h) “Person” means any natural person, business, corporation, company, association, limited liability company, partnership, limited\npartnership, limited liability partnership, joint venture, business enterprise, trust, governmental authority or other legal entity.\n(i) “Representatives” means the partners, members, directors, officers, employees, managers, agents and advisors (including attorneys,\naccountants, auditors, investment bankers and consultants) and the current debt lenders of a specified Person. Representatives of the Company\ninclude Perella Weinberg Partners (“PWP”), the Company’s advisors.\n2. Confidentiality, Use and Disclosure of Evaluation Material.\n(a) Confidentiality and Use of Evaluation Material. You agree that all Evaluation Material shall be: (i) used by you solely for the purpose\nof evaluating the Transaction; (ii) kept strictly confidential; and (iii) provided by you only to those of your Representatives and Louis Dreyfus\nCommodities Affiliates and their Representatives to whom disclosure is needed in order to facilitate your evaluation of the Transaction. All\nEvaluation Material (and the knowledge that discussions are taking place between the Company and you and others) shall not be used by you, the\nLouis Dreyfus Commodities Affiliates or your or their Representatives for any purpose other than evaluating the Transaction. Before providing\naccess to any Evaluation Material to any of the Louis Dreyfus Commodities Affiliates or any of your or their Representatives, you shall inform them\nof the restrictions set forth in this Agreement that are applicable to them and instruct them to comply with such provisions. Nothing herein will\n2\nprohibit or restrict the right of you, the Louis Dreyfus Commodities Affiliates or any of your or their Representatives to develop, use or market\nproducts or services similar to or competitive with ours as long as you do not use Evaluation Material to do so.\n(b) Compulsory Disclosure of Evaluation Material. In the event that you, a Louis Dreyfus Commodities Affiliate or any of your or their\nRepresentatives is requested or required (by interrogatories, requests for information, subpoena or similar legal process) to disclose any Evaluation\nMaterial, if allowed by applicable law, you shall provide the Company with prompt written notice thereof so that the Company may seek an\nappropriate protective order and/or, in its sole discretion, waive your compliance with the provisions of this Agreement. If, in the absence of such a\nprotective order or waiver, you, a Louis Dreyfus Commodities Affiliate or any of your or their Representatives are nonetheless legally compelled to\ndisclose any Evaluation Material, then you or such Louis Dreyfus Commodities Affiliate or Representative may disclose such portion of the\nEvaluation Material that you are advised by counsel is legally required to be disclosed without liability under this Agreement, and you will\nreasonably cooperate with the Company in its efforts to obtain assurances that such disclosed Evaluation Material will be afforded confidential\ntreatment.\n3. Other Disclosure. Except for such disclosure as is necessary for you or us not to be in violation of any applicable law, regulation, order or\nlisting agreement, you, the Louis Dreyfus Commodities Affiliates and your or their Representatives, and we, Company Affiliates and our\nRepresentatives shall not: (a) make any disclosure to any other Person of (i) the fact that discussions, negotiations or investigations are taking or\nhave taken place between us concerning the Transaction, (ii) the existence or contents of this Agreement, (iii) the fact that you, the Louis Dreyfus\nCommodities Affiliates or your or their Representatives have requested or received Evaluation Material or (iv) any of the terms, conditions or facts\nrelating to a Transaction involving you, including the status thereof; or (b) make any public statement concerning a Transaction involving you (any\ndisclosure or statement described in clauses (a) or (b) being a “Public Statement”). If either party is required to make any Public Statement for such\nparty not to be in violation of any applicable law, regulation, order or listing agreement, then if allowed by applicable law, regulation, order or listing\nagreement such party shall (x) provide the other party with the text of such Public Statement as far in advance of its disclosure as is practicable and\n(y) consider in good faith such party’s suggestions concerning the nature and scope of the information to be contained therein.\n4. Securities Law Restrictions. You acknowledge that: (a) the Evaluation Material may contain material non-public information concerning the\nCompany and Company Affiliates; (b) you are aware of the restrictions imposed by U.S . federal and state securities laws, and the rules and\nregulations promulgated thereunder, on Persons in possession of material non-public information; and (c) you will not (and you will cause the Louis\nDreyfus Commodities Affiliates and your and their Representatives to not), directly or indirectly, use, or allow any third party to use, any Evaluation\nMaterial in contravention of any U.S . federal or state securities laws. Nothing herein shall constitute an admission by either party that any Evaluation\nMaterial in fact contains material non-public information concerning the Company or any Company Affiliates.\n3\n5. No Representations or Warranties. You acknowledge and agree that: (a) no representation or warranty, express or implied, is made by us,\nCompany Affiliates or any of our Representatives as to the accuracy or completeness of any of the Evaluation Material; and (b) you shall be entitled\nto rely only on those representations and warranties that may be made in a definitive written agreement to consummate the Transaction that is\nexecuted and delivered by both you and us (a “Definitive Transaction Agreement”). Neither the Company nor any Company Affiliates or\nRepresentatives shall have any liability to you or any of your Representatives on account of the use of any Evaluation Material by you, the Louis\nDreyfus Commodities Affiliates or any of your or their Representatives or any inaccuracy therein or omission therefrom unless otherwise provided\nin a Definitive Transaction Agreement.\n6. Return, Destruction or Erasure of Evaluation Material. If you decide not to proceed with the Transaction, then you shall promptly notify\nDawn Scheirer of PWP (the “Company Representative”) of that decision. Within thirty (30) days after the Company’s written request, you shall\neither return, destroy or erase all Evaluation Material in the possession or control of you, any Louis Dreyfus Commodities Affiliate or any of your or\ntheir Representatives (and, in the case of destruction or erasure, certify such destruction or erasure to us) , except to the extent and for such period\nthat you, the Louis Dreyfus Commodities Affiliates or your or their Representatives are prohibited from doing so by applicable law, rule, regulation\nor court or administrative order. The parties recognize that it may not be possible to destroy separately or completely materials that have been stored\nor transmitted electronically within the above 30-day time period and that destruction of such material shall be made to the extent practicable and in\naccordance with your, the Louis Dreyfus Commodities Affiliates’ and your Representatives’ applicable ongoing records retention procedures.\nNotwithstanding anything to the contrary herein, it is understood and agreed by Company that your, the Louis Dreyfus Commodities Affiliates’ and\nyour or their Representatives’ computer systems may automatically back-up Confidential Information disclosed to it. To the extent that such\ncomputer back-up procedures create copies of the Confidential Information, you, the Louis Dreyfus Commodities Affiliates and your or their\nRepresentatives may retain such copies in its archival or back-up computer storage for the period such party normally archive backed-up computer\nrecords, which copies shall be subject to this provision of this Agreement and shall be destroyed in accordance with the Louis Dreyfus Commodities\nAffiliates’ and your and their Representatives’ applicable ongoing records retention procedures.\n7. Communications Regarding the Transaction. You agree that all communications concerning the Transaction and your due diligence\ninvestigation (including requests for additional Evaluation Material, meetings with management, site visits and discussions or questions regarding\nthe Transaction) shall be directed solely to the Company Representative, or such other Persons as the Company Representative may designate in\nwriting. Except in the ordinary course of business (including transactions similar to, or generally consistent with, transactions previously entered into\nbetween such parties), you, the Louis Dreyfus Commodities Affiliates and your or their Representatives shall not contact or communicate with any\nof the directors, officers, employees or Business Relations of the Company or any of the Company Affiliates about the Company, Company\nAffiliates, the Transaction or any Evaluation Material, unless approved in advance and in writing by the Company Representative.\n4\n8. Restrictive Covenants.\n(a) No Solicitation of Employees. You and the Louis Dreyfus Commodities Affiliates and your and their respective members, managers,\ndirectors, officers and employees shall not, directly or indirectly, solicit for employment or hire any executive employees of the Company for a\nperiod of one year after the date of this Agreement; provided that you and the Louis Dreyfus Commodities Affiliates and your and their respective\nmembers, managers, directors, officers and employees shall not be restricted from (i) making any general solicitation for employment that is not\nspecifically directed at any such employee and (ii) hiring any such employee who responds to any such general solicitation or who first contacts you,\nany Louis Dreyfus Commodities Affiliate or your or their members, managers, directors, officers or employees regarding employment without any\nsolicitation in violation of this Section 8(a).\n9. Standstill. You and the Louis Dreyfus Commodities Affiliates and your and their respective members, managers, directors, officers and\nemployees shall not, for a period of 15 months after the date of this Agreement, directly or indirectly:\n(a) make any statement or proposal to the board of directors of the Company, to any of our Representatives or to any of our stockholders\nwith respect to, or make any public announcement, proposal or offer (including any “solicitation” of “proxies” as such terms are defined or used in\nRegulation 14A of the Securities Exchange Act of 1934, as amended) with respect to, or otherwise solicit, seek or offer to effect (i) any business\ncombination, merger, tender offer, exchange offer or similar transaction involving the Company, (ii) any restructuring, recapitalization, liquidation or\nsimilar transaction involving the Company, (iii) any acquisition of any of our securities or assets, or rights or options to acquire interests in any of\nour securities or assets, (iv) any proposal to seek representation on the board of directors of the Company or otherwise seek to control or influence\nthe management, board of directors or policies of the Company, or (v) any request or proposal to waive, terminate or amend the provisions of this\nAgreement;\n(b) instigate, encourage or assist any third party (including forming a “group” with any such third party) to do any of the actions set forth\nin clause (a) above;\n(c) take any action which would reasonably be expected to require the Company to make a public announcement regarding any of the\nactions set forth in clause (a) above; or\n(d) acquire, own or sell (or seek permission to acquire, own or sell), of record or beneficially, by purchase, sale or otherwise, any\nsecurities, properties or indebtedness of the Company (except that you may purchase for investment in market transactions up to 1% of our\noutstanding common stock);\nin each case unless and until you have received the prior written invitation or approval of our board of directors to do any of the foregoing. The\nforegoing shall not apply to your Representatives or those of Louis Dreyfus Commodities Affiliates effecting or recommending transactions in\nsecurities in the ordinary course of their business as an investment advisor, broker, dealer in securities, market maker, specialist or block positioner.\nNotwithstanding the\n5\nforegoing (i) nothing herein shall restrict you or the Louis Dreyfus Commodities Affiliates from entering into commercial transactions in the\nordinary course of business with the Company or Company Affiliates (including transactions similar to, or generally consistent with, transactions\npreviously entered into between such parties), and (ii) the foregoing restrictions shall cease to be of any effect in the event the Company publicly\nannounces that it has entered into an agreement or discussions with another Person to effect any transaction described in subpart (a) above.\n10. No Joint Bidding. You and the Louis Dreyfus Commodities Affiliates and your and their respective members, managers, directors, officers\nand employees shall not, without the prior written consent of the Company Representative: (a) act as a joint bidder or co-bidder with any other\nPerson with respect to the Transaction or (b) enter into any discussions, negotiations, understandings or agreements (whether written or oral) with\nany other Person regarding the Transaction, other than with your Representatives.\n11. Remedies. Each party agrees that money damages would not be a sufficient remedy for a breach or a threatened breach of this Agreement\nand that each party shall be entitled to specific performance and injunctive or other equitable relief without the posting of a bond or other security as\na remedy for any such breach or threatened breach, in addition to all other remedies available at law or in equity; provided that in no event will either\nparty, any Company Affiliate, any Louis Dreyfus Commodities Affiliate or any of their respective Representatives be liable for any lost profits,\nconsequential punitive or exemplary damages even if such Person has been advised of the possibility of such damages. Such injunctive or other\nequitable relief shall be available without the obligation to prove any damages underlying such breach or threatened breach. No failure or delay by\nany party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof\npreclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event of any legal proceeding for the\nenforcement of this Agreement, the reasonable fees and disbursements of counsel to the prevailing party shall be reimbursed by the non-prevailing\nparty to the extent of prevailing party’s success.\n12. No Waiver of Privilege. To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, the Company\nis not waiving and shall not be deemed to have waived or diminished its attorney work-product protections, attorney-client privileges or similar\nprotections and privileges as a result of disclosing any Evaluation Material (including Evaluation Material related to pending or threatened litigation)\nto you.\n13. Liability for Representatives. You shall be liable for any breaches of this Agreement by any of the Louis Dreyfus Commodities Affiliates or\nyour or their Representatives, to the extent applicable to such Persons.\n14. Term. This Agreement shall expire three years from the date of this Agreement. Any action arising out of this Agreement, including to\nenforce its provisions, must be commenced on or before the date that is five years from the date of this Agreement.\n6\n15. Miscellaneous.\n(a) Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the matters set forth\nherein.\n(b) No License. The parties acknowledge and agree that neither the Company nor any of its Representatives grants any license or other\nproperty right or interest in, by implication or otherwise, any copyright, patent, trademark, mask work, database or other intellectual or intangible\nproperty or proprietary information disclosed, embodied, fixed, comprised or contained in any Evaluation Material.\n(c) Assignment; Successors. Neither this Agreement nor any of the rights or obligations hereunder shall be assigned by any party without\nthe prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and unenforceable. Any purchaser\nof the Company or all or substantially all of the Company’s assets shall be entitled to the benefits of this Agreement whether or not this Agreement is\nassigned to such Person.\n(d) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly signed\nand delivered by or on behalf of both parties.\n(e) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or\nenforceability of any other provision of this Agreement, unless the enforcement of such other provision in such circumstances would be inequitable.\n(f) No Obligation to Complete a Transaction. This Agreement is not intended to, and does not, constitute an agreement or impose any\nobligation on either party: (i) to consummate a Transaction, (ii) to conduct or continue discussions or negotiations concerning a Transaction or (iii) to\nenter into a Definitive Transaction Agreement. Neither party shall have any rights or obligations of any kind whatsoever with respect to a\nTransaction by virtue of this Agreement or any other written or oral expression by the parties’ respective Representatives unless and until a\nDefinitive Transaction Agreement is executed and delivered. You acknowledge and agree that the Company reserves the right (A) to conduct the\nprocess for a possible Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any prospective buyer\nand entering into definitive agreements without prior notice to you or any other person), (B) to change any procedures relating to such a Transaction\nat any time without notice to you or any other person, (C) to provide or not to provide Evaluation Material to, and to request the return of Evaluation\nMaterial from, you or any of your Representatives, (D) to reject any proposals made by you or any of your Representatives, (E) to reject or accept\nany potential buyer, proposal or offer, or to terminate discussions or negotiations with you or any of your Representatives at any time for any reason\nwhatsoever, in its sole discretion, and (F) to engage in discussions and negotiations, and to enter into any agreement, with any other potential\nacquirer or business partner, in each case in the Company’s sole discretion, without notice to you, at any time and for any reason or no reason. You\nshall not have any claim or cause of action against the Company or any of its Representatives in respect of the foregoing, other than pursuant to a\nDefinitive Transaction Agreement.\n7\n(g) Governing Law; Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas\nwithout regard to the principles of conflicts of laws in any jurisdiction. Each party consents and submits to the exclusive jurisdiction of (a) the courts\nof the State of Texas located in Harris County, Texas and the United States District Court for the Southern District of Texas or (b) the United States\nDistrict Court for the Southern District of New York and any of the New York state courts sitting in New York County for the adjudication of any\naction or legal proceeding relating to or arising out of this Agreement and the transactions contemplated hereby (and each party agrees not to\ncommence any action or legal proceeding relating thereto except in any such court). Each party hereby irrevocably and unconditionally waives any\nobjection which it may now or hereafter have to the laying of venue in such courts and agrees not to plead or claim in any such court that any such\naction or legal proceeding brought in any such court has been brought in an inconvenient forum. EACH PARTY HEREBY WAIVES ITS RIGHT\nTO JURY TRIAL OF ANY DISPUTE OR ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n(h) Counterparts. This Agreement may be signed in any number of counterparts (including by fax and PDF) with the same effect as if the\nsignatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. This\nAgreement shall become effective when, and only when, each party hereto shall have received a counterpart hereof signed by the other party hereto\n[Signature page follows]\n8\nIf the foregoing correctly sets forth our agreement, please sign and return one copy of this Agreement to Louis T. Bolognini of the Company (the\nCompany’s General Counsel), at facsimile number 281-490-9881 or by PDF and to Mark Underberg of Paul, Weiss, Rifkind, Wharton & Garrison\nLLP (the Company’s counsel), at facsimile number 212-492-0368 or by PDF, whereupon this Agreement shall constitute our binding agreement with\nrespect to the matters set forth herein.\nVery truly yours,\nIMPERIAL SUGAR COMPANY\nBy: /s/ John C. Sheptor\nName: John C. Sheptor\nTitle: President & CEO\nAccepted and agreed to\nas of the date first written above:\nLOUIS DREYFUS COMMODITIES LLC\nBy: /s/ Scott Hogan\nName: Scott Hogan\nTitle: Vice President & Treasurer\nSignature Page to Confidentiality Agreement\nEXHIBIT A\nLouis Dreyfus Commodities Holdings B.V.\nLouis Dreyfus Commodities B.V.\nLouis Dreyfus Commodities Suisse SA\nLouis Dreyfus Commodities Services Suisse SA\nLDC Holding Inc.\nSignature Page to Confidentiality Agreement	EX-99.(D)(3) 11 d344046dex99d3.htm CONFIDENTIALITY LETTER AGREEMENT\nExhibit (d)(3)\nImperial Sugar Company\n8016 Highway 90-A\nSugar Land, TX 77487\nJuly 22, 2011\nLouis Dreyfus Commodities LL.C\n40 Danbury Road\nP.O. Box 810\nWilton, CT 06897\nAttention: Scott Hogan\nVice President & Treasurer\nDear Mr. Hogan:\nYou have requested certain non-public information regarding Imperial Sugar Company (the “Company” or “us”) in connection with a potential\nbusiness transaction with the Company (the “Transaction”). As a condition to furnishing such information to you, the Company is requiring you to\nagree to the following provisions set forth in this Confidentiality Agreement (this “Agreement”).\n1. Certain Definitions. As used in this Agreement:\n(a) “Company Affiliate” means, with respect to the Company, any other Person that directly or indirectly controls, is controlled by, or is\nunder common control with such specified Person. The term “control,” when used with respect to any specified Person, means the power to direct or\ncause the direction of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and\nthe terms “controlling” and “controlled” have correlative meanings.\n(b) “Business Relations” means the customers, suppliers, distributors, licensees, licensors, joint venture partners, clients and other\nbusiness relations of the Company and its Affiliates.\n(c) “including” means “including, without limitation.”\n(d) “Evaluation Material” means any information or data concerning the Company or any Company Affiliates, whether in oral, visual,\nwritten, electronic or other form, that is disclosed in connection with the Transaction to you, the Louis Dreyfus Commodities Affiliates or any of\nyour or their Representatives, together with all notes, memoranda, summaries, analyses, compilations and other writings relating thereto that are\nprepared by you, the Louis Dreyfus Commodities Affiliates or any of your or their Representatives to the extent that it uses, contains, reflects or is\nderived from or that incorporates any such information or data. Notwithstanding the foregoing, “Evaluation Material” does not include information\nor data that you can demonstrate (i) was, prior to disclosure to you by the Company, Company Affiliates or its Representatives, already known to\nyou, the Louis Dreyfus\nCommodities Affiliates or your or their Representatives; (ii) is or was independently developed by you, the Louis Dreyfus Commodities Affiliates or\nyour or their Representatives without the benefit of the Evaluation Material; (iii) is or becomes available to the public, other than as a result of\ndisclosure by you, the Louis Dreyfus Commodities Affiliates or your or their Representatives in violation of this Agreement; (iv) is or becomes\navailable to you or the Louis Dreyfus Commodities Affiliates from a source other than the Company, Company Affiliates or any of its\nRepresentatives, so long as that source is not actually known to you or the Louis Dreyfus Commodities Affiliates to be subject to a confidentiality\nobligation to the Company; or (v) is provided by Company, Company Affiliates or its Representatives to you, the Louis Dreyfus Commodities\nAffiliates or your or their Representatives in connection with contracts or commercial transactions or relationships entered into in the ordinary course\nof business between the Company or any Company Affiliates, on one hand, and you or any of the Louis Dreyfus Commodities Affiliates on the other\nhand.\n(e) “LDC Affiliate” means Louis Dreyfus Commodities LL.C and those Persons controlled by Louis Dreyfus Commodities LLC.\n(f) “LDC Parent Affiliate” means any of those Persons that is listed on Exhibit A.\n(g) “Louis Dreyfus Commodities Affiliate” means collectively the LDC Affiliates and the LDC Parent Affiliates.\n(h) “Person” means any natural person, business, corporation, company, association, limited liability company, partnership, limited\npartnership, limited liability partnership, joint venture, business enterprise, trust, governmental authority or other legal entity.\n \n(i) “Representatives” means the partners, members, directors, officers, employees, managers, agents and advisors (including attorneys,\naccountants, auditors, investment bankers and consultants) and the current debt lenders of a specified Person. Representatives of the Company\ninclude Perella Weinberg Partners (“PWP”), the Company’s advisors.\n2. Confidentiality, Use and Disclosure of Evaluation Material.\n(a) Confidentiality and Use of Evaluation Material. You agree that all Evaluation Material shall be: (i) used by you solely for the purpose\nof evaluating the Transaction; (ii) kept strictly confidential; and (iii) provided by you only to those of your Representatives and Louis Dreyfus\nCommodities Affiliates and their Representatives to whom disclosure is needed in order to facilitate your evaluation of the Transaction. All\nEvaluation Material (and the knowledge that discussions are taking place between the Company and you and others) shall not be used by you, the\nLouis Dreyfus Commodities Affiliates or your or their Representatives for any purpose other than evaluating the Transaction. Before providing\naccess to any Evaluation Material to any of the Louis Dreyfus Commodities Affiliates or any of your or their Representatives, you shall inform them\nof the restrictions set forth in this Agreement that are applicable to them and instruct them to comply with such provisions. Nothing herein will\n2\nprohibit or restrict the right of you, the Louis Dreyfus Commodities Affiliates or any of your or their Representatives to develop, use or market\nproducts or services similar to or competitive with ours as long as you do not use Evaluation Material to do so.\n(b) Compulsory Disclosure of Evaluation Material. In the event that you, a Louis Dreyfus Commodities Affiliate or any of your or their\nRepresentatives is requested or required (by interrogatories, requests for information, subpoena or similar legal process) to disclose any Evaluation\nMaterial, if allowed by applicable law, you shall provide the Company with prompt written notice thereof so that the Company may seek an\nappropriate protective order and/or, in its sole discretion, waive your compliance with the provisions of this Agreement. If, in the absence of such a\nprotective order or waiver, you, a Louis Dreyfus Commodities Affiliate or any of your or their Representatives are nonetheless legally compelled to\ndisclose any Evaluation Material, then you or such Louis Dreyfus Commodities Affiliate or Representative may disclose such portion of the\nEvaluation Material that you are advised by counsel is legally required to be disclosed without liability under this Agreement, and you will\nreasonably cooperate with the Company in its efforts to obtain assurances that such disclosed Evaluation Material will be afforded confidential\ntreatment.\n3. Other Disclosure. Except for such disclosure as is necessary for you or us not to be in violation of any applicable law, regulation, order or\nlisting agreement, you, the Louis Dreyfus Commodities Affiliates and your or their Representatives, and we, Company Affiliates and our\nRepresentatives shall not: (a) make any disclosure to any other Person of (i) the fact that discussions, negotiations or investigations are taking or\nhave taken place between us concerning the Transaction, (ii) the existence or contents of this Agreement, (iii) the fact that you, the Louis Dreyfus\nCommodities Affiliates or your or their Representatives have requested or received Evaluation Material or (iv) any of the terms, conditions or facts\nrelating to a Transaction involving you, including the status thereof; or (b) make any public statement concerning a Transaction involving you (any\ndisclosure or statement described in clauses (a) or (b) being a “Public Statement”). If either party is required to make any Public Statement for such\nparty not to be in violation of any applicable law, regulation, order or listing agreement, then if allowed by applicable law, regulation, order or listing\nagreement such party shall (x) provide the other party with the text of such Public Statement as far in advance of its disclosure as is practicable and\n(y) consider in good faith such party’s suggestions concerning the nature and scope of the information to be contained therein.\n4. Securities Law Restrictions. You acknowledge that: (a) the Evaluation Material may contain material non-public information concerning the\nCompany and Company Affiliates; (b) you are aware of the restrictions imposed by U.S. federal and state securities laws, and the rules and\nregulations promulgated thereunder, on Persons in possession of material non-public information; and (c) you will not (and you will cause the Louis\nDreyfus Commodities Affiliates and your and their Representatives to not), directly or indirectly, use, or allow any third party to use, any Evaluation\nMaterial in contravention of any U.S. federal or state securities laws. Nothing herein shall constitute an admission by either party that any Evaluation\nMaterial in fact contains material non-public information concerning the Company or any Company Affiliates.\n3\n5. No Representations or Warranties. You acknowledge and agree that: (a) no representation or warranty, express or implied, is made by us,\nCompany Affiliates or any of our Representatives as to the accuracy or completeness of any of the Evaluation Material; and (b) you shall be entitled\nto rely only on those representations and warranties that may be made in a definitive written agreement to consummate the Transaction that is\nexecuted and delivered by both you and us (a “Definitive Transaction Agreement”). Neither the Company nor any Company Affiliates or\nRepresentatives shall have any liability to you or any of your Representatives on account of the use of any Evaluation Material by you, the Louis\nDreyfus Commodities Affiliates or any of your or their Representatives or any inaccuracy therein or omission therefrom unless otherwise provided\nin a Definitive Transaction Agreement.\n6. Return, Destruction or Erasure of Evaluation Material. If you decide not to proceed with the Transaction, then you shall promptly notify\nDawn Scheirer of PWP (the “Company Representative”) of that decision. Within thirty (30) days after the Company’s written request, you shall\neither return, destroy or erase all Evaluation Material in the possession or control of you, any Louis Dreyfus Commodities Affiliate or any of your or\ntheir Representatives (and, in the case of destruction or erasure, certify such destruction or erasure to us) , except to the extent and for such period\nthat you, the Louis Dreyfus Commodities Affiliates or your or their Representatives are prohibited from doing so by applicable law, rule, regulation\nor court or administrative order. The parties recognize that it may not be possible to destroy separately or completely materials that have been stored\nor transmitted electronically within the above 30-day time period and that destruction of such material shall be made to the extent practicable and in\naccordance with your, the Louis Dreyfus Commodities Affiliates’ and your Representatives’ applicable ongoing records retention procedures.\nNotwithstanding anything to the contrary herein, it is understood and agreed by Company that your, the Louis Dreyfus Commodities Affiliates” and\nyour or their Representatives’ computer systems may automatically back-up Confidential Information disclosed to it. To the extent that such\ncomputer back-up procedures create copies of the Confidential Information, you, the Louis Dreyfus Commodities Affiliates and your or their\nRepresentatives may retain such copies in its archival or back-up computer storage for the period such party normally archive backed-up computer\nrecords, which copies shall be subject to this provision of this Agreement and shall be destroyed in accordance with the Louis Dreyfus Commodities\nAffiliates’ and your and their Representatives’ applicable ongoing records retention procedures.\n7. Communications Regarding the Transaction. You agree that all communications concerning the Transaction and your due diligence\ninvestigation (including requests for additional Evaluation Material, meetings with management, site visits and discussions or questions regarding\nthe Transaction) shall be directed solely to the Company Representative, or such other Persons as the Company Representative may designate in\nwriting. Except in the ordinary course of business (including transactions similar to, or generally consistent with, transactions previously entered into\nbetween such parties), you, the Louis Dreyfus Commodities Affiliates and your or their Representatives shall not contact or communicate with any\nof the directors, officers, employees or Business Relations of the Company or any of the Company Affiliates about the Company, Company\nAffiliates, the Transaction or any Evaluation Material, unless approved in advance and in writing by the Company Representative.\n4\n8. Restrictive Covenants.\n(a) No Solicitation of Employees. You and the Louis Dreyfus Commodities Affiliates and your and their respective members, managers,\ndirectors, officers and employees shall not, directly or indirectly, solicit for employment or hire any executive employees of the Company for a\nperiod of one year after the date of this Agreement; provided that you and the Louis Dreyfus Commodities Affiliates and your and their respective\nmembers, managers, directors, officers and employees shall not be restricted from (i) making any general solicitation for employment that is not\nspecifically directed at any such employee and (ii) hiring any such employee who responds to any such general solicitation or who first contacts you,\nany Louis Dreyfus Commodities Affiliate or your or their members, managers, directors, officers or employees regarding employment without any\nsolicitation in violation of this Section 8(a).\n9. Standstill. You and the Louis Dreyfus Commodities Affiliates and your and their respective members, managers, directors, officers and\nemployees shall not, for a period of 15 months after the date of this Agreement, directly or indirectly:\n(a) make any statement or proposal to the board of directors of the Company, to any of our Representatives or to any of our stockholders\nwith respect to, or make any public announcement, proposal or offer (including any “solicitation” of “proxies” as such terms are defined or used in\nRegulation 14A of the Securities Exchange Act of 1934, as amended) with respect to, or otherwise solicit, seek or offer to effect (i) any business\ncombination, merger, tender offer, exchange offer or similar transaction involving the Company, (ii) any restructuring, recapitalization, liquidation or\nsimilar transaction involving the Company, (iii) any acquisition of any of our securities or assets, or rights or options to acquire interests in any of\nour securities or assets, (iv) any proposal to seek representation on the board of directors of the Company or otherwise seek to control or influence\nthe management, board of directors or policies of the Company, or (v) any request or proposal to waive, terminate or amend the provisions of this\nAgreement;\n(b) instigate, encourage or assist any third party (including forming a “group” with any such third party) to do any of the actions set forth\nin clause (a) above;\n(c) take any action which would reasonably be expected to require the Company to make a public announcement regarding any of the\nactions set forth in clause (a) above; or\n(d) acquire, own or sell (or seek permission to acquire, own or sell), of record or beneficially, by purchase, sale or otherwise, any\nsecurities, properties or indebtedness of the Company (except that you may purchase for investment in market transactions up to 1% of our\noutstanding common stock);\nin each case unless and until you have received the prior written invitation or approval of our board of directors to do any of the foregoing. The\nforegoing shall not apply to your Representatives or those of Louis Dreyfus Commodities Affiliates effecting or recommending transactions in\nsecurities in the ordinary course of their business as an investment advisor, broker, dealer in securities, market maker, specialist or block positioner.\nNotwithstanding the\nforegoing (i) nothing herein shall restrict you or the Louis Dreyfus Commodities Affiliates from entering into commercial transactions in the\nordinary course of business with the Company or Company Affiliates (including transactions similar to, or generally consistent with, transactions\npreviously entered into between such parties), and (ii) the foregoing restrictions shall cease to be of any effect in the event the Company publicly\nannounces that it has entered into an agreement or discussions with another Person to effect any transaction described in subpart (a) above.\n10. No Joint Bidding. You and the Louis Dreyfus Commodities Affiliates and your and their respective members, managers, directors, officers\nand employees shall not, without the prior written consent of the Company Representative: (a) act as a joint bidder or co-bidder with any other\nPerson with respect to the Transaction or (b) enter into any discussions, negotiations, understandings or agreements (whether written or oral) with\nany other Person regarding the Transaction, other than with your Representatives.\n11. Remedies. Each party agrees that money damages would not be a sufficient remedy for a breach or a threatened breach of this Agreement\nand that each party shall be entitled to specific performance and injunctive or other equitable relief without the posting of a bond or other security as\na remedy for any such breach or threatened breach, in addition to all other remedies available at law or in equity; provided that in no event will either\nparty, any Company Affiliate, any Louis Dreyfus Commodities Affiliate or any of their respective Representatives be liable for any lost profits,\nconsequential punitive or exemplary damages even if such Person has been advised of the possibility of such damages. Such injunctive or other\nequitable relief shall be available without the obligation to prove any damages underlying such breach or threatened breach. No failure or delay by\nany party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof\npreclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event of any legal proceeding for the\nenforcement of this Agreement, the reasonable fees and disbursements of counsel to the prevailing party shall be reimbursed by the non-prevailing\nparty to the extent of prevailing party’s success.\n12. No Waiver of Privilege. To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, the Company\nis not waiving and shall not be deemed to have waived or diminished its attorney work-product protections, attorney-client privileges or similar\nprotections and privileges as a result of disclosing any Evaluation Material (including Evaluation Material related to pending or threatened litigation)\nto you.\n13. Liability for Representatives. You shall be liable for any breaches of this Agreement by any of the Louis Dreyfus Commodities Affiliates or\nyour or their Representatives, to the extent applicable to such Persons.\n14. Term. This Agreement shall expire three years from the date of this Agreement. Any action arising out of this Agreement, including to\nenforce its provisions, must be commenced on or before the date that is five years from the date of this Agreement.\n6\n15. Miscellaneous.\n(a) Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the matters set forth\nherein.\n(b) No License. The parties acknowledge and agree that neither the Company nor any of its Representatives grants any license or other\nproperty right or interest in, by implication or otherwise, any copyright, patent, trademark, mask work, database or other intellectual or intangible\nproperty or proprietary information disclosed, embodied, fixed, comprised or contained in any Evaluation Material.\n(c) Assignment; Successors. Neither this Agreement nor any of the rights or obligations hereunder shall be assigned by any party without\nthe prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and unenforceable. Any purchaser\nof the Company or all or substantially all of the Company’s assets shall be entitled to the benefits of this Agreement whether or not this Agreement is\nassigned to such Person.\n(d) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly signed\nand delivered by or on behalf of both parties.\n(e) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or\nenforceability of any other provision of this Agreement, unless the enforcement of such other provision in such circumstances would be inequitable.\n(f) No Obligation to Complete a Transaction. This Agreement is not intended to, and does not, constitute an agreement or impose any\nobligation on either party: (i) to consummate a Transaction, (ii) to conduct or continue discussions or negotiations concerning a Transaction or (iii) to\nenter into a Definitive Transaction Agreement. Neither party shall have any rights or obligations of any kind whatsoever with respect to a\nTransaction by virtue of this Agreement or any other written or oral expression by the parties’ respective Representatives unless and until a\nDefinitive Transaction Agreement is executed and delivered. You acknowledge and agree that the Company reserves the right (A) to conduct the\nprocess for a possible Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any prospective buyer\nand entering into definitive agreements without prior notice to you or any other person), (B) to change any procedures relating to such a Transaction\nat any time without notice to you or any other person, (C) to provide or not to provide Evaluation Material to, and to request the return of Evaluation\nMaterial from, you or any of your Representatives, (D) to reject any proposals made by you or any of your Representatives, (E) to reject or accept\nany potential buyer, proposal or offer, or to terminate discussions or negotiations with you or any of your Representatives at any time for any reason\nwhatsoever, in its sole discretion, and (F) to engage in discussions and negotiations, and to enter into any agreement, with any other potential\nacquirer or business partner, in each case in the Company’s sole discretion, without notice to you, at any time and for any reason or no reason. You\nshall not have any claim or cause of action against the Company or any of its Representatives in respect of the foregoing, other than pursuant to a\nDefinitive Transaction Agreement.\n(g) Governing Law; Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas\nwithout regard to the principles of conflicts of laws in any jurisdiction. Each party consents and submits to the exclusive jurisdiction of (a) the courts\nof the State of Texas located in Harris County, Texas and the United States District Court for the Southern District of Texas or (b) the United States\nDistrict Court for the Southern District of New York and any of the New York state courts sitting in New York County for the adjudication of any\naction or legal proceeding relating to or arising out of this Agreement and the transactions contemplated hereby (and each party agrees not to\ncommence any action or legal proceeding relating thereto except in any such court). Each party hereby irrevocably and unconditionally waives any\nobjection which it may now or hereafter have to the laying of venue in such courts and agrees not to plead or claim in any such court that any such\naction or legal proceeding brought in any such court has been brought in an inconvenient forum. EACH PARTY HEREBY WAIVES ITS RIGHT\nTO JURY TRIAL OF ANY DISPUTE OR ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n(h) Counterparts. This Agreement may be signed in any number of counterparts (including by fax and PDF) with the same effect as if the\nsignatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. This\nAgreement shall become effective when, and only when, each party hereto shall have received a counterpart hereof signed by the other party hereto\n[Signature page follows]\nIf the foregoing correctly sets forth our agreement, please sign and return one copy of this Agreement to Louis T. Bolognini of the Company (the\nCompany’s General Counsel), at facsimile number 281-490-9881 or by PDF and to Mark Underberg of Paul, Weiss, Rifkind, Wharton & Garrison\nLLP (the Company’s counsel), at facsimile number 212-492-0368 or by PDF, whereupon this Agreement shall constitute our binding agreement with\nrespect to the matters set forth herein.\nVery truly yours,\nIMPERIAL SUGAR COMPANY\nBy: /s/ John C. Sheptor\nName: John C. Sheptor\nTitle: President & CEO\nAccepted and agreed to\nas of the date first written above:\nLOUIS DREYFUS COMMODITIES LLC\nBy: /s/ Scott Hogan\nName: Scott Hogan\nTitle: Vice President & Treasurer\nSignature Page to Confidentiality Agreement\nEXHIBIT A\nLouis Dreyfus Commodities Holdings B.V.\nLouis Dreyfus Commodities B.V.\nLouis Dreyfus Commodities Suisse SA\nLouis Dreyfus Commodities Services Suisse SA\nLDC Holding Inc.\nSignature Page to Confidentiality Agreement	EX-99.(D)(3) 11 d344046dex99d3.htm CONFIDENTIALITY LETTER AGREEMENT\nExhibit (d)(3)\nImperial Sugar Company\n8016 Highway 90-A\nSugar Land, TX 77487\nJuly 22, 2011\nLouis Dreyfus Commodities LLC\n40 Danbury Road\nP.O. Box 810\nWilton, CT 06897\nAttention: Scott Hogan\nVice President & Treasurer\nDear Mr. Hogan:\nYou have requested certain non-public information regarding Imperial Sugar Company (the "Company." or "us") in connection with a potential\nbusiness transaction with the Company (the "Transaction"). As a condition to furnishing such information to you, the Company is requiring you to\nagree to the following provisions set forth in this Confidentiality Agreement (this "Agreement").\n1. Certain Definitions. As used in this Agreement:\n(a) "Company. Affiliate" means, with respect to the Company, any other Person that directly or indirectly controls, is controlled by, or\nis\nunder common control with such specified Person. The term "control," when used with respect to any specified Person, means the\npower\nto\ndirect\nor\ncause the direction of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and\nthe terms "controlling" and "controlled" have correlative meanings.\n(b) "Business Relations" means the customers, suppliers, distributors, licensees, licensors, joint venture partners, clients and other\nbusiness relations of the Company and its Affiliates.\n(c) "including" means "including, without limitation."\n(d)\n"Evaluation Material" means any information or data concerning the Company or any Company Affiliates, whether in oral, visual,\nwritten, electronic or other form, that is disclosed in connection with the Transaction to you, the Louis Dreyfus Commodities Affiliates or any of\nyour\nor their Representatives, together with all notes, memoranda, summaries, analyses, compilations and other writings relating thereto that are\nprepared by you, the Louis Dreyfus Commodities Affiliates or any of your or their Representatives to the extent that it uses, contains, reflects or is\nderived from or that incorporates any such information or data. Notwithstanding the foregoing, "Evaluation Material" does not include information\nor data that you can demonstrate (i) was, prior to disclosure to you by the Company, Company Affiliates or its Representatives, already known to\nyou, the Louis Dreyfus\nCommodities Affiliates or your or their Representatives; (ii) is or was independently developed by you, the Louis Dreyfus Commodities Affiliates or\nyour or their Representatives without the benefit of the Evaluation Material; (iii) is or becomes available to the public, other than as a result of\ndisclosure by you, the Louis Dreyfus Commodities Affiliates or your or their Representatives in violation of this Agreement; (iv) is or becomes\navailable to you or the Louis Dreyfus Commodities Affiliates from a source other than the Company, Company Affiliates or any of its\nRepresentatives, so long as that source is not actually known to you or the Louis Dreyfus Commodities Affiliates to be subject to a confidentiality\nobligation to the Company; or (v) is provided by Company, Company Affiliates or its Representatives to you, the Louis Dreyfus Commodities\nAffiliates or your or their Representatives in connection with contracts or commercial transactions or relationships entered into in the ordinary course\nof business between the Company or any Company Affiliates, on one hand, and you or any of the Louis Dreyfus Commodities Affiliates on the other\nhand.\n(e) "LDC Affiliate" means Louis Dreyfus Commodities LLC and those Persons controlled by Louis Dreyfus Commodities LLC.\n(f) "LDC Parent Affiliate" means any of those Persons that is listed on Exhibit A.\n(g) "Louis Dreyfus Commodities Affiliate" means collectively the LDC Affiliates and the LDC Parent Affiliates.\n(h) "Person" means any natural person, business, corporation, company, association, limited liability company, partnership, limited\npartnership, limited liability partnership, joint venture, business enterprise, trust, governmental authority or other legal entity.\n(i) "Representatives" means the partners, members, directors, officers, employees, managers, agents and advisors (including attorneys,\naccountants, auditors, investment bankers and consultants) and the current debt lenders of a specified Person. Representatives of the Company\ninclude Perella Weinberg Partners ("PWP"), the Company's advisors.\n2. Confidentiality, Use and Disclosure of Evaluation Material.\n(a) Confidentiality and Use of Evaluation Material. You agree that all Evaluation Material shall be: (i) used by you solely for the purpose\nof evaluating the Transaction; (ii) kept strictly confidential; and (iii) provided by you only to those of your Representatives and Louis Dreyfus\nCommodities Affiliates and their Representatives to whom disclosure is needed in order to facilitate your evaluation of the Transaction. All\nEvaluation Material (and the knowledge that discussions are taking place between the Company and you and others) shall not be used by you, the\nLouis Dreyfus Commodities Affiliates or your or their Representatives for any purpose other than evaluating the Transaction. Before providing\naccess to any Evaluation Material to any of the Louis Dreyfus Commodities Affiliates or any of your or their Representatives, you shall inform them\nof the restrictions set forth in this Agreement that are applicable to them and instruct them to comply with such provisions. Nothing herein will\n2\nprohibit or restrict the right of you, the Louis Dreyfus Commodities Affiliates or any of your or their Representatives to develop, use or market\nproducts or services similar to or competitive with ours as long as you do not use Evaluation Material to do so.\n(b) Compulsory. Disclosure of Evaluation Material. In the event that you, a Louis Dreyfus Commodities Affiliate or any of your or their\nRepresentatives is requested or required (by interrogatories, requests for information, subpoena or similar legal process) to disclose any Evaluation\nMaterial, if allowed by applicable law, you shall provide the Company with prompt written notice thereof so that the Company may seek an\nappropriate protective order and/or, in its sole discretion, waive your compliance with the provisions of this Agreement. If, in the absence of such\na\nprotective order or waiver, you, a Louis Dreyfus Commodities Affiliate or any of your or their Representatives are nonetheless legally compelled to\ndisclose any Evaluation Material, then you or such Louis Dreyfus Commodities Affiliate or Representative may disclose such portion of the\nEvaluation Material that you are advised by counsel is legally required to be disclosed without liability under this Agreement, and you will\nreasonably cooperate with the Company in its efforts to obtain assurances that such disclosed Evaluation Material will be afforded confidential\ntreatment.\n3. Other Disclosure. Except for such disclosure as is necessary for you or us not to be in violation of any applicable law, regulation, order or\nlisting agreement, you, the Louis Dreyfus Commodities Affiliates and your or their Representatives, and we, Company Affiliates and our\nRepresentatives shall not: (a) make any disclosure to any other Person of (i) the fact that discussions, negotiations or investigations are taking or\nhave taken place between us concerning the Transaction, (ii) the existence or contents of this Agreement, (iii) the fact that you, the Louis Dreyfus\nCommodities Affiliates or your or their Representatives have requested or received Evaluation Material or (iv) any of the terms, conditions or facts\nrelating to a Transaction involving you, including the status thereof; or (b) make any public statement concerning a Transaction involving you (any\ndisclosure or statement described in clauses (a) or (b) being a "Public Statement"). If either party is required to make any Public Statement for such\nparty not to be in violation of any applicable law, regulation, order or listing agreement, then if allowed by applicable law, regulation, order or listing\nagreement such party shall (x) provide the other party with the text of such Public Statement as far in advance of its disclosure as is practicable and\n(y) consider in good faith such party's suggestions concerning the nature and scope of the information to be contained therein.\n4. Securities Law Restrictions. You acknowledge that: (a) the Evaluation Material may contain material non-public information concerning the\nCompany and Company Affiliates; (b) you are aware of the restrictions imposed by U.S. federal and state securities laws, and the rules and\nregulations promulgated thereunder, on Persons in possession of material non-public information; and (c) you will not (and you will cause the Louis\nDreyfus Commodities Affiliates and your and their Representatives to not), directly or indirectly, use, or allow any third party to use, any Evaluation\nMaterial in contravention of any U.S. federal or state securities laws. Nothing herein shall constitute an admission by either party that any Evaluation\nMaterial in fact contains material non-public information concerning the Company or any Company Affiliates.\n3\n5. No Representations or Warranties. You acknowledge and agree that: (a) no representation or warranty, express or implied, is made by us,\nCompany Affiliates or any of our Representatives as to the accuracy or completeness of any of the Evaluation Material; and (b) you shall be entitled\nto rely only on those representations and warranties that may be made in a definitive written agreement to consummate the Transaction that\nis\nexecuted and delivered by both you and us (a "Definitive Transaction Agreement"). Neither the Company nor any Company Affiliates or\nRepresentatives shall have any liability to you or any of your Representatives on account of the use of any Evaluation Material by you, the Louis\nDreyfus Commodities Affiliates or any of your or their Representatives or any inaccuracy therein or omission therefrom unless otherwise provided\nin a Definitive Transaction Agreement.\n6. Return, Destruction or Erasure of Evaluation Material. If you decide not to proceed with the Transaction, then you shall promptly notify\nDawn Scheirer of PWP (the "Company Representative") of that decision. Within thirty (30) days after the Company's written request, you shall\neither return, destroy or erase all Evaluation Material in the possession or control of you, any Louis Dreyfus Commodities Affiliate or any of your or\ntheir Representatives (and, in the case of destruction or erasure, certify such destruction or erasure to us) except to the extent and for such period\nthat you, the Louis Dreyfus Commodities Affiliates or your or their Representatives are prohibited from doing so by applicable law, rule, regulation\nor court or administrative order. The parties recognize that it may not be possible to destroy separately or completely materials that have been stored\nor transmitted electronically within the above 30-day time period and that destruction of such material shall be made to the extent practicable and\nin\naccordance with your, the Louis Dreyfus Commodities Affiliates' and your Representatives' applicable ongoing records retention procedures.\nNotwithstanding anything to the contrary herein, it is understood and agreed by Company that your, the Louis Dreyfus Commodities Affiliates' and\nyour or their Representatives' computer systems may automatically back-up Confidential Information disclosed to it. To the extent that such\ncomputer back-up procedures create copies of the Confidential Information, you, the Louis Dreyfus Commodities Affiliates and your or their\nRepresentatives may retain such copies in its archival or back-up computer storage for the period such party normally archive backed-up computer\nrecords, which copies shall be subject to this provision of this Agreement and shall be destroyed in accordance with the Louis Dreyfus Commodities\nAffiliates' and your and their Representatives' applicable ongoing records retention procedures.\n7. Communications Regarding the Transaction. You agree that all communications concerning the Transaction and your due diligence\ninvestigation (including requests for additional Evaluation Material, meetings with management, site visits and discussions or questions regarding\nthe\nTransaction) shall be directed solely to the Company Representative, or such other Persons as the Company Representative may designate in\nwriting. Except in the ordinary course of business (including transactions similar to, or generally consistent with, transactions previously entered into\nbetween such parties), you, the Louis Dreyfus Commodities Affiliates and your or their Representatives shall not contact or communicate with any\nof the directors, officers, employees or Business Relations of the Company or any of the Company Affiliates about the Company, Company\nAffiliates, the Transaction or any Evaluation Material, unless approved in advance and in writing by the Company Representative.\n4\n8. Restrictive Covenants.\n(a) No Solicitation of Employees. You and the Louis Dreyfus Commodities Affiliates and your and their respective members, managers,\ndirectors, officers and employees shall not, directly or indirectly, solicit for employment or hire any executive employees of the Company for a\nperiod of one year after the date of this Agreement; provided that you and the Louis Dreyfus Commodities Affiliates and your and their respective\nmembers, managers, directors, officers and employees shall not be restricted from (i) making any general solicitation for employment that is not\nspecifically directed at any such employee and (ii) hiring any such employee who responds to any such general solicitation or who first contacts you,\nany Louis Dreyfus Commodities Affiliate or your or their members, managers, directors, officers or employees regarding employment without any\nsolicitation in violation of this Section 8(a).\n9.\nStandstill. You and the Louis Dreyfus Commodities Affiliates and your and their respective members, managers, directors, officers and\nemployees shall not, for a period of 15 months after the date of this Agreement, directly or indirectly:\n(a) make any statement or proposal to the board of directors of the Company, to any of our Representatives or to any of our stockholders\nwith respect to, or make any public announcement, proposal or offer (including any "solicitation" of "proxies" as such terms are defined or used in\nRegulation 14A of the Securities Exchange Act of 1934, as amended) with respect to, or otherwise solicit, seek or offer to effect (i) any business\ncombination, merger, tender offer, exchange offer or similar transaction involving the Company, (ii) any restructuring, recapitalization, liquidation\nor\nsimilar transaction involving the Company, (iii) any acquisition of any of our securities or assets, or rights or options to acquire interests in any of\nour securities or assets, (iv) any proposal to seek representation on the board of directors of the Company or otherwise seek to control or influence\nthe management, board of directors or policies of the Company, or (v) any request or proposal to waive, terminate or amend the provisions of this\nAgreement;\n(b) instigate, encourage or assist any third party (including forming a "group" with any such third party) to do any of the actions set forth\nin clause (a) above;\n(c) take any action which would reasonably be expected to require the Company to make a public announcement regarding any of the\nactions set forth in clause (a) above; or\n(d) acquire, own or sell (or seek permission to acquire, own or sell), of record or beneficially, by purchase, sale or otherwise, any\nsecurities, properties or indebtedness of the Company (except that you may purchase for investment in market transactions up to 1% of our\noutstanding common stock);\nin each case unless and until you have received the prior written invitation or approval of our board of directors to do any of the foregoing. The\nforegoing shall not apply to your Representatives or those of Louis Dreyfus Commodities Affiliates effecting or recommending transactions in\nsecurities in the ordinary course of their business as an investment advisor, broker, dealer in securities, market maker, specialist or block positioner.\nNotwithstanding the\n5\nforegoing (i) nothing herein shall restrict you or the Louis Dreyfus Commodities Affiliates from entering into commercial transactions in the\nordinary course of business with the Company or Company Affiliates (including transactions similar to, or generally consistent with, transactions\npreviously entered into between such parties), and (ii) the foregoing restrictions shall cease to be of any effect in the event the Company publicly\nannounces that it has entered into an agreement or discussions with another Person to effect any transaction described in subpart (a) above.\n10.\nNo\nJoint\nBidding. You and the Louis Dreyfus Commodities Affiliates and your and their respective members, managers, directors, officers\nand employees shall not, without the prior written consent of the Company Representative: (a) act as a joint bidder or co-bidder with any other\nPerson with respect to the Transaction or (b) enter into any discussions, negotiations, understandings or agreements (whether written or oral) with\nany other Person regarding the Transaction, other than with your Representatives.\n11. Remedies. Each party agrees that money damages would not be a sufficient remedy for a breach or a threatened breach of this Agreement\nand\nthat\neach\nparty\nshall\nbe\nentitled\nto\nspecific\nperformance\nand\ninjunctive\nor\nother\nequitable\nrelief\nwithout\nthe\nposting\nof\na\nbond\nor\nother\nsecurity\nas\na remedy for any such breach or threatened breach, in addition to all other remedies available at law or in equity; provided that in no event will either\nparty, any Company Affiliate, any Louis Dreyfus Commodities Affiliate or any of their respective Representatives be liable for any lost profits,\nconsequential punitive or exemplary damages even if such Person has been advised of the possibility of such damages. Such injunctive or other\nequitable relief shall be available without the obligation to prove any damages underlying such breach or threatened breach. No failure or delay by\nany party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof\npreclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event of any legal proceeding for the\nenforcement of this Agreement, the reasonable fees and disbursements of counsel to the prevailing party shall be reimbursed by the non-prevailing\nparty to the extent of prevailing party's success.\n12. No Waiver of Privilege. To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, the Company\nis not waiving and shall not be deemed to have waived or diminished its attorney work-product protections, attorney-client privileges or similar\nprotections and privileges as a result of disclosing any Evaluation Material (including Evaluation Material related to pending or threatened litigation)\nto you.\n13. Liability. for Representatives. You shall be liable for any breaches of this Agreement by any of the Louis Dreyfus Commodities Affiliates or\nyour or their Representatives, to the extent applicable to such Persons.\n14. Term. This Agreement shall expire three years from the date of this Agreement. Any action arising out of this Agreement, including to\nenforce its provisions, must be commenced on or before the date that is five years from the date of this Agreement.\n6\n15. Miscellaneous.\n(a) Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the matters set forth\nherein.\n(b) No License. The parties acknowledge and agree that neither the Company nor any of its Representatives grants any license or other\nproperty right or interest in, by implication or otherwise, any copyright, patent, trademark, mask work, database or other intellectual or intangible\nproperty or proprietary information disclosed, embodied, fixed, comprised or contained in any Evaluation Material.\n(c)\nAssignment; Successors. Neither this Agreement nor any of the rights or obligations hereunder shall be assigned by any party without\nthe prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and unenforceable. Any purchaser\nof the Company or all or substantially all of the Company's assets shall be entitled to the benefits of this Agreement whether or not this Agreement\nis\nassigned to such Person.\n(d) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly signed\nand delivered by or on behalf of both parties.\n(e) Severability.. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or\nenforceability of any other provision of this Agreement, unless the enforcement of such other provision in such circumstances would be inequitable.\n(f) No Obligation to Complete a Transaction. This Agreement is not intended to, and does not, constitute an agreement or impose any\nobligation on either party: (i) to consummate a Transaction, (ii) to conduct or continue discussions or negotiations concerning a Transaction or (iii) to\nenter into a Definitive Transaction Agreement. Neither party shall have any rights or obligations of any kind whatsoever with respect to a\nTransaction by virtue of this Agreement or any other written or oral expression by the parties' respective Representatives unless and until a\nDefinitive Transaction Agreement is executed and delivered. You acknowledge and agree that the Company reserves the right (A) to conduct the\nprocess for a possible Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any prospective buyer\nand entering into definitive agreements without prior notice to you or any other person), (B) to change any procedures relating to such a Transaction\nat\nany time without notice to you or any other person, (C) to provide or not to provide Evaluation Material to, and to request the return of Evaluation\nMaterial from, you or any of your Representatives, (D) to reject any proposals made by you or any of your Representatives, (E) to reject or accept\nany potential buyer, proposal or offer, or to terminate discussions or negotiations with you or any of your Representatives at any time for any reason\nwhatsoever, in its sole discretion, and (F) to engage in discussions and negotiations, and to enter into any agreement, with any other potential\nacquirer or business partner, in each case in the Company's sole discretion, without notice to you, at any time and for any reason or no reason. You\nshall not have any claim or cause of action against the Company or any of its Representatives in respect of the foregoing, other than pursuant to\na\nDefinitive Transaction Agreement.\n7\n(g) Governing Law; Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas\nwithout regard to the principles of conflicts of laws in any jurisdiction. Each party consents and submits to the exclusive jurisdiction of (a) the courts\nof the State of Texas located in Harris County, Texas and the United States District Court for the Southern District of Texas or (b) the United States\nDistrict Court for the Southern District of New York and any of the New York state courts sitting in New York County for the adjudication of any\naction or legal proceeding relating to or arising out of this Agreement and the transactions contemplated hereby (and each party agrees not to\ncommence any action or legal proceeding relating thereto except in any such court). Each party hereby irrevocably and unconditionally waives any\nobjection which it may now or hereafter have to the laying of venue in such courts and agrees not to plead or claim in any such court that any such\naction or legal proceeding brought in any such court has been brought in an inconvenient forum. EACH PARTY HEREBY WAIVES ITS RIGHT\nTO JURY TRIAL OF ANY DISPUTE OR ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n(h) Counterparts. This Agreement may be signed in any number of counterparts (including by fax and PDF) with the same effect as if the\nsignatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. This\nAgreement shall become effective when, and only when, each party hereto shall have received a counterpart hereof signed by the other party hereto\n[Signature page follows]\n8\nIf\nthe foregoing correctly sets forth our agreement, please sign and return one copy of this Agreement to Louis T. Bolognini of the Company (the\nCompany's General Counsel), at facsimile number 281-490-9881 or by PDF and to Mark Underberg of Paul, Weiss, Rifkind, Wharton & Garrison\nLLP (the Company's counsel), at facsimile number 212-492-0368 or by PDF, whereupon this Agreement shall constitute our binding agreement with\nrespect to the matters set forth herein.\nVery truly yours,\nIMPERIAL SUGAR COMPANY\nBy: /s/ John C. Sheptor\nName: John C. Sheptor\nTitle: President & CEO\nAccepted and agreed to\nas of the date first written above:\nLOUIS DREYFUS COMMODITIES LLC\nBy: /s/ Scott Hogan\nName: Scott Hogan\nTitle: Vice President & Treasurer\nSignature Page to Confidentiality Agreement\nEXHIBIT A\nLouis Dreyfus Commodities Holdings B.V.\nLouis Dreyfus Commodities B.V.\nLouis Dreyfus Commodities Suisse SA\nLouis Dreyfus Commodities Services Suisse SA\nLDC Holding Inc\nSignature Page to Confidentiality Agreement	EX-99.(D)(3) 11 d344046dex99d3.htm CONFIDENTIALITY LETTER AGREEMENT\nExhibit (d)(3)\nImperial Sugar Company\n8016 Highway 90-A\nSugar Land, TX 77487\nJuly 22, 2011\nLouis Dreyfus Commodities LLC\n40 Danbury Road\nP.O. Box 810\nWilton, CT 06897\nAttention: Scott Hogan\nVice President & Treasurer\nDear Mr. Hogan:\nYou have requested certain non-public information regarding Imperial Sugar Company (the “Company” or “us”) in connection with a potential\nbusiness transaction with the Company (the “Transaction”). As a condition to furnishing such information to you, the Company is requiring you to\nagree to the following provisions set forth in this Confidentiality Agreement (this “Agreement”).\n1. Certain Definitions. As used in this Agreement:\n(a) “Company Affiliate” means, with respect to the Company, any other Person that directly or indirectly controls, is controlled by, or is\nunder common control with such specified Person. The term “control,” when used with respect to any specified Person, means the power to direct or\ncause the direction of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and\nthe terms “controlling” and “controlled” have correlative meanings.\n(b) “Business Relations” means the customers, suppliers, distributors, licensees, licensors, joint venture partners, clients and other\nbusiness relations of the Company and its Affiliates.\n(c) “including” means “including, without limitation.”\n(d) “Evaluation Material” means any information or data concerning the Company or any Company Affiliates, whether in oral, visual,\nwritten, electronic or other form, that is disclosed in connection with the Transaction to you, the Louis Dreyfus Commodities Affiliates or any of\nyour or their Representatives, together with all notes, memoranda, summaries, analyses, compilations and other writings relating thereto that are\nprepared by you, the Louis Dreyfus Commodities Affiliates or any of your or their Representatives to the extent that it uses, contains, reflects or is\nderived from or that incorporates any such information or data. Notwithstanding the foregoing, “Evaluation Material” does not include information\nor data that you can demonstrate (i) was, prior to disclosure to you by the Company, Company Affiliates or its Representatives, already known to\nyou, the Louis Dreyfus\nCommodities Affiliates or your or their Representatives; (ii) is or was independently developed by you, the Louis Dreyfus Commodities Affiliates or\nyour or their Representatives without the benefit of the Evaluation Material; (iii) is or becomes available to the public, other than as a result of\ndisclosure by you, the Louis Dreyfus Commodities Affiliates or your or their Representatives in violation of this Agreement; (iv) is or becomes\navailable to you or the Louis Dreyfus Commodities Affiliates from a source other than the Company, Company Affiliates or any of its\nRepresentatives, so long as that source is not actually known to you or the Louis Dreyfus Commodities Affiliates to be subject to a confidentiality\nobligation to the Company; or (v) is provided by Company, Company Affiliates or its Representatives to you, the Louis Dreyfus Commodities\nAffiliates or your or their Representatives in connection with contracts or commercial transactions or relationships entered into in the ordinary course\nof business between the Company or any Company Affiliates, on one hand, and you or any of the Louis Dreyfus Commodities Affiliates on the other\nhand.\n(e) “LDC Affiliate” means Louis Dreyfus Commodities LLC and those Persons controlled by Louis Dreyfus Commodities LLC.\n(f) “LDC Parent Affiliate” means any of those Persons that is listed on Exhibit A.\n(g) “Louis Dreyfus Commodities Affiliate” means collectively the LDC Affiliates and the LDC Parent Affiliates.\n(h) “Person” means any natural person, business, corporation, company, association, limited liability company, partnership, limited\npartnership, limited liability partnership, joint venture, business enterprise, trust, governmental authority or other legal entity.\n(i) “Representatives” means the partners, members, directors, officers, employees, managers, agents and advisors (including attorneys,\naccountants, auditors, investment bankers and consultants) and the current debt lenders of a specified Person. Representatives of the Company\ninclude Perella Weinberg Partners (“PWP”), the Company’s advisors.\n2. Confidentiality, Use and Disclosure of Evaluation Material.\n(a) Confidentiality and Use of Evaluation Material. You agree that all Evaluation Material shall be: (i) used by you solely for the purpose\nof evaluating the Transaction; (ii) kept strictly confidential; and (iii) provided by you only to those of your Representatives and Louis Dreyfus\nCommodities Affiliates and their Representatives to whom disclosure is needed in order to facilitate your evaluation of the Transaction. All\nEvaluation Material (and the knowledge that discussions are taking place between the Company and you and others) shall not be used by you, the\nLouis Dreyfus Commodities Affiliates or your or their Representatives for any purpose other than evaluating the Transaction. Before providing\naccess to any Evaluation Material to any of the Louis Dreyfus Commodities Affiliates or any of your or their Representatives, you shall inform them\nof the restrictions set forth in this Agreement that are applicable to them and instruct them to comply with such provisions. Nothing herein will\n2\nprohibit or restrict the right of you, the Louis Dreyfus Commodities Affiliates or any of your or their Representatives to develop, use or market\nproducts or services similar to or competitive with ours as long as you do not use Evaluation Material to do so.\n(b) Compulsory Disclosure of Evaluation Material. In the event that you, a Louis Dreyfus Commodities Affiliate or any of your or their\nRepresentatives is requested or required (by interrogatories, requests for information, subpoena or similar legal process) to disclose any Evaluation\nMaterial, if allowed by applicable law, you shall provide the Company with prompt written notice thereof so that the Company may seek an\nappropriate protective order and/or, in its sole discretion, waive your compliance with the provisions of this Agreement. If, in the absence of such a\nprotective order or waiver, you, a Louis Dreyfus Commodities Affiliate or any of your or their Representatives are nonetheless legally compelled to\ndisclose any Evaluation Material, then you or such Louis Dreyfus Commodities Affiliate or Representative may disclose such portion of the\nEvaluation Material that you are advised by counsel is legally required to be disclosed without liability under this Agreement, and you will\nreasonably cooperate with the Company in its efforts to obtain assurances that such disclosed Evaluation Material will be afforded confidential\ntreatment.\n3. Other Disclosure. Except for such disclosure as is necessary for you or us not to be in violation of any applicable law, regulation, order or\nlisting agreement, you, the Louis Dreyfus Commodities Affiliates and your or their Representatives, and we, Company Affiliates and our\nRepresentatives shall not: (a) make any disclosure to any other Person of (i) the fact that discussions, negotiations or investigations are taking or\nhave taken place between us concerning the Transaction, (ii) the existence or contents of this Agreement, (iii) the fact that you, the Louis Dreyfus\nCommodities Affiliates or your or their Representatives have requested or received Evaluation Material or (iv) any of the terms, conditions or facts\nrelating to a Transaction involving you, including the status thereof; or (b) make any public statement concerning a Transaction involving you (any\ndisclosure or statement described in clauses (a) or (b) being a “Public Statement”). If either party is required to make any Public Statement for such\nparty not to be in violation of any applicable law, regulation, order or listing agreement, then if allowed by applicable law, regulation, order or listing\nagreement such party shall (x) provide the other party with the text of such Public Statement as far in advance of its disclosure as is practicable and\n(y) consider in good faith such party’s suggestions concerning the nature and scope of the information to be contained therein.\n4. Securities Law Restrictions. You acknowledge that: (a) the Evaluation Material may contain material non-public information concerning the\nCompany and Company Affiliates; (b) you are aware of the restrictions imposed by U.S . federal and state securities laws, and the rules and\nregulations promulgated thereunder, on Persons in possession of material non-public information; and (c) you will not (and you will cause the Louis\nDreyfus Commodities Affiliates and your and their Representatives to not), directly or indirectly, use, or allow any third party to use, any Evaluation\nMaterial in contravention of any U.S . federal or state securities laws. Nothing herein shall constitute an admission by either party that any Evaluation\nMaterial in fact contains material non-public information concerning the Company or any Company Affiliates.\n3\n5. No Representations or Warranties. You acknowledge and agree that: (a) no representation or warranty, express or implied, is made by us,\nCompany Affiliates or any of our Representatives as to the accuracy or completeness of any of the Evaluation Material; and (b) you shall be entitled\nto rely only on those representations and warranties that may be made in a definitive written agreement to consummate the Transaction that is\nexecuted and delivered by both you and us (a “Definitive Transaction Agreement”). Neither the Company nor any Company Affiliates or\nRepresentatives shall have any liability to you or any of your Representatives on account of the use of any Evaluation Material by you, the Louis\nDreyfus Commodities Affiliates or any of your or their Representatives or any inaccuracy therein or omission therefrom unless otherwise provided\nin a Definitive Transaction Agreement.\n6. Return, Destruction or Erasure of Evaluation Material. If you decide not to proceed with the Transaction, then you shall promptly notify\nDawn Scheirer of PWP (the “Company Representative”) of that decision. Within thirty (30) days after the Company’s written request, you shall\neither return, destroy or erase all Evaluation Material in the possession or control of you, any Louis Dreyfus Commodities Affiliate or any of your or\ntheir Representatives (and, in the case of destruction or erasure, certify such destruction or erasure to us) , except to the extent and for such period\nthat you, the Louis Dreyfus Commodities Affiliates or your or their Representatives are prohibited from doing so by applicable law, rule, regulation\nor court or administrative order. The parties recognize that it may not be possible to destroy separately or completely materials that have been stored\nor transmitted electronically within the above 30-day time period and that destruction of such material shall be made to the extent practicable and in\naccordance with your, the Louis Dreyfus Commodities Affiliates’ and your Representatives’ applicable ongoing records retention procedures.\nNotwithstanding anything to the contrary herein, it is understood and agreed by Company that your, the Louis Dreyfus Commodities Affiliates’ and\nyour or their Representatives’ computer systems may automatically back-up Confidential Information disclosed to it. To the extent that such\ncomputer back-up procedures create copies of the Confidential Information, you, the Louis Dreyfus Commodities Affiliates and your or their\nRepresentatives may retain such copies in its archival or back-up computer storage for the period such party normally archive backed-up computer\nrecords, which copies shall be subject to this provision of this Agreement and shall be destroyed in accordance with the Louis Dreyfus Commodities\nAffiliates’ and your and their Representatives’ applicable ongoing records retention procedures.\n7. Communications Regarding the Transaction. You agree that all communications concerning the Transaction and your due diligence\ninvestigation (including requests for additional Evaluation Material, meetings with management, site visits and discussions or questions regarding\nthe Transaction) shall be directed solely to the Company Representative, or such other Persons as the Company Representative may designate in\nwriting. Except in the ordinary course of business (including transactions similar to, or generally consistent with, transactions previously entered into\nbetween such parties), you, the Louis Dreyfus Commodities Affiliates and your or their Representatives shall not contact or communicate with any\nof the directors, officers, employees or Business Relations of the Company or any of the Company Affiliates about the Company, Company\nAffiliates, the Transaction or any Evaluation Material, unless approved in advance and in writing by the Company Representative.\n4\n8. Restrictive Covenants.\n(a) No Solicitation of Employees. You and the Louis Dreyfus Commodities Affiliates and your and their respective members, managers,\ndirectors, officers and employees shall not, directly or indirectly, solicit for employment or hire any executive employees of the Company for a\nperiod of one year after the date of this Agreement; provided that you and the Louis Dreyfus Commodities Affiliates and your and their respective\nmembers, managers, directors, officers and employees shall not be restricted from (i) making any general solicitation for employment that is not\nspecifically directed at any such employee and (ii) hiring any such employee who responds to any such general solicitation or who first contacts you,\nany Louis Dreyfus Commodities Affiliate or your or their members, managers, directors, officers or employees regarding employment without any\nsolicitation in violation of this Section 8(a).\n9. Standstill. You and the Louis Dreyfus Commodities Affiliates and your and their respective members, managers, directors, officers and\nemployees shall not, for a period of 15 months after the date of this Agreement, directly or indirectly:\n(a) make any statement or proposal to the board of directors of the Company, to any of our Representatives or to any of our stockholders\nwith respect to, or make any public announcement, proposal or offer (including any “solicitation” of “proxies” as such terms are defined or used in\nRegulation 14A of the Securities Exchange Act of 1934, as amended) with respect to, or otherwise solicit, seek or offer to effect (i) any business\ncombination, merger, tender offer, exchange offer or similar transaction involving the Company, (ii) any restructuring, recapitalization, liquidation or\nsimilar transaction involving the Company, (iii) any acquisition of any of our securities or assets, or rights or options to acquire interests in any of\nour securities or assets, (iv) any proposal to seek representation on the board of directors of the Company or otherwise seek to control or influence\nthe management, board of directors or policies of the Company, or (v) any request or proposal to waive, terminate or amend the provisions of this\nAgreement;\n(b) instigate, encourage or assist any third party (including forming a “group” with any such third party) to do any of the actions set forth\nin clause (a) above;\n(c) take any action which would reasonably be expected to require the Company to make a public announcement regarding any of the\nactions set forth in clause (a) above; or\n(d) acquire, own or sell (or seek permission to acquire, own or sell), of record or beneficially, by purchase, sale or otherwise, any\nsecurities, properties or indebtedness of the Company (except that you may purchase for investment in market transactions up to 1% of our\noutstanding common stock);\nin each case unless and until you have received the prior written invitation or approval of our board of directors to do any of the foregoing. The\nforegoing shall not apply to your Representatives or those of Louis Dreyfus Commodities Affiliates effecting or recommending transactions in\nsecurities in the ordinary course of their business as an investment advisor, broker, dealer in securities, market maker, specialist or block positioner.\nNotwithstanding the\n5\nforegoing (i) nothing herein shall restrict you or the Louis Dreyfus Commodities Affiliates from entering into commercial transactions in the\nordinary course of business with the Company or Company Affiliates (including transactions similar to, or generally consistent with, transactions\npreviously entered into between such parties), and (ii) the foregoing restrictions shall cease to be of any effect in the event the Company publicly\nannounces that it has entered into an agreement or discussions with another Person to effect any transaction described in subpart (a) above.\n10. No Joint Bidding. You and the Louis Dreyfus Commodities Affiliates and your and their respective members, managers, directors, officers\nand employees shall not, without the prior written consent of the Company Representative: (a) act as a joint bidder or co-bidder with any other\nPerson with respect to the Transaction or (b) enter into any discussions, negotiations, understandings or agreements (whether written or oral) with\nany other Person regarding the Transaction, other than with your Representatives.\n11. Remedies. Each party agrees that money damages would not be a sufficient remedy for a breach or a threatened breach of this Agreement\nand that each party shall be entitled to specific performance and injunctive or other equitable relief without the posting of a bond or other security as\na remedy for any such breach or threatened breach, in addition to all other remedies available at law or in equity; provided that in no event will either\nparty, any Company Affiliate, any Louis Dreyfus Commodities Affiliate or any of their respective Representatives be liable for any lost profits,\nconsequential punitive or exemplary damages even if such Person has been advised of the possibility of such damages. Such injunctive or other\nequitable relief shall be available without the obligation to prove any damages underlying such breach or threatened breach. No failure or delay by\nany party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof\npreclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event of any legal proceeding for the\nenforcement of this Agreement, the reasonable fees and disbursements of counsel to the prevailing party shall be reimbursed by the non-prevailing\nparty to the extent of prevailing party’s success.\n12. No Waiver of Privilege. To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, the Company\nis not waiving and shall not be deemed to have waived or diminished its attorney work-product protections, attorney-client privileges or similar\nprotections and privileges as a result of disclosing any Evaluation Material (including Evaluation Material related to pending or threatened litigation)\nto you.\n13. Liability for Representatives. You shall be liable for any breaches of this Agreement by any of the Louis Dreyfus Commodities Affiliates or\nyour or their Representatives, to the extent applicable to such Persons.\n14. Term. This Agreement shall expire three years from the date of this Agreement. Any action arising out of this Agreement, including to\nenforce its provisions, must be commenced on or before the date that is five years from the date of this Agreement.\n6\n15. Miscellaneous.\n(a) Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the matters set forth\nherein.\n(b) No License. The parties acknowledge and agree that neither the Company nor any of its Representatives grants any license or other\nproperty right or interest in, by implication or otherwise, any copyright, patent, trademark, mask work, database or other intellectual or intangible\nproperty or proprietary information disclosed, embodied, fixed, comprised or contained in any Evaluation Material.\n(c) Assignment; Successors. Neither this Agreement nor any of the rights or obligations hereunder shall be assigned by any party without\nthe prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and unenforceable. Any purchaser\nof the Company or all or substantially all of the Company’s assets shall be entitled to the benefits of this Agreement whether or not this Agreement is\nassigned to such Person.\n(d) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly signed\nand delivered by or on behalf of both parties.\n(e) Severability. The invalidity or unenforceability of any provision of this Agreement shall not impair or affect the validity or\nenforceability of any other provision of this Agreement, unless the enforcement of such other provision in such circumstances would be inequitable.\n(f) No Obligation to Complete a Transaction. This Agreement is not intended to, and does not, constitute an agreement or impose any\nobligation on either party: (i) to consummate a Transaction, (ii) to conduct or continue discussions or negotiations concerning a Transaction or (iii) to\nenter into a Definitive Transaction Agreement. Neither party shall have any rights or obligations of any kind whatsoever with respect to a\nTransaction by virtue of this Agreement or any other written or oral expression by the parties’ respective Representatives unless and until a\nDefinitive Transaction Agreement is executed and delivered. You acknowledge and agree that the Company reserves the right (A) to conduct the\nprocess for a possible Transaction as it in its sole discretion shall determine (including, without limitation, negotiating with any prospective buyer\nand entering into definitive agreements without prior notice to you or any other person), (B) to change any procedures relating to such a Transaction\nat any time without notice to you or any other person, (C) to provide or not to provide Evaluation Material to, and to request the return of Evaluation\nMaterial from, you or any of your Representatives, (D) to reject any proposals made by you or any of your Representatives, (E) to reject or accept\nany potential buyer, proposal or offer, or to terminate discussions or negotiations with you or any of your Representatives at any time for any reason\nwhatsoever, in its sole discretion, and (F) to engage in discussions and negotiations, and to enter into any agreement, with any other potential\nacquirer or business partner, in each case in the Company’s sole discretion, without notice to you, at any time and for any reason or no reason. You\nshall not have any claim or cause of action against the Company or any of its Representatives in respect of the foregoing, other than pursuant to a\nDefinitive Transaction Agreement.\n7\n(g) Governing Law; Forum. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas\nwithout regard to the principles of conflicts of laws in any jurisdiction. Each party consents and submits to the exclusive jurisdiction of (a) the courts\nof the State of Texas located in Harris County, Texas and the United States District Court for the Southern District of Texas or (b) the United States\nDistrict Court for the Southern District of New York and any of the New York state courts sitting in New York County for the adjudication of any\naction or legal proceeding relating to or arising out of this Agreement and the transactions contemplated hereby (and each party agrees not to\ncommence any action or legal proceeding relating thereto except in any such court). Each party hereby irrevocably and unconditionally waives any\nobjection which it may now or hereafter have to the laying of venue in such courts and agrees not to plead or claim in any such court that any such\naction or legal proceeding brought in any such court has been brought in an inconvenient forum. EACH PARTY HEREBY WAIVES ITS RIGHT\nTO JURY TRIAL OF ANY DISPUTE OR ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n(h) Counterparts. This Agreement may be signed in any number of counterparts (including by fax and PDF) with the same effect as if the\nsignatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. This\nAgreement shall become effective when, and only when, each party hereto shall have received a counterpart hereof signed by the other party hereto\n[Signature page follows]\n8\nIf the foregoing correctly sets forth our agreement, please sign and return one copy of this Agreement to Louis T. Bolognini of the Company (the\nCompany’s General Counsel), at facsimile number 281-490-9881 or by PDF and to Mark Underberg of Paul, Weiss, Rifkind, Wharton & Garrison\nLLP (the Company’s counsel), at facsimile number 212-492-0368 or by PDF, whereupon this Agreement shall constitute our binding agreement with\nrespect to the matters set forth herein.\nVery truly yours,\nIMPERIAL SUGAR COMPANY\nBy: /s/ John C. Sheptor\nName: John C. Sheptor\nTitle: President & CEO\nAccepted and agreed to\nas of the date first written above:\nLOUIS DREYFUS COMMODITIES LLC\nBy: /s/ Scott Hogan\nName: Scott Hogan\nTitle: Vice President & Treasurer\nSignature Page to Confidentiality Agreement\nEXHIBIT A\nLouis Dreyfus Commodities Holdings B.V.\nLouis Dreyfus Commodities B.V.\nLouis Dreyfus Commodities Suisse SA\nLouis Dreyfus Commodities Services Suisse SA\nLDC Holding Inc.\nSignature Page to Confidentiality Agreement
+9eddc78f6cff5ce348e07fba2a374892.pdf	effective_date jurisdiction party term	EX-10.28 4 dex1028.htm MUTUAL CONFIDENTIALITY AGREEMENT\nExhibit 10.28\nMUTUAL CONFIDENTIALITY AGREEMENT\nAgreement between VITAMIN SHOPPE INDUSTURIES INC., a New York corporation having offices at 2101 91st\nStreet, North\nBergen, New Jersey 07047 (“VSI”), and RENAISSANCE BRANDS LTD. having offices at 223 Wall Street, Box 318, Huntington, NY 11743 (the\n“Company”), effective as of November , 2005.\nWHEREAS, for the purpose as stated in Section 2 below, VSI and the Company (collectively referred to as the “Parties” and\nindividually referred to as a “Party”) have determined to establish terms governing the use and protection of Confidential Information (as defined in\nSection 1 below) that one Party (“Owner”) may disclose to the other Party (“Recipient”).\nNOW, THEREFORE, intending to be legally bound hereby, the Parties agree as follows:\n1. “Confidential Information” means information that relates to the purpose stated in Section 2 below or that, although not related to\nsuch purpose, is nevertheless disclosed as a result of the Parties’ discussions in that regard, and that should reasonably have been understood by the\nRecipient, because of legends or other markings, the circumstances of disclosure or the nature of the information itself, to be proprietary and\nconfidential to the Owner, an Affiliate of the Owner or to a third party. Confidential Information may be disclosed in written or other tangible form\n(including on magnetic media) or by oral, visual or other means. The term “Affiliate” means any person or entity directly or indirectly controlling,\ncontrolled by, or under common control with a Party.\n2. A Recipient of Confidential Information may use the Confidential Information only for the purpose of [a possible business\nrelationship or transaction]\nand only during the period of time stated in the first sentence of Section 10.\n3. Recipient shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own\nconfidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care. Recipient may disclose\nConfidential Information received hereunder to (i) its Affiliates who agree, in advance, in writing, to be bound by this Agreement, and (ii) to its\nemployees and independent contractors, and its Affiliates’ employees and independent contractors, who have a need to know, for the purpose of this\nAgreement, and who are bound to protect the received Confidential Information from unauthorized use and disclosure under the terms of a written\nagreement. Confidential Information shall not otherwise be disclosed to any third party without the prior written consent of the Owner.\n4. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that:\n(a) Was publicly known at the time of Owner’s communication thereof to Recipient;\n(b) Becomes publicly known through no fault of Recipient subsequent to the time of Owner’s communication thereof to Recipient;\n(c) Was in Recipient’s possession free of any obligation of confidence at the time of Owner’s communication thereof to Recipient;\n(d) Is developed by Recipient independently of and without reference to any of Owner’s Confidential Information or other information that\nOwner disclosed in confidence to any third party;\n(e) Is rightfully obtained by Recipient from third parties authorized to make such disclosure without restriction; or\n(f) Is identified in writing by Owner as no longer proprietary or confidential.\n5. In the event Recipient is required by law, regulation or court order to disclose any of Owner’s Confidential Information, Recipient will\npromptly notify Owner in writing prior to making any such disclosure in order to facilitate Owner seeking a protective order or other appropriate\nremedy from the proper authority. Recipient agrees to cooperate with Owner in seeking such order or other remedy. Recipient further agrees that if\nOwner is not successful in precluding the requesting legal body from requiring the disclosure of the Confidential Information, it will furnish only\nthat portion of the Confidential Information, which is legally required and will exercise all reasonable efforts to obtain reliable assurances that\nconfidential treatment will be accorded the Confidential Information.\n6. All Confidential Information disclosed under this Agreement (including information in computer software or held in electronic storage\nmedia) shall be and remain the property of Owner. All such information in tangible form shall be returned to Owner promptly upon written request\nor the termination or expiration of this Agreement, and shall not thereafter be retained in any form by Recipient, its Affiliates, or any employees or\nindependent contractors of Recipient or its Affiliates.\n7. If a Party generates an internal work product containing the other’s Confidential Information, all tangible forms of that work product\nshall be handled in the same manner, and shall be fully governed by, the terms of this Agreement, as the original version of such Confidential\nInformation. The term “internal work product” includes any hard copy, printout, electronic transfer or other transfer of all or portions of Confidential\nInformation into any medium or discernable form.\n-1-\n8. No licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied by this Agreement.\nNeither Party is obligated under this Agreement to purchase from or provide to the other Party any service or product.\n9. Owner shall not have any liability or responsibility for errors or omissions in, or any decisions made by Recipient in reliance on, any\nConfidential Information disclosed under this Agreement.\n10. This Agreement shall become effective as of the date first written above and shall automatically expire two (2) years after the later of\n(i) the execution hereof; provided, however, that prior to such expiration, either Party may terminate this Agreement at any time by written notice to\nthe other; and (ii) the expiration of any contract or agreement between the parties for the provision of services and/or products. Notwithstanding such\nexpiration or termination, all of Recipient’s nondisclosure obligations pursuant to this Agreement shall survive with respect to any Confidential\nInformation received prior to such expiration or termination.\n11. Except upon mutual written agreement, or as may be required by law, neither Party shall in any way or in any form disclose the\nexistence or terms of this Agreement, the discussions that gave rise to this Agreement or the fact that there have been, or will be, discussions or\nnegotiations covered by this Agreement.\n12. The Parties acknowledge that Confidential Information is unique and valuable, and that disclosure in breach of this Agreement will\nresult in irreparable injury to Owner for which monetary damages alone would not be an adequate remedy. Therefore, the Parties agree that in the\nevent of a breach or threatened breach of confidentiality, the Owner shall be entitled to specific performance and injunctive or other equitable relief\nas a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any such relief shall be in addition to and not in lieu\nof any appropriate relief in the way of monetary damages.\n13. Neither Party shall assign any of its rights or obligations hereunder, except to an Affiliate or successor in interest, without the prior,\nwritten consent of the other Party, which consent shall not be unreasonably withheld.\n14. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n15. This Agreement: (a) is the complete agreement of the Parties concerning the subject matter hereof and supersedes any prior such\nagreements with respect to further disclosures concerning such subject matter; (b) may not be amended or in any manner modified except by a\nwritten instrument signed by authorized representatives of both Parties; and (c) shall be governed and construed in accordance with the laws of New\nJersey without regard to its choice of law provisions. The parties hereby agree that any dispute arising from the provisions of this or any other\nagreement between the parties may be litigated in the courts of the State of New Jersey or of the United States District Court for the District of New\nJersey and the parties accordingly hereby consent to submit to the jurisdiction of such courts and expressly waive any objections or defenses based\nupon lack of personal jurisdiction or venue. Such reimbursement shall include all such expenses incurred prior to and at any such trial or proceeding\nand at all levels of appeal and post judgment proceedings.\n16. If any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the\nunenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the\nintention of the Parties as expressed herein.\nIN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be executed by its duly authorized representative.\nVITAMIN SHOPPE INDUSTRIES INC.\nPARTY: RENAISSANCE BRANDS LTD.\nBy:\n/s/ Thomas Tolworthy\nBy:\n/s/ Douglas B. Fox\nPrint Name: Thomas Tolworthy\nPrint Name: Douglas B. Fox\nTitle\nChief Executive Officer\nTitle\nChief Executive Officer\nDate:\nNovember 2005\nDate:\nNovember 2005\n-2-	EX-10.28 4 dex1028.htm MUTUAL CONFIDENTIALITY AGREEMENT\nExhibit 10.28\nMUTUAL CONFIDENTIALITY AGREEMENT\nAgreement between VITAMIN SHOPPE INDUSTURIES INC., a New York corporation having offices at 2101 91% Street, North\nBergen, New Jersey 07047 (“VSI”), and RENAISSANCE BRANDS LTD. having offices at 223 Wall Street, Box 318, Huntington, NY 11743 (the\n“Company”), effective as of November __, 2005.\nWHEREAS, for the purpose as stated in Section 2 below, VSI and the Company (collectively referred to as the “Parties” and\nindividually referred to as a “Party”) have determined to establish terms governing the use and protection of Confidential Information (as defined in\nSection 1 below) that one Party (“Owner”) may disclose to the other Party (“Recipient”).\nNOW, THEREFORE, intending to be legally bound hereby, the Parties agree as follows:\n1. “Confidential Information” means information that relates to the purpose stated in Section 2 below or that, although not related to\nsuch purpose, is nevertheless disclosed as a result of the Parties” discussions in that regard, and that should reasonably have been understood by the\nRecipient, because of legends or other markings, the circumstances of disclosure or the nature of the information itself, to be proprietary and\nconfidential to the Owner, an Affiliate of the Owner or to a third party. Confidential Information may be disclosed in written or other tangible form\n(including on magnetic media) or by oral, visual or other means. The term “Affiliate” means any person or entity directly or indirectly controlling,\ncontrolled by, or under common control with a Party.\n2. A Recipient of Confidential Information may use the Confidential Information only for the purpose of [a possible business\nrelationship or transaction] and only during the period of time stated in the first sentence of Section 10.\n3. Recipient shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own\nconfidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care. Recipient may disclose\nConfidential Information received hereunder to (i) its Affiliates who agree, in advance, in writing, to be bound by this Agreement, and (ii) to its\nemployees and independent contractors, and its Affiliates’ employees and independent contractors, who have a need to know, for the purpose of this\nAgreement, and who are bound to protect the received Confidential Information from unauthorized use and disclosure under the terms of a written\nagreement. Confidential Information shall not otherwise be disclosed to any third party without the prior written consent of the Owner.\n4. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that:\n(a) Was publicly known at the time of Owner’s communication thereof to Recipient;\n(b) Becomes publicly known through no fault of Recipient subsequent to the time of Owner’s communication thereof to Recipient;\n(c) Was in Recipient’s possession free of any obligation of confidence at the time of Owner’s communication thereof to Recipient;\n(d) Is developed by Recipient independently of and without reference to any of Owner’s Confidential Information or other information that\nOwner disclosed in confidence to any third party;\n(e) Is rightfully obtained by Recipient from third parties authorized to make such disclosure without restriction; or\n(f) Is identified in writing by Owner as no longer proprietary or confidential.\n5. In the event Recipient is required by law, regulation or court order to disclose any of Owner’s Confidential Information, Recipient will\npromptly notify Owner in writing prior to making any such disclosure in order to facilitate Owner seeking a protective order or other appropriate\nremedy from the proper authority. Recipient agrees to cooperate with Owner in seeking such order or other remedy. Recipient further agrees that if\nOwner is not successful in precluding the requesting legal body from requiring the disclosure of the Confidential Information, it will furnish only\nthat portion of the Confidential Information, which is legally required and will exercise all reasonable efforts to obtain reliable assurances that\nconfidential treatment will be accorded the Confidential Information.\n6. All Confidential Information disclosed under this Agreement (including information in computer software or held in electronic storage\nmedia) shall be and remain the property of Owner. All such information in tangible form shall be returned to Owner promptly upon written request\nor the termination or expiration of this Agreement, and shall not thereafter be retained in any form by Recipient, its Affiliates, or any employees or\nindependent contractors of Recipient or its Affiliates.\n7. If a Party generates an internal work product containing the other’s Confidential Information, all tangible forms of that work product\nshall be handled in the same manner, and shall be fully governed by, the terms of this Agreement, as the original version of such Confidential\nInformation. The term “internal work product” includes any hard copy, printout, electronic transfer or other transfer of all or portions of Confidential\nInformation into any medium or discernable form.\n-1-\n8. No licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied by this Agreement.\nNeither Party is obligated under this Agreement to purchase from or provide to the other Party any service or product.\n9. Owner shall not have any liability or responsibility for errors or omissions in, or any decisions made by Recipient in reliance on, any\nConfidential Information disclosed under this Agreement.\n10. This Agreement shall become effective as of the date first written above and shall automatically expire two (2) years after the later of\n(i) the execution hereof; provided, however, that prior to such expiration, either Party may terminate this Agreement at any time by written notice to\nthe other; and (ii) the expiration of any contract or agreement between the parties for the provision of services and/or products. Notwithstanding such\nexpiration or termination, all of Recipient’s nondisclosure obligations pursuant to this Agreement shall survive with respect to any Confidential\nInformation received prior to such expiration or termination.\n11. Except upon mutual written agreement, or as may be required by law, neither Party shall in any way or in any form disclose the\nexistence or terms of this Agreement, the discussions that gave rise to this Agreement or the fact that there have been, or will be, discussions or\nnegotiations covered by this Agreement.\n12. The Parties acknowledge that Confidential Information is unique and valuable, and that disclosure in breach of this Agreement will\nresult in irreparable injury to Owner for which monetary damages alone would not be an adequate remedy. Therefore, the Parties agree that in the\nevent of a breach or threatened breach of confidentiality, the Owner shall be entitled to specific performance and injunctive or other equitable relief\nas a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any such relief shall be in addition to and not in lieu\nof any appropriate relief in the way of monetary damages.\n13. Neither Party shall assign any of its rights or obligations hereunder, except to an Affiliate or successor in interest, without the prior,\nwritten consent of the other Party, which consent shall not be unreasonably withheld.\n14. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n15. This Agreement: (a) is the complete agreement of the Parties concerning the subject matter hereof and supersedes any prior such\nagreements with respect to further disclosures concerning such subject matter; (b) may not be amended or in any manner modified except by a\nwritten instrument signed by authorized representatives of both Parties; and (c) shall be governed and construed in accordance with the laws of New\nJersey without regard to its choice of law provisions. The parties hereby agree that any dispute arising from the provisions of this or any other\nagreement between the parties may be litigated in the courts of the State of New Jersey or of the United States District Court for the District of New\nJersey and the parties accordingly hereby consent to submit to the jurisdiction of such courts and expressly waive any objections or defenses based\nupon lack of personal jurisdiction or venue. Such reimbursement shall include all such expenses incurred prior to and at any such trial or proceeding\nand at all levels of appeal and post judgment proceedings.\n16. If any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the\nunenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the\nintention of the Parties as expressed herein.\nIN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be executed by its duly authorized representative.\nVITAMIN SHOPPE INDUSTRIES INC. PARTY: RENAISSANCE BRANDS LTD.\nBy: /s/ Thomas Tolworthy By: /s/ Douglas B. Fox\nPrint Name: Thomas Tolworthy Print Name: Douglas B. Fox\nTitle Chief Executive Officer Title Chief Executive Officer\nDate: November 2005 Date: November 2005\n_2-	EX-10.28 4 x1028.htm MUTUAL CONFIDENTIALITY AGREEMENT\nExhibit 10.28\nMUTUAL CONFIDENTIALITY AGREEMENT\nAgreement between VITAMIN SHOPPE INDUSTURIES INC., a New York corporation having offices at 2101 91st Street, North\nBergen, New Jersey 07047 ("VSI"), and RENAISSANCE BRANDS LTD. having offices at 223 Wall Street, Box 318, Huntington, NY 11743 (the\n"Company"), effective as of November 2005.\nWHEREAS, for the purpose as stated in Section 2 below, VSI and the Company (collectively referred to as the "Parties" and\nindividually referred to as a "Party") have determined to establish terms governing the use and protection of Confidential Information (as defined in\nSection 1 below) that one Party ("Owner") may disclose to the other Party ("Recipient").\nNOW, THEREFORE, intending to be legally bound hereby, the Parties agree as follows:\n1. "Confidential Information" means information that relates to the purpose stated in Section 2 below or that, although not related to\nsuch purpose, is nevertheless disclosed as a result of the Parties' discussions in that regard, and that should reasonably have been understood by the\nRecipient, because of legends or other markings, the circumstances of disclosure or the nature of the information itself, to be proprietary and\nconfidential to the Owner, an Affiliate of the Owner or to a third party. Confidential Information may be disclosed in written or other tangible form\n(including on magnetic media) or by oral, visual or other means. The term "Affiliate" means any person or entity directly or indirectly controlling,\ncontrolled by, or under common control with a Party.\n2. A Recipient of Confidential Information may use the Confidential Information only for the purpose of apossible business\nrelationship or transaction]\nand only during the period of time stated in the first sentence of Section 10.\n3. Recipient shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own\nconfidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care. Recipient may disclose\nConfidential Information received hereunder to (i) its Affiliates who agree, in advance, in writing, to be bound by this Agreement, and (ii) to its\nemployees and independent contractors, and its Affiliates' employees and independent contractors, who have a need to know, for the purpose of this\nAgreement, and who are bound to protect the received Confidential Information from unauthorized use and disclosure under the terms of a written\nagreement. Confidential Information shall not otherwise be disclosed to any third party without the prior written consent of the Owner.\n4. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that:\n(a) Was publicly known at the time of Owner's communication thereof to Recipient;\n(b) Becomes publicly known through no fault of Recipient subsequent to the time of Owner's communication thereof to Recipient;\n(c) Was in Recipient's possession free of any obligation of confidence at the time of Owner's communication thereof to Recipient;\n(d) Is developed by Recipient independently of and without reference to any of Owner's Confidential Information or other information that\nOwner disclosed in confidence to any third party;\n(e) Is rightfully obtained by Recipient from third parties authorized to make such disclosure without restriction; or\n(f) Is identified in writing by Owner as no longer proprietary or confidential.\n5. In the event Recipient is required by law, regulation or court order to disclose any of Owner's Confidential Information, Recipient will\npromptly notify Owner in writing prior to making any such disclosure in order to facilitate Owner seeking a protective order or other appropriate\nremedy from the proper authority Recipient agrees to cooperate with Owner in seeking such order or other remedy. Recipient further agrees that if\nOwner\nis not successful in precluding the requesting legal body from requiring the disclosure of the Confidential Information, it will furnish only\nthat portion of the Confidential Information, which is legally required and will exercise all reasonable efforts to obtain reliable assurances that\nconfidential treatment will be accorded the Confidential Information.\n6. All Confidential Information disclosed under this Agreement (including information in computer software or held in electronic storage\nmedia) shall be and remain the property of Owner. All such information in tangible form shall be returned to Owner promptly upon written request\nor the termination or expiration of this Agreement, and shall not thereafter be retained in any form by Recipient, its Affiliates, or any employees or\nindependent contractors of Recipient or its Affiliates.\n7. If a Party generates an internal work product containing the other's Confidential Information, all tangible forms of that work product\nshall be handled in the same manner, and shall be fully governed by, the terms of this Agreement, as the original version of such Confidential\nInformation. The term "internal work product" includes any hard copy, printout, electronic transfer or other transfer of all or portions of Confidential\nInformation into any medium or discernable form.\n1\n8. No licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied by this Agreement.\nNeither Party is obligated under this Agreement to purchase from or provide to the other Party any service or product.\n9. Owner shall not have any liability or responsibility for errors or omissions in, or any decisions made by Recipient in reliance on, any\nConfidential Information disclosed under this Agreement.\n10. This Agreement shall become effective as of the date first written above and shall automatically expire two (2) years after the later of\n(i) the execution hereof; provided, however, that prior to such expiration, either Party may terminate this Agreement at any time by written notice to\nthe\nother; and (ii) the expiration of any contract or agreement between the parties for the provision of services and/or products. Notwithstanding such\nexpiration or termination, all of Recipient's nondisclosure obligations pursuant to this Agreement shall survive with respect to any Confidential\nInformation received prior to such expiration or termination.\n11. Except upon mutual written agreement, or as may be required by law, neither Party shall in any way or in any form disclose the\nexistence or terms of this Agreement, the discussions that gave rise to this Agreement or the fact that there have been, or will be, discussions or\nnegotiations covered by this Agreement.\n12. The Parties acknowledge that Confidential Information is unique and valuable, and that disclosure in breach of this Agreement will\nresult\nin\nirreparable injury to Owner for which monetary damages alone would not be an adequate remedy. Therefore, the Parties agree that in the\nevent of a breach or threatened breach of confidentiality, the Owner shall be entitled to specific performance and injunctive or other equitable relief\nas a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any such relief shall be in addition to and not in lieu\nof any appropriate relief in the way of monetary damages.\n13. Neither Party shall assign any of its rights or obligations hereunder, except to an Affiliate or successor in interest, without the prior,\nwritten consent of the other Party, which consent shall not be unreasonably withheld.\n14. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n15. This Agreement: (a) is the complete agreement of the Parties concerning the subject matter hereof and supersedes any prior such\nagreements with respect to further disclosures concerning such subject matter; (b) may not be amended or in any manner modified except by a\nwritten instrument signed by authorized representatives of both Parties; and (c) shall be governed and construed in accordance with the laws of New\nJersey without regard to its choice of law provisions. The parties hereby agree that any dispute arising from the provisions of this or any other\nagreement between the parties may be litigated in the courts of the State of New Jersey or of the United States District Court for the District of New\nJersey and the parties accordingly hereby consent to submit to the jurisdiction of such courts and expressly waive any objections or defenses based\nupon lack of personal jurisdiction or venue. Such reimbursement shall include all such expenses incurred prior to and at any such trial or proceeding\nand at all levels of appeal and post judgment proceedings.\n16. If any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the\nunenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the\nintention of the Parties as expressed herein.\nIN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be executed by its duly authorized representative.\nVITAMIN SHOPPE INDUSTRIES INC.\nPARTY: RENAISSANCE BRANDS LTD.\nBy:\n/s/ Thomas Tolworthy\nBy:\n/s/ Douglas B. Fox\nPrint Name: Thomas Tolworthy\nPrint Name:\nDouglas B. Fox\nTitle\nChief Executive Officer\nTitle\nChief Executive Officer\nDate:\nNovember 2005\nDate:\nNovember 2005\n2	EX-10.28 4 dex1028.htm MUTUAL CONFIDENTIALITY AGREEMENT\nExhibit 10.28\nMUTUAL CONFIDENTIALITY AGREEMENT\nAgreement between VITAMIN SHOPPE INDUSTURIES INC., a New York corporation having offices at 2101 91st\nStreet, North\nBergen, New Jersey 07047 (“VSI”), and RENAISSANCE BRANDS LTD. having offices at 223 Wall Street, Box 318, Huntington, NY 11743 (the\n“Company”), effective as of November , 2005.\nWHEREAS, for the purpose as stated in Section 2 below, VSI and the Company (collectively referred to as the “Parties” and\nindividually referred to as a “Party”) have determined to establish terms governing the use and protection of Confidential Information (as defined in\nSection 1 below) that one Party (“Owner”) may disclose to the other Party (“Recipient”).\nNOW, THEREFORE, intending to be legally bound hereby, the Parties agree as follows:\n1. “Confidential Information” means information that relates to the purpose stated in Section 2 below or that, although not related to\nsuch purpose, is nevertheless disclosed as a result of the Parties’ discussions in that regard, and that should reasonably have been understood by the\nRecipient, because of legends or other markings, the circumstances of disclosure or the nature of the information itself, to be proprietary and\nconfidential to the Owner, an Affiliate of the Owner or to a third party. Confidential Information may be disclosed in written or other tangible form\n(including on magnetic media) or by oral, visual or other means. The term “Affiliate” means any person or entity directly or indirectly controlling,\ncontrolled by, or under common control with a Party.\n2. A Recipient of Confidential Information may use the Confidential Information only for the purpose of [a possible business\nrelationship or transaction]\nand only during the period of time stated in the first sentence of Section 10.\n3. Recipient shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own\nconfidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care. Recipient may disclose\nConfidential Information received hereunder to (i) its Affiliates who agree, in advance, in writing, to be bound by this Agreement, and (ii) to its\nemployees and independent contractors, and its Affiliates’ employees and independent contractors, who have a need to know, for the purpose of this\nAgreement, and who are bound to protect the received Confidential Information from unauthorized use and disclosure under the terms of a written\nagreement. Confidential Information shall not otherwise be disclosed to any third party without the prior written consent of the Owner.\n4. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that:\n(a) Was publicly known at the time of Owner’s communication thereof to Recipient;\n(b) Becomes publicly known through no fault of Recipient subsequent to the time of Owner’s communication thereof to Recipient;\n(c) Was in Recipient’s possession free of any obligation of confidence at the time of Owner’s communication thereof to Recipient;\n(d) Is developed by Recipient independently of and without reference to any of Owner’s Confidential Information or other information that\nOwner disclosed in confidence to any third party;\n(e) Is rightfully obtained by Recipient from third parties authorized to make such disclosure without restriction; or\n(f) Is identified in writing by Owner as no longer proprietary or confidential.\n5. In the event Recipient is required by law, regulation or court order to disclose any of Owner’s Confidential Information, Recipient will\npromptly notify Owner in writing prior to making any such disclosure in order to facilitate Owner seeking a protective order or other appropriate\nremedy from the proper authority. Recipient agrees to cooperate with Owner in seeking such order or other remedy. Recipient further agrees that if\nOwner is not successful in precluding the requesting legal body from requiring the disclosure of the Confidential Information, it will furnish only\nthat portion of the Confidential Information, which is legally required and will exercise all reasonable efforts to obtain reliable assurances that\nconfidential treatment will be accorded the Confidential Information.\n6. All Confidential Information disclosed under this Agreement (including information in computer software or held in electronic storage\nmedia) shall be and remain the property of Owner. All such information in tangible form shall be returned to Owner promptly upon written request\nor the termination or expiration of this Agreement, and shall not thereafter be retained in any form by Recipient, its Affiliates, or any employees or\nindependent contractors of Recipient or its Affiliates.\n7. If a Party generates an internal work product containing the other’s Confidential Information, all tangible forms of that work product\nshall be handled in the same manner, and shall be fully governed by, the terms of this Agreement, as the original version of such Confidential\nInformation. The term “internal work product” includes any hard copy, printout, electronic transfer or other transfer of all or portions of Confidential\nInformation into any medium or discernable form.\n-1-\n8. No licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied by this Agreement.\nNeither Party is obligated under this Agreement to purchase from or provide to the other Party any service or product.\n9. Owner shall not have any liability or responsibility for errors or omissions in, or any decisions made by Recipient in reliance on, any\nConfidential Information disclosed under this Agreement.\n10. This Agreement shall become effective as of the date first written above and shall automatically expire two (2) years after the later of\n(i) the execution hereof; provided, however, that prior to such expiration, either Party may terminate this Agreement at any time by written notice to\nthe other; and (ii) the expiration of any contract or agreement between the parties for the provision of services and/or products. Notwithstanding such\nexpiration or termination, all of Recipient’s nondisclosure obligations pursuant to this Agreement shall survive with respect to any Confidential\nInformation received prior to such expiration or termination.\n11. Except upon mutual written agreement, or as may be required by law, neither Party shall in any way or in any form disclose the\nexistence or terms of this Agreement, the discussions that gave rise to this Agreement or the fact that there have been, or will be, discussions or\nnegotiations covered by this Agreement.\n12. The Parties acknowledge that Confidential Information is unique and valuable, and that disclosure in breach of this Agreement will\nresult in irreparable injury to Owner for which monetary damages alone would not be an adequate remedy. Therefore, the Parties agree that in the\nevent of a breach or threatened breach of confidentiality, the Owner shall be entitled to specific performance and injunctive or other equitable relief\nas a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any such relief shall be in addition to and not in lieu\nof any appropriate relief in the way of monetary damages.\n13. Neither Party shall assign any of its rights or obligations hereunder, except to an Affiliate or successor in interest, without the prior,\nwritten consent of the other Party, which consent shall not be unreasonably withheld.\n14. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\n15. This Agreement: (a) is the complete agreement of the Parties concerning the subject matter hereof and supersedes any prior such\nagreements with respect to further disclosures concerning such subject matter; (b) may not be amended or in any manner modified except by a\nwritten instrument signed by authorized representatives of both Parties; and (c) shall be governed and construed in accordance with the laws of New\nJersey without regard to its choice of law provisions. The parties hereby agree that any dispute arising from the provisions of this or any other\nagreement between the parties may be litigated in the courts of the State of New Jersey or of the United States District Court for the District of New\nJersey and the parties accordingly hereby consent to submit to the jurisdiction of such courts and expressly waive any objections or defenses based\nupon lack of personal jurisdiction or venue. Such reimbursement shall include all such expenses incurred prior to and at any such trial or proceeding\nand at all levels of appeal and post judgment proceedings.\n16. If any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the\nunenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the\nintention of the Parties as expressed herein.\nIN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be executed by its duly authorized representative.\nVITAMIN SHOPPE INDUSTRIES INC.\nPARTY: RENAISSANCE BRANDS LTD.\nBy:\n/s/ Thomas Tolworthy\nBy:\n/s/ Douglas B. Fox\nPrint Name: Thomas Tolworthy\nPrint Name: Douglas B. Fox\nTitle\nChief Executive Officer\nTitle\nChief Executive Officer\nDate:\nNovember 2005\nDate:\nNovember 2005\n-2-
+9f7a97fa1d4912d6312d0a03277c24a8.pdf	effective_date jurisdiction party term	EX-99.5 6 dex995.htm CONFIDENTIALITY, NON-SOLICITATION AND PROPRIETARY INFORMATION\nAGREEMENT\nExhibit 99.5\nConfidentiality, Non-Solicitation and Proprietary Information Agreement\n(Evercore Senior Managing Director)\nThis Confidentiality, Non-Solicitation and Proprietary Information Agreement (the “Agreement”), is made on this 21st\nday of May, 2009,\nbetween Evercore Partners Inc. (the “Company”), and the employee signatory hereof (the “Employee”).\nRECITALS:\nWHEREAS, Employee acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates\n(collectively, “Evercore”);\nWHEREAS, Employee acknowledges that he/she will be provided with access to sensitive, proprietary and confidential information of\nEvercore and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other agents of\nEvercore, which, in each case, Employee acknowledges and agrees constitute valuable assets of Evercore;\nWHEREAS, in connection with the Employee’s execution of an employment agreement with the Company dated as of the date hereof (the\n“Employment Agreement”), Employee agrees to be subject to the restrictive covenants as set forth in this Agreement, effective as of the date\nEmployee commences employment with Evercore (the “Effective Date”);\nNOW THEREFORE, for good and valuable consideration, effective as of the Effective Date, the parties agree as follows:\n1. Confidentiality.\n(a) Employee will not at any time (whether during or after Employee’s employment with Evercore), other than in the ordinary course of\nperforming services for Evercore, (x) retain or use for the benefit, purposes or account of Employee or any other person, firm, partnership, joint\nventure, association, corporation or other business organization, entity or enterprise whatsoever (“Person”); or (y) disclose, divulge, reveal,\ncommunicate, share, transfer or provide access to any Person outside Evercore (other than its professional advisers who are bound by confidentiality\nobligations), any non-public, proprietary or confidential information obtained by Employee in connection with the commencement of Employee’s\nemployment with Evercore or at any time thereafter during the course of Employee’s employment with Evercore — including without limitation\ntrade secrets, know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual\nproperty, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors,\npersonnel, compensation (excluding Employee’s own compensation), recruiting, training, advertising, sales, marketing, promotions, government and\nregulatory activities and approvals — concerning the past, current or future business, activities and operations of Evercore and/or any third party that\nhas disclosed or provided any of the same to Evercore on a confidential basis (provided that with respect to such third party Employee knows\nor reasonably should have known that the third party provided it to Evercore on a confidential basis) (“Confidential Information”) without the prior\nwritten authorization of the Company’s Board of Directors or its designee; provided, however, that in any event Employee shall be permitted to\ndisclose any Confidential Information reasonably necessary (i) to perform Employee’s duties while employed with Evercore or (ii) in connection\nwith any litigation or arbitration involving this or any other agreement entered into between Employee and Evercore before, on or after the date of\nthis Agreement in connection with any action or proceeding in respect thereof; provided further, that in any event Employee shall be permitted to\ndisclose (publicly or otherwise) any Confidential Information reasonably necessary to disclose Employee’s “track record” with the Company at any\ntime after the expiration of the Restricted Period (as defined below in Section 2(a)(i)).\n(b) “Confidential Information” shall not include any information that is (x) generally known to the industry or the public other than as a result\nof Employee’s breach of this covenant or any breach of other confidentiality obligations by third parties to the extent the Employee knows or\nreasonably should have known of such breach by such third parties; (y) made legitimately available to Employee by a third party (unless Employee\nknows or reasonably should have known that such third party has breached any confidentiality obligation); or (z) required by law or by any court,\narbitrator, mediator or administrative or legislative body (including any committee thereof) with actual or apparent jurisdiction to order Employee to\ndisclose or make accessible any information; provided that, with respect to clause (z) Employee, except as otherwise prohibited by law or regulation,\nshall give prompt written notice to Evercore of such requirement, disclose no more information than is so required, and shall reasonably cooperate\nwith any attempts by Evercore, at its sole cost, to obtain a protective order or similar treatment prior to making such disclosure.\n(c) Except as required by law or otherwise set forth in clause (z) of Section 1(b) above, or unless or until publicly disclosed by Evercore,\nEmployee will not disclose to anyone, other than Employee’s immediate family and legal, tax or financial advisors, the existence or contents of this\nAgreement; provided that Employee may disclose (i) to any prospective future employer the provisions of this Agreement provided they agree to\nmaintain the confidentiality of such terms or (ii) in connection with any litigation or arbitration involving this Agreement.\n(d) Upon termination of Employee’s employment with Evercore for any reason, Employee shall (x) cease and not thereafter commence use of\nany Confidential Information or intellectual property (including without limitation, any patent, invention, copyright, trade secret, trademark, trade\nname, logo, domain name or other source indicator) if such property is owned or used by Evercore; (y) immediately destroy, delete, or return to\nEvercore, at Evercore’s option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters\nand other data) in Employee’s possession or control (including any of the foregoing stored or located in Employee’s office, home, laptop or other\ncomputer, whether or not Company property) that contain Confidential Information or otherwise relate to the business of Evercore, except that\nEmployee may retain only those portions of any personal notes, notebooks and diaries that do not contain Confidential Information; and (z) notify\nand fully cooperate with Evercore regarding the delivery or destruction of any other Confidential Information of which Employee is or becomes\naware to the extent such information is in Employee’s possession or control. Notwithstanding anything elsewhere to the contrary, Employee shall be\nentitled to\n-2-\nretain (and not destroy) (x) information showing Employee’s compensation or relating to reimbursement of expenses that Employee reasonably\nbelieves is necessary for tax purposes and (y) copies of plans, programs, policies and arrangements of, or other agreements with, Evercore\naddressing Employee’s compensation or employment or the termination thereof.\n2. Non-Competition; Non-Solicitation; Non-Interference.\n(a) Employee agrees as follows:\n(i) Non-Competition. Subject to Section 2(b) below, during the term of Employee’s employment and during the twelve months\nimmediately following any termination of that employment (regardless of the reason for such termination) (such period, the “Restricted Period”),\nEmployee will not, directly or indirectly:\n(A) engage in any business that competes, as of the Relevant Date (as defined below), with the business of Evercore (other than\nany business engaged in solely by any portfolio company of Evercore), including, without limitation, any businesses that Evercore is actively\nconsidering conducting at the time of Employee’s termination of employment, so long as Employee knows or reasonably should have known about\nsuch plan(s) in any geographical area that is within 100 miles of any geographical area where Evercore provides its products or services as of the\nRelevant Date (a “Competitive Business”);\n(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person)\nwho or which is a Competitive Business as of the date Employee enters such employment or renders such services; or\n(C) subject to the terms of Evercore’s employee investments policy applicable to Employee during the Restricted Period (which,\nwhile employed by Evercore shall mean such policy as in effect from time to time and made available to Employee and, on and after such\nemployment, such policy as in effect on the date immediately prior to the date of termination of Employee’s employment with Evercore), acquire a\nfinancial interest in, or otherwise become actively involved with, any Competitive Business which is a Competitive Business as of the date of such\nacquisition or involvement, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant.\nNotwithstanding the provisions of Section 2(a)(i)(A), (B) or (C) above, nothing contained in this Section 2(a)(i) shall prohibit Employee from\n(i) investing, as a passive investor, in any publicly held company provided that Employee’s beneficial ownership of any class of such publicly held\ncompany’s securities does not exceed two percent (2%) of the outstanding securities of such class, (ii) entering the employ of any academic\ninstitution or governmental or regulatory instrumentality of any country or any domestic or foreign state, county, city or political subdivision, or\n(iii) providing services to a subsidiary or affiliate of an entity that controls a separate subsidiary or affiliate that is a Competitive Business, so long as\nthe subsidiary or affiliate for which Employee may be providing services is not itself a Competitive Business and Employee is not, as an employee\nof such subsidiary or affiliate, engaging in activities that would otherwise cause such subsidiary or affiliate to be deemed a Competitive Business.\nFor purposes of this Section 2(a), the term “Relevant Date” shall mean, during the term of Employee’s\n-3-\nemployment, any date falling during such time, and, for the period of time during the Restricted Period that falls after the date of any termination of\nEmployee’s employment with Evercore, the effective date of termination of Employee’s employment with Evercore.\n(ii) Non-Solicitation of Clients. During the Restricted Period, Employee will not, whether on Employee’s own behalf or on behalf of or\nin conjunction with any Person, directly or indirectly solicit or assist in soliciting the business of, any investment from, any opportunity to make an\ninvestment in, or any opportunity to act as a financial or restructuring advisor in connection with any transaction involving, any client, prospective\nclient, investor, portfolio company, venture capital investee, or prospective portfolio company, venture capital investee, or member of management\nof any portfolio company or venture capital investee or prospective portfolio company or venture capital investee of Evercore, in all such cases\ndetermined as of the Relevant Date (collectively, the “Clients”):\n(A) with whom Employee had personal contact or dealings on behalf of Evercore during the two-year period immediately\npreceding Employee’s termination of employment;\n(B) with whom employees reporting to Employee have had personal contact or dealings on behalf of Evercore during the two-\nyear period immediately preceding the Employee’s termination of employment; or\n(C) with whom Employee had direct or indirect responsibility during the two-year period immediately preceding Employee’s\ntermination of employment.\n(iii) Non-Interference with Business Relationships. During the Restricted Period, Employee will not interfere with, or attempt to interfere\nwith, business relationships (whether formed before, on or after the date of this Agreement) between Evercore, on the one hand, and any Client,\ncustomers, suppliers, partners, of Evercore, on the other hand, in any such case determined as of the Relevant Date.\n(iv) Non-Solicitation of Employees; Non-Solicitation of Consultants. During the term of Employee’s employment and during the twelve\nmonths immediately following the date of any termination of Employee’s employment with Evercore, Employee will not, whether on Employee’s\nown behalf or on behalf of or in conjunction with any Person, directly or indirectly (other than in the ordinary course of Employee’s employment\nwith Evercore on Evercore’s behalf):\n(A) solicit or encourage any employee of Evercore to leave the employment of Evercore; or\n(B) hire any such employee who was employed by Evercore as of the date of Employee’s termination of employment with\nEvercore or who left the employment of Evercore coincident with, or within one year prior to or after, the termination of Employee’s employment\nwith Evercore; or\n(C) solicit or encourage to cease to work with Evercore any consultant that Employee knows, or reasonably should have known,\nis then under contract with Evercore.\n-4-\n(b) The restrictions described in Sections 2(a)(i)-(iii) above shall not apply following any termination of Employee’s employment without\n“Cause” or for “Good Reason” (as such terms are defined in the Employment Agreement); provided, however, that the Company may elect to have\nsuch restrictions apply for up to six months following a termination of Employee’s employment without Cause or for Good Reason to the extent that\nthe Company (i) notifies Employee of such election in writing within five business days following the date of such termination of employment and\n(ii) continues to pay Employee his “Base Salary” (as defined in the Employment Agreement) and provide Employee with medical benefits on the\nsame basis as is provided to actively employed executives of Evercore for the duration of such restrictive period.\n(c) It is expressly understood and agreed that although Employee and Evercore consider the restrictions contained in this Section 2 to be\nreasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in\nthis Agreement is an unenforceable restriction against Employee, the provisions of this Agreement shall not be rendered void but shall be deemed\namended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be\nenforceable (provided that in no event shall any such amendment broaden the time period or scope of any restriction herein). Alternatively, if any\ncourt of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as\nto make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.\n3. Intellectual Property.\n(a) If Employee has created, invented, designed, developed, contributed to or improved any inventions, intellectual property, discoveries,\ncopyrightable subject matters or other similar work of intellectual property (including without limitation, research, reports, software, databases,\nsystems or applications, presentations, textual works, content, or audiovisual materials) (“Works”), either alone or with third parties, prior to or\nduring Employee’s employment with Evercore, that are relevant to or implicated by such employment (“Prior Works”), to the extent Employee has\nretained or does retain any right in such Prior Work, Employee hereby grants Evercore a perpetual, non-exclusive, royalty-free, worldwide,\nassignable, sublicensable license under all rights and intellectual property rights (including rights under patent, industrial property, copyright,\ntrademark, trade secret, unfair competition and related laws) therein to the extent of Employee’s rights in such Prior Work for all purposes in\nconnection with Evercore’s current and future business.\n(b) If Employee creates, invents, designs, develops, contributes to or improves any Works, either alone or with third parties, at any time during\nEmployee’s employment by Evercore and within the scope of such employment and/or with the use of any Evercore resources (“Company Works”),\nEmployee shall promptly and fully disclose same to Evercore and hereby irrevocably assigns, transfers and conveys, to the maximum extent\npermitted by applicable law, and at Evercore’s sole expense, all rights and intellectual property rights therein (including rights under patent,\nindustrial property, copyright, trademark, trade secret, unfair competition and related laws) to Evercore to the extent ownership of any such rights\ndoes not vest originally in Evercore.\n-5-\n(c) Employee agrees to keep and maintain adequate and current written records (in the form of notes, sketches, drawings, and any other form\nor media requested by Evercore) of all Company Works. The records will be available to and remain the sole property and intellectual property of\nEvercore at all times.\n(d) Employee shall take all requested actions and execute all requested documents (including any licenses or assignments required by a\ngovernment contract) at Evercore’s expense (but without further remuneration) to assist Evercore in validating, maintaining, protecting, enforcing,\nperfecting, recording, patenting or registering any of Evercore’s rights in the Prior Works and Company Works as set forth in this Section 3. If\nEvercore is unable for any other reason to secure Employee’s signature on any document for this purpose, then Employee hereby irrevocably\ndesignates and appoints Evercore and its duly authorized officers and agents as Employee’s agent and attorney in fact, to act for and in Employee’s\nbehalf and stead to execute any documents and to do all other lawfully permitted acts in connection with the foregoing.\n(e) Except as may otherwise be required under Section 3(a) above, Employee shall not improperly use for the benefit of, bring to any premises\nof, divulge, disclose, communicate, reveal, transfer or provide access to, or share with Evercore any confidential, proprietary or non-public\ninformation or intellectual property relating to a former employer or other third party which Employee knows or reasonably should have known is\nconfidential, proprietary or non-public information or intellectual property of such third party without the prior written permission of such third\nparty. Employee hereby indemnifies, holds harmless and agrees to defend Evercore and its officers, directors, partners, employees, agents and\nrepresentatives from any breach of the foregoing covenant. Employee shall comply with all relevant policies and guidelines of Evercore, including\nregarding the protection of confidential information and intellectual property and potential conflicts of interest. Employee acknowledges that\nEvercore may amend any such policies and guidelines from time to time, and that Employee remains at all times bound by their most current\nversion.\n(f) The provisions of Section 3 shall survive the termination of Employee’s employment for any reason.\n4. Specific Performance.\nEmployee acknowledges and agrees that in the course of Employee’s employment with Evercore, Employee will be provided with access to\nConfidential Information, and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other\nagents of Evercore, and Employee further acknowledges that such confidential information and relationships are extremely valuable assets of\nEvercore in which Evercore has invested and will continue to invest substantial time, effort and expense. Accordingly, Employee acknowledges and\nagrees that Evercore’s remedies at law for a breach or threatened breach of any of the provisions of Section 1, Section 2, and Section 3 would be\ninadequate and, in recognition of this fact, Employee agrees that, in the event of any material breach of Sections 1 through 3 hereof that Employee\nfails to cure within 10 business days after receiving written notice thereof from Evercore, in addition to any remedies at law, Evercore, without\nposting any bond, shall be entitled to cease making any payments or providing any benefit otherwise required to be paid or provided by Evercore\n(other than any vested benefits\n-6-\nunder any retirement plan, as may otherwise be required by applicable law to be provided or to the extent that Evercore has agreed not to offset or\nforfeit any payments, benefits or entitlements pursuant to any other agreement between Evercore and Employee) and, in the event of any breach or\nthreatened breach of Sections 1 through 3 hereof, seek equitable relief in the form of specific performance, temporary restraining order, temporary or\npermanent injunction or any other equitable remedy which may then be available; provided, however, that if it is subsequently determined in a final\nand binding arbitration or litigation that Employee did not materially breach any such provision, Evercore will promptly pay any payments or\nprovide any benefits, which Evercore may have ceased to pay when originally due and payable, plus an additional amount equal to interest\n(calculated based on the applicable federal rate for the month in which such final determination is made) accrued on the applicable payment or the\namount of the benefit, as applicable, beginning from the date such payment or benefit was originally due and payable through the day preceding the\ndate on which such payment or benefit is ultimately paid hereunder.\n5. Miscellaneous.\n(a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard\nto the conflict of laws provisions thereof.\n(b) Entire Agreement/Amendments. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof\nand supersedes any other agreement with respect to the subject matter hereof. There are no restrictions, agreements, promises, warranties, covenants\nor undertakings between the parties with respect to the subject matter herein other than those expressly set forth herein. This Agreement may not be\naltered, modified, or amended except by written instrument signed by the parties hereto.\n(c) No Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a\nwaiver of such party’s rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this\nAgreement.\n(d) Severability. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in\nany respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby.\n(e) Assignment. This Agreement shall not be assignable by Employee. This Agreement may be assigned by Evercore to a person or entity\nwhich is an affiliate or a successor in interest to substantially all of the business operations of Evercore; provided such person or entity agrees to\nabide by the terms of this Agreement. Upon such assignment in accordance herewith, the rights and obligations of Evercore hereunder shall become\nthe rights and obligations of such affiliate or successor person or entity; provided that in no event shall the provisions of this Agreement be\ninterpreted to apply to the affiliate or the successor person or entity other than with respect to the business of Evercore that is so assigned as of such\ndate (including, without limitation, the business it is engaged in, its employees, clients and its Confidential Information).\n-7-\n(f) Successors; Binding Agreement. This Agreement shall inure to the benefit of and be binding upon personal or legal representatives,\nexecutors, administrators, successors, heirs, distributees, devisees and legatees of the parties hereto.\n(g) Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures\nthereto and hereto were upon the same instrument.\n[signature pages follow]\n-8-\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above.\nEVERCORE PARTNERS INC.\nBy: /s/ Robert B. Walsh\nDate: May 21, 2009\n(Signature Page to Confidentiality, Non-Solicitation and Proprietary Information Agreement)\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above.\nBy: /s/ Ralph L. Schlosstein\nRalph L. Schlosstein\nDate: May 21, 2009\n(Signature Page to Confidentiality, Non-Solicitation and Proprietary Information Agreement)	EX-99.5 6 dex995.htm CONFIDENTIALITY, NON-SOLICITATION AND PROPRIETARY INFORMATION\nAGREEMENT\nExhibit 99.5\nConfidentiality, Non-Solicitation and Proprietary Information Agreement\n(Evercore Senior Managing Director)\nThis Confidentiality, Non-Solicitation and Proprietary Information Agreement (the “Agreement”), is made on this 21% day of May, 2009,\nbetween Evercore Partners Inc. (the “Company”), and the employee signatory hereof (the “Employee”).\nRECITALS:\nWHEREAS, Employee acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates\n(collectively, “Evercore”);\nWHEREAS, Employee acknowledges that he/she will be provided with access to sensitive, proprietary and confidential information of\nEvercore and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other agents of\nEvercore, which, in each case, Employee acknowledges and agrees constitute valuable assets of Evercore;\nWHEREAS, in connection with the Employee’s execution of an employment agreement with the Company dated as of the date hereof (the\n“Employment Agreement”), Employee agrees to be subject to the restrictive covenants as set forth in this Agreement, effective as of the date\nEmployee commences employment with Evercore (the “Effective Date”);\n \nNOW THEREFORE, for good and valuable consideration, effective as of the Effective Date, the parties agree as follows:\n1. Confidentiality.\n(a) Employee will not at any time (whether during or after Employee’s employment with Evercore), other than in the ordinary course of\nperforming services for Evercore, (x) retain or use for the benefit, purposes or account of Employee or any other person, firm, partnership, joint\nventure, association, corporation or other business organization, entity or enterprise whatsoever (“Person”); or (y) disclose, divulge, reveal,\ncommunicate, share, transfer or provide access to any Person outside Evercore (other than its professional advisers who are bound by confidentiality\nobligations), any non-public, proprietary or confidential information obtained by Employee in connection with the commencement of Employee’s\nemployment with Evercore or at any time thereafter during the course of Employee’s employment with Evercore — including without limitation\ntrade secrets, know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual\nproperty, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors,\npersonnel, compensation (excluding Employee’s own compensation), recruiting, training, advertising, sales, marketing, promotions, government and\nregulatory activities and approvals — concerning the past, current or future business, activities and operations of Evercore and/or any third party that\nhas disclosed or provided any of the same to Evercore on a confidential basis (provided that with respect to such third party Employee knows\n \nor reasonably should have known that the third party provided it to Evercore on a confidential basis) (“Confidential Information”) without the prior\nwritten authorization of the Company’s Board of Directors or its designee; provided, however, that in any event Employee shall be permitted to\ndisclose any Confidential Information reasonably necessary (i) to perform Employee’s duties while employed with Evercore or (ii) in connection\nwith any litigation or arbitration involving this or any other agreement entered into between Employee and Evercore before, on or after the date of\nthis Agreement in connection with any action or proceeding in respect thereof; provided further, that in any event Employee shall be permitted to\ndisclose (publicly or otherwise) any Confidential Information reasonably necessary to disclose Employee’s “track record” with the Company at any\ntime after the expiration of the Restricted Period (as defined below in Section 2(a)(i)).\n(b) “Confidential Information” shall not include any information that is (x) generally known to the industry or the public other than as a result\nof Employee’s breach of this covenant or any breach of other confidentiality obligations by third parties to the extent the Employee knows or\nreasonably should have known of such breach by such third parties; (y) made legitimately available to Employee by a third party (unless Employee\nknows or reasonably should have known that such third party has breached any confidentiality obligation); or (z) required by law or by any court,\narbitrator, mediator or administrative or legislative body (including any committee thereof) with actual or apparent jurisdiction to order Employee to\ndisclose or make accessible any information; provided that, with respect to clause (z) Employee, except as otherwise prohibited by law or regulation,\nshall give prompt written notice to Evercore of such requirement, disclose no more information than is so required, and shall reasonably cooperate\nwith any attempts by Evercore, at its sole cost, to obtain a protective order or similar treatment prior to making such disclosure.\n(c) Except as required by law or otherwise set forth in clause (z) of Section 1(b) above, or unless or until publicly disclosed by Evercore,\nEmployee will not disclose to anyone, other than Employee’s immediate family and legal, tax or financial advisors, the existence or contents of this\nAgreement; provided that Employee may disclose (i) to any prospective future employer the provisions of this Agreement provided they agree to\nmaintain the confidentiality of such terms or (ii) in connection with any litigation or arbitration involving this Agreement.\n(d) Upon termination of Employee’s employment with Evercore for any reason, Employee shall (x) cease and not thereafter commence use of\nany Confidential Information or intellectual property (including without limitation, any patent, invention, copyright, trade secret, trademark, trade\nname, logo, domain name or other source indicator) if such property is owned or used by Evercore; (y) immediately destroy, delete, or return to\nEvercore, at Evercore’s option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters\nand other data) in Employee’s possession or control (including any of the foregoing stored or located in Employee’s office, home, laptop or other\ncomputer, whether or not Company property) that contain Confidential Information or otherwise relate to the business of Evercore, except that\nEmployee may retain only those portions of any personal notes, notebooks and diaries that do not contain Confidential Information; and (z) notify\nand fully cooperate with Evercore regarding the delivery or destruction of any other Confidential Information of which Employee is or becomes\naware to the extent such information is in Employee’s possession or control. Notwithstanding anything elsewhere to the contrary, Employee shall be\nentitled to\n-\nretain (and not destroy) (x) information showing Employee’s compensation or relating to reimbursement of expenses that Employee reasonably\nbelieves is necessary for tax purposes and (y) copies of plans, programs, policies and arrangements of, or other agreements with, Evercore\naddressing Employee’s compensation or employment or the termination thereof.\n2. Non-Competition; Non-Solicitation; Non-Interference.\n(a) Employee agrees as follows:\n(i) Non-Competition. Subject to Section 2(b) below, during the term of Employee’s employment and during the twelve months\nimmediately following any termination of that employment (regardless of the reason for such termination) (such period, the “Restricted Period”),\nEmployee will not, directly or indirectly:\n \n(A) engage in any business that competes, as of the Relevant Date (as defined below), with the business of Evercore (other than\nany business engaged in solely by any portfolio company of Evercore), including, without limitation, any businesses that Evercore is actively\nconsidering conducting at the time of Employee’s termination of employment, so long as Employee knows or reasonably should have known about\nsuch plan(s) in any geographical area that is within 100 miles of any geographical area where Evercore provides its products or services as of the\nRelevant Date (a “Competitive Business”);\n(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person)\nwho or which is a Competitive Business as of the date Employee enters such employment or renders such services; or\n(C) subject to the terms of Evercore’s employee investments policy applicable to Employee during the Restricted Period (which,\nwhile employed by Evercore shall mean such policy as in effect from time to time and made available to Employee and, on and after such\nemployment, such policy as in effect on the date immediately prior to the date of termination of Employee’s employment with Evercore), acquire a\nfinancial interest in, or otherwise become actively involved with, any Competitive Business which is a Competitive Business as of the date of such\nacquisition or involvement, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant.\nNotwithstanding the provisions of Section 2(a)(i)(A), (B) or (C) above, nothing contained in this Section 2(a)(i) shall prohibit Employee from\n(i) investing, as a passive investor, in any publicly held company provided that Employee’s beneficial ownership of any class of such publicly held\ncompany’s securities does not exceed two percent (2%) of the outstanding securities of such class, (ii) entering the employ of any academic\ninstitution or governmental or regulatory instrumentality of any country or any domestic or foreign state, county, city or political subdivision, or\n(iii) providing services to a subsidiary or affiliate of an entity that controls a separate subsidiary or affiliate that is a Competitive Business, so long as\nthe subsidiary or affiliate for which Employee may be providing services is not itself a Competitive Business and Employee is not, as an employee\nof such subsidiary or affiliate, engaging in activities that would otherwise cause such subsidiary or affiliate to be deemed a Competitive Business.\nFor purposes of this Section 2(a), the term “Relevant Date” shall mean, during the term of Employee’s\n_3-\nemployment, any date falling during such time, and, for the period of time during the Restricted Period that falls after the date of any termination of\nEmployee’s employment with Evercore, the effective date of termination of Employee’s employment with Evercore.\n(ii) Non-Solicitation of Clients. During the Restricted Period, Employee will not, whether on Employee’s own behalf or on behalf of or\nin conjunction with any Person, directly or indirectly solicit or assist in soliciting the business of, any investment from, any opportunity to make an\ninvestment in, or any opportunity to act as a financial or restructuring advisor in connection with any transaction involving, any client, prospective\nclient, investor, portfolio company, venture capital investee, or prospective portfolio company, venture capital investee, or member of management\nof any portfolio company or venture capital investee or prospective portfolio company or venture capital investee of Evercore, in all such cases\ndetermined as of the Relevant Date (collectively, the “Clients”):\n(A) with whom Employee had personal contact or dealings on behalf of Evercore during the two-year period immediately\npreceding Employee’s termination of employment;\n(B) with whom employees reporting to Employee have had personal contact or dealings on behalf of Evercore during the two-\nyear period immediately preceding the Employee’s termination of employment; or\n(C) with whom Employee had direct or indirect responsibility during the two-year period immediately preceding Employee’s\ntermination of employment.\n(iii) Non-Interference with Business Relationships. During the Restricted Period, Employee will not interfere with, or attempt to interfere\nwith, business relationships (whether formed before, on or after the date of this Agreement) between Evercore, on the one hand, and any Client,\ncustomers, suppliers, partners, of Evercore, on the other hand, in any such case determined as of the Relevant Date.\n(iv) Non-Solicitation of Employees; Non-Solicitation of Consultants. During the term of Employee’s employment and during the twelve\nmonths immediately following the date of any termination of Employee’s employment with Evercore, Employee will not, whether on Employee’s\nown behalf or on behalf of or in conjunction with any Person, directly or indirectly (other than in the ordinary course of Employee’s employment\nwith Evercore on Evercore’s behalf):\n(A) solicit or encourage any employee of Evercore to leave the employment of Evercore; or\n(B) hire any such employee who was employed by Evercore as of the date of Employee’s termination of employment with\nEvercore or who left the employment of Evercore coincident with, or within one year prior to or after, the termination of Employee’s employment\nwith Evercore; or\n(C) solicit or encourage to cease to work with Evercore any consultant that Employee knows, or reasonably should have known,\nis then under contract with Evercore.\n4-\n(b) The restrictions described in Sections 2(a)(i)-(iii) above shall not apply following any termination of Employee’s employment without\n“Cause” or for “Good Reason” (as such terms are defined in the Employment Agreement); provided, however, that the Company may elect to have\nsuch restrictions apply for up to six months following a termination of Employee’s employment without Cause or for Good Reason to the extent that\nthe Company (i) notifies Employee of such election in writing within five business days following the date of such termination of employment and\n(ii) continues to pay Employee his “Base Salary” (as defined in the Employment Agreement) and provide Employee with medical benefits on the\nsame basis as is provided to actively employed executives of Evercore for the duration of such restrictive period.\n \n(c) It is expressly understood and agreed that although Employee and Evercore consider the restrictions contained in this Section 2 to be\nreasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in\nthis Agreement is an unenforceable restriction against Employee, the provisions of this Agreement shall not be rendered void but shall be deemed\namended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be\nenforceable (provided that in no event shall any such amendment broaden the time period or scope of any restriction herein). Alternatively, if any\ncourt of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as\nto make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.\n3. Intellectual Property.\n(a) If Employee has created, invented, designed, developed, contributed to or improved any inventions, intellectual property, discoveries,\ncopyrightable subject matters or other similar work of intellectual property (including without limitation, research, reports, software, databases,\nsystems or applications, presentations, textual works, content, or audiovisual materials) (“Works”), either alone or with third parties, prior to or\nduring Employee’s employment with Evercore, that are relevant to or implicated by such employment (“Prior Works”), to the extent Employee has\nretained or does retain any right in such Prior Work, Employee hereby grants Evercore a perpetual, non-exclusive, royalty-free, worldwide,\nassignable, sublicensable license under all rights and intellectual property rights (including rights under patent, industrial property, copyright,\ntrademark, trade secret, unfair competition and related laws) therein to the extent of Employee’s rights in such Prior Work for all purposes in\nconnection with Evercore’s current and future business.\n \n(b) If Employee creates, invents, designs, develops, contributes to or improves any Works, either alone or with third parties, at any time during\nEmployee’s employment by Evercore and within the scope of such employment and/or with the use of any Evercore resources (“Company Works”),\nEmployee shall promptly and fully disclose same to Evercore and hereby irrevocably assigns, transfers and conveys, to the maximum extent\npermitted by applicable law, and at Evercore’s sole expense, all rights and intellectual property rights therein (including rights under patent,\nindustrial property, copyright, trademark, trade secret, unfair competition and related laws) to Evercore to the extent ownership of any such rights\ndoes not vest originally in Evercore.\n_5-\n(c) Employee agrees to keep and maintain adequate and current written records (in the form of notes, sketches, drawings, and any other form\nor media requested by Evercore) of all Company Works. The records will be available to and remain the sole property and intellectual property of\nEvercore at all times.\n(d) Employee shall take all requested actions and execute all requested documents (including any licenses or assignments required by a\ngovernment contract) at Evercore’s expense (but without further remuneration) to assist Evercore in validating, maintaining, protecting, enforcing,\nperfecting, recording, patenting or registering any of Evercore’s rights in the Prior Works and Company Works as set forth in this Section 3. If\nEvercore is unable for any other reason to secure Employee’s signature on any document for this purpose, then Employee hereby irrevocably\ndesignates and appoints Evercore and its duly authorized officers and agents as Employee’s agent and attorney in fact, to act for and in Employee’s\nbehalf and stead to execute any documents and to do all other lawfully permitted acts in connection with the foregoing.\n(e) Except as may otherwise be required under Section 3(a) above, Employee shall not improperly use for the benefit of, bring to any premises\nof, divulge, disclose, communicate, reveal, transfer or provide access to, or share with Evercore any confidential, proprietary or non-public\ninformation or intellectual property relating to a former employer or other third party which Employee knows or reasonably should have known is\nconfidential, proprietary or non-public information or intellectual property of such third party without the prior written permission of such third\nparty. Employee hereby indemnifies, holds harmless and agrees to defend Evercore and its officers, directors, partners, employees, agents and\nrepresentatives from any breach of the foregoing covenant. Employee shall comply with all relevant policies and guidelines of Evercore, including\nregarding the protection of confidential information and intellectual property and potential conflicts of interest. Employee acknowledges that\nEvercore may amend any such policies and guidelines from time to time, and that Employee remains at all times bound by their most current\nversion.\n(f) The provisions of Section 3 shall survive the termination of Employee’s employment for any reason.\n4. Specific Performance.\nEmployee acknowledges and agrees that in the course of Employee’s employment with Evercore, Employee will be provided with access to\nConfidential Information, and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other\nagents of Evercore, and Employee further acknowledges that such confidential information and relationships are extremely valuable assets of\nEvercore in which Evercore has invested and will continue to invest substantial time, effort and expense. Accordingly, Employee acknowledges and\nagrees that Evercore’s remedies at law for a breach or threatened breach of any of the provisions of Section 1, Section 2, and Section 3 would be\ninadequate and, in recognition of this fact, Employee agrees that, in the event of any material breach of Sections 1 through 3 hereof that Employee\nfails to cure within 10 business days after receiving written notice thereof from Evercore, in addition to any remedies at law, Evercore, without\nposting any bond, shall be entitled to cease making any payments or providing any benefit otherwise required to be paid or provided by Evercore\n(other than any vested benefits\n-6-\nunder any retirement plan, as may otherwise be required by applicable law to be provided or to the extent that Evercore has agreed not to offset or\nforfeit any payments, benefits or entitlements pursuant to any other agreement between Evercore and Employee) and, in the event of any breach or\nthreatened breach of Sections 1 through 3 hereof, seek equitable relief in the form of specific performance, temporary restraining order, temporary or\npermanent injunction or any other equitable remedy which may then be available; provided, however, that if it is subsequently determined in a final\nand binding arbitration or litigation that Employee did not materially breach any such provision, Evercore will promptly pay any payments or\nprovide any benefits, which Evercore may have ceased to pay when originally due and payable, plus an additional amount equal to interest\n(calculated based on the applicable federal rate for the month in which such final determination is made) accrued on the applicable payment or the\namount of the benefit, as applicable, beginning from the date such payment or benefit was originally due and payable through the day preceding the\ndate on which such payment or benefit is ultimately paid hereunder.\n5. Miscellaneous.\n(a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard\nto the conflict of laws provisions thereof.\n(b) Entire Agreement/Amendments. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof\nand supersedes any other agreement with respect to the subject matter hereof. There are no restrictions, agreements, promises, warranties, covenants\nor undertakings between the parties with respect to the subject matter herein other than those expressly set forth herein. This Agreement may not be\naltered, modified, or amended except by written instrument signed by the parties hereto.\n(c) No Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a\nwaiver of such party’s rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this\nAgreement.\n(d) Severability. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in\nany respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby.\n(e) Assignment. This Agreement shall not be assignable by Employee. This Agreement may be assigned by Evercore to a person or entity\nwhich is an affiliate or a successor in interest to substantially all of the business operations of Evercore; provided such person or entity agrees to\nabide by the terms of this Agreement. Upon such assignment in accordance herewith, the rights and obligations of Evercore hereunder shall become\nthe rights and obligations of such affiliate or successor person or entity; provided that in no event shall the provisions of this Agreement be\ninterpreted to apply to the affiliate or the successor person or entity other than with respect to the business of Evercore that is so assigned as of such\ndate (including, without limitation, the business it is engaged in, its employees, clients and its Confidential Information).\n_7-\n(f) Successors; Binding Agreement. This Agreement shall inure to the benefit of and be binding upon personal or legal representatives,\nexecutors, administrators, successors, heirs, distributees, devisees and legatees of the parties hereto.\n(g) Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures\nthereto and hereto were upon the same instrument.\n[signature pages follow]\n_8-\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above.\nEVERCORE PARTNERS INC.\nBy: /s/ Robert B. Walsh\nDate: May 21, 2009\n(Signature Page to Confidentiality, Non-Solicitation and Proprietary Information Agreement)\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above.\nBy: /s/ RalphL. Schlosstein\nRalph L. Schlosstein\nDate: May 21, 2009\n(Signature Page to Confidentiality, Non-Solicitation and Proprietary Information Agreement)	EX-99.5 6 dex995.htm CONFIDENTIALITY, NON-SOLICITATION AND PROPRIETARY INFORMATION\nAGREEMENT\nExhibit 99.5\nConfidentiality, Non-Solicitation and Proprietary Information Agreement\n(Evercore Senior Managing Director)\nThis Confidentiality, Non-Solicitation and Proprietary Information Agreement (the "Agreement"), is made on this 21st day of May, 2009,\nbetween Evercore Partners Inc. (the "Company."), and the employee signatory hereof (the "Employee").\nRECITALS:\nWHEREAS, Employee acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates\n(collectively, "Evercore");\nWHEREAS, Employee acknowledges that he/she will be provided with access to sensitive, proprietary and confidential information of\nEvercore and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other agents of\nEvercore, which, in each case, Employee acknowledges and agrees constitute valuable assets of Evercore;\nWHEREAS, in connection with the Employee's execution of an employment agreement with the Company dated as of the date hereof (the\n"Employment Agreement"), Employee agrees to be subject to the restrictive covenants as set forth in this Agreement, effective as of the date\nEmployee commences employment with Evercore (the "Effective Date");\nNOW THEREFORE, for good and valuable consideration, effective as of the Effective Date, the parties agree as follows:\n1. Confidentiality.\n(a) Employee will not at any time (whether during or after Employee's employment with Evercore), other than in the ordinary course of\nperforming services for Evercore, (x) retain or use for the benefit, purposes or account of Employee or any other person, firm, partnership, joint\nventure, association, corporation or other business organization, entity or enterprise whatsoever ("Person"); or (y) disclose, divulge, reveal,\ncommunicate, share, transfer or provide access to any Person outside Evercore (other than its professional advisers who are bound by confidentiality\nobligations), any non-public, proprietary or confidential information obtained by Employee in connection with the commencement of Employee's\nemployment with Evercore or at any time thereafter during the course of Employee's employment with Evercore - including without limitation\ntrade secrets, know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual\nproperty, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors,\npersonnel, compensation (excluding Employee's own compensation), recruiting, training, advertising, sales, marketing, promotions, government and\nregulatory activities and approvals concerning the past, current or future business, activities and operations of Evercore and/or any third party that\nhas disclosed or provided any of the same to Evercore on a confidential basis (provided that with respect to such third party Employee knows\nor reasonably should have known that the third party provided it to Evercore on a confidential basis) ("Confidentia Information") without the prior\nwritten authorization of the Company's Board of Directors or its designee; provided, however, that in any event Employee shall be permitted to\ndisclose any Confidential Information reasonably necessary (i) to perform Employee's duties while employed with Evercore or (ii) in connection\nwith any litigation or arbitration involving this or any other agreement entered into between Employee and Evercore before, on or after the date of\nthis Agreement in connection with any action or proceeding in respect thereof; provided further, that in any event Employee shall be permitted to\ndisclose (publicly or otherwise) any Confidential Information reasonably necessary to disclose Employee's "track record" with the Company at any\ntime after the expiration of the Restricted Period (as defined below in Section 2(a)(i)).\n(b) "Confidential Information" shall not include any information that is (x) generally known to the industry or the public other than as a result\nof Employee's breach of this covenant or any breach of other confidentiality obligations by third parties to the extent the Employee knows or\nreasonably should have known of such breach by such third parties; (y) made legitimately available to Employee by a third party (unless Employee\nknows or reasonably should have known that such third party has breached any confidentiality obligation); or (z) required by law or by any court,\narbitrator, mediator or administrative or legislative body (including any committee thereof) with actual or apparent jurisdiction to order Employee to\ndisclose or make accessible any information; provided that, with respect to clause (z) Employee, except as otherwise prohibited by law or regulation,\nshall give prompt written notice to Evercore of such requirement, disclose no more information than is so required, and shall reasonably cooperate\nwith any attempts by Evercore, at its sole cost, to obtain a protective order or similar treatment prior to making such disclosure.\n(c) Except as required by law or otherwise set forth in clause (z) of Section 1(b) above, or unless or until publicly disclosed by Evercore,\nEmployee will not disclose to anyone, other than Employee's immediate family and legal, tax or financial advisors, the existence or contents of this\nAgreement; provided that Employee may disclose (i) to any prospective future employer the provisions of this Agreement provided they agree to\nmaintain the confidentiality of such terms or (ii) in connection with any litigation or arbitration involving this Agreement.\n(d) Upon termination of Employee's employment with Evercore for any reason, Employee shall (x) cease and not thereafter commence use\nof\nany Confidential Information or intellectual property (including without limitation, any patent, invention, copyright, trade secret, trademark, trade\nname, logo, domain name or other source indicator) if such property is owned or used by Evercore; (y) immediately destroy, delete, or return to\nEvercore, at Evercore's option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters\nand other data) in Employee's possession or control (including any of the foregoing stored or located in Employee's office, home, laptop or other\ncomputer, whether or not Company property) that contain Confidential Information or otherwise relate to the business of Evercore, except that\nEmployee may retain only those portions of any personal notes, notebooks and diaries that do not contain Confidential Information; and (z) notify\nand fully cooperate with Evercore regarding the delivery or destruction of any other Confidential Information of which Employee is or becomes\naware to the extent such information is in Employee's possession or control. Notwithstanding anything elsewhere to the contrary, Employee shall be\nentitled to\n-2-\nretain (and not destroy) (x) information showing Employee's compensation or relating to reimbursement of expenses that Employee reasonably\nbelieves is necessary for tax purposes and (y) copies of plans, programs, policies and arrangements of, or other agreements with, Evercore\naddressing Employee's compensation or employment or the termination thereof.\n2. Non-Competition; Non-Solicitation; Non-Interference.\n(a) Employee agrees as follows:\n(i) Non-Competition. Subject to Section 2(b) below, during the term of Employee's employment and during the twelve months\nimmediately following any termination of that employment (regardless of the reason for such termination) (such period, the "Restricted Period"),\nEmployee will not, directly or indirectly:\n(A) engage in any business that competes, as of the Relevant Date (as defined below), with the business of Evercore (other than\nany business engaged in solely by any portfolio company of Evercore), including, without limitation, any businesses that Evercore is actively\nconsidering conducting at the time of Employee's termination of employment, so long as Employee knows or reasonably should have known about\nsuch plan(s) in any geographical area that is within 100 miles of any geographical area where Evercore provides its products or services as of the\nRelevant Date (a "Competitive Business");\n(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person)\nwho or which is a Competitive Business as of the date Employee enters such employment or renders such services; or\n(C) subject to the terms of Evercore's employee investments policy applicable to Employee during the Restricted Period (which,\nwhile employed by Evercore shall mean such policy as in effect from time to time and made available to Employee and, on and after such\nemployment, such policy as in effect on the date immediately prior to the date of termination of Employee's employment with Evercore), acquire a\nfinancial\ninterest in, or otherwise become actively involved with, any Competitive Business which is a Competitive Business as of the date of such\nacquisition or involvement, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant.\nNotwithstanding the provisions of Section 2(a)(i)(A), (B) or (C) above, nothing contained in this Section 2(a)(i) shall prohibit Employee from\n(i) investing, as a passive investor, in any publicly held company provided that Employee's beneficial ownership of any class of such publicly held\ncompany's securities does not exceed two percent (2%) of the outstanding securities of such class, (ii) entering the employ of any academic\ninstitution or governmental or regulatory instrumentality of any country or any domestic or foreign state, county, city or political subdivision, or\n(iii) providing services to a subsidiary or affiliate of an entity that controls a separate subsidiary or affiliate that is a Competitive Business, so long as\nthe subsidiary or affiliate for which Employee may be providing services is not itself a Competitive Business and Employee is not, as an employee\nof such subsidiary or affiliate, engaging in activities that would otherwise cause such subsidiary or affiliate to be deemed a Competitive Business.\nFor purposes of this Section 2(a), the term "Relevant Date" shall mean, during the term of Employee's\n-3-\nemployment, any date falling during such time, and, for the period of time during the Restricted Period that falls after the date of any termination of\nEmployee's employment with Evercore, the effective date of termination of Employee's employment with Evercore.\n(ii) Non-Solicitation of Clients. During the Restricted Period, Employee will not, whether on Employee's own behalf or on behalf of or\nin\nconjunction with any Person, directly or indirectly solicit or assist in soliciting the business of, any investment from, any opportunity to make an\ninvestment\nin,\nor\nany opportunity to act as a financial or restructuring advisor in connection with any transaction involving, any client, prospective\nclient, investor, portfolio company, venture capital investee, or prospective portfolio company, venture capital investee, or member of management\nof any portfolio company or venture capital investee or prospective portfolio company or venture capital investee of Evercore, in all such cases\ndetermined as of the Relevant Date (collectively, the "Clients"):\n(A) with whom Employee had personal contact or dealings on behalf of Evercore during the two-year period immediately\npreceding Employee's termination of employment;\n(B) with whom employees reporting to Employee have had personal contact or dealings on behalf of Evercore during the two-\nyear period immediately preceding the Employee's termination of employment; or\n(C) with whom Employee had direct or indirect responsibility during the two-year period immediately preceding Employee's\ntermination of employment.\n(iii) Non-Interference with Business Relationships. During the Restricted Period, Employee will not interfere with, or attempt to interfere\nwith, business relationships (whether formed before, on or after the date of this Agreement) between Evercore, on the one hand, and any Client,\ncustomers, suppliers, partners, of Evercore, on the other hand, in any such case determined as of the Relevant Date.\n(iv) Non-Solicitation of Employees; Non-Solicitation of Consultants. During the term of Employee's employment and during the twelve\nmonths immediately following the date of any termination of Employee's employment with Evercore, Employee will not, whether on Employee's\nown behalf or on behalf of or in conjunction with any Person, directly or indirectly (other than in the ordinary course of Employee's employment\nwith Evercore on Evercore's behalf):\n(A) solicit or encourage any employee of Evercore to leave the employment of Evercore; or\n(B) hire any such employee who was employed by Evercore as of the date of Employee's termination of employment with\nEvercore or who left the employment of Evercore coincident with, or within one year prior to or after, the termination of Employee's employment\nwith Evercore; or\n(C) solicit or encourage to cease to work with Evercore any consultant that Employee knows, or reasonably should have known,\nis then under contract with Evercore.\n-4-\n(b) The restrictions described in Sections 2(a)(i)-(iii) above shall not apply following any termination of Employee's employment without\n"Cause" or for "Good Reason" (as such terms are defined in the Employment Agreement); provided, however, that the Company may elect to have\nsuch restrictions apply for up to six months following a termination of Employee's employment without Cause or for Good Reason to the extent that\nthe Company (i) notifies Employee of such election in writing within five business days following the date of such termination of employment and\n(ii) continues to pay Employee his "Base Salary" (as defined in the Employment Agreement) and provide Employee with medical benefits on the\nsame basis as is provided to actively employed executives of Evercore for the duration of such restrictive period.\n(c) It is expressly understood and agreed that although Employee and Evercore consider the restrictions contained in this Section 2\nto\nbe\nreasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in\nthis Agreement is an unenforceable restriction against Employee, the provisions of this Agreement shall not be rendered void but shall be deemed\namended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be\nenforceable (provided that in no event shall any such amendment broaden the time period or scope of any restriction herein). Alternatively, if any\ncourt of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as\nto make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.\n3. Intellectual Property.\n(a) If Employee has created, invented, designed, developed, contributed to or improved any inventions, intellectual property, discoveries,\ncopyrightable subject matters or other similar work of intellectual property (including without limitation, research, reports, software, databases,\nsystems or applications, presentations, textual works, content, or audiovisual materials) ("Works"), either alone or with third parties, prior to\nor\nduring Employee's employment with Evercore, that are relevant to or implicated by such employment ("Prior Works"), to the extent\nEmployee\nhas\nretained or does retain any right in such Prior Work, Employee hereby grants Evercore a perpetual, non-exclusive, royalty-free, worldwide,\nassignable, sublicensable license under all rights and intellectual property rights (including rights under patent, industrial property, copyright,\ntrademark, trade secret, unfair competition and related laws) therein to the extent of Employee's rights in such Prior Work for all purposes\nin\nconnection with Evercore's current and future business.\n(b) If Employee creates, invents, designs, develops, contributes to or improves any Works, either alone or with third parties, at any time during\nEmployee's employment by Evercore and within the scope of such employment and/or with the use of any Evercore resources ("Company. Works"),\nEmployee shall promptly and fully disclose same to Evercore and hereby irrevocably assigns, transfers and conveys, to the maximum extent\npermitted by applicable law, and at Evercore's sole expense, all rights and intellectual property rights therein (including rights under patent,\nindustrial property, copyright, trademark, trade secret, unfair competition and related laws) to Evercore to the extent ownership of any such rights\ndoes not vest originally in Evercore.\n-5-\n(c)\nEmployee agrees to keep and maintain adequate and current written records (in the form of notes, sketches, drawings, and any other\nform\nor media requested by Evercore) of all Company Works. The records will be available to and remain the sole property and intellectual property\nof\nEvercore at all times.\n(d) Employee shall take all requested actions and execute all requested documents (including any licenses or assignments required by a\ngovernment contract) at Evercore's expense (but without further remuneration) to assist Evercore in validating, maintaining, protecting, enforcing,\nperfecting, recording, patenting or registering any of Evercore's rights in the Prior Works and Company Works as set forth in this Section 3.\nIf\nEvercore is unable for any other reason to secure Employee's signature on any document for this purpose, then Employee hereby irrevocably\ndesignates and appoints Evercore and its duly authorized officers and agents as Employee's agent and attorney in fact, to act for and in Employee's\nbehalf and stead to execute any documents and to do all other lawfully permitted acts in connection with the foregoing.\n(e) Except as may otherwise be required under Section 3(a) above, Employee shall not improperly use for the benefit of, bring to any premises\nof, divulge, disclose, communicate, reveal, transfer or provide access to, or share with Evercore any confidential, proprietary or non-public\ninformation or intellectual property relating to a former employer or other third party which Employee knows or reasonably should have known is\nconfidential, proprietary or non-public information or intellectual property of such third party without the prior written permission of such third\nparty. Employee hereby indemnifies, holds harmless and agrees to defend Evercore and its officers, directors, partners, employees, agents and\nrepresentatives from any breach of the foregoing covenant. Employee shall comply with all relevant policies and guidelines of Evercore, including\nregarding the protection of confidentia information and intellectual property and potential conflicts of interest. Employee acknowledges that\nEvercore may amend any such policies and guidelines from time to time, and that Employee remains at all times bound by their most current\nversion.\n(f) The provisions of Section 3 shall survive the termination of Employee's employment for any reason.\n4. Specific Performance.\nEmployee acknowledges and agrees that in the course of Employee's employment with Evercore, Employee will be provided with access\nto\nConfidential Information, and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other\nagents of Evercore, and Employee further acknowledges that such confidential information and relationships are extremely valuable assets of\nEvercore in which Evercore has invested and will continue to invest substantial time, effort and expense. Accordingly, Employee acknowledges\nand\nagrees that Evercore's remedies at law for a breach or threatened breach of any of the provisions of Section 1, Section 2, and Section 3 would be\ninadequate and, in recognition of this fact, Employee agrees that, in the event of any material breach of Sections 1 through 3 hereof that Employee\nfails to cure within 10 business days after receiving written notice thereof from Evercore, in addition to any remedies at law, Evercore, without\nposting any bond, shall be entitled to cease making any payments or providing any benefit otherwise required to be paid or provided by Evercore\n(other than any vested benefits\n-6-\nunder any retirement plan, as may otherwise be required by applicable law to be provided or to the extent that Evercore has agreed not to offset or\nforfeit any payments, benefits or entitlements pursuant to any other agreement between Evercore and Employee) and, in the event of any breach\nor\nthreatened breach of Sections 1 through 3 hereof, seek equitable relief in the form of specific performance, temporary restraining order, temporary or\npermanent injunction or any other equitable remedy which may then be available; provided, however, that if it is subsequently determined in a final\nand binding arbitration or litigation that Employee did not materially breach any such provision, Evercore will promptly pay any payments or\nprovide any benefits, which Evercore may have ceased to pay when originally due and payable, plus an additional amount equal to interest\n(calculated based on the applicable federal rate for the month in which such final determination is made) accrued on the applicable payment or the\namount of the benefit, as applicable, beginning from the date such payment or benefit was originally due and payable through the day preceding the\ndate on which such payment or benefit is ultimately paid hereunder.\n5. Miscellaneous.\n(a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard\nto the conflict of laws provisions thereof.\n(b) Entire Agreement/Amendments. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof\nand supersedes any other agreement with respect to the subject matter hereof. There are no restrictions, agreements, promises, warranties, covenants\nor undertakings between the parties with respect to the subject matter herein other than those expressly set forth herein. This Agreement may not be\naltered, modified, or amended except by written instrument signed by the parties hereto.\n(c) No Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a\nwaiver of such party's rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this\nAgreement.\n(d) Severability. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in\nany respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby.\n(e) Assignment. This Agreement shall not be assignable by Employee. This Agreement may be assigned by Evercore to a person or entity\nwhich is an affiliate or a successor in interest to substantially all of the business operations of Evercore; provided such person or entity agrees to\nabide by the terms of this Agreement. Upon such assignment in accordance herewith, the rights and obligations of Evercore hereunder shall become\nthe rights and obligations of such affiliate or successor person or entity; provided that in no event shall the provisions of this Agreement be\ninterpreted to apply to the affiliate or the successor person or entity other than with respect to the business of Evercore that is so assigned as of such\ndate (including, without limitation, the business it is engaged in, its employees, clients and its Confidential Information).\n-7-\n(f) Successors; Binding Agreement. This Agreement shall inure to the benefit of and be binding upon personal or legal representatives,\nexecutors, administrators, successors, heirs, distributees, devisees and legatees of the parties hereto.\n(g) Counterparts This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures\nthereto and hereto were upon the same instrument.\n[signature pages follow]\n-8-\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above.\nEVERCORE PARTNERS INC.\nBy: /s/ Robert B. Walsh\nDate: May 21 2009\n(Signature Page to Confidentiality, Non-Solicitation and Proprietary Information Agreement)\nIN\nWITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above.\nBy: /s/ Ralph L. Schlosstein\nRalph L. Schlosstein\nDate: May 21, 2009\n(Signature Page to Confidentiality, Non-Solicitation and Proprietary Information Agreement)	EX-99.5 6 dex995.htm CONFIDENTIALITY, NON-SOLICITATION AND PROPRIETARY INFORMATION\nAGREEMENT\nExhibit 99.5\nConfidentiality, Non-Solicitation and Proprietary Information Agreement\n(Evercore Senior Managing Director)\nThis Confidentiality, Non-Solicitation and Proprietary Information Agreement (the “Agreement”), is made on this 21st\nday of May, 2009,\nbetween Evercore Partners Inc. (the “Company”), and the employee signatory hereof (the “Employee”).\nRECITALS:\nWHEREAS, Employee acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates\n(collectively, “Evercore”);\nWHEREAS, Employee acknowledges that he/she will be provided with access to sensitive, proprietary and confidential information of\nEvercore and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other agents of\nEvercore, which, in each case, Employee acknowledges and agrees constitute valuable assets of Evercore;\nWHEREAS, in connection with the Employee’s execution of an employment agreement with the Company dated as of the date hereof (the\n“Employment Agreement”), Employee agrees to be subject to the restrictive covenants as set forth in this Agreement, effective as of the date\nEmployee commences employment with Evercore (the “Effective Date”);\nNOW THEREFORE, for good and valuable consideration, effective as of the Effective Date, the parties agree as follows:\n1. Confidentiality.\n(a) Employee will not at any time (whether during or after Employee’s employment with Evercore), other than in the ordinary course of\nperforming services for Evercore, (x) retain or use for the benefit, purposes or account of Employee or any other person, firm, partnership, joint\nventure, association, corporation or other business organization, entity or enterprise whatsoever (“Person”); or (y) disclose, divulge, reveal,\ncommunicate, share, transfer or provide access to any Person outside Evercore (other than its professional advisers who are bound by confidentiality\nobligations), any non-public, proprietary or confidential information obtained by Employee in connection with the commencement of Employee’s\nemployment with Evercore or at any time thereafter during the course of Employee’s employment with Evercore — including without limitation\ntrade secrets, know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual\nproperty, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors,\npersonnel, compensation (excluding Employee’s own compensation), recruiting, training, advertising, sales, marketing, promotions, government and\nregulatory activities and approvals — concerning the past, current or future business, activities and operations of Evercore and/or any third party that\nhas disclosed or provided any of the same to Evercore on a confidential basis (provided that with respect to such third party Employee knows\nor reasonably should have known that the third party provided it to Evercore on a confidential basis) (“Confidential Information”) without the prior\nwritten authorization of the Company’s Board of Directors or its designee; provided, however, that in any event Employee shall be permitted to\ndisclose any Confidential Information reasonably necessary (i) to perform Employee’s duties while employed with Evercore or (ii) in connection\nwith any litigation or arbitration involving this or any other agreement entered into between Employee and Evercore before, on or after the date of\nthis Agreement in connection with any action or proceeding in respect thereof; provided further, that in any event Employee shall be permitted to\ndisclose (publicly or otherwise) any Confidential Information reasonably necessary to disclose Employee’s “track record” with the Company at any\ntime after the expiration of the Restricted Period (as defined below in Section 2(a)(i)).\n(b) “Confidential Information” shall not include any information that is (x) generally known to the industry or the public other than as a result\nof Employee’s breach of this covenant or any breach of other confidentiality obligations by third parties to the extent the Employee knows or\nreasonably should have known of such breach by such third parties; (y) made legitimately available to Employee by a third party (unless Employee\nknows or reasonably should have known that such third party has breached any confidentiality obligation); or (z) required by law or by any court,\narbitrator, mediator or administrative or legislative body (including any committee thereof) with actual or apparent jurisdiction to order Employee to\ndisclose or make accessible any information; provided that, with respect to clause (z) Employee, except as otherwise prohibited by law or regulation,\nshall give prompt written notice to Evercore of such requirement, disclose no more information than is so required, and shall reasonably cooperate\nwith any attempts by Evercore, at its sole cost, to obtain a protective order or similar treatment prior to making such disclosure.\n(c) Except as required by law or otherwise set forth in clause (z) of Section 1(b) above, or unless or until publicly disclosed by Evercore,\nEmployee will not disclose to anyone, other than Employee’s immediate family and legal, tax or financial advisors, the existence or contents of this\nAgreement; provided that Employee may disclose (i) to any prospective future employer the provisions of this Agreement provided they agree to\nmaintain the confidentiality of such terms or (ii) in connection with any litigation or arbitration involving this Agreement.\n(d) Upon termination of Employee’s employment with Evercore for any reason, Employee shall (x) cease and not thereafter commence use of\nany Confidential Information or intellectual property (including without limitation, any patent, invention, copyright, trade secret, trademark, trade\nname, logo, domain name or other source indicator) if such property is owned or used by Evercore; (y) immediately destroy, delete, or return to\nEvercore, at Evercore’s option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters\nand other data) in Employee’s possession or control (including any of the foregoing stored or located in Employee’s office, home, laptop or other\ncomputer, whether or not Company property) that contain Confidential Information or otherwise relate to the business of Evercore, except that\nEmployee may retain only those portions of any personal notes, notebooks and diaries that do not contain Confidential Information; and (z) notify\nand fully cooperate with Evercore regarding the delivery or destruction of any other Confidential Information of which Employee is or becomes\naware to the extent such information is in Employee’s possession or control. Notwithstanding anything elsewhere to the contrary, Employee shall be\nentitled to\n-2-\nretain (and not destroy) (x) information showing Employee’s compensation or relating to reimbursement of expenses that Employee reasonably\nbelieves is necessary for tax purposes and (y) copies of plans, programs, policies and arrangements of, or other agreements with, Evercore\naddressing Employee’s compensation or employment or the termination thereof.\n2. Non-Competition; Non-Solicitation; Non-Interference.\n(a) Employee agrees as follows:\n(i) Non-Competition. Subject to Section 2(b) below, during the term of Employee’s employment and during the twelve months\nimmediately following any termination of that employment (regardless of the reason for such termination) (such period, the “Restricted Period”),\nEmployee will not, directly or indirectly:\n(A) engage in any business that competes, as of the Relevant Date (as defined below), with the business of Evercore (other than\nany business engaged in solely by any portfolio company of Evercore), including, without limitation, any businesses that Evercore is actively\nconsidering conducting at the time of Employee’s termination of employment, so long as Employee knows or reasonably should have known about\nsuch plan(s) in any geographical area that is within 100 miles of any geographical area where Evercore provides its products or services as of the\nRelevant Date (a “Competitive Business”);\n(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person)\nwho or which is a Competitive Business as of the date Employee enters such employment or renders such services; or\n(C) subject to the terms of Evercore’s employee investments policy applicable to Employee during the Restricted Period (which,\nwhile employed by Evercore shall mean such policy as in effect from time to time and made available to Employee and, on and after such\nemployment, such policy as in effect on the date immediately prior to the date of termination of Employee’s employment with Evercore), acquire a\nfinancial interest in, or otherwise become actively involved with, any Competitive Business which is a Competitive Business as of the date of such\nacquisition or involvement, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant.\nNotwithstanding the provisions of Section 2(a)(i)(A), (B) or (C) above, nothing contained in this Section 2(a)(i) shall prohibit Employee from\n(i) investing, as a passive investor, in any publicly held company provided that Employee’s beneficial ownership of any class of such publicly held\ncompany’s securities does not exceed two percent (2%) of the outstanding securities of such class, (ii) entering the employ of any academic\ninstitution or governmental or regulatory instrumentality of any country or any domestic or foreign state, county, city or political subdivision, or\n(iii) providing services to a subsidiary or affiliate of an entity that controls a separate subsidiary or affiliate that is a Competitive Business, so long as\nthe subsidiary or affiliate for which Employee may be providing services is not itself a Competitive Business and Employee is not, as an employee\nof such subsidiary or affiliate, engaging in activities that would otherwise cause such subsidiary or affiliate to be deemed a Competitive Business.\nFor purposes of this Section 2(a), the term “Relevant Date” shall mean, during the term of Employee’s\n-3-\nemployment, any date falling during such time, and, for the period of time during the Restricted Period that falls after the date of any termination of\nEmployee’s employment with Evercore, the effective date of termination of Employee’s employment with Evercore.\n(ii) Non-Solicitation of Clients. During the Restricted Period, Employee will not, whether on Employee’s own behalf or on behalf of or\nin conjunction with any Person, directly or indirectly solicit or assist in soliciting the business of, any investment from, any opportunity to make an\ninvestment in, or any opportunity to act as a financial or restructuring advisor in connection with any transaction involving, any client, prospective\nclient, investor, portfolio company, venture capital investee, or prospective portfolio company, venture capital investee, or member of management\nof any portfolio company or venture capital investee or prospective portfolio company or venture capital investee of Evercore, in all such cases\ndetermined as of the Relevant Date (collectively, the “Clients”):\n(A) with whom Employee had personal contact or dealings on behalf of Evercore during the two-year period immediately\npreceding Employee’s termination of employment;\n(B) with whom employees reporting to Employee have had personal contact or dealings on behalf of Evercore during the two-\nyear period immediately preceding the Employee’s termination of employment; or\n(C) with whom Employee had direct or indirect responsibility during the two-year period immediately preceding Employee’s\ntermination of employment.\n(iii) Non-Interference with Business Relationships. During the Restricted Period, Employee will not interfere with, or attempt to interfere\nwith, business relationships (whether formed before, on or after the date of this Agreement) between Evercore, on the one hand, and any Client,\ncustomers, suppliers, partners, of Evercore, on the other hand, in any such case determined as of the Relevant Date.\n(iv) Non-Solicitation of Employees; Non-Solicitation of Consultants. During the term of Employee’s employment and during the twelve\nmonths immediately following the date of any termination of Employee’s employment with Evercore, Employee will not, whether on Employee’s\nown behalf or on behalf of or in conjunction with any Person, directly or indirectly (other than in the ordinary course of Employee’s employment\nwith Evercore on Evercore’s behalf):\n(A) solicit or encourage any employee of Evercore to leave the employment of Evercore; or\n(B) hire any such employee who was employed by Evercore as of the date of Employee’s termination of employment with\nEvercore or who left the employment of Evercore coincident with, or within one year prior to or after, the termination of Employee’s employment\nwith Evercore; or\n(C) solicit or encourage to cease to work with Evercore any consultant that Employee knows, or reasonably should have known,\nis then under contract with Evercore.\n-4-\n(b) The restrictions described in Sections 2(a)(i)-(iii) above shall not apply following any termination of Employee’s employment without\n“Cause” or for “Good Reason” (as such terms are defined in the Employment Agreement); provided, however, that the Company may elect to have\nsuch restrictions apply for up to six months following a termination of Employee’s employment without Cause or for Good Reason to the extent that\nthe Company (i) notifies Employee of such election in writing within five business days following the date of such termination of employment and\n(ii) continues to pay Employee his “Base Salary” (as defined in the Employment Agreement) and provide Employee with medical benefits on the\nsame basis as is provided to actively employed executives of Evercore for the duration of such restrictive period.\n(c) It is expressly understood and agreed that although Employee and Evercore consider the restrictions contained in this Section 2 to be\nreasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in\nthis Agreement is an unenforceable restriction against Employee, the provisions of this Agreement shall not be rendered void but shall be deemed\namended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be\nenforceable (provided that in no event shall any such amendment broaden the time period or scope of any restriction herein). Alternatively, if any\ncourt of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as\nto make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.\n3. Intellectual Property.\n(a) If Employee has created, invented, designed, developed, contributed to or improved any inventions, intellectual property, discoveries,\ncopyrightable subject matters or other similar work of intellectual property (including without limitation, research, reports, software, databases,\nsystems or applications, presentations, textual works, content, or audiovisual materials) (“Works”), either alone or with third parties, prior to or\nduring Employee’s employment with Evercore, that are relevant to or implicated by such employment (“Prior Works”), to the extent Employee has\nretained or does retain any right in such Prior Work, Employee hereby grants Evercore a perpetual, non-exclusive, royalty-free, worldwide,\nassignable, sublicensable license under all rights and intellectual property rights (including rights under patent, industrial property, copyright,\ntrademark, trade secret, unfair competition and related laws) therein to the extent of Employee’s rights in such Prior Work for all purposes in\nconnection with Evercore’s current and future business.\n(b) If Employee creates, invents, designs, develops, contributes to or improves any Works, either alone or with third parties, at any time during\nEmployee’s employment by Evercore and within the scope of such employment and/or with the use of any Evercore resources (“Company Works”),\nEmployee shall promptly and fully disclose same to Evercore and hereby irrevocably assigns, transfers and conveys, to the maximum extent\npermitted by applicable law, and at Evercore’s sole expense, all rights and intellectual property rights therein (including rights under patent,\nindustrial property, copyright, trademark, trade secret, unfair competition and related laws) to Evercore to the extent ownership of any such rights\ndoes not vest originally in Evercore.\n-5-\n(c) Employee agrees to keep and maintain adequate and current written records (in the form of notes, sketches, drawings, and any other form\nor media requested by Evercore) of all Company Works. The records will be available to and remain the sole property and intellectual property of\nEvercore at all times.\n(d) Employee shall take all requested actions and execute all requested documents (including any licenses or assignments required by a\ngovernment contract) at Evercore’s expense (but without further remuneration) to assist Evercore in validating, maintaining, protecting, enforcing,\nperfecting, recording, patenting or registering any of Evercore’s rights in the Prior Works and Company Works as set forth in this Section 3. If\nEvercore is unable for any other reason to secure Employee’s signature on any document for this purpose, then Employee hereby irrevocably\ndesignates and appoints Evercore and its duly authorized officers and agents as Employee’s agent and attorney in fact, to act for and in Employee’s\nbehalf and stead to execute any documents and to do all other lawfully permitted acts in connection with the foregoing.\n(e) Except as may otherwise be required under Section 3(a) above, Employee shall not improperly use for the benefit of, bring to any premises\nof, divulge, disclose, communicate, reveal, transfer or provide access to, or share with Evercore any confidential, proprietary or non-public\ninformation or intellectual property relating to a former employer or other third party which Employee knows or reasonably should have known is\nconfidential, proprietary or non-public information or intellectual property of such third party without the prior written permission of such third\nparty. Employee hereby indemnifies, holds harmless and agrees to defend Evercore and its officers, directors, partners, employees, agents and\nrepresentatives from any breach of the foregoing covenant. Employee shall comply with all relevant policies and guidelines of Evercore, including\nregarding the protection of confidential information and intellectual property and potential conflicts of interest. Employee acknowledges that\nEvercore may amend any such policies and guidelines from time to time, and that Employee remains at all times bound by their most current\nversion.\n(f) The provisions of Section 3 shall survive the termination of Employee’s employment for any reason.\n4. Specific Performance.\nEmployee acknowledges and agrees that in the course of Employee’s employment with Evercore, Employee will be provided with access to\nConfidential Information, and will be provided with the opportunity to develop relationships with clients, prospective clients, employees and other\nagents of Evercore, and Employee further acknowledges that such confidential information and relationships are extremely valuable assets of\nEvercore in which Evercore has invested and will continue to invest substantial time, effort and expense. Accordingly, Employee acknowledges and\nagrees that Evercore’s remedies at law for a breach or threatened breach of any of the provisions of Section 1, Section 2, and Section 3 would be\ninadequate and, in recognition of this fact, Employee agrees that, in the event of any material breach of Sections 1 through 3 hereof that Employee\nfails to cure within 10 business days after receiving written notice thereof from Evercore, in addition to any remedies at law, Evercore, without\nposting any bond, shall be entitled to cease making any payments or providing any benefit otherwise required to be paid or provided by Evercore\n(other than any vested benefits\n-6-\nunder any retirement plan, as may otherwise be required by applicable law to be provided or to the extent that Evercore has agreed not to offset or\nforfeit any payments, benefits or entitlements pursuant to any other agreement between Evercore and Employee) and, in the event of any breach or\nthreatened breach of Sections 1 through 3 hereof, seek equitable relief in the form of specific performance, temporary restraining order, temporary or\npermanent injunction or any other equitable remedy which may then be available; provided, however, that if it is subsequently determined in a final\nand binding arbitration or litigation that Employee did not materially breach any such provision, Evercore will promptly pay any payments or\nprovide any benefits, which Evercore may have ceased to pay when originally due and payable, plus an additional amount equal to interest\n(calculated based on the applicable federal rate for the month in which such final determination is made) accrued on the applicable payment or the\namount of the benefit, as applicable, beginning from the date such payment or benefit was originally due and payable through the day preceding the\ndate on which such payment or benefit is ultimately paid hereunder.\n5. Miscellaneous.\n(a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard\nto the conflict of laws provisions thereof.\n(b) Entire Agreement/Amendments. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof\nand supersedes any other agreement with respect to the subject matter hereof. There are no restrictions, agreements, promises, warranties, covenants\nor undertakings between the parties with respect to the subject matter herein other than those expressly set forth herein. This Agreement may not be\naltered, modified, or amended except by written instrument signed by the parties hereto.\n(c) No Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a\nwaiver of such party’s rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this\nAgreement.\n(d) Severability. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in\nany respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby.\n(e) Assignment. This Agreement shall not be assignable by Employee. This Agreement may be assigned by Evercore to a person or entity\nwhich is an affiliate or a successor in interest to substantially all of the business operations of Evercore; provided such person or entity agrees to\nabide by the terms of this Agreement. Upon such assignment in accordance herewith, the rights and obligations of Evercore hereunder shall become\nthe rights and obligations of such affiliate or successor person or entity; provided that in no event shall the provisions of this Agreement be\ninterpreted to apply to the affiliate or the successor person or entity other than with respect to the business of Evercore that is so assigned as of such\ndate (including, without limitation, the business it is engaged in, its employees, clients and its Confidential Information).\n-7-\n(f) Successors; Binding Agreement. This Agreement shall inure to the benefit of and be binding upon personal or legal representatives,\nexecutors, administrators, successors, heirs, distributees, devisees and legatees of the parties hereto.\n(g) Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures\nthereto and hereto were upon the same instrument.\n[signature pages follow]\n-8-\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above.\nEVERCORE PARTNERS INC.\nBy: /s/ Robert B. Walsh\nDate: May 21, 2009\n(Signature Page to Confidentiality, Non-Solicitation and Proprietary Information Agreement)\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above.\nBy: /s/ Ralph L. Schlosstein\nRalph L. Schlosstein\nDate: May 21, 2009\n(Signature Page to Confidentiality, Non-Solicitation and Proprietary Information Agreement)
+a1c8a16acba29200a9bf1caeccfaac90.pdf	effective_date jurisdiction party term	EX-10 .4 5 exhibit104-confidentiality.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT, DATED FEBRUARY 19, 2014\nEXHIBIT 10.4\nCONFIDENTIALITY AND\nNON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-Disclosure Agreement (“Agreement”) is entered into as of February 19, 2014, by and\nbetween Calpine Corporation, a Delaware corporation with its principal executive offices at 717 Texas Avenue, Suite\n1000, Houston, Texas 77002 ("Calpine"); and LS Power Equity Advisors, LLC, a Delaware limited liability company,\nwith its principal executive offices at 1700 Broadway, 35\nth Floor, NY, NY 10019 (“LS Power”), referred to collectively\nas "Parties" and individually as "Party."\nRECITALS\nA.\nThe Parties desire to exchange certain proprietary or confidential information for the purpose of evaluating the\npotential acquisition of certain of Calpine’s power generating facilities and other assets (the “Proposed\nTransaction”); and\nB.\nThe Parties are willing to provide such information for such purpose in accordance with the terms hereof;\nNOW, THEREFORE, Calpine and LS Power do hereby mutually agree as follows:\n1. Definitions.\na.\n"Confidential Information" shall mean all confidential or proprietary written, recorded, electronic or oral\ninformation or data (including without limitation research, developmental, engineering, manufacturing,\ntechnical, marketing, sales, financial, operating, performance, cost, business and process information or\ndata, trade secrets, discoveries, ideas, designs, data, source code, object code, processes, computer\nprograms, developments, flow diagrams, know-how, and computer programming and other software and\nsoftware techniques) provided (whether such confidentiality or proprietary status is indicated orally or in\nwriting, whether or not the specific words "confidential" or "proprietary" are used) to a Party (the\n“Receiving Party”) by the other Party (the “Disclosing Party”) in the course of the exchange of such\ninformation or data between the Parties. Without limiting the aforesaid, the existence of discussions\nbetween the Parties regarding the Proposed Transaction shall constitute Confidential Information\nhereunder.\nb.\n“Person” shall be broadly interpreted to include, without limitation, any corporation, company,\npartnership, other entity or individual.\nc.\n“Representatives” shall mean as to any Person, its directors, officers, employees, agents and advisors\n(including, without limitation, financial advisors, attorneys and accountants).\n2.\nConfidentiality and Non-Use. In consideration of each Party's providing Confidential Information, the Parties\nagree as follows:\n1\na.\nThe Receiving Party shall hold confidential and not disclose to any Person, without the prior written\nconsent of the Disclosing Party, all Confidential Information and any information about the Proposed\nTransaction, or the terms or conditions or any other facts relating thereto, including, without limitation,\nthe fact that discussions are taking place with respect thereto or the status thereof, or the fact that\nConfidential Information has been made available to the Receiving Party or its Representatives; provided,\nhowever, that the Receiving Party may disclose such Confidential Information to its Representatives who\nare actively and directly participating in its evaluation of the Proposed Transaction or who otherwise need\nto know the Confidential Information for the purpose of evaluating the Proposed Transaction;\nb.\nThe Receiving Party shall cause all its Representatives to observe the terms of this Agreement and shall\nbe responsible for any breach of the terms of this Agreement by it or its Representatives; and\nc.\nThe Receiving Party shall return or destroy all Confidential Information (including all copies thereof)\nwithin thirty (30) days of receipt of a written request.\nIn addition to the foregoing, the Receiving Party will not use the Confidential Information (a) in any way\ndetrimental to the Disclosing Party’s shareholders or (b) for any purpose other than in connection with the\nProposed Transaction between the Parties.\n3.\nExceptions to the Confidentiality and Non-Use Obligations. The obligations imposed by Section 2 hereof shall\nnot apply, or shall cease to apply, to any Confidential Information if or when, but only to the extent that, such\nConfidential Information:\na.\nwas known to the Receiving Party prior to the receipt of the Confidential Information; or\nb.\nwas, or becomes through no breach of the Receiving Party's obligations hereunder, known to the public;\nor\nc.\nbecomes known to the Receiving Party from sources other than the Disclosing Party under circumstances\nnot involving any breach of any confidentiality obligation; or\nd.\nis independently developed by the Receiving Party, as evidenced by the written records thereof.\nIt shall not be a breach of the confidentiality obligations hereof for a Receiving Party to disclose Confidential\nInformation where, but only to the extent that, such disclosure is required by law or applicable legal process,\nprovided in such case the Receiving Party shall (i) give the earliest notice possible to the Disclosing Party that\nsuch disclosure is or may be required and (ii) reasonably cooperate in protecting such confidential or proprietary\nnature of the Confidential Information which must so be disclosed.\n2\n4.\nNo Further Agreements Hereunder. Neither Calpine nor LS Power or any parent, subsidiary or affiliate thereof,\nshall be under any obligation to enter into any further agreements with the other signatory hereto or its parents,\nsubsidiaries or affiliates of any nature whatsoever as a result of this Agreement. The Parties shall be free at all\ntimes to hold negotiations or enter into agreements with any other persons whatsoever (including with respect to\nprojects under discussion by the Parties hereto) in addition to or in lieu of the discussions hereunder and any such\nactivities shall not be a breach of this agreement or any obligations owed to the other Party hereunder. Each Party\nhereto reserves the right, in its sole discretion, to decline, to retract or to reject at any time any proposal which\nhas not yet become legally binding by execution of a written agreement between the Parties with respect thereto,\nor with respect to any further agreements or business arrangements with the other Party hereto, its parents,\nsubsidiaries or affiliates and to terminate all further discussions and negotiations.\n5.\nNo Representations and Warranties. Each of the Parties make no representation or warranties, express or implied,\nof any kind to the other Party with respect to the Confidential Information, including without limitation with\nrespect to the accuracy or completeness thereof. Any representations or warranties shall be made thereby, if at all,\nonly in definitive written agreements that may be entered into hereafter.\n6.\nTermination; Duration of Obligations. Unless sooner terminated by mutual written Agreement of the Parties\nhereto, this Agreement and the obligations hereunder shall terminate one (1) year from the date hereof.\n7.\nEntire Agreement. This Agreement represents the entire understanding and agreement of the Parties and\nsupersedes all prior communications, agreements and understandings between the Parties relating to the subject\nmatter hereof.\n8.\nWaivers; Amendments; Assignment; Counterparts. This Agreement may not be modified, amended or waived\nexcept by a written instrument duly executed by both Parties. No failure or delay by either Party in exercising any\nright, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\nThis Agreement may not be assigned by either Party without the prior written consent of the other and shall be\nbinding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be\nsigned in two or more counterpart originals, each of which shall constitute an original document. The Parties\nagree that this Agreement can be executed via facsimile signatures and be binding.\n9.\nGoverning Law; Disputes. This Agreement is made subject to and shall be construed under the laws of the State\nof New York, without giving effect to its principles or rules regarding conflicts of laws, and that the state and\nfederal courts situated in the State of New York shall have exclusive jurisdiction to resolve any disputes with\nrespect to this Agreement or the Confidential Information with each Party irrevocably consenting to the\njurisdiction thereof for any actions, suits or proceedings arising out of or relating to this Agreement or the\nConfidential Information, and each Party irrevocably waives its rights to jury trials with respect thereto.\n3\n10. Remedies. Without prejudice to the rights and remedies otherwise available to either Party, each Party shall be\nentitled to equitable relief by way of injunction or otherwise if the Receiving Party or any of its Representatives\nbreach or threaten to breach any of the provisions of this Agreement and the Receiving Party shall not plead in\ndefense thereto that there would be an adequate remedy at law.\n11. Non-Publicity: All media releases, public announcements and other disclosures by either Party relating to this\nAgreement or the subject matter hereof, including promotional or marketing material, but excluding\nannouncements intended solely for internal distribution or to meet legal or regulatory requirements, shall be\ncoordinated with and approved by the other Party prior to release. In addition, the Receiving Party shall refrain\nfrom removing, overprinting or defacing any notices of copyright, trademark, logo or other proprietary\nidentifications or notices of confidentiality, from any originals or copies of the Disclosing Party’s Confidential\nInformation.\nIN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by their respective, fully\nauthorized representatives as of the date first written above.\nCalpine Corporation\nLS Power Equity Advisors, LLC\nBy:\n/s/ W. THADDEUS MILLER\nBy:\n/s/ JAMES BARTLETT\nName: W. Thaddeus Miller\nName: James Bartlett\nTitle:\nExecutive Vice President, Chief Legal\nOfficer & Secretary\nTitle:\nPresident\nDate: 02/19/14\nDate:\n02/19/14\n4	EX-10.4 5 exhibit104-confidentiality.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT, DATED FEBRUARY 19, 2014 EXHIBIT 10.4\nCONFIDENTIALITY AND\nNON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-Disclosure Agreement (“Agreement”) is entered into as of February 19, 2014, by and between Calpine Corporation, a Delaware corporation with its principal executive offices at 717 Texas Avenue, Suite 1000, Houston, Texas 77002 ("Calpine"); and LS Power Equity Advisors, LLC, a Delaware limited liability company, with its principal executive offices at 1700 Broadway, 35" Floor, NY, NY 10019 (“LS Power”), referred to collectively as "Parties" and individually as "Party." B. RECITALS\nThe Parties desire to exchange certain proprietary or confidential information for the purpose of evaluating the potential acquisition of certain of Calpine’s power generating facilities and other assets (the “Proposed Transaction”); and The Parties are willing to provide such information for such purpose in accordance with the terms hereof; NOW, THEREFORE, Calpine and LS Power do hereby mutually agree as follows: 1. 2. Definitions. "Confidential Information" shall mean all confidential or proprietary written, recorded, electronic or oral\ninformation or data (including without limitation research, developmental, engineering, manufacturing,\ntechnical, marketing, sales, financial, operating, performance, cost, business and process information or\ndata, trade secrets, discoveries, ideas, designs, data, source code, object code, processes, computer\nprograms, developments, flow diagrams, know-how, and computer programming and other software and\nsoftware techniques) provided (whether such confidentiality or proprietary status is indicated orally or in\nwriting, whether or not the specific words "confidential" or "proprietary" are used) to a Party (the\n“Receiving Party”) by the other Party (the “Disclosing Party”) in the course of the exchange of such\ninformation or data between the Parties. Without limiting the aforesaid, the existence of discussions\nbetween the Parties regarding the Proposed Transaction shall constitute Confidential Information\nhereunder.\n“Person” shall be broadly interpreted to include, without limitation, any corporation, company,\npartnership, other entity or individual.\n“Representatives” shall mean as to any Person, its directors, officers, employees, agents and advisors\n(including, without limitation, financial advisors, attorneys and accountants).\nConfidentiality and Non-Use. In consideration of each Party's providing Confidential Information, the Parties agree as follows:\fa. The Receiving Party shall hold confidential and not disclose to any Person, without the prior written\nconsent of the Disclosing Party, all Confidential Information and any information about the Proposed\nTransaction, or the terms or conditions or any other facts relating thereto, including, without limitation,\nthe fact that discussions are taking place with respect thereto or the status thereof, or the fact that\nConfidential Information has been made available to the Receiving Party or its Representatives; provided,\nhowever, that the Receiving Party may disclose such Confidential Information to its Representatives who\nare actively and directly participating in its evaluation of the Proposed Transaction or who otherwise need\nto know the Confidential Information for the purpose of evaluating the Proposed Transaction;\nb. The Receiving Party shall cause all its Representatives to observe the terms of this Agreement and shall\nbe responsible for any breach of the terms of this Agreement by it or its Representatives; and\nC. The Receiving Party shall return or destroy all Confidential Information (including all copies thereof)\nwithin thirty (30) days of receipt of a written request.\nIn addition to the foregoing, the Receiving Party will not use the Confidential Information (a) in any way\ndetrimental to the Disclosing Party’s shareholders or (b) for any purpose other than in connection with the\nProposed Transaction between the Parties.\nExceptions to the Confidentiality and Non-Use Obligations. The obligations imposed by Section 2 hereof shall\nnot apply, or shall cease to apply, to any Confidential Information if or when, but only to the extent that, such\nConfidential Information:\n \na. was known to the Receiving Party prior to the receipt of the Confidential Information; or\nb. was, or becomes through no breach of the Receiving Party's obligations hereunder, known to the public;\nor\nC. becomes known to the Receiving Party from sources other than the Disclosing Party under circumstances\nnot involving any breach of any confidentiality obligation; or\nd. is independently developed by the Receiving Party, as evidenced by the written records thereof.\nIt shall not be a breach of the confidentiality obligations hereof for a Receiving Party to disclose Confidential\nInformation where, but only to the extent that, such disclosure is required by law or applicable legal process,\nprovided in such case the Receiving Party shall (i) give the earliest notice possible to the Disclosing Party that\nsuch disclosure is or may be required and (ii) reasonably cooperate in protecting such confidential or proprietary\nnature of the Confidential Information which must so be disclosed.\nNo Further Agreements Hereunder. Neither Calpine nor LS Power or any parent, subsidiary or affiliate thereof,\nshall be under any obligation to enter into any further agreements with the other signatory hereto or its parents,\nsubsidiaries or affiliates of any nature whatsoever as a result of this Agreement. The Parties shall be free at all\ntimes to hold negotiations or enter into agreements with any other persons whatsoever (including with respect to\nprojects under discussion by the Parties hereto) in addition to or in lieu of the discussions hereunder and any such\nactivities shall not be a breach of this agreement or any obligations owed to the other Party hereunder. Each Party\nhereto reserves the right, in its sole discretion, to decline, to retract or to reject at any time any proposal which\nhas not yet become legally binding by execution of a written agreement between the Parties with respect thereto,\nor with respect to any further agreements or business arrangements with the other Party hereto, its parents,\nsubsidiaries or affiliates and to terminate all further discussions and negotiations.\nNo Representations and Warranties. Each of the Parties make no representation or warranties, express or implied,\nof any kind to the other Party with respect to the Confidential Information, including without limitation with\nrespect to the accuracy or completeness thereof. Any representations or warranties shall be made thereby, if at all,\nonly in definitive written agreements that may be entered into hereafter.\nTermination;_Duration of Obligations. Unless sooner terminated by mutual written Agreement of the Parties\nhereto, this Agreement and the obligations hereunder shall terminate one (1) year from the date hereof.\nEntire Agreement. This Agreement represents the entire understanding and agreement of the Parties and\nsupersedes all prior communications, agreements and understandings between the Parties relating to the subject\nmatter hereof.\nexcept by a written instrument duly executed by both Parties. No failure or delay by either Party in exercising any\nright, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\nThis Agreement may not be assigned by either Party without the prior written consent of the other and shall be\nbinding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be\nsigned in two or more counterpart originals, each of which shall constitute an original document. The Parties\nagree that this Agreement can be executed via facsimile signatures and be binding.\nGoverning Law; Disputes. This Agreement is made subject to and shall be construed under the laws of the State\nof New York, without giving effect to its principles or rules regarding conflicts of laws, and that the state and\nfederal courts situated in the State of New York shall have exclusive jurisdiction to resolve any disputes with\nrespect to this Agreement or the Confidential Information with each Party irrevocably consenting to the\njurisdiction thereof for any actions, suits or proceedings arising out of or relating to this Agreement or the\nConfidential Information, and each Party irrevocably waives its rights to jury trials with respect thereto.\n10. Remedies. Without prejudice to the rights and remedies otherwise available to either Party, each Party shall be\nentitled to equitable relief by way of injunction or otherwise if the Receiving Party or any of its Representatives\nbreach or threaten to breach any of the provisions of this Agreement and the Receiving Party shall not plead in\ndefense thereto that there would be an adequate remedy at law.\n11. Non-Publicity: All media releases, public announcements and other disclosures by either Party relating to this\nAgreement or the subject matter hereof, including promotional or marketing material, but excluding\nannouncements intended solely for internal distribution or to meet legal or regulatory requirements, shall be\ncoordinated with and approved by the other Party prior to release. In addition, the Receiving Party shall refrain\nfrom removing, overprinting or defacing any notices of copyright, trademark, logo or other proprietary\nidentifications or notices of confidentiality, from any originals or copies of the Disclosing Party’s Confidential\nInformation.\nIN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by their respective, fully\nauthorized representatives as of the date first written above.\nCalpine Corporation LS Power Equity Advisors, LL.C\nBy: /s/ W. THADDEUS MILLER By: /s/ JAMES BARTLETT\nName: W. Thaddeus Miller Name: James Bartlett\nExecutive Vice President, Chief Legal\nTitle:  Officer & Secretary Title:  President\nDate:  02/19/14 Date:  02/19/14	EX-10.4 exhibit104-confidentiality.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT, DATED FEBRUARY 19, 2014\nEXHIBIT 10.4\nCONFIDENTIALITY AND\nNON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-Disclosure Agreement ("Agreement") is entered into as of February 19, 2014, by and\nbetween Calpine Corporation, a Delaware corporation with its principal executive offices at 717 Texas Avenue, Suite\n1000,\nHouston,\nTexas\n77002\n("Calpine");\nand\nLS\nPower\nEquity\nAdvisors,\nLLC,\na\nDelaware\nlimited\nliability\ncompany,\nwith its principal executive offices at 1700 Broadway, 35th Floor, NY, NY 10019 ("LS Power"), referred to collectively\nas "Parties" and individually as "Party."\nRECITALS\nA.\nThe Parties desire to exchange certain proprietary or confidential information for the purpose of evaluating the\npotential acquisition of certain of Calpine's power generating facilities and other assets (the "Proposed\nTransaction") and\nB.\nThe Parties are willing to provide such information for such purpose in accordance with the terms hereof;\nNOW, THEREFORE, Calpine and LS Power do hereby mutually agree as follows:\n1. Definitions.\na.\n"Confidential Information" shall mean all confidential or proprietary written, recorded, electronic or oral\ninformation or data (including without limitation research, developmental, engineering, manufacturing,\ntechnical, marketing, sales, financial, operating, performance, cost, business and process information or\ndata, trade secrets, discoveries, ideas, designs, data, source code, object code, processes, computer\nprograms, developments, flow diagrams, know-how, and computer programming and other software and\nsoftware techniques) provided (whether such confidentiality or proprietary status is indicated orally or in\nwriting,\nwhether\nor\nnot\nthe\nspecific\nwords\n"confidential"\nor\n"proprietary"\nare\nused)\nto\na\nParty\n(the\n"Receiving Party") by the other Party (the "Disclosing Party") in the course of the exchange of such\ninformation or data between the Parties. Without limiting the aforesaid, the existence of discussions\nbetween the Parties regarding the Proposed Transaction shall constitute Confidential Information\nhereunder.\nb.\n"Person" shall be broadly interpreted to include, without limitation, any corporation, company,\npartnership, other entity or individual.\nC.\n"Representatives" shall mean as to any Person, its directors, officers, employees, agents and advisors\n(including without limitation, financial advisors, attorneys and accountants).\n2.\nConfidentiality. and Non-Use. In consideration of each Party's providing Confidential Information, the Parties\nagree as follows:\n1\na.\nThe Receiving Party shall hold confidential and not disclose to any Person, without the prior written\nconsent of the Disclosing Party, all Confidential Information and any information about the Proposed\nTransaction, or the terms or conditions or any other facts relating thereto, including, without limitation,\nthe fact that discussions are taking place with respect thereto or the status thereof, or the fact that\nConfidential\nInformation\nhas\nbeen\nmade\navailable\nto\nthe\nReceiving\nParty\nor\nits\nRepresentatives;\nprovided,\nhowever, that the Receiving Party may disclose such Confidential Information to its Representatives who\nare actively and directly participating in its evaluation of the Proposed Transaction or who otherwise need\nto know the Confidential Information for the purpose of evaluating the Proposed Transaction;\nb.\nThe Receiving Party shall cause all its Representatives to observe the terms of this Agreement and shall\nbe responsible for any breach of the terms of this Agreement by it or its Representatives; and\nC.\nThe Receiving Party shall return or destroy all Confidential Information (including all copies thereof)\nwithin thirty (30) days of receipt of a written request.\nIn addition to the foregoing, the Receiving Party will not use the Confidential Information (a) in any way\ndetrimental to the Disclosing Party's shareholders or (b) for any purpose other than in connection with the\nProposed Transaction between the Parties.\n3.\nExceptions to the Confidentiality and Non-Use Obligations. The obligations imposed by Section 2 hereof shall\nnot apply, or shall cease to apply, to any Confidential Information if or when, but only to the extent that, such\nConfidential Information:\na.\nwas known to the Receiving Party prior to the receipt of the Confidential Information; or\nb.\nwas, or becomes through no breach of the Receiving Party's obligations hereunder, known to the public;\nor\nC.\nbecomes known to the Receiving Party from sources other than the Disclosing Party under circumstances\nnot involving any breach of any confidentiality obligation; or\nd.\nis independently developed by the Receiving Party, as evidenced by the written records thereof.\nIt shall not be a breach of the confidentiality obligations hereof for a Receiving Party to disclose Confidential\nInformation where, but only to the extent that, such disclosure is required by law or applicable legal process\nprovided in such case the Receiving Party shall (i) give the earliest notice possible to the Disclosing Party that\nsuch disclosure is or may be required and (ii) reasonably cooperate in protecting such confidential or proprietary\nnature of the Confidential Information which must SO be disclosed.\n2\n4.\nNo Further Agreements Hereunder. Neither Calpine nor LS Power or any parent, subsidiary or affiliate thereof,\nshall be under any obligation to enter into any further agreements with the other signatory hereto or its parents,\nsubsidiaries or affiliates of any nature whatsoever as a result of this Agreement. The Parties shall be free at all\ntimes to hold negotiations or enter into agreements with any other persons whatsoever (including with respect to\nprojects under discussion by the Parties hereto) in addition to or in lieu of the discussions hereunder and any such\nactivities\nshall\nnot\nbe\na\nbreach\nof\nthis\nagreement\nor\nany\nobligations\nowed\nto\nthe\nother\nParty\nhereunder.\nEach\nParty\nhereto reserves the right, in its sole discretion, to decline, to retract or to reject at any time any proposal which\nhas not yet become legally binding by execution of a written agreement between the Parties with respect thereto,\nor with respect to any further agreements or business arrangements with the other Party hereto, its parents,\nsubsidiaries or affiliates and to terminate all further discussions and negotiations.\n5.\nNo Representations and Warranties. Each of the Parties make no representation or warranties, express or implied,\nof any kind to the other Party with respect to the Confidential Information, including without limitation with\nrespect to the accuracy or completeness thereof. Any representations or warranties shall be made thereby, if at all,\nonly in definitive written agreements that may be entered into hereafter.\n6.\nTermination; Duration of Obligations. Unless sooner terminated by mutual written Agreement of the Parties\nhereto, this Agreement and the obligations hereunder shall terminate one (1) year from the date hereof.\n7.\nEntire Agreement. This Agreement represents the entire understanding and agreement of the Parties and\nsupersedes all prior communications, agreements and understandings between the Parties relating to the subject\nmatter hereof.\n8.\nWaivers; Amendments; Assignment; Counterparts. This Agreement may not be modified, amended or waived\nexcept by a written instrument duly executed by both Parties. No failure or delay by either Party in exercising any\nright, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\nThis Agreement may not be assigned by either Party without the prior written consent of the other and shall be\nbinding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be\nsigned in two or more counterpart originals, each of which shall constitute an original document. The Parties\nagree that this Agreement can be executed via facsimile signatures and be binding.\n9.\nGoverning- Law; Disputes. This Agreement is made subject to and shall be construed under the laws of the State\nof New York, without giving effect to its principles or rules regarding conflicts of laws, and that the state and\nfederal courts situated in the State of New York shall have exclusive jurisdiction to resolve any disputes with\nrespect to this Agreement or the Confidential Information with each Party irrevocably consenting to the\njurisdiction thereof for any actions, suits or proceedings arising out of or relating to this Agreement or the\nConfidential Information, and each Party irrevocably waives its rights to jury trials with respect thereto.\n3\n10.\nRemedies. Without prejudice to the rights and remedies otherwise available to either Party, each Party shall be\nentitled to equitable relief by way of injunction or otherwise if the Receiving Party or any of its Representatives\nbreach or threaten to breach any of the provisions of this Agreement and the Receiving Party shall not plead in\ndefense thereto that there would be an adequate remedy at law.\n11.\nNon-Publicity: All media releases, public announcements and other disclosures by either Party relating to this\nAgreement or the subject matter hereof, including promotional or marketing material, but excluding\nannouncements intended solely for internal distribution or to meet legal or regulatory requirements, shall be\ncoordinated with and approved by the other Party prior to release. In addition, the Receiving Party shall refrain\nfrom removing, overprinting or defacing any notices of copyright, trademark, logo or other proprietary\nidentifications or notices of confidentiality from any originals or copies of the Disclosing Party's Confidential\nInformation.\nIN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by their respective, fully\nauthorized representatives as of the date first written above.\nCalpine Corporation\nLS Power Equity Advisors, LLC\nBy:\n/s/ W. THADDEUS MILLER\nBy:\n/s/ JAMES BARTLETT\nName: W. Thaddeus Miller\nName:\nJames Bartlett\nExecutive Vice President, Chief Legal\nTitle:\nOfficer & Secretary\nTitle:\nPresident\nDate:\n02/19/14\nDate:\n02/19/14\n4	EX-10 .4 5 exhibit104-confidentiality.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT, DATED FEBRUARY 19, 2014\nEXHIBIT 10.4\nCONFIDENTIALITY AND\nNON-DISCLOSURE AGREEMENT\nThis Confidentiality and Non-Disclosure Agreement (“Agreement”) is entered into as of February 19, 2014, by and\nbetween Calpine Corporation, a Delaware corporation with its principal executive offices at 717 Texas Avenue, Suite\n1000, Houston, Texas 77002 ("Calpine"); and LS Power Equity Advisors, LLC, a Delaware limited liability company,\nwith its principal executive offices at 1700 Broadway, 35\nth Floor, NY, NY 10019 (“LS Power”), referred to collectively\nas "Parties" and individually as "Party."\nRECITALS\nA.\nThe Parties desire to exchange certain proprietary or confidential information for the purpose of evaluating the\npotential acquisition of certain of Calpine’s power generating facilities and other assets (the “Proposed\nTransaction”); and\nB.\nThe Parties are willing to provide such information for such purpose in accordance with the terms hereof;\nNOW, THEREFORE, Calpine and LS Power do hereby mutually agree as follows:\n1. Definitions.\na.\n"Confidential Information" shall mean all confidential or proprietary written, recorded, electronic or oral\ninformation or data (including without limitation research, developmental, engineering, manufacturing,\ntechnical, marketing, sales, financial, operating, performance, cost, business and process information or\ndata, trade secrets, discoveries, ideas, designs, data, source code, object code, processes, computer\nprograms, developments, flow diagrams, know-how, and computer programming and other software and\nsoftware techniques) provided (whether such confidentiality or proprietary status is indicated orally or in\nwriting, whether or not the specific words "confidential" or "proprietary" are used) to a Party (the\n“Receiving Party”) by the other Party (the “Disclosing Party”) in the course of the exchange of such\ninformation or data between the Parties. Without limiting the aforesaid, the existence of discussions\nbetween the Parties regarding the Proposed Transaction shall constitute Confidential Information\nhereunder.\nb.\n“Person” shall be broadly interpreted to include, without limitation, any corporation, company,\npartnership, other entity or individual.\nc.\n“Representatives” shall mean as to any Person, its directors, officers, employees, agents and advisors\n(including, without limitation, financial advisors, attorneys and accountants).\n2.\nConfidentiality and Non-Use. In consideration of each Party's providing Confidential Information, the Parties\nagree as follows:\n1\na.\nThe Receiving Party shall hold confidential and not disclose to any Person, without the prior written\nconsent of the Disclosing Party, all Confidential Information and any information about the Proposed\nTransaction, or the terms or conditions or any other facts relating thereto, including, without limitation,\nthe fact that discussions are taking place with respect thereto or the status thereof, or the fact that\nConfidential Information has been made available to the Receiving Party or its Representatives; provided,\nhowever, that the Receiving Party may disclose such Confidential Information to its Representatives who\nare actively and directly participating in its evaluation of the Proposed Transaction or who otherwise need\nto know the Confidential Information for the purpose of evaluating the Proposed Transaction;\nb.\nThe Receiving Party shall cause all its Representatives to observe the terms of this Agreement and shall\nbe responsible for any breach of the terms of this Agreement by it or its Representatives; and\nc.\nThe Receiving Party shall return or destroy all Confidential Information (including all copies thereof)\nwithin thirty (30) days of receipt of a written request.\nIn addition to the foregoing, the Receiving Party will not use the Confidential Information (a) in any way\ndetrimental to the Disclosing Party’s shareholders or (b) for any purpose other than in connection with the\nProposed Transaction between the Parties.\n3.\nExceptions to the Confidentiality and Non-Use Obligations. The obligations imposed by Section 2 hereof shall\nnot apply, or shall cease to apply, to any Confidential Information if or when, but only to the extent that, such\nConfidential Information:\na.\nwas known to the Receiving Party prior to the receipt of the Confidential Information; or\nb.\nwas, or becomes through no breach of the Receiving Party's obligations hereunder, known to the public;\nor\nc.\nbecomes known to the Receiving Party from sources other than the Disclosing Party under circumstances\nnot involving any breach of any confidentiality obligation; or\nd.\nis independently developed by the Receiving Party, as evidenced by the written records thereof.\nIt shall not be a breach of the confidentiality obligations hereof for a Receiving Party to disclose Confidential\nInformation where, but only to the extent that, such disclosure is required by law or applicable legal process,\nprovided in such case the Receiving Party shall (i) give the earliest notice possible to the Disclosing Party that\nsuch disclosure is or may be required and (ii) reasonably cooperate in protecting such confidential or proprietary\nnature of the Confidential Information which must so be disclosed.\n2\n4.\nNo Further Agreements Hereunder. Neither Calpine nor LS Power or any parent, subsidiary or affiliate thereof,\nshall be under any obligation to enter into any further agreements with the other signatory hereto or its parents,\nsubsidiaries or affiliates of any nature whatsoever as a result of this Agreement. The Parties shall be free at all\ntimes to hold negotiations or enter into agreements with any other persons whatsoever (including with respect to\nprojects under discussion by the Parties hereto) in addition to or in lieu of the discussions hereunder and any such\nactivities shall not be a breach of this agreement or any obligations owed to the other Party hereunder. Each Party\nhereto reserves the right, in its sole discretion, to decline, to retract or to reject at any time any proposal which\nhas not yet become legally binding by execution of a written agreement between the Parties with respect thereto,\nor with respect to any further agreements or business arrangements with the other Party hereto, its parents,\nsubsidiaries or affiliates and to terminate all further discussions and negotiations.\n5.\nNo Representations and Warranties. Each of the Parties make no representation or warranties, express or implied,\nof any kind to the other Party with respect to the Confidential Information, including without limitation with\nrespect to the accuracy or completeness thereof. Any representations or warranties shall be made thereby, if at all,\nonly in definitive written agreements that may be entered into hereafter.\n6.\nTermination; Duration of Obligations. Unless sooner terminated by mutual written Agreement of the Parties\nhereto, this Agreement and the obligations hereunder shall terminate one (1) year from the date hereof.\n7.\nEntire Agreement. This Agreement represents the entire understanding and agreement of the Parties and\nsupersedes all prior communications, agreements and understandings between the Parties relating to the subject\nmatter hereof.\n8.\nWaivers; Amendments; Assignment; Counterparts. This Agreement may not be modified, amended or waived\nexcept by a written instrument duly executed by both Parties. No failure or delay by either Party in exercising any\nright, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise\nthereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.\nThis Agreement may not be assigned by either Party without the prior written consent of the other and shall be\nbinding on, and inure to the benefit of, the respective successors of the Parties thereto. This Agreement may be\nsigned in two or more counterpart originals, each of which shall constitute an original document. The Parties\nagree that this Agreement can be executed via facsimile signatures and be binding.\n9.\nGoverning Law; Disputes. This Agreement is made subject to and shall be construed under the laws of the State\nof New York, without giving effect to its principles or rules regarding conflicts of laws, and that the state and\nfederal courts situated in the State of New York shall have exclusive jurisdiction to resolve any disputes with\nrespect to this Agreement or the Confidential Information with each Party irrevocably consenting to the\njurisdiction thereof for any actions, suits or proceedings arising out of or relating to this Agreement or the\nConfidential Information, and each Party irrevocably waives its rights to jury trials with respect thereto.\n3\n10. Remedies. Without prejudice to the rights and remedies otherwise available to either Party, each Party shall be\nentitled to equitable relief by way of injunction or otherwise if the Receiving Party or any of its Representatives\nbreach or threaten to breach any of the provisions of this Agreement and the Receiving Party shall not plead in\ndefense thereto that there would be an adequate remedy at law.\n11. Non-Publicity: All media releases, public announcements and other disclosures by either Party relating to this\nAgreement or the subject matter hereof, including promotional or marketing material, but excluding\nannouncements intended solely for internal distribution or to meet legal or regulatory requirements, shall be\ncoordinated with and approved by the other Party prior to release. In addition, the Receiving Party shall refrain\nfrom removing, overprinting or defacing any notices of copyright, trademark, logo or other proprietary\nidentifications or notices of confidentiality, from any originals or copies of the Disclosing Party’s Confidential\nInformation.\nIN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by their respective, fully\nauthorized representatives as of the date first written above.\nCalpine Corporation\nLS Power Equity Advisors, LLC\nBy:\n/s/ W. THADDEUS MILLER\nBy:\n/s/ JAMES BARTLETT\nName: W. Thaddeus Miller\nName: James Bartlett\nTitle:\nExecutive Vice President, Chief Legal\nOfficer & Secretary\nTitle:\nPresident\nDate: 02/19/14\nDate:\n02/19/14\n4
+a373847e741d0b4db97466b8964a66ae.pdf	effective_date jurisdiction party term	EX-10.1 2 d634197dex101.htm EX-10.1\nExhibit 10.1\nLOGO\nDavid N. Farr\nChairman and\nChief Executive Officer\nEmerson\n8000 West Florissant Avenue.\nP.O . Box 4100\nSt. Louis, MO 63136-8506\nUSA\nEdward L. Monser\n8000 West Florissant Ave.\nSt. Louis, MO 63136\nDear Ed:\nOn behalf of the entire Emerson organization, I want to congratulate you on your 37+ years of dedicated service, insights and passion to create a better\nEmerson. Thank you for your significant contributions to the tremendous success of Emerson. Your accomplishments and support of me, the Board of\nDirectors and Emerson shareholders have been extraordinary and very much appreciated. This Letter Agreement (“Agreement”) sets out the terms of\nyour retirement, including your resignation as an employee and officer of Emerson Electric Co. Throughout this Agreement, the term “Emerson” means\nEmerson Electric Co. together with any and all other entities owned directly or indirectly, in whole or in part, by Emerson Electric Co. Your retirement\nand the terms of this Agreement are effective as of October 1, 2018 (“Retirement Date”).\nIn consideration of good and valuable consideration provided to you pursuant to this Agreement, you agree as follows:\n1. NON-DISCLOSURE AGREEMENT\nYou agree that during your employment you have received and had access to Emerson’s trade secrets and confidential and proprietary information\n(“Confidential Information”), which includes or concerns, but is not limited to, attorney/client communications, global strategic communications,\ninformation pertaining to strategic planning or other strategy, mergers and acquisitions, corporate technology, intellectual property, customers, pricing,\nbusiness methods and operations, business policies, procedures, practices and techniques, legal opinions and legal matters, research or development\nprojects or results, sales, finances, products, suppliers, personnel performance and compensation, plans for future development, marketing practices,\nmarket participation, market studies, and financial forecasts and budgeting. You agree that disclosure of such Confidential Information would be\ndetrimental to Emerson and agree that at no time following termination of your employment with Emerson will you directly or indirectly disclose or\ncause the disclosure of any Confidential Information to any person, firm, corporation, or entity, no matter what the purpose. You further agree that you\nwill not directly or indirectly disclose the terms of this Agreement to any person except as authorized specifically herein.\nThe non-disclosure obligations set forth above shall not apply to the extent it is necessary for you to: report income to taxing authorities; communicate\nwith your attorneys or agents to obtain legal and/or financial planning advice after any such attorneys or agents bind themselves in writing to the same\nnon-disclosure obligations as set forth above; or, to respond to any lawfully issued subpoena or order of a court of competent jurisdiction or legitimate\ndiscovery request pursuant to state or federal rules of civil procedure. If any such subpoena, order of court or discovery request is received, you agree to\nsend to Emerson’s General Counsel no later than two days after receipt via email to sara.bosco@emerson.com or via hand-delivery.\nYou agree also to deliver to the office of Emerson’s General Counsel within a three day period following the Retirement Date all such Confidential\nInformation, any other property of Emerson, and all copies thereof in your possession or control, whether in handwritten, typed, printed, graphic or\nelectronic form (whether stored on Emerson-owned or personally owned or used devices, including but not limited to personal computers, tablets, smart\nphones, memory sticks, thumb drives, or on-site or off-site storage locations). If after such three-day period you determine that you have any\nConfidential Information or other property of Emerson in your possession or control, you shall immediately deliver such Confidential Information or\nproperty to the office of Emerson’s General Counsel. You further agree to deliver your signed certification of compliance with the provisions of this\nparagraph promptly upon request made to you in writing by Emerson’s General Counsel.\n2. NON-DISPARAGEMENT AGREEMENT\nYou will not individually or through third-parties make any public or private statement with respect to any aspect of your employment with Emerson,\nyour retirement, or the terms of this Agreement. If inquiry is made by anyone regarding your employment by, or retirement from, Emerson, you agree to\nstate only “I have retired from Emerson effective October 1, 2018. I personally decided to retire, and I have enjoyed my many years with Emerson.\nEmerson is a tremendous company and I wish it well.”\nYou also agree that you will not, directly or indirectly, disparage or make or cause to be made, any comments, statements, or communications of any sort\nto anyone—whether true or false— that may reasonably be considered to be derogatory or detrimental to Emerson or any Released Parties (as defined in\nthe Release Agreement attached as Exhibit A), their reputations, or their services. You acknowledge that Emerson has a good reputation locally,\nnationally and internationally, and you will take no action or engage in any conduct that could injure or diminish that good reputation.\n3. NON-COMPETITION AND NON-SOLICITATION AGREEMENTS\nYou also agree that you will not, without prior written consent from both Emerson’s Chief Executive Officer and General Counsel, directly or indirectly\nfor a period of five years from your Retirement Date (“Restricted Period”):\n(a) enter the employ of, provide consulting services to, assist, or have any financial interest in, any person, firm, corporation, or other entity\nengaged in business activities anywhere in the world that directly or indirectly competes with the businesses of Emerson as conducted on the date of this\nAgreement or as contemplated on the date hereof to be developed during the Restricted Period;\n(b) acquire in any manner any investment in, or provide services to in any capacity, any equity fund, hedge fund, or other investment vehicle,\nhowever structured, that either directly or indirectly or through portfolio company investments or otherwise competes with the businesses of Emerson as\nconducted on the date hereof or as contemplated on the date hereof to be developed during the Restrictive Period;\n2\n(c) assist any third party in connection with any acquisition of any business of Emerson, whether through an acquisition or stock or assets or\notherwise, or in the sale of any business to Emerson;\n(d) assist any third party in connection with any attempt to assert control over or influence the management of Emerson, whether through the\nacquisition or stock by such third party, addition of board members recommended by such third party, a proxy solicitation by such third party or\notherwise;\n(e) accept or solicit business from or attempt to solicit or accept business from any person that is a customer of Emerson;\n(f) divert, take any action to induce, or encourage a customer of Emerson to reduce or cease doing business with Emerson;\n(g) solicit, hire, or attempt to solicit or hire any person that currently or during the Restricted Period is an employee, agent or consultant of\nEmerson to leave such employment or separate his or her relationship with Emerson or induce any such person to do anything which you are restricted\nfrom doing by reason of this Agreement; or\n(h) engage in any other action that might undermine the business interests of Emerson.\nThe foregoing shall not restrict you from owning not more than five percent of the securities of any competitor of Emerson that is listed on any national\nsecurities exchange, traded over-the- counter, or that is otherwise available for investment by the general public as long as you have no relationship with\nthe issuer of such securities or any affiliate thereof, except as an investor.\n4. REASONABLENESS ENFORCEABILITY AND LIQUIDATED DAMAGES\nYou agree that the restrictions contained in Paragraph 3, including those on time and scope, are reasonable for the protection of Emerson in light of your\nin-depth knowledge of Emerson’s global business, your present and prior positions with Emerson, and your access to Confidential Information relating\nto all of Emerson’s businesses. You also affirm your agreement to comply with all existing non-competition, invention disclosure and assignment,\nnon-disclosure and non-solicitation obligations you have with Emerson, including specifically your obligations under the Emerson Incentive Shares\nplans and related performance shares and restricted stock award agreements, and Emerson stock option plans and related option agreements, and\nEmerson non-qualified supplemental executive retirement plan participation. You agree that your obligations set forth in this Agreement are in addition\nto and do not invalidate or supersede your obligations under other plans, agreements or contracts unless in direct conflict, in which case the terms of this\nAgreement shall prevail.\nYou agree and acknowledge that Emerson would not enter into this Agreement and provide the valuable consideration offered to you herein but for the\nrestrictions in this Agreement. You agree that a violation of this Agreement and the other agreements referenced in this Section 4 would result in\nirreparable injury to Emerson and that, in the event of a violation or a reasonably perceived threatened violation of any of the aforementioned\nrestrictions, Emerson shall be entitled to immediate, preliminary and permanent injunctive relief which is in addition to any other remedies to which\nEmerson may be entitled. You further agree to reimburse Emerson for all costs, expenses and reasonable attorneys’ fees Emerson incurs to seek\nenforcement of any provision contained herein, whether or not litigation is commenced.\n3\nYou agree that any breach of this Agreement will result in immediate forfeiture by you of all payments to be made or benefits provided to you under this\nAgreement. You also agree as liquidated damages for any such breach to repay to Emerson one-half of the economic value of all benefits provided to\nyou under this Agreement prior to the date of breach. You agree that this liquidated damage provision and other remedies are necessary because\nsubstantial damage will accrue to Emerson as the result of a breach, and the amount of damages attributable to such breach may be uncertain and\ndifficult to calculate. Payment of liquidated damages shall in no way affect the settlement and release of claims by you, nor shall payment of liquidated\ndamages limit the enforceability of any clause in this Agreement or any other agreement referenced in this Section 4 or the ability of Emerson to seek\ndamages and any other relief from you as provided under applicable law or any agreement between you and Emerson.\n5. RELEASE AND DISCHARGE\nYou will release and discharge Emerson and its respective Directors, officers, employees and agents from any and all claims or liability of whatever\nnature and will execute on your Retirement Date the Release Agreement attached hereto as Exhibit A. If the Release Agreement attached as Exhibit A is\nnot executed by you, this Agreement shall be null and void. You also agree that no benefits or other compensation described in this Agreement (other\nthan the payment of your base salary described in Section 8.A . hereof, shall be paid or provided to you until expiration of the seven-day revocation\nperiod set forth in Paragraph 3(e) of the Release Agreement.\n6. RESIGNATIONS\nYou agree to execute the Officer Resignation Form attached hereto as Exhibit B, effective as of October 1, 2018.\n7. CLAWBACK\nYou agree that you will remain subject to Emerson’s Clawback Policy, which provides: “If the Board determines that an executive officer has engaged in\nintentional misconduct that caused or partially caused a material restatement of the Company’s consolidated financial statements, the Board may, to the\nextent permitted by law and to the extent it determines that it is in the Company’s best interests to do so, require reimbursement to the Company of, or\nreduce or cancel, that portion of annual incentive or any long-term incentive compensation paid or credited to such executive officer on or after\nFebruary 1, 2015 that would not have been paid or credited had the consolidated financial statements that are the subject of such restatement been\ncorrectly stated. For purposes of this policy, the term “executive officer” means any officer of the Company who is required to file reports pursuant to\nSection 16 of the Securities Exchange Act of 1934.”\n8. COMPENSATION AND BENEFITS\nSubject to and conditioned upon your compliance with your obligations and covenants in this Agreement and any other agreement entered into between\nyou and Emerson, you will receive the compensation and benefits outlined below. The compensation and benefits set forth herein are in lieu of and\nreplace any other compensation or benefits to which you may be entitled from Emerson:\nA. You will remain on the Emerson payroll and receive your current base salary through your retirement date.\nB. You will remain eligible to participate in the Fiscal 2018 Emerson Electric Extra Salary Program under the same terms and conditions as\nother participants in the Program. We will recommend to the Compensation Committee that you receive a payment under the Program for Fiscal 2018\nand subject to their approval, payment will be made consistent with prior practices.\n4\nC. You may continue coverage under the former split dollar and group universal life policies owned by you through your retirement date. After\nyour retirement, you may continue coverage under such policies at your own expense, subject to the terms of the underlying policies.\nD. Your executive perquisites, including leased automobile, club dues, executive physical and financial tax planning, will end on the Retirement\nDate, unless noted otherwise below:\ni. You may complete your 2018 calendar year tax return under the executive financial tax planning program, subject to the normal terms and\nconditions of the program.\nii. Under the normal terms and conditions of the program, you will be required to return or purchase at its fair market value, your company\nautomobile within thirty (30) days following your retirement date.\nE. In accordance with the terms of the applicable Emerson stock option plans, and as approved by the Compensation Committee of the Board of\nDirectors, all of your outstanding options will be exercisable for a period of up to five (5) years after the Retirement Date, but no longer than the original\nexpiration date of the option.\nF. The Compensation Committee has determined that you will remain eligible to receive payment of your outstanding Performance Shares\nawards, subject to the other applicable terms of Emerson’s Incentive Shares Plans and the applicable Performance Shares Program which apply to all\nparticipants, including achievement of the performance objectives under each Program, and based on the actual payout percentage applicable to each\nProgram, and at the time provided therefor under the respective programs, as follows:\ni. You will remain eligible to receive a full payout under the 2016 and 2017 Performance Shares Programs.\nii. You will remain eligible to receive up to a 50% pro-rata payment under the 2018 Performance Shares Program.\nG. Pursuant to the terms of Emerson’s Incentive Shares Plans, the Compensation Committee has determined that your award of restricted shares\nwill continue to vest as specified in the original award document and be payable to you upon the vesting date of the award (November 1, 2019), and that\nyou will continue to receive dividends on the restricted share award to the extent provided in the original award agreement.\nH. Pursuant to the terms and conditions of the qualified all-employee Emerson Electric Co. Retirement Plan, you will be eligible to receive your\nmonthly pension benefits accrued under such plan as of the Retirement Date. Pursuant to the terms and conditions of the related Emerson Electric Co.\nPension Restoration Plan (the non-qualified supplemental executive retirement plan which covers the benefits you would have been eligible to receive\nunder the aforesaid all-employee Retirement Plan were it not for the compensation limitations imposed under the Internal Revenue Code (“Code”)), you\nwill also be eligible to receive your monthly pension benefits accrued as of your Retirement Date under such plan. Payment of your accrued benefits\nunder the non-qualified supplemental executive retirement plan which are not “grandfathered” under Section 409A of the Code shall be deferred to the\nextent required by Code Section 409A. Payments of your pension benefits under each of the aforesaid plans will be paid monthly in the manner and\ntimes set forth in such plans, subject to the terms and conditions of such plans.\n5\nI. You will be eligible to receive distributions from your Emerson Electric Co. Employee Savings Investment Plan (401(k) plan) to the extent\npermitted under the terms of the plan and applicable law. You will be eligible to receive distributions under the Emerson Electric Co. Savings\nInvestment Restoration Plan (non-qualified 401(k) plan), subject to the provisions of the plan and your distribution elections thereunder. Distributions\nfrom these plans which are not “grandfathered” under Section 409A of the Code shall be deferred to the extent required by Code Section 409A.\nJ. All payments and other benefits provided for under this Agreement, including but not limited to any performance shares program payouts,\nvesting of restricted stock, or shares of stock issued to you upon exercise of your stock options, will be subject to income tax and other withholdings as\nrequired by law.\nK. Except as provided for specifically above, after the Retirement Date you will not be permitted to continue participating in any Emerson\nbenefit or compensation programs including, but not limited to, the qualified and non-qualified 401(k) plans and the disability insurance program.\nL. Notwithstanding any other provisions of this Agreement, if at any time after the Restricted Period you engage in an activity in which you are\nprohibited from engaging hereunder during the Restricted Period, Emerson shall be relieved of all, and shall have no further, obligations to provide the\npayments or benefits specified in this Section 8 (unless otherwise required by law).\nThis Agreement is deemed to be entered in the State of Missouri and, without regard to conflict of laws principles, shall be interpreted in accordance\nwith and governed by the laws of the State of Missouri. Emerson and you agree that any legal action or proceeding with respect to this Agreement shall\nbe brought and determined in the courts of the County of St. Louis, State of Missouri or of the United States of America for the Eastern District of\nMissouri and that you submit to the jurisdiction of such courts with respect to any such action or proceeding.\nYou acknowledge that Emerson has advised you to consult with an attorney if you need assistance in reviewing or understanding this Agreement or any\nof the documents referenced in this Agreement, including the Release Agreement.\n6\nPlease confirm that the foregoing represents your understanding of our entire agreement by signing in the space provided below. Once again, I thank you\nfor your many years of dedicated service to Emerson, and I wish you the very best in your retirement.\nSincerely,\n/s/ David N. Farr\nDavid N. Farr\nChairman & Chief Executive Officer\nACCEPTED AND AGREED TO THIS 2nd\nDAY OF (Month/Year) October 2018\n/s/ Edward L. Monser\nEdward L. Monser\n7\nEXHIBIT A – RELEASE AGREEMENT\nThis Release Agreement is Exhibit A to that certain Letter Agreement by and between Emerson Electric Co. (“Employer”) and Edward L. Monser\n(“Employee”) dated October 1, 2018 the (“Letter Agreement”). In consideration of the mutual promises and covenants contained in the Letter\nAgreement and herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby\nagree as follows:\n1. Employment. Employee was previously employed by Employer. The employment of Employee with Employer has ended as a result of\nEmployee’s retirement from Employer effective October 1, 2018.\n2. Release. For and in consideration of the covenants, terms and conditions set forth in the Letter Agreement and this Release Agreement,\nEmployee, for himself and his heirs, to the fullest extent permitted by law, agrees to and does hereby waive, covenant not to sue, releases, and forever\ndischarges Employer, and each and every one of Employer’s parent, subsidiary and other affiliated entities (the “Emerson Entities”), and their respective\nagents, employees, officers, directors, stockholders, managers, members, successors, predecessors, contractors, attorneys, external counsel, agents and\nassigns (collectively referred to as “Released Parties”), from and with respect to all matters, claims, charges, demands, damages, causes of action, debts,\nliabilities, controversies, judgments, and suits of every kind and nature whatsoever, foreseen or unforeseen, known or unknown, arising prior to the date\nthis Release Agreement becomes effective and including, but not limited to, those in any way related to Employee and/or Employee’s separation from\nemployment. This release by Employee of Released Parties expressly includes, but is not limited to, any claim or cause of action against Released\nParties related to or arising out of tort, contract, equity, implied covenant, invasion of privacy, defamation, personal injury, wrongful discharge,\nemotional distress, discrimination (whether based on race, sex, age, color, national origin, religion, disability, or any other class protected by law),\nharassment, retaliation, claims for workers’ compensation benefits, claims for unpaid wages, any claim under the Age Discrimination in Employment\nAct, 29 U.S.C . §621 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C . §2000e et seq., the Civil Rights Act of 1866, 42 U.S.C . §1981, the\nAmericans With Disabilities Act, 42 U.S.C . §12101, et seq., the Employee Retirement Income Security Act of 1974, 29 U.S.C . §1001, et seq., the\nFamily Medical Leave Act, 29 U.S.C . §2601 et seq., the Fair Labor Standards Act of 1938, 29 U.S.C . §201 et seq., the Missouri Human Rights Act, Mo.\nRev. Stat. §213.010 et seq.; the Missouri Equal Pay for Women Act, Mo. Rev. Stat. §290.400 et seq., the Missouri Service Letter statute Mo. Rev. Stat.\n§290.14, the Missouri Minimum Wage Law, Mo. Rev. Stat. §290.010 et seq., the Missouri Wage Payment Law, Mo. Rev. Stat. §290.010 et seq., any\nclaim under common law, and any claim under any federal, state or local statute, regulation, constitution, order or executive order. This release also\nexpressly includes, but is not limited to, any claim for attorneys’ fees or costs. Employee affirms and warrants that he has made no charge, claim,\ncomplaint, or otherwise initiated action against Employer in any government agency, court or other forum and that no such matter is pending. Employee\nfurther affirms and warrants that Employee has not been retaliated against for reporting, or taking any actions, pertaining to allegations of wrongdoing\nby Employer or its officers and employees. Employee avers and agrees that he has no personal knowledge of any employee, officer or director of\nEmployer engaging in any act related to the performance of their duties at or for Employer, which Employee knows or believes to be illegal and\nEmployee acknowledges that he has never complained of any unlawful conduct by Employer. Employee hereby releases and relinquishes any and all\nrights to employment, reinstatement and any right to future employment with Employer or the Emerson Entities. Employee also waives and\nA-1\nreleases any right or ability to be a class or collective action representative or to otherwise participate in any putative or certified class, collective or\nmulti- party action or proceeding based on a claim in which Employer or any one or more Released Parties is a party. Notwithstanding the foregoing,\nEmployee is not waiving any right to enforce any term or provision of the Letter Agreement, or any claims solely relating to the validity of this Release\nAgreement under the Age Discrimination in Employment Act.\n3. Waiver of ADEA Rights. By execution of this Release Agreement, Employee expressly waives any and all rights or claims arising under the\nAge Discrimination in Employment Act of 1967 (“ADEA”) and\n(a) Employee has read this Agreement, and the Letter Agreement, in their entirety and understands all of their terms; and\n(b) Employee acknowledges and agrees that the waiver of his rights or claims arising under the ADEA is in exchange for the consideration\nprovided in the Letter Agreement which, Employee agrees, is beyond that to which Employee is otherwise entitled; and\n(c) Employee acknowledges that Employer has, and does, hereby expressly advise him to consult with an attorney of his choosing, at his\nown expense, prior to executing this Release Agreement and the Letter Agreement; and\n(d) Employee agrees that he has been given a period of not less than forty- five (45) days from receipt of this document within which to\nconsider this Release Agreement and the Letter Agreement, and that if Employee elects to sign this Release Agreement prior to the expiration of\nthe 45-day consideration period specified herein, he does so knowingly and voluntarily and with full opportunity to consult with an attorney; and\n(e) Employee acknowledges he has been advised by Employer that he is entitled to revoke this Release Agreement (in the event he\nexecutes this Release Agreement) within seven (7) days after executing it and that this Agreement will not and does not become effective or\nenforceable until the seven (7) day revocation period has expired; and\n(f) The parties agree that should Employee exercise his right to revoke the waiver under this paragraph 3, this entire Release Agreement\nand Letter Agreement, and their obligations, are null and void and of no effect and, notwithstanding any other provision of this Release Agreement\nor the Letter Agreement to the contrary, no payment or other consideration shall be due, owing, paid or provided until the seven (7) day revocation\nperiod has expired without revocation by Employee. Notice of Employee’s decision to revoke the waiver may be sent to Emerson’s Senior Vice\nPresident, Secretary and General Counsel by fax (at 314-553-3205), email to sara.bosco@emerson.com or hand-delivery.\n4. Remedies. Without limiting the remedies available to Employer for any breach of this Release Agreement, Employee agrees that any breach\nof either this Release Agreement or the Letter Agreement will result in immediate forfeiture of any future payments to be made to, or benefits to be\nprovided to, Employee and all other remedies and relief as specifically set forth further in the Letter Agreement shall be available to Employer.\n5. Successors and Assigns. This Release Agreement binds, and inures to the benefit of, the parties’ respective heirs, administrators,\nrepresentatives, executors, successors, and assigns.\nA-2\n6. Review by Employee. Employee acknowledges that he has read the provisions of this Release Agreement, that Employee was advised of his\nright to review this Release Agreement with an attorney at his expense, and that Employee fully understands the meaning and intent of this Release\nAgreement and agrees to all of its terms.\nEMPLOYEE\n/s/ Edward L. Monser\nEdward L. Monser\nDate: October 2, 2018\nA-3\nEXHIBIT B - OFFICER RESIGNATION\nI, Edward L. Monser, do hereby submit my resignation, effective October 1, 2018, from my position as President of Emerson Electric Co., as well as\nfrom any other positions (if any) I may hold with any subsidiaries or affiliates of Emerson.\n/s/ Edward L. Monser\nEdward L. Monser	EX-10.1 2 d634197dex101.htm EX-10.1\nExhibit 10.1\nDavid N. Farr\nChairman and\nChief Executive Officer\n|#.LOGO Emerson\n8000 West Florissant Avenue.\nP.O. Box 4100\nSt. Louis, MO 63136-8506\nUSA\nEdward L. Monser\n8000 West Florissant Ave.\nSt. Louis, MO 63136\nDear Ed:\nOn behalf of the entire Emerson organization, I want to congratulate you on your 37+ years of dedicated service, insights and passion to create a better\nEmerson. Thank you for your significant contributions to the tremendous success of Emerson. Your accomplishments and support of me, the Board of\nDirectors and Emerson shareholders have been extraordinary and very much appreciated. This Letter Agreement (“Agreement”) sets out the terms of\nyour retirement, including your resignation as an employee and officer of Emerson Electric Co. Throughout this Agreement, the term “Emerson” means\nEmerson Electric Co. together with any and all other entities owned directly or indirectly, in whole or in part, by Emerson Electric Co. Your retirement\nand the terms of this Agreement are effective as of October 1, 2018 (“Retirement Date™).\nIn consideration of good and valuable consideration provided to you pursuant to this Agreement, you agree as follows:\n1. NON-DISCLOSURE AGREEMENT\nYou agree that during your employment you have received and had access to Emerson’s trade secrets and confidential and proprietary information\n(“Confidential Information™), which includes or concerns, but is not limited to, attorney/client communications, global strategic communications,\ninformation pertaining to strategic planning or other strategy, mergers and acquisitions, corporate technology, intellectual property, customers, pricing,\nbusiness methods and operations, business policies, procedures, practices and techniques, legal opinions and legal matters, research or development\nprojects or results, sales, finances, products, suppliers, personnel performance and compensation, plans for future development, marketing practices,\nmarket participation, market studies, and financial forecasts and budgeting. You agree that disclosure of such Confidential Information would be\ndetrimental to Emerson and agree that at no time following termination of your employment with Emerson will you directly or indirectly disclose or\ncause the disclosure of any Confidential Information to any person, firm, corporation, or entity, no matter what the purpose. You further agree that you\nwill not directly or indirectly disclose the terms of this Agreement to any person except as authorized specifically herein.\nThe non-disclosure obligations set forth above shall not apply to the extent it is necessary for you to: report income to taxing authorities; communicate\nwith your attorneys or agents to obtain legal and/or financial planning advice after any such attorneys or agents bind themselves in writing to the same\nnon-disclosure obligations as set forth above; or, to respond to any lawfully issued subpoena or order of a court of competent jurisdiction or legitimate\ndiscovery request pursuant to state or federal rules of civil procedure. If any such subpoena, order of court or discovery request is received, you agree to\nsend to Emerson’s General Counsel no later than two days after receipt via email to sara.bosco@emerson.com or via hand-delivery.\nYou agree also to deliver to the office of Emerson’s General Counsel within a three day period following the Retirement Date all such Confidential\nInformation, any other property of Emerson, and all copies thereof in your possession or control, whether in handwritten, typed, printed, graphic or\nelectronic form (whether stored on Emerson-owned or personally owned or used devices, including but not limited to personal computers, tablets, smart\nphones, memory sticks, thumb drives, or on-site or off-site storage locations). If after such three-day period you determine that you have any\nConfidential Information or other property of Emerson in your possession or control, you shall immediately deliver such Confidential Information or\nproperty to the office of Emerson’s General Counsel. You further agree to deliver your signed certification of compliance with the provisions of this\nparagraph promptly upon request made to you in writing by Emerson’s General Counsel.\n2. NON-DISPARAGEMENT AGREEMENT\nYou will not individually or through third-parties make any public or private statement with respect to any aspect of your employment with Emerson,\nyour retirement, or the terms of this Agreement. If inquiry is made by anyone regarding your employment by, or retirement from, Emerson, you agree to\nstate only “I have retired from Emerson effective October 1, 2018. I personally decided to retire, and I have enjoyed my many years with Emerson.\nEmerson is a tremendous company and I wish it well.”\nYou also agree that you will not, directly or indirectly, disparage or make or cause to be made, any comments, statements, or communications of any sort\nto anyone—whether true or false— that may reasonably be considered to be derogatory or detrimental to Emerson or any Released Parties (as defined in\nthe Release Agreement attached as Exhibit A), their reputations, or their services. You acknowledge that Emerson has a good reputation locally,\nnationally and internationally, and you will take no action or engage in any conduct that could injure or diminish that good reputation.\n3. NON-COMPETITION AND NON-SOLICITATION AGREEMENTS\nYou also agree that you will not, without prior written consent from both Emerson’s Chief Executive Officer and General Counsel, directly or indirectly\nfor a period of five years from your Retirement Date (“Restricted Period”):\n(a) enter the employ of, provide consulting services to, assist, or have any financial interest in, any person, firm, corporation, or other entity\nengaged in business activities anywhere in the world that directly or indirectly competes with the businesses of Emerson as conducted on the date of this\nAgreement or as contemplated on the date hereof to be developed during the Restricted Period;\n(b) acquire in any manner any investment in, or provide services to in any capacity, any equity fund, hedge fund, or other investment vehicle,\nhowever structured, that either directly or indirectly or through portfolio company investments or otherwise competes with the businesses of Emerson as\nconducted on the date hereof or as contemplated on the date hereof to be developed during the Restrictive Period;\n2\n(c) assist any third party in connection with any acquisition of any business of Emerson, whether through an acquisition or stock or assets or\notherwise, or in the sale of any business to Emerson;\n(d) assist any third party in connection with any attempt to assert control over or influence the management of Emerson, whether through the\nacquisition or stock by such third party, addition of board members recommended by such third party, a proxy solicitation by such third party or\notherwise;\n(e) accept or solicit business from or attempt to solicit or accept business from any person that is a customer of Emerson;\n(f) divert, take any action to induce, or encourage a customer of Emerson to reduce or cease doing business with Emerson;\n(g) solicit, hire, or attempt to solicit or hire any person that currently or during the Restricted Period is an employee, agent or consultant of\nEmerson to leave such employment or separate his or her relationship with Emerson or induce any such person to do anything which you are restricted\nfrom doing by reason of this Agreement; or\n(h) engage in any other action that might undermine the business interests of Emerson.\nThe foregoing shall not restrict you from owning not more than five percent of the securities of any competitor of Emerson that is listed on any national\nsecurities exchange, traded over-the- counter, or that is otherwise available for investment by the general public as long as you have no relationship with\nthe issuer of such securities or any affiliate thereof, except as an investor.\n4. REASONABLENESS ENFORCEABILITY AND LIQUIDATED DAMAGES\nYou agree that the restrictions contained in Paragraph 3, including those on time and scope, are reasonable for the protection of Emerson in light of your\nin-depth knowledge of Emerson’s global business, your present and prior positions with Emerson, and your access to Confidential Information relating\nto all of Emerson’s businesses. You also affirm your agreement to comply with all existing non-competition, invention disclosure and assignment,\nnon-disclosure and non-solicitation obligations you have with Emerson, including specifically your obligations under the Emerson Incentive Shares\nplans and related performance shares and restricted stock award agreements, and Emerson stock option plans and related option agreements, and\nEmerson non-qualified supplemental executive retirement plan participation. You agree that your obligations set forth in this Agreement are in addition\nto and do not invalidate or supersede your obligations under other plans, agreements or contracts unless in direct conflict, in which case the terms of this\nAgreement shall prevail.\nYou agree and acknowledge that Emerson would not enter into this Agreement and provide the valuable consideration offered to you herein but for the\nrestrictions in this Agreement. You agree that a violation of this Agreement and the other agreements referenced in this Section 4 would result in\nirreparable injury to Emerson and that, in the event of a violation or a reasonably perceived threatened violation of any of the aforementioned\nrestrictions, Emerson shall be entitled to immediate, preliminary and permanent injunctive relief which is in addition to any other remedies to which\nEmerson may be entitled. You further agree to reimburse Emerson for all costs, expenses and reasonable attorneys’ fees Emerson incurs to seek\nenforcement of any provision contained herein, whether or not litigation is commenced.\n3\nYou agree that any breach of this Agreement will result in immediate forfeiture by you of all payments to be made or benefits provided to you under this\nAgreement. You also agree as liquidated damages for any such breach to repay to Emerson one-half of the economic value of all benefits provided to\nyou under this Agreement prior to the date of breach. You agree that this liquidated damage provision and other remedies are necessary because\nsubstantial damage will accrue to Emerson as the result of a breach, and the amount of damages attributable to such breach may be uncertain and\ndifficult to calculate. Payment of liquidated damages shall in no way affect the settlement and release of claims by you, nor shall payment of liquidated\ndamages limit the enforceability of any clause in this Agreement or any other agreement referenced in this Section 4 or the ability of Emerson to seek\ndamages and any other relief from you as provided under applicable law or any agreement between you and Emerson.\n5. RELEASE AND DISCHARGE\nYou will release and discharge Emerson and its respective Directors, officers, employees and agents from any and all claims or liability of whatever\nnature and will execute on your Retirement Date the Release Agreement attached hereto as Exhibit A. If the Release Agreement attached as Exhibit A is\nnot executed by you, this Agreement shall be null and void. You also agree that no benefits or other compensation described in this Agreement (other\nthan the payment of your base salary described in Section 8.A. hereof, shall be paid or provided to you until expiration of the seven-day revocation\nperiod set forth in Paragraph 3(e) of the Release Agreement.\n6. RESIGNATIONS\nYou agree to execute the Officer Resignation Form attached hereto as Exhibit B, effective as of October 1, 2018.\n7. CLAWBACK\nYou agree that you will remain subject to Emerson’s Clawback Policy, which provides: “If the Board determines that an executive officer has engaged in\nintentional misconduct that caused or partially caused a material restatement of the Company’s consolidated financial statements, the Board may, to the\nextent permitted by law and to the extent it determines that it is in the Company’s best interests to do so, require reimbursement to the Company of, or\nreduce or cancel, that portion of annual incentive or any long-term incentive compensation paid or credited to such executive officer on or after\nFebruary 1, 2015 that would not have been paid or credited had the consolidated financial statements that are the subject of such restatement been\ncorrectly stated. For purposes of this policy, the term “executive officer” means any officer of the Company who is required to file reports pursuant to\nSection 16 of the Securities Exchange Act of 1934.”\n8. COMPENSATION AND BENEFITS\nSubject to and conditioned upon your compliance with your obligations and covenants in this Agreement and any other agreement entered into between\nyou and Emerson, you will receive the compensation and benefits outlined below. The compensation and benefits set forth herein are in lieu of and\nreplace any other compensation or benefits to which you may be entitled from Emerson:\nA. You will remain on the Emerson payroll and receive your current base salary through your retirement date.\nB. You will remain eligible to participate in the Fiscal 2018 Emerson Electric Extra Salary Program under the same terms and conditions as\nother participants in the Program. We will recommend to the Compensation Committee that you receive a payment under the Program for Fiscal 2018\nand subject to their approval, payment will be made consistent with prior practices.\n4\nC. You may continue coverage under the former split dollar and group universal life policies owned by you through your retirement date. After\nyour retirement, you may continue coverage under such policies at your own expense, subject to the terms of the underlying policies.\nD. Your executive perquisites, including leased automobile, club dues, executive physical and financial tax planning, will end on the Retirement\nDate, unless noted otherwise below:\nL. You may complete your 2018 calendar year tax return under the executive financial tax planning program, subject to the normal terms and\nconditions of the program.\nii. ~ Under the normal terms and conditions of the program, you will be required to return or purchase at its fair market value, your company\nautomobile within thirty (30) days following your retirement date.\nE. Inaccordance with the terms of the applicable Emerson stock option plans, and as approved by the Compensation Committee of the Board of\nDirectors, all of your outstanding options will be exercisable for a period of up to five (5) years after the Retirement Date, but no longer than the original\nexpiration date of the option.\nF. The Compensation Committee has determined that you will remain eligible to receive payment of your outstanding Performance Shares\nawards, subject to the other applicable terms of Emerson’s Incentive Shares Plans and the applicable Performance Shares Program which apply to all\nparticipants, including achievement of the performance objectives under each Program, and based on the actual payout percentage applicable to each\nProgram, and at the time provided therefor under the respective programs, as follows:\nL. You will remain eligible to receive a full payout under the 2016 and 2017 Performance Shares Programs.\nii.  You will remain eligible to receive up to a 50% pro-rata payment under the 2018 Performance Shares Program.\nG. Pursuant to the terms of Emerson’s Incentive Shares Plans, the Compensation Committee has determined that your award of restricted shares\nwill continue to vest as specified in the original award document and be payable to you upon the vesting date of the award (November 1, 2019), and that\nyou will continue to receive dividends on the restricted share award to the extent provided in the original award agreement.\nH. Pursuant to the terms and conditions of the qualified all-employee Emerson Electric Co. Retirement Plan, you will be eligible to receive your\nmonthly pension benefits accrued under such plan as of the Retirement Date. Pursuant to the terms and conditions of the related Emerson Electric Co.\nPension Restoration Plan (the non-qualified supplemental executive retirement plan which covers the benefits you would have been eligible to receive\nunder the aforesaid all-employee Retirement Plan were it not for the compensation limitations imposed under the Internal Revenue Code (“Code™)), you\nwill also be eligible to receive your monthly pension benefits accrued as of your Retirement Date under such plan. Payment of your accrued benefits\nunder the non-qualified supplemental executive retirement plan which are not “grandfathered” under Section 409A of the Code shall be deferred to the\nextent required by Code Section 409A. Payments of your pension benefits under each of the aforesaid plans will be paid monthly in the manner and\ntimes set forth in such plans, subject to the terms and conditions of such plans.\n5\nI.  You will be eligible to receive distributions from your Emerson Electric Co. Employee Savings Investment Plan (401(k) plan) to the extent\npermitted under the terms of the plan and applicable law. You will be eligible to receive distributions under the Emerson Electric Co. Savings\nInvestment Restoration Plan (non-qualified 401(k) plan), subject to the provisions of the plan and your distribution elections thereunder. Distributions\nfrom these plans which are not “grandfathered” under Section 409A of the Code shall be deferred to the extent required by Code Section 409A.\nJ. All payments and other benefits provided for under this Agreement, including but not limited to any performance shares program payouts,\nvesting of restricted stock, or shares of stock issued to you upon exercise of your stock options, will be subject to income tax and other withholdings as\nrequired by law.\nK. Except as provided for specifically above, after the Retirement Date you will not be permitted to continue participating in any Emerson\nbenefit or compensation programs including, but not limited to, the qualified and non-qualified 401(k) plans and the disability insurance program.\nL. Notwithstanding any other provisions of this Agreement, if at any time after the Restricted Period you engage in an activity in which you are\nprohibited from engaging hereunder during the Restricted Period, Emerson shall be relieved of all, and shall have no further, obligations to provide the\npayments or benefits specified in this Section 8 (unless otherwise required by law).\nThis Agreement is deemed to be entered in the State of Missouri and, without regard to conflict of laws principles, shall be interpreted in accordance\nwith and governed by the laws of the State of Missouri. Emerson and you agree that any legal action or proceeding with respect to this Agreement shall\nbe brought and determined in the courts of the County of St. Louis, State of Missouri or of the United States of America for the Eastern District of\nMissouri and that you submit to the jurisdiction of such courts with respect to any such action or proceeding.\nYou acknowledge that Emerson has advised you to consult with an attorney if you need assistance in reviewing or understanding this Agreement or any\nof the documents referenced in this Agreement, including the Release Agreement.\n6\nPlease confirm that the foregoing represents your understanding of our entire agreement by signing in the space provided below. Once again, I thank you\nfor your many years of dedicated service to Emerson, and I wish you the very best in your retirement.\nSincerely,\n/s/ David N. Farr\nDavid N. Farr\nChairman & Chief Executive Officer\nACCEPTED AND AGREED TO THIS 2nd\nDAY OF (Month/Year) October 2018\n/s/ Edward L. Monser\nEdward L. Monser\nEXHIBIT A - RELEASE AGREEMENT\nThis Release Agreement is Exhibit A to that certain Letter Agreement by and between Emerson Electric Co. (“Employer”) and Edward L. Monser\n(“Employee”) dated October 1, 2018 the (“Letter Agreement”). In consideration of the mutual promises and covenants contained in the Letter\nAgreement and herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby\nagree as follows:\n1. Employment. Employee was previously employed by Employer. The employment of Employee with Employer has ended as a result of\nEmployee’s retirement from Employer effective October 1, 2018.\n2. Release. For and in consideration of the covenants, terms and conditions set forth in the Letter Agreement and this Release Agreement,\nEmployee, for himself and his heirs, to the fullest extent permitted by law, agrees to and does hereby waive, covenant not to sue, releases, and forever\ndischarges Employer, and each and every one of Employer’s parent, subsidiary and other affiliated entities (the “Emerson Entities”), and their respective\nagents, employees, officers, directors, stockholders, managers, members, successors, predecessors, contractors, attorneys, external counsel, agents and\nassigns (collectively referred to as “Released Parties”), from and with respect to all matters, claims, charges, demands, damages, causes of action, debts,\nliabilities, controversies, judgments, and suits of every kind and nature whatsoever, foreseen or unforeseen, known or unknown, arising prior to the date\nthis Release Agreement becomes effective and including, but not limited to, those in any way related to Employee and/or Employee’s separation from\nemployment. This release by Employee of Released Parties expressly includes, but is not limited to, any claim or cause of action against Released\nParties related to or arising out of tort, contract, equity, implied covenant, invasion of privacy, defamation, personal injury, wrongful discharge,\nemotional distress, discrimination (whether based on race, sex, age, color, national origin, religion, disability, or any other class protected by law),\nharassment, retaliation, claims for workers’ compensation benefits, claims for unpaid wages, any claim under the Age Discrimination in Employment\nAct, 29 U.S.C. §621 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., the Civil Rights Act of 1866, 42 U.S.C. §1981, the\nAmericans With Disabilities Act, 42 U.S.C. §12101, et seq., the Employee Retirement Income Security Act of 1974, 29 U.S.C. §1001, et seq., the\nFamily Medical Leave Act, 29 U.S.C. §2601 et seq., the Fair Labor Standards Act of 1938, 29 U.S.C. §201 et seq., the Missouri Human Rights Act, Mo.\nRev. Stat. §213.010 et seq.; the Missouri Equal Pay for Women Act, Mo. Rev. Stat. §290.400 et seq., the Missouri Service Letter statute Mo. Rev. Stat.\n§290.14, the Missouri Minimum Wage Law, Mo. Rev. Stat. §290.010 et seq., the Missouri Wage Payment Law, Mo. Rev. Stat. §290.010 et seq., any\nclaim under common law, and any claim under any federal, state or local statute, regulation, constitution, order or executive order. This release also\nexpressly includes, but is not limited to, any claim for attorneys’ fees or costs. Employee affirms and warrants that he has made no charge, claim,\ncomplaint, or otherwise initiated action against Employer in any government agency, court or other forum and that no such matter is pending. Employee\nfurther affirms and warrants that Employee has not been retaliated against for reporting, or taking any actions, pertaining to allegations of wrongdoing\nby Employer or its officers and employees. Employee avers and agrees that he has no personal knowledge of any employee, officer or director of\nEmployer engaging in any act related to the performance of their duties at or for Employer, which Employee knows or believes to be illegal and\nEmployee acknowledges that he has never complained of any unlawful conduct by Employer. Employee hereby releases and relinquishes any and all\nrights to employment, reinstatement and any right to future employment with Employer or the Emerson Entities. Employee also waives and\nA-1\nreleases any right or ability to be a class or collective action representative or to otherwise participate in any putative or certified class, collective or\nmulti- party action or proceeding based on a claim in which Employer or any one or more Released Parties is a party. Notwithstanding the foregoing,\nEmployee is not waiving any right to enforce any term or provision of the Letter Agreement, or any claims solely relating to the validity of this Release\nAgreement under the Age Discrimination in Employment Act.\n3. Waiver of ADEA Rights. By execution of this Release Agreement, Employee expressly waives any and all rights or claims arising under the\nAge Discrimination in Employment Act of 1967 (“ADEA”) and\n(a) Employee has read this Agreement, and the Letter Agreement, in their entirety and understands all of their terms; and\n(b) Employee acknowledges and agrees that the waiver of his rights or claims arising under the ADEA is in exchange for the consideration\nprovided in the Letter Agreement which, Employee agrees, is beyond that to which Employee is otherwise entitled; and\n(c) Employee acknowledges that Employer has, and does, hereby expressly advise him to consult with an attorney of his choosing, at his\nown expense, prior to executing this Release Agreement and the Letter Agreement; and\n(d) Employee agrees that he has been given a period of not less than forty- five (45) days from receipt of this document within which to\nconsider this Release Agreement and the Letter Agreement, and that if Employee elects to sign this Release Agreement prior to the expiration of\nthe 45-day consideration period specified herein, he does so knowingly and voluntarily and with full opportunity to consult with an attorney; and\n(e) Employee acknowledges he has been advised by Employer that he is entitled to revoke this Release Agreement (in the event he\nexecutes this Release Agreement) within seven (7) days after executing it and that this Agreement will not and does not become effective or\nenforceable until the seven (7) day revocation period has expired; and\n(f) The parties agree that should Employee exercise his right to revoke the waiver under this paragraph 3, this entire Release Agreement\nand Letter Agreement, and their obligations, are null and void and of no effect and, notwithstanding any other provision of this Release Agreement\nor the Letter Agreement to the contrary, no payment or other consideration shall be due, owing, paid or provided until the seven (7) day revocation\nperiod has expired without revocation by Employee. Notice of Employee’s decision to revoke the waiver may be sent to Emerson’s Senior Vice\nPresident, Secretary and General Counsel by fax (at 314-553-3205), email to sara.bosco@emerson.com or hand-delivery.\n4. Remedies. Without limiting the remedies available to Employer for any breach of this Release Agreement, Employee agrees that any breach\nof either this Release Agreement or the Letter Agreement will result in immediate forfeiture of any future payments to be made to, or benefits to be\nprovided to, Employee and all other remedies and relief as specifically set forth further in the Letter Agreement shall be available to Employer.\n5. Successors and Assigns. This Release Agreement binds, and inures to the benefit of, the parties’ respective heirs, administrators,\nrepresentatives, executors, successors, and assigns.\nA-2\n6. Review by Employee. Employee acknowledges that he has read the provisions of this Release Agreement, that Employee was advised of his\nright to review this Release Agreement with an attorney at his expense, and that Employee fully understands the meaning and intent of this Release\nAgreement and agrees to all of its terms.\nEMPLOYEE\n/s/ Edward L. Monser\nEdward L. Monser\nDate: October 2, 2018\nA-3\nEXHIBIT B - OFFICER RESIGNATION\nI, Edward L. Monser, do hereby submit my resignation, effective October 1, 2018, from my position as President of Emerson Electric Co., as well as\nfrom any other positions (if any) I may hold with any subsidiaries or affiliates of Emerson.\n/s/ Edward L. Monser\nEdward L. Monser	EX-10.1 2 d634197dex101.htm EX-10.1\nExhibit 10.1\nDavid N. Farr\nChairman and\nChief Executive Officer\nLOGO\nEmerson\n8000 West Florissant Avenue.\nP.O. Box 4100\nSt. Louis, MO 63136-8506\nUSA\nEdward L. Monser\n8000 West Florissant Ave.\nSt. Louis, MO 63136\nDear Ed:\nOn behalf of the entire Emerson organization, I want to congratulate you on your 37+ years of dedicated service, insights and passion to create a better\nEmerson. Thank you for your significant contributions to the tremendous success of Emerson. Your accomplishments and support of me, the Board of\nDirectors and Emerson shareholders have been extraordinary and very much appreciated. This Letter Agreement ("Agreement") sets out the terms of\nyour retirement, including your resignation as an employee and officer of Emerson Electric Co. Throughout this Agreement, the term "Emerson" means\nEmerson Electric Co. together with any and all other entities owned directly or indirectly, in whole or in part, by Emerson Electric Co. Your retirement\nand the terms of this Agreement are effective as of October 1, 2018 ("Retirement Date").\nIn consideration of good and valuable consideration provided to you pursuant to this Agreement, you agree as follows:\n1. NON-DISCLOSURE AGREEMENT\nYou agree that during your employment you have received and had access to Emerson's trade secrets and confidential and proprietary information\n("Confidential Information"), which includes or concerns, but is not limited to, attorney/client communications, global strategic communications,\ninformation pertaining to strategic planning or other strategy, mergers and acquisitions, corporate technology, intellectual property, customers, pricing,\nbusiness methods and operations, business policies, procedures, practices and techniques, legal opinions and legal matters, research or development\nprojects or results, sales, finances, products, suppliers, personnel performance and compensation, plans for future development, marketing practices,\nmarket participation, market studies, and financial forecasts and budgeting. You agree that disclosure of such Confidential Information would be\ndetrimental to Emerson and agree that at no time following termination of your employment with Emerson will you directly or indirectly disclose or\ncause the disclosure of any Confidential Information to any person, firm, corporation, or entity, no matter what the purpose. You further agree that you\nwill not directly or indirectly disclose the terms of this Agreement to any person except as authorized specifically herein.\nThe non-disclosure obligations set forth above shall not apply to the extent it is necessary for you to: report income to taxing authorities; communicate\nwith your attorneys or agents to obtain legal and/or financial planning advice after any such attorneys or agents bind themselves in writing to the\nsame\nnon-disclosure\nobligations\nas\nset\nforth\nabove;\nor,\nto\nrespond\nto\nany\nlawfully\nissued\nsubpoena\nor\norder\nof\na\ncourt\nof\ncompetent\njurisdiction\nor\nlegitimate\ndiscovery request pursuant to state or federal rules of civil procedure. If any such subpoena, order of court or discovery request is received, you agree to\nsend to Emerson's General Counsel no later than two days after receipt via email to sara.bosco@emerson.com or via hand-delivery.\nYou agree also to deliver to the office of Emerson's General Counsel within a three day period following the Retirement Date all such Confidential\nInformation, any other property of Emerson, and all copies thereof in your possession or control, whether in handwritten, typed, printed, graphic or\nelectronic form (whether stored on Emerson-owned or personally owned or used devices, including but not limited to personal computers, tablets, smart\nphones, memory sticks, thumb drives, or on-site or off-site storage locations). If after such three-day period you determine that you have any\nConfidential Information or other property of Emerson in your possession or control, you shall immediately deliver such Confidential Information\nor\nproperty to the office of Emerson's General Counsel. You further agree to deliver your signed certification of compliance with the provisions of this\nparagraph promptly upon request made to you in writing by Emerson's General Counsel.\n2. NON-DISPARAGEMENT AGREEMENT\nYou will not individually or through third-parties make any public or private statement with respect to any aspect of your employment with Emerson,\nyour\nretirement,\nor\nthe\nterms\nof\nthis\nAgreement.\nIf\ninquiry\nis\nmade\nby\nanyone\nregarding\nyour\nemployment\nby,\nor\nretirement\nfrom,\nEmerson,\nyou\nagree\nto\nstate only "I have retired from Emerson effective October 1, 2018. I personally decided to retire, and I have enjoyed my many years with Emerson.\nEmerson is a tremendous company and I wish it well."\nYou also agree that you will not, directly or indirectly, disparage or make or cause to be made, any comments, statements, or communications of any sort\nto anyone-whether true or false- that may reasonably be considered to be derogatory or detrimental to Emerson or any Released Parties (as defined\nin\nthe Release Agreement attached as Exhibit A), their reputations, or their services. You acknowledge that Emerson has a good reputation locally,\nnationally and internationally, and you will take no action or engage in any conduct that could injure or diminish that good reputation.\n3.\nNON-COMPETITION AND NON-SOLICITATION AGREEMENTS\nYou also agree that you will not, without prior written consent from both Emerson's Chief Executive Officer and General Counsel, directly or indirectly\nfor a period of five years from your Retirement Date ("Restricted Period"):\n(a) enter the employ of, provide consulting services to, assist, or have any financial interest in, any person, firm, corporation, or other entity\nengaged in business activities anywhere in the world that directly or indirectly competes with the businesses of Emerson as conducted on the date of this\nAgreement or as contemplated on the date hereof to be developed during the Restricted Period;\n(b) acquire in any manner any investment in, or provide services to in any capacity, any equity fund, hedge fund, or other investment vehicle,\nhowever structured, that either directly or indirectly or through portfolio company investments or otherwise competes with the businesses of Emerson as\nconducted on the date hereof or as contemplated on the date hereof to be developed during the Restrictive Period;\n2\n(c) assist any third party in connection with any acquisition of any business of Emerson, whether through an acquisition or stock or assets or\notherwise, or in the sale of any business to Emerson;\n(d) assist any third party in connection with any attempt to assert control over or influence the management of Emerson, whether through the\nacquisition or stock by such third party, addition of board members recommended by such third party, a proxy solicitation by such third party or\notherwise;\n(e) accept or solicit business from or attempt to solicit or accept business from any person that is a customer of Emerson;\n(f) divert, take any action to induce, or encourage a customer of Emerson to reduce or cease doing business with Emerson;\n(g) solicit, hire, or attempt to solicit or hire any person that currently or during the Restricted Period is an employee, agent or consultant of\nEmerson to leave such employment or separate his or her relationship with Emerson or induce any such person to do anything which you are restricted\nfrom doing by reason of this Agreement; or\n(h) engage in any other action that might undermine the business interests of Emerson.\nThe foregoing shall not restrict you from owning not more than five percent of the securities of any competitor of Emerson that is listed on any national\nsecurities exchange, traded over-the- counter, or that is otherwise available for investment by the general public as long as you have no relationship with\nthe issuer of such securities or any affiliate thereof, except as an investor.\n4. REASONABLENESS ENFORCEABILITY AND LIQUIDATED DAMAGES\nYou agree that the restrictions contained in Paragraph 3, including those on time and scope, are reasonable for the protection of Emerson in light\nof\nyour\nin-depth knowledge of Emerson's global business, your present and prior positions with Emerson, and your access to Confidential Information relating\nto all of Emerson's businesses. You also affirm your agreement to comply with all existing non-competition, invention disclosure and assignment,\nnon-disclosure and non-solicitation obligations you have with Emerson, including specifically your obligations under the Emerson Incentive Shares\nplans and related performance shares and restricted stock award agreements, and Emerson stock option plans and related option agreements, and\nEmerson non-qualified supplemental executive retirement plan participation. You agree that your obligations set forth in this Agreement are in addition\nto and do not invalidate or supersede your obligations under other plans, agreements or contracts unless in direct conflict, in which case the terms of this\nAgreement shall prevail.\nYou agree and acknowledge that Emerson would not enter into this Agreement and provide the valuable consideration offered to you herein but for the\nrestrictions in this Agreement. You agree that a violation of this Agreement and the other agreements referenced in this Section 4 would result in\nirreparable injury to Emerson and that, in the event of a violation or a reasonably perceived threatened violation of any of the aforementioned\nrestrictions, Emerson shall be entitled to immediate, preliminary and permanent injunctive relief which is in addition to any other remedies to which\nEmerson may be entitled. You further agree to reimburse Emerson for all costs, expenses and reasonable attorneys' fees Emerson incurs to seek\nenforcement of any provision contained herein, whether or not litigation is commenced.\n3\nYou agree that any breach of this Agreement will result in immediate forfeiture by you of all payments to be made or benefits provided to you under\nthis\nAgreement. You also agree as liquidated damages for any such breach to repay to Emerson one-half of the economic value of all benefits provided to\nyou under this Agreement prior to the date of breach. You agree that this liquidated damage provision and other remedies are necessary because\nsubstantial damage will accrue to Emerson as the result of a breach, and the amount of damages attributable to such breach may be uncertain and\ndifficult to calculate. Payment of liquidated damages shall in no way affect the settlement and release of claims by you, nor shall payment of liquidated\ndamages limit the enforceability of any clause in this Agreement or any other agreement referenced in this Section 4 or the ability of Emerson to seek\ndamages and any other relief from you as provided under applicable law or any agreement between you and Emerson.\n5. RELEASE AND DISCHARGE\nYou will release and discharge Emerson and its respective Directors, officers, employees and agents from any and all claims or liability of whatever\nnature\nand\nwill execute on your Retirement Date the Release Agreement attached hereto as Exhibit A. If the Release Agreement attached as Exhibit\nA\nis\nnot executed by you, this Agreement shall be null and void. You also agree that no benefits or other compensation described in this Agreement (other\nthan the payment of your base salary described in Section 8.A. hereof, shall be paid or provided to you until expiration of the seven-day revocation\nperiod set forth in Paragraph 3(e) of the Release Agreement.\n6. RESIGNATIONS\nYou agree to execute the Officer Resignation Form attached hereto as Exhibit B, effective as of October 1, 2018.\n7. CLAWBACK\nYou agree that you will remain subject to Emerson's Clawback Policy, which provides: "If the Board determines that an executive officer has engaged\nin\nintentional misconduct that caused or partially caused a material restatement of the Company's consolidated financial statements, the Board\nmay,\nto\nthe\nextent permitted by law and to the extent it determines that it is in the Company's best interests to do so, require reimbursement to the Company of, or\nreduce or cancel, that portion of annual incentive or any long-term incentive compensation paid or credited to such executive officer on or after\nFebruary 1, 2015 that would not have been paid or credited had the consolidated financial statements that are the subject of such restatement been\ncorrectly stated. For purposes of this policy, the term "executive officer" means any officer of the Company who is required to file reports pursuant\nto\nSection 16 of the Securities Exchange Act of 1934."\n8. COMPENSATION AND BENEFITS\nSubject to and conditioned upon your compliance with your obligations and covenants in this Agreement and any other agreement entered into between\nyou and Emerson, you will receive the compensation and benefits outlined below. The compensation and benefits set forth herein are in lieu of and\nreplace any other compensation or benefits to which you may be entitled from Emerson:\nA.\nYou will remain on the Emerson payroll and receive your current base salary through your retirement date.\nB.\nYou will remain eligible to participate in the Fiscal 2018 Emerson Electric Extra Salary Program under the same terms and conditions as\nother participants in the Program. We will recommend to the Compensation Committee that you receive a payment under the Program for Fiscal 2018\nand subject to their approval, payment will be made consistent with prior practices.\n4\nC. You may continue coverage under the former split dollar and group universal life policies owned by you through your retirement date. After\nyour retirement, you may continue coverage under such policies at your own expense, subject to the terms of the underlying policies.\nD. Your executive perquisites, including leased automobile, club dues, executive physical and financial tax planning, will end on the Retirement\nDate, unless noted otherwise below:\ni.\nYou may complete your 2018 calendar year tax return under the executive financial tax planning program, subject to the normal terms and\nconditions of the program.\nii.\nUnder the normal terms and conditions of the program, you will be required to return or purchase at its fair market value, your company\nautomobile within thirty (30) days following your retirement date.\nE. In accordance with the terms of the applicable Emerson stock option plans, and as approved by the Compensation Committee of the Board of\nDirectors, all of your outstanding options will be exercisable for a period of up to five (5) years after the Retirement Date, but no longer than the original\nexpiration date of the option.\nF. The Compensation Committee has determined that you will remain eligible to receive payment of your outstanding Performance Shares\nawards, subject to the other applicable terms of Emerson's Incentive Shares Plans and the applicable Performance Shares Program which apply to all\nparticipants, including achievement of the performance objectives under each Program, and based on the actual payout percentage applicable to each\nProgram, and at the time provided therefor under the respective programs, as follows:\ni.\nYou will remain eligible to receive a full payout under the 2016 and 2017 Performance Shares Programs.\nii.\nYou will remain eligible to receive up to a 50% pro-rata payment under the 2018 Performance Shares Program.\nG. Pursuant to the terms of Emerson's Incentive Shares Plans, the Compensation Committee has determined that your award of restricted shares\nwill continue to vest as specified in the original award document and be payable to you upon the vesting date of the award (November 1, 2019), and that\nyou will continue to receive dividends on the restricted share award to the extent provided in the original award agreement.\nH. Pursuant to the terms and conditions of the qualified all-employee Emerson Electric Co. Retirement Plan, you will be eligible to receive your\nmonthly pension benefits accrued under such plan as of the Retirement Date. Pursuant to the terms and conditions of the related Emerson Electric Co.\nPension Restoration Plan (the non-qualified supplemental executive retirement plan which covers the benefits you would have been eligible to receive\nunder the aforesaid all-employee Retirement Plan were it not for the compensation limitations imposed under the Internal Revenue Code ("Code")), you\nwill also be eligible to receive your monthly pension benefits accrued as of your Retirement Date under such plan. Payment of your accrued benefits\nunder the non-qualified supplemental executive retirement plan which are not "grandfathered" under Section 409A of the Code shall be deferred to the\nextent required by Code Section 409A. Payments of your pension benefits under each of the aforesaid plans will be paid monthly in the manner and\ntimes set forth in such plans, subject to the terms and conditions of such plans.\n5\nI. You will be eligible to receive distributions from your Emerson Electric Co. Employee Savings Investment Plan (401(k) plan) to the extent\npermitted under the terms of the plan and applicable law. You will be eligible to receive distributions under the Emerson Electric Co. Savings\nInvestment Restoration Plan (non-qualified 401(k) plan), subject to the provisions of the plan and your distribution elections thereunder. Distributions\nfrom these plans which are not "grandfathered" under Section 409A of the Code shall be deferred to the extent required by Code Section 409A.\nJ. All payments and other benefits provided for under this Agreement, including but not limited to any performance shares program payouts,\nvesting of restricted stock, or shares of stock issued to you upon exercise of your stock options, will be subject to income tax and other withholdings as\nrequired by law.\nK. Except as provided for specifically above, after the Retirement Date you will not be permitted to continue participating in any Emerson\nbenefit or compensation programs including, but not limited to, the qualified and non-qualified 401(k) plans and the disability insurance program.\nL. Notwithstanding any other provisions of this Agreement, if at any time after the Restricted Period you engage in an activity in which you are\nprohibited from engaging hereunder during the Restricted Period, Emerson shall be relieved of all, and shall have no further, obligations to provide the\npayments or benefits specified in this Section 8 (unless otherwise required by law).\nThis Agreement is deemed to be entered in the State of Missouri and, without regard to conflict of laws principles, shall be interpreted in accordance\nwith and governed by the laws of the State of Missouri. Emerson and you agree that any legal action or proceeding with respect to this Agreement\nshall\nbe brought and determined in the courts of the County of St. Louis, State of Missouri or of the United States of America for the Eastern District\nof\nMissouri and that you submit to the jurisdiction of such courts with respect to any such action or proceeding.\nYou acknowledge that Emerson has advised you to consult with an attorney if you need assistance in reviewing or understanding this Agreement or any\nof the documents referenced in this Agreement, including the Release Agreement.\n6\nPlease confirm that the foregoing represents your understanding of our entire agreement by signing in the space provided below. Once again, I thank you\nfor your many years of dedicated service to Emerson, and I wish you the very best in your retirement.\nSincerely,\n/s/ David N. Farr\nDavid N. Farr\nChairman & Chief Executive Officer\nACCEPTED AND AGREED TO THIS 2nd\nDAY OF (Month/Year) October 2018\n/s/ Edward L. Monser\nEdward L. Monser\n7\nEXHIBIT A - RELEASE AGREEMENT\nThis Release Agreement is Exhibit A to that certain Letter Agreement by and between Emerson Electric Co. ("Employer") and Edward L. Monser\n("Employee") dated October 1, 2018 the ("Letter Agreement"). In consideration of the mutual promises and covenants contained in the Letter\nAgreement and herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby\nagree as follows:\n1. Employment. Employee was previously employed by Employer. The employment of Employee with Employer has ended as a result of\nEmployee's retirement from Employer effective October 1, 2018.\n2. Release. For and in consideration of the covenants, terms and conditions set forth in the Letter Agreement and this Release Agreement,\nEmployee, for himself and his heirs, to the fullest extent permitted by law, agrees to and does hereby waive, covenant not to sue, releases, and\nforever\ndischarges Employer, and each and every one of Employer's parent, subsidiary and other affiliated entities (the "Emerson Entities"), and their respective\nagents, employees, officers, directors, stockholders, managers, members, successors, predecessors, contractors, attorneys, external counsel, agents and\nassigns\n(collectively\nreferred\nto\nas\n"Released\nParties"),\nfrom\nand\nwith\nrespect\nto\nall\nmatters,\nclaims,\ncharges,\ndemands,\ndamages,\ncauses\nof\naction,\ndebts,\nliabilities, controversies, judgments, and suits of every kind and nature whatsoever, foreseen or unforeseen, known or unknown, arising prior to the date\nthis Release Agreement becomes effective and including, but not limited to, those in any way related to Employee and/or Employee's separation from\nemployment. This release by Employee of Released Parties expressly includes, but is not limited to, any claim or cause of action against Released\nParties related to or arising out of tort, contract, equity, implied covenant, invasion of privacy, defamation, personal injury, wrongful discharge,\nemotional distress, discrimination (whether based on race, sex, age, color, national origin, religion, disability, or any other class protected by law),\nharassment, retaliation, claims for workers' compensation benefits, claims for unpaid wages, any claim under the Age Discrimination in Employment\nAct, 29 U.S.C. 8621 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. 82000e et seq., the Civil Rights Act of 1866, 42 U.S.C. 1981, the\nAmericans With Disabilities Act, 42 U.S.C. 812101, et seq., the Employee Retirement Income Security Act of 1974, 29 U.S.C. 81001, et seq., the\nFamily Medical Leave Act, 29 U.S.C. $2601 et seq., the Fair Labor Standards Act of 1938, 29 U.S.C. 8201 et seq., the Missouri Human Rights\nAct,\nMo.\nRev. Stat. 8213.010 et seq.; the Missouri Equal Pay for Women Act, Mo. Rev. Stat. 8290.400 et seq., the Missouri Service Letter statute Mo. Rev. Stat.\n$290.14, the Missouri Minimum Wage Law, Mo. Rev. Stat. 8290.010 et seq., the Missouri Wage Payment Law, Mo. Rev. Stat. $290.010 et seq., any\nclaim under common law, and any claim under any federal, state or local statute, regulation, constitution, order or executive order. This release also\nexpressly includes, but is not limited to, any claim for attorneys' fees or costs. Employee affirms and warrants that he has made no charge, claim,\ncomplaint, or otherwise initiated action against Employer in any government agency, court or other forum and that no such matter is pending. Employee\nfurther\naffirms and warrants that Employee has not been retaliated against for reporting, or taking any actions, pertaining to allegations of wrongdoing\nby Employer or its officers and employees. Employee avers and agrees that he has no personal knowledge of any employee, officer or director of\nEmployer engaging in any act related to the performance of their duties at or for Employer, which Employee knows or believes to be illegal and\nEmployee acknowledges that he has never complained of any unlawful conduct by Employer. Employee hereby releases and relinquishes any and all\nrights to employment, reinstatement and any right to future employment with Employer or the Emerson Entities. Employee also waives and\nA-1\nreleases any right or ability to be a class or collective action representative or to otherwise participate in any putative or certified class, collective\nor\nmulti- party action or proceeding based on a claim in which Employer or any one or more Released Parties is a party. Notwithstanding the foregoing,\nEmployee is not waiving any right to enforce any term or provision of the Letter Agreement, or any claims solely relating to the validity of this Release\nAgreement under the Age Discrimination in Employment Act.\n3. Waiver of ADEA Rights. By execution of this Release Agreement, Employee expressly waives any and all rights or claims arising under the\nAge Discrimination in Employment Act of 1967 ("ADEA") and\n(a) Employee has read this Agreement, and the Letter Agreement, in their entirety and understands all of their terms; and\n(b) Employee acknowledges and agrees that the waiver of his rights or claims arising under the ADEA is in exchange for the consideration\nprovided in the Letter Agreement which, Employee agrees, is beyond that to which Employee is otherwise entitled; and\n(c) Employee acknowledges that Employer has, and does, hereby expressly advise him to consult with an attorney of his choosing, at his\nown expense, prior to executing this Release Agreement and the Letter Agreement; and\n(d) Employee agrees that he has been given a period of not less than forty- five (45) days from receipt of this document within which to\nconsider this Release Agreement and the Letter Agreement, and that if Employee elects to sign this Release Agreement prior to the expiration of\nthe 45-day consideration period specified herein, he does so knowingly and voluntarily and with full opportunity to consult with an attorney; and\n(e) Employee acknowledges he has been advised by Employer that he is entitled to revoke this Release Agreement (in the event he\nexecutes this Release Agreement) within seven (7) days after executing it and that this Agreement will not and does not become effective or\nenforceable until the seven (7) day revocation period has expired; and\n(f) The parties agree that should Employee exercise his right to revoke the waiver under this paragraph 3, this entire Release Agreement\nand Letter Agreement, and their obligations, are null and void and of no effect and, notwithstanding any other provision of this Release Agreement\nor the Letter Agreement to the contrary, no payment or other consideration shall be due, owing, paid or provided until the seven (7) day revocation\nperiod has expired without revocation by Employee. Notice of Employee's decision to revoke the waiver may be sent to Emerson's Senior Vice\nPresident, Secretary and General Counsel by fax (at 314-553-3205), email to sara.bosco@emerson.com or hand-delivery.\n4. Remedies. Without limiting the remedies available to Employer for any breach of this Release Agreement, Employee agrees that any breach\nof either this Release Agreement or the Letter Agreement will result in immediate forfeiture of any future payments to be made to, or benefits to be\nprovided to, Employee and all other remedies and relief as specifically set forth further in the Letter Agreement shall be available to Employer.\n5. Successors and Assigns. This Release Agreement binds, and inures to the benefit of, the parties' respective heirs, administrators,\nrepresentatives, executors, successors, and assigns.\nA-2\n6.\nReview by Employee. Employee acknowledges that he has read the provisions of this Release Agreement, that Employee was advised of his\nright to review this Release Agreement with an attorney at his expense, and that Employee fully understands the meaning and intent of this Release\nAgreement and agrees to all of its terms.\nEMPLOYEE\n/s/ Edward L. Monser\nEdward L. Monser\nDate: October 2, 2018\nA-3\nEXHIBIT B - OFFICER RESIGNATION\nI, Edward L. Monser, do hereby submit my resignation, effective October 1, 2018, from my position as President of Emerson Electric Co., as well as\nfrom any other positions (if any) I may hold with any subsidiaries or affiliates of Emerson.\n/s/ Edward L. Monser\nEdward L. Monser	EX-10.1 2 d634197dex101.htm EX-10.1\nExhibit 10.1\nLOGO\nDavid N. Farr\nChairman and\nChief Executive Officer\nEmerson\n8000 West Florissant Avenue.\nP.O . Box 4100\nSt. Louis, MO 63136-8506\nUSA\nEdward L. Monser\n8000 West Florissant Ave.\nSt. Louis, MO 63136\nDear Ed:\nOn behalf of the entire Emerson organization, I want to congratulate you on your 37+ years of dedicated service, insights and passion to create a better\nEmerson. Thank you for your significant contributions to the tremendous success of Emerson. Your accomplishments and support of me, the Board of\nDirectors and Emerson shareholders have been extraordinary and very much appreciated. This Letter Agreement (“Agreement”) sets out the terms of\nyour retirement, including your resignation as an employee and officer of Emerson Electric Co. Throughout this Agreement, the term “Emerson” means\nEmerson Electric Co. together with any and all other entities owned directly or indirectly, in whole or in part, by Emerson Electric Co. Your retirement\nand the terms of this Agreement are effective as of October 1, 2018 (“Retirement Date”).\nIn consideration of good and valuable consideration provided to you pursuant to this Agreement, you agree as follows:\n1. NON-DISCLOSURE AGREEMENT\nYou agree that during your employment you have received and had access to Emerson’s trade secrets and confidential and proprietary information\n(“Confidential Information”), which includes or concerns, but is not limited to, attorney/client communications, global strategic communications,\ninformation pertaining to strategic planning or other strategy, mergers and acquisitions, corporate technology, intellectual property, customers, pricing,\nbusiness methods and operations, business policies, procedures, practices and techniques, legal opinions and legal matters, research or development\nprojects or results, sales, finances, products, suppliers, personnel performance and compensation, plans for future development, marketing practices,\nmarket participation, market studies, and financial forecasts and budgeting. You agree that disclosure of such Confidential Information would be\ndetrimental to Emerson and agree that at no time following termination of your employment with Emerson will you directly or indirectly disclose or\ncause the disclosure of any Confidential Information to any person, firm, corporation, or entity, no matter what the purpose. You further agree that you\nwill not directly or indirectly disclose the terms of this Agreement to any person except as authorized specifically herein.\nThe non-disclosure obligations set forth above shall not apply to the extent it is necessary for you to: report income to taxing authorities; communicate\nwith your attorneys or agents to obtain legal and/or financial planning advice after any such attorneys or agents bind themselves in writing to the same\nnon-disclosure obligations as set forth above; or, to respond to any lawfully issued subpoena or order of a court of competent jurisdiction or legitimate\ndiscovery request pursuant to state or federal rules of civil procedure. If any such subpoena, order of court or discovery request is received, you agree to\nsend to Emerson’s General Counsel no later than two days after receipt via email to sara.bosco@emerson.com or via hand-delivery.\nYou agree also to deliver to the office of Emerson’s General Counsel within a three day period following the Retirement Date all such Confidential\nInformation, any other property of Emerson, and all copies thereof in your possession or control, whether in handwritten, typed, printed, graphic or\nelectronic form (whether stored on Emerson-owned or personally owned or used devices, including but not limited to personal computers, tablets, smart\nphones, memory sticks, thumb drives, or on-site or off-site storage locations). If after such three-day period you determine that you have any\nConfidential Information or other property of Emerson in your possession or control, you shall immediately deliver such Confidential Information or\nproperty to the office of Emerson’s General Counsel. You further agree to deliver your signed certification of compliance with the provisions of this\nparagraph promptly upon request made to you in writing by Emerson’s General Counsel.\n2. NON-DISPARAGEMENT AGREEMENT\nYou will not individually or through third-parties make any public or private statement with respect to any aspect of your employment with Emerson,\nyour retirement, or the terms of this Agreement. If inquiry is made by anyone regarding your employment by, or retirement from, Emerson, you agree to\nstate only “I have retired from Emerson effective October 1, 2018. I personally decided to retire, and I have enjoyed my many years with Emerson.\nEmerson is a tremendous company and I wish it well.”\nYou also agree that you will not, directly or indirectly, disparage or make or cause to be made, any comments, statements, or communications of any sort\nto anyone—whether true or false— that may reasonably be considered to be derogatory or detrimental to Emerson or any Released Parties (as defined in\nthe Release Agreement attached as Exhibit A), their reputations, or their services. You acknowledge that Emerson has a good reputation locally,\nnationally and internationally, and you will take no action or engage in any conduct that could injure or diminish that good reputation.\n3. NON-COMPETITION AND NON-SOLICITATION AGREEMENTS\nYou also agree that you will not, without prior written consent from both Emerson’s Chief Executive Officer and General Counsel, directly or indirectly\nfor a period of five years from your Retirement Date (“Restricted Period”):\n(a) enter the employ of, provide consulting services to, assist, or have any financial interest in, any person, firm, corporation, or other entity\nengaged in business activities anywhere in the world that directly or indirectly competes with the businesses of Emerson as conducted on the date of this\nAgreement or as contemplated on the date hereof to be developed during the Restricted Period;\n(b) acquire in any manner any investment in, or provide services to in any capacity, any equity fund, hedge fund, or other investment vehicle,\nhowever structured, that either directly or indirectly or through portfolio company investments or otherwise competes with the businesses of Emerson as\nconducted on the date hereof or as contemplated on the date hereof to be developed during the Restrictive Period;\n2\n(c) assist any third party in connection with any acquisition of any business of Emerson, whether through an acquisition or stock or assets or\notherwise, or in the sale of any business to Emerson;\n(d) assist any third party in connection with any attempt to assert control over or influence the management of Emerson, whether through the\nacquisition or stock by such third party, addition of board members recommended by such third party, a proxy solicitation by such third party or\notherwise;\n(e) accept or solicit business from or attempt to solicit or accept business from any person that is a customer of Emerson;\n(f) divert, take any action to induce, or encourage a customer of Emerson to reduce or cease doing business with Emerson;\n(g) solicit, hire, or attempt to solicit or hire any person that currently or during the Restricted Period is an employee, agent or consultant of\nEmerson to leave such employment or separate his or her relationship with Emerson or induce any such person to do anything which you are restricted\nfrom doing by reason of this Agreement; or\n(h) engage in any other action that might undermine the business interests of Emerson.\nThe foregoing shall not restrict you from owning not more than five percent of the securities of any competitor of Emerson that is listed on any national\nsecurities exchange, traded over-the- counter, or that is otherwise available for investment by the general public as long as you have no relationship with\nthe issuer of such securities or any affiliate thereof, except as an investor.\n4. REASONABLENESS ENFORCEABILITY AND LIQUIDATED DAMAGES\nYou agree that the restrictions contained in Paragraph 3, including those on time and scope, are reasonable for the protection of Emerson in light of your\nin-depth knowledge of Emerson’s global business, your present and prior positions with Emerson, and your access to Confidential Information relating\nto all of Emerson’s businesses. You also affirm your agreement to comply with all existing non-competition, invention disclosure and assignment,\nnon-disclosure and non-solicitation obligations you have with Emerson, including specifically your obligations under the Emerson Incentive Shares\nplans and related performance shares and restricted stock award agreements, and Emerson stock option plans and related option agreements, and\nEmerson non-qualified supplemental executive retirement plan participation. You agree that your obligations set forth in this Agreement are in addition\nto and do not invalidate or supersede your obligations under other plans, agreements or contracts unless in direct conflict, in which case the terms of this\nAgreement shall prevail.\nYou agree and acknowledge that Emerson would not enter into this Agreement and provide the valuable consideration offered to you herein but for the\nrestrictions in this Agreement. You agree that a violation of this Agreement and the other agreements referenced in this Section 4 would result in\nirreparable injury to Emerson and that, in the event of a violation or a reasonably perceived threatened violation of any of the aforementioned\nrestrictions, Emerson shall be entitled to immediate, preliminary and permanent injunctive relief which is in addition to any other remedies to which\nEmerson may be entitled. You further agree to reimburse Emerson for all costs, expenses and reasonable attorneys’ fees Emerson incurs to seek\nenforcement of any provision contained herein, whether or not litigation is commenced.\n3\nYou agree that any breach of this Agreement will result in immediate forfeiture by you of all payments to be made or benefits provided to you under this\nAgreement. You also agree as liquidated damages for any such breach to repay to Emerson one-half of the economic value of all benefits provided to\nyou under this Agreement prior to the date of breach. You agree that this liquidated damage provision and other remedies are necessary because\nsubstantial damage will accrue to Emerson as the result of a breach, and the amount of damages attributable to such breach may be uncertain and\ndifficult to calculate. Payment of liquidated damages shall in no way affect the settlement and release of claims by you, nor shall payment of liquidated\ndamages limit the enforceability of any clause in this Agreement or any other agreement referenced in this Section 4 or the ability of Emerson to seek\ndamages and any other relief from you as provided under applicable law or any agreement between you and Emerson.\n5. RELEASE AND DISCHARGE\nYou will release and discharge Emerson and its respective Directors, officers, employees and agents from any and all claims or liability of whatever\nnature and will execute on your Retirement Date the Release Agreement attached hereto as Exhibit A. If the Release Agreement attached as Exhibit A is\nnot executed by you, this Agreement shall be null and void. You also agree that no benefits or other compensation described in this Agreement (other\nthan the payment of your base salary described in Section 8.A . hereof, shall be paid or provided to you until expiration of the seven-day revocation\nperiod set forth in Paragraph 3(e) of the Release Agreement.\n6. RESIGNATIONS\nYou agree to execute the Officer Resignation Form attached hereto as Exhibit B, effective as of October 1, 2018.\n7. CLAWBACK\nYou agree that you will remain subject to Emerson’s Clawback Policy, which provides: “If the Board determines that an executive officer has engaged in\nintentional misconduct that caused or partially caused a material restatement of the Company’s consolidated financial statements, the Board may, to the\nextent permitted by law and to the extent it determines that it is in the Company’s best interests to do so, require reimbursement to the Company of, or\nreduce or cancel, that portion of annual incentive or any long-term incentive compensation paid or credited to such executive officer on or after\nFebruary 1, 2015 that would not have been paid or credited had the consolidated financial statements that are the subject of such restatement been\ncorrectly stated. For purposes of this policy, the term “executive officer” means any officer of the Company who is required to file reports pursuant to\nSection 16 of the Securities Exchange Act of 1934.”\n8. COMPENSATION AND BENEFITS\nSubject to and conditioned upon your compliance with your obligations and covenants in this Agreement and any other agreement entered into between\nyou and Emerson, you will receive the compensation and benefits outlined below. The compensation and benefits set forth herein are in lieu of and\nreplace any other compensation or benefits to which you may be entitled from Emerson:\nA. You will remain on the Emerson payroll and receive your current base salary through your retirement date.\nB. You will remain eligible to participate in the Fiscal 2018 Emerson Electric Extra Salary Program under the same terms and conditions as\nother participants in the Program. We will recommend to the Compensation Committee that you receive a payment under the Program for Fiscal 2018\nand subject to their approval, payment will be made consistent with prior practices.\n4\nC. You may continue coverage under the former split dollar and group universal life policies owned by you through your retirement date. After\nyour retirement, you may continue coverage under such policies at your own expense, subject to the terms of the underlying policies.\nD. Your executive perquisites, including leased automobile, club dues, executive physical and financial tax planning, will end on the Retirement\nDate, unless noted otherwise below:\ni. You may complete your 2018 calendar year tax return under the executive financial tax planning program, subject to the normal terms and\nconditions of the program.\nii. Under the normal terms and conditions of the program, you will be required to return or purchase at its fair market value, your company\nautomobile within thirty (30) days following your retirement date.\nE. In accordance with the terms of the applicable Emerson stock option plans, and as approved by the Compensation Committee of the Board of\nDirectors, all of your outstanding options will be exercisable for a period of up to five (5) years after the Retirement Date, but no longer than the original\nexpiration date of the option.\nF. The Compensation Committee has determined that you will remain eligible to receive payment of your outstanding Performance Shares\nawards, subject to the other applicable terms of Emerson’s Incentive Shares Plans and the applicable Performance Shares Program which apply to all\nparticipants, including achievement of the performance objectives under each Program, and based on the actual payout percentage applicable to each\nProgram, and at the time provided therefor under the respective programs, as follows:\ni. You will remain eligible to receive a full payout under the 2016 and 2017 Performance Shares Programs.\nii. You will remain eligible to receive up to a 50% pro-rata payment under the 2018 Performance Shares Program.\nG. Pursuant to the terms of Emerson’s Incentive Shares Plans, the Compensation Committee has determined that your award of restricted shares\nwill continue to vest as specified in the original award document and be payable to you upon the vesting date of the award (November 1, 2019), and that\nyou will continue to receive dividends on the restricted share award to the extent provided in the original award agreement.\nH. Pursuant to the terms and conditions of the qualified all-employee Emerson Electric Co. Retirement Plan, you will be eligible to receive your\nmonthly pension benefits accrued under such plan as of the Retirement Date. Pursuant to the terms and conditions of the related Emerson Electric Co.\nPension Restoration Plan (the non-qualified supplemental executive retirement plan which covers the benefits you would have been eligible to receive\nunder the aforesaid all-employee Retirement Plan were it not for the compensation limitations imposed under the Internal Revenue Code (“Code”)), you\nwill also be eligible to receive your monthly pension benefits accrued as of your Retirement Date under such plan. Payment of your accrued benefits\nunder the non-qualified supplemental executive retirement plan which are not “grandfathered” under Section 409A of the Code shall be deferred to the\nextent required by Code Section 409A. Payments of your pension benefits under each of the aforesaid plans will be paid monthly in the manner and\ntimes set forth in such plans, subject to the terms and conditions of such plans.\n5\nI. You will be eligible to receive distributions from your Emerson Electric Co. Employee Savings Investment Plan (401(k) plan) to the extent\npermitted under the terms of the plan and applicable law. You will be eligible to receive distributions under the Emerson Electric Co. Savings\nInvestment Restoration Plan (non-qualified 401(k) plan), subject to the provisions of the plan and your distribution elections thereunder. Distributions\nfrom these plans which are not “grandfathered” under Section 409A of the Code shall be deferred to the extent required by Code Section 409A.\nJ. All payments and other benefits provided for under this Agreement, including but not limited to any performance shares program payouts,\nvesting of restricted stock, or shares of stock issued to you upon exercise of your stock options, will be subject to income tax and other withholdings as\nrequired by law.\nK. Except as provided for specifically above, after the Retirement Date you will not be permitted to continue participating in any Emerson\nbenefit or compensation programs including, but not limited to, the qualified and non-qualified 401(k) plans and the disability insurance program.\nL. Notwithstanding any other provisions of this Agreement, if at any time after the Restricted Period you engage in an activity in which you are\nprohibited from engaging hereunder during the Restricted Period, Emerson shall be relieved of all, and shall have no further, obligations to provide the\npayments or benefits specified in this Section 8 (unless otherwise required by law).\nThis Agreement is deemed to be entered in the State of Missouri and, without regard to conflict of laws principles, shall be interpreted in accordance\nwith and governed by the laws of the State of Missouri. Emerson and you agree that any legal action or proceeding with respect to this Agreement shall\nbe brought and determined in the courts of the County of St. Louis, State of Missouri or of the United States of America for the Eastern District of\nMissouri and that you submit to the jurisdiction of such courts with respect to any such action or proceeding.\nYou acknowledge that Emerson has advised you to consult with an attorney if you need assistance in reviewing or understanding this Agreement or any\nof the documents referenced in this Agreement, including the Release Agreement.\n6\nPlease confirm that the foregoing represents your understanding of our entire agreement by signing in the space provided below. Once again, I thank you\nfor your many years of dedicated service to Emerson, and I wish you the very best in your retirement.\nSincerely,\n/s/ David N. Farr\nDavid N. Farr\nChairman & Chief Executive Officer\nACCEPTED AND AGREED TO THIS 2nd\nDAY OF (Month/Year) October 2018\n/s/ Edward L. Monser\nEdward L. Monser\n7\nEXHIBIT A – RELEASE AGREEMENT\nThis Release Agreement is Exhibit A to that certain Letter Agreement by and between Emerson Electric Co. (“Employer”) and Edward L. Monser\n(“Employee”) dated October 1, 2018 the (“Letter Agreement”). In consideration of the mutual promises and covenants contained in the Letter\nAgreement and herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby\nagree as follows:\n1. Employment. Employee was previously employed by Employer. The employment of Employee with Employer has ended as a result of\nEmployee’s retirement from Employer effective October 1, 2018.\n2. Release. For and in consideration of the covenants, terms and conditions set forth in the Letter Agreement and this Release Agreement,\nEmployee, for himself and his heirs, to the fullest extent permitted by law, agrees to and does hereby waive, covenant not to sue, releases, and forever\ndischarges Employer, and each and every one of Employer’s parent, subsidiary and other affiliated entities (the “Emerson Entities”), and their respective\nagents, employees, officers, directors, stockholders, managers, members, successors, predecessors, contractors, attorneys, external counsel, agents and\nassigns (collectively referred to as “Released Parties”), from and with respect to all matters, claims, charges, demands, damages, causes of action, debts,\nliabilities, controversies, judgments, and suits of every kind and nature whatsoever, foreseen or unforeseen, known or unknown, arising prior to the date\nthis Release Agreement becomes effective and including, but not limited to, those in any way related to Employee and/or Employee’s separation from\nemployment. This release by Employee of Released Parties expressly includes, but is not limited to, any claim or cause of action against Released\nParties related to or arising out of tort, contract, equity, implied covenant, invasion of privacy, defamation, personal injury, wrongful discharge,\nemotional distress, discrimination (whether based on race, sex, age, color, national origin, religion, disability, or any other class protected by law),\nharassment, retaliation, claims for workers’ compensation benefits, claims for unpaid wages, any claim under the Age Discrimination in Employment\nAct, 29 U.S.C . §621 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C . §2000e et seq., the Civil Rights Act of 1866, 42 U.S.C . §1981, the\nAmericans With Disabilities Act, 42 U.S.C . §12101, et seq., the Employee Retirement Income Security Act of 1974, 29 U.S.C . §1001, et seq., the\nFamily Medical Leave Act, 29 U.S.C . §2601 et seq., the Fair Labor Standards Act of 1938, 29 U.S.C . §201 et seq., the Missouri Human Rights Act, Mo.\nRev. Stat. §213.010 et seq.; the Missouri Equal Pay for Women Act, Mo. Rev. Stat. §290.400 et seq., the Missouri Service Letter statute Mo. Rev. Stat.\n§290.14, the Missouri Minimum Wage Law, Mo. Rev. Stat. §290.010 et seq., the Missouri Wage Payment Law, Mo. Rev. Stat. §290.010 et seq., any\nclaim under common law, and any claim under any federal, state or local statute, regulation, constitution, order or executive order. This release also\nexpressly includes, but is not limited to, any claim for attorneys’ fees or costs. Employee affirms and warrants that he has made no charge, claim,\ncomplaint, or otherwise initiated action against Employer in any government agency, court or other forum and that no such matter is pending. Employee\nfurther affirms and warrants that Employee has not been retaliated against for reporting, or taking any actions, pertaining to allegations of wrongdoing\nby Employer or its officers and employees. Employee avers and agrees that he has no personal knowledge of any employee, officer or director of\nEmployer engaging in any act related to the performance of their duties at or for Employer, which Employee knows or believes to be illegal and\nEmployee acknowledges that he has never complained of any unlawful conduct by Employer. Employee hereby releases and relinquishes any and all\nrights to employment, reinstatement and any right to future employment with Employer or the Emerson Entities. Employee also waives and\nA-1\nreleases any right or ability to be a class or collective action representative or to otherwise participate in any putative or certified class, collective or\nmulti- party action or proceeding based on a claim in which Employer or any one or more Released Parties is a party. Notwithstanding the foregoing,\nEmployee is not waiving any right to enforce any term or provision of the Letter Agreement, or any claims solely relating to the validity of this Release\nAgreement under the Age Discrimination in Employment Act.\n3. Waiver of ADEA Rights. By execution of this Release Agreement, Employee expressly waives any and all rights or claims arising under the\nAge Discrimination in Employment Act of 1967 (“ADEA”) and\n(a) Employee has read this Agreement, and the Letter Agreement, in their entirety and understands all of their terms; and\n(b) Employee acknowledges and agrees that the waiver of his rights or claims arising under the ADEA is in exchange for the consideration\nprovided in the Letter Agreement which, Employee agrees, is beyond that to which Employee is otherwise entitled; and\n(c) Employee acknowledges that Employer has, and does, hereby expressly advise him to consult with an attorney of his choosing, at his\nown expense, prior to executing this Release Agreement and the Letter Agreement; and\n(d) Employee agrees that he has been given a period of not less than forty- five (45) days from receipt of this document within which to\nconsider this Release Agreement and the Letter Agreement, and that if Employee elects to sign this Release Agreement prior to the expiration of\nthe 45-day consideration period specified herein, he does so knowingly and voluntarily and with full opportunity to consult with an attorney; and\n(e) Employee acknowledges he has been advised by Employer that he is entitled to revoke this Release Agreement (in the event he\nexecutes this Release Agreement) within seven (7) days after executing it and that this Agreement will not and does not become effective or\nenforceable until the seven (7) day revocation period has expired; and\n(f) The parties agree that should Employee exercise his right to revoke the waiver under this paragraph 3, this entire Release Agreement\nand Letter Agreement, and their obligations, are null and void and of no effect and, notwithstanding any other provision of this Release Agreement\nor the Letter Agreement to the contrary, no payment or other consideration shall be due, owing, paid or provided until the seven (7) day revocation\nperiod has expired without revocation by Employee. Notice of Employee’s decision to revoke the waiver may be sent to Emerson’s Senior Vice\nPresident, Secretary and General Counsel by fax (at 314-553-3205), email to sara.bosco@emerson.com or hand-delivery.\n4. Remedies. Without limiting the remedies available to Employer for any breach of this Release Agreement, Employee agrees that any breach\nof either this Release Agreement or the Letter Agreement will result in immediate forfeiture of any future payments to be made to, or benefits to be\nprovided to, Employee and all other remedies and relief as specifically set forth further in the Letter Agreement shall be available to Employer.\n5. Successors and Assigns. This Release Agreement binds, and inures to the benefit of, the parties’ respective heirs, administrators,\nrepresentatives, executors, successors, and assigns.\nA-2\n6. Review by Employee. Employee acknowledges that he has read the provisions of this Release Agreement, that Employee was advised of his\nright to review this Release Agreement with an attorney at his expense, and that Employee fully understands the meaning and intent of this Release\nAgreement and agrees to all of its terms.\nEMPLOYEE\n/s/ Edward L. Monser\nEdward L. Monser\nDate: October 2, 2018\nA-3\nEXHIBIT B - OFFICER RESIGNATION\nI, Edward L. Monser, do hereby submit my resignation, effective October 1, 2018, from my position as President of Emerson Electric Co., as well as\nfrom any other positions (if any) I may hold with any subsidiaries or affiliates of Emerson.\n/s/ Edward L. Monser\nEdward L. Monser
+a3ba9b969b390ce8ec0f62dde48f5a1f.pdf	effective_date jurisdiction party term	EX-99.(E)(2) 3 dex99e2.htm AMENDED & RESTATED CONFIDENTIALITY AGREEMENT\nEXHIBIT (e)(2)\nAMENDED AND RESTATED\nCONFIDENTIALITY AGREEMENT\nThis Amended and Restated Confidentiality Agreement (this “Agreement”) dated May 22, 2007 (the “Effective Date”), is entered into by and\namong QIAGEN N.V. a corporation formed under the laws of The Netherlands (“QIAGEN”), with offices at Spoorstraat 50, 5911 KJ Venlo, The\nNetherlands, and Digene Corporation, a Delaware corporation (“Digene”), with offices at 1201 Clopper Road, Gaithersburg, MD 20878, and amends\nand restates that certain Confidentiality Agreement entered into by and among QIAGEN and Digene on May 7, 2007.\nQIAGEN, on behalf of itself and its subsidiaries, and Digene, on behalf of itself and its subsidiaries (the “Parties”) intend to explore a possible\nnegotiated transaction, and in connection therewith each Party expects to make available certain financial, operating and business information about\nitself to the other Party. In this Agreement, the Party disclosing Evaluation Material (as defined below) is referred to as the “Disclosing Party” and\nthe Party receiving Evaluation Material is referred to as the “Recipient.” As a condition to the Disclosing Party furnishing such information to the\nRecipient and subsidiaries and their respective directors, officers, employees, agents or advisors (including, without limitation, affiliates, attorneys,\naccountants, consultants, bankers and financial advisors) (collectively, “Representatives”), the Recipient agrees to treat all Evaluation Material in\naccordance with the provisions of this Agreement and to take or abstain from taking certain other actions hereinafter set forth.\nThe term “Evaluation Material” shall mean all information relating, directly or indirectly, to the Disclosing Party or the business, products and\nservices, technologies, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the\nDisclosing Party (whether prepared by the Disclosing Party, its advisors or otherwise), which is delivered, disclosed or furnished by or on behalf of\nthe Disclosing Party to the Recipient or its Representatives for purposes of the Recipient considering the possible transaction the subject of this\nAgreement, before, on or after the date hereof, regardless of the manner in which it is delivered, disclosed or furnished or which the Recipient or its\nRepresentatives otherwise learn or obtain, through observation or through analysis of such information, and shall also be deemed to include all notes,\nanalyses, compilations, studies, forecasts, projects, interpretations or other documents prepared by the Recipient or its Representatives which\ncontain, reflect or are based upon, in whole or in part, any such information. The term “documents” shall include, without limitation, any writing,\nletter, memorandum (internal or otherwise), telex, cable, facsimile, tape, disk drive, diskette, CD-ROM, e-mail transmission or other recording or\nmemoralization, chart, graph, blueprint, picture or financial statements or data. The term Evaluation Material does not include information which the\nRecipient can demonstrate (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its\nRepresentatives in breach of the terms hereof, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf\nof the Disclosing Party pursuant hereto; provided that the source of such information was not known by the Recipient to be bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with\nrespect to such information, or (iii) becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or\nany of its Representatives; provided that such source is not known by the Recipient to be bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with respect to such information.\nThe Recipient and its Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible negotiated transaction\nbetween the Parties, shall keep the Evaluation Material confidential and shall not disclose any of the Evaluation Material in any manner whatsoever;\nprovided,\nhowever, that (i) the Recipient may make any disclosure of such information to which the Disclosing Party gives its prior written consent and (ii) any\nof such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of evaluating a\npossible negotiated transaction between the Parties and who agree to keep such information confidential and agree to be bound by the terms hereof\nto the same extent as if they were parties hereto (which agreement need not be in writing). In any event, the Recipient shall be responsible for any\nbreach of this Agreement by any of its Representatives, and the Recipient agrees, at its sole expense, to take all reasonable measures (including but\nnot limited to court proceedings) to restrain its Representatives from prohibited or unauthorized disclosure or use of the Evaluation Material.\nWithout the prior written consent of the Disclosing Party, the Recipient and its Representatives will not disclose to any other person the\nexistence of this Agreement, the fact that the Evaluation Material has been made available to the Recipient, or the fact that discussions or\nnegotiations are taking place concerning a possible transaction involving the Parties or any of the terms, conditions or other facts with respect thereto\n(including the status thereof); provided that the Recipient may make such disclosure if it has received the advice of its counsel that such disclosure\nmust be made by the Recipient in order that it not commit a violation of any law; and provided, further, that the Recipient has given the Disclosing\nParty prompt prior written notice of the Recipient’s intent to make such disclosure and cooperated with the Disclosing Party if it attempts to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded to such disclosure. The term “person” as used\nin this Agreement shall be broadly interpreted to include the media and any corporation, company, partnership, joint venture, group, limited liability\ncompany other entity or individual.\nIn the event that a Party decides not to proceed with the possible transaction with the other Party, it will promptly inform the other Party of that\ndecision. In that event, or at any time upon the Disclosing Party’s request, the Recipient shall promptly return to the Disclosing Party all Evaluation\nMaterial, including all written or otherwise tangible material containing or reflecting any information contained in the Evaluation Material (whether\nprepared by the Disclosing Party, its Representatives or otherwise), and will not retain any copies, extracts or other reproductions in whole or in part\nof such material. All documents, memoranda, notes and other writing whatsoever prepared by the Recipient or its Representatives based on the\ninformation contained in the Evaluation Material shall be destroyed. The Recipient shall certify such destruction to the Disclosing Party by providing\na certificate signed by an officer of the Recipient confirming destruction of materials as contemplated by this paragraph.\nThe Recipient understands and acknowledges that any and all information contained in the Evaluation Material is being provided without any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. Neither the Disclosing Party nor any of\nits Representatives shall have any liability to the Recipient or any of its Representatives from the use of the Evaluation Material or any errors therein\nor omissions therefrom. It is understood that the scope of any representations and warranties to be given by each Party will be negotiated along with\nother terms and conditions in arriving at a mutually acceptable form of definitive agreement should discussions between the Parties progress to such\na point.\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that they\nhave a commonality of interest with respect to such matters and it is the Parties’ desire, intention and mutual understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection\n2\nunder the attorney-client privilege, work product doctrine and other applicable privilege shall remain entitled to such protection under these\nprivileges, this Agreement, and under the joint defense doctrine.\nEach Party hereby acknowledges that it is aware (and that its Representatives who are apprised of this matter have been or will be advised) that\nthe United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling\nsecurities of such company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable\nthat such person is likely to purchase or sell such securities.\nUntil the earliest of (i) the execution by the Parties of a definitive agreement regarding the acquisition of one by the other, (ii) an acquisition of\neither Party by a third party, or (iii) one year after the date of this Agreement, each Party agrees not to initiate or maintain contact (except for those\ncontacts made in the ordinary course of business) with any officer, director or employee of the other Party, other than those specifically designated as\ncontacts for a possible transaction by each Party, regarding that Party’s business, operations, prospects or finances, except with the express\npermission of that Party. Without the prior written consent of the other Party, each Party agrees not to solicit for employment or hire any of the\ncurrent employees of the other Party until the earlier of (a) execution by the Parties of a definitive agreement; or (b) termination, in writing, of\ndiscussions under this Agreement, and, in each case of (a) or (b) plus a period of one year thereafter. General solicitation activities not directed to\nemployees of the other Party shall not be a breach of this Paragraph.\nEach Party hereby agrees that, until one year after the date of this Agreement, unless such shall have been specifically agreed in writing by the\nother Party, neither Party nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”), each an “Affiliate”) will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or\ncause or participate in or in any way advise, assist or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise)\nto effect or participate in (i) any acquisition of any securities of the other Party or any of its Affiliates or (ii) any tender or exchange offer, merger or\nother business combination involving the other Party or any of its Affiliates; (b) otherwise act, alone or in concert with others, to seek to control or\ninfluence the management, Board of Directors or policies of the other Party or any of its Affiliates; or (c) enter into any arrangements with any third\nparty with respect to any of the foregoing. The foregoing obligations will be automatically revised, during the period of time set forth above, to be\nequal to provisions in any confidentiality agreement entered into by either Party with a third party regarding a similar subject matter, but containing\nless restrictive obligations. Such automatic revision will occur upon written notice from one Party to the other Party containing the new provisions,\nwhich notice must be given promptly following entry into such agreement with a third party. The foregoing obligations, including the revisions to the\ncovenant contemplated by the preceding sentence, shall automatically terminate on the public announcement by a third party of a tender or exchange\noffer by, or merger or other business combination with, or any other transaction intended to have, or having, a similar effect, involving either Party or\nany of its Affiliates; provided that neither Party nor any of its respective Affiliates was directly or indirectly involved in such transaction with such\nthird party. As of the date hereof, Digene has not entered into any agreement with a third party that creates obligations relating to subject matter\nsubstantially similar to that of this paragraph that are any less restrictive than the provisions hereof.\nThe Parties agree that unless and until a final definitive agreement regarding a transaction between the Parties has been executed and delivered,\nneither Party will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for the\nmatters specifically agreed to herein. Each Party reserves the right, in its sole discretion, to reject any and all proposals made by the other Party or its\nRepresentatives with regard to a transaction between the Parties, and to terminate discussions and negotiations with the other Party at any time. The\nRecipient\n3\nacknowledges and agrees that the Disclosing Party has not granted to the Recipient any license, copyright or similar right with respect to any of the\nEvaluation Material.\nIt is understood and agreed that money damages would not be sufficient remedy for any breach of this Agreement and that the Disclosing Party\nshall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach. Each Recipient further agrees to\nwaive any requirement for the security or posting of any bond in connection with such remedy. Such remedy shall not be deemed to be the exclusive\nremedy for breach of this agreement but shall be in addition to all other remedies available at law or equity to the Disclosing Party.\nIn the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, nonappealable order that a Party\nhas breached this Agreement, then such party shall be liable and pay to the non-breaching Party the reasonable legal fees such non-breaching Party\nhas incurred in connection with such litigation, including any appeal therefrom.\nThis Agreement supersedes the Confidentiality Agreement between the Parties dated April 5, 2007 and may be modified or waived only by a\nseparate writing signed by the Parties expressly so modifying or waiving such agreements. It is understood and agreed that no failure or delay by a\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or further exercise thereof or the exercise of any right, power or privilege hereunder. The invalidity or unenforceability of any provision of\nthis Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect.\nThis Agreement is for the benefit of the Parties and shall be governed and construed in accordance with the laws of the State of Delaware\nUSA.\nThis Agreement may not be assigned in whole or in part by either Party hereto without the prior written consent of the other Party.\nFor the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed to be an\noriginal, and both of which taken together, shall constitute one agreement binding on both parties.\n4\nIN WITNESS WHEREOF, the duly authorized representatives of the Parties have executed this Agreement as of the day and year first set forth\nabove.\nQIAGEN N.V.\nBy: /s/ Peer M. Schatz\nName: Peer M. Schatz\nTitle: President and Chief Executive Officer\nDIGENE CORPORATION\nBy: /s/ Joseph P. Slattery\nName: Joseph P. Slattery\nTitle: Chief Financial Officer\n5	EX-99.(E)(2) 3 dex99e2.htm AMENDED & RESTATED CONFIDENTIALITY AGREEMENT\nEXHIBIT (e)(2)\nAMENDED AND RESTATED\nCONFIDENTIALITY AGREEMENT\nThis Amended and Restated Confidentiality Agreement (this “Agreement”) dated May 22, 2007 (the “Effective Date”), is entered into by and\namong QIAGEN N.V. a corporation formed under the laws of The Netherlands (“QIAGEN”), with offices at Spoorstraat 50, 5911 KJ Venlo, The\nNetherlands, and Digene Corporation, a Delaware corporation (“Digene”), with offices at 1201 Clopper Road, Gaithersburg, MD 20878, and amends\nand restates that certain Confidentiality Agreement entered into by and among QIAGEN and Digene on May 7, 2007.\nQIAGEN, on behalf of itself and its subsidiaries, and Digene, on behalf of itself and its subsidiaries (the “Parties”) intend to explore a possible\nnegotiated transaction, and in connection therewith each Party expects to make available certain financial, operating and business information about\nitself to the other Party. In this Agreement, the Party disclosing Evaluation Material (as defined below) is referred to as the “Disclosing Party” and\nthe Party receiving Evaluation Material is referred to as the “Recipient.” As a condition to the Disclosing Party furnishing such information to the\nRecipient and subsidiaries and their respective directors, officers, employees, agents or advisors (including, without limitation, affiliates, attorneys,\naccountants, consultants, bankers and financial advisors) (collectively, “Representatives”), the Recipient agrees to treat all Evaluation Material in\naccordance with the provisions of this Agreement and to take or abstain from taking certain other actions hereinafter set forth.\nThe term “Evaluation Material” shall mean all information relating, directly or indirectly, to the Disclosing Party or the business, products and\nservices, technologies, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the\nDisclosing Party (whether prepared by the Disclosing Party, its advisors or otherwise), which is delivered, disclosed or furnished by or on behalf of\nthe Disclosing Party to the Recipient or its Representatives for purposes of the Recipient considering the possible transaction the subject of this\nAgreement, before, on or after the date hereof, regardless of the manner in which it is delivered, disclosed or furnished or which the Recipient or its\nRepresentatives otherwise learn or obtain, through observation or through analysis of such information, and shall also be deemed to include all notes,\nanalyses, compilations, studies, forecasts, projects, interpretations or other documents prepared by the Recipient or its Representatives which\ncontain, reflect or are based upon, in whole or in part, any such information. The term “documents” shall include, without limitation, any writing,\nletter, memorandum (internal or otherwise), telex, cable, facsimile, tape, disk drive, diskette, CD-ROM, e-mail transmission or other recording or\nmemoralization, chart, graph, blueprint, picture or financial statements or data. The term Evaluation Material does not include information which the\nRecipient can demonstrate (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its\nRepresentatives in breach of the terms hereof, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf\nof the Disclosing Party pursuant hereto; provided that the source of such information was not known by the Recipient to be bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with\nrespect to such information, or (iii) becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or\nany of its Representatives; provided that such source is not known by the Recipient to be bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with respect to such information.\nThe Recipient and its Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible negotiated transaction\nbetween the Parties, shall keep the Evaluation Material confidential and shall not disclose any of the Evaluation Material in any manner whatsoever;\nprovided,\nhowever, that (i) the Recipient may make any disclosure of such information to which the Disclosing Party gives its prior written consent and (ii) any\nof such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of evaluating a\npossible negotiated transaction between the Parties and who agree to keep such information confidential and agree to be bound by the terms hereof\nto the same extent as if they were parties hereto (which agreement need not be in writing). In any event, the Recipient shall be responsible for any\nbreach of this Agreement by any of its Representatives, and the Recipient agrees, at its sole expense, to take all reasonable measures (including but\nnot limited to court proceedings) to restrain its Representatives from prohibited or unauthorized disclosure or use of the Evaluation Material.\nWithout the prior written consent of the Disclosing Party, the Recipient and its Representatives will not disclose to any other person the\nexistence of this Agreement, the fact that the Evaluation Material has been made available to the Recipient, or the fact that discussions or\nnegotiations are taking place concerning a possible transaction involving the Parties or any of the terms, conditions or other facts with respect thereto\n(including the status thereof); provided that the Recipient may make such disclosure if it has received the advice of its counsel that such disclosure\nmust be made by the Recipient in order that it not commit a violation of any law; and provided, further, that the Recipient has given the Disclosing\nParty prompt prior written notice of the Recipient’s intent to make such disclosure and cooperated with the Disclosing Party if it attempts to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded to such disclosure. The term “person” as used\nin this Agreement shall be broadly interpreted to include the media and any corporation, company, partnership, joint venture, group, limited liability\ncompany other entity or individual.\nIn the event that a Party decides not to proceed with the possible transaction with the other Party, it will promptly inform the other Party of that\ndecision. In that event, or at any time upon the Disclosing Party’s request, the Recipient shall promptly return to the Disclosing Party all Evaluation\nMaterial, including all written or otherwise tangible material containing or reflecting any information contained in the Evaluation Material (whether\nprepared by the Disclosing Party, its Representatives or otherwise), and will not retain any copies, extracts or other reproductions in whole or in part\nof such material. All documents, memoranda, notes and other writing whatsoever prepared by the Recipient or its Representatives based on the\ninformation contained in the Evaluation Material shall be destroyed. The Recipient shall certify such destruction to the Disclosing Party by providing\na certificate signed by an officer of the Recipient confirming destruction of materials as contemplated by this paragraph.\nThe Recipient understands and acknowledges that any and all information contained in the Evaluation Material is being provided without any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. Neither the Disclosing Party nor any of\nits Representatives shall have any liability to the Recipient or any of its Representatives from the use of the Evaluation Material or any errors therein\nor omissions therefrom. It is understood that the scope of any representations and warranties to be given by each Party will be negotiated along with\nother terms and conditions in arriving at a mutually acceptable form of definitive agreement should discussions between the Parties progress to such\na point.\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that they\nhave a commonality of interest with respect to such matters and it is the Parties” desire, intention and mutual understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection\n2\nunder the attorney-client privilege, work product doctrine and other applicable privilege shall remain entitled to such protection under these\nprivileges, this Agreement, and under the joint defense doctrine.\nEach Party hereby acknowledges that it is aware (and that its Representatives who are apprised of this matter have been or will be advised) that\nthe United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling\nsecurities of such company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable\nthat such person is likely to purchase or sell such securities.\nUntil the earliest of (i) the execution by the Parties of a definitive agreement regarding the acquisition of one by the other, (ii) an acquisition of\neither Party by a third party, or (iii) one year after the date of this Agreement, each Party agrees not to initiate or maintain contact (except for those\ncontacts made in the ordinary course of business) with any officer, director or employee of the other Party, other than those specifically designated as\ncontacts for a possible transaction by each Party, regarding that Party’s business, operations, prospects or finances, except with the express\npermission of that Party. Without the prior written consent of the other Party, each Party agrees not to solicit for employment or hire any of the\ncurrent employees of the other Party until the earlier of (a) execution by the Parties of a definitive agreement; or (b) termination, in writing, of\ndiscussions under this Agreement, and, in each case of (a) or (b) plus a period of one year thereafter. General solicitation activities not directed to\nemployees of the other Party shall not be a breach of this Paragraph.\nEach Party hereby agrees that, until one year after the date of this Agreement, unless such shall have been specifically agreed in writing by the\nother Party, neither Party nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”), each an “Affiliate”) will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or\ncause or participate in or in any way advise, assist or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise)\nto effect or participate in (i) any acquisition of any securities of the other Party or any of its Affiliates or (ii) any tender or exchange offer, merger or\nother business combination involving the other Party or any of its Affiliates; (b) otherwise act, alone or in concert with others, to seek to control or\ninfluence the management, Board of Directors or policies of the other Party or any of its Affiliates; or (c) enter into any arrangements with any third\nparty with respect to any of the foregoing. The foregoing obligations will be automatically revised, during the period of time set forth above, to be\nequal to provisions in any confidentiality agreement entered into by either Party with a third party regarding a similar subject matter, but containing\nless restrictive obligations. Such automatic revision will occur upon written notice from one Party to the other Party containing the new provisions,\nwhich notice must be given promptly following entry into such agreement with a third party. The foregoing obligations, including the revisions to the\ncovenant contemplated by the preceding sentence, shall automatically terminate on the public announcement by a third party of a tender or exchange\noffer by, or merger or other business combination with, or any other transaction intended to have, or having, a similar effect, involving either Party or\nany of its Affiliates; provided that neither Party nor any of its respective Affiliates was directly or indirectly involved in such transaction with such\nthird party. As of the date hereof, Digene has not entered into any agreement with a third party that creates obligations relating to subject matter\nsubstantially similar to that of this paragraph that are any less restrictive than the provisions hereof.\nThe Parties agree that unless and until a final definitive agreement regarding a transaction between the Parties has been executed and delivered,\nneither Party will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for the\nmatters specifically agreed to herein. Each Party reserves the right, in its sole discretion, to reject any and all proposals made by the other Party or its\nRepresentatives with regard to a transaction between the Parties, and to terminate discussions and negotiations with the other Party at any time. The\nRecipient\nacknowledges and agrees that the Disclosing Party has not granted to the Recipient any license, copyright or similar right with respect to any of the\nEvaluation Material.\nIt is understood and agreed that money damages would not be sufficient remedy for any breach of this Agreement and that the Disclosing Party\nshall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach. Each Recipient further agrees to\nwaive any requirement for the security or posting of any bond in connection with such remedy. Such remedy shall not be deemed to be the exclusive\nremedy for breach of this agreement but shall be in addition to all other remedies available at law or equity to the Disclosing Party.\nIn the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, nonappealable order that a Party\nhas breached this Agreement, then such party shall be liable and pay to the non-breaching Party the reasonable legal fees such non-breaching Party\nhas incurred in connection with such litigation, including any appeal therefrom.\nThis Agreement supersedes the Confidentiality Agreement between the Parties dated April 5, 2007 and may be modified or waived only by a\nseparate writing signed by the Parties expressly so modifying or waiving such agreements. It is understood and agreed that no failure or delay by a\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or further exercise thereof or the exercise of any right, power or privilege hereunder. The invalidity or unenforceability of any provision of\nthis Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect.\nThis Agreement is for the benefit of the Parties and shall be governed and construed in accordance with the laws of the State of Delaware\nUSA.\nThis Agreement may not be assigned in whole or in part by either Party hereto without the prior written consent of the other Party.\nFor the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed to be an\noriginal, and both of which taken together, shall constitute one agreement binding on both parties.\n4\nIN WITNESS WHEREOF, the duly authorized representatives of the Parties have executed this Agreement as of the day and year first set forth\nabove.\nQIAGEN N.V.\nBy: /s/ Peer M. Schatz\nName: Peer M. Schatz\nTitle: President and Chief Executive Officer\nDIGENE CORPORATION\nBy: /s/ Joseph P. Slattery\nName: Joseph P. Slattery\nTitle: Chief Financial Officer	EX-99.(E)(2) 3 dex99e2.htm AMENDED & RESTATED CONFIDENTIALITY AGREEMENT\nEXHIBIT (e)(2)\nAMENDED AND RESTATED\nCONFIDENTIALITY AGREEMENT\nThis Amended and Restated Confidentiality Agreement (this "Agreement") dated May 22, 2007 (the "Effective Date"), is entered into by and\namong QIAGEN N.V. a corporation formed under the laws of The Netherlands ("QIAGEN"), with offices at Spoorstraat 50, 5911 KJ Venlo, The\nNetherlands, and Digene Corporation, a Delaware corporation ("Digene"), with offices at 1201 Clopper Road, Gaithersburg, MD 20878, and amends\nand restates that certain Confidentiality Agreement entered into by and among QIAGEN and Digene on May 7, 2007.\nQIAGEN, on behalf of itself and its subsidiaries, and Digene, on behalf of itself and its subsidiaries (the "Parties") intend to explore a possible\nnegotiated transaction, and in connection therewith each Party expects to make available certain financial, operating and business information about\nitself to the other Party. In this Agreement, the Party disclosing Evaluation Material (as defined below) is referred to as the "Disclosing Party" and\nthe Party receiving Evaluation Material is referred to as the "Recipient." As a condition to the Disclosing Party furnishing such information to the\nRecipient and subsidiaries and their respective directors, officers, employees, agents or advisors (including, without limitation, affiliates, attorneys,\naccountants, consultants, bankers and financial advisors) (collectively, "Representatives"), the Recipient agrees to treat all Evaluation Material\nin\naccordance with the provisions of this Agreement and to take or abstain from taking certain other actions hereinafter set forth.\nThe term "Evaluation Material" shall mean all information relating, directly or indirectly, to the Disclosing Party or the business, products and\nservices, technologies, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the\nDisclosing Party (whether prepared by the Disclosing Party, its advisors or otherwise), which is delivered, disclosed or furnished by or on behalf of\nthe Disclosing Party to the Recipient or its Representatives for purposes of the Recipient considering the possible transaction the subject of this\nAgreement, before, on or after the date hereof, regardless of the manner in which it is delivered, disclosed or furnished or which the Recipient or its\nRepresentatives otherwise learn or obtain, through observation or through analysis of such information, and shall also be deemed to include all notes,\nanalyses, compilations, studies, forecasts, projects, interpretations or other documents prepared by the Recipient or its Representatives which\ncontain, reflect or are based upon, in whole or in part, any such information. The term "documents" shall include, without limitation, any writing,\nletter, memorandum (internal or otherwise), telex, cable, facsimile, tape, disk drive, diskette, CD-ROM, e-mail transmission or other recording or\nmemoralization, chart, graph, blueprint, picture or financial statements or data. The term Evaluation Material does not include information which\nthe\nRecipient can demonstrate (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its\nRepresentatives in breach of the terms hereof, (ii) was within the Recipient's possession prior to its being furnished to the Recipient by or on behalf\nof the Disclosing Party pursuant hereto; provided that the source of such information was not known by the Recipient to be bound by\na\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with\nrespect to such information, or (iii) becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or\nany of its Representatives; provided that such source is not known by the Recipient to be bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with respect to such information.\nThe Recipient and its Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible negotiated transaction\nbetween the Parties, shall keep the Evaluation Material confidential and shall not disclose any of the Evaluation Material in any manner whatsoever;\nprovided,\nhowever, that (i) the Recipient may make any disclosure of such information to which the Disclosing Party gives its prior written consent and (ii) any\nof\nsuch information may be disclosed to the Recipient's Representatives who need to know such information for the sole purpose of evaluating a\npossible negotiated transaction between the Parties and who agree to keep such information confidential and agree to be bound by the terms hereof\nto the same extent as if they were parties hereto (which agreement need not be in writing). In any event, the Recipient shall be responsible for any\nbreach of this Agreement by any of its Representatives, and the Recipient agrees, at its sole expense, to take all reasonable measures (including but\nnot limited to court proceedings) to restrain its Representatives from prohibited or unauthorized disclosure or use of the Evaluation Material.\nWithout the prior written consent of the Disclosing Party, the Recipient and its Representatives will not disclose to any other person\nthe\nexistence of this Agreement, the fact that the Evaluation Material has been made available to the Recipient, or the fact that discussions or\nnegotiations are taking place concerning a possible transaction involving the Parties or any of the terms, conditions or other facts with respect thereto\n(including the status thereof); provided that the Recipient may make such disclosure if it has received the advice of its counsel that such disclosure\nmust be made by the Recipient in order that it not commit a violation of any law; and provided, further, that the Recipient has given the Disclosing\nParty prompt prior written notice of the Recipient's intent to make such disclosure and cooperated with the Disclosing Party if it attempts to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded to such disclosure. The term "person" as used\nin this Agreement shall be broadly interpreted to include the media and any corporation, company, partnership, joint venture, group, limited liability\ncompany other entity or individual.\nIn the event that a Party decides not to proceed with the possible transaction with the other Party, it will promptly inform the other Party of that\ndecision. In that event, or at any time upon the Disclosing Party's request, the Recipient shall promptly return to the Disclosing Party all Evaluation\nMaterial, including all written or otherwise tangible material containing or reflecting any information contained in the Evaluation Material (whether\nprepared by the Disclosing Party, its Representatives or otherwise), and will not retain any copies, extracts or other reproductions in whole or in part\nof such material. All documents, memoranda, notes and other writing whatsoever prepared by the Recipient or its Representatives based on the\ninformation contained in the Evaluation Material shall be destroyed. The Recipient shall certify such destruction to the Disclosing Party by providing\na certificate signed by an officer of the Recipient confirming destruction of materials as contemplated by this paragraph.\nThe Recipient understands and acknowledges that any and all information contained in the Evaluation Material is being provided without any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. Neither the Disclosing Party nor any of\nits Representatives shall have any liability to the Recipient or any of its Representatives from the use of the Evaluation Material or any errors therein\nor omissions therefrom. It is understood that the scope of any representations and warranties to be given by each Party will be negotiated along with\nother terms and conditions in arriving at a mutually acceptable form of definitive agreement should discussions between the Parties progress to such\na point.\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that they\nhave a commonality of interest with respect to such matters and it is the Parties' desire, intention and mutual understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection\n2\nunder the attorney-client privilege, work product doctrine and other applicable privilege shall remain entitled to such protection under these\nprivileges, this Agreement, and under the joint defense doctrine.\nEach Party hereby acknowledges that it is aware (and that its Representatives who are apprised of this matter have been or will be advised) that\nthe United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling\nsecurities of such company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable\nthat such person is likely to purchase or sell such securities.\nUntil the earliest of (i) the execution by the Parties of a definitive agreement regarding the acquisition of one by the other, (ii) an acquisition of\neither Party by a third party, or (iii) one year after the date of this Agreement, each Party agrees not to initiate or maintain contact (except for those\ncontacts made in the ordinary course of business) with any officer, director or employee of the other Party, other than those specifically designated as\ncontacts for a possible transaction by each Party, regarding that Party's business, operations, prospects or finances, except with the express\npermission of that Party. Without the prior written consent of the other Party, each Party agrees not to solicit for employment or hire any of the\ncurrent employees of the other Party until the earlier of (a) execution by the Parties of a definitive agreement; or (b) termination, in writing, of\ndiscussions under this Agreement, and, in each case of (a) or (b) plus a period of one year thereafter. General solicitation activities not directed to\nemployees of the other Party shall not be a breach of this Paragraph.\nEach Party hereby agrees that, until one year after the date of this Agreement, unless such shall have been specifically agreed in writing by the\nother Party, neither Party nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the "Exchange\nAct"), each an "Affiliate") will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect,\nor\ncause\nor\nparticipate\nin\nor\nin\nany\nway\nadvise,\nassist\nor\nencourage\nany\nother\nperson\nto\neffect\nor\nseek,\noffer\nor\npropose\n(whether\npublicly\nor\notherwise)\nto effect or participate in (i) any acquisition of any securities of the other Party or any of its Affiliates or (ii) any tender or exchange offer, merger\nor\nother business combination involving the other Party or any of its Affiliates; (b) otherwise act, alone or in concert with others, to seek to control or\ninfluence the management, Board of Directors or policies of the other Party or any of its Affiliates; or (c) enter into any arrangements with any third\nparty with respect to any of the foregoing. The foregoing obligations will be automatically revised, during the period of time set forth above, to be\nequal to provisions in any confidentiality agreement entered into by either Party with a third party regarding a similar subject matter, but containing\nless restrictive obligations. Such automatic revision will occur upon written notice from one Party to the other Party containing the new provisions,\nwhich notice must be given promptly following entry into such agreement with a third party. The foregoing obligations, including the revisions to the\ncovenant contemplated by the preceding sentence, shall automatically terminate on the public announcement by a third party of a tender or exchange\noffer by, or merger or other business combination with, or any other transaction intended to have, or having, a similar effect, involving either Party\nor\nany of its Affiliates; provided that neither Party nor any of its respective Affiliates was directly or indirectly involved in such transaction with such\nthird party. As of the date hereof, Digene has not entered into any agreement with a third party that creates obligations relating to subject matter\nsubstantially similar to that of this paragraph that are any less restrictive than the provisions hereof.\nThe Parties agree that unless and until a final definitive agreement regarding a transaction between the Parties has been executed and delivered,\nneither Party will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for the\nmatters specifically agreed to herein. Each Party reserves the right, in its sole discretion, to reject any and all proposals made by the other Party or its\nRepresentatives with regard to a transaction between the Parties, and to terminate discussions and negotiations with the other Party at any time. The\nRecipient\n3\nacknowledges and agrees that the Disclosing Party has not granted to the Recipient any license, copyright or similar right with respect to any of the\nEvaluation Material.\nIt is understood and agreed that money damages would not be sufficient remedy for any breach of this Agreement and that the Disclosing Party\nshall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach. Each Recipient further agrees to\nwaive any requirement for the security or posting of any bond in connection with such remedy. Such remedy shall not be deemed to be the exclusive\nremedy for breach of this agreement but shall be in addition to all other remedies available at law or equity to the Disclosing Party.\nIn the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, nonappealable order that a Party\nhas breached this Agreement, then such party shall be liable and pay to the non-breaching Party the reasonable legal fees such non-breaching Party\nhas incurred in connection with such litigation, including any appeal therefrom.\nThis Agreement supersedes the Confidentiality Agreement between the Parties dated April 5, 2007 and may be modified or waived only by\na\nseparate writing signed by the Parties expressly so modifying or waiving such agreements. It is understood and agreed that no failure or delay by a\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or further exercise thereof or the exercise of any right, power or privilege hereunder. The invalidity or unenforceability of any provision of\nthis Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect.\nThis Agreement is for the benefit of the Parties and shall be governed and construed in accordance with the laws of the State of Delaware\nUSA.\nThis Agreement may not be assigned in whole or in part by either Party hereto without the prior written consent of the other Party.\nFor the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed to be an\noriginal, and both of which taken together, shall constitute one agreement binding on both parties.\n4\nIN WITNESS WHEREOF, the duly authorized representatives of the Parties have executed this Agreement as of the day and year first set forth\nabove.\nQIAGEN N.V.\nBy: /s/ Peer M. Schatz\nName: Peer M. Schatz\nTitle: President and Chief Executive Officer\nDIGENE CORPORATION\nBy: /s/ Joseph P. Slattery\nName: Joseph P. Slattery\nTitle: Chief Financial Officer\n5	EX-99.(E)(2) 3 dex99e2.htm AMENDED & RESTATED CONFIDENTIALITY AGREEMENT\nEXHIBIT (e)(2)\nAMENDED AND RESTATED\nCONFIDENTIALITY AGREEMENT\nThis Amended and Restated Confidentiality Agreement (this “Agreement”) dated May 22, 2007 (the “Effective Date”), is entered into by and\namong QIAGEN N.V. a corporation formed under the laws of The Netherlands (“QIAGEN”), with offices at Spoorstraat 50, 5911 KJ Venlo, The\nNetherlands, and Digene Corporation, a Delaware corporation (“Digene”), with offices at 1201 Clopper Road, Gaithersburg, MD 20878, and amends\nand restates that certain Confidentiality Agreement entered into by and among QIAGEN and Digene on May 7, 2007.\nQIAGEN, on behalf of itself and its subsidiaries, and Digene, on behalf of itself and its subsidiaries (the “Parties”) intend to explore a possible\nnegotiated transaction, and in connection therewith each Party expects to make available certain financial, operating and business information about\nitself to the other Party. In this Agreement, the Party disclosing Evaluation Material (as defined below) is referred to as the “Disclosing Party” and\nthe Party receiving Evaluation Material is referred to as the “Recipient.” As a condition to the Disclosing Party furnishing such information to the\nRecipient and subsidiaries and their respective directors, officers, employees, agents or advisors (including, without limitation, affiliates, attorneys,\naccountants, consultants, bankers and financial advisors) (collectively, “Representatives”), the Recipient agrees to treat all Evaluation Material in\naccordance with the provisions of this Agreement and to take or abstain from taking certain other actions hereinafter set forth.\nThe term “Evaluation Material” shall mean all information relating, directly or indirectly, to the Disclosing Party or the business, products and\nservices, technologies, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the\nDisclosing Party (whether prepared by the Disclosing Party, its advisors or otherwise), which is delivered, disclosed or furnished by or on behalf of\nthe Disclosing Party to the Recipient or its Representatives for purposes of the Recipient considering the possible transaction the subject of this\nAgreement, before, on or after the date hereof, regardless of the manner in which it is delivered, disclosed or furnished or which the Recipient or its\nRepresentatives otherwise learn or obtain, through observation or through analysis of such information, and shall also be deemed to include all notes,\nanalyses, compilations, studies, forecasts, projects, interpretations or other documents prepared by the Recipient or its Representatives which\ncontain, reflect or are based upon, in whole or in part, any such information. The term “documents” shall include, without limitation, any writing,\nletter, memorandum (internal or otherwise), telex, cable, facsimile, tape, disk drive, diskette, CD-ROM, e-mail transmission or other recording or\nmemoralization, chart, graph, blueprint, picture or financial statements or data. The term Evaluation Material does not include information which the\nRecipient can demonstrate (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or its\nRepresentatives in breach of the terms hereof, (ii) was within the Recipient’s possession prior to its being furnished to the Recipient by or on behalf\nof the Disclosing Party pursuant hereto; provided that the source of such information was not known by the Recipient to be bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with\nrespect to such information, or (iii) becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party or\nany of its Representatives; provided that such source is not known by the Recipient to be bound by a confidentiality agreement with, or other\ncontractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with respect to such information.\nThe Recipient and its Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible negotiated transaction\nbetween the Parties, shall keep the Evaluation Material confidential and shall not disclose any of the Evaluation Material in any manner whatsoever;\nprovided,\nhowever, that (i) the Recipient may make any disclosure of such information to which the Disclosing Party gives its prior written consent and (ii) any\nof such information may be disclosed to the Recipient’s Representatives who need to know such information for the sole purpose of evaluating a\npossible negotiated transaction between the Parties and who agree to keep such information confidential and agree to be bound by the terms hereof\nto the same extent as if they were parties hereto (which agreement need not be in writing). In any event, the Recipient shall be responsible for any\nbreach of this Agreement by any of its Representatives, and the Recipient agrees, at its sole expense, to take all reasonable measures (including but\nnot limited to court proceedings) to restrain its Representatives from prohibited or unauthorized disclosure or use of the Evaluation Material.\nWithout the prior written consent of the Disclosing Party, the Recipient and its Representatives will not disclose to any other person the\nexistence of this Agreement, the fact that the Evaluation Material has been made available to the Recipient, or the fact that discussions or\nnegotiations are taking place concerning a possible transaction involving the Parties or any of the terms, conditions or other facts with respect thereto\n(including the status thereof); provided that the Recipient may make such disclosure if it has received the advice of its counsel that such disclosure\nmust be made by the Recipient in order that it not commit a violation of any law; and provided, further, that the Recipient has given the Disclosing\nParty prompt prior written notice of the Recipient’s intent to make such disclosure and cooperated with the Disclosing Party if it attempts to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded to such disclosure. The term “person” as used\nin this Agreement shall be broadly interpreted to include the media and any corporation, company, partnership, joint venture, group, limited liability\ncompany other entity or individual.\nIn the event that a Party decides not to proceed with the possible transaction with the other Party, it will promptly inform the other Party of that\ndecision. In that event, or at any time upon the Disclosing Party’s request, the Recipient shall promptly return to the Disclosing Party all Evaluation\nMaterial, including all written or otherwise tangible material containing or reflecting any information contained in the Evaluation Material (whether\nprepared by the Disclosing Party, its Representatives or otherwise), and will not retain any copies, extracts or other reproductions in whole or in part\nof such material. All documents, memoranda, notes and other writing whatsoever prepared by the Recipient or its Representatives based on the\ninformation contained in the Evaluation Material shall be destroyed. The Recipient shall certify such destruction to the Disclosing Party by providing\na certificate signed by an officer of the Recipient confirming destruction of materials as contemplated by this paragraph.\nThe Recipient understands and acknowledges that any and all information contained in the Evaluation Material is being provided without any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material. Neither the Disclosing Party nor any of\nits Representatives shall have any liability to the Recipient or any of its Representatives from the use of the Evaluation Material or any errors therein\nor omissions therefrom. It is understood that the scope of any representations and warranties to be given by each Party will be negotiated along with\nother terms and conditions in arriving at a mutually acceptable form of definitive agreement should discussions between the Parties progress to such\na point.\nTo the extent that any Evaluation Material may include materials subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and agree that they\nhave a commonality of interest with respect to such matters and it is the Parties’ desire, intention and mutual understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Evaluation Material that is entitled to protection\n2\nunder the attorney-client privilege, work product doctrine and other applicable privilege shall remain entitled to such protection under these\nprivileges, this Agreement, and under the joint defense doctrine.\nEach Party hereby acknowledges that it is aware (and that its Representatives who are apprised of this matter have been or will be advised) that\nthe United States securities laws prohibit any person who has material, non-public information about a company from purchasing or selling\nsecurities of such company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable\nthat such person is likely to purchase or sell such securities.\nUntil the earliest of (i) the execution by the Parties of a definitive agreement regarding the acquisition of one by the other, (ii) an acquisition of\neither Party by a third party, or (iii) one year after the date of this Agreement, each Party agrees not to initiate or maintain contact (except for those\ncontacts made in the ordinary course of business) with any officer, director or employee of the other Party, other than those specifically designated as\ncontacts for a possible transaction by each Party, regarding that Party’s business, operations, prospects or finances, except with the express\npermission of that Party. Without the prior written consent of the other Party, each Party agrees not to solicit for employment or hire any of the\ncurrent employees of the other Party until the earlier of (a) execution by the Parties of a definitive agreement; or (b) termination, in writing, of\ndiscussions under this Agreement, and, in each case of (a) or (b) plus a period of one year thereafter. General solicitation activities not directed to\nemployees of the other Party shall not be a breach of this Paragraph.\nEach Party hereby agrees that, until one year after the date of this Agreement, unless such shall have been specifically agreed in writing by the\nother Party, neither Party nor any of its affiliates (as such term is defined under the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”), each an “Affiliate”) will in any manner, directly or indirectly: (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or\ncause or participate in or in any way advise, assist or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise)\nto effect or participate in (i) any acquisition of any securities of the other Party or any of its Affiliates or (ii) any tender or exchange offer, merger or\nother business combination involving the other Party or any of its Affiliates; (b) otherwise act, alone or in concert with others, to seek to control or\ninfluence the management, Board of Directors or policies of the other Party or any of its Affiliates; or (c) enter into any arrangements with any third\nparty with respect to any of the foregoing. The foregoing obligations will be automatically revised, during the period of time set forth above, to be\nequal to provisions in any confidentiality agreement entered into by either Party with a third party regarding a similar subject matter, but containing\nless restrictive obligations. Such automatic revision will occur upon written notice from one Party to the other Party containing the new provisions,\nwhich notice must be given promptly following entry into such agreement with a third party. The foregoing obligations, including the revisions to the\ncovenant contemplated by the preceding sentence, shall automatically terminate on the public announcement by a third party of a tender or exchange\noffer by, or merger or other business combination with, or any other transaction intended to have, or having, a similar effect, involving either Party or\nany of its Affiliates; provided that neither Party nor any of its respective Affiliates was directly or indirectly involved in such transaction with such\nthird party. As of the date hereof, Digene has not entered into any agreement with a third party that creates obligations relating to subject matter\nsubstantially similar to that of this paragraph that are any less restrictive than the provisions hereof.\nThe Parties agree that unless and until a final definitive agreement regarding a transaction between the Parties has been executed and delivered,\nneither Party will be under any legal obligation of any kind whatsoever with respect to such a transaction by virtue of this Agreement except for the\nmatters specifically agreed to herein. Each Party reserves the right, in its sole discretion, to reject any and all proposals made by the other Party or its\nRepresentatives with regard to a transaction between the Parties, and to terminate discussions and negotiations with the other Party at any time. The\nRecipient\n3\nacknowledges and agrees that the Disclosing Party has not granted to the Recipient any license, copyright or similar right with respect to any of the\nEvaluation Material.\nIt is understood and agreed that money damages would not be sufficient remedy for any breach of this Agreement and that the Disclosing Party\nshall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach. Each Recipient further agrees to\nwaive any requirement for the security or posting of any bond in connection with such remedy. Such remedy shall not be deemed to be the exclusive\nremedy for breach of this agreement but shall be in addition to all other remedies available at law or equity to the Disclosing Party.\nIn the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, nonappealable order that a Party\nhas breached this Agreement, then such party shall be liable and pay to the non-breaching Party the reasonable legal fees such non-breaching Party\nhas incurred in connection with such litigation, including any appeal therefrom.\nThis Agreement supersedes the Confidentiality Agreement between the Parties dated April 5, 2007 and may be modified or waived only by a\nseparate writing signed by the Parties expressly so modifying or waiving such agreements. It is understood and agreed that no failure or delay by a\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or further exercise thereof or the exercise of any right, power or privilege hereunder. The invalidity or unenforceability of any provision of\nthis Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect.\nThis Agreement is for the benefit of the Parties and shall be governed and construed in accordance with the laws of the State of Delaware\nUSA.\nThis Agreement may not be assigned in whole or in part by either Party hereto without the prior written consent of the other Party.\nFor the convenience of the parties, this Agreement may be executed by facsimile and in counterparts, each of which shall be deemed to be an\noriginal, and both of which taken together, shall constitute one agreement binding on both parties.\n4\nIN WITNESS WHEREOF, the duly authorized representatives of the Parties have executed this Agreement as of the day and year first set forth\nabove.\nQIAGEN N.V.\nBy: /s/ Peer M. Schatz\nName: Peer M. Schatz\nTitle: President and Chief Executive Officer\nDIGENE CORPORATION\nBy: /s/ Joseph P. Slattery\nName: Joseph P. Slattery\nTitle: Chief Financial Officer\n5
+a527509f8b744d57fc406679ab2287e0.pdf	effective_date jurisdiction party term	EX-10.8 12 d638429dex108.htm EX-10.8\nExhibit 10.8\nNON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE\nAGREEMENT\nTHIS NON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE AGREEMENT (“Agreement”) is\nentered into on the 24th day of June, 2010, by and between AGS LLC, a Delaware Corporation (“Company”), and Bob Miodunski\n(“Employee”).\nIn consideration of the Company employing. Employee and the compensation to be paid to Employee during the course of his/her\nemployment, Employee hereby agrees as follows:\n1. Effective Date-Affiliates.\n(a) This Agreement shall be effective as of the first day of employment with the Company.\n(b) All references to Affiliates shall include American Gaming Systems, AGS Partners LLC, AGS Capital, LLC, AGS\nHoldings, LLC, GTNA Solutions, Corporation or any other entity acquired or organized by the Company during the course of the Employee’s\nemployment with the Company.\n2. Non-Disclosure, Non-Solicitation and Covenant Not to Compete.\n(a) Non-Disclosure. Employee understands and acknowledges that Confidential Information (as defined herein), constitutes a\nvaluable asset of Company and its Affiliates, and may not be converted to Employee’s own use. During the course of employment and thereafter,\nEmployee shall hold in a fiduciary capacity for the benefit of Company all secret or confidential information, knowledge or data relating to\nCompany or its Affiliates, and their respective businesses, that shall not be public knowledge (other than information which becomes public as a\nresult of acts of Employee or his representatives in violation of this Agreement), including, without limitation, its products, programs, projects,\npromotions, marketing, business plans or practices, business operations, employees, research and development, intellectual property,\ncustomer/client information, matters subject to litigation, and technology or financial information of Company or its Affiliates (collectively\nreferred to as “Confidential Information”), without the prior written consent of Company. In the event Employee is required by law or court order\nto disclose any Confidential Information, Employee shall promptly notify Company of such requirement and provide Company with a copy of\nany court order or of any law that requires such disclosure and, if Company so elects, to the extent permitted by law, provide Company an\nadequate opportunity, at its own expense, to contest such law or court order, prior to any such required disclosure by Employee.\n-1-\n(b) Non-Solicitation—Employees. During the course of employment and for a two (2) year period thereafter, Employee shall\nnot, for himself or any third party, alone or as a member of a partnership or limited liability company, or as an officer, director, shareholder or\notherwise, directly or indirectly, solicit or contact any employee of Company or any Affiliate of Company, with a view to inducing or\nencouraging such employee to leave the employ of Company or its Affiliates, for the purpose of being employed at a company employing\nEmployee, a employer affiliated with Company or any competitor of Company or any affiliate thereof.\n(c) Covenant Not to Compete. As a material inducement for Company to enter into this Agreement, during the course of\nemployment and during a one (1) year period thereafter, Employee shall not directly or indirectly engage or participate in any way in nor accept\nany such position or affiliation with, nor render any such services on behalf of, any Competing Business, notwithstanding the job title given to\nEmployee by any Competing Business. For purposes of this Agreement a Competing Business shall mean any person or business engaged in the\nmanufacturing and/or distribution of Class II and/or Class III electronic gaming devices and/or casino back office systems. During this period\nEmployee shall not, on behalf of Employee or on behalf of any other individual, association or entity, call on any of the clients or customers of\nthe Company or any affiliate of the Company for the purpose of soliciting or inducing any of such customers to acquire (or providing to any of\nsuch customers) any product or service provided by the Company or an affiliate of the Company, nor will Employee in any way, directly or\nindirectly, as agent or otherwise, in any other manner solicit, influence or encourage such customers to take away or to divert or direct their\nbusiness to Employee or any other person or entity by or with which Employee is employed, associated, affiliated or otherwise related. If you are\nterminated without “Cause” as defined in your offer letter the Covenant Not to Compete portion of this Agreement shall terminate after six\n(6) months unless the Company continues to pay your base salary (per the normal Company payroll cycle) for six (6) months past the date of\ntermination in exchange for an additional six (6) month extension of the Covenant Not to Compete.\n(d) Acknowledgement. The parties acknowledge that Company would not have entered into this Agreement in the absence of\nthe preceding reasonable restrictions in this Section 2, and Employee confirms that these restrictions do not and will not unduly impair his ability\nto make a living after the termination of his/her employment with Company, the purpose of which is to protect the goodwill and other legitimate\nbusiness interests of Company. Employee acknowledges that the provisions of this Section 2 are reasonable and necessary for the protection of\nCompany and that Company will be irrevocably damaged if such provisions are not specifically enforced. Accordingly, Employee agrees that, in\naddition to any other relief to which Company may be entitled in the form of actual or punitive damages, Company shall be entitled to seek and\nobtain injunctive relief from a court of competent jurisdiction (without posting a bond therefore) for the purpose of restraining Employee from\nany actual or threatened breach of such provisions. The provisions of this Section 2 shall survive the term of employment.\n-2-\n3. Prior Commitments. Employee has no other agreements, relationships, or commitments to any other person or entity that conflict\nwith Employee’s obligations to the Company under this Agreement.\n4. Proprietary Information or Trade Secrets of Others. Employee will not disclose to the Company or its Affiliates, or use, or induce\nthe Company to use, any proprietary information or trade secrets of others. Employee represents and warrants that he/she has returned all\nproperty and Confidential Information belonging to all prior employers.\n5. Delivery of Documents and Data Upon Termination. In the event of termination of Employee’s employment with the Company for\nany reason whatsoever, Employee agrees, promptly and without request, to deliver, to and inform the Company of all documents and data\npertaining to his/her employment, and the Confidential Information of the Company, whether prepared by Employee or otherwise coming into\nhis/her possession or control. Employee will not retain any written or other tangible material, or copies thereof, containing any information\nconcerning or disclosing any of the Confidential Information of the Company. Employee recognizes that such unauthorized taking of the\nCompany’s trade secrets can result in criminal penalties and civil liability under the Uniform Trade Secrets Act; and that willful misappropriation\nmay result in lines and an award against Employee for damages as well as the Company’s attorneys’ fees in collecting such damages, which shall\nbe in addition to, and shall not supersede, the Company’s available remedies pursuant to state and federal law.\n6. Equitable Remedies. Employee recognizes and agrees that the violation, breach or threatened violation or breach of any term,\nprovision, or condition of this Agreement may cause irreparable damage to the Company which is difficult to calculate, and that the award of any\nsum or damages may not be adequate relief to the Company. Employee therefore agrees that, in addition to all of the remedies available in the\nevent of any actual or threatened violation or breach of this Agreement, the Company shall have the right to injunctive and other equitable relief.\nHowever, no specification in this Agreement of a specific legal or equitable remedy shall be construed as a waiver of or prohibition against the\npursuit of other legal or equitable remedies in the event of the actual or threatened violation or breach of a provision of this Agreement.\n7. Cumulative Remedies. Each and all of the several rights and remedies provided for in this Agreement shall be cumulative. No one\nright or remedy shall be exclusive of the others, or of any right or remedy allowed in law or in equity. No waiver or indulgence by the Company\nof any failure by Employee to keep or perform any promise or condition of this Agreement shall be a waiver of any preceding or succeeding\nbreach of the same, or any other promise or condition. No waiver by the Company of any right shall be construed as a waiver of any other right.\nThe Company shall not be required to give notice to enforce strict adherence to all terms of this Agreement.\n8. Attorneys’ Fees. If any action is necessary to enforce this Agreement, the prevailing party shall be entitled to recover its attorneys’\nfees, costs, and expenses.\n-3-\n9. Material Condition of Employment. Employee acknowledges and agrees that the protections set forth in this Agreement are a material\ncondition to his/her employment with and compensation by the Company.\n10. Amendment and Binding Effect. This Agreement may not be amended except by an instrument in writing signed by both parties. This\nAgreement shall be binding on the heirs, executors, administrators, and other legal representatives and assigns of Employee, and is for the benefit\nof the Company and its successors and assigns.\n11. Governing Law. The laws of the State of Nevada (without giving effect to choice of law or conflict of law principles) shall govern the\nvalidity, construction, performance and effect of this Agreement, except to the extent governed by federal law, irrespective of the fact that one or\nmore of the parities now is, or may become, a resident or citizen of a different state or country. The parties hereby expressly submit to the\npersonal jurisdiction of the court or arbitral forum located in Clark County, State of Nevada, and waive any objection or defense based on\npersonal jurisdiction or venue that might otherwise be asserted to proceeding in such forum(s).\n12. Entire Understanding. This Agreement expresses the entire understanding of the parties about the described subject matter.\n13. Severability. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid, in whole\nor in part, for any reason whatsoever, the validity and enforceability of the remaining provisions, or portions of them, will not be affected.\n14. Employment at Will. Employment and compensation can be terminated, with or without cause, and with or without notice, at any time,\nat the option of the Company or the Employee. Nothing contained in this Confidentiality Agreement shall limit or otherwise alter the foregoing.\n15. Headings. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, define or limit the\nscope, intent or interpretation of this Agreement.\n-4-\nAGS LLC\nBy:\n/s/ AGS LLC\n“Company”\n/s/ Bob Miodunski\n(Signature of Employee)\nBob Miodunski\n“Employee”\n-5-	EX-10.8 12 d638429dex108.htm EX-10.8\nExhibit 10.8\nNON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE\nAGREEMENT\nTHIS NON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE AGREEMENT (“Agreement”) is\nentered into on the 24th day of June, 2010, by and between AGS LLC, a Delaware Corporation (“Company”), and Bob Miodunski\n(“Employee™).\nIn consideration of the Company employing. Employee and the compensation to be paid to Employee during the course of his/her\nemployment, Employee hereby agrees as follows:\n1. Effective Date-Affiliates.\n(a) This Agreement shall be effective as of the first day of employment with the Company.\n(b) All references to Affiliates shall include American Gaming Systems, AGS Partners LLC, AGS Capital, LLC, AGS\nHoldings, LLC, GTNA Solutions, Corporation or any other entity acquired or organized by the Company during the course of the Employee’s\nemployment with the Company.\n2. Non-Disclosure, Non-Solicitation and Covenant Not to Compete.\n(a) Non-Disclosure. Employee understands and acknowledges that Confidential Information (as defined herein), constitutes a\nvaluable asset of Company and its Affiliates, and may not be converted to Employee’s own use. During the course of employment and thereafter,\nEmployee shall hold in a fiduciary capacity for the benefit of Company all secret or confidential information, knowledge or data relating to\nCompany or its Affiliates, and their respective businesses, that shall not be public knowledge (other than information which becomes public as a\nresult of acts of Employee or his representatives in violation of this Agreement), including, without limitation, its products, programs, projects,\npromotions, marketing, business plans or practices, business operations, employees, research and development, intellectual property,\ncustomer/client information, matters subject to litigation, and technology or financial information of Company or its Affiliates (collectively\nreferred to as “Confidential Information”), without the prior written consent of Company. In the event Employee is required by law or court order\nto disclose any Confidential Information, Employee shall promptly notify Company of such requirement and provide Company with a copy of\nany court order or of any law that requires such disclosure and, if Company so elects, to the extent permitted by law, provide Company an\nadequate opportunity, at its own expense, to contest such law or court order, prior to any such required disclosure by Employee.\n-1-\n(b) Non-Solicitation—Employees. During the course of employment and for a two (2) year period thereafter, Employee shall\nnot, for himself or any third party, alone or as a member of a partnership or limited liability company, or as an officer, director, shareholder or\notherwise, directly or indirectly, solicit or contact any employee of Company or any Affiliate of Company, with a view to inducing or\nencouraging such employee to leave the employ of Company or its Affiliates, for the purpose of being employed at a company employing\nEmployee, a employer affiliated with Company or any competitor of Company or any affiliate thereof.\n(c) Covenant Not to Compete. As a material inducement for Company to enter into this Agreement, during the course of\nemployment and during a one (1) year period thereafter, Employee shall not directly or indirectly engage or participate in any way in nor accept\nany such position or affiliation with, nor render any such services on behalf of, any Competing Business, notwithstanding the job title given to\nEmployee by any Competing Business. For purposes of this Agreement a Competing Business shall mean any person or business engaged in the\nmanufacturing and/or distribution of Class II and/or Class III electronic gaming devices and/or casino back office systems. During this period\nEmployee shall not, on behalf of Employee or on behalf of any other individual, association or entity, call on any of the clients or customers of\nthe Company or any affiliate of the Company for the purpose of soliciting or inducing any of such customers to acquire (or providing to any of\nsuch customers) any product or service provided by the Company or an affiliate of the Company, nor will Employee in any way, directly or\nindirectly, as agent or otherwise, in any other manner solicit, influence or encourage such customers to take away or to divert or direct their\nbusiness to Employee or any other person or entity by or with which Employee is employed, associated, affiliated or otherwise related. If you are\nterminated without “Cause” as defined in your offer letter the Covenant Not to Compete portion of this Agreement shall terminate after six\n(6) months unless the Company continues to pay your base salary (per the normal Company payroll cycle) for six (6) months past the date of\ntermination in exchange for an additional six (6) month extension of the Covenant Not to Compete.\n(d) Acknowledgement. The parties acknowledge that Company would not have entered into this Agreement in the absence of\nthe preceding reasonable restrictions in this_Section 2, and Employee confirms that these restrictions do not and will not unduly impair his ability\nto make a living after the termination of his/her employment with Company, the purpose of which is to protect the goodwill and other legitimate\nbusiness interests of Company. Employee acknowledges that the provisions of this Section 2 are reasonable and necessary for the protection of\nCompany and that Company will be irrevocably damaged if such provisions are not specifically enforced. Accordingly, Employee agrees that, in\naddition to any other relief to which Company may be entitled in the form of actual or punitive damages, Company shall be entitled to seek and\nobtain injunctive relief from a court of competent jurisdiction (without posting a bond therefore) for the purpose of restraining Employee from\nany actual or threatened breach of such provisions. The provisions of this_Section 2 shall survive the term of employment.\n-\n3. Prior Commitments. Employee has no other agreements, relationships, or commitments to any other person or entity that conflict\nwith Employee’s obligations to the Company under this Agreement.\n4. Proprietary Information or Trade Secrets of Others. Employee will not disclose to the Company or its Affiliates, or use, or induce\nthe Company to use, any proprietary information or trade secrets of others. Employee represents and warrants that he/she has returned all\nproperty and Confidential Information belonging to all prior employers.\n5. Delivery_of Documents and Data Upon Termination. In the event of termination of Employee’s employment with the Company for\nany reason whatsoever, Employee agrees, promptly and without request, to deliver, to and inform the Company of all documents and data\npertaining to his/her employment, and the Confidential Information of the Company, whether prepared by Employee or otherwise coming into\nhis/her possession or control. Employee will not retain any written or other tangible material, or copies thereof, containing any information\nconcerning or disclosing any of the Confidential Information of the Company. Employee recognizes that such unauthorized taking of the\nCompany’s trade secrets can result in criminal penalties and civil liability under the Uniform Trade Secrets Act; and that willful misappropriation\nmay result in lines and an award against Employee for damages as well as the Company’s attorneys’ fees in collecting such damages, which shall\nbe in addition to, and shall not supersede, the Companys available remedies pursuant to state and federal law.\n6. Equitable Remedies. Employee recognizes and agrees that the violation, breach or threatened violation or breach of any term,\nprovision, or condition of this Agreement may cause irreparable damage to the Company which is difficult to calculate, and that the award of any\nsum or damages may not be adequate relief to the Company. Employee therefore agrees that, in addition to all of the remedies available in the\nevent of any actual or threatened violation or breach of this Agreement, the Company shall have the right to injunctive and other equitable relief.\nHowever, no specification in this Agreement of a specific legal or equitable remedy shall be construed as a waiver of or prohibition against the\npursuit of other legal or equitable remedies in the event of the actual or threatened violation or breach of a provision of this Agreement.\n7. Cumulative Remedies. Each and all of the several rights and remedies provided for in this Agreement shall be cumulative. No one\nright or remedy shall be exclusive of the others, or of any right or remedy allowed in law or in equity. No waiver or indulgence by the Company\nof any failure by Employee to keep or perform any promise or condition of this Agreement shall be a waiver of any preceding or succeeding\nbreach of the same, or any other promise or condition. No waiver by the Company of any right shall be construed as a waiver of any other right.\nThe Company shall not be required to give notice to enforce strict adherence to all terms of this Agreement.\n8. Attorneys’ Fees. If any action is necessary to enforce this Agreement, the prevailing party shall be entitled to recover its attorneys’\nfees, costs, and expenses.\n_3-\n9. Material Condition of Employment. Employee acknowledges and agrees that the protections set forth in this Agreement are a material\ncondition to his/her employment with and compensation by the Company.\n10. Amendment and Binding Effect. This Agreement may not be amended except by an instrument in writing signed by both parties. This\nAgreement shall be binding on the heirs, executors, administrators, and other legal representatives and assigns of Employee, and is for the benefit\nof the Company and its successors and assigns.\n11. Governing Law. The laws of the State of Nevada (without giving effect to choice of law or conflict of law principles) shall govern the\nvalidity, construction, performance and effect of this Agreement, except to the extent governed by federal law, irrespective of the fact that one or\nmore of the parities now is, or may become, a resident or citizen of a different state or country. The parties hereby expressly submit to the\npersonal jurisdiction of the court or arbitral forum located in Clark County, State of Nevada, and waive any objection or defense based on\npersonal jurisdiction or venue that might otherwise be asserted to proceeding in such forum(s).\n12. Entire Understanding. This Agreement expresses the entire understanding of the parties about the described subject matter.\n13. Severability. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid, in whole\nor in part, for any reason whatsoever, the validity and enforceability of the remaining provisions, or portions of them, will not be affected.\n14. Employment at Will. Employment and compensation can be terminated, with or without cause, and with or without notice, at any time,\nat the option of the Company or the Employee. Nothing contained in this Confidentiality Agreement shall limit or otherwise alter the foregoing.\n15. Headings. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, define or limit the\nscope, intent or interpretation of this Agreement.\n4-\nAGSLLC\nBy: /s/ AGS LLC\n“Company”\n/s/ Bob Miodunski\n(Signature of Employee)\nBob Miodunski\n“Employee”	EX-10.8 12 d638429dex108.htm EX-10.8\nExhibit 10.8\nNON-DISCLOSURE NON-SOLICITATION AND COVENANT NOT TO COMPETE\nAGREEMENT\nTHIS NON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE AGREEMENT ("Agreement") is\nentered into on the 24th day of June, 2010, by and between AGS LLC, a Delaware Corporation ("Company"), and Bob Miodunski\n("Employee").\nIn consideration of the Company employing. Employee and the compensation to be paid to Employee during the course of his/her\nemployment, Employee hereby agrees as follows:\n1. Effective Date-Affiliates.\n(a) This Agreement shall be effective as of the first day of employment with the Company.\n(b) All references to Affiliates shall include American Gaming Systems, AGS Partners LLC, AGS Capital, LLC, AGS\nHoldings, LLC, GTNA Solutions, Corporation or any other entity acquired or organized by the Company during the course of the Employee's\nemployment with the Company.\n2. Non-Disclosure, Non-Solicitation and Covenant Not to Compete.\n(a) Non-Disclosure. Employee understands and acknowledges that Confidential Information (as defined herein), constitutes a\nvaluable asset of Company and its Affiliates, and may not be converted to Employee's own use. During the course of employment and thereafter,\nEmployee shall hold in a fiduciary capacity for the benefit of Company all secret or confidential information, knowledge or data relating to\nCompany or its Affiliates, and their respective businesses, that shall not be public knowledge (other than information which becomes public as a\nresult of acts of Employee or his representatives in violation of this Agreement), including, without limitation, its products, programs, projects,\npromotions, marketing, business plans or practices, business operations, employees, research and development, intellectual property,\ncustomer/client information, matters subject to litigation, and technology or financial information of Company or its Affiliates (collectively\nreferred to as "Confidential Information"), without the prior written consent of Company. In the event Employee is required by law or court order\nto disclose any Confidential Information, Employee shall promptly notify Company of such requirement and provide Company with a copy of\nany court order or of any law that requires such disclosure and, if Company so elects, to the extent permitted by law, provide Company an\nadequate opportunity, at its own expense, to contest such law or court order, prior to any such required disclosure by Employee.\n-1-\n(b) Non-Solicitation-Employees. During the course of employment and for a two (2) year period thereafter, Employee shall\nnot, for himself or any third party, alone or as a member of a partnership or limited liability company, or as an officer, director, shareholder or\notherwise, directly or indirectly, solicit or contact any employee of Company or any Affiliate of Company, with a view to inducing or\nencouraging such employee to leave the employ of Company or its Affiliates, for the purpose of being employed at a company employing\nEmployee, a employer affiliated with Company or any competitor of Company or any affiliate thereof.\n(c) Covenant Not to Compete. As a material inducement for Company to enter into this Agreement, during the course\nof\nemployment and during a one (1) year period thereafter, Employee shall not directly or indirectly engage or participate in any way in nor accept\nany such position or affiliation with, nor render any such services on behalf of, any Competing Business, notwithstanding the job title given to\nEmployee by any Competing Business. For purposes of this Agreement a Competing Business shall mean any person or business engaged in the\nmanufacturing and/or distribution of Class II and/or Class III electronic gaming devices and/or casino back office systems. During this period\nEmployee shall not, on behalf of Employee or on behalf of any other individual, association or entity, call on any of the clients or customers of\nthe Company or any affiliate of the Company for the purpose of soliciting or inducing any of such customers to acquire (or providing to any of\nsuch customers) any product or service provided by the Company or an affiliate of the Company, nor will Employee in any way, directly\nor\nindirectly, as agent or otherwise, in any other manner solicit, influence or encourage such customers to take away or to divert or direct their\nbusiness to Employee or any other person or entity by or with which Employee is employed, associated, affiliated or otherwise related. If you are\nterminated without "Cause" as defined in your offer letter the Covenant Not to Compete portion of this Agreement shall terminate after six\n(6) months unless the Company continues to pay your base salary (per the normal Company payroll cycle) for six (6) months past the date of\ntermination in exchange for an additional six (6) month extension of the Covenant Not to Compete.\n(d) Acknowledgement. The parties acknowledge that Company would not have entered into this Agreement in the absence of\nthe preceding reasonable restrictions in this Section 2, and Employee confirms that these restrictions do not and will not unduly impair his ability\nto\nmake a living after the termination of his/her employment with Company, the purpose of which is to protect the goodwill and other legitimate\nbusiness interests of Company. Employee acknowledges that the provisions of this Section 2 are reasonable and necessary for the protection of\nCompany and that Company will be irrevocably damaged if such provisions are not specifically enforced. Accordingly, Employee agrees that, in\naddition to any other relief to which Company may be entitled in the form of actual or punitive damages, Company shall be entitled to seek and\nobtain injunctive relief from a court of competent jurisdiction (without posting a bond therefore) for the purpose of restraining Employee from\nany actual or threatened breach of such provisions. The provisions of this Section 2 shall survive the term of employment.\n-2-\n3. Prior Commitments. Employee has no other agreements, relationships, or commitments to any other person or entity that conflict\nwith Employee's obligations to the Company under this Agreement.\n4. Proprietary. Information or Trade Secrets of Others. Employee will not disclose to the Company or its Affiliates, or use, or induce\nthe Company to use, any proprietary information or trade secrets of others. Employee represents and warrants that he/she has returned all\nproperty and Confidential Information belonging to all prior employers.\n5. Delivery. of Documents and Data Upon Termination. In the event of termination of Employee's employment with the Company for\nany reason whatsoever, Employee agrees, promptly and without request, to deliver, to and inform the Company of all documents and data\npertaining to his/her employment, and the Confidential Information of the Company, whether prepared by Employee or otherwise coming into\nhis/her possession or control. Employee will not retain any written or other tangible material, or copies thereof, containing any information\nconcerning or disclosing any of the Confidential Information of the Company. Employee recognizes that such unauthorized taking of the\nCompany's trade secrets can result in criminal penalties and civil liability under the Uniform Trade Secrets Act; and that willful misappropriation\nmay result in lines and an award against Employee for damages as well as the Company's attorneys' fees in collecting such damages, which\nshall\nbe in addition to, and shall not supersede, the Company's available remedies pursuant to state and federal law.\n6. Equitable Remedies. Employee recognizes and agrees that the violation, breach or threatened violation or breach of any term,\nprovision, or condition of this Agreement may cause irreparable damage to the Company which is difficult to calculate, and that the award of any\nsum or damages may not be adequate relief to the Company. Employee therefore agrees that, in addition to all of the remedies available in the\nevent of any actual or threatened violation or breach of this Agreement, the Company shall have the right to injunctive and other equitable relief.\nHowever, no specification in this Agreement of a specific legal or equitable remedy shall be construed as a waiver of or prohibition against the\npursuit of other legal or equitable remedies in the event of the actual or threatened violation or breach of a provision of this Agreement.\n7. Cumulative Remedies. Each and all of the several rights and remedies provided for in this Agreement shall be cumulative. No one\nright or remedy shall be exclusive of the others, or of any right or remedy allowed in law or in equity. No waiver or indulgence by the Company\nof\nany\nfailure by Employee to keep or perform any promise or condition of this Agreement shall be a waiver of any preceding or succeeding\nbreach of the same, or any other promise or condition. No waiver by the Company of any right shall be construed as a waiver of any other right.\nThe Company shall not be required to give notice to enforce strict adherence to all terms of this Agreement.\n8. Attorneys' Fees. If any action is necessary to enforce this Agreement, the prevailing party shall be entitled to recover its attorneys'\nfees, costs, and expenses.\n-3-\n9. Material Condition of Employment. Employee acknowledges and agrees that the protections set forth in this Agreement are a material\ncondition to his/her employment with and compensation by the Company.\n10. Amendment and Binding Effect. This Agreement may not be amended except by an instrument in writing signed by both parties. This\nAgreement shall be binding on the heirs, executors, administrators, and other legal representatives and assigns of Employee, and is for the benefit\nof the Company and its successors and assigns.\n11. Governing Law. The laws of the State of Nevada (without giving effect to choice of law or conflict of law principles) shall govern the\nvalidity, construction, performance and effect of this Agreement, except to the extent governed by federal law, irrespective of the fact that one or\nmore of the parities now is, or may become, a resident or citizen of a different state or country. The parties hereby expressly submit to the\npersonal jurisdiction of the court or arbitral forum located in Clark County, State of Nevada, and waive any objection or defense based on\npersonal jurisdiction or venue that might otherwise be asserted to proceeding in such forum(s).\n12. Entire Understanding. This Agreement expresses the entire understanding of the parties about the described subject matter.\n13. Severability. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid, in whole\nor in part, for any reason whatsoever, the validity and enforceability of the remaining provisions, or portions of them, will not be affected.\n14. Employment at Will. Employment and compensation can be terminated, with or without cause, and with or without notice, at any time,\nat the option of the Company or the Employee. Nothing contained in this Confidentiality Agreement shall limit or otherwise alter the foregoing.\n15. Headings. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, define or limit the\nscope, intent or interpretation of this Agreement.\n-4-\nAGS LLC\nBy:\n/s/ AGS LLC\n"Company"\n/s/ Bob Miodunski\n(Signature of Employee)\nBob Miodunski\n"Employee"\n-5-	EX-10.8 12 d638429dex108.htm EX-10.8\nExhibit 10.8\nNON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE\nAGREEMENT\nTHIS NON-DISCLOSURE, NON-SOLICITATION AND COVENANT NOT TO COMPETE AGREEMENT (“Agreement”) is\nentered into on the 24th day of June, 2010, by and between AGS LLC, a Delaware Corporation (“Company”), and Bob Miodunski\n(“Employee”).\nIn consideration of the Company employing. Employee and the compensation to be paid to Employee during the course of his/her\nemployment, Employee hereby agrees as follows:\n1. Effective Date-Affiliates.\n(a) This Agreement shall be effective as of the first day of employment with the Company.\n(b) All references to Affiliates shall include American Gaming Systems, AGS Partners LLC, AGS Capital, LLC, AGS\nHoldings, LLC, GTNA Solutions, Corporation or any other entity acquired or organized by the Company during the course of the Employee’s\nemployment with the Company.\n2. Non-Disclosure, Non-Solicitation and Covenant Not to Compete.\n(a) Non-Disclosure. Employee understands and acknowledges that Confidential Information (as defined herein), constitutes a\nvaluable asset of Company and its Affiliates, and may not be converted to Employee’s own use. During the course of employment and thereafter,\nEmployee shall hold in a fiduciary capacity for the benefit of Company all secret or confidential information, knowledge or data relating to\nCompany or its Affiliates, and their respective businesses, that shall not be public knowledge (other than information which becomes public as a\nresult of acts of Employee or his representatives in violation of this Agreement), including, without limitation, its products, programs, projects,\npromotions, marketing, business plans or practices, business operations, employees, research and development, intellectual property,\ncustomer/client information, matters subject to litigation, and technology or financial information of Company or its Affiliates (collectively\nreferred to as “Confidential Information”), without the prior written consent of Company. In the event Employee is required by law or court order\nto disclose any Confidential Information, Employee shall promptly notify Company of such requirement and provide Company with a copy of\nany court order or of any law that requires such disclosure and, if Company so elects, to the extent permitted by law, provide Company an\nadequate opportunity, at its own expense, to contest such law or court order, prior to any such required disclosure by Employee.\n-1-\n(b) Non-Solicitation—Employees. During the course of employment and for a two (2) year period thereafter, Employee shall\nnot, for himself or any third party, alone or as a member of a partnership or limited liability company, or as an officer, director, shareholder or\notherwise, directly or indirectly, solicit or contact any employee of Company or any Affiliate of Company, with a view to inducing or\nencouraging such employee to leave the employ of Company or its Affiliates, for the purpose of being employed at a company employing\nEmployee, a employer affiliated with Company or any competitor of Company or any affiliate thereof.\n(c) Covenant Not to Compete. As a material inducement for Company to enter into this Agreement, during the course of\nemployment and during a one (1) year period thereafter, Employee shall not directly or indirectly engage or participate in any way in nor accept\nany such position or affiliation with, nor render any such services on behalf of, any Competing Business, notwithstanding the job title given to\nEmployee by any Competing Business. For purposes of this Agreement a Competing Business shall mean any person or business engaged in the\nmanufacturing and/or distribution of Class II and/or Class III electronic gaming devices and/or casino back office systems. During this period\nEmployee shall not, on behalf of Employee or on behalf of any other individual, association or entity, call on any of the clients or customers of\nthe Company or any affiliate of the Company for the purpose of soliciting or inducing any of such customers to acquire (or providing to any of\nsuch customers) any product or service provided by the Company or an affiliate of the Company, nor will Employee in any way, directly or\nindirectly, as agent or otherwise, in any other manner solicit, influence or encourage such customers to take away or to divert or direct their\nbusiness to Employee or any other person or entity by or with which Employee is employed, associated, affiliated or otherwise related. If you are\nterminated without “Cause” as defined in your offer letter the Covenant Not to Compete portion of this Agreement shall terminate after six\n(6) months unless the Company continues to pay your base salary (per the normal Company payroll cycle) for six (6) months past the date of\ntermination in exchange for an additional six (6) month extension of the Covenant Not to Compete.\n(d) Acknowledgement. The parties acknowledge that Company would not have entered into this Agreement in the absence of\nthe preceding reasonable restrictions in this Section 2, and Employee confirms that these restrictions do not and will not unduly impair his ability\nto make a living after the termination of his/her employment with Company, the purpose of which is to protect the goodwill and other legitimate\nbusiness interests of Company. Employee acknowledges that the provisions of this Section 2 are reasonable and necessary for the protection of\nCompany and that Company will be irrevocably damaged if such provisions are not specifically enforced. Accordingly, Employee agrees that, in\naddition to any other relief to which Company may be entitled in the form of actual or punitive damages, Company shall be entitled to seek and\nobtain injunctive relief from a court of competent jurisdiction (without posting a bond therefore) for the purpose of restraining Employee from\nany actual or threatened breach of such provisions. The provisions of this Section 2 shall survive the term of employment.\n-2-\n3. Prior Commitments. Employee has no other agreements, relationships, or commitments to any other person or entity that conflict\nwith Employee’s obligations to the Company under this Agreement.\n4. Proprietary Information or Trade Secrets of Others. Employee will not disclose to the Company or its Affiliates, or use, or induce\nthe Company to use, any proprietary information or trade secrets of others. Employee represents and warrants that he/she has returned all\nproperty and Confidential Information belonging to all prior employers.\n5. Delivery of Documents and Data Upon Termination. In the event of termination of Employee’s employment with the Company for\nany reason whatsoever, Employee agrees, promptly and without request, to deliver, to and inform the Company of all documents and data\npertaining to his/her employment, and the Confidential Information of the Company, whether prepared by Employee or otherwise coming into\nhis/her possession or control. Employee will not retain any written or other tangible material, or copies thereof, containing any information\nconcerning or disclosing any of the Confidential Information of the Company. Employee recognizes that such unauthorized taking of the\nCompany’s trade secrets can result in criminal penalties and civil liability under the Uniform Trade Secrets Act; and that willful misappropriation\nmay result in lines and an award against Employee for damages as well as the Company’s attorneys’ fees in collecting such damages, which shall\nbe in addition to, and shall not supersede, the Company’s available remedies pursuant to state and federal law.\n6. Equitable Remedies. Employee recognizes and agrees that the violation, breach or threatened violation or breach of any term,\nprovision, or condition of this Agreement may cause irreparable damage to the Company which is difficult to calculate, and that the award of any\nsum or damages may not be adequate relief to the Company. Employee therefore agrees that, in addition to all of the remedies available in the\nevent of any actual or threatened violation or breach of this Agreement, the Company shall have the right to injunctive and other equitable relief.\nHowever, no specification in this Agreement of a specific legal or equitable remedy shall be construed as a waiver of or prohibition against the\npursuit of other legal or equitable remedies in the event of the actual or threatened violation or breach of a provision of this Agreement.\n7. Cumulative Remedies. Each and all of the several rights and remedies provided for in this Agreement shall be cumulative. No one\nright or remedy shall be exclusive of the others, or of any right or remedy allowed in law or in equity. No waiver or indulgence by the Company\nof any failure by Employee to keep or perform any promise or condition of this Agreement shall be a waiver of any preceding or succeeding\nbreach of the same, or any other promise or condition. No waiver by the Company of any right shall be construed as a waiver of any other right.\nThe Company shall not be required to give notice to enforce strict adherence to all terms of this Agreement.\n8. Attorneys’ Fees. If any action is necessary to enforce this Agreement, the prevailing party shall be entitled to recover its attorneys’\nfees, costs, and expenses.\n-3-\n9. Material Condition of Employment. Employee acknowledges and agrees that the protections set forth in this Agreement are a material\ncondition to his/her employment with and compensation by the Company.\n10. Amendment and Binding Effect. This Agreement may not be amended except by an instrument in writing signed by both parties. This\nAgreement shall be binding on the heirs, executors, administrators, and other legal representatives and assigns of Employee, and is for the benefit\nof the Company and its successors and assigns.\n11. Governing Law. The laws of the State of Nevada (without giving effect to choice of law or conflict of law principles) shall govern the\nvalidity, construction, performance and effect of this Agreement, except to the extent governed by federal law, irrespective of the fact that one or\nmore of the parities now is, or may become, a resident or citizen of a different state or country. The parties hereby expressly submit to the\npersonal jurisdiction of the court or arbitral forum located in Clark County, State of Nevada, and waive any objection or defense based on\npersonal jurisdiction or venue that might otherwise be asserted to proceeding in such forum(s).\n12. Entire Understanding. This Agreement expresses the entire understanding of the parties about the described subject matter.\n13. Severability. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid, in whole\nor in part, for any reason whatsoever, the validity and enforceability of the remaining provisions, or portions of them, will not be affected.\n14. Employment at Will. Employment and compensation can be terminated, with or without cause, and with or without notice, at any time,\nat the option of the Company or the Employee. Nothing contained in this Confidentiality Agreement shall limit or otherwise alter the foregoing.\n15. Headings. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, define or limit the\nscope, intent or interpretation of this Agreement.\n-4-\nAGS LLC\nBy:\n/s/ AGS LLC\n“Company”\n/s/ Bob Miodunski\n(Signature of Employee)\nBob Miodunski\n“Employee”\n-5-
+a61addc59a183d020f9639e422ddedd3.pdf	effective_date jurisdiction party term	EX-99.E .3 3 d364852dex99e3.htm NON-DISCLOSURE AGREEMENT\nExhibit (e)(3)\nNON-DISCLOSURE AGREEMENT\nThis is a Non-Disclosure Agreement (this “Agreement”), effective as of the date stated below (the “Effective Date”), between SRI/Surgical\nExpress, Inc., a Florida corporation (the “Company”), and the undersigned (the “Counterparty”).\nBackground\nThe Parties are considering a potential business transaction (the “Opportunity”), and are entering into this Agreement so that the Company can\nshare confidential information pertinent to the Opportunity with confidence that the Counterparty will use such confidential information only to\nevaluate the Opportunity and will not disclose that confidential information, except in accordance with the terms of this Agreement. The\nCounterparty and the Company are sometimes referred to individually as a “Party” and collectively as the “Parties.”\nOperative Terms\nThe Parties agree as follows:\n1. These terms have the following definitions in this Agreement:\n“Confidential Information” means all information concerning or related to the business, operations, results of operations, assets and affairs of\nthe Company, including, but not limited to, financial and accounting information, budgets, projections, forecasts, business plans, operating methods,\nbusiness strategies, product and service information, product plans, product specifications, product designs, processes, plans, drawings, concepts,\nresearch and development data and materials, systems, techniques, trade secrets, intellectual property, software programs and works of authorship,\nknow-how, marketing and distribution plans, planning data, marketing strategies, price lists, market studies, employee lists, supplier lists, customer\nand prospect lists, and supplier and other customer information and data that the Company or its Representatives discloses (or has, prior to the date\nof this Agreement, disclosed) to the Counterparty or its Representatives in connection with the Opportunity, however documented or disclosed\n(whether or not such information is marked as confidential), together with any copies, extracts, analyses, compilations, studies or other documents\nprepared or received by the Counterparty or its Representatives, which contain or otherwise reflect such information or the Counterparty’s review of,\nor interest in, the Opportunity or the Company. Confidential Information also includes the fact that the Confidential Information exists and has been\nmade available to the Counterparty, the fact that the Parties are considering the Opportunity, the potential terms of the Opportunity, and the fact that\ndiscussions are taking place concerning the Opportunity.\n“Opportunity” has the meaning set forth in the Background.\n“Representatives” means the officers, directors, employees, partners, members, managers, agents, advisors, subsidiaries, affiliates or\nrepresentatives of a Party.\n2. The Counterparty agrees to use the Confidential Information provided by the Company solely for the purpose of evaluating the Opportunity,\nand for no other purpose, and further agrees to keep confidential and not disclose to any third party any Confidential Information. Notwithstanding\nthe foregoing, the Counterparty may disclose such Confidential Information solely to those of its Representatives who (a) require such material for\nthe purpose of evaluating the Opportunity on behalf of the Counterparty, and (b) are informed by the Counterparty of the confidential nature of the\nConfidential Information and the obligations of this Agreement and agree to abide by the terms hereof as if they were the Counterparty hereunder.\nThe Counterparty shall take all actions necessary to cause its Representatives and affiliates who receive Confidential Information to comply with the\nterms of this Agreement as if they were the Counterparty hereunder. The Counterparty shall be responsible for any disclosure of Confidential\nInformation by its Representatives other than in accordance with the terms of this Agreement. The Counterparty acknowledges the confidential and\nproprietary nature of the Confidential Information provided by the Company and acknowledges and agrees that it is acquiring no rights whatsoever\nin or to such Confidential\nInformation. For avoidance of doubt, if the Parties do not consummate a transaction with respect to the Opportunity, neither the Counterparty nor its\nRepresentatives may use the Confidential Information for any purpose whatsoever. Further, for avoidance of doubt, the Parties acknowledge that\nthey may conduct competing businesses and nothing in this Agreement shall restrict or prohibit either Party from continuing to conduct its business\nand to compete with the other Party so long as such action does not violate the terms of this Agreement. The Counterparty acknowledges that the\nConfidential Information that may be disclosed by the Company or its Representatives will likely contain material, non-public information. The\nCounterparty acknowledges and understands that federal securities law and this Agreement restrict the Counterparty from pledging, selling, hedging,\ncontracting to sell, short-selling, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option, right, or\nwarrant to purchase or otherwise hypothecating transferring for value, directly or indirectly, any securities of the Company while in possession of\nmaterial non-public information regarding the Company.\n3. During the three-year period commencing on the Effective Date (the “Standstill Period”), neither the Counterparty nor any of the\nCounterparty’s Representatives will, in any manner, directly or indirectly, without the prior written approval of the Company’s board of directors:\n(a) make, effect, initiate, cause or participate in:\n(i) any acquisition of beneficial ownership of any securities of the Company or any securities of any subsidiary or other affiliate of\nthe Company,\n(ii) any acquisition of any assets of the Company or any assets of any subsidiary or other affiliate of the Company,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or\nextraordinary transaction involving the Company or any subsidiary or other affiliate of the Company, or involving any securities or\nassets of the Company or any securities or assets of any subsidiary or other affiliate of the Company, or\n(iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents with respect to any securities of the Company;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to any of the actions described in this Section 3;\n(c) act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors or policies of\nthe Company;\n(d) make any public disclosure or take any action that might require the Company to make a public announcement regarding any of the\ntypes of matters set forth in clause “(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)”\nor “(d)” of this sentence;\n(f) assist, induce or encourage any other person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this\nsentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other person relating to any of the foregoing; or\n(h) request or propose that the Company or any of the Company’s Representatives amend, waive or consider the amendment or waiver of\nany provision set forth in this Section 3.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.\n4. Confidential Information does not include information that the Counterparty demonstrates (a) is in the public domain through no fault of, or\ndisclosure by, the Counterparty or its Representatives, subsidiaries or affiliates, (b) was properly known to the Counterparty, without restriction, prior\nto disclosure by the Company, (c) was properly disclosed to the Counterparty by another person, but only if such person is not bound by a\nconfidentiality agreement with the Company or is not otherwise restricted from providing such information by a contractual, legal or fiduciary duty.\nAdditionally, notwithstanding any other provision of this Agreement, if the Counterparty or any Representative of the Counterparty is, at any time,\nlegally compelled to disclose any Confidential Information, the Counterparty will provide the Company with prompt notice thereof so that the\nCompany may seek an appropriate protective order or other appropriate relief, or waive compliance with the provisions of this Agreement. In the\nabsence of a protective order or a waiver from the Company, the Counterparty or its Representative may comply with such legal requirement by\ndisclosing only such Confidential Information as is legally required.\n5. Neither the Company nor any of its Representatives makes any representation or warranty (express or implied) as to the accuracy or\ncompleteness of the Confidential Information, except for those express representations and warranties that may be made and set forth in a definitive\nagreement regarding the Opportunity, if any, that is entered into between the Parties.\n6. If either Party decides not to proceed with the Opportunity or if asked by the Company at any time, the Counterparty will promptly return or\ndestroy all Confidential Information received under this Agreement, and all copies, extracts and other objects or items in which such Confidential\nInformation may be contained or embodied, and certify in writing that it has complied with this requirement.\n7. Without the prior consent of the Company, neither the Counterparty nor its Representatives will initiate contact with any employee of the\nCompany with respect to the Opportunity. The Counterparty agrees that, for a period of one year from the Effective Date of this Agreement, it will\nnot, and will not permit any controlled Representative to whom it has provided any Confidential Information to, directly or indirectly, solicit for\nemployment or hire any employee of the Company with whom the Counterparty has had contact or who became known to the Counterparty in\nconnection with consideration of the Opportunity; provided that the foregoing shall not prohibit general employment advertisements and other\nsimilar employment solicitations that are not targeted at employees of the Company.\n8. The Counterparty will promptly notify the Company upon discovery of any unauthorized use or disclosure of the Confidential Information,\nor any other breach of this Agreement by the Counterparty or any of its Representatives, and will cooperate with the Company to help the Company\nregain possession of the Confidential Information and prevent its unauthorized use or further disclosure.\n9. Each Party acknowledges and agrees that this Agreement does not obligate the other Party to disclose any information, including any\nConfidential Information, negotiate, or enter into any agreement or relationship with the other Party, or accept any offer from the other Party. Each\nParty further acknowledges and agrees that (a) the other Party and its Representatives shall be free to conduct any process for any transaction\ninvolving the Opportunity, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested\nparties and entering into a definitive agreement therewith without prior notice to the other Party or any other person), (b) any procedures relating to\nsuch process or transaction may be changed at any time without notice to the other Party or any other person, and (c) unless a definitive agreement is\nentered into among the Parties, neither Party shall have any claims whatsoever with respect to the Opportunity against the other Party or any third\nperson with whom a transaction is entered into by the other Party.\n10. The terms of this Agreement will remain in effect with respect to any particular Confidential Information for a period of five years\nfollowing the termination of discussion between the parties.\n11. The Counterparty acknowledges and agrees that any breach of this Agreement would cause irreparable harm to the Company for which\ndamages are not an adequate remedy, and that the Company shall therefore be entitled (without the posting of a bond or other security) to equitable\nrelief in addition to all other remedies available at law.\n12. This Agreement is governed by the internal laws of the State of Florida and may be modified or waived only in writing signed by the Party\nagainst which such modification or waiver is sought to be enforced. The Parties irrevocably and unconditionally consent to submit to the exclusive\njurisdiction of the courts of the State\nof Florida in Hillsborough County, Florida, for any actions, suits or proceedings arising out of or relating to this Agreement (and the Parties agree\nnot to commence any action, suit or proceeding relating thereto, except in such courts), and further agree that service of any process, summons,\nnotice or document by U.S. registered mail to the other Party’s address set forth next to their signature hereto shall be effective service of process for\nany action, suit or proceeding brought in any such court. The Parties irrevocably and unconditionally waive any objection to the laying of venue of\nany action, suit or proceeding arising out of this Agreement, in the courts of the State of Florida or the United States of America located in\nHillsborough County, Florida, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any\nsuch action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n13. Neither the failure nor delay by any Party in exercising any right hereunder will operate as a waiver of such right, and no single or partial\nexercise of a right will preclude any other or further exercise of such right. The term “person” means any individual, corporation, partnership, limited\nliability company, joint venture, estate, trust, association, organization, or other entity or governmental body. If any provision of this Agreement is\nfound to be unenforceable, such provision will be limited or deleted to the minimum extent necessary so that the remaining terms remain in full force\nand effect. The prevailing Party or Parties in any dispute or legal action regarding the subject matter of this Agreement shall be entitled to recover\nattorneys’ fees and costs.\n14. This Agreement may be executed and delivered by facsimile or .pdf signature and in two or more counterparts, each of which shall be\ndeemed an original, but all of which together shall constitute one and the same instrument.\n[Counterpart Signatures Follow]\nAccepted and Agreed as of 10 October, 2011 by:\n“Counterparty”\n/s/ Richard Steeves\nBy: Synergy Health plc\nName: Richard Steeves\nTitle: Group CEO\nCounterparty’s Address:\nSynergy Health plc\nGround Floor Stella\nWindmill Hill Business Park\nWhitehill Way, Swindon, SN5 6NX, UK\nAttention: Richard Steeves\n“Company”\nSRI/SURGICAL EXPRESS, INC.\nBy: /s/ Gerald Woodard\nName: Gerald Woodard\nTitle: CEO\nCompany’s Address:\n12425 Race Track Road\nTampa, FL 33626\nAttn: Gerald Woodard, Chief Executive Officer\nth	EX-99.E.3 3 d364852dex99e3.htm NON-DISCLOSURE AGREEMENT\nExhibit (e)(3)\nNON-DISCLOSURE AGREEMENT\nThis is a Non-Disclosure Agreement (this “Agreement”), effective as of the date stated below (the “Effective Date”), between SRI/Surgical\nExpress, Inc., a Florida corporation (the “Company”), and the undersigned (the “Counterparty”).\nBackground\nThe Parties are considering a potential business transaction (the “Opportunity”), and are entering into this Agreement so that the Company can\nshare confidential information pertinent to the Opportunity with confidence that the Counterparty will use such confidential information only to\nevaluate the Opportunity and will not disclose that confidential information, except in accordance with the terms of this Agreement. The\nCounterparty and the Company are sometimes referred to individually as a “Party” and collectively as the “Parties.”\n \nOperative Terms\nThe Parties agree as follows:\n1. These terms have the following definitions in this Agreement:\n“Confidential Information” means all information concerning or related to the business, operations, results of operations, assets and affairs of\nthe Company, including, but not limited to, financial and accounting information, budgets, projections, forecasts, business plans, operating methods,\nbusiness strategies, product and service information, product plans, product specifications, product designs, processes, plans, drawings, concepts,\nresearch and development data and materials, systems, techniques, trade secrets, intellectual property, software programs and works of authorship,\nknow-how, marketing and distribution plans, planning data, marketing strategies, price lists, market studies, employee lists, supplier lists, customer\nand prospect lists, and supplier and other customer information and data that the Company or its Representatives discloses (or has, prior to the date\nof this Agreement, disclosed) to the Counterparty or its Representatives in connection with the Opportunity, however documented or disclosed\n(whether or not such information is marked as confidential), together with any copies, extracts, analyses, compilations, studies or other documents\nprepared or received by the Counterparty or its Representatives, which contain or otherwise reflect such information or the Counterparty’s review of,\nor interest in, the Opportunity or the Company. Confidential Information also includes the fact that the Confidential Information exists and has been\nmade available to the Counterparty, the fact that the Parties are considering the Opportunity, the potential terms of the Opportunity, and the fact that\ndiscussions are taking place concerning the Opportunity.\n“Opportunity” has the meaning set forth in the Background.\n“Representatives” means the officers, directors, employees, partners, members, managers, agents, advisors, subsidiaries, affiliates or\nrepresentatives of a Party.\n2. The Counterparty agrees to use the Confidential Information provided by the Company solely for the purpose of evaluating the Opportunity,\nand for no other purpose, and further agrees to keep confidential and not disclose to any third party any Confidential Information. Notwithstanding\nthe foregoing, the Counterparty may disclose such Confidential Information solely to those of its Representatives who (a) require such material for\nthe purpose of evaluating the Opportunity on behalf of the Counterparty, and (b) are informed by the Counterparty of the confidential nature of the\nConfidential Information and the obligations of this Agreement and agree to abide by the terms hereof as if they were the Counterparty hereunder.\nThe Counterparty shall take all actions necessary to cause its Representatives and affiliates who receive Confidential Information to comply with the\nterms of this Agreement as if they were the Counterparty hereunder. The Counterparty shall be responsible for any disclosure of Confidential\nInformation by its Representatives other than in accordance with the terms of this Agreement. The Counterparty acknowledges the confidential and\nproprietary nature of the Confidential Information provided by the Company and acknowledges and agrees that it is acquiring no rights whatsoever\nin or to such Confidential\nInformation. For avoidance of doubt, if the Parties do not consummate a transaction with respect to the Opportunity, neither the Counterparty nor its\nRepresentatives may use the Confidential Information for any purpose whatsoever. Further, for avoidance of doubt, the Parties acknowledge that\nthey may conduct competing businesses and nothing in this Agreement shall restrict or prohibit either Party from continuing to conduct its business\nand to compete with the other Party so long as such action does not violate the terms of this Agreement. The Counterparty acknowledges that the\nConfidential Information that may be disclosed by the Company or its Representatives will likely contain material, non-public information. The\nCounterparty acknowledges and understands that federal securities law and this Agreement restrict the Counterparty from pledging, selling, hedging,\ncontracting to sell, short-selling, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option, right, or\nwarrant to purchase or otherwise hypothecating transferring for value, directly or indirectly, any securities of the Company while in possession of\nmaterial non-public information regarding the Company.\n3. During the three-year period commencing on the Effective Date (the “Standstill Period”), neither the Counterparty nor any of the\nCounterparty’s Representatives will, in any manner, directly or indirectly, without the prior written approval of the Company’s board of directors:\n(a) make, effect, initiate, cause or participate in:\n(i) any acquisition of beneficial ownership of any securities of the Company or any securities of any subsidiary or other affiliate of\nthe Company,\n(ii) any acquisition of any assets of the Company or any assets of any subsidiary or other affiliate of the Company,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or\nextraordinary transaction involving the Company or any subsidiary or other affiliate of the Company, or involving any securities or\nassets of the Company or any securities or assets of any subsidiary or other affiliate of the Company, or\n(iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents with respect to any securities of the Company;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to any of the actions described in this Section 3;\n(c) act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors or policies of\nthe Company;\n(d) make any public disclosure or take any action that might require the Company to make a public announcement regarding any of the\ntypes of matters set forth in clause “(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)”\nor “(d)” of this sentence;\n(f) assist, induce or encourage any other person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this\nsentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other person relating to any of the foregoing; or\n(h) request or propose that the Company or any of the Company’s Representatives amend, waive or consider the amendment or waiver of\nany provision set forth in this Section 3.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.\n4. Confidential Information does not include information that the Counterparty demonstrates (a) is in the public domain through no fault of, or\ndisclosure by, the Counterparty or its Representatives, subsidiaries or affiliates, (b) was properly known to the Counterparty, without restriction, prior\nto disclosure by the Company, (c) was properly disclosed to the Counterparty by another person, but only if such person is not bound by a\nconfidentiality agreement with the Company or is not otherwise restricted from providing such information by a contractual, legal or fiduciary duty.\nAdditionally, notwithstanding any other provision of this Agreement, if the Counterparty or any Representative of the Counterparty is, at any time,\nlegally compelled to disclose any Confidential Information, the Counterparty will provide the Company with prompt notice thereof so that the\nCompany may seek an appropriate protective order or other appropriate relief, or waive compliance with the provisions of this Agreement. In the\nabsence of a protective order or a waiver from the Company, the Counterparty or its Representative may comply with such legal requirement by\ndisclosing only such Confidential Information as is legally required.\n5. Neither the Company nor any of its Representatives makes any representation or warranty (express or implied) as to the accuracy or\ncompleteness of the Confidential Information, except for those express representations and warranties that may be made and set forth in a definitive\nagreement regarding the Opportunity, if any, that is entered into between the Parties.\n6. If either Party decides not to proceed with the Opportunity or if asked by the Company at any time, the Counterparty will promptly return or\ndestroy all Confidential Information received under this Agreement, and all copies, extracts and other objects or items in which such Confidential\nInformation may be contained or embodied, and certify in writing that it has complied with this requirement.\n7. Without the prior consent of the Company, neither the Counterparty nor its Representatives will initiate contact with any employee of the\nCompany with respect to the Opportunity. The Counterparty agrees that, for a period of one year from the Effective Date of this Agreement, it will\nnot, and will not permit any controlled Representative to whom it has provided any Confidential Information to, directly or indirectly, solicit for\nemployment or hire any employee of the Company with whom the Counterparty has had contact or who became known to the Counterparty in\nconnection with consideration of the Opportunity; provided that the foregoing shall not prohibit general employment advertisements and other\nsimilar employment solicitations that are not targeted at employees of the Company.\n8. The Counterparty will promptly notify the Company upon discovery of any unauthorized use or disclosure of the Confidential Information,\nor any other breach of this Agreement by the Counterparty or any of its Representatives, and will cooperate with the Company to help the Company\nregain possession of the Confidential Information and prevent its unauthorized use or further disclosure.\n9. Each Party acknowledges and agrees that this Agreement does not obligate the other Party to disclose any information, including any\nConfidential Information, negotiate, or enter into any agreement or relationship with the other Party, or accept any offer from the other Party. Each\nParty further acknowledges and agrees that (a) the other Party and its Representatives shall be free to conduct any process for any transaction\ninvolving the Opportunity, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested\nparties and entering into a definitive agreement therewith without prior notice to the other Party or any other person), (b) any procedures relating to\nsuch process or transaction may be changed at any time without notice to the other Party or any other person, and (c) unless a definitive agreement is\nentered into among the Parties, neither Party shall have any claims whatsoever with respect to the Opportunity against the other Party or any third\nperson with whom a transaction is entered into by the other Party.\n10. The terms of this Agreement will remain in effect with respect to any particular Confidential Information for a period of five years\nfollowing the termination of discussion between the parties.\n11. The Counterparty acknowledges and agrees that any breach of this Agreement would cause irreparable harm to the Company for which\ndamages are not an adequate remedy, and that the Company shall therefore be entitled (without the posting of a bond or other security) to equitable\nrelief in addition to all other remedies available at law.\n12. This Agreement is governed by the internal laws of the State of Florida and may be modified or waived only in writing signed by the Party\nagainst which such modification or waiver is sought to be enforced. The Parties irrevocably and unconditionally consent to submit to the exclusive\njurisdiction of the courts of the State\nof Florida in Hillsborough County, Florida, for any actions, suits or proceedings arising out of or relating to this Agreement (and the Parties agree\nnot to commence any action, suit or proceeding relating thereto, except in such courts), and further agree that service of any process, summons,\nnotice or document by U.S. registered mail to the other Party’s address set forth next to their signature hereto shall be effective service of process for\nany action, suit or proceeding brought in any such court. The Parties irrevocably and unconditionally waive any objection to the laying of venue of\nany action, suit or proceeding arising out of this Agreement, in the courts of the State of Florida or the United States of America located in\nHillsborough County, Florida, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any\nsuch action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n13. Neither the failure nor delay by any Party in exercising any right hereunder will operate as a waiver of such right, and no single or partial\nexercise of a right will preclude any other or further exercise of such right. The term “person” means any individual, corporation, partnership, limited\nliability company, joint venture, estate, trust, association, organization, or other entity or governmental body. If any provision of this Agreement is\nfound to be unenforceable, such provision will be limited or deleted to the minimum extent necessary so that the remaining terms remain in full force\nand effect. The prevailing Party or Parties in any dispute or legal action regarding the subject matter of this Agreement shall be entitled to recover\nattorneys’ fees and costs.\n14. This Agreement may be executed and delivered by facsimile or .pdf signature and in two or more counterparts, each of which shall be\ndeemed an original, but all of which together shall constitute one and the same instrument.\n[Counterpart Signatures Follow]\nAccepted and Agreed as of 10t October, 2011 by:\n“Counterparty”\n/s/ Richard Steeves\nBy: Synergy Health plc\nName: Richard Steeves\nTitle: Group CEO\nCounterparty’s Address:\nSynergy Health plc\nGround Floor Stella\nWindmill Hill Business Park\nWhitehill Way, Swindon, SN5 6NX, UK\nAttention: Richard Steeves\n“Company”\nSRI/SURGICAL EXPRESS, INC.\nBy: /s/ Gerald Woodard\nName: Gerald Woodard\nTitle: CEO\nCompany’s Address:\n12425 Race Track Road\nTampa, FL 33626\nAttn: Gerald Woodard, Chief Executive Officer	EX-99.E.3 3 d364852dex99e3.htm NON-DISCLOSURE AGREEMENT\nExhibit (e)(3)\nNON-DISCLOSURE AGREEMENT\nThis is a Non-Disclosure Agreement (this "Agreement"), effective as of the date stated below (the "Effective Date"), between SRI/Surgical\nExpress, Inc., a Florida corporation (the "Company."), and the undersigned (the "Counterparty.").\nBackground\nThe Parties are considering a potential business transaction (the "Opportunity."), and are entering into this Agreement so that the\nCompany\ncan\nshare confidential information pertinent to the Opportunity with confidence that the Counterparty will use such confidential information only to\nevaluate the Opportunity and will not disclose that confidential information, except in accordance with the terms of this Agreement The\nCounterparty and the Company are sometimes referred to individually as a "Party." and collectively as the "Parties."\nOperative Terms\nThe Parties agree as follows:\n1. These terms have the following definitions in this Agreement:\n"Confidential Information" means all information concerning or related to the business, operations, results of operations, assets and affairs of\nthe Company, including, but not limited to, financial and accounting information, budgets, projections, forecasts, business plans, operating methods,\nbusiness strategies, product and service information, product plans, product specifications, product designs, processes, plans, drawings, concepts,\nresearch and development data and materials, systems, techniques, trade secrets, intellectual property, software programs and works of authorship,\nknow-how, marketing and distribution plans, planning data, marketing strategies, price lists, market studies, employee lists, supplier lists, customer\nand prospect lists, and supplier and other customer information and data that the Company or its Representatives discloses (or has, prior to the date\nof this Agreement, disclosed) to the Counterparty or its Representatives in connection with the Opportunity, however documented or disclosed\n(whether or not such information is marked as confidential), together with any copies, extracts, analyses, compilations, studies or other documents\nprepared or received by the Counterparty or its Representatives, which contain or otherwise reflect such information or the Counterparty's review of,\nor interest in, the Opportunity or the Company. Confidential Information also includes the fact that the Confidential Information exists and has been\nmade available to the Counterparty, the fact that the Parties are considering the Opportunity, the potential terms of the Opportunity, and the fact that\ndiscussions are taking place concerning the Opportunity.\n"Opportunity." has the meaning set forth in the Background.\n"Representatives" means the officers, directors, employees, partners, members, managers, agents, advisors, subsidiaries, affiliates or\nrepresentatives of a Party.\n2. The Counterparty agrees to use the Confidential Information provided by the Company solely for the purpose of evaluating the Opportunity,\nand\nfor\nno\nother\npurpose,\nand\nfurther\nagrees\nto\nkeep\nconfidential\nand\nnot\ndisclose\nto\nany\nthird\nparty\nany\nConfidential\nInformation.\nNotwithstanding\nthe foregoing, the Counterparty may disclose such Confidentia Information solely to those of its Representatives who (a) require such material for\nthe purpose of evaluating the Opportunity on behalf of the Counterparty, and (b) are informed by the Counterparty of the confidential nature of the\nConfidential Information and the obligations of this Agreement and agree to abide by the terms hereof as if they were the Counterparty hereunder.\nThe Counterparty shal take all actions necessary to cause its Representatives and affiliates who receive Confidential Information to comply with the\nterms of this Agreement as if they were the Counterparty hereunder. The Counterparty shall be responsible for any disclosure of Confidential\nInformation by its Representatives other than in accordance with the terms of this Agreement. The Counterparty acknowledges the confidential and\nproprietary nature of the Confidential Information provided by the Company and acknowledges and agrees that it is acquiring no rights whatsoever\nin or to such Confidential\nInformation. For avoidance of doubt, if the Parties do not consummate a transaction with respect to the Opportunity, neither the Counterparty nor its\nRepresentatives may use the Confidential Information for any purpose whatsoever. Further, for avoidance of doubt, the Parties acknowledge that\nthey may conduct competing businesses and nothing in this Agreement shall restrict or prohibit either Party from continuing to conduct its business\nand to compete with the other Party so long as such action does not violate the terms of this Agreement. The Counterparty acknowledges that the\nConfidential Information that may be disclosed by the Company or its Representatives will likely contain material, non-public information. The\nCounterparty acknowledges and understands that federal securities law and this Agreement restrict the Counterparty from pledging, selling, hedging,\ncontracting to sell, short-selling, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option, right, or\nwarrant to purchase or otherwise hypothecating transferring for value, directly or indirectly, any securities of the Company while in possession of\nmaterial non-public information regarding the Company.\n3. During the three-year period commencing on the Effective Date (the "Standstill Period"), neither the Counterparty nor any of the\nCounterparty's Representatives will, in any manner, directly or indirectly, without the prior written approval of the Company's board of directors:\n(a) make, effect, initiate, cause or participate in:\n(i) any acquisition of beneficial ownership of any securities of the Company or any securities of any subsidiary or other affiliate of\nthe Company,\n(ii) any acquisition of any assets of the Company or any assets of any subsidiary or other affiliate of the Company,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or\nextraordinary transaction involving the Company or any subsidiary or other affiliate of the Company, or involving any securities or\nassets of the Company or any securities or assets of any subsidiary or other affiliate of the Company, or\n(iv) any "solicitation" of "proxies" (as those terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents with respect to any securities of the Company;\n(b) form, join or participate in a "group" (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to any of the actions described in this Section 3;\n(c) act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors or policies of\nthe Company;\n(d) make any public disclosure or take any action that might require the Company to make a public announcement regarding any of the\ntypes of matters set forth in clause "(a)" of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause "(a)", "(b)", "(c)"\nor "(d)" of this sentence;\n(f) assist, induce or encourage any other person to take any action of the type referred to in clause "(a)", "(b)", "(c)", "(d)" or "(e)" of this\nsentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other person relating to any of the foregoing; or\n(h) request or propose that the Company or any of the Company's Representatives amend, waive or consider the amendment or waiver of\nany provision set forth in this Section 3.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.\n4. Confidential Information does not include information that the Counterparty demonstrates (a) is in the public domain through no fault of, or\ndisclosure by, the Counterparty or its Representatives, subsidiaries or affiliates, (b) was properly known to the Counterparty, without restriction, prior\nto disclosure by the Company, (c) was properly disclosed to the Counterparty by another person, but only if such person is not bound by\na\nconfidentiality agreement with the Company or is not otherwise restricted from providing such information by a contractual, legal or fiduciary duty.\nAdditionally, notwithstanding any other provision of this Agreement, if the Counterparty or any Representative of the Counterparty is, at any time,\nlegally compelled to disclose any Confidentia Information, the Counterparty will provide the Company with prompt notice thereof so that the\nCompany may seek an appropriate protective order or other appropriate relief, or waive compliance with the provisions of this Agreement. In the\nabsence of a protective order or a waiver from the Company, the Counterparty or its Representative may comply with such legal requirement by\ndisclosing only such Confidential Information as is legally required.\n5. Neither the Company nor any of its Representatives makes any representation or warranty (express or implied) as to the accuracy or\ncompleteness of the Confidential Information, except for those express representations and warranties that may be made and set forth in a definitive\nagreement regarding the Opportunity, if any, that is entered into between the Parties.\n6.\nIf either Party decides not to proceed with the Opportunity or if asked by the Company at any time, the Counterparty will promptly return or\ndestroy all Confidential Information received under this Agreement, and all copies, extracts and other objects or items in which such Confidential\nInformation may be contained or embodied, and certify in writing that it has complied with this requirement.\n7. Without the prior consent of the Company, neither the Counterparty nor its Representatives will initiate contact with any employee of\nthe\nCompany with respect to the Opportunity. The Counterparty agrees that, for a period of one year from the Effective Date of this Agreement, it will\nnot, and will not permit any controlled Representative to whom it has provided any Confidential Information to, directly or indirectly, solicit for\nemployment or hire any employee of the Company with whom the Counterparty has had contact or who became known to the Counterparty in\nconnection with consideration of the Opportunity; provided that the foregoing shall not prohibit general employment advertisements and other\nsimilar employment solicitations that are not targeted at employees of the Company.\n8. The Counterparty will promptly notify the Company upon discovery of any unauthorized use or disclosure of the Confidential Information,\nor any other breach of this Agreement by the Counterparty or any of its Representatives, and will cooperate with the Company to help the Company\nregain possession of the Confidential Information and prevent its unauthorized use or further disclosure.\n9. Each Party acknowledges and agrees that this Agreement does not obligate the other Party to disclose any information, including any\nConfidential Information, negotiate, or enter into any agreement or relationship with the other Party, or accept any offer from the other Party. Each\nParty further acknowledges and agrees that (a) the other Party and its Representatives shall be free to conduct any process for any transaction\ninvolving the Opportunity, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested\nparties and entering into a definitive agreement therewith without prior notice to the other Party or any other person), (b) any procedures relating to\nsuch process or transaction may be changed at any time without notice to the other Party or any other person, and (c) unless a definitive agreement is\nentered into among the Parties, neither Party shall have any claims whatsoever with respect to the Opportunity against the other Party or any third\nperson with whom a transaction is entered into by the other Party.\n10. The terms of this Agreement will remain in effect with respect to any particular Confidential Information for a period of five years\nfollowing the termination of discussion between the parties\n11. The Counterparty acknowledges and agrees that any breach of this Agreement would cause irreparable harm to the Company for which\ndamages are not an adequate remedy, and that the Company shall therefore be entitled (without the posting of a bond or other security) to equitable\nrelief in addition to all other remedies available at law.\n12.\nThis Agreement is governed by the internal laws of the State of Florida and may be modified or waived only in writing signed by the Party\nagainst which such modification or waiver is sought to be enforced. The Parties irrevocably and unconditionally consent to submit to the exclusive\njurisdiction of the courts of the State\nof Florida in Hillsborough County, Florida, for any actions, suits or proceedings arising out of or relating to this Agreement (and the Parties agree\nnot to commence any action, suit or proceeding relating thereto, except in such courts), and further agree that service of any process, summons,\nnotice or document by U.S. registered mail to the other Party's address set forth next to their signature hereto shall be effective service of process\nfor\nany action, suit or proceeding brought in any such court. The Parties irrevocably and unconditionally waive any objection to the laying of venue of\nany action, suit or proceeding arising out of this Agreement, in the courts of the State of Florida or the United States of America located in\nHillsborough County, Florida, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any\nsuch action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n13. Neither the failure nor delay by any Party in exercising any right hereunder will operate as a waiver of such right, and no single or partial\nexercise of a right will preclude any other or further exercise of such right. The term "person" means any individual, corporation, partnership, limited\nliability company, joint venture, estate, trust, association, organization, or other entity or governmental body. If any provision of this Agreement is\nfound to be unenforceable, such provision will be limited or deleted to the minimum extent necessary so that the remaining terms remain in full force\nand effect. The prevailing Party or Parties in any dispute or legal action regarding the subject matter of this Agreement shall be entitled to recover\nattorneys' fees and costs.\n14. This Agreement may be executed and delivered by facsimile or .pdf signature and in two or more counterparts, each of which shall be\ndeemed an original, but all of which together shall constitute one and the same instrument.\n[Counterpart Signatures Follow]\nAccepted and Agreed as of 10th October, 2011 by:\n"Counterparty"\n/s/ Richard Steeves\nBy: Synergy Health plc\nName: Richard Steeves\nTitle: Group CEO\nCounterparty's Address:\nSynergy Health plc\nGround Floor Stella\nWindmill Hill Business Park\nWhitehill Way, Swindon, SN5 6NX, UK\nAttention: Richard Steeves\n"Company"\nSRI/SURGICAL EXPRESS, INC.\nBy: /s/ Gerald Woodard\nName: Gerald Woodard\nTitle: CEO\nCompany's Address:\n12425 Race Track Road\nTampa, FL 33626\nAttn: Gerald Woodard, Chief Executive Officer	EX-99.E .3 3 d364852dex99e3.htm NON-DISCLOSURE AGREEMENT\nExhibit (e)(3)\nNON-DISCLOSURE AGREEMENT\nThis is a Non-Disclosure Agreement (this “Agreement”), effective as of the date stated below (the “Effective Date”), between SRI/Surgical\nExpress, Inc., a Florida corporation (the “Company”), and the undersigned (the “Counterparty”).\nBackground\nThe Parties are considering a potential business transaction (the “Opportunity”), and are entering into this Agreement so that the Company can\nshare confidential information pertinent to the Opportunity with confidence that the Counterparty will use such confidential information only to\nevaluate the Opportunity and will not disclose that confidential information, except in accordance with the terms of this Agreement. The\nCounterparty and the Company are sometimes referred to individually as a “Party” and collectively as the “Parties.”\nOperative Terms\nThe Parties agree as follows:\n1. These terms have the following definitions in this Agreement:\n“Confidential Information” means all information concerning or related to the business, operations, results of operations, assets and affairs of\nthe Company, including, but not limited to, financial and accounting information, budgets, projections, forecasts, business plans, operating methods,\nbusiness strategies, product and service information, product plans, product specifications, product designs, processes, plans, drawings, concepts,\nresearch and development data and materials, systems, techniques, trade secrets, intellectual property, software programs and works of authorship,\nknow-how, marketing and distribution plans, planning data, marketing strategies, price lists, market studies, employee lists, supplier lists, customer\nand prospect lists, and supplier and other customer information and data that the Company or its Representatives discloses (or has, prior to the date\nof this Agreement, disclosed) to the Counterparty or its Representatives in connection with the Opportunity, however documented or disclosed\n(whether or not such information is marked as confidential), together with any copies, extracts, analyses, compilations, studies or other documents\nprepared or received by the Counterparty or its Representatives, which contain or otherwise reflect such information or the Counterparty’s review of,\nor interest in, the Opportunity or the Company. Confidential Information also includes the fact that the Confidential Information exists and has been\nmade available to the Counterparty, the fact that the Parties are considering the Opportunity, the potential terms of the Opportunity, and the fact that\ndiscussions are taking place concerning the Opportunity.\n“Opportunity” has the meaning set forth in the Background.\n“Representatives” means the officers, directors, employees, partners, members, managers, agents, advisors, subsidiaries, affiliates or\nrepresentatives of a Party.\n2. The Counterparty agrees to use the Confidential Information provided by the Company solely for the purpose of evaluating the Opportunity,\nand for no other purpose, and further agrees to keep confidential and not disclose to any third party any Confidential Information. Notwithstanding\nthe foregoing, the Counterparty may disclose such Confidential Information solely to those of its Representatives who (a) require such material for\nthe purpose of evaluating the Opportunity on behalf of the Counterparty, and (b) are informed by the Counterparty of the confidential nature of the\nConfidential Information and the obligations of this Agreement and agree to abide by the terms hereof as if they were the Counterparty hereunder.\nThe Counterparty shall take all actions necessary to cause its Representatives and affiliates who receive Confidential Information to comply with the\nterms of this Agreement as if they were the Counterparty hereunder. The Counterparty shall be responsible for any disclosure of Confidential\nInformation by its Representatives other than in accordance with the terms of this Agreement. The Counterparty acknowledges the confidential and\nproprietary nature of the Confidential Information provided by the Company and acknowledges and agrees that it is acquiring no rights whatsoever\nin or to such Confidential\nInformation. For avoidance of doubt, if the Parties do not consummate a transaction with respect to the Opportunity, neither the Counterparty nor its\nRepresentatives may use the Confidential Information for any purpose whatsoever. Further, for avoidance of doubt, the Parties acknowledge that\nthey may conduct competing businesses and nothing in this Agreement shall restrict or prohibit either Party from continuing to conduct its business\nand to compete with the other Party so long as such action does not violate the terms of this Agreement. The Counterparty acknowledges that the\nConfidential Information that may be disclosed by the Company or its Representatives will likely contain material, non-public information. The\nCounterparty acknowledges and understands that federal securities law and this Agreement restrict the Counterparty from pledging, selling, hedging,\ncontracting to sell, short-selling, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option, right, or\nwarrant to purchase or otherwise hypothecating transferring for value, directly or indirectly, any securities of the Company while in possession of\nmaterial non-public information regarding the Company.\n3. During the three-year period commencing on the Effective Date (the “Standstill Period”), neither the Counterparty nor any of the\nCounterparty’s Representatives will, in any manner, directly or indirectly, without the prior written approval of the Company’s board of directors:\n(a) make, effect, initiate, cause or participate in:\n(i) any acquisition of beneficial ownership of any securities of the Company or any securities of any subsidiary or other affiliate of\nthe Company,\n(ii) any acquisition of any assets of the Company or any assets of any subsidiary or other affiliate of the Company,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or\nextraordinary transaction involving the Company or any subsidiary or other affiliate of the Company, or involving any securities or\nassets of the Company or any securities or assets of any subsidiary or other affiliate of the Company, or\n(iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents with respect to any securities of the Company;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to any of the actions described in this Section 3;\n(c) act, alone or in concert with others, to seek to control, advise, change or influence the management, board of directors or policies of\nthe Company;\n(d) make any public disclosure or take any action that might require the Company to make a public announcement regarding any of the\ntypes of matters set forth in clause “(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)”\nor “(d)” of this sentence;\n(f) assist, induce or encourage any other person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of this\nsentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other person relating to any of the foregoing; or\n(h) request or propose that the Company or any of the Company’s Representatives amend, waive or consider the amendment or waiver of\nany provision set forth in this Section 3.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.\n4. Confidential Information does not include information that the Counterparty demonstrates (a) is in the public domain through no fault of, or\ndisclosure by, the Counterparty or its Representatives, subsidiaries or affiliates, (b) was properly known to the Counterparty, without restriction, prior\nto disclosure by the Company, (c) was properly disclosed to the Counterparty by another person, but only if such person is not bound by a\nconfidentiality agreement with the Company or is not otherwise restricted from providing such information by a contractual, legal or fiduciary duty.\nAdditionally, notwithstanding any other provision of this Agreement, if the Counterparty or any Representative of the Counterparty is, at any time,\nlegally compelled to disclose any Confidential Information, the Counterparty will provide the Company with prompt notice thereof so that the\nCompany may seek an appropriate protective order or other appropriate relief, or waive compliance with the provisions of this Agreement. In the\nabsence of a protective order or a waiver from the Company, the Counterparty or its Representative may comply with such legal requirement by\ndisclosing only such Confidential Information as is legally required.\n5. Neither the Company nor any of its Representatives makes any representation or warranty (express or implied) as to the accuracy or\ncompleteness of the Confidential Information, except for those express representations and warranties that may be made and set forth in a definitive\nagreement regarding the Opportunity, if any, that is entered into between the Parties.\n6. If either Party decides not to proceed with the Opportunity or if asked by the Company at any time, the Counterparty will promptly return or\ndestroy all Confidential Information received under this Agreement, and all copies, extracts and other objects or items in which such Confidential\nInformation may be contained or embodied, and certify in writing that it has complied with this requirement.\n7. Without the prior consent of the Company, neither the Counterparty nor its Representatives will initiate contact with any employee of the\nCompany with respect to the Opportunity. The Counterparty agrees that, for a period of one year from the Effective Date of this Agreement, it will\nnot, and will not permit any controlled Representative to whom it has provided any Confidential Information to, directly or indirectly, solicit for\nemployment or hire any employee of the Company with whom the Counterparty has had contact or who became known to the Counterparty in\nconnection with consideration of the Opportunity; provided that the foregoing shall not prohibit general employment advertisements and other\nsimilar employment solicitations that are not targeted at employees of the Company.\n8. The Counterparty will promptly notify the Company upon discovery of any unauthorized use or disclosure of the Confidential Information,\nor any other breach of this Agreement by the Counterparty or any of its Representatives, and will cooperate with the Company to help the Company\nregain possession of the Confidential Information and prevent its unauthorized use or further disclosure.\n9. Each Party acknowledges and agrees that this Agreement does not obligate the other Party to disclose any information, including any\nConfidential Information, negotiate, or enter into any agreement or relationship with the other Party, or accept any offer from the other Party. Each\nParty further acknowledges and agrees that (a) the other Party and its Representatives shall be free to conduct any process for any transaction\ninvolving the Opportunity, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any other interested\nparties and entering into a definitive agreement therewith without prior notice to the other Party or any other person), (b) any procedures relating to\nsuch process or transaction may be changed at any time without notice to the other Party or any other person, and (c) unless a definitive agreement is\nentered into among the Parties, neither Party shall have any claims whatsoever with respect to the Opportunity against the other Party or any third\nperson with whom a transaction is entered into by the other Party.\n10. The terms of this Agreement will remain in effect with respect to any particular Confidential Information for a period of five years\nfollowing the termination of discussion between the parties.\n11. The Counterparty acknowledges and agrees that any breach of this Agreement would cause irreparable harm to the Company for which\ndamages are not an adequate remedy, and that the Company shall therefore be entitled (without the posting of a bond or other security) to equitable\nrelief in addition to all other remedies available at law.\n12. This Agreement is governed by the internal laws of the State of Florida and may be modified or waived only in writing signed by the Party\nagainst which such modification or waiver is sought to be enforced. The Parties irrevocably and unconditionally consent to submit to the exclusive\njurisdiction of the courts of the State\nof Florida in Hillsborough County, Florida, for any actions, suits or proceedings arising out of or relating to this Agreement (and the Parties agree\nnot to commence any action, suit or proceeding relating thereto, except in such courts), and further agree that service of any process, summons,\nnotice or document by U.S. registered mail to the other Party’s address set forth next to their signature hereto shall be effective service of process for\nany action, suit or proceeding brought in any such court. The Parties irrevocably and unconditionally waive any objection to the laying of venue of\nany action, suit or proceeding arising out of this Agreement, in the courts of the State of Florida or the United States of America located in\nHillsborough County, Florida, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any\nsuch action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n13. Neither the failure nor delay by any Party in exercising any right hereunder will operate as a waiver of such right, and no single or partial\nexercise of a right will preclude any other or further exercise of such right. The term “person” means any individual, corporation, partnership, limited\nliability company, joint venture, estate, trust, association, organization, or other entity or governmental body. If any provision of this Agreement is\nfound to be unenforceable, such provision will be limited or deleted to the minimum extent necessary so that the remaining terms remain in full force\nand effect. The prevailing Party or Parties in any dispute or legal action regarding the subject matter of this Agreement shall be entitled to recover\nattorneys’ fees and costs.\n14. This Agreement may be executed and delivered by facsimile or .pdf signature and in two or more counterparts, each of which shall be\ndeemed an original, but all of which together shall constitute one and the same instrument.\n[Counterpart Signatures Follow]\nAccepted and Agreed as of 10 October, 2011 by:\n“Counterparty”\n/s/ Richard Steeves\nBy: Synergy Health plc\nName: Richard Steeves\nTitle: Group CEO\nCounterparty’s Address:\nSynergy Health plc\nGround Floor Stella\nWindmill Hill Business Park\nWhitehill Way, Swindon, SN5 6NX, UK\nAttention: Richard Steeves\n“Company”\nSRI/SURGICAL EXPRESS, INC.\nBy: /s/ Gerald Woodard\nName: Gerald Woodard\nTitle: CEO\nCompany’s Address:\n12425 Race Track Road\nTampa, FL 33626\nAttn: Gerald Woodard, Chief Executive Officer\nth
+a7218ec1b4c89421a3ce2ecd4ee5765e.pdf	effective_date jurisdiction party term	EX-10.38 10 dex1038.htm NON-COMPETITION, NON-SOLICITATION, NON-DISPARAGEMENT &\nCONFIDENTIALITY AGREEMENT\nExhibit 10.38\nRETENTION PAYMENT, NON-COMPETITION, NON-SOLICITATION,\nNON-DISPARAGEMENT, AND CONFIDENTIALITY AGREEMENT\nPhillip J. Gaines:\nYRC Worldwide, Inc., a Delaware corporation (“YRCW”), has determined that you are important to the operation of the business of YRCW\nand its affiliates As such, YRCW desires to provide you with an incentive to remain employed with YRCW through and after July 1, 2010 (the\n“Vesting Date”). Accordingly, YRCW is pleased to offer you the opportunity to receive the Retention Payment (defined below) described in this\nRetention Payment, Non-Competition, Non-Solicitation, Non-Disparagement, and Confidentiality Agreement (this “Agreement”), subject to the\nterms and conditions set forth below.\nIn addition, in the course of your work, you will, or have, become aware of information of a confidential nature pertaining to the business of\nYRCW. YRCW maintains policies and procedures with respect to the use and the dissemination of confidential information. Your employment\ncreates a relationship of confidence and trust between you and YRCW with respect to any information applicable to the business of YRCW which\nmay be, or has been, made known to you by YRCW or learned by you in the course of your work. You understand that you have an obligation to\npreserve the confidentiality of such information and use it only for the purpose for which it was obtained.\nIn consideration for the Retention Payment and confidential information, the receipt and adequacy of which are hereby acknowledged, you\nunderstand and agree that your undertakings set forth below are material and essential terms to YRCW, and accordingly you expressly agree that:\n1. Retention Payment. Subject to the terms and restrictions set forth in this paragraph, YRCW will pay you a retention payment in an amount\nequal to one times your base salary $340,000 as of the date of this Agreement (the “Retention Payment”); provided, you are still employed by\nYRCW on the Vesting Date. Unless otherwise provided within this Agreement, the Retention Payment will vest and become payable, less\napplicable tax withholding or other deductions, on the Vesting Date. If your employment with YRCW ends as a result of your resignation for\nany reason or your termination by YRCW with Cause before the Vesting Date, the Retention Payment will not vest and you will not be paid\nthe Retention Payment. If your employment is terminated by YRCW without Cause before the Vesting Date, the Retention Payment will vest\nand will be paid to you, less applicable tax withholding or other deductions, six months following your termination by YRCW without Cause;\nprovided, you have not breached any applicable provision of this Agreement, in which case the Retention Payment will not vest and YRCW\nwill withhold payment of the Retention Payment as damages for any such breach. For purposes of this Agreement, “Cause” shall mean any of\nthe following: (i) your conviction of a felony involving acts of dishonesty, fraud, or moral turpitude; (ii) your willful or repeated failure to\nperform your duties following 30 days notice of such failure and your failure to cure within such 30 days; (iii) willful misconduct material to\nyour employment; (iv) material breach of YRCW policies or rules of which you have been made aware following 30 days notice of such\nbreach and your failure to cure within such 30 days; (v) your material and demonstrable dishonesty related to your employment; or (vi) gross\nnegligence in the performance of your job duties. For purposes of the Agreement, your employment with YRCW will not be considered\nterminated without Cause unless the termination without Cause meets the requirements of a “separation from service” as defined in\nSection 409A.\n1\n2. Non-Competition. You acknowledge that the agreements and covenants contained in this Section 2 of this Agreement are essential to protect\nthe value of the business and assets of YRCW and its affiliates and by your prior and continued employment with YRCW you have obtained,\nand will continue to obtain, valuable confidential information, knowledge, contacts, and experience, and there is a substantial probability that\nsuch confidential information, knowledge, contacts, and experience could be used to the substantial advantage of a competitor of YRCW or its\naffiliates to YRCW’s or its affiliates’ substantial detriment. Therefore, you agree that so long as you are employed by YRCW and for the\nperiod commencing as of the day of your termination with YRCW, whether with or without Cause and whether before or after receipt of the\nRetention Payment, and ending 6 months following termination of your employment with YRCW (the “Restricted Period”), you shall not, and\nshall cause your controlled affiliates not to, directly or indirectly (other than in your capacity as an employee of YRCW or any of its affiliates),\nown, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary,\nfinancial, or otherwise), or participate in the ownership, management, operation, or control of any business of providing products or services of\nthe same or similar type as the products or services sold or delivered (or, pursuant to an existing business plan, will be sold or delivered) to\ncustomers of YRCW or any of its affiliates (the “Business”) in any geographic region for which you had direct or indirect responsibility on\nbehalf of YRCW or any of its affiliates or in any geographic region for which you had confidential information of YRCW or any of its\naffiliates.\n3. Non-Solicitation. During the Restricted Period, you shall not and shall cause your controlled affiliates not to (other than in your capacity as an\nemployee of YRCW or its affiliates): (i) cause, solicit, induce, or encourage any employees, consultants, or contractors of YRCW or its\naffiliates to leave such employment or service, (ii) hire, employ, or otherwise engage any such individual, (iii) cause, induce, or encourage any\nactual or prospective client, customer, supplier, or licensor of YRCW or its affiliates (including any existing or former customers of YRCW or\nits affiliates) to terminate or modify any such actual or prospective business relationship with YRCW or its affiliates, or (iv) develop a business\nrelationship with any actual or prospective client, customer, supplier, or licensor to cause, induce, or encourage such individual to become a\nclient, customer, supplier, or licensor of any business in which you are engaged that is competitive with the Business. The restrictions relating\nto actual or prospective clients, customers, suppliers, or licensors in this paragraph apply only to (a) those actual or prospective clients,\ncustomers, suppliers, or licensors with whom you had contact on behalf of YRCW during the last 12 months of your employment with YRCW,\nor (b) any of YRCW’s actual or prospective clients, customers, suppliers, or licensors about whom you had any confidential information\nduring the last 12 months of your employment with YRCW. In no event shall it be a violation of this Section 3 to engage in solicitations\nincidental to general advertising or other general solicitation in the ordinary course not specifically targeted at such persons or to employ any\nperson not solicited in violation hereof.\n4. Non-Disparagement. You agree that, during your employment with YRCW or at any time thereafter, you shall not make any public statement\nthat is materially disparaging of the business of YRCW or its affiliates, or to the business reputation of any of the executive officers of YRCW\nor its affiliates or any of the employees of YRCW or its affiliates who are known to you to be employees of YRCW or its affiliates at the time\nof any such public statement. Your obligations under this Section 4 shall not apply to disclosures required by applicable law, regulation, or\norder of a court or governmental agency.\n2\n5. Confidentiality. All information related to the business of YRCW or its affiliates that may be obtained by you from any source as a result of\nyour employment shall be considered as confidential. Materials contained in customers’ files should always be regarded as confidential. You\nshould always maintain appropriate administrative, technical, and physical safeguards over records in your possession to prevent unauthorized\naccess. Information regarding strategic or tactical business plans; undisclosed business, operational, or financial data; ideas, processes,\nmethods, techniques, systems, non-public information, models, devices, programs, computer software, or related information; documents\nrelating to regulatory matters or correspondence with governmental entities; undisclosed information concerning any past, pending, or\nthreatened legal dispute; pricing or cost data; the identity, reports, or analysis of business prospects; business transactions that are contemplated\nor planned; research data; personnel information or data; identities of users or purchasers of YRCW’s or its affiliates’ products or services; or\nany business methods, operations, or results of YRCW or its affiliates may not be disclosed to competitors, to the public, or to any person, nor\ncan the preceding information be otherwise used except as your duties at YRCW may require or with the prior written approval of an\nauthorized senior officer of YRCW. This applies to the period of your employment and thereafter. Trade practices, procedures, software, or\nother strategies which you develop in the course of performing responsibilities or using YRCW equipment or facilities are the property of\nYRCW. Upon termination of your employment, you are required to deliver to YRCW all documents, recordings, and other tangible records\n(including tapes, discs, or other similar media) that contain or are derived from YRCW’s or its affiliates’ confidential information.\n6. Reasonableness and Damages. You agree that the above obligations and covenants are reasonable in duration and scope, and agree that any\narbitration panel or court of competent jurisdiction may reform such obligations to the extent necessary to enforce them under applicable law.\nYou further agree and acknowledge that violation of these obligations and covenants would cause immeasurable and irreparable damage to\nYRCW and its affiliates. Accordingly, you agree that upon any actual or threatened violation of any of these obligations and covenants (i) you\nare required to return the Retention Payment to YRCW, and (ii) YRCW is entitled to withhold payment of the Retention Payment, to injunctive\nrelief in any court of competent jurisdiction, and to any other remedies it may have.\nThe provisions of this Agreement are in addition to the provisions in any written employment agreement between YRCW and you, and will\nnot affect your responsibilities or any other rights of YRCW under such agreements. This Agreement is not a contract of continuing employment.\nEmployment is for no fixed term, and either you or YRCW may decide to terminate the employment relationship at any time for any reason.\nThis Agreement shall be governed by Kansas law, without regard to its choice of law principles, and will be binding on you, your heirs,\nexecutors, assigns, and administrators, and shall inure to the benefit of YRCW, its successors and assigns, and shall survive the termination of your\nemployment with YRCW, regardless of the manner of such termination.\nEach provision of this Agreement will be interpreted on its own. If any provision is held to be unenforceable as written, it will be enforced to\nthe extent reasonable under the circumstances. In any case, the other provisions of this Agreement will not be affected.\n[CONTINUED ON THE NEXT PAGE]\n3\nThis Agreement constitutes the entire agreement among the parties and supersedes all prior agreements or understandings, if any, whether oral\nor written, with regard to the subject matter hereof. This Agreement is an integrated document and may not be modified or amended except in a\nwriting signed by the parties hereto or their successors in interest.\nI have signed and dated this Agreement below to indicate my acceptance of its provisions and to acknowledge that I have received a copy of\nthis Agreement.\nPhillip J. Gaines\nPresident, Yellow Transportation\nDate:\n4\nNovember 24, 2009\nPhil Gaines\nYRC Worldwide Inc.\n10990 Roe Avenue\nOverland Park, KS 66211\nDear Phil:\nI am very glad to confirm with you that the Board of Directors recently approved a new payout schedule for the consideration you are to receive for\nthe Retention Payment, Non-Competition, Non-Solicitation, Non-Disparagement and Confidentiality Agreement you signed earlier this year.\nInstead of receiving one times your base of $340,000.00 in July, 2010 you will now receive three equal payments of $113,333.00 in January, April\nand July of 2010. If you voluntarily resign from the company before July 1, 2010 you will be required to repay any of the monies paid to you under\nthis revised schedule. All other terms and conditions of the original agreement remain unchanged.\nThank you for your continued loyalty, commitment and extraordinary contributions to our company as we execute our comprehensive recovery plan.\nSincerely,\nJim Kissinger\nEVP – Human Resources\n5	EX-10.38 10 dex1038.htm NON-COMPETITION, NON-SOLICITATION, NON-DISPARAGEMENT &\nCONFIDENTIALITY AGREEMENT\nExhibit 10.38\nRETENTION PAYMENT, NON-COMPETITION, NON-SOLICITATION,\nNON-DISPARAGEMENT, AND CONFIDENTIALITY AGREEMENT\nPhillip J. Gaines:\nYRC Worldwide, Inc., a Delaware corporation (“YRCW?), has determined that you are important to the operation of the business of YRCW\nand its affiliates As such, YRCW desires to provide you with an incentive to remain employed with YRCW through and after July 1, 2010 (the\n“Vesting Date”). Accordingly, YRCW is pleased to offer you the opportunity to receive the Retention Payment (defined below) described in this\nRetention Payment, Non-Competition, Non-Solicitation, Non-Disparagement, and Confidentiality Agreement (this “Agreement”), subject to the\nterms and conditions set forth below.\n \nIn addition, in the course of your work, you will, or have, become aware of information of a confidential nature pertaining to the business of\nYRCW. YRCW maintains policies and procedures with respect to the use and the dissemination of confidential information. Your employment\ncreates a relationship of confidence and trust between you and YRCW with respect to any information applicable to the business of YRCW which\nmay be, or has been, made known to you by YRCW or learned by you in the course of your work. You understand that you have an obligation to\npreserve the confidentiality of such information and use it only for the purpose for which it was obtained.\nIn consideration for the Retention Payment and confidential information, the receipt and adequacy of which are hereby acknowledged, you\nunderstand and agree that your undertakings set forth below are material and essential terms to YRCW, and accordingly you expressly agree that:\n1.  Retention Payment. Subject to the terms and restrictions set forth in this paragraph, YRCW will pay you a retention payment in an amount\nequal to one times your base salary $340,000 as of the date of this Agreement (the “Retention Payment”); provided, you are still employed by\nYRCW on the Vesting Date. Unless otherwise provided within this Agreement, the Retention Payment will vest and become payable, less\napplicable tax withholding or other deductions, on the Vesting Date. If your employment with YRCW ends as a result of your resignation for\nany reason or your termination by YRCW with Cause before the Vesting Date, the Retention Payment will not vest and you will not be paid\nthe Retention Payment. If your employment is terminated by YRCW without Cause before the Vesting Date, the Retention Payment will vest\nand will be paid to you, less applicable tax withholding or other deductions, six months following your termination by YRCW without Cause;\nprovided, you have not breached any applicable provision of this Agreement, in which case the Retention Payment will not vest and YRCW\nwill withhold payment of the Retention Payment as damages for any such breach. For purposes of this Agreement, “Cause” shall mean any of\nthe following: (i) your conviction of a felony involving acts of dishonesty, fraud, or moral turpitude; (ii) your willful or repeated failure to\nperform your duties following 30 days notice of such failure and your failure to cure within such 30 days; (iii) willful misconduct material to\nyour employment; (iv) material breach of YRCW policies or rules of which you have been made aware following 30 days notice of such\nbreach and your failure to cure within such 30 days; (v) your material and demonstrable dishonesty related to your employment; or (vi) gross\nnegligence in the performance of your job duties. For purposes of the Agreement, your employment with YRCW will not be considered\nterminated without Cause unless the termination without Cause meets the requirements of a “separation from service” as defined in\nSection 409A.\nNon-Competition. You acknowledge that the agreements and covenants contained in this Section 2 of this Agreement are essential to protect\nthe value of the business and assets of YRCW and its affiliates and by your prior and continued employment with YRCW you have obtained,\nand will continue to obtain, valuable confidential information, knowledge, contacts, and experience, and there is a substantial probability that\nsuch confidential information, knowledge, contacts, and experience could be used to the substantial advantage of a competitor of YRCW or its\naffiliates to YRCW’s or its affiliates’ substantial detriment. Therefore, you agree that so long as you are employed by YRCW and for the\nperiod commencing as of the day of your termination with YRCW, whether with or without Cause and whether before or after receipt of the\nRetention Payment, and ending 6 months following termination of your employment with YRCW (the “Restricted Period”), you shall not, and\nshall cause your controlled affiliates not to, directly or indirectly (other than in your capacity as an employee of YRCW or any of its affiliates),\nown, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary,\nfinancial, or otherwise), or participate in the ownership, management, operation, or control of any business of providing products or services of\nthe same or similar type as the products or services sold or delivered (or, pursuant to an existing business plan, will be sold or delivered) to\ncustomers of YRCW or any of its affiliates (the “Business”) in any geographic region for which you had direct or indirect responsibility on\nbehalf of YRCW or any of its affiliates or in any geographic region for which you had confidential information of YRCW or any of its\naffiliates.\nNon-Solicitation. During the Restricted Period, you shall not and shall cause your controlled affiliates not to (other than in your capacity as an\nemployee of YRCW or its affiliates): (i) cause, solicit, induce, or encourage any employees, consultants, or contractors of YRCW or its\naffiliates to leave such employment or service, (ii) hire, employ, or otherwise engage any such individual, (iii) cause, induce, or encourage any\nactual or prospective client, customer, supplier, or licensor of YRCW or its affiliates (including any existing or former customers of YRCW or\nits affiliates) to terminate or modify any such actual or prospective business relationship with YRCW or its affiliates, or (iv) develop a business\nrelationship with any actual or prospective client, customer, supplier, or licensor to cause, induce, or encourage such individual to become a\nclient, customer, supplier, or licensor of any business in which you are engaged that is competitive with the Business. The restrictions relating\nto actual or prospective clients, customers, suppliers, or licensors in this paragraph apply only to (a) those actual or prospective clients,\ncustomers, suppliers, or licensors with whom you had contact on behalf of YRCW during the last 12 months of your employment with YRCW,\nor (b) any of YRCW’s actual or prospective clients, customers, suppliers, or licensors about whom you had any confidential information\nduring the last 12 months of your employment with YRCW. In no event shall it be a violation of this Section 3 to engage in solicitations\nincidental to general advertising or other general solicitation in the ordinary course not specifically targeted at such persons or to employ any\nperson not solicited in violation hereof.\nNon-Disparagement. You agree that, during your employment with YRCW or at any time thereafter, you shall not make any public statement\nthat is materially disparaging of the business of YRCW or its affiliates, or to the business reputation of any of the executive officers of YRCW\nor its affiliates or any of the employees of YRCW or its affiliates who are known to you to be employees of YRCW or its affiliates at the time\nof any such public statement. Your obligations under this Section 4 shall not apply to disclosures required by applicable law, regulation, or\norder of a court or governmental agency.\nConfidentiality. All information related to the business of YRCW or its affiliates that may be obtained by you from any source as a result of\nyour employment shall be considered as confidential. Materials contained in customers’ files should always be regarded as confidential. You\nshould always maintain appropriate administrative, technical, and physical safeguards over records in your possession to prevent unauthorized\naccess. Information regarding strategic or tactical business plans; undisclosed business, operational, or financial data; ideas, processes,\nmethods, techniques, systems, non-public information, models, devices, programs, computer software, or related information; documents\nrelating to regulatory matters or correspondence with governmental entities; undisclosed information concerning any past, pending, or\nthreatened legal dispute; pricing or cost data; the identity, reports, or analysis of business prospects; business transactions that are contemplated\nor planned; research data; personnel information or data; identities of users or purchasers of YRCW?’s or its affiliates’ products or services; or\nany business methods, operations, or results of YRCW or its affiliates may not be disclosed to competitors, to the public, or to any person, nor\ncan the preceding information be otherwise used except as your duties at YRCW may require or with the prior written approval of an\nauthorized senior officer of YRCW. This applies to the period of your employment and thereafter. Trade practices, procedures, software, or\nother strategies which you develop in the course of performing responsibilities or using YRCW equipment or facilities are the property of\nYRCW. Upon termination of your employment, you are required to deliver to YRCW all documents, recordings, and other tangible records\n(including tapes, discs, or other similar media) that contain or are derived from YRCW?s or its affiliates’ confidential information.\nReasonableness and Damages. You agree that the above obligations and covenants are reasonable in duration and scope, and agree that any\narbitration panel or court of competent jurisdiction may reform such obligations to the extent necessary to enforce them under applicable law.\nYou further agree and acknowledge that violation of these obligations and covenants would cause immeasurable and irreparable damage to\nYRCW and its affiliates. Accordingly, you agree that upon any actual or threatened violation of any of these obligations and covenants (i) you\nare required to return the Retention Payment to YRCW, and (ii) YRCW is entitled to withhold payment of the Retention Payment, to injunctive\nrelief in any court of competent jurisdiction, and to any other remedies it may have.\nThe provisions of this Agreement are in addition to the provisions in any written employment agreement between YRCW and you, and will\nnot affect your responsibilities or any other rights of YRCW under such agreements. This Agreement is not a contract of continuing employment. Employment is for no fixed term, and either you or YRCW may decide to terminate the employment relationship at any time for any reason. This Agreement shall be governed by Kansas law, without regard to its choice of law principles, and will be binding on you, your heirs,\nexecutors, assigns, and administrators, and shall inure to the benefit of YRCW, its successors and assigns, and shall survive the termination of your employment with YRCW, regardless of the manner of such termination. Each provision of this Agreement will be interpreted on its own. If any provision is held to be unenforceable as written, it will be enforced to\nthe extent reasonable under the circumstances. In any case, the other provisions of this Agreement will not be affected. [CONTINUED ON THE NEXT PAGE]\n3\nThis Agreement constitutes the entire agreement among the parties and supersedes all prior agreements or understandings, if any, whether oral\nor written, with regard to the subject matter hereof. This Agreement is an integrated document and may not be modified or amended except in a\nwriting signed by the parties hereto or their successors in interest.\nI have signed and dated this Agreement below to indicate my acceptance of its provisions and to acknowledge that I have received a copy of\nthis Agreement.\nPhillip J. Gaines\nPresident, Yellow Transportation\nDate:\nNovember 24, 2009\nPhil Gaines\nYRC Worldwide Inc.\n10990 Roe Avenue\nOverland Park, KS 66211\nDear Phil:\nI am very glad to confirm with you that the Board of Directors recently approved a new payout schedule for the consideration you are to receive for\nthe Retention Payment, Non-Competition, Non-Solicitation, Non-Disparagement and Confidentiality Agreement you signed earlier this year.\nInstead of receiving one times your base of $340,000.00 in July, 2010 you will now receive three equal payments of $113,333.00 in January, April\nand July of 2010. If you voluntarily resign from the company before July 1, 2010 you will be required to repay any of the monies paid to you under\nthis revised schedule. All other terms and conditions of the original agreement remain unchanged.\nThank you for your continued loyalty, commitment and extraordinary contributions to our company as we execute our comprehensive recovery plan.\nSincerely,\nJim Kissinger\nEVP — Human Resources	EX-10.38 10 lex1038.htm NON-COMPETITION, NON-SOLICITATION, NON-DISPARAGEMENT &\nCONFIDENTIALITY AGREEMENT\nExhibit 10.38\nRETENTION PAYMENT, NON-COMPETITION, NON-SOLICITATION,\nNON-DISPARAGEMENT, AND CONFIDENTIALITY AGREEMENT\nPhillip J. Gaines:\nYRC Worldwide, Inc., a Delaware corporation ("YRCW"), has determined that you are important to the operation of the business of YRCW\nand its affiliates As such, YRCW desires to provide you with an incentive to remain employed with YRCW through and after July 1, 2010 (the\n"Vesting Date"). Accordingly, YRCW is pleased to offer you the opportunity to receive the Retention Payment (defined below) described in this\nRetention Payment, Non-Competition, Non-Solicitation, Non-Disparagement, and Confidentiality Agreement (this "Agreement"), subject to the\nterms and conditions set forth below.\nIn addition, in the course of your work, you will, or have, become aware of information of a confidential nature pertaining to the business of\nYRCW. YRCW maintains policies and procedures with respect to the use and the dissemination of confidential information. Your employment\ncreates a relationship of confidence and trust between you and YRCW with respect to any information applicable to the business of YRCW which\nmay be, or has been, made known to you by YRCW or learned by you in the course of your work. You understand that you have an obligation to\npreserve the confidentiality of such information and use it only for the purpose for which it was obtained.\nIn consideration for the Retention Payment and confidential information, the receipt and adequacy of which are hereby acknowledged, you\nunderstand and agree that your undertakings set forth below are material and essential terms to YRCW, and accordingly you expressly agree that:\n1.\nRetention Payment. Subject to the terms and restrictions set forth in this paragraph, YRCW will pay you a retention payment in an amount\nequal to one times your base salary $340,000 as of the date of this Agreement (the "Retention Payment"); provided, you are still employed by\nYRCW on the Vesting Date. Unless otherwise provided within this Agreement, the Retention Payment will vest and become payable, less\napplicable tax withholding or other deductions, on the Vesting Date. If your employment with YRCW ends as a result of your resignation for\nany reason or your termination by YRCW with Cause before the Vesting Date, the Retention Payment will not vest and you will not be paid\nthe Retention Payment. If your employment is terminated by YRCW without Cause before the Vesting Date, the Retention Payment will vest\nand will be paid to you, less applicable tax withholding or other deductions, six months following your termination by YRCW without Cause;\nprovided, you have not breached any applicable provision of this Agreement, in which case the Retention Payment will not vest and YRCW\nwill withhold payment of the Retention Payment as damages for any such breach. For purposes of this Agreement, "Cause" shall mean any of\nthe following: (i) your conviction of a felony involving acts of dishonesty, fraud, or moral turpitude; (ii) your willful or repeated failure to\nperform your duties following 30 days notice of such failure and your failure to cure within such 30 days; (iii) willful misconduct material to\nyour employment; (iv) material breach of YRCW policies or rules of which you have been made aware following 30 days notice of such\nbreach and your failure to cure within such 30 days; (v) your material and demonstrable dishonesty related to your employment; or (vi) gross\nnegligence in the performance of your job duties. For purposes of the Agreement, your employment with YRCW will not be considered\nterminated without Cause unless the termination without Cause meets the requirements of a "separation from service" as defined in\nSection 409A.\n1\n2.\nNon-Competition. You acknowledge that the agreements and covenants contained in this Section 2 of this Agreement are essential to protect\nthe value of the business and assets of YRCW and its affiliates and by your prior and continued employment with YRCW you have obtained,\nand will continue to obtain, valuable confidential information, knowledge, contacts, and experience, and there is a substantial probability that\nsuch confidential information, knowledge, contacts, and experience could be used to the substantial advantage of a competitor of YRCW or its\naffiliates to YRCW's or its affiliates' substantial detriment. Therefore, you agree that so long as you are employed by YRCW and for the\nperiod commencing as of the day of your termination with YRCW, whether with or without Cause and whether before or after receipt of the\nRetention Payment, and ending 6 months following termination of your employment with YRCW (the "Restricted Period"), you shall not, and\nshall cause your controlled affiliates not to, directly or indirectly (other than in your capacity as an employee of YRCW or any of its affiliates),\nown, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary,\nfinancial, or otherwise), or participate in the ownership, management, operation, or control of any business of providing products or services of\nthe same or similar type as the products or services sold or delivered (or, pursuant to an existing business plan, will be sold or delivered) to\ncustomers of YRCW or any of its affiliates (the "Business") in any geographic region for which you had direct or indirect responsibility on\nbehalf of YRCW or any of its affiliates or in any geographic region for which you had confidential information of YRCW or any of\nits\naffiliates.\n3.\nNon-Solicitation. During the Restricted Period, you shall not and shall cause your controlled affiliates not to (other than in your capacity as an\nemployee of YRCW or its affiliates) (i) cause, solicit, induce, or encourage any employees, consultants, or contractors of\nYRCW\nor\nits\naffiliates to leave such employment or service, (ii) hire, employ, or otherwise engage any such individual, (iii) cause, induce, or encourage any\nactual or prospective client, customer, supplier, or licensor of YRCW or its affiliates (including any existing or former customers of YRCW or\nits affiliates) to terminate or modify any such actual or prospective business relationship with YRCW or its affiliates, or (iv) develop a business\nrelationship with any actual or prospective client, customer, supplier, or licensor to cause, induce, or encourage such individual to become a\nclient, customer, supplier, or licensor of any business in which you are engaged that is competitive with the Business. The restrictions relating\nto actual or prospective clients, customers, suppliers, or licensors in this paragraph apply only to (a) those actual or prospective clients,\ncustomers, suppliers, or licensors with whom you had contact on behalf of YRCW during the last 12 months of your employment with YRCW,\nor (b) any of YRCW's actual or prospective clients, customers, suppliers, or licensors about whom you had any confidential information\nduring the last 12 months of your employment with YRCW. In no event shall it be a violation of this Section 3 to engage in solicitations\nincidental to general advertising or other general solicitation in the ordinary course not specifically targeted at such persons or to employ any\nperson not solicited in violation hereof.\n4.\nNon-Disparagement. You agree that, during your employment with YRCW or at any time thereafter, you shall not make any public statement\nthat is materially disparaging of the business of YRCW or its affiliates, or to the business reputation of any of the executive officers of YRCW\nor\nits affiliates or any of the employees of YRCW or its affiliates who are known to you to be employees of YRCW or its affiliates at the time\nof any such public statement. Your obligations under this Section 4 shall not apply to disclosures required by applicable law, regulation, or\norder of a court or governmental agency.\n2\n5. Confidentiality.. All information related to the business of YRCW or its affiliates that may be obtained by you from any source as a result of\nyour employment shall be considered as confidential. Materials contained in customers' files should always be regarded as confidential. You\nshould always maintain appropriate administrative, technical, and physical safeguards over records in your possession to prevent unauthorized\naccess. Information regarding strategic or tactical business plans; undisclosed business, operational, or financial data; ideas, processes,\nmethods, techniques, systems, non-public information, models, devices, programs, computer software, or related information; documents\nrelating to regulatory matters or correspondence with governmental entities; undisclosed information concerning any past, pending, or\nthreatened legal dispute; pricing or cost data; the identity, reports, or analysis of business prospects; business transactions that are contemplated\nor planned; research data; personnel information or data; identities of users or purchasers of YRCW's or its affiliates' products or services; or\nany business methods, operations, or results of YRCW or its affiliates may not be disclosed to competitors, to the public, or to any person, nor\ncan the preceding information be otherwise used except as your duties at YRCW may require or with the prior written approval of an\nauthorized senior officer of YRCW. This applies to the period of your employment and thereafter. Trade practices, procedures, software, or\nother strategies which you develop in the course of performing responsibilities or using YRCW equipment or facilities are the property of\nYRCW. Upon termination of your employment, you are required to deliver to YRCW all documents, recordings, and other tangible records\n(including tapes, discs, or other similar media) that contain or are derived from YRCW's or its affiliates' confidential information.\n6.\nReasonableness and Damages. You agree that the above obligations and covenants are reasonable in duration and scope, and agree that any\narbitration panel or court of competent jurisdiction may reform such obligations to the extent necessary to enforce them under applicable\nlaw.\nYou further agree and acknowledge that violation of these obligations and covenants would cause immeasurable and irreparable damage to\nYRCW and its affiliates. Accordingly, you agree that upon any actual or threatened violation of any of these obligations and covenants (i) you\nare required to return the Retention Payment to YRCW, and (ii) YRCW is entitled to withhold payment of the Retention Payment, to injunctive\nrelief in any court of competent jurisdiction, and to any other remedies it may have.\nThe provisions of this Agreement are in addition to the provisions in any written employment agreement between YRCW and you, and will\nnot affect your responsibilities or any other rights of YRCW under such agreements. This Agreement is not a contract of continuing employment.\nEmployment is for no fixed term, and either you or YRCW may decide to terminate the employment relationship at any time for any reason.\nThis Agreement shall be governed by Kansas law, without regard to its choice of law principles, and will be binding on you, your heirs,\nexecutors, assigns, and administrators, and shall inure to the benefit of YRCW, its successors and assigns, and shall survive the termination of your\nemployment with YRCW, regardless of the manner of such termination.\nEach provision of this Agreement will be interpreted on its own. If any provision is held to be unenforceable as written, it will be enforced to\nthe extent reasonable under the circumstances. In any case, the other provisions of this Agreement will not be affected.\n[CONTINUED ON THE NEXT PAGE]\n3\nThis Agreement constitutes the entire agreement among the parties and supersedes all prior agreements or understandings, if any, whether oral\nor written, with regard to the subject matter hereof. This Agreement is an integrated document and may not be modified or amended except in a\nwriting signed by the parties hereto or their successors in interest.\nI have signed and dated this Agreement below to indicate my acceptance of its provisions and to acknowledge that I have received a copy of\nthis Agreement.\nPhillip J. Gaines\nPresident, Yellow Transportation\nDate:\n4\nNovember 24, 2009\nPhil Gaines\nYRC Worldwide Inc.\n10990 Roe Avenue\nOverland Park, KS 66211\nDear Phil:\nI am very glad to confirm with you that the Board of Directors recently approved a new payout schedule for the consideration you are to receive for\nthe Retention Payment, Non-Competition, Non-Solicitation, Non-Disparagement and Confidentiality Agreement you signed earlier this year.\nInstead of receiving one times your base of $340,000.00 in July, 2010 you will now receive three equal payments of $113,333.00 in January, April\nand July of 2010. If you voluntarily resign from the company before July 1, 2010 you will be required to repay any of the monies paid to you under\nthis revised schedule. All other terms and conditions of the original agreement remain unchanged.\nThank you for your continued loyalty, commitment and extraordinary contributions to our company as we execute our comprehensive recovery plan.\nSincerely,\nJim Kissinger\nEVP - Human Resources\n5	EX-10.38 10 dex1038.htm NON-COMPETITION, NON-SOLICITATION, NON-DISPARAGEMENT &\nCONFIDENTIALITY AGREEMENT\nExhibit 10.38\nRETENTION PAYMENT, NON-COMPETITION, NON-SOLICITATION,\nNON-DISPARAGEMENT, AND CONFIDENTIALITY AGREEMENT\nPhillip J. Gaines:\nYRC Worldwide, Inc., a Delaware corporation (“YRCW”), has determined that you are important to the operation of the business of YRCW\nand its affiliates As such, YRCW desires to provide you with an incentive to remain employed with YRCW through and after July 1, 2010 (the\n“Vesting Date”). Accordingly, YRCW is pleased to offer you the opportunity to receive the Retention Payment (defined below) described in this\nRetention Payment, Non-Competition, Non-Solicitation, Non-Disparagement, and Confidentiality Agreement (this “Agreement”), subject to the\nterms and conditions set forth below.\nIn addition, in the course of your work, you will, or have, become aware of information of a confidential nature pertaining to the business of\nYRCW. YRCW maintains policies and procedures with respect to the use and the dissemination of confidential information. Your employment\ncreates a relationship of confidence and trust between you and YRCW with respect to any information applicable to the business of YRCW which\nmay be, or has been, made known to you by YRCW or learned by you in the course of your work. You understand that you have an obligation to\npreserve the confidentiality of such information and use it only for the purpose for which it was obtained.\nIn consideration for the Retention Payment and confidential information, the receipt and adequacy of which are hereby acknowledged, you\nunderstand and agree that your undertakings set forth below are material and essential terms to YRCW, and accordingly you expressly agree that:\n1. Retention Payment. Subject to the terms and restrictions set forth in this paragraph, YRCW will pay you a retention payment in an amount\nequal to one times your base salary $340,000 as of the date of this Agreement (the “Retention Payment”); provided, you are still employed by\nYRCW on the Vesting Date. Unless otherwise provided within this Agreement, the Retention Payment will vest and become payable, less\napplicable tax withholding or other deductions, on the Vesting Date. If your employment with YRCW ends as a result of your resignation for\nany reason or your termination by YRCW with Cause before the Vesting Date, the Retention Payment will not vest and you will not be paid\nthe Retention Payment. If your employment is terminated by YRCW without Cause before the Vesting Date, the Retention Payment will vest\nand will be paid to you, less applicable tax withholding or other deductions, six months following your termination by YRCW without Cause;\nprovided, you have not breached any applicable provision of this Agreement, in which case the Retention Payment will not vest and YRCW\nwill withhold payment of the Retention Payment as damages for any such breach. For purposes of this Agreement, “Cause” shall mean any of\nthe following: (i) your conviction of a felony involving acts of dishonesty, fraud, or moral turpitude; (ii) your willful or repeated failure to\nperform your duties following 30 days notice of such failure and your failure to cure within such 30 days; (iii) willful misconduct material to\nyour employment; (iv) material breach of YRCW policies or rules of which you have been made aware following 30 days notice of such\nbreach and your failure to cure within such 30 days; (v) your material and demonstrable dishonesty related to your employment; or (vi) gross\nnegligence in the performance of your job duties. For purposes of the Agreement, your employment with YRCW will not be considered\nterminated without Cause unless the termination without Cause meets the requirements of a “separation from service” as defined in\nSection 409A.\n1\n2. Non-Competition. You acknowledge that the agreements and covenants contained in this Section 2 of this Agreement are essential to protect\nthe value of the business and assets of YRCW and its affiliates and by your prior and continued employment with YRCW you have obtained,\nand will continue to obtain, valuable confidential information, knowledge, contacts, and experience, and there is a substantial probability that\nsuch confidential information, knowledge, contacts, and experience could be used to the substantial advantage of a competitor of YRCW or its\naffiliates to YRCW’s or its affiliates’ substantial detriment. Therefore, you agree that so long as you are employed by YRCW and for the\nperiod commencing as of the day of your termination with YRCW, whether with or without Cause and whether before or after receipt of the\nRetention Payment, and ending 6 months following termination of your employment with YRCW (the “Restricted Period”), you shall not, and\nshall cause your controlled affiliates not to, directly or indirectly (other than in your capacity as an employee of YRCW or any of its affiliates),\nown, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in (proprietary,\nfinancial, or otherwise), or participate in the ownership, management, operation, or control of any business of providing products or services of\nthe same or similar type as the products or services sold or delivered (or, pursuant to an existing business plan, will be sold or delivered) to\ncustomers of YRCW or any of its affiliates (the “Business”) in any geographic region for which you had direct or indirect responsibility on\nbehalf of YRCW or any of its affiliates or in any geographic region for which you had confidential information of YRCW or any of its\naffiliates.\n3. Non-Solicitation. During the Restricted Period, you shall not and shall cause your controlled affiliates not to (other than in your capacity as an\nemployee of YRCW or its affiliates): (i) cause, solicit, induce, or encourage any employees, consultants, or contractors of YRCW or its\naffiliates to leave such employment or service, (ii) hire, employ, or otherwise engage any such individual, (iii) cause, induce, or encourage any\nactual or prospective client, customer, supplier, or licensor of YRCW or its affiliates (including any existing or former customers of YRCW or\nits affiliates) to terminate or modify any such actual or prospective business relationship with YRCW or its affiliates, or (iv) develop a business\nrelationship with any actual or prospective client, customer, supplier, or licensor to cause, induce, or encourage such individual to become a\nclient, customer, supplier, or licensor of any business in which you are engaged that is competitive with the Business. The restrictions relating\nto actual or prospective clients, customers, suppliers, or licensors in this paragraph apply only to (a) those actual or prospective clients,\ncustomers, suppliers, or licensors with whom you had contact on behalf of YRCW during the last 12 months of your employment with YRCW,\nor (b) any of YRCW’s actual or prospective clients, customers, suppliers, or licensors about whom you had any confidential information\nduring the last 12 months of your employment with YRCW. In no event shall it be a violation of this Section 3 to engage in solicitations\nincidental to general advertising or other general solicitation in the ordinary course not specifically targeted at such persons or to employ any\nperson not solicited in violation hereof.\n4. Non-Disparagement. You agree that, during your employment with YRCW or at any time thereafter, you shall not make any public statement\nthat is materially disparaging of the business of YRCW or its affiliates, or to the business reputation of any of the executive officers of YRCW\nor its affiliates or any of the employees of YRCW or its affiliates who are known to you to be employees of YRCW or its affiliates at the time\nof any such public statement. Your obligations under this Section 4 shall not apply to disclosures required by applicable law, regulation, or\norder of a court or governmental agency.\n2\n5. Confidentiality. All information related to the business of YRCW or its affiliates that may be obtained by you from any source as a result of\nyour employment shall be considered as confidential. Materials contained in customers’ files should always be regarded as confidential. You\nshould always maintain appropriate administrative, technical, and physical safeguards over records in your possession to prevent unauthorized\naccess. Information regarding strategic or tactical business plans; undisclosed business, operational, or financial data; ideas, processes,\nmethods, techniques, systems, non-public information, models, devices, programs, computer software, or related information; documents\nrelating to regulatory matters or correspondence with governmental entities; undisclosed information concerning any past, pending, or\nthreatened legal dispute; pricing or cost data; the identity, reports, or analysis of business prospects; business transactions that are contemplated\nor planned; research data; personnel information or data; identities of users or purchasers of YRCW’s or its affiliates’ products or services; or\nany business methods, operations, or results of YRCW or its affiliates may not be disclosed to competitors, to the public, or to any person, nor\ncan the preceding information be otherwise used except as your duties at YRCW may require or with the prior written approval of an\nauthorized senior officer of YRCW. This applies to the period of your employment and thereafter. Trade practices, procedures, software, or\nother strategies which you develop in the course of performing responsibilities or using YRCW equipment or facilities are the property of\nYRCW. Upon termination of your employment, you are required to deliver to YRCW all documents, recordings, and other tangible records\n(including tapes, discs, or other similar media) that contain or are derived from YRCW’s or its affiliates’ confidential information.\n6. Reasonableness and Damages. You agree that the above obligations and covenants are reasonable in duration and scope, and agree that any\narbitration panel or court of competent jurisdiction may reform such obligations to the extent necessary to enforce them under applicable law.\nYou further agree and acknowledge that violation of these obligations and covenants would cause immeasurable and irreparable damage to\nYRCW and its affiliates. Accordingly, you agree that upon any actual or threatened violation of any of these obligations and covenants (i) you\nare required to return the Retention Payment to YRCW, and (ii) YRCW is entitled to withhold payment of the Retention Payment, to injunctive\nrelief in any court of competent jurisdiction, and to any other remedies it may have.\nThe provisions of this Agreement are in addition to the provisions in any written employment agreement between YRCW and you, and will\nnot affect your responsibilities or any other rights of YRCW under such agreements. This Agreement is not a contract of continuing employment.\nEmployment is for no fixed term, and either you or YRCW may decide to terminate the employment relationship at any time for any reason.\nThis Agreement shall be governed by Kansas law, without regard to its choice of law principles, and will be binding on you, your heirs,\nexecutors, assigns, and administrators, and shall inure to the benefit of YRCW, its successors and assigns, and shall survive the termination of your\nemployment with YRCW, regardless of the manner of such termination.\nEach provision of this Agreement will be interpreted on its own. If any provision is held to be unenforceable as written, it will be enforced to\nthe extent reasonable under the circumstances. In any case, the other provisions of this Agreement will not be affected.\n[CONTINUED ON THE NEXT PAGE]\n3\nThis Agreement constitutes the entire agreement among the parties and supersedes all prior agreements or understandings, if any, whether oral\nor written, with regard to the subject matter hereof. This Agreement is an integrated document and may not be modified or amended except in a\nwriting signed by the parties hereto or their successors in interest.\nI have signed and dated this Agreement below to indicate my acceptance of its provisions and to acknowledge that I have received a copy of\nthis Agreement.\nPhillip J. Gaines\nPresident, Yellow Transportation\nDate:\n4\nNovember 24, 2009\nPhil Gaines\nYRC Worldwide Inc.\n10990 Roe Avenue\nOverland Park, KS 66211\nDear Phil:\nI am very glad to confirm with you that the Board of Directors recently approved a new payout schedule for the consideration you are to receive for\nthe Retention Payment, Non-Competition, Non-Solicitation, Non-Disparagement and Confidentiality Agreement you signed earlier this year.\nInstead of receiving one times your base of $340,000.00 in July, 2010 you will now receive three equal payments of $113,333.00 in January, April\nand July of 2010. If you voluntarily resign from the company before July 1, 2010 you will be required to repay any of the monies paid to you under\nthis revised schedule. All other terms and conditions of the original agreement remain unchanged.\nThank you for your continued loyalty, commitment and extraordinary contributions to our company as we execute our comprehensive recovery plan.\nSincerely,\nJim Kissinger\nEVP – Human Resources\n5
+a7f87c6d89e0c31214231c0f89a10476.pdf	effective_date jurisdiction party term	EX-10 .21 4 nke-5312014xexhibit1021.htm COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGMT\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\nJeanne Jackson ("EMPLOYEE")\nand\nNIKE, Inc., and its parent, divisions,\nsubsidiaries, affiliates, successors and assigns. ("NIKE"):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon initial employment with NIKE and is a condition\nof such employment. Employee acknowledges that he/she was informed in a written job offer at least two weeks before starting work that this\nCovenant Not to Compete and Non-Disclosure Agreement is required and is a condition of employment.\nB. Over the course of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to\ndevelop confidential information peculiar to NIKE’s business and not generally known to the public as defined below (“Protected Information”).\nIt is anticipated that EMPLOYEE will continue to be exposed to Protected Information of greater sensitivity as EMPLOYEE advances in the\ncompany and this Agreement will remain in effect in the event EMPLOYEE advances and until EMPLOYEE leaves the company or it is\nsuperseded by a new written agreement executed by the parties.\nC. The nature of NIKE's business is highly competitive and disclosure of any Protected Information would result in severe damage to\nNIKE and be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected Information of NIKE can be used to NIKE's\ndetriment anywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete.\n(a) Competition Restriction. During EMPLOYEE’s employment by NIKE, under the terms of any employment contract or\notherwise, and for 1 year thereafter, (the “Restriction Period”), EMPLOYEE will not directly or indirectly, own, manage, control, or participate\nin the ownership, management or control of, or be employed by, consult for, or be connected in any manner with, any business engaged\nanywhere in the world in the athletic footwear, athletic apparel or sports equipment, sports electronics/technology and sports accessories\nbusiness, or any other business which directly competes with NIKE or any of its parent, subsidiaries or affiliated corporations (a “Competitor”).\nThis provision is subject to NIKE's option to waive all or any portion of the Restriction Period as more specifically provided below.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall\nautomatically toll from the date of the first breach, and all subsequent breaches, until the resolution of the breach through private settlement,\njudicial or other action, including all appeals. The Restriction Period shall continue upon the effective date of any such settlement, judicial or\nother resolution. NIKE shall not be obligated to pay EMPLOYEE the additional compensation described in paragraph 1(d) below during any\nperiod of time in which this Agreement is tolled due to EMPLOYEE’s breach. In the event EMPLOYEE receives such additional compensation\nafter any such breach, EMPLOYEE must immediately reimburse NIKE in the amount of all such compensation upon the receipt of a written\nrequest by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the Restriction\nPeriod or to limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a portion of\nthe Restriction Period is waived or the definition of Competitor is limited, NIKE shall not be obligated to pay EMPLOYEE for any period of\ntime as to which the covenant not to compete has been waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above, should NIKE\nterminate EMPLOYEE’s employment without cause and elect to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a\nmonthly payment equal to one hundred percent (100%) of EMPLOYEE's last monthly base salary while the Restriction Period is in effect.\nExcept where prohibited by law, if Nike terminates EMPLOYEE for “cause,” no additional consideration will be owed to EMPLOYEE under\nthis Agreement and the covenant not to compete will remain enforceable. For purposes of this Agreement only, “cause” shall mean: i)\ninsubordination, (ii) acts of dishonesty, (iii) involvement in illegal activities where such involvement in illegal activities violates Nike policies,\nplaces Nike at risk or has or could damage Nike’s reputation in the community or any of its related or subsidiary companies, (iv) violation of\nNike’s anti-harassment or anti-discrimination policy, and (v) gross neglect of EMPLOYEE’S duties or willful misconduct that, in either case,\nresults in\neconomic harm to Nike or harm to Nike’s reputation. Nothing in this paragraph or Agreement alters the employment-at-will relationship\nbetween Nike and EMPLOYEE.\nIf EMPLOYEE voluntarily terminates employment and NIKE elects to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a\nmonthly severance payment equal to fifty percent (50%) of EMPLOYEE’s last monthly base salary while the Restriction Period is in effect. The\nfirst payment to EMPLOYEE of additional consideration shall follow on the next applicable pay period after the election to enforce the non-\ncompetition agreement, payable in accordance with NIKE’s payroll practices.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE’s\nnew employer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period,\nwherever located and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure Agreement.\n(a) Protected Information Defined. “Protected Information” shall mean all proprietary information, in whatever form and format, of\nNIKE and all information provided to NIKE by third parties which NIKE is obligated to keep confidential. EMPLOYEE agrees that any and all\ninformation to which EMPLOYEE has access concerning NIKE projects and internal NIKE information is Protected Information, whether in\nverbal form, machine-readable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting the\nforegoing, Protected Information includes trade secrets and competitively sensitive business or professional information (regardless of whether\nsuch information constitutes a trade secret) relating to NIKE’s research and development activities, its intellectual property and the filing or\npendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor lists, contract\nfactory lists, pricing information, manufacturing plans, business and marketing plans or strategy, product development plants, product launch\nplans, financial information, sales information, methods of operation, manufacturing processes and methods, products, and personnel\ninformation.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information that is or\nbecomes part of the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, EMPLOYEE shall be permitted to\nretain as part of his or her personal portfolio copies of the EMPLOYEE’S original artwork and designs, provided the EMPLOYEE presents those\npersonal portfolio copies to his or her supervisor for review and approval and provided the artwork or designs have become part of the public\ndomain. In any dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be by\nclear and convincing evidence.\n(c) Employee’s Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter,\nEMPLOYEE will hold in confidence and protect all Protected Information and will not, at any time, directly or indirectly, use any Protected\nInformation for any purpose outside the scope of EMPLOYEE's employment with NIKE or disclose any Protected Information to any third\nperson or organization without the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE will not ever copy,\ntransmit, reproduce, summarize, quote, publish or make any commercial or other use whatsoever of any Protected Information without the prior\nwritten consent of NIKE. EMPLOYEE will also take reasonable security precautions and such other actions as may be necessary to insure that\nthere is no use or disclosure, intentional or inadvertent, of Protected Information in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at anytime, and in any event, upon termination of employment,\nEMPLOYEE shall immediately return to NIKE all Protected Information in whatever form, including tapes, notebooks, drawings, digital files, or\nother media containing Protected Information, and all copies thereof, then in EMPLOYEE's possession or under EMPLOYEE’s control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if\nEMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person employed or not\nemployed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such\nincident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information. NIKE\nshall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by operation of any\npayment under Paragraph 1(d) of this Agreement.\n6. Non-Solicitation/Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE\nwill not directly or indirectly, solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or\nbusiness organization, any NIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not\nsuch employment is pursuant to a written agreement or is at will or any independent contractor working for Nike.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement, NIKE shall be entitled\nto an accounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly\nhas realized and/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid\nby NIKE pursuant to Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or\nremedies to which NIKE may be entitled at law or in equity.\n8. General Provisions.\n(a) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE’s employment, regardless of the\nreason for termination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will be effective\nunless executed in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts specifically\nreferred to therein.\n(c) Severability. Each provision herein will be treated as a separate and independent clause and unenforceability of any one\nclause will in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable\nor invalid by a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that\njurisdiction.\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE's employment hereunder, shall be construed according\nto the laws of the State of Oregon. EMPLOYEE further hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and\nvenue for any action or proceeding arising out of or relating to this Agreement shall lie in the state and federal courts located in Oregon.\nEMPLOYEE NIKE, Inc.\n/s/ Jeanne Jackson By / s/ Mark Parker\nName: Mark Parker\nDATE March 4, 2009\nTitle: President/CEO Nike, Inc.	EX-10.21 4 nke-5312014xexhibit1021.htm COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGMT\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\nJeanne Jackson ("EMPLOYEE")\nand\nNIKE, Inc., and its parent, divisions,\nsubsidiaries, affiliates, successors and assigns. ("NIKE"):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon initial employment with NIKE and is a condition\nof such employment. Employee acknowledges that he/she was informed in a written job offer at least two weeks before starting work that this\nCovenant Not to Compete and Non-Disclosure Agreement is required and is a condition of employment.\nB. Over the course of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to\ndevelop confidential information peculiar to NIKE’s business and not generally known to the public as defined below (“Protected Information”).\nIt is anticipated that EMPLOYEE will continue to be exposed to Protected Information of greater sensitivity as EMPLOYEE advances in the\ncompany and this Agreement will remain in effect in the event EMPLOYEE advances and until EMPLOYEE leaves the company or it is\nsuperseded by a new written agreement executed by the parties.\nC. The nature of NIKE's business is highly competitive and disclosure of any Protected Information would result in severe damage to\nNIKE and be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected Information of NIKE can be used to NIKE's\ndetriment anywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete.\n(a) Competition Restriction. During EMPLOYEE’s employment by NIKE, under the terms of any employment contract or\notherwise, and for 1 year thereafter, (the “Restriction Period”), EMPLOYEE will not directly or indirectly, own, manage, control, or participate\nin the ownership, management or control of, or be employed by, consult for, or be connected in any manner with, any business engaged\nanywhere in the world in the athletic footwear, athletic apparel or sports equipment, sports electronics/technology and sports accessories\nbusiness, or any other business which directly competes with NIKE or any of its parent, subsidiaries or affiliated corporations (a “Competitor”).\nThis provision is subject to NIKE's option to waive all or any portion of the Restriction Period as more specifically provided below.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall\nautomatically toll from the date of the first breach, and all subsequent breaches, until the resolution of the breach through private settlement,\njudicial or other action, including all appeals. The Restriction Period shall continue upon the effective date of any such settlement, judicial or\nother resolution. NIKE shall not be obligated to pay EMPLOYEE the additional compensation described in paragraph 1(d) below during any\nperiod of time in which this Agreement is tolled due to EMPLOYEE’s breach. In the event EMPLOYEE receives such additional compensation\nafter any such breach, EMPLOYEE must immediately reimburse NIKE in the amount of all such compensation upon the receipt of a written\nrequest by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the Restriction\nPeriod or to limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a portion of\nthe Restriction Period is waived or the definition of Competitor is limited, NIKE shall not be obligated to pay EMPLOYEE for any period of\ntime as to which the covenant not to compete has been waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above, should NIKE\nterminate EMPLOYEE’s employment without cause and elect to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a\nmonthly payment equal to one hundred percent (100%) of EMPLOYEE's last monthly base salary while the Restriction Period is in effect.\nExcept where prohibited by law, if Nike terminates EMPLOYEE for “cause,” no additional consideration will be owed to EMPLOYEE under\nthis Agreement and the covenant not to compete will remain enforceable. For purposes of this Agreement only, “cause” shall mean: i)\ninsubordination, (ii) acts of dishonesty, (iii) involvement in illegal activities where such involvement in illegal activities violates Nike policies,\nplaces Nike at risk or has or could damage Nike’s reputation in the community or any of its related or subsidiary companies, (iv) violation of\nNike’s anti-harassment or anti-discrimination policy, and (v) gross neglect of EMPLOYEE’S duties or willful misconduct that, in either case,\nresults in\neconomic harm to Nike or harm to Nike’s reputation. Nothing in this paragraph or Agreement alters the employment-at-will relationship\nbetween Nike and EMPLOYEE.\nIf EMPLOYEE voluntarily terminates employment and NIKE elects to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a\nmonthly severance payment equal to fifty percent (50%) of EMPLOYEE’s last monthly base salary while the Restriction Period is in effect. The\nfirst payment to EMPLOYEE of additional consideration shall follow on the next applicable pay period after the election to enforce the non-\ncompetition agreement, payable in accordance with NIKE’s payroll practices.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE’s\nnew employer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period,\nwherever located and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure Agreement.\n(a) Protected Information Defined. “Protected Information” shall mean all proprietary information, in whatever form and format, of\nNIKE and all information provided to NIKE by third parties which NIKE is obligated to keep confidential. EMPLOYEE agrees that any and all\ninformation to which EMPLOYEE has access concerning NIKE projects and internal NIKE information is Protected Information, whether in\nverbal form, machine-readable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting the\nforegoing, Protected Information includes trade secrets and competitively sensitive business or professional information (regardless of whether\nsuch information constitutes a trade secret) relating to NIKE’s research and development activities, its intellectual property and the filing or\npendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor lists, contract\nfactory lists, pricing information, manufacturing plans, business and marketing plans or strategy, product development plants, product launch\nplans, financial information, sales information, methods of operation, manufacturing processes and methods, products, and personnel\ninformation.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information that is or\nbecomes part of the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, EMPLOYEE shall be permitted to\nretain as part of his or her personal portfolio copies of the EMPLOYEE’S original artwork and designs, provided the EMPLOYEE presents those\npersonal portfolio copies to his or her supervisor for review and approval and provided the artwork or designs have become part of the public\ndomain. In any dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be by\nclear and convincing evidence.\n(c) Employee’s Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter,\nEMPLOYEE will hold in confidence and protect all Protected Information and will not, at any time, directly or indirectly, use any Protected\nInformation for any purpose outside the scope of EMPLOYEE's employment with NIKE or disclose any Protected Information to any third\nperson or organization without the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE will not ever copy,\ntransmit, reproduce, summarize, quote, publish or make any commercial or other use whatsoever of any Protected Information without the prior\nwritten consent of NIKE. EMPLOYEE will also take reasonable security precautions and such other actions as may be necessary to insure that\nthere is no use or disclosure, intentional or inadvertent, of Protected Information in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at anytime, and in any event, upon termination of employment,\nEMPLOYEE shall immediately return to NIKE all Protected Information in whatever form, including tapes, notebooks, drawings, digital files, or\nother media containing Protected Information, and all copies thereof, then in EMPLOYEE's possession or under EMPLOYEE’s control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if\nEMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person employed or not\nemployed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such\nincident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information. NIKE\nshall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by operation of any\npayment under Paragraph 1(d) of this Agreement.\n6. Non-Solicitation/Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE\nwill not directly or indirectly, solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or\nbusiness organization, any NIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not\nsuch employment is pursuant to a written agreement or is at will or any independent contractor working for Nike.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement, NIKE shall be entitled\nto an accounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly\nhas realized and/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid\nby NIKE pursuant to Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or\nremedies to which NIKE may be entitled at law or in equity.\n8. General Provisions.\n(a) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE’s employment, regardless of the\nreason for termination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will be effective\nunless executed in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts specifically\nreferred to therein.\n(c) Severability. Each provision herein will be treated as a separate and independent clause and unenforceability of any one\nclause will in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable\nor invalid by a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that\njurisdiction.\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE's employment hereunder, shall be construed according\nto the laws of the State of Oregon. EMPLOYEE further hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and\nvenue for any action or proceeding arising out of or relating to this Agreement shall lie in the state and federal courts located in Oregon.\nEMPLOYEE NIKE, Inc.\n/s/ Jeanne Jackson By /s/ Mark Parker\nName: Mark Parker\nDATE March 4, 2009 Title: President/CEO Nike, Inc.	EX-10.21 4nke-5312014xexhibit1021.htm COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGMT\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\nJeanne Jackson ("EMPLOYEE")\nand\nNIKE, Inc., and its parent, divisions,\nsubsidiaries, affiliates, successors and assigns. ("NIKE"):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon initial employment with NIKE and is a condition\nof such employment. Employee acknowledges that he/she was informed in a written job offer at least two weeks before starting work that this\nCovenant Not to Compete and Non-Disclosure Agreement is required and is a condition of employment.\nB. Over the course of EMPLOYEE'S employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to\ndevelop confidential information peculiar to NIKE's business and not generally known to the public as defined below ("Protected Information").\nIt is anticipated that EMPLOYEE will continue to be exposed to Protected Information of greater sensitivity as EMPLOYEE advances in the\ncompany and this Agreement will remain in effect in the event EMPLOYEE advances and until EMPLOYEE leaves the company or it is\nsuperseded by a new written agreement executed by the parties.\nC. The nature of NIKE's business is highly competitive and disclosure of any Protected Information would result in severe damage to\nNIKE and be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected Information of NIKE can be used to NIKE's\ndetriment anywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete.\n(a) Competition Restriction. During EMPLOYEE'S employment by NIKE, under the terms of any employment contract or\notherwise, and for 1 year thereafter, (the "Restriction Period"), EMPLOYEE will not directly or indirectly, own, manage, control, or participate\nin the ownership, management or control of, or be employed by, consult for, or be connected in any manner with, any business engaged\nanywhere in the world in the athletic footwear, athletic apparel or sports equipment, sports electronics/technology and sports accessories\nbusiness, or any other business which directly competes with NIKE or any of its parent, subsidiaries or affiliated corporations (a "Competitor").\nThis provision is subject to NIKE's option to waive all or any portion of the Restriction Period as more specifically provided below.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall\nautomatically toll from the date of the first breach, and all subsequent breaches, until the resolution of the breach through private settlement,\njudicial or other action, including all appeals. The Restriction Period shall continue upon the effective date of any such settlement, judicial or\nother resolution. NIKE shall not be obligated to pay EMPLOYEE the additional compensation described in paragraph 1(d) below during any\nperiod of time in which this Agreement is tolled due to EMPLOYEE'S breach. In the event EMPLOYEE receives such additional compensation\nafter any such breach, EMPLOYEE must immediately reimburse NIKE in the amount of all such compensation upon the receipt of a written\nrequest by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the Restriction\nPeriod or to limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a portion of\nthe Restriction Period is waived or the definition of Competitor is limited, NIKE shall not be obligated to pay EMPLOYEE for any period of\ntime as to which the covenant not to compete has been waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above, should NIKE\nterminate EMPLOYEE'S employment without cause and elect to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a\nmonthly payment equal to one hundred percent (100%) of EMPLOYEE's last monthly base salary while the Restriction Period is in effect.\nExcept where prohibited by law, if Nike terminates EMPLOYEE for "cause," no additional consideration will be owed to EMPLOYEE under\nthis Agreement and the covenant not to compete will remain enforceable. For purposes of this Agreement only, "cause" shall mean:\ni)\ninsubordination, (ii) acts of dishonesty, (iii) involvement in illegal activities where such involvement in illegal activities violates Nike policies,\nplaces Nike at risk or has or could damage Nike's reputation in the community or any of its related or subsidiary companies, (iv) violation of\nNike's anti-harassment or anti-discrimination policy, and (v) gross neglect of EMPLOYEE'S duties or willful misconduct that, in either case,\nresults in\neconomic harm to Nike or harm to Nike's reputation. Nothing in this paragraph or Agreement alters the employment-at-will relationship\nbetween Nike and EMPLOYEE.\nIf EMPLOYEE voluntarily terminates employment and NIKE elects to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a\nmonthly severance payment equal to fifty percent (50%) of EMPLOYEE'S last monthly base salary while the Restriction Period is in effect. The\nfirst payment to EMPLOYEE of additional consideration shall follow on the next applicable pay period after the election to enforce the non-\ncompetition agreement, payable in accordance with NIKE's payroll practices.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE'S\nnew employer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period,\nwherever located and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure Agreement\n(a) Protected Information Defined. "Protected Information" shall mean all proprietary information, in whatever form and format, of\nNIKE and all information provided to NIKE by third parties which NIKE is obligated to keep confidential. EMPLOYEE agrees that any and all\ninformation to which EMPLOYEE has access concerning NIKE projects and internal NIKE information is Protected Information, whether in\nverbal form, machine-readable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting\nthe\nforegoing, Protected Information includes trade secrets and competitively sensitive business or professional information (regardless of whether\nsuch information constitutes a trade secret) relating to NIKE'S research and development activities, its intellectual property and the filing\nor\npendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor lists, contract\nfactory lists, pricing information, manufacturing plans, business and marketing plans or strategy, product development plants, product launch\nplans, financial information, sales information, methods of operation, manufacturing processes and methods, products, and personne\ninformation.\n(b)\nExcluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information that is or\nbecomes part of the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, EMPLOYEE shall be permitted\nto\nretain as part of his or her personal portfolio copies of the EMPLOYEE'S original artwork and designs, provided the EMPLOYEE presents those\npersonal portfolio copies to his or her supervisor for review and approval and provided the artwork or designs have become part of the public\ndomain. In any dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be by\nclear and convincing evidence.\n(c) Employee's Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter,\nEMPLOYEE will hold in confidence and protect all Protected Information and will not, at any time, directly or indirectly, use any Protected\nInformation for any purpose outside the scope of EMPLOYEE'S employment with NIKE or disclose any Protected Information to any third\nperson or organization without the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE will not ever copy,\ntransmit, reproduce, summarize, quote, publish or make any commercial or other use whatsoever of any Protected Information without the prior\nwritten consent of NIKE. EMPLOYEE will also take reasonable security precautions and such other actions as may be necessary to insure that\nthere is no use or disclosure, intentional or inadvertent, of Protected Information in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at anytime, and in any event, upon termination of employment,\nEMPLOYEE shall immediately return to NIKE all Protected Information in whatever form, including tapes, notebooks, drawings, digital files, or\nother media containing Protected Information, and all copies thereof, then in EMPLOYEE'S possession or under EMPLOYEE'S control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if\nEMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person employed or not\nemployed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such\nincident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information. NIKE\nshall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by operation of any\npayment under Paragraph 1(d) of this Agreement.\n6. Non-Solicitation/Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE\nwill not directly or indirectly, solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company\nor\nbusiness organization, any NIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or\nnot\nsuch employment is pursuant to a written agreement or is at will or any independent contractor working for Nike.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement, NIKE shall be entitled\nto\nan accounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly\nhas realized and/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid\nby NIKE pursuant to Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights\nor\nremedies to which NIKE may be entitled at law or in equity.\n8. General Provisions\n(a) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE'S employment, regardless of the\nreason for termination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will be effective\nunless executed in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts specifically\nreferred to therein.\n(c) Severability. Each provision herein will be treated as a separate and independent clause and unenforceability of any one\nclause will in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable\nor invalid by a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that\njurisdiction.\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE's employment hereunder, shall be construed according\nto the laws of the State of Oregon. EMPLOYEE further hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and\nvenue for any action or proceeding arising out of or relating to this Agreement shall lie in the state and federal courts located in Oregon.\nEMPLOYEE NIKE, Inc.\n/s/ Jeanne Jackson By / s/ Mark Parker\nName: Mark Parker\nDATE March 4, 2009\nTitle: President/CEO Nike, Inc.	EX-10 .21 4 nke-5312014xexhibit1021.htm COVENANT NOT TO COMPETE AND NON-DISCLOSURE AGMT\nCOVENANT NOT TO COMPETE\nAND NON-DISCLOSURE AGREEMENT\nPARTIES:\nJeanne Jackson ("EMPLOYEE")\nand\nNIKE, Inc., and its parent, divisions,\nsubsidiaries, affiliates, successors and assigns. ("NIKE"):\nRECITALS:\nA. This Covenant Not to Compete and Non-Disclosure Agreement is executed upon initial employment with NIKE and is a condition\nof such employment. Employee acknowledges that he/she was informed in a written job offer at least two weeks before starting work that this\nCovenant Not to Compete and Non-Disclosure Agreement is required and is a condition of employment.\nB. Over the course of EMPLOYEE's employment with NIKE, EMPLOYEE will be or has been exposed to and/or is in a position to\ndevelop confidential information peculiar to NIKE’s business and not generally known to the public as defined below (“Protected Information”).\nIt is anticipated that EMPLOYEE will continue to be exposed to Protected Information of greater sensitivity as EMPLOYEE advances in the\ncompany and this Agreement will remain in effect in the event EMPLOYEE advances and until EMPLOYEE leaves the company or it is\nsuperseded by a new written agreement executed by the parties.\nC. The nature of NIKE's business is highly competitive and disclosure of any Protected Information would result in severe damage to\nNIKE and be difficult to measure.\nD. NIKE makes use of its Protected Information throughout the world. Protected Information of NIKE can be used to NIKE's\ndetriment anywhere in the world.\nAGREEMENT:\nIn consideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows:\n1. Covenant Not to Compete.\n(a) Competition Restriction. During EMPLOYEE’s employment by NIKE, under the terms of any employment contract or\notherwise, and for 1 year thereafter, (the “Restriction Period”), EMPLOYEE will not directly or indirectly, own, manage, control, or participate\nin the ownership, management or control of, or be employed by, consult for, or be connected in any manner with, any business engaged\nanywhere in the world in the athletic footwear, athletic apparel or sports equipment, sports electronics/technology and sports accessories\nbusiness, or any other business which directly competes with NIKE or any of its parent, subsidiaries or affiliated corporations (a “Competitor”).\nThis provision is subject to NIKE's option to waive all or any portion of the Restriction Period as more specifically provided below.\n(b) Extension of Time. In the event EMPLOYEE breaches this covenant not to compete, the Restriction Period shall\nautomatically toll from the date of the first breach, and all subsequent breaches, until the resolution of the breach through private settlement,\njudicial or other action, including all appeals. The Restriction Period shall continue upon the effective date of any such settlement, judicial or\nother resolution. NIKE shall not be obligated to pay EMPLOYEE the additional compensation described in paragraph 1(d) below during any\nperiod of time in which this Agreement is tolled due to EMPLOYEE’s breach. In the event EMPLOYEE receives such additional compensation\nafter any such breach, EMPLOYEE must immediately reimburse NIKE in the amount of all such compensation upon the receipt of a written\nrequest by NIKE.\n(c) Waiver of Non-Compete. NIKE has the option, in its sole discretion, to elect to waive all or a portion of the Restriction\nPeriod or to limit the definition of Competitor, by giving EMPLOYEE seven (7) days prior notice of such election. In the event all or a portion of\nthe Restriction Period is waived or the definition of Competitor is limited, NIKE shall not be obligated to pay EMPLOYEE for any period of\ntime as to which the covenant not to compete has been waived.\n(d) Additional Consideration. As additional consideration for the covenant not to compete described above, should NIKE\nterminate EMPLOYEE’s employment without cause and elect to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a\nmonthly payment equal to one hundred percent (100%) of EMPLOYEE's last monthly base salary while the Restriction Period is in effect.\nExcept where prohibited by law, if Nike terminates EMPLOYEE for “cause,” no additional consideration will be owed to EMPLOYEE under\nthis Agreement and the covenant not to compete will remain enforceable. For purposes of this Agreement only, “cause” shall mean: i)\ninsubordination, (ii) acts of dishonesty, (iii) involvement in illegal activities where such involvement in illegal activities violates Nike policies,\nplaces Nike at risk or has or could damage Nike’s reputation in the community or any of its related or subsidiary companies, (iv) violation of\nNike’s anti-harassment or anti-discrimination policy, and (v) gross neglect of EMPLOYEE’S duties or willful misconduct that, in either case,\nresults in\neconomic harm to Nike or harm to Nike’s reputation. Nothing in this paragraph or Agreement alters the employment-at-will relationship\nbetween Nike and EMPLOYEE.\nIf EMPLOYEE voluntarily terminates employment and NIKE elects to enforce the non-competition agreement, NIKE shall pay EMPLOYEE a\nmonthly severance payment equal to fifty percent (50%) of EMPLOYEE’s last monthly base salary while the Restriction Period is in effect. The\nfirst payment to EMPLOYEE of additional consideration shall follow on the next applicable pay period after the election to enforce the non-\ncompetition agreement, payable in accordance with NIKE’s payroll practices.\n2. Subsequent Employer. EMPLOYEE agrees to notify NIKE at the time of separation of employment of the name of EMPLOYEE’s\nnew employer, if known. EMPLOYEE further agrees to disclose to NIKE the name of any subsequent employer during the Restriction Period,\nwherever located and regardless of whether such employer is a competitor of NIKE.\n3. Non-Disclosure Agreement.\n(a) Protected Information Defined. “Protected Information” shall mean all proprietary information, in whatever form and format, of\nNIKE and all information provided to NIKE by third parties which NIKE is obligated to keep confidential. EMPLOYEE agrees that any and all\ninformation to which EMPLOYEE has access concerning NIKE projects and internal NIKE information is Protected Information, whether in\nverbal form, machine-readable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting the\nforegoing, Protected Information includes trade secrets and competitively sensitive business or professional information (regardless of whether\nsuch information constitutes a trade secret) relating to NIKE’s research and development activities, its intellectual property and the filing or\npendency of patent applications, confidential techniques, methods, styles, designs, design concepts and ideas, customer and vendor lists, contract\nfactory lists, pricing information, manufacturing plans, business and marketing plans or strategy, product development plants, product launch\nplans, financial information, sales information, methods of operation, manufacturing processes and methods, products, and personnel\ninformation.\n(b) Excluded Information. Notwithstanding paragraph 3(a), Protected Information excludes any information that is or\nbecomes part of the public domain through no act or failure to act on the part of EMPLOYEE. Specifically, EMPLOYEE shall be permitted to\nretain as part of his or her personal portfolio copies of the EMPLOYEE’S original artwork and designs, provided the EMPLOYEE presents those\npersonal portfolio copies to his or her supervisor for review and approval and provided the artwork or designs have become part of the public\ndomain. In any dispute between the parties with respect to this exclusion, the burden of proof will be on EMPLOYEE and such proof will be by\nclear and convincing evidence.\n(c) Employee’s Obligations. During the period of employment by NIKE and for a period of two (2) years thereafter,\nEMPLOYEE will hold in confidence and protect all Protected Information and will not, at any time, directly or indirectly, use any Protected\nInformation for any purpose outside the scope of EMPLOYEE's employment with NIKE or disclose any Protected Information to any third\nperson or organization without the prior written consent of NIKE. Specifically, but not by way of limitation, EMPLOYEE will not ever copy,\ntransmit, reproduce, summarize, quote, publish or make any commercial or other use whatsoever of any Protected Information without the prior\nwritten consent of NIKE. EMPLOYEE will also take reasonable security precautions and such other actions as may be necessary to insure that\nthere is no use or disclosure, intentional or inadvertent, of Protected Information in violation of this Agreement.\n4. Return of Protected Information. At the request of NIKE at anytime, and in any event, upon termination of employment,\nEMPLOYEE shall immediately return to NIKE all Protected Information in whatever form, including tapes, notebooks, drawings, digital files, or\nother media containing Protected Information, and all copies thereof, then in EMPLOYEE's possession or under EMPLOYEE’s control.\n5. Unauthorized Use. During the period of employment with NIKE and thereafter, EMPLOYEE will notify NIKE immediately if\nEMPLOYEE becomes aware of the unauthorized possession, use or knowledge of any Protected Information by any person employed or not\nemployed by NIKE at the time of such possession, use or knowledge. EMPLOYEE will cooperate with NIKE in the investigation of any such\nincident and will cooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information. NIKE\nshall provide reasonable reimbursement to EMPLOYEE for each hour so engaged and that amount shall not be diminished by operation of any\npayment under Paragraph 1(d) of this Agreement.\n6. Non-Solicitation/Non-Recruitment. During the term of this Agreement and for a period of one (1) year thereafter, EMPLOYEE\nwill not directly or indirectly, solicit, divert or hire away (or attempt to solicit, divert or hire away) to or for himself or any other company or\nbusiness organization, any NIKE employee, whether or not such employee is a full-time employee or temporary employee and whether or not\nsuch employment is pursuant to a written agreement or is at will or any independent contractor working for Nike.\n7. Accounting of Profits. EMPLOYEE agrees that, if EMPLOYEE should violate any term of this Agreement, NIKE shall be entitled\nto an accounting and repayment of all profits, compensation, commissions, remuneration or benefits which EMPLOYEE directly or indirectly\nhas realized and/or may realize as a result of or in connection with any such violation (including the return of any additional consideration paid\nby NIKE pursuant to Paragraph 1(d) above). Such remedy shall be in addition to and not in limitation of any injunctive relief or other rights or\nremedies to which NIKE may be entitled at law or in equity.\n8. General Provisions.\n(a) Survival. This Agreement shall continue in effect after the termination of EMPLOYEE’s employment, regardless of the\nreason for termination.\n(b) Waiver. No waiver, amendment, modification or cancellation of any term or condition of this Agreement will be effective\nunless executed in writing by both parties. No written waiver will excuse the performance of any act other than the act or acts specifically\nreferred to therein.\n(c) Severability. Each provision herein will be treated as a separate and independent clause and unenforceability of any one\nclause will in no way impact the enforceability of any other clause. Should any of the provisions in this Agreement be found to be unreasonable\nor invalid by a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that\njurisdiction.\n(d) Applicable Law/Jurisdiction. This Agreement, and EMPLOYEE's employment hereunder, shall be construed according\nto the laws of the State of Oregon. EMPLOYEE further hereby submits to the jurisdiction of, and agrees that exclusive jurisdiction over and\nvenue for any action or proceeding arising out of or relating to this Agreement shall lie in the state and federal courts located in Oregon.\nEMPLOYEE NIKE, Inc.\n/s/ Jeanne Jackson By / s/ Mark Parker\nName: Mark Parker\nDATE March 4, 2009\nTitle: President/CEO Nike, Inc.
+a87ebed40675b7ed9c2d4a0721abbefb.pdf	effective_date jurisdiction party term	EX-10 .34 15 iex-20171231xex1034.htm EXHIBIT 10.34\nEX-10.34\nCONFIDENTIAL INFORMATION, WORK PRODUCT\nAND RESTRICTIVE COVENANT AGREEMENT\nTHE UNDERSIGNED (“Employee”) has been offered employment with IDEX Corporation or one of its Groups, Divisions or\nBusiness Units (IDEX Corporation and its former, current and future Groups, Divisions and Business Units are referred to as\n“IDEX”; any entity that is part of IDEX and at some point employs Employee is referred to as an “IDEX Entity”; and the particular\nIDEX Entity that employs Employee as of the date of this Agreement is referred to as “Employer”) and desires to become an\nemployee of Employer or IDEX Entity.\nWHEREAS, it is a condition of employment that Employee enter into this Confidential Information, Work Product and Restrictive\nCovenant Agreement (the “Agreement”); and\nWHEREAS, Employee acknowledges that Employee received prior notice that Employee’s execution of this Agreement is a\nrequired condition of Employee’s at-will employment with Employer or other IDEX Entity.\nIN CONSIDERATION OF employment by Employer, access to and use of Confidential Information and Trade Secrets (both as\ndefined below), and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,\nEmployee agrees as follows:\n1.\nScope of Agreement.\nThis Agreement shall apply in connection with all of Employee’s activities on behalf of or with respect to Employer and/or any\nIDEX Entity.\nThis Agreement shall continue to apply and remain in full force and effect if Employee is transferred to or otherwise becomes an\nemployee of an IDEX Entity other than Employee’s initial Employer. If Employee is transferred to or otherwise becomes an\nemployee of an IDEX Entity other than Employee’s initial Employer, such other entity shall thereafter be deemed to be Employer\nfor all purposes of this Agreement.\nEmployer and each IDEX Entity and their respective successors and assigns shall be beneficiaries of this Agreement and shall be\nentitled to enforce this Agreement against Employee. In the event that Employee’s employment moves from Employer to any IDEX\nEntity, where allowed by applicable law, this Agreement shall be deemed automatically assigned to the new IDEX Entity. The\nparties otherwise agree that Employer and each IDEX Entity may assign this Agreement without notice to, or consent from,\nEmployee.\n2.\nDefinitions.\n“Confidential Information” means (a) competitively sensitive information, (b) of importance to IDEX, and (c) that becomes\nknown to you through your employment with IDEX. Confidential Information includes, but is not limited to, information about\nIDEX’s operations, services, and research and development of IDEX’s operations or services; names and other listings of current or\nprospective customers, vendors, suppliers, and referral sources; proposals to or the terms of any arrangements or agreements with\nany current or prospective customers, vendors, and suppliers, including payment and pricing information; the implementation of\ncustomer-specific projects; the composition or description of future services that will or may be offered by IDEX; marketing\nstrategies; financial and sales information; and technical expertise and know-how developed by IDEX, including the unique manner\nin which IDEX conducts its business. Confidential Information also includes information disclosed to IDEX by any third party\n(including but not limited to current or prospective customers) that IDEX is required to treat as confidential. Confidential\nInformation does not include information readily available to the public, so long as it was not made public by you or anyone\nworking on your behalf. It is not necessary that information, data, or materials be a trade secret in order for such information, data,\nor materials to be Confidential Information.\n“Creative Works” means and includes all works of authorship and other creative works of any kind (including but not limited to\ntrademarks, service marks and other marks, trade dresses, logos, trade names, advertising, promotional materials, product and\nprocess descriptions, manuals, report forms, spreadsheets, diagrams, plans, charts, blueprints, designs, specifications, prototypes,\nmodels, software code, chip designs, and circuitry designs), regardless of form, that directly or indirectly relate to the actual or\nanticipated business, research or development of IDEX, are directed to or capable of fulfilling any need or inquiry of any customer\nor potential customer of IDEX, and/or that are conceived, created, developed, made or produced by Employee in whole or in part\nduring Employee’s IDEX Employment (as defined below) or within six months after Employee’s IDEX Employment terminates,\nwhether conceived, created, developed, made or produced alone or with one or more other persons, whether or not any of such other\npersons are employees of IDEX, whether conceived, created, developed, made or produced during or outside normal work hours,\nand whether conceived, created, developed, made or produced within or outside the premises of IDEX. For the avoidance of doubt,\n“Creative Works” shall not be deemed to include works of authorship and other creative works that Employee conceives, creates,\ndevelops, makes or produces independent of all work that Employee does for IDEX, entirely on Employee’s own time, and without\nusing any equipment, supplies, facilities, intellectual property, or trade secrets or other confidential or proprietary information of\nIDEX and do not relate to the current or anticipated business, research or development of IDEX.\n“IDEX Employment” means employment with Employer and any IDEX Entity.\n“Last Day of Employment” means Employee’s last day of employment with Employer or any IDEX Entity (whichever is later). It\ndoes not encompass movement of Employee’s employment directly from Employer to any IDEX Entity. Such movement shall be\ndeemed as continued employment.\n“Inventions” means and includes all ideas, discoveries and inventions of any kind, whether or not patentable, that directly or\nindirectly relate to the actual or anticipated business, research or development of IDEX, are directed to or capable of fulfilling any\nneed or inquiry of any customer or potential customer of IDEX, and/or that are conceived, created or developed by Employee in\nwhole or in part during Employee’s IDEX Employment or within six months after Employee’s IDEX Employment terminates,\nwhether conceived, created or developed alone or with one or more other persons, whether or not any of such other persons are\nemployees of IDEX, whether conceived, created or developed during or outside normal work hours, and whether conceived, created\nor developed within or outside the IDEX premises. For the avoidance of doubt, “Inventions” shall not be deemed to include ideas,\ndiscoveries and inventions that Employee conceives, creates, develops and reduces to practice independent of all work that\nEmployee does for IDEX, entirely on Employee’s own time, and without using any equipment, supplies, facilities, intellectual\nproperty, or trade secrets or other confidential or proprietary information of IDEX and do not relate to the current or anticipated\nbusiness, research or development of IDEX.\n“Restricted Activities” means (a) any activity for a non-IDEX person or entity that, during the eighteen (18) months prior to\nEmployee’s Last Date of Employment, is (i) competitive with the business of Employer or IDEX Entity and (ii) involves\nEmployee’s performance of the same or substantially similar material responsibilities that Employee performed on behalf of\nEmployer or IDEX Entity; or (b) any other activity involving the unauthorized use or disclosure (or the likelihood of the\nunauthorized use or disclosure) of Confidential Information. For purposes of this definition and of Restricted Geographic Area\nbelow, the term “material” means the expected job duties and responsibilities associated with Employee’s position or that are\nrequested by Employer or IDEX Entity from time to time.\n“Restricted Geographic Area” means (a) any geographic area where Employer or IDEX Entity is doing business during\nEmployee’s employment by Employer or IDEX Entity and where Employee’s use or disclosure of Confidential Information would\nmaterially disadvantage Employer or IDEX Entity regardless of Employee’s physical location; or (b) any geographic area where\nEmployee performed material responsibilities for Employer or IDEX Entity and, if Employee’s material responsibilities are\nconfined to any specific location(s), anywhere within a forty (40) mile radius of such specific location(s) where Employee\nperformed material responsibilities - both during the eighteen (18) months prior to Employee’s Last Date of Employment.\n“Restricted Period” means the period of Employee’s employment with Employer or IDEX Entity and the following periods of\ntime after Employee’s Last Date of Employment: (a) twelve (12) months for Employee’s Non-Competition\nand Non-Solicitation of or Interference with Customers obligations under paragraphs 5(a) and 5(b); and (b) twenty-four (24) months\nfor Employee’s Non-Inducement and Non-Hire obligations under paragraph 5(c) of the Agreement.\n“Third Party Confidential Information” means Confidential Information of an IDEX customer, supplier, or other third party.\n“Third Party Work Product” means Work Product (as defined below) to which IDEX has agreed to grant any right, title, claim,\nlicense or interest to any customer or other third party, but only to the extent of the specific right, title, claim, license or interest\nagreed to be granted to such customer or other third party.\n“Trade Secret” means information defined as a trade secret by the applicable state Trade Secrets Act, the Federal Defend Trade\nSecrets Act of 2016, or other applicable law.\n“Work Product” means and includes (a) all Creative Works, (b) all Inventions, and (c) all other work product of any kind that\nresults from any work that Employee does for IDEX.\n3.\nConfidential Information and Trade Secrets.\n(a) Employee acknowledges that Employee will be provided and/or have access to Confidential Information and Trade Secrets\nduring Employee’s IDEX Employment.\n(b) Employee shall at all times during and after the termination of Employee’s IDEX Employment safeguard and protect the\nconfidential nature of all Confidential Information and Trade Secrets, and take such precautions with respect thereto as Employer or\nany IDEX Entity may from time to time request.\n(c) Employee shall not at any time during or after the termination of Employee’s IDEX Employment, either individually or on\nbehalf of Employer, an IDEX Entity, or any other person or entity, directly or indirectly:\n(i)\ndisclose, use, provide, publish, transfer or otherwise make available or disseminate any Confidential Information\nor Trade Secrets, except (A) as reasonably required in connection with the proper performance of Employee’s duties and\nresponsibilities with Employer or IDEX Entity, and (B) in the case of Third Party Confidential Information or Trade\nSecrets, as authorized by the relevant customer, supplier or other third party; or\n(ii)\nsell, market or otherwise attempt to personally profit or benefit in any way from any Confidential Information or\nTrade Secrets.\n(d) The obligation of non‐disclosure and non‐use of Confidential Information and Trade Secrets shall continue to exist for so long\nas such information remains confidential (excepting improper use and/or disclosure by Employee or permissible disclosures allowed\nunder this Agreement); if, however, a court requires a shorter duration, then the maximum time allowable by law will control, which\nwill not be less than eighteen (18) months following Employee’s Last Day of Employment.\n(e) Immediately upon the request of IDEX, Employee shall deliver to IDEX all Confidential Information, Trade Secrets and\nproperty that IDEX may from time to time request. In addition, at such time as Employee’s IDEX Employment terminates,\nEmployee shall deliver to Employer or IDEX Entity all Confidential Information, Trade Secrets and property in Employee’s\npossession or control (including in hard copy or electronic form) without retaining any copies thereof or extracts therefrom in any\nform, except for such Confidential Information, Trade Secrets or property, if any, that IDEX may specifically authorize Employee to\nretain and then only for the particular purpose or purposes for which Employee is authorized to use such Confidential Information,\nTrade Secrets or property by IDEX.\n(f) In addition to and not in lieu of the above obligations, Employee shall at all times comply with all restrictions on disclosure and\nuse of Third Party Confidential Information or Trade Secrets imposed under (i) any confidentiality, non-disclosure or other\nagreement, commitment or undertaking of IDEX with any customer, supplier or other third party of which Employee has been\nadvised or is aware, and (ii) any confidentiality, non-disclosure or other agreement, commitment or undertaking of Employee with\nany customer, supplier or other third party.\n(g) Employee will not be held criminally or civilly liable under any Federal or state trade secret law for the disclosure of a Trade\nSecret that: (i) is made (A) in confidence to a Federal, state, or local government official, either directly or indirectly, or to an\nattorney, and (B) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or\nother document filed in a lawsuit or other proceeding, if such filing is made under seal. Disclosure of Trade Secrets to attorneys,\nmade under seal, or pursuant to court order is also protected under 18 U.S . Code § 1833 in any retaliation lawsuit based on the\nreporting of a suspected violation of law.\n(h) Nothing in this Agreement is intended to be or will be construed to prevent, impede, or interfere with Employee’s right to\nrespond accurately and fully to any question, inquiry, or request for information regarding Employee or Employee’s employment\nwith Employer or IDEX Entity when required from initiating communications directly with, or responding to any inquiry from, or\nproviding truthful testimony and information to any Federal, state, or other regulatory authority in the course of an investigation or\nproceeding authorized by law and carried out by such agency. Employee is not required to contact Employer or IDEX Entity\nregarding the subject matter of any such communications before Employee engages in such communications. Nothing in this\nAgreement is intended to restrict Employee’s legally-protected right to discuss wages, hours or other working conditions with co-\nworkers, or in any way limit Employee’s rights under the National Labor Relations Act or any whistleblower act.\n4.\nWork Product.\n(a) Employee acknowledges that continuous improvement and innovation are key business strategies and objectives of IDEX,\nand, during Employee’s IDEX Employment, Employee is expected to conceive, create, develop, make and produce Work\nProduct.\n(b)\nEmployee shall fully and promptly disclose to Employer or IDEX Entity all Work Product.\n(c)\nAs between Employee and IDEX, all Work Product shall be deemed to be a work made for hire and the sole and\nexclusive property of IDEX.\n(d)\nEmployee hereby assigns to IDEX all of Employee’s current and future right, title, claim and interest in and to all Work\nProduct, including but not limited to all United States and foreign patent rights and copyrights.\n(e)\nEmployee shall not at any time during or after the termination of Employee’s IDEX Employment, either individually or\non behalf of any other person or entity, directly or indirectly: (i) use any Work Product except (A) as reasonably required in\nconnection with the proper performance of Employee’s duties and responsibilities with Employer or IDEX Entity, and (B) in the\ncase of Third Party Work Product, as authorized by the relevant customer or other third party; or (ii) sell, market, or otherwise\nattempt to personally profit or benefit in any way from any Work Product.\n5.\nRestrictive Covenants.\n(a) Non-Competition. Employee agrees that during the Restricted Period and in the Restricted Geographic Area, Employee will\nnot engage in any Restricted Activities; provided that Employee may invest Employee’s funds in securities of a person engaged in a\nbusiness that is directly competitive with IDEX if the securities of such a person are listed for trading on a registered securities\nexchange or actively traded in an over-the-counter market and Employee’s holdings represent less than one percent (1%) of the total\nnumber of shares or principal amount of the securities of such a person outstanding.\n(b) Non‐Solicitation of or Interference with Customers. Employee acknowledges that the relationships that Employer and any\nIDEX Entity has with their customers and employees, the goodwill related to such relationships, and the business knowledge,\ntraining, and skills of their employees have been developed with significant investments of time, effort, and expense on the part of\nIDEX and are valuable assets of IDEX. During the Restricted Period, for the purpose of engaging in Restricted Activities,\nEmployee shall not, directly or indirectly: (i) solicit business from or perform services for, or for the benefit of, any established\ncustomer or established account of Employer or IDEX Entity with which Employee had contact, participated in the contact, or about\nwhich Employee had knowledge of Confidential Information by reason of Employee’s relationship with Employer or IDEX Entity\nwithin the eighteen (18) month period prior to Employee’s Last Date of Employment; (ii) solicit business from or perform services\nfor, or for the benefit of, any customer or account that was pursued by Employer or IDEX Entity and with which Employee had\ncontact, participated in the contact, or about which Employee had knowledge of by reason of Employee’s access to or use of\nConfidential Information within the eighteen (18) month period prior to Employee’s Last Date of Employment; or (iii) influence,\nseek to influence, or contact for the purpose of influencing or seeking to influence, any person or entity to limit or cease doing\nbusiness with Employer or IDEX Entity.\n(c) Non‐Inducement and Non-Hire. During the Restricted Period, Employee shall not, directly or indirectly, solicit, hire, attempt to\nsolicit or hire, or participate in any attempt to solicit or hire for any non‐IDEX entity, any person who at any time during the\neighteen (18) months immediately preceding the date of such solicitation or hire is or was an officer, employee or consultant of\nEmployer or IDEX Entity occupying a position uniquely essential to the management, organization, or servicing of the business of\nEmployer or IDEX Entity to resign from his or her employment, or whom Employee was aware was being actively recruited by\nIDEX, and with whom Employee had contact or participated in contact during Employee’s employment with Employer or IDEX\nEntity.\n(d) Covenants are Reasonable. The parties understand and agree that the covenants in this paragraph are necessary and essential to\nprotect IDEX’s proprietary and confidential business information; that the area, duration and scope of the covenants in this\nparagraph are reasonable and necessary to protect IDEX; that they do not unduly oppress or restrict Employee’s ability to earn a\nlivelihood in Employee’s chosen profession; that they are not an undue restraint on Employee’s trade or any of the public interests\nthat may be involved; that good and valuable consideration exists for Employee’s agreement to be bound by such covenants; and\nthat Employer or IDEX Entity has a legitimate business purpose in requiring Employee to abide by the covenants set forth in this\nparagraph.\n6.\nFurther Assurances.\nEmployee shall comply with all instructions and directions of Employer and any IDEX Entity and provide all assistance and\ncooperation, provide and make available all records, files and information, execute and deliver all assignments, affidavits,\ncertifications and other documents and instruments, and take and do all other actions and things that Employer or any IDEX Entity\nmay at any time and from time to time properly request to protect and preserve Confidential Information, evidence, secure, perfect\nand protect its rights, title, claims and interests in Work Product, seek and obtain United States and/or foreign patents with respect to\nWork Product, comply with and carry out agreements, commitments and undertakings made by IDEX to any customer, supplier or\nother third party relating to Third Party Confidential Information, Trade Secrets and/or Third Party Work Product, or carry out and\nimplement the provisions of this Agreement.\nThe IDEX Entity that requests Employee to take or perform any action or thing pursuant to this paragraph shall reimburse\nEmployee for Employee’s reasonable and necessary out-of-pocket costs and expenses in taking or performing such action or things;\nprovided, however, that (i) Employee shall advise such IDEX Entity prior to incurring any out-of-pocket cost and expense in excess\nof $50.00 so that such IDEX Entity can determine whether such out-of-pocket expense is reasonable and necessary in advance of it\nbeing incurred and advise Employee whether such IDEX Entity wishes to withdraw or modify its request for Employee to take or\nperform such action or thing, (ii) Employee shall not be entitled to be reimbursed for any cost or expense that is attributable to or\narises out of any failure of Employee to comply with the provisions of this Agreement, and (iii) the obligation to reimburse\nEmployee for out-of-pocket costs and expenses shall not apply in connection with a lawsuit or other legal action to enforce this\nAgreement against Employee.\n7.\nBreach and Equitable Remedies.\nEmployee acknowledges that the restrictions contained in this Agreement, including in paragraphs 2, 3, 4 or 5 above, are necessary\nto protect the legitimate interests of IDEX and that any violation of this Agreement would result in irreparable harm and injury to\nEmployer or IDEX Entity. In the event of a breach or threatened breach by Employee of the provisions of this Agreement,\nEmployee agrees that Employer or IDEX Entity will be entitled to an injunction, without first posting bond and without notice,\nrestraining Employee from such breach or threatened breach and to any other legal or equitable remedies available to Employer or\nIDEX Entity. Employer or IDEX Entity will also be entitled to all costs and expenses (including reasonable attorneys’ fees) from\nEmployee should Employee breach this Agreement.\n8.\nRestrictive Agreements and Restricted Information.\n(a) Except as disclosed on the Schedule of Restrictive Agreements attached to this Agreement, Employee has not made and is not\na party or subject to any confidentiality, non-disclosure, inventions, employment or other agreement, commitment or undertaking\nwith a prior employer or any other person or entity that could limit or restrict Employee in the performance of Employee’s duties\nand responsibilities with Employer or IDEX Entity.\n(b) Employee shall not at any time during Employee’s IDEX Employment disclose, provide or make available to Employer, IDEX\nEntity or any customer, supplier or other third party with whom IDEX has a relationship any information, data or materials that\nEmployee has obtained from a prior employer, customer, supplier or other third party that may be subject to any restriction on\ndisclosure or use (“Restricted Information”) unless Employee is clearly authorized to disclose, provide or make available such\nRestricted Information to the person or persons to whom Employee is disclosing, providing or making available such Restricted\nInformation for the purpose or purposes for which such Restricted Information is being disclosed.\n9.\nEmployment at Will.\nUnless and except to the extent Employer or IDEX Entity may expressly agree otherwise in a separate written employment\nagreement with Employee, Employee’s IDEX Employment is and shall at all times be “at will”, and nothing in this Agreement is\nintended to change Employee’s status as an “at will” employee or create or imply any right or expectation in Employee of\ncontinuing IDEX Employment.\n10.\nReasonableness, Severability and Reformation.\nEmployee acknowledges that the provisions of this Agreement and the obligations imposed on Employee under this Agreement are\nfair and reasonable, not unduly burdensome or restrictive on Employee, and appropriate and necessary for the protection of the\nproperty and legitimate business interests of Employer or other IDEX Entity.\nThe provisions of this Agreement are severable. Employee agrees that if any particular paragraphs, subparagraphs, subparts,\nphrases, words, or other portions of this Agreement are determined by an appropriate court to be invalid or unenforceable as written,\nthey shall be modified as necessary to be valid or enforceable, and such modification shall not affect the remaining provisions of\nthis Agreement; or, if they cannot be modified to be made valid or enforceable, then they shall be severed from this Agreement, and\nall remaining non-eliminated paragraphs, subparagraphs, subparts, phrases, words, or other portions of this Agreement shall be\nenforced.\n11.\nMiscellaneous.\n(a) This Agreement shall be governed by, interpreted, and enforced in accordance with the internal laws of the State of\nDelaware of the United States of America, without regard to any principles of conflict of laws. Any action regarding this\nAgreement or Employee’s employment with or separation from Employer or other IDEX Entity must be brought and\nprosecuted in the state or federal courts where the principal place of business for Employer or other IDEX Entity is located,\nand the parties will not dispute that personal jurisdiction or venue is appropriate and convenient in those courts.\n(b)\nThis Agreement sets forth the entire agreement and understanding of the parties relating to its subject matter, and no\nrepresentation, commitment or undertaking has been made to Employee in connection with, or to induce Employee to enter into,\nthis Agreement other than as set forth herein.\n(c)\nThe rights and remedies of IDEX under this Agreement, and the liabilities and obligations of Employee under this\nAgreement, are not exclusive, but are in addition to any and all rights and remedies that IDEX may have, and any and all liabilities\nand obligations that Employee may have, under any law, statute, rule or regulation, any IDEX corporate policy, or, subject only to\nparagraph 11(b) above, any other contract or agreement.\n(d)\nThis Agreement may be amended, modified, or terminated, and compliance with the provisions of this Agreement may\nbe waived only in writing signed by Employee and a duly authorized officer of Employer. The waiver of or failure to enforce the\nprovisions of this Agreement or other similar agreement that IDEX may have with Employee or any other employee shall not\nconstitute a waiver of or limit or restrict in any way the right of Employer or IDEX Entity to enforce the provisions of this\nAgreement against Employee. The rights and remedies of IDEX under this Agreement shall be in addition to, and not in lieu of, any\nrights and remedies that may be available to it independent of this Agreement.\n(e)\nThis Agreement shall continue in full force and effect notwithstanding any changes in the terms and conditions of the\nEmployee’s employment with Employer or IDEX Entity, including, without limitation, any change in title, position, duties, or\nresponsibility.\n(f)\nEmployee acknowledges that (i) the signing of this Agreement is a condition to Employee being employed by Employer,\n(ii) Employee would have had no right or entitlement to IDEX Employment by Employer or other IDEX Entity if this Agreement\nhad not been signed by Employee, (iii) Employee was given the right to consult with an attorney prior to signing this Agreement,\n(iv) if Employee did not consult with an attorney prior to signing this\nAgreement, it was a voluntary choice on the part of Employee not to so consult, and (v) Employee is voluntarily entering into this\nAgreement.\n(g)\nThe termination of Employee’s IDEX Employment, regardless of the nature of or reason for the termination, shall not\nterminate or relieve Employee from complying with the provisions of this Agreement.\n(h)\nEmployee agrees that in the event Employee is offered to enter into an employment relationship with a third party at any\ntime during the existence of this Agreement, including in any such other period in which post‐employment obligations of this\nAgreement apply, the business of which is in any way competitive with Employer or other IDEX Entity, Employee shall\nimmediately advise said other third party of the existence of this Agreement and shall provide said person or entity with a copy of\nthis Agreement.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement freely and voluntarily with the intention of being\nlegally bound by it.\nEMPLOYEE\nIDEX CORPORATION\nSigned:\nName:\nDated:\nBy:\nName:\nTitle:\nDated:\n_____________________________________________________________________________________\nEmployee Name:\nSchedule of Restrictive Agreements\n(If none, insert “NONE”)	EX-10.34 15 iex-20171231xex1034.htm EXHIBIT 10.34\nEX-10.34\nCONFIDENTIAL INFORMATION, WORK PRODUCT\nAND RESTRICTIVE COVENANT AGREEMENT\nTHE UNDERSIGNED (“Employee”) has been offered employment with IDEX Corporation or one of its Groups, Divisions or\nBusiness Units (IDEX Corporation and its former, current and future Groups, Divisions and Business Units are referred to as\n“IDEX?”; any entity that is part of IDEX and at some point employs Employee is referred to as an “IDEX Entity”; and the particular\nIDEX Entity that employs Employee as of the date of this Agreement is referred to as “Employer”) and desires to become an\nemployee of Employer or IDEX Entity.\nWHEREAS, it is a condition of employment that Employee enter into this Confidential Information, Work Product and Restrictive\nCovenant Agreement (the “Agreement”); and\nWHEREAS, Employee acknowledges that Employee received prior notice that Employee’s execution of this Agreement is a\nrequired condition of Employee’s at-will employment with Employer or other IDEX Entity.\nIN CONSIDERATION OF employment by Employer, access to and use of Confidential Information and Trade Secrets (both as\ndefined below), and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,\nEmployee agrees as follows:\n1. Scope of Agreement.\nThis Agreement shall apply in connection with all of Employee’s activities on behalf of or with respect to Employer and/or any\nIDEX Entity.\nThis Agreement shall continue to apply and remain in full force and effect if Employee is transferred to or otherwise becomes an\nemployee of an IDEX Entity other than Employee’s initial Employer. If Employee is transferred to or otherwise becomes an\nemployee of an IDEX Entity other than Employee’s initial Employer, such other entity shall thereafter be deemed to be Employer\nfor all purposes of this Agreement.\nEmployer and each IDEX Entity and their respective successors and assigns shall be beneficiaries of this Agreement and shall be\nentitled to enforce this Agreement against Employee. In the event that Employee’s employment moves from Employer to any IDEX\nEntity, where allowed by applicable law, this Agreement shall be deemed automatically assigned to the new IDEX Entity. The\nparties otherwise agree that Employer and each IDEX Entity may assign this Agreement without notice to, or consent from,\nEmployee.\n2. Definitions.\n“Confidential Information” means (a) competitively sensitive information, (b) of importance to IDEX, and (c) that becomes\nknown to you through your employment with IDEX. Confidential Information includes, but is not limited to, information about\nIDEX’s operations, services, and research and development of IDEX’s operations or services; names and other listings of current or\nprospective customers, vendors, suppliers, and referral sources; proposals to or the terms of any arrangements or agreements with\nany current or prospective customers, vendors, and suppliers, including payment and pricing information; the implementation of\ncustomer-specific projects; the composition or description of future services that will or may be offered by IDEX; marketing\nstrategies; financial and sales information; and technical expertise and know-how developed by IDEX, including the unique manner\nin which IDEX conducts its business. Confidential Information also includes information disclosed to IDEX by any third party\n(including but not limited to current or prospective customers) that IDEX is required to treat as confidential. Confidential\nInformation does not include information readily available to the public, so long as it was not made public by you or anyone\nworking on your behalf. It is not necessary that information, data, or materials be a trade secret in order for such information, data,\nor materials to be Confidential Information.\n“Creative Works” means and includes all works of authorship and other creative works of any kind (including but not limited to\ntrademarks, service marks and other marks, trade dresses, logos, trade names, advertising, promotional materials, product and\nprocess descriptions, manuals, report forms, spreadsheets, diagrams, plans, charts, blueprints, designs, specifications, prototypes,\nmodels, software code, chip designs, and circuitry designs), regardless of form, that directly or indirectly relate to the actual or\nanticipated business, research or development of IDEX, are directed to or capable of fulfilling any need or inquiry of any customer\nor potential customer of IDEX, and/or that are conceived, created, developed, made or produced by Employee in whole or in part\nduring Employee’s IDEX Employment (as defined below) or within six months after Employee’s IDEX Employment terminates,\nwhether conceived, created, developed, made or produced alone or with one or more other persons, whether or not any of such other\npersons are employees of IDEX, whether conceived, created, developed, made or produced during or outside normal work hours,\nand whether conceived, created, developed, made or produced within or outside the premises of IDEX. For the avoidance of doubt,\n“Creative Works” shall not be deemed to include works of authorship and other creative works that Employee conceives, creates,\ndevelops, makes or produces independent of all work that Employee does for IDEX, entirely on Employee’s own time, and without\nusing any equipment, supplies, facilities, intellectual property, or trade secrets or other confidential or proprietary information of\nIDEX and do not relate to the current or anticipated business, research or development of IDEX.\n“IDEX Employment” means employment with Employer and any IDEX Entity.\n“Last Day of Employment” means Employee’s last day of employment with Employer or any IDEX Entity (whichever is later). It\ndoes not encompass movement of Employee’s employment directly from Employer to any IDEX Entity. Such movement shall be\ndeemed as continued employment.\n“Inventions” means and includes all ideas, discoveries and inventions of any kind, whether or not patentable, that directly or\nindirectly relate to the actual or anticipated business, research or development of IDEX, are directed to or capable of fulfilling any\nneed or inquiry of any customer or potential customer of IDEX, and/or that are conceived, created or developed by Employee in\nwhole or in part during Employee’s IDEX Employment or within six months after Employee’s IDEX Employment terminates,\nwhether conceived, created or developed alone or with one or more other persons, whether or not any of such other persons are\nemployees of IDEX, whether conceived, created or developed during or outside normal work hours, and whether conceived, created\nor developed within or outside the IDEX premises. For the avoidance of doubt, “Inventions” shall not be deemed to include ideas,\ndiscoveries and inventions that Employee conceives, creates, develops and reduces to practice independent of all work that\nEmployee does for IDEX, entirely on Employee’s own time, and without using any equipment, supplies, facilities, intellectual\nproperty, or trade secrets or other confidential or proprietary information of IDEX and do not relate to the current or anticipated\nbusiness, research or development of IDEX.\n“Restricted Activities” means (a) any activity for a non-IDEX person or entity that, during the eighteen (18) months prior to\nEmployee’s Last Date of Employment, is (i) competitive with the business of Employer or IDEX Entity and (ii) involves\nEmployee’s performance of the same or substantially similar material responsibilities that Employee performed on behalf of\nEmployer or IDEX Entity; or (b) any other activity involving the unauthorized use or disclosure (or the likelihood of the\nunauthorized use or disclosure) of Confidential Information. For purposes of this definition and of Restricted Geographic Area\nbelow, the term “material” means the expected job duties and responsibilities associated with Employee’s position or that are\nrequested by Employer or IDEX Entity from time to time.\n“Restricted Geographic Area” means (a) any geographic area where Employer or IDEX Entity is doing business during\nEmployee’s employment by Employer or IDEX Entity and where Employee’s use or disclosure of Confidential Information would\nmaterially disadvantage Employer or IDEX Entity regardless of Employee’s physical location; or (b) any geographic area where\nEmployee performed material responsibilities for Employer or IDEX Entity and, if Employee’s material responsibilities are\nconfined to any specific location(s), anywhere within a forty (40) mile radius of such specific location(s) where Employee\nperformed material responsibilities - both during the eighteen (18) months prior to Employee’s Last Date of Employment.\n“Restricted Period” means the period of Employee’s employment with Employer or IDEX Entity and the following periods of\ntime after Employee’s Last Date of Employment: (a) twelve (12) months for Employee’s Non-Competition\nand Non-Solicitation of or Interference with Customers obligations under paragraphs 5(a) and 5(b); and (b) twenty-four (24) months\nfor Employee’s Non-Inducement and Non-Hire obligations under paragraph 5(c) of the Agreement.\n“Third Party Confidential Information” means Confidential Information of an IDEX customer, supplier, or other third party.\n“Third Party Work Product” means Work Product (as defined below) to which IDEX has agreed to grant any right, title, claim,\nlicense or interest to any customer or other third party, but only to the extent of the specific right, title, claim, license or interest\nagreed to be granted to such customer or other third party.\n“Trade Secret” means information defined as a trade secret by the applicable state Trade Secrets Act, the Federal Defend Trade\nSecrets Act of 2016, or other applicable law.\n“Work Product” means and includes (a) all Creative Works, (b) all Inventions, and (c) all other work product of any kind that\nresults from any work that Employee does for IDEX.\n3. Confidential Information and Trade Secrets.\n(a) Employee acknowledges that Employee will be provided and/or have access to Confidential Information and Trade Secrets\nduring Employee’s IDEX Employment.\n(b) Employee shall at all times during and after the termination of Employee’s IDEX Employment safeguard and protect the\nconfidential nature of all Confidential Information and Trade Secrets, and take such precautions with respect thereto as Employer or\nany IDEX Entity may from time to time request.\n(c) Employee shall not at any time during or after the termination of Employee’s IDEX Employment, either individually or on\nbehalf of Employer, an IDEX Entity, or any other person or entity, directly or indirectly:\n) disclose, use, provide, publish, transfer or otherwise make available or disseminate any Confidential Information\nor Trade Secrets, except (A) as reasonably required in connection with the proper performance of Employee’s duties and\nresponsibilities with Employer or IDEX Entity, and (B) in the case of Third Party Confidential Information or Trade\nSecrets, as authorized by the relevant customer, supplier or other third party; or\n(i) sell, market or otherwise attempt to personally profit or benefit in any way from any Confidential Information or\nTrade Secrets.\n(d) The obligation of non-disclosure and non-use of Confidential Information and Trade Secrets shall continue to exist for so long\nas such information remains confidential (excepting improper use and/or disclosure by Employee or permissible disclosures allowed\nunder this Agreement); if, however, a court requires a shorter duration, then the maximum time allowable by law will control, which\nwill not be less than eighteen (18) months following Employee’s Last Day of Employment.\n(e) Immediately upon the request of IDEX, Employee shall deliver to IDEX all Confidential Information, Trade Secrets and\nproperty that IDEX may from time to time request. In addition, at such time as Employee’s IDEX Employment terminates,\nEmployee shall deliver to Employer or IDEX Entity all Confidential Information, Trade Secrets and property in Employee’s\npossession or control (including in hard copy or electronic form) without retaining any copies thereof or extracts therefrom in any\nform, except for such Confidential Information, Trade Secrets or property, if any, that IDEX may specifically authorize Employee to\nretain and then only for the particular purpose or purposes for which Employee is authorized to use such Confidential Information,\nTrade Secrets or property by IDEX.\n(f) In addition to and not in lieu of the above obligations, Employee shall at all times comply with all restrictions on disclosure and\nuse of Third Party Confidential Information or Trade Secrets imposed under (i) any confidentiality, non-disclosure or other\nagreement, commitment or undertaking of IDEX with any customer, supplier or other third party of which Employee has been\nadvised or is aware, and (ii) any confidentiality, non-disclosure or other agreement, commitment or undertaking of Employee with\nany customer, supplier or other third party.\n(g) Employee will not be held criminally or civilly liable under any Federal or state trade secret law for the disclosure of a Trade\nSecret that: (i) is made (A) in confidence to a Federal, state, or local government official, either directly or indirectly, or to an\nattorney, and (B) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or\nother document filed in a lawsuit or other proceeding, if such filing is made under seal. Disclosure of Trade Secrets to attorneys,\nmade under seal, or pursuant to court order is also protected under 18 U.S. Code § 1833 in any retaliation lawsuit based on the\nreporting of a suspected violation of law.\n(h) Nothing in this Agreement is intended to be or will be construed to prevent, impede, or interfere with Employee’s right to\nrespond accurately and fully to any question, inquiry, or request for information regarding Employee or Employee’s employment\nwith Employer or IDEX Entity when required from initiating communications directly with, or responding to any inquiry from, or\nproviding truthful testimony and information to any Federal, state, or other regulatory authority in the course of an investigation or\nproceeding authorized by law and carried out by such agency. Employee is not required to contact Employer or IDEX Entity\nregarding the subject matter of any such communications before Employee engages in such communications. Nothing in this\nAgreement is intended to restrict Employee’s legally-protected right to discuss wages, hours or other working conditions with co-\nworkers, or in any way limit Employee’s rights under the National Labor Relations Act or any whistleblower act.\n4. Work Product.\n(a) Employee acknowledges that continuous improvement and innovation are key business strategies and objectives of IDEX,\nand, during Employee’s IDEX Employment, Employee is expected to conceive, create, develop, make and produce Work\nProduct.\n(b) Employee shall fully and promptly disclose to Employer or IDEX Entity all Work Product.\n(© As between Employee and IDEX, all Work Product shall be deemed to be a work made for hire and the sole and\nexclusive property of IDEX.\n(d) Employee hereby assigns to IDEX all of Employee’s current and future right, title, claim and interest in and to all Work\nProduct, including but not limited to all United States and foreign patent rights and copyrights.\n(e) Employee shall not at any time during or after the termination of Employee’s IDEX Employment, either individually or\non behalf of any other person or entity, directly or indirectly: (i) use any Work Product except (A) as reasonably required in\nconnection with the proper performance of Employee’s duties and responsibilities with Employer or IDEX Entity, and (B) in the\ncase of Third Party Work Product, as authorized by the relevant customer or other third party; or (ii) sell, market, or otherwise\nattempt to personally profit or benefit in any way from any Work Product.\n5. Restrictive Covenants.\n(@) Non-Competition. Employee agrees that during the Restricted Period and in the Restricted Geographic Area, Employee will\nnot engage in any Restricted Activities; provided that Employee may invest Employee’s funds in securities of a person engaged in a\nbusiness that is directly competitive with IDEX if the securities of such a person are listed for trading on a registered securities\nexchange or actively traded in an over-the-counter market and Employee’s holdings represent less than one percent (1%) of the total\nnumber of shares or principal amount of the securities of such a person outstanding.\n(b) Non-Solicitation of or Interference with Customers. Employee acknowledges that the relationships that Employer and any\nIDEX Entity has with their customers and employees, the goodwill related to such relationships, and the business knowledge,\ntraining, and skills of their employees have been developed with significant investments of time, effort, and expense on the part of\nIDEX and are valuable assets of IDEX. During the Restricted Period, for the purpose of engaging in Restricted Activities,\nEmployee shall not, directly or indirectly: (i) solicit business from or perform services for, or for the benefit of, any established\ncustomer or established account of Employer or IDEX Entity with which Employee had contact, participated in the contact, or about\nwhich Employee had knowledge of Confidential Information by reason of Employee’s relationship with Employer or IDEX Entity\nwithin the eighteen (18) month period prior to Employee’s Last Date of Employment; (ii) solicit business from or perform services\nfor, or for the benefit of, any customer or account that was pursued by Employer or IDEX Entity and with which Employee had\ncontact, participated in the contact, or about which Employee had knowledge of by reason of Employee’s access to or use of\nConfidential Information within the eighteen (18) month period prior to Employee’s Last Date of Employment; or (iii) influence,\nseek to influence, or contact for the purpose of influencing or seeking to influence, any person or entity to limit or cease doing\nbusiness with Employer or IDEX Entity.\n(c) Non-Inducement and Non-Hire. During the Restricted Period, Employee shall not, directly or indirectly, solicit, hire, attempt to\nsolicit or hire, or participate in any attempt to solicit or hire for any non-IDEX entity, any person who at any time during the\neighteen (18) months immediately preceding the date of such solicitation or hire is or was an officer, employee or consultant of\nEmployer or IDEX Entity occupying a position uniquely essential to the management, organization, or servicing of the business of\nEmployer or IDEX Entity to resign from his or her employment, or whom Employee was aware was being actively recruited by\nIDEX, and with whom Employee had contact or participated in contact during Employee’s employment with Employer or IDEX\nEntity.\n(d) Covenants are Reasonable. The parties understand and agree that the covenants in this paragraph are necessary and essential to\nprotect IDEX’s proprietary and confidential business information; that the area, duration and scope of the covenants in this\nparagraph are reasonable and necessary to protect IDEX; that they do not unduly oppress or restrict Employee’s ability to earn a\nlivelihood in Employee’s chosen profession; that they are not an undue restraint on Employee’s trade or any of the public interests\nthat may be involved; that good and valuable consideration exists for Employee’s agreement to be bound by such covenants; and\nthat Employer or IDEX Entity has a legitimate business purpose in requiring Employee to abide by the covenants set forth in this\nparagraph.\n6. Further Assurances.\nEmployee shall comply with all instructions and directions of Employer and any IDEX Entity and provide all assistance and\ncooperation, provide and make available all records, files and information, execute and deliver all assignments, affidavits,\ncertifications and other documents and instruments, and take and do all other actions and things that Employer or any IDEX Entity\nmay at any time and from time to time properly request to protect and preserve Confidential Information, evidence, secure, perfect\nand protect its rights, title, claims and interests in Work Product, seek and obtain United States and/or foreign patents with respect to\nWork Product, comply with and carry out agreements, commitments and undertakings made by IDEX to any customer, supplier or\nother third party relating to Third Party Confidential Information, Trade Secrets and/or Third Party Work Product, or carry out and\nimplement the provisions of this Agreement.\nThe IDEX Entity that requests Employee to take or perform any action or thing pursuant to this paragraph shall reimburse\nEmployee for Employee’s reasonable and necessary out-of-pocket costs and expenses in taking or performing such action or things;\nprovided, however, that (i) Employee shall advise such IDEX Entity prior to incurring any out-of-pocket cost and expense in excess\nof $50.00 so that such IDEX Entity can determine whether such out-of-pocket expense is reasonable and necessary in advance of it\nbeing incurred and advise Employee whether such IDEX Entity wishes to withdraw or modify its request for Employee to take or\nperform such action or thing, (ii) Employee shall not be entitled to be reimbursed for any cost or expense that is attributable to or\narises out of any failure of Employee to comply with the provisions of this Agreement, and (iii) the obligation to reimburse\nEmployee for out-of-pocket costs and expenses shall not apply in connection with a lawsuit or other legal action to enforce this\nAgreement against Employee.\n7. Breach and Equitable Remedies.\nEmployee acknowledges that the restrictions contained in this Agreement, including in paragraphs 2, 3, 4 or 5 above, are necessary\nto protect the legitimate interests of IDEX and that any violation of this Agreement would result in irreparable harm and injury to\nEmployer or IDEX Entity. In the event of a breach or threatened breach by Employee of the provisions of this Agreement,\nEmployee agrees that Employer or IDEX Entity will be entitled to an injunction, without first posting bond and without notice,\nrestraining Employee from such breach or threatened breach and to any other legal or equitable remedies available to Employer or\nIDEX Entity. Employer or IDEX Entity will also be entitled to all costs and expenses (including reasonable attorneys’ fees) from\nEmployee should Employee breach this Agreement.\n8. Restrictive Agreements and Restricted Information.\n(a) Except as disclosed on the Schedule of Restrictive Agreements attached to this Agreement, Employee has not made and is not\na party or subject to any confidentiality, non-disclosure, inventions, employment or other agreement, commitment or undertaking\nwith a prior employer or any other person or entity that could limit or restrict Employee in the performance of Employee’s duties\nand responsibilities with Employer or IDEX Entity.\n(b) Employee shall not at any time during Employee’s IDEX Employment disclose, provide or make available to Employer, IDEX\nEntity or any customer, supplier or other third party with whom IDEX has a relationship any information, data or materials that\nEmployee has obtained from a prior employer, customer, supplier or other third party that may be subject to any restriction on\ndisclosure or use (“Restricted Information”) unless Employee is clearly authorized to disclose, provide or make available such\nRestricted Information to the person or persons to whom Employee is disclosing, providing or making available such Restricted\nInformation for the purpose or purposes for which such Restricted Information is being disclosed.\n9. Employment at Will.\nUnless and except to the extent Employer or IDEX Entity may expressly agree otherwise in a separate written employment\nagreement with Employee, Employee’s IDEX Employment is and shall at all times be “at will”, and nothing in this Agreement is\nintended to change Employee’s status as an “at will” employee or create or imply any right or expectation in Employee of\ncontinuing IDEX Employment.\n10. Reasonableness, Severability and Reformation.\nEmployee acknowledges that the provisions of this Agreement and the obligations imposed on Employee under this Agreement are\nfair and reasonable, not unduly burdensome or restrictive on Employee, and appropriate and necessary for the protection of the\nproperty and legitimate business interests of Employer or other IDEX Entity.\nThe provisions of this Agreement are severable. Employee agrees that if any particular paragraphs, subparagraphs, subparts,\nphrases, words, or other portions of this Agreement are determined by an appropriate court to be invalid or unenforceable as written,\nthey shall be modified as necessary to be valid or enforceable, and such modification shall not affect the remaining provisions of\nthis Agreement; or, if they cannot be modified to be made valid or enforceable, then they shall be severed from this Agreement, and\nall remaining non-eliminated paragraphs, subparagraphs, subparts, phrases, words, or other portions of this Agreement shall be\nenforced.\n11. Miscellaneous.\n(@) This Agreement shall be governed by, interpreted, and enforced in accordance with the internal laws of the State of\nDelaware of the United States of America, without regard to any principles of conflict of laws. Any action regarding this\nAgreement or Employee’s employment with or separation from Employer or other IDEX Entity must be brought and\nprosecuted in the state or federal courts where the principal place of business for Employer or other IDEX Entity is located,\nand the parties will not dispute that personal jurisdiction or venue is appropriate and convenient in those courts.\n(b) This Agreement sets forth the entire agreement and understanding of the parties relating to its subject matter, and no\nrepresentation, commitment or undertaking has been made to Employee in connection with, or to induce Employee to enter into,\nthis Agreement other than as set forth herein.\n(© The rights and remedies of IDEX under this Agreement, and the liabilities and obligations of Employee under this\nAgreement, are not exclusive, but are in addition to any and all rights and remedies that IDEX may have, and any and all liabilities\nand obligations that Employee may have, under any law, statute, rule or regulation, any IDEX corporate policy, or, subject only to\nparagraph 11(b) above, any other contract or agreement.\n(d) This Agreement may be amended, modified, or terminated, and compliance with the provisions of this Agreement may\nbe waived only in writing signed by Employee and a duly authorized officer of Employer. The waiver of or failure to enforce the\nprovisions of this Agreement or other similar agreement that IDEX may have with Employee or any other employee shall not\nconstitute a waiver of or limit or restrict in any way the right of Employer or IDEX Entity to enforce the provisions of this\nAgreement against Employee. The rights and remedies of IDEX under this Agreement shall be in addition to, and not in lieu of, any\nrights and remedies that may be available to it independent of this Agreement.\n(e) This Agreement shall continue in full force and effect notwithstanding any changes in the terms and conditions of the\nEmployee’s employment with Employer or IDEX Entity, including, without limitation, any change in title, position, duties, or\nresponsibility.\n® Employee acknowledges that (i) the signing of this Agreement is a condition to Employee being employed by Employer,\n(ii) Employee would have had no right or entitlement to IDEX Employment by Employer or other IDEX Entity if this Agreement\nhad not been signed by Employee, (iii) Employee was given the right to consult with an attorney prior to signing this Agreement,\n(iv) if Employee did not consult with an attorney prior to signing this\nAgreement, it was a voluntary choice on the part of Employee not to so consult, and (v) Employee is voluntarily entering into this\nAgreement.\n) The termination of Employee’s IDEX Employment, regardless of the nature of or reason for the termination, shall not\nterminate or relieve Employee from complying with the provisions of this Agreement.\n(h) Employee agrees that in the event Employee is offered to enter into an employment relationship with a third party at any\ntime during the existence of this Agreement, including in any such other period in which post-employment obligations of this\nAgreement apply, the business of which is in any way competitive with Employer or other IDEX Entity, Employee shall\nimmediately advise said other third party of the existence of this Agreement and shall provide said person or entity with a copy of\nthis Agreement.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement freely and voluntarily with the intention of being\nlegally bound by it.\nEMPLOYEE IDEX CORPORATION\nBy:\nSigned: Name:\nName: Title:\nDated: Dated:\n \nEmployee Name:\nSchedule of Restrictive Agreements\n(If none, insert “NONE”)	EX-10.34 15 iex-20171231xex1034.htn EXHIBIT 10.34\nEX-10.34\nCONFIDENTIAL INFORMATION, WORK PRODUCT\nAND RESTRICTIVE COVENANT AGREEMENT\nTHE UNDERSIGNED ("Employee") has been offered employment with IDEX Corporation or one of its Groups, Divisions or\nBusiness Units (IDEX Corporation and its former, current and future Groups, Divisions and Business Units are referred to as\n"IDEX"; any entity that is part of IDEX and at some point employs Employee is referred to as an "IDEX Entity"; and the particular\nIDEX Entity that employs Employee as of the date of this Agreement is referred to as "Employer") and desires to become an\nemployee of Employer or IDEX Entity.\nWHEREAS, it is a condition of employment that Employee enter into this Confidential Information, Work Product and Restrictive\nCovenant Agreement (the "Agreement"); and\nWHEREAS, Employee acknowledges that Employee received prior notice that Employee's execution of this Agreement is a\nrequired condition of Employee's at-will employment with Employer or other IDEX Entity.\nIN CONSIDERATION OF employment by Employer, access to and use of Confidential Information and Trade Secrets (both as\ndefined below), and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,\nEmployee agrees as follows:\n1.\nScope of Agreement.\nThis Agreement shall apply in connection with all of Employee's activities on behalf of or with respect to Employer and/or any\nIDEX Entity.\nThis Agreement shall continue to apply and remain in full force and effect if Employee is transferred to or otherwise becomes an\nemployee of an IDEX Entity other than Employee's initial Employer. If Employee is transferred to or otherwise becomes\nan\nemployee of an IDEX Entity other than Employee's initial Employer, such other entity shall thereafter be deemed to be Employer\nfor all purposes of this Agreement.\nEmployer and each IDEX Entity and their respective successors and assigns shall be beneficiaries of this Agreement and shall be\nentitled\nto\nenforce\nthis\nAgreement\nagainst\nEmployee.\nIn\nthe\nevent\nthat\nEmployee's\nemployment\nmoves\nfrom\nEmployer\nto\nany\nIDEX\nEntity, where allowed by applicable law, this Agreement shall be deemed automatically assigned to the new IDEX Entity. The\nparties otherwise agree that Employer and each IDEX Entity may assign this Agreement without notice to, or consent from,\nEmployee.\n2.\nDefinitions.\n"Confidential Information" means (a) competitively sensitive information, (b) of importance to IDEX, and (c) that becomes\nknown to you through your employment with IDEX. Confidential Information includes, but is not limited to, information about\nIDEX's operations, services, and research and development of IDEX's operations or services; names and other listings of current or\nprospective customers, vendors, suppliers, and referral sources; proposals to or the terms of any arrangements or agreements with\nany current or prospective customers, vendors, and suppliers, including payment and pricing information; the implementation of\ncustomer-specific\nprojects;\nthe\ncomposition\nor\ndescription\nof\nfuture\nservices\nthat\nwill\nor\nmay\nbe\noffered\nby\nIDEX;\nmarketing\nstrategies; financial and sales information; and technical expertise and know-how developed by IDEX, including the unique manner\nin\nwhich IDEX conducts its business. Confidential Information also includes information disclosed to IDEX by any third party\n(including but not limited to current or prospective customers) that IDEX is required to treat as confidential. Confidential\nInformation does not include information readily available to the public, so long as it was not made public by you or anyone\nworking on your behalf. It is not necessary that information, data, or materials be a trade secret in order for such information, data,\nor materials to be Confidential Information.\n"Creative Works" means and includes all works of authorship and other creative works of any kind (including but not limited to\ntrademarks, service marks and other marks, trade dresses, logos, trade names, advertising, promotional materials, product and\nprocess descriptions, manuals, report forms, spreadsheets, diagrams, plans, charts, blueprints, designs, specifications, prototypes,\nmodels,\nsoftware\ncode,\nchip\ndesigns,\nand\ncircuitry\ndesigns),\nregardless\nof\nform,\nthat\ndirectly\nor\nindirectly\nrelate\nto\nthe\nactual\nor\nanticipated business, research or development of IDEX, are directed to or capable of fulfilling any need or inquiry of any customer\nor potential customer of IDEX, and/or that are conceived, created, developed, made or produced by Employee in whole or in\npart\nduring Employee's IDEX Employment (as defined below) or within six months after Employee's IDEX Employment terminates,\nwhether conceived, created, developed, made or produced alone or with one or more other persons, whether or not any of such other\npersons are employees of IDEX, whether conceived, created, developed, made or produced during or outside normal work hours,\nand whether conceived, created, developed, made or produced within or outside the premises of IDEX. For the avoidance of doubt,\n"Creative Works" shall not be deemed to include works of authorship and other creative works that Employee conceives, creates,\ndevelops, makes or produces independent of all work that Employee does for IDEX, entirely on Employee's own time, and without\nusing any equipment, supplies, facilities, intellectual property, or trade secrets or other confidential or proprietary information of\nIDEX and do not relate to the current or anticipated business, research or development of IDEX\n"IDEX Employment" means employment with Employer and any IDEX Entity.\n"Last Day of Employment" means Employee's last day of employment with Employer or any IDEX Entity (whichever is later).\nIt\ndoes not encompass movement of Employee's employment directly from Employer to any IDEX Entity. Such movement shall be\ndeemed as continued employment.\n"Inventions" means and includes all ideas, discoveries and inventions of any kind, whether or not patentable, that directly or\nindirectly relate to the actual or anticipated business, research or development of IDEX, are directed to or capable of fulfilling any\nneed or inquiry of any customer or potential customer of IDEX, and/or that are conceived, created or developed by Employee in\nwhole or in part during Employee's IDEX Employment or within six months after Employee's IDEX Employment terminates,\nwhether\nconceived,\ncreated\nor\ndeveloped\nalone\nor\nwith\none\nor\nmore\nother\npersons,\nwhether\nor\nnot\nany\nof\nsuch\nother\npersons\nare\nemployees of IDEX, whether conceived, created or developed during or outside normal work hours, and whether conceived, created\nor developed within or outside the IDEX premises. For the avoidance of doubt, "Inventions" shall not be deemed to include ideas,\ndiscoveries and inventions that Employee conceives, creates, develops and reduces to practice independent of all work that\nEmployee does for IDEX, entirely on Employee's own time, and without using any equipment, supplies, facilities, intellectual\nproperty, or trade secrets or other confidential or proprietary information of IDEX and do not relate to the current or anticipated\nbusiness, research or development of IDEX.\n"Restricted Activities" means (a) any activity for a non-IDEX person or entity that, during the eighteen (18) months prior to\nEmployee's Last Date of Employment, is (i) competitive with the business of Employer or IDEX Entity and (ii) involves\nEmployee's performance of the same or substantially similar material responsibilities that Employee performed on behalf of\nEmployer\nor\nIDEX\nEntity;\nor\n(b)\nany\nother\nactivity\ninvolving\nthe\nunauthorized\nuse\nor\ndisclosure\n(or\nthe\nlikelihood\nof\nthe\nunauthorized use or disclosure) of Confidential Information. For purposes of this definition and of Restricted Geographic Area\nbelow, the term "material" means the expected job duties and responsibilities associated with Employee's position or that are\nrequested by Employer or IDEX Entity from time to time.\n"Restricted Geographic Area" means (a) any geographic area where Employer or IDEX Entity is doing business during\nEmployee's employment by Employer or IDEX Entity and where Employee's use or disclosure of Confidential Information would\nmaterially disadvantage Employer or IDEX Entity regardless of Employee's physical location; or (b) any geographic area where\nEmployee performed material responsibilities for Employer or IDEX Entity and, if Employee's material responsibilities are\nconfined to any specific location(s), anywhere within a forty (40) mile radius of such specific location(s) where Employee\nperformed material responsibilities both during the eighteen (18) months prior to Employee's Last Date of Employment.\n"Restricted Period" means the period of Employee's employment with Employer or IDEX Entity and the following periods of\ntime after Employee's Last Date of Employment: (a) twelve (12) months for Employee's Non-Competition\nand Non-Solicitation of or Interference with Customers obligations under paragraphs 5(a) and 5(b); and (b) twenty-four (24) months\nfor Employee's Non-Inducement and Non-Hire obligations under paragraph 5(c) of the Agreement.\n"Third Party Confidential Information" means Confidential Information of an IDEX customer, supplier, or other third party.\n"Third Party Work Product" means Work Product (as defined below) to which IDEX has agreed to grant any right, title, claim,\nlicense or interest to any customer or other third party, but only to the extent of the specific right, title, claim, license or interest\nagreed to be granted to such customer or other third party.\n"Trade Secret" means information defined as a trade secret by the applicable state Trade Secrets Act, the Federal Defend Trade\nSecrets Act of 2016, or other applicable law.\n"Work Product" means and includes (a) all Creative Works, (b) all Inventions, and (c) all other work product of any kind that\nresults from any work that Employee does for IDEX.\n3.\nConfidential Information and Trade Secrets.\n(a) Employee acknowledges that Employee will be provided and/or have access to Confidential Information and Trade Secrets\nduring Employee's IDEX Employment.\n(b) Employee shall at all times during and after the termination of Employee's IDEX Employment safeguard and protect the\nconfidential nature of all Confidential Information and Trade Secrets, and take such precautions with respect thereto as Employer or\nany IDEX Entity may from time to time request.\n(c) Employee shall not at any time during or after the termination of Employee's IDEX Employment, either individually or on\nbehalf of Employer, an IDEX Entity, or any other person or entity, directly or indirectly:\n(i)\ndisclose, use, provide, publish, transfer or otherwise make available or disseminate any Confidential Information\nor Trade Secrets, except (A) as reasonably required in connection with the proper performance of Employee's duties and\nresponsibilities\nwith\nEmployer\nor\nIDEX\nEntity,\nand\n(B)\nin\nthe\ncase\nof\nThird\nParty\nConfidential\nInformation\nor\nTrade\nSecrets, as authorized by the relevant customer, supplier or other third party; or\n(ii)\nsell, market or otherwise attempt to personally profit or benefit in any way from any Confidential Information or\nTrade Secrets.\n(d) The obligation of non-disclosure and non-use of Confidential Information and Trade Secrets shall continue to exist for so long\nas\nsuch information remains confidential (excepting improper use and/or disclosure by Employee or permissible disclosures allowed\nunder this Agreement); if, however, a court requires a shorter duration, then the maximum time allowable by law will control, which\nwill not be less than eighteen (18) months following Employee's Last Day of Employment.\n(e) Immediately upon the request of IDEX, Employee shall deliver to IDEX all Confidential Information, Trade Secrets and\nproperty that IDEX may from time to time request. In addition, at such time as Employee's IDEX Employment terminates,\nEmployee shall deliver to Employer or IDEX Entity all Confidential Information, Trade Secrets and property in Employee's\npossession or control (including in hard copy or electronic form) without retaining any copies thereof or extracts therefrom in any\nform, except for such Confidential Information, Trade Secrets or property, if any, that IDEX may specifically authorize Employee to\nretain and then only for the particular purpose or purposes for which Employee is authorized to use such Confidential Information,\nTrade Secrets or property by IDEX.\n(f) In addition to and not in lieu of the above obligations, Employee shall at all times comply with all restrictions on disclosure and\nuse of Third Party Confidential Information or Trade Secrets imposed under (i) any confidentiality, non-disclosure or other\nagreement, commitment or undertaking of IDEX with any customer, supplier or other third party of which Employee has been\nadvised or is aware, and (ii) any confidentiality, non-disclosure or other agreement, commitment or undertaking of Employee with\nany customer, supplier or other third party.\n(g) Employee will not be held criminally or civilly liable under any Federal or state trade secret law for the disclosure of a Trade\nSecret that: (i) is made (A) in confidence to a Federal, state, or local government official, either directly or indirectly, or to an\nattorney, and (B) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or\nother document filed in a lawsuit or other proceeding, if such filing is made under seal. Disclosure of Trade Secrets\nto\nattorneys,\nmade under seal, or pursuant to court order is also protected under 18 U.S. Code S 1833 in any retaliation lawsuit based on the\nreporting of a suspected violation of law.\n(h) Nothing in this Agreement is intended to be or will be construed to prevent, impede, or interfere with Employee's right to\nrespond accurately and fully to any question, inquiry, or request for information regarding Employee or Employee's employment\nwith Employer or IDEX Entity when required from initiating communications directly with, or responding to any inquiry from,\nor\nproviding truthful testimony and information to any Federal, state, or other regulatory authority in the course of an investigation or\nproceeding authorized by law and carried out by such agency. Employee is not required to contact Employer or IDEX Entity\nregarding the subject matter of any such communications before Employee engages in such communications. Nothing in this\nAgreement is intended to restrict Employee's legally-protected right to discuss wages, hours or other working conditions with co-\nworkers, or in any way limit Employee's rights under the National Labor Relations Act or any whistleblower act.\n4.\nWork Product.\n(a) Employee acknowledges that continuous improvement and innovation are key business strategies and objectives of IDEX,\nand, during Employee's IDEX Employment, Employee is expected to conceive, create, develop, make and produce Work\nProduct.\n(b)\nEmployee shall fully and promptly disclose to Employer or IDEX Entity all Work Product.\n(c)\nAs between Employee and IDEX, all Work Product shall be deemed to be a work made for hire and the sole and\nexclusive property of IDEX.\n(d)\nEmployee hereby assigns to IDEX all of Employee's current and future right, title, claim and interest in and to all Work\nProduct, including but not limited to all United States and foreign patent rights and copyrights.\n(e)\nEmployee shall not at any time during or after the termination of Employee's IDEX Employment, either individually or\non behalf of any other person or entity, directly or indirectly: (i) use any Work Product except (A) as reasonably required in\nconnection with the proper performance of Employee's duties and responsibilities with Employer or IDEX Entity, and (B) in the\ncase of Third Party Work Product, as authorized by the relevant customer or other third party; or (ii) sell, market, or otherwise\nattempt to personally profit or benefit in any way from any Work Product.\n5.\nRestrictive Covenants.\n(a) Non-Competition. Employee agrees that during the Restricted Period and in the Restricted Geographic Area, Employee will\nnot engage in any Restricted Activities; provided that Employee may invest Employee's funds in securities of a person engaged in a\nbusiness that is directly competitive with IDEX if the securities of such a person are listed for trading on a registered securities\nexchange or actively traded in an over-the-counter market and Employee's holdings represent less than one percent (1%) of the total\nnumber of shares or principal amount of the securities of such a person outstanding.\n(b)\nNon-Solicitation of or Interference with Customers. Employee acknowledges that the relationships that Employer and any\nIDEX Entity has with their customers and employees, the goodwill related to such relationships, and the business knowledge,\ntraining,\nand\nskills\nof\ntheir\nemployees\nhave\nbeen\ndeveloped\nwith\nsignificant\ninvestments\nof\ntime,\neffort,\nand\nexpense\non\nthe\npart\nof\nIDEX and are valuable assets of IDEX. During the Restricted Period, for the purpose of engaging in Restricted Activities,\nEmployee shall not, directly or indirectly: (i) solicit business from or perform services for, or for the benefit of, any established\ncustomer or established account of Employer or IDEX Entity with which Employee had contact, participated in the contact, or about\nwhich Employee had knowledge of Confidential Information by reason of Employee's relationship with Employer or IDEX Entity\nwithin the eighteen (18) month period prior to Employee's Last Date of Employment; (ii) solicit business from or perform services\nfor, or for the benefit of, any customer or account that was pursued by Employer or IDEX Entity and with which Employee\nhad\ncontact, participated in the contact, or about which Employee had knowledge of by reason of Employee's access to or use of\nConfidential\nInformation\nwithin\nthe\neighteen\n(18)\nmonth\nperiod\nprior\nto\nEmployee's\nLast\nDate\nof\nEmployment;\nor\n(iii)\ninfluence,\nseek to influence, or contact for the purpose of influencing or seeking to influence, any person or entity to limit or cease doing\nbusiness with Employer or IDEX Entity.\n(c) Non-Inducement and Non-Hire. During the Restricted Period, Employee shall not, directly or indirectly, solicit, hire, attempt to\nsolicit or hire, or participate in any attempt to solicit or hire for any non-IDEX entity, any person who at any time during the\neighteen (18) months immediately preceding the date of such solicitation or hire is or was an officer, employee or consultant\nof\nEmployer\nor\nIDEX\nEntity\noccupying\na\nposition\nuniquely\nessential\nto\nthe\nmanagement,\norganization,\nor\nservicing\nof\nthe\nbusiness\nof\nEmployer or IDEX Entity to resign from his or her employment, or whom Employee was aware was being actively recruited by\nIDEX, and with whom Employee had contact or participated in contact during Employee's employment with Employer or IDEX\nEntity.\n(d) Covenants are Reasonable. The parties understand and agree that the covenants in this paragraph are necessary and essential to\nprotect IDEX's proprietary and confidential business information; that the area, duration and scope of the covenants in this\nparagraph are reasonable and necessary to protect IDEX; that they do not unduly oppress or restrict Employee's ability to earn a\nlivelihood in Employee's chosen profession; that they are not an undue restraint on Employee's trade or any of the public interests\nthat may be involved; that good and valuable consideration exists for Employee's agreement to be bound by such covenants; and\nthat Employer or IDEX Entity has a legitimate business purpose in requiring Employee to abide by the covenants set forth in this\nparagraph.\n6.\nFurther Assurances.\nEmployee shall comply with all instructions and directions of Employer and any IDEX Entity and provide all assistance and\ncooperation, provide and make available all records, files and information, execute and deliver all assignments, affidavits,\ncertifications and other documents and instruments, and take and do all other actions and things that Employer or any IDEX Entity\nmay at any time and from time to time properly request to protect and preserve Confidential Information, evidence, secure, perfect\nand protect its rights, title, claims and interests in Work Product, seek and obtain United States and/or foreign patents with respect to\nWork Product, comply with and carry out agreements, commitments and undertakings made by IDEX to any customer, supplier\nor\nother third party relating to Third Party Confidential Information, Trade Secrets and/or Third Party Work Product, or carry out and\nimplement the provisions of this Agreement.\nThe IDEX Entity that requests Employee to take or perform any action or thing pursuant to this paragraph shall reimburse\nEmployee for Employee's reasonable and necessary out-of-pocket costs and expenses in taking or performing such action or things;\nprovided, however, that (i) Employee shall advise such IDEX Entity prior to incurring any out-of-pocket cost and expense in excess\nof $50.00 so that such IDEX Entity can determine whether such out-of-pocket expense is reasonable and necessary in advance of it\nbeing incurred and advise Employee whether such IDEX Entity wishes to withdraw or modify its request for Employee to take or\nperform such action or thing, (ii) Employee shall not be entitled to be reimbursed for any cost or expense that is attributable to or\narises out of any failure of Employee to comply with the provisions of this Agreement, and (iii) the obligation to reimburse\nEmployee for out-of-pocket costs and expenses shall not apply in connection with a lawsuit or other legal action to enforce this\nAgreement against Employee.\n7.\nBreach and Equitable Remedies.\nEmployee acknowledges that the restrictions contained in this Agreement, including in paragraphs 2, 3, 4 or 5 above, are necessary\nto protect the legitimate interests of IDEX and that any violation of this Agreement would result in irreparable harm and injury to\nEmployer or IDEX Entity. In the event of a breach or threatened breach by Employee of the provisions of this Agreement,\nEmployee agrees that Employer or IDEX Entity will be entitled to an injunction, without first posting bond and without notice,\nrestraining Employee from such breach or threatened breach and to any other legal or equitable remedies available to Employer or\nIDEX Entity. Employer or IDEX Entity will also be entitled to all costs and expenses (including reasonable attorneys' fees) from\nEmployee should Employee breach this Agreement.\n8.\nRestrictive Agreements and Restricted Information.\n(a)\nExcept as disclosed on the Schedule of Restrictive Agreements attached to this Agreement, Employee has not made and is not\na party or subject to any confidentiality, non-disclosure, inventions, employment or other agreement, commitment or undertaking\nwith a prior employer or any other person or entity that could limit or restrict Employee in the performance of Employee's duties\nand responsibilities with Employer or IDEX Entity.\n(b) Employee shall not at any time during Employee's IDEX Employment disclose, provide or make available to Employer, IDEX\nEntity or any customer, supplier or other third party with whom IDEX has a relationship any information, data or materials that\nEmployee has obtained from a prior employer, customer, supplier or other third party that may be subject to any restriction on\ndisclosure\nor\nuse\n("Restricted\nInformation")\nunless\nEmployee\nis\nclearly\nauthorized\nto\ndisclose,\nprovide\nor\nmake\navailable\nsuch\nRestricted Information to the person or persons to whom Employee is disclosing, providing or making available such Restricted\nInformation for the purpose or purposes for which such Restricted Information is being disclosed.\n9.\nEmployment at Will.\nUnless and except to the extent Employer or IDEX Entity may expressly agree otherwise in a separate written employment\nagreement with Employee, Employee's IDEX Employment is and shall at all times be "at will", and nothing in this Agreement is\nintended to change Employee's status as an "at will" employee or create or imply any right or expectation in Employee of\ncontinuing IDEX Employment.\n10.\nReasonableness, Severability. and Reformation.\nEmployee acknowledges that the provisions of this Agreement and the obligations imposed on Employee under this Agreement are\nfair and reasonable, not unduly burdensome or restrictive on Employee, and appropriate and necessary for the protection of the\nproperty and legitimate business interests of Employer or other IDEX Entity.\nThe provisions of this Agreement are severable. Employee agrees that if any particular paragraphs, subparagraphs, subparts,\nphrases, words, or other portions of this Agreement are determined by an appropriate court to be invalid or unenforceable as written,\nthey shall be modified as necessary to be valid or enforceable, and such modification shall not affect the remaining provisions\nof\nthis Agreement; or, if they cannot be modified to be made valid or enforceable, then they shall be severed from this Agreement, and\nall remaining non-eliminated paragraphs, subparagraphs, subparts, phrases, words, or other portions of this Agreement shall be\nenforced.\n11.\nMiscellaneous.\n(a) This Agreement shall be governed by, interpreted, and enforced in accordance with the internal laws of the State of\nDelaware of the United States of America, without regard to any principles of conflict of laws. Any action regarding this\nAgreement or Employee's employment with or separation from Employer or other IDEX Entity must be brought and\nprosecuted in the state or federal courts where the principal place of business for Employer or other IDEX Entity is located,\nand the parties will not dispute that personal jurisdiction or venue is appropriate and convenient in those courts.\n(b)\nThis Agreement sets forth the entire agreement and understanding of the parties relating to its subject matter, and no\nrepresentation, commitment or undertaking has been made to Employee in connection with, or to induce Employee to enter into,\nthis Agreement other than as set forth herein.\n(c)\nThe rights and remedies of IDEX under this Agreement, and the liabilities and obligations of Employee under this\nAgreement, are not exclusive, but are in addition to any and all rights and remedies that IDEX may have, and any and all liabilities\nand\nobligations\nthat\nEmployee\nmay\nhave,\nunder\nany\nlaw,\nstatute,\nrule\nor\nregulation,\nany\nIDEX\ncorporate\npolicy,\nor,\nsubject\nonly\nto\nparagraph 11(b) above, any other contract or agreement.\n(d) This Agreement may be amended, modified, or terminated and compliance with the provisions of this Agreement may\nbe\nwaived only in writing signed by Employee and a duly authorized officer of Employer. The waiver of or failure to enforce the\nprovisions of this Agreement or other similar agreement that IDEX may have with Employee or any other employee shall not\nconstitute a waiver of or limit or restrict in any way the right of Employer or IDEX Entity to enforce the provisions of this\nAgreement against Employee. The rights and remedies of IDEX under this Agreement shall be in addition to, and not in lieu of, any\nrights and remedies that may be available to it independent of this Agreement.\n(e)\nThis Agreement shall continue in full force and effect notwithstanding any changes in the terms and conditions of the\nEmployee's employment with Employer or IDEX Entity, including, without limitation, any change in title, position, duties, or\nresponsibility.\n(f)\nEmployee acknowledges that (i) the signing of this Agreement is a condition to Employee being employed by Employer,\n(ii) Employee would have had no right or entitlement to IDEX Employment by Employer or other IDEX Entity if this Agreement\nhad not been signed by Employee, (iii) Employee was given the right to consult with an attorney prior to signing this Agreement,\n(iv) if Employee did not consult with an attorney prior to signing this\nAgreement, it was a voluntary choice on the part of Employee not to SO consult, and (v) Employee is voluntarily entering into this\nAgreement.\n(g)\nThe termination of Employee's IDEX Employment, regardless of the nature of or reason for the termination, shall not\nterminate or relieve Employee from complying with the provisions of this Agreement.\n(h)\nEmployee agrees that in the event Employee is offered to enter into an employment relationship with a third party at any\ntime during the existence of this Agreement, including in any such other period in which post-employment obligations of this\nAgreement apply, the business of which is in any way competitive with Employer or other IDEX Entity, Employee\nshall\nimmediately advise said other third party of the existence of this Agreement and shall provide said person or entity with a copy of\nthis Agreement.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement freely and voluntarily with the intention of being\nlegally bound by it.\nEMPLOYEE\nIDEX CORPORATION\nBy:\nSigned:\nName:\nName:\nTitle:\nDated:\nDated:\nEmployee Name:\nSchedule of Restrictive Agreements\n(If none, insert "NONE")	EX-10 .34 15 iex-20171231xex1034.htm EXHIBIT 10.34\nEX-10.34\nCONFIDENTIAL INFORMATION, WORK PRODUCT\nAND RESTRICTIVE COVENANT AGREEMENT\nTHE UNDERSIGNED (“Employee”) has been offered employment with IDEX Corporation or one of its Groups, Divisions or\nBusiness Units (IDEX Corporation and its former, current and future Groups, Divisions and Business Units are referred to as\n“IDEX”; any entity that is part of IDEX and at some point employs Employee is referred to as an “IDEX Entity”; and the particular\nIDEX Entity that employs Employee as of the date of this Agreement is referred to as “Employer”) and desires to become an\nemployee of Employer or IDEX Entity.\nWHEREAS, it is a condition of employment that Employee enter into this Confidential Information, Work Product and Restrictive\nCovenant Agreement (the “Agreement”); and\nWHEREAS, Employee acknowledges that Employee received prior notice that Employee’s execution of this Agreement is a\nrequired condition of Employee’s at-will employment with Employer or other IDEX Entity.\nIN CONSIDERATION OF employment by Employer, access to and use of Confidential Information and Trade Secrets (both as\ndefined below), and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,\nEmployee agrees as follows:\n1.\nScope of Agreement.\nThis Agreement shall apply in connection with all of Employee’s activities on behalf of or with respect to Employer and/or any\nIDEX Entity.\nThis Agreement shall continue to apply and remain in full force and effect if Employee is transferred to or otherwise becomes an\nemployee of an IDEX Entity other than Employee’s initial Employer. If Employee is transferred to or otherwise becomes an\nemployee of an IDEX Entity other than Employee’s initial Employer, such other entity shall thereafter be deemed to be Employer\nfor all purposes of this Agreement.\nEmployer and each IDEX Entity and their respective successors and assigns shall be beneficiaries of this Agreement and shall be\nentitled to enforce this Agreement against Employee. In the event that Employee’s employment moves from Employer to any IDEX\nEntity, where allowed by applicable law, this Agreement shall be deemed automatically assigned to the new IDEX Entity. The\nparties otherwise agree that Employer and each IDEX Entity may assign this Agreement without notice to, or consent from,\nEmployee.\n2.\nDefinitions.\n“Confidential Information” means (a) competitively sensitive information, (b) of importance to IDEX, and (c) that becomes\nknown to you through your employment with IDEX. Confidential Information includes, but is not limited to, information about\nIDEX’s operations, services, and research and development of IDEX’s operations or services; names and other listings of current or\nprospective customers, vendors, suppliers, and referral sources; proposals to or the terms of any arrangements or agreements with\nany current or prospective customers, vendors, and suppliers, including payment and pricing information; the implementation of\ncustomer-specific projects; the composition or description of future services that will or may be offered by IDEX; marketing\nstrategies; financial and sales information; and technical expertise and know-how developed by IDEX, including the unique manner\nin which IDEX conducts its business. Confidential Information also includes information disclosed to IDEX by any third party\n(including but not limited to current or prospective customers) that IDEX is required to treat as confidential. Confidential\nInformation does not include information readily available to the public, so long as it was not made public by you or anyone\nworking on your behalf. It is not necessary that information, data, or materials be a trade secret in order for such information, data,\nor materials to be Confidential Information.\n“Creative Works” means and includes all works of authorship and other creative works of any kind (including but not limited to\ntrademarks, service marks and other marks, trade dresses, logos, trade names, advertising, promotional materials, product and\nprocess descriptions, manuals, report forms, spreadsheets, diagrams, plans, charts, blueprints, designs, specifications, prototypes,\nmodels, software code, chip designs, and circuitry designs), regardless of form, that directly or indirectly relate to the actual or\nanticipated business, research or development of IDEX, are directed to or capable of fulfilling any need or inquiry of any customer\nor potential customer of IDEX, and/or that are conceived, created, developed, made or produced by Employee in whole or in part\nduring Employee’s IDEX Employment (as defined below) or within six months after Employee’s IDEX Employment terminates,\nwhether conceived, created, developed, made or produced alone or with one or more other persons, whether or not any of such other\npersons are employees of IDEX, whether conceived, created, developed, made or produced during or outside normal work hours,\nand whether conceived, created, developed, made or produced within or outside the premises of IDEX. For the avoidance of doubt,\n“Creative Works” shall not be deemed to include works of authorship and other creative works that Employee conceives, creates,\ndevelops, makes or produces independent of all work that Employee does for IDEX, entirely on Employee’s own time, and without\nusing any equipment, supplies, facilities, intellectual property, or trade secrets or other confidential or proprietary information of\nIDEX and do not relate to the current or anticipated business, research or development of IDEX.\n“IDEX Employment” means employment with Employer and any IDEX Entity.\n“Last Day of Employment” means Employee’s last day of employment with Employer or any IDEX Entity (whichever is later). It\ndoes not encompass movement of Employee’s employment directly from Employer to any IDEX Entity. Such movement shall be\ndeemed as continued employment.\n“Inventions” means and includes all ideas, discoveries and inventions of any kind, whether or not patentable, that directly or\nindirectly relate to the actual or anticipated business, research or development of IDEX, are directed to or capable of fulfilling any\nneed or inquiry of any customer or potential customer of IDEX, and/or that are conceived, created or developed by Employee in\nwhole or in part during Employee’s IDEX Employment or within six months after Employee’s IDEX Employment terminates,\nwhether conceived, created or developed alone or with one or more other persons, whether or not any of such other persons are\nemployees of IDEX, whether conceived, created or developed during or outside normal work hours, and whether conceived, created\nor developed within or outside the IDEX premises. For the avoidance of doubt, “Inventions” shall not be deemed to include ideas,\ndiscoveries and inventions that Employee conceives, creates, develops and reduces to practice independent of all work that\nEmployee does for IDEX, entirely on Employee’s own time, and without using any equipment, supplies, facilities, intellectual\nproperty, or trade secrets or other confidential or proprietary information of IDEX and do not relate to the current or anticipated\nbusiness, research or development of IDEX.\n“Restricted Activities” means (a) any activity for a non-IDEX person or entity that, during the eighteen (18) months prior to\nEmployee’s Last Date of Employment, is (i) competitive with the business of Employer or IDEX Entity and (ii) involves\nEmployee’s performance of the same or substantially similar material responsibilities that Employee performed on behalf of\nEmployer or IDEX Entity; or (b) any other activity involving the unauthorized use or disclosure (or the likelihood of the\nunauthorized use or disclosure) of Confidential Information. For purposes of this definition and of Restricted Geographic Area\nbelow, the term “material” means the expected job duties and responsibilities associated with Employee’s position or that are\nrequested by Employer or IDEX Entity from time to time.\n“Restricted Geographic Area” means (a) any geographic area where Employer or IDEX Entity is doing business during\nEmployee’s employment by Employer or IDEX Entity and where Employee’s use or disclosure of Confidential Information would\nmaterially disadvantage Employer or IDEX Entity regardless of Employee’s physical location; or (b) any geographic area where\nEmployee performed material responsibilities for Employer or IDEX Entity and, if Employee’s material responsibilities are\nconfined to any specific location(s), anywhere within a forty (40) mile radius of such specific location(s) where Employee\nperformed material responsibilities - both during the eighteen (18) months prior to Employee’s Last Date of Employment.\n“Restricted Period” means the period of Employee’s employment with Employer or IDEX Entity and the following periods of\ntime after Employee’s Last Date of Employment: (a) twelve (12) months for Employee’s Non-Competition\nand Non-Solicitation of or Interference with Customers obligations under paragraphs 5(a) and 5(b); and (b) twenty-four (24) months\nfor Employee’s Non-Inducement and Non-Hire obligations under paragraph 5(c) of the Agreement.\n“Third Party Confidential Information” means Confidential Information of an IDEX customer, supplier, or other third party.\n“Third Party Work Product” means Work Product (as defined below) to which IDEX has agreed to grant any right, title, claim,\nlicense or interest to any customer or other third party, but only to the extent of the specific right, title, claim, license or interest\nagreed to be granted to such customer or other third party.\n“Trade Secret” means information defined as a trade secret by the applicable state Trade Secrets Act, the Federal Defend Trade\nSecrets Act of 2016, or other applicable law.\n“Work Product” means and includes (a) all Creative Works, (b) all Inventions, and (c) all other work product of any kind that\nresults from any work that Employee does for IDEX.\n3.\nConfidential Information and Trade Secrets.\n(a) Employee acknowledges that Employee will be provided and/or have access to Confidential Information and Trade Secrets\nduring Employee’s IDEX Employment.\n(b) Employee shall at all times during and after the termination of Employee’s IDEX Employment safeguard and protect the\nconfidential nature of all Confidential Information and Trade Secrets, and take such precautions with respect thereto as Employer or\nany IDEX Entity may from time to time request.\n(c) Employee shall not at any time during or after the termination of Employee’s IDEX Employment, either individually or on\nbehalf of Employer, an IDEX Entity, or any other person or entity, directly or indirectly:\n(i)\ndisclose, use, provide, publish, transfer or otherwise make available or disseminate any Confidential Information\nor Trade Secrets, except (A) as reasonably required in connection with the proper performance of Employee’s duties and\nresponsibilities with Employer or IDEX Entity, and (B) in the case of Third Party Confidential Information or Trade\nSecrets, as authorized by the relevant customer, supplier or other third party; or\n(ii)\nsell, market or otherwise attempt to personally profit or benefit in any way from any Confidential Information or\nTrade Secrets.\n(d) The obligation of non‐disclosure and non‐use of Confidential Information and Trade Secrets shall continue to exist for so long\nas such information remains confidential (excepting improper use and/or disclosure by Employee or permissible disclosures allowed\nunder this Agreement); if, however, a court requires a shorter duration, then the maximum time allowable by law will control, which\nwill not be less than eighteen (18) months following Employee’s Last Day of Employment.\n(e) Immediately upon the request of IDEX, Employee shall deliver to IDEX all Confidential Information, Trade Secrets and\nproperty that IDEX may from time to time request. In addition, at such time as Employee’s IDEX Employment terminates,\nEmployee shall deliver to Employer or IDEX Entity all Confidential Information, Trade Secrets and property in Employee’s\npossession or control (including in hard copy or electronic form) without retaining any copies thereof or extracts therefrom in any\nform, except for such Confidential Information, Trade Secrets or property, if any, that IDEX may specifically authorize Employee to\nretain and then only for the particular purpose or purposes for which Employee is authorized to use such Confidential Information,\nTrade Secrets or property by IDEX.\n(f) In addition to and not in lieu of the above obligations, Employee shall at all times comply with all restrictions on disclosure and\nuse of Third Party Confidential Information or Trade Secrets imposed under (i) any confidentiality, non-disclosure or other\nagreement, commitment or undertaking of IDEX with any customer, supplier or other third party of which Employee has been\nadvised or is aware, and (ii) any confidentiality, non-disclosure or other agreement, commitment or undertaking of Employee with\nany customer, supplier or other third party.\n(g) Employee will not be held criminally or civilly liable under any Federal or state trade secret law for the disclosure of a Trade\nSecret that: (i) is made (A) in confidence to a Federal, state, or local government official, either directly or indirectly, or to an\nattorney, and (B) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or\nother document filed in a lawsuit or other proceeding, if such filing is made under seal. Disclosure of Trade Secrets to attorneys,\nmade under seal, or pursuant to court order is also protected under 18 U.S . Code § 1833 in any retaliation lawsuit based on the\nreporting of a suspected violation of law.\n(h) Nothing in this Agreement is intended to be or will be construed to prevent, impede, or interfere with Employee’s right to\nrespond accurately and fully to any question, inquiry, or request for information regarding Employee or Employee’s employment\nwith Employer or IDEX Entity when required from initiating communications directly with, or responding to any inquiry from, or\nproviding truthful testimony and information to any Federal, state, or other regulatory authority in the course of an investigation or\nproceeding authorized by law and carried out by such agency. Employee is not required to contact Employer or IDEX Entity\nregarding the subject matter of any such communications before Employee engages in such communications. Nothing in this\nAgreement is intended to restrict Employee’s legally-protected right to discuss wages, hours or other working conditions with co-\nworkers, or in any way limit Employee’s rights under the National Labor Relations Act or any whistleblower act.\n4.\nWork Product.\n(a) Employee acknowledges that continuous improvement and innovation are key business strategies and objectives of IDEX,\nand, during Employee’s IDEX Employment, Employee is expected to conceive, create, develop, make and produce Work\nProduct.\n(b)\nEmployee shall fully and promptly disclose to Employer or IDEX Entity all Work Product.\n(c)\nAs between Employee and IDEX, all Work Product shall be deemed to be a work made for hire and the sole and\nexclusive property of IDEX.\n(d)\nEmployee hereby assigns to IDEX all of Employee’s current and future right, title, claim and interest in and to all Work\nProduct, including but not limited to all United States and foreign patent rights and copyrights.\n(e)\nEmployee shall not at any time during or after the termination of Employee’s IDEX Employment, either individually or\non behalf of any other person or entity, directly or indirectly: (i) use any Work Product except (A) as reasonably required in\nconnection with the proper performance of Employee’s duties and responsibilities with Employer or IDEX Entity, and (B) in the\ncase of Third Party Work Product, as authorized by the relevant customer or other third party; or (ii) sell, market, or otherwise\nattempt to personally profit or benefit in any way from any Work Product.\n5.\nRestrictive Covenants.\n(a) Non-Competition. Employee agrees that during the Restricted Period and in the Restricted Geographic Area, Employee will\nnot engage in any Restricted Activities; provided that Employee may invest Employee’s funds in securities of a person engaged in a\nbusiness that is directly competitive with IDEX if the securities of such a person are listed for trading on a registered securities\nexchange or actively traded in an over-the-counter market and Employee’s holdings represent less than one percent (1%) of the total\nnumber of shares or principal amount of the securities of such a person outstanding.\n(b) Non‐Solicitation of or Interference with Customers. Employee acknowledges that the relationships that Employer and any\nIDEX Entity has with their customers and employees, the goodwill related to such relationships, and the business knowledge,\ntraining, and skills of their employees have been developed with significant investments of time, effort, and expense on the part of\nIDEX and are valuable assets of IDEX. During the Restricted Period, for the purpose of engaging in Restricted Activities,\nEmployee shall not, directly or indirectly: (i) solicit business from or perform services for, or for the benefit of, any established\ncustomer or established account of Employer or IDEX Entity with which Employee had contact, participated in the contact, or about\nwhich Employee had knowledge of Confidential Information by reason of Employee’s relationship with Employer or IDEX Entity\nwithin the eighteen (18) month period prior to Employee’s Last Date of Employment; (ii) solicit business from or perform services\nfor, or for the benefit of, any customer or account that was pursued by Employer or IDEX Entity and with which Employee had\ncontact, participated in the contact, or about which Employee had knowledge of by reason of Employee’s access to or use of\nConfidential Information within the eighteen (18) month period prior to Employee’s Last Date of Employment; or (iii) influence,\nseek to influence, or contact for the purpose of influencing or seeking to influence, any person or entity to limit or cease doing\nbusiness with Employer or IDEX Entity.\n(c) Non‐Inducement and Non-Hire. During the Restricted Period, Employee shall not, directly or indirectly, solicit, hire, attempt to\nsolicit or hire, or participate in any attempt to solicit or hire for any non‐IDEX entity, any person who at any time during the\neighteen (18) months immediately preceding the date of such solicitation or hire is or was an officer, employee or consultant of\nEmployer or IDEX Entity occupying a position uniquely essential to the management, organization, or servicing of the business of\nEmployer or IDEX Entity to resign from his or her employment, or whom Employee was aware was being actively recruited by\nIDEX, and with whom Employee had contact or participated in contact during Employee’s employment with Employer or IDEX\nEntity.\n(d) Covenants are Reasonable. The parties understand and agree that the covenants in this paragraph are necessary and essential to\nprotect IDEX’s proprietary and confidential business information; that the area, duration and scope of the covenants in this\nparagraph are reasonable and necessary to protect IDEX; that they do not unduly oppress or restrict Employee’s ability to earn a\nlivelihood in Employee’s chosen profession; that they are not an undue restraint on Employee’s trade or any of the public interests\nthat may be involved; that good and valuable consideration exists for Employee’s agreement to be bound by such covenants; and\nthat Employer or IDEX Entity has a legitimate business purpose in requiring Employee to abide by the covenants set forth in this\nparagraph.\n6.\nFurther Assurances.\nEmployee shall comply with all instructions and directions of Employer and any IDEX Entity and provide all assistance and\ncooperation, provide and make available all records, files and information, execute and deliver all assignments, affidavits,\ncertifications and other documents and instruments, and take and do all other actions and things that Employer or any IDEX Entity\nmay at any time and from time to time properly request to protect and preserve Confidential Information, evidence, secure, perfect\nand protect its rights, title, claims and interests in Work Product, seek and obtain United States and/or foreign patents with respect to\nWork Product, comply with and carry out agreements, commitments and undertakings made by IDEX to any customer, supplier or\nother third party relating to Third Party Confidential Information, Trade Secrets and/or Third Party Work Product, or carry out and\nimplement the provisions of this Agreement.\nThe IDEX Entity that requests Employee to take or perform any action or thing pursuant to this paragraph shall reimburse\nEmployee for Employee’s reasonable and necessary out-of-pocket costs and expenses in taking or performing such action or things;\nprovided, however, that (i) Employee shall advise such IDEX Entity prior to incurring any out-of-pocket cost and expense in excess\nof $50.00 so that such IDEX Entity can determine whether such out-of-pocket expense is reasonable and necessary in advance of it\nbeing incurred and advise Employee whether such IDEX Entity wishes to withdraw or modify its request for Employee to take or\nperform such action or thing, (ii) Employee shall not be entitled to be reimbursed for any cost or expense that is attributable to or\narises out of any failure of Employee to comply with the provisions of this Agreement, and (iii) the obligation to reimburse\nEmployee for out-of-pocket costs and expenses shall not apply in connection with a lawsuit or other legal action to enforce this\nAgreement against Employee.\n7.\nBreach and Equitable Remedies.\nEmployee acknowledges that the restrictions contained in this Agreement, including in paragraphs 2, 3, 4 or 5 above, are necessary\nto protect the legitimate interests of IDEX and that any violation of this Agreement would result in irreparable harm and injury to\nEmployer or IDEX Entity. In the event of a breach or threatened breach by Employee of the provisions of this Agreement,\nEmployee agrees that Employer or IDEX Entity will be entitled to an injunction, without first posting bond and without notice,\nrestraining Employee from such breach or threatened breach and to any other legal or equitable remedies available to Employer or\nIDEX Entity. Employer or IDEX Entity will also be entitled to all costs and expenses (including reasonable attorneys’ fees) from\nEmployee should Employee breach this Agreement.\n8.\nRestrictive Agreements and Restricted Information.\n(a) Except as disclosed on the Schedule of Restrictive Agreements attached to this Agreement, Employee has not made and is not\na party or subject to any confidentiality, non-disclosure, inventions, employment or other agreement, commitment or undertaking\nwith a prior employer or any other person or entity that could limit or restrict Employee in the performance of Employee’s duties\nand responsibilities with Employer or IDEX Entity.\n(b) Employee shall not at any time during Employee’s IDEX Employment disclose, provide or make available to Employer, IDEX\nEntity or any customer, supplier or other third party with whom IDEX has a relationship any information, data or materials that\nEmployee has obtained from a prior employer, customer, supplier or other third party that may be subject to any restriction on\ndisclosure or use (“Restricted Information”) unless Employee is clearly authorized to disclose, provide or make available such\nRestricted Information to the person or persons to whom Employee is disclosing, providing or making available such Restricted\nInformation for the purpose or purposes for which such Restricted Information is being disclosed.\n9.\nEmployment at Will.\nUnless and except to the extent Employer or IDEX Entity may expressly agree otherwise in a separate written employment\nagreement with Employee, Employee’s IDEX Employment is and shall at all times be “at will”, and nothing in this Agreement is\nintended to change Employee’s status as an “at will” employee or create or imply any right or expectation in Employee of\ncontinuing IDEX Employment.\n10.\nReasonableness, Severability and Reformation.\nEmployee acknowledges that the provisions of this Agreement and the obligations imposed on Employee under this Agreement are\nfair and reasonable, not unduly burdensome or restrictive on Employee, and appropriate and necessary for the protection of the\nproperty and legitimate business interests of Employer or other IDEX Entity.\nThe provisions of this Agreement are severable. Employee agrees that if any particular paragraphs, subparagraphs, subparts,\nphrases, words, or other portions of this Agreement are determined by an appropriate court to be invalid or unenforceable as written,\nthey shall be modified as necessary to be valid or enforceable, and such modification shall not affect the remaining provisions of\nthis Agreement; or, if they cannot be modified to be made valid or enforceable, then they shall be severed from this Agreement, and\nall remaining non-eliminated paragraphs, subparagraphs, subparts, phrases, words, or other portions of this Agreement shall be\nenforced.\n11.\nMiscellaneous.\n(a) This Agreement shall be governed by, interpreted, and enforced in accordance with the internal laws of the State of\nDelaware of the United States of America, without regard to any principles of conflict of laws. Any action regarding this\nAgreement or Employee’s employment with or separation from Employer or other IDEX Entity must be brought and\nprosecuted in the state or federal courts where the principal place of business for Employer or other IDEX Entity is located,\nand the parties will not dispute that personal jurisdiction or venue is appropriate and convenient in those courts.\n(b)\nThis Agreement sets forth the entire agreement and understanding of the parties relating to its subject matter, and no\nrepresentation, commitment or undertaking has been made to Employee in connection with, or to induce Employee to enter into,\nthis Agreement other than as set forth herein.\n(c)\nThe rights and remedies of IDEX under this Agreement, and the liabilities and obligations of Employee under this\nAgreement, are not exclusive, but are in addition to any and all rights and remedies that IDEX may have, and any and all liabilities\nand obligations that Employee may have, under any law, statute, rule or regulation, any IDEX corporate policy, or, subject only to\nparagraph 11(b) above, any other contract or agreement.\n(d)\nThis Agreement may be amended, modified, or terminated, and compliance with the provisions of this Agreement may\nbe waived only in writing signed by Employee and a duly authorized officer of Employer. The waiver of or failure to enforce the\nprovisions of this Agreement or other similar agreement that IDEX may have with Employee or any other employee shall not\nconstitute a waiver of or limit or restrict in any way the right of Employer or IDEX Entity to enforce the provisions of this\nAgreement against Employee. The rights and remedies of IDEX under this Agreement shall be in addition to, and not in lieu of, any\nrights and remedies that may be available to it independent of this Agreement.\n(e)\nThis Agreement shall continue in full force and effect notwithstanding any changes in the terms and conditions of the\nEmployee’s employment with Employer or IDEX Entity, including, without limitation, any change in title, position, duties, or\nresponsibility.\n(f)\nEmployee acknowledges that (i) the signing of this Agreement is a condition to Employee being employed by Employer,\n(ii) Employee would have had no right or entitlement to IDEX Employment by Employer or other IDEX Entity if this Agreement\nhad not been signed by Employee, (iii) Employee was given the right to consult with an attorney prior to signing this Agreement,\n(iv) if Employee did not consult with an attorney prior to signing this\nAgreement, it was a voluntary choice on the part of Employee not to so consult, and (v) Employee is voluntarily entering into this\nAgreement.\n(g)\nThe termination of Employee’s IDEX Employment, regardless of the nature of or reason for the termination, shall not\nterminate or relieve Employee from complying with the provisions of this Agreement.\n(h)\nEmployee agrees that in the event Employee is offered to enter into an employment relationship with a third party at any\ntime during the existence of this Agreement, including in any such other period in which post‐employment obligations of this\nAgreement apply, the business of which is in any way competitive with Employer or other IDEX Entity, Employee shall\nimmediately advise said other third party of the existence of this Agreement and shall provide said person or entity with a copy of\nthis Agreement.\nIN WITNESS WHEREOF, the undersigned have executed this Agreement freely and voluntarily with the intention of being\nlegally bound by it.\nEMPLOYEE\nIDEX CORPORATION\nSigned:\nName:\nDated:\nBy:\nName:\nTitle:\nDated:\n_____________________________________________________________________________________\nEmployee Name:\nSchedule of Restrictive Agreements\n(If none, insert “NONE”)
+ad8867327f8202a3e4175eb9bf93970b.pdf	effective_date jurisdiction party term	EX-10 .2 3 ex10-2 .htm CONFIDENTIALITY AGREEMENT\nExhibit 10.2\nCONFIDENTIALITY AGREEMENT\nAvon Products, Inc.\nBuilding 6, Chiswick Park\nLondon W4 5HR\nUnited Kingdom\nMarch 26, 2018\nTo: Each of the persons listed on Schedule A hereto (“Barington” or “you”)\nLadies and Gentlemen:\nThis letter agreement shall become effective upon the appointment of the Designee to the Board of Directors (the “Board”) of\nAvon Products, Inc. (the “Company”). Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the\nNomination Agreement (the “Nomination Agreement”), dated as of March 26, 2018, among the Company, the Designee and the other parties\nthereto. The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement, including but not\nlimited to paragraph 2, the Designee may, if and to the extent he desires to do so, disclose information he obtains while serving as a member of\nthe Board to you and your Representatives (as hereinafter defined), and may discuss such information with any and all such persons, subject to\nthe terms and conditions of this letter agreement. As a result, you and your Representatives may receive certain non-public information regarding\nthe Company. You acknowledge that this information is proprietary to the Company and may include trade secrets or other business information\nthe disclosure of which could harm the Company. In consideration for, and as a condition of, the information being furnished to you and, subject\nto the restrictions in paragraph 2, the persons set forth on Schedule B hereto (collectively, the “Representatives”), you agree to treat any and all\ninformation concerning or relating to the Company or any of its subsidiaries or affiliates that is furnished to you or your Representatives\n(regardless of the manner in which it is furnished, including in written or electronic format or orally, gathered by visual inspection or otherwise)\nby the Designee, or by or on behalf of the Company, together with any notes, analyses, reports, models, compilations, studies, interpretations,\ndocuments, records or extracts thereof containing, referring, relating to, based upon or derived from such information, in whole or in part\n(collectively, “Evaluation Material”), in accordance with the provisions of this letter agreement, and to take or abstain from taking the other\nactions hereinafter set forth.\n1. The term “Evaluation Material” does not include information that (a) is or has become generally available to the public other than\nas a result of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement or any obligation of\nconfidentiality, (b) was within your or any of your Representatives’ possession on a non-confidential basis prior to its being furnished to you by\nthe Designee, or by or on behalf of the Company or its agents, representatives, attorneys, advisors, directors, officers or employees (collectively,\nthe “Company Representatives”), (c) is received from a source other than the Designee, the Company or any of the Company Representatives or\n(d) was independently developed by you or one of your Representatives without use of or reference to any Evaluation Material; provided, that in\nthe case of clause (c) above, the source of such information was not believed by you, after reasonable inquiry of the disclosing person, to be\nbound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other\nperson with respect to such information at the time the information was disclosed to you.\n1\n2. You and your Representatives will, and you will direct your Representatives to, (a) keep the Evaluation Material strictly\nconfidential and (b) not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company;\nprovided, however, that you may privately disclose any of such information: (i) to your Representatives (A) who need to know such information\nfor the sole purpose of advising you on your investment in the Company and (B) who are informed by you of the confidential nature of such\ninformation; provided, further, that you will be responsible for any violation of this letter agreement by your Representatives as if they were\nparties hereto; and (ii) to the Company and the Company Representatives. It is understood and agreed that the Designee shall not disclose to you\nor your Representatives any Legal Advice (as defined below) that may be included in the Evaluation Material with respect to which such\ndisclosure would constitute waiver of the Company’s attorney-client privilege or attorney work-product privilege. “Legal Advice” as used herein\nshall be solely and exclusively limited to the advice provided by legal counsel and shall not include factual information or the formulation or\nanalysis of business strategy that is not protected by the attorney client or attorney work product privilege.\n3. In the event that you or any of your Representatives are required by applicable subpoena, legal process or other legal requirement\nto disclose any of the Evaluation Material, you will promptly notify (except where such notice would be legally prohibited) the Company in\nwriting by email, facsimile and certified mail so that the Company may seek a protective order or other appropriate remedy (and if the Company\nseeks such an order, you will provide such cooperation as the Company shall reasonably request), at its cost and expense. Nothing herein shall be\ndeemed to prevent you or your Representatives, as the case may be, from honoring a subpoena, legal process or other legal requirement that\nrequires discovery, disclosure or production of the Evaluation Material if (a) you produce or disclose only that portion of the Evaluation Material\nwhich your outside legal counsel advises you is legally required to be so produced or disclosed and you inform the recipient of such Evaluation\nMaterial of the existence of this letter agreement and the confidential nature of such Evaluation Material; or (b) the Company consents in writing\nto having the Evaluation Material produced or disclosed pursuant to the subpoena, legal process or other legal requirement. In no event will you\nor any of your Representatives oppose action by the Company to obtain a protective order or other relief to prevent the disclosure of the\nEvaluation Material or to obtain reliable assurance that confidential treatment will be afforded the Evaluation Material. For the avoidance of\ndoubt, it is understood that there shall be no “legal requirement” requiring you to disclose any Evaluation Material solely by virtue of the fact\nthat, absent such disclosure, you would be prohibited from purchasing, selling or engaging in derivative or other voluntary transactions with\nrespect to the Common Stock of the Company or otherwise proposing or making an offer to do any of the foregoing, or you would be unable to\nfile any proxy materials in compliance with Section 14(a) of the Exchange Act or the rules promulgated thereunder.\n2\n4. You and your Representatives acknowledge that (a) none of the Company or any of the Company Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of any Evaluation Material, and (b) none of the Company or\nany of the Company Representatives shall have any liability to you or to any of your Representatives relating to or resulting from the use of the\nEvaluation Material or any errors therein or omissions therefrom. You and your Representatives (or anyone acting on your or their behalf) shall\nnot directly or indirectly initiate contact or communication with any executive or employee of, or advisor to, the Company other than the Chief\nExecutive Officer, the Chief Financial Officer, the General Counsel and/or such other persons approved in writing by the foregoing or the Board\nconcerning Evaluation Material, or to seek any information in connection therewith from any such person other than the foregoing, without the\nprior consent of the Company; provided, however, the restriction in this sentence shall not in any way apply to the Designee acting in his capacity\nas a Board member.\n5. All Evaluation Material shall remain the property of the Company. Neither you nor any of your Representatives shall by virtue of\nany disclosure of and/or your use of any Evaluation Material acquire any rights with respect thereto, all of which rights (including all intellectual\nproperty rights) shall remain exclusively with the Company. At any time after the date on which the Designee is no longer a director of the\nCompany, upon the written request of the Company for any reason, (a) you and your Representatives will promptly return to the Company or\ndestroy all hard copies of the Evaluation Material and use commercially reasonable efforts to erase or delete all electronic copies of the\nEvaluation Material in your or any of your Representatives’ possession or control, provided, however, that you and your Representatives will\nhave no obligation to delete Evaluation Material in electronic form that has been automatically backed up on you or your Representatives’\ncomputer servers, and (b) you shall promptly certify to the Company that such Evaluation Material has been erased or deleted, as the case may\nbe. Notwithstanding the return or erasure or deletion of Evaluation Material, you and your Representatives will continue to be bound by the\nobligations contained herein.\n6. You acknowledge, and will advise your Representatives, that the Evaluation Material may constitute material non-public\ninformation under applicable federal and state securities laws, and that you and your Representatives shall not, and you shall use your reasonable\nbest efforts to ensure that your Representatives, do not, trade or engage in any derivative or other transaction, on the basis of such information in\nviolation of such laws.\n3\n7. You hereby represent and warrant to the Company that (a) you have all requisite power and authority to execute and deliver this\nletter agreement and to perform your obligations hereunder, (b) this letter agreement has been duly authorized, executed and delivered by you,\nand is a valid and binding obligation, enforceable against you in accordance with its terms, (c) this letter agreement will not result in a violation\nof any terms or conditions of any agreements to which you are a party or by which you may otherwise be bound or of any law, rule, license,\nregulation, judgment, order or decree governing or affecting you, and (d) your entry into this letter agreement does not require approval by any\nowners or holders of any equity or other interest in you (except as has already been obtained).\n8. It is agreed that no delay or omission by the Company to exercise any right, power or remedy accruing to it upon any breach or\ndefault of any other party under this letter agreement shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any\nsuch breach or default, or any acquiescence therein, or of any similar breach or default thereafter occurring; nor shall any waiver by the Company\nof any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. It is further agreed that any\nwaiver, permit, consent or approval of any kind or character by the Company of any breach or default under this letter agreement, or any waiver\nby the Company of any provisions or conditions of this letter agreement must be in writing and shall be effective only to the extent specifically\nset forth in writing. Any permission, consent, or approval of any kind or character under this letter agreement shall be in writing and shall be\neffective only to the extent specifically set forth in such writing. The failure of the Company to insist upon strict adherence to any term of this\nletter agreement on one or more occasions shall not be considered a waiver or deprive the Company of the right thereafter to insist upon strict\nadherence to that term or any other term of this letter agreement.\n9. All notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in\nregard hereto shall be in writing and shall be deemed validly given, made or served, if (a) given by email, when such email is sent to the email\naddress set forth below and the appropriate confirmation is received or (b) if given by any other means, when actually received during normal\nbusiness hours at the address specified in this paragraph:\nIf to the Company:\nAvon Products, Inc.\nBuilding 6, Chiswick Park\nLondon W4 5HR\nUnited Kingdom\nAttention: General Counsel\nEmail:\njames.thompson@avon.com\n4\nwith a copy (which will not constitute notice) to:\nCravath, Swaine & Moore LLP\nWorldwide Plaza\n825 Eighth Avenue\nNew York, NY 10019\nAttention: George F. Schoen, Esq.\nTing S. Chen, Esq.\nEmail:\ngschoen@cravath.com\ntchen@cravath.com\nIf to you:\nBarington Capital Group, L.P.\n888 Seventh Avenue, 6th Floor\nNew York, New York 10019\nAttention: James A. Mitarotonda\nEmail:\njmitarotonda@barington.com\nwith a copy (which will not constitute notice) to:\nOlshan Frome & Wolosky LLP\n1325 Avenue of the Americas\nNew York NY 10019\nAttention: Steve Wolosky, Esq.\nAndrew M. Freedman, Esq.\nEmail:\nswolosky@olshanlaw.com\nafreedman@olshanlaw.com\n10. You and your Representatives recognize and agree that the value of the Evaluation Material is unique and substantial, but may be\nimpractical or difficult to assess in monetary terms, and that, if for any reason any of the provisions of this letter agreement are not performed in\naccordance with their specific terms or are otherwise breached, immediate and irreparable harm or injury would be caused for which money\ndamages would not be an adequate remedy. Accordingly, you and your Representatives agree that in addition to other remedies the Company is\nentitled to at law or in equity, the Company shall be entitled to seek an injunction or injunctions to prevent breaches of this letter agreement and\nto enforce specifically the terms and provisions of this letter agreement, exclusively in the Supreme Court of the State of New York, New York\nCounty or the United States District Court for the Southern District of New York. In the event that any action shall be brought by the Company\nin equity to enforce the provisions of this letter agreement, neither you nor your Representative shall allege, and you and your Representative\nhereby waive the defense, that there is an adequate remedy at law. Furthermore, you and your Representatives irrevocably and unconditionally\n(a) consent to submit yourselves to the personal jurisdiction of the Supreme Court of the State of New York, New York County and the United\nStates District Court for the Southern District of New York in the event any dispute arises out of this letter agreement or the transactions\ncontemplated by this letter agreement, (b) agree that you shall not attempt to deny or defeat such personal jurisdiction by motion or other request\nfor leave from any such court, (c) agree that you shall not bring any action relating to this letter agreement or the transactions contemplated by\nthis letter agreement in any court other than the Supreme Court of the State of New York, New York County or the United States District Court\nfor the Southern District of New York, and waive the right to trial by jury, (d) agree to waive any bonding requirement under any applicable law,\nin the case that the Company seeks to enforce the terms by way of equitable relief and (e) consent to service of process by a reputable overnight\nmail delivery service, signature requested, to the address set forth in paragraph 9 or as otherwise provided by applicable law. THIS LETTER\nAGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE\nLAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN\nSUCH STATE, WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.\n5\n11. This letter agreement and the Nomination Agreement contain the entire understanding of the parties with respect to the subject\nmatter hereof and thereof and may be amended only by an agreement in writing executed by the party against whom enforcement of any such\namendment is sought.\n12. If at any time subsequent to the date hereof, any provision of this letter agreement shall be held by any court of competent\njurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of such\nprovision shall have no effect upon the legality or enforceability of any other provision of this letter agreement.\n13. This letter agreement may be executed in two or more counterparts (and may be delivered in portable document format (.pdf)),\nall of which together shall constitute a single agreement.\n14. The terms and conditions of this letter agreement will be binding upon, inure to the benefit of and be enforceable by the parties\nand their successors, heirs, executors and legal representatives. This letter agreement, and the rights and obligations herein, shall not be\nassignable or assigned, directly or indirectly, by operation of law or otherwise, by any of the parties hereto.\n15. This letter agreement is solely for the benefit of the parties hereto and is not enforceable by any other persons.\n16. This letter agreement shall expire two years from the date on which the Designee ceases to be a director of the Company; except\nthat you and your Representatives shall maintain in accordance with the confidentiality obligations set forth herein any Evaluation Material\nconstituting trade secrets for such longer time as such information constitutes a trade secret of the Company as defined under 18 U.S .C .\n§ 1839(3).\n6\n17. No licenses or rights under any patent, copyright, trademark or trade secret are granted or are to be implied by this letter\nagreement.\n18. Each of the parties hereto and its counsel cooperated and participated in the drafting and preparation of this letter agreement and\nthe documents referred to herein, and any and all drafts relating thereto exchanged among the parties shall be deemed the work product of all of\nthe parties and may not be construed against any party by reason of its drafting or preparation. Accordingly, any rule of law or any legal decision\nthat would require interpretation of any ambiguities in this letter agreement against any party that drafted or prepared it is of no application and is\nhereby expressly waived by each of the parties , and any controversy over interpretations of this letter agreement shall be decided without regard\nto events of drafting or preparation. The term “including” shall be deemed to mean “including without limitation” in all instances.\n[Signature Pages Follow]\n7\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon this\nletter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nAVON PRODUCTS, INC.\nBy: /s/ James Thompson\nName:James Thompson\nTitle: SVP & General Counsel\n[Signature Page to Confidentiality Agreement]\nJAMES A. MITAROTONDA, individually\n/s/ James A. Mitarotonda\nBARINGTON COMPANIES EQUITY\nPARTNERS, L.P.\nBy: Barington Companies Investors, LLC, its\ngeneral partner\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: Managing Member\nBARINGTON CAPITAL GROUP, L.P.\nBy: LNA Capital Corp., its general partner\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: President and CEO\nBARINGTON COMPANIES INVESTORS, LLC\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: Managing Member\nBARINGTON COMPANIES MANAGEMENT,\nLLC\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: Managing Member\n[Signature Page to Confidentiality Agreement]\nSCHEDULE A\nBARINGTON\n1. James A. Mitarotonda\n2. Barington Companies Equity Partners, L.P.\n3. Barington Capital Group, L.P.\n4. Barington Companies Investors, LLC\n5. Barington Companies Management, LLC\n1. Any controlled affiliate of James A. Mitarotonda or Barington Capital Group, L.P., and full-time employees of Barington Capital\nGroup, L.P. and such affiliates.\nSCHEDULE B	EX-10.2 3 ex10-2.htm CONFIDENTIALITY AGREEMENT\nExhibit 10.2\nCONFIDENTIALITY AGREEMENT\nAvon Products, Inc.\nBuilding 6, Chiswick Park\nLondon W4 5HR\nUnited Kingdom\nMarch 26, 2018\nTo:  Each of the persons listed on Schedule A hereto (“Barington” or “you”)\nLadies and Gentlemen:\nThis letter agreement shall become effective upon the appointment of the Designee to the Board of Directors (the “Board”) of\nAvon Products, Inc. (the “Company™). Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the\nNomination Agreement (the “Nomination Agreement”), dated as of March 26, 2018, among the Company, the Designee and the other parties\nthereto. The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement, including but not\nlimited to paragraph 2, the Designee may, if and to the extent he desires to do so, disclose information he obtains while serving as a member of\nthe Board to you and your Representatives (as hereinafter defined), and may discuss such information with any and all such persons, subject to\nthe terms and conditions of this letter agreement. As a result, you and your Representatives may receive certain non-public information regarding\nthe Company. You acknowledge that this information is proprietary to the Company and may include trade secrets or other business information\nthe disclosure of which could harm the Company. In consideration for, and as a condition of, the information being furnished to you and, subject\nto the restrictions in paragraph 2, the persons set forth on Schedule B hereto (collectively, the “Representatives”), you agree to treat any and all\ninformation concerning or relating to the Company or any of its subsidiaries or affiliates that is furnished to you or your Representatives\n(regardless of the manner in which it is furnished, including in written or electronic format or orally, gathered by visual inspection or otherwise)\nby the Designee, or by or on behalf of the Company, together with any notes, analyses, reports, models, compilations, studies, interpretations,\ndocuments, records or extracts thereof containing, referring, relating to, based upon or derived from such information, in whole or in part\n(collectively, “Evaluation Material”), in accordance with the provisions of this letter agreement, and to take or abstain from taking the other\nactions hereinafter set forth.\n \n1. The term “Evaluation Material” does not include information that (a) is or has become generally available to the public other than\nas a result of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement or any obligation of\nconfidentiality, (b) was within your or any of your Representatives’ possession on a non-confidential basis prior to its being furnished to you by\nthe Designee, or by or on behalf of the Company or its agents, representatives, attorneys, advisors, directors, officers or employees (collectively,\nthe “Company_Representatives™), (c) is received from a source other than the Designee, the Company or any of the Company Representatives or\n(d) was independently developed by you or one of your Representatives without use of or reference to any Evaluation Material; provided, that in\nthe case of clause (c) above, the source of such information was not believed by you, after reasonable inquiry of the disclosing person, to be\nbound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other\nperson with respect to such information at the time the information was disclosed to you.\n2. You and your Representatives will, and you will direct your Representatives to, (a) keep the Evaluation Material strictly\nconfidential and (b) not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company;\nprovided, however, that you may privately disclose any of such information: (i) to your Representatives (A) who need to know such information\nfor the sole purpose of advising you on your investment in the Company and (B) who are informed by you of the confidential nature of such\ninformation; provided, further, that you will be responsible for any violation of this letter agreement by your Representatives as if they were\nparties hereto; and (ii) to the Company and the Company Representatives. It is understood and agreed that the Designee shall not disclose to you\nor your Representatives any Legal Advice (as defined below) that may be included in the Evaluation Material with respect to which such\ndisclosure would constitute waiver of the Company’s attorney-client privilege or attorney work-product privilege. “Legal Advice” as used herein\nshall be solely and exclusively limited to the advice provided by legal counsel and shall not include factual information or the formulation or\nanalysis of business strategy that is not protected by the attorney client or attorney work product privilege.\n3. Inthe event that you or any of your Representatives are required by applicable subpoena, legal process or other legal requirement\nto disclose any of the Evaluation Material, you will promptly notify (except where such notice would be legally prohibited) the Company in\nwriting by email, facsimile and certified mail so that the Company may seek a protective order or other appropriate remedy (and if the Company\nseeks such an order, you will provide such cooperation as the Company shall reasonably request), at its cost and expense. Nothing herein shall be\ndeemed to prevent you or your Representatives, as the case may be, from honoring a subpoena, legal process or other legal requirement that\nrequires discovery, disclosure or production of the Evaluation Material if (a) you produce or disclose only that portion of the Evaluation Material\nwhich your outside legal counsel advises you is legally required to be so produced or disclosed and you inform the recipient of such Evaluation\nMaterial of the existence of this letter agreement and the confidential nature of such Evaluation Material; or (b) the Company consents in writing\nto having the Evaluation Material produced or disclosed pursuant to the subpoena, legal process or other legal requirement. In no event will you\nor any of your Representatives oppose action by the Company to obtain a protective order or other relief to prevent the disclosure of the\nEvaluation Material or to obtain reliable assurance that confidential treatment will be afforded the Evaluation Material. For the avoidance of\ndoubt, it is understood that there shall be no “legal requirement” requiring you to disclose any Evaluation Material solely by virtue of the fact\nthat, absent such disclosure, you would be prohibited from purchasing, selling or engaging in derivative or other voluntary transactions with\nrespect to the Common Stock of the Company or otherwise proposing or making an offer to do any of the foregoing, or you would be unable to\nfile any proxy materials in compliance with Section 14(a) of the Exchange Act or the rules promulgated thereunder.\n4. You and your Representatives acknowledge that (a) none of the Company or any of the Company Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of any Evaluation Material, and (b) none of the Company or\nany of the Company Representatives shall have any liability to you or to any of your Representatives relating to or resulting from the use of the\nEvaluation Material or any errors therein or omissions therefrom. You and your Representatives (or anyone acting on your or their behalf) shall\nnot directly or indirectly initiate contact or communication with any executive or employee of, or advisor to, the Company other than the Chief\nExecutive Officer, the Chief Financial Officer, the General Counsel and/or such other persons approved in writing by the foregoing or the Board\nconcerning Evaluation Material, or to seek any information in connection therewith from any such person other than the foregoing, without the\nprior consent of the Company; provided, however, the restriction in this sentence shall not in any way apply to the Designee acting in his capacity\nas a Board member.\n5. All Evaluation Material shall remain the property of the Company. Neither you nor any of your Representatives shall by virtue of\nany disclosure of and/or your use of any Evaluation Material acquire any rights with respect thereto, all of which rights (including all intellectual\nproperty rights) shall remain exclusively with the Company. At any time after the date on which the Designee is no longer a director of the\nCompany, upon the written request of the Company for any reason, (a) you and your Representatives will promptly return to the Company or\ndestroy all hard copies of the Evaluation Material and use commercially reasonable efforts to erase or delete all electronic copies of the\nEvaluation Material in your or any of your Representatives’ possession or control, provided, however, that you and your Representatives will\nhave no obligation to delete Evaluation Material in electronic form that has been automatically backed up on you or your Representatives’\ncomputer servers, and (b) you shall promptly certify to the Company that such Evaluation Material has been erased or deleted, as the case may\nbe. Notwithstanding the return or erasure or deletion of Evaluation Material, you and your Representatives will continue to be bound by the\nobligations contained herein.\n6.  You acknowledge, and will advise your Representatives, that the Evaluation Material may constitute material non-public\ninformation under applicable federal and state securities laws, and that you and your Representatives shall not, and you shall use your reasonable\nbest efforts to ensure that your Representatives, do not, trade or engage in any derivative or other transaction, on the basis of such information in\nviolation of such laws.\n7. You hereby represent and warrant to the Company that (a) you have all requisite power and authority to execute and deliver this\nletter agreement and to perform your obligations hereunder, (b) this letter agreement has been duly authorized, executed and delivered by you,\nand is a valid and binding obligation, enforceable against you in accordance with its terms, (c) this letter agreement will not result in a violation\nof any terms or conditions of any agreements to which you are a party or by which you may otherwise be bound or of any law, rule, license,\nregulation, judgment, order or decree governing or affecting you, and (d) your entry into this letter agreement does not require approval by any\nowners or holders of any equity or other interest in you (except as has already been obtained).\n8.  Itis agreed that no delay or omission by the Company to exercise any right, power or remedy accruing to it upon any breach or\ndefault of any other party under this letter agreement shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any\nsuch breach or default, or any acquiescence therein, or of any similar breach or default thereafter occurring; nor shall any waiver by the Company\nof any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. It is further agreed that any\nwaiver, permit, consent or approval of any kind or character by the Company of any breach or default under this letter agreement, or any waiver\nby the Company of any provisions or conditions of this letter agreement must be in writing and shall be effective only to the extent specifically\nset forth in writing. Any permission, consent, or approval of any kind or character under this letter agreement shall be in writing and shall be\neffective only to the extent specifically set forth in such writing. The failure of the Company to insist upon strict adherence to any term of this\nletter agreement on one or more occasions shall not be considered a waiver or deprive the Company of the right thereafter to insist upon strict\nadherence to that term or any other term of this letter agreement.\n9.  All notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in\nregard hereto shall be in writing and shall be deemed validly given, made or served, if (a) given by email, when such email is sent to the email\naddress set forth below and the appropriate confirmation is received or (b) if given by any other means, when actually received during normal\nbusiness hours at the address specified in this paragraph:\nIf to the Company:\nAvon Products, Inc.\nBuilding 6, Chiswick Park\nLondon W4 5HR\nUnited Kingdom\nAttention:  General Counsel\nEmail: james.thompson@avon.com\nwith a copy (which will not constitute notice) to:\nCravath, Swaine & Moore LLP\nWorldwide Plaza\n825 Eighth Avenue\nNew York, NY 10019\nAttention:  George F. Schoen, Esq.\nTing S. Chen, Esq.\nEmail: gschoen@cravath.com\ntchen@cravath.com\nIf to you:\nBarington Capital Group, L.P.\n888 Seventh Avenue, 6th Floor\nNew York, New York 10019\nAttention:  James A. Mitarotonda\nEmail: jmitarotonda@barington.com\nwith a copy (which will not constitute notice) to:\nOlshan Frome & Wolosky LLP\n1325 Avenue of the Americas\nNew York NY 10019\nAttention: ~ Steve Wolosky, Esq.\nAndrew M. Freedman, Esq.\nEmail: swolosky@olshanlaw.com\nafreedman@olshanlaw.com\n10.  You and your Representatives recognize and agree that the value of the Evaluation Material is unique and substantial, but may be\nimpractical or difficult to assess in monetary terms, and that, if for any reason any of the provisions of this letter agreement are not performed in\naccordance with their specific terms or are otherwise breached, immediate and irreparable harm or injury would be caused for which money\ndamages would not be an adequate remedy. Accordingly, you and your Representatives agree that in addition to other remedies the Company is\nentitled to at law or in equity, the Company shall be entitled to seek an injunction or injunctions to prevent breaches of this letter agreement and\nto enforce specifically the terms and provisions of this letter agreement, exclusively in the Supreme Court of the State of New York, New York\nCounty or the United States District Court for the Southern District of New York. In the event that any action shall be brought by the Company\nin equity to enforce the provisions of this letter agreement, neither you nor your Representative shall allege, and you and your Representative\nhereby waive the defense, that there is an adequate remedy at law. Furthermore, you and your Representatives irrevocably and unconditionally\n(a) consent to submit yourselves to the personal jurisdiction of the Supreme Court of the State of New York, New York County and the United\nStates District Court for the Southern District of New York in the event any dispute arises out of this letter agreement or the transactions\ncontemplated by this letter agreement, (b) agree that you shall not attempt to deny or defeat such personal jurisdiction by motion or other request\nfor leave from any such court, (c) agree that you shall not bring any action relating to this letter agreement or the transactions contemplated by\nthis letter agreement in any court other than the Supreme Court of the State of New York, New York County or the United States District Court\nfor the Southern District of New York, and waive the right to trial by jury, (d) agree to waive any bonding requirement under any applicable law,\nin the case that the Company seeks to enforce the terms by way of equitable relief and (e) consent to service of process by a reputable overnight\nmail delivery service, signature requested, to the address set forth in paragraph 9 or as otherwise provided by applicable law. THIS LETTER\nAGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE\nLAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN\nSUCH STATE, WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.\n11.  This letter agreement and the Nomination Agreement contain the entire understanding of the parties with respect to the subject\nmatter hereof and thereof and may be amended only by an agreement in writing executed by the party against whom enforcement of any such\namendment is sought.\n12.  If at any time subsequent to the date hereof, any provision of this letter agreement shall be held by any court of competent\njurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of such\nprovision shall have no effect upon the legality or enforceability of any other provision of this letter agreement.\n13.  This letter agreement may be executed in two or more counterparts (and may be delivered in portable document format (.pdf)),\nall of which together shall constitute a single agreement.\n14.  The terms and conditions of this letter agreement will be binding upon, inure to the benefit of and be enforceable by the parties\nand their successors, heirs, executors and legal representatives. This letter agreement, and the rights and obligations herein, shall not be\nassignable or assigned, directly or indirectly, by operation of law or otherwise, by any of the parties hereto.\n15.  This letter agreement is solely for the benefit of the parties hereto and is not enforceable by any other persons.\n16.  This letter agreement shall expire two years from the date on which the Designee ceases to be a director of the Company; except\nthat you and your Representatives shall maintain in accordance with the confidentiality obligations set forth herein any Evaluation Material\nconstituting trade secrets for such longer time as such information constitutes a trade secret of the Company as defined under 18 U.S.C.\n§ 1839(3).\n17.  No licenses or rights under any patent, copyright, trademark or trade secret are granted or are to be implied by this letter\nagreement.\n18.  Each of the parties hereto and its counsel cooperated and participated in the drafting and preparation of this letter agreement and\nthe documents referred to herein, and any and all drafts relating thereto exchanged among the parties shall be deemed the work product of all of\nthe parties and may not be construed against any party by reason of its drafting or preparation. Accordingly, any rule of law or any legal decision\nthat would require interpretation of any ambiguities in this letter agreement against any party that drafted or prepared it is of no application and is\nhereby expressly waived by each of the parties , and any controversy over interpretations of this letter agreement shall be decided without regard\nto events of drafting or preparation. The term “including” shall be deemed to mean “including without limitation” in all instances.\n[Signature Pages Follow]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon this\nletter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nAVON PRODUCTS, INC.\nBy: /s/ James Thompson\nName:James Thompson\nTitle: SVP & General Counsel\n[Signature Page to Confidentiality Agreement]\nJAMES A. MITAROTONDA, individually\n/s/ James A. Mitarotonda\nBARINGTON COMPANIES EQUITY\nPARTNERS, L.P.\nBy: Barington Companies Investors, LLC, its\ngeneral partner\nBy:/s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: Managing Member\nBARINGTON CAPITAL GROUP, L.P.\nBy: LNA Capital Corp., its general partner\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: President and CEO\nBARINGTON COMPANIES INVESTORS, LLC\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: Managing Member\nBARINGTON COMPANIES MANAGEMENT,\nLLC\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: Managing Member\n[Signature Page to Confidentiality Agreement]\nBARINGTON\nJames A. Mitarotonda\nBarington Companies Equity Partners, L.P.\nBarington Capital Group, L.P.\nBarington Companies Investors, LLC\nBarington Companies Management, LL.C\nSCHEDULE A\fSCHEDULE B\n1. Any controlled affiliate of James A. Mitarotonda or Barington Capital Group, L.P., and full-time employees of Barington Capital\nGroup, L.P. and such affiliates.	EX-10.2 ex10-2.htm CONFIDENTIALITY AGREEMENT\nExhibit 10.2\nCONFIDENTIALITY AGREEMENT\nAvon Products, Inc.\nBuilding 6, Chiswick Park\nLondon W4 5HR\nUnited Kingdom\nMarch 26, 2018\nTo: Each of the persons listed on Schedule A hereto ("Barington" or "you")\nLadies and Gentlemen:\nThis letter agreement shall become effective upon the appointment of the Designee to the Board of Directors (the "Board") of\nAvon Products, Inc. (the "Company."). Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the\nNomination Agreement (the "Nomination Agreement"), dated as of March 26, 2018, among the Company, the Designee and the other parties\nthereto. The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement, including but not\nlimited to paragraph 2, the Designee may, if and to the extent he desires to do so, disclose information he obtains while serving as a member of\nthe Board to you and your Representatives (as hereinafter defined), and may discuss such information with any and all such persons, subject\nto\nthe terms and conditions of this letter agreement. As a result, you and your Representatives may receive certain non-public information regarding\nthe Company. You acknowledge that this information is proprietary to the Company and may include trade secrets or other business information\nthe disclosure of which could harm the Company. In consideration for, and as a condition of, the information being furnished to you and, subject\nto the restrictions in paragraph 2, the persons set forth on Schedule B hereto (collectively, the "Representatives"), you agree to treat any and all\ninformation concerning or relating to the Company or any of its subsidiaries or affiliates that is furnished to you or your Representatives\n(regardless of the manner in which it is furnished, including in written or electronic format or orally, gathered by visual inspection or otherwise)\nby the Designee, or by or on behalf of the Company, together with any notes, analyses, reports, models, compilations, studies, interpretations,\ndocuments, records or extracts thereof containing, referring, relating to, based upon or derived from such information, in whole or in part\n(collectively, "Evaluation Material"), in accordance with the provisions of this letter agreement, and to take or abstain from taking the other\nactions hereinafter set forth.\n1.\nThe term "Evaluation Material" does not include information that (a) is or has become generally available to the public other than\nas a result of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement or any obligation of\nconfidentiality, (b) was within your or any of your Representatives' possession on a non-confidential basis prior to its being furnished to you by\nthe Designee, or by or on behalf of the Company or its agents, representatives, attorneys, advisors, directors, officers or employees (collectively,\nthe "Company. Representatives"), (c) is received from a source other than the Designee, the Company or any of the Company Representatives or\n(d) was independently developed by you or one of your Representatives without use of or reference to any Evaluation Material; provided, that in\nthe case of clause (c) above, the source of such information was not believed by you, after reasonable inquiry of the disclosing person, to be\nbound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other\nperson with respect to such information at the time the information was disclosed to you.\n1\n2.\nYou and your Representatives will, and you will direct your Representatives to, (a) keep the Evaluation Material strictly\nconfidential and (b) not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company;\nprovided, however, that you may privately disclose any of such information: (i) to your Representatives (A) who need to know such information\nfor the sole purpose of advising you on your investment in the Company and (B) who are informed by you of the confidential nature of such\ninformation; provided, further, that you will be responsible for any violation of this letter agreement by your Representatives as if they were\nparties hereto; and (ii) to the Company and the Company Representatives. It is understood and agreed that the Designee shall not disclose to you\nor your Representatives any Legal Advice (as defined below) that may be included in the Evaluation Material with respect to which such\ndisclosure would constitute waiver of the Company's attorney-client privilege or attorney work-product privilege. "Legal Advice" as used herein\nshall be solely and exclusively limited to the advice provided by legal counsel and shall not include factual information or the formulation or\nanalysis of business strategy that is not protected by the attorney client or attorney work product privilege.\n3.\nIn the event that you or any of your Representatives are required by applicable subpoena, legal process or other legal requirement\nto disclose any of the Evaluation Material, you will promptly notify (except where such notice would be legally prohibited) the Company in\nwriting by email, facsimile and certified mail so that the Company may seek a protective order or other appropriate remedy (and if the Company\nseeks such an order, you will provide such cooperation as the Company shall reasonably request), at its cost and expense. Nothing herein shall be\ndeemed to prevent you or your Representatives, as the case may be, from honoring a subpoena, legal process or other legal requirement that\nrequires\ndiscovery, disclosure or production of the Evaluation Material if (a) you produce or disclose only that portion of the Evaluation Material\nwhich your outside legal counsel advises you is legally required to be so produced or disclosed and you inform the recipient of such Evaluation\nMaterial of the existence of this letter agreement and the confidential nature of such Evaluation Material; or (b) the Company consents in writing\nto having the Evaluation Material produced or disclosed pursuant to the subpoena, legal process or other legal requirement. In no event will you\nor\nany of your Representatives oppose action by the Company to obtain a protective order or other relief to prevent the disclosure of the\nEvaluation Material or to obtain reliable assurance that confidential treatment will be afforded the Evaluation Material. For the avoidance\nof\ndoubt, it is understood that there shall be no "legal requirement" requiring you to disclose any Evaluation Material solely by virtue of the fact\nthat, absent such disclosure, you would be prohibited from purchasing, selling or engaging in derivative or other voluntary transactions with\nrespect to the Common Stock of the Company or otherwise proposing or making an offer to do any of the foregoing, or you would be unable to\nfile any proxy materials in compliance with Section 14(a) of the Exchange Act or the rules promulgated thereunder.\n2\n4.\nYou and your Representatives acknowledge that (a) none of the Company or any of the Company Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of any Evaluation Material, and (b) none of the Company or\nany of the Company Representatives shall have any liability to you or to any of your Representatives relating to or resulting from the use of the\nEvaluation Material or any errors therein or omissions therefrom. You and your Representatives (or anyone acting on your or their behalf) shall\nnot directly or indirectly initiate contact or communication with any executive or employee of, or advisor to, the Company other than the Chief\nExecutive Officer, the Chief Financial Officer, the General Counsel and/or such other persons approved in writing by the foregoing or the Board\nconcerning Evaluation Material, or to seek any information in connection therewith from any such person other than the foregoing, without the\nprior\nconsent\nof\nthe Company; provided, however, the restriction in this sentence shall not in any way apply to the Designee acting in his capacity\nas a Board member.\n5.\nAll Evaluation Material shall remain the property of the Company. Neither you nor any of your Representatives shall by virtue of\nany disclosure of and/or your use of any Evaluation Material acquire any rights with respect thereto, all of which rights (including all intellectual\nproperty rights) shall remain exclusively with the Company. At any time after the date on which the Designee is no longer a director of the\nCompany, upon the written request of the Company for any reason, (a) you and your Representatives will promptly return to the Company or\ndestroy all hard copies of the Evaluation Material and use commercially reasonable efforts to erase or delete all electronic copies of the\nEvaluation Material in your or any of your Representatives' possession or control, provided, however, that you and your Representatives will\nhave no obligation to delete Evaluation Material in electronic form that has been automatically backed up on you or your Representatives'\ncomputer servers, and (b) you shall promptly certify to the Company that such Evaluation Material has been erased or deleted, as the case may\nbe. Notwithstanding the return or erasure or deletion of Evaluation Material, you and your Representatives will continue to be bound by\nthe\nobligations contained herein.\n6. You acknowledge, and will advise your Representatives, that the Evaluation Material may constitute material non-public\ninformation under applicable federal and state securities laws, and that you and your Representatives shall not, and you shall use your reasonable\nbest efforts to ensure that your Representatives, do not, trade or engage in any derivative or other transaction, on the basis of such information in\nviolation of such laws.\n3\n7.\nYou hereby represent and warrant to the Company that (a) you have all requisite power and authority to execute and deliver\nthis\nletter agreement and to perform your obligations hereunder, (b) this letter agreement has been duly authorized, executed and delivered by you,\nand is a valid and binding obligation, enforceable against you in accordance with its terms, (c) this letter agreement will not result in a violation\nof any terms or conditions of any agreements to which you are a party or by which you may otherwise be bound or of any law, rule, license,\nregulation, judgment, order or decree governing or affecting you, and (d) your entry into this letter agreement does not require approval by any\nowners or holders of any equity or other interest in you (except as has already been obtained).\n8. It is agreed that no delay or omission by the Company to exercise any right, power or remedy accruing to it upon any breach or\ndefault of any other party under this letter agreement shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any\nsuch breach or default, or any acquiescence therein, or of any similar breach or default thereafter occurring; nor shall any waiver by the Company\nof\nany\nsingle breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. It is further agreed that any\nwaiver, permit, consent or approval of any kind or character by the Company of any breach or default under this letter agreement, or any waiver\nby the Company of any provisions or conditions of this letter agreement must be in writing and shall be effective only to the extent specifically\nset forth in writing. Any permission, consent, or approval of any kind or character under this letter agreement shall be in writing and shall be\neffective only to the extent specifically set forth in such writing. The failure of the Company to insist upon strict adherence to any term of this\nletter agreement on one or more occasions shall not be considered a waiver or deprive the Company of the right thereafter to insist upon strict\nadherence to that term or any other term of this letter agreement.\n9.\nAll notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in\nregard hereto shall be in writing and shall be deemed validly given, made or served, if (a) given by email, when such email is sent to the email\naddress set forth below and the appropriate confirmation is received or (b) if given by any other means, when actually received during normal\nbusiness hours at the address specified in this paragraph:\nIf to the Company:\nAvon Products, Inc.\nBuilding 6, Chiswick Park\nLondon W4 5HR\nUnited Kingdom\nAttention: General Counsel\nEmail: james.thompson@avon.com\n4\nwith a copy (which will not constitute notice) to:\nCravath, Swaine & Moore LLP\nWorldwide Plaza\n825 Eighth Avenue\nNew York, NY 10019\nAttention: George F. Schoen, Esq.\nTing S. Chen, Esq.\nEmail:\ngschoen@cravath.com\ntchen@cravath.com\nIf to you:\nBarington Capital Group, L.P.\n888 Seventh Avenue, 6th Floor\nNew York, New York 10019\nAttention: James A. Mitarotonda\nEmail: jmitarotonda@barington.com\nwith a copy (which will not constitute notice) to:\nOlshan Frome & Wolosky LLP\n1325 Avenue of the Americas\nNew York NY 10019\nAttention: Steve Wolosky, Esq.\nAndrew M. Freedman, Esq.\nEmail:\nswolosky@olshanlaw.com\nafreedman@olshanlaw.com\n10.\nYou and your Representatives recognize and agree that the value of the Evaluation Material is unique and substantial, but may be\nimpractical or difficult to assess in monetary terms, and that, if for any reason any of the provisions of this letter agreement are not performed in\naccordance with their specific terms or are otherwise breached, immediate and irreparable harm or injury would be caused for which money\ndamages would not be an adequate remedy. Accordingly, you and your Representatives agree that in addition to other remedies the Company\nis\nentitled to at law or in equity, the Company shall be entitled to seek an injunction or injunctions to prevent breaches of this letter agreement\nand\nto enforce specifically the terms and provisions of this letter agreement, exclusively in the Supreme Court of the State of New York, New York\nCounty or the United States District Court for the Southern District of New York. In the event that any action shall be brought by the Company\nin equity to enforce the provisions of this letter agreement, neither you nor your Representative shall allege, and you and your Representative\nhereby waive the defense, that there is an adequate remedy at law. Furthermore, you and your Representatives irrevocably and unconditionally\n(a) consent to submit yourselves to the persona jurisdiction of the Supreme Court of the State of New York, New York County and the United\nStates District Court for the Southern District of New York in the event any dispute arises out of this letter agreement or the transactions\ncontemplated by this letter agreement, (b) agree that you shall not attempt to deny or defeat such personal jurisdiction by motion or other request\nfor leave from any such court, (c) agree that you shall not bring any action relating to this letter agreement or the transactions contemplated by\nthis\nletter agreement in any court other than the Supreme Court of the State of New York, New York County or the United States District Court\nfor the Southern District of New York, and waive the right to trial by jury, (d) agree to waive any bonding requirement under any applicable law,\nin the case that the Company seeks to enforce the terms by way of equitable relief and (e) consent to service of process by a reputable overnight\nmail delivery service, signature requested, to the address set forth in paragraph 9 or as otherwise provided by applicable law. THIS LETTER\nAGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE\nLAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN\nSUCH STATE, WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.\n5\n11. This letter agreement and the Nomination Agreement contain the entire understanding of the parties with respect to the subject\nmatter hereof and thereof and may be amended only by an agreement in writing executed by the party against whom enforcement of any such\namendment is sought.\n12.\nIf at any time subsequent to the date hereof, any provision of this letter agreement shall be held by any court of competent\njurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of such\nprovision shall have no effect upon the legality or enforceability of any other provision of this letter agreement.\n13. This letter agreement may be executed in two or more counterparts (and may be delivered in portable document format (.pdf)),\nall of which together shall constitute a single agreement.\n14.\nThe terms and conditions of this letter agreement will be binding upon, inure to the benefit of and be enforceable by the parties\nand their successors, heirs, executors and legal representatives. This letter agreement, and the rights and obligations herein, shall not be\nassignable or assigned, directly or indirectly, by operation of law or otherwise, by any of the parties hereto.\n15.\nThis letter agreement is solely for the benefit of the parties hereto and is not enforceable by any other persons.\n16. This letter agreement shall expire two years from the date on which the Designee ceases to be a director of the Company; except\nthat you and your Representatives shall maintain in accordance with the confidentiality obligations set forth herein any Evaluation Material\nconstituting trade secrets for such longer time as such information constitutes a trade secret of the Company as defined under 18 U.S.C.\n8 1839(3).\n6\n17.\nNo licenses or rights under any patent, copyright, trademark or trade secret are granted or are to be implied by this letter\nagreement.\n18.\nEach of the parties hereto and its counsel cooperated and participated in the drafting and preparation of this letter agreement and\nthe documents referred to herein, and any and all drafts relating thereto exchanged among the parties shall be deemed the work product of all of\nthe parties and may not be construed against any party by reason of its drafting or preparation. Accordingly, any rule of law or any legal decision\nthat would require interpretation of any ambiguities in this letter agreement against any party that drafted or prepared it is of no application and\nis\nhereby expressly waived by each of the parties and any controversy over interpretations of this letter agreement shall be decided without regard\nto events of drafting or preparation. The term "including" shall be deemed to mean "including without limitation" in all instances.\n[Signature Pages Follow]\n7\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon this\nletter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nAVON PRODUCTS, INC.\nBy: /s/ James Thompson\nName:James Thompson\nTitle: SVP & General Counsel\n[Signature Page to Confidentiality Agreement]\nJAMES A. MITAROTONDA, individually\n/s/ James A. Mitarotonda\nBARINGTON COMPANIES EQUITY\nPARTNERS, L.P.\nBy: Barington Companies Investors, LLC, its\ngeneral partner\nBy:/s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: Managing Member\nBARINGTON CAPITAL GROUP, L.P.\nBy: LNA Capital Corp. its general partner\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: President and CEO\nBARINGTON COMPANIES INVESTORS, LLC\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: Managing Member\nBARINGTON COMPANIES MANAGEMENT,\nLLC\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: Managing Member\n[Signature Page to Confidentiality Agreement]\nSCHEDULE A\nBARINGTON\n1.\nJames A. Mitarotonda\n2.\nBarington Companies Equity Partners, L.P.\n3.\nBarington Capital Group, L.P.\n4.\nBarington Companies Investors, LLC\n5.\nBarington Companies Management, LLC\nSCHEDULE B\n1.\nAny controlled affiliate of James A. Mitarotonda or Barington Capital Group, L.P., and full-time employees of Barington Capital\nGroup, L.P. and such affiliates.	EX-10 .2 3 ex10-2 .htm CONFIDENTIALITY AGREEMENT\nExhibit 10.2\nCONFIDENTIALITY AGREEMENT\nAvon Products, Inc.\nBuilding 6, Chiswick Park\nLondon W4 5HR\nUnited Kingdom\nMarch 26, 2018\nTo: Each of the persons listed on Schedule A hereto (“Barington” or “you”)\nLadies and Gentlemen:\nThis letter agreement shall become effective upon the appointment of the Designee to the Board of Directors (the “Board”) of\nAvon Products, Inc. (the “Company”). Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the\nNomination Agreement (the “Nomination Agreement”), dated as of March 26, 2018, among the Company, the Designee and the other parties\nthereto. The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement, including but not\nlimited to paragraph 2, the Designee may, if and to the extent he desires to do so, disclose information he obtains while serving as a member of\nthe Board to you and your Representatives (as hereinafter defined), and may discuss such information with any and all such persons, subject to\nthe terms and conditions of this letter agreement. As a result, you and your Representatives may receive certain non-public information regarding\nthe Company. You acknowledge that this information is proprietary to the Company and may include trade secrets or other business information\nthe disclosure of which could harm the Company. In consideration for, and as a condition of, the information being furnished to you and, subject\nto the restrictions in paragraph 2, the persons set forth on Schedule B hereto (collectively, the “Representatives”), you agree to treat any and all\ninformation concerning or relating to the Company or any of its subsidiaries or affiliates that is furnished to you or your Representatives\n(regardless of the manner in which it is furnished, including in written or electronic format or orally, gathered by visual inspection or otherwise)\nby the Designee, or by or on behalf of the Company, together with any notes, analyses, reports, models, compilations, studies, interpretations,\ndocuments, records or extracts thereof containing, referring, relating to, based upon or derived from such information, in whole or in part\n(collectively, “Evaluation Material”), in accordance with the provisions of this letter agreement, and to take or abstain from taking the other\nactions hereinafter set forth.\n1. The term “Evaluation Material” does not include information that (a) is or has become generally available to the public other than\nas a result of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement or any obligation of\nconfidentiality, (b) was within your or any of your Representatives’ possession on a non-confidential basis prior to its being furnished to you by\nthe Designee, or by or on behalf of the Company or its agents, representatives, attorneys, advisors, directors, officers or employees (collectively,\nthe “Company Representatives”), (c) is received from a source other than the Designee, the Company or any of the Company Representatives or\n(d) was independently developed by you or one of your Representatives without use of or reference to any Evaluation Material; provided, that in\nthe case of clause (c) above, the source of such information was not believed by you, after reasonable inquiry of the disclosing person, to be\nbound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other\nperson with respect to such information at the time the information was disclosed to you.\n1\n2. You and your Representatives will, and you will direct your Representatives to, (a) keep the Evaluation Material strictly\nconfidential and (b) not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company;\nprovided, however, that you may privately disclose any of such information: (i) to your Representatives (A) who need to know such information\nfor the sole purpose of advising you on your investment in the Company and (B) who are informed by you of the confidential nature of such\ninformation; provided, further, that you will be responsible for any violation of this letter agreement by your Representatives as if they were\nparties hereto; and (ii) to the Company and the Company Representatives. It is understood and agreed that the Designee shall not disclose to you\nor your Representatives any Legal Advice (as defined below) that may be included in the Evaluation Material with respect to which such\ndisclosure would constitute waiver of the Company’s attorney-client privilege or attorney work-product privilege. “Legal Advice” as used herein\nshall be solely and exclusively limited to the advice provided by legal counsel and shall not include factual information or the formulation or\nanalysis of business strategy that is not protected by the attorney client or attorney work product privilege.\n3. In the event that you or any of your Representatives are required by applicable subpoena, legal process or other legal requirement\nto disclose any of the Evaluation Material, you will promptly notify (except where such notice would be legally prohibited) the Company in\nwriting by email, facsimile and certified mail so that the Company may seek a protective order or other appropriate remedy (and if the Company\nseeks such an order, you will provide such cooperation as the Company shall reasonably request), at its cost and expense. Nothing herein shall be\ndeemed to prevent you or your Representatives, as the case may be, from honoring a subpoena, legal process or other legal requirement that\nrequires discovery, disclosure or production of the Evaluation Material if (a) you produce or disclose only that portion of the Evaluation Material\nwhich your outside legal counsel advises you is legally required to be so produced or disclosed and you inform the recipient of such Evaluation\nMaterial of the existence of this letter agreement and the confidential nature of such Evaluation Material; or (b) the Company consents in writing\nto having the Evaluation Material produced or disclosed pursuant to the subpoena, legal process or other legal requirement. In no event will you\nor any of your Representatives oppose action by the Company to obtain a protective order or other relief to prevent the disclosure of the\nEvaluation Material or to obtain reliable assurance that confidential treatment will be afforded the Evaluation Material. For the avoidance of\ndoubt, it is understood that there shall be no “legal requirement” requiring you to disclose any Evaluation Material solely by virtue of the fact\nthat, absent such disclosure, you would be prohibited from purchasing, selling or engaging in derivative or other voluntary transactions with\nrespect to the Common Stock of the Company or otherwise proposing or making an offer to do any of the foregoing, or you would be unable to\nfile any proxy materials in compliance with Section 14(a) of the Exchange Act or the rules promulgated thereunder.\n2\n4. You and your Representatives acknowledge that (a) none of the Company or any of the Company Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of any Evaluation Material, and (b) none of the Company or\nany of the Company Representatives shall have any liability to you or to any of your Representatives relating to or resulting from the use of the\nEvaluation Material or any errors therein or omissions therefrom. You and your Representatives (or anyone acting on your or their behalf) shall\nnot directly or indirectly initiate contact or communication with any executive or employee of, or advisor to, the Company other than the Chief\nExecutive Officer, the Chief Financial Officer, the General Counsel and/or such other persons approved in writing by the foregoing or the Board\nconcerning Evaluation Material, or to seek any information in connection therewith from any such person other than the foregoing, without the\nprior consent of the Company; provided, however, the restriction in this sentence shall not in any way apply to the Designee acting in his capacity\nas a Board member.\n5. All Evaluation Material shall remain the property of the Company. Neither you nor any of your Representatives shall by virtue of\nany disclosure of and/or your use of any Evaluation Material acquire any rights with respect thereto, all of which rights (including all intellectual\nproperty rights) shall remain exclusively with the Company. At any time after the date on which the Designee is no longer a director of the\nCompany, upon the written request of the Company for any reason, (a) you and your Representatives will promptly return to the Company or\ndestroy all hard copies of the Evaluation Material and use commercially reasonable efforts to erase or delete all electronic copies of the\nEvaluation Material in your or any of your Representatives’ possession or control, provided, however, that you and your Representatives will\nhave no obligation to delete Evaluation Material in electronic form that has been automatically backed up on you or your Representatives’\ncomputer servers, and (b) you shall promptly certify to the Company that such Evaluation Material has been erased or deleted, as the case may\nbe. Notwithstanding the return or erasure or deletion of Evaluation Material, you and your Representatives will continue to be bound by the\nobligations contained herein.\n6. You acknowledge, and will advise your Representatives, that the Evaluation Material may constitute material non-public\ninformation under applicable federal and state securities laws, and that you and your Representatives shall not, and you shall use your reasonable\nbest efforts to ensure that your Representatives, do not, trade or engage in any derivative or other transaction, on the basis of such information in\nviolation of such laws.\n3\n7. You hereby represent and warrant to the Company that (a) you have all requisite power and authority to execute and deliver this\nletter agreement and to perform your obligations hereunder, (b) this letter agreement has been duly authorized, executed and delivered by you,\nand is a valid and binding obligation, enforceable against you in accordance with its terms, (c) this letter agreement will not result in a violation\nof any terms or conditions of any agreements to which you are a party or by which you may otherwise be bound or of any law, rule, license,\nregulation, judgment, order or decree governing or affecting you, and (d) your entry into this letter agreement does not require approval by any\nowners or holders of any equity or other interest in you (except as has already been obtained).\n8. It is agreed that no delay or omission by the Company to exercise any right, power or remedy accruing to it upon any breach or\ndefault of any other party under this letter agreement shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any\nsuch breach or default, or any acquiescence therein, or of any similar breach or default thereafter occurring; nor shall any waiver by the Company\nof any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. It is further agreed that any\nwaiver, permit, consent or approval of any kind or character by the Company of any breach or default under this letter agreement, or any waiver\nby the Company of any provisions or conditions of this letter agreement must be in writing and shall be effective only to the extent specifically\nset forth in writing. Any permission, consent, or approval of any kind or character under this letter agreement shall be in writing and shall be\neffective only to the extent specifically set forth in such writing. The failure of the Company to insist upon strict adherence to any term of this\nletter agreement on one or more occasions shall not be considered a waiver or deprive the Company of the right thereafter to insist upon strict\nadherence to that term or any other term of this letter agreement.\n9. All notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in\nregard hereto shall be in writing and shall be deemed validly given, made or served, if (a) given by email, when such email is sent to the email\naddress set forth below and the appropriate confirmation is received or (b) if given by any other means, when actually received during normal\nbusiness hours at the address specified in this paragraph:\nIf to the Company:\nAvon Products, Inc.\nBuilding 6, Chiswick Park\nLondon W4 5HR\nUnited Kingdom\nAttention: General Counsel\nEmail:\njames.thompson@avon.com\n4\nwith a copy (which will not constitute notice) to:\nCravath, Swaine & Moore LLP\nWorldwide Plaza\n825 Eighth Avenue\nNew York, NY 10019\nAttention: George F. Schoen, Esq.\nTing S. Chen, Esq.\nEmail:\ngschoen@cravath.com\ntchen@cravath.com\nIf to you:\nBarington Capital Group, L.P.\n888 Seventh Avenue, 6th Floor\nNew York, New York 10019\nAttention: James A. Mitarotonda\nEmail:\njmitarotonda@barington.com\nwith a copy (which will not constitute notice) to:\nOlshan Frome & Wolosky LLP\n1325 Avenue of the Americas\nNew York NY 10019\nAttention: Steve Wolosky, Esq.\nAndrew M. Freedman, Esq.\nEmail:\nswolosky@olshanlaw.com\nafreedman@olshanlaw.com\n10. You and your Representatives recognize and agree that the value of the Evaluation Material is unique and substantial, but may be\nimpractical or difficult to assess in monetary terms, and that, if for any reason any of the provisions of this letter agreement are not performed in\naccordance with their specific terms or are otherwise breached, immediate and irreparable harm or injury would be caused for which money\ndamages would not be an adequate remedy. Accordingly, you and your Representatives agree that in addition to other remedies the Company is\nentitled to at law or in equity, the Company shall be entitled to seek an injunction or injunctions to prevent breaches of this letter agreement and\nto enforce specifically the terms and provisions of this letter agreement, exclusively in the Supreme Court of the State of New York, New York\nCounty or the United States District Court for the Southern District of New York. In the event that any action shall be brought by the Company\nin equity to enforce the provisions of this letter agreement, neither you nor your Representative shall allege, and you and your Representative\nhereby waive the defense, that there is an adequate remedy at law. Furthermore, you and your Representatives irrevocably and unconditionally\n(a) consent to submit yourselves to the personal jurisdiction of the Supreme Court of the State of New York, New York County and the United\nStates District Court for the Southern District of New York in the event any dispute arises out of this letter agreement or the transactions\ncontemplated by this letter agreement, (b) agree that you shall not attempt to deny or defeat such personal jurisdiction by motion or other request\nfor leave from any such court, (c) agree that you shall not bring any action relating to this letter agreement or the transactions contemplated by\nthis letter agreement in any court other than the Supreme Court of the State of New York, New York County or the United States District Court\nfor the Southern District of New York, and waive the right to trial by jury, (d) agree to waive any bonding requirement under any applicable law,\nin the case that the Company seeks to enforce the terms by way of equitable relief and (e) consent to service of process by a reputable overnight\nmail delivery service, signature requested, to the address set forth in paragraph 9 or as otherwise provided by applicable law. THIS LETTER\nAGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE\nLAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED WHOLLY WITHIN\nSUCH STATE, WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES OF SUCH STATE.\n5\n11. This letter agreement and the Nomination Agreement contain the entire understanding of the parties with respect to the subject\nmatter hereof and thereof and may be amended only by an agreement in writing executed by the party against whom enforcement of any such\namendment is sought.\n12. If at any time subsequent to the date hereof, any provision of this letter agreement shall be held by any court of competent\njurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of such\nprovision shall have no effect upon the legality or enforceability of any other provision of this letter agreement.\n13. This letter agreement may be executed in two or more counterparts (and may be delivered in portable document format (.pdf)),\nall of which together shall constitute a single agreement.\n14. The terms and conditions of this letter agreement will be binding upon, inure to the benefit of and be enforceable by the parties\nand their successors, heirs, executors and legal representatives. This letter agreement, and the rights and obligations herein, shall not be\nassignable or assigned, directly or indirectly, by operation of law or otherwise, by any of the parties hereto.\n15. This letter agreement is solely for the benefit of the parties hereto and is not enforceable by any other persons.\n16. This letter agreement shall expire two years from the date on which the Designee ceases to be a director of the Company; except\nthat you and your Representatives shall maintain in accordance with the confidentiality obligations set forth herein any Evaluation Material\nconstituting trade secrets for such longer time as such information constitutes a trade secret of the Company as defined under 18 U.S .C .\n§ 1839(3).\n6\n17. No licenses or rights under any patent, copyright, trademark or trade secret are granted or are to be implied by this letter\nagreement.\n18. Each of the parties hereto and its counsel cooperated and participated in the drafting and preparation of this letter agreement and\nthe documents referred to herein, and any and all drafts relating thereto exchanged among the parties shall be deemed the work product of all of\nthe parties and may not be construed against any party by reason of its drafting or preparation. Accordingly, any rule of law or any legal decision\nthat would require interpretation of any ambiguities in this letter agreement against any party that drafted or prepared it is of no application and is\nhereby expressly waived by each of the parties , and any controversy over interpretations of this letter agreement shall be decided without regard\nto events of drafting or preparation. The term “including” shall be deemed to mean “including without limitation” in all instances.\n[Signature Pages Follow]\n7\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon this\nletter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nAVON PRODUCTS, INC.\nBy: /s/ James Thompson\nName:James Thompson\nTitle: SVP & General Counsel\n[Signature Page to Confidentiality Agreement]\nJAMES A. MITAROTONDA, individually\n/s/ James A. Mitarotonda\nBARINGTON COMPANIES EQUITY\nPARTNERS, L.P.\nBy: Barington Companies Investors, LLC, its\ngeneral partner\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: Managing Member\nBARINGTON CAPITAL GROUP, L.P.\nBy: LNA Capital Corp., its general partner\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: President and CEO\nBARINGTON COMPANIES INVESTORS, LLC\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: Managing Member\nBARINGTON COMPANIES MANAGEMENT,\nLLC\nBy: /s/ James A. Mitarotonda\nName: James A. Mitarotonda\nTitle: Managing Member\n[Signature Page to Confidentiality Agreement]\nSCHEDULE A\nBARINGTON\n1. James A. Mitarotonda\n2. Barington Companies Equity Partners, L.P.\n3. Barington Capital Group, L.P.\n4. Barington Companies Investors, LLC\n5. Barington Companies Management, LLC\n1. Any controlled affiliate of James A. Mitarotonda or Barington Capital Group, L.P., and full-time employees of Barington Capital\nGroup, L.P. and such affiliates.\nSCHEDULE B
+b2260589869814f02769a4c307593043.pdf	effective_date jurisdiction party term	EX-99.(E)(4) 4 dex99e4.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(4)\nLOGO\nMatthew M. Bennett\nExecutive Vice President,\nGeneral Counsel and Business Development\nApril 19, 2007\nCardinal Health, Inc.\n7000 Cardinal Place\nDublin, OH 43017\nAttn: JV Wulf\nRe: Confidentiality Agreement (this “Agreement”)\nLadies and Gentlemen:\nIn connection with your consideration of a possible acquisition (the “Transaction”) of VIASYS Healthcare Inc. (the “Company”), you have\nrequested the right to review certain non-public information regarding the Company. In consideration of, and as a condition to, furnishing you with\nsuch information and any other information (whether in oral or written form, electronically stored or otherwise) delivered to you by us or any of our\naffiliates, directors, officers, employees, advisors, agents, representatives or “controlling persons” (within the meaning of the Securities Exchange\nAct of 1934, as amended (the “1934 Act”)) (such persons for either you or the Company being herein referred to collectively as “Representatives”)\nin connection with your consideration of a Transaction (such information being herein referred to as “Evaluation Material”), the Company hereby\nrequests your agreement as follows:\n1. You and your Representatives (i) will use the Evaluation Material solely for the purpose of evaluating and, if applicable, negotiating a\npossible Transaction with the Company involving you or your affiliates (the “Permitted Purpose”) and (ii) will keep the Evaluation\nMaterial strictly confidential and will not (except as requested pursuant to, or required by applicable law, regulation or legal process,\nincluding without limitation the rules and regulations of the New York Stock Exchange (the “NYSE Rules”), and only after compliance\nwith paragraph 3 below), without the Company’s prior written consent, disclose any information in the Evaluation Material, except that\nthe Evaluation Material (or portions thereof) may be disclosed to those of your Representatives who need to know such information for\nthe Permitted Purpose (it being understood that prior to such disclosure your Representatives will be informed of the confidential nature\nof the Evaluation Material and shall be instructed to comply with the terms of this Agreement). You agree to be responsible for any\nbreach of this Agreement by your Representatives.\n2. The term “Evaluation Material” does not include any information which (i) at the time of disclosure or thereafter is generally known by\nthe public (other than as a result of its disclosure by you or your Representatives in violation of this Agreement) or (ii) was or becomes\navailable to you on a non-confidential basis from a person who, to your knowledge after reasonable inquiry, is not otherwise\nbound by a confidentiality agreement with the Company or its Representatives or otherwise prohibited from transmitting the information\nto you or (iii) was or is developed or discovered by you or your Representatives without reference to the Evaluation Material. Evaluation\nMaterial includes both information previously provided to you and information provided to you in the future. As used in this Agreement,\nthe term “person” shall be broadly interpreted to include, without limitation, any corporation, company, joint venture, partnership or\nindividual.\n3. In the event that you receive a request or are required to disclose all or any part of the information contained in the Evaluation Material\npursuant to the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a federal, state or local\ngovernmental or regulatory body or pursuant to a civil investigative demand or similar judicial process or pursuant to the NYSE Rules,\nyou agree (to the extent permitted by law and the NYSE Rules) to (i) immediately notify the Company of the existence, terms and\ncircumstances surrounding such a request or requirement, (ii) consult with the Company on the advisability of taking legally available\nsteps (at the Company’s expense with respect to out-of-pocket costs) to resist or narrow such request or requirement, and (iii) if\ndisclosure of such information is required, disclose any such information which you are advised by legal counsel is legally required (or\nrequired under the NYSE Rules) to be disclosed and you will exercise your reasonable best efforts (at the Company’s expense with\nrespect to out-of-pocket costs) to obtain an order or other reliable assurance that confidential treatment will be accorded to such\ninformation.\n4. Unless otherwise required by law or the NYSE Rules in the opinion of your counsel, neither you nor your Representatives will, without\nthe Company’s prior written consent, disclose to any person either the fact that discussions or negotiations are taking place concerning a\npossible Transaction between the Company and you, or any of the terms, conditions or other facts with respect to any such possible\nTransaction, including, without limitation, the status thereof and the fact that the Evaluation Material has been made available to you.\nThe Company will not, without your prior written consent, disclose to any person (other than its Representatives) the fact that the\nEvaluation Material has been made available to you, that you are considering the Transaction involving the Company, or that discussions\nor negotiations are taking or have taken place with you concerning the Transaction or involving you or any term, condition or other fact\nrelating to the Transaction from which a person could be reasonably expected to identify you.\n5. Until the earlier of the consummation by you of a Transaction and 18 months from the date of this Agreement, you agree, and you agree\nto cause your affiliates (used herein with the meaning set forth in Rule 12b-2 of the Securities Exchange Act of 1934 (the “Exchange\nAct”)), not to, directly or indirectly, solicit for purposes of employment, offer to hire, entice away, or offer to enter into any employment,\nconsulting (or similar) contract with any employee of the Company or any of its subsidiaries with whom you have had contact or who\nbecame known\n2\nto you in reasonable detail in connection with the Permitted Purpose, or otherwise solicit, induce or otherwise encourage any such person\nto discontinue, cancel or refrain from entering into any relationship (contractual or otherwise) with the Company without the Company’s\nprior written consent, provided, however, that the foregoing provision will not prevent you from (i) employing or engaging any such\nperson who contacts you on his or her own initiative without any direct or indirect solicitation by or encouragement from you or\n(ii) engaging in general solicitations not specifically targeted at such persons or employing or engaging any such person who contacts\nyou in response to such general solicitation or (iii) employing or engaging any such person who no longer works for the Company at the\ntime you first commence employment discussions with such person.\n6. Unless otherwise instructed by the Company or its Representatives or agreed to by the Company in writing (for purposes of clarity,\nincluding electronic mail), all (i) communications regarding any possible Transaction, (ii) requests for additional information,\n(iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding procedures, will be submitted or\ndirected to Matthew M. Bennett, Executive Vice President, General Counsel and Business.\n7. For a period of one year from the date of this Agreement, you and your Representatives, on your or your affiliates’ behalf, shall not,\ndirectly or indirectly, and you shall cause any person or entity controlled by you not to, without the prior written consent of the Board of\nDirectors of the Company, (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, any\nsecurities or property of the Company or any of its affiliates (other than property to be transferred in the ordinary course of your and the\nCompany’s businesses), (ii) propose to enter into, directly or indirectly, any merger, consolidation, recapitalization, business\ncombination, partnership, joint venture (other than in the ordinary course of your and the Company’s businesses) or other similar\ntransaction involving the Company or any of its affiliates, (iii) make, or in any way participate in any “solicitation” of “proxies” (as such\nterms are used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with\nrespect to the voting of any voting securities of the Company or any of its affiliates, (iv) form, join or in any way participate in a “group”\n(within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of the Company or any of its\naffiliates, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or\npolicies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) advise, assist or\nencourage any other persons in connection with any of the foregoing. You also agree during such period not to (x) request the Company\n(or Company Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence),\n(y) take any action which would require the Company or any of its affiliates to make a public announcement regarding this Agreement or\nthe possibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, the\nTransaction, or (z) communicate with the Company’s shareholders regarding the subject matter of\n3\nthis Agreement. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained in this paragraph shall prohibit internal\nactions among you and your Representatives. Further notwithstanding the foregoing, the limitations and prohibitions on you set forth in\nthis paragraph shall no longer apply from the earliest of (1) the date the Company enters into an agreement with a third party other than\nyou which provides for an acquisition of, or business combination with, the Company where either the Company would not be the\nsurviving entity as a public company or where such third party (or such third party’s stockholders) would be acquiring at least fifty\npercent or more of the common equity of the Company (or the entity resulting from the transaction) or the assets of the Company, or\n(2) after the date of this Agreement, the date a third party commences or publicly announces its intent to commence a tender offer to\nacquire, or acquires, “beneficial ownership” (as such term is defined under the Exchange Act) of fifty percent or more of the common\nequity of the Company or the Board of Directors of the Company (or any committee thereof) recommends publicly that its stockholders\ntender to a third party proposing to acquire beneficial ownership of fifty percent or more of the common equity of the Company. In\naddition, nothing in this paragraph shall limit your ability to make oral or written proposals to the Board of Directors or Chief Executive\nOfficer of the Company regarding any potential transaction involving you and the Company so long as such proposals do not give rise to\nany reasonable concern that public disclosure of such proposal or proposals is or will be required by applicable law or the NYSE Rules.\n8. Each party hereby acknowledges that it is aware, and that it will advise its Representatives who are informed as to the matters which are\nthe subject of this Agreement, that the United States securities laws prohibit any person who has material, non-public information of an\nissuer concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer (and options,\nwarrants and rights relating thereto) and from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n9. This Agreement does not constitute or create any obligation of the Company to provide any Evaluation Material or other information to\nyou, but merely defines the duties and obligations of the parties hereto and their respective Representatives with respect to the matters\naddressed herein to the extent Evaluation Material may be disclosed or made available. Under no circumstances is the Company\nobligated to disclose or make available any information, including any Evaluation Material, which in its sole and absolute discretion it\ndetermines not to disclose. You understand and acknowledge that neither the Company nor any of our Representatives is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information\nprovided to you by the Company or any of our Representatives. Neither the Company nor any of our Representatives, nor any of our\nrespective officers, directors, employees, agents or controlling persons (within the meaning of the Exchange Act) shall have any liability\nto you or any other\n4\nperson (including, without limitation, any of your Representatives) resulting from your use of the Evaluation Material except as and to\nthe extent set forth in a definitive agreement, if any, between the Company and you with respect to any Transaction that has been\nexecuted and delivered.\n10. You and the Company agree that unless and until a definitive agreement between the Company and you with respect to any Transaction\nhas been executed and delivered, neither you nor the Company will be under any legal obligation of any kind whatsoever with respect to\nsuch a Transaction by virtue of (i) this Agreement or (ii) any written or oral expression with respect to such a Transaction by you or the\nCompany or your respective directors, officers, employees, agents, advisors or Representatives.\n11. You agree that the Company has not granted you any license, copyright, or similar right with respect to any of the Evaluation Material or\nany other information provided to you by the Company or any of our Representatives.\n12. If you determine that you do not wish to proceed with the Transaction, you will promptly advise the Company in writing of that decision.\nIn that case, or in the event that, (i) a Transaction is not consummated by you or (ii) at any time the Company requests, you will\npromptly, at your option, (a) deliver to us all of the Evaluation Material, including all copies, reproductions, summaries, analyses or\nextracts thereof or based thereon in your possession or in the possession of any of your Representatives (such delivery to be certified by\nyou) or (b) destroy all Evaluation Material in your possession or in the possession of any of your Representatives (such destruction to be\ncertified by you).\n13. You and the Company acknowledge that remedies at law may be inadequate to protect the other party against any actual or threatened\nbreach of this letter agreement by you or by your Representatives, on the one hand, and by us or our Representatives, on the other, and,\nwithout prejudice to any other rights and remedies otherwise available, you and we agree to the granting of specific performance and\ninjunctive or other equitable relief in the other party’s favor without proof of actual damages and we each further agree to waive, and to\nuse all reasonable efforts to cause our respective Representatives to waive, any requirement for the securing or posting of any bond in\nconnection with any such remedy.\n14. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the\nState of New York applicable to agreements made and to be fully performed therein (excluding the conflicts of laws rules). You and the\nCompany irrevocably (i) submit to the jurisdiction of any court of the State of New York or the United State District Court for the\nSouthern District of the State of New York for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any\nof the agreements or transactions contemplated hereby (each a “Proceeding”), (ii) agree that all claims in respect of any Proceeding may\nbe heard and determined in any\n5\nsuch court, and (iii) waive, to the fullest extent permitted by law, any immunity a party may have acquired, or hereafter may acquire,\nfrom jurisdiction of any such court or from any legal process therein, and (iv) agree not to commence any Proceeding other than in such\ncourt, and waive, to the fullest extent permitted by applicable law, any claim that any such Proceeding is brought in an inconvenient\nforum.\n15. The benefits of this Agreement shall inure to the respective successors and assigns of the parties hereto and their successors and assigns\nand Representatives, and the obligations and liabilities assumed in this Agreement by the parties hereto shall be binding upon their\nrespective successors and assigns.\n16. If it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is\ninvalid or unenforceable, (i) the remaining terms and provision hereof shall be unimpaired and shall remain in full force and effect and\n(ii) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes\nclosest to expressing the intention of such invalid or unenforceable term or provision.\n17. This Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements,\narrangements and understandings relating to the matters provided for herein. No alteration, waiver, amendment, change or supplement\nhereto shall be binding or effective unless the same is set forth in writing signed by a duly authorized representative of each party and\nmay be modified or waived only by a separate letter executed by the Company and you expressly so modifying or waiving such\nAgreement.\n18. For the convenience of the parties, any number of counterparts of this Agreement may be executed by the parties hereto. Each such\ncounterpart shall be, and shall be deemed to be, an original instrument, but all such counterparts taken together shall constitute one and\nthe same Agreement. Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in “portable document\nformat” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document,\nwill have the same effect as physical delivery of the paper document bearing the original signature.\n19. Except as may otherwise be provided herein, the restrictions and covenants set forth herein shall terminate and be of no further force or\neffect upon the expiration of a period of two years from the date hereof.\n[SIGNATURE PAGE FOLLOWS]\n6\nThis Agreement is being delivered to you in duplicate. Kindly execute and return one copy of this letter which will constitute our Agreement\nwith respect to the subject matter of this letter.\nVery truly yours,\nVIASYS HEALTHCARE INC.\nBy: /s/ RANDY H. THURMAN\nName: Randy H. Thurman\nTitle: Chief Executive Officer\nConfirmed and Agreed to\nas of the date first written above:\nCARDINAL HEALTH, INC.\nBy: /s/ JV WULF\nName: JV Wulf\nTitle: SVP-Corporate Development\n7	EX-99.(E)(4) 4 dex99e4.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(4)\n».LOGO\nMatthew M. Bennett\nExecutive Vice President,\nGeneral Counsel and Business Development\nApril 19, 2007\nCardinal Health, Inc.\n7000 Cardinal Place\nDublin, OH 43017\nAttn: JV Wulf\nRe: Confidentiality Agreement (this “Agreement”)\nLadies and Gentlemen:\nIn connection with your consideration of a possible acquisition (the “Transaction”) of VIASYS Healthcare Inc. (the “Company”), you have\nrequested the right to review certain non-public information regarding the Company. In consideration of, and as a condition to, furnishing you with\nsuch information and any other information (whether in oral or written form, electronically stored or otherwise) delivered to you by us or any of our\naffiliates, directors, officers, employees, advisors, agents, representatives or “controlling persons” (within the meaning of the Securities Exchange\nAct of 1934, as amended (the “1934 Act”)) (such persons for either you or the Company being herein referred to collectively as “Representatives”)\nin connection with your consideration of a Transaction (such information being herein referred to as “Evaluation Material”), the Company hereby\nrequests your agreement as follows:\n1. You and your Representatives (i) will use the Evaluation Material solely for the purpose of evaluating and, if applicable, negotiating a\npossible Transaction with the Company involving you or your affiliates (the “Permitted Purpose”) and (ii) will keep the Evaluation\nMaterial strictly confidential and will not (except as requested pursuant to, or required by applicable law, regulation or legal process,\nincluding without limitation the rules and regulations of the New York Stock Exchange (the “NYSE Rules”), and only after compliance\nwith paragraph 3 below), without the Company’s prior written consent, disclose any information in the Evaluation Material, except that\nthe Evaluation Material (or portions thereof) may be disclosed to those of your Representatives who need to know such information for\nthe Permitted Purpose (it being understood that prior to such disclosure your Representatives will be informed of the confidential nature\nof the Evaluation Material and shall be instructed to comply with the terms of this Agreement). You agree to be responsible for any\nbreach of this Agreement by your Representatives.\n2. The term “Evaluation Material” does not include any information which (i) at the time of disclosure or thereafter is generally known by\nthe public (other than as a result of its disclosure by you or your Representatives in violation of this Agreement) or (ii) was or becomes\navailable to you on a non-confidential basis from a person who, to your knowledge after reasonable inquiry, is not otherwise\nbound by a confidentiality agreement with the Company or its Representatives or otherwise prohibited from transmitting the information\nto you or (iii) was or is developed or discovered by you or your Representatives without reference to the Evaluation Material. Evaluation\nMaterial includes both information previously provided to you and information provided to you in the future. As used in this Agreement,\nthe term “person” shall be broadly interpreted to include, without limitation, any corporation, company, joint venture, partnership or\nindividual.\nIn the event that you receive a request or are required to disclose all or any part of the information contained in the Evaluation Material\npursuant to the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a federal, state or local\ngovernmental or regulatory body or pursuant to a civil investigative demand or similar judicial process or pursuant to the NYSE Rules,\nyou agree (to the extent permitted by law and the NYSE Rules) to (i) immediately notify the Company of the existence, terms and\ncircumstances surrounding such a request or requirement, (ii) consult with the Company on the advisability of taking legally available\nsteps (at the Company’s expense with respect to out-of-pocket costs) to resist or narrow such request or requirement, and (iii) if\ndisclosure of such information is required, disclose any such information which you are advised by legal counsel is legally required (or\nrequired under the NYSE Rules) to be disclosed and you will exercise your reasonable best efforts (at the Company’s expense with\nrespect to out-of-pocket costs) to obtain an order or other reliable assurance that confidential treatment will be accorded to such\ninformation.\nUnless otherwise required by law or the NYSE Rules in the opinion of your counsel, neither you nor your Representatives will, without\nthe Company’s prior written consent, disclose to any person either the fact that discussions or negotiations are taking place concerning a\npossible Transaction between the Company and you, or any of the terms, conditions or other facts with respect to any such possible\nTransaction, including, without limitation, the status thereof and the fact that the Evaluation Material has been made available to you.\nThe Company will not, without your prior written consent, disclose to any person (other than its Representatives) the fact that the\nEvaluation Material has been made available to you, that you are considering the Transaction involving the Company, or that discussions\nor negotiations are taking or have taken place with you concerning the Transaction or involving you or any term, condition or other fact\nrelating to the Transaction from which a person could be reasonably expected to identify you.\nUntil the earlier of the consummation by you of a Transaction and 18 months from the date of this Agreement, you agree, and you agree\nto cause your affiliates (used herein with the meaning set forth in Rule 12b-2 of the Securities Exchange Act of 1934 (the “Exchange\nAct”)), not to, directly or indirectly, solicit for purposes of employment, offer to hire, entice away, or offer to enter into any employment,\nconsulting (or similar) contract with any employee of the Company or any of its subsidiaries with whom you have had contact or who\nbecame known\nto you in reasonable detail in connection with the Permitted Purpose, or otherwise solicit, induce or otherwise encourage any such person\nto discontinue, cancel or refrain from entering into any relationship (contractual or otherwise) with the Company without the Company’s\nprior written consent, provided, however, that the foregoing provision will not prevent you from (i) employing or engaging any such\nperson who contacts you on his or her own initiative without any direct or indirect solicitation by or encouragement from you or\n(ii) engaging in general solicitations not specifically targeted at such persons or employing or engaging any such person who contacts\nyou in response to such general solicitation or (iii) employing or engaging any such person who no longer works for the Company at the\ntime you first commence employment discussions with such person.\nUnless otherwise instructed by the Company or its Representatives or agreed to by the Company in writing (for purposes of clarity,\nincluding electronic mail), all (i) communications regarding any possible Transaction, (ii) requests for additional information,\n(iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding procedures, will be submitted or\ndirected to Matthew M. Bennett, Executive Vice President, General Counsel and Business.\nFor a period of one year from the date of this Agreement, you and your Representatives, on your or your affiliates’ behalf, shall not,\ndirectly or indirectly, and you shall cause any person or entity controlled by you not to, without the prior written consent of the Board of\nDirectors of the Company, (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, any\nsecurities or property of the Company or any of its affiliates (other than property to be transferred in the ordinary course of your and the\nCompany’s businesses), (ii) propose to enter into, directly or indirectly, any merger, consolidation, recapitalization, business\ncombination, partnership, joint venture (other than in the ordinary course of your and the Company’s businesses) or other similar\ntransaction involving the Company or any of its affiliates, (iii) make, or in any way participate in any “solicitation” of “proxies” (as such\nterms are used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with\nrespect to the voting of any voting securities of the Company or any of its affiliates, (iv) form, join or in any way participate in a “group”\n(within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of the Company or any of its\naffiliates, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or\npolicies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) advise, assist or\nencourage any other persons in connection with any of the foregoing. You also agree during such period not to (x) request the Company\n(or Company Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence),\n(y) take any action which would require the Company or any of its affiliates to make a public announcement regarding this Agreement or\nthe possibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, the\nTransaction, or (z) communicate with the Company’s shareholders regarding the subject matter of\n3\nthis Agreement. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained in this paragraph shall prohibit internal\nactions among you and your Representatives. Further notwithstanding the foregoing, the limitations and prohibitions on you set forth in\nthis paragraph shall no longer apply from the earliest of (1) the date the Company enters into an agreement with a third party other than\nyou which provides for an acquisition of, or business combination with, the Company where either the Company would not be the\nsurviving entity as a public company or where such third party (or such third party’s stockholders) would be acquiring at least fifty\npercent or more of the common equity of the Company (or the entity resulting from the transaction) or the assets of the Company, or\n(2) after the date of this Agreement, the date a third party commences or publicly announces its intent to commence a tender offer to\nacquire, or acquires, “beneficial ownership” (as such term is defined under the Exchange Act) of fifty percent or more of the common\nequity of the Company or the Board of Directors of the Company (or any committee thereof) recommends publicly that its stockholders\ntender to a third party proposing to acquire beneficial ownership of fifty percent or more of the common equity of the Company. In\naddition, nothing in this paragraph shall limit your ability to make oral or written proposals to the Board of Directors or Chief Executive\nOfficer of the Company regarding any potential transaction involving you and the Company so long as such proposals do not give rise to\nany reasonable concern that public disclosure of such proposal or proposals is or will be required by applicable law or the NYSE Rules.\nEach party hereby acknowledges that it is aware, and that it will advise its Representatives who are informed as to the matters which are\nthe subject of this Agreement, that the United States securities laws prohibit any person who has material, non-public information of an\nissuer concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer (and options,\nwarrants and rights relating thereto) and from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\nThis Agreement does not constitute or create any obligation of the Company to provide any Evaluation Material or other information to\nyou, but merely defines the duties and obligations of the parties hereto and their respective Representatives with respect to the matters\naddressed herein to the extent Evaluation Material may be disclosed or made available. Under no circumstances is the Company\nobligated to disclose or make available any information, including any Evaluation Material, which in its sole and absolute discretion it\ndetermines not to disclose. You understand and acknowledge that neither the Company nor any of our Representatives is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information\nprovided to you by the Company or any of our Representatives. Neither the Company nor any of our Representatives, nor any of our\nrespective officers, directors, employees, agents or controlling persons (within the meaning of the Exchange Act) shall have any liability\nto you or any other\n10. 11. 12. 13. 14. person (including, without limitation, any of your Representatives) resulting from your use of the Evaluation Material except as and to\nthe extent set forth in a definitive agreement, if any, between the Company and you with respect to any Transaction that has been\nexecuted and delivered.\nYou and the Company agree that unless and until a definitive agreement between the Company and you with respect to any Transaction\nhas been executed and delivered, neither you nor the Company will be under any legal obligation of any kind whatsoever with respect to\nsuch a Transaction by virtue of (i) this Agreement or (ii) any written or oral expression with respect to such a Transaction by you or the\nCompany or your respective directors, officers, employees, agents, advisors or Representatives.\nYou agree that the Company has not granted you any license, copyright, or similar right with respect to any of the Evaluation Material or\nany other information provided to you by the Company or any of our Representatives.\nIf you determine that you do not wish to proceed with the Transaction, you will promptly advise the Company in writing of that decision.\nIn that case, or in the event that, (i) a Transaction is not consummated by you or (ii) at any time the Company requests, you will\npromptly, at your option, (a) deliver to us all of the Evaluation Material, including all copies, reproductions, summaries, analyses or\nextracts thereof or based thereon in your possession or in the possession of any of your Representatives (such delivery to be certified by\nyou) or (b) destroy all Evaluation Material in your possession or in the possession of any of your Representatives (such destruction to be\ncertified by you).\nYou and the Company acknowledge that remedies at law may be inadequate to protect the other party against any actual or threatened\nbreach of this letter agreement by you or by your Representatives, on the one hand, and by us or our Representatives, on the other, and,\nwithout prejudice to any other rights and remedies otherwise available, you and we agree to the granting of specific performance and\ninjunctive or other equitable relief in the other party’s favor without proof of actual damages and we each further agree to waive, and to\nuse all reasonable efforts to cause our respective Representatives to waive, any requirement for the securing or posting of any bond in\nconnection with any such remedy.\nThe validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the\nState of New York applicable to agreements made and to be fully performed therein (excluding the conflicts of laws rules). You and the\nCompany irrevocably (i) submit to the jurisdiction of any court of the State of New York or the United State District Court for the\nSouthern District of the State of New York for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any\nof the agreements or transactions contemplated hereby (each a “Proceeding™), (ii) agree that all claims in respect of any Proceeding may\nbe heard and determined in any\n15. 16. 17. 18. 19. such court, and (iii) waive, to the fullest extent permitted by law, any immunity a party may have acquired, or hereafter may acquire,\nfrom jurisdiction of any such court or from any legal process therein, and (iv) agree not to commence any Proceeding other than in such\ncourt, and waive, to the fullest extent permitted by applicable law, any claim that any such Proceeding is brought in an inconvenient\nforum.\nThe benefits of this Agreement shall inure to the respective successors and assigns of the parties hereto and their successors and assigns\nand Representatives, and the obligations and liabilities assumed in this Agreement by the parties hereto shall be binding upon their\nrespective successors and assigns.\nIf it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is\ninvalid or unenforceable, (i) the remaining terms and provision hereof shall be unimpaired and shall remain in full force and effect and\n(ii) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes\nclosest to expressing the intention of such invalid or unenforceable term or provision.\nThis Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements,\narrangements and understandings relating to the matters provided for herein. No alteration, waiver, amendment, change or supplement\nhereto shall be binding or effective unless the same is set forth in writing signed by a duly authorized representative of each party and\nmay be modified or waived only by a separate letter executed by the Company and you expressly so modifying or waiving such\nAgreement.\nFor the convenience of the parties, any number of counterparts of this Agreement may be executed by the parties hereto. Each such\ncounterpart shall be, and shall be deemed to be, an original instrument, but all such counterparts taken together shall constitute one and\nthe same Agreement. Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in “portable document\nformat” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document,\nwill have the same effect as physical delivery of the paper document bearing the original signature.\nExcept as may otherwise be provided herein, the restrictions and covenants set forth herein shall terminate and be of no further force or\neffect upon the expiration of a period of two years from the date hereof.\n[SIGNATURE PAGE FOLLOWS]\n6\nThis Agreement is being delivered to you in duplicate. Kindly execute and return one copy of this letter which will constitute our Agreement with respect to the subject matter of this letter. Confirmed and Agreed to\nas of the date first written above:\nCARDINAL HEALTH, INC.\nBy: /s/ ]V WULF\nName: JV Wulf\nTitle: SVP-Corporate Development\nVery truly yours,\nVIASYS HEALTHCARE INC.\nBy: /s/ RANDY H. THURMAN\nName: Randy H. Thurman\nTitle: Chief Executive Officer	EX-99.(E)(4) 4 dex99e4.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(4)\nLOGO\nMatthew M. Bennett\nExecutive Vice President,\nGeneral Counsel and Business Development\nApril 19, 2007\nCardinal Health, Inc.\n7000 Cardinal Place\nDublin, OH 43017\nAttn: JV Wulf\nRe: Confidentiality Agreement (this "Agreement")\nLadies and Gentlemen:\nIn connection with your consideration of a possible acquisition (the "Transaction") of VIASYS Healthcare Inc. (the "Company"), you have\nrequested the right to review certain non-public information regarding the Company. In consideration of, and as a condition to, furnishing you with\nsuch information and any other information (whether in oral or written form, electronically stored or otherwise) delivered to you by us or any of our\naffiliates, directors, officers, employees, advisors, agents, representatives or "controlling persons" (within the meaning of the Securities Exchange\nAct of 1934, as amended (the "1934 Act")) (such persons for either you or the Company being herein referred to collectively as "Representatives")\nin connection with your consideration of a Transaction (such information being herein referred to as "Evaluation Material"), the Company hereby\nrequests your agreement as follows:\n1.\nYou and your Representatives (i) will use the Evaluation Material solely for the purpose of evaluating and, if applicable, negotiating a\npossible Transaction with the Company involving you or your affiliates (the "Permitted Purpose") and (ii) will keep the Evaluation\nMaterial strictly confidential and will not (except as requested pursuant to, or required by applicable law, regulation or legal process,\nincluding without limitation the rules and regulations of the New York Stock Exchange (the "NYSE Rules"), and only after compliance\nwith paragraph 3 below), without the Company's prior written consent, disclose any information in the Evaluation Material, except that\nthe Evaluation Material (or portions thereof) may be disclosed to those of your Representatives who need to know such information for\nthe Permitted Purpose (it being understood that prior to such disclosure your Representatives will be informed of the confidential nature\nof the Evaluation Material and shall be instructed to comply with the terms of this Agreement). You agree to be responsible for any\nbreach of this Agreement by your Representatives.\n2.\nThe term "Evaluation Material" does not include any information which (i) at the time of disclosure or thereafter is generally known by\nthe public (other than as a result of its disclosure by you or your Representatives in violation of this Agreement) or (ii) was or becomes\navailable to you on a non-confidentia basis from a person who, to your knowledge after reasonable inquiry, is not otherwise\nbound by a confidentiality agreement with the Company or its Representatives or otherwise prohibited from transmitting the information\nto you or (iii) was or is developed or discovered by you or your Representatives without reference to the Evaluation Material. Evaluation\nMaterial includes both information previously provided to you and information provided to you in the future. As used in this Agreement,\nthe term "person" shall be broadly interpreted to include, without limitation, any corporation, company, joint venture, partnership or\nindividual.\n3.\nIn the event that you receive a request or are required to disclose all or any part of the information contained in the Evaluation Material\npursuant to the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a federal, state or local\ngovernmenta or regulatory body or pursuant to a civil investigative demand or similar judicial process or pursuant to the NYSE Rules,\nyou agree (to the extent permitted by law and the NYSE Rules) to (i) immediately notify the Company of the existence, terms and\ncircumstances surrounding such a request or requirement, (ii) consult with the Company on the advisability of taking legally available\nsteps (at the Company's expense with respect to out-of-pocket costs) to resist or narrow such request or requirement, and (iii) if\ndisclosure of such information is required, disclose any such information which you are advised by legal counsel is legally required (or\nrequired under the NYSE Rules) to be disclosed and you will exercise your reasonable best efforts (at the Company's expense with\nrespect to out-of-pocket costs) to obtain an order or other reliable assurance that confidential treatment will be accorded to such\ninformation.\n4.\nUnless otherwise required by law or the NYSE Rules in the opinion of your counsel, neither you nor your Representatives will, without\nthe Company's prior written consent, disclose to any person either the fact that discussions or negotiations are taking place concerning\na\npossible Transaction between the Company and you, or any of the terms, conditions or other facts with respect to any such possible\nTransaction, including, without limitation, the status thereof and the fact that the Evaluation Material has been made available to you.\nThe Company will not, without your prior written consent, disclose to any person (other than its Representatives) the fact that the\nEvaluation Material has been made available to you, that you are considering the Transaction involving the Company, or that discussions\nor negotiations are taking or have taken place with you concerning the Transaction or involving you or any term, condition or other fact\nrelating to the Transaction from which a person could be reasonably expected to identify you.\n5.\nUntil the earlier of the consummation by you of a Transaction and 18 months from the date of this Agreement, you agree, and you agree\nto cause your affiliates (used herein with the meaning set forth in Rule 12b-2 of the Securities Exchange Act of 1934 (the "Exchange\nAct")), not to, directly or indirectly, solicit for purposes of employment, offer to hire, entice away, or offer to enter into any employment,\nconsulting (or similar) contract with any employee of the Company or any of its subsidiaries with whom you have had contact or who\nbecame known\n2\nto you in reasonable detail in connection with the Permitted Purpose, or otherwise solicit, induce or otherwise encourage any such person\nto discontinue, cancel or refrain from entering into any relationship (contractual or otherwise) with the Company without the Company's\nprior written consent, provided, however, that the foregoing provision will not prevent you from (i) employing or engaging any such\nperson who contacts you on his or her own initiative without any direct or indirect solicitation by or encouragement from you or\n(ii) engaging in general solicitations not specifically targeted at such persons or employing or engaging any such person who contacts\nyou in response to such general solicitation or (iii) employing or engaging any such person who no longer works for the Company at the\ntime you first commence employment discussions with such person.\n6.\nUnless otherwise instructed by the Company or its Representatives or agreed to by the Company in writing (for purposes of clarity,\nincluding electronic mail), all (i) communications regarding any possible Transaction, (ii) requests for additional information,\n(iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding procedures, will be submitted or\ndirected to Matthew M. Bennett, Executive Vice President, General Counsel and Business.\n7.\nFor a period of one year from the date of this Agreement, you and your Representatives, on your or your affiliates' behalf, shall not,\ndirectly or indirectly, and you shall cause any person or entity controlled by you not to, without the prior written consent of the Board of\nDirectors of the Company, (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, any\nsecurities or property of the Company or any of its affiliates (other than property to be transferred in the ordinary course of your and the\nCompany's businesses), (ii) propose to enter into, directly or indirectly, any merger, consolidation, recapitalization, business\ncombination, partnership, joint venture (other than in the ordinary course of your and the Company's businesses) or other similar\ntransaction involving the Company or any of its affiliates, (iii) make, or in any way participate in any "solicitation" of "proxies" (as such\nterms are used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with\nrespect to the voting of any voting securities of the Company or any of its affiliates, (iv) form, join or in any way participate in a "group"\n(within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of the Company or any of its\naffiliates, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or\npolicies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) advise, assist or\nencourage any other persons in connection with any of the foregoing. You also agree during such period not to (x) request the Company\n(or Company Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence),\n(y) take any action which would require the Company or any of its affiliates to make a public announcement regarding this Agreement or\nthe possibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, the\nTransaction, or (z) communicate with the Company's shareholders regarding the subject matter of\n3\nthis Agreement. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained in this paragraph shall prohibit internal\nactions among you and your Representatives. Further notwithstanding the foregoing, the limitations and prohibitions on you set forth in\nthis paragraph shall no longer apply from the earliest of (1) the date the Company enters into an agreement with a third party other than\nyou which provides for an acquisition of, or business combination with, the Company where either the Company would not be the\nsurviving entity as a public company or where such third party (or such third party's stockholders) would be acquiring at least fifty\npercent or more of the common equity of the Company (or the entity resulting from the transaction) or the assets of the Company, or\n(2) after the date of this Agreement, the date a third party commences or publicly announces its intent to commence a tender offer to\nacquire, or acquires, "beneficial ownership" (as such term is defined under the Exchange Act) of fifty percent or more of the common\nequity of the Company or the Board of Directors of the Company (or any committee thereof) recommends publicly that its stockholders\ntender to a third party proposing to acquire beneficial ownership of fifty percent or more of the common equity of the Company. In\naddition, nothing in this paragraph shall limit your ability to make oral or written proposals to the Board of Directors or Chief Executive\nOfficer of the Company regarding any potential transaction involving you and the Company so long as such proposals do not give rise to\nany reasonable concern that public disclosure of such proposal or proposals is or will be required by applicable law or the NYSE Rules.\n8.\nEach party hereby acknowledges that it is aware, and that it will advise its Representatives who are informed as to the matters which are\nthe subject of this Agreement, that the United States securities laws prohibit any person who has material, non-public information of an\nissuer concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer (and options,\nwarrants and rights relating thereto) and from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n9.\nThis Agreement does not constitute or create any obligation of the Company to provide any Evaluation Material or other information to\nyou, but merely defines the duties and obligations of the parties hereto and their respective Representatives with respect to the matters\naddressed herein to the extent Evaluation Material may be disclosed or made available. Under no circumstances is the Company\nobligated to disclose or make available any information, including any Evaluation Material, which in its sole and absolute discretion\nit\ndetermines not to disclose. You understand and acknowledge that neither the Company nor any of our Representatives is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information\nprovided to you by the Company or any of our Representatives. Neither the Company nor any of our Representatives, nor any of our\nrespective officers, directors, employees, agents or controlling persons (within the meaning of the Exchange Act) shall have any liability\nto you or any other\n4\nperson (including, without limitation, any of your Representatives) resulting from your use of the Evaluation Material except as and to\nthe extent set forth in a definitive agreement, if any, between the Company and you with respect to any Transaction that has been\nexecuted and delivered.\n10.\nYou and the Company agree that unless and until a definitive agreement between the Company and you with respect to any Transaction\nhas been executed and delivered, neither you nor the Company will be under any legal obligation of any kind whatsoever with respect to\nsuch a Transaction by virtue of (i) this Agreement or (ii) any written or oral expression with respect to such a Transaction by you or the\nCompany or your respective directors, officers, employees, agents, advisors or Representatives\n11.\nYou agree that the Company has not granted you any license, copyright, or similar right with respect to any of the Evaluation Material or\nany other information provided to you by the Company or any of our Representatives.\n12.\nIf you determine that you do not wish to proceed with the Transaction, you will promptly advise the Company in writing of that decision.\nIn\nthat case, or in the event that, (i) a Transaction is not consummated by you or (ii) at any time the Company requests, you will\npromptly, at your option, (a) deliver to us all of the Evaluation Material, including all copies, reproductions, summaries, analyses or\nextracts thereof or based thereon in your possession or in the possession of any of your Representatives (such delivery to be certified by\nyou) or (b) destroy all Evaluation Material in your possession or in the possession of any of your Representatives (such destruction to be\ncertified by you).\n13.\nYou and the Company acknowledge that remedies at law may be inadequate to protect the other party against any actual or threatened\nbreach of this letter agreement by you or by your Representatives, on the one hand, and by us or our Representatives, on the other, and,\nwithout prejudice to any other rights and remedies otherwise available, you and we agree to the granting of specific performance and\ninjunctive or other equitable relief in the other party's favor without proof of actual damages and we each further agree to waive, and\nto\nuse all reasonable efforts to cause our respective Representatives to waive, any requirement for the securing or posting of any bond in\nconnection with any such remedy.\n14. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the\nState of New York applicable to agreements made and to be fully performed therein (excluding the conflicts of laws rules). You and the\nCompany irrevocably (i) submit to the jurisdiction of any court of the State of New York or the United State District Court for the\nSouthern District of the State of New York for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any\nof the agreements or transactions contemplated hereby (each a "Proceeding"), (ii) agree that all claims in respect of any Proceeding may\nbe heard and determined in any\n5\nsuch court, and (iii) waive, to the fullest extent permitted by law, any immunity a party may have acquired, or hereafter may acquire,\nfrom jurisdiction of any such court or from any legal process therein, and (iv) agree not to commence any Proceeding other than in such\ncourt, and waive, to the fullest extent permitted by applicable law, any claim that any such Proceeding is brought in an inconvenient\nforum.\n15.\nThe benefits of this Agreement shall inure to the respective successors and assigns of the parties hereto and their successors and assigns\nand Representatives, and the obligations and liabilities assumed in this Agreement by the parties hereto shall be binding upon their\nrespective successors and assigns.\n16.\nIf it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is\ninvalid or unenforceable, (i) the remaining terms and provision hereof shall be unimpaired and shall remain in full force and effect and\n(ii) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes\nclosest to expressing the intention of such invalid or unenforceable term or provision.\n17.\nThis Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements,\narrangements and understandings relating to the matters provided for herein. No alteration, waiver, amendment, change or supplement\nhereto shall be binding or effective unless the same is set forth in writing signed by a duly authorized representative of each party and\nmay be modified or waived only by a separate letter executed by the Company and you expressly so modifying or waiving such\nAgreement.\n18. For the convenience of the parties, any number of counterparts of this Agreement may be executed by the parties hereto. Each such\ncounterpart shall be, and shall be deemed to be, an original instrument, but all such counterparts taken together shall constitute one and\nthe same Agreement. Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in "portable document\nformat" (".pdf") form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document,\nwill have the same effect as physical delivery of the paper document bearing the original signature.\n19.\nExcept as may otherwise be provided herein, the restrictions and covenants set forth herein shall terminate and be of no further force or\neffect upon the expiration of a period of two years from the date hereof.\n[SIGNATURE PAGE FOLLOWS]\n6\nThis Agreement is being delivered to you in duplicate. Kindly execute and return one copy of this letter which will constitute our Agreement\nwith respect to the subject matter of this letter.\nVery truly yours,\nVIASYS HEALTHCARE INC.\nBy:\n/s/ RANDY H. THURMAN\nName: Randy H. Thurman\nTitle: Chief Executive Officer\nConfirmed and Agreed to\nas of the date first written above:\nCARDINAL HEALTH, INC.\nBy:\n/s/ JV WULF\nName: JV Wulf\nTitle: SVP-Corporate Development\n7	EX-99.(E)(4) 4 dex99e4.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(4)\nLOGO\nMatthew M. Bennett\nExecutive Vice President,\nGeneral Counsel and Business Development\nApril 19, 2007\nCardinal Health, Inc.\n7000 Cardinal Place\nDublin, OH 43017\nAttn: JV Wulf\nRe: Confidentiality Agreement (this “Agreement”)\nLadies and Gentlemen:\nIn connection with your consideration of a possible acquisition (the “Transaction”) of VIASYS Healthcare Inc. (the “Company”), you have\nrequested the right to review certain non-public information regarding the Company. In consideration of, and as a condition to, furnishing you with\nsuch information and any other information (whether in oral or written form, electronically stored or otherwise) delivered to you by us or any of our\naffiliates, directors, officers, employees, advisors, agents, representatives or “controlling persons” (within the meaning of the Securities Exchange\nAct of 1934, as amended (the “1934 Act”)) (such persons for either you or the Company being herein referred to collectively as “Representatives”)\nin connection with your consideration of a Transaction (such information being herein referred to as “Evaluation Material”), the Company hereby\nrequests your agreement as follows:\n1. You and your Representatives (i) will use the Evaluation Material solely for the purpose of evaluating and, if applicable, negotiating a\npossible Transaction with the Company involving you or your affiliates (the “Permitted Purpose”) and (ii) will keep the Evaluation\nMaterial strictly confidential and will not (except as requested pursuant to, or required by applicable law, regulation or legal process,\nincluding without limitation the rules and regulations of the New York Stock Exchange (the “NYSE Rules”), and only after compliance\nwith paragraph 3 below), without the Company’s prior written consent, disclose any information in the Evaluation Material, except that\nthe Evaluation Material (or portions thereof) may be disclosed to those of your Representatives who need to know such information for\nthe Permitted Purpose (it being understood that prior to such disclosure your Representatives will be informed of the confidential nature\nof the Evaluation Material and shall be instructed to comply with the terms of this Agreement). You agree to be responsible for any\nbreach of this Agreement by your Representatives.\n2. The term “Evaluation Material” does not include any information which (i) at the time of disclosure or thereafter is generally known by\nthe public (other than as a result of its disclosure by you or your Representatives in violation of this Agreement) or (ii) was or becomes\navailable to you on a non-confidential basis from a person who, to your knowledge after reasonable inquiry, is not otherwise\nbound by a confidentiality agreement with the Company or its Representatives or otherwise prohibited from transmitting the information\nto you or (iii) was or is developed or discovered by you or your Representatives without reference to the Evaluation Material. Evaluation\nMaterial includes both information previously provided to you and information provided to you in the future. As used in this Agreement,\nthe term “person” shall be broadly interpreted to include, without limitation, any corporation, company, joint venture, partnership or\nindividual.\n3. In the event that you receive a request or are required to disclose all or any part of the information contained in the Evaluation Material\npursuant to the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or a federal, state or local\ngovernmental or regulatory body or pursuant to a civil investigative demand or similar judicial process or pursuant to the NYSE Rules,\nyou agree (to the extent permitted by law and the NYSE Rules) to (i) immediately notify the Company of the existence, terms and\ncircumstances surrounding such a request or requirement, (ii) consult with the Company on the advisability of taking legally available\nsteps (at the Company’s expense with respect to out-of-pocket costs) to resist or narrow such request or requirement, and (iii) if\ndisclosure of such information is required, disclose any such information which you are advised by legal counsel is legally required (or\nrequired under the NYSE Rules) to be disclosed and you will exercise your reasonable best efforts (at the Company’s expense with\nrespect to out-of-pocket costs) to obtain an order or other reliable assurance that confidential treatment will be accorded to such\ninformation.\n4. Unless otherwise required by law or the NYSE Rules in the opinion of your counsel, neither you nor your Representatives will, without\nthe Company’s prior written consent, disclose to any person either the fact that discussions or negotiations are taking place concerning a\npossible Transaction between the Company and you, or any of the terms, conditions or other facts with respect to any such possible\nTransaction, including, without limitation, the status thereof and the fact that the Evaluation Material has been made available to you.\nThe Company will not, without your prior written consent, disclose to any person (other than its Representatives) the fact that the\nEvaluation Material has been made available to you, that you are considering the Transaction involving the Company, or that discussions\nor negotiations are taking or have taken place with you concerning the Transaction or involving you or any term, condition or other fact\nrelating to the Transaction from which a person could be reasonably expected to identify you.\n5. Until the earlier of the consummation by you of a Transaction and 18 months from the date of this Agreement, you agree, and you agree\nto cause your affiliates (used herein with the meaning set forth in Rule 12b-2 of the Securities Exchange Act of 1934 (the “Exchange\nAct”)), not to, directly or indirectly, solicit for purposes of employment, offer to hire, entice away, or offer to enter into any employment,\nconsulting (or similar) contract with any employee of the Company or any of its subsidiaries with whom you have had contact or who\nbecame known\n2\nto you in reasonable detail in connection with the Permitted Purpose, or otherwise solicit, induce or otherwise encourage any such person\nto discontinue, cancel or refrain from entering into any relationship (contractual or otherwise) with the Company without the Company’s\nprior written consent, provided, however, that the foregoing provision will not prevent you from (i) employing or engaging any such\nperson who contacts you on his or her own initiative without any direct or indirect solicitation by or encouragement from you or\n(ii) engaging in general solicitations not specifically targeted at such persons or employing or engaging any such person who contacts\nyou in response to such general solicitation or (iii) employing or engaging any such person who no longer works for the Company at the\ntime you first commence employment discussions with such person.\n6. Unless otherwise instructed by the Company or its Representatives or agreed to by the Company in writing (for purposes of clarity,\nincluding electronic mail), all (i) communications regarding any possible Transaction, (ii) requests for additional information,\n(iii) requests for facility tours or management meetings, and (iv) discussions or questions regarding procedures, will be submitted or\ndirected to Matthew M. Bennett, Executive Vice President, General Counsel and Business.\n7. For a period of one year from the date of this Agreement, you and your Representatives, on your or your affiliates’ behalf, shall not,\ndirectly or indirectly, and you shall cause any person or entity controlled by you not to, without the prior written consent of the Board of\nDirectors of the Company, (i) in any manner acquire, agree to acquire or make any proposal to acquire, directly or indirectly, any\nsecurities or property of the Company or any of its affiliates (other than property to be transferred in the ordinary course of your and the\nCompany’s businesses), (ii) propose to enter into, directly or indirectly, any merger, consolidation, recapitalization, business\ncombination, partnership, joint venture (other than in the ordinary course of your and the Company’s businesses) or other similar\ntransaction involving the Company or any of its affiliates, (iii) make, or in any way participate in any “solicitation” of “proxies” (as such\nterms are used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with\nrespect to the voting of any voting securities of the Company or any of its affiliates, (iv) form, join or in any way participate in a “group”\n(within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any voting securities of the Company or any of its\naffiliates, (v) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or\npolicies of the Company, (vi) disclose any intention, plan or arrangement inconsistent with the foregoing, or (vii) advise, assist or\nencourage any other persons in connection with any of the foregoing. You also agree during such period not to (x) request the Company\n(or Company Representatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence),\n(y) take any action which would require the Company or any of its affiliates to make a public announcement regarding this Agreement or\nthe possibility of a merger, consolidation, business combination or other similar transaction, including, without limitation, the\nTransaction, or (z) communicate with the Company’s shareholders regarding the subject matter of\n3\nthis Agreement. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained in this paragraph shall prohibit internal\nactions among you and your Representatives. Further notwithstanding the foregoing, the limitations and prohibitions on you set forth in\nthis paragraph shall no longer apply from the earliest of (1) the date the Company enters into an agreement with a third party other than\nyou which provides for an acquisition of, or business combination with, the Company where either the Company would not be the\nsurviving entity as a public company or where such third party (or such third party’s stockholders) would be acquiring at least fifty\npercent or more of the common equity of the Company (or the entity resulting from the transaction) or the assets of the Company, or\n(2) after the date of this Agreement, the date a third party commences or publicly announces its intent to commence a tender offer to\nacquire, or acquires, “beneficial ownership” (as such term is defined under the Exchange Act) of fifty percent or more of the common\nequity of the Company or the Board of Directors of the Company (or any committee thereof) recommends publicly that its stockholders\ntender to a third party proposing to acquire beneficial ownership of fifty percent or more of the common equity of the Company. In\naddition, nothing in this paragraph shall limit your ability to make oral or written proposals to the Board of Directors or Chief Executive\nOfficer of the Company regarding any potential transaction involving you and the Company so long as such proposals do not give rise to\nany reasonable concern that public disclosure of such proposal or proposals is or will be required by applicable law or the NYSE Rules.\n8. Each party hereby acknowledges that it is aware, and that it will advise its Representatives who are informed as to the matters which are\nthe subject of this Agreement, that the United States securities laws prohibit any person who has material, non-public information of an\nissuer concerning the matters which are the subject of this Agreement from purchasing or selling securities of such issuer (and options,\nwarrants and rights relating thereto) and from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n9. This Agreement does not constitute or create any obligation of the Company to provide any Evaluation Material or other information to\nyou, but merely defines the duties and obligations of the parties hereto and their respective Representatives with respect to the matters\naddressed herein to the extent Evaluation Material may be disclosed or made available. Under no circumstances is the Company\nobligated to disclose or make available any information, including any Evaluation Material, which in its sole and absolute discretion it\ndetermines not to disclose. You understand and acknowledge that neither the Company nor any of our Representatives is making any\nrepresentation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any other information\nprovided to you by the Company or any of our Representatives. Neither the Company nor any of our Representatives, nor any of our\nrespective officers, directors, employees, agents or controlling persons (within the meaning of the Exchange Act) shall have any liability\nto you or any other\n4\nperson (including, without limitation, any of your Representatives) resulting from your use of the Evaluation Material except as and to\nthe extent set forth in a definitive agreement, if any, between the Company and you with respect to any Transaction that has been\nexecuted and delivered.\n10. You and the Company agree that unless and until a definitive agreement between the Company and you with respect to any Transaction\nhas been executed and delivered, neither you nor the Company will be under any legal obligation of any kind whatsoever with respect to\nsuch a Transaction by virtue of (i) this Agreement or (ii) any written or oral expression with respect to such a Transaction by you or the\nCompany or your respective directors, officers, employees, agents, advisors or Representatives.\n11. You agree that the Company has not granted you any license, copyright, or similar right with respect to any of the Evaluation Material or\nany other information provided to you by the Company or any of our Representatives.\n12. If you determine that you do not wish to proceed with the Transaction, you will promptly advise the Company in writing of that decision.\nIn that case, or in the event that, (i) a Transaction is not consummated by you or (ii) at any time the Company requests, you will\npromptly, at your option, (a) deliver to us all of the Evaluation Material, including all copies, reproductions, summaries, analyses or\nextracts thereof or based thereon in your possession or in the possession of any of your Representatives (such delivery to be certified by\nyou) or (b) destroy all Evaluation Material in your possession or in the possession of any of your Representatives (such destruction to be\ncertified by you).\n13. You and the Company acknowledge that remedies at law may be inadequate to protect the other party against any actual or threatened\nbreach of this letter agreement by you or by your Representatives, on the one hand, and by us or our Representatives, on the other, and,\nwithout prejudice to any other rights and remedies otherwise available, you and we agree to the granting of specific performance and\ninjunctive or other equitable relief in the other party’s favor without proof of actual damages and we each further agree to waive, and to\nuse all reasonable efforts to cause our respective Representatives to waive, any requirement for the securing or posting of any bond in\nconnection with any such remedy.\n14. The validity and interpretation of this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the\nState of New York applicable to agreements made and to be fully performed therein (excluding the conflicts of laws rules). You and the\nCompany irrevocably (i) submit to the jurisdiction of any court of the State of New York or the United State District Court for the\nSouthern District of the State of New York for the purpose of any suit, action, or other proceeding arising out of this Agreement, or any\nof the agreements or transactions contemplated hereby (each a “Proceeding”), (ii) agree that all claims in respect of any Proceeding may\nbe heard and determined in any\n5\nsuch court, and (iii) waive, to the fullest extent permitted by law, any immunity a party may have acquired, or hereafter may acquire,\nfrom jurisdiction of any such court or from any legal process therein, and (iv) agree not to commence any Proceeding other than in such\ncourt, and waive, to the fullest extent permitted by applicable law, any claim that any such Proceeding is brought in an inconvenient\nforum.\n15. The benefits of this Agreement shall inure to the respective successors and assigns of the parties hereto and their successors and assigns\nand Representatives, and the obligations and liabilities assumed in this Agreement by the parties hereto shall be binding upon their\nrespective successors and assigns.\n16. If it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is\ninvalid or unenforceable, (i) the remaining terms and provision hereof shall be unimpaired and shall remain in full force and effect and\n(ii) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes\nclosest to expressing the intention of such invalid or unenforceable term or provision.\n17. This Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements,\narrangements and understandings relating to the matters provided for herein. No alteration, waiver, amendment, change or supplement\nhereto shall be binding or effective unless the same is set forth in writing signed by a duly authorized representative of each party and\nmay be modified or waived only by a separate letter executed by the Company and you expressly so modifying or waiving such\nAgreement.\n18. For the convenience of the parties, any number of counterparts of this Agreement may be executed by the parties hereto. Each such\ncounterpart shall be, and shall be deemed to be, an original instrument, but all such counterparts taken together shall constitute one and\nthe same Agreement. Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in “portable document\nformat” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document,\nwill have the same effect as physical delivery of the paper document bearing the original signature.\n19. Except as may otherwise be provided herein, the restrictions and covenants set forth herein shall terminate and be of no further force or\neffect upon the expiration of a period of two years from the date hereof.\n[SIGNATURE PAGE FOLLOWS]\n6\nThis Agreement is being delivered to you in duplicate. Kindly execute and return one copy of this letter which will constitute our Agreement\nwith respect to the subject matter of this letter.\nVery truly yours,\nVIASYS HEALTHCARE INC.\nBy: /s/ RANDY H. THURMAN\nName: Randy H. Thurman\nTitle: Chief Executive Officer\nConfirmed and Agreed to\nas of the date first written above:\nCARDINAL HEALTH, INC.\nBy: /s/ JV WULF\nName: JV Wulf\nTitle: SVP-Corporate Development\n7
+b3c1b4c6515acb64700d4ad2b43109f0.pdf	effective_date jurisdiction party term	EX-10 .1 2 tisi-06202016xex101.htm EXHIBIT 10.1\nExhibit 10.1\nNON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION AGREEMENT\nThis Non-Disclosure, Non-Competition and Non-Solicitation Agreement (the “Agreement”) is made between Philip J.\nHawk (“Mr. Hawk”) and Team Industrial Services, Inc., Team, Inc., and their affiliated entities (collectively the “Company”),\neffective as of August 8, 2016 (the “Effective Date”) for sufficient consideration as agreed to by the Parties. Mr. Hawk and the\nCompany may be referenced individually as “Party” or collectively as the “Parties.” This Agreement is in conjunction with Mr.\nHawk’s service on Team, Inc.’s Board of Directors (“Board”) and his transition to a non-employee member of the Board.\nSection 1.\nAccelerated Vesting of Restricted Stock Units. The Company will, as soon as administratively feasible\nafter the effective date of this Agreement, accelerate the vesting of certain of Mr. Hawk’s unvested restricted stock units, remove\nMr. Hawk’s continued employment as a condition for vesting under the long-term performance stock units, clarify the termination\ndate for exercising options under the 2007 non-qualified stock option award agreement and deliver the underlying shares as set forth\non Exhibit “A” to this Agreement (the “Accelerated Vesting”). Mr. Hawk acknowledges that this Accelerated Vesting is not due to\nMr. Hawk under any agreement or obligation of the Company and is provided solely in exchange for Mr. Hawk’s promises made in\nthis Agreement.\nSection 2.\nNon-Disclosure of Company’s Confidential Information. In connection with Mr. Hawk’s service on the\nBoard, and in exchange for Mr. Hawk’s promises made in this Agreement, the Company will provide Mr. Hawk with access to its\nConfidential Information and Company Relationships, which Mr. Hawk acknowledges to be valuable and critical to maintaining the\nCompany’s competitive advantage. Mr. Hawk acknowledges that “Confidential Information” includes, all information used by the\nCompany in its business and not known to the public, in spoken, printed, electronic or any other form or medium, relating directly\nor indirectly to: business opportunities and strategies, growth plans, potential mergers and acquisitions, information about third\nparties, training, and any issues or information coming before Board review or discussion, or any information designated or treated\nas confidential during Mr. Hawk’s service on the Board. The Company also shall provide Mr. Hawk with access to, information\nabout, and the unique opportunity to develop business relationships with, the Company’s customers, clients, vendors, business\npartners, potential acquisition targets, consultants, and other persons or entities with whom the Company has developed a business\nrelationship and goodwill (collectively, “Company Relationships”). Mr. Hawk agrees that he will not, during his service on the\nBoard, or at any time thereafter, make any disclosure or use of any Confidential Information, except as may be reasonably necessary\nin performing his duties for the benefit of the Company or as part of a good faith report or related disclosures to any governmental\nagency or entity regarding potential violations of applicable federal, state or local law or to take other actions protected as\nwhistleblower activity under applicable law. Mr. Hawk shall return or destroy (and provide written confirmation of the date and\ncontent and manner of the information destroyed), all Confidential Information to the Company upon request or upon the\ntermination of his Board service. The term “Confidential Information” does not include any information that (a) is or becomes,\navailable to Mr. Hawk on a non-confidential basis from a source other than the Company or its advisors or employees or others with\nan obligation to keep it confidential, or (b) is developed or derived by Mr. Hawk without the aid, application or use of such\nConfidential Information, including, without limitation, general perspectives on industry practices and business management that\nwere developed, in part, during Mr. Hawk’s tenure with the Company.\nSection 3.\nNon-Competition. Because of the Company’s legitimate business interest in protecting its Confidential\nInformation and Company Relationships, in exchange for the Company’s promises made in this Agreement and as a material\nincentive for the Company to enter into this Agreement, Mr. Hawk agrees that he will not, at any time during his service on the\nBoard, and for the later of (1) three years from the effective date of this Agreement or (2) the period commencing on the date of\ntermination of Mr. Hawk’s service on the Board and continuing for twelve (12) months thereafter (collectively referred to as the\n1\n“Restricted Period”), directly or indirectly, for himself or for others, in any state of the United States or in any business location\nworldwide where the Company is conducting or actively planning to conduct business as of the date Mr. Hawk’s Board service ends\nor in the previous twenty-four (24) months (the “Restricted Territory”), engage in any Prohibited Activity. “Prohibited Activity" is\nany activity involved with or supporting the same or similar business as the Company, or any activity which in any other way\nprovides the same or similar services as the Company provided during Mr. Hawk’s Board service up to the effective date of this\nAgreement, whether such actions are taken on behalf of Mr. Hawk or for others as set forth on Exhibit “B” to this Agreement;\nprovided, that, for the avoidance of doubt, the Parties acknowledge and agree that the Company, as of the effective date of this\nAgreement, does not provide industrial cleaning services in North America. Mr. Hawk expressly acknowledges and agrees that, due\nto the nature of his service with the Company, any activities falling within the definition of Prohibited Activity would necessarily\nand inevitably involve the use and/or disclosure by Mr. Hawk of the Company’s trade secrets and Confidential Information or\nCompany Relationships.\nSection 4.\nNon-Solicitation of Company Employees. Because of the Company’s legitimate business interest in\nprotecting its Confidential Information and Company Relationships, in exchange for the Company’s promises made in this\nAgreement and as a material incentive for the Company to enter into this Agreement, Mr. Hawk hereby agrees that he will not, at\nany time during the Restricted Period, for himself or for any other person or entity, solicit, hire or seek to hire any current or former\n(within the prior six months) employees of the Company, or in any other manner attempt, directly or indirectly, to influence, induce,\nor encourage any such current or former employees of the Company to leave his or her employment or work with the Company\n(“Prohibited Solicitation”). Mr. Hawk further agrees not to use or disclose to any person or entity any information concerning the\nnames, addresses, work or personal telephone numbers of any such current or former employees of the Company in association with\nany Prohibited Solicitation. Notwithstanding the foregoing, Mr. Hawk will not be deemed to have engaged in a Prohibited\nSolicitation about which he had no knowledge or participation. However, providing an introduction to or information about a person\nto be solicited or recruited will be considered participation in such solicitation.\nSection 5.\nInjunctive, Equitable and Legal Relief. Mr. Hawk acknowledges that he has or will receive sufficient\nmonetary and other consideration from the Company to justify the restrictions in this Agreement. In the event of (a) a breach, as\nfinally determined by a court of competent jurisdiction in a non-appealable decision, or (b) any challenge to or finding of\nenforceability of any term of this Agreement, Mr. Hawk shall immediately forfeit all rights to any long-term performance stock\nunits and restricted stock units and shall return to the Company all rights to and any value received from the restricted stock units\nsubject to the Accelerated Vesting under this Agreement scheduled and delivered to him after calendar year 2016. For any restricted\nstock units scheduled to be delivered after calendar year 2016, but not yet delivered at the time of an enforceability challenge or\nfinding of breach, Mr. Hawk shall immediately forfeit all rights to such restricted stock units and the Company shall be relieved of\nany obligation of delivery. Such return or forfeiture of delivery is not considered liquidated damages and is in addition to the\nCompany’s right to seek any and all remedies available at law or in equity, including, the recovery of damages from Mr. Hawk, as\nwell as attorneys’ fees or costs involved in litigating this Agreement, and specific performance and injunctive relief as monetary\ndamages will not be sufficient to remedy such breach or challenge to the terms of this Agreement. The Parties agree that only in the\nevent of litigation of any alleged breach of the terms of this Agreement, and not in the case of a challenge to the enforceability, that\nthe prevailing party, as finally determined by the applicable court, shall be entitled to his or its reasonable attorney fees and costs\nincurred in litigating the terms of this Agreement.\nSection 6.\nNo Use of Other Parties’ Confidential Information or Conflicting Obligations of Mr. Hawk. Mr. Hawk\npromises that he will not use, disclose to the Company, bring on Company premises, or induce the Company or any of its directors,\nagents or employees to intentionally or unintentionally use or disclose,\n2\nany confidential or proprietary information or material belonging to any other person or entity and for which the Company is not an\nauthorized user. Mr. Hawk will not enter into any agreement or undertake any other duty, whether written or oral, in conflict with\nthe provisions of this Agreement. Mr. Hawk represents that his service on the Board will not breach any agreement or other duty\nMr. Hawk has to keep in confidence proprietary information, knowledge or data belonging to other persons or entities.\nSection 7.\nCertain Acknowledgements. It is acknowledged and agreed that Mr. Hawk is involved in a variety of\nbusinesses and may have acquired (or invested in), or may acquire (or invest in), directly or indirectly, other businesses. For\navoidance of doubt, nothing in this Agreement is intended to limit Mr. Hawk’s ability to acquire, invest in, advise, manage or\noperate such other businesses, as long as, in doing so, Mr. Hawk does not violate any provision of this Agreement, or any other\nobligations Mr. Hawk has towards the Company, including duties under any applicable law or agreement such as fiduciary and\nloyalty and confidentiality duties as a Team director, and all policies and procedures applicable to Team directors such as the Code\nof Conduct, governance principles, and all of the Company’s board policies and procedures.\nSection 8.\nChoice of Law and Mandatory Forum; Waiver of Jury Trial. This Agreement is entered into under, and\nshall be governed for all purposes by, the laws of the State of Texas. Unless any injunctive or equitable relief sought requires filing\nelsewhere, the Parties agree to submit all disputes arising out of or relating to this Agreement to the exclusive jurisdiction of the\nstate and federal courts, as appropriate, in Harris County, Texas. Mr. Hawk hereby expressly consents to the jurisdiction of the\nforegoing courts for such purposes and waives any challenges to the jurisdiction of the foregoing courts. The Parties waive all rights\nto a jury trial for any claims between them under this Agreement or otherwise. The Parties consent to trial by the judge.\nSection 9.\nSuccessors/Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and\ntheir respective heirs, legal representatives, successors, beneficiaries, and permitted assigns. The Company shall be permitted to\nassign or otherwise transfer this Agreement to any person, association, or entity which may hereafter acquire or succeed to all or\nsubstantially all of the business or assets of the Company by any means whether direct or indirect, by purchase, merger,\nconsolidation, or otherwise without Mr. Hawk’s consent. This Agreement is personal to Mr. Hawk and not assignable by him.\nSection 10.\nNotices. Any notices under this Agreement shall be addressed as follows and delivered by any means\nwhich provides a receipt upon delivery. Notices to the Company shall be sent to the attention of Chief Executive Officer and\nExecutive Vice-President and Chief Legal Officer, 13131 Dairy Ashford, Suite 600, Sugar Land, TX 77478 or\nted.owen@teaminc.com and butch.bouchard@teaminc.com. Notices to Mr. Hawk shall be sent to: 4 Bradfield Court, Houston, TX\n77024 or phil.hawk@teaminc.com and Philip.j.hawk@gmail.com .\nSection 11.\nReasonableness of the Restrictions, Severability. The Parties agree that the restrictions in this Agreement\nare reasonable and necessary to protect the Company’s Confidential Information and Company Relationships. Nevertheless, if any\ncourt having jurisdiction finds any terms to be unenforceable for any reason, the court shall modify them to be enforceable. If such\ncourt finds any term of this Agreement to be unenforceable, it shall be severed and such finding shall not affect the validity or\nenforceability of any other provision of this Agreement, which shall remain in full force and effect.\nSection 12.\nEntire Agreement, Existing Duties, Modification of Agreement, No Waiver. The Parties have not relied\nupon any representations or statements, written or oral, not set forth in this Agreement. This Agreement represents the entire\nunderstanding between the Parties on the matters addressed, except that it supplements and does not replace any other agreement or\nobligation under any law between the Parties regarding fiduciary duties, duties of loyalty, conflict of interest, code of ethical\nconduct, confidentiality, non-\n3\ndisclosure, non-competition, and/or non-solicitation obligations. This Agreement may not be modified, changed or altered by any\npromise or statement by the Company other than in writing signed by Mr. Hawk and an authorized representative of Company. This\nAgreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together\nwill constitute one and the same Agreement. No failure by either Party hereto at any time to give notice of any breach by the other\nParty of, or to require compliance with, any condition or provision of this Agreement shall (i) be deemed a waiver of similar or\ndissimilar provisions or conditions at the same or at any prior or subsequent time, or (ii) preclude insistence upon strict compliance\nin the future.\nAgreed to and Executed By:\nTEAM, INC.\nBy:\n/s/ Ted W. Owen\nPrinted Name:\nTed W. Owen\nTitle: Chief Executive Officer\nDate Signed:\nAugust 8, 2016\n/s/ Philip J. Hawk\nPHILIP J. HAWK\nDate Signed:\nAugust 8, 2016\n4	EX-10.1 2 tisi-06202016xex101.htm EXHIBIT 10.1\nExhibit 10.1\nNON-DISCL.OSURE, NON-COMPETITION AND NON-SOLICITATION AGREEMENT\nThis Non-Disclosure, Non-Competition and Non-Solicitation Agreement (the “Agreement”) is made between Philip J.\nHawk (“Mr. Hawk”) and Team Industrial Services, Inc., Team, Inc., and their affiliated entities (collectively the “Company”),\neffective as of August 8, 2016 (the “Effective Date”) for sufficient consideration as agreed to by the Parties. Mr. Hawk and the\nCompany may be referenced individually as “Party” or collectively as the “Parties.” This Agreement is in conjunction with Mr.\nHawk’s service on Team, Inc.’s Board of Directors (“Board”) and his transition to a non-employee member of the Board.\nSection 1. Accelerated Vesting of Restricted Stock Units. The Company will, as soon as administratively feasible\nafter the effective date of this Agreement, accelerate the vesting of certain of Mr. Hawk’s unvested restricted stock units, remove\nMr. Hawk’s continued employment as a condition for vesting under the long-term performance stock units, clarify the termination\ndate for exercising options under the 2007 non-qualified stock option award agreement and deliver the underlying shares as set forth\non Exhibit “A” to this Agreement (the “Accelerated Vesting”). Mr. Hawk acknowledges that this Accelerated Vesting is not due to\nMr. Hawk under any agreement or obligation of the Company and is provided solely in exchange for Mr. Hawk’s promises made in\nthis Agreement.\nSection 2. Non-Disclosure of Company’s Confidential Information. In connection with Mr. Hawk’s service on the\nBoard, and in exchange for Mr. Hawk’s promises made in this Agreement, the Company will provide Mr. Hawk with access to its\nConfidential Information and Company Relationships, which Mr. Hawk acknowledges to be valuable and critical to maintaining the\nCompany’s competitive advantage. Mr. Hawk acknowledges that “Confidential Information” includes, all information used by the\nCompany in its business and not known to the public, in spoken, printed, electronic or any other form or medium, relating directly\nor indirectly to: business opportunities and strategies, growth plans, potential mergers and acquisitions, information about third\nparties, training, and any issues or information coming before Board review or discussion, or any information designated or treated\nas confidential during Mr. Hawk’s service on the Board. The Company also shall provide Mr. Hawk with access to, information\nabout, and the unique opportunity to develop business relationships with, the Company’s customers, clients, vendors, business\npartners, potential acquisition targets, consultants, and other persons or entities with whom the Company has developed a business\nrelationship and goodwill (collectively, “Company_Relationships”). Mr. Hawk agrees that he will not, during his service on the\nBoard, or at any time thereafter, make any disclosure or use of any Confidential Information, except as may be reasonably necessary\nin performing his duties for the benefit of the Company or as part of a good faith report or related disclosures to any governmental\nagency or entity regarding potential violations of applicable federal, state or local law or to take other actions protected as\nwhistleblower activity under applicable law. Mr. Hawk shall return or destroy (and provide written confirmation of the date and\ncontent and manner of the information destroyed), all Confidential Information to the Company upon request or upon the\ntermination of his Board service. The term “Confidential Information” does not include any information that (a) is or becomes,\navailable to Mr. Hawk on a non-confidential basis from a source other than the Company or its advisors or employees or others with\nan obligation to keep it confidential, or (b) is developed or derived by Mr. Hawk without the aid, application or use of such\nConfidential Information, including, without limitation, general perspectives on industry practices and business management that\nwere developed, in part, during Mr. Hawk’s tenure with the Company.\nSection 3. Non-Competition. Because of the Company’s legitimate business interest in protecting its Confidential\nInformation and Company Relationships, in exchange for the Company’s promises made in this Agreement and as a material\nincentive for the Company to enter into this Agreement, Mr. Hawk agrees that he will not, at any time during his service on the\nBoard, and for the later of (1) three years from the effective date of this Agreement or (2) the period commencing on the date of\ntermination of Mr. Hawk’s service on the Board and continuing for twelve (12) months thereafter (collectively referred to as the\n1\n“Restricted Period”), directly or indirectly, for himself or for others, in any state of the United States or in any business location\nworldwide where the Company is conducting or actively planning to conduct business as of the date Mr. Hawk’s Board service ends\nor in the previous twenty-four (24) months (the “Restricted Territory”), engage in any Prohibited Activity. “Prohibited Activity" is\nany activity involved with or supporting the same or similar business as the Company, or any activity which in any other way\nprovides the same or similar services as the Company provided during Mr. Hawk’s Board service up to the effective date of this\nAgreement, whether such actions are taken on behalf of Mr. Hawk or for others as set forth on Exhibit “B” to this Agreement;\nprovided, that, for the avoidance of doubt, the Parties acknowledge and agree that the Company, as of the effective date of this\nAgreement, does not provide industrial cleaning services in North America. Mr. Hawk expressly acknowledges and agrees that, due\nto the nature of his service with the Company, any activities falling within the definition of Prohibited Activity would necessarily\nand inevitably involve the use and/or disclosure by Mr. Hawk of the Company’s trade secrets and Confidential Information or\nCompany Relationships.\nSection 4. Non-Solicitation of Company Employees. Because of the Company’s legitimate business interest in\nprotecting its Confidential Information and Company Relationships, in exchange for the Company’s promises made in this\nAgreement and as a material incentive for the Company to enter into this Agreement, Mr. Hawk hereby agrees that he will not, at\nany time during the Restricted Period, for himself or for any other person or entity, solicit, hire or seek to hire any current or former\n(within the prior six months) employees of the Company, or in any other manner attempt, directly or indirectly, to influence, induce,\nor encourage any such current or former employees of the Company to leave his or her employment or work with the Company\n(“Prohibited Solicitation”). Mr. Hawk further agrees not to use or disclose to any person or entity any information concerning the\nnames, addresses, work or personal telephone numbers of any such current or former employees of the Company in association with\nany Prohibited Solicitation. Notwithstanding the foregoing, Mr. Hawk will not be deemed to have engaged in a Prohibited\nSolicitation about which he had no knowledge or participation. However, providing an introduction to or information about a person\nto be solicited or recruited will be considered participation in such solicitation.\nSection 5. Injunctive, Equitable and Legal Relief. Mr. Hawk acknowledges that he has or will receive sufficient\nmonetary and other consideration from the Company to justify the restrictions in this Agreement. In the event of (a) a breach, as\nfinally determined by a court of competent jurisdiction in a non-appealable decision, or (b) any challenge to or finding of\nenforceability of any term of this Agreement, Mr. Hawk shall immediately forfeit all rights to any long-term performance stock\nunits and restricted stock units and shall return to the Company all rights to and any value received from the restricted stock units\nsubject to the Accelerated Vesting under this Agreement scheduled and delivered to him after calendar year 2016. For any restricted\nstock units scheduled to be delivered after calendar year 2016, but not yet delivered at the time of an enforceability challenge or\nfinding of breach, Mr. Hawk shall immediately forfeit all rights to such restricted stock units and the Company shall be relieved of\nany obligation of delivery. Such return or forfeiture of delivery is not considered liquidated damages and is in addition to the\nCompany’s right to seek any and all remedies available at law or in equity, including, the recovery of damages from Mr. Hawk, as\nwell as attorneys’ fees or costs involved in litigating this Agreement, and specific performance and injunctive relief as monetary\ndamages will not be sufficient to remedy such breach or challenge to the terms of this Agreement. The Parties agree that only in the\nevent of litigation of any alleged breach of the terms of this Agreement, and not in the case of a challenge to the enforceability, that\nthe prevailing party, as finally determined by the applicable court, shall be entitled to his or its reasonable attorney fees and costs\nincurred in litigating the terms of this Agreement.\nSection 6. No Use of Other Parties’ Confidential Information or Conflicting Obligations of Mr. Hawk. Mr. Hawk\npromises that he will not use, disclose to the Company, bring on Company premises, or induce the Company or any of its directors,\nagents or employees to intentionally or unintentionally use or disclose,\n2\nany confidential or proprietary information or material belonging to any other person or entity and for which the Company is not an\nauthorized user. Mr. Hawk will not enter into any agreement or undertake any other duty, whether written or oral, in conflict with\nthe provisions of this Agreement. Mr. Hawk represents that his service on the Board will not breach any agreement or other duty\nMr. Hawk has to keep in confidence proprietary information, knowledge or data belonging to other persons or entities.\nSection 7. Certain Acknowledgements. It is acknowledged and agreed that Mr. Hawk is involved in a variety of\nbusinesses and may have acquired (or invested in), or may acquire (or invest in), directly or indirectly, other businesses. For\navoidance of doubt, nothing in this Agreement is intended to limit Mr. Hawk’s ability to acquire, invest in, advise, manage or\noperate such other businesses, as long as, in doing so, Mr. Hawk does not violate any provision of this Agreement, or any other\nobligations Mr. Hawk has towards the Company, including duties under any applicable law or agreement such as fiduciary and\nloyalty and confidentiality duties as a Team director, and all policies and procedures applicable to Team directors such as the Code\nof Conduct, governance principles, and all of the Company’s board policies and procedures.\n \nSection 8. Choice of L.aw and Mandatory Forum; Waiver of Jury Trial. This Agreement is entered into under, and\nshall be governed for all purposes by, the laws of the State of Texas. Unless any injunctive or equitable relief sought requires filing\nelsewhere, the Parties agree to submit all disputes arising out of or relating to this Agreement to the exclusive jurisdiction of the\nstate and federal courts, as appropriate, in Harris County, Texas. Mr. Hawk hereby expressly consents to the jurisdiction of the\nforegoing courts for such purposes and waives any challenges to the jurisdiction of the foregoing courts. The Parties waive all rights\nto a jury trial for any claims between them under this Agreement or otherwise. The Parties consent to trial by the judge.\nSection 9. Successors/Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and\ntheir respective heirs, legal representatives, successors, beneficiaries, and permitted assigns. The Company shall be permitted to\nassign or otherwise transfer this Agreement to any person, association, or entity which may hereafter acquire or succeed to all or\nsubstantially all of the business or assets of the Company by any means whether direct or indirect, by purchase, merger,\nconsolidation, or otherwise without Mr. Hawk’s consent. This Agreement is personal to Mr. Hawk and not assignable by him.\n \nSection 10. Notices. Any notices under this Agreement shall be addressed as follows and delivered by any means\nwhich provides a receipt upon delivery. Notices to the Company shall be sent to the attention of Chief Executive Officer and\nExecutive Vice-President and Chief Legal Officer, 13131 Dairy Ashford, Suite 600, Sugar Land, TX 77478 or\nted.owen@teaminc.com and butch.bouchard@teaminc.com. Notices to Mr. Hawk shall be sent to: 4 Bradfield Court, Houston, TX\n77024 or phil.hawk@teaminc.com and Philip.j.hawk@gmail.com.\nSection 11. Reasonableness of the Restrictions, Severability. The Parties agree that the restrictions in this Agreement\nare reasonable and necessary to protect the Company’s Confidential Information and Company Relationships. Nevertheless, if any\ncourt having jurisdiction finds any terms to be unenforceable for any reason, the court shall modify them to be enforceable. If such\ncourt finds any term of this Agreement to be unenforceable, it shall be severed and such finding shall not affect the validity or\nenforceability of any other provision of this Agreement, which shall remain in full force and effect.\nSection 12. Entire Agreement, Existing Duties, Modification of Agreement, No Waiver. The Parties have not relied\nupon any representations or statements, written or oral, not set forth in this Agreement. This Agreement represents the entire\nunderstanding between the Parties on the matters addressed, except that it supplements and does not replace any other agreement or\nobligation under any law between the Parties regarding fiduciary duties, duties of loyalty, conflict of interest, code of ethical\nconduct, confidentiality, non-\n \ndisclosure, non-competition, and/or non-solicitation obligations. This Agreement may not be modified, changed or altered by any\npromise or statement by the Company other than in writing signed by Mr. Hawk and an authorized representative of Company. This\nAgreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together\nwill constitute one and the same Agreement. No failure by either Party hereto at any time to give notice of any breach by the other\nParty of, or to require compliance with, any condition or provision of this Agreement shall (i) be deemed a waiver of similar or\ndissimilar provisions or conditions at the same or at any prior or subsequent time, or (ii) preclude insistence upon strict compliance\nin the future.\nAgreed to and Executed By:\nTEAM, INC.\nBy: /s/ Ted W. Owen\nPrinted Name: Ted W. Owen\nTitle: Chief Executive Officer\nDate Signed: August 8, 2016\n/s/ Philip J. Hawk\nPHILIP J. HAWK\nDate Signed: August 8, 2016	EX-10.1 tisi-06202016xex101.htr EXHIBIT 10.1\nExhibit 10.1\nNON-DISCLOSURE, ,NON-COMPETITION AND NON-SOLICITATION AGREEMENT\nThis Non-Disclosure, Non-Competition and Non-Solicitation Agreement (the "Agreement") is made between Philip J.\nHawk ("Mr. Hawk") and Team Industria Services, Inc., Team, Inc., and their affiliated entities (collectively the "Company."),\neffective as of August 8, 2016 (the "Effective Date") for sufficient consideration as agreed to by the Parties. Mr. Hawk and the\nCompany may be referenced individually as "Party." or collectively as the "Parties." This Agreement is in conjunction with Mr.\nHawk's service on Team, Inc.'s Board of Directors ("Board") and his transition to a non-employee member of the Board.\nSection 1.\nAccelerated Vesting of Restricted Stock Units. The Company will, as soon as administratively feasible\nafter the effective date of this Agreement, accelerate the vesting of certain of Mr. Hawk's unvested restricted stock units, remove\nMr.\nHawk's continued employment as a condition for vesting under the long-term performance stock units, clarify the termination\ndate for exercising options under the 2007 non-qualified stock option award agreement and deliver the underlying shares as set forth\non Exhibit "A" to this Agreement (the "Accelerated Vesting"). Mr. Hawk acknowledges that this Accelerated Vesting is not due to\nMr. Hawk under any agreement or obligation of the Company and is provided solely in exchange for Mr. Hawk's promises made in\nthis Agreement.\nSection 2.\nNon-Disclosure of Company's Confidential Information. In connection with Mr. Hawk's service on the\nBoard, and in exchange for Mr. Hawk's promises made in this Agreement, the Company will provide Mr. Hawk with access to its\nConfidential Information and Company Relationships, which Mr. Hawk acknowledges to be valuable and critical to maintaining the\nCompany's competitive advantage. Mr. Hawk acknowledges that "Confidential Information" includes, all information used by the\nCompany in its business and not known to the public, in spoken, printed, electronic or any other form or medium, relating directly\nor indirectly to: business opportunities and strategies, growth plans, potential mergers and acquisitions, information about third\nparties, training, and any issues or information coming before Board review or discussion, or any information designated or treated\nas\nconfidential during Mr. Hawk's service on the Board. The Company also shall provide Mr. Hawk with access to, information\nabout, and the unique opportunity to develop business relationships with, the Company's customers, clients, vendors, business\npartners, potential acquisition targets, consultants, and other persons or entities with whom the Company has developed a business\nrelationship and goodwill (collectively, 'Company Relationships"). Mr. Hawk agrees that he will not, during his service on the\nBoard, or at any time thereafter, make any disclosure or use of any Confidential Information, except as may be reasonably necessary\nin performing his duties for the benefit of the Company or as part of a good faith report or related disclosures to any governmental\nagency or entity regarding potential violations of applicable federal, state or local law or to take other actions protected as\nwhistleblower activity under applicable law. Mr. Hawk shall return or destroy (and provide written confirmation of the date and\ncontent and manner of the information destroyed), all Confidential Information to the Company upon request or upon the\ntermination of his Board service. The term "Confidential Information" does not include any information that (a) is or becomes,\navailable\nto\nMr.\nHawk\non\na\nnon-confidential\nbasis\nfrom\na\nsource\nother\nthan\nthe\nCompany\nor\nits\nadvisors\nor\nemployees\nor\nothers\nwith\nan obligation to keep it confidential, or (b) is developed or derived by Mr. Hawk without the aid, application or use of such\nConfidential Information, including, without limitation, general perspectives on industry practices and business management that\nwere developed, in part, during Mr. Hawk's tenure with the Company.\nSection 3.\nNon-Competition. Because of the Company's legitimate business interest in protecting its Confidential\nInformation and Company Relationships, in exchange for the Company's promises made in this Agreement and as a material\nincentive for the Company to enter into this Agreement, Mr. Hawk agrees that he will not, at any time during his service on the\nBoard, and for the later of (1) three years from the effective date of this Agreement or (2) the period commencing on the date of\ntermination of Mr. Hawk's service on the Board and continuing for twelve (12) months thereafter (collectively referred to as the\n1\n"Restricted Period"), directly or indirectly, for himself or for others, in any state of the United States or in any business location\nworldwide where the Company is conducting or actively planning to conduct business as of the date Mr. Hawk's Board service ends\nor in the previous twenty-four (24) months (the "Restricted Territory."), engage in any Prohibited Activity. "Prohibited Activity." is\nany activity involved with or supporting the same or similar business as the Company, or any activity which in any other way\nprovides the same or similar services as the Company provided during Mr. Hawk's Board service up to the effective date of this\nAgreement, whether such actions are taken on behalf of Mr. Hawk or for others as set forth on Exhibit "B" to this Agreement;\nprovided, that, for the avoidance of doubt, the Parties acknowledge and agree that the Company, as of the effective date of this\nAgreement,\ndoes\nnot\nprovide\nindustrial\ncleaning\nservices\nin\nNorth\nAmerica.\nMr.\nHawk\nexpressly\nacknowledges\nand\nagrees\nthat,\ndue\nto the nature of his service with the Company, any activities falling within the definition of Prohibited Activity would necessarily\nand inevitably involve the use and/or disclosure by Mr. Hawk of the Company's trade secrets and Confidential Information or\nCompany Relationships.\nSection 4.\nNon-Solicitation of ompany Employees, Because of the Company's legitimate business interest in\nprotecting\nits\nConfidential\nInformation\nand\nCompany\nRelationships,\nin\nexchange\nfor\nthe\nCompany's\npromises\nmade\nin\nthis\nAgreement and as a material incentive for the Company to enter into this Agreement, Mr. Hawk hereby agrees that he will not, at\nany time during the Restricted Period, for himself or for any other person or entity, solicit, hire or seek to hire any current or former\n(within the prior six months) employees of the Company, or in any other manner attempt, directly or indirectly, to influence, induce,\nor encourage any such current or former employees of the Company to leave his or her employment or work with the Company\n("Prohibited Solicitation"). Mr. Hawk further agrees not to use or disclose to any person or entity any information concerning the\nnames, addresses, work or persona telephone numbers of any such current or former employees of the Company in association with\nany Prohibited Solicitation. Notwithstanding the foregoing, Mr. Hawk will not be deemed to have engaged in a Prohibited\nSolicitation about which he had no knowledge or participation. However, providing an introduction to or information about a person\nto be solicited or recruited will be considered participation in such solicitation.\nSection 5.\nInjunctive, Equitable and Legal Relief. Mr. Hawk acknowledges that he has or will receive sufficient\nmonetary and other consideration from the Company to justify the restrictions in this Agreement. In the event of (a) a breach, as\nfinally determined by a court of competent jurisdiction in a non-appealable decision, or (b) any challenge to or finding of\nenforceability of any term of this Agreement, Mr. Hawk shall immediately forfeit all rights to any long-term performance stock\nunits and restricted stock units and shall return to the Company all rights to and any value received from the restricted stock units\nsubject to the Accelerated Vesting under this Agreement scheduled and delivered to him after calendar year 2016. For any restricted\nstock\nunits\nscheduled\nto\nbe\ndelivered\nafter\ncalendar\nyear\n2016,\nbut\nnot\nyet\ndelivered\nat\nthe\ntime\nof\nan\nenforceability\nchallenge\nor\nfinding of breach, Mr Hawk shall immediately forfeit all rights to such restricted stock units and the Company shall be relieved of\nany obligation of delivery. Such return or forfeiture of delivery is not considered liquidated damages and is in addition to the\nCompany's right to seek any and all remedies available at law or in equity, including, the recovery of damages from Mr.\nHawk,\nas\nwell as attorneys' fees or costs involved in litigating this Agreement, and specific performance and injunctive relief as monetary\ndamages will not be sufficient to remedy such breach or challenge to the terms of this Agreement. The Parties agree that only in the\nevent\nof\nlitigation\nof\nany\nalleged\nbreach\nof\nthe\nterms\nof\nthis\nAgreement,\nand\nnot\nin\nthe\ncase\nof\na\nchallenge\nto\nthe\nenforceability,\nthat\nthe prevailing party, as finally determined by the applicable court, shall be entitled to his or its reasonable attorney fees and costs\nincurred in litigating the terms of this Agreement.\nSection 6.\nNo Use of Other Parties' Confidential Information or Conflicting Obligations of Mr. Hawk. Mr. Hawk\npromises that he will not use, disclose to the Company, bring on Company premises, or induce the Company or any of its directors,\nagents or employees to intentionally or unintentionally use or disclose,\n2\nany confidential or proprietary information or material belonging to any other person or entity and for which the Company is not\nan\nauthorized user. Mr. Hawk will not enter into any agreement or undertake any other duty, whether written or oral, in conflict with\nthe provisions of this Agreement. Mr. Hawk represents that his service on the Board will not breach any agreement or other duty\nMr. Hawk has to keep in confidence proprietary information, knowledge or data belonging to other persons or entities.\nSection 7.\nCertain Acknowledgements. It is acknowledged and agreed that Mr. Hawk is involved in a variety of\nbusinesses and may have acquired (or invested in), or may acquire (or invest in), directly or indirectly, other businesses. For\navoidance of doubt, nothing in this Agreement is intended to limit Mr. Hawk's ability to acquire, invest in, advise, manage or\noperate such other businesses, as long as, in doing so, Mr. Hawk does not violate any provision of this Agreement, or any other\nobligations Mr. Hawk has towards the Company, including duties under any applicable law or agreement such as fiduciary and\nloyalty and confidentiality duties as a Team director, and all policies and procedures applicable to Team directors such as the Code\nof Conduct, governance principles, and all of the Company's board policies and procedures.\nSection 8.\nChoice\nof\nLaw\nand\nMandatory For\nWaiver\nof\nJury\nTrial.\nThis\nAgreement\nis\nentered\ninto\nunder,\nand\nshall be governed for all purposes by, the laws of the State of Texas. Unless any injunctive or equitable relief sought requires filing\nelsewhere, the Parties agree to submit all disputes arising out of or relating to this Agreement to the exclusive jurisdiction of the\nstate and federal courts, as appropriate, in Harris County, Texas. Mr. Hawk hereby expressly consents to the jurisdiction of the\nforegoing courts for such purposes and waives any challenges to the jurisdiction of the foregoing courts. The Parties waive\nto a jury trial for any claims between them under this Agreement or otherwise. The Parties consent to trial by the judge. all rights\nSection 9.\nSuccessors/Assignment This Agreement shall be binding upon and inure to the benefit of the Parties and\ntheir respective heirs, legal representatives, successors, beneficiaries, and permitted assigns. The Company shall be permitted to\nassign or otherwise transfer this Agreement to any person, association, or entity which may hereafter acquire or succeed to all or\nsubstantially all of the business or assets of the Company by any means whether direct or indirect, by purchase, merger,\nconsolidation, or otherwise without Mr. Hawk's consent. This Agreement is personal to Mr. Hawk and not assignable by him.\nSection 10.\nNotices. Any notices under this Agreement shall be addressed as follows and delivered by any means\nwhich provides a receipt upon delivery. Notices to the Company shall be sent to the attention of Chief Executive Officer and\nExecutive Vice-President and Chief Legal Officer, 13131 Dairy Ashford, Suite 600, Sugar Land, TX 77478 or\nted.owen@teaminc.com and butch.bouchard@teaminc.com. Notices to Mr. Hawk shall be sent to: 4 Bradfield Court, Houston, TX\n77024 or phil.hawk@teaminc.com and Philip.j.hawk@gmail.com.\nSection 11.\nReasonableness of the Restrictions, Severability. The Parties agree that the restrictions in this Agreement\nare\nreasonable\nand\nnecessary\nto\nprotect\nthe\nCompany's\nConfidential\nInformation\nand\nCompany\nRelationships.\nNevertheless,\nif\nany\ncourt having jurisdiction finds any terms to be unenforceable for any reason, the court shall modify them to be enforceable. If such\ncourt finds any term of this Agreement to be unenforceable, it shall be severed and such finding shall not affect the validity or\nenforceability of any other provision of this Agreement, which shall remain in full force and effect.\nSection 12.\nEntire Agreement, Existing Duties, Modification of Agreement, No Waiver. The Parties have not relied\nupon any representations or statements, written or oral, not set forth in this Agreement. This Agreement represents the entire\nunderstanding between the Parties on the matters addressed, except that it supplements and does not replace any other agreement or\nobligation under any law between the Parties regarding fiduciary duties, duties of loyalty, conflict of interest, code of ethical\nconduct, confidentiality, non-\n3\ndisclosure, non-competition, and/or non-solicitation obligations. This Agreement may not be modified, changed or altered by any\npromise or statement by the Company other than in writing signed by Mr. Hawk and an authorized representative of Company. This\nAgreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together\nwill constitute one and the same Agreement. No failure by either Party hereto at any time to give notice of any breach by the other\nParty\nof,\nor\nto\nrequire compliance with, any condition or provision of this Agreement shall (i) be deemed a waiver of similar\nor\ndissimilar provisions or conditions at the same or at any prior or subsequent time, or (ii) preclude insistence upon strict compliance\nin the future.\nAgreed to and Executed By:\nTEAM, INC.\nBy:\n/s/ Ted W. Owen\nPrinted Name:\nTed W. Owen\nTitle: Chief Executive Officer\nDate Signed:\nAugust 8, 2016\n/s/ Philip J. Hawk\nPHILIP J. HAWK\nDate Signed:\nAugust 8, 2016\n4	EX-10 .1 2 tisi-06202016xex101.htm EXHIBIT 10.1\nExhibit 10.1\nNON-DISCLOSURE, NON-COMPETITION AND NON-SOLICITATION AGREEMENT\nThis Non-Disclosure, Non-Competition and Non-Solicitation Agreement (the “Agreement”) is made between Philip J.\nHawk (“Mr. Hawk”) and Team Industrial Services, Inc., Team, Inc., and their affiliated entities (collectively the “Company”),\neffective as of August 8, 2016 (the “Effective Date”) for sufficient consideration as agreed to by the Parties. Mr. Hawk and the\nCompany may be referenced individually as “Party” or collectively as the “Parties.” This Agreement is in conjunction with Mr.\nHawk’s service on Team, Inc.’s Board of Directors (“Board”) and his transition to a non-employee member of the Board.\nSection 1.\nAccelerated Vesting of Restricted Stock Units. The Company will, as soon as administratively feasible\nafter the effective date of this Agreement, accelerate the vesting of certain of Mr. Hawk’s unvested restricted stock units, remove\nMr. Hawk’s continued employment as a condition for vesting under the long-term performance stock units, clarify the termination\ndate for exercising options under the 2007 non-qualified stock option award agreement and deliver the underlying shares as set forth\non Exhibit “A” to this Agreement (the “Accelerated Vesting”). Mr. Hawk acknowledges that this Accelerated Vesting is not due to\nMr. Hawk under any agreement or obligation of the Company and is provided solely in exchange for Mr. Hawk’s promises made in\nthis Agreement.\nSection 2.\nNon-Disclosure of Company’s Confidential Information. In connection with Mr. Hawk’s service on the\nBoard, and in exchange for Mr. Hawk’s promises made in this Agreement, the Company will provide Mr. Hawk with access to its\nConfidential Information and Company Relationships, which Mr. Hawk acknowledges to be valuable and critical to maintaining the\nCompany’s competitive advantage. Mr. Hawk acknowledges that “Confidential Information” includes, all information used by the\nCompany in its business and not known to the public, in spoken, printed, electronic or any other form or medium, relating directly\nor indirectly to: business opportunities and strategies, growth plans, potential mergers and acquisitions, information about third\nparties, training, and any issues or information coming before Board review or discussion, or any information designated or treated\nas confidential during Mr. Hawk’s service on the Board. The Company also shall provide Mr. Hawk with access to, information\nabout, and the unique opportunity to develop business relationships with, the Company’s customers, clients, vendors, business\npartners, potential acquisition targets, consultants, and other persons or entities with whom the Company has developed a business\nrelationship and goodwill (collectively, “Company Relationships”). Mr. Hawk agrees that he will not, during his service on the\nBoard, or at any time thereafter, make any disclosure or use of any Confidential Information, except as may be reasonably necessary\nin performing his duties for the benefit of the Company or as part of a good faith report or related disclosures to any governmental\nagency or entity regarding potential violations of applicable federal, state or local law or to take other actions protected as\nwhistleblower activity under applicable law. Mr. Hawk shall return or destroy (and provide written confirmation of the date and\ncontent and manner of the information destroyed), all Confidential Information to the Company upon request or upon the\ntermination of his Board service. The term “Confidential Information” does not include any information that (a) is or becomes,\navailable to Mr. Hawk on a non-confidential basis from a source other than the Company or its advisors or employees or others with\nan obligation to keep it confidential, or (b) is developed or derived by Mr. Hawk without the aid, application or use of such\nConfidential Information, including, without limitation, general perspectives on industry practices and business management that\nwere developed, in part, during Mr. Hawk’s tenure with the Company.\nSection 3.\nNon-Competition. Because of the Company’s legitimate business interest in protecting its Confidential\nInformation and Company Relationships, in exchange for the Company’s promises made in this Agreement and as a material\nincentive for the Company to enter into this Agreement, Mr. Hawk agrees that he will not, at any time during his service on the\nBoard, and for the later of (1) three years from the effective date of this Agreement or (2) the period commencing on the date of\ntermination of Mr. Hawk’s service on the Board and continuing for twelve (12) months thereafter (collectively referred to as the\n1\n“Restricted Period”), directly or indirectly, for himself or for others, in any state of the United States or in any business location\nworldwide where the Company is conducting or actively planning to conduct business as of the date Mr. Hawk’s Board service ends\nor in the previous twenty-four (24) months (the “Restricted Territory”), engage in any Prohibited Activity. “Prohibited Activity" is\nany activity involved with or supporting the same or similar business as the Company, or any activity which in any other way\nprovides the same or similar services as the Company provided during Mr. Hawk’s Board service up to the effective date of this\nAgreement, whether such actions are taken on behalf of Mr. Hawk or for others as set forth on Exhibit “B” to this Agreement;\nprovided, that, for the avoidance of doubt, the Parties acknowledge and agree that the Company, as of the effective date of this\nAgreement, does not provide industrial cleaning services in North America. Mr. Hawk expressly acknowledges and agrees that, due\nto the nature of his service with the Company, any activities falling within the definition of Prohibited Activity would necessarily\nand inevitably involve the use and/or disclosure by Mr. Hawk of the Company’s trade secrets and Confidential Information or\nCompany Relationships.\nSection 4.\nNon-Solicitation of Company Employees. Because of the Company’s legitimate business interest in\nprotecting its Confidential Information and Company Relationships, in exchange for the Company’s promises made in this\nAgreement and as a material incentive for the Company to enter into this Agreement, Mr. Hawk hereby agrees that he will not, at\nany time during the Restricted Period, for himself or for any other person or entity, solicit, hire or seek to hire any current or former\n(within the prior six months) employees of the Company, or in any other manner attempt, directly or indirectly, to influence, induce,\nor encourage any such current or former employees of the Company to leave his or her employment or work with the Company\n(“Prohibited Solicitation”). Mr. Hawk further agrees not to use or disclose to any person or entity any information concerning the\nnames, addresses, work or personal telephone numbers of any such current or former employees of the Company in association with\nany Prohibited Solicitation. Notwithstanding the foregoing, Mr. Hawk will not be deemed to have engaged in a Prohibited\nSolicitation about which he had no knowledge or participation. However, providing an introduction to or information about a person\nto be solicited or recruited will be considered participation in such solicitation.\nSection 5.\nInjunctive, Equitable and Legal Relief. Mr. Hawk acknowledges that he has or will receive sufficient\nmonetary and other consideration from the Company to justify the restrictions in this Agreement. In the event of (a) a breach, as\nfinally determined by a court of competent jurisdiction in a non-appealable decision, or (b) any challenge to or finding of\nenforceability of any term of this Agreement, Mr. Hawk shall immediately forfeit all rights to any long-term performance stock\nunits and restricted stock units and shall return to the Company all rights to and any value received from the restricted stock units\nsubject to the Accelerated Vesting under this Agreement scheduled and delivered to him after calendar year 2016. For any restricted\nstock units scheduled to be delivered after calendar year 2016, but not yet delivered at the time of an enforceability challenge or\nfinding of breach, Mr. Hawk shall immediately forfeit all rights to such restricted stock units and the Company shall be relieved of\nany obligation of delivery. Such return or forfeiture of delivery is not considered liquidated damages and is in addition to the\nCompany’s right to seek any and all remedies available at law or in equity, including, the recovery of damages from Mr. Hawk, as\nwell as attorneys’ fees or costs involved in litigating this Agreement, and specific performance and injunctive relief as monetary\ndamages will not be sufficient to remedy such breach or challenge to the terms of this Agreement. The Parties agree that only in the\nevent of litigation of any alleged breach of the terms of this Agreement, and not in the case of a challenge to the enforceability, that\nthe prevailing party, as finally determined by the applicable court, shall be entitled to his or its reasonable attorney fees and costs\nincurred in litigating the terms of this Agreement.\nSection 6.\nNo Use of Other Parties’ Confidential Information or Conflicting Obligations of Mr. Hawk. Mr. Hawk\npromises that he will not use, disclose to the Company, bring on Company premises, or induce the Company or any of its directors,\nagents or employees to intentionally or unintentionally use or disclose,\n2\nany confidential or proprietary information or material belonging to any other person or entity and for which the Company is not an\nauthorized user. Mr. Hawk will not enter into any agreement or undertake any other duty, whether written or oral, in conflict with\nthe provisions of this Agreement. Mr. Hawk represents that his service on the Board will not breach any agreement or other duty\nMr. Hawk has to keep in confidence proprietary information, knowledge or data belonging to other persons or entities.\nSection 7.\nCertain Acknowledgements. It is acknowledged and agreed that Mr. Hawk is involved in a variety of\nbusinesses and may have acquired (or invested in), or may acquire (or invest in), directly or indirectly, other businesses. For\navoidance of doubt, nothing in this Agreement is intended to limit Mr. Hawk’s ability to acquire, invest in, advise, manage or\noperate such other businesses, as long as, in doing so, Mr. Hawk does not violate any provision of this Agreement, or any other\nobligations Mr. Hawk has towards the Company, including duties under any applicable law or agreement such as fiduciary and\nloyalty and confidentiality duties as a Team director, and all policies and procedures applicable to Team directors such as the Code\nof Conduct, governance principles, and all of the Company’s board policies and procedures.\nSection 8.\nChoice of Law and Mandatory Forum; Waiver of Jury Trial. This Agreement is entered into under, and\nshall be governed for all purposes by, the laws of the State of Texas. Unless any injunctive or equitable relief sought requires filing\nelsewhere, the Parties agree to submit all disputes arising out of or relating to this Agreement to the exclusive jurisdiction of the\nstate and federal courts, as appropriate, in Harris County, Texas. Mr. Hawk hereby expressly consents to the jurisdiction of the\nforegoing courts for such purposes and waives any challenges to the jurisdiction of the foregoing courts. The Parties waive all rights\nto a jury trial for any claims between them under this Agreement or otherwise. The Parties consent to trial by the judge.\nSection 9.\nSuccessors/Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and\ntheir respective heirs, legal representatives, successors, beneficiaries, and permitted assigns. The Company shall be permitted to\nassign or otherwise transfer this Agreement to any person, association, or entity which may hereafter acquire or succeed to all or\nsubstantially all of the business or assets of the Company by any means whether direct or indirect, by purchase, merger,\nconsolidation, or otherwise without Mr. Hawk’s consent. This Agreement is personal to Mr. Hawk and not assignable by him.\nSection 10.\nNotices. Any notices under this Agreement shall be addressed as follows and delivered by any means\nwhich provides a receipt upon delivery. Notices to the Company shall be sent to the attention of Chief Executive Officer and\nExecutive Vice-President and Chief Legal Officer, 13131 Dairy Ashford, Suite 600, Sugar Land, TX 77478 or\nted.owen@teaminc.com and butch.bouchard@teaminc.com. Notices to Mr. Hawk shall be sent to: 4 Bradfield Court, Houston, TX\n77024 or phil.hawk@teaminc.com and Philip.j.hawk@gmail.com .\nSection 11.\nReasonableness of the Restrictions, Severability. The Parties agree that the restrictions in this Agreement\nare reasonable and necessary to protect the Company’s Confidential Information and Company Relationships. Nevertheless, if any\ncourt having jurisdiction finds any terms to be unenforceable for any reason, the court shall modify them to be enforceable. If such\ncourt finds any term of this Agreement to be unenforceable, it shall be severed and such finding shall not affect the validity or\nenforceability of any other provision of this Agreement, which shall remain in full force and effect.\nSection 12.\nEntire Agreement, Existing Duties, Modification of Agreement, No Waiver. The Parties have not relied\nupon any representations or statements, written or oral, not set forth in this Agreement. This Agreement represents the entire\nunderstanding between the Parties on the matters addressed, except that it supplements and does not replace any other agreement or\nobligation under any law between the Parties regarding fiduciary duties, duties of loyalty, conflict of interest, code of ethical\nconduct, confidentiality, non-\n3\ndisclosure, non-competition, and/or non-solicitation obligations. This Agreement may not be modified, changed or altered by any\npromise or statement by the Company other than in writing signed by Mr. Hawk and an authorized representative of Company. This\nAgreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together\nwill constitute one and the same Agreement. No failure by either Party hereto at any time to give notice of any breach by the other\nParty of, or to require compliance with, any condition or provision of this Agreement shall (i) be deemed a waiver of similar or\ndissimilar provisions or conditions at the same or at any prior or subsequent time, or (ii) preclude insistence upon strict compliance\nin the future.\nAgreed to and Executed By:\nTEAM, INC.\nBy:\n/s/ Ted W. Owen\nPrinted Name:\nTed W. Owen\nTitle: Chief Executive Officer\nDate Signed:\nAugust 8, 2016\n/s/ Philip J. Hawk\nPHILIP J. HAWK\nDate Signed:\nAugust 8, 2016\n4
+b7783ba532f983dcda31187c61fd024f.pdf	effective_date jurisdiction party term	EX-10.2 3 dex102.htm CONFIDENTIAL SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE\nExhibit 10.2\nCONFIDENTIAL SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE\nThis Confidential Settlement Agreement and Mutual General Release (“Agreement”), dated this 31st day of May, 2007, is made and entered\ninto by and between PLAINTIFF/COUNTER-DEFENDANT ALLENDALE PHARMACEUTICALS, INC. (“Allendale”), THIRD-PARTY\nDEFENDANT TODAY’S WOMENCARE COMPANY, and DEFENDANT/COUNTER-CLAIMANT RADIANT TECHNOLOGIES, INC.\n(“Radiant”).\nI. DEFINITIONS\nThe following terms as used in this Agreement shall be defined as set forth below:\n1. All references to “Allendale” shall refer to Plaintiff/Counter-Defendant Allendale Pharmaceuticals, Inc., its predecessors, successors,\nparents, subsidiaries, affiliated entities, assigns, divisions, directors, officers, shareholders, agents, employees, attorneys and representatives\nincluding, but not limited to, Today’s WomenCare Company and Synova Healthcare Group, Inc. (“Synova”).\n2. All references to “Radiant” shall refer to Defendant/Counter-Claimant Radiant Technologies, Inc., its predecessors, successors, parents,\nsubsidiaries, affiliated entities, assigns, divisions, directors, officers, shareholders, agents, employees, attorneys and representatives including, but\nnot limited to, Pathfinder Management, Inc.\n3. All references to “Party” or “Parties” shall refer to “Allendale” and “Radiant” as defined above.\nPage 1\n4. All references to the “Lawsuit” shall refer to the matter captioned Allendale Pharmaceuticals, Inc. v. Radiant Technologies, Inc., et al.,\nbearing Docket No. 06 CV 3465, filed in the United States District Court for the Southern District of New York.\nII. RECITALS\nWHEREAS Allendale and Radiant entered into an agreement dated March 9, 2004 entitled, “Exclusive Distribution and Services Agreement”\n(the “Distribution Agreement”); and\nWHEREAS Allendale and Radiant entered into an agreement dated March 9, 2004 entitled, “Loan and Credit Agreement” (the “Loan and\nCredit Agreement”); and\nWHEREAS Allendale and Radiant entered into an agreement dated March 9, 2004 entitled, “Common Stock Purchase Agreement” (“Stock\nPurchase Agreement”); and\nWHEREAS Allendale filed the Lawsuit against Radiant on May 5, 2006 asserting a breach of contract claim (Count I), a breach of the\nCovenant of Good Faith and Fair Dealing claim (Count II), and a claim for Declaratory Judgment (Count III); and\nWHEREAS Radiant filed an Answer, Counterclaim, and Third-Party Complaint to the Lawsuit on July 24, 2006 asserting in its Counterclaim\na breach of contract claim (Count I), a claim for Declaratory Judgment (Count II), and a claim for breach of the Loan and Credit Agreement (Count\nIII); and\nWHEREAS Allendale filed an Answer to Radiant’s Counterclaim and Third-Party Complaint on August 14, 2006; and\nWHEREAS on January 12, 2007, Synova acquired Allendale by merger; and\nWHEREAS the Parties have agreed to amicably resolve all their differences arising from and related to the Lawsuit.\nPage 2\nNOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties, and in\nconsideration of the foregoing recitals and of the mutual covenants and agreements contained herein, and intending to be legally bound, the Parties\ndo hereby covenant and agree as follows:\nIII. AGREEMENT TERMS\nA. Payment of Settlement Amount, Transfer of Stock and Assignment/Conveyance of Accounts Receivable\n1. Subject to the other conditions and limitations contained herein, Synova, on behalf of Allendale, shall cause to be transferred to Radiant one\nmillion (1,000,000) shares of Synova common stock, which transfer of stock shall occur within ten (10) business days of the execution of this\nAgreement. The parties acknowledge that Radiant’s has the right to receive 145,422 shares of Synova common stock in conjunction with the\nJanuary 12, 2007 merger of Allendale with and into a wholly owned subsidiary of Synova, and further acknowledge that nothing in this Agreement\nshall have any affect on Radiant’s said current stock ownership.\n2. Allendale shall pay Radiant the sum of $100,000.00 (“Settlement Payment Amount”). Said Settlement Payment Amount in the form of a\ncheck made payable to “Radiant Technologies, Inc.” shall be forwarded to Radiant upon the execution of this Agreement.\n3. Radiant shall transfer, assign and/or convey to Synova, together with all rights to Today® Product returns authorized by Radiant or Allendale\nor both, all accounts receivable with retailers associated with the sale of said Products outstanding as of April 25, 2007, which accounts receivable\ntotaled approximately $779,000 pursuant to Radiant’s books. Radiant shall provide Synova with written proof and\nPage 3\nconfirmation of the transfer, assignment and/or conveyance of said outstanding accounts receivable, in whatever form is acceptable to the respective\nretailers, within ten (10) days of the execution of this Agreement, or as soon thereafter as is reasonable based upon delays caused by the retailer\naccounts. Further, within three (3) days of collecting any monies involving the outstanding accounts receivable described in this Paragraph 3,\nRadiant shall promptly transfer said monies to Synova.\n4. Allendale agrees to indemnify and hold harmless Radiant for any claims brought by retail customers for product liability, product defects,\nrecalls, retailer credits, or allowances for returns or in store promotions, or any other claims or charges asserted by retail customers in connection\nwith those accounts being transferred, assigned and/or conveyed to Allendale by Radiant pursuant to this Agreement, but only to the extent such\nclaims are not covered by the Parties’ insurance policies. Further, it is agreed that Allendale has no obligation to indemnify and hold harmless\nRadiant as to any claims that result or arise from Radiant’s own negligence or reckless or willful misconduct, nor from any such claims that Radiant\nhas or should have knowledge of at the time this Agreement is executed. Radiant acknowledges that it is not aware of any such claims having been\nasserted, or made or otherwise existing as of the date this Agreement is being executed. Allendale shall name Radiant as an additional named insured\non its products liability policy covering the sale of Allendale products. Allendale acknowledges that, in reliance on this representation by Allendale,\nRadiant is discontinuing all products liability insurance coverage pertaining to the sale of Allendale products.\nPage 4\nB. Parties’ Mutual Release of Claims\nIn consideration of the above, the Parties hereby FULLY, COMPLETELY AND FOREVER RELEASE AND DISCHARGE each other and\neach of their past, present and future parents, affiliates, subsidiaries, divisions, partners, shareholders, officers, directors, employees, representatives,\nagents, servants, attorneys, and the predecessors, heirs, executors, administrators, trustees, successors and assigns of each of them, of and from any\nand all past, present and future claims, actions, causes of action, suits, debts, dues, sums of money, attorneys’ fees, accounts, reckonings, bonds,\nbills, specialties, covenants, contracts, appraisal rights, controversies, judgments, extends, executions, liabilities, demands or obligations of any kind\nwhatsoever, whether in law or equity, which they ever had, now have or hereafter can, shall or may have against each other and each of their past,\npresent and future parents, affiliates, subsidiaries, divisions, partners, shareholders, officers, directors, employees, representatives, agents, servants,\nattorneys, and the predecessors, heirs, executors, administrators, trustees, successors and assigns of each of them, for, upon or by reason of any\nmatter, cause or thing whatsoever, whether now known or unknown, fixed or unliquidated, conditional or contingent, which currently exists or\nsubsequently accrues with respect to any and all claims including, but not limited to, those claims relating to or arising out of the Distribution\nAgreement, the Loan and Credit Agreement and the Stock Purchase Agreement as well as all other claims that were brought or could have been\nbrought in the Lawsuit.\nC. Dismissal With Prejudice\nFor and in consideration of the promises and consideration described in this Agreement, and as a material inducement to the Parties to enter\ninto this Agreement, the Parties willingly and knowingly agree to execute and file with the Court a Stipulation of Dismissal with Prejudice as to any\nand all claims raised in the Lawsuit.\nPage 5\nD. No Admission of Liability\n1. The purpose of this Agreement is to resolve fully, completely and finally all past, present and future matters, controversies, claims, and\ndisputes between and among the Parties.\n2. This Agreement is the result of a compromised settlement of disputed claims and defenses and is not and shall not be construed as an\nadmission or concession of responsibility, liability or any wrongdoing on the part of any Party. To the contrary, the Parties expressly deny any and all\nallegations and claims asserted against each other in the Lawsuit.\n3. The Parties specifically disclaim violating any law or committing any unlawful action against each other, and expressly deny any liability,\nresponsibility or obligation to each other with regard to the allegations and claims raised and asserted in the Lawsuit.\nE. Confidentiality\n1. The terms of this Agreement, the fact that this Agreement has been entered into, and all negotiations leading up to the execution of the\nAgreement, shall be deemed CONFIDENTIAL and shall not be further disclosed to any person or entity except as required by applicable law, rule or\nregulation (including, without limitation, the requirements under any federal or state securities laws, rules or regulations (or any judicial or\nregulatory interpretations thereof) applicable to Synova that may require disclosure of the terms of this Agreement or the fact that this Agreement\nhas been entered into), or with the written consent of the Parties hereto following the execution of\nPage 6\nthis Agreement; provided, however, that nothing in this Agreement shall prevent any Party hereto from disclosing the existence or terms of this\nAgreement in the course of the Parties’ normal business affairs, as regarding communications with their accountants, advisors, insurance companies,\nattorneys, and all regulatory agencies/bodies having a bona fide need to know such information, or in any judicial proceeding to enforce or construe\nthis Agreement.\n2. From and after the date of this Agreement, neither Party shall make any public disparaging statements concerning the officers, directors,\nemployees, attorneys, agents, or of the business or operations, of the other Party. This non-disparagement provision shall not in any way prevent the\nparties from disclosing any information to their attorneys, in response to a lawful subpoena or court order requiring disclosure of information, or in\nconnection with any litigation involving either Party.\nF. Assignment\nThe Parties hereto represent and warrant that they have not assigned nor otherwise transferred or assigned any claims or rights they may have\narising out of or relating in any way to the claims in the Lawsuit, the Distribution Agreement, the Loan and Credit Agreement, and/or the Stock\nPurchase Agreement.\nG. Further Assurances\nRadiant agrees that it will (1) promptly execute and deliver to Synova all further documents, agreements and instruments, (2) deliver in writing\ncustomary representations and warranties, and (3) provide Synova with such other documents or information, reasonably requested by Synova or\nAllendale (whether in connection with or following the execution of this Agreement).\nPage 7\nH. Representations and Warranties\n1. The Parties hereto represent and warrant to each other that the execution and delivery of this Agreement have been done freely and\nvoluntarily and, to the extent necessary, have been duly and validly authorized and approved as need be, and that no further action is necessary to\nmake this Agreement valid and binding on each of the Parties hereto.\n2. The Parties hereto further represent and warrant to each other that:\na. Each Party has participated in the drafting of this Agreement after consulting with counsel;\nb. This Agreement was reviewed and approved by counsel for all Parties and that no Party shall maintain that the language of the\nAgreement should be construed against any other Party by virtue of that Party’s putative role as drafter;\nc. No representations, warranties or promises have been made or relied upon by any of the Parties other than as expressly set forth\nherein;\nd. They have read this Agreement;\ne. They have not been coerced into signing this Agreement;\nf. They have the full and express authority to execute it on behalf of each Party on whose behalf they have signed; and\ng. They understand its contents and are executing it freely and voluntarily with an intent to bind their respective Parties to its terms.\nI. Entire Agreement\n1. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior written or\noral agreements, understandings, and negotiations.\nPage 8\n2. This Agreement may be modified only by a written amendment signed by the Parties, and no waiver of any provision of this Agreement or\nthe breach thereof shall be effective unless expressed in a writing signed by the waiving Party. The waiver by any Party hereto of any of the\nprovisions of this Agreement or the breach thereof shall not operate or be construed as a waiver of any subsequent or other breach.\nJ. Governing Law\nThis Agreement shall be interpreted, enforced, and governed under the laws of New Jersey.\nK. Severability\nIf any provision of this Agreement is declared or determined by any court to be illegal or invalid, that part shall be excluded from the\nAgreement, but the validity of the remaining parts, terms, or provisions shall not be affected.\nL. Headings\nHeadings contained herein are for purposes of organization only, and shall not constitute a part of this Agreement.\n[signatures appear on following page]\nPage 9\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on their behalf by the signatures of their duly authorized\nrepresentatives below.\nALLENDALE PHAMACUETICALS, INC.\nRADIANT TECHNOLOGIES, INC.\nBY: /s/ Robert L. Edwards\nBY: /s/ Mitch Gray\nDated: May 31, 2007\nDated: May 31, 2007\nTODAY’S WOMENCARE COMPANY\nPATHFINDER MANAGEMENT, INC.\nBY: /s/ Robert L. Edwards\nBY: /s/ Mitch Gray\nDated: May 31, 2007\nDated: May 31, 2007\nSYNOVA HEALTHCARE GROUP, INC.\nBY: /s/ Robert L. Edwards\nDated: May 31, 2007\nPage 10	EX-10.2 3 dex102.htm CONFIDENTIAL SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE\nExhibit 10.2\nCONFIDENTIAL SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE\nThis Confidential Settlement Agreement and Mutual General Release (“Agreement”), dated this 31st day of May, 2007, is made and entered\ninto by and between PLAINTIFF/COUNTER-DEFENDANT ALLENDALE PHARMACEUTICALS, INC. (“Allendale”), THIRD-PARTY\nDEFENDANT TODAY’S WOMENCARE COMPANY, and DEFENDANT/COUNTER-CLAIMANT RADIANT TECHNOLOGIES, INC.\n(“Radiant”).\nI. DEFINITIONS\nThe following terms as used in this Agreement shall be defined as set forth below:\n1. All references to “Allendale” shall refer to Plaintiff/Counter-Defendant Allendale Pharmaceuticals, Inc., its predecessors, successors,\nparents, subsidiaries, affiliated entities, assigns, divisions, directors, officers, shareholders, agents, employees, attorneys and representatives\nincluding, but not limited to, Today’s WomenCare Company and Synova Healthcare Group, Inc. (“Synova®).\n2. All references to “Radiant” shall refer to Defendant/Counter-Claimant Radiant Technologies, Inc., its predecessors, successors, parents,\nsubsidiaries, affiliated entities, assigns, divisions, directors, officers, shareholders, agents, employees, attorneys and representatives including, but\nnot limited to, Pathfinder Management, Inc.\n3. All references to “Party” or “Parties” shall refer to “Allendale” and “Radiant” as defined above.\nPage 1\n4. All references to the “Lawsuit” shall refer to the matter captioned Allendale Pharmaceuticals, Inc. v. Radiant Technologies, Inc., et al.,\nbearing Docket No. 06 CV 3465, filed in the United States District Court for the Southern District of New York.\nII. RECITALS\nWHEREAS Allendale and Radiant entered into an agreement dated March 9, 2004 entitled, “Exclusive Distribution and Services Agreement”\n(the “Distribution Agreement”); and\nWHEREAS Allendale and Radiant entered into an agreement dated March 9, 2004 entitled, “Loan and Credit Agreement” (the “Loan and\nCredit Agreement”); and\nWHEREAS Allendale and Radiant entered into an agreement dated March 9, 2004 entitled, “Common Stock Purchase Agreement” (“Stock\nPurchase Agreement”); and\nWHEREAS Allendale filed the Lawsuit against Radiant on May 5, 2006 asserting a breach of contract claim (Count I), a breach of the\nCovenant of Good Faith and Fair Dealing claim (Count II), and a claim for Declaratory Judgment (Count III); and\nWHEREAS Radiant filed an Answer, Counterclaim, and Third-Party Complaint to the Lawsuit on July 24, 2006 asserting in its Counterclaim\na breach of contract claim (Count I), a claim for Declaratory Judgment (Count II), and a claim for breach of the Loan and Credit Agreement (Count\n1IT); and\nWHEREAS Allendale filed an Answer to Radiant’s Counterclaim and Third-Party Complaint on August 14, 2006; and\nWHEREAS on January 12, 2007, Synova acquired Allendale by merger; and\nWHEREAS the Parties have agreed to amicably resolve all their differences arising from and related to the Lawsuit.\nPage 2\nNOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties, and in\nconsideration of the foregoing recitals and of the mutual covenants and agreements contained herein, and intending to be legally bound, the Parties\ndo hereby covenant and agree as follows:\nIII. AGREEMENT TERMS\nA. Payment of Settlement Amount, Transfer of Stock and Assignment/Conveyance of Accounts Receivable\n1. Subject to the other conditions and limitations contained herein, Synova, on behalf of Allendale, shall cause to be transferred to Radiant one\nmillion (1,000,000) shares of Synova common stock, which transfer of stock shall occur within ten (10) business days of the execution of this\nAgreement. The parties acknowledge that Radiant’s has the right to receive 145,422 shares of Synova common stock in conjunction with the\nJanuary 12, 2007 merger of Allendale with and into a wholly owned subsidiary of Synova, and further acknowledge that nothing in this Agreement\nshall have any affect on Radiant’s said current stock ownership.\n2. Allendale shall pay Radiant the sum of $100,000.00 (“Settlement Payment Amount”). Said Settlement Payment Amount in the form of a\ncheck made payable to “Radiant Technologies, Inc.” shall be forwarded to Radiant upon the execution of this Agreement.\n3. Radiant shall transfer, assign and/or convey to Synova, together with all rights to Today® Product returns authorized by Radiant or Allendale\nor both, all accounts receivable with retailers associated with the sale of said Products outstanding as of April 25, 2007, which accounts receivable\ntotaled approximately $779,000 pursuant to Radiant’s books. Radiant shall provide Synova with written proof and\nPage 3\nconfirmation of the transfer, assignment and/or conveyance of said outstanding accounts receivable, in whatever form is acceptable to the respective\nretailers, within ten (10) days of the execution of this Agreement, or as soon thereafter as is reasonable based upon delays caused by the retailer\naccounts. Further, within three (3) days of collecting any monies involving the outstanding accounts receivable described in this Paragraph 3,\nRadiant shall promptly transfer said monies to Synova.\n4. Allendale agrees to indemnify and hold harmless Radiant for any claims brought by retail customers for product liability, product defects,\nrecalls, retailer credits, or allowances for returns or in store promotions, or any other claims or charges asserted by retail customers in connection\nwith those accounts being transferred, assigned and/or conveyed to Allendale by Radiant pursuant to this Agreement, but only to the extent such\nclaims are not covered by the Parties’ insurance policies. Further, it is agreed that Allendale has no obligation to indemnify and hold harmless\nRadiant as to any claims that result or arise from Radiant’s own negligence or reckless or willful misconduct, nor from any such claims that Radiant\nhas or should have knowledge of at the time this Agreement is executed. Radiant acknowledges that it is not aware of any such claims having been\nasserted, or made or otherwise existing as of the date this Agreement is being executed. Allendale shall name Radiant as an additional named insured\non its products liability policy covering the sale of Allendale products. Allendale acknowledges that, in reliance on this representation by Allendale,\nRadiant is discontinuing all products liability insurance coverage pertaining to the sale of Allendale products.\nPage 4\nB. Parties’ Mutual Release of Claims\nIn consideration of the above, the Parties hereby FULLY, COMPLETELY AND FOREVER RELEASE AND DISCHARGE each other and\neach of their past, present and future parents, affiliates, subsidiaries, divisions, partners, shareholders, officers, directors, employees, representatives,\nagents, servants, attorneys, and the predecessors, heirs, executors, administrators, trustees, successors and assigns of each of them, of and from any\nand all past, present and future claims, actions, causes of action, suits, debts, dues, sums of money, attorneys’ fees, accounts, reckonings, bonds,\nbills, specialties, covenants, contracts, appraisal rights, controversies, judgments, extends, executions, liabilities, demands or obligations of any kind\nwhatsoever, whether in law or equity, which they ever had, now have or hereafter can, shall or may have against each other and each of their past,\npresent and future parents, affiliates, subsidiaries, divisions, partners, shareholders, officers, directors, employees, representatives, agents, servants,\nattorneys, and the predecessors, heirs, executors, administrators, trustees, successors and assigns of each of them, for, upon or by reason of any\nmatter, cause or thing whatsoever, whether now known or unknown, fixed or unliquidated, conditional or contingent, which currently exists or\nsubsequently accrues with respect to any and all claims including, but not limited to, those claims relating to or arising out of the Distribution\nAgreement, the Loan and Credit Agreement and the Stock Purchase Agreement as well as all other claims that were brought or could have been\nbrought in the Lawsuit.\nC. Dismissal With Prejudice\nFor and in consideration of the promises and consideration described in this Agreement, and as a material inducement to the Parties to enter\ninto this Agreement, the Parties willingly and knowingly agree to execute and file with the Court a Stipulation of Dismissal with Prejudice as to any\nand all claims raised in the Lawsuit.\nPage 5\nD. No Admission of Liability\n1. The purpose of this Agreement is to resolve fully, completely and finally all past, present and future matters, controversies, claims, and\ndisputes between and among the Parties.\n2. This Agreement is the result of a compromised settlement of disputed claims and defenses and is not and shall not be construed as an\nadmission or concession of responsibility, liability or any wrongdoing on the part of any Party. To the contrary, the Parties expressly deny any and all\nallegations and claims asserted against each other in the Lawsuit.\n3. The Parties specifically disclaim violating any law or committing any unlawful action against each other, and expressly deny any liability,\nresponsibility or obligation to each other with regard to the allegations and claims raised and asserted in the Lawsuit.\nE. Confidentiality\n1. The terms of this Agreement, the fact that this Agreement has been entered into, and all negotiations leading up to the execution of the\nAgreement, shall be deemed CONFIDENTIAL and shall not be further disclosed to any person or entity except as required by applicable law, rule or\nregulation (including, without limitation, the requirements under any federal or state securities laws, rules or regulations (or any judicial or\nregulatory interpretations thereof) applicable to Synova that may require disclosure of the terms of this Agreement or the fact that this Agreement\nhas been entered into), or with the written consent of the Parties hereto following the execution of\nPage 6\nthis Agreement; provided, however, that nothing in this Agreement shall prevent any Party hereto from disclosing the existence or terms of this\nAgreement in the course of the Parties’ normal business affairs, as regarding communications with their accountants, advisors, insurance companies,\nattorneys, and all regulatory agencies/bodies having a bona fide need to know such information, or in any judicial proceeding to enforce or construe\nthis Agreement.\n2. From and after the date of this Agreement, neither Party shall make any public disparaging statements concerning the officers, directors,\nemployees, attorneys, agents, or of the business or operations, of the other Party. This non-disparagement provision shall not in any way prevent the\nparties from disclosing any information to their attorneys, in response to a lawful subpoena or court order requiring disclosure of information, or in\nconnection with any litigation involving either Party.\nF. Assignment\nThe Parties hereto represent and warrant that they have not assigned nor otherwise transferred or assigned any claims or rights they may have\narising out of or relating in any way to the claims in the Lawsuit, the Distribution Agreement, the Loan and Credit Agreement, and/or the Stock\nPurchase Agreement.\nG. Further Assurances\nRadiant agrees that it will (1) promptly execute and deliver to Synova all further documents, agreements and instruments, (2) deliver in writing\ncustomary representations and warranties, and (3) provide Synova with such other documents or information, reasonably requested by Synova or\nAllendale (whether in connection with or following the execution of this Agreement).\nPage 7\nH. Representations and Warranties\n1. The Parties hereto represent and warrant to each other that the execution and delivery of this Agreement have been done freely and\nvoluntarily and, to the extent necessary, have been duly and validly authorized and approved as need be, and that no further action is necessary to\nmake this Agreement valid and binding on each of the Parties hereto.\n2. The Parties hereto further represent and warrant to each other that:\na. Each Party has participated in the drafting of this Agreement after consulting with counsel;\nb. This Agreement was reviewed and approved by counsel for all Parties and that no Party shall maintain that the language of the\nAgreement should be construed against any other Party by virtue of that Party’s putative role as drafter;\nc. No representations, warranties or promises have been made or relied upon by any of the Parties other than as expressly set forth\nherein;\nd. They have read this Agreement;\ne. They have not been coerced into signing this Agreement;\nf. They have the full and express authority to execute it on behalf of each Party on whose behalf they have signed; and\ng. They understand its contents and are executing it freely and voluntarily with an intent to bind their respective Parties to its terms.\nI.  Entire Agreement\n1. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior written or\noral agreements, understandings, and negotiations.\nPage 8\n2. This Agreement may be modified only by a written amendment signed by the Parties, and no waiver of any provision of this Agreement or\nthe breach thereof shall be effective unless expressed in a writing signed by the waiving Party. The waiver by any Party hereto of any of the\nprovisions of this Agreement or the breach thereof shall not operate or be construed as a waiver of any subsequent or other breach.\nJ.  Governing Law\nThis Agreement shall be interpreted, enforced, and governed under the laws of New Jersey.\nK. Severability\nIf any provision of this Agreement is declared or determined by any court to be illegal or invalid, that part shall be excluded from the\nAgreement, but the validity of the remaining parts, terms, or provisions shall not be affected.\nL. Headings\nHeadings contained herein are for purposes of organization only, and shall not constitute a part of this Agreement.\n[signatures appear on following page]\nPage 9\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on their behalf by the signatures of their duly authorized representatives below.\nALLENDALE PHAMACUETICALS, INC.\nBY: /s/ Robert L. Edwards\nDated: May 31, 2007\nTODAY’S WOMENCARE COMPANY\nBY: /s/ Robert L. Edwards\nDated: May 31, 2007\nSYNOVA HEALTHCARE GROUP, INC.\nBY: /s/ Robert L. Edwards\nDated: May 31, 2007\nPage 10\nRADIANT TECHNOLOGIES, INC.\nBY: /s/ Mitch Gray\nDated: May 31, 2007\nPATHFINDER MANAGEMENT, INC.\nBY: /s/ Mitch Gray\nDated: May 31, 2007	EX-10.2 3 dex102.htm CONFIDENTIAL SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE\nExhibit 10.2\nCONFIDENTIAL SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE\nThis Confidential Settlement Agreement and Mutual General Release ("Agreement"), dated this 31st day of May, 2007, is made and entered\ninto by and between PLAINTIFF/COUNTER-DEFENDANT ALLENDALE PHARMACEUTICALS, INC. ("Allendale"), THIRD-PARTY\nDEFENDANT TODAY'S WOMENCARE COMPANY, and DEFENDANT/COUNTER-CLAIMANT RADIANT TECHNOLOGIES, INC.\n("Radiant").\nI. DEFINITIONS\nThe following terms as used in this Agreement shall be defined as set forth below:\n1. All references to "Allendale" shall refer to Plaintiff/Counter-Defendant Allendale Pharmaceuticals, Inc., its predecessors, successors,\nparents, subsidiaries, affiliated entities, assigns, divisions, directors, officers, shareholders, agents, employees, attorneys and representatives\nincluding, but not limited to, Today's WomenCare Company and Synova Healthcare Group, Inc. ("Synova").\n2. All references to "Radiant" shall refer to Defendant/Counter-Claimant Radiant Technologies, Inc., its predecessors, successors, parents,\nsubsidiaries, affiliated entities, assigns, divisions, directors, officers, shareholders, agents, employees, attorneys and representatives including, but\nnot limited to, Pathfinder Management, Inc.\n3.\nAll references to "Party" or "Parties" shall refer to "Allendale" and "Radiant" as defined above\nPage 1\n4. All references to the "Lawsuit" shall refer to the matter captioned Allendale Pharmaceuticals, Inc. V. Radiant Technologies, Inc., et al.,\nbearing Docket No. 06 CV 3465, filed in the United States District Court for the Southern District of New York.\nII. RECITALS\nWHEREAS Allendale and Radiant entered into an agreement dated March 9, 2004 entitled, "Exclusive Distribution and Services Agreement"\n(the "Distribution Agreement"); and\nWHEREAS Allendale and Radiant entered into an agreement dated March 9, 2004 entitled, "Loan and Credit Agreement" (the "Loan and\nCredit Agreement"); and\nWHEREAS Allendale and Radiant entered into an agreement dated March 9, 2004 entitled, "Common Stock Purchase Agreement" ("Stock\nPurchase Agreement"); and\nWHEREAS Allendale filed the Lawsuit against Radiant on May 5, 2006 asserting a breach of contract claim (Count I), a breach of the\nCovenant of Good Faith and Fair Dealing claim (Count II), and a claim for Declaratory Judgment (Count III); and\nWHEREAS Radiant filed an Answer, Counterclaim, and Third-Party Complaint to the Lawsuit on July 24, 2006 asserting in its Counterclaim\na breach of contract claim (Count I), a claim for Declaratory Judgment (Count II), and a claim for breach of the Loan and Credit Agreement (Count\nIII) and\nWHEREAS Allendale filed an Answer to Radiant's Counterclaim and Third-Party Complaint on August 14, 2006; and\nWHEREAS on January 12, 2007, Synova acquired Allendale by merger; and\nWHEREAS the Parties have agreed to amicably resolve all their differences arising from and related to the Lawsuit.\nPage 2\nNOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties, and in\nconsideration of the foregoing recitals and of the mutual covenants and agreements contained herein, and intending to be legally bound, the Parties\ndo hereby covenant and agree as follows:\nIII. AGREEMENT TERMS\nA. Payment of Settlement Amount, Transfer of Stock and Assignment/Conveyance of Accounts Receivable\n1. Subject to the other conditions and limitations contained herein, Synova, on behalf of Allendale, shall cause to be transferred to Radiant one\nmillion (1,000,000) shares of Synova common stock, which transfer of stock shall occur within ten (10) business days of the execution of this\nAgreement. The parties acknowledge that Radiant's has the right to receive 145,422 shares of Synova common stock in conjunction with the\nJanuary 12, 2007 merger of Allendale with and into a wholly owned subsidiary of Synova, and further acknowledge that nothing in this Agreement\nshall have any affect on Radiant's said current stock ownership.\n2. Allendale shall pay Radiant the sum of $100,000.00 ("Settlement Payment Amount"). Said Settlement Payment Amount in the form of\na\ncheck made payable to "Radiant Technologies, Inc." shall be forwarded to Radiant upon the execution of this Agreement.\n3. Radiant shall transfer, assign and/or convey to Synova, together with all rights to Today Product returns authorized by Radiant or Allendale\nor both, all accounts receivable with retailers associated with the sale of said Products outstanding as of April 25, 2007, which accounts receivable\ntotaled approximately $779,000 pursuant to Radiant's books. Radiant shall provide Synova with written proof and\nPage 3\nconfirmation of the transfer, assignment and/or conveyance of said outstanding accounts receivable, in whatever form is acceptable to the respective\nretailers, within ten (10) days of the execution of this Agreement, or as soon thereafter as is reasonable based upon delays caused by the retailer\naccounts. Further, within three (3) days of collecting any monies involving the outstanding accounts receivable described in this Paragraph 3,\nRadiant shall promptly transfer said monies to Synova.\n4. Allendale agrees to indemnify and hold harmless Radiant for any claims brought by retail customers for product liability, product defects,\nrecalls, retailer credits, or allowances for returns or in store promotions, or any other claims or charges asserted by retail customers in connection\nwith those accounts being transferred, assigned and/or conveyed to Allendale by Radiant pursuant to this Agreement, but only to the extent such\nclaims are not covered by the Parties' insurance policies. Further, it is agreed that Allendale has no obligation to indemnify and hold harmless\nRadiant as to any claims that result or arise from Radiant's own negligence or reckless or willful misconduct, nor from any such claims that Radiant\nhas or should have knowledge of at the time this Agreement is executed. Radiant acknowledges that it is not aware of any such claims having been\nasserted, or made or otherwise existing as of the date this Agreement is being executed. Allendale shall name Radiant as an additional named insured\non its products liability policy covering the sale of Allendale products. Allendale acknowledges that, in reliance on this representation by Allendale,\nRadiant is discontinuing all products liability insurance coverage pertaining to the sale of Allendale products.\nPage 4\nB.\nParties' Mutual Release of Claims\nIn consideration of the above, the Parties hereby FULLY, COMPLETELY AND FOREVER RELEASE AND DISCHARGE each other and\neach of their past, present and future parents, affiliates, subsidiaries, divisions, partners, shareholders, officers, directors, employees, representatives,\nagents, servants, attorneys, and the predecessors, heirs, executors, administrators, trustees, successors and assigns of each of them, of and from any\nand all past, present and future claims, actions, causes of action, suits, debts, dues, sums of money, attorneys' fees, accounts, reckonings, bonds,\nbills, specialties, covenants, contracts, appraisal rights, controversies, judgments, extends, executions, liabilities, demands or obligations of any kind\nwhatsoever, whether in law or equity, which they ever had, now have or hereafter can, shall or may have against each other and each of their past,\npresent and future parents, affiliates, subsidiaries, divisions, partners, shareholders, officers, directors, employees, representatives, agents, servants,\nattorneys, and the predecessors, heirs, executors, administrators, trustees, successors and assigns of each of them, for, upon or by reason of any\nmatter, cause or thing whatsoever, whether now known or unknown, fixed or unliquidated, conditional or contingent, which currently exists or\nsubsequently accrues with respect to any and all claims including, but not limited to, those claims relating to or arising out of the Distribution\nAgreement, the Loan and Credit Agreement and the Stock Purchase Agreement as well as all other claims that were brought or could have been\nbrought in the Lawsuit.\nC. Dismissal With Prejudice\nFor and in consideration of the promises and consideration described in this Agreement, and as a material inducement to the Parties to enter\ninto this Agreement, the Parties willingly and knowingly agree to execute and file with the Court a Stipulation of Dismissal with Prejudice as to any\nand all claims raised in the Lawsuit.\nPage 5\nD.\nNo Admission of Liability.\n1. The purpose of this Agreement is to resolve fully, completely and finally all past, present and future matters, controversies, claims, and\ndisputes between and among the Parties.\n2. This Agreement is the result of a compromised settlement of disputed claims and defenses and is not and shall not be construed as an\nadmission or concession of responsibility, liability or any wrongdoing on the part of any Party. To the contrary, the Parties expressly deny any and\nall\nallegations and claims asserted against each other in the Lawsuit.\n3. The Parties specifically disclaim violating any law or committing any unlawful action against each other, and expressly deny any liability,\nresponsibility or obligation to each other with regard to the allegations and claims raised and asserted in the Lawsuit.\nE. Confidentiality.\n1. The terms of this Agreement, the fact that this Agreement has been entered into, and all negotiations leading up to the execution of the\nAgreement, shall be deemed CONFIDENTIAL and shall not be further disclosed to any person or entity except as required by applicable law, rule or\nregulation (including, without limitation, the requirements under any federal or state securities laws, rules or regulations (or any judicial or\nregulatory interpretations thereof) applicable to Synova that may require disclosure of the terms of this Agreement or the fact that this Agreement\nhas been entered into), or with the written consent of the Parties hereto following the execution of\nPage 6\nthis Agreement; provided, however, that nothing in this Agreement shall prevent any Party hereto from disclosing the existence or terms of this\nAgreement in the course of the Parties' normal business affairs, as regarding communications with their accountants, advisors, insurance companies,\nattorneys, and all regulatory agencies/bodies having a bona fide need to know such information, or in any judicial proceeding to enforce or construe\nthis Agreement.\n2.\nFrom and after the date of this Agreement, neither Party shall make any public disparaging statements concerning the officers, directors,\nemployees, attorneys, agents, or of the business or operations, of the other Party. This non-disparagement provision shall not in any way prevent the\nparties from disclosing any information to their attorneys, in response to a lawful subpoena or court order requiring disclosure of information, or in\nconnection with any litigation involving either Party.\nF. Assignment\nThe Parties hereto represent and warrant that they have not assigned nor otherwise transferred or assigned any claims or rights they may have\narising out of or relating in any way to the claims in the Lawsuit, the Distribution Agreement, the Loan and Credit Agreement, and/or the Stock\nPurchase Agreement.\nG. Further Assurances\nRadiant agrees that it will (1) promptly execute and deliver to Synova all further documents, agreements and instruments, (2) deliver in writing\ncustomary representations and warranties, and (3) provide Synova with such other documents or information, reasonably requested by Synova\nor\nAllendale (whether in connection with or following the execution of this Agreement).\nPage 7\nH.\nRepresentations and Warranties\n1. The Parties hereto represent and warrant to each other that the execution and delivery of this Agreement have been done freely and\nvoluntarily and, to the extent necessary, have been duly and validly authorized and approved as need be, and that no further action is necessary to\nmake this Agreement valid and binding on each of the Parties hereto.\n2. The Parties hereto further represent and warrant to each other that:\na. Each Party has participated in the drafting of this Agreement after consulting with counsel;\nb. This Agreement was reviewed and approved by counsel for all Parties and that no Party shall maintain that the language of the\nAgreement should be construed against any other Party by virtue of that Party's putative role as drafter;\nC. No representations, warranties or promises have been made or relied upon by any of the Parties other than as expressly set forth\nherein;\nd. They have read this Agreement;\ne. They have not been coerced into signing this Agreement;\nf. They have the full and express authority to execute it on behalf of each Party on whose behalf they have signed; and\ng. They understand its contents and are executing it freely and voluntarily with an intent to bind their respective Parties to its terms.\nI.\nEntire Agreement\n1. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior written or\noral agreements, understandings, and negotiations.\nPage 8\n2.\nThis Agreement may be modified only by a written amendment signed by the Parties, and no waiver of any provision of this Agreement\nor\nthe breach thereof shall be effective unless expressed in a writing signed by the waiving Party. The waiver by any Party hereto of any of the\nprovisions of this Agreement or the breach thereof shall not operate or be construed as a waiver of any subsequent or other breach.\nJ.\nGoverning Law\nThis Agreement shall be interpreted, enforced, and governed under the laws of New Jersey.\nK. Severability\nIf any provision of this Agreement is declared or determined by any court to be illegal or invalid, that part shall be excluded from the\nAgreement, but the validity of the remaining parts, terms, or provisions shall not be affected.\nL. Headings\nHeadings contained herein are for purposes of organization only, and shall not constitute a part of this Agreement.\n[signatures appear on following page]\nPage 9\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on their behalf by the signatures of their duly authorized\nrepresentatives below.\nALLENDALE PHAMACUETICALS, INC.\nRADIANT TECHNOLOGIES, INC.\nBY:\n/s/ Robert L. Edwards\nBY:\n/s/ Mitch Gray\nDated: May 31, 2007\nDated: May 31, 2007\nTODAY'S WOMENCARE COMPANY\nPATHFINDER MANAGEMENT, INC.\nBY:\n/s/ Robert L. Edwards\nBY:\n/s/ Mitch Gray\nDated: May 31, 2007\nDated: May 31, 2007\nSYNOVA HEALTHCARE GROUP, INC.\nBY:\n/s/ Robert L. Edwards\nDated: May 31, 2007\nPage 10	EX-10.2 3 dex102.htm CONFIDENTIAL SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE\nExhibit 10.2\nCONFIDENTIAL SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE\nThis Confidential Settlement Agreement and Mutual General Release (“Agreement”), dated this 31st day of May, 2007, is made and entered\ninto by and between PLAINTIFF/COUNTER-DEFENDANT ALLENDALE PHARMACEUTICALS, INC. (“Allendale”), THIRD-PARTY\nDEFENDANT TODAY’S WOMENCARE COMPANY, and DEFENDANT/COUNTER-CLAIMANT RADIANT TECHNOLOGIES, INC.\n(“Radiant”).\nI. DEFINITIONS\nThe following terms as used in this Agreement shall be defined as set forth below:\n1. All references to “Allendale” shall refer to Plaintiff/Counter-Defendant Allendale Pharmaceuticals, Inc., its predecessors, successors,\nparents, subsidiaries, affiliated entities, assigns, divisions, directors, officers, shareholders, agents, employees, attorneys and representatives\nincluding, but not limited to, Today’s WomenCare Company and Synova Healthcare Group, Inc. (“Synova”).\n2. All references to “Radiant” shall refer to Defendant/Counter-Claimant Radiant Technologies, Inc., its predecessors, successors, parents,\nsubsidiaries, affiliated entities, assigns, divisions, directors, officers, shareholders, agents, employees, attorneys and representatives including, but\nnot limited to, Pathfinder Management, Inc.\n3. All references to “Party” or “Parties” shall refer to “Allendale” and “Radiant” as defined above.\nPage 1\n4. All references to the “Lawsuit” shall refer to the matter captioned Allendale Pharmaceuticals, Inc. v. Radiant Technologies, Inc., et al.,\nbearing Docket No. 06 CV 3465, filed in the United States District Court for the Southern District of New York.\nII. RECITALS\nWHEREAS Allendale and Radiant entered into an agreement dated March 9, 2004 entitled, “Exclusive Distribution and Services Agreement”\n(the “Distribution Agreement”); and\nWHEREAS Allendale and Radiant entered into an agreement dated March 9, 2004 entitled, “Loan and Credit Agreement” (the “Loan and\nCredit Agreement”); and\nWHEREAS Allendale and Radiant entered into an agreement dated March 9, 2004 entitled, “Common Stock Purchase Agreement” (“Stock\nPurchase Agreement”); and\nWHEREAS Allendale filed the Lawsuit against Radiant on May 5, 2006 asserting a breach of contract claim (Count I), a breach of the\nCovenant of Good Faith and Fair Dealing claim (Count II), and a claim for Declaratory Judgment (Count III); and\nWHEREAS Radiant filed an Answer, Counterclaim, and Third-Party Complaint to the Lawsuit on July 24, 2006 asserting in its Counterclaim\na breach of contract claim (Count I), a claim for Declaratory Judgment (Count II), and a claim for breach of the Loan and Credit Agreement (Count\nIII); and\nWHEREAS Allendale filed an Answer to Radiant’s Counterclaim and Third-Party Complaint on August 14, 2006; and\nWHEREAS on January 12, 2007, Synova acquired Allendale by merger; and\nWHEREAS the Parties have agreed to amicably resolve all their differences arising from and related to the Lawsuit.\nPage 2\nNOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties, and in\nconsideration of the foregoing recitals and of the mutual covenants and agreements contained herein, and intending to be legally bound, the Parties\ndo hereby covenant and agree as follows:\nIII. AGREEMENT TERMS\nA. Payment of Settlement Amount, Transfer of Stock and Assignment/Conveyance of Accounts Receivable\n1. Subject to the other conditions and limitations contained herein, Synova, on behalf of Allendale, shall cause to be transferred to Radiant one\nmillion (1,000,000) shares of Synova common stock, which transfer of stock shall occur within ten (10) business days of the execution of this\nAgreement. The parties acknowledge that Radiant’s has the right to receive 145,422 shares of Synova common stock in conjunction with the\nJanuary 12, 2007 merger of Allendale with and into a wholly owned subsidiary of Synova, and further acknowledge that nothing in this Agreement\nshall have any affect on Radiant’s said current stock ownership.\n2. Allendale shall pay Radiant the sum of $100,000.00 (“Settlement Payment Amount”). Said Settlement Payment Amount in the form of a\ncheck made payable to “Radiant Technologies, Inc.” shall be forwarded to Radiant upon the execution of this Agreement.\n3. Radiant shall transfer, assign and/or convey to Synova, together with all rights to Today® Product returns authorized by Radiant or Allendale\nor both, all accounts receivable with retailers associated with the sale of said Products outstanding as of April 25, 2007, which accounts receivable\ntotaled approximately $779,000 pursuant to Radiant’s books. Radiant shall provide Synova with written proof and\nPage 3\nconfirmation of the transfer, assignment and/or conveyance of said outstanding accounts receivable, in whatever form is acceptable to the respective\nretailers, within ten (10) days of the execution of this Agreement, or as soon thereafter as is reasonable based upon delays caused by the retailer\naccounts. Further, within three (3) days of collecting any monies involving the outstanding accounts receivable described in this Paragraph 3,\nRadiant shall promptly transfer said monies to Synova.\n4. Allendale agrees to indemnify and hold harmless Radiant for any claims brought by retail customers for product liability, product defects,\nrecalls, retailer credits, or allowances for returns or in store promotions, or any other claims or charges asserted by retail customers in connection\nwith those accounts being transferred, assigned and/or conveyed to Allendale by Radiant pursuant to this Agreement, but only to the extent such\nclaims are not covered by the Parties’ insurance policies. Further, it is agreed that Allendale has no obligation to indemnify and hold harmless\nRadiant as to any claims that result or arise from Radiant’s own negligence or reckless or willful misconduct, nor from any such claims that Radiant\nhas or should have knowledge of at the time this Agreement is executed. Radiant acknowledges that it is not aware of any such claims having been\nasserted, or made or otherwise existing as of the date this Agreement is being executed. Allendale shall name Radiant as an additional named insured\non its products liability policy covering the sale of Allendale products. Allendale acknowledges that, in reliance on this representation by Allendale,\nRadiant is discontinuing all products liability insurance coverage pertaining to the sale of Allendale products.\nPage 4\nB. Parties’ Mutual Release of Claims\nIn consideration of the above, the Parties hereby FULLY, COMPLETELY AND FOREVER RELEASE AND DISCHARGE each other and\neach of their past, present and future parents, affiliates, subsidiaries, divisions, partners, shareholders, officers, directors, employees, representatives,\nagents, servants, attorneys, and the predecessors, heirs, executors, administrators, trustees, successors and assigns of each of them, of and from any\nand all past, present and future claims, actions, causes of action, suits, debts, dues, sums of money, attorneys’ fees, accounts, reckonings, bonds,\nbills, specialties, covenants, contracts, appraisal rights, controversies, judgments, extends, executions, liabilities, demands or obligations of any kind\nwhatsoever, whether in law or equity, which they ever had, now have or hereafter can, shall or may have against each other and each of their past,\npresent and future parents, affiliates, subsidiaries, divisions, partners, shareholders, officers, directors, employees, representatives, agents, servants,\nattorneys, and the predecessors, heirs, executors, administrators, trustees, successors and assigns of each of them, for, upon or by reason of any\nmatter, cause or thing whatsoever, whether now known or unknown, fixed or unliquidated, conditional or contingent, which currently exists or\nsubsequently accrues with respect to any and all claims including, but not limited to, those claims relating to or arising out of the Distribution\nAgreement, the Loan and Credit Agreement and the Stock Purchase Agreement as well as all other claims that were brought or could have been\nbrought in the Lawsuit.\nC. Dismissal With Prejudice\nFor and in consideration of the promises and consideration described in this Agreement, and as a material inducement to the Parties to enter\ninto this Agreement, the Parties willingly and knowingly agree to execute and file with the Court a Stipulation of Dismissal with Prejudice as to any\nand all claims raised in the Lawsuit.\nPage 5\nD. No Admission of Liability\n1. The purpose of this Agreement is to resolve fully, completely and finally all past, present and future matters, controversies, claims, and\ndisputes between and among the Parties.\n2. This Agreement is the result of a compromised settlement of disputed claims and defenses and is not and shall not be construed as an\nadmission or concession of responsibility, liability or any wrongdoing on the part of any Party. To the contrary, the Parties expressly deny any and all\nallegations and claims asserted against each other in the Lawsuit.\n3. The Parties specifically disclaim violating any law or committing any unlawful action against each other, and expressly deny any liability,\nresponsibility or obligation to each other with regard to the allegations and claims raised and asserted in the Lawsuit.\nE. Confidentiality\n1. The terms of this Agreement, the fact that this Agreement has been entered into, and all negotiations leading up to the execution of the\nAgreement, shall be deemed CONFIDENTIAL and shall not be further disclosed to any person or entity except as required by applicable law, rule or\nregulation (including, without limitation, the requirements under any federal or state securities laws, rules or regulations (or any judicial or\nregulatory interpretations thereof) applicable to Synova that may require disclosure of the terms of this Agreement or the fact that this Agreement\nhas been entered into), or with the written consent of the Parties hereto following the execution of\nPage 6\nthis Agreement; provided, however, that nothing in this Agreement shall prevent any Party hereto from disclosing the existence or terms of this\nAgreement in the course of the Parties’ normal business affairs, as regarding communications with their accountants, advisors, insurance companies,\nattorneys, and all regulatory agencies/bodies having a bona fide need to know such information, or in any judicial proceeding to enforce or construe\nthis Agreement.\n2. From and after the date of this Agreement, neither Party shall make any public disparaging statements concerning the officers, directors,\nemployees, attorneys, agents, or of the business or operations, of the other Party. This non-disparagement provision shall not in any way prevent the\nparties from disclosing any information to their attorneys, in response to a lawful subpoena or court order requiring disclosure of information, or in\nconnection with any litigation involving either Party.\nF. Assignment\nThe Parties hereto represent and warrant that they have not assigned nor otherwise transferred or assigned any claims or rights they may have\narising out of or relating in any way to the claims in the Lawsuit, the Distribution Agreement, the Loan and Credit Agreement, and/or the Stock\nPurchase Agreement.\nG. Further Assurances\nRadiant agrees that it will (1) promptly execute and deliver to Synova all further documents, agreements and instruments, (2) deliver in writing\ncustomary representations and warranties, and (3) provide Synova with such other documents or information, reasonably requested by Synova or\nAllendale (whether in connection with or following the execution of this Agreement).\nPage 7\nH. Representations and Warranties\n1. The Parties hereto represent and warrant to each other that the execution and delivery of this Agreement have been done freely and\nvoluntarily and, to the extent necessary, have been duly and validly authorized and approved as need be, and that no further action is necessary to\nmake this Agreement valid and binding on each of the Parties hereto.\n2. The Parties hereto further represent and warrant to each other that:\na. Each Party has participated in the drafting of this Agreement after consulting with counsel;\nb. This Agreement was reviewed and approved by counsel for all Parties and that no Party shall maintain that the language of the\nAgreement should be construed against any other Party by virtue of that Party’s putative role as drafter;\nc. No representations, warranties or promises have been made or relied upon by any of the Parties other than as expressly set forth\nherein;\nd. They have read this Agreement;\ne. They have not been coerced into signing this Agreement;\nf. They have the full and express authority to execute it on behalf of each Party on whose behalf they have signed; and\ng. They understand its contents and are executing it freely and voluntarily with an intent to bind their respective Parties to its terms.\nI. Entire Agreement\n1. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior written or\noral agreements, understandings, and negotiations.\nPage 8\n2. This Agreement may be modified only by a written amendment signed by the Parties, and no waiver of any provision of this Agreement or\nthe breach thereof shall be effective unless expressed in a writing signed by the waiving Party. The waiver by any Party hereto of any of the\nprovisions of this Agreement or the breach thereof shall not operate or be construed as a waiver of any subsequent or other breach.\nJ. Governing Law\nThis Agreement shall be interpreted, enforced, and governed under the laws of New Jersey.\nK. Severability\nIf any provision of this Agreement is declared or determined by any court to be illegal or invalid, that part shall be excluded from the\nAgreement, but the validity of the remaining parts, terms, or provisions shall not be affected.\nL. Headings\nHeadings contained herein are for purposes of organization only, and shall not constitute a part of this Agreement.\n[signatures appear on following page]\nPage 9\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on their behalf by the signatures of their duly authorized\nrepresentatives below.\nALLENDALE PHAMACUETICALS, INC.\nRADIANT TECHNOLOGIES, INC.\nBY: /s/ Robert L. Edwards\nBY: /s/ Mitch Gray\nDated: May 31, 2007\nDated: May 31, 2007\nTODAY’S WOMENCARE COMPANY\nPATHFINDER MANAGEMENT, INC.\nBY: /s/ Robert L. Edwards\nBY: /s/ Mitch Gray\nDated: May 31, 2007\nDated: May 31, 2007\nSYNOVA HEALTHCARE GROUP, INC.\nBY: /s/ Robert L. Edwards\nDated: May 31, 2007\nPage 10
+b77f708578a647ba3da13feac42d65fc.pdf	effective_date jurisdiction party term	EX-10.8 3 d62023dex108.htm FORM OF PATENT AND CONFIDENTIALITY AGREEMENT\nExhibit 10.8\nINTELLECTUAL PROPERTY AND CONFIDENTIALITY AGREEMENT\nThis INTELLECTUAL PROPERTY AND CONFIDENTIALITY AGREEMENT (the “Agreement”), effective as of\n,\n201 , is made by and between FARO Technologies, Inc., a Florida Corporation, including its subsidiaries and affiliates (hereinafter collectively\n“FARO” or “Employer”), and\n(“Employee”).\nIn consideration of the Employee’s employment by FARO, the compensation paid and to be paid to Employee by FARO, and\nEmployer’s agreement to provide Employee access to Employer ’s Confidential Information (as defined below) and Trade Secrets (as defined\nbelow and as defined under Florida law) and other good and valuable consideration, the receipt and sufficiency of which is hereby\nacknowledged, Employee hereby warrants and agrees to be legally bound as follows:\n1. Definitions\na. “Business” means (1) all aspects related to 3-D measurement, imaging or realization systems, including but not limited\nto the design, development, manufacture, marketing, sale, offer for sale and support of such 3-D measurement, imaging or realization\nsystems, and (2) any other technology, product, process, apparatus, service, research or development on which Employee worked or\nhad access to Confidential Information while employed by FARO.\nb. “Confidential Information” shall mean information, other than Trade Secrets, which relates to Employer, Employer ’s\nactivities, Employer’s business or Employer ’s suppliers or customers that is not generally known by persons not employed by\nEmployer, and which is or has been disclosed to Employee or of which Employee became aware as a consequence of or through his\nor her relationship to Employer. This includes but is not limited to FARO’s know-how; accounts; pricing and cost information;\nmarketing techniques and plans; computer programs and software; coding systems and processes; computer networking concepts and\nprocesses; source code; contract terms and prospective contract terms with existing and prospective customers, accounts and other\npersons or entities with whom FARO has or contemplates a business relationship; actual or potential customers and purchasers;\nconfidential information of any customer; products; product designs; design documentation; formulas; concepts; inventions; research;\nmethods; processes; operations; product uses; product quality analysis; and other information related to the Business that is not\ngenerally publicly known. “Confidential Information” shall not include information that has become generally available to the public\nby the act of one who has the right to disclose such information without violating any legal right or privilege of Employer.\nc. “Customer” means any individual or entity to whom Employer has sold products or services related to the Business, and\nwith whom Employee had contact, alone or in conjunction with others, on behalf of Employer during the twelve (12) months\nimmediately prior to the termination of his or her employment.\nd. “Prospective Customer” means any individual or entity who is not a Customer, to whom Employer has marketed or\npresented products or services related to the Business, and with whom Employee had contact, alone or in conjunction with others, on\nbehalf of Employer during the twelve (12) months immediately prior to the termination of his or her employment.\ne. “Trade Secrets” shall mean all information, without regard to form, including, but not limited to, technical or\nnontechnical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data,\nfinancial plans, product plans, distribution lists or a list of actual or potential customers, advertisers or suppliers which is not\ncommonly known by or available to the public and which information: (A) derives economic value, actual or potential, from not\nbeing generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value\nfrom its disclosure or use; and (B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Without\nlimiting the foregoing, Trade Secrets include any documents or information that constitute a “trade secret(s)” under the common law\nor statutory law of the State of Florida and generally includes all source codes and object codes for Employer software, all buyer and\nseller information and all lists of clients or suppliers to the extent that such information fits within the Florida Trade Secrets Act.\nNothing in this Agreement is intended, or shall be construed, to limit the definitions or protections of the Florida Trade Secrets Act or\nany other applicable law protecting trade secrets or other confidential information. Trade Secrets shall not include information that\nhas become generally available to the public by the act of one who has the right to disclose such information without violating any\nlegal right or privilege of Employer.\n2. Acknowledgement of FARO’s Right To Protection of Business Interests. Employee acknowledges and agrees that this Agreement,\nincluding but not limited to the covenants not to compete contained herein, are necessary to allow FARO to protect its legitimate\nbusiness interests, including but not limited to its Confidential Information and customer goodwill. Accordingly, Employee agrees\nthat this Agreement, including but not limited to the covenants not to compete contained herein, are reasonable and necessary to\nallow FARO to protect its legitimate business interests.\nPage 1\n3. Confidentiality Restriction.\na. Nature and Restriction. Employee covenants and agrees that: (i) during his or her employment with Employer he or\nshe will not use or disclose any Trade Secrets or Confidential Information of Employer other than as necessary in connection with the\nperformance of his or her duties for Employer, and (ii) for a period of five (5) years immediately following the termination of his or\nher employment with Employer, Employee shall not, directly or indirectly, intentionally, or negligently, in any fashion, form, or\nmanner, transmit, divulge, communicate, or disclose any Trade Secrets or Confidential Information of Employer to any person and\nshall not make use of any such Trade Secrets or Confidential Information, directly or indirectly, for himself or herself or others,\nwithout the prior written consent of Employer, except for a disclosure that is required by any law or order, in which case Employee\nshall provide Employer prior written notice of such requirement and an opportunity to contest such disclosure. However, to the extent\nthat such information is a “trade secret” as that term is defined under a state or federal law, this subparagraph is not intended to, and\ndoes not, limit Employer ’s rights or remedies thereunder, and the time period for prohibition on disclosure or use of such information\nis until such information becomes generally known to the public through the act of one who has the right to disclose such information\nwithout violating any legal right or privilege of Employer. Notwithstanding anything herein to the contrary, nothing in this agreement\nshall (i) prohibit Employee from making reports of possible violations of federal law or regulation to any governmental agency or\nentity in accordance with the provisions of an d rules promulgated under Section 21F of the Securities Exchange Act of 1934 or\nSection 806 of the Sarbanes-Oxley Act of 2002, or of any other whistleblower protection provisions of state or federal law or\nregulation, or (ii) require notification or pr ior approval by Employer of any reporting described in clause (i).\nb. Prior Confidentiality Restrictions. Employee covenants and agrees that Employee will not disclose to FARO or\notherwise use in the course of employment with FARO any confidential or trade secret information that is subject to a ny agreements\nto which Employee is bound that arose prior to employment with FARO.\nc. Return of Information. Employee agrees that he or she shall return to Employer ’s offices in Lake Mary, Florida, all\nTrade Secrets, Confidential Information, documents, and other property of Employer immediately upon the termination of his or her\nemployment with Employer or upon any earlier request by Employer.\nd. Effect of Disclosure. Employee acknowledges that any disclosure to any third party of Trade Secrets or Confidential\nInformation not expressly allowed by this Agreement is detrimental to the Employer. In the event that any Trade Secret or\nConfidential Information is disclosed by Employee in violation of this Agreement, Employee shall be immediately, directly, and\nprincipally liable, with no limitation, for any and all costs, claims and damages (including, but not limited to, special, indirect,\nincidental and consequential damages, and reasonable attorneys’ fees and costs of litigation) sustained by Employer as a result of\nsuch disclosure.\ne. Consideration For Disclosure of Trade Secrets and Confidential Information. Employee understands and agrees\nthat he or she has entered into this Agreement and, if applicable, the Non-Competition and Non-Solicitation Addendum referenced in\nthis Agreement, in consideration for and as a condition of Employer ’s agreement to provide Employee access to Employer’s\nConfidential Information and Trade Secrets.\n4. Assignment of Work Product; Disclosure; Confidentiality.\na. If at any time or times during Employee’s employment with FARO, Employee shall (either alone or with others) make,\nconceive, create, discover or reduce to practice any invention, idea, product, process, formula, method, plans, modification,\ndiscovery, design, development, improvement, process, software program, work of authorship, documentation, formula, data,\ntechnique, know-how, trade secret or intellectual property right whatsoever or any interest therein (whether or not patentable or\nregistrable under copyright, trademark or similar statutes or subject to analogous protection) that ( i) relates to the Business of FARO,\n(ii) results from tasks assigned to the Employee by FARO or (iii) results from the use of premises or personal property (whether\ntangible or intangible) owned, leased or contracted for by FARO (herein called “Work Product”), such Work Product and the benefits\nthereof shall immediately become the sole and absolute property of FARO and its successors and assigns.\nb. Without further consideration, upon the earlier of the making, conception, creation, discovery or reduction to practice of\nsuch Work Product, whether solely or jointly with others, Employee gives, transfers and hereby assigns to Employer (or to any agent,\nnominee or assignee, as requested by Employer) Employee’s right, title and interest to all such Work Product and all intellectual\nproperty rights related thereto.\nc. Employee agrees to fully disclose exclusively to Employer all Work Product. All disclosures of Work Product are to be\nmade in writing and promptly after the earlier of the making, conception, creation, discovery or reduction topractice of such Work\nProduct. For the avoidance of doubt, Employer shall own all Work Product regardless of whether Employee actually discloses such\nWork Product to Employer.\nPage 2\nd. During the period of Employee’s employment with Employer and at all times after the termination thereof, Employee\nagrees to provide all reasonably necessary assistance to Employer (including but not limited to testifying in any proceedings or suit,\nand executing any and all applications, assignments, or other documents or instruments): (1) in connection with Employer seeking to\nprotect any Work Product, including but not limited to the preparation, filing and/or prosecution of any patent applications,\ntrademarks or trade names or copyrights in the United States and any foreign country (as well as any state or other subdivision\nthereof); and the assertion of any such patents, trademarks, trade names or copyrights against a third party; and/or (2) to vest\nEmployer (and its successors and assigns) with all right, title and interest in the Work Product. Should Employee fail or refuse to\nprovide such assistance and/or execute any such document, Employee hereby irrevocably appoints Employer as its attorney-in-fact to\nprepare and/or execute such documents in the name of Employee and on his/her behalf, and to institute and prosecute any\nproceedings as FARO may deem necessary or appropriate to secure, protect, or enforce the Work Product.\ne. Employee represents and warrants that there are no ideas, products, formulas, methods, plans, developments,\nimprovements or patentable inventions in any way related to the Business which Employee desires to exclude from the operation of\nthis Agreement, except those, if any, designated by a patent number, application serial number or brief description where no\napplication has been filed, on the list attached hereto as Exhibit A and signed by Employee and Employer.\nf. Employer allows certain of its employees to have access to the following on-line services: Microsoft Exchange, all\nFARO servers, and the Internet. Employee shall use such services in connection with the Business and in accordance with FARO\npolicies and procedures, as they may change from time to time, which limit use of such services for personal reasons or other\npurposes not related to the Business. Furthermore, Employee is advised that under certain circumstances transmission of data or\nmessages on the Internet or through Internet e-mail is not secure and that the transmission of Confidential Information on the Internet\nor through Internet e-mail must comply with Employer-established appropriate safeguards against the interception or misdelivery of\nsuch information including, but not limited to the establishment of firewalls, encryption methods, or other technology that will\nprevent the unintended interception of data transmission by third parties on the Internet or any other on-line service.\ng. The foregoing obligations of confidentiality shall cease to apply to such parts of the Confidential Information if the\ninformation becomes general public knowledge through no fault of Employee or if Employee has the prior written permission of\nFARO.\nh. Upon termination of employment for whatever reason, Employee represents, warrants, covenants and agrees to deliver\nto Employer at Employer ’s offices in Lake Mary, Florida, all Confidential Information (including but not limited to all books,\nrecords, products, formulas, manuals, letters, notes, memoranda, notebooks, sketches, drawings, plans, equipment, computer files and\nspreadsheets, and all other documents or materials that comprise Confidential Information, and also all copies of any of the\nforegoing), which are in Employee’s or his agents’ or affiliates’ possession or control, and Employee specifically agrees that\nEmployee shall not retain any copies or reproductions of such Confidential Information.\n5. Non-Competition and Non-Solicitation. If a “Non-Competition and Non-Solicitation Agreement” is attached hereto, the Employee\nagrees to the terms thereof, and such Non-Competition and Non-Solicitation Agreement is hereby incorporated into and made part of\nthis Agreement.\nSuch Addendum is\nis not\nattached.\n6. Remedies: The failure of the Employee to comply with the terms of this Agreement shall be cause for immediate dismissal from\nemployment, and in addition Employer shall have the following remedies:\na. Indemnification. Employee hereby agrees to indemnify the Employer in respect of any and all claims, losses, costs,\nliabilities and expenses (including reasonable attorneys’ and legal assistants’ fees) directly or indirectly resulting from or arising out\nof any breach of this Agreement, including for appeals.\nb. Injunctive Relief. Employee admits and agrees that Employee’s breach of the Agreement, including the confidentiality\nrestrictions and, if applicable, the non-compete and non-solicitation restrictions would result in irreparable harm to Employer, and\nthat Employer ’s remedy at law for such a breach will be inadequate. Accordingly, it is agreed that Employer shall be entitled, upon\napplication to a court of competent jurisdiction, to obtain injunctive relief to enforce the provisions of this Agreement, which\ninjunctive relief shall be in addition to any other rights or remedies available to Employer. In any action or\nPage 3\nproceeding by Employer to obtain a temporary restraining order and/or preliminary injunction, Employee hereby agrees to waive the\nnecessity of the Employer’s posting an injunction bond in order to obtain the temporary restraining order and/or prelimin ary\ninjunction. Employee also agrees that he or she shall be responsible for all damages incurred by Employer due to any breach of the\nrestrictive covenants contained in this Agreement. If Employer ’s action for a temporary restraining order and/or motion for\npreliminary injunction is granted in whole or in part and Employer is ultimately unsuccessful in obtaining a permanent injunction to\nenforce the covenant, Employee hereby waives any and all rights he or she may have against the Employer for any injuries or\ndamages, including consequential damages, sustained by Employee and arising directly or indirectly from the issuance of the\ntemporary restraining order and/or preliminary injunction.\nc. Other Remedies. In addition to injunctive relief, FARO shall be entitled to any other remedy available in law or equity\nby reason of Employee’s breach or threatened breach of the restrictions contained herein.\nd. Recovery of Attorneys’ Fees and Costs. If Employer engages the services of an attorney or any other third party or in\nany way initiates legal action to enforce its rights under this Agreement and Employer prevails in its legal action, Employee agrees to\npay to the Employer all costs and expenses incurred by Employer relating to the enforcement of this Agreement (including reasonable\nattorneys’ and legal assistants’ fees before, at, and after trial and in appellate, bankruptcy and probate proceedings).\n7. Governing Law. This Agreement shall be governed by and construed according to the laws of the State of Florida, without regard to\nits conflicts of law principles.\n8. Venue and Forum Selection Clause; Consent to Jurisdiction. Any action at law, suit in equity, or other judicial proceeding arising\nout of or related to this Agreement shall be instituted and maintained in the Courts in and for Orange County, Florida. Each party\nwaives the right to change venue. Employee agrees to exclusively submit to personal jurisdiction in the federal and state courts in or\nfor Orange County, Florida and no other place. Employee agrees that any action at law, suit in equity, or other judicial proceeding to\nenforce this Agreement, as well as any action at law, suit in equity, or other judicial proceeding relating to or arising out of this\nAgreement, shall be filed only in: (a) the United States District Court for the Middle District of Florida, Orlando Division; or (b) the\nBusiness Court of the Ninth Judicial Circuit Court of Orange County, Florida. With respect to any such court action, Employee\nhereby (a) irrevocably submits to the personal jurisdiction of such courts; (b) consents to service of process; (c) consents to venue;\nand (d) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction,\nservice of process, or venue. Both parties hereto further agree that the Business Court of the Ninth Judicial Circuit Court of Orange\nCounty, Florida and the United States District Court for the Middle District of Florida, Orlando Division, are convenient forums for\nany dispute that may arise herefrom and that neither party shall raise as a defense that such courts are not convenient forums.\n9. Assignment of Rights. FARO has the right to assign or transfer this Agreement, including any of its rights hereunder to any assignee\nor successor of FARO, which assignee or successor is then expressly authorized to enforce the terms of this Agreement. This\nAgreement is personal to the Employee and not assignable or transferable by Employee and any attempt to do so shall be void.\n10. Modification. This Agreement contains the entire Agreement of the parties concerning the subject matter hereof. This Agreement\nshall not be amended except by a writing signed by both FARO and Employee.\n11. Waiver. No delay or failure by Employer in exercising any of its rights, remedies, powers, or privileges hereunder, at law or in\nequity, and no course of dealing between Employer and Employee or any other person shall be deemed to be a waiver by Employer of\nany such rights, remedies, powers, or privileges, even if such delay or failure is continuo us or repeated, nor shall any single or partial\nexercise of any right, remedy, power, or privilege preclude any other or further exercise thereof by Employer or the exercise of any\nother right, remedy, power, or privilege by Employer.\n12. Effect of Prior Agreements. Except as otherwise provided in this Section, this Agreement, including the exhibits hereto, embodies\nthe entire agreement and understanding of Employer and Employee in respect of the matters set forth herein and supersedes all prior\nagreements, representations, warranties, promises, covenants, arrangements, communications and understandings, oral or written,\nexpress or implied, between the parties with respect to such transactions. If this Agreement is held to be void or unenforceable for\nany reason, then the terms and provisions of any prior version of this “Intellectual Property and Confidentiality Agreement”\n(including any Non-Competition and Non-Solicitation Addendum) signed by Employee shall remain in full force and effect.\n13. Construction. The parties intend that this Agreement provides FARO with the maximum protection allowed by law. Accordingly, if a\ncourt determines that any restrictions of this Agreement are unenforceable because they are overly broad or\nPage 4\nnot reasonably necessary to protect FARO’s legitimate business interests, the parties agree that the Court should interpret and enforce\nsuch restrictions in the manner necessary to provide FARO with the maximum protection allowed by law. The covenants set forth in\nthis Agreement shall be considered and construed as separate and independent covenants. The existence of any claim or cause of\naction against of the Employee against Employer shall not constitute a defense to enforcement by Employer of any of the terms and\nconditions of this Agreement. Should any part or provision of any covenant be held invalid, void or unenforceable in any court of\ncompetent jurisdiction, such invalidity, voidness or unenforceability shall not render invalid, void or unenforceable any other part or\nprovision of this Agreement.\n14. Miscellaneous. When used herein, one gender means any gender. The term “I”, “me” or “mine” means the Employee. Any use of the\nsingular shall include plural and vice versa. Use of the word “shall” means such action is mandatory. The title of this Agreement and\nthe paragraph headings are used for the purpose of convenience only and shall not be used to interpret or explain any portion of the\ntext hereof.\n15. At-Will Employment. Notwithstanding anything to the contrary, Employee shall at all times be an employee-at-will. This\nAgreement is not intended to create a contract of employment between FARO and Employee. FARO maintains its policy of\nemployment-at-will.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year indicated below.\nEmployee Signature:\nPrint Name:\nDate:\nFARO Technologies, Inc.\nBy:\nPrint Name:\nTitle:\nDate:\nPage 5\nNON-COMPETITION AND NON-SOLICITATION ADDENDUM\nTO INTELLECTUAL PROPERTY AND CONFIDENTIALITY AGREEMENT\nEmployee hereby further covenants and agrees to the following:\nA. Acknowledgment.\nEmployee acknowledges and agrees that, solely as a result of Employee’s employment with FARO and over the course of Employee’s\nemployment with FARO, Employee will: (1) be provided with special, unique, and extraordinary training, education and experience related to the\nBusiness; (2) be exposed to and/or in a position to generate Confidential Information of FARO; and (3) as a Sales Employee (as defined below),\ngenerate customer goodwill on behalf of FARO. Employee further acknowledges and agrees that FARO makes use of its Confidential\nInformation throughout the world and invests significant time and money, including Employee’s salary, to provide Employee with such special,\nunique, and extraordinary training, education and experience related to the Business and to generate customer goodwill on behalf of FARO, all of\nwhich are legitimate business interests of FARO. Employee further acknowledges and agrees that the restrictions in this Addendum are\nreasonable and necessary to allow FARO to protect its legitimate business interests. In consideration of the foregoing and of the benefits\ngenerally provided to the Employee by Employer, and in connection with FARO’s protection of its legitimate business interests, Employee agrees\nto abide and be bound by the restrictions of this Addendum, which restrictions are intended by the parties to extend to any and all activities of the\nEmployee, whether as an independent contractor, partner or joint venturer, or as an officer, director, stockholder, agent, employee or salesman for\nany person, firm, partnership, corporation or other entity, or otherwise.\nB. Additional Definitions.\n“FARO Competitor” means (i) any business or enterprise that provides goods and/or services similar to or competitive with FARO (each such\nbusiness or enterprise, a “Competitor”), including, without limitation, those persons or entities identified on Schedule 1 as current competitors of\nFARO as of the date hereof or (ii) any of such Competitor’s subsidiaries, affiliates, agents or distributors, irrespective or whether the subsidiary,\naffiliate, agent or distributor itself provides goods and/or services similar to or competitive with FARO. As used in this definition, “affiliate”\nincludes any entity, business or enterprise that, directly or indirectly, controls a Competitor or is under common control through another person or\nentity with a Competitor. The terms “controls,” “controlled by,” and “under common control” mean, when used with respect to any specified\nlegal entity, the power to direct the management and policies of such entity, directly or indirectly, whether through the ownership of voting\nsecurities, by contract or otherwise.\n“Restricted Period” means the term of Employee’s employment with FARO and for a period of twenty-four months after the date Employee’s\nemployment with FARO is terminated for any reason.\n“Sales Employee” means any Employee that deals with Customers and Prospective Customers with the intention of producing sales and\nrepresents FARO with respect to such Customers and Prospective Customers within a designated geographic territory.\nC. Non-Competition.\nIn order to protect FARO’s Trade Secret and Confidential Information, third-party goodwill and other legitimate business interests,\nEmployee acknowledges and agrees that during the Restricted Period, Employee will not, without FARO’s express written permission, directly or\nindirectly, assist, be employed by, consult with, or provide services to any FARO Competitor. Employee understands and agrees that, during the\nRestricted Period, he is and will be subject to the restrictions set forth in this Paragraph C anywhere within the geographic boundaries of the\ncontinental United States; provided, however, that Sales Employees shall be subject to the restrictions set forth in this Paragraph C during the\nRestricted Period within the geographic territory that the Employee represented for the Employer within the twenty-four (24) months prior to the\ntermination of employment.\nPage 6\nD. Non-Solicitation.\nDuring the Restricted Period, Employee shall not, without the prior written permission of Employer, directly or indirectly, for himself or on\nbehalf of any other person or entity, (i) solicit, call upon, encourage or contact, or attempt to solicit, call upon, encourage or contact any\nCustomer or Prospective Customer of the Employer for purposes of providing products or services competitive with the Business or causing such\nperson or entity to terminate their business relationship with Employer or (ii) accept business from or provide goods or services to any Customer\nor Prospective Customer of the Employer.\nE. Non-Recruitment.\nDuring the Restricted Period, Employee shall not, directly or indirectly, without the prior written permission of Employer, solicit or induce,\nor attempt to solicit or induce, any employee of Employer to terminate his or her relationship with Employer and/or to enter into an employment\nor agency relationship with Employee or with any other person or entity with whom Employee is affiliated, provided that the restriction in this\nsection shall apply only to employees of Employer with whom Employee worked by virtue of and during his or her employment with Employer.\nF. Miscellaneous.\na. The period of time during which Employee is prohibited from engaging in certain business practices under this Addendum shall be\nextended by the length of time during which Employee is in breach of such covenants.\nb. It is understood by and between the parties hereto that the restrictive covenants set forth in this Addendum hereof are essential\nelements of the employment arrangement between Employee and Employer, and that but for such covenants, Employer would not have agreed to\nhire Employee. The existence of any claim or cause of action of the Employee against Employer shall not constitute a defense to the enforcement\nby Employer of such covenants. The restrictive covenants, and rights and protections provided by the restrictive covenants, are assignable by\nEmployer, but not by Employee.\nc. The covenants set forth in this Agreement shall be considered and construed as separate and independent covenants. Should any\npart or provision of any covenant be held invalid, void or unenforceable in any court of competent jurisdiction, such invalidity, voidness or\nunenforceability shall not render invalid, void or unenforceable any other part or provision of this Agreement. If any portion of the foregoing\nprovisions is found to be invalid or unenforceable by a court of competent jurisdiction because its duration, the territory, the definition of\nactivities or the definition of information covered is considered to be invalid or unreasonable in scope, the invalid or unreasonable term shall be\nredefined, or a new enforceable term provided, such that the intent of Employer and Employee in agreeing to the provisions of this Agreement\nwill not be impaired and the provision in question shall be enforceable to the fullest extent of the applicable laws.\nd. Employee shall, no later than the last day of his or her employment, deliver to Employer at its offices in Lake Mary, Florida a\nwritten, signed and notarized confirmation that Employee is aware of his or her obligations under this Non-Competition and Non-Solicitation\nAddendum and that Employee will comply with its terms.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year indicated below.\nEmployee Signature:\nPrint Name:\nDate:\nPage 7\nFARO Technologies, Inc.\nBy:\nPrint Name:\nTitle:\nDate:\nPage 8	EX-10.8 3 d62023dex108.htm FORM OF PATENT AND CONFIDENTIALITY AGREEMENT\nExhibit 10.8\nINTELLECTUAL PROPERTY AND CONFIDENTIALITY AGREEMENT\nThis INTELLECTUAL PROPERTY AND CONFIDENTIALITY AGREEMENT (the “Agreement”), effective as of ,\n201 , is made by and between FARO Technologies, Inc., a Florida Corporation, including its subsidiaries and affiliates (hereinafter collectively\n“FARO” or “Employer”), and (“Employee”).\n \nIn consideration of the Employee’s employment by FARO, the compensation paid and to be paid to Employee by FARO, and\nEmployer’s agreement to provide Employee access to Employer’s Confidential Information (as defined below) and Trade Secrets (as defined\nbelow and as defined under Florida law) and other good and valuable consideration, the receipt and sufficiency of which is hereby\nacknowledged, Employee hereby warrants and agrees to be legally bound as follows:\n1. Definitions\na. “Business” means (1) all aspects related to 3-D measurement, imaging or realization systems, including but not limited\nto the design, development, manufacture, marketing, sale, offer for sale and support of such 3-D measurement, imaging or realization\nsystems, and (2) any other technology, product, process, apparatus, service, research or development on which Employee worked or\nhad access to Confidential Information while employed by FARO.\nb. “Confidential Information” shall mean information, other than Trade Secrets, which relates to Employer, Employer’s\nactivities, Employer’s business or Employer’s suppliers or customers that is not generally known by persons not employed by\nEmployer, and which is or has been disclosed to Employee or of which Employee became aware as a consequence of or through his\nor her relationship to Employer. This includes but is not limited to FARO’s know-how; accounts; pricing and cost information;\nmarketing techniques and plans; computer programs and software; coding systems and processes; computer networking concepts and\nprocesses; source code; contract terms and prospective contract terms with existing and prospective customers, accounts and other\npersons or entities with whom FARO has or contemplates a business relationship; actual or potential customers and purchasers;\nconfidential information of any customer; products; product designs; design documentation; formulas; concepts; inventions; research;\nmethods; processes; operations; product uses; product quality analysis; and other information related to the Business that is not\ngenerally publicly known. “Confidential Information” shall not include information that has become generally available to the public\nby the act of one who has the right to disclose such information without violating any legal right or privilege of Employer.\nc. “Customer” means any individual or entity to whom Employer has sold products or services related to the Business, and\nwith whom Employee had contact, alone or in conjunction with others, on behalf of Employer during the twelve (12) months\nimmediately prior to the termination of his or her employment.\nd. “Prospective Customer” means any individual or entity who is not a Customer, to whom Employer has marketed or\npresented products or services related to the Business, and with whom Employee had contact, alone or in conjunction with others, on\nbehalf of Employer during the twelve (12) months immediately prior to the termination of his or her employment.\ne. “Trade Secrets” shall mean all information, without regard to form, including, but not limited to, technical or\nnontechnical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data,\nfinancial plans, product plans, distribution lists or a list of actual or potential customers, advertisers or suppliers which is not\ncommonly known by or available to the public and which information: (A) derives economic value, actual or potential, from not\nbeing generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value\nfrom its disclosure or use; and (B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Without\nlimiting the foregoing, Trade Secrets include any documents or information that constitute a “trade secret(s)” under the common law\nor statutory law of the State of Florida and generally includes all source codes and object codes for Employer software, all buyer and\nseller information and all lists of clients or suppliers to the extent that such information fits within the Florida Trade Secrets Act.\nNothing in this Agreement is intended, or shall be construed, to limit the definitions or protections of the Florida Trade Secrets Act or\nany other applicable law protecting trade secrets or other confidential information. Trade Secrets shall not include information that\nhas become generally available to the public by the act of one who has the right to disclose such information without violating any\nlegal right or privilege of Employer.\n2. Acknowledgement of FARO’s Right To Protection of Business Interests. Employee acknowledges and agrees that this Agreement,\nincluding but not limited to the covenants not to compete contained herein, are necessary to allow FARO to protect its legitimate\nbusiness interests, including but not limited to its Confidential Information and customer goodwill. Accordingly, Employee agrees\nthat this Agreement, including but not limited to the covenants not to compete contained herein, are reasonable and necessary to\nallow FARO to protect its legitimate business interests.\nPage 1\nConfidentiality Restriction.\na. Nature and Restriction. Employee covenants and agrees that: (i) during his or her employment with Employer he or\nshe will not use or disclose any Trade Secrets or Confidential Information of Employer other than as necessary in connection with the\nperformance of his or her duties for Employer, and (ii) for a period of five (5) years immediately following the termination of his or\nher employment with Employer, Employee shall not, directly or indirectly, intentionally, or negligently, in any fashion, form, or\nmanner, transmit, divulge, communicate, or disclose any Trade Secrets or Confidential Information of Employer to any person and\nshall not make use of any such Trade Secrets or Confidential Information, directly or indirectly, for himself or herself or others,\nwithout the prior written consent of Employer, except for a disclosure that is required by any law or order, in which case Employee\nshall provide Employer prior written notice of such requirement and an opportunity to contest such disclosure. However, to the extent\nthat such information is a “trade secret” as that term is defined under a state or federal law, this subparagraph is not intended to, and\ndoes not, limit Employer’s rights or remedies thereunder, and the time period for prohibition on disclosure or use of such information\nis until such information becomes generally known to the public through the act of one who has the right to disclose such information\nwithout violating any legal right or privilege of Employer. Notwithstanding anything herein to the contrary, nothing in this agreement\nshall (i) prohibit Employee from making reports of possible violations of federal law or regulation to any governmental agency or\nentity in accordance with the provisions of an d rules promulgated under Section 21F of the Securities Exchange Act of 1934 or\nSection 806 of the Sarbanes-Oxley Act of 2002, or of any other whistleblower protection provisions of state or federal law or\nregulation, or (ii) require notification or pr ior approval by Employer of any reporting described in clause (i).\nb. Prior Confidentiality Restrictions. Employee covenants and agrees that Employee will not disclose to FARO or\notherwise use in the course of employment with FARO any confidential or trade secret information that is subject to a ny agreements\nto which Employee is bound that arose prior to employment with FARO.\nc. Return of Information. Employee agrees that he or she shall return to Employer’s offices in Lake Mary, Florida, all\nTrade Secrets, Confidential Information, documents, and other property of Employer immediately upon the termination of his or her\nemployment with Employer or upon any earlier request by Employer.\nd. Effect of Disclosure. Employee acknowledges that any disclosure to any third party of Trade Secrets or Confidential\nInformation not expressly allowed by this Agreement is detrimental to the Employer. In the event that any Trade Secret or\nConfidential Information is disclosed by Employee in violation of this Agreement, Employee shall be immediately, directly, and\nprincipally liable, with no limitation, for any and all costs, claims and damages (including, but not limited to, special, indirect,\nincidental and consequential damages, and reasonable attorneys’ fees and costs of litigation) sustained by Employer as a result of\nsuch disclosure.\ne. Consideration For Disclosure of Trade Secrets and Confidential Information. Employee understands and agrees\nthat he or she has entered into this Agreement and, if applicable, the Non-Competition and Non-Solicitation Addendum referenced in\nthis Agreement, in consideration for and as a condition of Employer’s agreement to provide Employee access to Employer’s\nConfidential Information and Trade Secrets.\nAssignment of Work Product; Disclosure; Confidentiality.\na. If at any time or times during Employee’s employment with FARO, Employee shall (either alone or with others) make,\nconceive, create, discover or reduce to practice any invention, idea, product, process, formula, method, plans, modification,\ndiscovery, design, development, improvement, process, software program, work of authorship, documentation, formula, data,\ntechnique, know-how, trade secret or intellectual property right whatsoever or any interest therein (whether or not patentable or\nregistrable under copyright, trademark or similar statutes or subject to analogous protection) that ( i) relates to the Business of FARO,\n(ii) results from tasks assigned to the Employee by FARO or (iii) results from the use of premises or personal property (whether\ntangible or intangible) owned, leased or contracted for by FARO (herein called “Work Product”), such Work Product and the benefits\nthereof shall immediately become the sole and absolute property of FARO and its successors and assigns.\nb. Without further consideration, upon the earlier of the making, conception, creation, discovery or reduction to practice of\nsuch Work Product, whether solely or jointly with others, Employee gives, transfers and hereby assigns to Employer (or to any agent,\nnominee or assignee, as requested by Employer) Employee’s right, title and interest to all such Work Product and all intellectual\nproperty rights related thereto.\nc. Employee agrees to fully disclose exclusively to Employer all Work Product. All disclosures of Work Product are to be\nmade in writing and promptly after the earlier of the making, conception, creation, discovery or reduction topractice of such Work\nProduct. For the avoidance of doubt, Employer shall own all Work Product regardless of whether Employee actually discloses such\nWork Product to Employer.\nPage 2\nd. During the period of Employee’s employment with Employer and at all times after the termination thereof, Employee\nagrees to provide all reasonably necessary assistance to Employer (including but not limited to testifying in any proceedings or suit,\nand executing any and all applications, assignments, or other documents or instruments): (1) in connection with Employer seeking to\nprotect any Work Product, including but not limited to the preparation, filing and/or prosecution of any patent applications,\ntrademarks or trade names or copyrights in the United States and any foreign country (as well as any state or other subdivision\nthereof); and the assertion of any such patents, trademarks, trade names or copyrights against a third party; and/or (2) to vest\nEmployer (and its successors and assigns) with all right, title and interest in the Work Product. Should Employee fail or refuse to\nprovide such assistance and/or execute any such document, Employee hereby irrevocably appoints Employer as its attorney-in-fact to\nprepare and/or execute such documents in the name of Employee and on his/her behalf, and to institute and prosecute any\nproceedings as FARO may deem necessary or appropriate to secure, protect, or enforce the Work Product.\ne. Employee represents and warrants that there are no ideas, products, formulas, methods, plans, developments,\nimprovements or patentable inventions in any way related to the Business which Employee desires to exclude from the operation of\nthis Agreement, except those, if any, designated by a patent number, application serial number or brief description where no\napplication has been filed, on the list attached hereto as Exhibit A and signed by Employee and Employer.\nf. Employer allows certain of its employees to have access to the following on-line services: Microsoft Exchange, all\nFARO servers, and the Internet. Employee shall use such services in connection with the Business and in accordance with FARO\npolicies and procedures, as they may change from time to time, which limit use of such services for personal reasons or other\npurposes not related to the Business. Furthermore, Employee is advised that under certain circumstances transmission of data or\nmessages on the Internet or through Internet e-mail is not secure and that the transmission of Confidential Information on the Internet\nor through Internet e-mail must comply with Employer-established appropriate safeguards against the interception or misdelivery of\nsuch information including, but not limited to the establishment of firewalls, encryption methods, or other technology that will\nprevent the unintended interception of data transmission by third parties on the Internet or any other on-line service.\ng. The foregoing obligations of confidentiality shall cease to apply to such parts of the Confidential Information if the\ninformation becomes general public knowledge through no fault of Employee or if Employee has the prior written permission of\nFARO.\nh. Upon termination of employment for whatever reason, Employee represents, warrants, covenants and agrees to deliver\nto Employer at Employer’s offices in Lake Mary, Florida, all Confidential Information (including but not limited to all books,\nrecords, products, formulas, manuals, letters, notes, memoranda, notebooks, sketches, drawings, plans, equipment, computer files and\nspreadsheets, and all other documents or materials that comprise Confidential Information, and also all copies of any of the\nforegoing), which are in Employee’s or his agents’ or affiliates’ possession or control, and Employee specifically agrees that\nEmployee shall not retain any copies or reproductions of such Confidential Information.\nNon-Competition and Non-Solicitation. If a “Non-Competition and Non-Solicitation Agreement” is attached hereto, the Employee\nagrees to the terms thereof, and such Non-Competition and Non-Solicitation Agreement is hereby incorporated into and made part of\nthis Agreement.\nSuch Addendum is is not attached.\nRemedies: The failure of the Employee to comply with the terms of this Agreement shall be cause for immediate dismissal from\nemployment, and in addition Employer shall have the following remedies:\na. Indemnification. Employee hereby agrees to indemnify the Employer in respect of any and all claims, losses, costs,\nliabilities and expenses (including reasonable attorneys’ and legal assistants’ fees) directly or indirectly resulting from or arising out\nof any breach of this Agreement, including for appeals.\nb. Injunctive Relief. Employee admits and agrees that Employee’s breach of the Agreement, including the confidentiality\nrestrictions and, if applicable, the non-compete and non-solicitation restrictions would result in irreparable harm to Employer, and\nthat Employer’s remedy at law for such a breach will be inadequate. Accordingly, it is agreed that Employer shall be entitled, upon\napplication to a court of competent jurisdiction, to obtain injunctive relief to enforce the provisions of this Agreement, which\ninjunctive relief shall be in addition to any other rights or remedies available to Employer. In any action or\nPage 3\n10. 11. 12. 13. proceeding by Employer to obtain a temporary restraining order and/or preliminary injunction, Employee hereby agrees to waive the\nnecessity of the Employer’s posting an injunction bond in order to obtain the temporary restraining order and/or prelimin ary\ninjunction. Employee also agrees that he or she shall be responsible for all damages incurred by Employer due to any breach of the\nrestrictive covenants contained in this Agreement. If Employer’s action for a temporary restraining order and/or motion for\npreliminary injunction is granted in whole or in part and Employer is ultimately unsuccessful in obtaining a permanent injunction to\nenforce the covenant, Employee hereby waives any and all rights he or she may have against the Employer for any injuries or\ndamages, including consequential damages, sustained by Employee and arising directly or indirectly from the issuance of the\ntemporary restraining order and/or preliminary injunction.\nc. Other Remedies. In addition to injunctive relief, FARO shall be entitled to any other remedy available in law or equity\nby reason of Employee’s breach or threatened breach of the restrictions contained herein.\nd. Recovery of Attorneys’ Fees and Costs. If Employer engages the services of an attorney or any other third party or in\nany way initiates legal action to enforce its rights under this Agreement and Employer prevails in its legal action, Employee agrees to\npay to the Employer all costs and expenses incurred by Employer relating to the enforcement of this Agreement (including reasonable\nattorneys’ and legal assistants’ fees before, at, and after trial and in appellate, bankruptcy and probate proceedings).\nGoverning Law. This Agreement shall be governed by and construed according to the laws of the State of Florida, without regard to\nits conflicts of law principles.\nVenue and Forum Selection Clause; Consent to Jurisdiction. Any action at law, suit in equity, or other judicial proceeding arising\nout of or related to this Agreement shall be instituted and maintained in the Courts in and for Orange County, Florida. Each party\nwaives the right to change venue. Employee agrees to exclusively submit to personal jurisdiction in the federal and state courts in or\nfor Orange County, Florida and no other place. Employee agrees that any action at law, suit in equity, or other judicial proceeding to\nenforce this Agreement, as well as any action at law, suit in equity, or other judicial proceeding relating to or arising out of this\nAgreement, shall be filed only in: (a) the United States District Court for the Middle District of Florida, Orlando Division; or (b) the\nBusiness Court of the Ninth Judicial Circuit Court of Orange County, Florida. With respect to any such court action, Employee\nhereby (a) irrevocably submits to the personal jurisdiction of such courts; (b) consents to service of process; (c) consents to venue;\nand (d) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction,\nservice of process, or venue. Both parties hereto further agree that the Business Court of the Ninth Judicial Circuit Court of Orange\nCounty, Florida and the United States District Court for the Middle District of Florida, Orlando Division, are convenient forums for\nany dispute that may arise herefrom and that neither party shall raise as a defense that such courts are not convenient forums.\nAssignment of Rights. FARO has the right to assign or transfer this Agreement, including any of its rights hereunder to any assignee\nor successor of FARO, which assignee or successor is then expressly authorized to enforce the terms of this Agreement. This\nAgreement is personal to the Employee and not assignable or transferable by Employee and any attempt to do so shall be void.\nModification. This Agreement contains the entire Agreement of the parties concerning the subject matter hereof. This Agreement\nshall not be amended except by a writing signed by both FARO and Employee.\nWaiver. No delay or failure by Employer in exercising any of its rights, remedies, powers, or privileges hereunder, at law or in\nequity, and no course of dealing between Employer and Employee or any other person shall be deemed to be a waiver by Employer of\nany such rights, remedies, powers, or privileges, even if such delay or failure is continuo us or repeated, nor shall any single or partial\nexercise of any right, remedy, power, or privilege preclude any other or further exercise thereof by Employer or the exercise of any\nother right, remedy, power, or privilege by Employer.\nEffect of Prior Agreements. Except as otherwise provided in this Section, this Agreement, including the exhibits hereto, embodies\nthe entire agreement and understanding of Employer and Employee in respect of the matters set forth herein and supersedes all prior\nagreements, representations, warranties, promises, covenants, arrangements, communications and understandings, oral or written,\nexpress or implied, between the parties with respect to such transactions. If this Agreement is held to be void or unenforceable for\nany reason, then the terms and provisions of any prior version of this “Intellectual Property and Confidentiality Agreement”\n(including any Non-Competition and Non-Solicitation Addendum) signed by Employee shall remain in full force and effect.\nConstruction. The parties intend that this Agreement provides FARO with the maximum protection allowed by law. Accordingly, if a\ncourt determines that any restrictions of this Agreement are unenforceable because they are overly broad or\nPage 4\n14. 15. not reasonably necessary to protect FARO’s legitimate business interests, the parties agree that the Court should interpret and enforce\nsuch restrictions in the manner necessary to provide FARO with the maximum protection allowed by law. The covenants set forth in\nthis Agreement shall be considered and construed as separate and independent covenants. The existence of any claim or cause of\naction against of the Employee against Employer shall not constitute a defense to enforcement by Employer of any of the terms and\nconditions of this Agreement. Should any part or provision of any covenant be held invalid, void or unenforceable in any court of\ncompetent jurisdiction, such invalidity, voidness or unenforceability shall not render invalid, void or unenforceable any other part or\nprovision of this Agreement.\nMiscellaneous. When used herein, one gender means any gender. The term “I”, “me” or “mine” means the Employee. Any use of the\nsingular shall include plural and vice versa. Use of the word “shall” means such action is mandatory. The title of this Agreement and\nthe paragraph headings are used for the purpose of convenience only and shall not be used to interpret or explain any portion of the\ntext hereof.\nAt-Will Employment. Notwithstanding anything to the contrary, Employee shall at all times be an employee-at-will. This\nAgreement is not intended to create a contract of employment between FARO and Employee. FARO maintains its policy of\nemployment-at-will.\nIN WITNESS WHEREQOF, the parties hereto have executed this Agreement the day and year indicated below. Employee Signature: Print Name: Date:\nFARO Technologies, Inc. By:\nPrint Name: Title:\nDate:\nPage 5\nNON-COMPETITION AND NON-SOLICITATION ADDENDUM\nTO INTELLECTUAL PROPERTY AND CONFIDENTIALITY AGREEMENT\nEmployee hereby further covenants and agrees to the following:\nA. Acknowledgment.\nEmployee acknowledges and agrees that, solely as a result of Employee’s employment with FARO and over the course of Employee’s\nemployment with FARO, Employee will: (1) be provided with special, unique, and extraordinary training, education and experience related to the\nBusiness; (2) be exposed to and/or in a position to generate Confidential Information of FARO; and (3) as a Sales Employee (as defined below),\ngenerate customer goodwill on behalf of FARO. Employee further acknowledges and agrees that FARO makes use of its Confidential\nInformation throughout the world and invests significant time and money, including Employee’s salary, to provide Employee with such special,\nunique, and extraordinary training, education and experience related to the Business and to generate customer goodwill on behalf of FARO, all of\nwhich are legitimate business interests of FARO. Employee further acknowledges and agrees that the restrictions in this Addendum are\nreasonable and necessary to allow FARO to protect its legitimate business interests. In consideration of the foregoing and of the benefits\ngenerally provided to the Employee by Employer, and in connection with FARO’s protection of its legitimate business interests, Employee agrees\nto abide and be bound by the restrictions of this Addendum, which restrictions are intended by the parties to extend to any and all activities of the\nEmployee, whether as an independent contractor, partner or joint venturer, or as an officer, director, stockholder, agent, employee or salesman for\nany person, firm, partnership, corporation or other entity, or otherwise.\nB. Additional Definitions.\n“FARO Competitor” means (i) any business or enterprise that provides goods and/or services similar to or competitive with FARO (each such\nbusiness or enterprise, a “Competitor”), including, without limitation, those persons or entities identified on Schedule 1 as current competitors of\nFARQO as of the date hereof or (ii) any of such Competitor’s subsidiaries, affiliates, agents or distributors, irrespective or whether the subsidiary,\naffiliate, agent or distributor itself provides goods and/or services similar to or competitive with FARO. As used in this definition, “affiliate”\nincludes any entity, business or enterprise that, directly or indirectly, controls a Competitor or is under common control through another person or\nentity with a Competitor. The terms “controls,” “controlled by,” and “under common control” mean, when used with respect to any specified\nlegal entity, the power to direct the management and policies of such entity, directly or indirectly, whether through the ownership of voting\nsecurities, by contract or otherwise.\n“Restricted Period” means the term of Employee’s employment with FARO and for a period of twenty-four months after the date Employee’s\nemployment with FARO is terminated for any reason.\n“Sales Employee” means any Employee that deals with Customers and Prospective Customers with the intention of producing sales and\nrepresents FARO with respect to such Customers and Prospective Customers within a designated geographic territory.\nC. Non-Competition.\nIn order to protect FARO’s Trade Secret and Confidential Information, third-party goodwill and other legitimate business interests,\nEmployee acknowledges and agrees that during the Restricted Period, Employee will not, without FARO’s express written permission, directly or\nindirectly, assist, be employed by, consult with, or provide services to any FARO Competitor. Employee understands and agrees that, during the\nRestricted Period, he is and will be subject to the restrictions set forth in this Paragraph C anywhere within the geographic boundaries of the\ncontinental United States; provided, however, that Sales Employees shall be subject to the restrictions set forth in this Paragraph C during the\nRestricted Period within the geographic territory that the Employee represented for the Employer within the twenty-four (24) months prior to the\ntermination of employment.\nPage 6\nD. Non-Solicitation.\nDuring the Restricted Period, Employee shall not, without the prior written permission of Employer, directly or indirectly, for himself or on\nbehalf of any other person or entity, (i) solicit, call upon, encourage or contact, or attempt to solicit, call upon, encourage or contact any\nCustomer or Prospective Customer of the Employer for purposes of providing products or services competitive with the Business or causing such\nperson or entity to terminate their business relationship with Employer or (ii) accept business from or provide goods or services to any Customer\nor Prospective Customer of the Employer.\nE. Non-Recruitment.\nDuring the Restricted Period, Employee shall not, directly or indirectly, without the prior written permission of Employer, solicit or induce,\nor attempt to solicit or induce, any employee of Employer to terminate his or her relationship with Employer and/or to enter into an employment\nor agency relationship with Employee or with any other person or entity with whom Employee is affiliated, provided that the restriction in this\nsection shall apply only to employees of Employer with whom Employee worked by virtue of and during his or her employment with Employer.\nF. Miscellaneous.\na. The period of time during which Employee is prohibited from engaging in certain business practices under this Addendum shall be\nextended by the length of time during which Employee is in breach of such covenants.\nb. It is understood by and between the parties hereto that the restrictive covenants set forth in this Addendum hereof are essential\nelements of the employment arrangement between Employee and Employer, and that but for such covenants, Employer would not have agreed to\nhire Employee. The existence of any claim or cause of action of the Employee against Employer shall not constitute a defense to the enforcement\nby Employer of such covenants. The restrictive covenants, and rights and protections provided by the restrictive covenants, are assignable by\nEmployer, but not by Employee.\nc. The covenants set forth in this Agreement shall be considered and construed as separate and independent covenants. Should any\npart or provision of any covenant be held invalid, void or unenforceable in any court of competent jurisdiction, such invalidity, voidness or\nunenforceability shall not render invalid, void or unenforceable any other part or provision of this Agreement. If any portion of the foregoing\nprovisions is found to be invalid or unenforceable by a court of competent jurisdiction because its duration, the territory, the definition of\nactivities or the definition of information covered is considered to be invalid or unreasonable in scope, the invalid or unreasonable term shall be\nredefined, or a new enforceable term provided, such that the intent of Employer and Employee in agreeing to the provisions of this Agreement\nwill not be impaired and the provision in question shall be enforceable to the fullest extent of the applicable laws.\nd. Employee shall, no later than the last day of his or her employment, deliver to Employer at its offices in Lake Mary, Florida a\nwritten, signed and notarized confirmation that Employee is aware of his or her obligations under this Non-Competition and Non-Solicitation\nAddendum and that Employee will comply with its terms.\nIN WITNESS WHEREQOF, the parties hereto have executed this Agreement the day and year indicated below.\nEmployee Signature:\nPrint Name:\nDate:\nPage 7\nFARO Technologies, Inc.\nBy:\nPrint Name:\nTitle:\nDate:\nPage 8	EX-10.8 3 d62023dex108.htn FORM OF PATENT AND CONFIDENTIALITY AGREEMENT\nExhibit 10.8\nINTELLECTUAL PROPERTY AND CONFIDENTIALITY AGREEMENT\nThis INTELLECTUAL PROPERTY AND CONFIDENTIALITY AGREEMENT (the "Agreement"), effective as of\n201 is made by and between FARO Technologies, Inc., a Florida Corporation, including its subsidiaries and affiliates (hereinafter collectively\n"FARO" or "Employer"), and\n("Employee").\nIn consideration of the Employee's employment by FARO, the compensation paid and to be paid to Employee by FARO, and\nEmployer's agreement to provide Employee access to Employer's Confidential Information (as defined below) and Trade Secrets (as defined\nbelow and as defined under Florida law) and other good and valuable consideration, the receipt and sufficiency of which is hereby\nacknowledged, Employee hereby warrants and agrees to be legally bound as follows:\n1. Definitions\na. "Business" means (1) all aspects related to 3-D measurement, imaging or realization systems, including but not limited\nto the design, development, manufacture, marketing, sale, offer for sale and support of such 3-D measurement, imaging or realization\nsystems, and (2) any other technology, product, process, apparatus, service, research or development on which Employee worked\nor\nhad access to Confidential Information while employed by FARO.\nb. "Confidential Information" shall mean information, other than Trade Secrets, which relates to Employer, Employer's\nactivities, Employer's business or Employer's suppliers or customers that is not generally known by persons not employed by\nEmployer, and which is or has been disclosed to Employee or of which Employee became aware as a consequence of or through his\nor her relationship to Employer. This includes but is not limited to FARO'S know-how; accounts; pricing and cost information\nmarketing techniques and plans; computer programs and software; coding systems and processes; computer networking concepts and\nprocesses; source code; contract terms and prospective contract terms with existing and prospective customers, accounts and other\npersons or entities with whom FARO has or contemplates a business relationship; actual or potential customers and purchasers;\nconfidential information of any customer; products; product designs; design documentation; formulas; concepts; inventions; research;\nmethods; processes; operations; product uses; product quality analysis; and other information related to the Business that is not\ngenerally publicly known. "Confidentia Information" shall not include information that has become generally available to the public\nby the act of one who has the right to disclose such information without violating any legal right or privilege of Employer.\nC. "Customer" means any individual or entity to whom Employer has sold products or services related to the Business, and\nwith\nwhom Employee had contact, alone or in conjunction with others, on behalf of Employer during the twelve (12) months\nimmediately prior to the termination of his or her employment.\nd. "Prospective Customer" means any individual or entity who is not a Customer, to whom Employer has marketed or\npresented products or services related to the Business, and with whom Employee had contact, alone or in conjunction with others, on\nbehalf of Employer during the twelve (12) months immediately prior to the termination of his or her employment.\ne. "Trade Secrets" shall mean all information, without regard to form, including, but not limited to, technical\nor\nnontechnical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data,\nfinancial plans, product plans, distribution lists or a list of actual or potential customers, advertisers or suppliers which is not\ncommonly known by or available to the public and which information: (A) derives economic value, actual or potential, from not\nbeing generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value\nfrom its disclosure or use; and (B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Without\nlimiting the foregoing, Trade Secrets include any documents or information that constitute a "trade secret(s)" under the common law\nor statutory law of the State of Florida and generally includes all source codes and object codes for Employer software, all buyer and\nseller information and all lists of clients or suppliers to the extent that such information fits within the Florida Trade Secrets Act.\nNothing in this Agreement is intended, or shall be construed, to limit the definitions or protections of the Florida Trade Secrets Act or\nany other applicable law protecting trade secrets or other confidential information. Trade Secrets shall not include information that\nhas become generally available to the public by the act of one who has the right to disclose such information without violating any\nlegal right or privilege of Employer.\n2.\nAcknowledgement of FARO's Right To Protection of Business Interests. Employee acknowledges and agrees that this Agreement,\nincluding but not limited to the covenants not to compete contained herein, are necessary to allow FARO to protect its legitimate\nbusiness interests, including but not limited to its Confidential Information and customer goodwill. Accordingly, Employee agrees\nthat this Agreement, including but not limited to the covenants not to compete contained herein, are reasonable and necessary to\nallow FARO to protect its legitimate business interests.\nPage 1\n3.\nConfidentiality Restriction.\na. Nature and Restriction. Employee covenants and agrees that: (i) during his or her employment with Employer he or\nshe will not use or disclose any Trade Secrets or Confidential Information of Employer other than as necessary in connection with the\nperformance of his or her duties for Employer, and (ii) for a period of five (5) years immediately following the termination of his or\nher employment with Employer, Employee shall not, directly or indirectly, intentionally, or negligently, in any fashion, form, or\nmanner, transmit, divulge, communicate, or disclose any Trade Secrets or Confidential Information of Employer to any person and\nshall not make use of any such Trade Secrets or Confidential Information, directly or indirectly, for himself or herself or others,\nwithout the prior written consent of Employer, except for a disclosure that is required by any law or order, in which case Employee\nshall provide Employer prior written notice of such requirement and an opportunity to contest such disclosure. However, to the extent\nthat such information is a "trade secret" as that term is defined under a state or federal law, this subparagraph is not intended to, and\ndoes not, limit Employer's rights or remedies thereunder, and the time period for prohibition on disclosure or use of such information\nis until such information becomes generally known to the public through the act of one who has the right to disclose such information\nwithout violating any legal right or privilege of Employer. Notwithstanding anything herein to the contrary, nothing in this agreement\nshall (i) prohibit Employee from making reports of possible violations of federal law or regulation to any governmental agency or\nentity in accordance with the provisions of an d rules promulgated under Section 21F of the Securities Exchange Act of 1934 or\nSection 806 of the Sarbanes-Oxley Act of 2002, or of any other whistleblower protection provisions of state or federal law or\nregulation, or (ii) require notification or pr ior approval by Employer of any reporting described in clause (i).\nb. Prior Confidentiality Restrictions. Employee covenants and agrees that Employee will not disclose to FARO or\notherwise use in the course of employment with FARO any confidential or trade secret information that is subject to a ny agreements\nto which Employee is bound that arose prior to employment with FARO.\nC. Return of Information. Employee agrees that he or she shall return to Employer's offices in Lake Mary, Florida, all\nTrade Secrets, Confidentia Information, documents, and other property of Employer immediately upon the termination of his or her\nemployment with Employer or upon any earlier request by Employer.\nd. Effect of Disclosure. Employee acknowledges that any disclosure to any third party of Trade Secrets or Confidential\nInformation not expressly allowed by this Agreement is detrimental to the Employer. In the event that any Trade Secret or\nConfidential Information is disclosed by Employee in violation of this Agreement, Employee shall be immediately, directly, and\nprincipally liable, with no limitation, for any and all costs, claims and damages (including, but not limited to, special, indirect,\nincidental and consequential damages, and reasonable attorneys' fees and costs of litigation) sustained by Employer as a result of\nsuch disclosure.\ne. Consideration For Disclosure of Trade Secrets and Confidential Information. Employee understands and agrees\nthat he or she has entered into this Agreement and, if applicable, the Non-Competition and Non-Solicitation Addendum referenced in\nthis Agreement, in consideration for and as a condition of Employer's agreement to provide Employee access to Employer's\nConfidential Information and Trade Secrets.\n4.\nAssignment of Work Product; Disclosure; Confidentiality.\na. If at any time or times during Employee's employment with FARO, Employee shall (either alone or with others) make,\nconceive, create, discover or reduce to practice any invention, idea, product, process, formula, method, plans, modification,\ndiscovery, design, development, improvement, process, software program, work of authorship, documentation, formula, data,\ntechnique, know-how, trade secret or intellectual property right whatsoever or any interest therein (whether or not patentable or\nregistrable under copyright, trademark or similar statutes or subject to analogous protection) that i) relates to the Business of FARO,\n(ii) results from tasks assigned to the Employee by FARO or (iii) results from the use of premises or personal property (whether\ntangible or intangible) owned, leased or contracted for by FARO (herein called "Work Product"), such Work Product and the benefits\nthereof shall immediately become the sole and absolute property of FARO and its successors and assigns.\nb. Without further consideration, upon the earlier of the making, conception, creation, discovery or reduction to practice of\nsuch\nWork\nProduct,\nwhether\nsolely\nor\njointly\nwith\nothers,\nEmployee\ngives,\ntransfers\nand\nhereby\nassigns\nto\nEmployer\n(or\nto\nany\nagent,\nnominee or assignee, as requested by Employer) Employee's right, title and interest to all such Work Product and all intellectual\nproperty rights related thereto.\nC. Employee agrees to fully disclose exclusively to Employer all Work Product. All disclosures of Work Product are to be\nmade in writing and promptly after the earlier of the making, conception, creation, discovery or reduction topractice of such Work\nProduct. For the avoidance of doubt, Employer shall own all Work Product regardless of whether Employee actually discloses such\nWork Product to Employer.\nPage 2\nd. During the period of Employee's employment with Employer and at all times after the termination thereof, Employee\nagrees to provide all reasonably necessary assistance to Employer (including but not limited to testifying in any proceedings or suit,\nand executing any and all applications, assignments, or other documents or instruments): (1) in connection with Employer seeking to\nprotect any Work Product, including but not limited to the preparation, filing and/or prosecution of any patent applications,\ntrademarks or trade names or copyrights in the United States and any foreign country (as well as any state or other subdivision\nthereof); and the assertion of any such patents, trademarks, trade names or copyrights against a third party; and/or (2) to vest\nEmployer (and its successors and assigns) with all right, title and interest in the Work Product. Should Employee fail or refuse to\nprovide such assistance and/or execute any such document, Employee hereby irrevocably appoints Employer as its attorney-in-fact to\nprepare and/or execute such documents in the name of Employee and on his/her behalf, and to institute and prosecute any\nproceedings as FARO may deem necessary or appropriate to secure, protect, or enforce the Work Product.\ne. Employee represents and warrants that there are no ideas, products, formulas, methods, plans, developments,\nimprovements or patentable inventions in any way related to the Business which Employee desires to exclude from the operation of\nthis Agreement, except those, if any, designated by a patent number, application serial number or brief description where no\napplication has been filed, on the list attached hereto as Exhibit A and signed by Employee and Employer.\nf. Employer allows certain of its employees to have access to the following on-line services: Microsoft Exchange, all\nFARO servers, and the Internet. Employee shall use such services in connection with the Business and in accordance with FARO\npolicies and procedures, as they may change from time to time, which limit use of such services for personal reasons or other\npurposes not related to the Business. Furthermore, Employee is advised that under certain circumstances transmission of data or\nmessages on the Internet or through Internet e-mail is not secure and that the transmission of Confidential Information on the Internet\nor through Internet e-mail must comply with Employer-established appropriate safeguards against the interception or misdelivery of\nsuch information including, but not limited to the establishment of firewalls, encryption methods, or other technology that will\nprevent the unintended interception of data transmission by third parties on the Internet or any other on-line service.\ng. The foregoing obligations of confidentiality shall cease to apply to such parts of the Confidential Information if\nthe\ninformation becomes general public knowledge through no fault of Employee or if Employee has the prior written permission of\nFARO.\nh. Upon termination of employment for whatever reason, Employee represents, warrants, covenants and agrees to deliver\nto Employer at Employer's offices in Lake Mary, Florida, all Confidential Information (including but not limited to all books,\nrecords, products, formulas, manuals, letters, notes, memoranda, notebooks, sketches, drawings, plans, equipment, computer files and\nspreadsheets, and all other documents or materials that comprise Confidential Information, and also all copies of any of the\nforegoing), which are in Employee's or his agents' or affiliates' possession or control, and Employee specifically agrees that\nEmployee shall not retain any copies or reproductions of such Confidential Information.\n5.\nNon-Competition and Non-Solicitation. If a "Non-Competition and Non-Solicitation Agreement" is attached hereto, the Employee\nagrees to the terms thereof, and such Non-Competition and Non-Solicitation Agreement is hereby incorporated into and made part of\nthis Agreement.\nSuch Addendum is\nis not\nattached.\n6.\nRemedies: The failure of the Employee to comply with the terms of this Agreement shall be cause for immediate dismissal from\nemployment, and in addition Employer shall have the following remedies:\na. Indemnification. Employee hereby agrees to indemnify the Employer in respect of any and all claims, losses, costs,\nliabilities and expenses (including reasonable attorneys' and legal assistants' fees) directly or indirectly resulting from or arising out\nof any breach of this Agreement, including for appeals.\nb. Injunctive Relief. Employee admits and agrees that Employee's breach of the Agreement, including the confidentiality\nrestrictions and, if applicable, the non-compete and non-solicitation restrictions would result in irreparable harm to Employer, and\nthat Employer's remedy at law for such a breach will be inadequate. Accordingly, it is agreed that Employer shall be entitled, upon\napplication to a court of competent jurisdiction, to obtain injunctive relief to enforce the provisions of this Agreement, which\ninjunctive relief shall be in addition to any other rights or remedies available to Employer. In any action or\nPage 3\nproceeding by Employer to obtain a temporary restraining order and/or preliminary injunction, Employee hereby agrees to waive the\nnecessity of the Employer's posting an injunction bond in order to obtain the temporary restraining order and/or prelimin ary\ninjunction Employee also agrees that he or she shall be responsible for all damages incurred by Employer due to any breach of the\nrestrictive covenants contained in this Agreement. If Employer's action for a temporary restraining order and/or motion for\npreliminary injunction is granted in whole or in part and Employer is ultimately unsuccessful in obtaining a permanent injunction to\nenforce the covenant, Employee hereby waives any and all rights he or she may have against the Employer for any injuries or\ndamages, including consequential damages, sustained by Employee and arising directly or indirectly from the issuance of the\ntemporary restraining order and/or preliminary injunction.\nC. Other Remedies. In addition to injunctive relief, FARO shall be entitled to any other remedy available in law or equity\nby reason of Employee's breach or threatened breach of the restrictions contained herein.\nd. Recovery of Attorneys' Fees and Costs. If Employer engages the services of an attorney or any other third party or\nin\nany\nway initiates legal action to enforce its rights under this Agreement and Employer prevails in its legal action, Employee agrees to\npay to the Employer all costs and expenses incurred by Employer relating to the enforcement of this Agreement (including reasonable\nattorneys' and legal assistants' fees before, at, and after trial and in appellate, bankruptcy and probate proceedings).\n7.\nGoverning Law. This Agreement shall be governed by and construed according to the laws of the State of Florida, without regard to\nits conflicts of law principles.\n8.\nVenue and Forum Selection Clause; Consent to Jurisdiction. Any action at law, suit in equity, or other judicial proceeding arising\nout of or related to this Agreement shall be instituted and maintained in the Courts in and for Orange County, Florida. Each party\nwaives the right to change venue. Employee agrees to exclusively submit to personal jurisdiction in the federal and state courts in or\nfor Orange County, Florida and no other place. Employee agrees that any action at law, suit in equity, or other judicial proceeding to\nenforce this Agreement, as well as any action at law, suit in equity, or other judicial proceeding relating to or arising out of this\nAgreement, shall be filed only in: (a) the United States District Court for the Middle District of Florida, Orlando Division; or (b)\nthe\nBusiness Court of the Ninth Judicial Circuit Court of Orange County, Florida. With respect to any such court action, Employee\nhereby (a) irrevocably submits to the personal jurisdiction of such courts; (b) consents to service of process; (c) consents to venue;\nand (d) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction,\nservice of process, or venue. Both parties hereto further agree that the Business Court of the Ninth Judicial Circuit Court of Orange\nCounty, Florida and the United States District Court for the Middle District of Florida, Orlando Division, are convenient forums for\nany dispute that may arise herefrom and that neither party shall raise as a defense that such courts are not convenient forums.\n9.\nAssignment of Rights. FARO has the right to assign or transfer this Agreement, including any of its rights hereunder to any assignee\nor successor of FARO, which assignee or successor is then expressly authorized to enforce the terms of this Agreement. This\nAgreement is personal to the Employee and not assignable or transferable by Employee and any attempt to do so shall be void.\n10.\nModification. This Agreement contains the entire Agreement of the parties concerning the subject matter hereof. This Agreement\nshall not be amended except by a writing signed by both FARO and Employee.\n11. Waiver. No delay or failure by Employer in exercising any of its rights, remedies, powers, or privileges hereunder, at law or in\nequity, and no course of dealing between Employer and Employee or any other person shall be deemed to be a waiver by Employer of\nany such rights, remedies, powers, or privileges, even if such delay or failure is continuo us or repeated, nor shall any single or partial\nexercise of any right, remedy, power, or privilege preclude any other or further exercise thereof by Employer or the exercise of any\nother right, remedy, power, or privilege by Employer.\n12.\nEffect of Prior Agreements. Except as otherwise provided in this Section, this Agreement, including the exhibits hereto, embodies\nthe entire agreement and understanding of Employer and Employee in respect of the matters set forth herein and supersedes all prior\nagreements, representations, warranties, promises, covenants, arrangements, communications and understandings, oral or written,\nexpress or implied, between the parties with respect to such transactions. If this Agreement is held to be void or unenforceable\nfor\nany reason, then the terms and provisions of any prior version of this "Intellectual Property and Confidentiality Agreement"\n(including any Non-Competition and Non-Solicitation Addendum) signed by Employee shall remain in full force and effect.\n13.\nConstruction. The parties intend that this Agreement provides FARO with the maximum protection allowed by law. Accordingly, if\na\ncourt determines that any restrictions of this Agreement are unenforceable because they are overly broad or\nPage 4\nnot reasonably necessary to protect FARO'S legitimate business interests, the parties agree that the Court should interpret and enforce\nsuch restrictions in the manner necessary to provide FARO with the maximum protection allowed by law. The covenants set forth in\nthis Agreement shall be considered and construed as separate and independent covenants. The existence of any claim or cause of\naction against of the Employee against Employer shall not constitute a defense to enforcement by Employer of any of the terms and\nconditions of this Agreement. Should any part or provision of any covenant be held invalid, void or unenforceable in any court of\ncompetent jurisdiction, such invalidity, voidness or unenforceability shall not render invalid, void or unenforceable any other part or\nprovision of this Agreement.\n14. Miscellaneous. When used herein, one gender means any gender The term "I", "me" or "mine" means the Employee. Any use of\nthe\nsingular shall include plural and vice versa. Use of the word "'shall" means such action is mandatory. The title of this Agreement and\nthe paragraph headings are used for the purpose of convenience only and shall not be used to interpret or explain any portion of the\ntext hereof.\n15. At-Will Employment. Notwithstanding anything to the contrary, Employee shall at all times be an employee-at-will This\nAgreement is not intended to create a contract of employment between FARO and Employee. FARO maintains its policy of\nemployment-at-will.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year indicated below.\nEmployee Signature:\nPrint Name:\nDate:\nFARO Technologies, Inc.\nBy:\nPrint Name:\nTitle:\nDate:\nPage 5\nNON-COMPETITION AND NON-SOLICITATION ADDENDUM\nTO INTELLECTUAL PROPERTY AND CONFIDENTIALITY AGREEMENT\nEmployee hereby further covenants and agrees to the following:\nA. Acknowledgment.\nEmployee acknowledges and agrees that, solely as a result of Employee's employment with FARO and over the course of Employee's\nemployment with FARO, Employee will: (1) be provided with special, unique, and extraordinary training, education and experience related to the\nBusiness; (2) be exposed to and/or in a position to generate Confidential Information of FARO; and (3) as a Sales Employee (as defined below),\ngenerate customer goodwill on behalf of FARO. Employee further acknowledges and agrees that FARO makes use of its Confidential\nInformation throughout the world and invests significant time and money, including Employee's salary, to provide Employee with such special,\nunique, and extraordinary training, education and experience related to the Business and to generate customer goodwill on behalf of FARO, all of\nwhich are legitimate business interests of FARO. Employee further acknowledges and agrees that the restrictions in this Addendum are\nreasonable and necessary to allow FARO to protect its legitimate business interests. In consideration of the foregoing and of the benefits\ngenerally provided to the Employee by Employer, and in connection with FARO's protection of its legitimate business interests, Employee agrees\nto\nabide and be bound by the restrictions of this Addendum, which restrictions are intended by the parties to extend to any and all activities of the\nEmployee, whether as an independent contractor, partner or joint venturer, or as an officer, director, stockholder, agent, employee or salesman for\nany person, firm, partnership, corporation or other entity, or otherwise.\nB. Additional Definitions.\n"FARO Competitor" means (i) any business or enterprise that provides goods and/or services similar to or competitive with FARO (each such\nbusiness or enterprise, a "Competitor"), including, without limitation, those persons or entities identified on Schedule 1 as current competitors of\nFARO as of the date hereof or (ii) any of such Competitor's subsidiaries, affiliates, agents or distributors, irrespective or whether the subsidiary,\naffiliate, agent or distributor itself provides goods and/or services similar to or competitive with FARO. As used in this definition, "affiliate"\nincludes any entity, business or enterprise that, directly or indirectly, controls a Competitor or is under common control through another person or\nentity with a Competitor. The terms "controls," "controlled by," and "under common control" mean, when used with respect to any specified\nlegal entity, the power to direct the management and policies of such entity, directly or indirectly, whether through the ownership of voting\nsecurities, by contract or otherwise.\n"Restricted Period" means the term of Employee's employment with FARO and for a period of twenty-four months after the date Employee's\nemployment with FARO is terminated for any reason.\n"Sales Employee" means any Employee that deals with Customers and Prospective Customers with the intention of producing sales and\nrepresents FARO with respect to such Customers and Prospective Customers within a designated geographic territory.\nC. Non-Competition.\nIn order to protect FARO's Trade Secret and Confidential Information, third-party goodwill and other legitimate business interests,\nEmployee acknowledges and agrees that during the Restricted Period, Employee will not, without FARO's express written permission, directly or\nindirectly, assist, be employed by, consult with, or provide services to any FARO Competitor. Employee understands and agrees that, during the\nRestricted Period, he is and will be subject to the restrictions set forth in this Paragraph C anywhere within the geographic boundaries of the\ncontinental United States; provided, however, that Sales Employees shall be subject to the restrictions set forth in this Paragraph C during the\nRestricted Period within the geographic territory that the Employee represented for the Employer within the twenty-four (24) months prior to the\ntermination of employment.\nPage 6\nD. Non-Solicitation.\nDuring the Restricted Period, Employee shall not, without the prior written permission of Employer, directly or indirectly, for himself or on\nbehalf of any other person or entity, (i) solicit, call upon, encourage or contact, or attempt to solicit, call upon, encourage or contact any\nCustomer or Prospective Customer of the Employer for purposes of providing products or services competitive with the Business or causing such\nperson or entity to terminate their business relationship with Employer or (ii) accept business from or provide goods or services to any Customer\nor Prospective Customer of the Employer.\nE. Non-Recruitment.\nDuring the Restricted Period, Employee shall not, directly or indirectly, without the prior written permission of Employer, solicit or induce,\nor\nattempt to solicit or induce, any employee of Employer to terminate his or her relationship with Employer and/or to enter\ninto\nan\nemployment\nor agency relationship with Employee or with any other person or entity with whom Employee is affiliated, provided that the restriction in this\nsection shall apply only to employees of Employer with whom Employee worked by virtue of and during his or her employment with Employer.\nF. Miscellaneous.\na. The period of time during which Employee is prohibited from engaging in certain business practices under this Addendum shall be\nextended by the length of time during which Employee is in breach of such covenants.\nb. It is understood by and between the parties hereto that the restrictive covenants set forth in this Addendum hereof are essential\nelements of the employment arrangement between Employee and Employer, and that but for such covenants, Employer would not have agreed to\nhire Employee. The existence of any claim or cause of action of the Employee against Employer shall not constitute a defense to the enforcement\nby Employer of such covenants. The restrictive covenants, and rights and protections provided by the restrictive covenants, are assignable by\nEmployer, but not by Employee.\nC. The covenants set forth in this Agreement shall be considered and construed as separate and independent covenants. Should any\npart or provision of any covenant be held invalid, void or unenforceable in any court of competent jurisdiction, such invalidity, voidness or\nunenforceability shall not render invalid, void or unenforceable any other part or provision of this Agreement. If any portion of the foregoing\nprovisions is found to be invalid or unenforceable by a court of competent jurisdiction because its duration, the territory, the definition of\nactivities or the definition of information covered is considered to be invalid or unreasonable in scope, the invalid or unreasonable term shall be\nredefined, or a new enforceable term provided, such that the intent of Employer and Employee in agreeing to the provisions of this Agreement\nwill not be impaired and the provision in question shall be enforceable to the fullest extent of the applicable laws.\nd. Employee shall, no later than the last day of his or her employment, deliver to Employer at its offices in Lake Mary, Florida a\nwritten, signed and notarized confirmation that Employee is aware of his or her obligations under this Non-Competition and Non-Solicitation\nAddendum and that Employee will comply with its terms.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year indicated below.\nEmployee Signature:\nPrint Name:\nDate:\nPage 7\nFARO Technologies, Inc.\nBy:\nPrint Name:\nTitle:\nDate:\nPage 8	EX-10.8 3 d62023dex108.htm FORM OF PATENT AND CONFIDENTIALITY AGREEMENT\nExhibit 10.8\nINTELLECTUAL PROPERTY AND CONFIDENTIALITY AGREEMENT\nThis INTELLECTUAL PROPERTY AND CONFIDENTIALITY AGREEMENT (the “Agreement”), effective as of\n,\n201 , is made by and between FARO Technologies, Inc., a Florida Corporation, including its subsidiaries and affiliates (hereinafter collectively\n“FARO” or “Employer”), and\n(“Employee”).\nIn consideration of the Employee’s employment by FARO, the compensation paid and to be paid to Employee by FARO, and\nEmployer’s agreement to provide Employee access to Employer ’s Confidential Information (as defined below) and Trade Secrets (as defined\nbelow and as defined under Florida law) and other good and valuable consideration, the receipt and sufficiency of which is hereby\nacknowledged, Employee hereby warrants and agrees to be legally bound as follows:\n1. Definitions\na. “Business” means (1) all aspects related to 3-D measurement, imaging or realization systems, including but not limited\nto the design, development, manufacture, marketing, sale, offer for sale and support of such 3-D measurement, imaging or realization\nsystems, and (2) any other technology, product, process, apparatus, service, research or development on which Employee worked or\nhad access to Confidential Information while employed by FARO.\nb. “Confidential Information” shall mean information, other than Trade Secrets, which relates to Employer, Employer ’s\nactivities, Employer’s business or Employer ’s suppliers or customers that is not generally known by persons not employed by\nEmployer, and which is or has been disclosed to Employee or of which Employee became aware as a consequence of or through his\nor her relationship to Employer. This includes but is not limited to FARO’s know-how; accounts; pricing and cost information;\nmarketing techniques and plans; computer programs and software; coding systems and processes; computer networking concepts and\nprocesses; source code; contract terms and prospective contract terms with existing and prospective customers, accounts and other\npersons or entities with whom FARO has or contemplates a business relationship; actual or potential customers and purchasers;\nconfidential information of any customer; products; product designs; design documentation; formulas; concepts; inventions; research;\nmethods; processes; operations; product uses; product quality analysis; and other information related to the Business that is not\ngenerally publicly known. “Confidential Information” shall not include information that has become generally available to the public\nby the act of one who has the right to disclose such information without violating any legal right or privilege of Employer.\nc. “Customer” means any individual or entity to whom Employer has sold products or services related to the Business, and\nwith whom Employee had contact, alone or in conjunction with others, on behalf of Employer during the twelve (12) months\nimmediately prior to the termination of his or her employment.\nd. “Prospective Customer” means any individual or entity who is not a Customer, to whom Employer has marketed or\npresented products or services related to the Business, and with whom Employee had contact, alone or in conjunction with others, on\nbehalf of Employer during the twelve (12) months immediately prior to the termination of his or her employment.\ne. “Trade Secrets” shall mean all information, without regard to form, including, but not limited to, technical or\nnontechnical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data,\nfinancial plans, product plans, distribution lists or a list of actual or potential customers, advertisers or suppliers which is not\ncommonly known by or available to the public and which information: (A) derives economic value, actual or potential, from not\nbeing generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value\nfrom its disclosure or use; and (B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Without\nlimiting the foregoing, Trade Secrets include any documents or information that constitute a “trade secret(s)” under the common law\nor statutory law of the State of Florida and generally includes all source codes and object codes for Employer software, all buyer and\nseller information and all lists of clients or suppliers to the extent that such information fits within the Florida Trade Secrets Act.\nNothing in this Agreement is intended, or shall be construed, to limit the definitions or protections of the Florida Trade Secrets Act or\nany other applicable law protecting trade secrets or other confidential information. Trade Secrets shall not include information that\nhas become generally available to the public by the act of one who has the right to disclose such information without violating any\nlegal right or privilege of Employer.\n2. Acknowledgement of FARO’s Right To Protection of Business Interests. Employee acknowledges and agrees that this Agreement,\nincluding but not limited to the covenants not to compete contained herein, are necessary to allow FARO to protect its legitimate\nbusiness interests, including but not limited to its Confidential Information and customer goodwill. Accordingly, Employee agrees\nthat this Agreement, including but not limited to the covenants not to compete contained herein, are reasonable and necessary to\nallow FARO to protect its legitimate business interests.\nPage 1\n3. Confidentiality Restriction.\na. Nature and Restriction. Employee covenants and agrees that: (i) during his or her employment with Employer he or\nshe will not use or disclose any Trade Secrets or Confidential Information of Employer other than as necessary in connection with the\nperformance of his or her duties for Employer, and (ii) for a period of five (5) years immediately following the termination of his or\nher employment with Employer, Employee shall not, directly or indirectly, intentionally, or negligently, in any fashion, form, or\nmanner, transmit, divulge, communicate, or disclose any Trade Secrets or Confidential Information of Employer to any person and\nshall not make use of any such Trade Secrets or Confidential Information, directly or indirectly, for himself or herself or others,\nwithout the prior written consent of Employer, except for a disclosure that is required by any law or order, in which case Employee\nshall provide Employer prior written notice of such requirement and an opportunity to contest such disclosure. However, to the extent\nthat such information is a “trade secret” as that term is defined under a state or federal law, this subparagraph is not intended to, and\ndoes not, limit Employer ’s rights or remedies thereunder, and the time period for prohibition on disclosure or use of such information\nis until such information becomes generally known to the public through the act of one who has the right to disclose such information\nwithout violating any legal right or privilege of Employer. Notwithstanding anything herein to the contrary, nothing in this agreement\nshall (i) prohibit Employee from making reports of possible violations of federal law or regulation to any governmental agency or\nentity in accordance with the provisions of an d rules promulgated under Section 21F of the Securities Exchange Act of 1934 or\nSection 806 of the Sarbanes-Oxley Act of 2002, or of any other whistleblower protection provisions of state or federal law or\nregulation, or (ii) require notification or pr ior approval by Employer of any reporting described in clause (i).\nb. Prior Confidentiality Restrictions. Employee covenants and agrees that Employee will not disclose to FARO or\notherwise use in the course of employment with FARO any confidential or trade secret information that is subject to a ny agreements\nto which Employee is bound that arose prior to employment with FARO.\nc. Return of Information. Employee agrees that he or she shall return to Employer ’s offices in Lake Mary, Florida, all\nTrade Secrets, Confidential Information, documents, and other property of Employer immediately upon the termination of his or her\nemployment with Employer or upon any earlier request by Employer.\nd. Effect of Disclosure. Employee acknowledges that any disclosure to any third party of Trade Secrets or Confidential\nInformation not expressly allowed by this Agreement is detrimental to the Employer. In the event that any Trade Secret or\nConfidential Information is disclosed by Employee in violation of this Agreement, Employee shall be immediately, directly, and\nprincipally liable, with no limitation, for any and all costs, claims and damages (including, but not limited to, special, indirect,\nincidental and consequential damages, and reasonable attorneys’ fees and costs of litigation) sustained by Employer as a result of\nsuch disclosure.\ne. Consideration For Disclosure of Trade Secrets and Confidential Information. Employee understands and agrees\nthat he or she has entered into this Agreement and, if applicable, the Non-Competition and Non-Solicitation Addendum referenced in\nthis Agreement, in consideration for and as a condition of Employer ’s agreement to provide Employee access to Employer’s\nConfidential Information and Trade Secrets.\n4. Assignment of Work Product; Disclosure; Confidentiality.\na. If at any time or times during Employee’s employment with FARO, Employee shall (either alone or with others) make,\nconceive, create, discover or reduce to practice any invention, idea, product, process, formula, method, plans, modification,\ndiscovery, design, development, improvement, process, software program, work of authorship, documentation, formula, data,\ntechnique, know-how, trade secret or intellectual property right whatsoever or any interest therein (whether or not patentable or\nregistrable under copyright, trademark or similar statutes or subject to analogous protection) that ( i) relates to the Business of FARO,\n(ii) results from tasks assigned to the Employee by FARO or (iii) results from the use of premises or personal property (whether\ntangible or intangible) owned, leased or contracted for by FARO (herein called “Work Product”), such Work Product and the benefits\nthereof shall immediately become the sole and absolute property of FARO and its successors and assigns.\nb. Without further consideration, upon the earlier of the making, conception, creation, discovery or reduction to practice of\nsuch Work Product, whether solely or jointly with others, Employee gives, transfers and hereby assigns to Employer (or to any agent,\nnominee or assignee, as requested by Employer) Employee’s right, title and interest to all such Work Product and all intellectual\nproperty rights related thereto.\nc. Employee agrees to fully disclose exclusively to Employer all Work Product. All disclosures of Work Product are to be\nmade in writing and promptly after the earlier of the making, conception, creation, discovery or reduction topractice of such Work\nProduct. For the avoidance of doubt, Employer shall own all Work Product regardless of whether Employee actually discloses such\nWork Product to Employer.\nPage 2\nd. During the period of Employee’s employment with Employer and at all times after the termination thereof, Employee\nagrees to provide all reasonably necessary assistance to Employer (including but not limited to testifying in any proceedings or suit,\nand executing any and all applications, assignments, or other documents or instruments): (1) in connection with Employer seeking to\nprotect any Work Product, including but not limited to the preparation, filing and/or prosecution of any patent applications,\ntrademarks or trade names or copyrights in the United States and any foreign country (as well as any state or other subdivision\nthereof); and the assertion of any such patents, trademarks, trade names or copyrights against a third party; and/or (2) to vest\nEmployer (and its successors and assigns) with all right, title and interest in the Work Product. Should Employee fail or refuse to\nprovide such assistance and/or execute any such document, Employee hereby irrevocably appoints Employer as its attorney-in-fact to\nprepare and/or execute such documents in the name of Employee and on his/her behalf, and to institute and prosecute any\nproceedings as FARO may deem necessary or appropriate to secure, protect, or enforce the Work Product.\ne. Employee represents and warrants that there are no ideas, products, formulas, methods, plans, developments,\nimprovements or patentable inventions in any way related to the Business which Employee desires to exclude from the operation of\nthis Agreement, except those, if any, designated by a patent number, application serial number or brief description where no\napplication has been filed, on the list attached hereto as Exhibit A and signed by Employee and Employer.\nf. Employer allows certain of its employees to have access to the following on-line services: Microsoft Exchange, all\nFARO servers, and the Internet. Employee shall use such services in connection with the Business and in accordance with FARO\npolicies and procedures, as they may change from time to time, which limit use of such services for personal reasons or other\npurposes not related to the Business. Furthermore, Employee is advised that under certain circumstances transmission of data or\nmessages on the Internet or through Internet e-mail is not secure and that the transmission of Confidential Information on the Internet\nor through Internet e-mail must comply with Employer-established appropriate safeguards against the interception or misdelivery of\nsuch information including, but not limited to the establishment of firewalls, encryption methods, or other technology that will\nprevent the unintended interception of data transmission by third parties on the Internet or any other on-line service.\ng. The foregoing obligations of confidentiality shall cease to apply to such parts of the Confidential Information if the\ninformation becomes general public knowledge through no fault of Employee or if Employee has the prior written permission of\nFARO.\nh. Upon termination of employment for whatever reason, Employee represents, warrants, covenants and agrees to deliver\nto Employer at Employer ’s offices in Lake Mary, Florida, all Confidential Information (including but not limited to all books,\nrecords, products, formulas, manuals, letters, notes, memoranda, notebooks, sketches, drawings, plans, equipment, computer files and\nspreadsheets, and all other documents or materials that comprise Confidential Information, and also all copies of any of the\nforegoing), which are in Employee’s or his agents’ or affiliates’ possession or control, and Employee specifically agrees that\nEmployee shall not retain any copies or reproductions of such Confidential Information.\n5. Non-Competition and Non-Solicitation. If a “Non-Competition and Non-Solicitation Agreement” is attached hereto, the Employee\nagrees to the terms thereof, and such Non-Competition and Non-Solicitation Agreement is hereby incorporated into and made part of\nthis Agreement.\nSuch Addendum is\nis not\nattached.\n6. Remedies: The failure of the Employee to comply with the terms of this Agreement shall be cause for immediate dismissal from\nemployment, and in addition Employer shall have the following remedies:\na. Indemnification. Employee hereby agrees to indemnify the Employer in respect of any and all claims, losses, costs,\nliabilities and expenses (including reasonable attorneys’ and legal assistants’ fees) directly or indirectly resulting from or arising out\nof any breach of this Agreement, including for appeals.\nb. Injunctive Relief. Employee admits and agrees that Employee’s breach of the Agreement, including the confidentiality\nrestrictions and, if applicable, the non-compete and non-solicitation restrictions would result in irreparable harm to Employer, and\nthat Employer ’s remedy at law for such a breach will be inadequate. Accordingly, it is agreed that Employer shall be entitled, upon\napplication to a court of competent jurisdiction, to obtain injunctive relief to enforce the provisions of this Agreement, which\ninjunctive relief shall be in addition to any other rights or remedies available to Employer. In any action or\nPage 3\nproceeding by Employer to obtain a temporary restraining order and/or preliminary injunction, Employee hereby agrees to waive the\nnecessity of the Employer’s posting an injunction bond in order to obtain the temporary restraining order and/or prelimin ary\ninjunction. Employee also agrees that he or she shall be responsible for all damages incurred by Employer due to any breach of the\nrestrictive covenants contained in this Agreement. If Employer ’s action for a temporary restraining order and/or motion for\npreliminary injunction is granted in whole or in part and Employer is ultimately unsuccessful in obtaining a permanent injunction to\nenforce the covenant, Employee hereby waives any and all rights he or she may have against the Employer for any injuries or\ndamages, including consequential damages, sustained by Employee and arising directly or indirectly from the issuance of the\ntemporary restraining order and/or preliminary injunction.\nc. Other Remedies. In addition to injunctive relief, FARO shall be entitled to any other remedy available in law or equity\nby reason of Employee’s breach or threatened breach of the restrictions contained herein.\nd. Recovery of Attorneys’ Fees and Costs. If Employer engages the services of an attorney or any other third party or in\nany way initiates legal action to enforce its rights under this Agreement and Employer prevails in its legal action, Employee agrees to\npay to the Employer all costs and expenses incurred by Employer relating to the enforcement of this Agreement (including reasonable\nattorneys’ and legal assistants’ fees before, at, and after trial and in appellate, bankruptcy and probate proceedings).\n7. Governing Law. This Agreement shall be governed by and construed according to the laws of the State of Florida, without regard to\nits conflicts of law principles.\n8. Venue and Forum Selection Clause; Consent to Jurisdiction. Any action at law, suit in equity, or other judicial proceeding arising\nout of or related to this Agreement shall be instituted and maintained in the Courts in and for Orange County, Florida. Each party\nwaives the right to change venue. Employee agrees to exclusively submit to personal jurisdiction in the federal and state courts in or\nfor Orange County, Florida and no other place. Employee agrees that any action at law, suit in equity, or other judicial proceeding to\nenforce this Agreement, as well as any action at law, suit in equity, or other judicial proceeding relating to or arising out of this\nAgreement, shall be filed only in: (a) the United States District Court for the Middle District of Florida, Orlando Division; or (b) the\nBusiness Court of the Ninth Judicial Circuit Court of Orange County, Florida. With respect to any such court action, Employee\nhereby (a) irrevocably submits to the personal jurisdiction of such courts; (b) consents to service of process; (c) consents to venue;\nand (d) waives any other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction,\nservice of process, or venue. Both parties hereto further agree that the Business Court of the Ninth Judicial Circuit Court of Orange\nCounty, Florida and the United States District Court for the Middle District of Florida, Orlando Division, are convenient forums for\nany dispute that may arise herefrom and that neither party shall raise as a defense that such courts are not convenient forums.\n9. Assignment of Rights. FARO has the right to assign or transfer this Agreement, including any of its rights hereunder to any assignee\nor successor of FARO, which assignee or successor is then expressly authorized to enforce the terms of this Agreement. This\nAgreement is personal to the Employee and not assignable or transferable by Employee and any attempt to do so shall be void.\n10. Modification. This Agreement contains the entire Agreement of the parties concerning the subject matter hereof. This Agreement\nshall not be amended except by a writing signed by both FARO and Employee.\n11. Waiver. No delay or failure by Employer in exercising any of its rights, remedies, powers, or privileges hereunder, at law or in\nequity, and no course of dealing between Employer and Employee or any other person shall be deemed to be a waiver by Employer of\nany such rights, remedies, powers, or privileges, even if such delay or failure is continuo us or repeated, nor shall any single or partial\nexercise of any right, remedy, power, or privilege preclude any other or further exercise thereof by Employer or the exercise of any\nother right, remedy, power, or privilege by Employer.\n12. Effect of Prior Agreements. Except as otherwise provided in this Section, this Agreement, including the exhibits hereto, embodies\nthe entire agreement and understanding of Employer and Employee in respect of the matters set forth herein and supersedes all prior\nagreements, representations, warranties, promises, covenants, arrangements, communications and understandings, oral or written,\nexpress or implied, between the parties with respect to such transactions. If this Agreement is held to be void or unenforceable for\nany reason, then the terms and provisions of any prior version of this “Intellectual Property and Confidentiality Agreement”\n(including any Non-Competition and Non-Solicitation Addendum) signed by Employee shall remain in full force and effect.\n13. Construction. The parties intend that this Agreement provides FARO with the maximum protection allowed by law. Accordingly, if a\ncourt determines that any restrictions of this Agreement are unenforceable because they are overly broad or\nPage 4\nnot reasonably necessary to protect FARO’s legitimate business interests, the parties agree that the Court should interpret and enforce\nsuch restrictions in the manner necessary to provide FARO with the maximum protection allowed by law. The covenants set forth in\nthis Agreement shall be considered and construed as separate and independent covenants. The existence of any claim or cause of\naction against of the Employee against Employer shall not constitute a defense to enforcement by Employer of any of the terms and\nconditions of this Agreement. Should any part or provision of any covenant be held invalid, void or unenforceable in any court of\ncompetent jurisdiction, such invalidity, voidness or unenforceability shall not render invalid, void or unenforceable any other part or\nprovision of this Agreement.\n14. Miscellaneous. When used herein, one gender means any gender. The term “I”, “me” or “mine” means the Employee. Any use of the\nsingular shall include plural and vice versa. Use of the word “shall” means such action is mandatory. The title of this Agreement and\nthe paragraph headings are used for the purpose of convenience only and shall not be used to interpret or explain any portion of the\ntext hereof.\n15. At-Will Employment. Notwithstanding anything to the contrary, Employee shall at all times be an employee-at-will. This\nAgreement is not intended to create a contract of employment between FARO and Employee. FARO maintains its policy of\nemployment-at-will.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year indicated below.\nEmployee Signature:\nPrint Name:\nDate:\nFARO Technologies, Inc.\nBy:\nPrint Name:\nTitle:\nDate:\nPage 5\nNON-COMPETITION AND NON-SOLICITATION ADDENDUM\nTO INTELLECTUAL PROPERTY AND CONFIDENTIALITY AGREEMENT\nEmployee hereby further covenants and agrees to the following:\nA. Acknowledgment.\nEmployee acknowledges and agrees that, solely as a result of Employee’s employment with FARO and over the course of Employee’s\nemployment with FARO, Employee will: (1) be provided with special, unique, and extraordinary training, education and experience related to the\nBusiness; (2) be exposed to and/or in a position to generate Confidential Information of FARO; and (3) as a Sales Employee (as defined below),\ngenerate customer goodwill on behalf of FARO. Employee further acknowledges and agrees that FARO makes use of its Confidential\nInformation throughout the world and invests significant time and money, including Employee’s salary, to provide Employee with such special,\nunique, and extraordinary training, education and experience related to the Business and to generate customer goodwill on behalf of FARO, all of\nwhich are legitimate business interests of FARO. Employee further acknowledges and agrees that the restrictions in this Addendum are\nreasonable and necessary to allow FARO to protect its legitimate business interests. In consideration of the foregoing and of the benefits\ngenerally provided to the Employee by Employer, and in connection with FARO’s protection of its legitimate business interests, Employee agrees\nto abide and be bound by the restrictions of this Addendum, which restrictions are intended by the parties to extend to any and all activities of the\nEmployee, whether as an independent contractor, partner or joint venturer, or as an officer, director, stockholder, agent, employee or salesman for\nany person, firm, partnership, corporation or other entity, or otherwise.\nB. Additional Definitions.\n“FARO Competitor” means (i) any business or enterprise that provides goods and/or services similar to or competitive with FARO (each such\nbusiness or enterprise, a “Competitor”), including, without limitation, those persons or entities identified on Schedule 1 as current competitors of\nFARO as of the date hereof or (ii) any of such Competitor’s subsidiaries, affiliates, agents or distributors, irrespective or whether the subsidiary,\naffiliate, agent or distributor itself provides goods and/or services similar to or competitive with FARO. As used in this definition, “affiliate”\nincludes any entity, business or enterprise that, directly or indirectly, controls a Competitor or is under common control through another person or\nentity with a Competitor. The terms “controls,” “controlled by,” and “under common control” mean, when used with respect to any specified\nlegal entity, the power to direct the management and policies of such entity, directly or indirectly, whether through the ownership of voting\nsecurities, by contract or otherwise.\n“Restricted Period” means the term of Employee’s employment with FARO and for a period of twenty-four months after the date Employee’s\nemployment with FARO is terminated for any reason.\n“Sales Employee” means any Employee that deals with Customers and Prospective Customers with the intention of producing sales and\nrepresents FARO with respect to such Customers and Prospective Customers within a designated geographic territory.\nC. Non-Competition.\nIn order to protect FARO’s Trade Secret and Confidential Information, third-party goodwill and other legitimate business interests,\nEmployee acknowledges and agrees that during the Restricted Period, Employee will not, without FARO’s express written permission, directly or\nindirectly, assist, be employed by, consult with, or provide services to any FARO Competitor. Employee understands and agrees that, during the\nRestricted Period, he is and will be subject to the restrictions set forth in this Paragraph C anywhere within the geographic boundaries of the\ncontinental United States; provided, however, that Sales Employees shall be subject to the restrictions set forth in this Paragraph C during the\nRestricted Period within the geographic territory that the Employee represented for the Employer within the twenty-four (24) months prior to the\ntermination of employment.\nPage 6\nD. Non-Solicitation.\nDuring the Restricted Period, Employee shall not, without the prior written permission of Employer, directly or indirectly, for himself or on\nbehalf of any other person or entity, (i) solicit, call upon, encourage or contact, or attempt to solicit, call upon, encourage or contact any\nCustomer or Prospective Customer of the Employer for purposes of providing products or services competitive with the Business or causing such\nperson or entity to terminate their business relationship with Employer or (ii) accept business from or provide goods or services to any Customer\nor Prospective Customer of the Employer.\nE. Non-Recruitment.\nDuring the Restricted Period, Employee shall not, directly or indirectly, without the prior written permission of Employer, solicit or induce,\nor attempt to solicit or induce, any employee of Employer to terminate his or her relationship with Employer and/or to enter into an employment\nor agency relationship with Employee or with any other person or entity with whom Employee is affiliated, provided that the restriction in this\nsection shall apply only to employees of Employer with whom Employee worked by virtue of and during his or her employment with Employer.\nF. Miscellaneous.\na. The period of time during which Employee is prohibited from engaging in certain business practices under this Addendum shall be\nextended by the length of time during which Employee is in breach of such covenants.\nb. It is understood by and between the parties hereto that the restrictive covenants set forth in this Addendum hereof are essential\nelements of the employment arrangement between Employee and Employer, and that but for such covenants, Employer would not have agreed to\nhire Employee. The existence of any claim or cause of action of the Employee against Employer shall not constitute a defense to the enforcement\nby Employer of such covenants. The restrictive covenants, and rights and protections provided by the restrictive covenants, are assignable by\nEmployer, but not by Employee.\nc. The covenants set forth in this Agreement shall be considered and construed as separate and independent covenants. Should any\npart or provision of any covenant be held invalid, void or unenforceable in any court of competent jurisdiction, such invalidity, voidness or\nunenforceability shall not render invalid, void or unenforceable any other part or provision of this Agreement. If any portion of the foregoing\nprovisions is found to be invalid or unenforceable by a court of competent jurisdiction because its duration, the territory, the definition of\nactivities or the definition of information covered is considered to be invalid or unreasonable in scope, the invalid or unreasonable term shall be\nredefined, or a new enforceable term provided, such that the intent of Employer and Employee in agreeing to the provisions of this Agreement\nwill not be impaired and the provision in question shall be enforceable to the fullest extent of the applicable laws.\nd. Employee shall, no later than the last day of his or her employment, deliver to Employer at its offices in Lake Mary, Florida a\nwritten, signed and notarized confirmation that Employee is aware of his or her obligations under this Non-Competition and Non-Solicitation\nAddendum and that Employee will comply with its terms.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year indicated below.\nEmployee Signature:\nPrint Name:\nDate:\nPage 7\nFARO Technologies, Inc.\nBy:\nPrint Name:\nTitle:\nDate:\nPage 8
+b928d4e298ac71de38b7f167e6f056de.pdf	effective_date jurisdiction party term	EX-10 .2 3 ex10-2 .htm\nNON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT (“Agreement”) dated as of November 8,\n2016, but effective as of July 14, 2016 (the “Effective Date”) (the “Effective Date”), by and between Wizard World, Inc., a Delaware corporation\nwith a principal place of business at 662 N. Sepulveda Blvd., Suite 300, Los Angeles, CA 90049 (“Employer”), and Randall S. Malinoff, an\nindividual and resident of the State of California with an address at 25262 Prado De La Puma, Calabasas, CA 91302 (“Employee” and together\nwith Employer, the “Parties” and each, a “Party”).\nWITNESSETH:\nWHEREAS, Employee and Employer are entering into that certain Employment Agreement, dated as of the date of this Agreement;\nWHEREAS, in connection with such employment, Employee has been and may be given further access to, generate, or otherwise come\ninto contact with certain proprietary and/or confidential information of Employer or clients of Employer; and\nWHEREAS, Employee and Employer desire to prevent the dissemination, unauthorized disclosure or misuse of such information.\nNOW THEREFORE, the parties hereto mutually agree as follows:\n1. Covenant Not to Solicit. During the period commencing on the Effective Date and ending upon the termination of Employee’s\nemployment for any reason, Employee shall not, directly or indirectly, for Employee’s benefit or the benefit of a third party, (i) induce or attempt\nto induce any employees of Employer to leave the employ of Employer or diminish his or her relationship or Employer or (ii) solicit the business\nof any client or customer of Employer, or any client or customer that could reasonably be expected to be a client or customer of Employer, during\nEmployee’s period of employment with the Company.\n2. Covenant Not to Compete. Except for the activities set forth in Schedule I hereto and as a passive investor in less than five percent\n(5%) of the equity securities of a publicly held company, during the period commencing on the date hereof and ending upon the termination of\nEmployee’s employment for any reason, Employee shall not engage in, own or control an interest in, or act as principal, director or officer of, or\nconsultant to, any firm or corporation (i) engaged in a venture or business substantially similar to that of Employer or (ii) which is in direct or\nindirect competition with Employer within the United States of America, its territories and possessions.\n3. Proprietary Information.\n(a) For purposes of this Agreement, “Proprietary Information” shall mean any information belonging to the business of Employer that\nhas not previously been publicly released by duly authorized representatives of Employer and shall include (but shall not be limited to)\ninformation encompassed in all proposals, marketing and sales plans, financial information, costs, pricing information, computer programs\n(including source code, object code, algorithms and models), customer information, customer lists, and all methods, concepts, know-how or ideas\nand confidential information belonging to Employer and Employer’s customers or clients. Employee agrees to regard and preserve as\nconfidential all Proprietary Information whether Employee has such Proprietary Information in Employee’s memory or in writing or other\nphysical form.\n(b) Notwithstanding the foregoing, “Proprietary Information” shall not include information that (i) is disseminated to the public at no\nfault of Employee, (ii) was obtained from a third party that did not have an obligation of confidentiality to Employer, (iii) is already in the\npossession of Employee and (iv) constitutes any information proposals, marketing and sales plans, financial information, costs, pricing\ninformation, computer programs (including source code, object code, algorithms and models), customer information, customer lists, and all\nmethods, concepts, know-how or ideas, created or generated by Employee for which Employer has not been fully compensated.\n(c) Employee will not, without written authority from Employer to do so, directly or indirectly, disclose or use any Proprietary\nInformation for Employee’s benefit or purposes, nor disclose any Proprietary Information to others, either during the term of Employee’s\nemployment by Employer or thereafter, except as required by the conditions of Employee’s employment by Employer.\n(d) No work or intellectual property created by Employee shall be deemed work for hire and Employer shall only have the rights to\nsuch work or intellectual property after fully compensating Employee for such work or intellectual property.\n4. Saving Provision. Employee expressly agrees that the covenants set forth in this Agreement are being given to Employer in\nconnection with the employment of Employee by Employer and that such covenants are intended to protect Employer against the competition by\nEmployee, within the terms stated, to the fullest extent deemed reasonable and permitted in law and equity. In the event that the foregoing\nlimitations upon the conduct of Employee are beyond those permitted by law, such limitations, both as to time and geographical area, shall be,\nand be deemed to be, reduced in scope and effect to the maximum extent permitted by law.\n5. Injunctive Relief. Employee acknowledges that (i) disclosure of any Proprietary Information or breach of any of the non-competitive\ncovenants or agreements contained herein will give rise to irreparable injury to Employer or clients of Employer that would be inadequately\ncompensable in damages. Accordingly, Employer, or where appropriate a client of Employer, may seek and obtain injunctive relief against the\nbreach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. Employee further\nacknowledges and agrees that in the event of the termination of employment with Employer, (ii) Employee’s experience and capabilities are such\nthat Employee can obtain employment in business activities which are of a different or non-competing nature with his or her activities as an\nemployee of Employer and (iii) the enforcement of a remedy hereunder by way of injunction shall not prevent Employee from earning a\nreasonable livelihood. Employee further acknowledges and agrees that the covenants contained herein are necessary for the protection of the\nCompany’s legitimate business interests and are reasonable in scope and content, and that Employee will, promptly upon the request of Employer\nat any time, cause any subsequent employer to execute and deliver to Employer a confidentiality and non-disclosure agreement in substantially\nthe form of Section 2 hereof and otherwise satisfactory to Employer.\n6. Enforceability. The provisions of this Agreement shall be enforceable notwithstanding the existence of any claim or cause of action of\nEmployee against Employer whether predicated on this Agreement or otherwise.\n7. Term. This Agreement shall commence on the date hereof and shall terminate upon the termination of Employee’s employment for\nany reason.\n8. Governing Law. The Agreement shall be construed in accordance with the laws of the State of New York and any dispute under this\nAgreement will only be brought in the state and federal courts located in the State of New York.\n9. General. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof. This Agreement may be\nmodified only by an instrument in writing signed by both Parties hereto. Any notice to be given under this Agreement shall be sufficient if it is in\nwriting and is sent by certified or registered mail to Employee at his residence address as the same appears on the books and records of Employer\nor to Employer at its principal office, attention of the President, or otherwise as directed by Employer, from time to time. Non-compliance with\nany one paragraph of this Agreement shall not have an effect on the validity of any other part of this Agreement. The provisions of this\nAgreement relating to confidentiality or non-competition shall survive the termination of employment, however caused.\n[-signature page follows-]\nIN WITNESS HEREOF, the undersigned execute this Agreement as of the date first set forth above.\nEMPLOYER\nWIZARD WORLD, INC.\nBy: /s/ John D. Maatta\nJohn D. Maatta\nPresident & Chief Executive Officer\nEMPLOYEE\n/s/ Randall S. Malinoff\nRandall S. Malinoff	EX-10.2 3 ex10-2.htm\nNON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT (“Agreement”) dated as of November 8,\n2016, but effective as of July 14, 2016 (the “Effective Date”) (the “Effective Date”), by and between Wizard World, Inc., a Delaware corporation\nwith a principal place of business at 662 N. Sepulveda Blvd., Suite 300, Los Angeles, CA 90049 (“Employer”), and Randall S. Malinoff, an\nindividual and resident of the State of California with an address at 25262 Prado De La Puma, Calabasas, CA 91302 (“Employee” and together\nwith Employer, the “Parties” and each, a “Party”).\nWITNESSETH:\nWHEREAS, Employee and Employer are entering into that certain Employment Agreement, dated as of the date of this Agreement;\nWHEREAS, in connection with such employment, Employee has been and may be given further access to, generate, or otherwise come\ninto contact with certain proprietary and/or confidential information of Employer or clients of Employer; and\nWHEREAS, Employee and Employer desire to prevent the dissemination, unauthorized disclosure or misuse of such information.\nNOW THEREFORE, the parties hereto mutually agree as follows:\n1. Covenant Not to Solicit. During the period commencing on the Effective Date and ending upon the termination of Employee’s\nemployment for any reason, Employee shall not, directly or indirectly, for Employee’s benefit or the benefit of a third party, (i) induce or attempt\nto induce any employees of Employer to leave the employ of Employer or diminish his or her relationship or Employer or (ii) solicit the business\nof any client or customer of Employer, or any client or customer that could reasonably be expected to be a client or customer of Employer, during\nEmployee’s period of employment with the Company.\n2. Covenant Not to Compete. Except for the activities set forth in Schedule I hereto and as a passive investor in less than five percent\n(5%) of the equity securities of a publicly held company, during the period commencing on the date hereof and ending upon the termination of\nEmployee’s employment for any reason, Employee shall not engage in, own or control an interest in, or act as principal, director or officer of, or\nconsultant to, any firm or corporation (i) engaged in a venture or business substantially similar to that of Employer or (ii) which is in direct or\nindirect competition with Employer within the United States of America, its territories and possessions.\n3. Proprietary Information.\n(a) For purposes of this Agreement, “Proprietary Information” shall mean any information belonging to the business of Employer that\nhas not previously been publicly released by duly authorized representatives of Employer and shall include (but shall not be limited to)\ninformation encompassed in all proposals, marketing and sales plans, financial information, costs, pricing information, computer programs\n(including source code, object code, algorithms and models), customer information, customer lists, and all methods, concepts, know-how or ideas\nand confidential information belonging to Employer and Employer’s customers or clients. Employee agrees to regard and preserve as\nconfidential all Proprietary Information whether Employee has such Proprietary Information in Employee’s memory or in writing or other\nphysical form.\n(b) Notwithstanding the foregoing, “Proprietary Information” shall not include information that (i) is disseminated to the public at no\nfault of Employee, (ii) was obtained from a third party that did not have an obligation of confidentiality to Employer, (iii) is already in the\npossession of Employee and (iv) constitutes any information proposals, marketing and sales plans, financial information, costs, pricing\ninformation, computer programs (including source code, object code, algorithms and models), customer information, customer lists, and all\nmethods, concepts, know-how or ideas, created or generated by Employee for which Employer has not been fully compensated.\n(c) Employee will not, without written authority from Employer to do so, directly or indirectly, disclose or use any Proprietary\nInformation for Employee’s benefit or purposes, nor disclose any Proprietary Information to others, either during the term of Employee’s\nemployment by Employer or thereafter, except as required by the conditions of Employee’s employment by Employer.\n(d) No work or intellectual property created by Employee shall be deemed work for hire and Employer shall only have the rights to\nsuch work or intellectual property after fully compensating Employee for such work or intellectual property.\n4. Saving_Provision. Employee expressly agrees that the covenants set forth in this Agreement are being given to Employer in\nconnection with the employment of Employee by Employer and that such covenants are intended to protect Employer against the competition by\nEmployee, within the terms stated, to the fullest extent deemed reasonable and permitted in law and equity. In the event that the foregoing\nlimitations upon the conduct of Employee are beyond those permitted by law, such limitations, both as to time and geographical area, shall be,\nand be deemed to be, reduced in scope and effect to the maximum extent permitted by law.\n5. Injunctive Relief. Employee acknowledges that (i) disclosure of any Proprietary Information or breach of any of the non-competitive\ncovenants or agreements contained herein will give rise to irreparable injury to Employer or clients of Employer that would be inadequately\ncompensable in damages. Accordingly, Employer, or where appropriate a client of Employer, may seek and obtain injunctive relief against the\nbreach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. Employee further\nacknowledges and agrees that in the event of the termination of employment with Employer, (ii) Employee’s experience and capabilities are such\nthat Employee can obtain employment in business activities which are of a different or non-competing nature with his or her activities as an\nemployee of Employer and (iii) the enforcement of a remedy hereunder by way of injunction shall not prevent Employee from earning a\nreasonable livelihood. Employee further acknowledges and agrees that the covenants contained herein are necessary for the protection of the\nCompany’s legitimate business interests and are reasonable in scope and content, and that Employee will, promptly upon the request of Employer\nat any time, cause any subsequent employer to execute and deliver to Employer a confidentiality and non-disclosure agreement in substantially\nthe form of Section 2 hereof and otherwise satisfactory to Employer.\n6. Enforceability. The provisions of this Agreement shall be enforceable notwithstanding the existence of any claim or cause of action of\nEmployee against Employer whether predicated on this Agreement or otherwise.\n7. Term. This Agreement shall commence on the date hereof and shall terminate upon the termination of Employee’s employment for\nany reason.\n8. Governing Law. The Agreement shall be construed in accordance with the laws of the State of New York and any dispute under this\nAgreement will only be brought in the state and federal courts located in the State of New York.\n9. General. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof. This Agreement may be\nmodified only by an instrument in writing signed by both Parties hereto. Any notice to be given under this Agreement shall be sufficient if it is in\nwriting and is sent by certified or registered mail to Employee at his residence address as the same appears on the books and records of Employer\nor to Employer at its principal office, attention of the President, or otherwise as directed by Employer, from time to time. Non-compliance with\nany one paragraph of this Agreement shall not have an effect on the validity of any other part of this Agreement. The provisions of this\nAgreement relating to confidentiality or non-competition shall survive the termination of employment, however caused.\n[-signature page follows-]\nIN WITNESS HEREOF, the undersigned execute this Agreement as of the date first set forth above.\nEMPLOYER\nWIZARD WORLD, INC.\nBy: /s/ John D. Maatta\nJohn D. Maatta\nPresident & Chief Executive Officer\nEMPLOYEE\n/s/ Randall S. Malinoff\nRandall S. Malinoff	EX-10.2 3 ex10-2.htm\nNON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT ("Agreement") dated as of November 8,\n2016, but effective as of July 14, 2016 (the "Effective Date") (the "Effective Date") by and between Wizard World, Inc., a Delaware corporation\nwith a principal place of business at 662 N. Sepulveda Blvd., Suite 300, Los Angeles, CA 90049 ("Employer"), and Randall S. Malinoff, an\nindividual and resident of the State of California with an address at 25262 Prado De La Puma, Calabasas, CA 91302 ("Employee" and together\nwith Employer, the "Parties" and each, a "Party").\nWITNESSETH:\nWHEREAS, Employee and Employer are entering into that certain Employment Agreement, dated as of the date of this Agreement;\nWHEREAS, in connection with such employment, Employee has been and may be given further access to, generate, or otherwise come\ninto contact with certain proprietary and/or confidential information of Employer or clients of Employer; and\nWHEREAS, Employee and Employer desire to prevent the dissemination, unauthorized disclosure or misuse of such information\nNOW THEREFORE, the parties hereto mutually agree as follows:\n1. Covenant Not to Solicit. During the period commencing on the Effective Date and ending upon the termination of Employee's\nemployment\nfor\nany\nreason,\nEmployee\nshall\nnot,\ndirectly\nor\nindirectly,\nfor\nEmployee's\nbenefit\nor\nthe\nbenefit\nof\na\nthird\nparty,\n(i)\ninduce\nor\nattempt\nto\ninduce any employees of Employer to leave the employ of Employer or diminish his or her relationship or Employer or (ii) solicit the business\nof any client or customer of Employer, or any client or customer that could reasonably be expected to be a client or customer of Employer, during\nEmployee's period of employment with the Company.\n2. Covenant Not to Compete. Except for the activities set forth in Schedule I hereto and as a passive investor in less than five percent\n(5%)\nof\nthe\nequity\nsecurities\nof\na\npublicly\nheld\ncompany,\nduring\nthe\nperiod\ncommencing\non\nthe\ndate\nhereof\nand\nending\nupon\nthe\ntermination\nof\nEmployee's employment for any reason, Employee shall not engage in, own or control an interest in, or act as principal, director or officer of, or\nconsultant to, any firm or corporation (i) engaged in a venture or business substantially similar to that of Employer or (ii) which is in direct or\nindirect competition with Employer within the United States of America, its territories and possessions.\n3. Proprietary Information\n(a) For purposes of this Agreement, "Proprietary Information" shall mean any information belonging to the business of Employer that\nhas not previously been publicly released by duly authorized representatives of Employer and shall include (but shall not be limited to)\ninformation encompassed in all proposals, marketing and sales plans, financial information, costs, pricing information, computer programs\n(including source code, object code, algorithms and models), customer information, customer lists, and all methods, concepts, know-how or ideas\nand confidential information belonging to Employer and Employer's customers or clients. Employee agrees to regard and preserve as\nconfidential all Proprietary Information whether Employee has such Proprietary Information in Employee's memory or in writing or other\nphysical form.\n(b) Notwithstanding the foregoing, "Proprietary Information" shall not include information that (i) is disseminated to the public at\nno\nfault of Employee, (ii) was obtained from a third party that did not have an obligation of confidentiality to Employer, (iii) is already in the\npossession of Employee and (iv) constitutes any information proposals, marketing and sales plans, financial information, costs, pricing\ninformation, computer programs (including source code, object code, algorithms and models), customer information, customer lists, and all\nmethods, concepts, know-how or ideas, created or generated by Employee for which Employer has not been fully compensated.\n(c) Employee will not, without written authority from Employer to do so, directly or indirectly, disclose or use any Proprietary\nInformation for Employee's benefit or purposes, nor disclose any Proprietary Information to others, either during the term of Employee's\nemployment by Employer or thereafter, except as required by the conditions of Employee's employment by Employer.\n(d) No work or intellectual property created by Employee shall be deemed work for hire and Employer shall only have the rights\nto\nsuch work or intellectual property after fully compensating Employee for such work or intellectual property.\n4. Saving_Provision. Employee expressly agrees that the covenants set forth in this Agreement are being given to Employer\nin\nconnection with the employment of Employee by Employer and that such covenants are intended to protect Employer against the competition by\nEmployee, within the terms stated, to the fullest extent deemed reasonable and permitted in law and equity. In the event that the foregoing\nlimitations upon the conduct of Employee are beyond those permitted by law, such limitations, both as to time and geographical area, shall be,\nand be deemed to be, reduced in scope and effect to the maximum extent permitted by law.\n5. Injunctive Relief. Employee acknowledges that (i) disclosure of any Proprietary Information or breach of any of the non-competitive\ncovenants or agreements contained herein will give rise to irreparable injury to Employer or clients of Employer that would be\ninadequately\ncompensable in damages. Accordingly, Employer, or where appropriate a client of Employer, may seek and obtain injunctive relief against the\nbreach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. Employee further\nacknowledges and agrees that in the event of the termination of employment with Employer, (ii) Employee's experience and capabilities are such\nthat Employee can obtain employment in business activities which are of a different or non-competing nature with his or her activities as an\nemployee of Employer and (iii) the enforcement of a remedy hereunder by way of injunction shall not prevent Employee from earning\na\nreasonable livelihood. Employee further acknowledges and agrees that the covenants contained herein are necessary for the protection of the\nCompany's legitimate business interests and are reasonable in scope and content, and that Employee will, promptly upon the request of Employer\nat any time, cause any subsequent employer to execute and deliver to Employer a confidentiality and non-disclosure agreement in substantially\nthe form of Section 2 hereof and otherwise satisfactory to Employer.\n6. Enforceability.. The provisions of this Agreement shall be enforceable notwithstanding the existence of any claim or cause of action of\nEmployee against Employer whether predicated on this Agreement or otherwise.\n7. Term. This Agreement shall commence on the date hereof and shall terminate upon the termination of Employee's employment for\nany reason\n8.\nGoverning Law. The Agreement shall be construed in accordance with the laws of the State of New York and any dispute under this\nAgreement will only be brought in the state and federal courts located in the State of New York.\n9. General. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof. This Agreement may be\nmodified only by an instrument in writing signed by both Parties hereto. Any notice to be given under this Agreement shall be sufficient if it is in\nwriting and is sent by certified or registered mail to Employee at his residence address as the same appears on the books and records of Employer\nor\nto Employer at its principal office, attention of the President, or otherwise as directed by Employer, from time to time. Non-compliance with\nany one paragraph of this Agreement shall not have an effect on the validity of any other part of this Agreement. The provisions of this\nAgreement relating to confidentiality or non-competition shall survive the termination of employment, however caused.\n[-signature page follows-]\nIN\nWITNESS HEREOF, the undersigned execute this Agreement as of the date first set forth above.\nEMPLOYER\nWIZARD WORLD, INC.\nBy: /s/ John D. Maatta\nJohn D. Maatta\nPresident & Chief Executive Officer\nEMPLOYEE\n/s/ Randall S. Malinoff\nRandall S. Malinoff	EX-10 .2 3 ex10-2 .htm\nNON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETE, NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT (“Agreement”) dated as of November 8,\n2016, but effective as of July 14, 2016 (the “Effective Date”) (the “Effective Date”), by and between Wizard World, Inc., a Delaware corporation\nwith a principal place of business at 662 N. Sepulveda Blvd., Suite 300, Los Angeles, CA 90049 (“Employer”), and Randall S. Malinoff, an\nindividual and resident of the State of California with an address at 25262 Prado De La Puma, Calabasas, CA 91302 (“Employee” and together\nwith Employer, the “Parties” and each, a “Party”).\nWITNESSETH:\nWHEREAS, Employee and Employer are entering into that certain Employment Agreement, dated as of the date of this Agreement;\nWHEREAS, in connection with such employment, Employee has been and may be given further access to, generate, or otherwise come\ninto contact with certain proprietary and/or confidential information of Employer or clients of Employer; and\nWHEREAS, Employee and Employer desire to prevent the dissemination, unauthorized disclosure or misuse of such information.\nNOW THEREFORE, the parties hereto mutually agree as follows:\n1. Covenant Not to Solicit. During the period commencing on the Effective Date and ending upon the termination of Employee’s\nemployment for any reason, Employee shall not, directly or indirectly, for Employee’s benefit or the benefit of a third party, (i) induce or attempt\nto induce any employees of Employer to leave the employ of Employer or diminish his or her relationship or Employer or (ii) solicit the business\nof any client or customer of Employer, or any client or customer that could reasonably be expected to be a client or customer of Employer, during\nEmployee’s period of employment with the Company.\n2. Covenant Not to Compete. Except for the activities set forth in Schedule I hereto and as a passive investor in less than five percent\n(5%) of the equity securities of a publicly held company, during the period commencing on the date hereof and ending upon the termination of\nEmployee’s employment for any reason, Employee shall not engage in, own or control an interest in, or act as principal, director or officer of, or\nconsultant to, any firm or corporation (i) engaged in a venture or business substantially similar to that of Employer or (ii) which is in direct or\nindirect competition with Employer within the United States of America, its territories and possessions.\n3. Proprietary Information.\n(a) For purposes of this Agreement, “Proprietary Information” shall mean any information belonging to the business of Employer that\nhas not previously been publicly released by duly authorized representatives of Employer and shall include (but shall not be limited to)\ninformation encompassed in all proposals, marketing and sales plans, financial information, costs, pricing information, computer programs\n(including source code, object code, algorithms and models), customer information, customer lists, and all methods, concepts, know-how or ideas\nand confidential information belonging to Employer and Employer’s customers or clients. Employee agrees to regard and preserve as\nconfidential all Proprietary Information whether Employee has such Proprietary Information in Employee’s memory or in writing or other\nphysical form.\n(b) Notwithstanding the foregoing, “Proprietary Information” shall not include information that (i) is disseminated to the public at no\nfault of Employee, (ii) was obtained from a third party that did not have an obligation of confidentiality to Employer, (iii) is already in the\npossession of Employee and (iv) constitutes any information proposals, marketing and sales plans, financial information, costs, pricing\ninformation, computer programs (including source code, object code, algorithms and models), customer information, customer lists, and all\nmethods, concepts, know-how or ideas, created or generated by Employee for which Employer has not been fully compensated.\n(c) Employee will not, without written authority from Employer to do so, directly or indirectly, disclose or use any Proprietary\nInformation for Employee’s benefit or purposes, nor disclose any Proprietary Information to others, either during the term of Employee’s\nemployment by Employer or thereafter, except as required by the conditions of Employee’s employment by Employer.\n(d) No work or intellectual property created by Employee shall be deemed work for hire and Employer shall only have the rights to\nsuch work or intellectual property after fully compensating Employee for such work or intellectual property.\n4. Saving Provision. Employee expressly agrees that the covenants set forth in this Agreement are being given to Employer in\nconnection with the employment of Employee by Employer and that such covenants are intended to protect Employer against the competition by\nEmployee, within the terms stated, to the fullest extent deemed reasonable and permitted in law and equity. In the event that the foregoing\nlimitations upon the conduct of Employee are beyond those permitted by law, such limitations, both as to time and geographical area, shall be,\nand be deemed to be, reduced in scope and effect to the maximum extent permitted by law.\n5. Injunctive Relief. Employee acknowledges that (i) disclosure of any Proprietary Information or breach of any of the non-competitive\ncovenants or agreements contained herein will give rise to irreparable injury to Employer or clients of Employer that would be inadequately\ncompensable in damages. Accordingly, Employer, or where appropriate a client of Employer, may seek and obtain injunctive relief against the\nbreach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available. Employee further\nacknowledges and agrees that in the event of the termination of employment with Employer, (ii) Employee’s experience and capabilities are such\nthat Employee can obtain employment in business activities which are of a different or non-competing nature with his or her activities as an\nemployee of Employer and (iii) the enforcement of a remedy hereunder by way of injunction shall not prevent Employee from earning a\nreasonable livelihood. Employee further acknowledges and agrees that the covenants contained herein are necessary for the protection of the\nCompany’s legitimate business interests and are reasonable in scope and content, and that Employee will, promptly upon the request of Employer\nat any time, cause any subsequent employer to execute and deliver to Employer a confidentiality and non-disclosure agreement in substantially\nthe form of Section 2 hereof and otherwise satisfactory to Employer.\n6. Enforceability. The provisions of this Agreement shall be enforceable notwithstanding the existence of any claim or cause of action of\nEmployee against Employer whether predicated on this Agreement or otherwise.\n7. Term. This Agreement shall commence on the date hereof and shall terminate upon the termination of Employee’s employment for\nany reason.\n8. Governing Law. The Agreement shall be construed in accordance with the laws of the State of New York and any dispute under this\nAgreement will only be brought in the state and federal courts located in the State of New York.\n9. General. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof. This Agreement may be\nmodified only by an instrument in writing signed by both Parties hereto. Any notice to be given under this Agreement shall be sufficient if it is in\nwriting and is sent by certified or registered mail to Employee at his residence address as the same appears on the books and records of Employer\nor to Employer at its principal office, attention of the President, or otherwise as directed by Employer, from time to time. Non-compliance with\nany one paragraph of this Agreement shall not have an effect on the validity of any other part of this Agreement. The provisions of this\nAgreement relating to confidentiality or non-competition shall survive the termination of employment, however caused.\n[-signature page follows-]\nIN WITNESS HEREOF, the undersigned execute this Agreement as of the date first set forth above.\nEMPLOYER\nWIZARD WORLD, INC.\nBy: /s/ John D. Maatta\nJohn D. Maatta\nPresident & Chief Executive Officer\nEMPLOYEE\n/s/ Randall S. Malinoff\nRandall S. Malinoff
+b960e85adabccfba6d758948a1ecc804.pdf	effective_date jurisdiction party term	EX-10.1 2 dex101.htm SEVERANCE AND NONCOMPETITION AGREEMENT WITH RAJEEV MEHTA\nExhibit 10.1\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nSEVERANCE AND NONCOMPETITION AGREEMENT\nIn consideration of the employment of the undersigned (“Employee”), Cognizant Technology Solutions Corporation, including any of its\naffiliates or direct or indirect subsidiaries (collectively, the “Company”), and as a condition of continued Employment, Employee agrees as follows:\n1. Ownership and Non-disclosure of Proprietary Information:\nThe Employee acknowledges that all Proprietary Information, as defined below, is the exclusive property of the Company or the party that disclosed\nor delivered the same to the Company. Specifically, Employee agrees that all Proprietary Information developed as a direct or indirect result of\nEmployee’s efforts during any period of employment with the Company shall be and shall remain the exclusive property of the Company, and the\nEmployee shall have no ownership interest therein. To the extent Employee may have any interest in such developed Proprietary Information,\nEmployee assigns such interest to the Company.\nTo the extent a copyright may be obtained in any Proprietary Information, (i) that copyright shall be considered the property of the Company,\n(ii) the Proprietary Information shall be “works made for hire” under the Copyright Act of 1976 (the “Copyright Act”), the copyright for those works\nshall be the sole property of the Company and the Company shall be the sole author of such works within the meaning of the Copyright Act,\n(iii) Employee hereby assigns to the Company any of his rights to any such copyrightable material and (iv) Employee expressly disclaims any and all\ninterest he may have in the works. In the event that the copyright to any work may not be the property of the Company by operation of law,\nEmployee irrevocably assigns to the Company all right, title and interest in the work, including all so-called “moral rights.” If the moral rights\ncannot be assigned under the laws of a country where such rights exist, Employee hereby waives all of his moral rights and consents to any action of\nthe Company that would violate such rights in the absence of such consent.\nWhile employed by the Company and for a period of three (3) years thereafter, Employee shall not use or disclose any Proprietary Information,\ndirectly or indirectly, except as authorized by the Company in connection with Employee’s assigned duties. The foregoing notwithstanding,\nEmployee shall not at any time use or disclose, directly or indirectly, any of the Proprietary Information constituting Trade Secrets of the Company,\nas defined below, except as authorized by the Company in connection with Employee’s assigned duties.\n2. Definitions:\n“Proprietary Information,” as referred to herein, includes all of the following information and material, whether or not reduced to writing and\nwhether or not patentable, that Employee during any period of employment with the Company has access to or develops in whole or in part as a\ndirect or indirect result of such employment or through the use of any of the Company’s facilities or resources:\n(i) application, operating system, communication and other computer software, including, without limitation, all source and object code,\nflow charts, algorithms, coding sheets, routines, sub-routines, compilers, assemblers, design concepts and related documentation and\nmanuals;\n(ii) production processes, marketing techniques, purchasing information, fee lists, licensing policies, quoting procedures, financial\ninformation, employee names and job descriptions, customer and prospective customer names and requirements, data and other\ninformation or material relating to the manner in which any customer, prospective customer or the Company does business;\n(iii) discoveries, concepts and ideas (including, but not limited to, the nature and results of research and development activities),\nprocesses, formulae, techniques, “know-how,” designs, drawings and specifications;\n(iv) any other information or material relating to the business or activities of the Company which is not generally known to others\nengaged in similar businesses or activities;\n(v) all inventions and ideas which are derived from or relate to Employee’s access to or knowledge of any of the information or material\ndescribed herein; and\n(vi) any of the information or material described herein which is the property of any other person or firm which has revealed or delivered\nsuch information or material to the Company pursuant to a contractual relationship with the Company or otherwise in the course of the\nCompany’s business.\n“Proprietary Information” shall not include any information or material of the type described herein to the extent that such information or\nmaterial is or becomes publicly known through no act on Employee’s part. “Trade Secrets,” as referred herein, include all of the information and\nmaterial described in paragraphs (i), (iii), (v) and (vi) above. The failure to mark any of the Proprietary Information as confidential shall not affect its\nstatus as Proprietary Information or Trade Secrets.\n3. Records:\nAll notes, data, reference material, sketches, drawings, memoranda and records in any way relating to any of the Proprietary Information or to\nthe Company’s business shall belong exclusively to the Company, and at the request of the Company or, absent such a request, upon the termination\nof Employee’s employment with the Company, Employee agrees to turn over to the Company all such materials and copies thereof in Employee’s\npossession.\n4. Injunctive Relief:\nEmployee understands and agrees that the Company shall suffer irreparable harm if Employee breaches any of Employee’s obligations under\nthis Agreement and that monetary damages shall be inadequate to compensate the Company for any breach hereof. Accordingly, Employee agrees\nthat, in addition to any other remedies or rights, the Company shall have the right to obtain an injunction to enforce the terms of this Agreement.\n5. Prior Employer:\nEmployee represents that Employee’s performance as an employee of the Company will not breach any employment agreement nor any\nagreement to keep in confidence any trade secret or confidential or proprietary information of a former employer. Employee has not brought any\ntrade secrets or confidential or proprietary information of a former employer to the Company. Employee will not disclose nor use in the performance\nof Employee’s work with the Company any trade secrets or confidential or proprietary information without authorization from the former employer.\n6. Non-Solicitation:\nUntil one (1) year after the termination of Employee’s employment with the Company, Employee will not solicit or otherwise encourage others\nto leave the Company’s employment.\n7. Non-Competition:\nEmployee recognizes and acknowledges that his services to the Company are of importance to its continued economic success and growth. In\nrecognition of this fact, and in consideration of the employment by the Company and the salary and other compensation and benefits paid therefore,\nthe Employee agrees that he will not, directly or indirectly, during his period of employment and for a period of one (1) year after any termination of\nemployment, invest in, engage in or be associated with, on the Employee’s own behalf or in the service of another, as an employee, consultant,\naffiliate or otherwise in the ownership or operation of, any enterprise that manufactures or sells any product or service that is competitive with any\nproduct or service sold, provided or distributed by the Company on the date hereof or during the Employee’s employment in the Territory (as defined\nbelow). Notwithstanding the foregoing, the Employee may own less than 1% of the outstanding voting stock of a corporation otherwise coming\nwithin the restrictions of the previous sentence, the securities of which are listed on a national securities exchange or are traded in the Nasdaq Stock\nMarket if the Employee does not participate in the management of, perform services for or have any other beneficial interest in, such corporation. In\nthe event this covenant is more restrictive than permitted by applicable law, this covenant shall be limited to the extent permitted by law.\nFor purposes of the foregoing, the Territory shall mean the entire world, including, but not limited to, the states of Alabama, Alaska, Arizona,\nArkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana,\nMaine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New\nMexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota,\nTennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming, the District of Columbia, the countries of India and\nCanada, and the countries within the European Union.\n8. Severance Upon Termination Without Cause:\nIn the event that the Employee’s employment with the Company is terminated by the Company without Cause (as hereinafter defined), the\nEmployee shall be entitled to receive a severance payment equal to (x) the Employee’s then-current base salary for the one-year period\ncommencing on the effective date of such termination without Cause and (y) the Employee’s full bonus for the year in which the termination occurs\n(assuming achievement of 100% of applicable performance targets), payable, in each case, in the same amounts and at the same intervals as the base\nsalary and bonus would have otherwise been paid prior to such termination without Cause.\nFor purposes hereof, the following shall constitute “Cause”: (i) willful malfeasance or willful misconduct by the Employee in connection with\nhis employment, (ii) continuing failure to perform such duties as are requested by the Board of Directors of the Company, (iii) failure by the\nEmployee to observe material policies of the Company applicable to the Employee or (iv) the commission by the Employee of (x) any felony or\n(y) any misdemeanor involving moral turpitude.\n9. Acceleration of Options upon a Change in Control:\nIn the event of a Change in Control (as defined in the Company’s Key Employees’ Stock Option Plan) of the Company, all options to purchase\nClass A Common Stock of the Company then held by the Employee shall immediately vest in full without regard to the vesting provisions thereof\nand shall thereafter be exercisable for the full number of shares of Class A Common Stock subject to such options, subject to all other terms and\nconditions thereof (other than any vesting provisions).\n10. General:\nThis document contains the entire understanding between the Company and the Employee with respect to its subject matter. It may not be\nextended, varied, modified, supplemented or otherwise changed except by a written agreement signed by both the Employee and the Company. A\nwaiver by the Company of any right or provision under this Agreement shall not operate or be construed as a waiver of such right or provision at any\nother time. If a court finds a portion of this Agreement unenforceable, such findings shall not affect enforcement of the other portions of this\nAgreement. Any portion found to be unenforceable shall be construed to be reformed to extend as far as is enforceable. This Agreement shall inure\nto the benefits of and may be enforced by the successors and assigns of the Company. This agreement is entered into under the laws of the State of\nNew York and shall be governed by the laws of such State, excluding its conflicts of laws rules.\nI have read, understood and agree to the above terms and conditions.\nRAJEEV MEHTA\nSignature\n/s/ Rajeev Mehta\nName:\nRajeev Mehta\nDate:\nJuly 23, 2007\nAGREED AND ACCEPTED:\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nBy:\n/s/ Steven Schwartz	EX-10.1 2 dex101.htm SEVERANCE AND NONCOMPETITION AGREEMENT WITH RAJEEV MEHTA\nExhibit 10.1\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nSEVERANCE AND NONCOMPETITION AGREEMENT\nIn consideration of the employment of the undersigned (“Employee”), Cognizant Technology Solutions Corporation, including any of its\naffiliates or direct or indirect subsidiaries (collectively, the “Company”), and as a condition of continued Employment, Employee agrees as follows:\n1. Ownership and Non-disclosure of Proprietary Information:\nThe Employee acknowledges that all Proprietary Information, as defined below, is the exclusive property of the Company or the party that disclosed\nor delivered the same to the Company. Specifically, Employee agrees that all Proprietary Information developed as a direct or indirect result of\nEmployee’s efforts during any period of employment with the Company shall be and shall remain the exclusive property of the Company, and the\nEmployee shall have no ownership interest therein. To the extent Employee may have any interest in such developed Proprietary Information,\nEmployee assigns such interest to the Company.\nTo the extent a copyright may be obtained in any Proprietary Information, (i) that copyright shall be considered the property of the Company,\n(ii) the Proprietary Information shall be “works made for hire” under the Copyright Act of 1976 (the “Copyright Act”), the copyright for those works\nshall be the sole property of the Company and the Company shall be the sole author of such works within the meaning of the Copyright Act,\n(iii) Employee hereby assigns to the Company any of his rights to any such copyrightable material and (iv) Employee expressly disclaims any and all\ninterest he may have in the works. In the event that the copyright to any work may not be the property of the Company by operation of law,\nEmployee irrevocably assigns to the Company all right, title and interest in the work, including all so-called “moral rights.” If the moral rights\ncannot be assigned under the laws of a country where such rights exist, Employee hereby waives all of his moral rights and consents to any action of\nthe Company that would violate such rights in the absence of such consent.\nWhile employed by the Company and for a period of three (3) years thereafter, Employee shall not use or disclose any Proprietary Information,\ndirectly or indirectly, except as authorized by the Company in connection with Employee’s assigned duties. The foregoing notwithstanding,\nEmployee shall not at any time use or disclose, directly or indirectly, any of the Proprietary Information constituting Trade Secrets of the Company,\nas defined below, except as authorized by the Company in connection with Employee’s assigned duties.\n2. Definitions:\n“Proprietary Information,” as referred to herein, includes all of the following information and material, whether or not reduced to writing and\nwhether or not patentable, that Employee during any period of employment with the Company has access to or develops in whole or in part as a\ndirect or indirect result of such employment or through the use of any of the Company’s facilities or resources:\n(i) application, operating system, communication and other computer software, including, without limitation, all source and object code,\nflow charts, algorithms, coding sheets, routines, sub-routines, compilers, assemblers, design concepts and related documentation and\nmanuals;\n(ii) production processes, marketing techniques, purchasing information, fee lists, licensing policies, quoting procedures, financial\ninformation, employee names and job descriptions, customer and prospective customer names and requirements, data and other\ninformation or material relating to the manner in which any customer, prospective customer or the Company does business;\n(iii) discoveries, concepts and ideas (including, but not limited to, the nature and results of research and development activities),\nprocesses, formulae, techniques, “know-how,” designs, drawings and specifications;\n(iv) any other information or material relating to the business or activities of the Company which is not generally known to others\nengaged in similar businesses or activities;\n(v) all inventions and ideas which are derived from or relate to Employee’s access to or knowledge of any of the information or material\ndescribed herein; and\n(vi) any of the information or material described herein which is the property of any other person or firm which has revealed or delivered\nsuch information or material to the Company pursuant to a contractual relationship with the Company or otherwise in the course of the\nCompany’s business.\n“Proprietary Information” shall not include any information or material of the type described herein to the extent that such information or\nmaterial is or becomes publicly known through no act on Employee’s part. “Trade Secrets,” as referred herein, include all of the information and\nmaterial described in paragraphs (i), (iii), (v) and (vi) above. The failure to mark any of the Proprietary Information as confidential shall not affect its\nstatus as Proprietary Information or Trade Secrets.\n3. Records:\nAll notes, data, reference material, sketches, drawings, memoranda and records in any way relating to any of the Proprietary Information or to\nthe Company’s business shall belong exclusively to the Company, and at the request of the Company or, absent such a request, upon the termination\nof Employee’s employment with the Company, Employee agrees to turn over to the Company all such materials and copies thereof in Employee’s\npossession.\n4.  Injunctive Relief:\nEmployee understands and agrees that the Company shall suffer irreparable harm if Employee breaches any of Employee’s obligations under\nthis Agreement and that monetary damages shall be inadequate to compensate the Company for any breach hereof. Accordingly, Employee agrees\nthat, in addition to any other remedies or rights, the Company shall have the right to obtain an injunction to enforce the terms of this Agreement.\n5. Prior Employer:\nEmployee represents that Employee’s performance as an employee of the Company will not breach any employment agreement nor any\nagreement to keep in confidence any trade secret or confidential or proprietary information of a former employer. Employee has not brought any\ntrade secrets or confidential or proprietary information of a former employer to the Company. Employee will not disclose nor use in the performance\nof Employee’s work with the Company any trade secrets or confidential or proprietary information without authorization from the former employer.\n6. Non-Solicitation:\nUntil one (1) year after the termination of Employee’s employment with the Company, Employee will not solicit or otherwise encourage others\nto leave the Company’s employment.\n7.  Non-Competition:\nEmployee recognizes and acknowledges that his services to the Company are of importance to its continued economic success and growth. In\nrecognition of this fact, and in consideration of the employment by the Company and the salary and other compensation and benefits paid therefore,\nthe Employee agrees that he will not, directly or indirectly, during his period of employment and for a period of one (1) year after any termination of\nemployment, invest in, engage in or be associated with, on the Employee’s own behalf or in the service of another, as an employee, consultant,\naffiliate or otherwise in the ownership or operation of, any enterprise that manufactures or sells any product or service that is competitive with any\nproduct or service sold, provided or distributed by the Company on the date hereof or during the Employee’s employment in the Territory (as defined\nbelow). Notwithstanding the foregoing, the Employee may own less than 1% of the outstanding voting stock of a corporation otherwise coming\nwithin the restrictions of the previous sentence, the securities of which are listed on a national securities exchange or are traded in the Nasdaq Stock\nMarket if the Employee does not participate in the management of, perform services for or have any other beneficial interest in, such corporation. In\nthe event this covenant is more restrictive than permitted by applicable law, this covenant shall be limited to the extent permitted by law.\nFor purposes of the foregoing, the Territory shall mean the entire world, including, but not limited to, the states of Alabama, Alaska, Arizona,\nArkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana,\nMaine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New\nMexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota,\nTennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming, the District of Columbia, the countries of India and\nCanada, and the countries within the European Union.\n8.  Severance Upon Termination Without Cause:\nIn the event that the Employee’s employment with the Company is terminated by the Company without Cause (as hereinafter defined), the\nEmployee shall be entitled to receive a severance payment equal to (x) the Employee’s then-current base salary for the one-year period\ncommencing on the effective date of such termination without Cause and (y) the Employee’s full bonus for the year in which the termination occurs\n(assuming achievement of 100% of applicable performance targets), payable, in each case, in the same amounts and at the same intervals as the base\nsalary and bonus would have otherwise been paid prior to such termination without Cause.\nFor purposes hereof, the following shall constitute “Cause”: (i) willful malfeasance or willful misconduct by the Employee in connection with\nhis employment, (ii) continuing failure to perform such duties as are requested by the Board of Directors of the Company, (iii) failure by the\nEmployee to observe material policies of the Company applicable to the Employee or (iv) the commission by the Employee of (x) any felony or\n(v) any misdemeanor involving moral turpitude.\n9.  Acceleration of Options upon a Change in Control:\nIn the event of a Change in Control (as defined in the Company’s Key Employees’ Stock Option Plan) of the Company, all options to purchase\nClass A Common Stock of the Company then held by the Employee shall immediately vest in full without regard to the vesting provisions thereof\nand shall thereafter be exercisable for the full number of shares of Class A Common Stock subject to such options, subject to all other terms and\nconditions thereof (other than any vesting provisions).\n10. General:\nThis document contains the entire understanding between the Company and the Employee with respect to its subject matter. It may not be\nextended, varied, modified, supplemented or otherwise changed except by a written agreement signed by both the Employee and the Company. A\nwaiver by the Company of any right or provision under this Agreement shall not operate or be construed as a waiver of such right or provision at any\nother time. If a court finds a portion of this Agreement unenforceable, such findings shall not affect enforcement of the other portions of this\nAgreement. Any portion found to be unenforceable shall be construed to be reformed to extend as far as is enforceable. This Agreement shall inure\nto the benefits of and may be enforced by the successors and assigns of the Company. This agreement is entered into under the laws of the State of\nNew York and shall be governed by the laws of such State, excluding its conflicts of laws rules.\nI have read, understood and agree to the above terms and conditions.\nRAJEEV MEHTA\nSignature\n/s/ Rajeev Mehta\nName:\nRajeev Mehta\nDate:\nJuly 23, 2007\n \nAGREED AND ACCEPTED:\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nBy:\n/s/ Steven Schwartz	EX-10.1 2 dex101.htm SEVERANCE AND NONCOMPETITION AGREEMENT WITH RAJEEV MEHTA\nExhibit 10.1\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nSEVERANCE AND NONCOMPETITION AGREEMENT\nIn consideration of the employment of the undersigned ("Employee"), Cognizant Technology Solutions Corporation, including any of its\naffiliates or direct or indirect subsidiaries (collectively, the "Company"), and as a condition of continued Employment, Employee agrees as follows:\n1.\nOwnership and Non-disclosure of Proprietary Information:\nThe Employee acknowledges that all Proprietary Information, as defined below, is the exclusive property of the Company or the party that disclosed\nor delivered the same to the Company. Specifically, Employee agrees that all Proprietary Information developed as a direct or indirect result of\nEmployee's efforts during any period of employment with the Company shall be and shall remain the exclusive property of the Company, and the\nEmployee shall have no ownership interest therein. To the extent Employee may have any interest in such developed Proprietary Information,\nEmployee assigns such interest to the Company.\nTo the extent a copyright may be obtained in any Proprietary Information, (i) that copyright shall be considered the property of the Company,\n(ii) the Proprietary Information shall be "works made for hire" under the Copyright Act of 1976 (the "Copyright Act"), the copyright for those works\nshall be the sole property of the Company and the Company shall be the sole author of such works within the meaning of the Copyright Act,\n(iii) Employee hereby assigns to the Company any of his rights to any such copyrightable material and (iv) Employee expressly disclaims any and all\ninterest he may have in the works. In the event that the copyright to any work may not be the property of the Company by operation of law,\nEmployee irrevocably assigns to the Company all right, title and interest in the work, including all so-called "moral rights." If the moral rights\ncannot be assigned under the laws of a country where such rights exist, Employee hereby waives all of his moral rights and consents to any action\nof\nthe Company that would violate such rights in the absence of such consent.\nWhile employed by the Company and for a period of three (3) years thereafter, Employee shall not use or disclose any Proprietary Information,\ndirectly or indirectly, except as authorized by the Company in connection with Employee's assigned duties. The foregoing notwithstanding,\nEmployee shall not at any time use or disclose, directly or indirectly, any of the Proprietary Information constituting Trade Secrets of the Company,\nas defined below, except as authorized by the Company in connection with Employee's assigned duties.\n2. Definitions:\n"Proprietary Information," as referred to herein, includes all of the following information and material, whether or not reduced to writing and\nwhether or not patentable, that Employee during any period of employment with the Company has access to or develops in whole or in part as a\ndirect or indirect result of such employment or through the use of any of the Company's facilities or resources:\n(i) application, operating system, communication and other computer software, including, without limitation, all source and object code,\nflow charts, algorithms, coding sheets, routines, sub-routines, compilers, assemblers, design concepts and related documentation and\nmanuals;\n(ii) production processes, marketing techniques, purchasing information, fee lists, licensing policies, quoting procedures, financial\ninformation, employee names and job descriptions, customer and prospective customer names and requirements, data and other\ninformation or material relating to the manner in which any customer, prospective customer or the Company does business;\n(iii) discoveries, concepts and ideas (including, but not limited to, the nature and results of research and development activities),\nprocesses, formulae, techniques, "know-how," designs, drawings and specifications;\n(iv) any other information or material relating to the business or activities of the Company which is not generally known to others\nengaged in similar businesses or activities;\n(v)\nall inventions and ideas which are derived from or relate to Employee's access to or knowledge of any of the information or material\ndescribed herein; and\n(vi) any of the information or material described herein which is the property of any other person or firm which has revealed or delivered\nsuch information or material to the Company pursuant to a contractual relationship with the Company or otherwise in the course of the\nCompany's business.\n"Proprietary Information" shall not include any information or material of the type described herein to the extent that such information or\nmaterial is or becomes publicly known through no act on Employee's part. "Trade Secrets," as referred herein, include all of the information and\nmaterial described in paragraphs (i), (iii), (v) and (vi) above. The failure to mark any of the Proprietary Information as confidential shall not affect its\nstatus as Proprietary Information or Trade Secrets.\n3. Records:\nAll notes, data, reference material, sketches, drawings, memoranda and records in any way relating to any of the Proprietary Information or to\nthe Company's business shall belong exclusively to the Company, and at the request of the Company or, absent such a request, upon the termination\nof Employee's employment with the Company, Employee agrees to turn over to the Company all such materials and copies thereof in Employee's\npossession.\n4.\nInjunctive Relief:\nEmployee understands and agrees that the Company shall suffer irreparable harm if Employee breaches any of Employee's obligations under\nthis Agreement and that monetary damages shall be inadequate to compensate the Company for any breach hereof. Accordingly, Employee agrees\nthat, in addition to any other remedies or rights, the Company shall have the right to obtain an injunction to enforce the terms of this Agreement.\n5.\nPrior Employer:\nEmployee represents that Employee's performance as an employee of the Company will not breach any employment agreement nor any\nagreement to keep in confidence any trade secret or confidential or proprietary information of a former employer. Employee has not brought any\ntrade secrets or confidential or proprietary information of a former employer to the Company. Employee will not disclose nor use in the performance\nof Employee's work with the Company any trade secrets or confidential or proprietary information without authorization from the former employer.\n6. Non-Solicitation:\nUntil one (1) year after the termination of Employee's employment with the Company, Employee will not solicit or otherwise encourage others\nto leave the Company's employment.\n7. Non-Competition:\nEmployee recognizes and acknowledges that his services to the Company are of importance to its continued economic success and growth. In\nrecognition of this fact, and in consideration of the employment by the Company and the salary and other compensation and benefits paid therefore,\nthe Employee agrees that he will not, directly or indirectly, during his period of employment and for a period of one (1) year after any termination of\nemployment, invest in, engage in or be associated with, on the Employee's own behalf or in the service of another, as an employee, consultant,\naffiliate or otherwise in the ownership or operation of, any enterprise that manufactures or sells any product or service that is competitive with\nany\nproduct or service sold, provided or distributed by the Company on the date hereof or during the Employee's employment in the Territory (as defined\nbelow). Notwithstanding the foregoing, the Employee may own less than 1% of the outstanding voting stock of a corporation otherwise coming\nwithin the restrictions of the previous sentence, the securities of which are listed on a national securities exchange or are traded in the Nasdaq Stock\nMarket if the Employee does not participate in the management of, perform services for or have any other beneficial interest in, such corporation. In\nthe event this covenant is more restrictive than permitted by applicable law, this covenant shall be limited to the extent permitted by law.\nFor purposes of the foregoing, the Territory shall mean the entire world, including, but not limited to, the states of Alabama, Alaska, Arizona,\nArkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana,\nMaine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New\nMexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota,\nTennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming, the District of Columbia, the countries of India\nand\nCanada, and the countries within the European Union.\n8.\nSeverance Upon Termination Without Cause:\nIn the event that the Employee's employment with the Company is terminated by the Company without Cause (as hereinafter defined), the\nEmployee shall be entitled to receive a severance payment equal to (x) the Employee's then-current base salary for the one-year period\ncommencing on the effective date of such termination without Cause and (y) the Employee's full bonus for the year in which the termination occurs\n(assuming achievement of 100% of applicable performance targets), payable, in each case, in the same amounts and at the same intervals as the base\nsalary and bonus would have otherwise been paid prior to such termination without Cause.\nFor purposes hereof, the following shall constitute "Cause": (i) willful malfeasance or willful misconduct by the Employee in connection with\nhis\nemployment, (ii) continuing failure to perform such duties as are requested by the Board of Directors of the Company, (iii) failure by the\nEmployee to observe material policies of the Company applicable to the Employee or (iv) the commission by the Employee of (x) any felony or\n(y) any misdemeanor involving moral turpitude.\n9.\nAcceleration of Options upon a Change in Control:\nIn\nthe event of a Change in Control (as defined in the Company's Key Employees' Stock Option Plan) of the Company, all options to purchase\nClass A Common Stock of the Company then held by the Employee shall immediately vest in full without regard to the vesting provisions thereof\nand shall thereafter be exercisable for the full number of shares of Class A Common Stock subject to such options, subject to all other terms and\nconditions thereof (other than any vesting provisions).\n10. General:\nThis document contains the entire understanding between the Company and the Employee with respect to its subject matter. It may not\nbe\nextended, varied, modified, supplemented or otherwise changed except by a written agreement signed by both the Employee and the Company. A\nwaiver by the Company of any right or provision under this Agreement shall not operate or be construed as a waiver of such right or provision at any\nother time. If a court finds a portion of this Agreement unenforceable, such findings shall not affect enforcement of the other portions of this\nAgreement. Any portion found to be unenforceable shall be construed to be reformed to extend as far as is enforceable. This Agreement shall inure\nto the benefits of and may be enforced by the successors and assigns of the Company. This agreement is entered into under the laws of the State of\nNew York and shall be governed by the laws of such State, excluding its conflicts of laws rules.\nI have read, understood and agree to the above terms and conditions.\nRAJEEV MEHTA\nSignature\n/s/ Rajeev Mehta\nName:\nRajeev Mehta\nDate:\nJuly 23, 2007\nAGREED AND ACCEPTED:\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nBy:\n/s/ Steven Schwartz	EX-10.1 2 dex101.htm SEVERANCE AND NONCOMPETITION AGREEMENT WITH RAJEEV MEHTA\nExhibit 10.1\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nSEVERANCE AND NONCOMPETITION AGREEMENT\nIn consideration of the employment of the undersigned (“Employee”), Cognizant Technology Solutions Corporation, including any of its\naffiliates or direct or indirect subsidiaries (collectively, the “Company”), and as a condition of continued Employment, Employee agrees as follows:\n1. Ownership and Non-disclosure of Proprietary Information:\nThe Employee acknowledges that all Proprietary Information, as defined below, is the exclusive property of the Company or the party that disclosed\nor delivered the same to the Company. Specifically, Employee agrees that all Proprietary Information developed as a direct or indirect result of\nEmployee’s efforts during any period of employment with the Company shall be and shall remain the exclusive property of the Company, and the\nEmployee shall have no ownership interest therein. To the extent Employee may have any interest in such developed Proprietary Information,\nEmployee assigns such interest to the Company.\nTo the extent a copyright may be obtained in any Proprietary Information, (i) that copyright shall be considered the property of the Company,\n(ii) the Proprietary Information shall be “works made for hire” under the Copyright Act of 1976 (the “Copyright Act”), the copyright for those works\nshall be the sole property of the Company and the Company shall be the sole author of such works within the meaning of the Copyright Act,\n(iii) Employee hereby assigns to the Company any of his rights to any such copyrightable material and (iv) Employee expressly disclaims any and all\ninterest he may have in the works. In the event that the copyright to any work may not be the property of the Company by operation of law,\nEmployee irrevocably assigns to the Company all right, title and interest in the work, including all so-called “moral rights.” If the moral rights\ncannot be assigned under the laws of a country where such rights exist, Employee hereby waives all of his moral rights and consents to any action of\nthe Company that would violate such rights in the absence of such consent.\nWhile employed by the Company and for a period of three (3) years thereafter, Employee shall not use or disclose any Proprietary Information,\ndirectly or indirectly, except as authorized by the Company in connection with Employee’s assigned duties. The foregoing notwithstanding,\nEmployee shall not at any time use or disclose, directly or indirectly, any of the Proprietary Information constituting Trade Secrets of the Company,\nas defined below, except as authorized by the Company in connection with Employee’s assigned duties.\n2. Definitions:\n“Proprietary Information,” as referred to herein, includes all of the following information and material, whether or not reduced to writing and\nwhether or not patentable, that Employee during any period of employment with the Company has access to or develops in whole or in part as a\ndirect or indirect result of such employment or through the use of any of the Company’s facilities or resources:\n(i) application, operating system, communication and other computer software, including, without limitation, all source and object code,\nflow charts, algorithms, coding sheets, routines, sub-routines, compilers, assemblers, design concepts and related documentation and\nmanuals;\n(ii) production processes, marketing techniques, purchasing information, fee lists, licensing policies, quoting procedures, financial\ninformation, employee names and job descriptions, customer and prospective customer names and requirements, data and other\ninformation or material relating to the manner in which any customer, prospective customer or the Company does business;\n(iii) discoveries, concepts and ideas (including, but not limited to, the nature and results of research and development activities),\nprocesses, formulae, techniques, “know-how,” designs, drawings and specifications;\n(iv) any other information or material relating to the business or activities of the Company which is not generally known to others\nengaged in similar businesses or activities;\n(v) all inventions and ideas which are derived from or relate to Employee’s access to or knowledge of any of the information or material\ndescribed herein; and\n(vi) any of the information or material described herein which is the property of any other person or firm which has revealed or delivered\nsuch information or material to the Company pursuant to a contractual relationship with the Company or otherwise in the course of the\nCompany’s business.\n“Proprietary Information” shall not include any information or material of the type described herein to the extent that such information or\nmaterial is or becomes publicly known through no act on Employee’s part. “Trade Secrets,” as referred herein, include all of the information and\nmaterial described in paragraphs (i), (iii), (v) and (vi) above. The failure to mark any of the Proprietary Information as confidential shall not affect its\nstatus as Proprietary Information or Trade Secrets.\n3. Records:\nAll notes, data, reference material, sketches, drawings, memoranda and records in any way relating to any of the Proprietary Information or to\nthe Company’s business shall belong exclusively to the Company, and at the request of the Company or, absent such a request, upon the termination\nof Employee’s employment with the Company, Employee agrees to turn over to the Company all such materials and copies thereof in Employee’s\npossession.\n4. Injunctive Relief:\nEmployee understands and agrees that the Company shall suffer irreparable harm if Employee breaches any of Employee’s obligations under\nthis Agreement and that monetary damages shall be inadequate to compensate the Company for any breach hereof. Accordingly, Employee agrees\nthat, in addition to any other remedies or rights, the Company shall have the right to obtain an injunction to enforce the terms of this Agreement.\n5. Prior Employer:\nEmployee represents that Employee’s performance as an employee of the Company will not breach any employment agreement nor any\nagreement to keep in confidence any trade secret or confidential or proprietary information of a former employer. Employee has not brought any\ntrade secrets or confidential or proprietary information of a former employer to the Company. Employee will not disclose nor use in the performance\nof Employee’s work with the Company any trade secrets or confidential or proprietary information without authorization from the former employer.\n6. Non-Solicitation:\nUntil one (1) year after the termination of Employee’s employment with the Company, Employee will not solicit or otherwise encourage others\nto leave the Company’s employment.\n7. Non-Competition:\nEmployee recognizes and acknowledges that his services to the Company are of importance to its continued economic success and growth. In\nrecognition of this fact, and in consideration of the employment by the Company and the salary and other compensation and benefits paid therefore,\nthe Employee agrees that he will not, directly or indirectly, during his period of employment and for a period of one (1) year after any termination of\nemployment, invest in, engage in or be associated with, on the Employee’s own behalf or in the service of another, as an employee, consultant,\naffiliate or otherwise in the ownership or operation of, any enterprise that manufactures or sells any product or service that is competitive with any\nproduct or service sold, provided or distributed by the Company on the date hereof or during the Employee’s employment in the Territory (as defined\nbelow). Notwithstanding the foregoing, the Employee may own less than 1% of the outstanding voting stock of a corporation otherwise coming\nwithin the restrictions of the previous sentence, the securities of which are listed on a national securities exchange or are traded in the Nasdaq Stock\nMarket if the Employee does not participate in the management of, perform services for or have any other beneficial interest in, such corporation. In\nthe event this covenant is more restrictive than permitted by applicable law, this covenant shall be limited to the extent permitted by law.\nFor purposes of the foregoing, the Territory shall mean the entire world, including, but not limited to, the states of Alabama, Alaska, Arizona,\nArkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana,\nMaine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New\nMexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota,\nTennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming, the District of Columbia, the countries of India and\nCanada, and the countries within the European Union.\n8. Severance Upon Termination Without Cause:\nIn the event that the Employee’s employment with the Company is terminated by the Company without Cause (as hereinafter defined), the\nEmployee shall be entitled to receive a severance payment equal to (x) the Employee’s then-current base salary for the one-year period\ncommencing on the effective date of such termination without Cause and (y) the Employee’s full bonus for the year in which the termination occurs\n(assuming achievement of 100% of applicable performance targets), payable, in each case, in the same amounts and at the same intervals as the base\nsalary and bonus would have otherwise been paid prior to such termination without Cause.\nFor purposes hereof, the following shall constitute “Cause”: (i) willful malfeasance or willful misconduct by the Employee in connection with\nhis employment, (ii) continuing failure to perform such duties as are requested by the Board of Directors of the Company, (iii) failure by the\nEmployee to observe material policies of the Company applicable to the Employee or (iv) the commission by the Employee of (x) any felony or\n(y) any misdemeanor involving moral turpitude.\n9. Acceleration of Options upon a Change in Control:\nIn the event of a Change in Control (as defined in the Company’s Key Employees’ Stock Option Plan) of the Company, all options to purchase\nClass A Common Stock of the Company then held by the Employee shall immediately vest in full without regard to the vesting provisions thereof\nand shall thereafter be exercisable for the full number of shares of Class A Common Stock subject to such options, subject to all other terms and\nconditions thereof (other than any vesting provisions).\n10. General:\nThis document contains the entire understanding between the Company and the Employee with respect to its subject matter. It may not be\nextended, varied, modified, supplemented or otherwise changed except by a written agreement signed by both the Employee and the Company. A\nwaiver by the Company of any right or provision under this Agreement shall not operate or be construed as a waiver of such right or provision at any\nother time. If a court finds a portion of this Agreement unenforceable, such findings shall not affect enforcement of the other portions of this\nAgreement. Any portion found to be unenforceable shall be construed to be reformed to extend as far as is enforceable. This Agreement shall inure\nto the benefits of and may be enforced by the successors and assigns of the Company. This agreement is entered into under the laws of the State of\nNew York and shall be governed by the laws of such State, excluding its conflicts of laws rules.\nI have read, understood and agree to the above terms and conditions.\nRAJEEV MEHTA\nSignature\n/s/ Rajeev Mehta\nName:\nRajeev Mehta\nDate:\nJuly 23, 2007\nAGREED AND ACCEPTED:\nCOGNIZANT TECHNOLOGY SOLUTIONS CORPORATION\nBy:\n/s/ Steven Schwartz
+b9d85575953a301d1581e4cfad80409a.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit (d)(3)\nPERSONAL AND CONFIDENTIAL\nFebruary 3, 2009\nTyco Healthcare Group LP,\nd/b/a Covidien\n15 Hampshire Street\nMansfield, MA 02048\nRe: CONFIDENTIALITY AND STANDSTILL AGREEMENT\nDear Sirs:\nIn connection with your consideration of a possible negotiated business combination transaction (a “Transaction”) with VNUS Medical\nTechnologies, Inc. and/or its subsidiaries (collectively, the “Company”), you have requested certain confidential and other information concerning\nthe Company.\nYou agree to treat any information furnished to you or your Representatives (as defined below) by or on behalf of the Company on or after the\ndate of this agreement concerning the Company or the business, products, markets, condition (financial or other) operations, assets, liabilities, results\nof operations, cash flows or prospects of the Company (whether prepared by the Company, its advisors or otherwise), whether written or unwritten,\ntogether with any and all analyses or other documents prepared by you or any of your directors, officers, employees, advisors, attorneys, accountants,\nconsultants, agents, representatives or lending institutions (and their respective counsel) (collectively, “Representatives”) which contain or otherwise\nreflect such information (collectively, “Evaluation Material”), in accordance with this agreement. The term “Evaluation Material” does not include\ninformation which (a) was already in your or any of your Representatives’ possession prior to the time of disclosure to you by or on behalf of the\nCompany, provided that the source of such information was not and is not known by you or any such Representative, as the case may be, to be bound\nby any contractual or other obligation of confidentiality to the Company or any other person with respect to any of such information, (b) was or\nbecomes generally available to the public other than as a result of a disclosure by you or your Representatives, (c) becomes available to you or any\nof your Representatives on a non-confidential basis from a source other than the Company, provided that such source is not known by you or any\nsuch Representative, as the case may be, to be bound by any contractual or other obligation of confidentiality to the Company or any other person\nwith respect to such information or (d) is independently developed by or for you without using the Evaluation Material.\nThe Evaluation Material will be used by you (and you shall cause your Representatives to use the Evaluation Material) solely for the purpose\nof evaluating a Transaction between the Company and you, and will be kept confidential by you (and you shall cause your Representatives to keep\nthe Evaluation Material confidential), except to the extent that disclosure (a) has been consented to in writing by the Company prior to any\ndisclosure, (b) is required by law or other applicable judicial or governmental order, or (c) is made to your Representatives who need to know such\ninformation for the purpose of evaluating the Transaction (it being understood that such Representatives shall be informed by you of the confidential\nnature of the Evaluation Material). In any event, you agree to undertake commercially reasonable precautions to safeguard and protect the\nconfidentiality of the Evaluation Material and to accept responsibility for any use or disclosure of Evaluation Material by you or your\nRepresentatives that would constitute a breach of this agreement.\nIn addition, without the prior written consent of the other party hereto, neither party will, and each party will direct its respective\nRepresentatives not to, disclose to any other person (a) that the Evaluation Material has been made available to you or your Representatives, (b) that\ninvestigations, discussions or negotiations are taking place concerning a Transaction, or (c) any terms, conditions or other facts with respect to any\nTransaction, including the status thereof and the identity of the parties thereto (collectively, the “Discussion Information”).\nWithout limiting the generality of the foregoing, you further agree that, without the prior written consent of the Company, you and your\nRepresentatives will not, directly or indirectly, consult or share Evaluation Material or Discussion Information with, or enter into any agreement,\narrangement or understanding, or any discussions which might lead to any such agreement, arrangement or understanding, with any co-investor,\nsource of equity financing or other person (other than the Company) regarding a Possible Transaction, including, without limitation, discussions or\nother communications with any prospective bidder for the Company with respect to (i) whether or not you or such other prospective bidder will\nmake a bid or offer for the Company or (ii) the price that you or such other bidder may bid or offer for the Company. The term “person” as used in\nthis letter agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity.\nIn the event that you or any of your Representatives are requested or required by judicial, legislative or regulatory process to disclose any\nEvaluation Material or Discussion Information, you will provide the Company with prompt notice of any such request or requirement so that the\nCompany may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this agreement. In the event that such\nprotective order or other remedy is not obtained, or that the Company waives compliance with the terms hereof, you may disclose only that portion\nof the Evaluation Material or Discussion Information that is legally required to be disclosed and shall exercise reasonable efforts to obtain assurances\nthat confidential treatment will be accorded to such Evaluation Material or Discussion Information. Likewise, in the event that the Company or any\nof its Representatives is requested or required by judicial, legislative or regulatory process to disclose any of the Discussion Information, it will\nprovide you with prompt notice of any such request or requirement so that you may seek a protective order or other appropriate remedy and/or waive\ncompliance with the terms of this agreement. In the event that such protective order or other remedy is not obtained, or that you waive compliance\nwith the terms hereof, the Company may disclose only that portion of the Discussion Information that is legally required to be disclosed.\nIt is understood and agreed that money damages would not be a sufficient remedy for any breach of this agreement, and that the Company is\nthus entitled to seek specific performance and injunctive or other equitable relief. Such remedy shall not be deemed to be the exclusive remedy for\nbreach of this agreement, but shall be in addition to all other remedies available at law or equity to the Company against the breach or threatened\nbreach of this agreement or the continuation of any such breach, without the necessity of proving actual damages.\nThe Company shall not be deemed to have made any representations or warranties, express or implied, as to the accuracy or completeness of\nthe Evaluation Material, and neither the Company nor its Representatives will have any liability to you or to any of your Representatives relating to\nor resulting from the use of any of the Evaluation Material or any accuracies or errors therein or omissions therefrom. Only those representations or\nwarranties which are made by the Company in a final written definitive agreement providing for the consummation of a Transaction, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nAs soon as practicable but in no event more than 10 business days after being so requested by the Company, except to the extent you are\nadvised by legal counsel that complying with such request would be prohibited by law, you will return to the Company, at your expense, or destroy\nall Evaluation Material in your possession or any of your Representatives. Any destruction of Evaluation Material shall be confirmed by you in\nwriting. With regard to destruction of Evaluation Materials in electronic form, you and your Representatives shall be required to perform customary\n“delete” functions made available by the software vendor for use by the end-user of the relevant software, but neither you nor your Representatives\nshall be required to delete all electronic copies that may be available, for example in backups or archives, or which are retrievable using forensic\ncomputer recovery techniques. Any Evaluation Material that can not be returned or destroyed (such as oral Evaluation Material)\nCONFIDENTIAL\nFebruary 3, 2009\n2\nshall remain confidential, subject to the terms of this agreement. Notwithstanding the foregoing, your Representatives that are accounting firms or\nfinancial institutions may retain solely for compliance purposes copies of the Evaluation Material in accordance with policies and procedures\nimplemented by such persons or to comply with law, regulation or professional standards; provided, however, that any Evaluation Material so\nretained will continue to be held confidential pursuant to the terms of this Agreement. Notwithstanding the delivery to the Company of Evaluation\nMaterial pursuant to this paragraph, you and your Representatives will continue to be bound by the confidentiality obligations and other obligations\nthrough the expiration of the term of this agreement.\nThis agreement binds the parties only with respect to the matters expressly set forth herein. As such, unless and until a subsequent definitive\nwritten agreement regarding a Transaction between the Company and you has been executed, (a) neither the Company nor you will be under any\nlegal obligation of any kind whatsoever to negotiate or consummate a Transaction, (b) you shall have no claim whatsoever against the Company or\nany of its Representatives arising out of or relating to any Transaction and (c) the Company will be free to negotiate with, or enter into any\nagreement or transaction with, any other interested party with respect to a Transaction.\nAdditionally, you agree not to (and shall cause your affiliates not to) solicit for employment any employee of the Company (a) with whom you\nor any of your Representatives has had direct contact or (b) who is listed on Exhibit A attached to this agreement, for a period of one year after the\ndate of this agreement, provided that you shall not be restricted in any general solicitation for employees (including through the use of employment\nagencies or advertisements in the media) not specifically directed at any such persons, and provided further that you shall not be restricted in hiring\nany such person (i) who responds to any such general solicitation, (ii) who solicits you for employment, (iii) who you can establish by reasonable\nproof began employment discussions with you prior to the date of this agreement or (iv) whose employment has been terminated by the Company.\nYou agree that for a period from the date of this agreement until the earlier of (a) the first anniversary of the date of this letter agreement, or\n(b) the occurrence of a Significant Event (as defined below) (the “Standstill Period”), unless specifically invited to do so by the Company, neither\nyou nor any of your affiliates will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of the Company or any\nsecurities of any subsidiary of the Company, (ii) any acquisition of any assets of the Company or any assets of any subsidiary of the Company,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation or dissolution involving the\nCompany or any subsidiary of the Company, or involving any securities or assets of the Company or any securities or assets of any subsidiary\nof the Company, or any other transaction seeking control of the Company or any subsidiary of the Company or their respective voting\nsecurities or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents with respect to any securities of the Company;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of the Company;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of the Company;\n(d) take any action that could reasonably be expected to require the Company to make a public announcement regarding any of the types\nof matters set forth in clause “(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)”\nor “(d)” of this sentence;\nCONFIDENTIAL\nFebruary 3, 2009\n3\n(f) assist, induce or encourage any other Person to take any action “(a)”, “(b)”, “(c)” or “(d)” or “(e)” of this sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other person relating to or any of the foregoing; or\n(h) request or propose that the Company or any of the Company’s Representatives amend, waive or consider the amendment or waiver of\nany provision set forth in this paragraph.\nA “Significant Event” shall mean the Company enters into any merger, sale or other business combination transaction pursuant to which the\noutstanding shares of common stock of the Company (the “Common Stock”) would be converted into cash or securities of another person or 13D\nGroup (as defined below) or 50% or more of the then outstanding shares of Common Stock would be owned by persons other than current holders of\nshares of Common Stock, or which would result in all or a substantial portion of the Company’s assets being sold to any person or 13D Group. “13D\nGroup” shall mean any group of persons formed for the purpose of acquiring, holding, voting or disposing of Voting Securities (as defined below)\nthat would be required under Section 13(d) of the Exchange Act and the rules and regulations thereunder to file a statement on Schedule 13D with\nthe SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act. “Voting Securities” shall mean at any time shares of any class of\ncapital stock of the Company that are then entitled to vote generally in the election of directors; provided that for purposes of this definition any\nsecurities that at such time are convertible or exchangeable into or exercisable for shares of Common Stock shall be deemed to have been so\nconverted, exchanged or exercised.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.\nThis agreement shall be governed by the internal laws of the State of Delaware, without regard to conflict of laws principles. This agreement\nmay be amended only in a writing signed by the Company and you. No failure or delay by the Company in exercising any right hereunder or any\npartial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any right hereunder.\nExcept as otherwise expressly provided herein, your obligations under this agreement shall remain in effect for a period of two years from the\ndate hereof, unless and until this agreement is terminated by the Company or is superseded by another agreement with you that concerns your use of\nthe Evaluation Material.\nPlease confirm that the foregoing is in accordance with your understanding by signing and returning to us a copy of this letter.\nVery truly yours,\nVNUS Medical Technologies, Inc.\nBy:\n/S/ BRIAN E. FARLEY\nName:\nBrian E. Farley\nTitle:\nPresident and CEO\nCONFIDENTIAL\nFebruary 3, 2009\n4\nAccepted and agreed to as of this 3rd day of February, 2009:\nTyco Healthcare Group LP,\nd/b/a Covidien\nBy:\n/S/ JOHN H. MASTERSON\nName:\nJohn H. Masterson\nTitle:\nVice President\nCONFIDENTIAL\nFebruary 3, 2009\n5\nEXHIBIT A\nName\nCurrent Title\nDieter Bielang\nSenior Director, International Sales and Marketing\nBrian E. Farley\nPresident and Chief Executive Officer\nWilliam A. Franklin\nVice President, Regulatory Affairs and Quality Assurance\nKirti Kamdar\nSenior Vice President, Research & Development\nMark Kertz\nSenior Director, Intellectual Property\nTom Miller\nSenior Director, Information Technology\nScott Murcray\nController and Chief Accounting Officer\nPeter Osborne\nChief Financial Officer and Vice President, Finance and Administration\nMohan F. Sancheti\nSenior Vice President, Manufacturing\nMark S. Saxton\nVice President, U.S . Sales\nGuido Smeets\nVice President of Clinical Research and Chief Medical Officer\nDonald J. Todd\nVice President of Marketing\nCindee Van Vleck\nSenior Director of Human Resources\nCONFIDENTIAL\nFebruary 3, 2009\n6	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit (d)(3)\nPERSONAL AND CONFIDENTIAL\nFebruary 3, 2009\nTyco Healthcare Group LP,\nd/b/a Covidien\n15 Hampshire Street\nMansfield, MA 02048\nRe: CONFIDENTIALITY AND STANDSTILL AGREEMENT\nDear Sirs:\nIn connection with your consideration of a possible negotiated business combination transaction (a “Transaction”) with VNUS Medical\nTechnologies, Inc. and/or its subsidiaries (collectively, the “Company”), you have requested certain confidential and other information concerning\nthe Company.\nYou agree to treat any information furnished to you or your Representatives (as defined below) by or on behalf of the Company on or after the\ndate of this agreement concerning the Company or the business, products, markets, condition (financial or other) operations, assets, liabilities, results\nof operations, cash flows or prospects of the Company (whether prepared by the Company, its advisors or otherwise), whether written or unwritten,\ntogether with any and all analyses or other documents prepared by you or any of your directors, officers, employees, advisors, attorneys, accountants,\nconsultants, agents, representatives or lending institutions (and their respective counsel) (collectively, “Representatives”) which contain or otherwise\nreflect such information (collectively, “Evaluation Material”), in accordance with this agreement. The term “Evaluation Material” does not include\ninformation which (a) was already in your or any of your Representatives’ possession prior to the time of disclosure to you by or on behalf of the\nCompany, provided that the source of such information was not and is not known by you or any such Representative, as the case may be, to be bound\nby any contractual or other obligation of confidentiality to the Company or any other person with respect to any of such information, (b) was or\nbecomes generally available to the public other than as a result of a disclosure by you or your Representatives, (c) becomes available to you or any\nof your Representatives on a non-confidential basis from a source other than the Company, provided that such source is not known by you or any\nsuch Representative, as the case may be, to be bound by any contractual or other obligation of confidentiality to the Company or any other person\nwith respect to such information or (d) is independently developed by or for you without using the Evaluation Material.\nThe Evaluation Material will be used by you (and you shall cause your Representatives to use the Evaluation Material) solely for the purpose\nof evaluating a Transaction between the Company and you, and will be kept confidential by you (and you shall cause your Representatives to keep\nthe Evaluation Material confidential), except to the extent that disclosure (a) has been consented to in writing by the Company prior to any\ndisclosure, (b) is required by law or other applicable judicial or governmental order, or (c) is made to your Representatives who need to know such\ninformation for the purpose of evaluating the Transaction (it being understood that such Representatives shall be informed by you of the confidential\nnature of the Evaluation Material). In any event, you agree to undertake commercially reasonable precautions to safeguard and protect the\nconfidentiality of the Evaluation Material and to accept responsibility for any use or disclosure of Evaluation Material by you or your\nRepresentatives that would constitute a breach of this agreement.\nIn addition, without the prior written consent of the other party hereto, neither party will, and each party will direct its respective\nRepresentatives not to, disclose to any other person (a) that the Evaluation Material has been made available to you or your Representatives, (b) that\ninvestigations, discussions or negotiations are taking place concerning a Transaction, or (c) any terms, conditions or other facts with respect to any\nTransaction, including the status thereof and the identity of the parties thereto (collectively, the “Discussion Information™).\nWithout limiting the generality of the foregoing, you further agree that, without the prior written consent of the Company, you and your\nRepresentatives will not, directly or indirectly, consult or share Evaluation Material or Discussion Information with, or enter into any agreement,\narrangement or understanding, or any discussions which might lead to any such agreement, arrangement or understanding, with any co-investor,\nsource of equity financing or other person (other than the Company) regarding a Possible Transaction, including, without limitation, discussions or\nother communications with any prospective bidder for the Company with respect to (i) whether or not you or such other prospective bidder will\nmake a bid or offer for the Company or (ii) the price that you or such other bidder may bid or offer for the Company. The term “person” as used in\nthis letter agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity.\nIn the event that you or any of your Representatives are requested or required by judicial, legislative or regulatory process to disclose any\nEvaluation Material or Discussion Information, you will provide the Company with prompt notice of any such request or requirement so that the\nCompany may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this agreement. In the event that such\nprotective order or other remedy is not obtained, or that the Company waives compliance with the terms hereof, you may disclose only that portion\nof the Evaluation Material or Discussion Information that is legally required to be disclosed and shall exercise reasonable efforts to obtain assurances\nthat confidential treatment will be accorded to such Evaluation Material or Discussion Information. Likewise, in the event that the Company or any\nof its Representatives is requested or required by judicial, legislative or regulatory process to disclose any of the Discussion Information, it will\nprovide you with prompt notice of any such request or requirement so that you may seek a protective order or other appropriate remedy and/or waive\ncompliance with the terms of this agreement. In the event that such protective order or other remedy is not obtained, or that you waive compliance\nwith the terms hereof, the Company may disclose only that portion of the Discussion Information that is legally required to be disclosed.\nIt is understood and agreed that money damages would not be a sufficient remedy for any breach of this agreement, and that the Company is\nthus entitled to seek specific performance and injunctive or other equitable relief. Such remedy shall not be deemed to be the exclusive remedy for\nbreach of this agreement, but shall be in addition to all other remedies available at law or equity to the Company against the breach or threatened\nbreach of this agreement or the continuation of any such breach, without the necessity of proving actual damages.\nThe Company shall not be deemed to have made any representations or warranties, express or implied, as to the accuracy or completeness of\nthe Evaluation Material, and neither the Company nor its Representatives will have any liability to you or to any of your Representatives relating to\nor resulting from the use of any of the Evaluation Material or any accuracies or errors therein or omissions therefrom. Only those representations or\nwarranties which are made by the Company in a final written definitive agreement providing for the consummation of a Transaction, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nAs soon as practicable but in no event more than 10 business days after being so requested by the Company, except to the extent you are\nadvised by legal counsel that complying with such request would be prohibited by law, you will return to the Company, at your expense, or destroy\nall Evaluation Material in your possession or any of your Representatives. Any destruction of Evaluation Material shall be confirmed by you in\nwriting. With regard to destruction of Evaluation Materials in electronic form, you and your Representatives shall be required to perform customary\n“delete” functions made available by the software vendor for use by the end-user of the relevant software, but neither you nor your Representatives\nshall be required to delete all electronic copies that may be available, for example in backups or archives, or which are retrievable using forensic\ncomputer recovery techniques. Any Evaluation Material that can not be returned or destroyed (such as oral Evaluation Material)\nCONFIDENTIAL\nFebruary 3, 2009\nshall remain confidential, subject to the terms of this agreement. Notwithstanding the foregoing, your Representatives that are accounting firms or\nfinancial institutions may retain solely for compliance purposes copies of the Evaluation Material in accordance with policies and procedures\nimplemented by such persons or to comply with law, regulation or professional standards; provided, however, that any Evaluation Material so\nretained will continue to be held confidential pursuant to the terms of this Agreement. Notwithstanding the delivery to the Company of Evaluation\nMaterial pursuant to this paragraph, you and your Representatives will continue to be bound by the confidentiality obligations and other obligations\nthrough the expiration of the term of this agreement.\nThis agreement binds the parties only with respect to the matters expressly set forth herein. As such, unless and until a subsequent definitive\nwritten agreement regarding a Transaction between the Company and you has been executed, (a) neither the Company nor you will be under any\nlegal obligation of any kind whatsoever to negotiate or consummate a Transaction, (b) you shall have no claim whatsoever against the Company or\nany of its Representatives arising out of or relating to any Transaction and (c) the Company will be free to negotiate with, or enter into any\nagreement or transaction with, any other interested party with respect to a Transaction.\nAdditionally, you agree not to (and shall cause your affiliates not to) solicit for employment any employee of the Company (a) with whom you\nor any of your Representatives has had direct contact or (b) who is listed on Exhibit A attached to this agreement, for a period of one year after the\ndate of this agreement, provided that you shall not be restricted in any general solicitation for employees (including through the use of employment\nagencies or advertisements in the media) not specifically directed at any such persons, and provided further that you shall not be restricted in hiring\nany such person (i) who responds to any such general solicitation, (ii) who solicits you for employment, (iii) who you can establish by reasonable\nproof began employment discussions with you prior to the date of this agreement or (iv) whose employment has been terminated by the Company.\nYou agree that for a period from the date of this agreement until the earlier of (a) the first anniversary of the date of this letter agreement, or\n(b) the occurrence of a Significant Event (as defined below) (the “Standstill Period”), unless specifically invited to do so by the Company, neither\nyou nor any of your affiliates will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of the Company or any\nsecurities of any subsidiary of the Company, (ii) any acquisition of any assets of the Company or any assets of any subsidiary of the Company,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation or dissolution involving the\nCompany or any subsidiary of the Company, or involving any securities or assets of the Company or any securities or assets of any subsidiary\nof the Company, or any other transaction seeking control of the Company or any subsidiary of the Company or their respective voting\nsecurities or (iv) any “solicitation” of “proxies™ (as those terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents with respect to any securities of the Company;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of the Company;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of the Company;\n(d) take any action that could reasonably be expected to require the Company to make a public announcement regarding any of the types\nof matters set forth in clause “(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)”\nor “(d)” of this sentence;\nCONFIDENTIAL\nFebruary 3, 2009\n(f) assist, induce or encourage any other Person to take any action “(a)”, “(b)”, “(c)” or “(d)” or “(e)” of this sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other person relating to or any of the foregoing; or\n(h) request or propose that the Company or any of the Company’s Representatives amend, waive or consider the amendment or waiver of\nany provision set forth in this paragraph.\nA “Significant Event” shall mean the Company enters into any merger, sale or other business combination transaction pursuant to which the\noutstanding shares of common stock of the Company (the “Common Stock”) would be converted into cash or securities of another person or 13D\nGroup (as defined below) or 50% or more of the then outstanding shares of Common Stock would be owned by persons other than current holders of\nshares of Common Stock, or which would result in all or a substantial portion of the Company’s assets being sold to any person or 13D Group. “13D\nGroup” shall mean any group of persons formed for the purpose of acquiring, holding, voting or disposing of Voting Securities (as defined below)\nthat would be required under Section 13(d) of the Exchange Act and the rules and regulations thereunder to file a statement on Schedule 13D with\nthe SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act. “Voting Securities” shall mean at any time shares of any class of\ncapital stock of the Company that are then entitled to vote generally in the election of directors; provided that for purposes of this definition any\nsecurities that at such time are convertible or exchangeable into or exercisable for shares of Common Stock shall be deemed to have been so\nconverted, exchanged or exercised.\n \nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.\nThis agreement shall be governed by the internal laws of the State of Delaware, without regard to conflict of laws principles. This agreement\nmay be amended only in a writing signed by the Company and you. No failure or delay by the Company in exercising any right hereunder or any\npartial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any right hereunder.\nExcept as otherwise expressly provided herein, your obligations under this agreement shall remain in effect for a period of two years from the\ndate hereof, unless and until this agreement is terminated by the Company or is superseded by another agreement with you that concerns your use of\nthe Evaluation Material.\nPlease confirm that the foregoing is in accordance with your understanding by signing and returning to us a copy of this letter.\nVery truly yours,\nVNUS Medical Technologies, Inc.\nBy: /S/ BRIAN E. FARLEY\nName: Brian E. Farley\nTitle: President and CEO\nCONFIDENTIAL\nFebruary 3, 2009\nAccepted and agreed to as of this 3rd day of February, 2009:\nTyco Healthcare Group LP,\nd/b/a Covidien\nBy: /S/ JOHN H. MASTERSON\nName: John H. Masterson\nTitle: Vice President\nCONFIDENTIAL\nFebruary 3, 2009\nName\nDieter Bielang\nBrian E. Farley\nWilliam A. Franklin\nKirti Kamdar\nMark Kertz\nTom Miller\nScott Murcray\nPeter Osborne\nMohan F. Sancheti\nMark S. Saxton\nGuido Smeets\nDonald J. Todd\nCindee Van Vleck\n \nCONFIDENTIAL\nFebruary 3, 2009\nEXHIBIT A\nCurrent Title\nSenior Director, International Sales and Marketing\nPresident and Chief Executive Officer\nVice President, Regulatory Affairs and Quality Assurance\nSenior Vice President, Research & Development\nSenior Director, Intellectual Property\nSenior Director, Information Technology\nController and Chief Accounting Officer\nChief Financial Officer and Vice President, Finance and Administration\nSenior Vice President, Manufacturing\nVice President, U.S. Sales\nVice President of Clinical Research and Chief Medical Officer\nVice President of Marketing\nSenior Director of Human Resources	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit (d)(3)\nPERSONAL AND CONFIDENTIAL\nFebruary 3, 2009\nTyco Healthcare Group LP,\nd/b/a Covidien\n15 Hampshire Street\nMansfield, MA 02048\nRe: CONFIDENTIALITY AND STANDSTILL AGREEMENT\nDear Sirs:\nIn connection with your consideration of a possible negotiated business combination transaction (a "Transaction") with VNUS Medical\nTechnologies, Inc. and/or its subsidiaries (collectively, the "Company"), you have requested certain confidential and other information concerning\nthe Company.\nYou agree to treat any information furnished to you or your Representatives (as defined below) by or on behalf of the Company on or after the\ndate of this agreement concerning the Company or the business, products, markets, condition (financial or other) operations, assets, liabilities, results\nof operations, cash flows or prospects of the Company (whether prepared by the Company, its advisors or otherwise), whether written or unwritten,\ntogether with any and all analyses or other documents prepared by you or any of your directors, officers, employees, advisors, attorneys, accountants,\nconsultants, agents, representatives or lending institutions (and their respective counsel) (collectively, "Representatives") which contain or otherwise\nreflect such information (collectively, "Evaluation Material"), in accordance with this agreement. The term "Evaluation Material" does not include\ninformation which (a) was already in your or any of your Representatives' possession prior to the time of disclosure to you by or on behalf of the\nCompany, provided that the source of such information was not and is not known by you or any such Representative, as the case may be, to be bound\nby any contractual or other obligation of confidentiality to the Company or any other person with respect to any of such information, (b) was or\nbecomes\ngenerally\navailable\nto\nthe\npublic\nother\nthan\nas\na\nresult\nof\na\ndisclosure\nby\nyou\nor\nyour\nRepresentatives,\n(c)\nbecomes\navailable\nto\nyou\nor\nany\nof your Representatives on a non-confidential basis from a source other than the Company, provided that such source is not known by you or any\nsuch Representative, as the case may be, to be bound by any contractual or other obligation of confidentiality to the Company or any other person\nwith respect to such information or (d) is independently developed by or for you without using the Evaluation Material.\nThe Evaluation Material will be used by you (and you shall cause your Representatives to use the Evaluation Material) solely for the purpose\nof evaluating a Transaction between the Company and you, and will be kept confidential by you (and you shall cause your Representatives to keep\nthe Evaluation Material confidential), except to the extent that disclosure (a) has been consented to in writing by the Company prior to any\ndisclosure, (b) is required by law or other applicable judicial or governmental order, or (c) is made to your Representatives who need to know such\ninformation for the purpose of evaluating the Transaction (it being understood that such Representatives shall be informed by you of the confidential\nnature of the Evaluation Material). In any event, you agree to undertake commercially reasonable precautions to safeguard and protect the\nconfidentiality of the Evaluation Material and to accept responsibility for any use or disclosure of Evaluation Material by you or your\nRepresentatives that would constitute a breach of this agreement.\nIn addition, without the prior written consent of the other party hereto, neither party will, and each party will direct its respective\nRepresentatives not to, disclose to any other person (a) that the Evaluation Material has been made available to you or your Representatives, (b) that\ninvestigations, discussions or negotiations are taking place concerning a Transaction, or (c) any terms, conditions or other facts with respect to any\nTransaction, including the status thereof and the identity of the parties thereto (collectively, the "Discussion Information").\nWithout limiting the generality of the foregoing, you further agree that, without the prior written consent of the Company, you and\nyour\nRepresentatives will not, directly or indirectly, consult or share Evaluation Material or Discussion Information with, or enter into any agreement,\narrangement or understanding, or any discussions which might lead to any such agreement, arrangement or understanding, with any co-investor,\nsource of equity financing or other person (other than the Company) regarding a Possible Transaction, including, without limitation, discussions or\nother communications with any prospective bidder for the Company with respect to (i) whether or not you or such other prospective bidder will\nmake a bid or offer for the Company or (ii) the price that you or such other bidder may bid or offer for the Company. The term "person" as used in\nthis letter agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity.\nIn the event that you or any of your Representatives are requested or required by judicial, legislative or regulatory process to disclose any\nEvaluation Material or Discussion Information, you will provide the Company with prompt notice of any such request or requirement so that the\nCompany may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this agreement. In the event that such\nprotective order or other remedy is not obtained, or that the Company waives compliance with the terms hereof, you may disclose only that portion\nof the Evaluation Material or Discussion Information that is legally required to be disclosed and shall exercise reasonable efforts to obtain assurances\nthat confidential treatment will be accorded to such Evaluation Material or Discussion Information. Likewise, in the event that the Company or any\nof its Representatives is requested or required by judicial, legislative or regulatory process to disclose any of the Discussion Information, it will\nprovide you with prompt notice of any such request or requirement so that you may seek a protective order or other appropriate remedy and/or waive\ncompliance with the terms of this agreement. In the event that such protective order or other remedy is not obtained, or that you waive compliance\nwith the terms hereof, the Company may disclose only that portion of the Discussion Information that is legally required to be disclosed.\nIt is understood and agreed that money damages would not be a sufficient remedy for any breach of this agreement, and that the Company\nis\nthus entitled to seek specific performance and injunctive or other equitable relief. Such remedy shall not be deemed to be the exclusive remedy for\nbreach of this agreement, but shall be in addition to all other remedies available at law or equity to the Company against the breach or threatened\nbreach of this agreement or the continuation of any such breach, without the necessity of proving actual damages.\nThe Company shall not be deemed to have made any representations or warranties, express or implied, as to the accuracy or completeness of\nthe Evaluation Material, and neither the Company nor its Representatives will have any liability to you or to any of your Representatives relating to\nor resulting from the use of any of the Evaluation Material or any accuracies or errors therein or omissions therefrom. Only those representations\nor\nwarranties which are made by the Company in a final written definitive agreement providing for the consummation of a Transaction, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nAs soon as practicable but in no event more than 10 business days after being so requested by the Company, except to the extent you are\nadvised by legal counsel that complying with such request would be prohibited by law, you will return to the Company, at your expense, or destroy\nall Evaluation Material in your possession or any of your Representatives. Any destruction of Evaluation Material shall be confirmed by you\nin\nwriting. With regard to destruction of Evaluation Materials in electronic form, you and your Representatives shall be required to perform customary\n"delete" functions made available by the software vendor for use by the end-user of the relevant software, but neither you nor your Representatives\nshall be required to delete all electronic copies that may be available, for example in backups or archives, or which are retrievable using forensic\ncomputer recovery techniques. Any Evaluation Material that can not be returned or destroyed (such as oral Evaluation Material)\nCONFIDENTIAL\nFebruary 3, 2009\n2\nshall remain confidential, subject to the terms of this agreement. Notwithstanding the foregoing, your Representatives that are accounting firms or\nfinancial institutions may retain solely for compliance purposes copies of the Evaluation Material in accordance with policies and procedures\nimplemented by such persons or to comply with law, regulation or professional standards; provided, however, that any Evaluation Material\nso\nretained will continue to be held confidential pursuant to the terms of this Agreement. Notwithstanding the delivery to the Company of Evaluation\nMaterial pursuant to this paragraph, you and your Representatives will continue to be bound by the confidentiality obligations and other obligations\nthrough the expiration of the term of this agreement.\nThis agreement binds the parties only with respect to the matters expressly set forth herein. As such, unless and until a subsequent definitive\nwritten agreement regarding a Transaction between the Company and you has been executed, (a) neither the Company nor you will be under any\nlegal obligation of any kind whatsoever to negotiate or consummate a Transaction, (b) you shall have no claim whatsoever against the Company or\nany of its Representatives arising out of or relating to any Transaction and (c) the Company will be free to negotiate with, or enter into any\nagreement or transaction with, any other interested party with respect to a Transaction.\nAdditionally, you agree not to (and shall cause your affiliates not to) solicit for employment any employee of the Company (a) with whom you\nor any of your Representatives has had direct contact or (b) who is listed on Exhibit A attached to this agreement, for a period of one year after the\ndate of this agreement, provided that you shall not be restricted in any general solicitation for employees (including through the use of employment\nagencies or advertisements in the media) not specifically directed at any such persons, and provided further that you shall not be restricted in hiring\nany such person (i) who responds to any such general solicitation, (ii) who solicits you for employment, (iii) who you can establish by reasonable\nproof began employment discussions with you prior to the date of this agreement or (iv) whose employment has been terminated by the Company.\nYou\nagree\nthat\nfor\na\nperiod\nfrom\nthe\ndate\nof\nthis\nagreement\nuntil\nthe\nearlier\nof\n(a)\nthe\nfirst\nanniversary\nof\nthe\ndate\nof\nthis\nletter\nagreement,\nor\n(b) the occurrence of a Significant Event (as defined below) (the "Standstill Period"), unless specifically invited to do so by the Company, neither\nyou nor any of your affiliates will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of the Company or any\nsecurities of any subsidiary of the Company, (ii) any acquisition of any assets of the Company or any assets of any subsidiary of the Company,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation or dissolution involving the\nCompany or any subsidiary of the Company, or involving any securities or assets of the Company or any securities or assets of any subsidiary\nof the Company, or any other transaction seeking control of the Company or any subsidiary of the Company or their respective voting\nsecurities or (iv) any "solicitation" of "proxies" (as those terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents with respect to any securities of the Company;\n(b)\nform, join or participate in a "group" (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of the Company;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of the Company;\n(d) take any action that could reasonably be expected to require the Company to make a public announcement regarding any of the types\nof matters set forth in clause "(a)" of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause "(a)", "(b)", "(c)"\nor "(d)" of this sentence;\nCONFIDENTIAL\nFebruary 3, 2009\n3\n(f) assist, induce or encourage any other Person to take any action "(a)", "(b)", "(c)" or "(d)" or "(e)" of this sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other person relating to or any of the foregoing; or\n(h) request or propose that the Company or any of the Company's Representatives amend, waive or consider the amendment or waiver of\nany provision set forth in this paragraph.\nA\n"Significant Event" shall mean the Company enters into any merger, sale or other business combination transaction pursuant to which the\noutstanding shares of common stock of the Company (the "Common Stock") would be converted into cash or securities of another person or 13D\nGroup (as defined below) or 50% or more of the then outstanding shares of Common Stock would be owned by persons other than current holders of\nshares of Common Stock, or which would result in all or a substantial portion of the Company's assets being sold to any person or 13D Group. "13D\nGroup" shall mean any group of persons formed for the purpose of acquiring, holding, voting or disposing of Voting Securities (as defined below)\nthat\nwould be required under Section 13(d) of the Exchange Act and the rules and regulations thereunder to file a statement on Schedule 13D with\nthe SEC as a "person" within the meaning of Section 13(d)(3) of the Exchange Act. "Voting Securities" shall mean at any time shares of any class of\ncapital stock of the Company that are then entitled to vote generally in the election of directors; provided that for purposes of this definition any\nsecurities that at such time are convertible or exchangeable into or exercisable for shares of Common Stock shall be deemed to have been so\nconverted, exchanged or exercised.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.\nThis agreement shall be governed by the internal laws of the State of Delaware, without regard to conflict of laws principles. This agreement\nmay be amended only in a writing signed by the Company and you. No failure or delay by the Company in exercising any right hereunder or any\npartial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any right hereunder.\nExcept as otherwise expressly provided herein, your obligations under this agreement shall remain in effect for a period of two years from the\ndate hereof, unless and until this agreement is terminated by the Company or is superseded by another agreement with you that concerns your use of\nthe Evaluation Material.\nPlease confirm that the foregoing is in accordance with your understanding by signing and returning to us a copy of this letter.\nVery truly yours,\nVNUS Medical Technologies, Inc.\nBy:\n/S/ BRIAN E. FARLEY\nName:\nBrian E. Farley\nTitle:\nPresident and CEO\nCONFIDENTIAL\nFebruary 3, 2009\n4\nAccepted and agreed to as of this 3rd day of February, 2009:\nTyco Healthcare Group LP,\nd/b/a Covidien\nBy:\n/S/ JOHN H. MASTERSON\nName:\nJohn H. Masterson\nTitle:\nVice President\nCONFIDENTIAL\nFebruary 3, 2009\n5\nEXHIBIT A\nName\nCurrent Title\nDieter Bielang\nSenior Director, International Sales and Marketing\nBrian E. Farley\nPresident and Chief Executive Officer\nWilliam A. Franklin\nVice President, Regulatory Affairs and Quality Assurance\nKirti Kamdar\nSenior Vice President, Research & Development\nMark Kertz\nSenior Director, Intellectual Property\nTom Miller\nSenior Director, Information Technology\nScott Murcray\nController and Chief Accounting Officer\nPeter Osborne\nChief Financial Officer and Vice President, Finance and Administration\nMohan F. Sancheti\nSenior Vice President, Manufacturing\nMark S. Saxton\nVice President, U.S. Sales\nGuido Smeets\nVice President of Clinical Research and Chief Medical Officer\nDonald J. Todd\nVice President of Marketing\nCindee Van Vleck\nSenior Director of Human Resources\nCONFIDENTIAL\nFebruary 3, 2009\n6	EX-99.(D)(3) 10 dex99d3.htm CONFIDENTIALITY AND STANDSTILL AGREEMENT\nExhibit (d)(3)\nPERSONAL AND CONFIDENTIAL\nFebruary 3, 2009\nTyco Healthcare Group LP,\nd/b/a Covidien\n15 Hampshire Street\nMansfield, MA 02048\nRe: CONFIDENTIALITY AND STANDSTILL AGREEMENT\nDear Sirs:\nIn connection with your consideration of a possible negotiated business combination transaction (a “Transaction”) with VNUS Medical\nTechnologies, Inc. and/or its subsidiaries (collectively, the “Company”), you have requested certain confidential and other information concerning\nthe Company.\nYou agree to treat any information furnished to you or your Representatives (as defined below) by or on behalf of the Company on or after the\ndate of this agreement concerning the Company or the business, products, markets, condition (financial or other) operations, assets, liabilities, results\nof operations, cash flows or prospects of the Company (whether prepared by the Company, its advisors or otherwise), whether written or unwritten,\ntogether with any and all analyses or other documents prepared by you or any of your directors, officers, employees, advisors, attorneys, accountants,\nconsultants, agents, representatives or lending institutions (and their respective counsel) (collectively, “Representatives”) which contain or otherwise\nreflect such information (collectively, “Evaluation Material”), in accordance with this agreement. The term “Evaluation Material” does not include\ninformation which (a) was already in your or any of your Representatives’ possession prior to the time of disclosure to you by or on behalf of the\nCompany, provided that the source of such information was not and is not known by you or any such Representative, as the case may be, to be bound\nby any contractual or other obligation of confidentiality to the Company or any other person with respect to any of such information, (b) was or\nbecomes generally available to the public other than as a result of a disclosure by you or your Representatives, (c) becomes available to you or any\nof your Representatives on a non-confidential basis from a source other than the Company, provided that such source is not known by you or any\nsuch Representative, as the case may be, to be bound by any contractual or other obligation of confidentiality to the Company or any other person\nwith respect to such information or (d) is independently developed by or for you without using the Evaluation Material.\nThe Evaluation Material will be used by you (and you shall cause your Representatives to use the Evaluation Material) solely for the purpose\nof evaluating a Transaction between the Company and you, and will be kept confidential by you (and you shall cause your Representatives to keep\nthe Evaluation Material confidential), except to the extent that disclosure (a) has been consented to in writing by the Company prior to any\ndisclosure, (b) is required by law or other applicable judicial or governmental order, or (c) is made to your Representatives who need to know such\ninformation for the purpose of evaluating the Transaction (it being understood that such Representatives shall be informed by you of the confidential\nnature of the Evaluation Material). In any event, you agree to undertake commercially reasonable precautions to safeguard and protect the\nconfidentiality of the Evaluation Material and to accept responsibility for any use or disclosure of Evaluation Material by you or your\nRepresentatives that would constitute a breach of this agreement.\nIn addition, without the prior written consent of the other party hereto, neither party will, and each party will direct its respective\nRepresentatives not to, disclose to any other person (a) that the Evaluation Material has been made available to you or your Representatives, (b) that\ninvestigations, discussions or negotiations are taking place concerning a Transaction, or (c) any terms, conditions or other facts with respect to any\nTransaction, including the status thereof and the identity of the parties thereto (collectively, the “Discussion Information”).\nWithout limiting the generality of the foregoing, you further agree that, without the prior written consent of the Company, you and your\nRepresentatives will not, directly or indirectly, consult or share Evaluation Material or Discussion Information with, or enter into any agreement,\narrangement or understanding, or any discussions which might lead to any such agreement, arrangement or understanding, with any co-investor,\nsource of equity financing or other person (other than the Company) regarding a Possible Transaction, including, without limitation, discussions or\nother communications with any prospective bidder for the Company with respect to (i) whether or not you or such other prospective bidder will\nmake a bid or offer for the Company or (ii) the price that you or such other bidder may bid or offer for the Company. The term “person” as used in\nthis letter agreement shall be broadly interpreted to include the media and any corporation, partnership, group, individual or other entity.\nIn the event that you or any of your Representatives are requested or required by judicial, legislative or regulatory process to disclose any\nEvaluation Material or Discussion Information, you will provide the Company with prompt notice of any such request or requirement so that the\nCompany may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this agreement. In the event that such\nprotective order or other remedy is not obtained, or that the Company waives compliance with the terms hereof, you may disclose only that portion\nof the Evaluation Material or Discussion Information that is legally required to be disclosed and shall exercise reasonable efforts to obtain assurances\nthat confidential treatment will be accorded to such Evaluation Material or Discussion Information. Likewise, in the event that the Company or any\nof its Representatives is requested or required by judicial, legislative or regulatory process to disclose any of the Discussion Information, it will\nprovide you with prompt notice of any such request or requirement so that you may seek a protective order or other appropriate remedy and/or waive\ncompliance with the terms of this agreement. In the event that such protective order or other remedy is not obtained, or that you waive compliance\nwith the terms hereof, the Company may disclose only that portion of the Discussion Information that is legally required to be disclosed.\nIt is understood and agreed that money damages would not be a sufficient remedy for any breach of this agreement, and that the Company is\nthus entitled to seek specific performance and injunctive or other equitable relief. Such remedy shall not be deemed to be the exclusive remedy for\nbreach of this agreement, but shall be in addition to all other remedies available at law or equity to the Company against the breach or threatened\nbreach of this agreement or the continuation of any such breach, without the necessity of proving actual damages.\nThe Company shall not be deemed to have made any representations or warranties, express or implied, as to the accuracy or completeness of\nthe Evaluation Material, and neither the Company nor its Representatives will have any liability to you or to any of your Representatives relating to\nor resulting from the use of any of the Evaluation Material or any accuracies or errors therein or omissions therefrom. Only those representations or\nwarranties which are made by the Company in a final written definitive agreement providing for the consummation of a Transaction, when, as and if\nexecuted, and subject to such limitations and restrictions as may be specified therein, will have any legal effect.\nAs soon as practicable but in no event more than 10 business days after being so requested by the Company, except to the extent you are\nadvised by legal counsel that complying with such request would be prohibited by law, you will return to the Company, at your expense, or destroy\nall Evaluation Material in your possession or any of your Representatives. Any destruction of Evaluation Material shall be confirmed by you in\nwriting. With regard to destruction of Evaluation Materials in electronic form, you and your Representatives shall be required to perform customary\n“delete” functions made available by the software vendor for use by the end-user of the relevant software, but neither you nor your Representatives\nshall be required to delete all electronic copies that may be available, for example in backups or archives, or which are retrievable using forensic\ncomputer recovery techniques. Any Evaluation Material that can not be returned or destroyed (such as oral Evaluation Material)\nCONFIDENTIAL\nFebruary 3, 2009\n2\nshall remain confidential, subject to the terms of this agreement. Notwithstanding the foregoing, your Representatives that are accounting firms or\nfinancial institutions may retain solely for compliance purposes copies of the Evaluation Material in accordance with policies and procedures\nimplemented by such persons or to comply with law, regulation or professional standards; provided, however, that any Evaluation Material so\nretained will continue to be held confidential pursuant to the terms of this Agreement. Notwithstanding the delivery to the Company of Evaluation\nMaterial pursuant to this paragraph, you and your Representatives will continue to be bound by the confidentiality obligations and other obligations\nthrough the expiration of the term of this agreement.\nThis agreement binds the parties only with respect to the matters expressly set forth herein. As such, unless and until a subsequent definitive\nwritten agreement regarding a Transaction between the Company and you has been executed, (a) neither the Company nor you will be under any\nlegal obligation of any kind whatsoever to negotiate or consummate a Transaction, (b) you shall have no claim whatsoever against the Company or\nany of its Representatives arising out of or relating to any Transaction and (c) the Company will be free to negotiate with, or enter into any\nagreement or transaction with, any other interested party with respect to a Transaction.\nAdditionally, you agree not to (and shall cause your affiliates not to) solicit for employment any employee of the Company (a) with whom you\nor any of your Representatives has had direct contact or (b) who is listed on Exhibit A attached to this agreement, for a period of one year after the\ndate of this agreement, provided that you shall not be restricted in any general solicitation for employees (including through the use of employment\nagencies or advertisements in the media) not specifically directed at any such persons, and provided further that you shall not be restricted in hiring\nany such person (i) who responds to any such general solicitation, (ii) who solicits you for employment, (iii) who you can establish by reasonable\nproof began employment discussions with you prior to the date of this agreement or (iv) whose employment has been terminated by the Company.\nYou agree that for a period from the date of this agreement until the earlier of (a) the first anniversary of the date of this letter agreement, or\n(b) the occurrence of a Significant Event (as defined below) (the “Standstill Period”), unless specifically invited to do so by the Company, neither\nyou nor any of your affiliates will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of the Company or any\nsecurities of any subsidiary of the Company, (ii) any acquisition of any assets of the Company or any assets of any subsidiary of the Company,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation or dissolution involving the\nCompany or any subsidiary of the Company, or involving any securities or assets of the Company or any securities or assets of any subsidiary\nof the Company, or any other transaction seeking control of the Company or any subsidiary of the Company or their respective voting\nsecurities or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents with respect to any securities of the Company;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of the Company;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of the Company;\n(d) take any action that could reasonably be expected to require the Company to make a public announcement regarding any of the types\nof matters set forth in clause “(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)”\nor “(d)” of this sentence;\nCONFIDENTIAL\nFebruary 3, 2009\n3\n(f) assist, induce or encourage any other Person to take any action “(a)”, “(b)”, “(c)” or “(d)” or “(e)” of this sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other person relating to or any of the foregoing; or\n(h) request or propose that the Company or any of the Company’s Representatives amend, waive or consider the amendment or waiver of\nany provision set forth in this paragraph.\nA “Significant Event” shall mean the Company enters into any merger, sale or other business combination transaction pursuant to which the\noutstanding shares of common stock of the Company (the “Common Stock”) would be converted into cash or securities of another person or 13D\nGroup (as defined below) or 50% or more of the then outstanding shares of Common Stock would be owned by persons other than current holders of\nshares of Common Stock, or which would result in all or a substantial portion of the Company’s assets being sold to any person or 13D Group. “13D\nGroup” shall mean any group of persons formed for the purpose of acquiring, holding, voting or disposing of Voting Securities (as defined below)\nthat would be required under Section 13(d) of the Exchange Act and the rules and regulations thereunder to file a statement on Schedule 13D with\nthe SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act. “Voting Securities” shall mean at any time shares of any class of\ncapital stock of the Company that are then entitled to vote generally in the election of directors; provided that for purposes of this definition any\nsecurities that at such time are convertible or exchangeable into or exercisable for shares of Common Stock shall be deemed to have been so\nconverted, exchanged or exercised.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this letter agreement.\nThis agreement shall be governed by the internal laws of the State of Delaware, without regard to conflict of laws principles. This agreement\nmay be amended only in a writing signed by the Company and you. No failure or delay by the Company in exercising any right hereunder or any\npartial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any right hereunder.\nExcept as otherwise expressly provided herein, your obligations under this agreement shall remain in effect for a period of two years from the\ndate hereof, unless and until this agreement is terminated by the Company or is superseded by another agreement with you that concerns your use of\nthe Evaluation Material.\nPlease confirm that the foregoing is in accordance with your understanding by signing and returning to us a copy of this letter.\nVery truly yours,\nVNUS Medical Technologies, Inc.\nBy:\n/S/ BRIAN E. FARLEY\nName:\nBrian E. Farley\nTitle:\nPresident and CEO\nCONFIDENTIAL\nFebruary 3, 2009\n4\nAccepted and agreed to as of this 3rd day of February, 2009:\nTyco Healthcare Group LP,\nd/b/a Covidien\nBy:\n/S/ JOHN H. MASTERSON\nName:\nJohn H. Masterson\nTitle:\nVice President\nCONFIDENTIAL\nFebruary 3, 2009\n5\nEXHIBIT A\nName\nCurrent Title\nDieter Bielang\nSenior Director, International Sales and Marketing\nBrian E. Farley\nPresident and Chief Executive Officer\nWilliam A. Franklin\nVice President, Regulatory Affairs and Quality Assurance\nKirti Kamdar\nSenior Vice President, Research & Development\nMark Kertz\nSenior Director, Intellectual Property\nTom Miller\nSenior Director, Information Technology\nScott Murcray\nController and Chief Accounting Officer\nPeter Osborne\nChief Financial Officer and Vice President, Finance and Administration\nMohan F. Sancheti\nSenior Vice President, Manufacturing\nMark S. Saxton\nVice President, U.S . Sales\nGuido Smeets\nVice President of Clinical Research and Chief Medical Officer\nDonald J. Todd\nVice President of Marketing\nCindee Van Vleck\nSenior Director of Human Resources\nCONFIDENTIAL\nFebruary 3, 2009\n6
+bb874bf35c9ec19768d27fab8a4abb91.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 7 d426098dex99d3.htm EXHIBIT (D)(3)\nExhibit (d)(3)\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a\nDelaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties”\nand individually as a “Party”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity\ninterests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party\nand the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each\nParty, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’\nobligations regarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as\ndefined in Section 13 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a Transaction between the Parties; or\n(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13\nbelow).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nreasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential\nInformation.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”).\nNeither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider\nin connection with a Transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any\nparticular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any\nConfidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state\nsecurities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein\nor omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the\nconsummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to\nthe Recipient’s disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the\nRecipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate\nor negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the\nprovisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process or stock exchange rule.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed\nonly to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary\ncontained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any\nother Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or\npermitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the\nPermitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.\n(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid\nlegal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with\nwritten notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient\nand its Representatives will\n-2-\ncooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such\nprotective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in\nconnection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such\nConfidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to\nensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to\nthe Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s\nRepresentatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such\nConfidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to\nreturn or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the\ndelivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant\nto this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement with respect to such Confidential Information.\n6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither\nit nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for\nemployment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect\nsubsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its\ndirect or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or\nengaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.\n7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any\nof Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of\nany subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer,\nmerger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of\nSeller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as\nthose terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any\nsubsidiary of Seller;\n-3-\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any\nsubsidiary of Seller;\n(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of\nthis Section 7;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of\nthis Section 7;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision\nset forth in this Section 7;\nprovided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause\n(d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives\n(provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).\nThe standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a\nDefinitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision,\n(1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50%\nof the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions\n(whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated,\nwould result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party\nunrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the\nelection of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of\nDirectors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this\nSection 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in\nSection 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period\nwill not terminate or otherwise affect any of the other provisions of this letter agreement.\n-4-\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any\nsuch agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement\nbetween the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and\nto enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party\nor any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof\nor the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by\nmeans of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or\nprovisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party\nor by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party\nwill also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this\nAgreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The\nequitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to\nall other remedies available at law or in equity to the Parties.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with\nthe laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents\nand submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out\nof or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or\nrelating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n-5-\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or\nprojection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been\nmade available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon\nany information of the type referred to in clause (a) of this Section 12;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been\nmade available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed\nterms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the\nRecipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was\nnot and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other\nPerson with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information\nand without reference to or use of Confidential Information.\n13. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary\nor other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of\nany of such Party’s subsidiaries or other affiliates.\n-6-\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity\nor enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation\nor in any other jurisdiction.\n(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is\nnot, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret,\ncopyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent\napplication containing any claim to any subject matter derived from the Confidential Information of the Provider.\n(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not\nwaiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or\ndoctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and\n(ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit,\nproceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials\nand other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the\ncontinued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable\nprivilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine\nor other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense\ndoctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or\ndoctrines.\n(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any\ntime upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the\n-7-\nobligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of\nthree years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive\nindefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this\nAgreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and\neffect and survive any termination of this Agreement.\n(h) The Recipient agrees not to export, directly or indirectly, any U.S . source technical data acquired from the Provider or any products\nutilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.\n(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto,\nincluding legal notices, shall be in the English language only.\n[Signature Page Next]\n-8-\nARMO BIOSCIENCES, INC.\nELI LILLY AND COMPANY\nBy: /s/ Peter Van Vlasselaer\nBy: /s/ Timothy C. Dolan\nTitle: CEO\nTitle: V.P., Business Development\nAddress: 575 Chesapeake Dr.\nAddress: Lilly Corporate Center\nRedwood City, CA 94063\nIndianapolis, IN	EX-99.(D)(3) 7 d426098dex99d3.htm EXHIBIT (D)(3)\nExhibit (d)(3)\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a\nDelaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties”\nand individually as a “Party”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity\ninterests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party\nand the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each\nParty, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’\nobligations regarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as\ndefined in Section 13 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a Transaction between the Parties; or\n(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13\nbelow).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nreasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential\nInformation.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”).\nNeither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider\nin connection with a Transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any\nparticular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any\nConfidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state\nsecurities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein\nor omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the\nconsummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to\nthe Recipient’s disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the\nRecipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate\nor negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the\nprovisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process or stock exchange rule.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed\nonly to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary\ncontained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any\nother Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or\npermitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the\nPermitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.\n(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid\nlegal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with\nwritten notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient\nand its Representatives will\n-\ncooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such\nprotective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in\nconnection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such\nConfidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to\nensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to\nthe Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s\nRepresentatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such\nConfidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to\nreturn or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the\ndelivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant\nto this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement with respect to such Confidential Information.\n6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither\nit nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for\nemployment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect\nsubsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its\ndirect or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or\nengaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.\n7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any\nof Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of\nany subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer,\nmerger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of\nSeller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as\nthose terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any\nsubsidiary of Seller;\n3-\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any\nsubsidiary of Seller;\n(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of\nthis Section 7;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of\nthis Section 7;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision\nset forth in this Section 7;\nprovided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause\n(d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives\n(provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).\nThe standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a\nDefinitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision,\n(1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50%\nof the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions\n(whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated,\nwould result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party\nunrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the\nelection of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of\nDirectors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this\nSection 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in\nSection 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period\nwill not terminate or otherwise affect any of the other provisions of this letter agreement.\n4-\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any\nsuch agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement\nbetween the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and\nto enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party\nor any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof\nor the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by\nmeans of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or\nprovisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party\nor by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party\nwill also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this\nAgreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The\nequitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to\nall other remedies available at law or in equity to the Parties.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with\nthe laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents\nand submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out\nof or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or\nrelating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or\nprojection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been\nmade available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon\nany information of the type referred to in clause (a) of this Section 12;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been\nmade available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed\nterms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the\nRecipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was\nnot and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other\nPerson with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information\nand without reference to or use of Confidential Information.\n13. Miscellaneous.\na) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiar\npurp g y p y\nor other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of\nany of such Party’s subsidiaries or other affiliates.\n-6-\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity\nor enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation\nor in any other jurisdiction.\n(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is\nnot, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret,\ncopyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent\napplication containing any claim to any subject matter derived from the Confidential Information of the Provider.\n(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not\nwaiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or\ndoctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and\n(ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit,\nproceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials\nand other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the\ncontinued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable\nprivilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine\nor other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense\ndoctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or\ndoctrines.\n(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any\ntime upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the\n-7-\nobligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of\nthree years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive\nindefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this\nAgreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and\neffect and survive any termination of this Agreement.\n(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products\nutilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.\n(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto,\nincluding legal notices, shall be in the English language only.\n[Signature Page Next]\n8-\nARMO BIOSCIENCES, INC.\nBy:_/s/ Peter Van Vlasselaer Title: CEO\nAddress: 575 Chesapeake Dr. Redwood City, CA 94063\nELI LILLY AND COMPANY\nBy: /s/ Timothy C. Dolan\nTitle: V.P., Business Development Address: Lilly Corporate Center Indianapolis, IN	EX-99.(D)(3) 7 d426098dex99d3.htm EXHIBIT (D)(3)\nExhibit (d)(3)\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT ("Agreement") is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a\nDelaware corporation ("Seller"), and Eli Lilly and Company, an Indiana corporation ("Buyer" and with Seller referred to collectively as the "Parties"\nand individually as a "Party").\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer's acquisition of all of the equity\ninterests in Seller (a "Transaction"), each Party has either requested or may request access to certain non-public information regarding the other Party\nand the other Party's subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the "Provider"; and each\nParty, in its capacity as a recipient of information, is referred to in this Agreement as the "Recipient".) This Agreement sets forth the Parties'\nobligations regarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient's Representatives (as\ndefined in Section 13 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider's Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a Transaction between the Parties; or\n(b) subject to Section 4 below, disclose any of the Provider's Confidential Information to any other Person (as defined in Section 13\nbelow).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nreasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider's Confidentia\nInformation.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider's Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the "Provider Contact Person").\nNeither the Recipient nor any of the Recipient's Representatives will contact or otherwise communicate with any other Representative of the Provider\nin connection with a Transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. Neither the Provider nor any of the Provider's Representatives will be under any obligation to make any\nparticular Confidential Information of the Provider available to the Recipient or any of the Recipient's Representatives or to supplement or update any\nConfidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider's Confidential Information, and neither the Provider nor any of its Representatives will have any liability to\nthe\nRecipient or to any of the Recipient's Representatives on any basis (including, without limitation, in contract, tort or under United\nStates\nfederal\nor\nstate\nsecurities laws or otherwise) relating to or resulting from the use of any of the Provider's Confidential Information or any inaccuracies or errors therein\nor omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the\nconsummation of a Transaction between the Parties (a "Definitive Agreement") will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to\nthe Recipient's disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the\nRecipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate\nor negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the\nprovisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process or stock exchange rule.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed\nonly to specified Representatives of the Recipient (such notice, a "Permitted Representatives Notice"), then, notwithstanding anything to the contrary\ncontained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any\nother Representative of the Recipient (any such other Representative, an "Impermissible Representative"). For clarity, if the Recipient disclosed, or\npermitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient's receipt of the\nPermitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.\n(c) If the Recipient or any of the Recipient's Representatives is required by law or governmental regulation or by subpoena or other valid\nlegal process to disclose any of the Provider's Confidential Information to any Person, then the Recipient will promptly provide the Provider with\nwritten notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient\nand its Representatives will\n-2-\ncooperate with the Provider and the Provider's Representatives (at the Provider's sole expense) in any attempt by the Provider to obtain any such\nprotective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy\nin\nconnection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such\nConfidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to\nensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider's request, the Recipient and the Recipient's Representatives will promptly deliver to\nthe Provider any of the Provider's Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient's\nRepresentatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such\nConfidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required\nto\nreturn or destroy copies of Confidential Information created pursuant to Recipient's automatic archiving and back-up procedures. Notwithstanding\nthe\ndelivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant\nto this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement with respect to such Confidential Information.\n6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither\nit\nnor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for\nemployment any employee of the other Party (or any of such other Party's direct or indirect subsidiaries) with whom it (or any of its direct or indirect\nsubsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its\ndirect or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or\nengaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.\n7.\nStandstill Provision. During the 12 month period commencing on the date of this Agreement (the "Standstill Period"), neither Buyer nor any\nof Buyer's subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of\nany subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer,\nmerger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of\nSeller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any "solicitation" of "proxies" (as\nthose terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any\nsubsidiary of Seller;\n-3-\n(b) form, join or participate in a "group" (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any\nsubsidiary of Seller;\n(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of\nthis Section 7;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of\nthis Section 7;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Seller or any of Seller's Representatives amend, waive or consider the amendment or waiver of any provision\nset forth in this Section 7;\nprovided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause\n(d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives\n(provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).\nThe standstill provisions of this Section 7 shall not apply to the Parties' entry into or consummation of the transactions contemplated by a\nDefinitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision,\n(1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than\n50%\nof the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions\n(whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated,\nwould result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party\nunrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the\nelection of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of\nDirectors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this\nSection 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in\nSection 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period\nwill not terminate or otherwise affect any of the other provisions of this letter agreement.\n-4-\n8.\nNo\nObligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany\nsuch\nagreement\nor\ntransaction\nwith\nthe\nother\nParty.\nEach\nParty\nrecognizes\nthat,\nexcept\nas\nexpressly\nprovided\nin\nany\nlegally\nbinding\nwritten\nagreement\nbetween the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and\nto enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party\nor any of the other Party's Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill\noperate\nas\na\nwaiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof\nor the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by\nmeans of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or\nprovisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party\nor by any of such Party's Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party\nwill also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this\nAgreement by the other Party or any of the other Party's Representatives (without the need for posting a bond or providing other security). The\nequitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition\nto\nall other remedies available at law or in equity to the Parties.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with\nthe laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents\nand\nsubmits\nto the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out\nof or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally\nwaives\nthe right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of\nor\nrelating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider's "Confidential Information" will be deemed to include only the\nfollowing:\n-5-\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or\nprojection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been\nmade available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon\nany information of the type referred to in clause (a) of this Section 12;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been\nmade available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed\nterms of any such transaction.\nHowever, the Provider's "Confidential Information" will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient's Representatives;\n(ii) any information that was in the Recipient's possession prior to the time it was first made available to the Recipient or any of the\nRecipient's Representatives by or on behalf of the Provider or any of the Provider's Representatives, provided that the source of such information was\nnot and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other\nPerson with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider's Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidentia Information\nand without reference to or use of Confidential Information.\n13. Miscellaneous.\n(a) For purposes of this Agreement, a Party's "Representatives" will be deemed to include each Person that is or becomes (i) a subsidiary\nor other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of\nany of such Party's subsidiaries or other affiliates.\n-6-\n(b) The term "Person," as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity\nor enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation\nor in any other jurisdiction.\n(d) By making Confidential Information or other information available to the Recipient or the Recipient's Representatives, the Provider is\nnot, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret,\ncopyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient's Representatives shall file any patent\napplication containing any claim to any subject matter derived from the Confidential Information of the Provider.\n(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective\naction, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not\nwaiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or\ndoctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and\n(ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit,\nproceeding, investigation, arbitration or dispute and that it is the Parties' mutual desire, intention and understanding that the sharing of such materials\nand other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish\nthe\ncontinued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable\nprivilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine\nor other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense\ndoctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or\ndoctrines.\n(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any\ntime upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the\n-7-\nobligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of\nthree years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive\nindefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this\nAgreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and\neffect and survive any termination of this Agreement.\n(h) The Recipient agrees not to export, directly or indirectly, any U.S. source technical data acquired from the Provider or any products\nutilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.\n(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto,\nincluding legal notices, shall be in the English language only.\n[Signature Page Next]\n-8-\nARMO BIOSCIENCES, INC.\nELI LILLY AND COMPANY\nBy: /s/ Peter Van Vlasselaer\nBy: /s/ Timothy. C. Dolan\nTitle: CEO\nTitle: V.P., Business Development\nAddress: 575 Chesapeake Dr.\nAddress: Lilly Corporate Center\nRedwood City, CA 94063\nIndianapolis, IN	EX-99.(D)(3) 7 d426098dex99d3.htm EXHIBIT (D)(3)\nExhibit (d)(3)\nNON-DISCLOSURE AGREEMENT\nThis NON-DISCLOSURE AGREEMENT (“Agreement”) is being entered into as of March 19, 2018 between ARMO Biosciences, Inc., a\nDelaware corporation (“Seller”), and Eli Lilly and Company, an Indiana corporation (“Buyer” and with Seller referred to collectively as the “Parties”\nand individually as a “Party”).\nIn order to facilitate the consideration and negotiation of a possible negotiated transaction involving Buyer’s acquisition of all of the equity\ninterests in Seller (a “Transaction”), each Party has either requested or may request access to certain non-public information regarding the other Party\nand the other Party’s subsidiaries. (Each Party, in its capacity as a provider of information, is referred to in this Agreement as the “Provider”; and each\nParty, in its capacity as a recipient of information, is referred to in this Agreement as the “Recipient”.) This Agreement sets forth the Parties’\nobligations regarding the use and disclosure of such information and regarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Limitations on Use and Disclosure of Confidential Information. Neither the Recipient nor any of the Recipient’s Representatives (as\ndefined in Section 13 below) will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information (as defined in Section 12 below), except for the specific purpose of\nconsidering, evaluating and negotiating a Transaction between the Parties; or\n(b) subject to Section 4 below, disclose any of the Provider’s Confidential Information to any other Person (as defined in Section 13\nbelow).\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct\non the part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nreasonable actions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential\nInformation.\n2. Provider Contact Person. Any request by the Recipient or any of its Representatives to review any of the Provider’s Confidential\nInformation must be directed to the individual(s) identified opposite the name of the Provider on EXHIBIT A (the “Provider Contact Person”).\nNeither the Recipient nor any of the Recipient’s Representatives will contact or otherwise communicate with any other Representative of the Provider\nin connection with a Transaction without the prior written authorization of the Provider Contact Person.\n3. No Representations by Provider. Neither the Provider nor any of the Provider’s Representatives will be under any obligation to make any\nparticular Confidential Information of the Provider available to the Recipient or any of the Recipient’s Representatives or to supplement or update any\nConfidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient’s Representatives on any basis (including, without limitation, in contract, tort or under United States federal or state\nsecurities laws or otherwise) relating to or resulting from the use of any of the Provider’s Confidential Information or any inaccuracies or errors therein\nor omissions therefrom. Only those representations and warranties that are included in any final definitive written agreement that provides for the\nconsummation of a Transaction between the Parties (a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in Section 1 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing to\nthe Recipient’s disclosure thereof;\n(ii) subject to Section 4(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of the\nRecipient, but only to the extent such Representative (A) needs to know such Confidential Information for the purpose of helping the Recipient evaluate\nor negotiate a Transaction between the Parties, and (B) has been provided with a copy of this Agreement and has agreed to abide and be bound by the\nprovisions hereof or is otherwise bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and\n(iii) subject to Section 4(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by valid legal process or stock exchange rule.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be disclosed\nonly to specified Representatives of the Recipient (such notice, a “Permitted Representatives Notice”), then, notwithstanding anything to the contrary\ncontained in Section 4(a)(ii) above, the Recipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any\nother Representative of the Recipient (any such other Representative, an “Impermissible Representative”). For clarity, if the Recipient disclosed, or\npermitted the disclosure of, any such certain Confidential Information to an Impermissible Representative prior to the Recipient’s receipt of the\nPermitted Representatives Notice, such disclosure shall not be deemed a breach of this Agreement.\n(c) If the Recipient or any of the Recipient’s Representatives is required by law or governmental regulation or by subpoena or other valid\nlegal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the Provider with\nwritten notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy. The Recipient\nand its Representatives will\n-2-\ncooperate with the Provider and the Provider’s Representatives (at the Provider’s sole expense) in any attempt by the Provider to obtain any such\nprotective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in\nconnection with any requirement that the Recipient disclose Confidential Information of the Provider, then the Recipient may disclose such\nConfidential Information to the extent legally required; provided however, that the Recipient and its Representatives will use their reasonable efforts to\nensure that such Confidential Information is treated confidentially by each Person to whom it is disclosed.\n5. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver to\nthe Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the Recipient’s\nRepresentatives; provided, however, that, in lieu of delivering such Confidential Information to the Provider, the Recipient may destroy such\nConfidential Information and deliver to the Provider a certificate confirming their destruction; provided further, that Recipient shall not be required to\nreturn or destroy copies of Confidential Information created pursuant to Recipient’s automatic archiving and back-up procedures. Notwithstanding the\ndelivery to the Provider, the destruction by the Recipient or the automatic archiving by Recipient of Confidential Information of the Provider pursuant\nto this Section 5, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement with respect to such Confidential Information.\n6. Limitation on Soliciting Employees. During the 12 month period commencing on the date of this Agreement, each Party agrees that neither\nit nor any of its direct or indirect subsidiaries who is or becomes aware of the negotiation of a possible Transaction between the Parties shall solicit for\nemployment any employee of the other Party (or any of such other Party’s direct or indirect subsidiaries) with whom it (or any of its direct or indirect\nsubsidiaries) came into contact in connection with a possible Transaction; provided, however, that this Section 6 will not prevent either Party or its\ndirect or indirect subsidiaries from making generalized searches for employees by causing to be placed any general advertisement or similar notices or\nengaging search firms, provided that that such searches are not targeted specifically at employees of the other Party or its direct or indirect subsidiaries.\n7. Standstill Provision. During the 12 month period commencing on the date of this Agreement (the “Standstill Period”), neither Buyer nor any\nof Buyer’s subsidiaries or other Representatives on behalf of Buyer will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Seller or any securities of\nany subsidiary of Seller, (ii) any acquisition of any assets of Seller or any assets of any subsidiary of Seller, (iii) any tender offer, exchange offer,\nmerger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Seller or any subsidiary of\nSeller or involving any securities or assets of Seller or any securities 4r assets of any subsidiary of Seller, or (iv) any “solicitation” of “proxies” (as\nthose terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Seller or any\nsubsidiary of Seller;\n-3-\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Seller or any subsidiary of Seller;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Seller or any\nsubsidiary of Seller;\n(d) take any action that might require Seller to make a public announcement regarding any of the types of matters set forth in clause (a) of\nthis Section 7;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of\nthis Section 7;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this Section 7;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Seller or any of Seller’s Representatives amend, waive or consider the amendment or waiver of any provision\nset forth in this Section 7;\nprovided that Buyer shall not be prohibited from making or discussing any offers in a confidential, non-public manner that does not violate sub-clause\n(d) above regarding the Transaction directly to or with the management or the Board of Directors of Seller, or their designated Representatives\n(provided that the contents, subject and existence of any such communications shall constitute Confidential Information hereunder).\nThe standstill provisions of this Section 7 shall not apply to the Parties’ entry into or consummation of the transactions contemplated by a\nDefinitive Agreement. The standstill provisions of this Section 7 shall not apply in the event that, without any violation of the standstill provision,\n(1) any third party unrelated to Buyer has made any public announcement of its intent to commence a tender offer or exchange offer for more than 50%\nof the capital stock of Seller, (ii) Seller publicly announces that it has entered into a definitive agreement for a transaction or series of transactions\n(whether structured as a tender offer, exchange offer, merger, business combination, sale of assets or other similar transaction) that, if consummated,\nwould result in a sale of more than 50% of the capital stock of Seller or a sale of all or substantially all of the assets of Seller, or (iii) any third party\nunrelated to Buyer commences, or makes a public announcement of its intention to commence, a proxy contest or proxy solicitation with respect to the\nelection of, or enters into an agreement, commitment or understanding with respect to the replacement or addition of, members of the Board of\nDirectors of the Seller such that a majority of the Board of Directors of Seller would be designated by such third party. The standstill provisions of this\nSection 7 shall automatically become applicable again if the third party announces its intent not to proceed with the proposed transaction described in\nSection 7(a) above; provided, however, that the Standstill Period shall not be extended beyond its original term. The expiration of the Standstill Period\nwill not terminate or otherwise affect any of the other provisions of this letter agreement.\n-4-\n8. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into any\nsuch agreement or transaction with the other Party. Each Party recognizes that, except as expressly provided in any legally binding written agreement\nbetween the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to negotiate with, and\nto enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims against the other Party\nor any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the other Party.\n9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement\nwill operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof\nor the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by\nmeans of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or\nprovisions being waived or amended.\n10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party\nor by any of such Party’s Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party\nwill also be entitled to equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this\nAgreement by the other Party or any of the other Party’s Representatives (without the need for posting a bond or providing other security). The\nequitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to\nall other remedies available at law or in equity to the Parties.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with\nthe laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents\nand submits to the jurisdiction of the state and federal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out\nof or relating to this Agreement; (b) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any state or federal court located in the State of Delaware; and (c) irrevocably and unconditionally\nwaives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or\nrelating to this Agreement that is brought in any state or federal court located in the State of Delaware has been brought in an inconvenient forum.\n12. Confidential Information. For purposes of this Agreement, the Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n-5-\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast or\nprojection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has, within the last thirty (30) days, been\nmade available to the Recipient or any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly upon\nany information of the type referred to in clause (a) of this Section 12;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause (a) of this Section 12 has been\nmade available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a Transaction involving the Parties, and the proposed\nterms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of the\nRecipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information was\nnot and is not reasonably known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other\nPerson with respect to any of such information;\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not reasonably known to the Recipient to be bound by any contractual or other\nobligation of confidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient independently of the disclosure of Confidential Information\nand without reference to or use of Confidential Information.\n13. Miscellaneous.\n(a) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) a subsidiary\nor other affiliate of such Party, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of\nany of such Party’s subsidiaries or other affiliates.\n-6-\n(b) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(c) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity\nor enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation\nor in any other jurisdiction.\n(d) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider is\nnot, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret,\ncopyright, trademark or other proprietary or intellectual property right. Neither the Recipient nor the Recipient’s Representatives shall file any patent\napplication containing any claim to any subject matter derived from the Confidential Information of the Provider.\n(e) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, (i) Provider, or the applicable direct or indirect subsidiary of Provider, is not\nwaiving and shall not be deemed to have waived or diminished its attorney-client privileges, work-product protections, or other applicable privileges or\ndoctrines as a result of disclosing any Confidential Information (including Confidential Information related to pending or threatened litigation) and\n(ii) it is acknowledged and agreed that the Parties have a commonality of interest with respect to such Confidential Information or action, suit,\nproceeding, investigation, arbitration or dispute and that it is the Parties’ mutual desire, intention and understanding that the sharing of such materials\nand other information is not intended to, and shall not, affect the confidentiality of any of such materials or other information or waive or diminish the\ncontinued protection of any of such materials or other information under the attorney-client privilege, work product doctrine or other applicable\nprivilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-client privilege, work product doctrine\nor other applicable privilege or doctrine shall remain entitled to protection thereunder and shall be entitled to protection under the joint defense\ndoctrine, and the Parties agree to take all measures necessary to preserve, to the fullest extent possible, the applicability of all such privileges or\ndoctrines.\n(f) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof.\n(g) This Agreement will terminate 12 months from the effective date of this Agreement, unless earlier terminated by either Party at any\ntime upon 30 days written notice to the other Party. The termination of this Agreement shall not relieve the Recipient of the\n-7-\nobligations hereunder with respect to Confidential Information of the Provider (which shall survive any such termination and continue for a period of\nthree years from the effective date of this Agreement, provided that such obligations with respect to any trade secrets of the Provider will survive\nindefinitely), or relieve either party of its obligations under Section 6 of this Agreement or relieve Buyer of its obligations under Section 7 of this\nAgreement (which shall survive for the stated durations thereof), and the provisions of Sections 3, 5, 8, 9, 10, 11 and 13 shall remain in full force and\neffect and survive any termination of this Agreement.\n(h) The Recipient agrees not to export, directly or indirectly, any U.S . source technical data acquired from the Provider or any products\nutilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.\n(i) The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto,\nincluding legal notices, shall be in the English language only.\n[Signature Page Next]\n-8-\nARMO BIOSCIENCES, INC.\nELI LILLY AND COMPANY\nBy: /s/ Peter Van Vlasselaer\nBy: /s/ Timothy C. Dolan\nTitle: CEO\nTitle: V.P., Business Development\nAddress: 575 Chesapeake Dr.\nAddress: Lilly Corporate Center\nRedwood City, CA 94063\nIndianapolis, IN
+bd9446287c6cd3222d532f945684145e.pdf	effective_date jurisdiction party term	EXHIBIT A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “ Agreement”) is entered into as of October , 2007 (the “Effective Date”), by and between AVI\nBioPharma, Inc., an Oregon corporation (the “Company”) and\n(the “Recipient”) (each, a “Party” and,\ncollectively, the “Parties”).\nRECITALS\nA.\nThe Recipient is a consultant to the Company and will be providing professional services to the Company in accordance with\nthat certain Professional Services Agreement dated as of the day of October 2007 (the “Consulting Agreement”).\nB.\nIn connection with the Consulting Agreement, the Company will disclose to the Recipient certain material, non-public\ninformation about the Company. As a condition precedent to providing such information to the Recipient, the Parties have agreed to enter into\nthis Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants expressed herein and other valuable consideration, the receipt and\nsufficiency of which are acknowledged, the Parties agree as follow\nI.\nDEFINITIONS. FOR THE PURPOSES OF THIS AGREEMENT:\nA.\n“Affiliate” of a Party means any entity that a Party directly or indirectly controls, or is controlled by, including but not limited\nto employees, agents, and entities.\nB.\n“Confidential Information” means any business, marketing, technical, or other information in tangible or intangible form,\ndisclosed by the Company to the Recipient that, at the time of disclosure, is designated as confidential (or like designation), is\ndisclosed in circumstances of confidence, or would be understood by the Parties (or their Affiliates), exercising reasonable\nbusiness judgment, to be confidential, specifically including Company business plans, product concepts, technical know-how,\nmethods of and other information relating to operations, development strategies, distribution arrangements, financial data,\nmarketing plans, and business practices, policies, or objectives.\nII.\nDISCLOSURE, USE RESTRICTIONS AND PROPRIETARY RIGHTS.\nA.\nDisclosure and Use.\n1.\nAny Confidential Information received by the Recipient shall be retained in confidence, disclosed only to Affiliates\nsolely on a need to know basis, and used only in accordance with this Agreement. The Recipient shall use\nat least the same degree of care as it uses to protect his/its own confidential information of a similar nature, but no less\nthan reasonable care, to prevent the unauthorized use or disclosure of the Confidential Information. The obligations\nof confidence set forth in this Agreement shall extend to any of the Recipient’s Affiliates, including the Recipient’s\nattorneys, advisors, directors, executive officers and employees that may receive Confidential Information. The\nRecipient shall notify its attorney(s), advisors, directors, officers and Affiliates of the requirements of this Agreement\nand require that such persons comply with the requirements of this Agreement.\n2.\nIn accordance with Section 2.4 below, the Recipient shall notify the Company immediately upon discovery of any\nunauthorized use or disclosure of Confidential Information or any other breach of this Agreement by the Recipient, its\nofficers, directors, advisors, attorneys, employees, or Affiliates, and will cooperate with the Company to assist the\nCompany to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.\nB.\nExemptions. The Recipient shall not be bound by the obligations restricting disclosure and use set forth in this Agreement\nwith respect to Confidential Information, or any part thereof, which: (i) was known by the Recipient prior to disclosure, except\nif such Confidential Information, or any part thereof, became known to Recipient as a result of or in connection with prior\npositions or roles Recipient had with the Company that allowed Recipient to know or become exposed to or aware of such\nConfidential Information or any part thereof, in which case such Confidential Information or such part thereof shall be deemed\nto be Confidential Information subject to subparagraphs (ii), (iii), (iv) and (v) herein; (ii) was lawfully in the public domain\nprior to its disclosure, or becomes publicly available other than through a breach of this Agreement; (iii) was disclosed to the\nRecipient by a third party, provided such third party is not in breach of any confidentiality obligation in respect of such\ninformation; (iv) is independently developed by the Recipient, where the burden is on the Recipient to prove independent\ndevelopment; or (v) is disclosed when such disclosure is compelled pursuant to legal, judicial or administrative proceedings, or\notherwise required by law, subject to the Recipient giving reasonable prior notice to the Company Party to allow the Company\nto seek protective court orders. The foregoing exemptions shall extend to any Affiliates that receive or have received\nConfidential Information.\nC.\nProprietary Rights. The Recipient (including its Affiliates) shall not acquire any rights, express or implied, in the\nConfidential Information of the Company (including its Affiliates), except for the limited use specified in this Agreement. The\nConfidential Information, including all right, title and interest therein, remain the sole and exclusive property of the Company\n(and its Affiliates).\nD.\nCompulsory Disclosure. If the Recipient is legally compelled to disclose any of the Confidential Information, the Recipient\nshall promptly provide written notice to the Company to enable the Company (at its sole cost and expense) to seek a protective\norder or other appropriate remedy to avoid public or third-party disclosure of its Confidential Information. If such protective\norder or other remedy is not obtained, the Recipient shall furnish only so much of the Confidential Information that it is legally\ncompelled to disclose, and shall exercise its commercially reasonable efforts to obtain reliable assurance that confidential\ntreatment will be accorded the Confidential Information. The Recipient shall cooperate with and assist the Company, at the\nCompany’s expense, in seeking any protective order or other relief requested pursuant to this Section 2.4 .\nIII.\nREMEDIES. THE RECIPIENT AGREES THAT ANY VIOLATION OR THREATENED VIOLATION OF THIS\nAGREEMENT WILL CAUSE IRREPARABLE HARM TO THE COMPANY, ENTITLING THE COMPANY TO SEEK\nINJUNCTIVE RELIEF IN ADDITION TO ALL OTHER LEGAL REMEDIES.\nIV.\nTERM OF OBLIGATION.\nA.\nTerm. The confidentiality obligations set forth in this Agreement shall continue with regard to an item of information as long\nas that information continues to meet the definition of “Confidential Information” and is not exempt under Section 2.2.\nB.\nReturn of Confidential Information. At any time upon written request by the Company, the Recipient shall return or destroy\nall documents or other materials embodying Confidential Information, shall retain no copies thereof, and shall certify in writing\nthat such destruction or return has been accomplished. The confidentiality obligations set forth in this Agreement shall survive\nany termination of the Agreement.\nV.\nSECURITIES LAWS. THE RECIPIENT HEREBY ACKNOWLEDGES THAT THE COMPANY IS A PUBLICLY TRADED\nCOMPANY. THE RECIPIENT HEREBY ACKNOWLEDGES THAT HE IS AWARE THAT FEDERAL AND STATE SECURITIES\nLAWS PROHIBIT ANY PERSON WHO HAS RECEIVED MATERIAL, NON-PUBLIC INFORMATION (INFORMATION ABOUT\nTHE COMPANY OR ITS BUSINESS THAT IS NOT GENERALLY AVAILABLE TO THE PUBLIC) CONCERNING THE\nCOMPANY, INCLUDING, WITHOUT LIMITATION, THE MATTERS THAT ARE THE SUBJECT OF THIS AGREEMENT, FROM\nPURCHASING OR SELLING SECURITIES OF THE COMPANY WHILE IN POSSESSION OF SUCH NON-PUBLIC\nINFORMATION, AND FROM COMMUNICATING THAT INFORMATION TO ANY OTHER PERSON WHO MAY PURCHASE\nOR SELL SECURITIES OF THE COMPANY OR OTHERWISE VIOLATE SUCH LAWS. THE RECIPIENT SPECIFICALLY\nACKNOWLEDGE THESE OBLIGATIONS AND AGREES TO BE BOUND BY THEM.\nVI.\nGENERAL.\nA.\nWaiver. The failure of the Company to claim a breach of any term of this Agreement shall not constitute a waiver of such\nbreach or the right of the Company to enforce any subsequent breach of such term.\nB.\nAssignment. This Agreement shall be binding on and inure to the benefit of each Party and their respective successors and\nassigns.\nC.\nSeverability. In the event that any provision of this Agreement is found to be invalid, void or unenforceable, the Parties agree\nthat unless such provision materially affects the intent and purpose of this Agreement, such invalidity, void ability or\nunenforceability shall not affect the validity of this Agreement nor the remaining provisions herein.\nD.\nGoverning Law. This Agreement shall be governed by the laws of the State of Oregon, without regard to its conflict of law\nprinciples. The jurisdiction for any legal action shall be exclusively a state or federal court in Multnomah County, Oregon.\nE.\nEntire Agreement. This Agreement constitutes the entire agreement between the parties on the subject matter hereof and\nsupersedes all prior agreements, communications and understandings of any nature whatsoever, oral or written. This\nAgreement may not be modified or waived orally and may be modified only in a writing signed by a duly authorized\nrepresentative of both parties.\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives and to be\neffective on the Effective Date.\nCompany\nRecipient\nAVI BioPharma, Inc.\nBy:\nPrint Name: K. Michael Forrest\nPrint Name:\nTitle: Interim CEO\nDate\nDate:	EXHIBIT A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “Agreement”) is entered into as of October , 2007 (the “Effective Date”), by and between AVI\nBioPharma, Inc., an Oregon corporation (the “Company”) and (the “Recipient”) (each, a “Party” and,\ncollectively, the “Parties™).\nRECITALS\nA. The Recipient is a consultant to the Company and will be providing professional services to the Company in accordance with\nthat certain Professional Services Agreement dated as of the  day of October 2007 (the “Consulting Agreement”).\nB. In connection with the Consulting Agreement, the Company will disclose to the Recipient certain material, non-public\ninformation about the Company. As a condition precedent to providing such information to the Recipient, the Parties have agreed to enter into\nthis Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants expressed herein and other valuable consideration, the receipt and\nsufficiency of which are acknowledged, the Parties agree as follow\nL DEFINITIONS. FOR THE PURPOSES OF THIS AGREEMENT:\nA. “Affiliate” of a Party means any entity that a Party directly or indirectly controls, or is controlled by, including but not limited\nto employees, agents, and entities.\nII. “Confidential Information” means any business, marketing, technical, or other information in tangible or intangible form,\ndisclosed by the Company to the Recipient that, at the time of disclosure, is designated as confidential (or like designation), is\ndisclosed in circumstances of confidence, or would be understood by the Parties (or their Affiliates), exercising reasonable\nbusiness judgment, to be confidential, specifically including Company business plans, product concepts, technical know-how,\nmethods of and other information relating to operations, development strategies, distribution arrangements, financial data,\nmarketing plans, and business practices, policies, or objectives.\nDISCLOSURE, USE RESTRICTIONS AND PROPRIETARY RIGHTS. Disclosure and Use.\n1. Any Confidential Information received by the Recipient shall be retained in confidence, disclosed only to Affiliates\nsolely on a need to know basis, and used only in accordance with this Agreement. The Recipient shall use\n \n \nII1. at least the same degree of care as it uses to protect his/its own confidential information of a similar nature, but no less\nthan reasonable care, to prevent the unauthorized use or disclosure of the Confidential Information. The obligations\nof confidence set forth in this Agreement shall extend to any of the Recipient’s Affiliates, including the Recipient’s\nattorneys, advisors, directors, executive officers and employees that may receive Confidential Information. The\nRecipient shall notify its attorney(s), advisors, directors, officers and Affiliates of the requirements of this Agreement\nand require that such persons comply with the requirements of this Agreement.\n2. In accordance with Section 2.4 below, the Recipient shall notify the Company immediately upon discovery of any\nunauthorized use or disclosure of Confidential Information or any other breach of this Agreement by the Recipient, its\nofficers, directors, advisors, attorneys, employees, or Affiliates, and will cooperate with the Company to assist the\nCompany to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.\nExemptions. The Recipient shall not be bound by the obligations restricting disclosure and use set forth in this Agreement\nwith respect to Confidential Information, or any part thereof, which: (i) was known by the Recipient prior to disclosure, except\nif such Confidential Information, or any part thereof, became known to Recipient as a result of or in connection with prior\npositions or roles Recipient had with the Company that allowed Recipient to know or become exposed to or aware of such\nConfidential Information or any part thereof, in which case such Confidential Information or such part thereof shall be deemed\nto be Confidential Information subject to subparagraphs (ii), (iii), (iv) and (v) herein; (ii) was lawfully in the public domain\nprior to its disclosure, or becomes publicly available other than through a breach of this Agreement; (iii) was disclosed to the\nRecipient by a third party, provided such third party is not in breach of any confidentiality obligation in respect of such\ninformation; (iv) is independently developed by the Recipient, where the burden is on the Recipient to prove independent\ndevelopment; or (v) is disclosed when such disclosure is compelled pursuant to legal, judicial or administrative proceedings, or\notherwise required by law, subject to the Recipient giving reasonable prior notice to the Company Party to allow the Company\nto seek protective court orders. The foregoing exemptions shall extend to any Affiliates that receive or have received\nConfidential Information.\nProprietary Rights. The Recipient (including its Affiliates) shall not acquire any rights, express or implied, in the\nConfidential Information of the Company (including its Affiliates), except for the limited use specified in this Agreement. The\nConfidential Information, including all right, title and interest therein, remain the sole and exclusive property of the Company\n(and its Affiliates).\nCompulsory Disclosure. If the Recipient is legally compelled to disclose any of the Confidential Information, the Recipient\nshall promptly provide written notice to the Company to enable the Company (at its sole cost and expense) to seek a protective\norder or other appropriate remedy to avoid public or third-party disclosure of its Confidential Information. If such protective\norder or other remedy is not obtained, the Recipient shall furnish only so much of the Confidential Information that it is legally\ncompelled to disclose, and shall exercise its commercially reasonable efforts to obtain reliable assurance that confidential\ntreatment will be accorded the Confidential Information. The Recipient shall cooperate with and assist the Company, at the\nCompany’s expense, in seeking any protective order or other relief requested pursuant to this Section 2.4.\nREMEDIES. THE RECIPIENT AGREES THAT ANY VIOLATION OR THREATENED VIOLATION OF THIS AGREEMENT WILL CAUSE IRREPARABLE HARM TO THE COMPANY, ENTITLING THE COMPANY TO SEEK INJUNCTIVE RELIEF IN ADDITION TO ALL OTHER LEGAL REMEDIES. IV. TERM OF OBLIGATION. Term. The confidentiality obligations set forth in this Agreement shall continue with regard to an item of information as long\nas that information continues to meet the definition of “Confidential Information” and is not exempt under Section 2.2.\nB. Return of Confidential Information. At any time upon written request by the Company, the Recipient shall return or destroy\nall documents or other materials embodying Confidential Information, shall retain no copies thereof, and shall certify in writing\nthat such destruction or return has been accomplished. The confidentiality obligations set forth in this Agreement shall survive\nany termination of the Agreement.\nV. SECURITIES LAWS. THE RECIPIENT HEREBY ACKNOWLEDGES THAT THE COMPANY IS A PUBLICLY TRADED\nCOMPANY. THE RECIPIENT HEREBY ACKNOWLEDGES THAT HE IS AWARE THAT FEDERAL AND STATE SECURITIES\nLAWS PROHIBIT ANY PERSON WHO HAS RECEIVED MATERIAL, NON-PUBLIC INFORMATION (INFORMATION ABOUT\nTHE COMPANY OR ITS BUSINESS THAT IS NOT GENERALLY AVAILABLE TO THE PUBLIC) CONCERNING THE\nCOMPANY, INCLUDING, WITHOUT LIMITATION, THE MATTERS THAT ARE THE SUBJECT OF THIS AGREEMENT, FROM\nPURCHASING OR SELLING SECURITIES OF THE COMPANY WHILE IN POSSESSION OF SUCH NON-PUBLIC\nINFORMATION, AND FROM COMMUNICATING THAT INFORMATION TO ANY OTHER PERSON WHO MAY PURCHASE\nOR SELL SECURITIES OF THE COMPANY OR OTHERWISE VIOLATE SUCH LAWS. THE RECIPIENT SPECIFICALLY\nACKNOWLEDGE THESE OBLIGATIONS AND AGREES TO BE BOUND BY THEM.\n \nVL GENERAL.\nA. Waiver. The failure of the Company to claim a breach of any term of this Agreement shall not constitute a waiver of such\nbreach or the right of the Company to enforce any subsequent breach of such term.\nB. Assignment. This Agreement shall be binding on and inure to the benefit of each Party and their respective successors and\nassigns.\nC. Severability. In the event that any provision of this Agreement is found to be invalid, void or unenforceable, the Parties agree\nthat unless such provision materially affects the intent and purpose of this Agreement, such invalidity, void ability or\nunenforceability shall not affect the validity of this Agreement nor the remaining provisions herein.\nD. Governing Law. This Agreement shall be governed by the laws of the State of Oregon, without regard to its conflict of law\nprinciples. The jurisdiction for any legal action shall be exclusively a state or federal court in Multnomah County, Oregon.\nE. Entire Agreement. This Agreement constitutes the entire agreement between the parties on the subject matter hereof and\nsupersedes all prior agreements, communications and understandings of any nature whatsoever, oral or written. This\nAgreement may not be modified or waived orally and may be modified only in a writing signed by a duly authorized\nrepresentative of both parties.\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives and to be\neffective on the Effective Date.\nCompany Recipient\nAVI BioPharma, Inc.\nBy:\nPrint Name: K. Michael Forrest Print Name:\nTitle: Interim CEO Date\nDate:\n	EXHIBIT A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this "Agreement") is entered into as of October 2007 (the "Effective Date"), by and between AVI\nBioPharma, Inc., an Oregon corporation (the "Company") and\n(the "Recipient") (each, a "Party" and,\ncollectively, the "Parties").\nRECITALS\nA.\nThe Recipient is a consultant to the Company and will be providing professional services to the Company in accordance with\nthat certain Professional Services Agreement dated as of the day of October 2007 (the "Consulting Agreement").\nB.\nIn connection with the Consulting Agreement, the Company will disclose to the Recipient certain material, non-public\ninformation about the Company. As a condition precedent to providing such information to the Recipient, the Parties have agreed to enter into\nthis Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants expressed herein and other valuable consideration, the receipt and\nsufficiency of which are acknowledged, the Parties agree as follow\nI.\nDEFINITIONS. FOR THE PURPOSES OF THIS AGREEMENT:\nA.\n"Affiliate" of a Party means any entity that a Party directly or indirectly controls, or is controlled by, including but not limited\nto employees, agents, and entities.\nB.\n"Confidential Information" means any business, marketing, technical, or other information in tangible or intangible form,\ndisclosed by the Company to the Recipient that, at the time of disclosure, is designated as confidential (or like designation), is\ndisclosed in circumstances of confidence, or would be understood by the Parties (or their Affiliates), exercising reasonable\nbusiness judgment, to be confidential, specifically including Company business plans, product concepts, technical know-how,\nmethods of and other information relating to operations, development strategies, distribution arrangements, financial data,\nmarketing plans, and business practices, policies, or objectives.\nII.\nDISCLOSURE, USE RESTRICTIONS AND PROPRIETARY RIGHTS.\nA.\nDisclosure and Use.\n1.\nAny Confidential Information received by the Recipient shall be retained in confidence, disclosed only to Affiliates\nsolely on a need to know basis, and used only in accordance with this Agreement. The Recipient shall use\nat least the same degree of care as it uses to protect his/its own confidential information of a similar nature, but no less\nthan reasonable care, to prevent the unauthorized use or disclosure of the Confidential Information. The obligations\nof confidence set forth in this Agreement shall extend to any of the Recipient's Affiliates, including the Recipient's\nattorneys, advisors, directors, executive officers and employees that may receive Confidentia Information. The\nRecipient shall notify its attorney(s), advisors, directors, officers and Affiliates of the requirements of this Agreement\nand require that such persons comply with the requirements of this Agreement.\n2.\nIn accordance with Section 2.4 below, the Recipient shall notify the Company immediately upon discovery of any\nunauthorized use or disclosure of Confidential Information or any other breach of this Agreement by the Recipient, its\nofficers, directors, advisors, attorneys, employees, or Affiliates, and will cooperate with the Company to assist the\nCompany to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.\nB.\nExemptions. The Recipient shall not be bound by the obligations restricting disclosure and use set forth in this Agreement\nwith respect to Confidential Information, or any part thereof, which: (i) was known by the Recipient prior to disclosure, except\nif such Confidential Information, or any part thereof, became known to Recipient as a result of or in connection with prior\npositions or roles Recipient had with the Company that allowed Recipient to know or become exposed to or aware of such\nConfidential Information or any part thereof, in which case such Confidential Information or such part thereof shall be deemed\nto be Confidential Information subject to subparagraphs (ii), (iii), (iv) and (v) herein; (ii) was lawfully in the public domain\nprior to its disclosure, or becomes publicly available other than through a breach of this Agreement; (iii) was disclosed to the\nRecipient by a third party, provided such third party is not in breach of any confidentiality obligation in respect of such\ninformation; (iv) is independently developed by the Recipient, where the burden is on the Recipient to prove independent\ndevelopment; or (v) is disclosed when such disclosure is compelled pursuant to legal, judicial or administrative proceedings, or\notherwise required by law, subject to the Recipient giving reasonable prior notice to the Company Party to allow the Company\nto seek protective court orders. The foregoing exemptions shall extend to any Affiliates that receive or have received\nConfidential Information.\nC.\nProprietary Rights. The Recipient (including its Affiliates) shall not acquire any rights, express or implied, in the\nConfidentia Information of the Company (including its Affiliates), except for the limited use specified in this Agreement. The\nConfidential Information, including all right, title and interest therein, remain the sole and exclusive property of the Company\n(and its Affiliates).\nD.\nCompulsory Disclosure. If the Recipient is legally compelled to disclose any of the Confidential Information the Recipient\nshall promptly provide written notice to the Company to enable the Company (at its sole cost and expense) to seek a protective\norder or other appropriate remedy to avoid public or third-party disclosure of its Confidential Information. If such protective\norder or other remedy is not obtained, the Recipient shall furnish only so much of the Confidential Information that it is legally\ncompelled to disclose, and shall exercise its commercially reasonable efforts to obtain reliable assurance that confidential\ntreatment will be accorded the Confidential Information. The Recipient shall cooperate with and assist the Company, at the\nCompany's expense, in seeking any protective order or other relief requested pursuant to this Section 2.4.\nIII.\nREMEDIES. THE RECIPIENT AGREES THAT ANY VIOLATION OR THREATENED VIOLATION OF THIS\nAGREEMENT WILL CAUSE IRREPARABLE HARM TO THE COMPANY, ENTITLING THE COMPANY TO SEEK\nINJUNCTIVE RELIEF IN ADDITION TO ALL OTHER LEGAL REMEDIES.\nIV.\nTERM OF OBLIGATION.\nA.\nTerm. The confidentiality obligations set forth in this Agreement shall continue with regard to an item of information as long\nas that information continues to meet the definition of "Confidential Information" and is not exempt under Section 2.2.\nB.\nReturn of Confidential Information. At any time upon written request by the Company, the Recipient shall return or destroy\nall\ndocuments or other materials embodying Confidential Information, shall retain no copies thereof, and shall certify in writing\nthat such destruction or return has been accomplished. The confidentiality obligations set forth in this Agreement shall survive\nany termination of the Agreement.\nV.\nSECURITIES LAWS. THE RECIPIENT HEREBY ACKNOWLEDGES THAT THE COMPANY IS A PUBLICLY TRADED\nCOMPANY. THE RECIPIENT HEREBY ACKNOWLEDGES THAT HE IS AWARE THAT FEDERAL AND STATE SECURITIES\nLAWS PROHIBIT ANY PERSON WHO HAS RECEIVED MATERIAL, NON-PUBLIC INFORMATION (INFORMATION ABOUT\nTHE\nCOMPANY OR ITS BUSINESS THAT IS NOT GENERALLY AVAILABLE TO THE PUBLIC) CONCERNING THE\nCOMPANY, INCLUDING, WITHOUT LIMITATION, THE MATTERS THAT ARE THE SUBJECT OF THIS AGREEMENT, FROM\nPURCHASING OR SELLING SECURITIES OF THE COMPANY WHILE IN POSSESSION OF SUCH NON-PUBLIC\nINFORMATION, AND FROM COMMUNICATING THAT INFORMATION TO ANY OTHER PERSON WHO MAY PURCHASE\nOR SELL SECURITIES OF THE COMPANY OR OTHERWISE VIOLATE SUCH LAWS. THE RECIPIENT SPECIFICALLY\nACKNOWLEDGE THESE OBLIGATIONS AND AGREES TO BE BOUND BY THEM.\nVI.\nGENERAL.\nA.\nWaiver. The failure of the Company to claim a breach of any term of this Agreement shall not constitute a waiver of such\nbreach or the right of the Company to enforce any subsequent breach of such term.\nB.\nAssignment. This Agreement shall be binding on and inure to the benefit of each Party and their respective successors and\nassigns.\nC.\nSeverability. In the event that any provision of this Agreement is found to be invalid, void or unenforceable, the Parties agree\nthat unless such provision materially affects the intent and purpose of this Agreement, such invalidity, void ability or\nunenforceability shall not affect the validity of this Agreement nor the remaining provisions herein.\nD.\nGoverning Law. This Agreement shall be governed by the laws of the State of Oregon, without regard to its conflict of law\nprinciples. The jurisdiction for any legal action shall be exclusively a state or federal court in Multnomah County, Oregon.\nE.\nEntire Agreement. This Agreement constitutes the entire agreement between the parties on the subject matter hereof and\nsupersedes all prior agreements, communications and understandings of any nature whatsoever, oral or written. This\nAgreement may not be modified or waived orally and may be modified only in a writing signed by a duly authorized\nrepresentative of both parties.\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives and to be\neffective on the Effective Date.\nCompany\nRecipient\nAVI BioPharma, Inc.\nBy:\nPrint Name: K. Michael Forrest\nPrint Name:\nTitle: Interim CEO\nDate\nDate:	EXHIBIT A\nNON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (this “ Agreement”) is entered into as of October , 2007 (the “Effective Date”), by and between AVI\nBioPharma, Inc., an Oregon corporation (the “Company”) and\n(the “Recipient”) (each, a “Party” and,\ncollectively, the “Parties”).\nRECITALS\nA.\nThe Recipient is a consultant to the Company and will be providing professional services to the Company in accordance with\nthat certain Professional Services Agreement dated as of the day of October 2007 (the “Consulting Agreement”).\nB.\nIn connection with the Consulting Agreement, the Company will disclose to the Recipient certain material, non-public\ninformation about the Company. As a condition precedent to providing such information to the Recipient, the Parties have agreed to enter into\nthis Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants expressed herein and other valuable consideration, the receipt and\nsufficiency of which are acknowledged, the Parties agree as follow\nI.\nDEFINITIONS. FOR THE PURPOSES OF THIS AGREEMENT:\nA.\n“Affiliate” of a Party means any entity that a Party directly or indirectly controls, or is controlled by, including but not limited\nto employees, agents, and entities.\nB.\n“Confidential Information” means any business, marketing, technical, or other information in tangible or intangible form,\ndisclosed by the Company to the Recipient that, at the time of disclosure, is designated as confidential (or like designation), is\ndisclosed in circumstances of confidence, or would be understood by the Parties (or their Affiliates), exercising reasonable\nbusiness judgment, to be confidential, specifically including Company business plans, product concepts, technical know-how,\nmethods of and other information relating to operations, development strategies, distribution arrangements, financial data,\nmarketing plans, and business practices, policies, or objectives.\nII.\nDISCLOSURE, USE RESTRICTIONS AND PROPRIETARY RIGHTS.\nA.\nDisclosure and Use.\n1.\nAny Confidential Information received by the Recipient shall be retained in confidence, disclosed only to Affiliates\nsolely on a need to know basis, and used only in accordance with this Agreement. The Recipient shall use\nat least the same degree of care as it uses to protect his/its own confidential information of a similar nature, but no less\nthan reasonable care, to prevent the unauthorized use or disclosure of the Confidential Information. The obligations\nof confidence set forth in this Agreement shall extend to any of the Recipient’s Affiliates, including the Recipient’s\nattorneys, advisors, directors, executive officers and employees that may receive Confidential Information. The\nRecipient shall notify its attorney(s), advisors, directors, officers and Affiliates of the requirements of this Agreement\nand require that such persons comply with the requirements of this Agreement.\n2.\nIn accordance with Section 2.4 below, the Recipient shall notify the Company immediately upon discovery of any\nunauthorized use or disclosure of Confidential Information or any other breach of this Agreement by the Recipient, its\nofficers, directors, advisors, attorneys, employees, or Affiliates, and will cooperate with the Company to assist the\nCompany to regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.\nB.\nExemptions. The Recipient shall not be bound by the obligations restricting disclosure and use set forth in this Agreement\nwith respect to Confidential Information, or any part thereof, which: (i) was known by the Recipient prior to disclosure, except\nif such Confidential Information, or any part thereof, became known to Recipient as a result of or in connection with prior\npositions or roles Recipient had with the Company that allowed Recipient to know or become exposed to or aware of such\nConfidential Information or any part thereof, in which case such Confidential Information or such part thereof shall be deemed\nto be Confidential Information subject to subparagraphs (ii), (iii), (iv) and (v) herein; (ii) was lawfully in the public domain\nprior to its disclosure, or becomes publicly available other than through a breach of this Agreement; (iii) was disclosed to the\nRecipient by a third party, provided such third party is not in breach of any confidentiality obligation in respect of such\ninformation; (iv) is independently developed by the Recipient, where the burden is on the Recipient to prove independent\ndevelopment; or (v) is disclosed when such disclosure is compelled pursuant to legal, judicial or administrative proceedings, or\notherwise required by law, subject to the Recipient giving reasonable prior notice to the Company Party to allow the Company\nto seek protective court orders. The foregoing exemptions shall extend to any Affiliates that receive or have received\nConfidential Information.\nC.\nProprietary Rights. The Recipient (including its Affiliates) shall not acquire any rights, express or implied, in the\nConfidential Information of the Company (including its Affiliates), except for the limited use specified in this Agreement. The\nConfidential Information, including all right, title and interest therein, remain the sole and exclusive property of the Company\n(and its Affiliates).\nD.\nCompulsory Disclosure. If the Recipient is legally compelled to disclose any of the Confidential Information, the Recipient\nshall promptly provide written notice to the Company to enable the Company (at its sole cost and expense) to seek a protective\norder or other appropriate remedy to avoid public or third-party disclosure of its Confidential Information. If such protective\norder or other remedy is not obtained, the Recipient shall furnish only so much of the Confidential Information that it is legally\ncompelled to disclose, and shall exercise its commercially reasonable efforts to obtain reliable assurance that confidential\ntreatment will be accorded the Confidential Information. The Recipient shall cooperate with and assist the Company, at the\nCompany’s expense, in seeking any protective order or other relief requested pursuant to this Section 2.4 .\nIII.\nREMEDIES. THE RECIPIENT AGREES THAT ANY VIOLATION OR THREATENED VIOLATION OF THIS\nAGREEMENT WILL CAUSE IRREPARABLE HARM TO THE COMPANY, ENTITLING THE COMPANY TO SEEK\nINJUNCTIVE RELIEF IN ADDITION TO ALL OTHER LEGAL REMEDIES.\nIV.\nTERM OF OBLIGATION.\nA.\nTerm. The confidentiality obligations set forth in this Agreement shall continue with regard to an item of information as long\nas that information continues to meet the definition of “Confidential Information” and is not exempt under Section 2.2.\nB.\nReturn of Confidential Information. At any time upon written request by the Company, the Recipient shall return or destroy\nall documents or other materials embodying Confidential Information, shall retain no copies thereof, and shall certify in writing\nthat such destruction or return has been accomplished. The confidentiality obligations set forth in this Agreement shall survive\nany termination of the Agreement.\nV.\nSECURITIES LAWS. THE RECIPIENT HEREBY ACKNOWLEDGES THAT THE COMPANY IS A PUBLICLY TRADED\nCOMPANY. THE RECIPIENT HEREBY ACKNOWLEDGES THAT HE IS AWARE THAT FEDERAL AND STATE SECURITIES\nLAWS PROHIBIT ANY PERSON WHO HAS RECEIVED MATERIAL, NON-PUBLIC INFORMATION (INFORMATION ABOUT\nTHE COMPANY OR ITS BUSINESS THAT IS NOT GENERALLY AVAILABLE TO THE PUBLIC) CONCERNING THE\nCOMPANY, INCLUDING, WITHOUT LIMITATION, THE MATTERS THAT ARE THE SUBJECT OF THIS AGREEMENT, FROM\nPURCHASING OR SELLING SECURITIES OF THE COMPANY WHILE IN POSSESSION OF SUCH NON-PUBLIC\nINFORMATION, AND FROM COMMUNICATING THAT INFORMATION TO ANY OTHER PERSON WHO MAY PURCHASE\nOR SELL SECURITIES OF THE COMPANY OR OTHERWISE VIOLATE SUCH LAWS. THE RECIPIENT SPECIFICALLY\nACKNOWLEDGE THESE OBLIGATIONS AND AGREES TO BE BOUND BY THEM.\nVI.\nGENERAL.\nA.\nWaiver. The failure of the Company to claim a breach of any term of this Agreement shall not constitute a waiver of such\nbreach or the right of the Company to enforce any subsequent breach of such term.\nB.\nAssignment. This Agreement shall be binding on and inure to the benefit of each Party and their respective successors and\nassigns.\nC.\nSeverability. In the event that any provision of this Agreement is found to be invalid, void or unenforceable, the Parties agree\nthat unless such provision materially affects the intent and purpose of this Agreement, such invalidity, void ability or\nunenforceability shall not affect the validity of this Agreement nor the remaining provisions herein.\nD.\nGoverning Law. This Agreement shall be governed by the laws of the State of Oregon, without regard to its conflict of law\nprinciples. The jurisdiction for any legal action shall be exclusively a state or federal court in Multnomah County, Oregon.\nE.\nEntire Agreement. This Agreement constitutes the entire agreement between the parties on the subject matter hereof and\nsupersedes all prior agreements, communications and understandings of any nature whatsoever, oral or written. This\nAgreement may not be modified or waived orally and may be modified only in a writing signed by a duly authorized\nrepresentative of both parties.\nIN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives and to be\neffective on the Effective Date.\nCompany\nRecipient\nAVI BioPharma, Inc.\nBy:\nPrint Name: K. Michael Forrest\nPrint Name:\nTitle: Interim CEO\nDate\nDate:
+c0aa169f5121198b37859459b63b8707.pdf	effective_date jurisdiction party term	EX-10.35 2 a2230860zex-10_35.htm EX-10.35\nExhibit 10.35\nAMENDED AND RESTATED NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS AMENDED AND RESTATED NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered\ninto this\nth day of\n,\n20 , by and between The Travelers Companies, Inc., a Minnesota corporation, including its present and future\naffiliated entities (collectively, the “Company”), and XXXX (the “Employee”).\nWITNESSETH:\nWHEREAS, the Employee is employed by the Company; and\nWHEREAS, the Company is engaged in the business of underwriting and selling insurance and insurance-related products throughout\nthe United States.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants and obligations hereinafter set forth, the parties agree\nas follows:\nSECTION 1.\nCONSIDERATION.\n(a)\nAs consideration for the execution of this Agreement, the Employee acknowledges receipt of the amount of Five Thousand\nDollars ($5,000.00) (“the Consideration”), to the extent not previously paid in connection with the execution of a prior version of this\nAgreement, which constitutes good, valuable and independent consideration for all of Employee’s covenants and obligations in this Agreement\nand is above and beyond any compensation Employee is entitled to receive from the Company.\n(b)\nAs further consideration for the execution of this Agreement, the Employee shall be eligible to participate in and receive the\nbenefits of the executive severance plan as set forth in Schedule B of The Travelers Severance Plan (as amended and restated effective January 1,\n2015) (the “Severance Plan”), in the event Employee is involuntarily terminated because of a reduction in force, involuntarily terminated for\nreasons other than Cause (as defined in Section 2) or asked to take a substantial demotion, and otherwise pursuant to the terms and conditions of\nthe Severance Plan and regardless of any amendment to or termination of the Severance Plan, except that for the purpose of Schedule B, the\nnumber of months of severance benefit shall in no event be less than 21 months and the “total monthly cash compensation” shall in no event be\nless than one twelfth (1/12) of the Employee’s base salary in effect at the time of his/her termination of employment (“final base salary”) plus the\ngreater of (i) one twelfth (1/12) of the average of his/her two most recent cash payments under the annual incentive compensation plan of the\nCompany, or (ii) one twelfth (1/12) of 125% of the final base salary for any Employee who is serving the Employer in a position of Executive\nVice President or equivalent (as determined by Company and the position of Vice Chairman is\ndeemed to be equivalent to Executive Vice President); and 110% of the final base salary of any Employee who is serving the Employer in a\nposition of Senior Vice President or equivalent (as determined by Company). Further, in order to be eligible for benefits under the Severance\nPlan, Employee will be required to, among other things, execute a Waiver and Release, as defined in the Severance Plan, in a form satisfactory to\nCompany. (The current standard non-solicitation clauses included in the Waiver and Release are attached and incorporated herein for your\nreference as Exhibit A.) Nothing in this Agreement is intended or may be interpreted to amend or revise the Severance Plan, except as set forth\nand applicable herein. Schedule B of the Severance Plan, as in effect as of the date hereof (“Schedule B”), is incorporated herein by reference.\nSuch Schedule B, together with the above described enhanced benefit set forth a schedule of minimum severance for Employee and other\nmembers of the Management Committee. To the extent the Company revises the existing Severance Plan to increase the benefits, Employee will\nbe entitled to the greater of (i) the new increased benefits under the Severance Plan or (ii) the Severance Plan benefits in existence at the time this\nAgreement was executed, in each case, with any additional enhancements as applicable pursuant to this Section 1(b). To the extent Company\nrevises the Severance Plan to decrease benefits or adopts a Severance Plan which allows for a benefit to be paid that is less than that set forth in\nSchedule B, Employee shall be entitled to the benefits set forth in Schedule B, as modified by this Section 1(b).\nSECTION 2.\nDEFINITIONS\nFor purposes of this Agreement, the following terms are defined as follows:\n(a)\n“Cause” shall mean Employee’s conviction of any felony, Employee’s willful misconduct in connection with the performance\nof Employee’s duties with Company, or Employee’s taking illegal action in Employee’s business or personal life that harms the reputation or\ndamages the good name of Company.\n(b)\n“Change of Control” shall mean any of the following (i) members of the Board of Directors on the date hereof (“Incumbent\nBoard”) cease for any reason to constitute a majority thereof, provided that persons subsequently becoming directors with the approval of\ndirectors constituting at least two-thirds (2/3) of the Incumbent Board (either by a specific vote or by approval of the proxy statement of the\nCompany in which such person is named as a nominee for director, without written objection to such nomination) will be considered as members\nof the Incumbent Board provided, however, that no individual initially elected or nominated as a director of the Company as a result of an actual\nor threatened election contest (as described in Rule 14a-11 under the Securities Exchange Act of 1934 (the “Act”)) (“Election Contest”) or any\nother actual or threatened solicitation of proxies or consents by or on behalf of any “person” (as such term is defined in Section 3(a)(9) of the\nAct) other than the Board (“Proxy Contest”), including by reason of any agreement intended to avoid or settle any Election Contest or Proxy\nContest, shall be deemed to be a member of the Incumbent Board, or (ii) any person as defined in the Act, other than the Company, a Company\nsubsidiary, any employee benefit plan (or related trust) sponsored or maintained by the Company or any\n2\nCompany subsidiary, any employee or any group of persons including an employee (or any entity controlled by an employee or any group of\npersons including an employee) or an underwriter temporarily holding securities pursuant to an offering of such securities, is or becomes the\nbeneficial owner, directly or indirectly, of 30% or more of the company’s voting securities, or (iii) the consummation of a merger, consolidation,\nstatutory share exchange or similar form of corporate transaction involving the Company, or any of its subsidiaries that requires the approval of\nthe Company’s stockholders, whether for such transaction or the issuance of securities in the transaction, or the sale or other disposition of all or\nsubstantially all of the Company’s assets to an unaffiliated entity, unless immediately after such corporate transaction or sale, (A) more than 60%\nof the total voting securities of the corporation resulting from such corporate transaction or sale (or if applicable, the ultimate parent corporation\nthat directly or indirectly has beneficial ownership of 100% of the voting securities eligible to elect directors of the surviving company) is\nrepresented by voting securities of the Company that were outstanding immediately prior to such corporate transaction or sale (or by shares into\nwhich such Company voting securities were converted pursuant to such corporate transaction or sale) and such voting power among the holders\nthereof is in substantially the same proportion as the voting power of such Company voting securities among the holders thereof immediately\nprior to the corporate transaction or sale, (B) no person (other than any employee benefit plan (or related trust) sponsored or maintained by the\nsurviving company or the parent company), is or becomes the beneficial owner, directly or indirectly, of 30% or more of the total voting power of\nthe outstanding voting securities eligible to elect directors of the parent company (or, if there is no parent company, the surviving company) and\n(C) at least a majority of the members of the board of directors of the parent company (or, if there is no parent company, the surviving company)\nfollowing the consummation of the corporate transaction or sale were members of the Incumbent Board at the time of the Board’s approval of the\nexecution of the initial agreement providing for such corporate transaction or sale (any corporate transaction or sale which satisfies all of the\ncriteria specified in (A) (B) and (C) above shall be deemed to be a “Non-Qualifying Transaction”); or (iv) the Company’s shareholders approve a\nplan of complete liquidation or dissolution of the Company. Notwithstanding the foregoing, a Change of Control shall not be deemed to occur\nsolely because any person acquires beneficial ownership of more than 30% of the Company voting securities as a result of the acquisition of\nCompany voting securities by the Company which reduces the number of Company voting securities outstanding; provided that if after such\nacquisition by the Company such person becomes the beneficial owner of additional Company voting securities that increases the percentage of\noutstanding Company voting securities beneficially owned by such person, a Change of Control of the Company shall then occur.\n(c)\n“Constructive Discharge” shall mean conduct by the Company that would lead a reasonable person to leave employment due to\nintolerable conditions created by the Company, reduction of the Employee’s base salary (except in the event of a generally proportionate\nreduction of all of the Management Committee members’ salaries), the cessation of the Employee being a member of the Management\nCommittee (provided, however, that in the event Employee voluntarily steps down from the Management\n3\nCommittee, this Agreement shall become void three months from that date), changing Employee’s reporting relationship that results in Employee\nreporting to someone who is not a member of the Management Committee, the Chairman or the Chief Executive Officer, changing Employee’s\nreporting relationship or reducing his/her responsibilities such that it would cause a reasonable person to resign and causes Employee to resign,\nor requiring Employee to accept a position that would reasonably require relocation.\n(d)\n“Restricted Period” shall mean the twelve (12) month period following the Employee’s termination of employment.\n(e)\n“Management Committee” shall mean the most senior policy setting group of executives within the Company, excluding the\nChairman and the Chief Executive Officer.\nSECTION 3.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION.\n(a)\nEmployee recognizes that the Company has developed information that is confidential, proprietary and/or nonpublic that is\nrelated to its business, operations, services, finances, clients, customers, policyholders, vendors and agents (“Confidential Information”).\nEmployee understands and agrees that he/she is prohibited from using, disclosing, divulging or misappropriating any Confidential Information\nfor his/her own personal benefit or for the benefit of any person or entity, except that Employee may disclose Confidential Information pursuant\nto a properly issued subpoena, court order, other legal process, or official inquiry of a federal, state or local taxing authority, or other\ngovernmental agency with a legitimate legal right to know the Confidential Information. If disclosure is compelled of Employee by subpoena,\ncourt order or other legal process, or as otherwise required by law, Employee agrees to notify Company as soon as notice of such process is\nreceived and before disclosure and/or appearance takes place. Employee will use reasonable and prudent care to safeguard and prevent the\nunauthorized use or disclosure of Confidential Information. Confidential Information shall not include any information that: (a) is or becomes a\npart of the public domain through no act or omission of Employee or is otherwise available to the public other than by breach of this Agreement;\n(b) was in Employee’s lawful possession prior to the disclosure and had not been obtained by Employee either directly or indirectly as a result of\nEmployee’s employment with or other service to the Company; (c) is disclosed to Employee by a third party who has authority from the\nCompany to make such disclosure and such disclosure to Employee is not confidential; or (d) is independently developed by Employee outside\nof Employee’s employment with the Company and without the use of any Confidential Information. Employee further acknowledges that\nEmployee, in the course of employment, has had and will have access to such Confidential Information.\n(b)\nEmployee agrees that every document, computer disk, electronic file, computerized information, computer software program,\nnotation, record, diary, memorandum, development, investigation, or the like, and any method or manner of doing business of the Company\ncontaining Confidential Information made or acquired by\n4\nthe Employee during employment by the Company is and shall be the sole and exclusive property of Company. The Employee will deliver the\nsame (and every copy, disk, abstract, summary, or reproduction of the same made by or for the Employee or acquired by the Employee)\nwhenever the Company may so require and in any event prior to or at the termination of employment. Nothing in Section 3 is intended or shall\nbe interpreted to mean that the Company may withhold information, including computerized information, relating to Employee’s personal\ncontacts and personal information that may be stored or contained in Employee’s physical or electronic files. The Company further agrees not to\nunreasonably withhold information relating to Employee’s business-related contacts, to the extent such information falls outside the definition of\nConfidential Information set forth in Section 3(a) above.\nSECTION 4.\nNON-SOLICITATION/NON-INTERFERENCE.\nThe parties understand and agree that this Agreement is intended to protect the Company against the Employee raiding its employees\nand/or its business during the Restricted Period, while recognizing that after his/her termination, Employee is still permitted to freely compete\nwith the Company, except to the extent Confidential Information is used in such solicitation and subject to certain restrictions set forth below.\nFurther, nothing in this Agreement is intended to grant or limit any rights or claims as to any future employer of Employee. To this end, any\ncourt considering the enforcement of this Agreement for a breach of this Agreement, must accept this statement of intent.\n(a)\nAfter Employee has left the employment of the Company and during the Restricted Period, Employee will not seek to recruit or\nsolicit, or assist in recruiting or soliciting, participate in or promote the solicitation of, interfere with, attempt to influence or otherwise affect the\nemployment of any person who was or is employed by the Company at any time during the last three months of Employee’s employment or\nthereafter. Further, Employee shall not, on behalf of himself/herself or any other person, hire, employ or engage any such person. The parties\nagree that Employee shall not directly engage in the aforesaid conduct through a third party for the purpose of colluding to avoid the restrictions\nin this Agreement. However, nothing in this Agreement precludes Employee from directing a third party (including but not limited to employees\nof his/her subsequent employer or a search firm) to broadly solicit, recruit, and hire individuals, some of whom may be employees of the\nCompany, provided that Employee does not specifically direct such third party to specifically target the Company’s employees generally or\nspecific individual employees of the Company.\n(b)\nAfter Employee has left the employment of the Company, accepts a position as an employee, consultant or contractor with a\ndirect competitor of the Company, and during the Restricted Period, Employee will not utilize Confidential Information to seek to solicit or assist\nin soliciting, participate in or otherwise promote the solicitation of, interference with, attempt to influence or otherwise affect any person or\nentity, who is a client, customer, policyholder, or agent of the Company, to discontinue business with the Company, and/or move that business\nelsewhere. Employee also agrees\n5\nnot to be directly and personally involved in the negotiation or solicitation of any individual book roll over(s) or other book of business transfer\narrangements involving the transfer of business away from Company, even if Confidential Information is not involved. However, nothing in this\nAgreement precludes the Employee from directing a third party (including but not limited to employees of his/her subsequent employer) to\nsolicit, compete for, negotiate and execute book roll over deals or other book of business transfer arrangements provided that (i) Confidential\nInformation provided by the Employee is not used, (ii) Employee is not personally and directly involved in such negotiations, and (iii) Employee\ndoes not direct such third party to target specific agents of Company. Furthermore, nothing in this Agreement precludes the Employee from\nfreely competing with the Company including but not limited to competing on an account by account or deal by deal basis to the extent that\nhe/she does not use Confidential Information.\n(c)\nThis Section 4 is inapplicable in the event Employee accepts and signs the Waiver and Release as described in Section 12(e).\nSECTION 5.\nATTORNEYS’ FEES.\nIf a dispute arises concerning the terms and conditions of this Agreement, Employee and Company agree to pay their own respective\nattorneys’ fees and costs.\nSECTION 6.\nEXTENSION OF OBLIGATIONS.\nIf Employee breaches any of the provisions of Section 4 of this Agreement, and if the Company brings legal action for injunctive relief\nduring the Restricted Period and injunctive relief is ordered by a court of competent jurisdiction, then one day of additional time shall be added to\nthe restriction for each day of noncompliance, up to a maximum of twelve (12) months, so that the Company is given the benefit of Employee’s\ncompliance with the restriction for twelve (12) months following employment as agreed. If, however, the Company takes no action within the\nRestricted Period, then the Company shall have no right to bring a legal action under this Agreement against Employee.\nSECTION 7.\nCONSENT TO JURISDICTION.\nJurisdiction and venue for enforcement of this Agreement, and for resolution of any dispute under this Agreement, shall be exclusively\nin the federal or state courts in the state and county where the Employee resides at the time that the Company commences an enforcement\naction. Employee agrees to advise the Company’s General Counsel of his/her residence during the Restricted Period.\n6\nSECTION 8.\nEMPLOYMENT-AT-WILL.\nEmployee specifically recognizes and agrees that nothing in this Agreement shall be deemed to change the existing employment\nrelationship between the Employee and the Company, and that this Agreement is not an employment agreement for continued employment.\nSECTION 9.\nGOVERNING LAW.\nThis Agreement shall be construed interpreted in accordance with the laws of the State of Minnesota.\nSECTION 10.\nWAIVER.\nThe waiver of a breach of any provision of this Agreement shall not operate as or be construed as a waiver of any subsequent breach of\nthis Agreement. To the extent that a common law duty exists with respect to the use of Confidential Information that would cause the Company\nirreparable harm, Employee recognizes and acknowledges his/her obligation to abide by that duty both before and after the Restricted Period.\nSECTION 11.\nSEVERABILITY.\nIf any provision, section or subsection of this Agreement is adjudged by any court to be void or unenforceable in whole or in part, this\nadjudication shall not affect the validity of the remainder of the Agreement, including any other provision, section or subsection. Each provision,\nsection, and subsection of this Agreement is separable from every other provision, section and subsection and constitutes a separate and distinct\ncovenant. Both Employee and the Company agree that if any court rules that a restriction contained in this Agreement is unenforceable as\nwritten, the parties will meet and confer to negotiate the reformation of the provision.\nSECTION 12.\nASSIGNMENT AND EXPIRATION OF AGREEMENT.\n(a)\nThis Agreement is not assignable by Employee or the Company without the written consent of the other party.\n(b)\nIt is the intent of the Company that all members of the Management Committee will sign and be bound by the terms of this\nAgreement. The Company also agrees that all future Management Committee members will be required to sign a non-solicitation non-disclosure\nagreement within thirty (30) days of joining the Management Committee, such agreement to be on the same terms as this Agreement, except for\n7\nconforming changes, technical changes and corrections which are not more favorable to such person than as provided in this Agreement as then\nin effect.\n(c) The Company agrees that it will not amend, alter, modify, or otherwise change the terms of the non-solicitation non-disclosure\nagreement for any present or future Management Committee member, except as referenced in Sections 12(b) or 12(f). If the Company amends,\nalters, modifies or otherwise changes the terms of the non-solicitation nondisclosure agreement for any present or future Management Committee\nmember such that the terms are less restrictive than the terms set forth in this Agreement, the Company will modify the terms of this Agreement\nto reflect the less restrictive terms. The Company agrees to notify Employee in writing within fourteen (14) days of its execution or modification\nof such a non-solicitation non-disclosure agreement with any present or future Management Committee member. Additionally, in the event that\nfuture members of the Management Committee are not required to execute this Agreement, do not sign the Agreement within thirty (30) days of\njoining the Management Committee, or any member of the Management Committee is no longer bound by this Agreement and permitted to\nremain on the Management Committee, then this Agreement shall immediately become void. The Company agrees to advise Employee within\nfourteen (14) days, that the Agreement has become void.\n(d)\nIn the event that Employee is removed from the Management Committee, and/or Employee is Constructively Discharged, then\nthis Agreement shall immediately become void; provided, however, that if the Employee is Constructively Discharged following a Change of\nControl, then Employee shall have the option upon written notice to the Company within 90 days following such Constructive Discharge to\ncause this Agreement to become void and, in the absence of making any such election, this Agreement shall remain in effect.\n(e)\nIn the event that Employee loses employment under the conditions as defined in the Severance Plan or as further defined in\nSection 1(b) and Employee accepts and signs the Waiver and Release, as defined and required by the Severance Plan, then Employee shall\nreceive the enhanced benefits set forth in Section 1(b), and the non-solicitation terms set forth in such Waiver and Release shall supersede the\nterms set forth in Section 4 hereof.\n(f)\nThe Company may, from time to time, deem it necessary to enter into an agreement on a temporary basis that provides greater\nseverance benefits than are being provided in Section 1(b) when hiring a new member of the Management Committee or when asking an existing\nmember to relocate or asking a member to take a position substantially different from the member ’s current position. In the event those greater\nseverance benefits are provided for a period longer than 24 months, the benefits under this Agreement shall be enhanced, on a proportionate basis\n(for example, if such new member’s benefit was increased by 12 months over Employee’s benefit, then Employee’s benefit would be increased\nby 12 months), to incorporate the increased benefits provided to the other employee.\n8\n(g)\nNotwithstanding Sections 12(b) and 12(c), the Company agrees that in the event Employee has an existing agreement in place\nwith Company with more restrictive non-solicitation and/or non-disclosure terms, those more restrictive terms will govern until their expiration,\nif any, at which time this Agreement will wholly take effect. In the event Employee has an existing agreement in place with Company with no or\nless restrictive non-solicitation and/or non-disclosure terms, the more restrictive terms contained in this Agreement will govern.\nSECTION 13. RELIEF\n(a)\nEmployee expressly acknowledges that the terms of Sections 3 and 4 are material to this Agreement. Employee further\nacknowledges and agrees that the Confidential Information acquired during Employee’s employment with the Company is valuable and unique,\nand that any breach by Employee of the provisions of Sections 3 and 4 will cause the Company irreparable injury and damage that cannot\nreasonably or adequately be compensated by monetary damages. Employee, therefore, expressly agrees that the Company shall be entitled to\ninjunctive relief in a court of competent jurisdiction in accordance with the laws of the applicable jurisdiction.\n(b)\nThe parties agree that injunctive relief is the exclusive remedy that is available to the Company against Employee in the event\nthe Employee breaches this Agreement.\n(c)\nIf the Company takes no legal action within the Restricted Period, then it shall not be entitled to bring any legal action under\nthis Agreement against Employee or for any extension of the Restricted Period.\nSECTION 14.\nENTIRE AGREEMENT.\nThis Agreement constitutes the entire Agreement and understanding between the Company and the Employee concerning the subject\nmatters hereof and shall supersede and replace any previously executed non-solicitation non-disclosure agreement between the Company and\nEmployee. No modification, amendment, termination or waiver of this Agreement shall be binding unless in writing and signed by the\nEmployee and a duly authorized representative of the Company.\n9\nIN WITNESS WHEREOF, the Company and Employee have duly executed this Agreement under seal as of the day and year first\nabove written.\nTHE TRAVELERS COMPANIES, INC.\nBy:\nName: John P. Clifford Jr.\nTitle: Executive Vice President and Chief Human Resources Officer\nXXXXXXX\n10\nEXHIBIT A\nCovenants Not to Solicit/Hire/Interfere. Employee acknowledges and agrees that, by virtue of opportunities derived from Employee’s access\nto Confidential Information and employment with the Company, Employee is capable of significantly and adversely impacting the existing\nrelationships of the Company Entities with their clients, customers, policyholders, vendors, consultants, employees, and/or agents. Employee\nacknowledges that the Company Entities have a legitimate interest in protecting these relationships against solicitation and/or interference by\nEmployee during Employee’s employment and for a reasonable period of time following the Separation Date. Accordingly, the parties agree that\nthe covenants described in this Subsection III(E) and its subparts shall apply (i) during Employee’s employment with the Company and (ii) for a\nduration of twelve (12) months following the Separation Date (together, “the Restricted Period”). Employee acknowledges and agrees that the\ncovenants described in this Subsection III(E) and its subparts are expressly intended to protect and preserve the legitimate business interests and\ngoodwill of the Company Entities. Employee acknowledges that the Consideration provides independent and fair consideration for these\ncovenants.\n1.\nNon-Solicitation/Non-Hire of Employees. Employee acknowledges that the Company Entities sustain their operations and\nthe goodwill of their clients, customers, policyholders, vendors, consultants, producers, agents and brokers (“Customers”) through their\nemployees. The Company Entities have made significant investment in their employees and their ability to establish and maintain relationships\nwith each other and with the Company Entities’ Customers in order to further their operations and cultivate goodwill. Employee acknowledges\nthat the loss of the Company Entities’ employees could adversely affect its operations and jeopardize the goodwill that has been established\nthrough these employees, and that the Company Entities therefore have a legitimate interest in preventing the solicitation of their employees.\nAccordingly, Employee shall not, without the prior written consent of the Company, at any time during the Restricted Period, directly or\nindirectly, seek to recruit or solicit, attempt to influence or assist, participate in or promote the solicitation of, or otherwise attempt to adversely\naffect the employment of any person who was or is employed by any Company Entity on the Separation Date or was employed by any Company\nEntity within twelve (12) months prior to the Separation Date or thereafter. Without limiting the foregoing restriction, Employee shall not, on\nbehalf of Employee or any other person, hire, employ or engage any such person and shall not engage in the aforesaid conduct through a third\nparty for the purpose of colluding to avoid the restrictions in this Section. Without limiting the generality of the restrictions under this Section,\nby way of example, the restrictions under this Section shall prohibit Employee from (i) interviewing a Company Entity employee,\n(ii) communicating in any manner with a Company Entity employee in connection with a current or future employment opportunity outside of\nthe Company, (iii) identifying Company Entity employees to potentially be solicited or hired, (iv) providing information or feedback regarding\nCompany Entity employees seeking employment with the Employees subsequent employer and/or (v) otherwise assisting or participating in the\nsolicitation or hiring of a Company Entity employee. Employee further agrees that, during such time, if a person who is employed by any\nCompany Entity contacts Employee about prospective employment, Employee will inform such person that Employee cannot discuss the matter,\nunless and until consent of the Company has been obtained. Employee shall not provide any other person the name of, or information regarding,\nany person employed by any Company Entity who contacts Employee about prospective employment. For purposes of this Subsection III(E)(1),\nrequests for consent must be delivered via overnight mail (signature required) to John P. Clifford, Jr., Travelers, Executive Vice President of\nHuman Resources, 385 Washington Street, Mail Code SB02W, St. Paul, MN 55102-1396 (or his successor), with a copy via overnight mail\n(signature required) to Kenneth F. Spence, III, Travelers, Executive Vice President and General Counsel, 385 Washington Street, Mail Code\nLC12L, St. Paul, MN 55102-1396 (or his successor).\n2.\nNon-Solicitation of and Non-Interference with Existing Commercial Relationships. Employee acknowledges that by\nvirtue of his or her employment with the Company, Employee has developed relationships with and/or had access to Confidential Information\nabout the Company Entities’ Customers and is, therefore, capable of significantly and adversely impacting existing relationships that the\nCompany Entities have with them. Employee further acknowledges that the Company Entities have invested in their and Employee’s\nrelationship with the Company Entities’ Customers and the goodwill that has been developed with them, and therefore have a legitimate interest\nin protecting these relationships against solicitation and/or interference by Employee for a reasonable period of time after the Separation Date.\nAccordingly, Employee shall not, without the prior written consent of the Company, at any time during the Restricted Period, directly or\nindirectly, solicit any person or entity, who or that, as of the Separation Date, was or is a Customer of any Company Entity, to discontinue\nbusiness with any Company Entity and/or move that business elsewhere, or otherwise change an existing customer relationship with any\nCompany Entity. Employee further agrees that, during such time, if such a Customer contacts Employee about discontinuing business with any\nCompany Entity, and/or moving that business elsewhere, or otherwise changing an existing commercial relationship with any Company Entity,\nEmployee will inform such Customer that Employee cannot discuss the matter without notifying the Company. Prior to any discussion of the\nmatter, Employee is obligated to notify the Company of the name of the person who made the contact, the Customer with whom the person is\naffiliated, and the nature and date of the contact. After notifying the Company of the contact, Employee must receive written consent from the\nCompany before discussing the matter with such Customer. For purposes of this Subsection III(E)(2), requests for consent must be delivered via\novernight mail (signature required) to the current Executive Vice President or Senior Vice President of the business unit for which Employee\nworked as of the Separation Date, with a copy via overnight mail (signature required) to Kenneth F. Spence, III, Travelers, Executive Vice\nPresident and General Counsel, 385 Washington Street, Mail Code LC12L, St. Paul, MN 55102-1396 (or his successor).	EX-10.35 2 a2230860zex-10_35.htm EX-10.35\nExhibit 10.35\nAMENDED AND RESTATED NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS AMENDED AND RESTATED NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered\ninto this th day of , 20 , by and between The Travelers Companies, Inc., a Minnesota corporation, including its present and future\naffiliated entities (collectively, the “Company”), and XXXX (the “Employee”).\nWITNESSETH:\nWHEREAS, the Employee is employed by the Company; and\nWHEREAS, the Company is engaged in the business of underwriting and selling insurance and insurance-related products throughout\nthe United States.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants and obligations hereinafter set forth, the parties agree\nas follows:\nSECTION 1. CONSIDERATION.\n@) As consideration for the execution of this Agreement, the Employee acknowledges receipt of the amount of Five Thousand\nDollars ($5,000.00) (“the Consideration”), to the extent not previously paid in connection with the execution of a prior version of this\nAgreement, which constitutes good, valuable and independent consideration for all of Employee’s covenants and obligations in this Agreement\nand is above and beyond any compensation Employee is entitled to receive from the Company.\n(b) As further consideration for the execution of this Agreement, the Employee shall be eligible to participate in and receive the\nbenefits of the executive severance plan as set forth in Schedule B of The Travelers Severance Plan (as amended and restated effective January 1,\n2015) (the “Severance Plan”), in the event Employee is involuntarily terminated because of a reduction in force, involuntarily terminated for\nreasons other than Cause (as defined in Section 2) or asked to take a substantial demotion, and otherwise pursuant to the terms and conditions of\nthe Severance Plan and regardless of any amendment to or termination of the Severance Plan, except that for the purpose of Schedule B, the\nnumber of months of severance benefit shall in no event be less than 21 months and the “total monthly cash compensation” shall in no event be\nless than one twelfth (1/12) of the Employee’s base salary in effect at the time of his/her termination of employment (“final base salary”) plus the\ngreater of (i) one twelfth (1/12) of the average of his/her two most recent cash payments under the annual incentive compensation plan of the\nCompany, or (ii) one twelfth (1/12) of 125% of the final base salary for any Employee who is serving the Employer in a position of Executive\nVice President or equivalent (as determined by Company and the position of Vice Chairman is\n \ndeemed to be equivalent to Executive Vice President); and 110% of the final base salary of any Employee who is serving the Employer in a\nposition of Senior Vice President or equivalent (as determined by Company). Further, in order to be eligible for benefits under the Severance\nPlan, Employee will be required to, among other things, execute a Waiver and Release, as defined in the Severance Plan, in a form satisfactory to\nCompany. (The current standard non-solicitation clauses included in the Waiver and Release are attached and incorporated herein for your\nreference as Exhibit A.) Nothing in this Agreement is intended or may be interpreted to amend or revise the Severance Plan, except as set forth\nand applicable herein. Schedule B of the Severance Plan, as in effect as of the date hereof (“Schedule B”), is incorporated herein by reference.\nSuch Schedule B, together with the above described enhanced benefit set forth a schedule of minimum severance for Employee and other\nmembers of the Management Committee. To the extent the Company revises the existing Severance Plan to increase the benefits, Employee will\nbe entitled to the greater of (i) the new increased benefits under the Severance Plan or (ii) the Severance Plan benefits in existence at the time this\nAgreement was executed, in each case, with any additional enhancements as applicable pursuant to this Section 1(b). To the extent Company\nrevises the Severance Plan to decrease benefits or adopts a Severance Plan which allows for a benefit to be paid that is less than that set forth in\nSchedule B, Employee shall be entitled to the benefits set forth in Schedule B, as modified by this Section 1(b).\nSECTION 2. DEFINITIONS\nFor purposes of this Agreement, the following terms are defined as follows:\n@) “Cause” shall mean Employee’s conviction of any felony, Employee’s willful misconduct in connection with the performance\nof Employee’s duties with Company, or Employee’s taking illegal action in Employee’s business or personal life that harms the reputation or\ndamages the good name of Company.\n(b) “Change of Control” shall mean any of the following (i) members of the Board of Directors on the date hereof (“Incumbent\nBoard”) cease for any reason to constitute a majority thereof, provided that persons subsequently becoming directors with the approval of\ndirectors constituting at least two-thirds (2/3) of the Incumbent Board (either by a specific vote or by approval of the proxy statement of the\nCompany in which such person is named as a nominee for director, without written objection to such nomination) will be considered as members\nof the Incumbent Board provided, however, that no individual initially elected or nominated as a director of the Company as a result of an actual\nor threatened election contest (as described in Rule 14a-11 under the Securities Exchange Act of 1934 (the “Act”)) (“Election Contest”) or any\nother actual or threatened solicitation of proxies or consents by or on behalf of any “person” (as such term is defined in Section 3(a)(9) of the\nAct) other than the Board (“Proxy Contest”), including by reason of any agreement intended to avoid or settle any Election Contest or Proxy\nContest, shall be deemed to be a member of the Incumbent Board, or (ii) any person as defined in the Act, other than the Company, a Company\nsubsidiary, any employee benefit plan (or related trust) sponsored or maintained by the Company or any\n2\n \nCompany subsidiary, any employee or any group of persons including an employee (or any entity controlled by an employee or any group of\npersons including an employee) or an underwriter temporarily holding securities pursuant to an offering of such securities, is or becomes the\nbeneficial owner, directly or indirectly, of 30% or more of the company’s voting securities, or (iii) the consummation of a merger, consolidation,\nstatutory share exchange or similar form of corporate transaction involving the Company, or any of its subsidiaries that requires the approval of\nthe Company’s stockholders, whether for such transaction or the issuance of securities in the transaction, or the sale or other disposition of all or\nsubstantially all of the Company’s assets to an unaffiliated entity, unless immediately after such corporate transaction or sale, (A) more than 60%\nof the total voting securities of the corporation resulting from such corporate transaction or sale (or if applicable, the ultimate parent corporation\nthat directly or indirectly has beneficial ownership of 100% of the voting securities eligible to elect directors of the surviving company) is\nrepresented by voting securities of the Company that were outstanding immediately prior to such corporate transaction or sale (or by shares into\nwhich such Company voting securities were converted pursuant to such corporate transaction or sale) and such voting power among the holders\nthereof is in substantially the same proportion as the voting power of such Company voting securities among the holders thereof immediately\nprior to the corporate transaction or sale, (B) no person (other than any employee benefit plan (or related trust) sponsored or maintained by the\nsurviving company or the parent company), is or becomes the beneficial owner, directly or indirectly, of 30% or more of the total voting power of\nthe outstanding voting securities eligible to elect directors of the parent company (or, if there is no parent company, the surviving company) and\n(C) at least a majority of the members of the board of directors of the parent company (or, if there is no parent company, the surviving company)\nfollowing the consummation of the corporate transaction or sale were members of the Incumbent Board at the time of the Board’s approval of the\nexecution of the initial agreement providing for such corporate transaction or sale (any corporate transaction or sale which satisfies all of the\ncriteria specified in (A) (B) and (C) above shall be deemed to be a “Non-Qualifying Transaction”); or (iv) the Company’s shareholders approve a\nplan of complete liquidation or dissolution of the Company. Notwithstanding the foregoing, a Change of Control shall not be deemed to occur\nsolely because any person acquires beneficial ownership of more than 30% of the Company voting securities as a result of the acquisition of\nCompany voting securities by the Company which reduces the number of Company voting securities outstanding; provided that if after such\nacquisition by the Company such person becomes the beneficial owner of additional Company voting securities that increases the percentage of\noutstanding Company voting securities beneficially owned by such person, a Change of Control of the Company shall then occur.\n(0 “Constructive Discharge” shall mean conduct by the Company that would lead a reasonable person to leave employment due to\nintolerable conditions created by the Company, reduction of the Employee’s base salary (except in the event of a generally proportionate\nreduction of all of the Management Committee members’ salaries), the cessation of the Employee being a member of the Management\nCommittee (provided, however, that in the event Employee voluntarily steps down from the Management\n3\n \nCommittee, this Agreement shall become void three months from that date), changing Employee’s reporting relationship that results in Employee\nreporting to someone who is not a member of the Management Committee, the Chairman or the Chief Executive Officer, changing Employee’s\nreporting relationship or reducing his/her responsibilities such that it would cause a reasonable person to resign and causes Employee to resign,\nor requiring Employee to accept a position that would reasonably require relocation.\n(d) “Restricted Period” shall mean the twelve (12) month period following the Employee’s termination of employment.\n(e) “Management Committee” shall mean the most senior policy setting group of executives within the Company, excluding the\nChairman and the Chief Executive Officer.\nSECTION 3. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.\n@) Employee recognizes that the Company has developed information that is confidential, proprietary and/or nonpublic that is\nrelated to its business, operations, services, finances, clients, customers, policyholders, vendors and agents (“Confidential Information”).\nEmployee understands and agrees that he/she is prohibited from using, disclosing, divulging or misappropriating any Confidential Information\nfor his/her own personal benefit or for the benefit of any person or entity, except that Employee may disclose Confidential Information pursuant\nto a properly issued subpoena, court order, other legal process, or official inquiry of a federal, state or local taxing authority, or other\ngovernmental agency with a legitimate legal right to know the Confidential Information. If disclosure is compelled of Employee by subpoena,\ncourt order or other legal process, or as otherwise required by law, Employee agrees to notify Company as soon as notice of such process is\nreceived and before disclosure and/or appearance takes place. Employee will use reasonable and prudent care to safeguard and prevent the\nunauthorized use or disclosure of Confidential Information. Confidential Information shall not include any information that: (a) is or becomes a\npart of the public domain through no act or omission of Employee or is otherwise available to the public other than by breach of this Agreement;\n(b) was in Employee’s lawful possession prior to the disclosure and had not been obtained by Employee either directly or indirectly as a result of\nEmployee’s employment with or other service to the Company; (c) is disclosed to Employee by a third party who has authority from the\nCompany to make such disclosure and such disclosure to Employee is not confidential; or (d) is independently developed by Employee outside\nof Employee’s employment with the Company and without the use of any Confidential Information. Employee further acknowledges that\nEmployee, in the course of employment, has had and will have access to such Confidential Information.\n(b) Employee agrees that every document, computer disk, electronic file, computerized information, computer software program,\nnotation, record, diary, memorandum, development, investigation, or the like, and any method or manner of doing business of the Company\ncontaining Confidential Information made or acquired by\n \nthe Employee during employment by the Company is and shall be the sole and exclusive property of Company. The Employee will deliver the\nsame (and every copy, disk, abstract, summary, or reproduction of the same made by or for the Employee or acquired by the Employee)\nwhenever the Company may so require and in any event prior to or at the termination of employment. Nothing in Section 3 is intended or shall\nbe interpreted to mean that the Company may withhold information, including computerized information, relating to Employee’s personal\ncontacts and personal information that may be stored or contained in Employee’s physical or electronic files. The Company further agrees not to\nunreasonably withhold information relating to Employee’s business-related contacts, to the extent such information falls outside the definition of\nConfidential Information set forth in Section 3(a) above.\nSECTION 4. NON-SOLICITATION/NON-INTERFERENCE.\nThe parties understand and agree that this Agreement is intended to protect the Company against the Employee raiding its employees\nand/or its business during the Restricted Period, while recognizing that after his/her termination, Employee is still permitted to freely compete\nwith the Company, except to the extent Confidential Information is used in such solicitation and subject to certain restrictions set forth below.\nFurther, nothing in this Agreement is intended to grant or limit any rights or claims as to any future employer of Employee. To this end, any\ncourt considering the enforcement of this Agreement for a breach of this Agreement, must accept this statement of intent.\n@) After Employee has left the employment of the Company and during the Restricted Period, Employee will not seek to recruit or\nsolicit, or assist in recruiting or soliciting, participate in or promote the solicitation of, interfere with, attempt to influence or otherwise affect the\nemployment of any person who was or is employed by the Company at any time during the last three months of Employee’s employment or\nthereafter. Further, Employee shall not, on behalf of himself/herself or any other person, hire, employ or engage any such person. The parties\nagree that Employee shall not directly engage in the aforesaid conduct through a third party for the purpose of colluding to avoid the restrictions\nin this Agreement. However, nothing in this Agreement precludes Employee from directing a third party (including but not limited to employees\nof his/her subsequent employer or a search firm) to broadly solicit, recruit, and hire individuals, some of whom may be employees of the\nCompany, provided that Employee does not specifically direct such third party to specifically target the Company’s employees generally or\nspecific individual employees of the Company.\n(b) After Employee has left the employment of the Company, accepts a position as an employee, consultant or contractor with a\ndirect competitor of the Company, and during the Restricted Period, Employee will not utilize Confidential Information to seek to solicit or assist\nin soliciting, participate in or otherwise promote the solicitation of, interference with, attempt to influence or otherwise affect any person or\nentity, who is a client, customer, policyholder, or agent of the Company, to discontinue business with the Company, and/or move that business\nelsewhere. Employee also agrees\n \nnot to be directly and personally involved in the negotiation or solicitation of any individual book roll over(s) or other book of business transfer\narrangements involving the transfer of business away from Company, even if Confidential Information is not involved. However, nothing in this\nAgreement precludes the Employee from directing a third party (including but not limited to employees of his/her subsequent employer) to\nsolicit, compete for, negotiate and execute book roll over deals or other book of business transfer arrangements provided that (i) Confidential\nInformation provided by the Employee is not used, (ii) Employee is not personally and directly involved in such negotiations, and (iii) Employee\ndoes not direct such third party to target specific agents of Company. Furthermore, nothing in this Agreement precludes the Employee from\nfreely competing with the Company including but not limited to competing on an account by account or deal by deal basis to the extent that\nhe/she does not use Confidential Information.\n(0 This Section 4 is inapplicable in the event Employee accepts and signs the Waiver and Release as described in Section 12(e).\nSECTION 5. ATTORNEYS’ FEES.\nIf a dispute arises concerning the terms and conditions of this Agreement, Employee and Company agree to pay their own respective\nattorneys’ fees and costs.\nSECTION 6. EXTENSION OF OBLIGATIONS.\nIf Employee breaches any of the provisions of Section 4 of this Agreement, and if the Company brings legal action for injunctive relief\nduring the Restricted Period and injunctive relief is ordered by a court of competent jurisdiction, then one day of additional time shall be added to\nthe restriction for each day of noncompliance, up to a maximum of twelve (12) months, so that the Company is given the benefit of Employee’s\ncompliance with the restriction for twelve (12) months following employment as agreed. If, however, the Company takes no action within the\nRestricted Period, then the Company shall have no right to bring a legal action under this Agreement against Employee.\nSECTION 7. CONSENT TO JURISDICTION.\nJurisdiction and venue for enforcement of this Agreement, and for resolution of any dispute under this Agreement, shall be exclusively\nin the federal or state courts in the state and county where the Employee resides at the time that the Company commences an enforcement\naction. Employee agrees to advise the Company’s General Counsel of his/her residence during the Restricted Period.\n6\n \nSECTION 8. EMPLOYMENT-AT-WII L.\nEmployee specifically recognizes and agrees that nothing in this Agreement shall be deemed to change the existing employment\nrelationship between the Employee and the Company, and that this Agreement is not an employment agreement for continued employment.\nSECTION 9. GOVERNING LAW.\nThis Agreement shall be construed interpreted in accordance with the laws of the State of Minnesota.\nSECTION 10. WAIVER.\nThe waiver of a breach of any provision of this Agreement shall not operate as or be construed as a waiver of any subsequent breach of\nthis Agreement. To the extent that a common law duty exists with respect to the use of Confidential Information that would cause the Company\nirreparable harm, Employee recognizes and acknowledges his/her obligation to abide by that duty both before and after the Restricted Period.\nSECTION 11. SEVERABILITY.\nIf any provision, section or subsection of this Agreement is adjudged by any court to be void or unenforceable in whole or in part, this\nadjudication shall not affect the validity of the remainder of the Agreement, including any other provision, section or subsection. Each provision,\nsection, and subsection of this Agreement is separable from every other provision, section and subsection and constitutes a separate and distinct\ncovenant. Both Employee and the Company agree that if any court rules that a restriction contained in this Agreement is unenforceable as\nwritten, the parties will meet and confer to negotiate the reformation of the provision.\nSECTION 12. ASSIGNMENT AND EXPIRATION OF AGREEMENT.\n@) This Agreement is not assignable by Employee or the Company without the written consent of the other party.\n(b) It is the intent of the Company that all members of the Management Committee will sign and be bound by the terms of this\nAgreement. The Company also agrees that all future Management Committee members will be required to sign a non-solicitation non-disclosure\nagreement within thirty (30) days of joining the Management Committee, such agreement to be on the same terms as this Agreement, except for\n7\n \nconforming changes, technical changes and corrections which are not more favorable to such person than as provided in this Agreement as then\nin effect.\n(c)  The Company agrees that it will not amend, alter, modify, or otherwise change the terms of the non-solicitation non-disclosure\nagreement for any present or future Management Committee member, except as referenced in Sections 12(b) or 12(f). If the Company amends,\nalters, modifies or otherwise changes the terms of the non-solicitation nondisclosure agreement for any present or future Management Committee\nmember such that the terms are less restrictive than the terms set forth in this Agreement, the Company will modify the terms of this Agreement\nto reflect the less restrictive terms. The Company agrees to notify Employee in writing within fourteen (14) days of its execution or modification\nof such a non-solicitation non-disclosure agreement with any present or future Management Committee member. Additionally, in the event that\nfuture members of the Management Committee are not required to execute this Agreement, do not sign the Agreement within thirty (30) days of\njoining the Management Committee, or any member of the Management Committee is no longer bound by this Agreement and permitted to\nremain on the Management Committee, then this Agreement shall immediately become void. The Company agrees to advise Employee within\nfourteen (14) days, that the Agreement has become void.\n(d) In the event that Employee is removed from the Management Committee, and/or Employee is Constructively Discharged, then\nthis Agreement shall immediately become void; provided, however, that if the Employee is Constructively Discharged following a Change of\nControl, then Employee shall have the option upon written notice to the Company within 90 days following such Constructive Discharge to\ncause this Agreement to become void and, in the absence of making any such election, this Agreement shall remain in effect.\n(e) In the event that Employee loses employment under the conditions as defined in the Severance Plan or as further defined in\nSection 1(b) and Employee accepts and signs the Waiver and Release, as defined and required by the Severance Plan, then Employee shall\nreceive the enhanced benefits set forth in Section 1(b), and the non-solicitation terms set forth in such Waiver and Release shall supersede the\nterms set forth in Section 4 hereof.\n(3] The Company may, from time to time, deem it necessary to enter into an agreement on a temporary basis that provides greater\nseverance benefits than are being provided in Section 1(b) when hiring a new member of the Management Committee or when asking an existing\nmember to relocate or asking a member to take a position substantially different from the member’s current position. In the event those greater\nseverance benefits are provided for a period longer than 24 months, the benefits under this Agreement shall be enhanced, on a proportionate basis\n(for example, if such new member’s benefit was increased by 12 months over Employee’s benefit, then Employee’s benefit would be increased\nby 12 months), to incorporate the increased benefits provided to the other employee.\n8\n \n(8 Notwithstanding Sections 12(b) and 12(c), the Company agrees that in the event Employee has an existing agreement in place\nwith Company with more restrictive non-solicitation and/or non-disclosure terms, those more restrictive terms will govern until their expiration,\nif any, at which time this Agreement will wholly take effect. In the event Employee has an existing agreement in place with Company with no or\nless restrictive non-solicitation and/or non-disclosure terms, the more restrictive terms contained in this Agreement will govern.\nSECTION 13. RELIEF\n@) Employee expressly acknowledges that the terms of Sections 3 and 4 are material to this Agreement. Employee further\nacknowledges and agrees that the Confidential Information acquired during Employee’s employment with the Company is valuable and unique,\nand that any breach by Employee of the provisions of Sections 3 and 4 will cause the Company irreparable injury and damage that cannot\nreasonably or adequately be compensated by monetary damages. Employee, therefore, expressly agrees that the Company shall be entitled to\ninjunctive relief in a court of competent jurisdiction in accordance with the laws of the applicable jurisdiction.\n(b) The parties agree that injunctive relief is the exclusive remedy that is available to the Company against Employee in the event\nthe Employee breaches this Agreement.\n(0 If the Company takes no legal action within the Restricted Period, then it shall not be entitled to bring any legal action under\nthis Agreement against Employee or for any extension of the Restricted Period.\nSECTION 14. ENTIRE AGREEMENT.\nThis Agreement constitutes the entire Agreement and understanding between the Company and the Employee concerning the subject\nmatters hereof and shall supersede and replace any previously executed non-solicitation non-disclosure agreement between the Company and\nEmployee. No modification, amendment, termination or waiver of this Agreement shall be binding unless in writing and signed by the\nEmployee and a duly authorized representative of the Company.\n \nIN WITNESS WHEREOQF, the Company and Employee have duly executed this Agreement under seal as of the day and year first\nabove written.\nTHE TRAVELERS COMPANIES, INC.\nBy:\nName: John P. Clifford Jr.\nTitle:  Executive Vice President and Chief Human Resources Officer\nXXXXXXX\n10\n \nEXHIBIT A\nCovenants Not to Solicit/Hire/Interfere. Employee acknowledges and agrees that, by virtue of opportunities derived from Employee’s access\nto Confidential Information and employment with the Company, Employee is capable of significantly and adversely impacting the existing\nrelationships of the Company Entities with their clients, customers, policyholders, vendors, consultants, employees, and/or agents. Employee\nacknowledges that the Company Entities have a legitimate interest in protecting these relationships against solicitation and/or interference by\nEmployee during Employee’s employment and for a reasonable period of time following the Separation Date. Accordingly, the parties agree that\nthe covenants described in this Subsection III(E) and its subparts shall apply (i) during Employee’s employment with the Company and (ii) for a\nduration of twelve (12) months following the Separation Date (together, “the Restricted Period”). Employee acknowledges and agrees that the\ncovenants described in this Subsection III(E) and its subparts are expressly intended to protect and preserve the legitimate business interests and\ngoodwill of the Company Entities. Employee acknowledges that the Consideration provides independent and fair consideration for these\ncovenants.\n1. Non-Solicitation/Non-Hire of Employees. Employee acknowledges that the Company Entities sustain their operations and\nthe goodwill of their clients, customers, policyholders, vendors, consultants, producers, agents and brokers (“Customers™) through their\nemployees. The Company Entities have made significant investment in their employees and their ability to establish and maintain relationships\nwith each other and with the Company Entities” Customers in order to further their operations and cultivate goodwill. Employee acknowledges\nthat the loss of the Company Entities’ employees could adversely affect its operations and jeopardize the goodwill that has been established\nthrough these employees, and that the Company Entities therefore have a legitimate interest in preventing the solicitation of their employees.\nAccordingly, Employee shall not, without the prior written consent of the Company, at any time during the Restricted Period, directly or\nindirectly, seek to recruit or solicit, attempt to influence or assist, participate in or promote the solicitation of, or otherwise attempt to adversely\naffect the employment of any person who was or is employed by any Company Entity on the Separation Date or was employed by any Company\nEntity within twelve (12) months prior to the Separation Date or thereafter. Without limiting the foregoing restriction, Employee shall not, on\nbehalf of Employee or any other person, hire, employ or engage any such person and shall not engage in the aforesaid conduct through a third\nparty for the purpose of colluding to avoid the restrictions in this Section. Without limiting the generality of the restrictions under this Section,\nby way of example, the restrictions under this Section shall prohibit Employee from (i) interviewing a Company Entity employee,\n(ii) communicating in any manner with a Company Entity employee in connection with a current or future employment opportunity outside of\nthe Company, (iii) identifying Company Entity employees to potentially be solicited or hired, (iv) providing information or feedback regarding\nCompany Entity employees seeking employment with the Employees subsequent employer and/or (v) otherwise assisting or participating in the\n \nsolicitation or hiring of a Company Entity employee. Employee further agrees that, during such time, if a person who is employed by any\nCompany Entity contacts Employee about prospective employment, Employee will inform such person that Employee cannot discuss the matter,\nunless and until consent of the Company has been obtained. Employee shall not provide any other person the name of, or information regarding,\nany person employed by any Company Entity who contacts Employee about prospective employment. For purposes of this Subsection III(E)(1),\nrequests for consent must be delivered via overnight mail (signature required) to John P. Clifford, Jr., Travelers, Executive Vice President of\nHuman Resources, 385 Washington Street, Mail Code SB02W, St. Paul, MN 55102-1396 (or his successor), with a copy via overnight mail\n(signature required) to Kenneth F. Spence, III, Travelers, Executive Vice President and General Counsel, 385 Washington Street, Mail Code\nLC12L, St. Paul, MN 55102-1396 (or his successor).\n2. Non-Solicitation of and Non-Interference with Existing Commercial Relationships. Employee acknowledges that by\nvirtue of his or her employment with the Company, Employee has developed relationships with and/or had access to Confidential Information\nabout the Company Entities’ Customers and is, therefore, capable of significantly and adversely impacting existing relationships that the\nCompany Entities have with them. Employee further acknowledges that the Company Entities have invested in their and Employee’s\nrelationship with the Company Entities” Customers and the goodwill that has been developed with them, and therefore have a legitimate interest\nin protecting these relationships against solicitation and/or interference by Employee for a reasonable period of time after the Separation Date.\nAccordingly, Employee shall not, without the prior written consent of the Company, at any time during the Restricted Period, directly or\nindirectly, solicit any person or entity, who or that, as of the Separation Date, was or is a Customer of any Company Entity, to discontinue\nbusiness with any Company Entity and/or move that business elsewhere, or otherwise change an existing customer relationship with any\nCompany Entity. Employee further agrees that, during such time, if such a Customer contacts Employee about discontinuing business with any\nCompany Entity, and/or moving that business elsewhere, or otherwise changing an existing commercial relationship with any Company Entity,\nEmployee will inform such Customer that Employee cannot discuss the matter without notifying the Company. Prior to any discussion of the\nmatter, Employee is obligated to notify the Company of the name of the person who made the contact, the Customer with whom the person is\naffiliated, and the nature and date of the contact. After notifying the Company of the contact, Employee must receive written consent from the\nCompany before discussing the matter with such Customer. For purposes of this Subsection III(E)(2), requests for consent must be delivered via\novernight mail (signature required) to the current Executive Vice President or Senior Vice President of the business unit for which Employee\nworked as of the Separation Date, with a copy via overnight mail (signature required) to Kenneth F. Spence, III, Travelers, Executive Vice\nPresident and General Counsel, 385 Washington Street, Mail Code LC12L, St. Paul, MN 55102-1396 (or his successor).\n	EX-10.35 2 a2230860zex-10_35.htn EX-10.35\nExhibit 10.35\nAMENDED AND RESTATED NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS AMENDED AND RESTATED NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT ("Agreement") is made and entered\ninto this\nth day of\n20 by and between The Travelers Companies, Inc., a Minnesota corporation, including its present and future\naffiliated entities (collectively, the "Company"), and XXXX (the "Employee").\nWITNESSETH:\nWHEREAS, the Employee is employed by the Company; and\nWHEREAS, the Company is engaged in the business of underwriting and selling insurance and insurance-related products throughout\nthe United States.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants and obligations hereinafter set forth, the parties agree\nas follows:\nSECTION 1.\nCONSIDERATION.\n(a)\nAs consideration for the execution of this Agreement, the Employee acknowledges receipt of the amount of Five Thousand\nDollars ($5,000.00) ("the Consideration"), to the extent not previously paid in connection with the execution of a prior version of this\nAgreement, which constitutes good, valuable and independent consideration for all of Employee's covenants and obligations in this Agreement\nand is above and beyond any compensation Employee is entitled to receive from the Company.\n(b)\nAs further consideration for the execution of this Agreement, the Employee shall be eligible to participate in and receive the\nbenefits of the executive severance plan as set forth in Schedule B of The Travelers Severance Plan (as amended and restated effective January 1,\n2015)\n(the\n"Severance\nPlan"),\nin\nthe\nevent\nEmployee\nis\ninvoluntarily\nterminated\nbecause\nof\na\nreduction\nin\nforce,\ninvoluntarily\nterminated\nfor\nreasons other than Cause (as defined in Section 2) or asked to take a substantial demotion, and otherwise pursuant to the terms and conditions of\nthe Severance Plan and regardless of any amendment to or termination of the Severance Plan, except that for the purpose of Schedule B, the\nnumber of months of severance benefit shall in no event be less than 21 months and the "total monthly cash compensation" shall in no event\nbe\nless than one twelfth (1/12) of the Employee's base salary in effect at the time of his/her termination of employment ("final base salary") plus the\ngreater of (i) one twelfth (1/12) of the average of his/her two most recent cash payments under the annual incentive compensation plan of the\nCompany, or (ii) one twelfth (1/12) of 125% of the final base salary for any Employee who is serving the Employer in a position of Executive\nVice President or equivalent (as determined by Company and the position of Vice Chairman is\ndeemed to be equivalent to Executive Vice President); and 110% of the final base salary of any Employee who is serving the Employer in a\nposition of Senior Vice President or equivalent (as determined by Company). Further, in order to be eligible for benefits under the Severance\nPlan, Employee will be required to, among other things, execute a Waiver and Release, as defined in the Severance Plan, in a form satisfactory\nto\nCompany. (The current standard non-solicitation clauses included in the Waiver and Release are attached and incorporated herein for your\nreference as Exhibit A.) Nothing in this Agreement is intended or may be interpreted to amend or revise the Severance Plan, except as set forth\nand\napplicable\nherein.\nSchedule\nB\nof\nthe\nSeverance\nPlan,\nas\nin\neffect\nas\nof\nthe\ndate\nhereof\n("Schedule\nB"),\nis\nincorporated\nherein\nby\nreference.\nSuch Schedule B, together with the above described enhanced benefit set forth a schedule of minimum severance for Employee and other\nmembers of the Management Committee. To the extent the Company revises the existing Severance Plan to increase the benefits, Employee will\nbe entitled to the greater of (i) the new increased benefits under the Severance Plan or (ii) the Severance Plan benefits in existence at the time this\nAgreement was executed, in each case, with any additional enhancements as applicable pursuant to this Section 1(b). To the extent Company\nrevises the Severance Plan to decrease benefits or adopts a Severance Plan which allows for a benefit to be paid that is less than that set forth\nin\nSchedule B, Employee shall be entitled to the benefits set forth in Schedule B, as modified by this Section 1(b).\nSECTION 2.\nDEFINITIONS\nFor purposes of this Agreement, the following terms are defined as follows:\n(a)\n"Cause" shall mean Employee's conviction of any felony, Employee's willful misconduct in connection with the performance\nof Employee's duties with Company, or Employee's taking illegal action in Employee's business or personal life that harms the reputation or\ndamages the good name of Company.\n(b)\n"Change of Control" shall mean any of the following (i) members of the Board of Directors on the date hereof ("Incumbent\nBoard") cease for any reason to constitute a majority thereof, provided that persons subsequently becoming directors with the approval of\ndirectors constituting at least two-thirds (2/3) of the Incumbent Board (either by a specific vote or by approval of the proxy statement of the\nCompany in which such person is named as a nominee for director, without written objection to such nomination) will be considered as members\nof\nthe\nIncumbent\nBoard\nprovided,\nhowever,\nthat\nno\nindividual\ninitially\nelected\nor\nnominated\nas\na\ndirector\nof\nthe\nCompany\nas\na\nresult\nof\nan\nactual\nor threatened election contest (as described in Rule 14a-11 under the Securities Exchange Act of 1934 (the "Act")) ("Election Contest") or any\nother actual or threatened solicitation of proxies or consents by or on behalf of any "person" (as such term is defined in Section 3(a)(9) of the\nAct) other than the Board ("Proxy Contest"), including by reason of any agreement intended to avoid or settle any Election Contest or Proxy\nContest, shall be deemed to be a member of the Incumbent Board, or (ii) any person as defined in the Act, other than the Company, a Company\nsubsidiary, any employee benefit plan (or related trust) sponsored or maintained by the Company or any\n2\nCompany subsidiary, any employee or any group of persons including an employee (or any entity controlled by an employee or any group of\npersons\nincluding\nan\nemployee)\nor\nan\nunderwriter\ntemporarily\nholding\nsecurities\npursuant\nto\nan\noffering\nof\nsuch\nsecurities,\nis\nor\nbecomes\nthe\nbeneficial owner, directly or indirectly, of 30% or more of the company's voting securities, or (iii) the consummation of a merger, consolidation,\nstatutory share exchange or similar form of corporate transaction involving the Company, or any of its subsidiaries that requires the approval of\nthe Company's stockholders, whether for such transaction or the issuance of securities in the transaction, or the sale or other disposition of all or\nsubstantially all of the Company's assets to an unaffiliated entity, unless immediately after such corporate transaction or sale, (A) more than\n60%\nof the total voting securities of the corporation resulting from such corporate transaction or sale (or if applicable, the ultimate parent corporation\nthat directly or indirectly has beneficial ownership of 100% of the voting securities eligible to elect directors of the surviving company)\nis\nrepresented by voting securities of the Company that were outstanding immediately prior to such corporate transaction or sale (or by shares into\nwhich such Company voting securities were converted pursuant to such corporate transaction or sale) and such voting power among the holders\nthereof is in substantially the same proportion as the voting power of such Company voting securities among the holders thereof immediately\nprior to the corporate transaction or sale, (B) no person (other than any employee benefit plan (or related trust) sponsored or maintained by the\nsurviving company or the parent company), is or becomes the beneficial owner, directly or indirectly, of 30% or more of the total voting power of\nthe outstanding voting securities eligible to elect directors of the parent company (or, if there is no parent company, the surviving company) and\n(C) at least a majority of the members of the board of directors of the parent company (or, if there is no parent company, the surviving company)\nfollowing the consummation of the corporate transaction or sale were members of the Incumbent Board at the time of the Board's approval of the\nexecution of the initial agreement providing for such corporate transaction or sale (any corporate transaction or sale which satisfies all of the\ncriteria specified in (A) (B) and (C) above shall be deemed to be a "Non-Qualifying Transaction"); or (iv) the Company's shareholders approve a\nplan of complete liquidation or dissolution of the Company. Notwithstanding the foregoing, a Change of Control shall not be deemed to occur\nsolely because any person acquires beneficial ownership of more than 30% of the Company voting securities as a result of the acquisition of\nCompany voting securities by the Company which reduces the number of Company voting securities outstanding; provided that if after such\nacquisition by the Company such person becomes the beneficial owner of additional Company voting securities that increases the percentage of\noutstanding Company voting securities beneficially owned by such person, a Change of Control of the Company shall then occur.\n(c)\n"Constructive Discharge" shall mean conduct by the Company that would lead a reasonable person to leave employment due to\nintolerable conditions created by the Company, reduction of the Employee's base salary (except in the event of a generally proportionate\nreduction of all of the Management Committee members' salaries), the cessation of the Employee being a member of the Management\nCommittee (provided, however, that in the event Employee voluntarily steps down from the Management\n3\nCommittee, this Agreement shall become void three months from that date), changing Employee's reporting relationship that results in Employee\nreporting to someone who is not a member of the Management Committee, the Chairman or the Chief Executive Officer, changing Employee's\nreporting relationship or reducing his/her responsibilities such that it would cause a reasonable person to resign and causes Employee to resign,\nor requiring Employee to accept a position that would reasonably require relocation.\n(d)\n"Restricted Period" shall mean the twelve (12) month period following the Employee's termination of employment.\n(e)\n"Management Committee" shall mean the most senior policy setting group of executives within the Company, excluding the\nChairman and the Chief Executive Officer.\nSECTION 3.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION.\n(a)\nEmployee recognizes that the Company has developed information that is confidential, proprietary and/or nonpublic that\nis\nrelated to its business, operations, services, finances, clients, customers, policyholders, vendors and agents ("Confidential Information").\nEmployee\nunderstands\nand\nagrees\nthat\nhe/she\nis\nprohibited\nfrom\nusing,\ndisclosing,\ndivulging\nor\nmisappropriating\nany\nConfidentia\nInformation\nfor his/her own personal benefit or for the benefit of any person or entity, except that Employee may disclose Confidential Information pursuant\nto a properly issued subpoena, court order, other legal process, or official inquiry of a federal, state or local taxing authority, or other\ngovernmental\nagency\nwith\na\nlegitimate\nlegal\nright\nto\nknow\nthe\nConfidential\nInformation.\nIf\ndisclosure\nis\ncompelled\nof\nEmployee\nby\nsubpoena,\ncourt order or other legal process, or as otherwise required by law, Employee agrees to notify Company as soon as notice of such process\nis\nreceived and before disclosure and/or appearance takes place. Employee will use reasonable and prudent care to safeguard and prevent the\nunauthorized use or disclosure of Confidential Information. Confidentia Information shall not include any information that: (a) is or becomes a\npart of the public domain through no act or omission of Employee or is otherwise available to the public other than by breach of this Agreement;\n(b) was in Employee's lawful possession prior to the disclosure and had not been obtained by Employee either directly or indirectly as a result\nof\nEmployee's employment with or other service to the Company; (c) is disclosed to Employee by a third party who has authority from the\nCompany to make such disclosure and such disclosure to Employee is not confidential; or (d) is independently developed by Employee outside\nof Employee's employment with the Company and without the use of any Confidential Information. Employee further acknowledges that\nEmployee, in the course of employment, has had and will have access to such Confidential Information.\n(b)\nEmployee agrees that every document, computer disk, electronic file, computerized information, computer software program,\nnotation, record, diary, memorandum, development, investigation, or the like, and any method or manner of doing business of the Company\ncontaining Confidential Information made or acquired by\n4\nthe Employee during employment by the Company is and shall be the sole and exclusive property of Company. The Employee will deliver the\nsame (and every copy, disk, abstract, summary, or reproduction of the same made by or for the Employee or acquired by the Employee)\nwhenever the Company may so require and in any event prior to or at the termination of employment. Nothing in Section 3 is intended or shall\nbe interpreted to mean that the Company may withhold information, including computerized information, relating to Employee's personal\ncontacts and personal information that may be stored or contained in Employee's physical or electronic files. The Company further agrees not to\nunreasonably withhold information relating to Employee's business-related contacts, to the extent such information falls outside the definition of\nConfidential Information set forth in Section 3(a) above.\nSECTION 4.\nNON-SOLICITATIONNON-INTERFERENCE.\nThe parties understand and agree that this Agreement is intended to protect the Company against the Employee raiding its employees\nand/or its business during the Restricted Period, while recognizing that after his/her termination, Employee is still permitted to freely compete\nwith the Company, except to the extent Confidentia Information is used in such solicitation and subject to certain restrictions set forth below.\nFurther, nothing in this Agreement is intended to grant or limit any rights or claims as to any future employer of Employee. To this end, any\ncourt considering the enforcement of this Agreement for a breach of this Agreement, must accept this statement of intent.\n(a)\nAfter Employee has left the employment of the Company and during the Restricted Period, Employee will not seek to\nrecruit\nor\nsolicit, or assist in recruiting or soliciting, participate in or promote the solicitation of, interfere with, attempt to influence or otherwise affect the\nemployment of any person who was or is employed by the Company at any time during the last three months of Employee's employment or\nthereafter. Further, Employee shall not, on behalf of himself/herself or any other person, hire, employ or engage any such person. The parties\nagree\nthat Employee shall not directly engage in the aforesaid conduct through a third party for the purpose of colluding to avoid the restrictions\nin this Agreement. However, nothing in this Agreement precludes Employee from directing a third party (including but not limited to employees\nof his/her subsequent employer or a search firm) to broadly solicit, recruit, and hire individuals, some of whom may be employees of the\nCompany, provided that Employee does not specifically direct such third party to specifically target the Company's employees generally or\nspecific individual employees of the Company.\n(b)\nAfter Employee has left the employment of the Company, accepts a position as an employee, consultant or contractor with a\ndirect competitor of the Company, and during the Restricted Period, Employee will not utilize Confidential Information to seek to solicit or assist\nin soliciting, participate in or otherwise promote the solicitation of, interference with, attempt to influence or otherwise affect any person or\nentity, who is a client, customer, policyholder, or agent of the Company, to discontinue business with the Company, and/or move that business\nelsewhere. Employee also agrees\n5\nnot to be directly and personally involved in the negotiation or solicitation of any individual book roll over(s) or other book of business transfer\narrangements\ninvolving\nthe\ntransfer\nof\nbusiness\naway\nfrom\nCompany,\neven\nif\nConfidential\nInformation\nis\nnot\ninvolved.\nHowever,\nnothing\nin\nthis\nAgreement precludes the Employee from directing a third party (including but not limited to employees of his/her subsequent employer) to\nsolicit, compete for, negotiate and execute book roll over deals or other book of business transfer arrangements provided that (i) Confidential\nInformation provided by the Employee is not used, (ii) Employee is not personally and directly involved in such negotiations, and (iii) Employee\ndoes not direct such third party to target specific agents of Company. Furthermore, nothing in this Agreement precludes the Employee from\nfreely competing with the Company including but not limited to competing on an account by account or deal by deal basis to the extent that\nhe/she does not use Confidential Information.\n(c)\nThis Section 4 is inapplicable in the event Employee accepts and signs the Waiver and Release as described in Section 12(e).\nSECTION 5.\nATTORNEYS' FEES.\nIf a dispute arises concerning the terms and conditions of this Agreement, Employee and Company agree to pay their own respective\nattorneys' fees and costs.\nSECTION 6.\nEXTENSION OF OBLIGATIONS.\nIf Employee breaches any of the provisions of Section 4 of this Agreement, and if the Company brings legal action for injunctive relief\nduring the Restricted Period and injunctive relief is ordered by a court of competent jurisdiction, then one day of additional time shall be added to\nthe restriction for each day of noncompliance, up to a maximum of twelve (12) months, so that the Company is given the benefit of Employee's\ncompliance with the restriction for twelve (12) months following employment as agreed. If, however, the Company takes no action within the\nRestricted Period, then the Company shall have no right to bring a legal action under this Agreement against Employee.\nSECTION 7.\nCONSENT TO JURISDICTION.\nJurisdiction and venue for enforcement of this Agreement, and for resolution of any dispute under this Agreement, shall be exclusively\nin the federal or state courts in the state and county where the Employee resides at the time that the Company commences an enforcement\naction. Employee agrees to advise the Company's General Counsel of his/her residence during the Restricted Period.\n6\nSECTION 8.\nEMPLOYMENT-AT-WILL.\nEmployee specifically recognizes and agrees that nothing in this Agreement shall be deemed to change the existing employment\nrelationship between the Employee and the Company, and that this Agreement is not an employment agreement for continued employment.\nSECTION 9.\nGOVERNING LAW.\nThis Agreement shall be construed interpreted in accordance with the laws of the State of Minnesota.\nSECTION 10.\nWAIVER\nThe waiver of a breach of any provision of this Agreement shall not operate as or be construed as a waiver of any subsequent breach of\nthis Agreement. To the extent that a common law duty exists with respect to the use of Confidential Information that would cause the Company\nirreparable harm, Employee recognizes and acknowledges his/her obligation to abide by that duty both before and after the Restricted Period.\nSECTION 11.\nSEVERABILITY.\nIf any provision, section or subsection of this Agreement is adjudged by any court to be void or unenforceable in whole or in part, this\nadjudication shall not affect the validity of the remainder of the Agreement, including any other provision, section or subsection. Each provision,\nsection, and subsection of this Agreement is separable from every other provision, section and subsection and constitutes a separate\nand\ndistinct\ncovenant. Both Employee and the Company agree that if any court rules that a restriction contained in this Agreement is unenforceable as\nwritten, the parties will meet and confer to negotiate the reformation of the provision.\nSECTION 12.\nASSIGNMENT AND EXPIRATION OF AGREEMENT.\n(a)\nThis Agreement is not assignable by Employee or the Company without the written consent of the other party.\n(b)\nIt is the intent of the Company that all members of the Management Committee will sign and be bound by the terms of this\nAgreement.\nThe\nCompany\nalso\nagrees\nthat\nall\nfuture\nManagement\nCommittee\nmembers\nwill\nbe\nrequired\nto\nsign\na\nnon-solicitation\nnon-disclosure\nagreement within thirty (30) days of joining the Management Committee, such agreement to be on the same terms as this Agreement, except for\n7\nconforming changes, technical changes and corrections which are not more favorable to such person than as provided in this Agreement as then\nin effect.\n(c) The Company agrees that it will not amend, alter, modify, or otherwise change the terms of the non-solicitation non-disclosure\nagreement for any present or future Management Committee member, except as referenced in Sections 12(b) or 12(f). If the Company amends,\nalters, modifies or otherwise changes the terms of the non-solicitation nondisclosure agreement for any present or future Management Committee\nmember such that the terms are less restrictive than the terms set forth in this Agreement, the Company will modify the terms of this Agreement\nto\nreflect\nthe less restrictive terms. The Company agrees to notify Employee in writing within fourteen (14) days of its execution or modification\nof such a non-solicitation non-disclosure agreement with any present or future Management Committee member. Additionally, in the event that\nfuture members of the Management Committee are not required to execute this Agreement, do not sign the Agreement within thirty (30) days of\njoining the Management Committee, or any member of the Management Committee is no longer bound by this Agreement and permitted to\nremain on the Management Committee, then this Agreement shall immediately become void. The Company agrees to advise Employee within\nfourteen (14) days, that the Agreement has become void.\n(d)\nIn the event that Employee is removed from the Management Committee, and/or Employee is Constructively Discharged, then\nthis Agreement shall immediately become void; provided, however, that if the Employee is Constructively Discharged following a Change of\nControl, then Employee shall have the option upon written notice to the Company within 90 days following such Constructive Discharge to\ncause this Agreement to become void and, in the absence of making any such election, this Agreement shall remain in effect.\n(e)\nIn the event that Employee loses employment under the conditions as defined in the Severance Plan or as further defined in\nSection 1(b) and Employee accepts and signs the Waiver and Release, as defined and required by the Severance Plan, then Employee shall\nreceive the enhanced benefits set forth in Section 1(b), and the non-solicitation terms set forth in such Waiver and Release shall supersede the\nterms set forth in Section 4 hereof.\n(f) The Company may, from time to time, deem it necessary to enter into an agreement on a temporary basis that provides greater\nseverance benefits than are being provided in Section 1(b) when hiring a new member of the Management Committee or when asking an existing\nmember to relocate or asking a member to take a position substantially different from the member's current position. In the event those greater\nseverance benefits are provided for a period longer than 24 months, the benefits under this Agreement shall be enhanced, on a proportionate basis\n(for example, if such new member's benefit was increased by 12 months over Employee's benefit, then Employee's benefit would be increased\nby 12 months), to incorporate the increased benefits provided to the other employee.\n8\n(g)\nNotwithstanding Sections 12(b) and 12(c), the Company agrees that in the event Employee has an existing agreement in place\nwith Company with more restrictive non-solicitation and/or non-disclosure terms, those more restrictive terms will govern until their expiration,\nif any, at which time this Agreement will wholly take effect. In the event Employee has an existing agreement in place with Company with no or\nless restrictive non-solicitation and/or non-disclosure terms, the more restrictive terms contained in this Agreement will govern.\nSECTION 13. RELIEF\n(a)\nEmployee expressly acknowledges that the terms of Sections 3 and 4 are material to this Agreement. Employee further\nacknowledges and agrees that the Confidential Information acquired during Employee's employment with the Company is valuable and unique,\nand that any breach by Employee of the provisions of Sections 3 and 4 will cause the Company irreparable injury and damage that cannot\nreasonably or adequately be compensated by monetary damages. Employee, therefore, expressly agrees that the Company shall be entitled to\ninjunctive relief in a court of competent jurisdiction in accordance with the laws of the applicable jurisdiction.\n(b)\nThe parties agree that injunctive relief is the exclusive remedy that is available to the Company against Employee in the event\nthe Employee breaches this Agreement.\n(c)\nIf the Company takes no legal action within the Restricted Period, then it shall not be entitled to bring any legal action under\nthis Agreement against Employee or for any extension of the Restricted Period.\nSECTION 14.\nENTIRE AGREEMENT.\nThis Agreement constitutes the entire Agreement and understanding between the Company and the Employee concerning the subject\nmatters hereof and shall supersede and replace any previously executed non-solicitation non-disclosure agreement between the Company and\nEmployee. No modification, amendment, termination or waiver of this Agreement shall be binding unless in writing and signed by the\nEmployee and a duly authorized representative of the Company.\n9\nIN WITNESS WHEREOF, the Company and Employee have duly executed this Agreement under seal as of the day and year first\nabove written.\nTHE TRAVELERS COMPANIES, INC.\nBy:\nName: John P. Clifford Jr.\nTitle: Executive Vice President and Chief Human Resources Officer\nXXXXXXX\n10\nEXHIBIT A\nCovenants Not to Solicit/Hire/Interfere. Employee acknowledges and agrees that, by virtue of opportunities derived from Employee's access\nto Confidential Information and employment with the Company, Employee is capable of significantly and adversely impacting the existing\nrelationships of the Company Entities with their clients, customers, policyholders, vendors, consultants, employees, and/or agents. Employee\nacknowledges that the Company Entities have a legitimate interest in protecting these relationships against solicitation and/or interference by\nEmployee during Employee's employment and for a reasonable period of time following the Separation Date. Accordingly, the parties agree that\nthe covenants described in this Subsection III(E) and its subparts shall apply (i) during Employee's employment with the Company and (ii) for a\nduration of twelve (12) months following the Separation Date (together, "the Restricted Period"). Employee acknowledges and agrees that the\ncovenants described in this Subsection III(E) and its subparts are expressly intended to protect and preserve the legitimate business interests and\ngoodwill of the Company Entities. Employee acknowledges that the Consideration provides independent and fair consideration for these\ncovenants.\n1.\nNon-Solicitation/Non-Hire of Employees. Employee acknowledges that the Company Entities sustain their operations and\nthe\ngoodwill\nof\ntheir\nclients,\ncustomers,\npolicyholders,\nvendors,\nconsultants,\nproducers,\nagents\nand\nbrokers\n("Customers")\nthrough\ntheir\nemployees. The Company Entities have made significant investment in their employees and their ability to establish and maintain relationships\nwith each other and with the Company Entities' Customers in order to further their operations and cultivate goodwill. Employee acknowledges\nthat the loss of the Company Entities' employees could adversely affect its operations and jeopardize the goodwill that has been established\nthrough these employees, and that the Company Entities therefore have a legitimate interest in preventing the solicitation of their employees.\nAccordingly, Employee shall not, without the prior written consent of the Company, at any time during the Restricted Period, directly or\nindirectly, seek to recruit or solicit, attempt to influence or assist, participate in or promote the solicitation of, or otherwise attempt to adversely\naffect the employment of any person who was or is employed by any Company Entity on the Separation Date or was employed by any Company\nEntity within twelve (12) months prior to the Separation Date or thereafter. Without limiting the foregoing restriction, Employee shall not,\non\nbehalf\nof Employee or any other person, hire, employ or engage any such person and shall not engage in the aforesaid conduct through a third\nparty for the purpose of colluding to avoid the restrictions in this Section. Without limiting the generality of the restrictions under this Section,\nby way of example, the restrictions under this Section shall prohibit Employee from (i) interviewing a Company Entity employee,\n(ii) communicating in any manner with a Company Entity employee in connection with a current or future employment opportunity outside of\nthe Company, (iii) identifying Company Entity employees to potentially be solicited or hired, (iv) providing information or feedback regarding\nCompany Entity employees seeking employment with the Employees subsequent employer and/or (v) otherwise assisting or participating\nin\nthe\nsolicitation or hiring of a Company Entity employee. Employee further agrees that, during such time, if a person who is employed by any\nCompany Entity contacts Employee about prospective employment, Employee will inform such person that Employee cannot discuss the matter,\nunless and until consent of the Company has been obtained. Employee shall not provide any other person the name of, or information regarding,\nany person employed by any Company Entity who contacts Employee about prospective employment. For purposes of this Subsection III(E)(1)\nrequests for consent must be delivered via overnight mail (signature required) to John P. Clifford, Jr., Travelers, Executive Vice President of\nHuman Resources, 385 Washington Street, Mail Code SBO2W, St. Paul, MN 55102-1396 (or his successor), with a copy via overnight mail\n(signature required) to Kenneth F. Spence, III, Travelers, Executive Vice President and General Counsel, 385 Washington Street, Mail Code\nLC12L, St. Paul, MN 55102-1396 (or his successor).\n2.\nNon-Solicitation of and Non-Interference with Existing Commercial Relationships. Employee acknowledges that by\nvirtue\nof\nhis\nor\nher\nemployment\nwith\nthe\nCompany,\nEmployee\nhas\ndeveloped\nrelationships\nwith\nand/or\nhad\naccess\nto\nConfidential\nInformation\nabout the Company Entities' Customers and is, therefore, capable of significantly and adversely impacting existing relationships that the\nCompany Entities have with them. Employee further acknowledges that the Company Entities have invested in their and Employee's\nrelationship with the Company Entities' Customers and the goodwill that has been developed with them, and therefore have a legitimate interest\nin protecting these relationships against solicitation and/or interference by Employee for a reasonable period of time after the Separation Date.\nAccordingly, Employee shall not, without the prior written consent of the Company, at any time during the Restricted Period, directly or\nindirectly, solicit any person or entity, who or that, as of the Separation Date, was or is a Customer of any Company Entity, to discontinue\nbusiness with any Company Entity and/or move that business elsewhere, or otherwise change an existing customer relationship with any\nCompany Entity. Employee further agrees that, during such time, if such a Customer contacts Employee about discontinuing business with any\nCompany Entity, and/or moving that business elsewhere, or otherwise changing an existing commercial relationship with any Company Entity,\nEmployee will inform such Customer that Employee cannot discuss the matter without notifying the Company. Prior to any discussion of the\nmatter, Employee is obligated to notify the Company of the name of the person who made the contact, the Customer with whom the person is\naffiliated, and the nature and date of the contact. After notifying the Company of the contact, Employee must receive written consent from the\nCompany before discussing the matter with such Customer. For purposes of this Subsection III(E)(2), requests for consent must be delivered via\novernight mail (signature required) to the current Executive Vice President or Senior Vice President of the business unit for which Employee\nworked as of the Separation Date, with a copy via overnight mail (signature required) to Kenneth F. Spence, III, Travelers, Executive Vice\nPresident and General Counsel, 385 Washington Street, Mail Code LC12L, St. Paul, MN 55102-1396 (or his successor).	EX-10.35 2 a2230860zex-10_35.htm EX-10.35\nExhibit 10.35\nAMENDED AND RESTATED NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT\nTHIS AMENDED AND RESTATED NON-SOLICITATION AND NON-DISCLOSURE AGREEMENT (“Agreement”) is made and entered\ninto this\nth day of\n,\n20 , by and between The Travelers Companies, Inc., a Minnesota corporation, including its present and future\naffiliated entities (collectively, the “Company”), and XXXX (the “Employee”).\nWITNESSETH:\nWHEREAS, the Employee is employed by the Company; and\nWHEREAS, the Company is engaged in the business of underwriting and selling insurance and insurance-related products throughout\nthe United States.\nNOW, THEREFORE, in consideration of the promises and the mutual covenants and obligations hereinafter set forth, the parties agree\nas follows:\nSECTION 1.\nCONSIDERATION.\n(a)\nAs consideration for the execution of this Agreement, the Employee acknowledges receipt of the amount of Five Thousand\nDollars ($5,000.00) (“the Consideration”), to the extent not previously paid in connection with the execution of a prior version of this\nAgreement, which constitutes good, valuable and independent consideration for all of Employee’s covenants and obligations in this Agreement\nand is above and beyond any compensation Employee is entitled to receive from the Company.\n(b)\nAs further consideration for the execution of this Agreement, the Employee shall be eligible to participate in and receive the\nbenefits of the executive severance plan as set forth in Schedule B of The Travelers Severance Plan (as amended and restated effective January 1,\n2015) (the “Severance Plan”), in the event Employee is involuntarily terminated because of a reduction in force, involuntarily terminated for\nreasons other than Cause (as defined in Section 2) or asked to take a substantial demotion, and otherwise pursuant to the terms and conditions of\nthe Severance Plan and regardless of any amendment to or termination of the Severance Plan, except that for the purpose of Schedule B, the\nnumber of months of severance benefit shall in no event be less than 21 months and the “total monthly cash compensation” shall in no event be\nless than one twelfth (1/12) of the Employee’s base salary in effect at the time of his/her termination of employment (“final base salary”) plus the\ngreater of (i) one twelfth (1/12) of the average of his/her two most recent cash payments under the annual incentive compensation plan of the\nCompany, or (ii) one twelfth (1/12) of 125% of the final base salary for any Employee who is serving the Employer in a position of Executive\nVice President or equivalent (as determined by Company and the position of Vice Chairman is\ndeemed to be equivalent to Executive Vice President); and 110% of the final base salary of any Employee who is serving the Employer in a\nposition of Senior Vice President or equivalent (as determined by Company). Further, in order to be eligible for benefits under the Severance\nPlan, Employee will be required to, among other things, execute a Waiver and Release, as defined in the Severance Plan, in a form satisfactory to\nCompany. (The current standard non-solicitation clauses included in the Waiver and Release are attached and incorporated herein for your\nreference as Exhibit A.) Nothing in this Agreement is intended or may be interpreted to amend or revise the Severance Plan, except as set forth\nand applicable herein. Schedule B of the Severance Plan, as in effect as of the date hereof (“Schedule B”), is incorporated herein by reference.\nSuch Schedule B, together with the above described enhanced benefit set forth a schedule of minimum severance for Employee and other\nmembers of the Management Committee. To the extent the Company revises the existing Severance Plan to increase the benefits, Employee will\nbe entitled to the greater of (i) the new increased benefits under the Severance Plan or (ii) the Severance Plan benefits in existence at the time this\nAgreement was executed, in each case, with any additional enhancements as applicable pursuant to this Section 1(b). To the extent Company\nrevises the Severance Plan to decrease benefits or adopts a Severance Plan which allows for a benefit to be paid that is less than that set forth in\nSchedule B, Employee shall be entitled to the benefits set forth in Schedule B, as modified by this Section 1(b).\nSECTION 2.\nDEFINITIONS\nFor purposes of this Agreement, the following terms are defined as follows:\n(a)\n“Cause” shall mean Employee’s conviction of any felony, Employee’s willful misconduct in connection with the performance\nof Employee’s duties with Company, or Employee’s taking illegal action in Employee’s business or personal life that harms the reputation or\ndamages the good name of Company.\n(b)\n“Change of Control” shall mean any of the following (i) members of the Board of Directors on the date hereof (“Incumbent\nBoard”) cease for any reason to constitute a majority thereof, provided that persons subsequently becoming directors with the approval of\ndirectors constituting at least two-thirds (2/3) of the Incumbent Board (either by a specific vote or by approval of the proxy statement of the\nCompany in which such person is named as a nominee for director, without written objection to such nomination) will be considered as members\nof the Incumbent Board provided, however, that no individual initially elected or nominated as a director of the Company as a result of an actual\nor threatened election contest (as described in Rule 14a-11 under the Securities Exchange Act of 1934 (the “Act”)) (“Election Contest”) or any\nother actual or threatened solicitation of proxies or consents by or on behalf of any “person” (as such term is defined in Section 3(a)(9) of the\nAct) other than the Board (“Proxy Contest”), including by reason of any agreement intended to avoid or settle any Election Contest or Proxy\nContest, shall be deemed to be a member of the Incumbent Board, or (ii) any person as defined in the Act, other than the Company, a Company\nsubsidiary, any employee benefit plan (or related trust) sponsored or maintained by the Company or any\n2\nCompany subsidiary, any employee or any group of persons including an employee (or any entity controlled by an employee or any group of\npersons including an employee) or an underwriter temporarily holding securities pursuant to an offering of such securities, is or becomes the\nbeneficial owner, directly or indirectly, of 30% or more of the company’s voting securities, or (iii) the consummation of a merger, consolidation,\nstatutory share exchange or similar form of corporate transaction involving the Company, or any of its subsidiaries that requires the approval of\nthe Company’s stockholders, whether for such transaction or the issuance of securities in the transaction, or the sale or other disposition of all or\nsubstantially all of the Company’s assets to an unaffiliated entity, unless immediately after such corporate transaction or sale, (A) more than 60%\nof the total voting securities of the corporation resulting from such corporate transaction or sale (or if applicable, the ultimate parent corporation\nthat directly or indirectly has beneficial ownership of 100% of the voting securities eligible to elect directors of the surviving company) is\nrepresented by voting securities of the Company that were outstanding immediately prior to such corporate transaction or sale (or by shares into\nwhich such Company voting securities were converted pursuant to such corporate transaction or sale) and such voting power among the holders\nthereof is in substantially the same proportion as the voting power of such Company voting securities among the holders thereof immediately\nprior to the corporate transaction or sale, (B) no person (other than any employee benefit plan (or related trust) sponsored or maintained by the\nsurviving company or the parent company), is or becomes the beneficial owner, directly or indirectly, of 30% or more of the total voting power of\nthe outstanding voting securities eligible to elect directors of the parent company (or, if there is no parent company, the surviving company) and\n(C) at least a majority of the members of the board of directors of the parent company (or, if there is no parent company, the surviving company)\nfollowing the consummation of the corporate transaction or sale were members of the Incumbent Board at the time of the Board’s approval of the\nexecution of the initial agreement providing for such corporate transaction or sale (any corporate transaction or sale which satisfies all of the\ncriteria specified in (A) (B) and (C) above shall be deemed to be a “Non-Qualifying Transaction”); or (iv) the Company’s shareholders approve a\nplan of complete liquidation or dissolution of the Company. Notwithstanding the foregoing, a Change of Control shall not be deemed to occur\nsolely because any person acquires beneficial ownership of more than 30% of the Company voting securities as a result of the acquisition of\nCompany voting securities by the Company which reduces the number of Company voting securities outstanding; provided that if after such\nacquisition by the Company such person becomes the beneficial owner of additional Company voting securities that increases the percentage of\noutstanding Company voting securities beneficially owned by such person, a Change of Control of the Company shall then occur.\n(c)\n“Constructive Discharge” shall mean conduct by the Company that would lead a reasonable person to leave employment due to\nintolerable conditions created by the Company, reduction of the Employee’s base salary (except in the event of a generally proportionate\nreduction of all of the Management Committee members’ salaries), the cessation of the Employee being a member of the Management\nCommittee (provided, however, that in the event Employee voluntarily steps down from the Management\n3\nCommittee, this Agreement shall become void three months from that date), changing Employee’s reporting relationship that results in Employee\nreporting to someone who is not a member of the Management Committee, the Chairman or the Chief Executive Officer, changing Employee’s\nreporting relationship or reducing his/her responsibilities such that it would cause a reasonable person to resign and causes Employee to resign,\nor requiring Employee to accept a position that would reasonably require relocation.\n(d)\n“Restricted Period” shall mean the twelve (12) month period following the Employee’s termination of employment.\n(e)\n“Management Committee” shall mean the most senior policy setting group of executives within the Company, excluding the\nChairman and the Chief Executive Officer.\nSECTION 3.\nNON-DISCLOSURE OF CONFIDENTIAL INFORMATION.\n(a)\nEmployee recognizes that the Company has developed information that is confidential, proprietary and/or nonpublic that is\nrelated to its business, operations, services, finances, clients, customers, policyholders, vendors and agents (“Confidential Information”).\nEmployee understands and agrees that he/she is prohibited from using, disclosing, divulging or misappropriating any Confidential Information\nfor his/her own personal benefit or for the benefit of any person or entity, except that Employee may disclose Confidential Information pursuant\nto a properly issued subpoena, court order, other legal process, or official inquiry of a federal, state or local taxing authority, or other\ngovernmental agency with a legitimate legal right to know the Confidential Information. If disclosure is compelled of Employee by subpoena,\ncourt order or other legal process, or as otherwise required by law, Employee agrees to notify Company as soon as notice of such process is\nreceived and before disclosure and/or appearance takes place. Employee will use reasonable and prudent care to safeguard and prevent the\nunauthorized use or disclosure of Confidential Information. Confidential Information shall not include any information that: (a) is or becomes a\npart of the public domain through no act or omission of Employee or is otherwise available to the public other than by breach of this Agreement;\n(b) was in Employee’s lawful possession prior to the disclosure and had not been obtained by Employee either directly or indirectly as a result of\nEmployee’s employment with or other service to the Company; (c) is disclosed to Employee by a third party who has authority from the\nCompany to make such disclosure and such disclosure to Employee is not confidential; or (d) is independently developed by Employee outside\nof Employee’s employment with the Company and without the use of any Confidential Information. Employee further acknowledges that\nEmployee, in the course of employment, has had and will have access to such Confidential Information.\n(b)\nEmployee agrees that every document, computer disk, electronic file, computerized information, computer software program,\nnotation, record, diary, memorandum, development, investigation, or the like, and any method or manner of doing business of the Company\ncontaining Confidential Information made or acquired by\n4\nthe Employee during employment by the Company is and shall be the sole and exclusive property of Company. The Employee will deliver the\nsame (and every copy, disk, abstract, summary, or reproduction of the same made by or for the Employee or acquired by the Employee)\nwhenever the Company may so require and in any event prior to or at the termination of employment. Nothing in Section 3 is intended or shall\nbe interpreted to mean that the Company may withhold information, including computerized information, relating to Employee’s personal\ncontacts and personal information that may be stored or contained in Employee’s physical or electronic files. The Company further agrees not to\nunreasonably withhold information relating to Employee’s business-related contacts, to the extent such information falls outside the definition of\nConfidential Information set forth in Section 3(a) above.\nSECTION 4.\nNON-SOLICITATION/NON-INTERFERENCE.\nThe parties understand and agree that this Agreement is intended to protect the Company against the Employee raiding its employees\nand/or its business during the Restricted Period, while recognizing that after his/her termination, Employee is still permitted to freely compete\nwith the Company, except to the extent Confidential Information is used in such solicitation and subject to certain restrictions set forth below.\nFurther, nothing in this Agreement is intended to grant or limit any rights or claims as to any future employer of Employee. To this end, any\ncourt considering the enforcement of this Agreement for a breach of this Agreement, must accept this statement of intent.\n(a)\nAfter Employee has left the employment of the Company and during the Restricted Period, Employee will not seek to recruit or\nsolicit, or assist in recruiting or soliciting, participate in or promote the solicitation of, interfere with, attempt to influence or otherwise affect the\nemployment of any person who was or is employed by the Company at any time during the last three months of Employee’s employment or\nthereafter. Further, Employee shall not, on behalf of himself/herself or any other person, hire, employ or engage any such person. The parties\nagree that Employee shall not directly engage in the aforesaid conduct through a third party for the purpose of colluding to avoid the restrictions\nin this Agreement. However, nothing in this Agreement precludes Employee from directing a third party (including but not limited to employees\nof his/her subsequent employer or a search firm) to broadly solicit, recruit, and hire individuals, some of whom may be employees of the\nCompany, provided that Employee does not specifically direct such third party to specifically target the Company’s employees generally or\nspecific individual employees of the Company.\n(b)\nAfter Employee has left the employment of the Company, accepts a position as an employee, consultant or contractor with a\ndirect competitor of the Company, and during the Restricted Period, Employee will not utilize Confidential Information to seek to solicit or assist\nin soliciting, participate in or otherwise promote the solicitation of, interference with, attempt to influence or otherwise affect any person or\nentity, who is a client, customer, policyholder, or agent of the Company, to discontinue business with the Company, and/or move that business\nelsewhere. Employee also agrees\n5\nnot to be directly and personally involved in the negotiation or solicitation of any individual book roll over(s) or other book of business transfer\narrangements involving the transfer of business away from Company, even if Confidential Information is not involved. However, nothing in this\nAgreement precludes the Employee from directing a third party (including but not limited to employees of his/her subsequent employer) to\nsolicit, compete for, negotiate and execute book roll over deals or other book of business transfer arrangements provided that (i) Confidential\nInformation provided by the Employee is not used, (ii) Employee is not personally and directly involved in such negotiations, and (iii) Employee\ndoes not direct such third party to target specific agents of Company. Furthermore, nothing in this Agreement precludes the Employee from\nfreely competing with the Company including but not limited to competing on an account by account or deal by deal basis to the extent that\nhe/she does not use Confidential Information.\n(c)\nThis Section 4 is inapplicable in the event Employee accepts and signs the Waiver and Release as described in Section 12(e).\nSECTION 5.\nATTORNEYS’ FEES.\nIf a dispute arises concerning the terms and conditions of this Agreement, Employee and Company agree to pay their own respective\nattorneys’ fees and costs.\nSECTION 6.\nEXTENSION OF OBLIGATIONS.\nIf Employee breaches any of the provisions of Section 4 of this Agreement, and if the Company brings legal action for injunctive relief\nduring the Restricted Period and injunctive relief is ordered by a court of competent jurisdiction, then one day of additional time shall be added to\nthe restriction for each day of noncompliance, up to a maximum of twelve (12) months, so that the Company is given the benefit of Employee’s\ncompliance with the restriction for twelve (12) months following employment as agreed. If, however, the Company takes no action within the\nRestricted Period, then the Company shall have no right to bring a legal action under this Agreement against Employee.\nSECTION 7.\nCONSENT TO JURISDICTION.\nJurisdiction and venue for enforcement of this Agreement, and for resolution of any dispute under this Agreement, shall be exclusively\nin the federal or state courts in the state and county where the Employee resides at the time that the Company commences an enforcement\naction. Employee agrees to advise the Company’s General Counsel of his/her residence during the Restricted Period.\n6\nSECTION 8.\nEMPLOYMENT-AT-WILL.\nEmployee specifically recognizes and agrees that nothing in this Agreement shall be deemed to change the existing employment\nrelationship between the Employee and the Company, and that this Agreement is not an employment agreement for continued employment.\nSECTION 9.\nGOVERNING LAW.\nThis Agreement shall be construed interpreted in accordance with the laws of the State of Minnesota.\nSECTION 10.\nWAIVER.\nThe waiver of a breach of any provision of this Agreement shall not operate as or be construed as a waiver of any subsequent breach of\nthis Agreement. To the extent that a common law duty exists with respect to the use of Confidential Information that would cause the Company\nirreparable harm, Employee recognizes and acknowledges his/her obligation to abide by that duty both before and after the Restricted Period.\nSECTION 11.\nSEVERABILITY.\nIf any provision, section or subsection of this Agreement is adjudged by any court to be void or unenforceable in whole or in part, this\nadjudication shall not affect the validity of the remainder of the Agreement, including any other provision, section or subsection. Each provision,\nsection, and subsection of this Agreement is separable from every other provision, section and subsection and constitutes a separate and distinct\ncovenant. Both Employee and the Company agree that if any court rules that a restriction contained in this Agreement is unenforceable as\nwritten, the parties will meet and confer to negotiate the reformation of the provision.\nSECTION 12.\nASSIGNMENT AND EXPIRATION OF AGREEMENT.\n(a)\nThis Agreement is not assignable by Employee or the Company without the written consent of the other party.\n(b)\nIt is the intent of the Company that all members of the Management Committee will sign and be bound by the terms of this\nAgreement. The Company also agrees that all future Management Committee members will be required to sign a non-solicitation non-disclosure\nagreement within thirty (30) days of joining the Management Committee, such agreement to be on the same terms as this Agreement, except for\n7\nconforming changes, technical changes and corrections which are not more favorable to such person than as provided in this Agreement as then\nin effect.\n(c) The Company agrees that it will not amend, alter, modify, or otherwise change the terms of the non-solicitation non-disclosure\nagreement for any present or future Management Committee member, except as referenced in Sections 12(b) or 12(f). If the Company amends,\nalters, modifies or otherwise changes the terms of the non-solicitation nondisclosure agreement for any present or future Management Committee\nmember such that the terms are less restrictive than the terms set forth in this Agreement, the Company will modify the terms of this Agreement\nto reflect the less restrictive terms. The Company agrees to notify Employee in writing within fourteen (14) days of its execution or modification\nof such a non-solicitation non-disclosure agreement with any present or future Management Committee member. Additionally, in the event that\nfuture members of the Management Committee are not required to execute this Agreement, do not sign the Agreement within thirty (30) days of\njoining the Management Committee, or any member of the Management Committee is no longer bound by this Agreement and permitted to\nremain on the Management Committee, then this Agreement shall immediately become void. The Company agrees to advise Employee within\nfourteen (14) days, that the Agreement has become void.\n(d)\nIn the event that Employee is removed from the Management Committee, and/or Employee is Constructively Discharged, then\nthis Agreement shall immediately become void; provided, however, that if the Employee is Constructively Discharged following a Change of\nControl, then Employee shall have the option upon written notice to the Company within 90 days following such Constructive Discharge to\ncause this Agreement to become void and, in the absence of making any such election, this Agreement shall remain in effect.\n(e)\nIn the event that Employee loses employment under the conditions as defined in the Severance Plan or as further defined in\nSection 1(b) and Employee accepts and signs the Waiver and Release, as defined and required by the Severance Plan, then Employee shall\nreceive the enhanced benefits set forth in Section 1(b), and the non-solicitation terms set forth in such Waiver and Release shall supersede the\nterms set forth in Section 4 hereof.\n(f)\nThe Company may, from time to time, deem it necessary to enter into an agreement on a temporary basis that provides greater\nseverance benefits than are being provided in Section 1(b) when hiring a new member of the Management Committee or when asking an existing\nmember to relocate or asking a member to take a position substantially different from the member ’s current position. In the event those greater\nseverance benefits are provided for a period longer than 24 months, the benefits under this Agreement shall be enhanced, on a proportionate basis\n(for example, if such new member’s benefit was increased by 12 months over Employee’s benefit, then Employee’s benefit would be increased\nby 12 months), to incorporate the increased benefits provided to the other employee.\n8\n(g)\nNotwithstanding Sections 12(b) and 12(c), the Company agrees that in the event Employee has an existing agreement in place\nwith Company with more restrictive non-solicitation and/or non-disclosure terms, those more restrictive terms will govern until their expiration,\nif any, at which time this Agreement will wholly take effect. In the event Employee has an existing agreement in place with Company with no or\nless restrictive non-solicitation and/or non-disclosure terms, the more restrictive terms contained in this Agreement will govern.\nSECTION 13. RELIEF\n(a)\nEmployee expressly acknowledges that the terms of Sections 3 and 4 are material to this Agreement. Employee further\nacknowledges and agrees that the Confidential Information acquired during Employee’s employment with the Company is valuable and unique,\nand that any breach by Employee of the provisions of Sections 3 and 4 will cause the Company irreparable injury and damage that cannot\nreasonably or adequately be compensated by monetary damages. Employee, therefore, expressly agrees that the Company shall be entitled to\ninjunctive relief in a court of competent jurisdiction in accordance with the laws of the applicable jurisdiction.\n(b)\nThe parties agree that injunctive relief is the exclusive remedy that is available to the Company against Employee in the event\nthe Employee breaches this Agreement.\n(c)\nIf the Company takes no legal action within the Restricted Period, then it shall not be entitled to bring any legal action under\nthis Agreement against Employee or for any extension of the Restricted Period.\nSECTION 14.\nENTIRE AGREEMENT.\nThis Agreement constitutes the entire Agreement and understanding between the Company and the Employee concerning the subject\nmatters hereof and shall supersede and replace any previously executed non-solicitation non-disclosure agreement between the Company and\nEmployee. No modification, amendment, termination or waiver of this Agreement shall be binding unless in writing and signed by the\nEmployee and a duly authorized representative of the Company.\n9\nIN WITNESS WHEREOF, the Company and Employee have duly executed this Agreement under seal as of the day and year first\nabove written.\nTHE TRAVELERS COMPANIES, INC.\nBy:\nName: John P. Clifford Jr.\nTitle: Executive Vice President and Chief Human Resources Officer\nXXXXXXX\n10\nEXHIBIT A\nCovenants Not to Solicit/Hire/Interfere. Employee acknowledges and agrees that, by virtue of opportunities derived from Employee’s access\nto Confidential Information and employment with the Company, Employee is capable of significantly and adversely impacting the existing\nrelationships of the Company Entities with their clients, customers, policyholders, vendors, consultants, employees, and/or agents. Employee\nacknowledges that the Company Entities have a legitimate interest in protecting these relationships against solicitation and/or interference by\nEmployee during Employee’s employment and for a reasonable period of time following the Separation Date. Accordingly, the parties agree that\nthe covenants described in this Subsection III(E) and its subparts shall apply (i) during Employee’s employment with the Company and (ii) for a\nduration of twelve (12) months following the Separation Date (together, “the Restricted Period”). Employee acknowledges and agrees that the\ncovenants described in this Subsection III(E) and its subparts are expressly intended to protect and preserve the legitimate business interests and\ngoodwill of the Company Entities. Employee acknowledges that the Consideration provides independent and fair consideration for these\ncovenants.\n1.\nNon-Solicitation/Non-Hire of Employees. Employee acknowledges that the Company Entities sustain their operations and\nthe goodwill of their clients, customers, policyholders, vendors, consultants, producers, agents and brokers (“Customers”) through their\nemployees. The Company Entities have made significant investment in their employees and their ability to establish and maintain relationships\nwith each other and with the Company Entities’ Customers in order to further their operations and cultivate goodwill. Employee acknowledges\nthat the loss of the Company Entities’ employees could adversely affect its operations and jeopardize the goodwill that has been established\nthrough these employees, and that the Company Entities therefore have a legitimate interest in preventing the solicitation of their employees.\nAccordingly, Employee shall not, without the prior written consent of the Company, at any time during the Restricted Period, directly or\nindirectly, seek to recruit or solicit, attempt to influence or assist, participate in or promote the solicitation of, or otherwise attempt to adversely\naffect the employment of any person who was or is employed by any Company Entity on the Separation Date or was employed by any Company\nEntity within twelve (12) months prior to the Separation Date or thereafter. Without limiting the foregoing restriction, Employee shall not, on\nbehalf of Employee or any other person, hire, employ or engage any such person and shall not engage in the aforesaid conduct through a third\nparty for the purpose of colluding to avoid the restrictions in this Section. Without limiting the generality of the restrictions under this Section,\nby way of example, the restrictions under this Section shall prohibit Employee from (i) interviewing a Company Entity employee,\n(ii) communicating in any manner with a Company Entity employee in connection with a current or future employment opportunity outside of\nthe Company, (iii) identifying Company Entity employees to potentially be solicited or hired, (iv) providing information or feedback regarding\nCompany Entity employees seeking employment with the Employees subsequent employer and/or (v) otherwise assisting or participating in the\nsolicitation or hiring of a Company Entity employee. Employee further agrees that, during such time, if a person who is employed by any\nCompany Entity contacts Employee about prospective employment, Employee will inform such person that Employee cannot discuss the matter,\nunless and until consent of the Company has been obtained. Employee shall not provide any other person the name of, or information regarding,\nany person employed by any Company Entity who contacts Employee about prospective employment. For purposes of this Subsection III(E)(1),\nrequests for consent must be delivered via overnight mail (signature required) to John P. Clifford, Jr., Travelers, Executive Vice President of\nHuman Resources, 385 Washington Street, Mail Code SB02W, St. Paul, MN 55102-1396 (or his successor), with a copy via overnight mail\n(signature required) to Kenneth F. Spence, III, Travelers, Executive Vice President and General Counsel, 385 Washington Street, Mail Code\nLC12L, St. Paul, MN 55102-1396 (or his successor).\n2.\nNon-Solicitation of and Non-Interference with Existing Commercial Relationships. Employee acknowledges that by\nvirtue of his or her employment with the Company, Employee has developed relationships with and/or had access to Confidential Information\nabout the Company Entities’ Customers and is, therefore, capable of significantly and adversely impacting existing relationships that the\nCompany Entities have with them. Employee further acknowledges that the Company Entities have invested in their and Employee’s\nrelationship with the Company Entities’ Customers and the goodwill that has been developed with them, and therefore have a legitimate interest\nin protecting these relationships against solicitation and/or interference by Employee for a reasonable period of time after the Separation Date.\nAccordingly, Employee shall not, without the prior written consent of the Company, at any time during the Restricted Period, directly or\nindirectly, solicit any person or entity, who or that, as of the Separation Date, was or is a Customer of any Company Entity, to discontinue\nbusiness with any Company Entity and/or move that business elsewhere, or otherwise change an existing customer relationship with any\nCompany Entity. Employee further agrees that, during such time, if such a Customer contacts Employee about discontinuing business with any\nCompany Entity, and/or moving that business elsewhere, or otherwise changing an existing commercial relationship with any Company Entity,\nEmployee will inform such Customer that Employee cannot discuss the matter without notifying the Company. Prior to any discussion of the\nmatter, Employee is obligated to notify the Company of the name of the person who made the contact, the Customer with whom the person is\naffiliated, and the nature and date of the contact. After notifying the Company of the contact, Employee must receive written consent from the\nCompany before discussing the matter with such Customer. For purposes of this Subsection III(E)(2), requests for consent must be delivered via\novernight mail (signature required) to the current Executive Vice President or Senior Vice President of the business unit for which Employee\nworked as of the Separation Date, with a copy via overnight mail (signature required) to Kenneth F. Spence, III, Travelers, Executive Vice\nPresident and General Counsel, 385 Washington Street, Mail Code LC12L, St. Paul, MN 55102-1396 (or his successor).
+c14ccb5886fe78f6966af9d7e2f9c036.pdf	effective_date jurisdiction party term	EX-10.9 11 dex109.htm FORM OF CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nExhibit 10.9\nCONFIDENTIALITY AND NONCOMPETITION\nAGREEMENT\nThis CONFIDENTIALITY AND NONCOMPETITION AGREEMENT (this “Agreement”) is made and entered into as of this day of\n, 2004, by and between American Campus Communities, Inc. (the “Company”) and\n(the “Executive”).\nWITNESSETH:\nWHEREAS, the Company and Executive have entered into an employment agreement (the “Employment Agreement”) on a date even\nherewith; and\nWHEREAS, the Company, as a condition of entering into the Employment Agreement, desires to obtain certain restrictive covenants\nfrom Executive, as described below, and Executive is willing to agree to such restrictive covenants in consideration of compensation and benefits set\nforth in the Employment Agreement.\nNOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for other good and valuable\nconsideration, the receipt of which is mutually acknowledged, the Company and Executive agree as follows:\nSection 1. Definitions.\n(a) “Board” shall mean the Board of Directors of the Company.\n(b) “Cause” shall have the meaning set forth in the Employment Agreement.\n(c) “Change in Control” shall have the meaning set forth in the Employment Agreement.\n(d) “Competitive Activities” shall mean any business activities involving the development, acquisition, sale or management of facilities\nwhose primary function and purpose is student housing and/or the provision of third party student housing services to providers of student housing.\n(e) “Confidential Information” shall have the meaning set forth in Section 3 hereof.\n(f) “Developments” shall have the meaning set forth in Section 7 hereof.\n(g) “Good Reason” shall have the meaning set forth in the Employment Agreement.\n(h) “Restricted Period” shall mean the period commencing on the Effective Date and ending on (i) the second (2nd) anniversary of\nExecutive’s termination of employment for by the Company for Cause or by Executive without Good Reason, or (ii) the first (1st) anniversary of\nExecutive’s termination of employment (A) by the Company other than for Cause; (B) by Executive with Good Reason; or (C) by Executive for any\nreason at any time during the one-year period following a Change in Control.\n(i) “Term of Employment” shall have the meaning set forth in the Employment Agreement.\nSection 2. Reasonableness of Covenants.\nExecutive acknowledges and agrees that (A) the agreements and covenants contained in this Agreement are (i) reasonable and valid in\ngeographical and temporal scope and in all other respects, and (ii) essential to protect the value of the Company’s business and assets, and (B) by his\nemployment with the Company, Executive will obtain knowledge, contacts, know-how, training and experience and there is a substantial probability\nthat such knowledge, know-how, contacts, training and experience could be used to the substantial advantage of a competitor of the Company and to\nthe Company’s substantial detriment.\nSection 3. Confidential Information.\nAt any time during and after the end of the Term of Employment, without the prior written consent of the Board, except to the extent\nrequired by an order of a court having jurisdiction or under subpoena from an appropriate government agency, in which event, Executive shall use\nhis best efforts to consult with the Board prior to responding to any such order or subpoena, and except as required in the performance of his duties\nunder the Employment Agreement, Executive shall not disclose any confidential or proprietary trade secrets, customer lists, drawings, designs,\ninformation regarding product development, marketing plans, sales plans, manufacturing plans, management organization information, operating\npolicies or manuals, business plans, financial records, packaging design or other financial, commercial, business or technical information (a) relating\nto the Company, or (b) that the Company or any of its affiliates may receive belonging to suppliers, customers or others who do business with the\nCompany (“Confidential Information”). Executive’s obligation under this Section 3 shall not apply to any information which (i) is known publicly;\n(ii) is in the public domain or hereafter enters the public domain without the breach of the Executive of this Section 3; (iii) is known to Executive\nprior to his receipt of such information from the Company, as evidenced by Executive’s written records; or (iv) is disclosed after termination of\nExecutive’s employment to Executive by a third party not under an obligation of confidence to the Company.\nSection 4. Non-Competition.\nExecutive covenants and agrees that during the Restricted Period, in any jurisdiction in which the Company is engaged in business at the\ntime of such termination, Executive shall not, directly or indirectly: (a) engage in Competitive Activities, whether individually or as principal,\npartner, officer, director, consultant, employee, stockholder or manager of any person, partnership, corporation, limited liability company or any\nother entity; or (b) own interests in student housing properties that are competitive, directly or indirectly, with any business carried on by the\nCompany, it successors, or its subsidiaries and affiliates. Notwithstanding the foregoing, Executive may, directly or indirectly, own, solely as an\ninvestment, securities of any entity engaged in Competitive Activities which are publicly traded\non a national or regional stock exchange or on the over-the-counter market; provided that Executive (A) is not a controlling person of, or member of\na group which controls, such entity and (B) does not, directly or indirectly, own 2% or more of any class of securities of any such entity.\nSection 5. Non-Solicitation; Non-Interference.\nDuring the Restricted Period, Executive shall not, directly or indirectly, for his own account or for the account of any other individual or\nentity, nor shall he assist any person or entity to (i) encourage, solicit or induce, or in any manner attempt to solicit or induce, any person employed\nby, as agent of, or a service provider to, the Company to terminate such person’s employment, agency or service, as the case may be, with the\nCompany; or (ii) divert, or attempt to divert, any person, concern, or entity from doing business with the Company or any of its subsidiaries, or\nattempt to induce any such person, concern or entity to cease being a customer or supplier of the Company.\nSection 6. Return of Documents.\nIn the event of the termination of Executive’s employment for any reason, Executive shall deliver to the Company all of (i) the property\nof the Company, and (ii) the documents and data of any nature and in whatever medium of the Company, and he shall not take with him any such\nproperty, documents or data or any reproduction thereof, or any documents containing or pertaining to any Confidential Information.\nSection 7. Works for Hire.\nExecutive agrees that the Company shall own all right, title and interest (including patent rights, copyrights, trade secret rights, mask\nwork rights and other rights throughout the world) in any inventions, works of authorship, mask works, ideas or information made or conceived or\nreduced to practice, in whole or in part, by Executive (either alone or with others) during the Term of Employment that relate to the Company’s\nbusiness activities (the “Developments”); provided, however, that the Company shall not own Developments for which no equipment, supplies,\nfacility, trade secret information or Confidential Information of the Company was used and which were developed entirely on Executive’s time, and\nwhich do not relate (A) to the business of the Company or its affiliates, or (B) to the Company’s or its affiliates’ actual or demonstrably anticipated\nresearch or development. Subject to the foregoing, Executive will promptly and fully disclose to the Company, or any persons designated by it, any\nand all Developments made or conceived or reduced to practice or learned by Executive, either alone or jointly with others during the Term of\nEmployment that relate to the Company’s business activities. Executive hereby assigns all right, title and interest in and to any and all of these\nDevelopments to the Company. Executive agrees to assist the Company, at the Company’s expense, to further evidence, record and perfect such\nassignments, and to perfect, obtain, maintain, enforce, and defend any rights specified to be so owned or assigned. Executive hereby irrevocably\ndesignates and appoints the Company and its agents as attorneys-in-fact to act for and on Executive’s behalf to execute and file any document and to\ndo all other lawfully permitted acts to further the purposes of the foregoing with the same legal force and effect as if executed by Executive. In\naddition, and not in contravention of any of the foregoing, Executive\nacknowledges that all original works of authorship which are made by him (solely or jointly with others) within the scope of employment and which\nare protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act (17 USC Sec. 101). To the extent\nallowed by law, this includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as\n“moral rights.” To the extent Executive retains any such moral rights under applicable law, Executive hereby waives such moral rights and consents\nto any action consistent with the terms of this Agreement with respect to such moral rights, in each case, to the full extent of such applicable law.\nExecutive will confirm any such waivers and consents from time to time as requested by the Company.\nSection 8. Blue Pencil.\nIf any court of competent jurisdiction shall at any time deem the duration or the geographic scope of any of the provisions of this\nAgreement unenforceable, the other provisions of this Agreement shall nevertheless stand and the duration and/or geographic scope set forth herein\nshall be deemed to be the longest period and/or greatest size permissible by law under the circumstances, and the parties hereto agree that such court\nshall reduce the time period and/or geographic scope to permissible duration or size.\nSection 9. Injunctive Relief.\nWithout intending to limit the remedies available to the Company, Executive acknowledges that a breach of any of the covenants\ncontained in this Agreement may result in material irreparable injury to the Company or its subsidiaries or affiliates for which there is no adequate\nremedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of such a breach or threat thereof, the\nCompany shall be entitled to obtain a temporary restraining order and/or a preliminary or permanent injunction, without the necessity of proving\nirreparable harm or injury as a result of such breach or threatened breach of this Agreement, restraining Executive from engaging in activities\nprohibited by this Agreement or such other relief as may be required specifically to enforce any of the covenants in this Agreement. Notwithstanding\nany other provision to the contrary, the Restricted Period shall be tolled during any period of violation of any of the covenants in Section 4 or Section\n5 hereof and during any other period required for litigation during which the Company seeks to enforce this covenant against Executive if it is\nultimately determined that such person was in breach of such covenants.\nSection 10. Successors and Assigns.\nThis Agreement shall inure to the benefit of and be enforceable by, and may be assigned by the Company to, any purchaser of all or\nsubstantially all of the Company’s business or assets, any successor to the Company or any assignee thereof (whether direct or indirect, by purchase,\nmerger, consolidation or otherwise).\nSection 11. Waiver and Amendments.\nAny waiver, alteration, amendment or modification of any of the terms of this Agreement shall be valid only if made in writing and\nsigned by the parties hereto; provided, however, that any such waiver, alteration, amendment or modification is consented to on the\nCompany’s behalf by the Board. No waiver by either of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with\nrespect to any subsequent occurrences or transactions hereunder unless such waiver specifically states that it is to be construed as a continuing\nwaiver.\nSection 12. Severability and Governing Law.\nIf any covenants or such other provisions of this Agreement are found to be invalid or unenforceable by a final determination of a court\nof competent jurisdiction: (a) the remaining terms and provisions hereof shall be unimpaired, and (b) the invalid or unenforceable term or provision\nhereof shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid\nor unenforceable term or provision hereof. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH\nTHE LAWS OF THE STATE OF TEXAS (WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF) APPLICABLE\nTO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.\nSection 13. Section Headings.\nThe headings of the sections and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute a\npart thereof, affect the meaning or interpretation of this Agreement or of any term or provision hereof.\nSection 14. Entire Agreement.\nThis Agreement constitutes the entire understanding and agreement of the parties hereto regarding the subject matter hereof. This\nAgreement supersedes all prior negotiations, discussions, correspondence, communications, understandings and agreements between the parties\nrelating to the subject matter of this Agreement.\nSection 15. Counterparts.\nThis Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which together\nshall constitute one and the same instrument. The execution of this Agreement may be by actual or facsimile signature.\n***\n[Signatures to appear on the following page.]\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written.\nAMERICAN CAMPUS\nCOMMUNITIES, INC.\nBy:\nTitle:\nExecutive	EX-10.9 11 dex109.htm FORM OF CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nExhibit 10.9\nCONFIDENTIALITY AND NONCOMPETITION\nAGREEMENT\nThis CONFIDENTIALITY AND NONCOMPETITION AGREEMENT (this “Agreement”) is made and entered into as of this __ day of\n, 2004, by and between American Campus Communities, Inc. (the “Company”) and (the “Executive”).\n \nWITNESSETH:\nWHEREAS, the Company and Executive have entered into an employment agreement (the “Employment Agreement”) on a date even\nherewith; and\nWHEREAS, the Company, as a condition of entering into the Employment Agreement, desires to obtain certain restrictive covenants\nfrom Executive, as described below, and Executive is willing to agree to such restrictive covenants in consideration of compensation and benefits set\nforth in the Employment Agreement.\nNOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for other good and valuable\nconsideration, the receipt of which is mutually acknowledged, the Company and Executive agree as follows:\nSection 1. Definitions.\n(a) “Board” shall mean the Board of Directors of the Company.\n(b) “Cause” shall have the meaning set forth in the Employment Agreement.\n(c) “Change in Control” shall have the meaning set forth in the Employment Agreement.\n(d) “Competitive Activities” shall mean any business activities involving the development, acquisition, sale or management of facilities\nwhose primary function and purpose is student housing and/or the provision of third party student housing services to providers of student housing.\n(e) “Confidential Information” shall have the meaning set forth in Section 3 hereof.\n(f) “Developments” shall have the meaning set forth in Section 7 hereof.\n(g) “Good Reason” shall have the meaning set forth in the Employment Agreement.\n(h) “Restricted Period” shall mean the period commencing on the Effective Date and ending on (i) the second (279) anniversary of\nExecutive’s termination of employment for by the Company for Cause or by Executive without Good Reason, or (ii) the first (1) anniversary of\nExecutive’s termination of employment (A) by the Company other than for Cause; (B) by Executive with Good Reason; or (C) by Executive for any\nreason at any time during the one-year period following a Change in Control.\n(i) “Term of Employment” shall have the meaning set forth in the Employment Agreement.\nSection 2. Reasonableness of Covenants.\nExecutive acknowledges and agrees that (A) the agreements and covenants contained in this Agreement are (i) reasonable and valid in\ngeographical and temporal scope and in all other respects, and (ii) essential to protect the value of the Company’s business and assets, and (B) by his\nemployment with the Company, Executive will obtain knowledge, contacts, know-how, training and experience and there is a substantial probability\nthat such knowledge, know-how, contacts, training and experience could be used to the substantial advantage of a competitor of the Company and to\nthe Company’s substantial detriment.\nSection 3. Confidential Information.\nAt any time during and after the end of the Term of Employment, without the prior written consent of the Board, except to the extent\nrequired by an order of a court having jurisdiction or under subpoena from an appropriate government agency, in which event, Executive shall use\nhis best efforts to consult with the Board prior to responding to any such order or subpoena, and except as required in the performance of his duties\nunder the Employment Agreement, Executive shall not disclose any confidential or proprietary trade secrets, customer lists, drawings, designs,\ninformation regarding product development, marketing plans, sales plans, manufacturing plans, management organization information, operating\npolicies or manuals, business plans, financial records, packaging design or other financial, commercial, business or technical information (a) relating\nto the Company, or (b) that the Company or any of its affiliates may receive belonging to suppliers, customers or others who do business with the\nCompany (“Confidential Information”). Executive’s obligation under this Section 3 shall not apply to any information which (i) is known publicly;\n(ii) is in the public domain or hereafter enters the public domain without the breach of the Executive of this Section 3; (iii) is known to Executive\nprior to his receipt of such information from the Company, as evidenced by Executive’s written records; or (iv) is disclosed after termination of\nExecutive’s employment to Executive by a third party not under an obligation of confidence to the Company.\nSection 4. Non-Competition.\nExecutive covenants and agrees that during the Restricted Period, in any jurisdiction in which the Company is engaged in business at the\ntime of such termination, Executive shall not, directly or indirectly: (a) engage in Competitive Activities, whether individually or as principal,\npartner, officer, director, consultant, employee, stockholder or manager of any person, partnership, corporation, limited liability company or any\nother entity; or (b) own interests in student housing properties that are competitive, directly or indirectly, with any business carried on by the\nCompany, it successors, or its subsidiaries and affiliates. Notwithstanding the foregoing, Executive may, directly or indirectly, own, solely as an\ninvestment, securities of any entity engaged in Competitive Activities which are publicly traded\non a national or regional stock exchange or on the over-the-counter market; provided that Executive (A) is not a controlling person of, or member of\na group which controls, such entity and (B) does not, directly or indirectly, own 2% or more of any class of securities of any such entity.\nSection 5. Non-Solicitation; Non-Interference.\nDuring the Restricted Period, Executive shall not, directly or indirectly, for his own account or for the account of any other individual or\nentity, nor shall he assist any person or entity to (i) encourage, solicit or induce, or in any manner attempt to solicit or induce, any person employed\nby, as agent of, or a service provider to, the Company to terminate such person’s employment, agency or service, as the case may be, with the\nCompany; or (ii) divert, or attempt to divert, any person, concern, or entity from doing business with the Company or any of its subsidiaries, or\nattempt to induce any such person, concern or entity to cease being a customer or supplier of the Company.\nSection 6. Return of Documents.\nIn the event of the termination of Executive’s employment for any reason, Executive shall deliver to the Company all of (i) the property\nof the Company, and (ii) the documents and data of any nature and in whatever medium of the Company, and he shall not take with him any such\nproperty, documents or data or any reproduction thereof, or any documents containing or pertaining to any Confidential Information.\nSection 7. Works for Hire.\nExecutive agrees that the Company shall own all right, title and interest (including patent rights, copyrights, trade secret rights, mask\nwork rights and other rights throughout the world) in any inventions, works of authorship, mask works, ideas or information made or conceived or\nreduced to practice, in whole or in part, by Executive (either alone or with others) during the Term of Employment that relate to the Company’s\nbusiness activities (the “Developments”); provided, however, that the Company shall not own Developments for which no equipment, supplies,\nfacility, trade secret information or Confidential Information of the Company was used and which were developed entirely on Executive’s time, and\nwhich do not relate (A) to the business of the Company or its affiliates, or (B) to the Company’s or its affiliates’ actual or demonstrably anticipated\nresearch or development. Subject to the foregoing, Executive will promptly and fully disclose to the Company, or any persons designated by it, any\nand all Developments made or conceived or reduced to practice or learned by Executive, either alone or jointly with others during the Term of\nEmployment that relate to the Company’s business activities. Executive hereby assigns all right, title and interest in and to any and all of these\nDevelopments to the Company. Executive agrees to assist the Company, at the Company’s expense, to further evidence, record and perfect such\nassignments, and to perfect, obtain, maintain, enforce, and defend any rights specified to be so owned or assigned. Executive hereby irrevocably\ndesignates and appoints the Company and its agents as attorneys-in-fact to act for and on Executive’s behalf to execute and file any document and to\ndo all other lawfully permitted acts to further the purposes of the foregoing with the same legal force and effect as if executed by Executive. In\naddition, and not in contravention of any of the foregoing, Executive\nacknowledges that all original works of authorship which are made by him (solely or jointly with others) within the scope of employment and which\nare protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act (17 USC Sec. 101). To the extent\nallowed by law, this includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as\n“moral rights.” To the extent Executive retains any such moral rights under applicable law, Executive hereby waives such moral rights and consents\nto any action consistent with the terms of this Agreement with respect to such moral rights, in each case, to the full extent of such applicable law.\nExecutive will confirm any such waivers and consents from time to time as requested by the Company.\nSection 8. Blue Pencil.\nIf any court of competent jurisdiction shall at any time deem the duration or the geographic scope of any of the provisions of this\nAgreement unenforceable, the other provisions of this Agreement shall nevertheless stand and the duration and/or geographic scope set forth herein\nshall be deemed to be the longest period and/or greatest size permissible by law under the circumstances, and the parties hereto agree that such court\nshall reduce the time period and/or geographic scope to permissible duration or size.\nSection 9. Injunctive Relief.\nWithout intending to limit the remedies available to the Company, Executive acknowledges that a breach of any of the covenants\ncontained in this Agreement may result in material irreparable injury to the Company or its subsidiaries or affiliates for which there is no adequate\nremedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of such a breach or threat thereof, the\nCompany shall be entitled to obtain a temporary restraining order and/or a preliminary or permanent injunction, without the necessity of proving\nirreparable harm or injury as a result of such breach or threatened breach of this Agreement, restraining Executive from engaging in activities\nprohibited by this Agreement or such other relief as may be required specifically to enforce any of the covenants in this Agreement. Notwithstanding\nany other provision to the contrary, the Restricted Period shall be tolled during any period of violation of any of the covenants in Section 4 or Section\n5 hereof and during any other period required for litigation during which the Company seeks to enforce this covenant against Executive if it is\nultimately determined that such person was in breach of such covenants.\nSection 10. Successors and Assigns.\nThis Agreement shall inure to the benefit of and be enforceable by, and may be assigned by the Company to, any purchaser of all or\nsubstantially all of the Company’s business or assets, any successor to the Company or any assignee thereof (whether direct or indirect, by purchase,\nmerger, consolidation or otherwise).\nSection 11. Waiver and Amendments.\nAny waiver, alteration, amendment or modification of any of the terms of this Agreement shall be valid only if made in writing and\nsigned by the parties hereto; provided, however, that any such waiver, alteration, amendment or modification is consented to on the\nCompany’s behalf by the Board. No waiver by either of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with\nrespect to any subsequent occurrences or transactions hereunder unless such waiver specifically states that it is to be construed as a continuing\nwaiver.\nSection 12. Severability and Governing Law.\nIf any covenants or such other provisions of this Agreement are found to be invalid or unenforceable by a final determination of a court\nof competent jurisdiction: (a) the remaining terms and provisions hereof shall be unimpaired, and (b) the invalid or unenforceable term or provision\nhereof shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid\nor unenforceable term or provision hereof. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH\nTHE LAWS OF THE STATE OF TEXAS (WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF) APPLICABLE\nTO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.\nSection 13. Section Headings.\nThe headings of the sections and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute a\npart thereof, affect the meaning or interpretation of this Agreement or of any term or provision hereof.\nSection 14. Entire Agreement.\nThis Agreement constitutes the entire understanding and agreement of the parties hereto regarding the subject matter hereof. This\nAgreement supersedes all prior negotiations, discussions, correspondence, communications, understandings and agreements between the parties\nrelating to the subject matter of this Agreement.\nSection 15. Counterparts.\nThis Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which together\nshall constitute one and the same instrument. The execution of this Agreement may be by actual or facsimile signature.\nSk oSk ok\n[Signatures to appear on the following page.]\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written.\nAMERICAN CAMPUS\nCOMMUNITIES, INC.\nBy:\nTitle:\nExecutive	EX-10.9 11 dex109.htm FORM OF CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nExhibit 10.9\nCONFIDENTIALITY AND NONCOMPETITION\nAGREEMENT\nThis CONFIDENTIALITY AND NONCOMPETITION AGREEMENT (this "Agreement") is made and entered into as of this day\nof\n2004, by and between American Campus Communities, Inc. (the "Company.") and\n(the "Executive").\nVITNESSETH\nWHEREAS, the Company and Executive have entered into an employment agreement (the "Employment Agreement") on a date even\nherewith; and\nWHEREAS, the Company, as a condition of entering into the Employment Agreement, desires to obtain certain restrictive covenants\nfrom Executive, as described below, and Executive is willing to agree to such restrictive covenants in consideration of compensation and benefits set\nforth in the Employment Agreement.\nNOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for other good and valuable\nconsideration, the receipt of which is mutually acknowledged, the Company and Executive agree as follows:\nSection 1. Definitions.\n(a) "Board" shall mean the Board of Directors of the Company.\n(b) "Cause" shall have the meaning set forth in the Employment Agreement.\n(c) "Change in Control" shall have the meaning set forth in the Employment Agreement.\n(d) "Competitive Activities" shall mean any business activities involving the development, acquisition, sale or management of facilities\nwhose primary function and purpose is student housing and/or the provision of third party student housing services to providers of student housing.\n(e) "Confidential Information" shall have the meaning set forth in Section 3 hereof.\n(f) "Developments" shall have the meaning set forth in Section 7 hereof.\n(g) "Good Reason" shall have the meaning set forth in the Employment Agreement.\n(h) "Restricted Period" shall mean the period commencing on the Effective Date and ending on (i) the second (2nd) anniversary of\nExecutive's termination of employment for by the Company for Cause or by Executive without Good Reason, or (ii) the first (1st) anniversary of\nExecutive's termination of employment (A) by the Company other than for Cause; (B) by Executive with Good Reason; or (C) by Executive for any\nreason at any time during the one-year period following a Change in Control.\n(i) "Term of Employment" shall have the meaning set forth in the Employment Agreement.\nSection 2. Reasonableness of Covenants.\nExecutive acknowledges and agrees that (A) the agreements and covenants contained in this Agreement are (i) reasonable and valid in\ngeographical and temporal scope and in all other respects, and (ii) essential to protect the value of the Company's business and assets, and (B) by his\nemployment with the Company, Executive will obtain knowledge, contacts, know-how, training and experience and there is a substantial probability\nthat such knowledge, know-how, contacts, training and experience could be used to the substantial advantage of a competitor of the Company and to\nthe Company's substantial detriment.\nSection 3. Confidential Information.\nAt any time during and after the end of the Term of Employment, without the prior written consent of the Board, except to the extent\nrequired by an order of a court having jurisdiction or under subpoena from an appropriate government agency, in which event, Executive shall use\nhis best efforts to consult with the Board prior to responding to any such order or subpoena, and except as required in the performance of his duties\nunder the Employment Agreement, Executive shall not disclose any confidential or proprietary trade secrets, customer lists, drawings, designs,\ninformation regarding product development, marketing plans, sales plans, manufacturing plans, management organization information, operating\npolicies or manuals, business plans, financial records, packaging design or other financial, commercial, business or technical information (a) relating\nto\nthe Company, or (b) that the Company or any of its affiliates may receive belonging to suppliers, customers or others who do business with the\nCompany ("Confidential Information"). Executive's obligation under this Section 3 shall not apply to any information which (i) is known publicly;\n(ii) is in the public domain or hereafter enters the public domain without the breach of the Executive of this Section 3; (iii) is known to Executive\nprior to his receipt of such information from the Company, as evidenced by Executive's written records; or (iv) is disclosed after termination of\nExecutive's employment to Executive by a third party not under an obligation of confidence to the Company.\nSection 4. Non-Competition\nExecutive covenants and agrees that during the Restricted Period, in any jurisdiction in which the Company is engaged in business at the\ntime of such termination, Executive shall not, directly or indirectly: (a) engage in Competitive Activities, whether individually or as principal,\npartner, officer, director, consultant, employee, stockholder or manager of any person, partnership, corporation, limited liability company or any\nother entity; or (b) own interests in student housing properties that are competitive, directly or indirectly, with any business carried on by the\nCompany, it successors, or its subsidiaries and affiliates. Notwithstanding the foregoing, Executive may, directly or indirectly, own, solely as\nan\ninvestment, securities of any entity engaged in Competitive Activities which are publicly traded\non a national or regional stock exchange or on the over-the-counter market; provided that Executive (A) is not a controlling person of, or member of\na group which controls, such entity and (B) does not, directly or indirectly, own 2% or more of any class of securities of any such entity.\nSection 5. Non-Solicitation; Non-Interference.\nDuring the Restricted Period, Executive shall not, directly or indirectly, for his own account or for the account of any other individual or\nentity, nor shall he assist any person or entity to (i) encourage, solicit or induce, or in any manner attempt to solicit or induce, any person employed\nby, as agent of, or a service provider to, the Company to terminate such person's employment, agency or service, as the case may be, with the\nCompany; or (ii) divert, or attempt to divert, any person, concern, or entity from doing business with the Company or any of its subsidiaries, or\nattempt to induce any such person, concern or entity to cease being a customer or supplier of the Company.\nSection 6. Return of Documents.\nIn the event of the termination of Executive's employment for any reason, Executive shall deliver to the Company all of (i) the property\nof\nthe Company, and (ii) the documents and data of any nature and in whatever medium of the Company, and he shall not take with him any such\nproperty, documents or data or any reproduction thereof, or any documents containing or pertaining to any Confidential Information.\nSection 7. Works for Hire.\nExecutive agrees that the Company shall own all right, title and interest (including patent rights, copyrights, trade secret rights, mask\nwork rights and other rights throughout the world) in any inventions, works of authorship, mask works, ideas or information made or conceived or\nreduced to practice, in whole or in part, by Executive (either alone or with others) during the Term of Employment that relate to the Company's\nbusiness activities (the "Developments"); provided however, that the Company shall not own Developments for which no equipment, supplies,\nfacility, trade secret information or Confidential Information of the Company was used and which were developed entirely on Executive's time, and\nwhich do not relate (A) to the business of the Company or its affiliates, or (B) to the Company's or its affiliates' actual or demonstrably anticipated\nresearch\nor development. Subject to the foregoing, Executive will promptly and fully disclose to the Company, or any persons designated by it, any\nand all Developments made or conceived or reduced to practice or learned by Executive, either alone or jointly with others during the Term of\nEmployment that relate to the Company's business activities. Executive hereby assigns all right, title and interest in and to any and all of these\nDevelopments\nto\nthe\nCompany. Executive agrees to assist the Company, at the Company's expense, to further evidence, record and perfect\nsuch\nassignments, and to perfect, obtain, maintain, enforce, and defend any rights specified to be so owned or assigned. Executive hereby irrevocably\ndesignates and appoints the Company and its agents as attorneys-in-fact to act for and on Executive's behalf to execute and file any document and\nto\ndo all other lawfully permitted acts to further the purposes of the foregoing with the same legal force and effect as if executed by Executive.\nIn\naddition, and not in contravention of any of the foregoing, Executive\nacknowledges that all original works of authorship which are made by him (solely or jointly with others) within the scope of employment and which\nare protectable by copyright are "'works made for hire," as that term is defined in the United States Copyright Act (17 USC Sec. 101). To the extent\nallowed by law, this includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as\n"moral rights." To the extent Executive retains any such moral rights under applicable law, Executive hereby waives such moral rights and consents\nto\nany action consistent with the terms of this Agreement with respect to such moral rights, in each case, to the full extent of such applicable law.\nExecutive will confirm any such waivers and consents from time to time as requested by the Company.\nSection 8. Blue Pencil.\nIf any court of competent jurisdiction shall at any time deem the duration or the geographic scope of any of the provisions of this\nAgreement unenforceable, the other provisions of this Agreement shall nevertheless stand and the duration and/or geographic scope set forth herein\nshall be deemed to be the longest period and/or greatest size permissible by law under the circumstances, and the parties hereto agree that such court\nshall reduce the time period and/or geographic scope to permissible duration or size.\nSection 9. Injunctive Relief.\nWithout intending to limit the remedies available to the Company, Executive acknowledges that a breach of any of the covenants\ncontained in this Agreement may result in material irreparable injury to the Company or its subsidiaries or affiliates for which there is no adequate\nremedy\nat\nlaw, that it will not be possible to measure damages for such injuries precisely and that, in the event of such a breach or threat thereof,\nthe\nCompany shall be entitled to obtain a temporary restraining order and/or a preliminary or permanent injunction, without the necessity of proving\nirreparable harm or injury as a result of such breach or threatened breach of this Agreement, restraining Executive from engaging in activities\nprohibited by this Agreement or such other relief as may be required specifically to enforce any of the covenants in this Agreement. Notwithstanding\nany other provision to the contrary, the Restricted Period shall be tolled during any period of violation of any of the covenants in Section 4 or Section\n5\nhereof and during any other period required for litigation during which the Company seeks to enforce this covenant against Executive if it is\nultimately determined that such person was in breach of such covenants.\nSection 10. Successors and Assigns.\nThis Agreement shall inure to the benefit of and be enforceable by, and may be assigned by the Company to, any purchaser of all or\nsubstantially all of the Company's business or assets, any successor to the Company or any assignee thereof (whether direct or indirect, by purchase,\nmerger, consolidation or otherwise).\nSection 11. Waiver and Amendments.\nAny waiver, alteration, amendment or modification of any of the terms of this Agreement shall be valid only if made in writing and\nsigned by the parties hereto; provided, however, that any such waiver, alteration, amendment or modification is consented to on the\nCompany's behalf by the Board. No waiver by either of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with\nrespect to any subsequent occurrences or transactions hereunder unless such waiver specifically states that it is to be construed as a continuing\nwaiver.\nSection 12. Severability and Governing Law.\nIf any covenants or such other provisions of this Agreement are found to be invalid or unenforceable by a final determination of a court\nof competent jurisdiction: (a) the remaining terms and provisions hereof shall be unimpaired, and (b) the invalid or unenforceable term or provision\nhereof shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid\nor unenforceable term or provision hereof. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH\nTHE LAWS OF THE STATE OF TEXAS (WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF) APPLICABLE\nTO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.\nSection 13. Section Headings.\nThe headings of the sections and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute a\npart thereof, affect the meaning or interpretation of this Agreement or of any term or provision hereof.\nSection 14. Entire Agreement.\nThis Agreement constitutes the entire understanding and agreement of the parties hereto regarding the subject matter hereof. This\nAgreement supersedes all prior negotiations, discussions, correspondence, communications, understandings and agreements between the parties\nrelating to the subject matter of this Agreement.\nSection 15. Counterparts.\nThis Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which together\nshall constitute one and the same instrument. The execution of this Agreement may be by actual or facsimile signature.\n* *\n[Signatures to appear on the following page.]\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written.\nAMERICAN CAMPUS\nCOMMUNITIES, INC.\nBy:\nTitle:\nExecutive	EX-10.9 11 dex109.htm FORM OF CONFIDENTIALITY AND NONCOMPETITION AGREEMENT\nExhibit 10.9\nCONFIDENTIALITY AND NONCOMPETITION\nAGREEMENT\nThis CONFIDENTIALITY AND NONCOMPETITION AGREEMENT (this “Agreement”) is made and entered into as of this day of\n, 2004, by and between American Campus Communities, Inc. (the “Company”) and\n(the “Executive”).\nWITNESSETH:\nWHEREAS, the Company and Executive have entered into an employment agreement (the “Employment Agreement”) on a date even\nherewith; and\nWHEREAS, the Company, as a condition of entering into the Employment Agreement, desires to obtain certain restrictive covenants\nfrom Executive, as described below, and Executive is willing to agree to such restrictive covenants in consideration of compensation and benefits set\nforth in the Employment Agreement.\nNOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for other good and valuable\nconsideration, the receipt of which is mutually acknowledged, the Company and Executive agree as follows:\nSection 1. Definitions.\n(a) “Board” shall mean the Board of Directors of the Company.\n(b) “Cause” shall have the meaning set forth in the Employment Agreement.\n(c) “Change in Control” shall have the meaning set forth in the Employment Agreement.\n(d) “Competitive Activities” shall mean any business activities involving the development, acquisition, sale or management of facilities\nwhose primary function and purpose is student housing and/or the provision of third party student housing services to providers of student housing.\n(e) “Confidential Information” shall have the meaning set forth in Section 3 hereof.\n(f) “Developments” shall have the meaning set forth in Section 7 hereof.\n(g) “Good Reason” shall have the meaning set forth in the Employment Agreement.\n(h) “Restricted Period” shall mean the period commencing on the Effective Date and ending on (i) the second (2nd) anniversary of\nExecutive’s termination of employment for by the Company for Cause or by Executive without Good Reason, or (ii) the first (1st) anniversary of\nExecutive’s termination of employment (A) by the Company other than for Cause; (B) by Executive with Good Reason; or (C) by Executive for any\nreason at any time during the one-year period following a Change in Control.\n(i) “Term of Employment” shall have the meaning set forth in the Employment Agreement.\nSection 2. Reasonableness of Covenants.\nExecutive acknowledges and agrees that (A) the agreements and covenants contained in this Agreement are (i) reasonable and valid in\ngeographical and temporal scope and in all other respects, and (ii) essential to protect the value of the Company’s business and assets, and (B) by his\nemployment with the Company, Executive will obtain knowledge, contacts, know-how, training and experience and there is a substantial probability\nthat such knowledge, know-how, contacts, training and experience could be used to the substantial advantage of a competitor of the Company and to\nthe Company’s substantial detriment.\nSection 3. Confidential Information.\nAt any time during and after the end of the Term of Employment, without the prior written consent of the Board, except to the extent\nrequired by an order of a court having jurisdiction or under subpoena from an appropriate government agency, in which event, Executive shall use\nhis best efforts to consult with the Board prior to responding to any such order or subpoena, and except as required in the performance of his duties\nunder the Employment Agreement, Executive shall not disclose any confidential or proprietary trade secrets, customer lists, drawings, designs,\ninformation regarding product development, marketing plans, sales plans, manufacturing plans, management organization information, operating\npolicies or manuals, business plans, financial records, packaging design or other financial, commercial, business or technical information (a) relating\nto the Company, or (b) that the Company or any of its affiliates may receive belonging to suppliers, customers or others who do business with the\nCompany (“Confidential Information”). Executive’s obligation under this Section 3 shall not apply to any information which (i) is known publicly;\n(ii) is in the public domain or hereafter enters the public domain without the breach of the Executive of this Section 3; (iii) is known to Executive\nprior to his receipt of such information from the Company, as evidenced by Executive’s written records; or (iv) is disclosed after termination of\nExecutive’s employment to Executive by a third party not under an obligation of confidence to the Company.\nSection 4. Non-Competition.\nExecutive covenants and agrees that during the Restricted Period, in any jurisdiction in which the Company is engaged in business at the\ntime of such termination, Executive shall not, directly or indirectly: (a) engage in Competitive Activities, whether individually or as principal,\npartner, officer, director, consultant, employee, stockholder or manager of any person, partnership, corporation, limited liability company or any\nother entity; or (b) own interests in student housing properties that are competitive, directly or indirectly, with any business carried on by the\nCompany, it successors, or its subsidiaries and affiliates. Notwithstanding the foregoing, Executive may, directly or indirectly, own, solely as an\ninvestment, securities of any entity engaged in Competitive Activities which are publicly traded\non a national or regional stock exchange or on the over-the-counter market; provided that Executive (A) is not a controlling person of, or member of\na group which controls, such entity and (B) does not, directly or indirectly, own 2% or more of any class of securities of any such entity.\nSection 5. Non-Solicitation; Non-Interference.\nDuring the Restricted Period, Executive shall not, directly or indirectly, for his own account or for the account of any other individual or\nentity, nor shall he assist any person or entity to (i) encourage, solicit or induce, or in any manner attempt to solicit or induce, any person employed\nby, as agent of, or a service provider to, the Company to terminate such person’s employment, agency or service, as the case may be, with the\nCompany; or (ii) divert, or attempt to divert, any person, concern, or entity from doing business with the Company or any of its subsidiaries, or\nattempt to induce any such person, concern or entity to cease being a customer or supplier of the Company.\nSection 6. Return of Documents.\nIn the event of the termination of Executive’s employment for any reason, Executive shall deliver to the Company all of (i) the property\nof the Company, and (ii) the documents and data of any nature and in whatever medium of the Company, and he shall not take with him any such\nproperty, documents or data or any reproduction thereof, or any documents containing or pertaining to any Confidential Information.\nSection 7. Works for Hire.\nExecutive agrees that the Company shall own all right, title and interest (including patent rights, copyrights, trade secret rights, mask\nwork rights and other rights throughout the world) in any inventions, works of authorship, mask works, ideas or information made or conceived or\nreduced to practice, in whole or in part, by Executive (either alone or with others) during the Term of Employment that relate to the Company’s\nbusiness activities (the “Developments”); provided, however, that the Company shall not own Developments for which no equipment, supplies,\nfacility, trade secret information or Confidential Information of the Company was used and which were developed entirely on Executive’s time, and\nwhich do not relate (A) to the business of the Company or its affiliates, or (B) to the Company’s or its affiliates’ actual or demonstrably anticipated\nresearch or development. Subject to the foregoing, Executive will promptly and fully disclose to the Company, or any persons designated by it, any\nand all Developments made or conceived or reduced to practice or learned by Executive, either alone or jointly with others during the Term of\nEmployment that relate to the Company’s business activities. Executive hereby assigns all right, title and interest in and to any and all of these\nDevelopments to the Company. Executive agrees to assist the Company, at the Company’s expense, to further evidence, record and perfect such\nassignments, and to perfect, obtain, maintain, enforce, and defend any rights specified to be so owned or assigned. Executive hereby irrevocably\ndesignates and appoints the Company and its agents as attorneys-in-fact to act for and on Executive’s behalf to execute and file any document and to\ndo all other lawfully permitted acts to further the purposes of the foregoing with the same legal force and effect as if executed by Executive. In\naddition, and not in contravention of any of the foregoing, Executive\nacknowledges that all original works of authorship which are made by him (solely or jointly with others) within the scope of employment and which\nare protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act (17 USC Sec. 101). To the extent\nallowed by law, this includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as\n“moral rights.” To the extent Executive retains any such moral rights under applicable law, Executive hereby waives such moral rights and consents\nto any action consistent with the terms of this Agreement with respect to such moral rights, in each case, to the full extent of such applicable law.\nExecutive will confirm any such waivers and consents from time to time as requested by the Company.\nSection 8. Blue Pencil.\nIf any court of competent jurisdiction shall at any time deem the duration or the geographic scope of any of the provisions of this\nAgreement unenforceable, the other provisions of this Agreement shall nevertheless stand and the duration and/or geographic scope set forth herein\nshall be deemed to be the longest period and/or greatest size permissible by law under the circumstances, and the parties hereto agree that such court\nshall reduce the time period and/or geographic scope to permissible duration or size.\nSection 9. Injunctive Relief.\nWithout intending to limit the remedies available to the Company, Executive acknowledges that a breach of any of the covenants\ncontained in this Agreement may result in material irreparable injury to the Company or its subsidiaries or affiliates for which there is no adequate\nremedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of such a breach or threat thereof, the\nCompany shall be entitled to obtain a temporary restraining order and/or a preliminary or permanent injunction, without the necessity of proving\nirreparable harm or injury as a result of such breach or threatened breach of this Agreement, restraining Executive from engaging in activities\nprohibited by this Agreement or such other relief as may be required specifically to enforce any of the covenants in this Agreement. Notwithstanding\nany other provision to the contrary, the Restricted Period shall be tolled during any period of violation of any of the covenants in Section 4 or Section\n5 hereof and during any other period required for litigation during which the Company seeks to enforce this covenant against Executive if it is\nultimately determined that such person was in breach of such covenants.\nSection 10. Successors and Assigns.\nThis Agreement shall inure to the benefit of and be enforceable by, and may be assigned by the Company to, any purchaser of all or\nsubstantially all of the Company’s business or assets, any successor to the Company or any assignee thereof (whether direct or indirect, by purchase,\nmerger, consolidation or otherwise).\nSection 11. Waiver and Amendments.\nAny waiver, alteration, amendment or modification of any of the terms of this Agreement shall be valid only if made in writing and\nsigned by the parties hereto; provided, however, that any such waiver, alteration, amendment or modification is consented to on the\nCompany’s behalf by the Board. No waiver by either of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with\nrespect to any subsequent occurrences or transactions hereunder unless such waiver specifically states that it is to be construed as a continuing\nwaiver.\nSection 12. Severability and Governing Law.\nIf any covenants or such other provisions of this Agreement are found to be invalid or unenforceable by a final determination of a court\nof competent jurisdiction: (a) the remaining terms and provisions hereof shall be unimpaired, and (b) the invalid or unenforceable term or provision\nhereof shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid\nor unenforceable term or provision hereof. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH\nTHE LAWS OF THE STATE OF TEXAS (WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF) APPLICABLE\nTO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.\nSection 13. Section Headings.\nThe headings of the sections and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute a\npart thereof, affect the meaning or interpretation of this Agreement or of any term or provision hereof.\nSection 14. Entire Agreement.\nThis Agreement constitutes the entire understanding and agreement of the parties hereto regarding the subject matter hereof. This\nAgreement supersedes all prior negotiations, discussions, correspondence, communications, understandings and agreements between the parties\nrelating to the subject matter of this Agreement.\nSection 15. Counterparts.\nThis Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which together\nshall constitute one and the same instrument. The execution of this Agreement may be by actual or facsimile signature.\n***\n[Signatures to appear on the following page.]\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written.\nAMERICAN CAMPUS\nCOMMUNITIES, INC.\nBy:\nTitle:\nExecutive
+c2149cc784d2d783c2de0c7b2f02a12f.pdf	effective_date jurisdiction party term	EX-99.(D)(3)(A) 14 dex99d3a.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)(A)\nCONFIDENTIALITY AGREEMENT (Mutual)\nThis Mutual Confidentiality Agreement (the “Agreement”) is entered into and is effective as of May 16, 2002 (the “Effective Date”) by and between\nInterTrust Technologies Corporation, a Delaware corporation, with places of business at 4800 Patrick Henry Drive, Santa Clara, California 95054\n(“InterTrust”) and Sony Corporation of America, a New York corporation, with a place of business at 550 Madison Avenue, New York, New York\n10022 (“Company”).\nWHEREAS, the parties may disclose to each other certain confidential information defined below and InterTrust and/or Company desires to keep\nsuch information confidential;\nWHEREAS, in consideration of the disclosure of such information to InterTrust and/or Company, InterTrust and/or Company is willing to keep such\ninformation confidential in accordance with the terms and conditions set forth in this Agreement;\nNOW, THEREFORE, InterTrust and Company hereby agree as follows:\n1. DEFINITION OF CONFIDENTIAL INFORMATION. The parties acknowledge that the terms and conditions of this Confidentiality\nAgreement, the existence of the discussions between Company and InterTrust and other information disclosed, as set forth below, will be\nconsidered confidential (“Confidential Information”); provided that information disclosed by the disclosing party (“Discloser”) will be\nconsidered Confidential Information by the receiving party (“Recipient”), only if such information is conspicuously marked as “Confidential”\nif communicated in writing, or if communicated orally, identified as “Confidential” at time of disclosure. If the Disclosure fails to mark or\nidentify disclosed Confidential Information as “Confidential”, the Recipient shall be responsible for protecting such disclosures in accordance\nwith this Agreement from the date of receipt of written notice by the Discloser identifying the disclosure as “Confidential” and requesting that\nsuch disclosure be treated as Confidential Information under this Agreement. Confidential Information shall not include information that (a) is\nat the time of disclosure, or subsequently becomes, generally available to the public through no fault or breach on the part of Recipient, as of\nthe date such information becomes generally available; (b) Recipient can demonstrate to have had rightfully in its possession prior to\ndisclosure to Recipient by Discloser; (c) is independently developed by Recipient without the use of any Confidential Information; or (d)\nRecipient rightfully obtains from a third party who has the right to transfer or disclose it. Confidential Information generally relates to each\nparty’s respective business, strategies, technologies, intellectual property, and related information.\n2. NON -DISCLOSURE AND NON-USE OF CONFIDENTIAL INFORMATION.\na) Recipient agrees to use reasonable care, but is no event less than the same degree of care that it uses to protect its own confidential and\nproprietary information of similar importance to prevent the unauthorized use, disclosure, publication or dissemination of Confidential\nInformation. Company may disclose the Confidential Information to any direct or indirect parent, majority-owned subsidiary or Affiliate, and\ntheir agents and professional advisors, provided that such parry agrees to be bound by this Agreement to the same extent as Company is bound\nand Company agrees to be responsible for any breach by these\nPage1of4\nentities, agents and advisors. Affiliate shall mean any entity with more than 50% of its equity owned or controlled directly or indirectly by\nSony Corporation. The purpose of disclosure by the Discloser to the Recipient of the Confidential Information is to allow the Recipient to\nevaluate and comment upon certain Confidential Information so as to enable the enable the Participant to evaluate a potential business\nrelationship or strategic transaction between Recipient and Discloser (the “Purpose”). Recipient agrees not to use Confidential Information\notherwise for its own or any third party’s benefit for any purpose whatsoever, other than the Purpose, without the prior written approval of an\nauthorized representative of Discloser in each instance. Recipient may disclose Confidential Information if required by any judicial or\ngovernmental request, requirement or order; provided that Recipient will take reasonable steps to notify Discloser of such request or order and\nprovides Discloser with sufficient prior notice to allow Discloser to contest such request, requirement or order.\nb) In consideration of being finished Confidential Information, each party agrees that, without the prior written consent of the other party, for a\nperiod of one (1) year from the date of this Agreement, neither party nor any of their affiliates (including any person or entity directly or\nindirectly, through one or more intermediaries, controlling a party or controlled by a party or under common control with a party) nor any\nrepresentative will (i) acquire or agree, offer, seek or propose to acquire, ownership (including, but not limited to, beneficial ownership as\ndefined in Rule 13d-3 under the Exchange Act of 1934, as amended (the “Exchange Act”) of the assets or business or more than one (1%)\npercent of the outstanding securities issued by the other party or any of its subsidiaries, or any rights or options to acquire such ownership\n(including from a third party), unless such an action is taken in response to a third party that has publicly offered (within the meaning of the\nfederal securities laws) to purchase a majority interest in the equity securities or assets of the other party and provided that such party shall in\nno way assist, advise, encourage or act in concert with such third party; (ii) make, or in any way participate in, any “solicitation” of “proxies”\n(as such terms are defined under Regulation 14A of the Exchange. Act) to vote or seek to advise or influence in any matter whatsoever any\nperson or entity with respect to the voting securities of the other party or any to its subsidiaries; (iii) form, join or in any way participate in a\n“group” (within the meaning of Section 13 (d)(3) of the Exchange Act) with respect to any voting securities of the other party or any of its\nsubsidiaries; (iv) arrange any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable\nfor any voting securities or assets of the other parry or any of its subsidiaries; or (v) otherwise act, whether alone or in concert with others, to\nseek to propose to the other party or any of its shareholders any merger, business combination, restructuring, recapitalization or similar\ntransaction to or with the other party or any of its subsidiaries (unless made in response to a third party that has publicly offered (within the\nmeaning of the federal securities laws) to purchase a majority interest in the equity securities or assets of the other party and provided that such\nparty shall in no way assist, advise, encourage or act in concert with such third party), in each case unless an until specifically invited by the\nother party or a designated representative.\nc) Recipient agrees that without the Discloser’s prior written consent, the Recipient shall not, and it shall direct its directors, officers,\nemployees and agents having access to the Confidential Information not to, disclose to any third person either that the Recipient has\nPage2of4\nreceived Confidential Information or that discussions or negotiations are taking place concerning a possible transaction between the Recipient\nand the Discloser; provided that the Recipient may make such disclosure if the Recipient has received the written opinion of its outside counsel\nthat such disclosure must be made by the Recipient in order that the Recipient not commit a violation of law or applicable stock exchange\nrules, and the recipient has informed the Discloser, prior to such disclosure, that intends to make such disclosure.\n3. OWNERSHIP OF CONFIDENTIAL INFORMATION. All Confidential Information remains the property of Discloser and no license or\nother rights to Confidential Information is granted or implied hereby.\n4. TERM. Unless earlier terminated by either party in writing, this Agreement shall expire December 31, 2002. Recipient’s duty to protect\nDiscloser’s Confidential Information shall survive expiration or termination of this Agreement and shall expire three (3) years from the date of\ndisclosure of such Confidential Information.\n5. INDEPENDENT DEVELOPMENT. Discloser understands that Recipient may currently or in the future be developing information\ninternally, or receiving information from other parties that may be similar to Discloser’s information. Accordingly, nothing in this Agreement\nwill be construed as a representation or inference that Recipient will not develop products, or have products developed for it, that, without\nviolation of this Agreement, compete with the products or systems contemplated by Discloser’s Confidential Information.\n6. NO WARRANTY. Discloses warrants that it has the right to disclose the Confidential Information to Recipient. Otherwise, all information\nis provided “AS IS” and without any warranty, express, implied or otherwise, regarding its accuracy or performance, or the fitness of the\ninformation for a particular purpose.\n7. RETURN OF TANGIBLE INFORMATION. Recipient will return any and all tangible Confidential Information provided to it by\nDiscloser, including but not limited to all computer programs, documentation, notes, plans, drawings, and copies thereof, to Discloser\nimmediately upon Discloser’s written request, provided, however, that (1) Recipient shall destroy such information if and to the extent it has\nbeen incorporated. with Confidential Information of Recipient, and (2) Recipient may retain one copy thereof in the confidential, restricted\naccess files of its Law Department for use only in the event a dispute arises between the parties and only in connection with that dispute.\n8. NO EXPORT. Recipient certifies that no Confidential Information, or any portion thereof, will be exported to any country in violation of the\nUnited States Export Administration Act and regulations thereunder.\n9. ENTIRE AGREEMENT AND GOVERNING LAW. This Agreement constitutes the entire agreement with respect to the Confidential\nInformation disclosed herein and in connection herewith and supersedes all prior or contemporaneous oral or written agreements concerning\nsuch Confidential Information. This Agreement may not be\nPage3of4\namended except by the written agreement signed by authorized representatives of both parties. This Agreement will be governed by and\nconstrued in accordance with the laws of the State of California, excluding that body of law relating to conflict of laws. The parties to this\nAgreement hereby consent to jurisdiction and venue in the Courts of the State of California and in the U.S. District Courts in the City of San\nJose, California.\nUnderstood and agreed:\nFor InterTrust Technologies Corporation\nSony Corporation of America\n/s/ MARK R. SCADINA\n5/16/02\n/s/ ELIZABETH COPPINGER\n5/16/02\nBy: (Signature)\nDate\nBy: (Signature)\nDate\nMARK R. SCADINA\nVPQ\nELIZABETH COPPINGER\nPrinted Name and Title\nGen Counsel\nPrinted Name and Title\nPage4of4	EX-99.(D)(3)(A) 14 dex99d3a.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)(A)\nCONFIDENTIALITY AGREEMENT (Mutual)\nThis Mutual Confidentiality Agreement (the “Agreement”) is entered into and is effective as of May 16, 2002 (the “Effective Date”) by and between\nInterTrust Technologies Corporation, a Delaware corporation, with places of business at 4800 Patrick Henry Drive, Santa Clara, California 95054\n(“InterTrust”) and Sony Corporation of America, a New York corporation, with a place of business at 550 Madison Avenue, New York, New York\n10022 (“Company”).\nWHEREAS, the parties may disclose to each other certain confidential information defined below and InterTrust and/or Company desires to keep\nsuch information confidential;\nWHEREAS, in consideration of the disclosure of such information to InterTrust and/or Company, InterTrust and/or Company is willing to keep such\ninformation confidential in accordance with the terms and conditions set forth in this Agreement;\nNOW, THEREFORE, InterTrust and Company hereby agree as follows:\n1. DEFINITION OF CONFIDENTIAL INFORMATION. The parties acknowledge that the terms and conditions of this Confidentiality\nAgreement, the existence of the discussions between Company and InterTrust and other information disclosed, as set forth below, will be\nconsidered confidential (“Confidential Information™); provided that information disclosed by the disclosing party (“Discloser”) will be\nconsidered Confidential Information by the receiving party (“Recipient”), only if such information is conspicuously marked as “Confidential”\nif communicated in writing, or if communicated orally, identified as “Confidential” at time of disclosure. If the Disclosure fails to mark or\nidentify disclosed Confidential Information as “Confidential”, the Recipient shall be responsible for protecting such disclosures in accordance\nwith this Agreement from the date of receipt of written notice by the Discloser identifying the disclosure as “Confidential” and requesting that\nsuch disclosure be treated as Confidential Information under this Agreement. Confidential Information shall not include information that (a) is\nat the time of disclosure, or subsequently becomes, generally available to the public through no fault or breach on the part of Recipient, as of\nthe date such information becomes generally available; (b) Recipient can demonstrate to have had rightfully in its possession prior to\ndisclosure to Recipient by Discloser; (c) is independently developed by Recipient without the use of any Confidential Information; or (d)\nRecipient rightfully obtains from a third party who has the right to transfer or disclose it. Confidential Information generally relates to each\nparty’s respective business, strategies, technologies, intellectual property, and related information.\n2.  NON-DISCLOSURE AND NON-USE OF CONFIDENTIAL INFORMATION.\na) Recipient agrees to use reasonable care, but is no event less than the same degree of care that it uses to protect its own confidential and\nproprietary information of similar importance to prevent the unauthorized use, disclosure, publication or dissemination of Confidential\nInformation. Company may disclose the Confidential Information to any direct or indirect parent, majority-owned subsidiary or Affiliate, and\ntheir agents and professional advisors, provided that such parry agrees to be bound by this Agreement to the same extent as Company is bound\nand Company agrees to be responsible for any breach by these\nPage 1 of 4\nentities, agents and advisors. Affiliate shall mean any entity with more than 50% of its equity owned or controlled directly or indirectly by\nSony Corporation. The purpose of disclosure by the Discloser to the Recipient of the Confidential Information is to allow the Recipient to\nevaluate and comment upon certain Confidential Information so as to enable the enable the Participant to evaluate a potential business\nrelationship or strategic transaction between Recipient and Discloser (the “Purpose”). Recipient agrees not to use Confidential Information\notherwise for its own or any third party’s benefit for any purpose whatsoever, other than the Purpose, without the prior written approval of an\nauthorized representative of Discloser in each instance. Recipient may disclose Confidential Information if required by any judicial or\ngovernmental request, requirement or order; provided that Recipient will take reasonable steps to notify Discloser of such request or order and\nprovides Discloser with sufficient prior notice to allow Discloser to contest such request, requirement or order.\nb) In consideration of being finished Confidential Information, each party agrees that, without the prior written consent of the other party, for a\nperiod of one (1) year from the date of this Agreement, neither party nor any of their affiliates (including any person or entity directly or\nindirectly, through one or more intermediaries, controlling a party or controlled by a party or under common control with a party) nor any\nrepresentative will (i) acquire or agree, offer, seek or propose to acquire, ownership (including, but not limited to, beneficial ownership as\ndefined in Rule 13d-3 under the Exchange Act of 1934, as amended (the “Exchange Act”) of the assets or business or more than one (1%)\npercent of the outstanding securities issued by the other party or any of its subsidiaries, or any rights or options to acquire such ownership\n(including from a third party), unless such an action is taken in response to a third party that has publicly offered (within the meaning of the\nfederal securities laws) to purchase a majority interest in the equity securities or assets of the other party and provided that such party shall in\nno way assist, advise, encourage or act in concert with such third party; (ii) make, or in any way participate in, any “solicitation” of “proxies”\n(as such terms are defined under Regulation 14A of the Exchange. Act) to vote or seek to advise or influence in any matter whatsoever any\nperson or entity with respect to the voting securities of the other party or any to its subsidiaries; (iii) form, join or in any way participate in a\n“group” (within the meaning of Section 13 (d)(3) of the Exchange Act) with respect to any voting securities of the other party or any of its\nsubsidiaries; (iv) arrange any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable\nfor any voting securities or assets of the other parry or any of its subsidiaries; or (v) otherwise act, whether alone or in concert with others, to\nseek to propose to the other party or any of its shareholders any merger, business combination, restructuring, recapitalization or similar\ntransaction to or with the other party or any of its subsidiaries (unless made in response to a third party that has publicly offered (within the\nmeaning of the federal securities laws) to purchase a majority interest in the equity securities or assets of the other party and provided that such\nparty shall in no way assist, advise, encourage or act in concert with such third party), in each case unless an until specifically invited by the\nother party or a designated representative.\n¢) Recipient agrees that without the Discloser’s prior written consent, the Recipient shall not, and it shall direct its directors, officers,\nemployees and agents having access to the Confidential Information not to, disclose to any third person either that the Recipient has\nPage 2 of 4\nreceived Confidential Information or that discussions or negotiations are taking place concerning a possible transaction between the Recipient\nand the Discloser; provided that the Recipient may make such disclosure if the Recipient has received the written opinion of its outside counsel\nthat such disclosure must be made by the Recipient in order that the Recipient not commit a violation of law or applicable stock exchange\nrules, and the recipient has informed the Discloser, prior to such disclosure, that intends to make such disclosure.\nOWNERSHIP OF CONFIDENTIAL INFORMATION. All Confidential Information remains the property of Discloser and no license or\nother rights to Confidential Information is granted or implied hereby.\nTERM. Unless earlier terminated by either party in writing, this Agreement shall expire December 31, 2002. Recipient’s duty to protect\nDiscloser’s Confidential Information shall survive expiration or termination of this Agreement and shall expire three (3) years from the date of\ndisclosure of such Confidential Information.\nINDEPENDENT DEVELOPMENT. Discloser understands that Recipient may currently or in the future be developing information\ninternally, or receiving information from other parties that may be similar to Discloser’s information. Accordingly, nothing in this Agreement\nwill be construed as a representation or inference that Recipient will not develop products, or have products developed for it, that, without\nviolation of this Agreement, compete with the products or systems contemplated by Discloser’s Confidential Information.\nNO WARRANTY. Discloses warrants that it has the right to disclose the Confidential Information to Recipient. Otherwise, all information\nis provided “AS IS” and without any warranty, express, implied or otherwise, regarding its accuracy or performance, or the fitness of the\ninformation for a particular purpose.\nRETURN OF TANGIBLE INFORMATION. Recipient will return any and all tangible Confidential Information provided to it by\nDiscloser, including but not limited to all computer programs, documentation, notes, plans, drawings, and copies thereof, to Discloser\nimmediately upon Discloser’s written request, provided, however, that (1) Recipient shall destroy such information if and to the extent it has\nbeen incorporated. with Confidential Information of Recipient, and (2) Recipient may retain one copy thereof in the confidential, restricted\naccess files of its Law Department for use only in the event a dispute arises between the parties and only in connection with that dispute.\nNO EXPORT. Recipient certifies that no Confidential Information, or any portion thereof, will be exported to any country in violation of the\nUnited States Export Administration Act and regulations thereunder.\nENTIRE AGREEMENT AND GOVERNING LAW. This Agreement constitutes the entire agreement with respect to the Confidential\nInformation disclosed herein and in connection herewith and supersedes all prior or contemporaneous oral or written agreements concerning\nsuch Confidential Information. This Agreement may not be\nPage 3 of 4\namended except by the written agreement signed by authorized representatives of both parties. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding that body of law relating to conflict of laws. The parties to this Agreement hereby consent to jurisdiction and venue in the Courts of the State of California and in the U.S. District Courts in the City of San Jose, California.\nUnderstood and agreed:\nFor InterTrust Technologies Corporation\n/s/  MARK R. SCADINA 5/16/02\nBy: (Signature) Date\nMARK R. SCADINA VPQ\nPrinted Name and Title Gen Counsel\nPage 4 of 4\nSony Corporation of America\n/s/  ELIZABETH COPPINGER 5/16/02\nBy: (Signature) Date\nELIZABETH COPPINGER\nPrinted Name and Title	EX-99.(D)(3)(A) 14 dex99d3a.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)(A)\nCONFIDENTIALITY AGREEMENT (Mutual)\nThis Mutual Confidentiality Agreement (the "Agreement") is entered into and is effective as of May. 16, 2002 (the "Effective Date") by and between\nInterTrust Technologies Corporation, a Delaware corporation, with places of business at 4800 Patrick Henry Drive, Santa Clara, California 95054\n("InterTrust") and Sony Corporation of America, a New York corporation, with a place of business at 550 Madison Avenue, New York, New York\n10022 ("Company.").\nWHEREAS, the parties may disclose to each other certain confidential information defined below and nterTrust and/or Company desires to keep\nsuch information confidential;\nWHEREAS, in consideration of the disclosure of such information to InterTrust and/or Company, InterTrust and/or Company is willing to keep such\ninformation confidential in accordance with the terms and conditions set forth in this Agreement;\nNOW, THEREFORE, InterTrust and Company hereby agree as follows:\n1.\nDEFINITION OF CONFIDENTIAL INFORMATION. The parties acknowledge that the terms and conditions of this Confidentiality\nAgreement, the existence of the discussions between Company and InterTrust and other information disclosed, as set forth below, will be\nconsidered confidential ("Confidential Information"); provided that information disclosed by the disclosing party ("Discloser") will be\nconsidered Confidential Information by the receiving party ("Recipient"), only if such information is conspicuously marked as "Confidential"\nif communicated in writing, or if communicated orally, identified as "Confidential" at time of disclosure. If the Disclosure fails to mark or\nidentify disclosed Confidential Information as "Confidential", the Recipient shall be responsible for protecting such disclosures in accordance\nwith\nthis Agreement from the date of receipt of written notice by the Discloser identifying the disclosure as "Confidential" and requesting that\nsuch disclosure be treated as Confidential Information under this Agreement. Confidential Information shall not include information that (a)\nis\nat the time of disclosure, or subsequently becomes, generally available to the public through no fault or breach on the part of Recipient, as of\nthe date such information becomes generally available; (b) Recipient can demonstrate to have had rightfully in its possession prior to\ndisclosure to Recipient by Discloser; (c) is independently developed by Recipient without the use of any Confidential Information; or (d)\nRecipient rightfully obtains from a third party who has the right to transfer or disclose it. Confidential Information generally relates to each\nparty's respective business, strategies, technologies, intellectual property, and related information.\n2.\nNON-DISCLOSURE AND NON-USE OF CONFIDENTIAL INFORMATION.\na) Recipient agrees to use reasonable care, but is no event less than the same degree of care that it uses to protect its own confidential and\nproprietary information of similar importance to prevent the unauthorized use, disclosure, publication or dissemination of Confidential\nInformation. Company may disclose the Confidential Information to any direct or indirect parent, majority-owned subsidiary or Affiliate, and\ntheir agents and professional advisors, provided that such parry agrees to be bound by this Agreement to the same extent as Company is bound\nand Company agrees to be responsible for any breach by these\nPage 1 of 4\nentities, agents and advisors. Affiliate shall mean any entity with more than 50% of its equity owned or controlled directly or indirectly by\nSony Corporation. The purpose of disclosure by the Discloser to the Recipient of the Confidential Information is to allow the Recipient to\nevaluate and comment upon certain Confidential Information so as to enable the enable the Participant to evaluate a potential business\nrelationship or strategic transaction between Recipient and Discloser (the "Purpose"). Recipient agrees not to use Confidential Information\notherwise for its own or any third party's benefit for any purpose whatsoever, other than the Purpose, without the prior written approval of an\nauthorized representative of Discloser in each instance. Recipient may disclose Confidential Information if required by any judicial or\ngovernmental request, requirement or order; provided that Recipient will take reasonable steps to notify Discloser of such request or order and\nprovides Discloser with sufficient prior notice to allow Discloser to contest such request, requirement or order.\nb) In consideration of being finished Confidential Information, each party agrees that, without the prior written consent of the other party, for a\nperiod of one (1) year from the date of this Agreement, neither party nor any of their affiliates (including any person or entity directly or\nindirectly, through one or more intermediaries, controlling a party or controlled by a party or under common control with a party) nor any\nrepresentative will (i) acquire or agree, offer, seek or propose to acquire, ownership (including, but not limited to, beneficial ownership as\ndefined in Rule 13d-3 under the Exchange Act of 1934, as amended (the "Exchange Act") of the assets or business or more than one (1%)\npercent of the outstanding securities issued by the other party or any of its subsidiaries, or any rights or options to acquire such ownership\n(including from a third party), unless such an action is taken in response to a third party that has publicly offered (within the meaning of the\nfederal securities laws) to purchase a majority interest in the equity securities or assets of the other party and provided that such party shall\nin\nno way assist, advise, encourage or act in concert with such third party; (ii) make, or in any way participate in, any "'solicitation" of "proxies"\n(as such terms are defined under Regulation 14A of the Exchange. Act) to vote or seek to advise or influence in any matter whatsoever any\nperson or entity with respect to the voting securities of the other party or any to its subsidiaries; (iii) form, join or in any way participate in a\n"group" (within the meaning of Section 13 (d)(3) of the Exchange Act) with respect to any voting securities of the other party or any of its\nsubsidiaries; (iv) arrange any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable\nfor any voting securities or assets of the other parry or any of its subsidiaries; or (v) otherwise act, whether alone or in concert with others, to\nseek to propose to the other party or any of its shareholders any merger, business combination, restructuring, recapitalization or similar\ntransaction to or with the other party or any of its subsidiaries (unless made in response to a third party that has publicly offered (within the\nmeaning of the federal securities laws) to purchase a majority interest in the equity securities or assets of the other party and provided that such\nparty shall in no way assist, advise, encourage or act in concert with such third party), in each case unless an until specifically invited by the\nother party or a designated representative.\nc) Recipient agrees that without the Discloser's prior written consent, the Recipient shall not, and it shall direct its directors, officers,\nemployees and agents having access to the Confidential Information not to, disclose to any third person either that the Recipient has\nPage 2 of 4\nreceived Confidential Information or that discussions or negotiations are taking place concerning a possible transaction between the Recipient\nand the Discloser; provided that the Recipient may make such disclosure if the Recipient has received the written opinion of its outside counsel\nthat such disclosure must be made by the Recipient in order that the Recipient not commit a violation of law or applicable stock exchange\nrules, and the recipient has informed the Discloser, prior to such disclosure, that intends to make such disclosure.\n3.\nOWNERSHIP OF CONFIDENTIAL INFORMATION. All Confidential Information remains the property of Discloser and no license or\nother rights to Confidential Information is granted or implied hereby.\n4.\nTERM. Unless earlier terminated by either party in writing, this Agreement shall expire December 31, 2002. Recipient's duty to protect\nDiscloser's Confidential Information shall survive expiration or termination of this Agreement and shall expire three (3) years from the date of\ndisclosure of such Confidential Information.\n5.\nINDEPENDENT DEVELOPMENT. Discloser understands that Recipient may currently or in the future be developing information\ninternally, or receiving information from other parties that may be similar to Discloser's information. Accordingly, nothing in this Agreement\nwill be construed as a representation or inference that Recipient will not develop products, or have products developed for it, that, without\nviolation of this Agreement, compete with the products or systems contemplated by Discloser's Confidential Information.\n6.\nNO WARRANTY. Discloses warrants that it has the right to disclose the Confidential Information to Recipient. Otherwise, all information\nis provided "AS IS" and without any warranty, express, implied or otherwise, regarding its accuracy or performance, or the fitness of the\ninformation for a particular purpose.\n7.\nRETURN OF TANGIBLE INFORMATION. Recipient will return any and all tangible Confidential Information provided to it by\nDiscloser, including but not limited to all computer programs, documentation, notes, plans, drawings, and copies thereof, to Discloser\nimmediately upon Discloser's written request, provided, however, that (1) Recipient shall destroy such information if and to the extent it has\nbeen incorporated. with Confidential Information of Recipient, and (2) Recipient may retain one copy thereof in the confidential, restricted\naccess files of its Law Department for use only in the event a dispute arises between the parties and only in connection with that dispute.\n8.\nNO EXPORT. Recipient certifies that no Confidential Information, or any portion thereof, will be exported to any country in violation of the\nUnited States Export Administration Act and regulations thereunder.\n9.\nENTIRE\nAGREEMENT AND GOVERNING LAW. This Agreement constitutes the entire agreement with respect to the Confidential\nInformation disclosed herein and in connection herewith and supersedes all prior or contemporaneous oral or written agreements concerning\nsuch Confidential Information. This Agreement may not be\nPage 3 of 4\namended except by the written agreement signed by authorized representatives of both parties. This Agreement will be governed by and\nconstrued in accordance with the laws of the State of California, excluding that body of law relating to conflict of laws. The parties to this\nAgreement hereby consent to jurisdiction and venue in the Courts of the State of California and in the U.S. District Courts in the City of San\nJose, California.\nUnderstood and agreed:\nFor InterTrust Technologies Corporation\nSony Corporation of America\n/s/ MARK R. SCADINA\n5/16/02\n/s/ ELIZABETH COPPINGER\n5/16/02\nBy:\n(Signature)\nDate\nBy: (Signature)\nDate\nMARK R. SCADINA\nVPQ\nELIZABETH COPPINGER\nPrinted Name and Title\nGen Counsel\nPrinted Name and Title\nPage 4 of 4	EX-99.(D)(3)(A) 14 dex99d3a.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)(A)\nCONFIDENTIALITY AGREEMENT (Mutual)\nThis Mutual Confidentiality Agreement (the “Agreement”) is entered into and is effective as of May 16, 2002 (the “Effective Date”) by and between\nInterTrust Technologies Corporation, a Delaware corporation, with places of business at 4800 Patrick Henry Drive, Santa Clara, California 95054\n(“InterTrust”) and Sony Corporation of America, a New York corporation, with a place of business at 550 Madison Avenue, New York, New York\n10022 (“Company”).\nWHEREAS, the parties may disclose to each other certain confidential information defined below and InterTrust and/or Company desires to keep\nsuch information confidential;\nWHEREAS, in consideration of the disclosure of such information to InterTrust and/or Company, InterTrust and/or Company is willing to keep such\ninformation confidential in accordance with the terms and conditions set forth in this Agreement;\nNOW, THEREFORE, InterTrust and Company hereby agree as follows:\n1. DEFINITION OF CONFIDENTIAL INFORMATION. The parties acknowledge that the terms and conditions of this Confidentiality\nAgreement, the existence of the discussions between Company and InterTrust and other information disclosed, as set forth below, will be\nconsidered confidential (“Confidential Information”); provided that information disclosed by the disclosing party (“Discloser”) will be\nconsidered Confidential Information by the receiving party (“Recipient”), only if such information is conspicuously marked as “Confidential”\nif communicated in writing, or if communicated orally, identified as “Confidential” at time of disclosure. If the Disclosure fails to mark or\nidentify disclosed Confidential Information as “Confidential”, the Recipient shall be responsible for protecting such disclosures in accordance\nwith this Agreement from the date of receipt of written notice by the Discloser identifying the disclosure as “Confidential” and requesting that\nsuch disclosure be treated as Confidential Information under this Agreement. Confidential Information shall not include information that (a) is\nat the time of disclosure, or subsequently becomes, generally available to the public through no fault or breach on the part of Recipient, as of\nthe date such information becomes generally available; (b) Recipient can demonstrate to have had rightfully in its possession prior to\ndisclosure to Recipient by Discloser; (c) is independently developed by Recipient without the use of any Confidential Information; or (d)\nRecipient rightfully obtains from a third party who has the right to transfer or disclose it. Confidential Information generally relates to each\nparty’s respective business, strategies, technologies, intellectual property, and related information.\n2. NON -DISCLOSURE AND NON-USE OF CONFIDENTIAL INFORMATION.\na) Recipient agrees to use reasonable care, but is no event less than the same degree of care that it uses to protect its own confidential and\nproprietary information of similar importance to prevent the unauthorized use, disclosure, publication or dissemination of Confidential\nInformation. Company may disclose the Confidential Information to any direct or indirect parent, majority-owned subsidiary or Affiliate, and\ntheir agents and professional advisors, provided that such parry agrees to be bound by this Agreement to the same extent as Company is bound\nand Company agrees to be responsible for any breach by these\nPage1of4\nentities, agents and advisors. Affiliate shall mean any entity with more than 50% of its equity owned or controlled directly or indirectly by\nSony Corporation. The purpose of disclosure by the Discloser to the Recipient of the Confidential Information is to allow the Recipient to\nevaluate and comment upon certain Confidential Information so as to enable the enable the Participant to evaluate a potential business\nrelationship or strategic transaction between Recipient and Discloser (the “Purpose”). Recipient agrees not to use Confidential Information\notherwise for its own or any third party’s benefit for any purpose whatsoever, other than the Purpose, without the prior written approval of an\nauthorized representative of Discloser in each instance. Recipient may disclose Confidential Information if required by any judicial or\ngovernmental request, requirement or order; provided that Recipient will take reasonable steps to notify Discloser of such request or order and\nprovides Discloser with sufficient prior notice to allow Discloser to contest such request, requirement or order.\nb) In consideration of being finished Confidential Information, each party agrees that, without the prior written consent of the other party, for a\nperiod of one (1) year from the date of this Agreement, neither party nor any of their affiliates (including any person or entity directly or\nindirectly, through one or more intermediaries, controlling a party or controlled by a party or under common control with a party) nor any\nrepresentative will (i) acquire or agree, offer, seek or propose to acquire, ownership (including, but not limited to, beneficial ownership as\ndefined in Rule 13d-3 under the Exchange Act of 1934, as amended (the “Exchange Act”) of the assets or business or more than one (1%)\npercent of the outstanding securities issued by the other party or any of its subsidiaries, or any rights or options to acquire such ownership\n(including from a third party), unless such an action is taken in response to a third party that has publicly offered (within the meaning of the\nfederal securities laws) to purchase a majority interest in the equity securities or assets of the other party and provided that such party shall in\nno way assist, advise, encourage or act in concert with such third party; (ii) make, or in any way participate in, any “solicitation” of “proxies”\n(as such terms are defined under Regulation 14A of the Exchange. Act) to vote or seek to advise or influence in any matter whatsoever any\nperson or entity with respect to the voting securities of the other party or any to its subsidiaries; (iii) form, join or in any way participate in a\n“group” (within the meaning of Section 13 (d)(3) of the Exchange Act) with respect to any voting securities of the other party or any of its\nsubsidiaries; (iv) arrange any financing for the purchase of any voting securities or securities convertible or exchangeable into or exercisable\nfor any voting securities or assets of the other parry or any of its subsidiaries; or (v) otherwise act, whether alone or in concert with others, to\nseek to propose to the other party or any of its shareholders any merger, business combination, restructuring, recapitalization or similar\ntransaction to or with the other party or any of its subsidiaries (unless made in response to a third party that has publicly offered (within the\nmeaning of the federal securities laws) to purchase a majority interest in the equity securities or assets of the other party and provided that such\nparty shall in no way assist, advise, encourage or act in concert with such third party), in each case unless an until specifically invited by the\nother party or a designated representative.\nc) Recipient agrees that without the Discloser’s prior written consent, the Recipient shall not, and it shall direct its directors, officers,\nemployees and agents having access to the Confidential Information not to, disclose to any third person either that the Recipient has\nPage2of4\nreceived Confidential Information or that discussions or negotiations are taking place concerning a possible transaction between the Recipient\nand the Discloser; provided that the Recipient may make such disclosure if the Recipient has received the written opinion of its outside counsel\nthat such disclosure must be made by the Recipient in order that the Recipient not commit a violation of law or applicable stock exchange\nrules, and the recipient has informed the Discloser, prior to such disclosure, that intends to make such disclosure.\n3. OWNERSHIP OF CONFIDENTIAL INFORMATION. All Confidential Information remains the property of Discloser and no license or\nother rights to Confidential Information is granted or implied hereby.\n4. TERM. Unless earlier terminated by either party in writing, this Agreement shall expire December 31, 2002. Recipient’s duty to protect\nDiscloser’s Confidential Information shall survive expiration or termination of this Agreement and shall expire three (3) years from the date of\ndisclosure of such Confidential Information.\n5. INDEPENDENT DEVELOPMENT. Discloser understands that Recipient may currently or in the future be developing information\ninternally, or receiving information from other parties that may be similar to Discloser’s information. Accordingly, nothing in this Agreement\nwill be construed as a representation or inference that Recipient will not develop products, or have products developed for it, that, without\nviolation of this Agreement, compete with the products or systems contemplated by Discloser’s Confidential Information.\n6. NO WARRANTY. Discloses warrants that it has the right to disclose the Confidential Information to Recipient. Otherwise, all information\nis provided “AS IS” and without any warranty, express, implied or otherwise, regarding its accuracy or performance, or the fitness of the\ninformation for a particular purpose.\n7. RETURN OF TANGIBLE INFORMATION. Recipient will return any and all tangible Confidential Information provided to it by\nDiscloser, including but not limited to all computer programs, documentation, notes, plans, drawings, and copies thereof, to Discloser\nimmediately upon Discloser’s written request, provided, however, that (1) Recipient shall destroy such information if and to the extent it has\nbeen incorporated. with Confidential Information of Recipient, and (2) Recipient may retain one copy thereof in the confidential, restricted\naccess files of its Law Department for use only in the event a dispute arises between the parties and only in connection with that dispute.\n8. NO EXPORT. Recipient certifies that no Confidential Information, or any portion thereof, will be exported to any country in violation of the\nUnited States Export Administration Act and regulations thereunder.\n9. ENTIRE AGREEMENT AND GOVERNING LAW. This Agreement constitutes the entire agreement with respect to the Confidential\nInformation disclosed herein and in connection herewith and supersedes all prior or contemporaneous oral or written agreements concerning\nsuch Confidential Information. This Agreement may not be\nPage3of4\namended except by the written agreement signed by authorized representatives of both parties. This Agreement will be governed by and\nconstrued in accordance with the laws of the State of California, excluding that body of law relating to conflict of laws. The parties to this\nAgreement hereby consent to jurisdiction and venue in the Courts of the State of California and in the U.S. District Courts in the City of San\nJose, California.\nUnderstood and agreed:\nFor InterTrust Technologies Corporation\nSony Corporation of America\n/s/ MARK R. SCADINA\n5/16/02\n/s/ ELIZABETH COPPINGER\n5/16/02\nBy: (Signature)\nDate\nBy: (Signature)\nDate\nMARK R. SCADINA\nVPQ\nELIZABETH COPPINGER\nPrinted Name and Title\nGen Counsel\nPrinted Name and Title\nPage4of4
+c4864a04768c67b61084ef76ef855472.pdf	effective_date jurisdiction party term	EX-99.(D)(6) 9 d290608dex99d6.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of August 11, 2011 (the “Effective Date”), between\nAMGEN INC., a Delaware corporation (together with its Affiliates (as defined in section 14), “Amgen”), and MICROMET, INC., a Delaware\ncorporation (together with its Affiliates, “Micromet”, and each of Micromet and Amgen individually or jointly referred to as “Party” and “Parties”)\nIn order to facilitate the consideration and negotiation of a possible business combination involving Amgen and Micromet (the “Potential\nTransaction”), Amgen has requested access to certain non-public information regarding Micromet. This Agreement sets forth Amgen’s obligations\nregarding the use and disclosure of such information and regarding various related matters.\nEach of the parties, intending to be legally bound, acknowledges and agrees as follows:\n1. Limitations on Use and Disclosure of Confidential Information.\n(a) Subject to section 4 below, neither Amgen nor any of Amgen’s Representatives (as defined in section 13 below) will, at any time,\ndirectly or indirectly:\n(i) make use of any Confidential Information (as defined in section 12 below), except for the specific purpose of considering,\nevaluating and negotiating a Potential Transaction; or\n(ii) disclose any Confidential Information to any other Person (as defined in section 13 below).\n(b) Without the prior written consent of Micromet, Amgen will not disclose any of the Confidential Information to any Persons who are\nthe members representing Amgen on the “Joint Project Team” as defined in and established pursuant to that certain Collaboration and License\nAgreement, dated as of July 11, 2011, by and between Micromet, Inc., Micromet AG and Amgen Inc. (the “Collaboration Agreement”) set forth on\nSchedule I hereto under the header “Excluded Project Team Members” ( the “Excluded Representatives”) and Amgen will not directly engage such\nExcluded Representatives in the process of evaluating or negotiating a Potential Transaction; provided, however, that if, after the date hereof and\nduring period of the Term that the Parties continue to be in discussions regarding a Potential Transaction, Amgen notifies Micromet in writing\npursuant to the Collaboration Agreement that it has added Persons to Joint Project Team, Schedule I will be revised to include those Persons as\nExcluded Representatives, with the restrictions applicable to Excluded Representatives effective in respect of such Person as of the date identified\nopposite such Person’s name on Schedule I (which will be the date notice of the addition of such Person to the Joint Project Team was delivered\npursuant to the Collaboration Agreement); and provided, further, that notwithstanding any other provision of this section 1(b), the Persons on\nAmgen’s project team established under the Collaboration Agreement who are listed on Schedule I under the header “Participating Project Team\nMembers” shall not be Excluded Representatives.\n(c) Amgen will be liable and responsible for any breach of this Agreement by any of its Representatives and for any actions taken by\nsuch Representatives on behalf of or for the direct benefit of Amgen that would have constituted a breach under this Agreement had such\nRepresentative been a party hereto. Amgen will (at its own expense) take all reasonable actions necessary to restrain its Representatives from making\nany unauthorized use or disclosure of any Confidential Information; provided, that in no event will Amgen be required to make any undertaking with\nrespect to its Representatives beyond that which it would undertake to protect the confidentiality of its own confidential information of a similar\nnature in the ordinary course of its business, but in no case shall Amgen use less than reasonable care in the protection of such Confidential\nInformation.\n2. Contacts between Amgen and Micromet.\n(a) During the Standstill Period, unless otherwise authorized by Micromet, Inc.’s Chief Executive Officer (the “CEO”) or the chairman\nof Micromet, Inc.’s board of directors (the “Chairman”), Amgen and any Amgen Representatives will not contact or otherwise communicate\ndirectly with any of Micromet’s officers, directors or employees on matters relating to the Potential Transaction except (i) through the CEO or the\nChairman, or (ii) at meetings and telephone calls attended by the CEO or the Chairman.\n(b) Any request by Amgen or any of its Representatives to review Confidential Information must be directed to the CEO, or such other\nPerson as the CEO may designate from time to time.\n3. No Representations by Micromet. Neither Micromet nor any of Micromet’s Representatives will be under any obligation to make any\nConfidential Information available to Amgen or any of Amgen’s Representatives or to supplement or update any Confidential Information\npreviously furnished. Neither Micromet nor any of its Representatives has made or is making any representation or warranty, express or implied, as\nto the accuracy or completeness of any Confidential Information, and neither Micromet nor any of its Representatives will have any liability to\nAmgen or to any of Amgen’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors\ntherein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that\nprovides for the consummation of a Potential Transaction between Amgen and Micromet and is validly executed on behalf of Amgen and Micromet\n(a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 1 above:\n(i) Amgen or its Representatives may disclose Confidential Information if and to the extent that Micromet consents in writing to\nAmgen’s or its Representative’s disclosure thereof;\n(ii) Subject to section 1(b) of this Agreement, Amgen may disclose Confidential Information to any Representative of Amgen,\nbut only to the extent such\n2\nRepresentative (A) needs to know such Confidential Information for the purpose of helping Amgen evaluate or negotiate a Potential Transaction, and\n(B) is bound by obligations of confidentiality at least as restrictive as the provisions hereof; and\n(iii) subject to section 4(b) below, Amgen may disclose Confidential Information (1) to the extent required by applicable law or\ngovernmental regulation (including without limitation any rule, regulation or policy statement of any national securities exchange, market or\nautomated quotation system on which any of Amgen’s securities are listed or quoted), by valid legal process or in response to a demand by a\nregulatory agency, or (2) to establish Amgen’s compliance with the terms and conditions hereof or its ongoing rights and responsibilities hereunder\nin the defense of a claim by Micromet that Amgen has breached this Agreement (including through its Representatives).\n(b) If Micromet delivers to Amgen a written notice stating that specifically identified documents or materials that are Confidential\nInformation may be disclosed only to specified Representatives of Amgen prior to the delivery of such to Amgen or its Representatives, then,\nnotwithstanding anything to the contrary contained in Section 4(a)(ii) above, Amgen will not thereafter disclose or permit the disclosure of any such\nConfidential Information to any other Representative of Amgen unless otherwise authorized by Micromet.\n(c) If Amgen or any of Amgen’s Representatives is required by law or governmental regulation (including without limitation any rule,\nregulation or policy statement of any national securities exchange, market or automated quotation system on which any of Amgen’s securities are\nlisted or quoted) or by subpoena or other valid legal process or in response to a demand by a regulatory agency to disclose any Confidential\nInformation to any Person, then Amgen will promptly provide Micromet with written notice of the requirement so that Micromet may seek a\nprotective order or other appropriate remedy. Amgen will use commercially reasonable efforts (i) to cooperate fully with Micromet and Micromet’s\nRepresentatives in any attempt by Micromet to obtain any such protective order or other remedy and (ii) cause its Representatives to do the same. If\nMicromet elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that\nAmgen disclose Confidential Information, and if Amgen furnishes Micromet with a written opinion of reputable legal counsel confirming that the\ndisclosure of such Confidential Information is legally required, then Amgen may disclose such Confidential Information to the extent legally\nrequired; provided, however, that Amgen will use its commercially reasonable efforts to ensure that such Confidential Information is treated\nconfidentially by each Person to whom it is disclosed and will use its commercially reasonable efforts to cause its Representatives to do the same;\nprovided, that in no event will Amgen or its Representatives be required to make any undertaking beyond that which it would undertake to protect\nthe confidentiality of its own confidential information of a similar nature in the ordinary course of its business, but in no case shall Amgen use less\nthan reasonable care in the protection of such Confidential Information.\n5. Return of Confidential Information. If Amgen determines that it does not wish to proceed with the possible negotiated transaction with\nMicromet, Amgen will promptly advise Micromet in writing of that decision. Upon Micromet’s written request, Amgen and Amgen’s\nRepresentatives will, promptly deliver to Micromet any Confidential Information (and all copies\n3\nthereof) obtained or possessed by Amgen or any of Amgen’s Representatives; provided, however, that, in lieu of delivering to Micromet any written\nmaterials Amgen and its Representatives may destroy such written materials and deliver to Micromet a certificate confirming their destruction.\nNotwithstanding the foregoing, Amgen’s Representatives that are law firms may retain copies of the Confidential Information solely for archival\npurposes and to establish Amgen’s compliance with the terms and conditions hereof or its ongoing rights and responsibilities hereunder and Amgen’s\nRepresentatives that are lenders, financial advisors and/or accounting firms may retain, solely for compliance purposes, copies of the Confidential\nInformation in accordance with policies and procedures implemented by such persons in order to comply with law, regulation or professional\nstandards. Notwithstanding any other provision of this Agreement to the contrary, neither Amgen nor its Representatives will be required to destroy\nany electronic files created during any automatic backup that are subsequently stored securely by Amgen and/or its Representatives, provided that\nAmgen and its Representatives will not access with the intent to use any such electronic files following the date such electronic files would\notherwise be required to be redelivered or destroyed. Notwithstanding the delivery to Micromet (or the destruction by Amgen) of Confidential\nInformation pursuant to this section 5, Amgen and its Representatives will continue to be bound by their confidentiality obligations and other\nobligations under this Agreement.\n6. Limitation on Hiring and Soliciting Employees. During the twelve month period commencing on the Effective Date, none of Amgen’s\nRepresentatives who have received Confidential Information under this Agreement will solicit or cause to be solicited any Covered Person (as\ndefined in this section 6 below) to terminate such Covered Person’s employment relationship with Micromet in order to become an employee,\nconsultant, or independent contractor, to or for Amgen. This section 6 will not prevent Amgen from placing causing to be placed any general\nadvertisement or similar notice of open positions in the ordinary course of business that is not targeted specifically at employees of Micromet or\nengaging employee search firms that are not specifically instructed by Amgen to target Covered Persons. For purposes of this Agreement, “Covered\nPerson” will mean any Person who is an officer or employee of Micromet with a title of Director or higher as of the date of this Agreement or who\nbecomes an officer or employee with a title of Director or higher during the Term and before the termination of discussions regarding a Potential\nTransaction.\n7. Standstill Provisions.\n(a) Subject to section 7(c), , without the prior written request or consent of Micromet, during the period commencing on the Effective\nDate and terminating on the earlier to occur of (i) eighteen months from that date or (ii) the date of any Terminating Event (defined below) (such\nperiod, the “Standstill Period”), Amgen will not directly or indirectly:\n(i) make, effect, initiate, cause or participate in (1) any acquisition of beneficial ownership of any securities of Micromet or any\nsecurities of any subsidiary of Micromet, (2) any acquisition of any material assets of Micromet (other than in connection with the Collaboration\nAgreement), (3) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or\nextraordinary transaction involving Micromet or any subsidiary of Micromet, or involving any securities or assets of Micromet or any securities or\nassets of any subsidiary of Micromet, or (4) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange\nCommission) or consents with respect to any securities of Micromet;\n4\n(ii) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated\nthereunder) with respect to the beneficial ownership of any securities of Micromet;\n(iii) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of\nMicromet;\n(iv) take any action that requires Micromet to make a public announcement regarding any of the types of matters set forth in\nclause “(i)” of this sentence;\n(v) enter into any discussions, negotiations, arrangement or agreement with any other Person (other than its Affiliates or\nMicromet) relating to any of the foregoing;\n(vi) publicly request or publicly propose that Micromet or any of Micromet’s Representatives amend, waive or consider the\namendment or waiver of any provision set forth in this section 7(a); or\n(vii) agree to take, or encourage or propose the taking of, any action referred to in this section 7(a);\n(b) Notwithstanding any other provision of this Agreement:\n(i) nothing in this Agreement will prevent Amgen or its Representatives from communicating with the CEO or the Chairman to\nmake a proposal for or to negotiate with Micromet in respect of a tender or exchange offer, merger or other business combination, or any other of the\ntransactions described in section 7(a)(i) involving Micromet and Amgen so long as such communication is made confidentially;\n(ii) nothing in this Agreement will prohibit Amgen from acquiring any class of securities of Micromet (including the voting\nrights thereof) by or through (1) a diversified mutual or pension fund managed by an independent investment adviser or pension plan established for\nthe benefit of any of Amgen’s employees or (2) any bona fide benefit plan maintained for the benefit of employees of Amgen (and, in the case of\nclauses (1) and (2) of this sentence, any such securities will not be considered beneficially owned by Amgen for purposes of section 7(a) above);\nprovided that, in the case of clauses (1) and (2), (A) such acquisitions are ordinary course trading activities in compliance with applicable securities\nlaws and Amgen will not in any way request or direct that the trustee or other administrator of such fund or plan purchase or acquire any equity\nsecurities, (B) such acquisitions are for passive investment not made with the purpose, or the effect, of either influencing the control of Micromet or\neffecting or preventing any control transaction involving Micromet and (C) such acquisitions, when combined with all other securities of the\nMicromet owned by Amgen, its affiliates and such funds and plans, will not represent 5% or more of the securities of Micromet; provided, further,\nthat, any acquisition and/or ownership of any class of securities of Micromet that results from actions by persons other than Amgen and its affiliates\n(including reverse stock splits, Micromet stock repurchases, etc.) will not be a violation of this paragraph;\n5\n(iii) nothing in this Agreement will prohibit Amgen from acquiring another biotechnology or pharmaceutical company that\nbeneficially owns any securities of Micromet, provided that such biotechnology or pharmaceutical company will have acquired securities of\nMicromet other than in contemplation of Amgen acquiring such biotechnology or pharmaceutical company; and\n(iv) nothing in this Agreement will prohibit Amgen and its Representatives from initiating confidential discussions with, or\nsubmitting confidential proposals to, Micromet related to any commercial transaction between the Company and Micromet in the ordinary course\nbusiness (such as licensing, collaboration, research, development, marketing or comparable transactions).\n(c) For purposes of this Agreement, a “Terminating Event” will mean the occurrence of any of the following: (i) any Person\ncommences a tender or exchange offer for the majority of the voting power of Micromet; (ii) any Person or group that is or includes a company that\nis in the business of developing, marketing, selling or manufacturing human therapeutics acquires or proposes to acquire (and such proposal becomes\npublic) more than fifteen percent (15%) of Micromet’s capital stock, as long as Amgen is not and does not become a member of such group; or\n(iii) Micromet or a third Person publicly announces that Micromet has entered into, or Micromet publicly proposes to enter into, a definitive\nagreement with one or more unaffiliated third Persons providing for the acquisition by such Person or group of more than 25% of the voting\nsecurities of Micromet or all or substantially all the assets of Micromet (other than in connection with an internal restructuring transaction involving\nonly Micromet, one or more of its subsidiaries and/or any holding company formed for the purpose of such transaction wholly owned by persons\nwho were stockholders of Micromet immediately prior to such transaction). The expiration of the Standstill Period will not terminate or otherwise\naffect any of the other provisions of this Agreement.\n8. No Obligation to Pursue Transaction. Unless Amgen and Micromet enter into a Definitive Agreement, no agreement providing for a\ntransaction involving Micromet will be deemed to exist between Amgen and Micromet, and neither Party will be under any obligation to negotiate or\nenter into any such agreement or transaction with Amgen. Micromet reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving Micromet, and to modify any procedures relating to any such process\nwithout giving notice to Amgen or any other Person; (b) to reject any proposal made by Amgen or any of Amgen’s Representatives with respect to a\ntransaction involving Micromet; and (c) to terminate discussions and negotiations with Amgen at any time. Amgen recognizes that, except as\nexpressly provided in any Definitive Agreement between Amgen and Micromet: Micromet and its Representatives will be free to negotiate with, and\nto enter into any agreement or transaction with, any other interested party.\n9. No Waiver. No failure or delay by any Party in exercising any right, power or privilege under this Agreement will operate as a waiver\nthereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the\n6\nexercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of\na written instrument that is validly executed on behalf of each Party and that refers specifically to the particular provision or provisions being waived\nor amended.\n10. Remedies. Amgen acknowledges that money damages may not be a sufficient remedy for any breach of this Agreement by Amgen or any\nof Amgen’s Representatives and that Micromet may suffer irreparable harm as a result of any such breach. Accordingly, Micromet will also be\nentitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement.\nThe equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in\naddition to all other remedies available at law or in equity to Micromet.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon each Party and its assigns.\nThis Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of\nconflicts of laws). Each Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and\nfederal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agree\nthat service of any process, summons, notice or document by U.S . registered mail to the address set forth at the end of this Agreement will be\neffective service of process for any action, suit or proceeding brought against such Party or any of such Party’s Representatives; (c) irrevocably and\nunconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state\nor federal court located in the State of Delaware; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and\nunconditionally agree not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state\nor federal court located in the State of Delaware has been brought in an inconvenient forum.\n12. Confidential Information.\n(a) For purposes of this Agreement, “Confidential Information” will be deemed to include:\n(i) any information (including any technology, know-how, patent application, test result, research study, business plan, budget,\nforecast or projection) relating directly or indirectly to the business of Micromet or any predecessor entity (whether prepared by Micromet or by any\nother Person and whether or not in written form) that is or has been made available to Amgen or any Representative of Amgen by or on behalf of\nMicromet or any Representative of Micromet on or after the date hereof; and\n(ii) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is\nor has been prepared by or for Amgen or any Representative of Amgen and that contains any information of the type referred to in section 11(a)(i)\n(or is based on, reflects or interprets such information in a manner in which such information can be reasonably and specifically derived).\n7\n(b) Notwithstanding the foregoing, for the purposes of this Agreement “Confidential Information” will not include:\n(i) any information disclosed by or behalf of Micromet in connection with the Collaboration Agreement, which information\nremains subject to the confidentiality obligations set forth in the Collaboration Agreement;\n(ii) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by Amgen or by any of Amgen’s Representatives;\n(iii) any information that was in Amgen’s or its Representatives’ possession prior to the time it was first made available to\nAmgen or any of Amgen’s Representatives by or on behalf of Micromet or any of Micromet’s Representatives, provided that the source of such\ninformation was not known by Amgen to be bound by any contractual or other obligation of confidentiality to Micromet or any other Person with\nrespect to any of such information;\n(iv) any information that is independently discovered or developed by Amgen or its Representatives without reference to or the\nuse of Confidential Information; or\n(v) any information that becomes available to Amgen on a non-confidential basis from a source other than Micromet or any of\nMicromet’s Representatives, provided that such source is not known by Amgen bound by any contractual or other obligation of confidentiality to\nMicromet with respect to any of such information.\n13. Confidentiality of Discussions.\nDuring the Standstill Period only, each Party agrees that it shall not disclose the following to any Person other than its Representatives who\n(a) need to know such Confidential Information for the purpose of helping it evaluate or negotiate a Potential Transaction and (b) are bound by\nobligations of confidentiality at least as restrictive as the provisions hereof: (i) the existence and terms of this Agreement, and the fact that\nConfidential Information has been made available to Amgen or any of its Representatives and (ii) the fact that discussions or negotiations are or may\nbe taking place between the Parties with respect to a Potential Transaction, and the proposed terms of any such transaction.\n14. Term.\nThis Agreement will become effective on the date of this Agreement and terminate on the date that is eighteen months from the Effective Date\n(the “Term”); provided, however, that (a) the obligations contained in this Agreement with respect to Confidential Information other than IP\nInformation and Collaboration Information (each as defined below) disclosed during the Term will survive any expiration or termination of this\nAgreement until the sixth anniversary of the termination date, at which time they shall terminate and (b) the obligations contained in this Agreement\nwith respect to IP Information (as defined below) disclosed during the Term shall survive any expiration or termination of this Agreement until the\ntenth anniversary of the\n8\ntermination date, at which time they shall terminate, and (c) the obligations contained in this Agreement with respect to Collaboration Information\n(as defined below) disclosed during the Term will survive any expiration or termination of the Agreement until the later to occur of (i) the date that is\nthe sixth anniversary of the Effective Date and (ii) the date that Micromet is no longer subject to any obligation of confidentiality existing as of the\nEffective Date in respect of such information under a Third Party Collaboration Agreement (as defined below), provided that Micromet has disclosed\nto Amgen all applicable provisions under any partnering or collaboration agreement with any third Person covering the Collaboration Information, at\nwhich time all obligations in respect of Collaboration Information shall terminate. “IP Information” shall mean shall mean any Confidential\nInformation that includes know how, trade secrets, unpublished patent applications, invention disclosures and prosecution histories, and technical\ndata. “Collaboration Information” shall mean any Confidential Information in respect of which Micromet has an obligation of confidentiality to a\nthird Person under any partnering or collaboration agreement between Micromet and such third Person as of the date hereof (each a “Third Party\nCollaboration Agreement”).\n15. Miscellaneous.\n(a) “Affiliate” means an entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under\ncommon control with a Party. For purposes of this definition only, “control” and, with correlative meanings, the terms “controlled by” and “under\ncommon control with” means (a) the possession, directly or indirectly, of the power to direct the management or policies of an entity, whether\nthrough the ownership of voting securities, contract rights, voting rights, corporate governance or otherwise, or (b) the ownership, directly or\nindirectly, of more than 50% of the voting securities or other ownership interest of an entity entitled to vote in the election of directors or similar\ngoverning body.\n(b) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) an\nAffiliate of such Party, or (ii) an officer, director, employee, partner, attorney, accountant, consultant, advisor, agent or representative of such Party or\nof any of such Party’s Affiliates; provided that Representatives shall not include Excluded Representatives.\n(c) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(d) The bold-faced captions appearing in this Agreement have been included only for convenience and will not affect or be taken into\naccount in the interpretation of this Agreement.\n(e) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction will not affect the validity\nor enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other\nsituation or in any other jurisdiction.\n9\n(f) By making Confidential Information or other information available to Amgen or Amgen’s Representatives, Micromet is not, and will\nnot be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright,\ntrademark or other proprietary or intellectual property right.\n(g) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit,\nproceeding, investigation, arbitration or dispute, it is acknowledged and agreed that Amgen and Micromet have a commonality of interest with\nrespect to such action, suit, proceeding, investigation, arbitration or dispute and that it is their mutual desire, intention and understanding that the\nsharing of such materials and other information is not intended to, and will not, affect the confidentiality of any of such materials or other\ninformation or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work\nproduct doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine will remain entitled to protection thereunder and will be entitled to\nprotection under the joint defense doctrine, and Amgen agrees to take all commercially reasonable measures necessary to preserve, to the fullest\nextent possible, the applicability of all such privileges or doctrines.\n(h) This Agreement constitutes the entire agreement between Amgen and Micromet regarding the subject matter hereof and supersedes\nany prior agreement between Amgen and Micromet regarding the subject matter hereof.\n[SIGNATURES ON NEXT PAGE]\n10\nThe Parties have caused this Agreement to be executed as of the Effective Date.\nAMGEN INC.\nMICROMET, INC.\nBy: /s/ David Piacquad\nBy: /s/ Jens Hennecke\nName: David Piacquad\nName: Jens Hennecke, Ph.D.\nTitle: Vice President, Strategy and\nTitle: Senior Vice President,\nCorporate Development\nBusiness Development\n11	EX-99.(D)(6) 9 d290608dex99d6.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of August 11, 2011 (the “Effective Date”), between\nAMGEN INC., a Delaware corporation (together with its Affiliates (as defined in section 14), “Amgen”), and MICROMET, INC., a Delaware\ncorporation (together with its Affiliates, “Micromet”, and each of Micromet and Amgen individually or jointly referred to as “Party” and “Parties”)\nIn order to facilitate the consideration and negotiation of a possible business combination involving Amgen and Micromet (the “Potential\nTransaction”), Amgen has requested access to certain non-public information regarding Micromet. This Agreement sets forth Amgen’s obligations\nregarding the use and disclosure of such information and regarding various related matters.\nEach of the parties, intending to be legally bound, acknowledges and agrees as follows:\n1. Limitations on Use and Disclosure of Confidential Information.\n(a) Subject to section 4 below, neither Amgen nor any of Amgen’s Representatives (as defined in section 13 below) will, at any time,\ndirectly or indirectly:\n(i) make use of any Confidential Information (as defined in section 12 below), except for the specific purpose of considering,\nevaluating and negotiating a Potential Transaction; or\n(ii) disclose any Confidential Information to any other Person (as defined in section 13 below).\n(b) Without the prior written consent of Micromet, Amgen will not disclose any of the Confidential Information to any Persons who are\nthe members representing Amgen on the “Joint Project Team” as defined in and established pursuant to that certain Collaboration and License\nAgreement, dated as of July 11, 2011, by and between Micromet, Inc., Micromet AG and Amgen Inc. (the “Collaboration Agreement”) set forth on\nSchedule I hereto under the header “Excluded Project Team Members” ( the “Excluded Representatives”) and Amgen will not directly engage such\nExcluded Representatives in the process of evaluating or negotiating a Potential Transaction; provided, however, that if, after the date hereof and\nduring period of the Term that the Parties continue to be in discussions regarding a Potential Transaction, Amgen notifies Micromet in writing\npursuant to the Collaboration Agreement that it has added Persons to Joint Project Team, Schedule I will be revised to include those Persons as\nExcluded Representatives, with the restrictions applicable to Excluded Representatives effective in respect of such Person as of the date identified\nopposite such Person’s name on Schedule I (which will be the date notice of the addition of such Person to the Joint Project Team was delivered\npursuant to the Collaboration Agreement); and provided, further, that notwithstanding any other provision of this section 1(b), the Persons on\nAmgen’s project team established under the Collaboration Agreement who are listed on Schedule I under the header “Participating Project Team\nMembers” shall not be Excluded Representatives.\n(c) Amgen will be liable and responsible for any breach of this Agreement by any of its Representatives and for any actions taken by\nsuch Representatives on behalf of or for the direct benefit of Amgen that would have constituted a breach under this Agreement had such\nRepresentative been a party hereto. Amgen will (at its own expense) take all reasonable actions necessary to restrain its Representatives from making\nany unauthorized use or disclosure of any Confidential Information; provided, that in no event will Amgen be required to make any undertaking with\nrespect to its Representatives beyond that which it would undertake to protect the confidentiality of its own confidential information of a similar\nnature in the ordinary course of its business, but in no case shall Amgen use less than reasonable care in the protection of such Confidential\nInformation.\n2. Contacts between Amgen and Micromet.\n(@) During the Standstill Period, unless otherwise authorized by Micromet, Inc.’s Chief Executive Officer (the “CEO”) or the chairman\nof Micromet, Inc.’s board of directors (the “Chairman”), Amgen and any Amgen Representatives will not contact or otherwise communicate\ndirectly with any of Micromet’s officers, directors or employees on matters relating to the Potential Transaction except (i) through the CEO or the\nChairman, or (ii) at meetings and telephone calls attended by the CEO or the Chairman.\n(b) Any request by Amgen or any of its Representatives to review Confidential Information must be directed to the CEO, or such other\nPerson as the CEO may designate from time to time.\n3. No Representations by Micromet. Neither Micromet nor any of Micromet’s Representatives will be under any obligation to make any\nConfidential Information available to Amgen or any of Amgen’s Representatives or to supplement or update any Confidential Information\npreviously furnished. Neither Micromet nor any of its Representatives has made or is making any representation or warranty, express or implied, as\nto the accuracy or completeness of any Confidential Information, and neither Micromet nor any of its Representatives will have any liability to\nAmgen or to any of Amgen’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors\ntherein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that\nprovides for the consummation of a Potential Transaction between Amgen and Micromet and is validly executed on behalf of Amgen and Micromet\n(a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 1 above:\n(i) Amgen or its Representatives may disclose Confidential Information if and to the extent that Micromet consents in writing to\nAmgen’s or its Representative’s disclosure thereof;\n(ii) Subject to section 1(b) of this Agreement, Amgen may disclose Confidential Information to any Representative of Amgen,\nbut only to the extent such\nRepresentative (A) needs to know such Confidential Information for the purpose of helping Amgen evaluate or negotiate a Potential Transaction, and\n(B) is bound by obligations of confidentiality at least as restrictive as the provisions hereof; and\n(iii) subject to section 4(b) below, Amgen may disclose Confidential Information (1) to the extent required by applicable law or\ngovernmental regulation (including without limitation any rule, regulation or policy statement of any national securities exchange, market or\nautomated quotation system on which any of Amgen’s securities are listed or quoted), by valid legal process or in response to a demand by a\nregulatory agency, or (2) to establish Amgen’s compliance with the terms and conditions hereof or its ongoing rights and responsibilities hereunder\nin the defense of a claim by Micromet that Amgen has breached this Agreement (including through its Representatives).\n(b) If Micromet delivers to Amgen a written notice stating that specifically identified documents or materials that are Confidential\nInformation may be disclosed only to specified Representatives of Amgen prior to the delivery of such to Amgen or its Representatives, then,\nnotwithstanding anything to the contrary contained in Section 4(a)(ii) above, Amgen will not thereafter disclose or permit the disclosure of any such\nConfidential Information to any other Representative of Amgen unless otherwise authorized by Micromet.\n(c) If Amgen or any of Amgen’s Representatives is required by law or governmental regulation (including without limitation any rule,\nregulation or policy statement of any national securities exchange, market or automated quotation system on which any of Amgen’s securities are\nlisted or quoted) or by subpoena or other valid legal process or in response to a demand by a regulatory agency to disclose any Confidential\nInformation to any Person, then Amgen will promptly provide Micromet with written notice of the requirement so that Micromet may seek a\nprotective order or other appropriate remedy. Amgen will use commercially reasonable efforts (i) to cooperate fully with Micromet and Micromet’s\nRepresentatives in any attempt by Micromet to obtain any such protective order or other remedy and (ii) cause its Representatives to do the same. If\nMicromet elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that\nAmgen disclose Confidential Information, and if Amgen furnishes Micromet with a written opinion of reputable legal counsel confirming that the\ndisclosure of such Confidential Information is legally required, then Amgen may disclose such Confidential Information to the extent legally\nrequired; provided, however, that Amgen will use its commercially reasonable efforts to ensure that such Confidential Information is treated\nconfidentially by each Person to whom it is disclosed and will use its commercially reasonable efforts to cause its Representatives to do the same;\nprovided, that in no event will Amgen or its Representatives be required to make any undertaking beyond that which it would undertake to protect\nthe confidentiality of its own confidential information of a similar nature in the ordinary course of its business, but in no case shall Amgen use less\nthan reasonable care in the protection of such Confidential Information.\n5. Return of Confidential Information. If Amgen determines that it does not wish to proceed with the possible negotiated transaction with\nMicromet, Amgen will promptly advise Micromet in writing of that decision. Upon Micromet’s written request, Amgen and Amgen’s\nRepresentatives will, promptly deliver to Micromet any Confidential Information (and all copies\n3\nthereof) obtained or possessed by Amgen or any of Amgen’s Representatives; provided, however, that, in lieu of delivering to Micromet any written\nmaterials Amgen and its Representatives may destroy such written materials and deliver to Micromet a certificate confirming their destruction.\nNotwithstanding the foregoing, Amgen’s Representatives that are law firms may retain copies of the Confidential Information solely for archival\npurposes and to establish Amgen’s compliance with the terms and conditions hereof or its ongoing rights and responsibilities hereunder and Amgen’s\nRepresentatives that are lenders, financial advisors and/or accounting firms may retain, solely for compliance purposes, copies of the Confidential\nInformation in accordance with policies and procedures implemented by such persons in order to comply with law, regulation or professional\nstandards. Notwithstanding any other provision of this Agreement to the contrary, neither Amgen nor its Representatives will be required to destroy\nany electronic files created during any automatic backup that are subsequently stored securely by Amgen and/or its Representatives, provided that\nAmgen and its Representatives will not access with the intent to use any such electronic files following the date such electronic files would\notherwise be required to be redelivered or destroyed. Notwithstanding the delivery to Micromet (or the destruction by Amgen) of Confidential\nInformation pursuant to this section 5, Amgen and its Representatives will continue to be bound by their confidentiality obligations and other\nobligations under this Agreement.\n6. Limitation on Hiring and Soliciting Employees. During the twelve month period commencing on the Effective Date, none of Amgen’s\nRepresentatives who have received Confidential Information under this Agreement will solicit or cause to be solicited any Covered Person (as\ndefined in this section 6 below) to terminate such Covered Person’s employment relationship with Micromet in order to become an employee,\nconsultant, or independent contractor, to or for Amgen. This section 6 will not prevent Amgen from placing causing to be placed any general\nadvertisement or similar notice of open positions in the ordinary course of business that is not targeted specifically at employees of Micromet or\nengaging employee search firms that are not specifically instructed by Amgen to target Covered Persons. For purposes of this Agreement, “Covered\nPerson” will mean any Person who is an officer or employee of Micromet with a title of Director or higher as of the date of this Agreement or who\nbecomes an officer or employee with a title of Director or higher during the Term and before the termination of discussions regarding a Potential\nTransaction.\n7. Standstill Provisions.\n(a) Subject to section 7(c), , without the prior written request or consent of Micromet, during the period commencing on the Effective\nDate and terminating on the earlier to occur of (i) eighteen months from that date or (ii) the date of any Terminating Event (defined below) (such\nperiod, the “Standstill Period”), Amgen will not directly or indirectly:\n(i) make, effect, initiate, cause or participate in (1) any acquisition of beneficial ownership of any securities of Micromet or any\nsecurities of any subsidiary of Micromet, (2) any acquisition of any material assets of Micromet (other than in connection with the Collaboration\nAgreement), (3) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or\nextraordinary transaction involving Micromet or any subsidiary of Micromet, or involving any securities or assets of Micromet or any securities or\nassets of any subsidiary of Micromet, or (4) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange\nCommission) or consents with respect to any securities of Micromet;\n(ii) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated\nthereunder) with respect to the beneficial ownership of any securities of Micromet;\n(iii) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of\nMicromet;\n(iv) take any action that requires Micromet to make a public announcement regarding any of the types of matters set forth in\nclause “(i)” of this sentence;\n(v) enter into any discussions, negotiations, arrangement or agreement with any other Person (other than its Affiliates or\nMicromet) relating to any of the foregoing;\n(vi) publicly request or publicly propose that Micromet or any of Micromet’s Representatives amend, waive or consider the\namendment or waiver of any provision set forth in this section 7(a); or\n(vii) agree to take, or encourage or propose the taking of, any action referred to in this section 7(a);\n(b) Notwithstanding any other provision of this Agreement:\n(i) nothing in this Agreement will prevent Amgen or its Representatives from communicating with the CEO or the Chairman to\nmake a proposal for or to negotiate with Micromet in respect of a tender or exchange offer, merger or other business combination, or any other of the\ntransactions described in section 7(a)(i) involving Micromet and Amgen so long as such communication is made confidentially;\n(ii) nothing in this Agreement will prohibit Amgen from acquiring any class of securities of Micromet (including the voting\nrights thereof) by or through (1) a diversified mutual or pension fund managed by an independent investment adviser or pension plan established for\nthe benefit of any of Amgen’s employees or (2) any bona fide benefit plan maintained for the benefit of employees of Amgen (and, in the case of\nclauses (1) and (2) of this sentence, any such securities will not be considered beneficially owned by Amgen for purposes of section 7(a) above);\nprovided that, in the case of clauses (1) and (2), (A) such acquisitions are ordinary course trading activities in compliance with applicable securities\nlaws and Amgen will not in any way request or direct that the trustee or other administrator of such fund or plan purchase or acquire any equity\nsecurities, (B) such acquisitions are for passive investment not made with the purpose, or the effect, of either influencing the control of Micromet or\neffecting or preventing any control transaction involving Micromet and (C) such acquisitions, when combined with all other securities of the\nMicromet owned by Amgen, its affiliates and such funds and plans, will not represent 5% or more of the securities of Micromet; provided, further,\nthat, any acquisition and/or ownership of any class of securities of Micromet that results from actions by persons other than Amgen and its affiliates\n(including reverse stock splits, Micromet stock repurchases, etc.) will not be a violation of this paragraph;\n5\n(iii) nothing in this Agreement will prohibit Amgen from acquiring another biotechnology or pharmaceutical company that\nbeneficially owns any securities of Micromet, provided that such biotechnology or pharmaceutical company will have acquired securities of\nMicromet other than in contemplation of Amgen acquiring such biotechnology or pharmaceutical company; and\n(iv) nothing in this Agreement will prohibit Amgen and its Representatives from initiating confidential discussions with, or\nsubmitting confidential proposals to, Micromet related to any commercial transaction between the Company and Micromet in the ordinary course\nbusiness (such as licensing, collaboration, research, development, marketing or comparable transactions).\n(c) For purposes of this Agreement, a “Terminating Event” will mean the occurrence of any of the following: (i) any Person\ncommences a tender or exchange offer for the majority of the voting power of Micromet; (ii) any Person or group that is or includes a company that\nis in the business of developing, marketing, selling or manufacturing human therapeutics acquires or proposes to acquire (and such proposal becomes\npublic) more than fifteen percent (15%) of Micromet’s capital stock, as long as Amgen is not and does not become a member of such group; or\n(iii) Micromet or a third Person publicly announces that Micromet has entered into, or Micromet publicly proposes to enter into, a definitive\nagreement with one or more unaffiliated third Persons providing for the acquisition by such Person or group of more than 25% of the voting\nsecurities of Micromet or all or substantially all the assets of Micromet (other than in connection with an internal restructuring transaction involving\nonly Micromet, one or more of its subsidiaries and/or any holding company formed for the purpose of such transaction wholly owned by persons\nwho were stockholders of Micromet immediately prior to such transaction). The expiration of the Standstill Period will not terminate or otherwise\naffect any of the other provisions of this Agreement.\n8. No Obligation to Pursue Transaction. Unless Amgen and Micromet enter into a Definitive Agreement, no agreement providing for a\ntransaction involving Micromet will be deemed to exist between Amgen and Micromet, and neither Party will be under any obligation to negotiate or\nenter into any such agreement or transaction with Amgen. Micromet reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving Micromet, and to modify any procedures relating to any such process\nwithout giving notice to Amgen or any other Person; (b) to reject any proposal made by Amgen or any of Amgen’s Representatives with respect to a\ntransaction involving Micromet; and (c) to terminate discussions and negotiations with Amgen at any time. Amgen recognizes that, except as\nexpressly provided in any Definitive Agreement between Amgen and Micromet: Micromet and its Representatives will be free to negotiate with, and\nto enter into any agreement or transaction with, any other interested party.\n9. No Waiver. No failure or delay by any Party in exercising any right, power or privilege under this Agreement will operate as a waiver\nthereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the\n6\nexercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of\na written instrument that is validly executed on behalf of each Party and that refers specifically to the particular provision or provisions being waived\nor amended.\n10. Remedies. Amgen acknowledges that money damages may not be a sufficient remedy for any breach of this Agreement by Amgen or any\nof Amgen’s Representatives and that Micromet may suffer irreparable harm as a result of any such breach. Accordingly, Micromet will also be\nentitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement.\nThe equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in\naddition to all other remedies available at law or in equity to Micromet.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon each Party and its assigns.\nThis Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of\nconflicts of laws). Each Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and\nfederal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agree\nthat service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement will be\neffective service of process for any action, suit or proceeding brought against such Party or any of such Party’s Representatives; (c) irrevocably and\nunconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state\nor federal court located in the State of Delaware; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and\nunconditionally agree not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state\nor federal court located in the State of Delaware has been brought in an inconvenient forum.\n12. Confidential Information.\n(a) For purposes of this Agreement, “Confidential Information” will be deemed to include:\n(i) any information (including any technology, know-how, patent application, test result, research study, business plan, budget,\nforecast or projection) relating directly or indirectly to the business of Micromet or any predecessor entity (whether prepared by Micromet or by any\nother Person and whether or not in written form) that is or has been made available to Amgen or any Representative of Amgen by or on behalf of\nMicromet or any Representative of Micromet on or after the date hereof; and\n(ii) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is\nor has been prepared by or for Amgen or any Representative of Amgen and that contains any information of the type referred to in section 11(a)(i)\n(or is based on, reflects or interprets such information in a manner in which such information can be reasonably and specifically derived).\n7\n(b) Notwithstanding the foregoing, for the purposes of this Agreement “Confidential Information” will not include:\n(i) any information disclosed by or behalf of Micromet in connection with the Collaboration Agreement, which information\nremains subject to the confidentiality obligations set forth in the Collaboration Agreement;\n(ii) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by Amgen or by any of Amgen’s Representatives;\n(iii) any information that was in Amgen’s or its Representatives’ possession prior to the time it was first made available to\nAmgen or any of Amgen’s Representatives by or on behalf of Micromet or any of Micromet’s Representatives, provided that the source of such\ninformation was not known by Amgen to be bound by any contractual or other obligation of confidentiality to Micromet or any other Person with\nrespect to any of such information;\n(iv) any information that is independently discovered or developed by Amgen or its Representatives without reference to or the\nuse of Confidential Information; or\n(v) any information that becomes available to Amgen on a non-confidential basis from a source other than Micromet or any of\nMicromet’s Representatives, provided that such source is not known by Amgen bound by any contractual or other obligation of confidentiality to\nMicromet with respect to any of such information.\n13. Confidentiality of Discussions.\nDuring the Standstill Period only, each Party agrees that it shall not disclose the following to any Person other than its Representatives who\n(a) need to know such Confidential Information for the purpose of helping it evaluate or negotiate a Potential Transaction and (b) are bound by\nobligations of confidentiality at least as restrictive as the provisions hereof: (i) the existence and terms of this Agreement, and the fact that\nConfidential Information has been made available to Amgen or any of its Representatives and (ii) the fact that discussions or negotiations are or may\nbe taking place between the Parties with respect to a Potential Transaction, and the proposed terms of any such transaction.\n14. Term.\nThis Agreement will become effective on the date of this Agreement and terminate on the date that is eighteen months from the Effective Date\n(the “Term”); provided, however, that (a) the obligations contained in this Agreement with respect to Confidential Information other than IP\nInformation and Collaboration Information (each as defined below) disclosed during the Term will survive any expiration or termination of this\nAgreement until the sixth anniversary of the termination date, at which time they shall terminate and (b) the obligations contained in this Agreement\nwith respect to IP Information (as defined below) disclosed during the Term shall survive any expiration or termination of this Agreement until the\ntenth anniversary of the\ntermination date, at which time they shall terminate, and (c) the obligations contained in this Agreement with respect to Collaboration Information\n(as defined below) disclosed during the Term will survive any expiration or termination of the Agreement until the later to occur of (i) the date that is\nthe sixth anniversary of the Effective Date and (ii) the date that Micromet is no longer subject to any obligation of confidentiality existing as of the\nEffective Date in respect of such information under a Third Party Collaboration Agreement (as defined below), provided that Micromet has disclosed\nto Amgen all applicable provisions under any partnering or collaboration agreement with any third Person covering the Collaboration Information, at\nwhich time all obligations in respect of Collaboration Information shall terminate. “IP Information” shall mean shall mean any Confidential\nInformation that includes know how, trade secrets, unpublished patent applications, invention disclosures and prosecution histories, and technical\ndata. “Collaboration Information” shall mean any Confidential Information in respect of which Micromet has an obligation of confidentiality to a\nthird Person under any partnering or collaboration agreement between Micromet and such third Person as of the date hereof (each a “Third Party\nCollaboration Agreement”).\n15. Miscellaneous.\n(a) “Affiliate” means an entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under\ncommon control with a Party. For purposes of this definition only, “control” and, with correlative meanings, the terms “controlled by” and “under\ncommon control with” means (a) the possession, directly or indirectly, of the power to direct the management or policies of an entity, whether\nthrough the ownership of voting securities, contract rights, voting rights, corporate governance or otherwise, or (b) the ownership, directly or\nindirectly, of more than 50% of the voting securities or other ownership interest of an entity entitled to vote in the election of directors or similar\ngoverning body.\n(b) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) an\nAffiliate of such Party, or (ii) an officer, director, employee, partner, attorney, accountant, consultant, advisor, agent or representative of such Party or\nof any of such Party’s Affiliates; provided that Representatives shall not include Excluded Representatives.\n(c) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(d) The bold-faced captions appearing in this Agreement have been included only for convenience and will not affect or be taken into\naccount in the interpretation of this Agreement.\n(e) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction will not affect the validity\nor enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other\nsituation or in any other jurisdiction.\n(f) By making Confidential Information or other information available to Amgen or Amgen’s Representatives, Micromet is not, and will\nnot be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright,\ntrademark or other proprietary or intellectual property right.\n(g) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit,\nproceeding, investigation, arbitration or dispute, it is acknowledged and agreed that Amgen and Micromet have a commonality of interest with\nrespect to such action, suit, proceeding, investigation, arbitration or dispute and that it is their mutual desire, intention and understanding that the\nsharing of such materials and other information is not intended to, and will not, affect the confidentiality of any of such materials or other\ninformation or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work\nproduct doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine will remain entitled to protection thereunder and will be entitled to\nprotection under the joint defense doctrine, and Amgen agrees to take all commercially reasonable measures necessary to preserve, to the fullest\nextent possible, the applicability of all such privileges or doctrines.\n(h) This Agreement constitutes the entire agreement between Amgen and Micromet regarding the subject matter hereof and supersedes\nany prior agreement between Amgen and Micromet regarding the subject matter hereof.\n[SIGNATURES ON NEXT PAGE]\n10\nThe Parties have caused this Agreement to be executed as of the Effective Date.\nAMGEN INC. MICROMET, INC.\nBy:  /s/ David Piacquad By: /s/ Jens Hennecke\nName: David Piacquad Name: Jens Hennecke, Ph.D.\nTitle: Vice President, Strategy and Title: Senior Vice President,\nCorporate Development Business Development\n11	EX-99.(D)(6) 9 d290608dex99d6.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT ("Agreement") is being entered into as of August 11, 2011 (the "Effective Date"), between\nAMGEN INC., a Delaware corporation (together with its Affiliates (as defined in section 14), "Amgen"), and MICROMET, INC., a Delaware\ncorporation (together with its Affiliates, "Micromet", and each of Micromet and Amgen individually or jointly referred to as "Party" and "Parties")\nIn\norder to facilitate the consideration and negotiation of a possible business combination involving Amgen and Micromet (the "Potential\nTransaction"), Amgen has requested access to certain non-public information regarding Micromet. This Agreement sets forth Amgen's obligations\nregarding the use and disclosure of such information and regarding various related matters.\nEach of the parties, intending to be legally bound, acknowledges and agrees as follows:\n1. Limitations on Use and Disclosure of Confidential Information.\n(a) Subject to section 4 below, neither Amgen nor any of Amgen's Representatives (as defined in section 13 below) will, at any time,\ndirectly or indirectly:\n(i) make use of any Confidential Information (as defined in section 12 below), except for the specific purpose of considering,\nevaluating and negotiating a Potential Transaction; or\n(ii) disclose any Confidential Information to any other Person (as defined in section 13 below).\n(b) Without the prior written consent of Micromet, Amgen will not disclose any of the Confidential Information to any Persons who are\nthe members representing Amgen on the "Joint Project Team" as defined in and established pursuant to that certain Collaboration and License\nAgreement, dated as of July 11, 2011, by and between Micromet, Inc., Micromet AG and Amgen Inc. (the "Collaboration Agreement") set forth on\nSchedule I hereto under the header "Excluded Project Team Members" C the "Excluded Representatives") and Amgen will not directly engage\nsuch\nExcluded Representatives in the process of evaluating or negotiating a Potential Transaction; provided, however, that if, after the date hereof and\nduring period of the Term that the Parties continue to be in discussions regarding a Potential Transaction, Amgen notifies Micromet in writing\npursuant to the Collaboration Agreement that it has added Persons to Joint Project Team, Schedule I will be revised to include those Persons as\nExcluded Representatives, with the restrictions applicable to Excluded Representatives effective in respect of such Person as of the date identified\nopposite such Person's name on Schedule I (which will be the date notice of the addition of such Person to the Joint Project Team was delivered\npursuant to the Collaboration Agreement); and provided, further, that notwithstanding any other provision of this section 1(b), the Persons on\nAmgen's project team established under the Collaboration Agreement who are listed on Schedule I under the header "Participating Project Team\nMembers" shall not be Excluded Representatives.\n(c) Amgen will be liable and responsible for any breach of this Agreement by any of its Representatives and for any actions taken by\nsuch Representatives on behalf of or for the direct benefit of Amgen that would have constituted a breach under this Agreement had such\nRepresentative been a party hereto. Amgen will (at its own expense) take all reasonable actions necessary to restrain its Representatives from making\nany unauthorized use or disclosure of any Confidential Information; provided, that in no event will Amgen be required to make any undertaking with\nrespect to its Representatives beyond that which it would undertake to protect the confidentiality of its own confidential information of a similar\nnature in the ordinary course of its business, but in no case shall Amgen use less than reasonable care in the protection of such Confidential\nInformation.\n2. Contacts between Amgen and Micromet.\n(a) During the Standstill Period, unless otherwise authorized by Micromet, Inc.'s Chief Executive Officer (the "CEO") or the chairman\nof\nMicromet, Inc.'s board of directors (the "Chairman"), Amgen and any Amgen Representatives will not contact or otherwise communicate\ndirectly with any of Micromet's officers, directors or employees on matters relating to the Potential Transaction except (i) through the CEO or the\nChairman, or (ii) at meetings and telephone calls attended by the CEO or the Chairman.\n(b)\nAny request by Amgen or any of its Representatives to review Confidential Information must be directed to the CEO, or such\nother\nPerson as the CEO may designate from time to time.\n3. No Representations by Micromet. Neither Micromet nor any of Micromet's Representatives will be under any obligation to make any\nConfidential Information available to Amgen or any of Amgen's Representatives or to supplement or update any Confidential Information\npreviously furnished. Neither Micromet nor any of its Representatives has made or is making any representation or warranty, express or implied, as\nto the accuracy or completeness of any Confidential Information, and neither Micromet nor any of its Representatives will have any liability to\nAmgen or to any of Amgen's Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors\ntherein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that\nprovides for the consummation of a Potential Transaction between Amgen and Micromet and is validly executed on behalf of Amgen and Micromet\n(a "Definitive Agreement") will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 1 above:\n(i) Amgen or its Representatives may disclose Confidential Information if and to the extent that Micromet consents in writing to\nAmgen's or its Representative's disclosure thereof;\n(ii) Subject to section 1(b) of this Agreement, Amgen may disclose Confidential Information to any Representative of Amgen,\nbut only to the extent such\n2\nRepresentative (A) needs to know such Confidential Information for the purpose of helping Amgen evaluate or negotiate a Potential Transaction, and\n(B) is bound by obligations of confidentiality at least as restrictive as the provisions hereof; and\n(iii) subject to section 4(b) below, Amgen may disclose Confidential Information (1) to the extent required by applicable law or\ngovernmental regulation (including without limitation any rule, regulation or policy statement of any national securities exchange, market or\nautomated quotation system on which any of Amgen's securities are listed or quoted), by valid legal process or in response to a demand by a\nregulatory agency, or (2) to establish Amgen's compliance with the terms and conditions hereof or its ongoing rights and responsibilities hereunder\nin the defense of a claim by Micromet that Amgen has breached this Agreement (including through its Representatives).\n(b) If Micromet delivers to Amgen a written notice stating that specifically identified documents or materials that are Confidential\nInformation may be disclosed only to specified Representatives of Amgen prior to the delivery of such to Amgen or its Representatives, then,\nnotwithstanding anything to the contrary contained in Section 4(a)(ii) above, Amgen will not thereafter disclose or permit the disclosure of any such\nConfidential Information to any other Representative of Amgen unless otherwise authorized by Micromet.\n(c) If Amgen or any of Amgen's Representatives is required by law or governmental regulation (including without limitation any rule,\nregulation or policy statement of any national securities exchange, market or automated quotation system on which any of Amgen's securities are\nlisted or quoted) or by subpoena or other valid legal process or in response to a demand by a regulatory agency to disclose any Confidential\nInformation to any Person, then Amgen will promptly provide Micromet with written notice of the requirement SO that Micromet may seek a\nprotective order or other appropriate remedy. Amgen will use commercially reasonable efforts (i) to cooperate fully with Micromet and Micromet's\nRepresentatives in any attempt by Micromet to obtain any such protective order or other remedy and (ii) cause its Representatives to do the same.\nIf\nMicromet elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that\nAmgen disclose Confidential Information, and if Amgen furnishes Micromet with a written opinion of reputable legal counsel confirming that the\ndisclosure of such Confidential Information is legally required, then Amgen may disclose such Confidential Information to the extent legally\nrequired; provided, however, that Amgen will use its commercially reasonable efforts to ensure that such Confidential Information is treated\nconfidentially by each Person to whom it is disclosed and will use its commercially reasonable efforts to cause its Representatives to do the same;\nprovided, that in no event will Amgen or its Representatives be required to make any undertaking beyond that which it would undertake to protect\nthe confidentiality of its own confidential information of a similar nature in the ordinary course of its business, but in no case shall Amgen use less\nthan reasonable care in the protection of such Confidential Information.\n5. Return of Confidential Information. If Amgen determines that it does not wish to proceed with the possible negotiated transaction with\nMicromet, Amgen will promptly advise Micromet in writing of that decision. Upon Micromet's written request, Amgen and Amgen's\nRepresentatives will, promptly deliver to Micromet any Confidential Information (and all copies\n3\nthereof) obtained or possessed by Amgen or any of Amgen's Representatives; provided, however, that, in lieu of delivering to Micromet any written\nmaterials Amgen and its Representatives may destroy such written materials and deliver to Micromet a certificate confirming their destruction.\nNotwithstanding the foregoing, Amgen's Representatives that are law firms may retain copies of the Confidential Information solely for archival\npurposes and to establish Amgen's compliance with the terms and conditions hereof or its ongoing rights and responsibilities hereunder and Amgen's\nRepresentatives that are lenders, financial advisors and/or accounting firms may retain, solely for compliance purposes, copies of the Confidential\nInformation in accordance with policies and procedures implemented by such persons in order to comply with law, regulation or professional\nstandards. Notwithstanding any other provision of this Agreement to the contrary, neither Amgen nor its Representatives will be required to destroy\nany electronic files created during any automatic backup that are subsequently stored securely by Amgen and/or its Representatives, provided that\nAmgen and its Representatives will not access with the intent to use any such electronic files following the date such electronic files would\notherwise be required to be redelivered or destroyed. Notwithstanding the delivery to Micromet (or the destruction by Amgen) of Confidential\nInformation pursuant to this section 5, Amgen and its Representatives will continue to be bound by their confidentiality obligations and other\nobligations under this Agreement.\n6. Limitation on Hiring and Soliciting Employees. During the twelve month period commencing on the Effective Date, none of Amgen's\nRepresentatives who have received Confidential Information under this Agreement will solicit or cause to be solicited any Covered Person (as\ndefined in this section 6 below) to terminate such Covered Person's employment relationship with Micromet in order to become an employee,\nconsultant, or independent contractor, to or for Amgen. This section 6 will not prevent Amgen from placing causing to be placed any general\nadvertisement or similar notice of open positions in the ordinary course of business that is not targeted specifically at employees of Micromet\nor\nengaging employee search firms that are not specifically instructed by Amgen to target Covered Persons. For purposes of this Agreement, "Covered\nPerson" will mean any Person who is an officer or employee of Micromet with a title of Director or higher as of the date of this Agreement or who\nbecomes an officer or employee with a title of Director or higher during the Term and before the termination of discussions regarding a Potential\nTransaction.\n7. Standstill Provisions.\n(a) Subject to section 7(c), without the prior written request or consent of Micromet, during the period commencing on the Effective\nDate and terminating on the earlier to occur of (i) eighteen months from that date or (ii) the date of any Terminating Event (defined below) (such\nperiod, the "Standstill Period"), Amgen will not directly or indirectly:\n(i) make, effect, initiate, cause or participate in (1) any acquisition of beneficial ownership of any securities of Micromet or any\nsecurities of any subsidiary of Micromet, (2) any acquisition of any material assets of Micromet (other than in connection with the Collaboration\nAgreement), (3) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or\nextraordinary transaction involving Micromet or any subsidiary of Micromet, or involving any securities or assets of Micromet or any securities or\nassets of any subsidiary of Micromet, or (4) any "solicitation" of "proxies" (as those terms are used in the proxy rules of the Securities and Exchange\nCommission) or consents with respect to any securities of Micromet;\n4\n(ii) form, join or participate in a "group" (as defined in the Securities Exchange Act of 1934 and the rules promulgated\nthereunder) with respect to the beneficial ownership of any securities of Micromet;\n(iii) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of\nMicromet;\n(iv) take any action that requires Micromet to make a public announcement regarding any of the types of matters set forth in\nclause "(i)" of this sentence;\n(v) enter into any discussions, negotiations, arrangement or agreement with any other Person (other than its Affiliates or\nMicromet) relating to any of the foregoing;\n(vi) publicly request or publicly propose that Micromet or any of Micromet's Representatives amend, waive or consider the\namendment or waiver of any provision set forth in this section 7(a); or\n(vii) agree to take, or encourage or propose the taking of, any action referred to in this section 7(a);\n(b) Notwithstanding any other provision of this Agreement:\n(i) nothing in this Agreement will prevent Amgen or its Representatives from communicating with the CEO or the Chairman to\nmake a proposal for or to negotiate with Micromet in respect of a tender or exchange offer, merger or other business combination, or any other of the\ntransactions described in section 7(a)(i) involving Micromet and Amgen so long as such communication is made confidentially;\n(ii) nothing in this Agreement will prohibit Amgen from acquiring any class of securities of Micromet (including the voting\nrights thereof) by or through (1) a diversified mutual or pension fund managed by an independent investment adviser or pension plan established for\nthe benefit of any of Amgen's employees or (2) any bona fide benefit plan maintained for the benefit of employees of Amgen (and, in the case of\nclauses (1) and (2) of this sentence, any such securities will not be considered beneficially owned by Amgen for purposes of section 7(a) above);\nprovided that, in the case of clauses (1) and (2), (A) such acquisitions are ordinary course trading activities in compliance with applicable\nsecurities\nlaws and Amgen will not in any way request or direct that the trustee or other administrator of such fund or plan purchase or acquire any equity\nsecurities, (B) such acquisitions are for passive investment not made with the purpose, or the effect, of either influencing the control of Micromet\nor\neffecting or preventing any control transaction involving Micromet and (C) such acquisitions, when combined with all other securities of the\nMicromet owned by Amgen, its affiliates and such funds and plans, will not represent 5% or more of the securities of Micromet; provided,\nfurther,\nthat, any acquisition and/or ownership of any class of securities of Micromet that results from actions by persons other than Amgen and its affiliates\n(including reverse stock splits, Micromet stock repurchases, etc.) will not be a violation of this paragraph;\n5\n(iii)\nnothing in this Agreement will prohibit Amgen from acquiring another biotechnology or pharmaceutical company\nthat\nbeneficially owns any securities of Micromet, provided that such biotechnology or pharmaceutical company will have acquired securities of\nMicromet other than in contemplation of Amgen acquiring such biotechnology or pharmaceutical company; and\n(iv) nothing in this Agreement will prohibit Amgen and its Representatives from initiating confidential discussions with, or\nsubmitting confidential proposals to, Micromet related to any commercial transaction between the Company and Micromet in the ordinary course\nbusiness (such as licensing, collaboration, research, development, marketing or comparable transactions).\n(c) For purposes of this Agreement, a "Terminating Event" will mean the occurrence of any of the following: (i) any Person\ncommences a tender or exchange offer for the majority of the voting power of Micromet; (ii) any Person or group that is or includes a company that\nis in the business of developing, marketing, selling or manufacturing human therapeutics acquires or proposes to acquire (and such proposal becomes\npublic) more than fifteen percent (15%) of Micromet's capital stock, as long as Amgen is not and does not become a member of such group; or\n(iii) Micromet or a third Person publicly announces that Micromet has entered into, or Micromet publicly proposes to enter into, a definitive\nagreement with one or more unaffiliated third Persons providing for the acquisition by such Person or group of more than 25% of the voting\nsecurities of Micromet or all or substantially all the assets of Micromet (other than in connection with an internal restructuring transaction involving\nonly Micromet, one or more of its subsidiaries and/or any holding company formed for the purpose of such transaction wholly owned by persons\nwho were stockholders of Micromet immediately prior to such transaction). The expiration of the Standstill Period will not terminate or otherwise\naffect any of the other provisions of this Agreement.\n8. No Obligation to Pursue Transaction. Unless Amgen and Micromet enter into a Definitive Agreement, no agreement providing for a\ntransaction\ninvolving\nMicromet will be deemed to exist between Amgen and Micromet, and neither Party will be under any obligation to negotiate\nor\nenter into any such agreement or transaction with Amgen. Micromet reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving Micromet, and to modify any procedures relating to any such process\nwithout giving notice to Amgen or any other Person; (b) to reject any proposal made by Amgen or any of Amgen's Representatives with respect\nto\na\ntransaction involving Micromet; and (c) to terminate discussions and negotiations with Amgen at any time. Amgen recognizes that, except as\nexpressly provided in any Definitive Agreement between Amgen and Micromet: Micromet and its Representatives will be free to negotiate with, and\nto enter into any agreement or transaction with, any other interested party.\n9. No Waiver. No failure or delay by any Party in exercising any right, power or privilege under this Agreement will operate as a waiver\nthereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the\n6\nexercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of\na\nwritten instrument that is validly executed on behalf of each Party and that refers specifically to the particular provision or provisions being waived\nor amended.\n10. Remedies. Amgen acknowledges that money damages may not be a sufficient remedy for any breach of this Agreement by Amgen or any\nof Amgen's Representatives and that Micromet may suffer irreparable harm as a result of any such breach. Accordingly, Micromet will also be\nentitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement.\nThe equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be\nin\naddition to all other remedies available at law or in equity to Micromet.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon each Party and its assigns.\nThis Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of\nconflicts of laws). Each Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and\nfederal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agree\nthat service of any process, summons, notice or document by U.S. registered mail to the address set forth at the end of this Agreement will be\neffective service of process for any action, suit or proceeding brought against such Party or any of such Party's Representatives; (c) irrevocably and\nunconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state\nor federal court located in the State of Delaware; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and\nunconditionally agree not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state\nor federal court located in the State of Delaware has been brought in an inconvenient forum.\n12. Confidential Information.\n(a) For purposes of this Agreement, "Confidential Information" will be deemed to include:\n(i) any information (including any technology, know-how, patent application, test result, research study, business plan, budget,\nforecast or projection) relating directly or indirectly to the business of Micromet or any predecessor entity (whether prepared by Micromet or by any\nother Person and whether or not in written form) that is or has been made available to Amgen or any Representative of Amgen by or on behalf\nof\nMicromet or any Representative of Micromet on or after the date hereof; and\n(ii) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is\nor has been prepared by or for Amgen or any Representative of Amgen and that contains any information of the type referred to in section 11(a)(i)\n(or is based on, reflects or interprets such information in a manner in which such information can be reasonably and specifically derived).\n7\n(b) Notwithstanding the foregoing, for the purposes of this Agreement "Confidential Information" will not include:\n(i) any information disclosed by or behalf of Micromet in connection with the Collaboration Agreement, which information\nremains subject to the confidentiality obligations set forth in the Collaboration Agreement;\n(ii) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by Amgen or by any of Amgen's Representatives;\n(iii) any information that was in Amgen's or its Representatives' possession prior to the time it was first made available to\nAmgen or any of Amgen's Representatives by or on behalf of Micromet or any of Micromet's Representatives, provided that the source of such\ninformation was not known by Amgen to be bound by any contractual or other obligation of confidentiality to Micromet or any other Person with\nrespect to any of such information;\n(iv) any information that is independently discovered or developed by Amgen or its Representatives without reference to or the\nuse of Confidential Information; or\n(v) any information that becomes available to Amgen on a non-confidential basis from a source other than Micromet or any of\nMicromet's Representatives, provided that such source is not known by Amgen bound by any contractual or other obligation of confidentiality to\nMicromet with respect to any of such information.\n13. Confidentiality of Discussions.\nDuring the Standstill Period only, each Party agrees that it shall not disclose the following to any Person other than its Representatives who\n(a) need to know such Confidential Information for the purpose of helping it evaluate or negotiate a Potential Transaction and (b) are bound by\nobligations of confidentiality at least as restrictive as the provisions hereof: (i) the existence and terms of this Agreement, and the fact that\nConfidential Information has been made available to Amgen or any of its Representatives and (ii) the fact that discussions or negotiations are or may\nbe taking place between the Parties with respect to a Potential Transaction, and the proposed terms of any such transaction.\n14. Term.\nThis Agreement will become effective on the date of this Agreement and terminate on the date that is eighteen months from the Effective Date\n(the "Term"); provided, however, that (a) the obligations contained in this Agreement with respect to Confidential Information other than IP\nInformation and Collaboration Information (each as defined below) disclosed during the Term will survive any expiration or termination of this\nAgreement until the sixth anniversary of the termination date, at which time they shall terminate and (b) the obligations contained in this Agreement\nwith respect to IP Information (as defined below) disclosed during the Term shall survive any expiration or termination of this Agreement until the\ntenth anniversary of the\n8\ntermination date, at which time they shall terminate, and (c) the obligations contained in this Agreement with respect to Collaboration Information\n(as defined below) disclosed during the Term will survive any expiration or termination of the Agreement until the later to occur of (i) the date that\nis\nthe sixth anniversary of the Effective Date and (ii) the date that Micromet is no longer subject to any obligation of confidentiality existing as of the\nEffective Date in respect of such information under a Third Party Collaboration Agreement (as defined below), provided that Micromet has disclosed\nto Amgen all applicable provisions under any partnering or collaboration agreement with any third Person covering the Collaboration Information, at\nwhich time all obligations in respect of Collaboration Information shall terminate. "IP Information" shall mean shall mean any Confidential\nInformation that includes know how, trade secrets, unpublished patent applications, invention disclosures and prosecution histories, and technical\ndata. "Collaboration Information" shall mean any Confidential Information in respect of which Micromet has an obligation of confidentiality to a\nthird Person under any partnering or collaboration agreement between Micromet and such third Person as of the date hereof (each a "Third Party\nCollaboration Agreement").\n15. Miscellaneous.\n(a) "Affiliate" means an entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under\ncommon control with a Party. For purposes of this definition only, "control" and, with correlative meanings, the terms "controlled by" and "under\ncommon control with" means (a) the possession, directly or indirectly, of the power to direct the management or policies of an entity, whether\nthrough the ownership of voting securities, contract rights, voting rights, corporate governance or otherwise, or (b) the ownership, directly or\nindirectly, of more than 50% of the voting securities or other ownership interest of an entity entitled to vote in the election of directors or similar\ngoverning body.\n(b) For purposes of this Agreement, a Party's "Representatives" will be deemed to include each Person that is or becomes (i) an\nAffiliate of such Party, or (ii) an officer, director, employee, partner, attorney, accountant, consultant, advisor, agent or representative of such Party or\nof any of such Party's Affiliates; provided that Representatives shall not include Excluded Representatives.\n(c) The term "Person," as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(d) The bold-faced captions appearing in this Agreement have been included only for convenience and will not affect or be taken into\naccount in the interpretation of this Agreement.\n(e) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction will not affect the validity\nor enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other\nsituation or in any other jurisdiction.\n9\n(f) By making Confidential Information or other information available to Amgen or Amgen's Representatives, Micromet is not, and will\nnot be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright,\ntrademark or other proprietary or intellectual property right.\n(g) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit,\nproceeding, investigation, arbitration or dispute, it is acknowledged and agreed that Amgen and Micromet have a commonality of interest with\nrespect to such action, suit, proceeding, investigation, arbitration or dispute and that it is their mutual desire, intention and understanding that the\nsharing of such materials and other information is not intended to, and will not, affect the confidentiality of any of such materials or other\ninformation or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work\nproduct doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine will remain entitled to protection thereunder and will be entitled to\nprotection under the joint defense doctrine, and Amgen agrees to take all commercially reasonable measures necessary to preserve, to the fullest\nextent possible, the applicability of all such privileges or doctrines.\n(h) This Agreement constitutes the entire agreement between Amgen and Micromet regarding the subject matter hereof and supersedes\nany prior agreement between Amgen and Micromet regarding the subject matter hereof.\n[SIGNATURES ON NEXT PAGE]\n10\nThe Parties have caused this Agreement to be executed as of the Effective Date.\nAMGEN INC.\nMICROMET, INC.\nBy:\n/s/ David Piacquad\nBy:\n/s/ Jens Hennecke\nName: David Piacquad\nName: Jens Hennecke, Ph.D.\nTitle: Vice President, Strategy and\nTitle: Senior Vice President,\nCorporate Development\nBusiness Development\n11	EX-99.(D)(6) 9 d290608dex99d6.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (“Agreement”) is being entered into as of August 11, 2011 (the “Effective Date”), between\nAMGEN INC., a Delaware corporation (together with its Affiliates (as defined in section 14), “Amgen”), and MICROMET, INC., a Delaware\ncorporation (together with its Affiliates, “Micromet”, and each of Micromet and Amgen individually or jointly referred to as “Party” and “Parties”)\nIn order to facilitate the consideration and negotiation of a possible business combination involving Amgen and Micromet (the “Potential\nTransaction”), Amgen has requested access to certain non-public information regarding Micromet. This Agreement sets forth Amgen’s obligations\nregarding the use and disclosure of such information and regarding various related matters.\nEach of the parties, intending to be legally bound, acknowledges and agrees as follows:\n1. Limitations on Use and Disclosure of Confidential Information.\n(a) Subject to section 4 below, neither Amgen nor any of Amgen’s Representatives (as defined in section 13 below) will, at any time,\ndirectly or indirectly:\n(i) make use of any Confidential Information (as defined in section 12 below), except for the specific purpose of considering,\nevaluating and negotiating a Potential Transaction; or\n(ii) disclose any Confidential Information to any other Person (as defined in section 13 below).\n(b) Without the prior written consent of Micromet, Amgen will not disclose any of the Confidential Information to any Persons who are\nthe members representing Amgen on the “Joint Project Team” as defined in and established pursuant to that certain Collaboration and License\nAgreement, dated as of July 11, 2011, by and between Micromet, Inc., Micromet AG and Amgen Inc. (the “Collaboration Agreement”) set forth on\nSchedule I hereto under the header “Excluded Project Team Members” ( the “Excluded Representatives”) and Amgen will not directly engage such\nExcluded Representatives in the process of evaluating or negotiating a Potential Transaction; provided, however, that if, after the date hereof and\nduring period of the Term that the Parties continue to be in discussions regarding a Potential Transaction, Amgen notifies Micromet in writing\npursuant to the Collaboration Agreement that it has added Persons to Joint Project Team, Schedule I will be revised to include those Persons as\nExcluded Representatives, with the restrictions applicable to Excluded Representatives effective in respect of such Person as of the date identified\nopposite such Person’s name on Schedule I (which will be the date notice of the addition of such Person to the Joint Project Team was delivered\npursuant to the Collaboration Agreement); and provided, further, that notwithstanding any other provision of this section 1(b), the Persons on\nAmgen’s project team established under the Collaboration Agreement who are listed on Schedule I under the header “Participating Project Team\nMembers” shall not be Excluded Representatives.\n(c) Amgen will be liable and responsible for any breach of this Agreement by any of its Representatives and for any actions taken by\nsuch Representatives on behalf of or for the direct benefit of Amgen that would have constituted a breach under this Agreement had such\nRepresentative been a party hereto. Amgen will (at its own expense) take all reasonable actions necessary to restrain its Representatives from making\nany unauthorized use or disclosure of any Confidential Information; provided, that in no event will Amgen be required to make any undertaking with\nrespect to its Representatives beyond that which it would undertake to protect the confidentiality of its own confidential information of a similar\nnature in the ordinary course of its business, but in no case shall Amgen use less than reasonable care in the protection of such Confidential\nInformation.\n2. Contacts between Amgen and Micromet.\n(a) During the Standstill Period, unless otherwise authorized by Micromet, Inc.’s Chief Executive Officer (the “CEO”) or the chairman\nof Micromet, Inc.’s board of directors (the “Chairman”), Amgen and any Amgen Representatives will not contact or otherwise communicate\ndirectly with any of Micromet’s officers, directors or employees on matters relating to the Potential Transaction except (i) through the CEO or the\nChairman, or (ii) at meetings and telephone calls attended by the CEO or the Chairman.\n(b) Any request by Amgen or any of its Representatives to review Confidential Information must be directed to the CEO, or such other\nPerson as the CEO may designate from time to time.\n3. No Representations by Micromet. Neither Micromet nor any of Micromet’s Representatives will be under any obligation to make any\nConfidential Information available to Amgen or any of Amgen’s Representatives or to supplement or update any Confidential Information\npreviously furnished. Neither Micromet nor any of its Representatives has made or is making any representation or warranty, express or implied, as\nto the accuracy or completeness of any Confidential Information, and neither Micromet nor any of its Representatives will have any liability to\nAmgen or to any of Amgen’s Representatives relating to or resulting from the use of any Confidential Information or any inaccuracies or errors\ntherein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive written agreement that\nprovides for the consummation of a Potential Transaction between Amgen and Micromet and is validly executed on behalf of Amgen and Micromet\n(a “Definitive Agreement”) will have legal effect.\n4. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 1 above:\n(i) Amgen or its Representatives may disclose Confidential Information if and to the extent that Micromet consents in writing to\nAmgen’s or its Representative’s disclosure thereof;\n(ii) Subject to section 1(b) of this Agreement, Amgen may disclose Confidential Information to any Representative of Amgen,\nbut only to the extent such\n2\nRepresentative (A) needs to know such Confidential Information for the purpose of helping Amgen evaluate or negotiate a Potential Transaction, and\n(B) is bound by obligations of confidentiality at least as restrictive as the provisions hereof; and\n(iii) subject to section 4(b) below, Amgen may disclose Confidential Information (1) to the extent required by applicable law or\ngovernmental regulation (including without limitation any rule, regulation or policy statement of any national securities exchange, market or\nautomated quotation system on which any of Amgen’s securities are listed or quoted), by valid legal process or in response to a demand by a\nregulatory agency, or (2) to establish Amgen’s compliance with the terms and conditions hereof or its ongoing rights and responsibilities hereunder\nin the defense of a claim by Micromet that Amgen has breached this Agreement (including through its Representatives).\n(b) If Micromet delivers to Amgen a written notice stating that specifically identified documents or materials that are Confidential\nInformation may be disclosed only to specified Representatives of Amgen prior to the delivery of such to Amgen or its Representatives, then,\nnotwithstanding anything to the contrary contained in Section 4(a)(ii) above, Amgen will not thereafter disclose or permit the disclosure of any such\nConfidential Information to any other Representative of Amgen unless otherwise authorized by Micromet.\n(c) If Amgen or any of Amgen’s Representatives is required by law or governmental regulation (including without limitation any rule,\nregulation or policy statement of any national securities exchange, market or automated quotation system on which any of Amgen’s securities are\nlisted or quoted) or by subpoena or other valid legal process or in response to a demand by a regulatory agency to disclose any Confidential\nInformation to any Person, then Amgen will promptly provide Micromet with written notice of the requirement so that Micromet may seek a\nprotective order or other appropriate remedy. Amgen will use commercially reasonable efforts (i) to cooperate fully with Micromet and Micromet’s\nRepresentatives in any attempt by Micromet to obtain any such protective order or other remedy and (ii) cause its Representatives to do the same. If\nMicromet elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that\nAmgen disclose Confidential Information, and if Amgen furnishes Micromet with a written opinion of reputable legal counsel confirming that the\ndisclosure of such Confidential Information is legally required, then Amgen may disclose such Confidential Information to the extent legally\nrequired; provided, however, that Amgen will use its commercially reasonable efforts to ensure that such Confidential Information is treated\nconfidentially by each Person to whom it is disclosed and will use its commercially reasonable efforts to cause its Representatives to do the same;\nprovided, that in no event will Amgen or its Representatives be required to make any undertaking beyond that which it would undertake to protect\nthe confidentiality of its own confidential information of a similar nature in the ordinary course of its business, but in no case shall Amgen use less\nthan reasonable care in the protection of such Confidential Information.\n5. Return of Confidential Information. If Amgen determines that it does not wish to proceed with the possible negotiated transaction with\nMicromet, Amgen will promptly advise Micromet in writing of that decision. Upon Micromet’s written request, Amgen and Amgen’s\nRepresentatives will, promptly deliver to Micromet any Confidential Information (and all copies\n3\nthereof) obtained or possessed by Amgen or any of Amgen’s Representatives; provided, however, that, in lieu of delivering to Micromet any written\nmaterials Amgen and its Representatives may destroy such written materials and deliver to Micromet a certificate confirming their destruction.\nNotwithstanding the foregoing, Amgen’s Representatives that are law firms may retain copies of the Confidential Information solely for archival\npurposes and to establish Amgen’s compliance with the terms and conditions hereof or its ongoing rights and responsibilities hereunder and Amgen’s\nRepresentatives that are lenders, financial advisors and/or accounting firms may retain, solely for compliance purposes, copies of the Confidential\nInformation in accordance with policies and procedures implemented by such persons in order to comply with law, regulation or professional\nstandards. Notwithstanding any other provision of this Agreement to the contrary, neither Amgen nor its Representatives will be required to destroy\nany electronic files created during any automatic backup that are subsequently stored securely by Amgen and/or its Representatives, provided that\nAmgen and its Representatives will not access with the intent to use any such electronic files following the date such electronic files would\notherwise be required to be redelivered or destroyed. Notwithstanding the delivery to Micromet (or the destruction by Amgen) of Confidential\nInformation pursuant to this section 5, Amgen and its Representatives will continue to be bound by their confidentiality obligations and other\nobligations under this Agreement.\n6. Limitation on Hiring and Soliciting Employees. During the twelve month period commencing on the Effective Date, none of Amgen’s\nRepresentatives who have received Confidential Information under this Agreement will solicit or cause to be solicited any Covered Person (as\ndefined in this section 6 below) to terminate such Covered Person’s employment relationship with Micromet in order to become an employee,\nconsultant, or independent contractor, to or for Amgen. This section 6 will not prevent Amgen from placing causing to be placed any general\nadvertisement or similar notice of open positions in the ordinary course of business that is not targeted specifically at employees of Micromet or\nengaging employee search firms that are not specifically instructed by Amgen to target Covered Persons. For purposes of this Agreement, “Covered\nPerson” will mean any Person who is an officer or employee of Micromet with a title of Director or higher as of the date of this Agreement or who\nbecomes an officer or employee with a title of Director or higher during the Term and before the termination of discussions regarding a Potential\nTransaction.\n7. Standstill Provisions.\n(a) Subject to section 7(c), , without the prior written request or consent of Micromet, during the period commencing on the Effective\nDate and terminating on the earlier to occur of (i) eighteen months from that date or (ii) the date of any Terminating Event (defined below) (such\nperiod, the “Standstill Period”), Amgen will not directly or indirectly:\n(i) make, effect, initiate, cause or participate in (1) any acquisition of beneficial ownership of any securities of Micromet or any\nsecurities of any subsidiary of Micromet, (2) any acquisition of any material assets of Micromet (other than in connection with the Collaboration\nAgreement), (3) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or\nextraordinary transaction involving Micromet or any subsidiary of Micromet, or involving any securities or assets of Micromet or any securities or\nassets of any subsidiary of Micromet, or (4) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and Exchange\nCommission) or consents with respect to any securities of Micromet;\n4\n(ii) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated\nthereunder) with respect to the beneficial ownership of any securities of Micromet;\n(iii) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of\nMicromet;\n(iv) take any action that requires Micromet to make a public announcement regarding any of the types of matters set forth in\nclause “(i)” of this sentence;\n(v) enter into any discussions, negotiations, arrangement or agreement with any other Person (other than its Affiliates or\nMicromet) relating to any of the foregoing;\n(vi) publicly request or publicly propose that Micromet or any of Micromet’s Representatives amend, waive or consider the\namendment or waiver of any provision set forth in this section 7(a); or\n(vii) agree to take, or encourage or propose the taking of, any action referred to in this section 7(a);\n(b) Notwithstanding any other provision of this Agreement:\n(i) nothing in this Agreement will prevent Amgen or its Representatives from communicating with the CEO or the Chairman to\nmake a proposal for or to negotiate with Micromet in respect of a tender or exchange offer, merger or other business combination, or any other of the\ntransactions described in section 7(a)(i) involving Micromet and Amgen so long as such communication is made confidentially;\n(ii) nothing in this Agreement will prohibit Amgen from acquiring any class of securities of Micromet (including the voting\nrights thereof) by or through (1) a diversified mutual or pension fund managed by an independent investment adviser or pension plan established for\nthe benefit of any of Amgen’s employees or (2) any bona fide benefit plan maintained for the benefit of employees of Amgen (and, in the case of\nclauses (1) and (2) of this sentence, any such securities will not be considered beneficially owned by Amgen for purposes of section 7(a) above);\nprovided that, in the case of clauses (1) and (2), (A) such acquisitions are ordinary course trading activities in compliance with applicable securities\nlaws and Amgen will not in any way request or direct that the trustee or other administrator of such fund or plan purchase or acquire any equity\nsecurities, (B) such acquisitions are for passive investment not made with the purpose, or the effect, of either influencing the control of Micromet or\neffecting or preventing any control transaction involving Micromet and (C) such acquisitions, when combined with all other securities of the\nMicromet owned by Amgen, its affiliates and such funds and plans, will not represent 5% or more of the securities of Micromet; provided, further,\nthat, any acquisition and/or ownership of any class of securities of Micromet that results from actions by persons other than Amgen and its affiliates\n(including reverse stock splits, Micromet stock repurchases, etc.) will not be a violation of this paragraph;\n5\n(iii) nothing in this Agreement will prohibit Amgen from acquiring another biotechnology or pharmaceutical company that\nbeneficially owns any securities of Micromet, provided that such biotechnology or pharmaceutical company will have acquired securities of\nMicromet other than in contemplation of Amgen acquiring such biotechnology or pharmaceutical company; and\n(iv) nothing in this Agreement will prohibit Amgen and its Representatives from initiating confidential discussions with, or\nsubmitting confidential proposals to, Micromet related to any commercial transaction between the Company and Micromet in the ordinary course\nbusiness (such as licensing, collaboration, research, development, marketing or comparable transactions).\n(c) For purposes of this Agreement, a “Terminating Event” will mean the occurrence of any of the following: (i) any Person\ncommences a tender or exchange offer for the majority of the voting power of Micromet; (ii) any Person or group that is or includes a company that\nis in the business of developing, marketing, selling or manufacturing human therapeutics acquires or proposes to acquire (and such proposal becomes\npublic) more than fifteen percent (15%) of Micromet’s capital stock, as long as Amgen is not and does not become a member of such group; or\n(iii) Micromet or a third Person publicly announces that Micromet has entered into, or Micromet publicly proposes to enter into, a definitive\nagreement with one or more unaffiliated third Persons providing for the acquisition by such Person or group of more than 25% of the voting\nsecurities of Micromet or all or substantially all the assets of Micromet (other than in connection with an internal restructuring transaction involving\nonly Micromet, one or more of its subsidiaries and/or any holding company formed for the purpose of such transaction wholly owned by persons\nwho were stockholders of Micromet immediately prior to such transaction). The expiration of the Standstill Period will not terminate or otherwise\naffect any of the other provisions of this Agreement.\n8. No Obligation to Pursue Transaction. Unless Amgen and Micromet enter into a Definitive Agreement, no agreement providing for a\ntransaction involving Micromet will be deemed to exist between Amgen and Micromet, and neither Party will be under any obligation to negotiate or\nenter into any such agreement or transaction with Amgen. Micromet reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving Micromet, and to modify any procedures relating to any such process\nwithout giving notice to Amgen or any other Person; (b) to reject any proposal made by Amgen or any of Amgen’s Representatives with respect to a\ntransaction involving Micromet; and (c) to terminate discussions and negotiations with Amgen at any time. Amgen recognizes that, except as\nexpressly provided in any Definitive Agreement between Amgen and Micromet: Micromet and its Representatives will be free to negotiate with, and\nto enter into any agreement or transaction with, any other interested party.\n9. No Waiver. No failure or delay by any Party in exercising any right, power or privilege under this Agreement will operate as a waiver\nthereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the\n6\nexercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of\na written instrument that is validly executed on behalf of each Party and that refers specifically to the particular provision or provisions being waived\nor amended.\n10. Remedies. Amgen acknowledges that money damages may not be a sufficient remedy for any breach of this Agreement by Amgen or any\nof Amgen’s Representatives and that Micromet may suffer irreparable harm as a result of any such breach. Accordingly, Micromet will also be\nentitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement.\nThe equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in\naddition to all other remedies available at law or in equity to Micromet.\n11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon each Party and its assigns.\nThis Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of\nconflicts of laws). Each Party and its Representatives: (a) irrevocably and unconditionally consent and submit to the jurisdiction of the state and\nfederal courts located in the State of Delaware for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agree\nthat service of any process, summons, notice or document by U.S . registered mail to the address set forth at the end of this Agreement will be\neffective service of process for any action, suit or proceeding brought against such Party or any of such Party’s Representatives; (c) irrevocably and\nunconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in any state\nor federal court located in the State of Delaware; and (d) irrevocably and unconditionally waive the right to plead or claim, and irrevocably and\nunconditionally agree not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any state\nor federal court located in the State of Delaware has been brought in an inconvenient forum.\n12. Confidential Information.\n(a) For purposes of this Agreement, “Confidential Information” will be deemed to include:\n(i) any information (including any technology, know-how, patent application, test result, research study, business plan, budget,\nforecast or projection) relating directly or indirectly to the business of Micromet or any predecessor entity (whether prepared by Micromet or by any\nother Person and whether or not in written form) that is or has been made available to Amgen or any Representative of Amgen by or on behalf of\nMicromet or any Representative of Micromet on or after the date hereof; and\n(ii) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is\nor has been prepared by or for Amgen or any Representative of Amgen and that contains any information of the type referred to in section 11(a)(i)\n(or is based on, reflects or interprets such information in a manner in which such information can be reasonably and specifically derived).\n7\n(b) Notwithstanding the foregoing, for the purposes of this Agreement “Confidential Information” will not include:\n(i) any information disclosed by or behalf of Micromet in connection with the Collaboration Agreement, which information\nremains subject to the confidentiality obligations set forth in the Collaboration Agreement;\n(ii) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by Amgen or by any of Amgen’s Representatives;\n(iii) any information that was in Amgen’s or its Representatives’ possession prior to the time it was first made available to\nAmgen or any of Amgen’s Representatives by or on behalf of Micromet or any of Micromet’s Representatives, provided that the source of such\ninformation was not known by Amgen to be bound by any contractual or other obligation of confidentiality to Micromet or any other Person with\nrespect to any of such information;\n(iv) any information that is independently discovered or developed by Amgen or its Representatives without reference to or the\nuse of Confidential Information; or\n(v) any information that becomes available to Amgen on a non-confidential basis from a source other than Micromet or any of\nMicromet’s Representatives, provided that such source is not known by Amgen bound by any contractual or other obligation of confidentiality to\nMicromet with respect to any of such information.\n13. Confidentiality of Discussions.\nDuring the Standstill Period only, each Party agrees that it shall not disclose the following to any Person other than its Representatives who\n(a) need to know such Confidential Information for the purpose of helping it evaluate or negotiate a Potential Transaction and (b) are bound by\nobligations of confidentiality at least as restrictive as the provisions hereof: (i) the existence and terms of this Agreement, and the fact that\nConfidential Information has been made available to Amgen or any of its Representatives and (ii) the fact that discussions or negotiations are or may\nbe taking place between the Parties with respect to a Potential Transaction, and the proposed terms of any such transaction.\n14. Term.\nThis Agreement will become effective on the date of this Agreement and terminate on the date that is eighteen months from the Effective Date\n(the “Term”); provided, however, that (a) the obligations contained in this Agreement with respect to Confidential Information other than IP\nInformation and Collaboration Information (each as defined below) disclosed during the Term will survive any expiration or termination of this\nAgreement until the sixth anniversary of the termination date, at which time they shall terminate and (b) the obligations contained in this Agreement\nwith respect to IP Information (as defined below) disclosed during the Term shall survive any expiration or termination of this Agreement until the\ntenth anniversary of the\n8\ntermination date, at which time they shall terminate, and (c) the obligations contained in this Agreement with respect to Collaboration Information\n(as defined below) disclosed during the Term will survive any expiration or termination of the Agreement until the later to occur of (i) the date that is\nthe sixth anniversary of the Effective Date and (ii) the date that Micromet is no longer subject to any obligation of confidentiality existing as of the\nEffective Date in respect of such information under a Third Party Collaboration Agreement (as defined below), provided that Micromet has disclosed\nto Amgen all applicable provisions under any partnering or collaboration agreement with any third Person covering the Collaboration Information, at\nwhich time all obligations in respect of Collaboration Information shall terminate. “IP Information” shall mean shall mean any Confidential\nInformation that includes know how, trade secrets, unpublished patent applications, invention disclosures and prosecution histories, and technical\ndata. “Collaboration Information” shall mean any Confidential Information in respect of which Micromet has an obligation of confidentiality to a\nthird Person under any partnering or collaboration agreement between Micromet and such third Person as of the date hereof (each a “Third Party\nCollaboration Agreement”).\n15. Miscellaneous.\n(a) “Affiliate” means an entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under\ncommon control with a Party. For purposes of this definition only, “control” and, with correlative meanings, the terms “controlled by” and “under\ncommon control with” means (a) the possession, directly or indirectly, of the power to direct the management or policies of an entity, whether\nthrough the ownership of voting securities, contract rights, voting rights, corporate governance or otherwise, or (b) the ownership, directly or\nindirectly, of more than 50% of the voting securities or other ownership interest of an entity entitled to vote in the election of directors or similar\ngoverning body.\n(b) For purposes of this Agreement, a Party’s “Representatives” will be deemed to include each Person that is or becomes (i) an\nAffiliate of such Party, or (ii) an officer, director, employee, partner, attorney, accountant, consultant, advisor, agent or representative of such Party or\nof any of such Party’s Affiliates; provided that Representatives shall not include Excluded Representatives.\n(c) The term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n(d) The bold-faced captions appearing in this Agreement have been included only for convenience and will not affect or be taken into\naccount in the interpretation of this Agreement.\n(e) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction will not affect the validity\nor enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other\nsituation or in any other jurisdiction.\n9\n(f) By making Confidential Information or other information available to Amgen or Amgen’s Representatives, Micromet is not, and will\nnot be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright,\ntrademark or other proprietary or intellectual property right.\n(g) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit,\nproceeding, investigation, arbitration or dispute, it is acknowledged and agreed that Amgen and Micromet have a commonality of interest with\nrespect to such action, suit, proceeding, investigation, arbitration or dispute and that it is their mutual desire, intention and understanding that the\nsharing of such materials and other information is not intended to, and will not, affect the confidentiality of any of such materials or other\ninformation or waive or diminish the continued protection of any of such materials or other information under the attorney-client privilege, work\nproduct doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to protection under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine will remain entitled to protection thereunder and will be entitled to\nprotection under the joint defense doctrine, and Amgen agrees to take all commercially reasonable measures necessary to preserve, to the fullest\nextent possible, the applicability of all such privileges or doctrines.\n(h) This Agreement constitutes the entire agreement between Amgen and Micromet regarding the subject matter hereof and supersedes\nany prior agreement between Amgen and Micromet regarding the subject matter hereof.\n[SIGNATURES ON NEXT PAGE]\n10\nThe Parties have caused this Agreement to be executed as of the Effective Date.\nAMGEN INC.\nMICROMET, INC.\nBy: /s/ David Piacquad\nBy: /s/ Jens Hennecke\nName: David Piacquad\nName: Jens Hennecke, Ph.D.\nTitle: Vice President, Strategy and\nTitle: Senior Vice President,\nCorporate Development\nBusiness Development\n11
+c4ccca5a5502597fc4a75b4ca50337df.pdf	effective_date jurisdiction party term	EX-99.(D)(12) 18 f68556ex99-d12.txt (D)(12) 1 EXHIBIT (d)(12) August 1, 1991 CNDA#18694 CORPORATE NON-\nDISCLOSURE AGREEMENT This Agreement is entered into and made effective as of the date set forth above by and\nbetween Intel Corporation (hereinafter "Intel"), and the participant identified below (hereinafter "Participant"). Unless\nthe Participant indicates that this Agreement shall apply only to a specific division or location, this Agreement shall\napply to the Participant's entire company. THE PARTIES AGREE AS FOLLOWS: CONFIDENTIAL INFORMATION\nTRANSMITTAL FORM. The confidential, proprietary and trade secret information of the disclosing party (hereinafter\n"Confidential Information") provided hereunder, is that information described in the Confidential Information\nTransmittal Record (CITR) form executed from time to time hereafter. CITR's are subject to the terms of this Agreement\nand shall be executed by the parties prior to the disclosure of Confidential Information. All information described in a\nCITR and marked with a "confidential," "proprietary," or similar legend shall be deemed Confidential Information. All\nConfidential Information received from the disclosing party shall be in tangible form. The CITR shall set forth the\ndisclosing party, a description of the Confidential Information disclosed, the names of the representatives of the parties\nand the date when the disclosure covered by the CITR commenced. OBLIGATIONS OF RECEIVING PARTY. The\nreceiving party shall not disclose Confidential Information to any third party without the prior written approval of the\ndisclosing party. The receiving party shall maintain the Confidential Information with at least the same degree of care\nthat the receiving party uses to protect its own similar categories of confidential and proprietary information, but no less\nthan a reasonable degree of care under the circumstances. The receiving party shall not make any copies of Confidential\nInformation received from the disclosing party except as necessary for its employees with a need to know. Any copies\nwhich are made shall be identified as belonging to the disclosing party and marked "confidential," "proprietary," or with\na similar legend. PERIOD OF CONFIDENTIALITY. Unless a shorter period is stated in the applicable CITR, the\ndisclosing party will not assert any claims against the receiving party for disclosures of Confidential Information made\nmore than five (5) years from the date of the CITR. TERMINATION OF OBLIGATION OF CONFIDENTIALITY. The\nreceiving party shall not be liable for the disclosure of any Confidential Information which is: (a) in the public domain\nother than by a breach of this Agreement on the part of the receiving party; or (b) rightfully received from a third party\nwithout any obligation of confidentiality; or (c) rightfully known to the receiving party without any limitation on use or\ndisclosure prior to its receipt from the disclosing party; or (d) independently developed by employees of the receiving\nparty; or (e) generally made available to third parties by the disclosing party without restriction on disclosure. TITLE.\nTitle or the right to possess Confidential Information as between the parties shall remain in the disclosing party. NO\nOBLIGATION OF DISCLOSURE. Neither party has any obligation to disclose Confidential Information to the other.\nEither party may, at any time, cease giving Confidential Information to the other party without any liability or request in\nwriting the return of Confidential Information previously disclosed. TERMINATION AND DUTY TO RETURN. Either\nparty may terminate this Agreement at any time without cause upon notice to the other party. However, all obligations of\nconfidentiality shall survive the termination of this Agreement. In the event this Agreement is terminated, and the\ndisclosing party so requests, the receiving party shall promptly return or destroy (and certify destruction of) all\nConfidential Information which it received from the disclosing party along with all copies which it made. GENERAL.\n(a) This Agreement is neither intended to nor shall it be construed as creating a joint venture, partnership or other form\nof business association between the parties, nor an obligation to buy or sell products using or incorporating the\nConfidential Information, nor as creating an implied or express license grant from either party to the other. (b) The\nfailure of either party to enforce any right resulting from breach of any provision of this Agreement by the other party\nshall not be deemed a waiver of any right relating to a subsequent breach of such provision or of any other right\nhereunder. (c) This Agreement shall be governed by the laws of the State of California. (d) This Agreement, any\naccompanying CITR and CITRs executed from time to time hereafter which incorporate the terms of this Agreement\nconstitute the entire agreement, written or verbal, between the parties with respect to the disclosure(s) of Confidential\nInformation described in each CITR. This Agreement may not be amended except in writing signed by a duly authorized\nrepresentative of the respective parties. Any other agreements between the parties, including non-disclosure agreements,\nshall not be affected by this Agreement. AGREED: PARTICIPANT: XIRCOM -------------------------------------------\nINTEL CORPORATION (Company Name, Division/Sub, if applicable) 3065 Bowers Avenue Santa Clara, CA 95052\n26025 Mureau Road -------------------------------------------------------- (Address) Calabasas CA 91302 -------------------------\n-- -- - -- - -- - -- - -- - -- - -- - -- - -- - -- (City) (State) (Zip) /s/ CARL EVERETT /s/ JEROME P. CHERWINSKI -------------------------\n------- -------------------------------------------------------- Signature Signature CARL EVERETTJEROMEP.CHERWINSKI\n-------------------------------- -------------------------------------------------------- PrintedName PrintedName VICE\nPRESIDENT-DIRECTOR OF SALES V.P. ENG. 230-0000-30 (7/90) -------------------------------- ----------------------------\n---------------------------- TitleTitle\nSEND TO: CORPORATE CONTRACT MANAGEMENT, FM 1-03	EX-99.(D)(12) 18 f68556ex99-d12.txt (D)(12) 1 EXHIBIT (d)(12) August 1, 1991 CNDA#18694 CORPORATE NON-\nDISCLOSURE AGREEMENT This Agreement is entered into and made effective as of the date set forth above by and\nbetween Intel Corporation (hereinafter "Intel"), and the participant identified below (hereinafter "Participant”). Unless\nthe Participant indicates that this Agreement shall apply only to a specific division or location, this Agreement shall\napply to the Participant's entire company. THE PARTIES AGREE AS FOLLOWS: CONFIDENTIAL INFORMATION\nTRANSMITTAL FORM. The confidential, proprietary and trade secret information of the disclosing party (hereinafter\n"Confidential Information") provided hereunder, is that information described in the Confidential Information\nTransmittal Record (CITR) form executed from time to time hereafter. CITR's are subject to the terms of this Agreement\nand shall be executed by the parties prior to the disclosure of Confidential Information. All information described in a\nCITR and marked with a "confidential," "proprietary," or similar legend shall be deemed Confidential Information. All\nConfidential Information received from the disclosing party shall be in tangible form. The CITR shall set forth the\ndisclosing party, a description of the Confidential Information disclosed, the names of the representatives of the parties\nand the date when the disclosure covered by the CITR commenced. OBLIGATIONS OF RECEIVING PARTY. The\nreceiving party shall not disclose Confidential Information to any third party without the prior written approval of the\ndisclosing party. The receiving party shall maintain the Confidential Information with at least the same degree of care\nthat the receiving party uses to protect its own similar categories of confidential and proprietary information, but no less\nthan a reasonable degree of care under the circumstances. The receiving party shall not make any copies of Confidential\nInformation received from the disclosing party except as necessary for its employees with a need to know. Any copies\nwhich are made shall be identified as belonging to the disclosing party and marked "confidential," "proprietary,” or with\na similar legend. PERIOD OF CONFIDENTIALITY. Unless a shorter period is stated in the applicable CITR, the\ndisclosing party will not assert any claims against the receiving party for disclosures of Confidential Information made\nmore than five (5) years from the date of the CITR. TERMINATION OF OBLIGATION OF CONFIDENTIALITY. The\nreceiving party shall not be liable for the disclosure of any Confidential Information which is: (a) in the public domain\nother than by a breach of this Agreement on the part of the receiving party; or (b) rightfully received from a third party\nwithout any obligation of confidentiality; or (c) rightfully known to the receiving party without any limitation on use or\ndisclosure prior to its receipt from the disclosing party; or (d) independently developed by employees of the receiving\nparty; or (e) generally made available to third parties by the disclosing party without restriction on disclosure. TITLE.\nTitle or the right to possess Confidential Information as between the parties shall remain in the disclosing party. NO\nOBLIGATION OF DISCLOSURE. Neither party has any obligation to disclose Confidential Information to the other.\nEither party may, at any time, cease giving Confidential Information to the other party without any liability or request in\nwriting the return of Confidential Information previously disclosed. TERMINATION AND DUTY TO RETURN. Either\nparty may terminate this Agreement at any time without cause upon notice to the other party. However, all obligations of\nconfidentiality shall survive the termination of this Agreement. In the event this Agreement is terminated, and the\ndisclosing party so requests, the receiving party shall promptly return or destroy (and certify destruction of) all\nConfidential Information which it received from the disclosing party along with all copies which it made. GENERAL.\n(a) This Agreement is neither intended to nor shall it be construed as creating a joint venture, partnership or other form\nof business association between the parties, nor an obligation to buy or sell products using or incorporating the\nConfidential Information, nor as creating an implied or express license grant from either party to the other. (b) The\nfailure of either party to enforce any right resulting from breach of any provision of this Agreement by the other party\nshall not be deemed a waiver of any right relating to a subsequent breach of such provision or of any other right\nhereunder. (c) This Agreement shall be governed by the laws of the State of California. (d) This Agreement, any\naccompanying CITR and CITRs executed from time to time hereafter which incorporate the terms of this Agreement\nconstitute the entire agreement, written or verbal, between the parties with respect to the disclosure(s) of Confidential\nInformation described in each CITR. This Agreement may not be amended except in writing signed by a duly authorized\nrepresentative of the respective parties. Any other agreements between the parties, including non-disclosure agreements,\nshall not be affected by thlS Agreement AG—RE—E—B—PAR:PI-GI-PANT%H-RGGM————————————————\n	EX-99.(D)(12) 18 f68556ex99-d12.tx (D)(12) 1 EXHIBIT (d)(12) August 1, 1991 CNDA#18694 CORPORATE NON-\nDISCLOSURE AGREEMENT This Agreement is entered into and made effective as of the date set forth above by and\nbetween Intel Corporation (hereinafter "Intel"), and the participant identified below (hereinafter "Participant"). Unless\nthe Participant indicates that this Agreement shall apply only to a specific division or location, this Agreement shall\napply to the Participant's entire company. THE PARTIES AGREE AS FOLLOWS: CONFIDENTIAL INFORMATION\nTRANSMITTAL FORM. The confidential, proprietary and trade secret information of the disclosing party (hereinafter\n"Confidential Information") provided hereunder, is that information described in the Confidential Information\nTransmittal Record (CITR) form executed from time to time hereafter. CITR's are subject to the terms of this Agreement\nand shall be executed by the parties prior to the disclosure of Confidential Information. All information described in a\nCITR and marked with a "confidential," "proprietary," or similar legend shall be deemed Confidential Information. All\nConfidential Information received from the disclosing party shall be in tangible form The CITR shall set forth the\ndisclosing party, a description of the Confidential Information disclosed, the names of the representatives of the parties\nand\nthe\ndate\nwhen\nthe\ndisclosure\ncovered\nby\nthe\nCITR\ncommenced.\nOBLIGATIONS\nOF\nRECEIVING\nPARTY.\nThe\nreceiving party shall not disclose Confidential Information to any third party without the prior written approval of the\ndisclosing party. The receiving party shall maintain the Confidential Information with at least the same degree of care\nthat the receiving party uses to protect its own similar categories of confidential and proprietary information, but no less\nthan a reasonable degree of care under the circumstances. The receiving party shall not make any copies of Confidential\nInformation\nreceived\nfrom\nthe\ndisclosing\nparty\nexcept\nas\nnecessary\nfor\nits\nemployees\nwith\na\nneed\nto\nknow.\nAny\ncopies\nwhich are made shall be identified as belonging to the disclosing party and marked "confidential," "proprietary," or with\na similar legend. PERIOD OF CONFIDENTIALITY. Unless a shorter period is stated in the applicable CITR, the\ndisclosing party will not assert any claims against the receiving party for disclosures of Confidential Information made\nmore than five (5) years from the date of the CITR. TERMINATION OF OBLIGATION OF CONFIDENTIALITY The\nreceiving party shall not be liable for the disclosure of any Confidential Information which is: (a) in the public domain\nother than by a breach of this Agreement on the part of the receiving party; or (b) rightfully received from a third party\nwithout any obligation of confidentiality; or (c) rightfully known to the receiving party without any limitation on use or\ndisclosure prior to its receipt from the disclosing party; or (d) independently developed by employees of the receiving\nparty; or (e) generally made available to third parties by the disclosing party without restriction on disclosure. TITLE.\nTitle or the right to possess Confidential Information as between the parties shall remain in the disclosing party. NO\nOBLIGATION OF DISCLOSURE. Neither party has any obligation to disclose Confidential Information to the other.\nEither party may, at any time, cease giving Confidential Information to the other party without any liability or request in\nwriting\nthe\nreturn\nof\nConfidential\nInformation\npreviously\ndisclosed.\nTERMINATION\nAND\nDUTY\nTO\nRETURN.\nEither\nparty may terminate this Agreement at any time without cause upon notice to the other party. However, all obligations\nof\nconfidentiality shall survive the termination of this Agreement. In the event this Agreement is terminated, and the\ndisclosing party SO requests, the receiving party shall promptly return or destroy (and certify destruction of) all\nConfidential Information which it received from the disclosing party along with all copies which it made. GENERAL.\n(a) This Agreement is neither intended to nor shall it be construed as creating a joint venture, partnership or other form\nof business association between the parties, nor an obligation to buy or sell products using or incorporating the\nConfidential Information, nor as creating an implied or express license grant from either party to the other. (b) The\nfailure of either party to enforce any right resulting from breach of any provision of this Agreement by the other party\nshall not be deemed a waiver of any right relating to a subsequent breach of such provision or of any other right\nhereunder. (c) This Agreement shall be governed by the laws of the State of California. (d) This Agreement, any\naccompanying CITR and CITRs executed from time to time hereafter which incorporate the terms of this Agreement\nconstitute the entire agreement, written or verbal, between the parties with respect to the disclosure(s) of Confidential\nInformation described in each CITR. This Agreement may not be amended except in writing signed by a duly authorized\nrepresentative of the respective parties. Any other agreements between the parties, including non-disclosure agreements,\nshall not be affected by this Agreement. AGREED: XHREOM\nName, if pplieable) 3065 Bowers Avenue Santa\nElara,\nEA\n95052\n26025- Read\nAddress) Calabasas EA 91302\n(City) (State) (Zip) Ist CARL 4st\nSignature\nName\nOF (790)\nTitle Title	EX-99.(D)(12) 18 f68556ex99-d12.txt (D)(12) 1 EXHIBIT (d)(12) August 1, 1991 CNDA#18694 CORPORATE NON-\nDISCLOSURE AGREEMENT This Agreement is entered into and made effective as of the date set forth above by and\nbetween Intel Corporation (hereinafter "Intel"), and the participant identified below (hereinafter "Participant"). Unless\nthe Participant indicates that this Agreement shall apply only to a specific division or location, this Agreement shall\napply to the Participant's entire company. THE PARTIES AGREE AS FOLLOWS: CONFIDENTIAL INFORMATION\nTRANSMITTAL FORM. The confidential, proprietary and trade secret information of the disclosing party (hereinafter\n"Confidential Information") provided hereunder, is that information described in the Confidential Information\nTransmittal Record (CITR) form executed from time to time hereafter. CITR's are subject to the terms of this Agreement\nand shall be executed by the parties prior to the disclosure of Confidential Information. All information described in a\nCITR and marked with a "confidential," "proprietary," or similar legend shall be deemed Confidential Information. All\nConfidential Information received from the disclosing party shall be in tangible form. The CITR shall set forth the\ndisclosing party, a description of the Confidential Information disclosed, the names of the representatives of the parties\nand the date when the disclosure covered by the CITR commenced. OBLIGATIONS OF RECEIVING PARTY. The\nreceiving party shall not disclose Confidential Information to any third party without the prior written approval of the\ndisclosing party. The receiving party shall maintain the Confidential Information with at least the same degree of care\nthat the receiving party uses to protect its own similar categories of confidential and proprietary information, but no less\nthan a reasonable degree of care under the circumstances. The receiving party shall not make any copies of Confidential\nInformation received from the disclosing party except as necessary for its employees with a need to know. Any copies\nwhich are made shall be identified as belonging to the disclosing party and marked "confidential," "proprietary," or with\na similar legend. PERIOD OF CONFIDENTIALITY. Unless a shorter period is stated in the applicable CITR, the\ndisclosing party will not assert any claims against the receiving party for disclosures of Confidential Information made\nmore than five (5) years from the date of the CITR. TERMINATION OF OBLIGATION OF CONFIDENTIALITY. The\nreceiving party shall not be liable for the disclosure of any Confidential Information which is: (a) in the public domain\nother than by a breach of this Agreement on the part of the receiving party; or (b) rightfully received from a third party\nwithout any obligation of confidentiality; or (c) rightfully known to the receiving party without any limitation on use or\ndisclosure prior to its receipt from the disclosing party; or (d) independently developed by employees of the receiving\nparty; or (e) generally made available to third parties by the disclosing party without restriction on disclosure. TITLE.\nTitle or the right to possess Confidential Information as between the parties shall remain in the disclosing party. NO\nOBLIGATION OF DISCLOSURE. Neither party has any obligation to disclose Confidential Information to the other.\nEither party may, at any time, cease giving Confidential Information to the other party without any liability or request in\nwriting the return of Confidential Information previously disclosed. TERMINATION AND DUTY TO RETURN. Either\nparty may terminate this Agreement at any time without cause upon notice to the other party. However, all obligations of\nconfidentiality shall survive the termination of this Agreement. In the event this Agreement is terminated, and the\ndisclosing party so requests, the receiving party shall promptly return or destroy (and certify destruction of) all\nConfidential Information which it received from the disclosing party along with all copies which it made. GENERAL.\n(a) This Agreement is neither intended to nor shall it be construed as creating a joint venture, partnership or other form\nof business association between the parties, nor an obligation to buy or sell products using or incorporating the\nConfidential Information, nor as creating an implied or express license grant from either party to the other. (b) The\nfailure of either party to enforce any right resulting from breach of any provision of this Agreement by the other party\nshall not be deemed a waiver of any right relating to a subsequent breach of such provision or of any other right\nhereunder. (c) This Agreement shall be governed by the laws of the State of California. (d) This Agreement, any\naccompanying CITR and CITRs executed from time to time hereafter which incorporate the terms of this Agreement\nconstitute the entire agreement, written or verbal, between the parties with respect to the disclosure(s) of Confidential\nInformation described in each CITR. This Agreement may not be amended except in writing signed by a duly authorized\nrepresentative of the respective parties. Any other agreements between the parties, including non-disclosure agreements,\nshall not be affected by this Agreement. AGREED: PARTICIPANT: XIRCOM -------------------------------------------\nINTEL CORPORATION (Company Name, Division/Sub, if applicable) 3065 Bowers Avenue Santa Clara, CA 95052\n26025 Mureau Road -------------------------------------------------------- (Address) Calabasas CA 91302 -------------------------\n-- -- - -- - -- - -- - -- - -- - -- - -- - -- - -- (City) (State) (Zip) /s/ CARL EVERETT /s/ JEROME P. CHERWINSKI -------------------------\n------- -------------------------------------------------------- Signature Signature CARL EVERETTJEROMEP.CHERWINSKI\n-------------------------------- -------------------------------------------------------- PrintedName PrintedName VICE\nPRESIDENT-DIRECTOR OF SALES V.P. ENG. 230-0000-30 (7/90) -------------------------------- ----------------------------\n---------------------------- TitleTitle\nSEND TO: CORPORATE CONTRACT MANAGEMENT, FM 1-03
+c58882f7f9c693e3f6c11d0f945f395e.pdf	effective_date jurisdiction party term	EX-10.22 2 dex1022.htm NON-DISCLOSURE, NON-SOLICITATION AND NON -COMPETITION AGREEMENT\nEXHIBIT 10.22\nNON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION\nIn consideration of your employment (or continued employment) with or provision of services to J. Crew Group, Inc. and its affiliates\n(collectively, the “Company”) and for other good and valuable consideration, receipt of which is hereby acknowledged, you agree as follows:\n1. Agreement Not to Disclose Confidential Information. In the course of your employment with or provision of services to the Company,\nyou have and will have acquired and have had access to confidential or proprietary information about the Company, including but not limited to,\ntrade secrets, methods, models, passwords, access to computer files, financial information and records, computer software programs, agreements\nand/or contracts between the Company and its vendors and suppliers, the Company’s merchandising, marketing and/or creative policies, practices,\nconcepts, strategies, and methods of operations, inventory, pricing and price change strategies, possible new product lines, future merchandise\ndesigns, patterns, fabrication or fit information, internal policies, pricing policies and procedures, cost estimates, employee lists, training manuals,\nfinancial or business projections, unannounced financial data such as sales, earnings or capital requirements, possible mergers, acquisitions or joint\nventures and information about or received from vendors and other companies with which the Company does business. The foregoing shall be\ncollectively referred to as “Confidential Information.” You are aware that the Confidential Information is not readily available to the public. You\nagree that during your employment or provision of services and for a period of three (3) years thereafter, you will keep confidential and not disclose\nthe Confidential Information to anyone or use it for your own benefit or for the benefit of others, except in performing your duties as our employee\nor agent. You agree that this restriction shall apply whether or not any such information is marked “confidential.”\nAll memoranda, disks, files, notes, records or other documents, whether in electronic form or hard copy (collectively, the “material”) compiled\nby you or made available to you during your employment (whether or not the material contains confidential information) are the property of the\nCompany and shall be delivered to the Company on the termination of your employment or at any other time upon request. Except in connection\nwith your employment, you agree that you will not make or retain copies or excerpts of the material.\n2. Agreement Not to Engage in Unfair Competition. You agree that your position with the Company requires and will continue to require\nthe performance of services which are special, unique, extraordinary and of an intellectual and/or artistic character and places you in a position of\nconfidence and trust with the Company. You further acknowledge that the rendering of services to the Company necessarily requires the disclosure\nof confidential information and trade secrets of the Company. You agree that in the course of your employment with or rendering of services to the\nCompany, you will develop a personal acquaintanceship and relationship with the vendors and other business associates of the Company and\nknowledge of their affairs and requirements. Consequently, you agree that it is reasonable and necessary for the protection of the goodwill and\nbusiness of the Company that you make the covenants contained herein. Accordingly, you agree that while you are in the Company’s employ and for\nthe period of twelve months after the termination of your employment, for any reason whatsoever (including “Good Reason,” as defined below), you\nshall not directly or indirectly, except on behalf of the Company:\n(a) render services to or accept employment, either directly as an employee or owner, or indirectly, as a paid or unpaid consultant or\nindependent contractor of any entity identified on Schedule A hereto (as may be updated by the Company and communicated to you from time\nto time); or\n(b) employ as an employee or retain as a consultant any person who is then or at any time during the preceding twelve months was an\nemployee of or consultant to the Company, or persuade or attempt to persuade any employee of or consultant to the Company to leave the\nemploy of the Company or to become employed as an employee or retained as a consultant by anyone other than the Company.\n3. Termination Without Cause or For Good Reason. Should your employment be (a) terminated by the Company without “Cause,” as\ndefined below, or terminated by you for “Good Reason,” as defined below; and (b) the Company does not consent to waive any of the post-\nemployment restrictions contained in paragraph 2(a) above, and (c) you execute and deliver to Company a Separation Agreement and Release in a\nform acceptable to the Company, and you do not revoke the Separation Agreement and Release, the Company will pay you a severance payment\nequal to (i) a pro-rata portion of the bonus, if any, to which you would have otherwise been entitled as of the date of termination, to be paid, less all\napplicable deductions, according to the Company’s normal bonus payment schedule (bonuses are generally paid in mid-April after the end of the\nfiscal year); (ii) twelve (12) months of your then-current base salary, to be paid, less all applicable deductions, according to the Company’s normal\npayroll practices for a period coextensive with the restricted period (twelve months); and (iii) during the restricted period, reimbursement for out-of-\npocket COBRA payments paid by you to continue your group health benefits, provided you submit relevant supporting documentation to the\nCompany evidencing such payments. Notwithstanding anything herein to the contrary, however, your right to receive the foregoing payments shall\nterminate effective immediately upon the date that you become employed by another entity as an employee, consultant or otherwise, and you agree\nto notify the Senior Vice-President of Human Resources in writing prior to the effective date of any such employment. If you fail to so notify the\nSenior Vice-President of Human Resources, (a) you will forfeit your right to receive the payments described above (to the extent the payments were\nnot theretofore paid) and (b) the Company shall be entitled to recover any payments already made to you or on your behalf.\nFor purposes of this agreement, “Cause” shall mean gross incompetence; failure to comply with the Company’s policies including those\ncontained in the Company’s Code of Ethics and Business Practices; indictment, conviction or admission of any crime involving dishonesty or moral\nturpitude; participation in any act of misconduct, insubordination or fraud against the Company; use of alcohol or drugs which interferes with your\nperformance of your duties or compromises the integrity or reputation of the Company; and excessive absence from work other than as a result of\ndisability. For purposes of this agreement, “Good Reason” shall mean either of the following: (i) any requirement by the Company that you report\ndirectly to an individual other than an Executive Vice-President or functional equivalent or (ii) any action by the Company that results in a material\nand continuing diminution in your duties or responsibilities, in each case without your consent and provided that the Company will have at least 30\ndays to remedy such situation. No payment will be required if the Company consents in its sole discretion to request by you to waive the post-\ntermination restrictions on your employment contained in paragraph 2(a) herein or if the conditions set forth in this Section 3 are otherwise not met.\n4. Termination With Cause or Resignation of Employment Without Good Reason. If the Company terminates your employment and such\ntermination is for “Cause,” as defined above, or if you resign your employment for any reason other than for “Good Reason,” as defined above, then\nthe Company shall pay you all wages due through the termination date. In the event of termination for Cause or your resignation other than for Good\nReason, the Company will not pay any severance, and the restrictions contained in paragraph 2(a) above will remain in full force and effect unless\nwaived by the Company.\n5. Term. The term of this agreement shall be three (3) years, beginning on the date signed by you, as set forth below, and terminating on the\nthird anniversary of such date. At the Company’s request upon or in advance of the termination of this agreement, you will enter into discussions to\nextend the terms of this agreement or negotiate in good faith an agreement of similar effect.\nNotwithstanding the foregoing, in the event that your employment terminates prior to the third anniversary, you shall remain subject to the\npost-termination restrictions contained in Sections 1 and 2 hereof and shall be entitled to the severance payment contained in Section 3 hereof\nprovided that the terms and conditions applicable thereto have been satisfied.\n6. Injunctive Relief. You agree that any actual or threatened breach by you of the covenants set forth in paragraphs 1 and 2 of this agreement\nwould result in irreparable harm to the Company for which monetary damages alone would be an insufficient remedy. Thus, although nothing in this\nparagraph will prohibit the Company from pursuing any remedies available to it against you under applicable law (which shall be\ncumulative with those remedies set forth herein), you specifically agree that, in the event of any threatened or actual breach of this agreement by\nyou, the Company shall be entitled to a temporary restraining order and, thereafter, a preliminary and permanent injunction and other equitable relief\nincluding, without limitation, an equitable accounting of earnings, profits, and other benefits, from a court of competent jurisdiction, as well as\nreimbursement from you for any attorneys’ fees and other costs incurred by the Company in obtaining such relief. No specification in this agreement\nof any legal or equitable remedy shall be construed as a waiver or prohibition against pursuing any other legal or equitable remedies in the event of a\nthreatened or actual breach of this agreement by you.\n7. Severability. If any provision of this agreement, or any part thereof, is found to be invalid or unenforceable, the same shall not affect the\nremaining provisions, which shall be given full effect, without regard to the invalid portions. Moreover, if any one or more of the provisions\ncontained in this agreement shall be held to be excessively broad as to duration, scope, activity or subject, such provisions shall be construed by\nlimiting and reducing them so as to be enforceable to the maximum extent with applicable law.\n8. At-Will Employment. This agreement is limited to the foregoing terms and shall not be construed to create any relationship between you\nand the Company other than at-will employment for all purposes. This agreement supersedes all agreements concerning the subject matter hereof.\n9. Governing Law. The terms of this agreement and all rights and obligations of the parties thereto including its enforcement shall be\ninterpreted and governed by the laws of the state of New York.\nAGREED TO AND ACCEPTED:\nSignature:\n/s/ Libby Wadle\nPrint Name:\nLibby Wadle\nLibby Wadle\nDate:\n8/8/06\nSCHEDULE A TO NON-DISCLOSURE,\nNON-SOLICITATION AND NON -COMPETITION AGREEMENT\nUnless waived in writing by the Company, the post-termination restrictions on employment contained in paragraph 2(a) above shall apply to\nemployment with the following entities, as well as their parent and subsidiary companies:\nA&F Brands\nAnn Taylor\nAmerican Eagle Outfitters Brands\nArmani Exchange\nBarney’s\nBrooks Brothers\nCalvin Klein\nChildren’s Place\nCoach\nCole Haan\nEddie Bauer\nGap Brands\nGymboree Brands\nLimited Brands\nLucky Brand\nLVMH\nRalph Lauren brands\nTheory\nTommy Hilfiger\nUrban Outfitters\nAny retail apparel start-up operated by one of the above companies	EX-10.22 2 dex1022.htm NON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION AGREEMENT\nEXHIBIT 10.22\nNON-DISCI.OSURE, NON-SOLICITATION AND NON-COMPETITION\nIn consideration of your employment (or continued employment) with or provision of services to J. Crew Group, Inc. and its affiliates\n(collectively, the “Company”) and for other good and valuable consideration, receipt of which is hereby acknowledged, you agree as follows:\n1. Agreement Not to Disclose Confidential Information. In the course of your employment with or provision of services to the Company,\nyou have and will have acquired and have had access to confidential or proprietary information about the Company, including but not limited to,\ntrade secrets, methods, models, passwords, access to computer files, financial information and records, computer software programs, agreements\nand/or contracts between the Company and its vendors and suppliers, the Company’s merchandising, marketing and/or creative policies, practices,\nconcepts, strategies, and methods of operations, inventory, pricing and price change strategies, possible new product lines, future merchandise\ndesigns, patterns, fabrication or fit information, internal policies, pricing policies and procedures, cost estimates, employee lists, training manuals,\nfinancial or business projections, unannounced financial data such as sales, earnings or capital requirements, possible mergers, acquisitions or joint\nventures and information about or received from vendors and other companies with which the Company does business. The foregoing shall be\ncollectively referred to as “Confidential Information.” You are aware that the Confidential Information is not readily available to the public. You\nagree that during your employment or provision of services and for a period of three (3) years thereafter, you will keep confidential and not disclose\nthe Confidential Information to anyone or use it for your own benefit or for the benefit of others, except in performing your duties as our employee\nor agent. You agree that this restriction shall apply whether or not any such information is marked “confidential.”\nAll memoranda, disks, files, notes, records or other documents, whether in electronic form or hard copy (collectively, the “material”) compiled\nby you or made available to you during your employment (whether or not the material contains confidential information) are the property of the\nCompany and shall be delivered to the Company on the termination of your employment or at any other time upon request. Except in connection\nwith your employment, you agree that you will not make or retain copies or excerpts of the material.\n2. Agreement Not to Engage in Unfair Competition. You agree that your position with the Company requires and will continue to require\nthe performance of services which are special, unique, extraordinary and of an intellectual and/or artistic character and places you in a position of\nconfidence and trust with the Company. You further acknowledge that the rendering of services to the Company necessarily requires the disclosure\nof confidential information and trade secrets of the Company. You agree that in the course of your employment with or rendering of services to the\nCompany, you will develop a personal acquaintanceship and relationship with the vendors and other business associates of the Company and\nknowledge of their affairs and requirements. Consequently, you agree that it is reasonable and necessary for the protection of the goodwill and\nbusiness of the Company that you make the covenants contained herein. Accordingly, you agree that while you are in the Company’s employ and for\nthe period of twelve months after the termination of your employment, for any reason whatsoever (including “Good Reason,” as defined below), you\nshall not directly or indirectly, except on behalf of the Company:\n(a) render services to or accept employment, either directly as an employee or owner, or indirectly, as a paid or unpaid consultant or\nindependent contractor of any entity identified on Schedule A hereto (as may be updated by the Company and communicated to you from time\nto time); or\n(b) employ as an employee or retain as a consultant any person who is then or at any time during the preceding twelve months was an\nemployee of or consultant to the Company, or persuade or attempt to persuade any employee of or consultant to the Company to leave the\nemploy of the Company or to become employed as an employee or retained as a consultant by anyone other than the Company.\n3. Termination Without Cause or For Good Reason. Should your employment be (a) terminated by the Company without “Cause,” as\ndefined below, or terminated by you for “Good Reason,” as defined below; and (b) the Company does not consent to waive any of the post-\nemployment restrictions contained in paragraph 2(a) above, and (c) you execute and deliver to Company a Separation Agreement and Release in a\nform acceptable to the Company, and you do not revoke the Separation Agreement and Release, the Company will pay you a severance payment\nequal to (i) a pro-rata portion of the bonus, if any, to which you would have otherwise been entitled as of the date of termination, to be paid, less all\napplicable deductions, according to the Company’s normal bonus payment schedule (bonuses are generally paid in mid-April after the end of the\nfiscal year); (ii) twelve (12) months of your then-current base salary, to be paid, less all applicable deductions, according to the Company’s normal\npayroll practices for a period coextensive with the restricted period (twelve months); and (iii) during the restricted period, reimbursement for out-of-\npocket COBRA payments paid by you to continue your group health benefits, provided you submit relevant supporting documentation to the\nCompany evidencing such payments. Notwithstanding anything herein to the contrary, however, your right to receive the foregoing payments shall\nterminate effective immediately upon the date that you become employed by another entity as an employee, consultant or otherwise, and you agree\nto notify the Senior Vice-President of Human Resources in writing prior to the effective date of any such employment. If you fail to so notify the\nSenior Vice-President of Human Resources, (a) you will forfeit your right to receive the payments described above (to the extent the payments were\nnot theretofore paid) and (b) the Company shall be entitled to recover any payments already made to you or on your behalf.\nFor purposes of this agreement, “Cause” shall mean gross incompetence; failure to comply with the Company’s policies including those\ncontained in the Company’s Code of Ethics and Business Practices; indictment, conviction or admission of any crime involving dishonesty or moral\nturpitude; participation in any act of misconduct, insubordination or fraud against the Company; use of alcohol or drugs which interferes with your\nperformance of your duties or compromises the integrity or reputation of the Company; and excessive absence from work other than as a result of\ndisability. For purposes of this agreement, “Good Reason” shall mean either of the following: (i) any requirement by the Company that you report\ndirectly to an individual other than an Executive Vice-President or functional equivalent or (ii) any action by the Company that results in a material\nand continuing diminution in your duties or responsibilities, in each case without your consent and provided that the Company will have at least 30\ndays to remedy such situation. No payment will be required if the Company consents in its sole discretion to request by you to waive the post-\ntermination restrictions on your employment contained in paragraph 2(a) herein or if the conditions set forth in this Section 3 are otherwise not met.\n4. Termination With Cause or Resignation of Employment Without Good Reason. If the Company terminates your employment and such\ntermination is for “Cause,” as defined above, or if you resign your employment for any reason other than for “Good Reason,” as defined above, then\nthe Company shall pay you all wages due through the termination date. In the event of termination for Cause or your resignation other than for Good\nReason, the Company will not pay any severance, and the restrictions contained in paragraph 2(a) above will remain in full force and effect unless\nwaived by the Company.\n5. Term. The term of this agreement shall be three (3) years, beginning on the date signed by you, as set forth below, and terminating on the\nthird anniversary of such date. At the Company’s request upon or in advance of the termination of this agreement, you will enter into discussions to\nextend the terms of this agreement or negotiate in good faith an agreement of similar effect.\nNotwithstanding the foregoing, in the event that your employment terminates prior to the third anniversary, you shall remain subject to the\npost-termination restrictions contained in Sections 1 and 2 hereof and shall be entitled to the severance payment contained in Section 3 hereof\nprovided that the terms and conditions applicable thereto have been satisfied.\n6. Injunctive Relief. You agree that any actual or threatened breach by you of the covenants set forth in paragraphs 1 and 2 of this agreement\nwould result in irreparable harm to the Company for which monetary damages alone would be an insufficient remedy. Thus, although nothing in this\nparagraph will prohibit the Company from pursuing any remedies available to it against you under applicable law (which shall be\ncumulative with those remedies set forth herein), you specifically agree that, in the event of any threatened or actual breach of this agreement by\nyou, the Company shall be entitled to a temporary restraining order and, thereafter, a preliminary and permanent injunction and other equitable relief\nincluding, without limitation, an equitable accounting of earnings, profits, and other benefits, from a court of competent jurisdiction, as well as\nreimbursement from you for any attorneys’ fees and other costs incurred by the Company in obtaining such relief. No specification in this agreement\nof any legal or equitable remedy shall be construed as a waiver or prohibition against pursuing any other legal or equitable remedies in the event of a\nthreatened or actual breach of this agreement by you.\n7. Severability. If any provision of this agreement, or any part thereof, is found to be invalid or unenforceable, the same shall not affect the\nremaining provisions, which shall be given full effect, without regard to the invalid portions. Moreover, if any one or more of the provisions\ncontained in this agreement shall be held to be excessively broad as to duration, scope, activity or subject, such provisions shall be construed by\nlimiting and reducing them so as to be enforceable to the maximum extent with applicable law.\n8. At-Will Employment. This agreement is limited to the foregoing terms and shall not be construed to create any relationship between you\nand the Company other than at-will employment for all purposes. This agreement supersedes all agreements concerning the subject matter hereof.\n9. Governing Law. The terms of this agreement and all rights and obligations of the parties thereto including its enforcement shall be\ninterpreted and governed by the laws of the state of New York.\nAGREED TO AND ACCEPTED:\nSignature: /s/ Libby Wadle Print Name: Libby Wadle\nLibby Wadle\nDate: 8/8/06\nSCHEDULE A TO NON-DISCLOSURE,\nNON-SOLICITATION AND NON-COMPETITION AGREEMENT\nUnless waived in writing by the Company, the post-termination restrictions on employment contained in paragraph 2(a) above shall apply to\nemployment with the following entities, as well as their parent and subsidiary companies:\nA&F Brands\nAnn Taylor\nAmerican Eagle Outfitters Brands\nArmani Exchange\nBarney’s\nBrooks Brothers\nCalvin Klein\nChildren’s Place\nCoach\nCole Haan\nEddie Bauer\nGap Brands\nGymboree Brands\nLimited Brands\nLucky Brand\nLVMH\nRalph Lauren brands\nTheory\nTommy Hilfiger\nUrban Outfitters\nAny retail apparel start-up operated by one of the above companies	EX-10.22 2 ex1022.htm NON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION AGREEMENT\nEXHIBIT 10.22\nNON-DISCLOSURE NON-SOLICITATION AND NON-COMPETITION\nIn consideration of your employment (or continued employment) with or provision of services to J. Crew Group, Inc. and its affiliates\n(collectively, the "Company") and for other good and valuable consideration, receipt of which is hereby acknowledged, you agree as follows:\n1. Agreement Not to Disclose Confidential Information. In the course of your employment with or provision of services to the Company,\nyou have and will have acquired and have had access to confidential or proprietary information about the Company, including but not limited to,\ntrade secrets, methods, models, passwords, access to computer files, financial information and records, computer software programs, agreements\nand/or\ncontracts\nbetween\nthe\nCompany\nand\nits\nvendors\nand\nsuppliers,\nthe\nCompany's\nmerchandising,\nmarketing\nand/or\ncreative\npolicies,\npractices,\nconcepts, strategies, and methods of operations, inventory, pricing and price change strategies, possible new product lines, future merchandise\ndesigns, patterns, fabrication or fit information, internal policies, pricing policies and procedures, cost estimates, employee lists, training manuals,\nfinancial or business projections, unannounced financial data such as sales, earnings or capital requirements, possible mergers, acquisitions or joint\nventures and information about or received from vendors and other companies with which the Company does business. The foregoing shall be\ncollectively referred to as "Confidentia Information." You are aware that the Confidential Information is not readily available to the public. You\nagree that during your employment or provision of services and for a period of three (3) years thereafter, you will keep confidential and not disclose\nthe Confidential Information to anyone or use it for your own benefit or for the benefit of others, except in performing your duties as our employee\nor agent. You agree that this restriction shall apply whether or not any such information is marked "confidential."\nAll memoranda, disks, files, notes, records or other documents, whether in electronic form or hard copy (collectively, the "material") compiled\nby you or made available to you during your employment (whether or not the material contains confidential information) are the property of the\nCompany and shall be delivered to the Company on the termination of your employment or at any other time upon request. Except in connection\nwith your employment, you agree that you will not make or retain copies or excerpts of the material.\n2. Agreement Not to Engage in Unfair Competition. You agree that your position with the Company requires and will continue to require\nthe performance of services which are special, unique, extraordinary and of an intellectual and/or artistic character and places you in a position of\nconfidence and trust with the Company. You further acknowledge that the rendering of services to the Company necessarily requires the disclosure\nof\nconfidential information and trade secrets of the Company. You agree that in the course of your employment with or rendering of services to\nthe\nCompany, you will develop a personal acquaintanceship and relationship with the vendors and other business associates of the Company and\nknowledge of their affairs and requirements. Consequently, you agree that it is reasonable and necessary for the protection of the goodwill and\nbusiness of the Company that you make the covenants contained herein. Accordingly, you agree that while you are in the Company's employ and for\nthe period of twelve months after the termination of your employment, for any reason whatsoever (including "Good Reason," as defined below),\nyou\nshall not directly or indirectly, except on behalf of the Company:\n(a) render services to or accept employment, either directly as an employee or owner, or indirectly, as a paid or unpaid consultant or\nindependent contractor of any entity identified on Schedule A hereto (as may be updated by the Company and communicated to you from time\nto time); or\n(b) employ as an employee or retain as a consultant any person who is then or at any time during the preceding twelve months was an\nemployee of or consultant to the Company, or persuade or attempt to persuade any employee of or consultant to the Company to leave the\nemploy of the Company or to become employed as an employee or retained as a consultant by anyone other than the Company.\n3. Termination Without Cause or For Good Reason. Should your employment be (a) terminated by the Company without "Cause," as\ndefined below, or terminated by you for "Good Reason," as defined below; and (b) the Company does not consent to waive any of the post-\nemployment restrictions contained in paragraph 2(a) above, and (c) you execute and deliver to Company a Separation Agreement and Release in a\nform acceptable to the Company, and you do not revoke the Separation Agreement and Release, the Company will pay you a severance payment\nequal to (i) a pro-rata portion of the bonus, if any, to which you would have otherwise been entitled as of the date of termination, to be paid, less all\napplicable deductions, according to the Company's normal bonus payment schedule (bonuses are generally paid in mid-April after the end of the\nfiscal year); (ii) twelve (12) months of your then-current base salary, to be paid, less all applicable deductions, according to the Company's normal\npayroll practices for a period coextensive with the restricted period (twelve months); and (iii) during the restricted period, reimbursement for out-of-\npocket COBRA payments paid by you to continue your group health benefits, provided you submit relevant supporting documentation to the\nCompany evidencing such payments. Notwithstanding anything herein to the contrary, however, your right to receive the foregoing payments shall\nterminate effective immediately upon the date that you become employed by another entity as an employee, consultant or otherwise, and you agree\nto notify the Senior Vice-President of Human Resources in writing prior to the effective date of any such employment. If you fail to so notify\nthe\nSenior Vice-President of Human Resources, (a) you will forfeit your right to receive the payments described above (to the extent the payments were\nnot theretofore paid) and (b) the Company shall be entitled to recover any payments already made to you or on your behalf.\nFor purposes of this agreement, "Cause" shall mean gross incompetence; failure to comply with the Company's policies including those\ncontained in the Company's Code of Ethics and Business Practices; indictment, conviction or admission of any crime involving dishonesty or moral\nturpitude; participation in any act of misconduct, insubordination or fraud against the Company; use of alcohol or drugs which interferes with your\nperformance of your duties or compromises the integrity or reputation of the Company; and excessive absence from work other than as a result of\ndisability. For purposes of this agreement, "Good Reason" shall mean either of the following: (i) any requirement by the Company that you report\ndirectly to an individual other than an Executive Vice-President or functional equivalent or (ii) any action by the Company that results in a material\nand continuing diminution in your duties or responsibilities, in each case without your consent and provided that the Company will have at least 30\ndays to remedy such situation. No payment will be required if the Company consents in its sole discretion to request by you to waive the post-\ntermination restrictions on your employment contained in paragraph 2(a) herein or if the conditions set forth in this Section 3 are otherwise not met.\n4. Termination With Cause or Resignation of Employment Without Good Reason. If the Company terminates your employment and such\ntermination is for "Cause," as defined above, or if you resign your employment for any reason other than for "Good Reason," as defined above, then\nthe Company shall pay you all wages due through the termination date. In the event of termination for Cause or your resignation other than for Good\nReason, the Company will not pay any severance, and the restrictions contained in paragraph 2(a) above will remain in full force and effect unless\nwaived by the Company.\n5. Term. The term of this agreement shall be three (3) years, beginning on the date signed by you, as set forth below, and terminating on the\nthird anniversary of such date. At the Company's request upon or in advance of the termination of this agreement, you will enter into discussions\nto\nextend the terms of this agreement or negotiate in good faith an agreement of similar effect.\nNotwithstanding the foregoing, in the event that your employment terminates prior to the third anniversary, you shall remain subject to the\npost-termination restrictions contained in Sections 1 and 2 hereof and shall be entitled to the severance payment contained in Section 3 hereof\nprovided that the terms and conditions applicable thereto have been satisfied.\n6.\nInjunctive Relief. You agree that any actual or threatened breach by you of the covenants set forth in paragraphs 1 and 2 of this agreement\nwould result in irreparable harm to the Company for which monetary damages alone would be an insufficient remedy. Thus, although nothing in this\nparagraph will prohibit the Company from pursuing any remedies available to it against you under applicable law (which shall be\ncumulative with those remedies set forth herein), you specifically agree that, in the event of any threatened or actual breach of this agreement by\nyou, the Company shall be entitled to a temporary restraining order and, thereafter, a preliminary and permanent injunction and other equitable relief\nincluding, without limitation, an equitable accounting of earnings, profits, and other benefits, from a court of competent jurisdiction, as well as\nreimbursement from you for any attorneys' fees and other costs incurred by the Company in obtaining such relief. No specification in this agreement\nof any legal or equitable remedy shall be construed as a waiver or prohibition against pursuing any other legal or equitable remedies in the event of\na\nthreatened or actual breach of this agreement by you.\n7. Severability. If any provision of this agreement, or any part thereof, is found to be invalid or unenforceable, the same shall not affect the\nremaining provisions, which shall be given full effect, without regard to the invalid portions. Moreover, if any one or more of the provisions\ncontained in this agreement shall be held to be excessively broad as to duration, scope, activity or subject, such provisions shall be construed by\nlimiting and reducing them so as to be enforceable to the maximum extent with applicable law.\n8. At-Will Employment. This agreement is limited to the foregoing terms and shall not be construed to create any relationship between you\nand the Company other than at-will employment for all purposes. This agreement supersedes all agreements concerning the subject matter hereof.\n9. Governing Law. The terms of this agreement and all rights and obligations of the parties thereto including its enforcement shall be\ninterpreted and governed by the laws of the state of New York.\nAGREED TO AND ACCEPTED:\nSignature:\n/s/ Libby Wadle\nPrint Name:\nLibby Wadle\nLibby Wadle\nDate:\n8/8/06\nSCHEDULE A TO NON-DISCLOSURE,\nNON-SOLICITATION AND NON-COMPETITION AGREEMENT\nUnless waived in writing by the Company, the post-termination restrictions on employment contained in paragraph 2(a) above shall apply to\nemployment with the following entities, as well as their parent and subsidiary companies:\nA&F Brands\nAnn Taylor\nAmerican Eagle OutfitterS Brands\nArmani Exchange\nBarney's\nBrooks Brothers\nCalvin Klein\nChildren's Place\nCoach\nCole Haan\nEddie Bauer\nGap Brands\nGymboree Brands\nLimited Brands\nLucky Brand\nLVMH\nRalph Lauren brands\nTheory\nTommy Hilfiger\nUrban Outfitters\nAny retail apparel start-up operated by one of the above companies	EX-10.22 2 dex1022.htm NON-DISCLOSURE, NON-SOLICITATION AND NON -COMPETITION AGREEMENT\nEXHIBIT 10.22\nNON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION\nIn consideration of your employment (or continued employment) with or provision of services to J. Crew Group, Inc. and its affiliates\n(collectively, the “Company”) and for other good and valuable consideration, receipt of which is hereby acknowledged, you agree as follows:\n1. Agreement Not to Disclose Confidential Information. In the course of your employment with or provision of services to the Company,\nyou have and will have acquired and have had access to confidential or proprietary information about the Company, including but not limited to,\ntrade secrets, methods, models, passwords, access to computer files, financial information and records, computer software programs, agreements\nand/or contracts between the Company and its vendors and suppliers, the Company’s merchandising, marketing and/or creative policies, practices,\nconcepts, strategies, and methods of operations, inventory, pricing and price change strategies, possible new product lines, future merchandise\ndesigns, patterns, fabrication or fit information, internal policies, pricing policies and procedures, cost estimates, employee lists, training manuals,\nfinancial or business projections, unannounced financial data such as sales, earnings or capital requirements, possible mergers, acquisitions or joint\nventures and information about or received from vendors and other companies with which the Company does business. The foregoing shall be\ncollectively referred to as “Confidential Information.” You are aware that the Confidential Information is not readily available to the public. You\nagree that during your employment or provision of services and for a period of three (3) years thereafter, you will keep confidential and not disclose\nthe Confidential Information to anyone or use it for your own benefit or for the benefit of others, except in performing your duties as our employee\nor agent. You agree that this restriction shall apply whether or not any such information is marked “confidential.”\nAll memoranda, disks, files, notes, records or other documents, whether in electronic form or hard copy (collectively, the “material”) compiled\nby you or made available to you during your employment (whether or not the material contains confidential information) are the property of the\nCompany and shall be delivered to the Company on the termination of your employment or at any other time upon request. Except in connection\nwith your employment, you agree that you will not make or retain copies or excerpts of the material.\n2. Agreement Not to Engage in Unfair Competition. You agree that your position with the Company requires and will continue to require\nthe performance of services which are special, unique, extraordinary and of an intellectual and/or artistic character and places you in a position of\nconfidence and trust with the Company. You further acknowledge that the rendering of services to the Company necessarily requires the disclosure\nof confidential information and trade secrets of the Company. You agree that in the course of your employment with or rendering of services to the\nCompany, you will develop a personal acquaintanceship and relationship with the vendors and other business associates of the Company and\nknowledge of their affairs and requirements. Consequently, you agree that it is reasonable and necessary for the protection of the goodwill and\nbusiness of the Company that you make the covenants contained herein. Accordingly, you agree that while you are in the Company’s employ and for\nthe period of twelve months after the termination of your employment, for any reason whatsoever (including “Good Reason,” as defined below), you\nshall not directly or indirectly, except on behalf of the Company:\n(a) render services to or accept employment, either directly as an employee or owner, or indirectly, as a paid or unpaid consultant or\nindependent contractor of any entity identified on Schedule A hereto (as may be updated by the Company and communicated to you from time\nto time); or\n(b) employ as an employee or retain as a consultant any person who is then or at any time during the preceding twelve months was an\nemployee of or consultant to the Company, or persuade or attempt to persuade any employee of or consultant to the Company to leave the\nemploy of the Company or to become employed as an employee or retained as a consultant by anyone other than the Company.\n3. Termination Without Cause or For Good Reason. Should your employment be (a) terminated by the Company without “Cause,” as\ndefined below, or terminated by you for “Good Reason,” as defined below; and (b) the Company does not consent to waive any of the post-\nemployment restrictions contained in paragraph 2(a) above, and (c) you execute and deliver to Company a Separation Agreement and Release in a\nform acceptable to the Company, and you do not revoke the Separation Agreement and Release, the Company will pay you a severance payment\nequal to (i) a pro-rata portion of the bonus, if any, to which you would have otherwise been entitled as of the date of termination, to be paid, less all\napplicable deductions, according to the Company’s normal bonus payment schedule (bonuses are generally paid in mid-April after the end of the\nfiscal year); (ii) twelve (12) months of your then-current base salary, to be paid, less all applicable deductions, according to the Company’s normal\npayroll practices for a period coextensive with the restricted period (twelve months); and (iii) during the restricted period, reimbursement for out-of-\npocket COBRA payments paid by you to continue your group health benefits, provided you submit relevant supporting documentation to the\nCompany evidencing such payments. Notwithstanding anything herein to the contrary, however, your right to receive the foregoing payments shall\nterminate effective immediately upon the date that you become employed by another entity as an employee, consultant or otherwise, and you agree\nto notify the Senior Vice-President of Human Resources in writing prior to the effective date of any such employment. If you fail to so notify the\nSenior Vice-President of Human Resources, (a) you will forfeit your right to receive the payments described above (to the extent the payments were\nnot theretofore paid) and (b) the Company shall be entitled to recover any payments already made to you or on your behalf.\nFor purposes of this agreement, “Cause” shall mean gross incompetence; failure to comply with the Company’s policies including those\ncontained in the Company’s Code of Ethics and Business Practices; indictment, conviction or admission of any crime involving dishonesty or moral\nturpitude; participation in any act of misconduct, insubordination or fraud against the Company; use of alcohol or drugs which interferes with your\nperformance of your duties or compromises the integrity or reputation of the Company; and excessive absence from work other than as a result of\ndisability. For purposes of this agreement, “Good Reason” shall mean either of the following: (i) any requirement by the Company that you report\ndirectly to an individual other than an Executive Vice-President or functional equivalent or (ii) any action by the Company that results in a material\nand continuing diminution in your duties or responsibilities, in each case without your consent and provided that the Company will have at least 30\ndays to remedy such situation. No payment will be required if the Company consents in its sole discretion to request by you to waive the post-\ntermination restrictions on your employment contained in paragraph 2(a) herein or if the conditions set forth in this Section 3 are otherwise not met.\n4. Termination With Cause or Resignation of Employment Without Good Reason. If the Company terminates your employment and such\ntermination is for “Cause,” as defined above, or if you resign your employment for any reason other than for “Good Reason,” as defined above, then\nthe Company shall pay you all wages due through the termination date. In the event of termination for Cause or your resignation other than for Good\nReason, the Company will not pay any severance, and the restrictions contained in paragraph 2(a) above will remain in full force and effect unless\nwaived by the Company.\n5. Term. The term of this agreement shall be three (3) years, beginning on the date signed by you, as set forth below, and terminating on the\nthird anniversary of such date. At the Company’s request upon or in advance of the termination of this agreement, you will enter into discussions to\nextend the terms of this agreement or negotiate in good faith an agreement of similar effect.\nNotwithstanding the foregoing, in the event that your employment terminates prior to the third anniversary, you shall remain subject to the\npost-termination restrictions contained in Sections 1 and 2 hereof and shall be entitled to the severance payment contained in Section 3 hereof\nprovided that the terms and conditions applicable thereto have been satisfied.\n6. Injunctive Relief. You agree that any actual or threatened breach by you of the covenants set forth in paragraphs 1 and 2 of this agreement\nwould result in irreparable harm to the Company for which monetary damages alone would be an insufficient remedy. Thus, although nothing in this\nparagraph will prohibit the Company from pursuing any remedies available to it against you under applicable law (which shall be\ncumulative with those remedies set forth herein), you specifically agree that, in the event of any threatened or actual breach of this agreement by\nyou, the Company shall be entitled to a temporary restraining order and, thereafter, a preliminary and permanent injunction and other equitable relief\nincluding, without limitation, an equitable accounting of earnings, profits, and other benefits, from a court of competent jurisdiction, as well as\nreimbursement from you for any attorneys’ fees and other costs incurred by the Company in obtaining such relief. No specification in this agreement\nof any legal or equitable remedy shall be construed as a waiver or prohibition against pursuing any other legal or equitable remedies in the event of a\nthreatened or actual breach of this agreement by you.\n7. Severability. If any provision of this agreement, or any part thereof, is found to be invalid or unenforceable, the same shall not affect the\nremaining provisions, which shall be given full effect, without regard to the invalid portions. Moreover, if any one or more of the provisions\ncontained in this agreement shall be held to be excessively broad as to duration, scope, activity or subject, such provisions shall be construed by\nlimiting and reducing them so as to be enforceable to the maximum extent with applicable law.\n8. At-Will Employment. This agreement is limited to the foregoing terms and shall not be construed to create any relationship between you\nand the Company other than at-will employment for all purposes. This agreement supersedes all agreements concerning the subject matter hereof.\n9. Governing Law. The terms of this agreement and all rights and obligations of the parties thereto including its enforcement shall be\ninterpreted and governed by the laws of the state of New York.\nAGREED TO AND ACCEPTED:\nSignature:\n/s/ Libby Wadle\nPrint Name:\nLibby Wadle\nLibby Wadle\nDate:\n8/8/06\nSCHEDULE A TO NON-DISCLOSURE,\nNON-SOLICITATION AND NON -COMPETITION AGREEMENT\nUnless waived in writing by the Company, the post-termination restrictions on employment contained in paragraph 2(a) above shall apply to\nemployment with the following entities, as well as their parent and subsidiary companies:\nA&F Brands\nAnn Taylor\nAmerican Eagle Outfitters Brands\nArmani Exchange\nBarney’s\nBrooks Brothers\nCalvin Klein\nChildren’s Place\nCoach\nCole Haan\nEddie Bauer\nGap Brands\nGymboree Brands\nLimited Brands\nLucky Brand\nLVMH\nRalph Lauren brands\nTheory\nTommy Hilfiger\nUrban Outfitters\nAny retail apparel start-up operated by one of the above companies
+c6d4a02258909dfd134093de86f99327.pdf	effective_date jurisdiction party term	EX-99.D.5 9 d96542dex99d5.htm EX-99.D.5\nEXHIBIT (d)(5)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (“Agreement”) is dated as of 31st January, 2014 (the “Effective Date”) and is entered into between\nInSite Vision Incorporation, a Delaware corporation (the “Company”), and SUN PHARMACEUTICAL INDUSTRIES LTD., a company\nregistered and existing in India under the Companies Act, 1956, with its registered office at SPARC, Tandalja, Baroda – 390 020, Gujarat, India\nand its corporate office at Acme Plaza, Andheri – Kuria Road, Andheri – East, Mumbai – 400 059, Maharashtra, India (the “Potential\nRelationship Party”). Each of the Company and the Potential Relationship Party are sometimes referred to herein as a “Party” and together as\nthe “Parties.” In consideration of the mutual covenants contained herein, the Potential Relationship Party and the Company, intending to be\nlegally bound hereby, agree to the following:\nSection 1. Definitions. For purposes of this Agreement:\n(a) “Affiliate” of a specified person means a person who, directly or indirectly through one or more intermediaries, controls, is controlled\nby, or is under common control with, such specified person.\n(b) “Confidential Information” means all information relating, directly or indirectly, to the Disclosing Party or the business, products,\nmarkets, research and development, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of\nthe Disclosing Party, the business of any customer or partner of the Disclosing Party, any information about or concerning any third party (which\ninformation was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party) and any product\nofferings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data,\nschematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies of the\nDisclosing Party (in each case, whether prepared by the Disclosing Party, its Representatives or otherwise) which is delivered, disclosed or\nfurnished by or on behalf of the Disclosing Party to the Receiving Party or to its Representatives, before, on or after the date of this Agreement,\nregardless of the manner in which it is delivered, disclosed or furnished, and will also be deemed to include all notes, analyses, compilations,\nstudies, forecasts, interpretations or other documents prepared by the Receiving Party or its Representatives that contain, reflect or are based\nupon, in whole or in part, the information delivered, disclosed or furnished to the Receiving Party or its Representatives pursuant to this\nAgreement. Notwithstanding any other provision of this Agreement, the term Confidential Information will not include information which:\n(i) is or becomes generally available to the public, through no fault of the Receiving Party or its Representatives; provided, however,\nthat specific aspects or details of Confidential Information will not be deemed to be within the public domain, or in the possession of the\nReceiving Party in accordance with Section (b)(ii), merely because the Confidential Information is embraced by more general information\nin the public domain or in the possession of the Receiving Party. Further, any combination of Confidential Information will not be\nconsidered in the public domain or in the possession of the Receiving Party in accordance with Section (b)(ii) merely because individual\nelements of such Confidential Information are in the public domain or in the possession of the Receiving Party unless the combination and\nits principles are in the public domain or in the possession of the Receiving Party;\n(ii) can be demonstrated by documentation or competent proof to have been in the possession of the Receiving Party before its being\nfurnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the Receiving Party does not know, or have a\nreasonable basis for concluding, that the source of such information was bound by a confidentiality agreement with, or other contractual,\nlegal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with respect to such information;\n(iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or any of its\nRepresentatives, provided that the Receiving Party does not know or have reason to believe that the source is bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party with respect to such\ninformation; or\n(iv) the Disclosing Party agrees in writing is not Confidential Information.\n(c) “Discussion Information” has the meaning provided in Section 3(c).\n(d) “Disclosing Party” means the Party disclosing Confidential Information or on whose behalf Confidential Information is disclosed, in\nany particular circumstance.\n(e) “Exchange Act” means the Securities Exchange Act of 1934 as amended.\n(f) “Receiving Party” means the Party receiving Confidential Information or on whose behalf Confidential Information is received, in any\nparticular circumstance.\n(g) “person” will be broadly interpreted to include individuals, any corporation, partnership, group, individual or other entity and the\nmedia.\n(h) “Possible Transaction” means a possible negotiated business combination between the Parties.\n(i) “Representatives” means (i) with respect to the Potential Relationship Party, the Potential Relationship Party’s officers, managers,\ndirectors, general partners, employees, outside counsel, accountants, consultants, financial advisors, and potential sources of equity or debt\nfinancing (and their respective counsel), and (ii) with respect to the Company, will include its officers, directors, employees, agents, partners and\nadvisors and those of its subsidiaries, Affiliates and/or divisions (including attorneys, accountants, consultants and financial advisors).\n(j) “Standstill Period” means the six months period commencing on the date of this Agreement.\nSection 2. Disclosure of Confidential Information. In connection with the consideration of a Possible Transaction, the Company and the\nPotential Relationship Party may deliver or make available (or prior to the date hereof may have delivered or made available) to the other and its\nRepresentatives certain information concerning its business, financial condition, operations, assets and liabilities. As a condition to such\ninformation being furnished to the Receiving Party and the Receiving Party’s Representatives, the Receiving Party agrees that the Receiving\nParty will, and will cause the Receiving Party’s Representatives to, treat the Confidential Information in accordance with the provisions of this\nAgreement and take or abstain from taking certain other actions as set forth herein. Notwithstanding any other provision of this Agreement,\nneither Party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be\nconstrued as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a\ncommitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation\nnot specified herein; or (d) prohibiting either Party from associating themselves with competitors of the other Party for purposes substantially\nsimilar to those involved herein.\nSection 3. Use and Non-Disclosure of Confidential Information and Discussion Information.\n(a) The Receiving Party hereby agrees that the Receiving Party and the Receiving Party’s Representatives will use Confidential\nInformation of the Disclosing Party solely for the purpose of evaluating and negotiating a Possible Transaction with the Disclosing Party and for\nno other purpose, and that such Confidential Information will not be used in any way detrimental to the Disclosing Party. The Receiving Party\nfurther agrees that it will and will cause its Representatives to take those steps the Receiving Party takes to protect its own similar proprietary and\nconfidential information (which will not be less than a reasonable standard of care) to keep the Confidential Information of the Disclosing Party\nconfidential; provided, however, that (i) the Receiving Party may make any disclosure of the Confidential Information to which the Disclosing\nParty gives its prior written consent\nPage2of11\nand (ii) any of the Confidential Information may be disclosed to the Receiving Party’s Representatives who need to know such information for\nthe purpose of evaluating a Possible Transaction, who are provided with a copy of this Agreement and who agree to be bound by the terms this\nAgreement. The Parties will maintain a list of those Representatives to whom Confidential Information has been disclosed (which list will be\npresented to the Party upon the other Party’s request). In any event, the Receiving Party agrees to undertake reasonable precautions to safeguard\nand protect the confidentiality of the Confidential Information, to accept responsibility for any breach of this Agreement by the Receiving Party\nor any of the Receiving Party’s Representatives, and, at the Receiving Party’s sole expense, to take all reasonable measures (including court\nproceedings) to restrain the Receiving Party and the Receiving Party’s Representatives from prohibited or unauthorized disclosure or uses of the\nConfidential Information.\n(b) Notwithstanding any other provision of this Agreement:\n(i) the Receiving Party or its Representatives may disclose Confidential Information of the Disclosing Party if required in order to\nestablish its rights under this Agreement, but only to the extent such disclosure is necessary and provided that the Receiving Party seeks\nconfidential treatment of the Confidential Information to be disclosed;\n(ii) this Agreement will not prohibit or restrict either Party’s right to develop, make, use, market, license or distribute products or\nservices similar to or competitive with those of the other Party disclosed in the Confidential Information as long as such Party does not\nthereby breach this Agreement. Each Party acknowledges that the other may already possess or have developed products or services similar\nto or competitive with those of the other Party disclosed in the Confidential Information; and\n(iii) either Party will be free to use for any purpose the residuals resulting from access to or work with Confidential Information\ndisclosed hereunder. The term “residuals” means information in non-tangible form which may be retained in the unaided memory by\npersons who have had access to the Confidential Information so long as such persons have not studied the information for the purpose of\nreplicating the same from memory. Neither Party shall have any obligation to limit or restrict the assignment of such persons or to pay\nroyalties for any work resulting from the use of residuals.\n(c) Each Party agrees that, without the prior written consent of the other Party, neither it nor its Representatives will disclose to any other\nperson the fact that the other Party or its Representative have received Confidential Information or that Confidential Information has been made\navailable to the other Party or its Representatives, that investigations, discussions or negotiations are taking place concerning a Possible\nTransaction or any of the terms, conditions or other facts with respect to any Possible Transaction, including the status this Agreement and the\nidentity of the parties hereto (collectively, the “Discussion Information”), provided that the Receiving Party may make such disclosure if required\nby law or the applicable rules of any securities exchange or interdealer quotation system. The Potential Relationship Party further agrees that,\nwithout the prior written consent of the Company (which shall not be unreasonably withheld or denied), the Potential Relationship Party and the\nPotential Relationship Party’s Representatives will not, directly or indirectly, consult or share Confidential Information or Discussion\nInformation with, or enter into any agreement, arrangement or understanding, or any discussions which might lead to any such agreement,\narrangement or understanding, with any co-investor, source of equity financing or other person (other than the Company) regarding a Possible\nTransaction, including discussions or other communications with any prospective bidder for the Company with respect to (i) whether or not the\nReceiving Party or such other prospective bidder will make a bid or offer for the Disclosing Party or (ii) the price that the Receiving Party or\nsuch other bidder may bid or offer for the Disclosing Party.\n(d) To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and\nagree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the\nsharing of such material is not intended to, and will not, waive or diminish in any way the confidentiality of such material or its continued\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a\nParty that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege will remain entitled to\nsuch protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any Party to\nreveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\nPage3of11\nSection 4. Required Actions if Disclosure is Legally Sought or Compelled. In the event that the Receiving Party or any of the Receiving Party’s\nRepresentatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings,\nsubpoena, civil investigative demand or other similar process) to disclose any of the Confidential Information or Discussion Information, the\nReceiving Party will provide the Disclosing Party with prompt written notice of any such request or requirement so that the Disclosing Party may\nin its sole discretion seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in\nthe absence of a protective order or other remedy or the receipt of a waiver by the Disclosing Party, the Receiving Party or any of the Receiving\nParty’s Representatives are nonetheless, in the written opinion of outside legal counsel, legally compelled to disclose Confidential Information or\nDiscussion Information to any tribunal, the Receiving Party or the Receiving Party’s Representatives may, without liability hereunder, disclose to\nsuch tribunal only that portion of the Confidential Information or Discussion Information which such counsel advises the Receiving Party is\nlegally required to be disclosed, provided that the Receiving Party will use the Receiving Party’s reasonable best efforts to preserve the\nconfidentiality of the Confidential Information and the Discussion Information, including by cooperating with the Disclosing Party to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information and the\nDiscussion Information by such tribunal; and provided further that the Receiving Party will promptly notify the Disclosing Party of (i) the\nReceiving Party’s determination to make such disclosure and (ii) the nature, scope and contents of such disclosure.\nSection 5. Return and Destruction of Confidential Information. In the event that the Receiving Party decides not to proceed with a Possible\nTransaction, the Receiving Party will promptly inform the Disclosing Party of that decision. In that case, or at any time upon the request of the\nDisclosing Party in its sole discretion and for any reason, the Receiving Party will as directed by the Disclosing Party promptly deliver, at the\nReceiving Party’s expense, to the Disclosing Party or destroy all Confidential Information furnished to the Receiving Party or the Receiving\nParty’s Representatives by or on behalf of the Disclosing Party pursuant hereto. In the event of such a decision or request, all other Confidential\nInformation prepared by the Receiving Party or on the Receiving Party’s behalf will be returned or destroyed and, upon the Disclosing Party’s\nrequest, the Receiving Party will provide the Disclosing Party with prompt written confirmation of the Receiving Party’s compliance with this\nparagraph; provided, however, that\n(a) if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material will not be destroyed until the\nproceeding is settled or a final judgment with respect thereto has been rendered;\n(b) the Receiving Party will not, in connection with the foregoing obligations, be required to identify or delete Confidential Information\nheld electronically in archive or back-up systems in accordance with general systems archiving or backup policies and further provided that the\nReceiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential\nInformation so archived or backed-up;\n(c) the Receiving Party will not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the\nReceiving Party is required to retain a copy pursuant to applicable law; and\n(d) one copy of all Confidential Information may be kept by the Receiving Party’s outside counsel, if any, and such Confidential\nInformation shall be fully protected by attorney-client privilege.\nNotwithstanding the return, destruction or continued possession pursuant to the terms of this Section 5 of the Confidential Information, the\nReceiving Party and the Receiving Party’s Representatives will continue to be bound by the Receiving Party’s obligations of confidentiality and\nother obligations and agreements hereunder.\nSection 6. No Agreement. Each Patty understands and agrees that no contract or agreement providing for any Possible Transaction will be\ndeemed to exist between the Parties unless and until a final definitive agreement has been executed and delivered, and each Party hereby waives,\nin advance, any claims (including breach of\nPage4of11\ncontract) in connection with any Possible Transaction unless and until the Parties will have entered into a final definitive agreement. The Parties\nalso agree that unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will\nbe under any legal obligation of any kind whatsoever with respect to such a Possible Transaction by virtue of this Agreement, except for the\nmatters specifically agreed to herein. The Company further reserves the right, in its sole discretion, with due notice to reject any and all proposals\nmade by the Potential Relationship Party or any of its Representatives with regard to a Possible Transaction to determine not to engage in\ndiscussions or negotiations and to terminate discussions and negotiations with the Potential Relationship Party at any time, and to conduct,\ndirectly or through any of its Representatives, any process for any transaction involving the Company or any of its subsidiaries, if and as they in\ntheir sole discretion determine (including negotiating with any other interested parties and entering into a definitive agreement without prior\nnotice to the Potential Relationship Party or any other person).\nSection 7. Representations and Warranties. Each Party represents and warrants to the other Party that it has the right to enter into this\nAgreement and that this Agreement is a valid and binding obligation of such Party relating to the matters herein. Each Party further represents\nand warrants that the terms of this Agreement are not inconsistent with other contractual obligations, express or implied, which such Party may\nhave or any law applicable to such Party or its business. The Receiving Party understands, acknowledges and agrees that neither the Disclosing\nParty nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the\nConfidential Information by virtue of this Agreement. The Receiving Party agrees that neither the Disclosing Party nor any of its Representatives\nwill have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of the\nConfidential Information or any errors therein or omissions therefrom.\nSection 8. Material Non-Public Information. The Receiving Party acknowledges and agrees that the Receiving Party is aware (and that the\nReceiving Party’s Representatives are aware or, upon receipt of any Confidential Information or Discussion Information, will be advised by the\nReceiving Party) that (a) the Confidential Information being furnished to the Receiving Party or the Receiving Party’s Representatives contains\nmaterial, non-public information regarding the Disclosing Party and (b) the United States and other non-U.S . securities laws prohibit any persons\nwho have material, nonpublic information concerning the matters which are the subject of this Agreement, including the Discussion Information,\nfrom purchasing or selling securities of a company which may be a party to a transaction of the type contemplated by this Agreement or from\ncommunicating such information to any person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or\nsell such securities in reliance upon such information.\nSection 9. No Solicitation. In consideration of the Confidential Information being furnished hereunder, each Party agrees that, for a period of\nsix months from the date of this Agreement, such Party will not, directly or indirectly, solicit for employment with such Party or any of its\nAffiliates, any of the officers or employees of the other Party or its Affiliates (a) with whom such Party has had contact during the evaluation of a\nPossible Transaction or (b) who were identified by name and function to such Party by an officer or employee of the other Party with whom such\nParty or its Representatives had contact during the evaluation of a Possible Transaction. For the avoidance of doubt, employees whose names are\nprovided by the other Party in response to a request made by such Party or its Representatives during the evaluation of a Possible Transaction are\ncovered by this non-solicitation obligation. Notwithstanding the foregoing, nothing herein shall restrict or preclude either Party from (i) making\ngeneralized searches for employees (by use of advertisements in the media, the engagement of search firms or otherwise), (ii) continuing its\nordinary course hiring practices that are not targeted specifically at employees of the other Party, (iii) hiring an employee of the other Party who\nfirst initiates an employment discussion with such Party, in each case, so long as such Party has not violated the restrictions on solicitation\ncontained in this Agreement or (iv) if the employee is no more on the rolls of the Party.\nPage5of11\nSection 10. Standstill.\n(a) As of the date of this Agreement, neither the Potential Relationship Party nor any of the Potential Relationship Party’s Representatives\nacting on the Potential Relationship Party’s behalf, or any person with whom any of the foregoing may be deemed to be acting in concert with\nrespect to the Company or its securities, owns any securities of the Company to the best of their knowledge, information and belief and shall not\nown more than 5% during the tenure of this Agreement. The Potential Relationship Party agrees that during the Standstill Period, unless\nspecifically invited in writing by the Company, neither the Potential Relationship Party nor any of the Potential Relationship Party’s Affiliates,\nsubsidiaries or Representatives acting on the Potential Relationship Party’s behalf or on behalf of other persons acting in concert with the\nPotential Relationship Party will in any manner, directly or indirectly:\n(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate\nin or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect\nor participate in: (i) any acquisition of any securities (or beneficial ownership thereof), or rights or options to acquire any securities (or\nbeneficial ownership thereof), or any assets, indebtedness or businesses of the Company or any of its subsidiaries or Affiliates; (ii) any\ntender or exchange offer, merger or other business combination involving the Company, any of the subsidiaries or Affiliates or assets of the\nCompany or its subsidiaries or its Affiliates constituting a significant portion of the consolidated assets of the Company and its subsidiaries\nor Affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company\nor any of its subsidiaries or Affiliates,\n(ii) make, or in any way participate in, directly or indirectly, (i) any “solicitation” of “proxies” (as such terms are used in the rules of\nthe Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of any\nvoting securities of the Company or (ii) any demand for a copy of the Company’s stock ledger, list of stockholders or any other books and\nrecords of the Company;\n(iii) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to the Company or otherwise\nact in concert with any person in respect of any such securities;\n(iv) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board of\nDirectors or policies of the Company or to obtain representation on the Board of Directors of the Company;\n(v) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding\nany of the types of matters set forth in (i) above; or\n(vi) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\n(b) Notwithstanding the foregoing, the provisions of ARTICLE I Section 10(a), the Potential Relationship Party or any of the Potential\nRelationship Party’s Affiliates, subsidiaries or Representatives acting on the Potential Relationship Party’s behalf may at any time and from time\nto time submit to the Board of Directors of the Company one or more offers, proposals or indications of interest related to a Possible Transaction\nthat would otherwise be prohibited by ARTICLE I Section 10(a), provided that each such submission is made on a confidential basis, does not\nstate an intention to make a public announcement related to the text or contents of such submission or discussion and is made in a manner that\ncould not reasonably be expected to cause the Company to need to make public disclosure thereof.\n(c) The Potential Relationship Party also agrees during the Standstill Period not to request that the Company or any of its Representatives,\ndirectly or indirectly, amend or waive any provision of this ARTICLE I Section 10.\n(d) The Potential Relationship Party agrees that, if at any time during the Standstill Period, the Potential Relationship Party or any of the\nPotential Relationship Party’s Affiliates or subsidiaries or Representatives acting on the Potential Relationship Party’s behalf are approached by\nany third party concerning the Potential Relationship Party’s or their participation in a transaction involving any assets, indebtedness or business\nof, or securities issued by, the Company or any of its subsidiaries, the Potential Relationship Party will promptly inform the Company of the\nnature of such transaction and the parties involved.\nPage6of11\n(e) The banks approached by the Potential Relationship Party for the purpose of financing would be subject to confidentiality obligations as\nset forth in said Section 3, without, however, requiring such recipient bank, or its representatives, to make the Standstill undertakings stipulated\nin the current Section 10 of the Agreement.\n(f) The non-solicitation and stand-still obligations under Sections 9 and 10 will cease to apply on completion of the transaction.\nSection 11. Miscellaneous.\n(a) Notices. All notices, requests, claims, demands and other communications hereunder will be given in writing and will be deemed given\nand effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile or e-mail of a .pdf, .tif, .gif,\n.jpeg or similar electronic attachment at the facsimile number or email address, respectively, specified for the relevant receiving Party before 5:30\np.m. (in the time zone of the receiving Party) on a business day (in the time zone of the receiving Party), (ii) the next business day after the date\nof transmission, if such notice or communication is delivered via facsimile or e-mail of a .pdf, .tif, .gif, .jpeg or similar electronic attachment at\nthe facsimile number or email address, respectively, specified for the relevant receiving Party on a day that is not a business day or later than 5:30\np.m. on any business day (in each case, in the time zone of the receiving Party), (iii) one business day following the date of deposit with a\nnationally recognized overnight courier service for delivery on the following business day, or (iv) upon actual receipt by the party to whom such\nnotice is required to be given, but if delivery is not accepted, then on the date delivery is refused. The addresses, facsimile numbers and email\naddresses for such notices and communications are those set forth below, or such other address, facsimile number or email address as may be\ndesignated in writing after the Effective Date, in the same manner, by any such person:\nif to the Potential Relationship Party:\nSUN PHARMACEUTICAL INDUSTRIES LTD\nAcme Plaza, Andheri – Kurla Road,\nAndheri – East, Mumbai – 400 059,\nMaharashtra, India\nAttention: Mr. Ashok I. Bhuta\nFacsimile: +91 22 6184 8686\nEmail: Ashok.Bhuta@sunpharma.com\nwith a copy (which will not constitute notice) to:\nS. H. Bathiya & Associates\n2, Tardeo AC Market,\n4th Floor, Tardeo Road,\nMumbai – 400 034\nAttention: Shailesh H. Bathiya\nFacsimile: +91 22 4355 8080\nEmail: shb@shbathiya.com\nif to the Company:\nInSite Vision Incorporation\n965 Atlantic Ave.\nAlameda, CA 94501\nAttention: Timothy Ruane\nFacsimile: (510) 865-5700\nEmail: TRuane@insite.com\nPage7of11\nwith a copy (which will not constitute notice) to:\nJones Day\n1755 Embarcadero Road\nPalo Alto, CA 94303\nAttention: Timothy Curry & Jonn Beeson\nFacsimile: 1-650-739-3900\nEmail: tcurry@jonesday.com & jbeeson@jonesday.com\n(b) Severability. If any provision of this Agreement is found to violate any statute, regulation, rule, order or decree of any governmental\nauthority, court, agency or exchange, such invalidity will not be deemed to affect any other provision of this Agreement or the validity of the\nremainder of this Agreement, and such invalid provision will be replaced with a valid provision that as closely as possible reflects the Parties’\nintent with respect to such invalid provision.\n(c) Entire Agreement. This Agreement contains the entire agreement between the Parties regarding its subject matter and supersedes all\nprior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter, provided that any\nconfidentiality or non-disclosure existing between the parties prior to the date of this Agreement will continue to apply to disclosures made prior\nto the date of this Agreement.\n(d) Successors. This Agreement will inure to the benefit of, and be enforceable by, the Parties and each of their successors and assigns.\n(e) Remedies. It is understood and agreed that money damages would not be an adequate remedy for any breach of this Agreement by a\nParty or any of its Representatives and that a Party will be entitled to equitable relief, including injunction and specific performance, as a remedy\nfor any such breach by the other Party. Such remedies will not be deemed to be the exclusive remedies for a breach of this Agreement but will be\nin addition to all other remedies available at law or in equity. Each Party further agrees not to raise as a defense or objection to the request or\ngranting of such relief that any breach of this Agreement is or would be compensable by an award of money damages, and the Parties agree to\nwaive any requirements for the securing or posting of any bond in connection with such remedy. In the event of litigation relating to this\nAgreement, if a court of competent jurisdiction determines (in a judgment not subject to further appeal or for which the time for appeal has\nexpired), that a Party or any of its Representatives has breached this Agreement, then such Party will be liable and pay to the other Party the\nreasonable legal fees incurred by the other Party in connection with such litigation, including any appeal therefrom. If such court determines (in a\njudgment not subject to further appeal or for which the time for appeal has expired) that neither Party or its Representatives has breached this\nAgreement, then each Party will pay their own legal fees incurred in connection with such litigation and any appeal therefrom.\n(f) Third Party Beneficiaries. Each Party agrees that nothing herein expressed or implied is intended to confer upon or give any rights or\nremedies to any other person under or by reason of this Agreement.\n(g) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware applicable to\nagreements made and to be performed entirely within the State of Delaware, without regard to the conflict of law provisions that would result in\nthe application of the laws of any other jurisdiction.\n(h) Forum. Each Party irrevocably and unconditionally submits to the exclusive personal jurisdiction of the chancery courts of the State of\nDelaware or, if the chancery courts of the State of Delaware lack jurisdiction, any federal court located in the State of Delaware (and, in each\ncase, any appellate court from any thereof), for any actions, suits or proceedings arising out of or relating to this Agreement (and each Party\nagrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process,\nsummons, notice or document by U.S. registered mail to such Party’s address set forth above will be effective service of process for any action,\nsuit or proceeding brought against such Party in any such court). Each Party irrevocably and unconditionally waives any objection that such\nParty may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of this Agreement in the chancery courts of\nthe State of\nPage8of11\nDelaware or, if the chancery courts of the State of Delaware lack jurisdiction, any Federal court located in the State of Delaware (and, in each\ncase, any appellate court from any thereof), and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court\nthat any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n(i) Waiver of Jury Trial. EACH OF THE PARTIES WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY\nRIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,\nUNDER OR IN CONNECTION WITH THIS AGREEMENT. Each of the Parties (A) certifies that no representative, agent or attorney of the\nother Party has represented, expressly or otherwise, that the other Party would not, in the event of litigation, seek to enforce the foregoing waiver\nand (B) acknowledges that it has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this\nARTICLE I Section 11(i).\n(j) Counterparts. This Agreement may be executed and delivered (including by facsimile transmission or by e-mail of a .pdf, .tif, .jpeg or\nsimilar attachment in two or more counterparts, and by the different Parties in separate counterparts, each of which when executed and delivered\nwill be deemed to be an original but all of which taken together will constitute one and the same agreement. Any such counterpart, to the extent\ndelivered using facsimile transmission or by e-mail of a .pdf, .tif, .jpeg or similar attachment will be treated in all manner and respects as an\noriginal executed counterpart and will be considered to have the same binding legal effect as if it were the original signed version thereof\ndelivered in person.\n(k) No Waiver of Rights. No failure or delay by either Party in exercising any right, power or privilege under this Agreement will operate\nas a waiver, nor will any single or partial exercise under this Agreement preclude any other or further exercise under this Agreement or the\nexercise of any other right, power or privilege hereunder.\n(l) No Modification. No provision in this Agreement can be waived, modified or amended except by written consent of the Party against\nwhom enforcement is sought, which consent will specifically refer to the provision to be waived, modified or amended and will explicitly make\nsuch waiver, modification or amendment.\n(m) Inquiries. All inquiries for information about the Company and its subsidiaries and communications with the Company will be made\nthrough [\n] or through an employee or person who has contacted the Potential Relationship Party for and on behalf of the Company.\nNeither the Potential Relationship Party nor any of its Representatives will contact any third party with whom the Company or any of its\nsubsidiaries has a business or other relationship (including any director, officer, employee, customer, supplier, stockholder or creditor of the\nCompany or any of its subsidiaries) in connection with a Possible Transaction without the Company’s prior written consent unless such person\nhas contacted the Potential Relationship Party for and on behalf of the Company.\n(n) Term. This Agreement and all obligations will terminate three years from the date of this Agreement.\n(o) General Interpretation. Each of the Parties has been represented by independent counsel of its choice throughout all negotiations that\nhave preceded the execution of this Agreement, and each has executed this Agreement with the advice of said independent counsel. Each Party\nand its counsel participated in the preparation of this Agreement, and any and all drafts of this Agreement exchanged among the Parties will be\ndeemed the work product of all of the Parties and may not be construed against any Party by reason of its drafting or preparation. Each of the\nParties waives the application of any law or rule of construction providing that ambiguities in an agreement or other document will be construed\nagainst the party drafting such agreement or document. In this Agreement, except to the extent otherwise provided or that the context otherwise\nrequires:\n(i) the headings in this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this\nAgreement;\nPage9of11\n(ii) whenever the words “include,” “includes” or “including” are used in this Agreement, they are deemed to be followed by the\nwords “without limitation;”\n(iii) the use of “or” is not intended to be exclusive, unless expressly indicated otherwise; and\n(iv) words importing the singular include the plural and vice versa and words importing gender include all genders.\n[Remainder of Page Intentionally Left Blank — Signature Page Follows]\nPage 10 of 11\nINSITE VISION INCORPORATION\nBy: /s/ Lyle Bowman\nName: Lyle Bowman\nTitle: Vice President\nSUN PHARMACEUTICAL INDUSTRIES LTD\nBy: /s/ Uday Baldota\nName: Uday Baldota\nTitle: Senior Vice President	EX-99.D.5 9 d96542dex99d5.htm EX-99.D.5\nEXHIBIT (d)(5)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (“Agreement”) is dated as of 31st January, 2014 (the “Effective Date”) and is entered into between\nInSite Vision Incorporation, a Delaware corporation (the “Company”), and SUN PHARMACEUTICAL INDUSTRIES LTD., a company\nregistered and existing in India under the Companies Act, 1956, with its registered office at SPARC, Tandalja, Baroda — 390 020, Gujarat, India\nand its corporate office at Acme Plaza, Andheri — Kuria Road, Andheri — East, Mumbai — 400 059, Maharashtra, India (the “Potential\nRelationship Party”). Each of the Company and the Potential Relationship Party are sometimes referred to herein as a “Party” and together as\nthe “Parties.” In consideration of the mutual covenants contained herein, the Potential Relationship Party and the Company, intending to be\nlegally bound hereby, agree to the following:\nSection 1. Definitions. For purposes of this Agreement:\n(a) “Affiliate” of a specified person means a person who, directly or indirectly through one or more intermediaries, controls, is controlled\nby, or is under common control with, such specified person.\n(b) “Confidential Information” means all information relating, directly or indirectly, to the Disclosing Party or the business, products,\nmarkets, research and development, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of\nthe Disclosing Party, the business of any customer or partner of the Disclosing Party, any information about or concerning any third party (which\ninformation was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party) and any product\nofferings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data,\nschematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies of the\nDisclosing Party (in each case, whether prepared by the Disclosing Party, its Representatives or otherwise) which is delivered, disclosed or\nfurnished by or on behalf of the Disclosing Party to the Receiving Party or to its Representatives, before, on or after the date of this Agreement,\nregardless of the manner in which it is delivered, disclosed or furnished, and will also be deemed to include all notes, analyses, compilations,\nstudies, forecasts, interpretations or other documents prepared by the Receiving Party or its Representatives that contain, reflect or are based\nupon, in whole or in part, the information delivered, disclosed or furnished to the Receiving Party or its Representatives pursuant to this\nAgreement. Notwithstanding any other provision of this Agreement, the term Confidential Information will not include information which:\n(i) is or becomes generally available to the public, through no fault of the Receiving Party or its Representatives; provided, however,\nthat specific aspects or details of Confidential Information will not be deemed to be within the public domain, or in the possession of the\nReceiving Party in accordance with Section (b)(ii), merely because the Confidential Information is embraced by more general information\nin the public domain or in the possession of the Receiving Party. Further, any combination of Confidential Information will not be\nconsidered in the public domain or in the possession of the Receiving Party in accordance with Section (b)(ii) merely because individual\nelements of such Confidential Information are in the public domain or in the possession of the Receiving Party unless the combination and\nits principles are in the public domain or in the possession of the Receiving Party;\n(ii) can be demonstrated by documentation or competent proof to have been in the possession of the Receiving Party before its being\nfurnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the Receiving Party does not know, or have a\nreasonable basis for concluding, that the source of such information was bound by a confidentiality agreement with, or other contractual,\nlegal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with respect to such information;\n(iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or any of its\nRepresentatives, provided that the Receiving Party does not know or have reason to believe that the source is bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party with respect to such\ninformation; or\n(iv) the Disclosing Party agrees in writing is not Confidential Information.\n(c) “Discussion Information” has the meaning provided in Section 3(c).\n(d) “Disclosing Party” means the Party disclosing Confidential Information or on whose behalf Confidential Information is disclosed, in\nany particular circumstance.\n(e) “Exchange Act” means the Securities Exchange Act of 1934 as amended.\n() “Receiving Party” means the Party receiving Confidential Information or on whose behalf Confidential Information is received, in any\nparticular circumstance.\n(g) “person” will be broadly interpreted to include individuals, any corporation, partnership, group, individual or other entity and the\nmedia.\n(h) “Possible Transaction” means a possible negotiated business combination between the Parties.\n(i) “Representatives” means (i) with respect to the Potential Relationship Party, the Potential Relationship Party’s officers, managers,\ndirectors, general partners, employees, outside counsel, accountants, consultants, financial advisors, and potential sources of equity or debt\nfinancing (and their respective counsel), and (ii) with respect to the Company, will include its officers, directors, employees, agents, partners and\nadvisors and those of its subsidiaries, Affiliates and/or divisions (including attorneys, accountants, consultants and financial advisors).\n(j) “Standstill Period” means the six months period commencing on the date of this Agreement.\nSection 2. Disclosure of Confidential Information. In connection with the consideration of a Possible Transaction, the Company and the\nPotential Relationship Party may deliver or make available (or prior to the date hereof may have delivered or made available) to the other and its\nRepresentatives certain information concerning its business, financial condition, operations, assets and liabilities. As a condition to such\ninformation being furnished to the Receiving Party and the Receiving Party’s Representatives, the Receiving Party agrees that the Receiving\nParty will, and will cause the Receiving Party’s Representatives to, treat the Confidential Information in accordance with the provisions of this\nAgreement and take or abstain from taking certain other actions as set forth herein. Notwithstanding any other provision of this Agreement,\nneither Party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be\nconstrued as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a\ncommitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation\nnot specified herein; or (d) prohibiting either Party from associating themselves with competitors of the other Party for purposes substantially\nsimilar to those involved herein.\nSection 3. Use and Non-Disclosure of Confidential Information and Discussion Information.\n(a) The Receiving Party hereby agrees that the Receiving Party and the Receiving Party’s Representatives will use Confidential\nInformation of the Disclosing Party solely for the purpose of evaluating and negotiating a Possible Transaction with the Disclosing Party and for\nno other purpose, and that such Confidential Information will not be used in any way detrimental to the Disclosing Party. The Receiving Party\nfurther agrees that it will and will cause its Representatives to take those steps the Receiving Party takes to protect its own similar proprietary and\nconfidential information (which will not be less than a reasonable standard of care) to keep the Confidential Information of the Disclosing Party\nconfidential; provided, however, that (i) the Receiving Party may make any disclosure of the Confidential Information to which the Disclosing\nParty gives its prior written consent\nPage 2 of 11\nand (ii) any of the Confidential Information may be disclosed to the Receiving Party’s Representatives who need to know such information for\nthe purpose of evaluating a Possible Transaction, who are provided with a copy of this Agreement and who agree to be bound by the terms this\nAgreement. The Parties will maintain a list of those Representatives to whom Confidential Information has been disclosed (which list will be\npresented to the Party upon the other Party’s request). In any event, the Receiving Party agrees to undertake reasonable precautions to safeguard\nand protect the confidentiality of the Confidential Information, to accept responsibility for any breach of this Agreement by the Receiving Party\nor any of the Receiving Party’s Representatives, and, at the Receiving Party’s sole expense, to take all reasonable measures (including court\nproceedings) to restrain the Receiving Party and the Receiving Party’s Representatives from prohibited or unauthorized disclosure or uses of the\nConfidential Information.\n(b) Notwithstanding any other provision of this Agreement:\n(i) the Receiving Party or its Representatives may disclose Confidential Information of the Disclosing Party if required in order to\nestablish its rights under this Agreement, but only to the extent such disclosure is necessary and provided that the Receiving Party seeks\nconfidential treatment of the Confidential Information to be disclosed;\n(ii) this Agreement will not prohibit or restrict either Party’s right to develop, make, use, market, license or distribute products or\nservices similar to or competitive with those of the other Party disclosed in the Confidential Information as long as such Party does not\nthereby breach this Agreement. Each Party acknowledges that the other may already possess or have developed products or services similar\nto or competitive with those of the other Party disclosed in the Confidential Information; and\n(iii) either Party will be free to use for any purpose the residuals resulting from access to or work with Confidential Information\ndisclosed hereunder. The term “residuals” means information in non-tangible form which may be retained in the unaided memory by\npersons who have had access to the Confidential Information so long as such persons have not studied the information for the purpose of\nreplicating the same from memory. Neither Party shall have any obligation to limit or restrict the assignment of such persons or to pay\nroyalties for any work resulting from the use of residuals.\n(c) Each Party agrees that, without the prior written consent of the other Party, neither it nor its Representatives will disclose to any other\nperson the fact that the other Party or its Representative have received Confidential Information or that Confidential Information has been made\navailable to the other Party or its Representatives, that investigations, discussions or negotiations are taking place concerning a Possible\nTransaction or any of the terms, conditions or other facts with respect to any Possible Transaction, including the status this Agreement and the\nidentity of the parties hereto (collectively, the “Discussion Information”), provided that the Receiving Party may make such disclosure if required\nby law or the applicable rules of any securities exchange or interdealer quotation system. The Potential Relationship Party further agrees that,\nwithout the prior written consent of the Company (which shall not be unreasonably withheld or denied), the Potential Relationship Party and the\nPotential Relationship Party’s Representatives will not, directly or indirectly, consult or share Confidential Information or Discussion\nInformation with, or enter into any agreement, arrangement or understanding, or any discussions which might lead to any such agreement,\narrangement or understanding, with any co-investor, source of equity financing or other person (other than the Company) regarding a Possible\nTransaction, including discussions or other communications with any prospective bidder for the Company with respect to (i) whether or not the\nReceiving Party or such other prospective bidder will make a bid or offer for the Disclosing Party or (ii) the price that the Receiving Party or\nsuch other bidder may bid or offer for the Disclosing Party.\n(d) To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and\nagree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the\nsharing of such material is not intended to, and will not, waive or diminish in any way the confidentiality of such material or its continued\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a\nParty that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege will remain entitled to\nsuch protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any Party to\nreveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\nPage 3 of 11\nSection 4. Required Actions if Disclosure is Legally Sought or Compelled. In the event that the Receiving Party or any of the Receiving Party’s\nRepresentatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings,\nsubpoena, civil investigative demand or other similar process) to disclose any of the Confidential Information or Discussion Information, the\nReceiving Party will provide the Disclosing Party with prompt written notice of any such request or requirement so that the Disclosing Party may\nin its sole discretion seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in\nthe absence of a protective order or other remedy or the receipt of a waiver by the Disclosing Party, the Receiving Party or any of the Receiving\nParty’s Representatives are nonetheless, in the written opinion of outside legal counsel, legally compelled to disclose Confidential Information or\nDiscussion Information to any tribunal, the Receiving Party or the Receiving Party’s Representatives may, without liability hereunder, disclose to\nsuch tribunal only that portion of the Confidential Information or Discussion Information which such counsel advises the Receiving Party is\nlegally required to be disclosed, provided that the Receiving Party will use the Receiving Party’s reasonable best efforts to preserve the\nconfidentiality of the Confidential Information and the Discussion Information, including by cooperating with the Disclosing Party to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information and the\nDiscussion Information by such tribunal; and provided further that the Receiving Party will promptly notify the Disclosing Party of (i) the\nReceiving Party’s determination to make such disclosure and (ii) the nature, scope and contents of such disclosure.\nSection 5. Return and Destruction of Confidential Information. In the event that the Receiving Party decides not to proceed with a Possible\nTransaction, the Receiving Party will promptly inform the Disclosing Party of that decision. In that case, or at any time upon the request of the\nDisclosing Party in its sole discretion and for any reason, the Receiving Party will as directed by the Disclosing Party promptly deliver, at the\nReceiving Party’s expense, to the Disclosing Party or destroy all Confidential Information furnished to the Receiving Party or the Receiving\nParty’s Representatives by or on behalf of the Disclosing Party pursuant hereto. In the event of such a decision or request, all other Confidential\nInformation prepared by the Receiving Party or on the Receiving Party’s behalf will be returned or destroyed and, upon the Disclosing Party’s\nrequest, the Receiving Party will provide the Disclosing Party with prompt written confirmation of the Receiving Party’s compliance with this\nparagraph; provided, however, that\n(a) if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material will not be destroyed until the\nproceeding is settled or a final judgment with respect thereto has been rendered;\n(b) the Receiving Party will not, in connection with the foregoing obligations, be required to identify or delete Confidential Information\nheld electronically in archive or back-up systems in accordance with general systems archiving or backup policies and further provided that the\nReceiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential\nInformation so archived or backed-up;\n(c) the Receiving Party will not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the\nReceiving Party is required to retain a copy pursuant to applicable law; and\n(d) one copy of all Confidential Information may be kept by the Receiving Party’s outside counsel, if any, and such Confidential\nInformation shall be fully protected by attorney-client privilege.\nNotwithstanding the return, destruction or continued possession pursuant to the terms of this Section 5 of the Confidential Information, the\nReceiving Party and the Receiving Party’s Representatives will continue to be bound by the Receiving Party’s obligations of confidentiality and\nother obligations and agreements hereunder.\nSection 6. No Agreement. Each Patty understands and agrees that no contract or agreement providing for any Possible Transaction will be\ndeemed to exist between the Parties unless and until a final definitive agreement has been executed and delivered, and each Party hereby waives,\nin advance, any claims (including breach of\nPage 4 of 11\ncontract) in connection with any Possible Transaction unless and until the Parties will have entered into a final definitive agreement. The Parties\nalso agree that unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will\nbe under any legal obligation of any kind whatsoever with respect to such a Possible Transaction by virtue of this Agreement, except for the\nmatters specifically agreed to herein. The Company further reserves the right, in its sole discretion, with due notice to reject any and all proposals\nmade by the Potential Relationship Party or any of its Representatives with regard to a Possible Transaction to determine not to engage in\ndiscussions or negotiations and to terminate discussions and negotiations with the Potential Relationship Party at any time, and to conduct,\ndirectly or through any of its Representatives, any process for any transaction involving the Company or any of its subsidiaries, if and as they in\ntheir sole discretion determine (including negotiating with any other interested parties and entering into a definitive agreement without prior\nnotice to the Potential Relationship Party or any other person).\nSection 7. Representations and Warranties. Each Party represents and warrants to the other Party that it has the right to enter into this\nAgreement and that this Agreement is a valid and binding obligation of such Party relating to the matters herein. Each Party further represents\nand warrants that the terms of this Agreement are not inconsistent with other contractual obligations, express or implied, which such Party may\nhave or any law applicable to such Party or its business. The Receiving Party understands, acknowledges and agrees that neither the Disclosing\nParty nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the\nConfidential Information by virtue of this Agreement. The Receiving Party agrees that neither the Disclosing Party nor any of its Representatives\nwill have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of the\nConfidential Information or any errors therein or omissions therefrom.\nSection 8. Material Non-Public Information. The Receiving Party acknowledges and agrees that the Receiving Party is aware (and that the\nReceiving Party’s Representatives are aware or, upon receipt of any Confidential Information or Discussion Information, will be advised by the\nReceiving Party) that (a) the Confidential Information being furnished to the Receiving Party or the Receiving Party’s Representatives contains\nmaterial, non-public information regarding the Disclosing Party and (b) the United States and other non-U.S. securities laws prohibit any persons\nwho have material, nonpublic information concerning the matters which are the subject of this Agreement, including the Discussion Information,\nfrom purchasing or selling securities of a company which may be a party to a transaction of the type contemplated by this Agreement or from\ncommunicating such information to any person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or\nsell such securities in reliance upon such information.\nSection 9. No Solicitation. In consideration of the Confidential Information being furnished hereunder, each Party agrees that, for a period of\nsix months from the date of this Agreement, such Party will not, directly or indirectly, solicit for employment with such Party or any of its\nAffiliates, any of the officers or employees of the other Party or its Affiliates (a) with whom such Party has had contact during the evaluation of a\nPossible Transaction or (b) who were identified by name and function to such Party by an officer or employee of the other Party with whom such\nParty or its Representatives had contact during the evaluation of a Possible Transaction. For the avoidance of doubt, employees whose names are\nprovided by the other Party in response to a request made by such Party or its Representatives during the evaluation of a Possible Transaction are\ncovered by this non-solicitation obligation. Notwithstanding the foregoing, nothing herein shall restrict or preclude either Party from (i) making\ngeneralized searches for employees (by use of advertisements in the media, the engagement of search firms or otherwise), (ii) continuing its\nordinary course hiring practices that are not targeted specifically at employees of the other Party, (iii) hiring an employee of the other Party who\nfirst initiates an employment discussion with such Party, in each case, so long as such Party has not violated the restrictions on solicitation\ncontained in this Agreement or (iv) if the employee is no more on the rolls of the Party.\nPage 5 of 11\nSection 10. Standstill.\n(a) As of the date of this Agreement, neither the Potential Relationship Party nor any of the Potential Relationship Party’s Representatives\nacting on the Potential Relationship Party’s behalf, or any person with whom any of the foregoing may be deemed to be acting in concert with\nrespect to the Company or its securities, owns any securities of the Company to the best of their knowledge, information and belief and shall not\nown more than 5% during the tenure of this Agreement. The Potential Relationship Party agrees that during the Standstill Period, unless\nspecifically invited in writing by the Company, neither the Potential Relationship Party nor any of the Potential Relationship Party’s Affiliates,\nsubsidiaries or Representatives acting on the Potential Relationship Party’s behalf or on behalf of other persons acting in concert with the\nPotential Relationship Party will in any manner, directly or indirectly:\n(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate\nin or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect\nor participate in: (i) any acquisition of any securities (or beneficial ownership thereof), or rights or options to acquire any securities (or\nbeneficial ownership thereof), or any assets, indebtedness or businesses of the Company or any of its subsidiaries or Affiliates; (ii) any\ntender or exchange offer, merger or other business combination involving the Company, any of the subsidiaries or Affiliates or assets of the\nCompany or its subsidiaries or its Affiliates constituting a significant portion of the consolidated assets of the Company and its subsidiaries\nor Affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company\nor any of its subsidiaries or Affiliates,\n(ii) make, or in any way participate in, directly or indirectly, (i) any “solicitation” of “proxies” (as such terms are used in the rules of\nthe Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of any\nvoting securities of the Company or (ii) any demand for a copy of the Company’s stock ledger, list of stockholders or any other books and\nrecords of the Company;\n(iii) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to the Company or otherwise\nact in concert with any person in respect of any such securities;\n(iv) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board of\nDirectors or policies of the Company or to obtain representation on the Board of Directors of the Company;\n(v) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding\nany of the types of matters set forth in (i) above; or\n(vi) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\n(b) Notwithstanding the foregoing, the provisions of ARTICLE I Section 10(a), the Potential Relationship Party or any of the Potential\nRelationship Party’s Affiliates, subsidiaries or Representatives acting on the Potential Relationship Party’s behalf may at any time and from time\nto time submit to the Board of Directors of the Company one or more offers, proposals or indications of interest related to a Possible Transaction\nthat would otherwise be prohibited by ARTICLE I Section 10(a), provided that each such submission is made on a confidential basis, does not\nstate an intention to make a public announcement related to the text or contents of such submission or discussion and is made in a manner that\ncould not reasonably be expected to cause the Company to need to make public disclosure thereof.\n(c) The Potential Relationship Party also agrees during the Standstill Period not to request that the Company or any of its Representatives,\ndirectly or indirectly, amend or waive any provision of this ARTICLE I Section 10.\n(d) The Potential Relationship Party agrees that, if at any time during the Standstill Period, the Potential Relationship Party or any of the\nPotential Relationship Party’s Affiliates or subsidiaries or Representatives acting on the Potential Relationship Party’s behalf are approached by\nany third party concerning the Potential Relationship Party’s or their participation in a transaction involving any assets, indebtedness or business\nof, or securities issued by, the Company or any of its subsidiaries, the Potential Relationship Party will promptly inform the Company of the\nnature of such transaction and the parties involved.\nPage 6 of 11\n(e) The banks approached by the Potential Relationship Party for the purpose of financing would be subject to confidentiality obligations as\nset forth in said Section 3, without, however, requiring such recipient bank, or its representatives, to make the Standstill undertakings stipulated\nin the current Section 10 of the Agreement.\n(f) The non-solicitation and stand-still obligations under Sections 9 and 10 will cease to apply on completion of the transaction.\nSection 11. Miscellaneous.\n(a) Notices. All notices, requests, claims, demands and other communications hereunder will be given in writing and will be deemed given\nand effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile or e-mail of a .pdf, .tif, .gif,\n.jpeg or similar electronic attachment at the facsimile number or email address, respectively, specified for the relevant receiving Party before 5:30\np.m. (in the time zone of the receiving Party) on a business day (in the time zone of the receiving Party), (ii) the next business day after the date\nof transmission, if such notice or communication is delivered via facsimile or e-mail of a .pdf, .tif, .gif, .jpeg or similar electronic attachment at\nthe facsimile number or email address, respectively, specified for the relevant receiving Party on a day that is not a business day or later than 5:30\np.m. on any business day (in each case, in the time zone of the receiving Party), (iii) one business day following the date of deposit with a\nnationally recognized overnight courier service for delivery on the following business day, or (iv) upon actual receipt by the party to whom such\nnotice is required to be given, but if delivery is not accepted, then on the date delivery is refused. The addresses, facsimile numbers and email\naddresses for such notices and communications are those set forth below, or such other address, facsimile number or email address as may be\ndesignated in writing after the Effective Date, in the same manner, by any such person:\nif to the Potential Relationship Party:\nSUN PHARMACEUTICAL INDUSTRIES LTD\nAcme Plaza, Andheri — Kurla Road,\nAndheri — East, Mumbai — 400 059,\nMabharashtra, India\nAttention: Mr. Ashok I. Bhuta\nFacsimile: +91 22 6184 8686\nEmail: Ashok.Bhuta@sunpharma.com\nwith a copy (which will not constitute notice) to:\nS. H. Bathiya & Associates\n2, Tardeo AC Market,\n4th Floor, Tardeo Road,\nMumbai — 400 034\nAttention: Shailesh H. Bathiya\nFacsimile: +91 22 4355 8080\nEmail: shb@shbathiya.com\nif to the Company:\nInSite Vision Incorporation\n965 Atlantic Ave.\nAlameda, CA 94501\nAttention: Timothy Ruane\nFacsimile: (510) 865-5700\nEmail: TRuane@insite.com\nPage 7 of 11\nwith a copy (which will not constitute notice) to:\nJones Day\n1755 Embarcadero Road\nPalo Alto, CA 94303\nAttention: Timothy Curry & Jonn Beeson\nFacsimile: 1-650-739-3900\nEmail: tcurry@jonesday.com & jbeeson@jonesday.com\n(b) Severability. If any provision of this Agreement is found to violate any statute, regulation, rule, order or decree of any governmental\nauthority, court, agency or exchange, such invalidity will not be deemed to affect any other provision of this Agreement or the validity of the\nremainder of this Agreement, and such invalid provision will be replaced with a valid provision that as closely as possible reflects the Parties’\nintent with respect to such invalid provision.\n(c) Entire Agreement. This Agreement contains the entire agreement between the Parties regarding its subject matter and supersedes all\nprior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter, provided that any\nconfidentiality or non-disclosure existing between the parties prior to the date of this Agreement will continue to apply to disclosures made prior\nto the date of this Agreement.\n(d) Successors. This Agreement will inure to the benefit of, and be enforceable by, the Parties and each of their successors and assigns.\n(e) Remedies. It is understood and agreed that money damages would not be an adequate remedy for any breach of this Agreement by a\nParty or any of its Representatives and that a Party will be entitled to equitable relief, including injunction and specific performance, as a remedy\nfor any such breach by the other Party. Such remedies will not be deemed to be the exclusive remedies for a breach of this Agreement but will be\nin addition to all other remedies available at law or in equity. Each Party further agrees not to raise as a defense or objection to the request or\ngranting of such relief that any breach of this Agreement is or would be compensable by an award of money damages, and the Parties agree to\nwaive any requirements for the securing or posting of any bond in connection with such remedy. In the event of litigation relating to this\nAgreement, if a court of competent jurisdiction determines (in a judgment not subject to further appeal or for which the time for appeal has\nexpired), that a Party or any of its Representatives has breached this Agreement, then such Party will be liable and pay to the other Party the\nreasonable legal fees incurred by the other Party in connection with such litigation, including any appeal therefrom. If such court determines (in a\njudgment not subject to further appeal or for which the time for appeal has expired) that neither Party or its Representatives has breached this\nAgreement, then each Party will pay their own legal fees incurred in connection with such litigation and any appeal therefrom.\n(f) Third Party Beneficiaries. Each Party agrees that nothing herein expressed or implied is intended to confer upon or give any rights or\nremedies to any other person under or by reason of this Agreement.\n(g) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware applicable to\nagreements made and to be performed entirely within the State of Delaware, without regard to the conflict of law provisions that would result in\nthe application of the laws of any other jurisdiction.\n(h) Forum. Each Party irrevocably and unconditionally submits to the exclusive personal jurisdiction of the chancery courts of the State of\nDelaware or, if the chancery courts of the State of Delaware lack jurisdiction, any federal court located in the State of Delaware (and, in each\ncase, any appellate court from any thereof), for any actions, suits or proceedings arising out of or relating to this Agreement (and each Party\nagrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process,\nsummons, notice or document by U.S. registered mail to such Party’s address set forth above will be effective service of process for any action,\nsuit or proceeding brought against such Party in any such court). Each Party irrevocably and unconditionally waives any objection that such\nParty may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of this Agreement in the chancery courts of\nthe State of\nPage 8 of 11\nDelaware or, if the chancery courts of the State of Delaware lack jurisdiction, any Federal court located in the State of Delaware (and, in each\ncase, any appellate court from any thereof), and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court\nthat any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n(i) Waiver of Jury Trial. EACH OF THE PARTIES WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY\nRIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,\nUNDER OR IN CONNECTION WITH THIS AGREEMENT. Each of the Parties (A) certifies that no representative, agent or attorney of the\nother Party has represented, expressly or otherwise, that the other Party would not, in the event of litigation, seek to enforce the foregoing waiver\nand (B) acknowledges that it has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this\nARTICLE I Section 11(i).\n(j) Counterparts. This Agreement may be executed and delivered (including by facsimile transmission or by e-mail of a .pdf, .tif, .jpeg or\nsimilar attachment in two or more counterparts, and by the different Parties in separate counterparts, each of which when executed and delivered\nwill be deemed to be an original but all of which taken together will constitute one and the same agreement. Any such counterpart, to the extent\ndelivered using facsimile transmission or by e-mail of a .pdf, .tif, .jpeg or similar attachment will be treated in all manner and respects as an\noriginal executed counterpart and will be considered to have the same binding legal effect as if it were the original signed version thereof\ndelivered in person.\n(k) No Waiver of Rights. No failure or delay by either Party in exercising any right, power or privilege under this Agreement will operate\nas a waiver, nor will any single or partial exercise under this Agreement preclude any other or further exercise under this Agreement or the\nexercise of any other right, power or privilege hereunder.\n(1) No Modification. No provision in this Agreement can be waived, modified or amended except by written consent of the Party against\nwhom enforcement is sought, which consent will specifically refer to the provision to be waived, modified or amended and will explicitly make\nsuch waiver, modification or amendment.\n(m) Inquiries. All inquiries for information about the Company and its subsidiaries and communications with the Company will be made\nthrough [ ] or through an employee or person who has contacted the Potential Relationship Party for and on behalf of the Company.\nNeither the Potential Relationship Party nor any of its Representatives will contact any third party with whom the Company or any of its\nsubsidiaries has a business or other relationship (including any director, officer, employee, customer, supplier, stockholder or creditor of the\nCompany or any of its subsidiaries) in connection with a Possible Transaction without the Company’s prior written consent unless such person\nhas contacted the Potential Relationship Party for and on behalf of the Company.\n(n) Term. This Agreement and all obligations will terminate three years from the date of this Agreement.\n(o) General Interpretation. Each of the Parties has been represented by independent counsel of its choice throughout all negotiations that\nhave preceded the execution of this Agreement, and each has executed this Agreement with the advice of said independent counsel. Each Party\nand its counsel participated in the preparation of this Agreement, and any and all drafts of this Agreement exchanged among the Parties will be\ndeemed the work product of all of the Parties and may not be construed against any Party by reason of its drafting or preparation. Each of the\nParties waives the application of any law or rule of construction providing that ambiguities in an agreement or other document will be construed\nagainst the party drafting such agreement or document. In this Agreement, except to the extent otherwise provided or that the context otherwise\nrequires:\n(i) the headings in this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this\nAgreement;\nPage 9 of 11\n» e\n(ii) whenever the words “include,” “includes” or “including” are used in this Agreement, they are deemed to be followed by the\nwords “without limitation;”\n(iii) the use of “or” is not intended to be exclusive, unless expressly indicated otherwise; and\n(iv) words importing the singular include the plural and vice versa and words importing gender include all genders.\n[Remainder of Page Intentionally Left Blank — Signature Page Follows]\nPage 10 of 11\nINSITE VISION INCORPORATION\nBy:  /s/ Lyle Bowman\nName: Lyle Bowman\nTitle: Vice President\nSUN PHARMACEUTICAL INDUSTRIES LTD\nBy:  /s/ Uday Baldota\nName: Uday Baldota\nTitle: Senior Vice President	EX-99.D.5 9 d96542dex99d5.htm EX-99.D.5\nEXHIBIT (d)(5)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement ("Agreement") is dated as of 31st January, 2014 (the "Effective Date") and is entered into between\nInSite Vision Incorporation, a Delaware corporation (the "Company"), and SUN PHARMACEUTICAL INDUSTRIES LTD., a company\nregistered and existing in India under the Companies Act, 1956, with its registered office at SPARC, Tandalja, Baroda 390 020, Gujarat, India\nand its corporate office at Acme Plaza, Andheri Kuria Road, Andheri East, Mumbai 400 059, Maharashtra, India (the "Potential\nRelationship Party"). Each of the Company and the Potential Relationship Party are sometimes referred to herein as a "Party" and together as\nthe "Parties." In consideration of the mutual covenants contained herein, the Potential Relationship Party and the Company, intending to be\nlegally bound hereby, agree to the following:\nSection 1. Definitions. For purposes of this Agreement:\n(a) "Affiliate" of a specified person means a person who, directly or indirectly through one or more intermediaries, controls, is controlled\nby, or is under common control with, such specified person.\n(b) "Confidential Information" means all information relating, directly or indirectly, to the Disclosing Party or the business, products,\nmarkets, research and development, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects\nof\nthe Disclosing Party, the business of any customer or partner of the Disclosing Party, any information about or concerning any third party (which\ninformation was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party) and any product\nofferings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data,\nschematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies of the\nDisclosing Party (in each case, whether prepared by the Disclosing Party, its Representatives or otherwise) which is delivered, disclosed or\nfurnished\nby\nor\non\nbehalf\nof\nthe\nDisclosing\nParty\nto\nthe\nReceiving\nParty\nor\nto\nits\nRepresentatives,\nbefore,\non\nor\nafter\nthe\ndate\nof\nthis\nAgreement,\nregardless of the manner in which it is delivered, disclosed or furnished, and will also be deemed to include all notes, analyses, compilations,\nstudies, forecasts, interpretations or other documents prepared by the Receiving Party or its Representatives that contain, reflect or are based\nupon,\nin\nwhole\nor\nin\npart,\nthe\ninformation\ndelivered,\ndisclosed\nor\nfurnished\nto\nthe\nReceiving\nParty\nor\nits\nRepresentatives\npursuant\nto\nthis\nAgreement. Notwithstanding any other provision of this Agreement, the term Confidential Information will not include information which:\n(i) is or becomes generally available to the public, through no fault of the Receiving Party or its Representatives; provided, however,\nthat specific aspects or details of Confidential Information will not be deemed to be within the public domain, or in the possession of the\nReceiving Party in accordance with Section (b)(ii), merely because the Confidential Information is embraced by more general information\nin\nthe public domain or in the possession of the Receiving Party. Further, any combination of Confidential Information will not be\nconsidered in the public domain or in the possession of the Receiving Party in accordance with Section (b)(ii) merely because individual\nelements of such Confidential Information are in the public domain or in the possession of the Receiving Party unless the combination and\nits principles are in the public domain or in the possession of the Receiving Party;\n(ii) can be demonstrated by documentation or competent proof to have been in the possession of the Receiving Party before its being\nfurnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the Receiving Party does not know, or have a\nreasonable basis for concluding, that the source of such information was bound by a confidentiality agreement with, or other contractual,\nlegal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with respect to such information;\n(iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or any of its\nRepresentatives, provided that the Receiving Party does not know or have reason to believe that the source is bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party with respect to such\ninformation; or\n(iv) the Disclosing Party agrees in writing is not Confidential Information\n(c) "Discussion Information" has the meaning provided in Section 3(c).\n(d) "Disclosing Party" means the Party disclosing Confidential Information or on whose behalf Confidential Information is disclosed, in\nany particular circumstance.\n(e) "Exchange Act" means the Securities Exchange Act of 1934 as amended.\n(f)\n"Receiving Party" means the Party receiving Confidential Information or on whose behalf Confidential Information is received, in any\nparticular circumstance.\n(g) "person" will be broadly interpreted to include individuals, any corporation, partnership, group, individual or other entity and the\nmedia.\n(h) "Possible Transaction" means a possible negotiated business combination between the Parties.\n(i) "Representatives" means (i) with respect to the Potential Relationship Party, the Potential Relationship Party's officers, managers,\ndirectors, general partners, employees, outside counsel, accountants, consultants, financial advisors, and potential sources of equity or debt\nfinancing (and their respective counsel), and (ii) with respect to the Company, will include its officers, directors, employees, agents, partners and\nadvisors and those of its subsidiaries, Affiliates and/or divisions (including attorneys, accountants, consultants and financial advisors).\n(j) "Standstill Period" means the six months period commencing on the date of this Agreement.\nSection 2. Disclosure of Confidential Information. In connection with the consideration of a Possible Transaction, the Company and the\nPotential Relationship Party may deliver or make available (or prior to the date hereof may have delivered or made available) to the other and its\nRepresentatives certain information concerning its business, financial condition, operations, assets and liabilities. As a condition to such\ninformation being furnished to the Receiving Party and the Receiving Party's Representatives, the Receiving Party agrees that the Receiving\nParty will, and will cause the Receiving Party's Representatives to, treat the Confidential Information in accordance with the provisions of this\nAgreement and take or abstain from taking certain other actions as set forth herein. Notwithstanding any other provision of this Agreement,\nneither Party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be\nconstrued as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a\ncommitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation\nnot specified herein; or (d) prohibiting either Party from associating themselves with competitors of the other Party for purposes substantially\nsimilar to those involved herein.\nSection 3. Use and Non-Disclosure of Confidential Information and Discussion Information.\n(a) The Receiving Party hereby agrees that the Receiving Party and the Receiving Party's Representatives will use Confidential\nInformation of the Disclosing Party solely for the purpose of evaluating and negotiating a Possible Transaction with the Disclosing Party and for\nno other purpose, and that such Confidential Information will not be used in any way detrimental to the Disclosing Party. The Receiving Party\nfurther agrees that it will and will cause its Representatives to take those steps the Receiving Party takes to protect its own similar proprietary and\nconfidential information (which will not be less than a reasonable standard of care) to keep the Confidential Information of the Disclosing Party\nconfidential; provided, however, that (i) the Receiving Party may make any disclosure of the Confidential Information to which the Disclosing\nParty gives its prior written consent\nPage 2 of 11\nand (ii) any of the Confidential Information may be disclosed to the Receiving Party's Representatives who need to know such information for\nthe purpose of evaluating a Possible Transaction, who are provided with a copy of this Agreement and who agree to be bound by the terms this\nAgreement. The Parties will maintain a list of those Representatives to whom Confidential Information has been disclosed (which list will be\npresented to the Party upon the other Party's request). In any event, the Receiving Party agrees to undertake reasonable precautions to safeguard\nand protect the confidentiality of the Confidential Information, to accept responsibility for any breach of this Agreement by the Receiving Party\nor any of the Receiving Party's Representatives, and, at the Receiving Party's sole expense, to take all reasonable measures (including court\nproceedings) to restrain the Receiving Party and the Receiving Party's Representatives from prohibited or unauthorized disclosure or uses of the\nConfidential Information.\n(b) Notwithstanding any other provision of this Agreement:\n(i) the Receiving Party or its Representatives may disclose Confidential Information of the Disclosing Party if required in order to\nestablish its rights under this Agreement, but only to the extent such disclosure is necessary and provided that the Receiving Party seeks\nconfidential treatment of the Confidential Information to be disclosed;\n(ii) this Agreement will not prohibit or restrict either Party's right to develop, make, use, market, license or distribute products or\nservices similar to or competitive with those of the other Party disclosed in the Confidential Information as long as such Party does not\nthereby breach this Agreement. Each Party acknowledges that the other may already possess or have developed products or services\nsimilar\nto or competitive with those of the other Party disclosed in the Confidential Information; and\n(iii) either Party will be free to use for any purpose the residuals resulting from access to or work with Confidential Information\ndisclosed hereunder. The term "residuals" means information in non-tangible form which may be retained in the unaided memory by\npersons who have had access to the Confidential Information so long as such persons have not studied the information for the purpose of\nreplicating the same from memory. Neither Party shall have any obligation to limit or restrict the assignment of such persons or to pay\nroyalties for any work resulting from the use of residuals.\n(c) Each Party agrees that, without the prior written consent of the other Party, neither it nor its Representatives will disclose to any other\nperson the fact that the other Party or its Representative have received Confidential Information or that Confidential Information has been made\navailable to the other Party or its Representatives, that investigations, discussions or negotiations are taking place concerning a Possible\nTransaction or any of the terms, conditions or other facts with respect to any Possible Transaction, including the status this Agreement and the\nidentity of the parties hereto (collectively, the "Discussion Information"), provided that the Receiving Party may make such disclosure if required\nby law or the applicable rules of any securities exchange or interdealer quotation system. The Potential Relationship Party further agrees that,\nwithout the prior written consent of the Company (which shall not be unreasonably withheld or denied), the Potential Relationship Party and the\nPotential Relationship Party's Representatives will not, directly or indirectly, consult or share Confidential Information or Discussion\nInformation with, or enter into any agreement, arrangement or understanding, or any discussions which might lead to any such agreement,\narrangement or understanding, with any co-investor, source of equity financing or other person (other than the Company) regarding a Possible\nTransaction, including discussions or other communications with any prospective bidder for the Company with respect to (i) whether or not the\nReceiving Party or such other prospective bidder will make a bid or offer for the Disclosing Party or (ii) the price that the Receiving Party or\nsuch other bidder may bid or offer for the Disclosing Party.\n(d) To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or\nany\nother\napplicable\nprivilege\nconcerning\npending\nor\nthreatened\nlegal\nproceedings\nor\ngovernmental\ninvestigations,\nthe\nParties\nunderstand\nand\nagree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the\nsharing of such material is not intended to, and will not, waive or diminish in any way the confidentiality of such material or its continued\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidentia Information provided by\na\nParty that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege will remain entitled to\nsuch protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any Party to\nreveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\nPage 3 of 11\nSection 4. Required Actions if Disclosure is Legally Sought or Compelled. In the event that the Receiving Party or any of the Receiving Party's\nRepresentatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings,\nsubpoena, civil investigative demand or other similar process) to disclose any of the Confidential Information or Discussion Information, the\nReceiving Party will provide the Disclosing Party with prompt written notice of any such request or requirement so that the Disclosing Party may\nin its sole discretion seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If,\nin\nthe absence of a protective order or other remedy or the receipt of a waiver by the Disclosing Party, the Receiving Party or any of the Receiving\nParty's Representatives are nonetheless, in the written opinion of outside legal counsel, legally compelled to disclose Confidential Information or\nDiscussion Information to any tribunal, the Receiving Party or the Receiving Party's Representatives may, without liability hereunder, disclose to\nsuch tribunal only that portion of the Confidential Information or Discussion Information which such counsel advises the Receiving Party is\nlegally required to be disclosed, provided that the Receiving Party will use the Receiving Party's reasonable best efforts to preserve the\nconfidentiality of the Confidential Information and the Discussion Information, including by cooperating with the Disclosing Party to obtain\nan\nappropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information and the\nDiscussion Information by such tribunal; and provided further that the Receiving Party will promptly notify the Disclosing Party of (i) the\nReceiving Party's determination to make such disclosure and (ii) the nature, scope and contents of such disclosure.\nSection 5. Return and Destruction of Confidential Information. In the event that the Receiving Party decides not to proceed with a Possible\nTransaction, the Receiving Party will promptly inform the Disclosing Party of that decision. In that case, or at any time upon the request of the\nDisclosing Party in its sole discretion and for any reason, the Receiving Party will as directed by the Disclosing Party promptly deliver, at the\nReceiving Party's expense, to the Disclosing Party or destroy all Confidential Information furnished to the Receiving Party or the Receiving\nParty's Representatives by or on behalf of the Disclosing Party pursuant hereto. In the event of such a decision or request, all other Confidential\nInformation prepared by the Receiving Party or on the Receiving Party's behalf will be returned or destroyed and, upon the Disclosing Party's\nrequest, the Receiving Party will provide the Disclosing Party with prompt written confirmation of the Receiving Party's compliance with\nthis\nparagraph; provided, however, that\n(a) if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material will not be destroyed until\nthe\nproceeding is settled or a final judgment with respect thereto has been rendered;\n(b) the Receiving Party will not, in connection with the foregoing obligations, be required to identify or delete Confidential Information\nheld electronically in archive or back-up systems in accordance with general systems archiving or backup policies and further provided that the\nReceiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential\nInformation so archived or backed-up;\n(c) the Receiving Party will not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the\nReceiving Party is required to retain a copy pursuant to applicable law; and\n(d) one copy of all Confidential Information may be kept by the Receiving Party's outside counsel, if any, and such Confidential\nInformation shall be fully protected by attorney-client privilege.\nNotwithstanding the return, destruction or continued possession pursuant to the terms of this Section 5 of the Confidential Information, the\nReceiving Party and the Receiving Party's Representatives will continue to be bound by the Receiving Party's obligations of confidentiality and\nother obligations and agreements hereunder.\nSection 6. No Agreement. Each Patty understands and agrees that no contract or agreement providing for any Possible Transaction will be\ndeemed to exist between the Parties unless and until a final definitive agreement has been executed and delivered, and each Party hereby waives,\nin advance, any claims (including breach of\nPage 4 of 11\ncontract) in connection with any Possible Transaction unless and until the Parties will have entered into a final definitive agreement. The Parties\nalso agree that unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will\nbe under any legal obligation of any kind whatsoever with respect to such a Possible Transaction by virtue of this Agreement, except for the\nmatters specifically agreed to herein. The Company further reserves the right, in its sole discretion, with due notice to reject any and all proposals\nmade by the Potential Relationship Party or any of its Representatives with regard to a Possible Transaction to determine not to engage in\ndiscussions or negotiations and to terminate discussions and negotiations with the Potential Relationship Party at any time, and to conduct,\ndirectly or through any of its Representatives, any process for any transaction involving the Company or any of its subsidiaries, if and as they in\ntheir sole discretion determine (including negotiating with any other interested parties and entering into a definitive agreement without prior\nnotice to the Potential Relationship Party or any other person).\nSection 7. Representations and Warranties. Each Party represents and warrants to the other Party that it has the right to enter into this\nAgreement and that this Agreement is a valid and binding obligation of such Party relating to the matters herein. Each Party further represents\nand warrants that the terms of this Agreement are not inconsistent with other contractual obligations, express or implied, which such Party may\nhave or any law applicable to such Party or its business. The Receiving Party understands, acknowledges and agrees that neither the Disclosing\nParty nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the\nConfidential Information by virtue of this Agreement. The Receiving Party agrees that neither the Disclosing Party nor any of its Representatives\nwill have any liability to the Receiving Party or to any of the Receiving Party's Representatives relating to or resulting from the use of the\nConfidential Information or any errors therein or omissions therefrom.\nSection 8. Material Non-Public Information. The Receiving Party acknowledges and agrees that the Receiving Party is aware (and that the\nReceiving Party's Representatives are aware or, upon receipt of any Confidential Information or Discussion Information, will be advised by the\nReceiving Party) that (a) the Confidential Information being furnished to the Receiving Party or the Receiving Party's Representatives contains\nmaterial, non-public information regarding the Disclosing Party and (b) the United States and other non-U.S. securities laws prohibit any persons\nwho have material, nonpublic information concerning the matters which are the subject of this Agreement, including the Discussion Information,\nfrom purchasing or selling securities of a company which may be a party to a transaction of the type contemplated by this Agreement or from\ncommunicating such information to any person under circumstances in which it is reasonably foreseeable that such person is likely to purchase\nor\nsell such securities in reliance upon such information.\nSection 9. No Solicitation. In consideration of the Confidential Information being furnished hereunder, each Party agrees that, for a period of\nsix months from the date of this Agreement, such Party will not, directly or indirectly, solicit for employment with such Party or any of its\nAffiliates, any of the officers or employees of the other Party or its Affiliates (a) with whom such Party has had contact during the evaluation of a\nPossible Transaction or (b) who were identified by name and function to such Party by an officer or employee of the other Party with whom such\nParty or its Representatives had contact during the evaluation of a Possible Transaction. For the avoidance of doubt, employees whose names are\nprovided by the other Party in response to a request made by such Party or its Representatives during the evaluation of a Possible Transaction are\ncovered by this non-solicitation obligation. Notwithstanding the foregoing, nothing herein shall restrict or preclude either Party from (i) making\ngeneralized searches for employees (by use of advertisements in the media, the engagement of search firms or otherwise), (ii) continuing its\nordinary course hiring practices that are not targeted specifically at employees of the other Party, (iii) hiring an employee of the other Party who\nfirst initiates an employment discussion with such Party, in each case, so long as such Party has not violated the restrictions on solicitation\ncontained in this Agreement or (iv) if the employee is no more on the rolls of the Party.\nPage 5 of 11\nSection 10. Standstill.\n(a) As of the date of this Agreement, neither the Potential Relationship Party nor any of the Potential Relationship Party's Representatives\nacting on the Potential Relationship Party's behalf, or any person with whom any of the foregoing may be deemed to be acting in concert with\nrespect to the Company or its securities, owns any securities of the Company to the best of their knowledge, information and belief and shall not\nown more than 5% during the tenure of this Agreement. The Potential Relationship Party agrees that during the Standstill Period unless\nspecifically invited in writing by the Company, neither the Potential Relationship Party nor any of the Potential Relationship Party's Affiliates,\nsubsidiaries or Representatives acting on the Potential Relationship Party's behalf or on behalf of other persons acting in concert with the\nPotential Relationship Party will in any manner, directly or indirectly:\n(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate\nin or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect\nor participate in: (i) any acquisition of any securities (or beneficial ownership thereof), or rights or options to acquire any securities (or\nbeneficial ownership thereof), or any assets, indebtedness or businesses of the Company or any of its subsidiaries or Affiliates; (ii) any\ntender or exchange offer, merger or other business combination involving the Company, any of the subsidiaries or Affiliates or assets of the\nCompany or its subsidiaries or its Affiliates constituting a significant portion of the consolidated assets of the Company and its subsidiaries\nor Affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company\nor any of its subsidiaries or Affiliates,\n(ii) make, or in any way participate in, directly or indirectly, (i) any "solicitation" of "proxies" (as such terms are used in the rules of\nthe Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of any\nvoting securities of the Company or (ii) any demand for a copy of the Company's stock ledger, list of stockholders or any other books and\nrecords of the Company;\n(iii) form, join or in any way participate in a "group" (as defined under the Exchange Act) with respect to the Company or otherwise\nact in concert with any person in respect of any such securities;\n(iv) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board of\nDirectors or policies of the Company or to obtain representation on the Board of Directors of the Company;\n(v) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding\nany of the types of matters set forth in (i) above; or\n(vi) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\n(b) Notwithstanding the foregoing, the provisions of ARTICLE I Section 10(a), the Potential Relationship Party or any of the Potential\nRelationship Party's Affiliates, subsidiaries or Representatives acting on the Potential Relationship Party's behalf may at any time and from time\nto time submit to the Board of Directors of the Company one or more offers, proposals or indications of interest related to a Possible Transaction\nthat would otherwise be prohibited by ARTICLE I Section 10(a), provided that each such submission is made on a confidential basis, does not\nstate an intention to make a public announcement related to the text or contents of such submission or discussion and is made in a manner that\ncould not reasonably be expected to cause the Company to need to make public disclosure thereof.\n(c) The Potential Relationship Party also agrees during the Standstill Period not to request that the Company or any of its Representatives,\ndirectly or indirectly, amend or waive any provision of this ARTICLE I Section 10.\n(d) The Potential Relationship Party agrees that, if at any time during the Standstill Period, the Potential Relationship Party or any of the\nPotential Relationship Party's Affiliates or subsidiaries or Representatives acting on the Potential Relationship Party's behalf are approached by\nany third party concerning the Potential Relationship Party's or their participation in a transaction involving any assets, indebtedness or business\nof, or securities issued by, the Company or any of its subsidiaries, the Potential Relationship Party will promptly inform the Company of the\nnature of such transaction and the parties involved.\nPage 6 of 11\n(e) The banks approached by the Potential Relationship Party for the purpose of financing would be subject to confidentiality obligations as\nset\nforth in said Section 3, without, however, requiring such recipient bank, or its representatives, to make the Standstill undertakings stipulated\nin the current Section 10 of the Agreement.\n(f) The non-solicitation and stand-still obligations under Sections 9 and 10 will cease to apply on completion of the transaction.\nSection 11. Miscellaneous.\n(a) Notices. All notices, requests, claims, demands and other communications hereunder will be given in writing and will be deemed given\nand effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile or e-mail of a .pdf, .tif, .gif,\n.jpeg or similar electronic attachment at the facsimile number or email address, respectively, specified for the relevant receiving Party before 5:30\np.m. (in the time zone of the receiving Party) on a business day (in the time zone of the receiving Party), (ii) the next business day after the date\nof transmission, if such notice or communication is delivered via facsimile or e-mail of a .pdf, .tif, .gif, .jpeg or similar electronic attachment at\nthe facsimile number or email address, respectively, specified for the relevant receiving Party on a day that is not a business day or later than 5:30\np.m. on any business day (in each case, in the time zone of the receiving Party), (iii) one business day following the date of deposit with a\nnationally recognized overnight courier service for delivery on the following business day, or (iv) upon actual receipt by the party to whom such\nnotice\nis\nrequired to be given, but if delivery is not accepted, then on the date delivery is refused. The addresses, facsimile numbers and email\naddresses for such notices and communications are those set forth below, or such other address, facsimile number or email address as may be\ndesignated in writing after the Effective Date, in the same manner, by any such person:\nif to the Potential Relationship Party:\nSUN PHARMACEUTICAL INDUSTRIES LTD\nAcme Plaza, Andheri - Kurla Road,\nAndheri - East, Mumbai - 400 059,\nMaharashtra, India\nAttention: Mr. Ashok I. Bhuta\nFacsimile: +91 22 6184 8686\nEmail: :Ashok.Bhuta@sunpharma.com\nwith a copy (which will not constitute notice) to:\nS. H. Bathiya & Associates\n2, Tardeo AC Market,\n4th Floor, Tardeo Road,\nMumbai - 400 034\nAttention: Shailesh H. Bathiya\nFacsimile: +91 22 4355 8080\nEmail: shb@shbathiya.com\nif to the Company:\nInSite Vision Incorporation\n965 Atlantic Ave.\nAlameda, CA 94501\nAttention: Timothy Ruane\nFacsimile: (510) 865-5700\nEmail: TRuane@insite.com\nPage 7 of 11\nwith a copy (which will not constitute notice) to:\nJones Day\n1755 Embarcadero Road\nPalo Alto, CA 94303\nAttention: Timothy Curry & Jonn Beeson\nFacsimile: 1-650-739-3900\nEmail: tcurry@jonesday.com & jbeeson@jonesday.com\n(b) Severability. If any provision of this Agreement is found to violate any statute, regulation, rule, order or decree of any governmental\nauthority, court, agency or exchange, such invalidity will not be deemed to affect any other provision of this Agreement or the validity of the\nremainder of this Agreement, and such invalid provision will be replaced with a valid provision that as closely as possible reflects the Parties'\nintent with respect to such invalid provision.\n(c) Entire Agreement. This Agreement contains the entire agreement between the Parties regarding its subject matter and supersedes all\nprior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter, provided that any\nconfidentiality or non-disclosure existing between the parties prior to the date of this Agreement will continue to apply to disclosures made prior\nto the date of this Agreement.\n(d) Successors. This Agreement will inure to the benefit of, and be enforceable by, the Parties and each of their successors and assigns.\n(e) Remedies. It is understood and agreed that money damages would not be an adequate remedy for any breach of this Agreement by a\nParty or any of its Representatives and that a Party will be entitled to equitable relief, including injunction and specific performance, as a remedy\nfor any such breach by the other Party. Such remedies will not be deemed to be the exclusive remedies for a breach of this Agreement but will\nbe\nin addition to all other remedies available at law or in equity. Each Party further agrees not to raise as a defense or objection to the request or\ngranting of such relief that any breach of this Agreement is or would be compensable by an award of money damages, and the Parties agree\nto\nwaive any requirements for the securing or posting of any bond in connection with such remedy. In the event of litigation relating to this\nAgreement, if a court of competent jurisdiction determines (in a judgment not subject to further appeal or for which the time for appeal has\nexpired), that a Party or any of its Representatives has breached this Agreement, then such Party will be liable and pay to the other Party the\nreasonable legal fees incurred by the other Party in connection with such litigation, including any appeal therefrom. If such court determines (in a\njudgment not subject to further appeal or for which the time for appeal has expired) that neither Party or its Representatives has breached this\nAgreement, then each Party will pay their own legal fees incurred in connection with such litigation and any appeal therefrom.\n(f) Third Party Beneficiaries. Each Party agrees that nothing herein expressed or implied is intended to confer upon or give any rights or\nremedies to any other person under or by reason of this Agreement.\n(g) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware applicable to\nagreements made and to be performed entirely within the State of Delaware, without regard to the conflict of law provisions that would result in\nthe application of the laws of any other jurisdiction.\n(h) Forum. Each Party irrevocably and unconditionally submits to the exclusive personal jurisdiction of the chancery courts of the State of\nDelaware or, if the chancery courts of the State of Delaware lack jurisdiction, any federal court located in the State of Delaware (and, in each\ncase, any appellate court from any thereof), for any actions, suits or proceedings arising out of or relating to this Agreement (and each Party\nagrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process,\nsummons, notice or document by U.S. registered mail to such Party's address set forth above will be effective service of process for any action,\nsuit or proceeding brought against such Party in any such court). Each Party irrevocably and unconditionally waives any objection that such\nParty may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of this Agreement in the chancery courts of\nthe State of\nPage 8 of 11\nDelaware or, if the chancery courts of the State of Delaware lack jurisdiction, any Federal court located in the State of Delaware (and, in each\ncase, any appellate court from any thereof), and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court\nthat any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n(i) Waiver of Jury Trial. EACH OF THE PARTIES WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY\nRIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,\nUNDER OR IN CONNECTION WITH THIS AGREEMENT. Each of the Parties (A) certifies that no representative, agent or attorney of the\nother Party has represented, expressly or otherwise, that the other Party would not, in the event of litigation, seek to enforce the foregoing waiver\nand (B) acknowledges that it has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this\nARTICLE I Section 11(i).\n(j) Counterparts. This Agreement may be executed and delivered (including by facsimile transmission or by e-mail of a .pdf, .tif, .jpeg or\nsimilar attachment in two or more counterparts, and by the different Parties in separate counterparts, each of which when executed and delivered\nwill be deemed to be an original but all of which taken together will constitute one and the same agreement. Any such counterpart, to the extent\ndelivered using facsimile transmission or by e-mail of a .pdf, .tif, .jpeg or similar attachment will be treated in all manner and respects as an\noriginal executed counterpart and will be considered to have the same binding legal effect as if it were the original signed version thereof\ndelivered in person.\n(k) No Waiver of Rights. No failure or delay by either Party in exercising any right, power or privilege under this Agreement will operate\nas a waiver, nor will any single or partial exercise under this Agreement preclude any other or further exercise under this Agreement or the\nexercise of any other right, power or privilege hereunder.\n(1) No Modification. No provision in this Agreement can be waived, modified or amended except by written consent of the Party against\nwhom enforcement is sought, which consent will specifically refer to the provision to be waived, modified or amended and will explicitly make\nsuch waiver, modification or amendment.\n(m) Inquiries. All inquiries for information about the Company and its subsidiaries and communications with the Company will be made\nthrough\n1 or through an employee or person who has contacted the Potential Relationship Party for and on behalf of the Company.\nNeither the Potential Relationship Party nor any of its Representatives will contact any third party with whom the Company or any of its\nsubsidiaries has a business or other relationship (including any director, officer, employee, customer, supplier, stockholder or creditor of\nthe\nCompany or any of its subsidiaries) in connection with a Possible Transaction without the Company's prior written consent unless such person\nhas contacted the Potential Relationship Party for and on behalf of the Company.\n(n) Term. This Agreement and all obligations will terminate three years from the date of this Agreement.\n(o) General Interpretation. Each of the Parties has been represented by independent counsel of its choice throughout all negotiations that\nhave preceded the execution of this Agreement, and each has executed this Agreement with the advice of said independent counsel. Each Party\nand its counsel participated in the preparation of this Agreement, and any and all drafts of this Agreement exchanged among the Parties will be\ndeemed the work product of all of the Parties and may not be construed against any Party by reason of its drafting or preparation. Each of the\nParties waives the application of any law or rule of construction providing that ambiguities in an agreement or other document will be construed\nagainst the party drafting such agreement or document. In this Agreement, except to the extent otherwise provided or that the context otherwise\nrequires:\n(i) the headings in this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this\nAgreement;\nPage 9 of 11\n(ii) whenever the words "include," "includes" or "including" are used in this Agreement, they are deemed to be followed by the\nwords "without limitation;"\n(iii) the use of "or" is not intended to be exclusive, unless expressly indicated otherwise; and\n(iv) words importing the singular include the plural and vice versa and words importing gender include all genders.\n[Remainder of Page Intentionally Left Blank - Signature Page Follows]\nPage 10 of 11\nINSITE VISION INCORPORATION\nBy: /s/ Lyle Bowman\nName: Lyle Bowman\nTitle: Vice President\nSUN PHARMACEUTICAL INDUSTRIES LTD\nBy: /s/ Uday Baldota\nName: Uday Baldota\nTitle: Senior Vice President	EX-99.D.5 9 d96542dex99d5.htm EX-99.D.5\nEXHIBIT (d)(5)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (“Agreement”) is dated as of 31st January, 2014 (the “Effective Date”) and is entered into between\nInSite Vision Incorporation, a Delaware corporation (the “Company”), and SUN PHARMACEUTICAL INDUSTRIES LTD., a company\nregistered and existing in India under the Companies Act, 1956, with its registered office at SPARC, Tandalja, Baroda – 390 020, Gujarat, India\nand its corporate office at Acme Plaza, Andheri – Kuria Road, Andheri – East, Mumbai – 400 059, Maharashtra, India (the “Potential\nRelationship Party”). Each of the Company and the Potential Relationship Party are sometimes referred to herein as a “Party” and together as\nthe “Parties.” In consideration of the mutual covenants contained herein, the Potential Relationship Party and the Company, intending to be\nlegally bound hereby, agree to the following:\nSection 1. Definitions. For purposes of this Agreement:\n(a) “Affiliate” of a specified person means a person who, directly or indirectly through one or more intermediaries, controls, is controlled\nby, or is under common control with, such specified person.\n(b) “Confidential Information” means all information relating, directly or indirectly, to the Disclosing Party or the business, products,\nmarkets, research and development, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of\nthe Disclosing Party, the business of any customer or partner of the Disclosing Party, any information about or concerning any third party (which\ninformation was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third party) and any product\nofferings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data,\nschematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts and strategies of the\nDisclosing Party (in each case, whether prepared by the Disclosing Party, its Representatives or otherwise) which is delivered, disclosed or\nfurnished by or on behalf of the Disclosing Party to the Receiving Party or to its Representatives, before, on or after the date of this Agreement,\nregardless of the manner in which it is delivered, disclosed or furnished, and will also be deemed to include all notes, analyses, compilations,\nstudies, forecasts, interpretations or other documents prepared by the Receiving Party or its Representatives that contain, reflect or are based\nupon, in whole or in part, the information delivered, disclosed or furnished to the Receiving Party or its Representatives pursuant to this\nAgreement. Notwithstanding any other provision of this Agreement, the term Confidential Information will not include information which:\n(i) is or becomes generally available to the public, through no fault of the Receiving Party or its Representatives; provided, however,\nthat specific aspects or details of Confidential Information will not be deemed to be within the public domain, or in the possession of the\nReceiving Party in accordance with Section (b)(ii), merely because the Confidential Information is embraced by more general information\nin the public domain or in the possession of the Receiving Party. Further, any combination of Confidential Information will not be\nconsidered in the public domain or in the possession of the Receiving Party in accordance with Section (b)(ii) merely because individual\nelements of such Confidential Information are in the public domain or in the possession of the Receiving Party unless the combination and\nits principles are in the public domain or in the possession of the Receiving Party;\n(ii) can be demonstrated by documentation or competent proof to have been in the possession of the Receiving Party before its being\nfurnished to the Receiving Party by or on behalf of the Disclosing Party, provided that the Receiving Party does not know, or have a\nreasonable basis for concluding, that the source of such information was bound by a confidentiality agreement with, or other contractual,\nlegal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with respect to such information;\n(iii) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or any of its\nRepresentatives, provided that the Receiving Party does not know or have reason to believe that the source is bound by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party with respect to such\ninformation; or\n(iv) the Disclosing Party agrees in writing is not Confidential Information.\n(c) “Discussion Information” has the meaning provided in Section 3(c).\n(d) “Disclosing Party” means the Party disclosing Confidential Information or on whose behalf Confidential Information is disclosed, in\nany particular circumstance.\n(e) “Exchange Act” means the Securities Exchange Act of 1934 as amended.\n(f) “Receiving Party” means the Party receiving Confidential Information or on whose behalf Confidential Information is received, in any\nparticular circumstance.\n(g) “person” will be broadly interpreted to include individuals, any corporation, partnership, group, individual or other entity and the\nmedia.\n(h) “Possible Transaction” means a possible negotiated business combination between the Parties.\n(i) “Representatives” means (i) with respect to the Potential Relationship Party, the Potential Relationship Party’s officers, managers,\ndirectors, general partners, employees, outside counsel, accountants, consultants, financial advisors, and potential sources of equity or debt\nfinancing (and their respective counsel), and (ii) with respect to the Company, will include its officers, directors, employees, agents, partners and\nadvisors and those of its subsidiaries, Affiliates and/or divisions (including attorneys, accountants, consultants and financial advisors).\n(j) “Standstill Period” means the six months period commencing on the date of this Agreement.\nSection 2. Disclosure of Confidential Information. In connection with the consideration of a Possible Transaction, the Company and the\nPotential Relationship Party may deliver or make available (or prior to the date hereof may have delivered or made available) to the other and its\nRepresentatives certain information concerning its business, financial condition, operations, assets and liabilities. As a condition to such\ninformation being furnished to the Receiving Party and the Receiving Party’s Representatives, the Receiving Party agrees that the Receiving\nParty will, and will cause the Receiving Party’s Representatives to, treat the Confidential Information in accordance with the provisions of this\nAgreement and take or abstain from taking certain other actions as set forth herein. Notwithstanding any other provision of this Agreement,\nneither Party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be\nconstrued as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a\ncommitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation\nnot specified herein; or (d) prohibiting either Party from associating themselves with competitors of the other Party for purposes substantially\nsimilar to those involved herein.\nSection 3. Use and Non-Disclosure of Confidential Information and Discussion Information.\n(a) The Receiving Party hereby agrees that the Receiving Party and the Receiving Party’s Representatives will use Confidential\nInformation of the Disclosing Party solely for the purpose of evaluating and negotiating a Possible Transaction with the Disclosing Party and for\nno other purpose, and that such Confidential Information will not be used in any way detrimental to the Disclosing Party. The Receiving Party\nfurther agrees that it will and will cause its Representatives to take those steps the Receiving Party takes to protect its own similar proprietary and\nconfidential information (which will not be less than a reasonable standard of care) to keep the Confidential Information of the Disclosing Party\nconfidential; provided, however, that (i) the Receiving Party may make any disclosure of the Confidential Information to which the Disclosing\nParty gives its prior written consent\nPage2of11\nand (ii) any of the Confidential Information may be disclosed to the Receiving Party’s Representatives who need to know such information for\nthe purpose of evaluating a Possible Transaction, who are provided with a copy of this Agreement and who agree to be bound by the terms this\nAgreement. The Parties will maintain a list of those Representatives to whom Confidential Information has been disclosed (which list will be\npresented to the Party upon the other Party’s request). In any event, the Receiving Party agrees to undertake reasonable precautions to safeguard\nand protect the confidentiality of the Confidential Information, to accept responsibility for any breach of this Agreement by the Receiving Party\nor any of the Receiving Party’s Representatives, and, at the Receiving Party’s sole expense, to take all reasonable measures (including court\nproceedings) to restrain the Receiving Party and the Receiving Party’s Representatives from prohibited or unauthorized disclosure or uses of the\nConfidential Information.\n(b) Notwithstanding any other provision of this Agreement:\n(i) the Receiving Party or its Representatives may disclose Confidential Information of the Disclosing Party if required in order to\nestablish its rights under this Agreement, but only to the extent such disclosure is necessary and provided that the Receiving Party seeks\nconfidential treatment of the Confidential Information to be disclosed;\n(ii) this Agreement will not prohibit or restrict either Party’s right to develop, make, use, market, license or distribute products or\nservices similar to or competitive with those of the other Party disclosed in the Confidential Information as long as such Party does not\nthereby breach this Agreement. Each Party acknowledges that the other may already possess or have developed products or services similar\nto or competitive with those of the other Party disclosed in the Confidential Information; and\n(iii) either Party will be free to use for any purpose the residuals resulting from access to or work with Confidential Information\ndisclosed hereunder. The term “residuals” means information in non-tangible form which may be retained in the unaided memory by\npersons who have had access to the Confidential Information so long as such persons have not studied the information for the purpose of\nreplicating the same from memory. Neither Party shall have any obligation to limit or restrict the assignment of such persons or to pay\nroyalties for any work resulting from the use of residuals.\n(c) Each Party agrees that, without the prior written consent of the other Party, neither it nor its Representatives will disclose to any other\nperson the fact that the other Party or its Representative have received Confidential Information or that Confidential Information has been made\navailable to the other Party or its Representatives, that investigations, discussions or negotiations are taking place concerning a Possible\nTransaction or any of the terms, conditions or other facts with respect to any Possible Transaction, including the status this Agreement and the\nidentity of the parties hereto (collectively, the “Discussion Information”), provided that the Receiving Party may make such disclosure if required\nby law or the applicable rules of any securities exchange or interdealer quotation system. The Potential Relationship Party further agrees that,\nwithout the prior written consent of the Company (which shall not be unreasonably withheld or denied), the Potential Relationship Party and the\nPotential Relationship Party’s Representatives will not, directly or indirectly, consult or share Confidential Information or Discussion\nInformation with, or enter into any agreement, arrangement or understanding, or any discussions which might lead to any such agreement,\narrangement or understanding, with any co-investor, source of equity financing or other person (other than the Company) regarding a Possible\nTransaction, including discussions or other communications with any prospective bidder for the Company with respect to (i) whether or not the\nReceiving Party or such other prospective bidder will make a bid or offer for the Disclosing Party or (ii) the price that the Receiving Party or\nsuch other bidder may bid or offer for the Disclosing Party.\n(d) To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or\nany other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the Parties understand and\nagree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the\nsharing of such material is not intended to, and will not, waive or diminish in any way the confidentiality of such material or its continued\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a\nParty that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege will remain entitled to\nsuch protection under these privileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any Party to\nreveal material subject to the attorney-client privilege, work product doctrine or any other applicable privilege.\nPage3of11\nSection 4. Required Actions if Disclosure is Legally Sought or Compelled. In the event that the Receiving Party or any of the Receiving Party’s\nRepresentatives are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings,\nsubpoena, civil investigative demand or other similar process) to disclose any of the Confidential Information or Discussion Information, the\nReceiving Party will provide the Disclosing Party with prompt written notice of any such request or requirement so that the Disclosing Party may\nin its sole discretion seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. If, in\nthe absence of a protective order or other remedy or the receipt of a waiver by the Disclosing Party, the Receiving Party or any of the Receiving\nParty’s Representatives are nonetheless, in the written opinion of outside legal counsel, legally compelled to disclose Confidential Information or\nDiscussion Information to any tribunal, the Receiving Party or the Receiving Party’s Representatives may, without liability hereunder, disclose to\nsuch tribunal only that portion of the Confidential Information or Discussion Information which such counsel advises the Receiving Party is\nlegally required to be disclosed, provided that the Receiving Party will use the Receiving Party’s reasonable best efforts to preserve the\nconfidentiality of the Confidential Information and the Discussion Information, including by cooperating with the Disclosing Party to obtain an\nappropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information and the\nDiscussion Information by such tribunal; and provided further that the Receiving Party will promptly notify the Disclosing Party of (i) the\nReceiving Party’s determination to make such disclosure and (ii) the nature, scope and contents of such disclosure.\nSection 5. Return and Destruction of Confidential Information. In the event that the Receiving Party decides not to proceed with a Possible\nTransaction, the Receiving Party will promptly inform the Disclosing Party of that decision. In that case, or at any time upon the request of the\nDisclosing Party in its sole discretion and for any reason, the Receiving Party will as directed by the Disclosing Party promptly deliver, at the\nReceiving Party’s expense, to the Disclosing Party or destroy all Confidential Information furnished to the Receiving Party or the Receiving\nParty’s Representatives by or on behalf of the Disclosing Party pursuant hereto. In the event of such a decision or request, all other Confidential\nInformation prepared by the Receiving Party or on the Receiving Party’s behalf will be returned or destroyed and, upon the Disclosing Party’s\nrequest, the Receiving Party will provide the Disclosing Party with prompt written confirmation of the Receiving Party’s compliance with this\nparagraph; provided, however, that\n(a) if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material will not be destroyed until the\nproceeding is settled or a final judgment with respect thereto has been rendered;\n(b) the Receiving Party will not, in connection with the foregoing obligations, be required to identify or delete Confidential Information\nheld electronically in archive or back-up systems in accordance with general systems archiving or backup policies and further provided that the\nReceiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such Confidential\nInformation so archived or backed-up;\n(c) the Receiving Party will not be obligated to return or destroy Confidential Information of the Disclosing Party to the extent the\nReceiving Party is required to retain a copy pursuant to applicable law; and\n(d) one copy of all Confidential Information may be kept by the Receiving Party’s outside counsel, if any, and such Confidential\nInformation shall be fully protected by attorney-client privilege.\nNotwithstanding the return, destruction or continued possession pursuant to the terms of this Section 5 of the Confidential Information, the\nReceiving Party and the Receiving Party’s Representatives will continue to be bound by the Receiving Party’s obligations of confidentiality and\nother obligations and agreements hereunder.\nSection 6. No Agreement. Each Patty understands and agrees that no contract or agreement providing for any Possible Transaction will be\ndeemed to exist between the Parties unless and until a final definitive agreement has been executed and delivered, and each Party hereby waives,\nin advance, any claims (including breach of\nPage4of11\ncontract) in connection with any Possible Transaction unless and until the Parties will have entered into a final definitive agreement. The Parties\nalso agree that unless and until a final definitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will\nbe under any legal obligation of any kind whatsoever with respect to such a Possible Transaction by virtue of this Agreement, except for the\nmatters specifically agreed to herein. The Company further reserves the right, in its sole discretion, with due notice to reject any and all proposals\nmade by the Potential Relationship Party or any of its Representatives with regard to a Possible Transaction to determine not to engage in\ndiscussions or negotiations and to terminate discussions and negotiations with the Potential Relationship Party at any time, and to conduct,\ndirectly or through any of its Representatives, any process for any transaction involving the Company or any of its subsidiaries, if and as they in\ntheir sole discretion determine (including negotiating with any other interested parties and entering into a definitive agreement without prior\nnotice to the Potential Relationship Party or any other person).\nSection 7. Representations and Warranties. Each Party represents and warrants to the other Party that it has the right to enter into this\nAgreement and that this Agreement is a valid and binding obligation of such Party relating to the matters herein. Each Party further represents\nand warrants that the terms of this Agreement are not inconsistent with other contractual obligations, express or implied, which such Party may\nhave or any law applicable to such Party or its business. The Receiving Party understands, acknowledges and agrees that neither the Disclosing\nParty nor any of its Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the\nConfidential Information by virtue of this Agreement. The Receiving Party agrees that neither the Disclosing Party nor any of its Representatives\nwill have any liability to the Receiving Party or to any of the Receiving Party’s Representatives relating to or resulting from the use of the\nConfidential Information or any errors therein or omissions therefrom.\nSection 8. Material Non-Public Information. The Receiving Party acknowledges and agrees that the Receiving Party is aware (and that the\nReceiving Party’s Representatives are aware or, upon receipt of any Confidential Information or Discussion Information, will be advised by the\nReceiving Party) that (a) the Confidential Information being furnished to the Receiving Party or the Receiving Party’s Representatives contains\nmaterial, non-public information regarding the Disclosing Party and (b) the United States and other non-U.S . securities laws prohibit any persons\nwho have material, nonpublic information concerning the matters which are the subject of this Agreement, including the Discussion Information,\nfrom purchasing or selling securities of a company which may be a party to a transaction of the type contemplated by this Agreement or from\ncommunicating such information to any person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or\nsell such securities in reliance upon such information.\nSection 9. No Solicitation. In consideration of the Confidential Information being furnished hereunder, each Party agrees that, for a period of\nsix months from the date of this Agreement, such Party will not, directly or indirectly, solicit for employment with such Party or any of its\nAffiliates, any of the officers or employees of the other Party or its Affiliates (a) with whom such Party has had contact during the evaluation of a\nPossible Transaction or (b) who were identified by name and function to such Party by an officer or employee of the other Party with whom such\nParty or its Representatives had contact during the evaluation of a Possible Transaction. For the avoidance of doubt, employees whose names are\nprovided by the other Party in response to a request made by such Party or its Representatives during the evaluation of a Possible Transaction are\ncovered by this non-solicitation obligation. Notwithstanding the foregoing, nothing herein shall restrict or preclude either Party from (i) making\ngeneralized searches for employees (by use of advertisements in the media, the engagement of search firms or otherwise), (ii) continuing its\nordinary course hiring practices that are not targeted specifically at employees of the other Party, (iii) hiring an employee of the other Party who\nfirst initiates an employment discussion with such Party, in each case, so long as such Party has not violated the restrictions on solicitation\ncontained in this Agreement or (iv) if the employee is no more on the rolls of the Party.\nPage5of11\nSection 10. Standstill.\n(a) As of the date of this Agreement, neither the Potential Relationship Party nor any of the Potential Relationship Party’s Representatives\nacting on the Potential Relationship Party’s behalf, or any person with whom any of the foregoing may be deemed to be acting in concert with\nrespect to the Company or its securities, owns any securities of the Company to the best of their knowledge, information and belief and shall not\nown more than 5% during the tenure of this Agreement. The Potential Relationship Party agrees that during the Standstill Period, unless\nspecifically invited in writing by the Company, neither the Potential Relationship Party nor any of the Potential Relationship Party’s Affiliates,\nsubsidiaries or Representatives acting on the Potential Relationship Party’s behalf or on behalf of other persons acting in concert with the\nPotential Relationship Party will in any manner, directly or indirectly:\n(i) effect or seek, offer or propose (whether publicly or otherwise) to effect, or announce any intention to effect or cause or participate\nin or in any way assist, facilitate or encourage any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect\nor participate in: (i) any acquisition of any securities (or beneficial ownership thereof), or rights or options to acquire any securities (or\nbeneficial ownership thereof), or any assets, indebtedness or businesses of the Company or any of its subsidiaries or Affiliates; (ii) any\ntender or exchange offer, merger or other business combination involving the Company, any of the subsidiaries or Affiliates or assets of the\nCompany or its subsidiaries or its Affiliates constituting a significant portion of the consolidated assets of the Company and its subsidiaries\nor Affiliates, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company\nor any of its subsidiaries or Affiliates,\n(ii) make, or in any way participate in, directly or indirectly, (i) any “solicitation” of “proxies” (as such terms are used in the rules of\nthe Securities and Exchange Commission) to vote, or seek to advise or influence any person or entity with respect to the voting of any\nvoting securities of the Company or (ii) any demand for a copy of the Company’s stock ledger, list of stockholders or any other books and\nrecords of the Company;\n(iii) form, join or in any way participate in a “group” (as defined under the Exchange Act) with respect to the Company or otherwise\nact in concert with any person in respect of any such securities;\n(iv) otherwise act, alone or in concert with others, to seek representation on or to control or influence the management, Board of\nDirectors or policies of the Company or to obtain representation on the Board of Directors of the Company;\n(v) take any action which would or would reasonably be expected to force the Company to make a public announcement regarding\nany of the types of matters set forth in (i) above; or\n(vi) enter into any discussions or arrangements with any third party with respect to any of the foregoing.\n(b) Notwithstanding the foregoing, the provisions of ARTICLE I Section 10(a), the Potential Relationship Party or any of the Potential\nRelationship Party’s Affiliates, subsidiaries or Representatives acting on the Potential Relationship Party’s behalf may at any time and from time\nto time submit to the Board of Directors of the Company one or more offers, proposals or indications of interest related to a Possible Transaction\nthat would otherwise be prohibited by ARTICLE I Section 10(a), provided that each such submission is made on a confidential basis, does not\nstate an intention to make a public announcement related to the text or contents of such submission or discussion and is made in a manner that\ncould not reasonably be expected to cause the Company to need to make public disclosure thereof.\n(c) The Potential Relationship Party also agrees during the Standstill Period not to request that the Company or any of its Representatives,\ndirectly or indirectly, amend or waive any provision of this ARTICLE I Section 10.\n(d) The Potential Relationship Party agrees that, if at any time during the Standstill Period, the Potential Relationship Party or any of the\nPotential Relationship Party’s Affiliates or subsidiaries or Representatives acting on the Potential Relationship Party’s behalf are approached by\nany third party concerning the Potential Relationship Party’s or their participation in a transaction involving any assets, indebtedness or business\nof, or securities issued by, the Company or any of its subsidiaries, the Potential Relationship Party will promptly inform the Company of the\nnature of such transaction and the parties involved.\nPage6of11\n(e) The banks approached by the Potential Relationship Party for the purpose of financing would be subject to confidentiality obligations as\nset forth in said Section 3, without, however, requiring such recipient bank, or its representatives, to make the Standstill undertakings stipulated\nin the current Section 10 of the Agreement.\n(f) The non-solicitation and stand-still obligations under Sections 9 and 10 will cease to apply on completion of the transaction.\nSection 11. Miscellaneous.\n(a) Notices. All notices, requests, claims, demands and other communications hereunder will be given in writing and will be deemed given\nand effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile or e-mail of a .pdf, .tif, .gif,\n.jpeg or similar electronic attachment at the facsimile number or email address, respectively, specified for the relevant receiving Party before 5:30\np.m. (in the time zone of the receiving Party) on a business day (in the time zone of the receiving Party), (ii) the next business day after the date\nof transmission, if such notice or communication is delivered via facsimile or e-mail of a .pdf, .tif, .gif, .jpeg or similar electronic attachment at\nthe facsimile number or email address, respectively, specified for the relevant receiving Party on a day that is not a business day or later than 5:30\np.m. on any business day (in each case, in the time zone of the receiving Party), (iii) one business day following the date of deposit with a\nnationally recognized overnight courier service for delivery on the following business day, or (iv) upon actual receipt by the party to whom such\nnotice is required to be given, but if delivery is not accepted, then on the date delivery is refused. The addresses, facsimile numbers and email\naddresses for such notices and communications are those set forth below, or such other address, facsimile number or email address as may be\ndesignated in writing after the Effective Date, in the same manner, by any such person:\nif to the Potential Relationship Party:\nSUN PHARMACEUTICAL INDUSTRIES LTD\nAcme Plaza, Andheri – Kurla Road,\nAndheri – East, Mumbai – 400 059,\nMaharashtra, India\nAttention: Mr. Ashok I. Bhuta\nFacsimile: +91 22 6184 8686\nEmail: Ashok.Bhuta@sunpharma.com\nwith a copy (which will not constitute notice) to:\nS. H. Bathiya & Associates\n2, Tardeo AC Market,\n4th Floor, Tardeo Road,\nMumbai – 400 034\nAttention: Shailesh H. Bathiya\nFacsimile: +91 22 4355 8080\nEmail: shb@shbathiya.com\nif to the Company:\nInSite Vision Incorporation\n965 Atlantic Ave.\nAlameda, CA 94501\nAttention: Timothy Ruane\nFacsimile: (510) 865-5700\nEmail: TRuane@insite.com\nPage7of11\nwith a copy (which will not constitute notice) to:\nJones Day\n1755 Embarcadero Road\nPalo Alto, CA 94303\nAttention: Timothy Curry & Jonn Beeson\nFacsimile: 1-650-739-3900\nEmail: tcurry@jonesday.com & jbeeson@jonesday.com\n(b) Severability. If any provision of this Agreement is found to violate any statute, regulation, rule, order or decree of any governmental\nauthority, court, agency or exchange, such invalidity will not be deemed to affect any other provision of this Agreement or the validity of the\nremainder of this Agreement, and such invalid provision will be replaced with a valid provision that as closely as possible reflects the Parties’\nintent with respect to such invalid provision.\n(c) Entire Agreement. This Agreement contains the entire agreement between the Parties regarding its subject matter and supersedes all\nprior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter, provided that any\nconfidentiality or non-disclosure existing between the parties prior to the date of this Agreement will continue to apply to disclosures made prior\nto the date of this Agreement.\n(d) Successors. This Agreement will inure to the benefit of, and be enforceable by, the Parties and each of their successors and assigns.\n(e) Remedies. It is understood and agreed that money damages would not be an adequate remedy for any breach of this Agreement by a\nParty or any of its Representatives and that a Party will be entitled to equitable relief, including injunction and specific performance, as a remedy\nfor any such breach by the other Party. Such remedies will not be deemed to be the exclusive remedies for a breach of this Agreement but will be\nin addition to all other remedies available at law or in equity. Each Party further agrees not to raise as a defense or objection to the request or\ngranting of such relief that any breach of this Agreement is or would be compensable by an award of money damages, and the Parties agree to\nwaive any requirements for the securing or posting of any bond in connection with such remedy. In the event of litigation relating to this\nAgreement, if a court of competent jurisdiction determines (in a judgment not subject to further appeal or for which the time for appeal has\nexpired), that a Party or any of its Representatives has breached this Agreement, then such Party will be liable and pay to the other Party the\nreasonable legal fees incurred by the other Party in connection with such litigation, including any appeal therefrom. If such court determines (in a\njudgment not subject to further appeal or for which the time for appeal has expired) that neither Party or its Representatives has breached this\nAgreement, then each Party will pay their own legal fees incurred in connection with such litigation and any appeal therefrom.\n(f) Third Party Beneficiaries. Each Party agrees that nothing herein expressed or implied is intended to confer upon or give any rights or\nremedies to any other person under or by reason of this Agreement.\n(g) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware applicable to\nagreements made and to be performed entirely within the State of Delaware, without regard to the conflict of law provisions that would result in\nthe application of the laws of any other jurisdiction.\n(h) Forum. Each Party irrevocably and unconditionally submits to the exclusive personal jurisdiction of the chancery courts of the State of\nDelaware or, if the chancery courts of the State of Delaware lack jurisdiction, any federal court located in the State of Delaware (and, in each\ncase, any appellate court from any thereof), for any actions, suits or proceedings arising out of or relating to this Agreement (and each Party\nagrees not to commence any action, suit or proceeding relating thereto except in such courts, and further agrees that service of any process,\nsummons, notice or document by U.S. registered mail to such Party’s address set forth above will be effective service of process for any action,\nsuit or proceeding brought against such Party in any such court). Each Party irrevocably and unconditionally waives any objection that such\nParty may now or hereafter have to the laying of venue of any action, suit or proceeding arising out of this Agreement in the chancery courts of\nthe State of\nPage8of11\nDelaware or, if the chancery courts of the State of Delaware lack jurisdiction, any Federal court located in the State of Delaware (and, in each\ncase, any appellate court from any thereof), and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court\nthat any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n(i) Waiver of Jury Trial. EACH OF THE PARTIES WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY\nRIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,\nUNDER OR IN CONNECTION WITH THIS AGREEMENT. Each of the Parties (A) certifies that no representative, agent or attorney of the\nother Party has represented, expressly or otherwise, that the other Party would not, in the event of litigation, seek to enforce the foregoing waiver\nand (B) acknowledges that it has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this\nARTICLE I Section 11(i).\n(j) Counterparts. This Agreement may be executed and delivered (including by facsimile transmission or by e-mail of a .pdf, .tif, .jpeg or\nsimilar attachment in two or more counterparts, and by the different Parties in separate counterparts, each of which when executed and delivered\nwill be deemed to be an original but all of which taken together will constitute one and the same agreement. Any such counterpart, to the extent\ndelivered using facsimile transmission or by e-mail of a .pdf, .tif, .jpeg or similar attachment will be treated in all manner and respects as an\noriginal executed counterpart and will be considered to have the same binding legal effect as if it were the original signed version thereof\ndelivered in person.\n(k) No Waiver of Rights. No failure or delay by either Party in exercising any right, power or privilege under this Agreement will operate\nas a waiver, nor will any single or partial exercise under this Agreement preclude any other or further exercise under this Agreement or the\nexercise of any other right, power or privilege hereunder.\n(l) No Modification. No provision in this Agreement can be waived, modified or amended except by written consent of the Party against\nwhom enforcement is sought, which consent will specifically refer to the provision to be waived, modified or amended and will explicitly make\nsuch waiver, modification or amendment.\n(m) Inquiries. All inquiries for information about the Company and its subsidiaries and communications with the Company will be made\nthrough [\n] or through an employee or person who has contacted the Potential Relationship Party for and on behalf of the Company.\nNeither the Potential Relationship Party nor any of its Representatives will contact any third party with whom the Company or any of its\nsubsidiaries has a business or other relationship (including any director, officer, employee, customer, supplier, stockholder or creditor of the\nCompany or any of its subsidiaries) in connection with a Possible Transaction without the Company’s prior written consent unless such person\nhas contacted the Potential Relationship Party for and on behalf of the Company.\n(n) Term. This Agreement and all obligations will terminate three years from the date of this Agreement.\n(o) General Interpretation. Each of the Parties has been represented by independent counsel of its choice throughout all negotiations that\nhave preceded the execution of this Agreement, and each has executed this Agreement with the advice of said independent counsel. Each Party\nand its counsel participated in the preparation of this Agreement, and any and all drafts of this Agreement exchanged among the Parties will be\ndeemed the work product of all of the Parties and may not be construed against any Party by reason of its drafting or preparation. Each of the\nParties waives the application of any law or rule of construction providing that ambiguities in an agreement or other document will be construed\nagainst the party drafting such agreement or document. In this Agreement, except to the extent otherwise provided or that the context otherwise\nrequires:\n(i) the headings in this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this\nAgreement;\nPage9of11\n(ii) whenever the words “include,” “includes” or “including” are used in this Agreement, they are deemed to be followed by the\nwords “without limitation;”\n(iii) the use of “or” is not intended to be exclusive, unless expressly indicated otherwise; and\n(iv) words importing the singular include the plural and vice versa and words importing gender include all genders.\n[Remainder of Page Intentionally Left Blank — Signature Page Follows]\nPage 10 of 11\nINSITE VISION INCORPORATION\nBy: /s/ Lyle Bowman\nName: Lyle Bowman\nTitle: Vice President\nSUN PHARMACEUTICAL INDUSTRIES LTD\nBy: /s/ Uday Baldota\nName: Uday Baldota\nTitle: Senior Vice President
+c6ea3c2b6270e539f43a6907ccc7cf4c.pdf	effective_date jurisdiction party term	Section 1.\nSection 2.\n2.1\nEX-10 .10 6 lwlg_ex10z10.htm FORM OF DIRECTOR'S NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.10\nDIRECTOR’S NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT made as of [_____________], by and between Lightwave Logic, Inc., located at 369\nInverness Parkway, Suite 350, Englewood, CO 80112 (the “Company”); and [___________] (“Director”) whose\naddress is [______________________________] .\nWHEREAS, Company is developing next generation proprietary photonic devices that are based on its advanced\nelectro-optical polymer material systems, which involves the development and utilization of information not generally\nknown in the industry or industries in which the Company is or may become engaged.\nWHEREAS, [the Company desires to appoint the Director as]/[the Director is] a member of the Company’s\nBoard of Directors [and the Director accepts such appointment];\nWHEREAS, in performing his services as a director for Company, Director will necessarily be given access to\n“secret information” (defined below), which will be identified by Company as such; and\nWHEREAS, the use of the secret information by, or its disclosure to, any person or organization other than\nCompany and its employees or Director would be highly detrimental and damaging to Company.\nNOW THEREFORE, with the foregoing recitals being incorporated herein by reference and deemed an\nessential part hereof and in consideration of the mutual promises, covenants and conditions contained herein, the parties\nagree as follows:\nSecret Information\nFor the purposes of this Agreement, “secret information” shall mean information relating to the Company’s\nmethods, concepts, ideas, products, and services which is of a proprietary or confidential nature, whether communicated\norally or in writing, data or sample form, including, without limitation, concepts, techniques, processes, designs, cost\ndata, computer programs, and other know-how that is disclosed to the Director by the Company.\nNondisclosure of Secret Information\nNon-disclosure. Director shall not, without the prior written consent of the Company, disclose such secret\ninformation to any third party, including any third party consultant(s). Further, Director shall only use the secret\ninformation pursuant to and for the purpose of performing his services as a director for Company. The parties\nacknowledge that irreparable injury and damage will result from disclosure of the secret information to unauthorized\nthird parties or from utilization of the secret information for any purpose other than the purposes described herein. Also,\nDirector shall take all reasonable steps to ensure that the secret information in the Director ’s possession remains\nconfidential.\n1\n(a)\n(b)\n(c)\n(d)\n(e)\n2.2\n2.3\nSection 3.\nThe foregoing restrictions shall not be applicable to any information which:\nthe Director can show was previously known to him prior to receipt from the Company, without breach of\nan obligation of confidence to any third party;\nis now, or hereafter, comes into the public domain as, for example, by publications, including issued\nUnited States and foreign patents, or is otherwise legally known or available to the public through sources\nother than the Director;\nis subsequently legally disclosed to the Director by a third party not owing obligations of confidence to\nthe Company, or\nis, or will be, developed independently by the Director solely through his affiliates which have not been\nexposed directly or indirectly to the secret information, or\nthe Director is obligated to produce as a result of a court order or other valid and legally enforceable\nmandate, provided that the Company has been given notice thereof and an opportunity to waive its rights\nor to seek a protective order or other appropriate remedy.\nFor the purposes of this Section 2, disclosures which provide specific detailed information shall not be deemed to\nbe within the foregoing exceptions merely because they are embraced by more general disclosures in the public domain\nor in the Director ’s possession. In addition, any combination of features shall not be deemed to be within the foregoing\nexceptions merely because information about individual components are separately in the public domain or in the\nDirector’s possession, but only if the combination itself and its principle of operation are in the public domain or in the\nlawful possession of the Director without restriction on disclosure.\nReturn of documents. Upon termination of Director ’s position as a member of the Company’s Board Of\nDirectors, Director agrees that all documents, records, notebooks and similar repositories of or containing secret\ninformation, including copies of such materials, then in its possession, whether prepared by it or others, will be returned\nto the Company.\nDirector acknowledges that the secret information belongs to Company, that Company claims the secret\ninformation comprises trade secrets, claims that the secret information is confidential to Company and that each of the\nobligations assumed by Director in this, and the other paragraphs contained herein, is a material inducement to disclose\nthe secret information to Director.\nNo License Granted\nNothing herein shall be deemed to confer on the Director a license or other right to use the secret information\ndisclosed hereunder for any purpose other than the purposes expressly stated in this Agreement. Specifically and\nwithout limitation, Director shall have no license or\n2\nSection 4.\nSection 5.\nSection 6.\nWitness\n__________________\nName:_____________\nWitness\n__________________\nName:_____________\nright to use any secret information in developing any invention, discovery, know-how, trade secret, patent, trademark, or\ncopyright.\nEnforcement\nIn the event that the Director shall breach this Agreement, or in the event that such breach appears to be an\nimminent possibility, Company shall be entitled to all legal and equitable remedies afforded it by law as a result of the\nbreach (including an injunction restraining the party or parties about to commit any breach of this Agreement, or who\nhave committed a breach of it, without showing or proving any actual damage sustained by Company), and may, in\naddition to any and all other forms of relief, recover from Director all reasonable costs and attorneys' fees encountered\nby it in seeking any such remedy.\nBinding Effect\nThis Agreement shall be binding upon the parties to this Agreement and upon their respective executors,\nadministrators, legal representatives, successors and assigns.\nApplicable Law\nThis Agreement shall be governed for all purposes by the laws of the State of Colorado, with Denver County,\nColorado as the agreed upon proper venue. The Company shall retain all rights and remedies afforded it under the patent,\ntrademark, copyright and other laws of the United States and the States thereof, and of other countries, including without\nlimitation any laws designed to protect proprietary or secret information.\nIn witness, the parties executed this Agreement on the date first shown above.\nDirector\n________________________\nName: __________________\nCompany\nBy:________________________\nName: __________________\nTitle: __________________\n3	EX-10.10 6 Iwlg_ex10z10.htm FORM OF DIRECTOR'S NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.10\nDIRECTOR’S NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT made as of [ ], by and between Lightwave Logic, Inc., located at 369\nInverness Parkway, Suite 350, Englewood, CO 80112 (the “Company™); and [ ] (“Director”) whose\naddress is [ .\nWHEREAS, Company is developing next generation proprietary photonic devices that are based on its advanced\nelectro-optical polymer material systems, which involves the development and utilization of information not generally\nknown in the industry or industries in which the Company is or may become engaged.\nWHEREAS, [the Company desires to appoint the Director as]/[the Director is] a member of the Company’s\nBoard of Directors [and the Director accepts such appointment];\nWHEREAS, in performing his services as a director for Company, Director will necessarily be given access to\n“secret information” (defined below), which will be identified by Company as such; and\nWHEREAS, the use of the secret information by, or its disclosure to, any person or organization other than\nCompany and its employees or Director would be highly detrimental and damaging to Company.\nNOW THEREFORE, with the foregoing recitals being incorporated herein by reference and deemed an\nessential part hereof and in consideration of the mutual promises, covenants and conditions contained herein, the parties\nagree as follows:\nSection 1. Secret Information\nFor the purposes of this Agreement, “secret information” shall mean information relating to the Company’s\nmethods, concepts, ideas, products, and services which is of a proprietary or confidential nature, whether communicated\norally or in writing, data or sample form, including, without limitation, concepts, techniques, processes, designs, cost\ndata, computer programs, and other know-how that is disclosed to the Director by the Company.\nSection 2. Nondisclosure of Secret Information\n2.1  Non-disclosure. Director shall not, without the prior written consent of the Company, disclose such secret\ninformation to any third party, including any third party consultant(s). Further, Director shall only use the secret\ninformation pursuant to and for the purpose of performing his services as a director for Company. The parties\nacknowledge that irreparable injury and damage will result from disclosure of the secret information to unauthorized\nthird parties or from utilization of the secret information for any purpose other than the purposes described herein. Also,\nDirector shall take all reasonable steps to ensure that the secret information in the Director’s possession remains\nconfidential.\nThe foregoing restrictions shall not be applicable to any information which:\n(@)  the Director can show was previously known to him prior to receipt from the Company, without breach of\nan obligation of confidence to any third party;\n(b) is now, or hereafter, comes into the public domain as, for example, by publications, including issued\nUnited States and foreign patents, or is otherwise legally known or available to the public through sources\nother than the Director;\n(c)  is subsequently legally disclosed to the Director by a third party not owing obligations of confidence to\nthe Company, or\n(d) is, or will be, developed independently by the Director solely through his affiliates which have not been\nexposed directly or indirectly to the secret information, or\n(e)  the Director is obligated to produce as a result of a court order or other valid and legally enforceable\nmandate, provided that the Company has been given notice thereof and an opportunity to waive its rights\nor to seek a protective order or other appropriate remedy.\nFor the purposes of this Section 2, disclosures which provide specific detailed information shall not be deemed to\nbe within the foregoing exceptions merely because they are embraced by more general disclosures in the public domain\nor in the Director’s possession. In addition, any combination of features shall not be deemed to be within the foregoing\nexceptions merely because information about individual components are separately in the public domain or in the\nDirector’s possession, but only if the combination itself and its principle of operation are in the public domain or in the\nlawful possession of the Director without restriction on disclosure.\n2.2 Return of documents. Upon termination of Director’s position as a member of the Company’s Board Of\nDirectors, Director agrees that all documents, records, notebooks and similar repositories of or containing secret\ninformation, including copies of such materials, then in its possession, whether prepared by it or others, will be returned\nto the Company.\n2.3  Director acknowledges that the secret information belongs to Company, that Company claims the secret\ninformation comprises trade secrets, claims that the secret information is confidential to Company and that each of the\nobligations assumed by Director in this, and the other paragraphs contained herein, is a material inducement to disclose\nthe secret information to Director.\nSection 3. No License Granted\nNothing herein shall be deemed to confer on the Director a license or other right to use the secret information\ndisclosed hereunder for any purpose other than the purposes expressly stated in this Agreement. Specifically and\nwithout limitation, Director shall have no license or\nright to use any secret information in developing any invention, discovery, know-how, trade secret, patent, trademark, or\ncopyright.\nSection 4. Enforcement\nIn the event that the Director shall breach this Agreement, or in the event that such breach appears to be an\nimminent possibility, Company shall be entitled to all legal and equitable remedies afforded it by law as a result of the\nbreach (including an injunction restraining the party or parties about to commit any breach of this Agreement, or who\nhave committed a breach of it, without showing or proving any actual damage sustained by Company), and may, in\naddition to any and all other forms of relief, recover from Director all reasonable costs and attorneys' fees encountered\nby it in seeking any such remedy.\nSection 5.  Binding Effect\nThis Agreement shall be binding upon the parties to this Agreement and upon their respective executors,\nadministrators, legal representatives, successors and assigns.\nSection 6.  Applicable Law\nThis Agreement shall be governed for all purposes by the laws of the State of Colorado, with Denver County,\nColorado as the agreed upon proper venue. The Company shall retain all rights and remedies afforded it under the patent,\ntrademark, copyright and other laws of the United States and the States thereof, and of other countries, including without\nlimitation any laws designed to protect proprietary or secret information.\nIn witness, the parties executed this Agreement on the date first shown above.\nWitness Director\nName: Name:\nWitness Company\n- By:\nName: Name:\nTitle:	EX-10.10 lwlg_ex10z10.htm FORM OF DIRECTOR'S NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.10\nDIRECTOR'S NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT made as of\nby and between Lightwave Logic, Inc., located at 369\nInverness Parkway, Suite 350, Englewood, CO 80112 (the "Company"); and ("Director")\nwhose\naddress is\nWHEREAS, Company is developing next generation proprietary photonic devices that are based on its advanced\nelectro-optical polymer material systems, which involves the development and utilization of information not generally\nknown in the industry or industries in which the Company is or may become engaged.\nWHEREAS, [the Company desires to appoint the Director as]/[the Director is] a member of the Company's\nBoard of Directors [and the Director accepts such appointment];\nWHEREAS, in performing his services as a director for Company, Director will necessarily be given access to\n"secret information" (defined below), which will be identified by Company as such; and\nWHEREAS, the use of the secret information by, or its disclosure to, any person or organization other than\nCompany and its employees or Director would be highly detrimental and damaging to Company.\nNOW THEREFORE, with the foregoing recitals being incorporated herein by reference and deemed an\nessential part hereof and in consideration of the mutual promises, covenants and conditions contained herein, the parties\nagree as follows:\nSection 1.\nSecret Information\nFor the purposes of this Agreement, "'secret information" shall mean information relating to the Company's\nmethods, concepts, ideas, products, and services which is of a proprietary or confidential nature, whether communicated\norally or in writing, data or sample form, including, without limitation, concepts, techniques, processes, designs, cost\ndata, computer programs, and other know-how that is disclosed to the Director by the Company.\nSection 2.\nNondisclosure of Secret Information\n2.1 Non-disclosure. Director shall not, without the prior written consent of the Company, disclose such secret\ninformation to any third party, including any third party consultant(s). Further, Director shall only use the secret\ninformation pursuant to and for the purpose of performing his services as a director for Company. The parties\nacknowledge that irreparable injury and damage will result from disclosure of the secret information to unauthorized\nthird parties or from utilization of the secret information for any purpose other than the purposes described herein. Also,\nDirector shall take all reasonable steps to ensure that the secret information in the Director's possession remains\nconfidential.\n1\nThe foregoing restrictions shall not be applicable to any information which:\n(a)\nthe Director can show was previously known to him prior to receipt from the Company, without breach of\nan obligation of confidence to any third party;\n(b)\nis now, or hereafter, comes into the public domain as, for example, by publications, including issued\nUnited States and foreign patents, or is otherwise legally known or available to the public through sources\nother than the Director;\n(c)\nis subsequently legally disclosed to the Director by a third party not owing obligations of confidence to\nthe Company, or\n(d)\nis, or will be, developed independently by the Director solely through his affiliates which have not been\nexposed directly or indirectly to the secret information, or\n(e)\nthe Director is obligated to produce as a result of a court order or other valid and legally enforceable\nmandate, provided that the Company has been given notice thereof and an opportunity to waive its rights\nor to seek a protective order or other appropriate remedy.\nFor the purposes of this Section 2, disclosures which provide specific detailed information shall not be deemed to\nbe within the foregoing exceptions merely because they are embraced by more general disclosures in the public domain\nor in the Director's possession. In addition, any combination of features shall not be deemed to be within the foregoing\nexceptions merely because information about individual components are separately in the public domain or in the\nDirector's possession, but only if the combination itself and its principle of operation are in the public domain or in the\nlawful possession of the Director without restriction on disclosure.\n2.2 Return of documents. Upon termination of Director's position as a member of the Company's Board Of\nDirectors, Director agrees that all documents, records, notebooks and similar repositories of or containing secret\ninformation, including copies of such materials, then in its possession, whether prepared by it or others, will be returned\nto the Company.\n2.3\nDirector acknowledges that the secret information belongs to Company, that Company claims the secret\ninformation comprises trade secrets, claims that the secret information is confidential to Company and that each of the\nobligations assumed by Director in this, and the other paragraphs contained herein, is a material inducement to disclose\nthe secret information to Director.\nSection 3.\nNo License Granted\nNothing herein shall be deemed to confer on the Director a license or other right to use the secret information\ndisclosed hereunder for any purpose other than the purposes expressly stated in this Agreement. Specifically and\nwithout limitation, Director shall have no license or\n2\nright to use any secret information in developing any invention, discovery, know-how, trade secret, patent, trademark, or\ncopyright.\nSection 4. Enforcement\nIn the event that the Director shall breach this Agreement, or in the event that such breach appears to be an\nimminent possibility, Company shall be entitled to all legal and equitable remedies afforded it by law as a result of the\nbreach (including an injunction restraining the party or parties about to commit any breach of this Agreement, or who\nhave committed a breach of it, without showing or proving any actual damage sustained by Company), and may, in\naddition to any and all other forms of relief, recover from Director all reasonable costs and attorneys' fees encountered\nby it in seeking any such remedy.\nSection 5.\nBinding Effect\nThis Agreement shall be binding upon the parties to this Agreement and upon their respective executors,\nadministrators, legal representatives, successors and assigns.\nSection 6.\nApplicable Law\nThis Agreement shall be governed for all purposes by the laws of the State of Colorado, with Denver County,\nColorado as the agreed upon proper venue. The Company shall retain all rights and remedies afforded it under the patent,\ntrademark, copyright and other laws of the United States and the States thereof, and of other countries, including without\nlimitation any laws designed to protect proprietary or secret information.\nIn witness, the parties executed this Agreement on the date first shown above.\nWitness\nDirector\nName:\nName:\nWitness\nCompany\nBy:\nName:\nName:\nTitle:\n3	Section 1.\nSection 2.\n2.1\nEX-10 .10 6 lwlg_ex10z10.htm FORM OF DIRECTOR'S NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.10\nDIRECTOR’S NON-DISCLOSURE AGREEMENT\nTHIS AGREEMENT made as of [_____________], by and between Lightwave Logic, Inc., located at 369\nInverness Parkway, Suite 350, Englewood, CO 80112 (the “Company”); and [___________] (“Director”) whose\naddress is [______________________________] .\nWHEREAS, Company is developing next generation proprietary photonic devices that are based on its advanced\nelectro-optical polymer material systems, which involves the development and utilization of information not generally\nknown in the industry or industries in which the Company is or may become engaged.\nWHEREAS, [the Company desires to appoint the Director as]/[the Director is] a member of the Company’s\nBoard of Directors [and the Director accepts such appointment];\nWHEREAS, in performing his services as a director for Company, Director will necessarily be given access to\n“secret information” (defined below), which will be identified by Company as such; and\nWHEREAS, the use of the secret information by, or its disclosure to, any person or organization other than\nCompany and its employees or Director would be highly detrimental and damaging to Company.\nNOW THEREFORE, with the foregoing recitals being incorporated herein by reference and deemed an\nessential part hereof and in consideration of the mutual promises, covenants and conditions contained herein, the parties\nagree as follows:\nSecret Information\nFor the purposes of this Agreement, “secret information” shall mean information relating to the Company’s\nmethods, concepts, ideas, products, and services which is of a proprietary or confidential nature, whether communicated\norally or in writing, data or sample form, including, without limitation, concepts, techniques, processes, designs, cost\ndata, computer programs, and other know-how that is disclosed to the Director by the Company.\nNondisclosure of Secret Information\nNon-disclosure. Director shall not, without the prior written consent of the Company, disclose such secret\ninformation to any third party, including any third party consultant(s). Further, Director shall only use the secret\ninformation pursuant to and for the purpose of performing his services as a director for Company. The parties\nacknowledge that irreparable injury and damage will result from disclosure of the secret information to unauthorized\nthird parties or from utilization of the secret information for any purpose other than the purposes described herein. Also,\nDirector shall take all reasonable steps to ensure that the secret information in the Director ’s possession remains\nconfidential.\n1\n(a)\n(b)\n(c)\n(d)\n(e)\n2.2\n2.3\nSection 3.\nThe foregoing restrictions shall not be applicable to any information which:\nthe Director can show was previously known to him prior to receipt from the Company, without breach of\nan obligation of confidence to any third party;\nis now, or hereafter, comes into the public domain as, for example, by publications, including issued\nUnited States and foreign patents, or is otherwise legally known or available to the public through sources\nother than the Director;\nis subsequently legally disclosed to the Director by a third party not owing obligations of confidence to\nthe Company, or\nis, or will be, developed independently by the Director solely through his affiliates which have not been\nexposed directly or indirectly to the secret information, or\nthe Director is obligated to produce as a result of a court order or other valid and legally enforceable\nmandate, provided that the Company has been given notice thereof and an opportunity to waive its rights\nor to seek a protective order or other appropriate remedy.\nFor the purposes of this Section 2, disclosures which provide specific detailed information shall not be deemed to\nbe within the foregoing exceptions merely because they are embraced by more general disclosures in the public domain\nor in the Director ’s possession. In addition, any combination of features shall not be deemed to be within the foregoing\nexceptions merely because information about individual components are separately in the public domain or in the\nDirector’s possession, but only if the combination itself and its principle of operation are in the public domain or in the\nlawful possession of the Director without restriction on disclosure.\nReturn of documents. Upon termination of Director ’s position as a member of the Company’s Board Of\nDirectors, Director agrees that all documents, records, notebooks and similar repositories of or containing secret\ninformation, including copies of such materials, then in its possession, whether prepared by it or others, will be returned\nto the Company.\nDirector acknowledges that the secret information belongs to Company, that Company claims the secret\ninformation comprises trade secrets, claims that the secret information is confidential to Company and that each of the\nobligations assumed by Director in this, and the other paragraphs contained herein, is a material inducement to disclose\nthe secret information to Director.\nNo License Granted\nNothing herein shall be deemed to confer on the Director a license or other right to use the secret information\ndisclosed hereunder for any purpose other than the purposes expressly stated in this Agreement. Specifically and\nwithout limitation, Director shall have no license or\n2\nSection 4.\nSection 5.\nSection 6.\nWitness\n__________________\nName:_____________\nWitness\n__________________\nName:_____________\nright to use any secret information in developing any invention, discovery, know-how, trade secret, patent, trademark, or\ncopyright.\nEnforcement\nIn the event that the Director shall breach this Agreement, or in the event that such breach appears to be an\nimminent possibility, Company shall be entitled to all legal and equitable remedies afforded it by law as a result of the\nbreach (including an injunction restraining the party or parties about to commit any breach of this Agreement, or who\nhave committed a breach of it, without showing or proving any actual damage sustained by Company), and may, in\naddition to any and all other forms of relief, recover from Director all reasonable costs and attorneys' fees encountered\nby it in seeking any such remedy.\nBinding Effect\nThis Agreement shall be binding upon the parties to this Agreement and upon their respective executors,\nadministrators, legal representatives, successors and assigns.\nApplicable Law\nThis Agreement shall be governed for all purposes by the laws of the State of Colorado, with Denver County,\nColorado as the agreed upon proper venue. The Company shall retain all rights and remedies afforded it under the patent,\ntrademark, copyright and other laws of the United States and the States thereof, and of other countries, including without\nlimitation any laws designed to protect proprietary or secret information.\nIn witness, the parties executed this Agreement on the date first shown above.\nDirector\n________________________\nName: __________________\nCompany\nBy:________________________\nName: __________________\nTitle: __________________\n3
+c7012e8f9e3b200fe5f1f379ad0bce4b.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 13 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is entered into as of March 2, 2010 and is effective upon the date of first disclosure or signing, which ever occurs first,\nbetween Endo Pharmaceuticals Inc., whose main offices are located at 100 Endo Boulevard, Chadds Ford, Pennsylvania 19317, for itself and its\nsubsidiaries Endo Pharmaceuticals Solutions Inc. and Endo Pharmaceuticals Valera Inc., each of which shall be bound by this Agreement as if each\nhad separately executed this Agreement, (collectively “Endo”), and HealthTronics, Inc., located at 9825 Spectrum Dr. , Bldg. 3, Austin, TX 78717.\nWHEREAS, the parties hereto, wish to explore a mutually beneficial relationship, and in so doing, may disclose to each other certain non-public\nconfidential and proprietary information pertaining to such possible business relationship, as set forth below.\nNOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows:\n1. For purposes of this Agreement, “Confidential Information” shall mean all non-public and proprietary information that has been or will be\ndisclosed by one party, or one of its affiliates, to the other, or one of its affiliates, whether set forth orally or in writing which may relate to,\namong other things, their respective business interests, technical information, clinical data, product specifications, product development plans\nand ideas, marketing plans and ideas, manufacturing information or business operations.\n2. The parties hereby agree that the following shall not be considered Confidential Information subject to this Agreement:\n(a) information that, prior to the time of disclosure, is in the public domain;\n(b) information that, after disclosure becomes part of the public domain by publication or otherwise, provided that such publication is not\nin violation of this Agreement or, to receiving party’s knowledge, any other confidentiality agreement;\n(c) information that the receiving party can establish in writing was already known to it or was in its possession prior to the time of\ndisclosure and was not acquired, directly or indirectly, from the disclosing party;\n(d) information that the receiving party lawfully received from a third party, provided however, that such third party was not obligated to\nhold such information in confidence;\n(e) information that was independently developed by the receiving party without reference to any Confidential Information as established\nby appropriate documentation; and\n(f) information that the receiving party is compelled to disclose by a court or other tribunal of competent jurisdiction, provided however,\nthat in such case the receiving party shall immediately give as much advance notice as feasible to the disclosing party so that the\ndisclosing party may seek a protective order or other remedy from said court or tribunal. In any event, the receiving party shall\ndisclose only that portion of the Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed\nand will exercise reasonable efforts to ensure that any such information so disclosed will be accorded confidential treatment by said\ncourt or tribunal.\n3. The receiving party shall not use nor disclose to any third party Confidential Information of the disclosing party for any purpose other than for\nthe purposes set forth in this Agreement. The parties hereby agree to hold in strictest confidence any and all Confidential Information disclosed\nby one party to the other under the terms of this Agreement and shall use such information solely for the purpose of evaluating a potential\nbusiness relationship and if a business relationship is consummated, carrying out such business relationship.\n4. The receiving party will not disclose any such Confidential Information to any person other than to its affiliates, employees, agents,\nconsultants, directors and officers that have a need to know such information to effectuate the purpose of this Agreement and that such\naffiliates, employees, agents, consultants and officers shall be informed of this Confidentiality Agreement and shall be bound by a\nconfidentiality agreement containing terms at least as restrictive terms as those contained in this Agreement.\n5. Upon written request of the disclosing party, the receiving party shall return promptly to the disclosing party (or, at the receiving party’s\noption, destroy) all Confidential Information furnished to it, including any copies thereof and notes, extracts, or derivative materials based\nthereon (provided that if the receiving party so opts to destroy, the receiving party shall confirm and certify such destruction in writing to the\ndisclosing party); and until this Agreement is terminated or until the expiration of the confidentiality obligations set forth in this Agreement,\nshall keep confidential and not use in any way detrimental to the disclosing party any analyses, compilations, studies or other documents that\nreflect any of the Confidential Information. Notwithstanding the foregoing provision, the legal counsel of both parties may retain one copy of\nConfidential Information in its confidential files solely for archival purposes.\n6. Title to, and all rights emanating from the ownership of, all Confidential Information disclosed under this Agreement shall remain vested in the\ndisclosing party. Nothing herein shall be construed as granting any license or option, in favor of the receiving party, in such Confidential\nInformation under any patent, copyright and/or any other rights now or hereafter held by the disclosing party in or as a result of such\nConfidential Information other than as specifically agreed upon by the parties.\n7. Confidential Information shall remain subject to this Agreement for a period of five (5) years beyond the date of disclosure or generation of\nsuch Confidential Information.\n8. The execution and performance of this Agreement does not obligate the parties to enter into any other agreement or to perform any obligations\nother than as specified herein.\n9. The receiving party agrees that the disclosure of Confidential Information to any third party without the express written consent of the\ndisclosing party may cause irreparable harm to the disclosing party, and that any breach or threatened breach of this Agreement by the\nreceiving party will entitle the disclosing party to seek injunctive relief, in addition to any other legal remedies available to it, in any court of\ncompetent jurisdiction.\n10. No failure or delay by the disclosing party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n11. The parties hereby agree that this Agreement represents the entire agreement between the parties with respect to the subject matter hereof and\nsupersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the handling of Confidential\nInformation, whether written, oral, visual, audio or in any other medium whatsoever. This Agreement shall be governed by the laws of the\nCommonwealth of Pennsylvania without reference to its conflict of laws rules. This agreement may not be amended or in any manner modified\nexcept by a written instrument signed by authorized representatives of both parties. If any provision of this Agreement is found to be\nunenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the limited\nextent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein.\n12. This Agreement shall be binding on each party’s successors and assigns.\n13. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the\nsame agreement. Signatures to this Agreement transmitted by facsimile, by electronic mail in “portable document format” (“.pdf”), or by any\nother electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical\ndelivery of the paper document bearing the original signature.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nENDO PHARMACEUTICALS INC.\nHEALTHTRONICS, INC.\nBy: /s/ Doug Macpherson\nBy: /s/ Scott A. Herz\nDoug Macpherson\nName: Scott A. Herz\nVice President and Associate General Counsel\nTitle: VP - Corporate Development	EX-99.(D)(3) 13 dex99d3.htm CONFIDENTIALITY AGREEMENT Exhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is entered into as of March 2, 2010 and is effective upon the date of first disclosure or signing, which ever occurs first, between Endo Pharmaceuticals Inc., whose main offices are located at 100 Endo Boulevard, Chadds Ford, Pennsylvania 19317, for itself and its subsidiaries Endo Pharmaceuticals Solutions Inc. and Endo Pharmaceuticals Valera Inc., each of which shall be bound by this Agreement as if each had separately executed this Agreement, (collectively “Endo”), and HealthTronics, Inc., located at 9825 Spectrum Dr. , Bldg. 3, Austin, TX 78717. WHEREAS, the parties hereto, wish to explore a mutually beneficial relationship, and in so doing, may disclose to each other certain non-public confidential and proprietary information pertaining to such possible business relationship, as set forth below. NOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows: 1. For purposes of this Agreement, “Confidential Information” shall mean all non-public and proprietary information that has been or will be disclosed by one party, or one of its affiliates, to the other, or one of its affiliates, whether set forth orally or in writing which may relate to, among other things, their respective business interests, technical information, clinical data, product specifications, product development plans and ideas, marketing plans and ideas, manufacturing information or business operations. 2. The parties hereby agree that the following shall not be considered Confidential Information subject to this Agreement: (a)\n(b)\n()\n(d)\n(e)\n®\ninformation that, prior to the time of disclosure, is in the public domain;\ninformation that, after disclosure becomes part of the public domain by publication or otherwise, provided that such publication is not\nin violation of this Agreement or, to receiving party’s knowledge, any other confidentiality agreement;\ninformation that the receiving party can establish in writing was already known to it or was in its possession prior to the time of\ndisclosure and was not acquired, directly or indirectly, from the disclosing party;\ninformation that the receiving party lawfully received from a third party, provided however, that such third party was not obligated to\nhold such information in confidence;\ninformation that was independently developed by the receiving party without reference to any Confidential Information as established\nby appropriate documentation; and\ninformation that the receiving party is compelled to disclose by a court or other tribunal of competent jurisdiction, provided however,\nthat in such case the receiving party shall immediately give as much advance notice as feasible to the disclosing party so that the\ndisclosing party may seek a protective order or other remedy from said court or tribunal. In any event, the receiving party shall\ndisclose only that portion of the Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed\nand will exercise reasonable efforts to ensure that any such information so disclosed will be accorded confidential treatment by said\ncourt or tribunal.\n10. The receiving party shall not use nor disclose to any third party Confidential Information of the disclosing party for any purpose other than for\nthe purposes set forth in this Agreement. The parties hereby agree to hold in strictest confidence any and all Confidential Information disclosed\nby one party to the other under the terms of this Agreement and shall use such information solely for the purpose of evaluating a potential\nbusiness relationship and if a business relationship is consummated, carrying out such business relationship.\nThe receiving party will not disclose any such Confidential Information to any person other than to its affiliates, employees, agents,\nconsultants, directors and officers that have a need to know such information to effectuate the purpose of this Agreement and that such\naffiliates, employees, agents, consultants and officers shall be informed of this Confidentiality Agreement and shall be bound by a\nconfidentiality agreement containing terms at least as restrictive terms as those contained in this Agreement.\nUpon written request of the disclosing party, the receiving party shall return promptly to the disclosing party (or, at the receiving party’s\noption, destroy) all Confidential Information furnished to it, including any copies thereof and notes, extracts, or derivative materials based\nthereon (provided that if the receiving party so opts to destroy, the receiving party shall confirm and certify such destruction in writing to the\ndisclosing party); and until this Agreement is terminated or until the expiration of the confidentiality obligations set forth in this Agreement,\nshall keep confidential and not use in any way detrimental to the disclosing party any analyses, compilations, studies or other documents that\nreflect any of the Confidential Information. Notwithstanding the foregoing provision, the legal counsel of both parties may retain one copy of\nConfidential Information in its confidential files solely for archival purposes.\nTitle to, and all rights emanating from the ownership of, all Confidential Information disclosed under this Agreement shall remain vested in the\ndisclosing party. Nothing herein shall be construed as granting any license or option, in favor of the receiving party, in such Confidential\nInformation under any patent, copyright and/or any other rights now or hereafter held by the disclosing party in or as a result of such\nConfidential Information other than as specifically agreed upon by the parties.\nConfidential Information shall remain subject to this Agreement for a period of five (5) years beyond the date of disclosure or generation of\nsuch Confidential Information.\nThe execution and performance of this Agreement does not obligate the parties to enter into any other agreement or to perform any obligations\nother than as specified herein.\nThe receiving party agrees that the disclosure of Confidential Information to any third party without the express written consent of the\ndisclosing party may cause irreparable harm to the disclosing party, and that any breach or threatened breach of this Agreement by the\nreceiving party will entitle the disclosing party to seek injunctive relief, in addition to any other legal remedies available to it, in any court of\ncompetent jurisdiction.\nNo failure or delay by the disclosing party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n11. 12. 13. The parties hereby agree that this Agreement represents the entire agreement between the parties with respect to the subject matter hereof and\nsupersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the handling of Confidential\nInformation, whether written, oral, visual, audio or in any other medium whatsoever. This Agreement shall be governed by the laws of the\nCommonwealth of Pennsylvania without reference to its conflict of laws rules. This agreement may not be amended or in any manner modified\nexcept by a written instrument signed by authorized representatives of both parties. If any provision of this Agreement is found to be\nunenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the limited\nextent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein.\nThis Agreement shall be binding on each party’s successors and assigns.\nThis Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the\nsame agreement. Signatures to this Agreement transmitted by facsimile, by electronic mail in “portable document format” (“.pdf”), or by any\nother electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical\ndelivery of the paper document bearing the original signature.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. ENDO PHARMACEUTICALS INC. HEALTHTRONICS, INC.\nBy: /s/ Doug Macpherson By: /s/ Scott A. Herz\nDoug Macpherson Name: Scott A. Herz\nVice President and Associate General Counsel Title: VP - Corporate Development	EX-99.(D)(3) 13 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is entered into as of March 2, 2010 and is effective upon the date of first disclosure or signing, which ever occurs first,\nbetween Endo Pharmaceuticals Inc., whose main offices are located at 100 Endo Boulevard, Chadds Ford, Pennsylvania 19317, for itself and its\nsubsidiaries Endo Pharmaceuticals Solutions Inc. and Endo Pharmaceuticals Valera Inc., each of which shall be bound by this Agreement as if each\nhad separately executed this Agreement, (collectively "Endo"), and HealthTronics, Inc., located at 9825 Spectrum Dr. Bldg. 3, Austin, TX 78717.\nWHEREAS, the parties hereto, wish to explore a mutually beneficial relationship, and in so doing, may disclose to each other certain non-public\nconfidential and proprietary information pertaining to such possible business relationship, as set forth below.\nNOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows:\n1.\nFor purposes of this Agreement, "Confidential Information" shall mean all non-public and proprietary information that has been or will be\ndisclosed by one party, or one of its affiliates, to the other, or one of its affiliates, whether set forth orally or in writing which may relate to,\namong other things, their respective business interests, technical information, clinical data, product specifications, product development plans\nand ideas, marketing plans and ideas, manufacturing information or business operations.\n2.\nThe parties hereby agree that the following shall not be considered Confidential Information subject to this Agreement:\n(a)\ninformation that, prior to the time of disclosure, is in the public domain;\n(b)\ninformation that, after disclosure becomes part of the public domain by publication or otherwise, provided that such publication is not\nin violation of this Agreement or, to receiving party's knowledge, any other confidentiality agreement;\n(c)\ninformation that the receiving party can establish in writing was already known to it or was in its possession prior to the time of\ndisclosure and was not acquired, directly or indirectly, from the disclosing party;\n(d)\ninformation that the receiving party lawfully received from a third party, provided however, that such third party was not obligated to\nhold such information in confidence;\n(e)\ninformation that was independently developed by the receiving party without reference to any Confidentia Information as established\nby appropriate documentation; and\n(f)\ninformation that the receiving party is compelled to disclose by a court or other tribunal of competent jurisdiction, provided however,\nthat in such case the receiving party shall immediately give as much advance notice as feasible to the disclosing party so that the\ndisclosing party may seek a protective order or other remedy from said court or tribunal. In any event, the receiving party shall\ndisclose only that portion of the Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed\nand will exercise reasonable efforts to ensure that any such information so disclosed will be accorded confidential treatment by said\ncourt or tribunal.\n3.\nThe receiving party shall not use nor disclose to any third party Confidential Information of the disclosing party for any purpose other than\nfor\nthe purposes set forth in this Agreement. The parties hereby agree to hold in strictest confidence any and all Confidential Information disclosed\nby one party to the other under the terms of this Agreement and shall use such information solely for the purpose of evaluating a potential\nbusiness relationship and if a business relationship is consummated, carrying out such business relationship.\n4.\nThe receiving party will not disclose any such Confidential Information to any person other than to its affiliates, employees, agents,\nconsultants, directors and officers that have a need to know such information to effectuate the purpose of this Agreement and that such\naffiliates, employees, agents, consultants and officers shall be informed of this Confidentiality Agreement and shall be bound by\na\nconfidentiality agreement containing terms at least as restrictive terms as those contained in this Agreement.\n5.\nUpon written request of the disclosing party, the receiving party shall return promptly to the disclosing party (or, at the receiving party's\noption, destroy) all Confidential Information furnished to it, including any copies thereof and notes, extracts, or derivative materials based\nthereon (provided that if the receiving party so opts to destroy, the receiving party shall confirm and certify such destruction in writing to the\ndisclosing party); and until this Agreement is terminated or until the expiration of the confidentiality obligations set forth in this Agreement,\nshall keep confidential and not use in any way detrimental to the disclosing party any analyses, compilations, studies or other documents that\nreflect any of the Confidential Information. Notwithstanding the foregoing provision, the legal counsel of both parties may retain one copy\nof\nConfidential Information in its confidential files solely for archival purposes.\n6.\nTitle to, and all rights emanating from the ownership of, all Confidential Information disclosed under this Agreement shall remain vested in the\ndisclosing party. Nothing herein shall be construed as granting any license or option, in favor of the receiving party, in such Confidential\nInformation under any patent, copyright and/or any other rights now or hereafter held by the disclosing party in or as a result of such\nConfidential Information other than as specifically agreed upon by the parties.\n7.\nConfidential Information shall remain subject to this Agreement for a period of five (5) years beyond the date of disclosure or generation of\nsuch Confidential Information.\n8.\nThe execution and performance of this Agreement does not obligate the parties to enter into any other agreement or to perform any obligations\nother than as specified herein.\n9.\nThe receiving party agrees that the disclosure of Confidential Information to any third party without the express written consent of the\ndisclosing party may cause irreparable harm to the disclosing party, and that any breach or threatened breach of this Agreement by the\nreceiving party will entitle the disclosing party to seek injunctive relief, in addition to any other legal remedies available to it, in any court of\ncompetent jurisdiction.\n10.\nNo failure or delay by the disclosing party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n11. The parties hereby agree that this Agreement represents the entire agreement between the parties with respect to the subject matter hereof and\nsupersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the handling of Confidential\nInformation, whether written, oral, visual, audio or in any other medium whatsoever. This Agreement shall be governed by the laws of the\nCommonwealth of Pennsylvania without reference to its conflict of laws rules. This agreement may not be amended or in any manner modified\nexcept by a written instrument signed by authorized representatives of both parties. If any provision of this Agreement is found to be\nunenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the limited\nextent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein.\n12. This Agreement shall be binding on each party's successors and assigns.\n13. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the\nsame agreement. Signatures to this Agreement transmitted by facsimile, by electronic mail in "portable document format" (".pdf"), or by any\nother electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical\ndelivery of the paper document bearing the original signature.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nENDO PHARMACEUTICALS INC.\nHEALTHTRONICS, INC.\nBy: /s/ Doug Macpherson\nBy: /s/ Scott A. Herz\nDoug Macpherson\nName: Scott A. Herz\nVice President and Associate General Counsel\nTitle: VP - Corporate Development	EX-99.(D)(3) 13 dex99d3.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)\nCONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is entered into as of March 2, 2010 and is effective upon the date of first disclosure or signing, which ever occurs first,\nbetween Endo Pharmaceuticals Inc., whose main offices are located at 100 Endo Boulevard, Chadds Ford, Pennsylvania 19317, for itself and its\nsubsidiaries Endo Pharmaceuticals Solutions Inc. and Endo Pharmaceuticals Valera Inc., each of which shall be bound by this Agreement as if each\nhad separately executed this Agreement, (collectively “Endo”), and HealthTronics, Inc., located at 9825 Spectrum Dr. , Bldg. 3, Austin, TX 78717.\nWHEREAS, the parties hereto, wish to explore a mutually beneficial relationship, and in so doing, may disclose to each other certain non-public\nconfidential and proprietary information pertaining to such possible business relationship, as set forth below.\nNOW THEREFORE, the parties hereto, intending to be legally bound, agree as follows:\n1. For purposes of this Agreement, “Confidential Information” shall mean all non-public and proprietary information that has been or will be\ndisclosed by one party, or one of its affiliates, to the other, or one of its affiliates, whether set forth orally or in writing which may relate to,\namong other things, their respective business interests, technical information, clinical data, product specifications, product development plans\nand ideas, marketing plans and ideas, manufacturing information or business operations.\n2. The parties hereby agree that the following shall not be considered Confidential Information subject to this Agreement:\n(a) information that, prior to the time of disclosure, is in the public domain;\n(b) information that, after disclosure becomes part of the public domain by publication or otherwise, provided that such publication is not\nin violation of this Agreement or, to receiving party’s knowledge, any other confidentiality agreement;\n(c) information that the receiving party can establish in writing was already known to it or was in its possession prior to the time of\ndisclosure and was not acquired, directly or indirectly, from the disclosing party;\n(d) information that the receiving party lawfully received from a third party, provided however, that such third party was not obligated to\nhold such information in confidence;\n(e) information that was independently developed by the receiving party without reference to any Confidential Information as established\nby appropriate documentation; and\n(f) information that the receiving party is compelled to disclose by a court or other tribunal of competent jurisdiction, provided however,\nthat in such case the receiving party shall immediately give as much advance notice as feasible to the disclosing party so that the\ndisclosing party may seek a protective order or other remedy from said court or tribunal. In any event, the receiving party shall\ndisclose only that portion of the Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed\nand will exercise reasonable efforts to ensure that any such information so disclosed will be accorded confidential treatment by said\ncourt or tribunal.\n3. The receiving party shall not use nor disclose to any third party Confidential Information of the disclosing party for any purpose other than for\nthe purposes set forth in this Agreement. The parties hereby agree to hold in strictest confidence any and all Confidential Information disclosed\nby one party to the other under the terms of this Agreement and shall use such information solely for the purpose of evaluating a potential\nbusiness relationship and if a business relationship is consummated, carrying out such business relationship.\n4. The receiving party will not disclose any such Confidential Information to any person other than to its affiliates, employees, agents,\nconsultants, directors and officers that have a need to know such information to effectuate the purpose of this Agreement and that such\naffiliates, employees, agents, consultants and officers shall be informed of this Confidentiality Agreement and shall be bound by a\nconfidentiality agreement containing terms at least as restrictive terms as those contained in this Agreement.\n5. Upon written request of the disclosing party, the receiving party shall return promptly to the disclosing party (or, at the receiving party’s\noption, destroy) all Confidential Information furnished to it, including any copies thereof and notes, extracts, or derivative materials based\nthereon (provided that if the receiving party so opts to destroy, the receiving party shall confirm and certify such destruction in writing to the\ndisclosing party); and until this Agreement is terminated or until the expiration of the confidentiality obligations set forth in this Agreement,\nshall keep confidential and not use in any way detrimental to the disclosing party any analyses, compilations, studies or other documents that\nreflect any of the Confidential Information. Notwithstanding the foregoing provision, the legal counsel of both parties may retain one copy of\nConfidential Information in its confidential files solely for archival purposes.\n6. Title to, and all rights emanating from the ownership of, all Confidential Information disclosed under this Agreement shall remain vested in the\ndisclosing party. Nothing herein shall be construed as granting any license or option, in favor of the receiving party, in such Confidential\nInformation under any patent, copyright and/or any other rights now or hereafter held by the disclosing party in or as a result of such\nConfidential Information other than as specifically agreed upon by the parties.\n7. Confidential Information shall remain subject to this Agreement for a period of five (5) years beyond the date of disclosure or generation of\nsuch Confidential Information.\n8. The execution and performance of this Agreement does not obligate the parties to enter into any other agreement or to perform any obligations\nother than as specified herein.\n9. The receiving party agrees that the disclosure of Confidential Information to any third party without the express written consent of the\ndisclosing party may cause irreparable harm to the disclosing party, and that any breach or threatened breach of this Agreement by the\nreceiving party will entitle the disclosing party to seek injunctive relief, in addition to any other legal remedies available to it, in any court of\ncompetent jurisdiction.\n10. No failure or delay by the disclosing party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any\nsingle or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n11. The parties hereby agree that this Agreement represents the entire agreement between the parties with respect to the subject matter hereof and\nsupersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the handling of Confidential\nInformation, whether written, oral, visual, audio or in any other medium whatsoever. This Agreement shall be governed by the laws of the\nCommonwealth of Pennsylvania without reference to its conflict of laws rules. This agreement may not be amended or in any manner modified\nexcept by a written instrument signed by authorized representatives of both parties. If any provision of this Agreement is found to be\nunenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the limited\nextent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein.\n12. This Agreement shall be binding on each party’s successors and assigns.\n13. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the\nsame agreement. Signatures to this Agreement transmitted by facsimile, by electronic mail in “portable document format” (“.pdf”), or by any\nother electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical\ndelivery of the paper document bearing the original signature.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.\nENDO PHARMACEUTICALS INC.\nHEALTHTRONICS, INC.\nBy: /s/ Doug Macpherson\nBy: /s/ Scott A. Herz\nDoug Macpherson\nName: Scott A. Herz\nVice President and Associate General Counsel\nTitle: VP - Corporate Development
+c8320bae68768cef9ac921bf62997f05.pdf	effective_date jurisdiction party term	EX-99.D.2 8 d53527dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nNON-DISCLOSURE AGREEMENT\nMay 18, 2015\nCarlyle Investment Management L.L.C .\n520 Madison Avenue\nNew York, NY 10022\nAttention: Andrew Crawford\nDear Sirs:\nCarlyle Investment Management L.L.C . (“Carlyle” or “you” or “your”) has requested certain non-public information regarding Blyth, Inc. (the\n“Company” or “us” or “we”) to explore the possibility of a transaction between you or one or more of your Affiliates and/or designees and the\nCompany (the “Transaction”). As a condition to furnishing such information to you, the Company is requiring you to agree to the following\nprovisions set forth in this Confidentiality Agreement (this “Agreement”).\n1. Certain Definitions. As used in this Agreement:\n(a) “Affiliate” means, with respect to any specified Person, any other Person that directly or indirectly controls, is controlled\nby or is under common control with such specified Person (provided that your Affiliates shall exclude your portfolio companies). The term\n“control,” when used with respect to any specified Person, means the possession, directly or indirectly, of the power to direct or cause the\ndirection of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and the\nterms “controlling” and “controlled” have correlative meanings.\n(b) “Evaluation Material” means any information or data concerning the Company or any of its subsidiaries, whether in oral or\nwritten form, that is disclosed to you or any of your Representatives by the Company or any of its Representatives in connection with the\nTransaction, together with all notes, memoranda, summaries, analyses, compilations, forecasts, studies, data and other documents and materials\n(in whatever form maintained) relating thereto that are prepared by you or any of your Representatives to the extent that they use or contain any\nsuch information. Notwithstanding the foregoing, “Evaluation Material” does not include information or data that (i) is or was independently\ndeveloped by you or your Representatives without reference to the Evaluation Materials; (ii) is or becomes available to the public, other than as a\nresult of disclosure by you or your Representatives in breach of this Agreement; (iii) is already in your or your Representatives’ possession or\nbecomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives, so long as that source\nis not known by you to be bound by a confidentiality agreement with or other obligation prohibiting such disclosure; or (iv) was within your or\nyour Representatives’ possession prior to it being furnished to you or your Representatives by the Company pursuant hereto.\n(c) “Person” means any natural person, business, corporation, company, association, limited liability company, partnership,\nlimited partnership, limited liability partnership, joint venture, business enterprise, trust, governmental authority or other legal entity.\n(d) “Representatives” means, with respect to any Person, such Person’s Affiliates and the respective partners, managing\nmembers, directors, officers, owners, shareholders, co-investors, employees, managers, agents and advisors (including attorneys, accountants,\ninvestment bankers, financial advisors and consultants) of such Person and such Person’s Affiliates, together with any actual or potential sources\nof financing for such Person or its Affiliates.\n2. Confidentiality and Disclosure of Evaluation Material.\n(a) Confidentiality and Use of Evaluation Material. Except as required by law or regulation or as otherwise provided for\nherein, you agree that all Evaluation Material shall be kept confidential and disclosed by you only to those of your Representatives to whom\ndisclosure is needed in order to facilitate your evaluation of the Transaction and who will abide to maintain the confidentiality of the Evaluation\nMaterial. You shall be liable for any breaches of this Agreement to the extent applicable to Representatives by any of your Representatives unless\nsuch Representatives have entered into a confidentiality agreement with the Company.\n(b) Compulsory Disclosure of Evaluation Material. In the event that you or any of your Representatives is requested or\nrequired by a governmental or regulatory body (including stock exchanges or self-regulatory organizations) (by interrogatories, requests for\ninformation, subpoena or other documents or requests) to disclose any Evaluation Material, you shall provide the Company with prompt written\nnotice (to the extent reasonably practicable and permitted by law, regulation or professional standard) of such request or requirement so that the\nCompany may seek (at the Company’s sole expense) an appropriate protective order and/or, in its sole discretion, waive compliance by you or\nyour Representatives with the applicable provisions of this Agreement. If, in the absence of such a protective order or waiver, you or any of your\nRepresentatives are nonetheless legally compelled or requested to disclose any Evaluation Material, then you or such Representative may\ndisclose only such portion of the Evaluation Material as is legally required or requested to be disclosed without liability under this Agreement so\nlong as you use commercially reasonable efforts to obtain assurances that such disclosed Evaluation Material will be afforded confidential\ntreatment and to preserve the confidentiality of the remainder of the Evaluation Material. We will assume all reasonable costs associated with any\nsuch disclosure of Evaluation Materials that you are legally required or requested to make. Notwithstanding anything herein to the contrary,\nEvaluation Material may be disclosed by you and your Representatives when pursuant to an ordinary course examination by a regulator, bank\nexaminer or self-regulatory organization not specifically directed at the Company, the Transaction or the Evaluation Material.\n(c) Other Disclosure. Except for disclosures pursuant to Section 2(a) or Section 2(b) or as otherwise provided herein, neither\nparty shall: (a) make any disclosure to any other Person of (i) the fact that discussions are taking place concerning a potential Transaction, (ii) the\nexistence or contents of this Agreement, (iii) the fact that you or your Representatives have requested or received Evaluation Material or (iv) any\nof the terms or conditions relating to the Transaction, including the status thereof; or (b) make any public statement concerning the Transaction\n(any disclosure or statement described in clauses (a) or (b) being a “Public Statement”). If either party determines that it is required to make any\nPublic\n2\nStatement for it not to be in violation of any applicable law, regulation, professional standard, order or listing agreement, then, in addition to\ncomplying with Section 2(b), such party shall (x) provide the other party with the text of such Public Statement as far in advance of its disclosure\nas is reasonably practicable and (y) consider in good faith the other party’s suggestions concerning the nature and scope of the information to be\ncontained therein.\n3. Securities Law Restrictions. You acknowledge that the Evaluation Material, if disclosed, may contain material non-public\ninformation concerning the Company, and you are aware of the restrictions imposed by U.S. federal and stale securities laws, and the rules and\nregulations promulgated thereunder, on Persons in possession of material non-public information. Nothing herein shall constitute an admission\nby either party that any Evaluation Material or other such information in fact contains material non-public information concerning the Company.\n4. No Representations or Warranties. You acknowledge and agree that: (a) no representation or warranty, express or implied, is or has\nbeen, made by us or any of our Representatives as to the accuracy or completeness of any of the Evaluation Material; and (b) you shall be\nentitled to rely only on those representations and warranties that are expressly set forth in a definitive written agreement to consummate the\nTransaction that is executed and delivered by both you, us or our respective Affiliates (a “Definitive Transaction Agreement”).\n5. Return, Destruction or Erasure of Evaluation Material. At any time upon the Company’s written request, except as may be required\nto be maintained by law, regulation (including regulatory compliance policy) or professional standard, you shall either, at your option, return or\ndestroy or erase (to the extent commercially reasonable or technically practicable), all Evaluation Material (including all copies, reproductions,\nsummaries, analyses or extracts thereof or based thereon) in the possession or control of you or any of your Representatives (and, in the case of\ndestruction or erasure, promptly provide to us a certificate and signed by a duly authorized representative confirming such destruction or\nerasure). Notwithstanding the foregoing, the Company understands and agrees that (a) you and your Representatives may maintain back-up,\narchival electronic storage of the Evaluation Material in order to comply with law or regulation or internal document retention and business\ncontinuity policies and procedures and (b) you and your Representatives will also be permitted to retain copies of such Evaluation Materials as\nmay be necessary to document your consideration of the proposed Transaction for the purpose of establishing compliance with any applicable\nlaws, regulations or professional standards and for defending or maintaining any litigation (including any administrative proceeding) relating to\nthis agreement or the Evaluation Materials, provided that all such information shall continue to be kept confidential pursuant to the terms of this\nAgreement. Notwithstanding any such return, destruction or erasure of the Evaluation Material, you and your Representatives shall continue to\nbe bound by the obligations of confidentiality hereunder.\n6. Communications Regarding the Transaction; Due Diligence. Unless otherwise directed by the Company in writing, you agree that\nall communications concerning the Transaction and your due diligence investigation (including requests for additional Evaluation Material,\nmeetings with management and site visits) shall be directed solely to the representatives of the Company designated by the Company (each, a\n“Company\n3\nRepresentative”). You and your Representatives shall not contact or communicate with any of the directors, officers, employees or customers of\nthe Company about the Transaction, unless approved in advance and in writing by the Company Representative or unless introduced to you or\nyour Representatives by a Company Representative. Notwithstanding anything in the foregoing to the contrary, nothing herein shall prohibit us\nfrom engaging in any communications with the Company or any of its Representatives not concerning a Transaction in the ordinary course of\nbusiness or consistent with past practices.\n7. Standstill. Unless a Release Event (as defined below) with respect to the Company shall have occurred, you (or anyone authorized\nto act on your behalf) shall not, for a period of six months after the date of this Agreement, directly or indirectly, do the following unless\nrequested by the Company or in connection with the Transaction:\n(a) make any statement or proposal to the board of directors of the Company or any of its stockholders with respect to, or\nmake any public announcement, proposal or offer (including any “solicitation” of “proxies” as such terms are defined or used in Regulation 14A\nof the Securities Exchange Act of 1934, as amended) with respect to, or otherwise solicit, seek or offer to effect (i) any business combination,\nconsolidation, merger, tender offer, exchange offer or similar transaction involving the Company or any of its subsidiaries, (ii) any restructuring,\nrecapitalization, liquidation or similar transaction involving the Company or any of its subsidiaries, (iii) any acquisition of more than 4.99% of\nany voting securities or rights or options to acquire interests in any such voting securities of the Company or any of its subsidiaries, (iv) any\nproposal to seek representation on the board of directors of the Company or any of its subsidiaries or otherwise (whether alone or in concert with\nothers) seek to control or influence the management, board of directors or policies of the Company or any of its subsidiaries, (v) any request or\nproposal to waive, terminate or amend the provisions of this Agreement or (vi) any proposal or other statement that is inconsistent with the terms\nof this Agreement, including this Section 7(a); provided, that this clause (a) shall not apply to any request to waive your obligations under this\nSection 7 so long as such request is not made in a manner which would reasonably be expected to require the Company to make a public\nannouncement regarding such request;\n(b) encourage or assist any other Person (including forming, joining or in any way participating in a “group” (as defined in\nSection 13(d)(3) of the Securities Exchange Act of 1934) with any such other Person) to do, or enter into any discussions or agreements with any\nother Person with respect to, any of the actions set forth in clause (a) above;\n(c) take any action which would reasonably be expected to require the Company to make a public announcement regarding\nany of the actions set forth in clause (a) above; or\n(d) offer to acquire, acquire, own or sell (or propose, agree or seek permission, to acquire, own or sell), of record or\nbeneficially, by purchase, sale or otherwise, any voting securities or indebtedness of the Company, or rights or options to acquire interests in any\nvoting securities or indebtedness of the Company (except that you may purchase for investment in market transactions beneficial ownership of\nup to 5% in aggregate of the outstanding voting securities or indebtedness of the Company or any of its subsidiaries, or rights or options to\nacquire interests in any voting securities or indebtedness of the Company or any of its subsidiaries);\n4\nin each case unless and until you have received the prior written approval of our board of directors to do any of the foregoing. The foregoing\nshall not apply to your Representatives effecting or recommending transactions in securities in the ordinary course of their business as an\ninvestment advisor, broker, dealer in securities, market maker, specialist or block positioner.\nAs used herein, the term “Release Event” means any of the following: (i) we enter into a definitive agreement with respect to, or publicly\nannounce that we plan to enter into, a transaction with an Person or “group” of Persons involving the direct or indirect acquisition by such Person\nor group of all or a controlling portion of our equity securities or all or substantially all of our assets (whether by merger, consolidation, business\ncombination, tender or exchange offer or otherwise) or (ii) a Person (other than you in violation of this Agreement) has commenced a tender\noffer or an exchange offer for a majority of the total outstanding number of the Company’s voting securities, which the Company and its board of\ndirectors does not reject within ten business days following commencement of such tender offer or exchange offer or within ten business days\nafter any material increase in the consideration being offered thereunder.\n8. No Joint Bidding. You hereby represent and warrant that you are not acting as a broker for or representative of any other Person in\nconnection with the Transaction, and you are considering the Transaction solely and exclusively for your and your Affiliates’ own account. You\nrepresent that other than as disclosed to the Company in writing prior to the execution of this Agreement, you have not entered into, directly or\nindirectly, any agreement with any Person (other than any of your Representatives in such capacity) with respect to a possible transaction\ninvolving the Company or that could otherwise affect such Person’s decisions or actions with respect to a possible transaction involving the\nCompany.\n9. Remedies. Each party agrees that money damages may not be a sufficient remedy for a breach or a threatened breach of this\nAgreement and that each party shall be entitled to seek specific performance and injunctive or other equitable relief without the posting or\nsecuring of a bond or other security as a remedy for any such breach or threatened breach, in addition to all other remedies available at law or in\nequity. Such injunctive or other equitable relief shall be available without the obligation to prove any damages underlying such breach or\nthreatened breach. Each party agrees not to raise as a defense or objection to the request or granting of such relief that any breach of this\nAgreement is or would be compensable by an award of money damages and each party further agrees to waive (and to use commercially\nreasonable efforts to cause all of their Representatives to waive) any requirement for the securing or posting of any bond or other security in\nconnection with any such remedy. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or\nprivilege hereunder.\n10. No Waiver of Privilege. To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, the\nCompany is not waiving or diminishing, and shall not be deemed to have waived or diminished, its attorney work-product\n5\nprotections, attorney-client privileges or similar protections and privileges as a result of disclosing any Evaluation Material (including any\nEvaluation Material related to pending or threatened litigation) to you or any of your Representatives.\n11. Liability for Representatives. Notwithstanding anything to the contrary provided herein, none of the provisions of this Agreement\nshall in any way limit the activities of your Affiliates, provided that (i) such Affiliates have not been given access to the Evaluation Materials by\nyou or your Representatives and (ii) such Affiliates are not acting on your behalf or upon your instruction or encouragement in contravention of\nany term or provision of this Agreement. In addition, the Company acknowledges that you and your Representatives may be involved, invested\nor interested in, now or in the future, directly or indirectly, various other business and activities, including businesses that may be similar to or\ncompetitive with the Company. Nothing in this Agreement shall limit the rights of such parties to (i) make such investments or pursue any\nopportunities or grant the Company any right to participate therein or (ii) from investing in, operating or participating in the management of its\nown business(es) or entity(ies) which compete or may compete, directly or indirectly, with the Company.\n12. Term. Except for Sections 9 (Remedies), 13(h) (Governing Law; Forum) and 13(i) (WAIVER OF JURY TRIAL), which shall be\nbinding in perpetuity or until the latest date permitted by applicable law, and except for provisions that expressly state that they terminate on an\nearlier date, this Agreement shall expire at the earlier of (i) two years from the date of this Agreement and (ii) the consummation of the\nTransaction.\n13. Miscellaneous.\n(a) Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the matters\nset forth herein.\n(b) Data Site Provision. The terms of this Agreement shall control over any additional purported confidentiality requirements\nimposed by any offering memorandum, web-based database or similar repository of Evaluation Material to which you or your Representatives is\ngranted access in connection with the evaluation, negotiation or consummation of the Transaction, notwithstanding acceptance of such an\noffering memorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that your confidentiality obligations with respect to the Evaluation Material are\nexclusively governed by this Agreement and may not be amended except by an agreement executed by the parties hereto in writing.\n(c) Ownership of Evaluation Material: No License. All of the Evaluation Material is and shall remain the property of the\nCompany. The parties acknowledge and agree that neither the Company nor any of its Representatives grants any license or other property right\nor interest in, by implication or otherwise, any copyright, patent, trademark, mask work, database or other intellectual or intangible property or\nproprietary information disclosed, embodied fixed, comprised or contained in any Evaluation Material.\n6\n(d) Assignment; Successors. Neither this Agreement nor any of the rights or obligations hereunder shall be assigned by any\nparty without the prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and\nunenforceable. Any purchaser of the Company or all or substantially all of the Company’s assets shall be entitled to the benefits of this\nAgreement whether or not this Agreement is assigned to such Person.\n(e) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly\nsigned and delivered by or on behalf of both parties. Each party agrees that no failure or delay by the other party in exercising any right, power or\nprivilege hereunder will operate as a waiver, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any right, power or privilege hereunder. No waiver by any party shall operate or be construed as a waiver in respect of any failure,\nbreach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or\nafter that waiver.\n(f) Severability. The invalidity, illegality or unenforceability of any provision of this Agreement shall not impair or affect the\nvalidity, legality or enforceability of any other provision of this Agreement, unless the enforcement of such other provision in such circumstances\nwould be inequitable as determined by a court of competent jurisdiction.\n(g) No Obligation to Complete a Transaction. Each party understands that the other party has not, as of the date hereof,\nauthorized or made any decision to pursue any Transaction. This Agreement is not intended to, and does not, constitute an agreement or impose\nany obligation on either party: (i) to consummate a Transaction; (ii) to conduct or continue discussions or negotiations concerning a Transaction;\n(iii) to enter into a joint venture or other business relationship of any kind; or (iv) to enter into or negotiate a Definitive Transaction Agreement.\nExcept for matters specifically agreed to in this Agreement, neither party shall have any rights or obligations of any kind whatsoever with respect\nto a Transaction by virtue of this Agreement or any other written or oral expression by the parties or their respective Representatives unless and\nuntil a Definitive Transaction Agreement is executed and delivered. You acknowledge that the Company reserves the right, in its sole discretion\nand without giving any reason therefor, to: (A) provide or not to provide Evaluation Material to, and to request the return, destruction or erasure\nof Evaluation Material by, you or any of your Representatives; (B) adopt additional specific procedures to protect the confidentiality of the\nTransaction or certain sensitive Evaluation Material; (C) reject any proposals made by you or any of your Representatives; (D) terminate\ndiscussions or negotiations with you or any of your Representatives; and (E) engage in discussions or negotiations, and to enter into any\nagreement, with any other Person, in each case, in the Company’s sole discretion, without notice to you or any of your Representatives, at any\ntime and for any reason or no reason. You shall not have any claim or cause of action against the Company or any of its Representatives in\nrespect of the foregoing, except as specifically set forth in any Definitive Transaction Agreement or as otherwise provided in this Agreement.\n(h) Governing Law; Forum. This Agreement, and all claims or causes of action (whether in contract or tort) that may be based\nupon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement shall be governed\n7\nby, and construed in accordance with, the laws of the State of New York without regard to the principles of conflicts of laws in any jurisdiction.\nEach party consents and submits to the exclusive jurisdiction of the courts of the State of New York and the courts of the United States located in\nNew York for the adjudication of any action or legal proceeding relating to or arising out of this Agreement and the transactions contemplated\nhereby (and each party agrees not to commence any action or legal proceeding relating thereto except in any such court). Each party hereby\nirrevocably and unconditionally waives any objection which it may now or hereafter have to the laying of venue in such courts and agrees not to\nplead or claim in any such court that any such action or legal proceeding brought in any such court has been brought in an inconvenient forum.\nEach party hereby agrees that service of any process, summons, notice or document by overnight courier addressed to such party shall be\neffective service of process for any such suit, action or proceeding brought against such party in any such court. Each party hereto agrees that a\nfinal judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon such party and may be\nenforced in any other courts to whose jurisdiction such party is or may be subject by suit upon such judgment.\n(i) WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL\nBY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n(j) Counterparts. This Agreement may be signed in any number of counterparts (including by fax and PDF) with the same\neffect as if the signatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this\nAgreement. This Agreement shall become effective when, and only when, each party hereto shall have received a counterpart hereof signed by\nthe other party hereto.\n[Signature page follows]\n8\nVery truly yours,\nBLYTH, INC.\nBy: /s/ Robert Goergen, JR\nName: ROBERT GOERGEN, JR\nTitle: CEO\nAccepted and agreed to\nAs of the date first written above:\nCARLYLE INVESTMENT MANAGEMENT L.L .C.\nBy: /s/ David Stonehill\nName: David Stonehill\nTitle: Managing Director\nSignature Page to Blyth, Inc. Confidentiality Agreement	EX-99.D.2 8 d53527dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nNON-DISCLOSURE AGREEMENT\nMay 18, 2015\nCarlyle Investment Management L.L.C.\n520 Madison Avenue\nNew York, NY 10022\nAttention: Andrew Crawford\nDear Sirs:\nCarlyle Investment Management L.L.C. (“Carlyle” or “you” or “your”) has requested certain non-public information regarding Blyth, Inc. (the\n“Company” or “us” or “we”) to explore the possibility of a transaction between you or one or more of your Affiliates and/or designees and the\nCompany (the “Transaction”). As a condition to furnishing such information to you, the Company is requiring you to agree to the following\nprovisions set forth in this Confidentiality Agreement (this “Agreement”).\n1. Certain Definitions. As used in this Agreement:\n(a) “Affiliate” means, with respect to any specified Person, any other Person that directly or indirectly controls, is controlled\nby or is under common control with such specified Person (provided that your Affiliates shall exclude your portfolio companies). The term\n“control,” when used with respect to any specified Person, means the possession, directly or indirectly, of the power to direct or cause the\ndirection of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and the\nterms “controlling” and “controlled” have correlative meanings.\n(b) “Evaluation Material” means any information or data concerning the Company or any of its subsidiaries, whether in oral or\nwritten form, that is disclosed to you or any of your Representatives by the Company or any of its Representatives in connection with the\nTransaction, together with all notes, memoranda, summaries, analyses, compilations, forecasts, studies, data and other documents and materials\n(in whatever form maintained) relating thereto that are prepared by you or any of your Representatives to the extent that they use or contain any\nsuch information. Notwithstanding the foregoing, “Evaluation Material” does not include information or data that (i) is or was independently\ndeveloped by you or your Representatives without reference to the Evaluation Materials; (ii) is or becomes available to the public, other than as a\nresult of disclosure by you or your Representatives in breach of this Agreement; (iii) is already in your or your Representatives’ possession or\nbecomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives, so long as that source\nis not known by you to be bound by a confidentiality agreement with or other obligation prohibiting such disclosure; or (iv) was within your or\nyour Representatives’ possession prior to it being furnished to you or your Representatives by the Company pursuant hereto.\n(c) “Person” means any natural person, business, corporation, company, association, limited liability company, partnership,\nlimited partnership, limited liability partnership, joint venture, business enterprise, trust, governmental authority or other legal entity.\n(d) “Representatives” means, with respect to any Person, such Person’s Affiliates and the respective partners, managing\nmembers, directors, officers, owners, shareholders, co-investors, employees, managers, agents and advisors (including attorneys, accountants,\ninvestment bankers, financial advisors and consultants) of such Person and such Person’s Affiliates, together with any actual or potential sources\nof financing for such Person or its Affiliates.\n2. Confidentiality and Disclosure of Evaluation Material.\n(a) Confidentiality and Use of Evaluation Material. Except as required by law or regulation or as otherwise provided for\nherein, you agree that all Evaluation Material shall be kept confidential and disclosed by you only to those of your Representatives to whom\ndisclosure is needed in order to facilitate your evaluation of the Transaction and who will abide to maintain the confidentiality of the Evaluation\nMaterial. You shall be liable for any breaches of this Agreement to the extent applicable to Representatives by any of your Representatives unless\nsuch Representatives have entered into a confidentiality agreement with the Company.\n(b) Compulsory Disclosure of Evaluation Material. In the event that you or any of your Representatives is requested or\nrequired by a governmental or regulatory body (including stock exchanges or self-regulatory organizations) (by interrogatories, requests for\ninformation, subpoena or other documents or requests) to disclose any Evaluation Material, you shall provide the Company with prompt written\nnotice (to the extent reasonably practicable and permitted by law, regulation or professional standard) of such request or requirement so that the\nCompany may seek (at the Company’s sole expense) an appropriate protective order and/or, in its sole discretion, waive compliance by you or\nyour Representatives with the applicable provisions of this Agreement. If, in the absence of such a protective order or waiver, you or any of your\nRepresentatives are nonetheless legally compelled or requested to disclose any Evaluation Material, then you or such Representative may\ndisclose only such portion of the Evaluation Material as is legally required or requested to be disclosed without liability under this Agreement so\nlong as you use commercially reasonable efforts to obtain assurances that such disclosed Evaluation Material will be afforded confidential\ntreatment and to preserve the confidentiality of the remainder of the Evaluation Material. We will assume all reasonable costs associated with any\nsuch disclosure of Evaluation Materials that you are legally required or requested to make. Notwithstanding anything herein to the contrary,\nEvaluation Material may be disclosed by you and your Representatives when pursuant to an ordinary course examination by a regulator, bank\nexaminer or self-regulatory organization not specifically directed at the Company, the Transaction or the Evaluation Material.\n(c) Other Disclosure. Except for disclosures pursuant to Section 2(a) or Section 2(b) or as otherwise provided herein, neither\nparty shall: (a) make any disclosure to any other Person of (i) the fact that discussions are taking place concerning a potential Transaction, (ii) the\nexistence or contents of this Agreement, (iii) the fact that you or your Representatives have requested or received Evaluation Material or (iv) any\nof the terms or conditions relating to the Transaction, including the status thereof; or (b) make any public statement concerning the Transaction\n(any disclosure or statement described in clauses (a) or (b) being a “Public Statement”). If either party determines that it is required to make any\nPublic\nStatement for it not to be in violation of any applicable law, regulation, professional standard, order or listing agreement, then, in addition to\ncomplying with Section 2(b), such party shall (x) provide the other party with the text of such Public Statement as far in advance of its disclosure\nas is reasonably practicable and (y) consider in good faith the other party’s suggestions concerning the nature and scope of the information to be\ncontained therein.\n3. Securities Law Restrictions. You acknowledge that the Evaluation Material, if disclosed, may contain material non-public\ninformation concerning the Company, and you are aware of the restrictions imposed by U.S. federal and stale securities laws, and the rules and\nregulations promulgated thereunder, on Persons in possession of material non-public information. Nothing herein shall constitute an admission\nby either party that any Evaluation Material or other such information in fact contains material non-public information concerning the Company.\n4. No Representations or Warranties. You acknowledge and agree that: (a) no representation or warranty, express or implied, is or has\nbeen, made by us or any of our Representatives as to the accuracy or completeness of any of the Evaluation Material; and (b) you shall be\nentitled to rely only on those representations and warranties that are expressly set forth in a definitive written agreement to consummate the\nTransaction that is executed and delivered by both you, us or our respective Affiliates (a “Definitive Transaction Agreement”).\n5. Return, Destruction or Erasure of Evaluation Material. At any time upon the Company’s written request, except as may be required\nto be maintained by law, regulation (including regulatory compliance policy) or professional standard, you shall either, at your option, return or\ndestroy or erase (to the extent commercially reasonable or technically practicable), all Evaluation Material (including all copies, reproductions,\nsummaries, analyses or extracts thereof or based thereon) in the possession or control of you or any of your Representatives (and, in the case of\ndestruction or erasure, promptly provide to us a certificate and signed by a duly authorized representative confirming such destruction or\nerasure). Notwithstanding the foregoing, the Company understands and agrees that (a) you and your Representatives may maintain back-up,\narchival electronic storage of the Evaluation Material in order to comply with law or regulation or internal document retention and business\ncontinuity policies and procedures and (b) you and your Representatives will also be permitted to retain copies of such Evaluation Materials as\nmay be necessary to document your consideration of the proposed Transaction for the purpose of establishing compliance with any applicable\nlaws, regulations or professional standards and for defending or maintaining any litigation (including any administrative proceeding) relating to\nthis agreement or the Evaluation Materials, provided that all such information shall continue to be kept confidential pursuant to the terms of this\nAgreement. Notwithstanding any such return, destruction or erasure of the Evaluation Material, you and your Representatives shall continue to\nbe bound by the obligations of confidentiality hereunder.\n6. Communications Regarding the Transaction; Due Diligence. Unless otherwise directed by the Company in writing, you agree that\nall communications concerning the Transaction and your due diligence investigation (including requests for additional Evaluation Material,\nmeetings with management and site visits) shall be directed solely to the representatives of the Company designated by the Company (each, a\n“Company,\nRepresentative”). You and your Representatives shall not contact or communicate with any of the directors, officers, employees or customers of\nthe Company about the Transaction, unless approved in advance and in writing by the Company Representative or unless introduced to you or\nyour Representatives by a Company Representative. Notwithstanding anything in the foregoing to the contrary, nothing herein shall prohibit us\nfrom engaging in any communications with the Company or any of its Representatives not concerning a Transaction in the ordinary course of\nbusiness or consistent with past practices.\n7. Standstill. Unless a Release Event (as defined below) with respect to the Company shall have occurred, you (or anyone authorized\nto act on your behalf) shall not, for a period of six months after the date of this Agreement, directly or indirectly, do the following unless\nrequested by the Company or in connection with the Transaction:\n(a) make any statement or proposal to the board of directors of the Company or any of its stockholders with respect to, or\nmake any public announcement, proposal or offer (including any “solicitation” of “proxies” as such terms are defined or used in Regulation 14A\nof the Securities Exchange Act of 1934, as amended) with respect to, or otherwise solicit, seek or offer to effect (i) any business combination,\nconsolidation, merger, tender offer, exchange offer or similar transaction involving the Company or any of its subsidiaries, (ii) any restructuring,\nrecapitalization, liquidation or similar transaction involving the Company or any of its subsidiaries, (iii) any acquisition of more than 4.99% of\nany voting securities or rights or options to acquire interests in any such voting securities of the Company or any of its subsidiaries, (iv) any\nproposal to seek representation on the board of directors of the Company or any of its subsidiaries or otherwise (whether alone or in concert with\nothers) seek to control or influence the management, board of directors or policies of the Company or any of its subsidiaries, (v) any request or\nproposal to waive, terminate or amend the provisions of this Agreement or (vi) any proposal or other statement that is inconsistent with the terms\nof this Agreement, including this Section 7(a); provided, that this clause (a) shall not apply to any request to waive your obligations under this\nSection 7 so long as such request is not made in a manner which would reasonably be expected to require the Company to make a public\nannouncement regarding such request;\n(b) encourage or assist any other Person (including forming, joining or in any way participating in a “group” (as defined in\nSection 13(d)(3) of the Securities Exchange Act of 1934) with any such other Person) to do, or enter into any discussions or agreements with any\nother Person with respect to, any of the actions set forth in clause (a) above;\n(c) take any action which would reasonably be expected to require the Company to make a public announcement regarding\nany of the actions set forth in clause (a) above; or\n(d) offer to acquire, acquire, own or sell (or propose, agree or seek permission, to acquire, own or sell), of record or\nbeneficially, by purchase, sale or otherwise, any voting securities or indebtedness of the Company, or rights or options to acquire interests in any\nvoting securities or indebtedness of the Company (except that you may purchase for investment in market transactions beneficial ownership of\nup to 5% in aggregate of the outstanding voting securities or indebtedness of the Company or any of its subsidiaries, or rights or options to\nacquire interests in any voting securities or indebtedness of the Company or any of its subsidiaries);\n4\nin each case unless and until you have received the prior written approval of our board of directors to do any of the foregoing. The foregoing\nshall not apply to your Representatives effecting or recommending transactions in securities in the ordinary course of their business as an\ninvestment advisor, broker, dealer in securities, market maker, specialist or block positioner.\nAs used herein, the term “Release Event” means any of the following: (i) we enter into a definitive agreement with respect to, or publicly\nannounce that we plan to enter into, a transaction with an Person or “group” of Persons involving the direct or indirect acquisition by such Person\nor group of all or a controlling portion of our equity securities or all or substantially all of our assets (whether by merger, consolidation, business\ncombination, tender or exchange offer or otherwise) or (ii) a Person (other than you in violation of this Agreement) has commenced a tender\noffer or an exchange offer for a majority of the total outstanding number of the Company’s voting securities, which the Company and its board of\ndirectors does not reject within ten business days following commencement of such tender offer or exchange offer or within ten business days\nafter any material increase in the consideration being offered thereunder.\n8. No Joint Bidding. You hereby represent and warrant that you are not acting as a broker for or representative of any other Person in\nconnection with the Transaction, and you are considering the Transaction solely and exclusively for your and your Affiliates’ own account. You\nrepresent that other than as disclosed to the Company in writing prior to the execution of this Agreement, you have not entered into, directly or\nindirectly, any agreement with any Person (other than any of your Representatives in such capacity) with respect to a possible transaction\ninvolving the Company or that could otherwise affect such Person’s decisions or actions with respect to a possible transaction involving the\nCompany.\n9. Remedies. Each party agrees that money damages may not be a sufficient remedy for a breach or a threatened breach of this\nAgreement and that each party shall be entitled to seek specific performance and injunctive or other equitable relief without the posting or\nsecuring of a bond or other security as a remedy for any such breach or threatened breach, in addition to all other remedies available at law or in\nequity. Such injunctive or other equitable relief shall be available without the obligation to prove any damages underlying such breach or\nthreatened breach. Each party agrees not to raise as a defense or objection to the request or granting of such relief that any breach of this\nAgreement is or would be compensable by an award of money damages and each party further agrees to waive (and to use commercially\nreasonable efforts to cause all of their Representatives to waive) any requirement for the securing or posting of any bond or other security in\nconnection with any such remedy. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or\nprivilege hereunder.\n10. No Waiver of Privilege. To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, the\nCompany is not waiving or diminishing, and shall not be deemed to have waived or diminished, its attorney work-product\n5\nprotections, attorney-client privileges or similar protections and privileges as a result of disclosing any Evaluation Material (including any\nEvaluation Material related to pending or threatened litigation) to you or any of your Representatives.\n11. Liability for Representatives. Notwithstanding anything to the contrary provided herein, none of the provisions of this Agreement\nshall in any way limit the activities of your Affiliates, provided that (i) such Affiliates have not been given access to the Evaluation Materials by\nyou or your Representatives and (ii) such Affiliates are not acting on your behalf or upon your instruction or encouragement in contravention of\nany term or provision of this Agreement. In addition, the Company acknowledges that you and your Representatives may be involved, invested\nor interested in, now or in the future, directly or indirectly, various other business and activities, including businesses that may be similar to or\ncompetitive with the Company. Nothing in this Agreement shall limit the rights of such parties to (i) make such investments or pursue any\nopportunities or grant the Company any right to participate therein or (ii) from investing in, operating or participating in the management of its\nown business(es) or entity(ies) which compete or may compete, directly or indirectly, with the Company.\n12. Term. Except for Sections 9 (Remedies), 13(h) (Governing Law; Forum) and 13(i) (WAIVER OF JURY TRIAL), which shall be\nbinding in perpetuity or until the latest date permitted by applicable law, and except for provisions that expressly state that they terminate on an\nearlier date, this Agreement shall expire at the earlier of (i) two years from the date of this Agreement and (ii) the consummation of the\nTransaction.\n13. Miscellaneous.\n(a) Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the matters\nset forth herein.\n(b) Data Site Provision. The terms of this Agreement shall control over any additional purported confidentiality requirements\nimposed by any offering memorandum, web-based database or similar repository of Evaluation Material to which you or your Representatives is\ngranted access in connection with the evaluation, negotiation or consummation of the Transaction, notwithstanding acceptance of such an\noffering memorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that your confidentiality obligations with respect to the Evaluation Material are\nexclusively governed by this Agreement and may not be amended except by an agreement executed by the parties hereto in writing.\n(c) Ownership of Evaluation Material: No License. All of the Evaluation Material is and shall remain the property of the\nCompany. The parties acknowledge and agree that neither the Company nor any of its Representatives grants any license or other property right\nor interest in, by implication or otherwise, any copyright, patent, trademark, mask work, database or other intellectual or intangible property or\nproprietary information disclosed, embodied fixed, comprised or contained in any Evaluation Material.\n6\n(d) Assignment; Successors. Neither this Agreement nor any of the rights or obligations hereunder shall be assigned by any\nparty without the prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and\nunenforceable. Any purchaser of the Company or all or substantially all of the Company’s assets shall be entitled to the benefits of this\nAgreement whether or not this Agreement is assigned to such Person.\n(e) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly\nsigned and delivered by or on behalf of both parties. Each party agrees that no failure or delay by the other party in exercising any right, power or\nprivilege hereunder will operate as a waiver, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any right, power or privilege hereunder. No waiver by any party shall operate or be construed as a waiver in respect of any failure,\nbreach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or\nafter that waiver.\n(f) Severability. The invalidity, illegality or unenforceability of any provision of this Agreement shall not impair or affect the\nvalidity, legality or enforceability of any other provision of this Agreement, unless the enforcement of such other provision in such circumstances\nwould be inequitable as determined by a court of competent jurisdiction.\n(g) No Obligation to Complete a Transaction. Each party understands that the other party has not, as of the date hereof,\nauthorized or made any decision to pursue any Transaction. This Agreement is not intended to, and does not, constitute an agreement or impose\nany obligation on either party: (i) to consummate a Transaction; (ii) to conduct or continue discussions or negotiations concerning a Transaction;\n(iii) to enter into a joint venture or other business relationship of any kind; or (iv) to enter into or negotiate a Definitive Transaction Agreement.\nExcept for matters specifically agreed to in this Agreement, neither party shall have any rights or obligations of any kind whatsoever with respect\nto a Transaction by virtue of this Agreement or any other written or oral expression by the parties or their respective Representatives unless and\nuntil a Definitive Transaction Agreement is executed and delivered. You acknowledge that the Company reserves the right, in its sole discretion\nand without giving any reason therefor, to: (A) provide or not to provide Evaluation Material to, and to request the return, destruction or erasure\nof Evaluation Material by, you or any of your Representatives; (B) adopt additional specific procedures to protect the confidentiality of the\nTransaction or certain sensitive Evaluation Material; (C) reject any proposals made by you or any of your Representatives; (D) terminate\ndiscussions or negotiations with you or any of your Representatives; and (E) engage in discussions or negotiations, and to enter into any\nagreement, with any other Person, in each case, in the Company’s sole discretion, without notice to you or any of your Representatives, at any\ntime and for any reason or no reason. You shall not have any claim or cause of action against the Company or any of its Representatives in\nrespect of the foregoing, except as specifically set forth in any Definitive Transaction Agreement or as otherwise provided in this Agreement.\n(h) Governing Law; Forum. This Agreement, and all claims or causes of action (whether in contract or tort) that may be based\nupon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement shall be governed\n7\nby, and construed in accordance with, the laws of the State of New York without regard to the principles of conflicts of laws in any jurisdiction.\nEach party consents and submits to the exclusive jurisdiction of the courts of the State of New York and the courts of the United States located in\nNew York for the adjudication of any action or legal proceeding relating to or arising out of this Agreement and the transactions contemplated\nhereby (and each party agrees not to commence any action or legal proceeding relating thereto except in any such court). Each party hereby\nirrevocably and unconditionally waives any objection which it may now or hereafter have to the laying of venue in such courts and agrees not to\nplead or claim in any such court that any such action or legal proceeding brought in any such court has been brought in an inconvenient forum.\nEach party hereby agrees that service of any process, summons, notice or document by overnight courier addressed to such party shall be\neffective service of process for any such suit, action or proceeding brought against such party in any such court. Each party hereto agrees that a\nfinal judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon such party and may be\nenforced in any other courts to whose jurisdiction such party is or may be subject by suit upon such judgment.\n(i) WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL\nBY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n(j) Counterparts. This Agreement may be signed in any number of counterparts (including by fax and PDF) with the same\neffect as if the signatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this\nAgreement. This Agreement shall become effective when, and only when, each party hereto shall have received a counterpart hereof signed by\nthe other party hereto.\n[Signature page follows]\n8\nVery truly yours,\nBLYTH, INC.\nBy: /s/ Robert Goergen, JR\nName: ROBERT GOERGEN, JR\nTitle: CEO\nAccepted and agreed to\nAs of the date first written above:\nCARLYLE INVESTMENT MANAGEMENT L.L.C.\nBy: /s/ David Stonehill\nName: David Stonehill\nTitle: Managing Director\nSignature Page to Blyth, Inc. Confidentiality Agreement	EX-99.D.2 8 d53527dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nNON-DISCLOSURE AGREEMENT\nMay 18, 2015\nCarlyle Investment Management L.L.C.\n520 Madison Avenue\nNew York, NY 10022\nAttention: Andrew Crawford\nDear Sirs:\nCarlyle Investment Management L.L.C. ("Carlyle" or "you" or "your") has requested certain non-public information regarding Blyth, Inc.\n(the\n"Company." or "us" or "we") to explore the possibility of a transaction between you or one or more of your Affiliates and/or designees and the\nCompany (the "Transaction"). As a condition to furnishing such information to you, the Company is requiring you to agree to\nthe\nfollowing\nprovisions set forth in this Confidentiality Agreement (this "Agreement").\n1. Certain Definitions. As used in this Agreement:\n(a) "Affiliate" means, with respect to any specified Person, any other Person that directly or indirectly controls, is controlled\nby or is under common control with such specified Person (provided that your Affiliates shall exclude your portfolio companies). The term\n"control," when used with respect to any specified Person, means the possession, directly or indirectly, of the power to direct or cause the\ndirection of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and the\nterms "controlling" and "controlled" have correlative meanings.\n(b) "Evaluation Material" means any information or data concerning the Company or any of its subsidiaries, whether in oral or\nwritten form, that is disclosed to you or any of your Representatives by the Company or any of its Representatives in connection with the\nTransaction, together with all notes, memoranda, summaries, analyses, compilations, forecasts, studies, data and other documents and materials\n(in whatever form maintained) relating thereto that are prepared by you or any of your Representatives to the extent that they use or contain any\nsuch information. Notwithstanding the foregoing, "Evaluation Material" does not include information or data that (i) is or was independently\ndeveloped by you or your Representatives without reference to the Evaluation Materials; (ii) is or becomes available to the public, other than as a\nresult of disclosure by you or your Representatives in breach of this Agreement; (iii) is already in your or your Representatives' possession or\nbecomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives, so long as that source\nis not known by you to be bound by a confidentiality agreement with or other obligation prohibiting such disclosure; or (iv) was within your or\nyour Representatives' possession prior to it being furnished to you or your Representatives by the Company pursuant hereto.\n(c) "Person" means any natural person, business, corporation, company, association, limited liability company, partnership,\nlimited partnership, limited liability partnership, joint venture, business enterprise, trust, governmental authority or other legal entity.\n(d) "Representatives" means, with respect to any Person, such Person's Affiliates and the respective partners, managing\nmembers, directors, officers, owners, shareholders, co-investors, employees, managers, agents and advisors (including attorneys, accountants,\ninvestment bankers, financial advisors and consultants) of such Person and such Person's Affiliates, together with any actual or potential sources\nof financing for such Person or its Affiliates.\n2. Confidentiality. and Disclosure of Evaluation Material.\n(a) Confidentiality. and Use of Evaluation Material. Except as required by law or regulation or as otherwise provided for\nherein, you agree that all Evaluation Material shall be kept confidential and disclosed by you only to those of your Representatives to whom\ndisclosure is needed in order to facilitate your evaluation of the Transaction and who will abide to maintain the confidentiality of the Evaluation\nMaterial. You shall be liable for any breaches of this Agreement to the extent applicable to Representatives by any of your Representatives unless\nsuch Representatives have entered into a confidentiality agreement with the Company.\n(b) Compulsory. Disclosure of Evaluation Material. In the event that you or any of your Representatives is requested or\nrequired by a governmental or regulatory body (including stock exchanges or self-regulatory organizations) (by interrogatories, requests for\ninformation, subpoena or other documents or requests) to disclose any Evaluation Material, you shall provide the Company with prompt written\nnotice (to the extent reasonably practicable and permitted by law, regulation or professional standard) of such request or requirement so that the\nCompany may seek (at the Company's sole expense) an appropriate protective order and/or, in its sole discretion, waive compliance by you or\nyour Representatives with the applicable provisions of this Agreement. If, in the absence of such a protective order or waiver, you or any of your\nRepresentatives are nonetheless legally compelled or requested to disclose any Evaluation Material, then you or such Representative may\ndisclose only such portion of the Evaluation Material as is legally required or requested to be disclosed without liability under this Agreement so\nlong as you use commercially reasonable efforts to obtain assurances that such disclosed Evaluation Material will be afforded confidentia\ntreatment and to preserve the confidentiality of the remainder of the Evaluation Material. We will assume all reasonable costs associated with any\nsuch disclosure of Evaluation Materials that you are legally required or requested to make. Notwithstanding anything herein to the contrary,\nEvaluation Material may be disclosed by you and your Representatives when pursuant to an ordinary course examination by a regulator, bank\nexaminer or self-regulatory organization not specifically directed at the Company, the Transaction or the Evaluation Material.\n(c) Other Disclosure. Except for disclosures pursuant to Section 2(a) or Section 2(b) or as otherwise provided herein, neither\nparty shall: (a) make any disclosure to any other Person of (i) the fact that discussions are taking place concerning a potential Transaction (ii) the\nexistence or contents of this Agreement, (iii) the fact that you or your Representatives have requested or received Evaluation Material or (iv) any\nof the terms or conditions relating to the Transaction, including the status thereof; or (b) make any public statement concerning the Transaction\n(any disclosure or statement described in clauses (a) or (b) being a "Public Statement"). If either party determines that it is required to make any\nPublic\n2\nStatement for it not to be in violation of any applicable law, regulation, professional standard, order or listing agreement, then, in addition\nto\ncomplying with Section 2(b), such party shall (x) provide the other party with the text of such Public Statement as far in advance of its disclosure\nas is reasonably practicable and (y) consider in good faith the other party's suggestions concerning the nature and scope of the information to be\ncontained therein.\n3. Securities Law Restrictions. You acknowledge that the Evaluation Material, if disclosed, may contain material non-public\ninformation concerning the Company, and you are aware of the restrictions imposed by U.S. federal and stale securities laws, and the rules and\nregulations promulgated thereunder, on Persons in possession of material non-public information. Nothing herein shall constitute an admission\nby either party that any Evaluation Material or other such information in fact contains material non-public information concerning the Company.\n4. No Representations or Warranties. You acknowledge and agree that: (a) no representation or warranty, express or implied, is or has\nbeen, made by us or any of our Representatives as to the accuracy or completeness of any of the Evaluation Material; and (b) you shall be\nentitled to rely only on those representations and warranties that are expressly set forth in a definitive written agreement to consummate the\nTransaction that is executed and delivered by both you, us or our respective Affiliates (a "Definitive Transaction Agreement").\n5. Return, Destruction or Erasure of Evaluation Material. At any time upon the Company's written request, except as may be required\nto be maintained by law, regulation (including regulatory compliance policy) or professional standard, you shall either, at your option, return or\ndestroy or erase (to the extent commercially reasonable or technically practicable), all Evaluation Material (including all copies, reproductions,\nsummaries, analyses or extracts thereof or based thereon) in the possession or control of you or any of your Representatives (and, in the case\nof\ndestruction or erasure, promptly provide to us a certificate and signed by a duly authorized representative confirming such destruction or\nerasure). Notwithstanding the foregoing, the Company understands and agrees that (a) you and your Representatives may maintain back-up,\narchival electronic storage of the Evaluation Material in order to comply with law or regulation or internal document retention and business\ncontinuity policies and procedures and (b) you and your Representatives will also be permitted to retain copies of such Evaluation Materials as\nmay be necessary to document your consideration of the proposed Transaction for the purpose of establishing compliance with any applicable\nlaws, regulations or professional standards and for defending or maintaining any litigation (including any administrative proceeding) relating to\nthis\nagreement\nor\nthe\nEvaluation\nMaterials,\nprovided\nthat\nall\nsuch\ninformation\nshall\ncontinue\nto\nbe\nkept\nconfidential\npursuant\nto\nthe\nterms\nof\nthis\nAgreement. Notwithstanding any such return, destruction or erasure of the Evaluation Material, you and your Representatives shall continue\nto\nbe bound by the obligations of confidentiality hereunder.\n6. Communications Regarding the Transaction; Due Diligence. Unless otherwise directed by the Company in writing, you agree that\nall communications concerning the Transaction and your due diligence investigation (including requests for additional Evaluation Material,\nmeetings with management and site visits) shall be directed solely to the representatives of the Company designated by the Company (each, a\n"Company.\n3\nRepresentative"). You and your Representatives shall not contact or communicate with any of the directors, officers, employees or customers of\nthe Company about the Transaction, unless approved in advance and in writing by the Company Representative or unless introduced to you or\nyour Representatives by a Company Representative. Notwithstanding anything in the foregoing to the contrary, nothing herein shall prohibit us\nfrom engaging in any communications with the Company or any of its Representatives not concerning a Transaction in the ordinary course of\nbusiness or consistent with past practices.\n7. Standstill. Unless a Release Event (as defined below) with respect to the Company shall have occurred, you (or anyone authorized\nto act on your behalf) shall not, for a period of six months after the date of this Agreement, directly or indirectly, do the following unless\nrequested by the Company or in connection with the Transaction:\n(a) make any statement or proposal to the board of directors of the Company or any of its stockholders with respect to, or\nmake any public announcement, proposal or offer (including any "solicitation" of "proxies" as such terms are defined or used in Regulation 14A\nof the Securities Exchange Act of 1934, as amended) with respect to, or otherwise solicit, seek or offer to effect (i) any business combination,\nconsolidation, merger, tender offer, exchange offer or similar transaction involving the Company or any of its subsidiaries, (ii) any restructuring,\nrecapitalization, liquidation or similar transaction involving the Company or any of its subsidiaries, (iii) any acquisition of more than 4.99% of\nany voting securities or rights or options to acquire interests in any such voting securities of the Company or any of its subsidiaries, (iv) any\nproposal to seek representation on the board of directors of the Company or any of its subsidiaries or otherwise (whether alone or in concert with\nothers) seek to control or influence the management, board of directors or policies of the Company or any of its subsidiaries, (v) any request or\nproposal to waive, terminate or amend the provisions of this Agreement or (vi) any proposal or other statement that is inconsistent with the terms\nof this Agreement, including this Section 7(a); provided, that this clause (a) shall not apply to any request to waive your obligations under this\nSection 7 so long as such request is not made in a manner which would reasonably be expected to require the Company to make a public\nannouncement regarding such request;\n(b) encourage or assist any other Person (including forming, joining or in any way participating in a "group" (as defined in\nSection 13(d)(3) of the Securities Exchange Act of 1934) with any such other Person) to do, or enter into any discussions or agreements with\nany\nother Person with respect to, any of the actions set forth in clause (a) above;\n(c) take any action which would reasonably be expected to require the Company to make a public announcement regarding\nany of the actions set forth in clause (a) above; or\n(d) offer to acquire, acquire, own or sell (or propose, agree or seek permission, to acquire, own or sell), of record or\nbeneficially, by purchase, sale or otherwise, any voting securities or indebtedness of the Company, or rights or options to acquire interests in any\nvoting securities or indebtedness of the Company (except that you may purchase for investment in market transactions beneficial ownership of\nup to 5% in aggregate of the outstanding voting securities or indebtedness of the Company or any of its subsidiaries, or rights or options to\nacquire interests in any voting securities or indebtedness of the Company or any of its subsidiaries);\n4\nin each case unless and until you have received the prior written approval of our board of directors to do any of the foregoing. The foregoing\nshall not apply to your Representatives effecting or recommending transactions in securities in the ordinary course of their business as\nan\ninvestment advisor, broker, dealer in securities, market maker, specialist or block positioner.\nAs used herein, the term "Release Event" means any of the following: (i) we enter into a definitive agreement with respect to, or publicly\nannounce that we plan to enter into, a transaction with an Person or "group" of Persons involving the direct or indirect acquisition by such Person\nor group of all or a controlling portion of our equity securities or all or substantially all of our assets (whether by merger, consolidation, business\ncombination, tender or exchange offer or otherwise) or (ii) a Person (other than you in violation of this Agreement) has commenced a tender\noffer or an exchange offer for a majority of the total outstanding number of the Company's voting securities, which the Company and its board of\ndirectors does not reject within ten business days following commencement of such tender offer or exchange offer or within ten business days\nafter any material increase in the consideration being offered thereunder.\n8. No Joint Bidding. You hereby represent and warrant that you are not acting as a broker for or representative of any other Person in\nconnection with the Transaction, and you are considering the Transaction solely and exclusively for your and your Affiliates' own account.\nYou\nrepresent that other than as disclosed to the Company in writing prior to the execution of this Agreement, you have not entered into, directly or\nindirectly, any agreement with any Person (other than any of your Representatives in such capacity) with respect to a possible transaction\ninvolving the Company or that could otherwise affect such Person's decisions or actions with respect to a possible transaction involving the\nCompany.\n9. Remedies. Each party agrees that money damages may not be a sufficient remedy for a breach or a threatened breach of this\nAgreement and that each party shall be entitled to seek specific performance and injunctive or other equitable relief without the posting or\nsecuring of a bond or other security as a remedy for any such breach or threatened breach, in addition to all other remedies available at law or in\nequity. Such injunctive or other equitable relief shall be available without the obligation to prove any damages underlying such breach or\nthreatened breach. Each party agrees not to raise as a defense or objection to the request or granting of such relief that any breach of this\nAgreement is or would be compensable by an award of money damages and each party further agrees to waive (and to use commercially\nreasonable efforts to cause all of their Representatives to waive) any requirement for the securing or posting of any bond or other security in\nconnection with any such remedy. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or\nprivilege hereunder.\n10.\nNo Waiver of Privilege. To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, the\nCompany is not waiving or diminishing, and shall not be deemed to have waived or diminished, its attorney work-product\n5\nprotections, attorney-client privileges or similar protections and privileges as a result of disclosing any Evaluation Material (including any\nEvaluation Material related to pending or threatened litigation) to you or any of your Representatives.\n11. Liability for Representatives. Notwithstanding anything to the contrary provided herein, none of the provisions of this Agreement\nshall in any way limit the activities of your Affiliates, provided that (i) such Affiliates have not been given access to the Evaluation Materials by\nyou or your Representatives and (ii) such Affiliates are not acting on your behalf or upon your instruction or encouragement in contravention of\nany term or provision of this Agreement. In addition, the Company acknowledges that you and your Representatives may be involved, invested\nor interested in, now or in the future, directly or indirectly, various other business and activities, including businesses that may be similar to or\ncompetitive with the Company. Nothing in this Agreement shall limit the rights of such parties to (i) make such investments or pursue any\nopportunities or grant the Company any right to participate therein or (ii) from investing in, operating or participating in the management of its\nown business(es) or entity(ies) which compete or may compete, directly or indirectly, with the Company.\n12. Term. Except for Sections 9 (Remedies), 13(h) (Governing Law; Forum) and 13(i) (WAIVER OF JURY TRIAL), which shall\nbe\nbinding in perpetuity or until the latest date permitted by applicable law, and except for provisions that expressly state that they terminate on an\nearlier date, this Agreement shall expire at the earlier of (i) two years from the date of this Agreement and (ii) the consummation of the\nTransaction.\n13. Miscellaneous.\n(a) Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the matters\nset forth herein.\n(b) Data Site Provision. The terms of this Agreement shall control over any additional purported confidentiality requirements\nimposed by any offering memorandum web-based database or similar repository of Evaluation Material to which you or your Representatives is\ngranted access in connection with the evaluation, negotiation or consummation of the Transaction, notwithstanding acceptance of such an\noffering\nmemorandum\nor\nsubmission\nof\nan\nelectronic\nsignature,\n"clicking"\non\nan\n"I\nAgree"\nicon\nor\nother\nindication\nof\nassent\nto\nsuch\nadditional\nconfidentiality conditions, it being understood and agreed that your confidentiality obligations with respect to the Evaluation Material are\nexclusively governed by this Agreement and may not be amended except by an agreement executed by the parties hereto in writing.\n(c) Ownership of Evaluation Material: No License. All of the Evaluation Material is and shall remain the property of the\nCompany. The parties acknowledge and agree that neither the Company nor any of its Representatives grants any license or other property right\nor interest in, by implication or otherwise, any copyright, patent, trademark, mask work, database or other intellectual or intangible property\nor\nproprietary information disclosed, embodied fixed, comprised or contained in any Evaluation Material.\n6\n(d) Assignment; Successors. Neither this Agreement nor any of the rights or obligations hereunder shall be assigned by any\nparty without the prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and\nunenforceable. Any purchaser of the Company or all or substantially all of the Company's assets shall be entitled to the benefits of this\nAgreement whether or not this Agreement is assigned to such Person.\n(e) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly\nsigned and delivered by or on behalf of both parties. Each party agrees that no failure or delay by the other party in exercising any right, power or\nprivilege hereunder will operate as a waiver, nor will any single or partial exercise thereof preclude any other or further exercise thereof or\nthe\nexercise of any right, power or privilege hereunder. No waiver by any party shall operate or be construed as a waiver in respect of any failure,\nbreach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or\nafter that waiver.\n(f) Severability.. The invalidity, illegality or unenforceability of any provision of this Agreement shall not impair or affect the\nvalidity, legality or enforceability of any other provision of this Agreement, unless the enforcement of such other provision in such circumstances\nwould be inequitable as determined by a court of competent jurisdiction.\n(g) No Obligation to Complete a Transaction. Each party understands that the other party has not, as of the date hereof,\nauthorized or made any decision to pursue any Transaction. This Agreement is not intended to, and does not, constitute an agreement or impose\nany obligation on either party: (i) to consummate a Transaction; (ii) to conduct or continue discussions or negotiations concerning a Transaction;\n(iii)\nto\nenter into a joint venture or other business relationship of any kind; or (iv) to enter into or negotiate a Definitive Transaction Agreement.\nExcept for matters specifically agreed to in this Agreement, neither party shall have any rights or obligations of any kind whatsoever with respect\nto a Transaction by virtue of this Agreement or any other written or oral expression by the parties or their respective Representatives unless and\nuntil a Definitive Transaction Agreement is executed and delivered. You acknowledge that the Company reserves the right, in its sole discretion\nand without giving any reason therefor, to: (A) provide or not to provide Evaluation Material to, and to request the return, destruction or erasure\nof Evaluation Material by, you or any of your Representatives; (B) adopt additional specific procedures to protect the confidentiality of the\nTransaction or certain sensitive Evaluation Material; (C) reject any proposals made by you or any of your Representatives; (D)\nterminate\ndiscussions or negotiations with you or any of your Representatives; and (E) engage in discussions or negotiations, and to enter into any\nagreement, with any other Person, in each case, in the Company's sole discretion, without notice to you or any of your Representatives, at any\ntime and for any reason or no reason. You shall not have any claim or cause of action against the Company or any of its Representatives\nin\nrespect of the foregoing, except as specifically set forth in any Definitive Transaction Agreement or as otherwise provided in this Agreement.\n(h) Governing Law; Forum. This Agreement, and all claims or causes of action (whether in contract or tort) that may be based\nupon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement shall be governed\n7\nby, and construed in accordance with, the laws of the State of New York without regard to the principles of conflicts of laws in any jurisdiction.\nEach party consents and submits to the exclusive jurisdiction of the courts of the State of New York and the courts of the United States located in\nNew York for the adjudication of any action or legal proceeding relating to or arising out of this Agreement and the transactions contemplated\nhereby (and each party agrees not to commence any action or legal proceeding relating thereto except in any such court). Each party hereby\nirrevocably and unconditionally waives any objection which it may now or hereafter have to the laying of venue in such courts and agrees not to\nplead or claim in any such court that any such action or legal proceeding brought in any such court has been brought in an inconvenient forum.\nEach party hereby agrees that service of any process, summons, notice or document by overnight courier addressed to such party shall be\neffective service of process for any such suit, action or proceeding brought against such party in any such court. Each party hereto agrees that a\nfinal judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon such party and may be\nenforced in any other courts to whose jurisdiction such party is or may be subject by suit upon such judgment.\n(i) WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL\nBY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n(j) Counterparts. This Agreement may be signed in any number of counterparts (including by fax and PDF) with the same\neffect as if the signatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this\nAgreement. This Agreement shall become effective when, and only when, each party hereto shall have received a counterpart hereof signed by\nthe other party hereto.\n[Signature page follows]\n8\nVery truly yours,\nBLYTH, INC.\nBy:\n/s/ Robert Goergen, JR\nName: ROBERT GOERGEN, JR\nTitle: CEO\nAccepted and agreed to\nAs of the date first written above:\nCARLYLE INVESTMENT MANAGEMENT L.L.C.\nBy:\n/s/ David Stonehill\nName: David Stonehill\nTitle: Managing Director\nSignature Page to Blyth, Inc. Confidentiality Agreement	EX-99.D.2 8 d53527dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nNON-DISCLOSURE AGREEMENT\nMay 18, 2015\nCarlyle Investment Management L.L.C .\n520 Madison Avenue\nNew York, NY 10022\nAttention: Andrew Crawford\nDear Sirs:\nCarlyle Investment Management L.L.C . (“Carlyle” or “you” or “your”) has requested certain non-public information regarding Blyth, Inc. (the\n“Company” or “us” or “we”) to explore the possibility of a transaction between you or one or more of your Affiliates and/or designees and the\nCompany (the “Transaction”). As a condition to furnishing such information to you, the Company is requiring you to agree to the following\nprovisions set forth in this Confidentiality Agreement (this “Agreement”).\n1. Certain Definitions. As used in this Agreement:\n(a) “Affiliate” means, with respect to any specified Person, any other Person that directly or indirectly controls, is controlled\nby or is under common control with such specified Person (provided that your Affiliates shall exclude your portfolio companies). The term\n“control,” when used with respect to any specified Person, means the possession, directly or indirectly, of the power to direct or cause the\ndirection of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and the\nterms “controlling” and “controlled” have correlative meanings.\n(b) “Evaluation Material” means any information or data concerning the Company or any of its subsidiaries, whether in oral or\nwritten form, that is disclosed to you or any of your Representatives by the Company or any of its Representatives in connection with the\nTransaction, together with all notes, memoranda, summaries, analyses, compilations, forecasts, studies, data and other documents and materials\n(in whatever form maintained) relating thereto that are prepared by you or any of your Representatives to the extent that they use or contain any\nsuch information. Notwithstanding the foregoing, “Evaluation Material” does not include information or data that (i) is or was independently\ndeveloped by you or your Representatives without reference to the Evaluation Materials; (ii) is or becomes available to the public, other than as a\nresult of disclosure by you or your Representatives in breach of this Agreement; (iii) is already in your or your Representatives’ possession or\nbecomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives, so long as that source\nis not known by you to be bound by a confidentiality agreement with or other obligation prohibiting such disclosure; or (iv) was within your or\nyour Representatives’ possession prior to it being furnished to you or your Representatives by the Company pursuant hereto.\n(c) “Person” means any natural person, business, corporation, company, association, limited liability company, partnership,\nlimited partnership, limited liability partnership, joint venture, business enterprise, trust, governmental authority or other legal entity.\n(d) “Representatives” means, with respect to any Person, such Person’s Affiliates and the respective partners, managing\nmembers, directors, officers, owners, shareholders, co-investors, employees, managers, agents and advisors (including attorneys, accountants,\ninvestment bankers, financial advisors and consultants) of such Person and such Person’s Affiliates, together with any actual or potential sources\nof financing for such Person or its Affiliates.\n2. Confidentiality and Disclosure of Evaluation Material.\n(a) Confidentiality and Use of Evaluation Material. Except as required by law or regulation or as otherwise provided for\nherein, you agree that all Evaluation Material shall be kept confidential and disclosed by you only to those of your Representatives to whom\ndisclosure is needed in order to facilitate your evaluation of the Transaction and who will abide to maintain the confidentiality of the Evaluation\nMaterial. You shall be liable for any breaches of this Agreement to the extent applicable to Representatives by any of your Representatives unless\nsuch Representatives have entered into a confidentiality agreement with the Company.\n(b) Compulsory Disclosure of Evaluation Material. In the event that you or any of your Representatives is requested or\nrequired by a governmental or regulatory body (including stock exchanges or self-regulatory organizations) (by interrogatories, requests for\ninformation, subpoena or other documents or requests) to disclose any Evaluation Material, you shall provide the Company with prompt written\nnotice (to the extent reasonably practicable and permitted by law, regulation or professional standard) of such request or requirement so that the\nCompany may seek (at the Company’s sole expense) an appropriate protective order and/or, in its sole discretion, waive compliance by you or\nyour Representatives with the applicable provisions of this Agreement. If, in the absence of such a protective order or waiver, you or any of your\nRepresentatives are nonetheless legally compelled or requested to disclose any Evaluation Material, then you or such Representative may\ndisclose only such portion of the Evaluation Material as is legally required or requested to be disclosed without liability under this Agreement so\nlong as you use commercially reasonable efforts to obtain assurances that such disclosed Evaluation Material will be afforded confidential\ntreatment and to preserve the confidentiality of the remainder of the Evaluation Material. We will assume all reasonable costs associated with any\nsuch disclosure of Evaluation Materials that you are legally required or requested to make. Notwithstanding anything herein to the contrary,\nEvaluation Material may be disclosed by you and your Representatives when pursuant to an ordinary course examination by a regulator, bank\nexaminer or self-regulatory organization not specifically directed at the Company, the Transaction or the Evaluation Material.\n(c) Other Disclosure. Except for disclosures pursuant to Section 2(a) or Section 2(b) or as otherwise provided herein, neither\nparty shall: (a) make any disclosure to any other Person of (i) the fact that discussions are taking place concerning a potential Transaction, (ii) the\nexistence or contents of this Agreement, (iii) the fact that you or your Representatives have requested or received Evaluation Material or (iv) any\nof the terms or conditions relating to the Transaction, including the status thereof; or (b) make any public statement concerning the Transaction\n(any disclosure or statement described in clauses (a) or (b) being a “Public Statement”). If either party determines that it is required to make any\nPublic\n2\nStatement for it not to be in violation of any applicable law, regulation, professional standard, order or listing agreement, then, in addition to\ncomplying with Section 2(b), such party shall (x) provide the other party with the text of such Public Statement as far in advance of its disclosure\nas is reasonably practicable and (y) consider in good faith the other party’s suggestions concerning the nature and scope of the information to be\ncontained therein.\n3. Securities Law Restrictions. You acknowledge that the Evaluation Material, if disclosed, may contain material non-public\ninformation concerning the Company, and you are aware of the restrictions imposed by U.S. federal and stale securities laws, and the rules and\nregulations promulgated thereunder, on Persons in possession of material non-public information. Nothing herein shall constitute an admission\nby either party that any Evaluation Material or other such information in fact contains material non-public information concerning the Company.\n4. No Representations or Warranties. You acknowledge and agree that: (a) no representation or warranty, express or implied, is or has\nbeen, made by us or any of our Representatives as to the accuracy or completeness of any of the Evaluation Material; and (b) you shall be\nentitled to rely only on those representations and warranties that are expressly set forth in a definitive written agreement to consummate the\nTransaction that is executed and delivered by both you, us or our respective Affiliates (a “Definitive Transaction Agreement”).\n5. Return, Destruction or Erasure of Evaluation Material. At any time upon the Company’s written request, except as may be required\nto be maintained by law, regulation (including regulatory compliance policy) or professional standard, you shall either, at your option, return or\ndestroy or erase (to the extent commercially reasonable or technically practicable), all Evaluation Material (including all copies, reproductions,\nsummaries, analyses or extracts thereof or based thereon) in the possession or control of you or any of your Representatives (and, in the case of\ndestruction or erasure, promptly provide to us a certificate and signed by a duly authorized representative confirming such destruction or\nerasure). Notwithstanding the foregoing, the Company understands and agrees that (a) you and your Representatives may maintain back-up,\narchival electronic storage of the Evaluation Material in order to comply with law or regulation or internal document retention and business\ncontinuity policies and procedures and (b) you and your Representatives will also be permitted to retain copies of such Evaluation Materials as\nmay be necessary to document your consideration of the proposed Transaction for the purpose of establishing compliance with any applicable\nlaws, regulations or professional standards and for defending or maintaining any litigation (including any administrative proceeding) relating to\nthis agreement or the Evaluation Materials, provided that all such information shall continue to be kept confidential pursuant to the terms of this\nAgreement. Notwithstanding any such return, destruction or erasure of the Evaluation Material, you and your Representatives shall continue to\nbe bound by the obligations of confidentiality hereunder.\n6. Communications Regarding the Transaction; Due Diligence. Unless otherwise directed by the Company in writing, you agree that\nall communications concerning the Transaction and your due diligence investigation (including requests for additional Evaluation Material,\nmeetings with management and site visits) shall be directed solely to the representatives of the Company designated by the Company (each, a\n“Company\n3\nRepresentative”). You and your Representatives shall not contact or communicate with any of the directors, officers, employees or customers of\nthe Company about the Transaction, unless approved in advance and in writing by the Company Representative or unless introduced to you or\nyour Representatives by a Company Representative. Notwithstanding anything in the foregoing to the contrary, nothing herein shall prohibit us\nfrom engaging in any communications with the Company or any of its Representatives not concerning a Transaction in the ordinary course of\nbusiness or consistent with past practices.\n7. Standstill. Unless a Release Event (as defined below) with respect to the Company shall have occurred, you (or anyone authorized\nto act on your behalf) shall not, for a period of six months after the date of this Agreement, directly or indirectly, do the following unless\nrequested by the Company or in connection with the Transaction:\n(a) make any statement or proposal to the board of directors of the Company or any of its stockholders with respect to, or\nmake any public announcement, proposal or offer (including any “solicitation” of “proxies” as such terms are defined or used in Regulation 14A\nof the Securities Exchange Act of 1934, as amended) with respect to, or otherwise solicit, seek or offer to effect (i) any business combination,\nconsolidation, merger, tender offer, exchange offer or similar transaction involving the Company or any of its subsidiaries, (ii) any restructuring,\nrecapitalization, liquidation or similar transaction involving the Company or any of its subsidiaries, (iii) any acquisition of more than 4.99% of\nany voting securities or rights or options to acquire interests in any such voting securities of the Company or any of its subsidiaries, (iv) any\nproposal to seek representation on the board of directors of the Company or any of its subsidiaries or otherwise (whether alone or in concert with\nothers) seek to control or influence the management, board of directors or policies of the Company or any of its subsidiaries, (v) any request or\nproposal to waive, terminate or amend the provisions of this Agreement or (vi) any proposal or other statement that is inconsistent with the terms\nof this Agreement, including this Section 7(a); provided, that this clause (a) shall not apply to any request to waive your obligations under this\nSection 7 so long as such request is not made in a manner which would reasonably be expected to require the Company to make a public\nannouncement regarding such request;\n(b) encourage or assist any other Person (including forming, joining or in any way participating in a “group” (as defined in\nSection 13(d)(3) of the Securities Exchange Act of 1934) with any such other Person) to do, or enter into any discussions or agreements with any\nother Person with respect to, any of the actions set forth in clause (a) above;\n(c) take any action which would reasonably be expected to require the Company to make a public announcement regarding\nany of the actions set forth in clause (a) above; or\n(d) offer to acquire, acquire, own or sell (or propose, agree or seek permission, to acquire, own or sell), of record or\nbeneficially, by purchase, sale or otherwise, any voting securities or indebtedness of the Company, or rights or options to acquire interests in any\nvoting securities or indebtedness of the Company (except that you may purchase for investment in market transactions beneficial ownership of\nup to 5% in aggregate of the outstanding voting securities or indebtedness of the Company or any of its subsidiaries, or rights or options to\nacquire interests in any voting securities or indebtedness of the Company or any of its subsidiaries);\n4\nin each case unless and until you have received the prior written approval of our board of directors to do any of the foregoing. The foregoing\nshall not apply to your Representatives effecting or recommending transactions in securities in the ordinary course of their business as an\ninvestment advisor, broker, dealer in securities, market maker, specialist or block positioner.\nAs used herein, the term “Release Event” means any of the following: (i) we enter into a definitive agreement with respect to, or publicly\nannounce that we plan to enter into, a transaction with an Person or “group” of Persons involving the direct or indirect acquisition by such Person\nor group of all or a controlling portion of our equity securities or all or substantially all of our assets (whether by merger, consolidation, business\ncombination, tender or exchange offer or otherwise) or (ii) a Person (other than you in violation of this Agreement) has commenced a tender\noffer or an exchange offer for a majority of the total outstanding number of the Company’s voting securities, which the Company and its board of\ndirectors does not reject within ten business days following commencement of such tender offer or exchange offer or within ten business days\nafter any material increase in the consideration being offered thereunder.\n8. No Joint Bidding. You hereby represent and warrant that you are not acting as a broker for or representative of any other Person in\nconnection with the Transaction, and you are considering the Transaction solely and exclusively for your and your Affiliates’ own account. You\nrepresent that other than as disclosed to the Company in writing prior to the execution of this Agreement, you have not entered into, directly or\nindirectly, any agreement with any Person (other than any of your Representatives in such capacity) with respect to a possible transaction\ninvolving the Company or that could otherwise affect such Person’s decisions or actions with respect to a possible transaction involving the\nCompany.\n9. Remedies. Each party agrees that money damages may not be a sufficient remedy for a breach or a threatened breach of this\nAgreement and that each party shall be entitled to seek specific performance and injunctive or other equitable relief without the posting or\nsecuring of a bond or other security as a remedy for any such breach or threatened breach, in addition to all other remedies available at law or in\nequity. Such injunctive or other equitable relief shall be available without the obligation to prove any damages underlying such breach or\nthreatened breach. Each party agrees not to raise as a defense or objection to the request or granting of such relief that any breach of this\nAgreement is or would be compensable by an award of money damages and each party further agrees to waive (and to use commercially\nreasonable efforts to cause all of their Representatives to waive) any requirement for the securing or posting of any bond or other security in\nconnection with any such remedy. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or\nprivilege hereunder.\n10. No Waiver of Privilege. To the extent that any Evaluation Material includes materials subject to the attorney-client privilege, the\nCompany is not waiving or diminishing, and shall not be deemed to have waived or diminished, its attorney work-product\n5\nprotections, attorney-client privileges or similar protections and privileges as a result of disclosing any Evaluation Material (including any\nEvaluation Material related to pending or threatened litigation) to you or any of your Representatives.\n11. Liability for Representatives. Notwithstanding anything to the contrary provided herein, none of the provisions of this Agreement\nshall in any way limit the activities of your Affiliates, provided that (i) such Affiliates have not been given access to the Evaluation Materials by\nyou or your Representatives and (ii) such Affiliates are not acting on your behalf or upon your instruction or encouragement in contravention of\nany term or provision of this Agreement. In addition, the Company acknowledges that you and your Representatives may be involved, invested\nor interested in, now or in the future, directly or indirectly, various other business and activities, including businesses that may be similar to or\ncompetitive with the Company. Nothing in this Agreement shall limit the rights of such parties to (i) make such investments or pursue any\nopportunities or grant the Company any right to participate therein or (ii) from investing in, operating or participating in the management of its\nown business(es) or entity(ies) which compete or may compete, directly or indirectly, with the Company.\n12. Term. Except for Sections 9 (Remedies), 13(h) (Governing Law; Forum) and 13(i) (WAIVER OF JURY TRIAL), which shall be\nbinding in perpetuity or until the latest date permitted by applicable law, and except for provisions that expressly state that they terminate on an\nearlier date, this Agreement shall expire at the earlier of (i) two years from the date of this Agreement and (ii) the consummation of the\nTransaction.\n13. Miscellaneous.\n(a) Entire Agreement. This Agreement contains the sole and entire agreement between the parties with respect to the matters\nset forth herein.\n(b) Data Site Provision. The terms of this Agreement shall control over any additional purported confidentiality requirements\nimposed by any offering memorandum, web-based database or similar repository of Evaluation Material to which you or your Representatives is\ngranted access in connection with the evaluation, negotiation or consummation of the Transaction, notwithstanding acceptance of such an\noffering memorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that your confidentiality obligations with respect to the Evaluation Material are\nexclusively governed by this Agreement and may not be amended except by an agreement executed by the parties hereto in writing.\n(c) Ownership of Evaluation Material: No License. All of the Evaluation Material is and shall remain the property of the\nCompany. The parties acknowledge and agree that neither the Company nor any of its Representatives grants any license or other property right\nor interest in, by implication or otherwise, any copyright, patent, trademark, mask work, database or other intellectual or intangible property or\nproprietary information disclosed, embodied fixed, comprised or contained in any Evaluation Material.\n6\n(d) Assignment; Successors. Neither this Agreement nor any of the rights or obligations hereunder shall be assigned by any\nparty without the prior written consent of the non-assigning party. Any purported assignment without such consent shall be void and\nunenforceable. Any purchaser of the Company or all or substantially all of the Company’s assets shall be entitled to the benefits of this\nAgreement whether or not this Agreement is assigned to such Person.\n(e) Amendment and Waiver. This Agreement may be amended, modified or waived only by a separate written instrument duly\nsigned and delivered by or on behalf of both parties. Each party agrees that no failure or delay by the other party in exercising any right, power or\nprivilege hereunder will operate as a waiver, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the\nexercise of any right, power or privilege hereunder. No waiver by any party shall operate or be construed as a waiver in respect of any failure,\nbreach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or\nafter that waiver.\n(f) Severability. The invalidity, illegality or unenforceability of any provision of this Agreement shall not impair or affect the\nvalidity, legality or enforceability of any other provision of this Agreement, unless the enforcement of such other provision in such circumstances\nwould be inequitable as determined by a court of competent jurisdiction.\n(g) No Obligation to Complete a Transaction. Each party understands that the other party has not, as of the date hereof,\nauthorized or made any decision to pursue any Transaction. This Agreement is not intended to, and does not, constitute an agreement or impose\nany obligation on either party: (i) to consummate a Transaction; (ii) to conduct or continue discussions or negotiations concerning a Transaction;\n(iii) to enter into a joint venture or other business relationship of any kind; or (iv) to enter into or negotiate a Definitive Transaction Agreement.\nExcept for matters specifically agreed to in this Agreement, neither party shall have any rights or obligations of any kind whatsoever with respect\nto a Transaction by virtue of this Agreement or any other written or oral expression by the parties or their respective Representatives unless and\nuntil a Definitive Transaction Agreement is executed and delivered. You acknowledge that the Company reserves the right, in its sole discretion\nand without giving any reason therefor, to: (A) provide or not to provide Evaluation Material to, and to request the return, destruction or erasure\nof Evaluation Material by, you or any of your Representatives; (B) adopt additional specific procedures to protect the confidentiality of the\nTransaction or certain sensitive Evaluation Material; (C) reject any proposals made by you or any of your Representatives; (D) terminate\ndiscussions or negotiations with you or any of your Representatives; and (E) engage in discussions or negotiations, and to enter into any\nagreement, with any other Person, in each case, in the Company’s sole discretion, without notice to you or any of your Representatives, at any\ntime and for any reason or no reason. You shall not have any claim or cause of action against the Company or any of its Representatives in\nrespect of the foregoing, except as specifically set forth in any Definitive Transaction Agreement or as otherwise provided in this Agreement.\n(h) Governing Law; Forum. This Agreement, and all claims or causes of action (whether in contract or tort) that may be based\nupon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement shall be governed\n7\nby, and construed in accordance with, the laws of the State of New York without regard to the principles of conflicts of laws in any jurisdiction.\nEach party consents and submits to the exclusive jurisdiction of the courts of the State of New York and the courts of the United States located in\nNew York for the adjudication of any action or legal proceeding relating to or arising out of this Agreement and the transactions contemplated\nhereby (and each party agrees not to commence any action or legal proceeding relating thereto except in any such court). Each party hereby\nirrevocably and unconditionally waives any objection which it may now or hereafter have to the laying of venue in such courts and agrees not to\nplead or claim in any such court that any such action or legal proceeding brought in any such court has been brought in an inconvenient forum.\nEach party hereby agrees that service of any process, summons, notice or document by overnight courier addressed to such party shall be\neffective service of process for any such suit, action or proceeding brought against such party in any such court. Each party hereto agrees that a\nfinal judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon such party and may be\nenforced in any other courts to whose jurisdiction such party is or may be subject by suit upon such judgment.\n(i) WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL\nBY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.\n(j) Counterparts. This Agreement may be signed in any number of counterparts (including by fax and PDF) with the same\neffect as if the signatures to each counterpart were upon a single instrument, and all such counterparts together shall be deemed an original of this\nAgreement. This Agreement shall become effective when, and only when, each party hereto shall have received a counterpart hereof signed by\nthe other party hereto.\n[Signature page follows]\n8\nVery truly yours,\nBLYTH, INC.\nBy: /s/ Robert Goergen, JR\nName: ROBERT GOERGEN, JR\nTitle: CEO\nAccepted and agreed to\nAs of the date first written above:\nCARLYLE INVESTMENT MANAGEMENT L.L .C.\nBy: /s/ David Stonehill\nName: David Stonehill\nTitle: Managing Director\nSignature Page to Blyth, Inc. Confidentiality Agreement
+c860715fa71346ae77f54b5a8ae204bd.pdf	effective_date jurisdiction party term	EX-10.2 3 d403161dex102.htm EX-10.2\nExhibit 10.2\nCORPORATE EXECUTIVE CONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nThis Corporate Executive Confidentiality, Non-Competition and Non-Solicitation Agreement (“Agreement”) is made by and between Zimmer,\nInc., a corporation having its principal headquarters in Warsaw, Indiana, and\n(“Employee”).\nRecitals\nA. For purposes of this Agreement, the term “Company” means Zimmer, Inc. and/or any or each of its affiliates, parents, or direct or\nindirect subsidiaries, as well as any successor-in-interest to Zimmer, Inc. and/or to any of its direct or indirect subsidiaries, affiliates, or parents.\nB. Employee is employed or has been offered employment by Company in an executive and/or high-level managerial capacity in which\nEmployee will have extensive access to trade secrets and confidential information of Company.\nC. Company has offered Employee the grant of certain equity-based awards under an equity incentive plan or program of the Company,\ncontingent upon Employee’s entering into this Agreement.\nAgreement\nNOW, THEREFORE, in consideration of the foregoing recitals, the promises contained herein and other good and valuable consideration, the\nreceipt and sufficiency of which are hereby acknowledged, Company and Employee agree to be legally bound as follows:\n1. Acknowledgements. Employee acknowledges that Company is engaged in the highly competitive business of the development,\nmanufacture, distribution, and sale of orthopaedic medical, oral rehabilitation, spine and/or trauma devices, products, processes and services, among\nother products and services, and that Employee serves in an executive and/or high-level managerial capacity for Company and in that capacity\nEmployee has and/or will have access to and will gain knowledge of substantial trade secrets and confidential information of Company.\n2. Non-Disclosure and Ownership of Confidential Information. Employee acknowledges that Confidential Information is a valuable,\nspecial, and unique asset of Company, and solely the property of Company, and agrees to the following:\n(a) Confidential Information Defined. The term “Confidential Information” includes, but is not limited to, any and all of Company’s trade\nsecrets, confidential and proprietary information and all other information and data of Company that is not generally known to the public or other\nthird parties who could derive economic value from its use or disclosure. Confidential Information includes, without limitation, confidential business\nmethods and processes, research and development information, business plans and strategies, marketing plans and strategies, information pertaining\nto current and prospective customers, information pertaining to distributors, pricing information, costing information, non-public financial\ninformation, personnel information, and information about current and prospective products or services, whether or not reduced to writing or other\ntangible medium of expression, including work product created by Employee in rendering services for Company.\n(b) Non-Disclosure of Confidential Information. During Employee’s employment with Company and thereafter, Employee will not disclose,\ntransfer, or use (or seek to induce others to disclose,\ntransfer, or use) any Confidential Information for any purpose other than i) disclosure to authorized employees and agents of Company who are\nbound to maintain the confidentiality of the Confidential Information; and/or ii) for authorized purposes during the course of Employee’s\nemployment in furtherance of Company’s business. Employee’s non-disclosure obligations shall continue as long as the Confidential Information\nremains confidential and shall not apply to information that becomes generally known to the public through no fault or action of Employee.\n(c) Protection of Confidential Information. Employee will notify Company in writing of any circumstances which may constitute unauthorized\ndisclosure, transfer, or use of Confidential Information. Employee will use Employee’s best efforts to protect Confidential Information from\nunauthorized disclosure, transfer, or use. Employee will implement and abide by all procedures adopted by Company to prevent unauthorized\ndisclosure, transfer, or use of Confidential Information.\n3. Ownership of Intellectual Property.\n(a) Invention Defined. The term “Invention” includes, but is not limited to ideas, programs, processes, systems, intellectual property, works of\nauthorship, copyrightable materials, discoveries, and/or improvements which Employee discovers, invents, originates, develops, makes, authors, or\nconceives alone or in conjunction with others during Employee’s employment with Company and/or within six (6) months after Employee’s\nemployment ends which relate to Company’s present or future business. An Invention is covered by this Agreement regardless of whether i)\nEmployee conceived of the Invention in the scope of Employee’s employment; ii) the Invention is patentable; or iii) Company takes any action to\ncommercialize or develop the Invention.\n(b) Ownership of Inventions. Inventions are solely the property of Company. Employee agrees that by operation of law and/or the effect of this\nAgreement Employee does not have any rights, title, or interest in any Inventions. Notwithstanding, Employee may be recognized as the inventor of\nan Invention without retaining any other rights associated therewith.\n(c) Disclosure and Assignment of Inventions. Employee hereby assigns to Company all right, title and interest Employee may have in any\nInventions that are discovered, invented, originated, developed, made, authored, or conceived by Employee (whether alone or with others) during\nEmployee’s employment with Company and/or within six (6) months after Employee’s employment ends which relate to Company’s present or\nfuture business. Employee agrees to: (i) promptly disclose all such Inventions in writing to Company; (ii) keep complete and accurate records of all\nsuch Inventions, which records shall be Company property and shall be retained on Company premises; and (iii) execute such documents and do\nsuch other acts as may be necessary in the opinion of Company to establish and preserve Company’s property rights in all such Inventions. This\nsection shall not apply to any Invention for which no equipment, supplies, facility or trade secret information of Company was used and which was\ndeveloped entirely on Employee’s own time, and (1) which does not relate (a) directly to the business of Company, or (b) to Company’s actual or\ndemonstrably anticipated research or development, and (2) which does not result from any work performed by Employee for Company.\n(d) Works of Authorship. All written, graphic or recorded material and all other works of authorship fixed in a tangible medium of expression\nmade or created by Employee, solely or jointly with others, during Employee’s employment with Company and relating to Company’s business,\nactual or contemplated, shall be the exclusive property of Company (collectively “Works”). Company will have the exclusive right to copyright such\nWorks. Employee agrees that if any Work created while employed by Company, whether or not created at the direction of Company, is\ncopyrightable, such Work will be a “work made for hire,” as that term is defined in the copyright laws of the United States. If, for any reason, any\ncopyrightable Works created by Employee are excluded from that definition, Employee hereby assigns and conveys to Company all right, title and\ninterest (including any copyright and renewals) in such Works.\n-2-\n(e) Attribution and Use of Works and Inventions; Waiver of Assertion of “Moral” Rights in Inventions and Works. Employee agrees that\nCompany and its licensees are not required to designate Employee as author, inventor or developer of any Works or Inventions when distributed or\notherwise. Employee hereby waives, and agrees not to assert, any “moral” rights in any Inventions and Works. Employee agrees that Company and\nits licensees shall have sole discretion with regard to how and for what purposes any Inventions or Works are used or distributed.\n(f) Employee Cooperation in Establishment of Company Proprietary Rights. Employee will sign documents of assignment, declarations and\nother documents and take all other actions reasonably required by Company, at Company’s expense, to perfect and enforce any of its proprietary\nrights. In the event Company is unable, for any reason whatsoever, to secure Employee’s signature to any lawful or necessary documents required to\napply for, prosecute, perfect, or assign any United States or foreign application for Letters Patent, trademark, copyright registration, or other filing to\nprotect any Invention or Work, Employee hereby irrevocably designates and appoints Company and its duly authorized officers and agents as\nEmployee’s agent and attorney in fact, to act for and on Employee’s behalf, to execute and file any such application, registration or other filing, and\nto do all other lawfully permitted acts to further the prosecution, issuance or assignment of Letters Patent or other protections on such Inventions, or\nregistrations for trademark or copyright or other protections on such Works, with the same force and effect as if executed by Employee.\n4. Return of Confidential Information and Company Property. Immediately upon termination of Employee’s employment with Company,\nEmployee shall return to Company all of Company’s property relating to Company’s business, including without limitation all of Company’s\nproperty which is in the possession, custody, or control of Employee such as Confidential Information, documents, hard copy files, copies of\ndocuments and electronic information/files.\n5. Obligations to Other Entities or Persons. Employee warrants that Employee is not bound by the terms of a confidentiality agreement or\nany other legal obligation which would either preclude or limit Employee from disclosing or using any of Employee’s ideas, inventions, discoveries\nor other information or otherwise fulfilling Employee’s obligations to Company. While employed by Company, Employee shall not disclose or use\nany confidential information belonging to another entity or other person.\n6. Conflict of Interest and Duty of Loyalty. During Employee’s employment with Company, Employee shall not engage, directly or\nindirectly, in any activity, employment or business venture, whether or not for remuneration, that i) is competitive with Company’s business;\nii) deprives or potentially could deprive Company of any business opportunity; iii) conflicts or potentially could conflict with Company’s business\ninterests; or iv) is otherwise detrimental to Company, including but not limited to preparations to engage in any of the foregoing activities.\n7. Restrictive Covenants. Employee agrees to, and covenants to comply with, each of the following separate and divisible restrictions:\n(a) Definitions.\n(1) “Competing Product” is defined as any product, process or service that is similar to (or would serve as a substitute for) and competitive\nwith any product, process or service that Company is researching, developing, manufacturing, distributing, selling and/or providing at the time of\nEmployee’s termination of employment with Company.\n-3-\n(2) “Competing Organization” is defined as any organization that researches, develops, manufactures, markets, distributes and/or sells one or\nmore Competing Products. A Competing Organization is diversified if it operates multiple, independently operating business divisions, units, lines or\nsegments some of which do not research, develop, manufacture, market, distribute and/or sell any Competing Products.\n(3) “Prohibited Capacity” is defined as (a) any same or similar capacity to that held by Employee at any time during Employee’s last two\n(2) years of employment with Company; (b) any executive or managerial capacity; or (c) any capacity in which Employee’s knowledge of\nConfidential Information and/or Inventions would render Employee’s assistance a competitive advantage to the Competing Organization.\n(4) “Restricted Geographic Area” is defined as all countries, territories, and states in which Company is doing business or is selling its\nproducts at the time of termination of Employee’s employment with Company. Employee acknowledges that this geographic scope is reasonable\ngiven Employee’s position with Company, the international scope of Company’s business; and the fact that Employee could compete with Company\nfrom anywhere Company does business.\n(5) “Restricted Period” is defined as the date Employee executes this Agreement, continuing through the eighteen (18) months after the\nEmployee’s last day of employment with Company unless otherwise extended by Employee’s breach of this Agreement. The running time on the\nRestricted Period shall be suspended during any period in which Employee is in violation of any of the restrictive covenants set forth herein, and all\nrestrictions shall automatically be extended by the period Employee was in violation of any such restrictions.\n(6) “Customer” is defined as any person or entity with respect to whom, as of the date of Employee’s separation from Company employment\nor at any time during the two years prior to such separation, Company sold or provided any products and/or services.\n(7) “Active Prospect” is defined as any person or entity that Company individually and specifically marketed to and/or held discussions with\nregarding the distribution and/or sale of any of Company’s products, processes or services at any time during the last six (6) months of Employee’s\nemployment with Company.\n(b) Restrictive Covenants. During the Restricted Period, Employee agrees to be bound by each of the following independent and divisible\nrestrictions:\n(1) Covenant Not to Compete.\n(A) Employee will not, within the Restricted Geographic Area, be employed by, work for, consult with, provide services to, or lend assistance to any\nCompeting Organization in a Prohibited Capacity.\n(B) Employee may be employed by, work for, consult with, provide services to, or lend assistance to a Competing Organization provided that: i) the\nCompeting Organization’s business is diversified; ii) the part of the Competing Organization’s business with which Employee will be affiliated\nwould not, evaluated on a stand-alone basis, be a Competing Organization; iii) Employee’s affiliation with the Competing Organization does not\ninvolve any Competing Products; iv) Employee provides Company a written description of Employee’s anticipated activities on behalf of the\nCompeting Organization which includes, without limitation, an assurance satisfactory to Company that Employee’s affiliation with the Competing\nOrganization does not constitute a Prohibited Capacity; and v) Employee’s affiliation with the Competing Organization does not constitute a\ncompetitive disadvantage to Company.\n-4-\n(2) Covenant Not to Solicit Customers or Active Prospects. Employee will not i) provide, sell, or market; ii) assist in the provision, selling or\nmarketing of; or iii) attempt to provide, sell or market any Competing Products to any of Company’s Customers or Active Prospects located in the\nRestricted Geographic Area.\n(3) Covenant Not to Interfere with Business Relationships. Employee will not, within the Restricted Geographic Area, urge, induce or seek to\ninduce any of Company’s independent contractors, subcontractors, distributors, brokers, consultants, sales representatives, customers, vendors,\nsuppliers or any other person or entity with whom Company has a business relationship at the time of Employee’s separation from Company\nemployment to terminate its or their relationship with, or representation of, Company or to cancel, withdraw, reduce, limit or in any manner modify\nany such person’s or entity’s business with, or representation of, Company.\n(4) Covenant Not to Solicit Company Employees. Employee will not, within the Restricted Geographic Area, employ, solicit for employment,\nor advise any other person or entity to employ or solicit for employment, any individual employed by Company at the time of Employee’s separation\nfrom Company employment, or otherwise directly or indirectly induce or entice any such employee to leave his/her employment with Company to\nwork for, consult with, provide services to, or lend assistance to any Competing Organization.\n(5) Covenant Not to Disparage Company. Employee will not make or publish any disparaging or derogatory statements about Company; about\nCompany’s products, processes, or services; or about Company’s past, present and future officers, directors, employees, attorneys and agents.\nDisparaging or derogatory statements include, but are not limited to, negative statements regarding Company’s business or other practices; provided,\nhowever, nothing herein shall prohibit Employee from providing any information as may be compelled by law or legal process.\n8. Reasonableness of Terms. Employee acknowledges and agrees that the restrictive covenants contained in this Agreement restrict Employee\nfrom engaging in activities for a competitive purpose and are reasonably necessary to protect Company’s legitimate interests in Confidential\nInformation, Inventions, and goodwill. Additionally, Employee acknowledges and agrees that the restrictive covenants are reasonable in all respects,\nincluding, but not limited to, temporal duration, scope of prohibited activities and geographic area. Employee further acknowledges and agrees that\nthe restrictive covenants set forth in this Agreement will not pose any hardship on Employee and that Employee will reasonably be able to earn an\nequivalent livelihood without violating any provision of this Agreement.\n9. Non-Competition Period Payments. To the extent Employee is denied a specific employment position that would otherwise be offered to\nEmployee by a Competing Organization solely because of the restrictive covenant provisions of Section 7 of this Agreement, and provided\nEmployee satisfies all conditions stated herein, then upon expiration of the period of time represented by any severance benefits Employee was\noffered, Company will make payments to Employee equal to Employee’s monthly base pay at the time of Employee’s separation from Company\nemployment (exclusive of bonus and other extra compensation and any other employee benefits) for each month of such unemployment through the\nend of the Restricted Period.\n(a) Expiration of Severance Benefits. Severance benefits shall be deemed to have expired at the conclusion of the period of time represented by\nthe total amount of any severance benefits offered to\n-5-\nEmployee (even if such offered severance benefits are not actually paid as a result of action or inaction on the part of Employee), including but not\nlimited to basic severance benefits, supplemental severance benefits and severance benefits payable pursuant to a change in control severance\nagreement to which Employee is a party.\n(b) Verification of Eligibility for Non-Competition Period Payments. To qualify for payments under this Section 9, Employee must provide\nCompany detailed written documentation supporting eligibility for payment, including, at a minimum, (a) the name and location of the Competing\nOrganization that would have employed Employee but for the provisions of Section 7 of this Agreement, (b) the title, nature, and detailed job\nresponsibilities of the employment position with the Competing Organization that Employee was denied, (c) the date Employee was denied the\nemployment position, and (d) the name and contact information of a managerial employee at the Competing Organization who has sufficient\nauthority to confirm that Employee was denied this specific employment position with the Competing Organization solely because Employee is\nsubject to the provisions of Section 7 of this Agreement (the “eligibility documentation”). Upon receipt of the eligibility documentation, Company\nwill determine eligibility for payment and, if eligibility is established, payments will commence as of the date of Company’s receipt of the eligibility\ndocumentation.\n(c) Obligation to Pursue Replacement Employment and Verification of Continued Eligibility for Non-Competition Period Payments. Employee\nis obligated to diligently seek and pursue replacement employment that does not violate Section 7 of this Agreement (“replacement employment”)\nduring any period in which Employee seeks and/or accepts payment from Company under this Section 9. After eligibility for non-competition period\npayments is established, Employee will, on or before the 15 day of each month of eligibility for continued payments, submit to Company a written\nstatement (i) identifying by name and address all prospective employers with whom Employee has applied or inquired about employment;\n(ii) identifying positions sought with each listed employer and specific actions taken in seeking each position; (iii) describing all other efforts made\nto obtain replacement employment; and (iv) describing any offers of employment received, including the name of the employer; the nature, title, and\ncompensation terms of the position offered; the actual or anticipated start date if the offer has been accepted; and the reason(s) for declining if the\noffer was declined.\n(d) Effect of Replacement Employment on Non-Competition Period Payments. If Employee is denied a specific employment position with a\nCompeting Organization solely because of the restrictive covenant provisions of Section 7 of this Agreement but obtains replacement employment,\nand the monthly compensation (including base pay, commissions, incentive compensation, bonuses and other compensation) for the replacement\nemployment is less than Employee’s monthly base pay at the time of Employee’s separation from employment with Company, Company agrees to\npay Employee the difference for each such month through the end of the Restricted Period, again upon expiration of any severance benefits which\nEmployee was offered and provided Employee satisfies all conditions stated herein. Employee shall submit to Company payroll records (as well as\nany other records reasonably requested by Company) showing all compensation received by Employee from the replacement employment as a\ncondition of Company’s payment of Non-Competition Period Payments covering any period of time when Employee is working in replacement\nemployment.\n(e) Company’s Right To Provide Release of Obligations in Lieu of Non-Competition Period Payments. Notwithstanding any of the foregoing\nprovisions of this Section 9, Company reserves the right to release Employee from Employee’s obligations under Section 7 of this Agreement at any\ntime during the Restricted Period, in full or in sufficient part to allow Employee to accept employment that would otherwise be prohibited under this\nAgreement, at which time Company’s payment obligations under this Section 9 shall cease immediately and Employee shall not be entitled to any\nfurther such payments or compensation.\n-6-\nth\n10. Severability, Modification of Restrictions: The covenants and restrictions in this Agreement are separate and divisible, and to the extent\nany clause, portion or section of this Agreement is determined to be unenforceable or invalid for any reason, Company and Employee acknowledge\nand agree that such unenforceability or invalidity shall not affect the enforceability or validity of the remainder of the Agreement. If any particular\ncovenant, provision or clause of this Agreement is determined to be unreasonable or unenforceable for any reason, including, without limitation,\ntemporal duration, scope of prohibited activity, and/or scope of geographic area, Company and Employee acknowledge and agree that such\ncovenant, provision or clause shall automatically be deemed reformed to have the closest effect permitted by applicable law to the original form and\nshall be given effect and enforced as so reformed to whatever extent would be reasonable and enforceable under applicable law. The parties agree\nthat any court interpreting the provisions of this Agreement shall have the authority, if necessary, to reform any such provision to make it enforceable\nunder applicable law.\n11. Remedies. Employee acknowledges that a breach or threatened breach by Employee of this Agreement will give rise to irreparable injury\nto Company and that money damages will not be adequate relief for such injury. Accordingly, Employee agrees that Company shall be entitled to\nobtain injunctive relief, including, but not limited to, temporary restraining orders, preliminary injunctions and/or permanent injunctions, without\nhaving to post any bond or other security, to restrain or prohibit such breach or threatened breach, in addition to any other legal remedies which may\nbe available. In addition to all other relief to which it shall be entitled, Company shall be entitled to cease all payments to which Employee would\notherwise be entitled under Section 9 hereto; continue to enforce this Agreement; recover from Employee all payments made under Section 9 to the\nextent attributable to a time during which Employee was in violation of the covenants for which payment was made; and recover from Employee all\nlitigation costs and attorneys’ fees incurred by Company in any action or proceeding relating to this Agreement in which Company prevails in any\nrespect, including, but not limited to, any action or proceeding in which Company seeks enforcement of this Agreement or seeks relief from\nEmployee’s violation of this Agreement.\n12. Survival of Obligations. Employee acknowledges and agrees that Employee’s obligations under this Agreement, including, without\nlimitation, Employee’s non-disclosure and non-competition obligations, shall survive the termination of Employee’s employment with Company,\nwhether such termination is with or without cause and whether it is voluntary or involuntary. Employee acknowledges and agrees that nothing in this\nAgreement alters the at-will nature of Employee’s employment and that either Company or Employee may terminate the employment relationship at\nany time, with or without cause or notice. Employee further acknowledges and agrees that: (a) Employee’s non-disclosure, non-disparagement, non-\nsolicitation and non-competition covenants set forth in Sections 2 and 7 of this Agreement shall be construed as independent covenants and that no\nbreach of any contractual or legal duty by Company shall be held sufficient to excuse or terminate Employee’s obligations or to preclude Company\nfrom obtaining injunctive relief or other remedies for Employee’s violation or threatened violation of such covenants, and (b) the existence of any\nclaim or cause of action by Employee against Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to\nCompany’s enforcement of Employee’s obligations under Sections 2 and 7 of this Agreement.\n13. Governing Law and Choice of Forum. This Agreement shall be construed and enforced in accordance with the laws of the State of\nIndiana, notwithstanding any state’s choice-of-law rules to the contrary. The parties agree that any legal action relating to this Agreement shall be\ncommenced and maintained exclusively before any appropriate state court located in Kosciusko County or the United States District Court for the\nNorthern District of Indiana, South Bend Division. The parties hereby submit to the jurisdiction of such courts and waive any right to challenge or\notherwise object to personal jurisdiction or venue, in any action commenced or maintained in such courts. Language translations aside, the English\nversion shall govern.\n-7-\n14. Successors and Assigns. Company shall have the right to assign this Agreement, and, accordingly, this Agreement shall inure to the\nbenefit of, and may be enforced by, any and all successors and assigns of Company, including without limitation by asset assignment, stock sale,\nmerger, consolidation or other corporate reorganization, and shall be binding on Employee. The services to be provided by Employee to Company\nare personal to Employee, and Employee shall not have the right to assign Employee’s duties under this Agreement.\n15. Modification. This Agreement may not be amended, supplemented, or modified except by a written document signed by both Employee\nand a duly authorized officer of Company.\n16. No Waiver. The failure of Company to insist in any one or more instances upon performance of any provision of this Agreement or to\npursue its rights hereunder shall not be construed as a waiver of any such provisions or the relinquishment of any such rights.\n17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which when taken\ntogether will constitute one and the same agreement.\n18. Entire Agreement. This Agreement, including Recitals, constitutes the entire agreement of the parties with respect to the subjects\nspecifically addressed herein, and supersedes any prior agreements, understandings, or representations, oral or written, on the subjects addressed\nherein. Notwithstanding the foregoing, to the extent the employee has an existing non-competition, confidentiality, and/or non-solicitation agreement\nin favor of Company and has breached or violated the terms thereof, Company may continue to enforce its rights and remedies under and pursuant to\nsuch existing agreement.\nEmployee’s signature below indicates that Employee has read the entire Agreement, understands what Employee is signing, and is signing the\nAgreement voluntarily. Employee agrees that Company advised Employee to consult with an attorney prior to signing the Agreement.\n“EMPLOYEE”\n(Employee Signature)\nPrinted Name:\nDate:\n“COMPANY”\nBy:\nPrinted Name:\nTitle:\nDate:\n-8-	EX-10.2 3 d403161dex102.htm EX-10.2\nExhibit 10.2\nCORPORATE EXECUTIVE CONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nThis Corporate Executive Confidentiality, Non-Competition and Non-Solicitation Agreement (“Agreement”) is made by and between Zimmer,\nInc., a corporation having its principal headquarters in Warsaw, Indiana, and (“Employee”).\nRecitals\nA. For purposes of this Agreement, the term “Company” means Zimmer, Inc. and/or any or each of its affiliates, parents, or direct or\nindirect subsidiaries, as well as any successor-in-interest to Zimmer, Inc. and/or to any of its direct or indirect subsidiaries, affiliates, or parents.\nB. Employee is employed or has been offered employment by Company in an executive and/or high-level managerial capacity in which\nEmployee will have extensive access to trade secrets and confidential information of Company.\nC. Company has offered Employee the grant of certain equity-based awards under an equity incentive plan or program of the Company,\ncontingent upon Employee’s entering into this Agreement.\nAgreement\nNOW, THEREFORE, in consideration of the foregoing recitals, the promises contained herein and other good and valuable consideration, the\nreceipt and sufficiency of which are hereby acknowledged, Company and Employee agree to be legally bound as follows:\n1. Acknowledgements. Employee acknowledges that Company is engaged in the highly competitive business of the development,\nmanufacture, distribution, and sale of orthopaedic medical, oral rehabilitation, spine and/or trauma devices, products, processes and services, among\nother products and services, and that Employee serves in an executive and/or high-level managerial capacity for Company and in that capacity\nEmployee has and/or will have access to and will gain knowledge of substantial trade secrets and confidential information of Company.\n \n2. Non-Disclosure and Ownership of Confidential Information. Employee acknowledges that Confidential Information is a valuable,\nspecial, and unique asset of Company, and solely the property of Company, and agrees to the following:\n(a) Confidential Information Defined. The term “Confidential Information” includes, but is not limited to, any and all of Company’s trade\nsecrets, confidential and proprietary information and all other information and data of Company that is not generally known to the public or other\nthird parties who could derive economic value from its use or disclosure. Confidential Information includes, without limitation, confidential business\nmethods and processes, research and development information, business plans and strategies, marketing plans and strategies, information pertaining\nto current and prospective customers, information pertaining to distributors, pricing information, costing information, non-public financial\ninformation, personnel information, and information about current and prospective products or services, whether or not reduced to writing or other\ntangible medium of expression, including work product created by Employee in rendering services for Company.\n(b) Non-Disclosure of Confidential Information. During Employee’s employment with Company and thereafter, Employee will not disclose,\ntransfer, or use (or seek to induce others to disclose,\ntransfer, or use) any Confidential Information for any purpose other than i) disclosure to authorized employees and agents of Company who are\nbound to maintain the confidentiality of the Confidential Information; and/or ii) for authorized purposes during the course of Employee’s\nemployment in furtherance of Company’s business. Employee’s non-disclosure obligations shall continue as long as the Confidential Information\nremains confidential and shall not apply to information that becomes generally known to the public through no fault or action of Employee.\n(c) Protection of Confidential Information. Employee will notify Company in writing of any circumstances which may constitute unauthorized\ndisclosure, transfer, or use of Confidential Information. Employee will use Employee’s best efforts to protect Confidential Information from\nunauthorized disclosure, transfer, or use. Employee will implement and abide by all procedures adopted by Company to prevent unauthorized\ndisclosure, transfer, or use of Confidential Information.\n3. Ownership of Intellectual Property.\n(a) Invention Defined. The term “Invention” includes, but is not limited to ideas, programs, processes, systems, intellectual property, works of\nauthorship, copyrightable materials, discoveries, and/or improvements which Employee discovers, invents, originates, develops, makes, authors, or\nconceives alone or in conjunction with others during Employee’s employment with Company and/or within six (6) months after Employee’s\nemployment ends which relate to Company’s present or future business. An Invention is covered by this Agreement regardless of whether i)\nEmployee conceived of the Invention in the scope of Employee’s employment; ii) the Invention is patentable; or iii) Company takes any action to\ncommercialize or develop the Invention.\n(b) Ownership of Inventions. Inventions are solely the property of Company. Employee agrees that by operation of law and/or the effect of this\nAgreement Employee does not have any rights, title, or interest in any Inventions. Notwithstanding, Employee may be recognized as the inventor of\nan Invention without retaining any other rights associated therewith.\n(c) Disclosure and Assignment of Inventions. Employee hereby assigns to Company all right, title and interest Employee may have in any\nInventions that are discovered, invented, originated, developed, made, authored, or conceived by Employee (whether alone or with others) during\nEmployee’s employment with Company and/or within six (6) months after Employee’s employment ends which relate to Company’s present or\nfuture business. Employee agrees to: (i) promptly disclose all such Inventions in writing to Company; (ii) keep complete and accurate records of all\nsuch Inventions, which records shall be Company property and shall be retained on Company premises; and (iii) execute such documents and do\nsuch other acts as may be necessary in the opinion of Company to establish and preserve Company’s property rights in all such Inventions. This\nsection shall not apply to any Invention for which no equipment, supplies, facility or trade secret information of Company was used and which was\ndeveloped entirely on Employee’s own time, and (1) which does not relate (a) directly to the business of Company, or (b) to Company’s actual or\ndemonstrably anticipated research or development, and (2) which does not result from any work performed by Employee for Company.\n(d) Works of Authorship. All written, graphic or recorded material and all other works of authorship fixed in a tangible medium of expression\nmade or created by Employee, solely or jointly with others, during Employee’s employment with Company and relating to Company’s business,\nactual or contemplated, shall be the exclusive property of Company (collectively “Works”). Company will have the exclusive right to copyright such\nWorks. Employee agrees that if any Work created while employed by Company, whether or not created at the direction of Company, is\ncopyrightable, such Work will be a “work made for hire,” as that term is defined in the copyright laws of the United States. If, for any reason, any\ncopyrightable Works created by Employee are excluded from that definition, Employee hereby assigns and conveys to Company all right, title and\ninterest (including any copyright and renewals) in such Works.\n-\n(e) Attribution and Use of Works and Inventions; Waiver of Assertion of “Moral” Rights in Inventions and Works. Employee agrees that\nCompany and its licensees are not required to designate Employee as author, inventor or developer of any Works or Inventions when distributed or\notherwise. Employee hereby waives, and agrees not to assert, any “moral” rights in any Inventions and Works. Employee agrees that Company and\nits licensees shall have sole discretion with regard to how and for what purposes any Inventions or Works are used or distributed.\nother documents and take all other actions reasonably required by Company, at Company’s expense, to perfect and enforce any of its proprietary\nrights. In the event Company is unable, for any reason whatsoever, to secure Employee’s signature to any lawful or necessary documents required to\napply for, prosecute, perfect, or assign any United States or foreign application for Letters Patent, trademark, copyright registration, or other filing to\nprotect any Invention or Work, Employee hereby irrevocably designates and appoints Company and its duly authorized officers and agents as\nEmployee’s agent and attorney in fact, to act for and on Employee’s behalf, to execute and file any such application, registration or other filing, and\nto do all other lawfully permitted acts to further the prosecution, issuance or assignment of Letters Patent or other protections on such Inventions, or\nregistrations for trademark or copyright or other protections on such Works, with the same force and effect as if executed by Employee.\nEmployee shall return to Company all of Company’s property relating to Company’s business, including without limitation all of Company’s\nproperty which is in the possession, custody, or control of Employee such as Confidential Information, documents, hard copy files, copies of\ndocuments and electronic information/files.\n5. Obligations to Other Entities or Persons. Employee warrants that Employee is not bound by the terms of a confidentiality agreement or\nany other legal obligation which would either preclude or limit Employee from disclosing or using any of Employee’s ideas, inventions, discoveries\nor other information or otherwise fulfilling Employee’s obligations to Company. While employed by Company, Employee shall not disclose or use\nany confidential information belonging to another entity or other person.\n6. Conflict of Interest and Duty of Loyalty. During Employee’s employment with Company, Employee shall not engage, directly or\nindirectly, in any activity, employment or business venture, whether or not for remuneration, that i) is competitive with Company’s business;\nii) deprives or potentially could deprive Company of any business opportunity; iii) conflicts or potentially could conflict with Company’s business\ninterests; or iv) is otherwise detrimental to Company, including but not limited to preparations to engage in any of the foregoing activities.\n7. Restrictive Covenants. Employee agrees to, and covenants to comply with, each of the following separate and divisible restrictions:\n(a) Definitions.\n(1) “Competing Product” is defined as any product, process or service that is similar to (or would serve as a substitute for) and competitive\nwith any product, process or service that Company is researching, developing, manufacturing, distributing, selling and/or providing at the time of\nEmployee’s termination of employment with Company.\n_3-\n(2) “Competing Organization” is defined as any organization that researches, develops, manufactures, markets, distributes and/or sells one or\nmore Competing Products. A Competing Organization is diversified if it operates multiple, independently operating business divisions, units, lines or\nsegments some of which do not research, develop, manufacture, market, distribute and/or sell any Competing Products.\n(3) “Prohibited Capacity” is defined as (a) any same or similar capacity to that held by Employee at any time during Employee’s last two\n(2) years of employment with Company; (b) any executive or managerial capacity; or (c) any capacity in which Employee’s knowledge of\nConfidential Information and/or Inventions would render Employee’s assistance a competitive advantage to the Competing Organization.\n(4) “Restricted Geographic Area” is defined as all countries, territories, and states in which Company is doing business or is selling its\nproducts at the time of termination of Employee’s employment with Company. Employee acknowledges that this geographic scope is reasonable\ngiven Employee’s position with Company, the international scope of Company’s business; and the fact that Employee could compete with Company\nfrom anywhere Company does business.\n(5) “Restricted Period” is defined as the date Employee executes this Agreement, continuing through the eighteen (18) months after the\nEmployee’s last day of employment with Company unless otherwise extended by Employee’s breach of this Agreement. The running time on the\nRestricted Period shall be suspended during any period in which Employee is in violation of any of the restrictive covenants set forth herein, and all\nrestrictions shall automatically be extended by the period Employee was in violation of any such restrictions.\n(6) “Customer” is defined as any person or entity with respect to whom, as of the date of Employee’s separation from Company employment\nor at any time during the two years prior to such separation, Company sold or provided any products and/or services.\n(7) “Active Prospect” is defined as any person or entity that Company individually and specifically marketed to and/or held discussions with\nregarding the distribution and/or sale of any of Company’s products, processes or services at any time during the last six (6) months of Employee’s\nemployment with Company.\n(b) Restrictive Covenants. During the Restricted Period, Employee agrees to be bound by each of the following independent and divisible\nrestrictions:\n(1) Covenant Not to Compete.\n(A) Employee will not, within the Restricted Geographic Area, be employed by, work for, consult with, provide services to, or lend assistance to any\nCompeting Organization in a Prohibited Capacity.\n(B) Employee may be employed by, work for, consult with, provide services to, or lend assistance to a Competing Organization provided that: i) the\nCompeting Organization’s business is diversified; ii) the part of the Competing Organization’s business with which Employee will be affiliated\nwould not, evaluated on a stand-alone basis, be a Competing Organization; iii) Employee’s affiliation with the Competing Organization does not\ninvolve any Competing Products; iv) Employee provides Company a written description of Employee’s anticipated activities on behalf of the\nCompeting Organization which includes, without limitation, an assurance satisfactory to Company that Employee’s affiliation with the Competing\nOrganization does not constitute a Prohibited Capacity; and v) Employee’s affiliation with the Competing Organization does not constitute a\ncompetitive disadvantage to Company.\n4-\n(2) Covenant Not to Solicit Customers or Active Prospects. Employee will not i) provide, sell, or market; ii) assist in the provision, selling or\nmarketing of; or iii) attempt to provide, sell or market any Competing Products to any of Company’s Customers or Active Prospects located in the\nRestricted Geographic Area.\n(3) Covenant Not to Interfere with Business Relationships. Employee will not, within the Restricted Geographic Area, urge, induce or seek to\ninduce any of Company’s independent contractors, subcontractors, distributors, brokers, consultants, sales representatives, customers, vendors,\nsuppliers or any other person or entity with whom Company has a business relationship at the time of Employee’s separation from Company\nemployment to terminate its or their relationship with, or representation of, Company or to cancel, withdraw, reduce, limit or in any manner modify\nany such person’s or entity’s business with, or representation of, Company.\nor advise any other person or entity to employ or solicit for employment, any individual employed by Company at the time of Employee’s separation\nfrom Company employment, or otherwise directly or indirectly induce or entice any such employee to leave his/her employment with Company to\nwork for, consult with, provide services to, or lend assistance to any Competing Organization.\nCompany’s products, processes, or services; or about Company’s past, present and future officers, directors, employees, attorneys and agents.\nDisparaging or derogatory statements include, but are not limited to, negative statements regarding Company’s business or other practices; provided,\nhowever, nothing herein shall prohibit Employee from providing any information as may be compelled by law or legal process.\n8. Reasonableness of Terms. Employee acknowledges and agrees that the restrictive covenants contained in this Agreement restrict Employee\nfrom engaging in activities for a competitive purpose and are reasonably necessary to protect Company’s legitimate interests in Confidential\nInformation, Inventions, and goodwill. Additionally, Employee acknowledges and agrees that the restrictive covenants are reasonable in all respects,\nincluding, but not limited to, temporal duration, scope of prohibited activities and geographic area. Employee further acknowledges and agrees that\nthe restrictive covenants set forth in this Agreement will not pose any hardship on Employee and that Employee will reasonably be able to earn an\nequivalent livelihood without violating any provision of this Agreement.\n9. Non-Competition Period Payments. To the extent Employee is denied a specific employment position that would otherwise be offered to\nEmployee by a Competing Organization solely because of the restrictive covenant provisions of Section 7 of this Agreement, and provided\nEmployee satisfies all conditions stated herein, then upon expiration of the period of time represented by any severance benefits Employee was\noffered, Company will make payments to Employee equal to Employee’s monthly base pay at the time of Employee’s separation from Company\nemployment (exclusive of bonus and other extra compensation and any other employee benefits) for each month of such unemployment through the\nend of the Restricted Period.\n(a) Expiration of Severance Benefits. Severance benefits shall be deemed to have expired at the conclusion of the period of time represented by\nthe total amount of any severance benefits offered to\n_5-\nEmployee (even if such offered severance benefits are not actually paid as a result of action or inaction on the part of Employee), including but not\nlimited to basic severance benefits, supplemental severance benefits and severance benefits payable pursuant to a change in control severance\nagreement to which Employee is a party.\nCompany detailed written documentation supporting eligibility for payment, including, at a minimum, (a) the name and location of the Competing\nOrganization that would have employed Employee but for the provisions of Section 7 of this Agreement, (b) the title, nature, and detailed job\nresponsibilities of the employment position with the Competing Organization that Employee was denied, (c) the date Employee was denied the\nemployment position, and (d) the name and contact information of a managerial employee at the Competing Organization who has sufficient\nauthority to confirm that Employee was denied this specific employment position with the Competing Organization solely because Employee is\nsubject to the provisions of Section 7 of this Agreement (the “eligibility documentation™). Upon receipt of the eligibility documentation, Company\nwill determine eligibility for payment and, if eligibility is established, payments will commence as of the date of Company’s receipt of the eligibility\ndocumentation.\nis obligated to diligently seek and pursue replacement employment that does not violate Section 7 of this Agreement (“replacement employment”)\nduring any period in which Employee seeks and/or accepts payment from Company under this Section 9. After eligibility for non-competition period\npayments is established, Employee will, on or before the 15t day of each month of eligibility for continued payments, submit to Company a written\nstatement (i) identifying by name and address all prospective employers with whom Employee has applied or inquired about employment;\n(ii) identifying positions sought with each listed employer and specific actions taken in seeking each position; (iii) describing all other efforts made\nto obtain replacement employment; and (iv) describing any offers of employment received, including the name of the employer; the nature, title, and\ncompensation terms of the position offered; the actual or anticipated start date if the offer has been accepted; and the reason(s) for declining if the\noffer was declined.\nCompeting Organization solely because of the restrictive covenant provisions of Section 7 of this Agreement but obtains replacement employment,\nand the monthly compensation (including base pay, commissions, incentive compensation, bonuses and other compensation) for the replacement\nemployment is less than Employee’s monthly base pay at the time of Employee’s separation from employment with Company, Company agrees to\npay Employee the difference for each such month through the end of the Restricted Period, again upon expiration of any severance benefits which\nEmployee was offered and provided Employee satisfies all conditions stated herein. Employee shall submit to Company payroll records (as well as\nany other records reasonably requested by Company) showing all compensation received by Employee from the replacement employment as a\ncondition of Company’s payment of Non-Competition Period Payments covering any period of time when Employee is working in replacement\nemployment.\n(e) Company’s Right To Provide Release of Obligations in Lieu of Non-Competition Period Payments. Notwithstanding any of the foregoing\nprovisions of this Section 9, Company reserves the right to release Employee from Employee’s obligations under Section 7 of this Agreement at any\ntime during the Restricted Period, in full or in sufficient part to allow Employee to accept employment that would otherwise be prohibited under this\nAgreement, at which time Company’s payment obligations under this Section 9 shall cease immediately and Employee shall not be entitled to any\nfurther such payments or compensation.\n-6-\n10. Severability, Modification of Restrictions: The covenants and restrictions in this Agreement are separate and divisible, and to the extent\nany clause, portion or section of this Agreement is determined to be unenforceable or invalid for any reason, Company and Employee acknowledge\nand agree that such unenforceability or invalidity shall not affect the enforceability or validity of the remainder of the Agreement. If any particular\ncovenant, provision or clause of this Agreement is determined to be unreasonable or unenforceable for any reason, including, without limitation,\ntemporal duration, scope of prohibited activity, and/or scope of geographic area, Company and Employee acknowledge and agree that such\ncovenant, provision or clause shall automatically be deemed reformed to have the closest effect permitted by applicable law to the original form and\nshall be given effect and enforced as so reformed to whatever extent would be reasonable and enforceable under applicable law. The parties agree\nthat any court interpreting the provisions of this Agreement shall have the authority, if necessary, to reform any such provision to make it enforceable\nunder applicable law.\n11. Remedies. Employee acknowledges that a breach or threatened breach by Employee of this Agreement will give rise to irreparable injury\nto Company and that money damages will not be adequate relief for such injury. Accordingly, Employee agrees that Company shall be entitled to\nobtain injunctive relief, including, but not limited to, temporary restraining orders, preliminary injunctions and/or permanent injunctions, without\nhaving to post any bond or other security, to restrain or prohibit such breach or threatened breach, in addition to any other legal remedies which may\nbe available. In addition to all other relief to which it shall be entitled, Company shall be entitled to cease all payments to which Employee would\notherwise be entitled under Section 9 hereto; continue to enforce this Agreement; recover from Employee all payments made under Section 9 to the\nextent attributable to a time during which Employee was in violation of the covenants for which payment was made; and recover from Employee all\nlitigation costs and attorneys’ fees incurred by Company in any action or proceeding relating to this Agreement in which Company prevails in any\nrespect, including, but not limited to, any action or proceeding in which Company seeks enforcement of this Agreement or seeks relief from\nEmployee’s violation of this Agreement.\n12. Survival of Obligations. Employee acknowledges and agrees that Employee’s obligations under this Agreement, including, without\nlimitation, Employee’s non-disclosure and non-competition obligations, shall survive the termination of Employee’s employment with Company,\nwhether such termination is with or without cause and whether it is voluntary or involuntary. Employee acknowledges and agrees that nothing in this\nAgreement alters the at-will nature of Employee’s employment and that either Company or Employee may terminate the employment relationship at\nany time, with or without cause or notice. Employee further acknowledges and agrees that: (a) Employee’s non-disclosure, non-disparagement, non-\nsolicitation and non-competition covenants set forth in Sections 2 and 7 of this Agreement shall be construed as independent covenants and that no\nbreach of any contractual or legal duty by Company shall be held sufficient to excuse or terminate Employee’s obligations or to preclude Company\nfrom obtaining injunctive relief or other remedies for Employee’s violation or threatened violation of such covenants, and (b) the existence of any\nclaim or cause of action by Employee against Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to\nCompany’s enforcement of Employee’s obligations under Sections 2 and 7 of this Agreement.\n \n13. Governing Law and Choice of Forum. This Agreement shall be construed and enforced in accordance with the laws of the State of\nIndiana, notwithstanding any state’s choice-of-law rules to the contrary. The parties agree that any legal action relating to this Agreement shall be\ncommenced and maintained exclusively before any appropriate state court located in Kosciusko County or the United States District Court for the\nNorthern District of Indiana, South Bend Division. The parties hereby submit to the jurisdiction of such courts and waive any right to challenge or\notherwise object to personal jurisdiction or venue, in any action commenced or maintained in such courts. Language translations aside, the English\nversion shall govern.\n_7-\n14. Successors and Assigns. Company shall have the right to assign this Agreement, and, accordingly, this Agreement shall inure to the\nbenefit of, and may be enforced by, any and all successors and assigns of Company, including without limitation by asset assignment, stock sale,\nmerger, consolidation or other corporate reorganization, and shall be binding on Employee. The services to be provided by Employee to Company\nare personal to Employee, and Employee shall not have the right to assign Employee’s duties under this Agreement.\n15. Modification. This Agreement may not be amended, supplemented, or modified except by a written document signed by both Employee\nand a duly authorized officer of Company.\n16. No Waiver. The failure of Company to insist in any one or more instances upon performance of any provision of this Agreement or to\npursue its rights hereunder shall not be construed as a waiver of any such provisions or the relinquishment of any such rights.\n17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which when taken\ntogether will constitute one and the same agreement.\n18. Entire Agreement. This Agreement, including Recitals, constitutes the entire agreement of the parties with respect to the subjects\nspecifically addressed herein, and supersedes any prior agreements, understandings, or representations, oral or written, on the subjects addressed\nherein. Notwithstanding the foregoing, to the extent the employee has an existing non-competition, confidentiality, and/or non-solicitation agreement\nin favor of Company and has breached or violated the terms thereof, Company may continue to enforce its rights and remedies under and pursuant to\nsuch existing agreement.\nEmployee’s signature below indicates that Employee has read the entire Agreement, understands what Employee is signing, and is signing the\nAgreement voluntarily. Employee agrees that Company advised Employee to consult with an attorney prior to signing the Agreement.\n“EMPLOYEE”\n(Employee Signature)\nPrinted Name:\nDate:\n“COMPANY”\nBy:\nPrinted Name:\nTitle:\nDate:	EX-10.2 3 d403161dex102.htm EX-10.2\nExhibit 10.2\nCORPORATE EXECUTIVE CONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nThis Corporate Executive Confidentiality, Non-Competition and Non-Solicitation Agreement ("Agreement") is made by and between Zimmer,\nInc., a corporation having its principal headquarters in Warsaw, Indiana, and\n("Employee").\nRecitals\nA. For purposes of this Agreement, the term "Company" means Zimmer, Inc. and/or any or each of its affiliates, parents, or direct or\nindirect subsidiaries, as well as any successor-in-interest to Zimmer, Inc. and/or to any of its direct or indirect subsidiaries, affiliates, or parents.\nB. Employee is employed or has been offered employment by Company in an executive and/or high-level managerial capacity in which\nEmployee will have extensive access to trade secrets and confidential information of Company.\nC. Company has offered Employee the grant of certain equity-based awards under an equity incentive plan or program of the Company,\ncontingent upon Employee's entering into this Agreement.\nAgreement\nNOW, THEREFORE, in consideration of the foregoing recitals, the promises contained herein and other good and valuable consideration, the\nreceipt and sufficiency of which are hereby acknowledged, Company and Employee agree to be legally bound as follows:\n1. Acknowledgements Employee acknowledges that Company is engaged in the highly competitive business of the development,\nmanufacture, distribution, and sale of orthopaedic medical, oral rehabilitation, spine and/or trauma devices, products, processes and services, among\nother products and services, and that Employee serves in an executive and/or high-level managerial capacity for Company and in that capacity\nEmployee has and/or will have access to and will gain knowledge of substantial trade secrets and confidential information of Company.\n2. Non-Disclosure and Ownership of Confidential Information. Employee acknowledges that Confidential Information is a valuable,\nspecial, and unique asset of Company, and solely the property of Company, and agrees to the following:\n(a) Confidentia Information Defined. The term "Confidential Information" includes, but is not limited to, any and all of Company's trade\nsecrets, confidential and proprietary information and all other information and data of Company that is not generally known to the public or other\nthird\nparties\nwho\ncould derive economic value from its use or disclosure. Confidential Information includes, without limitation, confidential business\nmethods and processes, research and development information, business plans and strategies, marketing plans and strategies, information pertaining\nto current and prospective customers, information pertaining to distributors, pricing information, costing information, non-public financial\ninformation, personnel information, and information about current and prospective products or services, whether or not reduced to writing or other\ntangible medium of expression, including work product created by Employee in rendering services for Company.\n(b) Non-Disclosure of Confidential Information. During Employee's employment with Company and thereafter, Employee will not disclose,\ntransfer, or use (or seek to induce others to disclose,\ntransfer, or use) any Confidential Information for any purpose other than i) disclosure to authorized employees and agents of Company who are\nbound to maintain the confidentiality of the Confidential Information; and/or ii) for authorized purposes during the course of Employee's\nemployment in furtherance of Company's business. Employee's non-disclosure obligations shall continue as long as the Confidential Information\nremains confidential and shall not apply to information that becomes generally known to the public through no fault or action of Employee.\n(c) Protection of Confidential Information. Employee will notify Company in writing of any circumstances which may constitute unauthorized\ndisclosure, transfer, or use of Confidential Information. Employee will use Employee's best efforts to protect Confidential Information from\nunauthorized disclosure, transfer, or use. Employee will implement and abide by all procedures adopted by Company to prevent unauthorized\ndisclosure, transfer, or use of Confidential Information.\n3. Ownership of Intellectual Property.\n(a) Invention Defined. The term "Invention" includes, but is not limited to ideas, programs, processes, systems, intellectual property, works of\nauthorship, copyrightable materials, discoveries, and/or improvements which Employee discovers, invents, originates, develops, makes, authors,\nor\nconceives alone or in conjunction with others during Employee's employment with Company and/or within six (6) months after Employee's\nemployment ends which relate to Company's present or future business. An Invention is covered by this Agreement regardless of whether i)\nEmployee conceived of the Invention in the scope of Employee's employment; ii) the Invention is patentable; or iii) Company takes any action to\ncommercialize or develop the Invention.\n(b) Ownership of Inventions. Inventions are solely the property of Company. Employee agrees that by operation of law and/or the effect of this\nAgreement Employee does not have any rights, title, or interest in any Inventions. Notwithstanding, Employee may be recognized as the inventor of\nan Invention without retaining any other rights associated therewith.\n(c) Disclosure and Assignment of Inventions. Employee hereby assigns to Company all right, title and interest Employee may have in any\nInventions that are discovered, invented, originated, developed, made, authored, or conceived by Employee (whether alone or with others) during\nEmployee's employment with Company and/or within six (6) months after Employee's employment ends which relate to Company's present or\nfuture business. Employee agrees to: (i) promptly disclose all such Inventions in writing to Company; (ii) keep complete and accurate records of all\nsuch Inventions, which records shall be Company property and shall be retained on Company premises; and (iii) execute such documents and do\nsuch other acts as may be necessary in the opinion of Company to establish and preserve Company's property rights in all such Inventions. This\nsection shall not apply to any Invention for which no equipment, supplies, facility or trade secret information of Company was used and which was\ndeveloped entirely on Employee's own time, and (1) which does not relate (a) directly to the business of Company, or (b) to Company's actual\nor\ndemonstrably anticipated research or development, and (2) which does not result from any work performed by Employee for Company.\n(d) Works of Authorship. All written, graphic or recorded material and all other works of authorship fixed in a tangible medium of expression\nmade or created by Employee, solely or jointly with others, during Employee's employment with Company and relating to Company's business,\nactual or contemplated, shall be the exclusive property of Company (collectively "Works"). Company will have the exclusive right to copyright such\nWorks. Employee agrees that if any Work created while employed by Company, whether or not created at the direction of Company, is\ncopyrightable, such Work will be a "work made for hire," as that term is defined in the copyright laws of the United States. If, for any reason, any\ncopyrightable Works created by Employee are excluded from that definition, Employee hereby assigns and conveys to Company all right, title and\ninterest (including any copyright and renewals) in such Works.\n-2-\n(e) Attribution and Use of Works and Inventions; Waiver of Assertion of "Moral" Rights in Inventions and Works. Employee agrees that\nCompany and its licensees are not required to designate Employee as author, inventor or developer of any Works or Inventions when distributed or\notherwise. Employee hereby waives, and agrees not to assert, any "moral" rights in any Inventions and Works. Employee agrees that Company and\nits licensees shall have sole discretion with regard to how and for what purposes any Inventions or Works are used or distributed.\n(f)\nEmployee Cooperation in Establishment of Company Proprietary Rights. Employee will sign documents of assignment, declarations and\nother documents and take all other actions reasonably required by Company, at Company's expense, to perfect and enforce any of its proprietary\nrights. In the event Company is unable, for any reason whatsoever, to secure Employee's signature to any lawful or necessary documents required to\napply for, prosecute, perfect, or assign any United States or foreign application for Letters Patent, trademark, copyright registration, or other filing\nto\nprotect any Invention or Work, Employee hereby irrevocably designates and appoints Company and its duly authorized officers and agents as\nEmployee's agent and attorney in fact, to act for and on Employee's behalf, to execute and file any such application, registration or other filing, and\nto do all other lawfully permitted acts to further the prosecution, issuance or assignment of Letters Patent or other protections on such Inventions,\nor\nregistrations for trademark or copyright or other protections on such Works, with the same force and effect as if executed by Employee.\n4. Return of Confidential Information and Company Property.. Immediately upon termination of Employee's employment with Company,\nEmployee shall return to Company all of Company's property relating to Company's business, including without limitation all of Company's\nproperty which is in the possession, custody, or control of Employee such as Confidential Information, documents, hard copy files, copies of\ndocuments and electronic information/files.\n5. Obligations to Other Entities or Persons. Employee warrants that Employee is not bound by the terms of a confidentiality agreement or\nany\nother\nlegal\nobligation\nwhich\nwould\neither\npreclude\nor\nlimit\nEmployee\nfrom\ndisclosing\nor\nusing\nany\nof\nEmployee's\nideas,\ninventions,\ndiscoveries\nor other information or otherwise fulfilling Employee's obligations to Company. While employed by Company, Employee shall not disclose or use\nany confidential information belonging to another entity or other person.\n6. Conflict of Interest and Duty. of Loyalty. During Employee's employment with Company, Employee shall not engage, directly or\nindirectly, in any activity, employment or business venture, whether or not for remuneration, that i) is competitive with Company's business;\nii)\ndeprives or potentially could deprive Company of any business opportunity; iii) conflicts or potentially could conflict with\nCompany's\nbusiness\ninterests; or iv) is otherwise detrimental to Company, including but not limited to preparations to engage in any of the foregoing activities.\n7. Restrictive Covenants. Employee agrees to, and covenants to comply with, each of the following separate and divisible restrictions:\n(a) Definitions.\n(1) "Competing Product" is defined as any product, process or service that is similar to (or would serve as a substitute for) and competitive\nwith any product, process or service that Company is researching, developing, manufacturing, distributing, selling and/or providing at the time of\nEmployee's termination of employment with Company.\n-3-\n(2) "Competing Organization" is defined as any organization that researches, develops, manufactures, markets, distributes and/or sells one or\nmore Competing Products. A Competing Organization is diversified if it operates multiple, independently operating business divisions, units, lines or\nsegments some of which do not research, develop, manufacture, market, distribute and/or sell any Competing Products.\n(3) "Prohibited Capacity" is defined as (a) any same or similar capacity to that held by Employee at any time during Employee's last two\n(2)\nyears of employment with Company; (b) any executive or managerial capacity; or (c) any capacity in which Employee's knowledge\nof\nConfidential Information and/or Inventions would render Employee's assistance a competitive advantage to the Competing Organization.\n(4) "Restricted Geographic Area" is defined as all countries, territories, and states in which Company is doing business or is selling its\nproducts at the time of termination of Employee's employment with Company. Employee acknowledges that this geographic scope is reasonable\ngiven Employee's position with Company, the international scope of Company's business; and the fact that Employee could compete with Company\nfrom anywhere Company does business.\n(5) "Restricted Period" is defined as the date Employee executes this Agreement, continuing through the eighteen (18) months after the\nEmployee's last day of employment with Company unless otherwise extended by Employee's breach of this Agreement. The running time on the\nRestricted Period shall be suspended during any period in which Employee is in violation of any of the restrictive covenants set forth herein, and all\nrestrictions shall automatically be extended by the period Employee was in violation of any such restrictions.\n(6) "Customer" is defined as any person or entity with respect to whom, as of the date of Employee's separation from Company employment\nor at any time during the two years prior to such separation, Company sold or provided any products and/or services.\n(7) "Active Prospect" is defined as any person or entity that Company individually and specifically marketed to and/or held discussions with\nregarding the distribution and/or sale of any of Company's products, processes or services at any time during the last six (6) months of Employee's\nemployment with Company.\n(b) Restrictive Covenants. During the Restricted Period, Employee agrees to be bound by each of the following independent and divisible\nrestrictions:\n(1) Covenant Not to Compete.\n(A) Employee will not, within the Restricted Geographic Area, be employed by, work for, consult with, provide services to, or lend assistance to any\nCompeting Organization in a Prohibited Capacity.\n(B) Employee may be employed by, work for, consult with, provide services to, or lend assistance to a Competing Organization provided that: i) the\nCompeting Organization's business is diversified; ii) the part of the Competing Organization's business with which Employee will be affiliated\nwould not, evaluated on a stand-alone basis, be a Competing Organization; iii) Employee's affiliation with the Competing Organization does not\ninvolve any Competing Products; iv) Employee provides Company a written description of Employee's anticipated activities on behalf of the\nCompeting Organization which includes, without limitation, an assurance satisfactory to Company that Employee's affiliation with the Competing\nOrganization does not constitute a Prohibited Capacity; and v) Employee's affiliation with the Competing Organization does not constitute a\ncompetitive disadvantage to Company.\n-4-\n(2) Covenant Not to Solicit Customers or Active Prospects. Employee will not i) provide, sell, or market; ii) assist in the provision, selling\nor\nmarketing of; or iii) attempt to provide, sell or market any Competing Products to any of Company's Customers or Active Prospects located in the\nRestricted Geographic Area.\n(3) Covenant Not to Interfere with Business Relationships. Employee will not, within the Restricted Geographic Area, urge, induce or seek to\ninduce any of Company's independent contractors, subcontractors, distributors, brokers, consultants, sales representatives, customers, vendors,\nsuppliers or any other person or entity with whom Company has a business relationship at the time of Employee's separation from Company\nemployment to terminate its or their relationship with, or representation of, Company or to cancel, withdraw, reduce, limit or in any manner modify\nany such person's or entity's business with, or representation of, Company.\n(4) Covenant Not to Solicit Company Employees. Employee will not, within the Restricted Geographic Area, employ, solicit for employment,\nor\nadvise\nany\nother\nperson\nor\nentity\nto\nemploy\nor\nsolicit\nfor\nemployment,\nany\nindividual\nemployed\nby\nCompany\nat\nthe\ntime\nof\nEmployee's\nseparation\nfrom Company employment, or otherwise directly or indirectly induce or entice any such employee to leave his/her employment with Company to\nwork for, consult with, provide services to, or lend assistance to any Competing Organization.\n(5) Covenant Not to Disparage Company.. Employee will not make or publish any disparaging or derogatory statements about Company; about\nCompany's products, processes, or services; or about Company's past, present and future officers, directors, employees, attorneys and agents.\nDisparaging or derogatory statements include, but are not limited to, negative statements regarding Company's business or other practices; provided,\nhowever, nothing herein shall prohibit Employee from providing any information as may be compelled by law or legal process.\n8. Reasonableness of Terms. Employee acknowledges and agrees that the restrictive covenants contained in this Agreement restrict Employee\nfrom engaging in activities for a competitive purpose and are reasonably necessary to protect Company's legitimate interests in Confidential\nInformation, Inventions, and goodwill. Additionally, Employee acknowledges and agrees that the restrictive covenants are reasonable in all respects,\nincluding, but not limited to, temporal duration, scope of prohibited activities and geographic area. Employee further acknowledges and agrees that\nthe restrictive covenants set forth in this Agreement will not pose any hardship on Employee and that Employee will reasonably be able to earn\nan\nequivalent livelihood without violating any provision of this Agreement.\n9. Non-Competition Period Payments. To the extent Employee is denied a specific employment position that would otherwise be offered\nto\nEmployee by a Competing Organization solely because of the restrictive covenant provisions of Section 7 of this Agreement, and provided\nEmployee satisfies all conditions stated herein, then upon expiration of the period of time represented by any severance benefits Employee was\noffered, Company will make payments to Employee equal to Employee's monthly base pay at the time of Employee's separation from Company\nemployment (exclusive of bonus and other extra compensation and any other employee benefits) for each month of such unemployment through the\nend of the Restricted Period.\n(a) Expiration of Severance Benefits. Severance benefits shall be deemed to have expired at the conclusion of the period of time represented by\nthe total amount of any severance benefits offered to\n-5-\nEmployee (even if such offered severance benefits are not actually paid as a result of action or inaction on the part of Employee), including but\nnot\nlimited to basic severance benefits, supplemental severance benefits and severance benefits payable pursuant to a change in control severance\nagreement to which Employee is a party.\n(b) Verification of Eligibility for Non-Competition Period Payments. To qualify for payments under this Section 9, Employee must provide\nCompany detailed written documentation supporting eligibility for payment, including, at a minimum, (a) the name and location of\nthe\nCompeting\nOrganization that would have employed Employee but for the provisions of Section 7 of this Agreement, (b) the title, nature, and detailed job\nresponsibilities of the employment position with the Competing Organization that Employee was denied, (c) the date Employee was denied the\nemployment position, and (d) the name and contact information of a managerial employee at the Competing Organization who has sufficient\nauthority to confirm that Employee was denied this specific employment position with the Competing Organization solely because Employee\nis\nsubject to the provisions of Section 7 of this Agreement (the "eligibility documentation"). Upon receipt of the eligibility documentation, Company\nwill determine eligibility for payment and, if eligibility is established, payments will commence as of the date of Company's receipt of the eligibility\ndocumentation.\n(c) Obligation to Pursue Replacement Employment and Verification of Continued Eligibility fon Non-Competition Period Payments. Employee\nis obligated to diligently seek and pursue replacement employment that does not violate Section 7 of this Agreement ("replacement employment")\nduring any period in which Employee seeks and/or accepts payment from Company under this Section 9. After eligibility for non-competition period\npayments is established, Employee will, on or before the 15th day of each month of eligibility for continued payments, submit to Company a written\nstatement (i) identifying by name and address all prospective employers with whom Employee has applied or inquired about employment;\n(ii) identifying positions sought with each listed employer and specific actions taken in seeking each position; (iii) describing all other efforts made\nto obtain replacement employment; and (iv) describing any offers of employment received, including the name of the employer; the nature, title, and\ncompensation terms of the position offered; the actual or anticipated start date if the offer has been accepted; and the reason(s) for declining if the\noffer was declined.\n(d) Effect of Replacement Employment on Non-Competition Period Payments. If Employee is denied a specific employment position with\na\nCompeting Organization solely because of the restrictive covenant provisions of Section 7 of this Agreement but obtains replacement employment,\nand the monthly compensation (including base pay, commissions, incentive compensation, bonuses and other compensation) for the replacement\nemployment is less than Employee's monthly base pay at the time of Employee's separation from employment with Company, Company agrees to\npay Employee the difference for each such month through the end of the Restricted Period, again upon expiration of any severance benefits which\nEmployee was offered and provided Employee satisfies all conditions stated herein. Employee shall submit to Company payroll records (as well\nas\nany other records reasonably requested by Company) showing all compensation received by Employee from the replacement employment as a\ncondition of Company's payment of Non-Competition Period Payments covering any period of time when Employee is working in replacement\nemployment.\n(e) Company's Right To Provide Release of Obligations in Lieu of Non-Competition Period Payments. Notwithstanding any of the foregoing\nprovisions of this Section 9, Company reserves the right to release Employee from Employee's obligations under Section 7 of this Agreement at any\ntime during the Restricted Period, in full or in sufficient part to allow Employee to accept employment that would otherwise be prohibited under this\nAgreement, at which time Company's payment obligations under this Section 9 shall cease immediately and Employee shall not be entitled to any\nfurther such payments or compensation.\n-6-\n10. Severability, Modification of Restrictions: The covenants and restrictions in this Agreement are separate and divisible, and to the extent\nany clause, portion or section of this Agreement is determined to be unenforceable or invalid for any reason, Company and Employee acknowledge\nand agree that such unenforceability or invalidity shall not affect the enforceability or validity of the remainder of the Agreement. If any particular\ncovenant, provision or clause of this Agreement is determined to be unreasonable or unenforceable for any reason, including, without limitation,\ntemporal duration, scope of prohibited activity, and/or scope of geographic area, Company and Employee acknowledge and agree that such\ncovenant, provision or clause shall automatically be deemed reformed to have the closest effect permitted by applicable law to the original form and\nshall be given effect and enforced as so reformed to whatever extent would be reasonable and enforceable under applicable law. The parties agree\nthat any court interpreting the provisions of this Agreement shall have the authority, if necessary, to reform any such provision to make it enforceable\nunder applicable law.\n11. Remedies. Employee acknowledges that a breach or threatened breach by Employee of this Agreement will give rise to irreparable injury\nto Company and that money damages will not be adequate relief for such injury. Accordingly, Employee agrees that Company shall be entitled to\nobtain injunctive relief, including, but not limited to, temporary restraining orders, preliminary injunctions and/or permanent injunctions, without\nhaving to post any bond or other security, to restrain or prohibit such breach or threatened breach, in addition to any other legal remedies which\nmay\nbe available. In addition to all other relief to which it shall be entitled, Company shal be entitled to cease all payments to which Employee would\notherwise be entitled under Section 9 hereto; continue to enforce this Agreement; recover from Employee all payments made under Section 9 to the\nextent attributable to a time during which Employee was in violation of the covenants for which payment was made; and recover from Employee\nall\nlitigation costs and attorneys' fees incurred by Company in any action or proceeding relating to this Agreement in which Company prevails in\nany\nrespect, including, but not limited to, any action or proceeding in which Company seeks enforcement of this Agreement or seeks relief from\nEmployee's violation of this Agreement.\n12. Survival of Obligations. Employee acknowledges and agrees that Employee's obligations under this Agreement, including, without\nlimitation, Employee's non-disclosure and non-competition obligations, shall survive the termination of Employee's employment with Company,\nwhether such termination is with or without cause and whether it is voluntary or involuntary. Employee acknowledges and agrees that nothing in this\nAgreement alters the at-will nature of Employee's employment and that either Company or Employee may terminate the employment relationship at\nany time, with or without cause or notice. Employee further acknowledges and agrees that: (a) Employee's non-disclosure, non-disparagement, non-\nsolicitation and non-competition covenants set forth in Sections 2 and 7 of this Agreement shall be construed as independent covenants and that no\nbreach of any contractual or legal duty by Company shall be held sufficient to excuse or terminate Employee's obligations or to preclude Company\nfrom obtaining injunctive relief or other remedies for Employee's violation or threatened violation of such covenants, and (b) the existence of any\nclaim or cause of action by Employee against Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to\nCompany's enforcement of Employee's obligations under Sections 2 and 7 of this Agreement.\n13. Governing Law and Choice of Forum. This Agreement shall be construed and enforced in accordance with the laws of the State of\nIndiana, notwithstanding any state's choice-of-law rules to the contrary. The parties agree that any legal action relating to this Agreement shall be\ncommenced and maintained exclusively before any appropriate state court located in Kosciusko County or the United States District Court for the\nNorthern District of Indiana, South Bend Division. The parties hereby submit to the jurisdiction of such courts and waive any right to challenge or\notherwise object to personal jurisdiction or venue, in any action commenced or maintained in such courts. Language translations aside, the English\nversion shall govern.\n-7-\n14. Successors and Assigns. Company shall have the right to assign this Agreement, and, accordingly, this Agreement shall inure to the\nbenefit of, and may be enforced by, any and all successors and assigns of Company, including without limitation by asset assignment, stock sale,\nmerger, consolidation or other corporate reorganization, and shall be binding on Employee. The services to be provided by Employee to Company\nare personal to Employee, and Employee shall not have the right to assign Employee's duties under this Agreement.\n15. Modification. This Agreement may not be amended, supplemented, or modified except by a written document signed by both Employee\nand a duly authorized officer of Company.\n16. No Waiver. The failure of Company to insist in any one or more instances upon performance of any provision of this Agreement or to\npursue its rights hereunder shall not be construed as a waiver of any such provisions or the relinquishment of any such rights.\n17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which when taken\ntogether will constitute one and the same agreement.\n18. Entire Agreement. This Agreement, including Recitals, constitutes the entire agreement of the parties with respect to the subjects\nspecifically addressed herein, and supersedes any prior agreements, understandings, or representations, oral or written, on the subjects addressed\nherein. Notwithstanding the foregoing, to the extent the employee has an existing non-competition, confidentiality, and/or non-solicitation agreement\nin\nfavor of Company and has breached or violated the terms thereof, Company may continue to enforce its rights and remedies under and pursuant to\nsuch existing agreement.\nEmployee's signature below indicates that Employee has read the entire Agreement, understands what Employee is signing, and is signing the\nAgreement voluntarily. Employee agrees that Company advised Employee to consult with an attorney prior to signing the Agreement.\n"EMPLOYEE"\n(Employee Signature)\nPrinted Name:\nDate:\n"COMPANY"\nBy:\nPrinted Name:\nTitle:\nDate:\n-8-	EX-10.2 3 d403161dex102.htm EX-10.2\nExhibit 10.2\nCORPORATE EXECUTIVE CONFIDENTIALITY, NON-COMPETITION\nAND NON-SOLICITATION AGREEMENT\nThis Corporate Executive Confidentiality, Non-Competition and Non-Solicitation Agreement (“Agreement”) is made by and between Zimmer,\nInc., a corporation having its principal headquarters in Warsaw, Indiana, and\n(“Employee”).\nRecitals\nA. For purposes of this Agreement, the term “Company” means Zimmer, Inc. and/or any or each of its affiliates, parents, or direct or\nindirect subsidiaries, as well as any successor-in-interest to Zimmer, Inc. and/or to any of its direct or indirect subsidiaries, affiliates, or parents.\nB. Employee is employed or has been offered employment by Company in an executive and/or high-level managerial capacity in which\nEmployee will have extensive access to trade secrets and confidential information of Company.\nC. Company has offered Employee the grant of certain equity-based awards under an equity incentive plan or program of the Company,\ncontingent upon Employee’s entering into this Agreement.\nAgreement\nNOW, THEREFORE, in consideration of the foregoing recitals, the promises contained herein and other good and valuable consideration, the\nreceipt and sufficiency of which are hereby acknowledged, Company and Employee agree to be legally bound as follows:\n1. Acknowledgements. Employee acknowledges that Company is engaged in the highly competitive business of the development,\nmanufacture, distribution, and sale of orthopaedic medical, oral rehabilitation, spine and/or trauma devices, products, processes and services, among\nother products and services, and that Employee serves in an executive and/or high-level managerial capacity for Company and in that capacity\nEmployee has and/or will have access to and will gain knowledge of substantial trade secrets and confidential information of Company.\n2. Non-Disclosure and Ownership of Confidential Information. Employee acknowledges that Confidential Information is a valuable,\nspecial, and unique asset of Company, and solely the property of Company, and agrees to the following:\n(a) Confidential Information Defined. The term “Confidential Information” includes, but is not limited to, any and all of Company’s trade\nsecrets, confidential and proprietary information and all other information and data of Company that is not generally known to the public or other\nthird parties who could derive economic value from its use or disclosure. Confidential Information includes, without limitation, confidential business\nmethods and processes, research and development information, business plans and strategies, marketing plans and strategies, information pertaining\nto current and prospective customers, information pertaining to distributors, pricing information, costing information, non-public financial\ninformation, personnel information, and information about current and prospective products or services, whether or not reduced to writing or other\ntangible medium of expression, including work product created by Employee in rendering services for Company.\n(b) Non-Disclosure of Confidential Information. During Employee’s employment with Company and thereafter, Employee will not disclose,\ntransfer, or use (or seek to induce others to disclose,\ntransfer, or use) any Confidential Information for any purpose other than i) disclosure to authorized employees and agents of Company who are\nbound to maintain the confidentiality of the Confidential Information; and/or ii) for authorized purposes during the course of Employee’s\nemployment in furtherance of Company’s business. Employee’s non-disclosure obligations shall continue as long as the Confidential Information\nremains confidential and shall not apply to information that becomes generally known to the public through no fault or action of Employee.\n(c) Protection of Confidential Information. Employee will notify Company in writing of any circumstances which may constitute unauthorized\ndisclosure, transfer, or use of Confidential Information. Employee will use Employee’s best efforts to protect Confidential Information from\nunauthorized disclosure, transfer, or use. Employee will implement and abide by all procedures adopted by Company to prevent unauthorized\ndisclosure, transfer, or use of Confidential Information.\n3. Ownership of Intellectual Property.\n(a) Invention Defined. The term “Invention” includes, but is not limited to ideas, programs, processes, systems, intellectual property, works of\nauthorship, copyrightable materials, discoveries, and/or improvements which Employee discovers, invents, originates, develops, makes, authors, or\nconceives alone or in conjunction with others during Employee’s employment with Company and/or within six (6) months after Employee’s\nemployment ends which relate to Company’s present or future business. An Invention is covered by this Agreement regardless of whether i)\nEmployee conceived of the Invention in the scope of Employee’s employment; ii) the Invention is patentable; or iii) Company takes any action to\ncommercialize or develop the Invention.\n(b) Ownership of Inventions. Inventions are solely the property of Company. Employee agrees that by operation of law and/or the effect of this\nAgreement Employee does not have any rights, title, or interest in any Inventions. Notwithstanding, Employee may be recognized as the inventor of\nan Invention without retaining any other rights associated therewith.\n(c) Disclosure and Assignment of Inventions. Employee hereby assigns to Company all right, title and interest Employee may have in any\nInventions that are discovered, invented, originated, developed, made, authored, or conceived by Employee (whether alone or with others) during\nEmployee’s employment with Company and/or within six (6) months after Employee’s employment ends which relate to Company’s present or\nfuture business. Employee agrees to: (i) promptly disclose all such Inventions in writing to Company; (ii) keep complete and accurate records of all\nsuch Inventions, which records shall be Company property and shall be retained on Company premises; and (iii) execute such documents and do\nsuch other acts as may be necessary in the opinion of Company to establish and preserve Company’s property rights in all such Inventions. This\nsection shall not apply to any Invention for which no equipment, supplies, facility or trade secret information of Company was used and which was\ndeveloped entirely on Employee’s own time, and (1) which does not relate (a) directly to the business of Company, or (b) to Company’s actual or\ndemonstrably anticipated research or development, and (2) which does not result from any work performed by Employee for Company.\n(d) Works of Authorship. All written, graphic or recorded material and all other works of authorship fixed in a tangible medium of expression\nmade or created by Employee, solely or jointly with others, during Employee’s employment with Company and relating to Company’s business,\nactual or contemplated, shall be the exclusive property of Company (collectively “Works”). Company will have the exclusive right to copyright such\nWorks. Employee agrees that if any Work created while employed by Company, whether or not created at the direction of Company, is\ncopyrightable, such Work will be a “work made for hire,” as that term is defined in the copyright laws of the United States. If, for any reason, any\ncopyrightable Works created by Employee are excluded from that definition, Employee hereby assigns and conveys to Company all right, title and\ninterest (including any copyright and renewals) in such Works.\n-2-\n(e) Attribution and Use of Works and Inventions; Waiver of Assertion of “Moral” Rights in Inventions and Works. Employee agrees that\nCompany and its licensees are not required to designate Employee as author, inventor or developer of any Works or Inventions when distributed or\notherwise. Employee hereby waives, and agrees not to assert, any “moral” rights in any Inventions and Works. Employee agrees that Company and\nits licensees shall have sole discretion with regard to how and for what purposes any Inventions or Works are used or distributed.\n(f) Employee Cooperation in Establishment of Company Proprietary Rights. Employee will sign documents of assignment, declarations and\nother documents and take all other actions reasonably required by Company, at Company’s expense, to perfect and enforce any of its proprietary\nrights. In the event Company is unable, for any reason whatsoever, to secure Employee’s signature to any lawful or necessary documents required to\napply for, prosecute, perfect, or assign any United States or foreign application for Letters Patent, trademark, copyright registration, or other filing to\nprotect any Invention or Work, Employee hereby irrevocably designates and appoints Company and its duly authorized officers and agents as\nEmployee’s agent and attorney in fact, to act for and on Employee’s behalf, to execute and file any such application, registration or other filing, and\nto do all other lawfully permitted acts to further the prosecution, issuance or assignment of Letters Patent or other protections on such Inventions, or\nregistrations for trademark or copyright or other protections on such Works, with the same force and effect as if executed by Employee.\n4. Return of Confidential Information and Company Property. Immediately upon termination of Employee’s employment with Company,\nEmployee shall return to Company all of Company’s property relating to Company’s business, including without limitation all of Company’s\nproperty which is in the possession, custody, or control of Employee such as Confidential Information, documents, hard copy files, copies of\ndocuments and electronic information/files.\n5. Obligations to Other Entities or Persons. Employee warrants that Employee is not bound by the terms of a confidentiality agreement or\nany other legal obligation which would either preclude or limit Employee from disclosing or using any of Employee’s ideas, inventions, discoveries\nor other information or otherwise fulfilling Employee’s obligations to Company. While employed by Company, Employee shall not disclose or use\nany confidential information belonging to another entity or other person.\n6. Conflict of Interest and Duty of Loyalty. During Employee’s employment with Company, Employee shall not engage, directly or\nindirectly, in any activity, employment or business venture, whether or not for remuneration, that i) is competitive with Company’s business;\nii) deprives or potentially could deprive Company of any business opportunity; iii) conflicts or potentially could conflict with Company’s business\ninterests; or iv) is otherwise detrimental to Company, including but not limited to preparations to engage in any of the foregoing activities.\n7. Restrictive Covenants. Employee agrees to, and covenants to comply with, each of the following separate and divisible restrictions:\n(a) Definitions.\n(1) “Competing Product” is defined as any product, process or service that is similar to (or would serve as a substitute for) and competitive\nwith any product, process or service that Company is researching, developing, manufacturing, distributing, selling and/or providing at the time of\nEmployee’s termination of employment with Company.\n-3-\n(2) “Competing Organization” is defined as any organization that researches, develops, manufactures, markets, distributes and/or sells one or\nmore Competing Products. A Competing Organization is diversified if it operates multiple, independently operating business divisions, units, lines or\nsegments some of which do not research, develop, manufacture, market, distribute and/or sell any Competing Products.\n(3) “Prohibited Capacity” is defined as (a) any same or similar capacity to that held by Employee at any time during Employee’s last two\n(2) years of employment with Company; (b) any executive or managerial capacity; or (c) any capacity in which Employee’s knowledge of\nConfidential Information and/or Inventions would render Employee’s assistance a competitive advantage to the Competing Organization.\n(4) “Restricted Geographic Area” is defined as all countries, territories, and states in which Company is doing business or is selling its\nproducts at the time of termination of Employee’s employment with Company. Employee acknowledges that this geographic scope is reasonable\ngiven Employee’s position with Company, the international scope of Company’s business; and the fact that Employee could compete with Company\nfrom anywhere Company does business.\n(5) “Restricted Period” is defined as the date Employee executes this Agreement, continuing through the eighteen (18) months after the\nEmployee’s last day of employment with Company unless otherwise extended by Employee’s breach of this Agreement. The running time on the\nRestricted Period shall be suspended during any period in which Employee is in violation of any of the restrictive covenants set forth herein, and all\nrestrictions shall automatically be extended by the period Employee was in violation of any such restrictions.\n(6) “Customer” is defined as any person or entity with respect to whom, as of the date of Employee’s separation from Company employment\nor at any time during the two years prior to such separation, Company sold or provided any products and/or services.\n(7) “Active Prospect” is defined as any person or entity that Company individually and specifically marketed to and/or held discussions with\nregarding the distribution and/or sale of any of Company’s products, processes or services at any time during the last six (6) months of Employee’s\nemployment with Company.\n(b) Restrictive Covenants. During the Restricted Period, Employee agrees to be bound by each of the following independent and divisible\nrestrictions:\n(1) Covenant Not to Compete.\n(A) Employee will not, within the Restricted Geographic Area, be employed by, work for, consult with, provide services to, or lend assistance to any\nCompeting Organization in a Prohibited Capacity.\n(B) Employee may be employed by, work for, consult with, provide services to, or lend assistance to a Competing Organization provided that: i) the\nCompeting Organization’s business is diversified; ii) the part of the Competing Organization’s business with which Employee will be affiliated\nwould not, evaluated on a stand-alone basis, be a Competing Organization; iii) Employee’s affiliation with the Competing Organization does not\ninvolve any Competing Products; iv) Employee provides Company a written description of Employee’s anticipated activities on behalf of the\nCompeting Organization which includes, without limitation, an assurance satisfactory to Company that Employee’s affiliation with the Competing\nOrganization does not constitute a Prohibited Capacity; and v) Employee’s affiliation with the Competing Organization does not constitute a\ncompetitive disadvantage to Company.\n-4-\n(2) Covenant Not to Solicit Customers or Active Prospects. Employee will not i) provide, sell, or market; ii) assist in the provision, selling or\nmarketing of; or iii) attempt to provide, sell or market any Competing Products to any of Company’s Customers or Active Prospects located in the\nRestricted Geographic Area.\n(3) Covenant Not to Interfere with Business Relationships. Employee will not, within the Restricted Geographic Area, urge, induce or seek to\ninduce any of Company’s independent contractors, subcontractors, distributors, brokers, consultants, sales representatives, customers, vendors,\nsuppliers or any other person or entity with whom Company has a business relationship at the time of Employee’s separation from Company\nemployment to terminate its or their relationship with, or representation of, Company or to cancel, withdraw, reduce, limit or in any manner modify\nany such person’s or entity’s business with, or representation of, Company.\n(4) Covenant Not to Solicit Company Employees. Employee will not, within the Restricted Geographic Area, employ, solicit for employment,\nor advise any other person or entity to employ or solicit for employment, any individual employed by Company at the time of Employee’s separation\nfrom Company employment, or otherwise directly or indirectly induce or entice any such employee to leave his/her employment with Company to\nwork for, consult with, provide services to, or lend assistance to any Competing Organization.\n(5) Covenant Not to Disparage Company. Employee will not make or publish any disparaging or derogatory statements about Company; about\nCompany’s products, processes, or services; or about Company’s past, present and future officers, directors, employees, attorneys and agents.\nDisparaging or derogatory statements include, but are not limited to, negative statements regarding Company’s business or other practices; provided,\nhowever, nothing herein shall prohibit Employee from providing any information as may be compelled by law or legal process.\n8. Reasonableness of Terms. Employee acknowledges and agrees that the restrictive covenants contained in this Agreement restrict Employee\nfrom engaging in activities for a competitive purpose and are reasonably necessary to protect Company’s legitimate interests in Confidential\nInformation, Inventions, and goodwill. Additionally, Employee acknowledges and agrees that the restrictive covenants are reasonable in all respects,\nincluding, but not limited to, temporal duration, scope of prohibited activities and geographic area. Employee further acknowledges and agrees that\nthe restrictive covenants set forth in this Agreement will not pose any hardship on Employee and that Employee will reasonably be able to earn an\nequivalent livelihood without violating any provision of this Agreement.\n9. Non-Competition Period Payments. To the extent Employee is denied a specific employment position that would otherwise be offered to\nEmployee by a Competing Organization solely because of the restrictive covenant provisions of Section 7 of this Agreement, and provided\nEmployee satisfies all conditions stated herein, then upon expiration of the period of time represented by any severance benefits Employee was\noffered, Company will make payments to Employee equal to Employee’s monthly base pay at the time of Employee’s separation from Company\nemployment (exclusive of bonus and other extra compensation and any other employee benefits) for each month of such unemployment through the\nend of the Restricted Period.\n(a) Expiration of Severance Benefits. Severance benefits shall be deemed to have expired at the conclusion of the period of time represented by\nthe total amount of any severance benefits offered to\n-5-\nEmployee (even if such offered severance benefits are not actually paid as a result of action or inaction on the part of Employee), including but not\nlimited to basic severance benefits, supplemental severance benefits and severance benefits payable pursuant to a change in control severance\nagreement to which Employee is a party.\n(b) Verification of Eligibility for Non-Competition Period Payments. To qualify for payments under this Section 9, Employee must provide\nCompany detailed written documentation supporting eligibility for payment, including, at a minimum, (a) the name and location of the Competing\nOrganization that would have employed Employee but for the provisions of Section 7 of this Agreement, (b) the title, nature, and detailed job\nresponsibilities of the employment position with the Competing Organization that Employee was denied, (c) the date Employee was denied the\nemployment position, and (d) the name and contact information of a managerial employee at the Competing Organization who has sufficient\nauthority to confirm that Employee was denied this specific employment position with the Competing Organization solely because Employee is\nsubject to the provisions of Section 7 of this Agreement (the “eligibility documentation”). Upon receipt of the eligibility documentation, Company\nwill determine eligibility for payment and, if eligibility is established, payments will commence as of the date of Company’s receipt of the eligibility\ndocumentation.\n(c) Obligation to Pursue Replacement Employment and Verification of Continued Eligibility for Non-Competition Period Payments. Employee\nis obligated to diligently seek and pursue replacement employment that does not violate Section 7 of this Agreement (“replacement employment”)\nduring any period in which Employee seeks and/or accepts payment from Company under this Section 9. After eligibility for non-competition period\npayments is established, Employee will, on or before the 15 day of each month of eligibility for continued payments, submit to Company a written\nstatement (i) identifying by name and address all prospective employers with whom Employee has applied or inquired about employment;\n(ii) identifying positions sought with each listed employer and specific actions taken in seeking each position; (iii) describing all other efforts made\nto obtain replacement employment; and (iv) describing any offers of employment received, including the name of the employer; the nature, title, and\ncompensation terms of the position offered; the actual or anticipated start date if the offer has been accepted; and the reason(s) for declining if the\noffer was declined.\n(d) Effect of Replacement Employment on Non-Competition Period Payments. If Employee is denied a specific employment position with a\nCompeting Organization solely because of the restrictive covenant provisions of Section 7 of this Agreement but obtains replacement employment,\nand the monthly compensation (including base pay, commissions, incentive compensation, bonuses and other compensation) for the replacement\nemployment is less than Employee’s monthly base pay at the time of Employee’s separation from employment with Company, Company agrees to\npay Employee the difference for each such month through the end of the Restricted Period, again upon expiration of any severance benefits which\nEmployee was offered and provided Employee satisfies all conditions stated herein. Employee shall submit to Company payroll records (as well as\nany other records reasonably requested by Company) showing all compensation received by Employee from the replacement employment as a\ncondition of Company’s payment of Non-Competition Period Payments covering any period of time when Employee is working in replacement\nemployment.\n(e) Company’s Right To Provide Release of Obligations in Lieu of Non-Competition Period Payments. Notwithstanding any of the foregoing\nprovisions of this Section 9, Company reserves the right to release Employee from Employee’s obligations under Section 7 of this Agreement at any\ntime during the Restricted Period, in full or in sufficient part to allow Employee to accept employment that would otherwise be prohibited under this\nAgreement, at which time Company’s payment obligations under this Section 9 shall cease immediately and Employee shall not be entitled to any\nfurther such payments or compensation.\n-6-\nth\n10. Severability, Modification of Restrictions: The covenants and restrictions in this Agreement are separate and divisible, and to the extent\nany clause, portion or section of this Agreement is determined to be unenforceable or invalid for any reason, Company and Employee acknowledge\nand agree that such unenforceability or invalidity shall not affect the enforceability or validity of the remainder of the Agreement. If any particular\ncovenant, provision or clause of this Agreement is determined to be unreasonable or unenforceable for any reason, including, without limitation,\ntemporal duration, scope of prohibited activity, and/or scope of geographic area, Company and Employee acknowledge and agree that such\ncovenant, provision or clause shall automatically be deemed reformed to have the closest effect permitted by applicable law to the original form and\nshall be given effect and enforced as so reformed to whatever extent would be reasonable and enforceable under applicable law. The parties agree\nthat any court interpreting the provisions of this Agreement shall have the authority, if necessary, to reform any such provision to make it enforceable\nunder applicable law.\n11. Remedies. Employee acknowledges that a breach or threatened breach by Employee of this Agreement will give rise to irreparable injury\nto Company and that money damages will not be adequate relief for such injury. Accordingly, Employee agrees that Company shall be entitled to\nobtain injunctive relief, including, but not limited to, temporary restraining orders, preliminary injunctions and/or permanent injunctions, without\nhaving to post any bond or other security, to restrain or prohibit such breach or threatened breach, in addition to any other legal remedies which may\nbe available. In addition to all other relief to which it shall be entitled, Company shall be entitled to cease all payments to which Employee would\notherwise be entitled under Section 9 hereto; continue to enforce this Agreement; recover from Employee all payments made under Section 9 to the\nextent attributable to a time during which Employee was in violation of the covenants for which payment was made; and recover from Employee all\nlitigation costs and attorneys’ fees incurred by Company in any action or proceeding relating to this Agreement in which Company prevails in any\nrespect, including, but not limited to, any action or proceeding in which Company seeks enforcement of this Agreement or seeks relief from\nEmployee’s violation of this Agreement.\n12. Survival of Obligations. Employee acknowledges and agrees that Employee’s obligations under this Agreement, including, without\nlimitation, Employee’s non-disclosure and non-competition obligations, shall survive the termination of Employee’s employment with Company,\nwhether such termination is with or without cause and whether it is voluntary or involuntary. Employee acknowledges and agrees that nothing in this\nAgreement alters the at-will nature of Employee’s employment and that either Company or Employee may terminate the employment relationship at\nany time, with or without cause or notice. Employee further acknowledges and agrees that: (a) Employee’s non-disclosure, non-disparagement, non-\nsolicitation and non-competition covenants set forth in Sections 2 and 7 of this Agreement shall be construed as independent covenants and that no\nbreach of any contractual or legal duty by Company shall be held sufficient to excuse or terminate Employee’s obligations or to preclude Company\nfrom obtaining injunctive relief or other remedies for Employee’s violation or threatened violation of such covenants, and (b) the existence of any\nclaim or cause of action by Employee against Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to\nCompany’s enforcement of Employee’s obligations under Sections 2 and 7 of this Agreement.\n13. Governing Law and Choice of Forum. This Agreement shall be construed and enforced in accordance with the laws of the State of\nIndiana, notwithstanding any state’s choice-of-law rules to the contrary. The parties agree that any legal action relating to this Agreement shall be\ncommenced and maintained exclusively before any appropriate state court located in Kosciusko County or the United States District Court for the\nNorthern District of Indiana, South Bend Division. The parties hereby submit to the jurisdiction of such courts and waive any right to challenge or\notherwise object to personal jurisdiction or venue, in any action commenced or maintained in such courts. Language translations aside, the English\nversion shall govern.\n-7-\n14. Successors and Assigns. Company shall have the right to assign this Agreement, and, accordingly, this Agreement shall inure to the\nbenefit of, and may be enforced by, any and all successors and assigns of Company, including without limitation by asset assignment, stock sale,\nmerger, consolidation or other corporate reorganization, and shall be binding on Employee. The services to be provided by Employee to Company\nare personal to Employee, and Employee shall not have the right to assign Employee’s duties under this Agreement.\n15. Modification. This Agreement may not be amended, supplemented, or modified except by a written document signed by both Employee\nand a duly authorized officer of Company.\n16. No Waiver. The failure of Company to insist in any one or more instances upon performance of any provision of this Agreement or to\npursue its rights hereunder shall not be construed as a waiver of any such provisions or the relinquishment of any such rights.\n17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but both of which when taken\ntogether will constitute one and the same agreement.\n18. Entire Agreement. This Agreement, including Recitals, constitutes the entire agreement of the parties with respect to the subjects\nspecifically addressed herein, and supersedes any prior agreements, understandings, or representations, oral or written, on the subjects addressed\nherein. Notwithstanding the foregoing, to the extent the employee has an existing non-competition, confidentiality, and/or non-solicitation agreement\nin favor of Company and has breached or violated the terms thereof, Company may continue to enforce its rights and remedies under and pursuant to\nsuch existing agreement.\nEmployee’s signature below indicates that Employee has read the entire Agreement, understands what Employee is signing, and is signing the\nAgreement voluntarily. Employee agrees that Company advised Employee to consult with an attorney prior to signing the Agreement.\n“EMPLOYEE”\n(Employee Signature)\nPrinted Name:\nDate:\n“COMPANY”\nBy:\nPrinted Name:\nTitle:\nDate:\n-8-
+c94fdb196d2502f60e21793b387023de.pdf	effective_date jurisdiction party term	EX-99.(E)(10) 3 dex99e10.htm CONFIDENTIALITY AGREEMENT - CHAIRMAN LEE\nExhibit (e)(10)\neBay, Inc.\n2145 Hamilton Avenue\nSan Jose, California 95125\nwww.ebay.com\nJanuary 17, 2009\neBay Inc.\n2145 Hamilton Avenue\nSan Jose, CA 95125\nDear Sirs/Madams,\n1. In connection with the potential purchase by eBay Inc. (the “Proposed Investor” or “eBay”) or an Affiliate (as defined below) thereof of shares\nof Gmarket Inc. (“Gmarket”), including from Interpark Corporation (“Interpark”) and Mr. Ki-Hyung Lee (“Mr. Lee” and, together with Interpark,\nthe “Shareholders”), and the potential combination of Gmarket and Internet Auction Co., Ltd. (the foregoing potential transactions being referred to\nas the “Proposed Transaction”), each of the parties hereto may, in its sole discretion, make available to the other parties and their respective\nAffiliates, Staff (as defined below) and Representatives (as defined below), certain Proprietary Information (as defined below) (the party disclosing\nsuch information being referred to as the “Discloser” and the party receiving such information being referred to as the “Recipient”). For the\npurposes of this agreement, “Affiliates” shall mean any person or entity controlling, controlled by or under common control with a relevant party. As\nused in this definition of term “Affiliate,” “controlling” (including the terms “controlled by” and “under common control with”) means the\npossession, directly or indirectly, of the power to direct or cause time direction of the management policies of a person by reason of ownership of\nvoting securities, by contract or otherwise.\n2. “Proprietary Information” of the Discloser shall mean any information, documents or data provided or made available by (or at the direction of)\nthe Discloser or any of its Affiliates (or any of their respective Staff or Representatives) to the Recipient or any of its Affiliates (or any of their\nrespective Staff or Representatives) in any form (whether directly or indirectly and whether written or oral) which the Discloser considers\nproprietary and confidential and/or, if applicable, is proprietary information of the Discloser or any of its Affiliates, and shall include all notes,\nanalyses, compilations, memos, studies, correspondence, documents, data or other records prepared by the Recipient or its Affiliates or their\nrespective Staff or Representatives, which contain, reflect, summarize or are based on, in whole or in part, such Proprietary Information, as well as\ninformation (the “Transaction Information”) concerning: (a) the content of any discussions of the Proposed Transaction between the parties,\nincluding any terms and conditions under review (including any draft Stock Purchase Agreement), (b) the fact that any such discussions are taking\nplace between the parties, or (c) the status of such discussions.\n3. The Recipient hereby undertakes to the Discloser that it will keep the Discloser ’s Proprietary Information confidential, that it will not use the\nDiscloser ’s Proprietary Information other than in connection with its evaluation of the Proposed Transaction, and that it will not directly or indirectly\ndisclose the Discloser’s Proprietary Information, other than as permitted pursuant to this agreement. Each of the parties to this agreement agrees that\nit will keep the Transaction Information confidential and that it will not, directly or indirectly disclose the Transaction Information, other than as\npermitted pursuant to this agreement. The Recipient agrees that it will use the same standard of care and safeguarding of the Discloser’s Proprietary\nInformation as it employs in protecting its own proprietary information which it desires not to disseminate or publish.\n4. The Recipient may disclose the Discloser’s Proprietary Information and the Transaction Information to such of its and its Affiliates’ directors,\nofficers and employees (collectively, the “Staff”) and to its or its Affiliates’ agents, consultants and professional advisers (collectively the\n“Representatives”) who need to know such information in connection with the Recipient’s evaluation of the Proposed Transaction and shall cause\nits Affiliates, Staff and Representatives to observe the terms of this agreement. Each of the parties shall be fully responsible for any breach of the\nterms of this agreement by it and any of its Affiliates, Representatives or Staff.\n5. For the purposes of this agreement, the Proprietary Information shall not include information or data (or any document) that:\n(a) is or becomes generally available to the public (other than as a result of disclosure in contravention of this agreement);\n(b) is or becomes available to the Recipient or any of its Affiliates, Staff or Representatives on a non-confidential basis from a source other\nthan the Discloser or its Affiliates (or any of their respective Staff or Representatives), provided that none of the Recipient or its\nAffiliates, Staff or Representatives knows or has reason to know that disclosure to the Recipient or any of its Affiliates, Staff or\nRepresentatives is in contravention of a confidentiality agreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, the Discloser; or\n(c) has been developed by the Recipient or any of its Affiliates, Staff or Representatives without the use of or reference to the Discloser’s\nProprietary Information; or\n(d) was in the possession of, or was rightfully known by, the Recipient or any of its Affiliates, Staff or Representatives prior to receipt\nthereof from the Discloser and was not the subject of a confidentiality agreement with the Discloser or any of its Affiliates.\n6. If any party or any of its Affiliates, Staff or Representatives is requested or required by any court of competent jurisdiction, any competent\njudicial, governmental or regulatory body or pursuant to any relevant law or regulation to disclose any Proprietary Information of another party or\nany Transaction Information, such party (to the extent permitted) shall promptly notify the other parties of such request or requirement so that the\nother parties have an opportunity to either seek a protective order, to otherwise seek to protect the Proprietary Information or Transaction\nInformation, as the case may be, or waive compliance with the provisions of this agreement. If, in the absence of a protective order or other remedy\nor the receipt of a waiver, such party or any of its Affiliates, Staff or Representatives is advised by outside counsel that such party or such Affiliate,\nStaff or Representative, as the case may be, is legally compelled to disclose the Proprietary Information or Transaction Information, as the case may\nbe, such party or such Affiliate, Staff or Representative, as the case may be, may, without liability hereunder, disclose only that portion of the\nProprietary Information or Transaction Information, as the case may be, which such counsel advises is legally required to be disclosed. Each party\nshall cooperate with the other parties to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded\nthe Proprietary Information or Transaction Information, as the case may be, by such tribunal.\n7. Nothing contained in this agreement, nor any exchange of the Discloser ’s Proprietary Information, shall grant or confer upon the Recipient, its\nAffiliates or its Staff or Representatives any right, license or authority in or to the Discloser’s Proprietary Information and all rights and intellectual\nproperty in the Discloser’s Proprietary Information shall belong to the Discloser. If requested by the Discloser, the Recipient will promptly return to\nthe Discloser (or procure the return of) (or, at the Recipient’s option, destroy, and certify, by a duly authorized officer, such destruction to the\nDiscloser), all tangible Proprietary Information of the Discloser which is in the possession of the Recipient, its Affiliates or its Staff or\nRepresentatives. Notwithstanding anything to the contrary contained in this agreement, (a) the Recipient may deposit one archival set of the\nProprietary Information with outside counsel solely for evidentiary purposes in connection with a party’s breach of this agreement; and (b) the\naccounting and financial advisors of the Recipient may keep such Proprietary Information as required by applicable law or professional\nrequirements. Nothing in this agreement shall preclude a party from discussing, reviewing, developing for itself, having developed, or developing for\nthird parties, materials which\nare competitive with the Proprietary Information, irrespective of their similarity to the Proprietary Information, so long as such party complies with\nthe terms of this agreement. Access to the Discloser’s Proprietary Information shall not preclude an individual Representative of a Recipient who has\nseen or otherwise had access to such Proprietary Information from working on future projects that related to similar subject matters.\n8. The Recipient agrees that the Discloser (including its Staff and Representatives) makes no representations or warranties express or implied as to\nthe accuracy or completeness of any of the Discloser’s Proprietary Information. Only those representations or warranties which are made in a final\ndefinitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as\nmay be specified therein, will have any legal effect. Except as may be set forth in such final definitive agreement, a Discloser (including its Staff and\nRepresentatives) shall have no liability to the Recipient, its Affiliates or its Staff and Representatives relating to or resulting from the disclosure or\nuse of the Discloser’s Proprietary Information or for any errors or omissions therefrom and none of the Discloser or its Affiliates, Staff or\nRepresentatives shall have any obligation to update or clarify any information so provided.\n9. Within seven days following the Execution Date, Gmarket shall by one or more written notices to eBay identify the individuals to be included in\nExhibit A (referred to herein), and eBay shall by one or more written notices to Gmarket identify the individuals to be included in Exhibit B (referred\nto herein), which individuals shall be included in Exhibit A and Exhibit B to this agreement without further action by either party. eBay hereby\nagrees that, without the prior written consent of Gmarket, for a period of one year from the Execution Date (as defined below), (a) it shall not,\ndirectly or through any other person acting at the direction of or in concert with such party, solicit or intentionally entice any of the individuals\nidentified on Exhibit A to leave their current employment with Gmarket so long as such individuals are employed by Gmarket, and (b) none of its\nStaff who has been made aware of this agreement or who has otherwise received Proprietary Information of Gmarket shall, directly or through any\nother person acting at the direction of or in concert with such person, solicit or intentionally entice any other current employees of Gmarket with\nwhom eBay has had contact, or with respect to whom eBay received Proprietary Information, in each case during the evaluation of the Proposed\nTransaction (the individuals identified on Exhibit A and the employees of Gmarket referred to in this clause “(b)” being hereinafter referred to as the\n“Specified Employees of Gmarket”) to leave their current employment so long as they are employed by Gmarket. Gmarket hereby agrees that,\nwithout the prior written consent of eBay, for a period of one year from the date of this agreement, (i) it shall not, directly or through any other\nperson acting at the direction of or in concert with such party, solicit or intentionally entice any of the individuals identified on Exhibit B to leave\ntheir current employment with eBay or a subsidiary of eBay so long as such individuals are employed by eBay or one of its subsidiaries, and\n(ii) none of its Staff who has been made aware of this agreement or who has otherwise received Proprietary Information of eBay shall, directly or\nthrough any other person acting at the direction of or in concert with such person, solicit or intentionally entice any other current employees of eBay\nor any of its subsidiaries with whom Gmarket has had contact, or with respect to whom Gmarket received Proprietary Information, in each case\nduring the evaluation of the Proposed Transaction (the individuals identified on Exhibit B and the employees of eBay or its subsidiaries referred to in\nthis clause “(b)” being hereinafter referred to as the “Specified Employees of eBay”) to leave their current employment so long as they are\nemployed by eBay or one of its subsidiaries. Notwithstanding anything to the contrary contained in this Section 9, none of the following actions by\neBay or Gmarket shall constitute a breach of this Section 9: (A) any solicitation for employment by means of a general solicitation or advertisement\nnot specifically targeted at the Specified Employees of the other party; (B) engaging any recruiting firm to identify or solicit persons for employment\non behalf of such party, or soliciting the employment of a Specified Employee of the other party who is identified by a recruiting firm, so long as\nsuch recruiting firm is not instructed to target such individuals; or (C) by entering into discussions with any Employee of the other party who shall\nhave initiated contact or sought employment with such party or any of its Affiliates without first having been solicited in violation of this Section 9\n(other than Specified Employees of the other party), provided that, if a party has inadvertently violated this provision by so entering into discussions\nwith a Specified Employee of the other party, such violation may be cured by terminating the discussions with such Specified Employee,\nwithdrawing an offer of employment made to such Specified Employee, or terminating the employment of such Specified Employee, as appropriate.\n10. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this agreement, of the restrictions\nimposed by the United States securities laws and other applicable laws on the purchase or sale of securities by any person who has received material,\nnon-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably\nforeseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n11. This agreement may be executed in counterparts and shall be binding, as between Gmarket and eBay, when executed by both of them (the\n“Execution Date”), and shall be binding on Interpark and Mr. Lee when executed by them. This agreement shall be effective as of October 30, 2008\n(the “Effective Date”), when executed by Gmarket and eBay, and shall terminate upon the earlier of (i) two years after completion of the Proposed\nTransaction or (ii) three years after the Effective Date; provided, however, that the provisions of Sections 9 and 14 of this agreement shall be\neffective only as of the Execution Date. The parties hereby agree that any Proprietary Information disclosed prior to the Effective Date between eBay\nand Gmarket shall also be subject to the terms of the Mutual Nondisclosure Agreement dated January 24, 2006 between eBay and Gmarket (the\n“Original Gmarket NDA”), and any Proprietary Information disclosed prior to the Effective Date between eBay and Interpark shall also be subject\nto the terms of the Mutual Nondisclosure Agreement dated December 13, 2006 between eBay and lnterpark (the “Original lnterpark NDA”).\n12. This agreement shall be governed by the laws of the State of Delaware. The Delaware courts (including, to the extent it has jurisdiction, the\nChancery Court located in Delaware) shall have exclusive jurisdiction for the resolution of any disputes in connection with this agreement. It is\nunderstood and agreed that money damages would not be a sufficient remedy for any breach of this agreement by any party and that each party shall\nbe entitled to equitable relief, including injunction and specific performance, as a remedy for such breach. In the event of litigation relating to this\nagreement, if a court of competent jurisdiction determines in a final order from which there is no appeal that this agreement has been breached by a\nparty or by its Staff or Representatives, the breaching party or the party whose Staff or Representatives have breached this agreement, as the case\nmay be, will reimburse the other party for its costs and expenses (including, without limitation, legal fees and expenses) incurred in connection with\nthe enforcement of this agreement and such litigation. Such remedies shall not be deemed to be the exclusive remedy for a breach of this agreement\nbut shall be in addition to all other remedies available at law or equity.\n13. This agreement is intended to amend and restate the confidentiality agreement entered into between the parties on October 30, 2008 (the “2008\nNDA”); provided, however, that if a party to this agreement does not execute this agreement, then the 2008 NDA shall remain in full force and effect\nwith respect to that party. This agreement, the Original Gmarket NDA, the Original Interpark NDA and, solely with respect to any party who does\nnot execute this Agreement, the 2008 NDA represent the whole agreement among Gmarket, the Shareholders and the Proposed Investor relating to\nthe matters referred to in this agreement and this agreement may not be amended except in writing signed by Gmarket, the Shareholders and the\nProposed Investor. This agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement.\n14. Subject to the proviso to this sentence, each of eBay and Gmarket agrees that, for a period of eighteen months after the Execution Date, unless\nspecifically invited in writing by the other party, neither it nor any of its officers, directors or controlled affiliates (as such term is defined under the\nSecurities Exchange Act of 1934, as amended (the “1934 Act”)) will in any manner, directly or indirectly:\na.\neffect, offer or propose (whether publicly or otherwise) to effect, or participate in, or in any way assist (with the knowledge that such\nparty is assisting with any of the actions described herein) any other Person to effect, offer or propose (whether publicly or otherwise) to\neffect or participate:\ni.\nany acquisition of any securities (or beneficial ownership thereof) or assets of the other party or any of its subsidiaries (other than\nthrough nondirected investments in mutual funds or other similar investments),\nii.\nany tender or exchange offer, merger or other business combination involving the other party or any of its subsidiaries,\niii.\nany recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other party or any\nof its subsidiaries, or\niv.\nany “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents\nto vote any voting securities of the other party\n(it being understood that this clause (a) shall not restrict negotiations with respect to the Proposed Transaction until eBay is so notified in\nwriting by Gmarket);\nb. form, join or in any way participate in a “group” (as defined under the 1934 Act) for purposes of accomplishing any of the transactions\nreferred to in (a) above;\nc.\nmake any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving the other party or its securities or assets;\nd.\notherwise act, alone or in concert with others, to seek to control the management, Board of Directors or policies of the other party;\ne.\ntake any action which is likely to require that the other party make a public announcement regarding any of the types of matters set forth\nin (a) above; or\nf.\nenter into any discussions or arrangements with any third party (other than its Representatives) with respect to any of the foregoing.\nprovided, however, that, notwithstanding anything to the contrary contained in this Section 14, nothing in this Section 14 shall limit or otherwise\nrestrict either eBay or Gmarket from making or submitting any offer or proposal or entering into any discussions or negotiations (whether to or with\nthe other party or any shareholder of the other party), in each case relating to the acquisition of any of the securities or assets of the other party or any\nsubsidiary of the other party or any business combination or other transaction involving the other party or any subsidiary of the other party\n(including, without limitation, the types of transactions referred to in (a) above), so long as such offer or proposal (1) is not made publicly, and (2) is\nnot likely to require that the other party make a public announcement regarding such offer or proposal. Each of eBay and Gmarket also agrees during\nsuch period not to request the other party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of\nthis Section 14 (including this sentence).\n15. If any Proprietary Information includes materials or information subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, each party understands and agrees that the\nparties have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the parties that the\nsharing of such material is not intended to, and shall not waive or diminish in any way the confidentiality of such material or its continued protection\nunder the attorney-client privilege, work product doctrine, or other applicable privilege. All Proprietary Information provided by a party that is\nentitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection\nunder these privileges, this agreement, and under the joint defense doctrine.\n16. Each party acknowledges and agrees that no failure or delay by the other party in exercising any right, power or privilege hereunder will operate\nas a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power, or\nprivilege hereunder. The agreements set forth herein may be waived or modified only by an agreement in writing signed on behalf of the parties\nhereto.\nSincerely,\nGmarket Inc.\nBy: /s/ John Milburn\nName: John Milburn\nTitle: Chairman, Special Committee\nDate: January 18, 2009\nInterpark Corporation\nBy: /s/ Ki-Hyung Lee\nName: Ki-Hyung Lee\nTitle: Chairman and CEO\nDate: January 19, 2009\nKi-Hyung Lee\n/s/ Ki-Hyung Lee\nDate: January 19, 2009\nAccepted and agreed as of the effective date hereof by and\non behalf of eBay Inc.:\nBy: /s/ Lorraine McDonough\nName: Lorraine McDonough\nTitle: Vice President, Corporate Development\nDate: January 17, 2009	EX-99.(E)(10) 3 dex99e10.htm CONFIDENTIALITY AGREEMENT - CHAIRMAN LEE\nExhibit (e)(10)\neBay, Inc.\n2145 Hamilton Avenue\nSan Jose, California 95125\nwww.ebay.com\nJanuary 17, 2009\neBay Inc.\n2145 Hamilton Avenue\nSan Jose, CA 95125\nDear Sirs/Madams,\n1. In connection with the potential purchase by eBay Inc. (the “Proposed Investor” or “eBay”) or an Affiliate (as defined below) thereof of shares\nof Gmarket Inc. (“Gmarket”), including from Interpark Corporation (“Interpark”) and Mr. Ki-Hyung Lee (“Mr. Lee” and, together with Interpark,\nthe “Shareholders”), and the potential combination of Gmarket and Internet Auction Co., Ltd. (the foregoing potential transactions being referred to\nas the “Proposed Transaction”), each of the parties hereto may, in its sole discretion, make available to the other parties and their respective\nAffiliates, Staff (as defined below) and Representatives (as defined below), certain Proprietary Information (as defined below) (the party disclosing\nsuch information being referred to as the “Discloser” and the party receiving such information being referred to as the “Recipient”). For the\npurposes of this agreement, “Affiliates” shall mean any person or entity controlling, controlled by or under common control with a relevant party. As\nused in this definition of term “Affiliate,” “controlling” (including the terms “controlled by” and “under common control with”) means the\npossession, directly or indirectly, of the power to direct or cause time direction of the management policies of a person by reason of ownership of\nvoting securities, by contract or otherwise.\n2. “Proprietary Information” of the Discloser shall mean any information, documents or data provided or made available by (or at the direction of)\nthe Discloser or any of its Affiliates (or any of their respective Staff or Representatives) to the Recipient or any of its Affiliates (or any of their\nrespective Staff or Representatives) in any form (whether directly or indirectly and whether written or oral) which the Discloser considers\nproprietary and confidential and/or, if applicable, is proprietary information of the Discloser or any of its Affiliates, and shall include all notes,\nanalyses, compilations, memos, studies, correspondence, documents, data or other records prepared by the Recipient or its Affiliates or their\nrespective Staff or Representatives, which contain, reflect, summarize or are based on, in whole or in part, such Proprietary Information, as well as\ninformation (the “Transaction Information”) concerning: (a) the content of any discussions of the Proposed Transaction between the parties,\nincluding any terms and conditions under review (including any draft Stock Purchase Agreement), (b) the fact that any such discussions are taking\nplace between the parties, or (c) the status of such discussions.\n3. The Recipient hereby undertakes to the Discloser that it will keep the Discloser’s Proprietary Information confidential, that it will not use the\nDiscloser’s Proprietary Information other than in connection with its evaluation of the Proposed Transaction, and that it will not directly or indirectly\ndisclose the Discloser’s Proprietary Information, other than as permitted pursuant to this agreement. Each of the parties to this agreement agrees that\nit will keep the Transaction Information confidential and that it will not, directly or indirectly disclose the Transaction Information, other than as\npermitted pursuant to this agreement. The Recipient agrees that it will use the same standard of care and safeguarding of the Discloser’s Proprietary\nInformation as it employs in protecting its own proprietary information which it desires not to disseminate or publish.\n4. The Recipient may disclose the Discloser’s Proprietary Information and the Transaction Information to such of its and its Affiliates’ directors,\nofficers and employees (collectively, the “Staff”) and to its or its Affiliates” agents, consultants and professional advisers (collectively the\n“Representatives”) who need to know such information in connection with the Recipient’s evaluation of the Proposed Transaction and shall cause\nits Affiliates, Staff and Representatives to observe the terms of this agreement. Each of the parties shall be fully responsible for any breach of the\nterms of this agreement by it and any of its Affiliates, Representatives or Staff.\n5. For the purposes of this agreement, the Proprietary Information shall not include information or data (or any document) that:\n(a) is or becomes generally available to the public (other than as a result of disclosure in contravention of this agreement);\n(b) is or becomes available to the Recipient or any of its Affiliates, Staff or Representatives on a non-confidential basis from a source other\nthan the Discloser or its Affiliates (or any of their respective Staff or Representatives), provided that none of the Recipient or its\nAffiliates, Staff or Representatives knows or has reason to know that disclosure to the Recipient or any of its Affiliates, Staff or\nRepresentatives is in contravention of a confidentiality agreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, the Discloser; or\n(c) has been developed by the Recipient or any of its Affiliates, Staff or Representatives without the use of or reference to the Discloser’s\nProprietary Information; or\n(d) was in the possession of, or was rightfully known by, the Recipient or any of its Affiliates, Staff or Representatives prior to receipt\nthereof from the Discloser and was not the subject of a confidentiality agreement with the Discloser or any of its Affiliates.\n6. If any party or any of its Affiliates, Staff or Representatives is requested or required by any court of competent jurisdiction, any competent\njudicial, governmental or regulatory body or pursuant to any relevant law or regulation to disclose any Proprietary Information of another party or\nany Transaction Information, such party (to the extent permitted) shall promptly notify the other parties of such request or requirement so that the\nother parties have an opportunity to either seek a protective order, to otherwise seek to protect the Proprietary Information or Transaction\nInformation, as the case may be, or waive compliance with the provisions of this agreement. If, in the absence of a protective order or other remedy\nor the receipt of a waiver, such party or any of its Affiliates, Staff or Representatives is advised by outside counsel that such party or such Affiliate,\nStaff or Representative, as the case may be, is legally compelled to disclose the Proprietary Information or Transaction Information, as the case may\nbe, such party or such Affiliate, Staff or Representative, as the case may be, may, without liability hereunder, disclose only that portion of the\nProprietary Information or Transaction Information, as the case may be, which such counsel advises is legally required to be disclosed. Each party\nshall cooperate with the other parties to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded\nthe Proprietary Information or Transaction Information, as the case may be, by such tribunal.\n7. Nothing contained in this agreement, nor any exchange of the Discloser’s Proprietary Information, shall grant or confer upon the Recipient, its\nAffiliates or its Staff or Representatives any right, license or authority in or to the Discloser’s Proprietary Information and all rights and intellectual\nproperty in the Discloser’s Proprietary Information shall belong to the Discloser. If requested by the Discloser, the Recipient will promptly return to\nthe Discloser (or procure the return of) (or, at the Recipient’s option, destroy, and certify, by a duly authorized officer, such destruction to the\nDiscloser), all tangible Proprietary Information of the Discloser which is in the possession of the Recipient, its Affiliates or its Staff or\nRepresentatives. Notwithstanding anything to the contrary contained in this agreement, (a) the Recipient may deposit one archival set of the\nProprietary Information with outside counsel solely for evidentiary purposes in connection with a party’s breach of this agreement; and (b) the\naccounting and financial advisors of the Recipient may keep such Proprietary Information as required by applicable law or professional\nrequirements. Nothing in this agreement shall preclude a party from discussing, reviewing, developing for itself, having developed, or developing for\nthird parties, materials which\nare competitive with the Proprietary Information, irrespective of their similarity to the Proprietary Information, so long as such party complies with\nthe terms of this agreement. Access to the Discloser’s Proprietary Information shall not preclude an individual Representative of a Recipient who has\nseen or otherwise had access to such Proprietary Information from working on future projects that related to similar subject matters.\n8. The Recipient agrees that the Discloser (including its Staff and Representatives) makes no representations or warranties express or implied as to\nthe accuracy or completeness of any of the Discloser’s Proprietary Information. Only those representations or warranties which are made in a final\ndefinitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as\nmay be specified therein, will have any legal effect. Except as may be set forth in such final definitive agreement, a Discloser (including its Staff and\nRepresentatives) shall have no liability to the Recipient, its Affiliates or its Staff and Representatives relating to or resulting from the disclosure or\nuse of the Discloser’s Proprietary Information or for any errors or omissions therefrom and none of the Discloser or its Affiliates, Staff or\nRepresentatives shall have any obligation to update or clarify any information so provided.\n9. Within seven days following the Execution Date, Gmarket shall by one or more written notices to eBay identify the individuals to be included in\nExhibit A (referred to herein), and eBay shall by one or more written notices to Gmarket identify the individuals to be included in Exhibit B (referred\nto herein), which individuals shall be included in Exhibit A and Exhibit B to this agreement without further action by either party. eBay hereby\nagrees that, without the prior written consent of Gmarket, for a period of one year from the Execution Date (as defined below), (a) it shall not,\ndirectly or through any other person acting at the direction of or in concert with such party, solicit or intentionally entice any of the individuals\nidentified on Exhibit A to leave their current employment with Gmarket so long as such individuals are employed by Gmarket, and (b) none of its\nStaff who has been made aware of this agreement or who has otherwise received Proprietary Information of Gmarket shall, directly or through any\nother person acting at the direction of or in concert with such person, solicit or intentionally entice any other current employees of Gmarket with\nwhom eBay has had contact, or with respect to whom eBay received Proprietary Information, in each case during the evaluation of the Proposed\nTransaction (the individuals identified on Exhibit A and the employees of Gmarket referred to in this clause “(b)” being hereinafter referred to as the\n“Specified Employees of Gmarket”) to leave their current employment so long as they are employed by Gmarket. Gmarket hereby agrees that,\nwithout the prior written consent of eBay, for a period of one year from the date of this agreement, (i) it shall not, directly or through any other\nperson acting at the direction of or in concert with such party, solicit or intentionally entice any of the individuals identified on Exhibit B to leave\ntheir current employment with eBay or a subsidiary of eBay so long as such individuals are employed by eBay or one of its subsidiaries, and\n(ii) none of its Staff who has been made aware of this agreement or who has otherwise received Proprietary Information of eBay shall, directly or\nthrough any other person acting at the direction of or in concert with such person, solicit or intentionally entice any other current employees of eBay\nor any of its subsidiaries with whom Gmarket has had contact, or with respect to whom Gmarket received Proprietary Information, in each case\nduring the evaluation of the Proposed Transaction (the individuals identified on Exhibit B and the employees of eBay or its subsidiaries referred to in\nthis clause “(b)” being hereinafter referred to as the “Specified Employees of eBay”) to leave their current employment so long as they are\nemployed by eBay or one of its subsidiaries. Notwithstanding anything to the contrary contained in this Section 9, none of the following actions by\neBay or Gmarket shall constitute a breach of this Section 9: (A) any solicitation for employment by means of a general solicitation or advertisement\nnot specifically targeted at the Specified Employees of the other party; (B) engaging any recruiting firm to identify or solicit persons for employment\non behalf of such party, or soliciting the employment of a Specified Employee of the other party who is identified by a recruiting firm, so long as\nsuch recruiting firm is not instructed to target such individuals; or (C) by entering into discussions with any Employee of the other party who shall\nhave initiated contact or sought employment with such party or any of its Affiliates without first having been solicited in violation of this Section 9\n(other than Specified Employees of the other party), provided that, if a party has inadvertently violated this provision by so entering into discussions\nwith a Specified Employee of the other party, such violation may be cured by terminating the discussions with such Specified Employee,\nwithdrawing an offer of employment made to such Specified Employee, or terminating the employment of such Specified Employee, as appropriate.\n10. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this agreement, of the restrictions\nimposed by the United States securities laws and other applicable laws on the purchase or sale of securities by any person who has received material,\nnon-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably\nforeseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n11. This agreement may be executed in counterparts and shall be binding, as between Gmarket and eBay, when executed by both of them (the\n“Execution Date”), and shall be binding on Interpark and Mr. Lee when executed by them. This agreement shall be effective as of October 30, 2008\n(the “Effective Date”), when executed by Gmarket and eBay, and shall terminate upon the earlier of (i) two years after completion of the Proposed\nTransaction or (ii) three years after the Effective Date; provided, however, that the provisions of Sections 9 and 14 of this agreement shall be\neffective only as of the Execution Date. The parties hereby agree that any Proprietary Information disclosed prior to the Effective Date between eBay\nand Gmarket shall also be subject to the terms of the Mutual Nondisclosure Agreement dated January 24, 2006 between eBay and Gmarket (the\n“Original Gmarket NDA”), and any Proprietary Information disclosed prior to the Effective Date between eBay and Interpark shall also be subject\nto the terms of the Mutual Nondisclosure Agreement dated December 13, 2006 between eBay and Interpark (the “Original Interpark NDA”).\n12. This agreement shall be governed by the laws of the State of Delaware. The Delaware courts (including, to the extent it has jurisdiction, the\nChancery Court located in Delaware) shall have exclusive jurisdiction for the resolution of any disputes in connection with this agreement. It is\nunderstood and agreed that money damages would not be a sufficient remedy for any breach of this agreement by any party and that each party shall\nbe entitled to equitable relief, including injunction and specific performance, as a remedy for such breach. In the event of litigation relating to this\nagreement, if a court of competent jurisdiction determines in a final order from which there is no appeal that this agreement has been breached by a\nparty or by its Staff or Representatives, the breaching party or the party whose Staff or Representatives have breached this agreement, as the case\nmay be, will reimburse the other party for its costs and expenses (including, without limitation, legal fees and expenses) incurred in connection with\nthe enforcement of this agreement and such litigation. Such remedies shall not be deemed to be the exclusive remedy for a breach of this agreement\nbut shall be in addition to all other remedies available at law or equity.\n13. This agreement is intended to amend and restate the confidentiality agreement entered into between the parties on October 30, 2008 (the “2008\nNDA?”); provided, however, that if a party to this agreement does not execute this agreement, then the 2008 NDA shall remain in full force and effect\nwith respect to that party. This agreement, the Original Gmarket NDA, the Original Interpark NDA and, solely with respect to any party who does\nnot execute this Agreement, the 2008 NDA represent the whole agreement among Gmarket, the Shareholders and the Proposed Investor relating to\nthe matters referred to in this agreement and this agreement may not be amended except in writing signed by Gmarket, the Shareholders and the\nProposed Investor. This agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement.\n14. Subject to the proviso to this sentence, each of eBay and Gmarket agrees that, for a period of eighteen months after the Execution Date, unless\nspecifically invited in writing by the other party, neither it nor any of its officers, directors or controlled affiliates (as such term is defined under the\nSecurities Exchange Act of 1934, as amended (the “1934 Act”)) will in any manner, directly or indirectly:\na.  effect, offer or propose (whether publicly or otherwise) to effect, or participate in, or in any way assist (with the knowledge that such\nparty is assisting with any of the actions described herein) any other Person to effect, offer or propose (whether publicly or otherwise) to\neffect or participate:\nL. any acquisition of any securities (or beneficial ownership thereof) or assets of the other party or any of its subsidiaries (other than\nthrough nondirected investments in mutual funds or other similar investments),\nii. any tender or exchange offer, merger or other business combination involving the other party or any of its subsidiaries,\n1. any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other party or any\nof its subsidiaries, or\niv. any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents\nto vote any voting securities of the other party\n(it being understood that this clause (a) shall not restrict negotiations with respect to the Proposed Transaction until eBay is so notified in\nwriting by Gmarket);\nb.  form, join or in any way participate in a “group” (as defined under the 1934 Act) for purposes of accomplishing any of the transactions\nreferred to in (a) above;\nc.  make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving the other party or its securities or assets;\nd.  otherwise act, alone or in concert with others, to seek to control the management, Board of Directors or policies of the other party;\ne.  take any action which is likely to require that the other party make a public announcement regarding any of the types of matters set forth\nin (a) above; or\nf. enter into any discussions or arrangements with any third party (other than its Representatives) with respect to any of the foregoing.\nprovided, however, that, notwithstanding anything to the contrary contained in this Section 14, nothing in this Section 14 shall limit or otherwise\nrestrict either eBay or Gmarket from making or submitting any offer or proposal or entering into any discussions or negotiations (whether to or with\nthe other party or any shareholder of the other party), in each case relating to the acquisition of any of the securities or assets of the other party or any\nsubsidiary of the other party or any business combination or other transaction involving the other party or any subsidiary of the other party\n(including, without limitation, the types of transactions referred to in (a) above), so long as such offer or proposal (1) is not made publicly, and (2) is\nnot likely to require that the other party make a public announcement regarding such offer or proposal. Each of eBay and Gmarket also agrees during\nsuch period not to request the other party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of\nthis Section 14 (including this sentence).\n15. If any Proprietary Information includes materials or information subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, each party understands and agrees that the\nparties have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the parties that the\nsharing of such material is not intended to, and shall not waive or diminish in any way the confidentiality of such material or its continued protection\nunder the attorney-client privilege, work product doctrine, or other applicable privilege. All Proprietary Information provided by a party that is\nentitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection\nunder these privileges, this agreement, and under the joint defense doctrine.\n16. Each party acknowledges and agrees that no failure or delay by the other party in exercising any right, power or privilege hereunder will operate\nas a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power, or\nprivilege hereunder. The agreements set forth herein may be waived or modified only by an agreement in writing signed on behalf of the parties\nhereto.\nSincerely, Gmarket Inc. By:\nName:\nTitle:\nDate:\n/s/ John Milburn\nJohn Milburn\nChairman, Special Committee\nJanuary 18, 2009\nInterpark Corporation By:\nName:\nTitle:\nDate:\n/s/ Ki-Hyung Lee\nKi-Hyung Lee\nChairman and CEO\nJanuary 19, 2009\nKi-Hyung Lee /s/ Ki-Hyung Lee Date:\nJanuary 19, 2009\nAccepted and agreed as of the effective date hereof by and on behalf of eBay Inc.:\nBy: /s/ Lorraine McDonough\nName: Lorraine McDonough\nTitle:\nDate:\nVice President, Corporate Development\nJanuary 17, 2009	EX-99.(E)(10) 3 dex99e10.htm CONFIDENTIALITY AGREEMENT CHAIRMAN LEE\nExhibit (e)(10)\neBay, Inc.\n2145 Hamilton Avenue\nSan Jose, California 95125\nwww.ebay.com\nJanuary 17, 2009\neBay Inc.\n2145 Hamilton Avenue\nSan Jose, CA 95125\nDear Sirs/Madams,\n1. In connection with the potential purchase by eBay Inc. (the "Proposed Investor" or "eBay") or an Affiliate (as defined below) thereof of shares\nof Gmarket Inc. ("Gmarket"), including from Interpark Corporation ("Interpark") and Mr. Ki-Hyung Lee ("Mr. Lee" and, together with Interpark,\nthe "Shareholders"), and the potential combination of Gmarket and Internet Auction Co., Ltd. (the foregoing potential transactions being referred to\nas\nthe "Proposed Transaction"), each of the parties hereto may, in its sole discretion, make available to the other parties and their respective\nAffiliates, Staff (as defined below) and Representatives (as defined below), certain Proprietary Information (as defined below) (the party disclosing\nsuch information being referred to as the "Discloser" and the party receiving such information being referred to as the "Recipient"). For the\npurposes of this agreement, "Affiliates" shall mean any person or entity controlling, controlled by or under common control with a relevant party. As\nused in this definition of term "Affiliate," "controlling" (including the terms "controlled by" and "under common control with") means the\npossession, directly or indirectly, of the power to direct or cause time direction of the management policies of a person by reason of ownership of\nvoting securities, by contract or otherwise.\n2. "Proprietary Information" of the Discloser shall mean any information, documents or data provided or made available by (or at the direction of)\nthe Discloser or any of its Affiliates (or any of their respective Staff or Representatives) to the Recipient or any of its Affiliates (or any of their\nrespective Staff or Representatives) in any form (whether directly or indirectly and whether written or oral) which the Discloser considers\nproprietary and confidential and/or, if applicable, is proprietary information of the Discloser or any of its Affiliates, and shall include all notes,\nanalyses, compilations, memos, studies, correspondence, documents, data or other records prepared by the Recipient or its Affiliates or their\nrespective Staff or Representatives, which contain, reflect, summarize or are based on, in whole or in part, such Proprietary Information, as well as\ninformation (the "Transaction Information") concerning: (a) the content of any discussions of the Proposed Transaction between the parties,\nincluding any terms and conditions under review (including any draft Stock Purchase Agreement), (b) the fact that any such discussions are taking\nplace between the parties, or (c) the status of such discussions.\n3. The Recipient hereby undertakes to the Discloser that it will keep the Discloser's Proprietary Information confidential, that it will not use the\nDiscloser's Proprietary Information other than in connection with its evaluation of the Proposed Transaction, and that it will not directly or indirectly\ndisclose the Discloser's Proprietary Information, other than as permitted pursuant to this agreement. Each of the parties to this agreement agrees that\nit will keep the Transaction Information confidential and that it will not, directly or indirectly disclose the Transaction Information, other than\nas\npermitted pursuant to this agreement. The Recipient agrees that it will use the same standard of care and safeguarding of the Discloser's Proprietary\nInformation as it employs in protecting its own proprietary information which it desires not to disseminate or publish.\n4.\nThe Recipient may disclose the Discloser's Proprietary Information and the Transaction Information to such of its and its Affiliates' directors,\nofficers and employees (collectively, the "Staff") and to its or its Affiliates' agents, consultants and professional advisers (collectively the\n"Representatives") who need to know such information in connection with the Recipient's evaluation of the Proposed Transaction and shall cause\nits Affiliates, Staff and Representatives to observe the terms of this agreement. Each of the parties shall be fully responsible for any breach of the\nterms of this agreement by it and any of its Affiliates, Representatives or Staff.\n5. For the purposes of this agreement, the Proprietary Information shall not include information or data (or any document) that:\n(a)\nis or becomes generally available to the public (other than as a result of disclosure in contravention of this agreement);\n(b)\nis or becomes available to the Recipient or any of its Affiliates, Staff or Representatives on a non-confidential basis from a source other\nthan the Discloser or its Affiliates (or any of their respective Staff or Representatives), provided that none of the Recipient or its\nAffiliates,\nStaff\nor\nRepresentatives\nknows\nor\nhas\nreason\nto\nknow\nthat\ndisclosure\nto\nthe\nRecipient\nor\nany\nof\nits\nAffiliates,\nStaff\nor\nRepresentatives is in contravention of a confidentiality agreement with, or other contractual, legal or fiduciary obligation\nof\nconfidentiality to, the Discloser; or\n(c)\nhas been developed by the Recipient or any of its Affiliates, Staff or Representatives without the use of or reference to the Discloser's\nProprietary Information; or\n(d) was in the possession of, or was rightfully known by, the Recipient or any of its Affiliates, Staff or Representatives prior to receipt\nthereof from the Discloser and was not the subject of a confidentiality agreement with the Discloser or any of its Affiliates.\n6. If any party or any of its Affiliates, Staff or Representatives is requested or required by any court of competent jurisdiction, any competent\njudicial, governmental or regulatory body or pursuant to any relevant law or regulation to disclose any Proprietary Information of another party or\nany Transaction Information, such party (to the extent permitted) shall promptly notify the other parties of such request or requirement so that the\nother parties have an opportunity to either seek a protective order, to otherwise seek to protect the Proprietary Information or Transaction\nInformation, as the case may be, or waive compliance with the provisions of this agreement. If, in the absence of a protective order or other remedy\nor the receipt of a waiver, such party or any of its Affiliates, Staff or Representatives is advised by outside counsel that such party or such Affiliate,\nStaff\nor Representative, as the case may be, is legally compelled to disclose the Proprietary Information or Transaction Information, as the case may\nbe, such party or such Affiliate, Staff or Representative, as the case may be, may, without liability hereunder, disclose only that portion of the\nProprietary Information or Transaction Information, as the case may be, which such counsel advises is legally required to be disclosed. Each party\nshall cooperate with the other parties to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded\nthe Proprietary Information or Transaction Information, as the case may be, by such tribunal.\n7. Nothing contained in this agreement, nor any exchange of the Discloser's Proprietary Information, shall grant or confer upon the Recipient, its\nAffiliates or its Staff or Representatives any right, license or authority in or to the Discloser's Proprietary Information and all rights and intellectual\nproperty in the Discloser's Proprietary Information shall belong to the Discloser. If requested by the Discloser, the Recipient will promptly return\nto\nthe Discloser (or procure the return of) (or, at the Recipient's option, destroy, and certify, by a duly authorized officer, such destruction to the\nDiscloser), all tangible Proprietary Information of the Discloser which is in the possession of the Recipient, its Affiliates or its Staff or\nRepresentatives. Notwithstanding anything to the contrary contained in this agreement, (a) the Recipient may deposit one archival set of the\nProprietary Information with outside counsel solely for evidentiary purposes in connection with a party's breach of this agreement; and (b) the\naccounting and financial advisors of the Recipient may keep such Proprietary Information as required by applicable law or professional\nrequirements. Nothing in this agreement shall preclude a party from discussing, reviewing, developing for itself, having developed, or developing for\nthird parties, materials which\nare competitive with the Proprietary Information, irrespective of their similarity to the Proprietary Information, so long as such party complies with\nthe terms of this agreement. Access to the Discloser's Proprietary Information shall not preclude an individual Representative of a Recipient who has\nseen or otherwise had access to such Proprietary Information from working on future projects that related to similar subject matters.\n8. The Recipient agrees that the Discloser (including its Staff and Representatives) makes no representations or warranties express or implied as\nto\nthe\naccuracy\nor\ncompleteness\nof\nany\nof\nthe\nDiscloser's\nProprietary\nInformation.\nOnly\nthose\nrepresentations\nor\nwarranties\nwhich\nare\nmade\nin\na\nfinal\ndefinitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as\nmay be specified therein, will have any legal effect. Except as may be set forth in such final definitive agreement, a Discloser (including its Staff and\nRepresentatives) shall have no liability to the Recipient, its Affiliates or its Staff and Representatives relating to or resulting from the disclosure or\nuse of the Discloser's Proprietary Information or for any errors or omissions therefrom and none of the Discloser or its Affiliates, Staff or\nRepresentatives shall have any obligation to update or clarify any information so provided.\n9. Within seven days following the Execution Date, Gmarket shall by one or more written notices to eBay identify the individuals to be included in\nExhibit A (referred to herein), and eBay shall by one or more written notices to Gmarket identify the individuals to be included in Exhibit B (referred\nto\nherein), which individuals shall be included in Exhibit A and Exhibit B to this agreement without further action by either party. eBay hereby\nagrees that, without the prior written consent of Gmarket, for a period of one year from the Execution Date (as defined below), (a) it shall not,\ndirectly or through any other person acting at the direction of or in concert with such party, solicit or intentionally entice any of the individuals\nidentified on Exhibit A to leave their current employment with Gmarket so long as such individuals are employed by Gmarket, and (b) none of its\nStaff who has been made aware of this agreement or who has otherwise received Proprietary Information of Gmarket shall, directly or through any\nother person acting at the direction of or in concert with such person, solicit or intentionally entice any other current employees of Gmarket with\nwhom eBay has had contact, or with respect to whom eBay received Proprietary Information, in each case during the evaluation of the Proposed\nTransaction (the individuals identified on Exhibit A and the employees of Gmarket referred to in this clause "(b)" being hereinafter referred to as the\n"Specified Employees of Gmarket") to leave their current employment so long as they are employed by Gmarket. Gmarket hereby agrees that,\nwithout the prior written consent of eBay, for a period of one year from the date of this agreement, (i) it shall not, directly or through any other\nperson acting at the direction of or in concert with such party, solicit or intentionally entice any of the individuals identified on Exhibit B to leave\ntheir current employment with eBay or a subsidiary of eBay so long as such individuals are employed by eBay or one of its subsidiaries, and\n(ii) none of its Staff who has been made aware of this agreement or who has otherwise received Proprietary Information of eBay shall, directly or\nthrough any other person acting at the direction of or in concert with such person, solicit or intentionally entice any other current employees of eBay\nor any of its subsidiaries with whom Gmarket has had contact, or with respect to whom Gmarket received Proprietary Information, in each case\nduring the evaluation of the Proposed Transaction (the individuals identified on Exhibit B and the employees of eBay or its subsidiaries referred to\nin\nthis clause "(b)" being hereinafter referred to as the "Specified Employees of eBay") to leave their current employment so long as they are\nemployed by eBay or one of its subsidiaries Notwithstanding anything to the contrary contained in this Section 9, none of the following actions by\neBay or Gmarket shall constitute a breach of this Section 9: (A) any solicitation for employment by means of a general solicitation or advertisement\nnot specifically targeted at the Specified Employees of the other party; (B) engaging any recruiting firm to identify or solicit persons for employment\non behalf of such party, or soliciting the employment of a Specified Employee of the other party who is identified by a recruiting firm, so long as\nsuch recruiting firm is not instructed to target such individuals; or (C) by entering into discussions with any Employee of the other party who shall\nhave initiated contact or sought employment with such party or any of its Affiliates without first having been solicited in violation of this Section 9\n(other than Specified Employees of the other party), provided that, if a party has inadvertently violated this provision by so entering into discussions\nwith a Specified Employee of the other party, such violation may be cured by terminating the discussions with such Specified Employee,\nwithdrawing an offer of employment made to such Specified Employee, or terminating the employment of such Specified Employee, as appropriate.\n10. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this agreement, of the restrictions\nimposed by the United States securities laws and other applicable laws on the purchase or sale of securities by any person who has received material,\nnon-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably\nforeseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n11. This agreement may be executed in counterparts and shall be binding, as between Gmarket and eBay, when executed by both of them (the\n"Execution Date"), and shall be binding on Interpark and Mr. Lee when executed by them. This agreement shall be effective as of October 30, 2008\n(the "Effective Date"), when executed by Gmarket and eBay, and shall terminate upon the earlier of (i) two years after completion of the Proposed\nTransaction or (ii) three years after the Effective Date; provided, however, that the provisions of Sections 9 and 14 of this agreement shall be\neffective only as of the Execution Date. The parties hereby agree that any Proprietary Information disclosed prior to the Effective Date between eBay\nand Gmarket shall also be subject to the terms of the Mutual Nondisclosure Agreement dated January 24, 2006 between eBay and Gmarket (the\n"Original Gmarket NDA"), and any Proprietary Information disclosed prior to the Effective Date between eBay and Interpark shall also be subject\nto the terms of the Mutual Nondisclosure Agreement dated December 13, 2006 between eBay and Interpark (the "Original Interpark NDA").\n12. This agreement shall be governed by the laws of the State of Delaware. The Delaware courts (including, to the extent it has jurisdiction, the\nChancery Court located in Delaware) shall have exclusive jurisdiction for the resolution of any disputes in connection with this agreement. It is\nunderstood and agreed that money damages would not be a sufficient remedy for any breach of this agreement by any party and that each party shall\nbe entitled to equitable relief, including injunction and specific performance, as a remedy for such breach. In the event of litigation relating to this\nagreement, if a court of competent jurisdiction determines in a final order from which there is no appeal that this agreement has been breached by a\nparty or by its Staff or Representatives, the breaching party or the party whose Staff or Representatives have breached this agreement, as the case\nmay be, will reimburse the other party for its costs and expenses (including, without limitation, legal fees and expenses) incurred in connection with\nthe enforcement of this agreement and such litigation. Such remedies shall not be deemed to be the exclusive remedy for a breach of this agreement\nbut shall be in addition to all other remedies available at law or equity.\n13 This agreement is intended to amend and restate the confidentiality agreement entered into between the parties on October 30, 2008 (the "2008\nNDA"); provided, however, that if a party to this agreement does not execute this agreement, then the 2008 NDA shall remain in full force and effect\nwith respect to that party. This agreement, the Original Gmarket NDA, the Original Interpark NDA and, solely with respect to any party who does\nnot execute this Agreement, the 2008 NDA represent the whole agreement among Gmarket, the Shareholders and the Proposed Investor relating to\nthe matters referred to in this agreement and this agreement may not be amended except in writing signed by Gmarket, the Shareholders and the\nProposed Investor. This agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement.\n14. Subject to the proviso to this sentence, each of eBay and Gmarket agrees that, for a period of eighteen months after the Execution Date, unless\nspecifically invited in writing by the other party, neither it nor any of its officers, directors or controlled affiliates (as such term is defined under the\nSecurities Exchange Act of 1934, as amended (the "1934 A will in any manner, directly or indirectly:\na.\neffect, offer or propose (whether publicly or otherwise) to effect, or participate in, or in any way assist (with the knowledge that such\nparty is assisting with any of the actions described herein) any other Person to effect, offer or propose (whether publicly or otherwise) to\neffect or participate:\ni.\nany acquisition of any securities (or beneficial ownership thereof) or assets of the other party or any of its subsidiaries (other than\nthrough nondirected investments in mutual funds or other similar investments),\nii.\nany tender or exchange offer, merger or other business combination involving the other party or any of its subsidiaries,\niii.\nany recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other party or any\nof its subsidiaries, or\niv.\nany "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents\nto vote any voting securities of the other party\n(it being understood that this clause (a) shall not restrict negotiations with respect to the Proposed Transaction until eBay is so notified in\nwriting by Gmarket);\nb.\nform, join or in any way participate in a "group" (as defined under the 1934 Act) for purposes of accomplishing any of the transactions\nreferred to in (a) above;\nC.\nmake any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving the other party or its securities or assets;\nd.\notherwise act, alone or in concert with others, to seek to control the management, Board of Directors or policies of the other party;\ne.\ntake any action which is likely to require that the other party make a public announcement regarding any of the types of matters set forth\nin (a) above; or\nf.\nenter into any discussions or arrangements with any third party (other than its Representatives) with respect to any of the foregoing.\nprovided, however, that, notwithstanding anything to the contrary contained in this Section 14, nothing in this Section 14 shall limit or otherwise\nrestrict either eBay or Gmarket from making or submitting any offer or proposal or entering into any discussions or negotiations (whether to or with\nthe other party or any shareholder of the other party), in each case relating to the acquisition of any of the securities or assets of the other party or any\nsubsidiary of the other party or any business combination or other transaction involving the other party or any subsidiary of the other party\n(including, without limitation, the types of transactions referred to in (a) above), so long as such offer or proposal (1) is not made publicly, and (2) is\nnot likely to require that the other party make a public announcement regarding such offer or proposal. Each of eBay and Gmarket also agrees during\nsuch period not to request the other party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of\nthis Section 14 (including this sentence).\n15. If any Proprietary Information includes materials or information subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, each party understands and agrees that the\nparties have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the parties that the\nsharing of such material is not intended to, and shall not waive or diminish in any way the confidentiality of such material or its continued protection\nunder the attorney-client privilege, work product doctrine, or other applicable privilege. All Proprietary Information provided by a party that is\nentitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection\nunder these privileges, this agreement, and under the joint defense doctrine.\n16. Each party acknowledges and agrees that no failure or delay by the other party in exercising any right, power or privilege hereunder will operate\nas a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower,\nor\nprivilege hereunder. The agreements set forth herein may be waived or modified only by an agreement in writing signed on behalf of the parties\nhereto.\nSincerely,\nGmarket Inc.\nBy:\n/s/ John Milburn\nName: John Milburn\nTitle: Chairman, Special Committee\nDate: January 18, 2009\nInterpark Corporation\nBy:\n/s/ Ki-Hyung Lee\nName: Ki-Hyung Lee\nTitle: Chairman and CEO\nDate: January 19, 2009\nKi-Hyung Lee\n/s/ Ki-Hyung Lee\nDate: January 19, 2009\nAccepted and agreed as of the effective date hereof by and\non behalf of eBay Inc.:\nBy:\n/s/ Lorraine McDonough\nName: Lorraine McDonough\nTitle: Vice President, Corporate Development\nDate: January 17, 2009	EX-99.(E)(10) 3 dex99e10.htm CONFIDENTIALITY AGREEMENT - CHAIRMAN LEE\nExhibit (e)(10)\neBay, Inc.\n2145 Hamilton Avenue\nSan Jose, California 95125\nwww.ebay.com\nJanuary 17, 2009\neBay Inc.\n2145 Hamilton Avenue\nSan Jose, CA 95125\nDear Sirs/Madams,\n1. In connection with the potential purchase by eBay Inc. (the “Proposed Investor” or “eBay”) or an Affiliate (as defined below) thereof of shares\nof Gmarket Inc. (“Gmarket”), including from Interpark Corporation (“Interpark”) and Mr. Ki-Hyung Lee (“Mr. Lee” and, together with Interpark,\nthe “Shareholders”), and the potential combination of Gmarket and Internet Auction Co., Ltd. (the foregoing potential transactions being referred to\nas the “Proposed Transaction”), each of the parties hereto may, in its sole discretion, make available to the other parties and their respective\nAffiliates, Staff (as defined below) and Representatives (as defined below), certain Proprietary Information (as defined below) (the party disclosing\nsuch information being referred to as the “Discloser” and the party receiving such information being referred to as the “Recipient”). For the\npurposes of this agreement, “Affiliates” shall mean any person or entity controlling, controlled by or under common control with a relevant party. As\nused in this definition of term “Affiliate,” “controlling” (including the terms “controlled by” and “under common control with”) means the\npossession, directly or indirectly, of the power to direct or cause time direction of the management policies of a person by reason of ownership of\nvoting securities, by contract or otherwise.\n2. “Proprietary Information” of the Discloser shall mean any information, documents or data provided or made available by (or at the direction of)\nthe Discloser or any of its Affiliates (or any of their respective Staff or Representatives) to the Recipient or any of its Affiliates (or any of their\nrespective Staff or Representatives) in any form (whether directly or indirectly and whether written or oral) which the Discloser considers\nproprietary and confidential and/or, if applicable, is proprietary information of the Discloser or any of its Affiliates, and shall include all notes,\nanalyses, compilations, memos, studies, correspondence, documents, data or other records prepared by the Recipient or its Affiliates or their\nrespective Staff or Representatives, which contain, reflect, summarize or are based on, in whole or in part, such Proprietary Information, as well as\ninformation (the “Transaction Information”) concerning: (a) the content of any discussions of the Proposed Transaction between the parties,\nincluding any terms and conditions under review (including any draft Stock Purchase Agreement), (b) the fact that any such discussions are taking\nplace between the parties, or (c) the status of such discussions.\n3. The Recipient hereby undertakes to the Discloser that it will keep the Discloser ’s Proprietary Information confidential, that it will not use the\nDiscloser ’s Proprietary Information other than in connection with its evaluation of the Proposed Transaction, and that it will not directly or indirectly\ndisclose the Discloser’s Proprietary Information, other than as permitted pursuant to this agreement. Each of the parties to this agreement agrees that\nit will keep the Transaction Information confidential and that it will not, directly or indirectly disclose the Transaction Information, other than as\npermitted pursuant to this agreement. The Recipient agrees that it will use the same standard of care and safeguarding of the Discloser’s Proprietary\nInformation as it employs in protecting its own proprietary information which it desires not to disseminate or publish.\n4. The Recipient may disclose the Discloser’s Proprietary Information and the Transaction Information to such of its and its Affiliates’ directors,\nofficers and employees (collectively, the “Staff”) and to its or its Affiliates’ agents, consultants and professional advisers (collectively the\n“Representatives”) who need to know such information in connection with the Recipient’s evaluation of the Proposed Transaction and shall cause\nits Affiliates, Staff and Representatives to observe the terms of this agreement. Each of the parties shall be fully responsible for any breach of the\nterms of this agreement by it and any of its Affiliates, Representatives or Staff.\n5. For the purposes of this agreement, the Proprietary Information shall not include information or data (or any document) that:\n(a) is or becomes generally available to the public (other than as a result of disclosure in contravention of this agreement);\n(b) is or becomes available to the Recipient or any of its Affiliates, Staff or Representatives on a non-confidential basis from a source other\nthan the Discloser or its Affiliates (or any of their respective Staff or Representatives), provided that none of the Recipient or its\nAffiliates, Staff or Representatives knows or has reason to know that disclosure to the Recipient or any of its Affiliates, Staff or\nRepresentatives is in contravention of a confidentiality agreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, the Discloser; or\n(c) has been developed by the Recipient or any of its Affiliates, Staff or Representatives without the use of or reference to the Discloser’s\nProprietary Information; or\n(d) was in the possession of, or was rightfully known by, the Recipient or any of its Affiliates, Staff or Representatives prior to receipt\nthereof from the Discloser and was not the subject of a confidentiality agreement with the Discloser or any of its Affiliates.\n6. If any party or any of its Affiliates, Staff or Representatives is requested or required by any court of competent jurisdiction, any competent\njudicial, governmental or regulatory body or pursuant to any relevant law or regulation to disclose any Proprietary Information of another party or\nany Transaction Information, such party (to the extent permitted) shall promptly notify the other parties of such request or requirement so that the\nother parties have an opportunity to either seek a protective order, to otherwise seek to protect the Proprietary Information or Transaction\nInformation, as the case may be, or waive compliance with the provisions of this agreement. If, in the absence of a protective order or other remedy\nor the receipt of a waiver, such party or any of its Affiliates, Staff or Representatives is advised by outside counsel that such party or such Affiliate,\nStaff or Representative, as the case may be, is legally compelled to disclose the Proprietary Information or Transaction Information, as the case may\nbe, such party or such Affiliate, Staff or Representative, as the case may be, may, without liability hereunder, disclose only that portion of the\nProprietary Information or Transaction Information, as the case may be, which such counsel advises is legally required to be disclosed. Each party\nshall cooperate with the other parties to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded\nthe Proprietary Information or Transaction Information, as the case may be, by such tribunal.\n7. Nothing contained in this agreement, nor any exchange of the Discloser ’s Proprietary Information, shall grant or confer upon the Recipient, its\nAffiliates or its Staff or Representatives any right, license or authority in or to the Discloser’s Proprietary Information and all rights and intellectual\nproperty in the Discloser’s Proprietary Information shall belong to the Discloser. If requested by the Discloser, the Recipient will promptly return to\nthe Discloser (or procure the return of) (or, at the Recipient’s option, destroy, and certify, by a duly authorized officer, such destruction to the\nDiscloser), all tangible Proprietary Information of the Discloser which is in the possession of the Recipient, its Affiliates or its Staff or\nRepresentatives. Notwithstanding anything to the contrary contained in this agreement, (a) the Recipient may deposit one archival set of the\nProprietary Information with outside counsel solely for evidentiary purposes in connection with a party’s breach of this agreement; and (b) the\naccounting and financial advisors of the Recipient may keep such Proprietary Information as required by applicable law or professional\nrequirements. Nothing in this agreement shall preclude a party from discussing, reviewing, developing for itself, having developed, or developing for\nthird parties, materials which\nare competitive with the Proprietary Information, irrespective of their similarity to the Proprietary Information, so long as such party complies with\nthe terms of this agreement. Access to the Discloser’s Proprietary Information shall not preclude an individual Representative of a Recipient who has\nseen or otherwise had access to such Proprietary Information from working on future projects that related to similar subject matters.\n8. The Recipient agrees that the Discloser (including its Staff and Representatives) makes no representations or warranties express or implied as to\nthe accuracy or completeness of any of the Discloser’s Proprietary Information. Only those representations or warranties which are made in a final\ndefinitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to such limitations and restrictions as\nmay be specified therein, will have any legal effect. Except as may be set forth in such final definitive agreement, a Discloser (including its Staff and\nRepresentatives) shall have no liability to the Recipient, its Affiliates or its Staff and Representatives relating to or resulting from the disclosure or\nuse of the Discloser’s Proprietary Information or for any errors or omissions therefrom and none of the Discloser or its Affiliates, Staff or\nRepresentatives shall have any obligation to update or clarify any information so provided.\n9. Within seven days following the Execution Date, Gmarket shall by one or more written notices to eBay identify the individuals to be included in\nExhibit A (referred to herein), and eBay shall by one or more written notices to Gmarket identify the individuals to be included in Exhibit B (referred\nto herein), which individuals shall be included in Exhibit A and Exhibit B to this agreement without further action by either party. eBay hereby\nagrees that, without the prior written consent of Gmarket, for a period of one year from the Execution Date (as defined below), (a) it shall not,\ndirectly or through any other person acting at the direction of or in concert with such party, solicit or intentionally entice any of the individuals\nidentified on Exhibit A to leave their current employment with Gmarket so long as such individuals are employed by Gmarket, and (b) none of its\nStaff who has been made aware of this agreement or who has otherwise received Proprietary Information of Gmarket shall, directly or through any\nother person acting at the direction of or in concert with such person, solicit or intentionally entice any other current employees of Gmarket with\nwhom eBay has had contact, or with respect to whom eBay received Proprietary Information, in each case during the evaluation of the Proposed\nTransaction (the individuals identified on Exhibit A and the employees of Gmarket referred to in this clause “(b)” being hereinafter referred to as the\n“Specified Employees of Gmarket”) to leave their current employment so long as they are employed by Gmarket. Gmarket hereby agrees that,\nwithout the prior written consent of eBay, for a period of one year from the date of this agreement, (i) it shall not, directly or through any other\nperson acting at the direction of or in concert with such party, solicit or intentionally entice any of the individuals identified on Exhibit B to leave\ntheir current employment with eBay or a subsidiary of eBay so long as such individuals are employed by eBay or one of its subsidiaries, and\n(ii) none of its Staff who has been made aware of this agreement or who has otherwise received Proprietary Information of eBay shall, directly or\nthrough any other person acting at the direction of or in concert with such person, solicit or intentionally entice any other current employees of eBay\nor any of its subsidiaries with whom Gmarket has had contact, or with respect to whom Gmarket received Proprietary Information, in each case\nduring the evaluation of the Proposed Transaction (the individuals identified on Exhibit B and the employees of eBay or its subsidiaries referred to in\nthis clause “(b)” being hereinafter referred to as the “Specified Employees of eBay”) to leave their current employment so long as they are\nemployed by eBay or one of its subsidiaries. Notwithstanding anything to the contrary contained in this Section 9, none of the following actions by\neBay or Gmarket shall constitute a breach of this Section 9: (A) any solicitation for employment by means of a general solicitation or advertisement\nnot specifically targeted at the Specified Employees of the other party; (B) engaging any recruiting firm to identify or solicit persons for employment\non behalf of such party, or soliciting the employment of a Specified Employee of the other party who is identified by a recruiting firm, so long as\nsuch recruiting firm is not instructed to target such individuals; or (C) by entering into discussions with any Employee of the other party who shall\nhave initiated contact or sought employment with such party or any of its Affiliates without first having been solicited in violation of this Section 9\n(other than Specified Employees of the other party), provided that, if a party has inadvertently violated this provision by so entering into discussions\nwith a Specified Employee of the other party, such violation may be cured by terminating the discussions with such Specified Employee,\nwithdrawing an offer of employment made to such Specified Employee, or terminating the employment of such Specified Employee, as appropriate.\n10. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this agreement, of the restrictions\nimposed by the United States securities laws and other applicable laws on the purchase or sale of securities by any person who has received material,\nnon-public information from the issuer of such securities and on the communication of such information to any other person when it is reasonably\nforeseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n11. This agreement may be executed in counterparts and shall be binding, as between Gmarket and eBay, when executed by both of them (the\n“Execution Date”), and shall be binding on Interpark and Mr. Lee when executed by them. This agreement shall be effective as of October 30, 2008\n(the “Effective Date”), when executed by Gmarket and eBay, and shall terminate upon the earlier of (i) two years after completion of the Proposed\nTransaction or (ii) three years after the Effective Date; provided, however, that the provisions of Sections 9 and 14 of this agreement shall be\neffective only as of the Execution Date. The parties hereby agree that any Proprietary Information disclosed prior to the Effective Date between eBay\nand Gmarket shall also be subject to the terms of the Mutual Nondisclosure Agreement dated January 24, 2006 between eBay and Gmarket (the\n“Original Gmarket NDA”), and any Proprietary Information disclosed prior to the Effective Date between eBay and Interpark shall also be subject\nto the terms of the Mutual Nondisclosure Agreement dated December 13, 2006 between eBay and lnterpark (the “Original lnterpark NDA”).\n12. This agreement shall be governed by the laws of the State of Delaware. The Delaware courts (including, to the extent it has jurisdiction, the\nChancery Court located in Delaware) shall have exclusive jurisdiction for the resolution of any disputes in connection with this agreement. It is\nunderstood and agreed that money damages would not be a sufficient remedy for any breach of this agreement by any party and that each party shall\nbe entitled to equitable relief, including injunction and specific performance, as a remedy for such breach. In the event of litigation relating to this\nagreement, if a court of competent jurisdiction determines in a final order from which there is no appeal that this agreement has been breached by a\nparty or by its Staff or Representatives, the breaching party or the party whose Staff or Representatives have breached this agreement, as the case\nmay be, will reimburse the other party for its costs and expenses (including, without limitation, legal fees and expenses) incurred in connection with\nthe enforcement of this agreement and such litigation. Such remedies shall not be deemed to be the exclusive remedy for a breach of this agreement\nbut shall be in addition to all other remedies available at law or equity.\n13. This agreement is intended to amend and restate the confidentiality agreement entered into between the parties on October 30, 2008 (the “2008\nNDA”); provided, however, that if a party to this agreement does not execute this agreement, then the 2008 NDA shall remain in full force and effect\nwith respect to that party. This agreement, the Original Gmarket NDA, the Original Interpark NDA and, solely with respect to any party who does\nnot execute this Agreement, the 2008 NDA represent the whole agreement among Gmarket, the Shareholders and the Proposed Investor relating to\nthe matters referred to in this agreement and this agreement may not be amended except in writing signed by Gmarket, the Shareholders and the\nProposed Investor. This agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement.\n14. Subject to the proviso to this sentence, each of eBay and Gmarket agrees that, for a period of eighteen months after the Execution Date, unless\nspecifically invited in writing by the other party, neither it nor any of its officers, directors or controlled affiliates (as such term is defined under the\nSecurities Exchange Act of 1934, as amended (the “1934 Act”)) will in any manner, directly or indirectly:\na.\neffect, offer or propose (whether publicly or otherwise) to effect, or participate in, or in any way assist (with the knowledge that such\nparty is assisting with any of the actions described herein) any other Person to effect, offer or propose (whether publicly or otherwise) to\neffect or participate:\ni.\nany acquisition of any securities (or beneficial ownership thereof) or assets of the other party or any of its subsidiaries (other than\nthrough nondirected investments in mutual funds or other similar investments),\nii.\nany tender or exchange offer, merger or other business combination involving the other party or any of its subsidiaries,\niii.\nany recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the other party or any\nof its subsidiaries, or\niv.\nany “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents\nto vote any voting securities of the other party\n(it being understood that this clause (a) shall not restrict negotiations with respect to the Proposed Transaction until eBay is so notified in\nwriting by Gmarket);\nb. form, join or in any way participate in a “group” (as defined under the 1934 Act) for purposes of accomplishing any of the transactions\nreferred to in (a) above;\nc.\nmake any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving the other party or its securities or assets;\nd.\notherwise act, alone or in concert with others, to seek to control the management, Board of Directors or policies of the other party;\ne.\ntake any action which is likely to require that the other party make a public announcement regarding any of the types of matters set forth\nin (a) above; or\nf.\nenter into any discussions or arrangements with any third party (other than its Representatives) with respect to any of the foregoing.\nprovided, however, that, notwithstanding anything to the contrary contained in this Section 14, nothing in this Section 14 shall limit or otherwise\nrestrict either eBay or Gmarket from making or submitting any offer or proposal or entering into any discussions or negotiations (whether to or with\nthe other party or any shareholder of the other party), in each case relating to the acquisition of any of the securities or assets of the other party or any\nsubsidiary of the other party or any business combination or other transaction involving the other party or any subsidiary of the other party\n(including, without limitation, the types of transactions referred to in (a) above), so long as such offer or proposal (1) is not made publicly, and (2) is\nnot likely to require that the other party make a public announcement regarding such offer or proposal. Each of eBay and Gmarket also agrees during\nsuch period not to request the other party (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of\nthis Section 14 (including this sentence).\n15. If any Proprietary Information includes materials or information subject to the attorney-client privilege, work product doctrine or any other\napplicable privilege concerning pending or threatened legal proceedings or governmental investigations, each party understands and agrees that the\nparties have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the parties that the\nsharing of such material is not intended to, and shall not waive or diminish in any way the confidentiality of such material or its continued protection\nunder the attorney-client privilege, work product doctrine, or other applicable privilege. All Proprietary Information provided by a party that is\nentitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection\nunder these privileges, this agreement, and under the joint defense doctrine.\n16. Each party acknowledges and agrees that no failure or delay by the other party in exercising any right, power or privilege hereunder will operate\nas a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power, or\nprivilege hereunder. The agreements set forth herein may be waived or modified only by an agreement in writing signed on behalf of the parties\nhereto.\nSincerely,\nGmarket Inc.\nBy: /s/ John Milburn\nName: John Milburn\nTitle: Chairman, Special Committee\nDate: January 18, 2009\nInterpark Corporation\nBy: /s/ Ki-Hyung Lee\nName: Ki-Hyung Lee\nTitle: Chairman and CEO\nDate: January 19, 2009\nKi-Hyung Lee\n/s/ Ki-Hyung Lee\nDate: January 19, 2009\nAccepted and agreed as of the effective date hereof by and\non behalf of eBay Inc.:\nBy: /s/ Lorraine McDonough\nName: Lorraine McDonough\nTitle: Vice President, Corporate Development\nDate: January 17, 2009
+ca73abb1bc8bdd8cdf09d90bb0146cf3.pdf	effective_date jurisdiction party term	EX-10.4 2 dex104.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.4\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT made as of the 3rd of July 2007 (the “Agreement”), between Orthovita\nInc., a Pennsylvania corporation, with offices at 77 Great Valley Parkway, Malvern, Pennsylvania 19355 (the “Company”) and Maarten Persenaire\n(“Employee”).\nWHEREAS, the Company shall increase the salary and annual bonus opportunity for Employee effective July 3, 2007; and\nNOW THEREFORE, in consideration of such salary and bonus opportunity increase, and the mutual covenants and agreements herein\ncontained, the parties, intending to be legally bound, hereto agree as follows:\n1. Restrictive Covenants\n(a) Non-Competition. During the term of Employee’s employment with the Company, which commenced April 15, 1999 (the “Term”), and for\nthe 9- month period beginning on the date the Employee’s employment terminates, for any reason (the “Restriction Period”), the Employee hereby\nagrees that he will not, without the Company’s express written consent, engage (directly or indirectly) in any employment or business activity which\ndesigns, manufactures, sells, licenses or markets any technologies or competing products of the Company or any of its subsidiaries or affiliates, or\nwould otherwise conflict with the Employee’s employment by the Company. Such products and technologies include those products and\ntechnologies which the Company or any of its subsidiaries or affiliates has developed, manufactured, sold, licensed or marketed or, at the time of\ntermination of Employee’s employment, may be in the process of developing, manufacturing, selling, licensing or marketing.\n(b) Non-Solicitation and Non-Hire of Company Personnel. During the Term and for the Restriction Period, the Employee hereby agrees that he\nwill not, either directly or through others, hire or attempt to hire, any current or former employee of the Company, or solicit or attempt to solicit any\ncurrent or former employee, consultant or independent contractor of the Company to change or terminate his, her or its relationship with the\nCompany or otherwise to become an employee for or of any other person or business entity, unless more than twelve months shall have elapsed\nbetween the last day of such person’s employment or service with the Company and the first date of such solicitation or hiring or attempt to solicit or\nhire.\n(c) Non-Solicitation of Customers. During the Term and for the Restriction Period, the Employee hereby agrees that he will not, either directly,\nthrough others or on behalf of third parties, solicit, divert or appropriate, or attempt to solicit, divert or appropriate any customer or actively sought\nprospective customer of the Company for the purpose of providing such customer or actively sought prospective customer with services or products\ncompetitive with those offered by the Company during the Term.\n(d) Non-Disparagement. Employee agrees that Employee will not disparage the Company, its subsidiaries and parents, and their respective\nofficers, directors, employees, and agents, and its and their respective successors and assigns, heirs, executors, and administrators, or make any\npublic statement reflecting negatively on the Company, its subsidiaries and parents, and their respective officers, directors, employees, and agents,\nand its and their respective successors and assigns, heirs, executors, and administrators, to third parties, including any matters relating to the\noperation or management of the Company, irrespective of the truthfulness or falsity of such statement.\n(e) Proprietary Information. At all times during the Term and at all times thereafter, the Employee will hold in strictest confidence and will not\ndisclose, use, lecture upon or publish any of the Company’s Proprietary Information (as defined below), except as such disclosure, use or publication\nmay be required in connection with the Employee’s work for the Company, or unless the Company expressly authorizes such disclosure in writing or\ndisclosure is required by law or in a judicial or administrative proceeding, in which event the Employee shall promptly notify the Company of the\nrequired disclosure and assist the Company if it determines to resist the disclosure. “Proprietary Information” shall mean any and all confidential\nand/or proprietary knowledge, data or information of the Company, its affiliated entities and partners, including but not limited to information\nrelating to financial matters, investments, budgets, business plans, marketing plans, personnel matters, business contacts, products, processes, know-\nhow, designs, methods, improvements, discoveries, inventions, ideas, data, programs, and other works of authorship.\n(f) Invention Assignment. The Employee agrees that all inventions, innovations, improvements, developments, methods, designs, analyses,\nreports, and all similar or related information which relates to the Company’s actual or anticipated business, research and development or existing or\nfuture products or services and which are conceived, developed or made by Employee while employed by the Company (“Work Product”) belong to\nthe Company. The Employee will promptly disclose such Work Product to the Company’s Chief Executive Officer (“CEO”) or Board of Directors\n(“Board”) and perform all actions reasonably requested by the CEO or the Board (whether during or after the Term) to establish and confirm such\nownership (including, without limitation, assignments, consents, powers of attorneys and other instruments).\n(g) Return of Company Property. Upon termination of the Employee’s employment with the Company for any reason whatsoever, voluntarily\nor involuntarily, and at any earlier time the Company requests, the Employee will deliver to the person designated by the Company all originals and\ncopies of all documents and property of the Company in the Employee’s possession, under the Employee’s control or to which the Employee may\nhave access. The Employee will not reproduce or appropriate for the Employee’s own use, or for the use of others, any property, Proprietary\nInformation or Company inventions.\n2. Legal and Equitable Remedies. Because the Employee’s services are personal and unique and the Employee has had and will continue to have\naccess to and has become and will continue to become acquainted with the proprietary information of the Company, and because any breach\n2\nby the Employee of any of the restrictive covenants contained in Section 1 would result in irreparable injury and damage for which money damages\nwould not provide an adequate remedy, the Company shall have the right to enforce Section 1 and any of its provisions by injunction, specific\nperformance or other equitable relief, without bond and without prejudice to any other rights and remedies that the Company may have for a breach,\nor threatened breach, of the restrictive covenants set forth in Section 1. The Employee agrees that in any action in which the Company seeks\ninjunction, specific performance or other equitable relief, the Employee will not assert or contend that any of the provisions of Section 1 are\nunreasonable or otherwise unenforceable. The Employee irrevocably and unconditionally (a) agrees that any legal proceeding arising out of this\nparagraph may be brought in the United States District Court for the Eastern District of Pennsylvania, or if such court does not have jurisdiction or\nwill not accept jurisdiction, in any court of general jurisdiction in Chester County, Pennsylvania, (b) consents to the non-exclusive jurisdiction of\nsuch court in any such proceeding, and (c) waives any objection to the laying of venue of any such proceeding in any such court. The Employee also\nirrevocably and unconditionally consents to the service of any process, pleadings, notices or other papers.\n3. Miscellaneous.\n(a) Governing Law. The rights of the Company under this Agreement are in addition to, not in lieu of, the rights afforded to it by law, which\nshall in no way be affected hereby. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of\nPennsylvania without giving effect to the conflicts of laws provisions thereof.\n(b) Binding Agreement; Assignment. This Agreement shall inure to the benefit of and becoming binding upon the Company, its successors and\nassigns, and Employees, his or her heirs, executors, administrators and legal representatives; provided, however, that the obligations of Employee\nhereunder may not be delegated.\n(c) Amendment Headings. This Agreement represents the entire agreement of the parties with respect to the subject matter hereof and may not\nbe changed or terminated orally. The descriptive headings of the several sections of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement.\n(d) Waiver. No waiver by any party of any breach of any term hereof shall be construed as a waiver of any subsequent breach of that term or\nany other term of the same or of a different nature.\n(e) Notices. Any notices of other communications given pursuant to this Agreement shall be in writing and shall be deemed given when\ndelivered or mailed in any general or branch office of the United States Postal Service by registered or certified mail, return receipt requested, to the\nparties’ respective addresses set forth in this Agreement. Either party to this Agreement may change the aforesaid address by notice to the other party\nhereto given in the manner prescribed in this paragraph; provided, however, that notice of change of address will be effective only upon receipt.\n3\n(f) Severability. If any court of competent jurisdiction determines that it is not possible to construe any provision of this Agreement\nconsistently with a law or public policy, and consequently holds that said provision is invalid, such holding shall in no way affect the validity of the\nother provisions of this Agreement.\n(g) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be original and all of which taken together\nshall constitute one and the same instrument.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written.\nORTHOVITA INC.\nBy: /s/ Antony Koblish\n/s/ Maarten Persenaire, M.D .\nPresident & CEO\nAddress:\n4	EX-10.4 2 dex104.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.4\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT made as of the 3rd of July 2007 (the “Agreement”), between Orthovita\nInc., a Pennsylvania corporation, with offices at 77 Great Valley Parkway, Malvern, Pennsylvania 19355 (the “Company”) and Maarten Persenaire\n(“Employee”).\nWHEREAS, the Company shall increase the salary and annual bonus opportunity for Employee effective July 3, 2007; and\nNOW THEREFORE, in consideration of such salary and bonus opportunity increase, and the mutual covenants and agreements herein\ncontained, the parties, intending to be legally bound, hereto agree as follows:\n1. Restrictive Covenants\n(a) Non-Competition. During the term of Employee’s employment with the Company, which commenced April 15, 1999 (the “Term”), and for\nthe 9- month period beginning on the date the Employee’s employment terminates, for any reason (the “Restriction Period”), the Employee hereby\nagrees that he will not, without the Company’s express written consent, engage (directly or indirectly) in any employment or business activity which\ndesigns, manufactures, sells, licenses or markets any technologies or competing products of the Company or any of its subsidiaries or affiliates, or\nwould otherwise conflict with the Employee’s employment by the Company. Such products and technologies include those products and\ntechnologies which the Company or any of its subsidiaries or affiliates has developed, manufactured, sold, licensed or marketed or, at the time of\ntermination of Employee’s employment, may be in the process of developing, manufacturing, selling, licensing or marketing.\n \n(b) Non-Solicitation and Non-Hire of Company Personnel. During the Term and for the Restriction Period, the Employee hereby agrees that he\nwill not, either directly or through others, hire or attempt to hire, any current or former employee of the Company, or solicit or attempt to solicit any\ncurrent or former employee, consultant or independent contractor of the Company to change or terminate his, her or its relationship with the\nCompany or otherwise to become an employee for or of any other person or business entity, unless more than twelve months shall have elapsed\nbetween the last day of such person’s employment or service with the Company and the first date of such solicitation or hiring or attempt to solicit or\nhire.\n(c) Non-Solicitation of Customers. During the Term and for the Restriction Period, the Employee hereby agrees that he will not, either directly,\nthrough others or on behalf of third parties, solicit, divert or appropriate, or attempt to solicit, divert or appropriate any customer or actively sought\nprospective customer of the Company for the purpose of providing such customer or actively sought prospective customer with services or products\ncompetitive with those offered by the Company during the Term.\n(d) Non-Disparagement. Employee agrees that Employee will not disparage the Company, its subsidiaries and parents, and their respective\nofficers, directors, employees, and agents, and its and their respective successors and assigns, heirs, executors, and administrators, or make any\npublic statement reflecting negatively on the Company, its subsidiaries and parents, and their respective officers, directors, employees, and agents,\nand its and their respective successors and assigns, heirs, executors, and administrators, to third parties, including any matters relating to the\noperation or management of the Company, irrespective of the truthfulness or falsity of such statement.\n(e) Proprietary Information. At all times during the Term and at all times thereafter, the Employee will hold in strictest confidence and will not\ndisclose, use, lecture upon or publish any of the Company’s Proprietary Information (as defined below), except as such disclosure, use or publication\nmay be required in connection with the Employee’s work for the Company, or unless the Company expressly authorizes such disclosure in writing or\ndisclosure is required by law or in a judicial or administrative proceeding, in which event the Employee shall promptly notify the Company of the\nrequired disclosure and assist the Company if it determines to resist the disclosure. “Proprietary Information” shall mean any and all confidential\nand/or proprietary knowledge, data or information of the Company, its affiliated entities and partners, including but not limited to information\nrelating to financial matters, investments, budgets, business plans, marketing plans, personnel matters, business contacts, products, processes, know-\nhow, designs, methods, improvements, discoveries, inventions, ideas, data, programs, and other works of authorship.\n(f) Invention Assignment. The Employee agrees that all inventions, innovations, improvements, developments, methods, designs, analyses,\nreports, and all similar or related information which relates to the Company’s actual or anticipated business, research and development or existing or\nfuture products or services and which are conceived, developed or made by Employee while employed by the Company (“Work Product”) belong to\nthe Company. The Employee will promptly disclose such Work Product to the Company’s Chief Executive Officer (“CEO”) or Board of Directors\n(“Board”) and perform all actions reasonably requested by the CEO or the Board (whether during or after the Term) to establish and confirm such\nownership (including, without limitation, assignments, consents, powers of attorneys and other instruments).\nor involuntarily, and at any earlier time the Company requests, the Employee will deliver to the person designated by the Company all originals and\ncopies of all documents and property of the Company in the Employee’s possession, under the Employee’s control or to which the Employee may\nhave access. The Employee will not reproduce or appropriate for the Employee’s own use, or for the use of others, any property, Proprietary\nInformation or Company inventions.\n2. Legal and Equitable Remedies. Because the Employee’s services are personal and unique and the Employee has had and will continue to have\naccess to and has become and will continue to become acquainted with the proprietary information of the Company, and because any breach\n2\nby the Employee of any of the restrictive covenants contained in Section 1 would result in irreparable injury and damage for which money damages\nwould not provide an adequate remedy, the Company shall have the right to enforce Section 1 and any of its provisions by injunction, specific\nperformance or other equitable relief, without bond and without prejudice to any other rights and remedies that the Company may have for a breach,\nor threatened breach, of the restrictive covenants set forth in Section 1. The Employee agrees that in any action in which the Company seeks\ninjunction, specific performance or other equitable relief, the Employee will not assert or contend that any of the provisions of Section 1 are\nunreasonable or otherwise unenforceable. The Employee irrevocably and unconditionally (a) agrees that any legal proceeding arising out of this\nparagraph may be brought in the United States District Court for the Eastern District of Pennsylvania, or if such court does not have jurisdiction or\nwill not accept jurisdiction, in any court of general jurisdiction in Chester County, Pennsylvania, (b) consents to the non-exclusive jurisdiction of\nsuch court in any such proceeding, and (c) waives any objection to the laying of venue of any such proceeding in any such court. The Employee also\nirrevocably and unconditionally consents to the service of any process, pleadings, notices or other papers.\n3. Miscellaneous.\n(a) Governing Law. The rights of the Company under this Agreement are in addition to, not in lieu of, the rights afforded to it by law, which\nshall in no way be affected hereby. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of\nPennsylvania without giving effect to the conflicts of laws provisions thereof.\nassigns, and Employees, his or her heirs, executors, administrators and legal representatives; provided, however, that the obligations of Employee\nhereunder may not be delegated.\n(c) Amendment Headings. This Agreement represents the entire agreement of the parties with respect to the subject matter hereof and may not\nbe changed or terminated orally. The descriptive headings of the several sections of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement.\n(d) Waiver. No waiver by any party of any breach of any term hereof shall be construed as a waiver of any subsequent breach of that term or\nany other term of the same or of a different nature.\n(e) Notices. Any notices of other communications given pursuant to this Agreement shall be in writing and shall be deemed given when\ndelivered or mailed in any general or branch office of the United States Postal Service by registered or certified mail, return receipt requested, to the\nparties’ respective addresses set forth in this Agreement. Either party to this Agreement may change the aforesaid address by notice to the other party\nhereto given in the manner prescribed in this paragraph; provided, however, that notice of change of address will be effective only upon receipt.\n3\n(f) Severability. If any court of competent jurisdiction determines that it is not possible to construe any provision of this Agreement\nconsistently with a law or public policy, and consequently holds that said provision is invalid, such holding shall in no way affect the validity of the\nother provisions of this Agreement.\n(g) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be original and all of which taken together\nshall constitute one and the same instrument.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written.\nORTHOVITA INC.\nBy: /s/ Antony Koblish /s/ Maarten Persenaire, M.D.\nPresident & CEO\nAddress:	EX-10.4 2 dex104.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.4\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT made as of the 3rd of July 2007 (the "Agreement"), between Orthovita\nInc., a Pennsylvania corporation, with offices at 77 Great Valley Parkway, Malvern, Pennsylvania 19355 (the "Company") and Maarten Persenaire\n("Employee").\nWHEREAS, the Company shall increase the salary and annual bonus opportunity for Employee effective July 3, 2007; and\nNOW THEREFORE, in consideration of such salary and bonus opportunity increase, and the mutual covenants and agreements herein\ncontained, the parties, intending to be legally bound, hereto agree as follows:\n1. Restrictive Covenants\n(a) Non-Competition. During the term of Employee's employment with the Company, which commenced April 15, 1999 (the "Term"), and for\nthe 9- month period beginning on the date the Employee's employment terminates, for any reason (the "Restriction Period"), the Employee hereby\nagrees that he will not, without the Company's express written consent, engage (directly or indirectly) in any employment or business activity which\ndesigns, manufactures, sells, licenses or markets any technologies or competing products of the Company or any of its subsidiaries or affiliates, or\nwould otherwise conflict with the Employee's employment by the Company. Such products and technologies include those products and\ntechnologies which the Company or any of its subsidiaries or affiliates has developed, manufactured, sold, licensed or marketed or, at the time of\ntermination of Employee's employment, may be in the process of developing, manufacturing, selling, licensing or marketing.\n(b) Non-Solicitation and Non-Hire of Company. Personnel. During the Term and for the Restriction Period, the Employee hereby agrees that he\nwill not, either directly or through others, hire or attempt to hire, any current or former employee of the Company, or solicit or attempt to solicit any\ncurrent or former employee, consultant or independent contractor of the Company to change or terminate his, her or its relationship with the\nCompany or otherwise to become an employee for or of any other person or business entity, unless more than twelve months shall have elapsed\nbetween the last day of such person's employment or service with the Company and the first date of such solicitation or hiring or attempt to solicit or\nhire.\n(c) Non-Solicitation of Customers. During the Term and for the Restriction Period, the Employee hereby agrees that he will not, either directly,\nthrough others or on behalf of third parties, solicit, divert or appropriate, or attempt to solicit, divert or appropriate any customer or actively sought\nprospective customer of the Company for the purpose of providing such customer or actively sought prospective customer with services or products\ncompetitive with those offered by the Company during the Term.\n(d) Non-Disparagement. Employee agrees that Employee will not disparage the Company, its subsidiaries and parents, and their respective\nofficers, directors, employees, and agents, and its and their respective successors and assigns, heirs, executors, and administrators, or make any\npublic statement reflecting negatively on the Company, its subsidiaries and parents, and their respective officers, directors, employees, and agents,\nand its and their respective successors and assigns, heirs, executors, and administrators, to third parties, including any matters relating to the\noperation or management of the Company, irrespective of the truthfulness or falsity of such statement.\n(e) Proprietary Information. At all times during the Term and at all times thereafter, the Employee will hold in strictest confidence and will not\ndisclose, use, lecture upon or publish any of the Company's Proprietary Information (as defined below), except as such disclosure, use or publication\nmay be required in connection with the Employee's work for the Company, or unless the Company expressly authorizes such disclosure in writing or\ndisclosure is required by law or in a judicial or administrative proceeding, in which event the Employee shall promptly notify the Company of the\nrequired disclosure and assist the Company if it determines to resist the disclosure. "Proprietary Information" shall mean any and all confidential\nand/or proprietary knowledge, data or information of the Company, its affiliated entities and partners, including but not limited to information\nrelating to financial matters, investments budgets, business plans, marketing plans, personnel matters, business contacts, products, processes, know-\nhow, designs, methods, improvements, discoveries, inventions, ideas, data, programs, and other works of authorship.\n(f) Invention Assignment. The Employee agrees that all inventions, innovations, improvements, developments, methods, designs, analyses,\nreports, and all similar or related information which relates to the Company's actual or anticipated business, research and development or existing or\nfuture products or services and which are conceived, developed or made by Employee while employed by the Company ("Work Product") belong\nto\nthe Company. The Employee will promptly disclose such Work Product to the Company's Chief Executive Officer ("CEO") or Board of Directors\n("Board") and perform all actions reasonably requested by the CEO or the Board (whether during or after the Term) to establish and confirm such\nownership (including, without limitation, assignments, consents, powers of attorneys and other instruments).\n(g) Return of Company. Property.. Upon termination of the Employee's employment with the Company for any reason whatsoever, voluntarily\nor involuntarily, and at any earlier time the Company requests, the Employee will deliver to the person designated by the Company all originals and\ncopies of all documents and property of the Company in the Employee's possession, under the Employee's control or to which the Employee may\nhave access. The Employee will not reproduce or appropriate for the Employee's own use, or for the use of others, any property, Proprietary\nInformation or Company inventions.\n2. Legal and Equitable Remedies. Because the Employee's services are personal and unique and the Employee has had and will continue to have\naccess to and has become and will continue to become acquainted with the proprietary information of the Company, and because any breach\n2\nby the Employee of any of the restrictive covenants contained in Section 1 would result in irreparable injury and damage for which money damages\nwould not provide an adequate remedy, the Company shall have the right to enforce Section 1 and any of its provisions by injunction, specific\nperformance or other equitable relief, without bond and without prejudice to any other rights and remedies that the Company may have for a breach,\nor threatened breach, of the restrictive covenants set forth in Section 1. The Employee agrees that in any action in which the Company seeks\ninjunction, specific performance or other equitable relief, the Employee will not assert or contend that any of the provisions of Section 1 are\nunreasonable or otherwise unenforceable. The Employee irrevocably and unconditionally (a) agrees that any legal proceeding arising out of this\nparagraph may be brought in the United States District Court for the Eastern District of Pennsylvania, or if such court does not have jurisdiction or\nwill not accept jurisdiction, in any court of general jurisdiction in Chester County, Pennsylvania, (b) consents to the non-exclusive jurisdiction of\nsuch court in any such proceeding, and (c) waives any objection to the laying of venue of any such proceeding in any such court. The Employee\nalso\nirrevocably and unconditionally consents to the service of any process, pleadings, notices or other papers.\n3. Miscellaneous.\n(a) Governing Law. The rights of the Company under this Agreement are in addition to, not in lieu of, the rights afforded to it by law, which\nshall in no way be affected hereby. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of\nPennsylvania without giving effect to the conflicts of laws provisions thereof.\n(b) Binding Agreement; Assignment. This Agreement shall inure to the benefit of and becoming binding upon the Company, its successors and\nassigns, and Employees, his or her heirs, executors, administrators and legal representatives; provided, however, that the obligations of Employee\nhereunder may not be delegated.\n(c) Amendment Headings. This Agreement represents the entire agreement of the parties with respect to the subject matter hereof and may not\nbe changed or terminated orally. The descriptive headings of the several sections of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement.\n(d) Waiver. No waiver by any party of any breach of any term hereof shall be construed as a waiver of any subsequent breach of that term or\nany other term of the same or of a different nature.\n(e) Notices. Any notices of other communications given pursuant to this Agreement shall be in writing and shall be deemed given when\ndelivered or mailed in any general or branch office of the United States Postal Service by registered or certified mail, return receipt requested, to the\nparties' respective addresses set forth in this Agreement. Either party to this Agreement may change the aforesaid address by notice to the other party\nhereto given in the manner prescribed in this paragraph; provided, however, that notice of change of address will be effective only upon receipt.\n3\n(f) Severability.. If any court of competent jurisdiction determines that it is not possible to construe any provision of this Agreement\nconsistently with a law or public policy, and consequently holds that said provision is invalid, such holding shall in no way affect the validity of the\nother provisions of this Agreement.\n(g) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be original and all of which taken together\nshall constitute one and the same instrument.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written.\nORTHOVITA INC.\nBy: /s/ Antony Koblish\n/s/ Maarten Persenaire, M.D.\nPresident & CEO\nAddress:\n4	EX-10.4 2 dex104.htm CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nEXHIBIT 10.4\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nThis CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT made as of the 3rd of July 2007 (the “Agreement”), between Orthovita\nInc., a Pennsylvania corporation, with offices at 77 Great Valley Parkway, Malvern, Pennsylvania 19355 (the “Company”) and Maarten Persenaire\n(“Employee”).\nWHEREAS, the Company shall increase the salary and annual bonus opportunity for Employee effective July 3, 2007; and\nNOW THEREFORE, in consideration of such salary and bonus opportunity increase, and the mutual covenants and agreements herein\ncontained, the parties, intending to be legally bound, hereto agree as follows:\n1. Restrictive Covenants\n(a) Non-Competition. During the term of Employee’s employment with the Company, which commenced April 15, 1999 (the “Term”), and for\nthe 9- month period beginning on the date the Employee’s employment terminates, for any reason (the “Restriction Period”), the Employee hereby\nagrees that he will not, without the Company’s express written consent, engage (directly or indirectly) in any employment or business activity which\ndesigns, manufactures, sells, licenses or markets any technologies or competing products of the Company or any of its subsidiaries or affiliates, or\nwould otherwise conflict with the Employee’s employment by the Company. Such products and technologies include those products and\ntechnologies which the Company or any of its subsidiaries or affiliates has developed, manufactured, sold, licensed or marketed or, at the time of\ntermination of Employee’s employment, may be in the process of developing, manufacturing, selling, licensing or marketing.\n(b) Non-Solicitation and Non-Hire of Company Personnel. During the Term and for the Restriction Period, the Employee hereby agrees that he\nwill not, either directly or through others, hire or attempt to hire, any current or former employee of the Company, or solicit or attempt to solicit any\ncurrent or former employee, consultant or independent contractor of the Company to change or terminate his, her or its relationship with the\nCompany or otherwise to become an employee for or of any other person or business entity, unless more than twelve months shall have elapsed\nbetween the last day of such person’s employment or service with the Company and the first date of such solicitation or hiring or attempt to solicit or\nhire.\n(c) Non-Solicitation of Customers. During the Term and for the Restriction Period, the Employee hereby agrees that he will not, either directly,\nthrough others or on behalf of third parties, solicit, divert or appropriate, or attempt to solicit, divert or appropriate any customer or actively sought\nprospective customer of the Company for the purpose of providing such customer or actively sought prospective customer with services or products\ncompetitive with those offered by the Company during the Term.\n(d) Non-Disparagement. Employee agrees that Employee will not disparage the Company, its subsidiaries and parents, and their respective\nofficers, directors, employees, and agents, and its and their respective successors and assigns, heirs, executors, and administrators, or make any\npublic statement reflecting negatively on the Company, its subsidiaries and parents, and their respective officers, directors, employees, and agents,\nand its and their respective successors and assigns, heirs, executors, and administrators, to third parties, including any matters relating to the\noperation or management of the Company, irrespective of the truthfulness or falsity of such statement.\n(e) Proprietary Information. At all times during the Term and at all times thereafter, the Employee will hold in strictest confidence and will not\ndisclose, use, lecture upon or publish any of the Company’s Proprietary Information (as defined below), except as such disclosure, use or publication\nmay be required in connection with the Employee’s work for the Company, or unless the Company expressly authorizes such disclosure in writing or\ndisclosure is required by law or in a judicial or administrative proceeding, in which event the Employee shall promptly notify the Company of the\nrequired disclosure and assist the Company if it determines to resist the disclosure. “Proprietary Information” shall mean any and all confidential\nand/or proprietary knowledge, data or information of the Company, its affiliated entities and partners, including but not limited to information\nrelating to financial matters, investments, budgets, business plans, marketing plans, personnel matters, business contacts, products, processes, know-\nhow, designs, methods, improvements, discoveries, inventions, ideas, data, programs, and other works of authorship.\n(f) Invention Assignment. The Employee agrees that all inventions, innovations, improvements, developments, methods, designs, analyses,\nreports, and all similar or related information which relates to the Company’s actual or anticipated business, research and development or existing or\nfuture products or services and which are conceived, developed or made by Employee while employed by the Company (“Work Product”) belong to\nthe Company. The Employee will promptly disclose such Work Product to the Company’s Chief Executive Officer (“CEO”) or Board of Directors\n(“Board”) and perform all actions reasonably requested by the CEO or the Board (whether during or after the Term) to establish and confirm such\nownership (including, without limitation, assignments, consents, powers of attorneys and other instruments).\n(g) Return of Company Property. Upon termination of the Employee’s employment with the Company for any reason whatsoever, voluntarily\nor involuntarily, and at any earlier time the Company requests, the Employee will deliver to the person designated by the Company all originals and\ncopies of all documents and property of the Company in the Employee’s possession, under the Employee’s control or to which the Employee may\nhave access. The Employee will not reproduce or appropriate for the Employee’s own use, or for the use of others, any property, Proprietary\nInformation or Company inventions.\n2. Legal and Equitable Remedies. Because the Employee’s services are personal and unique and the Employee has had and will continue to have\naccess to and has become and will continue to become acquainted with the proprietary information of the Company, and because any breach\n2\nby the Employee of any of the restrictive covenants contained in Section 1 would result in irreparable injury and damage for which money damages\nwould not provide an adequate remedy, the Company shall have the right to enforce Section 1 and any of its provisions by injunction, specific\nperformance or other equitable relief, without bond and without prejudice to any other rights and remedies that the Company may have for a breach,\nor threatened breach, of the restrictive covenants set forth in Section 1. The Employee agrees that in any action in which the Company seeks\ninjunction, specific performance or other equitable relief, the Employee will not assert or contend that any of the provisions of Section 1 are\nunreasonable or otherwise unenforceable. The Employee irrevocably and unconditionally (a) agrees that any legal proceeding arising out of this\nparagraph may be brought in the United States District Court for the Eastern District of Pennsylvania, or if such court does not have jurisdiction or\nwill not accept jurisdiction, in any court of general jurisdiction in Chester County, Pennsylvania, (b) consents to the non-exclusive jurisdiction of\nsuch court in any such proceeding, and (c) waives any objection to the laying of venue of any such proceeding in any such court. The Employee also\nirrevocably and unconditionally consents to the service of any process, pleadings, notices or other papers.\n3. Miscellaneous.\n(a) Governing Law. The rights of the Company under this Agreement are in addition to, not in lieu of, the rights afforded to it by law, which\nshall in no way be affected hereby. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of\nPennsylvania without giving effect to the conflicts of laws provisions thereof.\n(b) Binding Agreement; Assignment. This Agreement shall inure to the benefit of and becoming binding upon the Company, its successors and\nassigns, and Employees, his or her heirs, executors, administrators and legal representatives; provided, however, that the obligations of Employee\nhereunder may not be delegated.\n(c) Amendment Headings. This Agreement represents the entire agreement of the parties with respect to the subject matter hereof and may not\nbe changed or terminated orally. The descriptive headings of the several sections of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement.\n(d) Waiver. No waiver by any party of any breach of any term hereof shall be construed as a waiver of any subsequent breach of that term or\nany other term of the same or of a different nature.\n(e) Notices. Any notices of other communications given pursuant to this Agreement shall be in writing and shall be deemed given when\ndelivered or mailed in any general or branch office of the United States Postal Service by registered or certified mail, return receipt requested, to the\nparties’ respective addresses set forth in this Agreement. Either party to this Agreement may change the aforesaid address by notice to the other party\nhereto given in the manner prescribed in this paragraph; provided, however, that notice of change of address will be effective only upon receipt.\n3\n(f) Severability. If any court of competent jurisdiction determines that it is not possible to construe any provision of this Agreement\nconsistently with a law or public policy, and consequently holds that said provision is invalid, such holding shall in no way affect the validity of the\nother provisions of this Agreement.\n(g) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be original and all of which taken together\nshall constitute one and the same instrument.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written.\nORTHOVITA INC.\nBy: /s/ Antony Koblish\n/s/ Maarten Persenaire, M.D .\nPresident & CEO\nAddress:\n4
+cb5b1968caa6b9a951412311bca77a9f.pdf	effective_date jurisdiction party term	EX-10.35 4 a2206536zex-10_35.htm EX-10.35\nExhibit 10.35\nEMPLOYEE NON-DISCLOSURE, NON-COMPETITION & INVENTIONS AGREEMENT\nThis Agreement made and entered into in Cambridge, Massachusetts, by Jeffrey M. Leiden, M.D., Ph.D . (the “Executive”) and Vertex\nPharmaceuticals Incorporated (the “Company”), effective as of the Executive’s first day of employment with the Company, on the 14 day of\nDecember, 2011.\nWHEREAS, the Employee acknowledges the importance to Vertex Pharmaceuticals Incorporated (the “Company”) and its Affiliates (as\nhereafter defined) of protecting the valuable Confidential Information (as hereafter defined) and goodwill that they have developed or acquired\nand their other legitimate interests.\nNOW, THEREFORE, in consideration of his initial employment with the Company and in consideration of his being granted access to\ntrade secrets and other confidential information of the Company and its Affiliates and for other good and valuable consideration, the receipt and\nsufficiency of which he hereby acknowledges, the Executive hereby agrees with the Company as follows:\n1.\nConfidentiality. The Executive acknowledges that the Company and its Affiliates continually develop Confidential\nInformation; that the Executive may develop Confidential Information for the Company and its Affiliates; and that the Executive has learned and\nwill continue to learn of Confidential Information while serving as a member of the board of directors of the Company (the “Board”) and will\nlearn of Confidential Information hereafter during the course of employment with the Company. The Executive shall comply with the policies\nand procedures of the Company for protecting Confidential Information and shall not disclose to any Person (as hereafter defined) or use, other\nthan as required for the proper performance of his duties and responsibilities to the Company and its Affiliates, or as required by applicable law\nafter notice to the Company and a reasonable opportunity for the Company to seek protection of the Confidential Information prior to disclosure,\nany Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its\nAffiliates. The Executive understands and agrees that these restrictions shall continue to apply after his employment with the Company\nterminates, regardless of the reason for such termination. The confidentiality obligation under this Section 1 shall not apply to information that is\ngenerally known or readily available to the public at the time of disclosure to the Executive or that becomes generally known or readily available\nto the public thereafter through no wrongful act on the part of the Executive or any other Person having an obligation of confidentiality to the\nCompany or any of its Affiliates.\n2.\nReturn of Company Property. All documents, records, tapes and other media of every kind and description relating to the\nbusiness, present or otherwise, of the Company or any of its Affiliates and any copies, in whole or in part, thereof (the “Documents”), whether or\nnot prepared by the Executive, shall be the sole and exclusive property of the Company and its Affiliates. The Executive shall safeguard all\nDocuments and shall surrender to the Company at\nthe time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents and all other\nproperty of the Company and its Affiliates then in the Executive’s possession or control.\n3.\nAssignment of Rights to Intellectual Property. The Executive shall promptly and fully disclose to the Company all\nIntellectual Property (as defined in Section 8 hereof). The Executive hereby assigns and agrees to assign to the Company (or as otherwise\ndirected by the Company) the Executive’s full right, title and interest in and to all Intellectual Property. The Executive agrees to execute any and\nall applications for domestic and foreign patents, copyrights or other proprietary rights and to do such other acts (including without limitation the\nexecution and delivery of instruments of further assurance or confirmation) requested by the Company to assign the Intellectual Property to the\nCompany and to permit the Company to enforce any patents, copyrights or other proprietary rights to the Intellectual Property. The Executive\nwill not charge the Company for time spent in complying with these obligations. All copyrightable works that the Executive creates shall be\nconsidered “work made for hire” and shall, upon creation, be owned exclusively by the Company.\n4.\nRestricted Activities. The Executive agrees that the following restrictions on his activities during and after his employment\nare necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Affiliates:\n(a)\nWhile the Executive is employed by the Company and for eighteen (18) months after his employment terminates,\nregardless of the basis of such termination, except as otherwise provided in Section 6(c) of the Executive’s employment agreement with the\nCompany of even date herewith, the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee,\nco-venturer or otherwise, (i) compete with the Company or any of its Immediate Affiliates (as defined in Section 8 hereof) within the United\nStates or in any other country in which the Company or any of its Immediate Affiliates markets, or is in active planning to market, any of the\nProducts or otherwise conducts or is in active planning to conduct business; (ii) undertake any planning for any business competitive with the\nProducts of the Company or any of its Immediate Affiliates; or (iii) compete, or undertake any planning to compete with, the Exclusive Licensees\n(as also defined in Section 8) with respect to those Products as to which the Exclusive Licensees are licensed by the Company or any of its\nImmediate Affiliates in those geographic areas covered by those licenses. Specifically, but without limiting the foregoing, the Executive agrees\nnot to engage in any manner in any activity that is directly or indirectly competitive or potentially competitive with the Products or with any of\nthe other business activities of the Company or any of its Immediate Affiliates conducted or under consideration at any time during the\nExecutive’s employment or his service on the Board and further agrees not to work or provide services, in any capacity, whether as an employee,\nindependent contractor or otherwise, whether with or without compensation, for or to any Person who is engaged in any business that is\ncompetitive with the business of the Company or any of its Immediate Affiliates or any of the Exclusive Licensees (with respect to the Products\nlicensed), as conducted or in planning during the Executive’s employment. For the purposes of this Section 4, the business of the Company and\nth\nits Immediate Affiliates and the Exclusive Licensees shall include all Products and the Executive’s undertaking shall encompass all items,\nproducts and services that may be used in substitution for Products. The foregoing, however, shall not prevent the Executive’s passive ownership\nof two percent (2%) or less of the equity\n2\nsecurities of any publicly traded company; nor in any way limit him in the performance of his duties as a member of the boards of directors of\ncompanies previously disclosed to the Company or otherwise approved by the Board of Directors of the Company.\n(b)\nThe Executive agrees that, during his employment with the Company, he will not undertake any outside activity,\nwhether or not competitive with the business of the Company or any of its Immediate Affiliates, that could reasonably give rise to a conflict of\ninterest or otherwise interfere with any of his duties, responsibilities or obligations to the Company or any of its Immediate Affiliates.\n(c)\nThe Executive agrees that, during his employment with the Company and during the eighteen (18) months\nimmediately following termination of his employment, regardless of the basis of such termination, the Executive will not directly or indirectly\n(a) solicit or encourage any customer or prospective customer of the Company or any of its Immediate Affiliates or any of their Exclusive\nLicensees to terminate or diminish its relationship with the Company or any of its Immediate Affiliates; (b) seek to persuade any such customer\nor prospective customer of the Company or any of its Immediate Affiliates or any Exclusive Licensee to conduct with the Executive or any other\nPerson any business or activity that such customer, prospective customer or Exclusive Licensee conducts or could conduct with the Company or\nany of its Immediate Affiliates or (c) solicit or encourage any customer or prospective customer of any of the Exclusive Licensees for any of the\nProducts to terminate or diminish such business with the Exclusive Licensees or to conduct such business with the Executive or any other\nPerson; provided that these restrictions shall apply after termination of the Executive’s employment with the Company (y) only with respect to\nthose Persons who are or have been Exclusive Licensees or who are or have been a customer or potential customer of the Company or any of its\nImmediate Affiliates or the Exclusive Licensees at any time within the twelve (12) month period immediately preceding the Date of Termination\nor whose business has been solicited on behalf of the Company or any of its Immediate Affiliates or any of the Exclusive Licensees by any of\ntheir employees or agents within said twelve (12) month period, other than by form letter, blanket mailing or published advertisement, and\n(z) only if the Executive has been introduced to, or otherwise had contact with, such Person as a result of his employment or other associations\nwith the Company or one of its Immediate Affiliates or one of their Exclusive Licensees or has had access to Confidential Information that would\nassist in the Executive’s solicitation of such Person in competition with the Company or one of its Immediate Affiliates or one of the Exclusive\nLicensees.\n(d)\nThe Executive agrees that during his employment (except in the course of his duties on behalf of the Company or any\nof its Immediate Affiliates) and during the eighteen (18) month period immediately following termination of his employment, regardless of the\nbasis for such termination, the Executive will not, and will not assist any other Person to, (a) hire or solicit for hiring any employee of the\nCompany or any of its Immediate Affiliates or any of the Exclusive Licensees or seek to persuade any employee of the Company or any of its\nImmediate Affiliates or any of the Exclusive Licensees to discontinue employment or (b) solicit or encourage any independent contractor\nproviding services to the Company or any of its Immediate Affiliates or any of the Exclusive Licensees to terminate or diminish its relationship\nwith them. For the purposes of the Executive’s obligations hereunder following termination of his employment with the Company, an\n“employee” of the Company or any of its Immediate\n3\nAffiliates or any of the Exclusive Licensees or an “independent contractor” providing services to the Company or any of its Immediate Affiliates\nor any of the Exclusive Licensees is any Person who was such at any time during the twelve (12) months preceding the Date of Termination.\n5.\nNotification Requirement. During the eighteen (18) months immediately following the Date of Termination, the Executive\nshall give notice to the Company prior to beginning employment or a consulting position stating the name and address of the Person for whom\nsuch employment or consulting is undertaken and the nature of the Executive’s position with such Person. The Executive agrees to also provide\nthe Company with such other pertinent information as the Company may reasonably request in order to determine the Executive’s continued\ncompliance with his surviving obligations under Sections 1, 3 and 4 hereof.\n6.\nEnforcement of Covenants. The Executive acknowledges that he has carefully read and considered all the terms and\nconditions of this Agreement, including the restraints imposed on him pursuant to Sections 1, 3 and 4 hereof. The Executive agrees without\nreservation that each of the restraints contained herein is necessary for the reasonable and proper protection of the goodwill, Confidential\nInformation and other legitimate interests of the Company and its Immediate Affiliates; that each and every one of those restraints is reasonable\nin respect to subject matter, length of time and geographic area; and that these restraints, individually or in the aggregate, will not prevent him\nfrom obtaining other suitable employment during the period in which the Executive is bound by these restraints. The Executive further agrees\nthat he will not assert, or permit to be asserted on his behalf, in any forum, any position contrary to the foregoing. The Executive further\nacknowledges that, were he to breach any of the covenants contained in Section 1, 3 or 4 hereof, the damage to the Company would be\nirreparable. The Executive therefore agrees that the Company, in addition to any other remedies available to it, shall be entitled to preliminary\nand permanent injunctive relief against any breach or threatened breach by the Executive of any of said covenants, without having to post bond.\nThe parties further agree that, in the event that any provision of Section 1, 3 or 4 hereof shall be determined by any court of competent\njurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of\nactivities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.\n7.\nConflicting Agreements. The Executive hereby represents and warrants that the execution of this Agreement and the\nperformance of his obligations hereunder will not breach or be in conflict with any other agreement to which the Executive is a party or is bound\nand that the Executive is not now subject to any covenants against competition or similar covenants or any court order or other legal obligation\nthat would affect the performance of his obligations hereunder. The Executive agrees not to disclose to or use on behalf of the Company or any\nof its Affiliates any proprietary information of a prior employer or other Person without such Person’s consent.\n8.\nDefinitions. Words or phrases which are initially capitalized or are within quotation marks shall have the meanings provided\nin this Section and as provided elsewhere herein. For purposes of this Agreement, the following definitions apply:\n4\n(a)\n“Affiliates” means all persons and entities directly or indirectly controlling, controlled by or under common control\nwith the Company, where control may be by management authority, contract or equity interest.\n(b)\n“Confidential Information” means any and all information of the Company and its Affiliates that is not generally\nknown by Persons with whom the Company or any of its Affiliates competes or does business, or with whom the Company or any of its\nAffiliates plans to compete or do business and any and all information, publicly known in whole or in part or not, that, if disclosed by the\nCompany or any of its Affiliates, would assist in competition against them. Confidential Information includes without limitation such\ninformation relating to (i) the development, research, testing, manufacturing, marketing and financial activities of the Company and its Affiliates,\n(ii) the Products, (iii) the costs, sources of supply, financial performance and strategic plans of the Company and its Affiliates, (iv) the identity\nand special needs of the customers of the Company and its Affiliates and (v) the people and organizations with whom the Company and its\nAffiliates have business relationships and the nature and substance of those relationships. Confidential Information also includes any and all\ninformation received by the Company or any of its Affiliates belonging to any customer or other Person with any understanding, express or\nimplied, that the information would not be disclosed.\n(c)\n“Date of Termination” means the date the Executive’s employment with the Company terminates, regardless of the\nreason for such termination, and, for the avoidance of doubt, whether occurring pursuant to the employment agreement between the Company\nand the Executive of even date herewith or otherwise.\n(d)\n“Exclusive Licensees” means those Persons licensed by the Company and/or by one or more of its Immediate\nAffiliates to distribute in specific geographic areas one or more of the Products.\n(e)\n“Immediate Affiliates” means the Company’s direct and indirect subsidiaries, the Company’s direct and indirect\nparents and their direct and indirect subsidiaries.\n(f)\n“Intellectual Property” means inventions, discoveries, developments, methods, processes, compositions, works,\nconcepts and ideas (whether or not patentable or copyrightable or registrable under any comparable law or constituting trade secrets) conceived,\nmade, created, developed or reduced to practice by the Executive (whether alone or with others, whether or not during normal business hours or\non or off Company premises) during the Executive’s service on the Board or his employment with the Company or any of its Immediate\nAffiliates or that relate to the Products or to any prospective activity of the Company or any of its Immediate Affiliates or to any work performed\nby the Executive for the Company or any of its Immediate Affiliates or that make use of Confidential Information or any of the equipment or\nfacilities of the Company or any of its Immediate Affiliates.\n(g)\n“Person” means an individual, a corporation, a limited liability company, an association, a partnership, an estate, a\ntrust and any other entity or organization, other than the Company or any of its Affiliates.\n5\n(h)\n“Products” mean all products planned, researched, developed, tested, manufactured, sold, licensed, leased or\notherwise distributed or put into use by the Company or any of its Immediate Affiliates, together with all services provided or planned by the\nCompany or any of its Immediate Affiliates, during the Executive’s employment or during the period of his service on the Board that preceded\nthe Commencement Date.\n9.\nAssignment. Neither the Company nor the Executive may make any assignment of this Agreement or any interest in it, by\noperation of law or otherwise, without the prior written consent of the other; provided, however, that the Company may assign its rights and\nobligations under this Agreement without the Executive’s consent in the event that the Company shall hereafter affect a reorganization,\nconsolidate with, or merge into any Person or transfer to any Person all or substantially all of the business, properties or assets of the Company.\nThis Agreement shall inure to the benefit of and be binding upon the Executive and the Company, and each of their respective successors,\nexecutors, administrators, heirs, representatives and permitted assigns. The Executive also agree that each of the Company’s Affiliates shall have\nthe right to enforce all of his obligations to that Affiliate under this Agreement. The Executive hereby expressly consents to be bound by the\nprovisions of this Agreement for the benefit of the Company and of any successor or permitted assign to whose employ the Executive may be\ntransferred, without the necessity that this Agreement be re-signed at the time of such transfer.\n10.\nSeverability. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court\nof competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those\nas to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be\nvalid and enforceable to the fullest extent permitted by law.\n11.\nNotices. Any and all notices, requests, demands and other communications provided for by this Agreement shall be in writing\nand shall be effective when delivered in person, consigned to a reputable national courier service or deposited in the United States mail, postage\nprepaid, and addressed to the Executive at his last known address on the books of the Company or, in the case of the Company, at its principal\nplace of business in Cambridge, Massachusetts, attention of the Senior Vice President of Human Resources with a copy to the Office of the\nGeneral Counsel of the Company, or to such other address as either party may specify by notice to the other actually received.\n12.\nNot a Contract for a Fixed Term. The Executive acknowledges and agrees that this Agreement does not in any way obligate\nthe Company to retain his services for a fixed period or at a fixed level of compensation; nor does it in any way restrict his right or that of the\nCompany to terminate his employment at any time, with or without notice or cause.\n13.\nEntire Agreement; Amendments; Waivers; Survival. This Agreement sets forth the entire agreement between the Executive\nand the Company and supersedes all prior and contemporaneous communications, agreements and understandings, written or oral, with respect to\nthe subject matter hereof; provided, however, that this Agreement shall not terminate or supersede the employment agreement between the\nExecutive and the Company of even date herewith; nor shall it supersede any confidentiality or other obligations the Executive may have\n6\nin connection with his service on the Board. This Agreement may not be modified or amended, and no breach shall be deemed to be waived,\nunless agreed to in writing by the Executive and an expressly authorized member of the Board. If any provision of this Agreement should, for\nany reason, be held invalid or unenforceable in any respect, it shall not affect any other provisions, and shall be construed by limiting it so as to\nbe enforceable to the maximum extent permissible by law. Provisions of this Agreement shall survive any termination of the Executive’s\nemployment to the extent so provided in this Agreement or if necessary or desirable to accomplish the purpose of other surviving provisions.\n14.\nHeadings and Counterparts. The headings and captions in this Agreement are for convenience only and in no way define or\ndescribe the scope or content of any provision of this Agreement. This Agreement may be executed in two or more counterparts, each of which\nshall be an original and all of which together shall constitute one and the same instrument.\n15.\nGoverning Law. This is a Massachusetts contract and shall be construed and enforced under and be governed in all respects by\nthe laws of The Commonwealth of Massachusetts, without regard to the conflict of laws principles thereof.\n16.\nExecutive’s Representations. In signing this Agreement, the Executive represents and warrants to the Company that he has\nread and understood all of its terms; that he has had a full and reasonable opportunity to consider its terms and to consult with an attorney and\nany person of his choosing before signing, if he wished to do so; that he has not relied on any agreements or representations, express or implied,\nconcerning the subject matter hereof that are not set forth expressly in this Agreement; and that he has signed this Agreement knowingly and\nvoluntarily.\nIntending to be legally bound hereby, the Executive has signed this Agreement under seal to take effect as of the date first written above.\nTHE EXECUTIVE:\nSignature: /s/ Jeffrey M. Leiden\nJeffrey M. Leiden, M.D., Ph.D.\nAccepted and Agreed:\nVERTEX PHARMACEUTICALS INCORPORATED\nBy: /s/ Matthew W. Emmens\nMatthew W. Emmens\nPresident, Chairman and CEO\n7	EX-10.35 4 a2206536zex-10_35.htm EX-10.35\nExhibit 10.35\nEMPLOYEE NON-DISCLOSURE, NON-COMPETITION & INVENTIONS AGREEMENT\nThis Agreement made and entered into in Cambridge, Massachusetts, by Jeffrey M. Leiden, M.D., Ph.D. (the “Executive”) and Vertex\nPharmaceuticals Incorporated (the “Company™), effective as of the Executive’s first day of employment with the Company, on the 14" day of\nDecember, 2011.\nWHEREAS, the Employee acknowledges the importance to Vertex Pharmaceuticals Incorporated (the “Company”) and its Affiliates (as\nhereafter defined) of protecting the valuable Confidential Information (as hereafter defined) and goodwill that they have developed or acquired\nand their other legitimate interests.\nNOW, THEREFORE, in consideration of his initial employment with the Company and in consideration of his being granted access to\ntrade secrets and other confidential information of the Company and its Affiliates and for other good and valuable consideration, the receipt and\nsufficiency of which he hereby acknowledges, the Executive hereby agrees with the Company as follows:\n1. Confidentiality. The Executive acknowledges that the Company and its Affiliates continually develop Confidential\nInformation; that the Executive may develop Confidential Information for the Company and its Affiliates; and that the Executive has learned and\nwill continue to learn of Confidential Information while serving as a member of the board of directors of the Company (the “Board”) and will\nlearn of Confidential Information hereafter during the course of employment with the Company. The Executive shall comply with the policies\nand procedures of the Company for protecting Confidential Information and shall not disclose to any Person (as hereafter defined) or use, other\nthan as required for the proper performance of his duties and responsibilities to the Company and its Affiliates, or as required by applicable law\nafter notice to the Company and a reasonable opportunity for the Company to seek protection of the Confidential Information prior to disclosure,\nany Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its\nAffiliates. The Executive understands and agrees that these restrictions shall continue to apply after his employment with the Company\nterminates, regardless of the reason for such termination. The confidentiality obligation under this Section 1 shall not apply to information that is\ngenerally known or readily available to the public at the time of disclosure to the Executive or that becomes generally known or readily available\nto the public thereafter through no wrongful act on the part of the Executive or any other Person having an obligation of confidentiality to the\nCompany or any of its Affiliates.\n2. Return of Company Property. All documents, records, tapes and other media of every kind and description relating to the\nbusiness, present or otherwise, of the Company or any of its Affiliates and any copies, in whole or in part, thereof (the “Documents”), whether or\nnot prepared by the Executive, shall be the sole and exclusive property of the Company and its Affiliates. The Executive shall safeguard all\nDocuments and shall surrender to the Company at\n \nthe time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents and all other\nproperty of the Company and its Affiliates then in the Executive’s possession or control.\n3. Assignment of Rights to Intellectual Property. The Executive shall promptly and fully disclose to the Company all\nIntellectual Property (as defined in Section 8 hereof). The Executive hereby assigns and agrees to assign to the Company (or as otherwise\ndirected by the Company) the Executive’s full right, title and interest in and to all Intellectual Property. The Executive agrees to execute any and\nall applications for domestic and foreign patents, copyrights or other proprietary rights and to do such other acts (including without limitation the\nexecution and delivery of instruments of further assurance or confirmation) requested by the Company to assign the Intellectual Property to the\nCompany and to permit the Company to enforce any patents, copyrights or other proprietary rights to the Intellectual Property. The Executive\nwill not charge the Company for time spent in complying with these obligations. All copyrightable works that the Executive creates shall be\nconsidered “work made for hire” and shall, upon creation, be owned exclusively by the Company.\n4. Restricted Activities. The Executive agrees that the following restrictions on his activities during and after his employment\nare necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Affiliates:\n(a) While the Executive is employed by the Company and for eighteen (18) months after his employment terminates,\nregardless of the basis of such termination, except as otherwise provided in Section 6(c) of the Executive’s employment agreement with the\nCompany of even date herewith, the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee,\nco-venturer or otherwise, (i) compete with the Company or any of its Immediate Affiliates (as defined in Section 8 hereof) within the United\nStates or in any other country in which the Company or any of its Immediate Affiliates markets, or is in active planning to market, any of the\nProducts or otherwise conducts or is in active planning to conduct business; (ii) undertake any planning for any business competitive with the\nProducts of the Company or any of its Immediate Affiliates; or (iii) compete, or undertake any planning to compete with, the Exclusive Licensees\n(as also defined in Section 8) with respect to those Products as to which the Exclusive Licensees are licensed by the Company or any of its\nImmediate Affiliates in those geographic areas covered by those licenses. Specifically, but without limiting the foregoing, the Executive agrees\nnot to engage in any manner in any activity that is directly or indirectly competitive or potentially competitive with the Products or with any of\nthe other business activities of the Company or any of its Immediate Affiliates conducted or under consideration at any time during the\nExecutive’s employment or his service on the Board and further agrees not to work or provide services, in any capacity, whether as an employee,\nindependent contractor or otherwise, whether with or without compensation, for or to any Person who is engaged in any business that is\ncompetitive with the business of the Company or any of its Immediate Affiliates or any of the Exclusive Licensees (with respect to the Products\nlicensed), as conducted or in planning during the Executive’s employment. For the purposes of this Section 4, the business of the Company and\nits Immediate Affiliates and the Exclusive Licensees shall include all Products and the Executive’s undertaking shall encompass all items,\nproducts and services that may be used in substitution for Products. The foregoing, however, shall not prevent the Executive’s passive ownership\nof two percent (2%) or less of the equity\n \nsecurities of any publicly traded company; nor in any way limit him in the performance of his duties as a member of the boards of directors of\ncompanies previously disclosed to the Company or otherwise approved by the Board of Directors of the Company.\n(b) The Executive agrees that, during his employment with the Company, he will not undertake any outside activity,\nwhether or not competitive with the business of the Company or any of its Immediate Affiliates, that could reasonably give rise to a conflict of\ninterest or otherwise interfere with any of his duties, responsibilities or obligations to the Company or any of its Immediate Affiliates.\n(0 The Executive agrees that, during his employment with the Company and during the eighteen (18) months\nimmediately following termination of his employment, regardless of the basis of such termination, the Executive will not directly or indirectly\n(a) solicit or encourage any customer or prospective customer of the Company or any of its Immediate Affiliates or any of their Exclusive\nLicensees to terminate or diminish its relationship with the Company or any of its Immediate Affiliates; (b) seek to persuade any such customer\nor prospective customer of the Company or any of its Immediate Affiliates or any Exclusive Licensee to conduct with the Executive or any other\nPerson any business or activity that such customer, prospective customer or Exclusive Licensee conducts or could conduct with the Company or\nany of its Immediate Affiliates or (c) solicit or encourage any customer or prospective customer of any of the Exclusive Licensees for any of the\nProducts to terminate or diminish such business with the Exclusive Licensees or to conduct such business with the Executive or any other\nPerson; provided that these restrictions shall apply after termination of the Executive’s employment with the Company (y) only with respect to\nthose Persons who are or have been Exclusive Licensees or who are or have been a customer or potential customer of the Company or any of its\nImmediate Affiliates or the Exclusive Licensees at any time within the twelve (12) month period immediately preceding the Date of Termination\nor whose business has been solicited on behalf of the Company or any of its Immediate Affiliates or any of the Exclusive Licensees by any of\ntheir employees or agents within said twelve (12) month period, other than by form letter, blanket mailing or published advertisement, and\n(z) only if the Executive has been introduced to, or otherwise had contact with, such Person as a result of his employment or other associations\nwith the Company or one of its Immediate Affiliates or one of their Exclusive Licensees or has had access to Confidential Information that would\nassist in the Executive’s solicitation of such Person in competition with the Company or one of its Immediate Affiliates or one of the Exclusive\nLicensees.\n(d) The Executive agrees that during his employment (except in the course of his duties on behalf of the Company or any\nof its Immediate Affiliates) and during the eighteen (18) month period immediately following termination of his employment, regardless of the\nbasis for such termination, the Executive will not, and will not assist any other Person to, (a) hire or solicit for hiring any employee of the\nCompany or any of its Immediate Affiliates or any of the Exclusive Licensees or seek to persuade any employee of the Company or any of its\nImmediate Affiliates or any of the Exclusive Licensees to discontinue employment or (b) solicit or encourage any independent contractor\nproviding services to the Company or any of its Immediate Affiliates or any of the Exclusive Licensees to terminate or diminish its relationship\nwith them. For the purposes of the Executive’s obligations hereunder following termination of his employment with the Company, an\n“employee” of the Company or any of its Immediate\n \nAffiliates or any of the Exclusive Licensees or an “independent contractor” providing services to the Company or any of its Inmediate Affiliates\nor any of the Exclusive Licensees is any Person who was such at any time during the twelve (12) months preceding the Date of Termination.\n5. Notification Requirement. During the eighteen (18) months immediately following the Date of Termination, the Executive\nshall give notice to the Company prior to beginning employment or a consulting position stating the name and address of the Person for whom\nsuch employment or consulting is undertaken and the nature of the Executive’s position with such Person. The Executive agrees to also provide\nthe Company with such other pertinent information as the Company may reasonably request in order to determine the Executive’s continued\ncompliance with his surviving obligations under Sections 1, 3 and 4 hereof.\n6. Enforcement of Covenants. The Executive acknowledges that he has carefully read and considered all the terms and\nconditions of this Agreement, including the restraints imposed on him pursuant to Sections 1, 3 and 4 hereof. The Executive agrees without\nreservation that each of the restraints contained herein is necessary for the reasonable and proper protection of the goodwill, Confidential\nInformation and other legitimate interests of the Company and its Immediate Affiliates; that each and every one of those restraints is reasonable\nin respect to subject matter, length of time and geographic area; and that these restraints, individually or in the aggregate, will not prevent him\nfrom obtaining other suitable employment during the period in which the Executive is bound by these restraints. The Executive further agrees\nthat he will not assert, or permit to be asserted on his behalf, in any forum, any position contrary to the foregoing. The Executive further\nacknowledges that, were he to breach any of the covenants contained in Section 1, 3 or 4 hereof, the damage to the Company would be\nirreparable. The Executive therefore agrees that the Company, in addition to any other remedies available to it, shall be entitled to preliminary\nand permanent injunctive relief against any breach or threatened breach by the Executive of any of said covenants, without having to post bond.\nThe parties further agree that, in the event that any provision of Section 1, 3 or 4 hereof shall be determined by any court of competent\njurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of\nactivities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.\n7. Conflicting Agreements. The Executive hereby represents and warrants that the execution of this Agreement and the\nperformance of his obligations hereunder will not breach or be in conflict with any other agreement to which the Executive is a party or is bound\nand that the Executive is not now subject to any covenants against competition or similar covenants or any court order or other legal obligation\nthat would affect the performance of his obligations hereunder. The Executive agrees not to disclose to or use on behalf of the Company or any\nof its Affiliates any proprietary information of a prior employer or other Person without such Person’s consent.\n8. Definitions. Words or phrases which are initially capitalized or are within quotation marks shall have the meanings provided\nin this Section and as provided elsewhere herein. For purposes of this Agreement, the following definitions apply:\n4\n \n(a) “Affiliates” means all persons and entities directly or indirectly controlling, controlled by or under common control\nwith the Company, where control may be by management authority, contract or equity interest.\n(b) “Confidential Information” means any and all information of the Company and its Affiliates that is not generally\nknown by Persons with whom the Company or any of its Affiliates competes or does business, or with whom the Company or any of its\nAffiliates plans to compete or do business and any and all information, publicly known in whole or in part or not, that, if disclosed by the\nCompany or any of its Affiliates, would assist in competition against them. Confidential Information includes without limitation such\ninformation relating to (i) the development, research, testing, manufacturing, marketing and financial activities of the Company and its Affiliates,\n(ii) the Products, (iii) the costs, sources of supply, financial performance and strategic plans of the Company and its Affiliates, (iv) the identity\nand special needs of the customers of the Company and its Affiliates and (v) the people and organizations with whom the Company and its\nAffiliates have business relationships and the nature and substance of those relationships. Confidential Information also includes any and all\ninformation received by the Company or any of its Affiliates belonging to any customer or other Person with any understanding, express or\nimplied, that the information would not be disclosed.\n(0 “Date of Termination” means the date the Executive’s employment with the Company terminates, regardless of the\nreason for such termination, and, for the avoidance of doubt, whether occurring pursuant to the employment agreement between the Company\nand the Executive of even date herewith or otherwise.\n(d) “Exclusive Licensees” means those Persons licensed by the Company and/or by one or more of its Immediate\nAffiliates to distribute in specific geographic areas one or more of the Products.\n(e) “Immediate Affiliates” means the Company’s direct and indirect subsidiaries, the Company’s direct and indirect\nparents and their direct and indirect subsidiaries.\n® “Intellectual Property” means inventions, discoveries, developments, methods, processes, compositions, works,\nconcepts and ideas (whether or not patentable or copyrightable or registrable under any comparable law or constituting trade secrets) conceived,\nmade, created, developed or reduced to practice by the Executive (whether alone or with others, whether or not during normal business hours or\non or off Company premises) during the Executive’s service on the Board or his employment with the Company or any of its Immediate\nAffiliates or that relate to the Products or to any prospective activity of the Company or any of its Immediate Affiliates or to any work performed\nby the Executive for the Company or any of its Immediate Affiliates or that make use of Confidential Information or any of the equipment or\nfacilities of the Company or any of its Immediate Affiliates.\n(8 “Person” means an individual, a corporation, a limited liability company, an association, a partnership, an estate, a\ntrust and any other entity or organization, other than the Company or any of its Affiliates.\n5\n \n(h) “Products” mean all products planned, researched, developed, tested, manufactured, sold, licensed, leased or\notherwise distributed or put into use by the Company or any of its Immediate Affiliates, together with all services provided or planned by the\nCompany or any of its Immediate Affiliates, during the Executive’s employment or during the period of his service on the Board that preceded\nthe Commencement Date.\n9. Assignment. Neither the Company nor the Executive may make any assignment of this Agreement or any interest in it, by\noperation of law or otherwise, without the prior written consent of the other; provided, however, that the Company may assign its rights and\nobligations under this Agreement without the Executive’s consent in the event that the Company shall hereafter affect a reorganization,\nconsolidate with, or merge into any Person or transfer to any Person all or substantially all of the business, properties or assets of the Company.\nThis Agreement shall inure to the benefit of and be binding upon the Executive and the Company, and each of their respective successors,\nexecutors, administrators, heirs, representatives and permitted assigns. The Executive also agree that each of the Company’s Affiliates shall have\nthe right to enforce all of his obligations to that Affiliate under this Agreement. The Executive hereby expressly consents to be bound by the\nprovisions of this Agreement for the benefit of the Company and of any successor or permitted assign to whose employ the Executive may be\ntransferred, without the necessity that this Agreement be re-signed at the time of such transfer.\n10. Severability. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court\nof competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those\nas to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be\nvalid and enforceable to the fullest extent permitted by law.\n11. Notices. Any and all notices, requests, demands and other communications provided for by this Agreement shall be in writing\nand shall be effective when delivered in person, consigned to a reputable national courier service or deposited in the United States mail, postage\nprepaid, and addressed to the Executive at his last known address on the books of the Company or, in the case of the Company, at its principal\nplace of business in Cambridge, Massachusetts, attention of the Senior Vice President of Human Resources with a copy to the Office of the\nGeneral Counsel of the Company, or to such other address as either party may specify by notice to the other actually received.\n12. Not a Contract for a Fixed Term. The Executive acknowledges and agrees that this Agreement does not in any way obligate\nthe Company to retain his services for a fixed period or at a fixed level of compensation; nor does it in any way restrict his right or that of the\nCompany to terminate his employment at any time, with or without notice or cause.\n13. Entire Agreement; Amendments; Waivers; Survival. This Agreement sets forth the entire agreement between the Executive\nand the Company and supersedes all prior and contemporaneous communications, agreements and understandings, written or oral, with respect to\nthe subject matter hereof; provided, however, that this Agreement shall not terminate or supersede the employment agreement between the\nExecutive and the Company of even date herewith; nor shall it supersede any confidentiality or other obligations the Executive may have\n6\n \nin connection with his service on the Board. This Agreement may not be modified or amended, and no breach shall be deemed to be waived,\nunless agreed to in writing by the Executive and an expressly authorized member of the Board. If any provision of this Agreement should, for\nany reason, be held invalid or unenforceable in any respect, it shall not affect any other provisions, and shall be construed by limiting it so as to\nbe enforceable to the maximum extent permissible by law. Provisions of this Agreement shall survive any termination of the Executive’s\nemployment to the extent so provided in this Agreement or if necessary or desirable to accomplish the purpose of other surviving provisions.\n14. Headings and Counterparts. The headings and captions in this Agreement are for convenience only and in no way define or\ndescribe the scope or content of any provision of this Agreement. This Agreement may be executed in two or more counterparts, each of which\nshall be an original and all of which together shall constitute one and the same instrument.\n15. Governing Law. This is a Massachusetts contract and shall be construed and enforced under and be governed in all respects by\nthe laws of The Commonwealth of Massachusetts, without regard to the conflict of laws principles thereof.\n16. Executive’s Representations. In signing this Agreement, the Executive represents and warrants to the Company that he has\nread and understood all of its terms; that he has had a full and reasonable opportunity to consider its terms and to consult with an attorney and\nany person of his choosing before signing, if he wished to do so; that he has not relied on any agreements or representations, express or implied,\nconcerning the subject matter hereof that are not set forth expressly in this Agreement; and that he has signed this Agreement knowingly and\nvoluntarily.\nIntending to be legally bound hereby, the Executive has signed this Agreement under seal to take effect as of the date first written above.\nTHE EXECUTIVE:\nSignature: /s/ Jeffrey M. Leiden\nJeffrey M. Leiden, M.D., Ph.D.\nAccepted and Agreed:\nVERTEX PHARMACEUTICALS INCORPORATED\nBy: /s/ Matthew W. Emmens\nMatthew W. Emmens\nPresident, Chairman and CEO\n	EX-10.35 4 a2206536zex-10_35.htm EX-10.35\nExhibit 10.35\nEMPLOYEE NON-DISCLOSURE NON-COMPETITION & INVENTIONS AGREEMENT\nThis Agreement made and entered into in Cambridge, Massachusetts, by Jeffrey M. Leiden, M.D., Ph.D. (the "Executive") and Vertex\nPharmaceuticals Incorporated (the "Company."), effective as of the Executive's first day of employment with the Company, on the 14th day of\nDecember, 2011.\nWHEREAS, the Employee acknowledges the importance to Vertex Pharmaceuticals Incorporated (the "Company.") and its Affiliates (as\nhereafter defined) of protecting the valuable Confidential Information (as hereafter defined) and goodwill that they have developed or acquired\nand their other legitimate interests.\nNOW, THEREFORE, in consideration of his initial employment with the Company and in consideration of his being granted access to\ntrade secrets and other confidential information of the Company and its Affiliates and for other good and valuable consideration, the receipt and\nsufficiency of which he hereby acknowledges, the Executive hereby agrees with the Company as follows:\n1.\nConfidentiality. The Executive acknowledges that the Company and its Affiliates continually develop Confidential\nInformation; that the Executive may develop Confidential Information for the Company and its Affiliates; and that the Executive has learned and\nwill\ncontinue to learn of Confidentia Information while serving as a member of the board of directors of the Company (the "Board") and will\nlearn of Confidential Information hereafter during the course of employment with the Company. The Executive shall comply with the policies\nand procedures of the Company for protecting Confidential Information and shall not disclose to any Person (as hereafter defined) or use, other\nthan\nas\nrequired for the proper performance of his duties and responsibilities to the Company and its Affiliates, or as required by applicable\nlaw\nafter notice to the Company and a reasonable opportunity for the Company to seek protection of the Confidential Information prior to disclosure,\nany Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its\nAffiliates. The Executive understands and agrees that these restrictions shall continue to apply after his employment with the Company\nterminates, regardless of the reason for such termination. The confidentiality obligation under this Section 1 shall not apply to information that is\ngenerally known or readily available to the public at the time of disclosure to the Executive or that becomes generally known or readily available\nto the public thereafter through no wrongful act on the part of the Executive or any other Person having an obligation of confidentiality to the\nCompany or any of its Affiliates.\n2.\nReturn of Company Property.. All documents, records, tapes and other media of every kind and description relating to the\nbusiness, present or otherwise, of the Company or any of its Affiliates and any copies, in whole or in part, thereof (the "Documents"), whether or\nnot prepared by the Executive, shall be the sole and exclusive property of the Company and its Affiliates. The Executive shall safeguard all\nDocuments and shall surrender to the Company at\nthe time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents and all other\nproperty of the Company and its Affiliates then in the Executive's possession or control.\n3.\nAssignment of Rights to Intellectual Property.. The Executive shall promptly and fully disclose to the Company all\nIntellectual Property (as defined in Section 8 hereof). The Executive hereby assigns and agrees to assign to the Company (or as otherwise\ndirected by the Company) the Executive's full right, title and interest in and to all Intellectual Property. The Executive agrees to execute any\nand\nall\napplications\nfor\ndomestic\nand\nforeign\npatents,\ncopyrights\nor\nother\nproprietary\nrights\nand\nto\ndo\nsuch\nother\nacts\n(including\nwithout\nlimitation\nthe\nexecution and delivery of instruments of further assurance or confirmation) requested by the Company to assign the Intellectual Property to the\nCompany and to permit the Company to enforce any patents, copyrights or other proprietary rights to the Intellectual Property. The Executive\nwill not charge the Company for time spent in complying with these obligations. All copyrightable works that the Executive creates shall be\nconsidered "work made for hire" and shall, upon creation, be owned exclusively by the Company.\n4.\nRestricted Activities. The Executive agrees that the following restrictions on his activities during and after his employment\nare necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Affiliates:\n(a)\nWhile the Executive is employed by the Company and for eighteen (18) months after his employment terminates,\nregardless of the basis of such termination, except as otherwise provided in Section 6(c) of the Executive's employment agreement with the\nCompany of even date herewith, the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee,\nco-venturer or otherwise, (i) compete with the Company or any of its Immediate Affiliates (as defined in Section 8 hereof) within the United\nStates or in any other country in which the Company or any of its Immediate Affiliates markets, or is in active planning to market, any of the\nProducts or otherwise conducts or is in active planning to conduct business; (ii) undertake any planning for any business competitive with the\nProducts of the Company or any of its Immediate Affiliates; or (iii) compete, or undertake any planning to compete with, the Exclusive Licensees\n(as also defined in Section 8) with respect to those Products as to which the Exclusive Licensees are licensed by the Company or any of its\nImmediate Affiliates in those geographic areas covered by those licenses. Specifically, but without limiting the foregoing, the Executive agrees\nnot to engage in any manner in any activity that is directly or indirectly competitive or potentially competitive with the Products or with any\nof\nthe other business activities of the Company or any of its Immediate Affiliates conducted or under consideration at any time during the\nExecutive's employment or his service on the Board and further agrees not to work or provide services, in any capacity, whether as an employee,\nindependent contractor or otherwise, whether with or without compensation, for or to any Person who is engaged in any business that is\ncompetitive with the business of the Company or any of its Immediate Affiliates or any of the Exclusive Licensees (with respect to the Products\nlicensed), as conducted or in planning during the Executive's employment. For the purposes of this Section 4, the business of the Company\nand\nits Immediate Affiliates and the Exclusive Licensees shall include all Products and the Executive's undertaking shall encompass all items,\nproducts and services that may be used in substitution for Products. The foregoing, however, shall not prevent the Executive's passive ownership\nof two percent (2%) or less of the equity\n2\nsecurities of any publicly traded company; nor in any way limit him in the performance of his duties as a member of the boards of directors of\ncompanies previously disclosed to the Company or otherwise approved by the Board of Directors of the Company.\n(b)\nThe Executive agrees that, during his employment with the Company, he will not undertake any outside activity,\nwhether or not competitive with the business of the Company or any of its Immediate Affiliates, that could reasonably give rise to a conflict of\ninterest or otherwise interfere with any of his duties, responsibilities or obligations to the Company or any of its Immediate Affiliates.\n(c)\nThe Executive agrees that, during his employment with the Company and during the eighteen (18) months\nimmediately following termination of his employment, regardless of the basis of such termination, the Executive will not directly or indirectly\n(a) solicit or encourage any customer or prospective customer of the Company or any of its Immediate Affiliates or any of their Exclusive\nLicensees to terminate or diminish its relationship with the Company or any of its Immediate Affiliates; (b) seek to persuade any such customer\nor prospective customer of the Company or any of its Immediate Affiliates or any Exclusive Licensee to conduct with the Executive or any other\nPerson any business or activity that such customer, prospective customer or Exclusive Licensee conducts or could conduct with the Company or\nany of its Immediate Affiliates or (c) solicit or encourage any customer or prospective customer of any of the Exclusive Licensees for any of the\nProducts to terminate or diminish such business with the Exclusive Licensees or to conduct such business with the Executive or any other\nPerson; provided that these restrictions shall apply after termination of the Executive's employment with the Company (y) only with respect\nto\nthose Persons who are or have been Exclusive Licensees or who are or have been a customer or potential customer of the Company or any of its\nImmediate Affiliates or the Exclusive Licensees at any time within the twelve (12) month period immediately preceding the Date of Termination\nor whose business has been solicited on behalf of the Company or any of its Immediate Affiliates or any of the Exclusive Licensees by any of\ntheir employees or agents within said twelve (12) month period, other than by form letter, blanket mailing or published advertisement, and\n(z)\nonly\nif the Executive has been introduced to, or otherwise had contact with, such Person as a result of his employment or other associations\nwith the Company or one of its Immediate Affiliates or one of their Exclusive Licensees or has had access to Confidential Information that would\nassist in the Executive's solicitation of such Person in competition with the Company or one of its Immediate Affiliates or one of the Exclusive\nLicensees.\n(d)\nThe Executive agrees that during his employment (except in the course of his duties on behalf of the Company\nor\nany\nof\nits\nImmediate\nAffiliates)\nand\nduring\nthe\neighteen\n(18)\nmonth\nperiod\nimmediately\nfollowing\ntermination\nof\nhis\nemployment,\nregardless\nof\nthe\nbasis for such termination, the Executive will not, and will not assist any other Person to, (a) hire or solicit for hiring any employee of the\nCompany or any of its Immediate Affiliates or any of the Exclusive Licensees or seek to persuade any employee of the Company or any of its\nImmediate Affiliates or any of the Exclusive Licensees to discontinue employment or (b) solicit or encourage any independent contractor\nproviding services to the Company or any of its Immediate Affiliates or any of the Exclusive Licensees to terminate or diminish its relationship\nwith them. For the purposes of the Executive's obligations hereunder following termination of his employment with the Company, an\n"employee" of the Company or any of its Immediate\n3\nAffiliates or any of the Exclusive Licensees or an "independent contractor" providing services to the Company or any of its Immediate Affiliates\nor any of the Exclusive Licensees is any Person who was such at any time during the twelve (12) months preceding the Date of Termination.\n5.\nNotification Requirement. During the eighteen (18) months immediately following the Date of Termination, the Executive\nshall give notice to the Company prior to beginning employment or a consulting position stating the name and address of the Person for whom\nsuch employment or consulting is undertaken and the nature of the Executive's position with such Person. The Executive agrees to also\nprovide\nthe Company with such other pertinent information as the Company may reasonably request in order to determine the Executive's continued\ncompliance with his surviving obligations under Sections 1, 3 and 4 hereof.\n6.\nEnforcement of Covenants. The Executive acknowledges that he has carefully read and considered all the terms and\nconditions of this Agreement, including the restraints imposed on him pursuant to Sections 1, 3 and 4 hereof. The Executive agrees without\nreservation that each of the restraints contained herein is necessary for the reasonable and proper protection of the goodwill, Confidentia\nInformation and other legitimate interests of the Company and its Immediate Affiliates; that each and every one of those restraints is reasonable\nin respect to subject matter, length of time and geographic area; and that these restraints, individually or in the aggregate, will not prevent him\nfrom obtaining other suitable employment during the period in which the Executive is bound by these restraints. The Executive further agrees\nthat he will not assert, or permit to be asserted on his behalf, in any forum, any position contrary to the foregoing. The Executive further\nacknowledges that, were he to breach any of the covenants contained in Section 1, 3 or 4 hereof, the damage to the Company would be\nirreparable. The Executive therefore agrees that the Company, in addition to any other remedies available to it, shall be entitled to preliminary\nand permanent injunctive relief against any breach or threatened breach by the Executive of any of said covenants, without having to post bond.\nThe parties further agree that, in the event that any provision of Section 1, 3 or 4 hereof shall be determined by any court of competent\njurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range\nof\nactivities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.\n7.\nConflicting Agreements. The Executive hereby represents and warrants that the execution of this Agreement and the\nperformance of his obligations hereunder will not breach or be in conflict with any other agreement to which the Executive is a party or is bound\nand that the Executive is not now subject to any covenants against competition or similar covenants or any court order or other legal obligation\nthat would affect the performance of his obligations hereunder. The Executive agrees not to disclose to or use on behalf of the Company or any\nof its Affiliates any proprietary information of a prior employer or other Person without such Person's consent.\n8.\nDefinitions. Words or phrases which are initially capitalized or are within quotation marks shall have the meanings provided\nin this Section and as provided elsewhere herein. For purposes of this Agreement, the following definitions apply:\n4\n(a)\n"Affiliates" means all persons and entities directly or indirectly controlling, controlled by or under common control\nwith the Company, where control may be by management authority, contract or equity interest.\n(b)\n"Confidential Information" means any and all information of the Company and its Affiliates that is not generally\nknown by Persons with whom the Company or any of its Affiliates competes or does business, or with whom the Company or any of its\nAffiliates plans to compete or do business and any and all information, publicly known in whole or in part or not, that, if disclosed by\nthe\nCompany or any of its Affiliates, would assist in competition against them. Confidential Information includes without limitation such\ninformation relating to (i) the development, research, testing, manufacturing, marketing and financial activities of the Company and its Affiliates,\n(ii) the Products, (iii) the costs, sources of supply, financial performance and strategic plans of the Company and its Affiliates, (iv) the identity\nand special needs of the customers of the Company and its Affiliates and (v) the people and organizations with whom the Company and its\nAffiliates have business relationships and the nature and substance of those relationships. Confidential Information also includes any and all\ninformation received by the Company or any of its Affiliates belonging to any customer or other Person with any understanding, express\nor\nimplied, that the information would not be disclosed.\n(c)\n"Date of Termination" means the date the Executive's employment with the Company terminates, regardless of the\nreason for such termination, and, for the avoidance of doubt, whether occurring pursuant to the employment agreement between the Company\nand the Executive of even date herewith or otherwise.\n(d)\n"Exclusive Licensees" means those Persons licensed by the Company and/or by one or more of its Immediate\nAffiliates to distribute in specific geographic areas one or more of the Products.\n(e)\n"Immediate Affiliates" means the Company's direct and indirect subsidiaries, the Company's direct and indirect\nparents and their direct and indirect subsidiaries.\n(f)\n"Intellectual Property." means inventions, discoveries, developments, methods, processes, compositions, works,\nconcepts\nand\nideas\n(whether or not patentable or copyrightable or registrable under any comparable law or constituting trade secrets) conceived,\nmade, created, developed or reduced to practice by the Executive (whether alone or with others, whether or not during normal business hours or\non or off Company premises) during the Executive's service on the Board or his employment with the Company or any of its Immediate\nAffiliates\nor\nthat\nrelate\nto\nthe\nProducts\nor\nto\nany\nprospective\nactivity\nof\nthe\nCompany\nor\nany\nof\nits\nImmediate\nAffiliates\nor\nto\nany\nwork\nperformed\nby the Executive for the Company or any of its Immediate Affiliates or that make use of Confidential Information or any of the equipment or\nfacilities of the Company or any of its Immediate Affiliates.\n(g)\n"Person" means an individual, a corporation, a limited liability company, an association, a partnership, an estate, a\ntrust and any other entity or organization, other than the Company or any of its Affiliates.\n5\n(h)\n"Products" mean all products planned, researched, developed, tested, manufactured, sold, licensed, leased or\notherwise distributed or put into use by the Company or any of its Immediate Affiliates, together with all services provided or planned by the\nCompany or any of its Immediate Affiliates, during the Executive's employment or during the period of his service on the Board that preceded\nthe Commencement Date.\n9.\nAssignment. Neither the Company nor the Executive may make any assignment of this Agreement or any interest in it, by\noperation of law or otherwise, without the prior written consent of the other; provided, however, that the Company may assign its rights and\nobligations under this Agreement without the Executive's consent in the event that the Company shall hereafter affect a reorganization,\nconsolidate with, or merge into any Person or transfer to any Person all or substantially all of the business, properties or assets of the Company.\nThis Agreement shall inure to the benefit of and be binding upon the Executive and the Company, and each of their respective successors,\nexecutors, administrators, heirs, representatives and permitted assigns. The Executive also agree that each of the Company's Affiliates shall have\nthe right to enforce all of his obligations to that Affiliate under this Agreement. The Executive hereby expressly consents to be bound by the\nprovisions of this Agreement for the benefit of the Company and of any successor or permitted assign to whose employ the Executive may\nbe\ntransferred, without the necessity that this Agreement be re-signed at the time of such transfer.\n10.\nSeverability.. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court\nof\ncompetent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those\nas\nto which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be\nvalid and enforceable to the fullest extent permitted by law.\n11.\nNotices. Any and all notices, requests, demands and other communications provided for by this Agreement shall be in writing\nand shall be effective when delivered in person, consigned to a reputable national courier service or deposited in the United States mail, postage\nprepaid, and addressed to the Executive at his last known address on the books of the Company or, in the case of the Company, at its principal\nplace of business in Cambridge, Massachusetts, attention of the Senior Vice President of Human Resources with a copy to the Office of the\nGeneral Counsel of the Company, or to such other address as either party may specify by notice to the other actually received.\n12.\nNot a Contract fon a Fixed Term. The Executive acknowledges and agrees that this Agreement does not in any way obligate\nthe Company to retain his services for a fixed period or at a fixed level of compensation; nor does it in any way restrict his right or that of the\nCompany to terminate his employment at any time, with or without notice or cause.\n13.\nEntire Agreement; Amendments; Waivers; Survival. This Agreement sets forth the entire agreement between the Executive\nand the Company and supersedes all prior and contemporaneous communications, agreements and understandings, written or oral, with respect to\nthe subject matter hereof; provided, however, that this Agreement shall not terminate or supersede the employment agreement between the\nExecutive and the Company of even date herewith; nor shall it supersede any confidentiality or other obligations the Executive may have\n6\nin connection with his service on the Board. This Agreement may not be modified or amended, and no breach shall be deemed to be waived,\nunless agreed to in writing by the Executive and an expressly authorized member of the Board. If any provision of this Agreement should, for\nany reason, be held invalid or unenforceable in any respect, it shall not affect any other provisions, and shall be construed by limiting it so as to\nbe enforceable to the maximum extent permissible by law. Provisions of this Agreement shall survive any termination of the Executive's\nemployment to the extent so provided in this Agreement or if necessary or desirable to accomplish the purpose of other surviving provisions.\n14.\nHeadings and Counterparts. The headings and captions in this Agreement are for convenience only and in no way define or\ndescribe the scope or content of any provision of this Agreement. This Agreement may be executed in two or more counterparts, each of which\nshall be an original and all of which together shall constitute one and the same instrument.\n15.\nGoverning Law. This is a Massachusetts contract and shall be construed and enforced under and be governed in all respects by\nthe laws of The Commonwealth of Massachusetts, without regard to the conflict of laws principles thereof.\n16.\nExecutive's Representations. In signing this Agreement, the Executive represents and warrants to the Company that he has\nread and understood all of its terms; that he has had a full and reasonable opportunity to consider its terms and to consult with an attorney and\nany\nperson\nof\nhis\nchoosing\nbefore\nsigning,\nif\nhe\nwished\nto\ndo\nso;\nthat\nhe\nhas\nnot\nrelied\non\nany\nagreements\nor\nrepresentations,\nexpress\nor\nimplied,\nconcerning the subject matter hereof that are not set forth expressly in this Agreement; and that he has signed this Agreement knowingly and\nvoluntarily.\nIntending to be legally bound hereby, the Executive has signed this Agreement under seal to take effect as of the date first written above.\nTHE EXECUTIVE:\nSignature: /s/ Jeffrey M. Leiden\nJeffrey M. Leiden, M.D., Ph.D.\nAccepted and Agreed:\nVERTEX PHARMACEUTICALS INCORPORATED\nBy: /s/ Matthew W. Emmens\nMatthew W. Emmens\nPresident, Chairman and CEO\n7	EX-10.35 4 a2206536zex-10_35.htm EX-10.35\nExhibit 10.35\nEMPLOYEE NON-DISCLOSURE, NON-COMPETITION & INVENTIONS AGREEMENT\nThis Agreement made and entered into in Cambridge, Massachusetts, by Jeffrey M. Leiden, M.D., Ph.D . (the “Executive”) and Vertex\nPharmaceuticals Incorporated (the “Company”), effective as of the Executive’s first day of employment with the Company, on the 14 day of\nDecember, 2011.\nWHEREAS, the Employee acknowledges the importance to Vertex Pharmaceuticals Incorporated (the “Company”) and its Affiliates (as\nhereafter defined) of protecting the valuable Confidential Information (as hereafter defined) and goodwill that they have developed or acquired\nand their other legitimate interests.\nNOW, THEREFORE, in consideration of his initial employment with the Company and in consideration of his being granted access to\ntrade secrets and other confidential information of the Company and its Affiliates and for other good and valuable consideration, the receipt and\nsufficiency of which he hereby acknowledges, the Executive hereby agrees with the Company as follows:\n1.\nConfidentiality. The Executive acknowledges that the Company and its Affiliates continually develop Confidential\nInformation; that the Executive may develop Confidential Information for the Company and its Affiliates; and that the Executive has learned and\nwill continue to learn of Confidential Information while serving as a member of the board of directors of the Company (the “Board”) and will\nlearn of Confidential Information hereafter during the course of employment with the Company. The Executive shall comply with the policies\nand procedures of the Company for protecting Confidential Information and shall not disclose to any Person (as hereafter defined) or use, other\nthan as required for the proper performance of his duties and responsibilities to the Company and its Affiliates, or as required by applicable law\nafter notice to the Company and a reasonable opportunity for the Company to seek protection of the Confidential Information prior to disclosure,\nany Confidential Information obtained by the Executive incident to his employment or other association with the Company or any of its\nAffiliates. The Executive understands and agrees that these restrictions shall continue to apply after his employment with the Company\nterminates, regardless of the reason for such termination. The confidentiality obligation under this Section 1 shall not apply to information that is\ngenerally known or readily available to the public at the time of disclosure to the Executive or that becomes generally known or readily available\nto the public thereafter through no wrongful act on the part of the Executive or any other Person having an obligation of confidentiality to the\nCompany or any of its Affiliates.\n2.\nReturn of Company Property. All documents, records, tapes and other media of every kind and description relating to the\nbusiness, present or otherwise, of the Company or any of its Affiliates and any copies, in whole or in part, thereof (the “Documents”), whether or\nnot prepared by the Executive, shall be the sole and exclusive property of the Company and its Affiliates. The Executive shall safeguard all\nDocuments and shall surrender to the Company at\nthe time his employment terminates, or at such earlier time or times as the Board or its designee may specify, all Documents and all other\nproperty of the Company and its Affiliates then in the Executive’s possession or control.\n3.\nAssignment of Rights to Intellectual Property. The Executive shall promptly and fully disclose to the Company all\nIntellectual Property (as defined in Section 8 hereof). The Executive hereby assigns and agrees to assign to the Company (or as otherwise\ndirected by the Company) the Executive’s full right, title and interest in and to all Intellectual Property. The Executive agrees to execute any and\nall applications for domestic and foreign patents, copyrights or other proprietary rights and to do such other acts (including without limitation the\nexecution and delivery of instruments of further assurance or confirmation) requested by the Company to assign the Intellectual Property to the\nCompany and to permit the Company to enforce any patents, copyrights or other proprietary rights to the Intellectual Property. The Executive\nwill not charge the Company for time spent in complying with these obligations. All copyrightable works that the Executive creates shall be\nconsidered “work made for hire” and shall, upon creation, be owned exclusively by the Company.\n4.\nRestricted Activities. The Executive agrees that the following restrictions on his activities during and after his employment\nare necessary to protect the goodwill, Confidential Information and other legitimate interests of the Company and its Affiliates:\n(a)\nWhile the Executive is employed by the Company and for eighteen (18) months after his employment terminates,\nregardless of the basis of such termination, except as otherwise provided in Section 6(c) of the Executive’s employment agreement with the\nCompany of even date herewith, the Executive shall not, directly or indirectly, whether as owner, partner, investor, consultant, agent, employee,\nco-venturer or otherwise, (i) compete with the Company or any of its Immediate Affiliates (as defined in Section 8 hereof) within the United\nStates or in any other country in which the Company or any of its Immediate Affiliates markets, or is in active planning to market, any of the\nProducts or otherwise conducts or is in active planning to conduct business; (ii) undertake any planning for any business competitive with the\nProducts of the Company or any of its Immediate Affiliates; or (iii) compete, or undertake any planning to compete with, the Exclusive Licensees\n(as also defined in Section 8) with respect to those Products as to which the Exclusive Licensees are licensed by the Company or any of its\nImmediate Affiliates in those geographic areas covered by those licenses. Specifically, but without limiting the foregoing, the Executive agrees\nnot to engage in any manner in any activity that is directly or indirectly competitive or potentially competitive with the Products or with any of\nthe other business activities of the Company or any of its Immediate Affiliates conducted or under consideration at any time during the\nExecutive’s employment or his service on the Board and further agrees not to work or provide services, in any capacity, whether as an employee,\nindependent contractor or otherwise, whether with or without compensation, for or to any Person who is engaged in any business that is\ncompetitive with the business of the Company or any of its Immediate Affiliates or any of the Exclusive Licensees (with respect to the Products\nlicensed), as conducted or in planning during the Executive’s employment. For the purposes of this Section 4, the business of the Company and\nth\nits Immediate Affiliates and the Exclusive Licensees shall include all Products and the Executive’s undertaking shall encompass all items,\nproducts and services that may be used in substitution for Products. The foregoing, however, shall not prevent the Executive’s passive ownership\nof two percent (2%) or less of the equity\n2\nsecurities of any publicly traded company; nor in any way limit him in the performance of his duties as a member of the boards of directors of\ncompanies previously disclosed to the Company or otherwise approved by the Board of Directors of the Company.\n(b)\nThe Executive agrees that, during his employment with the Company, he will not undertake any outside activity,\nwhether or not competitive with the business of the Company or any of its Immediate Affiliates, that could reasonably give rise to a conflict of\ninterest or otherwise interfere with any of his duties, responsibilities or obligations to the Company or any of its Immediate Affiliates.\n(c)\nThe Executive agrees that, during his employment with the Company and during the eighteen (18) months\nimmediately following termination of his employment, regardless of the basis of such termination, the Executive will not directly or indirectly\n(a) solicit or encourage any customer or prospective customer of the Company or any of its Immediate Affiliates or any of their Exclusive\nLicensees to terminate or diminish its relationship with the Company or any of its Immediate Affiliates; (b) seek to persuade any such customer\nor prospective customer of the Company or any of its Immediate Affiliates or any Exclusive Licensee to conduct with the Executive or any other\nPerson any business or activity that such customer, prospective customer or Exclusive Licensee conducts or could conduct with the Company or\nany of its Immediate Affiliates or (c) solicit or encourage any customer or prospective customer of any of the Exclusive Licensees for any of the\nProducts to terminate or diminish such business with the Exclusive Licensees or to conduct such business with the Executive or any other\nPerson; provided that these restrictions shall apply after termination of the Executive’s employment with the Company (y) only with respect to\nthose Persons who are or have been Exclusive Licensees or who are or have been a customer or potential customer of the Company or any of its\nImmediate Affiliates or the Exclusive Licensees at any time within the twelve (12) month period immediately preceding the Date of Termination\nor whose business has been solicited on behalf of the Company or any of its Immediate Affiliates or any of the Exclusive Licensees by any of\ntheir employees or agents within said twelve (12) month period, other than by form letter, blanket mailing or published advertisement, and\n(z) only if the Executive has been introduced to, or otherwise had contact with, such Person as a result of his employment or other associations\nwith the Company or one of its Immediate Affiliates or one of their Exclusive Licensees or has had access to Confidential Information that would\nassist in the Executive’s solicitation of such Person in competition with the Company or one of its Immediate Affiliates or one of the Exclusive\nLicensees.\n(d)\nThe Executive agrees that during his employment (except in the course of his duties on behalf of the Company or any\nof its Immediate Affiliates) and during the eighteen (18) month period immediately following termination of his employment, regardless of the\nbasis for such termination, the Executive will not, and will not assist any other Person to, (a) hire or solicit for hiring any employee of the\nCompany or any of its Immediate Affiliates or any of the Exclusive Licensees or seek to persuade any employee of the Company or any of its\nImmediate Affiliates or any of the Exclusive Licensees to discontinue employment or (b) solicit or encourage any independent contractor\nproviding services to the Company or any of its Immediate Affiliates or any of the Exclusive Licensees to terminate or diminish its relationship\nwith them. For the purposes of the Executive’s obligations hereunder following termination of his employment with the Company, an\n“employee” of the Company or any of its Immediate\n3\nAffiliates or any of the Exclusive Licensees or an “independent contractor” providing services to the Company or any of its Immediate Affiliates\nor any of the Exclusive Licensees is any Person who was such at any time during the twelve (12) months preceding the Date of Termination.\n5.\nNotification Requirement. During the eighteen (18) months immediately following the Date of Termination, the Executive\nshall give notice to the Company prior to beginning employment or a consulting position stating the name and address of the Person for whom\nsuch employment or consulting is undertaken and the nature of the Executive’s position with such Person. The Executive agrees to also provide\nthe Company with such other pertinent information as the Company may reasonably request in order to determine the Executive’s continued\ncompliance with his surviving obligations under Sections 1, 3 and 4 hereof.\n6.\nEnforcement of Covenants. The Executive acknowledges that he has carefully read and considered all the terms and\nconditions of this Agreement, including the restraints imposed on him pursuant to Sections 1, 3 and 4 hereof. The Executive agrees without\nreservation that each of the restraints contained herein is necessary for the reasonable and proper protection of the goodwill, Confidential\nInformation and other legitimate interests of the Company and its Immediate Affiliates; that each and every one of those restraints is reasonable\nin respect to subject matter, length of time and geographic area; and that these restraints, individually or in the aggregate, will not prevent him\nfrom obtaining other suitable employment during the period in which the Executive is bound by these restraints. The Executive further agrees\nthat he will not assert, or permit to be asserted on his behalf, in any forum, any position contrary to the foregoing. The Executive further\nacknowledges that, were he to breach any of the covenants contained in Section 1, 3 or 4 hereof, the damage to the Company would be\nirreparable. The Executive therefore agrees that the Company, in addition to any other remedies available to it, shall be entitled to preliminary\nand permanent injunctive relief against any breach or threatened breach by the Executive of any of said covenants, without having to post bond.\nThe parties further agree that, in the event that any provision of Section 1, 3 or 4 hereof shall be determined by any court of competent\njurisdiction to be unenforceable by reason of its being extended over too great a time, too large a geographic area or too great a range of\nactivities, such provision shall be deemed to be modified to permit its enforcement to the maximum extent permitted by law.\n7.\nConflicting Agreements. The Executive hereby represents and warrants that the execution of this Agreement and the\nperformance of his obligations hereunder will not breach or be in conflict with any other agreement to which the Executive is a party or is bound\nand that the Executive is not now subject to any covenants against competition or similar covenants or any court order or other legal obligation\nthat would affect the performance of his obligations hereunder. The Executive agrees not to disclose to or use on behalf of the Company or any\nof its Affiliates any proprietary information of a prior employer or other Person without such Person’s consent.\n8.\nDefinitions. Words or phrases which are initially capitalized or are within quotation marks shall have the meanings provided\nin this Section and as provided elsewhere herein. For purposes of this Agreement, the following definitions apply:\n4\n(a)\n“Affiliates” means all persons and entities directly or indirectly controlling, controlled by or under common control\nwith the Company, where control may be by management authority, contract or equity interest.\n(b)\n“Confidential Information” means any and all information of the Company and its Affiliates that is not generally\nknown by Persons with whom the Company or any of its Affiliates competes or does business, or with whom the Company or any of its\nAffiliates plans to compete or do business and any and all information, publicly known in whole or in part or not, that, if disclosed by the\nCompany or any of its Affiliates, would assist in competition against them. Confidential Information includes without limitation such\ninformation relating to (i) the development, research, testing, manufacturing, marketing and financial activities of the Company and its Affiliates,\n(ii) the Products, (iii) the costs, sources of supply, financial performance and strategic plans of the Company and its Affiliates, (iv) the identity\nand special needs of the customers of the Company and its Affiliates and (v) the people and organizations with whom the Company and its\nAffiliates have business relationships and the nature and substance of those relationships. Confidential Information also includes any and all\ninformation received by the Company or any of its Affiliates belonging to any customer or other Person with any understanding, express or\nimplied, that the information would not be disclosed.\n(c)\n“Date of Termination” means the date the Executive’s employment with the Company terminates, regardless of the\nreason for such termination, and, for the avoidance of doubt, whether occurring pursuant to the employment agreement between the Company\nand the Executive of even date herewith or otherwise.\n(d)\n“Exclusive Licensees” means those Persons licensed by the Company and/or by one or more of its Immediate\nAffiliates to distribute in specific geographic areas one or more of the Products.\n(e)\n“Immediate Affiliates” means the Company’s direct and indirect subsidiaries, the Company’s direct and indirect\nparents and their direct and indirect subsidiaries.\n(f)\n“Intellectual Property” means inventions, discoveries, developments, methods, processes, compositions, works,\nconcepts and ideas (whether or not patentable or copyrightable or registrable under any comparable law or constituting trade secrets) conceived,\nmade, created, developed or reduced to practice by the Executive (whether alone or with others, whether or not during normal business hours or\non or off Company premises) during the Executive’s service on the Board or his employment with the Company or any of its Immediate\nAffiliates or that relate to the Products or to any prospective activity of the Company or any of its Immediate Affiliates or to any work performed\nby the Executive for the Company or any of its Immediate Affiliates or that make use of Confidential Information or any of the equipment or\nfacilities of the Company or any of its Immediate Affiliates.\n(g)\n“Person” means an individual, a corporation, a limited liability company, an association, a partnership, an estate, a\ntrust and any other entity or organization, other than the Company or any of its Affiliates.\n5\n(h)\n“Products” mean all products planned, researched, developed, tested, manufactured, sold, licensed, leased or\notherwise distributed or put into use by the Company or any of its Immediate Affiliates, together with all services provided or planned by the\nCompany or any of its Immediate Affiliates, during the Executive’s employment or during the period of his service on the Board that preceded\nthe Commencement Date.\n9.\nAssignment. Neither the Company nor the Executive may make any assignment of this Agreement or any interest in it, by\noperation of law or otherwise, without the prior written consent of the other; provided, however, that the Company may assign its rights and\nobligations under this Agreement without the Executive’s consent in the event that the Company shall hereafter affect a reorganization,\nconsolidate with, or merge into any Person or transfer to any Person all or substantially all of the business, properties or assets of the Company.\nThis Agreement shall inure to the benefit of and be binding upon the Executive and the Company, and each of their respective successors,\nexecutors, administrators, heirs, representatives and permitted assigns. The Executive also agree that each of the Company’s Affiliates shall have\nthe right to enforce all of his obligations to that Affiliate under this Agreement. The Executive hereby expressly consents to be bound by the\nprovisions of this Agreement for the benefit of the Company and of any successor or permitted assign to whose employ the Executive may be\ntransferred, without the necessity that this Agreement be re-signed at the time of such transfer.\n10.\nSeverability. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court\nof competent jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those\nas to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be\nvalid and enforceable to the fullest extent permitted by law.\n11.\nNotices. Any and all notices, requests, demands and other communications provided for by this Agreement shall be in writing\nand shall be effective when delivered in person, consigned to a reputable national courier service or deposited in the United States mail, postage\nprepaid, and addressed to the Executive at his last known address on the books of the Company or, in the case of the Company, at its principal\nplace of business in Cambridge, Massachusetts, attention of the Senior Vice President of Human Resources with a copy to the Office of the\nGeneral Counsel of the Company, or to such other address as either party may specify by notice to the other actually received.\n12.\nNot a Contract for a Fixed Term. The Executive acknowledges and agrees that this Agreement does not in any way obligate\nthe Company to retain his services for a fixed period or at a fixed level of compensation; nor does it in any way restrict his right or that of the\nCompany to terminate his employment at any time, with or without notice or cause.\n13.\nEntire Agreement; Amendments; Waivers; Survival. This Agreement sets forth the entire agreement between the Executive\nand the Company and supersedes all prior and contemporaneous communications, agreements and understandings, written or oral, with respect to\nthe subject matter hereof; provided, however, that this Agreement shall not terminate or supersede the employment agreement between the\nExecutive and the Company of even date herewith; nor shall it supersede any confidentiality or other obligations the Executive may have\n6\nin connection with his service on the Board. This Agreement may not be modified or amended, and no breach shall be deemed to be waived,\nunless agreed to in writing by the Executive and an expressly authorized member of the Board. If any provision of this Agreement should, for\nany reason, be held invalid or unenforceable in any respect, it shall not affect any other provisions, and shall be construed by limiting it so as to\nbe enforceable to the maximum extent permissible by law. Provisions of this Agreement shall survive any termination of the Executive’s\nemployment to the extent so provided in this Agreement or if necessary or desirable to accomplish the purpose of other surviving provisions.\n14.\nHeadings and Counterparts. The headings and captions in this Agreement are for convenience only and in no way define or\ndescribe the scope or content of any provision of this Agreement. This Agreement may be executed in two or more counterparts, each of which\nshall be an original and all of which together shall constitute one and the same instrument.\n15.\nGoverning Law. This is a Massachusetts contract and shall be construed and enforced under and be governed in all respects by\nthe laws of The Commonwealth of Massachusetts, without regard to the conflict of laws principles thereof.\n16.\nExecutive’s Representations. In signing this Agreement, the Executive represents and warrants to the Company that he has\nread and understood all of its terms; that he has had a full and reasonable opportunity to consider its terms and to consult with an attorney and\nany person of his choosing before signing, if he wished to do so; that he has not relied on any agreements or representations, express or implied,\nconcerning the subject matter hereof that are not set forth expressly in this Agreement; and that he has signed this Agreement knowingly and\nvoluntarily.\nIntending to be legally bound hereby, the Executive has signed this Agreement under seal to take effect as of the date first written above.\nTHE EXECUTIVE:\nSignature: /s/ Jeffrey M. Leiden\nJeffrey M. Leiden, M.D., Ph.D.\nAccepted and Agreed:\nVERTEX PHARMACEUTICALS INCORPORATED\nBy: /s/ Matthew W. Emmens\nMatthew W. Emmens\nPresident, Chairman and CEO\n7
+cbbcc01ea9cfa4ec8bfa27f0f9f71088.pdf	effective_date jurisdiction party term	EX-10.9 3 d210918dex109.htm FORM OF INVENTION, NON-DISCLOSURE, NON-COMPETITION AND NON-\nSOLICITATION AGREEMENT\nExhibit 10.9\nLOGO\nThe following is the form of Invention, Non-Disclosure, Non-Competition and Non-Solicitation Agreement entered into by new and existing\nemployees of The First Marblehead Corporation (“FMD”) and its subsidiary, Tuition Management Systems LLC (“TMS”). There are variations in\nthe provisions of this agreement based upon an employee’s position at FMD or TMS, as applicable; accordingly, those differences have been\nidentified in brackets and referenced in the accompanying footnotes.\nINVENTION, NON-DISCLOSURE, [NON-COMPETITION] AND NON-SOLICITATION AGREEMENT\nThis Agreement is made this\nday of\n, 2011 between The First Marblehead Corporation, a Delaware corporation (hereinafter\nreferred to collectively with its direct and indirect subsidiaries and affiliates as the “Company”), and\n(the “Employee”). [For the avoidance of doubt, references to the Company in this Agreement include FM Systems\nLLC (d/b/a Tuition Management Systems LLC), except where the context otherwise requires.]\nIn consideration of the [initial and] continued employment of the Employee by the Company, and [consideration to be received by Employee] , the\nreceipt and sufficiency of which is hereby acknowledged by the Employee, the Company and the Employee agree as follows:\n1. Confidential Information\na) The Employee agrees that his or her employment with the Company has created a relationship of trust and confidence between the Employee\nand the Company, and the protection of the Company’s proprietary and Confidential Information (as defined in Section 1(b) below) and its\ngoodwill is critical to the Company’s survival and success. The Employee further represents and agrees that he/she (i) has held and will hold\nall Confidential Information in strict trust and confidence, and (ii) has not disclosed or used, and will not disclose or use at any time, any\nConfidential Information without the prior written consent of an authorized officer of the Company, except to the extent necessary in the\nordinary course of performing his/her duties as an employee of the Company and solely in furtherance of the interests of the Company.\nb) For purposes of this Agreement, the term “Confidential Information” means all information, knowledge or data, in any form or media,\nbelonging or relating to the Company (including securitization trusts) or former or current clients of the Company, which is of value to the\nCompany and the disclosure of which could result in competitive or other disadvantage to the Company. Confidential Information is and shall\nbe the exclusive property of the Company and includes, but is not limited to: (i) the Company’s documents, records, communications, reports,\nforecasts, projections, product and service specifications, statistical models, formulae and\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\nApplicable exclusively to agreements entered into by new and existing employees of TMS.\nApplicable exclusively to agreements entered into by new employees of FMD and TMS.\nProvision reflects consideration specific to each employee’s individual agreement with FMD.\n-1-\n1\n2\n3\n4\n1\n2\n3\n4\nalgorithms, tools, designs, pricing methods and policies, processes, methods of operation, techniques, arrangements, procedures, current and\nplanned distribution methods and processes, strategic initiatives, business opportunities and strategies, creative plans and strategies, personnel\ninformation, policies, trade secrets, ideas, concepts, know-how, intangible rights, inventions, research and development, source code, systems,\narchitecture, computer programs and database technologies; (ii) information belonging or relating to the Company’s former or current\ncustomers, clients, service providers, consultants and other business relations, including the existence or status of, and any non-public\ninformation concerning, discussions between the Company and former, current, or prospective clients; (iii) the Company’s non-public\nbusiness, operational or financial results, including the performance of any loan portfolio facilitated by the Company, product development\ninitiatives, expansion plans and revenue and expense information; and (iv) information belonging or relating to any third party. In addition, the\nterm Confidential Information includes any notes, analyses, compilations, abstracts, studies, interpretations, memoranda or other documents\nthat contain, reflect or are based upon, in whole or in part, any Confidential Information, whether created by the Employee or others.\nConfidential Information includes information developed by the Employee in the course of his/her employment with the Company, as well as\nother information to which the Employee has or will have access during the period of his/her employment with the Company, including the\nconfidential information of others with whom the Company has a business relationship. The absence of any marking or statement that any\nparticular information is Confidential Information will not affect its status as Confidential Information.\nc) Confidential Information will not include information which is or becomes generally known to the public through no fault of any person. In\naddition, nothing in this Agreement is intended to or shall preclude the Employee from providing truthful testimony or providing truthful\ninformation in response to a valid subpoena, court order or request of any federal, state or local authority, quasi-regulatory or self-governing\nauthority, provided, to the extent permitted by law, the Employee has provided to the Company as much advance notice as practicable of any\nsuch compelled disclosure. The Employee further agrees to cooperate with the Company, at the Company’s cost, to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such governing\nauthority.\nd) The Employee agrees that all materials, in any form or media, that contain, reflect or are based upon, in whole or in part, Confidential\nInformation, whether created by the Employee or others, which have or will come into his/her custody or possession, are and will be the\nexclusive property of the Company to be used by the Employee only in the performance of his/her duties for the Company. All such tangible\nand intangible materials, and all copies, abstracts, compilations or reproductions thereof, and all property and equipment of the Company in the\ncustody or possession of the Employee will be left intact by the Employee and delivered to the Company, upon the earlier of (i) a request by\nthe Company or (ii) termination of his/her employment, whether voluntary or involuntary. After such delivery, the Employee will not retain\nany such tangible or intangible materials, or copies, abstracts, compilations or reproductions thereof, or any such property. For the avoidance\nof doubt, in connection with the voluntary or involuntary termination of his/her employment, the Employee agrees to leave intact all such\ntangible and intangible materials, including electronic documents of the Company, except in accordance with the Company’s document\nretention policies.\n-2-\ne) The Employee agrees that his/her obligations not to disclose or use Confidential Information as set forth in Sections 1(a) and (d) above, and\nhis/her obligations to return and leave intact tangible and intangible materials as set forth in Section 1(d) above, also extends to such types of\ninformation, materials and tangible property of former or current clients or customers of the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2. Developments\na) All Developments (as defined below) that are made, conceived, reduced to practice, created, written, designed or developed by the Employee\nor under his/her direction or jointly with others, whether or not during normal working hours or on the premises of the Company, (i) during the\nperiod of the Employee’s employment with the Company if related to the business or research and development conducted or planned to be\nconducted by the Company and (ii) after the period of the Employee’s employment with the Company if resulting or directly derived from\nConfidential Information, will be the sole property of the Company. For purposes of this Agreement, the term “Developments” means any\ninventions, discoveries, computer programs, source code, data, technology, designs, statistical models, formulae and algorithms, tools,\ninnovations, improvements, methods, techniques, developments and works of authorship, whether or not patentable and whether or not\ncopyrightable.\nb) The Employee will make full and prompt disclosure to the Company of all Developments and will maintain adequate and current written\nrecords (in the form of notes, memoranda and as may otherwise be specified by the Company) to document the conception and/or first actual\nreduction to practice of any Development. The Employee will not disclose any Development to any third party without the express written\npermission of an authorized officer of the Company, and all Developments will be treated by the Employee as Confidential Information. Such\nwritten records will be available to and remain the sole property of the Company at all times.\nc) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all of his/her\nright, title and interest in and to all Developments and all related patents, copyrights, trademarks, trade names, and other industrial and\nintellectual property rights, and all applications therefor, in the United States and elsewhere. However, this Section 2(c) will not apply to\nDevelopments which do not relate to the business or research and development conducted or planned to be conducted by the Company at the\ntime such Development is created, made, conceived or reduced to practice and which are made and conceived by the Employee not during\nnormal working hours, not on the Company’s premises and not using the Company’s tools, devices, equipment or Confidential Information.\nThe Employee understands that, to the extent this Agreement will be construed in accordance with the laws of any state which precludes a\nrequirement in an employee agreement to assign certain classes of inventions made by an employee, this Section 2(c) will be interpreted not to\napply to any invention which a court rules and/or the Company agrees falls within such classes.\n-3-\nd) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with respect to the\nprocurement, maintenance and enforcement of patents, copyrights, trademarks, trade names and other industrial and intellectual property rights\n(both in the United States and foreign countries) relating to Developments. The Employee hereby appoints any officer of the Company as the\nEmployee’s duly authorized attorney to execute, file, prosecute and protect any Development and related patent, copyright, trademark, trade\nname and other industrial and intellectual property right, and applications therefor, before any government agency, court or authority. Upon the\nrequest of the Company, the Employee will execute such further assignments, documents and other instruments as may be necessary, desirable\nor appropriate to fully and completely assign all Developments to the Company and assist the Company in applying for, obtaining and\nenforcing patents, copyrights or other rights in the United States and in any foreign jurisdiction with respect to any Development. The\nEmployee also hereby waives all claims to moral rights in any Developments.\ne) The Employee acknowledges that the Company from time to time may have agreements with other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of\nwork under such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n3. Other Agreements\na) The Employee agrees to devote his/her best efforts to the services of the Company in such capacity as the Company from time to time shall\ndirect and agrees to comply with the Company’s rules, policies, and practices at all times.\nb) The Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the\nterms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or\nproprietary information in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the\nbusiness of such previous employer or any other party or to refrain from soliciting employees, customers or suppliers of such previous\nemployer or other party. The Employee further represents that his/her performance of all the terms of this Agreement and the performance of\nhis/her duties as an employee of the Company do not and will not breach any agreement with any prior employer or other party to which the\nEmployee is a party (including without limitation any nondisclosure or non-competition agreement), and that the Employee will not disclose to\nthe Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or\nother third party.\nc) The Employee agrees that for a period of one year after the termination or cessation of his/her employment for any reason, whether voluntary\nor involuntary, the Employee will inform his/her potential or actual future employers of his/her obligations under this Agreement, including\nSections 1 and 4.\nd) The Employee specifically authorizes the Company to notify any subsequent employers or prospective employers of the Employee of the\nrestrictions on the Employee contained in this Agreement and of any concerns the Company may have about actual or possible conduct by the\nEmployee that may be in breach of this Agreement.\n-4-\ne) [In the event that the Employee believes that employment otherwise in violation of this Agreement would not harm the Company’s legitimate\nbusiness interests, the Employee may request the Company to waive certain of the restrictions contained in this Agreement. Any such request\nshall be made in writing to the Company’s Managing Director, Human Resources and shall identify the business with which the Employee\nseeks to associate and describe the duties that the Employee seeks to perform. The Company has the sole discretion whether to grant such a\nwaiver, and no waiver of any restrictions under this Agreement shall be effective unless in writing and signed by the Managing Director,\nHuman Resources of the Company.]\n{4. Non-Competition and Non-Solicitation\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such employment for any reason,\nwhether voluntary or involuntary, the Employee will not directly or indirectly:\na)\nengage or assist others in engaging in any business or enterprise [in the United States] [in any state in which the Employee has performed any\nservices for the Company at any time during his or her employment] (whether as owner, partner, joint venturer, officer, director, employee,\nconsultant, contractor, investor, lender or otherwise, except as the holder of not more than 1% of the outstanding stock of a publicly-held\ncompany) that competes or intends to compete in any way with the department, division or unit of the Company (i) for which the Employee\nworked, (ii) for which the Employee performed services, or (iii) about which the Employee had access to Confidential Information in the\ncourse of his/her employment with the Company;\nb) on his/her own behalf or on behalf of any third person or entity, and whether through his/her own efforts or by assisting any other person or\nentity (including, any person employed by or associated with any entity with whom the Employee becomes employed or associated)\n(i) participate in the solicitation for employment, attempt to hire or hiring of any person or entity employed or otherwise retained or engaged\nby the Company, (ii) hire, employ or engage any person or entity employed or otherwise retained or engaged by the Company or\n(iii) encourage or induce any person employed or otherwise retained or engaged by the Company to terminate his/her employment,\nconsultancy or other relationship with the Company; provided, that this Section 4(b) will not apply to the solicitation, hiring or engagement of\nany person or entity whose employment or engagement with the Company has been terminated for a period of six months or longer; and\nc)\non his/her own behalf or on behalf of any third person or entity, and whether through his/her own efforts or by assisting any other person or\nentity (including, any person employed by or associated with any entity with whom the Employee becomes employed or associated), induce or\nattempt to induce (including, without limitation, by soliciting business from or performing services for) any customer, client, supplier,\nconsultant, licensee or business relation of the Company (i) to cease doing business with the Company, (ii) to reduce the level of business\nhe/she/it performs with the Company, or (iii) to divert marketing or other resources away from the Company.\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\nApplicable exclusively to agreements entered into by non-staff, non-Sales department employees of FMD and TMS.\nApplicable exclusively to agreements entered into by non-staff, Sales department employees of FMD and TMS.\n-5-\n5\n6\n7\n5\n6\n7\nIn addition, for a period of one year after the termination or cessation of the Employee’s employment with the Company for any reason, whether\nvoluntary or involuntary, the Employee will not directly or indirectly solicit or accept any financial services-related business (other than personal or\nhousehold financial services) from (i) any person or entity that was a client or customer of the Company at the date of any cessation or termination of\nthe Employee’s employment, if the Employee was introduced to or interacted with such client or customer regarding the Company’s business or\n(ii) any person or entity that was a prospect of the Company at any time during the 12 months immediately prior to the date of any cessation or\ntermination of the Employee’s employment, if the Employee directly solicited such prospect or if the Employee directly or indirectly, in whole or in\npart, supervised or participated in solicitation activities related to such prospect.}\n[4. Non-Solicitation\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such employment for any reason,\nwhether voluntary or involuntary, the Employee will not directly or indirectly, on his/her own behalf or on behalf of any third person or entity, and\nwhether through his/her own efforts or by assisting any other person or entity (including any person employed by or associated with any entity with\nwhom the Employee becomes employed or associated): (a) participate in the solicitation for employment, attempt to hire or hiring of any person or\nentity employed or otherwise retained or engaged by the Company, (b) hire, employ or engage any person or entity employed or otherwise retained\nor engaged by the Company or (c) encourage or induce any person employed or otherwise retained or engaged by the Company to terminate his/her\nemployment, consultancy or other relationship with the Company; provided, that this Section 4 will not apply to the solicitation, hiring or\nengagement of any person or entity whose employment or engagement with the Company has been terminated for a period of six months or longer.]\n5. No Employment Contract\nThe Employee understands that this Agreement does not constitute a contract of employment and does not alter the at-will nature of the Employee’s\nemployment with the Company or otherwise imply that his/her employment will continue for any period of time. The Employee understands that\nboth the Employee and the Company may end the employment relationship at any time and for any reason.\n6. Miscellaneous\na) The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this\nAgreement.\nb) If the Employee violates the provisions of Section 4, the Employee will continue to be bound by the restrictions set forth in Section 4 until a\nperiod of one year has expired without any violation of such provisions.\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\nApplicable exclusively to agreements entered into by staff level employees of FMD and TMS.\n-6-\n8\n9\n8\n9\nc) If any restriction set forth in Section 4 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a\nperiod of time or over too great a range of activities [or in too broad a geographic area] , it will be interpreted to extend only over the\nmaximum period of time, range of activities [or geographic area] as to which it may be enforceable.\nd) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject matter of this\nAgreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed by the\nEmployee and the Company. The Employee agrees that any change or changes in his/her duties, authority, salary or compensation after the\nsigning of this Agreement will not affect the validity or scope of this Agreement.\ne) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the Company and its\nsuccessors and assigns.\nf) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right. A\nwaiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or waiver\nof any right on any other occasion.\ng) The Employee agrees that the obligations and restrictions contained in this Agreement, including the covenants contained in Sections 1, 2 and\n4, are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such\npurpose. The Employee agrees that any breach or threatened breach of this Agreement by the Employee is likely to cause the Company not\nonly financial harm, but substantial and irrevocable damage which is difficult to measure and for which money damages alone will not provide\nan adequate remedy. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to\nsuch other remedies which may be available, will be entitled to enforce the specific performance of the provisions of this Agreement by the\nEmployee and will have the right to both temporary and permanent injunctive relief (to the extent permitted by law), without the necessity of\nproving actual damages or posting any surety or bond, from a court restraining such a breach or threatened breach, and the Employee hereby\nwaives the adequacy of a remedy at law as a defense to such relief. If the Employee breaches any of the covenants set forth in this Agreement,\nhe/she agrees to pay all reasonable costs (including attorneys’ fees) incurred by the Company in establishing that breach and in otherwise\nenforcing any of the covenants or provisions of this Agreement.\nh) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the Commonwealth of\nMassachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced\nto resolve any matter arising under or relating to any provision of this Agreement will be commenced only in a court of the Commonwealth of\nMassachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each consents to the\nexclusive jurisdiction of such a court. Both the Employee and the Company waive the right to a trial by jury with respect to any matter arising\nunder or relating to any provision of this Agreement or otherwise related to the Employee’s employment with the Company or the termination\nof the Employee’s employment with the Company.\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\n-7-\n10\n11\n10\n11\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nTHE FIRST MARBLEHEAD CORPORATION\nBy:\nJo-Ann Burnham\nManaging Director, Human Resources\nEMPLOYEE\nName:\nDate:\n-8-	EX-10.9 3 d210918dex109.htm FORM OF INVENTION, NON-DISCLOSURE, NON-COMPETITION AND NON-\nSOLICITATION AGREEMENT\nExhibit 10.9\n».LOGO\nThe following is the form of Invention, Non-Disclosure, Non-Competition and Non-Solicitation Agreement entered into by new and existing\nemployees of The First Marblehead Corporation (“FMD”) and its subsidiary, Tuition Management Systems LLC (“TMS”). There are variations in\nthe provisions of this agreement based upon an employee’s position at FMD or TMS, as applicable; accordingly, those differences have been\nidentified in brackets and referenced in the accompanying footnotes.\nINVENTION, NON-DISCLOSURE, [NON-COMPETITION]! AND NON-SOLICITATION AGREEMENT\nThis Agreement is made this day of 2011 between The First Marblehead Corporation, a Delaware corporation (hereinafter\nreferred to collectively with its direct and indirect subsidiaries and affiliates as the “Company”), and\n(the “Employee”). [For the avoidance of doubt, references to the Company in this Agreement include FM Systems\nLLC (d/b/a Tuition Management Systems LL.C), except where the context otherwise requires.]?\n \nIn consideration of the [initial and]? continued employment of the Employee by the Company, and [consideration to be received by Employee]4, the\nreceipt and sufficiency of which is hereby acknowledged by the Employee, the Company and the Employee agree as follows:\n1. Confidential Information\na)  The Employee agrees that his or her employment with the Company has created a relationship of trust and confidence between the Employee\nand the Company, and the protection of the Company’s proprietary and Confidential Information (as defined in Section 1(b) below) and its\ngoodwill is critical to the Company’s survival and success. The Employee further represents and agrees that he/she (i) has held and will hold\nall Confidential Information in strict trust and confidence, and (ii) has not disclosed or used, and will not disclose or use at any time, any\nConfidential Information without the prior written consent of an authorized officer of the Company, except to the extent necessary in the\nordinary course of performing his/her duties as an employee of the Company and solely in furtherance of the interests of the Company.\nb)  For purposes of this Agreement, the term “Confidential Information” means all information, knowledge or data, in any form or media,\nbelonging or relating to the Company (including securitization trusts) or former or current clients of the Company, which is of value to the\nCompany and the disclosure of which could result in competitive or other disadvantage to the Company. Confidential Information is and shall\nbe the exclusive property of the Company and includes, but is not limited to: (i) the Company’s documents, records, communications, reports,\nforecasts, projections, product and service specifications, statistical models, formulae and\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\nApplicable exclusively to agreements entered into by new and existing employees of TMS.\nApplicable exclusively to agreements entered into by new employees of FMD and TMS.\nProvision reflects consideration specific to each employee’s individual agreement with FMD.\nAW N R\n-1-\nd)\nalgorithms, tools, designs, pricing methods and policies, processes, methods of operation, techniques, arrangements, procedures, current and\nplanned distribution methods and processes, strategic initiatives, business opportunities and strategies, creative plans and strategies, personnel\ninformation, policies, trade secrets, ideas, concepts, know-how, intangible rights, inventions, research and development, source code, systems,\narchitecture, computer programs and database technologies; (ii) information belonging or relating to the Company’s former or current\ncustomers, clients, service providers, consultants and other business relations, including the existence or status of, and any non-public\ninformation concerning, discussions between the Company and former, current, or prospective clients; (iii) the Company’s non-public\nbusiness, operational or financial results, including the performance of any loan portfolio facilitated by the Company, product development\ninitiatives, expansion plans and revenue and expense information; and (iv) information belonging or relating to any third party. In addition, the\nterm Confidential Information includes any notes, analyses, compilations, abstracts, studies, interpretations, memoranda or other documents\nthat contain, reflect or are based upon, in whole or in part, any Confidential Information, whether created by the Employee or others.\nConfidential Information includes information developed by the Employee in the course of his/her employment with the Company, as well as\nother information to which the Employee has or will have access during the period of his/her employment with the Company, including the\nconfidential information of others with whom the Company has a business relationship. The absence of any marking or statement that any\nparticular information is Confidential Information will not affect its status as Confidential Information.\nConfidential Information will not include information which is or becomes generally known to the public through no fault of any person. In\naddition, nothing in this Agreement is intended to or shall preclude the Employee from providing truthful testimony or providing truthful\ninformation in response to a valid subpoena, court order or request of any federal, state or local authority, quasi-regulatory or self-governing\nauthority, provided, to the extent permitted by law, the Employee has provided to the Company as much advance notice as practicable of any\nsuch compelled disclosure. The Employee further agrees to cooperate with the Company, at the Company’s cost, to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such governing\nauthority.\nThe Employee agrees that all materials, in any form or media, that contain, reflect or are based upon, in whole or in part, Confidential\nInformation, whether created by the Employee or others, which have or will come into his/her custody or possession, are and will be the\nexclusive property of the Company to be used by the Employee only in the performance of his/her duties for the Company. All such tangible\nand intangible materials, and all copies, abstracts, compilations or reproductions thereof, and all property and equipment of the Company in the\ncustody or possession of the Employee will be left intact by the Employee and delivered to the Company, upon the earlier of (i) a request by\nthe Company or (ii) termination of his/her employment, whether voluntary or involuntary. After such delivery, the Employee will not retain\nany such tangible or intangible materials, or copies, abstracts, compilations or reproductions thereof, or any such property. For the avoidance\nof doubt, in connection with the voluntary or involuntary termination of his/her employment, the Employee agrees to leave intact all such\ntangible and intangible materials, including electronic documents of the Company, except in accordance with the Company’s document\nretention policies.\n_2-\nb)\nThe Employee agrees that his/her obligations not to disclose or use Confidential Information as set forth in Sections 1(a) and (d) above, and\nhis/her obligations to return and leave intact tangible and intangible materials as set forth in Section 1(d) above, also extends to such types of\ninformation, materials and tangible property of former or current clients or customers of the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\nDevelopments\nAll Developments (as defined below) that are made, conceived, reduced to practice, created, written, designed or developed by the Employee\nor under his/her direction or jointly with others, whether or not during normal working hours or on the premises of the Company, (i) during the\nperiod of the Employee’s employment with the Company if related to the business or research and development conducted or planned to be\nconducted by the Company and (ii) after the period of the Employee’s employment with the Company if resulting or directly derived from\nConfidential Information, will be the sole property of the Company. For purposes of this Agreement, the term “Developments” means any\ninventions, discoveries, computer programs, source code, data, technology, designs, statistical models, formulae and algorithms, tools,\ninnovations, improvements, methods, techniques, developments and works of authorship, whether or not patentable and whether or not\ncopyrightable.\nThe Employee will make full and prompt disclosure to the Company of all Developments and will maintain adequate and current written\nrecords (in the form of notes, memoranda and as may otherwise be specified by the Company) to document the conception and/or first actual\nreduction to practice of any Development. The Employee will not disclose any Development to any third party without the express written\npermission of an authorized officer of the Company, and all Developments will be treated by the Employee as Confidential Information. Such\nwritten records will be available to and remain the sole property of the Company at all times.\nThe Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all of his/her\nright, title and interest in and to all Developments and all related patents, copyrights, trademarks, trade names, and other industrial and\nintellectual property rights, and all applications therefor, in the United States and elsewhere. However, this Section 2(c) will not apply to\nDevelopments which do not relate to the business or research and development conducted or planned to be conducted by the Company at the\ntime such Development is created, made, conceived or reduced to practice and which are made and conceived by the Employee not during\nnormal working hours, not on the Company’s premises and not using the Company’s tools, devices, equipment or Confidential Information.\nThe Employee understands that, to the extent this Agreement will be construed in accordance with the laws of any state which precludes a\nrequirement in an employee agreement to assign certain classes of inventions made by an employee, this Section 2(c) will be interpreted not to\napply to any invention which a court rules and/or the Company agrees falls within such classes.\n_3-\nd)\ne)\nb)\nd)\nThe Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with respect to the\nprocurement, maintenance and enforcement of patents, copyrights, trademarks, trade names and other industrial and intellectual property rights\n(both in the United States and foreign countries) relating to Developments. The Employee hereby appoints any officer of the Company as the\nEmployee’s duly authorized attorney to execute, file, prosecute and protect any Development and related patent, copyright, trademark, trade\nname and other industrial and intellectual property right, and applications therefor, before any government agency, court or authority. Upon the\nrequest of the Company, the Employee will execute such further assignments, documents and other instruments as may be necessary, desirable\nor appropriate to fully and completely assign all Developments to the Company and assist the Company in applying for, obtaining and\nenforcing patents, copyrights or other rights in the United States and in any foreign jurisdiction with respect to any Development. The\nEmployee also hereby waives all claims to moral rights in any Developments.\nThe Employee acknowledges that the Company from time to time may have agreements with other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of\nwork under such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\nOther Agreements\nThe Employee agrees to devote his/her best efforts to the services of the Company in such capacity as the Company from time to time shall\ndirect and agrees to comply with the Company’s rules, policies, and practices at all times.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the\nterms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or\nproprietary information in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the\nbusiness of such previous employer or any other party or to refrain from soliciting employees, customers or suppliers of such previous\nemployer or other party. The Employee further represents that his/her performance of all the terms of this Agreement and the performance of\nhis/her duties as an employee of the Company do not and will not breach any agreement with any prior employer or other party to which the\nEmployee is a party (including without limitation any nondisclosure or non-competition agreement), and that the Employee will not disclose to\nthe Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or\nother third party.\nThe Employee agrees that for a period of one year after the termination or cessation of his/her employment for any reason, whether voluntary\nor involuntary, the Employee will inform his/her potential or actual future employers of his/her obligations under this Agreement, including\nSections 1 and 4.\nThe Employee specifically authorizes the Company to notify any subsequent employers or prospective employers of the Employee of the\nrestrictions on the Employee contained in this Agreement and of any concerns the Company may have about actual or possible conduct by the\nEmployee that may be in breach of this Agreement.\n_4-\n{4. [In the event that the Employee believes that employment otherwise in violation of this Agreement would not harm the Company’s legitimate\nbusiness interests, the Employee may request the Company to waive certain of the restrictions contained in this Agreement. Any such request\nshall be made in writing to the Company’s Managing Director, Human Resources and shall identify the business with which the Employee\nseeks to associate and describe the duties that the Employee seeks to perform. The Company has the sole discretion whether to grant such a\nwaiver, and no waiver of any restrictions under this Agreement shall be effective unless in writing and signed by the Managing Director,\nHuman Resources of the Company.]°\nNon-Competition and Non-Solicitation\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such employment for any reason, whether voluntary or involuntary, the Employee will not directly or indirectly: a)\nb)\nengage or assist others in engaging in any business or enterprise [in the United States]® [in any state in which the Employee has performed any\nservices for the Company at any time during his or her employment]” (whether as owner, partner, joint venturer, officer, director, employee,\nconsultant, contractor, investor, lender or otherwise, except as the holder of not more than 1% of the outstanding stock of a publicly-held\ncompany) that competes or intends to compete in any way with the department, division or unit of the Company (i) for which the Employee\nworked, (ii) for which the Employee performed services, or (iii) about which the Employee had access to Confidential Information in the\ncourse of his/her employment with the Company;\non his/her own behalf or on behalf of any third person or entity, and whether through his/her own efforts or by assisting any other person or\nentity (including, any person employed by or associated with any entity with whom the Employee becomes employed or associated)\n(i) participate in the solicitation for employment, attempt to hire or hiring of any person or entity employed or otherwise retained or engaged\nby the Company, (ii) hire, employ or engage any person or entity employed or otherwise retained or engaged by the Company or\n(iii) encourage or induce any person employed or otherwise retained or engaged by the Company to terminate his/her employment,\nconsultancy or other relationship with the Company; provided, that this Section 4(b) will not apply to the solicitation, hiring or engagement of\nany person or entity whose employment or engagement with the Company has been terminated for a period of six months or longer; and\non his/her own behalf or on behalf of any third person or entity, and whether through his/her own efforts or by assisting any other person or\nentity (including, any person employed by or associated with any entity with whom the Employee becomes employed or associated), induce or\nattempt to induce (including, without limitation, by soliciting business from or performing services for) any customer, client, supplier,\nconsultant, licensee or business relation of the Company (i) to cease doing business with the Company, (ii) to reduce the level of business\nhe/she/it performs with the Company, or (iii) to divert marketing or other resources away from the Company.\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\nApplicable exclusively to agreements entered into by non-staff, non-Sales department employees of FMD and TMS.\nApplicable exclusively to agreements entered into by non-staff, Sales department employees of FMD and TMS.\n_5.\nIn addition, for a period of one year after the termination or cessation of the Employee’s employment with the Company for any reason, whether\nvoluntary or involuntary, the Employee will not directly or indirectly solicit or accept any financial services-related business (other than personal or\nhousehold financial services) from (i) any person or entity that was a client or customer of the Company at the date of any cessation or termination of\nthe Employee’s employment, if the Employee was introduced to or interacted with such client or customer regarding the Company’s business or\n(ii) any person or entity that was a prospect of the Company at any time during the 12 months immediately prior to the date of any cessation or\ntermination of the Employee’s employment, if the Employee directly solicited such prospect or if the Employee directly or indirectly, in whole or in\npart, supervised or participated in solicitation activities related to such prospect.} 8\n[4. Non-Solicitation\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such employment for any reason,\nwhether voluntary or involuntary, the Employee will not directly or indirectly, on his/her own behalf or on behalf of any third person or entity, and\nwhether through his/her own efforts or by assisting any other person or entity (including any person employed by or associated with any entity with\nwhom the Employee becomes employed or associated): (a) participate in the solicitation for employment, attempt to hire or hiring of any person or\nentity employed or otherwise retained or engaged by the Company, (b) hire, employ or engage any person or entity employed or otherwise retained\nor engaged by the Company or (c) encourage or induce any person employed or otherwise retained or engaged by the Company to terminate his/her\nemployment, consultancy or other relationship with the Company; provided, that this Section 4 will not apply to the solicitation, hiring or\ngngagement of any person or entity whose employment or engagement with the Company has been terminated for a period of six months or longer.]\n5. No Employment Contract\nThe Employee understands that this Agreement does not constitute a contract of employment and does not alter the at-will nature of the Employee’s\nemployment with the Company or otherwise imply that his/her employment will continue for any period of time. The Employee understands that\nboth the Employee and the Company may end the employment relationship at any time and for any reason.\n6. Miscellaneous\na)  The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this\nAgreement.\nb)  If the Employee violates the provisions of Section 4, the Employee will continue to be bound by the restrictions set forth in Section 4 until a\nperiod of one year has expired without any violation of such provisions.\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\nApplicable exclusively to agreements entered into by staff level employees of FMD and TMS.\n-6-\nd)\ne)\ng\nh)\n10\n11\nIf any restriction set forth in Section 4 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a\nperiod of time or over too great a range of activities [or in too broad a geographic area]l9, it will be interpreted to extend only over the\nmaximum period of time, range of activities [or geographic area]!! as to which it may be enforceable.\nThis Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject matter of this\nAgreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed by the\nEmployee and the Company. The Employee agrees that any change or changes in his/her duties, authority, salary or compensation after the\nsigning of this Agreement will not affect the validity or scope of this Agreement.\nThis Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the Company and its\nsuccessors and assigns.\nNo delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right. A\nwaiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or waiver\nof any right on any other occasion.\nThe Employee agrees that the obligations and restrictions contained in this Agreement, including the covenants contained in Sections 1, 2 and\n4, are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such\npurpose. The Employee agrees that any breach or threatened breach of this Agreement by the Employee is likely to cause the Company not\nonly financial harm, but substantial and irrevocable damage which is difficult to measure and for which money damages alone will not provide\nan adequate remedy. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to\nsuch other remedies which may be available, will be entitled to enforce the specific performance of the provisions of this Agreement by the\nEmployee and will have the right to both temporary and permanent injunctive relief (to the extent permitted by law), without the necessity of\nproving actual damages or posting any surety or bond, from a court restraining such a breach or threatened breach, and the Employee hereby\nwaives the adequacy of a remedy at law as a defense to such relief. If the Employee breaches any of the covenants set forth in this Agreement,\nhe/she agrees to pay all reasonable costs (including attorneys’ fees) incurred by the Company in establishing that breach and in otherwise\nenforcing any of the covenants or provisions of this Agreement.\nThis Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the Commonwealth of\nMassachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced\nto resolve any matter arising under or relating to any provision of this Agreement will be commenced only in a court of the Commonwealth of\nMassachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each consents to the\nexclusive jurisdiction of such a court. Both the Employee and the Company waive the right to a trial by jury with respect to any matter arising\nunder or relating to any provision of this Agreement or otherwise related to the Employee’s employment with the Company or the termination\nof the Employee’s employment with the Company.\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\n_7-\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nTHE FIRST MARBLEHEAD CORPORATION\nBy:\nJo-Ann Burnham\nManaging Director, Human Resources\nEMPLOYEE\nName:\nDate:	EX-10.9 3 d210918dex109.htm FORM OF INVENTION, NON-DISCLOSURE, NON-COMPETITION AND NON-\nSOLICITATION AGREEMENT\nExhibit 10.9\nLOGO\nThe following is the form of Invention, Non-Disclosure, Non-Competition and Non-Solicitation Agreement entered into by new and existing\nemployees of The First Marblehead Corporation ("FMD") and its subsidiary, Tuition Management Systems LLC ("TMS"). There are variations\nin\nthe provisions of this agreement based upon an employee's position at FMD or TMS, as applicable; accordingly, those differences have been\nidentified in brackets and referenced in the accompanying footnotes.\nINVENTION, NON-DISCLOSURE, [NON-COMPETITION] AND NON-SOLICITATION AGREEMENT\nThis Agreement is made this\nday of\n2011 between The First Marblehead Corporation, a Delaware corporation (hereinafter\nreferred to collectively with its direct and indirect subsidiaries and affiliates as the "Company"), and\n(the "Employee"). [For the avoidance of doubt, references to the Company in this Agreement include FM Systems\nLLC (d/b/a Tuition Management Systems LLC), except where the context otherwise requires.]\nIn consideration of the [initial and] continued employment of the Employee by the Company, and [consideration to be received by Employee]4 the\nreceipt and sufficiency of which is hereby acknowledged by the Employee, the Company and the Employee agree as follows:\n1.\nConfidential Information\na)\nThe Employee agrees that his or her employment with the Company has created a relationship of trust and confidence between the Employee\nand the Company, and the protection of the Company's proprietary and Confidential Information (as defined in Section 1(b) below) and its\ngoodwill is critical to the Company's survival and success. The Employee further represents and agrees that he/she (i) has held and will hold\nall Confidential Information in strict trust and confidence, and (ii) has not disclosed or used, and will not disclose or use at any time, any\nConfidential Information without the prior written consent of an authorized officer of the Company, except to the extent necessary in the\nordinary course of performing his/her duties as an employee of the Company and solely in furtherance of the interests of the Company.\nb)\nFor purposes of this Agreement, the term "Confidential Information" means all information, knowledge or data, in any form or media,\nbelonging or relating to the Company (including securitization trusts) or former or current clients of the Company, which is of value to the\nCompany and the disclosure of which could result in competitive or other disadvantage to the Company. Confidential Information is and shall\nbe the exclusive property of the Company and includes, but is not limited to: (i) the Company's documents, records, communications, reports,\nforecasts, projections, product and service specifications, statistical models, formulae and\n1\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\n2\nApplicable exclusively to agreements entered into by new and existing employees of TMS.\n3\nApplicable exclusively to agreements entered into by new employees of FMD and TMS.\n4\nProvision reflects consideration specific to each employee's individual agreement with FMD.\n1\nalgorithms, tools, designs, pricing methods and policies, processes, methods of operation, techniques, arrangements, procedures, current and\nplanned distribution methods and processes, strategic initiatives, business opportunities and strategies, creative plans and strategies, personnel\ninformation, policies, trade secrets, ideas, concepts, know-how, intangible rights, inventions, research and development, source code, systems,\narchitecture, computer programs and database technologies; (ii) information belonging or relating to the Company's former or current\ncustomers, clients, service providers, consultants and other business relations, including the existence or status of, and any non-public\ninformation concerning, discussions between the Company and former, current, or prospective clients; (iii) the Company's non-public\nbusiness, operational or financial results, including the performance of any loan portfolio facilitated by the Company, product development\ninitiatives, expansion plans and revenue and expense information; and (iv) information belonging or relating to any third party. In addition, the\nterm Confidential Information includes any notes, analyses, compilations, abstracts, studies, interpretations, memoranda or other documents\nthat contain, reflect or are based upon, in whole or in part, any Confidential Information, whether created by the Employee or others.\nConfidential Information includes information developed by the Employee in the course of his/her employment with the Company, as well as\nother information to which the Employee has or will have access during the period of his/her employment with the Company, including the\nconfidential information of others with whom the Company has a business relationship The absence of any marking or statement that any\nparticular information is Confidential Information will not affect its status as Confidential Information.\nc)\nConfidential Information will not include information which is or becomes generally known to the public through no fault of any person. In\naddition, nothing in this Agreement is intended to or shall preclude the Employee from providing truthful testimony or providing truthful\ninformation in response to a valid subpoena, court order or request of any federal, state or local authority, quasi-regulatory or self-governing\nauthority, provided, to the extent permitted by law, the Employee has provided to the Company as much advance notice as practicable of any\nsuch compelled disclosure. The Employee further agrees to cooperate with the Company, at the Company's cost, to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such governing\nauthority.\nd)\nThe Employee agrees that all materials, in any form or media, that contain, reflect or are based upon, in whole or in part, Confidentia\nInformation, whether created by the Employee or others, which have or will come into his/her custody or possession, are and will be the\nexclusive property of the Company to be used by the Employee only in the performance of his/her duties for the Company. All such tangible\nand intangible materials, and all copies, abstracts, compilations or reproductions thereof, and all property and equipment of the Company\nin\nthe\ncustody or possession of the Employee will be left intact by the Employee and delivered to the Company, upon the earlier of (i) a request by\nthe Company or (ii) termination of his/her employment, whether voluntary or involuntary. After such delivery, the Employee will not retain\nany such tangible or intangible materials, or copies, abstracts, compilations or reproductions thereof, or any such property. For the avoidance\nof doubt, in connection with the voluntary or involuntary termination of his/her employment, the Employee agrees to leave intact all such\ntangible and intangible materials, including electronic documents of the Company, except in accordance with the Company's document\nretention policies.\n2\ne)\nThe Employee agrees that his/her obligations not to disclose or use Confidential Information as set forth in Sections 1(a) and (d) above, and\nhis/her obligations to return and leave intact tangible and intangible materials as set forth in Section 1(d) above, also extends to such types of\ninformation, materials and tangible property of former or current clients or customers of the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2. Developments\na)\nAll Developments (as defined below) that are made, conceived, reduced to practice, created, written, designed or developed by the Employee\nor under his/her direction or jointly with others, whether or not during normal working hours or on the premises of the Company, (i) during the\nperiod of the Employee's employment with the Company if related to the business or research and development conducted or planned to be\nconducted by the Company and (ii) after the period of the Employee's employment with the Company if resulting or directly derived from\nConfidential Information, will be the sole property of the Company. For purposes of this Agreement, the term "Developments" means any\ninventions, discoveries, computer programs, source code, data, technology, designs, statistical models, formulae and algorithms, tools,\ninnovations, improvements, methods, techniques, developments and works of authorship, whether or not patentable and whether or not\ncopyrightable.\nb)\nThe Employee will make full and prompt disclosure to the Company of all Developments and will maintain adequate and current written\nrecords (in the form of notes, memoranda and as may otherwise be specified by the Company) to document the conception and/or first actual\nreduction to practice of any Development. The Employee will not disclose any Development to any third party without the express written\npermission of an authorized officer of the Company, and all Developments will be treated by the Employee as Confidential Information. Such\nwritten records will be available to and remain the sole property of the Company at all times.\nc)\nThe Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all of his/her\nright, title and interest in and to all Developments and all related patents, copyrights, trademarks, trade names, and other industrial and\nintellectual property rights, and all applications therefor, in the United States and elsewhere. However, this Section 2(c) will not apply to\nDevelopments which do not relate to the business or research and development conducted or planned to be conducted by the Company at the\ntime such Development is created, made, conceived or reduced to practice and which are made and conceived by the Employee not during\nnormal working hours, not on the Company's premises and not using the Company's tools, devices, equipment or Confidential Information.\nThe Employee understands that, to the extent this Agreement will be construed in accordance with the laws of any state which precludes a\nrequirement in an employee agreement to assign certain classes of inventions made by an employee, this Section 2(c) will be interpreted not to\napply to any invention which a court rules and/or the Company agrees falls within such classes.\n3\nd) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with respect to the\nprocurement, maintenance and enforcement of patents, copyrights, trademarks, trade names and other industrial and intellectual property rights\n(both in the United States and foreign countries) relating to Developments. The Employee hereby appoints any officer of the Company as the\nEmployee's duly authorized attorney to execute, file, prosecute and protect any Development and related patent, copyright, trademark, trade\nname and other industrial and intellectual property right, and applications therefor, before any government agency, court or authority. Upon the\nrequest of the Company, the Employee will execute such further assignments, documents and other instruments as may be necessary, desirable\nor\nappropriate to fully and completely assign all Developments to the Company and assist the Company in applying for, obtaining and\nenforcing patents, copyrights or other rights in the United States and in any foreign jurisdiction with respect to any Development. The\nEmployee also hereby waives all claims to moral rights in any Developments.\ne)\nThe Employee acknowledges that the Company from time to time may have agreements with other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of\nwork under such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n3.\nOther Agreements\na)\nThe Employee agrees to devote his/her best efforts to the services of the Company in such capacity as the Company from time to time shall\ndirect and agrees to comply with the Company's rules, policies, and practices at all times.\nb)\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the\nterms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or\nproprietary information in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the\nbusiness of such previous employer or any other party or to refrain from soliciting employees, customers or suppliers of such previous\nemployer or other party. The Employee further represents that his/her performance of all the terms of this Agreement and the performance of\nhis/her duties as an employee of the Company do not and will not breach any agreement with any prior employer or other party to which the\nEmployee is a party (including without limitation any nondisclosure or non-competition agreement), and that the Employee will not disclose\nto\nthe Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or\nother third party.\nc)\nThe Employee agrees that for a period of one year after the termination or cessation of his/her employment for any reason, whether voluntary\nor involuntary, the Employee will inform his/her potential or actual future employers of his/her obligations under this Agreement, including\nSections 1 and 4.\nd)\nThe Employee specifically authorizes the Company to notify any subsequent employers or prospective employers of the Employee of the\nrestrictions on the Employee contained in this Agreement and of any concerns the Company may have about actual or possible conduct\nby\nthe\nEmployee that may be in breach of this Agreement.\n4\ne)\n[In the event that the Employee believes that employment otherwise in violation of this Agreement would not harm the Company's legitimate\nbusiness interests, the Employee may request the Company to waive certain of the restrictions contained in this Agreement. Any such request\nshall be made in writing to the Company's Managing Director, Human Resources and shall identify the business with which the Employee\nseeks to associate and describe the duties that the Employee seeks to perform. The Company has the sole discretion whether to grant such a\nwaiver, and no waiver of any restrictions under this Agreement shall be effective unless in writing and signed by the Managing Director,\nHuman Resources of the Company.]5\n{4. Non-Competition and Non-Solicitation\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such employment for any reason,\nwhether voluntary or involuntary, the Employee will not directly or indirectly:\na)\nengage or assist others in engaging in any business or enterprise [in the United States] [in any state in which the Employee has performed any\nservices for the Company at any time during his or her employment]7 (whether as owner, partner, joint venturer, officer, director, employee,\nconsultant, contractor, investor, lender or otherwise, except as the holder of not more than 1% of the outstanding stock of a publicly-held\ncompany) that competes or intends to compete in any way with the department, division or unit of the Company (i) for which the Employee\nworked, (ii) for which the Employee performed services, or (iii) about which the Employee had access to Confidential Information in the\ncourse of his/her employment with the Company;\nb)\non his/her own behalf or on behalf of any third person or entity, and whether through his/her own efforts or by assisting any other person or\nentity (including, any person employed by or associated with any entity with whom the Employee becomes employed or associated)\n(i) participate in the solicitation for employment, attempt to hire or hiring of any person or entity employed or otherwise retained or engaged\nby the Company, (ii) hire, employ or engage any person or entity employed or otherwise retained or engaged by the Company or\n(iii) encourage or induce any person employed or otherwise retained or engaged by the Company to terminate his/her employment,\nconsultancy or other relationship with the Company; provided, that this Section 4(b) will not apply to the solicitation, hiring or engagement\nof\nany person or entity whose employment or engagement with the Company has been terminated for a period of six months or longer; and\nc)\non his/her own behalf or on behalf of any third person or entity, and whether through his/her own efforts or by assisting any other person or\nentity (including, any person employed by or associated with any entity with whom the Employee becomes employed or associated), induce or\nattempt to induce (including, without limitation, by soliciting business from or performing services for) any customer, client, supplier,\nconsultant, licensee or business relation of the Company (i) to cease doing business with the Company, (ii) to reduce the level of business\nhe/she/it performs with the Company, or (iii) to divert marketing or other resources away from the Company.\n5\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\n6\nApplicable exclusively to agreements entered into by non-staff, non-Sales department employees of FMD and TMS.\n7\nApplicable exclusively to agreements entered into by non-staff, Sales department employees of FMD and TMS.\n5\nIn addition, for a period of one year after the termination or cessation of the Employee's employment with the Company for any reason, whether\nvoluntary or involuntary, the Employee will not directly or indirectly solicit or accept any financial services-related business (other than personal\nor\nhousehold financial services) from (i) any person or entity that was a client or customer of the Company at the date of any cessation or termination of\nthe Employee's employment, if the Employee was introduced to or interacted with such client or customer regarding the Company's business\nor\n(ii) any person or entity that was a prospect of the Company at any time during the 12 months immediately prior to the date of any cessation or\ntermination of the Employee's employment, if the Employee directly solicited such prospect or if the Employee directly or indirectly, in whole or\nin\npart, supervised or participated in solicitation activities related to such prospect.} 8\n[4. Non-Solicitation\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such employment for any reason,\nwhether voluntary or involuntary, the Employee will not directly or indirectly, on his/her own behalf or on behalf of any third person or entity, and\nwhether through his/her own efforts or by assisting any other person or entity (including any person employed by or associated with any entity with\nwhom the Employee becomes employed or associated): (a) participate in the solicitation for employment, attempt to hire or hiring of any person or\nentity employed or otherwise retained or engaged by the Company, (b) hire, employ or engage any person or entity employed or otherwise retained\nor engaged by the Company or (c) encourage or induce any person employed or otherwise retained or engaged by the Company to terminate his/her\nemployment, consultancy or other relationship with the Company; provided, that this Section 4 will not apply to the solicitation, hiring or\nengagement of any person or entity whose employment or engagement with the Company has been terminated for a period of six months or longer.]\n9\n5.\nNo Employment Contract\nThe Employee understands that this Agreement does not constitute a contract of employment and does not alter the at-will nature of the Employee's\nemployment with the Company or otherwise imply that his/her employment will continue for any period of time. The Employee understands that\nboth the Employee and the Company may end the employment relationship at any time and for any reason.\n6. Miscellaneous\na)\nThe invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this\nAgreement.\nb)\nIf the Employee violates the provisions of Section 4, the Employee will continue to be bound by the restrictions set forth in Section 4 until a\nperiod of one year has expired without any violation of such provisions.\n8\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\n9\nApplicable exclusively to agreements entered into by staff level employees of FMD and TMS.\n6\nc)\nIf any restriction set forth in Section 4 is found by any court of competent jurisdiction to be unenforceable because it extends for too long\na\nperiod of time or over too great a range of activities [or in too broad a geographic area]10 it will be interpreted to extend only over the\nmaximum period of time, range of activities [or geographic area]1l as to which it may be enforceable.\nd)\nThis Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject matter of this\nAgreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed\nby\nthe\nEmployee and the Company. The Employee agrees that any change or changes in his/her duties, authority, salary or compensation after the\nsigning of this Agreement will not affect the validity or scope of this Agreement.\ne)\nThis Agreement will be binding upon the Employee's heirs, executors and administrators and will inure to the benefit of the Company and its\nsuccessors and assigns.\nf)\nNo delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right. A\nwaiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or waiver\nof any right on any other occasion.\ng)\nThe Employee agrees that the obligations and restrictions contained in this Agreement, including the covenants contained in Sections 1, 2 and\n4, are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such\npurpose. The Employee agrees that any breach or threatened breach of this Agreement by the Employee is likely to cause the Company not\nonly financial harm, but substantial and irrevocable damage which is difficult to measure and for which money damages alone will not provide\nan adequate remedy. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to\nsuch other remedies which may be available, will be entitled to enforce the specific performance of the provisions of this Agreement by the\nEmployee and will have the right to both temporary and permanent injunctive relief (to the extent permitted by law), without the necessity of\nproving actual damages or posting any surety or bond, from a court restraining such a breach or threatened breach, and the Employee hereby\nwaives the adequacy of a remedy at law as a defense to such relief. If the Employee breaches any of the covenants set forth in this Agreement,\nhe/she agrees to pay all reasonable costs (including attorneys' fees) incurred by the Company in establishing that breach and in otherwise\nenforcing any of the covenants or provisions of this Agreement.\nh)\nThis Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the Commonwealth of\nMassachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced\nto resolve any matter arising under or relating to any provision of this Agreement will be commenced only in a court of the Commonwealth of\nMassachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each consents to the\nexclusive jurisdiction of such a court. Both the Employee and the Company waive the right to a trial by jury with respect to any matter arising\nunder or relating to any provision of this Agreement or otherwise related to the Employee's employment with the Company or the termination\nof the Employee's employment with the Company.\n10\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\n11\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\n7\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nTHE FIRST MARBLEHEAD CORPORATION\nBy:\nJo-Ann Burnham\nManaging Director, Human Resources\nEMPLOYEE\nName:\nDate:\n8 -	EX-10.9 3 d210918dex109.htm FORM OF INVENTION, NON-DISCLOSURE, NON-COMPETITION AND NON-\nSOLICITATION AGREEMENT\nExhibit 10.9\nLOGO\nThe following is the form of Invention, Non-Disclosure, Non-Competition and Non-Solicitation Agreement entered into by new and existing\nemployees of The First Marblehead Corporation (“FMD”) and its subsidiary, Tuition Management Systems LLC (“TMS”). There are variations in\nthe provisions of this agreement based upon an employee’s position at FMD or TMS, as applicable; accordingly, those differences have been\nidentified in brackets and referenced in the accompanying footnotes.\nINVENTION, NON-DISCLOSURE, [NON-COMPETITION] AND NON-SOLICITATION AGREEMENT\nThis Agreement is made this\nday of\n, 2011 between The First Marblehead Corporation, a Delaware corporation (hereinafter\nreferred to collectively with its direct and indirect subsidiaries and affiliates as the “Company”), and\n(the “Employee”). [For the avoidance of doubt, references to the Company in this Agreement include FM Systems\nLLC (d/b/a Tuition Management Systems LLC), except where the context otherwise requires.]\nIn consideration of the [initial and] continued employment of the Employee by the Company, and [consideration to be received by Employee] , the\nreceipt and sufficiency of which is hereby acknowledged by the Employee, the Company and the Employee agree as follows:\n1. Confidential Information\na) The Employee agrees that his or her employment with the Company has created a relationship of trust and confidence between the Employee\nand the Company, and the protection of the Company’s proprietary and Confidential Information (as defined in Section 1(b) below) and its\ngoodwill is critical to the Company’s survival and success. The Employee further represents and agrees that he/she (i) has held and will hold\nall Confidential Information in strict trust and confidence, and (ii) has not disclosed or used, and will not disclose or use at any time, any\nConfidential Information without the prior written consent of an authorized officer of the Company, except to the extent necessary in the\nordinary course of performing his/her duties as an employee of the Company and solely in furtherance of the interests of the Company.\nb) For purposes of this Agreement, the term “Confidential Information” means all information, knowledge or data, in any form or media,\nbelonging or relating to the Company (including securitization trusts) or former or current clients of the Company, which is of value to the\nCompany and the disclosure of which could result in competitive or other disadvantage to the Company. Confidential Information is and shall\nbe the exclusive property of the Company and includes, but is not limited to: (i) the Company’s documents, records, communications, reports,\nforecasts, projections, product and service specifications, statistical models, formulae and\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\nApplicable exclusively to agreements entered into by new and existing employees of TMS.\nApplicable exclusively to agreements entered into by new employees of FMD and TMS.\nProvision reflects consideration specific to each employee’s individual agreement with FMD.\n-1-\n1\n2\n3\n4\n1\n2\n3\n4\nalgorithms, tools, designs, pricing methods and policies, processes, methods of operation, techniques, arrangements, procedures, current and\nplanned distribution methods and processes, strategic initiatives, business opportunities and strategies, creative plans and strategies, personnel\ninformation, policies, trade secrets, ideas, concepts, know-how, intangible rights, inventions, research and development, source code, systems,\narchitecture, computer programs and database technologies; (ii) information belonging or relating to the Company’s former or current\ncustomers, clients, service providers, consultants and other business relations, including the existence or status of, and any non-public\ninformation concerning, discussions between the Company and former, current, or prospective clients; (iii) the Company’s non-public\nbusiness, operational or financial results, including the performance of any loan portfolio facilitated by the Company, product development\ninitiatives, expansion plans and revenue and expense information; and (iv) information belonging or relating to any third party. In addition, the\nterm Confidential Information includes any notes, analyses, compilations, abstracts, studies, interpretations, memoranda or other documents\nthat contain, reflect or are based upon, in whole or in part, any Confidential Information, whether created by the Employee or others.\nConfidential Information includes information developed by the Employee in the course of his/her employment with the Company, as well as\nother information to which the Employee has or will have access during the period of his/her employment with the Company, including the\nconfidential information of others with whom the Company has a business relationship. The absence of any marking or statement that any\nparticular information is Confidential Information will not affect its status as Confidential Information.\nc) Confidential Information will not include information which is or becomes generally known to the public through no fault of any person. In\naddition, nothing in this Agreement is intended to or shall preclude the Employee from providing truthful testimony or providing truthful\ninformation in response to a valid subpoena, court order or request of any federal, state or local authority, quasi-regulatory or self-governing\nauthority, provided, to the extent permitted by law, the Employee has provided to the Company as much advance notice as practicable of any\nsuch compelled disclosure. The Employee further agrees to cooperate with the Company, at the Company’s cost, to obtain an appropriate\nprotective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such governing\nauthority.\nd) The Employee agrees that all materials, in any form or media, that contain, reflect or are based upon, in whole or in part, Confidential\nInformation, whether created by the Employee or others, which have or will come into his/her custody or possession, are and will be the\nexclusive property of the Company to be used by the Employee only in the performance of his/her duties for the Company. All such tangible\nand intangible materials, and all copies, abstracts, compilations or reproductions thereof, and all property and equipment of the Company in the\ncustody or possession of the Employee will be left intact by the Employee and delivered to the Company, upon the earlier of (i) a request by\nthe Company or (ii) termination of his/her employment, whether voluntary or involuntary. After such delivery, the Employee will not retain\nany such tangible or intangible materials, or copies, abstracts, compilations or reproductions thereof, or any such property. For the avoidance\nof doubt, in connection with the voluntary or involuntary termination of his/her employment, the Employee agrees to leave intact all such\ntangible and intangible materials, including electronic documents of the Company, except in accordance with the Company’s document\nretention policies.\n-2-\ne) The Employee agrees that his/her obligations not to disclose or use Confidential Information as set forth in Sections 1(a) and (d) above, and\nhis/her obligations to return and leave intact tangible and intangible materials as set forth in Section 1(d) above, also extends to such types of\ninformation, materials and tangible property of former or current clients or customers of the Company or other third parties who may have\ndisclosed or entrusted the same to the Company or to the Employee.\n2. Developments\na) All Developments (as defined below) that are made, conceived, reduced to practice, created, written, designed or developed by the Employee\nor under his/her direction or jointly with others, whether or not during normal working hours or on the premises of the Company, (i) during the\nperiod of the Employee’s employment with the Company if related to the business or research and development conducted or planned to be\nconducted by the Company and (ii) after the period of the Employee’s employment with the Company if resulting or directly derived from\nConfidential Information, will be the sole property of the Company. For purposes of this Agreement, the term “Developments” means any\ninventions, discoveries, computer programs, source code, data, technology, designs, statistical models, formulae and algorithms, tools,\ninnovations, improvements, methods, techniques, developments and works of authorship, whether or not patentable and whether or not\ncopyrightable.\nb) The Employee will make full and prompt disclosure to the Company of all Developments and will maintain adequate and current written\nrecords (in the form of notes, memoranda and as may otherwise be specified by the Company) to document the conception and/or first actual\nreduction to practice of any Development. The Employee will not disclose any Development to any third party without the express written\npermission of an authorized officer of the Company, and all Developments will be treated by the Employee as Confidential Information. Such\nwritten records will be available to and remain the sole property of the Company at all times.\nc) The Employee agrees to assign and does hereby assign to the Company (or any person or entity designated by the Company) all of his/her\nright, title and interest in and to all Developments and all related patents, copyrights, trademarks, trade names, and other industrial and\nintellectual property rights, and all applications therefor, in the United States and elsewhere. However, this Section 2(c) will not apply to\nDevelopments which do not relate to the business or research and development conducted or planned to be conducted by the Company at the\ntime such Development is created, made, conceived or reduced to practice and which are made and conceived by the Employee not during\nnormal working hours, not on the Company’s premises and not using the Company’s tools, devices, equipment or Confidential Information.\nThe Employee understands that, to the extent this Agreement will be construed in accordance with the laws of any state which precludes a\nrequirement in an employee agreement to assign certain classes of inventions made by an employee, this Section 2(c) will be interpreted not to\napply to any invention which a court rules and/or the Company agrees falls within such classes.\n-3-\nd) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with respect to the\nprocurement, maintenance and enforcement of patents, copyrights, trademarks, trade names and other industrial and intellectual property rights\n(both in the United States and foreign countries) relating to Developments. The Employee hereby appoints any officer of the Company as the\nEmployee’s duly authorized attorney to execute, file, prosecute and protect any Development and related patent, copyright, trademark, trade\nname and other industrial and intellectual property right, and applications therefor, before any government agency, court or authority. Upon the\nrequest of the Company, the Employee will execute such further assignments, documents and other instruments as may be necessary, desirable\nor appropriate to fully and completely assign all Developments to the Company and assist the Company in applying for, obtaining and\nenforcing patents, copyrights or other rights in the United States and in any foreign jurisdiction with respect to any Development. The\nEmployee also hereby waives all claims to moral rights in any Developments.\ne) The Employee acknowledges that the Company from time to time may have agreements with other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of\nwork under such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n3. Other Agreements\na) The Employee agrees to devote his/her best efforts to the services of the Company in such capacity as the Company from time to time shall\ndirect and agrees to comply with the Company’s rules, policies, and practices at all times.\nb) The Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by the\nterms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or\nproprietary information in the course of his/her employment with the Company, to refrain from competing, directly or indirectly, with the\nbusiness of such previous employer or any other party or to refrain from soliciting employees, customers or suppliers of such previous\nemployer or other party. The Employee further represents that his/her performance of all the terms of this Agreement and the performance of\nhis/her duties as an employee of the Company do not and will not breach any agreement with any prior employer or other party to which the\nEmployee is a party (including without limitation any nondisclosure or non-competition agreement), and that the Employee will not disclose to\nthe Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or\nother third party.\nc) The Employee agrees that for a period of one year after the termination or cessation of his/her employment for any reason, whether voluntary\nor involuntary, the Employee will inform his/her potential or actual future employers of his/her obligations under this Agreement, including\nSections 1 and 4.\nd) The Employee specifically authorizes the Company to notify any subsequent employers or prospective employers of the Employee of the\nrestrictions on the Employee contained in this Agreement and of any concerns the Company may have about actual or possible conduct by the\nEmployee that may be in breach of this Agreement.\n-4-\ne) [In the event that the Employee believes that employment otherwise in violation of this Agreement would not harm the Company’s legitimate\nbusiness interests, the Employee may request the Company to waive certain of the restrictions contained in this Agreement. Any such request\nshall be made in writing to the Company’s Managing Director, Human Resources and shall identify the business with which the Employee\nseeks to associate and describe the duties that the Employee seeks to perform. The Company has the sole discretion whether to grant such a\nwaiver, and no waiver of any restrictions under this Agreement shall be effective unless in writing and signed by the Managing Director,\nHuman Resources of the Company.]\n{4. Non-Competition and Non-Solicitation\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such employment for any reason,\nwhether voluntary or involuntary, the Employee will not directly or indirectly:\na)\nengage or assist others in engaging in any business or enterprise [in the United States] [in any state in which the Employee has performed any\nservices for the Company at any time during his or her employment] (whether as owner, partner, joint venturer, officer, director, employee,\nconsultant, contractor, investor, lender or otherwise, except as the holder of not more than 1% of the outstanding stock of a publicly-held\ncompany) that competes or intends to compete in any way with the department, division or unit of the Company (i) for which the Employee\nworked, (ii) for which the Employee performed services, or (iii) about which the Employee had access to Confidential Information in the\ncourse of his/her employment with the Company;\nb) on his/her own behalf or on behalf of any third person or entity, and whether through his/her own efforts or by assisting any other person or\nentity (including, any person employed by or associated with any entity with whom the Employee becomes employed or associated)\n(i) participate in the solicitation for employment, attempt to hire or hiring of any person or entity employed or otherwise retained or engaged\nby the Company, (ii) hire, employ or engage any person or entity employed or otherwise retained or engaged by the Company or\n(iii) encourage or induce any person employed or otherwise retained or engaged by the Company to terminate his/her employment,\nconsultancy or other relationship with the Company; provided, that this Section 4(b) will not apply to the solicitation, hiring or engagement of\nany person or entity whose employment or engagement with the Company has been terminated for a period of six months or longer; and\nc)\non his/her own behalf or on behalf of any third person or entity, and whether through his/her own efforts or by assisting any other person or\nentity (including, any person employed by or associated with any entity with whom the Employee becomes employed or associated), induce or\nattempt to induce (including, without limitation, by soliciting business from or performing services for) any customer, client, supplier,\nconsultant, licensee or business relation of the Company (i) to cease doing business with the Company, (ii) to reduce the level of business\nhe/she/it performs with the Company, or (iii) to divert marketing or other resources away from the Company.\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\nApplicable exclusively to agreements entered into by non-staff, non-Sales department employees of FMD and TMS.\nApplicable exclusively to agreements entered into by non-staff, Sales department employees of FMD and TMS.\n-5-\n5\n6\n7\n5\n6\n7\nIn addition, for a period of one year after the termination or cessation of the Employee’s employment with the Company for any reason, whether\nvoluntary or involuntary, the Employee will not directly or indirectly solicit or accept any financial services-related business (other than personal or\nhousehold financial services) from (i) any person or entity that was a client or customer of the Company at the date of any cessation or termination of\nthe Employee’s employment, if the Employee was introduced to or interacted with such client or customer regarding the Company’s business or\n(ii) any person or entity that was a prospect of the Company at any time during the 12 months immediately prior to the date of any cessation or\ntermination of the Employee’s employment, if the Employee directly solicited such prospect or if the Employee directly or indirectly, in whole or in\npart, supervised or participated in solicitation activities related to such prospect.}\n[4. Non-Solicitation\nWhile the Employee is employed by the Company and for a period of one year after the termination or cessation of such employment for any reason,\nwhether voluntary or involuntary, the Employee will not directly or indirectly, on his/her own behalf or on behalf of any third person or entity, and\nwhether through his/her own efforts or by assisting any other person or entity (including any person employed by or associated with any entity with\nwhom the Employee becomes employed or associated): (a) participate in the solicitation for employment, attempt to hire or hiring of any person or\nentity employed or otherwise retained or engaged by the Company, (b) hire, employ or engage any person or entity employed or otherwise retained\nor engaged by the Company or (c) encourage or induce any person employed or otherwise retained or engaged by the Company to terminate his/her\nemployment, consultancy or other relationship with the Company; provided, that this Section 4 will not apply to the solicitation, hiring or\nengagement of any person or entity whose employment or engagement with the Company has been terminated for a period of six months or longer.]\n5. No Employment Contract\nThe Employee understands that this Agreement does not constitute a contract of employment and does not alter the at-will nature of the Employee’s\nemployment with the Company or otherwise imply that his/her employment will continue for any period of time. The Employee understands that\nboth the Employee and the Company may end the employment relationship at any time and for any reason.\n6. Miscellaneous\na) The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this\nAgreement.\nb) If the Employee violates the provisions of Section 4, the Employee will continue to be bound by the restrictions set forth in Section 4 until a\nperiod of one year has expired without any violation of such provisions.\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\nApplicable exclusively to agreements entered into by staff level employees of FMD and TMS.\n-6-\n8\n9\n8\n9\nc) If any restriction set forth in Section 4 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a\nperiod of time or over too great a range of activities [or in too broad a geographic area] , it will be interpreted to extend only over the\nmaximum period of time, range of activities [or geographic area] as to which it may be enforceable.\nd) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the subject matter of this\nAgreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in writing signed by the\nEmployee and the Company. The Employee agrees that any change or changes in his/her duties, authority, salary or compensation after the\nsigning of this Agreement will not affect the validity or scope of this Agreement.\ne) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the Company and its\nsuccessors and assigns.\nf) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any other right. A\nwaiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or waiver\nof any right on any other occasion.\ng) The Employee agrees that the obligations and restrictions contained in this Agreement, including the covenants contained in Sections 1, 2 and\n4, are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such\npurpose. The Employee agrees that any breach or threatened breach of this Agreement by the Employee is likely to cause the Company not\nonly financial harm, but substantial and irrevocable damage which is difficult to measure and for which money damages alone will not provide\nan adequate remedy. Therefore, in the event of any such breach or threatened breach, the Employee agrees that the Company, in addition to\nsuch other remedies which may be available, will be entitled to enforce the specific performance of the provisions of this Agreement by the\nEmployee and will have the right to both temporary and permanent injunctive relief (to the extent permitted by law), without the necessity of\nproving actual damages or posting any surety or bond, from a court restraining such a breach or threatened breach, and the Employee hereby\nwaives the adequacy of a remedy at law as a defense to such relief. If the Employee breaches any of the covenants set forth in this Agreement,\nhe/she agrees to pay all reasonable costs (including attorneys’ fees) incurred by the Company in establishing that breach and in otherwise\nenforcing any of the covenants or provisions of this Agreement.\nh) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the Commonwealth of\nMassachusetts (without reference to the conflicts of laws provisions thereof). Any action, suit, or other legal proceeding which is commenced\nto resolve any matter arising under or relating to any provision of this Agreement will be commenced only in a court of the Commonwealth of\nMassachusetts (or, if appropriate, a federal court located within Massachusetts), and the Company and the Employee each consents to the\nexclusive jurisdiction of such a court. Both the Employee and the Company waive the right to a trial by jury with respect to any matter arising\nunder or relating to any provision of this Agreement or otherwise related to the Employee’s employment with the Company or the termination\nof the Employee’s employment with the Company.\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\nApplicable exclusively to agreements entered into by non-staff level employees of FMD and TMS.\n-7-\n10\n11\n10\n11\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nTHE FIRST MARBLEHEAD CORPORATION\nBy:\nJo-Ann Burnham\nManaging Director, Human Resources\nEMPLOYEE\nName:\nDate:\n-8-
+ccb7eab370b2a5ba987a2881da548e2b.pdf	effective_date jurisdiction party term	EX-99.D.2 13 d73402dex99d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nAOL INC.\nCONFIDENTIAL NON-DISCLOSURE AGREEMENT\nEffective Date: January 16, 2015\nIn order to induce the parties hereto to disclose certain\nConfidential Information (as described below) and to protect such\nConfidential Information, AOL Inc., with offices at 22000 AOL Way,\nDulles, Virginia 20166 (“AOL”) and Millennial Media Inc. with\noffices at COMPANY ADDRESS (the “Company”) hereby agree as\nfollows:\n1. Disclosing Party: AOL and the Company are sometimes\nreferred to herein separately as a “Party” and together as the\n“Parties.” The Party disclosing Confidential Information is\nsometimes referred to herein as “Discloser” and the Party in receipt\nof such Confidential Information is sometimes referred to herein as\n“Recipient.”\n2. Primary Representative: Each Party’s representative for\ncoordinating disclosure or receipt of Confidential Information is:\n(i) AOL: Mark Roszkowski, Senior Vice President, AOL Inc., 770\nBroadway, New York, NY 10003; and (ii) the Company: CONTACT\nNAME, CONTACT’S TITLE, Millennial Media Inc., COMPANY\nADDRESS.\n3. Description of Confidential Information: For purposes of\nthis Confidential Non-Disclosure Agreement (“Agreement”),\n“Confidential Information” means any information which is disclosed\nduring the Term (as defined below) and which (i) is or should be\nreasonably understood to be confidential or proprietary to Discloser\nor its Affiliates (as defined below) (such information may include\nwithout limitation information concerning Discloser’s business,\nproducts, services, content, finances, subscribers, users, tools, source\ncode, product designs and plans, customer lists and other marketing\nand technical information, the terms and existence of this Agreement,\nand other unpublished information) or (ii) is so designated by\nDiscloser by prominently marking it with a “confidential,”\n“proprietary” or similar legend. “Affiliate(s)” shall mean an entity\ncontrolling, controlled by or under common control with a Party.\n4. Use of Confidential Information: Recipient shall make use\nof the Confidential Information only for the purpose of discussing\nand evaluating a possible business relationship between the Parties\n(the “Transaction”), described more fully as follows: an investment in\nand/or acquisition of the Company by AOL. During the Term of this\nAgreement, neither Party shall disclose the existence or nature of this\nAgreement or the Transaction to any third party without the other\nParty’s prior written consent.\n5. Term: This Agreement shall terminate six (6) months after\nthe Effective Date (the “Term”), however Recipient’s obligations to\nprotect Confidential Information shall survive for two (2) years after\ntermination.\n6. Standard of Care: Recipient shall not use Confidential\nInformation for any purpose other than the intended use set forth in\nparagraph 4 above, and shall not disclose, disseminate or otherwise\npublish or communicate Confidential Information of the other Party\nto any person, firm, corporation or other third party without the prior\nwritten consent of Discloser, except to Recipient’s employees,\nconsultants, Affiliates and representatives who have a need to know,\nwho have been informed of Recipient’s obligations hereunder, and\nwho have previously agreed (e.g ., as a condition of their employment\nor agency) to be bound by terms regarding the protection of\nconfidential information that are substantially similar to those of this\nAgreement and which would extend to Discloser’s Confidential\nInformation. Recipient agrees to use the same degree of care that it\nuses to protect its own confidential information of a like nature from\nunauthorized disclosure, but in no event less than a reasonable degree\nof care.\n7. Exclusions: This Agreement imposes no obligation upon\nRecipient with respect to information that: (i) was in Recipient’s\npossession before receipt from Discloser; (ii) is or becomes a matter\nof public knowledge through no fault of Recipient; (iii) is rightfully\nreceived by Recipient from a third party without a duty of\nconfidentiality; (iv) represents general conceptual information (as\ncompared to, e.g ., specific technical or financial information, specific\nproduct offerings or specific product ideas) which is incidentally\nretained in the unaided memories of persons who have had access to\nthe Confidential Information; (v) is independently developed by\nRecipient without use of Discloser’s Confidential Information; (vi) is\ndisclosed under operation of law, provided that the Recipient will use\nreasonable efforts to provide Discloser with prompt written notice of\nany such requirement in order to enable Discloser to seek an\nappropriate protective order or other remedy, and that Recipient will\ndisclose only such information as is legally required and will use\nreasonable efforts to obtain confidential treatment for any\nConfidential Information that is so disclosed; or (vii) is disclosed by\nRecipient with Discloser ’s prior written approval.\n8. Warranty: Each Discloser warrants that it has the right to\nmake the disclosures under this Agreement. NO OTHER\nWARRANTIES ARE MADE BY EITHER PARTY UNDER\nTHIS\nConfidential\n-2-\nAGREEMENT. ANY INFORMATION EXCHANGED UNDER\nTHIS AGREEMENT IS PROVIDED “AS IS”.\n9. Other Business Activities: (a) Nothing in this Agreement\nwill be construed as a representation or agreement to restrict\nreassignment of Recipient’s employees, or in any manner affect or\nlimit either Party’s present or future business activities.\n(b) Nothing in this Agreement will be construed as a\nrepresentation or agreement that Recipient will not develop or have\ndeveloped for it products, concepts, systems or techniques that are\nsimilar to or compete with any such products, concepts, systems or\ntechniques described in the Confidential Information, provided that\nRecipient does not violate any of its obligations under this Agreement\nin connection with such development.\n(c) This Agreement does not create any agency or partnership\nrelationship. Nothing in this Agreement shall be construed as\nimplying any commitment or agreement by either Party to make an\ninvestment in the other Party or in any business of the other Party or\nto enter into any other business arrangement of any nature\nwhatsoever.\n10. Ownership and Other Rights: Neither Party acquires any\nintellectual property rights under this Agreement except the limited\nrights necessary to carry out the intended use set forth in paragraph 4\n(Use of Confidential Information) above.\n11. Return of Confidential Information: Recipient will, at\nRecipient’s option, return or destroy all tangible material embodying\nConfidential Information (in any form or medium and including,\nwithout limitation, all summaries, copies and excerpts of Confidential\nInformation) at any such time as Discloser may so request.\nNotwithstanding anything contained herein to the contrary, and\nsubject to the continuing confidentiality obligations set forth herein,\nRecipient (a) will not be obligated to erase Confidential Information\ncontained in archived computer system backups in accordance with\nRecipient’s security and/or disaster recovery procedures, and (b) may\nmaintain one copy of any Confidential Information in Recipient’s\nrecords as may be required by the regulations and rules of any\ngovernmental agency or other regulatory authority, including any\nself-regulatory organization having, or claiming to have, jurisdiction.\n12. Injunctive Relief: Recipient acknowledges that disclosure\nor use of Confidential Information in violation of this Agreement\ncould cause irreparable harm to Discloser for which monetary\ndamages may be difficult to ascertain or an inadequate remedy.\nRecipient therefore agrees that Discloser will have the right, in\naddition to its other rights and remedies, to seek injunctive relief for\nany violation of this Agreement.\n13. Nonwaiver: Any failure by either Party to enforce the other\nParty’s strict performance of any provision of this Agreement will not\nconstitute a waiver of its right to subsequently enforce such provision\nor any other provision of this Agreement.\n14. Miscellaneous: (a) Any notice, approval, request,\nauthorization, direction or other communication under this\nAgreement shall be given in writing and shall be deemed to have\nbeen delivered and given for all purposes (i) on the delivery date if\ndelivered personally to the Party to whom the same is directed;\n(ii) one (1) business day after deposit with a commercial overnight\ncarrier, with written verification of receipt, or (iii) five (5) business\ndays after the mailing date, whether or not actually received, if sent\nby U.S. mail, return receipt requested, postage and charges prepaid,\nor any other means of rapid mail delivery for which a receipt is\navailable. In the case of AOL, such notice will be provided to the\nDeputy General Counsel for Transactions, located at AOL Inc.,\n22000 AOL Way, Dulles, VA 20166. In the case of the Company,\nsuch notice will be provided to the Company Primary Representative\nidentified in paragraph 2 and the General Counsel, each located at the\naddress set forth in paragraph 2 above.\n(b) All additions or modifications to this Agreement must be\nmade in writing and signed by a duly authorized representative of\neach Party.\n(c) This Agreement shall be interpreted, construed and enforced\nin all respects in accordance with the laws of the State of New York\nexcept for its conflicts of laws principles. Each Party irrevocably\nconsents to the exclusive jurisdiction, forum and venue of the\nCommercial Division of the Supreme Court of the State of New\nYork, New York County and the United States District Court for the\nSouthern District of New York over any and all claims, disputes,\ncontroversies or disagreements between the Parties or any of their\nrespective subsidiaries, affiliates, successors and assigns under or\nrelated to this Agreement.\n(d) This Agreement may be executed in counterparts, each of\nwhich shall be deemed an original and both of which together shall\nconstitute one and the same document and such original signatures\nmay be delivered to the other Party by facsimile transmission or by\nemail.\nConfidential\n-3-\n(e) Neither Party shall assign or transfer any rights or\nobligations under this Agreement without the prior written consent of\nthe other Party; except that either Party may assign or transfer this\nAgreement to an Affiliate. Subject to the limitations set forth in this\nAgreement, this Agreement will inure to the benefit of and be\nbinding upon the Parties, their successors and assigns.\n(f) If any provision of this Agreement shall be held by a court of\ncompetent jurisdiction to be unenforceable, the remaining provisions\nshall remain in full force and effect.\n***\nAOL INC.\nBy: /s/ Mark Roszkowski\nName: Mark Roszkowski\nTitle: SVP, Head Corporate Development\nDate: 1/20/15\nMILLENNIAL MEDIA INC.\nBy: /s/ Michael Barrett\nName: Michael Barrett\nTitle: President & CEO\nDate: 1.19 .15	EX-99.D.2 13 d73402dex99d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nAOL INC. CONFIDENTIAL NON-DISCLOSURE AGREEMENT Effective Date: January 16, 2015\nIn order to induce the parties hereto to disclose certain\nConfidential Information (as described below) and to protect such\nConfidential Information, AOL Inc., with offices at 22000 AOL Way,\nDulles, Virginia 20166 (“AOL”) and Millennial Media Inc. with\noffices at COMPANY ADDRESS (the “Company”) hereby agree as\nfollows:\n1. Disclosing Party: AOL and the Company are sometimes\nreferred to herein separately as a “Party” and together as the\n“Parties.” The Party disclosing Confidential Information is\nsometimes referred to herein as “Discloser” and the Party in receipt\nof such Confidential Information is sometimes referred to herein as\n“Recipient.”\n2. Primary Representative: Each Party’s representative for\ncoordinating disclosure or receipt of Confidential Information is:\n(i) AOL: Mark Roszkowski, Senior Vice President, AOL Inc., 770\nBroadway, New York, NY 10003; and (ii) the Company: CONTACT\nNAME, CONTACT’S TITLE, Millennial Media Inc., COMPANY\nADDRESS.\n3. Description of Confidential Information: For purposes of\nthis Confidential Non-Disclosure Agreement (“Agreement”),\n“Confidential Information” means any information which is disclosed\nduring the Term (as defined below) and which (i) is or should be\nreasonably understood to be confidential or proprietary to Discloser\nor its Affiliates (as defined below) (such information may include\nwithout limitation information concerning Discloser’s business,\nproducts, services, content, finances, subscribers, users, tools, source\ncode, product designs and plans, customer lists and other marketing\nand technical information, the terms and existence of this Agreement,\nand other unpublished information) or (ii) is so designated by\nDiscloser by prominently marking it with a “confidential,”\n“proprietary” or similar legend. “Affiliate(s)” shall mean an entity\ncontrolling, controlled by or under common control with a Party.\n4. Use of Confidential Information: Recipient shall make use\nof the Confidential Information only for the purpose of discussing\nand evaluating a possible business relationship between the Parties\n(the “Transaction”), described more fully as follows: an investment in\nand/or acquisition of the Company by AOL. During the Term of this\nAgreement, neither Party shall disclose the existence or nature of this\nAgreement or the Transaction to any third party without the other\nParty’s prior written consent.\n5. Term: This Agreement shall terminate six (6) months after\nthe Effective Date (the “Term”), however Recipient’s obligations to\nprotect Confidential Information shall survive for two (2) years after\ntermination.\n6. Standard of Care: Recipient shall not use Confidential\nInformation for any purpose other than the intended use set forth in\nparagraph 4 above, and shall not disclose, disseminate or otherwise\npublish or communicate Confidential Information of the other Party\nto any person, firm, corporation or other third party without the prior\nwritten consent of Discloser, except to Recipient’s employees,\nconsultants, Affiliates and representatives who have a need to know,\nwho have been informed of Recipient’s obligations hereunder, and\nwho have previously agreed (e.g., as a condition of their employment\nor agency) to be bound by terms regarding the protection of\nconfidential information that are substantially similar to those of this\nAgreement and which would extend to Discloser’s Confidential\nInformation. Recipient agrees to use the same degree of care that it\nuses to protect its own confidential information of a like nature from\nunauthorized disclosure, but in no event less than a reasonable degree\nof care.\n7. Exclusions: This Agreement imposes no obligation upon\nRecipient with respect to information that: (i) was in Recipient’s\npossession before receipt from Discloser; (ii) is or becomes a matter\nof public knowledge through no fault of Recipient; (iii) is rightfully\nreceived by Recipient from a third party without a duty of\nconfidentiality; (iv) represents general conceptual information (as\ncompared to, e.g., specific technical or financial information, specific\nproduct offerings or specific product ideas) which is incidentally\nretained in the unaided memories of persons who have had access to\nthe Confidential Information; (v) is independently developed by\nRecipient without use of Discloser’s Confidential Information; (vi) is\ndisclosed under operation of law, provided that the Recipient will use\nreasonable efforts to provide Discloser with prompt written notice of\nany such requirement in order to enable Discloser to seek an\nappropriate protective order or other remedy, and that Recipient will\ndisclose only such information as is legally required and will use\nreasonable efforts to obtain confidential treatment for any\nConfidential Information that is so disclosed; or (vii) is disclosed by\nRecipient with Discloser’s prior written approval.\n8. Warranty: Each Discloser warrants that it has the right to\nmake the disclosures under this Agreement. NO OTHER\nWARRANTIES ARE MADE BY EITHER PARTY UNDER\nTHIS\nAGREEMENT. ANY INFORMATION EXCHANGED UNDER\nTHIS AGREEMENT IS PROVIDED “AS IS”.\n9. Other Business Activities: (a) Nothing in this Agreement\nwill be construed as a representation or agreement to restrict\nreassignment of Recipient’s employees, or in any manner affect or\nlimit either Party’s present or future business activities.\n(b) Nothing in this Agreement will be construed as a\nrepresentation or agreement that Recipient will not develop or have\ndeveloped for it products, concepts, systems or techniques that are\nsimilar to or compete with any such products, concepts, systems or\ntechniques described in the Confidential Information, provided that\nRecipient does not violate any of its obligations under this Agreement\nin connection with such development.\n(c) This Agreement does not create any agency or partnership\nrelationship. Nothing in this Agreement shall be construed as\nimplying any commitment or agreement by either Party to make an\ninvestment in the other Party or in any business of the other Party or\nto enter into any other business arrangement of any nature\nwhatsoever.\n10. Ownership and Other Rights: Neither Party acquires any\nintellectual property rights under this Agreement except the limited\nrights necessary to carry out the intended use set forth in paragraph 4\n(Use of Confidential Information) above.\n11. Return of Confidential Information: Recipient will, at\nRecipient’s option, return or destroy all tangible material embodying\nConfidential Information (in any form or medium and including,\nwithout limitation, all summaries, copies and excerpts of Confidential\nInformation) at any such time as Discloser may so request.\nNotwithstanding anything contained herein to the contrary, and\nsubject to the continuing confidentiality obligations set forth herein,\nRecipient (a) will not be obligated to erase Confidential Information\ncontained in archived computer system backups in accordance with\nRecipient’s security and/or disaster recovery procedures, and (b) may\nmaintain one copy of any Confidential Information in Recipient’s\nrecords as may be required by the regulations and rules of any\ngovernmental agency or other regulatory authority, including any\nself-regulatory organization having, or claiming to have, jurisdiction.\n12. Injunctive Relief: Recipient acknowledges that disclosure\nor use of Confidential Information in violation of this Agreement\ncould cause irreparable harm to Discloser for which monetary\ndamages may be difficult to ascertain or an inadequate remedy.\n-\nConfidential\nRecipient therefore agrees that Discloser will have the right, in\naddition to its other rights and remedies, to seek injunctive relief for\nany violation of this Agreement.\n13. Nonwaiver: Any failure by either Party to enforce the other\nParty’s strict performance of any provision of this Agreement will not\nconstitute a waiver of its right to subsequently enforce such provision\nor any other provision of this Agreement.\n14. Miscellaneous: (a) Any notice, approval, request,\nauthorization, direction or other communication under this\nAgreement shall be given in writing and shall be deemed to have\nbeen delivered and given for all purposes (i) on the delivery date if\ndelivered personally to the Party to whom the same is directed;\n(ii) one (1) business day after deposit with a commercial overnight\ncarrier, with written verification of receipt, or (iii) five (5) business\ndays after the mailing date, whether or not actually received, if sent\nby U.S. mail, return receipt requested, postage and charges prepaid,\nor any other means of rapid mail delivery for which a receipt is\navailable. In the case of AOL, such notice will be provided to the\nDeputy General Counsel for Transactions, located at AOL Inc.,\n22000 AOL Way, Dulles, VA 20166. In the case of the Company,\nsuch notice will be provided to the Company Primary Representative\nidentified in paragraph 2 and the General Counsel, each located at the\naddress set forth in paragraph 2 above.\n(b) All additions or modifications to this Agreement must be\nmade in writing and signed by a duly authorized representative of\neach Party.\n(c) This Agreement shall be interpreted, construed and enforced\nin all respects in accordance with the laws of the State of New York\nexcept for its conflicts of laws principles. Each Party irrevocably\nconsents to the exclusive jurisdiction, forum and venue of the\nCommercial Division of the Supreme Court of the State of New\nYork, New York County and the United States District Court for the\nSouthern District of New York over any and all claims, disputes,\ncontroversies or disagreements between the Parties or any of their\nrespective subsidiaries, affiliates, successors and assigns under or\nrelated to this Agreement.\n(d) This Agreement may be executed in counterparts, each of\nwhich shall be deemed an original and both of which together shall\nconstitute one and the same document and such original signatures\nmay be delivered to the other Party by facsimile transmission or by\nemail.\n(e) Neither Party shall assign or transfer any rights or\nobligations under this Agreement without the prior written consent of\nthe other Party; except that either Party may assign or transfer this\nAgreement to an Affiliate. Subject to the limitations set forth in this\nAgreement, this Agreement will inure to the benefit of and be\nbinding upon the Parties, their successors and assigns.\n(f) If any provision of this Agreement shall be held by a court of\ncompetent jurisdiction to be unenforceable, the remaining provisions\nshall remain in full force and effect.\n* Gk Gk\n-3-\nConfidential\nAOL INC.\nBy:  /s/ Mark Roszkowski\nName: Mark Roszkowski\nTitle: SVP, Head Corporate Development\nDate: 1/20/15\nMILLENNIAL MEDIA INC.\nBy:  /s/ Michael Barrett\nName: Michael Barrett\nTitle: President & CEO\nDate: 1.19.15	EX-99.D.2 13 d73402dex99d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nAOL INC.\nCONFIDENTIAL NON-DISCLOSURE AGREEMENT\nEffective Date: January 16, 2015\n5. Term: This Agreement shall terminate six (6) months after\nthe Effective Date (the "Term"), however Recipient's obligations to\nIn order to induce the parties hereto to disclose certain\nprotect Confidential Information shall survive for two (2) years after\nConfidential Information (as described below) and to protect such\ntermination.\nConfidential Information, AOL Inc., with offices at 22000 AOL Way,\nDulles, Virginia 20166 ("AOL") and Millennial Media Inc. with\n6. Standard of Care: Recipient shall not use Confidential\noffices at COMPANY ADDRESS (the "Company") hereby agree as\nInformation for any purpose other than the intended use set forth in\nfollows:\nparagraph 4 above, and shall not disclose, disseminate or otherwise\npublish or communicate Confidential Information of the other Party\n1. Disclosing Party.: AOL and the Company are sometimes\nto any person, firm, corporation or other third party without the prior\nreferred to herein separately as a "Party" and together as the\nwritten consent of Discloser, except to Recipient's employees,\n"Parties." The Party disclosing Confidential Information is\nconsultants, Affiliates and representatives who have a need to know,\nsometimes referred to herein as "Discloser" and the Party in receipt\nwho have been informed of Recipient's obligations hereunder, and\nof such Confidential Information is sometimes referred to herein as\nwho have previously agreed (e.g., as a condition of their employment\n"Recipient."\nor agency) to be bound by terms regarding the protection of\nconfidential information that are substantially similar to those of this\n2. Primary Representative: Each Party's representative for\nAgreement and which would extend to Discloser's Confidential\ncoordinating disclosure or receipt of Confidential Information is:\nInformation. Recipient agrees to use the same degree of care that it\n(i) AOL: Mark Roszkowski, Senior Vice President, AOL Inc., 770\nuses to protect its own confidential information of a like nature from\nBroadway, New York, NY 10003; and (ii) the Company: CONTACT\nunauthorized disclosure, but in no event less than a reasonable degree\nNAME, CONTACT'S TITLE, Millennial Media Inc., COMPANY\nof care.\nADDRESS.\n7. Exclusions: This Agreement imposes no obligation upon\n3. Description of Confidential Information: For purposes of\nRecipient with respect to information that: (i) was in Recipient's\nthis Confidential Non-Disclosure Agreement ("Agreement"),\npossession before receipt from Discloser; (ii) is or becomes a matter\n"Confidential Information" means any information which is disclosed\nof public knowledge through no fault of Recipient; (iii) is rightfully\nduring the Term (as defined below) and which (i) is or should be\nreceived by Recipient from a third party without a duty of\nreasonably understood to be confidential or proprietary to Discloser\nconfidentiality; (iv) represents general conceptual information (as\nor its Affiliates (as defined below) (such information may include\ncompared to, e.g., specific technical or financial information, specific\nwithout limitation information concerning Discloser's business,\nproduct offerings or specific product ideas) which is incidentally\nproducts, services, content, finances, subscribers, users, tools, source\nretained in the unaided memories of persons who have had access to\ncode, product designs and plans, customer lists and other marketing\nthe Confidential Information; (v) is independently developed by\nand technical information, the terms and existence of this Agreement,\nRecipient without use of Discloser's Confidential Information; (vi) is\nand other unpublished information) or (ii) is so designated by\ndisclosed under operation of law, provided that the Recipient will use\nDiscloser by prominently marking it with a "confidential,"\nreasonable efforts to provide Discloser with prompt written notice of\n"proprietary" or similar legend. "Affiliate(s)" shall mean an entity\nany such requirement in order to enable Discloser to seek an\ncontrolling, controlled by or under common control with a Party.\nappropriate protective order or other remedy, and that Recipient will\ndisclose only such information as is legally required and will use\n4. Use of Confidential Information: Recipient shall make use\nreasonable efforts to obtain confidential treatment for any\nof the Confidential Information only for the purpose of discussing\nConfidential Information that is so disclosed; or (vii) is disclosed by\nand evaluating a possible business relationship between the Parties\nRecipient with Discloser's prior written approval.\n(the "Transaction"), described more fully as follows: an investment in\nand/or acquisition of the Company by AOL. During the Term of this\n8. Warranty: Each Discloser warrants that it has the right to\nAgreement, neither Party shall disclose the existence or nature of this\nmake the disclosures under this Agreement. NO OTHER\nAgreement or the Transaction to any third party without the other\nWARRANTIES ARE MADE BY EITHER PARTY UNDER\nParty's prior written consent.\nTHIS\nConfidential\nAGREEMENT. ANY INFORMATION EXCHANGED UNDER\nRecipient therefore agrees that Discloser will have the right, in\nTHIS AGREEMENT IS PROVIDED "AS IS"\naddition to its other rights and remedies, to seek injunctive relief for\nany violation of this Agreement.\n9. Other Business Activities: (a) Nothing in this Agreement\nwill be construed as a representation or agreement to restrict\n13. Nonwaiver: Any failure by either Party to enforce the other\nreassignment of Recipient's employees, or in any manner affect or\nParty's strict performance of any provision of this Agreement will not\nlimit either Party's present or future business activities.\nconstitute a waiver of its right to subsequently enforce such provision\nor any other provision of this Agreement.\n(b) Nothing in this Agreement will be construed as a\nrepresentation or agreement that Recipient will not develop or have\n14. Miscellaneous: (a) Any notice, approval, request,\ndeveloped for it products, concepts, systems or techniques that are\nauthorization, direction or other communication under this\nsimilar to or compete with any such products, concepts, systems or\nAgreement shall be given in writing and shall be deemed to have\ntechniques described in the Confidential Information, provided that\nbeen delivered and given for all purposes (i) on the delivery date if\nRecipient does not violate any of its obligations under this Agreement\ndelivered personally to the Party to whom the same is directed;\nin connection with such development.\n(ii) one (1) business day after deposit with a commercial overnight\ncarrier, with written verification of receipt, or (iii) five (5) business\n(c) This Agreement does not create any agency or partnership\ndays after the mailing date, whether or not actually received, if sent\nrelationship. Nothing in this Agreement shall be construed as\nby U.S. mail, return receipt requested, postage and charges prepaid,\nimplying any commitment or agreement by either Party to make an\nor any other means of rapid mail delivery for which a receipt is\ninvestment in the other Party or in any business of the other Party or\navailable. In the case of AOL, such notice will be provided to the\nto enter into any other business arrangement of any nature\nDeputy General Counsel for Transactions, located at AOL Inc.,\nwhatsoever.\n22000 AOL Way, Dulles, VA 20166. In the case of the Company,\nsuch notice will be provided to the Company Primary Representative\n10. Ownership and Other Rights: Neither Party acquires any\nidentified in paragraph 2 and the General Counsel, each located at the\nintellectual property rights under this Agreement except the limited\naddress set forth in paragraph 2 above.\nrights necessary to carry out the intended use set forth in paragraph 4\n(Use of Confidential Information) above.\n(b) All additions or modifications to this Agreement must be\nmade in writing and signed by a duly authorized representative of\n11. Return of Confidential Information: Recipient will, at\neach Party.\nRecipient's option, return or destroy all tangible material embodying\nConfidential Information (in any form or medium and including,\n(c) This Agreement shall be interpreted, construed and enforced\nwithout limitation, all summaries, copies and excerpts of Confidential\nin all respects in accordance with the laws of the State of New York\nInformation) at any such time as Discloser may SO request.\nexcept for its conflicts of laws principles. Each Party irrevocably\nNotwithstanding anything contained herein to the contrary, and\nconsents to the exclusive jurisdiction, forum and venue of the\nsubject to the continuing confidentiality obligations set forth herein,\nCommercial Division of the Supreme Court of the State of New\nRecipient (a) will not be obligated to erase Confidential Information\nYork, New York County and the United States District Court for the\ncontained in archived computer system backups in accordance with\nSouthern District of New York over any and all claims, disputes,\nRecipient's security and/or disaster recovery procedures, and (b) may\ncontroversies or disagreements between the Parties or any of their\nmaintain one copy of any Confidential Information in Recipient's\nrespective subsidiaries, affiliates, successors and assigns under or\nrecords as may be required by the regulations and rules of any\nrelated to this Agreement.\ngovernmental agency or other regulatory authority, including any\nself-regulatory organization having, or claiming to have, jurisdiction.\n(d) This Agreement may be executed in counterparts, each of\nwhich shall be deemed an original and both of which together shall\n12. Injunctive Relief: Recipient acknowledges that disclosure\nconstitute one and the same document and such original signatures\nor use of Confidential Information in violation of this Agreement\nmay be delivered to the other Party by facsimile transmission or by\ncould cause irreparable harm to Discloser for which monetary\nemail.\ndamages may be difficult to ascertain or an inadequate remedy.\n-2-\nConfidential\n(e) Neither Party shall assign or transfer any rights or\nAOL INC.\nobligations under this Agreement without the prior written consent of\nthe other Party; except that either Party may assign or transfer this\nBy:\n/s/ Mark Roszkowski\nAgreement to an Affiliate. Subject to the limitations set forth in this\nAgreement, this Agreement will inure to the benefit of and be\nName: Mark Roszkowski\nbinding upon the Parties, their successors and assigns.\nTitle: SVP, Head Corporate Development\n(f) If any provision of this Agreement shall be held by a court of\nDate: 1/20/15\ncompetent jurisdiction to be unenforceable, the remaining provisions\nshall remain in full force and effect.\nMILLENNIAL MEDIA INC.\n> >k >k\nBy:\n/s/ Michael Barrett\nName: Michael Barrett\nTitle: President & CEO\nDate: 1.19.15\n-3-	EX-99.D.2 13 d73402dex99d2.htm EXHIBIT (D)(2)\nExhibit (d)(2)\nAOL INC.\nCONFIDENTIAL NON-DISCLOSURE AGREEMENT\nEffective Date: January 16, 2015\nIn order to induce the parties hereto to disclose certain\nConfidential Information (as described below) and to protect such\nConfidential Information, AOL Inc., with offices at 22000 AOL Way,\nDulles, Virginia 20166 (“AOL”) and Millennial Media Inc. with\noffices at COMPANY ADDRESS (the “Company”) hereby agree as\nfollows:\n1. Disclosing Party: AOL and the Company are sometimes\nreferred to herein separately as a “Party” and together as the\n“Parties.” The Party disclosing Confidential Information is\nsometimes referred to herein as “Discloser” and the Party in receipt\nof such Confidential Information is sometimes referred to herein as\n“Recipient.”\n2. Primary Representative: Each Party’s representative for\ncoordinating disclosure or receipt of Confidential Information is:\n(i) AOL: Mark Roszkowski, Senior Vice President, AOL Inc., 770\nBroadway, New York, NY 10003; and (ii) the Company: CONTACT\nNAME, CONTACT’S TITLE, Millennial Media Inc., COMPANY\nADDRESS.\n3. Description of Confidential Information: For purposes of\nthis Confidential Non-Disclosure Agreement (“Agreement”),\n“Confidential Information” means any information which is disclosed\nduring the Term (as defined below) and which (i) is or should be\nreasonably understood to be confidential or proprietary to Discloser\nor its Affiliates (as defined below) (such information may include\nwithout limitation information concerning Discloser’s business,\nproducts, services, content, finances, subscribers, users, tools, source\ncode, product designs and plans, customer lists and other marketing\nand technical information, the terms and existence of this Agreement,\nand other unpublished information) or (ii) is so designated by\nDiscloser by prominently marking it with a “confidential,”\n“proprietary” or similar legend. “Affiliate(s)” shall mean an entity\ncontrolling, controlled by or under common control with a Party.\n4. Use of Confidential Information: Recipient shall make use\nof the Confidential Information only for the purpose of discussing\nand evaluating a possible business relationship between the Parties\n(the “Transaction”), described more fully as follows: an investment in\nand/or acquisition of the Company by AOL. During the Term of this\nAgreement, neither Party shall disclose the existence or nature of this\nAgreement or the Transaction to any third party without the other\nParty’s prior written consent.\n5. Term: This Agreement shall terminate six (6) months after\nthe Effective Date (the “Term”), however Recipient’s obligations to\nprotect Confidential Information shall survive for two (2) years after\ntermination.\n6. Standard of Care: Recipient shall not use Confidential\nInformation for any purpose other than the intended use set forth in\nparagraph 4 above, and shall not disclose, disseminate or otherwise\npublish or communicate Confidential Information of the other Party\nto any person, firm, corporation or other third party without the prior\nwritten consent of Discloser, except to Recipient’s employees,\nconsultants, Affiliates and representatives who have a need to know,\nwho have been informed of Recipient’s obligations hereunder, and\nwho have previously agreed (e.g ., as a condition of their employment\nor agency) to be bound by terms regarding the protection of\nconfidential information that are substantially similar to those of this\nAgreement and which would extend to Discloser’s Confidential\nInformation. Recipient agrees to use the same degree of care that it\nuses to protect its own confidential information of a like nature from\nunauthorized disclosure, but in no event less than a reasonable degree\nof care.\n7. Exclusions: This Agreement imposes no obligation upon\nRecipient with respect to information that: (i) was in Recipient’s\npossession before receipt from Discloser; (ii) is or becomes a matter\nof public knowledge through no fault of Recipient; (iii) is rightfully\nreceived by Recipient from a third party without a duty of\nconfidentiality; (iv) represents general conceptual information (as\ncompared to, e.g ., specific technical or financial information, specific\nproduct offerings or specific product ideas) which is incidentally\nretained in the unaided memories of persons who have had access to\nthe Confidential Information; (v) is independently developed by\nRecipient without use of Discloser’s Confidential Information; (vi) is\ndisclosed under operation of law, provided that the Recipient will use\nreasonable efforts to provide Discloser with prompt written notice of\nany such requirement in order to enable Discloser to seek an\nappropriate protective order or other remedy, and that Recipient will\ndisclose only such information as is legally required and will use\nreasonable efforts to obtain confidential treatment for any\nConfidential Information that is so disclosed; or (vii) is disclosed by\nRecipient with Discloser ’s prior written approval.\n8. Warranty: Each Discloser warrants that it has the right to\nmake the disclosures under this Agreement. NO OTHER\nWARRANTIES ARE MADE BY EITHER PARTY UNDER\nTHIS\nConfidential\n-2-\nAGREEMENT. ANY INFORMATION EXCHANGED UNDER\nTHIS AGREEMENT IS PROVIDED “AS IS”.\n9. Other Business Activities: (a) Nothing in this Agreement\nwill be construed as a representation or agreement to restrict\nreassignment of Recipient’s employees, or in any manner affect or\nlimit either Party’s present or future business activities.\n(b) Nothing in this Agreement will be construed as a\nrepresentation or agreement that Recipient will not develop or have\ndeveloped for it products, concepts, systems or techniques that are\nsimilar to or compete with any such products, concepts, systems or\ntechniques described in the Confidential Information, provided that\nRecipient does not violate any of its obligations under this Agreement\nin connection with such development.\n(c) This Agreement does not create any agency or partnership\nrelationship. Nothing in this Agreement shall be construed as\nimplying any commitment or agreement by either Party to make an\ninvestment in the other Party or in any business of the other Party or\nto enter into any other business arrangement of any nature\nwhatsoever.\n10. Ownership and Other Rights: Neither Party acquires any\nintellectual property rights under this Agreement except the limited\nrights necessary to carry out the intended use set forth in paragraph 4\n(Use of Confidential Information) above.\n11. Return of Confidential Information: Recipient will, at\nRecipient’s option, return or destroy all tangible material embodying\nConfidential Information (in any form or medium and including,\nwithout limitation, all summaries, copies and excerpts of Confidential\nInformation) at any such time as Discloser may so request.\nNotwithstanding anything contained herein to the contrary, and\nsubject to the continuing confidentiality obligations set forth herein,\nRecipient (a) will not be obligated to erase Confidential Information\ncontained in archived computer system backups in accordance with\nRecipient’s security and/or disaster recovery procedures, and (b) may\nmaintain one copy of any Confidential Information in Recipient’s\nrecords as may be required by the regulations and rules of any\ngovernmental agency or other regulatory authority, including any\nself-regulatory organization having, or claiming to have, jurisdiction.\n12. Injunctive Relief: Recipient acknowledges that disclosure\nor use of Confidential Information in violation of this Agreement\ncould cause irreparable harm to Discloser for which monetary\ndamages may be difficult to ascertain or an inadequate remedy.\nRecipient therefore agrees that Discloser will have the right, in\naddition to its other rights and remedies, to seek injunctive relief for\nany violation of this Agreement.\n13. Nonwaiver: Any failure by either Party to enforce the other\nParty’s strict performance of any provision of this Agreement will not\nconstitute a waiver of its right to subsequently enforce such provision\nor any other provision of this Agreement.\n14. Miscellaneous: (a) Any notice, approval, request,\nauthorization, direction or other communication under this\nAgreement shall be given in writing and shall be deemed to have\nbeen delivered and given for all purposes (i) on the delivery date if\ndelivered personally to the Party to whom the same is directed;\n(ii) one (1) business day after deposit with a commercial overnight\ncarrier, with written verification of receipt, or (iii) five (5) business\ndays after the mailing date, whether or not actually received, if sent\nby U.S. mail, return receipt requested, postage and charges prepaid,\nor any other means of rapid mail delivery for which a receipt is\navailable. In the case of AOL, such notice will be provided to the\nDeputy General Counsel for Transactions, located at AOL Inc.,\n22000 AOL Way, Dulles, VA 20166. In the case of the Company,\nsuch notice will be provided to the Company Primary Representative\nidentified in paragraph 2 and the General Counsel, each located at the\naddress set forth in paragraph 2 above.\n(b) All additions or modifications to this Agreement must be\nmade in writing and signed by a duly authorized representative of\neach Party.\n(c) This Agreement shall be interpreted, construed and enforced\nin all respects in accordance with the laws of the State of New York\nexcept for its conflicts of laws principles. Each Party irrevocably\nconsents to the exclusive jurisdiction, forum and venue of the\nCommercial Division of the Supreme Court of the State of New\nYork, New York County and the United States District Court for the\nSouthern District of New York over any and all claims, disputes,\ncontroversies or disagreements between the Parties or any of their\nrespective subsidiaries, affiliates, successors and assigns under or\nrelated to this Agreement.\n(d) This Agreement may be executed in counterparts, each of\nwhich shall be deemed an original and both of which together shall\nconstitute one and the same document and such original signatures\nmay be delivered to the other Party by facsimile transmission or by\nemail.\nConfidential\n-3-\n(e) Neither Party shall assign or transfer any rights or\nobligations under this Agreement without the prior written consent of\nthe other Party; except that either Party may assign or transfer this\nAgreement to an Affiliate. Subject to the limitations set forth in this\nAgreement, this Agreement will inure to the benefit of and be\nbinding upon the Parties, their successors and assigns.\n(f) If any provision of this Agreement shall be held by a court of\ncompetent jurisdiction to be unenforceable, the remaining provisions\nshall remain in full force and effect.\n***\nAOL INC.\nBy: /s/ Mark Roszkowski\nName: Mark Roszkowski\nTitle: SVP, Head Corporate Development\nDate: 1/20/15\nMILLENNIAL MEDIA INC.\nBy: /s/ Michael Barrett\nName: Michael Barrett\nTitle: President & CEO\nDate: 1.19 .15
+ccbc824d314554aa3413b07bef70618d.pdf	effective_date jurisdiction party term	EX-10.01 2 dex1001.htm LETTER AGREEMENT, AND CONFIDENTIALITY AND BUSINESS PROTECTION\nAGREEMENT\nExhibit 10.01\n[Cardinal Health Letterhead]\nNovember 8, 2006\nMark Parrish\nCardinal Health\n7000 Cardinal Place\nDublin, OH 43017\nDear Mark:\nIt is with great pleasure that I confirm in writing your promotion and the terms of your employment in your new position with Cardinal Health, Inc.\n(the “Company” or “Cardinal Health”). This letter will replace your existing employment agreement dated September 2, 2005, which you agree will\nno longer apply:\n1. Your new position will be CEO Healthcare Supply Chain Services. In this position, you will be reporting directly to me. During your\nemployment, you will also serve on the Executive Leadership Team of Cardinal Health. The effective date of your appointment to this\nposition is November 8, 2006.\n2. Your annual base salary will be $700,000.00, and your cash compensation profile will be reviewed at regular annual intervals by the\nHuman Resources and Compensation Committee of the Board of Directors (Compensation Committee), along with all other officers of\nCardinal Health.\n3. You will continue to participate in our Management Incentive Plan (MIP). Your target annual incentive will be 100% of your base salary.\nYour base salary and incentive for the remainder of fiscal year 2007 (ending June 30, 2007) will be ratably adjusted to reflect the\ncompensation of your new position.\n4. You will also continue to participate in the Long-Term Incentive Cash Program for Fiscal Years 2006 – FY2008 (LTICP). Your target\nopportunity in the LTICP is your cumulative MIP payouts during the performance period.\n5. Upon appointment to your new position, you will receive an award of 35,000 Cardinal Health stock options along with an award of\n5,000 Cardinal Health restricted share units (RSUs). These and the equity grants made in August 2006 will represent your fiscal year\n2007 awards. Your additional award of 35,000 stock options will vest in annual installments of 25% on each of the first four\nanniversaries of the grant date. The additional award of 5,000 restricted share units will vest in annual installments of 33.33% on each of\nthe first three anniversaries of the grant date. The grant date of these awards will be November 15, 2006. You will be eligible for the next\nregular annual award of stock or stock options in fiscal year 2008. Standard terms and conditions will apply to these equity awards. The\nRSUs awarded pursuant to this Paragraph 5 will also be subject to deferred payment if you so elect on the enclosed election form.\nMark Parrish\nNovember 8, 2006\nPage 2\n6. Upon appointment to your new position, you will also be awarded a special equity award of 35,000 Cardinal Health restricted share\nunits. This special award of RSUs will vest in full on the third anniversary of the grant date. If you are terminated without cause or if you\nterminate with “good reason” (as defined in paragraph 8 below), RSUs granted under this special equity award will vest in full on the\ndate of such termination. The grant date of this award will also be November 15, 2006. Other than the special vesting provision\ndescribed above, standard terms and conditions will apply to the special equity award. 30,000 of the RSUs under this special equity\naward will also be subject to deferred payment until 6 months after your separation from employment with the Company.\n7. You will continue to be eligible to participate in and receive benefits under other Cardinal Health employee benefit plans and programs\n(e.g., plans and programs that provide medical, life insurance and other welfare and retirement benefits as well as the Company’s\nsavings, employee stock purchase and deferred compensation plans) to the same extent as, and on the same terms and conditions as,\nother similarly situated executives of the Company.\n8. If your employment is terminated by the Company without cause, or if you voluntarily terminate your employment for “good reason,”\n(either event being a “Payment Termination”), the Company will provide you with severance equal to the sum of twelve months of your\nbase salary as in effect on the day immediately prior to the date of termination plus your target annual bonus for the fiscal year of the\nCompany in which your termination occurs, such amount to be divided into twelve (12) equal installments. Your severance will be paid\nin equal monthly installments over the 12 month period following the Payment Termination event. In addition, if you are not yet age 55\nat the time of a Payment Termination, you will be “bridged” to retirement by deeming the termination to occur at or after your attainment\nof age 55, regardless of your actual age at that time, with such a termination qualifying as a “retirement” under the terms of your\noutstanding equity awards as well as other applicable plans, subject to the terms of such awards and plans, including the plans under\nwhich the equity awards were made. In addition to the benefits of termination by reason of retirement under the terms of your\noutstanding equity awards and other applicable plans, the effect of a “retirement” under any equity awards that do not already provide for\nratable vesting will be to result in the ratable vesting of any unvested stock options or RSUs based on the portion of the remaining\nvesting period elapsed at the date of the Payment Termination. You will be considered to have “good reason” to voluntarily terminate\nemployment only if there is a material diminution of your duties. However, a change in your reporting relationship will not alone\nconstitute such a diminution. If the severance payments are subject to Section 409A of the Internal Revenue Code, Cardinal Health may\ndelay payment of the first seven (7) months of severance payments until after six (6) months and one day from the date of your\ntermination of employment. If payment is delayed, seven (7) installments shall be payable, with interest as described below, as soon as\nadministratively practicable after the date which is six (6) months after the termination date, and one (1) installment shall be payable\neach month thereafter for a total of five (5) additional months, with interest credited to the first seven (7) installments as determined\nbased on the “Prime Rate” (as published in the Wall Street Journal) to the date of payment as though one such installment were allocated\nto each month between the termination date and the date of payment.\nMark Parrish\nNovember 8, 2006\nPage 3\n9. If any payments, distributions, accelerated vesting or other benefits (“Payments”) are provided in connection with a change in control of\nthe Company such that they would constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code,\nthe Payments will be reduced to the extent necessary so that no portion of the Payments will be subject to the excise tax imposed by\nSection 4999 of the Internal Revenue Code. This reduction will only occur, however, if, as a result, the net after-tax benefit to you\nexceeds the net after-tax benefit if no reduction is made. For this purpose, the net after-tax benefit shall be calculated by the Company’s\nindependent certified public accountants based on then applicable federal, state, local and foreign income and employment taxes\ncomputed at the maximum marginal rate, and the excise tax under Section 4999 of the Internal Revenue Code. If it is determined that the\nPayments will be reduced, you will be permitted to decide which Payments are to be reduced.\n10. Employment with Cardinal Health is not for any definite period of time and is terminable, with notice, at the will of either you or the\nCompany at any time for any reason. There shall be no contract, express or implied, of employment. However, you agree to be bound by\nthe terms of the attached covenants related to confidentiality and protection of the Company’s business interests. This agreement must be\nsigned and delivered to the Company on or before the effective date of your appointment to your new position. In addition, if any of the\nprovisions of this letter agreement are determined to result, directly or indirectly, in a violation of Internal Revenue Code Section 409A,\nthey will be amended to conform to the requirements of such Code Section.\nMark, congratulations on your new position. We all look forward to working with you in your new role.\nSincerely,\n/s/ R. Kerry Clark\nR. Kerry Clark\nEnclosures\ncc: Human Resources\nI accept the above terms and conditions of my continued employment and acknowledge that my September 2, 2005 employment agreement is\nno longer in effect:\n/s/ Mark W. Parrish\n11/9/06\nMark Parrish\nDate\nConfidentiality and Business Protection Agreement\nThis Confidentiality and Business Protection Agreement (“Agreement”) is hereby entered into by and between Mark Parrish (“Executive”) and\nCardinal Health, Inc., an Ohio Corporation (the “Company”) effective as of November 8, 2006.\nIt is hereby agreed as follows:\n1. Consideration and Acknowledgements. The parties acknowledge that the provisions and covenants contained in this Agreement are ancillary\nand material to, and in consideration of, the employment letter agreement between the parties effective as of November 8, 2006, and that the\nlimitations contained herein are reasonable in geographic and temporal scope and do not impose a greater restriction or restraint than is necessary to\nprotect the goodwill and other legitimate business interests of the Company. The parties also acknowledge and agree that the provisions of this\nAgreement do not adversely affect the Executive’s ability to earn a living in any capacity that does not violate the covenants contained herein. The\nparties further acknowledge and agree that the provisions of Section 9(a) below are accurate and necessary because (i) this Agreement is entered into\nin the State of Ohio, (ii) Ohio has a substantial relationship to the parties and to this transaction, (iii) Ohio is the headquarters state of the Company,\nwhich has operations nationwide and has a compelling interest in having its employees treated uniformly, (iv) the use of Ohio law provides certainty\nto the parties in any covenant litigation in the United States, and (v) enforcement of the provisions of this Agreement would not violate any\nfundamental public policy of Ohio or any other jurisdiction.\n2. Confidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company and all of its subsidiaries,\npartnerships, joint ventures, limited liability companies, and other affiliates (collectively, the “Cardinal Group”), all secret or confidential\ninformation, knowledge or data relating to the Cardinal Group and its businesses (including, without limitation, any proprietary and not publicly\navailable information concerning any processes, methods, trade secrets, research, secret data, costs, names of users or purchasers of their respective\nproducts or services, business methods, operating procedures or programs or methods of promotion and sale) that the Executive has obtained or\nobtains during the Executive’s employment by the Cardinal Group and that is not public knowledge (other than as a result of the Executive’s\nviolation of this Agreement) (“Confidential Information”). For the purposes of this Agreement, information shall not be deemed to be publicly\navailable merely because it is embraced by general disclosures or because individual features or combinations thereof are publicly available. The\nExecutive shall not communicate, divulge or disseminate Confidential Information at any time during or after the Executive’s employment with the\nCardinal Group, except with prior written consent of the applicable Cardinal Group company, or as otherwise required by law or legal process. All\nrecords, files, memoranda, reports, customer lists, drawings, plans, documents and the like that the Executive uses, prepares or comes into contact\nwith during the course of the Executive’s employment shall remain the sole property of the Company and/or the Cardinal Group, as applicable, and\nshall be turned over to the applicable Cardinal Group company upon termination of the Executive’s employment.\n3. Non-Recruitment of Cardinal Group Employees, etc. Executive shall not, at any time during the Restricted Period (as defined in this\nAgreement), without the prior written consent of the Company, engage in the following conduct (a “Solicitation”): (i) directly or indirectly contact,\nsolicit, recruit or employ (whether as an employee, officer, director, agent,\nconsultant or independent contractor) any person who was or is at any time during the previous twelve months an employee, representative, officer\nor director of the Cardinal Group; or (ii) take any action to encourage or induce any employee, representative, officer or director of the Cardinal\nGroup to cease their relationship with the Cardinal Group for any reason. A “Solicitation” does not include any recruitment of employees within or\nfor the Cardinal Group. The “Restricted Period” means the period of Executive’s employment with the Cardinal Group (without regard to any period\nduring which Executive serves as a consulting employee) and the additional period ending eighteen (18) months after the Executive’s date of\ntermination of employment or date of retirement, as applicable.\n4. No Competition — Solicitation of Business. During the Restricted Period, the Executive shall not (either directly or indirectly or as an\nofficer, agent, employee, partner or director of any other company, partnership or entity) solicit, service, or accept on behalf of any competitor of the\nCardinal Group the business of (i) any customer of the Cardinal Group at the time of the Executive’s employment or date of termination of\nemployment, or (ii) any potential customer of the Cardinal Group which the Executive knew to be an identified, prospective purchaser of services or\nproducts of the Cardinal Group.\n5. No Competition — Employment by Competitor. During the Restricted Period, the Executive shall not invest in (other than in a publicly\ntraded company with a maximum investment of no more than 1% of outstanding shares), counsel, advise, or be otherwise engaged or employed by,\nany entity or enterprise that competes with the Cardinal Group, by developing, manufacturing or selling any product or service of a type,\nrespectively, developed, manufactured or sold by the Cardinal Group (each such person described, and not excepted, as a customer, potential\ncustomer or a competitor under Section 4 or this Section 5 of this Agreement is a “Competitor”).\n6. No Disparagement.\n(a) The Executive and the Company shall at all times refrain from taking actions or making statements, written or oral, that\n(A) denigrate, disparage or defame the goodwill or reputation of Executive or the Cardinal Group, as the case may be, or any of its trustees, officers,\nsecurity holders, partners, agents or former or current employees and directors, or (B) are intended to, or may be reasonably expected to, adversely\naffect the morale of the employees of the Cardinal Group. The Executive further agrees not to make any negative statements to third parties relating\nto the Executive’s employment or any aspect of the businesses of Cardinal Group and not to make any statements to third parties about the\ncircumstances of the termination of the Executive’s employment, or about the Cardinal Group or its trustees, directors, officers, security holders,\npartners, agents or former or current employees and directors, except as may be required by a court or governmental body.\n(b) The Executive further agrees that, following termination of employment for any reason, the Executive shall assist and cooperate with\nthe Company with regard to any matter or project in which the Executive was involved during the Executive’s employment with the Company,\nincluding but not limited to any litigation that may be pending or may arise after such termination of employment. Further, the Executive agrees to\nnotify the Company at the earliest opportunity of any contact that is made by any third parties concerning any such matter or project. The Company\nshall not unreasonably request such cooperation of Executive and shall cooperate with the Executive in scheduling any assistance by the Executive,\ntaking into account the Executive’s business and personal affairs, and shall\ncompensate the Executive for any lost wages or expenses associated with such cooperation and assistance.\n7. Inventions. All plans, discoveries and improvements, whether patentable or unpatentable, made or devised by the Executive, whether alone\nor jointly with others, from the date of the Executive’s initial employment by the Company and continuing until the end of any period during which\nthe Executive is employed by the Cardinal Group, relating or pertaining in any way to the Executive’s employment with or the business of the\nCardinal Group, shall be promptly disclosed in writing to the Secretary of the Board and are hereby transferred to and shall redound to the benefit of\nthe Company, and shall become and remain its sole and exclusive property. The Executive agrees to execute any assignment to the Company or its\nnominee, of the Executive’s entire right, title and interest in and to any such discoveries and improvements and to execute any other instruments and\ndocuments requisite or desirable in applying for and obtaining patents, trademarks or copyrights, at the expense of the Company, with respect thereto\nin the United States and in all foreign countries, that may be required by the Company. The Executive further agrees at all times to cooperate to the\nextent and in the manner required by the Company, in the prosecution or defense of any patent or copyright claims or any litigation, or other\nproceeding involving any trade secrets, processes, discoveries or improvements covered by this Agreement, but all necessary expenses thereof shall\nbe paid by the Company.\n8. Acknowledgement and Enforcement. The Executive acknowledges and agrees that: (A) the purpose of the foregoing covenants, including\nwithout limitation the noncompetition covenants of Sections 4 and 5, is to protect the goodwill, trade secrets and other Confidential Information of\nthe Company; (B) because of the nature of the business in which the Cardinal Group is engaged and because of the nature of the Confidential\nInformation to which the Executive has access, the Company would suffer irreparable harm and it would be impractical and excessively difficult to\ndetermine the actual damages of the Cardinal Group in the event the Executive breached any of the covenants of this Agreement; and (C) remedies at\nlaw (such as monetary damages) for any breach of the Executive’s obligations under this Agreement would be inadequate. The Executive therefore\nagrees and consents that if the Executive commits any breach of a covenant under this Agreement or threatens to commit any such breach, the\nCompany shall have the right (in addition to, and not in lieu of, any other right or remedy that may be available to it) to temporary and permanent\ninjunctive relief from a court of competent jurisdiction, without posting any bond or other security and without the necessity of proof of actual\ndamage.\n9. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without reference to principles\nof conflict of laws. If, under any such law, any portion of this Agreement is at any time deemed to be in conflict with any applicable statute, rule,\nregulation or ordinance, such portion shall be deemed to be modified or altered to conform thereto. The parties hereto irrevocably agree to submit to\nthe jurisdiction and venue of the courts of the State of Ohio in any action or proceeding brought with respect to or in connection with this\nAgreement. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement constitutes the\nentire agreement of the parties with respect to the subject matter hereof. This Agreement may not be amended or modified otherwise than by a\nwritten agreement executed by the parties hereto or their respective successors and legal representatives.\n(b) All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by\nregistered or certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive:\nAt the most recent address on file for the Executive at the Company.\nIf to the Company: Cardinal Health, Inc.\n7000 Cardinal Place\nDublin, Ohio 43017\nAttention: Chief Legal Officer\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement. If any provision of this Agreement shall be held invalid or unenforceable in part, the remaining portion of such\nprovision, together with all other provisions of this Agreement, shall remain valid and enforceable and continue in full force and effect to the fullest\nextent consistent with the law.\n(d) The Executive’s or the Company’s failure to insist upon strict compliance with any provision of this Agreement or the failure to\nassert any right the Executive or the Company may have hereunder, shall not be deemed to be a waiver of such provision or right or any other\nprovision or right of this Agreement.\nIN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and the Company has caused these presents to be executed in its\nname and on its behalf, all as of the day and year first above written.\nExecution Date: November 7, 2006\n/s/ Mark W. Parrish\nMARK PARRISH\n/s/ R. Kerry Clark\nCARDINAL HEALTH, INC.\nExecution Date: November 8, 2006\nBy: Kerry Clark\nIts: President and Chief Executive Officer	EX-10.01 2 dex1001.htm LETTER AGREEMENT, AND CONFIDENTIALITY AND BUSINESS PROTECTION\nAGREEMENT\nExhibit 10.01\n[Cardinal Health Letterhead]\nNovember 8, 2006\nMark Parrish\nCardinal Health\n7000 Cardinal Place\nDublin, OH 43017\nDear Mark:\nIt is with great pleasure that I confirm in writing your promotion and the terms of your employment in your new position with Cardinal Health, Inc.\n(the “Company” or “Cardinal Health”). This letter will replace your existing employment agreement dated September 2, 2005, which you agree will\nno longer apply:\n1.  Your new position will be CEO Healthcare Supply Chain Services. In this position, you will be reporting directly to me. During your\nemployment, you will also serve on the Executive Leadership Team of Cardinal Health. The effective date of your appointment to this\nposition is November 8, 2006.\n2. Your annual base salary will be $700,000.00, and your cash compensation profile will be reviewed at regular annual intervals by the\nHuman Resources and Compensation Committee of the Board of Directors (Compensation Committee), along with all other officers of\nCardinal Health.\n3. You will continue to participate in our Management Incentive Plan (MIP). Your target annual incentive will be 100% of your base salary.\nYour base salary and incentive for the remainder of fiscal year 2007 (ending June 30, 2007) will be ratably adjusted to reflect the\ncompensation of your new position.\n4.  You will also continue to participate in the Long-Term Incentive Cash Program for Fiscal Years 2006 — FY2008 (LTICP). Your target\nopportunity in the LTICP is your cumulative MIP payouts during the performance period.\n5. Upon appointment to your new position, you will receive an award of 35,000 Cardinal Health stock options along with an award of\n5,000 Cardinal Health restricted share units (RSUs). These and the equity grants made in August 2006 will represent your fiscal year\n2007 awards. Your additional award of 35,000 stock options will vest in annual installments of 25% on each of the first four\nanniversaries of the grant date. The additional award of 5,000 restricted share units will vest in annual installments of 33.33% on each of\nthe first three anniversaries of the grant date. The grant date of these awards will be November 15, 2006. You will be eligible for the next\nregular annual award of stock or stock options in fiscal year 2008. Standard terms and conditions will apply to these equity awards. The\nRSUs awarded pursuant to this Paragraph 5 will also be subject to deferred payment if you so elect on the enclosed election form.\nMark Parrish November 8, 2006 Page 2\n6. Upon appointment to your new position, you will also be awarded a special equity award of 35,000 Cardinal Health restricted share\nunits. This special award of RSUs will vest in full on the third anniversary of the grant date. If you are terminated without cause or if you\nterminate with “good reason” (as defined in paragraph 8 below), RSUs granted under this special equity award will vest in full on the\ndate of such termination. The grant date of this award will also be November 15, 2006. Other than the special vesting provision\ndescribed above, standard terms and conditions will apply to the special equity award. 30,000 of the RSUs under this special equity\naward will also be subject to deferred payment until 6 months after your separation from employment with the Company.\nYou will continue to be eligible to participate in and receive benefits under other Cardinal Health employee benefit plans and programs\n(e.g., plans and programs that provide medical, life insurance and other welfare and retirement benefits as well as the Company’s\nsavings, employee stock purchase and deferred compensation plans) to the same extent as, and on the same terms and conditions as,\nother similarly situated executives of the Company.\nIf your employment is terminated by the Company without cause, or if you voluntarily terminate your employment for “good reason,”\n(either event being a “Payment Termination”), the Company will provide you with severance equal to the sum of twelve months of your\nbase salary as in effect on the day immediately prior to the date of termination plus your target annual bonus for the fiscal year of the\nCompany in which your termination occurs, such amount to be divided into twelve (12) equal installments. Your severance will be paid\nin equal monthly installments over the 12 month period following the Payment Termination event. In addition, if you are not yet age 55\nat the time of a Payment Termination, you will be “bridged” to retirement by deeming the termination to occur at or after your attainment\nof age 55, regardless of your actual age at that time, with such a termination qualifying as a “retirement” under the terms of your\noutstanding equity awards as well as other applicable plans, subject to the terms of such awards and plans, including the plans under\nwhich the equity awards were made. In addition to the benefits of termination by reason of retirement under the terms of your\noutstanding equity awards and other applicable plans, the effect of a “retirement” under any equity awards that do not already provide for\nratable vesting will be to result in the ratable vesting of any unvested stock options or RSUs based on the portion of the remaining\nvesting period elapsed at the date of the Payment Termination. You will be considered to have “good reason” to voluntarily terminate\nemployment only if there is a material diminution of your duties. However, a change in your reporting relationship will not alone\nconstitute such a diminution. If the severance payments are subject to Section 409A of the Internal Revenue Code, Cardinal Health may\ndelay payment of the first seven (7) months of severance payments until after six (6) months and one day from the date of your\ntermination of employment. If payment is delayed, seven (7) installments shall be payable, with interest as described below, as soon as\nadministratively practicable after the date which is six (6) months after the termination date, and one (1) installment shall be payable\neach month thereafter for a total of five (5) additional months, with interest credited to the first seven (7) installments as determined\nbased on the “Prime Rate” (as published in the Wall Street Journal) to the date of payment as though one such installment were allocated\nto each month between the termination date and the date of payment.\nMark Parrish November 8, 2006 Page 3\n9.\n10.\nIf any payments, distributions, accelerated vesting or other benefits (“Payments™) are provided in connection with a change in control of\nthe Company such that they would constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code,\nthe Payments will be reduced to the extent necessary so that no portion of the Payments will be subject to the excise tax imposed by\nSection 4999 of the Internal Revenue Code. This reduction will only occur, however, if, as a result, the net after-tax benefit to you\nexceeds the net after-tax benefit if no reduction is made. For this purpose, the net after-tax benefit shall be calculated by the Company’s\nindependent certified public accountants based on then applicable federal, state, local and foreign income and employment taxes\ncomputed at the maximum marginal rate, and the excise tax under Section 4999 of the Internal Revenue Code. If it is determined that the\nPayments will be reduced, you will be permitted to decide which Payments are to be reduced.\nEmployment with Cardinal Health is not for any definite period of time and is terminable, with notice, at the will of either you or the\nCompany at any time for any reason. There shall be no contract, express or implied, of employment. However, you agree to be bound by\nthe terms of the attached covenants related to confidentiality and protection of the Company’s business interests. This agreement must be\nsigned and delivered to the Company on or before the effective date of your appointment to your new position. In addition, if any of the\nprovisions of this letter agreement are determined to result, directly or indirectly, in a violation of Internal Revenue Code Section 409A,\nthey will be amended to conform to the requirements of such Code Section.\nMark, congratulations on your new position. We all look forward to working with you in your new role. Sincerely,\n/s/ R. Kerry Clark R. Kerry Clark Enclosures\ncc: Human Resources I accept the above terms and conditions of my continued employment and acknowledge that my September 2, 2005 employment agreement is no longer in effect: /s/ Mark W. Parrish 11/9/06 Mark Parrish Date\fConfidentiality and Business Protection Agreement\nThis Confidentiality and Business Protection Agreement (“Agreement”) is hereby entered into by and between Mark Parrish (“Executive”) and\nCardinal Health, Inc., an Ohio Corporation (the “Company”) effective as of November 8, 2006.\nIt is hereby agreed as follows:\n1. Consideration and Acknowledgements. The parties acknowledge that the provisions and covenants contained in this Agreement are ancillary\nand material to, and in consideration of, the employment letter agreement between the parties effective as of November 8, 2006, and that the\nlimitations contained herein are reasonable in geographic and temporal scope and do not impose a greater restriction or restraint than is necessary to\nprotect the goodwill and other legitimate business interests of the Company. The parties also acknowledge and agree that the provisions of this\nAgreement do not adversely affect the Executive’s ability to earn a living in any capacity that does not violate the covenants contained herein. The\nparties further acknowledge and agree that the provisions of Section 9(a) below are accurate and necessary because (i) this Agreement is entered into\nin the State of Ohio, (ii) Ohio has a substantial relationship to the parties and to this transaction, (iii) Ohio is the headquarters state of the Company,\nwhich has operations nationwide and has a compelling interest in having its employees treated uniformly, (iv) the use of Ohio law provides certainty\nto the parties in any covenant litigation in the United States, and (v) enforcement of the provisions of this Agreement would not violate any\nfundamental public policy of Ohio or any other jurisdiction.\n2. Confidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company and all of its subsidiaries,\npartnerships, joint ventures, limited liability companies, and other affiliates (collectively, the “Cardinal Group™), all secret or confidential\ninformation, knowledge or data relating to the Cardinal Group and its businesses (including, without limitation, any proprietary and not publicly\navailable information concerning any processes, methods, trade secrets, research, secret data, costs, names of users or purchasers of their respective\nproducts or services, business methods, operating procedures or programs or methods of promotion and sale) that the Executive has obtained or\nobtains during the Executive’s employment by the Cardinal Group and that is not public knowledge (other than as a result of the Executive’s\nviolation of this Agreement) (“Confidential Information”). For the purposes of this Agreement, information shall not be deemed to be publicly\navailable merely because it is embraced by general disclosures or because individual features or combinations thereof are publicly available. The\nExecutive shall not communicate, divulge or disseminate Confidential Information at any time during or after the Executive’s employment with the\nCardinal Group, except with prior written consent of the applicable Cardinal Group company, or as otherwise required by law or legal process. All\nrecords, files, memoranda, reports, customer lists, drawings, plans, documents and the like that the Executive uses, prepares or comes into contact\nwith during the course of the Executive’s employment shall remain the sole property of the Company and/or the Cardinal Group, as applicable, and\nshall be turned over to the applicable Cardinal Group company upon termination of the Executive’s employment.\n3. Non-Recruitment of Cardinal Group Employees, etc. Executive shall not, at any time during the Restricted Period (as defined in this\nAgreement), without the prior written consent of the Company, engage in the following conduct (a “Solicitation”): (i) directly or indirectly contact,\nsolicit, recruit or employ (whether as an employee, officer, director, agent,\nconsultant or independent contractor) any person who was or is at any time during the previous twelve months an employee, representative, officer\nor director of the Cardinal Group; or (ii) take any action to encourage or induce any employee, representative, officer or director of the Cardinal\nGroup to cease their relationship with the Cardinal Group for any reason. A “Solicitation” does not include any recruitment of employees within or\nfor the Cardinal Group. The “Restricted Period” means the period of Executive’s employment with the Cardinal Group (without regard to any period\nduring which Executive serves as a consulting employee) and the additional period ending eighteen (18) months after the Executive’s date of\ntermination of employment or date of retirement, as applicable.\n4. No Competition — Solicitation of Business. During the Restricted Period, the Executive shall not (either directly or indirectly or as an\nofficer, agent, employee, partner or director of any other company, partnership or entity) solicit, service, or accept on behalf of any competitor of the\nCardinal Group the business of (i) any customer of the Cardinal Group at the time of the Executive’s employment or date of termination of\nemployment, or (ii) any potential customer of the Cardinal Group which the Executive knew to be an identified, prospective purchaser of services or\nproducts of the Cardinal Group.\ntraded company with a maximum investment of no more than 1% of outstanding shares), counsel, advise, or be otherwise engaged or employed by,\nany entity or enterprise that competes with the Cardinal Group, by developing, manufacturing or selling any product or service of a type,\nrespectively, developed, manufactured or sold by the Cardinal Group (each such person described, and not excepted, as a customer, potential\ncustomer or a competitor under Section 4 or this Section 5 of this Agreement is a “Competitor”).\n6. No Disparagement.\n(a) The Executive and the Company shall at all times refrain from taking actions or making statements, written or oral, that\n(A) denigrate, disparage or defame the goodwill or reputation of Executive or the Cardinal Group, as the case may be, or any of its trustees, officers,\nsecurity holders, partners, agents or former or current employees and directors, or (B) are intended to, or may be reasonably expected to, adversely\naffect the morale of the employees of the Cardinal Group. The Executive further agrees not to make any negative statements to third parties relating\nto the Executive’s employment or any aspect of the businesses of Cardinal Group and not to make any statements to third parties about the\ncircumstances of the termination of the Executive’s employment, or about the Cardinal Group or its trustees, directors, officers, security holders,\npartners, agents or former or current employees and directors, except as may be required by a court or governmental body.\n(b) The Executive further agrees that, following termination of employment for any reason, the Executive shall assist and cooperate with\nthe Company with regard to any matter or project in which the Executive was involved during the Executive’s employment with the Company,\nincluding but not limited to any litigation that may be pending or may arise after such termination of employment. Further, the Executive agrees to\nnotify the Company at the earliest opportunity of any contact that is made by any third parties concerning any such matter or project. The Company\nshall not unreasonably request such cooperation of Executive and shall cooperate with the Executive in scheduling any assistance by the Executive,\ntaking into account the Executive’s business and personal affairs, and shall\ncompensate the Executive for any lost wages or expenses associated with such cooperation and assistance.\n7. Inventions. All plans, discoveries and improvements, whether patentable or unpatentable, made or devised by the Executive, whether alone\nor jointly with others, from the date of the Executive’s initial employment by the Company and continuing until the end of any period during which\nthe Executive is employed by the Cardinal Group, relating or pertaining in any way to the Executive’s employment with or the business of the\nCardinal Group, shall be promptly disclosed in writing to the Secretary of the Board and are hereby transferred to and shall redound to the benefit of\nthe Company, and shall become and remain its sole and exclusive property. The Executive agrees to execute any assignment to the Company or its\nnominee, of the Executive’s entire right, title and interest in and to any such discoveries and improvements and to execute any other instruments and\ndocuments requisite or desirable in applying for and obtaining patents, trademarks or copyrights, at the expense of the Company, with respect thereto\nin the United States and in all foreign countries, that may be required by the Company. The Executive further agrees at all times to cooperate to the\nextent and in the manner required by the Company, in the prosecution or defense of any patent or copyright claims or any litigation, or other\nproceeding involving any trade secrets, processes, discoveries or improvements covered by this Agreement, but all necessary expenses thereof shall\nbe paid by the Company.\n8. Acknowledgement and Enforcement. The Executive acknowledges and agrees that: (A) the purpose of the foregoing covenants, including\nwithout limitation the noncompetition covenants of Sections 4 and 5, is to protect the goodwill, trade secrets and other Confidential Information of\nthe Company; (B) because of the nature of the business in which the Cardinal Group is engaged and because of the nature of the Confidential\nInformation to which the Executive has access, the Company would suffer irreparable harm and it would be impractical and excessively difficult to\ndetermine the actual damages of the Cardinal Group in the event the Executive breached any of the covenants of this Agreement; and (C) remedies at\nlaw (such as monetary damages) for any breach of the Executive’s obligations under this Agreement would be inadequate. The Executive therefore\nagrees and consents that if the Executive commits any breach of a covenant under this Agreement or threatens to commit any such breach, the\nCompany shall have the right (in addition to, and not in lieu of, any other right or remedy that may be available to it) to temporary and permanent\ninjunctive relief from a court of competent jurisdiction, without posting any bond or other security and without the necessity of proof of actual\ndamage.\n9. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without reference to principles\nof conflict of laws. If, under any such law, any portion of this Agreement is at any time deemed to be in conflict with any applicable statute, rule,\nregulation or ordinance, such portion shall be deemed to be modified or altered to conform thereto. The parties hereto irrevocably agree to submit to\nthe jurisdiction and venue of the courts of the State of Ohio in any action or proceeding brought with respect to or in connection with this\nAgreement. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement constitutes the\nentire agreement of the parties with respect to the subject matter hereof. This Agreement may not be amended or modified otherwise than by a\nwritten agreement executed by the parties hereto or their respective successors and legal representatives.\n(b) All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by\nregistered or certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive: At the most recent address on file for the Executive at the Company.\nIf to the Company: Cardinal Health, Inc.\n7000 Cardinal Place\nDublin, Ohio 43017\nAttention: Chief Legal Officer\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement. If any provision of this Agreement shall be held invalid or unenforceable in part, the remaining portion of such\nprovision, together with all other provisions of this Agreement, shall remain valid and enforceable and continue in full force and effect to the fullest\nextent consistent with the law.\n(d) The Executive’s or the Company’s failure to insist upon strict compliance with any provision of this Agreement or the failure to\nassert any right the Executive or the Company may have hereunder, shall not be deemed to be a waiver of such provision or right or any other\nprovision or right of this Agreement.\nIN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and the Company has caused these presents to be executed in its\nname and on its behalf, all as of the day and year first above written.\nExecution Date: November 7, 2006\n/s/ Mark W. Parrish\nMARK PARRISH\n/s/ R. Kerry Clark\nCARDINAL HEALTH, INC.\nExecution Date: November 8, 2006\nBy: Kerry Clark\nIts: President and Chief Executive Officer	EX-10.01 2 dex1001.htm LETTER AGREEMENT, AND CONFIDENTIALITY AND BUSINESS PROTECTION\nAGREEMENT\nExhibit 10.01\n[Cardinal Health Letterhead]\nNovember 8, 2006\nMark Parrish\nCardinal Health\n7000 Cardinal Place\nDublin, OH 43017\nDear Mark:\nIt is with great pleasure that I confirm in writing your promotion and the terms of your employment in your new position with Cardinal Health, Inc.\n(the "Company" or "Cardinal Health"). This letter will replace your existing employment agreement dated September 2, 2005, which you agree will\nno longer apply:\n1.\nYour new position will be CEO Healthcare Supply Chain Services. In this position, you will be reporting directly to me. During your\nemployment, you will also serve on the Executive Leadership Team of Cardinal Health. The effective date of your appointment to this\nposition is November 8, 2006.\n2.\nYour annual base salary will be $700,000.00, and your cash compensation profile will be reviewed at regular annual intervals by the\nHuman Resources and Compensation Committee of the Board of Directors (Compensation Committee), along with all other officers of\nCardinal Health.\n3.\nYou will continue to participate in our Management Incentive Plan (MIP). Your target annual incentive will be 100% of your base salary.\nYour base salary and incentive for the remainder of fiscal year 2007 (ending June 30, 2007) will be ratably adjusted to reflect the\ncompensation of your new position\n4.\nYou will also continue to participate in the Long-Term Incentive Cash Program for Fiscal Years 2006 - FY2008 (LTICP). Your target\nopportunity in the LTICP is your cumulative MIP payouts during the performance period.\n5.\nUpon appointment to your new position, you will receive an award of 35,000 Cardinal Health stock options along with an award of\n5,000 Cardinal Health restricted share units (RSUs). These and the equity grants made in August 2006 will represent your fiscal year\n2007 awards. Your additional award of 35,000 stock options will vest in annual installments of 25% on each of the first four\nanniversaries of the grant date. The additional award of 5,000 restricted share units will vest in annual installments of 33.33% on each of\nthe first three anniversaries of the grant date. The grant date of these awards will be November 15, 2006. You will be eligible for the next\nregular annual award of stock or stock options in fiscal year 2008. Standard terms and conditions will apply to these equity awards. The\nRSUs awarded pursuant to this Paragraph 5 will also be subject to deferred payment if you so elect on the enclosed election form.\nMark Parrish\nNovember 8, 2006\nPage 2\n6.\nUpon appointment to your new position, you will also be awarded a special equity award of 35,000 Cardinal Health restricted share\nunits. This special award of RSUs will vest in full on the third anniversary of the grant date. If you are terminated without cause or if you\nterminate with "good reason" (as defined in paragraph 8 below), RSUs granted under this special equity award will vest in full on the\ndate of such termination. The grant date of this award will also be November 15, 2006. Other than the special vesting provision\ndescribed above, standard terms and conditions will apply to the special equity award. 30,000 of the RSUs under this special equity\naward will also be subject to deferred payment until 6 months after your separation from employment with the Company.\n7.\nYou will continue to be eligible to participate in and receive benefits under other Cardinal Health employee benefit plans and programs\n(e.g., plans and programs that provide medical, life insurance and other welfare and retirement benefits as well as the Company's\nsavings, employee stock purchase and deferred compensation plans) to the same extent as, and on the same terms and conditions as,\nother similarly situated executives of the Company.\n8.\nIf your employment is terminated by the Company without cause, or if you voluntarily terminate your employment for "good reason,"\n(either event being a "Payment Termination"), the Company will provide you with severance equal to the sum of twelve months of your\nbase salary as in effect on the day immediately prior to the date of termination plus your target annual bonus for the fiscal year of the\nCompany in which your termination occurs, such amount to be divided into twelve (12) equal installments. Your severance will be paid\nin equal monthly installments over the 12 month period following the Payment Termination event. In addition if you are not yet age 55\nat the time of a Payment Termination, you will be "bridged" to retirement by deeming the termination to occur at or after your attainment\nof age 55, regardless of your actual age at that time, with such a termination qualifying as a "retirement" under the terms of your\noutstanding equity awards as well as other applicable plans, subject to the terms of such awards and plans, including the plans under\nwhich the equity awards were made. In addition to the benefits of termination by reason of retirement under the terms of your\noutstanding equity awards and other applicable plans, the effect of a "retirement" under any equity awards that do not already provide for\nratable vesting will be to result in the ratable vesting of any unvested stock options or RSUs based on the portion of the remaining\nvesting period elapsed at the date of the Payment Termination. You will be considered to have "good reason" to voluntarily terminate\nemployment only if there is a material diminution of your duties. However, a change in your reporting relationship will not alone\nconstitute such a diminution. If the severance payments are subject to Section 409A of the Internal Revenue Code, Cardinal Health may\ndelay payment of the first seven (7) months of severance payments until after six (6) months and one day from the date of your\ntermination of employment. If payment is delayed, seven (7) installments shall be payable, with interest as described below, as soon\nas\nadministratively practicable after the date which is six (6) months after the termination date, and one (1) installment shall be payable\neach month thereafter for a total of five (5) additional months, with interest credited to the first seven (7) installments as determined\nbased on the "Prime Rate" (as published in the Wall Street Journal) to the date of payment as though one such installment were allocated\nto each month between the termination date and the date of payment.\nMark Parrish\nNovember 8, 2006\nPage 3\n9.\nIf any payments, distributions, accelerated vesting or other benefits ("Payments") are provided in connection with a change in control\nof\nthe Company such that they would constitute a "parachute payment" within the meaning of Section 280G of the Internal Revenue Code,\nthe Payments will be reduced to the extent necessary so that no portion of the Payments will be subject to the excise tax imposed by\nSection 4999 of the Internal Revenue Code. This reduction will only occur, however, if, as a result, the net after-tax benefit to you\nexceeds the net after-tax benefit if no reduction is made. For this purpose, the net after-tax benefit shall be calculated by the Company's\nindependent certified public accountants based on then applicable federal, state, local and foreign income and employment taxes\ncomputed at the maximum marginal rate, and the excise tax under Section 4999 of the Internal Revenue Code. If it is determined that the\nPayments will be reduced, you will be permitted to decide which Payments are to be reduced.\n10.\nEmployment with Cardinal Health is not for any definite period of time and is terminable, with notice, at the will of either you or the\nCompany at any time for any reason. There shall be no contract, express or implied, of employment. However, you agree to be bound by\nthe terms of the attached covenants related to confidentiality and protection of the Company's business interests. This agreement must be\nsigned and delivered to the Company on or before the effective date of your appointment to your new position. In addition, if any of the\nprovisions of this letter agreement are determined to result, directly or indirectly, in a violation of Internal Revenue Code Section 409A,\nthey will be amended to conform to the requirements of such Code Section.\nMark, congratulations on your new position. We all look forward to working with you in your new role.\nSincerely,\n/s/ R. Kerry Clark\nR. Kerry Clark\nEnclosures\nCC: Human Resources\nI\naccept the above terms and conditions of my continued employment and acknowledge that my September 2, 2005 employment agreement\nis\nno longer in effect:\n/s/ Mark W. Parrish\n11/9/06\nMark Parrish\nDate\nConfidentiality and Business Protection Agreement\nThis Confidentiality and Business Protection Agreement ("Agreement") is hereby entered into by and between Mark Parrish ("Executive")\nand\nCardinal Health, Inc., an Ohio Corporation (the "Company") effective as of November 8, 2006.\nIt is hereby agreed as follows:\n1. Consideration and Acknowledgements. The parties acknowledge that the provisions and covenants contained in this Agreement are ancillary\nand material to, and in consideration of, the employment letter agreement between the parties effective as of November 8, 2006, and that the\nlimitations contained herein are reasonable in geographic and temporal scope and do not impose a greater restriction or restraint than is necessary\nto\nprotect the goodwill and other legitimate business interests of the Company. The parties also acknowledge and agree that the provisions of this\nAgreement do not adversely affect the Executive's ability to earn a living in any capacity that does not violate the covenants contained herein. The\nparties further acknowledge and agree that the provisions of Section 9(a) below are accurate and necessary because (i) this Agreement is entered into\nin the State of Ohio, (ii) Ohio has a substantial relationship to the parties and to this transaction, (iii) Ohio is the headquarters state of the Company,\nwhich has operations nationwide and has a compelling interest in having its employees treated uniformly, (iv) the use of Ohio law provides\ncertainty\nto the parties in any covenant litigation in the United States, and (v) enforcement of the provisions of this Agreement would not violate any\nfundamental public policy of Ohio or any other jurisdiction.\n2. Confidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company and all of its subsidiaries,\npartnerships, joint ventures, limited liability companies, and other affiliates (collectively, the "Cardinal Group"), all secret or confidential\ninformation, knowledge or data relating to the Cardinal Group and its businesses (including, without limitation, any proprietary and not publicly\navailable information concerning any processes, methods, trade secrets, research, secret data, costs, names of users or purchasers of their respective\nproducts or services, business methods, operating procedures or programs or methods of promotion and sale) that the Executive has obtained or\nobtains during the Executive's employment by the Cardinal Group and that is not public knowledge (other than as a result of the Executive's\nviolation of this Agreement) ("Confidential Information"). For the purposes of this Agreement, information shall not be deemed to be publicly\navailable merely because it is embraced by general disclosures or because individual features or combinations thereof are publicly available. The\nExecutive shall not communicate, divulge or disseminate Confidential Information at any time during or after the Executive's employment with the\nCardinal Group, except with prior written consent of the applicable Cardinal Group company, or as otherwise required by law or legal process. All\nrecords, files, memoranda, reports, customer lists, drawings, plans, documents and the like that the Executive uses, prepares or comes into contact\nwith during the course of the Executive's employment shall remain the sole property of the Company and/or the Cardinal Group, as applicable, and\nshall be turned over to the applicable Cardinal Group company upon termination of the Executive's employment.\n3.\nNon-Recruitment of Cardinal Group Employees, etc. Executive shall not, at any time during the Restricted Period (as defined in this\nAgreement), without the prior written consent of the Company, engage in the following conduct (a "Solicitation"): (i) directly or indirectly contact,\nsolicit, recruit or employ (whether as an employee, officer, director, agent,\nconsultant or independent contractor) any person who was or is at any time during the previous twelve months an employee, representative, officer\nor director of the Cardinal Group; or (ii) take any action to encourage or induce any employee, representative, officer or director of the Cardinal\nGroup to cease their relationship with the Cardinal Group for any reason. A "Solicitation" does not include any recruitment of employees within\nor\nfor the Cardinal Group. The "Restricted Period" means the period of Executive's employment with the Cardinal Group (without regard to any period\nduring which Executive serves as a consulting employee) and the additional period ending eighteen (18) months after the Executive's date of\ntermination of employment or date of retirement, as applicable.\n4. No Competition Solicitation of Business. During the Restricted Period, the Executive shall not (either directly or indirectly or as an\nofficer, agent, employee, partner or director of any other company, partnership or entity) solicit, service, or accept on behalf of any competitor of\nthe\nCardinal Group the business of (i) any customer of the Cardinal Group at the time of the Executive's employment or date of termination of\nemployment, or (ii) any potential customer of the Cardinal Group which the Executive knew to be an identified, prospective purchaser of services or\nproducts of the Cardinal Group\n5. No Competition Employment by Competitor. During the Restricted Period, the Executive shall not invest in (other than in a publicly\ntraded company with a maximum investment of no more than 1% of outstanding shares), counsel, advise, or be otherwise engaged or employed by,\nany entity or enterprise that competes with the Cardinal Group, by developing, manufacturing or selling any product or service of a type,\nrespectively, developed, manufactured or sold by the Cardinal Group (each such person described, and not excepted, as a customer, potential\ncustomer or a competitor under Section 4 or this Section 5 of this Agreement is a "Competitor").\n6. No Disparagement.\n(a) The Executive and the Company shall at all times refrain from taking actions or making statements, written or oral, that\n(A) denigrate, disparage or defame the goodwill or reputation of Executive or the Cardinal Group, as the case may be, or any of its trustees, officers,\nsecurity holders, partners, agents or former or current employees and directors, or (B) are intended to, or may be reasonably expected to, adversely\naffect the morale of the employees of the Cardinal Group. The Executive further agrees not to make any negative statements to third parties relating\nto the Executive's employment or any aspect of the businesses of Cardinal Group and not to make any statements to third parties about the\ncircumstances of the termination of the Executive's employment, or about the Cardinal Group or its trustees, directors, officers, security holders,\npartners, agents or former or current employees and directors, except as may be required by a court or governmental body.\n(b) The Executive further agrees that, following termination of employment for any reason, the Executive shall assist and cooperate with\nthe Company with regard to any matter or project in which the Executive was involved during the Executive's employment with the Company,\nincluding but not limited to any litigation that may be pending or may arise after such termination of employment. Further, the Executive agrees to\nnotify the Company at the earliest opportunity of any contact that is made by any third parties concerning any such matter or project. The Company\nshall not unreasonably request such cooperation of Executive and shall cooperate with the Executive in scheduling any assistance by the Executive,\ntaking into account the Executive's business and personal affairs, and shall\ncompensate the Executive for any lost wages or expenses associated with such cooperation and assistance.\n7. Inventions. All plans, discoveries and improvements, whether patentable or unpatentable, made or devised by the Executive, whether alone\nor jointly with others, from the date of the Executive's initial employment by the Company and continuing until the end of any period during which\nthe Executive is employed by the Cardinal Group, relating or pertaining in any way to the Executive's employment with or the business of the\nCardinal Group, shall be promptly disclosed in writing to the Secretary of the Board and are hereby transferred to and shall redound to the benefit of\nthe Company, and shall become and remain its sole and exclusive property. The Executive agrees to execute any assignment to the Company or its\nnominee, of the Executive's entire right, title and interest in and to any such discoveries and improvements and to execute any other instruments and\ndocuments requisite or desirable in applying for and obtaining patents, trademarks or copyrights, at the expense of the Company, with respect thereto\nin the United States and in all foreign countries, that may be required by the Company. The Executive further agrees at all times to cooperate to the\nextent and in the manner required by the Company, in the prosecution or defense of any patent or copyright claims or any litigation, or other\nproceeding involving any trade secrets, processes, discoveries or improvements covered by this Agreement, but all necessary expenses thereof shall\nbe paid by the Company.\n8. Acknowledgement and Enforcement. The Executive acknowledges and agrees that: (A) the purpose of the foregoing covenants, including\nwithout limitation the noncompetition covenants of Sections 4 and 5, is to protect the goodwill, trade secrets and other Confidential Information of\nthe Company; (B) because of the nature of the business in which the Cardinal Group is engaged and because of the nature of the Confidential\nInformation to which the Executive has access, the Company would suffer irreparable harm and it would be impractical and excessively difficult\nto\ndetermine the actual damages of the Cardinal Group in the event the Executive breached any of the covenants of this Agreement; and (C) remedies at\nlaw (such as monetary damages) for any breach of the Executive's obligations under this Agreement would be inadequate. The Executive therefore\nagrees and consents that if the Executive commits any breach of a covenant under this Agreement or threatens to commit any such breach, the\nCompany shall have the right (in addition to, and not in lieu of, any other right or remedy that may be available to it) to temporary and permanent\ninjunctive relief from a court of competent jurisdiction, without posting any bond or other security and without the necessity of proof of actual\ndamage.\n9. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without reference to principles\nof conflict of laws. If, under any such law, any portion of this Agreement is at any time deemed to be in conflict with any applicable statute, rule,\nregulation or ordinance, such portion shall be deemed to be modified or altered to conform thereto. The parties hereto irrevocably agree to submit to\nthe jurisdiction and venue of the courts of the State of Ohio in any action or proceeding brought with respect to or in connection with this\nAgreement. The captions of this Agreement are not part of the provisions hereof and shal have no force or effect. This Agreement constitutes\nthe\nentire agreement of the parties with respect to the subject matter hereof. This Agreement may not be amended or modified otherwise than by a\nwritten agreement executed by the parties hereto or their respective successors and legal representatives.\n(b) All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by\nregistered or certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive:\nAt the most recent address on file for the Executive at the Company.\nIf to the Company:\nCardinal Health, Inc.\n7000 Cardinal Place\nDublin, Ohio 43017\nAttention: Chief Legal Officer\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement. If any provision of this Agreement shall be held invalid or unenforceable in part, the remaining portion of such\nprovision, together with all other provisions of this Agreement, shall remain valid and enforceable and continue in full force and effect to the fullest\nextent consistent with the law.\n(d) The Executive's or the Company's failure to insist upon strict compliance with any provision of this Agreement or the failure to\nassert any right the Executive or the Company may have hereunder, shall not be deemed to be a waiver of such provision or right or any other\nprovision or right of this Agreement.\nIN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and the Company has caused these presents to be executed in its\nname and on its behalf, all as of the day and year first above written.\nExecution Date: November 7, 2006\n/s/ Mark W. Parrish\nMARK PARRISH\n/S/R. Kerry Clark\nCARDINAL HEALTH, INC.\nExecution Date: November 8, 2006\nBy: Kerry Clark\nIts: President and Chief Executive Officer	EX-10.01 2 dex1001.htm LETTER AGREEMENT, AND CONFIDENTIALITY AND BUSINESS PROTECTION\nAGREEMENT\nExhibit 10.01\n[Cardinal Health Letterhead]\nNovember 8, 2006\nMark Parrish\nCardinal Health\n7000 Cardinal Place\nDublin, OH 43017\nDear Mark:\nIt is with great pleasure that I confirm in writing your promotion and the terms of your employment in your new position with Cardinal Health, Inc.\n(the “Company” or “Cardinal Health”). This letter will replace your existing employment agreement dated September 2, 2005, which you agree will\nno longer apply:\n1. Your new position will be CEO Healthcare Supply Chain Services. In this position, you will be reporting directly to me. During your\nemployment, you will also serve on the Executive Leadership Team of Cardinal Health. The effective date of your appointment to this\nposition is November 8, 2006.\n2. Your annual base salary will be $700,000.00, and your cash compensation profile will be reviewed at regular annual intervals by the\nHuman Resources and Compensation Committee of the Board of Directors (Compensation Committee), along with all other officers of\nCardinal Health.\n3. You will continue to participate in our Management Incentive Plan (MIP). Your target annual incentive will be 100% of your base salary.\nYour base salary and incentive for the remainder of fiscal year 2007 (ending June 30, 2007) will be ratably adjusted to reflect the\ncompensation of your new position.\n4. You will also continue to participate in the Long-Term Incentive Cash Program for Fiscal Years 2006 – FY2008 (LTICP). Your target\nopportunity in the LTICP is your cumulative MIP payouts during the performance period.\n5. Upon appointment to your new position, you will receive an award of 35,000 Cardinal Health stock options along with an award of\n5,000 Cardinal Health restricted share units (RSUs). These and the equity grants made in August 2006 will represent your fiscal year\n2007 awards. Your additional award of 35,000 stock options will vest in annual installments of 25% on each of the first four\nanniversaries of the grant date. The additional award of 5,000 restricted share units will vest in annual installments of 33.33% on each of\nthe first three anniversaries of the grant date. The grant date of these awards will be November 15, 2006. You will be eligible for the next\nregular annual award of stock or stock options in fiscal year 2008. Standard terms and conditions will apply to these equity awards. The\nRSUs awarded pursuant to this Paragraph 5 will also be subject to deferred payment if you so elect on the enclosed election form.\nMark Parrish\nNovember 8, 2006\nPage 2\n6. Upon appointment to your new position, you will also be awarded a special equity award of 35,000 Cardinal Health restricted share\nunits. This special award of RSUs will vest in full on the third anniversary of the grant date. If you are terminated without cause or if you\nterminate with “good reason” (as defined in paragraph 8 below), RSUs granted under this special equity award will vest in full on the\ndate of such termination. The grant date of this award will also be November 15, 2006. Other than the special vesting provision\ndescribed above, standard terms and conditions will apply to the special equity award. 30,000 of the RSUs under this special equity\naward will also be subject to deferred payment until 6 months after your separation from employment with the Company.\n7. You will continue to be eligible to participate in and receive benefits under other Cardinal Health employee benefit plans and programs\n(e.g., plans and programs that provide medical, life insurance and other welfare and retirement benefits as well as the Company’s\nsavings, employee stock purchase and deferred compensation plans) to the same extent as, and on the same terms and conditions as,\nother similarly situated executives of the Company.\n8. If your employment is terminated by the Company without cause, or if you voluntarily terminate your employment for “good reason,”\n(either event being a “Payment Termination”), the Company will provide you with severance equal to the sum of twelve months of your\nbase salary as in effect on the day immediately prior to the date of termination plus your target annual bonus for the fiscal year of the\nCompany in which your termination occurs, such amount to be divided into twelve (12) equal installments. Your severance will be paid\nin equal monthly installments over the 12 month period following the Payment Termination event. In addition, if you are not yet age 55\nat the time of a Payment Termination, you will be “bridged” to retirement by deeming the termination to occur at or after your attainment\nof age 55, regardless of your actual age at that time, with such a termination qualifying as a “retirement” under the terms of your\noutstanding equity awards as well as other applicable plans, subject to the terms of such awards and plans, including the plans under\nwhich the equity awards were made. In addition to the benefits of termination by reason of retirement under the terms of your\noutstanding equity awards and other applicable plans, the effect of a “retirement” under any equity awards that do not already provide for\nratable vesting will be to result in the ratable vesting of any unvested stock options or RSUs based on the portion of the remaining\nvesting period elapsed at the date of the Payment Termination. You will be considered to have “good reason” to voluntarily terminate\nemployment only if there is a material diminution of your duties. However, a change in your reporting relationship will not alone\nconstitute such a diminution. If the severance payments are subject to Section 409A of the Internal Revenue Code, Cardinal Health may\ndelay payment of the first seven (7) months of severance payments until after six (6) months and one day from the date of your\ntermination of employment. If payment is delayed, seven (7) installments shall be payable, with interest as described below, as soon as\nadministratively practicable after the date which is six (6) months after the termination date, and one (1) installment shall be payable\neach month thereafter for a total of five (5) additional months, with interest credited to the first seven (7) installments as determined\nbased on the “Prime Rate” (as published in the Wall Street Journal) to the date of payment as though one such installment were allocated\nto each month between the termination date and the date of payment.\nMark Parrish\nNovember 8, 2006\nPage 3\n9. If any payments, distributions, accelerated vesting or other benefits (“Payments”) are provided in connection with a change in control of\nthe Company such that they would constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code,\nthe Payments will be reduced to the extent necessary so that no portion of the Payments will be subject to the excise tax imposed by\nSection 4999 of the Internal Revenue Code. This reduction will only occur, however, if, as a result, the net after-tax benefit to you\nexceeds the net after-tax benefit if no reduction is made. For this purpose, the net after-tax benefit shall be calculated by the Company’s\nindependent certified public accountants based on then applicable federal, state, local and foreign income and employment taxes\ncomputed at the maximum marginal rate, and the excise tax under Section 4999 of the Internal Revenue Code. If it is determined that the\nPayments will be reduced, you will be permitted to decide which Payments are to be reduced.\n10. Employment with Cardinal Health is not for any definite period of time and is terminable, with notice, at the will of either you or the\nCompany at any time for any reason. There shall be no contract, express or implied, of employment. However, you agree to be bound by\nthe terms of the attached covenants related to confidentiality and protection of the Company’s business interests. This agreement must be\nsigned and delivered to the Company on or before the effective date of your appointment to your new position. In addition, if any of the\nprovisions of this letter agreement are determined to result, directly or indirectly, in a violation of Internal Revenue Code Section 409A,\nthey will be amended to conform to the requirements of such Code Section.\nMark, congratulations on your new position. We all look forward to working with you in your new role.\nSincerely,\n/s/ R. Kerry Clark\nR. Kerry Clark\nEnclosures\ncc: Human Resources\nI accept the above terms and conditions of my continued employment and acknowledge that my September 2, 2005 employment agreement is\nno longer in effect:\n/s/ Mark W. Parrish\n11/9/06\nMark Parrish\nDate\nConfidentiality and Business Protection Agreement\nThis Confidentiality and Business Protection Agreement (“Agreement”) is hereby entered into by and between Mark Parrish (“Executive”) and\nCardinal Health, Inc., an Ohio Corporation (the “Company”) effective as of November 8, 2006.\nIt is hereby agreed as follows:\n1. Consideration and Acknowledgements. The parties acknowledge that the provisions and covenants contained in this Agreement are ancillary\nand material to, and in consideration of, the employment letter agreement between the parties effective as of November 8, 2006, and that the\nlimitations contained herein are reasonable in geographic and temporal scope and do not impose a greater restriction or restraint than is necessary to\nprotect the goodwill and other legitimate business interests of the Company. The parties also acknowledge and agree that the provisions of this\nAgreement do not adversely affect the Executive’s ability to earn a living in any capacity that does not violate the covenants contained herein. The\nparties further acknowledge and agree that the provisions of Section 9(a) below are accurate and necessary because (i) this Agreement is entered into\nin the State of Ohio, (ii) Ohio has a substantial relationship to the parties and to this transaction, (iii) Ohio is the headquarters state of the Company,\nwhich has operations nationwide and has a compelling interest in having its employees treated uniformly, (iv) the use of Ohio law provides certainty\nto the parties in any covenant litigation in the United States, and (v) enforcement of the provisions of this Agreement would not violate any\nfundamental public policy of Ohio or any other jurisdiction.\n2. Confidential Information. The Executive shall hold in a fiduciary capacity for the benefit of the Company and all of its subsidiaries,\npartnerships, joint ventures, limited liability companies, and other affiliates (collectively, the “Cardinal Group”), all secret or confidential\ninformation, knowledge or data relating to the Cardinal Group and its businesses (including, without limitation, any proprietary and not publicly\navailable information concerning any processes, methods, trade secrets, research, secret data, costs, names of users or purchasers of their respective\nproducts or services, business methods, operating procedures or programs or methods of promotion and sale) that the Executive has obtained or\nobtains during the Executive’s employment by the Cardinal Group and that is not public knowledge (other than as a result of the Executive’s\nviolation of this Agreement) (“Confidential Information”). For the purposes of this Agreement, information shall not be deemed to be publicly\navailable merely because it is embraced by general disclosures or because individual features or combinations thereof are publicly available. The\nExecutive shall not communicate, divulge or disseminate Confidential Information at any time during or after the Executive’s employment with the\nCardinal Group, except with prior written consent of the applicable Cardinal Group company, or as otherwise required by law or legal process. All\nrecords, files, memoranda, reports, customer lists, drawings, plans, documents and the like that the Executive uses, prepares or comes into contact\nwith during the course of the Executive’s employment shall remain the sole property of the Company and/or the Cardinal Group, as applicable, and\nshall be turned over to the applicable Cardinal Group company upon termination of the Executive’s employment.\n3. Non-Recruitment of Cardinal Group Employees, etc. Executive shall not, at any time during the Restricted Period (as defined in this\nAgreement), without the prior written consent of the Company, engage in the following conduct (a “Solicitation”): (i) directly or indirectly contact,\nsolicit, recruit or employ (whether as an employee, officer, director, agent,\nconsultant or independent contractor) any person who was or is at any time during the previous twelve months an employee, representative, officer\nor director of the Cardinal Group; or (ii) take any action to encourage or induce any employee, representative, officer or director of the Cardinal\nGroup to cease their relationship with the Cardinal Group for any reason. A “Solicitation” does not include any recruitment of employees within or\nfor the Cardinal Group. The “Restricted Period” means the period of Executive’s employment with the Cardinal Group (without regard to any period\nduring which Executive serves as a consulting employee) and the additional period ending eighteen (18) months after the Executive’s date of\ntermination of employment or date of retirement, as applicable.\n4. No Competition — Solicitation of Business. During the Restricted Period, the Executive shall not (either directly or indirectly or as an\nofficer, agent, employee, partner or director of any other company, partnership or entity) solicit, service, or accept on behalf of any competitor of the\nCardinal Group the business of (i) any customer of the Cardinal Group at the time of the Executive’s employment or date of termination of\nemployment, or (ii) any potential customer of the Cardinal Group which the Executive knew to be an identified, prospective purchaser of services or\nproducts of the Cardinal Group.\n5. No Competition — Employment by Competitor. During the Restricted Period, the Executive shall not invest in (other than in a publicly\ntraded company with a maximum investment of no more than 1% of outstanding shares), counsel, advise, or be otherwise engaged or employed by,\nany entity or enterprise that competes with the Cardinal Group, by developing, manufacturing or selling any product or service of a type,\nrespectively, developed, manufactured or sold by the Cardinal Group (each such person described, and not excepted, as a customer, potential\ncustomer or a competitor under Section 4 or this Section 5 of this Agreement is a “Competitor”).\n6. No Disparagement.\n(a) The Executive and the Company shall at all times refrain from taking actions or making statements, written or oral, that\n(A) denigrate, disparage or defame the goodwill or reputation of Executive or the Cardinal Group, as the case may be, or any of its trustees, officers,\nsecurity holders, partners, agents or former or current employees and directors, or (B) are intended to, or may be reasonably expected to, adversely\naffect the morale of the employees of the Cardinal Group. The Executive further agrees not to make any negative statements to third parties relating\nto the Executive’s employment or any aspect of the businesses of Cardinal Group and not to make any statements to third parties about the\ncircumstances of the termination of the Executive’s employment, or about the Cardinal Group or its trustees, directors, officers, security holders,\npartners, agents or former or current employees and directors, except as may be required by a court or governmental body.\n(b) The Executive further agrees that, following termination of employment for any reason, the Executive shall assist and cooperate with\nthe Company with regard to any matter or project in which the Executive was involved during the Executive’s employment with the Company,\nincluding but not limited to any litigation that may be pending or may arise after such termination of employment. Further, the Executive agrees to\nnotify the Company at the earliest opportunity of any contact that is made by any third parties concerning any such matter or project. The Company\nshall not unreasonably request such cooperation of Executive and shall cooperate with the Executive in scheduling any assistance by the Executive,\ntaking into account the Executive’s business and personal affairs, and shall\ncompensate the Executive for any lost wages or expenses associated with such cooperation and assistance.\n7. Inventions. All plans, discoveries and improvements, whether patentable or unpatentable, made or devised by the Executive, whether alone\nor jointly with others, from the date of the Executive’s initial employment by the Company and continuing until the end of any period during which\nthe Executive is employed by the Cardinal Group, relating or pertaining in any way to the Executive’s employment with or the business of the\nCardinal Group, shall be promptly disclosed in writing to the Secretary of the Board and are hereby transferred to and shall redound to the benefit of\nthe Company, and shall become and remain its sole and exclusive property. The Executive agrees to execute any assignment to the Company or its\nnominee, of the Executive’s entire right, title and interest in and to any such discoveries and improvements and to execute any other instruments and\ndocuments requisite or desirable in applying for and obtaining patents, trademarks or copyrights, at the expense of the Company, with respect thereto\nin the United States and in all foreign countries, that may be required by the Company. The Executive further agrees at all times to cooperate to the\nextent and in the manner required by the Company, in the prosecution or defense of any patent or copyright claims or any litigation, or other\nproceeding involving any trade secrets, processes, discoveries or improvements covered by this Agreement, but all necessary expenses thereof shall\nbe paid by the Company.\n8. Acknowledgement and Enforcement. The Executive acknowledges and agrees that: (A) the purpose of the foregoing covenants, including\nwithout limitation the noncompetition covenants of Sections 4 and 5, is to protect the goodwill, trade secrets and other Confidential Information of\nthe Company; (B) because of the nature of the business in which the Cardinal Group is engaged and because of the nature of the Confidential\nInformation to which the Executive has access, the Company would suffer irreparable harm and it would be impractical and excessively difficult to\ndetermine the actual damages of the Cardinal Group in the event the Executive breached any of the covenants of this Agreement; and (C) remedies at\nlaw (such as monetary damages) for any breach of the Executive’s obligations under this Agreement would be inadequate. The Executive therefore\nagrees and consents that if the Executive commits any breach of a covenant under this Agreement or threatens to commit any such breach, the\nCompany shall have the right (in addition to, and not in lieu of, any other right or remedy that may be available to it) to temporary and permanent\ninjunctive relief from a court of competent jurisdiction, without posting any bond or other security and without the necessity of proof of actual\ndamage.\n9. Miscellaneous.\n(a) This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without reference to principles\nof conflict of laws. If, under any such law, any portion of this Agreement is at any time deemed to be in conflict with any applicable statute, rule,\nregulation or ordinance, such portion shall be deemed to be modified or altered to conform thereto. The parties hereto irrevocably agree to submit to\nthe jurisdiction and venue of the courts of the State of Ohio in any action or proceeding brought with respect to or in connection with this\nAgreement. The captions of this Agreement are not part of the provisions hereof and shall have no force or effect. This Agreement constitutes the\nentire agreement of the parties with respect to the subject matter hereof. This Agreement may not be amended or modified otherwise than by a\nwritten agreement executed by the parties hereto or their respective successors and legal representatives.\n(b) All notices and other communications hereunder shall be in writing and shall be given by hand delivery to the other party or by\nregistered or certified mail, return receipt requested, postage prepaid, addressed as follows:\nIf to the Executive:\nAt the most recent address on file for the Executive at the Company.\nIf to the Company: Cardinal Health, Inc.\n7000 Cardinal Place\nDublin, Ohio 43017\nAttention: Chief Legal Officer\nor to such other address as either party shall have furnished to the other in writing in accordance herewith. Notice and communications shall be\neffective when actually received by the addressee.\n(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement. If any provision of this Agreement shall be held invalid or unenforceable in part, the remaining portion of such\nprovision, together with all other provisions of this Agreement, shall remain valid and enforceable and continue in full force and effect to the fullest\nextent consistent with the law.\n(d) The Executive’s or the Company’s failure to insist upon strict compliance with any provision of this Agreement or the failure to\nassert any right the Executive or the Company may have hereunder, shall not be deemed to be a waiver of such provision or right or any other\nprovision or right of this Agreement.\nIN WITNESS WHEREOF, the Executive has hereunto set the Executive’s hand and the Company has caused these presents to be executed in its\nname and on its behalf, all as of the day and year first above written.\nExecution Date: November 7, 2006\n/s/ Mark W. Parrish\nMARK PARRISH\n/s/ R. Kerry Clark\nCARDINAL HEALTH, INC.\nExecution Date: November 8, 2006\nBy: Kerry Clark\nIts: President and Chief Executive Officer
+cf34c9403e0092eca75ed9fc61284268.pdf	effective_date jurisdiction party term	EX1A-6 MAT CTRCT 10 filename10.htm\nExhibit 1A-6D\nAMERICAN HOMEOWNER PRESERVATION\nINVENTION, NON-DISCLOSURE, AND NON-COMPETITION AGREEMENT\nThis is an Agreement, entered into on January 15, 2018, by and among DeAnn O'Donovan ("Executive"), AHP Servicing, LLC\n("Servicing"), and AHP Capital Management, LLC ("Capital Management"), Servicing and Capital Management are sometimes referred to as\n"the Companies") in this Agreement.\nBackground\nI.\nExecutive renders services to the Companies pursuant to an Executive Employment Agreement (the "Employment Agreement").\nII.\nThe parties wish to set forth certain restrictions concerning confidential information, inventions, and competition.\nNOW, THEREFORE, intending to be legally bound and acknowledging the receipt of adequate consideration, the parties hereby agree as\nfollows:\n1. Confidential Information.\n1.1 Defined. For purposes of this Agreement, "Confidential Information" means all information not generally known to the public or in\nthe mortgage industry, in spoken, printed, electronic or any other form or medium, relating to the Companies or their businesses.\nConfidential Information includes, but is not limited to, processes, methods, policies, plans, documents, strategies, agreements, transactions,\nnegotiations, know-how, trade secrets, computer software, applications, databases, manuals, records, supplier information, vendor\ninformation, financial information, accounting records, legal information, pricing information, credit information, personnel information,\nsecurity procedures, market studies, sales information, inventions, and customer information. Executive understands that the above list is not\nexhaustive, and that Confidential Information also includes other information that is marked or otherwise identified as confidential or\nproprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which\nthe information is known or used. Executive further understands that Confidential Information includes information developed by her in the\ncourse of her employment that meets the definition of Confidential Information set forth above. Notwithstanding the foregoing, Confidential\nInformation shall not include information that is generally available to and known by the public or in the mortgage industry, provided that\nthe disclosure of such information to the public or the mortgage industry was not the result of direct or indirect action of Executive (or one\nor more person(s) acting on Executive's behalf) in violation of Executive's obligations pursuant to this Agreement.\n1.2\nDisclosure and Use Restrictions. Executive shall (i) treat all Confidential Information as strictly confidential; (ii) not directly or\nindirectly disclose Confidential Information, or allow it to be disclosed, except as required or deemed appropriate by Executive in her\nreasonable discretion in the performance of Executive's duties for the Companies; and (iii) not access or use any Confidential Information,\nand not copy any documents, records, files, media, or other resources containing any Confidential Information, or remove any such\ndocuments, records, files, media, or other resources from the premises or control of the Companies, except as required or deemed\nappropriate by Executive in her reasonable discretion in the performance of Executive's duties for the Companies. The preceding sentence\nshall not prohibit Executive from disclosing Confidential Information as required by applicable law or regulation, or pursuant to the valid\norder of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of\ndisclosure required by such law, regulation, or order and, to the extent permitted by applicable law, Executive gives the Companies prompt\nnotice of such requirement.\n1.3 Ownership of Property. All files, letters, memoranda, reports, records, data, sketches, drawings, and all other written, photographic,\nor other tangible material containing Confidential Information, whether created by Executive or others, which shall come into her custody or\npossession, shall be and are the exclusive property of the Companies to be used by Executive only in the performance of her duties for the\nCompanies. All such materials or copies thereof and all tangible property of the Companies in the custody or possession of Executive shall\nbe delivered to the Companies, upon the earlier of (i) a request by the Companies or (ii) termination of Executive's employment by the\nCompanies. After such delivery, Executive shall not retain any such materials or copies thereof or any such tangible property; provided, that\nnotwithstanding the foregoing Executive may retain records related to the terms and conditions of her employment (including but not limited\nto her Employment Agreement and this Agreement) and her ownership of equity interests in the Company.\n1\n1.4 Information and Property of Others. The obligations of Executive under this section 1 shall apply to information and materials of\ncustomers and suppliers of the Companies and other third parties who may have disclosed or entrusted the same to the Companies or to\nExecutive.\n2.\nInventions.\n2.1\nDisclosure. Executive will make full and prompt disclosure to the Companies of all inventions, improvements, software, and other\nintellectual property, whether patentable or not, which are created, made, conceived or reduced to practice by Executive or under Executive's\ndirection or jointly with others during the period of her employment which relate to the then current or planned businesses of the Companies,\nwhether or not during normal working hours or on the premises of the Companies, or which are otherwise created, made, conceived or\nreduced to practice by Executive or under Executive's direction or jointly with others during the term of her employment using tools,\nequipment or other assets of the Companies ("Developments").\n2.2\nAssignment. Executive agrees to assign, and upon development by Executive of any element of intellectual property does\nautomatically assign, to the Companies, ownership of all United States and international copyrights, patents, and other intellectual property\nrights in each Development. Executive shall cooperate with the Companies in obtaining, maintaining, and enforcing all intellectual property\nrights relating to Developments, as the Companies deems necessary or appropriate. This assignment is undertaken in part as a contingency\nagainst the possibility that any such Development, by operation of law, may not be considered a work made for hire by Executive for the\nCompanies. Executive also hereby waives all claims to moral rights in any Developments.\n3.\nNon-Solicitation.\n3.1 Customers. For as long as she is performing services on behalf of the Companies and for a period of twelve (12) months thereafter,\nExecutive shall not initiate contact or communicate, directly or indirectly, with any entity for which the Companies have provided mortgage\nservicing within the previous twelve (12) months in an effort to induce such person to use a different provider.\n3.2 Employees and Independent Contractors. For as long as she is performing services on behalf of the Companies and for a period of\ntwelve (12) months thereafter, Executive shall not hire any employees or individual independent contractors of the Companies or their\naffiliates, or initiate contact or communicate, directly or indirectly, with any such persons in an effort to induce such persons to terminate\ntheir relationship with the Companies or their affiliates; provided, that (i) the foregoing shall not apply with respect to employees and\nindependent contractors who respond to general advertisements regarding hiring of employees or engagement of independent contractors or\nrespond to inquiries by independent recruiting firms not resulting from direction to such firms to include employees or independent\ncontractors of the Companies in such solicitation activities, and (ii) in the event Executive's employment with the Companies is terminated\nby Executive for Good Reason or by the Company without Cause (as such terms are defined in the Employment Agreement), the foregoing\nrestrictions shall not apply with respect to the individuals listed on Schedule 3.2 .\n2\n4.\nNon-Competition. For as long as she is performing services on behalf of the Companies and for a period of twelve (12) months\nthereafter, Executive shall not participate, directly or indirectly, as an owner, employee, consultant, or otherwise, in any proprietorship,\ncorporation, partnership, or other entity, engaged in purchasing or investing in "non-performing" distressed residential mortgage loans;\nprovided, that the foregoing shall not prohibit or restrict Executive from being an owner, employee, consultant, or otherwise, in any\nproprietorship, corporation, partnership, or other entity, which is engaged in the business of purchasing or investing in "nonperforming"\ndistressed residential mortgage loans among multiple businesses so long as Executive is not personally involved in the operations of the\nbusiness with respect to purchasing or investing in "non-performing" distressed residential mortgage loans. Due to the nature of the businesses\nconducted by the Companies, Executive acknowledges that the foregoing restrictions shall have no geographic limitation.\n5.\nAcknowledgment. Executive represents and warrants that (i) her knowledge, skills and abilities are sufficient to permit her to earn a\nsatisfactory livelihood without violating any provision of this Agreement; (ii) the restrictions set forth in this Agreement are necessary to protect\nthe legitimate proprietary interests of the Companies, and (iii) she has received adequate consideration for her agreement to the restrictions set\nforth herein, including but not limited to an equity interest in the Companies or their affiliates.\n6.\nRemedies. Executive acknowledges that a breach of this Agreement will cause great and irreparable injury and damage, which cannot be\nreasonably or adequately compensated by money damages. Accordingly, Executive acknowledges that the remedies of injunction and specific\nperformance shall be available in the event of such a breach, in addition to money damages or other legal or equitable remedies. Any period of\nrestriction set forth in this Agreement shall be extended for a period of time equal to the duration of any breach or violation hereof.\n7.\nNotification. Any person employing Executive or evidencing any intention to employ Executive may be notified as to the existence and\nprovisions of this Agreement.\n8.\nSurvival. The provisions of this Agreement shall survive the expiration or termination of the relationship whereby Executive renders\nservices to the Companies.\n9.\nModification of Covenants; Enforceability. In the event that any provision of this Agreement is held to be in any respect an\nunreasonable restriction, then the court so holding may modify the terms thereof, including the period of time during which it operates or the\ngeographic area to which it applies, or effect any other change to the extent necessary to render this Agreement enforceable, it being\nacknowledged by the parties that the representations and covenants set forth herein are of the essence to the relationship between the Companies\nand Executive.\n10.\nNo Employment Contract. Nothing in this Agreement shall be construed as giving Executive the right to render services on behalf of\nthe Companies or its affiliates for compensation. Except as otherwise provided in other written agreements, including the Employment\nAgreement, the Companies may terminate their relationship with Executive at will.\n11.\nMiscellaneous.\n11.1\nAmendments; Waivers. No amendment, modification, or waiver of any provision of this Agreement shall be binding unless in\nwriting and signed by the party against whom the operation of such amendment, modification, or waiver is sought to be enforced. No delay\nin the exercise of any right shall be deemed a waiver thereof, nor shall the waiver of a right or remedy in a particular instance constitute a\nwaiver of such right or remedy generally.\n11.2\nNotices. Any notice or document required or permitted to be given under this Agreement may be given by a party or by its legal\ncounsel and shall be deemed to be given (i) one day after the date such notice is deposited with a commercial overnight delivery service with\ndelivery fees paid, to the principal business address of the Companies or the address of Executive on file with the Companies, as applicable;\nor (ii) on the date transmitted by electronic mail to jNewbery@ahpfund.com in the case of the Companies and to deann1890@gmail.com in\nthe case of Executive, in each case with transmission receipt acknowledgment from the recipient by non-automated email response or other\nwritten confirmation of receipt. A party may change its own notice address by giving notice satisfactory under this section.\n3\n11.3\nGoverning Law. This Agreement shall be governed by the internal laws of Illinois without giving effect to the principles of\nconflicts of laws. Each party hereby consents to the personal jurisdiction of the Federal or Illinois courts located in or most geographically\nconvenient to Cook County, Illinois, and agrees that all disputes arising from this Agreement shall be prosecuted in such courts. Each party\nhereby agrees that any such court shall have in personam jurisdiction over such party and consents to service of process by notice sent by\nregular mail to the address set forth above and/or by any means authorized by Illinois law.\n11.4\nLanguage Construction. The language of this Agreement shall be construed in accordance with its fair meaning and not for or\nagainst any party. The parties acknowledge that each party and its counsel have reviewed and had the opportunity to participate in the\ndrafting of this Agreement and, accordingly, that the rule of construction that would resolve ambiguities in favor of non-drafting parties shall\nnot apply to the interpretation of this Agreement.\n11.5\nNo Offer. The submission of this Agreement by any party for the review and/or execution by another party does not constitute an\noffer or reservation of rights for the benefit of any party. This Agreement shall become effective, and the parties shall become legally bound,\nonly if and when all parties have executed this Agreement.\n11.6\nSignatures. This Agreement may be signed in counterparts, each of which shall be deemed to be a fully-executed original. An\noriginal signature transmitted by email shall be deemed to be original for purposes of this Agreement. This Agreement may be signed\nelectronically, e.g., via DocuSign.\n11.7\nBinding Effect. This Agreement shall inure to the benefit of the respective heirs, legal representatives and permitted assigns of\neach party, and shall be binding upon the heirs, legal representatives, successors and assigns of each party.\n11.8\nTitles and Captions. All article, section and paragraph titles and captions contained in this Agreement are for convenience only\nand are not deemed a part of the context hereof.\n11.9 Pronouns and Plurals. All pronouns and any variations thereof are deemed to refer to the masculine, feminine, neuter, singular or\nplural as the identity of the person or persons may require.\n11.10\nDays. Any period of days mandated under this Agreement shall be determined by reference to calendar days, not business days,\nexcept that any payments, notices, or other performance falling due on a Saturday, Sunday, or federal government holiday shall be\nconsidered timely if paid, given, or performed on the next succeeding business day.\n11.11\nEntire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and\nsupersedes all prior agreements and understandings.\n4\nIN WITNESS WHEREOF, the parties have signed this Agreement effective on the date first written above.\nAFIP SERVICING, LLC\nBy /s/ Jorge Newbery\nJorge Newbery, CEO\nAFIP CAPITAL MANAGEMENT, LLC\nBy /s/ Jorge Newbery\nJorge Newbery, Manager\nBy /s/ DeAnn O’Donovan\nDeAnn O’Donovan\n5\nSCHEDULE 3.2\nExcluded Persons\nMary Anne Batara\nTom Sang\nChristine Wujek\nEleni Marudas\nIrene Calzadilla\nStephanie Boban\n6	EX1A-6 MAT CTRCT 10 filename10.htm Exhibit 1A-6D AMERICAN HOMEOWNER PRESERVATION\nINVENTION, NON-DISCLOSURE, AND NON-COMPETITION AGREEMENT\nThis is an Agreement, entered into on January 15, 2018, by and among DeAnn O'Donovan ("Executive"), AHP Servicing, LLC\n("Servicing"), and AHP Capital Management, LL.C ("Capital Management"), Servicing and Capital Management are sometimes referred to as "the Companies") in this Agreement. Background\nL Executive renders services to the Companies pursuant to an Executive Employment Agreement (the "Employment Agreement").\nII. The parties wish to set forth certain restrictions concerning confidential information, inventions, and competition.\nNOW, THEREFORE, intending to be legally bound and acknowledging the receipt of adequate consideration, the parties hereby agree as\nfollows:\n1. Confidential Information.\n1.1 Defined. For purposes of this Agreement, "Confidential Information" means all information not generally known to the public or in\nthe mortgage industry, in spoken, printed, electronic or any other form or medium, relating to the Companies or their businesses.\nConfidential Information includes, but is not limited to, processes, methods, policies, plans, documents, strategies, agreements, transactions,\nnegotiations, know-how, trade secrets, computer software, applications, databases, manuals, records, supplier information, vendor\ninformation, financial information, accounting records, legal information, pricing information, credit information, personnel information,\nsecurity procedures, market studies, sales information, inventions, and customer information. Executive understands that the above list is not\nexhaustive, and that Confidential Information also includes other information that is marked or otherwise identified as confidential or\nproprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which\nthe information is known or used. Executive further understands that Confidential Information includes information developed by her in the\ncourse of her employment that meets the definition of Confidential Information set forth above. Notwithstanding the foregoing, Confidential\nInformation shall not include information that is generally available to and known by the public or in the mortgage industry, provided that\nthe disclosure of such information to the public or the mortgage industry was not the result of direct or indirect action of Executive (or one\nor more person(s) acting on Executive's behalf) in violation of Executive's obligations pursuant to this Agreement.\n1.2 Disclosure and Use Restrictions. Executive shall (i) treat all Confidential Information as strictly confidential; (ii) not directly or\nindirectly disclose Confidential Information, or allow it to be disclosed, except as required or deemed appropriate by Executive in her\nreasonable discretion in the performance of Executive's duties for the Companies; and (iii) not access or use any Confidential Information,\nand not copy any documents, records, files, media, or other resources containing any Confidential Information, or remove any such\ndocuments, records, files, media, or other resources from the premises or control of the Companies, except as required or deemed\nappropriate by Executive in her reasonable discretion in the performance of Executive's duties for the Companies. The preceding sentence\nshall not prohibit Executive from disclosing Confidential Information as required by applicable law or regulation, or pursuant to the valid\norder of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of\ndisclosure required by such law, regulation, or order and, to the extent permitted by applicable law, Executive gives the Companies prompt\nnotice of such requirement.\n1.3 Ownership of Property. All files, letters, memoranda, reports, records, data, sketches, drawings, and all other written, photographic,\nor other tangible material containing Confidential Information, whether created by Executive or others, which shall come into her custody or\npossession, shall be and are the exclusive property of the Companies to be used by Executive only in the performance of her duties for the\nCompanies. All such materials or copies thereof and all tangible property of the Companies in the custody or possession of Executive shall\nbe delivered to the Companies, upon the earlier of (i) a request by the Companies or (ii) termination of Executive's employment by the\nCompanies. After such delivery, Executive shall not retain any such materials or copies thereof or any such tangible property; provided, that\nnotwithstanding the foregoing Executive may retain records related to the terms and conditions of her employment (including but not limited\nto her Employment Agreement and this Agreement) and her ownership of equity interests in the Company.\n1.4 Information and Property of Others. The obligations of Executive under this section 1 shall apply to information and materials of\ncustomers and suppliers of the Companies and other third parties who may have disclosed or entrusted the same to the Companies or to\nExecutive.\nInventions.\n2.1 Disclosure. Executive will make full and prompt disclosure to the Companies of all inventions, improvements, software, and other\nintellectual property, whether patentable or not, which are created, made, conceived or reduced to practice by Executive or under Executive's\ndirection or jointly with others during the period of her employment which relate to the then current or planned businesses of the Companies,\nwhether or not during normal working hours or on the premises of the Companies, or which are otherwise created, made, conceived or\nreduced to practice by Executive or under Executive's direction or jointly with others during the term of her employment using tools,\nequipment or other assets of the Companies ("Developments").\n2.2 Assignment. Executive agrees to assign, and upon development by Executive of any element of intellectual property does\nautomatically assign, to the Companies, ownership of all United States and international copyrights, patents, and other intellectual property\nrights in each Development. Executive shall cooperate with the Companies in obtaining, maintaining, and enforcing all intellectual property\nrights relating to Developments, as the Companies deems necessary or appropriate. This assignment is undertaken in part as a contingency\nagainst the possibility that any such Development, by operation of law, may not be considered a work made for hire by Executive for the\nCompanies. Executive also hereby waives all claims to moral rights in any Developments.\nNon-Solicitation.\n3.1 Customers. For as long as she is performing services on behalf of the Companies and for a period of twelve (12) months thereafter,\nExecutive shall not initiate contact or communicate, directly or indirectly, with any entity for which the Companies have provided mortgage\nservicing within the previous twelve (12) months in an effort to induce such person to use a different provider.\n3.2  Employees and Independent Contractors. For as long as she is performing services on behalf of the Companies and for a period of\ntwelve (12) months thereafter, Executive shall not hire any employees or individual independent contractors of the Companies or their\naffiliates, or initiate contact or communicate, directly or indirectly, with any such persons in an effort to induce such persons to terminate\ntheir relationship with the Companies or their affiliates; provided, that (i) the foregoing shall not apply with respect to employees and\nindependent contractors who respond to general advertisements regarding hiring of employees or engagement of independent contractors or\nrespond to inquiries by independent recruiting firms not resulting from direction to such firms to include employees or independent\ncontractors of the Companies in such solicitation activities, and (ii) in the event Executive's employment with the Companies is terminated\nby Executive for Good Reason or by the Company without Cause (as such terms are defined in the Employment Agreement), the foregoing\nrestrictions shall not apply with respect to the individuals listed on Schedule 3.2.\n4. Non-Competition. For as long as she is performing services on behalf of the Companies and for a period of twelve (12) months\nthereafter, Executive shall not participate, directly or indirectly, as an owner, employee, consultant, or otherwise, in any proprietorship,\ncorporation, partnership, or other entity, engaged in purchasing or investing in "non-performing" distressed residential mortgage loans;\nprovided, that the foregoing shall not prohibit or restrict Executive from being an owner, employee, consultant, or otherwise, in any\nproprietorship, corporation, partnership, or other entity, which is engaged in the business of purchasing or investing in "nonperforming"\ndistressed residential mortgage loans among multiple businesses so long as Executive is not personally involved in the operations of the\nbusiness with respect to purchasing or investing in "non-performing" distressed residential mortgage loans. Due to the nature of the businesses\nconducted by the Companies, Executive acknowledges that the foregoing restrictions shall have no geographic limitation.\n5. Acknowledgment. Executive represents and warrants that (i) her knowledge, skills and abilities are sufficient to permit her to earn a\nsatisfactory livelihood without violating any provision of this Agreement; (ii) the restrictions set forth in this Agreement are necessary to protect\nthe legitimate proprietary interests of the Companies, and (iii) she has received adequate consideration for her agreement to the restrictions set\nforth herein, including but not limited to an equity interest in the Companies or their affiliates.\n6. Remedies. Executive acknowledges that a breach of this Agreement will cause great and irreparable injury and damage, which cannot be\nreasonably or adequately compensated by money damages. Accordingly, Executive acknowledges that the remedies of injunction and specific\nperformance shall be available in the event of such a breach, in addition to money damages or other legal or equitable remedies. Any period of\nrestriction set forth in this Agreement shall be extended for a period of time equal to the duration of any breach or violation hereof.\n7. Notification. Any person employing Executive or evidencing any intention to employ Executive may be notified as to the existence and\nprovisions of this Agreement.\n8. Survival. The provisions of this Agreement shall survive the expiration or termination of the relationship whereby Executive renders\nservices to the Companies.\n9. Modification of Covenants; Enforceability. In the event that any provision of this Agreement is held to be in any respect an\nunreasonable restriction, then the court so holding may modify the terms thereof, including the period of time during which it operates or the\ngeographic area to which it applies, or effect any other change to the extent necessary to render this Agreement enforceable, it being\nacknowledged by the parties that the representations and covenants set forth herein are of the essence to the relationship between the Companies\nand Executive.\n10. No Employment Contract. Nothing in this Agreement shall be construed as giving Executive the right to render services on behalf of\nthe Companies or its affiliates for compensation. Except as otherwise provided in other written agreements, including the Employment\nAgreement, the Companies may terminate their relationship with Executive at will.\n11. Miscellaneous.\n111 Amendments; Waivers. No amendment, modification, or waiver of any provision of this Agreement shall be binding unless in\nwriting and signed by the party against whom the operation of such amendment, modification, or waiver is sought to be enforced. No delay\nin the exercise of any right shall be deemed a waiver thereof, nor shall the waiver of a right or remedy in a particular instance constitute a\nwaiver of such right or remedy generally.\n11.2 Notices. Any notice or document required or permitted to be given under this Agreement may be given by a party or by its legal\ncounsel and shall be deemed to be given (i) one day after the date such notice is deposited with a commercial overnight delivery service with\ndelivery fees paid, to the principal business address of the Companies or the address of Executive on file with the Companies, as applicable;\nor (ii) on the date transmitted by electronic mail to jNewbery@ahpfund.com in the case of the Companies and to deann1890@gmail.com in\nthe case of Executive, in each case with transmission receipt acknowledgment from the recipient by non-automated email response or other\nwritten confirmation of receipt. A party may change its own notice address by giving notice satisfactory under this section.\n11.3 Governing Law. This Agreement shall be governed by the internal laws of Illinois without giving effect to the principles of\nconflicts of laws. Each party hereby consents to the personal jurisdiction of the Federal or Illinois courts located in or most geographically\nconvenient to Cook County, Illinois, and agrees that all disputes arising from this Agreement shall be prosecuted in such courts. Each party\nhereby agrees that any such court shall have in personam jurisdiction over such party and consents to service of process by notice sent by\nregular mail to the address set forth above and/or by any means authorized by Illinois law.\n11.4 Language Construction. The language of this Agreement shall be construed in accordance with its fair meaning and not for or\nagainst any party. The parties acknowledge that each party and its counsel have reviewed and had the opportunity to participate in the\ndrafting of this Agreement and, accordingly, that the rule of construction that would resolve ambiguities in favor of non-drafting parties shall\nnot apply to the interpretation of this Agreement.\n11.5 No Offer. The submission of this Agreement by any party for the review and/or execution by another party does not constitute an\noffer or reservation of rights for the benefit of any party. This Agreement shall become effective, and the parties shall become legally bound,\nonly if and when all parties have executed this Agreement.\n11.6 Signatures. This Agreement may be signed in counterparts, each of which shall be deemed to be a fully-executed original. An\noriginal signature transmitted by email shall be deemed to be original for purposes of this Agreement. This Agreement may be signed\nelectronically, e.g., via DocuSign.\n11.7 Binding Effect. This Agreement shall inure to the benefit of the respective heirs, legal representatives and permitted assigns of\neach party, and shall be binding upon the heirs, legal representatives, successors and assigns of each party.\n11.8 Titles and Captions. All article, section and paragraph titles and captions contained in this Agreement are for convenience only\nand are not deemed a part of the context hereof.\n11.9 Pronouns and Plurals. All pronouns and any variations thereof are deemed to refer to the masculine, feminine, neuter, singular or\nplural as the identity of the person or persons may require.\n11.10 Days. Any period of days mandated under this Agreement shall be determined by reference to calendar days, not business days,\nexcept that any payments, notices, or other performance falling due on a Saturday, Sunday, or federal government holiday shall be\nconsidered timely if paid, given, or performed on the next succeeding business day.\n11.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and\nsupersedes all prior agreements and understandings.\nIN WITNESS WHEREOF, the parties have signed this Agreement effective on the date first written above.\nAFIP SERVICING, LLC\nBy  /s/ Jorge Newbery\nJorge Newbery, CEO\nAFIP CAPITAL MANAGEMENT, LLC\nBy  /s/ Jorge Newbery\nJorge Newbery, Manager\nBy  /s/ DeAnn O’Donovan\nDeAnn O’Donovan\nMary Anne Batara\nTom Sang\nChristine Wujek\nEleni Marudas\nIrene Calzadilla\nStephanie Boban\nSCHEDULE 3.2\nExcluded Persons	EX1A-6 MAT CTRCT 10 filenamelo.hti\nExhibit 1A-6D\nAMERICAN HOMEOWNER PRESERVATION\nINVENTION, NON-DISCLOSURE, AND NON-COMPETITION AGREEMENT\nThis is an Agreement, entered into on January 15, 2018, by and among DeAnn O'Donovan ("Executive"), AHP Servicing,\nLLC\n("Servicing"), and AHP Capital Management, LLC ("Capital Management"), Servicing and Capital Management are sometimes referred to\nas\n"the Companies") in this Agreement.\nBackground\nI.\nExecutive renders services to the Companies pursuant to an Executive Employment Agreement (the "Employment Agreement").\nII.\nThe parties wish to set forth certain restrictions concerning confidential information, inventions, and competition.\nNOW, THEREFORE, intending to be legally bound and acknowledging the receipt of adequate consideration, the parties hereby agree as\nfollows:\n1.\nConfidential Information.\n1.1\nDefined. For purposes of this Agreement, "Confidential Information" means all information not generally known to the public or in\nthe mortgage industry, in spoken, printed, electronic or any other form or medium, relating to the Companies or their businesses.\nConfidential Information includes, but is not limited to, processes, methods, policies, plans, documents, strategies, agreements, transactions,\nnegotiations, know-how, trade secrets, computer software, applications, databases, manuals, records, supplier information, vendor\ninformation, financial information, accounting records, legal information, pricing information, credit information, personnel information,\nsecurity procedures, market studies, sales information, inventions, and customer information. Executive understands that the above list is not\nexhaustive, and that Confidentia Information also includes other information that is marked or otherwise identified as confidential or\nproprietary, or that would otherwise appear to a reasonable person to be confidentia or proprietary in the context and circumstances in which\nthe information is known or used. Executive further understands that Confidential Information includes information developed by her in the\ncourse of her employment that meets the definition of Confidential Information set forth above. Notwithstanding the foregoing, Confidential\nInformation shall not include information that is generally available to and known by the public or in the mortgage industry, provided that\nthe disclosure of such information to the public or the mortgage industry was not the result of direct or indirect action of Executive (or one\nor more person(s) acting on Executive's behalf) in violation of Executive's obligations pursuant to this Agreement.\n1.2\nDisclosure and Use Restrictions. Executive shall (i) treat all Confidential Information as strictly confidential; (ii) not directly or\nindirectly disclose Confidential Information, or allow it to be disclosed, except as required or deemed appropriate by Executive in her\nreasonable\ndiscretion\nin\nthe\nperformance\nof\nExecutive's\nduties\nfor\nthe\nCompanies;\nand\n(iii)\nnot\naccess\nor\nuse\nany\nConfidential\nInformation,\nand not copy any documents, records, files, media, or other resources containing any Confidential Information, or remove any such\ndocuments, records, files, media, or other resources from the premises or control of the Companies, except as required or deemed\nappropriate by Executive in her reasonable discretion in the performance of Executive's duties for the Companies. The preceding sentence\nshall not prohibit Executive from disclosing Confidential Information as required by applicable law or regulation, or pursuant to the valid\norder of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of\ndisclosure required by such law, regulation, or order and, to the extent permitted by applicable law, Executive gives the Companies prompt\nnotice of such requirement.\n1.3\nOwnership\nof\nProperty.\nAll\nfiles,\nletters,\nmemoranda,\nreports,\nrecords,\ndata,\nsketches,\ndrawings,\nand\nall\nother\nwritten,\nphotographic,\nor other tangible material containing Confidential Information, whether created by Executive or others, which shall come into her custody or\npossession, shall be and are the exclusive property of the Companies to be used by Executive only in the performance of her duties for the\nCompanies. All such materials or copies thereof and all tangible property of the Companies in the custody or possession of Executive shall\nbe delivered to the Companies, upon the earlier of (i) a request by the Companies or (ii) termination of Executive's employment by the\nCompanies. After such delivery, Executive shall not retain any such materials or copies thereof or any such tangible property; provided, that\nnotwithstanding the foregoing Executive may retain records related to the terms and conditions of her employment (including but not limited\nto her Employment Agreement and this Agreement) and her ownership of equity interests in the Company.\n1\n1.4\nInformation and Property of Others. The obligations of Executive under this section 1 shall apply to information and materials of\ncustomers and suppliers of the Companies and other third parties who may have disclosed or entrusted the same to the Companies or to\nExecutive.\n2.\nInventions.\n2.1\nDisclosure. Executive will make full and prompt disclosure to the Companies of all inventions, improvements, software, and other\nintellectual property, whether patentable or not, which are created, made, conceived or reduced to practice by Executive or under Executive's\ndirection or jointly with others during the period of her employment which relate to the then current or planned businesses of the Companies,\nwhether or not during normal working hours or on the premises of the Companies, or which are otherwise created, made, conceived or\nreduced to practice by Executive or under Executive's direction or jointly with others during the term of her employment using tools,\nequipment or other assets of the Companies ("Developments").\n2.2\nAssignment. Executive agrees to assign, and upon development by Executive of any element of intellectual property does\nautomatically\nassign,\nto\nthe\nCompanies,\nownership\nof\nall\nUnited\nStates\nand\ninternational\ncopyrights,\npatents,\nand\nother\nintellectual\nproperty\nrights in each Development. Executive shall cooperate with the Companies in obtaining, maintaining, and enforcing all intellectual property\nrights relating to Developments, as the Companies deems necessary or appropriate. This assignment is undertaken in part as a contingency\nagainst the possibility that any such Development, by operation of law, may not be considered a work made for hire by Executive for the\nCompanies. Executive also hereby waives all claims to moral rights in any Developments.\n3.\nNon-Solicitation.\n3.1\nCustomers. For as long as she is performing services on behalf of the Companies and for a period of twelve (12) months thereafter\nExecutive shall not initiate contact or communicate, directly or indirectly, with any entity for which the Companies have provided mortgage\nservicing within the previous twelve (12) months in an effort to induce such person to use a different provider.\n3.2\nEmployees and Independent Contractors. For as long as she is performing services on behalf of the Companies and for a period of\ntwelve (12) months thereafter, Executive shall not hire any employees or individual independent contractors of the Companies or their\naffiliates, or initiate contact or communicate, directly or indirectly, with any such persons in an effort to induce such persons to terminate\ntheir relationship with the Companies or their affiliates; provided, that (i) the foregoing shall not apply with respect to employees and\nindependent contractors who respond to general advertisements regarding hiring of employees or engagement of independent contractors or\nrespond\nto\ninquiries\nby\nindependent\nrecruiting\nfirms\nnot\nresulting\nfrom\ndirection\nto\nsuch\nfirms\nto\ninclude\nemployees\nor\nindependent\ncontractors of the Companies in such solicitation activities, and (ii) in the event Executive's employment with the Companies is terminated\nby Executive for Good Reason or by the Company without Cause (as such terms are defined in the Employment Agreement), the foregoing\nrestrictions shall not apply with respect to the individuals listed on Schedule 3.2.\n2\n4.\nNon-Competition. For as long as she is performing services on behalf of the Companies and for a period of twelve (12) months\nthereafter, Executive shall not participate, directly or indirectly, as an owner, employee, consultant, or otherwise, in any proprietorship,\ncorporation, partnership, or other entity, engaged in purchasing or investing in "non-performing" distressed residential mortgage loans;\nprovided, that the foregoing shall not prohibit or restrict Executive from being an owner, employee, consultant, or otherwise, in any\nproprietorship, corporation, partnership, or other entity, which is engaged in the business of purchasing or investing in "nonperforming"\ndistressed\nresidential\nmortgage\nloans\namong\nmultiple\nbusinesses\nso\nlong\nas\nExecutive\nis\nnot\npersonally\ninvolved\nin\nthe\noperations\nof\nthe\nbusiness with respect to purchasing or investing in "non-performing" distressed residential mortgage loans. Due to the nature of the businesses\nconducted by the Companies, Executive acknowledges that the foregoing restrictions shall have no geographic limitation.\n5.\nAcknowledgment. Executive represents and warrants that (i) her knowledge, skills and abilities are sufficient to permit her to earn a\nsatisfactory livelihood without violating any provision of this Agreement; (ii) the restrictions set forth in this Agreement are necessary to protect\nthe legitimate proprietary interests of the Companies, and (iii) she has received adequate consideration for her agreement to the restrictions set\nforth herein, including but not limited to an equity interest in the Companies or their affiliates.\n6. Remedies. Executive acknowledges that a breach of this Agreement will cause great and irreparable injury and damage, which cannot be\nreasonably or adequately compensated by money damages. Accordingly, Executive acknowledges that the remedies of injunction and specific\nperformance shall be available in the event of such a breach, in addition to money damages or other legal or equitable remedies. Any period of\nrestriction set forth in this Agreement shall be extended for a period of time equal to the duration of any breach or violation hereof.\n7.\nNotification. Any person employing Executive or evidencing any intention to employ Executive may be notified as to the existence and\nprovisions of this Agreement.\n8.\nSurvival. The provisions of this Agreement shall survive the expiration or termination of the relationship whereby Executive renders\nservices to the Companies.\n9.\nModification of Covenants; Enforceability. In the event that any provision of this Agreement is held to be in any respect an\nunreasonable restriction, then the court so holding may modify the terms thereof, including the period of time during which it operates or the\ngeographic area to which it applies, or effect any other change to the extent necessary to render this Agreement enforceable, it being\nacknowledged by the parties that the representations and covenants set forth herein are of the essence to the relationship between the Companies\nand Executive.\n10.\nNo Employment Contract. Nothing in this Agreement shall be construed as giving Executive the right to render services on behalf of\nthe Companies or its affiliates for compensation. Except as otherwise provided in other written agreements, including the Employment\nAgreement, the Companies may terminate their relationship with Executive at will.\n11.\nMiscellaneous.\n11.1\nAmendments; Waivers. No amendment, modification, or waiver of any provision of this Agreement shall be binding unless in\nwriting and signed by the party against whom the operation of such amendment, modification, or waiver is sought to be enforced. No delay\nin the exercise of any right shall be deemed a waiver thereof, nor shall the waiver of a right or remedy in a particular instance constitute\na\nwaiver of such right or remedy generally.\n11.2\nNotices. Any notice or document required or permitted to be given under this Agreement may be given by a party or by its legal\ncounsel\nand\nshall\nbe\ndeemed\nto\nbe\ngiven\n(i)\none\nday\nafter\nthe\ndate\nsuch\nnotice\nis\ndeposited\nwith\na\ncommercial\novernight\ndelivery\nservice\nwith\ndelivery fees paid, to the principal business address of the Companies or the address of Executive on file with the Companies, as applicable;\nor (ii) on the date transmitted by electronic mail to jNewbery@ahpfund.com in the case of the Companies and to deann1890@gmail.com in\nthe case of Executive, in each case with transmission receipt acknowledgment from the recipient by non-automated email response or other\nwritten confirmation of receipt. A party may change its own notice address by giving notice satisfactory under this section.\n3\n11.3\nGoverning Law. This Agreement shall be governed by the internal laws of Illinois without giving effect to the principles of\nconflicts of laws. Each party hereby consents to the personal jurisdiction of the Federal or Illinois courts located in or most geographically\nconvenient to Cook County, Illinois, and agrees that all disputes arising from this Agreement shall be prosecuted in such courts. Each party\nhereby agrees that any such court shall have in personam jurisdiction over such party and consents to service of process by notice sent by\nregular mail to the address set forth above and/or by any means authorized by Illinois law.\n11.4\nLanguage Construction. The language of this Agreement shall be construed in accordance with its fair meaning and not for or\nagainst any party. The parties acknowledge that each party and its counsel have reviewed and had the opportunity to participate in the\ndrafting of this Agreement and, accordingly, that the rule of construction that would resolve ambiguities in favor of non-drafting parties shall\nnot apply to the interpretation of this Agreement.\n11.5 No Offer. The submission of this Agreement by any party for the review and/or execution by another party does not constitute an\noffer or reservation of rights for the benefit of any party. This Agreement shall become effective, and the parties shall become legally bound,\nonly if and when all parties have executed this Agreement.\n11.6\nSignatures. This Agreement may be signed in counterparts, each of which shall be deemed to be a fully-executed original. An\noriginal signature transmitted by email shall be deemed to be original for purposes of this Agreement. This Agreement may be signed\nelectronically, e.g., via DocuSign.\n11.7\nBinding Effect. This Agreement shall inure to the benefit of the respective heirs, legal representatives and permitted assigns\nof\neach party, and shall be binding upon the heirs, legal representatives, successors and assigns of each party.\n11.8\nTitles and Captions. All article, section and paragraph titles and captions contained in this Agreement are for convenience only\nand are not deemed a part of the context hereof.\n11.9\nPronouns and Plurals. All pronouns and any variations thereof are deemed to refer to the masculine, feminine, neuter, singular or\nplural as the identity of the person or persons may require.\n11.10\nDays. Any period of days mandated under this Agreement shall be determined by reference to calendar days, not business days,\nexcept that any payments, notices, or other performance falling due on a Saturday, Sunday, or federal government holiday shall be\nconsidered timely if paid, given, or performed on the next succeeding business day.\n11.11\nEntire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and\nsupersedes all prior agreements and understandings.\n4\nIN WITNESS WHEREOF, the parties have signed this Agreement effective on the date first written above.\nAFIP SERVICING, LLC\nBy\n/s/ Jorge Newbery\nJorge Newbery, CEO\nAFIP CAPITAL MANAGEMENT, LLC\nBy\n/s/ Jorge Newbery\nJorge Newbery, Manager\nBy\n/s/ DeAnn O'Donovan\nDeAnn O'Donovan\n5\nSCHEDULE 3.2\nExcluded Persons\nMary Anne Batara\nTom Sang\nChristine Wujek\nEleni Marudas\nIrene Calzadilla\nStephanie Boban\n6	EX1A-6 MAT CTRCT 10 filename10.htm\nExhibit 1A-6D\nAMERICAN HOMEOWNER PRESERVATION\nINVENTION, NON-DISCLOSURE, AND NON-COMPETITION AGREEMENT\nThis is an Agreement, entered into on January 15, 2018, by and among DeAnn O'Donovan ("Executive"), AHP Servicing, LLC\n("Servicing"), and AHP Capital Management, LLC ("Capital Management"), Servicing and Capital Management are sometimes referred to as\n"the Companies") in this Agreement.\nBackground\nI.\nExecutive renders services to the Companies pursuant to an Executive Employment Agreement (the "Employment Agreement").\nII.\nThe parties wish to set forth certain restrictions concerning confidential information, inventions, and competition.\nNOW, THEREFORE, intending to be legally bound and acknowledging the receipt of adequate consideration, the parties hereby agree as\nfollows:\n1. Confidential Information.\n1.1 Defined. For purposes of this Agreement, "Confidential Information" means all information not generally known to the public or in\nthe mortgage industry, in spoken, printed, electronic or any other form or medium, relating to the Companies or their businesses.\nConfidential Information includes, but is not limited to, processes, methods, policies, plans, documents, strategies, agreements, transactions,\nnegotiations, know-how, trade secrets, computer software, applications, databases, manuals, records, supplier information, vendor\ninformation, financial information, accounting records, legal information, pricing information, credit information, personnel information,\nsecurity procedures, market studies, sales information, inventions, and customer information. Executive understands that the above list is not\nexhaustive, and that Confidential Information also includes other information that is marked or otherwise identified as confidential or\nproprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which\nthe information is known or used. Executive further understands that Confidential Information includes information developed by her in the\ncourse of her employment that meets the definition of Confidential Information set forth above. Notwithstanding the foregoing, Confidential\nInformation shall not include information that is generally available to and known by the public or in the mortgage industry, provided that\nthe disclosure of such information to the public or the mortgage industry was not the result of direct or indirect action of Executive (or one\nor more person(s) acting on Executive's behalf) in violation of Executive's obligations pursuant to this Agreement.\n1.2\nDisclosure and Use Restrictions. Executive shall (i) treat all Confidential Information as strictly confidential; (ii) not directly or\nindirectly disclose Confidential Information, or allow it to be disclosed, except as required or deemed appropriate by Executive in her\nreasonable discretion in the performance of Executive's duties for the Companies; and (iii) not access or use any Confidential Information,\nand not copy any documents, records, files, media, or other resources containing any Confidential Information, or remove any such\ndocuments, records, files, media, or other resources from the premises or control of the Companies, except as required or deemed\nappropriate by Executive in her reasonable discretion in the performance of Executive's duties for the Companies. The preceding sentence\nshall not prohibit Executive from disclosing Confidential Information as required by applicable law or regulation, or pursuant to the valid\norder of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of\ndisclosure required by such law, regulation, or order and, to the extent permitted by applicable law, Executive gives the Companies prompt\nnotice of such requirement.\n1.3 Ownership of Property. All files, letters, memoranda, reports, records, data, sketches, drawings, and all other written, photographic,\nor other tangible material containing Confidential Information, whether created by Executive or others, which shall come into her custody or\npossession, shall be and are the exclusive property of the Companies to be used by Executive only in the performance of her duties for the\nCompanies. All such materials or copies thereof and all tangible property of the Companies in the custody or possession of Executive shall\nbe delivered to the Companies, upon the earlier of (i) a request by the Companies or (ii) termination of Executive's employment by the\nCompanies. After such delivery, Executive shall not retain any such materials or copies thereof or any such tangible property; provided, that\nnotwithstanding the foregoing Executive may retain records related to the terms and conditions of her employment (including but not limited\nto her Employment Agreement and this Agreement) and her ownership of equity interests in the Company.\n1\n1.4 Information and Property of Others. The obligations of Executive under this section 1 shall apply to information and materials of\ncustomers and suppliers of the Companies and other third parties who may have disclosed or entrusted the same to the Companies or to\nExecutive.\n2.\nInventions.\n2.1\nDisclosure. Executive will make full and prompt disclosure to the Companies of all inventions, improvements, software, and other\nintellectual property, whether patentable or not, which are created, made, conceived or reduced to practice by Executive or under Executive's\ndirection or jointly with others during the period of her employment which relate to the then current or planned businesses of the Companies,\nwhether or not during normal working hours or on the premises of the Companies, or which are otherwise created, made, conceived or\nreduced to practice by Executive or under Executive's direction or jointly with others during the term of her employment using tools,\nequipment or other assets of the Companies ("Developments").\n2.2\nAssignment. Executive agrees to assign, and upon development by Executive of any element of intellectual property does\nautomatically assign, to the Companies, ownership of all United States and international copyrights, patents, and other intellectual property\nrights in each Development. Executive shall cooperate with the Companies in obtaining, maintaining, and enforcing all intellectual property\nrights relating to Developments, as the Companies deems necessary or appropriate. This assignment is undertaken in part as a contingency\nagainst the possibility that any such Development, by operation of law, may not be considered a work made for hire by Executive for the\nCompanies. Executive also hereby waives all claims to moral rights in any Developments.\n3.\nNon-Solicitation.\n3.1 Customers. For as long as she is performing services on behalf of the Companies and for a period of twelve (12) months thereafter,\nExecutive shall not initiate contact or communicate, directly or indirectly, with any entity for which the Companies have provided mortgage\nservicing within the previous twelve (12) months in an effort to induce such person to use a different provider.\n3.2 Employees and Independent Contractors. For as long as she is performing services on behalf of the Companies and for a period of\ntwelve (12) months thereafter, Executive shall not hire any employees or individual independent contractors of the Companies or their\naffiliates, or initiate contact or communicate, directly or indirectly, with any such persons in an effort to induce such persons to terminate\ntheir relationship with the Companies or their affiliates; provided, that (i) the foregoing shall not apply with respect to employees and\nindependent contractors who respond to general advertisements regarding hiring of employees or engagement of independent contractors or\nrespond to inquiries by independent recruiting firms not resulting from direction to such firms to include employees or independent\ncontractors of the Companies in such solicitation activities, and (ii) in the event Executive's employment with the Companies is terminated\nby Executive for Good Reason or by the Company without Cause (as such terms are defined in the Employment Agreement), the foregoing\nrestrictions shall not apply with respect to the individuals listed on Schedule 3.2 .\n2\n4.\nNon-Competition. For as long as she is performing services on behalf of the Companies and for a period of twelve (12) months\nthereafter, Executive shall not participate, directly or indirectly, as an owner, employee, consultant, or otherwise, in any proprietorship,\ncorporation, partnership, or other entity, engaged in purchasing or investing in "non-performing" distressed residential mortgage loans;\nprovided, that the foregoing shall not prohibit or restrict Executive from being an owner, employee, consultant, or otherwise, in any\nproprietorship, corporation, partnership, or other entity, which is engaged in the business of purchasing or investing in "nonperforming"\ndistressed residential mortgage loans among multiple businesses so long as Executive is not personally involved in the operations of the\nbusiness with respect to purchasing or investing in "non-performing" distressed residential mortgage loans. Due to the nature of the businesses\nconducted by the Companies, Executive acknowledges that the foregoing restrictions shall have no geographic limitation.\n5.\nAcknowledgment. Executive represents and warrants that (i) her knowledge, skills and abilities are sufficient to permit her to earn a\nsatisfactory livelihood without violating any provision of this Agreement; (ii) the restrictions set forth in this Agreement are necessary to protect\nthe legitimate proprietary interests of the Companies, and (iii) she has received adequate consideration for her agreement to the restrictions set\nforth herein, including but not limited to an equity interest in the Companies or their affiliates.\n6.\nRemedies. Executive acknowledges that a breach of this Agreement will cause great and irreparable injury and damage, which cannot be\nreasonably or adequately compensated by money damages. Accordingly, Executive acknowledges that the remedies of injunction and specific\nperformance shall be available in the event of such a breach, in addition to money damages or other legal or equitable remedies. Any period of\nrestriction set forth in this Agreement shall be extended for a period of time equal to the duration of any breach or violation hereof.\n7.\nNotification. Any person employing Executive or evidencing any intention to employ Executive may be notified as to the existence and\nprovisions of this Agreement.\n8.\nSurvival. The provisions of this Agreement shall survive the expiration or termination of the relationship whereby Executive renders\nservices to the Companies.\n9.\nModification of Covenants; Enforceability. In the event that any provision of this Agreement is held to be in any respect an\nunreasonable restriction, then the court so holding may modify the terms thereof, including the period of time during which it operates or the\ngeographic area to which it applies, or effect any other change to the extent necessary to render this Agreement enforceable, it being\nacknowledged by the parties that the representations and covenants set forth herein are of the essence to the relationship between the Companies\nand Executive.\n10.\nNo Employment Contract. Nothing in this Agreement shall be construed as giving Executive the right to render services on behalf of\nthe Companies or its affiliates for compensation. Except as otherwise provided in other written agreements, including the Employment\nAgreement, the Companies may terminate their relationship with Executive at will.\n11.\nMiscellaneous.\n11.1\nAmendments; Waivers. No amendment, modification, or waiver of any provision of this Agreement shall be binding unless in\nwriting and signed by the party against whom the operation of such amendment, modification, or waiver is sought to be enforced. No delay\nin the exercise of any right shall be deemed a waiver thereof, nor shall the waiver of a right or remedy in a particular instance constitute a\nwaiver of such right or remedy generally.\n11.2\nNotices. Any notice or document required or permitted to be given under this Agreement may be given by a party or by its legal\ncounsel and shall be deemed to be given (i) one day after the date such notice is deposited with a commercial overnight delivery service with\ndelivery fees paid, to the principal business address of the Companies or the address of Executive on file with the Companies, as applicable;\nor (ii) on the date transmitted by electronic mail to jNewbery@ahpfund.com in the case of the Companies and to deann1890@gmail.com in\nthe case of Executive, in each case with transmission receipt acknowledgment from the recipient by non-automated email response or other\nwritten confirmation of receipt. A party may change its own notice address by giving notice satisfactory under this section.\n3\n11.3\nGoverning Law. This Agreement shall be governed by the internal laws of Illinois without giving effect to the principles of\nconflicts of laws. Each party hereby consents to the personal jurisdiction of the Federal or Illinois courts located in or most geographically\nconvenient to Cook County, Illinois, and agrees that all disputes arising from this Agreement shall be prosecuted in such courts. Each party\nhereby agrees that any such court shall have in personam jurisdiction over such party and consents to service of process by notice sent by\nregular mail to the address set forth above and/or by any means authorized by Illinois law.\n11.4\nLanguage Construction. The language of this Agreement shall be construed in accordance with its fair meaning and not for or\nagainst any party. The parties acknowledge that each party and its counsel have reviewed and had the opportunity to participate in the\ndrafting of this Agreement and, accordingly, that the rule of construction that would resolve ambiguities in favor of non-drafting parties shall\nnot apply to the interpretation of this Agreement.\n11.5\nNo Offer. The submission of this Agreement by any party for the review and/or execution by another party does not constitute an\noffer or reservation of rights for the benefit of any party. This Agreement shall become effective, and the parties shall become legally bound,\nonly if and when all parties have executed this Agreement.\n11.6\nSignatures. This Agreement may be signed in counterparts, each of which shall be deemed to be a fully-executed original. An\noriginal signature transmitted by email shall be deemed to be original for purposes of this Agreement. This Agreement may be signed\nelectronically, e.g., via DocuSign.\n11.7\nBinding Effect. This Agreement shall inure to the benefit of the respective heirs, legal representatives and permitted assigns of\neach party, and shall be binding upon the heirs, legal representatives, successors and assigns of each party.\n11.8\nTitles and Captions. All article, section and paragraph titles and captions contained in this Agreement are for convenience only\nand are not deemed a part of the context hereof.\n11.9 Pronouns and Plurals. All pronouns and any variations thereof are deemed to refer to the masculine, feminine, neuter, singular or\nplural as the identity of the person or persons may require.\n11.10\nDays. Any period of days mandated under this Agreement shall be determined by reference to calendar days, not business days,\nexcept that any payments, notices, or other performance falling due on a Saturday, Sunday, or federal government holiday shall be\nconsidered timely if paid, given, or performed on the next succeeding business day.\n11.11\nEntire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and\nsupersedes all prior agreements and understandings.\n4\nIN WITNESS WHEREOF, the parties have signed this Agreement effective on the date first written above.\nAFIP SERVICING, LLC\nBy /s/ Jorge Newbery\nJorge Newbery, CEO\nAFIP CAPITAL MANAGEMENT, LLC\nBy /s/ Jorge Newbery\nJorge Newbery, Manager\nBy /s/ DeAnn O’Donovan\nDeAnn O’Donovan\n5\nSCHEDULE 3.2\nExcluded Persons\nMary Anne Batara\nTom Sang\nChristine Wujek\nEleni Marudas\nIrene Calzadilla\nStephanie Boban\n6
+cf7220567752eec2fddcd50c7ca827cb.pdf	effective_date jurisdiction party term	EX-10.5 13 dex105.htm FORM OF AT-WILL EMPLOYEMENT, CONFIDENTIAL INFORMATION, INVENTION\nASSIGNMENT...\nEXHIBIT 10.5\nACOLOGIX, INC.\nAT-WILL EMPLOYMENT, CONFIDENTIAL INFORMATION,\nINVENTION ASSIGNMENT,\nAND ARBITRATION AGREEMENT\nAs a condition of my employment with Acologix, Inc., its subsidiaries, affiliates, successors or assigns (together the “Company”), and in\nconsideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by Company, I agree to the\nfollowing:\n1. At-Will Employment. I understand and acknowledge that my employment with the Company is for an unspecified duration and\nconstitutes “at-will” employment. I also understand that any representation to the contrary is unauthorized and not valid unless obtained in writing\nand signed by the President of the Company. I acknowledge that this employment relationship may be terminated at any time, with or without good\ncause or for any or no cause, at the option either of the Company or myself, with or without notice.\n2. Confidential Information.\n(a) Company Information. I agree at all times during the term of my employment and thereafter, to hold in strictest confidence, and\nnot to use, except for the benefit of the Company, or to disclose to any person, firm or corporation without written authorization of the Board\nof Directors of the Company, any Confidential Information of the Company, except under a non-disclosure agreement duly authorized and\nexecuted by the Company. I understand that “Confidential Information” means any non-public information that relates to the actual or\nanticipated business or research and development of the Company, technical data, trade secrets or know-how, including, but not limited to,\nresearch, product plans or other information regarding Company’s products or services and markets therefor, customer lists and customers\n(including, but not limited to, customers of the Company on whom I called or with whom I became acquainted during the term of my\nemployment), markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware\nconfiguration information, marketing, finances or other business information disclosed to me by the Company either directly or indirectly, in\nwriting, orally or by drawings or observation of parts or equipment. I further understand that Confidential Information does not include any of\nthe foregoing items which have become publicly known and made generally available through no wrongful act of mine or of others who were\nunder confidentiality obligations as to the item or items involved or improvements or new versions thereof.\n(b) Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose any\nproprietary information or trade secrets of any former or concurrent employer or other person or entity and that I will not bring onto the\npremises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless\nconsented to in writing by such employer, person or entity.\n(c) Third Party Information. I recognize that the Company has received and in the future will receive from third parties their\nconfidential or proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it\nonly for certain limited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose\nit to any person, firm or corporation or to use it except as necessary in carrying out my work for the Company consistent with the Company’s\nagreement with such third party.\n3. Inventions.\n(a) Inventions Retained and Licensed. I have attached hereto, as Exhibit A, a list describing all inventions, original works of\nauthorship, developments, improvements, and trade secrets which were made by me prior to my employment with the Company (collectively\nreferred to as “Prior Inventions”), which belong to me, which relate to the Company’s proposed business, products or research and\ndevelopment, and which are not\nassigned to the Company hereunder; or, if no such list is attached, I represent that there are no such Prior Inventions. If in the course of my\nemployment with the Company, I incorporate into a Company product, process or service a Prior Invention owned by me or in which I have an\ninterest, I hereby grant to the Company a nonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, worldwide license to make, have\nmade, modify, use and sell such Prior Invention as part of or in connection with such product, process or service, and to practice any method\nrelated thereto.\n(b) Assignment of Inventions. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole\nright and benefit of the Company, and hereby assign to the Company, or its designee, all my right, title, and interest in and to any and all\ninventions, original works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets,\nwhether or not patentable or registrable under copyright or similar laws, which I may solely or jointly conceive or develop or reduce to\npractice, or cause to be conceived or developed or reduced to practice, during the period of time I am in the employ of the Company\n(collectively referred to as “Inventions”), except as provided in Section 3(f) below. I further acknowledge that all original works of authorship\nwhich are made by me (solely or jointly with others) within the scope of and during the period of my employment with the Company and\nwhich are protectible by copyright are “works made for hire,” as that term is defined in the United States Copyright Act. I understand and\nagree that the decision whether or not to commercialize or market any invention developed by me solely or jointly with others is within the\nCompany’s sole discretion and for the Company’s sole benefit and that no royalty will be due to me as a result of the Company’s efforts to\ncommercialize or market any such invention.\n(c) Inventions Assigned to the United States. I agree to assign to the United States government all my right, title, and interest in and\nto any and all Inventions whenever such full title is required to be in the United States by a contract between the Company and the United\nStates or any of its agencies.\n(d) Maintenance of Records. I agree to keep and maintain adequate and current written records of all Inventions made by me (solely\nor jointly with others) during the term of my employment with the Company. The records will be in the form of notes, sketches, drawings, and\nany other format that may be specified by the Company. The records will be available to and remain the sole property of the Company at all\ntimes.\n(e) Patent and Copyright Registrations. I agree to assist the Company, or its designee, at the Company’s expense, in every proper\nway to secure the Company’s rights in the Inventions and any copyrights, patents, mask work rights or other intellectual property rights\nrelating thereto in any and all countries, including the disclosure to the Company of all pertinent information and data with respect thereto, the\nexecution of all applications, specifications, oaths, assignments and all other instruments which the Company shall deem necessary in order to\napply for and obtain such rights and in order to assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive\nrights, title and interest in and to such Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating\nthereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers\nshall continue after the termination of this Agreement. If the Company is unable because of my mental or physical incapacity or for any other\nreason to secure my signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations\ncovering Inventions or original works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the\nCompany and its duly authorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file\nany such applications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright\nregistrations thereon with the same legal force and effect as if executed by me.\n(f) Exception to Assignments. I understand that the provisions of this Agreement requiring assignment of Inventions to the Company\ndo not apply to any invention which qualifies fully under the provisions of California Labor Code Section 2870 (attached hereto as Exhibit B).\nI will advise the Company promptly in writing of any inventions that I believe meet the criteria in California Labor Code Section 2870 and are\nnot otherwise disclosed on Exhibit A.\n2\n4. Conflicting Employment. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during\nthe term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.\n5. Returning Company Documents. I agree that, at the time of leaving the employ of the Company, I will deliver to the Company (and will\nnot keep in my possession, recreate or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence,\nspecifications, drawings blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items\ndeveloped by me pursuant to my employment with the Company or otherwise belonging to the Company, its successors or assigns, including,\nwithout limitation, those records maintained pursuant to paragraph 3(d). In the event of the termination of my employment, I agree to sign and\ndeliver the “Termination Certification” attached hereto as Exhibit C.\n6. Notification of New Employer. In the event that I leave the employ of the Company, I hereby grant consent to notification by the\nCompany to my new employer about my rights and obligations under this Agreement.\n7. Solicitation of Employees. I agree that for a period of twelve (12) months immediately following the termination of my relationship with\nthe Company for any reason, whether with or without cause, I shall not either directly or indirectly solicit, induce, recruit or encourage any of the\nCompany’s employees to leave their employment, or take away such employees, or attempt to solicit, induce, recruit, encourage or take away\nemployees of the Company, either for myself or for any other person or entity.\n8. Conflict of Interest Guidelines. I agree to diligently adhere to the Conflict of Interest Guidelines attached as Exhibit D hereto.\n9. Representations. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Agreement. I\nrepresent that my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information\nacquired by me in confidence or in trust prior to my employment by the Company. I hereby represent and warrant that I have not entered into, and I\nagree I will not enter into, any oral or written agreement in conflict herewith.\n10. Arbitration and Equitable Relief.\n(a) Arbitration. In consideration of my employment with the Company, its promise to arbitrate all employment-related disputes and\nmy receipt of the compensation, pay raises and other benefits paid to me by the Company, at present and in the future, I agree that any and all\ncontroversies, claims, or disputes with anyone (including the Company and any employee, officer, director, shareholder or benefit plan of the\nCompany in their capacity as such or otherwise) arising out of, relating to, or resulting from my employment with the Company or the\ntermination of my employment with the Company, including any breach of this Agreement, shall be subject to binding arbitration under the\narbitration rules set forth in California Code of Civil Procedure Section 1280 through 1294.2, including Section 1283.05 (the “Rules”) and\npursuant to California law. Disputes which I agree to arbitrate, and thereby agree to waive any right to a trial by jury, include any statutory\nclaims under state or federal law, including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, the Americans With\nDisabilities Act of 1990, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the Worker\nAdjustment and Retraining Notification Act, the California Fair Employment and Housing Act, the Family and Medical Leave Act, the\nCalifornia Family Rights Act, the California Labor Code, claims of harassment, discrimination or wrongful termination and any statutory\nclaims. I further understand that this Agreement to arbitrate also applies to any disputes that the Company may have with me.\n(b) Procedure. I agree that any arbitration will be administered by the American Arbitration Association (“AAA”) and that a neutral\narbitrator will be selected in a manner consistent with its National Rules for the Resolution of Employment Disputes. I agree that the arbitrator\nshall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or\nadjudication and motions\n3\nto dismiss and demurrers, prior to any arbitration hearing. I agree that the arbitrator shall issue a written decision on the merits. I also agree that\nthe arbitrator shall have the power to award any remedies, including attorneys’ fees and costs, available under applicable law. I understand that\nthe Company will pay for any administrative or hearing fees charged by the arbitrator or AAA except that I shall pay the first $125.00 of any\nfiling fees associated with any arbitration I initiate. I agree that the arbitrator shall administer and conduct any arbitration in a manner\nconsistent with the Rules and that to the extent that the AAA’s National Rules for the Resolution of Employment Disputes conflict with the\nRules, the Rules shall take precedence.\n(c) Remedy. Except as provided by the Rules and this Agreement, arbitration shall be the sole, exclusive and final remedy for any\ndispute between me and the Company. Accordingly, except as provided for by the Rules and this Agreement, neither I nor the Company will\nbe permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding, the arbitrator will not have the authority to\ndisregard or refuse to enforce any lawful company policy, and the arbitrator shall not order or require the Company to adopt a policy not\notherwise required by law which the Company has not adopted.\n(d) Availability of injunctive relief. Both parties agree that any party may petition a court for injunctive relief as permitted by the\nRules, including, but not limited to, where either party alleges or claims a violation of the At-Will Employment, Confidential Information,\nInvention Assignment, and Arbitration Agreement between me and the Company or any other agreement regarding trade secrets, confidential\ninformation, nonsolicitation or Labor Code §2870. Both parties understand that any breach or threatened breach of such an agreement will\ncause irreparable injury and that money damages will not provide an adequate remedy therefor and both parties hereby consent to the issuance\nof an injunction. In the event either party seeks injunctive relief, the prevailing party shall be entitled to recover reasonable costs and attorneys’\nfees.\n(e) Administrative relief. I understand that this Agreement does not prohibit me from pursuing an administrative claim with a local,\nstate or federal administrative body such as the Department of Fair Employment and Housing, the Equal Employment Opportunity\nCommission or the Workers’ Compensation Board. This Agreement does, however, preclude me from pursuing court action regarding any\nsuch claim.\n(f) Voluntary nature of agreement. I acknowledge and agree that I am executing this Agreement voluntarily and without any duress\nor undue influence by the Company or anyone else. I further acknowledge and agree that I have carefully read this Agreement and that I have\nasked any questions needed for me to understand the terms, consequences and binding effect of this Agreement and fully understand it,\nincluding that I AM WAIVING MY RIGHT TO A JURY TRIAL. Finally, I agree that I have been provided an opportunity to seek the advice\nof an attorney of my choice before signing this Agreement.\n11. General Provisions.\n(a) Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the State of California. I\nhereby expressly consent to the personal jurisdiction of the state and federal courts located in California for any lawsuit filed there against me\nby the Company arising from or relating to this Agreement.\n(b) Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and me concerning\nthe subject matter herein and supersedes all prior discussions or representations between us including, but not limited to, any representations\nmade during my interview(s) or relocation negotiations, whether written or oral. No modification of or amendment to this Agreement, nor any\nwaiver of rights under this Agreement, will be effective unless in writing signed by the President of the Company and me. Any subsequent\nchange or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.\n(c) Severability. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will\ncontinue in full force and effect.\n4\n(d) Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives\nand will be for the benefit of the Company, its successors, and its assigns.\nDate:\nSignature\nName of Employee (typed or printed)\nWitness:\nSignature\nName (typed or printed)\n5\nExhibit A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nTitle\nDate\nIdentifying Number or Brief Description\nNo inventions or improvements\nAdditional Sheets Attached\nSignature of Employee:\nPrint Name of Employee:\nDate:\nExhibit B\nCALIFORNIA LABOR CODE SECTION 2870\nINVENTION ON OWN TIME – EXEMPTION FROM AGREEMENT\n(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably\nanticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from\nbeing required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”\nExhibit C\nACOLOGIX, INC.\nTERMINATION CERTIFICATION\nThis is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists,\ncorrespondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any\naforementioned items belonging to Acologix, Inc., its subsidiaries, affiliates, successors or assigns (together, the “Company”).\nI further certify that I have complied with all the terms of the Company’s At-Will Employment, Confidential Information, Invention\nAssignment, and Arbitration Agreement signed by me, including the reporting of any inventions and original works of authorship (as defined\ntherein), conceived or made by me (solely or jointly with others) covered by that agreement.\nI further agree that, in compliance with the Employment, Confidential Information, Invention Assignment, and Arbitration Agreement, I will\npreserve as confidential all trade secrets, confidential knowledge, data or other proprietary information relating to products, processes, know-how,\ndesigns, formulas, developmental or experimental work, computer programs, data bases, other original works of authorship, customer lists, business\nplans, financial information or other subject matter pertaining to any business of the Company or any of its employees, clients, consultants or\nlicensees.\nI further agree that for twelve (12) months from this date, I will not hire any employees of the Company and I will not solicit, induce, recruit or\nencourage any of the Company’s employees to leave their employment.\nDate:\n(Employee’s Signature)\n(Type/Print Employee’s Name)\nExhibit D\nACOLOGIX, INC.\nCONFLICT OF INTEREST GUIDELINES\nIt is the policy of Acologix, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere to the highest\nprinciples of business ethics. Accordingly, all officers, employees and independent contractors must avoid activities which are in conflict, or give the\nappearance of being in conflict, with these principles and with the interests of the Company. The following are potentially compromising situations\nwhich must be avoided. Any exceptions must be reported to the President and written approval for continuation must be obtained.\n1. Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is a violation\nof this policy whether or not for personal gain and whether or not harm to the Company is intended. (The At-Will Employment, Confidential\nInformation, Invention Assignment, and Arbitration Agreement elaborates on this principle and is a binding agreement.)\n2. Accepting or offering substantial gifts, excessive entertainment, favors or payments which may be deemed to constitute undue influence or\notherwise be improper or embarrassing to the Company.\n3. Participating in civic or professional organizations that might involve divulging confidential information of the Company.\n4. Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family relationship or\nis or appears to be a personal or social involvement.\n5. Initiating or approving any form of personal or social harassment of employees.\n6. Investing or holding outside directorship in suppliers, customers, or competing companies, including financial speculations, where such\ninvestment or directorship might influence in any manner a decision or course of action of the Company.\n7. Borrowing from or lending to employees, customers or suppliers.\n8. Acquiring real estate of interest to the Company.\n9. Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent employer or other\nperson or entity with whom obligations of confidentiality exist.\n10. Unlawfully discussing prices, costs, customers, sales or markets with competing companies or their employees.\n11. Making any unlawful agreement with distributors with respect to prices.\n12. Improperly using or authorizing the use of any inventions which are the subject of patent claims of any other person or entity.\n13. Engaging in any conduct which is not in the best interest of the Company.\nEach officer, employee and independent contractor must take every necessary action to ensure compliance with these guidelines and to bring\nproblem areas to the attention of higher management for review. Violations of this conflict of interest policy may result in discharge without\nwarning.	EX-10.5 13 dex105.htm FORM OF AT-WILL EMPLOYEMENT, CONFIDENTIAL INFORMATION, INVENTION\nASSIGNMENT...\nEXHIBIT 10.5\nACOLOGIX, INC.\nAT-WILL EMPLOYMENT, CONFIDENTIAL INFORMATION,\nINVENTION ASSIGNMENT,\nAND ARBITRATION AGREEMENT\nAs a condition of my employment with Acologix, Inc., its subsidiaries, affiliates, successors or assigns (together the “Company”), and in\nconsideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by Company, I agree to the\nfollowing:\n1. At-Will Employment. I understand and acknowledge that my employment with the Company is for an unspecified duration and\nconstitutes “at-will” employment. I also understand that any representation to the contrary is unauthorized and not valid unless obtained in writing\nand signed by the President of the Company. I acknowledge that this employment relationship may be terminated at any time, with or without good\ncause or for any or no cause, at the option either of the Company or myself, with or without notice.\n2. Confidential Information.\n(@) Company Information. I agree at all times during the term of my employment and thereafter, to hold in strictest confidence, and\nnot to use, except for the benefit of the Company, or to disclose to any person, firm or corporation without written authorization of the Board\nof Directors of the Company, any Confidential Information of the Company, except under a non-disclosure agreement duly authorized and\nexecuted by the Company. I understand that “Confidential Information” means any non-public information that relates to the actual or\nanticipated business or research and development of the Company, technical data, trade secrets or know-how, including, but not limited to,\nresearch, product plans or other information regarding Company’s products or services and markets therefor, customer lists and customers\n(including, but not limited to, customers of the Company on whom I called or with whom I became acquainted during the term of my\nemployment), markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware\nconfiguration information, marketing, finances or other business information disclosed to me by the Company either directly or indirectly, in\nwriting, orally or by drawings or observation of parts or equipment. I further understand that Confidential Information does not include any of\nthe foregoing items which have become publicly known and made generally available through no wrongful act of mine or of others who were\nunder confidentiality obligations as to the item or items involved or improvements or new versions thereof.\n(b) Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose any\nproprietary information or trade secrets of any former or concurrent employer or other person or entity and that I will not bring onto the\npremises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless\nconsented to in writing by such employer, person or entity.\n(c) Third Party Information. I recognize that the Company has received and in the future will receive from third parties their\nconfidential or proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it\nonly for certain limited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose\nit to any person, firm or corporation or to use it except as necessary in carrying out my work for the Company consistent with the Company’s\nagreement with such third party.\n3. Inventions.\n(a) Inventions Retained and Licensed. I have attached hereto, as Exhibit A, a list describing all inventions, original works of\nauthorship, developments, improvements, and trade secrets which were made by me prior to my employment with the Company (collectively\nreferred to as “Prior Inventions”), which belong to me, which relate to the Company’s proposed business, products or research and\ndevelopment, and which are not\nassigned to the Company hereunder; or, if no such list is attached, I represent that there are no such Prior Inventions. If in the course of my\nemployment with the Company, I incorporate into a Company product, process or service a Prior Invention owned by me or in which I have an\ninterest, I hereby grant to the Company a nonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, worldwide license to make, have\nmade, modify, use and sell such Prior Invention as part of or in connection with such product, process or service, and to practice any method\nrelated thereto.\n(b) Assignment of Inventions. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole\nright and benefit of the Company, and hereby assign to the Company, or its designee, all my right, title, and interest in and to any and all\ninventions, original works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets,\nwhether or not patentable or registrable under copyright or similar laws, which I may solely or jointly conceive or develop or reduce to\npractice, or cause to be conceived or developed or reduced to practice, during the period of time I am in the employ of the Company\n(collectively referred to as “Inventions”), except as provided in Section 3(f) below. I further acknowledge that all original works of authorship\nwhich are made by me (solely or jointly with others) within the scope of and during the period of my employment with the Company and\nwhich are protectible by copyright are “works made for hire,” as that term is defined in the United States Copyright Act. I understand and\nagree that the decision whether or not to commercialize or market any invention developed by me solely or jointly with others is within the\nCompany’s sole discretion and for the Company’s sole benefit and that no royalty will be due to me as a result of the Company’s efforts to\ncommercialize or market any such invention.\n(c) Inventions Assigned to the United States. I agree to assign to the United States government all my right, title, and interest in and\nto any and all Inventions whenever such full title is required to be in the United States by a contract between the Company and the United\nStates or any of its agencies.\n(d) Maintenance of Records. I agree to keep and maintain adequate and current written records of all Inventions made by me (solely\nor jointly with others) during the term of my employment with the Company. The records will be in the form of notes, sketches, drawings, and\nany other format that may be specified by the Company. The records will be available to and remain the sole property of the Company at all\ntimes.\n(e) Patent and Copyright Registrations. I agree to assist the Company, or its designee, at the Company’s expense, in every proper\nway to secure the Company’s rights in the Inventions and any copyrights, patents, mask work rights or other intellectual property rights\nrelating thereto in any and all countries, including the disclosure to the Company of all pertinent information and data with respect thereto, the\nexecution of all applications, specifications, oaths, assignments and all other instruments which the Company shall deem necessary in order to\napply for and obtain such rights and in order to assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive\nrights, title and interest in and to such Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating\nthereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers\nshall continue after the termination of this Agreement. If the Company is unable because of my mental or physical incapacity or for any other\nreason to secure my signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations\ncovering Inventions or original works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the\nCompany and its duly authorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file\nany such applications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright\nregistrations thereon with the same legal force and effect as if executed by me.\n(f) Exception to Assignments. I understand that the provisions of this Agreement requiring assignment of Inventions to the Company\ndo not apply to any invention which qualifies fully under the provisions of California Labor Code Section 2870 (attached hereto as Exhibit B).\nI will advise the Company promptly in writing of any inventions that I believe meet the criteria in California Labor Code Section 2870 and are\nnot otherwise disclosed on Exhibit A.\n4. Conflicting Employment. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during\nthe term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.\n5. Returning Company Documents. I agree that, at the time of leaving the employ of the Company, I will deliver to the Company (and will\nnot keep in my possession, recreate or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence,\nspecifications, drawings blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items\ndeveloped by me pursuant to my employment with the Company or otherwise belonging to the Company, its successors or assigns, including,\nwithout limitation, those records maintained pursuant to paragraph 3(d). In the event of the termination of my employment, I agree to sign and\ndeliver the “Termination Certification” attached hereto as Exhibit C.\n6. Notification of New Employer. In the event that I leave the employ of the Company, I hereby grant consent to notification by the\nCompany to my new employer about my rights and obligations under this Agreement.\n7. Solicitation of Employees. I agree that for a period of twelve (12) months immediately following the termination of my relationship with\nthe Company for any reason, whether with or without cause, I shall not either directly or indirectly solicit, induce, recruit or encourage any of the\nCompany’s employees to leave their employment, or take away such employees, or attempt to solicit, induce, recruit, encourage or take away\nemployees of the Company, either for myself or for any other person or entity.\n8. Conflict of Interest Guidelines. I agree to diligently adhere to the Conflict of Interest Guidelines attached as Exhibit D hereto.\n9. Representations. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Agreement. I\nrepresent that my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information\nacquired by me in confidence or in trust prior to my employment by the Company. I hereby represent and warrant that I have not entered into, and I\nagree [ will not enter into, any oral or written agreement in conflict herewith.\n10. Arbitration and Equitable Relief.\n(a) Arbitration. In consideration of my employment with the Company, its promise to arbitrate all employment-related disputes and\nmy receipt of the compensation, pay raises and other benefits paid to me by the Company, at present and in the future, I agree that any and all\ncontroversies, claims, or disputes with anyone (including the Company and any employee, officer, director, shareholder or benefit plan of the\nCompany in their capacity as such or otherwise) arising out of, relating to, or resulting from my employment with the Company or the\ntermination of my employment with the Company, including any breach of this Agreement, shall be subject to binding arbitration under the\narbitration rules set forth in California Code of Civil Procedure Section 1280 through 1294.2, including Section 1283.05 (the “Rules”) and\npursuant to California law. Disputes which I agree to arbitrate, and thereby agree to waive any right to a trial by jury, include any statutory\nclaims under state or federal law, including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, the Americans With\nDisabilities Act of 1990, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the Worker\nAdjustment and Retraining Notification Act, the California Fair Employment and Housing Act, the Family and Medical Leave Act, the\nCalifornia Family Rights Act, the California Labor Code, claims of harassment, discrimination or wrongful termination and any statutory\nclaims. I further understand that this Agreement to arbitrate also applies to any disputes that the Company may have with me.\n(b) Procedure. I agree that any arbitration will be administered by the American Arbitration Association (“AAA”) and that a neutral\narbitrator will be selected in a manner consistent with its National Rules for the Resolution of Employment Disputes. I agree that the arbitrator\nshall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or\nadjudication and motions\nto dismiss and demurrers, prior to any arbitration hearing. I agree that the arbitrator shall issue a written decision on the merits. I also agree that\nthe arbitrator shall have the power to award any remedies, including attorneys’ fees and costs, available under applicable law. I understand that\nthe Company will pay for any administrative or hearing fees charged by the arbitrator or AAA except that I shall pay the first $125.00 of any\nfiling fees associated with any arbitration I initiate. I agree that the arbitrator shall administer and conduct any arbitration in a manner\nconsistent with the Rules and that to the extent that the AAA’s National Rules for the Resolution of Employment Disputes conflict with the\nRules, the Rules shall take precedence.\n(c) Remedy. Except as provided by the Rules and this Agreement, arbitration shall be the sole, exclusive and final remedy for any\ndispute between me and the Company. Accordingly, except as provided for by the Rules and this Agreement, neither I nor the Company will\nbe permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding, the arbitrator will not have the authority to\ndisregard or refuse to enforce any lawful company policy, and the arbitrator shall not order or require the Company to adopt a policy not\notherwise required by law which the Company has not adopted.\n(d) Availability of injunctive relief. Both parties agree that any party may petition a court for injunctive relief as permitted by the\nRules, including, but not limited to, where either party alleges or claims a violation of the At-Will Employment, Confidential Information,\nInvention Assignment, and Arbitration Agreement between me and the Company or any other agreement regarding trade secrets, confidential\ninformation, nonsolicitation or Labor Code §2870. Both parties understand that any breach or threatened breach of such an agreement will\ncause irreparable injury and that money damages will not provide an adequate remedy therefor and both parties hereby consent to the issuance\nof an injunction. In the event either party seeks injunctive relief, the prevailing party shall be entitled to recover reasonable costs and attorneys’\nfees.\n(e) Administrative relief. I understand that this Agreement does not prohibit me from pursuing an administrative claim with a local,\nstate or federal administrative body such as the Department of Fair Employment and Housing, the Equal Employment Opportunity\nCommission or the Workers’ Compensation Board. This Agreement does, however, preclude me from pursuing court action regarding any\nsuch claim.\n(f) Voluntary nature of agreement. I acknowledge and agree that I am executing this Agreement voluntarily and without any duress\nor undue influence by the Company or anyone else. I further acknowledge and agree that I have carefully read this Agreement and that I have\nasked any questions needed for me to understand the terms, consequences and binding effect of this Agreement and fully understand it,\nincluding that I AM WAIVING MY RIGHT TO A JURY TRIAL. Finally, I agree that I have been provided an opportunity to seek the advice\nof an attorney of my choice before signing this Agreement.\n11. General Provisions.\n(@) Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the State of California. I\nhereby expressly consent to the personal jurisdiction of the state and federal courts located in California for any lawsuit filed there against me\nby the Company arising from or relating to this Agreement.\n(b) Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and me concerning\nthe subject matter herein and supersedes all prior discussions or representations between us including, but not limited to, any representations\nmade during my interview(s) or relocation negotiations, whether written or oral. No modification of or amendment to this Agreement, nor any\nwaiver of rights under this Agreement, will be effective unless in writing signed by the President of the Company and me. Any subsequent\nchange or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.\n(c) Severability. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will\ncontinue in full force and effect.\n(d) Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives\nand will be for the benefit of the Company, its successors, and its assigns.\nDate:\nSignature\nName of Employee (typed or printed)\nWitness:\nSignature\nName (typed or printed)\nTitle Date\nNo inventions or improvements\nAdditional Sheets Attached\nSignature of Employee:\nPrint Name of Employee:\nDate:\nExhibit A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nIdentifying Number or Brief Description\nExhibit B\nCALIFORNIA LABOR CODE SECTION 2870\nINVENTION ON OWN TIME - EXEMPTION FROM AGREEMENT\n(@) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably\nanticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from\nbeing required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”\nExhibit C\nACOLOGIX, INC.\nTERMINATION CERTIFICATION\nThis is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists,\ncorrespondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any\naforementioned items belonging to Acologix, Inc., its subsidiaries, affiliates, successors or assigns (together, the “Company”).\nI further certify that I have complied with all the terms of the Company’s At-Will Employment, Confidential Information, Invention\nAssignment, and Arbitration Agreement signed by me, including the reporting of any inventions and original works of authorship (as defined\ntherein), conceived or made by me (solely or jointly with others) covered by that agreement.\nI further agree that, in compliance with the Employment, Confidential Information, Invention Assignment, and Arbitration Agreement, I will\npreserve as confidential all trade secrets, confidential knowledge, data or other proprietary information relating to products, processes, know-how,\ndesigns, formulas, developmental or experimental work, computer programs, data bases, other original works of authorship, customer lists, business\nplans, financial information or other subject matter pertaining to any business of the Company or any of its employees, clients, consultants or\nlicensees.\nI further agree that for twelve (12) months from this date, I will not hire any employees of the Company and I will not solicit, induce, recruit or\nencourage any of the Company’s employees to leave their employment.\nDate:\n(Employee’s Signature)\n(Type/Print Employee’s Name)\nExhibit D\nACOLOGIX, INC.\nCONFLICT OF INTEREST GUIDELINES\nIt is the policy of Acologix, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere to the highest\nprinciples of business ethics. Accordingly, all officers, employees and independent contractors must avoid activities which are in conflict, or give the\nappearance of being in conflict, with these principles and with the interests of the Company. The following are potentially compromising situations\nwhich must be avoided. Any exceptions must be reported to the President and written approval for continuation must be obtained.\n1. Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is a violation\nof this policy whether or not for personal gain and whether or not harm to the Company is intended. (The At-Will Employment, Confidential\nInformation, Invention Assignment, and Arbitration Agreement elaborates on this principle and is a binding agreement.)\n2. Accepting or offering substantial gifts, excessive entertainment, favors or payments which may be deemed to constitute undue influence or\notherwise be improper or embarrassing to the Company.\n3. Participating in civic or professional organizations that might involve divulging confidential information of the Company.\n4. [Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family relationship or\nis or appears to be a personal or social involvement.\n5. Initiating or approving any form of personal or social harassment of employees.\n6. Investing or holding outside directorship in suppliers, customers, or competing companies, including financial speculations, where such\ninvestment or directorship might influence in any manner a decision or course of action of the Company.\n7. Borrowing from or lending to employees, customers or suppliers.\n8. Acquiring real estate of interest to the Company.\n9. Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent employer or other\nperson or entity with whom obligations of confidentiality exist.\n10. Unlawfully discussing prices, costs, customers, sales or markets with competing companies or their employees.\n11. Making any unlawful agreement with distributors with respect to prices.\n12. Improperly using or authorizing the use of any inventions which are the subject of patent claims of any other person or entity.\n13. Engaging in any conduct which is not in the best interest of the Company.\nEach officer, employee and independent contractor must take every necessary action to ensure compliance with these guidelines and to bring\nproblem areas to the attention of higher management for review. Violations of this conflict of interest policy may result in discharge without\nwarning.	EX-10.5 13 dex105.htm FORM OF AT-WILL EMPLOYEMENT, CONFIDENTIAL INFORMATION, INVENTION\nASSIGNMENT..\nEXHIBIT 10.5\nACOLOGIX, INC.\nAT-WILL EMPLOYMENT, CONFIDENTIAL INFORMATION,\nINVENTION ASSIGNMENT,\nAND ARBITRATION AGREEMENT\nAs a condition of my employment with Acologix, Inc., its subsidiaries, affiliates, successors or assigns (together the "Company"), and in\nconsideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by Company, I agree to the\nfollowing:\n1. At-Will Employment. I understand and acknowledge that my employment with the Company is for an unspecified duration and\nconstitutes "at-will" employment. I also understand that any representation to the contrary is unauthorized and not valid unless obtained in writing\nand signed by the President of the Company. I acknowledge that this employment relationship may be terminated at any time, with or without good\ncause or for any or no cause, at the option either of the Company or myself, with or without notice.\n2. Confidential Information.\n(a) Company Information I agree at all times during the term of my employment and thereafter, to hold in strictest confidence, and\nnot to use, except for the benefit of the Company, or to disclose to any person, firm or corporation without written authorization of the Board\nof Directors of the Company, any Confidentia Information of the Company, except under a non-disclosure agreement duly authorized and\nexecuted by the Company. I understand that "Confidentia Information" means any non-public information that relates to the actual or\nanticipated business or research and development of the Company, technical data, trade secrets or know-how, including, but not limited to,\nresearch, product plans or other information regarding Company's products or services and markets therefor, customer lists and customers\n(including, but not limited to, customers of the Company on whom I called or with whom I became acquainted during the term of my\nemployment), markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware\nconfiguration information, marketing, finances or other business information disclosed to me by the Company either directly or indirectly, in\nwriting, orally or by drawings or observation of parts or equipment. I further understand that Confidential Information does not include any of\nthe foregoing items which have become publicly known and made generally available through no wrongful act of mine or of others who were\nunder confidentiality obligations as to the item or items involved or improvements or new versions thereof.\n(b) Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose any\nproprietary information or trade secrets of any former or concurrent employer or other person or entity and that I will not bring onto the\npremises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless\nconsented to in writing by such employer, person or entity.\n(c) Third Party. Information. I recognize that the Company has received and in the future will receive from third parties their\nconfidential or proprietary information subject to a duty on the Company's part to maintain the confidentiality of such information and to use it\nonly for certain limited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose\nit to any person, firm or corporation or to use it except as necessary in carrying out my work for the Company consistent with the Company's\nagreement with such third party.\n3. Inventions.\n(a) Inventions Retained and Licensed. I have attached hereto, as Exhibit A, a list describing all inventions, original works of\nauthorship, developments, improvements, and trade secrets which were made by me prior to my employment with the Company (collectively\nreferred to as "Prior Inventions"), which belong to me, which relate to the Company's proposed business, products or research and\ndevelopment, and which are not\nassigned to the Company hereunder; or, if no such list is attached, I represent that there are no such Prior Inventions. If in the course of my\nemployment with the Company, I incorporate into a Company product, process or service a Prior Invention owned by me or in which I have an\ninterest, I hereby grant to the Company a nonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, worldwide license to make, have\nmade, modify, use and sell such Prior Invention as part of or in connection with such product, process or service, and to practice any method\nrelated thereto.\n(b) Assignment of Inventions. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole\nright and benefit of the Company, and hereby assign to the Company, or its designee, all my right, title, and interest in and to any and all\ninventions, original works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets,\nwhether or not patentable or registrable under copyright or similar laws, which I may solely or jointly conceive or develop or reduce to\npractice, or cause to be conceived or developed or reduced to practice, during the period of time I am in the employ of the Company\n(collectively referred to as "Inventions"), except as provided in Section 3(f) below. I further acknowledge that all original works of authorship\nwhich are made by me (solely or jointly with others) within the scope of and during the period of my employment with the Company and\nwhich are protectible by copyright are "works made for hire," as that term is defined in the United States Copyright Act. I understand and\nagree that the decision whether or not to commercialize or market any invention developed by me solely or jointly with others is within the\nCompany's sole discretion and for the Company's sole benefit and that no royalty will be due to me as a result of the Company's efforts to\ncommercialize or market any such invention.\n(c) Inventions Assigned to the United States. I agree to assign to the United States government all my right, title, and interest in and\nto any and all Inventions whenever such full title is required to be in the United States by a contract between the Company and the United\nStates or any of its agencies.\n(d) Maintenance of Records. I agree to keep and maintain adequate and current written records of all Inventions made by me (solely\nor jointly with others) during the term of my employment with the Company. The records will be in the form of notes, sketches, drawings, and\nany other format that may be specified by the Company. The records will be available to and remain the sole property of the Company at all\ntimes.\n(e) Patent and Copyright Registrations. I agree to assist the Company, or its designee, at the Company's expense, in every proper\nway to secure the Company's rights in the Inventions and any copyrights, patents, mask work rights or other intellectual property rights\nrelating thereto in any and all countries, including the disclosure to the Company of all pertinent information and data with respect thereto, the\nexecution of all applications, specifications, oaths, assignments and all other instruments which the Company shall deem necessary in order to\napply for and obtain such rights and in order to assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive\nrights, title and interest in and to such Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating\nthereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers\nshall continue after the termination of this Agreement If the Company is unable because of my mental or physical incapacity or for any other\nreason to secure my signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations\ncovering Inventions or original works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the\nCompany and its duly authorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file\nany such applications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright\nregistrations thereon with the same legal force and effect as if executed by me.\n(f) Exception to Assignments. I understand that the provisions of this Agreement requiring assignment of Inventions to the Company\ndo not apply to any invention which qualifies fully under the provisions of California Labor Code Section 2870 (attached hereto as Exhibit B)\nI will advise the Company promptly in writing of any inventions that I believe meet the criteria in California Labor Code Section 2870 and are\nnot otherwise disclosed on Exhibit A.\n2\n4. Conflicting Employment. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during\nthe term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.\n5.\nReturning Company Documents. I agree that, at the time of leaving the employ of the Company, I will deliver to the Company (and will\nnot\nkeep\nin\nmy possession, recreate or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence,\nspecifications, drawings blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items\ndeveloped by me pursuant to my employment with the Company or otherwise belonging to the Company, its successors or assigns, including,\nwithout limitation, those records maintained pursuant to paragraph 3(d). In the event of the termination of my employment, I agree to sign and\ndeliver the "Termination Certification" attached hereto as Exhibit C.\n6.\nNotification of New Employer. In the event that I leave the employ of the Company, I hereby grant consent to notification by the\nCompany to my new employer about my rights and obligations under this Agreement.\n7. Solicitation of Employees. I agree that for a period of twelve (12) months immediately following the termination of my relationship with\nthe Company for any reason, whether with or without cause, I shall not either directly or indirectly solicit, induce, recruit or encourage any of the\nCompany's employees to leave their employment, or take away such employees, or attempt to solicit, induce, recruit, encourage or take away\nemployees of the Company, either for myself or for any other person or entity.\n8.\nConflict of Interest Guidelines. I agree to diligently adhere to the Conflict of Interest Guidelines attached as Exhibit D hereto.\n9. Representations. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Agreement. I\nrepresent that my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information\nacquired by me in confidence or in trust prior to my employment by the Company. I hereby represent and warrant that I have not entered into, and I\nagree I will not enter into, any oral or written agreement in conflict herewith.\n10. Arbitration and Equitable Relief.\n(a) Arbitration. In consideration of my employment with the Company, its promise to arbitrate all employment-related disputes and\nmy receipt of the compensation, pay raises and other benefits paid to me by the Company, at present and in the future, I agree that any and all\ncontroversies, claims, or disputes with anyone (including the Company and any employee, officer, director, shareholder or benefit plan of the\nCompany in their capacity as such or otherwise) arising out of, relating to, or resulting from my employment with the Company or the\ntermination of my employment with the Company, including any breach of this Agreement, shall be subject to binding arbitration under the\narbitration rules set forth in California Code of Civil Procedure Section 1280 through 1294.2, including Section 1283.05 (the "Rules") and\npursuant to California law. Disputes which I agree to arbitrate, and thereby agree to waive any right to a trial by jury, include any statutory\nclaims under state or federal law, including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, the Americans With\nDisabilities Act of 1990, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the Worker\nAdjustment and Retraining Notification Act, the California Fair Employment and Housing Act, the Family and Medical Leave Act, the\nCalifornia Family Rights Act, the California Labor Code, claims of harassment, discrimination or wrongful termination and any statutory\nclaims. I further understand that this Agreement to arbitrate also applies to any disputes that the Company may have with me.\n(b) Procedure. I agree that any arbitration will be administered by the American Arbitration Association ("AAA") and that a neutral\narbitrator will be selected in a manner consistent with its National Rules for the Resolution of Employment Disputes. I agree that the arbitrator\nshall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or\nadjudication and motions\n3\nto dismiss and demurrers, prior to any arbitration hearing. I agree that the arbitrator shall issue a written decision on the merits. I also agree that\nthe arbitrator shall have the power to award any remedies, including attorneys' fees and costs, available under applicable law. I understand that\nthe Company will pay for any administrative or hearing fees charged by the arbitrator or AAA except that I shall pay the first $125.00 of any\nfiling fees associated with any arbitration I initiate. I agree that the arbitrator shall administer and conduct any arbitration in a manner\nconsistent with the Rules and that to the extent that the AAA's National Rules for the Resolution of Employment Disputes conflict with the\nRules, the Rules shall take precedence.\n(c)\nRemedy.. Except as provided by the Rules and this Agreement, arbitration shall be the sole, exclusive and final remedy for any\ndispute between me and the Company. Accordingly, except as provided for by the Rules and this Agreement, neither I nor the Company will\nbe permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding, the arbitrator will not have the authority to\ndisregard or refuse to enforce any lawful company policy, and the arbitrator shall not order or require the Company to adopt a policy not\notherwise required by law which the Company has not adopted.\n(d) Availability. of injunctive relief. Both parties agree that any party may petition a court for injunctive relief as permitted by the\nRules, including, but not limited to, where either party alleges or claims a violation of the At-Will Employment, Confidential Information,\nInvention Assignment, and Arbitration Agreement between me and the Company or any other agreement regarding trade secrets, confidential\ninformation, nonsolicitation or Labor Code $2870. Both parties understand that any breach or threatened breach of such an agreement will\ncause irreparable injury and that money damages will not provide an adequate remedy therefor and both parties hereby consent to the issuance\nof an injunction. In the event either party seeks injunctive relief, the prevailing party shall be entitled to recover reasonable costs and attorneys'\nfees.\n(e) Administrative relief. I understand that this Agreement does not prohibit me from pursuing an administrative claim with a local,\nstate or federal administrative body such as the Department of Fair Employment and Housing, the Equal Employment Opportunity\nCommission or the Workers' Compensation Board. This Agreement does, however, preclude me from pursuing court action regarding any\nsuch claim.\n(f) Voluntary nature of agreement. I acknowledge and agree that I am executing this Agreement voluntarily and without any duress\nor undue influence by the Company or anyone else. I further acknowledge and agree that I have carefully read this Agreement and that I have\nasked any questions needed for me to understand the terms, consequences and binding effect of this Agreement and fully understand it,\nincluding that I AM WAIVING MY RIGHT TO A JURY TRIAL. Finally, I agree that I have been provided an opportunity to seek the advice\nof an attorney of my choice before signing this Agreement.\n11. General Provisions.\n(a) Governing Law; Consent to Personal Jurisdiction This Agreement will be governed by the laws of the State of California. I\nhereby expressly consent to the personal jurisdiction of the state and federal courts located in California for any lawsuit filed there against me\nby the Company arising from or relating to this Agreement.\n(b) Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and me concerning\nthe subject matter herein and supersedes all prior discussions or representations between us including, but not limited to, any representations\nmade during my interview(s) or relocation negotiations, whether written or oral. No modification of or amendment to this Agreement, nor any\nwaiver of rights under this Agreement, will be effective unless in writing signed by the President of the Company and me. Any subsequent\nchange or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.\n(c) Severability.. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will\ncontinue in full force and effect.\n4\n(d) Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives\nand will be for the benefit of the Company, its successors, and its assigns\nDate:\nSignature\nName of Employee (typed or printed)\nWitness:\nSignature\nName (typed or printed)\n5\nExhibit A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nTitle\nDate\nIdentifying Number or Brief Description\nNo inventions or improvements\nAdditional Sheets Attached\nSignature of Employee:\nPrint Name of Employee:\nDate:\nExhibit B\nCALIFORNIA LABOR CODE SECTION 2870\nINVENTION ON OWN TIME - EXEMPTION FROM AGREEMENT\n(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights\nin\nan\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer's equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably\nanticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\n(b)\nTo the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from\nbeing required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable."\nExhibit C\nACOLOGIX, INC.\nTERMINATION CERTIFICATION\nThis is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists,\ncorrespondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any\naforementioned items belonging to Acologix, Inc., its subsidiaries, affiliates, successors or assigns (together, the "Company").\nI further certify that I have complied with all the terms of the Company's At-Will Employment, Confidential Information, Invention\nAssignment, and Arbitration Agreement signed by me, including the reporting of any inventions and original works of authorship (as defined\ntherein), conceived or made by me (solely or jointly with others) covered by that agreement.\nI further agree that, in compliance with the Employment, Confidential Information, Invention Assignment, and Arbitration Agreement, I will\npreserve as confidential all trade secrets, confidential knowledge, data or other proprietary information relating to products, processes, know-how,\ndesigns, formulas, developmental or experimental work, computer programs, data bases, other original works of authorship, customer lists, business\nplans, financial information or other subject matter pertaining to any business of the Company or any of its employees, clients, consultants or\nlicensees.\nI further agree that for twelve (12) months from this date, I will not hire any employees of the Company and I will not solicit, induce, recruit or\nencourage any of the Company's employees to leave their employment.\nDate:\n(Employee's Signature)\n(Type/Print Employee's Name)\nExhibit D\nACOLOGIX, INC.\nCONFLICT OF INTEREST GUIDELINES\nIt is the policy of Acologix, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere to the highest\nprinciples of business ethics. Accordingly, all officers, employees and independent contractors must avoid activities which are in conflict, or give the\nappearance of being in conflict, with these principles and with the interests of the Company. The following are potentially compromising situations\nwhich must be avoided. Any exceptions must be reported to the President and written approval for continuation must be obtained.\n1.\nRevealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is a violation\nof this policy whether or not for personal gain and whether or not harm to the Company is intended. (The At-Will Employment, Confidential\nInformation, Invention Assignment, and Arbitration Agreement elaborates on this principle and is a binding agreement.)\n2. Accepting or offering substantial gifts, excessive entertainment, favors or payments which may be deemed to constitute undue influence or\notherwise be improper or embarrassing to the Company.\n3. Participating in civic or professional organizations that might involve divulging confidential information of the Company.\n4. Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family relationship or\nis or appears to be a personal or social involvement.\n5. Initiating or approving any form of personal or social harassment of employees.\n6. Investing or holding outside directorship in suppliers, customers, or competing companies, including financial speculations, where such\ninvestment or directorship might influence in any manner a decision or course of action of the Company.\n7. Borrowing from or lending to employees, customers or suppliers.\n8. Acquiring real estate of interest to the Company.\n9. Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent employer or other\nperson or entity with whom obligations of confidentiality exist.\n10. Unlawfully discussing prices, costs, customers, sales or markets with competing companies or their employees.\n11. Making any unlawful agreement with distributors with respect to prices.\n12. Improperly using or authorizing the use of any inventions which are the subject of patent claims of any other person or entity.\n13. Engaging in any conduct which is not in the best interest of the Company.\nEach officer, employee and independent contractor must take every necessary action to ensure compliance with these guidelines and to bring\nproblem areas to the attention of higher management for review. Violations of this conflict of interest policy may result in discharge without\nwarning.	EX-10.5 13 dex105.htm FORM OF AT-WILL EMPLOYEMENT, CONFIDENTIAL INFORMATION, INVENTION\nASSIGNMENT...\nEXHIBIT 10.5\nACOLOGIX, INC.\nAT-WILL EMPLOYMENT, CONFIDENTIAL INFORMATION,\nINVENTION ASSIGNMENT,\nAND ARBITRATION AGREEMENT\nAs a condition of my employment with Acologix, Inc., its subsidiaries, affiliates, successors or assigns (together the “Company”), and in\nconsideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by Company, I agree to the\nfollowing:\n1. At-Will Employment. I understand and acknowledge that my employment with the Company is for an unspecified duration and\nconstitutes “at-will” employment. I also understand that any representation to the contrary is unauthorized and not valid unless obtained in writing\nand signed by the President of the Company. I acknowledge that this employment relationship may be terminated at any time, with or without good\ncause or for any or no cause, at the option either of the Company or myself, with or without notice.\n2. Confidential Information.\n(a) Company Information. I agree at all times during the term of my employment and thereafter, to hold in strictest confidence, and\nnot to use, except for the benefit of the Company, or to disclose to any person, firm or corporation without written authorization of the Board\nof Directors of the Company, any Confidential Information of the Company, except under a non-disclosure agreement duly authorized and\nexecuted by the Company. I understand that “Confidential Information” means any non-public information that relates to the actual or\nanticipated business or research and development of the Company, technical data, trade secrets or know-how, including, but not limited to,\nresearch, product plans or other information regarding Company’s products or services and markets therefor, customer lists and customers\n(including, but not limited to, customers of the Company on whom I called or with whom I became acquainted during the term of my\nemployment), markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware\nconfiguration information, marketing, finances or other business information disclosed to me by the Company either directly or indirectly, in\nwriting, orally or by drawings or observation of parts or equipment. I further understand that Confidential Information does not include any of\nthe foregoing items which have become publicly known and made generally available through no wrongful act of mine or of others who were\nunder confidentiality obligations as to the item or items involved or improvements or new versions thereof.\n(b) Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose any\nproprietary information or trade secrets of any former or concurrent employer or other person or entity and that I will not bring onto the\npremises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless\nconsented to in writing by such employer, person or entity.\n(c) Third Party Information. I recognize that the Company has received and in the future will receive from third parties their\nconfidential or proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it\nonly for certain limited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose\nit to any person, firm or corporation or to use it except as necessary in carrying out my work for the Company consistent with the Company’s\nagreement with such third party.\n3. Inventions.\n(a) Inventions Retained and Licensed. I have attached hereto, as Exhibit A, a list describing all inventions, original works of\nauthorship, developments, improvements, and trade secrets which were made by me prior to my employment with the Company (collectively\nreferred to as “Prior Inventions”), which belong to me, which relate to the Company’s proposed business, products or research and\ndevelopment, and which are not\nassigned to the Company hereunder; or, if no such list is attached, I represent that there are no such Prior Inventions. If in the course of my\nemployment with the Company, I incorporate into a Company product, process or service a Prior Invention owned by me or in which I have an\ninterest, I hereby grant to the Company a nonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, worldwide license to make, have\nmade, modify, use and sell such Prior Invention as part of or in connection with such product, process or service, and to practice any method\nrelated thereto.\n(b) Assignment of Inventions. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole\nright and benefit of the Company, and hereby assign to the Company, or its designee, all my right, title, and interest in and to any and all\ninventions, original works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets,\nwhether or not patentable or registrable under copyright or similar laws, which I may solely or jointly conceive or develop or reduce to\npractice, or cause to be conceived or developed or reduced to practice, during the period of time I am in the employ of the Company\n(collectively referred to as “Inventions”), except as provided in Section 3(f) below. I further acknowledge that all original works of authorship\nwhich are made by me (solely or jointly with others) within the scope of and during the period of my employment with the Company and\nwhich are protectible by copyright are “works made for hire,” as that term is defined in the United States Copyright Act. I understand and\nagree that the decision whether or not to commercialize or market any invention developed by me solely or jointly with others is within the\nCompany’s sole discretion and for the Company’s sole benefit and that no royalty will be due to me as a result of the Company’s efforts to\ncommercialize or market any such invention.\n(c) Inventions Assigned to the United States. I agree to assign to the United States government all my right, title, and interest in and\nto any and all Inventions whenever such full title is required to be in the United States by a contract between the Company and the United\nStates or any of its agencies.\n(d) Maintenance of Records. I agree to keep and maintain adequate and current written records of all Inventions made by me (solely\nor jointly with others) during the term of my employment with the Company. The records will be in the form of notes, sketches, drawings, and\nany other format that may be specified by the Company. The records will be available to and remain the sole property of the Company at all\ntimes.\n(e) Patent and Copyright Registrations. I agree to assist the Company, or its designee, at the Company’s expense, in every proper\nway to secure the Company’s rights in the Inventions and any copyrights, patents, mask work rights or other intellectual property rights\nrelating thereto in any and all countries, including the disclosure to the Company of all pertinent information and data with respect thereto, the\nexecution of all applications, specifications, oaths, assignments and all other instruments which the Company shall deem necessary in order to\napply for and obtain such rights and in order to assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive\nrights, title and interest in and to such Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating\nthereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers\nshall continue after the termination of this Agreement. If the Company is unable because of my mental or physical incapacity or for any other\nreason to secure my signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations\ncovering Inventions or original works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the\nCompany and its duly authorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file\nany such applications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright\nregistrations thereon with the same legal force and effect as if executed by me.\n(f) Exception to Assignments. I understand that the provisions of this Agreement requiring assignment of Inventions to the Company\ndo not apply to any invention which qualifies fully under the provisions of California Labor Code Section 2870 (attached hereto as Exhibit B).\nI will advise the Company promptly in writing of any inventions that I believe meet the criteria in California Labor Code Section 2870 and are\nnot otherwise disclosed on Exhibit A.\n2\n4. Conflicting Employment. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation, consulting or other business activity directly related to the business in which the Company is now involved or becomes involved during\nthe term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company.\n5. Returning Company Documents. I agree that, at the time of leaving the employ of the Company, I will deliver to the Company (and will\nnot keep in my possession, recreate or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence,\nspecifications, drawings blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items\ndeveloped by me pursuant to my employment with the Company or otherwise belonging to the Company, its successors or assigns, including,\nwithout limitation, those records maintained pursuant to paragraph 3(d). In the event of the termination of my employment, I agree to sign and\ndeliver the “Termination Certification” attached hereto as Exhibit C.\n6. Notification of New Employer. In the event that I leave the employ of the Company, I hereby grant consent to notification by the\nCompany to my new employer about my rights and obligations under this Agreement.\n7. Solicitation of Employees. I agree that for a period of twelve (12) months immediately following the termination of my relationship with\nthe Company for any reason, whether with or without cause, I shall not either directly or indirectly solicit, induce, recruit or encourage any of the\nCompany’s employees to leave their employment, or take away such employees, or attempt to solicit, induce, recruit, encourage or take away\nemployees of the Company, either for myself or for any other person or entity.\n8. Conflict of Interest Guidelines. I agree to diligently adhere to the Conflict of Interest Guidelines attached as Exhibit D hereto.\n9. Representations. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Agreement. I\nrepresent that my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information\nacquired by me in confidence or in trust prior to my employment by the Company. I hereby represent and warrant that I have not entered into, and I\nagree I will not enter into, any oral or written agreement in conflict herewith.\n10. Arbitration and Equitable Relief.\n(a) Arbitration. In consideration of my employment with the Company, its promise to arbitrate all employment-related disputes and\nmy receipt of the compensation, pay raises and other benefits paid to me by the Company, at present and in the future, I agree that any and all\ncontroversies, claims, or disputes with anyone (including the Company and any employee, officer, director, shareholder or benefit plan of the\nCompany in their capacity as such or otherwise) arising out of, relating to, or resulting from my employment with the Company or the\ntermination of my employment with the Company, including any breach of this Agreement, shall be subject to binding arbitration under the\narbitration rules set forth in California Code of Civil Procedure Section 1280 through 1294.2, including Section 1283.05 (the “Rules”) and\npursuant to California law. Disputes which I agree to arbitrate, and thereby agree to waive any right to a trial by jury, include any statutory\nclaims under state or federal law, including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, the Americans With\nDisabilities Act of 1990, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the Worker\nAdjustment and Retraining Notification Act, the California Fair Employment and Housing Act, the Family and Medical Leave Act, the\nCalifornia Family Rights Act, the California Labor Code, claims of harassment, discrimination or wrongful termination and any statutory\nclaims. I further understand that this Agreement to arbitrate also applies to any disputes that the Company may have with me.\n(b) Procedure. I agree that any arbitration will be administered by the American Arbitration Association (“AAA”) and that a neutral\narbitrator will be selected in a manner consistent with its National Rules for the Resolution of Employment Disputes. I agree that the arbitrator\nshall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or\nadjudication and motions\n3\nto dismiss and demurrers, prior to any arbitration hearing. I agree that the arbitrator shall issue a written decision on the merits. I also agree that\nthe arbitrator shall have the power to award any remedies, including attorneys’ fees and costs, available under applicable law. I understand that\nthe Company will pay for any administrative or hearing fees charged by the arbitrator or AAA except that I shall pay the first $125.00 of any\nfiling fees associated with any arbitration I initiate. I agree that the arbitrator shall administer and conduct any arbitration in a manner\nconsistent with the Rules and that to the extent that the AAA’s National Rules for the Resolution of Employment Disputes conflict with the\nRules, the Rules shall take precedence.\n(c) Remedy. Except as provided by the Rules and this Agreement, arbitration shall be the sole, exclusive and final remedy for any\ndispute between me and the Company. Accordingly, except as provided for by the Rules and this Agreement, neither I nor the Company will\nbe permitted to pursue court action regarding claims that are subject to arbitration. Notwithstanding, the arbitrator will not have the authority to\ndisregard or refuse to enforce any lawful company policy, and the arbitrator shall not order or require the Company to adopt a policy not\notherwise required by law which the Company has not adopted.\n(d) Availability of injunctive relief. Both parties agree that any party may petition a court for injunctive relief as permitted by the\nRules, including, but not limited to, where either party alleges or claims a violation of the At-Will Employment, Confidential Information,\nInvention Assignment, and Arbitration Agreement between me and the Company or any other agreement regarding trade secrets, confidential\ninformation, nonsolicitation or Labor Code §2870. Both parties understand that any breach or threatened breach of such an agreement will\ncause irreparable injury and that money damages will not provide an adequate remedy therefor and both parties hereby consent to the issuance\nof an injunction. In the event either party seeks injunctive relief, the prevailing party shall be entitled to recover reasonable costs and attorneys’\nfees.\n(e) Administrative relief. I understand that this Agreement does not prohibit me from pursuing an administrative claim with a local,\nstate or federal administrative body such as the Department of Fair Employment and Housing, the Equal Employment Opportunity\nCommission or the Workers’ Compensation Board. This Agreement does, however, preclude me from pursuing court action regarding any\nsuch claim.\n(f) Voluntary nature of agreement. I acknowledge and agree that I am executing this Agreement voluntarily and without any duress\nor undue influence by the Company or anyone else. I further acknowledge and agree that I have carefully read this Agreement and that I have\nasked any questions needed for me to understand the terms, consequences and binding effect of this Agreement and fully understand it,\nincluding that I AM WAIVING MY RIGHT TO A JURY TRIAL. Finally, I agree that I have been provided an opportunity to seek the advice\nof an attorney of my choice before signing this Agreement.\n11. General Provisions.\n(a) Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the State of California. I\nhereby expressly consent to the personal jurisdiction of the state and federal courts located in California for any lawsuit filed there against me\nby the Company arising from or relating to this Agreement.\n(b) Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and me concerning\nthe subject matter herein and supersedes all prior discussions or representations between us including, but not limited to, any representations\nmade during my interview(s) or relocation negotiations, whether written or oral. No modification of or amendment to this Agreement, nor any\nwaiver of rights under this Agreement, will be effective unless in writing signed by the President of the Company and me. Any subsequent\nchange or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.\n(c) Severability. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will\ncontinue in full force and effect.\n4\n(d) Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives\nand will be for the benefit of the Company, its successors, and its assigns.\nDate:\nSignature\nName of Employee (typed or printed)\nWitness:\nSignature\nName (typed or printed)\n5\nExhibit A\nLIST OF PRIOR INVENTIONS\nAND ORIGINAL WORKS OF AUTHORSHIP\nTitle\nDate\nIdentifying Number or Brief Description\nNo inventions or improvements\nAdditional Sheets Attached\nSignature of Employee:\nPrint Name of Employee:\nDate:\nExhibit B\nCALIFORNIA LABOR CODE SECTION 2870\nINVENTION ON OWN TIME – EXEMPTION FROM AGREEMENT\n(a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an\ninvention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the\nemployer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:\n(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably\nanticipated research or development of the employer; or\n(2) Result from any work performed by the employee for the employer.\n(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from\nbeing required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.”\nExhibit C\nACOLOGIX, INC.\nTERMINATION CERTIFICATION\nThis is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists,\ncorrespondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any\naforementioned items belonging to Acologix, Inc., its subsidiaries, affiliates, successors or assigns (together, the “Company”).\nI further certify that I have complied with all the terms of the Company’s At-Will Employment, Confidential Information, Invention\nAssignment, and Arbitration Agreement signed by me, including the reporting of any inventions and original works of authorship (as defined\ntherein), conceived or made by me (solely or jointly with others) covered by that agreement.\nI further agree that, in compliance with the Employment, Confidential Information, Invention Assignment, and Arbitration Agreement, I will\npreserve as confidential all trade secrets, confidential knowledge, data or other proprietary information relating to products, processes, know-how,\ndesigns, formulas, developmental or experimental work, computer programs, data bases, other original works of authorship, customer lists, business\nplans, financial information or other subject matter pertaining to any business of the Company or any of its employees, clients, consultants or\nlicensees.\nI further agree that for twelve (12) months from this date, I will not hire any employees of the Company and I will not solicit, induce, recruit or\nencourage any of the Company’s employees to leave their employment.\nDate:\n(Employee’s Signature)\n(Type/Print Employee’s Name)\nExhibit D\nACOLOGIX, INC.\nCONFLICT OF INTEREST GUIDELINES\nIt is the policy of Acologix, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere to the highest\nprinciples of business ethics. Accordingly, all officers, employees and independent contractors must avoid activities which are in conflict, or give the\nappearance of being in conflict, with these principles and with the interests of the Company. The following are potentially compromising situations\nwhich must be avoided. Any exceptions must be reported to the President and written approval for continuation must be obtained.\n1. Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is a violation\nof this policy whether or not for personal gain and whether or not harm to the Company is intended. (The At-Will Employment, Confidential\nInformation, Invention Assignment, and Arbitration Agreement elaborates on this principle and is a binding agreement.)\n2. Accepting or offering substantial gifts, excessive entertainment, favors or payments which may be deemed to constitute undue influence or\notherwise be improper or embarrassing to the Company.\n3. Participating in civic or professional organizations that might involve divulging confidential information of the Company.\n4. Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family relationship or\nis or appears to be a personal or social involvement.\n5. Initiating or approving any form of personal or social harassment of employees.\n6. Investing or holding outside directorship in suppliers, customers, or competing companies, including financial speculations, where such\ninvestment or directorship might influence in any manner a decision or course of action of the Company.\n7. Borrowing from or lending to employees, customers or suppliers.\n8. Acquiring real estate of interest to the Company.\n9. Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent employer or other\nperson or entity with whom obligations of confidentiality exist.\n10. Unlawfully discussing prices, costs, customers, sales or markets with competing companies or their employees.\n11. Making any unlawful agreement with distributors with respect to prices.\n12. Improperly using or authorizing the use of any inventions which are the subject of patent claims of any other person or entity.\n13. Engaging in any conduct which is not in the best interest of the Company.\nEach officer, employee and independent contractor must take every necessary action to ensure compliance with these guidelines and to bring\nproblem areas to the attention of higher management for review. Violations of this conflict of interest policy may result in discharge without\nwarning.
+cfbc84fec6483fdaedb028c54380609d.pdf	effective_date jurisdiction party term	EX-99.(E)(3) 3 d832000dex99e3.htm EX-99.(E)(3)\nExhibit (e)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (the “Agreement”), effective July 31, 2014 (the “Effective Date”), is by and between BioMarin\nPharmaceutical Inc., a Delaware corporation, with offices at 105 Digital Drive, Novato, CA 94949 (“BioMarin”), and Prosensa Holding N.V., a\nNetherlands corporation with offices at J.H. Oortweg 21, 2333 CH, Leiden, The Netherlands. (“Prosensa”). Each of BioMarin and Prosensa may\nbe referred to herein as a “Party” or collectively as the “Parties.”\nWHEREAS, the Parties, for their mutual benefit, desire to disclose certain confidential information to one another in order to evaluate a\npotential business or collaborative relationship. (In the capacity of disclosing information, each Party is referred to as the “Disclosing Party”,\nand in the capacity of receiving information, each party is referred to as the “Receiving Party”.)\nNOW, THEREFORE, in consideration of the premises and covenants contained herein, the Parties agree as follows:\n1. Purpose. The Parties have entered into this Agreement to facilitate the transfer of information between them and/or one or more of their\nAffiliates in order for the Parties to evaluate whether or not to pursue a potential business opportunity or collaboration with respect to the\ndevelopment and commercialization of Prosensa’s products including, but not limited to, Drisapersen (the “Purpose”), and solely for that\nPurpose, the Parties have disclosed or may disclose to each other information that is proprietary and/or confidential to the Disclosing Party which\nit desires be treated as confidential. For purposes of this Agreement, with respect to a Party, “Affiliate” shall mean a company controlled by,\nunder the control of, or in common control with such Party.\n2. Confidential Information. As used herein, “Confidential Information” shall mean any and all technical and non-technical information\npreviously, presently, or subsequently disclosed or provided by Disclosing Party and/or one or more of its Affiliates to Receiving Party and/or\none or more of its Affiliates in written, oral or electronic form. Confidential Information will be deemed to include, without limitation:\n(a) any technology, inventions, products, chemical compounds and compositions, formulations, molecules, precursors, methods, concepts,\nideas, plans, processes, specifications, characteristics, techniques, know-how and assays; clinical information such as raw data, scientific\npreclinical or clinical data, observations, records, databases, dosing regimes, clinical studies or protocols, posters, presentations and abstracts,\nproduct pipelines, timelines and schedules; business information such as development, marketing, sales, pricing and commercialization plans,\nforecasts, proposals, customer lists, suppliers, consulting relationships, operating, performance and cost structures, and any other non-public\ninformation or other trade secrets, whether scientific, clinical or financial in nature, relating directly or indirectly to the business of the Disclosing\nParty; and\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been\nprepared by or for the Receiving Party and that contains, reflects, interprets or is based directly or indirectly upon any information of the type\nreferred to in Section 2(a) above;\nLOGO\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in Section 2(a) above has been made\navailable to the Receiving Party; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\n3. Term. The term of this Agreement commences on the Effective Date and ends on the date one (1) year thereafter. Receiving Party’s obligations\nto protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement and will be binding upon\nReceiving Party, its heirs, successors, and assigns for a period of five (5) years from expiration or termination of this Agreement.\n4. Treatment of Confidential Information.\n(a) Use; Disclosure. Receiving Party shall use the Confidential Information solely for the Purpose defined above. Receiving Party shall not\nuse the Confidential Information for any other purpose, including but not limited to using it in connection with the development or\ncommercialization of any process or product, or using it in connection with any submission to any governmental agency, including any patent\noffice or regulatory authority, or the like, without the express written permission of Disclosing Party. Receiving Party shall disseminate\nConfidential Information only to those employees, independent contractors, advisors, or Affiliates, on a “need to know” basis in order for\nReceiving Party to carry out the Purpose, and Receiving Party warrants that all such employees, independent contractors, advisors, or Affiliates\nshall be advised of the confidential nature of the information received and that all such employees, independent contractors, advisors, Affiliates\nshall be bound in writing by obligations no less stringent than the terms set forth in this Agreement. Receiving Party agrees to notify Disclosing\nParty immediately in writing upon any loss, misuse, misappropriation, or other unauthorized disclosure of the Confidential Information of\nDisclosing Party that may come to Receiving Party’s attention.\n(b) Degree of Care. Receiving Party shall hold the Confidential Information in strict confidence, and shall take all reasonable precautions\nto protect the Confidential Information at all times from unauthorized disclosure, publication, or use, including, without limitation, using at least\nthe same degree of care as it employs to protect its own Confidential Information of like nature (but in any event no less than a reasonable degree\nof care), acting in a manner consistent with its obligations under this Agreement.\n(c) Exclusions. The confidentiality, non-disclosure and non-use obligations of this Agreement shall not apply to Confidential Information\ndisclosed to the Receiving Party that: (i) can be shown by written evidence to be in the Receiving Party’s possession before receipt of the\nConfidential Information from Disclosing Party; (ii) is independently developed by Receiving Party without the use of the Confidential\nInformation as evidenced by written records; (iii) is or becomes publicly available through no fault of the Receiving Party; or (iv) is rightfully\nreceived by the Receiving Party on a non-confidential basis from a third party without breach of a duty of\nLOGO\nconfidentiality to Disclosing Party. As used herein, the term “publicly available” shall mean readily accessible to the public in a written\npublication, and shall not mean information the substance of which must be pieced together from a number of different publications or other\nsources.\n(d) Legally Required Disclosures. Nothing in this Agreement shall preclude Receiving Party from making any disclosure of Confidential\nInformation that is required by applicable law or regulation or by a valid order of a court or other governmental body having jurisdiction,\nprovided that Receiving Party uses best efforts to limit the scope of the required disclosure, provides notification to Disclosing Party of such\nrequirement as soon as reasonably possible, and cooperates with Disclosing Party in seeking an appropriate protective order, confidential\ntreatment, or similar remedy limiting the subsequent use and disclosure of any information required to be disclosed.\n(e) No Obligation to Proceed. Nothing herein shall obligate either Party to proceed with any transaction between them, and each Party\nreserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement. This Agreement does not constitute a\nbinding agreement to enter into any definitive agreement. Receiving Party understands that nothing herein requires the disclosure of any\nConfidential Information by Disclosing Party, which shall be disclosed, if at all, at the discretion of Disclosing Party.\n(f) Return of Materials. Immediately upon (a) termination or expiration of this Agreement, (b) the decision by either Party not to enter into\nthe business or scientific relationship contemplated above, or (c) a request by Disclosing Party at any time, Receiving Party will promptly turn\nover to Disclosing Party, or destroy, all Confidential Information of Disclosing Party and all documents, media, and other tangible materials\ncontaining any such Confidential Information and any and all extracts thereof. In the event that Receiving Party destroys Confidential\nInformation, upon the destruction thereof, Receiving Party will issue to Disclosing Party a certificate as proof of compliance with Disclosing\nParty’s request. Notwithstanding this Section 4(f), the Receiving Party shall not be required to purge Confidential Information from its computer\nsystem’s historical back-up media, provided that such Confidential Information that is retained will remain subject to the terms of this\nAgreement.\n(g) No Transfer or License. Nothing in this Agreement is intended to grant or transfer any right to Receiving Party under any patent,\ncopyright or other intellectual property right of Disclosing Party, nor shall this Agreement grant or transfer to the Receiving Party any right in or\nto the Confidential Information except as expressly set forth herein. None of the Confidential Information which may be disclosed by Disclosing\nParty shall constitute any representation, warranty, assurance, guarantee or inducement by Disclosing Party to Receiving Party, including,\nwithout limitation, with respect to the non-infringement of intellectual property rights, or other rights of third persons.\n(h) Both parties hereby acknowledges that in its review the other party’s Confidential Information it and its representatives will have access\nto material non-public information concerning this other party. Each Party acknowledges, that it and its representatives are aware, that the United\nStates or other applicable securities laws prohibit any person, who has received from an issuer material non-public information relating to an\nissuer of securities, from\nLOGO\npurchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n5. Miscellaneous.\n(a) Use of Names; Publicity. Except as otherwise provided herein, nothing contained in this Agreement shall be construed as conferring\nany right on Receiving Party to use in any manner Disclosing Party’s name or any trade name or trademark. Receiving Party will make no public\nannouncement or other public statement concerning the existence of this Agreement or the Parties’ respective performances hereunder without\nthe prior written consent of Disclosing Party, which may be withheld in Disclosing Party’s sole and absolute discretion, except as necessary to\ncomply with applicable law or regulations.\n(b) Assignment. Receiving Party shall not transfer or assign any rights or obligations under this Agreement without the prior written\nconsent of Disclosing Party, which consent may be given or withheld in Disclosing Party’s sole and absolute discretion.\n(c) Severability. If any provision of this Agreement should be held invalid or unenforceable, the remaining provisions shall be unaffected\nand shall remain in full force and effect, to the extent consistent with the intent of the parties as evidenced by this Agreement as a whole.\n(d) Waivers. All waivers must be in writing and signed by the Party to be charged. Any waiver or failure to enforce any provision of this\nAgreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.\n(e) Notices. All notices or reports permitted or required under this Agreement will be in writing and will be sent by personal delivery or\nreputable expedited delivery service with signature required. All such notices or reports will be deemed given upon receipt. Notices will be sent\nto the addresses set forth at the beginning of this Agreement, in this section, or such other addresses as either Party may specify in writing.\n(f) Governing Law: Jurisdiction. This Agreement is made under and shall be construed according to the laws of the State of California\nwithout regard to any conflict of law principles that would provide for the application of the law of another jurisdiction. Any disputes under this\nAgreement may be brought in the state courts and the Federal courts located in the Northern District of California, and the parties hereby consent\nto the personal jurisdiction and exclusive venue of these courts.\n(g) Injunctive Relief. Receiving Party agrees that disclosure of Confidential Information without the express written permission of\nDisclosing Party will cause Disclosing Party irreparable harm and that any breach or threatened breach of this Agreement by Receiving Party\nwill entitle Disclosing Party to injunctive relief, in addition to any other legal and/or equitable remedies available to it. Notwithstanding clause\n(f), Disclosing Party may seek injunctive relief in any court of competent jurisdiction.\nLOGO\n(h) Independence. The Parties do not intend that any agency or partnership relationship be created between them by this Agreement.\n(i) Entire Agreement; Amendment. This Agreement constitutes the final, complete and exclusive agreement of the Parties with respect to\nthe subject matter hereof and supersedes all prior and contemporaneous agreements, communications, negotiations or understandings between\nthe Parties with respect to the matters addressed herein. No modification of or amendment to this Agreement will be effective unless in writing\nand signed by all Parties.\n(j) Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or .pdf), each of which shall\nconstitute an original and all of which, when taken together, shall constitute one agreement.\nIN WITNESS WHEREOF, the Parties have caused this Non-Disclosure Agreement to be executed as of the Effective Date.\nPROSENSA HOLDING N.V.\nBIOMARIN PHARMACEUTICAL INC.\nLOGO\nBy: /s/ Luc Dochez\nBy: /s/ Joshua Grass\nName: Luc Dochez\nName: Joshua Grass\nTitle: Chief Business Officer\nTitle: SVP, Business and Corporate Development	EX-99.(E)(3) 3 d832000dex99e3.htm EX-99.(E)(3)\nExhibit (¢)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (the “Agreement”), effective July 31, 2014 (the “Effective Date”), is by and between BioMarin\nPharmaceutical Inc., a Delaware corporation, with offices at 105 Digital Drive, Novato, CA 94949 (“BieMarin”), and Prosensa Holding N.V.,, a\nNetherlands corporation with offices at J.H. Oortweg 21, 2333 CH, Leiden, The Netherlands. (“Prosensa”). Each of BioMarin and Prosensa may\nbe referred to herein as a “Party” or collectively as the “Parties.”\nWHEREAS, the Parties, for their mutual benefit, desire to disclose certain confidential information to one another in order to evaluate a\npotential business or collaborative relationship. (In the capacity of disclosing information, each Party is referred to as the “Disclosing Party”,\nand in the capacity of receiving information, each party is referred to as the “Receiving Party”.)\nNOW, THEREFORE, in consideration of the premises and covenants contained herein, the Parties agree as follows:\n1. Purpose. The Parties have entered into this Agreement to facilitate the transfer of information between them and/or one or more of their\nAffiliates in order for the Parties to evaluate whether or not to pursue a potential business opportunity or collaboration with respect to the\ndevelopment and commercialization of Prosensa’s products including, but not limited to, Drisapersen (the “Purpose”), and solely for that\nPurpose, the Parties have disclosed or may disclose to each other information that is proprietary and/or confidential to the Disclosing Party which\nit desires be treated as confidential. For purposes of this Agreement, with respect to a Party, “Affiliate” shall mean a company controlled by,\nunder the control of, or in common control with such Party.\n2. Confidential Information. As used herein, “Confidential Information” shall mean any and all technical and non-technical information\npreviously, presently, or subsequently disclosed or provided by Disclosing Party and/or one or more of its Affiliates to Receiving Party and/or\none or more of its Affiliates in written, oral or electronic form. Confidential Information will be deemed to include, without limitation:\n(a) any technology, inventions, products, chemical compounds and compositions, formulations, molecules, precursors, methods, concepts,\nideas, plans, processes, specifications, characteristics, techniques, know-how and assays; clinical information such as raw data, scientific\npreclinical or clinical data, observations, records, databases, dosing regimes, clinical studies or protocols, posters, presentations and abstracts,\nproduct pipelines, timelines and schedules; business information such as development, marketing, sales, pricing and commercialization plans,\nforecasts, proposals, customer lists, suppliers, consulting relationships, operating, performance and cost structures, and any other non-public\ninformation or other trade secrets, whether scientific, clinical or financial in nature, relating directly or indirectly to the business of the Disclosing\nParty; and\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been\nprepared by or for the Receiving Party and that contains, reflects, interprets or is based directly or indirectly upon any information of the type\nreferred to in Section 2(a) above;\n».LOGO\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in Section 2(a) above has been made\navailable to the Receiving Party; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\n3. Term. The term of this Agreement commences on the Effective Date and ends on the date one (1) year thereafter. Receiving Party’s obligations\nto protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement and will be binding upon\nReceiving Party, its heirs, successors, and assigns for a period of five (5) years from expiration or termination of this Agreement.\n4. Treatment of Confidential Information.\n(a) Use; Disclosure. Receiving Party shall use the Confidential Information solely for the Purpose defined above. Receiving Party shall not\nuse the Confidential Information for any other purpose, including but not limited to using it in connection with the development or\ncommercialization of any process or product, or using it in connection with any submission to any governmental agency, including any patent\noffice or regulatory authority, or the like, without the express written permission of Disclosing Party. Receiving Party shall disseminate\nConfidential Information only to those employees, independent contractors, advisors, or Affiliates, on a “need to know” basis in order for\nReceiving Party to carry out the Purpose, and Receiving Party warrants that all such employees, independent contractors, advisors, or Affiliates\nshall be advised of the confidential nature of the information received and that all such employees, independent contractors, advisors, Affiliates\nshall be bound in writing by obligations no less stringent than the terms set forth in this Agreement. Receiving Party agrees to notify Disclosing\nParty immediately in writing upon any loss, misuse, misappropriation, or other unauthorized disclosure of the Confidential Information of\nDisclosing Party that may come to Receiving Party’s attention.\n(b) Degree of Care. Receiving Party shall hold the Confidential Information in strict confidence, and shall take all reasonable precautions\nto protect the Confidential Information at all times from unauthorized disclosure, publication, or use, including, without limitation, using at least\nthe same degree of care as it employs to protect its own Confidential Information of like nature (but in any event no less than a reasonable degree\nof care), acting in a manner consistent with its obligations under this Agreement.\n(c) Exclusions. The confidentiality, non-disclosure and non-use obligations of this Agreement shall not apply to Confidential Information\ndisclosed to the Receiving Party that: (i) can be shown by written evidence to be in the Receiving Party’s possession before receipt of the\nConfidential Information from Disclosing Party; (ii) is independently developed by Receiving Party without the use of the Confidential\nInformation as evidenced by written records; (iii) is or becomes publicly available through no fault of the Receiving Party; or (iv) is rightfully\nreceived by the Receiving Party on a non-confidential basis from a third party without breach of a duty of\n».LOGO\nconfidentiality to Disclosing Party. As used herein, the term “publicly available” shall mean readily accessible to the public in a written\npublication, and shall not mean information the substance of which must be pieced together from a number of different publications or other\nsources.\n(d) Legally Required Disclosures. Nothing in this Agreement shall preclude Receiving Party from making any disclosure of Confidential\nInformation that is required by applicable law or regulation or by a valid order of a court or other governmental body having jurisdiction,\nprovided that Receiving Party uses best efforts to limit the scope of the required disclosure, provides notification to Disclosing Party of such\nrequirement as soon as reasonably possible, and cooperates with Disclosing Party in seeking an appropriate protective order, confidential\ntreatment, or similar remedy limiting the subsequent use and disclosure of any information required to be disclosed.\n(e) No Obligation to Proceed. Nothing herein shall obligate either Party to proceed with any transaction between them, and each Party\nreserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement. This Agreement does not constitute a\nbinding agreement to enter into any definitive agreement. Receiving Party understands that nothing herein requires the disclosure of any\nConfidential Information by Disclosing Party, which shall be disclosed, if at all, at the discretion of Disclosing Party.\n(f) Return of Materials. Immediately upon (a) termination or expiration of this Agreement, (b) the decision by either Party not to enter into\nthe business or scientific relationship contemplated above, or (c) a request by Disclosing Party at any time, Receiving Party will promptly turn\nover to Disclosing Party, or destroy, all Confidential Information of Disclosing Party and all documents, media, and other tangible materials\ncontaining any such Confidential Information and any and all extracts thereof. In the event that Receiving Party destroys Confidential\nInformation, upon the destruction thereof, Receiving Party will issue to Disclosing Party a certificate as proof of compliance with Disclosing\nParty’s request. Notwithstanding this Section 4(f), the Receiving Party shall not be required to purge Confidential Information from its computer\nsystem’s historical back-up media, provided that such Confidential Information that is retained will remain subject to the terms of this\nAgreement.\n(g) No Transfer or License. Nothing in this Agreement is intended to grant or transfer any right to Receiving Party under any patent,\ncopyright or other intellectual property right of Disclosing Party, nor shall this Agreement grant or transfer to the Receiving Party any right in or\nto the Confidential Information except as expressly set forth herein. None of the Confidential Information which may be disclosed by Disclosing\nParty shall constitute any representation, warranty, assurance, guarantee or inducement by Disclosing Party to Receiving Party, including,\nwithout limitation, with respect to the non-infringement of intellectual property rights, or other rights of third persons.\n(h) Both parties hereby acknowledges that in its review the other party’s Confidential Information it and its representatives will have access\nto material non-public information concerning this other party. Each Party acknowledges, that it and its representatives are aware, that the United\nStates or other applicable securities laws prohibit any person, who has received from an issuer material non-public information relating to an\nissuer of securities, from\n».LOGO\npurchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n5. Miscellaneous.\n(a) Use of Names; Publicity. Except as otherwise provided herein, nothing contained in this Agreement shall be construed as conferring\nany right on Receiving Party to use in any manner Disclosing Party’s name or any trade name or trademark. Receiving Party will make no public\nannouncement or other public statement concerning the existence of this Agreement or the Parties’ respective performances hereunder without\nthe prior written consent of Disclosing Party, which may be withheld in Disclosing Party’s sole and absolute discretion, except as necessary to\ncomply with applicable law or regulations.\n(b) Assignment. Receiving Party shall not transfer or assign any rights or obligations under this Agreement without the prior written\nconsent of Disclosing Party, which consent may be given or withheld in Disclosing Party’s sole and absolute discretion.\n(c) Severability. If any provision of this Agreement should be held invalid or unenforceable, the remaining provisions shall be unaffected\nand shall remain in full force and effect, to the extent consistent with the intent of the parties as evidenced by this Agreement as a whole.\n(d) Waivers. All waivers must be in writing and signed by the Party to be charged. Any waiver or failure to enforce any provision of this\nAgreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.\n(e) Notices. All notices or reports permitted or required under this Agreement will be in writing and will be sent by personal delivery or\nreputable expedited delivery service with signature required. All such notices or reports will be deemed given upon receipt. Notices will be sent\nto the addresses set forth at the beginning of this Agreement, in this section, or such other addresses as either Party may specify in writing.\n() Governing Law: Jurisdiction. This Agreement is made under and shall be construed according to the laws of the State of California\nwithout regard to any conflict of law principles that would provide for the application of the law of another jurisdiction. Any disputes under this\nAgreement may be brought in the state courts and the Federal courts located in the Northern District of California, and the parties hereby consent\nto the personal jurisdiction and exclusive venue of these courts.\n(g) Injunctive Relief. Receiving Party agrees that disclosure of Confidential Information without the express written permission of\nDisclosing Party will cause Disclosing Party irreparable harm and that any breach or threatened breach of this Agreement by Receiving Party\nwill entitle Disclosing Party to injunctive relief, in addition to any other legal and/or equitable remedies available to it. Notwithstanding clause\n(f), Disclosing Party may seek injunctive relief in any court of competent jurisdiction.\n».LOGO\n(h) Independence. The Parties do not intend that any agency or partnership relationship be created between them by this Agreement.\n(i) Entire Agreement; Amendment. This Agreement constitutes the final, complete and exclusive agreement of the Parties with respect to\nthe subject matter hereof and supersedes all prior and contemporaneous agreements, communications, negotiations or understandings between\nthe Parties with respect to the matters addressed herein. No modification of or amendment to this Agreement will be effective unless in writing\nand signed by all Parties.\n(j) Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or .pdf), each of which shall\nconstitute an original and all of which, when taken together, shall constitute one agreement.\nIN WITNESS WHEREOF, the Parties have caused this Non-Disclosure Agreement to be executed as of the Effective Date.\n’L\nPROSENSA HOLDING N.V. BIOMARIN PHARMACEUTICAL INC. LOGO\nBy:  /s/ Luc Dochez By: /s/ Joshua Grass\nName: Luc Dochez Name: Joshua Grass\nTitle: Chief Business Officer Title:  SVP, Business and Corporate Development	X-99.(E)(3) 3 d832000dex99e3.htm EX-99.(E)(3)\nExhibit (e)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (the "Agreement"), effective July 31, 2014 (the "Effective Date"), is by and between BioMarin\nPharmaceutical Inc., a Delaware corporation, with offices at 105 Digital Drive, Novato, CA 94949 ("BioMarin"), and Prosensa Holding N.V., a\nNetherlands corporation with offices at J.H. Oortweg 21, 2333 CH, Leiden, The Netherlands. ("Prosensa"). Each of BioMarin and Prosensa may\nbe referred to herein as a "Party" or collectively as the "Parties."\nWHEREAS, the Parties, for their mutual benefit, desire to disclose certain confidential information to one another in order to evaluate a\npotential business or collaborative relationship. (In the capacity of disclosing information, each Party is referred to as the "Disclosing Party",\nand in the capacity of receiving information, each party is referred to as the "Receiving Party".)\nNOW, THEREFORE, in consideration of the premises and covenants contained herein, the Parties agree as follows:\n1. Purpose. The Parties have entered into this Agreement to facilitate the transfer of information between them and/or one or more of their\nAffiliates in order for the Parties to evaluate whether or not to pursue a potential business opportunity or collaboration with respect to the\ndevelopment and commercialization of Prosensa's products including, but not limited to, Drisapersen (the "Purpose"), and solely for that\nPurpose, the Parties have disclosed or may disclose to each other information that is proprietary and/or confidential to the Disclosing Party which\nit desires be treated as confidential. For purposes of this Agreement, with respect to a Party, "Affiliate" shall mean a company controlled by,\nunder the control of, or in common control with such Party.\n2. Confidential Information. As used herein, "Confidential Information" shall mean any and all technical and non-technical information\npreviously, presently, or subsequently disclosed or provided by Disclosing Party and/or one or more of its Affiliates to Receiving Party and/or\none or more of its Affiliates in written, oral or electronic form. Confidential Information will be deemed to include, without limitation:\n(a) any technology, inventions, products, chemical compounds and compositions, formulations, molecules, precursors, methods, concepts,\nideas, plans, processes, specifications, characteristics, techniques, know-how and assays; clinical information such as raw data, scientific\npreclinical or clinical data, observations, records, databases, dosing regimes, clinical studies or protocols, posters, presentations and abstracts,\nproduct pipelines, timelines and schedules; business information such as development, marketing, sales, pricing and commercialization plans,\nforecasts, proposals, customer lists, suppliers, consulting relationships, operating, performance and cost structures, and any other non-public\ninformation or other trade secrets, whether scientific, clinical or financial in nature, relating directly or indirectly to the business of the Disclosing\nParty; and\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been\nprepared by or for the Receiving Party and that contains, reflects, interprets or is based directly or indirectly upon any information of the type\nreferred to in Section 2(a) above;\nALOGO\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in Section 2(a) above has been made\navailable to the Receiving Party; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\n3. Term. The term of this Agreement commences on the Effective Date and ends on the date one (1) year thereafter. Receiving Party's obligations\nto protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement and will be binding upon\nReceiving Party, its heirs, successors, and assigns for a period of five (5) years from expiration or termination of this Agreement.\n4. Treatment of Confidential Information.\n(a) Use; Disclosure. Receiving Party shall use the Confidential Information solely for the Purpose defined above. Receiving Party shall not\nuse the Confidential Information for any other purpose, including but not limited to using it in connection with the development or\ncommercialization of any process or product, or using it in connection with any submission to any governmental agency, including any patent\noffice or regulatory authority, or the like, without the express written permission of Disclosing Party. Receiving Party shall disseminate\nConfidential Information only to those employees, independent contractors, advisors, or Affiliates, on a "need to know" basis in order for\nReceiving Party to carry out the Purpose, and Receiving Party warrants that all such employees, independent contractors, advisors, or Affiliates\nshall be advised of the confidential nature of the information received and that all such employees, independent contractors, advisors, Affiliates\nshall\nbe bound in writing by obligations no less stringent than the terms set forth in this Agreement. Receiving Party agrees to notify Disclosing\nParty immediately in writing upon any loss, misuse, misappropriation, or other unauthorized disclosure of the Confidential Information of\nDisclosing Party that may come to Receiving Party's attention.\n(b) Degree of Care. Receiving Party shall hold the Confidential Information in strict confidence, and shall take all reasonable precautions\nto\nprotect the Confidential Information at all times from unauthorized disclosure, publication, or use, including without limitation, using at least\nthe same degree of care as it employs to protect its own Confidential Information of like nature (but in any event no less than a reasonable degree\nof care), acting in a manner consistent with its obligations under this Agreement.\n(c) Exclusions. The confidentiality, non-disclosure and non-use obligations of this Agreement shall not apply to Confidentia Information\ndisclosed to the Receiving Party that: (i) can be shown by written evidence to be in the Receiving Party's possession before receipt of the\nConfidential Information from Disclosing Party; (ii) is independently developed by Receiving Party without the use of the Confidential\nInformation as evidenced by written records; (iii) is or becomes publicly available through no fault of the Receiving Party; or (iv) is rightfully\nreceived by the Receiving Party on a non-confidential basis from a third party without breach of a duty of\nLOGO\nconfidentiality to Disclosing Party. As used herein, the term "publicly available" shall mean readily accessible to the public in a written\npublication, and shall not mean information the substance of which must be pieced together from a number of different publications or other\nsources.\n(d) Legally Required Disclosures. Nothing in this Agreement shall preclude Receiving Party from making any disclosure of Confidential\nInformation that is required by applicable law or regulation or by a valid order of a court or other governmental body having jurisdiction,\nprovided that Receiving Party uses best efforts to limit the scope of the required disclosure, provides notification to Disclosing Party of such\nrequirement as soon as reasonably possible, and cooperates with Disclosing Party in seeking an appropriate protective order, confidential\ntreatment, or similar remedy limiting the subsequent use and disclosure of any information required to be disclosed.\n(e) No Obligation to Proceed. Nothing herein shall obligate either Party to proceed with any transaction between them, and each Party\nreserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement. This Agreement does not constitute a\nbinding agreement to enter into any definitive agreement. Receiving Party understands that nothing herein requires the disclosure of any\nConfidential Information by Disclosing Party, which shall be disclosed, if at all, at the discretion of Disclosing Party.\n(f) Return of Materials. Immediately upon (a) termination or expiration of this Agreement, (b) the decision by either Party not to enter into\nthe\nbusiness\nor scientific relationship contemplated above, or (c) a request by Disclosing Party at any time, Receiving Party will promptly\nturn\nover to Disclosing Party, or destroy, all Confidential Information of Disclosing Party and all documents, media, and other tangible materials\ncontaining any such Confidential Information and any and all extracts thereof. In the event that Receiving Party destroys Confidential\nInformation, upon the destruction thereof, Receiving Party will issue to Disclosing Party a certificate as proof of compliance with Disclosing\nParty's request. Notwithstanding this Section 4(f), the Receiving Party shall not be required to purge Confidential Information from its computer\nsystem's historical back-up media, provided that such Confidential Information that is retained will remain subject to the terms of this\nAgreement.\n(g) No Transfer or License. Nothing in this Agreement is intended to grant or transfer any right to Receiving Party under any patent,\ncopyright\nor\nother\nintellectual\nproperty\nright\nof\nDisclosing\nParty,\nnor\nshall\nthis\nAgreement\ngrant\nor\ntransfer\nto\nthe\nReceiving\nParty\nany\nright\nin\nor\nto the Confidential Information except as expressly set forth herein. None of the Confidential Information which may be disclosed by Disclosing\nParty shall constitute any representation, warranty, assurance, guarantee or inducement by Disclosing Party to Receiving Party, including,\nwithout limitation, with respect to the non-infringement of intellectual property rights, or other rights of third persons.\n(h) Both parties hereby acknowledges that in its review the other party's Confidential Information it and its representatives will have access\nto material non-public information concerning this other party. Each Party acknowledges, that it and its representatives are aware, that the United\nStates or other applicable securities laws prohibit any person, who has received from an issuer material non-public information relating to\nan\nissuer of securities, from\nLOGO\npurchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n5. Miscellaneous.\n(a) Use of Names; Publicity.. Except as otherwise provided herein, nothing contained in this Agreement shall be construed as conferring\nany right on Receiving Party to use in any manner Disclosing Party's name or any trade name or trademark. Receiving Party will make no public\nannouncement or other public statement concerning the existence of this Agreement or the Parties' respective performances hereunder without\nthe prior written consent of Disclosing Party, which may be withheld in Disclosing Party's sole and absolute discretion, except as necessary to\ncomply with applicable law or regulations.\n(b) Assignment. Receiving Party shall not transfer or assign any rights or obligations under this Agreement without the prior written\nconsent of Disclosing Party, which consent may be given or withheld in Disclosing Party's sole and absolute discretion.\n(c) Severability.. If any provision of this Agreement should be held invalid or unenforceable, the remaining provisions shall be unaffected\nand shall remain in full force and effect, to the extent consistent with the intent of the parties as evidenced by this Agreement as a whole.\n(d) Waivers. All waivers must be in writing and signed by the Party to be charged. Any waiver or failure to enforce any provision of this\nAgreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.\n(e) Notices All notices or reports permitted or required under this Agreement will be in writing and will be sent by personal delivery or\nreputable expedited delivery service with signature required. All such notices or reports will be deemed given upon receipt. Notices will be sent\nto the addresses set forth at the beginning of this Agreement, in this section, or such other addresses as either Party may specify in writing.\n(f) Governing Law: Jurisdiction. This Agreement is made under and shall be construed according to the laws of the State of California\nwithout\nregard\nto\nany\nconflict\nof\nlaw\nprinciples\nthat\nwould\nprovide\nfor\nthe\napplication\nof\nthe\nlaw\nof\nanother\njurisdiction.\nAny\ndisputes\nunder\nthis\nAgreement may be brought in the state courts and the Federal courts located in the Northern District of California, and the parties hereby consent\nto the personal jurisdiction and exclusive venue of these courts.\n(g) Injunctive Relief. Receiving Party agrees that disclosure of Confidential Information without the express written permission of\nDisclosing Party will cause Disclosing Party irreparable harm and that any breach or threatened breach of this Agreement by Receiving Party\nwill entitle Disclosing Party to injunctive relief, in addition to any other legal and/or equitable remedies available to it. Notwithstanding clause\n(f), Disclosing Party may seek injunctive relief in any court of competent jurisdiction.\nLOGO\n(h) Independence. The Parties do not intend that any agency or partnership relationship be created between them by this Agreement.\n(i) Entire Agreement; Amendment. This Agreement constitutes the final, complete and exclusive agreement of the Parties with respect to\nthe subject matter hereof and supersedes all prior and contemporaneous agreements, communications, negotiations or understandings between\nthe Parties with respect to the matters addressed herein. No modification of or amendment to this Agreement will be effective unless in writing\nand signed by all Parties.\n(j) Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or .pdf), each of which shall\nconstitute an original and all of which, when taken together, shall constitute one agreement.\nIN WITNESS WHEREOF, the Parties have caused this Non-Disclosure Agreement to be executed as of the Effective Date.\nPROSENSA HOLDING N.V.\nBIOMARIN PHARMACEUTICAL INC.\nLOGO\nBy:\n/s/ Luc Dochez\nBy:\n/s/ Joshua Grass\nName: Luc Dochez\nName: Joshua Grass\nTitle: Chief Business Officer\nTitle: SVP, Business and Corporate Development	EX-99.(E)(3) 3 d832000dex99e3.htm EX-99.(E)(3)\nExhibit (e)(3)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Mutual Non-Disclosure Agreement (the “Agreement”), effective July 31, 2014 (the “Effective Date”), is by and between BioMarin\nPharmaceutical Inc., a Delaware corporation, with offices at 105 Digital Drive, Novato, CA 94949 (“BioMarin”), and Prosensa Holding N.V., a\nNetherlands corporation with offices at J.H. Oortweg 21, 2333 CH, Leiden, The Netherlands. (“Prosensa”). Each of BioMarin and Prosensa may\nbe referred to herein as a “Party” or collectively as the “Parties.”\nWHEREAS, the Parties, for their mutual benefit, desire to disclose certain confidential information to one another in order to evaluate a\npotential business or collaborative relationship. (In the capacity of disclosing information, each Party is referred to as the “Disclosing Party”,\nand in the capacity of receiving information, each party is referred to as the “Receiving Party”.)\nNOW, THEREFORE, in consideration of the premises and covenants contained herein, the Parties agree as follows:\n1. Purpose. The Parties have entered into this Agreement to facilitate the transfer of information between them and/or one or more of their\nAffiliates in order for the Parties to evaluate whether or not to pursue a potential business opportunity or collaboration with respect to the\ndevelopment and commercialization of Prosensa’s products including, but not limited to, Drisapersen (the “Purpose”), and solely for that\nPurpose, the Parties have disclosed or may disclose to each other information that is proprietary and/or confidential to the Disclosing Party which\nit desires be treated as confidential. For purposes of this Agreement, with respect to a Party, “Affiliate” shall mean a company controlled by,\nunder the control of, or in common control with such Party.\n2. Confidential Information. As used herein, “Confidential Information” shall mean any and all technical and non-technical information\npreviously, presently, or subsequently disclosed or provided by Disclosing Party and/or one or more of its Affiliates to Receiving Party and/or\none or more of its Affiliates in written, oral or electronic form. Confidential Information will be deemed to include, without limitation:\n(a) any technology, inventions, products, chemical compounds and compositions, formulations, molecules, precursors, methods, concepts,\nideas, plans, processes, specifications, characteristics, techniques, know-how and assays; clinical information such as raw data, scientific\npreclinical or clinical data, observations, records, databases, dosing regimes, clinical studies or protocols, posters, presentations and abstracts,\nproduct pipelines, timelines and schedules; business information such as development, marketing, sales, pricing and commercialization plans,\nforecasts, proposals, customer lists, suppliers, consulting relationships, operating, performance and cost structures, and any other non-public\ninformation or other trade secrets, whether scientific, clinical or financial in nature, relating directly or indirectly to the business of the Disclosing\nParty; and\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been\nprepared by or for the Receiving Party and that contains, reflects, interprets or is based directly or indirectly upon any information of the type\nreferred to in Section 2(a) above;\nLOGO\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in Section 2(a) above has been made\navailable to the Receiving Party; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\n3. Term. The term of this Agreement commences on the Effective Date and ends on the date one (1) year thereafter. Receiving Party’s obligations\nto protect Confidential Information disclosed under this Agreement shall survive termination of this Agreement and will be binding upon\nReceiving Party, its heirs, successors, and assigns for a period of five (5) years from expiration or termination of this Agreement.\n4. Treatment of Confidential Information.\n(a) Use; Disclosure. Receiving Party shall use the Confidential Information solely for the Purpose defined above. Receiving Party shall not\nuse the Confidential Information for any other purpose, including but not limited to using it in connection with the development or\ncommercialization of any process or product, or using it in connection with any submission to any governmental agency, including any patent\noffice or regulatory authority, or the like, without the express written permission of Disclosing Party. Receiving Party shall disseminate\nConfidential Information only to those employees, independent contractors, advisors, or Affiliates, on a “need to know” basis in order for\nReceiving Party to carry out the Purpose, and Receiving Party warrants that all such employees, independent contractors, advisors, or Affiliates\nshall be advised of the confidential nature of the information received and that all such employees, independent contractors, advisors, Affiliates\nshall be bound in writing by obligations no less stringent than the terms set forth in this Agreement. Receiving Party agrees to notify Disclosing\nParty immediately in writing upon any loss, misuse, misappropriation, or other unauthorized disclosure of the Confidential Information of\nDisclosing Party that may come to Receiving Party’s attention.\n(b) Degree of Care. Receiving Party shall hold the Confidential Information in strict confidence, and shall take all reasonable precautions\nto protect the Confidential Information at all times from unauthorized disclosure, publication, or use, including, without limitation, using at least\nthe same degree of care as it employs to protect its own Confidential Information of like nature (but in any event no less than a reasonable degree\nof care), acting in a manner consistent with its obligations under this Agreement.\n(c) Exclusions. The confidentiality, non-disclosure and non-use obligations of this Agreement shall not apply to Confidential Information\ndisclosed to the Receiving Party that: (i) can be shown by written evidence to be in the Receiving Party’s possession before receipt of the\nConfidential Information from Disclosing Party; (ii) is independently developed by Receiving Party without the use of the Confidential\nInformation as evidenced by written records; (iii) is or becomes publicly available through no fault of the Receiving Party; or (iv) is rightfully\nreceived by the Receiving Party on a non-confidential basis from a third party without breach of a duty of\nLOGO\nconfidentiality to Disclosing Party. As used herein, the term “publicly available” shall mean readily accessible to the public in a written\npublication, and shall not mean information the substance of which must be pieced together from a number of different publications or other\nsources.\n(d) Legally Required Disclosures. Nothing in this Agreement shall preclude Receiving Party from making any disclosure of Confidential\nInformation that is required by applicable law or regulation or by a valid order of a court or other governmental body having jurisdiction,\nprovided that Receiving Party uses best efforts to limit the scope of the required disclosure, provides notification to Disclosing Party of such\nrequirement as soon as reasonably possible, and cooperates with Disclosing Party in seeking an appropriate protective order, confidential\ntreatment, or similar remedy limiting the subsequent use and disclosure of any information required to be disclosed.\n(e) No Obligation to Proceed. Nothing herein shall obligate either Party to proceed with any transaction between them, and each Party\nreserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement. This Agreement does not constitute a\nbinding agreement to enter into any definitive agreement. Receiving Party understands that nothing herein requires the disclosure of any\nConfidential Information by Disclosing Party, which shall be disclosed, if at all, at the discretion of Disclosing Party.\n(f) Return of Materials. Immediately upon (a) termination or expiration of this Agreement, (b) the decision by either Party not to enter into\nthe business or scientific relationship contemplated above, or (c) a request by Disclosing Party at any time, Receiving Party will promptly turn\nover to Disclosing Party, or destroy, all Confidential Information of Disclosing Party and all documents, media, and other tangible materials\ncontaining any such Confidential Information and any and all extracts thereof. In the event that Receiving Party destroys Confidential\nInformation, upon the destruction thereof, Receiving Party will issue to Disclosing Party a certificate as proof of compliance with Disclosing\nParty’s request. Notwithstanding this Section 4(f), the Receiving Party shall not be required to purge Confidential Information from its computer\nsystem’s historical back-up media, provided that such Confidential Information that is retained will remain subject to the terms of this\nAgreement.\n(g) No Transfer or License. Nothing in this Agreement is intended to grant or transfer any right to Receiving Party under any patent,\ncopyright or other intellectual property right of Disclosing Party, nor shall this Agreement grant or transfer to the Receiving Party any right in or\nto the Confidential Information except as expressly set forth herein. None of the Confidential Information which may be disclosed by Disclosing\nParty shall constitute any representation, warranty, assurance, guarantee or inducement by Disclosing Party to Receiving Party, including,\nwithout limitation, with respect to the non-infringement of intellectual property rights, or other rights of third persons.\n(h) Both parties hereby acknowledges that in its review the other party’s Confidential Information it and its representatives will have access\nto material non-public information concerning this other party. Each Party acknowledges, that it and its representatives are aware, that the United\nStates or other applicable securities laws prohibit any person, who has received from an issuer material non-public information relating to an\nissuer of securities, from\nLOGO\npurchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is\nreasonably foreseeable that such person is likely to purchase or sell such securities.\n5. Miscellaneous.\n(a) Use of Names; Publicity. Except as otherwise provided herein, nothing contained in this Agreement shall be construed as conferring\nany right on Receiving Party to use in any manner Disclosing Party’s name or any trade name or trademark. Receiving Party will make no public\nannouncement or other public statement concerning the existence of this Agreement or the Parties’ respective performances hereunder without\nthe prior written consent of Disclosing Party, which may be withheld in Disclosing Party’s sole and absolute discretion, except as necessary to\ncomply with applicable law or regulations.\n(b) Assignment. Receiving Party shall not transfer or assign any rights or obligations under this Agreement without the prior written\nconsent of Disclosing Party, which consent may be given or withheld in Disclosing Party’s sole and absolute discretion.\n(c) Severability. If any provision of this Agreement should be held invalid or unenforceable, the remaining provisions shall be unaffected\nand shall remain in full force and effect, to the extent consistent with the intent of the parties as evidenced by this Agreement as a whole.\n(d) Waivers. All waivers must be in writing and signed by the Party to be charged. Any waiver or failure to enforce any provision of this\nAgreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.\n(e) Notices. All notices or reports permitted or required under this Agreement will be in writing and will be sent by personal delivery or\nreputable expedited delivery service with signature required. All such notices or reports will be deemed given upon receipt. Notices will be sent\nto the addresses set forth at the beginning of this Agreement, in this section, or such other addresses as either Party may specify in writing.\n(f) Governing Law: Jurisdiction. This Agreement is made under and shall be construed according to the laws of the State of California\nwithout regard to any conflict of law principles that would provide for the application of the law of another jurisdiction. Any disputes under this\nAgreement may be brought in the state courts and the Federal courts located in the Northern District of California, and the parties hereby consent\nto the personal jurisdiction and exclusive venue of these courts.\n(g) Injunctive Relief. Receiving Party agrees that disclosure of Confidential Information without the express written permission of\nDisclosing Party will cause Disclosing Party irreparable harm and that any breach or threatened breach of this Agreement by Receiving Party\nwill entitle Disclosing Party to injunctive relief, in addition to any other legal and/or equitable remedies available to it. Notwithstanding clause\n(f), Disclosing Party may seek injunctive relief in any court of competent jurisdiction.\nLOGO\n(h) Independence. The Parties do not intend that any agency or partnership relationship be created between them by this Agreement.\n(i) Entire Agreement; Amendment. This Agreement constitutes the final, complete and exclusive agreement of the Parties with respect to\nthe subject matter hereof and supersedes all prior and contemporaneous agreements, communications, negotiations or understandings between\nthe Parties with respect to the matters addressed herein. No modification of or amendment to this Agreement will be effective unless in writing\nand signed by all Parties.\n(j) Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile or .pdf), each of which shall\nconstitute an original and all of which, when taken together, shall constitute one agreement.\nIN WITNESS WHEREOF, the Parties have caused this Non-Disclosure Agreement to be executed as of the Effective Date.\nPROSENSA HOLDING N.V.\nBIOMARIN PHARMACEUTICAL INC.\nLOGO\nBy: /s/ Luc Dochez\nBy: /s/ Joshua Grass\nName: Luc Dochez\nName: Joshua Grass\nTitle: Chief Business Officer\nTitle: SVP, Business and Corporate Development
+d022d8bf8c1c63e1e018ce081404b552.pdf	effective_date jurisdiction party term	EX-2.28 17 dex228.htm MASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nExhibit 2.28\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nbetween\nPALM, INC.\nand\nPALMSOURCE, INC.\nEffective as of December 3, 2001\nTABLE OF CONTENTS\nPage\nARTICLE 1 DEFINITIONS\n1\n1.1\nANCILLARY AGREEMENTS\n1\n1.2\nBUSINESS SERVICES AGREEMENT\n1\n1.3\nCONFIDENTIAL INFORMATION\n1\n1.4\nCONFIDENTIALITY PERIOD\n2\n1.5\nDISCLOSING PARTY\n2\n1.6\nHIGHLY CONFIDENTIAL INFORMATION\n2\n1.7\nMASTER SEPARATION AGREEMENT\n2\n1.8\nPERSON\n3\n1.9\nRECEIVING PARTY\n3\n1.10\nSEPARATION DATE\n3\n1.11\nSUBSIDIARY\n3\n1.12\nTHIRD PARTY\n3\n1.13\nTRANSACTION AGREEMENTS\n3\nARTICLE 2 CONFIDENTIALITY\n3\n2.1\nCONFIDENTIALITY AND NON-USE OBLIGATIONS\n3\n2.2\nDISCLOSURE TO SUBLICENSEES\n4\n2.3\nCONTRACT MANUFACTURERS\n4\n2.4\nRESIDUALS\n4\n2.5\nCOMPELLED DISCLOSURE\n4\n2.6\nNO RESTRICTION ON DISCLOSING PARTY\n4\n2.7\nNO RESTRICTION ON REASSIGNMENT\n4\n2.8\nTHIRD PARTY RESTRICTIONS\n4\nARTICLE 3 WARRANTY DISCLAIMER\n5\nARTICLE 4 CONFIDENTIALITY OF AGREEMENT\n5\nARTICLE 5 TERM AND TERMINATION\n5\n5.1\nTERM\n5\n5.2\nSURVIVAL\n6\nARTICLE 6 DISPUTE RESOLUTION\n6\n6.1\nMEDIATION\n6\n6.2\nARBITRATION\n6\n6.3\nCOURT ACTION\n6\n6.4\nCONTINUITY OF SERVICE AND PERFORMANCE\n7\n6.5\nRESOLUTION BY PALMSOURCE COMMITTEE\n7\n-i-\nTABLE OF CONTENTS\n(Continued)\nPage\nARTICLE 7 MISCELLANEOUS PROVISIONS\n7\n7.1\nEXPORT RESTRICTIONS\n7\n7.2\nNO IMPLIED LICENSES\n7\n7.3\nINFRINGEMENT SUITS\n7\n7.4\nNO OTHER OBLIGATIONS\n8\n7.5\nENTIRE AGREEMENT\n8\n7.6\nGOVERNING LAW\n8\n7.7\nDESCRIPTIVE HEADINGS\n8\n7.8\nNOTICES\n8\n7.9\nNONASSIGNABILITY\n9\n7.10\nSEVERABILITY\n9\n7.11\nFAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE\n9\n7.12\nAMENDMENT\n9\n7.13\nCOUNTERPARTS\n9\n- ii-\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nThis Master Confidential Disclosure Agreement (the “Agreement”) is executed on May 9, 2002 and made effective as of December 3, 2001\n(the “Effective Date”), between Palm, Inc., a Delaware corporation (“Palm”), having an office at 5470 Great America Parkway, Santa Clara,\nCalifornia, 95054 and PalmSource, Inc., a Delaware corporation (“PalmSource”), having an office at 5470 Great America Parkway, Santa Clara,\nCalifornia, 95054.\nRECITALS\nWHEREAS, the Board of Directors of Palm has determined that it is in the best interest of Palm and its stockholders to separate Palm’s\nexisting businesses into two independent businesses and have the current business of the Palm platform solutions group conducted through a wholly-\nowned subsidiary;\nWHEREAS, as part of the foregoing, Palm and have entered into a Master Separation Agreement (as defined below), which provides for,\namong other things, the execution and delivery of certain other agreements in order to facilitate and provide for the foregoing; and\nWHEREAS, also as part of the foregoing, the parties further desire to enter into this Agreement to provide for the protection of their\nConfidential Information (as defined below).\nNOW, THEREFORE, in consideration of the mutual promises of the parties, and of good and valuable consideration, it is agreed by and\nbetween the parties as follows:\nARTICLE 1\nDEFINITIONS\nFor the purpose of this Agreement the following capitalized terms are defined in this Article 1 and shall have the meaning specified herein:\n1.1 ANCILLARY AGREEMENTS . “Ancillary Agreements” means the items and agreements listed in Section 2.1 of the Master Separation\nAgreement and all agreements and documents contemplated by such agreements.\n1.2 BUSINESS SERVICES AGREEMENT. “Business Services Agreement” means that certain Business Services Agreement between Palm\nand PalmSource.\n1.3 CONFIDENTIAL INFORMATION\n(a) “Confidential Information” means business information, technical data, know-how and other information which is not otherwise in\nthe public domain and of which the owner actively undertakes to restrict or control the disclosure to Third Parties in a manner reasonably\nintended to maintain its confidentiality, and which (i) is the subject of any Transaction Agreement and known to or in the possession of the\nReceiving Party as of the Separation Date or (ii) is disclosed to the Receiving Party pursuant to any Transaction Agreement for a period of one (1)\nyear after the Effective Date or such term during which services are provided under the Business Services Agreement, whichever is longer.\nConfidential Information may include information relating to, by way of example, research, products, services, customers, markets, software,\ndevelopments, inventions, processes, designs, drawings, engineering, marketing or finances, and may be in writing, disclosed orally or learned by\ninspection of computer programming code, equipment or facilities.\n(b) Confidential Information of Third Parties that is known to, in the possession of or acquired by a Receiving Party pursuant to a\nrelationship with the Disclosing Party shall be deemed the Disclosing Party’s Confidential Information for purposes herein.\n(c) Notwithstanding the foregoing provisions of this Section 1.2, Confidential Information shall exclude information that: (i) was in the\nReceiving Party’s possession before receipt from the Disclosing Party and obtained from a source other than the Disclosing Party and other than\nthrough the prior relationship of the Disclosing Party and the Receiving Party before the Separation Date; (ii) is or becomes a matter of public\nknowledge through no fault of the Receiving Party; (iii) is rightfully received by the Receiving Party from a Third Party without a duty of\nconfidentiality; (iv) is disclosed by the Disclosing Party to a Third Party without a duty of confidentiality on the Third Party; (v) is independently\ndeveloped by the Receiving Party; or (vi) is disclosed by the Receiving Party with the Disclosing Party’s prior written approval.\n1.4 CONFIDENTIALITY PERIOD. “Confidentiality Period” means, (i) with respect to Confidential Information that is not Highly\nConfidential Information, five (5) years, and (ii) with respect to Highly Confidential Information, in perpetuity, after either (A) the Separation Date\nwith respect to Confidential Information of the Disclosing Party that is known to or in the possession of the Receiving Party as of the Separation\nDate or (B) the date of disclosure with respect to Confidential Information that is disclosed by the Disclosing Party to the Receiving Party after the\nSeparation Date.\n1.5 DISCLOSING PARTY. “Disclosing Party” means the party owning or disclosing the relevant Confidential Information.\n1.6 HIGHLY CONFIDENTIAL INFORMATION . “Highly Confidential Information” means Confidential Information that is source code for\nproducts that are commercially released or for which substantial steps have been taken to commercialization, and personally identifiable information\nregarding customers and employees.\n1.7 MASTER SEPARATION AGREEMENT. “Master Separation Agreement” means that certain Master Separation Agreement between Palm\nand PalmSource.\n-2-\n1.8 PERSON. “Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a\ntrust, a joint venture, an unincorporated organization, and a governmental entity or any department, agency or political subdivision thereof.\n1.9 RECEIVING PARTY. “Receiving Party” means the non-owning party or recipient of the relevant Confidential Information.\n1.10 SEPARATION DATE . “Separation Date” means 12:01 a.m., Pacific Time, December 3, 2001, or such other date as may be fixed by the\nBoard of Directors of Palm.\n1.11 SUBSIDIARY. “Subsidiary” of any Person means a corporation or other organization, whether incorporated or unincorporated, of which\nat least a majority of the securities or interests having by the terms thereof ordinary voting power to elect at least a majority of the board of directors\nor others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such\nPerson or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries; provided, however, that no Person that is not\ndirectly or indirectly wholly-owned by any other Person shall be a Subsidiary of such other Person unless such other Person controls, or has the\nright, power or ability to control, that Person. For purposes of this Agreement, PalmSource shall be deemed not to be a subsidiary of Palm.\n1.12 THIRD PARTY. “Third Party” means a Person other than Palm and its Subsidiaries or PalmSource and its Subsidiaries.\n1.13 TRANSACTION AGREEMENTS . “Transaction Agreements” means the Master Separation Agreement and the Ancillary Agreements\nbetween Palm and PalmSource, but does not include the following agreements between Palm and PalmSource: Software License Agreement and\nElaine Software License Agreement, each effective as of December 3, 2001 and under which PalmSource licenses to Palm certain operating system\nand server software and related products.\nARTICLE 2\nCONFIDENTIALITY\n2.1 CONFIDENTIALITY AND NON -USE OBLIGATIONS . During the Confidentiality Period, the Receiving Party shall (i) protect the\nConfidential Information of the Disclosing Party by using the same degree of care, but no less than a reasonable degree of care, to prevent the\nunauthorized use, dissemination, or publication of the Confidential Information as Receiving Party uses to protect its own confidential information\nof a like nature, (ii) not use such Confidential Information in violation of any use restriction in any Transaction Agreement, and (iii) not disclose\nsuch Confidential Information to any Third Party, except as expressly permitted under this Agreement, in the Transaction Agreements or in any other\nagreements entered into between the parties in writing, without prior written consent of the Disclosing Party.\n-3-\n2.2 DISCLOSURE TO SUBLICENSEES . The Receiving Party has the right to disclose to its sublicensees permitted under a Transaction\nAgreement portions of Confidential Information as reasonably necessary in the exercise of the Receiving Party’s sublicense rights under such\nTransaction Agreement, subject to the sublicensee’s agreement in writing to confidentiality and non-use terms at least as protective of the Disclosing\nParty as the provisions of this Agreement.\n2.3 CONTRACT MANUFACTURERS . The Receiving Party has the right to disclose to its contract manufacturers permitted under any\nTransaction Agreement portions of the Confidential Information as reasonably necessary in the exercise of the Receiving Party’s “have made” rights\nunder any Transaction Agreement, subject to the contract manufacturer ’s agreement in writing to confidentiality and non-use terms at least as\nprotective of the Disclosing Party as the provisions of this Agreement.\n2.4 RESIDUALS. Notwithstanding any other provision of this Agreement, the Receiving Party shall be free, and the Disclosing Party hereby\ngrants to the Receiving Party, except as otherwise provided in this Section 2.4, the right, to use or exploit for any purpose the Residuals resulting\nfrom access to or work with the Confidential Information of the Disclosing Party; provided however that the Receiving Party shall maintain the\nconfidentiality of the Confidential Information as required by this Agreement. “Residuals” means information retained in the unaided memories of\nindividuals who have had access to Confidential Information. The Receiving Party shall have no obligation to pay royalties for any use of Residuals.\nHowever, this Section 2.4 does not grant the Receiving Party any rights under any patents or copyrights of the Disclosing Party.\n2.5 COMPELLED DISCLOSURE . If the Receiving Party or any of its respective Subsidiaries believes that it will be compelled by a court or\nother authority to disclose Confidential Information of the Disclosing Party, it shall (i) give the Disclosing Party prompt written notice so that the\nDisclosing Party may take steps to oppose such disclosure, and (ii) cooperate with the Disclosing Party in its attempts to oppose such disclosure. If\nthe Receiving Party complies with the above, it shall not be prohibited from complying with such requirement to disclose, but shall take all\nreasonable steps to make such disclosure subject to a suitable protective order or otherwise prevent unrestricted or public disclosure.\n2.6 NO RESTRICTION ON DISCLOSING PARTY. Nothing in this Agreement shall restrict the Disclosing Party from using, disclosing, or\ndisseminating its own Confidential Information in any way.\n2.7 NO RESTRICTION ON REASSIGNMENT. This Agreement shall not restrict reassignment of the Receiving Party’s employees.\n2.8 THIRD PARTY RESTRICTIONS . Nothing in the Agreement supersedes any restriction imposed by Third Parties on their Confidential\nInformation, and there is no obligation on the Disclosing Party to conform Third Party agreements to the terms of this Agreement.\n-4-\nARTICLE 3\nWARRANTY DISCLAIMER\nEACH PARTY ACKNOWLEDGES AND AGREES THAT ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN “AS IS,\nWHERE IS” BASIS AND THAT NEITHER PARTY NOR ANY OF ITS SUBSIDIARIES HAS MADE OR WILL MAKE ANY WARRANTY\nWHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF\nMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ENFORCEABILITY OR NON-INFRINGEMENT.\nARTICLE 4\nCONFIDENTIALITY OF AGREEMENT\nEach party agrees that the terms and conditions of the Transaction Agreements marked as confidential shall be treated as Confidential\nInformation and that neither party will disclose such terms or conditions to any Third Party without the prior written consent of the other party,\nprovided, however, that each party may disclose such terms and conditions of such agreements marked as confidential:\n(a) as required by any court or other governmental body (subject to Section 2.5);\n(b) as otherwise required by law (subject to Section 2.5);\n(c) in confidence, to legal counsel of the parties, accountants, and other professional advisors;\n(d) in confidence to banks, investors and other financing sources and their advisors;\n(e) in connection with the enforcement of this Agreement or rights under this Agreement; or\n(f) in confidence, in connection with an actual or prospective merger or acquisition or similar transaction.\nARTICLE 5\nTERM AND TERMINATION\n5.1 TERM . This Agreement shall remain in full force and effect unless and until terminated by the mutual written agreement of the parties.\n-5-\n5.2 SURVIVAL . Articles 1, 2 (with respect to Confidential Information acquired or disclosed prior to the date of termination), 3, 4, 5.2, 6, and\n7 shall survive any termination of this Agreement.\nARTICLE 6\nDISPUTE RESOLUTION\n6.1 MEDIATION. If a dispute, controversy or claim (“Dispute”) arises between the parties relating to the interpretation or performance of this\nAgreement or the grounds for the termination hereof, appropriate senior executives (e.g . director or vice president level) of each party who shall\nhave the authority to resolve the matter shall meet to attempt in good faith to negotiate a resolution of the Dispute prior to pursuing other available\nremedies. The initial meeting between the appropriate senior executives shall be referred to herein as the “Dispute Resolution Commencement\nDate.” Discussions and correspondence relating to trying to resolve such Dispute shall be treated as confidential information developed for the\npurpose of settlement and shall be exempt from discovery or production and shall not be admissible. If the senior executives are unable to resolve the\nDispute within thirty (30) days from the Dispute Resolution Commencement Date, and either party wishes to pursue its rights relating to such\nDispute, then the Dispute will be mediated by a mutually acceptable mediator appointed pursuant to the mediation rules of JAMS/Endispute within\nthirty (30) days after written notice by one party to the other demanding non-binding mediation. Neither party may unreasonably withhold consent to\nthe selection of a mediator or the location of the mediation. Both parties will share the costs of the mediation equally, except that each party shall\nbear its own costs and expenses, including attorney’s fees, witness fees, travel expenses, and preparation costs. The parties may also agree to replace\nmediation with some other form of non-binding or binding Alternative Dispute Resolution (“ADR”).\n6.2 ARBITRATION . Any Dispute which the parties cannot resolve through mediation within ninety (90) days of the Dispute Resolution\nCommencement Date, unless otherwise mutually agreed, shall be submitted to final and binding arbitration under the then current Commercial\nArbitration Rules of the American Arbitration Association (“AAA”), by three (3) arbitrators in Santa Clara County, California. Such arbitrators shall\nbe selected by the mutual agreement of the parties or, failing such agreement, shall be selected according to the aforesaid AAA rules. The arbitrators\nwill be instructed to prepare and deliver a written, reasoned opinion stating their decision within thirty (30) days of the completion of the arbitration.\nThe prevailing party in such arbitration shall be entitled to expenses, including costs and reasonable attorneys’ and other professional fees, incurred\nin connection with the arbitration (but excluding any costs and fees associated with prior negotiation or mediation). The decision of the arbitrator\nshall be final and non-appealable and may be enforced in any court of competent jurisdiction. The use of any ADR procedures will not be construed\nunder the doctrine of laches, waiver or estoppel to adversely affect the rights of either party.\n6.3 COURT ACTION . Any Dispute regarding the following is not required to be negotiated, mediated or arbitrated prior to seeking relief from\na court of competent jurisdiction:\n-6-\nbreach of any obligation of confidentiality; infringement, misappropriation, or misuse of any intellectual property right; any other claim where\ninterim relief from the court is sought to prevent serious and irreparable injury to one of the parties or to others. However, the parties to the Dispute\nshall make a good faith effort to negotiate and mediate such Dispute, according to the above procedures, while such court action is pending.\n6.4 CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise agreed in writing, the parties will continue to provide service and\nhonor all other commitments under this Agreement and each Ancillary Agreement during the course of dispute resolution pursuant to the provisions\nof this Article 6 with respect to all matters not subject to such dispute, controversy or claim.\n6.5 RESOLUTION BY PALMSOURCE COMMITTEE . Notwithstanding the foregoing, while PalmSource remains a wholly-owned\nsubsidiary (excluding shares issued pursuant to PalmSource equity plans to officers, directors, employees and consultants of PalmSource), if,\npursuant to Section 6.1, the senior executives are unable to resolve the Dispute within thirty (30) days from the Dispute Resolution Commencement\nDate, and either party wishes to pursue its rights relating to such Dispute, then in lieu of mediation or subsequent remedy contemplated by Section\n6.2-6.3, the Dispute will be submitted to the PalmSource Committee for resolution (which committee shall consist of the CEO of Palm, the CEO of\nPalmSource and the Chairman of the Board of Palm, or such other composition as is mutually acceptable to Palm and PalmSource).\nARTICLE 7\nMISCELLANEOUS PROVISIONS\n7.1 EXPORT RESTRICTIONS. Both parties shall adhere to all applicable laws, regulations and rules relating to the export of technical data,\nand shall not export or reexport any technical data, any products received from Disclosing Party, or the direct product of such technical data, to any\nproscribed country listed in such applicable laws, regulations and rules unless properly authorized.\n7.2 NO IMPLIED LICENSES. Nothing contained in this Agreement shall be construed as conferring any rights by implication, estoppel or\notherwise, under any intellectual property right, other than the rights expressly granted in this Agreement with respect to Confidential Information.\nNeither party is required hereunder to furnish or disclose to the other any technical or other information.\n7.3 INFRINGEMENT SUITS . Neither party shall have any obligation hereunder to institute any action or suit against Third Parties for\nmisappropriation of any of its Confidential Information or to defend any action or suit brought by a Third Party that alleges infringement of any\nintellectual property rights by the Receiving Party’s authorized use of the Disclosing Party’s Confidential Information.\n-7-\n7.4 NO OTHER OBLIGATIONS . NEITHER PARTY ASSUMES ANY RESPONSIBILITIES OR OBLIGATIONS WHATSOEVER, OTHER\nTHAN THE RESPONSIBILITIES AND OBLIGATIONS EXPRESSLY SET FORTH IN THIS AGREEMENT OR A SEPARATE WRITTEN\nAGREEMENT BETWEEN THE PARTIES.\n7.5 ENTIRE AGREEMENT. This Agreement, the Master Separation Agreement and the other Ancillary Agreements and the Exhibits and\nSchedules referenced or attached hereto and thereto constitute the entire agreement between the parties with respect to the subject matter hereof and\nthereof and shall supersede all prior written and oral and all contemporaneous oral agreements and understandings with respect to the subject matter\nhereof and thereof. Notwithstanding the foregoing, the parties agree that any agreements entered into between them after the Separation Date for the\nprotection of specific Confidential Information shall supersede the terms of this Agreement with respect to such Confidential Information.\n7.6 GOVERNING LAW. This Agreement shall be construed in accordance with and all Disputes hereunder shall be governed by the laws of\nthe State of California, excluding its conflict of law rules and the United Nations Convention on Contracts for the International Sale of Goods. The\nSuperior Court of Santa Clara County and/or the United States District Court for the Northern District of California shall have jurisdiction and venue\nover all Disputes between the parties that are permitted to be brought in a court of law pursuant to Section 6 above.\n7.7 DESCRIPTIVE HEADINGS. The headings contained in this Agreement, in any Exhibit hereto and in the table of contents to this\nAgreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any capitalized term\nused in any Exhibit but not otherwise defined therein, shall have the meaning assigned to such term in this Agreement. When a reference is made in\nthis Agreement to an Article or a Section or an Exhibit, such reference shall be to an Article or Section of, or an Exhibit to, this Agreement unless\notherwise indicated.\n7.8 NOTICES. Notices, offers, requests or other communications required or permitted to be given by either party pursuant to the terms of this\nAgreement shall be given in writing to the respective parties to the following addresses:\niftoPalm:\nPalm, Inc.\n5470 Great America Parkway\nSanta Clara, California 95054\nAttention: General Counsel\nif to PalmSource:\nPalmSource, Inc.\n5470 Great America Parkway\nSanta Clara, California 95054\nAttention: Chief Executive Officer\n-8-\nor to such other address as the party to whom notice is given may have previously furnished to the other in writing as provided herein. Any notice\ninvolving non-performance, termination, or renewal shall be sent by hand delivery, recognized overnight courier or, within the United States, may\nalso be sent via certified mail, return receipt requested. All other notices may also be sent by fax, confirmed by first class mail. All notices shall be\ndeemed to have been given and received on the earlier of actual delivery or three (3) days from the date of postmark.\n7.9 NONASSIGNABILITY. Neither party may, directly or indirectly, in whole or in part, whether by operation of law or otherwise, assign or\ntransfer this Agreement, without the other party’s prior written consent, and any attempted assignment, transfer or delegation without such prior\nwritten consent shall be voidable at the sole option of such other party. Notwithstanding the foregoing, each party (or its permitted successive\nassignees or transferees hereunder) may assign or transfer this Agreement as a whole without consent to a Person that succeeds to all or substantially\nall of the business or assets of such party as long as such Person agrees to accept all the terms and conditions set forth herein. Without limiting the\nforegoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.\n7.10 SEVERABILITY. If any term or other provision of this Agreement or the Exhibits attached hereto is determined by a court,\nadministrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and\nprovisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions\ncontemplated hereby is not affected in any manner materially adverse to either party. Upon such determination that any term or other provision is\ninvalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original\nintent of the parties as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the fullest extent\npossible.\n7.11 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure or delay on the part of either party hereto in the\nexercise of any right hereunder shall impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation,\nwarranty or agreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right.\nAll rights and remedies existing under this Agreement or the Exhibits attached hereto are cumulative to, and not exclusive of, any rights or remedies\notherwise available.\n7.12 AMENDMENT. No change or amendment will be made to this Agreement or the Exhibits attached hereto except by an instrument in\nwriting signed on behalf of each of the parties to such agreement.\n7.13 COUNTERPARTS. This Agreement, including the Ancillary Agreements and the Exhibits and Schedules hereto and thereto and the other\ndocuments referred to herein or therein, may be executed in counterparts, each of which shall be deemed to be an original but all of which shall\nconstitute one and the same agreement.\n-9-\nWHEREFORE, the parties have signed this Master Confidential Disclosure Agreement effective as of the Effective Date.\nPALM, INC.\nPALMSOURCE, INC.\nBy:\n/s/ JUDY BRUNER\nBy:\n/s/ DAVID C. NAGEL\nName:\nJudy Bruner\nName:\nDavid Nagel\nTitle:\nChief Financial Officer\nTitle:\nChief Executive Officer\n- 10-	EX-2.28 17 dex228.htm MASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nExhibit 2.28\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nbetween\nPALM, INC.\nand\nPALMSOURCE, INC.\nEffective as of December 3, 2001\nTABLE OF CONTENTS\nARTICLE 1 DEFINITIONS 1.1\n1.2\n1.3\n1.4\n1.5\n1.6\n1.7\n1.8\n1.9\n1.10\n1.11\n1.12\n1.13\nANCILLARY AGREEMENTS\nBUSINESS SERVICES AGREEMENT\nCONFIDENTIAL INFORMATION\nCONFIDENTIALITY PERIOD\nDISCLOSING PARTY\nHIGHLY CONFIDENTIAL INFORMATION\nMASTER SEPARATION AGREEMENT\nPERSON\nRECEIVING PARTY\nSEPARATION DATE\nSUBSIDIARY\nTHIRD PARTY\nTRANSACTION AGREEMENTS\nARTICLE 2 CONFIDENTIALITY 2.1\n2.2\n2.3\n24\n2.5\n2.6\n2.7\n2.8\nCONFIDENTIALITY AND NON-USE OBLIGATIONS\nDISCLOSURE TO SUBLICENSEES\nCONTRACT MANUFACTURERS\nRESIDUALS\nCOMPELLED DISCLOSURE\nNO RESTRICTION ON DISCLOSING PARTY\nNO RESTRICTION ON REASSIGNMENT\nTHIRD PARTY RESTRICTIONS\nARTICLE 3 WARRANTY DISCLAIMER ARTICLE 4 CONFIDENTIALITY OF AGREEMENT ARTICLE 5 TERM AND TERMINATION 5.1\n5.2\nTERM\nSURVIVAL\nARTICLE 6 DISPUTE RESOLUTION 6.1\n6.2\n6.3\n6.4\n6.5\nMEDIATION\nARBITRATION\nCOURT ACTION\nCONTINUITY OF SERVICE AND PERFORMANCE\nRESOLUTION BY PALMSOURCE COMMITTEE\n-\n]\n&\no\n"\n \nArArArbrbbhrbhrw w W W WwWwWwWNNNNRRRER R\na U\nNN OO D\nTABLE OF CONTENTS\n(Continued)\nARTICLE 7 MISCELLANEOUS PROVISIONS 7.1\n7.2\n7.3\n7.4\n7.5\n7.6\n7.7\n7.8\n7.9\n7.10\n7.11\n7.12\n7.13\nEXPORT RESTRICTIONS\nNO IMPLIED LICENSES\nINFRINGEMENT SUITS\nNO OTHER OBLIGATIONS\nENTIRE AGREEMENT\nGOVERNING LAW\nDESCRIPTIVE HEADINGS\nNOTICES\nNONASSIGNABILITY\nSEVERABILITY\nFAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE\nAMENDMENT\nCOUNTERPARTS\n-ii-\n]\n&\no\n"\n \nO © O© © O 000000 NNIN\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nThis Master Confidential Disclosure Agreement (the “Agreement”) is executed on May 9, 2002 and made effective as of December 3, 2001\n(the “Effective Date”), between Palm, Inc., a Delaware corporation (“Palm”), having an office at 5470 Great America Parkway, Santa Clara,\nCalifornia, 95054 and PalmSource, Inc., a Delaware corporation (“PalmSource”), having an office at 5470 Great America Parkway, Santa Clara,\nCalifornia, 95054.\nRECITALS\nWHEREAS, the Board of Directors of Palm has determined that it is in the best interest of Palm and its stockholders to separate Palm’s\nexisting businesses into two independent businesses and have the current business of the Palm platform solutions group conducted through a wholly-\nowned subsidiary;\nWHEREAS, as part of the foregoing, Palm and have entered into a Master Separation Agreement (as defined below), which provides for,\namong other things, the execution and delivery of certain other agreements in order to facilitate and provide for the foregoing; and\nWHEREAS, also as part of the foregoing, the parties further desire to enter into this Agreement to provide for the protection of their\nConfidential Information (as defined below).\nNOW, THEREFORE, in consideration of the mutual promises of the parties, and of good and valuable consideration, it is agreed by and\nbetween the parties as follows:\nARTICLE 1\nDEFINITIONS\nFor the purpose of this Agreement the following capitalized terms are defined in this Article 1 and shall have the meaning specified herein:\n1.1 ANCILLARY AGREEMENTS. “Ancillary Agreements” means the items and agreements listed in Section 2.1 of the Master Separation\nAgreement and all agreements and documents contemplated by such agreements.\n1.2 BUSINESS SERVICES AGREEMENT. “Business Services Agreement” means that certain Business Services Agreement between Palm\nand PalmSource.\n1.3 CONFIDENTIAL INFORMATION\n(a) “Confidential Information” means business information, technical data, know-how and other information which is not otherwise in\nthe public domain and of which the owner actively undertakes to restrict or control the disclosure to Third Parties in a manner reasonably\nintended to maintain its confidentiality, and which (i) is the subject of any Transaction Agreement and known to or in the possession of the\nReceiving Party as of the Separation Date or (ii) is disclosed to the Receiving Party pursuant to any Transaction Agreement for a period of one (1)\nyear after the Effective Date or such term during which services are provided under the Business Services Agreement, whichever is longer.\nConfidential Information may include information relating to, by way of example, research, products, services, customers, markets, software,\ndevelopments, inventions, processes, designs, drawings, engineering, marketing or finances, and may be in writing, disclosed orally or learned by\ninspection of computer programming code, equipment or facilities.\n(b) Confidential Information of Third Parties that is known to, in the possession of or acquired by a Receiving Party pursuant to a\nrelationship with the Disclosing Party shall be deemed the Disclosing Party’s Confidential Information for purposes herein.\n(c) Notwithstanding the foregoing provisions of this Section 1.2, Confidential Information shall exclude information that: (i) was in the\nReceiving Party’s possession before receipt from the Disclosing Party and obtained from a source other than the Disclosing Party and other than\nthrough the prior relationship of the Disclosing Party and the Receiving Party before the Separation Date; (ii) is or becomes a matter of public\nknowledge through no fault of the Receiving Party; (iii) is rightfully received by the Receiving Party from a Third Party without a duty of\nconfidentiality; (iv) is disclosed by the Disclosing Party to a Third Party without a duty of confidentiality on the Third Party; (v) is independently\ndeveloped by the Receiving Party; or (vi) is disclosed by the Receiving Party with the Disclosing Party’s prior written approval.\n1.4 CONFIDENTIALITY PERIOD. “Confidentiality Period” means, (i) with respect to Confidential Information that is not Highly\nConfidential Information, five (5) years, and (ii) with respect to Highly Confidential Information, in perpetuity, after either (A) the Separation Date\nwith respect to Confidential Information of the Disclosing Party that is known to or in the possession of the Receiving Party as of the Separation\nDate or (B) the date of disclosure with respect to Confidential Information that is disclosed by the Disclosing Party to the Receiving Party after the\nSeparation Date.\n1.5 DISCLOSING PARTY. “Disclosing Party” means the party owning or disclosing the relevant Confidential Information.\n1.6 HIGHLY CONFIDENTIAL INFORMATION. “Highly Confidential Information” means Confidential Information that is source code for\nproducts that are commercially released or for which substantial steps have been taken to commercialization, and personally identifiable information\nregarding customers and employees.\n1.7 MASTER SEPARATION AGREEMENT. “Master Separation Agreement” means that certain Master Separation Agreement between Palm\nand PalmSource.\n-\n1.8 PERSON. “Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a\ntrust, a joint venture, an unincorporated organization, and a governmental entity or any department, agency or political subdivision thereof.\n1.9 RECEIVING PARTY. “Receiving Party” means the non-owning party or recipient of the relevant Confidential Information.\n1.10 SEPARATION DATE. “Separation Date” means 12:01 a.m., Pacific Time, December 3, 2001, or such other date as may be fixed by the\nBoard of Directors of Palm.\n1.11 SUBSIDIARY. “Subsidiary” of any Person means a corporation or other organization, whether incorporated or unincorporated, of which\nat least a majority of the securities or interests having by the terms thereof ordinary voting power to elect at least a majority of the board of directors\nor others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such\nPerson or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries; provided, however, that no Person that is not\ndirectly or indirectly wholly-owned by any other Person shall be a Subsidiary of such other Person unless such other Person controls, or has the\nright, power or ability to control, that Person. For purposes of this Agreement, PalmSource shall be deemed not to be a subsidiary of Palm.\n1.12 THIRD PARTY. “Third Party” means a Person other than Palm and its Subsidiaries or PalmSource and its Subsidiaries.\n1.13 TRANSACTION AGREEMENTS. “Transaction Agreements” means the Master Separation Agreement and the Ancillary Agreements\nbetween Palm and PalmSource, but does not include the following agreements between Palm and PalmSource: Software License Agreement and\nElaine Software License Agreement, each effective as of December 3, 2001 and under which PalmSource licenses to Palm certain operating system\nand server software and related products.\nARTICLE 2\nCONFIDENTIALITY\n2.1 CONFIDENTIALITY AND NON-USE OBLIGATIONS. During the Confidentiality Period, the Receiving Party shall (i) protect the\nConfidential Information of the Disclosing Party by using the same degree of care, but no less than a reasonable degree of care, to prevent the\nunauthorized use, dissemination, or publication of the Confidential Information as Receiving Party uses to protect its own confidential information\nof a like nature, (ii) not use such Confidential Information in violation of any use restriction in any Transaction Agreement, and (iii) not disclose\nsuch Confidential Information to any Third Party, except as expressly permitted under this Agreement, in the Transaction Agreements or in any other\nagreements entered into between the parties in writing, without prior written consent of the Disclosing Party.\n_3-\n2.2 DISCLOSURE TO SUBLICENSEES . The Receiving Party has the right to disclose to its sublicensees permitted under a Transaction\nAgreement portions of Confidential Information as reasonably necessary in the exercise of the Receiving Party’s sublicense rights under such\nTransaction Agreement, subject to the sublicensee’s agreement in writing to confidentiality and non-use terms at least as protective of the Disclosing\nParty as the provisions of this Agreement.\n2.3 CONTRACT MANUFACTURERS . The Receiving Party has the right to disclose to its contract manufacturers permitted under any\nTransaction Agreement portions of the Confidential Information as reasonably necessary in the exercise of the Receiving Party’s “have made” rights\nunder any Transaction Agreement, subject to the contract manufacturer’s agreement in writing to confidentiality and non-use terms at least as\nprotective of the Disclosing Party as the provisions of this Agreement.\n2.4 RESIDUALS. Notwithstanding any other provision of this Agreement, the Receiving Party shall be free, and the Disclosing Party hereby\ngrants to the Receiving Party, except as otherwise provided in this Section 2.4, the right, to use or exploit for any purpose the Residuals resulting\nfrom access to or work with the Confidential Information of the Disclosing Party; provided however that the Receiving Party shall maintain the\nconfidentiality of the Confidential Information as required by this Agreement. “Residuals” means information retained in the unaided memories of\nindividuals who have had access to Confidential Information. The Receiving Party shall have no obligation to pay royalties for any use of Residuals.\nHowever, this Section 2.4 does not grant the Receiving Party any rights under any patents or copyrights of the Disclosing Party.\n2.5 COMPELLED DISCLOSURE. If the Receiving Party or any of its respective Subsidiaries believes that it will be compelled by a court or\nother authority to disclose Confidential Information of the Disclosing Party, it shall (i) give the Disclosing Party prompt written notice so that the\nDisclosing Party may take steps to oppose such disclosure, and (ii) cooperate with the Disclosing Party in its attempts to oppose such disclosure. If\nthe Receiving Party complies with the above, it shall not be prohibited from complying with such requirement to disclose, but shall take all\nreasonable steps to make such disclosure subject to a suitable protective order or otherwise prevent unrestricted or public disclosure.\n2.6 NO RESTRICTION ON DISCLOSING PARTY. Nothing in this Agreement shall restrict the Disclosing Party from using, disclosing, or\ndisseminating its own Confidential Information in any way.\n2.7 NO RESTRICTION ON REASSIGNMENT. This Agreement shall not restrict reassignment of the Receiving Party’s employees.\n2.8 THIRD PARTY RESTRICTIONS. Nothing in the Agreement supersedes any restriction imposed by Third Parties on their Confidential\nInformation, and there is no obligation on the Disclosing Party to conform Third Party agreements to the terms of this Agreement.\n4-\nARTICLE 3\nWARRANTY DISCLAIMER\nEACH PARTY ACKNOWLEDGES AND AGREES THAT ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN “AS IS,\nWHERE IS” BASIS AND THAT NEITHER PARTY NOR ANY OF ITS SUBSIDIARIES HAS MADE OR WILL MAKE ANY WARRANTY\nWHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF\nMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ENFORCEABILITY OR NON-INFRINGEMENT.\nARTICLE 4\nCONFIDENTIALITY OF AGREEMENT\nEach party agrees that the terms and conditions of the Transaction Agreements marked as confidential shall be treated as Confidential\nInformation and that neither party will disclose such terms or conditions to any Third Party without the prior written consent of the other party,\nprovided, however, that each party may disclose such terms and conditions of such agreements marked as confidential:\n(a) as required by any court or other governmental body (subject to Section 2.5);\n(b) as otherwise required by law (subject to Section 2.5);\n(c) in confidence, to legal counsel of the parties, accountants, and other professional advisors;\n(d) in confidence to banks, investors and other financing sources and their advisors;\n(e) in connection with the enforcement of this Agreement or rights under this Agreement; or\n(f) in confidence, in connection with an actual or prospective merger or acquisition or similar transaction.\nARTICLE 5\nTERM AND TERMINATION\n5.1 TERM. This Agreement shall remain in full force and effect unless and until terminated by the mutual written agreement of the parties.\n_5-\n5.2 SURVIVAL . Articles 1, 2 (with respect to Confidential Information acquired or disclosed prior to the date of termination), 3, 4, 5.2, 6, and\n7 shall survive any termination of this Agreement.\nARTICLE 6\nDISPUTE RESOLUTION\n6.1 MEDIATION. If a dispute, controversy or claim (“Dispute”) arises between the parties relating to the interpretation or performance of this\nAgreement or the grounds for the termination hereof, appropriate senior executives (e.g. director or vice president level) of each party who shall\nhave the authority to resolve the matter shall meet to attempt in good faith to negotiate a resolution of the Dispute prior to pursuing other available\nremedies. The initial meeting between the appropriate senior executives shall be referred to herein as the “Dispute Resolution Commencement\nDate.” Discussions and correspondence relating to trying to resolve such Dispute shall be treated as confidential information developed for the\npurpose of settlement and shall be exempt from discovery or production and shall not be admissible. If the senior executives are unable to resolve the\nDispute within thirty (30) days from the Dispute Resolution Commencement Date, and either party wishes to pursue its rights relating to such\nDispute, then the Dispute will be mediated by a mutually acceptable mediator appointed pursuant to the mediation rules of JAMS/Endispute within\nthirty (30) days after written notice by one party to the other demanding non-binding mediation. Neither party may unreasonably withhold consent to\nthe selection of a mediator or the location of the mediation. Both parties will share the costs of the mediation equally, except that each party shall\nbear its own costs and expenses, including attorney’s fees, witness fees, travel expenses, and preparation costs. The parties may also agree to replace\nmediation with some other form of non-binding or binding Alternative Dispute Resolution (“ADR?”).\n6.2 ARBITRATION. Any Dispute which the parties cannot resolve through mediation within ninety (90) days of the Dispute Resolution\nCommencement Date, unless otherwise mutually agreed, shall be submitted to final and binding arbitration under the then current Commercial\nArbitration Rules of the American Arbitration Association (“AAA”), by three (3) arbitrators in Santa Clara County, California. Such arbitrators shall\nbe selected by the mutual agreement of the parties or, failing such agreement, shall be selected according to the aforesaid AAA rules. The arbitrators\nwill be instructed to prepare and deliver a written, reasoned opinion stating their decision within thirty (30) days of the completion of the arbitration.\nThe prevailing party in such arbitration shall be entitled to expenses, including costs and reasonable attorneys’ and other professional fees, incurred\nin connection with the arbitration (but excluding any costs and fees associated with prior negotiation or mediation). The decision of the arbitrator\nshall be final and non-appealable and may be enforced in any court of competent jurisdiction. The use of any ADR procedures will not be construed\nunder the doctrine of laches, waiver or estoppel to adversely affect the rights of either party.\n6.3 COURT ACTION. Any Dispute regarding the following is not required to be negotiated, mediated or arbitrated prior to seeking relief from\na court of competent jurisdiction:\n-6-\nbreach of any obligation of confidentiality; infringement, misappropriation, or misuse of any intellectual property right; any other claim where\ninterim relief from the court is sought to prevent serious and irreparable injury to one of the parties or to others. However, the parties to the Dispute\nshall make a good faith effort to negotiate and mediate such Dispute, according to the above procedures, while such court action is pending.\n6.4 CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise agreed in writing, the parties will continue to provide service and\nhonor all other commitments under this Agreement and each Ancillary Agreement during the course of dispute resolution pursuant to the provisions\nof this Article 6 with respect to all matters not subject to such dispute, controversy or claim.\n6.5 RESOLUTION BY PALMSOURCE COMMITTEE. Notwithstanding the foregoing, while PalmSource remains a wholly-owned\nsubsidiary (excluding shares issued pursuant to PalmSource equity plans to officers, directors, employees and consultants of PalmSource), if,\npursuant to Section 6.1, the senior executives are unable to resolve the Dispute within thirty (30) days from the Dispute Resolution Commencement\nDate, and either party wishes to pursue its rights relating to such Dispute, then in lieu of mediation or subsequent remedy contemplated by Section\n6.2-6.3, the Dispute will be submitted to the PalmSource Committee for resolution (which committee shall consist of the CEO of Palm, the CEO of\nPalmSource and the Chairman of the Board of Palm, or such other composition as is mutually acceptable to Palm and PalmSource).\nARTICLE 7\nMISCELLANEOUS PROVISIONS\n7.1 EXPORT RESTRICTIONS. Both parties shall adhere to all applicable laws, regulations and rules relating to the export of technical data,\nand shall not export or reexport any technical data, any products received from Disclosing Party, or the direct product of such technical data, to any\nproscribed country listed in such applicable laws, regulations and rules unless properly authorized.\n7.2 NO IMPLIED LICENSES. Nothing contained in this Agreement shall be construed as conferring any rights by implication, estoppel or\notherwise, under any intellectual property right, other than the rights expressly granted in this Agreement with respect to Confidential Information.\nNeither party is required hereunder to furnish or disclose to the other any technical or other information.\n7.3 INFRINGEMENT SUITS. Neither party shall have any obligation hereunder to institute any action or suit against Third Parties for\nmisappropriation of any of its Confidential Information or to defend any action or suit brought by a Third Party that alleges infringement of any\nintellectual property rights by the Receiving Party’s authorized use of the Disclosing Party’s Confidential Information.\n_7-\n7.4 NO OTHER OBLIGATIONS. NEITHER PARTY ASSUMES ANY RESPONSIBILITIES OR OBLIGATIONS WHATSOEVER, OTHER\nTHAN THE RESPONSIBILITIES AND OBLIGATIONS EXPRESSLY SET FORTH IN THIS AGREEMENT OR A SEPARATE WRITTEN\nAGREEMENT BETWEEN THE PARTIES.\n7.5 ENTIRE AGREEMENT. This Agreement, the Master Separation Agreement and the other Ancillary Agreements and the Exhibits and\nSchedules referenced or attached hereto and thereto constitute the entire agreement between the parties with respect to the subject matter hereof and\nthereof and shall supersede all prior written and oral and all contemporaneous oral agreements and understandings with respect to the subject matter\nhereof and thereof. Notwithstanding the foregoing, the parties agree that any agreements entered into between them after the Separation Date for the\nprotection of specific Confidential Information shall supersede the terms of this Agreement with respect to such Confidential Information.\n7.6 GOVERNING LAW. This Agreement shall be construed in accordance with and all Disputes hereunder shall be governed by the laws of\nthe State of California, excluding its conflict of law rules and the United Nations Convention on Contracts for the International Sale of Goods. The\nSuperior Court of Santa Clara County and/or the United States District Court for the Northern District of California shall have jurisdiction and venue\nover all Disputes between the parties that are permitted to be brought in a court of law pursuant to Section 6 above.\n7.7 DESCRIPTIVE HEADINGS. The headings contained in this Agreement, in any Exhibit hereto and in the table of contents to this\nAgreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any capitalized term\nused in any Exhibit but not otherwise defined therein, shall have the meaning assigned to such term in this Agreement. When a reference is made in\nthis Agreement to an Article or a Section or an Exhibit, such reference shall be to an Article or Section of, or an Exhibit to, this Agreement unless\notherwise indicated.\n7.8 NOTICES. Notices, offers, requests or other communications required or permitted to be given by either party pursuant to the terms of this\nAgreement shall be given in writing to the respective parties to the following addresses:\nif to Palm :\nPalm, Inc.\n5470 Great America Parkway\nSanta Clara, California 95054\nAttention: General Counsel\nif to PalmSource:\nPalmSource, Inc.\n5470 Great America Parkway\nSanta Clara, California 95054\nAttention: Chief Executive Officer\nor to such other address as the party to whom notice is given may have previously furnished to the other in writing as provided herein. Any notice\ninvolving non-performance, termination, or renewal shall be sent by hand delivery, recognized overnight courier or, within the United States, may\nalso be sent via certified mail, return receipt requested. All other notices may also be sent by fax, confirmed by first class mail. All notices shall be\ndeemed to have been given and received on the earlier of actual delivery or three (3) days from the date of postmark.\n7.9 NONASSIGNABILITY. Neither party may, directly or indirectly, in whole or in part, whether by operation of law or otherwise, assign or\ntransfer this Agreement, without the other party’s prior written consent, and any attempted assignment, transfer or delegation without such prior\nwritten consent shall be voidable at the sole option of such other party. Notwithstanding the foregoing, each party (or its permitted successive\nassignees or transferees hereunder) may assign or transfer this Agreement as a whole without consent to a Person that succeeds to all or substantially\nall of the business or assets of such party as long as such Person agrees to accept all the terms and conditions set forth herein. Without limiting the\nforegoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.\n7.10 SEVERABILITY. If any term or other provision of this Agreement or the Exhibits attached hereto is determined by a court,\nadministrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and\nprovisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions\ncontemplated hereby is not affected in any manner materially adverse to either party. Upon such determination that any term or other provision is\ninvalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original\nintent of the parties as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the fullest extent\npossible.\n7.11 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure or delay on the part of either party hereto in the\nexercise of any right hereunder shall impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation,\nwarranty or agreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right.\nAll rights and remedies existing under this Agreement or the Exhibits attached hereto are cumulative to, and not exclusive of, any rights or remedies\notherwise available.\n7.12 AMENDMENT. No change or amendment will be made to this Agreement or the Exhibits attached hereto except by an instrument in\nwriting signed on behalf of each of the parties to such agreement.\n7.13 COUNTERPARTS. This Agreement, including the Ancillary Agreements and the Exhibits and Schedules hereto and thereto and the other\ndocuments referred to herein or therein, may be executed in counterparts, each of which shall be deemed to be an original but all of which shall\nconstitute one and the same agreement.\n9.\nWHEREFORE, the parties have signed this Master Confidential Disclosure Agreement effective as of the Effective Date.\nPALM, INC. PALMSOURCE, INC.\nBy: /s/  JUDY BRUNER By /s/  DAVID C. NAGEL\nName: Judy Bruner Name: David Nagel\nTitle: Chief Financial Officer Title: Chief Executive Officer\n-10-	EX-2.28 17 dex228.htm MASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nExhibit 2.28\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nbetween\nPALM, INC.\nand\nPALMSOURCE, INC.\nEffective as of December 3, 2001\nTABLE OF CONTENTS\nPage\nARTICLE 1 DEFINITIONS\n1\n1.1\nANCILLARY AGREEMENTS\n1\n1.2\nBUSINESS SERVICES AGREEMENT\n1\n1.3\nCONFIDENTIAL INFORMATION\n1\n1.4\nCONFIDENTIALITY PERIOD\n2\n1.5\nDISCLOSING PARTY\n2\n1.6\nHIGHLY CONFIDENTIAL INFORMATION\n2\n1.7\nMASTER SEPARATION AGREEMENT\n2\n1.8\nPERSON\n3\n1.9\nRECEIVING PARTY\n3\n1.10\nSEPARATION DATE\n3\n1.11\nSUBSIDIARY\n3\n1.12\nTHIRD PARTY\n3\n1.13\nTRANSACTION AGREEMENTS\n3\nARTICLE 2 CONFIDENTIALITY\n3\n2.1\nCONFIDENTIALITY AND NON-USE OBLIGATIONS\n3\n2.2\nDISCLOSURE TO SUBLICENSEES\n4\n2.3\nCONTRACT MANUFACTURERS\n4\n2.4\nRESIDUALS\n4\n2.5\nCOMPELLED DISCLOSURE\n4\n2.6\nNO RESTRICTION ON DISCLOSING PARTY\n4\n2.7\nNO RESTRICTION ON REASSIGNMENT\n4\n2.8\nTHIRD PARTY RESTRICTIONS\n4\nARTICLE 3 WARRANTY DISCLAIMER\n5\nARTICLE 4 CONFIDENTIALITY OF AGREEMENT\n5\nARTICLE 5 TERM AND TERMINATION\n5\n5.1\nTERM\n5\n5.2\nSURVIVAL\n6\nARTICLE 6 DISPUTE RESOLUTION\n6\n6.1\nMEDIATION\n6\n6.2\nARBITRATION\n6\n6.3\nCOURT ACTION\n6\n6.4\nCONTINUITY OF SERVICE AND PERFORMANCE\n7\n6.5\nRESOLUTION BY PALMSOURCE COMMITTEE\n7\n-i-\nTABLE OF CONTENTS\n(Continued)\nPage\nARTICLE 7 MISCELLANEOUS PROVISIONS\n7\n7.1\nEXPORT RESTRICTIONS\n7\n7.2\nNO IMPLIED LICENSES\n7\n7.3\nINFRINGEMENT SUITS\n7\n7.4\nNO OTHER OBLIGATIONS\n8\n7.5\nENTIRE AGREEMENT\n8\n7.6\nGOVERNING LAW\n8\n7.7\nDESCRIPTIVE HEADINGS\n8\n7.8\nNOTICES\n8\n7.9\nNONASSIGNABILITY\n9\n7.10\nSEVERABILITY\n9\n7.11\nFAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE\n9\n7.12\nAMENDMENT\n9\n7.13\nCOUNTERPARTS\n9\n-ii-\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nThis Master Confidential Disclosure Agreement (the "Agreement") is executed on May 9, 2002 and made effective as of December 3, 2001\n(the "Effective Date"), between Palm, Inc., a Delaware corporation ("Palm"), having an office at 5470 Great America Parkway, Santa Clara,\nCalifornia, 95054 and PalmSource, Inc., a Delaware corporation ("PalmSource"), having an office at 5470 Great America Parkway, Santa Clara,\nCalifornia, 95054.\nRECITALS\nWHEREAS, the Board of Directors of Palm has determined that it is in the best interest of Palm and its stockholders to separate Palm's\nexisting businesses into two independent businesses and have the current business of the Palm platform solutions group conducted through a wholly-\nowned subsidiary;\nWHEREAS, as part of the foregoing, Palm and have entered into a Master Separation Agreement (as defined below), which provides for,\namong other things, the execution and delivery of certain other agreements in order to facilitate and provide for the foregoing; and\nWHEREAS, also as part of the foregoing, the parties further desire to enter into this Agreement to provide for the protection of their\nConfidential Information (as defined below).\nNOW, THEREFORE, in consideration of the mutual promises of the parties, and of good and valuable consideration, it is agreed by and\nbetween the parties as follows:\nARTICLE 1\nDEFINITIONS\nFor the purpose of this Agreement the following capitalized terms are defined in this Article 1 and shall have the meaning specified herein:\n1.1 ANCILLARY AGREEMENTS. "Ancillary Agreements" means the items and agreements listed in Section 2.1 of the Master Separation\nAgreement and all agreements and documents contemplated by such agreements.\n1.2 BUSINESS SERVICES AGREEMENT. "Business Services Agreement" means that certain Business Services Agreement between Palm\nand PalmSource.\n1.3 CONFIDENTIAL INFORMATION\n(a) "Confidential Information" means business information, technical data, know-how and other information which is not otherwise in\nthe public domain and of which the owner actively undertakes to restrict or control the disclosure to Third Parties in a manner reasonably\nintended to maintain its confidentiality, and which (i) is the subject of any Transaction Agreement and known to or in the possession of the\nReceiving Party as of the Separation Date or (ii) is disclosed to the Receiving Party pursuant to any Transaction Agreement for a period of one (1)\nyear after the Effective Date or such term during which services are provided under the Business Services Agreement, whichever is longer.\nConfidential Information may include information relating to, by way of example, research, products, services, customers, markets, software,\ndevelopments, inventions, processes, designs, drawings, engineering, marketing or finances, and may be in writing, disclosed orally or learned\nby\ninspection of computer programming code, equipment or facilities.\n(b) Confidential Information of Third Parties that is known to, in the possession of or acquired by a Receiving Party pursuant to a\nrelationship with the Disclosing Party shall be deemed the Disclosing Party's Confidential Information for purposes herein.\n(c) Notwithstanding the foregoing provisions of this Section 1.2, Confidential Information shall exclude information that: (i) was in the\nReceiving Party's possession before receipt from the Disclosing Party and obtained from a source other than the Disclosing Party and other than\nthrough the prior relationship of the Disclosing Party and the Receiving Party before the Separation Date; (ii) is or becomes a matter of public\nknowledge through no fault of the Receiving Party; (iii) is rightfully received by the Receiving Party from a Third Party without a duty of\nconfidentiality; (iv) is disclosed by the Disclosing Party to a Third Party without a duty of confidentiality on the Third Party; (v) is independently\ndeveloped by the Receiving Party; or (vi) is disclosed by the Receiving Party with the Disclosing Party's prior written approval.\n1.4 CONFIDENTIALITY PERIOD. "Confidentiality Period" means, (i) with respect to Confidential Information that is not Highly\nConfidential Information, five (5) years, and (ii) with respect to Highly Confidential Information, in perpetuity, after either (A) the Separation Date\nwith respect to Confidential Information of the Disclosing Party that is known to or in the possession of the Receiving Party as of the Separation\nDate or (B) the date of disclosure with respect to Confidential Information that is disclosed by the Disclosing Party to the Receiving Party after the\nSeparation Date.\n1.5 DISCLOSING PARTY. "Disclosing Party" means the party owning or disclosing the relevant Confidential Information.\n1.6 HIGHLY CONFIDENTIAL INFORMATION. "Highly Confidential Information" means Confidential Information that is source code for\nproducts that are commercially released or for which substantial steps have been taken to commercialization, and personally identifiable information\nregarding customers and employees.\n1.7 MASTER SEPARATION AGREEMENT. "Master Separation Agreement" means that certain Master Separation Agreement between Palm\nand PalmSource.\n-2-\n1.8 PERSON. "Person" means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a\ntrust, a joint venture, an unincorporated organization, and a governmental entity or any department, agency or political subdivision thereof.\n1.9 RECEIVING PARTY. "Receiving Party" means the non-owning party or recipient of the relevant Confidentia Information.\n1.10 SEPARATION DATE. "Separation Date" means 12:01 a.m., Pacific Time, December 3, 2001, or such other date as may be fixed by the\nBoard of Directors of Palm.\n1.11 SUBSIDIARY. "Subsidiary" of any Person means a corporation or other organization, whether incorporated or unincorporated, of which\nat\nleast a majority of the securities or interests having by the terms thereof ordinary voting power to elect at least a majority of the board of directors\nor others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such\nPerson or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries; provided, however, that no Person that is not\ndirectly or indirectly wholly-owned by any other Person shall be a Subsidiary of such other Person unless such other Person controls, or has the\nright, power or ability to control, that Person. For purposes of this Agreement, PalmSource shall be deemed not to be a subsidiary of Palm.\n1.12 THIRD PARTY. "Third Party" means a Person other than Palm and its Subsidiaries or PalmSource and its Subsidiaries.\n1.13 TRANSACTION AGREEMENTS. "Transaction Agreements" means the Master Separation Agreement and the Ancillary Agreements\nbetween Palm and PalmSource, but does not include the following agreements between Palm and PalmSource: Software License Agreement and\nElaine Software License Agreement, each effective as of December 3, 2001 and under which PalmSource licenses to Palm certain operating system\nand server software and related products.\nARTICLE 2\nCONFIDENTIALITY\n2.1 CONFIDENTIALITY AND NON-USE OBLIGATIONS. During the Confidentiality Period, the Receiving Party shall (i) protect the\nConfidential Information of the Disclosing Party by using the same degree of care, but no less than a reasonable degree of care, to prevent the\nunauthorized use, dissemination, or publication of the Confidential Information as Receiving Party uses to protect its own confidential information\nof a like nature, (ii) not use such Confidential Information in violation of any use restriction in any Transaction Agreement, and (iii) not disclose\nsuch Confidential Information to any Third Party, except as expressly permitted under this Agreement, in the Transaction Agreements or in any other\nagreements entered into between the parties in writing, without prior written consent of the Disclosing Party.\n-3-\n2.2 DISCLOSURE TO SUBLICENSEES The Receiving Party has the right to disclose to its sublicensees permitted under a Transaction\nAgreement portions of Confidential Information as reasonably necessary in the exercise of the Receiving Party's sublicense rights under such\nTransaction Agreement, subject to the sublicensee's agreement in writing to confidentiality and non-use terms at least as protective of the Disclosing\nParty as the provisions of this Agreement.\n2.3 CONTRACT MANUFACTURERS The Receiving Party has the right to disclose to its contract manufacturers permitted under any\nTransaction Agreement portions of the Confidential Information as reasonably necessary in the exercise of the Receiving Party's "have made" rights\nunder any Transaction Agreement, subject to the contract manufacturer's agreement in writing to confidentiality and non-use terms at least\nas\nprotective of the Disclosing Party as the provisions of this Agreement.\n2.4 RESIDUALS. Notwithstanding any other provision of this Agreement, the Receiving Party shall be free, and the Disclosing Party hereby\ngrants to the Receiving Party, except as otherwise provided in this Section 2.4, the right, to use or exploit for any purpose the Residuals resulting\nfrom access to or work with the Confidential Information of the Disclosing Party; provided however that the Receiving Party shall maintain the\nconfidentiality of the Confidential Information as required by this Agreement. "Residuals" means information retained in the unaided memories\nof\nindividuals who have had access to Confidential Information. The Receiving Party shall have no obligation to pay royalties for any use of Residuals.\nHowever, this Section 2.4 does not grant the Receiving Party any rights under any patents or copyrights of the Disclosing Party.\n2.5 COMPELLED DISCLOSURE. If the Receiving Party or any of its respective Subsidiaries believes that it will be compelled by a court or\nother authority to disclose Confidential Information of the Disclosing Party, it shall (i) give the Disclosing Party prompt written notice so that the\nDisclosing Party may take steps to oppose such disclosure, and (ii) cooperate with the Disclosing Party in its attempts to oppose such disclosure.\nIf\nthe Receiving Party complies with the above, it shall not be prohibited from complying with such requirement to disclose, but shall take all\nreasonable steps to make such disclosure subject to a suitable protective order or otherwise prevent unrestricted or public disclosure.\n2.6 NO RESTRICTION ON DISCLOSING PARTY. Nothing in this Agreement shall restrict the Disclosing Party from using, disclosing, or\ndisseminating its own Confidential Information in any way.\n2.7 NO RESTRICTION ON REASSIGNMENT. This Agreement shall not restrict reassignment of the Receiving Party's employees.\n2.8 THIRD PARTY RESTRICTIONS. Nothing in the Agreement supersedes any restriction imposed by Third Parties on their Confidential\nInformation, and there is no obligation on the Disclosing Party to conform Third Party agreements to the terms of this Agreement.\n-4-\nARTICLE 3\nWARRANTY DISCLAIMER\nEACH PARTY ACKNOWLEDGES AND AGREES THAT ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN "AS IS,\nWHERE IS" BASIS AND THAT NEITHER PARTY NOR ANY OF ITS SUBSIDIARIES HAS MADE OR WILL MAKE ANY WARRANTY\nWHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF\nMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ENFORCEABILITY OR NON-INFRINGEMENT.\nARTICLE 4\nCONFIDENTIALITY OF AGREEMENT\nEach party agrees that the terms and conditions of the Transaction Agreements marked as confidential shall be treated as Confidential\nInformation and that neither party will disclose such terms or conditions to any Third Party without the prior written consent of the other party,\nprovided, however, that each party may disclose such terms and conditions of such agreements marked as confidential:\n(a) as required by any court or other governmental body (subject to Section 2.5);\n(b) as otherwise required by law (subject to Section 2.5);\n(c) in confidence, to legal counsel of the parties, accountants, and other professional advisors;\n(d) in confidence to banks, investors and other financing sources and their advisors;\n(e) in connection with the enforcement of this Agreement or rights under this Agreement; or\n(f) in confidence, in connection with an actual or prospective merger or acquisition or similar transaction.\nARTICLE 5\nTERM AND TERMINATION\n5.1 TERM. This Agreement shall remain in full force and effect unless and until terminated by the mutual written agreement of the parties.\n-5-\n5.2 SURVIVAL Articles 1, 2 (with respect to Confidential Information acquired or disclosed prior to the date of termination), 3, 4, 5.2, 6, and\n7 shall survive any termination of this Agreement.\nARTICLE 6\nDISPUTE RESOLUTION\n6.1 MEDIATION. If a dispute, controversy or claim ("Dispute") arises between the parties relating to the interpretation or performance of this\nAgreement or the grounds for the termination hereof, appropriate senior executives (e.g. director or vice president level) of each party who shall\nhave the authority to resolve the matter shall meet to attempt in good faith to negotiate a resolution of the Dispute prior to pursuing other available\nremedies. The initial meeting between the appropriate senior executives shall be referred to herein as the "Dispute Resolution Commencement\nDate." Discussions and correspondence relating to trying to resolve such Dispute shall be treated as confidential information developed for the\npurpose of settlement and shall be exempt from discovery or production and shall not be admissible. If the senior executives are unable to resolve the\nDispute within thirty (30) days from the Dispute Resolution Commencement Date, and either party wishes to pursue its rights relating to such\nDispute, then the Dispute will be mediated by a mutually acceptable mediator appointed pursuant to the mediation rules of JAMS/Endispute within\nthirty (30) days after written notice by one party to the other demanding non-binding mediation. Neither party may unreasonably withhold consent\nto\nthe selection of a mediator or the location of the mediation. Both parties will share the costs of the mediation equally, except that each party shall\nbear its own costs and expenses, including attorney's fees, witness fees, travel expenses, and preparation costs. The parties may also agree to replace\nmediation with some other form of non-binding or binding Alternative Dispute Resolution ("ADR").\n6.2 ARBITRATION. Any Dispute which the parties cannot resolve through mediation within ninety (90) days of the Dispute Resolution\nCommencement Date, unless otherwise mutually agreed, shall be submitted to final and binding arbitration under the then current Commercial\nArbitration Rules of the American Arbitration Association ("AAA"), by three (3) arbitrators in Santa Clara County, California. Such arbitrators shall\nbe selected by the mutual agreement of the parties or, failing such agreement, shall be selected according to the aforesaid AAA rules. The arbitrators\nwill be instructed to prepare and deliver a written, reasoned opinion stating their decision within thirty (30) days of the completion of the arbitration.\nThe prevailing party in such arbitration shall be entitled to expenses, including costs and reasonable attorneys' and other professional fees, incurred\nin connection with the arbitration (but excluding any costs and fees associated with prior negotiation or mediation). The decision of the arbitrator\nshall be final and non-appealable and may be enforced in any court of competent jurisdiction. The use of any ADR procedures will not be construed\nunder the doctrine of laches, waiver or estoppel to adversely affect the rights of either party.\n6.3 COURT ACTION. Any Dispute regarding the following is not required to be negotiated, mediated or arbitrated prior to seeking relief from\na court of competent jurisdiction:\n-6-\nbreach of any obligation of confidentiality; infringement, misappropriation, or misuse of any intellectua property right; any other claim where\ninterim relief from the court is sought to prevent serious and irreparable injury to one of the parties or to others. However, the parties to the Dispute\nshall make a good faith effort to negotiate and mediate such Dispute, according to the above procedures, while such court action is pending.\n6.4 CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise agreed in writing, the parties will continue to provide service and\nhonor all other commitments under this Agreement and each Ancillary Agreement during the course of dispute resolution pursuant to the provisions\nof this Article 6 with respect to all matters not subject to such dispute, controversy or claim.\n6.5 RESOLUTION BY PALMSOURCE COMMITTEE. Notwithstanding the foregoing, while PalmSource remains a wholly-owned\nsubsidiary (excluding shares issued pursuant to PalmSource equity plans to officers, directors, employees and consultants of PalmSource),\nif,\npursuant to Section 6.1, the senior executives are unable to resolve the Dispute within thirty (30) days from the Dispute Resolution Commencement\nDate, and either party wishes to pursue its rights relating to such Dispute, then in lieu of mediation or subsequent remedy contemplated by Section\n6.2-6.3, the Dispute will be submitted to the PalmSource Committee for resolution (which committee shall consist of the CEO of Palm, the CEO of\nPalmSource and the Chairman of the Board of Palm, or such other composition as is mutually acceptable to Palm and PalmSource).\nARTICLE 7\nMISCELLANEOUS PROVISIONS\n7.1 EXPORT RESTRICTIONS. Both parties shall adhere to all applicable laws, regulations and rules relating to the export of technical data,\nand shall not export or reexport any technical data, any products received from Disclosing Party, or the direct product of such technical data, to any\nproscribed country listed in such applicable laws, regulations and rules unless properly authorized.\n7.2 NO IMPLIED LICENSES. Nothing contained in this Agreement shall be construed as conferring any rights by implication, estoppel or\notherwise, under any intellectual property right, other than the rights expressly granted in this Agreement with respect to Confidential Information\nNeither party is required hereunder to furnish or disclose to the other any technical or other information.\n7.3 INFRINGEMENT SUITS. Neither party shall have any obligation hereunder to institute any action or suit against Third Parties for\nmisappropriation of any of its Confidential Information or to defend any action or suit brought by a Third Party that alleges infringement of any\nintellectual property rights by the Receiving Party's authorized use of the Disclosing Party's Confidential Information.\n-7-\n7.4 NO OTHER OBLIGATIONS. NEITHER PARTY ASSUMES ANY RESPONSIBILITIES OR OBLIGATIONS WHATSOEVER, OTHER\nTHAN THE RESPONSIBILITIES AND OBLIGATIONS EXPRESSLY SET FORTH IN THIS AGREEMENT OR A SEPARATE WRITTEN\nAGREEMENT BETWEEN THE PARTIES.\n7.5 ENTIRE AGREEMENT. This Agreement, the Master Separation Agreement and the other Ancillary Agreements and the Exhibits and\nSchedules referenced or attached hereto and thereto constitute the entire agreement between the parties with respect to the subject matter hereof and\nthereof and shall supersede all prior written and oral and all contemporaneous oral agreements and understandings with respect to the subject matter\nhereof and thereof. Notwithstanding the foregoing, the parties agree that any agreements entered into between them after the Separation Date for the\nprotection of specific Confidential Information shall supersede the terms of this Agreement with respect to such Confidential Information.\n7.6 GOVERNING LAW. This Agreement shall be construed in accordance with and all Disputes hereunder shall be governed by the laws of\nthe\nState of California, excluding its conflict of law rules and the United Nations Convention on Contracts for the International Sale of Goods. The\nSuperior Court of Santa Clara County and/or the United States District Court for the Northern District of California shall have jurisdiction and venue\nover all Disputes between the parties that are permitted to be brought in a court of law pursuant to Section 6 above.\n7.7 DESCRIPTIVE HEADINGS. The headings contained in this Agreement, in any Exhibit hereto and in the table of contents to this\nAgreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any capitalized term\nused in any Exhibit but not otherwise defined therein, shall have the meaning assigned to such term in this Agreement. When a reference is made\nin\nthis Agreement to an Article or a Section or an Exhibit, such reference shall be to an Article or Section of, or an Exhibit to, this Agreement unless\notherwise indicated.\n7.8 NOTICES. Notices, offers, requests or other communications required or permitted to be given by either party pursuant to the terms of this\nAgreement shall be given in writing to the respective parties to the following addresses:\nif to Palm\nPalm, Inc.\n5470 Great America Parkway\nSanta Clara, California 95054\nAttention: General Counsel\nif to PalmSource:\nPalmSource, Inc.\n5470 Great America Parkway\nSanta Clara, California 95054\nAttention: Chief Executive Officer\n-8-\nor to such other address as the party to whom notice is given may have previously furnished to the other in writing as provided herein. Any notice\ninvolving non-performance, termination, or renewal shall be sent by hand delivery, recognized overnight courier or, within the United States, may\nalso be sent via certified mail, return receipt requested. All other notices may also be sent by fax, confirmed by first class mail. All notices shall be\ndeemed to have been given and received on the earlier of actual delivery or three (3) days from the date of postmark.\n7.9 NONASSIGNABILITY. Neither party may, directly or indirectly, in whole or in part, whether by operation of law or otherwise, assign or\ntransfer this Agreement, without the other party's prior written consent, and any attempted assignment, transfer or delegation without such prior\nwritten consent shall be voidable at the sole option of such other party. Notwithstanding the foregoing, each party (or its permitted successive\nassignees or transferees hereunder) may assign or transfer this Agreement as a whole without consent to a Person that succeeds to all or substantially\nall of the business or assets of such party as long as such Person agrees to accept all the terms and conditions set forth herein. Without limiting the\nforegoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.\n7.10 SEVERABILITY. If any term or other provision of this Agreement or the Exhibits attached hereto is determined by a court,\nadministrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions\nand\nprovisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions\ncontemplated hereby is not affected in any manner materially adverse to either party. Upon such determination that any term or other provision is\ninvalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original\nintent of the parties as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the fullest extent\npossible.\n7.11 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure or delay on the part of either party hereto in the\nexercise of any right hereunder shall impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation,\nwarranty or agreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right.\nAll rights and remedies existing under this Agreement or the Exhibits attached hereto are cumulative to, and not exclusive of, any rights or remedies\notherwise available.\n7.12 AMENDMENT. No change or amendment will be made to this Agreement or the Exhibits attached hereto except by an instrument in\nwriting signed on behalf of each of the parties to such agreement.\n7.13 COUNTERPARTS. This Agreement, including the Ancillary Agreements and the Exhibits and Schedules hereto and thereto and the other\ndocuments referred to herein or therein, may be executed in counterparts, each of which shall be deemed to be an original but all of which shall\nconstitute one and the same agreement.\n-9-\nWHEREFORE, the parties have signed this Master Confidential Disclosure Agreement effective as of the Effective Date.\nPALM, INC.\nPALMSOURCE, INC.\nBy:\n/s/ JUDY BRUNER\nBy:\n/s/ DAVID C. NAGEL\nName:\nJudy Bruner\nName:\nDavid Nagel\nTitle:\nChief Financial Officer\nTitle:\nChief Executive Officer\n-10-	EX-2.28 17 dex228.htm MASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nExhibit 2.28\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nbetween\nPALM, INC.\nand\nPALMSOURCE, INC.\nEffective as of December 3, 2001\nTABLE OF CONTENTS\nPage\nARTICLE 1 DEFINITIONS\n1\n1.1\nANCILLARY AGREEMENTS\n1\n1.2\nBUSINESS SERVICES AGREEMENT\n1\n1.3\nCONFIDENTIAL INFORMATION\n1\n1.4\nCONFIDENTIALITY PERIOD\n2\n1.5\nDISCLOSING PARTY\n2\n1.6\nHIGHLY CONFIDENTIAL INFORMATION\n2\n1.7\nMASTER SEPARATION AGREEMENT\n2\n1.8\nPERSON\n3\n1.9\nRECEIVING PARTY\n3\n1.10\nSEPARATION DATE\n3\n1.11\nSUBSIDIARY\n3\n1.12\nTHIRD PARTY\n3\n1.13\nTRANSACTION AGREEMENTS\n3\nARTICLE 2 CONFIDENTIALITY\n3\n2.1\nCONFIDENTIALITY AND NON-USE OBLIGATIONS\n3\n2.2\nDISCLOSURE TO SUBLICENSEES\n4\n2.3\nCONTRACT MANUFACTURERS\n4\n2.4\nRESIDUALS\n4\n2.5\nCOMPELLED DISCLOSURE\n4\n2.6\nNO RESTRICTION ON DISCLOSING PARTY\n4\n2.7\nNO RESTRICTION ON REASSIGNMENT\n4\n2.8\nTHIRD PARTY RESTRICTIONS\n4\nARTICLE 3 WARRANTY DISCLAIMER\n5\nARTICLE 4 CONFIDENTIALITY OF AGREEMENT\n5\nARTICLE 5 TERM AND TERMINATION\n5\n5.1\nTERM\n5\n5.2\nSURVIVAL\n6\nARTICLE 6 DISPUTE RESOLUTION\n6\n6.1\nMEDIATION\n6\n6.2\nARBITRATION\n6\n6.3\nCOURT ACTION\n6\n6.4\nCONTINUITY OF SERVICE AND PERFORMANCE\n7\n6.5\nRESOLUTION BY PALMSOURCE COMMITTEE\n7\n-i-\nTABLE OF CONTENTS\n(Continued)\nPage\nARTICLE 7 MISCELLANEOUS PROVISIONS\n7\n7.1\nEXPORT RESTRICTIONS\n7\n7.2\nNO IMPLIED LICENSES\n7\n7.3\nINFRINGEMENT SUITS\n7\n7.4\nNO OTHER OBLIGATIONS\n8\n7.5\nENTIRE AGREEMENT\n8\n7.6\nGOVERNING LAW\n8\n7.7\nDESCRIPTIVE HEADINGS\n8\n7.8\nNOTICES\n8\n7.9\nNONASSIGNABILITY\n9\n7.10\nSEVERABILITY\n9\n7.11\nFAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE\n9\n7.12\nAMENDMENT\n9\n7.13\nCOUNTERPARTS\n9\n- ii-\nMASTER CONFIDENTIAL DISCLOSURE AGREEMENT\nThis Master Confidential Disclosure Agreement (the “Agreement”) is executed on May 9, 2002 and made effective as of December 3, 2001\n(the “Effective Date”), between Palm, Inc., a Delaware corporation (“Palm”), having an office at 5470 Great America Parkway, Santa Clara,\nCalifornia, 95054 and PalmSource, Inc., a Delaware corporation (“PalmSource”), having an office at 5470 Great America Parkway, Santa Clara,\nCalifornia, 95054.\nRECITALS\nWHEREAS, the Board of Directors of Palm has determined that it is in the best interest of Palm and its stockholders to separate Palm’s\nexisting businesses into two independent businesses and have the current business of the Palm platform solutions group conducted through a wholly-\nowned subsidiary;\nWHEREAS, as part of the foregoing, Palm and have entered into a Master Separation Agreement (as defined below), which provides for,\namong other things, the execution and delivery of certain other agreements in order to facilitate and provide for the foregoing; and\nWHEREAS, also as part of the foregoing, the parties further desire to enter into this Agreement to provide for the protection of their\nConfidential Information (as defined below).\nNOW, THEREFORE, in consideration of the mutual promises of the parties, and of good and valuable consideration, it is agreed by and\nbetween the parties as follows:\nARTICLE 1\nDEFINITIONS\nFor the purpose of this Agreement the following capitalized terms are defined in this Article 1 and shall have the meaning specified herein:\n1.1 ANCILLARY AGREEMENTS . “Ancillary Agreements” means the items and agreements listed in Section 2.1 of the Master Separation\nAgreement and all agreements and documents contemplated by such agreements.\n1.2 BUSINESS SERVICES AGREEMENT. “Business Services Agreement” means that certain Business Services Agreement between Palm\nand PalmSource.\n1.3 CONFIDENTIAL INFORMATION\n(a) “Confidential Information” means business information, technical data, know-how and other information which is not otherwise in\nthe public domain and of which the owner actively undertakes to restrict or control the disclosure to Third Parties in a manner reasonably\nintended to maintain its confidentiality, and which (i) is the subject of any Transaction Agreement and known to or in the possession of the\nReceiving Party as of the Separation Date or (ii) is disclosed to the Receiving Party pursuant to any Transaction Agreement for a period of one (1)\nyear after the Effective Date or such term during which services are provided under the Business Services Agreement, whichever is longer.\nConfidential Information may include information relating to, by way of example, research, products, services, customers, markets, software,\ndevelopments, inventions, processes, designs, drawings, engineering, marketing or finances, and may be in writing, disclosed orally or learned by\ninspection of computer programming code, equipment or facilities.\n(b) Confidential Information of Third Parties that is known to, in the possession of or acquired by a Receiving Party pursuant to a\nrelationship with the Disclosing Party shall be deemed the Disclosing Party’s Confidential Information for purposes herein.\n(c) Notwithstanding the foregoing provisions of this Section 1.2, Confidential Information shall exclude information that: (i) was in the\nReceiving Party’s possession before receipt from the Disclosing Party and obtained from a source other than the Disclosing Party and other than\nthrough the prior relationship of the Disclosing Party and the Receiving Party before the Separation Date; (ii) is or becomes a matter of public\nknowledge through no fault of the Receiving Party; (iii) is rightfully received by the Receiving Party from a Third Party without a duty of\nconfidentiality; (iv) is disclosed by the Disclosing Party to a Third Party without a duty of confidentiality on the Third Party; (v) is independently\ndeveloped by the Receiving Party; or (vi) is disclosed by the Receiving Party with the Disclosing Party’s prior written approval.\n1.4 CONFIDENTIALITY PERIOD. “Confidentiality Period” means, (i) with respect to Confidential Information that is not Highly\nConfidential Information, five (5) years, and (ii) with respect to Highly Confidential Information, in perpetuity, after either (A) the Separation Date\nwith respect to Confidential Information of the Disclosing Party that is known to or in the possession of the Receiving Party as of the Separation\nDate or (B) the date of disclosure with respect to Confidential Information that is disclosed by the Disclosing Party to the Receiving Party after the\nSeparation Date.\n1.5 DISCLOSING PARTY. “Disclosing Party” means the party owning or disclosing the relevant Confidential Information.\n1.6 HIGHLY CONFIDENTIAL INFORMATION . “Highly Confidential Information” means Confidential Information that is source code for\nproducts that are commercially released or for which substantial steps have been taken to commercialization, and personally identifiable information\nregarding customers and employees.\n1.7 MASTER SEPARATION AGREEMENT. “Master Separation Agreement” means that certain Master Separation Agreement between Palm\nand PalmSource.\n-2-\n1.8 PERSON. “Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a\ntrust, a joint venture, an unincorporated organization, and a governmental entity or any department, agency or political subdivision thereof.\n1.9 RECEIVING PARTY. “Receiving Party” means the non-owning party or recipient of the relevant Confidential Information.\n1.10 SEPARATION DATE . “Separation Date” means 12:01 a.m., Pacific Time, December 3, 2001, or such other date as may be fixed by the\nBoard of Directors of Palm.\n1.11 SUBSIDIARY. “Subsidiary” of any Person means a corporation or other organization, whether incorporated or unincorporated, of which\nat least a majority of the securities or interests having by the terms thereof ordinary voting power to elect at least a majority of the board of directors\nor others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such\nPerson or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries; provided, however, that no Person that is not\ndirectly or indirectly wholly-owned by any other Person shall be a Subsidiary of such other Person unless such other Person controls, or has the\nright, power or ability to control, that Person. For purposes of this Agreement, PalmSource shall be deemed not to be a subsidiary of Palm.\n1.12 THIRD PARTY. “Third Party” means a Person other than Palm and its Subsidiaries or PalmSource and its Subsidiaries.\n1.13 TRANSACTION AGREEMENTS . “Transaction Agreements” means the Master Separation Agreement and the Ancillary Agreements\nbetween Palm and PalmSource, but does not include the following agreements between Palm and PalmSource: Software License Agreement and\nElaine Software License Agreement, each effective as of December 3, 2001 and under which PalmSource licenses to Palm certain operating system\nand server software and related products.\nARTICLE 2\nCONFIDENTIALITY\n2.1 CONFIDENTIALITY AND NON -USE OBLIGATIONS . During the Confidentiality Period, the Receiving Party shall (i) protect the\nConfidential Information of the Disclosing Party by using the same degree of care, but no less than a reasonable degree of care, to prevent the\nunauthorized use, dissemination, or publication of the Confidential Information as Receiving Party uses to protect its own confidential information\nof a like nature, (ii) not use such Confidential Information in violation of any use restriction in any Transaction Agreement, and (iii) not disclose\nsuch Confidential Information to any Third Party, except as expressly permitted under this Agreement, in the Transaction Agreements or in any other\nagreements entered into between the parties in writing, without prior written consent of the Disclosing Party.\n-3-\n2.2 DISCLOSURE TO SUBLICENSEES . The Receiving Party has the right to disclose to its sublicensees permitted under a Transaction\nAgreement portions of Confidential Information as reasonably necessary in the exercise of the Receiving Party’s sublicense rights under such\nTransaction Agreement, subject to the sublicensee’s agreement in writing to confidentiality and non-use terms at least as protective of the Disclosing\nParty as the provisions of this Agreement.\n2.3 CONTRACT MANUFACTURERS . The Receiving Party has the right to disclose to its contract manufacturers permitted under any\nTransaction Agreement portions of the Confidential Information as reasonably necessary in the exercise of the Receiving Party’s “have made” rights\nunder any Transaction Agreement, subject to the contract manufacturer ’s agreement in writing to confidentiality and non-use terms at least as\nprotective of the Disclosing Party as the provisions of this Agreement.\n2.4 RESIDUALS. Notwithstanding any other provision of this Agreement, the Receiving Party shall be free, and the Disclosing Party hereby\ngrants to the Receiving Party, except as otherwise provided in this Section 2.4, the right, to use or exploit for any purpose the Residuals resulting\nfrom access to or work with the Confidential Information of the Disclosing Party; provided however that the Receiving Party shall maintain the\nconfidentiality of the Confidential Information as required by this Agreement. “Residuals” means information retained in the unaided memories of\nindividuals who have had access to Confidential Information. The Receiving Party shall have no obligation to pay royalties for any use of Residuals.\nHowever, this Section 2.4 does not grant the Receiving Party any rights under any patents or copyrights of the Disclosing Party.\n2.5 COMPELLED DISCLOSURE . If the Receiving Party or any of its respective Subsidiaries believes that it will be compelled by a court or\nother authority to disclose Confidential Information of the Disclosing Party, it shall (i) give the Disclosing Party prompt written notice so that the\nDisclosing Party may take steps to oppose such disclosure, and (ii) cooperate with the Disclosing Party in its attempts to oppose such disclosure. If\nthe Receiving Party complies with the above, it shall not be prohibited from complying with such requirement to disclose, but shall take all\nreasonable steps to make such disclosure subject to a suitable protective order or otherwise prevent unrestricted or public disclosure.\n2.6 NO RESTRICTION ON DISCLOSING PARTY. Nothing in this Agreement shall restrict the Disclosing Party from using, disclosing, or\ndisseminating its own Confidential Information in any way.\n2.7 NO RESTRICTION ON REASSIGNMENT. This Agreement shall not restrict reassignment of the Receiving Party’s employees.\n2.8 THIRD PARTY RESTRICTIONS . Nothing in the Agreement supersedes any restriction imposed by Third Parties on their Confidential\nInformation, and there is no obligation on the Disclosing Party to conform Third Party agreements to the terms of this Agreement.\n-4-\nARTICLE 3\nWARRANTY DISCLAIMER\nEACH PARTY ACKNOWLEDGES AND AGREES THAT ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN “AS IS,\nWHERE IS” BASIS AND THAT NEITHER PARTY NOR ANY OF ITS SUBSIDIARIES HAS MADE OR WILL MAKE ANY WARRANTY\nWHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF\nMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ENFORCEABILITY OR NON-INFRINGEMENT.\nARTICLE 4\nCONFIDENTIALITY OF AGREEMENT\nEach party agrees that the terms and conditions of the Transaction Agreements marked as confidential shall be treated as Confidential\nInformation and that neither party will disclose such terms or conditions to any Third Party without the prior written consent of the other party,\nprovided, however, that each party may disclose such terms and conditions of such agreements marked as confidential:\n(a) as required by any court or other governmental body (subject to Section 2.5);\n(b) as otherwise required by law (subject to Section 2.5);\n(c) in confidence, to legal counsel of the parties, accountants, and other professional advisors;\n(d) in confidence to banks, investors and other financing sources and their advisors;\n(e) in connection with the enforcement of this Agreement or rights under this Agreement; or\n(f) in confidence, in connection with an actual or prospective merger or acquisition or similar transaction.\nARTICLE 5\nTERM AND TERMINATION\n5.1 TERM . This Agreement shall remain in full force and effect unless and until terminated by the mutual written agreement of the parties.\n-5-\n5.2 SURVIVAL . Articles 1, 2 (with respect to Confidential Information acquired or disclosed prior to the date of termination), 3, 4, 5.2, 6, and\n7 shall survive any termination of this Agreement.\nARTICLE 6\nDISPUTE RESOLUTION\n6.1 MEDIATION. If a dispute, controversy or claim (“Dispute”) arises between the parties relating to the interpretation or performance of this\nAgreement or the grounds for the termination hereof, appropriate senior executives (e.g . director or vice president level) of each party who shall\nhave the authority to resolve the matter shall meet to attempt in good faith to negotiate a resolution of the Dispute prior to pursuing other available\nremedies. The initial meeting between the appropriate senior executives shall be referred to herein as the “Dispute Resolution Commencement\nDate.” Discussions and correspondence relating to trying to resolve such Dispute shall be treated as confidential information developed for the\npurpose of settlement and shall be exempt from discovery or production and shall not be admissible. If the senior executives are unable to resolve the\nDispute within thirty (30) days from the Dispute Resolution Commencement Date, and either party wishes to pursue its rights relating to such\nDispute, then the Dispute will be mediated by a mutually acceptable mediator appointed pursuant to the mediation rules of JAMS/Endispute within\nthirty (30) days after written notice by one party to the other demanding non-binding mediation. Neither party may unreasonably withhold consent to\nthe selection of a mediator or the location of the mediation. Both parties will share the costs of the mediation equally, except that each party shall\nbear its own costs and expenses, including attorney’s fees, witness fees, travel expenses, and preparation costs. The parties may also agree to replace\nmediation with some other form of non-binding or binding Alternative Dispute Resolution (“ADR”).\n6.2 ARBITRATION . Any Dispute which the parties cannot resolve through mediation within ninety (90) days of the Dispute Resolution\nCommencement Date, unless otherwise mutually agreed, shall be submitted to final and binding arbitration under the then current Commercial\nArbitration Rules of the American Arbitration Association (“AAA”), by three (3) arbitrators in Santa Clara County, California. Such arbitrators shall\nbe selected by the mutual agreement of the parties or, failing such agreement, shall be selected according to the aforesaid AAA rules. The arbitrators\nwill be instructed to prepare and deliver a written, reasoned opinion stating their decision within thirty (30) days of the completion of the arbitration.\nThe prevailing party in such arbitration shall be entitled to expenses, including costs and reasonable attorneys’ and other professional fees, incurred\nin connection with the arbitration (but excluding any costs and fees associated with prior negotiation or mediation). The decision of the arbitrator\nshall be final and non-appealable and may be enforced in any court of competent jurisdiction. The use of any ADR procedures will not be construed\nunder the doctrine of laches, waiver or estoppel to adversely affect the rights of either party.\n6.3 COURT ACTION . Any Dispute regarding the following is not required to be negotiated, mediated or arbitrated prior to seeking relief from\na court of competent jurisdiction:\n-6-\nbreach of any obligation of confidentiality; infringement, misappropriation, or misuse of any intellectual property right; any other claim where\ninterim relief from the court is sought to prevent serious and irreparable injury to one of the parties or to others. However, the parties to the Dispute\nshall make a good faith effort to negotiate and mediate such Dispute, according to the above procedures, while such court action is pending.\n6.4 CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise agreed in writing, the parties will continue to provide service and\nhonor all other commitments under this Agreement and each Ancillary Agreement during the course of dispute resolution pursuant to the provisions\nof this Article 6 with respect to all matters not subject to such dispute, controversy or claim.\n6.5 RESOLUTION BY PALMSOURCE COMMITTEE . Notwithstanding the foregoing, while PalmSource remains a wholly-owned\nsubsidiary (excluding shares issued pursuant to PalmSource equity plans to officers, directors, employees and consultants of PalmSource), if,\npursuant to Section 6.1, the senior executives are unable to resolve the Dispute within thirty (30) days from the Dispute Resolution Commencement\nDate, and either party wishes to pursue its rights relating to such Dispute, then in lieu of mediation or subsequent remedy contemplated by Section\n6.2-6.3, the Dispute will be submitted to the PalmSource Committee for resolution (which committee shall consist of the CEO of Palm, the CEO of\nPalmSource and the Chairman of the Board of Palm, or such other composition as is mutually acceptable to Palm and PalmSource).\nARTICLE 7\nMISCELLANEOUS PROVISIONS\n7.1 EXPORT RESTRICTIONS. Both parties shall adhere to all applicable laws, regulations and rules relating to the export of technical data,\nand shall not export or reexport any technical data, any products received from Disclosing Party, or the direct product of such technical data, to any\nproscribed country listed in such applicable laws, regulations and rules unless properly authorized.\n7.2 NO IMPLIED LICENSES. Nothing contained in this Agreement shall be construed as conferring any rights by implication, estoppel or\notherwise, under any intellectual property right, other than the rights expressly granted in this Agreement with respect to Confidential Information.\nNeither party is required hereunder to furnish or disclose to the other any technical or other information.\n7.3 INFRINGEMENT SUITS . Neither party shall have any obligation hereunder to institute any action or suit against Third Parties for\nmisappropriation of any of its Confidential Information or to defend any action or suit brought by a Third Party that alleges infringement of any\nintellectual property rights by the Receiving Party’s authorized use of the Disclosing Party’s Confidential Information.\n-7-\n7.4 NO OTHER OBLIGATIONS . NEITHER PARTY ASSUMES ANY RESPONSIBILITIES OR OBLIGATIONS WHATSOEVER, OTHER\nTHAN THE RESPONSIBILITIES AND OBLIGATIONS EXPRESSLY SET FORTH IN THIS AGREEMENT OR A SEPARATE WRITTEN\nAGREEMENT BETWEEN THE PARTIES.\n7.5 ENTIRE AGREEMENT. This Agreement, the Master Separation Agreement and the other Ancillary Agreements and the Exhibits and\nSchedules referenced or attached hereto and thereto constitute the entire agreement between the parties with respect to the subject matter hereof and\nthereof and shall supersede all prior written and oral and all contemporaneous oral agreements and understandings with respect to the subject matter\nhereof and thereof. Notwithstanding the foregoing, the parties agree that any agreements entered into between them after the Separation Date for the\nprotection of specific Confidential Information shall supersede the terms of this Agreement with respect to such Confidential Information.\n7.6 GOVERNING LAW. This Agreement shall be construed in accordance with and all Disputes hereunder shall be governed by the laws of\nthe State of California, excluding its conflict of law rules and the United Nations Convention on Contracts for the International Sale of Goods. The\nSuperior Court of Santa Clara County and/or the United States District Court for the Northern District of California shall have jurisdiction and venue\nover all Disputes between the parties that are permitted to be brought in a court of law pursuant to Section 6 above.\n7.7 DESCRIPTIVE HEADINGS. The headings contained in this Agreement, in any Exhibit hereto and in the table of contents to this\nAgreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any capitalized term\nused in any Exhibit but not otherwise defined therein, shall have the meaning assigned to such term in this Agreement. When a reference is made in\nthis Agreement to an Article or a Section or an Exhibit, such reference shall be to an Article or Section of, or an Exhibit to, this Agreement unless\notherwise indicated.\n7.8 NOTICES. Notices, offers, requests or other communications required or permitted to be given by either party pursuant to the terms of this\nAgreement shall be given in writing to the respective parties to the following addresses:\niftoPalm:\nPalm, Inc.\n5470 Great America Parkway\nSanta Clara, California 95054\nAttention: General Counsel\nif to PalmSource:\nPalmSource, Inc.\n5470 Great America Parkway\nSanta Clara, California 95054\nAttention: Chief Executive Officer\n-8-\nor to such other address as the party to whom notice is given may have previously furnished to the other in writing as provided herein. Any notice\ninvolving non-performance, termination, or renewal shall be sent by hand delivery, recognized overnight courier or, within the United States, may\nalso be sent via certified mail, return receipt requested. All other notices may also be sent by fax, confirmed by first class mail. All notices shall be\ndeemed to have been given and received on the earlier of actual delivery or three (3) days from the date of postmark.\n7.9 NONASSIGNABILITY. Neither party may, directly or indirectly, in whole or in part, whether by operation of law or otherwise, assign or\ntransfer this Agreement, without the other party’s prior written consent, and any attempted assignment, transfer or delegation without such prior\nwritten consent shall be voidable at the sole option of such other party. Notwithstanding the foregoing, each party (or its permitted successive\nassignees or transferees hereunder) may assign or transfer this Agreement as a whole without consent to a Person that succeeds to all or substantially\nall of the business or assets of such party as long as such Person agrees to accept all the terms and conditions set forth herein. Without limiting the\nforegoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.\n7.10 SEVERABILITY. If any term or other provision of this Agreement or the Exhibits attached hereto is determined by a court,\nadministrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and\nprovisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions\ncontemplated hereby is not affected in any manner materially adverse to either party. Upon such determination that any term or other provision is\ninvalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original\nintent of the parties as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the fullest extent\npossible.\n7.11 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure or delay on the part of either party hereto in the\nexercise of any right hereunder shall impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation,\nwarranty or agreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right.\nAll rights and remedies existing under this Agreement or the Exhibits attached hereto are cumulative to, and not exclusive of, any rights or remedies\notherwise available.\n7.12 AMENDMENT. No change or amendment will be made to this Agreement or the Exhibits attached hereto except by an instrument in\nwriting signed on behalf of each of the parties to such agreement.\n7.13 COUNTERPARTS. This Agreement, including the Ancillary Agreements and the Exhibits and Schedules hereto and thereto and the other\ndocuments referred to herein or therein, may be executed in counterparts, each of which shall be deemed to be an original but all of which shall\nconstitute one and the same agreement.\n-9-\nWHEREFORE, the parties have signed this Master Confidential Disclosure Agreement effective as of the Effective Date.\nPALM, INC.\nPALMSOURCE, INC.\nBy:\n/s/ JUDY BRUNER\nBy:\n/s/ DAVID C. NAGEL\nName:\nJudy Bruner\nName:\nDavid Nagel\nTitle:\nChief Financial Officer\nTitle:\nChief Executive Officer\n- 10-
+d057b548c04b38628cef0a3c655f4557.pdf	effective_date jurisdiction party term	EX-10 2 exhibit101.txt EXHIBIT 10.1 PARKER EXHIBIT 10.1 AMENDED AND RESTATED COVENANT NOT TO\nCOMPETE AND NON-DISCLOSURE AGREEMENT PARTIES: Mark G. Parker (Employee) NIKE, Inc., and its\nparent, divisions, subsidiaries and affiliates (NIKE) DATE: July 24, 2008 RECITALS: A. Employee and NIKE are\nparties to a Covenant Not to Compete and Non-Disclosure Agreement dated as of February 28, 2006 (the "Prior\nAgreement"). The Prior Agreement was executed upon the Employee's advancement to the position of President and\nChief Executive Officer of NIKE and was a condition of such advancement. In order to comply with the provisions of\nSection 409A of the Internal Revenue Code of 1986 and thereby avoid the tax penalties to Employee that would result\nfrom failure to comply, Employee and NIKE wish to amend and restate the Prior Agreement in the form of this Amended\nand Restated Covenant Not to Compete and Non-Disclosure Agreement (the "Amended and Restated Agreement"). As\nmore fully described in paragraph 8.5 below, Employee agrees that the Prior Agreement remains in full force and effect\nand was entered into upon a bona fide advancement. B. Over the course of Employee's employment with NIKE,\nEmployee will be or has been exposed to and is in a position to develop confidential information peculiar to NIKE's\nbusiness and not generally known to the public as defined below ("Protected Information"). It is anticipated that\nEmployee will continue to be exposed to Protected Information of greater sensitivity as Employee advances in the\ncompany. C. The nature of NIKE's business is highly competitive and disclosure of any Protected Information would\nresult in severe damage to NIKE and be difficult to measure. D . NIKE makes use of its Protected Information throughout\nthe world. Protected Information of NIKE can be used to NIKE's detriment anywhere in the world. AGREEMENT: In\nconsideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows: 1. Covenant\nNot to Compete. _______________________ 1.1 Competition Restriction. During Employee's employment by\n_______________________\nNIKE, under the terms of any employment contract or otherwise, and for twenty-four (24)\nmonths thereafter, (the "Restriction Period"), Employee will not directly or indirectly, own, manage, control, or\nparticipate in the ownership, management or control of, or be employed by, consult for, or be connected in any manner\nwith, any business engaged anywhere in the world in the athletic footwear, athletic apparel or sports equipment and\naccessories business, or any other business which directly competes with NIKE or any of its parent, subsidiaries or\naffiliated corporations ("Competitor"). By way of illustration only, examples of NIKE competitors include but are not\nlimited to: Adidas, FILA, Reebok, Puma, Asics, Saucony, New Balance, Skechers, KSwiss, Merrell, Timberland,\nChampion, Russell, Oakley, DKNY, Ralph Lauren/Polo Sport, B.U.M ., FUBU, The Gap, Tommy Hilfiger, Umbro, The\nNorth Face, Foot Locker, The Sports Authority, Finish Line, Columbia Sportswear, Wilson, Mizuno, Callaway Golf,\nAcushnet, and Taylor Made. This provision is subject to NIKE's option to waive all or any portion of the Restriction\nPeriod as more specifically provided below. 1.2 Extension of Time. In the event that Employee breaches this\n_________________\ncovenant not to compete, the Restriction Period shall automatically toll from the date of the first\nbreach, and all subsequent breaches, until the resolution of the breach through private settlement, judicial or other action,\nincluding all appeals. The Restriction Period shall continue upon the effective date of any such settlement, judicial or\nother resolution. NIKE shall not be obligated to pay Employee the additional compensation described in paragraph 1.4\nbelow for any period of time in which this Amended and Restated Agreement is tolled due to Employee's breach. In the\nevent Employee receives such additional compensation for any such breach, Employee must immediately reimburse\nNIKE in the amount of all such compensation upon the receipt of a written request by NIKE. 1.3 Waiver of Non-\nCompete. NIKE has the option to elect to waive _____________________ all or a portion of the Restriction Period or to\nlimit the definition of Competitor, by giving Employee seven (7) days prior notice of such election; provided, however,\nunless Employee is terminated "for cause" (which shall only include continual and repeated neglect of duties or acts of\ndishonesty), any waiver of the Restriction Period must be with the consent of Employee. In the event all or a portion of\nthe Restriction Period is waived, NIKE shall not be obligated to pay Employee for any period of time as to which the\nCovenant Not to Compete has been waived. 1.4 Additional Consideration. __ ______________________ (a) As\nadditional consideration for the Covenant Not To Compete described above, should NIKE terminate Employee's\nemployment and the Covenant Not To Compete is enforced, NIKE shall (subject to subparagraph (b) below) pay\nEmployee a monthly payment equal to one- twelfth (1/12) of Employee's then current Annual NIKE Income (defined\nherein to mean base salary and annual Performance Sharing Plan bonus calculated at 100% of Employee's last targeted\nrate) while the Restriction Period is in effect. If Employee voluntarily terminates employment and the Covenant Not To\nCompete is enforced, NIKE shall (subject to subparagraph (b) below) pay Employee a monthly payment equal to one-\ntwenty-fourth (1/24) of Employee's then current Annual NIKE Income while the Restriction Period is in effect. (b)\nSection 409A of the Internal Revenue Code requires that the monthly payments to Employee set forth in subparagraph\n(a) above may not commence until six months after Employee's "separation from service" as defined in Treasury\nRegulations (Section) 1.409A -1(h). Failure to follow this requirement will result in substantial tax penalties to\nEmployee. Accordingly, the commencement of these payments will be delayed until after the six-month period following\nEmployee's separation from service in order to comply with Section 409A and avoid tax penalties for Employee. All\npayments that Employee would otherwise have received before the date that is six months after Employee's separation\nfrom service will be accumulated by NIKE and paid to Employee in a lump sum promptly following the end of the six-\nmonth period, together with interest at a fluctuating rate per annum equal to the prime rate as published from time to\ntime in The Wall Street Journal on these delayed payments from the date otherwise payable under subparagraph (a) until\nthe date actually paid. 2. Subsequent Employer. Employee agrees to notify NIKE at the ___________________ time of\nseparation of employment of the name of Employee's new employer, if known. Employee further agrees to disclose to\nNIKE the name of any subsequent employer during the Restriction Period, wherever located and regardless of whether\nsuch employer is a competitor of NIKE. 3. Non-Disclosure Agreement. ________________________ 3.1 Protectable\nInformation Defined. "Protected Information" _______________________________ shall mean all proprietary\ninformation, in whatever form and format, of NIKE and all information provided to NIKE by third parties which NIKE\nis obligated to keep confidential. Employee agrees that any and all information to which Employee has access\nconcerning NIKE projects and internal NIKE information is Protected Information, whether in verbal form, machine-\nreadable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting the\nforegoing, Protected Information includes information relating to NIKE's research and development activities, its\nintellectual property and the filing or pendency of patent applications, trade secrets, confidential techniques, methods,\nstyles, designs, design concepts and ideas, customer and vendor lists, contract factory lists, pricing information,\nmanufacturing plans, business and marketing plans, sales and futures information, non-public financial information,\nmethods of operation, manufacturing processes and methods, products, and personnel information. 3.2 Excluded\nInformation. Notwithstanding paragraph 3.1, ____________________ Protected Information excludes any information\nthat is or becomes part of the public domain through no act or failure to act on the part of the Employee. Specifically,\nemployees shall be permitted to retain as part of their personal portfolio copies of the employees' original artwork and\ndesigns, provided the artwork or designs have become part of the public domain. In any dispute between the parties with\nrespect to this exclusion, the burden of proof will be on Employee and such proof will be by clear and convincing\nevidence. 3.3 Employee's Obligations. During the period of employment by ______________________ NIKE and for a\nperiod of two (2) years thereafter, Employee will hold in confidence and protect all Protected Information and will not, at\nany time, directly or indirectly, use and Protected Information for any purpose outside the scope of Employee's\nemployment with NIKE or disclose any Protected Information to any third person or organization without the prior\nwritten consent of NIKE. Specifically, but not by way of limitation, Employee will not ever copy, transmit, reproduce,\nsummarize, quote, publish or make any commercial or other use whatsoever of any Protected Information without the\nprior written consent of NIKE. Employee will also take reasonable security precautions and such other actions as may be\nnecessary to insure that there is no use or disclosure, intentional or inadvertent, of Protected Information in violation of\nthis Amended and Restated Agreement. 4. Return of Protected Information. At the request of NIKE at\n_______________________________\nany time, and in any event, upon termination of employment, Employee shall\nimmediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other\nsimilar repositories of or containing Protected Information, and all copies thereof, then in Employee's possession or\nunder Employee's control. 5. Unauthorized Use. During the period of employment with NIKE ________________ and\nthereafter, Employee will notify NIKE immediately if Employee becomes aware of the unauthorized possession, use or\nknowledge of any Protected Information by any person employed or not employed by NIKE at the time of such\npossession, use or knowledge. Employee will cooperate with NIKE in the investigation of any such incident and will\ncooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information.\nNIKE shall provide reasonable reimbursement to Employee for each hour so engaged and that amount shall not be\ndiminished by operation of any payment under paragraph 1.4 of this Amended and Restated Agreement. 6. Non-\nRecruitment. During the term of this Amended and _______________ Restated Agreement and for a period of one (1)\nyear thereafter, Employee will not directly or indirectly, solicit, divert or hire away (or attempt to solicit, divert or hire\naway) to or for himself or any other company or business organization, any NIKE employee, whether or not such\nemployee is a full-time employee or temporary employee and whether or not such employment is pursuant to a written\nagreement or is at will. 7. Accounting of Profits. Employee agrees that, if Employee _____________________ should\nviolate any term of this Amended and Restated Agreement, NIKE shall be entitled to an accounting and repayment of all\nprofits, compensation, commissions, remuneration or benefits which Employee directly or indirectly has realized and/or\nmay realize as a result of or in connection with any such violation (including return of any additional consideration paid\nby NIKE pursuant to paragraph 1.4 above). Such remedy shall be in addition to and not in limitation of any injunctive\nrelief or other rights or remedies to which NIKE may be entitled at law or in equity. 8. General Provisions.\n__________________\n8.1 Survival. This Amended and Restated Agreement shall ________ continue in effect after the\ntermination of Employee's employment, regardless of the reason for termination. 8.2 Waiver. No waiver, amendment,\nmodification or cancellation ______ of any term or condition of this Amended and Restated Agreement will be effective\nunless executed in writing by both parties. No written waiver will excuse the performance of any act other than the act or\nacts specifically referred to therein. 8.3 Severability. Each provision herein will be treated as a ____________ separate\nand independent clause and unenforceability of any one clause will in no way impact the enforceability of any other\nclause. Should any of the provisions in this Amended and Restated Agreement be found to be unreasonable or invalid by\na court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of\nthat jurisdiction. 8.4 Applicable Law and Jurisdiction. This Amended and Restated\n_______________________________\nAgreement, and Employee's employment hereunder, shall be construed according\nto the laws of the State of Oregon. Employee further hereby submits to the jurisdiction of, and agrees that exclusive\njurisdiction over and venue for any action or proceeding arising out of or relating to this Amended and Restated\nAgreement shall lie in the state and federal courts located in Oregon. 8.5 Prior Agreement Remains Fully Valid and\nEnforceable. This ___________________________________________________ Amended and Restated Agreement\ndoes not supersede the Prior Agreement except to the extent that the terms of this Amended and Restated Agreement\nconflict with the terms of the Prior Agreement, in which case the terms of this Amended and Restated Agreement shall\ncontrol. Other than with respect to the terms that conflict with this Amended and Restated Agreement, the terms of the\nPrior Agreement remain fully valid and enforceable. Employee /s/ Mark G. Parker By:\n_______________________________\nName: Mark G. Parker NIKE, Inc. /s/ Philip H. Knight By:\n_______________________________\nName: Philip H. Knight Title: Chairman of the Board	EX-10 2 exhibit101.txt EXHIBIT 10.1 PARKER EXHIBIT 10.1 AMENDED AND RESTATED COVENANT NOT TO\nCOMPETE AND NON-DISCLOSURE AGREEMENT PARTIES: Mark G. Parker (Employee) NIKE, Inc., and its\nparent, divisions, subsidiaries and affiliates (NIKE) DATE: July 24, 2008 RECITALS: A. Employee and NIKE are\nparties to a Covenant Not to Compete and Non-Disclosure Agreement dated as of February 28, 2006 (the "Prior\nAgreement"). The Prior Agreement was executed upon the Employee's advancement to the position of President and\nChief Executive Officer of NIKE and was a condition of such advancement. In order to comply with the provisions of\nSection 409A of the Internal Revenue Code of 1986 and thereby avoid the tax penalties to Employee that would result\nfrom failure to comply, Employee and NIKE wish to amend and restate the Prior Agreement in the form of this Amended\nand Restated Covenant Not to Compete and Non-Disclosure Agreement (the "Amended and Restated Agreement"). As\nmore fully described in paragraph 8.5 below, Employee agrees that the Prior Agreement remains in full force and effect\nand was entered into upon a bona fide advancement. B. Over the course of Employee's employment with NIKE,\nEmployee will be or has been exposed to and is in a position to develop confidential information peculiar to NIKE's\nbusiness and not generally known to the public as defined below ("Protected Information"). It is anticipated that\nEmployee will continue to be exposed to Protected Information of greater sensitivity as Employee advances in the\ncompany. C. The nature of NIKE's business is highly competitive and disclosure of any Protected Information would\nresult in severe damage to NIKE and be difficult to measure. D. NIKE makes use of its Protected Information throughout\nthe world. Protected Information of NIKE can be used to NIKE's detriment anywhere in the world. AGREEMENT: In\nconsideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows: 1. Covenant\nNot to Compete. 1.1 Competition Restriction. During Employee's employment by\nNIKE, under the terms of any employment contract or otherwise, and for twenty-four (24)\nmonths thereafter, (the "Restriction Period"), Employee will not directly or indirectly, own, manage, control, or\nparticipate in the ownership, management or control of, or be employed by, consult for, or be connected in any manner\nwith, any business engaged anywhere in the world in the athletic footwear, athletic apparel or sports equipment and\naccessories business, or any other business which directly competes with NIKE or any of its parent, subsidiaries or\naffiliated corporations ("Competitor"). By way of illustration only, examples of NIKE competitors include but are not\nlimited to: Adidas, FILA, Reebok, Puma, Asics, Saucony, New Balance, Skechers, KSwiss, Merrell, Timberland,\nChampion, Russell, Oakley, DKNY, Ralph Lauren/Polo Sport, B.U.M., FUBU, The Gap, Tommy Hilfiger, Umbro, The\nNorth Face, Foot Locker, The Sports Authority, Finish Line, Columbia Sportswear, Wilson, Mizuno, Callaway Golf,\nAcushnet, and Taylor Made. This provision is subject to NIKE's option to waive all or any portion of the Restriction\nPeriod as more specifically provided below. 1.2 Extension of Time. In the event that Employee breaches this\ncovenant not to compete, the Restriction Period shall automatically toll from the date of the first\nbreach, and all subsequent breaches, until the resolution of the breach through private settlement, judicial or other action,\nincluding all appeals. The Restriction Period shall continue upon the effective date of any such settlement, judicial or\nother resolution. NIKE shall not be obligated to pay Employee the additional compensation described in paragraph 1.4\nbelow for any period of time in which this Amended and Restated Agreement is tolled due to Employee's breach. In the\nevent Employee receives such additional compensation for any such breach, Employee must immediately reimburse\nNIKE in the amount of all such compensation upon the receipt of a written request by NIKE. 1.3 Waiver of Non-\nCompete. NIKE has the option to elect to waive all or a portion of the Restriction Period or to\nlimit the definition of Competitor, by giving Employee seven (7) days prior notice of such election; provided, however,\nunless Employee is terminated "for cause" (which shall only include continual and repeated neglect of duties or acts of\ndishonesty), any waiver of the Restriction Period must be with the consent of Employee. In the event all or a portion of\nthe Restriction Period is waived, NIKE shall not be obligated to pay Employee for any period of time as to which the\nCovenant Not to Compete has been waived. 1.4 Additional Consideration. (a) As\nadditional consideration for the Covenant Not To Compete described above, should NIKE terminate Employee's\nemployment and the Covenant Not To Compete is enforced, NIKE shall (subject to subparagraph (b) below) pay\nEmployee a monthly payment equal to one- twelfth (1/12) of Employee's then current Annual NIKE Income (defined\nherein to mean base salary and annual Performance Sharing Plan bonus calculated at 100% of Employee's last targeted\nrate) while the Restriction Period is in effect. If Employee voluntarily terminates employment and the Covenant Not To\nCompete is enforced, NIKE shall (subject to subparagraph (b) below) pay Employee a monthly payment equal to one-\ntwenty-fourth (1/24) of Employee's then current Annual NIKE Income while the Restriction Period is in effect. (b)\nSection 409A of the Internal Revenue Code requires that the monthly payments to Employee set forth in subparagraph\n(a) above may not commence until six months after Employee's "separation from service" as defined in Treasury\nRegulations (Section) 1.409A-1(h). Failure to follow this requirement will result in substantial tax penalties to\nEmployee. Accordingly, the commencement of these payments will be delayed until after the six-month period following\nEmployee's separation from service in order to comply with Section 409A and avoid tax penalties for Employee. All\npayments that Employee would otherwise have received before the date that is six months after Employee's separation\nfrom service will be accumulated by NIKE and paid to Employee in a lump sum promptly following the end of the six-\nmonth period, together with interest at a fluctuating rate per annum equal to the prime rate as published from time to\ntime in The Wall Street Journal on these delayed payments from the date otherwise payable under subparagraph (a) until\nthe date actually paid. 2. Subsequent Employer. Employee agrees to notify NIKE at the time of\nseparation of employment of the name of Employee's new employer, if known. Employee further agrees to disclose to\n \n \n \n \nNIKE the name of any subsequent employer during the Restriction Period, wherever located and regardless of whether\nsuch employer is a competitor of NIKE. 3. Non-Disclosure Agreement. 3.1 Protectable\nInformation Defined. "Protected Information" shall mean all proprietary\ninformation, in whatever form and format, of NIKE and all information provided to NIKE by third parties which NIKE\nis obligated to keep confidential. Employee agrees that any and all information to which Employee has access\nconcerning NIKE projects and internal NIKE information is Protected Information, whether in verbal form, machine-\nreadable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting the\nforegoing, Protected Information includes information relating to NIKE's research and development activities, its\nintellectual property and the filing or pendency of patent applications, trade secrets, confidential techniques, methods,\nstyles, designs, design concepts and ideas, customer and vendor lists, contract factory lists, pricing information,\nmanufacturing plans, business and marketing plans, sales and futures information, non-public financial information,\nmethods of operation, manufacturing processes and methods, products, and personnel information. 3.2 Excluded\nInformation. Notwithstanding paragraph 3.1, Protected Information excludes any information\nthat is or becomes part of the public domain through no act or failure to act on the part of the Employee. Specifically,\nemployees shall be permitted to retain as part of their personal portfolio copies of the employees' original artwork and\ndesigns, provided the artwork or designs have become part of the public domain. In any dispute between the parties with\nrespect to this exclusion, the burden of proof will be on Employee and such proof will be by clear and convincing\nevidence. 3.3 Employee's Obligations. During the period of employment by NIKE and for a\nperiod of two (2) years thereafter, Employee will hold in confidence and protect all Protected Information and will not, at\nany time, directly or indirectly, use and Protected Information for any purpose outside the scope of Employee's\nemployment with NIKE or disclose any Protected Information to any third person or organization without the prior\nwritten consent of NIKE. Specifically, but not by way of limitation, Employee will not ever copy, transmit, reproduce,\nsummarize, quote, publish or make any commercial or other use whatsoever of any Protected Information without the\nprior written consent of NIKE. Employee will also take reasonable security precautions and such other actions as may be\nnecessary to insure that there is no use or disclosure, intentional or inadvertent, of Protected Information in violation of\nthis Amended and Restated Agreement. 4. Return of Protected Information. At the request of NIKE at\nany time, and in any event, upon termination of employment, Employee shall\nimmediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other\nsimilar repositories of or containing Protected Information, and all copies thereof, then in Employee's possession or\nunder Employee's control. 5. Unauthorized Use. During the period of employment with NIKE and\nthereafter, Employee will notify NIKE immediately if Employee becomes aware of the unauthorized possession, use or\nknowledge of any Protected Information by any person employed or not employed by NIKE at the time of such\npossession, use or knowledge. Employee will cooperate with NIKE in the investigation of any such incident and will\ncooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information.\nNIKE shall provide reasonable reimbursement to Employee for each hour so engaged and that amount shall not be\ndiminished by operation of any payment under paragraph 1.4 of this Amended and Restated Agreement. 6. Non-\nRecruitment. During the term of this Amended and Restated Agreement and for a period of one (1)\nyear thereafter, Employee will not directly or indirectly, solicit, divert or hire away (or attempt to solicit, divert or hire\naway) to or for himself or any other company or business organization, any NIKE employee, whether or not such\nemployee is a full-time employee or temporary employee and whether or not such employment is pursuant to a written\nagreement or is at will. 7. Accounting of Profits. Employee agrees that, if Employee should\nviolate any term of this Amended and Restated Agreement, NIKE shall be entitled to an accounting and repayment of all\nprofits, compensation, commissions, remuneration or benefits which Employee directly or indirectly has realized and/or\nmay realize as a result of or in connection with any such violation (including return of any additional consideration paid\nby NIKE pursuant to paragraph 1.4 above). Such remedy shall be in addition to and not in limitation of any injunctive\nrelief or other rights or remedies to which NIKE may be entitled at law or in equity. 8. General Provisions.\n8.1 Survival. This Amended and Restated Agreement shall continue in effect after the\ntermination of Employee's employment, regardless of the reason for termination. 8.2 Waiver. No waiver, amendment,\nmodification or cancellation of any term or condition of this Amended and Restated Agreement will be effective\nunless executed in writing by both parties. No written waiver will excuse the performance of any act other than the act or\nacts specifically referred to therein. 8.3 Severability. Each provision herein will be treated as a separate\nand independent clause and unenforceability of any one clause will in no way impact the enforceability of any other\nclause. Should any of the provisions in this Amended and Restated Agreement be found to be unreasonable or invalid by\na court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of\nthat jurisdiction. 8.4 Applicable Law and Jurisdiction. This Amended and Restated\nAgreement, and Employee's employment hereunder, shall be construed according\nto the laws of the State of Oregon. Employee further hereby submits to the jurisdiction of, and agrees that exclusive\njurisdiction over and venue for any action or proceeding arising out of or relating to this Amended and Restated\nAgreement shall lie in the state and federal courts located in Oregon. 8.5 Prior Agreement Remains Fully Valid and\nEnforceable. This Amended and Restated Agreement\ndoes not supersede the Prior Agreement except to the extent that the terms of this Amended and Restated Agreement\nconflict with the terms of the Prior Agreement, in which case the terms of this Amended and Restated Agreement shall\n \n \n \n \n \n \n \ncontrol. Other than with respect to the terms that conflict with this Amended and Restated Agreement, the terms of the\nPrior Agreement remain fully valid and enforceable. Employee /s/ Mark G. Parker By:\nName: Mark G. Parker NIKE, Inc. /s/ Philip H. Knight By:\nName: Philip H. Knight Title: Chairman of the Board	EX-10 2 exhibit EXHIBIT 10.1 PARKER EXHIBIT 10.1 AMENDED AND RESTATED COVENANT NOT TO\nCOMPETE AND NON-DISCLOSURE AGREEMENT PARTIES: Mark G. Parker (Employee) NIKE, Inc., and its\nparent, divisions, subsidiaries and affiliates (NIKE) DATE: July 24, 2008 RECITALS: A. Employee and NIKE are\nparties to a Covenant Not to Compete and Non-Disclosure Agreement dated as of February 28, 2006 (the "Prior\nAgreement") The Prior Agreement was executed upon the Employee's advancement to the position of President and\nChief Executive Officer of NIKE and was a condition of such advancement In order to comply with the provisions of\nSection 409A of the Internal Revenue Code of 1986 and thereby avoid the tax penalties to Employee that would result\nfrom failure to comply, Employee and NIKE wish to amend and restate the Prior Agreement in the form of this Amended\nand Restated Covenant Not to Compete and Non-Disclosure Agreement (the "Amended and Restated Agreement"). As\nmore fully described in paragraph 8.5 below, Employee agrees that the Prior Agreement remains in full force and effect\nand was entered into upon a bona fide advancement. B. Over the course of Employee's employmen with NIKE,\nEmployee will be or has been exposed to and is in a position to develop confidential information peculiar to NIKE's\nbusiness\nand\nnot\ngenerally\nknown\nto\nthe\npublic\nas\ndefined\nbelow\n("Protected\nInformation").\nIt\nis\nanticipated\nthat\nEmployee will continue to be exposed to Protected Information of greater sensitivity as Employee advances in the\ncompany. C. The nature of NIKE's business is highly competitive and disclosure of any Protected Information would\nresult in severe damage to NIKE and be difficult to measure. D. NIKE makes use of its Protected Information throughout\nthe world. Protected Information of NIKE can be used to NIKE's detriment anywhere in the world. AGREEMENT: In\nconsideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows: 1. Covenant\nNot to Compete.\n1.1 Competition Restriction. During Employee's employment by\nNIKE, under the terms of any employment contract or otherwise, and for twenty-four (24)\nmonths thereafter, (the "Restriction Period"), Employee will not directly or indirectly, own, manage, control, or\nparticipate in the ownership, management or control of, or be employed by, consult for, or be connected in any manner\nwith, any business engaged anywhere in the world in the athletic footwear, athletic apparel or sports equipment and\naccessories business, or any other business which directly competes with NIKE or any of its parent, subsidiaries or\naffiliated corporations ("Competitor") By way of illustration only, examples of NIKE competitors include but are not\nlimited to: Adidas, FILA, Reebok, Puma, Asics, Saucony, New Balance, Skechers, KSwiss, Merrell, Timberland,\nChampion, Russell, Oakley, DKNY, Ralph Lauren/Polo Sport, B.U.M., FUBU, The Gap, Tommy Hilfiger, Umbro, The\nNorth Face, Foot Locker, The Sports Authority, Finish Line, Columbia Sportswear Wilson, Mizuno, Callaway Golf,\nAcushnet, and Taylor Made. This provision is subject to NIKE's option to waive all or any portion of the Restriction\nPeriod as more specifically provided below. 1.2 Extension of Time. In the event that Employee breaches this\ncovenant not to compete, the Restriction Period shall automatically toll from the date of the first\nbreach, and all subsequent breaches, until the resolution of the breach through private settlement, judicial or other action,\nincluding all appeals The Restriction Period shall continue upon the effective date of any such settlement, judicial or\nother resolution. NIKE shall not be obligated to pay Employee the additional compensation described in paragraph\n1.4\nbelow for any period of time in which this Amended and Restated Agreement is tolled due to Employee's breach. In the\nevent\nEmployee receives such additional compensation for any such breach, Employee must immediately reimburse\nNIKE in the amount of all such compensation upon the receipt of a written request by NIKE. 1.3 Waiver of Non-\nCompete. NIKE has the option to elect to waive\nall or a portion of the Restriction Period or to\nlimit the definition of Competitor, by giving Employee seven (7) days prior notice of such election; provided, however,\nunless Employee is terminated "for cause" (which shall only include continual and repeated neglect of duties or acts of\ndishonesty), any waiver of the Restriction Period must be with the consent of Employee. In the event all or a portion of\nthe Restriction Period is waived, NIKE shall not be obligated to pay Employee for any period of time as to which the\nCovenant Not to Compete has been waived. 1.4 Additional Consideration.\n(a) As\nadditional consideration for the Covenant Not To Compete described above, should NIKE terminate Employee's\nemployment and the Covenant Not To Compete is enforced, NIKE shall (subject to subparagraph (b) below) pay\nEmployee a monthly payment equal to one- twelfth (1/12) of Employee's then current Annual NIKE Income (defined\nherein to mean base salary and annual Performance Sharing Plan bonus calculated at 100% of Employee's last targeted\nrate) while the Restriction Period is in effect. If Employee voluntarily terminates employment and the Covenant Not\nTo\nCompete\nis\nenforced,\nNIKE\nshall\n(subject\nto\nsubparagraph\n(b)\nbelow)\npay\nEmployee\na\nmonthly\npayment\nequal\nto\none-\ntwenty-fourth (1/24) of Employee's then current Annual NIKE Income while the Restriction Period is in effect. (b)\nSection 409A of the Internal Revenue Code requires that the monthly payments to Employee set forth in subparagraph\n(a) above may not commence until six months after Employee's "separation from service" as defined in Treasury\nRegulations (Section) 1.409A-1(h). Failure to follow this requirement will result in substantial tax penalties to\nEmployee. Accordingly, the commencement of these payments will be delayed until after the six-month period following\nEmployee's separation from service in order to comply with Section 409A and avoid tax penalties for Employee. All\npayments that Employee would otherwise have received before the date that is six months after Employee's separation\nfrom service will be accumulated by NIKE and paid to Employee in a lump sum promptly following the end of the six-\nmonth period, together with interest at a fluctuating rate per annum equal to the prime rate as published from time\nto\ntime in The Wall Street Journal on these delayed payments from the date otherwise payable under subparagraph (a) until\nthe date actually paid. 2. Subsequent Employer. Employee agrees to notify NIKE at the\ntime of\nseparation of employment of the name of Employee's new employer, if known. Employee further agrees to disclose\nto\nNIKE the name of any subsequent employer during the Restriction Period, wherever located and regardless of whether\nsuch employer is a competitor of NIKE. 3. Non-Disclosure Agreement\n3.1 Protectable\nInformation Defined. "Protected Information"\nshall mean all proprietary\ninformation, in whatever form and format, of NIKE and all information provided to NIKE by third parties which NIKE\nis obligated to keep confidential. Employee agrees that any and all information to which Employee has access\nconcerning NIKE projects and internal NIKE information is Protected Information, whether in verbal form, machine-\nreadable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting the\nforegoing, Protected Information includes information relating to NIKE's research and development activities, its\nintellectual property and the filing or pendency of patent applications, trade secrets, confidential techniques, methods,\nstyles, designs, design concepts and ideas, customer and vendor lists, contract factory lists, pricing information,\nmanufacturing plans, business and marketing plans, sales and futures information, non-public financial information,\nmethods of operation, manufacturing processes and methods, products, and personnel information. 3.2 Excluded\nInformation. Notwithstanding paragraph 3.1,\nProtected Information excludes any information\nthat is or becomes part of the public domain through no act or failure to act on the part of the Employee Specifically,\nemployees shall be permitted to retain as part of their personal portfolio copies of the employees' original artwork and\ndesigns,\nprovided the artwork or designs have become part of the public domain. In any dispute between the parties with\nrespect to this exclusion, the burden of proof will be on Employee and such proof will be by clear and convincing\nevidence. 3.3 Employee's Obligations. During the period of employment by\nNIKE and for a\nperiod of two (2) years thereafter Employee will hold in confidence and protect all Protected Information and will not, at\nany time, directly or indirectly, use and Protected Information for any purpose outside the scope of Employee's\nemployment with NIKE or disclose any Protected Information to any third person or organization without the prior\nwritten consent of NIKE. Specifically, but not by way of limitation, Employee will not ever copy, transmit, reproduce,\nsummarize, quote, publish or make any commercial or other use whatsoever of any Protected Information without the\nprior written consent of NIKE. Employee will also take reasonable security precautions and such other actions as may be\nnecessary to insure that there is no use or disclosure, intentional or inadvertent, of Protected Information in violation of\nthis Amended and Restated Agreement. 4. Return of Protected Information. At the request of NIKE at\nany time, and in any event, upon termination of employment, Employee shall\nimmediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other\nsimilar repositories of or containing Protected Information, and all copies thereof, then in Employee's possession or\nunder Employee's control. 5. Unauthorized Use. During the period of employment with NIKE and\nthereafter, Employee will notify NIKE immediately if Employee becomes aware of the unauthorized possession, use\nor\nknowledge of any Protected Information by any person employed or not employed by NIKE at the time of such\npossession, use or knowledge. Employee will cooperate with NIKE in the investigation of any such incident and will\ncooperate\nwith NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information\nNIKE shall provide reasonable reimbursement to Employee for each hour so engaged and that amount shall not be\ndiminished by operation of any payment under paragraph 1.4 of this Amended and Restated Agreement. 6. Non-\nRecruitment. During the term of this Amended and\nRestated Agreement and for a period of one (1)\nyear thereafter, Employee will not directly or indirectly, solicit, divert or hire away (or attempt to solicit, divert or hire\naway) to or for himself or any other company or business organization, any NIKE employee, whether or not such\nemployee is a full-time employee or temporary employee and whether or not such employment is pursuant to a written\nagreement or is at will. 7. Accounting of Profits. Employee agrees that, if Employee\nshould\nviolate any term of this Amended and Restated Agreement, NIKE shall be entitled to an accounting and repayment of\nall\nprofits, compensation, commissions, remuneration or benefits which Employee directly or indirectly has realized and/or\nmay realize as a result of or in connection with any such violation (including return of any additional consideration paid\nby NIKE pursuant to paragraph 1.4 above). Such remedy shall be in addition to and not in limitation of any injunctive\nrelief or other rights or remedies to which NIKE may be entitled at law or in equity. 8. General Provisions.\n8.1 Survival. This Amended and Restated Agreement shall\ncontinue in effect after the\ntermination of Employee's employment, regardless of the reason for termination 8.2 Waiver. No waiver, amendment,\nmodification or cancellation of any term or condition of this Amended and Restated Agreement will be effective\nunless executed in writing by both parties. No written waiver will excuse the performance of any act other than the act\nor\nacts specifically referred to therein. 8.3 Severability. Each provision herein will be treated as a\nseparate\nand independent clause and unenforceability of any one clause will in no way impact the enforceability of any other\nclause. Should any of the provisions in this Amended and Restated Agreement be found to be unreasonable or invalid by\na court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of\nthat jurisdiction. 8.4 Applicable Law and Jurisdiction. This Amended and Restated\nAgreement, and Employee's employment hereunder, shall be construed according\nto the laws of the State of Oregon. Employee further hereby submits to the jurisdiction of, and agrees that exclusive\njurisdiction over and venue for any action or proceeding arising out of or relating to this Amended and Restated\nAgreement shall lie in the state and federal courts located in Oregon. 8.5 Prior Agreement Remains Fully Valid and\nEnforceable. This\nAmended and Restated Agreement\ndoes not supersede the Prior Agreement except to the extent that the terms of this Amended and Restated Agreement\nconflict with the terms of the Prior Agreement, in which case the terms of this Amended and Restated Agreement shall\ncontrol. Other than with respect to the terms that conflict with this Amended and Restated Agreement, the terms of the\nPrior Agreement remain fully valid and enforceable. Employee /s/ Mark G. Parker By:\nName: Mark G. Parker NIKE, Inc. /s/ Philip H. Knight By:\nName: Philip H. Knight Title: Chairman of the Board	EX-10 2 exhibit101.txt EXHIBIT 10.1 PARKER EXHIBIT 10.1 AMENDED AND RESTATED COVENANT NOT TO\nCOMPETE AND NON-DISCLOSURE AGREEMENT PARTIES: Mark G. Parker (Employee) NIKE, Inc., and its\nparent, divisions, subsidiaries and affiliates (NIKE) DATE: July 24, 2008 RECITALS: A. Employee and NIKE are\nparties to a Covenant Not to Compete and Non-Disclosure Agreement dated as of February 28, 2006 (the "Prior\nAgreement"). The Prior Agreement was executed upon the Employee's advancement to the position of President and\nChief Executive Officer of NIKE and was a condition of such advancement. In order to comply with the provisions of\nSection 409A of the Internal Revenue Code of 1986 and thereby avoid the tax penalties to Employee that would result\nfrom failure to comply, Employee and NIKE wish to amend and restate the Prior Agreement in the form of this Amended\nand Restated Covenant Not to Compete and Non-Disclosure Agreement (the "Amended and Restated Agreement"). As\nmore fully described in paragraph 8.5 below, Employee agrees that the Prior Agreement remains in full force and effect\nand was entered into upon a bona fide advancement. B. Over the course of Employee's employment with NIKE,\nEmployee will be or has been exposed to and is in a position to develop confidential information peculiar to NIKE's\nbusiness and not generally known to the public as defined below ("Protected Information"). It is anticipated that\nEmployee will continue to be exposed to Protected Information of greater sensitivity as Employee advances in the\ncompany. C. The nature of NIKE's business is highly competitive and disclosure of any Protected Information would\nresult in severe damage to NIKE and be difficult to measure. D . NIKE makes use of its Protected Information throughout\nthe world. Protected Information of NIKE can be used to NIKE's detriment anywhere in the world. AGREEMENT: In\nconsideration of the foregoing, and the terms and conditions set forth below, the parties agree as follows: 1. Covenant\nNot to Compete. _______________________ 1.1 Competition Restriction. During Employee's employment by\n_______________________\nNIKE, under the terms of any employment contract or otherwise, and for twenty-four (24)\nmonths thereafter, (the "Restriction Period"), Employee will not directly or indirectly, own, manage, control, or\nparticipate in the ownership, management or control of, or be employed by, consult for, or be connected in any manner\nwith, any business engaged anywhere in the world in the athletic footwear, athletic apparel or sports equipment and\naccessories business, or any other business which directly competes with NIKE or any of its parent, subsidiaries or\naffiliated corporations ("Competitor"). By way of illustration only, examples of NIKE competitors include but are not\nlimited to: Adidas, FILA, Reebok, Puma, Asics, Saucony, New Balance, Skechers, KSwiss, Merrell, Timberland,\nChampion, Russell, Oakley, DKNY, Ralph Lauren/Polo Sport, B.U.M ., FUBU, The Gap, Tommy Hilfiger, Umbro, The\nNorth Face, Foot Locker, The Sports Authority, Finish Line, Columbia Sportswear, Wilson, Mizuno, Callaway Golf,\nAcushnet, and Taylor Made. This provision is subject to NIKE's option to waive all or any portion of the Restriction\nPeriod as more specifically provided below. 1.2 Extension of Time. In the event that Employee breaches this\n_________________\ncovenant not to compete, the Restriction Period shall automatically toll from the date of the first\nbreach, and all subsequent breaches, until the resolution of the breach through private settlement, judicial or other action,\nincluding all appeals. The Restriction Period shall continue upon the effective date of any such settlement, judicial or\nother resolution. NIKE shall not be obligated to pay Employee the additional compensation described in paragraph 1.4\nbelow for any period of time in which this Amended and Restated Agreement is tolled due to Employee's breach. In the\nevent Employee receives such additional compensation for any such breach, Employee must immediately reimburse\nNIKE in the amount of all such compensation upon the receipt of a written request by NIKE. 1.3 Waiver of Non-\nCompete. NIKE has the option to elect to waive _____________________ all or a portion of the Restriction Period or to\nlimit the definition of Competitor, by giving Employee seven (7) days prior notice of such election; provided, however,\nunless Employee is terminated "for cause" (which shall only include continual and repeated neglect of duties or acts of\ndishonesty), any waiver of the Restriction Period must be with the consent of Employee. In the event all or a portion of\nthe Restriction Period is waived, NIKE shall not be obligated to pay Employee for any period of time as to which the\nCovenant Not to Compete has been waived. 1.4 Additional Consideration. __ ______________________ (a) As\nadditional consideration for the Covenant Not To Compete described above, should NIKE terminate Employee's\nemployment and the Covenant Not To Compete is enforced, NIKE shall (subject to subparagraph (b) below) pay\nEmployee a monthly payment equal to one- twelfth (1/12) of Employee's then current Annual NIKE Income (defined\nherein to mean base salary and annual Performance Sharing Plan bonus calculated at 100% of Employee's last targeted\nrate) while the Restriction Period is in effect. If Employee voluntarily terminates employment and the Covenant Not To\nCompete is enforced, NIKE shall (subject to subparagraph (b) below) pay Employee a monthly payment equal to one-\ntwenty-fourth (1/24) of Employee's then current Annual NIKE Income while the Restriction Period is in effect. (b)\nSection 409A of the Internal Revenue Code requires that the monthly payments to Employee set forth in subparagraph\n(a) above may not commence until six months after Employee's "separation from service" as defined in Treasury\nRegulations (Section) 1.409A -1(h). Failure to follow this requirement will result in substantial tax penalties to\nEmployee. Accordingly, the commencement of these payments will be delayed until after the six-month period following\nEmployee's separation from service in order to comply with Section 409A and avoid tax penalties for Employee. All\npayments that Employee would otherwise have received before the date that is six months after Employee's separation\nfrom service will be accumulated by NIKE and paid to Employee in a lump sum promptly following the end of the six-\nmonth period, together with interest at a fluctuating rate per annum equal to the prime rate as published from time to\ntime in The Wall Street Journal on these delayed payments from the date otherwise payable under subparagraph (a) until\nthe date actually paid. 2. Subsequent Employer. Employee agrees to notify NIKE at the ___________________ time of\nseparation of employment of the name of Employee's new employer, if known. Employee further agrees to disclose to\nNIKE the name of any subsequent employer during the Restriction Period, wherever located and regardless of whether\nsuch employer is a competitor of NIKE. 3. Non-Disclosure Agreement. ________________________ 3.1 Protectable\nInformation Defined. "Protected Information" _______________________________ shall mean all proprietary\ninformation, in whatever form and format, of NIKE and all information provided to NIKE by third parties which NIKE\nis obligated to keep confidential. Employee agrees that any and all information to which Employee has access\nconcerning NIKE projects and internal NIKE information is Protected Information, whether in verbal form, machine-\nreadable form, written or other tangible form, and whether designated as confidential or unmarked. Without limiting the\nforegoing, Protected Information includes information relating to NIKE's research and development activities, its\nintellectual property and the filing or pendency of patent applications, trade secrets, confidential techniques, methods,\nstyles, designs, design concepts and ideas, customer and vendor lists, contract factory lists, pricing information,\nmanufacturing plans, business and marketing plans, sales and futures information, non-public financial information,\nmethods of operation, manufacturing processes and methods, products, and personnel information. 3.2 Excluded\nInformation. Notwithstanding paragraph 3.1, ____________________ Protected Information excludes any information\nthat is or becomes part of the public domain through no act or failure to act on the part of the Employee. Specifically,\nemployees shall be permitted to retain as part of their personal portfolio copies of the employees' original artwork and\ndesigns, provided the artwork or designs have become part of the public domain. In any dispute between the parties with\nrespect to this exclusion, the burden of proof will be on Employee and such proof will be by clear and convincing\nevidence. 3.3 Employee's Obligations. During the period of employment by ______________________ NIKE and for a\nperiod of two (2) years thereafter, Employee will hold in confidence and protect all Protected Information and will not, at\nany time, directly or indirectly, use and Protected Information for any purpose outside the scope of Employee's\nemployment with NIKE or disclose any Protected Information to any third person or organization without the prior\nwritten consent of NIKE. Specifically, but not by way of limitation, Employee will not ever copy, transmit, reproduce,\nsummarize, quote, publish or make any commercial or other use whatsoever of any Protected Information without the\nprior written consent of NIKE. Employee will also take reasonable security precautions and such other actions as may be\nnecessary to insure that there is no use or disclosure, intentional or inadvertent, of Protected Information in violation of\nthis Amended and Restated Agreement. 4. Return of Protected Information. At the request of NIKE at\n_______________________________\nany time, and in any event, upon termination of employment, Employee shall\nimmediately return to NIKE all confidential documents, including tapes, notebooks, drawings, computer disks and other\nsimilar repositories of or containing Protected Information, and all copies thereof, then in Employee's possession or\nunder Employee's control. 5. Unauthorized Use. During the period of employment with NIKE ________________ and\nthereafter, Employee will notify NIKE immediately if Employee becomes aware of the unauthorized possession, use or\nknowledge of any Protected Information by any person employed or not employed by NIKE at the time of such\npossession, use or knowledge. Employee will cooperate with NIKE in the investigation of any such incident and will\ncooperate with NIKE in any litigation with third parties deemed necessary by NIKE to protect the Protected Information.\nNIKE shall provide reasonable reimbursement to Employee for each hour so engaged and that amount shall not be\ndiminished by operation of any payment under paragraph 1.4 of this Amended and Restated Agreement. 6. Non-\nRecruitment. During the term of this Amended and _______________ Restated Agreement and for a period of one (1)\nyear thereafter, Employee will not directly or indirectly, solicit, divert or hire away (or attempt to solicit, divert or hire\naway) to or for himself or any other company or business organization, any NIKE employee, whether or not such\nemployee is a full-time employee or temporary employee and whether or not such employment is pursuant to a written\nagreement or is at will. 7. Accounting of Profits. Employee agrees that, if Employee _____________________ should\nviolate any term of this Amended and Restated Agreement, NIKE shall be entitled to an accounting and repayment of all\nprofits, compensation, commissions, remuneration or benefits which Employee directly or indirectly has realized and/or\nmay realize as a result of or in connection with any such violation (including return of any additional consideration paid\nby NIKE pursuant to paragraph 1.4 above). Such remedy shall be in addition to and not in limitation of any injunctive\nrelief or other rights or remedies to which NIKE may be entitled at law or in equity. 8. General Provisions.\n__________________\n8.1 Survival. This Amended and Restated Agreement shall ________ continue in effect after the\ntermination of Employee's employment, regardless of the reason for termination. 8.2 Waiver. No waiver, amendment,\nmodification or cancellation ______ of any term or condition of this Amended and Restated Agreement will be effective\nunless executed in writing by both parties. No written waiver will excuse the performance of any act other than the act or\nacts specifically referred to therein. 8.3 Severability. Each provision herein will be treated as a ____________ separate\nand independent clause and unenforceability of any one clause will in no way impact the enforceability of any other\nclause. Should any of the provisions in this Amended and Restated Agreement be found to be unreasonable or invalid by\na court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of\nthat jurisdiction. 8.4 Applicable Law and Jurisdiction. This Amended and Restated\n_______________________________\nAgreement, and Employee's employment hereunder, shall be construed according\nto the laws of the State of Oregon. Employee further hereby submits to the jurisdiction of, and agrees that exclusive\njurisdiction over and venue for any action or proceeding arising out of or relating to this Amended and Restated\nAgreement shall lie in the state and federal courts located in Oregon. 8.5 Prior Agreement Remains Fully Valid and\nEnforceable. This ___________________________________________________ Amended and Restated Agreement\ndoes not supersede the Prior Agreement except to the extent that the terms of this Amended and Restated Agreement\nconflict with the terms of the Prior Agreement, in which case the terms of this Amended and Restated Agreement shall\ncontrol. Other than with respect to the terms that conflict with this Amended and Restated Agreement, the terms of the\nPrior Agreement remain fully valid and enforceable. Employee /s/ Mark G. Parker By:\n_______________________________\nName: Mark G. Parker NIKE, Inc. /s/ Philip H. Knight By:\n_______________________________\nName: Philip H. Knight Title: Chairman of the Board
+d2cedafb5d6fc0a7a2f4693f652606ef.pdf	effective_date jurisdiction party term	EX-10 .5 8 v374814_ex10-5 .htm EXHIBIT 10.5\nCONFIDENTIAL SALES REPRESENTATION AND\nNON-CIRCUMVENTION/NON-DISCLOSURE AGREEMENT\nThis Agreement (“Agreement”), dated April 7, 2014, will constitute a Sales Representation, Non-Circumvention and Non-Disclosure Agreement\nby and between Integrated Drilling Equipment Holdings Corp. (“IDE”) (hereinafter referred to as “Company”) and Offshore and Marine\nHoldings LLC (the “Representative”).\nRECITALS:\nWHEREAS, Company designs, manufactures, sells and/or leases oil and gas drilling rigs and related equipment; and\nWHEREAS, the Representative is the former Chief Executive Officer of Company, a member of the board of directors of the Company and\ncurrently assists in the marketing and sale of drilling equipment; and\nWHEREAS, the Company wishes to appoint and the Representative agrees to accept appointment as an independent sales and marketing\nconsultant for all products and services manufactured or otherwise provided by the Company; and\nWHEREAS, each Party is willing to furnish Confidential Information (as defined below) to the other Party in connection with and subject to the\nterms and conditions of this Agreement; and\nWHEREAS, in order to facilitate the Company’s business in the Areas covered by this Agreement, Representative is willing to introduce\nCompany to the customers;\nNOW, THEREFORE, for and in consideration of the foregoing and the covenants and agreements set forth in this Agreement, the Parties,\nintending to be legally bound, do hereby agree as follows:.\n1. Products covered by the Agreement (“Products”).\nA. Complete drilling rig packages and systems.\nB. Drilling rig component products manufactured by the Company including, but not limited to, Mast, Drawworks, Substructures,\nMud Pumps, Rotary Tables, SCR Drive Systems, AC VFD Systems, Equipment Installations, Fabrication, and other products and\nservices provided and manufactured by the Company.\n2. Areas covered by the Agreement (“Area”).\nA. Representative will have non-exclusive rights for the Area defined in Appendix A of this Agreement, except for specific accounts\nor areas specifically excluded by the Company which may be added or subtracted from Appendix A from time to time by the\nCompany in its sole discretion. Any exceptions or exclusions will be identified by the Company and notified to the Representative\nin writing. However, any specific projects or sales opportunities introduced by the Representative to the Company will become the\nexclusive property of the Representative until cancelled by mutual agreement of Representative and Company.\nB. Conflicts. In areas that may be assigned to and covered by a different representative, the Company will attempt to advise the\nRepresentative of any potential conflict and reduce potential conflicts.\n3. Services.\nThe Representative and Company agree that the Services are to be performed by the Representative acting solely as an independent\ncontractor on behalf of the Company. The parties agree that the Representative will provide the following minimum Services for the\nCompany, all at the direction and request of the Company:\nA. Obtain information relating to the requirements of customers for the Company’s Products.\nB. Advise, assist and consult with the Company in the proper preparation and submittal of Company’s response to any tenders or other requests\nfor the sale or lease of Products.\nC. Advise, assist and consult with the Company with respect to negotiations relating to the award of a contract for the purchase or lease of\nProducts.\nD. Provide general advice and counsel as well as specific assistance pertaining to local matters which would affect the execution of the contract,\naward and performance of the work relating to the contract.\nE. Assist the Company, to the extent possible, with help in order to Secure necessary permits, bonds and guarantees including, but not limited\nto, customs, importation and exportation permits for the Products and related equipment required by the contract as well as any other local\ngovernmental permits necessary or desirable in connection with importation, operation and exportation of the Products in or from the area\ndefined in Appendix A ( cost of the permit, bond or guarantee fees actually incurred is for the account of Company).\nF. Assist in obtaining any work permits required for local or foreign personnel to work in the Territory to perform any contract. Any associated\ncost will be reimbursed to the Representative by the Company.\n2\nG. Provide assistance and services in dealing with representatives of the customers and their affiliates.\nH. Provide such assistance and advice as may be reasonably requested by Company relating to facilitating communications between the\nCompany and the customers throughout the term of any contracts.\nI. Notify the Company of any additional potential projects or sales or leases of Products for the customers.\nJ. Provide such other services as Company may reasonably determine from time to time may be necessary or helpful in connection with its\noperations relating to the contracts.\nK. Assist the Company and the Customer to establish payment terms for any Products that are agreeable to the Company and the customer.\nL. Assist in collection of payments and amounts due from customer and assist in resolving any disputes relating thereto.\n4. Commission payment and terms.\nA. The Company agrees to pay the Representative a commission of 1%, based upon the final net selling price of any products and\nservices by the Company to a Customer, denominated and payable in U.S. Dollars, as set forth in Appendix B of this Agreement for\nspecific projects. Typically, the commission will be set by Company for each project and will be based upon the net sales price of\nany Products sold, by the Company to a customer. For the avoidance of doubt, the net selling price will be exclusive of any\nshipping/freight charges, insurance, interest, travel and living expenses, taxes or other similar costs reimbursed to the Company.\nCompany reserves the right to set a specific commission basis for each project.\nB. Reduction of commissions. In certain cases, it may be necessary for the Company to reduce the selling price in order to obtain an\norder. In this event, the Company and the Representative both agree to a proportional reduction of the commission proportional to\nthe reduction in selling price.\nC. Excess commissions. In some cases, the Representative may have an opportunity to earn more than the basic commission as\ndefined in Appendix B. In these cases, the Representative and the Company will agree upon any excess compensation in advance of\nthe sale or lease. The Company reserves the right to set any (or no) specific excess commission.\n3\nD. Payment of commissions. Payment of commissions will be paid on a pro-rata basis to the Representative based on the payment\nterms accepted by the Company from the end user/customer. All commissions will be paid to the Representative within ten (10)\ndays after receipt of the Customer’s payment by the Company.\nE. Cancellations. In cases of cancellations, the Company will be under no obligation to pay unearned commissions to the\nRepresentative except for payments received by the Company that are not refunded to the end user/customer. In cases where\ncancellations require a refund of payments made to the Company, the Representative agrees to refund any commissions received\nfrom the Company that have been paid by the Company to the Representative associated with such refund of payments.\nF. Restricted Customers. The Representative shall not be entitled to commissions for any sales by the Company to (i) any customers to\nwhich the Company has made sales of any kind during the two-year period ending on the date hereof or (ii) the customers set forth\non Appendix C (the “Restricted Customers”) even in the event that the Representative, directly or indirectly, facilitates or assists in\nsuch sales. Prior to contacting any customer, the Representative shall notify the Company that he intends to contact such customer\nand shall only contact such customer with the prior written consent of the Company.\n5. Acceptance of sales/contracts.\nThe Company is the sole authority for accepting or rejecting any prospective sales brought in by the Representative. The Representative\nhas no authority to contractually or otherwise bind the Company in any manner. The Representative shall not be permitted to quote\nprices that deviate from the Company’s current price list without the prior written approval of the Chief Executive Officer and the Chief\nFinancial Officer of the Company.\n6. Expenses.\nThe Representative and the Company each agree to pay its own expenses incurred in the normal course of business and in execution of\nthis contract, unless agreed otherwise in writing or in this Agreement.\n7. Product Representation.\nThe Representative hereby agrees to represent the Company and the Products and Services provided by the Company and not to\nrepresent products or enter into a representation relationship which would compete with the Products and Services that are the subject of\nthis Agreement, provided that the Representative shall be free to sell used drilling equipment and other used products, provided further\nthat the Company shall have a right of first refusal to engage in any refurbishment-related work on used equipment or products sold by\nthe Representative.\n4\n8. Taxes.\nEach party shall pay their own sales, use, franchise, income or other taxes.\n9. Documentation, sales and marketing and other assistance.\nThe Company will provide the Representative with all marketing data necessary including drawings, literature, contract preparation,\nquality assurance/quality control manuals and other sales, marketing and engineering as necessary and reasonably required by the\nRepresentative in the normal course of business of representing the Company. The Company will assist the Representative with all\nreasonable requests for assistance from the sales, engineering, production or other departments of the Company, on the same basis as the\nCompany provides such support for all of its sales representatives.\n10. General Business Ethics.\nA. The Representative represents and warrants that it is familiar with relevant laws in the assigned Area, and that neither the receipt of\nfees under this Agreement nor the performance by the Company or the Representative of obligations and Services under this\nAgreement is in any respect a violation of applicable laws, rules, orders, prohibitions, or regulations in the assigned Area. The\nRepresentative shall comply in all respects with all applicable laws in the assigned Area dealing with bribery and corruption, as\nmay be amended from time to time.\nB. The Representative has not and will not offer, promise or provide any thing of value, directly or indirectly, to any Government\nOfficial, or any other person or entity, for the purpose of influencing any decision, action or inaction in order to secure or maintain\nan improper advantage in connection with or relating to the subject matter of this Agreement or any supplement or amendment\nhereto, or in order to direct an improper advantage to any other person or entity or otherwise act in violation of the Foreign Corrupt\nPractices Act (the “FCPA”) of the United States of America. The offer, promise or provision of any thing of value proscribed by\nthis paragraph is a “Prohibited Payment.”\nC.\n“Government Official,” as that term is used throughout this Article 10, includes any official, employee or representative of any\ngovernment (or agency, instrumentality, or company owned or controlled by any government), any political party or employee\nthereof, or any candidate for political office.\n5\nD. If the Representative receives a request for a Prohibited Payment in connection with or relating to the subject matter of this\nAgreement or any supplement or amendment hereto, then the Company must be notified immediately.\nE. The Representative agrees and certifies that it is familiar with, is in compliance with, and will continue to comply strictly with all\napplicable anti-corruption laws and regulations and will not engage in or support any occurrence of bribery or other corrupt\npractices.\nF. The Representative shall not do business with any person or third-party entity where it knows or suspects the existence of any\nillegal, unethical or questionable practices by such person or third-party entity, its officers, employees or agents.\nG. All financial transactions by Representative hereunder shall be recorded in a timely, complete and accurate manner in accordance\nwith generally accepted accounting principles consistently applied. Representative invoices and supporting documentation, as well\nas all other documents and accounting entries, shall not be false, fictitious or intentionally misleading in any way. The\nRepresentative shall sufficiently document all payments and keep appropriate receipts. The Representative shall make available to\nthe Company any invoices or records corresponding to such payments at the Company’s request upon reasonable notice.\nH. The Company shall have reasonable access to the Representative’s books and records pertaining to activities for or on behalf of the\nCompany, and the right to audit these records on demand. The Company may elect to designate a third party to conduct such an\naudit. The Company may, inspect the Representative’s premises. The Representative shall fully cooperate in any due diligence or\naudit conducted by or on behalf of the Company. Any associated cost will be for the account of The Company.\nI. Upon its discovery of a breach of any of the representations and warranties, or any other provision of this Agreement, the\nRepresentative shall immediately report such breach to the Company.\nJ. The Representative shall notify the Company if, at any time during the course of this Agreement, the Representative becomes\naware of any change of circumstances that could materially impact the Representative’s performance under this Agreement.\n6\n11. Compliance with FCPA\nA. The Representative represents and warrants that, in connection with the business to be conducted under this Agreement, no\npayment has been made, and no payment will be made, by Representative or by any of its officers, employees, agents or subsidiary\nor affiliated companies to any officer, official or employee (or to any agent or other person acting on behalf of such a person) of any\nnation, national company or political Party in violation of the Foreign Corrupt Practices Act (the "FCPA") of the United States of\nAmerica that prohibits payment or giving of anything of value, either directly or indirectly, by an American company to an official\nof a foreign government for the purpose of influencing an act or decision in his or her official capacity, or inducing that official to\nuse his or her influence with the foreign government, to assist a company in obtaining or retaining business for, or with, or directing\nbusiness to, any person. The Representative further represents and warrants that it shall not undertake any action which is in\nviolation of the anti-bribery provision of the OECD. This Agreement shall automatically terminate without notice upon Company\nlearning of any violation of this clause, and the Company shall have no further obligations to amounts owing, or otherwise, under\nthis Agreement from and after the date of said violation. Furthermore, the Representative agrees to defend, indemnity and hold the\nCompany harmless from and against any claims, actions or causes of action for damages, fines, penalties, (including interest\nthereon and attorney fees) arising out of any violation of this clause. At the request of Company or at least annually, the\nRepresentative shall provide a certification in a form substantially similar to Schedule 1, attached to and incorporated herein by\nreference.\nB. Company warrants that it will not knowingly request any service from Representative, which might constitute a violation of the\napplicable laws of The United States of America or any national or local government having jurisdiction over the Parties, and no\nofficer or employee of Company has authority to give directions to Representative, which is contrary to the laws of The United\nStates of America or any national or local government having jurisdiction over the Parties.\n12. Conformity with Local Laws\nEach Party agrees to comply with all applicable laws, orders, regulations, directions, restrictions and limitations of the governments\n(“Laws”) having jurisdiction of the Parties hereto and over the Services. Each Party agrees to defend, indemnify and hold the other\nParty harmless from and against any claims, actions or causes of actions for damages, penalties, fines or otherwise (including interest\nthereon and attorney fees) for their respective violation of the Laws.\n7\n13. Representations of Representative\nThe Representative represents and warrants to the Company that:\n(a)\nThe Representative (i) is a corporation or limited liability company duly organized, validly existing and in good standing under\nthe laws of the jurisdiction of its incorporation; (ii) has its principal place of business located at its address set forth on the\nsignature page hereof; (iii) has all requisite corporate or other power, and has all material governmental licenses,\nauthorizations, consents and approvals necessary to own its assets and carry on its business as now being or as proposed to be\nconducted; and (iv) is qualified to do business and is in good standing in all jurisdictions in which the services required to be\nperformed by it under this Agreement make such qualifications necessary.\n(b)\nThere are no legal or arbitral proceedings or any proceedings by or before any governmental or regulatory authority or agency,\nnow pending or (to the knowledge of the Representative) threatened against the Representative which, if adversely determined,\ncould (either individually or in the aggregate) have a Material Adverse Effect (as hereafter defined). For purposes hereof, the\nterm “Material Adverse Effect” means a material adverse effect on (i) the ability of the Representative to perform its services\nhereunder, (ii) the validity or enforceability of this Agreement, or (iii) the rights and remedies of the Company hereunder.\n(c)\nThe Parties have all necessary corporate and other power, authority and legal right to execute, deliver and perform their\nrespective obligations hereunder; the execution, delivery and performance by the Parties of this Agreement have been duly\nauthorized by all necessary corporate and other action on their part; and this Agreement has been duly and validly executed by\nthe Representative and Company and constitutes its legal, valid and binding obligation, enforceable against the Parties in\naccordance with its terms.\n14. Non-disclosure agreement.\nA Party receiving Confidential Information may also be referred to herein as a “Recipient,” and a Party disclosing Confidential\nInformation may also be referred to herein as a “Discloser.”\n8\nAs used in this Agreement, “Confidential Information” shall mean information, technical data or know-how disclosed by Discloser or\nany of Discloser’s employees, agents, affiliates, contractors or representatives (each a “Discloser Representative” and collectively, the\n“Discloser Representatives”) to Recipient or any of Recipient’s employees, agents, affiliates, contractors or representatives (each a\n“Recipient Representative” and collectively, the “Recipient Representatives”), including, but not limited to: customer/supplier lists and\nidentities, agreements, characteristics, formulations, specifications, sales and marketing information, sales, figures, pricing and cost\ninformation, marketing plans and business plans, forecasts, financial information, budgets, databases, computer programs, software\n(whether in object or source code), research papers, projections, practices, procedures, processes, routines, formulae, trade secrets,\nideas, innovations, inventions, technology, manufacturing know-how, machinery, drawings, photographs, equipment, devices, tools,\ndiscoveries, improvements, research or development and test results, data, formats, plans, sketches, models, any intellectual property,\npatents, trademarks, and copyrights and applications therefore, all rights and information necessary to produce and market Discloser’s\nproducts or to conduct the business of Discloser as currently conducted, or which pertains in any manner to subjects or knowledge of\nDiscloser’s business or operation, or the information, tangible or intangible, owned, developed or possessed by Discloser, whether or not\nmarked as “confidential,” and any other information or procedures that are treated as confidential by Discloser or its affiliates, suppliers\nor customers. Confidential Information shall include all such information that has been or may hereafter be provided, shown to, or\nreviewed by Recipient or any Recipient Representative, irrespective of the manner in which such information is communicated, and also\nincludes all notes, analyses, compilations, studies, summaries and other material prepared by Recipient or any Recipient Representative\ncontaining or based, in whole or in part, on any information included in any of the foregoing. Confidential Information also includes\ninformation of third parties in possession of Discloser that Discloser is obligated to maintain in confidence. Confidential Information\nsubject to this Agreement may be in intangible form, such as unrecorded knowledge, ideas or conceptions or information communicated\norally or by visual observation, or may be embodied in tangible form, such as a document. For purposes of this Agreement, the term\n“document” includes written memoranda, drawings, training materials, specifications, notebook entries, photographs, graphic\nrepresentations, firmware, computer information or software, information communicated by other electronic or magnetic media, or\nmodels.\nA. Notwithstanding the provisions of this Section 11 of the Agreement or any other provision of this Agreement, Confidential\nInformation” shall not include any of the following, even if marked or designated “Confidential”:\ni. Information that Recipient can substantiate was known by Recipient prior to disclosure by Discloser or any Discloser\nRepresentative to Recipient or any Recipient Representative under this Agreement;\nii. Information that was disclosed to Recipient or any Recipient Representative by a third party not known by Recipient to be\nunder an obligation of confidentiality with respect to such information;\niii. Information that is or becomes generally available to the public through no fault of Recipient or any Recipient\nRepresentative in breach of this Agreement;\n9\niv. Information required to be disclosed by judicial mandate or other requirement of applicable law, provided that Recipient\ncomplies with the provisions of Section 11.F. of this Agreement; or\nv. Information that is independently developed by Recipient or any Recipient Representative without use of or reference to\nany of Discloser ’s Confidential Information and without breach by Recipient or any Recipient Representative of any\nconfidentiality agreement or obligation to Discloser, as evidenced by Recipient’s written records.\nB. With respect to Confidential Information disclosed by Discloser or any Discloser Representative to Recipient or any Recipient\nRepresentative, Recipient shall, and shall cause each Recipient Representative to:\ni. receive, review, regard, preserve, hold and treat all Confidential Information as secret and confidential and to use its best\nefforts to prevent disclosure by any Recipient Representative, directly or indirectly, to any person or entity that does not\nreasonably need to know the Confidential Information for the specific purpose relating to the Services provided to the\nCompany or the Products;\nii. refrain from using any Confidential Information except for the limited purpose of furthering the Services to be provided\nrelated to the transactions for the Products;\niii. take all necessary and appropriate steps to maintain the confidentiality of any Confidential Information disclosed to\nRecipient or any Recipient Representative, including ensuring the confidentiality of any Confidential Information provided\nto the Recipient Representatives and any successors or assigns of any of them, including without limitation, entering into\nconfidentiality agreements with such persons or entities in a form substantially similar to this Agreement or other\nagreements pursuant to which such persons or entities agree to be bound by the terms and conditions of this Agreement as\nif such persons or entities were Recipient;\niv. Take all necessary and appropriate steps to prevent use of the Confidential Information in any way that would violate\nfederal or state securities or other applicable laws;\nv. Refrain from copying or duplicating, in any manner whatsoever except to the extent reasonably necessary for the\nfurtherance of the transactions involving the Products or as otherwise permitted herein, Confidential Information without\nthe express written permission of Discloser;\n10\nvi. Refrain from referring, orally or in writing, to Discloser or the Transactions in any press releases, promotional material,\npresentations to third parties (other than Discloser), in business resumes, or in any other information provided to third\nparties, without the prior written consent of Discloser;\nvii. Refrain from discussing or referring to any findings, conclusions, recommendations or the underlying data thereof with\nany third party (other than Discloser) arising out of any Confidential Information or the transactions involving the Products\nor the Services provided to the Company, without the prior written consent of Discloser;\nviii. Use the Confidential Information solely for the purpose of furthering the Transactions and not to use any of the\nConfidential Information for the benefit of any person or entity other than Discloser without the prior written consent of\nDiscloser; and\nix. With respect to any equipment, component, software or other items sold, leased, loaned or otherwise delivered by\nDiscloser or any Discloser Representative to Recipient or any Recipient Representative in connection with the Services or\nthe Products, refrain from reverse engineering, disassembling, decompiling or otherwise analyzing the physical\nconstruction of any such items.\nC. Recipient may only disclose the Confidential Information to Recipient’s Representatives having a bona fide need to know the\nConfidential Information in the course of performing their duties in connection with the Services or Products. Recipient will\nsegregate or otherwise maintain Confidential Information so as to prevent any commingling of the same with the confidential\nproprietary materials of others. In the event of any unauthorized disclosure of Confidential Information, Recipient shall notify\nDiscloser immediately. Recipient shall be fully responsible for and accountable to Discloser for any damages Discloser or any\naffiliate of Discloser suffers arising out of or related to any disclosure or use of Confidential Information in breach of this\nAgreement by Recipient or any Recipient Representative and shall, at Recipient’s sole cost and expense, take all reasonably\nnecessary measures (including, but not limited to, court proceedings) to restrain such persons or entities from unauthorized\ndisclosure or use of Confidential Information.\n11\nD. If either Party determines that it shall not proceed with the Services pursuant to this Agreement, such Party will promptly notify the\nother Party of such determination. Recipient further agrees that upon a determination by either Party not to proceed with the\nServices, upon termination of this Agreement pursuant to Section 20 of this Agreement or upon written request of Discloser,\nRecipient will promptly (a) return all Confidential Information and all records, notes, and other written, printed, computer\ngenerated or other materials in its possession pertaining to the Confidential Information and not retain copies, extracts or other\nreproductions of such materials; (b) destroy all documents, memoranda, notes and other writings (whether in electronic or hard\ncopy form) prepared by Recipient or any Recipient Representative based upon or incorporating any Confidential Information\nreceived from Discloser or any Discloser Representative, including all documents containing any abstracts or excerpts of any\nConfidential Information; and (c) certify in writing to Discloser that Recipient has complied with its obligations hereunder. The\nreturn or destruction of materials does not relieve Recipient from complying with the other terms and conditions of this Agreement.\nE. Notwithstanding any other provision of this Agreement, the Parties agree that:\ni. All rights to Confidential Information disclosed pursuant to this Agreement are reserved to and retained by Discloser, and\nDiscloser shall be and remain free to disclose or provide the Confidential Information to whomever in any manner\nDiscloser chooses;\nii. Except as expressly provide in Section 15 below, nothing in this Agreement will diminish or restrict in any way the rights\nthat each Party has to develop its products, services and business or otherwise make available its products and services to\nany customer or third party in the ordinary course of its business;\niii. No license or conveyance of any rights or ownership is granted or implied by this Agreement or the disclosure of any\nConfidential Information hereunder, and Discloser expressly reserves any and all rights that it may have in and to the\nConfidential Information;\niv. No license is hereby granted, directly or indirectly, under any know-how, including any patent, invention, discovery, idea,\ncopyright or other intellectual or industrial property right now or in the future held, made, obtained or licensable by\nDiscloser; and\nv. The timing of access and the nature and extent of the Confidential Information to be made available to Recipient will be at\nthe discretion of Discloser.\n12\nF. In the event Recipient or any Recipient Representative is served with an administrative or court subpoena or order requiring any\nConfidential Information to be disclosed, Recipient shall immediately thereafter notify Discloser orally and in writing of the fact of\nsuch service, the information requested and the time to respond thereto, and in all events, shall use its best efforts to provide\nDiscloser with such notice sufficiently in advance of the deadline to respond to allow Discloser sufficient time to challenge such\nsubpoena or order if Discloser elects to do so. Recipient shall cooperate fully with Discloser, at Discloser’s expense, in challenging\nany subpoena or order requiring the disclosure of Confidential Information. Should Discloser decide not to challenge any such\nsubpoena or order, then Recipient or the Recipient Representative, as applicable, may disclose such information as, in the\nreasonable judgment of Recipient’s counsel, is required to be disclosed under such subpoena or order. Discloser shall advise\nRecipient within five (5) business days of receipt of notice thereof whether Discloser intends to challenge the subpoena or order.\nG. Recipient hereby acknowledges and agrees that neither Discloser nor any Discloser Representative makes any representations or\nwarranties whatsoever, express or implied, as to the accuracy, completeness or correctness of any Confidential Information supplied\nhereunder, nor shall any such representations or warranties be implied. Neither Discloser nor Discloser’s officers, directors or\nshareholders nor any of the Discloser Representatives shall have any liability whatsoever to Recipient or any Recipient\nRepresentative arising out of or resulting from the use of or reliance on any Confidential Information. Discloser retains the right to\ndetermine, in its sole discretion, what information, properties and personnel it wishes to make available to Recipient hereunder.\n15. The Parties acknowledge that in order to facilitate the Services, it may be necessary for Representative to introduce the Customers to the\nCompany for direct discussions regarding the sales of products. The Company hereby expressly agrees not to, directly or indirectly\nthrough one or more of the Company’s affiliates or intermediaries, take any action for sole purpose of depriving the Representative of\nany commission that would otherwise be payable with respect to such sales.\n16. Nothing in this Agreement shall be construed as constituting any offer by, or as creating any obligation on the part of, either Party to\nenter into any transaction with the other or with any other person or entity.\n17. The Parties agree that, because an award of money damages may be inadequate for any breach of Section 11 of this Agreement, and any\nsuch breach may cause the non-breaching Party irreparable harm, in the event of a breach or threatened breach of the terms of this\nAgreement by a Party, the non-breaching Party shall be entitled, without requirement of posting a bond or other security, to an\ninjunction or decree of specific performance prohibiting any such breach or disclosure or misuse of any Confidential Information. In\naddition to injunctive relief, the non-breaching Party shall have all other rights and remedies afforded it by law.\n13\n18. This Agreement shall be construed, governed by, enforced and interpreted, and the relationship between the Parties determined in\naccordance with, the laws of the State of Texas without giving effect to any choice or conflict of laws rules, provisions or principles\n(whether of the State of Texas or any other jurisdiction) the application of which would result in the application of the laws of any\njurisdiction other than the State of Texas.\n19. The Parties will attempt in good faith to resolve any dispute arising out of or relating to this Agreement or the construction\ninterpretation, performance, breach, termination, enforceability or validity hereof (each a “Dispute”) through discussions between their\nrespective representatives. Any Dispute that cannot be resolved through discussions between the Parties’ respective representatives\narising out of or relating to this Agreement, including the annexes and schedules hereto, will be fully and finally settled by arbitration in\naccordance with the provisions set forth in Section 13 of the Representative’s Employment Agreement with the Company, dated as of\nOctober 19, 2012. Notwithstanding this provision, nothing contained herein shall in any way be deemed to prohibit the Company or the\nRepresentative from seeking temporary equitable relief from a court of competent jurisdiction in the event of a breach or threatened\nbreach by the other party of this Agreement.\n20. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be (i) sent by an overnight\ncourier service that provides proof of receipt, (ii) mailed by registered or certified mail (postage prepaid, return receipt requested) or (iii)\ntelecopied to the Parties at the following addresses (or at such other address for a Party as shall be specified by like notice):\nIf to Company:\nIntegrated Drilling Equipment Holdings Corp.\n25311 I-45 North, Building 6\nSpring, Texas, USA 77380\nAttn: N. Michael Dion\nTel: 281-465-9393\nE-mail: mdion@ide-rig.com\nIf to Representative:\nOffshore and Marine Holdings LLC\nStephen D. Cope\n7303 Augusta Drive\nSpring, TX 77389\nTel: (713) 253-0130\nIf this Agreement provides for a designated period after a notice within which to perform an act, such period shall commence on the\ndate of receipt or refusal of the notice. If this Agreement requires the exercise of a right by notice on or before a certain date or within a\ndesignated period, such right shall be deemed exercised on the date of delivery to the courier service, tele-copying or mailing of the\nnotice pursuant to which such right is exercised.\n14\n21. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior\nrepresentations, agreements and understandings, whether oral or written, between the Parties with respect to the subject matter hereof.\nNo representations or warranties have been made relating to the subject matter hereof other than those expressly set forth in this\nAgreement. This Agreement may not be amended, modified or supplemented except by means of a written instrument designated as\nsuch and executed by an authorized officer of each of the Parties.\n22. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable by a court, tribunal or other forum of competent\njurisdiction for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement\n(including, without limitation, each portion of any subdivision of this Agreement containing any such provision held to be invalid,\nillegal or unenforceable) shall not in any way be affected or impaired thereby; (b) such provision will be deemed reformed to the extent\nnecessary to conform to applicable Law and to give maximum effect to the intent of the Parties, or, if that is not possible, such provision\nshall be deemed severed from this Agreement; and (c) to the fullest extent possible, the provisions of this Agreement (including, without\nlimitation, each portion of any subdivision of this Agreement containing any such provision held to be invalid, illegal or unenforceable,\nthat is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held\ninvalid, illegal or unenforceable.\n23. Either Party hereto may terminate this Agreement by thirty (30) days written notice to the other Party at its address specified herein, but\nno such termination shall affect obligations already in effect.\n24. This Agreement is personal to each of the Parties and may not be assigned or otherwise transferred, in whole or in part, by either Party\nwithout the prior written consent of the other Party.\n25. No failure or delay by a Party in exercising its rights, powers or privileges under this Agreement shall constitute a waiver thereof, nor\nshall any single or partial exercise of such rights, powers or privileges preclude any further exercise thereof. No waiver of any provision\nshall be binding upon a Party unless it is in writing and signed by an authorized officer of such Party.\n15\n26. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original copy of this Agreement, but\nall of which, when taken together, shall be deemed to constitute one and the same agreement. The Parties may sign and deliver this\nAgreement by facsimile transmission or by electronic mail in “portable document format.” Each Party agrees that the delivery of this\nAgreement by facsimile or by electronic mail in “portable document format” shall have the same force and effect as delivery of original\nsignatures, and that each Party may use such facsimile or electronic mail signatures as evidence of the execution and delivery of this\nAgreement by all Parties to the same extent that an original signature could be used.\n[SIGNATURES ON FOLLOWING PAGE]\n16\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.\nIntegrated Drilling Equipment Holdings Corp.\nBy (Print Name): N. Michael Dion\nSignature: /s/ Michael Dion\nTitle: CFO\nDate: April 7, 2014\nOffshore and Marine Holdings LLC\nBy (Print Name): Steve Cope\nSignature: /s/ Steve Cope\nTitle: President/CEO\nDate: April 7, 2014\nSignature Page to Sales Representation, Non-Circumvention and Non-Disclosure Agreement\nAPPENDIX A\nREPRESENTATION AREA.\nThe Representation Area is the United States of America and Mexico. Additional areas and projects may be determined on a case by case basis in\nthe Company’s discretion.\nAPPENDIX B\nSPECIFIC PROJECT AND COMMISSION BASIS\n(Specific Projects, details and commission basis are to be determined on a case by case basis. The initial commission to be included will\nbe 1% of the net selling price of any order or project)\nAPPENDIX C\nRESTRICTED CUSTOMERS.\n·\nLas Isla*\n·\nBig Dog Drilling*\n·\nIHSA\n·\nSavannah Drilling\n·\nLewis\n·\nSidewinder\n·\nSavanna\n·\nNoram\n·\nEurasia Drilling\n·\nIHSA\n·\nTacker\n·\nPEMSA*\n·\nGPA\n·\nLatina*\n·\nGSM*\n·\nGoimar*\n·\nCentral*\n·\nEnsign\n·\nFelderhoff\n·\nArcher*\n·\nLukoil\n·\nSevmash\n·\nGazprom\n·\nRosneft\n·\nSidewinder\n·\nEnsign\n·\nRUS Industrial\n·\nCRC Evans\n·\nBaker Hughes\n·\nOklahoma Rig Co.\n·\nShale Pumps\n·\nServas Energy\n·\nAztec Drilling\n·\nIndependence Drilling\n·\nSidewinder\n·\nPatterson UTI\n·\nNabors\n·\nEnsign\n·\nScana\n·\nEnergy Water Solutions\n·\nNDIL\n*Projects undertaken by entities identified with an asterisk shall not be subject to the restrictions placed on Restricted Customers for any such\nprojects or PEMEX licitations that are received, initiated or quoted after the date of the Company’s March 24, 2014 pipeline report. For the\navoidance of doubt, any projects that have not been quoted prior to the March 24, 2014 pipeline report and are received, initiated or quoted after\nthe March 24, 2014 pipeline report shall not be subject to the restrictions placed on Restricted Customers in Section 4(f) of this Agreement.\nSCHEDULE 1\nANNUAL CERTIFICATION OF COMPLIANCE\nFOR INTERNATIONAL\nCONSULTANTS, AGENTS AND REPRESENTATIVES\nI [•] a duly authorized representative of [•] (the “Representative”) do hereby certify for and on behalf of such company, that neither I, nor to\nmy knowledge any other person, including but not limited to every officer, director, stockholder, employee, representative and agent of\nRepresentative or its affiliates has made any offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift,\npromise to give, or authorization of the giving of anything of value to any Public Official (defined below) to obtain, retain, or direct business\nor to secure any improper advantage for myself, the Representative, Representative’s affiliates, or any affiliate in violation of any Anti-\nCorruption Laws (defined below).\n"Public Official" means any officer or employee of a government (or any department, agency, or instrumentality thereof, including, but not\nlimited to, national oil companies), a political party, or a public international organization (such as the World Bank), or any person acting in\nan official capacity for or on behalf of any such government, department, agency, or instrumentality, or for or on behalf of any public\ninternational organization, or any political party or official thereof or candidate for political office. “Anti-Corruption Laws” means the\nUnited States Foreign Corrupt Practices Act (“FCPA”) and the anti-corruption and bribery laws of the representation Area, the jurisdiction(s)\nwhere Representative and its applicable affiliates are organized, and the country (ies) where the representation Services will be performed.\nI hereby confirm and agree that should I learn of any of the prohibited activities described above, or if there are any changes in the\nownership or control of the Representative or its affiliates, I will immediately advise:\nIntegrated Drilling Equipment Holdings Corp.\n25311 I-45 North\nBuilding 6\nSpring, Texas 77380\nAttn: N. Michael Dion\nTel: 281-465-9393\nE-mail: mdion@ide-rig.com\n(Signatures on Next Page)\nI hereby confirm that neither I nor anyone else at [•] or any affiliate that is providing Services is a Public Official.\nI certify under penalty of perjury that the foregoing is true and correct.\nDate:\nBy:\nName:\nTitle:	EX-10.5 8 v374814_ex10-5.htm EXHIBIT 10.5\nCONFIDENTIAL SALES REPRESENTATION AND\nNON-CIRCUMVENTION/NON-DISCLOSURE AGREEMENT\nThis Agreement (“Agreement”), dated April 7, 2014, will constitute a Sales Representation, Non-Circumvention and Non-Disclosure Agreement\nby and between Integrated Drilling Equipment Holdings Corp. (“IDE”) (hereinafter referred to as “Company”) and Offshore and Marine\nHoldings LL.C (the “Representative™).\nRECITALS:\nWHEREAS, Company designs, manufactures, sells and/or leases oil and gas drilling rigs and related equipment; and\nWHEREAS, the Representative is the former Chief Executive Officer of Company, a member of the board of directors of the Company and\ncurrently assists in the marketing and sale of drilling equipment; and\nWHEREAS, the Company wishes to appoint and the Representative agrees to accept appointment as an independent sales and marketing\nconsultant for all products and services manufactured or otherwise provided by the Company; and\nWHEREAS, each Party is willing to furnish Confidential Information (as defined below) to the other Party in connection with and subject to the\nterms and conditions of this Agreement; and\nWHEREAS, in order to facilitate the Company’s business in the Areas covered by this Agreement, Representative is willing to introduce\nCompany to the customers;\nNOW, THEREFORE, for and in consideration of the foregoing and the covenants and agreements set forth in this Agreement, the Parties,\nintending to be legally bound, do hereby agree as follows:.\n1. Products covered by the Agreement (“Products”).\nA. Complete drilling rig packages and systems.\nB. Drilling rig component products manufactured by the Company including, but not limited to, Mast, Drawworks, Substructures,\nMud Pumps, Rotary Tables, SCR Drive Systems, AC VFD Systems, Equipment Installations, Fabrication, and other products and\nservices provided and manufactured by the Company.\nra\nA. Representative will have non-exclusive rights for the Area defined in Appendix A of this Agreement, except for specific accounts\nor areas specifically excluded by the Company which may be added or subtracted from Appendix A from time to time by the\nCompany in its sole discretion. Any exceptions or exclusions will be identified by the Company and notified to the Representative\nin writing. However, any specific projects or sales opportunities introduced by the Representative to the Company will become the\nexclusive property of the Representative until cancelled by mutual agreement of Representative and Company.\nB. Conflicts. In areas that may be assigned to and covered by a different representative, the Company will attempt to advise the\nRepresentative of any potential conflict and reduce potential conflicts.\n3. Services.\nThe Representative and Company agree that the Services are to be performed by the Representative acting solely as an independent\ncontractor on behalf of the Company. The parties agree that the Representative will provide the following minimum Services for the\nCompany, all at the direction and request of the Company:\nObtain information relating to the requirements of customers for the Company’s Products.\nAdvise, assist and consult with the Company in the proper preparation and submittal of Company’s response to any tenders or other requests\nfor the sale or lease of Products.\nAdvise, assist and consult with the Company with respect to negotiations relating to the award of a contract for the purchase or lease of\nProducts.\nProvide general advice and counsel as well as specific assistance pertaining to local matters which would affect the execution of the contract,\naward and performance of the work relating to the contract.\nAssist the Company, to the extent possible, with help in order to Secure necessary permits, bonds and guarantees including, but not limited\nto, customs, importation and exportation permits for the Products and related equipment required by the contract as well as any other local\ngovernmental permits necessary or desirable in connection with importation, operation and exportation of the Products in or from the area\ndefined in Appendix A ( cost of the permit, bond or guarantee fees actually incurred is for the account of Company).\nAssist in obtaining any work permits required for local or foreign personnel to work in the Territory to perform any contract. Any associated\ncost will be reimbursed to the Representative by the Company.\nra\nProvide assistance and services in dealing with representatives of the customers and their affiliates. Provide such assistance and advice as may be reasonably requested by Company relating to facilitating communications between the Company and the customers throughout the term of any contracts. Notify the Company of any additional potential projects or sales or leases of Products for the customers. Provide such other services as Company may reasonably determine from time to time may be necessary or helpful in connection with its operations relating to the contracts. Assist the Company and the Customer to establish payment terms for any Products that are agreeable to the Company and the customer. Assist in collection of payments and amounts due from customer and assist in resolving any disputes relating thereto. 4. Commission payment and terms.\nA. The Company agrees to pay the Representative a commission of 1%, based upon the final net selling price of any products and\nservices by the Company to a Customer, denominated and payable in U.S. Dollars, as set forth in Appendix B of this Agreement for\nspecific projects. Typically, the commission will be set by Company for each project and will be based upon the net sales price of\nany Products sold, by the Company to a customer. For the avoidance of doubt, the net selling price will be exclusive of any\nshipping/freight charges, insurance, interest, travel and living expenses, taxes or other similar costs reimbursed to the Company.\nCompany reserves the right to set a specific commission basis for each project.\nB. Reduction of commissions. In certain cases, it may be necessary for the Company to reduce the selling price in order to obtain an\norder. In this event, the Company and the Representative both agree to a proportional reduction of the commission proportional to\nthe reduction in selling price.\nC. Excess commissions. In some cases, the Representative may have an opportunity to earn more than the basic commission as\ndefined in Appendix B. In these cases, the Representative and the Company will agree upon any excess compensation in advance of\nthe sale or lease. The Company reserves the right to set any (or no) specific excess commission.\nwd\nD. Payment of commissions. Payment of commissions will be paid on a pro-rata basis to the Representative based on the payment\nterms accepted by the Company from the end user/customer. All commissions will be paid to the Representative within ten (10)\ndays after receipt of the Customer’s payment by the Company.\nE. Cancellations. In cases of cancellations, the Company will be under no obligation to pay unearned commissions to the\nRepresentative except for payments received by the Company that are not refunded to the end user/customer. In cases where\ncancellations require a refund of payments made to the Company, the Representative agrees to refund any commissions received\nfrom the Company that have been paid by the Company to the Representative associated with such refund of payments.\nF. Restricted Customers. The Representative shall not be entitled to commissions for any sales by the Company to (i) any customers to\nwhich the Company has made sales of any kind during the two-year period ending on the date hereof or (ii) the customers set forth\non Appendix C (the “Restricted Customers”) even in the event that the Representative, directly or indirectly, facilitates or assists in\nsuch sales. Prior to contacting any customer, the Representative shall notify the Company that he intends to contact such customer\nand shall only contact such customer with the prior written consent of the Company.\nAcceptance of sales/contracts.\nThe Company is the sole authority for accepting or rejecting any prospective sales brought in by the Representative. The Representative\nhas no authority to contractually or otherwise bind the Company in any manner. The Representative shall not be permitted to quote\nprices that deviate from the Company’s current price list without the prior written approval of the Chief Executive Officer and the Chief\nFinancial Officer of the Company.\nExpenses.\nThe Representative and the Company each agree to pay its own expenses incurred in the normal course of business and in execution of\nthis contract, unless agreed otherwise in writing or in this Agreement.\nProduct Representation.\nThe Representative hereby agrees to represent the Company and the Products and Services provided by the Company and not to\nrepresent products or enter into a representation relationship which would compete with the Products and Services that are the subject of\nthis Agreement, provided that the Representative shall be free to sell used drilling equipment and other used products, provided further\nthat the Company shall have a right of first refusal to engage in any refurbishment-related work on used equipment or products sold by\nthe Representative.\nra\n8. Taxes. Each party shall pay their own sales, use, franchise, income or other taxes. Documentation, sales and marketing and other assistance. The Company will provide the Representative with all marketing data necessary including drawings, literature, contract preparation, quality assurance/quality control manuals and other sales, marketing and engineering as necessary and reasonably required by the Representative in the normal course of business of representing the Company. The Company will assist the Representative with all reasonable requests for assistance from the sales, engineering, production or other departments of the Company, on the same basis as the Company provides such support for all of its sales representatives. 10. General Business Ethics. A. The Representative represents and warrants that it is familiar with relevant laws in the assigned Area, and that neither the receipt of fees under this Agreement nor the performance by the Company or the Representative of obligations and Services under this\nAgreement is in any respect a violation of applicable laws, rules, orders, prohibitions, or regulations in the assigned Area. The\nRepresentative shall comply in all respects with all applicable laws in the assigned Area dealing with bribery and corruption, as\nmay be amended from time to time.\nThe Representative has not and will not offer, promise or provide any thing of value, directly or indirectly, to any Government\nOfficial, or any other person or entity, for the purpose of influencing any decision, action or inaction in order to secure or maintain\nan improper advantage in connection with or relating to the subject matter of this Agreement or any supplement or amendment\nhereto, or in order to direct an improper advantage to any other person or entity or otherwise act in violation of the Foreign Corrupt\nPractices Act (the “FCPA”) of the United States of America. The offer, promise or provision of any thing of value proscribed by\nthis paragraph is a “Prohibited Payment.”\n“Government Official,” as that term is used throughout this Article 10, includes any official, employee or representative of any\ngovernment (or agency, instrumentality, or company owned or controlled by any government), any political party or employee\nthereof, or any candidate for political office.\nra\nIf the Representative receives a request for a Prohibited Payment in connection with or relating to the subject matter of this\nAgreement or any supplement or amendment hereto, then the Company must be notified immediately.\nThe Representative agrees and certifies that it is familiar with, is in compliance with, and will continue to comply strictly with all\napplicable anti-corruption laws and regulations and will not engage in or support any occurrence of bribery or other corrupt\npractices.\nThe Representative shall not do business with any person or third-party entity where it knows or suspects the existence of any\nillegal, unethical or questionable practices by such person or third-party entity, its officers, employees or agents.\nAll financial transactions by Representative hereunder shall be recorded in a timely, complete and accurate manner in accordance\nwith generally accepted accounting principles consistently applied. Representative invoices and supporting documentation, as well\nas all other documents and accounting entries, shall not be false, fictitious or intentionally misleading in any way. The\nRepresentative shall sufficiently document all payments and keep appropriate receipts. The Representative shall make available to\nthe Company any invoices or records corresponding to such payments at the Company’s request upon reasonable notice.\nThe Company shall have reasonable access to the Representative’s books and records pertaining to activities for or on behalf of the\nCompany, and the right to audit these records on demand. The Company may elect to designate a third party to conduct such an\naudit. The Company may, inspect the Representative’s premises. The Representative shall fully cooperate in any due diligence or\naudit conducted by or on behalf of the Company. Any associated cost will be for the account of The Company.\nUpon its discovery of a breach of any of the representations and warranties, or any other provision of this Agreement, the\nRepresentative shall immediately report such breach to the Company.\nThe Representative shall notify the Company if, at any time during the course of this Agreement, the Representative becomes\naware of any change of circumstances that could materially impact the Representative’s performance under this Agreement.\nra\n11. Compliance with FCPA\nA. The Representative represents and warrants that, in connection with the business to be conducted under this Agreement, no\npayment has been made, and no payment will be made, by Representative or by any of its officers, employees, agents or subsidiary\nor affiliated companies to any officer, official or employee (or to any agent or other person acting on behalf of such a person) of any\nnation, national company or political Party in violation of the Foreign Corrupt Practices Act (the "FCPA") of the United States of\nAmerica that prohibits payment or giving of anything of value, either directly or indirectly, by an American company to an official\nof a foreign government for the purpose of influencing an act or decision in his or her official capacity, or inducing that official to\nuse his or her influence with the foreign government, to assist a company in obtaining or retaining business for, or with, or directing\nbusiness to, any person. The Representative further represents and warrants that it shall not undertake any action which is in\nviolation of the anti-bribery provision of the OECD. This Agreement shall automatically terminate without notice upon Company\nlearning of any violation of this clause, and the Company shall have no further obligations to amounts owing, or otherwise, under\nthis Agreement from and after the date of said violation. Furthermore, the Representative agrees to defend, indemnity and hold the\nCompany harmless from and against any claims, actions or causes of action for damages, fines, penalties, (including interest\nthereon and attorney fees) arising out of any violation of this clause. At the request of Company or at least annually, the\nRepresentative shall provide a certification in a form substantially similar to Schedule 1, attached to and incorporated herein by\nreference.\nB. Company warrants that it will not knowingly request any service from Representative, which might constitute a violation of the\napplicable laws of The United States of America or any national or local government having jurisdiction over the Parties, and no\nofficer or employee of Company has authority to give directions to Representative, which is contrary to the laws of The United\nStates of America or any national or local government having jurisdiction over the Parties.\n12. Conformity with Local Laws\nEach Party agrees to comply with all applicable laws, orders, regulations, directions, restrictions and limitations of the governments\n(“Laws”) having jurisdiction of the Parties hereto and over the Services. Each Party agrees to defend, indemnify and hold the other\nParty harmless from and against any claims, actions or causes of actions for damages, penalties, fines or otherwise (including interest\nthereon and attorney fees) for their respective violation of the Laws.\nra\n13. Representations of Representative 14. The Representative represents and warrants to the Company that: (a)\n(b)\n(©\nThe Representative (i) is a corporation or limited liability company duly organized, validly existing and in good standing under\nthe laws of the jurisdiction of its incorporation; (ii) has its principal place of business located at its address set forth on the\nsignature page hereof; (iii) has all requisite corporate or other power, and has all material governmental licenses,\nauthorizations, consents and approvals necessary to own its assets and carry on its business as now being or as proposed to be\nconducted; and (iv) is qualified to do business and is in good standing in all jurisdictions in which the services required to be\nperformed by it under this Agreement make such qualifications necessary.\nThere are no legal or arbitral proceedings or any proceedings by or before any governmental or regulatory authority or agency,\nnow pending or (to the knowledge of the Representative) threatened against the Representative which, if adversely determined,\ncould (either individually or in the aggregate) have a Material Adverse Effect (as hereafter defined). For purposes hereof, the\nterm “Material Adverse Effect” means a material adverse effect on (i) the ability of the Representative to perform its services\nhereunder, (ii) the validity or enforceability of this Agreement, or (iii) the rights and remedies of the Company hereunder.\nThe Parties have all necessary corporate and other power, authority and legal right to execute, deliver and perform their\nrespective obligations hereunder; the execution, delivery and performance by the Parties of this Agreement have been duly\nauthorized by all necessary corporate and other action on their part; and this Agreement has been duly and validly executed by\nthe Representative and Company and constitutes its legal, valid and binding obligation, enforceable against the Parties in\naccordance with its terms.\nNon-disclosure agreement. A Party receiving Confidential Information may also be referred to herein as a “Recipient,” and a Party disclosing Confidential Information may also be referred to herein as a “Discloser.”\fra\nAs used in this Agreement, “Confidential Information” shall mean information, technical data or know-how disclosed by Discloser or\nany of Discloser’s employees, agents, affiliates, contractors or representatives (each a “Discloser Representative” and collectively, the\n“Discloser Representatives”) to Recipient or any of Recipient’s employees, agents, affiliates, contractors or representatives (each a\n“Recipient Representative” and collectively, the “Recipient Representatives”), including, but not limited to: customer/supplier lists and\nidentities, agreements, characteristics, formulations, specifications, sales and marketing information, sales, figures, pricing and cost\ninformation, marketing plans and business plans, forecasts, financial information, budgets, databases, computer programs, software\n(whether in object or source code), research papers, projections, practices, procedures, processes, routines, formulae, trade secrets,\nideas, innovations, inventions, technology, manufacturing know-how, machinery, drawings, photographs, equipment, devices, tools,\ndiscoveries, improvements, research or development and test results, data, formats, plans, sketches, models, any intellectual property,\npatents, trademarks, and copyrights and applications therefore, all rights and information necessary to produce and market Discloser’s\nproducts or to conduct the business of Discloser as currently conducted, or which pertains in any manner to subjects or knowledge of\nDiscloser’s business or operation, or the information, tangible or intangible, owned, developed or possessed by Discloser, whether or not\nmarked as “confidential,” and any other information or procedures that are treated as confidential by Discloser or its affiliates, suppliers\nor customers. Confidential Information shall include all such information that has been or may hereafter be provided, shown to, or\nreviewed by Recipient or any Recipient Representative, irrespective of the manner in which such information is communicated, and also\nincludes all notes, analyses, compilations, studies, summaries and other material prepared by Recipient or any Recipient Representative\ncontaining or based, in whole or in part, on any information included in any of the foregoing. Confidential Information also includes\ninformation of third parties in possession of Discloser that Discloser is obligated to maintain in confidence. Confidential Information\nsubject to this Agreement may be in intangible form, such as unrecorded knowledge, ideas or conceptions or information communicated\norally or by visual observation, or may be embodied in tangible form, such as a document. For purposes of this Agreement, the term\n“document” includes written memoranda, drawings, training materials, specifications, notebook entries, photographs, graphic\nrepresentations, firmware, computer information or software, information communicated by other electronic or magnetic media, or\nmodels.\nA. Notwithstanding the provisions of this Section 11 of the Agreement or any other provision of this Agreement, Confidential\nInformation” shall not include any of the following, even if marked or designated “Confidential”:\ni. Information that Recipient can substantiate was known by Recipient prior to disclosure by Discloser or any Discloser\nRepresentative to Recipient or any Recipient Representative under this Agreement;\nii. Information that was disclosed to Recipient or any Recipient Representative by a third party not known by Recipient to be\nunder an obligation of confidentiality with respect to such information;\niii. Information that is or becomes generally available to the public through no fault of Recipient or any Recipient\nRepresentative in breach of this Agreement;\nra\niv. Information required to be disclosed by judicial mandate or other requirement of applicable law, provided that Recipient\ncomplies with the provisions of Section 11.F. of this Agreement; or\nInformation that is independently developed by Recipient or any Recipient Representative without use of or reference to\nany of Discloser’s Confidential Information and without breach by Recipient or any Recipient Representative of any\nconfidentiality agreement or obligation to Discloser, as evidenced by Recipient’s written records.\nB. With respect to Confidential Information disclosed by Discloser or any Discloser Representative to Recipient or any Recipient Representative, Recipient shall, and shall cause each Recipient Representative to: ii.\niil. iv. receive, review, regard, preserve, hold and treat all Confidential Information as secret and confidential and to use its best\nefforts to prevent disclosure by any Recipient Representative, directly or indirectly, to any person or entity that does not\nreasonably need to know the Confidential Information for the specific purpose relating to the Services provided to the\nCompany or the Products;\nrefrain from using any Confidential Information except for the limited purpose of furthering the Services to be provided\nrelated to the transactions for the Products;\ntake all necessary and appropriate steps to maintain the confidentiality of any Confidential Information disclosed to\nRecipient or any Recipient Representative, including ensuring the confidentiality of any Confidential Information provided\nto the Recipient Representatives and any successors or assigns of any of them, including without limitation, entering into\nconfidentiality agreements with such persons or entities in a form substantially similar to this Agreement or other\nagreements pursuant to which such persons or entities agree to be bound by the terms and conditions of this Agreement as\nif such persons or entities were Recipient;\nTake all necessary and appropriate steps to prevent use of the Confidential Information in any way that would violate\nfederal or state securities or other applicable laws;\nRefrain from copying or duplicating, in any manner whatsoever except to the extent reasonably necessary for the\nfurtherance of the transactions involving the Products or as otherwise permitted herein, Confidential Information without\nthe express written permission of Discloser;\n10\nvi. Refrain from referring, orally or in writing, to Discloser or the Transactions in any press releases, promotional material,\npresentations to third parties (other than Discloser), in business resumes, or in any other information provided to third\nparties, without the prior written consent of Discloser;\nvii. Refrain from discussing or referring to any findings, conclusions, recommendations or the underlying data thereof with\nany third party (other than Discloser) arising out of any Confidential Information or the transactions involving the Products\nor the Services provided to the Company, without the prior written consent of Discloser;\nviii. Use the Confidential Information solely for the purpose of furthering the Transactions and not to use any of the\nConfidential Information for the benefit of any person or entity other than Discloser without the prior written consent of\nDiscloser; and\nix. With respect to any equipment, component, software or other items sold, leased, loaned or otherwise delivered by\nDiscloser or any Discloser Representative to Recipient or any Recipient Representative in connection with the Services or\nthe Products, refrain from reverse engineering, disassembling, decompiling or otherwise analyzing the physical\nconstruction of any such items.\nC. Recipient may only disclose the Confidential Information to Recipient’s Representatives having a bona fide need to know the\nConfidential Information in the course of performing their duties in connection with the Services or Products. Recipient will\nsegregate or otherwise maintain Confidential Information so as to prevent any commingling of the same with the confidential\nproprietary materials of others. In the event of any unauthorized disclosure of Confidential Information, Recipient shall notify\nDiscloser immediately. Recipient shall be fully responsible for and accountable to Discloser for any damages Discloser or any\naffiliate of Discloser suffers arising out of or related to any disclosure or use of Confidential Information in breach of this\nAgreement by Recipient or any Recipient Representative and shall, at Recipient’s sole cost and expense, take all reasonably\nnecessary measures (including, but not limited to, court proceedings) to restrain such persons or entities from unauthorized\ndisclosure or use of Confidential Information.\n11\fra\nIf either Party determines that it shall not proceed with the Services pursuant to this Agreement, such Party will promptly notify the\nother Party of such determination. Recipient further agrees that upon a determination by either Party not to proceed with the\nServices, upon termination of this Agreement pursuant to Section 20 of this Agreement or upon written request of Discloser,\nRecipient will promptly (a) return all Confidential Information and all records, notes, and other written, printed, computer\ngenerated or other materials in its possession pertaining to the Confidential Information and not retain copies, extracts or other\nreproductions of such materials; (b) destroy all documents, memoranda, notes and other writings (whether in electronic or hard\ncopy form) prepared by Recipient or any Recipient Representative based upon or incorporating any Confidential Information\nreceived from Discloser or any Discloser Representative, including all documents containing any abstracts or excerpts of any\nConfidential Information; and (c) certify in writing to Discloser that Recipient has complied with its obligations hereunder. The\nreturn or destruction of materials does not relieve Recipient from complying with the other terms and conditions of this Agreement.\nNotwithstanding any other provision of this Agreement, the Parties agree that:\ni.  All rights to Confidential Information disclosed pursuant to this Agreement are reserved to and retained by Discloser, and\nDiscloser shall be and remain free to disclose or provide the Confidential Information to whomever in any manner\nDiscloser chooses;\nii. Except as expressly provide in Section 15 below, nothing in this Agreement will diminish or restrict in any way the rights\nthat each Party has to develop its products, services and business or otherwise make available its products and services to\nany customer or third party in the ordinary course of its business;\niii. No license or conveyance of any rights or ownership is granted or implied by this Agreement or the disclosure of any\nConfidential Information hereunder, and Discloser expressly reserves any and all rights that it may have in and to the\nConfidential Information;\niv. No license is hereby granted, directly or indirectly, under any know-how, including any patent, invention, discovery, idea,\ncopyright or other intellectual or industrial property right now or in the future held, made, obtained or licensable by\nDiscloser; and\nv. The timing of access and the nature and extent of the Confidential Information to be made available to Recipient will be at\nthe discretion of Discloser.\n12\fra\nIn the event Recipient or any Recipient Representative is served with an administrative or court subpoena or order requiring any\nConfidential Information to be disclosed, Recipient shall immediately thereafter notify Discloser orally and in writing of the fact of\nsuch service, the information requested and the time to respond thereto, and in all events, shall use its best efforts to provide\nDiscloser with such notice sufficiently in advance of the deadline to respond to allow Discloser sufficient time to challenge such\nsubpoena or order if Discloser elects to do so. Recipient shall cooperate fully with Discloser, at Discloser’s expense, in challenging\nany subpoena or order requiring the disclosure of Confidential Information. Should Discloser decide not to challenge any such\nsubpoena or order, then Recipient or the Recipient Representative, as applicable, may disclose such information as, in the\nreasonable judgment of Recipient’s counsel, is required to be disclosed under such subpoena or order. Discloser shall advise\nRecipient within five (5) business days of receipt of notice thereof whether Discloser intends to challenge the subpoena or order.\nRecipient hereby acknowledges and agrees that neither Discloser nor any Discloser Representative makes any representations or\nwarranties whatsoever, express or implied, as to the accuracy, completeness or correctness of any Confidential Information supplied\nhereunder, nor shall any such representations or warranties be implied. Neither Discloser nor Discloser’s officers, directors or\nshareholders nor any of the Discloser Representatives shall have any liability whatsoever to Recipient or any Recipient\nRepresentative arising out of or resulting from the use of or reliance on any Confidential Information. Discloser retains the right to\ndetermine, in its sole discretion, what information, properties and personnel it wishes to make available to Recipient hereunder.\n15. The Parties acknowledge that in order to facilitate the Services, it may be necessary for Representative to introduce the Customers to the 16. 17. Company for direct discussions regarding the sales of products. The Company hereby expressly agrees not to, directly or indirectly through one or more of the Company’s affiliates or intermediaries, take any action for sole purpose of depriving the Representative of any commission that would otherwise be payable with respect to such sales. Nothing in this Agreement shall be construed as constituting any offer by, or as creating any obligation on the part of, either Party to enter into any transaction with the other or with any other person or entity. The Parties agree that, because an award of money damages may be inadequate for any breach of Section 11 of this Agreement, and any such breach may cause the non-breaching Party irreparable harm, in the event of a breach or threatened breach of the terms of this Agreement by a Party, the non-breaching Party shall be entitled, without requirement of posting a bond or other security, to an injunction or decree of specific performance prohibiting any such breach or disclosure or misuse of any Confidential Information. In addition to injunctive relief, the non-breaching Party shall have all other rights and remedies afforded it by law. 13\nra\n18. 19. 20. This Agreement shall be construed, governed by, enforced and interpreted, and the relationship between the Parties determined in\naccordance with, the laws of the State of Texas without giving effect to any choice or conflict of laws rules, provisions or principles\n(whether of the State of Texas or any other jurisdiction) the application of which would result in the application of the laws of any\njurisdiction other than the State of Texas.\nThe Parties will attempt in good faith to resolve any dispute arising out of or relating to this Agreement or the construction\ninterpretation, performance, breach, termination, enforceability or validity hereof (each a “Dispute”) through discussions between their\nrespective representatives. Any Dispute that cannot be resolved through discussions between the Parties’ respective representatives\narising out of or relating to this Agreement, including the annexes and schedules hereto, will be fully and finally settled by arbitration in\naccordance with the provisions set forth in Section 13 of the Representative’s Employment Agreement with the Company, dated as of\nOctober 19, 2012. Notwithstanding this provision, nothing contained herein shall in any way be deemed to prohibit the Company or the\nRepresentative from seeking temporary equitable relief from a court of competent jurisdiction in the event of a breach or threatened\nbreach by the other party of this Agreement.\nAll notices and other communications given or made pursuant to this Agreement shall be in writing and shall be (i) sent by an overnight\ncourier service that provides proof of receipt, (ii) mailed by registered or certified mail (postage prepaid, return receipt requested) or (iii)\ntelecopied to the Parties at the following addresses (or at such other address for a Party as shall be specified by like notice):\nIf to Company: Integrated Drilling Equipment Holdings Corp. 25311 I-45 North, Building 6\nSpring, Texas, USA 77380\nAttn: N. Michael Dion\nTel: 281-465-9393\nE-mail: mdion@ide-rig.com\nIf to Representative: Offshore and Marine Holdings LL.C Stephen D. Cope\n7303 Augusta Drive\nSpring, TX 77389\nTel: (713) 253-0130\nIf this Agreement provides for a designated period after a notice within which to perform an act, such period shall commence on the\ndate of receipt or refusal of the notice. If this Agreement requires the exercise of a right by notice on or before a certain date or within a\ndesignated period, such right shall be deemed exercised on the date of delivery to the courier service, tele-copying or mailing of the\nnotice pursuant to which such right is exercised.\n14\nra\n21. 22. 23. 24. 25. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior\nrepresentations, agreements and understandings, whether oral or written, between the Parties with respect to the subject matter hereof.\nNo representations or warranties have been made relating to the subject matter hereof other than those expressly set forth in this\nAgreement. This Agreement may not be amended, modified or supplemented except by means of a written instrument designated as\nsuch and executed by an authorized officer of each of the Parties.\nIf any provision of this Agreement shall be held to be invalid, illegal or unenforceable by a court, tribunal or other forum of competent\njurisdiction for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement\n(including, without limitation, each portion of any subdivision of this Agreement containing any such provision held to be invalid,\nillegal or unenforceable) shall not in any way be affected or impaired thereby; (b) such provision will be deemed reformed to the extent\nnecessary to conform to applicable Law and to give maximum effect to the intent of the Parties, or, if that is not possible, such provision\nshall be deemed severed from this Agreement; and (c) to the fullest extent possible, the provisions of this Agreement (including, without\nlimitation, each portion of any subdivision of this Agreement containing any such provision held to be invalid, illegal or unenforceable,\nthat is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held\ninvalid, illegal or unenforceable.\nEither Party hereto may terminate this Agreement by thirty (30) days written notice to the other Party at its address specified herein, but\nno such termination shall affect obligations already in effect.\nThis Agreement is personal to each of the Parties and may not be assigned or otherwise transferred, in whole or in part, by either Party\nwithout the prior written consent of the other Party.\nNo failure or delay by a Party in exercising its rights, powers or privileges under this Agreement shall constitute a waiver thereof, nor\nshall any single or partial exercise of such rights, powers or privileges preclude any further exercise thereof. No waiver of any provision\nshall be binding upon a Party unless it is in writing and signed by an authorized officer of such Party.\n15\nwd\n26. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original copy of this Agreement, but\nall of which, when taken together, shall be deemed to constitute one and the same agreement. The Parties may sign and deliver this\nAgreement by facsimile transmission or by electronic mail in “portable document format.” Each Party agrees that the delivery of this\nAgreement by facsimile or by electronic mail in “portable document format” shall have the same force and effect as delivery of original\nsignatures, and that each Party may use such facsimile or electronic mail signatures as evidence of the execution and delivery of this\nAgreement by all Parties to the same extent that an original signature could be used.\n[SIGNATURES ON FOLLOWING PAGE]\n16\nIN WITNESS WHEREQF, the Parties have executed this Agreement as of the date first written above.\nIntegrated Drilling Equipment Holdings Corp.\nBy (Print Name): N. Michael Dion\nSignature: /s/ Michael Dion\nTitle: CFO\nDate: April 7, 2014\nOffshore and Marine Holdings LL.C\nBy (Print Name):  Steve Cope\nSignature: /s/ Steve Cope\nTitle: President/CEO\nDate: April 7, 2014\nSignature Page to Sales Representation, Non-Circumvention and Non-Disclosure Agreement\nwl\nAPPENDIX A\nREPRESENTATION AREA.\nThe Representation Area is the United States of America and Mexico. Additional areas and projects may be determined on a case by case basis in\nthe Company’s discretion.\nAPPENDIX B\nSPECIFIC PROJECT AND COMMISSION BASIS\n(Specific Projects, details and commission basis are to be determined on a case by case basis. The initial commission to be included will\nbe 1% of the net selling price of any order or project)\nLas Isla*\nBig Dog Drilling*\nIHSA\nSavannah Drilling\nLewis\nSidewinder\nSavanna\nNoram\nEurasia Drilling\nIHSA\nTacker\nPEMSA*\nGPA\nLatina*\nGSM*\nGoimar*\nCentral*\nEnsign\nFelderhoff\nArcher*\nLukoil\nSevmash\nGazprom\nRosneft\nSidewinder\nEnsign\nRUS Industrial\nCRC Evans\nBaker Hughes\nOklahoma Rig Co.\nShale Pumps\nServas Energy\nAztec Drilling\nIndependence Drilling\nSidewinder\nPatterson UTI\nNabors\nEnsign\nAPPENDIX C\nRESTRICTED CUSTOMERS.\nwd\nScana\nEnergy Water Solutions\nNDIL\nProjects undertaken by entities identified with an asterisk shall not be subject to the restrictions placed on Restricted Customers for any such\nprojects or PEMEX licitations that are received, initiated or quoted after the date of the Company’s March 24, 2014 pipeline report. For the\navoidance of doubt, any projects that have not been quoted prior to the March 24, 2014 pipeline report and are received, initiated or quoted after\nthe March 24, 2014 pipeline report shall not be subject to the restrictions placed on Restricted Customers in Section 4(f) of this Agreement.\nra\nSCHEDULE 1\nANNUAL CERTIFICATION OF COMPLIANCE\nFOR INTERNATIONAL\nCONSULTANTS, AGENTS AND REPRESENTATIVES\nI [+] a duly authorized representative of [+] (the “Representative”) do hereby certify for and on behalf of such company, that neither I, nor to\nmy knowledge any other person, including but not limited to every officer, director, stockholder, employee, representative and agent of\nRepresentative or its affiliates has made any offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift,\npromise to give, or authorization of the giving of anything of value to any Public Official (defined below) to obtain, retain, or direct business\nor to secure any improper advantage for myself, the Representative, Representative’s affiliates, or any affiliate in violation of any Anti-\nCorruption Laws (defined below).\n"Public Official" means any officer or employee of a government (or any department, agency, or instrumentality thereof, including, but not\nlimited to, national oil companies), a political party, or a public international organization (such as the World Bank), or any person acting in\nan official capacity for or on behalf of any such government, department, agency, or instrumentality, or for or on behalf of any public\ninternational organization, or any political party or official thereof or candidate for political office. “Anti-Corruption Laws” means the\nUnited States Foreign Corrupt Practices Act (“FCPA™) and the anti-corruption and bribery laws of the representation Area, the jurisdiction(s)\nwhere Representative and its applicable affiliates are organized, and the country (ies) where the representation Services will be performed.\nI hereby confirm and agree that should I learn of any of the prohibited activities described above, or if there are any changes in the\nownership or control of the Representative or its affiliates, I will immediately advise:\nIntegrated Drilling Equipment Holdings Corp.\n25311 I-45 North\nBuilding 6\nSpring, Texas 77380\nAttn: N. Michael Dion\nTel: 281-465-9393\nE-mail: mdion@ide-rig.com\n(Signatures on Next Page)\n- *\nI hereby confirm that neither I nor anyone else at [+] or any affiliate that is providing Services is a Public Official.\nI certify under penalty of perjury that the foregoing is true and correct.\nDate:\nBy:\nName:\nTitle:	EX-10.5 8 v374814_ex10-5.htm EXHIBIT 10.5\nCONFIDENTIAL SALES REPRESENTATION AND\nNON-CIRCUMVENTIONNON-DISCLOSURE AGREEMENT\nThis Agreement ("Agreement"), dated April 7, 2014, will constitute a Sales Representation, Non-Circumvention and Non-Disclosure Agreement\nby and between Integrated Drilling Equipment Holdings Corp. ("IDE") (hereinafter referred to as "Company") and Offshore and Marine\nHoldings LLC (the "Representative").\nRECITALS:\nWHEREAS, Company designs, manufactures, sells and/or leases oil and gas drilling rigs and related equipment; and\nWHEREAS, the Representative is the former Chief Executive Officer of Company, a member of the board of directors of the Company and\ncurrently assists in the marketing and sale of drilling equipment; and\nWHEREAS, the Company wishes to appoint and the Representative agrees to accept appointment as an independent sales and marketing\nconsultant for all products and services manufactured or otherwise provided by the Company; and\nWHEREAS, each Party is willing to furnish Confidential Information (as defined below) to the other Party in connection with and subject to the\nterms and conditions of this Agreement; and\nWHEREAS, in order to facilitate the Company's business in the Areas covered by this Agreement, Representative is willing to introduce\nCompany to the customers;\nNOW, THEREFORE, for and in consideration of the foregoing and the covenants and agreements set forth in this Agreement, the Parties,\nintending to be legally bound, do hereby agree as follows:.\n1. Products covered by the Agreement ("Products").\nA. Complete drilling rig packages and systems.\nB. Drilling rig component products manufactured by the Company including, but not limited to, Mast, Drawworks, Substructures,\nMud Pumps, Rotary Tables, SCR Drive Systems, AC VFD Systems, Equipment Installations, Fabrication, and other products and\nservices provided and manufactured by the Company.\n2. Areas covered by the Agreement ("Area").\nA. Representative will have non-exclusive rights for the Area defined in Appendix A of this Agreement, except for specific accounts\nor areas specifically excluded by the Company which may be added or subtracted from Appendix A from time to time by the\nCompany in its sole discretion. Any exceptions or exclusions will be identified by the Company and notified to the Representative\nin\nwriting. However, any specific projects or sales opportunities introduced by the Representative to the Company will become the\nexclusive property of the Representative until cancelled by mutual agreement of Representative and Company.\nB. Conflicts. In areas that may be assigned to and covered by a different representative, the Company will attempt to advise the\nRepresentative of any potential conflict and reduce potential conflicts.\n3. Services.\nThe Representative and Company agree that the Services are to be performed by the Representative acting solely as an independent\ncontractor on behalf of the Company. The parties agree that the Representative will provide the following minimum Services for the\nCompany, all at the direction and request of the Company:\nA. Obtain information relating to the requirements of customers for the Company's Products.\nB.\nAdvise, assist and consult with the Company in the proper preparation and submittal of Company's response to any tenders or other requests\nfor the sale or lease of Products.\nC. Advise, assist and consult with the Company with respect to negotiations relating to the award of a contract for the purchase or lease of\nProducts.\nD. Provide general advice and counsel as well as specific assistance pertaining to local matters which would affect the execution of the contract,\naward and performance of the work relating to the contract.\nE. Assist the Company, to the extent possible, with help in order to Secure necessary permits, bonds and guarantees including, but not limited\nto, customs, importation and exportation permits for the Products and related equipment required by the contract as well as any other local\ngovernmental permits necessary or desirable in connection with importation, operation and exportation of the Products in or from the area\ndefined in Appendix A C cost of the permit, bond or guarantee fees actually incurred is for the account of Company).\nF.\nAssist in obtaining any work permits required for local or foreign personnel to work in the Territory to perform any contract. Any associated\ncost will be reimbursed to the Representative by the Company.\n2\nG. Provide assistance and services in dealing with representatives of the customers and their affiliates.\nH. Provide such assistance and advice as may be reasonably requested by Company relating to facilitating communications between the\nCompany and the customers throughout the term of any contracts.\nI.\nNotify the Company of any additional potential projects or sales or leases of Products for the customers.\nJ. Provide such other services as Company may reasonably determine from time to time may be necessary or helpful in connection with its\noperations relating to the contracts.\nK. Assist the Company and the Customer to establish payment terms for any Products that are agreeable to the Company and the customer.\nL. Assist in collection of payments and amounts due from customer and assist in resolving any disputes relating thereto.\n4. Commission payment and terms.\nA. The Company agrees to pay the Representative a commission of 1%, based upon the final net selling price of any products and\nservices by the Company to a Customer, denominated and payable in U.S. Dollars, as set forth in Appendix B of this Agreement\nfor\nspecific projects. Typically, the commission will be set by Company for each project and will be based upon the net sales price of\nany Products sold, by the Company to a customer. For the avoidance of doubt, the net selling price will be exclusive of any\nshipping/freight charges, insurance, interest, travel and living expenses, taxes or other similar costs reimbursed to the Company.\nCompany reserves the right to set a specific commission basis for each project.\nB.\nReduction of commissions. In certain cases, it may be necessary for the Company to reduce the selling price in order to obtain an\norder. In this event, the Company and the Representative both agree to a proportional reduction of the commission proportional to\nthe reduction in selling price.\nC.\nExcess commissions. In some cases, the Representative may have an opportunity to earn more than the basic commission as\ndefined in Appendix B. In these cases, the Representative and the Company will agree upon any excess compensation in advance of\nthe sale or lease. The Company reserves the right to set any (or no) specific excess commission.\n3\nD. Payment of commissions. Payment of commissions will be paid on a pro-rata basis to the Representative based on the payment\nterms accepted by the Company from the end user/customer. All commissions will be paid to the Representative within ten (10)\ndays after receipt of the Customer's payment by the Company.\nE. Cancellations. In cases of cancellations, the Company will be under no obligation to pay unearned commissions to the\nRepresentative except for payments received by the Company that are not refunded to the end user/customer. In cases where\ncancellations require a refund of payments made to the Company, the Representative agrees to refund any commissions received\nfrom the Company that have been paid by the Company to the Representative associated with such refund of payments.\nF. Restricted Customers. The Representative shall not be entitled to commissions for any sales by the Company to (i) any customers to\nwhich the Company has made sales of any kind during the two-year period ending on the date hereof or (ii) the customers set forth\non Appendix C (the "Restricted Customers") even in the event that the Representative, directly or indirectly, facilitates or assists in\nsuch sales. Prior to contacting any customer, the Representative shall notify the Company that he intends to contact such customer\nand shall only contact such customer with the prior written consent of the Company.\n5.\nAcceptance of sales/contracts.\nThe Company is the sole authority for accepting or rejecting any prospective sales brought in by the Representative. The Representative\nhas no authority to contractually or otherwise bind the Company in any manner. The Representative shall not be permitted to quote\nprices that deviate from the Company's current price list without the prior written approval of the Chief Executive Officer and the Chief\nFinancial Officer of the Company.\n6. Expenses.\nThe Representative and the Company each agree to pay its own expenses incurred in the normal course of business and in execution of\nthis contract, unless agreed otherwise in writing or in this Agreement.\n7. Product Representation.\nThe Representative hereby agrees to represent the Company and the Products and Services provided by the Company and not to\nrepresent products or enter into a representation relationship which would compete with the Products and Services that are the subject of\nthis Agreement, provided that the Representative shall be free to sell used drilling equipment and other used products, provided further\nthat the Company shall have a right of first refusal to engage in any refurbishment-related work on used equipment or products sold\nby\nthe Representative.\n4\n8. Taxes.\nEach party shall pay their own sales, use, franchise, income or other taxes.\n9. Documentation, sales and marketing and other assistance.\nThe Company will provide the Representative with all marketing data necessary including drawings, literature, contract preparation,\nquality assurance/quality control manuals and other sales, marketing and engineering as necessary and reasonably required by the\nRepresentative in the normal course of business of representing the Company. The Company will assist the Representative with all\nreasonable requests for assistance from the sales, engineering, production or other departments of the Company, on the same basis as the\nCompany provides such support for all of its sales representatives.\n10. General Business Ethics.\nA. The Representative represents and warrants that it is familiar with relevant laws in the assigned Area, and that neither the receipt of\nfees under this Agreement nor the performance by the Company or the Representative of obligations and Services under this\nAgreement is in any respect a violation of applicable laws, rules, orders, prohibitions, or regulations in the assigned Area. The\nRepresentative shall comply in all respects with all applicable laws in the assigned Area dealing with bribery and corruption,\nas\nmay be amended from time to time.\nB. The Representative has not and will not offer, promise or provide any thing of value, directly or indirectly, to any Government\nOfficial, or any other person or entity, for the purpose of influencing any decision, action or inaction in order to secure or maintain\nan improper advantage in connection with or relating to the subject matter of this Agreement or any supplement or amendment\nhereto, or in order to direct an improper advantage to any other person or entity or otherwise act in violation of the Foreign Corrupt\nPractices Act (the "FCPA") of the United States of America. The offer, promise or provision of any thing of value proscribed by\nthis paragraph is a "Prohibited Payment."\nC. "Government Official," as that term is used throughout this Article 10, includes any official, employee or representative of any\ngovernment (or agency, instrumentality, or company owned or controlled by any government), any political party or employee\nthereof, or any candidate for political office.\n5\nD. If the Representative receives a request for a Prohibited Payment in connection with or relating to the subject matter of this\nAgreement or any supplement or amendment hereto, then the Company must be notified immediately.\nE. The Representative agrees and certifies that it is familiar with, is in compliance with, and will continue to comply strictly with all\napplicable anti-corruption laws and regulations and will not engage in or support any occurrence of bribery or other corrupt\npractices.\nF. The Representative shall not do business with any person or third-party entity where it knows or suspects the existence of any\nillegal, unethical or questionable practices by such person or third-party entity, its officers, employees or agents.\nG. All financial transactions by Representative hereunder shall be recorded in a timely, complete and accurate manner in accordance\nwith generally accepted accounting principles consistently applied. Representative invoices and supporting documentation, as well\nas\nall other documents and accounting entries, shall not be false, fictitious or intentionally misleading in any way. The\nRepresentative shall sufficiently document all payments and keep appropriate receipts. The Representative shall make available to\nthe Company any invoices or records corresponding to such payments at the Company's request upon reasonable notice.\nH.\nThe Company shall have reasonable access to the Representative's books and records pertaining to activities for or on behalf of the\nCompany, and the right to audit these records on demand. The Company may elect to designate a third party to conduct such an\naudit. The Company may, inspect the Representative's premises. The Representative shall fully cooperate in any due diligence or\naudit conducted by or on behalf of the Company. Any associated cost will be for the account of The Company.\nI.\nUpon its discovery of a breach of any of the representations and warranties, or any other provision of this Agreement, the\nRepresentative shall immediately report such breach to the Company.\nJ.\nThe Representative shall notify the Company if, at any time during the course of this Agreement, the Representative becomes\naware of any change of circumstances that could materially impact the Representative's performance under this Agreement.\n6\n11. Compliance with FCPA\nA. The Representative represents and warrants that, in connection with the business to be conducted under this Agreement, no\npayment has been made, and no payment will be made, by Representative or by any of its officers, employees, agents or subsidiary\nor affiliated companies to any officer, official or employee (or to any agent or other person acting on behalf of such a person) of any\nnation, national company or political Party in violation of the Foreign Corrupt Practices Act (the "FCPA") of the United States of\nAmerica that prohibits payment or giving of anything of value, either directly or indirectly, by an American company to an official\nof a foreign government for the purpose of influencing an act or decision in his or her official capacity, or inducing that official to\nuse his or her influence with the foreign government, to assist a company in obtaining or retaining business for, or with, or directing\nbusiness to, any person. The Representative further represents and warrants that it shall not undertake any action which is\nin\nviolation of the anti-bribery provision of the OECD. This Agreement shall automatically terminate without notice upon Company\nlearning of any violation of this clause, and the Company shall have no further obligations to amounts owing, or otherwise, under\nthis Agreement from and after the date of said violation. Furthermore, the Representative agrees to defend, indemnity and hold the\nCompany harmless from and against any claims, actions or causes of action for damages, fines, penalties, (including interest\nthereon and attorney fees) arising out of any violation of this clause. At the request of Company or at least annually, the\nRepresentative shall provide a certification in a form substantially similar to Schedule 1, attached to and incorporated herein by\nreference.\nB.\nCompany warrants that it will not knowingly request any service from Representative, which might constitute a violation of the\napplicable laws of The United States of America or any national or local government having jurisdiction over the Parties, and\nno\nofficer or employee of Company has authority to give directions to Representative, which is contrary to the laws of The United\nStates of America or any national or local government having jurisdiction over the Parties.\n12. Conformity. with Local Laws\nEach Party agrees to comply with all applicable laws, orders, regulations, directions, restrictions and limitations of the governments\n("Laws") having jurisdiction of the Parties hereto and over the Services. Each Party agrees to defend, indemnify and hold the other\nParty harmless from and against any claims, actions or causes of actions for damages, penalties, fines or otherwise (including interest\nthereon and attorney fees) for their respective violation of the Laws.\n7\n13. Representations of Representative\nThe Representative represents and warrants to the Company that:\n(a)\nThe Representative (i) is a corporation or limited liability company duly organized, validly existing and in good standing under\nthe laws of the jurisdiction of its incorporation; (ii) has its principal place of business located at its address set forth on the\nsignature page hereof; (iii) has all requisite corporate or other power, and has all material governmenta licenses,\nauthorizations, consents and approvals necessary to own its assets and carry on its business as now being or as proposed to be\nconducted; and (iv) is qualified to do business and is in good standing in all jurisdictions in which the services required to be\nperformed by it under this Agreement make such qualifications necessary.\n(b)\nThere are no legal or arbitral proceedings or any proceedings by or before any governmental or regulatory authority or agency,\nnow pending or (to the knowledge of the Representative) threatened against the Representative which, if adversely determined,\ncould (either individually or in the aggregate) have a Material Adverse Effect (as hereafter defined). For purposes hereof, the\nterm "Material Adverse Effect" means a material adverse effect on (i) the ability of the Representative to perform its services\nhereunder, (ii) the validity or enforceability of this Agreement, or (iii) the rights and remedies of the Company hereunder.\n(c)\nThe Parties have all necessary corporate and other power, authority and legal right to execute, deliver and perform their\nrespective obligations hereunder; the execution, delivery and performance by the Parties of this Agreement have been duly\nauthorized by all necessary corporate and other action on their part; and this Agreement has been duly and validly executed by\nthe Representative and Company and constitutes its legal, valid and binding obligation, enforceable against the Parties\nin\naccordance with its terms.\n14. Non-disclosure agreement.\nA Party receiving Confidential Information may also be referred to herein as a "Recipient," and a Party disclosing Confidential\nInformation may also be referred to herein as a "Discloser."\n8\nAs used in this Agreement, "Confidential Information" shall mean information, technical data or know-how disclosed by Discloser or\nany of Discloser's employees, agents, affiliates, contractors or representatives (each a "Discloser Representative" and collectively, the\n"Discloser Representatives") to Recipient or any of Recipient's employees, agents, affiliates, contractors or representatives (each a\n"Recipient Representative" and collectively, the "Recipient Representatives"), including, but not limited to: customer/supplier lists and\nidentities, agreements, characteristics, formulations, specifications, sales and marketing information, sales, figures, pricing and cost\ninformation, marketing plans and business plans, forecasts, financial information, budgets, databases, computer programs, software\n(whether in object or source code), research papers, projections, practices, procedures, processes, routines, formulae, trade secrets,\nideas, innovations, inventions, technology, manufacturing know-how, machinery, drawings, photographs, equipment, devices, tools,\ndiscoveries, improvements, research or development and test results, data, formats, plans, sketches, models, any intellectual property,\npatents, trademarks, and copyrights and applications therefore, all rights and information necessary to produce and market Discloser's\nproducts or to conduct the business of Discloser as currently conducted, or which pertains in any manner to subjects or knowledge of\nDiscloser's business or operation, or the information, tangible or intangible, owned, developed or possessed by Discloser, whether or not\nmarked as "confidential," and any other information or procedures that are treated as confidential by Discloser or its affiliates, suppliers\nor customers. Confidential Information shall include all such information that has been or may hereafter be provided, shown to, or\nreviewed by Recipient or any Recipient Representative, irrespective of the manner in which such information is communicated, and also\nincludes all notes, analyses, compilations, studies, summaries and other material prepared by Recipient or any Recipient Representative\ncontaining or based, in whole or in part, on any information included in any of the foregoing. Confidential Information also includes\ninformation of third parties in possession of Discloser that Discloser is obligated to maintain in confidence. Confidential Information\nsubject to this Agreement may be in intangible form, such as unrecorded knowledge, ideas or conceptions or information communicated\norally or by visual observation, or may be embodied in tangible form, such as a document. For purposes of this Agreement, the term\n"document" includes written memoranda, drawings, training materials, specifications, notebook entries, photographs, graphic\nrepresentations, firmware, computer information or software, information communicated by other electronic or magnetic media, or\nmodels.\nA. Notwithstanding the provisions of this Section 11 of the Agreement or any other provision of this Agreement, Confidential\nInformation" shall not include any of the following, even if marked or designated "Confidential":\ni.\nInformation that Recipient can substantiate was known by Recipient prior to disclosure by Discloser or any Discloser\nRepresentative to Recipient or any Recipient Representative under this Agreement;\nii. Information that was disclosed to Recipient or any Recipient Representative by a third party not known by Recipient to be\nunder an obligation of confidentiality with respect to such information;\niii. Information that is or becomes generally available to the public through no fault of Recipient or any Recipient\nRepresentative in breach of this Agreement;\n9\niv.\nInformation required to be disclosed by judicial mandate or other requirement of applicable law, provided that Recipient\ncomplies with the provisions of Section 11.F. of this Agreement; or\nV.\nInformation that is independently developed by Recipient or any Recipient Representative without use of or reference to\nany of Discloser's Confidential Information and without breach by Recipient or any Recipient Representative of any\nconfidentiality agreement or obligation to Discloser, as evidenced by Recipient's written records.\nB. With respect to Confidential Information disclosed by Discloser or any Discloser Representative to Recipient or any Recipient\nRepresentative, Recipient shall, and shall cause each Recipient Representative to:\ni.\nreceive, review, regard, preserve, hold and treat all Confidential Information as secret and confidential and to use its best\nefforts to prevent disclosure by any Recipient Representative, directly or indirectly, to any person or entity that does not\nreasonably need to know the Confidential Information for the specific purpose relating to the Services provided to the\nCompany or the Products;\nii.\nrefrain from using any Confidential Information except for the limited purpose of furthering the Services to be provided\nrelated to the transactions for the Products;\niii. take all necessary and appropriate steps to maintain the confidentiality of any Confidential Information disclosed to\nRecipient or any Recipient Representative, including ensuring the confidentiality of any Confidential Information provided\nto the Recipient Representatives and any successors or assigns of any of them, including without limitation, entering into\nconfidentiality agreements with such persons or entities in a form substantially similar to this Agreement or other\nagreements pursuant to which such persons or entities agree to be bound by the terms and conditions of this Agreement as\nif such persons or entities were Recipient;\niv.\nTake all necessary and appropriate steps to prevent use of the Confidential Information in any way that would violate\nfederal or state securities or other applicable laws;\nV.\nRefrain from copying or duplicating, in any manner whatsoever except to the extent reasonably necessary for the\nfurtherance of the transactions involving the Products or as otherwise permitted herein, Confidential Information without\nthe express written permission of Discloser;\n10\nvi.\nRefrain from referring, orally or in writing, to Discloser or the Transactions in any press releases, promotiona material,\npresentations to third parties (other than Discloser), in business resumes, or in any other information provided to third\nparties, without the prior written consent of Discloser;\nvii. Refrain from discussing or referring to any findings, conclusions, recommendations or the underlying data thereof with\nany third party (other than Discloser) arising out of any Confidential Information or the transactions involving the Products\nor the Services provided to the Company, without the prior written consent of Discloser;\nviii. Use the Confidential Information solely for the purpose of furthering the Transactions and not to use any of the\nConfidential Information for the benefit of any person or entity other than Discloser without the prior written consent of\nDiscloser; and\nix. With respect to any equipment, component, software or other items sold, leased, loaned or otherwise delivered by\nDiscloser or any Discloser Representative to Recipient or any Recipient Representative in connection with the Services or\nthe Products, refrain from reverse engineering, disassembling, decompiling or otherwise analyzing the physical\nconstruction of any such items.\nC. Recipient may only disclose the Confidentia Information to Recipient's Representatives having a bona fide need to know the\nConfidential Information in the course of performing their duties in connection with the Services or Products. Recipient\nwill\nsegregate or otherwise maintain Confidential Information SO as to prevent any commingling of the same with the confidential\nproprietary materials of others. In the event of any unauthorized disclosure of Confidential Information, Recipient shall notify\nDiscloser immediately. Recipient shall be fully responsible for and accountable to Discloser for any damages Discloser or any\naffiliate of Discloser suffers arising out of or related to any disclosure or use of Confidential Information in breach of this\nAgreement by Recipient or any Recipient Representative and shall, at Recipient's sole cost and expense, take all reasonably\nnecessary measures (including, but not limited to, court proceedings) to restrain such persons or entities from unauthorized\ndisclosure or use of Confidential Information.\n11\nD. If either Party determines that it shall not proceed with the Services pursuant to this Agreement, such Party will promptly notify the\nother Party of such determination. Recipient further agrees that upon a determination by either Party not to proceed with the\nServices, upon termination of this Agreement pursuant to Section 20 of this Agreement or upon written request of Discloser,\nRecipient will promptly (a) return all Confidential Information and all records, notes, and other written, printed, computer\ngenerated or other materials in its possession pertaining to the Confidential Information and not retain copies, extracts or other\nreproductions of such materials; (b) destroy all documents, memoranda, notes and other writings (whether in electronic or hard\ncopy form) prepared by Recipient or any Recipient Representative based upon or incorporating any Confidential Information\nreceived from Discloser or any Discloser Representative, including all documents containing any abstracts or excerpts of any\nConfidential Information; and (c) certify in writing to Discloser that Recipient has complied with its obligations hereunder. The\nreturn or destruction of materials does not relieve Recipient from complying with the other terms and conditions of this Agreement.\nE.\nNotwithstanding any other provision of this Agreement, the Parties agree that:\ni.\nAll rights to Confidential Information disclosed pursuant to this Agreement are reserved to and retained by Discloser, and\nDiscloser shall be and remain free to disclose or provide the Confidential Information to whomever in any manner\nDiscloser chooses;\nii.\nExcept as expressly provide in Section 15 below, nothing in this Agreement will diminish or restrict in any way the rights\nthat each Party has to develop its products, services and business or otherwise make available its products and services to\nany customer or third party in the ordinary course of its business;\niii. No license or conveyance of any rights or ownership is granted or implied by this Agreement or the disclosure of any\nConfidential Information hereunder, and Discloser expressly reserves any and all rights that it may have in and to the\nConfidential Information;\niv. No license is hereby granted, directly or indirectly, under any know-how, including any patent, invention, discovery, idea,\ncopyright or other intellectual or industrial property right now or in the future held, made, obtained or licensable by\nDiscloser; and\nV. The timing of access and the nature and extent of the Confidential Information to be made available to Recipient will be at\nthe discretion of Discloser.\n12\nF.\nIn the event Recipient or any Recipient Representative is served with an administrative or court subpoena or order requiring any\nConfidential Information to be disclosed, Recipient shall immediately thereafter notify Discloser orally and in writing of the fact of\nsuch service, the information requested and the time to respond thereto, and in all events, shall use its best efforts to provide\nDiscloser with such notice sufficiently in advance of the deadline to respond to allow Discloser sufficient time to challenge such\nsubpoena or order if Discloser elects to do SO. Recipient shall cooperate fully with Discloser, at Discloser's expense, in challenging\nany subpoena or order requiring the disclosure of Confidential Information. Should Discloser decide not to challenge any such\nsubpoena or order, then Recipient or the Recipient Representative, as applicable, may disclose such information as, in the\nreasonable judgment of Recipient's counsel, is required to be disclosed under such subpoena or order. Discloser shall advise\nRecipient within five (5) business days of receipt of notice thereof whether Discloser intends to challenge the subpoena or order.\nG. Recipient hereby acknowledges and agrees that neither Discloser nor any Discloser Representative makes any representations or\nwarranties whatsoever, express or implied, as to the accuracy, completeness or correctness of any Confidential Information supplied\nhereunder, nor shall any such representations or warranties be implied. Neither Discloser nor Discloser's officers, directors or\nshareholders nor any of the Discloser Representatives shall have any liability whatsoever to Recipient or any Recipient\nRepresentative arising out of or resulting from the use of or reliance on any Confidential Information. Discloser retains the right to\ndetermine, in its sole discretion, what information, properties and personnel it wishes to make available to Recipient hereunder.\n15. The Parties acknowledge that in order to facilitate the Services, it may be necessary for Representative to introduce the Customers to the\nCompany for direct discussions regarding the sales of products. The Company hereby expressly agrees not to, directly or indirectly\nthrough one or more of the Company's affiliates or intermediaries, take any action for sole purpose of depriving the Representative of\nany commission that would otherwise be payable with respect to such sales.\n16. Nothing in this Agreement shall be construed as constituting any offer by, or as creating any obligation on the part of, either Party to\nenter into any transaction with the other or with any other person or entity.\n17.\nThe Parties agree that, because an award of money damages may be inadequate for any breach of Section 11 of this Agreement, and any\nsuch\nbreach\nmay\ncause\nthe\nnon-breaching\nParty\nirreparable\nharm,\nin\nthe\nevent\nof\na\nbreach\nor\nthreatened\nbreach\nof\nthe\nterms\nof\nthis\nAgreement by a Party, the non-breaching Party shall be entitled, without requirement of posting a bond or other security, to an\ninjunction or decree of specific performance prohibiting any such breach or disclosure or misuse of any Confidential Information. In\naddition to injunctive relief, the non-breaching Party shall have all other rights and remedies afforded it by law.\n13\n18.\nThis Agreement shall be construed, governed by, enforced and interpreted, and the relationship between the Parties determined in\naccordance with, the laws of the State of Texas without giving effect to any choice or conflict of laws rules, provisions or principles\n(whether of the State of Texas or any other jurisdiction) the application of which would result in the application of the laws of any\njurisdiction other than the State of Texas.\n19.\nThe Parties will attempt in good faith to resolve any dispute arising out of or relating to this Agreement or the construction\ninterpretation, performance, breach, termination, enforceability or validity hereof (each a "Dispute") through discussions between their\nrespective representatives. Any Dispute that cannot be resolved through discussions between the Parties' respective representatives\narising out of or relating to this Agreement, including the annexes and schedules hereto, will be fully and finally settled by arbitration in\naccordance with the provisions set forth in Section 13 of the Representative's Employment Agreement with the Company, dated as of\nOctober 19, 2012. Notwithstanding this provision, nothing contained herein shall in any way be deemed to prohibit the Company or the\nRepresentative from seeking temporary equitable relief from a court of competent jurisdiction in the event of a breach or threatened\nbreach by the other party of this Agreement.\n20. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be (i) sent by an overnight\ncourier service that provides proof of receipt (ii) mailed by registered or certified mail (postage prepaid, return receipt requested) or (iii)\ntelecopied to the Parties at the following addresses (or at such other address for a Party as shall be specified by like notice):\nIf to Company:\nIntegrated Drilling Equipment Holdings Corp.\n25311 I-45 North, Building 6\nSpring, Texas, USA 77380\nAttn: N. Michael Dion\nTel: 281-465-9393\nE-mail: mdion@ide-rig.com\nIf to Representative:\nOffshore and Marine Holdings LLC\nStephen D. Cope\n7303 Augusta Drive\nSpring, TX 77389\nTel: (713) 253-0130\nIf this Agreement provides for a designated period after a notice within which to perform an act, such period shall commence on the\ndate of receipt or refusal of the notice. If this Agreement requires the exercise of a right by notice on or before a certain date or within a\ndesignated period, such right shall be deemed exercised on the date of delivery to the courier service, tele-copying or mailing of the\nnotice pursuant to which such right is exercised.\n14\n21. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior\nrepresentations, agreements and understandings, whether oral or written, between the Parties with respect to the subject matter hereof.\nNo representations or warranties have been made relating to the subject matter hereof other than those expressly set forth in this\nAgreement. This Agreement may not be amended, modified or supplemented except by means of a written instrument designated as\nsuch and executed by an authorized officer of each of the Parties.\n22. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable by a court, tribunal or other forum of competent\njurisdiction for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement\n(including, without limitation, each portion of any subdivision of this Agreement containing any such provision held to be invalid,\nillegal or unenforceable) shall not in any way be affected or impaired thereby; (b) such provision will be deemed reformed to the extent\nnecessary to conform to applicable Law and to give maximum effect to the intent of the Parties, or, if that is not possible, such provision\nshall be deemed severed from this Agreement; and (c) to the fullest extent possible, the provisions of this Agreement (including, without\nlimitation, each portion of any subdivision of this Agreement containing any such provision held to be invalid, illegal or unenforceable,\nthat is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held\ninvalid, illegal or unenforceable.\n23. Either Party hereto may terminate this Agreement by thirty (30) days written notice to the other Party at its address specified herein, but\nno such termination shall affect obligations already in effect.\n24. This Agreement is personal to each of the Parties and may not be assigned or otherwise transferred, in whole or in part, by either Party\nwithout the prior written consent of the other Party.\n25. No failure or delay by a Party in exercising its rights, powers or privileges under this Agreement shall constitute a waiver thereof, nor\nshall any single or partial exercise of such rights, powers or privileges preclude any further exercise thereof. No waiver of any provision\nshall be binding upon a Party unless it is in writing and signed by an authorized officer of such Party.\n15\n26. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original copy of this Agreement, but\nall of which, when taken together, shall be deemed to constitute one and the same agreement. The Parties may sign and deliver this\nAgreement by facsimile transmission or by electronic mail in "portable document format." Each Party agrees that the delivery of this\nAgreement by facsimile or by electronic mail in "portable document format" shall have the same force and effect as delivery of original\nsignatures, and that each Party may use such facsimile or electronic mail signatures as evidence of the execution and delivery of this\nAgreement by all Parties to the same extent that an original signature could be used.\n[SIGNATURES ON FOLLOWING PAGE]\n16\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.\nIntegrated Drilling Equipment Holdings Corp.\nBy (Print Name): N. Michael Dion\nSignature: /s/ Michael Dion\nTitle: CFO\nDate: April 7, 2014\nOffshore and Marine Holdings LLC\nBy (Print Name): Steve Cope\nSignature: /s/ Steve Cope\nTitle: President/CEO\nDate: April 7, 2014\nSignature Page to Sales Representation, Non-Circumvention and Non-Disclosure Agreement\nAPPENDIX A\nREPRESENTATION AREA.\nThe Representation Area is the United States of America and Mexico. Additional areas and projects may be determined on a case by case basis\nin\nthe Company's discretion.\nAPPENDIX B\nSPECIFIC PROJECT AND COMMISSION BASIS\n(Specific Projects, details and commission basis are to be determined on a case by case basis. The initial commission to be included will\nbe 1% of the net selling price of any order or project)\nAPPENDIX C\nRESTRICTED CUSTOMERS.\nLas Isla*\nBig Dog Drilling*\nIHSA\nSavannah Drilling\nLewis\nSidewinder\nSavanna\nNoram\nEurasia Drilling\nIHSA\nTacker\nPEMSA*\nGPA\nLatina*\nGSM*\nGoimar*\nCentral**\nEnsign\nFelderhoff\nArcher*\nLukoil\nSevmash\nGazprom\nRosneft\nSidewinder\nEnsign\nRUS Industrial\nCRC Evans\nBaker Hughes\nOklahoma Rig Co.\nShale Pumps\nServas Energy\nAztec Drilling\nIndependence Drilling\nSidewinder\nPatterson UTI\nNabors\nEnsign\nScana\nEnergy Water Solutions\nNDIL\n>\nProjects undertaken by entities identified with an asterisk shall not be subject to the restrictions placed on Restricted Customers for any such\nprojects or PEMEX licitations that are received, initiated or quoted after the date of the Company's March 24, 2014 pipeline report. For the\navoidance of doubt, any projects that have not been quoted prior to the March 24, 2014 pipeline report and are received, initiated or quoted after\nthe March 24, 2014 pipeline report shall not be subject to the restrictions placed on Restricted Customers in Section 4(f) of this Agreement.\nSCHEDULE 1\nANNUAL CERTIFICATION OF COMPLIANCE\nFOR INTERNATIONAL\nCONSULTANTS, AGENTS AND REPRESENTATIVES\nI a duly authorized representative of [] (the "Representative") do hereby certify for and on behalf of such company, that neither I, nor to\nmy knowledge any other person, including but not limited to every officer, director, stockholder, employee, representative and agent of\nRepresentative or its affiliates has made any offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift,\npromise to give, or authorization of the giving of anything of value to any Public Official (defined below) to obtain, retain, or direct business\nor\nto secure any improper advantage for myself, the Representative, Representative's affiliates, or any affiliate in violation of any Anti-\nCorruption Laws (defined below).\n"Public Official" means any officer or employee of a government (or any department, agency, or instrumentality thereof, including, but not\nlimited to, national oil companies), a political party, or a public international organization (such as the World Bank), or any person acting in\nan\nofficial\ncapacity for or on behalf of any such government, department, agency, or instrumentality, or for or on behalf of any public\ninternational organization, or any political party or official thereof or candidate for political office. "Anti-Corruption Laws" means the\nUnited States Foreign Corrupt Practices Act ("FCPA") and the anti-corruption and bribery laws of the representation Area, the jurisdiction(s)\nwhere Representative and its applicable affiliates are organized, and the country (ies) where the representation Services will be performed.\nI hereby confirm and agree that should I learn of any of the prohibited activities described above, or if there are any changes in the\nownership or control of the Representative or its affiliates, I will immediately advise:\nIntegrated Drilling Equipment Holdings Corp.\n25311 I-45 North\nBuilding 6\nSpring, Texas 77380\nAttn: N. Michael Dion\nTel: 281-465-9393\nE-mail: mdion@ide-rig.com\n(Signatures on Next Page)\nI hereby confirm that neither I nor anyone else at [] or any affiliate that is providing Services is a Public Official.\nI certify under penalty of perjury that the foregoing is true and correct.\nDate:\nBy:\nName:\nTitle:	EX-10 .5 8 v374814_ex10-5 .htm EXHIBIT 10.5\nCONFIDENTIAL SALES REPRESENTATION AND\nNON-CIRCUMVENTION/NON-DISCLOSURE AGREEMENT\nThis Agreement (“Agreement”), dated April 7, 2014, will constitute a Sales Representation, Non-Circumvention and Non-Disclosure Agreement\nby and between Integrated Drilling Equipment Holdings Corp. (“IDE”) (hereinafter referred to as “Company”) and Offshore and Marine\nHoldings LLC (the “Representative”).\nRECITALS:\nWHEREAS, Company designs, manufactures, sells and/or leases oil and gas drilling rigs and related equipment; and\nWHEREAS, the Representative is the former Chief Executive Officer of Company, a member of the board of directors of the Company and\ncurrently assists in the marketing and sale of drilling equipment; and\nWHEREAS, the Company wishes to appoint and the Representative agrees to accept appointment as an independent sales and marketing\nconsultant for all products and services manufactured or otherwise provided by the Company; and\nWHEREAS, each Party is willing to furnish Confidential Information (as defined below) to the other Party in connection with and subject to the\nterms and conditions of this Agreement; and\nWHEREAS, in order to facilitate the Company’s business in the Areas covered by this Agreement, Representative is willing to introduce\nCompany to the customers;\nNOW, THEREFORE, for and in consideration of the foregoing and the covenants and agreements set forth in this Agreement, the Parties,\nintending to be legally bound, do hereby agree as follows:.\n1. Products covered by the Agreement (“Products”).\nA. Complete drilling rig packages and systems.\nB. Drilling rig component products manufactured by the Company including, but not limited to, Mast, Drawworks, Substructures,\nMud Pumps, Rotary Tables, SCR Drive Systems, AC VFD Systems, Equipment Installations, Fabrication, and other products and\nservices provided and manufactured by the Company.\n2. Areas covered by the Agreement (“Area”).\nA. Representative will have non-exclusive rights for the Area defined in Appendix A of this Agreement, except for specific accounts\nor areas specifically excluded by the Company which may be added or subtracted from Appendix A from time to time by the\nCompany in its sole discretion. Any exceptions or exclusions will be identified by the Company and notified to the Representative\nin writing. However, any specific projects or sales opportunities introduced by the Representative to the Company will become the\nexclusive property of the Representative until cancelled by mutual agreement of Representative and Company.\nB. Conflicts. In areas that may be assigned to and covered by a different representative, the Company will attempt to advise the\nRepresentative of any potential conflict and reduce potential conflicts.\n3. Services.\nThe Representative and Company agree that the Services are to be performed by the Representative acting solely as an independent\ncontractor on behalf of the Company. The parties agree that the Representative will provide the following minimum Services for the\nCompany, all at the direction and request of the Company:\nA. Obtain information relating to the requirements of customers for the Company’s Products.\nB. Advise, assist and consult with the Company in the proper preparation and submittal of Company’s response to any tenders or other requests\nfor the sale or lease of Products.\nC. Advise, assist and consult with the Company with respect to negotiations relating to the award of a contract for the purchase or lease of\nProducts.\nD. Provide general advice and counsel as well as specific assistance pertaining to local matters which would affect the execution of the contract,\naward and performance of the work relating to the contract.\nE. Assist the Company, to the extent possible, with help in order to Secure necessary permits, bonds and guarantees including, but not limited\nto, customs, importation and exportation permits for the Products and related equipment required by the contract as well as any other local\ngovernmental permits necessary or desirable in connection with importation, operation and exportation of the Products in or from the area\ndefined in Appendix A ( cost of the permit, bond or guarantee fees actually incurred is for the account of Company).\nF. Assist in obtaining any work permits required for local or foreign personnel to work in the Territory to perform any contract. Any associated\ncost will be reimbursed to the Representative by the Company.\n2\nG. Provide assistance and services in dealing with representatives of the customers and their affiliates.\nH. Provide such assistance and advice as may be reasonably requested by Company relating to facilitating communications between the\nCompany and the customers throughout the term of any contracts.\nI. Notify the Company of any additional potential projects or sales or leases of Products for the customers.\nJ. Provide such other services as Company may reasonably determine from time to time may be necessary or helpful in connection with its\noperations relating to the contracts.\nK. Assist the Company and the Customer to establish payment terms for any Products that are agreeable to the Company and the customer.\nL. Assist in collection of payments and amounts due from customer and assist in resolving any disputes relating thereto.\n4. Commission payment and terms.\nA. The Company agrees to pay the Representative a commission of 1%, based upon the final net selling price of any products and\nservices by the Company to a Customer, denominated and payable in U.S. Dollars, as set forth in Appendix B of this Agreement for\nspecific projects. Typically, the commission will be set by Company for each project and will be based upon the net sales price of\nany Products sold, by the Company to a customer. For the avoidance of doubt, the net selling price will be exclusive of any\nshipping/freight charges, insurance, interest, travel and living expenses, taxes or other similar costs reimbursed to the Company.\nCompany reserves the right to set a specific commission basis for each project.\nB. Reduction of commissions. In certain cases, it may be necessary for the Company to reduce the selling price in order to obtain an\norder. In this event, the Company and the Representative both agree to a proportional reduction of the commission proportional to\nthe reduction in selling price.\nC. Excess commissions. In some cases, the Representative may have an opportunity to earn more than the basic commission as\ndefined in Appendix B. In these cases, the Representative and the Company will agree upon any excess compensation in advance of\nthe sale or lease. The Company reserves the right to set any (or no) specific excess commission.\n3\nD. Payment of commissions. Payment of commissions will be paid on a pro-rata basis to the Representative based on the payment\nterms accepted by the Company from the end user/customer. All commissions will be paid to the Representative within ten (10)\ndays after receipt of the Customer’s payment by the Company.\nE. Cancellations. In cases of cancellations, the Company will be under no obligation to pay unearned commissions to the\nRepresentative except for payments received by the Company that are not refunded to the end user/customer. In cases where\ncancellations require a refund of payments made to the Company, the Representative agrees to refund any commissions received\nfrom the Company that have been paid by the Company to the Representative associated with such refund of payments.\nF. Restricted Customers. The Representative shall not be entitled to commissions for any sales by the Company to (i) any customers to\nwhich the Company has made sales of any kind during the two-year period ending on the date hereof or (ii) the customers set forth\non Appendix C (the “Restricted Customers”) even in the event that the Representative, directly or indirectly, facilitates or assists in\nsuch sales. Prior to contacting any customer, the Representative shall notify the Company that he intends to contact such customer\nand shall only contact such customer with the prior written consent of the Company.\n5. Acceptance of sales/contracts.\nThe Company is the sole authority for accepting or rejecting any prospective sales brought in by the Representative. The Representative\nhas no authority to contractually or otherwise bind the Company in any manner. The Representative shall not be permitted to quote\nprices that deviate from the Company’s current price list without the prior written approval of the Chief Executive Officer and the Chief\nFinancial Officer of the Company.\n6. Expenses.\nThe Representative and the Company each agree to pay its own expenses incurred in the normal course of business and in execution of\nthis contract, unless agreed otherwise in writing or in this Agreement.\n7. Product Representation.\nThe Representative hereby agrees to represent the Company and the Products and Services provided by the Company and not to\nrepresent products or enter into a representation relationship which would compete with the Products and Services that are the subject of\nthis Agreement, provided that the Representative shall be free to sell used drilling equipment and other used products, provided further\nthat the Company shall have a right of first refusal to engage in any refurbishment-related work on used equipment or products sold by\nthe Representative.\n4\n8. Taxes.\nEach party shall pay their own sales, use, franchise, income or other taxes.\n9. Documentation, sales and marketing and other assistance.\nThe Company will provide the Representative with all marketing data necessary including drawings, literature, contract preparation,\nquality assurance/quality control manuals and other sales, marketing and engineering as necessary and reasonably required by the\nRepresentative in the normal course of business of representing the Company. The Company will assist the Representative with all\nreasonable requests for assistance from the sales, engineering, production or other departments of the Company, on the same basis as the\nCompany provides such support for all of its sales representatives.\n10. General Business Ethics.\nA. The Representative represents and warrants that it is familiar with relevant laws in the assigned Area, and that neither the receipt of\nfees under this Agreement nor the performance by the Company or the Representative of obligations and Services under this\nAgreement is in any respect a violation of applicable laws, rules, orders, prohibitions, or regulations in the assigned Area. The\nRepresentative shall comply in all respects with all applicable laws in the assigned Area dealing with bribery and corruption, as\nmay be amended from time to time.\nB. The Representative has not and will not offer, promise or provide any thing of value, directly or indirectly, to any Government\nOfficial, or any other person or entity, for the purpose of influencing any decision, action or inaction in order to secure or maintain\nan improper advantage in connection with or relating to the subject matter of this Agreement or any supplement or amendment\nhereto, or in order to direct an improper advantage to any other person or entity or otherwise act in violation of the Foreign Corrupt\nPractices Act (the “FCPA”) of the United States of America. The offer, promise or provision of any thing of value proscribed by\nthis paragraph is a “Prohibited Payment.”\nC.\n“Government Official,” as that term is used throughout this Article 10, includes any official, employee or representative of any\ngovernment (or agency, instrumentality, or company owned or controlled by any government), any political party or employee\nthereof, or any candidate for political office.\n5\nD. If the Representative receives a request for a Prohibited Payment in connection with or relating to the subject matter of this\nAgreement or any supplement or amendment hereto, then the Company must be notified immediately.\nE. The Representative agrees and certifies that it is familiar with, is in compliance with, and will continue to comply strictly with all\napplicable anti-corruption laws and regulations and will not engage in or support any occurrence of bribery or other corrupt\npractices.\nF. The Representative shall not do business with any person or third-party entity where it knows or suspects the existence of any\nillegal, unethical or questionable practices by such person or third-party entity, its officers, employees or agents.\nG. All financial transactions by Representative hereunder shall be recorded in a timely, complete and accurate manner in accordance\nwith generally accepted accounting principles consistently applied. Representative invoices and supporting documentation, as well\nas all other documents and accounting entries, shall not be false, fictitious or intentionally misleading in any way. The\nRepresentative shall sufficiently document all payments and keep appropriate receipts. The Representative shall make available to\nthe Company any invoices or records corresponding to such payments at the Company’s request upon reasonable notice.\nH. The Company shall have reasonable access to the Representative’s books and records pertaining to activities for or on behalf of the\nCompany, and the right to audit these records on demand. The Company may elect to designate a third party to conduct such an\naudit. The Company may, inspect the Representative’s premises. The Representative shall fully cooperate in any due diligence or\naudit conducted by or on behalf of the Company. Any associated cost will be for the account of The Company.\nI. Upon its discovery of a breach of any of the representations and warranties, or any other provision of this Agreement, the\nRepresentative shall immediately report such breach to the Company.\nJ. The Representative shall notify the Company if, at any time during the course of this Agreement, the Representative becomes\naware of any change of circumstances that could materially impact the Representative’s performance under this Agreement.\n6\n11. Compliance with FCPA\nA. The Representative represents and warrants that, in connection with the business to be conducted under this Agreement, no\npayment has been made, and no payment will be made, by Representative or by any of its officers, employees, agents or subsidiary\nor affiliated companies to any officer, official or employee (or to any agent or other person acting on behalf of such a person) of any\nnation, national company or political Party in violation of the Foreign Corrupt Practices Act (the "FCPA") of the United States of\nAmerica that prohibits payment or giving of anything of value, either directly or indirectly, by an American company to an official\nof a foreign government for the purpose of influencing an act or decision in his or her official capacity, or inducing that official to\nuse his or her influence with the foreign government, to assist a company in obtaining or retaining business for, or with, or directing\nbusiness to, any person. The Representative further represents and warrants that it shall not undertake any action which is in\nviolation of the anti-bribery provision of the OECD. This Agreement shall automatically terminate without notice upon Company\nlearning of any violation of this clause, and the Company shall have no further obligations to amounts owing, or otherwise, under\nthis Agreement from and after the date of said violation. Furthermore, the Representative agrees to defend, indemnity and hold the\nCompany harmless from and against any claims, actions or causes of action for damages, fines, penalties, (including interest\nthereon and attorney fees) arising out of any violation of this clause. At the request of Company or at least annually, the\nRepresentative shall provide a certification in a form substantially similar to Schedule 1, attached to and incorporated herein by\nreference.\nB. Company warrants that it will not knowingly request any service from Representative, which might constitute a violation of the\napplicable laws of The United States of America or any national or local government having jurisdiction over the Parties, and no\nofficer or employee of Company has authority to give directions to Representative, which is contrary to the laws of The United\nStates of America or any national or local government having jurisdiction over the Parties.\n12. Conformity with Local Laws\nEach Party agrees to comply with all applicable laws, orders, regulations, directions, restrictions and limitations of the governments\n(“Laws”) having jurisdiction of the Parties hereto and over the Services. Each Party agrees to defend, indemnify and hold the other\nParty harmless from and against any claims, actions or causes of actions for damages, penalties, fines or otherwise (including interest\nthereon and attorney fees) for their respective violation of the Laws.\n7\n13. Representations of Representative\nThe Representative represents and warrants to the Company that:\n(a)\nThe Representative (i) is a corporation or limited liability company duly organized, validly existing and in good standing under\nthe laws of the jurisdiction of its incorporation; (ii) has its principal place of business located at its address set forth on the\nsignature page hereof; (iii) has all requisite corporate or other power, and has all material governmental licenses,\nauthorizations, consents and approvals necessary to own its assets and carry on its business as now being or as proposed to be\nconducted; and (iv) is qualified to do business and is in good standing in all jurisdictions in which the services required to be\nperformed by it under this Agreement make such qualifications necessary.\n(b)\nThere are no legal or arbitral proceedings or any proceedings by or before any governmental or regulatory authority or agency,\nnow pending or (to the knowledge of the Representative) threatened against the Representative which, if adversely determined,\ncould (either individually or in the aggregate) have a Material Adverse Effect (as hereafter defined). For purposes hereof, the\nterm “Material Adverse Effect” means a material adverse effect on (i) the ability of the Representative to perform its services\nhereunder, (ii) the validity or enforceability of this Agreement, or (iii) the rights and remedies of the Company hereunder.\n(c)\nThe Parties have all necessary corporate and other power, authority and legal right to execute, deliver and perform their\nrespective obligations hereunder; the execution, delivery and performance by the Parties of this Agreement have been duly\nauthorized by all necessary corporate and other action on their part; and this Agreement has been duly and validly executed by\nthe Representative and Company and constitutes its legal, valid and binding obligation, enforceable against the Parties in\naccordance with its terms.\n14. Non-disclosure agreement.\nA Party receiving Confidential Information may also be referred to herein as a “Recipient,” and a Party disclosing Confidential\nInformation may also be referred to herein as a “Discloser.”\n8\nAs used in this Agreement, “Confidential Information” shall mean information, technical data or know-how disclosed by Discloser or\nany of Discloser’s employees, agents, affiliates, contractors or representatives (each a “Discloser Representative” and collectively, the\n“Discloser Representatives”) to Recipient or any of Recipient’s employees, agents, affiliates, contractors or representatives (each a\n“Recipient Representative” and collectively, the “Recipient Representatives”), including, but not limited to: customer/supplier lists and\nidentities, agreements, characteristics, formulations, specifications, sales and marketing information, sales, figures, pricing and cost\ninformation, marketing plans and business plans, forecasts, financial information, budgets, databases, computer programs, software\n(whether in object or source code), research papers, projections, practices, procedures, processes, routines, formulae, trade secrets,\nideas, innovations, inventions, technology, manufacturing know-how, machinery, drawings, photographs, equipment, devices, tools,\ndiscoveries, improvements, research or development and test results, data, formats, plans, sketches, models, any intellectual property,\npatents, trademarks, and copyrights and applications therefore, all rights and information necessary to produce and market Discloser’s\nproducts or to conduct the business of Discloser as currently conducted, or which pertains in any manner to subjects or knowledge of\nDiscloser’s business or operation, or the information, tangible or intangible, owned, developed or possessed by Discloser, whether or not\nmarked as “confidential,” and any other information or procedures that are treated as confidential by Discloser or its affiliates, suppliers\nor customers. Confidential Information shall include all such information that has been or may hereafter be provided, shown to, or\nreviewed by Recipient or any Recipient Representative, irrespective of the manner in which such information is communicated, and also\nincludes all notes, analyses, compilations, studies, summaries and other material prepared by Recipient or any Recipient Representative\ncontaining or based, in whole or in part, on any information included in any of the foregoing. Confidential Information also includes\ninformation of third parties in possession of Discloser that Discloser is obligated to maintain in confidence. Confidential Information\nsubject to this Agreement may be in intangible form, such as unrecorded knowledge, ideas or conceptions or information communicated\norally or by visual observation, or may be embodied in tangible form, such as a document. For purposes of this Agreement, the term\n“document” includes written memoranda, drawings, training materials, specifications, notebook entries, photographs, graphic\nrepresentations, firmware, computer information or software, information communicated by other electronic or magnetic media, or\nmodels.\nA. Notwithstanding the provisions of this Section 11 of the Agreement or any other provision of this Agreement, Confidential\nInformation” shall not include any of the following, even if marked or designated “Confidential”:\ni. Information that Recipient can substantiate was known by Recipient prior to disclosure by Discloser or any Discloser\nRepresentative to Recipient or any Recipient Representative under this Agreement;\nii. Information that was disclosed to Recipient or any Recipient Representative by a third party not known by Recipient to be\nunder an obligation of confidentiality with respect to such information;\niii. Information that is or becomes generally available to the public through no fault of Recipient or any Recipient\nRepresentative in breach of this Agreement;\n9\niv. Information required to be disclosed by judicial mandate or other requirement of applicable law, provided that Recipient\ncomplies with the provisions of Section 11.F. of this Agreement; or\nv. Information that is independently developed by Recipient or any Recipient Representative without use of or reference to\nany of Discloser ’s Confidential Information and without breach by Recipient or any Recipient Representative of any\nconfidentiality agreement or obligation to Discloser, as evidenced by Recipient’s written records.\nB. With respect to Confidential Information disclosed by Discloser or any Discloser Representative to Recipient or any Recipient\nRepresentative, Recipient shall, and shall cause each Recipient Representative to:\ni. receive, review, regard, preserve, hold and treat all Confidential Information as secret and confidential and to use its best\nefforts to prevent disclosure by any Recipient Representative, directly or indirectly, to any person or entity that does not\nreasonably need to know the Confidential Information for the specific purpose relating to the Services provided to the\nCompany or the Products;\nii. refrain from using any Confidential Information except for the limited purpose of furthering the Services to be provided\nrelated to the transactions for the Products;\niii. take all necessary and appropriate steps to maintain the confidentiality of any Confidential Information disclosed to\nRecipient or any Recipient Representative, including ensuring the confidentiality of any Confidential Information provided\nto the Recipient Representatives and any successors or assigns of any of them, including without limitation, entering into\nconfidentiality agreements with such persons or entities in a form substantially similar to this Agreement or other\nagreements pursuant to which such persons or entities agree to be bound by the terms and conditions of this Agreement as\nif such persons or entities were Recipient;\niv. Take all necessary and appropriate steps to prevent use of the Confidential Information in any way that would violate\nfederal or state securities or other applicable laws;\nv. Refrain from copying or duplicating, in any manner whatsoever except to the extent reasonably necessary for the\nfurtherance of the transactions involving the Products or as otherwise permitted herein, Confidential Information without\nthe express written permission of Discloser;\n10\nvi. Refrain from referring, orally or in writing, to Discloser or the Transactions in any press releases, promotional material,\npresentations to third parties (other than Discloser), in business resumes, or in any other information provided to third\nparties, without the prior written consent of Discloser;\nvii. Refrain from discussing or referring to any findings, conclusions, recommendations or the underlying data thereof with\nany third party (other than Discloser) arising out of any Confidential Information or the transactions involving the Products\nor the Services provided to the Company, without the prior written consent of Discloser;\nviii. Use the Confidential Information solely for the purpose of furthering the Transactions and not to use any of the\nConfidential Information for the benefit of any person or entity other than Discloser without the prior written consent of\nDiscloser; and\nix. With respect to any equipment, component, software or other items sold, leased, loaned or otherwise delivered by\nDiscloser or any Discloser Representative to Recipient or any Recipient Representative in connection with the Services or\nthe Products, refrain from reverse engineering, disassembling, decompiling or otherwise analyzing the physical\nconstruction of any such items.\nC. Recipient may only disclose the Confidential Information to Recipient’s Representatives having a bona fide need to know the\nConfidential Information in the course of performing their duties in connection with the Services or Products. Recipient will\nsegregate or otherwise maintain Confidential Information so as to prevent any commingling of the same with the confidential\nproprietary materials of others. In the event of any unauthorized disclosure of Confidential Information, Recipient shall notify\nDiscloser immediately. Recipient shall be fully responsible for and accountable to Discloser for any damages Discloser or any\naffiliate of Discloser suffers arising out of or related to any disclosure or use of Confidential Information in breach of this\nAgreement by Recipient or any Recipient Representative and shall, at Recipient’s sole cost and expense, take all reasonably\nnecessary measures (including, but not limited to, court proceedings) to restrain such persons or entities from unauthorized\ndisclosure or use of Confidential Information.\n11\nD. If either Party determines that it shall not proceed with the Services pursuant to this Agreement, such Party will promptly notify the\nother Party of such determination. Recipient further agrees that upon a determination by either Party not to proceed with the\nServices, upon termination of this Agreement pursuant to Section 20 of this Agreement or upon written request of Discloser,\nRecipient will promptly (a) return all Confidential Information and all records, notes, and other written, printed, computer\ngenerated or other materials in its possession pertaining to the Confidential Information and not retain copies, extracts or other\nreproductions of such materials; (b) destroy all documents, memoranda, notes and other writings (whether in electronic or hard\ncopy form) prepared by Recipient or any Recipient Representative based upon or incorporating any Confidential Information\nreceived from Discloser or any Discloser Representative, including all documents containing any abstracts or excerpts of any\nConfidential Information; and (c) certify in writing to Discloser that Recipient has complied with its obligations hereunder. The\nreturn or destruction of materials does not relieve Recipient from complying with the other terms and conditions of this Agreement.\nE. Notwithstanding any other provision of this Agreement, the Parties agree that:\ni. All rights to Confidential Information disclosed pursuant to this Agreement are reserved to and retained by Discloser, and\nDiscloser shall be and remain free to disclose or provide the Confidential Information to whomever in any manner\nDiscloser chooses;\nii. Except as expressly provide in Section 15 below, nothing in this Agreement will diminish or restrict in any way the rights\nthat each Party has to develop its products, services and business or otherwise make available its products and services to\nany customer or third party in the ordinary course of its business;\niii. No license or conveyance of any rights or ownership is granted or implied by this Agreement or the disclosure of any\nConfidential Information hereunder, and Discloser expressly reserves any and all rights that it may have in and to the\nConfidential Information;\niv. No license is hereby granted, directly or indirectly, under any know-how, including any patent, invention, discovery, idea,\ncopyright or other intellectual or industrial property right now or in the future held, made, obtained or licensable by\nDiscloser; and\nv. The timing of access and the nature and extent of the Confidential Information to be made available to Recipient will be at\nthe discretion of Discloser.\n12\nF. In the event Recipient or any Recipient Representative is served with an administrative or court subpoena or order requiring any\nConfidential Information to be disclosed, Recipient shall immediately thereafter notify Discloser orally and in writing of the fact of\nsuch service, the information requested and the time to respond thereto, and in all events, shall use its best efforts to provide\nDiscloser with such notice sufficiently in advance of the deadline to respond to allow Discloser sufficient time to challenge such\nsubpoena or order if Discloser elects to do so. Recipient shall cooperate fully with Discloser, at Discloser’s expense, in challenging\nany subpoena or order requiring the disclosure of Confidential Information. Should Discloser decide not to challenge any such\nsubpoena or order, then Recipient or the Recipient Representative, as applicable, may disclose such information as, in the\nreasonable judgment of Recipient’s counsel, is required to be disclosed under such subpoena or order. Discloser shall advise\nRecipient within five (5) business days of receipt of notice thereof whether Discloser intends to challenge the subpoena or order.\nG. Recipient hereby acknowledges and agrees that neither Discloser nor any Discloser Representative makes any representations or\nwarranties whatsoever, express or implied, as to the accuracy, completeness or correctness of any Confidential Information supplied\nhereunder, nor shall any such representations or warranties be implied. Neither Discloser nor Discloser’s officers, directors or\nshareholders nor any of the Discloser Representatives shall have any liability whatsoever to Recipient or any Recipient\nRepresentative arising out of or resulting from the use of or reliance on any Confidential Information. Discloser retains the right to\ndetermine, in its sole discretion, what information, properties and personnel it wishes to make available to Recipient hereunder.\n15. The Parties acknowledge that in order to facilitate the Services, it may be necessary for Representative to introduce the Customers to the\nCompany for direct discussions regarding the sales of products. The Company hereby expressly agrees not to, directly or indirectly\nthrough one or more of the Company’s affiliates or intermediaries, take any action for sole purpose of depriving the Representative of\nany commission that would otherwise be payable with respect to such sales.\n16. Nothing in this Agreement shall be construed as constituting any offer by, or as creating any obligation on the part of, either Party to\nenter into any transaction with the other or with any other person or entity.\n17. The Parties agree that, because an award of money damages may be inadequate for any breach of Section 11 of this Agreement, and any\nsuch breach may cause the non-breaching Party irreparable harm, in the event of a breach or threatened breach of the terms of this\nAgreement by a Party, the non-breaching Party shall be entitled, without requirement of posting a bond or other security, to an\ninjunction or decree of specific performance prohibiting any such breach or disclosure or misuse of any Confidential Information. In\naddition to injunctive relief, the non-breaching Party shall have all other rights and remedies afforded it by law.\n13\n18. This Agreement shall be construed, governed by, enforced and interpreted, and the relationship between the Parties determined in\naccordance with, the laws of the State of Texas without giving effect to any choice or conflict of laws rules, provisions or principles\n(whether of the State of Texas or any other jurisdiction) the application of which would result in the application of the laws of any\njurisdiction other than the State of Texas.\n19. The Parties will attempt in good faith to resolve any dispute arising out of or relating to this Agreement or the construction\ninterpretation, performance, breach, termination, enforceability or validity hereof (each a “Dispute”) through discussions between their\nrespective representatives. Any Dispute that cannot be resolved through discussions between the Parties’ respective representatives\narising out of or relating to this Agreement, including the annexes and schedules hereto, will be fully and finally settled by arbitration in\naccordance with the provisions set forth in Section 13 of the Representative’s Employment Agreement with the Company, dated as of\nOctober 19, 2012. Notwithstanding this provision, nothing contained herein shall in any way be deemed to prohibit the Company or the\nRepresentative from seeking temporary equitable relief from a court of competent jurisdiction in the event of a breach or threatened\nbreach by the other party of this Agreement.\n20. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be (i) sent by an overnight\ncourier service that provides proof of receipt, (ii) mailed by registered or certified mail (postage prepaid, return receipt requested) or (iii)\ntelecopied to the Parties at the following addresses (or at such other address for a Party as shall be specified by like notice):\nIf to Company:\nIntegrated Drilling Equipment Holdings Corp.\n25311 I-45 North, Building 6\nSpring, Texas, USA 77380\nAttn: N. Michael Dion\nTel: 281-465-9393\nE-mail: mdion@ide-rig.com\nIf to Representative:\nOffshore and Marine Holdings LLC\nStephen D. Cope\n7303 Augusta Drive\nSpring, TX 77389\nTel: (713) 253-0130\nIf this Agreement provides for a designated period after a notice within which to perform an act, such period shall commence on the\ndate of receipt or refusal of the notice. If this Agreement requires the exercise of a right by notice on or before a certain date or within a\ndesignated period, such right shall be deemed exercised on the date of delivery to the courier service, tele-copying or mailing of the\nnotice pursuant to which such right is exercised.\n14\n21. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior\nrepresentations, agreements and understandings, whether oral or written, between the Parties with respect to the subject matter hereof.\nNo representations or warranties have been made relating to the subject matter hereof other than those expressly set forth in this\nAgreement. This Agreement may not be amended, modified or supplemented except by means of a written instrument designated as\nsuch and executed by an authorized officer of each of the Parties.\n22. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable by a court, tribunal or other forum of competent\njurisdiction for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement\n(including, without limitation, each portion of any subdivision of this Agreement containing any such provision held to be invalid,\nillegal or unenforceable) shall not in any way be affected or impaired thereby; (b) such provision will be deemed reformed to the extent\nnecessary to conform to applicable Law and to give maximum effect to the intent of the Parties, or, if that is not possible, such provision\nshall be deemed severed from this Agreement; and (c) to the fullest extent possible, the provisions of this Agreement (including, without\nlimitation, each portion of any subdivision of this Agreement containing any such provision held to be invalid, illegal or unenforceable,\nthat is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held\ninvalid, illegal or unenforceable.\n23. Either Party hereto may terminate this Agreement by thirty (30) days written notice to the other Party at its address specified herein, but\nno such termination shall affect obligations already in effect.\n24. This Agreement is personal to each of the Parties and may not be assigned or otherwise transferred, in whole or in part, by either Party\nwithout the prior written consent of the other Party.\n25. No failure or delay by a Party in exercising its rights, powers or privileges under this Agreement shall constitute a waiver thereof, nor\nshall any single or partial exercise of such rights, powers or privileges preclude any further exercise thereof. No waiver of any provision\nshall be binding upon a Party unless it is in writing and signed by an authorized officer of such Party.\n15\n26. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original copy of this Agreement, but\nall of which, when taken together, shall be deemed to constitute one and the same agreement. The Parties may sign and deliver this\nAgreement by facsimile transmission or by electronic mail in “portable document format.” Each Party agrees that the delivery of this\nAgreement by facsimile or by electronic mail in “portable document format” shall have the same force and effect as delivery of original\nsignatures, and that each Party may use such facsimile or electronic mail signatures as evidence of the execution and delivery of this\nAgreement by all Parties to the same extent that an original signature could be used.\n[SIGNATURES ON FOLLOWING PAGE]\n16\nIN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.\nIntegrated Drilling Equipment Holdings Corp.\nBy (Print Name): N. Michael Dion\nSignature: /s/ Michael Dion\nTitle: CFO\nDate: April 7, 2014\nOffshore and Marine Holdings LLC\nBy (Print Name): Steve Cope\nSignature: /s/ Steve Cope\nTitle: President/CEO\nDate: April 7, 2014\nSignature Page to Sales Representation, Non-Circumvention and Non-Disclosure Agreement\nAPPENDIX A\nREPRESENTATION AREA.\nThe Representation Area is the United States of America and Mexico. Additional areas and projects may be determined on a case by case basis in\nthe Company’s discretion.\nAPPENDIX B\nSPECIFIC PROJECT AND COMMISSION BASIS\n(Specific Projects, details and commission basis are to be determined on a case by case basis. The initial commission to be included will\nbe 1% of the net selling price of any order or project)\nAPPENDIX C\nRESTRICTED CUSTOMERS.\n·\nLas Isla*\n·\nBig Dog Drilling*\n·\nIHSA\n·\nSavannah Drilling\n·\nLewis\n·\nSidewinder\n·\nSavanna\n·\nNoram\n·\nEurasia Drilling\n·\nIHSA\n·\nTacker\n·\nPEMSA*\n·\nGPA\n·\nLatina*\n·\nGSM*\n·\nGoimar*\n·\nCentral*\n·\nEnsign\n·\nFelderhoff\n·\nArcher*\n·\nLukoil\n·\nSevmash\n·\nGazprom\n·\nRosneft\n·\nSidewinder\n·\nEnsign\n·\nRUS Industrial\n·\nCRC Evans\n·\nBaker Hughes\n·\nOklahoma Rig Co.\n·\nShale Pumps\n·\nServas Energy\n·\nAztec Drilling\n·\nIndependence Drilling\n·\nSidewinder\n·\nPatterson UTI\n·\nNabors\n·\nEnsign\n·\nScana\n·\nEnergy Water Solutions\n·\nNDIL\n*Projects undertaken by entities identified with an asterisk shall not be subject to the restrictions placed on Restricted Customers for any such\nprojects or PEMEX licitations that are received, initiated or quoted after the date of the Company’s March 24, 2014 pipeline report. For the\navoidance of doubt, any projects that have not been quoted prior to the March 24, 2014 pipeline report and are received, initiated or quoted after\nthe March 24, 2014 pipeline report shall not be subject to the restrictions placed on Restricted Customers in Section 4(f) of this Agreement.\nSCHEDULE 1\nANNUAL CERTIFICATION OF COMPLIANCE\nFOR INTERNATIONAL\nCONSULTANTS, AGENTS AND REPRESENTATIVES\nI [•] a duly authorized representative of [•] (the “Representative”) do hereby certify for and on behalf of such company, that neither I, nor to\nmy knowledge any other person, including but not limited to every officer, director, stockholder, employee, representative and agent of\nRepresentative or its affiliates has made any offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift,\npromise to give, or authorization of the giving of anything of value to any Public Official (defined below) to obtain, retain, or direct business\nor to secure any improper advantage for myself, the Representative, Representative’s affiliates, or any affiliate in violation of any Anti-\nCorruption Laws (defined below).\n"Public Official" means any officer or employee of a government (or any department, agency, or instrumentality thereof, including, but not\nlimited to, national oil companies), a political party, or a public international organization (such as the World Bank), or any person acting in\nan official capacity for or on behalf of any such government, department, agency, or instrumentality, or for or on behalf of any public\ninternational organization, or any political party or official thereof or candidate for political office. “Anti-Corruption Laws” means the\nUnited States Foreign Corrupt Practices Act (“FCPA”) and the anti-corruption and bribery laws of the representation Area, the jurisdiction(s)\nwhere Representative and its applicable affiliates are organized, and the country (ies) where the representation Services will be performed.\nI hereby confirm and agree that should I learn of any of the prohibited activities described above, or if there are any changes in the\nownership or control of the Representative or its affiliates, I will immediately advise:\nIntegrated Drilling Equipment Holdings Corp.\n25311 I-45 North\nBuilding 6\nSpring, Texas 77380\nAttn: N. Michael Dion\nTel: 281-465-9393\nE-mail: mdion@ide-rig.com\n(Signatures on Next Page)\nI hereby confirm that neither I nor anyone else at [•] or any affiliate that is providing Services is a Public Official.\nI certify under penalty of perjury that the foregoing is true and correct.\nDate:\nBy:\nName:\nTitle:
+d50b5f4cf1b059aed9adb4d3d8953d84.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 9 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nPARALLEL PETROLEUM CORPORATION\n1004 N. Big Spring, Suite 400\nMidland, Texas 79701\nTelephone (432) 684-3727\nFax (432) 685-6572\nJune 30, 2009\nSTRICTLY CONFIDENTIAL\nApollo Management VII, L.P.\n9 West 57 Street, 43 Floor\nNew York, New York 10019\nAttention: Sam Oh\nLadies and Gentlemen:\nIn connection with the consideration of a possible transaction (the “Transaction”) between Parallel Petroleum Corporation, a Delaware\ncorporation (the “Company”), and Apollo Management VII, L.P. (“Buyer”), the Company and Buyer acknowledge that the Company may make\navailable to Buyer from time to time certain information concerning the Company’s business, financial condition, operations, assets and liabilities,\nwhether prepared by the Company, its advisors or otherwise. As a condition to entering into any discussions relating to the Transaction, Buyer agrees\nto comply with its obligations hereunder and to take or abstain from taking certain other actions as hereinafter set forth.\n1. Evaluation Material; Non-Disclosure Obligation and Use Restriction. The term “Evaluation Material” shall mean all information, data\nand analysis furnished by the Company or its Representatives to Buyer or its Representatives relating to the Company or the Transaction, and any\nanalyses, compilations, studies, documents or other material prepared by Buyer or its Representatives containing or based in whole or in part upon\nsuch information, data or analysis, but does not include information, data or analysis that (i) is already in the possession of Buyer or its\nRepresentatives or becomes subsequently available to Buyer or its Representatives on a non-confidential basis from a source not known or\nreasonably suspected by Buyer or its Representatives to be bound by a confidentiality agreement or secrecy obligation to the Company, (ii) is or\nbecomes generally available to or known by the public other than as a result of a breach of this letter agreement by Buyer or its Representatives or\n(iii) has already been or is hereafter independently acquired or developed by Buyer or any of its Representatives without violating any confidentiality\nagreement or secrecy obligation to the Company. “Representatives” shall mean such party’s affiliates and its and their respective, directors, officers,\nemployees, agents, lenders, potential financing sources and advisers (including, without limitation, attorneys, accountants, consultants, bankers and\nfinancial advisors) and representatives of the foregoing. Buyer recognizes and acknowledges the potential competitive value of the Evaluation\nMaterial and the damage that could result from the disclosure thereof to third parties. Accordingly, Buyer agrees that the Evaluation Material will be\nused solely for the purpose of evaluating the Transaction and related actions, and that such information will be kept confidential by Buyer and its\nRepresentatives; provided, however, that (w) such information may be disclosed by Buyer to its Representatives who need to know such information\nfor the purpose of evaluating the Transaction or their participation therein (it being understood that such Representatives shall be informed of the\nconfidential nature of the information), (x) it shall not constitute a breach of this letter agreement if any disclosure of such information is made with\nthe Company’s prior written consent, (y) it shall not constitute a breach of this letter agreement for Buyer or its Representatives to disclose such\ninformation to the extent that Buyer believes, based on the advice of counsel, that it is legally required to disclose such information in order to avoid\ncommitting a violation of any law, rule or regulation, including any rules or regulations of any securities association, stock exchange or national\nsecurities quotation system, provided that, to the extent permitted by law or regulation, Buyer provides notice to the Company as promptly as\npracticable of the proposed disclosure and takes the other actions required in connection with a required disclosure pursuant to Section 3 below and\n(z) it shall not constitute a breach of this letter agreement for Buyer or its Representatives to disclose such information to the\nth\nrd\nextent that such disclosure is permitted pursuant to Section 3 below. Buyer agrees to be responsible for any breach of the terms of this letter\nagreement that are applicable to Representatives by any of its Representatives.\n2. Non-Disclosure of Discussions. Each party agrees that, without the prior written consent of the other party, such party and its\nRepresentatives will not disclose to any other person (other than such party’s Representatives on a need to know basis) the fact that any Evaluation\nMaterial has been made available hereunder, that discussions or negotiations are taking place concerning a possible Transaction or any of the terms,\nconditions or other facts with respect to the possible Transaction (including the status thereof); provided, that a party may make such disclosure if\n(i) based on the advice of such party’s counsel, such disclosure is necessary to avoid committing a violation of, or to insure compliance with, any\nlaws, rules or regulations, including any rules or regulations of any securities association, stock exchange or national securities quotation system,\n(ii) to the extent permitted by law or regulation, the disclosing party provides notice to the other party of the proposed disclosure and cooperates in\ngood faith with respect to the timing, manner and content of such disclosure (to the extent consistent with its obligation to make disclosure) or\n(iii) the aforementioned facts are or become generally available to or known by the public other than as a result of a breach of this letter agreement\nby such party.\n3. Required Disclosure. In the event that Buyer or its Representatives are requested or required (by oral questions, interrogatories, requests for\ninformation or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation\nMaterial or any other facts or information, the disclosure of which is prohibited by this letter agreement, Buyer shall, to the extent permitted by law\nor regulation, (i) provide the Company with notice as promptly as practicable of any such request or requirement so that the Company may seek a\nprotective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement and (ii) consult with the Company\nas to the advisability of taking legally available steps to resist or narrow such request. If, in the absence of a protective order or other remedy, or the\nreceipt of a waiver by the Company, Buyer or any of its Representatives should nonetheless, based on the advice of such party’s counsel, disclose the\nEvaluation Material and/or the facts or information covered by Section 2, Buyer or its Representative may, without liability hereunder, disclose only\nthat portion of the Evaluation Material and/or such facts or information that such counsel advises is legally required to be disclosed; provided that, to\nthe extent permitted by law or regulation, Buyer gives the Company written notice of the Evaluation Material and/or such facts or other information\nto be disclosed as promptly as practicable and exercises its commercially reasonable efforts to preserve the confidentiality of the Evaluation Material\nand/or such facts or other information, including, without limitation, by cooperating with the Company to obtain an appropriate protective order or\nother reliable assurance that confidential treatment will be accorded to the Evaluation Material and/or such facts or information.\n4. Termination of Discussions. If either party decides that it does not wish to proceed with discussions or negotiations relating to a Transaction\nwith the other party, the party so deciding shall promptly inform the other party of that decision. At such time, or at any time for any reason, upon the\nwritten request of the Company, Buyer will as promptly as practicable destroy all written Evaluation Material provided by the Company. In the event\nof such request, all other Evaluation Material prepared by Buyer shall be destroyed, and in no event shall Buyer be obligated to disclose or provide\nthe Evaluation Material prepared by it or its Representatives to the Company. Notwithstanding the foregoing, (i) Buyer and its Representatives may\nkeep archival copies of any Evaluation Materials for legal and compliance purposes or to comply with any bona fide records retention policy and\n(ii) each party and its Representatives will continue to be bound by their obligations of confidentiality hereunder for a period of one (1) year from the\ndate hereof.\n5. Standstill Agreement. For a period of one (1) year from the date hereof, Buyer agrees that it shall not, without the prior written consent of\nthe Company, directly or indirectly, alone or in concert with others, (a) acquire, offer to acquire, or agree to acquire, by purchase, or otherwise,\nownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 of the Securities Exchange Act of 1934) of (i) more than 5%\nof any class of voting equity securities issued by the Company, or (ii) any debt instruments issued by the Company,\n2\nincluding, without limitation, the Company’s 10 /4% Senior Notes Due 2014, or promissory notes made and issued by the Company to its\ncommercial bank lenders, (b) propose to enter into any merger or business combination involving the Company or any of its subsidiaries, (c) make,\nor in any way participate in, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the United States Securities and Exchange\nCommission) with respect to the securities of the Company, or advise or seek to influence any person or entity with respect to the voting of, or giving\nof consents with respect to, any securities of the Company or any of its subsidiaries, (d) seek or propose to influence or control (whether through a\n“group,” as such term is used in Rule 13d-5 of the Securities Exchange Act of 1934 or otherwise) the management, board of directors, policies or\naffairs of the Company or any of its subsidiaries, (e) disclose any intention, plan or arrangement inconsistent with any of the foregoing or\n(f) encourage any third party to do any of the foregoing. As used in this Section 5, the term “securities” shall mean any securities of the Company\nand any direct or indirect warrants, rights or options to acquire securities of the Company.\n6. Procedure for Communications. It is understood that the parties will arrange for appropriate contacts for due diligence purposes. Unless\notherwise agreed, all (i) communications regarding a possible Transaction, (ii) requests for information and (iii) discussions or questions regarding\nprocedures, will be submitted or directed to the Company.\n7. Non-solicitation of Employees. Buyer agrees that for the term of one (1) year from the date hereof that it will not offer employment or\nemploy any employee of the Company or its affiliates with whom Buyer has had contact or who became known to Buyer in connection with its\nconsideration of the Transaction, other than any person who (i) has been terminated by the Company or any of its affiliates prior to commencement\nof employment discussions between Buyer and such person, or (ii) responds to a general or public solicitation of employment not targeted at such\nperson (including solicitations in a trade magazine or newspaper of general circulation or by a bona fide search firm).\n8. Miscellaneous.\n(a) Unless and until a definitive agreement between the parties with respect to any Transaction has been executed and delivered, neither the\nCompany nor Buyer will be under any legal obligation of any kind whatsoever with respect to a Transaction by virtue of this letter\nagreement or any written or oral expression with respect to such a Transaction by any of its Representatives except for the matters\nspecifically agreed to in this letter agreement. Each party further agrees that neither party shall have any obligation to authorize or pursue\nwith the other party any Transaction. Each party acknowledges and agrees that each reserves the right, in its sole and absolute discretion,\nto reject any and all proposals and to terminate discussions and negotiations with the other at any time.\n(b) It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder. The agreements set forth in this letter agreement may be modified or waived only by a separate writing\nbetween the parties hereto.\n(c) Notwithstanding anything herein to the contrary, all of the obligations of the parties hereunder shall (if not sooner terminated) terminate\non the first anniversary of the date hereof; provided, however, that no such termination shall relieve a party from liability for any breach\nby such party of the terms hereof that exists on the date of such termination.\n(d) Buyer understands and agrees that neither the Company nor any of its Representatives has made or makes any representation or\nwarranty, express or implied, as to the accuracy or completeness of the Evaluation Material or shall have any liability to Buyer or any of\nits Representatives resulting from the use of the Evaluation Material or any errors in or omissions therefrom, except in each case to the\nextent expressly provided in any definitive agreement.\n(e) Each party hereby represents that it has the power and authority to execute and deliver this letter agreement, and that it has been duly\nauthorized and constitutes a valid and binding agreement of such\n3\n1\nparty, enforceable in accordance with its terms. This letter agreement shall be binding upon the respective successors in interest of the\nparties hereto and shall inure to the benefit of, and be enforceable by, the respective successors in interest of the parties hereto.\n(f) This agreement contains the entire agreement and understanding between the parties as to the subject matter hereof and supersedes any\nprior agreements, commitments, representations, writings and discussions, whether oral or written, relating to that subject matter. If any\nprovision of this letter agreement is held by a court of competent jurisdiction in a final, non-appealable judgment to be invalid, illegal or\nunenforceable, the remainder of the provisions of this letter shall remain in full force and effect and any invalid, illegal or unenforceable\nprovision shall be replaced with a valid, legal or enforceable provision, the effect of which comes as close as possible to that of the\ninvalid, illegal or unenforceable provision.\n(g) The validity and interpretation of this letter agreement shall be governed by, and construed and enforced in accordance with, the laws of\nthe State of Texas without regard to conflicts-of-law rules or principles.\n(h) This letter agreement may be executed in one or more counterparts. Each such counterpart shall be deemed to be an original instrument,\nbut all such counterparts taken together shall constitute one and the same agreement.\n(i) Buyer agrees that money damages may not be a sufficient remedy for any breach of this letter agreement by Buyer or any of its\nRepresentatives and that the Company shall be entitled to seek equitable relief, including injunction and specific performance, as well as\nreimbursement for legal and other expenses as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive\nremedies for a breach of this letter agreement, but shall be in addition to all other remedies available at law or equity. In the event of\nlitigation concerning this letter agreement, if a court of competent jurisdiction determines in a final non-appealable order that a party has\nbreached this letter agreement, then such party shall be liable for and pay the other party’s reasonable legal fees and expenses incurred in\nconnection with such litigation, including any appeal therefrom or review thereof.\n(j) The Company agrees that, without prejudice to any claim it may have against Buyer or any of Buyer’s affiliates, no proceedings in\nrespect of any claim the Company may have against Buyer or its affiliates may be taken against Buyer’s or its affiliates’ directors,\nofficers or employees or Buyer’s or its affiliates’ controlling persons, partners, members or agents to the extent such controlling persons,\npartners, members or agents are individuals.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned.\nSincerely,\nPARALLEL PETROLEUM CORPORATION\nBy:\n/s/ LARRY C. OLDHAM\nLarry C. Oldham,\nPresident and Chief Executive Officer\nACCEPTED AND AGREED as of\nJune 30, 2009\nAPOLLO MANAGEMENT VII, L.P.\nBy: AIF VII Management, LLC\nits General Partner\nBy:\n/s/ WENDY K. MODLIN\nName:\nTitle:\nWendy K. Modlin\nVice President\n4	EX-99.(D)(2) 9 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nPARALLEL PETROLEUM CORPORATION\n1004 N. Big Spring, Suite 400\nMidland, Texas 79701\nTelephone (432) 684-3727\nFax (432) 685-6572\nJune 30, 2009\nSTRICTLY CONFIDENTIAL\nApollo Management VII, L.P.\n9 West 57th Street, 43rd Floor\nNew York, New York 10019\nAttention: Sam Oh\nLadies and Gentlemen:\nIn connection with the consideration of a possible transaction (the “Transaction”) between Parallel Petroleum Corporation, a Delaware\ncorporation (the “Company”), and Apollo Management VII, L.P. (“Buyer”), the Company and Buyer acknowledge that the Company may make\navailable to Buyer from time to time certain information concerning the Company’s business, financial condition, operations, assets and liabilities,\nwhether prepared by the Company, its advisors or otherwise. As a condition to entering into any discussions relating to the Transaction, Buyer agrees\nto comply with its obligations hereunder and to take or abstain from taking certain other actions as hereinafter set forth.\n1. Evaluation Material; Non-Disclosure Obligation and Use Restriction. The term “Evaluation Material” shall mean all information, data\nand analysis furnished by the Company or its Representatives to Buyer or its Representatives relating to the Company or the Transaction, and any\nanalyses, compilations, studies, documents or other material prepared by Buyer or its Representatives containing or based in whole or in part upon\nsuch information, data or analysis, but does not include information, data or analysis that (i) is already in the possession of Buyer or its\nRepresentatives or becomes subsequently available to Buyer or its Representatives on a non-confidential basis from a source not known or\nreasonably suspected by Buyer or its Representatives to be bound by a confidentiality agreement or secrecy obligation to the Company, (ii) is or\nbecomes generally available to or known by the public other than as a result of a breach of this letter agreement by Buyer or its Representatives or\n(iii) has already been or is hereafter independently acquired or developed by Buyer or any of its Representatives without violating any confidentiality\nagreement or secrecy obligation to the Company. “Representatives” shall mean such party’s affiliates and its and their respective, directors, officers,\nemployees, agents, lenders, potential financing sources and advisers (including, without limitation, attorneys, accountants, consultants, bankers and\nfinancial advisors) and representatives of the foregoing. Buyer recognizes and acknowledges the potential competitive value of the Evaluation\nMaterial and the damage that could result from the disclosure thereof to third parties. Accordingly, Buyer agrees that the Evaluation Material will be\nused solely for the purpose of evaluating the Transaction and related actions, and that such information will be kept confidential by Buyer and its\nRepresentatives; provided, however, that (w) such information may be disclosed by Buyer to its Representatives who need to know such information\nfor the purpose of evaluating the Transaction or their participation therein (it being understood that such Representatives shall be informed of the\nconfidential nature of the information), (x) it shall not constitute a breach of this letter agreement if any disclosure of such information is made with\nthe Company’s prior written consent, (y) it shall not constitute a breach of this letter agreement for Buyer or its Representatives to disclose such\ninformation to the extent that Buyer believes, based on the advice of counsel, that it is legally required to disclose such information in order to avoid\ncommitting a violation of any law, rule or regulation, including any rules or regulations of any securities association, stock exchange or national\nsecurities quotation system, provided that, to the extent permitted by law or regulation, Buyer provides notice to the Company as promptly as\npracticable of the proposed disclosure and takes the other actions required in connection with a required disclosure pursuant to Section 3 below and\n(z) it shall not constitute a breach of this letter agreement for Buyer or its Representatives to disclose such information to the\nextent that such disclosure is permitted pursuant to Section 3 below. Buyer agrees to be responsible for any breach of the terms of this letter\nagreement that are applicable to Representatives by any of its Representatives.\n2. Non-Disclosure of Discussions. Each party agrees that, without the prior written consent of the other party, such party and its\nRepresentatives will not disclose to any other person (other than such party’s Representatives on a need to know basis) the fact that any Evaluation\nMaterial has been made available hereunder, that discussions or negotiations are taking place concerning a possible Transaction or any of the terms,\nconditions or other facts with respect to the possible Transaction (including the status thereof); provided, that a party may make such disclosure if\n(i) based on the advice of such party’s counsel, such disclosure is necessary to avoid committing a violation of, or to insure compliance with, any\nlaws, rules or regulations, including any rules or regulations of any securities association, stock exchange or national securities quotation system,\n(ii) to the extent permitted by law or regulation, the disclosing party provides notice to the other party of the proposed disclosure and cooperates in\ngood faith with respect to the timing, manner and content of such disclosure (to the extent consistent with its obligation to make disclosure) or\n(iii) the aforementioned facts are or become generally available to or known by the public other than as a result of a breach of this letter agreement\nby such party.\n3. Required Disclosure. In the event that Buyer or its Representatives are requested or required (by oral questions, interrogatories, requests for\ninformation or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation\nMaterial or any other facts or information, the disclosure of which is prohibited by this letter agreement, Buyer shall, to the extent permitted by law\nor regulation, (i) provide the Company with notice as promptly as practicable of any such request or requirement so that the Company may seek a\nprotective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement and (ii) consult with the Company\nas to the advisability of taking legally available steps to resist or narrow such request. If, in the absence of a protective order or other remedy, or the\nreceipt of a waiver by the Company, Buyer or any of its Representatives should nonetheless, based on the advice of such party’s counsel, disclose the\nEvaluation Material and/or the facts or information covered by Section 2, Buyer or its Representative may, without liability hereunder, disclose only\nthat portion of the Evaluation Material and/or such facts or information that such counsel advises is legally required to be disclosed; provided that, to\nthe extent permitted by law or regulation, Buyer gives the Company written notice of the Evaluation Material and/or such facts or other information\nto be disclosed as promptly as practicable and exercises its commercially reasonable efforts to preserve the confidentiality of the Evaluation Material\nand/or such facts or other information, including, without limitation, by cooperating with the Company to obtain an appropriate protective order or\nother reliable assurance that confidential treatment will be accorded to the Evaluation Material and/or such facts or information.\n4. Termination of Discussions. If either party decides that it does not wish to proceed with discussions or negotiations relating to a Transaction\nwith the other party, the party so deciding shall promptly inform the other party of that decision. At such time, or at any time for any reason, upon the\nwritten request of the Company, Buyer will as promptly as practicable destroy all written Evaluation Material provided by the Company. In the event\nof such request, all other Evaluation Material prepared by Buyer shall be destroyed, and in no event shall Buyer be obligated to disclose or provide\nthe Evaluation Material prepared by it or its Representatives to the Company. Notwithstanding the foregoing, (i) Buyer and its Representatives may\nkeep archival copies of any Evaluation Materials for legal and compliance purposes or to comply with any bona fide records retention policy and\n(ii) each party and its Representatives will continue to be bound by their obligations of confidentiality hereunder for a period of one (1) year from the\ndate hereof.\n5. Standstill Agreement. For a period of one (1) year from the date hereof, Buyer agrees that it shall not, without the prior written consent of\nthe Company, directly or indirectly, alone or in concert with others, (a) acquire, offer to acquire, or agree to acquire, by purchase, or otherwise,\nownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 of the Securities Exchange Act of 1934) of (i) more than 5%\nof any class of voting equity securities issued by the Company, or (ii) any debt instruments issued by the Company,\n2\nincluding, without limitation, the Company’s 10 /4% Senior Notes Due 2014, or promissory notes made and issued by the Company to its\ncommercial bank lenders, (b) propose to enter into any merger or business combination involving the Company or any of its subsidiaries, (c) make,\nor in any way participate in, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the United States Securities and Exchange\nCommission) with respect to the securities of the Company, or advise or seek to influence any person or entity with respect to the voting of, or giving\nof consents with respect to, any securities of the Company or any of its subsidiaries, (d) seek or propose to influence or control (whether through a\n“group,” as such term is used in Rule 13d-5 of the Securities Exchange Act of 1934 or otherwise) the management, board of directors, policies or\naffairs of the Company or any of its subsidiaries, (e) disclose any intention, plan or arrangement inconsistent with any of the foregoing or\n(f) encourage any third party to do any of the foregoing. As used in this Section 5, the term “securities” shall mean any securities of the Company\nand any direct or indirect warrants, rights or options to acquire securities of the Company.\n6. Procedure for Communications. It is understood that the parties will arrange for appropriate contacts for due diligence purposes. Unless\notherwise agreed, all (i) communications regarding a possible Transaction, (ii) requests for information and (iii) discussions or questions regarding\nprocedures, will be submitted or directed to the Company.\n7. Non-solicitation of Employees. Buyer agrees that for the term of one (1) year from the date hereof that it will not offer employment or\nemploy any employee of the Company or its affiliates with whom Buyer has had contact or who became known to Buyer in connection with its\nconsideration of the Transaction, other than any person who (i) has been terminated by the Company or any of its affiliates prior to commencement\nof employment discussions between Buyer and such person, or (ii) responds to a general or public solicitation of employment not targeted at such\nperson (including solicitations in a trade magazine or newspaper of general circulation or by a bona fide search firm).\n8. Miscellaneous.\n(a) Unless and until a definitive agreement between the parties with respect to any Transaction has been executed and delivered, neither the\nCompany nor Buyer will be under any legal obligation of any kind whatsoever with respect to a Transaction by virtue of this letter\nagreement or any written or oral expression with respect to such a Transaction by any of its Representatives except for the matters\nspecifically agreed to in this letter agreement. Each party further agrees that neither party shall have any obligation to authorize or pursue\nwith the other party any Transaction. Each party acknowledges and agrees that each reserves the right, in its sole and absolute discretion,\nto reject any and all proposals and to terminate discussions and negotiations with the other at any time.\n(b) TItis understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder. The agreements set forth in this letter agreement may be modified or waived only by a separate writing\nbetween the parties hereto.\n(c) Notwithstanding anything herein to the contrary, all of the obligations of the parties hereunder shall (if not sooner terminated) terminate\non the first anniversary of the date hereof; provided, however, that no such termination shall relieve a party from liability for any breach\nby such party of the terms hereof that exists on the date of such termination.\n(d) Buyer understands and agrees that neither the Company nor any of its Representatives has made or makes any representation or\nwarranty, express or implied, as to the accuracy or completeness of the Evaluation Material or shall have any liability to Buyer or any of\nits Representatives resulting from the use of the Evaluation Material or any errors in or omissions therefrom, except in each case to the\nextent expressly provided in any definitive agreement.\n(e) Each party hereby represents that it has the power and authority to execute and deliver this letter agreement, and that it has been duly\nauthorized and constitutes a valid and binding agreement of such\n3\n®\n(8\n(h)\n()\n0\nparty, enforceable in accordance with its terms. This letter agreement shall be binding upon the respective successors in interest of the\nparties hereto and shall inure to the benefit of, and be enforceable by, the respective successors in interest of the parties hereto.\nThis agreement contains the entire agreement and understanding between the parties as to the subject matter hereof and supersedes any\nprior agreements, commitments, representations, writings and discussions, whether oral or written, relating to that subject matter. If any\nprovision of this letter agreement is held by a court of competent jurisdiction in a final, non-appealable judgment to be invalid, illegal or\nunenforceable, the remainder of the provisions of this letter shall remain in full force and effect and any invalid, illegal or unenforceable\nprovision shall be replaced with a valid, legal or enforceable provision, the effect of which comes as close as possible to that of the\ninvalid, illegal or unenforceable provision.\nThe validity and interpretation of this letter agreement shall be governed by, and construed and enforced in accordance with, the laws of\nthe State of Texas without regard to conflicts-of-law rules or principles.\nThis letter agreement may be executed in one or more counterparts. Each such counterpart shall be deemed to be an original instrument,\nbut all such counterparts taken together shall constitute one and the same agreement.\nBuyer agrees that money damages may not be a sufficient remedy for any breach of this letter agreement by Buyer or any of its\nRepresentatives and that the Company shall be entitled to seek equitable relief, including injunction and specific performance, as well as\nreimbursement for legal and other expenses as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive\nremedies for a breach of this letter agreement, but shall be in addition to all other remedies available at law or equity. In the event of\nlitigation concerning this letter agreement, if a court of competent jurisdiction determines in a final non-appealable order that a party has\nbreached this letter agreement, then such party shall be liable for and pay the other party’s reasonable legal fees and expenses incurred in\nconnection with such litigation, including any appeal therefrom or review thereof.\nThe Company agrees that, without prejudice to any claim it may have against Buyer or any of Buyer’s affiliates, no proceedings in\nrespect of any claim the Company may have against Buyer or its affiliates may be taken against Buyer’s or its affiliates” directors,\nofficers or employees or Buyer’s or its affiliates’ controlling persons, partners, members or agents to the extent such controlling persons,\npartners, members or agents are individuals.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned. Sincerely,\nPARALLEL PETROLEUM CORPORATION\nBy: /s/  LARRY C. OLDHAM\nLarry C. Oldham,\nPresident and Chief Executive Officer\nACCEPTED AND AGREED as of June 30, 2009 APOLLO MANAGEMENT VI, L.P. By:\nBy:\nName:\nTitle:\nATF VII Management, LLC its General Partner /s/  WENDY K. MODLIN Wendy K. Modlin\nVice President	EX-99.(D)(2) 9 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nPARALLEL PETROLEUM CORPORATION\n1004 N. Big Spring, Suite 400\nMidland, Texas 79701\nTelephone (432) 684-3727\nFax (432) 685-6572\nJune 30, 2009\nSTRICTLY CONFIDENTIAL\nApollo Management VII, L.P.\n9 West 57th Street, 43rd Floor\nNew York, New York 10019\nAttention: Sam Oh\nLadies and Gentlemen:\nIn connection with the consideration of a possible transaction (the "Transaction") between Parallel Petroleum Corporation, a Delaware\ncorporation (the "Company"), and Apollo Management VII, L.P. ("Buyer"), the Company and Buyer acknowledge that the Company may make\navailable to Buyer from time to time certain information concerning the Company's business, financial condition, operations, assets and liabilities,\nwhether prepared by the Company, its advisors or otherwise. As a condition to entering into any discussions relating to the Transaction, Buyer agrees\nto comply with its obligations hereunder and to take or abstain from taking certain other actions as hereinafter set forth.\n1. Evaluation Material; Non-Disclosure Obligation and Use Restriction. The term "Evaluation Material" shall mean all information, data\nand analysis furnished by the Company or its Representatives to Buyer or its Representatives relating to the Company or the Transaction, and any\nanalyses, compilations, studies, documents or other material prepared by Buyer or its Representatives containing or based in whole or in part upon\nsuch information, data or analysis, but does not include information, data or analysis that (i) is already in the possession of Buyer or its\nRepresentatives or becomes subsequently available to Buyer or its Representatives on a non-confidential basis from a source not known or\nreasonably suspected by Buyer or its Representatives to be bound by a confidentiality agreement or secrecy obligation to the Company, (ii) is\nor\nbecomes generally available to or known by the public other than as a result of a breach of this letter agreement by Buyer or its Representatives or\n(iii) has already been or is hereafter independently acquired or developed by Buyer or any of its Representatives without violating any confidentiality\nagreement or secrecy obligation to the Company. "Representatives" shall mean such party's affiliates and its and their respective, directors, officers,\nemployees, agents, lenders, potential financing sources and advisers (including, without limitation, attorneys, accountants, consultants, bankers and\nfinancial advisors) and representatives of the foregoing. Buyer recognizes and acknowledges the potential competitive value of the Evaluation\nMaterial and the damage that could result from the disclosure thereof to third parties. Accordingly, Buyer agrees that the Evaluation Material will be\nused solely for the purpose of evaluating the Transaction and related actions, and that such information will be kept confidential by Buyer and its\nRepresentatives; provided, however, that (w) such information may be disclosed by Buyer to its Representatives who need to know such information\nfor the purpose of evaluating the Transaction or their participation therein (it being understood that such Representatives shall be informed of the\nconfidential nature of the information), (x) it shall not constitute a breach of this letter agreement if any disclosure of such information is made with\nthe Company's prior written consent, (y) it shall not constitute a breach of this letter agreement for Buyer or its Representatives to disclose such\ninformation to the extent that Buyer believes, based on the advice of counsel, that it is legally required to disclose such information in order to avoid\ncommitting a violation of any law, rule or regulation, including any rules or regulations of any securities association, stock exchange or national\nsecurities quotation system, provided that, to the extent permitted by law or regulation, Buyer provides notice to the Company as promptly as\npracticable of the proposed disclosure and takes the other actions required in connection with a required disclosure pursuant to Section 3 below\nand\n(z) it shall not constitute a breach of this letter agreement for Buyer or its Representatives to disclose such information to the\nextent that such disclosure is permitted pursuant to Section 3 below. Buyer agrees to be responsible for any breach of the terms of this letter\nagreement that are applicable to Representatives by any of its Representatives.\n2. Non-Disclosure of Discussions. Each party agrees that, without the prior written consent of the other party, such party and its\nRepresentatives will not disclose to any other person (other than such party's Representatives on a need to know basis) the fact that any Evaluation\nMaterial\nhas\nbeen\nmade\navailable\nhereunder,\nthat\ndiscussions\nor\nnegotiations\nare\ntaking\nplace\nconcerning\na\npossible\nTransaction\nor\nany\nof\nthe\nterms,\nconditions or other facts with respect to the possible Transaction (including the status thereof); provided, that a party may make such disclosure if\n(i) based on the advice of such party's counsel, such disclosure is necessary to avoid committing a violation of, or to insure compliance with, any\nlaws, rules or regulations, including any rules or regulations of any securities association, stock exchange or national securities quotation system,\n(ii) to the extent permitted by law or regulation, the disclosing party provides notice to the other party of the proposed disclosure and cooperates in\ngood faith with respect to the timing, manner and content of such disclosure (to the extent consistent with its obligation to make disclosure) or\n(iii) the aforementioned facts are or become generally available to or known by the public other than as a result of a breach of this letter agreement\nby such party.\n3. Required Disclosure. In the event that Buyer or its Representatives are requested or required (by oral questions, interrogatories, requests for\ninformation or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation\nMaterial or any other facts or information, the disclosure of which is prohibited by this letter agreement, Buyer shall, to the extent permitted by law\nor regulation, (i) provide the Company with notice as promptly as practicable of any such request or requirement so that the Company may seek a\nprotective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement and (ii) consult with the Company\nas to the advisability of taking legally available steps to resist or narrow such request. If, in the absence of a protective order or other remedy, or the\nreceipt of a waiver by the Company, Buyer or any of its Representatives should nonetheless, based on the advice of such party's counsel, disclose the\nEvaluation Material and/or the facts or information covered by Section 2, Buyer or its Representative may, without liability hereunder, disclose only\nthat portion of the Evaluation Material and/or such facts or information that such counsel advises is legally required to be disclosed; provided that, to\nthe extent permitted by law or regulation, Buyer gives the Company written notice of the Evaluation Material and/or such facts or other information\nto be disclosed as promptly as practicable and exercises its commercially reasonable efforts to preserve the confidentiality of the Evaluation Material\nand/or such facts or other information, including, without limitation, by cooperating with the Company to obtain an appropriate protective order or\nother reliable assurance that confidential treatment will be accorded to the Evaluation Material and/or such facts or information.\n4. Termination of Discussions. If either party decides that it does not wish to proceed with discussions or negotiations relating to a Transaction\nwith the other party, the party so deciding shall promptly inform the other party of that decision. At such time, or at any time for any reason, upon the\nwritten request of the Company, Buyer will as promptly as practicable destroy all written Evaluation Material provided by the Company. In the event\nof such request, all other Evaluation Material prepared by Buyer shall be destroyed, and in no event shall Buyer be obligated to disclose or provide\nthe Evaluation Material prepared by it or its Representatives to the Company. Notwithstanding the foregoing, (i) Buyer and its Representatives may\nkeep archival copies of any Evaluation Materials for legal and compliance purposes or to comply with any bona fide records retention policy and\n(ii) each party and its Representatives will continue to be bound by their obligations of confidentiality hereunder for a period of one (1) year from the\ndate hereof.\n5. Standstill Agreement. For a period of one (1) year from the date hereof, Buyer agrees that it shall not, without the prior written consent of\nthe Company, directly or indirectly, alone or in concert with others, (a) acquire, offer to acquire, or agree to acquire, by purchase, or otherwise,\nownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 of the Securities Exchange Act of 1934) of (i) more than 5%\nof any class of voting equity securities issued by the Company, or (ii) any debt instruments issued by the Company,\n2\nincluding, without limitation, the Company's 1/4% Senior Notes Due 2014, or promissory notes made and issued by the Company to its\ncommercial bank lenders, (b) propose to enter into any merger or business combination involving the Company or any of its subsidiaries, (c) make,\nor in any way participate in, any "solicitation" of "proxies" (as such terms are used in the proxy rules of the United States Securities and Exchange\nCommission) with respect to the securities of the Company, or advise or seek to influence any person or entity with respect to the voting of, or giving\nof consents with respect to, any securities of the Company or any of its subsidiaries, (d) seek or propose to influence or control (whether through a\n"group," as such term is used in Rule 13d-5 of the Securities Exchange Act of 1934 or otherwise) the management, board of directors, policies\nor\naffairs of the Company or any of its subsidiaries, (e) disclose any intention, plan or arrangement inconsistent with any of the foregoing or\n(f) encourage any third party to do any of the foregoing. As used in this Section 5, the term "'securities" shall mean any securities of the Company\nand any direct or indirect warrants, rights or options to acquire securities of the Company.\n6. Procedure for Communications. It is understood that the parties will arrange for appropriate contacts for due diligence purposes. Unless\notherwise agreed, all (i) communications regarding a possible Transaction, (ii) requests for information and (iii) discussions or questions regarding\nprocedures, will be submitted or directed to the Company.\n7. Non-solicitation of Employees. Buyer agrees that for the term of one (1) year from the date hereof that it will not offer employment or\nemploy any employee of the Company or its affiliates with whom Buyer has had contact or who became known to Buyer in connection with its\nconsideration of the Transaction, other than any person who (i) has been terminated by the Company or any of its affiliates prior to commencement\nof\nemployment discussions between Buyer and such person, or (ii) responds to a general or public solicitation of employment not targeted at such\nperson (including solicitations in a trade magazine or newspaper of general circulation or by a bona fide search firm).\n8. Miscellaneous.\n(a)\nUnless and until a definitive agreement between the parties with respect to any Transaction has been executed and delivered, neither the\nCompany nor Buyer will be under any legal obligation of any kind whatsoever with respect to a Transaction by virtue of this letter\nagreement or any written or oral expression with respect to such a Transaction by any of its Representatives except for the matters\nspecifically agreed to in this letter agreement. Each party further agrees that neither party shall have any obligation to authorize or pursue\nwith the other party any Transaction. Each party acknowledges and agrees that each reserves the right, in its sole and absolute discretion,\nto reject any and all proposals and to terminate discussions and negotiations with the other at any time.\n(b)\nIt is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder. The agreements set forth in this letter agreement may be modified or waived only by a separate writing\nbetween the parties hereto.\n(c)\nNotwithstanding anything herein to the contrary, all of the obligations of the parties hereunder shall (if not sooner terminated) terminate\non the first anniversary of the date hereof; provided, however, that no such termination shall relieve a party from liability for any breach\nby such party of the terms hereof that exists on the date of such termination.\n(d)\nBuyer understands and agrees that neither the Company nor any of its Representatives has made or makes any representation or\nwarranty, express or implied, as to the accuracy or completeness of the Evaluation Material or shall have any liability to Buyer or any of\nits Representatives resulting from the use of the Evaluation Material or any errors in or omissions therefrom, except in each case to the\nextent expressly provided in any definitive agreement.\n(e) Each party hereby represents that it has the power and authority to execute and deliver this letter agreement, and that it has been duly\nauthorized and constitutes a valid and binding agreement of such\n3\nparty, enforceable in accordance with its terms. This letter agreement shall be binding upon the respective successors in interest of the\nparties hereto and shall inure to the benefit of, and be enforceable by, the respective successors in interest of the parties hereto.\n(f) This agreement contains the entire agreement and understanding between the parties as to the subject matter hereof and supersedes any\nprior agreements, commitments, representations, writings and discussions, whether oral or written, relating to that subject matter. If any\nprovision of this letter agreement is held by a court of competent jurisdiction in a final, non-appealable judgment to be invalid, illegal or\nunenforceable, the remainder of the provisions of this letter shall remain in full force and effect and any invalid, illegal or unenforceable\nprovision shall be replaced with a valid, legal or enforceable provision, the effect of which comes as close as possible to that of the\ninvalid, illegal or unenforceable provision.\n(g)\nThe validity and interpretation of this letter agreement shall be governed by, and construed and enforced in accordance with, the laws of\nthe State of Texas without regard to conflicts-of-law rules or principles.\n(h)\nThis letter agreement may be executed in one or more counterparts. Each such counterpart shall be deemed to be an original instrument,\nbut all such counterparts taken together shall constitute one and the same agreement.\n(i) Buyer agrees that money damages may not be a sufficient remedy for any breach of this letter agreement by Buyer or any of its\nRepresentatives and that the Company shall be entitled to seek equitable relief, including injunction and specific performance, as well as\nreimbursement for legal and other expenses as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive\nremedies for a breach of this letter agreement, but shall be in addition to all other remedies available at law or equity. In the event of\nlitigation concerning this letter agreement, if a court of competent jurisdiction determines in a final non-appealable order that a party has\nbreached this letter agreement, then such party shall be liable for and pay the other party's reasonable legal fees and expenses incurred in\nconnection with such litigation, including any appeal therefrom or review thereof.\n(j)\nThe Company agrees that, without prejudice to any claim it may have against Buyer or any of Buyer's affiliates, no proceedings in\nrespect of any claim the Company may have against Buyer or its affiliates may be taken against Buyer's or its affiliates' directors,\nofficers or employees or Buyer's or its affiliates' controlling persons, partners, members or agents to the extent such controlling persons,\npartners, members or agents are individuals.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned.\nSincerely,\nPARALLEL PETROLEUM CORPORATION\nBy:\n/s/\nLARRY C. OLDHAM\nLarry C. Oldham,\nPresident and Chief Executive Officer\nACCEPTED AND AGREED as of\nJune 30, 2009\nAPOLLO MANAGEMENT VII, L.P.\nBy:\nAIF VII Management, LLC\nits General Partner\nBy:\n/s/ WENDY K. MODLIN\nName:\nWendy K. Modlin\nTitle:\nVice President\n4	EX-99.(D)(2) 9 dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nPARALLEL PETROLEUM CORPORATION\n1004 N. Big Spring, Suite 400\nMidland, Texas 79701\nTelephone (432) 684-3727\nFax (432) 685-6572\nJune 30, 2009\nSTRICTLY CONFIDENTIAL\nApollo Management VII, L.P.\n9 West 57 Street, 43 Floor\nNew York, New York 10019\nAttention: Sam Oh\nLadies and Gentlemen:\nIn connection with the consideration of a possible transaction (the “Transaction”) between Parallel Petroleum Corporation, a Delaware\ncorporation (the “Company”), and Apollo Management VII, L.P. (“Buyer”), the Company and Buyer acknowledge that the Company may make\navailable to Buyer from time to time certain information concerning the Company’s business, financial condition, operations, assets and liabilities,\nwhether prepared by the Company, its advisors or otherwise. As a condition to entering into any discussions relating to the Transaction, Buyer agrees\nto comply with its obligations hereunder and to take or abstain from taking certain other actions as hereinafter set forth.\n1. Evaluation Material; Non-Disclosure Obligation and Use Restriction. The term “Evaluation Material” shall mean all information, data\nand analysis furnished by the Company or its Representatives to Buyer or its Representatives relating to the Company or the Transaction, and any\nanalyses, compilations, studies, documents or other material prepared by Buyer or its Representatives containing or based in whole or in part upon\nsuch information, data or analysis, but does not include information, data or analysis that (i) is already in the possession of Buyer or its\nRepresentatives or becomes subsequently available to Buyer or its Representatives on a non-confidential basis from a source not known or\nreasonably suspected by Buyer or its Representatives to be bound by a confidentiality agreement or secrecy obligation to the Company, (ii) is or\nbecomes generally available to or known by the public other than as a result of a breach of this letter agreement by Buyer or its Representatives or\n(iii) has already been or is hereafter independently acquired or developed by Buyer or any of its Representatives without violating any confidentiality\nagreement or secrecy obligation to the Company. “Representatives” shall mean such party’s affiliates and its and their respective, directors, officers,\nemployees, agents, lenders, potential financing sources and advisers (including, without limitation, attorneys, accountants, consultants, bankers and\nfinancial advisors) and representatives of the foregoing. Buyer recognizes and acknowledges the potential competitive value of the Evaluation\nMaterial and the damage that could result from the disclosure thereof to third parties. Accordingly, Buyer agrees that the Evaluation Material will be\nused solely for the purpose of evaluating the Transaction and related actions, and that such information will be kept confidential by Buyer and its\nRepresentatives; provided, however, that (w) such information may be disclosed by Buyer to its Representatives who need to know such information\nfor the purpose of evaluating the Transaction or their participation therein (it being understood that such Representatives shall be informed of the\nconfidential nature of the information), (x) it shall not constitute a breach of this letter agreement if any disclosure of such information is made with\nthe Company’s prior written consent, (y) it shall not constitute a breach of this letter agreement for Buyer or its Representatives to disclose such\ninformation to the extent that Buyer believes, based on the advice of counsel, that it is legally required to disclose such information in order to avoid\ncommitting a violation of any law, rule or regulation, including any rules or regulations of any securities association, stock exchange or national\nsecurities quotation system, provided that, to the extent permitted by law or regulation, Buyer provides notice to the Company as promptly as\npracticable of the proposed disclosure and takes the other actions required in connection with a required disclosure pursuant to Section 3 below and\n(z) it shall not constitute a breach of this letter agreement for Buyer or its Representatives to disclose such information to the\nth\nrd\nextent that such disclosure is permitted pursuant to Section 3 below. Buyer agrees to be responsible for any breach of the terms of this letter\nagreement that are applicable to Representatives by any of its Representatives.\n2. Non-Disclosure of Discussions. Each party agrees that, without the prior written consent of the other party, such party and its\nRepresentatives will not disclose to any other person (other than such party’s Representatives on a need to know basis) the fact that any Evaluation\nMaterial has been made available hereunder, that discussions or negotiations are taking place concerning a possible Transaction or any of the terms,\nconditions or other facts with respect to the possible Transaction (including the status thereof); provided, that a party may make such disclosure if\n(i) based on the advice of such party’s counsel, such disclosure is necessary to avoid committing a violation of, or to insure compliance with, any\nlaws, rules or regulations, including any rules or regulations of any securities association, stock exchange or national securities quotation system,\n(ii) to the extent permitted by law or regulation, the disclosing party provides notice to the other party of the proposed disclosure and cooperates in\ngood faith with respect to the timing, manner and content of such disclosure (to the extent consistent with its obligation to make disclosure) or\n(iii) the aforementioned facts are or become generally available to or known by the public other than as a result of a breach of this letter agreement\nby such party.\n3. Required Disclosure. In the event that Buyer or its Representatives are requested or required (by oral questions, interrogatories, requests for\ninformation or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation\nMaterial or any other facts or information, the disclosure of which is prohibited by this letter agreement, Buyer shall, to the extent permitted by law\nor regulation, (i) provide the Company with notice as promptly as practicable of any such request or requirement so that the Company may seek a\nprotective order or other appropriate remedy and/or waive compliance with the provisions of this letter agreement and (ii) consult with the Company\nas to the advisability of taking legally available steps to resist or narrow such request. If, in the absence of a protective order or other remedy, or the\nreceipt of a waiver by the Company, Buyer or any of its Representatives should nonetheless, based on the advice of such party’s counsel, disclose the\nEvaluation Material and/or the facts or information covered by Section 2, Buyer or its Representative may, without liability hereunder, disclose only\nthat portion of the Evaluation Material and/or such facts or information that such counsel advises is legally required to be disclosed; provided that, to\nthe extent permitted by law or regulation, Buyer gives the Company written notice of the Evaluation Material and/or such facts or other information\nto be disclosed as promptly as practicable and exercises its commercially reasonable efforts to preserve the confidentiality of the Evaluation Material\nand/or such facts or other information, including, without limitation, by cooperating with the Company to obtain an appropriate protective order or\nother reliable assurance that confidential treatment will be accorded to the Evaluation Material and/or such facts or information.\n4. Termination of Discussions. If either party decides that it does not wish to proceed with discussions or negotiations relating to a Transaction\nwith the other party, the party so deciding shall promptly inform the other party of that decision. At such time, or at any time for any reason, upon the\nwritten request of the Company, Buyer will as promptly as practicable destroy all written Evaluation Material provided by the Company. In the event\nof such request, all other Evaluation Material prepared by Buyer shall be destroyed, and in no event shall Buyer be obligated to disclose or provide\nthe Evaluation Material prepared by it or its Representatives to the Company. Notwithstanding the foregoing, (i) Buyer and its Representatives may\nkeep archival copies of any Evaluation Materials for legal and compliance purposes or to comply with any bona fide records retention policy and\n(ii) each party and its Representatives will continue to be bound by their obligations of confidentiality hereunder for a period of one (1) year from the\ndate hereof.\n5. Standstill Agreement. For a period of one (1) year from the date hereof, Buyer agrees that it shall not, without the prior written consent of\nthe Company, directly or indirectly, alone or in concert with others, (a) acquire, offer to acquire, or agree to acquire, by purchase, or otherwise,\nownership (including, but not limited to, beneficial ownership as defined in Rule 13d-3 of the Securities Exchange Act of 1934) of (i) more than 5%\nof any class of voting equity securities issued by the Company, or (ii) any debt instruments issued by the Company,\n2\nincluding, without limitation, the Company’s 10 /4% Senior Notes Due 2014, or promissory notes made and issued by the Company to its\ncommercial bank lenders, (b) propose to enter into any merger or business combination involving the Company or any of its subsidiaries, (c) make,\nor in any way participate in, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the United States Securities and Exchange\nCommission) with respect to the securities of the Company, or advise or seek to influence any person or entity with respect to the voting of, or giving\nof consents with respect to, any securities of the Company or any of its subsidiaries, (d) seek or propose to influence or control (whether through a\n“group,” as such term is used in Rule 13d-5 of the Securities Exchange Act of 1934 or otherwise) the management, board of directors, policies or\naffairs of the Company or any of its subsidiaries, (e) disclose any intention, plan or arrangement inconsistent with any of the foregoing or\n(f) encourage any third party to do any of the foregoing. As used in this Section 5, the term “securities” shall mean any securities of the Company\nand any direct or indirect warrants, rights or options to acquire securities of the Company.\n6. Procedure for Communications. It is understood that the parties will arrange for appropriate contacts for due diligence purposes. Unless\notherwise agreed, all (i) communications regarding a possible Transaction, (ii) requests for information and (iii) discussions or questions regarding\nprocedures, will be submitted or directed to the Company.\n7. Non-solicitation of Employees. Buyer agrees that for the term of one (1) year from the date hereof that it will not offer employment or\nemploy any employee of the Company or its affiliates with whom Buyer has had contact or who became known to Buyer in connection with its\nconsideration of the Transaction, other than any person who (i) has been terminated by the Company or any of its affiliates prior to commencement\nof employment discussions between Buyer and such person, or (ii) responds to a general or public solicitation of employment not targeted at such\nperson (including solicitations in a trade magazine or newspaper of general circulation or by a bona fide search firm).\n8. Miscellaneous.\n(a) Unless and until a definitive agreement between the parties with respect to any Transaction has been executed and delivered, neither the\nCompany nor Buyer will be under any legal obligation of any kind whatsoever with respect to a Transaction by virtue of this letter\nagreement or any written or oral expression with respect to such a Transaction by any of its Representatives except for the matters\nspecifically agreed to in this letter agreement. Each party further agrees that neither party shall have any obligation to authorize or pursue\nwith the other party any Transaction. Each party acknowledges and agrees that each reserves the right, in its sole and absolute discretion,\nto reject any and all proposals and to terminate discussions and negotiations with the other at any time.\n(b) It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right,\npower or privilege hereunder. The agreements set forth in this letter agreement may be modified or waived only by a separate writing\nbetween the parties hereto.\n(c) Notwithstanding anything herein to the contrary, all of the obligations of the parties hereunder shall (if not sooner terminated) terminate\non the first anniversary of the date hereof; provided, however, that no such termination shall relieve a party from liability for any breach\nby such party of the terms hereof that exists on the date of such termination.\n(d) Buyer understands and agrees that neither the Company nor any of its Representatives has made or makes any representation or\nwarranty, express or implied, as to the accuracy or completeness of the Evaluation Material or shall have any liability to Buyer or any of\nits Representatives resulting from the use of the Evaluation Material or any errors in or omissions therefrom, except in each case to the\nextent expressly provided in any definitive agreement.\n(e) Each party hereby represents that it has the power and authority to execute and deliver this letter agreement, and that it has been duly\nauthorized and constitutes a valid and binding agreement of such\n3\n1\nparty, enforceable in accordance with its terms. This letter agreement shall be binding upon the respective successors in interest of the\nparties hereto and shall inure to the benefit of, and be enforceable by, the respective successors in interest of the parties hereto.\n(f) This agreement contains the entire agreement and understanding between the parties as to the subject matter hereof and supersedes any\nprior agreements, commitments, representations, writings and discussions, whether oral or written, relating to that subject matter. If any\nprovision of this letter agreement is held by a court of competent jurisdiction in a final, non-appealable judgment to be invalid, illegal or\nunenforceable, the remainder of the provisions of this letter shall remain in full force and effect and any invalid, illegal or unenforceable\nprovision shall be replaced with a valid, legal or enforceable provision, the effect of which comes as close as possible to that of the\ninvalid, illegal or unenforceable provision.\n(g) The validity and interpretation of this letter agreement shall be governed by, and construed and enforced in accordance with, the laws of\nthe State of Texas without regard to conflicts-of-law rules or principles.\n(h) This letter agreement may be executed in one or more counterparts. Each such counterpart shall be deemed to be an original instrument,\nbut all such counterparts taken together shall constitute one and the same agreement.\n(i) Buyer agrees that money damages may not be a sufficient remedy for any breach of this letter agreement by Buyer or any of its\nRepresentatives and that the Company shall be entitled to seek equitable relief, including injunction and specific performance, as well as\nreimbursement for legal and other expenses as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive\nremedies for a breach of this letter agreement, but shall be in addition to all other remedies available at law or equity. In the event of\nlitigation concerning this letter agreement, if a court of competent jurisdiction determines in a final non-appealable order that a party has\nbreached this letter agreement, then such party shall be liable for and pay the other party’s reasonable legal fees and expenses incurred in\nconnection with such litigation, including any appeal therefrom or review thereof.\n(j) The Company agrees that, without prejudice to any claim it may have against Buyer or any of Buyer’s affiliates, no proceedings in\nrespect of any claim the Company may have against Buyer or its affiliates may be taken against Buyer’s or its affiliates’ directors,\nofficers or employees or Buyer’s or its affiliates’ controlling persons, partners, members or agents to the extent such controlling persons,\npartners, members or agents are individuals.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned.\nSincerely,\nPARALLEL PETROLEUM CORPORATION\nBy:\n/s/ LARRY C. OLDHAM\nLarry C. Oldham,\nPresident and Chief Executive Officer\nACCEPTED AND AGREED as of\nJune 30, 2009\nAPOLLO MANAGEMENT VII, L.P.\nBy: AIF VII Management, LLC\nits General Partner\nBy:\n/s/ WENDY K. MODLIN\nName:\nTitle:\nWendy K. Modlin\nVice President\n4
+d6d3a5dbe3bd0ccb09d24e59162efca4.pdf	effective_date jurisdiction party term	EX-10 .5 6 exh_105.htm EXHIBIT 10.5\nExhibit 10.5\nNON-DISCLOSURE AGREEMENT\nThe undersigned (the “Director”), being a director and co-portfolio manager of Harbert Discovery Fund GP, LLC, the General Partner of Harbert\nDiscovery Fund LP (collectively with Harbert Fund Advisors, Inc. and Harbert Management Corporation (“Harbert”) and a member of the Board\nof Directors of Perceptron, Inc., a Michigan corporation (the “Company”), may be provided certain information and data in connection with\nserving as a director of the Company which the Company wishes to keep confidential, including, but not limited to, information (whether\nfurnished in writing or electronic format or orally) regarding the Company’s governance, board of directors, management, plans, strategies,\nbusiness, finances or operations, including information relating to financial statements, evaluations, plans, programs, customers, plants,\nequipment and other assets, products, processes, manufacturing, marketing, research and development, know-how and technology, intellectual\nproperty and trade secrets and information which the Company has obtained from third parties and with respect to which the Company is\nobligated to maintain confidentiality (collectively, “Confidential Information”). Except as provided in this Agreement, the Director will not (i)\ndisclose any Confidential Information in any manner whatsoever, (ii) use any Confidential Information other than in connection with serving as a\ndirector of the Company or (iii), in the case of Jack Bryant, notwithstanding clause (ii) of this paragraph, use any Confidential Information other\nthan in connection with decisions by Harbert to purchase or sell common stock of the Company in compliance with the terms of this Agreement,\nwithout securing the prior written consent of the Company.\nNothing contained in this Agreement shall prevent the Director from privately disclosing Confidential Information to (i) officers, directors,\naccountants and counsel for the Company, (ii) the Director’s legal counsel (“Director Representative”) who need to know such information for\nthe sole purpose of advising the Director on his actions as a director of the Company or (iii) officers, directors, accountants and legal counsel of\nHarbert (“Harbert Representatives”); provided however, that the Director shall not disclose Confidential Information to the extent such disclosure\nwould be reasonably likely to constitute waiver of the attorney-client privilege between the Company and its counsel or the Company’s attorney\nwork product privilege. Any Director Representative shall only be provided Confidential Information by the Director to the extent that they are\ninformed of the confidential nature of the Confidential Information and agree or are otherwise obligated to keep such information confidential\nand to restrict the use of such confidential information in accordance with the terms of this Agreement. Prior to the disclosure of Confidential\nInformation from the Director, the Director Representatives or Harbert Representatives who will receive Confidential Information shall agree in\nwriting to keep the Confidential Information confidential, to restrict the use of Confidential Information in accordance with the terms of this\nAgreement, to be bound by this Agreement on the same terms as the Director and to permit the Company to enforce such agreement, and a copy\nof such writing executed by the Director Representatives or Harbert Representatives who will receive Confidential Information shall be delivered\nto the Company.\nThe term “Confidential Information” shall not include information which (a) is at the time of disclosure or thereafter becomes generally available\nto the public other than as a result of a disclosure by the Director, a Director Representative, Harbert or Harbert Representatives in violation of\nthis Agreement; (b) was, prior to disclosure by the Company, already in the possession of the Director, a Director Representative, Harbert or\nHarbert Representatives, provided that the source of such information was, to such person’s knowledge after reasonable inquiry, not bound by a\nconfidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company; (c) becomes available to the\nDirector, a Director Representative, Harbert or Harbert Representatives on a non-confidential basis from a source (other than the Company, a\nCompany affiliate or a Company agent, representative, attorney, advisor, director, officer or employee (collectively, the “Company\nRepresentatives”)) that is, to such person’s knowledge after reasonable inquiry, not bound by a confidentiality agreement with or other\ncontractual, legal or fiduciary obligation of confidentiality to the Company, and is not, to such person’s knowledge after reasonable inquiry, under\nan obligation to the Company not to transmit the information to such person; or (d) was independently developed by the Director, a Director\nRepresentative, Harbert or Harbert Representatives without reference to or use of the Confidential Information.\nThe Director is aware, and will advise any Director Representative, Harbert or Harbert Representatives who is informed of the matters that are\nthe subject of this Agreement, that the Confidential Information may constitute material, non-public information and of the restrictions imposed\nby the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from a\npublicly traded company and on the communication of such information to any other person who may purchase or sell such securities in reliance\nupon such information. The Director, any Director Representative, Harbert or Harbert Representatives to whom the Director transmits\nConfidential Information under this Agreement will comply with all applicable federal and state securities laws in connection with the purchase\nor sale, directly or indirectly, of securities of the Company or any other entity of which the Director is provided material non-public information\nin his capacity as a director of the Company for as long as the Director, any Director Representative, Harbert or Harbert Representatives are in\npossession of material non-public information about the Company or such other entity. The Director and the Company acknowledge that none of\nthe provisions hereto shall in any way limit the Director ’s or Harbert or Harbert Representative’s activities in the ordinary course of their\nbusinesses if such activities will not violate applicable securities laws or the obligations specifically agreed to under this Agreement.\nThe Director, any Director Representative, Harbert or any Harbert Representative to whom the Director transmits Confidential Information under\nthis Agreement acknowledges that none of the Company, any Company affiliate or any Company Representative makes any representation or\nwarranty, express or implied, as to the accuracy or completeness of the Confidential Information. None of the Company, any Company affiliate\nor any Company Representative shall have any liability to the Director, any Director Representative, Harbert or Harbert Representative\nhereunder relating to or resulting from the use of the Confidential Information by the Director, any Director Representative, Harbert or Harbert\nRepresentative or any errors in or omissions from the Confidential Information.\nIn the event that the Director, any Director Representative, Harbert or Harbert Representative is requested in any proceeding or governmental\ninquiry to disclose any Confidential Information, the Director will give the Company prompt written notice, to the extent not legally prohibited,\nof such request so that the Company may seek an appropriate protective order or waive compliance with the applicable provisions of this\nAgreement. If the Company seeks a protective order, the Director and Harbert agree, and shall cause Harbert, to provide such cooperation as the\nCompany shall reasonably request and in no event will they oppose action by the Company to obtain a protective order or other relief to prevent\nthe disclosure of Confidential Information or to obtain reliable assurance that confidential treatment will be afforded to the Confidential\nInformation. If in the absence of a protective order, the Director, any Director Representative, Harbert or Harbert Representatives, based upon the\nadvice of counsel, is legally required to disclose Confidential Information, or if the Company waives compliance with this Agreement, such\nperson or entity may disclose without liability under this Agreement such portion of the Confidential Information which counsel advises that the\nDirector, any Director Representative, Harbert or Harbert Representatives is legally required to disclose if the recipient of such Confidential\nInformation is informed of this Agreement and the confidential nature of such Confidential Information. For the avoidance of doubt, there shall\nbe no legal requirement applicable to the Director, Harbert or Harbert Representatives to disclose any Confidential Information solely by virtue\nof the fact that, absent such disclosure, such parties would be prohibited from purchasing, selling, or engaging in derivative or other voluntary\ntransactions with respect to the Company’s securities.\nThe Director and Harbert agree that in the event of a breach of this Agreement, monetary damages alone may be inadequate, and the Company\nshall be entitled to seek injunctive or other equitable relief to prevent breaches of this Agreement in addition to any and all other remedies that\nmay be available to the Company.\nThis Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by either party in exercising any right\nhereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any right hereunder.\nThe provisions of this Agreement relating to confidentiality shall terminate one (1) year after the Director ceases to be a director of the Company,\nexcept that any Confidential Information constituting trade secrets of the Company (as defined in 18 U.S.C . § 1839(3)) shall be kept confidential\nin accordance with the obligations of this Agreement for such longer time as such information constitutes a trade secret of the Company. The\ninvalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision.\nThis Agreement shall be governed by the laws of the state of Michigan, without giving effect to any conflicts of laws principles thereof, and shall\nbe binding on each party’s successors and assigns.\nAll Confidential Information shall remain the property of the Company and none of the Director, Harbert, or any Harbert Representative shall by\nvirtue of any disclosure of or use of any Confidential Information acquire any rights with respect thereto, all of which rights (including all\nintellectual property rights) shall remain exclusively with the Company. At any time after the date on which the Director is no longer a director of\nthe Company, upon the request of the Company for any reason, the Director promptly return to the Company or destroy all hard copies of the\nConfidential Information and use reasonable best efforts to permanently erase or delete all electronic copies of the Confidential Information in\nthe possession or control of the Director, Harbert or Harbert Representatives. Notwithstanding anything to the contrary contained in this\nparagraph, the Director, Harbert Representatives and Harbert shall be permitted to retain such Confidential Information as is necessary to enable\nthem to comply with any applicable document retention requirements under applicable law or regulation or its internal compliance procedures,\nand to retain any computer records and computer files containing any Confidential Information if required pursuant to their respective current\nautomatic archiving and backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as\nthe case may be, and the provisions of this Agreement shall continue as to such information as long as it is retained by such person irrespective of\nthe termination provisions set forth above.\nThe Director agrees to be bound by the terms and conditions of the Standstill Agreement, dated August 9, 2016, by and between the Company,\nHarbert Discovery Fund LP, Harbert Discovery Fund GP, LLC, Harbert Fund Advisors, Inc. and Harbert Management Corporation, by executing\nand delivering to the Company a Joinder Agreement in the form attached to this Agreement as Exhibit A.\nAcceptance of the above terms shall be indicated by having this letter countersigned by the Director and Harbert.\nSincerely,\nPERCEPTRON, INC.\nBy: /s/ W. Richard Marz\nName: W. Richard Marz\nTitle: Chairman of the Board, President and Chief Executive Officer\nReceived and consented to this 9th day of August, 2016\n/s/ John F. Bryant\nJohn F. Bryant\nACKNOWLEDGED AND AGREED:\nHARBERT DISCOVERY FUND LP\nBy: Harbert Discovery Fund GP, LLC\nBy: /s/ Kevin A. McGovern\nName: Kevin A. McGovern\nTitle: Vice President and Associate General Counsel\nHARBERT DISCOVERY FUND GP, LLC\nBy: /s/ Kevin A. McGovern\nName: Kevin A. McGovern\nTitle: Vice President and Associate General Counsel\nHARBERT FUND ADVISORS, INC.\nBy: /s/ John W. McCollough\nName: John W. McCollough\nTitle: Executive Vice President and General Counsel\nHARBERT MANAGEMENT CORPORATION\nBy: /s/ John W. McCollough\nName: John W. McCollough\nTitle: Executive Vice President and General Counsel\nJOINDER AGREEMENT\nThis Joinder Agreement (the “Agreement”), dated as of August 9, 2016, is delivered pursuant to the Non-Disclosure Agreement (the\n“Confidentiality Agreement”), dated August 9, 2016, by and between Perceptron, Inc. (the “Company”), Harbert Discovery Fund LP, Harbert\nDiscovery Fund GP, LLC, Harbert Fund Advisors Inc., Harbert Management Corporation and the undersigned. Capitalized terms not otherwise\ndefined herein have the meaning set forth in the Standstill Agreement (the “Standstill Agreement”), dated August 9, 2016, by and between the\nCompany, Harbert Discovery Fund LP, Harbert Discovery Fund GP, LLC, Harbert Fund Advisors, Inc., and Harbert Management Corporation, a\ncopy of which is attached to this Agreement as Exhibit A.\nThe undersigned wishes to be elected as a Director. As a condition precedent to being elected as Director, the undersigned is required to\nbecome a party to the Standstill Agreement.\nBy executing and delivering this Agreement, the undersigned hereby becomes a party to the Standstill Agreement and shall be fully\nbound by, and subject to, all of the covenants, terms and conditions of the Standstill Agreement as though an original party to such agreement\nand shall be deemed a Holders Director for all purposes of such agreement.\nJohn F. Bryant	EX-10.5 6 exh_105.htm EXHIBIT 10.5\nExhibit 10.5\nNON-DISCLOSURE AGREEMENT\nThe undersigned (the “Director”), being a director and co-portfolio manager of Harbert Discovery Fund GP, LLC, the General Partner of Harbert\nDiscovery Fund LP (collectively with Harbert Fund Advisors, Inc. and Harbert Management Corporation (“Harbert”) and a member of the Board\nof Directors of Perceptron, Inc., a Michigan corporation (the “Company”), may be provided certain information and data in connection with\nserving as a director of the Company which the Company wishes to keep confidential, including, but not limited to, information (whether\nfurnished in writing or electronic format or orally) regarding the Company’s governance, board of directors, management, plans, strategies,\nbusiness, finances or operations, including information relating to financial statements, evaluations, plans, programs, customers, plants,\nequipment and other assets, products, processes, manufacturing, marketing, research and development, know-how and technology, intellectual\nproperty and trade secrets and information which the Company has obtained from third parties and with respect to which the Company is\nobligated to maintain confidentiality (collectively, “Confidential Information”). Except as provided in this Agreement, the Director will not (i)\ndisclose any Confidential Information in any manner whatsoever, (ii) use any Confidential Information other than in connection with serving as a\ndirector of the Company or (iii), in the case of Jack Bryant, notwithstanding clause (ii) of this paragraph, use any Confidential Information other\nthan in connection with decisions by Harbert to purchase or sell common stock of the Company in compliance with the terms of this Agreement,\nwithout securing the prior written consent of the Company.\nNothing contained in this Agreement shall prevent the Director from privately disclosing Confidential Information to (i) officers, directors,\naccountants and counsel for the Company, (ii) the Director’s legal counsel (“Director Representative”) who need to know such information for\nthe sole purpose of advising the Director on his actions as a director of the Company or (iii) officers, directors, accountants and legal counsel of\nHarbert (“Harbert Representatives”); provided however, that the Director shall not disclose Confidential Information to the extent such disclosure\nwould be reasonably likely to constitute waiver of the attorney-client privilege between the Company and its counsel or the Company’s attorney\nwork product privilege. Any Director Representative shall only be provided Confidential Information by the Director to the extent that they are\ninformed of the confidential nature of the Confidential Information and agree or are otherwise obligated to keep such information confidential\nand to restrict the use of such confidential information in accordance with the terms of this Agreement. Prior to the disclosure of Confidential\nInformation from the Director, the Director Representatives or Harbert Representatives who will receive Confidential Information shall agree in\nwriting to keep the Confidential Information confidential, to restrict the use of Confidential Information in accordance with the terms of this\nAgreement, to be bound by this Agreement on the same terms as the Director and to permit the Company to enforce such agreement, and a copy\nof such writing executed by the Director Representatives or Harbert Representatives who will receive Confidential Information shall be delivered\nto the Company.\nThe term “Confidential Information” shall not include information which (a) is at the time of disclosure or thereafter becomes generally available\nto the public other than as a result of a disclosure by the Director, a Director Representative, Harbert or Harbert Representatives in violation of\nthis Agreement; (b) was, prior to disclosure by the Company, already in the possession of the Director, a Director Representative, Harbert or\nHarbert Representatives, provided that the source of such information was, to such person’s knowledge after reasonable inquiry, not bound by a\nconfidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company; (c) becomes available to the\nDirector, a Director Representative, Harbert or Harbert Representatives on a non-confidential basis from a source (other than the Company, a\nCompany affiliate or a Company agent, representative, attorney, advisor, director, officer or employee (collectively, the “Company\nRepresentatives™)) that is, to such person’s knowledge after reasonable inquiry, not bound by a confidentiality agreement with or other\ncontractual, legal or fiduciary obligation of confidentiality to the Company, and is not, to such person’s knowledge after reasonable inquiry, under\nan obligation to the Company not to transmit the information to such person; or (d) was independently developed by the Director, a Director\nRepresentative, Harbert or Harbert Representatives without reference to or use of the Confidential Information.\nThe Director is aware, and will advise any Director Representative, Harbert or Harbert Representatives who is informed of the matters that are\nthe subject of this Agreement, that the Confidential Information may constitute material, non-public information and of the restrictions imposed\nby the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from a\npublicly traded company and on the communication of such information to any other person who may purchase or sell such securities in reliance\nupon such information. The Director, any Director Representative, Harbert or Harbert Representatives to whom the Director transmits\nConfidential Information under this Agreement will comply with all applicable federal and state securities laws in connection with the purchase\nor sale, directly or indirectly, of securities of the Company or any other entity of which the Director is provided material non-public information\nin his capacity as a director of the Company for as long as the Director, any Director Representative, Harbert or Harbert Representatives are in\npossession of material non-public information about the Company or such other entity. The Director and the Company acknowledge that none of\nthe provisions hereto shall in any way limit the Director’s or Harbert or Harbert Representative’s activities in the ordinary course of their\nbusinesses if such activities will not violate applicable securities laws or the obligations specifically agreed to under this Agreement.\nThe Director, any Director Representative, Harbert or any Harbert Representative to whom the Director transmits Confidential Information under\nthis Agreement acknowledges that none of the Company, any Company affiliate or any Company Representative makes any representation or\nwarranty, express or implied, as to the accuracy or completeness of the Confidential Information. None of the Company, any Company affiliate\nor any Company Representative shall have any liability to the Director, any Director Representative, Harbert or Harbert Representative\nhereunder relating to or resulting from the use of the Confidential Information by the Director, any Director Representative, Harbert or Harbert\nRepresentative or any errors in or omissions from the Confidential Information.\nIn the event that the Director, any Director Representative, Harbert or Harbert Representative is requested in any proceeding or governmental\ninquiry to disclose any Confidential Information, the Director will give the Company prompt written notice, to the extent not legally prohibited,\nof such request so that the Company may seek an appropriate protective order or waive compliance with the applicable provisions of this\nAgreement. If the Company seeks a protective order, the Director and Harbert agree, and shall cause Harbert, to provide such cooperation as the\nCompany shall reasonably request and in no event will they oppose action by the Company to obtain a protective order or other relief to prevent\nthe disclosure of Confidential Information or to obtain reliable assurance that confidential treatment will be afforded to the Confidential\nInformation. If in the absence of a protective order, the Director, any Director Representative, Harbert or Harbert Representatives, based upon the\nadvice of counsel, is legally required to disclose Confidential Information, or if the Company waives compliance with this Agreement, such\nperson or entity may disclose without liability under this Agreement such portion of the Confidential Information which counsel advises that the\nDirector, any Director Representative, Harbert or Harbert Representatives is legally required to disclose if the recipient of such Confidential\nInformation is informed of this Agreement and the confidential nature of such Confidential Information. For the avoidance of doubt, there shall\nbe no legal requirement applicable to the Director, Harbert or Harbert Representatives to disclose any Confidential Information solely by virtue\nof the fact that, absent such disclosure, such parties would be prohibited from purchasing, selling, or engaging in derivative or other voluntary\ntransactions with respect to the Company’s securities.\nThe Director and Harbert agree that in the event of a breach of this Agreement, monetary damages alone may be inadequate, and the Company\nshall be entitled to seek injunctive or other equitable relief to prevent breaches of this Agreement in addition to any and all other remedies that\nmay be available to the Company.\nThis Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by either party in exercising any right\nhereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any right hereunder.\nThe provisions of this Agreement relating to confidentiality shall terminate one (1) year after the Director ceases to be a director of the Company,\nexcept that any Confidential Information constituting trade secrets of the Company (as defined in 18 U.S.C. § 1839(3)) shall be kept confidential\nin accordance with the obligations of this Agreement for such longer time as such information constitutes a trade secret of the Company. The\ninvalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision.\nThis Agreement shall be governed by the laws of the state of Michigan, without giving effect to any conflicts of laws principles thereof, and shall\nbe binding on each party’s successors and assigns.\nAll Confidential Information shall remain the property of the Company and none of the Director, Harbert, or any Harbert Representative shall by\nvirtue of any disclosure of or use of any Confidential Information acquire any rights with respect thereto, all of which rights (including all\nintellectual property rights) shall remain exclusively with the Company. At any time after the date on which the Director is no longer a director of\nthe Company, upon the request of the Company for any reason, the Director promptly return to the Company or destroy all hard copies of the\nConfidential Information and use reasonable best efforts to permanently erase or delete all electronic copies of the Confidential Information in\nthe possession or control of the Director, Harbert or Harbert Representatives. Notwithstanding anything to the contrary contained in this\nparagraph, the Director, Harbert Representatives and Harbert shall be permitted to retain such Confidential Information as is necessary to enable\nthem to comply with any applicable document retention requirements under applicable law or regulation or its internal compliance procedures,\nand to retain any computer records and computer files containing any Confidential Information if required pursuant to their respective current\nautomatic archiving and backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as\nthe case may be, and the provisions of this Agreement shall continue as to such information as long as it is retained by such person irrespective of\nthe termination provisions set forth above.\nThe Director agrees to be bound by the terms and conditions of the Standstill Agreement, dated August 9, 2016, by and between the Company,\nHarbert Discovery Fund LP, Harbert Discovery Fund GP, LLC, Harbert Fund Advisors, Inc. and Harbert Management Corporation, by executing\nand delivering to the Company a Joinder Agreement in the form attached to this Agreement as Exhibit A.\nAcceptance of the above terms shall be indicated by having this letter countersigned by the Director and Harbert.\nSincerely,\nPERCEPTRON, INC.\nBy: /s/ W. Richard Marz\nName: W. Richard Marz\nTitle: Chairman of the Board, President and Chief Executive Officer\nReceived and consented to this 9th day of August, 2016\n/s/ John F. Bryant\nJohn F. Bryant\nACKNOWLEDGED AND AGREED:\nHARBERT DISCOVERY FUND LP\nBy: Harbert Discovery Fund GP, LLC\nBy: /s/ Kevin A. McGovern\nName: Kevin A. McGovern\nTitle: Vice President and Associate General Counsel\nHARBERT DISCOVERY FUND GP, LLC\nBy: /s/ Kevin A. McGovern\nName: Kevin A. McGovern\nTitle: Vice President and Associate General Counsel\nHARBERT FUND ADVISORS, INC.\nBy: /s/ John W. McCollough\nName: John W. McCollough\nTitle: Executive Vice President and General Counsel\nHARBERT MANAGEMENT CORPORATION\nBy: /s/ John W. McCollough\nName: John W. McCollough\nTitle: Executive Vice President and General Counsel\nJOINDER AGREEMENT\nThis Joinder Agreement (the “Agreement”), dated as of August 9, 2016, is delivered pursuant to the Non-Disclosure Agreement (the\n“Confidentiality Agreement”), dated August 9, 2016, by and between Perceptron, Inc. (the “Company”), Harbert Discovery Fund LP, Harbert\nDiscovery Fund GP, LLC, Harbert Fund Advisors Inc., Harbert Management Corporation and the undersigned. Capitalized terms not otherwise\ndefined herein have the meaning set forth in the Standstill Agreement (the “Standstill Agreement”), dated August 9, 2016, by and between the\nCompany, Harbert Discovery Fund LP, Harbert Discovery Fund GP, LLC, Harbert Fund Advisors, Inc., and Harbert Management Corporation, a\ncopy of which is attached to this Agreement as Exhibit A.\nThe undersigned wishes to be elected as a Director. As a condition precedent to being elected as Director, the undersigned is required to\nbecome a party to the Standstill Agreement.\nBy executing and delivering this Agreement, the undersigned hereby becomes a party to the Standstill Agreement and shall be fully\nbound by, and subject to, all of the covenants, terms and conditions of the Standstill Agreement as though an original party to such agreement\nand shall be deemed a Holders Director for all purposes of such agreement.\nJohn F. Bryant	EX-10.5 exh_105.htm EXHIBIT 10.5\nExhibit 10.5\nNON-DISCLOSURE AGREEMENT\nThe undersigned (the "Director"), being a director and co-portfolio manager of Harbert Discovery Fund GP, LLC, the General Partner of Harbert\nDiscovery Fund LP (collectively with Harbert Fund Advisors, Inc. and Harbert Management Corporation ("Harbert") and a member of the Board\nof Directors of Perceptron, Inc., a Michigan corporation (the "Company"), may be provided certain information and data in connection with\nserving as a director of the Company which the Company wishes to keep confidential, including, but not limited to, information (whether\nfurnished in writing or electronic format or orally) regarding the Company's governance, board of directors, management, plans, strategies,\nbusiness, finances or operations, including information relating to financial statements, evaluations, plans, programs, customers, plants,\nequipment and other assets, products, processes, manufacturing, marketing, research and development, know-how and technology, intellectual\nproperty and trade secrets and information which the Company has obtained from third parties and with respect to which the Company is\nobligated to maintain confidentiality (collectively, "Confidential Information"). Except as provided in this Agreement, the Director will not (i)\ndisclose any Confidential Information in any manner whatsoever, (ii) use any Confidential Information other than in connection with serving as a\ndirector of the Company or (iii), in the case of Jack Bryant, notwithstanding clause (ii) of this paragraph, use any Confidential Information other\nthan in connection with decisions by Harbert to purchase or sell common stock of the Company in compliance with the terms of this Agreement,\nwithout securing the prior written consent of the Company.\nNothing contained in this Agreement shall prevent the Director from privately disclosing Confidential Information to (i) officers, directors,\naccountants and counsel for the Company, (ii) the Director's legal counsel ("Director Representative") who need to know such information for\nthe\nsole\npurpose\nof\nadvising\nthe\nDirector\non\nhis\nactions\nas\na\ndirector\nof\nthe\nCompany\nor\n(iii)\nofficers,\ndirectors,\naccountants\nand\nlegal\ncounsel\nof\nHarbert ("Harbert Representatives"); provided however, that the Director shall not disclose Confidential Information to the extent such disclosure\nwould be reasonably likely to constitute waiver of the attorney-client privilege between the Company and its counsel or the Company's attorney\nwork product privilege. Any Director Representative shall only be provided Confidential Information by the Director to the extent that\nthey\nare\ninformed of the confidential nature of the Confidential Information and agree or are otherwise obligated to keep such information confidential\nand to restrict the use of such confidential information in accordance with the terms of this Agreement. Prior to the disclosure of Confidential\nInformation\nfrom\nthe\nDirector,\nthe\nDirector\nRepresentatives\nor\nHarbert\nRepresentatives\nwho\nwill\nreceive\nConfidential\nInformation\nshall\nagree\nin\nwriting to keep the Confidential Information confidential, to restrict the use of Confidential Information in accordance with the terms of this\nAgreement, to be bound by this Agreement on the same terms as the Director and to permit the Company to enforce such agreement, and a copy\nof such writing executed by the Director Representatives or Harbert Representatives who will receive Confidential Information shall be delivered\nto the Company.\nThe term "Confidential Information" shall not include information which (a) is at the time of disclosure or thereafter becomes generally available\nto the public other than as a result of a disclosure by the Director, a Director Representative, Harbert or Harbert Representatives in violation of\nthis Agreement; (b) was, prior to disclosure by the Company, already in the possession of the Director, a Director Representative, Harbert or\nHarbert Representatives, provided that the source of such information was, to such person's knowledge after reasonable inquiry, not bound by a\nconfidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company; (c) becomes available to the\nDirector, a Director Representative, Harbert or Harbert Representatives on a non-confidential basis from a source (other than the Company, a\nCompany affiliate or a Company agent, representative, attorney, advisor, director, officer or employee (collectively, the "Company\nRepresentatives")) that is, to such person's knowledge after reasonable inquiry, not bound by a confidentiality agreement with or other\ncontractual, legal or fiduciary obligation of confidentiality to the Company, and is not, to such person's knowledge after reasonable inquiry, under\nan obligation to the Company not to transmit the information to such person; or (d) was independently developed by the Director, a Director\nRepresentative, Harbert or Harbert Representatives without reference to or use of the Confidential Information.\nThe Director is aware, and will advise any Director Representative, Harbert or Harbert Representatives who is informed of the matters that are\nthe\nsubject of this Agreement, that the Confidential Information may constitute material, non-public information and of the restrictions imposed\nby the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from a\npublicly traded company and on the communication of such information to any other person who may purchase or sell such securities in reliance\nupon such information. The Director, any Director Representative, Harbert or Harbert Representatives to whom the Director transmits\nConfidential Information under this Agreement will comply with all applicable federal and state securities laws in connection with the purchase\nor sale, directly or indirectly, of securities of the Company or any other entity of which the Director is provided material non-public information\nin his capacity as a director of the Company for as long as the Director, any Director Representative, Harbert or Harbert Representatives are in\npossession of material non-public information about the Company or such other entity. The Director and the Company acknowledge\nthat\nnone\nof\nthe provisions hereto shall in any way limit the Director's or Harbert or Harbert Representative's activities in the ordinary course of their\nbusinesses if such activities will not violate applicable securities laws or the obligations specifically agreed to under this Agreement.\nThe Director, any Director Representative, Harbert or any Harbert Representative to whom the Director transmits Confidential Information under\nthis Agreement acknowledges that none of the Company, any Company affiliate or any Company Representative makes any representation or\nwarranty, express or implied, as to the accuracy or completeness of the Confidential Information. None of the Company, any Company affiliate\nor any Company Representative shall have any liability to the Director, any Director Representative, Harbert or Harbert Representative\nhereunder relating to or resulting from the use of the Confidential Information by the Director, any Director Representative, Harbert or Harbert\nRepresentative or any errors in or omissions from the Confidential Information.\nIn\nthe event that the Director, any Director Representative, Harbert or Harbert Representative is requested in any proceeding or governmental\ninquiry to disclose any Confidential Information, the Director will give the Company prompt written notice, to the extent not legally prohibited,\nof such request so that the Company may seek an appropriate protective order or waive compliance with the applicable provisions of this\nAgreement. If the Company seeks a protective order, the Director and Harbert agree, and shall cause Harbert, to provide such cooperation as the\nCompany shall reasonably request and in no event will they oppose action by the Company to obtain a protective order or other relief to prevent\nthe disclosure of Confidential Information or to obtain reliable assurance that confidential treatment will be afforded to the Confidential\nInformation. If in the absence of a protective order, the Director, any Director Representative, Harbert or Harbert Representatives, based upon the\nadvice of counsel, is legally required to disclose Confidential Information, or if the Company waives compliance with this Agreement, such\nperson or entity may disclose without liability under this Agreement such portion of the Confidential Information which counsel advises that the\nDirector, any Director Representative, Harbert or Harbert Representatives is legally required to disclose if the recipient of such Confidential\nInformation is informed of this Agreement and the confidential nature of such Confidential Information. For the avoidance of doubt, there shall\nbe no legal requirement applicable to the Director, Harbert or Harbert Representatives to disclose any Confidential Information solely by virtue\nof the fact that, absent such disclosure, such parties would be prohibited from purchasing, selling, or engaging in derivative or other voluntary\ntransactions with respect to the Company's securities.\nThe Director and Harbert agree that in the event of a breach of this Agreement, monetary damages alone may be inadequate, and the Company\nshall be entitled to seek injunctive or other equitable relief to prevent breaches of this Agreement in addition to any and all other remedies that\nmay be available to the Company.\nThis Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by either party in exercising any right\nhereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any right hereunder.\nThe provisions of this Agreement relating to confidentiality shall terminate one (1) year after the Director ceases to be a director of the Company,\nexcept that any Confidential Information constituting trade secrets of the Company (as defined in 18 U.S.C. 8 1839(3)) shall be kept confidential\nin accordance with the obligations of this Agreement for such longer time as such information constitutes a trade secret of the Company. The\ninvalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision.\nThis Agreement shall be governed by the laws of the state of Michigan, without giving effect to any conflicts of laws principles thereof, and shall\nbe binding on each party's successors and assigns.\nAll Confidential Information shall remain the property of the Company and none of the Director, Harbert, or any Harbert Representative shall by\nvirtue of any disclosure of or use of any Confidential Information acquire any rights with respect thereto, all of which rights (including\nall\nintellectual\nproperty\nrights)\nshall\nremain\nexclusively\nwith\nthe\nCompany.\nAt\nany\ntime\nafter\nthe\ndate\non\nwhich\nthe\nDirector\nis\nno\nlonger\na\ndirector\nof\nthe Company, upon the request of the Company for any reason, the Director promptly return to the Company or destroy all hard copies of the\nConfidential Information and use reasonable best efforts to permanently erase or delete all electronic copies of the Confidential Information in\nthe possession or control of the Director, Harbert or Harbert Representatives. Notwithstanding anything to the contrary contained in this\nparagraph, the Director, Harbert Representatives and Harbert shall be permitted to retain such Confidentia Information as is necessary to enable\nthem to comply with any applicable document retention requirements under applicable law or regulation or its internal compliance procedures,\nand to retain any computer records and computer files containing any Confidential Information if required pursuant to their respective current\nautomatic archiving and backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as\nthe case may be, and the provisions of this Agreement shall continue as to such information as long as it is retained by such person irrespective of\nthe termination provisions set forth above.\nThe Director agrees to be bound by the terms and conditions of the Standstill Agreement, dated August 9, 2016, by and between the Company,\nHarbert Discovery Fund LP, Harbert Discovery Fund GP, LLC, Harbert Fund Advisors, Inc. and Harbert Management Corporation, by executing\nand delivering to the Company a Joinder Agreement in the form attached to this Agreement as Exhibit A.\nAcceptance of the above terms shall be indicated by having this letter countersigned by the Director and Harbert.\nSincerely,\nPERCEPTRON, INC.\nBy: /s/ W. Richard Marz\nName: W. Richard Marz\nTitle: Chairman of the Board, President and Chief Executive Officer\nReceived and consented to this 9th day of August, 2016\n/s/ John F. Bryant\nJohn F. Bryant\nACKNOWLEDGED AND AGREED:\nHARBERT DISCOVERY FUND LP\nBy: Harbert Discovery Fund GP, LLC\nBy: /s/ Kevin A. McGovern\nName: Kevin A. McGovern\nTitle: Vice President and Associate General Counsel\nHARBERT DISCOVERY FUND GP, LLC\nBy: /s/ Kevin A. McGovern\nName: Kevin A. McGovern\nTitle: Vice President and Associate General Counsel\nHARBERT FUND ADVISORS, INC.\nBy: /s/ John W. McCollough\nName: John W. McCollough\nTitle: Executive Vice President and General Counsel\nHARBERT MANAGEMENT CORPORATION\nBy: /s/ John W. McCollough\nName: John W. McCollough\nTitle: Executive Vice President and General Counsel\nJOINDER AGREEMENT\nThis Joinder Agreement (the "Agreement"), dated as of August 9, 2016, is delivered pursuant to the Non-Disclosure Agreement (the\n"Confidentiality Agreement"), dated August 9, 2016, by and between Perceptron, Inc. (the "Company"), Harbert Discovery Fund LP, Harbert\nDiscovery Fund GP, LLC, Harbert Fund Advisors Inc., Harbert Management Corporation and the undersigned. Capitalized terms not otherwise\ndefined herein have the meaning set forth in the Standstill Agreement (the "Standstill Agreement"), dated August 9, 2016, by and between the\nCompany, Harbert Discovery Fund LP, Harbert Discovery Fund GP, LLC, Harbert Fund Advisors, Inc., and Harbert Management Corporation, a\ncopy of which is attached to this Agreement as Exhibit A.\nThe undersigned wishes to be elected as a Director. As a condition precedent to being elected as Director, the undersigned is required to\nbecome a party to the Standstill Agreement.\nBy executing and delivering this Agreement, the undersigned hereby becomes a party to the Standstill Agreement and shall be fully\nbound by, and subject to, all of the covenants, terms and conditions of the Standstill Agreement as though an original party to such agreement\nand shall be deemed a Holders Director for all purposes of such agreement.\nJohn F. Bryant	EX-10 .5 6 exh_105.htm EXHIBIT 10.5\nExhibit 10.5\nNON-DISCLOSURE AGREEMENT\nThe undersigned (the “Director”), being a director and co-portfolio manager of Harbert Discovery Fund GP, LLC, the General Partner of Harbert\nDiscovery Fund LP (collectively with Harbert Fund Advisors, Inc. and Harbert Management Corporation (“Harbert”) and a member of the Board\nof Directors of Perceptron, Inc., a Michigan corporation (the “Company”), may be provided certain information and data in connection with\nserving as a director of the Company which the Company wishes to keep confidential, including, but not limited to, information (whether\nfurnished in writing or electronic format or orally) regarding the Company’s governance, board of directors, management, plans, strategies,\nbusiness, finances or operations, including information relating to financial statements, evaluations, plans, programs, customers, plants,\nequipment and other assets, products, processes, manufacturing, marketing, research and development, know-how and technology, intellectual\nproperty and trade secrets and information which the Company has obtained from third parties and with respect to which the Company is\nobligated to maintain confidentiality (collectively, “Confidential Information”). Except as provided in this Agreement, the Director will not (i)\ndisclose any Confidential Information in any manner whatsoever, (ii) use any Confidential Information other than in connection with serving as a\ndirector of the Company or (iii), in the case of Jack Bryant, notwithstanding clause (ii) of this paragraph, use any Confidential Information other\nthan in connection with decisions by Harbert to purchase or sell common stock of the Company in compliance with the terms of this Agreement,\nwithout securing the prior written consent of the Company.\nNothing contained in this Agreement shall prevent the Director from privately disclosing Confidential Information to (i) officers, directors,\naccountants and counsel for the Company, (ii) the Director’s legal counsel (“Director Representative”) who need to know such information for\nthe sole purpose of advising the Director on his actions as a director of the Company or (iii) officers, directors, accountants and legal counsel of\nHarbert (“Harbert Representatives”); provided however, that the Director shall not disclose Confidential Information to the extent such disclosure\nwould be reasonably likely to constitute waiver of the attorney-client privilege between the Company and its counsel or the Company’s attorney\nwork product privilege. Any Director Representative shall only be provided Confidential Information by the Director to the extent that they are\ninformed of the confidential nature of the Confidential Information and agree or are otherwise obligated to keep such information confidential\nand to restrict the use of such confidential information in accordance with the terms of this Agreement. Prior to the disclosure of Confidential\nInformation from the Director, the Director Representatives or Harbert Representatives who will receive Confidential Information shall agree in\nwriting to keep the Confidential Information confidential, to restrict the use of Confidential Information in accordance with the terms of this\nAgreement, to be bound by this Agreement on the same terms as the Director and to permit the Company to enforce such agreement, and a copy\nof such writing executed by the Director Representatives or Harbert Representatives who will receive Confidential Information shall be delivered\nto the Company.\nThe term “Confidential Information” shall not include information which (a) is at the time of disclosure or thereafter becomes generally available\nto the public other than as a result of a disclosure by the Director, a Director Representative, Harbert or Harbert Representatives in violation of\nthis Agreement; (b) was, prior to disclosure by the Company, already in the possession of the Director, a Director Representative, Harbert or\nHarbert Representatives, provided that the source of such information was, to such person’s knowledge after reasonable inquiry, not bound by a\nconfidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company; (c) becomes available to the\nDirector, a Director Representative, Harbert or Harbert Representatives on a non-confidential basis from a source (other than the Company, a\nCompany affiliate or a Company agent, representative, attorney, advisor, director, officer or employee (collectively, the “Company\nRepresentatives”)) that is, to such person’s knowledge after reasonable inquiry, not bound by a confidentiality agreement with or other\ncontractual, legal or fiduciary obligation of confidentiality to the Company, and is not, to such person’s knowledge after reasonable inquiry, under\nan obligation to the Company not to transmit the information to such person; or (d) was independently developed by the Director, a Director\nRepresentative, Harbert or Harbert Representatives without reference to or use of the Confidential Information.\nThe Director is aware, and will advise any Director Representative, Harbert or Harbert Representatives who is informed of the matters that are\nthe subject of this Agreement, that the Confidential Information may constitute material, non-public information and of the restrictions imposed\nby the United States securities laws on the purchase or sale of securities by any person who has received material, non-public information from a\npublicly traded company and on the communication of such information to any other person who may purchase or sell such securities in reliance\nupon such information. The Director, any Director Representative, Harbert or Harbert Representatives to whom the Director transmits\nConfidential Information under this Agreement will comply with all applicable federal and state securities laws in connection with the purchase\nor sale, directly or indirectly, of securities of the Company or any other entity of which the Director is provided material non-public information\nin his capacity as a director of the Company for as long as the Director, any Director Representative, Harbert or Harbert Representatives are in\npossession of material non-public information about the Company or such other entity. The Director and the Company acknowledge that none of\nthe provisions hereto shall in any way limit the Director ’s or Harbert or Harbert Representative’s activities in the ordinary course of their\nbusinesses if such activities will not violate applicable securities laws or the obligations specifically agreed to under this Agreement.\nThe Director, any Director Representative, Harbert or any Harbert Representative to whom the Director transmits Confidential Information under\nthis Agreement acknowledges that none of the Company, any Company affiliate or any Company Representative makes any representation or\nwarranty, express or implied, as to the accuracy or completeness of the Confidential Information. None of the Company, any Company affiliate\nor any Company Representative shall have any liability to the Director, any Director Representative, Harbert or Harbert Representative\nhereunder relating to or resulting from the use of the Confidential Information by the Director, any Director Representative, Harbert or Harbert\nRepresentative or any errors in or omissions from the Confidential Information.\nIn the event that the Director, any Director Representative, Harbert or Harbert Representative is requested in any proceeding or governmental\ninquiry to disclose any Confidential Information, the Director will give the Company prompt written notice, to the extent not legally prohibited,\nof such request so that the Company may seek an appropriate protective order or waive compliance with the applicable provisions of this\nAgreement. If the Company seeks a protective order, the Director and Harbert agree, and shall cause Harbert, to provide such cooperation as the\nCompany shall reasonably request and in no event will they oppose action by the Company to obtain a protective order or other relief to prevent\nthe disclosure of Confidential Information or to obtain reliable assurance that confidential treatment will be afforded to the Confidential\nInformation. If in the absence of a protective order, the Director, any Director Representative, Harbert or Harbert Representatives, based upon the\nadvice of counsel, is legally required to disclose Confidential Information, or if the Company waives compliance with this Agreement, such\nperson or entity may disclose without liability under this Agreement such portion of the Confidential Information which counsel advises that the\nDirector, any Director Representative, Harbert or Harbert Representatives is legally required to disclose if the recipient of such Confidential\nInformation is informed of this Agreement and the confidential nature of such Confidential Information. For the avoidance of doubt, there shall\nbe no legal requirement applicable to the Director, Harbert or Harbert Representatives to disclose any Confidential Information solely by virtue\nof the fact that, absent such disclosure, such parties would be prohibited from purchasing, selling, or engaging in derivative or other voluntary\ntransactions with respect to the Company’s securities.\nThe Director and Harbert agree that in the event of a breach of this Agreement, monetary damages alone may be inadequate, and the Company\nshall be entitled to seek injunctive or other equitable relief to prevent breaches of this Agreement in addition to any and all other remedies that\nmay be available to the Company.\nThis Agreement may not be amended except in writing signed by all the parties hereto. No failure or delay by either party in exercising any right\nhereunder or any partial exercise thereof shall operate as a waiver thereof or preclude any other or further exercise of any right hereunder.\nThe provisions of this Agreement relating to confidentiality shall terminate one (1) year after the Director ceases to be a director of the Company,\nexcept that any Confidential Information constituting trade secrets of the Company (as defined in 18 U.S.C . § 1839(3)) shall be kept confidential\nin accordance with the obligations of this Agreement for such longer time as such information constitutes a trade secret of the Company. The\ninvalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision.\nThis Agreement shall be governed by the laws of the state of Michigan, without giving effect to any conflicts of laws principles thereof, and shall\nbe binding on each party’s successors and assigns.\nAll Confidential Information shall remain the property of the Company and none of the Director, Harbert, or any Harbert Representative shall by\nvirtue of any disclosure of or use of any Confidential Information acquire any rights with respect thereto, all of which rights (including all\nintellectual property rights) shall remain exclusively with the Company. At any time after the date on which the Director is no longer a director of\nthe Company, upon the request of the Company for any reason, the Director promptly return to the Company or destroy all hard copies of the\nConfidential Information and use reasonable best efforts to permanently erase or delete all electronic copies of the Confidential Information in\nthe possession or control of the Director, Harbert or Harbert Representatives. Notwithstanding anything to the contrary contained in this\nparagraph, the Director, Harbert Representatives and Harbert shall be permitted to retain such Confidential Information as is necessary to enable\nthem to comply with any applicable document retention requirements under applicable law or regulation or its internal compliance procedures,\nand to retain any computer records and computer files containing any Confidential Information if required pursuant to their respective current\nautomatic archiving and backup procedures; provided, however, that such retention shall be solely for legal, regulatory or archival purposes, as\nthe case may be, and the provisions of this Agreement shall continue as to such information as long as it is retained by such person irrespective of\nthe termination provisions set forth above.\nThe Director agrees to be bound by the terms and conditions of the Standstill Agreement, dated August 9, 2016, by and between the Company,\nHarbert Discovery Fund LP, Harbert Discovery Fund GP, LLC, Harbert Fund Advisors, Inc. and Harbert Management Corporation, by executing\nand delivering to the Company a Joinder Agreement in the form attached to this Agreement as Exhibit A.\nAcceptance of the above terms shall be indicated by having this letter countersigned by the Director and Harbert.\nSincerely,\nPERCEPTRON, INC.\nBy: /s/ W. Richard Marz\nName: W. Richard Marz\nTitle: Chairman of the Board, President and Chief Executive Officer\nReceived and consented to this 9th day of August, 2016\n/s/ John F. Bryant\nJohn F. Bryant\nACKNOWLEDGED AND AGREED:\nHARBERT DISCOVERY FUND LP\nBy: Harbert Discovery Fund GP, LLC\nBy: /s/ Kevin A. McGovern\nName: Kevin A. McGovern\nTitle: Vice President and Associate General Counsel\nHARBERT DISCOVERY FUND GP, LLC\nBy: /s/ Kevin A. McGovern\nName: Kevin A. McGovern\nTitle: Vice President and Associate General Counsel\nHARBERT FUND ADVISORS, INC.\nBy: /s/ John W. McCollough\nName: John W. McCollough\nTitle: Executive Vice President and General Counsel\nHARBERT MANAGEMENT CORPORATION\nBy: /s/ John W. McCollough\nName: John W. McCollough\nTitle: Executive Vice President and General Counsel\nJOINDER AGREEMENT\nThis Joinder Agreement (the “Agreement”), dated as of August 9, 2016, is delivered pursuant to the Non-Disclosure Agreement (the\n“Confidentiality Agreement”), dated August 9, 2016, by and between Perceptron, Inc. (the “Company”), Harbert Discovery Fund LP, Harbert\nDiscovery Fund GP, LLC, Harbert Fund Advisors Inc., Harbert Management Corporation and the undersigned. Capitalized terms not otherwise\ndefined herein have the meaning set forth in the Standstill Agreement (the “Standstill Agreement”), dated August 9, 2016, by and between the\nCompany, Harbert Discovery Fund LP, Harbert Discovery Fund GP, LLC, Harbert Fund Advisors, Inc., and Harbert Management Corporation, a\ncopy of which is attached to this Agreement as Exhibit A.\nThe undersigned wishes to be elected as a Director. As a condition precedent to being elected as Director, the undersigned is required to\nbecome a party to the Standstill Agreement.\nBy executing and delivering this Agreement, the undersigned hereby becomes a party to the Standstill Agreement and shall be fully\nbound by, and subject to, all of the covenants, terms and conditions of the Standstill Agreement as though an original party to such agreement\nand shall be deemed a Holders Director for all purposes of such agreement.\nJohn F. Bryant
+d714d261edc4d361e7d2ebabccaada50.pdf	effective_date jurisdiction party term	EX-10 .2 3 exhibit102-confidentiality.htm EXHIBIT 10.2\nExhibit A\nCONFIDENTIALITY, NON-INTERFERENCE, AND INVENTION ASSIGNMENT AGREEMENT\nAs a condition of my becoming employed by, or continuing employment with, HealthEquity, Inc., a Delaware\ncorporation (the “Company”), and in consideration of my employment with the Company and my receipt of the\ncompensation now and hereafter paid to me by the Company, I agree to the following terms set forth in this\nConfidentiality, Non-Interference, and Invention Assignment Agreement (this “Non-Interference Agreement”):\nSection 1. Confidential Information.\n(a) Company Group Information. I acknowledge that, during the course of my employment, I will have access\nto information about the Company and its direct and indirect subsidiaries and affiliates (collectively, the “Company\nGroup”) and that my employment with the Company shall bring me into close contact with confidential and proprietary\ninformation of any member of the Company Group. In recognition of the foregoing, I agree, at all times during the term\nof my employment with the Company and thereafter, to hold in confidence, and not to use, except for the benefit of any\nmember of the Company Group, or to disclose to any person, firm, corporation, or other entity without written\nauthorization of the Company, any Confidential Information that I obtain or create. I further agree not to make copies of\nsuch Confidential Information except as authorized by the Company. I understand that “Confidential Information”\nmeans information that any member of the Company Group has developed, acquired, created, compiled, discovered, or\nowned or will develop, acquire, create, compile, discover, or own, that has value in or to the business of any member of\nthe Company Group that is not generally known and that the Company wishes to maintain as confidential. I understand\nthat Confidential Information includes, but is not limited to, any and all non-public information that relates to the actual\nor anticipated business and/or products, research, or development of the Company, or to the Company’s technical data,\ntrade secrets, or know-how, including, but not limited to, research, product plans, or other information regarding the\nCompany’s products or services and markets, customer lists, and customers (including, but not limited to, customers of\nthe Company on whom I called or with whom I may become acquainted during the term of my employment), software,\ndevelopments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration\ninformation, marketing, finances, and other business information disclosed by the Company either directly or indirectly\nin writing, orally, or by drawings or inspection of premises, parts, equipment, or other Company property.\nNotwithstanding the foregoing, Confidential Information shall not include (i) any of the foregoing items that have\nbecome publicly and widely known through no unauthorized disclosure by me or others who were under confidentiality\nobligations as to the item or items involved, or (ii) any information that I am required to disclose to, or by, any\ngovernmental or judicial authority; provided, however, that in such event I will give the Company prompt written notice\nthereof so that any member of the Company Group may seek an appropriate protective order and/or waive in writing\ncompliance with the confidentiality provisions of this Non-Interference Agreement.\nA-1\n(b) Former Employer Information. I represent that my performance of all of the terms of this Non-Interference\nAgreement as an employee of the Company has not breached and will not breach any agreement to keep in confidence\nproprietary information, knowledge, or data acquired by me in confidence or trust prior or subsequent to the\ncommencement of my employment with the Company, and I will not disclose to any member of the Company Group, or\ninduce any member of the Company Group to use, any developments, or confidential or proprietary information or\nmaterial I may have obtained in connection with employment with any prior employer in violation of a confidentiality\nagreement, nondisclosure agreement, or similar agreement with such prior employer.\n(c) Third Party Information. I understand that the Company Group has received and in the future may receive\nfrom third parties confidential or proprietary information (“Third Party Information”) subject to a duty on the Company\nGroup’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. In\nrecognition of the foregoing, I agree, at all times during the period of my employment with the Company (the\n“Employment Period”) and thereafter, to hold in confidence and will not disclose to anyone (other than Company Group\npersonnel who need to know such information in connection with their work for the Company Group), and not to use,\nexcept for the benefit of the Company Group, Third Party Information without the express prior written consent of an\nofficer of the Company and otherwise treat Third Party Information as Confidential Information.\n(d) Whistleblower; Defend Trade Secrets Act Disclosure.\n(i) In addition, I understand that nothing in this Agreement shall be construed to prohibit me from\nreporting possible violations of law or regulation to any governmental agency or regulatory body or making other\ndisclosures that are protected under any law or regulation, or from filing a charge with or participating in any\ninvestigation or proceeding conducted by any governmental agency or regulatory body.\n(ii) I understand that the Defend Trade Secrets Act provides that I may not be held criminally or civilly\nliable under any Federal or state trade secret law for the disclosure of a trade secret that is made in confidence to a\nFederal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of\nreporting or investigating a suspected violation of law; or that is made in a complaint or other document filed in a lawsuit\nor other proceeding, if such filing is made under seal. In the event that I file a lawsuit for retaliation by any member of\nthe Company Group for reporting a suspected violation of law, I may disclose the trade secret to my attorney and use the\ntrade secret information in the court proceeding, if I file any document containing the trade secret under seal and do not\ndisclose the trade secret, except pursuant to court order.\nSection 2. Developments.\n(a) Developments Retained and Licensed. I have attached hereto, as Schedule A, a list describing with\nparticularity all developments, original works of authorship, improvements, and trade secrets that I can demonstrate\nwere created or owned by me prior to the\nA-2\ncommencement of my employment (collectively referred to as “Prior Developments”), which belong solely to me or\nbelong to me jointly with another, that relate in any way to any of the actual or proposed businesses, products, or\nresearch and development of any member of the Company Group, and that are not assigned to the Company hereunder,\nor if no such list is attached, I represent that there are no such Prior Developments. If, during any period during which I\nperform or performed services for any member of the Company Group both before or after the date hereof (the\n“Assignment Period”), whether as an officer, employee, director, independent contractor, consultant, or agent, or in any\nother capacity, I incorporate (or have incorporated) into any member of the Company Group’s product or process a Prior\nDevelopment owned by me or in which I have an interest, I hereby grant each member of the Company Group, and each\nmember of the Company Group shall have, a non-exclusive, royalty-free, irrevocable, perpetual, transferable worldwide\nlicense (with the right to sublicense) to make, have made, copy, modify, make derivative works of, use, sell, and\notherwise distribute such Prior Development as part of or in connection with such product or process.\n(b) Assignment of Developments. I agree that I will, without additional compensation, promptly make full\nwritten disclosure to the Company, and will hold in trust for the sole right and benefit of the Company all developments,\noriginal works of authorship, inventions, concepts, know-how, improvements, trade secrets, and similar proprietary\nrights, whether or not patentable or registrable under copyright or similar laws, which I may solely or jointly conceive\nor develop or reduce to practice, or have solely or jointly conceived or developed or reduced to practice, or have caused\nor may cause to be conceived or developed or reduced to practice, during the Assignment Period, whether or not during\nregular working hours, provided they either (i) relate at the time of conception, development or reduction to practice to\nthe business of any member of the Company Group, or the actual or anticipated research or development of any\nmember of the Company Group; (ii) result from or relate to any work performed for any member of the Company\nGroup; or (iii) are developed through the use of equipment, supplies, or facilities of any member of the Company\nGroup, or any Confidential Information, or in consultation with personnel of any member of the Company Group\n(collectively referred to as “Developments”). I further acknowledge that all Developments made by me (solely or jointly\nwith others) within the scope of and during the Assignment Period are “works made for hire” (to the greatest extent\npermitted by applicable law) for which I am, in part, compensated by my salary, unless regulated otherwise by law, but\nthat, in the event any such Development is deemed not to be a work made for hire, I hereby assign to the Company, or\nits designee, all my right, title, and interest throughout the world in and to any such Development. If any Developments\ncannot be assigned, I hereby grant to each member of the Company Group an exclusive, assignable, irrevocable,\nperpetual, worldwide, sublicenseable (through one or multiple tiers), royalty-free, unlimited license to use, make,\nmodify, sell, offer for sale, reproduce, distribute, create derivative works of, publicly perform, publicly display and\ndigitally perform and display such work in any media now known or hereafter known. Outside the scope of my service,\nwhether during or after my employment with any member of the Company Group, I agree not to (i) modify, adapt, alter,\ntranslate, or create derivative works from any such work of authorship or (ii) merge any such work of authorship with\nother Developments. To the extent rights related to paternity, integrity, disclosure and withdrawal (collectively, “Moral\nRights”) may not be assignable under applicable law and to the extent the\nA-3\nfollowing is allowed by the laws in the various countries where Moral Rights exist, I hereby irrevocably waive such\nMoral Rights and consent to any action of any member of the Company Group that would violate such Moral Rights in\nthe absence of such consent.\n(c) Maintenance of Records. I agree to keep and maintain adequate and current written records of all\nDevelopments made by me (solely or jointly with others) during the Assignment Period. The records may be in the\nform of notes, sketches, drawings, flow charts, electronic data or recordings, and any other format. The records will be\navailable to and remain the sole property of any member of the Company Group at all times. I agree not to remove such\nrecords from the Company’s place of business except as expressly permitted by Company Group policy, which may,\nfrom time to time, be revised at the sole election of such member of the Company Group for the purpose of furthering\nthe business of such member of the Company Group.\n(d) Intellectual Property Rights. I agree to assist the Company, or its designee, at the Company’s expense, in\nevery way to secure the rights of each member of the Company Group in the Developments and any copyrights, patents,\ntrademarks, service marks, database rights, domain names, mask work rights, moral rights, and other intellectual\nproperty rights relating thereto in any and all countries, including the disclosure to the Company of all pertinent\ninformation and data with respect thereto, the execution of all applications, specifications, oaths, assignments,\nrecordations, and all other instruments that the Company shall deem necessary in order to apply for, obtain, maintain,\nand transfer such rights and in order to assign and convey to each member of the Company Group the sole and\nexclusive right, title, and interest in and to such Developments, and any intellectual property and other proprietary rights\nrelating thereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so,\nany such instrument or papers shall continue after the Assignment Period until the expiration of the last such intellectual\nproperty right to expire in any country of the world; provided, however, the Company shall reimburse me for my\nreasonable expenses incurred in connection with carrying out the foregoing obligation. If the Company is unable\nbecause of my mental or physical incapacity or unavailability for any other reason to secure my signature to apply for or\nto pursue any application for any United States or foreign patents or copyright registrations covering Developments or\noriginal works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the\nCompany and its duly authorized officers and agents as my agent and attorney in fact to act for and in my behalf and\nstead to execute and file any such applications or records and to do all other lawfully permitted acts to further the\napplication for, prosecution, issuance, maintenance, and transfer of letters patent or registrations thereon with the same\nlegal force and effect as if originally executed by me. I hereby waive and irrevocably quitclaim to the Company any and\nall claims, of any nature whatsoever, that I now or hereafter have for past, present, or future infringement of any and all\nproprietary rights assigned to the Company.\nSection 3. Returning Company Group Documents.\nI agree that, at the time of termination of my employment with the Company for any reason, I will deliver to the\nCompany (and will not keep in my possession, recreate, or deliver to\nA-4\nanyone else) any and all Confidential Information and all other documents, materials, information, and property\ndeveloped by me pursuant to my employment or otherwise belonging to the Company. I agree further that any property\nsituated on the Company’s premises and owned by the Company (or any other member of the Company Group),\nincluding disks and other storage media, filing cabinets, and other work areas, is subject to inspection by personnel of\nany member of the Company Group at any time with or without notice.\nSection 4. Disclosure of Agreement.\nAs long as it remains in effect, I will disclose the existence of this Non-Interference Agreement to any\nprospective employer, partner, co-venturer, investor, or lender prior to entering into an employment, partnership, or other\nbusiness relationship with such person or entity.\nSection 5. Restrictions on Interfering.\n(a) Non-Competition. During the Employment Period and the Post-Termination Non-Compete Period, I shall\nnot, directly or indirectly, individually or on behalf of any person, company, enterprise, or entity, or as a sole proprietor,\npartner, stockholder, director, officer, principal, agent, or executive, or in any other capacity or relationship, engage in\nany Competitive Activities or own any securities (debt or equity) in any person, company, enterprise, or entity that is\nengaged in Competitive Activities, within the United States or any other jurisdiction in which the Company Group is\nactively engaged in business. Notwithstanding the foregoing, my ownership of securities of a public company engaged\nin Competitive Activities not in excess of three percent (3%) of any class of such securities shall not be considered a\nbreach of the covenants set forth in this Section.\n(b) Non-Interference. During the Employment Period and the Post-Termination Non-Interference Period, I shall\nnot, directly or indirectly for my own account or for the account of any other individual or entity, engage in Interfering\nActivities.\n(c) Definitions. For purposes of this Non-Interference Agreement :\n(i) “Business Relation” shall mean any current or prospective client, customer, licensee, or other\nbusiness relation of any member of the Company Group, or any such relation that was a client, customer, licensee,\nsupplier, or other business relation within the six (6) month period prior to the expiration of the Employment Period, in\neach case, to whom I provided services, or with whom I transacted business, or whose identity became known to me in\nconnection with my relationship with or employment by the Company Group.\n(ii) “Competitive Activities” shall mean consumer health care related businesses, including the business\nof acting as custodian or administrator for medical payment reimbursement accounts, including, but not limited to, health\nsavings accounts, flexible spending accounts and health reimbursement accounts or any business activities in which any\nmember of the Company Group is engaged (or has committed plans to engage) during the Employment Period.\nA-5\n(iii) “Interfering Activities” shall mean (A) encouraging, soliciting, or inducing, or in any manner\nattempting to encourage, solicit, or induce, any Person employed by, or providing consulting services to, any member of\nthe Company Group to terminate such Person’s employment or services (or in the case of a consultant, materially\nreducing such services) with any member of the Company Group; (B) hiring any individual who was employed by any\nmember of the Company Group within the six (6) month period prior to the date of such hiring; or (C) encouraging,\nsoliciting, or inducing, or in any manner attempting to encourage, solicit, or induce, any Business Relation to cease\ndoing business with or reduce the amount of business conducted with any member of the Company Group, or in any way\ninterfering with the relationship between any such Business Relation and any member of the Company Group.\n(iv) “Person” shall mean any individual, corporation, partnership, limited liability company, joint\nventure, association, joint‐stock company, trust (charitable or non-charitable), unincorporated organization, or other form\nof business entity.\n(v) “Post-Termination Non-Compete Period” shall mean the period commencing on the date of the\ntermination of the Employment Period for any reason and ending on the twelve (12) month anniversary of such date of\ntermination.\n(vi) “Post-Termination Non-Interference Period” shall mean the period commencing on the date of the\ntermination of the Employment Period for any reason and ending on the twenty-four (24) month anniversary of such date\nof termination.\n(d) Non-Disparagement. I agree that during the Employment Period, and at all times thereafter, I will not make\nany disparaging or defamatory comments regarding any member of the Company Group or its respective current or\nformer directors, officers, employees or shareholders in any respect or make any comments concerning any aspect of\nmy relationship with any member of the Company Group or any conduct or events which precipitated any termination\nof my employment from any member of the Company Group. However, my obligations under this subparagraph (d)\nshall not apply to disclosures required by applicable law, regulation, or order of a court or governmental agency.\nSection 6. Reasonableness of Restrictions.\nI acknowledge and recognize the highly competitive nature of the Company’s business, that access to\nConfidential Information renders me special and unique within the Company’s industry, and that I will have the\nopportunity to develop substantial relationships with existing and prospective clients, accounts, customers, consultants,\ncontractors, investors, and strategic partners of any member of the Company Group during the course of and as a result\nof my employment with the Company. In light of the foregoing, I recognize and acknowledge that the restrictions and\nlimitations set forth in this Non-Interference Agreement are reasonable and valid in geographical and temporal scope and\nin all other respects and are essential to protect the value of the business and assets of any member of the Company\nGroup. I acknowledge further that the restrictions and limitations set forth in this Non-Interference Agreement will not\nmaterially interfere with my ability to earn a living following the termination of my employment with the\nA-6\nCompany and that my ability to earn a livelihood without violating such restrictions is a material condition to my\nemployment with the Company.\nSection 7. Independence; Severability; Blue Pencil.\nEach of the rights enumerated in this Non-Interference Agreement shall be independent of the others and shall be\nin addition to and not in lieu of any other rights and remedies available to any member of the Company Group at law or\nin equity. If any of the provisions of this Non-Interference Agreement or any part of any of them is hereafter construed or\nadjudicated to be invalid or unenforceable, the same shall not affect the remainder of this Non-Interference Agreement,\nwhich shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are held\nto be invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, I agree\nthat the court making such determination shall have the power to reduce the duration, scope, and/or area of such\nprovision to the maximum and/or broadest duration, scope, and/or area permissible by law, and in its reduced form said\nprovision shall then be enforceable.\nSection 8. Injunctive Relief.\nI expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in\nthis Non-Interference Agreement may result in substantial, continuing, and irreparable injury to the members of the\nCompany Group. Therefore, I hereby agree that, in addition to any other remedy that may be available to the Company,\nany member of the Company Group shall be entitled to injunctive relief, specific performance, or other equitable relief\nby a court of appropriate jurisdiction in the event of any breach or threatened breach of the terms of this Non-\nInterference Agreement without the necessity of proving irreparable harm or injury as a result of such breach or\nthreatened breach. Notwithstanding any other provision to the contrary, I acknowledge and agree that the Post-\nTermination Non-Compete Period, or Post-Termination Non-Interference Period, as applicable, shall be tolled during any\nperiod of violation of any of the covenants in Section 5 hereof and during any other period required for litigation during\nwhich the Company or any other member of the Company Group seeks to enforce such covenants against me if it is\nultimately determined that I was in breach of such covenants.\nSection 9. Cooperation.\nI agree that, following any termination of my employment, I will continue to provide reasonable cooperation to\nthe Company and/or any other member of the Company Group and its or their respective counsel in connection with any\ninvestigation, administrative proceeding, or litigation relating to any matter that occurred during my employment in\nwhich I was involved or of which I have knowledge. As a condition of such cooperation, the Company shall reimburse\nme for reasonable out-of-pocket expenses incurred at the request of the Company with respect to my compliance with\nthis paragraph. I also agree that, in the event that I am subpoenaed by any person or entity (including, but not limited to,\nany government agency) to give testimony or provide documents (in a deposition, court proceeding, or otherwise) that in\nany way relates to my employment by the Company and/or any other member of the Company Group, I will give prompt\nnotice of such request to the Company and will make no disclosure until the Company\nA-7\nand/or the other member of the Company Group has had a reasonable opportunity to contest the right of the requesting\nperson or entity to such disclosure.\nSection 10. General Provisions.\n(a) Governing Law, Venue and Jurisdiction. EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE\nVALIDITY, INTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS NON-INTERFERENCE\nAGREEMENT IS GOVERNED BY AND IS TO BE CONSTRUED UNDER THE LAWS OF THE STATE OF\nDELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE, WITHOUT\nREGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING TO\nTHIS RELEASE OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN THE UNITED\nSTATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, TO THE EXTENT FEDERAL JURISDICTION\nEXISTS, AND IN ANY COURT SITTING IN SALT LAKE CITY, UTAH, BUT ONLY IN THE EVENT FEDERAL\nJURISDICTION DOES NOT EXIST, AND ANY APPLICABLE APPELLATE COURTS. FURTHER, I HEREBY\nWAIVE ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT, ACTION, OR PROCEEDING\nUNDER OR IN CONNECTION WITH THIS NON-INTERFERENCE AGREEMENT.\n(b) Entire Agreement. This Non-Interference Agreement sets forth the entire agreement and understanding\nbetween the Company and me relating to the subject matter herein and merges all prior discussions between us. No\nmodification or amendment to this Non-Interference Agreement, nor any waiver of any rights under this Non-\nInterference Agreement, will be effective unless in writing signed by the party to be charged. Any subsequent change or\nchanges in my duties, obligations, rights, or compensation will not affect the validity or scope of this Non-Interference\nAgreement.\n(c) No Right of Continued Employment. I acknowledge and agree that nothing contained herein shall be\nconstrued as granting me any right to continued employment by the Company, and the right of the Company to\nterminate my employment at any time and for no reason or any reason, with or without cause, is specifically reserved.\n(d) Successors and Assigns. This Non-Interference Agreement will be binding upon my heirs, executors,\nadministrators, and other legal representatives and will be for the benefit of the Company, its successors, and its assigns.\nI expressly acknowledge and agree that this Non-Interference Agreement may be assigned by the Company without my\nconsent to any other member of the Company Group as well as any purchaser of all or substantially all of the assets or\nstock of the Company or of any business or division of the Company for which I provide services, whether by purchase,\nmerger, or other similar corporate transaction, provided that the license granted pursuant to Section 2(a) may be\nassigned to any third party by the Company without my consent.\n(e) Survival. The provisions of this Non-Interference Agreement shall survive the termination of my\nemployment with the Company and/or the assignment of this Non-Interference Agreement by the Company to any\nsuccessor in interest or other assignee.\nA-8\n***\n[Signature to appear on the following page.]\nA-9\nI, Edward R. Bloomberg, have executed this Confidentiality, Non-Interference, and Invention Assignment\nAgreement on the date set forth below:\nDate:\n(Signature)\n(Type/Print Name)\n[Signature Page to Edward R. Bloomberg Non-Interference Agreement]	EX-10.2 3 exhibit102-confidentiality.htm EXHIBIT 10.2\nExhibit A\nCONFIDENTIALITY, NON-INTERFERENCE, AND INVENTION ASSIGNMENT AGREEMENT\nAs a condition of my becoming employed by, or continuing employment with, HealthEquity, Inc., a Delaware\ncorporation (the “Company”), and in consideration of my employment with the Company and my receipt of the\ncompensation now and hereafter paid to me by the Company, I agree to the following terms set forth in this\nConfidentiality, Non-Interference, and Invention Assignment Agreement (this “Non-Interference Agreement”):\nSection 1. Confidential Information.\n(a) Company Group Information. I acknowledge that, during the course of my employment, I will have access\nto information about the Company and its direct and indirect subsidiaries and affiliates (collectively, the “Company\nGroup”) and that my employment with the Company shall bring me into close contact with confidential and proprietary\ninformation of any member of the Company Group. In recognition of the foregoing, I agree, at all times during the term\nof my employment with the Company and thereafter, to hold in confidence, and not to use, except for the benefit of any\nmember of the Company Group, or to disclose to any person, firm, corporation, or other entity without written\nauthorization of the Company, any Confidential Information that I obtain or create. I further agree not to make copies of\nsuch Confidential Information except as authorized by the Company. I understand that “Confidential Information”\nmeans information that any member of the Company Group has developed, acquired, created, compiled, discovered, or\nowned or will develop, acquire, create, compile, discover, or own, that has value in or to the business of any member of\nthe Company Group that is not generally known and that the Company wishes to maintain as confidential. I understand\nthat Confidential Information includes, but is not limited to, any and all non-public information that relates to the actual\nor anticipated business and/or products, research, or development of the Company, or to the Company’s technical data,\ntrade secrets, or know-how, including, but not limited to, research, product plans, or other information regarding the\nCompany’s products or services and markets, customer lists, and customers (including, but not limited to, customers of\nthe Company on whom I called or with whom I may become acquainted during the term of my employment), software,\ndevelopments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration\ninformation, marketing, finances, and other business information disclosed by the Company either directly or indirectly\nin writing, orally, or by drawings or inspection of premises, parts, equipment, or other Company property.\nNotwithstanding the foregoing, Confidential Information shall not include (i) any of the foregoing items that have\nbecome publicly and widely known through no unauthorized disclosure by me or others who were under confidentiality\nobligations as to the item or items involved, or (ii) any information that I am required to disclose to, or by, any\ngovernmental or judicial authority; provided, however, that in such event I will give the Company prompt written notice\nthereof so that any member of the Company Group may seek an appropriate protective order and/or waive in writing\ncompliance with the confidentiality provisions of this Non-Interference Agreement.\nA-1\n(b) Former Employer Information. I represent that my performance of all of the terms of this Non-Interference\nAgreement as an employee of the Company has not breached and will not breach any agreement to keep in confidence\nproprietary information, knowledge, or data acquired by me in confidence or trust prior or subsequent to the\ncommencement of my employment with the Company, and I will not disclose to any member of the Company Group, or\ninduce any member of the Company Group to use, any developments, or confidential or proprietary information or\nmaterial I may have obtained in connection with employment with any prior employer in violation of a confidentiality\nagreement, nondisclosure agreement, or similar agreement with such prior employer.\n(c) Third Party Information. I understand that the Company Group has received and in the future may receive\nfrom third parties confidential or proprietary information (“Third Party Information™) subject to a duty on the Company\nGroup’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. In\nrecognition of the foregoing, I agree, at all times during the period of my employment with the Company (the\n“Employment Period”) and thereafter, to hold in confidence and will not disclose to anyone (other than Company Group\npersonnel who need to know such information in connection with their work for the Company Group), and not to use,\nexcept for the benefit of the Company Group, Third Party Information without the express prior written consent of an\nofficer of the Company and otherwise treat Third Party Information as Confidential Information.\n(d) Whistleblower; Defend Trade Secrets Act Disclosure.\n(i) In addition, I understand that nothing in this Agreement shall be construed to prohibit me from\nreporting possible violations of law or regulation to any governmental agency or regulatory body or making other\ndisclosures that are protected under any law or regulation, or from filing a charge with or participating in any\ninvestigation or proceeding conducted by any governmental agency or regulatory body.\n(i) I understand that the Defend Trade Secrets Act provides that I may not be held criminally or civilly\nliable under any Federal or state trade secret law for the disclosure of a trade secret that is made in confidence to a\nFederal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of\nreporting or investigating a suspected violation of law; or that is made in a complaint or other document filed in a lawsuit\nor other proceeding, if such filing is made under seal. In the event that I file a lawsuit for retaliation by any member of\nthe Company Group for reporting a suspected violation of law, I may disclose the trade secret to my attorney and use the\ntrade secret information in the court proceeding, if I file any document containing the trade secret under seal and do not\ndisclose the trade secret, except pursuant to court order.\nSection 2. Developments.\n \n(a) Developments Retained and Licensed. I have attached hereto, as Schedule A, a list describing with\nparticularity all developments, original works of authorship, improvements, and trade secrets that I can demonstrate\nwere created or owned by me prior to the\ncommencement of my employment (collectively referred to as “Prior Developments™), which belong solely to me or\nbelong to me jointly with another, that relate in any way to any of the actual or proposed businesses, products, or\nresearch and development of any member of the Company Group, and that are not assigned to the Company hereunder,\nor if no such list is attached, I represent that there are no such Prior Developments. If, during any period during which I\nperform or performed services for any member of the Company Group both before or after the date hereof (the\n“Assignment Period”), whether as an officer, employee, director, independent contractor, consultant, or agent, or in any\nother capacity, I incorporate (or have incorporated) into any member of the Company Group’s product or process a Prior\nDevelopment owned by me or in which I have an interest, I hereby grant each member of the Company Group, and each\nmember of the Company Group shall have, a non-exclusive, royalty-free, irrevocable, perpetual, transferable worldwide\nlicense (with the right to sublicense) to make, have made, copy, modify, make derivative works of, use, sell, and\notherwise distribute such Prior Development as part of or in connection with such product or process.\n(b) Assignment of Developments. I agree that I will, without additional compensation, promptly make full\nwritten disclosure to the Company, and will hold in trust for the sole right and benefit of the Company all developments,\noriginal works of authorship, inventions, concepts, know-how, improvements, trade secrets, and similar proprietary\nrights, whether or not patentable or registrable under copyright or similar laws, which I may solely or jointly conceive\nor develop or reduce to practice, or have solely or jointly conceived or developed or reduced to practice, or have caused\nor may cause to be conceived or developed or reduced to practice, during the Assignment Period, whether or not during\nregular working hours, provided they either (i) relate at the time of conception, development or reduction to practice to\nthe business of any member of the Company Group, or the actual or anticipated research or development of any\nmember of the Company Group; (ii) result from or relate to any work performed for any member of the Company\nGroup; or (iii) are developed through the use of equipment, supplies, or facilities of any member of the Company\nGroup, or any Confidential Information, or in consultation with personnel of any member of the Company Group\n(collectively referred to as “Developments™). I further acknowledge that all Developments made by me (solely or jointly\nwith others) within the scope of and during the Assignment Period are “works made for hire” (to the greatest extent\npermitted by applicable law) for which I am, in part, compensated by my salary, unless regulated otherwise by law, but\nthat, in the event any such Development is deemed not to be a work made for hire, I hereby assign to the Company, or\nits designee, all my right, title, and interest throughout the world in and to any such Development. If any Developments\ncannot be assigned, I hereby grant to each member of the Company Group an exclusive, assignable, irrevocable,\nperpetual, worldwide, sublicenseable (through one or multiple tiers), royalty-free, unlimited license to use, make,\nmodify, sell, offer for sale, reproduce, distribute, create derivative works of, publicly perform, publicly display and\ndigitally perform and display such work in any media now known or hereafter known. Outside the scope of my service,\nwhether during or after my employment with any member of the Company Group, I agree not to (i) modify, adapt, alter,\ntranslate, or create derivative works from any such work of authorship or (ii) merge any such work of authorship with\nother Developments. To the extent rights related to paternity, integrity, disclosure and withdrawal (collectively, “Moral\nRights”) may not be assignable under applicable law and to the extent the\n \n \n \nA-3\nfollowing is allowed by the laws in the various countries where Moral Rights exist, I hereby irrevocably waive such\nMoral Rights and consent to any action of any member of the Company Group that would violate such Moral Rights in\nthe absence of such consent.\n(c) Maintenance of Records. I agree to keep and maintain adequate and current written records of all\nDevelopments made by me (solely or jointly with others) during the Assignment Period. The records may be in the\nform of notes, sketches, drawings, flow charts, electronic data or recordings, and any other format. The records will be\navailable to and remain the sole property of any member of the Company Group at all times. I agree not to remove such\nrecords from the Company’s place of business except as expressly permitted by Company Group policy, which may,\nfrom time to time, be revised at the sole election of such member of the Company Group for the purpose of furthering\nthe business of such member of the Company Group.\n(d) Intellectual Property Rights. I agree to assist the Company, or its designee, at the Company’s expense, in\nevery way to secure the rights of each member of the Company Group in the Developments and any copyrights, patents,\ntrademarks, service marks, database rights, domain names, mask work rights, moral rights, and other intellectual\nproperty rights relating thereto in any and all countries, including the disclosure to the Company of all pertinent\ninformation and data with respect thereto, the execution of all applications, specifications, oaths, assignments,\nrecordations, and all other instruments that the Company shall deem necessary in order to apply for, obtain, maintain,\nand transfer such rights and in order to assign and convey to each member of the Company Group the sole and\nexclusive right, title, and interest in and to such Developments, and any intellectual property and other proprietary rights\nrelating thereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so,\nany such instrument or papers shall continue after the Assignment Period until the expiration of the last such intellectual\nproperty right to expire in any country of the world; provided, however, the Company shall reimburse me for my\nreasonable expenses incurred in connection with carrying out the foregoing obligation. If the Company is unable\nbecause of my mental or physical incapacity or unavailability for any other reason to secure my signature to apply for or\nto pursue any application for any United States or foreign patents or copyright registrations covering Developments or\noriginal works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the\nCompany and its duly authorized officers and agents as my agent and attorney in fact to act for and in my behalf and\nstead to execute and file any such applications or records and to do all other lawfully permitted acts to further the\napplication for, prosecution, issuance, maintenance, and transfer of letters patent or registrations thereon with the same\nlegal force and effect as if originally executed by me. I hereby waive and irrevocably quitclaim to the Company any and\nall claims, of any nature whatsoever, that I now or hereafter have for past, present, or future infringement of any and all\nproprietary rights assigned to the Company.\nSection 3. Returning Company Group Documents.\nI agree that, at the time of termination of my employment with the Company for any reason, I will deliver to the\nCompany (and will not keep in my possession, recreate, or deliver to\nA-4\nanyone else) any and all Confidential Information and all other documents, materials, information, and property\ndeveloped by me pursuant to my employment or otherwise belonging to the Company. I agree further that any property\nsituated on the Company’s premises and owned by the Company (or any other member of the Company Group),\nincluding disks and other storage media, filing cabinets, and other work areas, is subject to inspection by personnel of\nany member of the Company Group at any time with or without notice.\nSection 4. Disclosure of Agreement.\nAs long as it remains in effect, I will disclose the existence of this Non-Interference Agreement to any\nprospective employer, partner, co-venturer, investor, or lender prior to entering into an employment, partnership, or other\nbusiness relationship with such person or entity.\nSection 5. Restrictions on Interfering.\n(@) Non-Competition. During the Employment Period and the Post-Termination Non-Compete Period, I shall\nnot, directly or indirectly, individually or on behalf of any person, company, enterprise, or entity, or as a sole proprietor,\npartner, stockholder, director, officer, principal, agent, or executive, or in any other capacity or relationship, engage in\nany Competitive Activities or own any securities (debt or equity) in any person, company, enterprise, or entity that is\nengaged in Competitive Activities, within the United States or any other jurisdiction in which the Company Group is\nactively engaged in business. Notwithstanding the foregoing, my ownership of securities of a public company engaged\nin Competitive Activities not in excess of three percent (3%) of any class of such securities shall not be considered a\nbreach of the covenants set forth in this Section.\n \n(b) Non-Interference. During the Employment Period and the Post-Termination Non-Interference Period, I shall\nnot, directly or indirectly for my own account or for the account of any other individual or entity, engage in Interfering\nActivities.\n(c) Definitions. For purposes of this Non-Interference Agreement :\n(i) “Business Relation” shall mean any current or prospective client, customer, licensee, or other\nbusiness relation of any member of the Company Group, or any such relation that was a client, customer, licensee,\nsupplier, or other business relation within the six (6) month period prior to the expiration of the Employment Period, in\neach case, to whom I provided services, or with whom I transacted business, or whose identity became known to me in\nconnection with my relationship with or employment by the Company Group.\n(i) “Competitive Activities” shall mean consumer health care related businesses, including the business\nof acting as custodian or administrator for medical payment reimbursement accounts, including, but not limited to, health\nsavings accounts, flexible spending accounts and health reimbursement accounts or any business activities in which any\nmember of the Company Group is engaged (or has committed plans to engage) during the Employment Period.\nA-5\n(iii) “Interfering Activities” shall mean (A) encouraging, soliciting, or inducing, or in any manner\nattempting to encourage, solicit, or induce, any Person employed by, or providing consulting services to, any member of\nthe Company Group to terminate such Person’s employment or services (or in the case of a consultant, materially\nreducing such services) with any member of the Company Group; (B) hiring any individual who was employed by any\nmember of the Company Group within the six (6) month period prior to the date of such hiring; or (C) encouraging,\nsoliciting, or inducing, or in any manner attempting to encourage, solicit, or induce, any Business Relation to cease\ndoing business with or reduce the amount of business conducted with any member of the Company Group, or in any way\ninterfering with the relationship between any such Business Relation and any member of the Company Group.\n(iv) “Person” shall mean any individual, corporation, partnership, limited liability company, joint\nventure, association, joint-stock company, trust (charitable or non-charitable), unincorporated organization, or other form\nof business entity.\n \n(v) “Post-Termination Non-Compete Period” shall mean the period commencing on the date of the\ntermination of the Employment Period for any reason and ending on the twelve (12) month anniversary of such date of\ntermination.\n(vi) “Post-Termination Non-Interference Period” shall mean the period commencing on the date of the\ntermination of the Employment Period for any reason and ending on the twenty-four (24) month anniversary of such date\nof termination.\n(d) Non-Disparagement. I agree that during the Employment Period, and at all times thereafter, I will not make\nany disparaging or defamatory comments regarding any member of the Company Group or its respective current or\nformer directors, officers, employees or shareholders in any respect or make any comments concerning any aspect of\nmy relationship with any member of the Company Group or any conduct or events which precipitated any termination\nof my employment from any member of the Company Group. However, my obligations under this subparagraph (d)\nshall not apply to disclosures required by applicable law, regulation, or order of a court or governmental agency.\nSection 6. Reasonableness of Restrictions.\nI acknowledge and recognize the highly competitive nature of the Company’s business, that access to\nConfidential Information renders me special and unique within the Company’s industry, and that I will have the\nopportunity to develop substantial relationships with existing and prospective clients, accounts, customers, consultants,\ncontractors, investors, and strategic partners of any member of the Company Group during the course of and as a result\nof my employment with the Company. In light of the foregoing, I recognize and acknowledge that the restrictions and\nlimitations set forth in this Non-Interference Agreement are reasonable and valid in geographical and temporal scope and\nin all other respects and are essential to protect the value of the business and assets of any member of the Company\nGroup. I acknowledge further that the restrictions and limitations set forth in this Non-Interference Agreement will not\nmaterially interfere with my ability to earn a living following the termination of my employment with the\nA-6\nCompany and that my ability to earn a livelihood without violating such restrictions is a material condition to my\nemployment with the Company.\nSection 7. Independence; Severability; Blue Pencil.\nEach of the rights enumerated in this Non-Interference Agreement shall be independent of the others and shall be\nin addition to and not in lieu of any other rights and remedies available to any member of the Company Group at law or\nin equity. If any of the provisions of this Non-Interference Agreement or any part of any of them is hereafter construed or\nadjudicated to be invalid or unenforceable, the same shall not affect the remainder of this Non-Interference Agreement,\nwhich shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are held\nto be invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, I agree\nthat the court making such determination shall have the power to reduce the duration, scope, and/or area of such\nprovision to the maximum and/or broadest duration, scope, and/or area permissible by law, and in its reduced form said\nprovision shall then be enforceable.\nSection 8. Injunctive Relief.\nI expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in\nthis Non-Interference Agreement may result in substantial, continuing, and irreparable injury to the members of the\nCompany Group. Therefore, I hereby agree that, in addition to any other remedy that may be available to the Company,\nany member of the Company Group shall be entitled to injunctive relief, specific performance, or other equitable relief\nby a court of appropriate jurisdiction in the event of any breach or threatened breach of the terms of this Non-\nInterference Agreement without the necessity of proving irreparable harm or injury as a result of such breach or\nthreatened breach. Notwithstanding any other provision to the contrary, I acknowledge and agree that the Post-\nTermination Non-Compete Period, or Post-Termination Non-Interference Period, as applicable, shall be tolled during any\nperiod of violation of any of the covenants in Section 5 hereof and during any other period required for litigation during\nwhich the Company or any other member of the Company Group seeks to enforce such covenants against me if it is\nultimately determined that I was in breach of such covenants.\nSection 9. Cooperation.\nI agree that, following any termination of my employment, I will continue to provide reasonable cooperation to\nthe Company and/or any other member of the Company Group and its or their respective counsel in connection with any\ninvestigation, administrative proceeding, or litigation relating to any matter that occurred during my employment in\nwhich I was involved or of which I have knowledge. As a condition of such cooperation, the Company shall reimburse\nme for reasonable out-of-pocket expenses incurred at the request of the Company with respect to my compliance with\nthis paragraph. I also agree that, in the event that I am subpoenaed by any person or entity (including, but not limited to,\nany government agency) to give testimony or provide documents (in a deposition, court proceeding, or otherwise) that in\nany way relates to my employment by the Company and/or any other member of the Company Group, I will give prompt\nnotice of such request to the Company and will make no disclosure until the Company\nA-7\nand/or the other member of the Company Group has had a reasonable opportunity to contest the right of the requesting\nperson or entity to such disclosure.\nSection 10. General Provisions.\n(@) Governing Law, Venue and Jurisdiction. EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE\nVALIDITY, INTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS NON-INTERFERENCE\nAGREEMENT IS GOVERNED BY AND IS TO BE CONSTRUED UNDER THE LAWS OF THE STATE OF\nDELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE, WITHOUT\nREGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING TO\nTHIS RELEASE OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN THE UNITED\nSTATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, TO THE EXTENT FEDERAL JURISDICTION\nEXISTS, AND IN ANY COURT SITTING IN SALT LAKE CITY, UTAH, BUT ONLY IN THE EVENT FEDERAL\nJURISDICTION DOES NOT EXIST, AND ANY APPLICABLE APPELLATE COURTS. FURTHER, I HEREBY\nWAIVE ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT, ACTION, OR PROCEEDING\nUNDER OR IN CONNECTION WITH THIS NON-INTERFERENCE AGREEMENT.\n \n(b) Entire Agreement. This Non-Interference Agreement sets forth the entire agreement and understanding\nbetween the Company and me relating to the subject matter herein and merges all prior discussions between us. No\nmodification or amendment to this Non-Interference Agreement, nor any waiver of any rights under this Non-\nInterference Agreement, will be effective unless in writing signed by the party to be charged. Any subsequent change or\nchanges in my duties, obligations, rights, or compensation will not affect the validity or scope of this Non-Interference\nAgreement.\n \n(c) No Right of Continued Employment. I acknowledge and agree that nothing contained herein shall be\nconstrued as granting me any right to continued employment by the Company, and the right of the Company to\nterminate my employment at any time and for no reason or any reason, with or without cause, is specifically reserved.\n(d) Successors and Assigns. This Non-Interference Agreement will be binding upon my heirs, executors,\nadministrators, and other legal representatives and will be for the benefit of the Company, its successors, and its assigns.\nI expressly acknowledge and agree that this Non-Interference Agreement may be assigned by the Company without my\nconsent to any other member of the Company Group as well as any purchaser of all or substantially all of the assets or\nstock of the Company or of any business or division of the Company for which I provide services, whether by purchase,\nmerger, or other similar corporate transaction, provided that the license granted pursuant to Section 2(a) may be\nassigned to any third party by the Company without my consent.\n(e) Survival. The provisions of this Non-Interference Agreement shall survive the termination of my\nemployment with the Company and/or the assignment of this Non-Interference Agreement by the Company to any\nsuccessor in interest or other assignee.\n[Signature to appear on the following page.]\nA-9\nI, Edward R. Bloomberg, have executed this Confidentiality, Non-Interference, and Invention Assignment\nAgreement on the date set forth below:\nDate:\n(Signature)\n(Type/Print Name)\n[Signature Page to Edward R. Bloomberg Non-Interference Agreement]	EX-10.2 3 exhibit102-confidentiality.htm EXHIBIT 10.2\nExhibit A\nCONFIDENTIALITY NON-INTERFERENCE, AND INVENTION ASSIGNMENT AGREEMENT\nAs a condition of my becoming employed by, or continuing employment with, HealthEquity, Inc., a Delaware\ncorporation (the "Company."), and in consideration of my employment with the Company and my receipt of the\ncompensation now and hereafter paid to me by the Company, I agree to the following terms set forth in this\nConfidentiality, Non-Interference, and Invention Assignment Agreement (this "Non-Interference Agreement"):\nSection 1. Confidential Information.\n(a) Company Group Information. I acknowledge that, during the course of my employment, I will have access\nto information about the Company and its direct and indirect subsidiaries and affiliates (collectively, the "Company\nGroup") and that my employment with the Company shall bring me into close contact with confidential and proprietary\ninformation of any member of the Company Group. In recognition of the foregoing, I agree, at all times during the term\nof my employment with the Company and thereafter, to hold in confidence, and not to use, except for the benefit of any\nmember of the Company Group, or to disclose to any person, firm, corporation, or other entity without written\nauthorization of the Company, any Confidential Information that I obtain or create. I further agree not to make copies of\nsuch Confidential Information except as authorized by the Company. I understand that "Confidential Information'\nmeans information that any member of the Company Group has developed, acquired, created, compiled, discovered, or\nowned or will develop, acquire, create, compile, discover, or own, that has value in or to the business of any member of\nthe Company Group that is not generally known and that the Company wishes to maintain as confidential. I understand\nthat Confidential Information includes, but is not limited to, any and all non-public information that relates to the actual\nor anticipated business and/or products, research, or development of the Company, or to the Company's technical data,\ntrade secrets, or know-how, including but not limited to, research, product plans, or other information regarding the\nCompany's products or services and markets, customer lists, and customers (including, but not limited to, customers of\nthe Company on whom I called or with whom I may become acquainted during the term of my employment), software,\ndevelopments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration\ninformation, marketing, finances, and other business information disclosed by the Company either directly or indirectly\nin writing, orally, or by drawings or inspection of premises, parts, equipment, or other Company property.\nNotwithstanding the foregoing, Confidential Information shall not include (i) any of the foregoing items that have\nbecome publicly and widely known through no unauthorized disclosure by me or others who were under confidentiality\nobligations as to the item or items involved, or (ii) any information that I am required to disclose to, or by, any\ngovernmental or judicial authority; provided, however, that in such event I will give the Company prompt written notice\nthereof so that any member of the Company Group may seek an appropriate protective order and/or waive in writing\ncompliance with the confidentiality provisions of this Non-Interference Agreement.\nA-1\n(b) Formen Employer Information. I represent that my performance of all of the terms of this Non-Interference\nAgreement as an employee of the Company has not breached and will not breach any agreement to keep in confidence\nproprietary information, knowledge, or data acquired by me in confidence or trust prior or subsequent to the\ncommencement of my employment with the Company, and I will not disclose to any member of the Company Group, or\ninduce any member of the Company Group to use, any developments, or confidential or proprietary information or\nmaterial I may have obtained in connection with employment with any prior employer in violation of a confidentiality\nagreement, nondisclosure agreement, or similar agreement with such prior employer.\n(c) Third Party. Information. I understand that the Company Group has received and in the future may receive\nfrom third parties confidential or proprietary information ("Third Party Information") subject to a duty on the Company\nGroup's part to maintain the confidentiality of such information and to use it only for certain limited purposes. In\nrecognition of the foregoing, I agree, at all times during the period of my employment with the Company (the\n"Employment Period") and thereafter, to hold in confidence and will not disclose to anyone (other than Company Group\npersonnel who need to know such information in connection with their work for the Company Group), and not to use,\nexcept for the benefit of the Company Group, Third Party Information without the express prior written consent of an\nofficer of the Company and otherwise treat Third Party Information as Confidential Information.\n(d) Whistleblower; Defend Trade Secrets Act Disclosure.\n(i) In addition, I understand that nothing in this Agreement shall be construed to prohibit me from\nreporting possible violations of law or regulation to any governmental agency or regulatory body or making other\ndisclosures that are protected under any law or regulation, or from filing a charge with or participating in any\ninvestigation or proceeding conducted by any governmental agency or regulatory body.\n(ii) I understand that the Defend Trade Secrets Act provides that I may not be held criminally or civilly\nliable under any Federal or state trade secret law for the disclosure of a trade secret that is made in confidence to a\nFederal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of\nreporting or investigating a suspected violation of law; or that is made in a complaint or other document filed in a lawsuit\nor other proceeding, if such filing is made under seal. In the event that I file a lawsuit for retaliation by any member\nof\nthe Company Group for reporting a suspected violation of law, I may disclose the trade secret to my attorney and use the\ntrade secret information in the court proceeding, if I file any document containing the trade secret under seal and do not\ndisclose the trade secret, except pursuant to court order.\nSection 2. Developments.\n(a) Developments Retained and Licensed. I have attached hereto, as Schedule A, a list describing with\nparticularity all developments, original works of authorship, improvements, and trade secrets that I can demonstrate\nwere created or owned by me prior to the\nA-2\ncommencement of my employment (collectively referred to as "Prion Developments"), which belong solely to me or\nbelong to me jointly with another, that relate in any way to any of the actual or proposed businesses, products, or\nresearch and development of any member of the Company Group, and that are not assigned to the Company hereunder,\nor if no such list is attached, I represent that there are no such Prior Developments. If, during any period during which I\nperform or performed services for any member of the Company Group both before or after the date hereof (the\n"Assignment Period"), whether as an officer, employee, director, independent contractor, consultant, or agent, or in any\nother capacity, I incorporate (or have incorporated) into any member of the Company Group's product or process a Prior\nDevelopment owned by me or in which I have an interest, I hereby grant each member of the Company Group, and each\nmember of the Company Group shall have, a non-exclusive, royalty-free, irrevocable, perpetual, transferable worldwide\nlicense (with the right to sublicense) to make, have made, copy, modify, make derivative works of, use, sell, and\notherwise distribute such Prior Development as part of or in connection with such product or process.\n(b) Assignment of Developments. I agree that I will, without additional compensation, promptly make full\nwritten disclosure to the Company, and will hold in trust for the sole right and benefit of the Company all developments,\noriginal works of authorship, inventions, concepts, know-how, improvements, trade secrets, and similar proprietary\nrights, whether or not patentable or registrable under copyright or similar laws, which I may solely or jointly conceive\nor develop or reduce to practice, or have solely or jointly conceived or developed or reduced to practice, or have caused\nor may cause to be conceived or developed or reduced to practice, during the Assignment Period, whether or not during\nregular working hours, provided they either (i) relate at the time of conception, development or reduction to practice to\nthe business of any member of the Company Group, or the actual or anticipated research or development of any\nmember of the Company Group; (ii) result from or relate to any work performed for any member of the Company\nGroup; or (iii) are developed through the use of equipment, supplies, or facilities of any member of the Company\nGroup, or any Confidential Information, or in consultation with personnel of any member of the Company Group\n(collectively referred to as "Developments"). I further acknowledge that all Developments made by me (solely or jointly\nwith others) within the scope of and during the Assignment Period are "works made for hire" (to the greatest extent\npermitted by applicable law) for which I am, in part, compensated by my salary, unless regulated otherwise by law, but\nthat, in the event any such Development is deemed not to be a work made for hire, I hereby assign to the Company, or\nits designee, all my right, title, and interest throughout the world in and to any such Development. If any Developments\ncannot be assigned, I hereby grant to each member of the Company Group an exclusive, assignable, irrevocable,\nperpetual, worldwide, sublicenseable (through one or multiple tiers), royalty-free, unlimited license to use, make,\nmodify, sell, offer for sale, reproduce, distribute, create derivative works of, publicly perform, publicly display and\ndigitally perform and display such work in any media now known or hereafter known. Outside the scope of my service,\nwhether during or after my employment with any member of the Company Group, I agree not to (i) modify, adapt, alter,\ntranslate, or create derivative works from any such work of authorship or (ii) merge any such work of authorship with\nother Developments. To the extent rights related to paternity, integrity, disclosure and withdrawal (collectively, "Moral\nRights") may not be assignable under applicable law and to the extent the\nA-3\nfollowing is allowed by the laws in the various countries where Moral Rights exist, I hereby irrevocably waive such\nMoral Rights and consent to any action of any member of the Company Group that would violate such Moral Rights in\nthe absence of such consent.\n(c) Maintenance of Records. I agree to keep and maintain adequate and current written records of all\nDevelopments made by me (solely or jointly with others) during the Assignment Period. The records may be in the\nform of notes, sketches, drawings, flow charts, electronic data or recordings, and any other format. The records will be\navailable to and remain the sole property of any member of the Company Group at all times. I agree not to remove such\nrecords from the Company's place of business except as expressly permitted by Company Group policy, which may,\nfrom time to time, be revised at the sole election of such member of the Company Group for the purpose of furthering\nthe business of such member of the Company Group.\n(d) Intellectual Property. Rights. I agree to assist the Company, or its designee, at the Company's expense, in\nevery way to secure the rights of each member of the Company Group in the Developments and any copyrights, patents,\ntrademarks, service marks, database rights, domain names, mask work rights, moral rights, and other intellectual\nproperty rights relating thereto in any and all countries, including the disclosure to the Company of all pertinent\ninformation and data with respect thereto, the execution of all applications, specifications, oaths, assignments,\nrecordations, and all other instruments that the Company shall deem necessary in order to apply for, obtain, maintain,\nand transfer such rights and in order to assign and convey to each member of the Company Group the sole and\nexclusive right, title, and interest in and to such Developments, and any intellectual property and other proprietary rights\nrelating thereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so,\nany such instrument or papers shall continue after the Assignment Period until the expiration of the last such intellectual\nproperty right to expire in any country of the world; provided, however, the Company shall reimburse me for my\nreasonable expenses incurred in connection with carrying out the foregoing obligation. If the Company is unable\nbecause of my mental or physical incapacity or unavailability for any other reason to secure my signature to apply for\nor\nto pursue any application for any United States or foreign patents or copyright registrations covering Developments or\noriginal works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the\nCompany and its duly authorized officers and agents as my agent and attorney in fact to act for and in my behalf and\nstead to execute and file any such applications or records and to do all other lawfully permitted acts to further the\napplication for, prosecution, issuance, maintenance, and transfer of letters patent or registrations thereon with the same\nlegal force and effect as if originally executed by me. I hereby waive and irrevocably quitclaim to the Company any and\nall claims, of any nature whatsoever, that I now or hereafter have for past, present, or future infringement of any and all\nproprietary rights assigned to the Company.\nSection 3. Returning Company Group Documents.\nI agree that, at the time of termination of my employment with the Company for any reason, I will deliver to the\nCompany (and will not keep in my possession, recreate, or deliver to\nA-4\nanyone else) any and all Confidential Information and all other documents, materials, information, and property\ndeveloped by me pursuant to my employment or otherwise belonging to the Company. I agree further that any property\nsituated on the Company's premises and owned by the Company (or any other member of the Company Group),\nincluding disks and other storage media, filing cabinets, and other work areas, is subject to inspection by personnel of\nany member of the Company Group at any time with or without notice.\nSection 4. Disclosure of Agreement.\nAs long as it remains in effect, I will disclose the existence of this Non-Interference Agreement to any\nprospective employer, partner, co-venturer, investor, or lender prior to entering into an employment, partnership, or other\nbusiness relationship with such person or entity.\nSection 5. Restrictions on Interfering.\n(a) Non-Competition. During the Employment Period and the Post-Termination Non-Compete Period, I shall\nnot, directly or indirectly, individually or on behalf of any person, company, enterprise, or entity, or as a sole proprietor,\npartner, stockholder, director, officer, principal, agent, or executive, or in any other capacity or relationship, engage in\nany Competitive Activities or own any securities (debt or equity) in any person, company, enterprise, or entity that is\nengaged in Competitive Activities, within the United States or any other jurisdiction in which the Company Group is\nactively engaged in business. Notwithstanding the foregoing, my ownership of securities of a public company engaged\nin Competitive Activities not in excess of three percent (3%) of any class of such securities shall not be considered a\nbreach of the covenants set forth in this Section.\n(b) Non-Interference. During the Employment Period and the Post-Termination Non-Interference Period, I shall\nnot, directly or indirectly for my own account or for the account of any other individual or entity, engage in Interfering\nActivities.\n(c) Definitions. For purposes of this Non-Interference Agreement\n(i) "Business Relation" shall mean any current or prospective client, customer, licensee, or other\nbusiness relation of any member of the Company Group, or any such relation that was a client, customer, licensee,\nsupplier, or other business relation within the six (6) month period prior to the expiration of the Employment Period, in\neach case, to whom I provided services, or with whom I transacted business, or whose identity became known to me in\nconnection with my relationship with or employment by the Company Group.\n(ii) "Competitive Activities" shall mean consumer health care related businesses, including the business\nof acting as custodian or administrator for medical payment reimbursement accounts, including, but not limited to, health\nsavings accounts, flexible spending accounts and health reimbursement accounts or any business activities in which any\nmember of the Company Group is engaged (or has committed plans to engage) during the Employment Period.\nA-5\n(iii) "Interfering ringActivities' shall mean (A) encouraging, soliciting, or inducing, or in any manner\nattempting to encourage, solicit, or induce, any Person employed by, or providing consulting services to, any member of\nthe Company Group to terminate such Person's employment or services (or in the case of a consultant, materially\nreducing such services) with any member of the Company Group; (B) hiring any individual who was employed by any\nmember\nof\nthe\nCompany\nGroup\nwithin\nthe\nsix\n(6)\nmonth\nperiod\nprior\nto\nthe\ndate\nof\nsuch\nhiring;\nor\n(C)\nencouraging,\nsoliciting, or inducing, or in any manner attempting to encourage, solicit, or induce, any Business Relation to cease\ndoing business with or reduce the amount of business conducted with any member of the Company Group, or in any way\ninterfering with the relationship between any such Business Relation and any member of the Company Group.\n(iv) "Person" shall mean any individual, corporation, partnership, limited liability company, joint\nventure, association, joint-stock company, trust (charitable or non-charitable), unincorporated organization, or other form\nof business entity.\n(v) "Post-Termination Non-Compete Period" shall mean the period commencing on the date of the\ntermination of the Employment Period for any reason and ending on the twelve (12) month anniversary of such date of\ntermination.\n(vi) "Post-Termination Non-Interference Period" shall mean the period commencing on the date of the\ntermination of the Employment Period for any reason and ending on the twenty-four (24) month anniversary of such date\nof termination.\n(d) Non-Disparagement. I agree that during the Employment Period, and at all times thereafter, I will not make\nany disparaging or defamatory comments regarding any member of the Company Group or its respective current or\nformer directors, officers, employees or shareholders in any respect or make any comments concerning any aspect of\nmy\nrelationship\nwith\nany\nmember\nof\nthe\nCompany\nGroup\nor\nany\nconduct\nor\nevents\nwhich\nprecipitated\nany\ntermination\nof my employment from any member of the Company Group. However, my obligations under this subparagraph (d)\nshall not apply to disclosures required by applicable law, regulation, or order of a court or governmental agency.\nSection 6. Reasonableness of Restrictions.\nI acknowledge and recognize the highly competitive nature of the Company's business, that access to\nConfidential Information renders me special and unique within the Company's industry, and that I will have the\nopportunity to develop substantial relationships with existing and prospective clients, accounts, customers, consultants,\ncontractors, investors, and strategic partners of any member of the Company Group during the course of and as a result\nof my employment with the Company. In light of the foregoing, I recognize and acknowledge that the restrictions and\nlimitations set forth in this Non-Interference Agreement are reasonable and valid in geographical and temporal scope and\nin all other respects and are essential to protect the value of the business and assets of any member of the Company\nGroup. I acknowledge further that the restrictions and limitations set forth in this Non-Interference Agreement will not\nmaterially interfere with my ability to earn a living following the termination of my employment with the\nA-6\nCompany and that my ability to earn a livelihood without violating such restrictions is a material condition to my\nemployment with the Company.\nSection 7. Independence; Severability; Blue Pencil.\nEach of the rights enumerated in this Non-Interference Agreement shall be independent of the others and shall be\nin addition to and not in lieu of any other rights and remedies available to any member of the Company Group at law or\nin equity. If any of the provisions of this Non-Interference Agreement or any part of any of them is hereafter construed or\nadjudicated to be invalid or unenforceable, the same shall not affect the remainder of this Non-Interference Agreement,\nwhich shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are held\nto be invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, I agree\nthat the court making such determination shall have the power to reduce the duration, scope, and/or area of such\nprovision to the maximum and/or broadest duration, scope, and/or area permissible by law, and in its reduced form said\nprovision shall then be enforceable.\nSection 8. Injunctive Relief.\nI expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in\nthis Non-Interference Agreement may result in substantial, continuing, and irreparable injury to the members of the\nCompany Group. Therefore, I hereby agree that, in addition to any other remedy that may be available to the Company,\nany member of the Company Group shall be entitled to injunctive relief, specific performance, or other equitable relief\nby a court of appropriate jurisdiction in the event of any breach or threatened breach of the terms of this Non-\nInterference Agreement without the necessity of proving irreparable harm or injury as a result of such breach or\nthreatened breach. Notwithstanding any other provision to the contrary, I acknowledge and agree that the Post-\nTermination Non-Compete Period, or Post-Termination Non-Interference Period, as applicable, shall be tolled during any\nperiod of violation of any of the covenants in Section 5 hereof and during any other period required for litigation during\nwhich the Company or any other member of the Company Group seeks to enforce such covenants against me if it is\nultimately determined that I was in breach of such covenants.\nSection 9. Cooperation.\nI agree that, following any termination of my employment, I will continue to provide reasonable cooperation to\nthe Company and/or any other member of the Company Group and its or their respective counsel in connection with any\ninvestigation, administrative proceeding, or litigation relating to any matter that occurred during my employment in\nwhich I was involved or of which I have knowledge. As a condition of such cooperation, the Company shall reimburse\nme for reasonable out-of-pocket expenses incurred at the request of the Company with respect to my compliance with\nthis paragraph. I also agree that, in the event that I am subpoenaed by any person or entity (including, but not limited to,\nany government agency) to give testimony or provide documents (in a deposition, court proceeding, or otherwise) that in\nany way relates to my employment by the Company and/or any other member of the Company Group, I will give prompt\nnotice of such request to the Company and will make no disclosure until the Company\nA-7\nand/or the other member of the Company Group has had a reasonable opportunity to contest the right of the requesting\nperson or entity to such disclosure.\nSection 10. General Provisions.\n(a) Governing Law, Venue and Jurisdiction. EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE\nVALIDITY, INTERPRETATION CONSTRUCTION, AND PERFORMANCE OF THIS NON-INTERFERENCE\nAGREEMENT IS GOVERNED BY AND IS TO BE CONSTRUED UNDER THE LAWS OF THE STATE OF\nDELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE, WITHOUT\nREGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING TO\nTHIS RELEASE OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN THE UNITED\nSTATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, TO THE EXTENT FEDERAL JURISDICTION\nEXISTS, AND IN ANY COURT SITTING IN SALT LAKE CITY, UTAH, BUT ONLY IN THE EVENT FEDERAL\nJURISDICTION DOES NOT EXIST, AND ANY APPLICABLE APPELLATE COURTS. FURTHER, I HEREBY\nWAIVE ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT, ACTION, OR PROCEEDING\nUNDER OR IN CONNECTION WITH THIS NON-INTERFERENCE AGREEMENT.\n(b) Entire Agreement. This Non-Interference Agreement sets forth the entire agreement and understanding\nbetween the Company and me relating to the subject matter herein and merges all prior discussions between us. No\nmodification or amendment to this Non-Interference Agreement, nor any waiver of any rights under this Non-\nInterference Agreement, will be effective unless in writing signed by the party to be charged. Any subsequent change or\nchanges in my duties, obligations, rights, or compensation will not affect the validity or scope of this Non-Interference\nAgreement.\n(c) No Right of Continued Employment. I acknowledge and agree that nothing contained herein shall be\nconstrued as granting me any right to continued employment by the Company, and the right of the Company to\nterminate my employment at any time and for no reason or any reason, with or without cause, is specifically reserved.\n(d) Successors and Assigns. This Non-Interference Agreement will be binding upon my heirs, executors,\nadministrators, and other legal representatives and will be for the benefit of the Company, its successors, and its assigns.\nI\nexpressly acknowledge and agree that this Non-Interference Agreement may be assigned by the Company without my\nconsent to any other member of the Company Group as well as any purchaser of all or substantially all of the assets or\nstock of the Company or of any business or division of the Company for which I provide services, whether by purchase,\nmerger, or other similar corporate transaction, provided that the license granted pursuant to Section 2(a) may be\nassigned to any third party by the Company without my consent.\n(e) Survival. The provisions of this Non-Interference Agreement shall survive the termination of my\nemployment with the Company and/or the assignment of this Non-Interference Agreement by the Company to any\nsuccessor in interest or other assignee.\nA-8\n*\n>\n*k\n[Signature to appear on the following page.\nA-9\nI, Edward R. Bloomberg, have executed this Confidentiality, Non-Interference, and Invention Assignment\nAgreement on the date set forth below:\nDate:\n-\n(Signature)\n(Type/Print Name)\n[Signature Page to Edward R. Bloomberg Non-Interference Agreement]	EX-10 .2 3 exhibit102-confidentiality.htm EXHIBIT 10.2\nExhibit A\nCONFIDENTIALITY, NON-INTERFERENCE, AND INVENTION ASSIGNMENT AGREEMENT\nAs a condition of my becoming employed by, or continuing employment with, HealthEquity, Inc., a Delaware\ncorporation (the “Company”), and in consideration of my employment with the Company and my receipt of the\ncompensation now and hereafter paid to me by the Company, I agree to the following terms set forth in this\nConfidentiality, Non-Interference, and Invention Assignment Agreement (this “Non-Interference Agreement”):\nSection 1. Confidential Information.\n(a) Company Group Information. I acknowledge that, during the course of my employment, I will have access\nto information about the Company and its direct and indirect subsidiaries and affiliates (collectively, the “Company\nGroup”) and that my employment with the Company shall bring me into close contact with confidential and proprietary\ninformation of any member of the Company Group. In recognition of the foregoing, I agree, at all times during the term\nof my employment with the Company and thereafter, to hold in confidence, and not to use, except for the benefit of any\nmember of the Company Group, or to disclose to any person, firm, corporation, or other entity without written\nauthorization of the Company, any Confidential Information that I obtain or create. I further agree not to make copies of\nsuch Confidential Information except as authorized by the Company. I understand that “Confidential Information”\nmeans information that any member of the Company Group has developed, acquired, created, compiled, discovered, or\nowned or will develop, acquire, create, compile, discover, or own, that has value in or to the business of any member of\nthe Company Group that is not generally known and that the Company wishes to maintain as confidential. I understand\nthat Confidential Information includes, but is not limited to, any and all non-public information that relates to the actual\nor anticipated business and/or products, research, or development of the Company, or to the Company’s technical data,\ntrade secrets, or know-how, including, but not limited to, research, product plans, or other information regarding the\nCompany’s products or services and markets, customer lists, and customers (including, but not limited to, customers of\nthe Company on whom I called or with whom I may become acquainted during the term of my employment), software,\ndevelopments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration\ninformation, marketing, finances, and other business information disclosed by the Company either directly or indirectly\nin writing, orally, or by drawings or inspection of premises, parts, equipment, or other Company property.\nNotwithstanding the foregoing, Confidential Information shall not include (i) any of the foregoing items that have\nbecome publicly and widely known through no unauthorized disclosure by me or others who were under confidentiality\nobligations as to the item or items involved, or (ii) any information that I am required to disclose to, or by, any\ngovernmental or judicial authority; provided, however, that in such event I will give the Company prompt written notice\nthereof so that any member of the Company Group may seek an appropriate protective order and/or waive in writing\ncompliance with the confidentiality provisions of this Non-Interference Agreement.\nA-1\n(b) Former Employer Information. I represent that my performance of all of the terms of this Non-Interference\nAgreement as an employee of the Company has not breached and will not breach any agreement to keep in confidence\nproprietary information, knowledge, or data acquired by me in confidence or trust prior or subsequent to the\ncommencement of my employment with the Company, and I will not disclose to any member of the Company Group, or\ninduce any member of the Company Group to use, any developments, or confidential or proprietary information or\nmaterial I may have obtained in connection with employment with any prior employer in violation of a confidentiality\nagreement, nondisclosure agreement, or similar agreement with such prior employer.\n(c) Third Party Information. I understand that the Company Group has received and in the future may receive\nfrom third parties confidential or proprietary information (“Third Party Information”) subject to a duty on the Company\nGroup’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. In\nrecognition of the foregoing, I agree, at all times during the period of my employment with the Company (the\n“Employment Period”) and thereafter, to hold in confidence and will not disclose to anyone (other than Company Group\npersonnel who need to know such information in connection with their work for the Company Group), and not to use,\nexcept for the benefit of the Company Group, Third Party Information without the express prior written consent of an\nofficer of the Company and otherwise treat Third Party Information as Confidential Information.\n(d) Whistleblower; Defend Trade Secrets Act Disclosure.\n(i) In addition, I understand that nothing in this Agreement shall be construed to prohibit me from\nreporting possible violations of law or regulation to any governmental agency or regulatory body or making other\ndisclosures that are protected under any law or regulation, or from filing a charge with or participating in any\ninvestigation or proceeding conducted by any governmental agency or regulatory body.\n(ii) I understand that the Defend Trade Secrets Act provides that I may not be held criminally or civilly\nliable under any Federal or state trade secret law for the disclosure of a trade secret that is made in confidence to a\nFederal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of\nreporting or investigating a suspected violation of law; or that is made in a complaint or other document filed in a lawsuit\nor other proceeding, if such filing is made under seal. In the event that I file a lawsuit for retaliation by any member of\nthe Company Group for reporting a suspected violation of law, I may disclose the trade secret to my attorney and use the\ntrade secret information in the court proceeding, if I file any document containing the trade secret under seal and do not\ndisclose the trade secret, except pursuant to court order.\nSection 2. Developments.\n(a) Developments Retained and Licensed. I have attached hereto, as Schedule A, a list describing with\nparticularity all developments, original works of authorship, improvements, and trade secrets that I can demonstrate\nwere created or owned by me prior to the\nA-2\ncommencement of my employment (collectively referred to as “Prior Developments”), which belong solely to me or\nbelong to me jointly with another, that relate in any way to any of the actual or proposed businesses, products, or\nresearch and development of any member of the Company Group, and that are not assigned to the Company hereunder,\nor if no such list is attached, I represent that there are no such Prior Developments. If, during any period during which I\nperform or performed services for any member of the Company Group both before or after the date hereof (the\n“Assignment Period”), whether as an officer, employee, director, independent contractor, consultant, or agent, or in any\nother capacity, I incorporate (or have incorporated) into any member of the Company Group’s product or process a Prior\nDevelopment owned by me or in which I have an interest, I hereby grant each member of the Company Group, and each\nmember of the Company Group shall have, a non-exclusive, royalty-free, irrevocable, perpetual, transferable worldwide\nlicense (with the right to sublicense) to make, have made, copy, modify, make derivative works of, use, sell, and\notherwise distribute such Prior Development as part of or in connection with such product or process.\n(b) Assignment of Developments. I agree that I will, without additional compensation, promptly make full\nwritten disclosure to the Company, and will hold in trust for the sole right and benefit of the Company all developments,\noriginal works of authorship, inventions, concepts, know-how, improvements, trade secrets, and similar proprietary\nrights, whether or not patentable or registrable under copyright or similar laws, which I may solely or jointly conceive\nor develop or reduce to practice, or have solely or jointly conceived or developed or reduced to practice, or have caused\nor may cause to be conceived or developed or reduced to practice, during the Assignment Period, whether or not during\nregular working hours, provided they either (i) relate at the time of conception, development or reduction to practice to\nthe business of any member of the Company Group, or the actual or anticipated research or development of any\nmember of the Company Group; (ii) result from or relate to any work performed for any member of the Company\nGroup; or (iii) are developed through the use of equipment, supplies, or facilities of any member of the Company\nGroup, or any Confidential Information, or in consultation with personnel of any member of the Company Group\n(collectively referred to as “Developments”). I further acknowledge that all Developments made by me (solely or jointly\nwith others) within the scope of and during the Assignment Period are “works made for hire” (to the greatest extent\npermitted by applicable law) for which I am, in part, compensated by my salary, unless regulated otherwise by law, but\nthat, in the event any such Development is deemed not to be a work made for hire, I hereby assign to the Company, or\nits designee, all my right, title, and interest throughout the world in and to any such Development. If any Developments\ncannot be assigned, I hereby grant to each member of the Company Group an exclusive, assignable, irrevocable,\nperpetual, worldwide, sublicenseable (through one or multiple tiers), royalty-free, unlimited license to use, make,\nmodify, sell, offer for sale, reproduce, distribute, create derivative works of, publicly perform, publicly display and\ndigitally perform and display such work in any media now known or hereafter known. Outside the scope of my service,\nwhether during or after my employment with any member of the Company Group, I agree not to (i) modify, adapt, alter,\ntranslate, or create derivative works from any such work of authorship or (ii) merge any such work of authorship with\nother Developments. To the extent rights related to paternity, integrity, disclosure and withdrawal (collectively, “Moral\nRights”) may not be assignable under applicable law and to the extent the\nA-3\nfollowing is allowed by the laws in the various countries where Moral Rights exist, I hereby irrevocably waive such\nMoral Rights and consent to any action of any member of the Company Group that would violate such Moral Rights in\nthe absence of such consent.\n(c) Maintenance of Records. I agree to keep and maintain adequate and current written records of all\nDevelopments made by me (solely or jointly with others) during the Assignment Period. The records may be in the\nform of notes, sketches, drawings, flow charts, electronic data or recordings, and any other format. The records will be\navailable to and remain the sole property of any member of the Company Group at all times. I agree not to remove such\nrecords from the Company’s place of business except as expressly permitted by Company Group policy, which may,\nfrom time to time, be revised at the sole election of such member of the Company Group for the purpose of furthering\nthe business of such member of the Company Group.\n(d) Intellectual Property Rights. I agree to assist the Company, or its designee, at the Company’s expense, in\nevery way to secure the rights of each member of the Company Group in the Developments and any copyrights, patents,\ntrademarks, service marks, database rights, domain names, mask work rights, moral rights, and other intellectual\nproperty rights relating thereto in any and all countries, including the disclosure to the Company of all pertinent\ninformation and data with respect thereto, the execution of all applications, specifications, oaths, assignments,\nrecordations, and all other instruments that the Company shall deem necessary in order to apply for, obtain, maintain,\nand transfer such rights and in order to assign and convey to each member of the Company Group the sole and\nexclusive right, title, and interest in and to such Developments, and any intellectual property and other proprietary rights\nrelating thereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so,\nany such instrument or papers shall continue after the Assignment Period until the expiration of the last such intellectual\nproperty right to expire in any country of the world; provided, however, the Company shall reimburse me for my\nreasonable expenses incurred in connection with carrying out the foregoing obligation. If the Company is unable\nbecause of my mental or physical incapacity or unavailability for any other reason to secure my signature to apply for or\nto pursue any application for any United States or foreign patents or copyright registrations covering Developments or\noriginal works of authorship assigned to the Company as above, then I hereby irrevocably designate and appoint the\nCompany and its duly authorized officers and agents as my agent and attorney in fact to act for and in my behalf and\nstead to execute and file any such applications or records and to do all other lawfully permitted acts to further the\napplication for, prosecution, issuance, maintenance, and transfer of letters patent or registrations thereon with the same\nlegal force and effect as if originally executed by me. I hereby waive and irrevocably quitclaim to the Company any and\nall claims, of any nature whatsoever, that I now or hereafter have for past, present, or future infringement of any and all\nproprietary rights assigned to the Company.\nSection 3. Returning Company Group Documents.\nI agree that, at the time of termination of my employment with the Company for any reason, I will deliver to the\nCompany (and will not keep in my possession, recreate, or deliver to\nA-4\nanyone else) any and all Confidential Information and all other documents, materials, information, and property\ndeveloped by me pursuant to my employment or otherwise belonging to the Company. I agree further that any property\nsituated on the Company’s premises and owned by the Company (or any other member of the Company Group),\nincluding disks and other storage media, filing cabinets, and other work areas, is subject to inspection by personnel of\nany member of the Company Group at any time with or without notice.\nSection 4. Disclosure of Agreement.\nAs long as it remains in effect, I will disclose the existence of this Non-Interference Agreement to any\nprospective employer, partner, co-venturer, investor, or lender prior to entering into an employment, partnership, or other\nbusiness relationship with such person or entity.\nSection 5. Restrictions on Interfering.\n(a) Non-Competition. During the Employment Period and the Post-Termination Non-Compete Period, I shall\nnot, directly or indirectly, individually or on behalf of any person, company, enterprise, or entity, or as a sole proprietor,\npartner, stockholder, director, officer, principal, agent, or executive, or in any other capacity or relationship, engage in\nany Competitive Activities or own any securities (debt or equity) in any person, company, enterprise, or entity that is\nengaged in Competitive Activities, within the United States or any other jurisdiction in which the Company Group is\nactively engaged in business. Notwithstanding the foregoing, my ownership of securities of a public company engaged\nin Competitive Activities not in excess of three percent (3%) of any class of such securities shall not be considered a\nbreach of the covenants set forth in this Section.\n(b) Non-Interference. During the Employment Period and the Post-Termination Non-Interference Period, I shall\nnot, directly or indirectly for my own account or for the account of any other individual or entity, engage in Interfering\nActivities.\n(c) Definitions. For purposes of this Non-Interference Agreement :\n(i) “Business Relation” shall mean any current or prospective client, customer, licensee, or other\nbusiness relation of any member of the Company Group, or any such relation that was a client, customer, licensee,\nsupplier, or other business relation within the six (6) month period prior to the expiration of the Employment Period, in\neach case, to whom I provided services, or with whom I transacted business, or whose identity became known to me in\nconnection with my relationship with or employment by the Company Group.\n(ii) “Competitive Activities” shall mean consumer health care related businesses, including the business\nof acting as custodian or administrator for medical payment reimbursement accounts, including, but not limited to, health\nsavings accounts, flexible spending accounts and health reimbursement accounts or any business activities in which any\nmember of the Company Group is engaged (or has committed plans to engage) during the Employment Period.\nA-5\n(iii) “Interfering Activities” shall mean (A) encouraging, soliciting, or inducing, or in any manner\nattempting to encourage, solicit, or induce, any Person employed by, or providing consulting services to, any member of\nthe Company Group to terminate such Person’s employment or services (or in the case of a consultant, materially\nreducing such services) with any member of the Company Group; (B) hiring any individual who was employed by any\nmember of the Company Group within the six (6) month period prior to the date of such hiring; or (C) encouraging,\nsoliciting, or inducing, or in any manner attempting to encourage, solicit, or induce, any Business Relation to cease\ndoing business with or reduce the amount of business conducted with any member of the Company Group, or in any way\ninterfering with the relationship between any such Business Relation and any member of the Company Group.\n(iv) “Person” shall mean any individual, corporation, partnership, limited liability company, joint\nventure, association, joint‐stock company, trust (charitable or non-charitable), unincorporated organization, or other form\nof business entity.\n(v) “Post-Termination Non-Compete Period” shall mean the period commencing on the date of the\ntermination of the Employment Period for any reason and ending on the twelve (12) month anniversary of such date of\ntermination.\n(vi) “Post-Termination Non-Interference Period” shall mean the period commencing on the date of the\ntermination of the Employment Period for any reason and ending on the twenty-four (24) month anniversary of such date\nof termination.\n(d) Non-Disparagement. I agree that during the Employment Period, and at all times thereafter, I will not make\nany disparaging or defamatory comments regarding any member of the Company Group or its respective current or\nformer directors, officers, employees or shareholders in any respect or make any comments concerning any aspect of\nmy relationship with any member of the Company Group or any conduct or events which precipitated any termination\nof my employment from any member of the Company Group. However, my obligations under this subparagraph (d)\nshall not apply to disclosures required by applicable law, regulation, or order of a court or governmental agency.\nSection 6. Reasonableness of Restrictions.\nI acknowledge and recognize the highly competitive nature of the Company’s business, that access to\nConfidential Information renders me special and unique within the Company’s industry, and that I will have the\nopportunity to develop substantial relationships with existing and prospective clients, accounts, customers, consultants,\ncontractors, investors, and strategic partners of any member of the Company Group during the course of and as a result\nof my employment with the Company. In light of the foregoing, I recognize and acknowledge that the restrictions and\nlimitations set forth in this Non-Interference Agreement are reasonable and valid in geographical and temporal scope and\nin all other respects and are essential to protect the value of the business and assets of any member of the Company\nGroup. I acknowledge further that the restrictions and limitations set forth in this Non-Interference Agreement will not\nmaterially interfere with my ability to earn a living following the termination of my employment with the\nA-6\nCompany and that my ability to earn a livelihood without violating such restrictions is a material condition to my\nemployment with the Company.\nSection 7. Independence; Severability; Blue Pencil.\nEach of the rights enumerated in this Non-Interference Agreement shall be independent of the others and shall be\nin addition to and not in lieu of any other rights and remedies available to any member of the Company Group at law or\nin equity. If any of the provisions of this Non-Interference Agreement or any part of any of them is hereafter construed or\nadjudicated to be invalid or unenforceable, the same shall not affect the remainder of this Non-Interference Agreement,\nwhich shall be given full effect without regard to the invalid portions. If any of the covenants contained herein are held\nto be invalid or unenforceable because of the duration of such provisions or the area or scope covered thereby, I agree\nthat the court making such determination shall have the power to reduce the duration, scope, and/or area of such\nprovision to the maximum and/or broadest duration, scope, and/or area permissible by law, and in its reduced form said\nprovision shall then be enforceable.\nSection 8. Injunctive Relief.\nI expressly acknowledge that any breach or threatened breach of any of the terms and/or conditions set forth in\nthis Non-Interference Agreement may result in substantial, continuing, and irreparable injury to the members of the\nCompany Group. Therefore, I hereby agree that, in addition to any other remedy that may be available to the Company,\nany member of the Company Group shall be entitled to injunctive relief, specific performance, or other equitable relief\nby a court of appropriate jurisdiction in the event of any breach or threatened breach of the terms of this Non-\nInterference Agreement without the necessity of proving irreparable harm or injury as a result of such breach or\nthreatened breach. Notwithstanding any other provision to the contrary, I acknowledge and agree that the Post-\nTermination Non-Compete Period, or Post-Termination Non-Interference Period, as applicable, shall be tolled during any\nperiod of violation of any of the covenants in Section 5 hereof and during any other period required for litigation during\nwhich the Company or any other member of the Company Group seeks to enforce such covenants against me if it is\nultimately determined that I was in breach of such covenants.\nSection 9. Cooperation.\nI agree that, following any termination of my employment, I will continue to provide reasonable cooperation to\nthe Company and/or any other member of the Company Group and its or their respective counsel in connection with any\ninvestigation, administrative proceeding, or litigation relating to any matter that occurred during my employment in\nwhich I was involved or of which I have knowledge. As a condition of such cooperation, the Company shall reimburse\nme for reasonable out-of-pocket expenses incurred at the request of the Company with respect to my compliance with\nthis paragraph. I also agree that, in the event that I am subpoenaed by any person or entity (including, but not limited to,\nany government agency) to give testimony or provide documents (in a deposition, court proceeding, or otherwise) that in\nany way relates to my employment by the Company and/or any other member of the Company Group, I will give prompt\nnotice of such request to the Company and will make no disclosure until the Company\nA-7\nand/or the other member of the Company Group has had a reasonable opportunity to contest the right of the requesting\nperson or entity to such disclosure.\nSection 10. General Provisions.\n(a) Governing Law, Venue and Jurisdiction. EXCEPT WHERE PREEMPTED BY FEDERAL LAW, THE\nVALIDITY, INTERPRETATION, CONSTRUCTION, AND PERFORMANCE OF THIS NON-INTERFERENCE\nAGREEMENT IS GOVERNED BY AND IS TO BE CONSTRUED UNDER THE LAWS OF THE STATE OF\nDELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE, WITHOUT\nREGARD TO CONFLICT OF LAWS RULES. ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING TO\nTHIS RELEASE OR CLAIM OF BREACH HEREOF SHALL BE BROUGHT EXCLUSIVELY IN THE UNITED\nSTATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, TO THE EXTENT FEDERAL JURISDICTION\nEXISTS, AND IN ANY COURT SITTING IN SALT LAKE CITY, UTAH, BUT ONLY IN THE EVENT FEDERAL\nJURISDICTION DOES NOT EXIST, AND ANY APPLICABLE APPELLATE COURTS. FURTHER, I HEREBY\nWAIVE ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY SUIT, ACTION, OR PROCEEDING\nUNDER OR IN CONNECTION WITH THIS NON-INTERFERENCE AGREEMENT.\n(b) Entire Agreement. This Non-Interference Agreement sets forth the entire agreement and understanding\nbetween the Company and me relating to the subject matter herein and merges all prior discussions between us. No\nmodification or amendment to this Non-Interference Agreement, nor any waiver of any rights under this Non-\nInterference Agreement, will be effective unless in writing signed by the party to be charged. Any subsequent change or\nchanges in my duties, obligations, rights, or compensation will not affect the validity or scope of this Non-Interference\nAgreement.\n(c) No Right of Continued Employment. I acknowledge and agree that nothing contained herein shall be\nconstrued as granting me any right to continued employment by the Company, and the right of the Company to\nterminate my employment at any time and for no reason or any reason, with or without cause, is specifically reserved.\n(d) Successors and Assigns. This Non-Interference Agreement will be binding upon my heirs, executors,\nadministrators, and other legal representatives and will be for the benefit of the Company, its successors, and its assigns.\nI expressly acknowledge and agree that this Non-Interference Agreement may be assigned by the Company without my\nconsent to any other member of the Company Group as well as any purchaser of all or substantially all of the assets or\nstock of the Company or of any business or division of the Company for which I provide services, whether by purchase,\nmerger, or other similar corporate transaction, provided that the license granted pursuant to Section 2(a) may be\nassigned to any third party by the Company without my consent.\n(e) Survival. The provisions of this Non-Interference Agreement shall survive the termination of my\nemployment with the Company and/or the assignment of this Non-Interference Agreement by the Company to any\nsuccessor in interest or other assignee.\nA-8\n***\n[Signature to appear on the following page.]\nA-9\nI, Edward R. Bloomberg, have executed this Confidentiality, Non-Interference, and Invention Assignment\nAgreement on the date set forth below:\nDate:\n(Signature)\n(Type/Print Name)\n[Signature Page to Edward R. Bloomberg Non-Interference Agreement]
+d789f0680308f0638a05078c5d896b7a.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 14 dex99d3.htm BUSINESS DEVELOPMENT MUTUAL NONDISCLOSURE AGRMNT\n[LOGO]\nBUSINESS DEVELOPMENT MUTUAL NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated and effective as of September 17, 2001 (the “Effective Date”), by and between\nBorland Software Corporation, a Delaware corporation, (“BORLAND”) and Starbase Corporation, a Delaware corporation (“Company”).\nRECITALS\nA. In connection with the evaluation or pursuit of certain mutually beneficial business opportunities, BORLAND and Company may disclose\nvaluable proprietary information to each other relating to their respective operations and business.\nB. BORLAND and Company would like to protect the confidentiality of, maintain their respective rights in and prevent the unauthorized use and\ndisclosure of; such information.\nIN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE\nDISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO, INTENDING TO BE LEGALLY BOUND HEREBY AGREE\nAS FOLLOWS:\n1. Confidential Information. As used in this Agreement, “Confidential Information” means all information of either party that is not\ngenerally known to the public, whether of a technical, business or other nature, in tangible or intangible form, including, without limitation,\ninformation, data, records, plans, concepts and matters relating to customers and vendors, agreements, business records including, without\nlimitation, business records relating to intellectual property, marketing and sales plans, pricing and other business strategies (whether or not\nimplemented); research and development plans or projects; computer materials such as programs, instructions and printouts; software\nincluding, without limitation, any source codes, object codes, algorithms and other engineering information; formulas; business improvements\nand processes; information regarding the skills and compensation of executives; intellectual property rights and strategies including, without\nlimitation, any work on patents, trademarks, tradenames or universal resource locators, prior to any filing or the use thereof in commerce;\nfinancing terms and strategies; in each case together with all reports, summaries, studies, notes, compilations, analyses and other\ndocumentation which contain or otherwise reflect or are generated from any of the foregoing, and in each case regardless of the media in\nwhich the information is maintained, that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) or that is\notherwise learned by the Receiving Party in the course of its discussions or business dealings with, or its physical or electronic access to the\npremises of, the Disclosing Party, and that has been identified as being proprietary and/or confidential or that by the nature of the\ncircumstances surrounding the disclosure or receipt ought to be treated as proprietary and confidential. Confidential Information also includes\nall information concerning the existence and progress of the parties’ dealings and the identity of BORLAND employees, customers, vendors\nand/or strategic partners.\n2. Use and Ownership of Confidential Information. The Receiving Party, except as expressly provided in this Agreement, will not\ndisclose Confidential Information to anyone without the Disclosing Party’s prior written consent. The Receiving Party agrees to use reasonable\ncare, but in no event no less than the same degree of care that it uses to protect its own confidential and proprietary information of similar\nimportance, to prevent the unauthorized use, disclosure, publication or dissemination of Confidential Information. The Receiving Party will\nrefrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed by the\nDisclosing Party under the terms of this Agreement, except as expressly permitted by applicable law. In addition, the Receiving Party will not\nuse, or permit others to use, Confidential Information for any purpose other than the sole purpose described in Exhibit “A” attached hereto and\nmade a part hereof.\nAll Confidential Information will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by\nlicense or otherwise, to use the Confidential Information except as expressly provided herein. The Receiving Party will not file any copyright\nregistrations, patent, or trademark applications or similar registrations of ownership on the Disclosing Party’s Confidential Information. In the\nevent the Receiving Party does so in violation of this Agreement, the Receiving Party will assign to the Disclosing Party such registrations and\napplications. Subject to the Receiving Party’s patents, trademarks and copyrights, the Disclosing Party is free to\nuse and incorporate in the Disclosing Party’s products any ideas, suggestions or recommendations provided by the Receiving Party regarding\nthe Disclosing Party’s Confidential Information, without payment of royalties or other consideration to the Receiving Party.\n3. Exceptions.\n“Confidential Information” shall not include any information that (i) is or subsequently becomes publicly available\nwithout breach of this Agreement by the Receiving Party or any other party that is subject to a nondisclosure agreement with the Disclosing\nParty; (ii) can be shown by documentation to have been known to the Receiving Party prior to its receipt from the Disclosing Party and which\nwas not received by a party that is subject to a non-disclosure agreement with the Disclosing Party; (iii) is received by the Receiving Party\nfrom a third party who did not acquire or disclose such information in breach of a nondisclosure agreement with the Disclosing Party or other\nwrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by the Receiving Party without\nreference to any Confidential Information.\n4. Non-disclosure of Negotiations. Except as permitted by this Agreement and except as expressly permitted by a definitive written\nagreement, or as required by applicable law or regulation or the rules of the Nasdaq Stock Market, if any, entered into by Company and\nBORLAND with respect to a transaction (the “Definitive Transaction Agreement”), neither Company or its Representatives (as defined\nbelow), on the one hand, nor BORLAND or its Representatives, on the other hand, will disclose to any person (who is not a Representative of\nCompany or BORLAND) the fact that any Confidential Information has been made available to either party or any of the party’s\nRepresentatives. Except with the prior written consent of the other party hereto and except as expressly permitted by a Definitive Transaction\nAgreement, if any, entered into between Company and BORLAND, neither Company or its Representatives, on the one hand, nor BORLAND\nor its Representatives, on the other hand, will disclose the fact that any discussions or negotiations are taking place concerning a possible\ntransaction, including, without limitation, the status of such discussions or negotiations.\n5. Disclosures to Governmental Entities. If the Receiving Party becomes legally obligated to disclose Confidential Information by\nany governmental entity with competent jurisdiction over it, the Receiving Party will give the Disclosing Party prompt written notice to allow\nthe Disclosing Party to seek a protective order or other appropriate remedy. Such notice must include, without limitation, identification of the\ninformation to be so disclosed and a copy of the order. The Receiving Party will disclose only such information as is legally required and will\nuse its reasonable best efforts to obtain confidential treatment for any Confidential Information that is so disclosed.\n6. Compliance Exportation/Transmission of Confidential Information. The Receiving Party certifies that no Confidential\nInformation, or any portion thereof, will be exported to any country in violation of the United States Export Administration Laws and\nRegulations thereunder, or any other applicable export control laws or regulations as they currently exist and as they may be amended from\ntime to time.\n7. Receiving Party Personnel. The Receiving Party will restrict the possession, knowledge, development and use of Confidential\nInformation to its employees, agents, subcontractors and entities controlled by or controlling it (collectively, “Personnel”) who have a\nreasonable need to know the Confidential Information in connection with the purposes set forth in Section 2. The Receiving Party’s Personnel\nwill have access only to the Confidential Information they reasonably need for such purposes. The Receiving Party will ensure that its\nPersonnel comply with this Agreement and will promptly notify the Disclosing Party of any unauthorized use or disclosure of confidential\nInformation or any other breach of this Agreement. The Receiving Party will cooperate with the Disclosing Party in every reasonable way to\nhelp the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.\n8. Return of Confidential Information. Within ten (10) business days of receipt of the Disclosing Party’s written request, and at the\nDisclosing Party’s sole discretion, the Receiving Party will either return to the Disclosing Party all tangible Confidential Information, including\nbut not limited to all computer programs, documentation, notes, plans, drawings and copies thereof, or will provide the Disclosing Party with\nwritten certification that all such tangible Confidential Information has been destroyed.\n9. Independent Development. The Disclosing Party acknowledges that the Receiving Party may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the Confidential Information. Accordingly,\nnothing in this Agreement will be construed as a representation or agreement that the Receiving Party will not develop or have developed for it\nproducts, concepts, systems or techniques that are similar to or compete with the products, concepts,\n2\nsystems or techniques contemplated by or embodied in the Confidential Information, provided that the Receiving Party does not violate any of\nits obligations under this Agreement in connection with such development.\n10. Authority of the Parties to Enter into this Agreement. Each of Company and BORLAND represents and warrants to the other\nparty as follows: (a) that it has the corporate power and authority to enter into this Agreement and to perform its obligations hereunder; (b) its\nexecution, delivery and performance of this Agreement has been duly authorized in accordance with all corporate power and authority; and (c)\nthis Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability\nmay be limited by applicable bankruptcy, insolvency, moratorium, reorganization and other similar laws affecting creditor’s rights generally\nand by general equitable principles.\n11. No Warranty. The Disclosing Party warrants that it has the right to disclose the Confidential Information to the Receiving Party.\nOTHERWISE, ALL INFORMATION IS PROVIDED ON AN “AS IS” BASIS, AND WITHOUT ANY WARRANTY, EXPRESS OR\nIMPLIED, WITH RESPECT TO THE CONFIDENTIAL INFORMATION AND HEREBY EXPRESSLY DISCLAIM ANY AND ALL\nIMPLIED WARRANTIES OR WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO\nEVENT SHALL THE DISCLOSING PARTY BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL\nDAMAGES IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OR USE OF ANY PORTION OF THE\nCONFIDENTIAL INFORMATION.\n12. Contact Person; Non-Solicitation. Until the earlier to occur of (i) the execution by the parties of the Definitive Transaction\nAgreement; or (ii) one (1) year from the date of termination of active negotiations that arose pursuant to this Agreement, each of Company and\nBORLAND agrees not to initiate or maintain contact (except for those contacts made in the ordinary course of business) with any officer,\ndirector, employee, Representative or agent of the other party hereto or any of its subsidiaries regarding its business, assets, operations,\nprospects or finances, except with the prior written consent of the other party hereto. It is understood that officers of each of Company and\nBORLAND will arrange for appropriate designated contact persons at each entity for purposes of facilitating the due diligence process. It is\nfurther understood that all (i) communications regarding the possible transaction, (ii) requests for additional information, (iii) requests for\nmeetings with officers or directors of each of Company and BORLAND and its subsidiaries and (iv) discussions or questions regarding\nprocedures will be submitted or directed to the designated contact person at Company or BORLAND, as the case may be.\nWithout the prior written consent of the other party hereto, neither Company nor BORLAND, as the case may be, for a period\ncommencing on the date of this agreement and terminating one (1) year after the date of the cessation of negotiations between Company and\nBORLAND regarding a possible transaction, shall hire any person who is now or any time during such period was, a senior management or\nkey employee of the other party hereto who was involved in the negotiation and/or exchange of information between the Company and\nBORLAND.\n14. Additional Terms.\n(a) The parties hereby acknowledge that they are aware, and that they will advise their Representatives (as defined below) who are\ninformed as to the matters which are the subject of this Agreement, that the United States securities laws may prohibit any person who has\nreceived from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or\nselling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities. As used in this Agreement, the term “Representatives” means, as to\nany person, such person’s affiliates and its and their directors, officers, employees, partners, subsidiaries, affiliates, agents, advisors (including,\nwithout limitation, attorneys, accountants, consultants, bankers, appraisers and financial advisors), controlling persons, potential financing\nsources or other representatives. The term “person” as used in this Agreement shall be broadly interpreted to include any corporation, limited\nliability company, partnership, group, individual or other entity (including the media).\n(b) The parties acknowledge and agree that each party reserves the right, in its sole discretion, (i) to reject any and all proposals made by\nthe other party or any of its Representatives with regard to any potential transaction between or involving both parties and (ii) to terminate\ndiscussions and negotiations with the other party at any time and return all Confidential Information.\n(c) Both parties understand and agree that no contract or agreement providing for any transaction shall be deemed to exist between the\nparties unless and until a definitive agreement has been executed and delivered by the parties.\n3\n15. Injunctive Relief. The Receiving Party acknowledges that disclosure or use of Confidential Information in violation of this\nAgreement could cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an inadequate\nremedy. The Receiving Party therefore agrees that the Disclosing Party will have the right, in addition to its other rights and remedies, to seek\ninjunctive relief for any violation of this Agreement without posting any security bond, or by posting bond at the lowest amount required by\nlaw.\n16. Limited Relationship. This Agreement will not create a joint venture, partnership or other formal business relationship or entity\nof any kind, or an obligation to form any such relationship or entity. Each party will act as an independent contractor and not as an agent of the\nother party for any purpose, and neither will have the authority to bind the other.\n17. Cumulative Obligations. Each party’s obligations hereunder are in addition to, and not exclusive of, any and all of its other\nobligations and duties to the other party, whether express, implied, in fact or in law.\n18. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties relating to the matters\ndiscussed herein and supersedes all prior or contemporaneous oral and written understandings, agreements and arrangements with respect to\nany information disclosed or received under this Agreement. This Agreement may be amended or modified only with the mutual written\nconsent of the parties.\n19. Assignment. This Agreement is not assignable by either party without the prior written consent of the other party; provided that\nBORLAND or the Company, respectively, may assign this Agreement to any successor to all or substantially all of its business or assets. Any\nattempted assignment without such consent shall be ab initio null and void and of no force or effect. This agreement shall be binding upon and\ninure to the benefit of the parties hereto and their respective successors and permitted assigns. This agreement may not be amended, modified,\naltered or waived, except by an instrument in writing signed by each of Company and BORLAND.\n20. Term and Termination. This Agreement is intended to cover Confidential Information disclosed or received by either party prior\nor subsequent to the date of this Agreement. Unless otherwise earlier terminated, this Agreement automatically will expire three (3) years from\nthe date first written above; provided, however, that each party’s obligations with respect to the other party’s Confidential Information\ndisclosed or received prior to termination or expiration will survive for two (2) additional years following the expiration or termination of this\nAgreement.\nEither party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All\nsections of this Agreement relating to the rights and obligations of the parties concerning confidential Information disclosed during the term of\nthe Agreement shall survive any such termination.\n21. Nonwaiver. Any failure by either party to enforce the other party’s strict performance of any provision of this Agreement will not\nconstitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.\n22. Attorney Fees. In the event any court action is commenced by one party against the other, the substantially prevailing party is\nentitled to recover its out-of-pocket and court costs and reasonable attorneys’ fees. The cost of in-house legal staff will be valued at market\nrates for comparable services from private practitioners.\n23. Governing Law. This Agreement will be construed in accordance with and governed by the laws of the State of California and the\nUnited States of America that would be applied to contracts entered into between California residents to be performed entirely within\nCalifornia without regard to the conflicts or choice of law rules of such state or of any other jurisdiction.\n24. Severability. If a provision of this Agreement is held invalid under any applicable law, such invalidity will not affect any other\nprovision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement will be\ndeemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform any and all\nterms or conditions to give them such effect.\n25. Jurisdiction; Waiver of Jury Trial Each of the parties hereto irrevocably agrees that any action, suit, claim or other legal\nproceeding with respect to this Agreement shall be brought and determined in any court located in the County of Santa Clara in the State of\nCalifornia or of the State of California located in the County of Santa Clara (or any appeals courts thereof). The parties hereby submit to\npersonal jurisdiction and venue in connection with any action brought to enforce or arising out of this Agreement in the County of Santa Clara,\nState of California or the Northern District of California. Each party hereby waives its right to a jury trial for any claims that may arise out of\nthis Agreement.\n4\n26. Service of Process. The parties agree that the delivery of process or other papers in connection with any such action or proceeding\nin the manner provided in Section 21 hereof, or in such other manner as may be permitted by applicable law, shall be valid and sufficient\nservice thereof.\n27. Notices. All notices, requests and other communications provided for in this Agreement shall be in writing, and shall be deemed to\nhave been duly given (a) on the date of delivery when delivered in person, including a courier service, (b) upon receipt if delivered by certified\nmail, return receipt requested, postage prepaid, or (c) upon receipt if sent by facsimile transmission, provided that any notice received by\ntelecopy or otherwise at the addressee’s location on any business day after 5:00 p.m . (addressee’s local time) shall be deemed to have been\nreceived at 9:00 a.m. (addressee’s local time) on the next business day. Either party to this Agreement may notify the other party of any\nchanges to the address or any of the other details specified in this paragraph, provided that such notification shall only be effective on the date\nspecified in such notice or five (5) business days after the notice is given, whichever is later. Rejection or other refusal to accept or the inability\nto deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice as of the date of such rejection,\nrefusal or inability to deliver. All notices hereunder shall be delivered or faxed, as the case may be, to the addresses and/or facsimile numbers\nset forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice.\n28. Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts, each of which shall be\ndeemed to be an original, and all of which together shall constitute one and the same document, and shall become effective when one or more\ncounterparts have been signed by each of the parties and delivered to the other parties. This Agreement may be executed by facsimile\nsignatures.\nThe parties acknowledge and agree that neither of the parties is entering into this Agreement on the basis of any representation or promise not\nexpressly contained herein.\n[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]\n5\nUnderstood and Agreed to by the duly authorized representatives of the parties as evidenced by their respective signatures below. The parties\nhave executed this Agreement as of the date first written above.\nBORLAND SOFTWARE CORPORATION\nBy:\n/s/ DOUG BARRE\nPrint Name:\nDoug Barre\nTitle:\nCOO\nDate:\nSept 17/01\nMailing Address:\n100 Enterprise Way\nScotts Valley, CA 95066-3249\nPhone: 831-431 -1000\nFacsimile: 831-431-4171, Legal Department\nName of Company: Starbase Corporation\nBy:\n/s/ WILLIAM R. STOW III\nPrint Name:\nWilliam R. Stow III\nTitle:\nCEO\nDate:\n9-14-2001\nMailing Address:\n4 Hutton Centre, Suite 800\nSanta Ana, CA 92707\nAttention: Mr. William R. Stow, III\nPresident and Chief Operating Officer\nPhone:\nFacsimile: 714-445-4404\n6\nEXHIBIT A\nSubject to the terms and conditions of the Agreement, the Receiving Party may use the Confidential Information solely for the purpose of\nevaluating the following contemplated business opportunity or transaction with the Disclosing Party:\nDiscussions regarding potential strategic business transaction.	EX-99.(D)(3) 14 dex99d3.htm BUSINESS DEVELOPMENT MUTUAL NONDISCLOSURE AGRMNT\n[LOGO]\nBUSINESS DEVELOPMENT MUTUAL NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement™) is dated and effective as of September 17, 2001 (the “Effective Date”), by and between\nBorland Software Corporation, a Delaware corporation, (“BORLAND”) and Starbase Corporation, a Delaware corporation (“Company”).\nRECITALS\nA. In connection with the evaluation or pursuit of certain mutually beneficial business opportunities, BORLAND and Company may disclose\nvaluable proprietary information to each other relating to their respective operations and business.\nB. BORLAND and Company would like to protect the confidentiality of, maintain their respective rights in and prevent the unauthorized use and disclosure of; such information.\nIN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE\nDISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO, INTENDING TO BE LEGALLY BOUND HEREBY AGREE\nAS FOLLOWS:\n1. Confidential Information. As used in this Agreement, “Confidential Information” means all information of either party that is not generally known to the public, whether of a technical, business or other nature, in tangible or intangible form, including, without limitation,\ninformation, data, records, plans, concepts and matters relating to customers and vendors, agreements, business records including, without\nlimitation, business records relating to intellectual property, marketing and sales plans, pricing and other business strategies (whether or not\nimplemented); research and development plans or projects; computer materials such as programs, instructions and printouts; software\nincluding, without limitation, any source codes, object codes, algorithms and other engineering information; formulas; business improvements and processes; information regarding the skills and compensation of executives; intellectual property rights and strategies including, without\nlimitation, any work on patents, trademarks, tradenames or universal resource locators, prior to any filing or the use thereof in commerce;\nfinancing terms and strategies; in each case together with all reports, summaries, studies, notes, compilations, analyses and other\ndocumentation which contain or otherwise reflect or are generated from any of the foregoing, and in each case regardless of the media in\nwhich the information is maintained, that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) or that is otherwise learned by the Receiving Party in the course of its discussions or business dealings with, or its physical or electronic access to the\npremises of, the Disclosing Party, and that has been identified as being proprietary and/or confidential or that by the nature of the\ncircumstances surrounding the disclosure or receipt ought to be treated as proprietary and confidential. Confidential Information also includes all information concerning the existence and progress of the parties’ dealings and the identity of BORLAND employees, customers, vendors\nand/or strategic partners.\n2. Use and Ownership of Confidential Information. The Receiving Party, except as expressly provided in this Agreement, will not\ndisclose Confidential Information to anyone without the Disclosing Party’s prior written consent. The Receiving Party agrees to use reasonable care, but in no event no less than the same degree of care that it uses to protect its own confidential and proprietary information of similar\nimportance, to prevent the unauthorized use, disclosure, publication or dissemination of Confidential Information. The Receiving Party will\nrefrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed by the\nDisclosing Party under the terms of this Agreement, except as expressly permitted by applicable law. In addition, the Receiving Party will not use, or permit others to use, Confidential Information for any purpose other than the sole purpose described in Exhibit “A” attached hereto and made a part hereof.\nAll Confidential Information will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by\nlicense or otherwise, to use the Confidential Information except as expressly provided herein. The Receiving Party will not file any copyright\nregistrations, patent, or trademark applications or similar registrations of ownership on the Disclosing Party’s Confidential Information. In the event the Receiving Party does so in violation of this Agreement, the Receiving Party will assign to the Disclosing Party such registrations and applications. Subject to the Receiving Party’s patents, trademarks and copyrights, the Disclosing Party is free to\nuse and incorporate in the Disclosing Party’s products any ideas, suggestions or recommendations provided by the Receiving Party regarding\nthe Disclosing Party’s Confidential Information, without payment of royalties or other consideration to the Receiving Party.\n3. Exceptions. “Confidential Information” shall not include any information that (i) is or subsequently becomes publicly available\nwithout breach of this Agreement by the Receiving Party or any other party that is subject to a nondisclosure agreement with the Disclosing\nParty; (ii) can be shown by documentation to have been known to the Receiving Party prior to its receipt from the Disclosing Party and which\nwas not received by a party that is subject to a non-disclosure agreement with the Disclosing Party; (iii) is received by the Receiving Party\nfrom a third party who did not acquire or disclose such information in breach of a nondisclosure agreement with the Disclosing Party or other\nwrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by the Receiving Party without\nreference to any Confidential Information.\n4. Non-disclosure of Negotiations. Except as permitted by this Agreement and except as expressly permitted by a definitive written\nagreement, or as required by applicable law or regulation or the rules of the Nasdaq Stock Market, if any, entered into by Company and\nBORLAND with respect to a transaction (the “Definitive Transaction Agreement”), neither Company or its Representatives (as defined\nbelow), on the one hand, nor BORLAND or its Representatives, on the other hand, will disclose to any person (who is not a Representative of\nCompany or BORLAND) the fact that any Confidential Information has been made available to either party or any of the party’s\nRepresentatives. Except with the prior written consent of the other party hereto and except as expressly permitted by a Definitive Transaction\nAgreement, if any, entered into between Company and BORLAND, neither Company or its Representatives, on the one hand, nor BORLAND\nor its Representatives, on the other hand, will disclose the fact that any discussions or negotiations are taking place concerning a possible\ntransaction, including, without limitation, the status of such discussions or negotiations.\n5. Disclosures to Governmental Entities. If the Receiving Party becomes legally obligated to disclose Confidential Information by\nany governmental entity with competent jurisdiction over it, the Receiving Party will give the Disclosing Party prompt written notice to allow\nthe Disclosing Party to seek a protective order or other appropriate remedy. Such notice must include, without limitation, identification of the\ninformation to be so disclosed and a copy of the order. The Receiving Party will disclose only such information as is legally required and will\nuse its reasonable best efforts to obtain confidential treatment for any Confidential Information that is so disclosed.\n6. Compliance Exportation/Transmission of Confidential Information. The Receiving Party certifies that no Confidential\nInformation, or any portion thereof, will be exported to any country in violation of the United States Export Administration Laws and\nRegulations thereunder, or any other applicable export control laws or regulations as they currently exist and as they may be amended from\ntime to time.\n7. Receiving Party Personnel. The Receiving Party will restrict the possession, knowledge, development and use of Confidential\nInformation to its employees, agents, subcontractors and entities controlled by or controlling it (collectively, “Personnel”) who have a\nreasonable need to know the Confidential Information in connection with the purposes set forth in Section 2. The Receiving Party’s Personnel\nwill have access only to the Confidential Information they reasonably need for such purposes. The Receiving Party will ensure that its\nPersonnel comply with this Agreement and will promptly notify the Disclosing Party of any unauthorized use or disclosure of confidential\nInformation or any other breach of this Agreement. The Receiving Party will cooperate with the Disclosing Party in every reasonable way to\nhelp the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.\n8. Return of Confidential Information. Within ten (10) business days of receipt of the Disclosing Party’s written request, and at the\nDisclosing Party’s sole discretion, the Receiving Party will either return to the Disclosing Party all tangible Confidential Information, including\nbut not limited to all computer programs, documentation, notes, plans, drawings and copies thereof, or will provide the Disclosing Party with\nwritten certification that all such tangible Confidential Information has been destroyed.\n9. Independent Development. The Disclosing Party acknowledges that the Receiving Party may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the Confidential Information. Accordingly,\nnothing in this Agreement will be construed as a representation or agreement that the Receiving Party will not develop or have developed for it\nproducts, concepts, systems or techniques that are similar to or compete with the products, concepts,\n2\nsystems or techniques contemplated by or embodied in the Confidential Information, provided that the Receiving Party does not violate any of\nits obligations under this Agreement in connection with such development.\n10. Authority of the Parties to Enter into this Agreement. Each of Company and BORLAND represents and warrants to the other\nparty as follows: (a) that it has the corporate power and authority to enter into this Agreement and to perform its obligations hereunder; (b) its\nexecution, delivery and performance of this Agreement has been duly authorized in accordance with all corporate power and authority; and (c)\nthis Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability\nmay be limited by applicable bankruptcy, insolvency, moratorium, reorganization and other similar laws affecting creditor’s rights generally\nand by general equitable principles.\n11. No Warranty. The Disclosing Party warrants that it has the right to disclose the Confidential Information to the Receiving Party.\nOTHERWISE, ALL INFORMATION IS PROVIDED ON AN “AS IS” BASIS, AND WITHOUT ANY WARRANTY, EXPRESS OR\nIMPLIED, WITH RESPECT TO THE CONFIDENTIAL INFORMATION AND HEREBY EXPRESSLY DISCLAIM ANY AND ALL\nIMPLIED WARRANTIES OR WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO\nEVENT SHALL THE DISCLOSING PARTY BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL\nDAMAGES IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OR USE OF ANY PORTION OF THE\nCONFIDENTIAL INFORMATION.\n12. Contact Person; Non-Solicitation. Until the earlier to occur of (i) the execution by the parties of the Definitive Transaction\nAgreement; or (ii) one (1) year from the date of termination of active negotiations that arose pursuant to this Agreement, each of Company and\nBORLAND agrees not to initiate or maintain contact (except for those contacts made in the ordinary course of business) with any officer,\ndirector, employee, Representative or agent of the other party hereto or any of its subsidiaries regarding its business, assets, operations,\nprospects or finances, except with the prior written consent of the other party hereto. It is understood that officers of each of Company and\nBORLAND will arrange for appropriate designated contact persons at each entity for purposes of facilitating the due diligence process. It is\nfurther understood that all (i) communications regarding the possible transaction, (ii) requests for additional information, (iii) requests for\nmeetings with officers or directors of each of Company and BORLAND and its subsidiaries and (iv) discussions or questions regarding\nprocedures will be submitted or directed to the designated contact person at Company or BORLAND, as the case may be.\nWithout the prior written consent of the other party hereto, neither Company nor BORLAND, as the case may be, for a period\ncommencing on the date of this agreement and terminating one (1) year after the date of the cessation of negotiations between Company and\nBORLAND regarding a possible transaction, shall hire any person who is now or any time during such period was, a senior management or\nkey employee of the other party hereto who was involved in the negotiation and/or exchange of information between the Company and\nBORLAND.\n14. Additional Terms.\n(@) The parties hereby acknowledge that they are aware, and that they will advise their Representatives (as defined below) who are\ninformed as to the matters which are the subject of this Agreement, that the United States securities laws may prohibit any person who has\nreceived from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or\nselling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities. As used in this Agreement, the term “Representatives” means, as to\nany person, such person’s affiliates and its and their directors, officers, employees, partners, subsidiaries, affiliates, agents, advisors (including,\nwithout limitation, attorneys, accountants, consultants, bankers, appraisers and financial advisors), controlling persons, potential financing\nsources or other representatives. The term “person” as used in this Agreement shall be broadly interpreted to include any corporation, limited\nliability company, partnership, group, individual or other entity (including the media).\n(b) The parties acknowledge and agree that each party reserves the right, in its sole discretion, (i) to reject any and all proposals made by\nthe other party or any of its Representatives with regard to any potential transaction between or involving both parties and (ii) to terminate\ndiscussions and negotiations with the other party at any time and return all Confidential Information.\n(c) Both parties understand and agree that no contract or agreement providing for any transaction shall be deemed to exist between the\nparties unless and until a definitive agreement has been executed and delivered by the parties.\n3\n15. Injunctive Relief. The Receiving Party acknowledges that disclosure or use of Confidential Information in violation of this\nAgreement could cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an inadequate\nremedy. The Receiving Party therefore agrees that the Disclosing Party will have the right, in addition to its other rights and remedies, to seek\ninjunctive relief for any violation of this Agreement without posting any security bond, or by posting bond at the lowest amount required by\nlaw.\n16. Limited Relationship. This Agreement will not create a joint venture, partnership or other formal business relationship or entity\nof any kind, or an obligation to form any such relationship or entity. Each party will act as an independent contractor and not as an agent of the\nother party for any purpose, and neither will have the authority to bind the other.\n17. Cumulative Obligations. Each party’s obligations hereunder are in addition to, and not exclusive of, any and all of its other\nobligations and duties to the other party, whether express, implied, in fact or in law.\n18. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties relating to the matters\ndiscussed herein and supersedes all prior or contemporaneous oral and written understandings, agreements and arrangements with respect to\nany information disclosed or received under this Agreement. This Agreement may be amended or modified only with the mutual written\nconsent of the parties.\n19. Assignment. This Agreement is not assignable by either party without the prior written consent of the other party; provided that\nBORLAND or the Company, respectively, may assign this Agreement to any successor to all or substantially all of its business or assets. Any\nattempted assignment without such consent shall be ab initio null and void and of no force or effect. This agreement shall be binding upon and\ninure to the benefit of the parties hereto and their respective successors and permitted assigns. This agreement may not be amended, modified,\naltered or waived, except by an instrument in writing signed by each of Company and BORLAND.\n20. Term and Termination. This Agreement is intended to cover Confidential Information disclosed or received by either party prior\nor subsequent to the date of this Agreement. Unless otherwise earlier terminated, this Agreement automatically will expire three (3) years from\nthe date first written above; provided, however, that each party’s obligations with respect to the other party’s Confidential Information\ndisclosed or received prior to termination or expiration will survive for two (2) additional years following the expiration or termination of this\nAgreement.\nEither party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All\nsections of this Agreement relating to the rights and obligations of the parties concerning confidential Information disclosed during the term of\nthe Agreement shall survive any such termination.\n21. Nonwaiver. Any failure by either party to enforce the other party’s strict performance of any provision of this Agreement will not\nconstitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.\n22. Attorney Fees. In the event any court action is commenced by one party against the other, the substantially prevailing party is\nentitled to recover its out-of-pocket and court costs and reasonable attorneys’ fees. The cost of in-house legal staff will be valued at market\nrates for comparable services from private practitioners.\n23. Governing Law. This Agreement will be construed in accordance with and governed by the laws of the State of California and the\nUnited States of America that would be applied to contracts entered into between California residents to be performed entirely within\nCalifornia without regard to the conflicts or choice of law rules of such state or of any other jurisdiction.\n24. Severability. If a provision of this Agreement is held invalid under any applicable law, such invalidity will not affect any other\nprovision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement will be\ndeemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform any and all\nterms or conditions to give them such effect.\n25. Jurisdiction; Waiver of Jury Trial Each of the parties hereto irrevocably agrees that any action, suit, claim or other legal\nproceeding with respect to this Agreement shall be brought and determined in any court located in the County of Santa Clara in the State of\nCalifornia or of the State of California located in the County of Santa Clara (or any appeals courts thereof). The parties hereby submit to\npersonal jurisdiction and venue in connection with any action brought to enforce or arising out of this Agreement in the County of Santa Clara,\nState of California or the Northern District of California. Each party hereby waives its right to a jury trial for any claims that may arise out of\nthis Agreement.\n26. Service of Process. The parties agree that the delivery of process or other papers in connection with any such action or proceeding\nin the manner provided in Section 21 hereof, or in such other manner as may be permitted by applicable law, shall be valid and sufficient\nservice thereof.\n27. Notices. All notices, requests and other communications provided for in this Agreement shall be in writing, and shall be deemed to\nhave been duly given (a) on the date of delivery when delivered in person, including a courier service, (b) upon receipt if delivered by certified\nmail, return receipt requested, postage prepaid, or (c) upon receipt if sent by facsimile transmission, provided that any notice received by\ntelecopy or otherwise at the addressee’s location on any business day after 5:00 p.m. (addressee’s local time) shall be deemed to have been\nreceived at 9:00 a.m. (addressee’s local time) on the next business day. Either party to this Agreement may notify the other party of any\nchanges to the address or any of the other details specified in this paragraph, provided that such notification shall only be effective on the date\nspecified in such notice or five (5) business days after the notice is given, whichever is later. Rejection or other refusal to accept or the inability\nto deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice as of the date of such rejection,\nrefusal or inability to deliver. All notices hereunder shall be delivered or faxed, as the case may be, to the addresses and/or facsimile numbers\nset forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice.\n28. Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts, each of which shall be\ndeemed to be an original, and all of which together shall constitute one and the same document, and shall become effective when one or more\ncounterparts have been signed by each of the parties and delivered to the other parties. This Agreement may be executed by facsimile\nsignatures.\nThe parties acknowledge and agree that neither of the parties is entering into this Agreement on the basis of any representation or promise not\nexpressly contained herein.\n[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]\nUnderstood and Agreed to by the duly authorized representatives of the parties as evidenced by their respective signatures below. The parties\nhave executed this Agreement as of the date first written above.\nBORLAND SOFTWARE CORPORATION\nBy: /s/ DOUG BARRE\nPrint Name: Doug Barre\nTitle: CcOoO\nDate: Sept 17/01\nMailing Address:\n100 Enterprise Way\nScotts Valley, CA 95066-3249\nPhone: 831-431-1000\nFacsimile: 831-431-4171, Legal Department\nName of Company: Starbase Corporation\nBy: /s/ WILLIAM R. STOW III\nPrint Name: William R. Stow III\nTitle: CEO\nDate: 9-14-2001\nMailing Address:\n4 Hutton Centre, Suite 800\nSanta Ana, CA 92707\nAttention:  Mr. William R. Stow, III\nPresident and Chief Operating Officer\nPhone:\nFacsimile: 714-445-4404\nEXHIBIT A\nSubject to the terms and conditions of the Agreement, the Receiving Party may use the Confidential Information solely for the purpose of\nevaluating the following contemplated business opportunity or transaction with the Disclosing Party:\nDiscussions regarding potential strategic business transaction.	EX-99.(D)(3) 14 dex99d3.htm BUSINESS DEVELOPMENT MUTUAL NONDISCLOSURE AGRMNT\n[LOGO]\nBUSINESS DEVELOPMENT MUTUAL NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this "Agreement") is dated and effective as of September 17, 2001 (the "Effective Date") by and between\nBorland Software Corporation, a Delaware corporation, ("BORLAND") and Starbase Corporation, a Delaware corporation ("Company").\nRECITALS\nA.\nIn connection with the evaluation or pursuit of certain mutually beneficial business opportunities, BORLAND and Company may disclose\nvaluable proprietary information to each other relating to their respective operations and business.\nB.\nBORLAND and Company would like to protect the confidentiality of, maintain their respective rights in and prevent the unauthorized use and\ndisclosure of; such information.\nIN\nCONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE\nDISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO, INTENDING TO BE LEGALLY BOUND HEREBY AGREE\nAS FOLLOWS:\n1. Confidential Information. As used in this Agreement, "Confidential Information" means all information of either party that is not\ngenerally known to the public, whether of a technical, business or other nature, in tangible or intangible form, including, without limitation,\ninformation, data, records, plans, concepts and matters relating to customers and vendors, agreements, business records including, without\nlimitation, business records relating to intellectual property, marketing and sales plans, pricing and other business strategies (whether or not\nimplemented); research and development plans or projects; computer materials such as programs, instructions and printouts; software\nincluding, without limitation, any source codes, object codes, algorithms and other engineering information; formulas; business improvements\nand processes; information regarding the skills and compensation of executives; intellectual property rights and strategies including, without\nlimitation, any work on patents, trademarks, tradenames or universal resource locators, prior to any filing or the use thereof in commerce;\nfinancing terms and strategies; in each case together with all reports, summaries, studies, notes, compilations, analyses and other\ndocumentation which contain or otherwise reflect or are generated from any of the foregoing, and in each case regardless of the media in\nwhich the information is maintained, that is disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") or that is\notherwise learned by the Receiving Party in the course of its discussions or business dealings with, or its physical or electronic access to the\npremises of, the Disclosing Party, and that has been identified as being proprietary and/or confidential or that by the nature of the\ncircumstances surrounding the disclosure or receipt ought to be treated as proprietary and confidential. Confidential Information also includes\nall information concerning the existence and progress of the parties' dealings and the identity of BORLAND employees, customers, vendors\nand/or strategic partners.\n2. Use and Ownership of Confidential Information. The Receiving Party, except as expressly provided in this Agreement, will not\ndisclose Confidential Information to anyone without the Disclosing Party's prior written consent. The Receiving Party agrees to use reasonable\ncare, but in no event no less than the same degree of care that it uses to protect its own confidential and proprietary information of similar\nimportance, to prevent the unauthorized use, disclosure, publication or dissemination of Confidential Information. The Receiving Party will\nrefrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed by the\nDisclosing Party under the terms of this Agreement, except as expressly permitted by applicable law. In addition, the Receiving Party\nwill\nnot\nuse, or permit others to use, Confidentia Information for any purpose other than the sole purpose described in Exhibit "A" attached hereto and\nmade a part hereof.\nAll Confidential Information will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by\nlicense or otherwise, to use the Confidential Information except as expressly provided herein. The Receiving Party will not file any copyright\nregistrations, patent, or trademark applications or similar registrations of ownership on the Disclosing Party's Confidential Information.\nIn\nthe\nevent the Receiving Party does so in violation of this Agreement, the Receiving Party will assign to the Disclosing Party such registrations and\napplications. Subject to the Receiving Party's patents, trademarks and copyrights, the Disclosing Party is free to\nuse and incorporate in the Disclosing Party's products any ideas, suggestions or recommendations provided by the Receiving Party regarding\nthe Disclosing Party's Confidential Information, without payment of royalties or other consideration to the Receiving Party.\n3. Exceptions. "Confidential Information" shall not include any information that (i) is or subsequently becomes publicly available\nwithout breach of this Agreement by the Receiving Party or any other party that is subject to a nondisclosure agreement with the Disclosing\nParty; (ii) can be shown by documentation to have been known to the Receiving Party prior to its receipt from the Disclosing Party and which\nwas not received by a party that is subject to a non-disclosure agreement with the Disclosing Party; (iii) is received by the Receiving Party\nfrom a third party who did not acquire or disclose such information in breach of a nondisclosure agreement with the Disclosing Party or other\nwrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by the Receiving Party without\nreference to any Confidential Information.\n4. Non-disclosure of Negotiations. Except as permitted by this Agreement and except as expressly permitted by a definitive written\nagreement, or as required by applicable law or regulation or the rules of the Nasdaq Stock Market, if any, entered into by Company and\nBORLAND\nwith\nrespect\nto\na\ntransaction\n(the\n"Definitive\nTransaction\nAgreement"),\nneither\nCompany\nor\nits\nRepresentatives\n(as\ndefined\nbelow), on the one hand, nor BORLAND or its Representatives, on the other hand, will disclose to any person (who is not a Representative of\nCompany or BORLAND) the fact that any Confidentia Information has been made available to either party or any of the party's\nRepresentatives. Except with the prior written consent of the other party hereto and except as expressly permitted by a Definitive Transaction\nAgreement, if any, entered into between Company and BORLAND, neither Company or its Representatives, on the one hand, nor BORLAND\nor its Representatives, on the other hand, will disclose the fact that any discussions or negotiations are taking place concerning a possible\ntransaction, including, without limitation, the status of such discussions or negotiations.\n5. Disclosures to Governmental Entities. If the Receiving Party becomes legally obligated to disclose Confidential Information by\nany governmenta entity with competent jurisdiction over it, the Receiving Party will give the Disclosing Party prompt written notice to allow\nthe Disclosing Party to seek a protective order or other appropriate remedy. Such notice must include, without limitation, identification of the\ninformation to be so disclosed and a copy of the order. The Receiving Party will disclose only such information as is legally required and will\nuse its reasonable best efforts to obtain confidential treatment for any Confidential Information that is so disclosed.\n6. Compliance Exportation/Transmission of Confidential Information. The Receiving Party certifies that no Confidential\nInformation, or any portion thereof, will be exported to any country in violation of the United States Export Administration Laws and\nRegulations thereunder, or any other applicable export control laws or regulations as they currently exist and as they may be amended from\ntime to time.\n7. Receiving Party Personnel. The Receiving Party will restrict the possession, knowledge, development and use of Confidentia\nInformation to its employees, agents, subcontractors and entities controlled by or controlling it (collectively, "Personnel") who have a\nreasonable need to know the Confidential Information in connection with the purposes set forth in Section 2. The Receiving Party's Personnel\nwill have access only to the Confidential Information they reasonably need for such purposes. The Receiving Party will ensure that its\nPersonnel comply with this Agreement and will promptly notify the Disclosing Party of any unauthorized use or disclosure of confidential\nInformation or any other breach of this Agreement. The Receiving Party will cooperate with the Disclosing Party in every reasonable way to\nhelp the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.\n8. Return of Confidential Information. Within ten (10) business days of receipt of the Disclosing Party's written request, and at the\nDisclosing Party's sole discretion, the Receiving Party will either return to the Disclosing Party all tangible Confidential Information, including\nbut not limited to all computer programs, documentation, notes, plans, drawings and copies thereof, or will provide the Disclosing Party with\nwritten certification that all such tangible Confidential Information has been destroyed.\n9. Independent Development. The Disclosing Party acknowledges that the Receiving Party may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the Confidential Information. Accordingly,\nnothing in this Agreement will be construed as a representation or agreement that the Receiving Party will not develop or have developed for it\nproducts, concepts, systems or techniques that are similar to or compete with the products, concepts,\n2\nsystems or techniques contemplated by or embodied in the Confidential Information, provided that the Receiving Party does not violate any of\nits obligations under this Agreement in connection with such development.\n10. Authority of the Parties to Enter into this Agreement. Each of Company and BORLAND represents and warrants to the other\nparty as follows: (a) that it has the corporate power and authority to enter into this Agreement and to perform its obligations hereunder; (b) its\nexecution, delivery and performance of this Agreement has been duly authorized in accordance with all corporate power and authority; and (c)\nthis Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability\nmay be limited by applicable bankruptcy, insolvency, moratorium, reorganization and other similar laws affecting creditor's rights generally\nand by general equitable principles.\n11. No Warranty. The Disclosing Party warrants that it has the right to disclose the Confidential Information to the Receiving Party.\nOTHERWISE, ALL INFORMATION IS PROVIDED ON AN "AS IS" BASIS, AND WITHOUT ANY WARRANTY, EXPRESS OR\nIMPLIED, WITH RESPECT TO THE CONFIDENTIAL INFORMATION AND HEREBY EXPRESSLY DISCLAIM ANY AND ALL\nIMPLIED WARRANTIES OR WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO\nEVENT SHALL THE DISCLOSING PARTY BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL\nDAMAGES IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OR USE OF ANY PORTION OF THE\nCONFIDENTIAL INFORMATION.\n12. Contact Person; Non-Solicitation. Until the earlier to occur of (i) the execution by the parties of the Definitive Transaction\nAgreement; or (ii) one (1) year from the date of termination of active negotiations that arose pursuant to this Agreement, each of Company and\nBORLAND agrees not to initiate or maintain contact (except for those contacts made in the ordinary course of business) with any officer,\ndirector, employee, Representative or agent of the other party hereto or any of its subsidiaries regarding its business, assets, operations,\nprospects or finances, except with the prior written consent of the other party hereto. It is understood that officers of each of Company and\nBORLAND will arrange for appropriate designated contact persons at each entity for purposes of facilitating the due diligence process. It is\nfurther understood that all (i) communications regarding the possible transaction, (ii) requests for additional information, (iii) requests for\nmeetings with officers or directors of each of Company and BORLAND and its subsidiaries and (iv) discussions or questions regarding\nprocedures will be submitted or directed to the designated contact person at Company or BORLAND, as the case may be.\nWithout the prior written consent of the other party hereto, neither Company nor BORLAND, as the case may be, for a period\ncommencing on the date of this agreement and terminating one (1) year after the date of the cessation of negotiations between Company and\nBORLAND regarding a possible transaction, shall hire any person who is now or any time during such period was, a senior management or\nkey employee of the other party hereto who was involved in the negotiation and/or exchange of information between the Company and\nBORLAND.\n14. Additional Terms.\n(a) The parties hereby acknowledge that they are aware, and that they will advise their Representatives (as defined below) who are\ninformed as to the matters which are the subject of this Agreement, that the United States securities laws may prohibit any person who has\nreceived from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or\nselling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities. As used in this Agreement, the term "Representatives" means, as to\nany person, such person's affiliates and its and their directors, officers, employees, partners, subsidiaries, affiliates, agents, advisors (including,\nwithout limitation, attorneys, accountants, consultants, bankers, appraisers and financial advisors), controlling persons, potential financing\nsources or other representatives The term "person" as used in this Agreement shall be broadly interpreted to include any corporation, limited\nliability company, partnership, group, individual or other entity (including the media).\n(b) The parties acknowledge and agree that each party reserves the right, in its sole discretion, (i) to reject any and all proposals made by\nthe other party or any of its Representatives with regard to any potential transaction between or involving both parties and (ii) to terminate\ndiscussions and negotiations with the other party at any time and return all Confidential Information.\n(c) Both parties understand and agree that no contract or agreement providing for any transaction shall be deemed to exist between the\nparties unless and until a definitive agreement has been executed and delivered by the parties.\n3\n15. Injunctive Relief. The Receiving Party acknowledges that disclosure or use of Confidential Information in violation of this\nAgreement could cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an inadequate\nremedy. The Receiving Party therefore agrees that the Disclosing Party will have the right, in addition to its other rights and remedies, to seek\ninjunctive relief for any violation of this Agreement without posting any security bond, or by posting bond at the lowest amount required by\nlaw.\n16. Limited Relationship. This Agreement will not create a joint venture, partnership or other formal business relationship or entity\nof any kind, or an obligation to form any such relationship or entity. Each party will act as an independent contractor and not as an agent of the\nother party for any purpose, and neither will have the authority to bind the other.\n17. Cumulative Obligations. Each party's obligations hereunder are in addition to, and not exclusive of, any and all of its other\nobligations and duties to the other party, whether express, implied, in fact or in law.\n18. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties relating to the matters\ndiscussed herein and supersedes all prior or contemporaneous oral and written understandings, agreements and arrangements with respect to\nany information disclosed or received under this Agreement. This Agreement may be amended or modified only with the mutual written\nconsent of the parties.\n19. Assignment. This Agreement is not assignable by either party without the prior written consent of the other party; provided that\nBORLAND or the Company, respectively, may assign this Agreement to any successor to all or substantially all of its business or assets. Any\nattempted assignment without such consent shall be ab initio null and void and of no force or effect. This agreement shall be binding upon and\ninure to the benefit of the parties hereto and their respective successors and permitted assigns. This agreement may not be amended, modified,\naltered or waived, except by an instrument in writing signed by each of Company and BORLAND.\n20. Term and Termination. This Agreement is intended to cover Confidentia Information disclosed or received by either party prior\nor subsequent to the date of this Agreement. Unless otherwise earlier terminated, this Agreement automatically will expire three (3) years from\nthe date first written above; provided, however, that each party's obligations with respect to the other party's Confidential Information\ndisclosed or received prior to termination or expiration will survive for two (2) additional years following the expiration or termination of this\nAgreement.\nEither party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All\nsections of this Agreement relating to the rights and obligations of the parties concerning confidential Information disclosed during the term of\nthe Agreement shall survive any such termination.\n21. Nonwaiver. Any failure by either party to enforce the other party's strict performance of any provision of this Agreement will not\nconstitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.\n22. Attorney Fees. In the event any court action is commenced by one party against the other, the substantially prevailing party is\nentitled to recover its out-of-pocket and court costs and reasonable attorneys' fees. The cost of in-house legal staff will be valued at market\nrates for comparable services from private practitioners.\n23. Governing Law. This Agreement will be construed in accordance with and governed by the laws of the State of California and the\nUnited States of America that would be applied to contracts entered into between California residents to be performed entirely within\nCalifornia without regard to the conflicts or choice of law rules of such state or of any other jurisdiction.\n24. Severability. If a provision of this Agreement is held invalid under any applicable law, such invalidity will not affect any other\nprovision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement will be\ndeemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform any and all\nterms or conditions to give them such effect.\n25. Jurisdiction; Waiver of Jury Trial Each of the parties hereto irrevocably agrees that any action, suit, claim or other legal\nproceeding with respect to this Agreement shall be brought and determined in any court located in the County of Santa Clara in the State of\nCalifornia or of the State of California located in the County of Santa Clara (or any appeals courts thereof). The parties hereby submit to\npersonal jurisdiction and venue in connection with any action brought to enforce or arising out of this Agreement in the County of Santa Clara,\nState of California or the Northern District of California. Each party hereby waives its right to a jury trial for any claims that may arise out of\nthis Agreement.\n4\n26. Service of Process. The parties agree that the delivery of process or other papers in connection with any such action or proceeding\nin the manner provided in Section 21 hereof, or in such other manner as may be permitted by applicable law, shall be valid and sufficient\nservice thereof.\n27. Notices. All notices, requests and other communications provided for in this Agreement shall be in writing, and shall be deemed to\nhave been duly given (a) on the date of delivery when delivered in person, including a courier service, (b) upon receipt if delivered by certified\nmail, return receipt requested, postage prepaid, or (c) upon receipt if sent by facsimile transmission provided that any notice received by\ntelecopy or otherwise at the addressee's location on any business day after 5:00 p.m. (addressee's local time) shall be deemed to have been\nreceived at 9:00 a.m. (addressee's local time) on the next business day. Either party to this Agreement may notify the other party of any\nchanges to the address or any of the other details specified in this paragraph, provided that such notification shall only be effective on the date\nspecified in such notice or five (5) business days after the notice is given, whichever is later. Rejection or other refusal to accept or the inability\nto deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice as of the date of such rejection,\nrefusal or inability to deliver. All notices hereunder shall be delivered or faxed, as the case may be, to the addresses and/or facsimile numbers\nset forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice.\n28. Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts, each of which shall be\ndeemed to be an original, and all of which together shall constitute one and the same document, and shall become effective when one or more\ncounterparts have been signed by each of the parties and delivered to the other parties. This Agreement may be executed by facsimile\nsignatures.\nThe parties acknowledge and agree that neither of the parties is entering into this Agreement on the basis of any representation or promise not\nexpressly contained herein.\n[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]\n5\nUnderstood and Agreed to by the duly authorized representatives of the parties as evidenced by their respective signatures below. The\nparties\nhave executed this Agreement as of the date first written above.\nBORLAND SOFTWARE CORPORATION\nBy:\n/s/ Doug BARRE\nPrint Name:\nDoug Barre\nTitle:\nCOO\nDate:\nSept 17/01\nMailing Address:\n100 Enterprise Way\nScotts Valley, CA 95066-3249\nPhone: 831-431-1000\nFacsimile: 831-431-4171, Legal Department\nName of Company: Starbase Corporation\nBy:\n/s/ WILLIAM R. STow III\nPrint Name:\nWilliam R. Stow III\nTitle:\nCEO\nDate:\n9-14-2001\nMailing Address:\n4 Hutton Centre, Suite 800\nSanta Ana, CA 92707\nAttention: Mr. William R. Stow, III\nPresident and Chief Operating Officer\nPhone:\nFacsimile: 714-445-4404\n6\nEXHIBIT A\nSubject to the terms and conditions of the Agreement, the Receiving Party may use the Confidential Information solely for the purpose\nof\nevaluating the following contemplated business opportunity or transaction with the Disclosing Party:\nDiscussions regarding potential strategic business transaction.	EX-99.(D)(3) 14 dex99d3.htm BUSINESS DEVELOPMENT MUTUAL NONDISCLOSURE AGRMNT\n[LOGO]\nBUSINESS DEVELOPMENT MUTUAL NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated and effective as of September 17, 2001 (the “Effective Date”), by and between\nBorland Software Corporation, a Delaware corporation, (“BORLAND”) and Starbase Corporation, a Delaware corporation (“Company”).\nRECITALS\nA. In connection with the evaluation or pursuit of certain mutually beneficial business opportunities, BORLAND and Company may disclose\nvaluable proprietary information to each other relating to their respective operations and business.\nB. BORLAND and Company would like to protect the confidentiality of, maintain their respective rights in and prevent the unauthorized use and\ndisclosure of; such information.\nIN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE\nDISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO, INTENDING TO BE LEGALLY BOUND HEREBY AGREE\nAS FOLLOWS:\n1. Confidential Information. As used in this Agreement, “Confidential Information” means all information of either party that is not\ngenerally known to the public, whether of a technical, business or other nature, in tangible or intangible form, including, without limitation,\ninformation, data, records, plans, concepts and matters relating to customers and vendors, agreements, business records including, without\nlimitation, business records relating to intellectual property, marketing and sales plans, pricing and other business strategies (whether or not\nimplemented); research and development plans or projects; computer materials such as programs, instructions and printouts; software\nincluding, without limitation, any source codes, object codes, algorithms and other engineering information; formulas; business improvements\nand processes; information regarding the skills and compensation of executives; intellectual property rights and strategies including, without\nlimitation, any work on patents, trademarks, tradenames or universal resource locators, prior to any filing or the use thereof in commerce;\nfinancing terms and strategies; in each case together with all reports, summaries, studies, notes, compilations, analyses and other\ndocumentation which contain or otherwise reflect or are generated from any of the foregoing, and in each case regardless of the media in\nwhich the information is maintained, that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) or that is\notherwise learned by the Receiving Party in the course of its discussions or business dealings with, or its physical or electronic access to the\npremises of, the Disclosing Party, and that has been identified as being proprietary and/or confidential or that by the nature of the\ncircumstances surrounding the disclosure or receipt ought to be treated as proprietary and confidential. Confidential Information also includes\nall information concerning the existence and progress of the parties’ dealings and the identity of BORLAND employees, customers, vendors\nand/or strategic partners.\n2. Use and Ownership of Confidential Information. The Receiving Party, except as expressly provided in this Agreement, will not\ndisclose Confidential Information to anyone without the Disclosing Party’s prior written consent. The Receiving Party agrees to use reasonable\ncare, but in no event no less than the same degree of care that it uses to protect its own confidential and proprietary information of similar\nimportance, to prevent the unauthorized use, disclosure, publication or dissemination of Confidential Information. The Receiving Party will\nrefrain from reverse engineering, decompiling or disassembling any software code and/or pre-release hardware devices disclosed by the\nDisclosing Party under the terms of this Agreement, except as expressly permitted by applicable law. In addition, the Receiving Party will not\nuse, or permit others to use, Confidential Information for any purpose other than the sole purpose described in Exhibit “A” attached hereto and\nmade a part hereof.\nAll Confidential Information will remain the exclusive property of the Disclosing Party, and the Receiving Party will have no rights, by\nlicense or otherwise, to use the Confidential Information except as expressly provided herein. The Receiving Party will not file any copyright\nregistrations, patent, or trademark applications or similar registrations of ownership on the Disclosing Party’s Confidential Information. In the\nevent the Receiving Party does so in violation of this Agreement, the Receiving Party will assign to the Disclosing Party such registrations and\napplications. Subject to the Receiving Party’s patents, trademarks and copyrights, the Disclosing Party is free to\nuse and incorporate in the Disclosing Party’s products any ideas, suggestions or recommendations provided by the Receiving Party regarding\nthe Disclosing Party’s Confidential Information, without payment of royalties or other consideration to the Receiving Party.\n3. Exceptions.\n“Confidential Information” shall not include any information that (i) is or subsequently becomes publicly available\nwithout breach of this Agreement by the Receiving Party or any other party that is subject to a nondisclosure agreement with the Disclosing\nParty; (ii) can be shown by documentation to have been known to the Receiving Party prior to its receipt from the Disclosing Party and which\nwas not received by a party that is subject to a non-disclosure agreement with the Disclosing Party; (iii) is received by the Receiving Party\nfrom a third party who did not acquire or disclose such information in breach of a nondisclosure agreement with the Disclosing Party or other\nwrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by the Receiving Party without\nreference to any Confidential Information.\n4. Non-disclosure of Negotiations. Except as permitted by this Agreement and except as expressly permitted by a definitive written\nagreement, or as required by applicable law or regulation or the rules of the Nasdaq Stock Market, if any, entered into by Company and\nBORLAND with respect to a transaction (the “Definitive Transaction Agreement”), neither Company or its Representatives (as defined\nbelow), on the one hand, nor BORLAND or its Representatives, on the other hand, will disclose to any person (who is not a Representative of\nCompany or BORLAND) the fact that any Confidential Information has been made available to either party or any of the party’s\nRepresentatives. Except with the prior written consent of the other party hereto and except as expressly permitted by a Definitive Transaction\nAgreement, if any, entered into between Company and BORLAND, neither Company or its Representatives, on the one hand, nor BORLAND\nor its Representatives, on the other hand, will disclose the fact that any discussions or negotiations are taking place concerning a possible\ntransaction, including, without limitation, the status of such discussions or negotiations.\n5. Disclosures to Governmental Entities. If the Receiving Party becomes legally obligated to disclose Confidential Information by\nany governmental entity with competent jurisdiction over it, the Receiving Party will give the Disclosing Party prompt written notice to allow\nthe Disclosing Party to seek a protective order or other appropriate remedy. Such notice must include, without limitation, identification of the\ninformation to be so disclosed and a copy of the order. The Receiving Party will disclose only such information as is legally required and will\nuse its reasonable best efforts to obtain confidential treatment for any Confidential Information that is so disclosed.\n6. Compliance Exportation/Transmission of Confidential Information. The Receiving Party certifies that no Confidential\nInformation, or any portion thereof, will be exported to any country in violation of the United States Export Administration Laws and\nRegulations thereunder, or any other applicable export control laws or regulations as they currently exist and as they may be amended from\ntime to time.\n7. Receiving Party Personnel. The Receiving Party will restrict the possession, knowledge, development and use of Confidential\nInformation to its employees, agents, subcontractors and entities controlled by or controlling it (collectively, “Personnel”) who have a\nreasonable need to know the Confidential Information in connection with the purposes set forth in Section 2. The Receiving Party’s Personnel\nwill have access only to the Confidential Information they reasonably need for such purposes. The Receiving Party will ensure that its\nPersonnel comply with this Agreement and will promptly notify the Disclosing Party of any unauthorized use or disclosure of confidential\nInformation or any other breach of this Agreement. The Receiving Party will cooperate with the Disclosing Party in every reasonable way to\nhelp the Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.\n8. Return of Confidential Information. Within ten (10) business days of receipt of the Disclosing Party’s written request, and at the\nDisclosing Party’s sole discretion, the Receiving Party will either return to the Disclosing Party all tangible Confidential Information, including\nbut not limited to all computer programs, documentation, notes, plans, drawings and copies thereof, or will provide the Disclosing Party with\nwritten certification that all such tangible Confidential Information has been destroyed.\n9. Independent Development. The Disclosing Party acknowledges that the Receiving Party may currently or in the future be\ndeveloping information internally, or receiving information from other parties, that is similar to the Confidential Information. Accordingly,\nnothing in this Agreement will be construed as a representation or agreement that the Receiving Party will not develop or have developed for it\nproducts, concepts, systems or techniques that are similar to or compete with the products, concepts,\n2\nsystems or techniques contemplated by or embodied in the Confidential Information, provided that the Receiving Party does not violate any of\nits obligations under this Agreement in connection with such development.\n10. Authority of the Parties to Enter into this Agreement. Each of Company and BORLAND represents and warrants to the other\nparty as follows: (a) that it has the corporate power and authority to enter into this Agreement and to perform its obligations hereunder; (b) its\nexecution, delivery and performance of this Agreement has been duly authorized in accordance with all corporate power and authority; and (c)\nthis Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability\nmay be limited by applicable bankruptcy, insolvency, moratorium, reorganization and other similar laws affecting creditor’s rights generally\nand by general equitable principles.\n11. No Warranty. The Disclosing Party warrants that it has the right to disclose the Confidential Information to the Receiving Party.\nOTHERWISE, ALL INFORMATION IS PROVIDED ON AN “AS IS” BASIS, AND WITHOUT ANY WARRANTY, EXPRESS OR\nIMPLIED, WITH RESPECT TO THE CONFIDENTIAL INFORMATION AND HEREBY EXPRESSLY DISCLAIM ANY AND ALL\nIMPLIED WARRANTIES OR WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO\nEVENT SHALL THE DISCLOSING PARTY BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL\nDAMAGES IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OR USE OF ANY PORTION OF THE\nCONFIDENTIAL INFORMATION.\n12. Contact Person; Non-Solicitation. Until the earlier to occur of (i) the execution by the parties of the Definitive Transaction\nAgreement; or (ii) one (1) year from the date of termination of active negotiations that arose pursuant to this Agreement, each of Company and\nBORLAND agrees not to initiate or maintain contact (except for those contacts made in the ordinary course of business) with any officer,\ndirector, employee, Representative or agent of the other party hereto or any of its subsidiaries regarding its business, assets, operations,\nprospects or finances, except with the prior written consent of the other party hereto. It is understood that officers of each of Company and\nBORLAND will arrange for appropriate designated contact persons at each entity for purposes of facilitating the due diligence process. It is\nfurther understood that all (i) communications regarding the possible transaction, (ii) requests for additional information, (iii) requests for\nmeetings with officers or directors of each of Company and BORLAND and its subsidiaries and (iv) discussions or questions regarding\nprocedures will be submitted or directed to the designated contact person at Company or BORLAND, as the case may be.\nWithout the prior written consent of the other party hereto, neither Company nor BORLAND, as the case may be, for a period\ncommencing on the date of this agreement and terminating one (1) year after the date of the cessation of negotiations between Company and\nBORLAND regarding a possible transaction, shall hire any person who is now or any time during such period was, a senior management or\nkey employee of the other party hereto who was involved in the negotiation and/or exchange of information between the Company and\nBORLAND.\n14. Additional Terms.\n(a) The parties hereby acknowledge that they are aware, and that they will advise their Representatives (as defined below) who are\ninformed as to the matters which are the subject of this Agreement, that the United States securities laws may prohibit any person who has\nreceived from an issuer material, non-public information concerning the matters which are the subject of this Agreement from purchasing or\nselling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably\nforeseeable that such person is likely to purchase or sell such securities. As used in this Agreement, the term “Representatives” means, as to\nany person, such person’s affiliates and its and their directors, officers, employees, partners, subsidiaries, affiliates, agents, advisors (including,\nwithout limitation, attorneys, accountants, consultants, bankers, appraisers and financial advisors), controlling persons, potential financing\nsources or other representatives. The term “person” as used in this Agreement shall be broadly interpreted to include any corporation, limited\nliability company, partnership, group, individual or other entity (including the media).\n(b) The parties acknowledge and agree that each party reserves the right, in its sole discretion, (i) to reject any and all proposals made by\nthe other party or any of its Representatives with regard to any potential transaction between or involving both parties and (ii) to terminate\ndiscussions and negotiations with the other party at any time and return all Confidential Information.\n(c) Both parties understand and agree that no contract or agreement providing for any transaction shall be deemed to exist between the\nparties unless and until a definitive agreement has been executed and delivered by the parties.\n3\n15. Injunctive Relief. The Receiving Party acknowledges that disclosure or use of Confidential Information in violation of this\nAgreement could cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an inadequate\nremedy. The Receiving Party therefore agrees that the Disclosing Party will have the right, in addition to its other rights and remedies, to seek\ninjunctive relief for any violation of this Agreement without posting any security bond, or by posting bond at the lowest amount required by\nlaw.\n16. Limited Relationship. This Agreement will not create a joint venture, partnership or other formal business relationship or entity\nof any kind, or an obligation to form any such relationship or entity. Each party will act as an independent contractor and not as an agent of the\nother party for any purpose, and neither will have the authority to bind the other.\n17. Cumulative Obligations. Each party’s obligations hereunder are in addition to, and not exclusive of, any and all of its other\nobligations and duties to the other party, whether express, implied, in fact or in law.\n18. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties relating to the matters\ndiscussed herein and supersedes all prior or contemporaneous oral and written understandings, agreements and arrangements with respect to\nany information disclosed or received under this Agreement. This Agreement may be amended or modified only with the mutual written\nconsent of the parties.\n19. Assignment. This Agreement is not assignable by either party without the prior written consent of the other party; provided that\nBORLAND or the Company, respectively, may assign this Agreement to any successor to all or substantially all of its business or assets. Any\nattempted assignment without such consent shall be ab initio null and void and of no force or effect. This agreement shall be binding upon and\ninure to the benefit of the parties hereto and their respective successors and permitted assigns. This agreement may not be amended, modified,\naltered or waived, except by an instrument in writing signed by each of Company and BORLAND.\n20. Term and Termination. This Agreement is intended to cover Confidential Information disclosed or received by either party prior\nor subsequent to the date of this Agreement. Unless otherwise earlier terminated, this Agreement automatically will expire three (3) years from\nthe date first written above; provided, however, that each party’s obligations with respect to the other party’s Confidential Information\ndisclosed or received prior to termination or expiration will survive for two (2) additional years following the expiration or termination of this\nAgreement.\nEither party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All\nsections of this Agreement relating to the rights and obligations of the parties concerning confidential Information disclosed during the term of\nthe Agreement shall survive any such termination.\n21. Nonwaiver. Any failure by either party to enforce the other party’s strict performance of any provision of this Agreement will not\nconstitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.\n22. Attorney Fees. In the event any court action is commenced by one party against the other, the substantially prevailing party is\nentitled to recover its out-of-pocket and court costs and reasonable attorneys’ fees. The cost of in-house legal staff will be valued at market\nrates for comparable services from private practitioners.\n23. Governing Law. This Agreement will be construed in accordance with and governed by the laws of the State of California and the\nUnited States of America that would be applied to contracts entered into between California residents to be performed entirely within\nCalifornia without regard to the conflicts or choice of law rules of such state or of any other jurisdiction.\n24. Severability. If a provision of this Agreement is held invalid under any applicable law, such invalidity will not affect any other\nprovision of this Agreement that can be given effect without the invalid provision. Further, all terms and conditions of this Agreement will be\ndeemed enforceable to the fullest extent permissible under applicable law, and, when necessary, the court is requested to reform any and all\nterms or conditions to give them such effect.\n25. Jurisdiction; Waiver of Jury Trial Each of the parties hereto irrevocably agrees that any action, suit, claim or other legal\nproceeding with respect to this Agreement shall be brought and determined in any court located in the County of Santa Clara in the State of\nCalifornia or of the State of California located in the County of Santa Clara (or any appeals courts thereof). The parties hereby submit to\npersonal jurisdiction and venue in connection with any action brought to enforce or arising out of this Agreement in the County of Santa Clara,\nState of California or the Northern District of California. Each party hereby waives its right to a jury trial for any claims that may arise out of\nthis Agreement.\n4\n26. Service of Process. The parties agree that the delivery of process or other papers in connection with any such action or proceeding\nin the manner provided in Section 21 hereof, or in such other manner as may be permitted by applicable law, shall be valid and sufficient\nservice thereof.\n27. Notices. All notices, requests and other communications provided for in this Agreement shall be in writing, and shall be deemed to\nhave been duly given (a) on the date of delivery when delivered in person, including a courier service, (b) upon receipt if delivered by certified\nmail, return receipt requested, postage prepaid, or (c) upon receipt if sent by facsimile transmission, provided that any notice received by\ntelecopy or otherwise at the addressee’s location on any business day after 5:00 p.m . (addressee’s local time) shall be deemed to have been\nreceived at 9:00 a.m. (addressee’s local time) on the next business day. Either party to this Agreement may notify the other party of any\nchanges to the address or any of the other details specified in this paragraph, provided that such notification shall only be effective on the date\nspecified in such notice or five (5) business days after the notice is given, whichever is later. Rejection or other refusal to accept or the inability\nto deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice as of the date of such rejection,\nrefusal or inability to deliver. All notices hereunder shall be delivered or faxed, as the case may be, to the addresses and/or facsimile numbers\nset forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice.\n28. Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts, each of which shall be\ndeemed to be an original, and all of which together shall constitute one and the same document, and shall become effective when one or more\ncounterparts have been signed by each of the parties and delivered to the other parties. This Agreement may be executed by facsimile\nsignatures.\nThe parties acknowledge and agree that neither of the parties is entering into this Agreement on the basis of any representation or promise not\nexpressly contained herein.\n[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]\n5\nUnderstood and Agreed to by the duly authorized representatives of the parties as evidenced by their respective signatures below. The parties\nhave executed this Agreement as of the date first written above.\nBORLAND SOFTWARE CORPORATION\nBy:\n/s/ DOUG BARRE\nPrint Name:\nDoug Barre\nTitle:\nCOO\nDate:\nSept 17/01\nMailing Address:\n100 Enterprise Way\nScotts Valley, CA 95066-3249\nPhone: 831-431 -1000\nFacsimile: 831-431-4171, Legal Department\nName of Company: Starbase Corporation\nBy:\n/s/ WILLIAM R. STOW III\nPrint Name:\nWilliam R. Stow III\nTitle:\nCEO\nDate:\n9-14-2001\nMailing Address:\n4 Hutton Centre, Suite 800\nSanta Ana, CA 92707\nAttention: Mr. William R. Stow, III\nPresident and Chief Operating Officer\nPhone:\nFacsimile: 714-445-4404\n6\nEXHIBIT A\nSubject to the terms and conditions of the Agreement, the Receiving Party may use the Confidential Information solely for the purpose of\nevaluating the following contemplated business opportunity or transaction with the Disclosing Party:\nDiscussions regarding potential strategic business transaction.
+da2a358405413641a270ae9004d0e7ff.pdf	effective_date jurisdiction party term	EX-10.2 3 d524844dex102.htm NON-SOLICITATION AND NON-COMPETE AGREEMENT\nExhibit 10.2\nCONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETE AGREEMENT\nThis Confidentiality, Non-Solicitation and Non-Compete Agreement (the “Agreement”) dated this 22nd day of April, 2013 is entered into by\nand between Steven A Ross (“Employee”) and NeoGenomics, Laboratories Inc., a Florida corporation (“Employer” and collectively with\nNeoGenomics, Inc., a Nevada corporation (the “Parent Company”) and any entity that is wholly or partially owned by the Employer or the Parent\nCompany or otherwise affiliated with the Parent Company, the “Company”). Hereinafter, each of the Employee or the Company maybe referred to\nas a “Party” and together be referred to as the “Parties”.\nRECITALS:\nWHEREAS, the Parties have entered into that certain letter agreement of even date herewith that creates an employment relationship between\nthe Employer and Employee (the “Employment Agreement”); and\nWHEREAS, pursuant to the Employment Agreement, the Employee agreed to enter into the Company’s Confidentiality, Non-Solicitation and\nNon-Compete Agreement; and\nWHEREAS, the Company desires to protect and preserve its Confidential Information and its legitimate business interests by having the\nEmployee enter into this Agreement as part of the Employment Agreement; and\nWHEREAS, the Employee desires to establish and maintain an employment relationship with the Company and as part of such employment\nrelationship desires to enter into this Agreement with the Company; and\nWHEREAS, the Employee acknowledges that the terms of the Employment Agreement including, but not limited to the Company’s\ncommitments to the Employee with respect to base salary, fringe benefits and stock options are sufficient consideration to the Employee for the entry\ninto this Agreement.\nWHEREAS, the Employee acknowledges that substantial cost and expense has been or will be incurred by the Company for Employee’s\ntraining, and Employee’s training and employment have caused, or will require, the disclosure of certain Company confidential and proprietary\ninformation, trade secrets and customer and supplier relationships.\nNOW, THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and\nsufficiency of which are hereby acknowledged, the Parties agree as follows:\n1. Term. Employee agree(s) that the term of this Agreement is effective upon the Employee’s first day of employment with the Company and shall\nsurvive and continue to be in force and effect for two years following the termination of any employment relationship between the Parties (“Term”),\nwhether termination is by the Company with or without cause, wrongful discharge, or for any other reason whatsoever, or by the Employee unless an\nexception is specifically provided in certain situations in any such Restrictive Covenants.\nEMPLOYEE’S INITIALS\n/s/ SR\n1\n2. Definitions.\na. The term “Confidential Information” as used herein shall include all business practices, methods, techniques, or processes that: (i) derives\nindependent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other\npersons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to\nmaintain its secrecy. Confidential Information also includes, but is not limited to, files, letters, memoranda, reports, records, computer disks or other\ncomputer storage medium, data, models or any photographic or other materials containing such information, Customer lists and names and other\ninformation, Customer contracts, other corporate contracts, computer programs, proprietary technical information and or strategies, sales,\npromotional or marketing plans or strategies, programs, techniques, practices, any expansion plans (including plans to enter into new geographic\nand/or product markets), pricing information, product or service offering specifications or plans thereof, business plans, financial information and\nother financial plans, data pertaining to the Company’s operating performance, employee lists, salary information, Personal Information, Protected\nHealth Information, all information the Company receives from customers or other third parties that is not generally known to the public or is subject\nto a confidentiality agreement, training manuals, and other materials and business information of a similar nature, including information about the\nCompany itself or any affiliated entity, which Employee acknowledges and agrees has been compiled by the Company’s expenditure of a great\namount of time, money and effort, and that contains detailed information that could not be created independently from public sources. Further, all\ndata, spreadsheets, reports, records, know-how, verbal communication, proprietary and technical information and/or other confidential materials of\nsimilar kind transmitted by the Company to Employee or developed by the Employee on behalf of the Company as Work Product (as defined in\nParagraph 7) are expressly included within the definition of “Confidential Information.” The Parties further agree that the fact the Company may be\nseeking to complete a business transaction is “Confidential Information” within the meaning of this Agreement, as well as all notes, analysis, work\nproduct or other material derived from Confidential Information. Nevertheless, Confidential Information shall not include any information of any\nkind which (1) is in the possession of the Employee prior to the date of this Agreement, as shown by the Employee’s files and records, or (2) prior or\nafter the time of disclosure becomes part of the public knowledge or literature, not as a result of any violation of this Agreement, any violation of any\nsimilar agreement with any other party or inaction or action of the receiving party, or (3) is rightfully received from a third party without any\nobligation of confidentiality; or (4) independently developed after termination without reference to the Confidential Information or materials based\nthereon; or (5) is disclosed pursuant to the order or requirement of a court, administrative agency, or other government body; or (6) is approved for\nrelease by the non-disclosing party.\nb. The term “Personal Information” (“PI”) is Confidential Information and includes, but is not limited to, an individual’s first name and last\nname or first initial and last name in combination with any of the following: an individual’s social security number, tax I.D . number, social insurance\nnumber, driver’s license number, state issued identification card number, financial information, healthcare information, or credit or debit card\nnumber.\nc. The term “Protected Health Information” (“PHI”) is Confidential Information and includes information that is created, received, and/or\nmaintained by the Company related to an individual’s health care (or payment related to health care) that directly or indirectly identifies the\nindividual.\nEMPLOYEE’S INITIALS\n/s/ SR\n2\nd. The term “Customer” shall mean any person or entity which has purchased or ordered goods, products or services from the Company\nand/or entered into any contract for products or services with the Company within the one (1) year immediately preceding the termination of the\nEmployee’s employment with the Company.\ne. The term “Prospective Customer” shall mean any person or entity which has evidenced an intention to order products or services with the\nCompany within one year immediately preceding the termination of the Employee’s employment with the Company.\nf. The term “Restricted Area” shall include any geographical location anywhere in the United States. If the Restricted Area specified in this\nAgreement should be judged unreasonable in any proceeding, then the Restricted Area shall be reduced so that the restrictions may be enforced as is\njudged to be reasonable.\ng. The phrase “directly or indirectly” shall include the Employee either on his/her own account, or as a partner, owner, promoter, joint\nventurer, employee, agent, consultant, advisor, manager, executive, independent contractor, officer, director, or a stockholder of 5% or more of the\nvoting shares of an entity in the Business of Company.\nh. The term “Business” shall mean the business of providing non-academic, for-profit cancer genetic and molecular laboratory testing services,\nincluding, but not limited to, cytogenetics, flow cytometry, fluorescence in-situ hybridization (“FISH”), morphological studies, and molecular\ntesting, to hematologists, oncologists, urologists, pathologists, hospitals and other medical reference laboratories.\n3. Duty of Confidentiality.\na. All Confidential Information is considered highly sensitive and strictly confidential. The Employee agrees that at all times during the term of\nthis Agreement and after the termination of employment with the Company for as long as such information remains non-public information, the\nEmployee shall (i) hold in confidence and refrain from disclosing to any other party all Confidential Information, whether written or oral, tangible or\nintangible, concerning the Company and its business and operations unless such disclosure is accompanied by a non-disclosure agreement executed\nby the Company with the party to whom such Confidential Information is provided, (ii) use the Confidential Information solely in connection with\nhis or her employment with the Company and for no other purpose, (iii) take all reasonable precautions necessary to ensure that the Confidential\nInformation shall not be, or be permitted to be, shown, copied or disclosed to third parties, without the prior written consent of the Company,\n(iv) observe all security policies implemented by the Company from time to time with respect to the Confidential Information, and (v) not use or\ndisclose, directly or indirectly, as an individual or as a partner, joint venturer, employee, agent, salesman, contractor, officer, director or otherwise,\nfor the benefit of himself or herself or any other person, partnership, firm, corporation, association or other legal entity, any Confidential\nInformation, unless expressly permitted by this Agreement. Employee agrees that protection of the Company’s Confidential Information constitutes\na legitimate business interest justifying the restrictive covenants contained herein. Employee further agrees that the restrictive covenants contained\nherein are reasonably necessary to protect the Company’s legitimate business interest in preserving its Confidential Information. In addition,\nEmployee will not view or access any PI or PHI unless required by the Company in the course Employee’s job duties and responsibilities for the\nCompany and then only when authorized by the Company to do so. Employee acknowledges that he/she shall bear all costs, losses and damages\nresulting from any intentional breach of this paragraph, to the fullest extent permitted by applicable law.\nEMPLOYEE’S INITIALS\n/s/ SR\n3\nb. In the event that the Employee is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding or otherwise,\nsuch disclosure shall be limited to the narrowest disclosure so required and, except to the extent prohibited by law, Employee shall give the\nCompany at least two (2) weeks’ notice, if practicable, of the basis for any such compelled disclosure of Confidential Information and shall\nreasonably cooperate with the Company in limiting disclosure and obtaining suitable confidentiality protections.\nc. Employee acknowledge(s) that this “Confidential Information” is of value to the Company by providing it with a competitive advantage\nover their competitors, is not generally known to competitors of the Company, and is not intended by the Company for general dissemination.\nEmployee acknowledges that this “Confidential Information” derives independent economic value, actual or potential, from not being generally\nknown to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is the\nsubject of reasonable efforts to maintain its secrecy. Therefore, the Parties agree that all “Confidential Information” under this Agreement constitutes\n“Trade Secrets” under Section 688.002 and Chapter 812 of the Florida Statutes.\n4. Limited Right of Disclosure. Except as otherwise permitted by this Agreement, Employee shall limit disclosure of pertinent Confidential\nInformation to Employee’s attorney, if any (“Representative(s)”), for the sole purpose of evaluating Employee’s relationship with the Company.\nParagraph 3 of this Agreement shall bind all such Representative(s).\n5. Return of Company Property and Confidential Materials. All tangible property, including cell phones, laptop computers and other Company\npurchased property, as well as all Confidential Information, Customer and Prospective Customer information and property, provided to Employee is\nthe exclusive property of the Company and must be returned to the Company in accordance with the instructions of the Company either upon\ntermination of the Employee’s employment or at such other time as is requested by the Company. Employee agree(s) that upon termination of\nemployment for any reason whatsoever Employee shall return all copies, in whatever form or media, including hard copies and electronic copies, of\nConfidential Information to the Company, and Employee shall delete any copy of the Confidential Information on any computer file or database\nmaintained by Employee and shall certify in writing that he/she has done so. In addition to returning all Confidential Information to the Company as\ndescribed above, Employee will destroy any analysis, notes, work product or other materials relating to or derived from the Confidential\nInformation. Any retention of Confidential Information may constitute “civil theft” as such term is defined in Chapter 772 of the Florida Statutes.\n6. Agreement Not To Circumvent. Employee agrees not to pursue any transaction or business relationship that is directly competitive to the\nBusiness of the Company that makes use of any Confidential Information during the Term of this Agreement, other than through the Company or on\nbehalf of the Company. It is further understood and agreed that, after the Employee’s employment with the Company has been terminated, the\nEmployee will direct all communications and requests from any third parties regarding Confidential Information or Business opportunities which use\nConfidential Information through the Company’s then chief executive officer or president. Employee acknowledges that any violation of this\ncovenant may subject Employee to the remedies identified in Paragraph 9 in addition to any other available remedies.\n7. Title to Work Product. Employee agrees that all work products (including strategies and testing methodologies for competing in the genetics\ntesting industry, technical materials and diagrams, computer programs, financial plans and other written materials, websites, presentation materials,\ncourse materials, advertising campaigns, slogans, videos, pictures and other materials) created or developed by the Employee for the Company\nduring the term of the Employee’s employment with the Company or any successor to the Company until the date of termination of the Employee\n(collectively, the “Work Product”), shall be considered a work made for hire and that the Company shall be the sole owner of all rights, including\ncopyright, in and to the Work Product.\nEMPLOYEE’S INITIALS\n/s/ SR\n4\nIf the Work Product, or any part thereof, does not qualify as a work made for hire, the Employee agrees to assign, and hereby assigns, to the\nCompany for the full term of the copyright and all extensions thereof all of its right, title and interest in and to the Work Product. All discoveries,\ninventions, innovations, works of authorship, computer programs, improvements and ideas, whether or not patentable or copyrightable or otherwise\nprotectable, conceived, completed, reduced to practice or otherwise produced by the Employee in the course of his or her services to the Company in\nconnection with or in any way relating to the Business of the Company or capable of being used or adapted for use therein or in connection therewith\nshall forthwith be disclosed to the Company and shall belong to and be the absolute property of the Company unless assigned by the Company to\nanother entity.\nEmployee hereby assigns to the Company all right, title and interest in all of the discoveries, inventions, innovations, works of authorship,\ncomputer programs, improvements, ideas and other work product; all copyrights, trade secrets, and trademarks in the same; and all patent\napplications filed and patents granted worldwide on any of the same for any work previously completed on behalf of the Company or work\nperformed under the terms of this Agreement or the Employment Agreement. Employee, if and whenever required to do so (whether during or after\nthe termination of his or her employment), shall at the expense of the Company apply or join in applying for copyrights, patents or trademarks or\nother equivalent protection in the United States or in other parts of the world for any such discovery, invention, innovation, work of authorship,\ncomputer program, improvement, and idea as aforesaid and execute, deliver and perform all instruments and things necessary for vesting such\npatents, trademarks, copyrights or equivalent protections when obtained and all right, title and interest to and in the same in the Company absolutely\nand as sole beneficial owner, unless assigned by the Company to another entity. Notwithstanding the foregoing, work product conceived by the\nEmployee, which is not related to the Business of the Company, will remain the property of the Employee.\n8. Restrictive Covenant. The Company and its affiliated entities are engaged in the Business of providing genetic and molecular testing services.\nThe covenants contained in this Paragraph 8 (the “Restrictive Covenants”) are given and made by Employee to induce the Company to employ\nEmployee under the terms of the Employment Agreement, and Employee acknowledges sufficiency of consideration for these Restrictive Covenants.\nEmployee expressly covenants and agrees that, during his or her employment and for a period of two (2) years following termination of such\nemployment (such period of time is hereinafter referred to as the “Restrictive Period”), he/she will abide by the following restrictive covenants\nunless an exception is specifically provided, in writing signed by Company, in certain situations in such Restrictive Covenants.\na.\nNon-Solicitation. Employee agrees and acknowledges that, during the Restrictive Period, he/she will not, directly or indirectly, in one or\na series of transactions, as an individual or as a partner, joint venturer, employee, agent, salesperson, contractor, officer, director or\notherwise, for the benefit of himself or herself or any other person, partnership, firm, corporation, association or other legal entity:\n(i) solicit or induce, or attempt to solicit or induce, any Customer or Prospective Customer of the Company to patronize or do\nbusiness with any other company (or business) that is in the Business conducted by the Company in the Restricted Area; or\nEMPLOYEE’S INITIALS\n/s/ SR\n5\n(ii) request or advise any Customer, supplier or vendor, or any Prospective Customer, prospective supplier or prospective vendor, of\nthe Company, who was a Customer, Prospective Customer, supplier, prospective supplier, vendor or prospective vendor within\none year immediately preceding the termination of the Employee’s employment with the Company, to withdraw, curtail, cancel or\nrefrain from doing business with the Company in any capacity; or\n(iii) manage, operate, be connected with, employed by, sell goods to, or perform services for, or on behalf of, in any manner, any\nCustomer, or Prospective Customer, of the Company either myself or on behalf of any other entity that may employ, engage or\nassociate with me in any fashion.\n(iv)\nrecruit, solicit or otherwise induce any proprietor, partner, stockholder, lender, director, officer, employee, sales agent, joint\nventurer, investor, lessor, supplier, Customer, agent, representative or any other person which has a business relationship with the\nCompany or any Affiliated Entity to discontinue, reduce or detrimentally modify such employment, agency or business\nrelationship with the Company; or\n(v)\nemploy or solicit, or attempt to employ or solicit, for employment any person or agent who is then (or was at any time within\ntwelve (12) months prior to the date Employee or any entity related to Employee seeks to employ such person) employed or\nretained by the Company. Notwithstanding the forgoing, to the extent the Employee works for a larger firm or corporation after\nhis or her termination from the Company and he or she does not have any personal knowledge and/or control over the solicitation\nof or the employment of a Company employee or agent, then this provision shall not be enforceable as it relates to that employee.\nb. Non-Competition. Employee agrees and acknowledges that, during the Restrictive Period, he or she will not, directly or indirectly, for\nhimself , or on behalf of others, as an individual on Employee’s own account, or as a partner, joint venturer, employee, agent, salesman,\ncontractor, officer, director or otherwise, for him/herself or any other person, partnership, firm, corporation, association or other legal\nentity, enter into, engage in, accept employment from, or provide any services to, or for, any business that is in the Business of the\nCompany, or engage in any activity that is competitive with the Company, in the Restricted Area. The parties agree that this non-\ncompetition provision is intended to cover situations where a future business opportunity in which the Employee is engaged or a future\nemployer of the Employee is selling the same or similar products and services in a Business which may compete with the Company’s\nproducts and services to Customers and Prospective Customers of the Company in the Restricted Area. This provision shall not cover\nfuture business opportunities or employers of the Employee that sell different types of products or services in the Restricted Area so long\nas such future business opportunities or employers are not in the Business of the Company.\nNotwithstanding the preceding paragraphs, the spirit and intent of this non-competition clause is not to deny the Employee the ability to\nsupport his or her family, but rather to prevent the Employee from using the knowledge and experiences obtained from the Company in a\nsimilar competitive environment. Along those lines, should the Employee leave the employment of the Employer for any reason, he or\nshe would be prohibited from joining a for-profit cancer testing genetics laboratory and/or company in the Business of the Company in\nthe Restricted Area. The Parties agree that all non-profit medical testing laboratories, hospitals and academic institutions as well as for-\nprofit prenatal and pediatric/constitutional genetic testing laboratories\nEMPLOYEE’S INITIALS\n/s/ SR\n6\nare excluded from the restrictions in paragraph 8(b). In other words, the Employee would be allowed under this non-compete clause to\nwork in any non-profit cancer genetics testing laboratory (e.g., in academia) as well as in a private, for-profit prenatal laboratory or\npediatric/constitutional genetics testing laboratory. Thus, the spirit and intent of this non-competition clause is intended to prevent the\nEmployee from acting in any of the capacities outlined in this paragraph for any “for-profit” cancer genetics testing laboratories that do\nthe type of any one or more of the types of testing defined in the definition of Business in the Restricted Area.\n9. Acknowledgements of Employee.\na.\nThe Employee understands and acknowledges that any violation of this Agreement shall constitute a material breach of this Agreement\nand the Employment Agreement, and it will cause irreparable harm and loss to the Company for which monetary damages will be an\ninsufficient remedy. Therefore, the Parties agree that in addition to any other remedies available, the Company will be entitled to the\nrelief identified in Paragraph No. 10. below.\nb. The Restrictive Covenants shall be construed as agreements independent of any other provision in this Agreement and the existence of\nany claim or cause of action of Employee against the Company shall not constitute a defense to the enforcement of these Restrictive\nCovenants.\nc.\nEmployee agrees that the Restrictive Covenants are reasonably necessary to protect the legitimate business interests of the Company.\nd. Employee agrees that this Agreement may be enforced by the Company’s successor in interest by way of merger, business combination\nor consolidation where a majority of the surviving entity is not owned by Company’s shareholders who owned a majority of the\nCompany’s voting shares prior to such transaction and Employee acknowledges and agrees that successors are intended beneficiaries of\nthis Agreement.\ne.\nEmployee agrees that if any portion of the Restrictive Covenants is held by a court of competent jurisdiction to be unreasonable,\narbitrary or against public policy for any reason, such shall be modified accordingly as to time, geographic area and line of business so as\nto be enforceable to the fullest extent possible as to time, area and line of business.\nf. Employee acknowledges that any violations of the Agreement will be a material breach of this Agreement and may subject the\nEmployee, and/or any individual(s), partnership, corporation, joint venture or other type of business with whom the Employee is then\naffiliated or employed, to monetary and other damages.\ng. Employee agrees that any failure of the Company to enforce the Restrictive Covenants against any other employee, for any reason, shall\nnot constitute a defense to enforcement of the Restrictive Covenants against the Employee.\n10. Specific Performance; Injunction. The Parties agree and acknowledge that the restrictions contained in Paragraphs 1-8 are reasonable in scope\nand duration and are necessary to protect the Company. If any provision of Paragraphs 1-8 as applied to any party or to any circumstance is judged\nby a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the validity or enforceability of any other\nprovision of this Agreement. If any such provision, or any part thereof, is held to be unenforceable because of the duration of such provision or the\narea covered thereby,\nEMPLOYEE’S INITIALS\n/s/ SR\n7\nthe court making such determination shall have the power to reduce the duration and/or area of such provision, and/or to delete specific words or\nphrases, and in its reduced form, such provision shall then be enforceable and shall be enforced.\nAny unauthorized use or disclosure of Confidential Information in violation of Paragraphs 2-7 above or violation of the Restrictive Covenant\nin Paragraph 8 shall constitute a material breach of this Agreement and will cause irreparable harm and loss to the Company for which monetary\ndamages may be an insufficient remedy. Therefore, in addition to any other remedy available, the Company will be entitled to all available civil\nremedies, including:\na.\nTemporary and permanent injunctive relief, without the necessity of posting a bond, restraining Employee or Representatives and any\nother person, partnership, firm, corporation, association or other legal entity acting in concert with Employee from any actual or\nthreatened unauthorized disclosure or use of Confidential Information, in whole or in part, or from rendering any service to any other\nperson, partnership, firm, corporation, association or other legal entity to whom such Confidential Information in whole or in part, has\nbeen disclosed or used or is threatened to be disclosed or used; and\nb. Temporary and permanent injunctive relief, without the necessity of posting a bond, restraining the Employee from violating, directly or\nindirectly, the restrictions of the Restrictive Covenant in any capacity identified in Paragraph 8, supra, and restricting third parties from\naiding and abetting any violations of the Restrictive Covenant; and\nc.\nCompensatory damages, including actual loss from misappropriation and unjust enrichment, and any and all legal fees, including without\nlimitation, all attorneys’ fees, court costs, and any other related fees and/or costs incurred by the Company in enforcing this Agreement.\nNotwithstanding the forgoing, the Company acknowledges and agrees that the Employee will not be liable for the payment of any damages or\nfees owed to the Company through the operation of Paragraph 10c above, unless and until a court of competent jurisdiction has determined that the\nCompany or any successor is entitled to such recovery.\nNothing in this Agreement shall be construed as prohibiting the Company from pursuing any other legal or equitable remedies available to it\nfor actual or threatened breach of the provisions of Paragraphs 1 – 8 of this Agreement, and the existence of any claim or cause of action by\nEmployee against the Company shall not constitute a defense to the enforcement by the Company of any of the provisions of this Agreement. The\nCompany and its Affiliated Entities have fully performed all obligations entitling it to the covenants of Paragraphs 1 – 8 of this Agreement and\ntherefore such prohibitions are not executory or otherwise subject to rejection under the bankruptcy code.\n11. Duty to Disclose Agreement and to Report New Employer. Employee acknowledges that the Company has a legitimate business purpose in\nthe protection of its Confidential Information. Employee also recognizes and agrees that the Company has the right to such information as is\nreasonably necessary to inform the Company whether the terms of this Agreement are being complied with. Accordingly, Employee agrees that\nEmployee will promptly notify any new employer of his/her obligations contained here. Employee also will provide the Company with the identity\nof his/her new employer(s) and a description of the services being provided by him/her in sufficient detail to allow the Company to reasonably\ndetermine whether such activities fall within the scope of activities prohibited by the provisions of this Agreement\nEMPLOYEE’S INITIALS\n/s/ SR\n8\n12. Representations as to Prior or Other Agreements. Employee represents and warrants that he/she is able to perform the contemplated duties of\nemployment without being in breach of confidentiality agreements or disclosing proprietary information of any third party, and that no proprietary\ninformation of any third party shall be disclosed to the Company. Employee further represents and warrants that he/she is not prohibited from\nentering into this Agreement or performing services under it by any non-competition, non-solicitation, anti-piracy agreement, relationship\nagreement, or any other restrictions. Employee agrees to indemnify and hold the Company harmless from all claims or causes of action by any\nperson or entity against the Company arising out of any alleged breach by Employee of any such agreement or any other restrictions inconsistent\nwith the foregoing representations.\n13. Company Use of Employee Name, Image and Voice. The Company may use and publish Employee’s name and picture, including audio or\nvideo tape recordings, for purposes relating to its business without a specific release from Employee.\n14. Termination. Employee agrees to bring any claims that he/she may have against the Company within three hundred (300) days of the day that\nEmployee knew, or should have known, of the facts giving rise to the cause of action and waives any longer, but not shorter, statutory or other\nlimitations periods. This includes, but is not limited to, the initial filing of a charge with the Equal Employment Opportunity Commission and/or\nstate equivalent civil rights agency. However, Employee understands that he/she will thereafter have the right to pursue any federal claim in the\nmanner prescribed in any right to sue letter that is issued by an agency.\n15. Nondisparagement. Employee shall not make any disparaging or defamatory comments about the Company, whether true or not, except to\ncomply with any summons, court order or subpoena.\n16. Waiver of Jury Trial. THE COMPANY AND EMPLOYEE EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION\nOR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY INSTRUMENT,\nDOCUMENT OR AGREEMENT DELIVERED IN CONNECTION HEREWITH OR HEREAFTER OR RELATED IN ANY FASHION\nTO EMPLOYEE’S EMPLOYMENT WITH COMPANY.\n17. Governing Law, Venue and Personal Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the laws\nof state of Florida without regard to any statutory or common-law provision pertaining to conflicts of laws. The parties agree that courts of\ncompetent jurisdiction in Lee County, Florida and the United States District Court for the Southern District of Florida shall have concurrent\njurisdiction for purposes of entering temporary, preliminary and permanent injunctive relief and with regard to any action arising out of any breach\nor alleged breach of this Agreement. Employee waives personal service of any and all process upon Employee and consents that all such service of\nprocess may be made by certified or registered mail directed to Employee at the address stated in the signature section of this Agreement, with\nservice so made deemed to be completed upon actual receipt thereof. Employee waives any objection to jurisdiction and venue of any action\ninstituted against Employee as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue. Employee further agrees\nthat any action arising out of this Agreement or the relationship between the parties established herein shall be brought only in courts of competent\njurisdiction in Lee County, Florida or the United States District Court for the Southern District of Florida.\n18. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by\nEmployee. This Agreement shall inure to the benefit of Company’s successors.\nEMPLOYEE’S INITIALS\n/s/ SR\n9\n19. Entire Agreement. This Agreement is the entire agreement of the Parties with regard to the matters addressed herein, and supersedes all prior\nnegotiations, preliminary agreements, and all prior and contemporaneous discussions and understandings of the signatories in connection with the\nsubject matter of this Agreement, except however, that this Agreement shall be read in pari materia with the Employment Agreement executed by\nEmployee. This Agreement may be modified only by written instrument signed by the Company and Employee.\n20. Severability. In case any one or more provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in\nany respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such\ninvalid, illegal were unenforceable provision had not been contained herein.\n21. Waiver. The waiver by the Company of a breach or threatened breach of this Agreement by Employee cannot be construed as a waiver of any\nsubsequent breach by Employee unless such waiver so provides by its terms. The refusal or failure of the Company to enforce any specific restrictive\ncovenant in this Agreement against Employee, or any other person for any reason, shall not constitute a defense to the enforcement by the Company\nof any other restrictive covenant provision set forth in this Agreement.\n22. Consideration. Employee expressly acknowledges and agrees that the execution by the Company of the Employment Agreement with the\nEmployee constitutes full, adequate and sufficient consideration to Employee for the covenants of Employee under this Agreement.\n23. Notices. All notices required by this Agreement shall be in writing, shall be personally delivered or sent by U.S. Registered or Certified Mail,\nreturn receipt requested, and shall be addressed to the signatories at the addresses shown on the signature page of this Agreement.\n24. Acknowledgements. Employee acknowledge(s) that he or she has reviewed this Agreement prior to signing it, that he or she knows and\nunderstands the contents, purposes and effect of this Agreement, and that he or she has been given a signed copy of this Agreement for his or her\nrecords. Employee further acknowledges and agrees that he or she has entered into this Agreement freely, without any duress or coercion.\n25. Captions. Captions to paragraphs and sections of this Agreement have been included solely for the sake of convenient reference and are entirely\nwithout substantive effect.\n26. Counterparts. This Agreement may be executed in counterparts, by facsimile or Adobe Acrobat PDF file each of which shall be deemed an\noriginal for all intents and purposes.\n[Signatures Appear on the Following Page]\nEMPLOYEE’S INITIALS\n/s/ SR\n10\nIN WITNESS WHEREOF, THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND KNOW\nAND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY AGREE TO BE BOUND AND ABIDE BY THE REPRESENTATIONS,\nCOVENANTS, PROMISES AND WARRANTIES CONTAINED HEREIN.\nBy: /s/ Steven A. Ross\n4/19/13\nEmployee Signature\nDate\nEmployee Name:\nSteven A. Ross\nEmployee Address: 16520 S. Tamiami Tr 138-131\nFort Myers, FL 33908\nNeoGenomics Laboratories, Inc.\n12701 Commonwealth Drive, Suite #5\nFort Myers, FL 33913\nBy: /s/ Douglas M. VanOort\n4/19/13\nDate\nName: Douglas M. VanOort\nTitle: Chairman and CEO\nEMPLOYEE’S INITIALS\n/s/ SR\n11	EX-10.2 3 d524844dex102.htm NON-SOLICITATION AND NON-COMPETE AGREEMENT\nExhibit 10.2\nCONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETE AGREEMENT\nThis Confidentiality, Non-Solicitation and Non-Compete Agreement (the “Agreement”) dated this 22nd day of April, 2013 is entered into by\nand between Steven A Ross (“Employee”) and NeoGenomics, Laboratories Inc., a Florida corporation (“Employer” and collectively with\nNeoGenomics, Inc., a Nevada corporation (the “Parent Company”) and any entity that is wholly or partially owned by the Employer or the Parent\nCompany or otherwise affiliated with the Parent Company, the “Company”). Hereinafter, each of the Employee or the Company maybe referred to\nas a “Party” and together be referred to as the “Parties”.\nRECITALS:\nWHEREAS, the Parties have entered into that certain letter agreement of even date herewith that creates an employment relationship between\nthe Employer and Employee (the “Employment Agreement”); and\nWHEREAS, pursuant to the Employment Agreement, the Employee agreed to enter into the Company’s Confidentiality, Non-Solicitation and\nNon-Compete Agreement; and\nWHEREAS, the Company desires to protect and preserve its Confidential Information and its legitimate business interests by having the\nEmployee enter into this Agreement as part of the Employment Agreement; and\nWHEREAS, the Employee desires to establish and maintain an employment relationship with the Company and as part of such employment\nrelationship desires to enter into this Agreement with the Company; and\nWHEREAS, the Employee acknowledges that the terms of the Employment Agreement including, but not limited to the Company’s\ncommitments to the Employee with respect to base salary, fringe benefits and stock options are sufficient consideration to the Employee for the entry\ninto this Agreement.\nWHEREAS, the Employee acknowledges that substantial cost and expense has been or will be incurred by the Company for Employee’s\ntraining, and Employee’s training and employment have caused, or will require, the disclosure of certain Company confidential and proprietary\ninformation, trade secrets and customer and supplier relationships.\nNOW, THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and\nsufficiency of which are hereby acknowledged, the Parties agree as follows:\n1. Term. Employee agree(s) that the term of this Agreement is effective upon the Employee’s first day of employment with the Company and shall\nsurvive and continue to be in force and effect for two years following the termination of any employment relationship between the Parties (“Term”),\nwhether termination is by the Company with or without cause, wrongful discharge, or for any other reason whatsoever, or by the Employee unless an\nexception is specifically provided in certain situations in any such Restrictive Covenants.\nEMPLOYEE’S INITIALS\n/s/ SR\n2. Definitions.\na. The term “Confidential Information” as used herein shall include all business practices, methods, techniques, or processes that: (i) derives\nindependent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other\npersons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to\nmaintain its secrecy. Confidential Information also includes, but is not limited to, files, letters, memoranda, reports, records, computer disks or other\ncomputer storage medium, data, models or any photographic or other materials containing such information, Customer lists and names and other\ninformation, Customer contracts, other corporate contracts, computer programs, proprietary technical information and or strategies, sales,\npromotional or marketing plans or strategies, programs, techniques, practices, any expansion plans (including plans to enter into new geographic\nand/or product markets), pricing information, product or service offering specifications or plans thereof, business plans, financial information and\nother financial plans, data pertaining to the Company’s operating performance, employee lists, salary information, Personal Information, Protected\nHealth Information, all information the Company receives from customers or other third parties that is not generally known to the public or is subject\nto a confidentiality agreement, training manuals, and other materials and business information of a similar nature, including information about the\nCompany itself or any affiliated entity, which Employee acknowledges and agrees has been compiled by the Company’s expenditure of a great\namount of time, money and effort, and that contains detailed information that could not be created independently from public sources. Further, all\ndata, spreadsheets, reports, records, know-how, verbal communication, proprietary and technical information and/or other confidential materials of\nsimilar kind transmitted by the Company to Employee or developed by the Employee on behalf of the Company as Work Product (as defined in\nParagraph 7) are expressly included within the definition of “Confidential Information.” The Parties further agree that the fact the Company may be\nseeking to complete a business transaction is “Confidential Information” within the meaning of this Agreement, as well as all notes, analysis, work\nproduct or other material derived from Confidential Information. Nevertheless, Confidential Information shall not include any information of any\nkind which (1) is in the possession of the Employee prior to the date of this Agreement, as shown by the Employee’s files and records, or (2) prior or\nafter the time of disclosure becomes part of the public knowledge or literature, not as a result of any violation of this Agreement, any violation of any\nsimilar agreement with any other party or inaction or action of the receiving party, or (3) is rightfully received from a third party without any\nobligation of confidentiality; or (4) independently developed after termination without reference to the Confidential Information or materials based\nthereon; or (5) is disclosed pursuant to the order or requirement of a court, administrative agency, or other government body; or (6) is approved for\nrelease by the non-disclosing party.\nb. The term “Personal Information” (“PI”) is Confidential Information and includes, but is not limited to, an individual’s first name and last\nname or first initial and last name in combination with any of the following: an individual’s social security number, tax I.D. number, social insurance\nnumber, driver’s license number, state issued identification card number, financial information, healthcare information, or credit or debit card\nnumber.\nc. The term “Protected Health Information” (“PHI”) is Confidential Information and includes information that is created, received, and/or\nmaintained by the Company related to an individual’s health care (or payment related to health care) that directly or indirectly identifies the\nindividual.\nEMPLOYEE’S INITIALS\n/s/ SR\nd. The term “Customer” shall mean any person or entity which has purchased or ordered goods, products or services from the Company\nand/or entered into any contract for products or services with the Company within the one (1) year immediately preceding the termination of the\nEmployee’s employment with the Company.\ne. The term “Prospective Customer” shall mean any person or entity which has evidenced an intention to order products or services with the\nCompany within one year immediately preceding the termination of the Employee’s employment with the Company.\nf. The term “Restricted Area” shall include any geographical location anywhere in the United States. If the Restricted Area specified in this\nAgreement should be judged unreasonable in any proceeding, then the Restricted Area shall be reduced so that the restrictions may be enforced as is\njudged to be reasonable.\ng. The phrase “directly or indirectly” shall include the Employee either on his/her own account, or as a partner, owner, promoter, joint\nventurer, employee, agent, consultant, advisor, manager, executive, independent contractor, officer, director, or a stockholder of 5% or more of the\nvoting shares of an entity in the Business of Company.\nh. The term “Business” shall mean the business of providing non-academic, for-profit cancer genetic and molecular laboratory testing services,\nincluding, but not limited to, cytogenetics, flow cytometry, fluorescence in-situ hybridization (“FISH”), morphological studies, and molecular\ntesting, to hematologists, oncologists, urologists, pathologists, hospitals and other medical reference laboratories.\n3. Duty of Confidentiality.\na. All Confidential Information is considered highly sensitive and strictly confidential. The Employee agrees that at all times during the term of\nthis Agreement and after the termination of employment with the Company for as long as such information remains non-public information, the\nEmployee shall (i) hold in confidence and refrain from disclosing to any other party all Confidential Information, whether written or oral, tangible or\nintangible, concerning the Company and its business and operations unless such disclosure is accompanied by a non-disclosure agreement executed\nby the Company with the party to whom such Confidential Information is provided, (ii) use the Confidential Information solely in connection with\nhis or her employment with the Company and for no other purpose, (iii) take all reasonable precautions necessary to ensure that the Confidential\nInformation shall not be, or be permitted to be, shown, copied or disclosed to third parties, without the prior written consent of the Company,\n(iv) observe all security policies implemented by the Company from time to time with respect to the Confidential Information, and (v) not use or\ndisclose, directly or indirectly, as an individual or as a partner, joint venturer, employee, agent, salesman, contractor, officer, director or otherwise,\nfor the benefit of himself or herself or any other person, partnership, firm, corporation, association or other legal entity, any Confidential\nInformation, unless expressly permitted by this Agreement. Employee agrees that protection of the Company’s Confidential Information constitutes\na legitimate business interest justifying the restrictive covenants contained herein. Employee further agrees that the restrictive covenants contained\nherein are reasonably necessary to protect the Company’s legitimate business interest in preserving its Confidential Information. In addition,\nEmployee will not view or access any PI or PHI unless required by the Company in the course Employee’s job duties and responsibilities for the\nCompany and then only when authorized by the Company to do so. Employee acknowledges that he/she shall bear all costs, losses and damages\nresulting from any intentional breach of this paragraph, to the fullest extent permitted by applicable law.\nEMPLOYEE’S INITIALS\n/s/ SR\nb. In the event that the Employee is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding or otherwise,\nsuch disclosure shall be limited to the narrowest disclosure so required and, except to the extent prohibited by law, Employee shall give the\nCompany at least two (2) weeks’ notice, if practicable, of the basis for any such compelled disclosure of Confidential Information and shall\nreasonably cooperate with the Company in limiting disclosure and obtaining suitable confidentiality protections.\nc. Employee acknowledge(s) that this “Confidential Information” is of value to the Company by providing it with a competitive advantage\nover their competitors, is not generally known to competitors of the Company, and is not intended by the Company for general dissemination.\nEmployee acknowledges that this “Confidential Information” derives independent economic value, actual or potential, from not being generally\nknown to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is the\nsubject of reasonable efforts to maintain its secrecy. Therefore, the Parties agree that all “Confidential Information” under this Agreement constitutes\n“Trade Secrets” under Section 688.002 and Chapter 812 of the Florida Statutes.\n4. Limited Right of Disclosure. Except as otherwise permitted by this Agreement, Employee shall limit disclosure of pertinent Confidential\nInformation to Employee’s attorney, if any (“Representative(s)”), for the sole purpose of evaluating Employee’s relationship with the Company.\nParagraph 3 of this Agreement shall bind all such Representative(s).\n5. Return of Company Property and Confidential Materials. All tangible property, including cell phones, laptop computers and other Company\npurchased property, as well as all Confidential Information, Customer and Prospective Customer information and property, provided to Employee is\nthe exclusive property of the Company and must be returned to the Company in accordance with the instructions of the Company either upon\ntermination of the Employee’s employment or at such other time as is requested by the Company. Employee agree(s) that upon termination of\nemployment for any reason whatsoever Employee shall return all copies, in whatever form or media, including hard copies and electronic copies, of\nConfidential Information to the Company, and Employee shall delete any copy of the Confidential Information on any computer file or database\nmaintained by Employee and shall certify in writing that he/she has done so. In addition to returning all Confidential Information to the Company as\ndescribed above, Employee will destroy any analysis, notes, work product or other materials relating to or derived from the Confidential\nInformation. Any retention of Confidential Information may constitute “civil theft” as such term is defined in Chapter 772 of the Florida Statutes.\n6. Agreement Not To Circumvent. Employee agrees not to pursue any transaction or business relationship that is directly competitive to the\nBusiness of the Company that makes use of any Confidential Information during the Term of this Agreement, other than through the Company or on\nbehalf of the Company. It is further understood and agreed that, after the Employee’s employment with the Company has been terminated, the\nEmployee will direct all communications and requests from any third parties regarding Confidential Information or Business opportunities which use\nConfidential Information through the Company’s then chief executive officer or president. Employee acknowledges that any violation of this\ncovenant may subject Employee to the remedies identified in Paragraph 9 in addition to any other available remedies.\n7. Title to Work Product. Employee agrees that all work products (including strategies and testing methodologies for competing in the genetics\ntesting industry, technical materials and diagrams, computer programs, financial plans and other written materials, websites, presentation materials,\ncourse materials, advertising campaigns, slogans, videos, pictures and other materials) created or developed by the Employee for the Company\nduring the term of the Employee’s employment with the Company or any successor to the Company until the date of termination of the Employee\n(collectively, the “Work Product”), shall be considered a work made for hire and that the Company shall be the sole owner of all rights, including\ncopyright, in and to the Work Product.\nEMPLOYEE’S INITIALS\n/s/ SR\nIf the Work Product, or any part thereof, does not qualify as a work made for hire, the Employee agrees to assign, and hereby assigns, to the\nCompany for the full term of the copyright and all extensions thereof all of its right, title and interest in and to the Work Product. All discoveries,\ninventions, innovations, works of authorship, computer programs, improvements and ideas, whether or not patentable or copyrightable or otherwise\nprotectable, conceived, completed, reduced to practice or otherwise produced by the Employee in the course of his or her services to the Company in\nconnection with or in any way relating to the Business of the Company or capable of being used or adapted for use therein or in connection therewith\nshall forthwith be disclosed to the Company and shall belong to and be the absolute property of the Company unless assigned by the Company to\nanother entity.\nEmployee hereby assigns to the Company all right, title and interest in all of the discoveries, inventions, innovations, works of authorship,\ncomputer programs, improvements, ideas and other work product; all copyrights, trade secrets, and trademarks in the same; and all patent\napplications filed and patents granted worldwide on any of the same for any work previously completed on behalf of the Company or work\nperformed under the terms of this Agreement or the Employment Agreement. Employee, if and whenever required to do so (whether during or after\nthe termination of his or her employment), shall at the expense of the Company apply or join in applying for copyrights, patents or trademarks or\nother equivalent protection in the United States or in other parts of the world for any such discovery, invention, innovation, work of authorship,\ncomputer program, improvement, and idea as aforesaid and execute, deliver and perform all instruments and things necessary for vesting such\npatents, trademarks, copyrights or equivalent protections when obtained and all right, title and interest to and in the same in the Company absolutely\nand as sole beneficial owner, unless assigned by the Company to another entity. Notwithstanding the foregoing, work product conceived by the\nEmployee, which is not related to the Business of the Company, will remain the property of the Employee.\n8. Restrictive Covenant. The Company and its affiliated entities are engaged in the Business of providing genetic and molecular testing services.\nThe covenants contained in this Paragraph 8 (the “Restrictive Covenants™) are given and made by Employee to induce the Company to employ\nEmployee under the terms of the Employment Agreement, and Employee acknowledges sufficiency of consideration for these Restrictive Covenants.\nEmployee expressly covenants and agrees that, during his or her employment and for a period of two (2) years following termination of such\nemployment (such period of time is hereinafter referred to as the “Restrictive Period”), he/she will abide by the following restrictive covenants\nunless an exception is specifically provided, in writing signed by Company, in certain situations in such Restrictive Covenants.\na.  Non-Solicitation. Employee agrees and acknowledges that, during the Restrictive Period, he/she will not, directly or indirectly, in one or\na series of transactions, as an individual or as a partner, joint venturer, employee, agent, salesperson, contractor, officer, director or\notherwise, for the benefit of himself or herself or any other person, partnership, firm, corporation, association or other legal entity:\n@ solicit or induce, or attempt to solicit or induce, any Customer or Prospective Customer of the Company to patronize or do\nbusiness with any other company (or business) that is in the Business conducted by the Company in the Restricted Area; or\nEMPLOYEE’S INITIALS\n/s/ SR\n(i)  request or advise any Customer, supplier or vendor, or any Prospective Customer, prospective supplier or prospective vendor, of\nthe Company, who was a Customer, Prospective Customer, supplier, prospective supplier, vendor or prospective vendor within\none year immediately preceding the termination of the Employee’s employment with the Company, to withdraw, curtail, cancel or\nrefrain from doing business with the Company in any capacity; or\n(ili) manage, operate, be connected with, employed by, sell goods to, or perform services for, or on behalf of, in any manner, any\nCustomer, or Prospective Customer, of the Company either myself or on behalf of any other entity that may employ, engage or\nassociate with me in any fashion.\n(iv)  recruit, solicit or otherwise induce any proprietor, partner, stockholder, lender, director, officer, employee, sales agent, joint\nventurer, investor, lessor, supplier, Customer, agent, representative or any other person which has a business relationship with the\nCompany or any Affiliated Entity to discontinue, reduce or detrimentally modify such employment, agency or business\nrelationship with the Company; or\nW) employ or solicit, or attempt to employ or solicit, for employment any person or agent who is then (or was at any time within\ntwelve (12) months prior to the date Employee or any entity related to Employee seeks to employ such person) employed or\nretained by the Company. Notwithstanding the forgoing, to the extent the Employee works for a larger firm or corporation after\nhis or her termination from the Company and he or she does not have any personal knowledge and/or control over the solicitation\nof or the employment of a Company employee or agent, then this provision shall not be enforceable as it relates to that employee.\nNon-Competition. Employee agrees and acknowledges that, during the Restrictive Period, he or she will not, directly or indirectly, for\nhimself, or on behalf of others, as an individual on Employee’s own account, or as a partner, joint venturer, employee, agent, salesman,\ncontractor, officer, director or otherwise, for him/herself or any other person, partnership, firm, corporation, association or other legal\nentity, enter into, engage in, accept employment from, or provide any services to, or for, any business that is in the Business of the\nCompany, or engage in any activity that is competitive with the Company, in the Restricted Area. The parties agree that this non-\ncompetition provision is intended to cover situations where a future business opportunity in which the Employee is engaged or a future\nemployer of the Employee is selling the same or similar products and services in a Business which may compete with the Company’s\nproducts and services to Customers and Prospective Customers of the Company in the Restricted Area. This provision shall not cover\nfuture business opportunities or employers of the Employee that sell different types of products or services in the Restricted Area so long\nas such future business opportunities or employers are not in the Business of the Company.\n \nNotwithstanding the preceding paragraphs, the spirit and intent of this non-competition clause is not to deny the Employee the ability to\nsupport his or her family, but rather to prevent the Employee from using the knowledge and experiences obtained from the Company in a\nsimilar competitive environment. Along those lines, should the Employee leave the employment of the Employer for any reason, he or\nshe would be prohibited from joining a for-profit cancer testing genetics laboratory and/or company in the Business of the Company in\nthe Restricted Area. The Parties agree that all non-profit medical testing laboratories, hospitals and academic institutions as well as for-\nprofit prenatal and pediatric/constitutional genetic testing laboratories\nEMPLOYEE’S INITIALS\n/s/ SR\nare excluded from the restrictions in paragraph 8(b). In other words, the Employee would be allowed under this non-compete clause to\nwork in any non-profit cancer genetics testing laboratory (e.g., in academia) as well as in a private, for-profit prenatal laboratory or\npediatric/constitutional genetics testing laboratory. Thus, the spirit and intent of this non-competition clause is intended to prevent the\nEmployee from acting in any of the capacities outlined in this paragraph for any “for-profit” cancer genetics testing laboratories that do\nthe type of any one or more of the types of testing defined in the definition of Business in the Restricted Area.\n9. Acknowledgements of Employee. d. The Employee understands and acknowledges that any violation of this Agreement shall constitute a material breach of this Agreement\nand the Employment Agreement, and it will cause irreparable harm and loss to the Company for which monetary damages will be an\ninsufficient remedy. Therefore, the Parties agree that in addition to any other remedies available, the Company will be entitled to the\nrelief identified in Paragraph No. 10. below.\nThe Restrictive Covenants shall be construed as agreements independent of any other provision in this Agreement and the existence of\nany claim or cause of action of Employee against the Company shall not constitute a defense to the enforcement of these Restrictive\nCovenants.\nEmployee agrees that the Restrictive Covenants are reasonably necessary to protect the legitimate business interests of the Company.\nEmployee agrees that this Agreement may be enforced by the Company’s successor in interest by way of merger, business combination\nor consolidation where a majority of the surviving entity is not owned by Company’s shareholders who owned a majority of the\nCompany’s voting shares prior to such transaction and Employee acknowledges and agrees that successors are intended beneficiaries of\nthis Agreement.\nEmployee agrees that if any portion of the Restrictive Covenants is held by a court of competent jurisdiction to be unreasonable,\narbitrary or against public policy for any reason, such shall be modified accordingly as to time, geographic area and line of business so as\nto be enforceable to the fullest extent possible as to time, area and line of business.\nEmployee acknowledges that any violations of the Agreement will be a material breach of this Agreement and may subject the\nEmployee, and/or any individual(s), partnership, corporation, joint venture or other type of business with whom the Employee is then\naffiliated or employed, to monetary and other damages.\nEmployee agrees that any failure of the Company to enforce the Restrictive Covenants against any other employee, for any reason, shall\nnot constitute a defense to enforcement of the Restrictive Covenants against the Employee.\n10. Specific Performance; Injunction. The Parties agree and acknowledge that the restrictions contained in Paragraphs 1-8 are reasonable in scope and duration and are necessary to protect the Company. If any provision of Paragraphs 1-8 as applied to any party or to any circumstance is judged by a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the validity or enforceability of any other provision of this Agreement. If any such provision, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, EMPLOYEE’S INITIALS\n/s/ SR\nthe court making such determination shall have the power to reduce the duration and/or area of such provision, and/or to delete specific words or\nphrases, and in its reduced form, such provision shall then be enforceable and shall be enforced.\nAny unauthorized use or disclosure of Confidential Information in violation of Paragraphs 2-7 above or violation of the Restrictive Covenant\nin Paragraph 8 shall constitute a material breach of this Agreement and will cause irreparable harm and loss to the Company for which monetary\ndamages may be an insufficient remedy. Therefore, in addition to any other remedy available, the Company will be entitled to all available civil\nremedies, including:\na.  Temporary and permanent injunctive relief, without the necessity of posting a bond, restraining Employee or Representatives and any\nother person, partnership, firm, corporation, association or other legal entity acting in concert with Employee from any actual or\nthreatened unauthorized disclosure or use of Confidential Information, in whole or in part, or from rendering any service to any other\nperson, partnership, firm, corporation, association or other legal entity to whom such Confidential Information in whole or in part, has\nbeen disclosed or used or is threatened to be disclosed or used; and\nb.  Temporary and permanent injunctive relief, without the necessity of posting a bond, restraining the Employee from violating, directly or\nindirectly, the restrictions of the Restrictive Covenant in any capacity identified in Paragraph 8, supra, and restricting third parties from\naiding and abetting any violations of the Restrictive Covenant; and\nc.  Compensatory damages, including actual loss from misappropriation and unjust enrichment, and any and all legal fees, including without\nlimitation, all attorneys’ fees, court costs, and any other related fees and/or costs incurred by the Company in enforcing this Agreement.\nNotwithstanding the forgoing, the Company acknowledges and agrees that the Employee will not be liable for the payment of any damages or\nfees owed to the Company through the operation of Paragraph 10c above, unless and until a court of competent jurisdiction has determined that the\nCompany or any successor is entitled to such recovery.\nNothing in this Agreement shall be construed as prohibiting the Company from pursuing any other legal or equitable remedies available to it\nfor actual or threatened breach of the provisions of Paragraphs 1 — 8 of this Agreement, and the existence of any claim or cause of action by\nEmployee against the Company shall not constitute a defense to the enforcement by the Company of any of the provisions of this Agreement. The\nCompany and its Affiliated Entities have fully performed all obligations entitling it to the covenants of Paragraphs 1 — 8 of this Agreement and\ntherefore such prohibitions are not executory or otherwise subject to rejection under the bankruptcy code.\nthe protection of its Confidential Information. Employee also recognizes and agrees that the Company has the right to such information as is\nreasonably necessary to inform the Company whether the terms of this Agreement are being complied with. Accordingly, Employee agrees that\nEmployee will promptly notify any new employer of his/her obligations contained here. Employee also will provide the Company with the identity\nof his/her new employer(s) and a description of the services being provided by him/her in sufficient detail to allow the Company to reasonably\ndetermine whether such activities fall within the scope of activities prohibited by the provisions of this Agreement\nEMPLOYEE’S INITIALS\n/s/ SR\n12. Representations as to Prior or Other Agreements. Employee represents and warrants that he/she is able to perform the contemplated duties of\nemployment without being in breach of confidentiality agreements or disclosing proprietary information of any third party, and that no proprietary\ninformation of any third party shall be disclosed to the Company. Employee further represents and warrants that he/she is not prohibited from\nentering into this Agreement or performing services under it by any non-competition, non-solicitation, anti-piracy agreement, relationship\nagreement, or any other restrictions. Employee agrees to indemnify and hold the Company harmless from all claims or causes of action by any\nperson or entity against the Company arising out of any alleged breach by Employee of any such agreement or any other restrictions inconsistent\nwith the foregoing representations.\nvideo tape recordings, for purposes relating to its business without a specific release from Employee.\n14. Termination. Employee agrees to bring any claims that he/she may have against the Company within three hundred (300) days of the day that\nEmployee knew, or should have known, of the facts giving rise to the cause of action and waives any longer, but not shorter, statutory or other\nlimitations periods. This includes, but is not limited to, the initial filing of a charge with the Equal Employment Opportunity Commission and/or\nstate equivalent civil rights agency. However, Employee understands that he/she will thereafter have the right to pursue any federal claim in the\nmanner prescribed in any right to sue letter that is issued by an agency.\n15. Nondisparagement. Employee shall not make any disparaging or defamatory comments about the Company, whether true or not, except to\ncomply with any summons, court order or subpoena.\n16. Waiver of Jury Trial. THE COMPANY AND EMPLOYEE EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION\nOR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY INSTRUMENT,\nDOCUMENT OR AGREEMENT DELIVERED IN CONNECTION HEREWITH OR HEREAFTER OR RELATED IN ANY FASHION\nTO EMPLOYEE’S EMPLOYMENT WITH COMPANY.\n17. Governing I.aw, Venue and Personal Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the laws\nof state of Florida without regard to any statutory or common-law provision pertaining to conflicts of laws. The parties agree that courts of\ncompetent jurisdiction in Lee County, Florida and the United States District Court for the Southern District of Florida shall have concurrent\njurisdiction for purposes of entering temporary, preliminary and permanent injunctive relief and with regard to any action arising out of any breach\nor alleged breach of this Agreement. Employee waives personal service of any and all process upon Employee and consents that all such service of\nprocess may be made by certified or registered mail directed to Employee at the address stated in the signature section of this Agreement, with\nservice so made deemed to be completed upon actual receipt thereof. Employee waives any objection to jurisdiction and venue of any action\ninstituted against Employee as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue. Employee further agrees\nthat any action arising out of this Agreement or the relationship between the parties established herein shall be brought only in courts of competent\njurisdiction in Lee County, Florida or the United States District Court for the Southern District of Florida.\n18. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by\nEmployee. This Agreement shall inure to the benefit of Company’s successors.\nEMPLOYEE’S INITIALS\n/s/ SR\n19. Entire Agreement. This Agreement is the entire agreement of the Parties with regard to the matters addressed herein, and supersedes all prior\nnegotiations, preliminary agreements, and all prior and contemporaneous discussions and understandings of the signatories in connection with the\nsubject matter of this Agreement, except however, that this Agreement shall be read in pari materia with the Employment Agreement executed by\nEmployee. This Agreement may be modified only by written instrument signed by the Company and Employee.\n20. Severability. In case any one or more provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in\nany respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such\ninvalid, illegal were unenforceable provision had not been contained herein.\n21. Waiver. The waiver by the Company of a breach or threatened breach of this Agreement by Employee cannot be construed as a waiver of any\nsubsequent breach by Employee unless such waiver so provides by its terms. The refusal or failure of the Company to enforce any specific restrictive\ncovenant in this Agreement against Employee, or any other person for any reason, shall not constitute a defense to the enforcement by the Company\nof any other restrictive covenant provision set forth in this Agreement.\n22. Consideration. Employee expressly acknowledges and agrees that the execution by the Company of the Employment Agreement with the\nEmployee constitutes full, adequate and sufficient consideration to Employee for the covenants of Employee under this Agreement.\n23. Notices. All notices required by this Agreement shall be in writing, shall be personally delivered or sent by U.S. Registered or Certified Mail,\nreturn receipt requested, and shall be addressed to the signatories at the addresses shown on the signature page of this Agreement.\n24. Acknowledgements. Employee acknowledge(s) that he or she has reviewed this Agreement prior to signing it, that he or she knows and\nunderstands the contents, purposes and effect of this Agreement, and that he or she has been given a signed copy of this Agreement for his or her\nrecords. Employee further acknowledges and agrees that he or she has entered into this Agreement freely, without any duress or coercion.\n \n25. Captions. Captions to paragraphs and sections of this Agreement have been included solely for the sake of convenient reference and are entirely\nwithout substantive effect.\n26. Counterparts. This Agreement may be executed in counterparts, by facsimile or Adobe Acrobat PDF file each of which shall be deemed an\noriginal for all intents and purposes.\n[Signatures Appear on the Following Page]\nEMPLOYEE’S INITIALS\n/s/ SR\n10\nIN WITNESS WHEREOF, THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND KNOW\nAND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY AGREE TO BE BOUND AND ABIDE BY THE REPRESENTATIONS,\nCOVENANTS, PROMISES AND WARRANTIES CONTAINED HEREIN.\nBy: /s/ Steven A. Ross 4/19/13\nEmployee Signature Date\nEmployee Name: Steven A. Ross\nEmployee Address: 16520 S. Tamiami Tr 138-131\nFort Myers, FL 33908\nNeoGenomics Laboratories, Inc.\n12701 Commonwealth Drive, Suite #5\nFort Myers, FL 33913\nBy: /s/ Douglas M. VanOort 4/19/13\nDate\nName: Douglas M. VanOort\nTitle:  Chairman and CEO\nEMPLOYEE’S INITIALS\n/s/ SR\n11	EX-10.2 3 d524844dex102.htm NON-SOLICITATION AND NON-COMPETE AGREEMENT\nExhibit 10.2\nCONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETE AGREEMENT\nThis Confidentiality, Non-Solicitation and Non-Compete Agreement (the "Agreement") dated this 22nd day of April, 2013 is entered into by\nand between Steven A Ross ("Employee") and NeoGenomics, Laboratories Inc., a Florida corporation ("Employer" and collectively with\nNeoGenomics, Inc., a Nevada corporation (the "Parent Company.") and any entity that is wholly or partially owned by the Employer or the Parent\nCompany or otherwise affiliated with the Parent Company, the "Company."). Hereinafter, each of the Employee or the Company maybe referred to\nas a "Party." and together be referred to as the "Parties"\nRECITALS:\nWHEREAS, the Parties have entered into that certain letter agreement of even date herewith that creates an employment relationship between\nthe Employer and Employee (the "Employment Agreement"); and\nWHEREAS, pursuant to the Employment Agreement, the Employee agreed to enter into the Company's Confidentiality, Non-Solicitation and\nNon-Compete Agreement; and\nWHEREAS, the Company desires to protect and preserve its Confidentia Information and its legitimate business interests by having the\nEmployee enter into this Agreement as part of the Employment Agreement; and\nWHEREAS, the Employee desires to establish and maintain an employment relationship with the Company and as part of such employment\nrelationship desires to enter into this Agreement with the Company; and\nWHEREAS, the Employee acknowledges that the terms of the Employment Agreement including, but not limited to the Company's\ncommitments to the Employee with respect to base salary, fringe benefits and stock options are sufficient consideration to the Employee for the entry\ninto this Agreement.\nWHEREAS, the Employee acknowledges that substantial cost and expense has been or will be incurred by the Company for Employee's\ntraining, and Employee's training and employment have caused, or will require, the disclosure of certain Company confidential and proprietary\ninformation, trade secrets and customer and supplier relationships.\nNOW, THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and\nsufficiency of which are hereby acknowledged, the Parties agree as follows:\n1. Term. Employee agree(s) that the term of this Agreement is effective upon the Employee's first day of employment with the Company and shall\nsurvive and continue to be in force and effect for two years following the termination of any employment relationship between the Parties ("Term"),\nwhether termination is by the Company with or without cause, wrongful discharge, or for any other reason whatsoever, or by the Employee unless an\nexception is specifically provided in certain situations in any such Restrictive Covenants.\nEMPLOYEE'S INITIALS\n/s/ SR\n1\n2. Definitions.\na. The term "Confidential Information" as used herein shall include all business practices, methods, techniques, or processes that: (i) derives\nindependent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other\npersons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to\nmaintain its secrecy. Confidential Information also includes, but is not limited to, files, letters, memoranda, reports, records, computer\ndisks\nor\nother\ncomputer storage medium, data, models or any photographic or other materials containing such information, Customer lists and names and other\ninformation, Customer contracts, other corporate contracts, computer programs, proprietary technical information and or strategies, sales,\npromotional or marketing plans or strategies, programs, techniques, practices, any expansion plans (including plans to enter into new geographic\nand/or product markets), pricing information, product or service offering specifications or plans thereof, business plans, financial information and\nother financial plans, data pertaining to the Company's operating performance, employee lists, salary information, Personal Information, Protected\nHealth Information, all information the Company receives from customers or other third parties that is not generally known to the public or is subject\nto a confidentiality agreement, training manuals, and other materials and business information of a similar nature, including information about the\nCompany itself or any affiliated entity, which Employee acknowledges and agrees has been compiled by the Company's expenditure of a great\namount of time, money and effort, and that contains detailed information that could not be created independently from public sources. Further,\nall\ndata, spreadsheets, reports, records, know-how, verbal communication, proprietary and technical information and/or other confidential materials of\nsimilar kind transmitted by the Company to Employee or developed by the Employee on behalf of the Company as Work Product (as defined in\nParagraph 7) are expressly included within the definition of "Confidential Information." The Parties further agree that the fact the Company may be\nseeking to complete a business transaction is "Confidential Information" within the meaning of this Agreement, as well as all notes, analysis, work\nproduct or other material derived from Confidential Information. Nevertheless, Confidential Information shall not include any information of any\nkind which (1) is in the possession of the Employee prior to the date of this Agreement, as shown by the Employee's files and records, or (2) prior\nor\nafter the time of disclosure becomes part of the public knowledge or literature, not as a result of any violation of this Agreement, any violation of any\nsimilar agreement with any other party or inaction or action of the receiving party, or (3) is rightfully received from a third party without any\nobligation of confidentiality; or (4) independently developed after termination without reference to the Confidential Information or materials based\nthereon; or (5) is disclosed pursuant to the order or requirement of a court, administrative agency, or other government body; or (6) is approved for\nrelease by the non-disclosing party.\nb. The term "Personal Information" ("PI") is Confidential Information and includes, but is not limited to, an individual's first name and last\nname or first initial and last name in combination with any of the following: an individual's social security number, tax I.D. number, social insurance\nnumber, driver's license number, state issued identification card number, financial information, healthcare information, or credit or debit card\nnumber.\nC.\nThe term "Protected Health Information" ("PHI") is Confidential Information and includes information that is created, received, and/or\nmaintained by the Company related to an individual's health care (or payment related to health care) that directly or indirectly identifies the\nindividual.\nEMPLOYEE'S INITIALS\n/s/ SR\n2\nd. The term "Customer" shall mean any person or entity which has purchased or ordered goods, products or services from the Company\nand/or entered into any contract for products or services with the Company within the one (1) year immediately preceding the termination of the\nEmployee's employment with the Company.\ne. The term "Prospective Customer" shall mean any person or entity which has evidenced an intention to order products or services with the\nCompany within one year immediately preceding the termination of the Employee's employment with the Company.\nf. The term "Restricted Area" shall include any geographical location anywhere in the United States. If the Restricted Area specified in this\nAgreement should be judged unreasonable in any proceeding, then the Restricted Area shall be reduced so that the restrictions may be enforced as is\njudged to be reasonable.\ng.\nThe phrase "directly. or indirectly." shall include the Employee either on his/her own account, or as a partner, owner, promoter, joint\nventurer, employee, agent, consultant, advisor, manager, executive, independent contractor, officer, director, or a stockholder of 5% or more of the\nvoting shares of an entity in the Business of Company.\nh. The term "Business" shall mean the business of providing non-academic, for-profit cancer genetic and molecular laboratory testing services,\nincluding, but not limited to, cytogenetics, flow cytometry, fluorescence in-situ hybridization ("FISH"), morphological studies, and molecular\ntesting, to hematologists, oncologists, urologists, pathologists, hospitals and other medical reference laboratories.\n3. Duty of Confidentiality.\na. All Confidential Information is considered highly sensitive and strictly confidential. The Employee agrees that at all times during the term of\nthis Agreement and after the termination of employment with the Company for as long as such information remains non-public information, the\nEmployee shall (i) hold in confidence and refrain from disclosing to any other party all Confidential Information, whether written or oral, tangible\nor\nintangible, concerning the Company and its business and operations unless such disclosure is accompanied by a non-disclosure agreement executed\nby the Company with the party to whom such Confidential Information is provided, (ii) use the Confidential Information solely in connection with\nhis or her employment with the Company and for no other purpose, (iii) take all reasonable precautions necessary to ensure that the Confidential\nInformation shall not be, or be permitted to be, shown, copied or disclosed to third parties, without the prior written consent of the Company,\n(iv) observe all security policies implemented by the Company from time to time with respect to the Confidentia Information, and (v) not use or\ndisclose, directly or indirectly, as an individual or as a partner, joint venturer, employee, agent, salesman, contractor, officer, director or otherwise,\nfor\nthe benefit of himself or herself or any other person, partnership, firm, corporation, association or other legal entity, any Confidential\nInformation, unless expressly permitted by this Agreement. Employee agrees that protection of the Company's Confidential Information constitutes\na\nlegitimate business interest justifying the restrictive covenants contained herein. Employee further agrees that the restrictive covenants contained\nherein are reasonably necessary to protect the Company's legitimate business interest in preserving its Confidential Information. In addition,\nEmployee will not view or access any PI or PHI unless required by the Company in the course Employee's job duties and responsibilities for the\nCompany and then only when authorized by the Company to do SO. Employee acknowledges that he/she shall bear all costs, losses and damages\nresulting from any intentional breach of this paragraph, to the fullest extent permitted by applicable law.\nEMPLOYEE'S INITIALS\n/s/ SR\n3\nb. In the event that the Employee is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding or otherwise,\nsuch disclosure shall be limited to the narrowest disclosure SO required and, except to the extent prohibited by law, Employee shall give the\nCompany at least two (2) weeks' notice, if practicable, of the basis for any such compelled disclosure of Confidential Information and shall\nreasonably cooperate with the Company in limiting disclosure and obtaining suitable confidentiality protections.\nC.\nEmployee\nacknowledge(s)\nthat\nthis\n"Confidential\nInformation"\nis\nof\nvalue\nto\nthe\nCompany\nby\nproviding\nit\nwith\na\ncompetitive\nadvantage\nover their competitors, is not generally known to competitors of the Company, and is not intended by the Company for general dissemination.\nEmployee acknowledges that this "Confidential Information" derives independent economic value, actual or potential, from not being generally\nknown to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is the\nsubject of reasonable efforts to maintain its secrecy. Therefore, the Parties agree that all "Confidential Information" under this Agreement constitutes\n"Trade Secrets" under Section 688.002 and Chapter 812 of the Florida Statutes.\n4. Limited Right of Disclosure. Except as otherwise permitted by this Agreement, Employee shall limit disclosure of pertinent Confidential\nInformation to Employee's attorney, if any ("Representative(s)"), for the sole purpose of evaluating Employee's relationship with the Company.\nParagraph 3 of this Agreement shall bind all such Representative(s).\n5. Return of Company Property and Confidential Materials. All tangible property, including cell phones, laptop computers and other Company\npurchased property, as well as all Confidential Information, Customer and Prospective Customer information and property, provided to Employee is\nthe exclusive property of the Company and must be returned to the Company in accordance with the instructions of the Company either upon\ntermination of the Employee's employment or at such other time as is requested by the Company. Employee agree(s) that upon termination of\nemployment\nfor\nany\nreason\nwhatsoever\nEmployee\nshall\nreturn\nall\ncopies,\nin\nwhatever\nform\nor\nmedia,\nincluding\nhard\ncopies\nand\nelectronic\ncopies,\nof\nmaintained by Employee and shall certify in writing that he/she has done SO. In addition to returning all Confidential Information to the Company\nConfidential Information to the Company, and Employee shall delete any copy of the Confidential Information on any computer file or database as\ndescribed above, Employee will destroy any analysis, notes, work product or other materials relating to or derived from the Confidential\nInformation. Any retention of Confidential Information may constitute "civil theft" as such term is defined in Chapter 772 of the Florida Statutes.\n6. Agreement Not To Circumvent. Employee agrees not to pursue any transaction or business relationship that is directly competitive to the\nBusiness of the Company that makes use of any Confidential Information during the Term of this Agreement, other than through the Company or on\nbehalf of the Company. It is further understood and agreed that, after the Employee's employment with the Company has been terminated, the\nEmployee will direct all communications and requests from any third parties regarding Confidential Information or Business opportunities which\nuse\nConfidential Information through the Company's then chief executive officer or president. Employee acknowledges that any violation of this\ncovenant may subject Employee to the remedies identified in Paragraph 9 in addition to any other available remedies.\n7. Title to Work Product. Employee agrees that all work products (including strategies and testing methodologies for competing in the genetics\ntesting industry, technical materials and diagrams, computer programs, financial plans and other written materials, websites, presentation materials,\ncourse materials, advertising campaigns, slogans, videos, pictures and other materials) created or developed by the Employee for the Company\nduring the term of the Employee's employment with the Company or any successor to the Company until the date of termination of the Employee\n(collectively, the "Work Product"), shall be considered a work made for hire and that the Company shall be the sole owner of all rights, including\ncopyright, in and to the Work Product.\nEMPLOYEE'S INITIALS\n/s/ SR\n4\nIf the Work Product, or any part thereof, does not qualify as a work made for hire, the Employee agrees to assign, and hereby assigns, to the\nCompany for the full term of the copyright and all extensions thereof all of its right, title and interest in and to the Work Product. All discoveries,\ninventions, innovations, works of authorship, computer programs, improvements and ideas, whether or not patentable or copyrightable or otherwise\nprotectable, conceived, completed, reduced to practice or otherwise produced by the Employee in the course of his or her services to the Company in\nconnection with or in any way relating to the Business of the Company or capable of being used or adapted for use therein or in connection therewith\nshall forthwith be disclosed to the Company and shall belong to and be the absolute property of the Company unless assigned by the Company to\nanother entity.\nEmployee hereby assigns to the Company all right, title and interest in all of the discoveries, inventions, innovations, works of authorship,\ncomputer programs, improvements, ideas and other work product; all copyrights, trade secrets, and trademarks in the same; and all patent\napplications filed and patents granted worldwide on any of the same for any work previously completed on behalf of the Company or work\nperformed under the terms of this Agreement or the Employment Agreement. Employee, if and whenever required to do SO (whether during or after\nthe termination of his or her employment), shall at the expense of the Company apply or join in applying for copyrights, patents or trademarks or\nother equivalent protection in the United States or in other parts of the world for any such discovery, invention, innovation, work of authorship,\ncomputer program, improvement, and idea as aforesaid and execute, deliver and perform all instruments and things necessary for vesting such\npatents, trademarks, copyrights or equivalent protections when obtained and all right, title and interest to and in the same in the Company absolutely\nand as sole beneficial owner, unless assigned by the Company to another entity. Notwithstanding the foregoing, work product conceived by the\nEmployee, which is not related to the Business of the Company, will remain the property of the Employee.\n8. Restrictive Covenant. The Company and its affiliated entities are engaged in the Business of providing genetic and molecular testing services.\nThe covenants contained in this Paragraph 8 (the "Restrictive Covenants") are given and made by Employee to induce the Company to employ\nEmployee under the terms of the Employment Agreement, and Employee acknowledges sufficiency of consideration for these Restrictive Covenants.\nEmployee expressly covenants and agrees that, during his or her employment and for a period of two (2) years following termination of such\nemployment (such period of time is hereinafter referred to as the "Restrictive Period"), he/she will abide by the following restrictive covenants\nunless an exception is specifically provided, in writing signed by Company, in certain situations in such Restrictive Covenants.\na.\nNon-Solicitation. Employee agrees and acknowledges that, during the Restrictive Period, he/she will not, directly or indirectly, in one or\na\nseries of transactions, as an individual or as a partner, joint venturer, employee, agent, salesperson, contractor, officer, director or\notherwise, for the benefit of himself or herself or any other person, partnership, firm, corporation, association or other legal entity:\n(i)\nsolicit or induce, or attempt to solicit or induce, any Customer or Prospective Customer of the Company to patronize or do\nbusiness with any other company (or business) that is in the Business conducted by the Company in the Restricted Area; or\nEMPLOYEE'S INITIALS\n/s/ SR\n5\n(ii)\nrequest or advise any Customer, supplier or vendor, or any Prospective Customer, prospective supplier or prospective vendor, of\nthe Company, who was a Customer, Prospective Customer, supplier, prospective supplier, vendor or prospective vendor within\none year immediately preceding the termination of the Employee's employment with the Company, to withdraw, curtail, cancel or\nrefrain from doing business with the Company in any capacity; or\n(iii)\nmanage, operate, be connected with, employed by, sell goods to, or perform services for, or on behalf of, in any manner, any\nCustomer, or Prospective Customer, of the Company either myself or on behalf of any other entity that may employ, engage or\nassociate with me in any fashion.\n(iv)\nrecruit, solicit or otherwise induce any proprietor, partner, stockholder, lender, director, officer, employee, sales agent, joint\nventurer, investor, lessor, supplier, Customer, agent, representative or any other person which has a business relationship with the\nCompany or any Affiliated Entity to discontinue, reduce or detrimentally modify such employment, agency or business\nrelationship with the Company; or\n(v)\nemploy or solicit, or attempt to employ or solicit, for employment any person or agent who is then (or was at any time within\ntwelve (12) months prior to the date Employee or any entity related to Employee seeks to employ such person) employed or\nretained by the Company. Notwithstanding the forgoing, to the extent the Employee works for a larger firm or corporation after\nhis or her termination from the Company and he or she does not have any personal knowledge and/or control over the solicitation\nof or the employment of a Company employee or agent, then this provision shall not be enforceable as it relates to that employee.\nb.\nNon-Competition. Employee agrees and acknowledges that, during the Restrictive Period, he or she will not, directly or indirectly, for\nhimself or on behalf of others, as an individual on Employee's own account, or as a partner, joint venturer, employee, agent, salesman,\ncontractor, officer, director or otherwise, for him/herself or any other person, partnership, firm, corporation, association or other legal\nentity, enter into, engage in, accept employment from, or provide any services to, or for, any business that is in the Business of the\nCompany, or engage in any activity that is competitive with the Company, in the Restricted Area. The parties agree that this non-\ncompetition provision is intended to cover situations where a future business opportunity in which the Employee is engaged or a future\nemployer of the Employee is selling the same or similar products and services in a Business which may compete with the Company's\nproducts and services to Customers and Prospective Customers of the Company in the Restricted Area. This provision shall not cover\nfuture business opportunities or employers of the Employee that sell different types of products or services in the Restricted Area So long\nas such future business opportunities or employers are not in the Business of the Company.\nNotwithstanding the preceding paragraphs, the spirit and intent of this non-competition clause is not to deny the Employee the ability to\nsupport his or her family, but rather to prevent the Employee from using the knowledge and experiences obtained from the Company in a\nsimilar competitive environment. Along those lines, should the Employee leave the employment of the Employer for any reason, he or\nshe would be prohibited from joining a for-profit cancer testing genetics laboratory and/or company in the Business of the Company in\nthe Restricted Area. The Parties agree that all non-profit medical testing laboratories, hospitals and academic institutions as well as for-\nprofit prenatal and pediatric/constitutional genetic testing laboratories\nEMPLOYEE'S INITIALS\n/s/ SR\n6\nare excluded from the restrictions in paragraph 8(b). In other words, the Employee would be allowed under this non-compete clause to\nwork in any non-profit cancer genetics testing laboratory (e.g., in academia) as well as in a private, for-profit prenatal laboratory or\npediatric/constitutional genetics testing laboratory. Thus, the spirit and intent of this non-competition clause is intended to prevent the\nEmployee from acting in any of the capacities outlined in this paragraph for any "for-profit" cancer genetics testing laboratories that do\nthe type of any one or more of the types of testing defined in the definition of Business in the Restricted Area.\n9. Acknowledgements of Employee.\na.\nThe Employee understands and acknowledges that any violation of this Agreement shall constitute a material breach of this Agreement\nand the Employment Agreement, and it will cause irreparable harm and loss to the Company for which monetary damages will be an\ninsufficient remedy. Therefore, the Parties agree that in addition to any other remedies available, the Company will be entitled to the\nrelief identified in Paragraph No. 10. below.\nb.\nThe Restrictive Covenants shall be construed as agreements independent of any other provision in this Agreement and the existence of\nany claim or cause of action of Employee against the Company shall not constitute a defense to the enforcement of these Restrictive\nCovenants.\nC.\nEmployee agrees that the Restrictive Covenants are reasonably necessary to protect the legitimate business interests of the Company.\nd.\nEmployee agrees that this Agreement may be enforced by the Company's successor in interest by way of merger, business combination\nor consolidation where a majority of the surviving entity is not owned by Company's shareholders who owned a majority of the\nCompany's voting shares prior to such transaction and Employee acknowledges and agrees that successors are intended beneficiaries\nof\nthis Agreement.\ne.\nEmployee agrees that if any portion of the Restrictive Covenants is held by a court of competent jurisdiction to be unreasonable,\narbitrary or against public policy for any reason, such shall be modified accordingly as to time, geographic area and line of business SO as\nto be enforceable to the fullest extent possible as to time, area and line of business.\nf.\nEmployee acknowledges that any violations of the Agreement will be a material breach of this Agreement and may subject the\nEmployee, and/or any individual(s), partnership, corporation, joint venture or other type of business with whom the Employee is then\naffiliated or employed, to monetary and other damages.\ng.\nEmployee agrees that any failure of the Company to enforce the Restrictive Covenants against any other employee, for any reason, shall\nnot constitute a defense to enforcement of the Restrictive Covenants against the Employee.\n10.\nSpecific Performance; Injunction. The Parties agree and acknowledge that the restrictions contained in Paragraphs 1-8 are reasonable in scope\nand duration and are necessary to protect the Company. If any provision of Paragraphs 1-8 as applied to any party or to any circumstance is judged\nby a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the validity or enforceability of any other\nprovision of this Agreement. If any such provision, or any part thereof, is held to be unenforceable because of the duration of such provision or the\narea covered thereby,\nEMPLOYEE'S INITIALS\n/s/ SR\n7\nthe court making such determination shall have the power to reduce the duration and/or area of such provision, and/or to delete specific words or\nphrases, and in its reduced form, such provision shall then be enforceable and shall be enforced.\nAny unauthorized use or disclosure of Confidential Information in violation of Paragraphs 2-7 above or violation of the Restrictive Covenant\nin Paragraph 8 shall constitute a material breach of this Agreement and will cause irreparable harm and loss to the Company for which monetary\ndamages may be an insufficient remedy. Therefore, in addition to any other remedy available, the Company will be entitled to all available civil\nremedies, including:\na.\nTemporary and permanent injunctive relief, without the necessity of posting a bond, restraining Employee or Representatives and any\nother person, partnership, firm, corporation, association or other legal entity acting in concert with Employee from any actual or\nthreatened unauthorized disclosure or use of Confidential Information, in whole or in part, or from rendering any service to any other\nperson, partnership, firm, corporation, association or other legal entity to whom such Confidential Information in whole or in part, has\nbeen disclosed or used or is threatened to be disclosed or used; and\nb.\nTemporary and permanent injunctive relief, without the necessity of posting a bond, restraining the Employee from violating, directly\nor\nindirectly, the restrictions of the Restrictive Covenant in any capacity identified in Paragraph 8, supra, and restricting third parties from\naiding and abetting any violations of the Restrictive Covenant; and\nC.\nCompensatory damages, including actual loss from misappropriation and unjust enrichment, and any and all legal fees, including without\nlimitation, all attorneys' fees, court costs, and any other related fees and/or costs incurred by the Company in enforcing this Agreement.\nNotwithstanding the forgoing, the Company acknowledges and agrees that the Employee will not be liable for the payment of any damages or\nfees owed to the Company through the operation of Paragraph 10c above, unless and until a court of competent jurisdiction has determined that the\nCompany or any successor is entitled to such recovery.\nNothing in this Agreement shall be construed as prohibiting the Company from pursuing any other legal or equitable remedies available to it\nfor actual or threatened breach of the provisions of Paragraphs 1 - 8 of this Agreement, and the existence of any claim or cause of action by\nEmployee against the Company shall not constitute a defense to the enforcement by the Company of any of the provisions of this Agreement. The\nCompany and its Affiliated Entities have fully performed all obligations entitling it to the covenants of Paragraphs 1 - 8 of this Agreement and\ntherefore such prohibitions are not executory or otherwise subject to rejection under the bankruptcy code.\n11. Duty to Disclose Agreement and to Report New Employer. Employee acknowledges that the Company has a legitimate business purpose in\nthe protection of its Confidential Information. Employee also recognizes and agrees that the Company has the right to such information as is\nreasonably necessary to inform the Company whether the terms of this Agreement are being complied with. Accordingly, Employee agrees that\nEmployee will promptly notify any new employer of his/her obligations contained here. Employee also will provide the Company with the identity\nof his/her new employer(s) and a description of the services being provided by him/her in sufficient detail to allow the Company to reasonably\ndetermine whether such activities fall within the scope of activities prohibited by the provisions of this Agreement\nEMPLOYEE'S INITIALS\n/s/ SR\n8\n12. Representations as to Prior or Other Agreements. Employee represents and warrants that he/she is able to perform the contemplated duties of\nemployment without being in breach of confidentiality agreements or disclosing proprietary information of any third party, and that no proprietary\ninformation of any third party shall be disclosed to the Company. Employee further represents and warrants that he/she is not prohibited from\nentering into this Agreement or performing services under it by any non-competition, non-solicitation, anti-piracy agreement, relationship\nagreement, or any other restrictions. Employee agrees to indemnify and hold the Company harmless from all claims or causes of action by any\nperson or entity against the Company arising out of any alleged breach by Employee of any such agreement or any other restrictions inconsistent\nwith the foregoing representations.\n13. Company Use of Employee Name, Image and Voice. The Company may use and publish Employee's name and picture, including audio\nor\nvideo tape recordings, for purposes relating to its business without a specific release from Employee.\n14.\nTermination. Employee agrees to bring any claims that he/she may have against the Company within three hundred (300) days of the day that\nEmployee knew, or should have known, of the facts giving rise to the cause of action and waives any longer, but not shorter, statutory or other\nlimitations periods. This includes, but is not limited to, the initial filing of a charge with the Equal Employment Opportunity Commission and/or\nstate equivalent civil rights agency. However, Employee understands that he/she will thereafter have the right to pursue any federal claim in the\nmanner prescribed in any right to sue letter that is issued by an agency.\n15. Nondisparagement. Employee shall not make any disparaging or defamatory comments about the Company, whether true or not, except to\ncomply with any summons, court order or subpoena.\n16. Waiver of Jury Trial. THE COMPANY AND EMPLOYEE EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION\nOR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY INSTRUMENT,\nDOCUMENT OR AGREEMENT DELIVERED IN CONNECTION HEREWITH OR HEREAFTER OR RELATED IN ANY FASHION\nTO EMPLOYEE'S EMPLOYMENT WITH COMPANY.\n17. Governing Law, Venue and Personal Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the laws\nof state of Florida without regard to any statutory or common-law provision pertaining to conflicts of laws. The parties agree that courts of\ncompetent jurisdiction in Lee County, Florida and the United States District Court for the Southern District of Florida shall have concurrent\njurisdiction for purposes of entering temporary, preliminary and permanent injunctive relief and with regard to any action arising out of any breach\nor\nalleged breach of this Agreement. Employee waives personal service of any and all process upon Employee and consents that all such service of\nprocess may be made by certified or registered mail directed to Employee at the address stated in the signature section of this Agreement, with\nservice so made deemed to be completed upon actual receipt thereof. Employee waives any objection to jurisdiction and venue of any action\ninstituted against Employee as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue. Employee\nfurther\nagrees\nthat any action arising out of this Agreement or the relationship between the parties established herein shall be brought only in courts of competent\njurisdiction in Lee County, Florida or the United States District Court for the Southern District of Florida.\n18. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by\nEmployee. This Agreement shall inure to the benefit of Company's successors.\nEMPLOYEE'S INITIALS\n/s/ SR\n9\n19. Entire Agreement. This Agreement is the entire agreement of the Parties with regard to the matters addressed herein, and supersedes all prior\nnegotiations, preliminary agreements, and all prior and contemporaneous discussions and understandings of the signatories in connection with the\nsubject matter of this Agreement, except however, that this Agreement shall be read in pari materia with the Employment Agreement executed by\nEmployee. This Agreement may be modified only by written instrument signed by the Company and Employee.\n20.\nSeverability.\nIn\ncase\nany\none\nor\nmore\nprovisions\ncontained\nin\nthis\nAgreement\nshall,\nfor\nany\nreason,\nbe\nheld\ninvalid,\nillegal\nor\nunenforceable\nin\nany respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such\ninvalid, illegal were unenforceable provision had not been contained herein.\n21. Waiver. The waiver by the Company of a breach or threatened breach of this Agreement by Employee cannot be construed as a waiver of any\nsubsequent breach by Employee unless such waiver so provides by its terms. The refusal or failure of the Company to enforce any specific restrictive\ncovenant in this Agreement against Employee, or any other person for any reason, shall not constitute a defense to the enforcement by the Company\nof any other restrictive covenant provision set forth in this Agreement.\n22. Consideration. Employee expressly acknowledges and agrees that the execution by the Company of the Employment Agreement with the\nEmployee constitutes full, adequate and sufficient consideration to Employee for the covenants of Employee under this Agreement.\n23. Notices. All notices required by this Agreement shall be in writing, shall be personally delivered or sent by U.S. Registered or Certified Mail,\nreturn receipt requested, and shall be addressed to the signatories at the addresses shown on the signature page of this Agreement.\n24. Acknowledgements. Employee acknowledge(s) that he or she has reviewed this Agreement prior to signing it, that he or she knows and\nunderstands the contents, purposes and effect of this Agreement, and that he or she has been given a signed copy of this Agreement for his or her\nrecords. Employee further acknowledges and agrees that he or she has entered into this Agreement freely, without any duress or coercion.\n25. Captions. Captions to paragraphs and sections of this Agreement have been included solely for the sake of convenient reference and are entirely\nwithout substantive effect.\n26. Counterparts. This Agreement may be executed in counterparts, by facsimile or Adobe Acrobat PDF file each of which shall be deemed an\noriginal for all intents and purposes.\n[Signatures Appear on the Following Page]\nEMPLOYEE'S INITIALS\n/s/ SR\n10\nIN WITNESS WHEREOF, THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND KNOW\nAND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY AGREE TO BE BOUND AND ABIDE BY THE REPRESENTATIONS,\nCOVENANTS, PROMISES AND WARRANTIES CONTAINED HEREIN.\nBy: /s/ Steven A. Ross\n4/19/13\nEmployee Signature\nDate\nEmployee Name:\nSteven A. Ross\nEmployee Address:\n16520 S. Tamiami Tr 138-131\nFort Myers, FL 33908\nNeoGenomics Laboratories, Inc.\n12701 Commonwealth Drive, Suite #5\nFort Myers, FL 33913\nBy: /s/ Douglas M. VanOort\n4/19/13\nDate\nName: Douglas M. VanOort\nTitle: Chairman and CEO\nEMPLOYEE'S INITIALS\n/s/ SR\n11	EX-10.2 3 d524844dex102.htm NON-SOLICITATION AND NON-COMPETE AGREEMENT\nExhibit 10.2\nCONFIDENTIALITY, NON-SOLICITATION AND NON-COMPETE AGREEMENT\nThis Confidentiality, Non-Solicitation and Non-Compete Agreement (the “Agreement”) dated this 22nd day of April, 2013 is entered into by\nand between Steven A Ross (“Employee”) and NeoGenomics, Laboratories Inc., a Florida corporation (“Employer” and collectively with\nNeoGenomics, Inc., a Nevada corporation (the “Parent Company”) and any entity that is wholly or partially owned by the Employer or the Parent\nCompany or otherwise affiliated with the Parent Company, the “Company”). Hereinafter, each of the Employee or the Company maybe referred to\nas a “Party” and together be referred to as the “Parties”.\nRECITALS:\nWHEREAS, the Parties have entered into that certain letter agreement of even date herewith that creates an employment relationship between\nthe Employer and Employee (the “Employment Agreement”); and\nWHEREAS, pursuant to the Employment Agreement, the Employee agreed to enter into the Company’s Confidentiality, Non-Solicitation and\nNon-Compete Agreement; and\nWHEREAS, the Company desires to protect and preserve its Confidential Information and its legitimate business interests by having the\nEmployee enter into this Agreement as part of the Employment Agreement; and\nWHEREAS, the Employee desires to establish and maintain an employment relationship with the Company and as part of such employment\nrelationship desires to enter into this Agreement with the Company; and\nWHEREAS, the Employee acknowledges that the terms of the Employment Agreement including, but not limited to the Company’s\ncommitments to the Employee with respect to base salary, fringe benefits and stock options are sufficient consideration to the Employee for the entry\ninto this Agreement.\nWHEREAS, the Employee acknowledges that substantial cost and expense has been or will be incurred by the Company for Employee’s\ntraining, and Employee’s training and employment have caused, or will require, the disclosure of certain Company confidential and proprietary\ninformation, trade secrets and customer and supplier relationships.\nNOW, THEREFORE, in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and\nsufficiency of which are hereby acknowledged, the Parties agree as follows:\n1. Term. Employee agree(s) that the term of this Agreement is effective upon the Employee’s first day of employment with the Company and shall\nsurvive and continue to be in force and effect for two years following the termination of any employment relationship between the Parties (“Term”),\nwhether termination is by the Company with or without cause, wrongful discharge, or for any other reason whatsoever, or by the Employee unless an\nexception is specifically provided in certain situations in any such Restrictive Covenants.\nEMPLOYEE’S INITIALS\n/s/ SR\n1\n2. Definitions.\na. The term “Confidential Information” as used herein shall include all business practices, methods, techniques, or processes that: (i) derives\nindependent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other\npersons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to\nmaintain its secrecy. Confidential Information also includes, but is not limited to, files, letters, memoranda, reports, records, computer disks or other\ncomputer storage medium, data, models or any photographic or other materials containing such information, Customer lists and names and other\ninformation, Customer contracts, other corporate contracts, computer programs, proprietary technical information and or strategies, sales,\npromotional or marketing plans or strategies, programs, techniques, practices, any expansion plans (including plans to enter into new geographic\nand/or product markets), pricing information, product or service offering specifications or plans thereof, business plans, financial information and\nother financial plans, data pertaining to the Company’s operating performance, employee lists, salary information, Personal Information, Protected\nHealth Information, all information the Company receives from customers or other third parties that is not generally known to the public or is subject\nto a confidentiality agreement, training manuals, and other materials and business information of a similar nature, including information about the\nCompany itself or any affiliated entity, which Employee acknowledges and agrees has been compiled by the Company’s expenditure of a great\namount of time, money and effort, and that contains detailed information that could not be created independently from public sources. Further, all\ndata, spreadsheets, reports, records, know-how, verbal communication, proprietary and technical information and/or other confidential materials of\nsimilar kind transmitted by the Company to Employee or developed by the Employee on behalf of the Company as Work Product (as defined in\nParagraph 7) are expressly included within the definition of “Confidential Information.” The Parties further agree that the fact the Company may be\nseeking to complete a business transaction is “Confidential Information” within the meaning of this Agreement, as well as all notes, analysis, work\nproduct or other material derived from Confidential Information. Nevertheless, Confidential Information shall not include any information of any\nkind which (1) is in the possession of the Employee prior to the date of this Agreement, as shown by the Employee’s files and records, or (2) prior or\nafter the time of disclosure becomes part of the public knowledge or literature, not as a result of any violation of this Agreement, any violation of any\nsimilar agreement with any other party or inaction or action of the receiving party, or (3) is rightfully received from a third party without any\nobligation of confidentiality; or (4) independently developed after termination without reference to the Confidential Information or materials based\nthereon; or (5) is disclosed pursuant to the order or requirement of a court, administrative agency, or other government body; or (6) is approved for\nrelease by the non-disclosing party.\nb. The term “Personal Information” (“PI”) is Confidential Information and includes, but is not limited to, an individual’s first name and last\nname or first initial and last name in combination with any of the following: an individual’s social security number, tax I.D . number, social insurance\nnumber, driver’s license number, state issued identification card number, financial information, healthcare information, or credit or debit card\nnumber.\nc. The term “Protected Health Information” (“PHI”) is Confidential Information and includes information that is created, received, and/or\nmaintained by the Company related to an individual’s health care (or payment related to health care) that directly or indirectly identifies the\nindividual.\nEMPLOYEE’S INITIALS\n/s/ SR\n2\nd. The term “Customer” shall mean any person or entity which has purchased or ordered goods, products or services from the Company\nand/or entered into any contract for products or services with the Company within the one (1) year immediately preceding the termination of the\nEmployee’s employment with the Company.\ne. The term “Prospective Customer” shall mean any person or entity which has evidenced an intention to order products or services with the\nCompany within one year immediately preceding the termination of the Employee’s employment with the Company.\nf. The term “Restricted Area” shall include any geographical location anywhere in the United States. If the Restricted Area specified in this\nAgreement should be judged unreasonable in any proceeding, then the Restricted Area shall be reduced so that the restrictions may be enforced as is\njudged to be reasonable.\ng. The phrase “directly or indirectly” shall include the Employee either on his/her own account, or as a partner, owner, promoter, joint\nventurer, employee, agent, consultant, advisor, manager, executive, independent contractor, officer, director, or a stockholder of 5% or more of the\nvoting shares of an entity in the Business of Company.\nh. The term “Business” shall mean the business of providing non-academic, for-profit cancer genetic and molecular laboratory testing services,\nincluding, but not limited to, cytogenetics, flow cytometry, fluorescence in-situ hybridization (“FISH”), morphological studies, and molecular\ntesting, to hematologists, oncologists, urologists, pathologists, hospitals and other medical reference laboratories.\n3. Duty of Confidentiality.\na. All Confidential Information is considered highly sensitive and strictly confidential. The Employee agrees that at all times during the term of\nthis Agreement and after the termination of employment with the Company for as long as such information remains non-public information, the\nEmployee shall (i) hold in confidence and refrain from disclosing to any other party all Confidential Information, whether written or oral, tangible or\nintangible, concerning the Company and its business and operations unless such disclosure is accompanied by a non-disclosure agreement executed\nby the Company with the party to whom such Confidential Information is provided, (ii) use the Confidential Information solely in connection with\nhis or her employment with the Company and for no other purpose, (iii) take all reasonable precautions necessary to ensure that the Confidential\nInformation shall not be, or be permitted to be, shown, copied or disclosed to third parties, without the prior written consent of the Company,\n(iv) observe all security policies implemented by the Company from time to time with respect to the Confidential Information, and (v) not use or\ndisclose, directly or indirectly, as an individual or as a partner, joint venturer, employee, agent, salesman, contractor, officer, director or otherwise,\nfor the benefit of himself or herself or any other person, partnership, firm, corporation, association or other legal entity, any Confidential\nInformation, unless expressly permitted by this Agreement. Employee agrees that protection of the Company’s Confidential Information constitutes\na legitimate business interest justifying the restrictive covenants contained herein. Employee further agrees that the restrictive covenants contained\nherein are reasonably necessary to protect the Company’s legitimate business interest in preserving its Confidential Information. In addition,\nEmployee will not view or access any PI or PHI unless required by the Company in the course Employee’s job duties and responsibilities for the\nCompany and then only when authorized by the Company to do so. Employee acknowledges that he/she shall bear all costs, losses and damages\nresulting from any intentional breach of this paragraph, to the fullest extent permitted by applicable law.\nEMPLOYEE’S INITIALS\n/s/ SR\n3\nb. In the event that the Employee is ordered to disclose any Confidential Information, whether in a legal or regulatory proceeding or otherwise,\nsuch disclosure shall be limited to the narrowest disclosure so required and, except to the extent prohibited by law, Employee shall give the\nCompany at least two (2) weeks’ notice, if practicable, of the basis for any such compelled disclosure of Confidential Information and shall\nreasonably cooperate with the Company in limiting disclosure and obtaining suitable confidentiality protections.\nc. Employee acknowledge(s) that this “Confidential Information” is of value to the Company by providing it with a competitive advantage\nover their competitors, is not generally known to competitors of the Company, and is not intended by the Company for general dissemination.\nEmployee acknowledges that this “Confidential Information” derives independent economic value, actual or potential, from not being generally\nknown to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is the\nsubject of reasonable efforts to maintain its secrecy. Therefore, the Parties agree that all “Confidential Information” under this Agreement constitutes\n“Trade Secrets” under Section 688.002 and Chapter 812 of the Florida Statutes.\n4. Limited Right of Disclosure. Except as otherwise permitted by this Agreement, Employee shall limit disclosure of pertinent Confidential\nInformation to Employee’s attorney, if any (“Representative(s)”), for the sole purpose of evaluating Employee’s relationship with the Company.\nParagraph 3 of this Agreement shall bind all such Representative(s).\n5. Return of Company Property and Confidential Materials. All tangible property, including cell phones, laptop computers and other Company\npurchased property, as well as all Confidential Information, Customer and Prospective Customer information and property, provided to Employee is\nthe exclusive property of the Company and must be returned to the Company in accordance with the instructions of the Company either upon\ntermination of the Employee’s employment or at such other time as is requested by the Company. Employee agree(s) that upon termination of\nemployment for any reason whatsoever Employee shall return all copies, in whatever form or media, including hard copies and electronic copies, of\nConfidential Information to the Company, and Employee shall delete any copy of the Confidential Information on any computer file or database\nmaintained by Employee and shall certify in writing that he/she has done so. In addition to returning all Confidential Information to the Company as\ndescribed above, Employee will destroy any analysis, notes, work product or other materials relating to or derived from the Confidential\nInformation. Any retention of Confidential Information may constitute “civil theft” as such term is defined in Chapter 772 of the Florida Statutes.\n6. Agreement Not To Circumvent. Employee agrees not to pursue any transaction or business relationship that is directly competitive to the\nBusiness of the Company that makes use of any Confidential Information during the Term of this Agreement, other than through the Company or on\nbehalf of the Company. It is further understood and agreed that, after the Employee’s employment with the Company has been terminated, the\nEmployee will direct all communications and requests from any third parties regarding Confidential Information or Business opportunities which use\nConfidential Information through the Company’s then chief executive officer or president. Employee acknowledges that any violation of this\ncovenant may subject Employee to the remedies identified in Paragraph 9 in addition to any other available remedies.\n7. Title to Work Product. Employee agrees that all work products (including strategies and testing methodologies for competing in the genetics\ntesting industry, technical materials and diagrams, computer programs, financial plans and other written materials, websites, presentation materials,\ncourse materials, advertising campaigns, slogans, videos, pictures and other materials) created or developed by the Employee for the Company\nduring the term of the Employee’s employment with the Company or any successor to the Company until the date of termination of the Employee\n(collectively, the “Work Product”), shall be considered a work made for hire and that the Company shall be the sole owner of all rights, including\ncopyright, in and to the Work Product.\nEMPLOYEE’S INITIALS\n/s/ SR\n4\nIf the Work Product, or any part thereof, does not qualify as a work made for hire, the Employee agrees to assign, and hereby assigns, to the\nCompany for the full term of the copyright and all extensions thereof all of its right, title and interest in and to the Work Product. All discoveries,\ninventions, innovations, works of authorship, computer programs, improvements and ideas, whether or not patentable or copyrightable or otherwise\nprotectable, conceived, completed, reduced to practice or otherwise produced by the Employee in the course of his or her services to the Company in\nconnection with or in any way relating to the Business of the Company or capable of being used or adapted for use therein or in connection therewith\nshall forthwith be disclosed to the Company and shall belong to and be the absolute property of the Company unless assigned by the Company to\nanother entity.\nEmployee hereby assigns to the Company all right, title and interest in all of the discoveries, inventions, innovations, works of authorship,\ncomputer programs, improvements, ideas and other work product; all copyrights, trade secrets, and trademarks in the same; and all patent\napplications filed and patents granted worldwide on any of the same for any work previously completed on behalf of the Company or work\nperformed under the terms of this Agreement or the Employment Agreement. Employee, if and whenever required to do so (whether during or after\nthe termination of his or her employment), shall at the expense of the Company apply or join in applying for copyrights, patents or trademarks or\nother equivalent protection in the United States or in other parts of the world for any such discovery, invention, innovation, work of authorship,\ncomputer program, improvement, and idea as aforesaid and execute, deliver and perform all instruments and things necessary for vesting such\npatents, trademarks, copyrights or equivalent protections when obtained and all right, title and interest to and in the same in the Company absolutely\nand as sole beneficial owner, unless assigned by the Company to another entity. Notwithstanding the foregoing, work product conceived by the\nEmployee, which is not related to the Business of the Company, will remain the property of the Employee.\n8. Restrictive Covenant. The Company and its affiliated entities are engaged in the Business of providing genetic and molecular testing services.\nThe covenants contained in this Paragraph 8 (the “Restrictive Covenants”) are given and made by Employee to induce the Company to employ\nEmployee under the terms of the Employment Agreement, and Employee acknowledges sufficiency of consideration for these Restrictive Covenants.\nEmployee expressly covenants and agrees that, during his or her employment and for a period of two (2) years following termination of such\nemployment (such period of time is hereinafter referred to as the “Restrictive Period”), he/she will abide by the following restrictive covenants\nunless an exception is specifically provided, in writing signed by Company, in certain situations in such Restrictive Covenants.\na.\nNon-Solicitation. Employee agrees and acknowledges that, during the Restrictive Period, he/she will not, directly or indirectly, in one or\na series of transactions, as an individual or as a partner, joint venturer, employee, agent, salesperson, contractor, officer, director or\notherwise, for the benefit of himself or herself or any other person, partnership, firm, corporation, association or other legal entity:\n(i) solicit or induce, or attempt to solicit or induce, any Customer or Prospective Customer of the Company to patronize or do\nbusiness with any other company (or business) that is in the Business conducted by the Company in the Restricted Area; or\nEMPLOYEE’S INITIALS\n/s/ SR\n5\n(ii) request or advise any Customer, supplier or vendor, or any Prospective Customer, prospective supplier or prospective vendor, of\nthe Company, who was a Customer, Prospective Customer, supplier, prospective supplier, vendor or prospective vendor within\none year immediately preceding the termination of the Employee’s employment with the Company, to withdraw, curtail, cancel or\nrefrain from doing business with the Company in any capacity; or\n(iii) manage, operate, be connected with, employed by, sell goods to, or perform services for, or on behalf of, in any manner, any\nCustomer, or Prospective Customer, of the Company either myself or on behalf of any other entity that may employ, engage or\nassociate with me in any fashion.\n(iv)\nrecruit, solicit or otherwise induce any proprietor, partner, stockholder, lender, director, officer, employee, sales agent, joint\nventurer, investor, lessor, supplier, Customer, agent, representative or any other person which has a business relationship with the\nCompany or any Affiliated Entity to discontinue, reduce or detrimentally modify such employment, agency or business\nrelationship with the Company; or\n(v)\nemploy or solicit, or attempt to employ or solicit, for employment any person or agent who is then (or was at any time within\ntwelve (12) months prior to the date Employee or any entity related to Employee seeks to employ such person) employed or\nretained by the Company. Notwithstanding the forgoing, to the extent the Employee works for a larger firm or corporation after\nhis or her termination from the Company and he or she does not have any personal knowledge and/or control over the solicitation\nof or the employment of a Company employee or agent, then this provision shall not be enforceable as it relates to that employee.\nb. Non-Competition. Employee agrees and acknowledges that, during the Restrictive Period, he or she will not, directly or indirectly, for\nhimself , or on behalf of others, as an individual on Employee’s own account, or as a partner, joint venturer, employee, agent, salesman,\ncontractor, officer, director or otherwise, for him/herself or any other person, partnership, firm, corporation, association or other legal\nentity, enter into, engage in, accept employment from, or provide any services to, or for, any business that is in the Business of the\nCompany, or engage in any activity that is competitive with the Company, in the Restricted Area. The parties agree that this non-\ncompetition provision is intended to cover situations where a future business opportunity in which the Employee is engaged or a future\nemployer of the Employee is selling the same or similar products and services in a Business which may compete with the Company’s\nproducts and services to Customers and Prospective Customers of the Company in the Restricted Area. This provision shall not cover\nfuture business opportunities or employers of the Employee that sell different types of products or services in the Restricted Area so long\nas such future business opportunities or employers are not in the Business of the Company.\nNotwithstanding the preceding paragraphs, the spirit and intent of this non-competition clause is not to deny the Employee the ability to\nsupport his or her family, but rather to prevent the Employee from using the knowledge and experiences obtained from the Company in a\nsimilar competitive environment. Along those lines, should the Employee leave the employment of the Employer for any reason, he or\nshe would be prohibited from joining a for-profit cancer testing genetics laboratory and/or company in the Business of the Company in\nthe Restricted Area. The Parties agree that all non-profit medical testing laboratories, hospitals and academic institutions as well as for-\nprofit prenatal and pediatric/constitutional genetic testing laboratories\nEMPLOYEE’S INITIALS\n/s/ SR\n6\nare excluded from the restrictions in paragraph 8(b). In other words, the Employee would be allowed under this non-compete clause to\nwork in any non-profit cancer genetics testing laboratory (e.g., in academia) as well as in a private, for-profit prenatal laboratory or\npediatric/constitutional genetics testing laboratory. Thus, the spirit and intent of this non-competition clause is intended to prevent the\nEmployee from acting in any of the capacities outlined in this paragraph for any “for-profit” cancer genetics testing laboratories that do\nthe type of any one or more of the types of testing defined in the definition of Business in the Restricted Area.\n9. Acknowledgements of Employee.\na.\nThe Employee understands and acknowledges that any violation of this Agreement shall constitute a material breach of this Agreement\nand the Employment Agreement, and it will cause irreparable harm and loss to the Company for which monetary damages will be an\ninsufficient remedy. Therefore, the Parties agree that in addition to any other remedies available, the Company will be entitled to the\nrelief identified in Paragraph No. 10. below.\nb. The Restrictive Covenants shall be construed as agreements independent of any other provision in this Agreement and the existence of\nany claim or cause of action of Employee against the Company shall not constitute a defense to the enforcement of these Restrictive\nCovenants.\nc.\nEmployee agrees that the Restrictive Covenants are reasonably necessary to protect the legitimate business interests of the Company.\nd. Employee agrees that this Agreement may be enforced by the Company’s successor in interest by way of merger, business combination\nor consolidation where a majority of the surviving entity is not owned by Company’s shareholders who owned a majority of the\nCompany’s voting shares prior to such transaction and Employee acknowledges and agrees that successors are intended beneficiaries of\nthis Agreement.\ne.\nEmployee agrees that if any portion of the Restrictive Covenants is held by a court of competent jurisdiction to be unreasonable,\narbitrary or against public policy for any reason, such shall be modified accordingly as to time, geographic area and line of business so as\nto be enforceable to the fullest extent possible as to time, area and line of business.\nf. Employee acknowledges that any violations of the Agreement will be a material breach of this Agreement and may subject the\nEmployee, and/or any individual(s), partnership, corporation, joint venture or other type of business with whom the Employee is then\naffiliated or employed, to monetary and other damages.\ng. Employee agrees that any failure of the Company to enforce the Restrictive Covenants against any other employee, for any reason, shall\nnot constitute a defense to enforcement of the Restrictive Covenants against the Employee.\n10. Specific Performance; Injunction. The Parties agree and acknowledge that the restrictions contained in Paragraphs 1-8 are reasonable in scope\nand duration and are necessary to protect the Company. If any provision of Paragraphs 1-8 as applied to any party or to any circumstance is judged\nby a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the validity or enforceability of any other\nprovision of this Agreement. If any such provision, or any part thereof, is held to be unenforceable because of the duration of such provision or the\narea covered thereby,\nEMPLOYEE’S INITIALS\n/s/ SR\n7\nthe court making such determination shall have the power to reduce the duration and/or area of such provision, and/or to delete specific words or\nphrases, and in its reduced form, such provision shall then be enforceable and shall be enforced.\nAny unauthorized use or disclosure of Confidential Information in violation of Paragraphs 2-7 above or violation of the Restrictive Covenant\nin Paragraph 8 shall constitute a material breach of this Agreement and will cause irreparable harm and loss to the Company for which monetary\ndamages may be an insufficient remedy. Therefore, in addition to any other remedy available, the Company will be entitled to all available civil\nremedies, including:\na.\nTemporary and permanent injunctive relief, without the necessity of posting a bond, restraining Employee or Representatives and any\nother person, partnership, firm, corporation, association or other legal entity acting in concert with Employee from any actual or\nthreatened unauthorized disclosure or use of Confidential Information, in whole or in part, or from rendering any service to any other\nperson, partnership, firm, corporation, association or other legal entity to whom such Confidential Information in whole or in part, has\nbeen disclosed or used or is threatened to be disclosed or used; and\nb. Temporary and permanent injunctive relief, without the necessity of posting a bond, restraining the Employee from violating, directly or\nindirectly, the restrictions of the Restrictive Covenant in any capacity identified in Paragraph 8, supra, and restricting third parties from\naiding and abetting any violations of the Restrictive Covenant; and\nc.\nCompensatory damages, including actual loss from misappropriation and unjust enrichment, and any and all legal fees, including without\nlimitation, all attorneys’ fees, court costs, and any other related fees and/or costs incurred by the Company in enforcing this Agreement.\nNotwithstanding the forgoing, the Company acknowledges and agrees that the Employee will not be liable for the payment of any damages or\nfees owed to the Company through the operation of Paragraph 10c above, unless and until a court of competent jurisdiction has determined that the\nCompany or any successor is entitled to such recovery.\nNothing in this Agreement shall be construed as prohibiting the Company from pursuing any other legal or equitable remedies available to it\nfor actual or threatened breach of the provisions of Paragraphs 1 – 8 of this Agreement, and the existence of any claim or cause of action by\nEmployee against the Company shall not constitute a defense to the enforcement by the Company of any of the provisions of this Agreement. The\nCompany and its Affiliated Entities have fully performed all obligations entitling it to the covenants of Paragraphs 1 – 8 of this Agreement and\ntherefore such prohibitions are not executory or otherwise subject to rejection under the bankruptcy code.\n11. Duty to Disclose Agreement and to Report New Employer. Employee acknowledges that the Company has a legitimate business purpose in\nthe protection of its Confidential Information. Employee also recognizes and agrees that the Company has the right to such information as is\nreasonably necessary to inform the Company whether the terms of this Agreement are being complied with. Accordingly, Employee agrees that\nEmployee will promptly notify any new employer of his/her obligations contained here. Employee also will provide the Company with the identity\nof his/her new employer(s) and a description of the services being provided by him/her in sufficient detail to allow the Company to reasonably\ndetermine whether such activities fall within the scope of activities prohibited by the provisions of this Agreement\nEMPLOYEE’S INITIALS\n/s/ SR\n8\n12. Representations as to Prior or Other Agreements. Employee represents and warrants that he/she is able to perform the contemplated duties of\nemployment without being in breach of confidentiality agreements or disclosing proprietary information of any third party, and that no proprietary\ninformation of any third party shall be disclosed to the Company. Employee further represents and warrants that he/she is not prohibited from\nentering into this Agreement or performing services under it by any non-competition, non-solicitation, anti-piracy agreement, relationship\nagreement, or any other restrictions. Employee agrees to indemnify and hold the Company harmless from all claims or causes of action by any\nperson or entity against the Company arising out of any alleged breach by Employee of any such agreement or any other restrictions inconsistent\nwith the foregoing representations.\n13. Company Use of Employee Name, Image and Voice. The Company may use and publish Employee’s name and picture, including audio or\nvideo tape recordings, for purposes relating to its business without a specific release from Employee.\n14. Termination. Employee agrees to bring any claims that he/she may have against the Company within three hundred (300) days of the day that\nEmployee knew, or should have known, of the facts giving rise to the cause of action and waives any longer, but not shorter, statutory or other\nlimitations periods. This includes, but is not limited to, the initial filing of a charge with the Equal Employment Opportunity Commission and/or\nstate equivalent civil rights agency. However, Employee understands that he/she will thereafter have the right to pursue any federal claim in the\nmanner prescribed in any right to sue letter that is issued by an agency.\n15. Nondisparagement. Employee shall not make any disparaging or defamatory comments about the Company, whether true or not, except to\ncomply with any summons, court order or subpoena.\n16. Waiver of Jury Trial. THE COMPANY AND EMPLOYEE EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION\nOR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR UNDER ANY INSTRUMENT,\nDOCUMENT OR AGREEMENT DELIVERED IN CONNECTION HEREWITH OR HEREAFTER OR RELATED IN ANY FASHION\nTO EMPLOYEE’S EMPLOYMENT WITH COMPANY.\n17. Governing Law, Venue and Personal Jurisdiction. This Agreement shall be governed by, construed and enforced in accordance with the laws\nof state of Florida without regard to any statutory or common-law provision pertaining to conflicts of laws. The parties agree that courts of\ncompetent jurisdiction in Lee County, Florida and the United States District Court for the Southern District of Florida shall have concurrent\njurisdiction for purposes of entering temporary, preliminary and permanent injunctive relief and with regard to any action arising out of any breach\nor alleged breach of this Agreement. Employee waives personal service of any and all process upon Employee and consents that all such service of\nprocess may be made by certified or registered mail directed to Employee at the address stated in the signature section of this Agreement, with\nservice so made deemed to be completed upon actual receipt thereof. Employee waives any objection to jurisdiction and venue of any action\ninstituted against Employee as provided herein and agrees not to assert any defense based on lack of jurisdiction or venue. Employee further agrees\nthat any action arising out of this Agreement or the relationship between the parties established herein shall be brought only in courts of competent\njurisdiction in Lee County, Florida or the United States District Court for the Southern District of Florida.\n18. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and may not be assigned by\nEmployee. This Agreement shall inure to the benefit of Company’s successors.\nEMPLOYEE’S INITIALS\n/s/ SR\n9\n19. Entire Agreement. This Agreement is the entire agreement of the Parties with regard to the matters addressed herein, and supersedes all prior\nnegotiations, preliminary agreements, and all prior and contemporaneous discussions and understandings of the signatories in connection with the\nsubject matter of this Agreement, except however, that this Agreement shall be read in pari materia with the Employment Agreement executed by\nEmployee. This Agreement may be modified only by written instrument signed by the Company and Employee.\n20. Severability. In case any one or more provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in\nany respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such\ninvalid, illegal were unenforceable provision had not been contained herein.\n21. Waiver. The waiver by the Company of a breach or threatened breach of this Agreement by Employee cannot be construed as a waiver of any\nsubsequent breach by Employee unless such waiver so provides by its terms. The refusal or failure of the Company to enforce any specific restrictive\ncovenant in this Agreement against Employee, or any other person for any reason, shall not constitute a defense to the enforcement by the Company\nof any other restrictive covenant provision set forth in this Agreement.\n22. Consideration. Employee expressly acknowledges and agrees that the execution by the Company of the Employment Agreement with the\nEmployee constitutes full, adequate and sufficient consideration to Employee for the covenants of Employee under this Agreement.\n23. Notices. All notices required by this Agreement shall be in writing, shall be personally delivered or sent by U.S. Registered or Certified Mail,\nreturn receipt requested, and shall be addressed to the signatories at the addresses shown on the signature page of this Agreement.\n24. Acknowledgements. Employee acknowledge(s) that he or she has reviewed this Agreement prior to signing it, that he or she knows and\nunderstands the contents, purposes and effect of this Agreement, and that he or she has been given a signed copy of this Agreement for his or her\nrecords. Employee further acknowledges and agrees that he or she has entered into this Agreement freely, without any duress or coercion.\n25. Captions. Captions to paragraphs and sections of this Agreement have been included solely for the sake of convenient reference and are entirely\nwithout substantive effect.\n26. Counterparts. This Agreement may be executed in counterparts, by facsimile or Adobe Acrobat PDF file each of which shall be deemed an\noriginal for all intents and purposes.\n[Signatures Appear on the Following Page]\nEMPLOYEE’S INITIALS\n/s/ SR\n10\nIN WITNESS WHEREOF, THE UNDERSIGNED STATE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT AND KNOW\nAND UNDERSTAND THE CONTENTS THEREOF AND THAT THEY AGREE TO BE BOUND AND ABIDE BY THE REPRESENTATIONS,\nCOVENANTS, PROMISES AND WARRANTIES CONTAINED HEREIN.\nBy: /s/ Steven A. Ross\n4/19/13\nEmployee Signature\nDate\nEmployee Name:\nSteven A. Ross\nEmployee Address: 16520 S. Tamiami Tr 138-131\nFort Myers, FL 33908\nNeoGenomics Laboratories, Inc.\n12701 Commonwealth Drive, Suite #5\nFort Myers, FL 33913\nBy: /s/ Douglas M. VanOort\n4/19/13\nDate\nName: Douglas M. VanOort\nTitle: Chairman and CEO\nEMPLOYEE’S INITIALS\n/s/ SR\n11
+da6a4e9e5efb25bf1c0caacc891678a7.pdf	effective_date jurisdiction party term	EX-99.(D)(3)(B) 15 dex99d3b.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)(B)\nCONFIDENTIALITY AGREEMENT (Mutual)\nThis Mutual Confidentiality Agreement (the “Agreement”) is entered into and is effective as of July 8, 2002 (the “Effective Date”) by and between\nInterTrust Technologies Corporation, a Delaware corporation, with places of business at 4800 Patrick Henry Drive, Santa Clara, California 95054\n(“InterTrust”) and Koninklijke Philips Electronics N.V., a Netherlands corporation, with a place of business at The Breitner Tower, Amstelplein,\n1096 HA Amsterdam, The Netherlands (“Company”).\nWHEREAS, the parties may disclose to each other certain confidential information defined below and InterTrust and/or Company desires to keep\nsuch information confidential;\nWHEREAS, in consideration of the disclosure of such information to InterTrust and/or Company, InterTrust and/or Company is willing to keep such\ninformation confidential in accordance with the terms and conditions set forth in this Agreement;\nNOW, THEREFORE, InterTrust and Company hereby agree as follows:\n1. DEFINITION OF CONFIDENTIAL INFORMATION. The parties acknowledge that the terms and conditions of this Confidentiality\nAgreement, the existence of the discussions between Company and InterTrust and other information disclosed, as set forth below, will be\nconsidered confidential (“Confidential Information”); provided that information disclosed by the disclosing party (“Discloser”) will be\nconsidered Confidential Information by the receiving party (“Recipient”), only if such information is conspicuously marked as “Confidential”\nif communicated in writing, or if communicated orally, identified as “Confidential” at time of disclosure. If the Discloser fails to mark or\nidentify disclosed Confidential Information as “Confidential”, the Recipient shall be responsible for protecting such disclosures in accordance\nwith this Agreement from the date of receipt of written notice by the Discloser identifying the disclosure as “Confidential” and requesting that\nsuch disclosure be treated as Confidential Information under this Agreement. Confidential Information shall not include information that (a) is\nat the time of disclosure, or subsequently becomes, generally available to the public through no fault or breach on the part of Recipient, as of\nthe date such information becomes generally available; (b) Recipient can demonstrate to have had rightfully in its possession prior to\ndisclosure to Recipient by Discloser; (c) is independently developed by Recipient without the use of any Confidential Information; or (d)\nRecipient rightfully obtains from a third party who has the right to transfer or disclose it. Confidential Information generally relates to each\nparty’s respective business, strategies, technologies, intellectual property, and related information.\n2. NON -DISCLOSURE AND NON-USE OF CONFIDENTIAL INFORMATION.\na) Recipient agrees to use the same degree of care that it uses to protect its own confidential and proprietary information of similar importance\n(but no event less than reasonable care) to prevent the unauthorized use, disclosure, publication or dissemination of Confidential Information.\nCompany may disclose the Confidential Information only to its employees and any direct or indirect parent, majority-owned subsidiary or\nAffiliate, and their employees, agents and professional advisors, provided that such party agrees to be bound by this Agreement to the same\nextent as Company is bound and Company agrees to be responsible for any breach by these entities, agents and advisors. Affiliate shall mean\nany entity with more than 50% of its equity owned or controlled directly or indirectly by Koninklijke Philips Electronics N.V. The purpose of\ndisclosure by the Discloser to the Recipient of the Confidential Information is to allow the Recipient to evaluate and comment upon certain\nConfidential Information so as to enable the Recipient to evaluate a potential business relationship or strategic transaction between Recipient\nand Discloser (the “Purpose”). Recipient agrees not to use Confidential Information otherwise for its own or any third party’s benefit for any\npurpose whatsoever, other than the Purpose, without the prior written approval of an authorized representative of Discloser in each instance.\nRecipient may disclose Confidential Information if required by any judicial or governmental request, requirement or order; provided that\nRecipient will take reasonable steps to notify Discloser of\nInitials:\n/\n1\nsuch request or order and provides Discloser with sufficient prior notice to allow Discloser to contest such request, requirement or order.\nb) Recipient agrees that without the Discloser’s prior written consent, the Recipient shall not, and it shall direct its directors, officers,\nemployees and agents having access to the Confidential Information not to, disclose to any third person either that the Recipient has received\nConfidential Information or that discussions or negotiations are taking place concerning a possible transaction between the Recipient and the\nDiscloser; provided that the Recipient may make such disclosure if the Recipient has received the written opinion of its outside counsel that\nsuch disclosure must be made by the Recipient in order that the Recipient not commit a violation of law or applicable stock exchange rules,\nand the Recipient has informed the Discloser, prior to such disclosure, that intends to make such disclosure.\n3. OWNERSHIP OF CONFIDENTIAL INFORMATION. All Confidential Information remains the property of Discloser and no license or\nother rights to Confidential Information is granted or implied hereby.\n4. TERM. Unless earlier terminated by either party in writing, this Agreement shall expire December 31, 2002. Recipient’s duty to protect\nDiscloser’s Confidential Information shall survive expiration or termination of this Agreement and shall expire three (3) years from the date of\ndisclosure of such Confidential Information.\n5. INDEPENDENT DEVELOPMENT. Discloser understands that Recipient may currently or in the future be developing information\ninternally, or receiving information from other parties that may be similar to Discloser’s information. Accordingly, nothing in this Agreement\nwill be construed as a representation or inference that Recipient will not develop products, or have products developed for it, that, without\nviolation of this Agreement, compete with the products or systems contemplated by Discloser’s Confidential Information.\n6. NO WARRANTY. Discloser warrants that it has the right to disclose the Confidential Information to Recipient. Otherwise, all information is\nprovided “AS IS” and without any warranty, express, implied or otherwise, regarding its accuracy or performance, or the fitness of the\ninformation for a particular purpose.\n7. RETURN OF TANGIBLE INFORMATION. Recipient will return any and all tangible Confidential Information provided to it by\nDiscloser, including but not limited to all computer programs, documentation, notes, plans, drawings, and copies thereof, to Discloser\nimmediately upon Discloser’s written request, provided, however, Recipient shall destroy such information if and to the extent it has been been\nincorporated with Confidential Information of Recipient.\n8. NO EXPORT. Recipient certifies that no Confidential Information, or any portion thereof, will be exported to any country in violation of the\nUnited States Export Administration Act and regulations thereunder.\n9. ENTIRE AGREEMENT AND GOVERNING LAW. This Agreement constitutes the entire agreement with respect to the Confidential\nInformation disclosed herein and in connection herewith and supersedes all prior or contemporaneous oral or written agreements concerning\nsuch Confidential Information. This Agreement may not be amended except by the written agreement signed by authorized representatives of\nboth parties. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding that body of\nlaw relating to conflict of laws. The parties to this Agreement hereby consent to jurisdiction and venue in the Courts of the State of California\nand in the U.S . District Courts in the City of San Jose, California.\n2\nUnderstood and agreed:\nFor: InterTrust Technologies\nCorporation\nFor: Koninklijke Philips Electronics N.V.\n/s/ Patrick Nguyen\n07/08/02\n/s/ Ivo P.J. Verheijden\n07/08/02\nBy: (Signature)\nDate\nBy (Signature)\nDate\nPatrick Nguyen, Executive Vice\nPresident\nIvo P.J. Verheijden, Associate General Counsel\nPrinted Name and Title\nPrinted Name and Title\n3	EX-99.(D)(3)(B) 15 dex99d3b.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)(B)\nCONFIDENTIALITY AGREEMENT (Mutual)\nThis Mutual Confidentiality Agreement (the “Agreement”) is entered into and is effective as of July 8, 2002 (the “Effective Date”) by and between\nInterTrust Technologies Corporation, a Delaware corporation, with places of business at 4800 Patrick Henry Drive, Santa Clara, California 95054\n(“InterTrust”) and Koninklijke Philips Electronics N.V., a Netherlands corporation, with a place of business at The Breitner Tower, Amstelplein,\n1096 HA Amsterdam, The Netherlands (“Company”).\nWHEREAS, the parties may disclose to each other certain confidential information defined below and InterTrust and/or Company desires to keep\nsuch information confidential;\nWHEREAS, in consideration of the disclosure of such information to InterTrust and/or Company, InterTrust and/or Company is willing to keep such\ninformation confidential in accordance with the terms and conditions set forth in this Agreement;\nNOW, THEREFORE, InterTrust and Company hereby agree as follows:\n1. DEFINITION OF CONFIDENTIAL INFORMATION. The parties acknowledge that the terms and conditions of this Confidentiality\nAgreement, the existence of the discussions between Company and InterTrust and other information disclosed, as set forth below, will be\nconsidered confidential (“Confidential Information™); provided that information disclosed by the disclosing party (“Discloser”) will be\nconsidered Confidential Information by the receiving party (“Recipient”), only if such information is conspicuously marked as “Confidential”\nif communicated in writing, or if communicated orally, identified as “Confidential” at time of disclosure. If the Discloser fails to mark or\nidentify disclosed Confidential Information as “Confidential”, the Recipient shall be responsible for protecting such disclosures in accordance\nwith this Agreement from the date of receipt of written notice by the Discloser identifying the disclosure as “Confidential” and requesting that\nsuch disclosure be treated as Confidential Information under this Agreement. Confidential Information shall not include information that (a) is\nat the time of disclosure, or subsequently becomes, generally available to the public through no fault or breach on the part of Recipient, as of\nthe date such information becomes generally available; (b) Recipient can demonstrate to have had rightfully in its possession prior to\ndisclosure to Recipient by Discloser; (c) is independently developed by Recipient without the use of any Confidential Information; or (d)\nRecipient rightfully obtains from a third party who has the right to transfer or disclose it. Confidential Information generally relates to each\nparty’s respective business, strategies, technologies, intellectual property, and related information.\n2. NON-DISCLOSURE AND NON-USE OF CONFIDENTIAL INFORMATION.\na) Recipient agrees to use the same degree of care that it uses to protect its own confidential and proprietary information of similar importance\n(but no event less than reasonable care) to prevent the unauthorized use, disclosure, publication or dissemination of Confidential Information.\nCompany may disclose the Confidential Information only to its employees and any direct or indirect parent, majority-owned subsidiary or\nAffiliate, and their employees, agents and professional advisors, provided that such party agrees to be bound by this Agreement to the same\nextent as Company is bound and Company agrees to be responsible for any breach by these entities, agents and advisors. Affiliate shall mean\nany entity with more than 50% of its equity owned or controlled directly or indirectly by Koninklijke Philips Electronics N.V. The purpose of\ndisclosure by the Discloser to the Recipient of the Confidential Information is to allow the Recipient to evaluate and comment upon certain\nConfidential Information so as to enable the Recipient to evaluate a potential business relationship or strategic transaction between Recipient\nand Discloser (the “Purpose”). Recipient agrees not to use Confidential Information otherwise for its own or any third party’s benefit for any\npurpose whatsoever, other than the Purpose, without the prior written approval of an authorized representative of Discloser in each instance.\nRecipient may disclose Confidential Information if required by any judicial or governmental request, requirement or order; provided that\nRecipient will take reasonable steps to notify Discloser of\nInitials: /\nsuch request or order and provides Discloser with sufficient prior notice to allow Discloser to contest such request, requirement or order.\nb) Recipient agrees that without the Discloser’s prior written consent, the Recipient shall not, and it shall direct its directors, officers,\nemployees and agents having access to the Confidential Information not to, disclose to any third person either that the Recipient has received\nConfidential Information or that discussions or negotiations are taking place concerning a possible transaction between the Recipient and the\nDiscloser; provided that the Recipient may make such disclosure if the Recipient has received the written opinion of its outside counsel that\nsuch disclosure must be made by the Recipient in order that the Recipient not commit a violation of law or applicable stock exchange rules,\nand the Recipient has informed the Discloser, prior to such disclosure, that intends to make such disclosure.\nOWNERSHIP OF CONFIDENTIAL INFORMATION. All Confidential Information remains the property of Discloser and no license or\nother rights to Confidential Information is granted or implied hereby.\nTERM. Unless earlier terminated by either party in writing, this Agreement shall expire December 31, 2002. Recipient’s duty to protect\nDiscloser’s Confidential Information shall survive expiration or termination of this Agreement and shall expire three (3) years from the date of\ndisclosure of such Confidential Information.\nINDEPENDENT DEVELOPMENT. Discloser understands that Recipient may currently or in the future be developing information\ninternally, or receiving information from other parties that may be similar to Discloser’s information. Accordingly, nothing in this Agreement\nwill be construed as a representation or inference that Recipient will not develop products, or have products developed for it, that, without\nviolation of this Agreement, compete with the products or systems contemplated by Discloser’s Confidential Information.\nNO WARRANTY. Discloser warrants that it has the right to disclose the Confidential Information to Recipient. Otherwise, all information is\nprovided “AS IS” and without any warranty, express, implied or otherwise, regarding its accuracy or performance, or the fitness of the\ninformation for a particular purpose.\nRETURN OF TANGIBLE INFORMATION. Recipient will return any and all tangible Confidential Information provided to it by\nDiscloser, including but not limited to all computer programs, documentation, notes, plans, drawings, and copies thereof, to Discloser\nimmediately upon Discloser’s written request, provided, however, Recipient shall destroy such information if and to the extent it has been been\nincorporated with Confidential Information of Recipient.\nNO EXPORT. Recipient certifies that no Confidential Information, or any portion thereof, will be exported to any country in violation of the\nUnited States Export Administration Act and regulations thereunder.\nENTIRE AGREEMENT AND GOVERNING LAW. This Agreement constitutes the entire agreement with respect to the Confidential\nInformation disclosed herein and in connection herewith and supersedes all prior or contemporaneous oral or written agreements concerning\nsuch Confidential Information. This Agreement may not be amended except by the written agreement signed by authorized representatives of\nboth parties. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding that body of\nlaw relating to conflict of laws. The parties to this Agreement hereby consent to jurisdiction and venue in the Courts of the State of California\nand in the U.S. District Courts in the City of San Jose, California.\nUnderstood and agreed:\nFor: InterTrust Technologies\nCorporation\n/s/  Patrick Nguyen\n07/08/02\nBy: (Signature)\nDate\nPatrick Nguyen, Executive Vice\nPresident\nPrinted Name and Title\nFor: Koninklijke Philips Electronics N.V.\n/s/  Ivo P.J. Verheijden 07/08/02\nBy (Signature) Date\nIvo P.J. Verheijden, Associate General Counsel\nPrinted Name and Title	EX-99.(D)(3)(B) 15 dex99d3b.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)(B)\nCONFIDENTIALITY AGREEMENT (Mutual)\nThis Mutual Confidentiality Agreement (the "Agreement") is entered into and is effective as of July 8, 2002 (the "Effective Date") by and between\nInterTrust Technologies Corporation, a Delaware corporation, with places of business at 4800 Patrick Henry Drive, Santa Clara, California 95054\n("InterTrust") and Koninklijke Philips Electronics N.V., a Netherlands corporation, with a place of business at The Breitner Tower, Amstelplein,\n1096 HA Amsterdam, The Netherlands ("Company.").\nWHEREAS, the parties may disclose to each other certain confidential information defined below and InterTrust and/or Company desires to keep\nsuch information confidential;\nWHEREAS, in consideration of the disclosure of such information to InterTrust and/or Company, nterTrust and/or Company is willing to keep such\ninformation confidential in accordance with the terms and conditions set forth in this Agreement;\nNOW, THEREFORE, InterTrust and Company hereby agree as follows:\n1. DEFINITION OF CONFIDENTIAL INFORMATION. The parties acknowledge that the terms and conditions of this Confidentiality\nAgreement, the existence of the discussions between Company and InterTrust and other information disclosed, as set forth below, will be\nconsidered confidential ("Confidential Information"); provided that information disclosed by the disclosing party ("Discloser") will be\nconsidered Confidential Information by the receiving party ("Recipient"), only if such information is conspicuously marked as "Confidential"\nif communicated in writing, or if communicated orally, identified as "Confidential" at time of disclosure. If the Discloser fails to mark or\nidentify disclosed Confidential Information as "Confidential", the Recipient shall be responsible for protecting such disclosures in accordance\nwith\nthis\nAgreement from the date of receipt of written notice by the Discloser identifying the disclosure as "Confidential" and requesting that\nsuch disclosure be treated as Confidential Information under this Agreement. Confidential Information shall not include information that (a) is\nat the time of disclosure, or subsequently becomes, generally available to the public through no fault or breach on the part of Recipient, as of\nthe\ndate such information becomes generally available; (b) Recipient can demonstrate to have had rightfully in its possession prior to\ndisclosure to Recipient by Discloser; (c) is independently developed by Recipient without the use of any Confidential Information; or (d)\nRecipient rightfully obtains from a third party who has the right to transfer or disclose it. Confidential Information generally relates to each\nparty's respective business, strategies, technologies, intellectual property, and related information.\n2.\nNON-DISCLOSURE AND NON-USE OF CONFIDENTIAL INFORMATION.\na) Recipient agrees to use the same degree of care that it uses to protect its own confidential and proprietary information of similar importance\n(but no event less than reasonable care) to prevent the unauthorized use, disclosure, publication or dissemination of Confidential Information.\nCompany may disclose the Confidential Information only to its employees and any direct or indirect parent, majority-owned subsidiary or\nAffiliate, and their employees, agents and professional advisors, provided that such party agrees to be bound by this Agreement to the same\nextent as Company is bound and Company agrees to be responsible for any breach by these entities, agents and advisors. Affiliate shall mean\nany entity with more than 50% of its equity owned or controlled directly or indirectly by Koninklijke Philips Electronics N.V. The purpose\nof\ndisclosure by the Discloser to the Recipient of the Confidential Information is to allow the Recipient to evaluate and comment upon certain\nConfidential Information so as to enable the Recipient to evaluate a potential business relationship or strategic transaction between Recipient\nand\nDiscloser (the "Purpose"). Recipient agrees not to use Confidential Information otherwise for its own or any third party's benefit for any\npurpose whatsoever, other than the Purpose, without the prior written approval of an authorized representative of Discloser in each instance.\nRecipient may disclose Confidential Information if required by any judicial or governmental request, requirement or order; provided that\nRecipient will take reasonable steps to notify Discloser of\nInitials:\n1\nsuch request or order and provides Discloser with sufficient prior notice to allow Discloser to contest such request, requirement or order.\nb) Recipient agrees that without the Discloser's prior written consent, the Recipient shall not, and it shall direct its directors, officers,\nemployees and agents having access to the Confidential Information not to, disclose to any third person either that the Recipient has received\nConfidential Information or that discussions or negotiations are taking place concerning a possible transaction between the Recipient and the\nDiscloser; provided that the Recipient may make such disclosure if the Recipient has received the written opinion of its outside counsel that\nsuch disclosure must be made by the Recipient in order that the Recipient not commit a violation of law or applicable stock exchange rules,\nand the Recipient has informed the Discloser, prior to such disclosure, that intends to make such disclosure.\n3.\nOWNERSHIP OF CONFIDENTIAL INFORMATION. All Confidential Information remains the property of Discloser and no license or\nother rights to Confidential Information is granted or implied hereby.\n4.\nTERM. Unless earlier terminated by either party in writing, this Agreement shall expire December 31, 2002. Recipient's duty to protect\nDiscloser's Confidential Information shall survive expiration or termination of this Agreement and shall expire three (3) years from the date of\ndisclosure of such Confidential Information.\n5.\nINDEPENDENT DEVELOPMENT. Discloser understands that Recipient may currently or in the future be developing information\ninternally, or receiving information from other parties that may be similar to Discloser's information. Accordingly, nothing in this Agreement\nwill be construed as a representation or inference that Recipient will not develop products, or have products developed for it, that, without\nviolation of this Agreement, compete with the products or systems contemplated by Discloser's Confidential Information.\n6.\nNO WARRANTY. Discloser warrants that it has the right to disclose the Confidential Information to Recipient. Otherwise, all information is\nprovided "AS IS" and without any warranty, express, implied or otherwise, regarding its accuracy or performance, or the fitness of the\ninformation for a particular purpose.\n7.\nRETURN OF TANGIBLE INFORMATION. Recipient will return any and all tangible Confidentia Information provided to it by\nDiscloser, including but not limited to all computer programs, documentation, notes, plans, drawings, and copies thereof, to Discloser\nimmediately upon Discloser's written request, provided, however, Recipient shall destroy such information if and to the extent it has been been\nincorporated with Confidential Information of Recipient\n8.\nNO EXPORT. Recipient certifies that no Confidential Information, or any portion thereof, will be exported to any country in violation of the\nUnited States Export Administration Act and regulations thereunder.\n9.\nENTIRE AGREEMENT AND GOVERNING LAW. This Agreement constitutes the entire agreement with respect to the Confidential\nInformation disclosed herein and in connection herewith and supersedes all prior or contemporaneous oral or written agreements concerning\nsuch Confidential Information. This Agreement may not be amended except by the written agreement signed by authorized representatives of\nboth parties. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding that body of\nlaw relating to conflict of laws. The parties to this Agreement hereby consent to jurisdiction and venue in the Courts of the State of California\nand in the U.S. District Courts in the City of San Jose, California.\n2\nUnderstood and agreed:\nFor: InterTrust Technologies\nFor: Koninklijke Philips Electronics N.V.\nCorporation\n/s/ Patrick Nguyen\n/s/ Ivo P.J. Verheijden\n07/08/02\n07/08/02\nBy: (Signature)\nBy (Signature)\nDate\nDate\nPatrick Nguyen, Executive Vice\nIvo P.J. Verheijden, Associate General Counsel\nPresident\nPrinted Name and Title\nPrinted Name and Title\n3	EX-99.(D)(3)(B) 15 dex99d3b.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(3)(B)\nCONFIDENTIALITY AGREEMENT (Mutual)\nThis Mutual Confidentiality Agreement (the “Agreement”) is entered into and is effective as of July 8, 2002 (the “Effective Date”) by and between\nInterTrust Technologies Corporation, a Delaware corporation, with places of business at 4800 Patrick Henry Drive, Santa Clara, California 95054\n(“InterTrust”) and Koninklijke Philips Electronics N.V., a Netherlands corporation, with a place of business at The Breitner Tower, Amstelplein,\n1096 HA Amsterdam, The Netherlands (“Company”).\nWHEREAS, the parties may disclose to each other certain confidential information defined below and InterTrust and/or Company desires to keep\nsuch information confidential;\nWHEREAS, in consideration of the disclosure of such information to InterTrust and/or Company, InterTrust and/or Company is willing to keep such\ninformation confidential in accordance with the terms and conditions set forth in this Agreement;\nNOW, THEREFORE, InterTrust and Company hereby agree as follows:\n1. DEFINITION OF CONFIDENTIAL INFORMATION. The parties acknowledge that the terms and conditions of this Confidentiality\nAgreement, the existence of the discussions between Company and InterTrust and other information disclosed, as set forth below, will be\nconsidered confidential (“Confidential Information”); provided that information disclosed by the disclosing party (“Discloser”) will be\nconsidered Confidential Information by the receiving party (“Recipient”), only if such information is conspicuously marked as “Confidential”\nif communicated in writing, or if communicated orally, identified as “Confidential” at time of disclosure. If the Discloser fails to mark or\nidentify disclosed Confidential Information as “Confidential”, the Recipient shall be responsible for protecting such disclosures in accordance\nwith this Agreement from the date of receipt of written notice by the Discloser identifying the disclosure as “Confidential” and requesting that\nsuch disclosure be treated as Confidential Information under this Agreement. Confidential Information shall not include information that (a) is\nat the time of disclosure, or subsequently becomes, generally available to the public through no fault or breach on the part of Recipient, as of\nthe date such information becomes generally available; (b) Recipient can demonstrate to have had rightfully in its possession prior to\ndisclosure to Recipient by Discloser; (c) is independently developed by Recipient without the use of any Confidential Information; or (d)\nRecipient rightfully obtains from a third party who has the right to transfer or disclose it. Confidential Information generally relates to each\nparty’s respective business, strategies, technologies, intellectual property, and related information.\n2. NON -DISCLOSURE AND NON-USE OF CONFIDENTIAL INFORMATION.\na) Recipient agrees to use the same degree of care that it uses to protect its own confidential and proprietary information of similar importance\n(but no event less than reasonable care) to prevent the unauthorized use, disclosure, publication or dissemination of Confidential Information.\nCompany may disclose the Confidential Information only to its employees and any direct or indirect parent, majority-owned subsidiary or\nAffiliate, and their employees, agents and professional advisors, provided that such party agrees to be bound by this Agreement to the same\nextent as Company is bound and Company agrees to be responsible for any breach by these entities, agents and advisors. Affiliate shall mean\nany entity with more than 50% of its equity owned or controlled directly or indirectly by Koninklijke Philips Electronics N.V. The purpose of\ndisclosure by the Discloser to the Recipient of the Confidential Information is to allow the Recipient to evaluate and comment upon certain\nConfidential Information so as to enable the Recipient to evaluate a potential business relationship or strategic transaction between Recipient\nand Discloser (the “Purpose”). Recipient agrees not to use Confidential Information otherwise for its own or any third party’s benefit for any\npurpose whatsoever, other than the Purpose, without the prior written approval of an authorized representative of Discloser in each instance.\nRecipient may disclose Confidential Information if required by any judicial or governmental request, requirement or order; provided that\nRecipient will take reasonable steps to notify Discloser of\nInitials:\n/\n1\nsuch request or order and provides Discloser with sufficient prior notice to allow Discloser to contest such request, requirement or order.\nb) Recipient agrees that without the Discloser’s prior written consent, the Recipient shall not, and it shall direct its directors, officers,\nemployees and agents having access to the Confidential Information not to, disclose to any third person either that the Recipient has received\nConfidential Information or that discussions or negotiations are taking place concerning a possible transaction between the Recipient and the\nDiscloser; provided that the Recipient may make such disclosure if the Recipient has received the written opinion of its outside counsel that\nsuch disclosure must be made by the Recipient in order that the Recipient not commit a violation of law or applicable stock exchange rules,\nand the Recipient has informed the Discloser, prior to such disclosure, that intends to make such disclosure.\n3. OWNERSHIP OF CONFIDENTIAL INFORMATION. All Confidential Information remains the property of Discloser and no license or\nother rights to Confidential Information is granted or implied hereby.\n4. TERM. Unless earlier terminated by either party in writing, this Agreement shall expire December 31, 2002. Recipient’s duty to protect\nDiscloser’s Confidential Information shall survive expiration or termination of this Agreement and shall expire three (3) years from the date of\ndisclosure of such Confidential Information.\n5. INDEPENDENT DEVELOPMENT. Discloser understands that Recipient may currently or in the future be developing information\ninternally, or receiving information from other parties that may be similar to Discloser’s information. Accordingly, nothing in this Agreement\nwill be construed as a representation or inference that Recipient will not develop products, or have products developed for it, that, without\nviolation of this Agreement, compete with the products or systems contemplated by Discloser’s Confidential Information.\n6. NO WARRANTY. Discloser warrants that it has the right to disclose the Confidential Information to Recipient. Otherwise, all information is\nprovided “AS IS” and without any warranty, express, implied or otherwise, regarding its accuracy or performance, or the fitness of the\ninformation for a particular purpose.\n7. RETURN OF TANGIBLE INFORMATION. Recipient will return any and all tangible Confidential Information provided to it by\nDiscloser, including but not limited to all computer programs, documentation, notes, plans, drawings, and copies thereof, to Discloser\nimmediately upon Discloser’s written request, provided, however, Recipient shall destroy such information if and to the extent it has been been\nincorporated with Confidential Information of Recipient.\n8. NO EXPORT. Recipient certifies that no Confidential Information, or any portion thereof, will be exported to any country in violation of the\nUnited States Export Administration Act and regulations thereunder.\n9. ENTIRE AGREEMENT AND GOVERNING LAW. This Agreement constitutes the entire agreement with respect to the Confidential\nInformation disclosed herein and in connection herewith and supersedes all prior or contemporaneous oral or written agreements concerning\nsuch Confidential Information. This Agreement may not be amended except by the written agreement signed by authorized representatives of\nboth parties. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding that body of\nlaw relating to conflict of laws. The parties to this Agreement hereby consent to jurisdiction and venue in the Courts of the State of California\nand in the U.S . District Courts in the City of San Jose, California.\n2\nUnderstood and agreed:\nFor: InterTrust Technologies\nCorporation\nFor: Koninklijke Philips Electronics N.V.\n/s/ Patrick Nguyen\n07/08/02\n/s/ Ivo P.J. Verheijden\n07/08/02\nBy: (Signature)\nDate\nBy (Signature)\nDate\nPatrick Nguyen, Executive Vice\nPresident\nIvo P.J. Verheijden, Associate General Counsel\nPrinted Name and Title\nPrinted Name and Title\n3
+dc0cd1d5b1e42154db08a4f906cb4fe0.pdf	effective_date jurisdiction party term	EX-10.3 4 dex103.htm FORM OF NON-DISCLOSURE AND NON-COMPETITION AGREEMENT FOR\nDIRECTORS AND ABOVE\nExhibit 10.3\nNON-DISCLOSURE AND NON-COMPETITION AGREEMENT\nDirector and Above\nCONVERGYS CORPORATION and its subsidiaries and related entities, including but not limited to Convergys Customer Management\nGroup Inc. and Convergys Information Management Group Inc. and their related entities (collectively, the “Company”), is headquartered in\nCincinnati, Ohio. Employees or promoted employees of the Company are being required to sign these agreements (“Agreement”) as part of the\nCompany’s efforts to protect its property, goodwill, and competitive position. In consideration of employment, promotion, the payment of cash, or\nthe award of equity by the Company, the employee (“Employee”) entering into this Agreement agrees as follows:\n1. The Company is engaged in the information management, customer management, employee care, and collection industries within the United\nStates and worldwide. The Company markets its products and services throughout the United States and worldwide.\n2. The Company currently has three primary business segments: (i) Customer Care, which provides outsourced customer care services, and\nprofessional and consulting services to in-house customer care operations; (ii) Information Management, which provides billing and information\nsolutions; and (iii) Employee Care, which provides human resource business process outsourcing (HR BPO) solutions. The Company develops and\nutilizes technology, models, programs, data, research and development, concepts, goodwill, customer relationships, training, and trade secrets. The\nsuccess of the Company and each of its employees is directly predicated on the protection of its knowledge and information. Employee\nacknowledges that in the course of employment with the Company, Employee will be entrusted with, have access to and obtain intimate, detailed,\nand comprehensive knowledge of confidential and/or proprietary information (“Information”), including information or financial information\nconcerning: (i) the Company’s processes, practices and procedures; (ii) the Company’s customers, suppliers and employees; (iii) the Company’s\nadvertising and marketing plans; (iv) the Company’s strategies, plans, goals, projections, and objectives; (v) the Company’s research and\ndevelopment activities and initiatives; (vi) the strengths and weaknesses of the Company’s products or services; (vii) the costs, profit margins, and\npricing associated with the Company’s products or services; (viii) the Company’s sales strategies, including the manner in which it responds to client\nrequests and requests for information or requests for proposals; (ix) the Company’s business, including budgets and margin information, and\n(10) matters considered confidential by the Company, its customers, or suppliers, including information considered confidential by such customers’\nor suppliers’ customers, vendors, or other third-party providers, and any information of a third party that the Company designates as confidential\n(e.g ., third-party information accessed or used by Employee during his/her employment). Employee agrees that the Information is highly valuable\nand provides a competitive advantage to the Company. Employee further agrees that, given the United States and worldwide markets in which the\nCompany competes, confidentiality of the Information is necessary without regard to any geographic limitation.\n3. Both during and after Employee’s employment with the Company, Employee agrees to retain the Information in absolute confidence and not\nto use or permit access to or disclose the Information to any person or organization, except as required for Employee to perform Employee’s job with\nthe Company. Upon termination of employment with the Company for any reason, Employee agrees to return to the Company, its successors or\nassigns all\nConvergys Corporation - Confidential and Proprietary\nInformation in tangible form, all devices, computer disks or other electronic or magnetic storage media, records, data, proposals, lists, specifications,\ndrawings, sketches, materials, equipment, other documents or property together with all copies (in whatever medium recorded).\n4. Employee recognizes the need of the Company to prevent unfair competition and to protect the Company’s legitimate business interests.\nAccordingly, Employee agrees that, during Employee’s employment and for a period of two years following Employee’s termination or separation\n(for any reason), Employee will not accept employment or engage in any business activity (whether as a principal, partner, joint venturer, agent,\nemployee, salesperson, consultant, independent contractor, director or officer) with a “Competitor” of the Company where such employment would\ninvolve Employee:\n(i) providing, selling or attempting to sell, or assisting in the sale or attempted sale of, any services or products similar to those services\nor products with which Employee had any involvement or Information during Employee’s employment with the Company (including\nany products or services being researched or developed by the Company during Employee’s employment with the Company); or\n(ii) providing or performing services that are similar to any services that Employee provided to or performed for the Company during\nEmployee’s employment with the Company.\nFor purposes of this provision, a “Competitor” is any business or entity that, at any time during the two-year period following Employee’s\ntermination or separation, provides or seeks to provide, any products or services (including those being researched or developed) similar to or related\nto any products sold or any services provided by the Company or with which Employee had any involvement or Information at any time during\nEmployee’s employment with the Company (including those services or products being researched or developed during Employee’s employment\nwith the Company). “Competitor” includes, without limitation, any company or business that:\n(i) provides outsourced billing and information services and/or software to third parties (including but not limited to all segments of the\ncommunications industry, such as wireless, wireline, cable, cable telephony, broadband, direct broadcast satellite and the Internet);\n(ii) provides outsourced customer management and/or customer care services (including but not limited to customer service; offshore\ncapabilities; business process outsourcing; customer retention; direct response; technical support services; B2B sales and marketing\nservices; consumer sales and marketing services; back-office services; and collection services/accounts receivable management);\n(iii) provides outsourced HR business process outsourcing services (including but not limited to (i) recruiting and resourcing,\n(ii) compensation, (iii) human\nConvergys Corporation - Confidential and Proprietary\n2\nresource administration, (iv) payroll administration, (v) benefits administration, (vi) organizational development, (vii) learning, and\n(viii) business intelligence;\n(iv) is identified by the Company as a competitor in any of the Company’s public filings with the Securities and Exchange Commission;\nor\n(v) is a customer .of the Company where Employee’s position with such customer would involve or relate to the services or products that\nthe Company does or did provide to such customer.\nThis restriction will be limited to the geographical area where the Company is doing business and the geographic area where the Company\nmarkets its products and/or services at the time of termination of Employee’s employment.\n5. During Employee’s employment and for a period of two years following Employee’s termination or separation from the Company for any\nreason, Employee will not directly or indirectly, through any person or entity, communicate with (i) any of the Company’s customers from which the\nCompany generated revenue during the two years preceding Employee’s termination or separation; or (ii) any prospective customers known to\nEmployee during the two-year period prior to Employee’s termination or separation, for the purpose or intention of attempting to sell any\nCompetitor’s products or services or attempting to divert business from said customer or prospective customer away from the Company.\n6. In the event Employee is uncertain as to the application of this Agreement to any contemplated employment opportunity or business activity,\nEmployee agrees to inquire in writing of the Company’s General Counsel, specifying the contemplated opportunity or activity. The Company will\nattempt to respond within ten (10) business days following receipt of said writing. In no event will the Company’s failure to respond within ten\nbusiness days constitute a waiver of any of the provisions of this Agreement.\n7. All ideas, inventions, discoveries, concepts, trademarks and other developments or improvements, whether patentable or not, conceived by\nEmployee, alone or with others, at any time during Employee’s employment, whether or not during working hours or on the Company’s premises,\nthat are within the scope of or related to the business operations of the Company (“New Developments”), shall be and remain the exclusive property\nof the Company. Employee shall do all things reasonably necessary to ensure ownership of such New Developments by Company, including the\nexecution of documents assigning and transferring to the Company all of Employee’s rights, title and interest in and to such New Developments, and\nthe execution of all documents required to enable the Company to file and obtain patents, trademarks, and copyrights in the United States and.\nforeign countries on any of such New Developments. Employee agrees to make prompt written disclosure to the Company, to hold in trust for the\nsole right and benefit of the Company, and hereby assigns to the Company all right, title and interest in and to any ideas, inventions, original works\nof authorship (published or not), developments, improvements or trade secrets that Employee may solely or jointly conceive or reduce to practice, or\ncause to be conceived or reduced to practice, during employment with the Company. Employee acknowledges that all original works of authorship\nthat are made by Employee (solely or jointly with others) within the scope of Employee’s employment and that are protectable by\nConvergys Corporation - Confidential and Proprietary\n3\ncopyright are “works made for hire,” as that term is defined in the United States Copyright Act (17 U.S .C., Section 101). Employee agrees to keep\nand maintain adequate records (in the form of notes, sketches, drawings and in any other form that may be required by the Company) of all New\nDevelopments, which records shall be available to and remain the sole property of the Company.\n8. Employee agrees not to disparage or act in any manner that may damage the business of the Company or that would adversely affect the\ngoodwill, reputation, and business relationship of the Company with the public generally, or with any of its customers, suppliers or employees. This\nprovision is not intended to prohibit competition not otherwise restricted by this Agreement.\n9. Employee will not, directly or indirectly, attempt to or actually induce, persuade, or entice any: (i) Company employee, for a period of two\nyears following Employee’s termination or separation (for any reason), to terminate such person’s employment relationship with the Company or\naccept employment with a Competitor; or (ii) current or former Company employee, without limitation, to violate any of such person’s non-compete\nand/or non-solicitation and/or non-disclosure and/or non-disparagement agreements) with the Company.\n10. During Employee’s employment by the Company and for a period of two years following Employee’s termination or separation (for any\nreason), Employee will, before accepting an offer of employment from any person or entity, provide such person or entity a copy of this Agreement.\n11. Employee represents that Employee is not bound by any agreement or other duty to a former employer or any other party that would\nprevent Employee from complying with any obligations hereunder.\n12. Employee further agrees and consents that this Agreement and the rights, duties, and obligations contained in it may be and are fully\ntransferable and/or assignable by the Company, and shall be binding upon and inure to the benefit of the Company’s successors, transferees, or\nassigns.\n13. Employee further agrees that any breach or threatened breach of this Agreement would result in material damage and immediate and\nirreparable harm to the Company. Employee further agrees that any breach of the covenant not to compete described herein would result in the\ninevitable disclosure of Company’s confidential, proprietary and trade secret Information. Employee therefore agrees that the Company, in addition\nto any other rights and remedies available to it, shall be entitled to obtain an immediate injunction, whether temporary, preliminary, or permanent, in\nthe event of any such breach or threatened breach by Employee. Employee acknowledges that the prohibitions and obligations contained in this\nAgreement are reasonable and do not prevent Employee’s ability to use Employee’s general abilities and skills to obtain gainful employment.\nTherefore, Employee agrees that Employee will not sustain monetary damages in the event that Company obtains a temporary, preliminary or\npermanent injunction to enforce this Agreement.\nConvergys Corporation - Confidential and Proprietary\n4\n14. Employee understands and acknowledges that the Company is incorporated, has its headquarters, and conducts substantial business and\noperations in the State of Ohio. Accordingly, Employee agrees that this Agreement shall be governed by the laws of the State of Ohio, without\ngiving effect to any conflict of law provisions. Employee further voluntarily consents and agrees that the state or federal courts located in Hamilton\nCounty, Ohio: (i) must be utilized solely and exclusively to hear any action arising out of or relating to this Agreement; and (ii) are a proper venue\nfor any such action and said courts can appropriately exercise personal jurisdiction over Employee for any such action.\n15. This Agreement supersedes and replaces any prior Non-Disclosure and Non-competition Agreement(s) (or Non-Disclosure Agreement(s)).\nTo the extent that any portion of this Agreement is deemed unenforceable as to the application to specific facts and circumstances, such portion may,\nwithout invalidating the remainder of the Agreement, be modified to the limited extent necessary to cure such unenforceability. Where a curing\nmodification would be ineffective, related portions of Employee’s prior agreement(s) (in order of recency) will be deemed substituted as to the\nspecific facts and circumstances at issue.\n16. This Agreement does not obligate Company to employ Employee for any period of time.\nEMPLOYEE\nDate:\nSignature\nType or Print Name\nConvergys Corporation - Confidential and Proprietary\n5	EX-10.3 4 dex103.htm FORM OF NON-DISCLOSURE AND NON-COMPETITION AGREEMENT FOR\nDIRECTORS AND ABOVE\nExhibit 10.3\nNON-DISCLOSURE AND NON-COMPETITION AGREEMENT\nDirector and Above\nCONVERGYS CORPORATION and its subsidiaries and related entities, including but not limited to Convergys Customer Management\nGroup Inc. and Convergys Information Management Group Inc. and their related entities (collectively, the “Company”), is headquartered in\nCincinnati, Ohio. Employees or promoted employees of the Company are being required to sign these agreements (“Agreement”) as part of the\nCompany’s efforts to protect its property, goodwill, and competitive position. In consideration of employment, promotion, the payment of cash, or\nthe award of equity by the Company, the employee (“Employee™) entering into this Agreement agrees as follows:\n1. The Company is engaged in the information management, customer management, employee care, and collection industries within the United\nStates and worldwide. The Company markets its products and services throughout the United States and worldwide.\n2. The Company currently has three primary business segments: (i) Customer Care, which provides outsourced customer care services, and\nprofessional and consulting services to in-house customer care operations; (ii) Information Management, which provides billing and information\nsolutions; and (iii) Employee Care, which provides human resource business process outsourcing (HR BPO) solutions. The Company develops and\nutilizes technology, models, programs, data, research and development, concepts, goodwill, customer relationships, training, and trade secrets. The\nsuccess of the Company and each of its employees is directly predicated on the protection of its knowledge and information. Employee\nacknowledges that in the course of employment with the Company, Employee will be entrusted with, have access to and obtain intimate, detailed,\nand comprehensive knowledge of confidential and/or proprietary information (“Information”), including information or financial information\nconcerning: (i) the Company’s processes, practices and procedures; (ii) the Company’s customers, suppliers and employees; (iii) the Company’s\nadvertising and marketing plans; (iv) the Company’s strategies, plans, goals, projections, and objectives; (v) the Company’s research and\ndevelopment activities and initiatives; (vi) the strengths and weaknesses of the Company’s products or services; (vii) the costs, profit margins, and\npricing associated with the Company’s products or services; (viii) the Company’s sales strategies, including the manner in which it responds to client\nrequests and requests for information or requests for proposals; (ix) the Company’s business, including budgets and margin information, and\n(10) matters considered confidential by the Company, its customers, or suppliers, including information considered confidential by such customers’\nor suppliers’ customers, vendors, or other third-party providers, and any information of a third party that the Company designates as confidential\n(e.g., third-party information accessed or used by Employee during his/her employment). Employee agrees that the Information is highly valuable\nand provides a competitive advantage to the Company. Employee further agrees that, given the United States and worldwide markets in which the\nCompany competes, confidentiality of the Information is necessary without regard to any geographic limitation.\n3. Both during and after Employee’s employment with the Company, Employee agrees to retain the Information in absolute confidence and not\nto use or permit access to or disclose the Information to any person or organization, except as required for Employee to perform Employee’s job with\nthe Company. Upon termination of employment with the Company for any reason, Employee agrees to return to the Company, its successors or\nassigns all\nConvergys Corporation - Confidential and Proprietary\nInformation in tangible form, all devices, computer disks or other electronic or magnetic storage media, records, data, proposals, lists, specifications,\ndrawings, sketches, materials, equipment, other documents or property together with all copies (in whatever medium recorded).\n4. Employee recognizes the need of the Company to prevent unfair competition and to protect the Company’s legitimate business interests.\nAccordingly, Employee agrees that, during Employee’s employment and for a period of two years following Employee’s termination or separation\n(for any reason), Employee will not accept employment or engage in any business activity (whether as a principal, partner, joint venturer, agent,\nemployee, salesperson, consultant, independent contractor, director or officer) with a “Competitor” of the Company where such employment would\ninvolve Employee:\n(i) providing, selling or attempting to sell, or assisting in the sale or attempted sale of, any services or products similar to those services\nor products with which Employee had any involvement or Information during Employee’s employment with the Company (including\nany products or services being researched or developed by the Company during Employee’s employment with the Company); or\n(ii) providing or performing services that are similar to any services that Employee provided to or performed for the Company during\nEmployee’s employment with the Company.\nFor purposes of this provision, a “Competitor” is any business or entity that, at any time during the two-year period following Employee’s\ntermination or separation, provides or seeks to provide, any products or services (including those being researched or developed) similar to or related\nto any products sold or any services provided by the Company or with which Employee had any involvement or Information at any time during\nEmployee’s employment with the Company (including those services or products being researched or developed during Employee’s employment\nwith the Company). “Competitor” includes, without limitation, any company or business that:\n(i) provides outsourced billing and information services and/or software to third parties (including but not limited to all segments of the\ncommunications industry, such as wireless, wireline, cable, cable telephony, broadband, direct broadcast satellite and the Internet);\n(ii) provides outsourced customer management and/or customer care services (including but not limited to customer service; offshore\ncapabilities; business process outsourcing; customer retention; direct response; technical support services; B2B sales and marketing\nservices; consumer sales and marketing services; back-office services; and collection services/accounts receivable management);\n(iii) provides outsourced HR business process outsourcing services (including but not limited to (i) recruiting and resourcing,\n(ii) compensation, (iii) human\nConvergys Corporation - Confidential and Proprietary\n2\nresource administration, (iv) payroll administration, (v) benefits administration, (vi) organizational development, (vii) learning, and\n(viii) business intelligence;\n(iv) is identified by the Company as a competitor in any of the Company’s public filings with the Securities and Exchange Commission;\nor\n(v) is a customer .of the Company where Employee’s position with such customer would involve or relate to the services or products that\nthe Company does or did provide to such customer.\nThis restriction will be limited to the geographical area where the Company is doing business and the geographic area where the Company\nmarkets its products and/or services at the time of termination of Employee’s employment.\n5. During Employee’s employment and for a period of two years following Employee’s termination or separation from the Company for any\nreason, Employee will not directly or indirectly, through any person or entity, communicate with (i) any of the Company’s customers from which the\nCompany generated revenue during the two years preceding Employee’s termination or separation; or (ii) any prospective customers known to\nEmployee during the two-year period prior to Employee’s termination or separation, for the purpose or intention of attempting to sell any\nCompetitor’s products or services or attempting to divert business from said customer or prospective customer away from the Company.\n6. In the event Employee is uncertain as to the application of this Agreement to any contemplated employment opportunity or business activity,\nEmployee agrees to inquire in writing of the Company’s General Counsel, specifying the contemplated opportunity or activity. The Company will\nattempt to respond within ten (10) business days following receipt of said writing. In no event will the Company’s failure to respond within ten\nbusiness days constitute a waiver of any of the provisions of this Agreement.\n7. All ideas, inventions, discoveries, concepts, trademarks and other developments or improvements, whether patentable or not, conceived by\nEmployee, alone or with others, at any time during Employee’s employment, whether or not during working hours or on the Company’s premises,\nthat are within the scope of or related to the business operations of the Company (“New Developments”), shall be and remain the exclusive property\nof the Company. Employee shall do all things reasonably necessary to ensure ownership of such New Developments by Company, including the\nexecution of documents assigning and transferring to the Company all of Employee’s rights, title and interest in and to such New Developments, and\nthe execution of all documents required to enable the Company to file and obtain patents, trademarks, and copyrights in the United States and.\nforeign countries on any of such New Developments. Employee agrees to make prompt written disclosure to the Company, to hold in trust for the\nsole right and benefit of the Company, and hereby assigns to the Company all right, title and interest in and to any ideas, inventions, original works\nof authorship (published or not), developments, improvements or trade secrets that Employee may solely or jointly conceive or reduce to practice, or\ncause to be conceived or reduced to practice, during employment with the Company. Employee acknowledges that all original works of authorship\nthat are made by Employee (solely or jointly with others) within the scope of Employee’s employment and that are protectable by\nConvergys Corporation - Confidential and Proprietary\n3\ncopyright are “works made for hire,” as that term is defined in the United States Copyright Act (17 U.S.C., Section 101). Employee agrees to keep\nand maintain adequate records (in the form of notes, sketches, drawings and in any other form that may be required by the Company) of all New\nDevelopments, which records shall be available to and remain the sole property of the Company.\n8. Employee agrees not to disparage or act in any manner that may damage the business of the Company or that would adversely affect the\ngoodwill, reputation, and business relationship of the Company with the public generally, or with any of its customers, suppliers or employees. This\nprovision is not intended to prohibit competition not otherwise restricted by this Agreement.\n9. Employee will not, directly or indirectly, attempt to or actually induce, persuade, or entice any: (i) Company employee, for a period of two\nyears following Employee’s termination or separation (for any reason), to terminate such person’s employment relationship with the Company or\naccept employment with a Competitor; or (ii) current or former Company employee, without limitation, to violate any of such person’s non-compete\nand/or non-solicitation and/or non-disclosure and/or non-disparagement agreements) with the Company.\n10. During Employee’s employment by the Company and for a period of two years following Employee’s termination or separation (for any\nreason), Employee will, before accepting an offer of employment from any person or entity, provide such person or entity a copy of this Agreement.\n11. Employee represents that Employee is not bound by any agreement or other duty to a former employer or any other party that would\nprevent Employee from complying with any obligations hereunder.\n12. Employee further agrees and consents that this Agreement and the rights, duties, and obligations contained in it may be and are fully\ntransferable and/or assignable by the Company, and shall be binding upon and inure to the benefit of the Company’s successors, transferees, or\nassigns.\n13. Employee further agrees that any breach or threatened breach of this Agreement would result in material damage and immediate and\nirreparable harm to the Company. Employee further agrees that any breach of the covenant not to compete described herein would result in the\ninevitable disclosure of Company’s confidential, proprietary and trade secret Information. Employee therefore agrees that the Company, in addition\nto any other rights and remedies available to it, shall be entitled to obtain an immediate injunction, whether temporary, preliminary, or permanent, in\nthe event of any such breach or threatened breach by Employee. Employee acknowledges that the prohibitions and obligations contained in this\nAgreement are reasonable and do not prevent Employee’s ability to use Employee’s general abilities and skills to obtain gainful employment.\nTherefore, Employee agrees that Employee will not sustain monetary damages in the event that Company obtains a temporary, preliminary or\npermanent injunction to enforce this Agreement.\nConvergys Corporation - Confidential and Proprietary\n4\n14. Employee understands and acknowledges that the Company is incorporated, has its headquarters, and conducts substantial business and\noperations in the State of Ohio. Accordingly, Employee agrees that this Agreement shall be governed by the laws of the State of Ohio, without\ngiving effect to any conflict of law provisions. Employee further voluntarily consents and agrees that the state or federal courts located in Hamilton\nCounty, Ohio: (i) must be utilized solely and exclusively to hear any action arising out of or relating to this Agreement; and (ii) are a proper venue\nfor any such action and said courts can appropriately exercise personal jurisdiction over Employee for any such action.\n15. This Agreement supersedes and replaces any prior Non-Disclosure and Non-competition Agreement(s) (or Non-Disclosure Agreement(s)).\nTo the extent that any portion of this Agreement is deemed unenforceable as to the application to specific facts and circumstances, such portion may,\nwithout invalidating the remainder of the Agreement, be modified to the limited extent necessary to cure such unenforceability. Where a curing\nmodification would be ineffective, related portions of Employee’s prior agreement(s) (in order of recency) will be deemed substituted as to the\nspecific facts and circumstances at issue.\n16. This Agreement does not obligate Company to employ Employee for any period of time.\nEMPLOYEE\nDate: Signature\nType or Print Name\nConvergys Corporation - Confidential and Proprietary\n5	EX-10.3 4 dex103.htm FORM OF NON-DISCLOSURE AND NON-COMPETITION AGREEMENT FOR\nDIRECTORS AND ABOVE\nExhibit 10.3\nNON-DISCLOSURE AND NON-COMPETITION AGREEMENT\nDirector and Above\nCONVERGYS CORPORATION and its subsidiaries and related entities, including but not limited to Convergys Customer Management\nGroup Inc. and Convergys Information Management Group Inc. and their related entities (collectively, the "Company"), is headquartered in\nCincinnati, Ohio. Employees or promoted employees of the Company are being required to sign these agreements ("Agreement") as part of the\nCompany's efforts to protect its property, goodwill, and competitive position. In consideration of employment, promotion, the payment of cash, or\nthe award of equity by the Company, the employee ("Employee") entering into this Agreement agrees as follows:\n1.\nThe Company is engaged in the information management, customer management, employee care, and collection industries within the United\nStates and worldwide. The Company markets its products and services throughout the United States and worldwide.\n2. The Company currently has three primary business segments: (i) Customer Care, which provides outsourced customer care services, and\nprofessional and consulting services to in-house customer care operations; (ii) Information Management, which provides billing and information\nsolutions; and (iii) Employee Care, which provides human resource business process outsourcing (HR BPO) solutions. The Company develops\nand\nutilizes technology, models, programs, data, research and development, concepts, goodwill, customer relationships, training, and trade secrets. The\nsuccess of the Company and each of its employees is directly predicated on the protection of its knowledge and information. Employee\nacknowledges that in the course of employment with the Company, Employee will be entrusted with, have access to and obtain intimate, detailed,\nand comprehensive knowledge of confidential and/or proprietary information ("Information"), including information or financial information\nconcerning: (i) the Company's processes, practices and procedures; (ii) the Company's customers, suppliers and employees; (iii) the Company's\nadvertising and marketing plans; (iv) the Company's strategies, plans, goals, projections, and objectives; (v) the Company's research and\ndevelopment activities and initiatives; (vi) the strengths and weaknesses of the Company's products or services; (vii) the costs, profit margins,\nand\npricing associated with the Company's products or services; (viii) the Company's sales strategies, including the manner in which it responds\nto\nclient\nrequests and requests for information or requests for proposals; (ix) the Company's business, including budgets and margin information, and\n(10) matters considered confidential by the Company, its customers, or suppliers, including information considered confidential by such customers'\nor suppliers' customers, vendors, or other third-party providers, and any information of a third party that the Company designates as confidential\n(e.g., third-party information accessed or used by Employee during his/her employment). Employee agrees that the Information is highly valuable\nand provides a competitive advantage to the Company. Employee further agrees that, given the United States and worldwide markets in which\nthe\nCompany competes, confidentiality of the Information is necessary without regard to any geographic limitation.\n3. Both during and after Employee's employment with the Company, Employee agrees to retain the Information in absolute confidence and not\nto\nuse\nor\npermit access to or disclose the Information to any person or organization, except as required for Employee to perform Employee's job\nwith\nthe Company. Upon termination of employment with the Company for any reason, Employee agrees to return to the Company, its successors or\nassigns all\nConvergys Corporation Confidential and Proprietary\nInformation in tangible form, all devices, computer disks or other electronic or magnetic storage media, records, data, proposals, lists, specifications,\ndrawings, sketches, materials, equipment, other documents or property together with all copies (in whatever medium recorded).\n4. Employee recognizes the need of the Company to prevent unfair competition and to protect the Company's legitimate business interests.\nAccordingly, Employee agrees that, during Employee's employment and for a period of two years following Employee's termination or separation\n(for any reason), Employee will not accept employment or engage in any business activity (whether as a principal, partner, joint venturer, agent,\nemployee, salesperson, consultant, independent contractor, director or officer) with a "Competitor" of the Company where such employment would\ninvolve Employee:\n(i) providing, selling or attempting to sell, or assisting in the sale or attempted sale of, any services or products similar to those services\nor products with which Employee had any involvement or Information during Employee's employment with the Company (including\nany products or services being researched or developed by the Company during Employee's employment with the Company);\nor\n(ii) providing or performing services that are similar to any services that Employee provided to or performed for the Company during\nEmployee's employment with the Company.\nFor purposes of this provision, a "Competitor" is any business or entity that, at any time during the two-year period following Employee's\ntermination or separation, provides or seeks to provide, any products or services (including those being researched or developed) similar to or related\nto\nany products sold or any services provided by the Company or with which Employee had any involvement or Information at any time during\nEmployee's employment with the Company (including those services or products being researched or developed during Employee's employment\nwith the Company). "Competitor" includes, without limitation, any company or business that:\n(i)\nprovides outsourced billing and information services and/or software to third parties (including but not limited to all segments of the\ncommunications industry, such as wireless, wireline, cable, cable telephony, broadband, direct broadcast satellite and the Internet);\n(ii) provides outsourced customer management and/or customer care services (including but not limited to customer service; offshore\ncapabilities; business process outsourcing; customer retention; direct response; technical support services; B2B sales and marketing\nservices; consumer sales and marketing services; back-office services; and collection services/accounts receivable management);\n(iii) provides outsourced HR business process outsourcing services (including but not limited to (i) recruiting and resourcing,\n(ii) compensation, (iii) human\nConvergys Corporation - Confidentia and Proprietary\n2\nresource administration, (iv) payroll administration, (v) benefits administration, (vi) organizational development, (vii) learning,\nand\n(viii) business intelligence;\n(iv) is identified by the Company as a competitor in any of the Company's public filings with the Securities and Exchange Commission;\nor\n(v) is a customer .of the Company where Employee's position with such customer would involve or relate to the services or products that\nthe Company does or did provide to such customer.\nThis restriction will be limited to the geographical area where the Company is doing business and the geographic area where the Company\nmarkets its products and/or services at the time of termination of Employee's employment.\n5.\nDuring Employee's employment and for a period of two years following Employee's termination or separation from the Company for any\nreason, Employee will not directly or indirectly, through any person or entity, communicate with (i) any of the Company's customers from which the\nCompany generated revenue during the two years preceding Employee's termination or separation; or (ii) any prospective customers known to\nEmployee during the two-year period prior to Employee's termination or separation, for the purpose or intention of attempting to sell any\nCompetitor's products or services or attempting to divert business from said customer or prospective customer away from the Company.\n6. In the event Employee is uncertain as to the application of this Agreement to any contemplated employment opportunity or business activity,\nEmployee agrees to inquire in writing of the Company's General Counsel, specifying the contemplated opportunity or activity. The Company will\nattempt to respond within ten (10) business days following receipt of said writing. In no event will the Company's failure to respond within ten\nbusiness days constitute a waiver of any of the provisions of this Agreement.\n7.\nAll ideas, inventions, discoveries, concepts, trademarks and other developments or improvements, whether patentable or not, conceived by\nEmployee,\nalone or with others, at any time during Employee's employment, whether or not during working hours or on the Company's premises,\nthat are within the scope of or related to the business operations of the Company ("New Developments"), shall be and remain the exclusive property\nof the Company. Employee shall do all things reasonably necessary to ensure ownership of such New Developments by Company, including the\nexecution of documents assigning and transferring to the Company all of Employee's rights, title and interest in and to such New Developments, and\nthe execution of all documents required to enable the Company to file and obtain patents, trademarks, and copyrights in the United States and.\nforeign countries on any of such New Developments. Employee agrees to make prompt written disclosure to the Company, to hold in trust for the\nsole right and benefit of the Company, and hereby assigns to the Company all right, title and interest in and to any ideas, inventions, original works\nof authorship (published or not), developments, improvements or trade secrets that Employee may solely or jointly conceive or reduce to practice, or\ncause to be conceived or reduced to practice, during employment with the Company. Employee acknowledges that all original works of authorship\nthat are made by Employee (solely or jointly with others) within the scope of Employee's employment and that are protectable by\nConvergys Corporation - Confidential and Proprietary\n3\ncopyright are "works made for hire," as that term is defined in the United States Copyright Act (17 U.S.C., Section 101). Employee agrees to keep\nand maintain adequate records (in the form of notes, sketches, drawings and in any other form that may be required by the Company) of all New\nDevelopments, which records shall be available to and remain the sole property of the Company.\n8.\nEmployee agrees not to disparage or act in any manner that may damage the business of the Company or that would adversely affect the\ngoodwill, reputation, and business relationship of the Company with the public generally, or with any of its customers, suppliers or employees. This\nprovision is not intended to prohibit competition not otherwise restricted by this Agreement.\n9. Employee will not, directly or indirectly, attempt to or actually induce, persuade, or entice any: (i) Company employee, for a period of two\nyears following Employee's termination or separation (for any reason), to terminate such person's employment relationship with the Company or\naccept employment with a Competitor; or (ii) current or former Company employee, without limitation, to violate any of such person's non-compete\nand/or non-solicitation and/or non-disclosure and/or non-disparagement agreements) with the Company.\n10. During Employee's employment by the Company and for a period of two years following Employee's termination or separation (for any\nreason), Employee will, before accepting an offer of employment from any person or entity, provide such person or entity a copy of this Agreement.\n11. Employee represents that Employee is not bound by any agreement or other duty to a former employer or any other party that would\nprevent Employee from complying with any obligations hereunder.\n12. Employee further agrees and consents that this Agreement and the rights, duties, and obligations contained in it may be and are fully\ntransferable and/or assignable by the Company, and shall be binding upon and inure to the benefit of the Company's successors, transferees, or\nassigns.\n13. Employee further agrees that any breach or threatened breach of this Agreement would result in material damage and immediate and\nirreparable harm to the Company. Employee further agrees that any breach of the covenant not to compete described herein would result in the\ninevitable disclosure of Company's confidential, proprietary and trade secret Information. Employee therefore agrees that the Company, in addition\nto any other rights and remedies available to it, shall be entitled to obtain an immediate injunction, whether temporary, preliminary, or permanent, in\nthe event of any such breach or threatened breach by Employee. Employee acknowledges that the prohibitions and obligations contained in this\nAgreement are reasonable and do not prevent Employee's ability to use Employee's general abilities and skills to obtain gainful employment.\nTherefore, Employee agrees that Employee will not sustain monetary damages in the event that Company obtains a temporary, preliminary\nor\npermanent injunction to enforce this Agreement.\nConvergys Corporation Confidential and Proprietary\n4\n14. Employee understands and acknowledges that the Company is incorporated, has its headquarters, and conducts substantial business and\noperations in the State of Ohio. Accordingly, Employee agrees that this Agreement shall be governed by the laws of the State of Ohio, without\ngiving effect to any conflict of law provisions. Employee further voluntarily consents and agrees that the state or federal courts located in Hamilton\nCounty, Ohio: (i) must be utilized solely and exclusively to hear any action arising out of or relating to this Agreement; and (ii) are a proper venue\nfor any such action and said courts can appropriately exercise personal jurisdiction over Employee for any such action.\n15. This Agreement supersedes and replaces any prior Non-Disclosure and Non-competition Agreement(s) (or Non-Disclosure Agreement(s)).\nTo the extent that any portion of this Agreement is deemed unenforceable as to the application to specific facts and circumstances, such portion may,\nwithout invalidating the remainder of the Agreement, be modified to the limited extent necessary to cure such unenforceability. Where a curing\nmodification would be ineffective, related portions of Employee's prior agreement(s) (in order of recency) will be deemed substituted as to the\nspecific facts and circumstances at issue.\n16. This Agreement does not obligate Company to employ Employee for any period of time.\nEMPLOYEE\nDate:\nSignature\nType or Print Name\nConvergys Corporation - Confidential and Proprietary\n5	EX-10.3 4 dex103.htm FORM OF NON-DISCLOSURE AND NON-COMPETITION AGREEMENT FOR\nDIRECTORS AND ABOVE\nExhibit 10.3\nNON-DISCLOSURE AND NON-COMPETITION AGREEMENT\nDirector and Above\nCONVERGYS CORPORATION and its subsidiaries and related entities, including but not limited to Convergys Customer Management\nGroup Inc. and Convergys Information Management Group Inc. and their related entities (collectively, the “Company”), is headquartered in\nCincinnati, Ohio. Employees or promoted employees of the Company are being required to sign these agreements (“Agreement”) as part of the\nCompany’s efforts to protect its property, goodwill, and competitive position. In consideration of employment, promotion, the payment of cash, or\nthe award of equity by the Company, the employee (“Employee”) entering into this Agreement agrees as follows:\n1. The Company is engaged in the information management, customer management, employee care, and collection industries within the United\nStates and worldwide. The Company markets its products and services throughout the United States and worldwide.\n2. The Company currently has three primary business segments: (i) Customer Care, which provides outsourced customer care services, and\nprofessional and consulting services to in-house customer care operations; (ii) Information Management, which provides billing and information\nsolutions; and (iii) Employee Care, which provides human resource business process outsourcing (HR BPO) solutions. The Company develops and\nutilizes technology, models, programs, data, research and development, concepts, goodwill, customer relationships, training, and trade secrets. The\nsuccess of the Company and each of its employees is directly predicated on the protection of its knowledge and information. Employee\nacknowledges that in the course of employment with the Company, Employee will be entrusted with, have access to and obtain intimate, detailed,\nand comprehensive knowledge of confidential and/or proprietary information (“Information”), including information or financial information\nconcerning: (i) the Company’s processes, practices and procedures; (ii) the Company’s customers, suppliers and employees; (iii) the Company’s\nadvertising and marketing plans; (iv) the Company’s strategies, plans, goals, projections, and objectives; (v) the Company’s research and\ndevelopment activities and initiatives; (vi) the strengths and weaknesses of the Company’s products or services; (vii) the costs, profit margins, and\npricing associated with the Company’s products or services; (viii) the Company’s sales strategies, including the manner in which it responds to client\nrequests and requests for information or requests for proposals; (ix) the Company’s business, including budgets and margin information, and\n(10) matters considered confidential by the Company, its customers, or suppliers, including information considered confidential by such customers’\nor suppliers’ customers, vendors, or other third-party providers, and any information of a third party that the Company designates as confidential\n(e.g ., third-party information accessed or used by Employee during his/her employment). Employee agrees that the Information is highly valuable\nand provides a competitive advantage to the Company. Employee further agrees that, given the United States and worldwide markets in which the\nCompany competes, confidentiality of the Information is necessary without regard to any geographic limitation.\n3. Both during and after Employee’s employment with the Company, Employee agrees to retain the Information in absolute confidence and not\nto use or permit access to or disclose the Information to any person or organization, except as required for Employee to perform Employee’s job with\nthe Company. Upon termination of employment with the Company for any reason, Employee agrees to return to the Company, its successors or\nassigns all\nConvergys Corporation - Confidential and Proprietary\nInformation in tangible form, all devices, computer disks or other electronic or magnetic storage media, records, data, proposals, lists, specifications,\ndrawings, sketches, materials, equipment, other documents or property together with all copies (in whatever medium recorded).\n4. Employee recognizes the need of the Company to prevent unfair competition and to protect the Company’s legitimate business interests.\nAccordingly, Employee agrees that, during Employee’s employment and for a period of two years following Employee’s termination or separation\n(for any reason), Employee will not accept employment or engage in any business activity (whether as a principal, partner, joint venturer, agent,\nemployee, salesperson, consultant, independent contractor, director or officer) with a “Competitor” of the Company where such employment would\ninvolve Employee:\n(i) providing, selling or attempting to sell, or assisting in the sale or attempted sale of, any services or products similar to those services\nor products with which Employee had any involvement or Information during Employee’s employment with the Company (including\nany products or services being researched or developed by the Company during Employee’s employment with the Company); or\n(ii) providing or performing services that are similar to any services that Employee provided to or performed for the Company during\nEmployee’s employment with the Company.\nFor purposes of this provision, a “Competitor” is any business or entity that, at any time during the two-year period following Employee’s\ntermination or separation, provides or seeks to provide, any products or services (including those being researched or developed) similar to or related\nto any products sold or any services provided by the Company or with which Employee had any involvement or Information at any time during\nEmployee’s employment with the Company (including those services or products being researched or developed during Employee’s employment\nwith the Company). “Competitor” includes, without limitation, any company or business that:\n(i) provides outsourced billing and information services and/or software to third parties (including but not limited to all segments of the\ncommunications industry, such as wireless, wireline, cable, cable telephony, broadband, direct broadcast satellite and the Internet);\n(ii) provides outsourced customer management and/or customer care services (including but not limited to customer service; offshore\ncapabilities; business process outsourcing; customer retention; direct response; technical support services; B2B sales and marketing\nservices; consumer sales and marketing services; back-office services; and collection services/accounts receivable management);\n(iii) provides outsourced HR business process outsourcing services (including but not limited to (i) recruiting and resourcing,\n(ii) compensation, (iii) human\nConvergys Corporation - Confidential and Proprietary\n2\nresource administration, (iv) payroll administration, (v) benefits administration, (vi) organizational development, (vii) learning, and\n(viii) business intelligence;\n(iv) is identified by the Company as a competitor in any of the Company’s public filings with the Securities and Exchange Commission;\nor\n(v) is a customer .of the Company where Employee’s position with such customer would involve or relate to the services or products that\nthe Company does or did provide to such customer.\nThis restriction will be limited to the geographical area where the Company is doing business and the geographic area where the Company\nmarkets its products and/or services at the time of termination of Employee’s employment.\n5. During Employee’s employment and for a period of two years following Employee’s termination or separation from the Company for any\nreason, Employee will not directly or indirectly, through any person or entity, communicate with (i) any of the Company’s customers from which the\nCompany generated revenue during the two years preceding Employee’s termination or separation; or (ii) any prospective customers known to\nEmployee during the two-year period prior to Employee’s termination or separation, for the purpose or intention of attempting to sell any\nCompetitor’s products or services or attempting to divert business from said customer or prospective customer away from the Company.\n6. In the event Employee is uncertain as to the application of this Agreement to any contemplated employment opportunity or business activity,\nEmployee agrees to inquire in writing of the Company’s General Counsel, specifying the contemplated opportunity or activity. The Company will\nattempt to respond within ten (10) business days following receipt of said writing. In no event will the Company’s failure to respond within ten\nbusiness days constitute a waiver of any of the provisions of this Agreement.\n7. All ideas, inventions, discoveries, concepts, trademarks and other developments or improvements, whether patentable or not, conceived by\nEmployee, alone or with others, at any time during Employee’s employment, whether or not during working hours or on the Company’s premises,\nthat are within the scope of or related to the business operations of the Company (“New Developments”), shall be and remain the exclusive property\nof the Company. Employee shall do all things reasonably necessary to ensure ownership of such New Developments by Company, including the\nexecution of documents assigning and transferring to the Company all of Employee’s rights, title and interest in and to such New Developments, and\nthe execution of all documents required to enable the Company to file and obtain patents, trademarks, and copyrights in the United States and.\nforeign countries on any of such New Developments. Employee agrees to make prompt written disclosure to the Company, to hold in trust for the\nsole right and benefit of the Company, and hereby assigns to the Company all right, title and interest in and to any ideas, inventions, original works\nof authorship (published or not), developments, improvements or trade secrets that Employee may solely or jointly conceive or reduce to practice, or\ncause to be conceived or reduced to practice, during employment with the Company. Employee acknowledges that all original works of authorship\nthat are made by Employee (solely or jointly with others) within the scope of Employee’s employment and that are protectable by\nConvergys Corporation - Confidential and Proprietary\n3\ncopyright are “works made for hire,” as that term is defined in the United States Copyright Act (17 U.S .C., Section 101). Employee agrees to keep\nand maintain adequate records (in the form of notes, sketches, drawings and in any other form that may be required by the Company) of all New\nDevelopments, which records shall be available to and remain the sole property of the Company.\n8. Employee agrees not to disparage or act in any manner that may damage the business of the Company or that would adversely affect the\ngoodwill, reputation, and business relationship of the Company with the public generally, or with any of its customers, suppliers or employees. This\nprovision is not intended to prohibit competition not otherwise restricted by this Agreement.\n9. Employee will not, directly or indirectly, attempt to or actually induce, persuade, or entice any: (i) Company employee, for a period of two\nyears following Employee’s termination or separation (for any reason), to terminate such person’s employment relationship with the Company or\naccept employment with a Competitor; or (ii) current or former Company employee, without limitation, to violate any of such person’s non-compete\nand/or non-solicitation and/or non-disclosure and/or non-disparagement agreements) with the Company.\n10. During Employee’s employment by the Company and for a period of two years following Employee’s termination or separation (for any\nreason), Employee will, before accepting an offer of employment from any person or entity, provide such person or entity a copy of this Agreement.\n11. Employee represents that Employee is not bound by any agreement or other duty to a former employer or any other party that would\nprevent Employee from complying with any obligations hereunder.\n12. Employee further agrees and consents that this Agreement and the rights, duties, and obligations contained in it may be and are fully\ntransferable and/or assignable by the Company, and shall be binding upon and inure to the benefit of the Company’s successors, transferees, or\nassigns.\n13. Employee further agrees that any breach or threatened breach of this Agreement would result in material damage and immediate and\nirreparable harm to the Company. Employee further agrees that any breach of the covenant not to compete described herein would result in the\ninevitable disclosure of Company’s confidential, proprietary and trade secret Information. Employee therefore agrees that the Company, in addition\nto any other rights and remedies available to it, shall be entitled to obtain an immediate injunction, whether temporary, preliminary, or permanent, in\nthe event of any such breach or threatened breach by Employee. Employee acknowledges that the prohibitions and obligations contained in this\nAgreement are reasonable and do not prevent Employee’s ability to use Employee’s general abilities and skills to obtain gainful employment.\nTherefore, Employee agrees that Employee will not sustain monetary damages in the event that Company obtains a temporary, preliminary or\npermanent injunction to enforce this Agreement.\nConvergys Corporation - Confidential and Proprietary\n4\n14. Employee understands and acknowledges that the Company is incorporated, has its headquarters, and conducts substantial business and\noperations in the State of Ohio. Accordingly, Employee agrees that this Agreement shall be governed by the laws of the State of Ohio, without\ngiving effect to any conflict of law provisions. Employee further voluntarily consents and agrees that the state or federal courts located in Hamilton\nCounty, Ohio: (i) must be utilized solely and exclusively to hear any action arising out of or relating to this Agreement; and (ii) are a proper venue\nfor any such action and said courts can appropriately exercise personal jurisdiction over Employee for any such action.\n15. This Agreement supersedes and replaces any prior Non-Disclosure and Non-competition Agreement(s) (or Non-Disclosure Agreement(s)).\nTo the extent that any portion of this Agreement is deemed unenforceable as to the application to specific facts and circumstances, such portion may,\nwithout invalidating the remainder of the Agreement, be modified to the limited extent necessary to cure such unenforceability. Where a curing\nmodification would be ineffective, related portions of Employee’s prior agreement(s) (in order of recency) will be deemed substituted as to the\nspecific facts and circumstances at issue.\n16. This Agreement does not obligate Company to employ Employee for any period of time.\nEMPLOYEE\nDate:\nSignature\nType or Print Name\nConvergys Corporation - Confidential and Proprietary\n5
+dcce148b95df368224ab072b40cce989.pdf	effective_date jurisdiction party term	EX-99.(E)(10) 3 dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(10)\nCONFIDENTIAL\nFebruary 4, 2008\nKinetic Concepts, Inc.\n8023 Vantage Drive\nSan Antonio, TX 78230\nRE: Confidentiality Agreement\nLadies and Gentlemen:\nKinetic Concepts, Inc. (“Buyer”) has expressed an interest in exploring a transaction (a “Transaction”) involving the possible acquisition (by\nmerger, consolidation or otherwise) of all of the outstanding shares of capital stock of LifeCell Corporation, a Delaware corporation (together with\nits subsidiaries and affiliates, the “Company”), and has requested certain information relating to the Company. As a condition to any information\nbeing furnished to Buyer and its Representatives (as defined below), Buyer and the Company agree to be bound by the terms and conditions set forth\nin this letter agreement (“this Agreement”). Buyer further agrees to inform each of its Representatives to whom any information subject to this\nAgreement is disclosed of the terms and conditions of this Agreement, and to cause each such Representative to fully observe and be bound by this\nAgreement (other than Section 11 hereof, except as provided therein) to the same extent as if such Representative were Buyer. This Agreement shall\nsupersede the Mutual Non-Disclosure Agreement entered into between Buyer and Company dated May 9, 2007.\n1. Proprietary Information. As used in this Agreement, the term “Proprietary Information” means all information relating to the Company\n(including, without limitation, all such information concerning or relating to the Company’s assets, liabilities, businesses, customers or suppliers)\nfurnished by or on behalf of the Company or its Representatives, or learned or obtained in any fashion by Buyer or any of its Representatives in\nconnection with visits to the Company’s facilities (which information learned or obtained in connection with such visits shall be deemed disclosed\nby the Company), whether furnished, learned or obtained before, on or after the date hereof, and whether oral, written or electronic. “Proprietary\nInformation” shall include all information of the types described above, regardless of the manner or form in which it is furnished, learned or\nobtained, and includes, without limitation, all data, reports, interpretations, forecasts and records containing or otherwise reflecting any of such\ninformation, whether prepared by the Company or others, and any summaries, analyses or other documents created by Buyer, the Company or others\nwhich refer to, relate to, discuss, constitute or embody all or any portion of any of such information. The term “Proprietary Information” shall not\ninclude, however, information that: (a) is or becomes generally available to the public other than as a result (directly or indirectly) of a disclosure or\nother action by Buyer or its Representatives; (b) was (as demonstrable by written records of Buyer) in Buyer’s possession and obtained on a non-\nconfidential basis prior to the disclosure thereof by the Company or its Representatives; or (c) becomes available to Buyer on a non-confidential\nbasis from a person other than the Company or its Representatives who is not to Buyer’s knowledge after reasonable inquiry otherwise bound by any\nobligation of confidentiality with respect thereto.\n2. Representatives. As used in this Agreement, the term “Representatives” means, as to any person, such person’s affiliates and its and their\ndirectors, officers, employees, agents and advisors (including, without limitation, financial advisors, counsel and accountants). As used in this\nAgreement,\nthe term “person” shall be broadly interpreted to include, without limitation, an individual, the media, and any corporation, company, partnership,\nlimited liability company, or other entity, organization, or association. For the avoidance of doubt, potential purchasers, potential equity investors and\ndebt financing sources shall not constitute Representatives and nothing in this Agreement shall permit Buyer to share Confidential Information with\nany other potential purchaser, potential equity investor or debt financing source, or to enter into or engage in any discussions, negotiations,\nagreements or understandings with (or submit any joint proposal with) any such person regarding a Transaction, the Proprietary Information or the\nCompany without the prior written consent of the Company, which consent may be withheld for any or no reason, and may be conditioned upon\nexecution of a confidentiality agreement in such form as the Company may request in its sole discretion.\n3. Restrictions on Use and Disclosure. Subject to Section 4 below, unless otherwise agreed to in writing by an officer of the Company, Buyer\nagrees, for a period of three (3) years from the date of this Agreement: (a) to keep all Proprietary Information confidential and not to disclose or\nreveal any Proprietary Information to any person other than Representatives of Buyer who are actively and directly participating in the evaluation of\na Transaction on behalf of Buyer; and (b) not to use Proprietary Information for any purpose other than its evaluation of a Transaction. Buyer agrees\nto take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of any Proprietary Information and,\nregardless of compliance by Buyer with the foregoing, shall be responsible and liable to the Company for any breach of the terms of this Agreement\nby Buyer or any of its Representatives. Neither party shall, without the other party’s prior written consent, disclose to any person (other than those of\nits Representatives who are actively and directly participating in the evaluation of a Transaction) any information relating to a Transaction, any\nproposed terms or conditions of a Transaction, or any other information or matters relating thereto, including, without limitation, the fact that\ndiscussions are taking place with respect thereto, the status thereof or the fact that Proprietary Information has been made available to Buyer or its\nRepresentatives. Each party agrees to take all reasonable measures to restrain its respective Representatives from prohibited or unauthorized\ndisclosure any information relating to a Transaction and, regardless of compliance by such party with the foregoing, shall be responsible and liable to\nthe other party for any breach of the terms of this Agreement by any of its Representatives.\n4. Compelled Disclosure. In the event that Buyer or any of its Representatives is legally compelled, pursuant to a subpoena, civil investigative\ndemand, regulatory demand or similar process, or pursuant to applicable law, rule, regulation, stock exchange rule or disclosure requirement of the\nSecurities and Exchange Commission (collectively, “Law”), to disclose any Proprietary Information or either party is legally compelled to disclose\nany other information concerning a Transaction, the compelled party shall seek a written opinion from reputable and experienced outside counsel\nthat a specific disclosure is necessary in order for the compelled party not to be in violation of, or default under, an applicable Law or order. Each\nparty agrees that it shall provide the non-compelled party with prompt notice of such request or requirement as well as a copy of such opinion\ntogether with the text of the proposed disclosure as far in advance of its disclosure as is reasonably practicable, and will in good faith consult with\nand consider the suggestions of the non-compelled party concerning the nature and scope of the information the compelled party proposes to\ndisclose. Each party agrees to cooperate fully with and not to oppose any action by the non-compelled party to obtain a protective order or other\nappropriate remedy in order to limit such disclosure. In the event that no such protective order or other remedy is obtained, or in the event that the\nnon-compelled party waives compliance with the terms of this Agreement, the compelled party may disclose only that part of the Proprietary\nInformation or other information concerning a Transaction as it is advised by counsel in writing is legally required to be disclosed, and shall use its\nbest efforts to ensure that all Proprietary Information and other information concerning a Transaction that is so disclosed will be accorded\nconfidential treatment.\n2\n5. Ownership. Buyer acknowledges that the Proprietary Information is and shall remain the sole and exclusive property of the Company, and\nthat the Company has the exclusive right, title and interest to such Proprietary Information. No right or license, by implication or otherwise, is\ngranted by the Company as a result of this Agreement or as a result of any disclosure of Proprietary Information.\n6. Return or Destruction. At any time the Company so requests in writing for any or no reason, Buyer shall, and shall cause its Representatives\nto: (a) promptly return to the Company all Proprietary Information furnished directly or indirectly by or on behalf of the Company or any of its\nRepresentatives; (b) promptly destroy all copies, summaries, extracts, memoranda, notes and other writings of, containing or based upon any\nProprietary Information, regardless of who prepared such writings; and (c) promptly expunge all Proprietary Information from all computers and\nother electronic or other storage devices. Neither Buyer nor any of its Representatives shall retain any copies or other reproductions in whole or in\npart of any such material. Within fifteen (15) days following the Company’s request to Buyer to take the actions set forth in Sections 6(a), (b) and\n(c) of this Agreement, an officer of Buyer shall certify to the Company, in writing, that Buyer and its Representatives have complied with this\nSection 6. Compliance with this Section 6 shall not terminate or relieve Buyer or its Representatives from their obligations under this Agreement.\n7. No Warranty. Buyer acknowledges that neither the Company nor any of its Representatives makes any express or implied representation or\nwarranty as to the accuracy or completeness of any information provided to Buyer or its Representatives. Except as may be provided in a definitive\nwritten agreement with regard to any Transaction between the Company and Buyer, Buyer agrees that neither the Company nor any of the\nCompany’s Representatives shall have any liability to Buyer or any of Buyer’s Representatives relating to or arising from the use of any information\nby Buyer or its Representatives or for any errors in or omissions from such information.\n8. Procedures. Buyer acknowledges that the Company may establish procedures and guidelines governing the process for the submission and\nevaluation of proposals with respect to a Transaction, and any other matters relating thereto (the “Procedures”). Buyer acknowledges and agrees that:\n(a) the Company and its Representatives are free to conduct the process leading up to a Transaction as the Company and its Representatives, in their\nsole discretion, determine (including, without limitation, by negotiating with any third party and entering into a preliminary or definitive written\nagreement without prior notice to Buyer or any other person); (b) the Company reserves the right, in its sole discretion, to change the Procedures at\nany time without prior notice to Buyer or any other person, to reject any and all proposals made by Buyer or any of its Representatives regarding a\nTransaction, and to terminate discussions and negotiations with Buyer at any time and for any reason; and (c) neither the Company nor any of its\nRepresentatives nor any third party with whom the Company may enter into any agreement for or complete any transaction, shall by virtue of this\nAgreement have any liability to Buyer or its Representatives arising out of or relating to such transaction.\n9. Communications. Buyer acknowledges and agrees that all (a) communications regarding a Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding the Procedures will be submitted only\nto “chief” level executives of the Company or employees of Merrill Lynch & Co. specifically designated in writing by the Company or Merrill\nLynch & Co. Each party agrees to not, and shall cause its Representatives not to, initiate or maintain contact with any security-holder, director,\nofficer, employee, partner, manager, member, agent, advisor, representative, customer, supplier, independent contractor, affiliate or lender of the\nother party with respect to, or relating or referring in any way to, a Transaction or the Proprietary Information, other than in the ordinary course of\nbusiness unrelated to a Transaction, unless specifically authorized in advance in writing by the other party.\n3\n10. Non-Solicitation. Each party agrees that, without the other party’s consent, it will not, and it will cause its affiliates to not, for a period of\ntwo (2) years from the date hereof, directly or indirectly, solicit for employment any person who is now employed by the other party; provided,\nhowever, that a party shall not be prohibited from: (a) conducting generalized solicitations for employees (which solicitations are not specifically\ntargeted at the other party’s employees) through the use of media advertisements, professional search firms or otherwise; (b) soliciting or employing\nany person with whom such party and its Representatives have not had contact (or otherwise become aware of) in the course of their evaluation of a\nTransaction, or (c) if Buyer and the Company consummate a Transaction, employing such persons connected with the Company in accordance with\na definitive written agreement with respect to such Transaction.\n11. Standstill. Buyer agrees that, for a period of eighteen (18) months from the date hereof (the “Standstill Period”), neither it nor its affiliates\nwill, unless invited by the Board of Directors of the Company in writing: (a) acquire, offer or propose to acquire, or agree or seek to acquire, directly\nor indirectly, by purchase or otherwise, any securities or direct or indirect rights or options to acquire any securities of the Company or any\nbusinesses or assets of the Company; provided, however that the foregoing shall not restrict Buyer and its affiliates, collectively, from acquiring, in\nthe ordinary course of their business, up to 1% of the outstanding publicly-traded common stock of the Company; (b) enter into or agree, offer,\npropose or seek to enter into, or otherwise be involved in or part of, directly or indirectly, any acquisition transaction or other business combination\nrelating to all or part of the Company or any acquisition transaction for all or part of the assets of the Company or any of its businesses; (c) make, or\nin any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange\nCommission) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the Company;\n(d) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended\n(the “Exchange Act”)) with respect to any voting securities of the Company; (e) seek or propose, alone or in concert with others, to influence or\ncontrol the Company’s management or policies; (f) directly or indirectly enter into any discussions, negotiations, arrangements or understandings\nwith any other person with respect to any of the foregoing activities or propose any of such activities to any other person; (g) advise, assist,\nencourage, act as a financing source for or otherwise invest in any other person in connection with any of the foregoing activities; or (h) disclose any\nintention, plan or arrangement inconsistent with any of the foregoing. Buyer also agrees that, during the Standstill Period, neither Buyer nor its\naffiliates will: (i) request that the Company or its advisors, directly or indirectly, (A) amend or waive any provision of this Section 11 (including this\nsentence) or (B) otherwise consent to any action inconsistent with any provision of this Section 11 (including this sentence); or (ii) take any initiative\nwith respect to the Company which could require the Company to make a public announcement regarding (A) such initiative, (B) any of the\nactivities referred to this Section 11, (C) the possibility of a Transaction or any similar transaction or (D) the possibility of Buyer or any other person\nacquiring control of the Company, whether by means of a business combination or otherwise. Notwithstanding the foregoing, the limitations and\nprohibitions on Buyer set forth in this paragraph shall no longer apply from the earliest of (x) the date the Company enters into a definitive written\nagreement with any person or group other than Buyer which provides for any transaction where such person or group (or such person’s or group’s\nstockholders) would be acquiring at least 40% or more of the outstanding capital stock of the Company or all or substantially all of the assets of the\nCompany (each, a “Third Party Acquisition”), (y) the date any person or group other than Buyer enters into a definitive written agreement to acquire,\nor acquires, “beneficial ownership” (as such term is defined under the Exchange Act) of 40% or more of the outstanding capital stock of the\nCompany or (z) the date any person or group other than Buyer publicly proposes a Third Party Acquisition pursuant to a tender or exchange offer\nand/or a proxy solicitation.\n4\n12. Securities Laws. Each party is aware, and will advise its respective Representatives who are informed of the matters that are the subject of\nthis Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other person when it is\nreasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n13. No Implied Obligations. This Agreement binds the parties only with respect to the matters expressly set forth herein. The Company has no\nobligation to disclose any information to Buyer or its Representatives. Neither party is bound or committed to negotiate or consummate a\nTransaction unless and until a definitive written agreement regarding such Transaction has been executed and delivered on behalf of both parties by\ntheir duly authorized officers, in which case the obligations of the parties to consummate such Transaction and to negotiate any matters in connection\ntherewith shall be subject to, and governed solely by, the terms and conditions of such definitive written agreement.\n14. Non-Exclusive Remedies. It is understood and agreed that the Proprietary Information is special, unique and of extraordinary character,\nand that the Company may be irreparably harmed by a breach of this Agreement. Without prejudice to the rights and remedies otherwise available to\na party, each party agrees that the other party shall be entitled to equitable relief by way of injunction or otherwise if such party or any of its\nrespective Representatives breach or threaten to breach any of the provisions of this Agreement.\n15. Assignment. Each party agrees that the rights and remedies of the other party under this Agreement shall inure to the benefit of, and shall\nbe separately enforceable by, the other party, its affiliates, and its and their respective successors and assigns. Neither party shall assign this\nAgreement without the prior written consent of the other party except that, without such consent, each party shall cause all of its obligations under\nthis Agreement to be assumed, either in writing or by operation of law, by any successor (by merger, sale of assets or otherwise) to the business of\nsuch party or of any portion thereof. No assignment of this Agreement or of any rights or obligations hereunder shall relieve a party of any of its\nobligations hereunder.\n16. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of\nNew York applicable to contracts executed in and to be performed in that State, without regard to conflict of laws principles. The parties hereto agree\nthat venue in any and all actions and proceedings related to this Agreement shall be had in the State and Federal courts located in the city of New\nYork, New York, which courts shall have personal and subject matter jurisdiction for such purpose, and the parties hereto irrevocably submit to the\njurisdiction of such courts and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding.\n17. Miscellaneous. Buyer and the Company each agree to bear its respective costs and expenses, including, without limitation, expenses of\ncounsel, outside auditors, advisors and consultants, in connection with the evaluation of a possible Transaction. This Agreement contains the entire\nagreement between the Company and Buyer concerning the subject matter hereof, and no modification of this Agreement or waiver of any terms\nhereof shall be binding upon the Company or Buyer, unless approved in writing by both of the parties hereto. No failure or delay by a party in\nexercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other\nor further exercise thereof or the exercise of any other right, power or privilege hereunder. If any provision of this Agreement shall, for any reason,\nbe adjudged by any court of competent jurisdiction to be invalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder\nof this Agreement but shall be confined in its operation to the provision of this Agreement directly involved in the controversy in which such\njudgment shall have been rendered. This Agreement may be executed in counterparts and by original, facsimile or electronic signatures, each of\nwhich shall be an original, but all of which together shall constitute one and the same agreement.\n5\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned a copy of this Agreement.\nLIFECELL CORPORATION\nBy: /s/ Paul Thomas\nName: Paul Thomas\nTitle: CEO\nAccepted and agreed\nas of the date set forth above:\nKINETIC CONCEPTS, INC.\nBy: /s/ Martin J. Landon\nName: Martin J. Landon\nTitle: Sr. Vice President\n6	EX-99.(E)(10) 3 dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(10)\nCONFIDENTIAL\nFebruary 4, 2008\nKinetic Concepts, Inc.\n8023 Vantage Drive\nSan Antonio, TX 78230\nRE: Confidentiality Agreement\nLadies and Gentlemen:\nKinetic Concepts, Inc. (“Buyer”) has expressed an interest in exploring a transaction (a “Iransaction”) involving the possible acquisition (by\nmerger, consolidation or otherwise) of all of the outstanding shares of capital stock of LifeCell Corporation, a Delaware corporation (together with\nits subsidiaries and affiliates, the “Company”), and has requested certain information relating to the Company. As a condition to any information\nbeing furnished to Buyer and its Representatives (as defined below), Buyer and the Company agree to be bound by the terms and conditions set forth\nin this letter agreement (“this Agreement”). Buyer further agrees to inform each of its Representatives to whom any information subject to this\nAgreement is disclosed of the terms and conditions of this Agreement, and to cause each such Representative to fully observe and be bound by this\nAgreement (other than Section 11 hereof, except as provided therein) to the same extent as if such Representative were Buyer. This Agreement shall\nsupersede the Mutual Non-Disclosure Agreement entered into between Buyer and Company dated May 9, 2007.\n1. Proprietary Information. As used in this Agreement, the term “Proprietary Information” means all information relating to the Company\n(including, without limitation, all such information concerning or relating to the Company’s assets, liabilities, businesses, customers or suppliers)\nfurnished by or on behalf of the Company or its Representatives, or learned or obtained in any fashion by Buyer or any of its Representatives in\nconnection with visits to the Company’s facilities (which information learned or obtained in connection with such visits shall be deemed disclosed\nby the Company), whether furnished, learned or obtained before, on or after the date hereof, and whether oral, written or electronic. “Proprietary\nInformation” shall include all information of the types described above, regardless of the manner or form in which it is furnished, learned or\nobtained, and includes, without limitation, all data, reports, interpretations, forecasts and records containing or otherwise reflecting any of such\ninformation, whether prepared by the Company or others, and any summaries, analyses or other documents created by Buyer, the Company or others\nwhich refer to, relate to, discuss, constitute or embody all or any portion of any of such information. The term “Proprietary Information” shall not\ninclude, however, information that: (a) is or becomes generally available to the public other than as a result (directly or indirectly) of a disclosure or\nother action by Buyer or its Representatives; (b) was (as demonstrable by written records of Buyer) in Buyer’s possession and obtained on a non-\nconfidential basis prior to the disclosure thereof by the Company or its Representatives; or (c) becomes available to Buyer on a non-confidential\nbasis from a person other than the Company or its Representatives who is not to Buyer’s knowledge after reasonable inquiry otherwise bound by any\nobligation of confidentiality with respect thereto.\n2. Representatives. As used in this Agreement, the term “Representatives” means, as to any person, such person’s affiliates and its and their\ndirectors, officers, employees, agents and advisors (including, without limitation, financial advisors, counsel and accountants). As used in this\nAgreement,\nthe term “person” shall be broadly interpreted to include, without limitation, an individual, the media, and any corporation, company, partnership,\nlimited liability company, or other entity, organization, or association. For the avoidance of doubt, potential purchasers, potential equity investors and\ndebt financing sources shall not constitute Representatives and nothing in this Agreement shall permit Buyer to share Confidential Information with\nany other potential purchaser, potential equity investor or debt financing source, or to enter into or engage in any discussions, negotiations,\nagreements or understandings with (or submit any joint proposal with) any such person regarding a Transaction, the Proprietary Information or the\nCompany without the prior written consent of the Company, which consent may be withheld for any or no reason, and may be conditioned upon\nexecution of a confidentiality agreement in such form as the Company may request in its sole discretion.\n3. Restrictions on Use and Disclosure. Subject to Section 4 below, unless otherwise agreed to in writing by an officer of the Company, Buyer\nagrees, for a period of three (3) years from the date of this Agreement: (a) to keep all Proprietary Information confidential and not to disclose or\nreveal any Proprietary Information to any person other than Representatives of Buyer who are actively and directly participating in the evaluation of\na Transaction on behalf of Buyer; and (b) not to use Proprietary Information for any purpose other than its evaluation of a Transaction. Buyer agrees\nto take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of any Proprietary Information and,\nregardless of compliance by Buyer with the foregoing, shall be responsible and liable to the Company for any breach of the terms of this Agreement\nby Buyer or any of its Representatives. Neither party shall, without the other party’s prior written consent, disclose to any person (other than those of\nits Representatives who are actively and directly participating in the evaluation of a Transaction) any information relating to a Transaction, any\nproposed terms or conditions of a Transaction, or any other information or matters relating thereto, including, without limitation, the fact that\ndiscussions are taking place with respect thereto, the status thereof or the fact that Proprietary Information has been made available to Buyer or its\nRepresentatives. Each party agrees to take all reasonable measures to restrain its respective Representatives from prohibited or unauthorized\ndisclosure any information relating to a Transaction and, regardless of compliance by such party with the foregoing, shall be responsible and liable to\nthe other party for any breach of the terms of this Agreement by any of its Representatives.\n4. Compelled Disclosure. In the event that Buyer or any of its Representatives is legally compelled, pursuant to a subpoena, civil investigative\ndemand, regulatory demand or similar process, or pursuant to applicable law, rule, regulation, stock exchange rule or disclosure requirement of the\nSecurities and Exchange Commission (collectively, “Law”), to disclose any Proprietary Information or either party is legally compelled to disclose\nany other information concerning a Transaction, the compelled party shall seek a written opinion from reputable and experienced outside counsel\nthat a specific disclosure is necessary in order for the compelled party not to be in violation of, or default under, an applicable Law or order. Each\nparty agrees that it shall provide the non-compelled party with prompt notice of such request or requirement as well as a copy of such opinion\ntogether with the text of the proposed disclosure as far in advance of its disclosure as is reasonably practicable, and will in good faith consult with\nand consider the suggestions of the non-compelled party concerning the nature and scope of the information the compelled party proposes to\ndisclose. Each party agrees to cooperate fully with and not to oppose any action by the non-compelled party to obtain a protective order or other\nappropriate remedy in order to limit such disclosure. In the event that no such protective order or other remedy is obtained, or in the event that the\nnon-compelled party waives compliance with the terms of this Agreement, the compelled party may disclose only that part of the Proprietary\nInformation or other information concerning a Transaction as it is advised by counsel in writing is legally required to be disclosed, and shall use its\nbest efforts to ensure that all Proprietary Information and other information concerning a Transaction that is so disclosed will be accorded\nconfidential treatment.\n5. Ownership. Buyer acknowledges that the Proprietary Information is and shall remain the sole and exclusive property of the Company, and\nthat the Company has the exclusive right, title and interest to such Proprietary Information. No right or license, by implication or otherwise, is\ngranted by the Company as a result of this Agreement or as a result of any disclosure of Proprietary Information.\n6. Return or Destruction. At any time the Company so requests in writing for any or no reason, Buyer shall, and shall cause its Representatives\nto: (a) promptly return to the Company all Proprietary Information furnished directly or indirectly by or on behalf of the Company or any of its\nRepresentatives; (b) promptly destroy all copies, summaries, extracts, memoranda, notes and other writings of, containing or based upon any\nProprietary Information, regardless of who prepared such writings; and (c) promptly expunge all Proprietary Information from all computers and\nother electronic or other storage devices. Neither Buyer nor any of its Representatives shall retain any copies or other reproductions in whole or in\npart of any such material. Within fifteen (15) days following the Company’s request to Buyer to take the actions set forth in Sections 6(a), (b) and\n(c) of this Agreement, an officer of Buyer shall certify to the Company, in writing, that Buyer and its Representatives have complied with this\nSection 6. Compliance with this Section 6 shall not terminate or relieve Buyer or its Representatives from their obligations under this Agreement.\n7. No Warranty. Buyer acknowledges that neither the Company nor any of its Representatives makes any express or implied representation or\nwarranty as to the accuracy or completeness of any information provided to Buyer or its Representatives. Except as may be provided in a definitive\nwritten agreement with regard to any Transaction between the Company and Buyer, Buyer agrees that neither the Company nor any of the\nCompany’s Representatives shall have any liability to Buyer or any of Buyer’s Representatives relating to or arising from the use of any information\nby Buyer or its Representatives or for any errors in or omissions from such information.\n8. Procedures. Buyer acknowledges that the Company may establish procedures and guidelines governing the process for the submission and\nevaluation of proposals with respect to a Transaction, and any other matters relating thereto (the “Procedures”). Buyer acknowledges and agrees that:\n(a) the Company and its Representatives are free to conduct the process leading up to a Transaction as the Company and its Representatives, in their\nsole discretion, determine (including, without limitation, by negotiating with any third party and entering into a preliminary or definitive written\nagreement without prior notice to Buyer or any other person); (b) the Company reserves the right, in its sole discretion, to change the Procedures at\nany time without prior notice to Buyer or any other person, to reject any and all proposals made by Buyer or any of its Representatives regarding a\nTransaction, and to terminate discussions and negotiations with Buyer at any time and for any reason; and (c) neither the Company nor any of its\nRepresentatives nor any third party with whom the Company may enter into any agreement for or complete any transaction, shall by virtue of this\nAgreement have any liability to Buyer or its Representatives arising out of or relating to such transaction.\n9. Communications. Buyer acknowledges and agrees that all (a) communications regarding a Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding the Procedures will be submitted only\nto “chief” level executives of the Company or employees of Merrill Lynch & Co. specifically designated in writing by the Company or Merrill\nLynch & Co. Each party agrees to not, and shall cause its Representatives not to, initiate or maintain contact with any security-holder, director,\nofficer, employee, partner, manager, member, agent, advisor, representative, customer, supplier, independent contractor, affiliate or lender of the\nother party with respect to, or relating or referring in any way to, a Transaction or the Proprietary Information, other than in the ordinary course of\nbusiness unrelated to a Transaction, unless specifically authorized in advance in writing by the other party.\n3\n10. Non-Solicitation. Each party agrees that, without the other party’s consent, it will not, and it will cause its affiliates to not, for a period of\ntwo (2) years from the date hereof, directly or indirectly, solicit for employment any person who is now employed by the other party; provided,\nhowever, that a party shall not be prohibited from: (a) conducting generalized solicitations for employees (which solicitations are not specifically\ntargeted at the other party’s employees) through the use of media advertisements, professional search firms or otherwise; (b) soliciting or employing\nany person with whom such party and its Representatives have not had contact (or otherwise become aware of) in the course of their evaluation of a\nTransaction, or (c) if Buyer and the Company consummate a Transaction, employing such persons connected with the Company in accordance with\na definitive written agreement with respect to such Transaction.\n11. Standstill. Buyer agrees that, for a period of eighteen (18) months from the date hereof (the “Standstill Period”), neither it nor its affiliates\nwill, unless invited by the Board of Directors of the Company in writing: (a) acquire, offer or propose to acquire, or agree or seek to acquire, directly\nor indirectly, by purchase or otherwise, any securities or direct or indirect rights or options to acquire any securities of the Company or any\nbusinesses or assets of the Company; provided, however that the foregoing shall not restrict Buyer and its affiliates, collectively, from acquiring, in\nthe ordinary course of their business, up to 1% of the outstanding publicly-traded common stock of the Company; (b) enter into or agree, offer,\npropose or seek to enter into, or otherwise be involved in or part of, directly or indirectly, any acquisition transaction or other business combination\nrelating to all or part of the Company or any acquisition transaction for all or part of the assets of the Company or any of its businesses; (c) make, or\nin any way participate in, directly or indirectly, any “solicitation” of “proxies™ (as such terms are used in the rules of the Securities and Exchange\nCommission) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the Company;\n(d) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended\n(the “Exchange Act”)) with respect to any voting securities of the Company; (e) seek or propose, alone or in concert with others, to influence or\ncontrol the Company’s management or policies; (f) directly or indirectly enter into any discussions, negotiations, arrangements or understandings\nwith any other person with respect to any of the foregoing activities or propose any of such activities to any other person; (g) advise, assist,\nencourage, act as a financing source for or otherwise invest in any other person in connection with any of the foregoing activities; or (h) disclose any\nintention, plan or arrangement inconsistent with any of the foregoing. Buyer also agrees that, during the Standstill Period, neither Buyer nor its\naffiliates will: (i) request that the Company or its advisors, directly or indirectly, (A) amend or waive any provision of this Section 11 (including this\nsentence) or (B) otherwise consent to any action inconsistent with any provision of this Section 11 (including this sentence); or (ii) take any initiative\nwith respect to the Company which could require the Company to make a public announcement regarding (A) such initiative, (B) any of the\nactivities referred to this Section 11, (C) the possibility of a Transaction or any similar transaction or (D) the possibility of Buyer or any other person\nacquiring control of the Company, whether by means of a business combination or otherwise. Notwithstanding the foregoing, the limitations and\nprohibitions on Buyer set forth in this paragraph shall no longer apply from the earliest of (x) the date the Company enters into a definitive written\nagreement with any person or group other than Buyer which provides for any transaction where such person or group (or such person’s or group’s\nstockholders) would be acquiring at least 40% or more of the outstanding capital stock of the Company or all or substantially all of the assets of the\nCompany (each, a “Third Party Acquisition), (y) the date any person or group other than Buyer enters into a definitive written agreement to acquire,\nor acquires, “beneficial ownership” (as such term is defined under the Exchange Act) of 40% or more of the outstanding capital stock of the\nCompany or (z) the date any person or group other than Buyer publicly proposes a Third Party Acquisition pursuant to a tender or exchange offer\nand/or a proxy solicitation.\n12. Securities Laws. Each party is aware, and will advise its respective Representatives who are informed of the matters that are the subject of\nthis Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other person when it is\nreasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n13. No Implied Obligations. This Agreement binds the parties only with respect to the matters expressly set forth herein. The Company has no\nobligation to disclose any information to Buyer or its Representatives. Neither party is bound or committed to negotiate or consummate a\nTransaction unless and until a definitive written agreement regarding such Transaction has been executed and delivered on behalf of both parties by\ntheir duly authorized officers, in which case the obligations of the parties to consummate such Transaction and to negotiate any matters in connection\ntherewith shall be subject to, and governed solely by, the terms and conditions of such definitive written agreement.\n14. Non-Exclusive Remedies. It is understood and agreed that the Proprietary Information is special, unique and of extraordinary character,\nand that the Company may be irreparably harmed by a breach of this Agreement. Without prejudice to the rights and remedies otherwise available to\na party, each party agrees that the other party shall be entitled to equitable relief by way of injunction or otherwise if such party or any of its\nrespective Representatives breach or threaten to breach any of the provisions of this Agreement.\n15. Assignment. Each party agrees that the rights and remedies of the other party under this Agreement shall inure to the benefit of, and shall\nbe separately enforceable by, the other party, its affiliates, and its and their respective successors and assigns. Neither party shall assign this\nAgreement without the prior written consent of the other party except that, without such consent, each party shall cause all of its obligations under\nthis Agreement to be assumed, either in writing or by operation of law, by any successor (by merger, sale of assets or otherwise) to the business of\nsuch party or of any portion thereof. No assignment of this Agreement or of any rights or obligations hereunder shall relieve a party of any of its\nobligations hereunder.\n16. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of\nNew York applicable to contracts executed in and to be performed in that State, without regard to conflict of laws principles. The parties hereto agree\nthat venue in any and all actions and proceedings related to this Agreement shall be had in the State and Federal courts located in the city of New\nYork, New York, which courts shall have personal and subject matter jurisdiction for such purpose, and the parties hereto irrevocably submit to the\njurisdiction of such courts and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding.\n17. Miscellaneous. Buyer and the Company each agree to bear its respective costs and expenses, including, without limitation, expenses of\ncounsel, outside auditors, advisors and consultants, in connection with the evaluation of a possible Transaction. This Agreement contains the entire\nagreement between the Company and Buyer concerning the subject matter hereof, and no modification of this Agreement or waiver of any terms\nhereof shall be binding upon the Company or Buyer, unless approved in writing by both of the parties hereto. No failure or delay by a party in\nexercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other\nor further exercise thereof or the exercise of any other right, power or privilege hereunder. If any provision of this Agreement shall, for any reason,\nbe adjudged by any court of competent jurisdiction to be invalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder\nof this Agreement but shall be confined in its operation to the provision of this Agreement directly involved in the controversy in which such\njudgment shall have been rendered. This Agreement may be executed in counterparts and by original, facsimile or electronic signatures, each of\nwhich shall be an original, but all of which together shall constitute one and the same agreement.\n5\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned a copy of this Agreement. Accepted and agreed\nas of the date set forth above:\nKINETIC CONCEPTS, INC. By: /s/ Martin J. Landon Name: Martin J. Landon\nTitle:  Sr. Vice President\nLIFECELL CORPORATION\nBy:  /s/Paul Thomas Name: Paul Thomas\nTitle: CEO	EX-99.(E)(10) 3 dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(10)\nCONFIDENTIAL\nFebruary 4, 2008\nKinetic Concepts, Inc.\n8023 Vantage Drive\nSan Antonio, TX 78230\nRE: Confidentiality. Agreement\nLadies and Gentlemen:\nKinetic Concepts, Inc. ("Buyer") has expressed an interest in exploring a transaction (a "Transaction") involving the possible acquisition (by\nmerger, consolidation or otherwise) of all of the outstanding shares of capital stock of LifeCell Corporation, a Delaware corporation (together with\nits subsidiaries and affiliates, the "Company."), and has requested certain information relating to the Company. As a condition to any information\nbeing furnished to Buyer and its Representatives (as defined below), Buyer and the Company agree to be bound by the terms and conditions set\nforth\nin this letter agreement ("this Agreement"). Buyer further agrees to inform each of its Representatives to whom any information subject to this\nAgreement is disclosed of the terms and conditions of this Agreement, and to cause each such Representative to fully observe and be bound by\nthis\nAgreement (other than Section 11 hereof, except as provided therein) to the same extent as if such Representative were Buyer. This Agreement shall\nsupersede the Mutual Non-Disclosure Agreement entered into between Buyer and Company dated May 9, 2007.\n1. Proprietary. Information. As used in this Agreement, the term "Proprietary. Information" means all information relating to the Company\n(including,\nwithout\nlimitation, all such information concerning or relating to the Company's assets, liabilities, businesses, customers or suppliers)\nfurnished by or on behalf of the Company or its Representatives, or learned or obtained in any fashion by Buyer or any of its Representatives in\nconnection with visits to the Company's facilities (which information learned or obtained in connection with such visits shall be deemed disclosed\nby\nthe\nCompany),\nwhether furnished, learned or obtained before, on or after the date hereof, and whether oral, written or electronic. "Proprietary.\nInformation" shall include all information of the types described above, regardless of the manner or form in which it is furnished, learned or\nobtained, and includes, without limitation, all data, reports, interpretations, forecasts and records containing or otherwise reflecting any of such\ninformation, whether prepared by the Company or others, and any summaries, analyses or other documents created by Buyer, the Company or others\nwhich refer to, relate to, discuss, constitute or embody all or any portion of any of such information. The term "Proprietary. Information" shall not\ninclude, however, information that: (a) is or becomes generally available to the public other than as a result (directly or indirectly) of a disclosure\nor\nother action by Buyer or its Representatives; (b) was (as demonstrable by written records of Buyer) in Buyer's possession and obtained on a non-\nconfidential basis prior to the disclosure thereof by the Company or its Representatives; or (c) becomes available to Buyer on a non-confidential\nbasis from a person other than the Company or its Representatives who is not to Buyer's knowledge after reasonable inquiry otherwise bound by\nany\nobligation of confidentiality with respect thereto.\n2. Representatives. As used in this Agreement, the term "Representatives" means, as to any person, such person's affiliates and its and their\ndirectors, officers, employees, agents and advisors (including, without limitation, financial advisors, counsel and accountants). As used in this\nAgreement,\nthe term "person" shall be broadly interpreted to include, without limitation, an individual, the media, and any corporation, company, partnership,\nlimited liability company, or other entity, organization, or association. For the avoidance of doubt, potential purchasers, potential equity investors and\ndebt financing sources shall not constitute Representatives and nothing in this Agreement shall permit Buyer to share Confidential Information with\nany other potential purchaser, potential equity investor or debt financing source, or to enter into or engage in any discussions, negotiations,\nagreements or understandings with (or submit any joint proposal with) any such person regarding a Transaction, the Proprietary Information or\nthe\nCompany without the prior written consent of the Company, which consent may be withheld for any or no reason, and may be conditioned upon\nexecution of a confidentiality agreement in such form as the Company may request in its sole discretion.\n3. Restrictions on Use and Disclosure. Subject to Section 4 below, unless otherwise agreed to in writing by an officer of the Company, Buyer\nagrees, for a period of three (3) years from the date of this Agreement: (a) to keep all Proprietary Information confidential and not to disclose or\nreveal any Proprietary Information to any person other than Representatives of Buyer who are actively and directly participating in the evaluation\nof\na Transaction on behalf of Buyer; and (b) not to use Proprietary Information for any purpose other than its evaluation of a Transaction. Buyer agrees\nto take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of any Proprietary Information and,\nregardless of compliance by Buyer with the foregoing, shall be responsible and liable to the Company for any breach of the terms of this Agreement\nby Buyer or any of its Representatives. Neither party shall, without the other party's prior written consent, disclose to any person (other than those\nof\nits Representatives who are actively and directly participating in the evaluation of a Transaction) any information relating to a Transaction, any\nproposed terms or conditions of a Transaction, or any other information or matters relating thereto, including, without limitation, the fact that\ndiscussions are taking place with respect thereto, the status thereof or the fact that Proprietary Information has been made available to Buyer\nor\nits\nRepresentatives. Each party agrees to take all reasonable measures to restrain its respective Representatives from prohibited or unauthorized\ndisclosure any information relating to a Transaction and, regardless of compliance by such party with the foregoing, shall be responsible and liable to\nthe other party for any breach of the terms of this Agreement by any of its Representatives.\n4. Compelled Disclosure. In the event that Buyer or any of its Representatives is legally compelled, pursuant to a subpoena, civil investigative\ndemand, regulatory demand or similar process, or pursuant to applicable law, rule, regulation, stock exchange rule or disclosure requirement of the\nSecurities and Exchange Commission (collectively, "Law"), to disclose any Proprietary Information or either party is legally compelled to disclose\nany other information concerning a Transaction, the compelled party shall seek a written opinion from reputable and experienced outside counsel\nthat a specific disclosure is necessary in order for the compelled party not to be in violation of, or default under, an applicable Law or order. Each\nparty agrees that it shall provide the non-compelled party with prompt notice of such request or requirement as well as a copy of such opinion\ntogether with the text of the proposed disclosure as far in advance of its disclosure as is reasonably practicable, and will in good faith consult with\nand consider the suggestions of the non-compelled party concerning the nature and scope of the information the compelled party proposes to\ndisclose. Each party agrees to cooperate fully with and not to oppose any action by the non-compelled party to obtain a protective order or other\nappropriate remedy in order to limit such disclosure. In the event that no such protective order or other remedy is obtained, or in the event that\nthe\nnon-compelled party waives compliance with the terms of this Agreement, the compelled party may disclose only that part of the Proprietary\nInformation or other information concerning a Transaction as it is advised by counsel in writing is legally required to be disclosed, and shall use its\nbest efforts to ensure that all Proprietary Information and other information concerning a Transaction that is so disclosed will be accorded\nconfidential treatment.\n2\n5. Ownership. Buyer acknowledges that the Proprietary Information is and shall remain the sole and exclusive property of the Company, and\nthat the Company has the exclusive right, title and interest to such Proprietary Information. No right or license, by implication or otherwise, is\ngranted by the Company as a result of this Agreement or as a result of any disclosure of Proprietary Information.\n6. Return or Destruction. At any time the Company so requests in writing for any or no reason, Buyer shall, and shall cause its Representatives\nto:\n(a)\npromptly return to the Company all Proprietary Information furnished directly or indirectly by or on behalf of the Company or any of its\nRepresentatives; (b) promptly destroy all copies, summaries, extracts, memoranda, notes and other writings of, containing or based upon any\nProprietary Information, regardless of who prepared such writings; and (c) promptly expunge all Proprietary Information from all computers and\nother electronic or other storage devices. Neither Buyer nor any of its Representatives shall retain any copies or other reproductions in whole or\nin\npart of any such material. Within fifteen (15) days following the Company's request to Buyer to take the actions set forth in Sections 6(a), (b) and\n(c) of this Agreement, an officer of Buyer shall certify to the Company, in writing, that Buyer and its Representatives have complied with this\nSection 6. Compliance with this Section 6 shall not terminate or relieve Buyer or its Representatives from their obligations under this Agreement.\n7. No Warranty.. Buyer acknowledges that neither the Company nor any of its Representatives makes any express or implied representation or\nwarranty as to the accuracy or completeness of any information provided to Buyer or its Representatives. Except as may be provided in a definitive\nwritten agreement with regard to any Transaction between the Company and Buyer, Buyer agrees that neither the Company nor any of the\nCompany's Representatives shall have any liability to Buyer or any of Buyer's Representatives relating to or arising from the use of any information\nby Buyer or its Representatives or for any errors in or omissions from such information.\n8. Procedures. Buyer acknowledges that the Company may establish procedures and guidelines governing the process for the submission and\nevaluation\nof\nproposals\nwith\nrespect\nto\na\nTransaction,\nand\nany\nother\nmatters\nrelating\nthereto\n(the\n"Procedures").\nBuyer\nacknowledges\nand\nagrees\nthat:\n(a) the Company and its Representatives are free to conduct the process leading up to a Transaction as the Company and its Representatives, in their\nsole discretion, determine (including, without limitation, by negotiating with any third party and entering into a preliminary or definitive written\nagreement without prior notice to Buyer or any other person); (b) the Company reserves the right, in its sole discretion, to change the Procedures\nat\nany time without prior notice to Buyer or any other person, to reject any and all proposals made by Buyer or any of its Representatives regarding a\nTransaction, and to terminate discussions and negotiations with Buyer at any time and for any reason; and (c) neither the Company nor any of its\nRepresentatives nor any third party with whom the Company may enter into any agreement for or complete any transaction, shall by virtue of this\nAgreement have any liability to Buyer or its Representatives arising out of or relating to such transaction.\n9. Communications. Buyer acknowledges and agrees that all (a) communications regarding a Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding the Procedures will be submitted only\nto "chief" level executives of the Company or employees of Merrill Lynch & Co. specifically designated in writing by the Company or Merrill\nLynch & Co. Each party agrees to not, and shall cause its Representatives not to, initiate or maintain contact with any security-holder, director,\nofficer, employee, partner, manager, member, agent, advisor, representative, customer, supplier, independent contractor, affiliate or lender of the\nother party with respect to, or relating or referring in any way to, a Transaction or the Proprietary Information, other than in the ordinary course\nof\nbusiness unrelated to a Transaction, unless specifically authorized in advance in writing by the other party.\n3\n10. Non-Solicitation. Each party agrees that, without the other party's consent, it will not, and it will cause its affiliates to not, for a period of\ntwo (2) years from the date hereof, directly or indirectly, solicit for employment any person who is now employed by the other party; provided,\nhowever, that a party shall not be prohibited from: (a) conducting generalized solicitations for employees (which solicitations are not specifically\ntargeted at the other party's employees) through the use of media advertisements, professiona search firms or otherwise; (b) soliciting or employing\nany person with whom such party and its Representatives have not had contact (or otherwise become aware of) in the course of their evaluation of\na\nTransaction, or (c) if Buyer and the Company consummate a Transaction, employing such persons connected with the Company in accordance with\na definitive written agreement with respect to such Transaction.\n11. Standstill. Buyer agrees that, for a period of eighteen (18) months from the date hereof (the "Standstill Period"), neither it nor its affiliates\nwill, unless invited by the Board of Directors of the Company in writing: (a) acquire, offer or propose to acquire, or agree or seek to acquire, directly\nor indirectly, by purchase or otherwise, any securities or direct or indirect rights or options to acquire any securities of the Company or any\nbusinesses or assets of the Company; provided, however that the foregoing shall not restrict Buyer and its affiliates, collectively, from acquiring, in\nthe ordinary course of their business, up to 1% of the outstanding publicly-traded common stock of the Company; (b) enter into or agree, offer,\npropose or seek to enter into, or otherwise be involved in or part of, directly or indirectly, any acquisition transaction or other business combination\nrelating to all or part of the Company or any acquisition transaction for all or part of the assets of the Company or any of its businesses; (c) make,\nor\nin any way participate in, directly or indirectly, any "solicitation" of "proxies" (as such terms are used in the rules of the Securities and Exchange\nCommission) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the Company;\n(d) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended\n(the "Exchange Act")) with respect to any voting securities of the Company; (e) seek or propose, alone or in concert with others, to influence or\ncontrol the Company's management or policies; (f) directly or indirectly enter into any discussions, negotiations, arrangements or understandings\nwith any other person with respect to any of the foregoing activities or propose any of such activities to any other person; (g) advise, assist,\nencourage, act as a financing source for or otherwise invest in any other person in connection with any of the foregoing activities; or (h) disclose any\nintention, plan or arrangement inconsistent with any of the foregoing. Buyer also agrees that, during the Standstill Period, neither Buyer nor its\naffiliates will: (i) request that the Company or its advisors, directly or indirectly, (A) amend or waive any provision of this Section 11 (including this\nsentence) or (B) otherwise consent to any action inconsistent with any provision of this Section 11 (including this sentence); or (ii) take any initiative\nwith respect to the Company which could require the Company to make a public announcement regarding (A) such initiative, (B) any of the\nactivities referred to this Section 11, (C) the possibility of a Transaction or any similar transaction or (D) the possibility of Buyer or any other person\nacquiring control of the Company, whether by means of a business combination or otherwise. Notwithstanding the foregoing, the limitations and\nprohibitions on Buyer set forth in this paragraph shall no longer apply from the earliest of (x) the date the Company enters into a definitive written\nagreement with any person or group other than Buyer which provides for any transaction where such person or group (or such person's or group's\nstockholders) would be acquiring at least 40% or more of the outstanding capital stock of the Company or all or substantially all of the assets of the\nCompany (each, a "Third Party Acquisition"), (y) the date any person or group other than Buyer enters into a definitive written agreement to acquire,\nor acquires, "beneficial ownership" (as such term is defined under the Exchange Act) of 40% or more of the outstanding capital stock of the\nCompany or (z) the date any person or group other than Buyer publicly proposes a Third Party Acquisition pursuant to a tender or exchange offer\nand/or a proxy solicitation.\n4\n12. Securities Laws. Each party is aware, and will advise its respective Representatives who are informed of the matters that are the subject of\nthis Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other person when it\nis\nreasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n13. No Implied Obligations. This Agreement binds the parties only with respect to the matters expressly set forth herein. The Company has no\nobligation to disclose any information to Buyer or its Representatives. Neither party is bound or committed to negotiate or consummate a\nTransaction unless and until a definitive written agreement regarding such Transaction has been executed and delivered on behalf of both parties by\ntheir duly authorized officers, in which case the obligations of the parties to consummate such Transaction and to negotiate any matters in connection\ntherewith shall be subject to, and governed solely by, the terms and conditions of such definitive written agreement.\n14. Non-Exclusive Remedies. It is understood and agreed that the Proprietary Information is special, unique and of extraordinary character,\nand that the Company may be irreparably harmed by a breach of this Agreement. Without prejudice to the rights and remedies otherwise available to\na party, each party agrees that the other party shall be entitled to equitable relief by way of injunction or otherwise if such party or any of its\nrespective Representatives breach or threaten to breach any of the provisions of this Agreement.\n15. Assignment. Each party agrees that the rights and remedies of the other party under this Agreement shall inure to the benefit of, and shall\nbe separately enforceable by, the other party, its affiliates, and its and their respective successors and assigns. Neither party shall assign this\nAgreement without the prior written consent of the other party except that, without such consent, each party shall cause all of its obligations under\nthis Agreement to be assumed, either in writing or by operation of law, by any successor (by merger, sale of assets or otherwise) to the business\nof\nsuch party or of any portion thereof. No assignment of this Agreement or of any rights or obligations hereunder shall relieve a party of any of its\nobligations hereunder.\n16. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State\nof\nNew York applicable to contracts executed in and to be performed in that State, without regard to conflict of laws principles. The parties hereto agree\nthat venue in any and all actions and proceedings related to this Agreement shall be had in the State and Federal courts located in the city of New\nYork, New York, which courts shall have personal and subject matter jurisdiction for such purpose, and the parties hereto irrevocably\nsubmit\nto\nthe\njurisdiction of such courts and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding.\n17. Miscellaneous. Buyer and the Company each agree to bear its respective costs and expenses, including, without limitation, expenses of\ncounsel, outside auditors, advisors and consultants, in connection with the evaluation of a possible Transaction. This Agreement contains the entire\nagreement between the Company and Buyer concerning the subject matter hereof, and no modification of this Agreement or waiver of any terms\nhereof shall be binding upon the Company or Buyer, unless approved in writing by both of the parties hereto. No failure or delay by a party in\nexercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other\nor further exercise thereof or the exercise of any other right, power or privilege hereunder. If any provision of this Agreement shall, for any reason,\nbe adjudged by any court of competent jurisdiction to be invalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder\nof this Agreement but shall be confined in its operation to the provision of this Agreement directly involved in the controversy in which such\njudgment shall have been rendered. This Agreement may be executed in counterparts and by original, facsimile or electronic signatures, each of\nwhich shall be an original, but all of which together shall constitute one and the same agreement.\n5\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned a copy of this Agreement.\nLIFECELL CORPORATION\nBy:\n/s/ Paul Thomas\nName: Paul Thomas\nTitle: CEO\nAccepted and agreed\nas of the date set forth above:\nKINETIC CONCEPTS, INC.\nBy:\n/s/ Martin J. Landon\nName: Martin J. Landon\nTitle: Sr. Vice President\n6	EX-99.(E)(10) 3 dex99e10.htm CONFIDENTIALITY AGREEMENT\nExhibit (e)(10)\nCONFIDENTIAL\nFebruary 4, 2008\nKinetic Concepts, Inc.\n8023 Vantage Drive\nSan Antonio, TX 78230\nRE: Confidentiality Agreement\nLadies and Gentlemen:\nKinetic Concepts, Inc. (“Buyer”) has expressed an interest in exploring a transaction (a “Transaction”) involving the possible acquisition (by\nmerger, consolidation or otherwise) of all of the outstanding shares of capital stock of LifeCell Corporation, a Delaware corporation (together with\nits subsidiaries and affiliates, the “Company”), and has requested certain information relating to the Company. As a condition to any information\nbeing furnished to Buyer and its Representatives (as defined below), Buyer and the Company agree to be bound by the terms and conditions set forth\nin this letter agreement (“this Agreement”). Buyer further agrees to inform each of its Representatives to whom any information subject to this\nAgreement is disclosed of the terms and conditions of this Agreement, and to cause each such Representative to fully observe and be bound by this\nAgreement (other than Section 11 hereof, except as provided therein) to the same extent as if such Representative were Buyer. This Agreement shall\nsupersede the Mutual Non-Disclosure Agreement entered into between Buyer and Company dated May 9, 2007.\n1. Proprietary Information. As used in this Agreement, the term “Proprietary Information” means all information relating to the Company\n(including, without limitation, all such information concerning or relating to the Company’s assets, liabilities, businesses, customers or suppliers)\nfurnished by or on behalf of the Company or its Representatives, or learned or obtained in any fashion by Buyer or any of its Representatives in\nconnection with visits to the Company’s facilities (which information learned or obtained in connection with such visits shall be deemed disclosed\nby the Company), whether furnished, learned or obtained before, on or after the date hereof, and whether oral, written or electronic. “Proprietary\nInformation” shall include all information of the types described above, regardless of the manner or form in which it is furnished, learned or\nobtained, and includes, without limitation, all data, reports, interpretations, forecasts and records containing or otherwise reflecting any of such\ninformation, whether prepared by the Company or others, and any summaries, analyses or other documents created by Buyer, the Company or others\nwhich refer to, relate to, discuss, constitute or embody all or any portion of any of such information. The term “Proprietary Information” shall not\ninclude, however, information that: (a) is or becomes generally available to the public other than as a result (directly or indirectly) of a disclosure or\nother action by Buyer or its Representatives; (b) was (as demonstrable by written records of Buyer) in Buyer’s possession and obtained on a non-\nconfidential basis prior to the disclosure thereof by the Company or its Representatives; or (c) becomes available to Buyer on a non-confidential\nbasis from a person other than the Company or its Representatives who is not to Buyer’s knowledge after reasonable inquiry otherwise bound by any\nobligation of confidentiality with respect thereto.\n2. Representatives. As used in this Agreement, the term “Representatives” means, as to any person, such person’s affiliates and its and their\ndirectors, officers, employees, agents and advisors (including, without limitation, financial advisors, counsel and accountants). As used in this\nAgreement,\nthe term “person” shall be broadly interpreted to include, without limitation, an individual, the media, and any corporation, company, partnership,\nlimited liability company, or other entity, organization, or association. For the avoidance of doubt, potential purchasers, potential equity investors and\ndebt financing sources shall not constitute Representatives and nothing in this Agreement shall permit Buyer to share Confidential Information with\nany other potential purchaser, potential equity investor or debt financing source, or to enter into or engage in any discussions, negotiations,\nagreements or understandings with (or submit any joint proposal with) any such person regarding a Transaction, the Proprietary Information or the\nCompany without the prior written consent of the Company, which consent may be withheld for any or no reason, and may be conditioned upon\nexecution of a confidentiality agreement in such form as the Company may request in its sole discretion.\n3. Restrictions on Use and Disclosure. Subject to Section 4 below, unless otherwise agreed to in writing by an officer of the Company, Buyer\nagrees, for a period of three (3) years from the date of this Agreement: (a) to keep all Proprietary Information confidential and not to disclose or\nreveal any Proprietary Information to any person other than Representatives of Buyer who are actively and directly participating in the evaluation of\na Transaction on behalf of Buyer; and (b) not to use Proprietary Information for any purpose other than its evaluation of a Transaction. Buyer agrees\nto take all reasonable measures to restrain its Representatives from prohibited or unauthorized disclosure or use of any Proprietary Information and,\nregardless of compliance by Buyer with the foregoing, shall be responsible and liable to the Company for any breach of the terms of this Agreement\nby Buyer or any of its Representatives. Neither party shall, without the other party’s prior written consent, disclose to any person (other than those of\nits Representatives who are actively and directly participating in the evaluation of a Transaction) any information relating to a Transaction, any\nproposed terms or conditions of a Transaction, or any other information or matters relating thereto, including, without limitation, the fact that\ndiscussions are taking place with respect thereto, the status thereof or the fact that Proprietary Information has been made available to Buyer or its\nRepresentatives. Each party agrees to take all reasonable measures to restrain its respective Representatives from prohibited or unauthorized\ndisclosure any information relating to a Transaction and, regardless of compliance by such party with the foregoing, shall be responsible and liable to\nthe other party for any breach of the terms of this Agreement by any of its Representatives.\n4. Compelled Disclosure. In the event that Buyer or any of its Representatives is legally compelled, pursuant to a subpoena, civil investigative\ndemand, regulatory demand or similar process, or pursuant to applicable law, rule, regulation, stock exchange rule or disclosure requirement of the\nSecurities and Exchange Commission (collectively, “Law”), to disclose any Proprietary Information or either party is legally compelled to disclose\nany other information concerning a Transaction, the compelled party shall seek a written opinion from reputable and experienced outside counsel\nthat a specific disclosure is necessary in order for the compelled party not to be in violation of, or default under, an applicable Law or order. Each\nparty agrees that it shall provide the non-compelled party with prompt notice of such request or requirement as well as a copy of such opinion\ntogether with the text of the proposed disclosure as far in advance of its disclosure as is reasonably practicable, and will in good faith consult with\nand consider the suggestions of the non-compelled party concerning the nature and scope of the information the compelled party proposes to\ndisclose. Each party agrees to cooperate fully with and not to oppose any action by the non-compelled party to obtain a protective order or other\nappropriate remedy in order to limit such disclosure. In the event that no such protective order or other remedy is obtained, or in the event that the\nnon-compelled party waives compliance with the terms of this Agreement, the compelled party may disclose only that part of the Proprietary\nInformation or other information concerning a Transaction as it is advised by counsel in writing is legally required to be disclosed, and shall use its\nbest efforts to ensure that all Proprietary Information and other information concerning a Transaction that is so disclosed will be accorded\nconfidential treatment.\n2\n5. Ownership. Buyer acknowledges that the Proprietary Information is and shall remain the sole and exclusive property of the Company, and\nthat the Company has the exclusive right, title and interest to such Proprietary Information. No right or license, by implication or otherwise, is\ngranted by the Company as a result of this Agreement or as a result of any disclosure of Proprietary Information.\n6. Return or Destruction. At any time the Company so requests in writing for any or no reason, Buyer shall, and shall cause its Representatives\nto: (a) promptly return to the Company all Proprietary Information furnished directly or indirectly by or on behalf of the Company or any of its\nRepresentatives; (b) promptly destroy all copies, summaries, extracts, memoranda, notes and other writings of, containing or based upon any\nProprietary Information, regardless of who prepared such writings; and (c) promptly expunge all Proprietary Information from all computers and\nother electronic or other storage devices. Neither Buyer nor any of its Representatives shall retain any copies or other reproductions in whole or in\npart of any such material. Within fifteen (15) days following the Company’s request to Buyer to take the actions set forth in Sections 6(a), (b) and\n(c) of this Agreement, an officer of Buyer shall certify to the Company, in writing, that Buyer and its Representatives have complied with this\nSection 6. Compliance with this Section 6 shall not terminate or relieve Buyer or its Representatives from their obligations under this Agreement.\n7. No Warranty. Buyer acknowledges that neither the Company nor any of its Representatives makes any express or implied representation or\nwarranty as to the accuracy or completeness of any information provided to Buyer or its Representatives. Except as may be provided in a definitive\nwritten agreement with regard to any Transaction between the Company and Buyer, Buyer agrees that neither the Company nor any of the\nCompany’s Representatives shall have any liability to Buyer or any of Buyer’s Representatives relating to or arising from the use of any information\nby Buyer or its Representatives or for any errors in or omissions from such information.\n8. Procedures. Buyer acknowledges that the Company may establish procedures and guidelines governing the process for the submission and\nevaluation of proposals with respect to a Transaction, and any other matters relating thereto (the “Procedures”). Buyer acknowledges and agrees that:\n(a) the Company and its Representatives are free to conduct the process leading up to a Transaction as the Company and its Representatives, in their\nsole discretion, determine (including, without limitation, by negotiating with any third party and entering into a preliminary or definitive written\nagreement without prior notice to Buyer or any other person); (b) the Company reserves the right, in its sole discretion, to change the Procedures at\nany time without prior notice to Buyer or any other person, to reject any and all proposals made by Buyer or any of its Representatives regarding a\nTransaction, and to terminate discussions and negotiations with Buyer at any time and for any reason; and (c) neither the Company nor any of its\nRepresentatives nor any third party with whom the Company may enter into any agreement for or complete any transaction, shall by virtue of this\nAgreement have any liability to Buyer or its Representatives arising out of or relating to such transaction.\n9. Communications. Buyer acknowledges and agrees that all (a) communications regarding a Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding the Procedures will be submitted only\nto “chief” level executives of the Company or employees of Merrill Lynch & Co. specifically designated in writing by the Company or Merrill\nLynch & Co. Each party agrees to not, and shall cause its Representatives not to, initiate or maintain contact with any security-holder, director,\nofficer, employee, partner, manager, member, agent, advisor, representative, customer, supplier, independent contractor, affiliate or lender of the\nother party with respect to, or relating or referring in any way to, a Transaction or the Proprietary Information, other than in the ordinary course of\nbusiness unrelated to a Transaction, unless specifically authorized in advance in writing by the other party.\n3\n10. Non-Solicitation. Each party agrees that, without the other party’s consent, it will not, and it will cause its affiliates to not, for a period of\ntwo (2) years from the date hereof, directly or indirectly, solicit for employment any person who is now employed by the other party; provided,\nhowever, that a party shall not be prohibited from: (a) conducting generalized solicitations for employees (which solicitations are not specifically\ntargeted at the other party’s employees) through the use of media advertisements, professional search firms or otherwise; (b) soliciting or employing\nany person with whom such party and its Representatives have not had contact (or otherwise become aware of) in the course of their evaluation of a\nTransaction, or (c) if Buyer and the Company consummate a Transaction, employing such persons connected with the Company in accordance with\na definitive written agreement with respect to such Transaction.\n11. Standstill. Buyer agrees that, for a period of eighteen (18) months from the date hereof (the “Standstill Period”), neither it nor its affiliates\nwill, unless invited by the Board of Directors of the Company in writing: (a) acquire, offer or propose to acquire, or agree or seek to acquire, directly\nor indirectly, by purchase or otherwise, any securities or direct or indirect rights or options to acquire any securities of the Company or any\nbusinesses or assets of the Company; provided, however that the foregoing shall not restrict Buyer and its affiliates, collectively, from acquiring, in\nthe ordinary course of their business, up to 1% of the outstanding publicly-traded common stock of the Company; (b) enter into or agree, offer,\npropose or seek to enter into, or otherwise be involved in or part of, directly or indirectly, any acquisition transaction or other business combination\nrelating to all or part of the Company or any acquisition transaction for all or part of the assets of the Company or any of its businesses; (c) make, or\nin any way participate in, directly or indirectly, any “solicitation” of “proxies” (as such terms are used in the rules of the Securities and Exchange\nCommission) to vote, or seek to advise or influence any person or entity with respect to the voting of, any voting securities of the Company;\n(d) form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended\n(the “Exchange Act”)) with respect to any voting securities of the Company; (e) seek or propose, alone or in concert with others, to influence or\ncontrol the Company’s management or policies; (f) directly or indirectly enter into any discussions, negotiations, arrangements or understandings\nwith any other person with respect to any of the foregoing activities or propose any of such activities to any other person; (g) advise, assist,\nencourage, act as a financing source for or otherwise invest in any other person in connection with any of the foregoing activities; or (h) disclose any\nintention, plan or arrangement inconsistent with any of the foregoing. Buyer also agrees that, during the Standstill Period, neither Buyer nor its\naffiliates will: (i) request that the Company or its advisors, directly or indirectly, (A) amend or waive any provision of this Section 11 (including this\nsentence) or (B) otherwise consent to any action inconsistent with any provision of this Section 11 (including this sentence); or (ii) take any initiative\nwith respect to the Company which could require the Company to make a public announcement regarding (A) such initiative, (B) any of the\nactivities referred to this Section 11, (C) the possibility of a Transaction or any similar transaction or (D) the possibility of Buyer or any other person\nacquiring control of the Company, whether by means of a business combination or otherwise. Notwithstanding the foregoing, the limitations and\nprohibitions on Buyer set forth in this paragraph shall no longer apply from the earliest of (x) the date the Company enters into a definitive written\nagreement with any person or group other than Buyer which provides for any transaction where such person or group (or such person’s or group’s\nstockholders) would be acquiring at least 40% or more of the outstanding capital stock of the Company or all or substantially all of the assets of the\nCompany (each, a “Third Party Acquisition”), (y) the date any person or group other than Buyer enters into a definitive written agreement to acquire,\nor acquires, “beneficial ownership” (as such term is defined under the Exchange Act) of 40% or more of the outstanding capital stock of the\nCompany or (z) the date any person or group other than Buyer publicly proposes a Third Party Acquisition pursuant to a tender or exchange offer\nand/or a proxy solicitation.\n4\n12. Securities Laws. Each party is aware, and will advise its respective Representatives who are informed of the matters that are the subject of\nthis Agreement, of the restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received\nmaterial, non-public information from the issuer of such securities and on the communication of such information to any other person when it is\nreasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon such information.\n13. No Implied Obligations. This Agreement binds the parties only with respect to the matters expressly set forth herein. The Company has no\nobligation to disclose any information to Buyer or its Representatives. Neither party is bound or committed to negotiate or consummate a\nTransaction unless and until a definitive written agreement regarding such Transaction has been executed and delivered on behalf of both parties by\ntheir duly authorized officers, in which case the obligations of the parties to consummate such Transaction and to negotiate any matters in connection\ntherewith shall be subject to, and governed solely by, the terms and conditions of such definitive written agreement.\n14. Non-Exclusive Remedies. It is understood and agreed that the Proprietary Information is special, unique and of extraordinary character,\nand that the Company may be irreparably harmed by a breach of this Agreement. Without prejudice to the rights and remedies otherwise available to\na party, each party agrees that the other party shall be entitled to equitable relief by way of injunction or otherwise if such party or any of its\nrespective Representatives breach or threaten to breach any of the provisions of this Agreement.\n15. Assignment. Each party agrees that the rights and remedies of the other party under this Agreement shall inure to the benefit of, and shall\nbe separately enforceable by, the other party, its affiliates, and its and their respective successors and assigns. Neither party shall assign this\nAgreement without the prior written consent of the other party except that, without such consent, each party shall cause all of its obligations under\nthis Agreement to be assumed, either in writing or by operation of law, by any successor (by merger, sale of assets or otherwise) to the business of\nsuch party or of any portion thereof. No assignment of this Agreement or of any rights or obligations hereunder shall relieve a party of any of its\nobligations hereunder.\n16. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of\nNew York applicable to contracts executed in and to be performed in that State, without regard to conflict of laws principles. The parties hereto agree\nthat venue in any and all actions and proceedings related to this Agreement shall be had in the State and Federal courts located in the city of New\nYork, New York, which courts shall have personal and subject matter jurisdiction for such purpose, and the parties hereto irrevocably submit to the\njurisdiction of such courts and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding.\n17. Miscellaneous. Buyer and the Company each agree to bear its respective costs and expenses, including, without limitation, expenses of\ncounsel, outside auditors, advisors and consultants, in connection with the evaluation of a possible Transaction. This Agreement contains the entire\nagreement between the Company and Buyer concerning the subject matter hereof, and no modification of this Agreement or waiver of any terms\nhereof shall be binding upon the Company or Buyer, unless approved in writing by both of the parties hereto. No failure or delay by a party in\nexercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other\nor further exercise thereof or the exercise of any other right, power or privilege hereunder. If any provision of this Agreement shall, for any reason,\nbe adjudged by any court of competent jurisdiction to be invalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder\nof this Agreement but shall be confined in its operation to the provision of this Agreement directly involved in the controversy in which such\njudgment shall have been rendered. This Agreement may be executed in counterparts and by original, facsimile or electronic signatures, each of\nwhich shall be an original, but all of which together shall constitute one and the same agreement.\n5\nPlease confirm your agreement with the foregoing by signing and returning to the undersigned a copy of this Agreement.\nLIFECELL CORPORATION\nBy: /s/ Paul Thomas\nName: Paul Thomas\nTitle: CEO\nAccepted and agreed\nas of the date set forth above:\nKINETIC CONCEPTS, INC.\nBy: /s/ Martin J. Landon\nName: Martin J. Landon\nTitle: Sr. Vice President\n6
+de16dbc40a06dd67d07169a63d6d4fbd.pdf	effective_date jurisdiction party term	EX-10.127 4 dex10127.htm EMPLOYMENT, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT\nExhibit 10.127\nEMPLOYMENT, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT\nAGREEMENT entered into this 11 day of September 2009 (start date) by and between Comverse, Inc., a Delaware Corporation, on\nbehalf of itself and its subsidiaries (the “Company”) and Danna Rabin “Employee”.\nWHEREAS, the Employee has agreed to be employed by the Company, and\nWHEREAS, the parties desire to provide for the terms of Employee’s services to the Company,\nNOW, THEREFORE, in consideration of Employee’s employment by the Company, the compensation received by Employee from time\nto time hereunder, and the mutual covenants contained herein, the parties agree as follows:\n1. Duties\n1.1 The Company hereby hires Danna Rabin as an at-will employee for the position of Vice President of Professional Services Sales for a\nperiod commencing on the date of this Agreement and terminating in accordance with the provisions of Section 3 of this Agreement. Employee shall\ndevote essentially his/her full time and best efforts to the advancement of the interests of the Company, and shall perform such duties as may be\nprescribed from time to time by an Officer of the Company. For the purposes of this Section, “full time” shall be defined as at least forty (40) hours\nper week.\n2. Compensation\n2.1 In consideration of the services to be performed under this Agreement, Employee shall receive as gross compensation the sum of $6,923.07\n(bi-weekly) subject to withholding and other applicable taxes. At least once during each year of employment, an Officer of the Company shall\nreview the performance of Employee and shall make such adjustments to his/her gross compensation as deemed appropriate by the Company. The\nEmployee shall also be entitled to participate in benefit programs the Company establishes and makes generally available to all employees of the\nCompany, to the extent the employee is eligible to participate based on tenure, age, pay, health and other eligibility requirements.\n3. Termination\n3.1 Employment under this Agreement may be terminated immediately by the Company at any time for cause. “Cause” shall, for the purpose\nof this Section, be defined as a good faith finding by the Company of a material violation of any of the provisions of this Agreement or some other\nmaterial breach of duty owed by Employee to the Company, violation of a Company policy or procedure, fraud or dishonesty, theft of Company\nassets, gross negligence or misconduct, or the conviction or plea of nolo contendere to a felony or crime of moral turpitude . Employee may also be\nterminated without cause as follows: (1) if Employee is on international assignment and is terminated with an effective termination date prior to the\nend date of the international assignment period, Employee is entitled to three months’ advance notice of termination or, at the Company’s election,\npayment in lieu of notice of Employee’s then current gross compensation (plus accrued bonus and commission if applicable) for a three month\nperiod;\n1\n2\nor (2) if Employee is terminated with an effective termination date after the end date of the international assignment period, Employee is entitled to\ntwo weeks’ advance notice of termination or, at the Company’s election, payment in lieu of notice of Employee’s then current gross compensation\n(plus accrued bonus and commission if applicable) for a two week period.\nNolo Contendere is a plea entered by a defendant in a criminal case where a defendant neither admits nor denies guilt, but the criminal court\ncan impose a fine or a prison sentence. The main difference between a plea of nolo contendere and a guilty plea is that a nolo contendere plea\ncan not be used against a defendant in a civil action for the same acts, where as a guilty plea can be so used.\nCrimes of moral turpitude are crimes that are morally bad, contrary to what is accepted and customary in society.\n4. Disclosure and Surrender of Confidential Information\n4.1 Employee expressly acknowledges that he/she has received and will continue to receive “Confidential Information” pertaining to the\nproducts, services, operations and/or business affairs of the Company. For the purposes of this Agreement, “Confidential Information” shall include,\nbut not be limited to, information concerning or related to the Company’s financial matters, business methods and practices, the Company’s\nproprietary computer software, firmware, hardware, documentation, scientific, technical, economic, or engineering information including patterns,\nplans, compilations, program devices, formulae, designs, prototypes, methods, techniques, processes, procedures, programs or codes, whether\ntangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically or photographically (including,\nwithout limiting the generality of the foregoing, any such items created, developed, produced or made known to Employee during the period of or\narising out of Employee’s employment with the Company), the Company’s suppliers, customers and potential customers, confidential information\ndisclosed to the Company by a third party, the Company’s sales and marketing plans, and any other information not generally known to the public\nwhich, if misused or disclosed, could have a reasonable possibility of adversely affecting the Company’s business or financial condition.\n4.2 In recognition of the fact that such Confidential Information contains valuable trade secrets of the Company, Employee agrees that he/she\nshall not, during the term of this Agreement and thereafter, use or disclose to any third party any such Confidential Information for any reason or\npurpose whatsoever without the express written consent of the Company. Employee understands that, pursuant to the Economic Espionage Act,\nviolation of this Section 4.2 could result in a fine, imprisonment or both.\n4.3 Employee hereby assigns to the Company any and all rights, title and interest that Employee now has in the Company’s Confidential\nInformation and agrees to assign to the Company any and all rights, title and interest that Employee may hereafter acquire in the Company’s\nConfidential Information.\n4.4 Upon termination of his/her employment with the Company, for whatever reason, Employee will promptly surrender to the Company all\ncopies, in whatever form, of the Company’s Confidential Information in Employee’s possession or control, and Employee will not remove or\ntransmit by any means from the Company or take with him/her any of the Company’s Confidential Information that is embodied in any tangible\nmedium of expression.\n2\n1\n2\n5. Confidentiality of Previous Employers/Clients\n5.1 Employee represents that his/her performance hereunder does not and will not breach any agreement to keep in confidence any proprietary\ninformation acquired by Employee in confidence or in trust of a present or former employer or client. Employee also understands that at no time\nduring his/her employment with the Company is Employee to breach any obligation of confidentiality that Employee has to present or former\nemployers or clients, and Employee agrees to fulfill all such obligations during his/her employment with the Company. Employee agrees that he/she\nshall not disclose to the Company any proprietary information of a third party without written permission from the third party. Employee understands\nthat, pursuant to the Economic Espionage Act, violation of this Section could result in a fine, imprisonment or both.\n6. Disclosure of Inventions\n6.1 For the purposes of this Agreement, “Inventions” shall have the same meaning as set forth in 35 U.S .C. §§ 100 and 101, and may include\nwithout limitation, any of the following as applicable: all discoveries, developments, designs, improvements, inventions, formulae, processes,\ntechniques, computer programs, strategies, specific computer-related or telecommunications-related know-how and data.\n6.2 During Employee’s employment by the Company and for a period of six (6) months thereafter, Employee will promptly and fully disclose\nto the Company (and to any persons designated by it) any and all Inventions generated or conceived or reduced to practice or learned by Employee,\neither alone or jointly with others, which result from or relate to tasks assigned by the Company to Employee, or which result from or relate to tasks,\nprojects or products being conducted or made within the Company about which Employee has obtained substantial knowledge during his/her\nemployment with the Company.\n7. Ownership Rights and Assignment of Inventions\n7.1 Employee and the Company hereby agree that, to the extent the United States copyright laws or the laws of any jurisdiction bound to\nrecognize rights of copyright, author’s rights or any similar other rights so permit, all services rendered by Employee hereunder, and the work\nproduct resulting from same, are and shall be deemed to be performed by Employee as work for hire or works made for hire for the Company, and\nare and shall be the sole and exclusive property of the Company. To the extent such laws or any rule of law does not so permit, then Employee\nexpressly agrees to assign to the Company any and all rights, title and interest which Employee has or hereafter acquires in such services and work\nproduct, including without limitation, any and all rights to copyrights, trademarks and trade secrets thereto.\n7.2 Employee agrees that all Inventions generated or conceived or reduced to practice or learned by Employee, either alone or jointly with\nothers, during the following time periods: (a) during Employee’s employment by the Company and (b) for a period of six (6) months thereafter, shall\nbe the sole property of the Company and its assigns, and the Company and its assigns shall be the sole owner of all patent applications and all patents\nissued in connection therewith, provided however, that such Inventions in any way result from or relate to tasks assigned to the Employee during\nhis/her employment at the Company, or which result from or relate to tasks, projects or products being conducted or made within the Company about\nwhich Employee obtained substantial knowledge during his/her employment\n3\nat the Company. Employee hereby assigns to the Company any and all rights, title and interest which Employee has in such Inventions, and agrees to\nassign to the Company any and all rights, title and interest which Employee may hereafter acquire in such Inventions.\n7.3 With respect to all such Inventions described in Section 6.2 and Section 7.2 above, Employee further agrees to assist the Company in every\nproper way (but at the Company’s expense) to apply for, prosecute, obtain, defend and enforce patents, and other proprietary rights and protections\nrelating to said Inventions in any and all countries, including but not limited to, as the Company may elect: (a) taking all lawful oaths and doing all\nlawful acts, including giving testimony, and (b) executing all documents, including, but not limited to, all applications, powers, assignments and\nother papers deemed by the Company or persons designated by it to be necessary or advisable.\n7.4 Employee’s obligations as set forth in Section 6.2 and Section 7.3 above shall continue beyond the termination of his/her employment by\nthe Company, but the Company shall compensate Employee at a reasonable rate after Employee’s termination for time actually spent by Employee\non such assistance. In the event the Company is unable, after reasonable effort, to secure Employee’s signature on any document or documents\nneeded to apply for, prosecute, obtain, defend or enforce any patent, copyright, trademark, trade secret, or other proprietary right or protection\nrelating to an Invention described in Sections 6 and 7 above, whether because of Employee’s physical or mental incapacity or for any other reason\nwhatsoever, Employee hereby irrevocably designates and appoints the Company and its duly authorized Officers and agents as Employee’s agent\ncoupled with an interest and attorney-in-fact, to act for and in Employee’s behalf and stead to execute and file any such documents and to do all\nother lawfully permitted acts to further the Company’s rights hereunder with the same legal force and effect as if executed by Employee.\n8. Previous Inventions\n8.1 As a matter of record Employee has identified below and in an attachment hereto (as required), all Inventions generated or conceived or\nreduced to practice or learned by Employee, either alone or jointly with others, prior to his/her employment by the Company, which Employee\ndesires to remove from the operation of this Agreement. Employee represents and warrants that such list is complete. If there is no such information\nlisted, Employee represents that he/she made no such Inventions at the time of signing this Agreement.\nThe following is a complete list of all Inventions relative to the subject matter of my service as an employee of the Company that have\nbeen generated or conceived or first reduced to practice or learned by me, alone or jointly with others, prior to my employment by the Company:\n[X]\nNo Inventions\n[]\nSee Below:\n[]\nAdditional sheets attached\n4\n9. Restrictive Covenant\n9.1 For and in consideration of the compensation to be paid by the Company pursuant to the terms hereof, and in recognition of the fact that\nEmployee will have access to Confidential Information and other valuable rights of the Company, Employee covenants and agrees that he/she will\nnot, at any time during his/her employment with the Company, and for a period of six (6) months thereafter, directly or indirectly, engage in any\nbusiness or in any activity related to the development, sale, production, manufacturing, marketing or distribution of products or services which are in\ncompetition with products or services which the Company or any of its subsidiaries produces, sells, manufactures, markets, distributes or has interest\nin, in any state or foreign country in which the Company or any of its subsidiaries then conducts business or reasonably has plans to conduct\nbusiness. It is not the intent of this covenant to bar Employee from employment in any company whose general business is the manufacture of\ncommunications equipment or delivery of communications services, only to limit specific and direct competition with the Company. Employee\nfurther agrees that during his/her employment by the Company and for a period of (12) months thereafter, Employee shall not, directly or indirectly,\ninduce, attempt to induce, or aid others in inducing, a salaried employee of the Company to accept employment or affiliation with another firm or\ncorporation engaging in such business or activity of which Employee is an employee, owner, partner or consultant.\n9.2 The Company and Employee agree that the duration and geographic scope of this Restrictive Covenant provision, set forth in this\nSection 9., are reasonable. In the event that any court of competent jurisdiction determines that the duration or the geographic scope, or both, are\nunreasonable and that such provision is to that extent unenforceable, the Company and Employee hereto agree that the provision shall remain in full\nforce and effect for the greatest time period and in the greatest area that would not render it unenforceable. The Company and Employee intend that\nthis provision shall be deemed to be a series of separate covenants, one for each and every county of each and every state of the United States of\nAmerica and each and every political subdivision of each and every country outside the United States of America where this provision is intended to\nbe effective.\n9.3 Notwithstanding the foregoing, nothing contained in this Agreement shall prevent Employee from being an investor in securities of a\ncompetitor listed on a national securities exchange or actively traded over-the-counter so long as such investments are in amounts not significant as\ncompared to his/her total investments or to the aggregate of the outstanding securities of the issuer of the same class or issue of the specific securities\ninvolved.\n10. Damages - Injunctive Relief\n10.1 In the event of a breach or threatened breach by Employee of any of the provisions of this Agreement, the Company shall be entitled to\ntemporary and/or permanent injunctions in order to prevent or restrain any such breach by Employee or by Employee’s partners, agents,\nrepresentatives, servants, employers and employees. Said remedies shall be in addition to, and not in limitation of, any other rights or remedies to\nwhich the Company is or may be entitled at law, in equity, or under this Agreement.\n11. Assignment\n11.1 Employee acknowledges that the services to be rendered by him/her are unique and personal. Accordingly, Employee may not assign any\nof his/her rights or delegate any of his/her duties or\n5\nobligations under this Agreement. In the event that the Company shall be merged with, or consolidated into, any other corporation or entity, or in the\nevent that the Company shall sell or transfer substantially all of its assets to another corporation or entity, the terms of this Agreement shall inure to\nthe benefit of, and be assumed by, such corporation or entity.\n12. Notices\n12.1 Any notice required or desired to be given under this Agreement shall be deemed given if in writing sent by certified mail, to his/her\nresidence in the case of Employee, or to its principal office in the case of the Company.\n13. Applicable Law\n13.1 This Agreement has been made in and shall be governed by the laws of the Commonwealth of Massachusetts.\n14. Massachusetts Courts\n14.1 Any action to enforce, arising out of, or relating in any way to, any of the provisions of this Agreement may be brought and prosecuted in\nsuch court or courts located in the Commonwealth of Massachusetts as is provided by law; and the parties consent to the jurisdiction of said court or\ncourts located in the Commonwealth of Massachusetts and to service of process by registered mail, return receipt requested, or by any other manner\nprovided by law.\n15. Severability\n15.1 If any provision of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in\nfull force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full\nforce and effect in all other circumstances.\n16. Waiver\n16.1 No waiver by either party of any breach or violation of any provision of this Agreement shall operate or be construed as a waiver of any\nsubsequent breach or violation hereof.\n17. Headings\n17.1 The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of\nthis Agreement.\n18. Survival\n18.1 The provisions of Sections 4., 6., 7., 9., 10., 11., 12., 13., 14., 15., 16., and 19., herein shall survive the termination of this Agreement.\n6\n19. Amendments\n19.1 This Agreement may not be amended, nor shall any waiver, change, modification, consent or discharge hereof be affected except by an\ninstrument in writing executed by or on behalf of the party against whom enforcement of any such amendment, waiver, change, modification,\nconsent or discharge is sought.\nThe parties have signed this Agreement the day and year first above written.\nEmployee: Danna Rabin\nComverse, Inc.\n/s/ Danna Rabin\nBy: /s/ Rebecca L. Smith\nEmployee Signature\nEmployee Print: Danna Rabin\nRebecca L. Smith\n10/26/2009\n10/27/2009\nDate\nDate\n7	EX-10.127 4 dex10127.htm EMPLOYMENT, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT\nExhibit 10.127\nEMPLOYMENT, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT\nAGREEMENT entered into this 11 day of September 2009 (start date) by and between Comverse, Inc., a Delaware Corporation, on\nbehalf of itself and its subsidiaries (the “Company”) and Danna Rabin “Employee”.\nWHEREAS, the Employee has agreed to be employed by the Company, and\nWHEREAS, the parties desire to provide for the terms of Employee’s services to the Company,\nNOW, THEREFORE, in consideration of Employee’s employment by the Company, the compensation received by Employee from time\nto time hereunder, and the mutual covenants contained herein, the parties agree as follows:\n1. Duties\n1.1 The Company hereby hires Danna Rabin as an at-will employee for the position of Vice President of Professional Services Sales for a\nperiod commencing on the date of this Agreement and terminating in accordance with the provisions of Section 3 of this Agreement. Employee shall\ndevote essentially his/her full time and best efforts to the advancement of the interests of the Company, and shall perform such duties as may be\nprescribed from time to time by an Officer of the Company. For the purposes of this Section, “full time” shall be defined as at least forty (40) hours\nper week.\n2. Compensation\n2.1 In consideration of the services to be performed under this Agreement, Employee shall receive as gross compensation the sum of $6,923.07\n(bi-weekly) subject to withholding and other applicable taxes. At least once during each year of employment, an Officer of the Company shall\nreview the performance of Employee and shall make such adjustments to his/her gross compensation as deemed appropriate by the Company. The\nEmployee shall also be entitled to participate in benefit programs the Company establishes and makes generally available to all employees of the\nCompany, to the extent the employee is eligible to participate based on tenure, age, pay, health and other eligibility requirements.\n3. Termination\n3.1 Employment under this Agreement may be terminated immediately by the Company at any time for cause. “Cause” shall, for the purpose\nof this Section, be defined as a good faith finding by the Company of a material violation of any of the provisions of this Agreement or some other\nmaterial breach of duty owed by Employee to the Company, violation of a Company policy or procedure, fraud or dishonesty, theft of Company\nassets, gross negligence or misconduct, or the conviction or plea of nolo contendere! to a felony or crime of moral turpitude2. Employee may also be\nterminated without cause as follows: (1) if Employee is on international assignment and is terminated with an effective termination date prior to the\nend date of the international assignment period, Employee is entitled to three months’ advance notice of termination or, at the Company’s election,\npayment in lieu of notice of Employee’s then current gross compensation (plus accrued bonus and commission if applicable) for a three month\nperiod;\nor (2) if Employee is terminated with an effective termination date after the end date of the international assignment period, Employee is entitled to\ntwo weeks’ advance notice of termination or, at the Company’s election, payment in lieu of notice of Employee’s then current gross compensation\n(plus accrued bonus and commission if applicable) for a two week period.\n1 Nolo Contendere is a plea entered by a defendant in a criminal case where a defendant neither admits nor denies guilt, but the criminal court\ncan impose a fine or a prison sentence. The main difference between a plea of nolo contendere and a guilty plea is that a nolo contendere plea\ncan not be used against a defendant in a civil action for the same acts, where as a guilty plea can be so used.\n2 Crimes of moral turpitude are crimes that are morally bad, contrary to what is accepted and customary in society.\n4, Disclosure and Surrender of Confidential Information\n4.1 Employee expressly acknowledges that he/she has received and will continue to receive “Confidential Information” pertaining to the\nproducts, services, operations and/or business affairs of the Company. For the purposes of this Agreement, “Confidential Information” shall include,\nbut not be limited to, information concerning or related to the Company’s financial matters, business methods and practices, the Company’s\nproprietary computer software, firmware, hardware, documentation, scientific, technical, economic, or engineering information including patterns,\nplans, compilations, program devices, formulae, designs, prototypes, methods, techniques, processes, procedures, programs or codes, whether\ntangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically or photographically (including,\nwithout limiting the generality of the foregoing, any such items created, developed, produced or made known to Employee during the period of or\narising out of Employee’s employment with the Company), the Company’s suppliers, customers and potential customers, confidential information\ndisclosed to the Company by a third party, the Company’s sales and marketing plans, and any other information not generally known to the public\nwhich, if misused or disclosed, could have a reasonable possibility of adversely affecting the Company’s business or financial condition.\n4.2 In recognition of the fact that such Confidential Information contains valuable trade secrets of the Company, Employee agrees that he/she\nshall not, during the term of this Agreement and thereafter, use or disclose to any third party any such Confidential Information for any reason or\npurpose whatsoever without the express written consent of the Company. Employee understands that, pursuant to the Economic Espionage Act,\nviolation of this Section 4.2 could result in a fine, imprisonment or both.\n4.3 Employee hereby assigns to the Company any and all rights, title and interest that Employee now has in the Company’s Confidential\nInformation and agrees to assign to the Company any and all rights, title and interest that Employee may hereafter acquire in the Company’s\nConfidential Information.\n4.4 Upon termination of his/her employment with the Company, for whatever reason, Employee will promptly surrender to the Company all\ncopies, in whatever form, of the Company’s Confidential Information in Employee’s possession or control, and Employee will not remove or\ntransmit by any means from the Company or take with him/her any of the Company’s Confidential Information that is embodied in any tangible\nmedium of expression.\n5. Confidentiality of Previous Employers/Clients\n5.1 Employee represents that his/her performance hereunder does not and will not breach any agreement to keep in confidence any proprietary\ninformation acquired by Employee in confidence or in trust of a present or former employer or client. Employee also understands that at no time\nduring his/her employment with the Company is Employee to breach any obligation of confidentiality that Employee has to present or former\nemployers or clients, and Employee agrees to fulfill all such obligations during his/her employment with the Company. Employee agrees that he/she\nshall not disclose to the Company any proprietary information of a third party without written permission from the third party. Employee understands\nthat, pursuant to the Economic Espionage Act, violation of this Section could result in a fine, imprisonment or both.\n6. Disclosure of Inventions\n6.1 For the purposes of this Agreement, “Inventions” shall have the same meaning as set forth in 35 U.S.C. §§ 100 and 101, and may include\nwithout limitation, any of the following as applicable: all discoveries, developments, designs, improvements, inventions, formulae, processes,\ntechniques, computer programs, strategies, specific computer-related or telecommunications-related know-how and data.\n6.2 During Employee’s employment by the Company and for a period of six (6) months thereafter, Employee will promptly and fully disclose\nto the Company (and to any persons designated by it) any and all Inventions generated or conceived or reduced to practice or learned by Employee,\neither alone or jointly with others, which result from or relate to tasks assigned by the Company to Employee, or which result from or relate to tasks,\nprojects or products being conducted or made within the Company about which Employee has obtained substantial knowledge during his/her\nemployment with the Company.\n7. Ownership Rights and Assignment of Inventions\n7.1 Employee and the Company hereby agree that, to the extent the United States copyright laws or the laws of any jurisdiction bound to\nrecognize rights of copyright, author’s rights or any similar other rights so permit, all services rendered by Employee hereunder, and the work\nproduct resulting from same, are and shall be deemed to be performed by Employee as work for hire or works made for hire for the Company, and\nare and shall be the sole and exclusive property of the Company. To the extent such laws or any rule of law does not so permit, then Employee\nexpressly agrees to assign to the Company any and all rights, title and interest which Employee has or hereafter acquires in such services and work\nproduct, including without limitation, any and all rights to copyrights, trademarks and trade secrets thereto.\n7.2 Employee agrees that all Inventions generated or conceived or reduced to practice or learned by Employee, either alone or jointly with\nothers, during the following time periods: (a) during Employee’s employment by the Company and (b) for a period of six (6) months thereafter, shall\nbe the sole property of the Company and its assigns, and the Company and its assigns shall be the sole owner of all patent applications and all patents\nissued in connection therewith, provided however, that such Inventions in any way result from or relate to tasks assigned to the Employee during\nhis/her employment at the Company, or which result from or relate to tasks, projects or products being conducted or made within the Company about\nwhich Employee obtained substantial knowledge during his/her employment\n3\nat the Company. Employee hereby assigns to the Company any and all rights, title and interest which Employee has in such Inventions, and agrees to\nassign to the Company any and all rights, title and interest which Employee may hereafter acquire in such Inventions.\n7.3 With respect to all such Inventions described in Section 6.2 and Section 7.2 above, Employee further agrees to assist the Company in every\nproper way (but at the Company’s expense) to apply for, prosecute, obtain, defend and enforce patents, and other proprietary rights and protections\nrelating to said Inventions in any and all countries, including but not limited to, as the Company may elect: (a) taking all lawful oaths and doing all\nlawful acts, including giving testimony, and (b) executing all documents, including, but not limited to, all applications, powers, assignments and\nother papers deemed by the Company or persons designated by it to be necessary or advisable.\n7.4 Employee’s obligations as set forth in Section 6.2 and Section 7.3 above shall continue beyond the termination of his/her employment by\nthe Company, but the Company shall compensate Employee at a reasonable rate after Employee’s termination for time actually spent by Employee\non such assistance. In the event the Company is unable, after reasonable effort, to secure Employee’s signature on any document or documents\nneeded to apply for, prosecute, obtain, defend or enforce any patent, copyright, trademark, trade secret, or other proprietary right or protection\nrelating to an Invention described in Sections 6 and 7 above, whether because of Employee’s physical or mental incapacity or for any other reason\nwhatsoever, Employee hereby irrevocably designates and appoints the Company and its duly authorized Officers and agents as Employee’s agent\ncoupled with an interest and attorney-in-fact, to act for and in Employee’s behalf and stead to execute and file any such documents and to do all\nother lawfully permitted acts to further the Company’s rights hereunder with the same legal force and effect as if executed by Employee.\n8. Previous Inventions\n8.1 As a matter of record Employee has identified below and in an attachment hereto (as required), all Inventions generated or conceived or\nreduced to practice or learned by Employee, either alone or jointly with others, prior to his/her employment by the Company, which Employee\ndesires to remove from the operation of this Agreement. Employee represents and warrants that such list is complete. If there is no such information\nlisted, Employee represents that he/she made no such Inventions at the time of signing this Agreement.\nThe following is a complete list of all Inventions relative to the subject matter of my service as an employee of the Company that have\nbeen generated or conceived or first reduced to practice or learned by me, alone or jointly with others, prior to my employment by the Company:\n[X] No Inventions\n[ 1] See Below:\n[ 1] Additional sheets attached\n9. Restrictive Covenant\n9.1 For and in consideration of the compensation to be paid by the Company pursuant to the terms hereof, and in recognition of the fact that\nEmployee will have access to Confidential Information and other valuable rights of the Company, Employee covenants and agrees that he/she will\nnot, at any time during his/her employment with the Company, and for a period of six (6) months thereafter, directly or indirectly, engage in any\nbusiness or in any activity related to the development, sale, production, manufacturing, marketing or distribution of products or services which are in\ncompetition with products or services which the Company or any of its subsidiaries produces, sells, manufactures, markets, distributes or has interest\nin, in any state or foreign country in which the Company or any of its subsidiaries then conducts business or reasonably has plans to conduct\nbusiness. It is not the intent of this covenant to bar Employee from employment in any company whose general business is the manufacture of\ncommunications equipment or delivery of communications services, only to limit specific and direct competition with the Company. Employee\nfurther agrees that during his/her employment by the Company and for a period of (12) months thereafter, Employee shall not, directly or indirectly,\ninduce, attempt to induce, or aid others in inducing, a salaried employee of the Company to accept employment or affiliation with another firm or\ncorporation engaging in such business or activity of which Employee is an employee, owner, partner or consultant.\n9.2 The Company and Employee agree that the duration and geographic scope of this Restrictive Covenant provision, set forth in this\nSection 9., are reasonable. In the event that any court of competent jurisdiction determines that the duration or the geographic scope, or both, are\nunreasonable and that such provision is to that extent unenforceable, the Company and Employee hereto agree that the provision shall remain in full\nforce and effect for the greatest time period and in the greatest area that would not render it unenforceable. The Company and Employee intend that\nthis provision shall be deemed to be a series of separate covenants, one for each and every county of each and every state of the United States of\nAmerica and each and every political subdivision of each and every country outside the United States of America where this provision is intended to\nbe effective.\n9.3 Notwithstanding the foregoing, nothing contained in this Agreement shall prevent Employee from being an investor in securities of a\ncompetitor listed on a national securities exchange or actively traded over-the-counter so long as such investments are in amounts not significant as\ncompared to his/her total investments or to the aggregate of the outstanding securities of the issuer of the same class or issue of the specific securities\ninvolved.\n10. Damages - Injunctive Relief\n10.1 In the event of a breach or threatened breach by Employee of any of the provisions of this Agreement, the Company shall be entitled to\ntemporary and/or permanent injunctions in order to prevent or restrain any such breach by Employee or by Employee’s partners, agents,\nrepresentatives, servants, employers and employees. Said remedies shall be in addition to, and not in limitation of, any other rights or remedies to\nwhich the Company is or may be entitled at law, in equity, or under this Agreement.\n11. Assignment\n11.1 Employee acknowledges that the services to be rendered by him/her are unique and personal. Accordingly, Employee may not assign any\nof his/her rights or delegate any of his/her duties or\nobligations under this Agreement. In the event that the Company shall be merged with, or consolidated into, any other corporation or entity, or in the\nevent that the Company shall sell or transfer substantially all of its assets to another corporation or entity, the terms of this Agreement shall inure to\nthe benefit of, and be assumed by, such corporation or entity.\n12. Notices\n12.1 Any notice required or desired to be given under this Agreement shall be deemed given if in writing sent by certified mail, to his/her\nresidence in the case of Employee, or to its principal office in the case of the Company.\n13. Applicable Law\n13.1 This Agreement has been made in and shall be governed by the laws of the Commonwealth of Massachusetts.\n14. Massachusetts Courts\n14.1 Any action to enforce, arising out of, or relating in any way to, any of the provisions of this Agreement may be brought and prosecuted in\nsuch court or courts located in the Commonwealth of Massachusetts as is provided by law; and the parties consent to the jurisdiction of said court or\ncourts located in the Commonwealth of Massachusetts and to service of process by registered mail, return receipt requested, or by any other manner\nprovided by law.\n15. Severability\n15.1 If any provision of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in\nfull force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full\nforce and effect in all other circumstances.\n16. Waiver\n16.1 No waiver by either party of any breach or violation of any provision of this Agreement shall operate or be construed as a waiver of any\nsubsequent breach or violation hereof.\n17. Headings\n17.1 The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of\nthis Agreement.\n18. Survival\n18.1 The provisions of Sections 4., 6., 7., 9., 10., 11, 12., 13, 14., 15., 16., and 19., herein shall survive the termination of this Agreement.\n6\n19. Amendments\n19.1 This Agreement may not be amended, nor shall any waiver, change, modification, consent or discharge hereof be affected except by an\ninstrument in writing executed by or on behalf of the party against whom enforcement of any such amendment, waiver, change, modification,\nconsent or discharge is sought.\nThe parties have signed this Agreement the day and year first above written.\nEmployee: Danna Rabin Comverse, Inc.\n/s/ Danna Rabin By:  /s/Rebecca L. Smith\nEmployee Signature\nEmployee Print: Danna Rabin Rebecca L. Smith\n10/26/2009 10/27/2009\nDate Date	EX-10.127 4 dex x10127.htm EMPLOYMENT, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT\nExhibit 10.127\nEMPLOYMENT, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT\nAGREEMENT entered into this 11 day of September 2009 (start date) by and between Comverse, Inc., a Delaware Corporation, on\nbehalf of itself and its subsidiaries (the "Company") and Danna Rabin "Employee".\nWHEREAS, the Employee has agreed to be employed by the Company, and\nWHEREAS, the parties desire to provide for the terms of Employee's services to the Company,\nNOW, THEREFORE, in consideration of Employee's employment by the Company, the compensation received by Employee from time\nto time hereunder, and the mutual covenants contained herein, the parties agree as follows:\n1. Duties\n1.1 The Company hereby hires Danna Rabin as an at-will employee for the position of Vice President of Professional Services Sales for a\nperiod\ncommencing on the date of this Agreement and terminating in accordance with the provisions of Section 3 of this Agreement. Employee\nshall\ndevote essentially his/her full time and best efforts to the advancement of the interests of the Company, and shall perform such duties as may be\nprescribed from time to time by an Officer of the Company. For the purposes of this Section, "full time" shall be defined as at least forty (40) hours\nper week.\n2. Compensation\n2.1 In consideration of the services to be performed under this Agreement Employee shall receive as gross compensation the sum of $6,923.07\n(bi-weekly) subject to withholding and other applicable taxes. At least once during each year of employment, an Officer of the Company shall\nreview\nthe\nperformance\nof\nEmployee\nand\nshall\nmake\nsuch\nadjustments\nto\nhis/her\ngross\ncompensation\nas\ndeemed\nappropriate\nby\nthe\nCompany.\nThe\nEmployee shall also be entitled to participate in benefit programs the Company establishes and makes generally available to all employees of the\nCompany, to the extent the employee is eligible to participate based on tenure, age, pay, health and other eligibility requirements.\n3. Termination\n3.1 Employment under this Agreement may be terminated immediately by the Company at any time for cause. "Cause" shall, for the purpose\nof this Section, be defined as a good faith finding by the Company of a material violation of any of the provisions of this Agreement or some other\nmaterial breach of duty owed by Employee to the Company, violation of a Company policy or procedure, fraud or dishonesty, theft of Company\nassets, gross negligence or misconduct, or the conviction or plea of nolo contendere to a felony or crime of moral turpitude2. Employee may also be\nterminated without cause as follows: (1) if Employee is on international assignment and is terminated with an effective termination date prior to the\nend date of the international assignment period, Employee is entitled to three months' advance notice of termination or, at the Company's election,\npayment in lieu of notice of Employee's then current gross compensation (plus accrued bonus and commission if applicable) for a three month\nperiod;\nor (2) if Employee is terminated with an effective termination date after the end date of the international assignment period, Employee is entitled to\ntwo weeks' advance notice of termination or, at the Company's election, payment in lieu of notice of Employee's then current gross compensation\n(plus accrued bonus and commission if applicable) for a two week period.\n1 Nolo Contendere is a plea entered by a defendant in a criminal case where a defendant neither admits nor denies guilt, but the criminal court\ncan impose a fine or a prison sentence. The main difference between a plea of nolo contendere and a guilty plea is that a nolo contendere\nplea\ncan not be used against a defendant in a civil action for the same acts, where as a guilty plea can be so used.\n2 Crimes of moral turpitude are crimes that are morally bad, contrary to what is accepted and customary in society.\n4.\nDisclosure and Surrender of Confidential Information\n4.1 Employee expressly acknowledges that he/she has received and will continue to receive "Confidential Information" pertaining to the\nproducts, services, operations and/or business affairs of the Company. For the purposes of this Agreement, "Confidential Information" shall include,\nbut not be limited to, information concerning or related to the Company's financial matters, business methods and practices, the Company's\nproprietary\ncomputer software, firmware, hardware, documentation, scientific, technical, economic, or engineering information including patterns,\nplans, compilations, program devices, formulae, designs, prototypes, methods, techniques, processes, procedures, programs or codes, whether\ntangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically or photographically (including,\nwithout limiting the generality of the foregoing, any such items created, developed, produced or made known to Employee during the period of or\narising out of Employee's employment with the Company), the Company's suppliers, customers and potential customers, confidential information\ndisclosed to the Company by a third party, the Company's sales and marketing plans, and any other information not generally known to the public\nwhich, if misused or disclosed, could have a reasonable possibility of adversely affecting the Company's business or financial condition.\n4.2 In recognition of the fact that such Confidential Information contains valuable trade secrets of the Company, Employee agrees that he/she\nshall not, during the term of this Agreement and thereafter, use or disclose to any third party any such Confidential Information for any reason or\npurpose whatsoever without the express written consent of the Company. Employee understands that, pursuant to the Economic Espionage Act,\nviolation of this Section 4.2 could result in a fine, imprisonment or both.\n4.3 Employee hereby assigns to the Company any and all rights, title and interest that Employee now has in the Company's Confidential\nInformation and agrees to assign to the Company any and all rights, title and interest that Employee may hereafter acquire in the Company's\nConfidential Information.\n4.4 Upon termination of his/her employment with the Company, for whatever reason, Employee will promptly surrender to the Company all\ncopies, in whatever form, of the Company's Confidential Information in Employee's possession or control, and Employee will not remove or\ntransmit by any means from the Company or take with him/her any of the Company's Confidential Information that is embodied in any tangible\nmedium of expression.\n2\n5.\nConfidentiality of Previous Employers/Clients\n5.1 Employee represents that his/her performance hereunder does not and will not breach any agreement to keep in confidence any proprietary\ninformation acquired by Employee in confidence or in trust of a present or former employer or client. Employee also understands that at no time\nduring his/her employment with the Company is Employee to breach any obligation of confidentiality that Employee has to present or former\nemployers or clients, and Employee agrees to fulfill all such obligations during his/her employment with the Company. Employee agrees that he/she\nshall not disclose to the Company any proprietary information of a third party without written permission from the third party. Employee understands\nthat, pursuant to the Economic Espionage Act, violation of this Section could result in a fine, imprisonment or both.\n6.\nDisclosure of Inventions\n6.1 For the purposes of this Agreement, "Inventions" shall have the same meaning as set forth in 35 U.S.C. 88 100 and 101, and may include\nwithout limitation, any of the following as applicable: all discoveries, developments, designs, improvements, inventions, formulae, processes,\ntechniques, computer programs, strategies, specific computer-related or telecommunications-related know-how and data.\n6.2 During Employee's employment by the Company and for a period of six (6) months thereafter, Employee will promptly and fully disclose\nto the Company (and to any persons designated by it) any and all Inventions generated or conceived or reduced to practice or learned by Employee,\neither alone or jointly with others, which result from or relate to tasks assigned by the Company to Employee, or which result from or relate to tasks,\nprojects or products being conducted or made within the Company about which Employee has obtained substantial knowledge during his/her\nemployment with the Company.\n7.\nOwnership Rights and Assignment of Inventions\n7.1 Employee and the Company hereby agree that, to the extent the United States copyright laws or the laws of any jurisdiction bound to\nrecognize rights of copyright, author's rights or any similar other rights so permit, all services rendered by Employee hereunder, and the work\nproduct resulting from same, are and shall be deemed to be performed by Employee as work for hire or works made for hire for the Company, and\nare and shall be the sole and exclusive property of the Company. To the extent such laws or any rule of law does not SO permit, then Employee\nexpressly agrees to assign to the Company any and all rights, title and interest which Employee has or hereafter acquires in such services and work\nproduct, including without limitation, any and all rights to copyrights, trademarks and trade secrets thereto.\n7.2 Employee agrees that all Inventions generated or conceived or reduced to practice or learned by Employee, either alone or jointly with\nothers, during the following time periods: (a) during Employee's employment by the Company and (b) for a period of six (6) months thereafter, shall\nbe the sole property of the Company and its assigns, and the Company and its assigns shall be the sole owner of all patent applications and all patents\nissued in connection therewith, provided however, that such Inventions in any way result from or relate to tasks assigned to the Employee during\nhis/her employment at the Company, or which result from or relate to tasks, projects or products being conducted or made within the Company about\nwhich Employee obtained substantial knowledge during his/her employment\n3\nat the Company. Employee hereby assigns to the Company any and all rights, title and interest which Employee has in such Inventions, and agrees to\nassign to the Company any and all rights, title and interest which Employee may hereafter acquire in such Inventions.\n7.3 With respect to all such Inventions described in Section 6.2 and Section 7.2 above, Employee further agrees to assist the Company in every\nproper way (but at the Company's expense) to apply for, prosecute, obtain, defend and enforce patents, and other proprietary rights and protections\nrelating\nto\nsaid\nInventions\nin\nany\nand\nall\ncountries,\nincluding\nbut\nnot\nlimited\nto,\nas\nthe\nCompany\nmay\nelect:\n(a)\ntaking\nall\nlawful\noaths\nand\ndoing\nall\nlawful acts, including giving testimony, and (b) executing all documents, including, but not limited to, all applications, powers, assignments and\nother papers deemed by the Company or persons designated by it to be necessary or advisable.\n7.4 Employee's obligations as set forth in Section 6.2 and Section 7.3 above shall continue beyond the termination of his/her employment by\nthe Company, but the Company shall compensate Employee at a reasonable rate after Employee's termination for time actually spent by Employee\non\nsuch assistance. In the event the Company is unable, after reasonable effort, to secure Employee's signature on any document or documents\nneeded to apply for, prosecute, obtain, defend or enforce any patent, copyright, trademark, trade secret, or other proprietary right or protection\nrelating to an Invention described in Sections 6 and 7 above, whether because of Employee's physical or mental incapacity or for any other reason\nwhatsoever, Employee hereby irrevocably designates and appoints the Company and its duly authorized Officers and agents as Employee's agent\ncoupled with an interest and attorney-in-fact, to act for and in Employee's behalf and stead to execute and file any such documents and to do all\nother lawfully permitted acts to further the Company's rights hereunder with the same legal force and effect as if executed by Employee.\n8.\nPrevious Inventions\n8.1 As a matter of record Employee has identified below and in an attachment hereto (as required), all Inventions generated or conceived or\nreduced to practice or learned by Employee, either alone or jointly with others, prior to his/her employment by the Company, which Employee\ndesires to remove from the operation of this Agreement. Employee represents and warrants that such list is complete. If there is no such information\nlisted, Employee represents that he/she made no such Inventions at the time of signing this Agreement.\nThe following is a complete list of all Inventions relative to the subject matter of my service as an employee of the Company that have\nbeen generated or conceived or first reduced to practice or learned by me, alone or jointly with others, prior to my employment by the Company:\n[X]\nNo Inventions\n[\n]\nSee Below:\n[\n1\nAdditional sheets attached\n4\n9.\nRestrictive Covenant\n9.1 For and in consideration of the compensation to be paid by the Company pursuant to the terms hereof, and in recognition of the fact that\nEmployee will have access to Confidential Information and other valuable rights of the Company, Employee covenants and agrees that he/she will\nnot, at any time during his/her employment with the Company, and for a period of six (6) months thereafter, directly or indirectly, engage in any\nbusiness\nor\nin\nany activity related to the development, sale, production, manufacturing, marketing or distribution of products or services which are\nin\ncompetition with products or services which the Company or any of its subsidiaries produces, sells, manufactures, markets, distributes or has interest\nin, in any state or foreign country in which the Company or any of its subsidiaries then conducts business or reasonably has plans to conduct\nbusiness.\nIt\nis not the intent of this covenant to bar Employee from employment in any company whose general business is the manufacture\nof\ncommunications equipment or delivery of communications services, only to limit specific and direct competition with the Company. Employee\nfurther agrees that during his/her employment by the Company and for a period of (12) months thereafter, Employee shall not, directly or indirectly,\ninduce, attempt to induce, or aid others in inducing, a salaried employee of the Company to accept employment or affiliation with another firm or\ncorporation engaging in such business or activity of which Employee is an employee, owner, partner or consultant.\n9.2 The Company and Employee agree that the duration and geographic scope of this Restrictive Covenant provision, set forth in this\nSection 9., are reasonable. In the event that any court of competent jurisdiction determines that the duration or the geographic scope, or both, are\nunreasonable and that such provision is to that extent unenforceable, the Company and Employee hereto agree that the provision shall remain in full\nforce and effect for the greatest time period and in the greatest area that would not render it unenforceable. The Company and Employee intend that\nthis provision shall be deemed to be a series of separate covenants, one for each and every county of each and every state of the United States\nof\nAmerica and each and every political subdivision of each and every country outside the United States of America where this provision is intended to\nbe effective.\n9.3 Notwithstanding the foregoing, nothing contained in this Agreement shall prevent Employee from being an investor in securities of a\ncompetitor listed on a national securities exchange or actively traded over-the-counter so long as such investments are in amounts not significant as\ncompared to his/her total investments or to the aggregate of the outstanding securities of the issuer of the same class or issue of the specific securities\ninvolved.\n10. Damages Injunctive Relief\n10.1 In the event of a breach or threatened breach by Employee of any of the provisions of this Agreement, the Company shall be entitled to\ntemporary and/or permanent injunctions in order to prevent or restrain any such breach by Employee or by Employee's partners, agents,\nrepresentatives, servants, employers and employees. Said remedies shall be in addition to, and not in limitation of, any other rights or remedies\nto\nwhich the Company is or may be entitled at law, in equity, or under this Agreement.\n11. Assignment\n11.1 Employee acknowledges that the services to be rendered by him/her are unique and personal. Accordingly, Employee may not assign any\nof his/her rights or delegate any of his/her duties or\n5\nobligations under this Agreement. In the event that the Company shall be merged with, or consolidated into, any other corporation or entity, or in the\nevent that the Company shall sell or transfer substantially all of its assets to another corporation or entity, the terms of this Agreement shall inure\nto\nthe benefit of, and be assumed by, such corporation or entity.\n12. Notices\n12.1 Any notice required or desired to be given under this Agreement shall be deemed given if in writing sent by certified mail, to his/her\nresidence in the case of Employee, or to its principal office in the case of the Company.\n13. Applicable Law\n13.1 This Agreement has been made in and shall be governed by the laws of the Commonwealth of Massachusetts.\n14. Massachusetts Courts\n14.1 Any action to enforce, arising out of, or relating in any way to, any of the provisions of this Agreement may be brought and prosecuted in\nsuch court or courts located in the Commonwealth of Massachusetts as is provided by law; and the parties consent to the jurisdiction of said court or\ncourts located in the Commonwealth of Massachusetts and to service of process by registered mail, return receipt requested, or by any other manner\nprovided by law.\n15. Severability.\n15.1 If any provision of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in\nfull force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full\nforce and effect in all other circumstances.\n16. Waiver\n16.1 No waiver by either party of any breach or violation of any provision of this Agreement shall operate or be construed as a waiver of any\nsubsequent breach or violation hereof.\n17. Headings\n17.1 The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of\nthis Agreement.\n18. Survival\n18.1 The provisions of Sections 4., 6., 7., 9., 10., 11., 12., 13., 14., 15., 16., and 19., herein shall survive the termination of this Agreement.\n6\n19. Amendments\n19.1 This Agreement may not be amended, nor shall any waiver, change, modification, consent or discharge hereof be affected except by an\ninstrument in writing executed by or on behalf of the party against whom enforcement of any such amendment, waiver, change, modification,\nconsent or discharge is sought.\nThe parties have signed this Agreement the day and year first above written.\nEmployee: Danna Rabin\nComverse, Inc.\n/s/ Danna Rabin\nBy:\n/s/ Rebecca L. Smith\nEmployee Signature\nEmployee Print: Danna Rabin\nRebecca L. Smith\n10/26/2009\n10/27/2009\nDate\nDate\n7	EX-10.127 4 dex10127.htm EMPLOYMENT, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT\nExhibit 10.127\nEMPLOYMENT, NON-DISCLOSURE AND NON-COMPETITION AGREEMENT\nAGREEMENT entered into this 11 day of September 2009 (start date) by and between Comverse, Inc., a Delaware Corporation, on\nbehalf of itself and its subsidiaries (the “Company”) and Danna Rabin “Employee”.\nWHEREAS, the Employee has agreed to be employed by the Company, and\nWHEREAS, the parties desire to provide for the terms of Employee’s services to the Company,\nNOW, THEREFORE, in consideration of Employee’s employment by the Company, the compensation received by Employee from time\nto time hereunder, and the mutual covenants contained herein, the parties agree as follows:\n1. Duties\n1.1 The Company hereby hires Danna Rabin as an at-will employee for the position of Vice President of Professional Services Sales for a\nperiod commencing on the date of this Agreement and terminating in accordance with the provisions of Section 3 of this Agreement. Employee shall\ndevote essentially his/her full time and best efforts to the advancement of the interests of the Company, and shall perform such duties as may be\nprescribed from time to time by an Officer of the Company. For the purposes of this Section, “full time” shall be defined as at least forty (40) hours\nper week.\n2. Compensation\n2.1 In consideration of the services to be performed under this Agreement, Employee shall receive as gross compensation the sum of $6,923.07\n(bi-weekly) subject to withholding and other applicable taxes. At least once during each year of employment, an Officer of the Company shall\nreview the performance of Employee and shall make such adjustments to his/her gross compensation as deemed appropriate by the Company. The\nEmployee shall also be entitled to participate in benefit programs the Company establishes and makes generally available to all employees of the\nCompany, to the extent the employee is eligible to participate based on tenure, age, pay, health and other eligibility requirements.\n3. Termination\n3.1 Employment under this Agreement may be terminated immediately by the Company at any time for cause. “Cause” shall, for the purpose\nof this Section, be defined as a good faith finding by the Company of a material violation of any of the provisions of this Agreement or some other\nmaterial breach of duty owed by Employee to the Company, violation of a Company policy or procedure, fraud or dishonesty, theft of Company\nassets, gross negligence or misconduct, or the conviction or plea of nolo contendere to a felony or crime of moral turpitude . Employee may also be\nterminated without cause as follows: (1) if Employee is on international assignment and is terminated with an effective termination date prior to the\nend date of the international assignment period, Employee is entitled to three months’ advance notice of termination or, at the Company’s election,\npayment in lieu of notice of Employee’s then current gross compensation (plus accrued bonus and commission if applicable) for a three month\nperiod;\n1\n2\nor (2) if Employee is terminated with an effective termination date after the end date of the international assignment period, Employee is entitled to\ntwo weeks’ advance notice of termination or, at the Company’s election, payment in lieu of notice of Employee’s then current gross compensation\n(plus accrued bonus and commission if applicable) for a two week period.\nNolo Contendere is a plea entered by a defendant in a criminal case where a defendant neither admits nor denies guilt, but the criminal court\ncan impose a fine or a prison sentence. The main difference between a plea of nolo contendere and a guilty plea is that a nolo contendere plea\ncan not be used against a defendant in a civil action for the same acts, where as a guilty plea can be so used.\nCrimes of moral turpitude are crimes that are morally bad, contrary to what is accepted and customary in society.\n4. Disclosure and Surrender of Confidential Information\n4.1 Employee expressly acknowledges that he/she has received and will continue to receive “Confidential Information” pertaining to the\nproducts, services, operations and/or business affairs of the Company. For the purposes of this Agreement, “Confidential Information” shall include,\nbut not be limited to, information concerning or related to the Company’s financial matters, business methods and practices, the Company’s\nproprietary computer software, firmware, hardware, documentation, scientific, technical, economic, or engineering information including patterns,\nplans, compilations, program devices, formulae, designs, prototypes, methods, techniques, processes, procedures, programs or codes, whether\ntangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically or photographically (including,\nwithout limiting the generality of the foregoing, any such items created, developed, produced or made known to Employee during the period of or\narising out of Employee’s employment with the Company), the Company’s suppliers, customers and potential customers, confidential information\ndisclosed to the Company by a third party, the Company’s sales and marketing plans, and any other information not generally known to the public\nwhich, if misused or disclosed, could have a reasonable possibility of adversely affecting the Company’s business or financial condition.\n4.2 In recognition of the fact that such Confidential Information contains valuable trade secrets of the Company, Employee agrees that he/she\nshall not, during the term of this Agreement and thereafter, use or disclose to any third party any such Confidential Information for any reason or\npurpose whatsoever without the express written consent of the Company. Employee understands that, pursuant to the Economic Espionage Act,\nviolation of this Section 4.2 could result in a fine, imprisonment or both.\n4.3 Employee hereby assigns to the Company any and all rights, title and interest that Employee now has in the Company’s Confidential\nInformation and agrees to assign to the Company any and all rights, title and interest that Employee may hereafter acquire in the Company’s\nConfidential Information.\n4.4 Upon termination of his/her employment with the Company, for whatever reason, Employee will promptly surrender to the Company all\ncopies, in whatever form, of the Company’s Confidential Information in Employee’s possession or control, and Employee will not remove or\ntransmit by any means from the Company or take with him/her any of the Company’s Confidential Information that is embodied in any tangible\nmedium of expression.\n2\n1\n2\n5. Confidentiality of Previous Employers/Clients\n5.1 Employee represents that his/her performance hereunder does not and will not breach any agreement to keep in confidence any proprietary\ninformation acquired by Employee in confidence or in trust of a present or former employer or client. Employee also understands that at no time\nduring his/her employment with the Company is Employee to breach any obligation of confidentiality that Employee has to present or former\nemployers or clients, and Employee agrees to fulfill all such obligations during his/her employment with the Company. Employee agrees that he/she\nshall not disclose to the Company any proprietary information of a third party without written permission from the third party. Employee understands\nthat, pursuant to the Economic Espionage Act, violation of this Section could result in a fine, imprisonment or both.\n6. Disclosure of Inventions\n6.1 For the purposes of this Agreement, “Inventions” shall have the same meaning as set forth in 35 U.S .C. §§ 100 and 101, and may include\nwithout limitation, any of the following as applicable: all discoveries, developments, designs, improvements, inventions, formulae, processes,\ntechniques, computer programs, strategies, specific computer-related or telecommunications-related know-how and data.\n6.2 During Employee’s employment by the Company and for a period of six (6) months thereafter, Employee will promptly and fully disclose\nto the Company (and to any persons designated by it) any and all Inventions generated or conceived or reduced to practice or learned by Employee,\neither alone or jointly with others, which result from or relate to tasks assigned by the Company to Employee, or which result from or relate to tasks,\nprojects or products being conducted or made within the Company about which Employee has obtained substantial knowledge during his/her\nemployment with the Company.\n7. Ownership Rights and Assignment of Inventions\n7.1 Employee and the Company hereby agree that, to the extent the United States copyright laws or the laws of any jurisdiction bound to\nrecognize rights of copyright, author’s rights or any similar other rights so permit, all services rendered by Employee hereunder, and the work\nproduct resulting from same, are and shall be deemed to be performed by Employee as work for hire or works made for hire for the Company, and\nare and shall be the sole and exclusive property of the Company. To the extent such laws or any rule of law does not so permit, then Employee\nexpressly agrees to assign to the Company any and all rights, title and interest which Employee has or hereafter acquires in such services and work\nproduct, including without limitation, any and all rights to copyrights, trademarks and trade secrets thereto.\n7.2 Employee agrees that all Inventions generated or conceived or reduced to practice or learned by Employee, either alone or jointly with\nothers, during the following time periods: (a) during Employee’s employment by the Company and (b) for a period of six (6) months thereafter, shall\nbe the sole property of the Company and its assigns, and the Company and its assigns shall be the sole owner of all patent applications and all patents\nissued in connection therewith, provided however, that such Inventions in any way result from or relate to tasks assigned to the Employee during\nhis/her employment at the Company, or which result from or relate to tasks, projects or products being conducted or made within the Company about\nwhich Employee obtained substantial knowledge during his/her employment\n3\nat the Company. Employee hereby assigns to the Company any and all rights, title and interest which Employee has in such Inventions, and agrees to\nassign to the Company any and all rights, title and interest which Employee may hereafter acquire in such Inventions.\n7.3 With respect to all such Inventions described in Section 6.2 and Section 7.2 above, Employee further agrees to assist the Company in every\nproper way (but at the Company’s expense) to apply for, prosecute, obtain, defend and enforce patents, and other proprietary rights and protections\nrelating to said Inventions in any and all countries, including but not limited to, as the Company may elect: (a) taking all lawful oaths and doing all\nlawful acts, including giving testimony, and (b) executing all documents, including, but not limited to, all applications, powers, assignments and\nother papers deemed by the Company or persons designated by it to be necessary or advisable.\n7.4 Employee’s obligations as set forth in Section 6.2 and Section 7.3 above shall continue beyond the termination of his/her employment by\nthe Company, but the Company shall compensate Employee at a reasonable rate after Employee’s termination for time actually spent by Employee\non such assistance. In the event the Company is unable, after reasonable effort, to secure Employee’s signature on any document or documents\nneeded to apply for, prosecute, obtain, defend or enforce any patent, copyright, trademark, trade secret, or other proprietary right or protection\nrelating to an Invention described in Sections 6 and 7 above, whether because of Employee’s physical or mental incapacity or for any other reason\nwhatsoever, Employee hereby irrevocably designates and appoints the Company and its duly authorized Officers and agents as Employee’s agent\ncoupled with an interest and attorney-in-fact, to act for and in Employee’s behalf and stead to execute and file any such documents and to do all\nother lawfully permitted acts to further the Company’s rights hereunder with the same legal force and effect as if executed by Employee.\n8. Previous Inventions\n8.1 As a matter of record Employee has identified below and in an attachment hereto (as required), all Inventions generated or conceived or\nreduced to practice or learned by Employee, either alone or jointly with others, prior to his/her employment by the Company, which Employee\ndesires to remove from the operation of this Agreement. Employee represents and warrants that such list is complete. If there is no such information\nlisted, Employee represents that he/she made no such Inventions at the time of signing this Agreement.\nThe following is a complete list of all Inventions relative to the subject matter of my service as an employee of the Company that have\nbeen generated or conceived or first reduced to practice or learned by me, alone or jointly with others, prior to my employment by the Company:\n[X]\nNo Inventions\n[]\nSee Below:\n[]\nAdditional sheets attached\n4\n9. Restrictive Covenant\n9.1 For and in consideration of the compensation to be paid by the Company pursuant to the terms hereof, and in recognition of the fact that\nEmployee will have access to Confidential Information and other valuable rights of the Company, Employee covenants and agrees that he/she will\nnot, at any time during his/her employment with the Company, and for a period of six (6) months thereafter, directly or indirectly, engage in any\nbusiness or in any activity related to the development, sale, production, manufacturing, marketing or distribution of products or services which are in\ncompetition with products or services which the Company or any of its subsidiaries produces, sells, manufactures, markets, distributes or has interest\nin, in any state or foreign country in which the Company or any of its subsidiaries then conducts business or reasonably has plans to conduct\nbusiness. It is not the intent of this covenant to bar Employee from employment in any company whose general business is the manufacture of\ncommunications equipment or delivery of communications services, only to limit specific and direct competition with the Company. Employee\nfurther agrees that during his/her employment by the Company and for a period of (12) months thereafter, Employee shall not, directly or indirectly,\ninduce, attempt to induce, or aid others in inducing, a salaried employee of the Company to accept employment or affiliation with another firm or\ncorporation engaging in such business or activity of which Employee is an employee, owner, partner or consultant.\n9.2 The Company and Employee agree that the duration and geographic scope of this Restrictive Covenant provision, set forth in this\nSection 9., are reasonable. In the event that any court of competent jurisdiction determines that the duration or the geographic scope, or both, are\nunreasonable and that such provision is to that extent unenforceable, the Company and Employee hereto agree that the provision shall remain in full\nforce and effect for the greatest time period and in the greatest area that would not render it unenforceable. The Company and Employee intend that\nthis provision shall be deemed to be a series of separate covenants, one for each and every county of each and every state of the United States of\nAmerica and each and every political subdivision of each and every country outside the United States of America where this provision is intended to\nbe effective.\n9.3 Notwithstanding the foregoing, nothing contained in this Agreement shall prevent Employee from being an investor in securities of a\ncompetitor listed on a national securities exchange or actively traded over-the-counter so long as such investments are in amounts not significant as\ncompared to his/her total investments or to the aggregate of the outstanding securities of the issuer of the same class or issue of the specific securities\ninvolved.\n10. Damages - Injunctive Relief\n10.1 In the event of a breach or threatened breach by Employee of any of the provisions of this Agreement, the Company shall be entitled to\ntemporary and/or permanent injunctions in order to prevent or restrain any such breach by Employee or by Employee’s partners, agents,\nrepresentatives, servants, employers and employees. Said remedies shall be in addition to, and not in limitation of, any other rights or remedies to\nwhich the Company is or may be entitled at law, in equity, or under this Agreement.\n11. Assignment\n11.1 Employee acknowledges that the services to be rendered by him/her are unique and personal. Accordingly, Employee may not assign any\nof his/her rights or delegate any of his/her duties or\n5\nobligations under this Agreement. In the event that the Company shall be merged with, or consolidated into, any other corporation or entity, or in the\nevent that the Company shall sell or transfer substantially all of its assets to another corporation or entity, the terms of this Agreement shall inure to\nthe benefit of, and be assumed by, such corporation or entity.\n12. Notices\n12.1 Any notice required or desired to be given under this Agreement shall be deemed given if in writing sent by certified mail, to his/her\nresidence in the case of Employee, or to its principal office in the case of the Company.\n13. Applicable Law\n13.1 This Agreement has been made in and shall be governed by the laws of the Commonwealth of Massachusetts.\n14. Massachusetts Courts\n14.1 Any action to enforce, arising out of, or relating in any way to, any of the provisions of this Agreement may be brought and prosecuted in\nsuch court or courts located in the Commonwealth of Massachusetts as is provided by law; and the parties consent to the jurisdiction of said court or\ncourts located in the Commonwealth of Massachusetts and to service of process by registered mail, return receipt requested, or by any other manner\nprovided by law.\n15. Severability\n15.1 If any provision of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in\nfull force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full\nforce and effect in all other circumstances.\n16. Waiver\n16.1 No waiver by either party of any breach or violation of any provision of this Agreement shall operate or be construed as a waiver of any\nsubsequent breach or violation hereof.\n17. Headings\n17.1 The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of\nthis Agreement.\n18. Survival\n18.1 The provisions of Sections 4., 6., 7., 9., 10., 11., 12., 13., 14., 15., 16., and 19., herein shall survive the termination of this Agreement.\n6\n19. Amendments\n19.1 This Agreement may not be amended, nor shall any waiver, change, modification, consent or discharge hereof be affected except by an\ninstrument in writing executed by or on behalf of the party against whom enforcement of any such amendment, waiver, change, modification,\nconsent or discharge is sought.\nThe parties have signed this Agreement the day and year first above written.\nEmployee: Danna Rabin\nComverse, Inc.\n/s/ Danna Rabin\nBy: /s/ Rebecca L. Smith\nEmployee Signature\nEmployee Print: Danna Rabin\nRebecca L. Smith\n10/26/2009\n10/27/2009\nDate\nDate\n7
+de4cd3cc43680829e1bd7028781612af.pdf	effective_date jurisdiction party term	EX-10.1 2 dex101.htm FORM OF SENIOR VICE PRESIDENT CONFIDENTIALITY\nExhibit 10.1\nPAETEC COMMUNICATIONS, INC.\nSENIOR VICE PRESIDENT CONFIDENTIALITY, NON-SOLICITATION AND\nNON-COMPETITION AGREEMENT\nThis Senior Vice President Confidentiality, Non-Solicitation and Non-Competition Agreement (this “Agreement”) is entered into as of the date\nset forth on the signature page hereto between PAETEC Communications, Inc., a Delaware corporation, including any subsidiary, successor or\naffiliate of the Company with which I work (collectively, the “Company”), and\n(“I” or “me”)).\nWHEREAS, the Company now has and expects to develop confidential and proprietary materials and highly sensitive information of\nimmeasurable value, which I recognize must be carefully protected as set forth below for the Company to be successful;\nNOW, THEREFORE, to induce the Company to employ me and in consideration of my employment or continued employment by the\nCompany and other good and valuable consideration the sufficiency of which I expressly acknowledge, the Company and I hereby agree, intending\nto be legally bound, as follows:\n1. Company Confidential Materials and Information\nThe following materials and information, whether having existed, now existing, or to be developed or created during the term of my\nemployment by Company (herein referred to collectively as the “Company Confidential Information”) are covered by this Senior Vice President\nConfidentiality, Non-Solicitation and Non-Competition Agreement (“Agreement”):\n1.1. Products and Services. All information to which the Company gave me access, all information disclosed to me by the Company, and all\ninformation developed for the Company by me, alone or with others, that directly or indirectly relates to the business, products and/or services that\nthe Company engages in, plans to engage in or contemplates engaging in, including but not limited to research, development, manufacture, sale\nand/or licensing of products and services related to communications, integrated communications, long-distance services, Internet access,\neCommerce, hardware and software (whether owned or licensed by the Company), and data services, including but not limited to local, domestic,\nand international long-distance services, local exchange services, wholesale long-distance services, IP/ISP services, high-speed Internet access, DSL\nservices, eCommerce, web hosting, ASP services, data networking, systems integration services, and data communications services and other\nproprietary products or services, whether existing or in any stage of research and development (such as trade secrets, inventions, ideas, methods,\ntechnical and laboratory data, engineering data and information, engineering information related to the integration of communications devices and\nequipment, benchmark test results, processes, design specifications, algorithms, technical data, technical formulas, engineering data, processes,\nmanufacturing data, procedures, techniques, methodologies, information processing processes, and strategies).\n1.2. Business and Marketing Procedures and Customer Information. All information concerning or relating to the way Company conducts its\nbusiness, markets\nits products and services, and all information relating to any Company customers and sales agents or prospective customers and sales agents (such as\ninternal business procedures, business strategies, marketing plans and strategies, controls, plans, licensing techniques and practices, supplier,\nsubcontractor and prime contractor names and contracts and other vendor information, customer information and requirements, sales agent\ninformation, computer system passwords and other computer security controls, financial information, distributor information, information supplied\nby clients and customers of Company and employee data).\n1.3. Not Generally Known. Any information in addition to the foregoing which is not generally known to the public or within the industry or\ntrade areas in which Company competes, through no fault of mine, which gives the Company any advantage over its competitors.\n1.4. Third-Party Information. Any information that is confidential and proprietary to a third party that the Company has and in the future will\nreceive from such third party subject to the Company’s duty to maintain the confidentiality of such information and to use it for certain limited\npurposes.\n1.5. All Physical Embodiments of Products, Services, Business, Marketing, Customer and Other Information. All the physical embodiments of\nall of the information included in Sections 1.1, 1.2, 1.3 and 1.4 above, including but not limited to research programs, research data, testing data,\nsoftware, compositions, compounds, hardware, works of authorship, source code, other computer code, correspondence, check lists, samples, forms,\nledgers, financial data, financial statements, financial reports, forecasts and projections, discounts, margins, costs, credit terms, pricing practices,\npricing policies and procedures, goals and objectives, quoting practices, quoting procedures and policies, financial and operational analyses and\nstudies, management reports of every kind, databases, employment records pertaining to employees other than myself, customer data including\ncustomer lists, contracts, representatives, requirements and needs, specifications, data provided by or about prospective, existing or past customers\nand contract terms applicable to such customers, engineering notebooks, notes, drawings, work sheets, schematics, load modules, schematics,\nannotations, flow charts, logic diagrams, procedural diagrams, coding sheets, requirements, proposals, instructor manuals, course materials, video\ncassettes, transparencies, slides, presentations, proposals, printouts, studies, contracts, maintenance manuals, operational manuals, documentation,\nlicense agreements, marketing practices, marketing policies and procedures, marketing plans and strategies, marketing reports, strategic business\nplans, marketing analyses, seminar and class attendee rosters, trade show or exhibit attendee listings, listings of customer leads, and any other written\nor machine-readable expressions of such information as are fixed in any tangible media.\n1.6. Trade Secrets. I acknowledge and agree that the Company Confidential Information identified in paragraphs 1.1, 1.2, 1.3 and 1.5, above,\nconstitutes trade secrets of the Company.\n2\n2. General Knowledge\nThe general skills, knowledge and experience gained during my employment with Company, and information publicly available or generally\nknown within the industry or trade areas in which the Company competes, are not considered Company Confidential Information.\n3. Employee Obligations\nDuring my employment with Company, I acknowledge and agree that I will have access to and become acquainted with Company Confidential\nInformation and materials, including its trade secrets, and will occupy a position of trust and confidence with respect to Company’s affairs, business\nand customer goodwill, and Company Confidential Information. I acknowledge and agree that the interests afforded protection by this Agreement\nare Company’s legitimate business interests, deserving of protection. I further acknowledge that the Company would not have entered into or\ncontinued its employment relationship with me without my execution of and agreement to this Agreement. I agree to take the following steps to\npreserve the confidential and proprietary nature of Company Confidential Information and materials and to preserve the Company’s goodwill:\n3.1. Non-Disclosure. During and after my employment with Company, I will not misuse, misappropriate, disclose or transfer in writing, orally\nor by electronic means, any Company Confidential Information, directly or indirectly, to any other person, or use Company Confidential Information\nin any way, except as is required in the course of my employment with Company, nor will I accept any employment or other professional\nengagement that likely will result in the use or disclosure, even if inadvertent, of Company Confidential Information. I further agree that Company\nConfidential Information includes information or material received by Company from others, including its affiliates, and intended by the Company\nto be kept in confidence by its recipients. I understand that I am not allowed to sell, license or otherwise exploit any products (including hardware or\nsoftware in any form) which embody or otherwise exploit in whole or in part any Company Confidential Information or materials. I acknowledge\nand agree that the sale, misappropriation, or unauthorized use or disclosure in writing, orally or by electronic means, at any time of Company\nConfidential Information obtained by me during the course of my employment constitutes unfair competition. I agree and promise not to engage in\nany unfair competition with Company, either during my employment or at any other time thereafter. I further acknowledge and agree that the\nCompany’s products and services can be developed and marketed nationwide, and therefore, the protection afforded the Company must likewise be\nnationwide.\n3.2. Preservation, Removal and Return of Information. I agree to take all reasonable steps to preserve the confidential and proprietary nature of\nCompany Confidential Information and to prevent the inadvertent or accidental disclosure of Company Confidential Information. I acknowledge and\nagree that all Company Confidential Information, whether prepared by me or otherwise coming into my possession while I am employed by the\nCompany, shall remain the exclusive property of Company. I agree that during my employment with the Company and thereafter, I will not use,\ndisclose, transfer, or remove from the Company’s premises any Company\n3\nConfidential Information other than as authorized by the Company. I agree to return to the Company all Company Confidential Information and\ncopies thereof, in whatever form, at any time upon the request of the Company, and at the time of my termination of employment for any reason. I\nagree not to retain any copies of any Company Confidential Information and Company-owned materials after my termination of employment for any\nreason whatsoever. My obligations under this Section 3 shall continue after termination of my employment with the Company.\n3.3. Additional Covenants. I acknowledge the highly competitive nature of the industry in which the Company is involved, and I acknowledge\nthat: my services to the Company will be special and unique; my work for the Company will allow me access to the Company Confidential\nInformation, including trade secrets, and customers; the Company’s business is conducted throughout the United States and over the Internet and\nWorld Wide Web, enabling the Company and me to regularly provide services to customers nationwide; the Company would not have entered into\nthis Agreement but for the covenants and agreements contained in this Section 3; and the agreements and covenants contained in this Section 3 are\nreasonable and are necessary and essential to protect the business, trade secrets, Company Confidential Information, and goodwill of the Company. I\nfurther acknowledge that this Agreement does not restrict my ability to be gainfully employed, and I acknowledge that the geographic boundaries,\nscope of prohibited activities, and time duration of this subsection 3.3 are reasonable in nature and no broader than are necessary to protect the\nlegitimate business interests of the Company. I agree not to raise any objection to the reasonableness of this subsection 3.3 in any action or\nproceeding to enforce the terms of this Agreement. In order to induce the Company to enter into this Agreement, I covenant and agree that:\n(a) During my employment and for twelve (12) months following the termination of my employment with Company, whether voluntary\nor involuntary, without Company’s written express consent, I will not directly or indirectly solicit (other than on behalf of the Company) business or\ncontracts for any products or services of the type provided, developed or under development by the Company during my employment by the\nCompany, from or with (1) any person or entity which was a customer or sales agent of the Company for such products or services as of, or within\none year prior to the my date of termination with the Company, or (2) any prospective customer or sales agent which the Company was soliciting as\nof, or within one year prior to my termination. Additionally, during my employment and for twelve (12) months thereafter, I will not directly or\nindirectly contract with any such customer, prospective customer, sales agent or prospective sales agent for any product or service of the type\nprovided, developed or which was under development by the Company during my employment with the Company. I will not during my employment\nor for twelve (12) months thereafter knowingly interfere or attempt to interfere with any transaction, agreement or business relationship in which the\nCompany was involved or was contemplating during my employment with the Company, including but not limited to relationships with sales agents,\nindependent sales agents, customers, prospective customers, contractors, vendors, service providers, and suppliers.\n(b) During my employment and for 12 months after my employment with Company is terminated for any reason, I agree not to, directly\nor indirectly, solicit,\n4\nrecruit, or hire, or in any manner assist in the hiring, solicitation or recruitment of: (1) any of the Company’s employees, or any individuals who were\nemployed by the Company within twelve (12) months of my termination of employment; or (2) any of the Company’s sales agents or the\nindependent sales agents of any affiliate of the Company, or any person or entity which was a Company sales agent or independent sales agent of a\nCompany affiliate within twelve (12) months prior to the termination of my employment with the Company.\n(c) To prevent the misuse, misappropriation, or unauthorized disclosure of Company’s trade secrets, including Company Confidential\nInformation, and to protect the goodwill of Company, I will not, during my employment and for twelve (12) months after termination of my\nemployment, without Company’s express written consent, directly or indirectly, individually or as an officer, director, employee, shareholder (except\nif as a shareholder of less than 1% of a publicly traded company), consultant, contractor, partner, joint venturer, agent, equity owner, or in any\ncapacity whatsoever, engage in or promote any business or contemplated business that is competitive with the “Company’s Business.” “Company’s\nBusiness” is the research, development, manufacture, sale and/or licensing of products and services related to communications, integrated\ncommunications, long-distance services, Internet access, eCommerce, hardware and software (whether owned or licensed by the Company), and data\nservices, including but not limited to local, domestic, and international long-distance services, local exchange services, wholesale long-distance\nservices, IP/ISP services, high-speed Internet access, DSL services, eCommerce, web hosting, ASP services, data networking, systems integration\nservices, and data communications services, together with any other businesses that Company engages in, plans to engage in or contemplates\nengaging in from the date hereof to the date of termination of my employment.\n3.4. The parties agree that if a Court of competent jurisdiction finds that any term of this Section 3 is for any reason excessively broad in scope\nor duration, such term shall be construed in a manner to enable it to be enforced to the maximum extent possible. Further, the covenants in this\nSection shall be deemed to be a series of separate covenants and agreements, one for each and every region of each state and political division\nworldwide. If, in any judicial proceeding, a court of competent jurisdiction shall refuse to enforce any of the separate covenants deemed included\nherein, then at the option of the Company, wholly unenforceable covenants shall be deemed eliminated from the provision hereof for the purpose of\nsuch proceeding to the extent necessary to permit the remaining separate covenants to be enforced in such proceeding. In addition, if a court or other\nenforcement body finds that any provision of this Agreement may not be enforced as written because of some public policy, I agree that such court\nor enforcement body shall modify and construe such provision to permit its enforcement to the maximum extent permitted by law.\n3.5. Compensation. The Company agrees that if my employment is terminated voluntarily by me, or by the Company without Cause, as\ndefined below for purposes of this Section only, the Company shall, during the one-year period during which the “Additional Covenants” stated in\nsubsections 3.3(a), 3.3(b) and 3.3(c) above are in effect, (i) pay me an amount equal to the annualized base salary paid to me immediately prior to\ntermination of my employment, (ii) pay me, if applicable, an amount equal to the total\n5\namount of all commissions paid to me during the twelve-month period immediately preceding the first day of the month of the date of termination of\nmy employment with the Company, (iii) pay me, if applicable, the amount I would have been eligible to receive under the Company’s bonus plan for\nthe calendar year of the year in which the termination of my employment occurred, as if I had been an employee of the Company during the entire\napplicable bonus year (i.e., the payment shall not be pro-rated in any manner and any requirements of the bonus plan that I be employed by the\nCompany during all of the calendar year covered by the bonus plan and/or be on the Company’s payroll as of the date the bonus payments are\nactually paid out are expressly waived for me in this circumstance), and (iv) count the one-year period during which the “Additional Covenants”\nstated in subsections 3.3(a), 3.3(b), and 3.3(c) above are in effect as one year of service for purposes of calculating the vested portion of any\nCompany stock options that have been granted to me (collectively, the “Non-Competition Compensation”). Payment of my annualized base salary\nshall be made in accordance with the Company’s customary payroll practices, and the Company shall be entitled to make any withholdings from\nsuch payments required by law or otherwise authorized by me, except that the Company shall have no obligation to accommodate my request for\ndirect deposit or voluntary deductions for any purposes. Payment of my commission amount (as described above) shall be made in twelve\ninstallments and will be paid to me according to the Company’s normal commission payment cycle during the one-year period in which the\n“Additional Covenants” stated in subsections 3.3(a), 3.3(b), and 3.3(c) above are in effect. Payment of my bonus amount (as described above) shall\nbe made in accordance with the Company’s established bonus payout practices for the applicable calendar year, and payment shall be made to me at\nthe same time and in the same manner as that calendar year bonus is paid out to the Company’s employees generally. Continued payment of my base\nsalary, payment of my commissions and/or bonus, and continued vesting of my stock options, all under this subparagraph, shall not occur if\ntermination of my employment is due to my death, disability, or termination for “Cause,” as defined below.\n(a) Enforcement. Should I violate any terms of this Agreement, the Company, in addition to any other remedies available under law, may\ndiscontinue any payments being made to me pursuant to this Agreement and may discontinue any continuing vesting of stock options occurring\npursuant to this Agreement.\n(b) Termination for “Cause.” Termination for “Cause” in this subsection 3.5 shall mean termination of my employment with the\nCompany due to: (i) failure or refusal to perform the duties assigned to me, including but not limited to failure to reach assigned goals, quotas and/or\nobjectives; (ii) my refusal to follow the reasonable directives of the Board of Directors or Chief Executive Officer of Company or other\ninsubordination; (iii) conviction or plea of guilty or nolo contendere of a felony, or of a misdemeanor involving dishonesty or violence;\n(iv) misappropriation of any funds or property of the Company; (v) violation of any Company policies; (vi) breach of this Agreement; or\n(vii) commission of any act which could materially injure the business or reputation of, or materially adversely affect the interests, of Company.\n(c) Redundancy. Notwithstanding the foregoing, the payment of all or any portion (as the case may be) of my Non-Competition\nCompensation pursuant to this\n6\nAgreement will cease if such payment would duplicate continued payments provided pursuant to any prior or subsequent agreement of any kind\nbetween me and the Company.\n3.6. E -Mail. I understand that the Company maintains an electronic mail system, Internet system and related facilities for the purpose of\nbusiness communications. I acknowledge that said systems and related facilities, as well as all electronic communications transmitted thereon, are\nCompany property, that I have no right to or expectation of privacy related to my use of such systems and facilities, and the Company retains the\nright to review any and all electronic mail communications, and my use of Internet and other electronic media, with or without notice, at any time.\n4. Prior Proprietary Information and Conflicting Obligations\nDuring my employment with Company, I agree that I will not knowingly improperly use or disclose any proprietary information or trade\nsecrets of any former employer or other person or entity intended by such person or entity not to be disclosed to Company. I further agree that I will\nnot bring onto Company’s premises any unpublished document or proprietary information belonging to any such former employer, person or entity\nunless consented to in writing by such employer, person or entity. I agree to inform the Company of any apparent conflicts between my work for\nCompany and any obligations I may have to preserve the confidentiality of another’s proprietary information or materials; otherwise, the Company\nmay conclude that no such conflict exists and I agree thereafter to make no such claim against Company. Company shall receive such disclosures in\nconfidence and consistent with the objectives of avoiding any conflict of obligations and rights or the appearance of any conflict of interest.\nInventions directly relating and applicable and useful to the Company’s business, if any, patented or unpatented, which I made prior to the\ncommencement of my employment with the Company are excluded from the scope of this Agreement. To preclude any possible uncertainty, I have\nset forth on Exhibit 1 (Prior Inventions) attached hereto a complete list of all such Inventions that I have, alone or jointly with others, conceived,\ndeveloped or reduced to practice or caused to be conceived, developed or reduced to practice prior to the commencement of my employment with\nthe Company, that I consider to be my property or the property of third parties and that I wish to have excluded from the scope of this Agreement\n(collectively referred to as “Prior Inventions”). If disclosure of any such Prior Invention would cause me to violate any prior confidentiality\nagreement, I understand that I am not to list such Prior Inventions in Exhibit 1 but am only to disclose a cursory name for each such invention, a\nlisting of the party(ies) to whom it belongs and the fact that full disclosure as to such inventions has not been made for that reason. A space is\nprovided on Exhibit 1 for such purpose. If no such disclosure is attached, I represent that there are no such Prior Inventions. If, in the course of my\nemployment with the Company, I incorporate a Prior Invention into a Company product, test, service or process, the Company is hereby granted and\nshall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to\nmake, have made, modify, use and sell such Prior Invention. Notwithstanding the foregoing, I agree that I will not incorporate, or permit to be\nincorporated, Prior Inventions in any Company Inventions without the Company’s prior written consent.\n7\nI represent that, to the best of my knowledge, my performance of all of the terms of this Agreement and as an employee of the Company does\nnot and will not breach any agreement to keep in confidence proprietary information acquired by me prior to my employment by the Company.\nFurther, I represent that, to the best of my knowledge, the performance of my duties with the Company will not breach any contractual or other legal\nobligation I have to any third person.\n5. Ideas and Inventions\n5.1. I agree that any and all intellectual properties, including, but not limited to, all ideas, concepts, themes, inventions, designs, tests,\nprocedures, research methods, improvements, discoveries, developments, formulas, patterns, devices, processes, software programs, hardware\ninformation, engineering and other information related to the integration of hardware and software, software program codes, logic diagrams, flow\ncharts, decision charts, drawings, procedural diagrams, coding sheets, documentation manuals, technical data, client, customer and supplier lists, and\ncompilations of information, records, and specifications, and other matters constituting trade secrets or Company Confidential Information, that\nrelate in any way to the actual or prospective business of the Company or to any experimental or developmental work carried on by Company, and\nthat are conceived, developed or written by me, either individually or jointly in collaboration with others during my employment, and all designs,\nplans, reports, specifications, drawings, inventions, processes, test data and/or other information or items produced by me while performing my\nduties for the Company, shall belong to and be the sole and exclusive property of Company, are “works for hire”, and to the extent they are not\n“works for hire”, I hereby assign all of my rights, title and interest in such intellectual properties to the Company, including without limitation, all\npatent, copyright or trade secret rights therein.\n5.2. I further agree to assist Company in obtaining patents on all inventions, designs, improvements and discoveries that are patentable, or\ncopyright registrations on all works of authorship, and to execute all documents and do all things necessary to vest Company with full and exclusive\ntitle and protect against infringement by others. I agree to give the Company or its designees all assistance reasonably required to perfect such rights\nprovided that following termination of my employment, the Company shall reimburse me for my reasonable time and expense in assisting with such\nmatters. I further agree that if the Company is unable, after reasonable effort, to secure my signature on any such papers, any executive officer of the\nCompany shall be entitled to execute any such papers as my agent and attorney-in-fact, and I hereby irrevocably designate and appoint each\nexecutive officer of the Company as my agent and attorney-in-fact to execute any such papers on my behalf, and to take any and all actions as the\nCompany may deem necessary or desirable in order to protect its rights and interests in any work, under the conditions described in this sentence. I\npromise and agree that I will promptly and fully inform the Company of and disclose to Company all intellectual properties described in Section 5.1\nabove that I make during my employment with Company, whether individually or jointly in collaboration with others, that pertain or\n8\nrelate to the actual or potential business of Company or to any experimental or developmental work carried on by Company, whether or not\nconceived during regular working hours. I agree to make full disclosure to Company immediately after creating or making any of the intellectual\nproperties identified in Section 5.1, and shall thereafter keep Company fully informed at all times of all progress in connection therewith. I also\npromise and agree that I will promptly disclose to Company all patent applications filed by me or on my behalf within a year after termination of my\nemployment that relate to or concern actual or contemplated business of the Company.\n5.3. Moral Rights. I understand that the term “moral rights” means any rights of attribution or integrity, including any right to claim authorship\nof a copyrightable work, to object to a modification of such copyrightable work, and any similar right existing under the judicial or statutory law of\nany country in the world or under any treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right.” I\nforever hereby waive and agree never to assert any moral rights I may have in any copyrightable work that is assigned to Company as a result of this\nSection, even after any termination of my employment with Company.\n6. “At Will” Nature of Relationship\nNothing herein shall be construed as constituting an agreement, understanding or commitment of any kind that the Company shall continue to\nemploy me for any period of time. I hereby acknowledge and agree that my employment with the Company is and shall be “at will,” terminable by\nme or by the Company at any time with or without cause and with or without notice. Without limiting the generality of the foregoing, I acknowledge\nthat I will be subject to immediate dismissal for any breach of this Agreement.\n7. Enforcement\nI acknowledge and agree that the restrictions contained in this Agreement are reasonable and necessary to protect the business, trade secrets,\nConfidential Information, goodwill and other interests of the Company and that any violation of these restrictions would cause the Company\nsubstantial irreparable injury. Accordingly, I agree that a remedy at law for any breach of the covenants or other obligations in this Agreement would\nbe inadequate and that the Company, in addition to any other remedies available, shall be entitled to obtain preliminary and permanent injunctive\nrelief to secure specific performance of such covenants and to prevent a breach or threatened breach of this Agreement without the necessity of\nproving actual damage and without the necessity of posting bond or security, which I expressly waive. I will provide the Company a full accounting\nof all proceeds and profits received by me as a result of or in connection with a breach of this Agreement. Unless prohibited by law, the Company\nshall have the right to retain any amounts otherwise payable by the Company to me to satisfy any of my obligations as a result of any breach of this\nAgreement. I hereby agree to indemnify and hold harmless the Company from and against any damages incurred by the Company as assessed by a\ncourt of competent jurisdiction as a result of any breach of this Agreement by me. I agree that each of my obligations specified in this Agreement is a\nseparate and independent covenant that shall survive termination of my employment for any reason and that the unenforceability of any of them shall\nnot preclude the enforcement of any other covenants in this Agreement.\n9\n8. Notification of New Employer\nIn the event that I leave the employ of Company, voluntarily or involuntarily, I agree to inform any subsequent employer of my rights and\nobligations under this Agreement. I further hereby authorize Company to notify my new employer about my rights and obligations under this\nagreement. The foregoing consent is limited to the delivery by Company to my new employer a signed copy of this Agreement, and any written\nmodifications thereto, and not to any characterization thereof made by Company.\n9. Choice of Law\nThis Agreement and its terms will be construed, enforced and governed by the laws of the State of Delaware without regard to conflict or\nchoice of law rules or other principles that might otherwise refer construction or interpretation of this Agreement to the substantive law of a\njurisdiction other than Delaware.\n10. Forum Selection\nWith regard to any claims, complaints or proceedings brought related to my obligations under this Agreement, at all times each party hereto\n(a) irrevocably submits to the exclusive jurisdiction of any New York court or Federal court sitting in the State of New York in any action or\nproceeding arising out of or relating to this Agreement or the transactions contemplated hereby, and irrevocably agrees that all claims in respect of\nany such action or proceeding may be heard and determined in such New York or Federal court; (b) to the extent permitted by law irrevocably\nconsents to the service of any and all process in any such action or proceeding by the mailing of copies of such process to such party at the address\nspecified at the end of this Agreement; (c) to the extent permitted by law irrevocably confirms that service of process out of such courts in such\nmanner shall be deemed due service upon such party for the purposes of such action or proceeding; (d) to the extent permitted by law irrevocably\nwaives (i) any objection such party may have to the laying of venue of any such action or proceeding in any of such courts, or (ii) any claim that\nsuch party may have that any such action or proceeding has been brought in an inconvenient forum; and (e) to the extent permitted by law\nirrevocably agrees that a final nonappealable judgment in any such action or proceeding shall be conclusive and may be enforced in other\njurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Section 10 shall affect the right of any party hereto to\nserve legal process in any manner permitted by law.\n11. Successors and Assigns\nThis Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and permitted assigns, including\nany corporation or entity with which or into which the Company may be merged or which may succeed to its assets or business, provided, however,\nthat my obligations, as an employee, are personal and shall not be assigned by me.\n10\n12. General Terms\nThis is my entire agreement with Company with respect to its subject matter, superseding any prior oral or written, express or implied\nnegotiations and agreements. This Agreement may not be changed in any respect except by a written agreement signed by both myself and an officer\nof Company. If any provision of the Agreement is held to be invalid, illegal or unenforceable for any reason, the validity, legality and enforceability\nof the remaining provisions will not in any way be affected or impaired thereby. The delay or omission by the Company or me in exercising its/my\nrights under this Agreement, or the failure of either party to insist on strict compliance with any of the terms, covenants, or conditions of this\nAgreement by the other party, shall not be deemed a waiver of any terms, covenants or conditions of this Agreement, nor shall any waiver or\nrelinquishment of any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all times or any other\ntime. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or\nsubstance of any section of this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be deemed an\noriginal, and all of which together shall constitute one and the same instrument. It is the express intention and agreement of the parties hereto that all\ncovenants, agreements and statements made by any party in this Agreement shall survive the execution and delivery of this Agreement. In addition,\nthe covenants, agreements and statements made in this Agreement shall survive termination of my employment with the Company for any reason.\nBy my signature below, I acknowledge that I have reviewed this Agreement carefully and understand that the covenants and obligations it\ncontains are binding on me.\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Senior Vice President Confidentiality, Non-Solicitation and\nNon-Competition Agreement as of the day of\n,20\n.\nEMPLOYEE\nSignature\nPrinted Name\nHome Address\nSocial Security #\nDivision/Company/Location\nExhibit 1 attached hereto:\nYes\nNo\nPAETEC COMMUNICATIONS, INC.\nBy:\nJolanda Chesonis\nVice President of Human Resources\n11\nEXHIBIT 1\nPRIOR INVENTIONS\nThis Exhibit 1 sets forth a complete list of all Inventions that I have, alone or jointly with others, conceived, developed or reduced to practice\nor caused to be conceived, developed or reduced to practice prior to the commencement of my Employment with the Company, that I consider to be\nmy property or the property of third parties and that I wish to have excluded from the scope of the Senior Vice President Confidentiality, Non-\nSolicitation and Non-Competition Agreement (“Agreement”) (collectively referred to as “Prior Inventions”).\nI understand that if disclosure of any such Prior Invention would cause me to violate any prior confidentiality agreement, I am not to list such\nPrior Inventions in this Exhibit 1 but am only to disclose a cursory name for each such invention, a listing of the party(ies) to whom it belongs and\nthe fact that full disclosure as to such inventions has not been made for that reason. A space is provided below for such purpose.\nIf no such disclosure is attached, I represent that there are no Prior Inventions.\nDescription of Prior Inventions And Related Documents (if applicable):\nTitle and Description\nof Invention And Related Document\nDate of\nInvention/ Document\nOwners of\nInvention/Document\nName of\nWitness(es) to\nInvention/ Document\nIf no information is listed herein, I hereby affirm that I do not have any such prior intellectual properties, inventions or other works to identify.\nSignature\nName\nDate	EX-10.1 2 dex101.htm FORM OF SENIOR VICE PRESIDENT CONFIDENTIALITY\nExhibit 10.1\nPAETEC COMMUNICATIONS, INC.\nSENIOR VICE PRESIDENT CONFIDENTIALITY, NON-SOLICITATION AND\nNON-COMPETITION AGREEMENT\nThis Senior Vice President Confidentiality, Non-Solicitation and Non-Competition Agreement (this “Agreement”) is entered into as of the date\nset forth on the signature page hereto between PAETEC Communications, Inc., a Delaware corporation, including any subsidiary, successor or\naffiliate of the Company with which I work (collectively, the “Company”), and (“I” or “me”)).\nWHEREAS, the Company now has and expects to develop confidential and proprietary materials and highly sensitive information of\nimmeasurable value, which I recognize must be carefully protected as set forth below for the Company to be successful;\nNOW, THEREFORE, to induce the Company to employ me and in consideration of my employment or continued employment by the\nCompany and other good and valuable consideration the sufficiency of which I expressly acknowledge, the Company and I hereby agree, intending\nto be legally bound, as follows:\n1. Company Confidential Materials and Information\nThe following materials and information, whether having existed, now existing, or to be developed or created during the term of my\nemployment by Company (herein referred to collectively as the “Company Confidential Information™) are covered by this Senior Vice President\nConfidentiality, Non-Solicitation and Non-Competition Agreement (“Agreement”):\n1.1. Products and Services. All information to which the Company gave me access, all information disclosed to me by the Company, and all\ninformation developed for the Company by me, alone or with others, that directly or indirectly relates to the business, products and/or services that\nthe Company engages in, plans to engage in or contemplates engaging in, including but not limited to research, development, manufacture, sale\nand/or licensing of products and services related to communications, integrated communications, long-distance services, Internet access,\neCommerce, hardware and software (whether owned or licensed by the Company), and data services, including but not limited to local, domestic,\nand international long-distance services, local exchange services, wholesale long-distance services, IP/ISP services, high-speed Internet access, DSL\nservices, eCommerce, web hosting, ASP services, data networking, systems integration services, and data communications services and other\nproprietary products or services, whether existing or in any stage of research and development (such as trade secrets, inventions, ideas, methods,\ntechnical and laboratory data, engineering data and information, engineering information related to the integration of communications devices and\nequipment, benchmark test results, processes, design specifications, algorithms, technical data, technical formulas, engineering data, processes,\nmanufacturing data, procedures, techniques, methodologies, information processing processes, and strategies).\n1.2. Business and Marketing Procedures and Customer Information. All information concerning or relating to the way Company conducts its\nbusiness, markets\nits products and services, and all information relating to any Company customers and sales agents or prospective customers and sales agents (such as\ninternal business procedures, business strategies, marketing plans and strategies, controls, plans, licensing techniques and practices, supplier,\nsubcontractor and prime contractor names and contracts and other vendor information, customer information and requirements, sales agent\ninformation, computer system passwords and other computer security controls, financial information, distributor information, information supplied\nby clients and customers of Company and employee data).\n1.3. Not Generally Known. Any information in addition to the foregoing which is not generally known to the public or within the industry or\ntrade areas in which Company competes, through no fault of mine, which gives the Company any advantage over its competitors.\n1.4. Third-Party Information. Any information that is confidential and proprietary to a third party that the Company has and in the future will\nreceive from such third party subject to the Company’s duty to maintain the confidentiality of such information and to use it for certain limited\npurposes.\nall of the information included in Sections 1.1, 1.2, 1.3 and 1.4 above, including but not limited to research programs, research data, testing data,\nsoftware, compositions, compounds, hardware, works of authorship, source code, other computer code, correspondence, check lists, samples, forms,\nledgers, financial data, financial statements, financial reports, forecasts and projections, discounts, margins, costs, credit terms, pricing practices,\npricing policies and procedures, goals and objectives, quoting practices, quoting procedures and policies, financial and operational analyses and\nstudies, management reports of every kind, databases, employment records pertaining to employees other than myself, customer data including\ncustomer lists, contracts, representatives, requirements and needs, specifications, data provided by or about prospective, existing or past customers\nand contract terms applicable to such customers, engineering notebooks, notes, drawings, work sheets, schematics, load modules, schematics,\nannotations, flow charts, logic diagrams, procedural diagrams, coding sheets, requirements, proposals, instructor manuals, course materials, video\ncassettes, transparencies, slides, presentations, proposals, printouts, studies, contracts, maintenance manuals, operational manuals, documentation,\nlicense agreements, marketing practices, marketing policies and procedures, marketing plans and strategies, marketing reports, strategic business\nplans, marketing analyses, seminar and class attendee rosters, trade show or exhibit attendee listings, listings of customer leads, and any other written\nor machine-readable expressions of such information as are fixed in any tangible media.\n1.6. Trade Secrets. I acknowledge and agree that the Company Confidential Information identified in paragraphs 1.1, 1.2, 1.3 and 1.5, above,\nconstitutes trade secrets of the Company.\n2. General Knowledge\nThe general skills, knowledge and experience gained during my employment with Company, and information publicly available or generally\nknown within the industry or trade areas in which the Company competes, are not considered Company Confidential Information.\n3. Employee Obligations\nDuring my employment with Company, I acknowledge and agree that I will have access to and become acquainted with Company Confidential\nInformation and materials, including its trade secrets, and will occupy a position of trust and confidence with respect to Company’s affairs, business\nand customer goodwill, and Company Confidential Information. I acknowledge and agree that the interests afforded protection by this Agreement\nare Company’s legitimate business interests, deserving of protection. I further acknowledge that the Company would not have entered into or\ncontinued its employment relationship with me without my execution of and agreement to this Agreement. I agree to take the following steps to\npreserve the confidential and proprietary nature of Company Confidential Information and materials and to preserve the Company’s goodwill:\n3.1. Non-Disclosure. During and after my employment with Company, I will not misuse, misappropriate, disclose or transfer in writing, orally\nor by electronic means, any Company Confidential Information, directly or indirectly, to any other person, or use Company Confidential Information\nin any way, except as is required in the course of my employment with Company, nor will I accept any employment or other professional\nengagement that likely will result in the use or disclosure, even if inadvertent, of Company Confidential Information. I further agree that Company\nConfidential Information includes information or material received by Company from others, including its affiliates, and intended by the Company\nto be kept in confidence by its recipients. I understand that I am not allowed to sell, license or otherwise exploit any products (including hardware or\nsoftware in any form) which embody or otherwise exploit in whole or in part any Company Confidential Information or materials. I acknowledge\nand agree that the sale, misappropriation, or unauthorized use or disclosure in writing, orally or by electronic means, at any time of Company\nConfidential Information obtained by me during the course of my employment constitutes unfair competition. I agree and promise not to engage in\nany unfair competition with Company, either during my employment or at any other time thereafter. I further acknowledge and agree that the\nCompany’s products and services can be developed and marketed nationwide, and therefore, the protection afforded the Company must likewise be\nnationwide.\n3.2. Preservation, Removal and Return of Information. I agree to take all reasonable steps to preserve the confidential and proprietary nature of\nCompany Confidential Information and to prevent the inadvertent or accidental disclosure of Company Confidential Information. I acknowledge and\nagree that all Company Confidential Information, whether prepared by me or otherwise coming into my possession while I am employed by the\nCompany, shall remain the exclusive property of Company. I agree that during my employment with the Company and thereafter, I will not use,\ndisclose, transfer, or remove from the Company’s premises any Company\nConfidential Information other than as authorized by the Company. I agree to return to the Company all Company Confidential Information and\ncopies thereof, in whatever form, at any time upon the request of the Company, and at the time of my termination of employment for any reason. I\nagree not to retain any copies of any Company Confidential Information and Company-owned materials after my termination of employment for any\nreason whatsoever. My obligations under this Section 3 shall continue after termination of my employment with the Company.\n3.3. Additional Covenants. I acknowledge the highly competitive nature of the industry in which the Company is involved, and I acknowledge\nthat: my services to the Company will be special and unique; my work for the Company will allow me access to the Company Confidential\nInformation, including trade secrets, and customers; the Company’s business is conducted throughout the United States and over the Internet and\nWorld Wide Web, enabling the Company and me to regularly provide services to customers nationwide; the Company would not have entered into\nthis Agreement but for the covenants and agreements contained in this Section 3; and the agreements and covenants contained in this Section 3 are\nreasonable and are necessary and essential to protect the business, trade secrets, Company Confidential Information, and goodwill of the Company. I\nfurther acknowledge that this Agreement does not restrict my ability to be gainfully employed, and I acknowledge that the geographic boundaries,\nscope of prohibited activities, and time duration of this subsection 3.3 are reasonable in nature and no broader than are necessary to protect the\nlegitimate business interests of the Company. I agree not to raise any objection to the reasonableness of this subsection 3.3 in any action or\nproceeding to enforce the terms of this Agreement. In order to induce the Company to enter into this Agreement, I covenant and agree that:\n(a) During my employment and for twelve (12) months following the termination of my employment with Company, whether voluntary\nor involuntary, without Company’s written express consent, I will not directly or indirectly solicit (other than on behalf of the Company) business or\ncontracts for any products or services of the type provided, developed or under development by the Company during my employment by the\nCompany, from or with (1) any person or entity which was a customer or sales agent of the Company for such products or services as of, or within\none year prior to the my date of termination with the Company, or (2) any prospective customer or sales agent which the Company was soliciting as\nof, or within one year prior to my termination. Additionally, during my employment and for twelve (12) months thereafter, I will not directly or\nindirectly contract with any such customer, prospective customer, sales agent or prospective sales agent for any product or service of the type\nprovided, developed or which was under development by the Company during my employment with the Company. I will not during my employment\nor for twelve (12) months thereafter knowingly interfere or attempt to interfere with any transaction, agreement or business relationship in which the\nCompany was involved or was contemplating during my employment with the Company, including but not limited to relationships with sales agents,\nindependent sales agents, customers, prospective customers, contractors, vendors, service providers, and suppliers.\n(b) During my employment and for 12 months after my employment with Company is terminated for any reason, I agree not to, directly\nor indirectly, solicit,\nrecruit, or hire, or in any manner assist in the hiring, solicitation or recruitment of: (1) any of the Company’s employees, or any individuals who were\nemployed by the Company within twelve (12) months of my termination of employment; or (2) any of the Company’s sales agents or the\nindependent sales agents of any affiliate of the Company, or any person or entity which was a Company sales agent or independent sales agent of a\nCompany affiliate within twelve (12) months prior to the termination of my employment with the Company.\n(c) To prevent the misuse, misappropriation, or unauthorized disclosure of Company’s trade secrets, including Company Confidential\nInformation, and to protect the goodwill of Company, I will not, during my employment and for twelve (12) months after termination of my\nemployment, without Company’s express written consent, directly or indirectly, individually or as an officer, director, employee, shareholder (except\nif as a shareholder of less than 1% of a publicly traded company), consultant, contractor, partner, joint venturer, agent, equity owner, or in any\ncapacity whatsoever, engage in or promote any business or contemplated business that is competitive with the “Company’s Business.” “Company’s\nBusiness” is the research, development, manufacture, sale and/or licensing of products and services related to communications, integrated\ncommunications, long-distance services, Internet access, eCommerce, hardware and software (whether owned or licensed by the Company), and data\nservices, including but not limited to local, domestic, and international long-distance services, local exchange services, wholesale long-distance\nservices, IP/ISP services, high-speed Internet access, DSL services, eCommerce, web hosting, ASP services, data networking, systems integration\nservices, and data communications services, together with any other businesses that Company engages in, plans to engage in or contemplates\nengaging in from the date hereof to the date of termination of my employment.\n3.4. The parties agree that if a Court of competent jurisdiction finds that any term of this Section 3 is for any reason excessively broad in scope\nor duration, such term shall be construed in a manner to enable it to be enforced to the maximum extent possible. Further, the covenants in this\nSection shall be deemed to be a series of separate covenants and agreements, one for each and every region of each state and political division\nworldwide. If, in any judicial proceeding, a court of competent jurisdiction shall refuse to enforce any of the separate covenants deemed included\nherein, then at the option of the Company, wholly unenforceable covenants shall be deemed eliminated from the provision hereof for the purpose of\nsuch proceeding to the extent necessary to permit the remaining separate covenants to be enforced in such proceeding. In addition, if a court or other\nenforcement body finds that any provision of this Agreement may not be enforced as written because of some public policy, I agree that such court\nor enforcement body shall modify and construe such provision to permit its enforcement to the maximum extent permitted by law.\n3.5. Compensation. The Company agrees that if my employment is terminated voluntarily by me, or by the Company without Cause, as\ndefined below for purposes of this Section only, the Company shall, during the one-year period during which the “Additional Covenants” stated in\nsubsections 3.3(a), 3.3(b) and 3.3(c) above are in effect, (i) pay me an amount equal to the annualized base salary paid to me immediately prior to\ntermination of my employment, (ii) pay me, if applicable, an amount equal to the total\n5\namount of all commissions paid to me during the twelve-month period immediately preceding the first day of the month of the date of termination of\nmy employment with the Company, (iii) pay me, if applicable, the amount I would have been eligible to receive under the Company’s bonus plan for\nthe calendar year of the year in which the termination of my employment occurred, as if I had been an employee of the Company during the entire\napplicable bonus year (i.e., the payment shall not be pro-rated in any manner and any requirements of the bonus plan that I be employed by the\nCompany during all of the calendar year covered by the bonus plan and/or be on the Company’s payroll as of the date the bonus payments are\nactually paid out are expressly waived for me in this circumstance), and (iv) count the one-year period during which the “Additional Covenants”\nstated in subsections 3.3(a), 3.3(b), and 3.3(c) above are in effect as one year of service for purposes of calculating the vested portion of any\nCompany stock options that have been granted to me (collectively, the “Non-Competition Compensation”). Payment of my annualized base salary\nshall be made in accordance with the Company’s customary payroll practices, and the Company shall be entitled to make any withholdings from\nsuch payments required by law or otherwise authorized by me, except that the Company shall have no obligation to accommodate my request for\ndirect deposit or voluntary deductions for any purposes. Payment of my commission amount (as described above) shall be made in twelve\ninstallments and will be paid to me according to the Company’s normal commission payment cycle during the one-year period in which the\n“Additional Covenants” stated in subsections 3.3(a), 3.3(b), and 3.3(c) above are in effect. Payment of my bonus amount (as described above) shall\nbe made in accordance with the Company’s established bonus payout practices for the applicable calendar year, and payment shall be made to me at\nthe same time and in the same manner as that calendar year bonus is paid out to the Company’s employees generally. Continued payment of my base\nsalary, payment of my commissions and/or bonus, and continued vesting of my stock options, all under this subparagraph, shall not occur if\ntermination of my employment is due to my death, disability, or termination for “Cause,” as defined below.\n(a) Enforcement. Should I violate any terms of this Agreement, the Company, in addition to any other remedies available under law, may\ndiscontinue any payments being made to me pursuant to this Agreement and may discontinue any continuing vesting of stock options occurring\npursuant to this Agreement.\n \n(b) Termination for “Cause.” Termination for “Cause” in this subsection 3.5 shall mean termination of my employment with the\nCompany due to: (i) failure or refusal to perform the duties assigned to me, including but not limited to failure to reach assigned goals, quotas and/or\nobjectives; (ii) my refusal to follow the reasonable directives of the Board of Directors or Chief Executive Officer of Company or other\ninsubordination; (iii) conviction or plea of guilty or nolo contendere of a felony, or of a misdemeanor involving dishonesty or violence;\n(iv) misappropriation of any funds or property of the Company; (v) violation of any Company policies; (vi) breach of this Agreement; or\n(vii) commission of any act which could materially injure the business or reputation of, or materially adversely affect the interests, of Company.\n(c) Redundancy. Notwithstanding the foregoing, the payment of all or any portion (as the case may be) of my Non-Competition\nCompensation pursuant to this\nAgreement will cease if such payment would duplicate continued payments provided pursuant to any prior or subsequent agreement of any kind\nbetween me and the Company.\n3.6. E-Mail. I understand that the Company maintains an electronic mail system, Internet system and related facilities for the purpose of\nbusiness communications. I acknowledge that said systems and related facilities, as well as all electronic communications transmitted thereon, are\nCompany property, that I have no right to or expectation of privacy related to my use of such systems and facilities, and the Company retains the\nright to review any and all electronic mail communications, and my use of Internet and other electronic media, with or without notice, at any time.\n4. Prior Proprietary Information and Conflicting Obligations\nDuring my employment with Company, I agree that I will not knowingly improperly use or disclose any proprietary information or trade\nsecrets of any former employer or other person or entity intended by such person or entity not to be disclosed to Company. I further agree that I will\nnot bring onto Company’s premises any unpublished document or proprietary information belonging to any such former employer, person or entity\nunless consented to in writing by such employer, person or entity. I agree to inform the Company of any apparent conflicts between my work for\nCompany and any obligations I may have to preserve the confidentiality of another’s proprietary information or materials; otherwise, the Company\nmay conclude that no such conflict exists and I agree thereafter to make no such claim against Company. Company shall receive such disclosures in\nconfidence and consistent with the objectives of avoiding any conflict of obligations and rights or the appearance of any conflict of interest.\nInventions directly relating and applicable and useful to the Company’s business, if any, patented or unpatented, which I made prior to the\ncommencement of my employment with the Company are excluded from the scope of this Agreement. To preclude any possible uncertainty, I have\nset forth on Exhibit 1 (Prior Inventions) attached hereto a complete list of all such Inventions that I have, alone or jointly with others, conceived,\ndeveloped or reduced to practice or caused to be conceived, developed or reduced to practice prior to the commencement of my employment with\nthe Company, that I consider to be my property or the property of third parties and that I wish to have excluded from the scope of this Agreement\n(collectively referred to as “Prior Inventions”). If disclosure of any such Prior Invention would cause me to violate any prior confidentiality\nagreement, I understand that I am not to list such Prior Inventions in Exhibit 1 but am only to disclose a cursory name for each such invention, a\nlisting of the party(ies) to whom it belongs and the fact that full disclosure as to such inventions has not been made for that reason. A space is\nprovided on Exhibit 1 for such purpose. If no such disclosure is attached, I represent that there are no such Prior Inventions. If, in the course of my\nemployment with the Company, I incorporate a Prior Invention into a Company product, test, service or process, the Company is hereby granted and\nshall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to\nmake, have made, modify, use and sell such Prior Invention. Notwithstanding the foregoing, I agree that I will not incorporate, or permit to be\nincorporated, Prior Inventions in any Company Inventions without the Company’s prior written consent.\n7\nI represent that, to the best of my knowledge, my performance of all of the terms of this Agreement and as an employee of the Company does\nnot and will not breach any agreement to keep in confidence proprietary information acquired by me prior to my employment by the Company.\nFurther, I represent that, to the best of my knowledge, the performance of my duties with the Company will not breach any contractual or other legal\nobligation I have to any third person.\n5. Ideas and Inventions\n5.1. I agree that any and all intellectual properties, including, but not limited to, all ideas, concepts, themes, inventions, designs, tests,\nprocedures, research methods, improvements, discoveries, developments, formulas, patterns, devices, processes, software programs, hardware\ninformation, engineering and other information related to the integration of hardware and software, software program codes, logic diagrams, flow\ncharts, decision charts, drawings, procedural diagrams, coding sheets, documentation manuals, technical data, client, customer and supplier lists, and\ncompilations of information, records, and specifications, and other matters constituting trade secrets or Company Confidential Information, that\nrelate in any way to the actual or prospective business of the Company or to any experimental or developmental work carried on by Company, and\nthat are conceived, developed or written by me, either individually or jointly in collaboration with others during my employment, and all designs,\nplans, reports, specifications, drawings, inventions, processes, test data and/or other information or items produced by me while performing my\nduties for the Company, shall belong to and be the sole and exclusive property of Company, are “works for hire”, and to the extent they are not\n“works for hire”, I hereby assign all of my rights, title and interest in such intellectual properties to the Company, including without limitation, all\npatent, copyright or trade secret rights therein.\n5.2. I further agree to assist Company in obtaining patents on all inventions, designs, improvements and discoveries that are patentable, or\ncopyright registrations on all works of authorship, and to execute all documents and do all things necessary to vest Company with full and exclusive\ntitle and protect against infringement by others. I agree to give the Company or its designees all assistance reasonably required to perfect such rights\nprovided that following termination of my employment, the Company shall reimburse me for my reasonable time and expense in assisting with such\nmatters. I further agree that if the Company is unable, after reasonable effort, to secure my signature on any such papers, any executive officer of the\nCompany shall be entitled to execute any such papers as my agent and attorney-in-fact, and I hereby irrevocably designate and appoint each\nexecutive officer of the Company as my agent and attorney-in-fact to execute any such papers on my behalf, and to take any and all actions as the\nCompany may deem necessary or desirable in order to protect its rights and interests in any work, under the conditions described in this sentence. I\npromise and agree that I will promptly and fully inform the Company of and disclose to Company all intellectual properties described in Section 5.1\nabove that I make during my employment with Company, whether individually or jointly in collaboration with others, that pertain or\n8\nrelate to the actual or potential business of Company or to any experimental or developmental work carried on by Company, whether or not\nconceived during regular working hours. I agree to make full disclosure to Company immediately after creating or making any of the intellectual\nproperties identified in Section 5.1, and shall thereafter keep Company fully informed at all times of all progress in connection therewith. I also\npromise and agree that I will promptly disclose to Company all patent applications filed by me or on my behalf within a year after termination of my\nemployment that relate to or concern actual or contemplated business of the Company.\n5.3. Moral Rights. I understand that the term “moral rights” means any rights of attribution or integrity, including any right to claim authorship\nof a copyrightable work, to object to a modification of such copyrightable work, and any similar right existing under the judicial or statutory law of\nany country in the world or under any treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right.” I\nforever hereby waive and agree never to assert any moral rights I may have in any copyrightable work that is assigned to Company as a result of this\nSection, even after any termination of my employment with Company.\n6. “At Will” Nature of Relationship\nNothing herein shall be construed as constituting an agreement, understanding or commitment of any kind that the Company shall continue to\nemploy me for any period of time. I hereby acknowledge and agree that my employment with the Company is and shall be “at will,” terminable by\nme or by the Company at any time with or without cause and with or without notice. Without limiting the generality of the foregoing, I acknowledge\nthat I will be subject to immediate dismissal for any breach of this Agreement.\n7. Enforcement\nI acknowledge and agree that the restrictions contained in this Agreement are reasonable and necessary to protect the business, trade secrets,\nConfidential Information, goodwill and other interests of the Company and that any violation of these restrictions would cause the Company\nsubstantial irreparable injury. Accordingly, I agree that a remedy at law for any breach of the covenants or other obligations in this Agreement would\nbe inadequate and that the Company, in addition to any other remedies available, shall be entitled to obtain preliminary and permanent injunctive\nrelief to secure specific performance of such covenants and to prevent a breach or threatened breach of this Agreement without the necessity of\nproving actual damage and without the necessity of posting bond or security, which I expressly waive. I will provide the Company a full accounting\nof all proceeds and profits received by me as a result of or in connection with a breach of this Agreement. Unless prohibited by law, the Company\nshall have the right to retain any amounts otherwise payable by the Company to me to satisfy any of my obligations as a result of any breach of this\nAgreement. I hereby agree to indemnify and hold harmless the Company from and against any damages incurred by the Company as assessed by a\ncourt of competent jurisdiction as a result of any breach of this Agreement by me. I agree that each of my obligations specified in this Agreement is a\nseparate and independent covenant that shall survive termination of my employment for any reason and that the unenforceability of any of them shall\nnot preclude the enforcement of any other covenants in this Agreement.\n8. Notification of New Employer\nIn the event that I leave the employ of Company, voluntarily or involuntarily, I agree to inform any subsequent employer of my rights and\nobligations under this Agreement. I further hereby authorize Company to notify my new employer about my rights and obligations under this\nagreement. The foregoing consent is limited to the delivery by Company to my new employer a signed copy of this Agreement, and any written\nmodifications thereto, and not to any characterization thereof made by Company.\n9. Choice of Law\nThis Agreement and its terms will be construed, enforced and governed by the laws of the State of Delaware without regard to conflict or\nchoice of law rules or other principles that might otherwise refer construction or interpretation of this Agreement to the substantive law of a\njurisdiction other than Delaware.\n10. Forum Selection\nWith regard to any claims, complaints or proceedings brought related to my obligations under this Agreement, at all times each party hereto\n(a) irrevocably submits to the exclusive jurisdiction of any New York court or Federal court sitting in the State of New York in any action or\nproceeding arising out of or relating to this Agreement or the transactions contemplated hereby, and irrevocably agrees that all claims in respect of\nany such action or proceeding may be heard and determined in such New York or Federal court; (b) to the extent permitted by law irrevocably\nconsents to the service of any and all process in any such action or proceeding by the mailing of copies of such process to such party at the address\nspecified at the end of this Agreement; (c) to the extent permitted by law irrevocably confirms that service of process out of such courts in such\nmanner shall be deemed due service upon such party for the purposes of such action or proceeding; (d) to the extent permitted by law irrevocably\nwaives (i) any objection such party may have to the laying of venue of any such action or proceeding in any of such courts, or (ii) any claim that\nsuch party may have that any such action or proceeding has been brought in an inconvenient forum; and (e) to the extent permitted by law\nirrevocably agrees that a final nonappealable judgment in any such action or proceeding shall be conclusive and may be enforced in other\njurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Section 10 shall affect the right of any party hereto to\nserve legal process in any manner permitted by law.\n11. Successors and Assigns\nThis Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and permitted assigns, including\nany corporation or entity with which or into which the Company may be merged or which may succeed to its assets or business, provided, however,\nthat my obligations, as an employee, are personal and shall not be assigned by me.\n \n10\n12. General Terms\nThis is my entire agreement with Company with respect to its subject matter, superseding any prior oral or written, express or implied\nnegotiations and agreements. This Agreement may not be changed in any respect except by a written agreement signed by both myself and an officer\nof Company. If any provision of the Agreement is held to be invalid, illegal or unenforceable for any reason, the validity, legality and enforceability\nof the remaining provisions will not in any way be affected or impaired thereby. The delay or omission by the Company or me in exercising its/my\nrights under this Agreement, or the failure of either party to insist on strict compliance with any of the terms, covenants, or conditions of this\nAgreement by the other party, shall not be deemed a waiver of any terms, covenants or conditions of this Agreement, nor shall any waiver or\nrelinquishment of any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all times or any other\ntime. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or\nsubstance of any section of this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be deemed an\noriginal, and all of which together shall constitute one and the same instrument. It is the express intention and agreement of the parties hereto that all\ncovenants, agreements and statements made by any party in this Agreement shall survive the execution and delivery of this Agreement. In addition,\nthe covenants, agreements and statements made in this Agreement shall survive termination of my employment with the Company for any reason.\nBy my signature below, I acknowledge that I have reviewed this Agreement carefully and understand that the covenants and obligations it\ncontains are binding on me.\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Senior Vice President Confidentiality, Non-Solicitation and\nNon-Competition Agreement as of the __ day of ,20__\nEMPLOYEE\nSignature\nPrinted Name\nHome Address\nSocial Security #\nDivision/Company/Location\nExhibit 1 attached hereto: Yes No\nPAETEC COMMUNICATIONS, INC.\nBy:\nJolanda Chesonis\nVice President of Human Resources\n11\nEXHIBIT 1\nPRIOR INVENTIONS\nThis Exhibit 1 sets forth a complete list of all Inventions that I have, alone or jointly with others, conceived, developed or reduced to practice\nor caused to be conceived, developed or reduced to practice prior to the commencement of my Employment with the Company, that I consider to be\nmy property or the property of third parties and that I wish to have excluded from the scope of the Senior Vice President Confidentiality, Non-\nSolicitation and Non-Competition Agreement (“Agreement”) (collectively referred to as “Prior Inventions™).\nI understand that if disclosure of any such Prior Invention would cause me to violate any prior confidentiality agreement, I am not to list such\nPrior Inventions in this Exhibit 1 but am only to disclose a cursory name for each such invention, a listing of the party(ies) to whom it belongs and\nthe fact that full disclosure as to such inventions has not been made for that reason. A space is provided below for such purpose.\nIf no such disclosure is attached, I represent that there are no Prior Inventions.\nDescription of Prior Inventions And Related Documents (if applicable):\nName of\nTitle and Description Date of Owners of Witness(es) to\nof Invention And Related Document Invention/ Document Invention/Document Invention/ Document\nIf no information is listed herein, I hereby affirm that I do not have any such prior intellectual properties, inventions or other works to identify.\nSignature\nName\nDate	EX-10.1 2 dex101.htm FORM OF SENIOR VICE PRESIDENT CONFIDENTIALITY\nExhibit 10.1\nPAETEC COMMUNICATIONS, INC.\nSENIOR VICE PRESIDENT CONFIDENTIALITY, NON-SOLICITATION AND\nNON-COMPETITION AGREEMENT\nThis Senior Vice President Confidentiality, Non-Solicitation and Non-Competition Agreement (this "Agreement") is entered into as of the date\nset forth on the signature page hereto between PAETEC Communications, Inc., a Delaware corporation, including any subsidiary, successor or\naffiliate of the Company with which I work (collectively, the "Company"), and\n("I" or "me"))\nWHEREAS, the Company now has and expects to develop confidential and proprietary materials and highly sensitive information of\nimmeasurable value, which I recognize must be carefully protected as set forth below for the Company to be successful;\nNOW, THEREFORE, to induce the Company to employ me and in consideration of my employment or continued employment by the\nCompany and other good and valuable consideration the sufficiency of which I expressly acknowledge, the Company and I hereby agree, intending\nto be legally bound, as follows:\n1. Company Confidential Materials and Information\nThe following materials and information, whether having existed, now existing, or to be developed or created during the term of my\nemployment by Company (herein referred to collectively as the "Company Confidential Information") are covered by this Senior Vice President\nConfidentiality, Non-Solicitation and Non-Competition Agreement ("Agreement"):\n1.1. Products and Services. All information to which the Company gave me access, all information disclosed to me by the Company, and all\ninformation developed for the Company by me, alone or with others, that directly or indirectly relates to the business, products and/or services that\nthe Company engages in, plans to engage in or contemplates engaging in, including but not limited to research, development, manufacture, sale\nand/or licensing of products and services related to communications, integrated communications, long-distance services, Internet access,\neCommerce, hardware and software (whether owned or licensed by the Company), and data services, including but not limited to local, domestic,\nand\ninternational long-distance services, local exchange services, wholesale long-distance services, IP/ISP services, high-speed Internet\naccess,\nDSL\nservices, eCommerce, web hosting, ASP services, data networking, systems integration services, and data communications services and other\nproprietary products or services, whether existing or in any stage of research and development (such as trade secrets, inventions, ideas, methods,\ntechnical and laboratory data, engineering data and information, engineering information related to the integration of communications devices and\nequipment, benchmark test results, processes, design specifications, algorithms, technical data, technical formulas, engineering data, processes,\nmanufacturing data, procedures, techniques, methodologies, information processing processes, and strategies).\n1.2. Business and Marketing Procedures and Customer Information. All information concerning or relating to the way Company conducts its\nbusiness, markets\nits products and services, and all information relating to any Company customers and sales agents or prospective customers and sales agents (such as\ninternal business procedures, business strategies, marketing plans and strategies, controls, plans, licensing techniques and practices, supplier,\nsubcontractor and prime contractor names and contracts and other vendor information, customer information and requirements, sales agent\ninformation, computer system passwords and other computer security controls, financial information, distributor information, information supplied\nby clients and customers of Company and employee data).\n1.3. Not Generally Known. Any information in addition to the foregoing which is not generally known to the public or within the industry or\ntrade areas in which Company competes, through no fault of mine, which gives the Company any advantage over its competitors.\n1.4. Third-Party. Information. Any information that is confidential and proprietary to a third party that the Company has and in the future will\nreceive from such third party subject to the Company's duty to maintain the confidentiality of such information and to use it for certain limited\npurposes.\n1.5. All Physical Embodiments of Products, Services, Business, Marketing, Customer and Other Information. All the physical embodiments of\nall\nof the information included in Sections 1.1, 1.2, 1.3 and 1.4 above, including but not limited to research programs, research data, testing data,\nsoftware, compositions, compounds, hardware, works of authorship, source code, other computer code, correspondence, check lists, samples, forms,\nledgers, financial data, financial statements, financial reports, forecasts and projections, discounts, margins, costs, credit terms, pricing practices,\npricing\npolicies and procedures, goals and objectives, quoting practices, quoting procedures and policies, financial and operational analyses and\nstudies, management reports of every kind, databases, employment records pertaining to employees other than myself, customer data including\ncustomer lists, contracts, representatives, requirements and needs, specifications, data provided by or about prospective, existing or past customers\nand contract terms applicable to such customers, engineering notebooks, notes, drawings, work sheets, schematics, load modules, schematics,\nannotations, flow charts, logic diagrams, procedural diagrams, coding sheets, requirements, proposals, instructor manuals, course materials, video\ncassettes, transparencies, slides, presentations, proposals, printouts, studies, contracts, maintenance manuals, operational manuals, documentation,\nlicense agreements, marketing practices, marketing policies and procedures, marketing plans and strategies, marketing reports, strategic business\nplans, marketing analyses, seminar and class attendee rosters, trade show or exhibit attendee listings, listings of customer leads, and any other written\nor machine-readable expressions of such information as are fixed in any tangible media.\n1.6. Trade Secrets. I acknowledge and agree that the Company Confidential Information identified in paragraphs 1.1, 1.2, 1.3 and 1.5, above,\nconstitutes trade secrets of the Company.\n2\n2. General Knowledge\nThe general skills, knowledge and experience gained during my employment with Company, and information publicly available or generally\nknown within the industry or trade areas in which the Company competes, are not considered Company Confidential Information.\n3. Employee Obligations\nDuring my employment with Company, I acknowledge and agree that I will have access to and become acquainted with Company Confidential\nInformation and materials, including its trade secrets, and will occupy a position of trust and confidence with respect to Company's affairs, business\nand customer goodwill, and Company Confidential Information. I acknowledge and agree that the interests afforded protection by this Agreement\nare Company's legitimate business interests, deserving of protection. I further acknowledge that the Company would not have entered into or\ncontinued its employment relationship with me without my execution of and agreement to this Agreement. I agree to take the following steps\nto\npreserve the confidential and proprietary nature of Company Confidential Information and materials and to preserve the Company's goodwill:\n3.1. Non-Disclosure. During and after my employment with Company, I will not misuse, misappropriate, disclose or transfer in writing, orally\nor\nby electronic means, any Company Confidential Information, directly or indirectly, to any other person, or use Company Confidential Information\nin any way, except as is required in the course of my employment with Company, nor will I accept any employment or other professional\nengagement that likely will result in the use or disclosure, even if inadvertent, of Company Confidential Information. I further agree that Company\nConfidential Information includes information or material received by Company from others, including its affiliates, and intended by the Company\nto be kept in confidence by its recipients. I understand that I am not allowed to sell, license or otherwise exploit any products (including hardware or\nsoftware in any form) which embody or otherwise exploit in whole or in part any Company Confidential Information or materials. I acknowledge\nand agree that the sale, misappropriation, or unauthorized use or disclosure in writing, orally or by electronic means, at any time of Company\nConfidential Information obtained by me during the course of my employment constitutes unfair competition. I agree and promise not to engage\nin\nany unfair competition with Company, either during my employment or at any other time thereafter. I further acknowledge and agree that the\nCompany's products and services can be developed and marketed nationwide, and therefore, the protection afforded the Company must likewise\nbe\nnationwide.\n3.2 Preservation, Removal and Return of Information. I agree to take all reasonable steps to preserve the confidential and proprietary nature of\nCompany Confidential Information and to prevent the inadvertent or accidental disclosure of Company Confidential Information. I acknowledge and\nagree that all Company Confidential Information, whether prepared by me or otherwise coming into my possession while I am employed by the\nCompany, shall remain the exclusive property of Company. I agree that during my employment with the Company and thereafter, I will not use,\ndisclose, transfer, or remove from the Company's premises any Company\n3\nConfidential Information other than as authorized by the Company. I agree to return to the Company all Company Confidential Information and\ncopies thereof, in whatever form, at any time upon the request of the Company, and at the time of my termination of employment for any reason. I\nagree not to retain any copies of any Company Confidential Information and Company-owned materials after my termination of employment for any\nreason whatsoever. My obligations under this Section 3 shall continue after termination of my employment with the Company.\n3.3. Additional Covenants. I acknowledge the highly competitive nature of the industry in which the Company is involved, and I acknowledge\nthat: my services to the Company will be special and unique; my work for the Company will allow me access to the Company Confidential\nInformation, including trade secrets, and customers; the Company's business is conducted throughout the United States and over the Internet and\nWorld Wide Web, enabling the Company and me to regularly provide services to customers nationwide; the Company would not have entered into\nthis Agreement but for the covenants and agreements contained in this Section 3; and the agreements and covenants contained in this Section 3 are\nreasonable and are necessary and essential to protect the business, trade secrets, Company Confidential Information, and goodwill of the Company. I\nfurther acknowledge that this Agreement does not restrict my ability to be gainfully employed, and I acknowledge that the geographic boundaries,\nscope of prohibited activities, and time duration of this subsection 3.3 are reasonable in nature and no broader than are necessary to protect the\nlegitimate business interests of the Company. I agree not to raise any objection to the reasonableness of this subsection 3.3 in any action\nor\nproceeding to enforce the terms of this Agreement. In order to induce the Company to enter into this Agreement, I covenant and agree that:\n(a) During my employment and for twelve (12) months following the termination of my employment with Company, whether voluntary\nor involuntary, without Company's written express consent, I will not directly or indirectly solicit (other than on behalf of the Company) business or\ncontracts for any products or services of the type provided, developed or under development by the Company during my employment by the\nCompany, from or with (1) any person or entity which was a customer or sales agent of the Company for such products or services as of, or within\none year prior to the my date of termination with the Company, or (2) any prospective customer or sales agent which the Company was soliciting as\nof, or within one year prior to my termination. Additionally, during my employment and for twelve (12) months thereafter, I will not directly or\nindirectly contract with any such customer, prospective customer, sales agent or prospective sales agent for any product or service of the type\nprovided,\ndeveloped\nor\nwhich\nwas\nunder\ndevelopment\nby\nthe\nCompany\nduring\nmy\nemployment\nwith\nthe\nCompany.\nI\nwill\nnot\nduring\nmy\nemployment\nCompany was involved or was contemplating during my employment with the Company, including but not limited to relationships with sales agents, the\nor for twelve (12) months thereafter knowingly interfere or attempt to interfere with any transaction, agreement or business relationship in which\nindependent sales agents, customers, prospective customers, contractors, vendors, service providers, and suppliers.\n(b) During my employment and for 12 months after my employment with Company is terminated for any reason, I agree not to, directly\nor indirectly, solicit,\n4\nrecruit, or hire, or in any manner assist in the hiring, solicitation or recruitment of: (1) any of the Company's employees, or any individuals who\nwere\nemployed by the Company within twelve (12) months of my termination of employment; or (2) any of the Company's sales agents or the\nindependent sales agents of any affiliate of the Company, or any person or entity which was a Company sales agent or independent sales agent of\na\nCompany affiliate within twelve (12) months prior to the termination of my employment with the Company.\n(c) To prevent the misuse, misappropriation, or unauthorized disclosure of Company's trade secrets, including Company Confidential\nInformation, and to protect the goodwill of Company, I will not, during my employment and for twelve (12) months after termination of my\nemployment, without Company's express written consent, directly or indirectly, individually or as an officer, director, employee, shareholder (except\nif as a shareholder of less than 1% of a publicly traded company), consultant, contractor, partner, joint venturer, agent, equity owner, or in any\ncapacity whatsoever, engage in or promote any business or contemplated business that is competitive with the "Company's Business." "Company's\nBusiness" is the research, development, manufacture, sale and/or licensing of products and services related to communications, integrated\ncommunications, long-distance services, Internet access, eCommerce, hardware and software (whether owned or licensed by the Company), and data\nservices, including but not limited to local, domestic, and international long-distance services, local exchange services, wholesale long-distance\nservices, IP/ISP services, high-speed Internet access, DSL services, eCommerce, web hosting, ASP services, data networking, systems integration\nservices, and data communications services, together with any other businesses that Company engages in, plans to engage in or contemplates\nengaging in from the date hereof to the date of termination of my employment.\n3.4. The parties agree that if a Court of competent jurisdiction finds that any term of this Section 3 is for any reason excessively broad in scope\nor duration, such term shall be construed in a manner to enable it to be enforced to the maximum extent possible. Further, the covenants in this\nSection shall be deemed to be a series of separate covenants and agreements, one for each and every region of each state and political division\nworldwide. If, in any judicial proceeding, a court of competent jurisdiction shall refuse to enforce any of the separate covenants deemed included\nherein, then at the option of the Company, wholly unenforceable covenants shall be deemed eliminated from the provision hereof for the purpose of\nsuch proceeding to the extent necessary to permit the remaining separate covenants to be enforced in such proceeding. In addition, if a court or other\nenforcement body finds that any provision of this Agreement may not be enforced as written because of some public policy, I agree that such court\nor enforcement body shall modify and construe such provision to permit its enforcement to the maximum extent permitted by law.\n3.5. Compensation. The Company agrees that if my employment is terminated voluntarily by me, or by the Company without Cause, as\ndefined below for purposes of this Section only, the Company shall, during the one-year period during which the "Additional Covenants" stated in\nsubsections 3.3(a), 3.3(b) and 3.3(c) above are in effect, (i) pay me an amount equal to the annualized base salary paid to me immediately prior\nto\ntermination of my employment, (ii) pay me, if applicable, an amount equal to the total\n5\namount of all commissions paid to me during the twelve-month period immediately preceding the first day of the month of the date of termination of\nmy\nemployment with the Company, (iii) pay me, if applicable, the amount I would have been eligible to receive under the Company's bonus plan for\nthe calendar year of the year in which the termination of my employment occurred, as if I had been an employee of the Company during the entire\napplicable bonus year (i.e., the payment shall not be pro-rated in any manner and any requirements of the bonus plan that I be employed by the\nCompany during all of the calendar year covered by the bonus plan and/or be on the Company's payroll as of the date the bonus payments are\nactually paid out are expressly waived for me in this circumstance), and (iv) count the one-year period during which the "Additional Covenants"\nstated in subsections 3.3(a), 3.3(b), and 3.3(c) above are in effect as one year of service for purposes of calculating the vested portion of any\nCompany stock options that have been granted to me (collectively, the "Non-Competition Compensation"). Payment of my annualized base salary\nshall be made in accordance with the Company's customary payroll practices, and the Company shall be entitled to make any withholdings from\nsuch payments required by law or otherwise authorized by me, except that the Company shal have no obligation to accommodate my request for\ndirect deposit or voluntary deductions for any purposes. Payment of my commission amount (as described above) shall be made in twelve\ninstallments and will be paid to me according to the Company's normal commission payment cycle during the one-year period in which the\n"Additional Covenants" stated in subsections 3.3(a), 3.3(b), and 3.3(c) above are in effect. Payment of my bonus amount (as described above) shall\nbe made in accordance with the Company's established bonus payout practices for the applicable calendar year, and payment shall be made to me at\nthe same time and in the same manner as that calendar year bonus is paid out to the Company's employees generally. Continued payment of my base\nsalary, payment of my commissions and/or bonus, and continued vesting of my stock options, all under this subparagraph, shall not occur if\ntermination of my employment is due to my death, disability, or termination for "Cause," as defined below.\n(a) Enforcement. Should I violate any terms of this Agreement, the Company, in addition to any other remedies available under law, may\ndiscontinue any payments being made to me pursuant to this Agreement and may discontinue any continuing vesting of stock options occurring\npursuant to this Agreement.\n(b) Termination for "Cause." Termination for "Cause" in this subsection 3.5 shall mean termination of my employment with the\nCompany due to: (i) failure or refusal to perform the duties assigned to me, including but not limited to failure to reach assigned goals, quotas and/or\nobjectives; (ii) my refusal to follow the reasonable directives of the Board of Directors or Chief Executive Officer of Company or other\ninsubordination; (iii) conviction or plea of guilty or nolo contendere of a felony, or of a misdemeanor involving dishonesty or violence;\n(iv) misappropriation of any funds or property of the Company; (v) violation of any Company policies; (vi) breach of this Agreement; or\n(vii) commission of any act which could materially injure the business or reputation of, or materially adversely affect the interests, of Company.\n(c) Redundancy.. Notwithstanding the foregoing, the payment of all or any portion (as the case may be) of my Non-Competition\nCompensation pursuant to this\n6\nAgreement will cease if such payment would duplicate continued payments provided pursuant to any prior or subsequent agreement of any kind\nbetween me and the Company.\n3.6. E-Mail. I understand that the Company maintains an electronic mail system, Internet system and related facilities for the purpose of\nbusiness communications. I acknowledge that said systems and related facilities, as well as all electronic communications transmitted thereon,\nare\nCompany\nproperty, that I have no right to or expectation of privacy related to my use of such systems and facilities, and the Company retains the\nright to review any and all electronic mail communications, and my use of Internet and other electronic media, with or without notice, at any time.\n4. Prior Proprietary Information and Conflicting Obligations\nDuring my employment with Company, I agree that I will not knowingly improperly use or disclose any proprietary information or trade\nsecrets of any former employer or other person or entity intended by such person or entity not to be disclosed to Company. I further agree that I will\nnot bring onto Company's premises any unpublished document or proprietary information belonging to any such former employer, person or entity\nunless consented to in writing by such employer, person or entity I agree to inform the Company of any apparent conflicts between my work for\nCompany and any obligations I may have to preserve the confidentiality of another's proprietary information or materials; otherwise, the Company\nmay conclude that no such conflict exists and I agree thereafter to make no such claim against Company. Company shall receive such disclosures\nin\nconfidence and consistent with the objectives of avoiding any conflict of obligations and rights or the appearance of any conflict of interest.\nInventions directly relating and applicable and useful to the Company's business, if any, patented or unpatented, which I made prior to the\ncommencement of my employment with the Company are excluded from the scope of this Agreement. To preclude any possible uncertainty, I have\nset forth on Exhibit 1 (Prior Inventions) attached hereto a complete list of all such Inventions that I have, alone or jointly with others, conceived,\ndeveloped or reduced to practice or caused to be conceived, developed or reduced to practice prior to the commencement of my employment with\nthe Company, that I consider to be my property or the property of third parties and that I wish to have excluded from the scope of this Agreement\n(collectively referred to as "Prior Inventions"). If disclosure of any such Prior Invention would cause me to violate any prior confidentiality\nagreement, I understand that I am not to list such Prior Inventions in Exhibit 1 but am only to disclose a cursory name for each such invention,\na\nlisting of the party(ies) to whom it belongs and the fact that full disclosure as to such inventions has not been made for that reason. A space is\nprovided on Exhibit 1 for such purpose. If no such disclosure is attached, I represent that there are no such Prior Inventions. If, in\nthe\ncourse\nof\nmy\nemployment with the Company, I incorporate a Prior Invention into a Company product, test, service or process, the Company is hereby granted and\nshall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to\nmake, have made, modify, use and sell such Prior Invention. Notwithstanding the foregoing, I agree that I will not incorporate, or permit to be\nincorporated, Prior Inventions in any Company Inventions without the Company's prior written consent.\n7\nI represent that, to the best of my knowledge, my performance of all of the terms of this Agreement and as an employee of the Company does\nnot and will not breach any agreement to keep in confidence proprietary information acquired by me prior to my employment by the Company.\nFurther, I represent that, to the best of my knowledge, the performance of my duties with the Company will not breach any contractual or other legal\nobligation I have to any third person.\n5. Ideas and Inventions\n5.1. I agree that any and all intellectual properties, including, but not limited to, all ideas, concepts, themes, inventions, designs, tests,\nprocedures, research methods, improvements, discoveries, developments, formulas, patterns, devices, processes, software programs, hardware\ninformation, engineering and other information related to the integration of hardware and software, software program codes, logic diagrams, flow\ncharts, decision charts, drawings, procedural diagrams, coding sheets, documentation manuals, technical data, client, customer and supplier lists, and\ncompilations of information, records, and specifications, and other matters constituting trade secrets or Company Confidential Information, that\nrelate in any way to the actual or prospective business of the Company or to any experimental or developmental work carried on by Company, and\nthat are conceived, developed or written by me, either individually or jointly in collaboration with others during my employment, and all designs,\nplans, reports, specifications, drawings, inventions, processes, test data and/or other information or items produced by me while performing my\nduties for the Company, shall belong to and be the sole and exclusive property of Company, are "works for hire", and to the extent they are not\n"'works for hire", I hereby assign all of my rights, title and interest in such intellectual properties to the Company, including without limitation, all\npatent, copyright or trade secret rights therein.\n5.2. I further agree to assist Company in obtaining patents on all inventions, designs, improvements and discoveries that are patentable, or\ncopyright\nregistrations\non\nall\nworks\nof\nauthorship,\nand\nto\nexecute\nall\ndocuments\nand\ndo\nall\nthings\nnecessary\nto\nvest\nCompany\nwith\nfull\nand\nexclusive\ntitle and protect against infringement by others. I agree to give the Company or its designees all assistance reasonably required to perfect such rights\nprovided that following termination of my employment, the Company shall reimburse me for my reasonable time and expense in assisting with such\nmatters. I further agree that if the Company is unable, after reasonable effort, to secure my signature on any such papers, any executive officer of the\nCompany shall be entitled to execute any such papers as my agent and attorney-in-fact, and I hereby irrevocably designate and appoint each\nexecutive officer of the Company as my agent and attorney-in-fact to execute any such papers on my behalf, and to take any and all actions as the\nCompany may deem necessary or desirable in order to protect its rights and interests in any work, under the conditions described in this sentence. I\npromise and agree that I will promptly and fully inform the Company of and disclose to Company all intellectual properties described in Section 5.1\nabove that I make during my employment with Company, whether individually or jointly in collaboration with others, that pertain or\n8\nrelate to the actual or potential business of Company or to any experimental or developmental work carried on by Company, whether or not\nconceived during regular working hours. I agree to make full disclosure to Company immediately after creating or making any of the intellectual\nproperties identified in Section 5.1, and shall thereafter keep Company fully informed at all times of all progress in connection therewith. I also\npromise and agree that I will promptly disclose to Company all patent applications filed by me or on my behalf within a year after termination of my\nemployment that relate to or concern actual or contemplated business of the Company.\n5.3. Moral Rights. I understand that the term "moral rights" means any rights of attribution or integrity, including any right to claim authorship\nof a copyrightable work, to object to a modification of such copyrightable work, and any similar right existing under the judicial or statutory law\nof\nany country in the world or under any treaty, regardless of whether or not such right is denominated or generally referred to as a "moral right." I\nforever hereby waive and agree never to assert any moral rights I may have in any copyrightable work that is assigned to Company as a result of this\nSection, even after any termination of my employment with Company.\n6. "At Will" Nature of Relationship\nNothing herein shall be construed as constituting an agreement, understanding or commitment of any kind that the Company shall continue to\nemploy me for any period of time. I hereby acknowledge and agree that my employment with the Company is and shall be "at will," terminable by\nme or by the Company at any time with or without cause and with or without notice. Without limiting the generality of the foregoing, I acknowledge\nthat I will be subject to immediate dismissal for any breach of this Agreement.\n7. Enforcement\nI acknowledge and agree that the restrictions contained in this Agreement are reasonable and necessary to protect the business, trade secrets,\nConfidential Information, goodwill and other interests of the Company and that any violation of these restrictions would cause the Company\nsubstantial irreparable injury. Accordingly, I agree that a remedy at law for any breach of the covenants or other obligations in this Agreement would\nbe inadequate and that the Company, in addition to any other remedies available, shall be entitled to obtain preliminary and permanent injunctive\nrelief to secure specific performance of such covenants and to prevent a breach or threatened breach of this Agreement without the necessity\nof\nproving actual damage and without the necessity of posting bond or security, which I expressly waive. I will provide the Company a full accounting\nof all proceeds and profits received by me as a result of or in connection with a breach of this Agreement. Unless prohibited by law, the Company\nshall have the right to retain any amounts otherwise payable by the Company to me to satisfy any of my obligations as a result of any breach of this\nAgreement. I hereby agree to indemnify and hold harmless the Company from and against any damages incurred by the Company as assessed by a\ncourt of competent jurisdiction as a result of any breach of this Agreement by me. I agree that each of my obligations specified in this Agreement is a\nseparate and independent covenant that shall survive termination of my employment for any reason and that the unenforceability of any of them shall\nnot preclude the enforcement of any other covenants in this Agreement.\n9\n8. Notification of New Employer\nIn the event that I leave the employ of Company, voluntarily or involuntarily, I agree to inform any subsequent employer of my rights and\nobligations under this Agreement I further hereby authorize Company to notify my new employer about my rights and obligations under this\nagreement. The foregoing consent is limited to the delivery by Company to my new employer a signed copy of this Agreement, and any written\nmodifications thereto, and not to any characterization thereof made by Company.\n9. Choice of Law\nThis Agreement and its terms will be construed, enforced and governed by the laws of the State of Delaware without regard to conflict or\nchoice of law rules or other principles that might otherwise refer construction or interpretation of this Agreement to the substantive law of a\njurisdiction other than Delaware.\n10. Forum Selection\nWith regard to any claims, complaints or proceedings brought related to my obligations under this Agreement, at all times each party hereto\n(a) irrevocably submits to the exclusive jurisdiction of any New York court or Federal court sitting in the State of New York in any action or\nproceeding arising out of or relating to this Agreement or the transactions contemplated hereby, and irrevocably agrees that all claims in respect of\nany\nsuch action or proceeding may be heard and determined in such New York or Federal court; (b) to the extent permitted by law irrevocably\nconsents to the service of any and all process in any such action or proceeding by the mailing of copies of such process to such party at the address\nspecified at the end of this Agreement; (c) to the extent permitted by law irrevocably confirms that service of process out of such courts in such\nmanner shall be deemed due service upon such party for the purposes of such action or proceeding; (d) to the extent permitted by law irrevocably\nwaives (i) any objection such party may have to the laying of venue of any such action or proceeding in any of such courts, or (ii) any claim that\nsuch party may have that any such action or proceeding has been brought in an inconvenient forum; and (e) to the extent permitted by law\nirrevocably agrees that a final nonappealable judgment in any such action or proceeding shall be conclusive and may be enforced in other\njurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Section 10 shall affect the right of any party hereto to\nserve legal process in any manner permitted by law.\n11. Successors and Assigns\nThis Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and permitted assigns, including\nany corporation or entity with which or into which the Company may be merged or which may succeed to its assets or business, provided, however,\nthat my obligations, as an employee, are personal and shall not be assigned by me.\n10\n12. General Terms\nThis is my entire agreement with Company with respect to its subject matter, superseding any prior oral or written, express or implied\nnegotiations and agreements. This Agreement may not be changed in any respect except by a written agreement signed by both myself and an officer\nof Company. If any provision of the Agreement is held to be invalid, illegal or unenforceable for any reason, the validity, legality and enforceability\nof\nthe\nremaining provisions will not in any way be affected or impaired thereby. The delay or omission by the Company or me in exercising its/my\nrights under this Agreement, or the failure of either party to insist on strict compliance with any of the terms, covenants, or conditions of this\nAgreement by the other party, shall not be deemed a waiver of any terms, covenants or conditions of this Agreement, nor shall any waiver or\nrelinquishment of any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all times or any other\ntime. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or\nsubstance of any section of this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be deemed an\noriginal, and all of which together shall constitute one and the same instrument. It is the express intention and agreement of the parties hereto that all\ncovenants, agreements and statements made by any party in this Agreement shall survive the execution and delivery of this Agreement. In addition,\nthe\ncovenants, agreements and statements made in this Agreement shall survive termination of my employment with the Company for any reason.\nBy my signature below, I acknowledge that I have reviewed this Agreement carefully and understand that the covenants and obligations\nit\ncontains are binding on me.\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Senior Vice President Confidentiality, Non-Solicitation and\nNon-Competition Agreement as of the - day of , 20_. 20\nEMPLOYEE\nSignature\nPrinted Name\nHome Address\nSocial Security #\nDivision/Company/Location\nExhibit 1 attached hereto:\nYes\nNo\nPAETEC COMMUNICATIONS, INC.\nBy:\nJolanda Chesonis\nVice President of Human Resources\n11\nEXHIBIT 1\nPRIOR INVENTIONS\nThis Exhibit 1 sets forth a complete list of all Inventions that I have, alone or jointly with others, conceived, developed or reduced to practice\nor\ncaused to be conceived, developed or reduced to practice prior to the commencement of my Employment with the Company, that I consider to be\nmy property or the property of third parties and that I wish to have excluded from the scope of the Senior Vice President Confidentiality, Non-\nSolicitation and Non-Competition Agreement ("Agreement") (collectively referred to as "Prior Inventions").\nI\nunderstand that if disclosure of any such Prior Invention would cause me to violate any prior confidentiality agreement, I am not to list such\nPrior Inventions in this Exhibit 1 but am only to disclose a cursory name for each such invention, a listing of the party(ies) to whom it belongs and\nthe fact that full disclosure as to such inventions has not been made for that reason. A space is provided below for such purpose.\nIf no such disclosure is attached, I represent that there are no Prior Inventions.\nDescription of Prior Inventions And Related Documents (if applicable):\nName of\nTitle and Description\nDate of\nOwners of\nWitness(es) to\nof Invention And Related Document\nInvention/ Document\nInvention/Document\nInvention/ Document\nIf no information is listed herein, I hereby affirm that I do not have any such prior intellectual properties, inventions or other works to identify.\nSignature\nName\nDate	EX-10.1 2 dex101.htm FORM OF SENIOR VICE PRESIDENT CONFIDENTIALITY\nExhibit 10.1\nPAETEC COMMUNICATIONS, INC.\nSENIOR VICE PRESIDENT CONFIDENTIALITY, NON-SOLICITATION AND\nNON-COMPETITION AGREEMENT\nThis Senior Vice President Confidentiality, Non-Solicitation and Non-Competition Agreement (this “Agreement”) is entered into as of the date\nset forth on the signature page hereto between PAETEC Communications, Inc., a Delaware corporation, including any subsidiary, successor or\naffiliate of the Company with which I work (collectively, the “Company”), and\n(“I” or “me”)).\nWHEREAS, the Company now has and expects to develop confidential and proprietary materials and highly sensitive information of\nimmeasurable value, which I recognize must be carefully protected as set forth below for the Company to be successful;\nNOW, THEREFORE, to induce the Company to employ me and in consideration of my employment or continued employment by the\nCompany and other good and valuable consideration the sufficiency of which I expressly acknowledge, the Company and I hereby agree, intending\nto be legally bound, as follows:\n1. Company Confidential Materials and Information\nThe following materials and information, whether having existed, now existing, or to be developed or created during the term of my\nemployment by Company (herein referred to collectively as the “Company Confidential Information”) are covered by this Senior Vice President\nConfidentiality, Non-Solicitation and Non-Competition Agreement (“Agreement”):\n1.1. Products and Services. All information to which the Company gave me access, all information disclosed to me by the Company, and all\ninformation developed for the Company by me, alone or with others, that directly or indirectly relates to the business, products and/or services that\nthe Company engages in, plans to engage in or contemplates engaging in, including but not limited to research, development, manufacture, sale\nand/or licensing of products and services related to communications, integrated communications, long-distance services, Internet access,\neCommerce, hardware and software (whether owned or licensed by the Company), and data services, including but not limited to local, domestic,\nand international long-distance services, local exchange services, wholesale long-distance services, IP/ISP services, high-speed Internet access, DSL\nservices, eCommerce, web hosting, ASP services, data networking, systems integration services, and data communications services and other\nproprietary products or services, whether existing or in any stage of research and development (such as trade secrets, inventions, ideas, methods,\ntechnical and laboratory data, engineering data and information, engineering information related to the integration of communications devices and\nequipment, benchmark test results, processes, design specifications, algorithms, technical data, technical formulas, engineering data, processes,\nmanufacturing data, procedures, techniques, methodologies, information processing processes, and strategies).\n1.2. Business and Marketing Procedures and Customer Information. All information concerning or relating to the way Company conducts its\nbusiness, markets\nits products and services, and all information relating to any Company customers and sales agents or prospective customers and sales agents (such as\ninternal business procedures, business strategies, marketing plans and strategies, controls, plans, licensing techniques and practices, supplier,\nsubcontractor and prime contractor names and contracts and other vendor information, customer information and requirements, sales agent\ninformation, computer system passwords and other computer security controls, financial information, distributor information, information supplied\nby clients and customers of Company and employee data).\n1.3. Not Generally Known. Any information in addition to the foregoing which is not generally known to the public or within the industry or\ntrade areas in which Company competes, through no fault of mine, which gives the Company any advantage over its competitors.\n1.4. Third-Party Information. Any information that is confidential and proprietary to a third party that the Company has and in the future will\nreceive from such third party subject to the Company’s duty to maintain the confidentiality of such information and to use it for certain limited\npurposes.\n1.5. All Physical Embodiments of Products, Services, Business, Marketing, Customer and Other Information. All the physical embodiments of\nall of the information included in Sections 1.1, 1.2, 1.3 and 1.4 above, including but not limited to research programs, research data, testing data,\nsoftware, compositions, compounds, hardware, works of authorship, source code, other computer code, correspondence, check lists, samples, forms,\nledgers, financial data, financial statements, financial reports, forecasts and projections, discounts, margins, costs, credit terms, pricing practices,\npricing policies and procedures, goals and objectives, quoting practices, quoting procedures and policies, financial and operational analyses and\nstudies, management reports of every kind, databases, employment records pertaining to employees other than myself, customer data including\ncustomer lists, contracts, representatives, requirements and needs, specifications, data provided by or about prospective, existing or past customers\nand contract terms applicable to such customers, engineering notebooks, notes, drawings, work sheets, schematics, load modules, schematics,\nannotations, flow charts, logic diagrams, procedural diagrams, coding sheets, requirements, proposals, instructor manuals, course materials, video\ncassettes, transparencies, slides, presentations, proposals, printouts, studies, contracts, maintenance manuals, operational manuals, documentation,\nlicense agreements, marketing practices, marketing policies and procedures, marketing plans and strategies, marketing reports, strategic business\nplans, marketing analyses, seminar and class attendee rosters, trade show or exhibit attendee listings, listings of customer leads, and any other written\nor machine-readable expressions of such information as are fixed in any tangible media.\n1.6. Trade Secrets. I acknowledge and agree that the Company Confidential Information identified in paragraphs 1.1, 1.2, 1.3 and 1.5, above,\nconstitutes trade secrets of the Company.\n2\n2. General Knowledge\nThe general skills, knowledge and experience gained during my employment with Company, and information publicly available or generally\nknown within the industry or trade areas in which the Company competes, are not considered Company Confidential Information.\n3. Employee Obligations\nDuring my employment with Company, I acknowledge and agree that I will have access to and become acquainted with Company Confidential\nInformation and materials, including its trade secrets, and will occupy a position of trust and confidence with respect to Company’s affairs, business\nand customer goodwill, and Company Confidential Information. I acknowledge and agree that the interests afforded protection by this Agreement\nare Company’s legitimate business interests, deserving of protection. I further acknowledge that the Company would not have entered into or\ncontinued its employment relationship with me without my execution of and agreement to this Agreement. I agree to take the following steps to\npreserve the confidential and proprietary nature of Company Confidential Information and materials and to preserve the Company’s goodwill:\n3.1. Non-Disclosure. During and after my employment with Company, I will not misuse, misappropriate, disclose or transfer in writing, orally\nor by electronic means, any Company Confidential Information, directly or indirectly, to any other person, or use Company Confidential Information\nin any way, except as is required in the course of my employment with Company, nor will I accept any employment or other professional\nengagement that likely will result in the use or disclosure, even if inadvertent, of Company Confidential Information. I further agree that Company\nConfidential Information includes information or material received by Company from others, including its affiliates, and intended by the Company\nto be kept in confidence by its recipients. I understand that I am not allowed to sell, license or otherwise exploit any products (including hardware or\nsoftware in any form) which embody or otherwise exploit in whole or in part any Company Confidential Information or materials. I acknowledge\nand agree that the sale, misappropriation, or unauthorized use or disclosure in writing, orally or by electronic means, at any time of Company\nConfidential Information obtained by me during the course of my employment constitutes unfair competition. I agree and promise not to engage in\nany unfair competition with Company, either during my employment or at any other time thereafter. I further acknowledge and agree that the\nCompany’s products and services can be developed and marketed nationwide, and therefore, the protection afforded the Company must likewise be\nnationwide.\n3.2. Preservation, Removal and Return of Information. I agree to take all reasonable steps to preserve the confidential and proprietary nature of\nCompany Confidential Information and to prevent the inadvertent or accidental disclosure of Company Confidential Information. I acknowledge and\nagree that all Company Confidential Information, whether prepared by me or otherwise coming into my possession while I am employed by the\nCompany, shall remain the exclusive property of Company. I agree that during my employment with the Company and thereafter, I will not use,\ndisclose, transfer, or remove from the Company’s premises any Company\n3\nConfidential Information other than as authorized by the Company. I agree to return to the Company all Company Confidential Information and\ncopies thereof, in whatever form, at any time upon the request of the Company, and at the time of my termination of employment for any reason. I\nagree not to retain any copies of any Company Confidential Information and Company-owned materials after my termination of employment for any\nreason whatsoever. My obligations under this Section 3 shall continue after termination of my employment with the Company.\n3.3. Additional Covenants. I acknowledge the highly competitive nature of the industry in which the Company is involved, and I acknowledge\nthat: my services to the Company will be special and unique; my work for the Company will allow me access to the Company Confidential\nInformation, including trade secrets, and customers; the Company’s business is conducted throughout the United States and over the Internet and\nWorld Wide Web, enabling the Company and me to regularly provide services to customers nationwide; the Company would not have entered into\nthis Agreement but for the covenants and agreements contained in this Section 3; and the agreements and covenants contained in this Section 3 are\nreasonable and are necessary and essential to protect the business, trade secrets, Company Confidential Information, and goodwill of the Company. I\nfurther acknowledge that this Agreement does not restrict my ability to be gainfully employed, and I acknowledge that the geographic boundaries,\nscope of prohibited activities, and time duration of this subsection 3.3 are reasonable in nature and no broader than are necessary to protect the\nlegitimate business interests of the Company. I agree not to raise any objection to the reasonableness of this subsection 3.3 in any action or\nproceeding to enforce the terms of this Agreement. In order to induce the Company to enter into this Agreement, I covenant and agree that:\n(a) During my employment and for twelve (12) months following the termination of my employment with Company, whether voluntary\nor involuntary, without Company’s written express consent, I will not directly or indirectly solicit (other than on behalf of the Company) business or\ncontracts for any products or services of the type provided, developed or under development by the Company during my employment by the\nCompany, from or with (1) any person or entity which was a customer or sales agent of the Company for such products or services as of, or within\none year prior to the my date of termination with the Company, or (2) any prospective customer or sales agent which the Company was soliciting as\nof, or within one year prior to my termination. Additionally, during my employment and for twelve (12) months thereafter, I will not directly or\nindirectly contract with any such customer, prospective customer, sales agent or prospective sales agent for any product or service of the type\nprovided, developed or which was under development by the Company during my employment with the Company. I will not during my employment\nor for twelve (12) months thereafter knowingly interfere or attempt to interfere with any transaction, agreement or business relationship in which the\nCompany was involved or was contemplating during my employment with the Company, including but not limited to relationships with sales agents,\nindependent sales agents, customers, prospective customers, contractors, vendors, service providers, and suppliers.\n(b) During my employment and for 12 months after my employment with Company is terminated for any reason, I agree not to, directly\nor indirectly, solicit,\n4\nrecruit, or hire, or in any manner assist in the hiring, solicitation or recruitment of: (1) any of the Company’s employees, or any individuals who were\nemployed by the Company within twelve (12) months of my termination of employment; or (2) any of the Company’s sales agents or the\nindependent sales agents of any affiliate of the Company, or any person or entity which was a Company sales agent or independent sales agent of a\nCompany affiliate within twelve (12) months prior to the termination of my employment with the Company.\n(c) To prevent the misuse, misappropriation, or unauthorized disclosure of Company’s trade secrets, including Company Confidential\nInformation, and to protect the goodwill of Company, I will not, during my employment and for twelve (12) months after termination of my\nemployment, without Company’s express written consent, directly or indirectly, individually or as an officer, director, employee, shareholder (except\nif as a shareholder of less than 1% of a publicly traded company), consultant, contractor, partner, joint venturer, agent, equity owner, or in any\ncapacity whatsoever, engage in or promote any business or contemplated business that is competitive with the “Company’s Business.” “Company’s\nBusiness” is the research, development, manufacture, sale and/or licensing of products and services related to communications, integrated\ncommunications, long-distance services, Internet access, eCommerce, hardware and software (whether owned or licensed by the Company), and data\nservices, including but not limited to local, domestic, and international long-distance services, local exchange services, wholesale long-distance\nservices, IP/ISP services, high-speed Internet access, DSL services, eCommerce, web hosting, ASP services, data networking, systems integration\nservices, and data communications services, together with any other businesses that Company engages in, plans to engage in or contemplates\nengaging in from the date hereof to the date of termination of my employment.\n3.4. The parties agree that if a Court of competent jurisdiction finds that any term of this Section 3 is for any reason excessively broad in scope\nor duration, such term shall be construed in a manner to enable it to be enforced to the maximum extent possible. Further, the covenants in this\nSection shall be deemed to be a series of separate covenants and agreements, one for each and every region of each state and political division\nworldwide. If, in any judicial proceeding, a court of competent jurisdiction shall refuse to enforce any of the separate covenants deemed included\nherein, then at the option of the Company, wholly unenforceable covenants shall be deemed eliminated from the provision hereof for the purpose of\nsuch proceeding to the extent necessary to permit the remaining separate covenants to be enforced in such proceeding. In addition, if a court or other\nenforcement body finds that any provision of this Agreement may not be enforced as written because of some public policy, I agree that such court\nor enforcement body shall modify and construe such provision to permit its enforcement to the maximum extent permitted by law.\n3.5. Compensation. The Company agrees that if my employment is terminated voluntarily by me, or by the Company without Cause, as\ndefined below for purposes of this Section only, the Company shall, during the one-year period during which the “Additional Covenants” stated in\nsubsections 3.3(a), 3.3(b) and 3.3(c) above are in effect, (i) pay me an amount equal to the annualized base salary paid to me immediately prior to\ntermination of my employment, (ii) pay me, if applicable, an amount equal to the total\n5\namount of all commissions paid to me during the twelve-month period immediately preceding the first day of the month of the date of termination of\nmy employment with the Company, (iii) pay me, if applicable, the amount I would have been eligible to receive under the Company’s bonus plan for\nthe calendar year of the year in which the termination of my employment occurred, as if I had been an employee of the Company during the entire\napplicable bonus year (i.e., the payment shall not be pro-rated in any manner and any requirements of the bonus plan that I be employed by the\nCompany during all of the calendar year covered by the bonus plan and/or be on the Company’s payroll as of the date the bonus payments are\nactually paid out are expressly waived for me in this circumstance), and (iv) count the one-year period during which the “Additional Covenants”\nstated in subsections 3.3(a), 3.3(b), and 3.3(c) above are in effect as one year of service for purposes of calculating the vested portion of any\nCompany stock options that have been granted to me (collectively, the “Non-Competition Compensation”). Payment of my annualized base salary\nshall be made in accordance with the Company’s customary payroll practices, and the Company shall be entitled to make any withholdings from\nsuch payments required by law or otherwise authorized by me, except that the Company shall have no obligation to accommodate my request for\ndirect deposit or voluntary deductions for any purposes. Payment of my commission amount (as described above) shall be made in twelve\ninstallments and will be paid to me according to the Company’s normal commission payment cycle during the one-year period in which the\n“Additional Covenants” stated in subsections 3.3(a), 3.3(b), and 3.3(c) above are in effect. Payment of my bonus amount (as described above) shall\nbe made in accordance with the Company’s established bonus payout practices for the applicable calendar year, and payment shall be made to me at\nthe same time and in the same manner as that calendar year bonus is paid out to the Company’s employees generally. Continued payment of my base\nsalary, payment of my commissions and/or bonus, and continued vesting of my stock options, all under this subparagraph, shall not occur if\ntermination of my employment is due to my death, disability, or termination for “Cause,” as defined below.\n(a) Enforcement. Should I violate any terms of this Agreement, the Company, in addition to any other remedies available under law, may\ndiscontinue any payments being made to me pursuant to this Agreement and may discontinue any continuing vesting of stock options occurring\npursuant to this Agreement.\n(b) Termination for “Cause.” Termination for “Cause” in this subsection 3.5 shall mean termination of my employment with the\nCompany due to: (i) failure or refusal to perform the duties assigned to me, including but not limited to failure to reach assigned goals, quotas and/or\nobjectives; (ii) my refusal to follow the reasonable directives of the Board of Directors or Chief Executive Officer of Company or other\ninsubordination; (iii) conviction or plea of guilty or nolo contendere of a felony, or of a misdemeanor involving dishonesty or violence;\n(iv) misappropriation of any funds or property of the Company; (v) violation of any Company policies; (vi) breach of this Agreement; or\n(vii) commission of any act which could materially injure the business or reputation of, or materially adversely affect the interests, of Company.\n(c) Redundancy. Notwithstanding the foregoing, the payment of all or any portion (as the case may be) of my Non-Competition\nCompensation pursuant to this\n6\nAgreement will cease if such payment would duplicate continued payments provided pursuant to any prior or subsequent agreement of any kind\nbetween me and the Company.\n3.6. E -Mail. I understand that the Company maintains an electronic mail system, Internet system and related facilities for the purpose of\nbusiness communications. I acknowledge that said systems and related facilities, as well as all electronic communications transmitted thereon, are\nCompany property, that I have no right to or expectation of privacy related to my use of such systems and facilities, and the Company retains the\nright to review any and all electronic mail communications, and my use of Internet and other electronic media, with or without notice, at any time.\n4. Prior Proprietary Information and Conflicting Obligations\nDuring my employment with Company, I agree that I will not knowingly improperly use or disclose any proprietary information or trade\nsecrets of any former employer or other person or entity intended by such person or entity not to be disclosed to Company. I further agree that I will\nnot bring onto Company’s premises any unpublished document or proprietary information belonging to any such former employer, person or entity\nunless consented to in writing by such employer, person or entity. I agree to inform the Company of any apparent conflicts between my work for\nCompany and any obligations I may have to preserve the confidentiality of another’s proprietary information or materials; otherwise, the Company\nmay conclude that no such conflict exists and I agree thereafter to make no such claim against Company. Company shall receive such disclosures in\nconfidence and consistent with the objectives of avoiding any conflict of obligations and rights or the appearance of any conflict of interest.\nInventions directly relating and applicable and useful to the Company’s business, if any, patented or unpatented, which I made prior to the\ncommencement of my employment with the Company are excluded from the scope of this Agreement. To preclude any possible uncertainty, I have\nset forth on Exhibit 1 (Prior Inventions) attached hereto a complete list of all such Inventions that I have, alone or jointly with others, conceived,\ndeveloped or reduced to practice or caused to be conceived, developed or reduced to practice prior to the commencement of my employment with\nthe Company, that I consider to be my property or the property of third parties and that I wish to have excluded from the scope of this Agreement\n(collectively referred to as “Prior Inventions”). If disclosure of any such Prior Invention would cause me to violate any prior confidentiality\nagreement, I understand that I am not to list such Prior Inventions in Exhibit 1 but am only to disclose a cursory name for each such invention, a\nlisting of the party(ies) to whom it belongs and the fact that full disclosure as to such inventions has not been made for that reason. A space is\nprovided on Exhibit 1 for such purpose. If no such disclosure is attached, I represent that there are no such Prior Inventions. If, in the course of my\nemployment with the Company, I incorporate a Prior Invention into a Company product, test, service or process, the Company is hereby granted and\nshall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with rights to sublicense through multiple tiers of sublicensees) to\nmake, have made, modify, use and sell such Prior Invention. Notwithstanding the foregoing, I agree that I will not incorporate, or permit to be\nincorporated, Prior Inventions in any Company Inventions without the Company’s prior written consent.\n7\nI represent that, to the best of my knowledge, my performance of all of the terms of this Agreement and as an employee of the Company does\nnot and will not breach any agreement to keep in confidence proprietary information acquired by me prior to my employment by the Company.\nFurther, I represent that, to the best of my knowledge, the performance of my duties with the Company will not breach any contractual or other legal\nobligation I have to any third person.\n5. Ideas and Inventions\n5.1. I agree that any and all intellectual properties, including, but not limited to, all ideas, concepts, themes, inventions, designs, tests,\nprocedures, research methods, improvements, discoveries, developments, formulas, patterns, devices, processes, software programs, hardware\ninformation, engineering and other information related to the integration of hardware and software, software program codes, logic diagrams, flow\ncharts, decision charts, drawings, procedural diagrams, coding sheets, documentation manuals, technical data, client, customer and supplier lists, and\ncompilations of information, records, and specifications, and other matters constituting trade secrets or Company Confidential Information, that\nrelate in any way to the actual or prospective business of the Company or to any experimental or developmental work carried on by Company, and\nthat are conceived, developed or written by me, either individually or jointly in collaboration with others during my employment, and all designs,\nplans, reports, specifications, drawings, inventions, processes, test data and/or other information or items produced by me while performing my\nduties for the Company, shall belong to and be the sole and exclusive property of Company, are “works for hire”, and to the extent they are not\n“works for hire”, I hereby assign all of my rights, title and interest in such intellectual properties to the Company, including without limitation, all\npatent, copyright or trade secret rights therein.\n5.2. I further agree to assist Company in obtaining patents on all inventions, designs, improvements and discoveries that are patentable, or\ncopyright registrations on all works of authorship, and to execute all documents and do all things necessary to vest Company with full and exclusive\ntitle and protect against infringement by others. I agree to give the Company or its designees all assistance reasonably required to perfect such rights\nprovided that following termination of my employment, the Company shall reimburse me for my reasonable time and expense in assisting with such\nmatters. I further agree that if the Company is unable, after reasonable effort, to secure my signature on any such papers, any executive officer of the\nCompany shall be entitled to execute any such papers as my agent and attorney-in-fact, and I hereby irrevocably designate and appoint each\nexecutive officer of the Company as my agent and attorney-in-fact to execute any such papers on my behalf, and to take any and all actions as the\nCompany may deem necessary or desirable in order to protect its rights and interests in any work, under the conditions described in this sentence. I\npromise and agree that I will promptly and fully inform the Company of and disclose to Company all intellectual properties described in Section 5.1\nabove that I make during my employment with Company, whether individually or jointly in collaboration with others, that pertain or\n8\nrelate to the actual or potential business of Company or to any experimental or developmental work carried on by Company, whether or not\nconceived during regular working hours. I agree to make full disclosure to Company immediately after creating or making any of the intellectual\nproperties identified in Section 5.1, and shall thereafter keep Company fully informed at all times of all progress in connection therewith. I also\npromise and agree that I will promptly disclose to Company all patent applications filed by me or on my behalf within a year after termination of my\nemployment that relate to or concern actual or contemplated business of the Company.\n5.3. Moral Rights. I understand that the term “moral rights” means any rights of attribution or integrity, including any right to claim authorship\nof a copyrightable work, to object to a modification of such copyrightable work, and any similar right existing under the judicial or statutory law of\nany country in the world or under any treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right.” I\nforever hereby waive and agree never to assert any moral rights I may have in any copyrightable work that is assigned to Company as a result of this\nSection, even after any termination of my employment with Company.\n6. “At Will” Nature of Relationship\nNothing herein shall be construed as constituting an agreement, understanding or commitment of any kind that the Company shall continue to\nemploy me for any period of time. I hereby acknowledge and agree that my employment with the Company is and shall be “at will,” terminable by\nme or by the Company at any time with or without cause and with or without notice. Without limiting the generality of the foregoing, I acknowledge\nthat I will be subject to immediate dismissal for any breach of this Agreement.\n7. Enforcement\nI acknowledge and agree that the restrictions contained in this Agreement are reasonable and necessary to protect the business, trade secrets,\nConfidential Information, goodwill and other interests of the Company and that any violation of these restrictions would cause the Company\nsubstantial irreparable injury. Accordingly, I agree that a remedy at law for any breach of the covenants or other obligations in this Agreement would\nbe inadequate and that the Company, in addition to any other remedies available, shall be entitled to obtain preliminary and permanent injunctive\nrelief to secure specific performance of such covenants and to prevent a breach or threatened breach of this Agreement without the necessity of\nproving actual damage and without the necessity of posting bond or security, which I expressly waive. I will provide the Company a full accounting\nof all proceeds and profits received by me as a result of or in connection with a breach of this Agreement. Unless prohibited by law, the Company\nshall have the right to retain any amounts otherwise payable by the Company to me to satisfy any of my obligations as a result of any breach of this\nAgreement. I hereby agree to indemnify and hold harmless the Company from and against any damages incurred by the Company as assessed by a\ncourt of competent jurisdiction as a result of any breach of this Agreement by me. I agree that each of my obligations specified in this Agreement is a\nseparate and independent covenant that shall survive termination of my employment for any reason and that the unenforceability of any of them shall\nnot preclude the enforcement of any other covenants in this Agreement.\n9\n8. Notification of New Employer\nIn the event that I leave the employ of Company, voluntarily or involuntarily, I agree to inform any subsequent employer of my rights and\nobligations under this Agreement. I further hereby authorize Company to notify my new employer about my rights and obligations under this\nagreement. The foregoing consent is limited to the delivery by Company to my new employer a signed copy of this Agreement, and any written\nmodifications thereto, and not to any characterization thereof made by Company.\n9. Choice of Law\nThis Agreement and its terms will be construed, enforced and governed by the laws of the State of Delaware without regard to conflict or\nchoice of law rules or other principles that might otherwise refer construction or interpretation of this Agreement to the substantive law of a\njurisdiction other than Delaware.\n10. Forum Selection\nWith regard to any claims, complaints or proceedings brought related to my obligations under this Agreement, at all times each party hereto\n(a) irrevocably submits to the exclusive jurisdiction of any New York court or Federal court sitting in the State of New York in any action or\nproceeding arising out of or relating to this Agreement or the transactions contemplated hereby, and irrevocably agrees that all claims in respect of\nany such action or proceeding may be heard and determined in such New York or Federal court; (b) to the extent permitted by law irrevocably\nconsents to the service of any and all process in any such action or proceeding by the mailing of copies of such process to such party at the address\nspecified at the end of this Agreement; (c) to the extent permitted by law irrevocably confirms that service of process out of such courts in such\nmanner shall be deemed due service upon such party for the purposes of such action or proceeding; (d) to the extent permitted by law irrevocably\nwaives (i) any objection such party may have to the laying of venue of any such action or proceeding in any of such courts, or (ii) any claim that\nsuch party may have that any such action or proceeding has been brought in an inconvenient forum; and (e) to the extent permitted by law\nirrevocably agrees that a final nonappealable judgment in any such action or proceeding shall be conclusive and may be enforced in other\njurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Section 10 shall affect the right of any party hereto to\nserve legal process in any manner permitted by law.\n11. Successors and Assigns\nThis Agreement shall be binding upon and inure to the benefit of both parties and their respective successors and permitted assigns, including\nany corporation or entity with which or into which the Company may be merged or which may succeed to its assets or business, provided, however,\nthat my obligations, as an employee, are personal and shall not be assigned by me.\n10\n12. General Terms\nThis is my entire agreement with Company with respect to its subject matter, superseding any prior oral or written, express or implied\nnegotiations and agreements. This Agreement may not be changed in any respect except by a written agreement signed by both myself and an officer\nof Company. If any provision of the Agreement is held to be invalid, illegal or unenforceable for any reason, the validity, legality and enforceability\nof the remaining provisions will not in any way be affected or impaired thereby. The delay or omission by the Company or me in exercising its/my\nrights under this Agreement, or the failure of either party to insist on strict compliance with any of the terms, covenants, or conditions of this\nAgreement by the other party, shall not be deemed a waiver of any terms, covenants or conditions of this Agreement, nor shall any waiver or\nrelinquishment of any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all times or any other\ntime. The captions of the sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or\nsubstance of any section of this Agreement. This Agreement may be executed in one or more counterparts, each of which shall be deemed an\noriginal, and all of which together shall constitute one and the same instrument. It is the express intention and agreement of the parties hereto that all\ncovenants, agreements and statements made by any party in this Agreement shall survive the execution and delivery of this Agreement. In addition,\nthe covenants, agreements and statements made in this Agreement shall survive termination of my employment with the Company for any reason.\nBy my signature below, I acknowledge that I have reviewed this Agreement carefully and understand that the covenants and obligations it\ncontains are binding on me.\nIN WITNESS WHEREOF, the parties hereto have executed and delivered this Senior Vice President Confidentiality, Non-Solicitation and\nNon-Competition Agreement as of the day of\n,20\n.\nEMPLOYEE\nSignature\nPrinted Name\nHome Address\nSocial Security #\nDivision/Company/Location\nExhibit 1 attached hereto:\nYes\nNo\nPAETEC COMMUNICATIONS, INC.\nBy:\nJolanda Chesonis\nVice President of Human Resources\n11\nEXHIBIT 1\nPRIOR INVENTIONS\nThis Exhibit 1 sets forth a complete list of all Inventions that I have, alone or jointly with others, conceived, developed or reduced to practice\nor caused to be conceived, developed or reduced to practice prior to the commencement of my Employment with the Company, that I consider to be\nmy property or the property of third parties and that I wish to have excluded from the scope of the Senior Vice President Confidentiality, Non-\nSolicitation and Non-Competition Agreement (“Agreement”) (collectively referred to as “Prior Inventions”).\nI understand that if disclosure of any such Prior Invention would cause me to violate any prior confidentiality agreement, I am not to list such\nPrior Inventions in this Exhibit 1 but am only to disclose a cursory name for each such invention, a listing of the party(ies) to whom it belongs and\nthe fact that full disclosure as to such inventions has not been made for that reason. A space is provided below for such purpose.\nIf no such disclosure is attached, I represent that there are no Prior Inventions.\nDescription of Prior Inventions And Related Documents (if applicable):\nTitle and Description\nof Invention And Related Document\nDate of\nInvention/ Document\nOwners of\nInvention/Document\nName of\nWitness(es) to\nInvention/ Document\nIf no information is listed herein, I hereby affirm that I do not have any such prior intellectual properties, inventions or other works to identify.\nSignature\nName\nDate
+e0d6825deb5a5292ec233e2f27445b7a.pdf	effective_date jurisdiction party term	EX-10.(III)A(72) 9 dex10iiia72.htm CONFIDENTIALITY AND RESTRICTIVE COVENANTS AGREEMENT\nExhibit 10(iii)A(72)\nEXECUTION COPY\nCONFIDENTIALITY AND\nRESTRICTIVE COVENANTS AGREEMENT\nTHIS AGREEMENT (the “Agreement”) is entered into this 23rd day of July, 2007, between Acuity Brands, Inc. (“Acuity”) and Acuity Brands\nLighting, Inc. f/k/a Acuity Lighting Group, Inc. (“ABL”) (Acuity and ABL are collectively referred to as the “Company”) and John K. Morgan\n(“Executive”).\nReasons for this Agreement: Executive is currently employed as President and Chief Executive Officer of ABL and as an Executive Vice President\nof Acuity pursuant to an amended and restated employment letter agreement dated August 1, 2005 (“Prior Agreement”) between Executive and the\nCompany. Simultaneously herewith, Executive is entering into a further amended and restated employment letter agreement (the “Employment\nAgreement”), which sets forth the terms and conditions of Executive’s employment with Acuity and Executive’s election as President and Chief\nExecutive Officer of Acuity Specialty Products Group, Inc. (“ASP”). Executive and the Company acknowledge that Acuity is contemplating a\ncorporate restructuring of Acuity and a subsequent distribution by Acuity of the stock of ASP (or a successor to ASP’s business and operations) to\nthe stockholders of Acuity (the “Spinoff”). The parties also recognize that the restructuring and Spinoff are subject to final approval of the Board of\nDirectors of Acuity after satisfaction of certain conditions. After the Spinoff, Executive will serve as Chairman, President and Chief Executive\nOfficer of ASP and will cease to be employed by Acuity and ABL.\nAcknowledgements: The Company and Executive agree that during Executive’s relationship with the Company, Executive has learned and has had\naccess to important proprietary information related to ABL’s Business, as defined below. Executive acknowledges that such proprietary information\nis not generally available to the public and includes information about ABL’s customers, systems, operations, finances, suppliers, and business.\nExecutive further acknowledges that such proprietary information has been and was developed through ABL’s expenditure of substantial effort, time\nand money; and together with relationships developed by Executive with customers, employees, and suppliers, could be used to compete unfairly\nwith ABL.\nExecutive acknowledges that during the period of his employment as President and Chief Executive Officer of Acuity Brands Lighting, Inc. and\nExecutive Vice President of Acuity Brands, Inc., he has rendered executive, strategic and managerial services, including the Executive Services, to\nand for Acuity and ABL throughout the United States, which are special, unusual, extraordinary, and of peculiar value to Acuity and ABL. Executive\nfurther acknowledges that the services he performed on behalf of Acuity and ABL, including the Executive Services, were at a senior managerial\nlevel and were not limited in their territorial scope to any particular city, state, or region, but instead had nationwide impact throughout the United\nStates. Executive further acknowledges and agrees that: (a) Acuity and ABL’s business is, at the very least, national in scope; and (b) these\nrestrictions are reasonable and necessary to protect the Confidential Information, business relationships, and goodwill of Acuity and ABL.\nIn consideration for the Company’s agreement to provide the benefits described below, the sufficiency of which is acknowledged, the Company and\nExecutive agree:\n1) Definitions: For this Agreement, the following terms shall have the meaning specified below:\na) ABL’s Business shall mean the manufacture and/or sale of one or more of the following classes of product: lighting fixtures, electric\nlinear modular lighting systems comprised of plug-in relocatable modular wiring components, emergency lighting fixtures and systems\n(comprised of exit signs, emergency light units, back-up power battery packs, and combinations thereof), electric lighting track units,\ncast aluminum historically styled lighting poles, flexible wiring systems and components (namely, flexible branch circuits, attachment\nplugs, receptacles, connectors and fittings), lighting control systems intended to be used for switching, monitoring, and dimming\nelectrical lighting, the manufacture and sale of all of the above classes of product and includes Confidential Information regarding the\nmanufacture and sale of all of the above classes of product.\nb) Confidential Information shall mean any information, without regard to form, relating to ABL’s customers, operations, finances, and\nbusiness that derives economic value, actual or potential, from not being generally known to other Persons, including but not limited to\ntechnical or non-technical data, compilations (including compilations of customer information), programs, methods, devices, techniques,\nprocesses, financial data, pricing methodology, formulas, patterns, strategies, studies, business development, software systems,\nmarketing techniques and lists of actual or potential customers (including identifying information about customers), whether or not in\nwriting. Confidential Information includes information disclosed to ABL by third parties that ABL is obligated to maintain as\nconfidential. Confidential Information subject to this Agreement may include information that is not a trade secret under applicable law,\nbut information not constituting a trade secret only shall be treated as Confidential Information under this Agreement for a two-year\nperiod after the Effective Date.\nc) Customers shall mean customers of ABL that Executive (i) contacted directly or indirectly or otherwise serviced on behalf of ABL\nduring the two-year period preceding the date of this Agreement; or (ii) about whom Executive possessed Confidential Information\nduring the two-year period preceding the date of this Agreement, including, without limitation, The Home Depot, Consolidated\nElectrical Distributors, Graybar Electric, Rexel Inc., and Sonepar USA.\nd) Direct ABL Competitor means the following entities: (1) Cooper Lighting, Inc.; (2) Genlyte Thomas Group LLC; (3) Juno Lighting,\nInc. Schneider; (4) Hubbell Lighting, Inc.; (5) Philips, (6) General Electric, (7) Osram Sylvania, (8) Siemens, as well as any of their\nrespective affiliates, subsidiaries and/or parent companies that are either located or transact business within the United States of America,\nbut only to the extent each, and only with respect to the business operation which, engages in the manufacture and/or sale of one or more\nclasses of products competitive with ABL’s Business.\n2\ne) Effective Date shall mean the earlier of (i) the date on which the Spinoff is effective or (ii) November 30, 2007.\nf) Executive Services means those principal duties and responsibilities that Executive performed on behalf of Acuity and ABL during his\nemployment, within twenty-four (24) months prior to the date of this Agreement, as President and Chief Executive Officer of ABL and\nExecutive Vice President of Acuity, in which capacity Executive: (1) served as a member of a group of Executives responsible for a\nmulti-profit center organization, with responsibility for the profitability of two or more distinct profit centers; (2) developed, coordinated\nand executed efforts directed towards enhancing branding, marketing, and business development capabilities; (3) worked to develop\nstrategic customers and key channels of distribution; (4) coordinated with departmental heads concerning material business issues;\n(5) analyzed operations to pinpoint opportunities and areas that may have needed to be reorganized, down-sized, or eliminated;\n(6) conferred with other Executives to coordinate and prioritize planning concerning material business issues; (7) studied short-term and\nlong-range economic trends and projects, prospects for future growth in overall sales and market share, opportunities for acquisitions or\nexpansion into new product areas; (8) served as a member of the Acuity Leadership Team, reviewing, discussing, evaluating, and\nparticipating in decisions concerning material business and management issues, cost structures, sales and growth opportunities, crisis\nmanagement, strategic prospects, personnel issues, litigation matters, leadership goals, and performance targets; and (9) provided support\nand analysis for key leadership analysis requirements.\ng) Person shall mean any individual, corporation, partnership, association, unincorporated organization or other entity.\nh) Territory shall mean the territory of the United States. Executive acknowledges that ABL is licensed to do business and in fact does\nbusiness in all fifty states in the United States.\n2) Consideration: On or about the date of this Agreement, Acuity and ASP have entered into the Employment Agreement with Executive. This\nAgreement shall not become effective until the Employment Agreement has been fully executed. As provided in the Employment Agreement, Acuity\nhas made or will make a Restricted Stock Award to Executive, which will vest annually over 3 years commencing one year from the grant date,\nunless earlier vested as provided in Paragraph 4.5 of the Employment Agreement. As consideration for this Agreement, in the event of the Spinoff\nand the effectiveness of this Agreement, a portion of the Restricted Stock shall become vested on the date of the Spinoff, as provided in the\nEmployment Agreement. Acuity and ASP have agreed there is separate consideration for the Employment Agreement between them and Executive.\nIn addition, Acuity is offering Executive employment as President and Chief Executive Officer of ASP in return, in part, for Executive’s agreement\nto execute this Agreement with the Company.\n3\n3) Confidential Information:\na) Company Trade Secrets: Executive shall hold in strictest confidence and shall not use, except for the benefit of Company and ASP, any\ntrade secrets of Company, as that term is defined under applicable law.\nb) Company Confidential Information: During employment with ABL and for two years after the Effective Date, Executive shall hold in\nstrictest confidence and shall not use, except for the benefit of the Company and ASP, any Confidential Information of Company.\n4) Solicitation of Employees: For two years after the Effective Date of this Agreement, Executive will not, directly or indirectly, for himself or on\nbehalf of any other Person, solicit, induce, persuade, or encourage, or attempt to solicit, induce, persuade, or encourage, any employee of the\nCompany to terminate such employee’s position with the Company, whether or not such employee is a full-time or temporary employee of the\nCompany and whether or not such employment is pursuant to a written agreement, for a determined period or at will. This provision shall apply to\nthose employees with whom Executive had material contact or about whom he possessed confidential information during the two-year period before\nthe Effective Date.\n5) Non-Competition: Executive agrees that for two years after the Effective Date, he will not, directly or indirectly, engage in, provide, or perform\nany of the Executive Services on behalf of any Direct ABL Competitor in the Territory. This provision will not prohibit Executive from working for\na Direct ABL Competitor in a product area that is not competitive with ABL’s Business, as defined above.\n6) Non-Solicitation: For two years after the Effective Date, the Executive will not, directly or indirectly, solicit Customers for the purpose of\nproviding goods and services competitive with ABL’s Business. The goods and services currently being offered by ASP are not considered to be\ncompetitive with ABL’s Business, and this provision therefore does not prohibit Executive from soliciting Customers for the purpose of providing\nsuch goods and services on behalf of ASP.\n7) Non-Solicitation of Agencies: For two years after the Effective Date, the Executive will not, directly or indirectly, solicit the lighting agencies, or\nany principal or employee of such lighting agencies (the “Agencies”) through which ABL has sold its products and services within the twelve-month\nperiod before the Effective Date for the purpose of providing goods and services competitive with ABL’s Business. This provision is limited to\nAgencies with whom Executive had material contact or about which Executive had Confidential Information during the twelve-month period\npreceding the date of this Agreement.\n8) Relief: Because any breach of this Agreement by Executive would result in continuing material and irreparable harm to the Company, and\nbecause it would be difficult or impossible to establish the full monetary value of such damage, the Company shall be entitled to injunctive\n4\nrelief in the event of Executive’s breach of this Agreement. Injunctive relief is in addition to any other available remedy. In the event that it shall\nbecome necessary for either party to retain the services of an attorney to enforce any terms under this Agreement, the prevailing party, in addition to\nall other rights and remedies hereunder or as provided by law, shall be entitled to reasonable attorneys’ fees and related court costs and expenses.\n9) Agreement Binding: This Agreement shall inure to the benefit of the Company and its successors and assignees, and shall be binding upon\nExecutive and Executive’s heirs, administrators, executors, and personal representatives.\n10) Nonwaiver: The Company’s failure to insist upon strict performance of any term or to exercise any right shall not be construed as a waiver or a\nrelinquishment for the future of such term or right, which shall continue in full force and effect.\n11) Governing Law; Exclusive Jurisdiction and Venue: This Agreement shall be governed by the laws of the State of Georgia. The Company may\nseek temporary or preliminary injunctive relief against Executive in any court with proper jurisdiction with respect to any and all preliminary\ninjunctive or restraining procedures pertaining to this Agreement or the breach thereof.\n12) Interpretations; Severability: Rights and restrictions in this Agreement may be exercised and are applicable only to the extent they do not\nviolate any applicable laws, and are intended to be limited or modified to the extent necessary so they will not render this Agreement illegal, invalid,\nor unenforceable. If any term shall be held illegal, invalid, or unenforceable by a court of competent jurisdiction, the remaining terms shall remain in\nfull force and effect. This Agreement does not in any way limit the Company’s rights under the laws of unfair competition, trade secret, copyright,\npatent, trademark, or any other applicable law, which are in addition to rights under this Agreement. The existence of a claim by Executive, whether\npredicated on this Agreement or otherwise, shall not constitute a defense to the Company’s enforcement of this Agreement.\n(REMAINDER OF PAGE IS DELIBERATELY LEFT BLANK)\n5\nIN WITNESS WHEREOF, Acuity and ABL have caused this Agreement to be executed by their duly authorized officers and Executive has\nexecuted this Agreement, as of the date first written above.\nACUITY BRANDS, INC.\nBy:\n/s/ Vernon J. Nagel\nName: Vernon J. Nagel\nTitle: Chairman, President, and Chief\nExecutive Officer\nACUITY BRANDS LIGHTING, INC.\nBy:\n/s/ Vernon J. Nagel\nName: Vernon J. Nagel\nTitle: Chairman, President, and Chief\nExecutive Officer\n“Executive”\nBy:\n/s/ John K. Morgan\nName: John K. Morgan\nEmployee Address:\n6	EX-10.(IIT)A(72) 9 dex10iiia72.htm CONFIDENTIALITY AND RESTRICTIVE COVENANTS AGREEMENT\nExhibit 10(iii)A(72)\nEXECUTION COPY\nCONFIDENTIALITY AND\nRESTRICTIVE COVENANTS AGREEMENT\nTHIS AGREEMENT (the “Agreement”) is entered into this 23™ day of July, 2007, between Acuity Brands, Inc. (“Acuity”) and Acuity Brands\nLighting, Inc. f/k/a Acuity Lighting Group, Inc. (“ABL”) (Acuity and ABL are collectively referred to as the “Company”) and John K. Morgan\n(“Executive”).\nReasons for this Agreement: Executive is currently employed as President and Chief Executive Officer of ABL and as an Executive Vice President\nof Acuity pursuant to an amended and restated employment letter agreement dated August 1, 2005 (“Prior Agreement”) between Executive and the\nCompany. Simultaneously herewith, Executive is entering into a further amended and restated employment letter agreement (the “Employment\nAgreement”), which sets forth the terms and conditions of Executive’s employment with Acuity and Executive’s election as President and Chief\nExecutive Officer of Acuity Specialty Products Group, Inc. (“ASP”). Executive and the Company acknowledge that Acuity is contemplating a\ncorporate restructuring of Acuity and a subsequent distribution by Acuity of the stock of ASP (or a successor to ASP’s business and operations) to\nthe stockholders of Acuity (the “Spinoff”). The parties also recognize that the restructuring and Spinoff are subject to final approval of the Board of\nDirectors of Acuity after satisfaction of certain conditions. After the Spinoff, Executive will serve as Chairman, President and Chief Executive\nOfficer of ASP and will cease to be employed by Acuity and ABL.\nAcknowledgements: The Company and Executive agree that during Executive’s relationship with the Company, Executive has learned and has had\naccess to important proprietary information related to ABL’s Business, as defined below. Executive acknowledges that such proprietary information\nis not generally available to the public and includes information about ABL’s customers, systems, operations, finances, suppliers, and business.\nExecutive further acknowledges that such proprietary information has been and was developed through ABL’s expenditure of substantial effort, time\nand money; and together with relationships developed by Executive with customers, employees, and suppliers, could be used to compete unfairly\nwith ABL.\nExecutive acknowledges that during the period of his employment as President and Chief Executive Officer of Acuity Brands Lighting, Inc. and\nExecutive Vice President of Acuity Brands, Inc., he has rendered executive, strategic and managerial services, including the Executive Services, to\nand for Acuity and ABL throughout the United States, which are special, unusual, extraordinary, and of peculiar value to Acuity and ABL. Executive\nfurther acknowledges that the services he performed on behalf of Acuity and ABL, including the Executive Services, were at a senior managerial\nlevel and were not limited in their territorial scope to any particular city, state, or region, but instead had nationwide impact throughout the United\nStates. Executive further acknowledges and agrees that: (a) Acuity and ABL’s business is, at the very least, national in scope; and (b) these\nrestrictions are reasonable and necessary to protect the Confidential Information, business relationships, and goodwill of Acuity and ABL.\nIn consideration for the Company’s agreement to provide the benefits described below, the sufficiency of which is acknowledged, the Company and Executive agree: 1) Definitions: For this Agreement, the following terms shall have the meaning specified below: a)\nb)\nd)\nABL’s Business shall mean the manufacture and/or sale of one or more of the following classes of product: lighting fixtures, electric\nlinear modular lighting systems comprised of plug-in relocatable modular wiring components, emergency lighting fixtures and systems\n(comprised of exit signs, emergency light units, back-up power battery packs, and combinations thereof), electric lighting track units,\ncast aluminum historically styled lighting poles, flexible wiring systems and components (namely, flexible branch circuits, attachment\nplugs, receptacles, connectors and fittings), lighting control systems intended to be used for switching, monitoring, and dimming\nelectrical lighting, the manufacture and sale of all of the above classes of product and includes Confidential Information regarding the\nmanufacture and sale of all of the above classes of product.\nConfidential Information shall mean any information, without regard to form, relating to ABL’s customers, operations, finances, and\nbusiness that derives economic value, actual or potential, from not being generally known to other Persons, including but not limited to\ntechnical or non-technical data, compilations (including compilations of customer information), programs, methods, devices, techniques,\nprocesses, financial data, pricing methodology, formulas, patterns, strategies, studies, business development, software systems,\nmarketing techniques and lists of actual or potential customers (including identifying information about customers), whether or not in\nwriting. Confidential Information includes information disclosed to ABL by third parties that ABL is obligated to maintain as\nconfidential. Confidential Information subject to this Agreement may include information that is not a trade secret under applicable law,\nbut information not constituting a trade secret only shall be treated as Confidential Information under this Agreement for a two-year\nperiod after the Effective Date.\nCustomers shall mean customers of ABL that Executive (i) contacted directly or indirectly or otherwise serviced on behalf of ABL\nduring the two-year period preceding the date of this Agreement; or (ii) about whom Executive possessed Confidential Information\nduring the two-year period preceding the date of this Agreement, including, without limitation, The Home Depot, Consolidated\nElectrical Distributors, Graybar Electric, Rexel Inc., and Sonepar USA.\nDirect ABL Competitor means the following entities: (1) Cooper Lighting, Inc.; (2) Genlyte Thomas Group LLC; (3) Juno Lighting,\nInc. Schneider; (4) Hubbell Lighting, Inc.; (5) Philips, (6) General Electric, (7) Osram Sylvania, (8) Siemens, as well as any of their\nrespective affiliates, subsidiaries and/or parent companies that are either located or transact business within the United States of America,\nbut only to the extent each, and only with respect to the business operation which, engages in the manufacture and/or sale of one or more\nclasses of products competitive with ABL’s Business.\nf)\ng\nh)\nEffective Date shall mean the earlier of (i) the date on which the Spinoff is effective or (ii) November 30, 2007.\nExecutive Services means those principal duties and responsibilities that Executive performed on behalf of Acuity and ABL during his\nemployment, within twenty-four (24) months prior to the date of this Agreement, as President and Chief Executive Officer of ABL and\nExecutive Vice President of Acuity, in which capacity Executive: (1) served as a member of a group of Executives responsible for a\nmulti-profit center organization, with responsibility for the profitability of two or more distinct profit centers; (2) developed, coordinated\nand executed efforts directed towards enhancing branding, marketing, and business development capabilities; (3) worked to develop\nstrategic customers and key channels of distribution; (4) coordinated with departmental heads concerning material business issues;\n(5) analyzed operations to pinpoint opportunities and areas that may have needed to be reorganized, down-sized, or eliminated;\n(6) conferred with other Executives to coordinate and prioritize planning concerning material business issues; (7) studied short-term and\nlong-range economic trends and projects, prospects for future growth in overall sales and market share, opportunities for acquisitions or\nexpansion into new product areas; (8) served as a member of the Acuity Leadership Team, reviewing, discussing, evaluating, and\nparticipating in decisions concerning material business and management issues, cost structures, sales and growth opportunities, crisis\nmanagement, strategic prospects, personnel issues, litigation matters, leadership goals, and performance targets; and (9) provided support\nand analysis for key leadership analysis requirements.\nPerson shall mean any individual, corporation, partnership, association, unincorporated organization or other entity.\nTerritory shall mean the territory of the United States. Executive acknowledges that ABL is licensed to do business and in fact does\nbusiness in all fifty states in the United States.\n2) Consideration: On or about the date of this Agreement, Acuity and ASP have entered into the Employment Agreement with Executive. This Agreement shall not become effective until the Employment Agreement has been fully executed. As provided in the Employment Agreement, Acuity has made or will make a Restricted Stock Award to Executive, which will vest annually over 3 years commencing one year from the grant date, unless earlier vested as provided in Paragraph 4.5 of the Employment Agreement. As consideration for this Agreement, in the event of the Spinoff and the effectiveness of this Agreement, a portion of the Restricted Stock shall become vested on the date of the Spinoff, as provided in the Employment Agreement. Acuity and ASP have agreed there is separate consideration for the Employment Agreement between them and Executive. In addition, Acuity is offering Executive employment as President and Chief Executive Officer of ASP in return, in part, for Executive’s agreement to execute this Agreement with the Company.\f3) Confidential Information:\na) Company Trade Secrets: Executive shall hold in strictest confidence and shall not use, except for the benefit of Company and ASP, any\ntrade secrets of Company, as that term is defined under applicable law.\nb) Company Confidential Information: During employment with ABL and for two years after the Effective Date, Executive shall hold in\nstrictest confidence and shall not use, except for the benefit of the Company and ASP, any Confidential Information of Company.\n4) Solicitation of Employees: For two years after the Effective Date of this Agreement, Executive will not, directly or indirectly, for himself or on\nbehalf of any other Person, solicit, induce, persuade, or encourage, or attempt to solicit, induce, persuade, or encourage, any employee of the\nCompany to terminate such employee’s position with the Company, whether or not such employee is a full-time or temporary employee of the\nCompany and whether or not such employment is pursuant to a written agreement, for a determined period or at will. This provision shall apply to\nthose employees with whom Executive had material contact or about whom he possessed confidential information during the two-year period before\nthe Effective Date.\n5) Non-Competition: Executive agrees that for two years after the Effective Date, he will not, directly or indirectly, engage in, provide, or perform\nany of the Executive Services on behalf of any Direct ABL Competitor in the Territory. This provision will not prohibit Executive from working for\na Direct ABL Competitor in a product area that is not competitive with ABL’s Business, as defined above.\n6) Non-Solicitation: For two years after the Effective Date, the Executive will not, directly or indirectly, solicit Customers for the purpose of\nproviding goods and services competitive with ABL’s Business. The goods and services currently being offered by ASP are not considered to be\ncompetitive with ABL’s Business, and this provision therefore does not prohibit Executive from soliciting Customers for the purpose of providing\nsuch goods and services on behalf of ASP.\n7) Non-Solicitation of Agencies: For two years after the Effective Date, the Executive will not, directly or indirectly, solicit the lighting agencies, or\nany principal or employee of such lighting agencies (the “Agencies”) through which ABL has sold its products and services within the twelve-month\nperiod before the Effective Date for the purpose of providing goods and services competitive with ABL’s Business. This provision is limited to\nAgencies with whom Executive had material contact or about which Executive had Confidential Information during the twelve-month period\npreceding the date of this Agreement.\n8) Relief: Because any breach of this Agreement by Executive would result in continuing material and irreparable harm to the Company, and\nbecause it would be difficult or impossible to establish the full monetary value of such damage, the Company shall be entitled to injunctive\n4\nrelief in the event of Executive’s breach of this Agreement. Injunctive relief is in addition to any other available remedy. In the event that it shall\nbecome necessary for either party to retain the services of an attorney to enforce any terms under this Agreement, the prevailing party, in addition to\nall other rights and remedies hereunder or as provided by law, shall be entitled to reasonable attorneys’ fees and related court costs and expenses.\n9) Agreement Binding: This Agreement shall inure to the benefit of the Company and its successors and assignees, and shall be binding upon\nExecutive and Executive’s heirs, administrators, executors, and personal representatives.\n10) Nonwaiver: The Company’s failure to insist upon strict performance of any term or to exercise any right shall not be construed as a waiver or a\nrelinquishment for the future of such term or right, which shall continue in full force and effect.\n11) Governing Law; Exclusive Jurisdiction and Venue: This Agreement shall be governed by the laws of the State of Georgia. The Company may\nseek temporary or preliminary injunctive relief against Executive in any court with proper jurisdiction with respect to any and all preliminary\ninjunctive or restraining procedures pertaining to this Agreement or the breach thereof.\n12) Interpretations; Severability: Rights and restrictions in this Agreement may be exercised and are applicable only to the extent they do not\nviolate any applicable laws, and are intended to be limited or modified to the extent necessary so they will not render this Agreement illegal, invalid,\nor unenforceable. If any term shall be held illegal, invalid, or unenforceable by a court of competent jurisdiction, the remaining terms shall remain in\nfull force and effect. This Agreement does not in any way limit the Company’s rights under the laws of unfair competition, trade secret, copyright,\npatent, trademark, or any other applicable law, which are in addition to rights under this Agreement. The existence of a claim by Executive, whether\npredicated on this Agreement or otherwise, shall not constitute a defense to the Company’s enforcement of this Agreement.\n(REMAINDER OF PAGE IS DELIBERATELY LEFT BLANK)\nIN WITNESS WHEREOF, Acuity and ABL have caused this Agreement to be executed by their duly authorized officers and Executive has\nexecuted this Agreement, as of the date first written above.\nACUITY BRANDS, INC.\nBy: /s/ Vernon J. Nagel\nName: Vernon J. Nagel\nTitle: Chairman, President, and Chief\nExecutive Officer\nACUITY BRANDS LIGHTING, INC.\nBy: /s/ Vernon J. Nagel\nName: Vernon J. Nagel\nTitle: Chairman, President, and Chief\nExecutive Officer\n“Executive”\nBy: /s/ John K. Morgan\nName: John K. Morgan\nEmployee Address:	EX-10.(III)A(72) 9 dex10iiia72.htm CONFIDENTIALITY AND RESTRICTIVE COVENANTS AGREEMENT\nExhibit 10(iii)A(72)\nEXECUTION COPY\nCONFIDENTIALITY AND\nRESTRICTIVE COVENANTS AGREEMENT\nTHIS AGREEMENT (the "Agreement") is entered into this 23rd day of July, 2007, between Acuity Brands, Inc. ("Acuity") and Acuity Brands\nLighting, Inc. f/k/a Acuity Lighting Group, Inc. ("ABL") (Acuity and ABL are collectively referred to as the "Company") and John K. Morgan\n("Executive").\nReasons for this Agreement: Executive is currently employed as President and Chief Executive Officer of ABL and as an Executive Vice President\nof Acuity pursuant to an amended and restated employment letter agreement dated August 1, 2005 ("Prior Agreement") between Executive and the\nCompany. Simultaneously herewith, Executive is entering into a further amended and restated employment letter agreement (the "Employment\nAgreement"), which sets forth the terms and conditions of Executive's employment with Acuity and Executive's election as President and Chief\nExecutive Officer of Acuity Specialty Products Group, Inc. ("ASP"). Executive and the Company acknowledge that Acuity is contemplating a\ncorporate restructuring of Acuity and a subsequent distribution by Acuity of the stock of ASP (or a successor to ASP's business and operations) to\nthe\nstockholders of Acuity (the "Spinoff"). The parties also recognize that the restructuring and Spinoff are subject to final approval of the Board of\nDirectors of Acuity after satisfaction of certain conditions. After the Spinoff, Executive will serve as Chairman, President and Chief Executive\nOfficer of ASP and will cease to be employed by Acuity and ABL.\nAcknowledgements: The Company and Executive agree that during Executive's relationship with the Company, Executive has learned and has had\naccess to important proprietary information related to ABL's Business, as defined below. Executive acknowledges that such proprietary information\nis not generally available to the public and includes information about ABL's customers, systems, operations, finances, suppliers, and business.\nExecutive further acknowledges that such proprietary information has been and was developed through ABL's expenditure of substantial effort, time\nand money; and together with relationships developed by Executive with customers, employees, and suppliers, could be used to compete unfairly\nwith ABL.\nExecutive acknowledges that during the period of his employment as President and Chief Executive Officer of Acuity Brands Lighting, Inc. and\nExecutive Vice President of Acuity Brands, Inc., he has rendered executive, strategic and managerial services, including the Executive Services,\nto\nand for Acuity and ABL throughout the United States, which are special, unusual, extraordinary, and of peculiar value to Acuity and ABL. Executive\nfurther acknowledges that the services he performed on behalf of Acuity and ABL, including the Executive Services, were at a senior managerial\nlevel\nand\nwere\nnot\nlimited\nin\ntheir\nterritorial\nscope\nto\nany\nparticular\ncity,\nstate,\nor\nregion,\nbut\ninstead\nhad\nnationwide\nimpact\nthroughout\nthe\nUnited\nStates. Executive further acknowledges and agrees that: (a) Acuity and ABL's business is, at the very least, national in scope; and (b) these\nrestrictions are reasonable and necessary to protect the Confidential Information, business relationships, and goodwill of Acuity and ABL.\nIn consideration for the Company's agreement to provide the benefits described below, the sufficiency of which is acknowledged, the Company and\nExecutive agree:\n1) Definitions: For this Agreement, the following terms shall have the meaning specified below:\na)\nABL's Business shall mean the manufacture and/or sale of one or more of the following classes of product: lighting fixtures, electric\nlinear modular lighting systems comprised of plug-in relocatable modular wiring components, emergency lighting fixtures\nand\nsystems\n(comprised of exit signs, emergency light units, back-up power battery packs, and combinations thereof), electric lighting track units,\ncast aluminum historically styled lighting poles, flexible wiring systems and components (namely, flexible branch circuits, attachment\nplugs, receptacles, connectors and fittings), lighting control systems intended to be used for switching, monitoring, and dimming\nelectrical lighting, the manufacture and sale of all of the above classes of product and includes Confidential Information regarding the\nmanufacture and sale of all of the above classes of product.\nb) Confidential Information shall mean any information, without regard to form, relating to ABL's customers, operations, finances, and\nbusiness that derives economic value, actual or potential, from not being generally known to other Persons, including but not limited to\ntechnical or non-technical data, compilations (including compilations of customer information), programs, methods, devices, techniques,\nprocesses, financial data, pricing methodology, formulas, patterns, strategies, studies, business development, software systems,\nmarketing techniques and lists of actua or potential customers (including identifying information about customers), whether or not\nin\nwriting. Confidential Information includes information disclosed to ABL by third parties that ABL is obligated to maintain as\nconfidential. Confidential Information subject to this Agreement may include information that is not a trade secret under applicable law,\nbut information not constituting a trade secret only shall be treated as Confidential Information under this Agreement for a two-year\nperiod after the Effective Date.\nc)\nCustomers shall mean customers of ABL that Executive (i) contacted directly or indirectly or otherwise serviced on behalf of ABL\nduring the two-year period preceding the date of this Agreement; or (ii) about whom Executive possessed Confidential Information\nduring the two-year period preceding the date of this Agreement, including, without limitation, The Home Depot, Consolidated\nElectrical Distributors, Graybar Electric, Rexel Inc., and Sonepar USA.\nd)\nDirect ABL Competitor means the following entities: (1) Cooper Lighting, Inc.; (2) Genlyte Thomas Group LLC; (3) Juno Lighting,\nInc. Schneider; (4) Hubbell Lighting, Inc.; (5) Philips, (6) General Electric, (7) Osram Sylvania, (8) Siemens, as well as any of their\nrespective affiliates, subsidiaries and/or parent companies that are either located or transact business within the United States of America,\nbut only to the extent each, and only with respect to the business operation which, engages in the manufacture and/or sale of one or more\nclasses of products competitive with ABL's Business.\n2\ne)\nEffective Date shall mean the earlier of (i) the date on which the Spinoff is effective or (ii) November 30, 2007.\nf)\nExecutive Services means those principal duties and responsibilities that Executive performed on behalf of Acuity and ABL during his\nemployment, within twenty-four (24) months prior to the date of this Agreement, as President and Chief Executive Officer of ABL and\nExecutive Vice President of Acuity, in which capacity Executive: (1) served as a member of a group of Executives responsible for a\nmulti-profit center organization, with responsibility for the profitability of two or more distinct profit centers; (2) developed, coordinated\nand executed efforts directed towards enhancing branding, marketing, and business development capabilities; (3) worked to develop\nstrategic customers and key channels of distribution; (4) coordinated with departmental heads concerning material business issues;\n(5) analyzed operations to pinpoint opportunities and areas that may have needed to be reorganized, down-sized, or eliminated;\n(6) conferred with other Executives to coordinate and prioritize planning concerning material business issues; (7) studied short-term and\nlong-range economic trends and projects, prospects for future growth in overall sales and market share, opportunities for acquisitions or\nexpansion into new product areas; (8) served as a member of the Acuity Leadership Team, reviewing, discussing, evaluating, and\nparticipating in decisions concerning material business and management issues, cost structures, sales and growth opportunities, crisis\nmanagement, strategic prospects, personnel issues, litigation matters, leadership goals, and performance targets; and (9) provided support\nand analysis for key leadership analysis requirements.\ng)\nPerson shall mean any individual, corporation, partnership, association, unincorporated organization or other entity.\nh) Territory shall mean the territory of the United States. Executive acknowledges that ABL is licensed to do business and in fact does\nbusiness in all fifty states in the United States.\n2) Consideration: On or about the date of this Agreement, Acuity and ASP have entered into the Employment Agreement with Executive. This\nAgreement shall not become effective until the Employment Agreement has been fully executed. As provided in the Employment Agreement, Acuity\nhas made or will make a Restricted Stock Award to Executive, which will vest annually over 3 years commencing one year from the grant date,\nunless earlier vested as provided in Paragraph 4.5 of the Employment Agreement. As consideration for this Agreement, in the event of the Spinoff\nand the effectiveness of this Agreement, a portion of the Restricted Stock shall become vested on the date of the Spinoff, as provided in the\nEmployment Agreement. Acuity and ASP have agreed there is separate consideration for the Employment Agreement between them and Executive.\nIn addition, Acuity is offering Executive employment as President and Chief Executive Officer of ASP in return, in part, for Executive's agreement\nto execute this Agreement with the Company.\n3\n3) Confidential Information:\na)\nCompany Trade Secrets: Executive shall hold in strictest confidence and shall not use, except for the benefit of Company and ASP, any\ntrade secrets of Company, as that term is defined under applicable law.\nb) Company Confidential Information: During employment with ABL and for two years after the Effective Date, Executive shall hold in\nstrictest confidence and shall not use, except for the benefit of the Company and ASP, any Confidential Information of Company.\n4) Solicitation of Employees: For two years after the Effective Date of this Agreement, Executive will not, directly or indirectly, for himself or on\nbehalf of any other Person, solicit, induce, persuade, or encourage, or attempt to solicit, induce, persuade, or encourage, any employee of the\nCompany to terminate such employee's position with the Company, whether or not such employee is a full-time or temporary employee of the\nCompany and whether or not such employment is pursuant to a written agreement, for a determined period or at will. This provision shall apply to\nthose employees with whom Executive had material contact or about whom he possessed confidential information during the two-year period before\nthe Effective Date.\n5) Non-Competition: Executive agrees that for two years after the Effective Date, he will not, directly or indirectly, engage in, provide, or perform\nany of the Executive Services on behalf of any Direct ABL Competitor in the Territory. This provision will not prohibit Executive from working for\na Direct ABL Competitor in a product area that is not competitive with ABL's Business, as defined above.\n6) Non-Solicitation: For two years after the Effective Date, the Executive will not, directly or indirectly, solicit Customers for the purpose of\nproviding goods and services competitive with ABL's Business. The goods and services currently being offered by ASP are not considered to be\ncompetitive with ABL's Business, and this provision therefore does not prohibit Executive from soliciting Customers for the purpose of providing\nsuch goods and services on behalf of ASP.\n7) Non-Solicitation of Agencies: For two years after the Effective Date, the Executive will not, directly or indirectly, solicit the lighting agencies, or\nany principal or employee of such lighting agencies (the "Agencies") through which ABL has sold its products and services within the twelve-month\nperiod before the Effective Date for the purpose of providing goods and services competitive with ABL's Business. This provision is limited to\nAgencies with whom Executive had material contact or about which Executive had Confidential Information during the twelve-month period\npreceding the date of this Agreement.\n8)\nRelief: Because any breach of this Agreement by Executive would result in continuing material and irreparable harm to the Company, and\nbecause it would be difficult or impossible to establish the full monetary value of such damage, the Company shall be entitled to injunctive\n4\nrelief in the event of Executive's breach of this Agreement. Injunctive relief is in addition to any other available remedy. In the event that it shall\nbecome necessary for either party to retain the services of an attorney to enforce any terms under this Agreement, the prevailing party, in addition\nto\nall other rights and remedies hereunder or as provided by law, shall be entitled to reasonable attorneys' fees and related court costs and expenses.\n9) Agreement Binding: This Agreement shall inure to the benefit of the Company and its successors and assignees, and shall be binding upon\nExecutive and Executive's heirs, administrators, executors, and personal representatives.\n10) Nonwaiver: The Company's failure to insist upon strict performance of any term or to exercise any right shall not be construed as a waiver or\na\nrelinquishment for the future of such term or right, which shall continue in full force and effect.\n11)\nGoverning Law; Exclusive Jurisdiction and Venue: This Agreement shall be governed by the laws of the State of Georgia. The Company may\nseek temporary or preliminary injunctive relief against Executive in any court with proper jurisdiction with respect to any and all preliminary\ninjunctive or restraining procedures pertaining to this Agreement or the breach thereof.\n12) Interpretations; Severability: Rights and restrictions in this Agreement may be exercised and are applicable only to the extent they do not\nviolate any applicable laws, and are intended to be limited or modified to the extent necessary so they will not render this Agreement illegal, invalid,\nor unenforceable. If any term shall be held illegal, invalid, or unenforceable by a court of competent jurisdiction, the remaining terms shall remain\nin\nfull force and effect. This Agreement does not in any way limit the Company's rights under the laws of unfair competition, trade secret, copyright,\npatent, trademark, or any other applicable law, which are in addition to rights under this Agreement. The existence of a claim by Executive, whether\npredicated on this Agreement or otherwise, shall not constitute a defense to the Company's enforcement of this Agreement.\n(REMAINDER OF PAGE IS DELIBERATELY LEFT BLANK)\n5\nIN WITNESS WHEREOF, Acuity and ABL have caused this Agreement to be executed by their duly authorized officers and Executive has\nexecuted this Agreement, as of the date first written above.\nACUITY BRANDS, INC.\nBy:\n/s/ Vernon J. Nagel\nName: Vernon J. Nagel\nTitle: Chairman, President, and Chief\nExecutive Officer\nACUITY BRANDS LIGHTING, INC.\nBy:\n/s/ Vernon J. Nagel\nName: Vernon J. Nagel\nTitle: Chairman, President, and Chief\nExecutive Officer\n"Executive"\nBy:\n/s/ John K. Morgan\nName: John K. Morgan\nEmployee Address:\n6	EX-10.(III)A(72) 9 dex10iiia72.htm CONFIDENTIALITY AND RESTRICTIVE COVENANTS AGREEMENT\nExhibit 10(iii)A(72)\nEXECUTION COPY\nCONFIDENTIALITY AND\nRESTRICTIVE COVENANTS AGREEMENT\nTHIS AGREEMENT (the “Agreement”) is entered into this 23rd day of July, 2007, between Acuity Brands, Inc. (“Acuity”) and Acuity Brands\nLighting, Inc. f/k/a Acuity Lighting Group, Inc. (“ABL”) (Acuity and ABL are collectively referred to as the “Company”) and John K. Morgan\n(“Executive”).\nReasons for this Agreement: Executive is currently employed as President and Chief Executive Officer of ABL and as an Executive Vice President\nof Acuity pursuant to an amended and restated employment letter agreement dated August 1, 2005 (“Prior Agreement”) between Executive and the\nCompany. Simultaneously herewith, Executive is entering into a further amended and restated employment letter agreement (the “Employment\nAgreement”), which sets forth the terms and conditions of Executive’s employment with Acuity and Executive’s election as President and Chief\nExecutive Officer of Acuity Specialty Products Group, Inc. (“ASP”). Executive and the Company acknowledge that Acuity is contemplating a\ncorporate restructuring of Acuity and a subsequent distribution by Acuity of the stock of ASP (or a successor to ASP’s business and operations) to\nthe stockholders of Acuity (the “Spinoff”). The parties also recognize that the restructuring and Spinoff are subject to final approval of the Board of\nDirectors of Acuity after satisfaction of certain conditions. After the Spinoff, Executive will serve as Chairman, President and Chief Executive\nOfficer of ASP and will cease to be employed by Acuity and ABL.\nAcknowledgements: The Company and Executive agree that during Executive’s relationship with the Company, Executive has learned and has had\naccess to important proprietary information related to ABL’s Business, as defined below. Executive acknowledges that such proprietary information\nis not generally available to the public and includes information about ABL’s customers, systems, operations, finances, suppliers, and business.\nExecutive further acknowledges that such proprietary information has been and was developed through ABL’s expenditure of substantial effort, time\nand money; and together with relationships developed by Executive with customers, employees, and suppliers, could be used to compete unfairly\nwith ABL.\nExecutive acknowledges that during the period of his employment as President and Chief Executive Officer of Acuity Brands Lighting, Inc. and\nExecutive Vice President of Acuity Brands, Inc., he has rendered executive, strategic and managerial services, including the Executive Services, to\nand for Acuity and ABL throughout the United States, which are special, unusual, extraordinary, and of peculiar value to Acuity and ABL. Executive\nfurther acknowledges that the services he performed on behalf of Acuity and ABL, including the Executive Services, were at a senior managerial\nlevel and were not limited in their territorial scope to any particular city, state, or region, but instead had nationwide impact throughout the United\nStates. Executive further acknowledges and agrees that: (a) Acuity and ABL’s business is, at the very least, national in scope; and (b) these\nrestrictions are reasonable and necessary to protect the Confidential Information, business relationships, and goodwill of Acuity and ABL.\nIn consideration for the Company’s agreement to provide the benefits described below, the sufficiency of which is acknowledged, the Company and\nExecutive agree:\n1) Definitions: For this Agreement, the following terms shall have the meaning specified below:\na) ABL’s Business shall mean the manufacture and/or sale of one or more of the following classes of product: lighting fixtures, electric\nlinear modular lighting systems comprised of plug-in relocatable modular wiring components, emergency lighting fixtures and systems\n(comprised of exit signs, emergency light units, back-up power battery packs, and combinations thereof), electric lighting track units,\ncast aluminum historically styled lighting poles, flexible wiring systems and components (namely, flexible branch circuits, attachment\nplugs, receptacles, connectors and fittings), lighting control systems intended to be used for switching, monitoring, and dimming\nelectrical lighting, the manufacture and sale of all of the above classes of product and includes Confidential Information regarding the\nmanufacture and sale of all of the above classes of product.\nb) Confidential Information shall mean any information, without regard to form, relating to ABL’s customers, operations, finances, and\nbusiness that derives economic value, actual or potential, from not being generally known to other Persons, including but not limited to\ntechnical or non-technical data, compilations (including compilations of customer information), programs, methods, devices, techniques,\nprocesses, financial data, pricing methodology, formulas, patterns, strategies, studies, business development, software systems,\nmarketing techniques and lists of actual or potential customers (including identifying information about customers), whether or not in\nwriting. Confidential Information includes information disclosed to ABL by third parties that ABL is obligated to maintain as\nconfidential. Confidential Information subject to this Agreement may include information that is not a trade secret under applicable law,\nbut information not constituting a trade secret only shall be treated as Confidential Information under this Agreement for a two-year\nperiod after the Effective Date.\nc) Customers shall mean customers of ABL that Executive (i) contacted directly or indirectly or otherwise serviced on behalf of ABL\nduring the two-year period preceding the date of this Agreement; or (ii) about whom Executive possessed Confidential Information\nduring the two-year period preceding the date of this Agreement, including, without limitation, The Home Depot, Consolidated\nElectrical Distributors, Graybar Electric, Rexel Inc., and Sonepar USA.\nd) Direct ABL Competitor means the following entities: (1) Cooper Lighting, Inc.; (2) Genlyte Thomas Group LLC; (3) Juno Lighting,\nInc. Schneider; (4) Hubbell Lighting, Inc.; (5) Philips, (6) General Electric, (7) Osram Sylvania, (8) Siemens, as well as any of their\nrespective affiliates, subsidiaries and/or parent companies that are either located or transact business within the United States of America,\nbut only to the extent each, and only with respect to the business operation which, engages in the manufacture and/or sale of one or more\nclasses of products competitive with ABL’s Business.\n2\ne) Effective Date shall mean the earlier of (i) the date on which the Spinoff is effective or (ii) November 30, 2007.\nf) Executive Services means those principal duties and responsibilities that Executive performed on behalf of Acuity and ABL during his\nemployment, within twenty-four (24) months prior to the date of this Agreement, as President and Chief Executive Officer of ABL and\nExecutive Vice President of Acuity, in which capacity Executive: (1) served as a member of a group of Executives responsible for a\nmulti-profit center organization, with responsibility for the profitability of two or more distinct profit centers; (2) developed, coordinated\nand executed efforts directed towards enhancing branding, marketing, and business development capabilities; (3) worked to develop\nstrategic customers and key channels of distribution; (4) coordinated with departmental heads concerning material business issues;\n(5) analyzed operations to pinpoint opportunities and areas that may have needed to be reorganized, down-sized, or eliminated;\n(6) conferred with other Executives to coordinate and prioritize planning concerning material business issues; (7) studied short-term and\nlong-range economic trends and projects, prospects for future growth in overall sales and market share, opportunities for acquisitions or\nexpansion into new product areas; (8) served as a member of the Acuity Leadership Team, reviewing, discussing, evaluating, and\nparticipating in decisions concerning material business and management issues, cost structures, sales and growth opportunities, crisis\nmanagement, strategic prospects, personnel issues, litigation matters, leadership goals, and performance targets; and (9) provided support\nand analysis for key leadership analysis requirements.\ng) Person shall mean any individual, corporation, partnership, association, unincorporated organization or other entity.\nh) Territory shall mean the territory of the United States. Executive acknowledges that ABL is licensed to do business and in fact does\nbusiness in all fifty states in the United States.\n2) Consideration: On or about the date of this Agreement, Acuity and ASP have entered into the Employment Agreement with Executive. This\nAgreement shall not become effective until the Employment Agreement has been fully executed. As provided in the Employment Agreement, Acuity\nhas made or will make a Restricted Stock Award to Executive, which will vest annually over 3 years commencing one year from the grant date,\nunless earlier vested as provided in Paragraph 4.5 of the Employment Agreement. As consideration for this Agreement, in the event of the Spinoff\nand the effectiveness of this Agreement, a portion of the Restricted Stock shall become vested on the date of the Spinoff, as provided in the\nEmployment Agreement. Acuity and ASP have agreed there is separate consideration for the Employment Agreement between them and Executive.\nIn addition, Acuity is offering Executive employment as President and Chief Executive Officer of ASP in return, in part, for Executive’s agreement\nto execute this Agreement with the Company.\n3\n3) Confidential Information:\na) Company Trade Secrets: Executive shall hold in strictest confidence and shall not use, except for the benefit of Company and ASP, any\ntrade secrets of Company, as that term is defined under applicable law.\nb) Company Confidential Information: During employment with ABL and for two years after the Effective Date, Executive shall hold in\nstrictest confidence and shall not use, except for the benefit of the Company and ASP, any Confidential Information of Company.\n4) Solicitation of Employees: For two years after the Effective Date of this Agreement, Executive will not, directly or indirectly, for himself or on\nbehalf of any other Person, solicit, induce, persuade, or encourage, or attempt to solicit, induce, persuade, or encourage, any employee of the\nCompany to terminate such employee’s position with the Company, whether or not such employee is a full-time or temporary employee of the\nCompany and whether or not such employment is pursuant to a written agreement, for a determined period or at will. This provision shall apply to\nthose employees with whom Executive had material contact or about whom he possessed confidential information during the two-year period before\nthe Effective Date.\n5) Non-Competition: Executive agrees that for two years after the Effective Date, he will not, directly or indirectly, engage in, provide, or perform\nany of the Executive Services on behalf of any Direct ABL Competitor in the Territory. This provision will not prohibit Executive from working for\na Direct ABL Competitor in a product area that is not competitive with ABL’s Business, as defined above.\n6) Non-Solicitation: For two years after the Effective Date, the Executive will not, directly or indirectly, solicit Customers for the purpose of\nproviding goods and services competitive with ABL’s Business. The goods and services currently being offered by ASP are not considered to be\ncompetitive with ABL’s Business, and this provision therefore does not prohibit Executive from soliciting Customers for the purpose of providing\nsuch goods and services on behalf of ASP.\n7) Non-Solicitation of Agencies: For two years after the Effective Date, the Executive will not, directly or indirectly, solicit the lighting agencies, or\nany principal or employee of such lighting agencies (the “Agencies”) through which ABL has sold its products and services within the twelve-month\nperiod before the Effective Date for the purpose of providing goods and services competitive with ABL’s Business. This provision is limited to\nAgencies with whom Executive had material contact or about which Executive had Confidential Information during the twelve-month period\npreceding the date of this Agreement.\n8) Relief: Because any breach of this Agreement by Executive would result in continuing material and irreparable harm to the Company, and\nbecause it would be difficult or impossible to establish the full monetary value of such damage, the Company shall be entitled to injunctive\n4\nrelief in the event of Executive’s breach of this Agreement. Injunctive relief is in addition to any other available remedy. In the event that it shall\nbecome necessary for either party to retain the services of an attorney to enforce any terms under this Agreement, the prevailing party, in addition to\nall other rights and remedies hereunder or as provided by law, shall be entitled to reasonable attorneys’ fees and related court costs and expenses.\n9) Agreement Binding: This Agreement shall inure to the benefit of the Company and its successors and assignees, and shall be binding upon\nExecutive and Executive’s heirs, administrators, executors, and personal representatives.\n10) Nonwaiver: The Company’s failure to insist upon strict performance of any term or to exercise any right shall not be construed as a waiver or a\nrelinquishment for the future of such term or right, which shall continue in full force and effect.\n11) Governing Law; Exclusive Jurisdiction and Venue: This Agreement shall be governed by the laws of the State of Georgia. The Company may\nseek temporary or preliminary injunctive relief against Executive in any court with proper jurisdiction with respect to any and all preliminary\ninjunctive or restraining procedures pertaining to this Agreement or the breach thereof.\n12) Interpretations; Severability: Rights and restrictions in this Agreement may be exercised and are applicable only to the extent they do not\nviolate any applicable laws, and are intended to be limited or modified to the extent necessary so they will not render this Agreement illegal, invalid,\nor unenforceable. If any term shall be held illegal, invalid, or unenforceable by a court of competent jurisdiction, the remaining terms shall remain in\nfull force and effect. This Agreement does not in any way limit the Company’s rights under the laws of unfair competition, trade secret, copyright,\npatent, trademark, or any other applicable law, which are in addition to rights under this Agreement. The existence of a claim by Executive, whether\npredicated on this Agreement or otherwise, shall not constitute a defense to the Company’s enforcement of this Agreement.\n(REMAINDER OF PAGE IS DELIBERATELY LEFT BLANK)\n5\nIN WITNESS WHEREOF, Acuity and ABL have caused this Agreement to be executed by their duly authorized officers and Executive has\nexecuted this Agreement, as of the date first written above.\nACUITY BRANDS, INC.\nBy:\n/s/ Vernon J. Nagel\nName: Vernon J. Nagel\nTitle: Chairman, President, and Chief\nExecutive Officer\nACUITY BRANDS LIGHTING, INC.\nBy:\n/s/ Vernon J. Nagel\nName: Vernon J. Nagel\nTitle: Chairman, President, and Chief\nExecutive Officer\n“Executive”\nBy:\n/s/ John K. Morgan\nName: John K. Morgan\nEmployee Address:\n6
+e22152ac3ddc7cd28500eb43f77c022a.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 8 d923647dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nNON-DISCLOSURE AGREEMENT\nThis AGREEMENT is effective as of January 12, 2015 (“Effective Date”) by and between Pitney Bowes Inc., a company having a place\nof business at 3001 Summer Street, Stamford, CT 06905 (together with its subsidiaries and other affiliates, “PBI”), and Borderfree, Inc., a\ncompany having a place of business at 292 Madison Avenue, 5th Floor, New York, NY 10017 (together with its subsidiaries and affiliates\n“Borderfree”).\nThe parties hereto agree as follows:\n1. PBI and Borderfree each have an interest in exploring a possible negotiated business transaction (the “Transaction”) relating to the\npotential acquisition of Borderfree (the “Business”). To explore the Transaction, it may be necessary for each party to disclose certain\nConfidential Information to the other party. “Confidential Information” shall mean any information disclosed or provided to one party\n(the “Receiving Party”) on or after the Effective Date by or on behalf of the other party (the “Disclosing Party”), which the Disclosing\nParty has not released publicly and which the Disclosing Party considers confidential and/or in which the Disclosing Party has a proprietary\ninterest. Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans,\ndiscoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business,\nmarketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product\ninformation, customer data, product services, information of the Disclosing Party’s subsidiaries and entities under its control and other\ncommunications concerning the Transaction and/or the Disclosing Party’s business and operations, together with all portions of analyses,\ncompilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect\nany of the foregoing. The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable\ndescription) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations,\nforecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection\nwith their review of, or the Receiving Party’s interest in, the Transaction which, in whole or in part, contain or reflect or are based on any\ninformation referred to in this Section (“Analyses”). All information not meeting the requirements of this Section shall be considered non-\nconfidential.\n2. For a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the\nDisclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the\nReceiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential\nInformation on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without\nlimitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and\naccountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the\nTransaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in\nthis Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential\nInformation exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that\ndiscussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms,\nconditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status\nthereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as\n“Transaction Information”). Each party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its\nRepresentatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy a\nparty may have against the other party’s Representatives with respect to such breach).\n3. The term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a\ndisclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or\nbecomes available to the Receiving Party\non a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party\nto be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or\nits Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently\ndeveloped by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the\nConfidential Information.\n4. Unless otherwise agreed to by PBI in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all\ncommunications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings,\nand (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to one\nor more members of the Pitney Bowes Corporate Development Department (the “PBI Contacts”). Contact information for the PBI\nContacts is included in Exhibit A to this Agreement. Unless otherwise agreed to by Borderfree in writing, and without limiting any\ncommunications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and\nterms of the Transaction, will be submitted or directed exclusively to any of the contacts at Borderfree included in Exhibit A to this\nAgreement (the “Borderfree Contacts”).\n5. Notwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event\nthe Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition,\ninterrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a\nregulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Disclosing\nParty’s Confidential Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the\nextent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding\nsuch External Demand, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such\nrequest or disclosure, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other\nappropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained,\nunless the Disclosing Party waives compliance with the provisions hereof, the Receiving Party or its Representatives, as the case may be,\nmay disclose only that portion of the Confidential Information or Transaction Information which it or its Representatives are advised by\ncounsel is legally required to be disclosed and to only those persons to whom the Receiving Party or its Representatives are advised by\ncounsel are legally required to receive such information, and the Receiving Party and its Representatives shall, at the Disclosing Party’s\nexpense, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential\nInformation or Transaction Information. For the avoidance of doubt, in no event shall PBI be permitted to make any disclosure of\nConfidential Information in response to any External Demand that arises from an action taken by PBI in violation of Section 12 of this\nAgreement.\n6. Confidential Information shall remain the property of the Disclosing Party at all times. If the Receiving Party determines not to proceed\nwith the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of\nthe Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in\nthe Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses;\nprovided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party\nin the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup\ntapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided\nfurther that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this\nAgreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies. The\nReceiving Party will certify such destruction to the Disclosing Party, in writing signed by one of the Receiving Party’s authorized\nRepresentatives. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party and its Representatives will\ncontinue to be bound by its and their obligations under this Agreement.\n7. Nothing herein shall obligate either party to disclose to or receive from the other party any particular information. Neither party has an\nobligation under this Agreement to purchase any service or item from the other party. Neither party is obligated to compensate the other for\nthe use of any information disclosed under this Agreement for the purpose of this Transaction, except as may be otherwise provided in a\nwritten agreement between the parties. Unless and until a Definitive Agreement (as defined below) concerning the Transaction has been\nexecuted, neither party nor its affiliates nor its or its affiliates’ Representatives shall have any legal obligation to the other party of any kind\nwhatsoever with respect to the Transaction, whether by virtue of this Agreement (except as expressly provided herein), any other written or\noral expression with respect to the Transaction, or otherwise.\n8. Each party acknowledges that the other party may: (a) explore opportunities similar to the Transaction with other companies that may be\ncompetitors of the acknowledging party; or (b) be involved in activities which are competitive with or complementary to the\nacknowledging party’s activities by internal development, acquisition, joint venture, and/or other means. Nothing agreed to herein shall\nprevent either party from such activities; provided, however, that any Confidential Information received under this Agreement may be used\nonly for the purpose of this Transaction and in no event shall be provided to any of such companies.\n9. Disclosure of any information under this Agreement shall not be construed as, directly or by implication, (a) granting any license under any\nUnited States or foreign patent, patent application or copyright, or any other intellectual property rights, (b) creating any agency or\npartnership relationship between the parties, or (c) granting the right to use either party’s name, trade names, trademarks, service marks,\nlogos or designs for any purpose, without the other party’s prior written permission.\n10. The Disclosing Party represents and warrants that it has the right to disclose the Confidential Information disclosed under this Agreement\nfor the purpose of this Transaction. Neither party nor any of its respective Representatives nor its respective Representatives’ respective\nofficers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the\n“Exchange Act”) makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation or any other information disclosed under this Agreement and each party agrees that none of the foregoing will have any\nliability under this Agreement to the Receiving Party with respect to the Confidential Information or for any errors therein or omissions\ntherefrom. Each party further agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it\nwill be entitled to rely solely on such representations and warranties as may be included in a Definitive Agreement (as defined below),\nsubject to such limitations and restrictions as may be contained therein. The term “Definitive Agreement” means a written agreement with\nrespect to the Transaction, when and as executed and delivered by all the parties thereto, binds the parties thereto to close the Transaction,\nsubject only to such conditions to closing as may be negotiated between the parties, and does not include an executed letter of intent or any\nother preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid.\n11. Each party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly\nor indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the\nDisclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation\nof the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the\nReceiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries\nor their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ (i) any person who\nresponds to such general solicitations, and (ii) any person with whom the Receiving Party was discussing employment prior to the date of\nthis Agreement or with whom the Receiving Party initiates discussions regarding employment after such person is no longer an employee\nof the Disclosing Party or its subsidiaries.\n12. Each party agrees that for a period of one (1) year from the date of this Agreement, unless invited or requested by the other party to do so,\nneither it nor any of its Representatives will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer,\npurchase of the Disclosing Party’s assets or businesses, or similar transactions involving the Disclosing Party or (ii) any recapitalization,\nrestructuring, liquidation or other extraordinary transaction with respect to the Disclosing Party; (b) (i) acquire beneficial ownership of any\nsecurities (including in derivative form) of the Disclosing Party (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a\nmajority of the Disclosing Party outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose\nor seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange\nCommission) of proxies or consents to vote any securities (including in derivative form) of the Disclosing Party, (iii) nominate any person\nas a director of the Disclosing Party, or (iv) propose any matter to be voted upon by the stockholders of the Disclosing Party; (c) directly or\nindirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange\nCommission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative\nform) of the Disclosing Party or a Business Combination involving the Disclosing Party; (d) request the Disclosing Party (or any of its\nRepresentatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action\nthat could reasonably be expected to require the Disclosing Party to make a public announcement regarding a potential Business\nCombination; provided, however, that the restrictions set forth in this paragraph shall terminate immediately upon the public announcement\nby the Disclosing Party that it has entered into a definitive agreement with a third party for a transaction involving a Business Combination.\nNotwithstanding the foregoing, a party may communicate to the board of directors of the other party or any member thereof confidential,\nnon-public offers, proposals or inquiries relating to any potential transaction specified in the foregoing clauses (a)(i), (a)(ii) or (b)(i) with or\ninvolving the other party, in each case in a manner that would not require the other party to make a public disclosure thereof.\n13. Each party agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the\nReceiving Party or its Representatives and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific\nperformance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive,\nand use its best efforts to cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any\nsuch remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies\navailable at law or in equity.\n14. Notices given under this Agreement shall be in writing and delivered by first class, certified mail, by nationally-recognized overnight\ncarrier service or by email (followed by overnight delivery by a nationally-recognized overnight carrier service) to each signatory at the\naddresses identified on page 1 of this Agreement unless changed by written notice. Unless changed by written notice, notices to Borderfree\nshall be sent to the address set forth above to: Attention Michael DeSimone, Chief Executive Officer, with a copy to Office of the General\nCounsel; and notices to PBI shall be sent to the address set forth above to: Attention: Jeff Brennan, Vice President, Corporate\nDevelopment & Strategy with a copy to: Attention: Office of the General Counsel.\n15. The Disclosing Party does not intend to waive any of the attorney-client privilege, work product doctrine or other applicable privilege with\nrespect to any of its Confidential Information or other materials. To the extent that any Confidential Information or other materials may\ninadvertently include such privileged information, upon the Disclosing Party’s request the Receiving Party and its Representatives will\nimmediately destroy or return any such Confidential Information and other materials.\n16. This Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the\nparties relating to the subject matter of this Agreement. In the event that the terms or conditions of use or confidentiality or non-disclosure\nprovision of any electronic data room established or maintained by either party or its Representatives conflicts with the terms of this\nAgreement, the terms of this Agreement shall govern. This Agreement contains the entire Agreement between the parties hereto concerning\nthe subject matter hereof, and no provision of this Agreement may be waived, in whole or in part, nor any consent given, unless approved\nin writing by a duly authorized representative of the party providing such waiver or consent, which writing specifically refers to this\nAgreement and the provision for which such waiver or consent is given. In the event that any provision of this Agreement is deemed\ninvalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way\nbe affected or impaired thereby.\n17. The terms of this Agreement may be changed, amended or modified, in whole or in part, only by subsequent written agreement duly\nexecuted by an authorized representative of each party. Neither party may assign this Agreement without the prior written consent of the\nother party. This Agreement shall be binding on, and shall inure to the benefit of and shall be enforceable by, the parties and their\nsuccessors and permitted assigns. For the convenience of the parties, this Agreement may be executed by exchange of electronic signatures\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one Agreement\nbinding on both parties.\n18. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between\nresidents of that State and executed in and to be performed entirely within that State. Each party hereto consents to personal jurisdiction in\nthat State and voluntarily submits to the jurisdiction of the federal and state courts located in the Delaware in any action or proceeding with\nrespect to this Agreement and each party irrevocably waives the right to assert the doctrine of forum non conveniens or a similar doctrine\nor to object to venue with respect to any action or proceeding brought in any such court. Each party agrees that it may be served with\nprocess at its address set forth on the first page hereof.\n19. Each party assures the other that it does not intend to, and will not, export or re-export any technical information received under this\nAgreement, including but not limited to Confidential Information, without compliance with all export control regulations applicable to the\nDisclosing Party.\n20. Each party acknowledges that it may receive material non-public information in connection with its evaluation of the Transaction and that\nit is aware (and will so advise any person, including its Representatives, to whom it provides Confidential Information) that the United\nStates and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information\nand such laws prohibit the communication of such information to any other person when it is reasonably foreseeable that such other person\nis likely to purchase or sell such securities in reliance upon such information. The Disclosing Party acknowledges that it is not acting as an\nadvisor to the Receiving Party and will not receive any amount that could be construed as a “minimum fee” within the meaning of United\nStates Treas. Reg. Section 1.6011 -4(b)(3) (or any successor thereto). In the event one party claims that the Transaction is a proprietary or\nexclusive transaction, then that party will confirm in writing to the other party that there is no limitation on disclosure of the United States\nfederal tax treatment or tax structure of the Transaction.\n21. No failure or delay by a party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver\nthereof, nor will any single or partial exercise thereof preclude any other right or further exercise thereof or the exercise of any other right,\npower or privilege.\n22. This Agreement shall terminate three (3) years from the Effective Date, and upon termination, neither party shall thereafter have any\nobligation to the other party under this Agreement.\nIN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement.\nPITNEY BOWES INC.\nBORDERFREE, INC.\nBy:\n/s/ Jeff Brennan\n(sign) By:\n/s/ Michael DeSimone\n(sign)\nName: Jeff Brennan\nName: Michael DeSimone\nTitle: VP, Corporate Development & Strategy\nTitle: Chief Executive Officer\n[Signature Page to Non-Disclosure Agreement]\nEXHIBIT A\nBorderfree Contact Information\nAll inquiries should be directed to any of the individuals listed below.\nDean Gels\nVice President, Corporate Development\nBorderfree, Inc.\n292 Madison Avenue, 17th Floor\nNew York, NY 10017\nPhone: 212.299 .3563\nEmail: dean.gels@borderfree.com\nEd Neumann\nChief Financial Officer\nBorderfree, Inc.\n292 Madison Avenue, 17th Floor\nNew York, NY 10017\nPhone: 212.299 .3528\nEmail: ed.neumann@borderfree.com\nMichael DeSimone\nChief Executive Officer\nBorderfree, Inc.\n292 Madison Avenue, 17th Floor\nNew York, NY 10017\nPhone: 212.299 .3586\nEmail: mike@borderfree.com\nPBI Contact Information\nAll inquiries should be directed to any of the individuals listed below.\nRonny B. Iversen\nCorporate Development\nPitney Bowes Inc.\n3001 Summer Street, Stamford, CT 06926-0700\nPhone: 203.351.6422\nE-mail: Ronny.Iversen@pb.com\nJeff Brennan\nVice President, Corporate Development & Strategy\nPitney Bowes Inc.\n3001 Summer Street, Stamford, CT 06926-0700\nPhone: 203.351.7566\nE-mail: Jeff.Brennan@pb.com	EX-99.(D)(2) 8 d923647dex99d2.htm CONFIDENTIALITY AGREEMENT Exhibit (d)(2)\nNON-DISCLOSURE AGREEMENT\nThis AGREEMENT is effective as of January 12, 2015 (“Effective Date”) by and between Pitney Bowes Inc., a company having a place\nof business at 3001 Summer Street, Stamford, CT 06905 (together with its subsidiaries and other affiliates, “PBI”), and Borderfree, Inc., a company having a place of business at 292 Madison Avenue, 5th Floor, New York, NY 10017 (together with its subsidiaries and affiliates “Borderfree”). The parties hereto agree as follows: 1. PBI and Borderfree each have an interest in exploring a possible negotiated business transaction (the “Transaction”) relating to the\npotential acquisition of Borderfree (the “Business”). To explore the Transaction, it may be necessary for each party to disclose certain\nConfidential Information to the other party. “Confidential Information” shall mean any information disclosed or provided to one party\n(the “Receiving Party”) on or after the Effective Date by or on behalf of the other party (the “Disclosing Party”), which the Disclosing\nParty has not released publicly and which the Disclosing Party considers confidential and/or in which the Disclosing Party has a proprietary\ninterest. Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans,\ndiscoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business,\nmarketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product\ninformation, customer data, product services, information of the Disclosing Party’s subsidiaries and entities under its control and other\ncommunications concerning the Transaction and/or the Disclosing Party’s business and operations, together with all portions of analyses,\ncompilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect\nany of the foregoing. The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable\ndescription) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations,\nforecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection\nwith their review of, or the Receiving Party’s interest in, the Transaction which, in whole or in part, contain or reflect or are based on any\ninformation referred to in this Section (“Analyses”). All information not meeting the requirements of this Section shall be considered non-\nconfidential.\nFor a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the\nDisclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the\nReceiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential\nInformation on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without\nlimitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and\naccountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the\nTransaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in\nthis Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential\nInformation exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that\ndiscussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms,\nconditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status\nthereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as\n“Transaction Information”). Each party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its\nRepresentatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy a\nparty may have against the other party’s Representatives with respect to such breach).\nThe term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a\ndisclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or\nbecomes available to the Receiving Party\non a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party\nto be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or\nits Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently\ndeveloped by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the\nConfidential Information.\nUnless otherwise agreed to by PBI in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all\ncommunications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings,\nand (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to one\nor more members of the Pitney Bowes Corporate Development Department (the “PBI Contacts”). Contact information for the PBI\nContacts is included in Exhibit A to this Agreement. Unless otherwise agreed to by Borderfree in writing, and without limiting any\ncommunications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and\nterms of the Transaction, will be submitted or directed exclusively to any of the contacts at Borderfree included in Exhibit A to this\nAgreement (the “Borderfree Contacts™).\nNotwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event\nthe Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition,\ninterrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a\nregulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Disclosing\nParty’s Confidential Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the\nextent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding\nsuch External Demand, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such\nrequest or disclosure, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other\nappropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained,\nunless the Disclosing Party waives compliance with the provisions hereof, the Receiving Party or its Representatives, as the case may be,\nmay disclose only that portion of the Confidential Information or Transaction Information which it or its Representatives are advised by\ncounsel is legally required to be disclosed and to only those persons to whom the Receiving Party or its Representatives are advised by\ncounsel are legally required to receive such information, and the Receiving Party and its Representatives shall, at the Disclosing Party’s\nexpense, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential\nInformation or Transaction Information. For the avoidance of doubt, in no event shall PBI be permitted to make any disclosure of\nConfidential Information in response to any External Demand that arises from an action taken by PBI in violation of Section 12 of this\nAgreement.\nConfidential Information shall remain the property of the Disclosing Party at all times. If the Receiving Party determines not to proceed\nwith the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of\nthe Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in\nthe Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses;\nprovided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party\nin the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup\ntapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided\nfurther that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this\nAgreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies. The\nReceiving Party will certify such destruction to the Disclosing Party, in writing signed by one of the Receiving Party’s authorized\nRepresentatives. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party and its Representatives will\ncontinue to be bound by its and their obligations under this Agreement.\n10. 11. 12. Nothing herein shall obligate either party to disclose to or receive from the other party any particular information. Neither party has an\nobligation under this Agreement to purchase any service or item from the other party. Neither party is obligated to compensate the other for\nthe use of any information disclosed under this Agreement for the purpose of this Transaction, except as may be otherwise provided in a\nwritten agreement between the parties. Unless and until a Definitive Agreement (as defined below) concerning the Transaction has been\nexecuted, neither party nor its affiliates nor its or its affiliates’ Representatives shall have any legal obligation to the other party of any kind\nwhatsoever with respect to the Transaction, whether by virtue of this Agreement (except as expressly provided herein), any other written or\noral expression with respect to the Transaction, or otherwise.\nEach party acknowledges that the other party may: (a) explore opportunities similar to the Transaction with other companies that may be\ncompetitors of the acknowledging party; or (b) be involved in activities which are competitive with or complementary to the\nacknowledging party’s activities by internal development, acquisition, joint venture, and/or other means. Nothing agreed to herein shall\nprevent either party from such activities; provided, however, that any Confidential Information received under this Agreement may be used\nonly for the purpose of this Transaction and in no event shall be provided to any of such companies.\nDisclosure of any information under this Agreement shall not be construed as, directly or by implication, (a) granting any license under any\nUnited States or foreign patent, patent application or copyright, or any other intellectual property rights, (b) creating any agency or\npartnership relationship between the parties, or (c) granting the right to use either party’s name, trade names, trademarks, service marks,\nlogos or designs for any purpose, without the other party’s prior written permission.\nThe Disclosing Party represents and warrants that it has the right to disclose the Confidential Information disclosed under this Agreement\nfor the purpose of this Transaction. Neither party nor any of its respective Representatives nor its respective Representatives’ respective\nofficers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the\n“Exchange Act”) makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation or any other information disclosed under this Agreement and each party agrees that none of the foregoing will have any\nliability under this Agreement to the Receiving Party with respect to the Confidential Information or for any errors therein or omissions\ntherefrom. Each party further agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it\nwill be entitled to rely solely on such representations and warranties as may be included in a Definitive Agreement (as defined below),\nsubject to such limitations and restrictions as may be contained therein. The term “Definitive Agreement” means a written agreement with\nrespect to the Transaction, when and as executed and delivered by all the parties thereto, binds the parties thereto to close the Transaction,\nsubject only to such conditions to closing as may be negotiated between the parties, and does not include an executed letter of intent or any\nother preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid.\nEach party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly\nor indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the\nDisclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation\nof the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the\nReceiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries\nor their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ (i) any person who\nresponds to such general solicitations, and (ii) any person with whom the Receiving Party was discussing employment prior to the date of\nthis Agreement or with whom the Receiving Party initiates discussions regarding employment after such person is no longer an employee\nof the Disclosing Party or its subsidiaries.\nEach party agrees that for a period of one (1) year from the date of this Agreement, unless invited or requested by the other party to do so,\nneither it nor any of its Representatives will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer,\npurchase of the Disclosing Party’s assets or businesses, or similar transactions involving the Disclosing Party or (ii) any recapitalization,\n13. 14. 15. 16. restructuring, liquidation or other extraordinary transaction with respect to the Disclosing Party; (b) (i) acquire beneficial ownership of any\nsecurities (including in derivative form) of the Disclosing Party (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a\nmajority of the Disclosing Party outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose\nor seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange\nCommission) of proxies or consents to vote any securities (including in derivative form) of the Disclosing Party, (iii) nominate any person\nas a director of the Disclosing Party, or (iv) propose any matter to be voted upon by the stockholders of the Disclosing Party; (c) directly or\nindirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange\nCommission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative\nform) of the Disclosing Party or a Business Combination involving the Disclosing Party; (d) request the Disclosing Party (or any of its\nRepresentatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action\nthat could reasonably be expected to require the Disclosing Party to make a public announcement regarding a potential Business\nCombination; provided, however, that the restrictions set forth in this paragraph shall terminate immediately upon the public announcement\nby the Disclosing Party that it has entered into a definitive agreement with a third party for a transaction involving a Business Combination.\nNotwithstanding the foregoing, a party may communicate to the board of directors of the other party or any member thereof confidential,\nnon-public offers, proposals or inquiries relating to any potential transaction specified in the foregoing clauses (a)(i), (a)(ii) or (b)(i) with or\ninvolving the other party, in each case in a manner that would not require the other party to make a public disclosure thereof.\nEach party agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the\nReceiving Party or its Representatives and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific\nperformance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive,\nand use its best efforts to cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any\nsuch remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies\navailable at law or in equity.\nNotices given under this Agreement shall be in writing and delivered by first class, certified mail, by nationally-recognized overnight\ncarrier service or by email (followed by overnight delivery by a nationally-recognized overnight carrier service) to each signatory at the\naddresses identified on page 1 of this Agreement unless changed by written notice. Unless changed by written notice, notices to Borderfree\nshall be sent to the address set forth above to: Attention Michael DeSimone, Chief Executive Officer, with a copy to Office of the General\nCounsel; and notices to PBI shall be sent to the address set forth above to: Attention: Jeff Brennan, Vice President, Corporate\nDevelopment & Strategy with a copy to: Attention: Office of the General Counsel.\nThe Disclosing Party does not intend to waive any of the attorney-client privilege, work product doctrine or other applicable privilege with\nrespect to any of its Confidential Information or other materials. To the extent that any Confidential Information or other materials may\ninadvertently include such privileged information, upon the Disclosing Party’s request the Receiving Party and its Representatives will\nimmediately destroy or return any such Confidential Information and other materials.\nThis Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the\nparties relating to the subject matter of this Agreement. In the event that the terms or conditions of use or confidentiality or non-disclosure\nprovision of any electronic data room established or maintained by either party or its Representatives conflicts with the terms of this\nAgreement, the terms of this Agreement shall govern. This Agreement contains the entire Agreement between the parties hereto concerning\nthe subject matter hereof, and no provision of this Agreement may be waived, in whole or in part, nor any consent given, unless approved\nin writing by a duly authorized representative of the party providing such waiver or consent, which writing specifically refers to this\nAgreement and the provision for which such waiver or consent is given. In the event that any provision of this Agreement is deemed\ninvalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way\nbe affected or impaired thereby.\n17. 18. 19. 20. 21. 22. The terms of this Agreement may be changed, amended or modified, in whole or in part, only by subsequent written agreement duly\nexecuted by an authorized representative of each party. Neither party may assign this Agreement without the prior written consent of the\nother party. This Agreement shall be binding on, and shall inure to the benefit of and shall be enforceable by, the parties and their\nsuccessors and permitted assigns. For the convenience of the parties, this Agreement may be executed by exchange of electronic signatures\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one Agreement\nbinding on both parties.\nThis Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between\nresidents of that State and executed in and to be performed entirely within that State. Each party hereto consents to personal jurisdiction in\nthat State and voluntarily submits to the jurisdiction of the federal and state courts located in the Delaware in any action or proceeding with\nrespect to this Agreement and each party irrevocably waives the right to assert the doctrine of forum non conveniens or a similar doctrine\nor to object to venue with respect to any action or proceeding brought in any such court. Each party agrees that it may be served with\nprocess at its address set forth on the first page hereof.\nEach party assures the other that it does not intend to, and will not, export or re-export any technical information received under this\nAgreement, including but not limited to Confidential Information, without compliance with all export control regulations applicable to the\nDisclosing Party.\nEach party acknowledges that it may receive material non-public information in connection with its evaluation of the Transaction and that\nit is aware (and will so advise any person, including its Representatives, to whom it provides Confidential Information) that the United\nStates and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information\nand such laws prohibit the communication of such information to any other person when it is reasonably foreseeable that such other person\nis likely to purchase or sell such securities in reliance upon such information. The Disclosing Party acknowledges that it is not acting as an\nadvisor to the Receiving Party and will not receive any amount that could be construed as a “minimum fee” within the meaning of United\nStates Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the event one party claims that the Transaction is a proprietary or\nexclusive transaction, then that party will confirm in writing to the other party that there is no limitation on disclosure of the United States\nfederal tax treatment or tax structure of the Transaction.\nNo failure or delay by a party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver\nthereof, nor will any single or partial exercise thereof preclude any other right or further exercise thereof or the exercise of any other right,\npower or privilege.\nThis Agreement shall terminate three (3) years from the Effective Date, and upon termination, neither party shall thereafter have any\nobligation to the other party under this Agreement.\nIN WITNESS WHEREOQF, the parties, by their duly authorized representatives, have executed this Agreement. PITNEY BOWES INC. BORDERFREE, INC.\nBy: /s/ Jetf Brennan (sign) By: /s/ Michael DeSimone\nName: Jeff Brennan Name: Michael DeSimone\nTitle: VP, Corporate Development & Strategy Title: Chief Executive Officer\n[Signature Page to Non-Disclosure Agreement]\n(sign)\nEXHIBIT A\nBorderfree Contact Information\nAll inquiries should be directed to any of the individuals listed below.\nDean Gels\nVice President, Corporate Development\nBorderfree, Inc.\n292 Madison Avenue, 17th Floor\nNew York, NY 10017\nPhone: 212.299.3563\nEmail: dean.gels@borderfree.com\nEd Neumann\nChief Financial Officer\nBorderfree, Inc.\n292 Madison Avenue, 17th Floor\nNew York, NY 10017\nPhone: 212.299.3528\nEmail: ed.neumann@borderfree.com\nMichael DeSimone\nChief Executive Officer\nBorderfree, Inc.\n292 Madison Avenue, 17th Floor\nNew York, NY 10017\nPhone: 212.299.3586\nEmail: mike@borderfree.com\nPBI Contact Information\nAll inquiries should be directed to any of the individuals listed below.\nRonny B. Iversen\nCorporate Development\nPitney Bowes Inc.\n3001 Summer Street, Stamford, CT 06926-0700\nPhone: 203.351.6422\nE-mail: Ronny.Iversen@pb.com\nJeff Brennan\nVice President, Corporate Development & Strategy\nPitney Bowes Inc.\n3001 Summer Street, Stamford, CT 06926-0700\nPhone: 203.351.7566\nE-mail: Jeff.Brennan@pb.com	EX-99.(D)(2) 8 1923647dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nNON-DISCLOSURE AGREEMENT\nThis AGREEMENT is effective as of January 12, 2015 ("Effective Date") by and between Pitney Bowes Inc., a company having a place\nof business at 3001 Summer Street, Stamford, CT 06905 (together with its subsidiaries and other affiliates, "PBI"), and Borderfree, Inc., a\ncompany having a place of business at 292 Madison Avenue, 5th Floor, New York, NY 10017 (together with its subsidiaries and affiliates\n"Borderfree").\nThe parties hereto agree as follows:\n1.\nPBI and Borderfree each have an interest in exploring a possible negotiated business transaction (the "Transaction") relating to the\npotential acquisition of Borderfree (the "Business"). To explore the Transaction, it may be necessary for each party to disclose certain\nConfidential Information to the other party. "Confidential Information" shall mean any information disclosed or provided to one party\n(the "Receiving Party") on or after the Effective Date by or on behalf of the other party (the "Disclosing Party"), which the Disclosing\nParty has not released publicly and which the Disclosing Party considers confidential and/or in which the Disclosing Party has a proprietary\ninterest. Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans,\ndiscoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business,\nmarketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product\ninformation, customer data, product services, information of the Disclosing Party's subsidiaries and entities under its control and other\ncommunications concerning the Transaction and/or the Disclosing Party's business and operations, together with all portions of analyses,\ncompilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect\nany of the foregoing. The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable\ndescription) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations,\nforecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection\nwith their review of, or the Receiving Party's interest in, the Transaction which, in whole or in part, contain or reflect or are based on any\ninformation referred to in this Section ("Analyses"). All information not meeting the requirements of this Section shall be considered non-\nconfidential.\n2.\nFor a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the\nDisclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the\nReceiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential\nInformation on a need to know basis to its and its affiliates' officers, directors, employees, consultants and advisors (including, without\nlimitation, financial advisors, investment banks, the agents and lenders under the Receiving Party's existing credit facilities, attorneys and\naccountants) ("Representatives") who have a need to know such information for purposes of evaluation and completion of the\nTransaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth\nin\nthis Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential\nInformation exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that\ndiscussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms,\nconditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status\nthereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as\n"Transaction Information"). Each party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its\nRepresentatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy a\nparty may have against the other party's Representatives with respect to such breach).\n3.\nThe term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a\ndisclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or\nbecomes available to the Receiving Party\non\na non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party\nto be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party's or\nits Representatives' possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently\ndeveloped by a party or any of its Representatives without violating any of such party's obligations hereunder or without reference to the\nConfidential Information.\n4.\nUnless otherwise agreed to by PBI in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all\ncommunications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings,\nand (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to one\nor more members of the Pitney Bowes Corporate Development Department (the "PBI Contacts"). Contact information for the PBI\nContacts is included in Exhibit A to this Agreement. Unless otherwise agreed to by Borderfree in writing, and without limiting any\ncommunications\npermitted\nby\nthe\nlast\nsentence\nof\nSection\n12,\n(a)\nall\ncommunications\nregarding\nthe\nTransaction,\n(b)\nrequests\nfor\nadditional\ninformation, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and\nterms of the Transaction, will be submitted or directed exclusively to any of the contacts at Borderfree included in Exhibit A to this\nAgreement (the "Borderfree Contacts").\n5.\nNotwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event\nthe Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition,\ninterrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a\nregulatory examiner (any such requested or required disclosure, an "External Demand") to disclose all or any part of the Disclosing\nParty's Confidentia Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the\nextent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding\nsuch External Demand, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such\nrequest or disclosure, and (c) assist the Disclosing Party, at the Disclosing Party's expense, in seeking a protective order or other\nappropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained,\nunless the Disclosing Party waives compliance with the provisions hereof, the Receiving Party or its Representatives, as the case may be,\nmay disclose only that portion of the Confidential Information or Transaction Information which it or its Representatives are advised by\ncounsel is legally required to be disclosed and to only those persons to whom the Receiving Party or its Representatives are advised by\ncounsel are legally required to receive such information, and the Receiving Party and its Representatives shall, at the Disclosing Party's\nexpense, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidentia\nInformation or Transaction Information. For the avoidance of doubt, in no event shall PBI be permitted to make any disclosure of\nConfidential Information in response to any External Demand that arises from an action taken by PBI in violation of Section 12 of this\nAgreement.\n6.\nConfidential Information shall remain the property of the Disclosing Party at all times. If the Receiving Party determines not to proceed\nwith\nthe\nTransaction,\nthe\nReceiving\nParty\nwill\npromptly\ninform\nthe\nDisclosing\nParty\nof\nthat\ndecision\nand,\nin\nthat\ncase,\nupon\nthe\nrequest\nof\nthe Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in\nthe Receiving Party's possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party's Analyses;\nprovided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party\nin the ordinary course of business and retained in accordance with the Receiving Party's general retention policies or computer backup\ntapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided\nfurther that the Receiving Party's records department may retain one copy of such Confidential Information, subject to the terms of this\nAgreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies. The\nReceiving Party will certify such destruction to the Disclosing Party, in writing signed by one of the Receiving Party's authorized\nRepresentatives. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party and its Representatives will\ncontinue to be bound by its and their obligations under this Agreement.\n7.\nNothing herein shall obligate either party to disclose to or receive from the other party any particular information. Neither party has an\nobligation under this Agreement to purchase any service or item from the other party. Neither party is obligated to compensate the other for\nthe use of any information disclosed under this Agreement for the purpose of this Transaction, except as may be otherwise provided in a\nwritten agreement between the parties. Unless and until a Definitive Agreement (as defined below) concerning the Transaction has been\nexecuted, neither party nor its affiliates nor its or its affiliates' Representatives shall have any legal obligation to the other party of any kind\nwhatsoever with respect to the Transaction, whether by virtue of this Agreement (except as expressly provided herein), any other written or\noral expression with respect to the Transaction, or otherwise.\n8.\nEach party acknowledges that the other party may: (a) explore opportunities similar to the Transaction with other companies that may be\ncompetitors of the acknowledging party; or (b) be involved in activities which are competitive with or complementary to the\nacknowledging party's activities by internal development, acquisition, joint venture, and/or other means. Nothing agreed to herein shall\nprevent either party from such activities; provided, however, that any Confidential Information received under this Agreement may be used\nonly for the purpose of this Transaction and in no event shall be provided to any of such companies.\n9.\nDisclosure of any information under this Agreement shall not be construed as, directly or by implication, (a) granting any license under any\nUnited States or foreign patent, patent application or copyright, or any other intellectual property rights, (b) creating any agency or\npartnership relationship between the parties, or (c) granting the right to use either party's name, trade names, trademarks, service marks,\nlogos or designs for any purpose, without the other party's prior written permission.\n10.\nThe Disclosing Party represents and warrants that it has the right to disclose the Confidential Information disclosed under this Agreement\nfor the purpose of this Transaction. Neither party nor any of its respective Representatives nor its respective Representatives' respective\nofficers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the\n"Exchange Act") makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation or any other information disclosed under this Agreement and each party agrees that none of the foregoing will have any\nliability under this Agreement to the Receiving Party with respect to the Confidential Information or for any errors therein or omissions\ntherefrom. Each party further agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it\nwill be entitled to rely solely on such representations and warranties as may be included in a Definitive Agreement (as defined below),\nsubject to such limitations and restrictions as may be contained therein. The term "Definitive Agreement" means a written agreement with\nrespect to the Transaction, when and as executed and delivered by all the parties thereto, binds the parties thereto to close the Transaction,\nsubject only to such conditions to closing as may be negotiated between the parties, and does not include an executed letter of intent or any\nother preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid.\n11. Each party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly\nor indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the\nDisclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation\nof the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the\nReceiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries\nor their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ (i) any person who\nresponds to such general solicitations, and (ii) any person with whom the Receiving Party was discussing employment prior to the date of\nthis Agreement or with whom the Receiving Party initiates discussions regarding employment after such person is no longer an employee\nof the Disclosing Party or its subsidiaries.\n12. Each party agrees that for a period of one (1) year from the date of this Agreement, unless invited or requested by the other party to do so,\nneither it nor any of its Representatives will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer,\npurchase of the Disclosing Party's assets or businesses, or similar transactions involving the Disclosing Party or (ii) any recapitalization,\nrestructuring, liquidation or other extraordinary transaction with respect to the Disclosing Party; (b) (i) acquire beneficial ownership of any\nsecurities (including in derivative form) of the Disclosing Party (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a\nmajority of the Disclosing Party outstanding capital stock or consolidated assets, is referred to as a "Business Combination"), (ii) propose\nor seek, whether alone or in concert with others, any "solicitation" (as such term is used in the rules of the Securities and Exchange\nCommission) of proxies or consents to vote any securities (including in derivative form) of the Disclosing Party, (iii) nominate any person\nas a director of the Disclosing Party, or (iv) propose any matter to be voted upon by the stockholders of the Disclosing Party; (c) directly or\nindirectly, form, join or in any way participate in a third party "group" (as such term is used in the rules of the Securities and Exchange\nCommission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative\nform) of the Disclosing Party or a Business Combination involving the Disclosing Party; (d) request the Disclosing Party (or any of its\nRepresentatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action\nthat could reasonably be expected to require the Disclosing Party to make a public announcement regarding a potential Business\nCombination; provided, however, that the restrictions set forth in this paragraph shall terminate immediately upon the public announcement\nby the Disclosing Party that it has entered into a definitive agreement with a third party for a transaction involving a Business Combination.\nNotwithstanding the foregoing, a party may communicate to the board of directors of the other party or any member thereof confidential,\nnon-public offers, proposals or inquiries relating to any potential transaction specified in the foregoing clauses (a)(i), (a)(ii) or (b)(i) with or\ninvolving the other party, in each case in a manner that would not require the other party to make a public disclosure thereof.\n13. Each party agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the\nReceiving Party or its Representatives and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific\nperformance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive,\nand use its best efforts to cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any\nsuch remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies\navailable at law or in equity.\n14. Notices given under this Agreement shall be in writing and delivered by first class, certified mail, by nationally-recognized overnight\ncarrier service or by email (followed by overnight delivery by a nationally-recognized overnight carrier service) to each signatory at the\naddresses identified on page 1 of this Agreement unless changed by written notice. Unless changed by written notice, notices to Borderfree\nshall be sent to the address set forth above to: Attention Michael DeSimone, Chief Executive Officer, with a copy to Office of the General\nCounsel; and notices to PBI shall be sent to the address set forth above to: Attention: Jeff Brennan, Vice President, Corporate\nDevelopment & Strategy with a copy to: Attention: Office of the General Counsel.\n15. The Disclosing Party does not intend to waive any of the attorney-client privilege, work product doctrine or other applicable privilege with\nrespect to any of its Confidential Information or other materials. To the extent that any Confidential Information or other materials may\ninadvertently include such privileged information, upon the Disclosing Party's request the Receiving Party and its Representatives will\nimmediately destroy or return any such Confidential Information and other materials.\n16 This Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the\nparties relating to the subject matter of this Agreement. In the event that the terms or conditions of use or confidentiality or non-disclosure\nprovision of any electronic data room established or maintained by either party or its Representatives conflicts with the terms of this\nAgreement, the terms of this Agreement shall govern. This Agreement contains the entire Agreement between the parties hereto concerning\nthe subject matter hereof, and no provision of this Agreement may be waived, in whole or in part, nor any consent given, unless approved\nin writing by a duly authorized representative of the party providing such waiver or consent, which writing specifically refers to this\nAgreement and the provision for which such waiver or consent is given. In the event that any provision of this Agreement is deemed\ninvalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way\nbe affected or impaired thereby.\n17. The terms of this Agreement may be changed, amended or modified, in whole or in part, only by subsequent written agreement duly\nexecuted by an authorized representative of each party. Neither party may assign this Agreement without the prior written consent of the\nother party. This Agreement shall be binding on, and shall inure to the benefit of and shall be enforceable by, the parties and their\nsuccessors and permitted assigns. For the convenience of the parties, this Agreement may be executed by exchange of electronic signatures\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one Agreement\nbinding on both parties.\n18. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between\nresidents of that State and executed in and to be performed entirely within that State. Each party hereto consents to personal jurisdiction in\nthat State and voluntarily submits to the jurisdiction of the federal and state courts located in the Delaware in any action or proceeding with\nrespect to this Agreement and each party irrevocably waives the right to assert the doctrine of forum non conveniens or a similar doctrine\nor to object to venue with respect to any action or proceeding brought in any such court. Each party agrees that it may be served with\nprocess at its address set forth on the first page hereof.\n19. Each party assures the other that it does not intend to, and will not, export or re-export any technical information received under this\nAgreement, including but not limited to Confidential Information, without compliance with all export control regulations applicable to the\nDisclosing Party.\n20.\nEach party acknowledges that it may receive material non-public information in connection with its evaluation of the Transaction and that\nit is aware (and will so advise any person, including its Representatives, to whom it provides Confidential Information) that the United\nStates and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information\nand such laws prohibit the communication of such information to any other person when it is reasonably foreseeable that such other person\nis likely to purchase or sell such securities in reliance upon such information. The Disclosing Party acknowledges that it is not acting as an\nadvisor to the Receiving Party and will not receive any amount that could be construed as a "minimum fee" within the meaning of United\nStates Treas. Reg. Section 1.6011-4(b)(3) (or any successor thereto). In the event one party claims that the Transaction is a proprietary or\nexclusive transaction, then that party will confirm in writing to the other party that there is no limitation on disclosure of the United States\nfederal tax treatment or tax structure of the Transaction.\n21.\nNo failure or delay by a party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver\nthereof, nor will any single or partial exercise thereof preclude any other right or further exercise thereof or the exercise of any other right,\npower or privilege.\n22. This Agreement shall terminate three (3) years from the Effective Date, and upon termination, neither party shall thereafter have any\nobligation to the other party under this Agreement.\nIN\nWITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement.\nPITNEY BOWES INC.\nBORDERFREE, INC.\nBy:\n/s/ Jeff Brennan\n(sign) By:\n/s/ Michael DeSimone\n(sign)\nName: Jeff Brennan\nName: Michael DeSimone\nTitle: VP, Corporate Development & Strategy\nTitle: Chief Executive Officer\n[Signature Page to Non-Disclosure Agreement]\nEXHIBIT A\nBorderfree Contact Information\nAll inquiries should be directed to any of the individuals listed below.\nDean Gels\nVice President, Corporate Development\nBorderfree, Inc.\n292 Madison Avenue, 17th Floor\nNew York, NY 10017\nPhone: 212.299.3563\nEmail: dean.gels@borderfree.com\nEd Neumann\nChief Financial Officer\nBorderfree, Inc.\n292 Madison Avenue, 17th Floor\nNew York, NY 10017\nPhone: 212.299.3528\nEmail: ed.neumann@borderfree.com\nMichael DeSimone\nChief Executive Officer\nBorderfree, Inc.\n292 Madison Avenue, 17th Floor\nNew York, NY 10017\nPhone: 212.299.3586\nEmail: mike@borderfree.com\nPBI Contact Information\nAll inquiries should be directed to any of the individuals listed below.\nRonny B. Iversen\nCorporate Development\nPitney Bowes Inc.\n3001 Summer Street, Stamford, CT 06926-0700\nPhone: 203.351.6422\nE-mail: Ronny.Iversen@pb.com\nJeff Brennan\nVice President, Corporate Development & Strategy\nPitney Bowes Inc.\n3001 Summer Street, Stamford, CT 06926-0700\nPhone: 203.351.7566\nE-mail: Jeff.Brennan@pb.com	EX-99.(D)(2) 8 d923647dex99d2.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(2)\nNON-DISCLOSURE AGREEMENT\nThis AGREEMENT is effective as of January 12, 2015 (“Effective Date”) by and between Pitney Bowes Inc., a company having a place\nof business at 3001 Summer Street, Stamford, CT 06905 (together with its subsidiaries and other affiliates, “PBI”), and Borderfree, Inc., a\ncompany having a place of business at 292 Madison Avenue, 5th Floor, New York, NY 10017 (together with its subsidiaries and affiliates\n“Borderfree”).\nThe parties hereto agree as follows:\n1. PBI and Borderfree each have an interest in exploring a possible negotiated business transaction (the “Transaction”) relating to the\npotential acquisition of Borderfree (the “Business”). To explore the Transaction, it may be necessary for each party to disclose certain\nConfidential Information to the other party. “Confidential Information” shall mean any information disclosed or provided to one party\n(the “Receiving Party”) on or after the Effective Date by or on behalf of the other party (the “Disclosing Party”), which the Disclosing\nParty has not released publicly and which the Disclosing Party considers confidential and/or in which the Disclosing Party has a proprietary\ninterest. Confidential Information includes, without limitation, information, know-how, specifications, materials, models, plans,\ndiscoveries, trade secrets (as such term is defined in the Uniform Trade Secrets Act in effect on the Effective Date), records, data, business,\nmarketing, manufacturing and financial records, operations and strategies, invention plans, distribution channels, and technical and product\ninformation, customer data, product services, information of the Disclosing Party’s subsidiaries and entities under its control and other\ncommunications concerning the Transaction and/or the Disclosing Party’s business and operations, together with all portions of analyses,\ncompilations, notes, studies and other documents prepared by or for the benefit of the Receiving Party which contain or otherwise reflect\nany of the foregoing. The term Confidential Information also includes, without limitation: (a) the identity (by name or identifiable\ndescription) of the parties hereto; (b) the fact that the parties hereto are considering a Transaction; and (c) all analyses, compilations,\nforecasts, summaries, studies or other materials prepared by the Receiving Party and its Representatives (as defined below) in connection\nwith their review of, or the Receiving Party’s interest in, the Transaction which, in whole or in part, contain or reflect or are based on any\ninformation referred to in this Section (“Analyses”). All information not meeting the requirements of this Section shall be considered non-\nconfidential.\n2. For a period of three (3) years from the date of initial disclosure, Confidential Information received by the Receiving Party from the\nDisclosing Party hereunder shall be: (a) held in confidence by the Receiving Party and not disclosed to any third party; and (b) used by the\nReceiving Party only for the purpose of evaluating and completing the Transaction. The Receiving Party may disclose Confidential\nInformation on a need to know basis to its and its affiliates’ officers, directors, employees, consultants and advisors (including, without\nlimitation, financial advisors, investment banks, the agents and lenders under the Receiving Party’s existing credit facilities, attorneys and\naccountants) (“Representatives”) who have a need to know such information for purposes of evaluation and completion of the\nTransaction; provided that such Representatives shall be bound by terms of confidentiality and non-use consistent with those set forth in\nthis Agreement. Each party will direct its Representatives not to disclose to any other person either: (a) the fact that the Confidential\nInformation exists or has been made available to the Receiving Party, (b) that the parties are considering the Transaction, or (c) that\ndiscussions or negotiations are taking place or have taken place between the parties concerning the Transaction or any of the terms,\nconditions or other facts relating to the Transaction with the Receiving Party or such discussions or negotiations, including the status\nthereof or the subject matter of this Agreement (the matters described in the foregoing clauses (a)-(c) being referred to herein as\n“Transaction Information”). Each party agrees to be responsible for any breaches of any of the provisions of this Agreement by any of its\nRepresentatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy a\nparty may have against the other party’s Representatives with respect to such breach).\n3. The term Confidential Information does not include any information which: (a) is or becomes publicly available other than as a result of a\ndisclosure by the Receiving Party or its Representatives in violation of this Agreement or other obligation of confidentiality, or (b) is or\nbecomes available to the Receiving Party\non a non-confidential basis from a source (other than the Disclosing Party or its Representatives) who is not known by the Receiving Party\nto be prohibited from disclosing such information by a legal, contractual or fiduciary obligation, or (c) is already in the Receiving Party’s or\nits Representatives’ possession (other than information furnished by or on behalf of the Disclosing Party), or (d) is independently\ndeveloped by a party or any of its Representatives without violating any of such party’s obligations hereunder or without reference to the\nConfidential Information.\n4. Unless otherwise agreed to by PBI in writing, and without limiting any communications permitted by the last sentence of Section 12, (a) all\ncommunications regarding the Transaction, (b) requests for additional information, (c) requests for facility tours or management meetings,\nand (d) discussions or questions regarding procedures, timing and terms of the Transaction, will be submitted or directed exclusively to one\nor more members of the Pitney Bowes Corporate Development Department (the “PBI Contacts”). Contact information for the PBI\nContacts is included in Exhibit A to this Agreement. Unless otherwise agreed to by Borderfree in writing, and without limiting any\ncommunications permitted by the last sentence of Section 12, (a) all communications regarding the Transaction, (b) requests for additional\ninformation, (c) requests for facility tours or management meetings, and (d) discussions or questions regarding procedures, timing and\nterms of the Transaction, will be submitted or directed exclusively to any of the contacts at Borderfree included in Exhibit A to this\nAgreement (the “Borderfree Contacts”).\n5. Notwithstanding anything to the contrary provided in this Agreement other than, and subject to, Section 12 of this Agreement, in the event\nthe Receiving Party or any of its Representatives receives a request pursuant to or is required by law, rule, regulation, deposition,\ninterrogatory, request for documents, subpoena, civil investigative demand or similar process or pursuant to a formal request from a\nregulatory examiner (any such requested or required disclosure, an “External Demand”) to disclose all or any part of the Disclosing\nParty’s Confidential Information or Transaction Information, the Receiving Party or its Representatives, as the case may be, agree to (to the\nextent practicable and legally permissible) (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding\nsuch External Demand, (b) consult with the Disclosing Party on the advisability of taking legally available steps to resist or narrow such\nrequest or disclosure, and (c) assist the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or other\nappropriate remedy to the extent available under the circumstances. In the event that such protective order or other remedy is not obtained,\nunless the Disclosing Party waives compliance with the provisions hereof, the Receiving Party or its Representatives, as the case may be,\nmay disclose only that portion of the Confidential Information or Transaction Information which it or its Representatives are advised by\ncounsel is legally required to be disclosed and to only those persons to whom the Receiving Party or its Representatives are advised by\ncounsel are legally required to receive such information, and the Receiving Party and its Representatives shall, at the Disclosing Party’s\nexpense, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential\nInformation or Transaction Information. For the avoidance of doubt, in no event shall PBI be permitted to make any disclosure of\nConfidential Information in response to any External Demand that arises from an action taken by PBI in violation of Section 12 of this\nAgreement.\n6. Confidential Information shall remain the property of the Disclosing Party at all times. If the Receiving Party determines not to proceed\nwith the Transaction, the Receiving Party will promptly inform the Disclosing Party of that decision and, in that case, upon the request of\nthe Disclosing Party or any of its Representatives, the Receiving Party will: (a) destroy all copies of the written Confidential Information in\nthe Receiving Party’s possession (other than any of your own Analyses), and (b) promptly destroy all the Disclosing Party’s Analyses;\nprovided however, that nothing in this Agreement shall require the destruction of investment memoranda prepared by the Receiving Party\nin the ordinary course of business and retained in accordance with the Receiving Party’s general retention policies or computer backup\ntapes or copies of Confidential Information or Analyses created pursuant to automated archiving or backup procedures; and provided\nfurther that the Receiving Party’s records department may retain one copy of such Confidential Information, subject to the terms of this\nAgreement, solely for compliance with legal or regulatory obligations or pursuant to its internal document retention policies. The\nReceiving Party will certify such destruction to the Disclosing Party, in writing signed by one of the Receiving Party’s authorized\nRepresentatives. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party and its Representatives will\ncontinue to be bound by its and their obligations under this Agreement.\n7. Nothing herein shall obligate either party to disclose to or receive from the other party any particular information. Neither party has an\nobligation under this Agreement to purchase any service or item from the other party. Neither party is obligated to compensate the other for\nthe use of any information disclosed under this Agreement for the purpose of this Transaction, except as may be otherwise provided in a\nwritten agreement between the parties. Unless and until a Definitive Agreement (as defined below) concerning the Transaction has been\nexecuted, neither party nor its affiliates nor its or its affiliates’ Representatives shall have any legal obligation to the other party of any kind\nwhatsoever with respect to the Transaction, whether by virtue of this Agreement (except as expressly provided herein), any other written or\noral expression with respect to the Transaction, or otherwise.\n8. Each party acknowledges that the other party may: (a) explore opportunities similar to the Transaction with other companies that may be\ncompetitors of the acknowledging party; or (b) be involved in activities which are competitive with or complementary to the\nacknowledging party’s activities by internal development, acquisition, joint venture, and/or other means. Nothing agreed to herein shall\nprevent either party from such activities; provided, however, that any Confidential Information received under this Agreement may be used\nonly for the purpose of this Transaction and in no event shall be provided to any of such companies.\n9. Disclosure of any information under this Agreement shall not be construed as, directly or by implication, (a) granting any license under any\nUnited States or foreign patent, patent application or copyright, or any other intellectual property rights, (b) creating any agency or\npartnership relationship between the parties, or (c) granting the right to use either party’s name, trade names, trademarks, service marks,\nlogos or designs for any purpose, without the other party’s prior written permission.\n10. The Disclosing Party represents and warrants that it has the right to disclose the Confidential Information disclosed under this Agreement\nfor the purpose of this Transaction. Neither party nor any of its respective Representatives nor its respective Representatives’ respective\nofficers, directors, employees, agents or controlling persons within the meaning of Section 20 of the Securities Exchange Act of 1934 (the\n“Exchange Act”) makes any representation or warranty, express or implied, as to the accuracy or completeness of the Confidential\nInformation or any other information disclosed under this Agreement and each party agrees that none of the foregoing will have any\nliability under this Agreement to the Receiving Party with respect to the Confidential Information or for any errors therein or omissions\ntherefrom. Each party further agrees that it is not entitled to rely on the accuracy or completeness of the Confidential Information and that it\nwill be entitled to rely solely on such representations and warranties as may be included in a Definitive Agreement (as defined below),\nsubject to such limitations and restrictions as may be contained therein. The term “Definitive Agreement” means a written agreement with\nrespect to the Transaction, when and as executed and delivered by all the parties thereto, binds the parties thereto to close the Transaction,\nsubject only to such conditions to closing as may be negotiated between the parties, and does not include an executed letter of intent or any\nother preliminary written agreement, nor does it include any written or verbal acceptance of an offer or bid.\n11. Each party agrees that for a period of two (2) years from the date of this Agreement, neither it nor any of its Representatives will, directly\nor indirectly, solicit for employment or employ any individual serving as an officer of the Disclosing Party or any employee of the\nDisclosing Party or any of its subsidiaries, in each case with whom the Receiving Party has had substantial contact during its investigation\nof the Disclosing Party and its business, in each case without obtaining the prior written consent of the Disclosing Party; provided that the\nReceiving Party may make general solicitations for employment not specifically directed at the Disclosing Party or any of its subsidiaries\nor their respective employees (including, without limitation, by a bona fide search firm) and solicit and employ (i) any person who\nresponds to such general solicitations, and (ii) any person with whom the Receiving Party was discussing employment prior to the date of\nthis Agreement or with whom the Receiving Party initiates discussions regarding employment after such person is no longer an employee\nof the Disclosing Party or its subsidiaries.\n12. Each party agrees that for a period of one (1) year from the date of this Agreement, unless invited or requested by the other party to do so,\nneither it nor any of its Representatives will: (a) propose (i) any merger, consolidation, business combination, tender or exchange offer,\npurchase of the Disclosing Party’s assets or businesses, or similar transactions involving the Disclosing Party or (ii) any recapitalization,\nrestructuring, liquidation or other extraordinary transaction with respect to the Disclosing Party; (b) (i) acquire beneficial ownership of any\nsecurities (including in derivative form) of the Disclosing Party (collectively, a transaction specified in (a)(i), (a)(ii) and (b)(i) involving a\nmajority of the Disclosing Party outstanding capital stock or consolidated assets, is referred to as a “Business Combination”), (ii) propose\nor seek, whether alone or in concert with others, any “solicitation” (as such term is used in the rules of the Securities and Exchange\nCommission) of proxies or consents to vote any securities (including in derivative form) of the Disclosing Party, (iii) nominate any person\nas a director of the Disclosing Party, or (iv) propose any matter to be voted upon by the stockholders of the Disclosing Party; (c) directly or\nindirectly, form, join or in any way participate in a third party “group” (as such term is used in the rules of the Securities and Exchange\nCommission) (or discuss with any third party the potential formation of a group) with respect to any securities (including in derivative\nform) of the Disclosing Party or a Business Combination involving the Disclosing Party; (d) request the Disclosing Party (or any of its\nRepresentatives), directly or indirectly, to amend or waive any provision of this paragraph (including this sentence); or (e) take any action\nthat could reasonably be expected to require the Disclosing Party to make a public announcement regarding a potential Business\nCombination; provided, however, that the restrictions set forth in this paragraph shall terminate immediately upon the public announcement\nby the Disclosing Party that it has entered into a definitive agreement with a third party for a transaction involving a Business Combination.\nNotwithstanding the foregoing, a party may communicate to the board of directors of the other party or any member thereof confidential,\nnon-public offers, proposals or inquiries relating to any potential transaction specified in the foregoing clauses (a)(i), (a)(ii) or (b)(i) with or\ninvolving the other party, in each case in a manner that would not require the other party to make a public disclosure thereof.\n13. Each party agrees that money damages would not be a sufficient remedy for any breach (or threatened breach) of this Agreement by the\nReceiving Party or its Representatives and that the Disclosing Party shall be entitled to equitable relief, including injunction and specific\nperformance, as a remedy for any such breach (or threatened breach), without proof of damages, and each party further agrees to waive,\nand use its best efforts to cause its Representatives to waive any requirement for the securing or posting of any bond in connection with any\nsuch remedy. Such remedies shall not be the exclusive remedies for a breach of this Agreement, but will be in addition to all other remedies\navailable at law or in equity.\n14. Notices given under this Agreement shall be in writing and delivered by first class, certified mail, by nationally-recognized overnight\ncarrier service or by email (followed by overnight delivery by a nationally-recognized overnight carrier service) to each signatory at the\naddresses identified on page 1 of this Agreement unless changed by written notice. Unless changed by written notice, notices to Borderfree\nshall be sent to the address set forth above to: Attention Michael DeSimone, Chief Executive Officer, with a copy to Office of the General\nCounsel; and notices to PBI shall be sent to the address set forth above to: Attention: Jeff Brennan, Vice President, Corporate\nDevelopment & Strategy with a copy to: Attention: Office of the General Counsel.\n15. The Disclosing Party does not intend to waive any of the attorney-client privilege, work product doctrine or other applicable privilege with\nrespect to any of its Confidential Information or other materials. To the extent that any Confidential Information or other materials may\ninadvertently include such privileged information, upon the Disclosing Party’s request the Receiving Party and its Representatives will\nimmediately destroy or return any such Confidential Information and other materials.\n16. This Agreement supersedes all prior agreements, understandings, representations and statements, whether oral or written, between the\nparties relating to the subject matter of this Agreement. In the event that the terms or conditions of use or confidentiality or non-disclosure\nprovision of any electronic data room established or maintained by either party or its Representatives conflicts with the terms of this\nAgreement, the terms of this Agreement shall govern. This Agreement contains the entire Agreement between the parties hereto concerning\nthe subject matter hereof, and no provision of this Agreement may be waived, in whole or in part, nor any consent given, unless approved\nin writing by a duly authorized representative of the party providing such waiver or consent, which writing specifically refers to this\nAgreement and the provision for which such waiver or consent is given. In the event that any provision of this Agreement is deemed\ninvalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way\nbe affected or impaired thereby.\n17. The terms of this Agreement may be changed, amended or modified, in whole or in part, only by subsequent written agreement duly\nexecuted by an authorized representative of each party. Neither party may assign this Agreement without the prior written consent of the\nother party. This Agreement shall be binding on, and shall inure to the benefit of and shall be enforceable by, the parties and their\nsuccessors and permitted assigns. For the convenience of the parties, this Agreement may be executed by exchange of electronic signatures\nand in counterparts, each of which shall be deemed to be an original, and both of which taken together, shall constitute one Agreement\nbinding on both parties.\n18. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to contracts between\nresidents of that State and executed in and to be performed entirely within that State. Each party hereto consents to personal jurisdiction in\nthat State and voluntarily submits to the jurisdiction of the federal and state courts located in the Delaware in any action or proceeding with\nrespect to this Agreement and each party irrevocably waives the right to assert the doctrine of forum non conveniens or a similar doctrine\nor to object to venue with respect to any action or proceeding brought in any such court. Each party agrees that it may be served with\nprocess at its address set forth on the first page hereof.\n19. Each party assures the other that it does not intend to, and will not, export or re-export any technical information received under this\nAgreement, including but not limited to Confidential Information, without compliance with all export control regulations applicable to the\nDisclosing Party.\n20. Each party acknowledges that it may receive material non-public information in connection with its evaluation of the Transaction and that\nit is aware (and will so advise any person, including its Representatives, to whom it provides Confidential Information) that the United\nStates and other securities laws as may be applicable impose restrictions on trading in securities when in possession of such information\nand such laws prohibit the communication of such information to any other person when it is reasonably foreseeable that such other person\nis likely to purchase or sell such securities in reliance upon such information. The Disclosing Party acknowledges that it is not acting as an\nadvisor to the Receiving Party and will not receive any amount that could be construed as a “minimum fee” within the meaning of United\nStates Treas. Reg. Section 1.6011 -4(b)(3) (or any successor thereto). In the event one party claims that the Transaction is a proprietary or\nexclusive transaction, then that party will confirm in writing to the other party that there is no limitation on disclosure of the United States\nfederal tax treatment or tax structure of the Transaction.\n21. No failure or delay by a party to this Agreement in exercising any right, power or privilege under this Agreement shall operate as a waiver\nthereof, nor will any single or partial exercise thereof preclude any other right or further exercise thereof or the exercise of any other right,\npower or privilege.\n22. This Agreement shall terminate three (3) years from the Effective Date, and upon termination, neither party shall thereafter have any\nobligation to the other party under this Agreement.\nIN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement.\nPITNEY BOWES INC.\nBORDERFREE, INC.\nBy:\n/s/ Jeff Brennan\n(sign) By:\n/s/ Michael DeSimone\n(sign)\nName: Jeff Brennan\nName: Michael DeSimone\nTitle: VP, Corporate Development & Strategy\nTitle: Chief Executive Officer\n[Signature Page to Non-Disclosure Agreement]\nEXHIBIT A\nBorderfree Contact Information\nAll inquiries should be directed to any of the individuals listed below.\nDean Gels\nVice President, Corporate Development\nBorderfree, Inc.\n292 Madison Avenue, 17th Floor\nNew York, NY 10017\nPhone: 212.299 .3563\nEmail: dean.gels@borderfree.com\nEd Neumann\nChief Financial Officer\nBorderfree, Inc.\n292 Madison Avenue, 17th Floor\nNew York, NY 10017\nPhone: 212.299 .3528\nEmail: ed.neumann@borderfree.com\nMichael DeSimone\nChief Executive Officer\nBorderfree, Inc.\n292 Madison Avenue, 17th Floor\nNew York, NY 10017\nPhone: 212.299 .3586\nEmail: mike@borderfree.com\nPBI Contact Information\nAll inquiries should be directed to any of the individuals listed below.\nRonny B. Iversen\nCorporate Development\nPitney Bowes Inc.\n3001 Summer Street, Stamford, CT 06926-0700\nPhone: 203.351.6422\nE-mail: Ronny.Iversen@pb.com\nJeff Brennan\nVice President, Corporate Development & Strategy\nPitney Bowes Inc.\n3001 Summer Street, Stamford, CT 06926-0700\nPhone: 203.351.7566\nE-mail: Jeff.Brennan@pb.com
+e29c3877a103aaefcf77ebb110f981a5.pdf	effective_date jurisdiction party term	EX-10.4 2 dex104.htm FORM OF NON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY\nAGREEMENT\nExhibit 10.4\nNON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT (hereinafter “Agreement”), dated and\neffective as of the date that you,\n, sign this Agreement, describes various conditions of your employment, including the obligations owed\nto Tyco Healthcare Group LP d/b/a Covidien and any of its parents, subsidiaries, successors, assigns or affiliated entities (hereinafter “Company”) by\nyou regarding competition with Company, the hiring of Company’s employees, solicitation of Company’s customers, and the maintenance of\nconfidential information important to Company’s business.\nCONSIDERATION\nYou acknowledge that the Company is engaged in a highly competitive industry. You further acknowledge that, as part of your employment\nwith the Company, you will have access to and/or gain knowledge of trade secrets and “Confidential Information” (as defined below) that is vital to\nthe interests and success of the Company.\nIn exchange for this Agreement, the Company awarded to you [number] non-qualified stock options, [number] restricted stock units and\n[number] performance share units on December 1, 2008 (collectively, “FY 2009 Equity Grant”) as consideration for your promises and contractual\nobligations as specified in this Agreement. You acknowledge that this FY 2009 Equity Grant constitutes adequate consideration even before it vests\nand regardless of the monetary value that results. As further consideration for this Agreement, and contemporaneous with its signing, the Company\nagrees to provide you with knowledge of its trade secrets and Confidential Information, with specialized, business-related education and training\nregarding the Company’s methodologies and business strategies, which will enable you to perform your job with the Company, with supplies and\nmaterials necessary for you to perform your job with the Company, and with goodwill in customer and other business relationships. You\nacknowledge that all of these items are necessary and desirable for your personal success as an employee of the Company.\nYou acknowledge that you are not previously or otherwise already entitled to the consideration described herein in exchange for the\nagreements specified herein. In exchange for this consideration and as a condition of your employment or continued employment if you are an\nexisting employee, you agree to the following.\nI. CONFIDENTIAL INFORMATION\nA. Nondisclosure of Confidential Information. You agree that during your employment with the Company and at any time thereafter, you will\nnot disclose to any other person or organization, or make or permit any use of, any of the Company’s Confidential Information. Additionally, the\nCompany specifically reserves its rights under any applicable common or statutory law regarding trade secrets, and prohibits disclosure and/or use of\ninformation which meets the definition of trade secrets under these common or statutory laws.\nB. “Confidential Information” Defined. “Confidential Information” means information in whatever form, including but not limited to hard\ncopy, electronically stored or in your memory, related to the operation of the Company that is not generally known to or readily ascertainable by\nother persons who might seek or accept such information for their own business use. The following is a non-exclusive list of information that\nconstitutes Confidential Information meeting the above definition: (1) information of a technical nature such as inventions; methods; processes;\ntechniques; ideas; data; equipment; computer programs; developments; designs; and technical expertise and know-how developed by the Company;\n(2) information of a commercial nature such as trademarks; information about costs, purchasing, profits, prices, markets, sales, contracts, and selling\nstrategies; lists of customers and employees; proposals made to current or prospective clients or customers or other information contained in bids or\noffers to such clients or customers; the arrangements and/or agreement, pricing, layout, design and implementation of client and/or customer-specific\nprojects; the identity of vendors and vendor pricing information; financial, marketing and sales information; and (3) information of a strategic nature\nsuch as future developments or strategies pertaining to research, development, marketing and sales; and other similar matters concerning the\nCompany’s planning.\nPage1of6\nC. Return of Confidential Information. Upon your separation from employment for any reason, the termination of your access to any\nConfidential Information or upon request by the Company, you shall return to the Company all electronic and hard-copy documents and materials\nbelonging to the Company, whether kept at your business office, personal residence or otherwise, including all materials containing or relating to any\nConfidential Information in any written or tangible form that you may have in your possession or control and including electronic equipment. After\nreturning the materials described in the preceding sentence to the Company, you shall not retain any copies of any such materials.\nD. Confidential Information of Clients and Vendors. You acknowledge that it is essential to the Company’s continued success to maintain the\nconfidentiality of all client and vendor information and trade secrets. Therefore, you agree not to use or disclose any confidential client or vendor\ninformation except as may be needed to conduct the Company’s business for the specific client or vendor. Upon your separation from employment\nwith the Company, you agree to deliver to an appropriate representative of the Company, without retaining any copies, notes or excerpts thereof, any\nand all documents and information that reference client or vendor information.\nE. Third-Party Confidentiality Agreements. You acknowledge that the Company from time to time may have agreements with other persons or\nentities that impose obligations or restrictions on the Company regarding inventions made during the course of work under such agreements, the\nconfidential nature of such work, or information about or owned by such person or entity. You agree to be bound by all such obligations and\nrestrictions as are made known to you and to take all action necessary to discharge the obligations of the Company under such agreements.\nII. INVENTIONS\nA. You shall promptly disclose to the Company all Inventions (as defined in Subsection II.B), which are made or conceived by you, either\nalone or with others, during the term of your employment with the Company, whether or not during working hours. Such Inventions directly or\nindirectly relate to matters within the scope of your duties or field of responsibility during your employment with the Company, or are based on your\nknowledge of the actual or anticipated business or interests of the Company, or are aided by the use of time, materials, facilities, or information of\nthe Company. You will not assert any rights under or to any Inventions as having been made or acquired by you prior to being employed by the\nCompany unless such Inventions have been identified to the Company in writing on a document signed by you at the time of hire. In addition, in\norder to avoid any dispute as to the date on which Inventions were made or conceived by you, they shall be deemed to have been made or conceived\nduring your employment with the Company if you take affirmative steps to have them reduced to practice either during the term of your employment\nor within one year after separation from employment.\nB. Herein, “Invention” means, whether or not patentable or copyrightable, the conception, discovery or reduction to practice of any new idea,\ntechnology, device, method, design, trade secret, composition of matter or any improvement thereto, including but not limited to any new articles of\nmanufacture or any improvement to existing articles of manufacture, any new apparatus or processes/methods for making or using a composition of\nmatter or article of manufacture, any computer software or any designs relating thereto, which relate to the Company’s actual or anticipated business\nor research activities or are suggested by or which result directly or indirectly from use of the Company’s information, time, materials, or facilities.\nC. You agree that all Inventions that are, or are deemed to be, made or conceived by you during employment with the Company shall, to the\nextent permitted by law, be the exclusive property of the Company, and you hereby assign to the Company your entire worldwide right, title, and\ninterest in and to any and all such Inventions. Whenever requested to do so by the Company, you shall execute any applications, assignments, or\nother instruments which the Company may consider necessary or advisable to apply for and obtain letters patent or copyrights in the United States or\nin any foreign country, or to otherwise record or protect the\nPage2of6\nCompany’s interest in such Inventions. In the event that you refuse to sign such an application, assignment, or other instrument, or, whether because\nof your physical or mental incapacity or for any other reason whatsoever, the Company is otherwise unable, after reasonable effort, to secure your\nsignature on any such application, assignment, or other instrument, you hereby irrevocably appoint the Company and its duly authorized officers and\nagents as your agent and attorney-in-fact to act for and in your behalf and stead to execute and file any such applications, assignments, and\ninstruments and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent, copyrights, and other analogous\nprotections with the same legal force and effect as if executed by you. The obligations of this Subsection shall continue perpetually beyond the\nperiod of your employment with the Company and are not modified by any incentive payments made for an Invention or otherwise subject to any\nprovisions of a Company patent incentive award policy as may change from time to time.\nIII. RESTRICTIVE COVENANTS\nFor the good and valuable consideration recited herein, the receipt and sufficiency of which is hereby acknowledged, and in order to protect\nthe Company’s legitimate business interests, you agree as follows:\nA. Non-Competition:\n1. During your employment with the Company and for a period of twelve (12) months after your separation from employment for any\nreason (the “Restricted Period”), you will not, directly or indirectly, own, manage, operate, control, be employed by or otherwise provide services\n(whether as an employee consultant, independent contractor or otherwise, and whether or not for compensation) to any person, firm, corporation or\nother entity, in whatever form, engaged in any Competing Business. For purposes of this Agreement “Competing Business” is any entity (including\nany of its subsidiaries or affiliates) that produces a product or performs a service that is the same as or similar to, may be substituted for, or is\nintended to be used for any of the same purposes as a product or service produced, performed or under development by the Company. However,\nnotwithstanding any provision in this Subsection III.A, you may work for a Competing Business whose business is diversified, provided your work\nfor the Competing Business does not involve selling, managing, overseeing, developing, creating, promoting, servicing, involvement in the finance\nand/or accounting of, or other responsibility for any product, process, service or technology that resembles or competes with the those of the\nCompany on which you have worked or gained Confidential Information during the last 24 months of your employment (“Restricted Product or\nService”). Prior to accepting such employment, you and the Competing Business must provide the Company with written assurances satisfactory to\nthe Company that you will not render services directly or indirectly, for the 12-month Restricted Period, in connection with any Restricted Product or\nService and that any necessary safeguards or procedures have been put in place to ensure that this does not happen. Nothing in this Agreement shall\nprevent you from owning not more than one percent of the total shares of all classes of stock outstanding of any publicly held entity engaged in a\nCompeting Business.\n2. This restriction applies in the United States and also applies in any foreign country or foreign territory in which the services you will\nprovide could enhance the use or marketability of a Restricted Product or Service, use the Company’s goodwill, or otherwise interfere with any of\nthe Company’s protectable interests. Notwithstanding any other provision of this Subsection III.A, if at the time of separation from employment,\nyour primary area of responsibility involves sale of products within a certain geographic area, then the restrictions set forth in this Subsection III.A\nshall include and be limited to: (a) the geographic area that, directly or indirectly, was covered by either you or by employees, distributors, agents or\nrepresentatives who reported to you at any time during the 24-month period preceding your separation from employment; and/or (b) any geographic\narea in which you provided services, whether directly or indirectly, at any time during such 24-month period preceding separation from employment.\n3. If despite diligent and aggressive effort, after separation from employment for any reason you are unable to obtain employment\nconsistent with your education or training solely because of the provisions of this Subsection III.A, then such prohibition shall bind you only if and\nas long as the Company pays\nPage3of6\nyou a sum equal to your monthly base salary in effect on your employment termination date for each month of such unemployment during the 12-\nmonth Restricted Period. You will be eligible to receive this pay only if the Company determines, in its sole discretion, that you have provided\ninformation to the Company substantiating your efforts, the fact that your inability to find employment is due exclusively to the provisions of this\nSubsection III.A, and any other information that the Company deems relevant. For purposes of this provision “base salary” excludes bonuses, stock\noptions, restricted stock/share units, performance share units, commissions, incentive pay or other similar compensation or benefits and is subject to\nregular deductions for income taxes, Social Security and Medicare taxes and other deductions required by law. For each month of unemployment in\nwhich you receive payment under this provision, you must provide evidence that you have diligently and aggressively sought employment, and\nfailure to do so or to accept any reasonable offer, as determined in the sole discretion of the Company, will result in discontinuation of payments.\nPayments under this provision will be reduced by any other amounts that you receive during this period (including but not limited to unemployment\ncompensation, severance, and income earned as an employee, consultant or contractor from any employer or organization), and failure to disclose\nsuch amounts shall result in the discontinuation of payments and the Company shall have the right to recover prior payments made to you pursuant\nto Subsection III.A. The Company retains the sole right and discretion to determine whether you have engaged in reasonable efforts to secure a\nposition that is not in violation of Subsection III.A, and whether the failure to find a position is due to the restrictions in that Subsection. In addition,\nyou will not be eligible for payment under this provision if you have (a) breached your duty of loyalty to the Company, (b) breached any provision of\nthis Agreement, (c) breached any other agreement with the Company, including a breach of any Company rule or policy, (d) been terminated for\nCause (as hereinafter defined or as defined in any applicable Company plan or agreement), or (e) otherwise acted in bad faith or contrary to law. For\npurposes of this provision, “Cause” means any act of gross negligence; any act of misconduct; any fraudulent act or misrepresentation; violation of\napplicable law; any act involving dishonesty or moral turpitude; and/or refusal to comply with any of the Company’s reasonable directions,\nprocedures or policies.\nB. Non-Solicitation of Customers. During your employment and for a period of twelve (12) months after your separation from employment for\nany reason from the Company (the “Restricted Period”), you will not solicit, induce, attempt to induce, or provide any services to any current\nCompany Customer (defined as any Customer of the Company with whom you had dealings and/or for whom you performed services during the last\ntwenty-four (24) months of your employment with Company) to do business with you on your own behalf or on behalf of any Competing Business.\nC. Non-Solicitation of Employees. During the duration of your employment and for a period of twelve (12) months after your separation from\nemployment for any reason from the Company (the “Restricted Period”), you will not solicit, interfere with, encourage or endeavor to cause any\nother employee or independent contractor of the Company to leave his/her employment (or independent contractor assignment) with the Company.\nD. Acknowledgements:\n1. You acknowledge that the Company’s legitimate business interests include but are not limited to protecting trade secrets and secret,\nproprietary or confidential information (including but not limited to trade secrets as defined by applicable statutes and Confidential Information as\ndefined in Section I of this Agreement), knowledge and data; protecting customer lists; protecting customer relationships; protecting goodwill; and\nprotecting time and expense of training employees. You agree that each restriction in this Agreement is reasonable as to the time, territory, and line\nof business, and is reasonably necessary to protect the Company’s legitimate business interests.\n2. You acknowledge that Covidien is a large global healthcare company which researches, develops and supplies a large variety of\nhealthcare products and services including but not limited to medical devices, medical supplies, imaging solutions and pharmaceuticals all over the\nworld. As such, your position gives you access to highly confidential and proprietary global business related company strategies and information,\nand you acknowledge that global geographic restrictions are reasonable.\nPage4of6\n3. You acknowledge that your breach of any obligation under this Agreement will constitute immediate and irreparable damage to the\nCompany, which cannot be fully and adequately compensated in money damages and which will warrant preliminary and other injunctive relief, an\norder for specific performance, and other equitable relief. Further, you understand other action may be taken and remedies enforced against you,\nincluding but not limited to money damages and forfeiture of the FY 2009 Equity Grant which you received as consideration for this Agreement.\nYou will indemnify and hold the Company harmless from all costs (including all reasonable attorneys fees), damages and liabilities the Company\nincurs as a result of your breach of any provision of this Agreement. You further acknowledge that your general knowledge and skill are such that\nenforcement of Sections I, II and III of this Agreement by injunction will not prevent you from earning a livelihood.\n4. You acknowledge that if the Company determines, in its sole discretion, that you violated any covenant set forth in this Agreement\n(“Company Determination”), then the Restricted Period will be extended for a period of time equal to the period of time that you are in violation of\nthe Agreement, to the extent allowed by law. In addition, any portion of the FY 2009 Equity Grant that has not vested (with respect to restricted\nstock units or performance share units) or that you have not exercised (with respect to stock options, whether vested or unvested) on the Company\nDetermination date will immediately be rescinded, and you will forfeit any rights you have with respect to the unvested or unexercised portion of the\nFY 2009 Equity Grant. Also, you hereby agree and promise to deliver to the Company, immediately upon the Company Determination date, shares\n(or, in the discretion of the Company, cash) equal in value to the amount of any profit you realized upon the exercise of any stock options or the\nvesting of any restricted stock units or performance share units (all of which being awarded as part of the FY 2009 Equity Grant) that occurred\nduring the period that begins 12 months immediately prior to your termination of employment and ends on the Company Determination date.\nIV. GENERAL PROVISIONS\nA. If you contend that any restriction on activities imposed under Sections I, II. or III. of this Agreement is not enforceable, does not apply to\nan activity in which you intend to engage, or should not be enforced against you, you will notify the Vice President of Human Resources for your\nGlobal Business Unit (or if you work in a corporate function, the Human Resources Vice President for Corporate) in writing at least 14 days before\nengaging in such activity so that the Company and you may address and resolve any such issues.\nB. This Agreement, along with any agreement that you have previously signed regarding non-disclosure of information and/or inventions,\ncontains the entire understanding between the parties with respect to the subject matter within each agreement. This Agreement may not be modified\nor amended except by an agreement in writing signed by both parties.\nC. The headings in this Agreement are included for convenience of reference, and in the event of any conflict between such headings and the\ntext of this Agreement, the text will control.\nD. The invalidity or unenforceability of any provision of this Agreement as applied to a particular occurrence or circumstance or otherwise\nshall not affect the validity, enforceability, and applicability of any other provision of this Agreement. Indeed, the Company and you ask any\nreviewing court to reform, rewrite, revise, edit or blue pencil (strike through the least amount of words, phrases, or sections) any provision in the\nAgreement determined to be unenforceable for any reason to make the Agreement enforceable.\nE. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, affiliated entities,\nassigns, heirs, and personal representatives; provided, however, that you may not assign any of your rights, title or interest in this Agreement.\nSpecifically, any respective successors, assigns, heirs, and personal representatives, parent, subsidiary or affiliated entity of the Company shall have\nthe right to the enforcement of the restrictive covenants contained herein.\nF. The Company’s failure to insist upon your strict compliance with any provision of this Agreement shall not be deemed a waiver of such\nprovision or of any other provision in this Agreement.\nPage5of6\nG. You understand and agree that the Company may notify anyone employing you or evidencing an intent to employ you after your separation\nfrom employment for any reason as to the existence of the provisions of this Agreement. You also agree to (a) disclose this Agreement to any\nprospective employer prior to accepting employment during any Restrictive Period provided in this Agreement and (b) inform the Company at the\ntime you give notice of separation from employment, of the identity of your new employer and of the job title and responsibilities.\nH. The Company has its principal place of business in Massachusetts. The validity, performance, construction and effect of this Agreement\nshall be construed, enforced and governed in accordance with the laws of the Commonwealth of Massachusetts without regard to its conflict of laws\nprinciples. You irrevocably consent to personal jurisdiction in the state courts of Massachusetts and the U.S . District Court for the District of\nMassachusetts for any action arising out of this Agreement, regardless of where you reside or perform duties.\nI. This Agreement, or certain portions thereof, will not be enforced where applicable law, regulations or professional rules prohibit or limit\nenforceability. Nothing in this provision shall limit the enforceability of the Choice of Law, Jurisdiction and Venue provision in Subsection IV.H .\nJ. Nothing in this Agreement shall be deemed to confer on you any rights with respect to the duration of your employment with the Company.\nYOU UNDERSTAND AND AGREE THAT YOUR EMPLOYMENT RELATIONSHIP WITH THE COMPANY IS TERMINABLE AT WILL BY\nEITHER THE COMPANY OR YOU, WITH OR WITHOUT CAUSE AND WITH OR WITHOUT NOTICE, AND NOTHING IN THIS\nAGREEMENT ALTERS THAT AT-WILL RELATIONSHIP.\nK. You acknowledge and agree that all of your obligations herein shall survive and be a condition of any change in your employment status,\nwhether in the form of a promotion or a change in job title, compensation, responsibilities, or any other aspect of your employment. You further\nagree that your obligations hereunder will survive such change in your employment status without the need for you to re-execute this or a similar\nagreement or to otherwise re-affirm these obligations. Nonetheless, you may be asked to re-execute this or a similar agreement or to otherwise re-\naffirm these obligations as a condition of a promotion, and you agree to do so if asked.\nI ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT; UNDERSTAND MY OBLIGATIONS UNDER THIS\nAGREEMENT; SIGN IT VOLUNTARILY, AND INTEND TO BE LEGALLY BOUND BY THIS AGREEMENT.\nEMPLOYEE\nSignature\nDate\nPrinted Name\nCOMPANY\nSignature\nDate\nPrinted Name\nTitle\nPage6of6	EX-10.4 2 dex104.htm FORM OF NON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY\nAGREEMENT\nExhibit 10.4\nNON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT (hereinafter “Agreement”), dated and\neffective as of the date that you, sign this Agreement, describes various conditions of your employment, including the obligations owed\nto Tyco Healthcare Group LP d/b/a Covidien and any of its parents, subsidiaries, successors, assigns or affiliated entities (hereinafter “Company”) by\nyou regarding competition with Company, the hiring of Company’s employees, solicitation of Company’s customers, and the maintenance of\nconfidential information important to Company’s business.\n \nCONSIDERATION\nYou acknowledge that the Company is engaged in a highly competitive industry. You further acknowledge that, as part of your employment\nwith the Company, you will have access to and/or gain knowledge of trade secrets and “Confidential Information” (as defined below) that is vital to\nthe interests and success of the Company.\nIn exchange for this Agreement, the Company awarded to you [number] non-qualified stock options, [number] restricted stock units and\n[number] performance share units on December 1, 2008 (collectively, “FY 2009 Equity Grant”) as consideration for your promises and contractual\nobligations as specified in this Agreement. You acknowledge that this F'Y 2009 Equity Grant constitutes adequate consideration even before it vests\nand regardless of the monetary value that results. As further consideration for this Agreement, and contemporaneous with its signing, the Company\nagrees to provide you with knowledge of its trade secrets and Confidential Information, with specialized, business-related education and training\nregarding the Company’s methodologies and business strategies, which will enable you to perform your job with the Company, with supplies and\nmaterials necessary for you to perform your job with the Company, and with goodwill in customer and other business relationships. You\nacknowledge that all of these items are necessary and desirable for your personal success as an employee of the Company.\nYou acknowledge that you are not previously or otherwise already entitled to the consideration described herein in exchange for the\nagreements specified herein. In exchange for this consideration and as a condition of your employment or continued employment if you are an\nexisting employee, you agree to the following.\nI. CONFIDENTIAL INFORMATION\nA. Nondisclosure of Confidential Information. You agree that during your employment with the Company and at any time thereafter, you will\nnot disclose to any other person or organization, or make or permit any use of, any of the Company’s Confidential Information. Additionally, the\nCompany specifically reserves its rights under any applicable common or statutory law regarding trade secrets, and prohibits disclosure and/or use of\ninformation which meets the definition of trade secrets under these common or statutory laws.\nB. “Confidential Information” Defined. “Confidential Information” means information in whatever form, including but not limited to hard\ncopy, electronically stored or in your memory, related to the operation of the Company that is not generally known to or readily ascertainable by\nother persons who might seek or accept such information for their own business use. The following is a non-exclusive list of information that\nconstitutes Confidential Information meeting the above definition: (1) information of a technical nature such as inventions; methods; processes;\ntechniques; ideas; data; equipment; computer programs; developments; designs; and technical expertise and know-how developed by the Company;\n(2) information of a commercial nature such as trademarks; information about costs, purchasing, profits, prices, markets, sales, contracts, and selling\nstrategies; lists of customers and employees; proposals made to current or prospective clients or customers or other information contained in bids or\noffers to such clients or customers; the arrangements and/or agreement, pricing, layout, design and implementation of client and/or customer-specific\nprojects; the identity of vendors and vendor pricing information; financial, marketing and sales information; and (3) information of a strategic nature\nsuch as future developments or strategies pertaining to research, development, marketing and sales; and other similar matters concerning the\nCompany’s planning.\nPage 1 0of 6\nC. Return of Confidential Information. Upon your separation from employment for any reason, the termination of your access to any\nConfidential Information or upon request by the Company, you shall return to the Company all electronic and hard-copy documents and materials\nbelonging to the Company, whether kept at your business office, personal residence or otherwise, including all materials containing or relating to any\nConfidential Information in any written or tangible form that you may have in your possession or control and including electronic equipment. After\nreturning the materials described in the preceding sentence to the Company, you shall not retain any copies of any such materials.\nD. Confidential Information of Clients and Vendors. You acknowledge that it is essential to the Company’s continued success to maintain the\nconfidentiality of all client and vendor information and trade secrets. Therefore, you agree not to use or disclose any confidential client or vendor\ninformation except as may be needed to conduct the Company’s business for the specific client or vendor. Upon your separation from employment\nwith the Company, you agree to deliver to an appropriate representative of the Company, without retaining any copies, notes or excerpts thereof, any\nand all documents and information that reference client or vendor information.\nE. Third-Party Confidentiality Agreements. You acknowledge that the Company from time to time may have agreements with other persons or\nentities that impose obligations or restrictions on the Company regarding inventions made during the course of work under such agreements, the\nconfidential nature of such work, or information about or owned by such person or entity. You agree to be bound by all such obligations and\nrestrictions as are made known to you and to take all action necessary to discharge the obligations of the Company under such agreements.\nII. INVENTIONS\nA. You shall promptly disclose to the Company all Inventions (as defined in Subsection II.B), which are made or conceived by you, either\nalone or with others, during the term of your employment with the Company, whether or not during working hours. Such Inventions directly or\nindirectly relate to matters within the scope of your duties or field of responsibility during your employment with the Company, or are based on your\nknowledge of the actual or anticipated business or interests of the Company, or are aided by the use of time, materials, facilities, or information of\nthe Company. You will not assert any rights under or to any Inventions as having been made or acquired by you prior to being employed by the\nCompany unless such Inventions have been identified to the Company in writing on a document signed by you at the time of hire. In addition, in\norder to avoid any dispute as to the date on which Inventions were made or conceived by you, they shall be deemed to have been made or conceived\nduring your employment with the Company if you take affirmative steps to have them reduced to practice either during the term of your employment\nor within one year after separation from employment.\nB. Herein, “Invention” means, whether or not patentable or copyrightable, the conception, discovery or reduction to practice of any new idea,\ntechnology, device, method, design, trade secret, composition of matter or any improvement thereto, including but not limited to any new articles of\nmanufacture or any improvement to existing articles of manufacture, any new apparatus or processes/methods for making or using a composition of\nmatter or article of manufacture, any computer software or any designs relating thereto, which relate to the Company’s actual or anticipated business\nor research activities or are suggested by or which result directly or indirectly from use of the Company’s information, time, materials, or facilities.\nC. You agree that all Inventions that are, or are deemed to be, made or conceived by you during employment with the Company shall, to the\nextent permitted by law, be the exclusive property of the Company, and you hereby assign to the Company your entire worldwide right, title, and\ninterest in and to any and all such Inventions. Whenever requested to do so by the Company, you shall execute any applications, assignments, or\nother instruments which the Company may consider necessary or advisable to apply for and obtain letters patent or copyrights in the United States or\nin any foreign country, or to otherwise record or protect the\nPage 2 of 6\nCompany’s interest in such Inventions. In the event that you refuse to sign such an application, assignment, or other instrument, or, whether because\nof your physical or mental incapacity or for any other reason whatsoever, the Company is otherwise unable, after reasonable effort, to secure your\nsignature on any such application, assignment, or other instrument, you hereby irrevocably appoint the Company and its duly authorized officers and\nagents as your agent and attorney-in-fact to act for and in your behalf and stead to execute and file any such applications, assignments, and\ninstruments and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent, copyrights, and other analogous\nprotections with the same legal force and effect as if executed by you. The obligations of this Subsection shall continue perpetually beyond the\nperiod of your employment with the Company and are not modified by any incentive payments made for an Invention or otherwise subject to any\nprovisions of a Company patent incentive award policy as may change from time to time.\nIII. RESTRICTIVE COVENANTS\nFor the good and valuable consideration recited herein, the receipt and sufficiency of which is hereby acknowledged, and in order to protect\nthe Company’s legitimate business interests, you agree as follows:\nA. Non-Competition:\n1. During your employment with the Company and for a period of twelve (12) months after your separation from employment for any\nreason (the “Restricted Period”), you will not, directly or indirectly, own, manage, operate, control, be employed by or otherwise provide services\n(whether as an employee consultant, independent contractor or otherwise, and whether or not for compensation) to any person, firm, corporation or\nother entity, in whatever form, engaged in any Competing Business. For purposes of this Agreement “Competing Business” is any entity (including\nany of its subsidiaries or affiliates) that produces a product or performs a service that is the same as or similar to, may be substituted for, or is\nintended to be used for any of the same purposes as a product or service produced, performed or under development by the Company. However,\nnotwithstanding any provision in this Subsection III.A, you may work for a Competing Business whose business is diversified, provided your work\nfor the Competing Business does not involve selling, managing, overseeing, developing, creating, promoting, servicing, involvement in the finance\nand/or accounting of, or other responsibility for any product, process, service or technology that resembles or competes with the those of the\nCompany on which you have worked or gained Confidential Information during the last 24 months of your employment (“Restricted Product or\nService”). Prior to accepting such employment, you and the Competing Business must provide the Company with written assurances satisfactory to\nthe Company that you will not render services directly or indirectly, for the 12-month Restricted Period, in connection with any Restricted Product or\nService and that any necessary safeguards or procedures have been put in place to ensure that this does not happen. Nothing in this Agreement shall\nprevent you from owning not more than one percent of the total shares of all classes of stock outstanding of any publicly held entity engaged in a\nCompeting Business.\n2. This restriction applies in the United States and also applies in any foreign country or foreign territory in which the services you will\nprovide could enhance the use or marketability of a Restricted Product or Service, use the Company’s goodwill, or otherwise interfere with any of\nthe Company’s protectable interests. Notwithstanding any other provision of this Subsection III. A, if at the time of separation from employment,\nyour primary area of responsibility involves sale of products within a certain geographic area, then the restrictions set forth in this Subsection III.A\nshall include and be limited to: (a) the geographic area that, directly or indirectly, was covered by either you or by employees, distributors, agents or\nrepresentatives who reported to you at any time during the 24-month period preceding your separation from employment; and/or (b) any geographic\narea in which you provided services, whether directly or indirectly, at any time during such 24-month period preceding separation from employment.\n3. If despite diligent and aggressive effort, after separation from employment for any reason you are unable to obtain employment\nconsistent with your education or training solely because of the provisions of this Subsection III.A, then such prohibition shall bind you only if and\nas long as the Company pays\nPage 3 of 6\nyou a sum equal to your monthly base salary in effect on your employment termination date for each month of such unemployment during the 12-\nmonth Restricted Period. You will be eligible to receive this pay only if the Company determines, in its sole discretion, that you have provided\ninformation to the Company substantiating your efforts, the fact that your inability to find employment is due exclusively to the provisions of this\nSubsection III.A, and any other information that the Company deems relevant. For purposes of this provision “base salary” excludes bonuses, stock\noptions, restricted stock/share units, performance share units, commissions, incentive pay or other similar compensation or benefits and is subject to\nregular deductions for income taxes, Social Security and Medicare taxes and other deductions required by law. For each month of unemployment in\nwhich you receive payment under this provision, you must provide evidence that you have diligently and aggressively sought employment, and\nfailure to do so or to accept any reasonable offer, as determined in the sole discretion of the Company, will result in discontinuation of payments.\nPayments under this provision will be reduced by any other amounts that you receive during this period (including but not limited to unemployment\ncompensation, severance, and income earned as an employee, consultant or contractor from any employer or organization), and failure to disclose\nsuch amounts shall result in the discontinuation of payments and the Company shall have the right to recover prior payments made to you pursuant\nto Subsection III.A. The Company retains the sole right and discretion to determine whether you have engaged in reasonable efforts to secure a\nposition that is not in violation of Subsection III.A, and whether the failure to find a position is due to the restrictions in that Subsection. In addition,\nyou will not be eligible for payment under this provision if you have (a) breached your duty of loyalty to the Company, (b) breached any provision of\nthis Agreement, (c) breached any other agreement with the Company, including a breach of any Company rule or policy, (d) been terminated for\nCause (as hereinafter defined or as defined in any applicable Company plan or agreement), or (e) otherwise acted in bad faith or contrary to law. For\npurposes of this provision, “Cause” means any act of gross negligence; any act of misconduct; any fraudulent act or misrepresentation; violation of\napplicable law; any act involving dishonesty or moral turpitude; and/or refusal to comply with any of the Company’s reasonable directions,\nprocedures or policies.\nB. Non-Solicitation of Customers. During your employment and for a period of twelve (12) months after your separation from employment for\nany reason from the Company (the “Restricted Period”), you will not solicit, induce, attempt to induce, or provide any services to any current\nCompany Customer (defined as any Customer of the Company with whom you had dealings and/or for whom you performed services during the last\ntwenty-four (24) months of your employment with Company) to do business with you on your own behalf or on behalf of any Competing Business.\nC. Non-Solicitation of Employees. During the duration of your employment and for a period of twelve (12) months after your separation from\nemployment for any reason from the Company (the “Restricted Period”), you will not solicit, interfere with, encourage or endeavor to cause any\nother employee or independent contractor of the Company to leave his/her employment (or independent contractor assignment) with the Company.\nD. Acknowledgements:\n1. You acknowledge that the Company’s legitimate business interests include but are not limited to protecting trade secrets and secret,\nproprietary or confidential information (including but not limited to trade secrets as defined by applicable statutes and Confidential Information as\ndefined in Section I of this Agreement), knowledge and data; protecting customer lists; protecting customer relationships; protecting goodwill; and\nprotecting time and expense of training employees. You agree that each restriction in this Agreement is reasonable as to the time, territory, and line\nof business, and is reasonably necessary to protect the Company’s legitimate business interests.\n2. You acknowledge that Covidien is a large global healthcare company which researches, develops and supplies a large variety of\nhealthcare products and services including but not limited to medical devices, medical supplies, imaging solutions and pharmaceuticals all over the\nworld. As such, your position gives you access to highly confidential and proprietary global business related company strategies and information,\nand you acknowledge that global geographic restrictions are reasonable.\nPage 4 of 6\n3. You acknowledge that your breach of any obligation under this Agreement will constitute immediate and irreparable damage to the\nCompany, which cannot be fully and adequately compensated in money damages and which will warrant preliminary and other injunctive relief, an\norder for specific performance, and other equitable relief. Further, you understand other action may be taken and remedies enforced against you,\nincluding but not limited to money damages and forfeiture of the FY 2009 Equity Grant which you received as consideration for this Agreement.\nYou will indemnify and hold the Company harmless from all costs (including all reasonable attorneys fees), damages and liabilities the Company\nincurs as a result of your breach of any provision of this Agreement. You further acknowledge that your general knowledge and skill are such that\nenforcement of Sections I, I and III of this Agreement by injunction will not prevent you from earning a livelihood.\n4. You acknowledge that if the Company determines, in its sole discretion, that you violated any covenant set forth in this Agreement\n(“Company Determination”), then the Restricted Period will be extended for a period of time equal to the period of time that you are in violation of\nthe Agreement, to the extent allowed by law. In addition, any portion of the FY 2009 Equity Grant that has not vested (with respect to restricted\nstock units or performance share units) or that you have not exercised (with respect to stock options, whether vested or unvested) on the Company\nDetermination date will immediately be rescinded, and you will forfeit any rights you have with respect to the unvested or unexercised portion of the\nFY 2009 Equity Grant. Also, you hereby agree and promise to deliver to the Company, immediately upon the Company Determination date, shares\n(or, in the discretion of the Company, cash) equal in value to the amount of any profit you realized upon the exercise of any stock options or the\nvesting of any restricted stock units or performance share units (all of which being awarded as part of the FY 2009 Equity Grant) that occurred\nduring the period that begins 12 months immediately prior to your termination of employment and ends on the Company Determination date.\nIV. GENERAL PROVISIONS\nA. If you contend that any restriction on activities imposed under Sections I, II. or IIL. of this Agreement is not enforceable, does not apply to\nan activity in which you intend to engage, or should not be enforced against you, you will notify the Vice President of Human Resources for your\nGlobal Business Unit (or if you work in a corporate function, the Human Resources Vice President for Corporate) in writing at least 14 days before\nengaging in such activity so that the Company and you may address and resolve any such issues.\nB. This Agreement, along with any agreement that you have previously signed regarding non-disclosure of information and/or inventions,\ncontains the entire understanding between the parties with respect to the subject matter within each agreement. This Agreement may not be modified\nor amended except by an agreement in writing signed by both parties.\nC. The headings in this Agreement are included for convenience of reference, and in the event of any conflict between such headings and the\ntext of this Agreement, the text will control.\nD. The invalidity or unenforceability of any provision of this Agreement as applied to a particular occurrence or circumstance or otherwise\nshall not affect the validity, enforceability, and applicability of any other provision of this Agreement. Indeed, the Company and you ask any\nreviewing court to reform, rewrite, revise, edit or blue pencil (strike through the least amount of words, phrases, or sections) any provision in the\nAgreement determined to be unenforceable for any reason to make the Agreement enforceable.\nE. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, affiliated entities,\nassigns, heirs, and personal representatives; provided, however, that you may not assign any of your rights, title or interest in this Agreement.\nSpecifically, any respective successors, assigns, heirs, and personal representatives, parent, subsidiary or affiliated entity of the Company shall have\nthe right to the enforcement of the restrictive covenants contained herein.\nF. The Company’s failure to insist upon your strict compliance with any provision of this Agreement shall not be deemed a waiver of such\nprovision or of any other provision in this Agreement.\nPage 5 of 6\nG. You understand and agree that the Company may notify anyone employing you or evidencing an intent to employ you after your separation\nfrom employment for any reason as to the existence of the provisions of this Agreement. You also agree to (a) disclose this Agreement to any\nprospective employer prior to accepting employment during any Restrictive Period provided in this Agreement and (b) inform the Company at the\ntime you give notice of separation from employment, of the identity of your new employer and of the job title and responsibilities.\nH. The Company has its principal place of business in Massachusetts. The validity, performance, construction and effect of this Agreement\nshall be construed, enforced and governed in accordance with the laws of the Commonwealth of Massachusetts without regard to its conflict of laws\nprinciples. You irrevocably consent to personal jurisdiction in the state courts of Massachusetts and the U.S. District Court for the District of\nMassachusetts for any action arising out of this Agreement, regardless of where you reside or perform duties.\nI. This Agreement, or certain portions thereof, will not be enforced where applicable law, regulations or professional rules prohibit or limit\nenforceability. Nothing in this provision shall limit the enforceability of the Choice of Law, Jurisdiction and Venue provision in Subsection IV.H.\nJ. Nothing in this Agreement shall be deemed to confer on you any rights with respect to the duration of your employment with the Company.\nYOU UNDERSTAND AND AGREE THAT YOUR EMPLOYMENT RELATIONSHIP WITH THE COMPANY IS TERMINABLE AT WILL BY\nEITHER THE COMPANY OR YOU, WITH OR WITHOUT CAUSE AND WITH OR WITHOUT NOTICE, AND NOTHING IN THIS\nAGREEMENT ALTERS THAT AT-WILL RELATIONSHIP.\nK. You acknowledge and agree that all of your obligations herein shall survive and be a condition of any change in your employment status,\nwhether in the form of a promotion or a change in job title, compensation, responsibilities, or any other aspect of your employment. You further\nagree that your obligations hereunder will survive such change in your employment status without the need for you to re-execute this or a similar\nagreement or to otherwise re-affirm these obligations. Nonetheless, you may be asked to re-execute this or a similar agreement or to otherwise re-\naffirm these obligations as a condition of a promotion, and you agree to do so if asked.\nI ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT; UNDERSTAND MY OBLIGATIONS UNDER THIS\nAGREEMENT; SIGN IT VOLUNTARILY, AND INTEND TO BE LEGALLY BOUND BY THIS AGREEMENT.\nEMPLOYEE\nSignature Date\nPrinted Name\nCOMPANY\nSignature Date\nPrinted Name\nTitle\nPage 6 of 6	EX-10.4 2 ex104.htm FORM OF NON-COMPETITION, NON-SOLICITATION AND CONFIDENTIALITY\nAGREEMENT\nExhibit 10.4\nNON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT (hereinafter "Agreement"), dated and\neffective as of the date that you, sign this Agreement, describes various conditions of your employment, including the obligations owed\nto Tyco Healthcare Group LP d/b/a Covidien and any of its parents, subsidiaries, successors, assigns or affiliated entities (hereinafter "Company") by\nyou regarding competition with Company, the hiring of Company's employees, solicitation of Company's customers, and the maintenance of\nconfidential information important to Company's business.\nCONSIDERATION\nYou acknowledge that the Company is engaged in a highly competitive industry. You further acknowledge that, as part of your employment\nwith the Company, you will have access to and/or gain knowledge of trade secrets and "Confidential Information" (as defined below) that is vital to\nthe interests and success of the Company.\nIn exchange for this Agreement, the Company awarded to you [number] non-qualified stock options, [number] restricted stock units and\n[number] performance share units on December 1, 2008 (collectively, "FY 2009 Equity Grant") as consideration for your promises and contractual\nobligations as specified in this Agreement. You acknowledge that this FY 2009 Equity Grant constitutes adequate consideration even before it vests\nand regardless of the monetary value that results. As further consideration for this Agreement, and contemporaneous with its signing, the Company\nagrees to provide you with knowledge of its trade secrets and Confidential Information, with specialized, business-related education and training\nregarding the Company's methodologies and business strategies, which will enable you to perform your job with the Company, with supplies\nand\nmaterials necessary for you to perform your job with the Company, and with goodwill in customer and other business relationships. You\nacknowledge that all of these items are necessary and desirable for your personal success as an employee of the Company.\nYou acknowledge that you are not previously or otherwise already entitled to the consideration described herein in exchange for the\nagreements specified herein. In exchange for this consideration and as a condition of your employment or continued employment if you are an\nexisting employee, you agree to the following.\nI. CONFIDENTIAL INFORMATION\nA. Nondisclosure of Confidential Information. You agree that during your employment with the Company and at any time thereafter, you will\nnot\ndisclose to any other person or organization, or make or permit any use of, any of the Company's Confidential Information. Additionally, the\nCompany specifically reserves its rights under any applicable common or statutory law regarding trade secrets, and prohibits disclosure and/or use of\ninformation which meets the definition of trade secrets under these common or statutory laws.\nB. "Confidential Information" Defined. "Confidential Information" means information in whatever form, including but not limited to hard\ncopy, electronically stored or in your memory, related to the operation of the Company that is not generally known to or readily ascertainable by\nother persons who might seek or accept such information for their own business use. The following is a non-exclusive list of information that\nconstitutes Confidential Information meeting the above definition: (1) information of a technical nature such as inventions; methods; processes;\ntechniques; ideas; data; equipment; computer programs; developments; designs; and technical expertise and know-how developed by the Company;\n(2)\ninformation of a commercial nature such as trademarks; information about costs, purchasing, profits, prices, markets, sales, contracts, and selling\nstrategies; lists of customers and employees; proposals made to current or prospective clients or customers or other information contained in bids or\noffers to such clients or customers; the arrangements and/or agreement, pricing, layout, design and implementation of client and/or customer-specific\nprojects; the identity of vendors and vendor pricing information; financial, marketing and sales information; and (3) information of a strategic nature\nsuch as future developments or strategies pertaining to research, development, marketing and sales; and other similar matters concerning the\nCompany's planning.\nPage 1 of 6\nC. Return of Confidential Information. Upon your separation from employment for any reason, the termination of your access to any\nConfidential Information or upon request by the Company, you shall return to the Company all electronic and hard-copy documents and materials\nbelonging to the Company, whether kept at your business office, personal residence or otherwise, including all materials containing or relating to any\nConfidential Information in any written or tangible form that you may have in your possession or control and including electronic equipment. After\nreturning the materials described in the preceding sentence to the Company, you shall not retain any copies of any such materials.\nD. Confidential Information of Clients and Vendors. You acknowledge that it is essential to the Company's continued success to maintain\nthe\nconfidentiality of all client and vendor information and trade secrets. Therefore, you agree not to use or disclose any confidential client or vendor\ninformation except as may be needed to conduct the Company's business for the specific client or vendor. Upon your separation from employment\nwith the Company, you agree to deliver to an appropriate representative of the Company, without retaining any copies, notes or excerpts thereof, any\nand all documents and information that reference client or vendor information.\nE. Third-Party. Confidentiality. Agreements. You acknowledge that the Company from time to time may have agreements with other persons or\nentities that impose obligations or restrictions on the Company regarding inventions made during the course of work under such agreements, the\nconfidential nature of such work, or information about or owned by such person or entity. You agree to be bound by all such obligations and\nrestrictions as are made known to you and to take all action necessary to discharge the obligations of the Company under such agreements.\nII. INVENTIONS\nA. You shall promptly disclose to the Company all Inventions (as defined in Subsection II.B), which are made or conceived by you, either\nalone or with others, during the term of your employment with the Company, whether or not during working hours. Such Inventions directly or\nindirectly relate to matters within the scope of your duties or field of responsibility during your employment with the Company, or are based on your\nknowledge\nof\nthe\nactual\nor\nanticipated\nbusiness\nor\ninterests\nof\nthe\nCompany,\nor\nare\naided\nby\nthe\nuse\nof\ntime,\nmaterials,\nfacilities,\nor\ninformation\nof\nthe Company. You will not assert any rights under or to any Inventions as having been made or acquired by you prior to being employed by the\nCompany unless such Inventions have been identified to the Company in writing on a document signed by you at the time of hire. In addition, in\norder\nto avoid any dispute as to the date on which Inventions were made or conceived by you, they shall be deemed to have been made or conceived\nduring your employment with the Company if you take affirmative steps to have them reduced to practice either during the term of your employment\nor within one year after separation from employment.\nB. Herein, "Invention" means, whether or not patentable or copyrightable, the conception, discovery or reduction to practice of any new idea,\ntechnology, device, method, design, trade secret, composition of matter or any improvement thereto, including but not limited to any new articles\nof\nmanufacture or any improvement to existing articles of manufacture, any new apparatus or processes/methods for making or using a composition of\nmatter or article of manufacture, any computer software or any designs relating thereto, which relate to the Company's actual or anticipated business\nor research activities or are suggested by or which result directly or indirectly from use of the Company's information, time, materials, or facilities.\nC. You agree that all Inventions that are, or are deemed to be, made or conceived by you during employment with the Company shall, to the\nextent permitted by law, be the exclusive property of the Company, and you hereby assign to the Company your entire worldwide right, title, and\ninterest\nin\nand\nto\nany and all such Inventions. Whenever requested to do so by the Company, you shall execute any applications, assignments,\nor\nother instruments which the Company may consider necessary or advisable to apply for and obtain letters patent or copyrights in the United States or\nin any foreign country, or to otherwise record or protect the\nPage 2 of 6\nCompany's interest in such Inventions. In the event that you refuse to sign such an application, assignment, or other instrument, or, whether because\nof your physical or mental incapacity or for any other reason whatsoever, the Company is otherwise unable, after reasonable effort, to secure your\nsignature on any such application, assignment, or other instrument, you hereby irrevocably appoint the Company and its duly authorized officers and\nagents as your agent and attorney-in-fact to act for and in your behalf and stead to execute and file any such applications, assignments, and\ninstruments and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent, copyrights, and other analogous\nprotections with the same legal force and effect as if executed by you. The obligations of this Subsection shall continue perpetually beyond the\nperiod of your employment with the Company and are not modified by any incentive payments made for an Invention or otherwise subject to any\nprovisions of a Company patent incentive award policy as may change from time to time.\nIII. RESTRICTIVE COVENANTS\nFor the good and valuable consideration recited herein, the receipt and sufficiency of which is hereby acknowledged, and in order to protect\nthe Company's legitimate business interests, you agree as follows:\nA. Non-Competition:\n1. During your employment with the Company and for a period of twelve (12) months after your separation from employment for any\nreason (the "Restricted Period"), you will not, directly or indirectly, own, manage, operate, control, be employed by or otherwise provide services\n(whether as an employee consultant, independent contractor or otherwise, and whether or not for compensation) to any person, firm, corporation or\nother entity, in whatever form, engaged in any Competing Business. For purposes of this Agreement "Competing Business" is any entity (including\nany of its subsidiaries or affiliates) that produces a product or performs a service that is the same as or similar to, may be substituted for, or is\nintended to be used for any of the same purposes as a product or service produced, performed or under development by the Company. However,\nnotwithstanding any provision in this Subsection III.A, you may work for a Competing Business whose business is diversified, provided your work\nfor the Competing Business does not involve selling, managing, overseeing, developing, creating, promoting, servicing, involvement in the finance\nand/or accounting of, or other responsibility for any product, process, service or technology that resembles or competes with the those of the\nCompany on which you have worked or gained Confidential Information during the last 24 months of your employment ("Restricted Product or\nService"). Prior to accepting such employment, you and the Competing Business must provide the Company with written assurances satisfactory to\nthe Company that you will not render services directly or indirectly, for the 12-month Restricted Period, in connection with any Restricted Product\nor\nService and that any necessary safeguards or procedures have been put in place to ensure that this does not happen. Nothing in this Agreement shall\nprevent you from owning not more than one percent of the total shares of all classes of stock outstanding of any publicly held entity engaged in a\nCompeting Business.\n2. This restriction applies in the United States and also applies in any foreign country or foreign territory in which the services you will\nprovide could enhance the use or marketability of a Restricted Product or Service, use the Company's goodwill, or otherwise interfere with any of\nthe Company's protectable interests. Notwithstanding any other provision of this Subsection III.A, if at the time of separation from employment,\nyour primary area of responsibility involves sale of products within a certain geographic area, then the restrictions set forth in this Subsection III.A\nshall include and be limited to: (a) the geographic area that, directly or indirectly, was covered by either you or by employees, distributors, agents or\nrepresentatives who reported to you at any time during the 24-month period preceding your separation from employment; and/or (b) any geographic\narea in which you provided services, whether directly or indirectly, at any time during such 24-month period preceding separation from employment.\n3. If despite diligent and aggressive effort, after separation from employment for any reason you are unable to obtain employment\nconsistent with your education or training solely because of the provisions of this Subsection III.A, then such prohibition shall bind you only if and\nas long as the Company pays\nPage 3 of 6\nyou a sum equal to your monthly base salary in effect on your employment termination date for each month of such unemployment during the\n12-\nmonth Restricted Period. You will be eligible to receive this pay only if the Company determines, in its sole discretion, that you have provided\ninformation to the Company substantiating your efforts, the fact that your inability to find employment is due exclusively to the provisions of this\nSubsection III.A, and any other information that the Company deems relevant. For purposes of this provision "base salary" excludes bonuses, stock\noptions, restricted stock/share units, performance share units, commissions, incentive pay or other similar compensation or benefits and is subject to\nregular deductions for income taxes, Social Security and Medicare taxes and other deductions required by law. For each month of unemployment\nin\nwhich you receive payment under this provision, you must provide evidence that you have diligently and aggressively sought employment, and\nfailure to do so or to accept any reasonable offer, as determined in the sole discretion of the Company, will result in discontinuation of payments.\nPayments under this provision will be reduced by any other amounts that you receive during this period (including but not limited to unemployment\ncompensation, severance, and income earned as an employee, consultant or contractor from any employer or organization), and failure to disclose\nsuch amounts shall result in the discontinuation of payments and the Company shall have the right to recover prior payments made to you pursuant\nto Subsection III.A. The Company retains the sole right and discretion to determine whether you have engaged in reasonable efforts to secure\na\nposition that is not in violation of Subsection III.A, and whether the failure to find a position is due to the restrictions in that Subsection. In addition,\nyou will not be eligible for payment under this provision if you have (a) breached your duty of loyalty to the Company, (b) breached any provision\nof\nthis Agreement, (c) breached any other agreement with the Company, including a breach of any Company rule or policy, (d) been terminated for\nCause (as hereinafter defined or as defined in any applicable Company plan or agreement), or (e) otherwise acted in bad faith or contrary to law. For\npurposes of this provision, "Cause" means any act of gross negligence; any act of misconduct; any fraudulent act or misrepresentation;\nviolation\nof\napplicable law; any act involving dishonesty or moral turpitude; and/or refusal to comply with any of the Company's reasonable directions,\nprocedures or policies.\nB. Non-Solicitation of Customers. During your employment and for a period of twelve (12) months after your separation from employment for\nany reason from the Company (the "Restricted Period"), you will not solicit, induce, attempt to induce, or provide any services to any current\nCompany Customer (defined as any Customer of the Company with whom you had dealings and/or for whom you performed services during the last\ntwenty-four (24) months of your employment with Company) to do business with you on your own behalf or on behalf of any Competing Business.\nC. Non-Solicitation of Employees. During the duration of your employment and for a period of twelve (12) months after your separation from\nemployment for any reason from the Company (the "Restricted Period"), you will not solicit, interfere with, encourage or endeavor to cause any\nother employee or independent contractor of the Company to leave his/her employment (or independent contractor assignment) with the Company.\nD. Acknowledgements:\n1. You acknowledge that the Company's legitimate business interests include but are not limited to protecting trade secrets and secret,\nproprietary or confidential information (including but not limited to trade secrets as defined by applicable statutes and Confidential Information as\ndefined in Section I of this Agreement), knowledge and data; protecting customer lists; protecting customer relationships; protecting goodwill; and\nprotecting time and expense of training employees. You agree that each restriction in this Agreement is reasonable as to the time, territory, and\nline\nof business, and is reasonably necessary to protect the Company's legitimate business interests.\n2. You acknowledge that Covidien is a large global healthcare company which researches, develops and supplies a large variety of\nhealthcare products and services including but not limited to medical devices, medical supplies, imaging solutions and pharmaceuticals all over the\nworld. As such, your position gives you access to highly confidential and proprietary global business related company strategies and information,\nand you acknowledge that global geographic restrictions are reasonable.\nPage 4 of 6\n3. You acknowledge that your breach of any obligation under this Agreement will constitute immediate and irreparable damage to the\nCompany, which cannot be fully and adequately compensated in money damages and which will warrant preliminary and other injunctive relief, an\norder for specific performance, and other equitable relief. Further, you understand other action may be taken and remedies enforced against you,\nincluding but not limited to money damages and forfeiture of the FY 2009 Equity Grant which you received as consideration for this Agreement.\nYou will indemnify and hold the Company harmless from all costs (including all reasonable attorneys fees), damages and liabilities the Company\nincurs as a result of your breach of any provision of this Agreement. You further acknowledge that your general knowledge and skill are such that\nenforcement of Sections I, II and III of this Agreement by injunction will not prevent you from earning a livelihood.\n4. You acknowledge that if the Company determines, in its sole discretion, that you violated any covenant set forth in this Agreement\n("Company Determination"), then the Restricted Period will be extended for a period of time equal to the period of time that you are in violation of\nthe Agreement, to the extent allowed by law. In addition, any portion of the FY 2009 Equity Grant that has not vested (with respect to restricted\nstock units or performance share units) or that you have not exercised (with respect to stock options, whether vested or unvested) on the Company\nDetermination date will immediately be rescinded, and you will forfeit any rights you have with respect to the unvested or unexercised portion of the\nFY 2009 Equity Grant. Also, you hereby agree and promise to deliver to the Company, immediately upon the Company Determination date, shares\n(or, in the discretion of the Company, cash) equal in value to the amount of any profit you realized upon the exercise of any stock options or the\nvesting of any restricted stock units or performance share units (all of which being awarded as part of the FY 2009 Equity Grant) that occurred\nduring the period that begins 12 months immediately prior to your termination of employment and ends on the Company Determination date.\nIV. GENERAL PROVISIONS\nA. If you contend that any restriction on activities imposed under Sections I, II. or III. of this Agreement is not enforceable, does not apply\nto\nan activity in which you intend to engage, or should not be enforced against you, you will notify the Vice President of Human Resources for your\nGlobal Business Unit (or if you work in a corporate function, the Human Resources Vice President for Corporate) in writing at least 14 days before\nengaging in such activity so that the Company and you may address and resolve any such issues.\nB. This Agreement, along with any agreement that you have previously signed regarding non-disclosure of information and/or inventions,\ncontains the entire understanding between the parties with respect to the subject matter within each agreement. This Agreement may not be modified\nor amended except by an agreement in writing signed by both parties.\nC. The headings in this Agreement are included for convenience of reference, and in the event of any conflict between such headings and the\ntext of this Agreement, the text will control.\nD. The invalidity or unenforceability of any provision of this Agreement as applied to a particular occurrence or circumstance or otherwise\nshall not affect the validity, enforceability, and applicability of any other provision of this Agreement. Indeed, the Company and you ask any\nreviewing court to reform, rewrite, revise, edit or blue pencil (strike through the least amount of words, phrases, or sections) any provision in the\nAgreement determined to be unenforceable for any reason to make the Agreement enforceable.\nE. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, affiliated entities,\nassigns, heirs, and personal representatives; provided, however, that you may not assign any of your rights, title or interest in this Agreement.\nSpecifically, any respective successors, assigns, heirs, and personal representatives, parent, subsidiary or affiliated entity of the Company shall have\nthe right to the enforcement of the restrictive covenants contained herein.\nF. The Company's failure to insist upon your strict compliance with any provision of this Agreement shall not be deemed a waiver of such\nprovision or of any other provision in this Agreement.\nPage 5 of 6\nG. You understand and agree that the Company may notify anyone employing you or evidencing an intent to employ you after your separation\nfrom employment for any reason as to the existence of the provisions of this Agreement. You also agree to (a) disclose this Agreement to any\nprospective employer prior to accepting employment during any Restrictive Period provided in this Agreement and (b) inform the Company at the\ntime you give notice of separation from employment, of the identity of your new employer and of the job title and responsibilities.\nH. The Company has its principal place of business in Massachusetts. The validity, performance, construction and effect of this Agreement\nshall be construed, enforced and governed in accordance with the laws of the Commonwealth of Massachusetts without regard to its conflict of laws\nprinciples. You irrevocably consent to personal jurisdiction in the state courts of Massachusetts and the U.S. District Court for the District of\nMassachusetts for any action arising out of this Agreement, regardless of where you reside or perform duties.\nI. This Agreement, or certain portions thereof, will not be enforced where applicable law, regulations or professional rules prohibit or limit\nenforceability. Nothing in this provision shall limit the enforceability of the Choice of Law, Jurisdiction and Venue provision in Subsection IV.H.\nJ. Nothing in this Agreement shall be deemed to confer on you any rights with respect to the duration of your employment with the Company.\nYOU UNDERSTAND AND AGREE THAT YOUR EMPLOYMENT RELATIONSHIP WITH THE COMPANY IS TERMINABLE AT WILL BY\nEITHER THE COMPANY OR YOU, WITH OR WITHOUT CAUSE AND WITH OR WITHOUT NOTICE, AND NOTHING IN THIS\nAGREEMENT ALTERS THAT AT-WILL RELATIONSHIP.\nK. You acknowledge and agree that all of your obligations herein shall survive and be a condition of any change in your employment status,\nwhether in the form of a promotion or a change in job title, compensation, responsibilities, or any other aspect of your employment. You further\nagree that your obligations hereunder will survive such change in your employment status without the need for you to re-execute this or a similar\nagreement or to otherwise re-affirm these obligations. Nonetheless, you may be asked to re-execute this or a similar agreement or to otherwise re-\naffirm these obligations as a condition of a promotion, and you agree to do so if asked.\nI ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT; UNDERSTAND MY OBLIGATIONS UNDER THIS\nAGREEMENT; SIGN IT VOLUNTARILY, AND INTEND TO BE LEGALLY BOUND BY THIS AGREEMENT.\nEMPLOYEE\nSignature\nDate\nPrinted Name\nCOMPANY\nSignature\nDate\nPrinted Name\nTitle\nPage 6 of 6	EX-10.4 2 dex104.htm FORM OF NON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY\nAGREEMENT\nExhibit 10.4\nNON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION, AND CONFIDENTIALITY AGREEMENT (hereinafter “Agreement”), dated and\neffective as of the date that you,\n, sign this Agreement, describes various conditions of your employment, including the obligations owed\nto Tyco Healthcare Group LP d/b/a Covidien and any of its parents, subsidiaries, successors, assigns or affiliated entities (hereinafter “Company”) by\nyou regarding competition with Company, the hiring of Company’s employees, solicitation of Company’s customers, and the maintenance of\nconfidential information important to Company’s business.\nCONSIDERATION\nYou acknowledge that the Company is engaged in a highly competitive industry. You further acknowledge that, as part of your employment\nwith the Company, you will have access to and/or gain knowledge of trade secrets and “Confidential Information” (as defined below) that is vital to\nthe interests and success of the Company.\nIn exchange for this Agreement, the Company awarded to you [number] non-qualified stock options, [number] restricted stock units and\n[number] performance share units on December 1, 2008 (collectively, “FY 2009 Equity Grant”) as consideration for your promises and contractual\nobligations as specified in this Agreement. You acknowledge that this FY 2009 Equity Grant constitutes adequate consideration even before it vests\nand regardless of the monetary value that results. As further consideration for this Agreement, and contemporaneous with its signing, the Company\nagrees to provide you with knowledge of its trade secrets and Confidential Information, with specialized, business-related education and training\nregarding the Company’s methodologies and business strategies, which will enable you to perform your job with the Company, with supplies and\nmaterials necessary for you to perform your job with the Company, and with goodwill in customer and other business relationships. You\nacknowledge that all of these items are necessary and desirable for your personal success as an employee of the Company.\nYou acknowledge that you are not previously or otherwise already entitled to the consideration described herein in exchange for the\nagreements specified herein. In exchange for this consideration and as a condition of your employment or continued employment if you are an\nexisting employee, you agree to the following.\nI. CONFIDENTIAL INFORMATION\nA. Nondisclosure of Confidential Information. You agree that during your employment with the Company and at any time thereafter, you will\nnot disclose to any other person or organization, or make or permit any use of, any of the Company’s Confidential Information. Additionally, the\nCompany specifically reserves its rights under any applicable common or statutory law regarding trade secrets, and prohibits disclosure and/or use of\ninformation which meets the definition of trade secrets under these common or statutory laws.\nB. “Confidential Information” Defined. “Confidential Information” means information in whatever form, including but not limited to hard\ncopy, electronically stored or in your memory, related to the operation of the Company that is not generally known to or readily ascertainable by\nother persons who might seek or accept such information for their own business use. The following is a non-exclusive list of information that\nconstitutes Confidential Information meeting the above definition: (1) information of a technical nature such as inventions; methods; processes;\ntechniques; ideas; data; equipment; computer programs; developments; designs; and technical expertise and know-how developed by the Company;\n(2) information of a commercial nature such as trademarks; information about costs, purchasing, profits, prices, markets, sales, contracts, and selling\nstrategies; lists of customers and employees; proposals made to current or prospective clients or customers or other information contained in bids or\noffers to such clients or customers; the arrangements and/or agreement, pricing, layout, design and implementation of client and/or customer-specific\nprojects; the identity of vendors and vendor pricing information; financial, marketing and sales information; and (3) information of a strategic nature\nsuch as future developments or strategies pertaining to research, development, marketing and sales; and other similar matters concerning the\nCompany’s planning.\nPage1of6\nC. Return of Confidential Information. Upon your separation from employment for any reason, the termination of your access to any\nConfidential Information or upon request by the Company, you shall return to the Company all electronic and hard-copy documents and materials\nbelonging to the Company, whether kept at your business office, personal residence or otherwise, including all materials containing or relating to any\nConfidential Information in any written or tangible form that you may have in your possession or control and including electronic equipment. After\nreturning the materials described in the preceding sentence to the Company, you shall not retain any copies of any such materials.\nD. Confidential Information of Clients and Vendors. You acknowledge that it is essential to the Company’s continued success to maintain the\nconfidentiality of all client and vendor information and trade secrets. Therefore, you agree not to use or disclose any confidential client or vendor\ninformation except as may be needed to conduct the Company’s business for the specific client or vendor. Upon your separation from employment\nwith the Company, you agree to deliver to an appropriate representative of the Company, without retaining any copies, notes or excerpts thereof, any\nand all documents and information that reference client or vendor information.\nE. Third-Party Confidentiality Agreements. You acknowledge that the Company from time to time may have agreements with other persons or\nentities that impose obligations or restrictions on the Company regarding inventions made during the course of work under such agreements, the\nconfidential nature of such work, or information about or owned by such person or entity. You agree to be bound by all such obligations and\nrestrictions as are made known to you and to take all action necessary to discharge the obligations of the Company under such agreements.\nII. INVENTIONS\nA. You shall promptly disclose to the Company all Inventions (as defined in Subsection II.B), which are made or conceived by you, either\nalone or with others, during the term of your employment with the Company, whether or not during working hours. Such Inventions directly or\nindirectly relate to matters within the scope of your duties or field of responsibility during your employment with the Company, or are based on your\nknowledge of the actual or anticipated business or interests of the Company, or are aided by the use of time, materials, facilities, or information of\nthe Company. You will not assert any rights under or to any Inventions as having been made or acquired by you prior to being employed by the\nCompany unless such Inventions have been identified to the Company in writing on a document signed by you at the time of hire. In addition, in\norder to avoid any dispute as to the date on which Inventions were made or conceived by you, they shall be deemed to have been made or conceived\nduring your employment with the Company if you take affirmative steps to have them reduced to practice either during the term of your employment\nor within one year after separation from employment.\nB. Herein, “Invention” means, whether or not patentable or copyrightable, the conception, discovery or reduction to practice of any new idea,\ntechnology, device, method, design, trade secret, composition of matter or any improvement thereto, including but not limited to any new articles of\nmanufacture or any improvement to existing articles of manufacture, any new apparatus or processes/methods for making or using a composition of\nmatter or article of manufacture, any computer software or any designs relating thereto, which relate to the Company’s actual or anticipated business\nor research activities or are suggested by or which result directly or indirectly from use of the Company’s information, time, materials, or facilities.\nC. You agree that all Inventions that are, or are deemed to be, made or conceived by you during employment with the Company shall, to the\nextent permitted by law, be the exclusive property of the Company, and you hereby assign to the Company your entire worldwide right, title, and\ninterest in and to any and all such Inventions. Whenever requested to do so by the Company, you shall execute any applications, assignments, or\nother instruments which the Company may consider necessary or advisable to apply for and obtain letters patent or copyrights in the United States or\nin any foreign country, or to otherwise record or protect the\nPage2of6\nCompany’s interest in such Inventions. In the event that you refuse to sign such an application, assignment, or other instrument, or, whether because\nof your physical or mental incapacity or for any other reason whatsoever, the Company is otherwise unable, after reasonable effort, to secure your\nsignature on any such application, assignment, or other instrument, you hereby irrevocably appoint the Company and its duly authorized officers and\nagents as your agent and attorney-in-fact to act for and in your behalf and stead to execute and file any such applications, assignments, and\ninstruments and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent, copyrights, and other analogous\nprotections with the same legal force and effect as if executed by you. The obligations of this Subsection shall continue perpetually beyond the\nperiod of your employment with the Company and are not modified by any incentive payments made for an Invention or otherwise subject to any\nprovisions of a Company patent incentive award policy as may change from time to time.\nIII. RESTRICTIVE COVENANTS\nFor the good and valuable consideration recited herein, the receipt and sufficiency of which is hereby acknowledged, and in order to protect\nthe Company’s legitimate business interests, you agree as follows:\nA. Non-Competition:\n1. During your employment with the Company and for a period of twelve (12) months after your separation from employment for any\nreason (the “Restricted Period”), you will not, directly or indirectly, own, manage, operate, control, be employed by or otherwise provide services\n(whether as an employee consultant, independent contractor or otherwise, and whether or not for compensation) to any person, firm, corporation or\nother entity, in whatever form, engaged in any Competing Business. For purposes of this Agreement “Competing Business” is any entity (including\nany of its subsidiaries or affiliates) that produces a product or performs a service that is the same as or similar to, may be substituted for, or is\nintended to be used for any of the same purposes as a product or service produced, performed or under development by the Company. However,\nnotwithstanding any provision in this Subsection III.A, you may work for a Competing Business whose business is diversified, provided your work\nfor the Competing Business does not involve selling, managing, overseeing, developing, creating, promoting, servicing, involvement in the finance\nand/or accounting of, or other responsibility for any product, process, service or technology that resembles or competes with the those of the\nCompany on which you have worked or gained Confidential Information during the last 24 months of your employment (“Restricted Product or\nService”). Prior to accepting such employment, you and the Competing Business must provide the Company with written assurances satisfactory to\nthe Company that you will not render services directly or indirectly, for the 12-month Restricted Period, in connection with any Restricted Product or\nService and that any necessary safeguards or procedures have been put in place to ensure that this does not happen. Nothing in this Agreement shall\nprevent you from owning not more than one percent of the total shares of all classes of stock outstanding of any publicly held entity engaged in a\nCompeting Business.\n2. This restriction applies in the United States and also applies in any foreign country or foreign territory in which the services you will\nprovide could enhance the use or marketability of a Restricted Product or Service, use the Company’s goodwill, or otherwise interfere with any of\nthe Company’s protectable interests. Notwithstanding any other provision of this Subsection III.A, if at the time of separation from employment,\nyour primary area of responsibility involves sale of products within a certain geographic area, then the restrictions set forth in this Subsection III.A\nshall include and be limited to: (a) the geographic area that, directly or indirectly, was covered by either you or by employees, distributors, agents or\nrepresentatives who reported to you at any time during the 24-month period preceding your separation from employment; and/or (b) any geographic\narea in which you provided services, whether directly or indirectly, at any time during such 24-month period preceding separation from employment.\n3. If despite diligent and aggressive effort, after separation from employment for any reason you are unable to obtain employment\nconsistent with your education or training solely because of the provisions of this Subsection III.A, then such prohibition shall bind you only if and\nas long as the Company pays\nPage3of6\nyou a sum equal to your monthly base salary in effect on your employment termination date for each month of such unemployment during the 12-\nmonth Restricted Period. You will be eligible to receive this pay only if the Company determines, in its sole discretion, that you have provided\ninformation to the Company substantiating your efforts, the fact that your inability to find employment is due exclusively to the provisions of this\nSubsection III.A, and any other information that the Company deems relevant. For purposes of this provision “base salary” excludes bonuses, stock\noptions, restricted stock/share units, performance share units, commissions, incentive pay or other similar compensation or benefits and is subject to\nregular deductions for income taxes, Social Security and Medicare taxes and other deductions required by law. For each month of unemployment in\nwhich you receive payment under this provision, you must provide evidence that you have diligently and aggressively sought employment, and\nfailure to do so or to accept any reasonable offer, as determined in the sole discretion of the Company, will result in discontinuation of payments.\nPayments under this provision will be reduced by any other amounts that you receive during this period (including but not limited to unemployment\ncompensation, severance, and income earned as an employee, consultant or contractor from any employer or organization), and failure to disclose\nsuch amounts shall result in the discontinuation of payments and the Company shall have the right to recover prior payments made to you pursuant\nto Subsection III.A. The Company retains the sole right and discretion to determine whether you have engaged in reasonable efforts to secure a\nposition that is not in violation of Subsection III.A, and whether the failure to find a position is due to the restrictions in that Subsection. In addition,\nyou will not be eligible for payment under this provision if you have (a) breached your duty of loyalty to the Company, (b) breached any provision of\nthis Agreement, (c) breached any other agreement with the Company, including a breach of any Company rule or policy, (d) been terminated for\nCause (as hereinafter defined or as defined in any applicable Company plan or agreement), or (e) otherwise acted in bad faith or contrary to law. For\npurposes of this provision, “Cause” means any act of gross negligence; any act of misconduct; any fraudulent act or misrepresentation; violation of\napplicable law; any act involving dishonesty or moral turpitude; and/or refusal to comply with any of the Company’s reasonable directions,\nprocedures or policies.\nB. Non-Solicitation of Customers. During your employment and for a period of twelve (12) months after your separation from employment for\nany reason from the Company (the “Restricted Period”), you will not solicit, induce, attempt to induce, or provide any services to any current\nCompany Customer (defined as any Customer of the Company with whom you had dealings and/or for whom you performed services during the last\ntwenty-four (24) months of your employment with Company) to do business with you on your own behalf or on behalf of any Competing Business.\nC. Non-Solicitation of Employees. During the duration of your employment and for a period of twelve (12) months after your separation from\nemployment for any reason from the Company (the “Restricted Period”), you will not solicit, interfere with, encourage or endeavor to cause any\nother employee or independent contractor of the Company to leave his/her employment (or independent contractor assignment) with the Company.\nD. Acknowledgements:\n1. You acknowledge that the Company’s legitimate business interests include but are not limited to protecting trade secrets and secret,\nproprietary or confidential information (including but not limited to trade secrets as defined by applicable statutes and Confidential Information as\ndefined in Section I of this Agreement), knowledge and data; protecting customer lists; protecting customer relationships; protecting goodwill; and\nprotecting time and expense of training employees. You agree that each restriction in this Agreement is reasonable as to the time, territory, and line\nof business, and is reasonably necessary to protect the Company’s legitimate business interests.\n2. You acknowledge that Covidien is a large global healthcare company which researches, develops and supplies a large variety of\nhealthcare products and services including but not limited to medical devices, medical supplies, imaging solutions and pharmaceuticals all over the\nworld. As such, your position gives you access to highly confidential and proprietary global business related company strategies and information,\nand you acknowledge that global geographic restrictions are reasonable.\nPage4of6\n3. You acknowledge that your breach of any obligation under this Agreement will constitute immediate and irreparable damage to the\nCompany, which cannot be fully and adequately compensated in money damages and which will warrant preliminary and other injunctive relief, an\norder for specific performance, and other equitable relief. Further, you understand other action may be taken and remedies enforced against you,\nincluding but not limited to money damages and forfeiture of the FY 2009 Equity Grant which you received as consideration for this Agreement.\nYou will indemnify and hold the Company harmless from all costs (including all reasonable attorneys fees), damages and liabilities the Company\nincurs as a result of your breach of any provision of this Agreement. You further acknowledge that your general knowledge and skill are such that\nenforcement of Sections I, II and III of this Agreement by injunction will not prevent you from earning a livelihood.\n4. You acknowledge that if the Company determines, in its sole discretion, that you violated any covenant set forth in this Agreement\n(“Company Determination”), then the Restricted Period will be extended for a period of time equal to the period of time that you are in violation of\nthe Agreement, to the extent allowed by law. In addition, any portion of the FY 2009 Equity Grant that has not vested (with respect to restricted\nstock units or performance share units) or that you have not exercised (with respect to stock options, whether vested or unvested) on the Company\nDetermination date will immediately be rescinded, and you will forfeit any rights you have with respect to the unvested or unexercised portion of the\nFY 2009 Equity Grant. Also, you hereby agree and promise to deliver to the Company, immediately upon the Company Determination date, shares\n(or, in the discretion of the Company, cash) equal in value to the amount of any profit you realized upon the exercise of any stock options or the\nvesting of any restricted stock units or performance share units (all of which being awarded as part of the FY 2009 Equity Grant) that occurred\nduring the period that begins 12 months immediately prior to your termination of employment and ends on the Company Determination date.\nIV. GENERAL PROVISIONS\nA. If you contend that any restriction on activities imposed under Sections I, II. or III. of this Agreement is not enforceable, does not apply to\nan activity in which you intend to engage, or should not be enforced against you, you will notify the Vice President of Human Resources for your\nGlobal Business Unit (or if you work in a corporate function, the Human Resources Vice President for Corporate) in writing at least 14 days before\nengaging in such activity so that the Company and you may address and resolve any such issues.\nB. This Agreement, along with any agreement that you have previously signed regarding non-disclosure of information and/or inventions,\ncontains the entire understanding between the parties with respect to the subject matter within each agreement. This Agreement may not be modified\nor amended except by an agreement in writing signed by both parties.\nC. The headings in this Agreement are included for convenience of reference, and in the event of any conflict between such headings and the\ntext of this Agreement, the text will control.\nD. The invalidity or unenforceability of any provision of this Agreement as applied to a particular occurrence or circumstance or otherwise\nshall not affect the validity, enforceability, and applicability of any other provision of this Agreement. Indeed, the Company and you ask any\nreviewing court to reform, rewrite, revise, edit or blue pencil (strike through the least amount of words, phrases, or sections) any provision in the\nAgreement determined to be unenforceable for any reason to make the Agreement enforceable.\nE. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, affiliated entities,\nassigns, heirs, and personal representatives; provided, however, that you may not assign any of your rights, title or interest in this Agreement.\nSpecifically, any respective successors, assigns, heirs, and personal representatives, parent, subsidiary or affiliated entity of the Company shall have\nthe right to the enforcement of the restrictive covenants contained herein.\nF. The Company’s failure to insist upon your strict compliance with any provision of this Agreement shall not be deemed a waiver of such\nprovision or of any other provision in this Agreement.\nPage5of6\nG. You understand and agree that the Company may notify anyone employing you or evidencing an intent to employ you after your separation\nfrom employment for any reason as to the existence of the provisions of this Agreement. You also agree to (a) disclose this Agreement to any\nprospective employer prior to accepting employment during any Restrictive Period provided in this Agreement and (b) inform the Company at the\ntime you give notice of separation from employment, of the identity of your new employer and of the job title and responsibilities.\nH. The Company has its principal place of business in Massachusetts. The validity, performance, construction and effect of this Agreement\nshall be construed, enforced and governed in accordance with the laws of the Commonwealth of Massachusetts without regard to its conflict of laws\nprinciples. You irrevocably consent to personal jurisdiction in the state courts of Massachusetts and the U.S . District Court for the District of\nMassachusetts for any action arising out of this Agreement, regardless of where you reside or perform duties.\nI. This Agreement, or certain portions thereof, will not be enforced where applicable law, regulations or professional rules prohibit or limit\nenforceability. Nothing in this provision shall limit the enforceability of the Choice of Law, Jurisdiction and Venue provision in Subsection IV.H .\nJ. Nothing in this Agreement shall be deemed to confer on you any rights with respect to the duration of your employment with the Company.\nYOU UNDERSTAND AND AGREE THAT YOUR EMPLOYMENT RELATIONSHIP WITH THE COMPANY IS TERMINABLE AT WILL BY\nEITHER THE COMPANY OR YOU, WITH OR WITHOUT CAUSE AND WITH OR WITHOUT NOTICE, AND NOTHING IN THIS\nAGREEMENT ALTERS THAT AT-WILL RELATIONSHIP.\nK. You acknowledge and agree that all of your obligations herein shall survive and be a condition of any change in your employment status,\nwhether in the form of a promotion or a change in job title, compensation, responsibilities, or any other aspect of your employment. You further\nagree that your obligations hereunder will survive such change in your employment status without the need for you to re-execute this or a similar\nagreement or to otherwise re-affirm these obligations. Nonetheless, you may be asked to re-execute this or a similar agreement or to otherwise re-\naffirm these obligations as a condition of a promotion, and you agree to do so if asked.\nI ACKNOWLEDGE THAT I HAVE CAREFULLY READ THIS AGREEMENT; UNDERSTAND MY OBLIGATIONS UNDER THIS\nAGREEMENT; SIGN IT VOLUNTARILY, AND INTEND TO BE LEGALLY BOUND BY THIS AGREEMENT.\nEMPLOYEE\nSignature\nDate\nPrinted Name\nCOMPANY\nSignature\nDate\nPrinted Name\nTitle\nPage6of6
+e33d3ca6885f31faa68b2ab766afc86b.pdf	effective_date jurisdiction party term	EX-10.1 2 dex101.htm FORM OF NON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION\nAGREEMENT\nExhibit 10.1\nNON-DISCLOSURE, NON-SOLICITATION\nAND NON-COMPETITION\nAGREEMENT\nThis Non-Disclosure, Non-Solicitation and Non-Competition Agreement (the “Agreement”) is between TXU Corp., a Texas corporation, and\n(“Employee”).\nTXU Corp. and its Affiliates (“TXU”) are beginning a project which will involve the first development of lignite and coal fired electric\ngeneration in Texas in approximately 30 years and the first of such developments since the deregulation of the Texas electric power market (the\n“Project”);\nIn connection with the Project, TXU will provide Employee with certain Confidential Information (as defined below), including specialized\nknowledge and insight regarding the manner and method in which TXU plans to develop such coal and lignite fueled generation and operate that\nportion of its business, and Employee will have access to and use such Confidential Information to assist TXU in connection with the Project;\nThe Confidential Information that Employee will have access to is a valuable, special, proprietary and unique asset used by TXU in its\nbusinesses and TXU has taken and will continue to take steps to protect the Confidential Information from unauthorized disclosure, which is of\ncritical importance and value to TXU and provides TXU with a competitive advantage in connection with the Project; and\nTXU would suffer irreparable harm if Employee were to use or enable others to use such Confidential Information in competition with TXU in\nTexas or other system control areas where there is or will be competition in the supply of electric power.\nTHEREFORE, for and in consideration of Employee’s access to and receipt of TXU’s Confidential Information and the opportunity to\nparticipate in the Project and the mutual covenants of this Agreement, the receipt and adequacy of which are acknowledged, TXU and Employee\nagree as follows:\n1. Definitions. For purposes of this Agreement, the following words shall have the following meanings:\n(a) “Affiliate” shall mean any entity that, directly or indirectly, controls, is controlled by or is under common control with TXU.\n(b) “Confidential Information” means information (i) disclosed to or known by the Employee as a consequence or through his/her work in\nconnection with the Project; (ii) not generally known outside TXU; and (iii) which relates to any aspect of TXU’s business and development in\nconnection with the Project. Confidential Information includes all confidential and/or propriety information and/or trade secrets of TXU that has\nbeen and/or will be developed or used for the Project, including, but not limited to, information regarding suppliers, consultants, customers,\n1\nemployees, contractors and the electric generation industry not generally known to the public; strategies, methods, books, records and documents;\ntechnical information concerning products, equipment, services and processes; procurement procedures, pricing and pricing techniques; information\nconcerning past, current and prospective customers, investors and business affiliates (such as contact name, service provided, pricing, type and\namount of services used, financial data and/or other such information); pricing strategies and price curves; positions; plans or strategies for\nexpansion or acquisitions; budgets; research; financial and sales data (including budgets, forecasts and historical financial data); trading\nmethodologies and terms; communications information; evaluations, opinions and interpretations of information and data; marketing and\nmerchandising techniques; electronic databases; models; specifications; computer programs; contracts; bids or proposals; technologies and methods;\ntraining methods and processes; organizational structure; personnel information; payments or rates paid to consultants or other service providers; and\nother such confidential or proprietary information. Confidential Information also includes matters that Employee conceives or develops, as well as\nmatters Employee learns from other employees of TXU.\n(c) “Work Product” means all ideas, discoveries, programs, systems, methods, interfaces, protocols, databases, creations, artwork, articles,\nprogramming, processes, designs, inventions or improvements relating to technological matters, whether or not capable of being protected by patent,\ncopyright, trade secret or other intellectual property right.\n2. Non-Disclosure, Return of Property and Ownership of Work Product.\n(a) Employee agrees not to divulge, use, furnish, disclose or make accessible, directly or indirectly, for his/her own benefit or the benefit of any\nother person or entity, any Confidential Information for any reason or purpose whatsoever, except to the extent that disclosure or use of such\nConfidential Information is necessary to fulfill his/her responsibilities as an employee of TXU in connection with the Project. Employee’s\nobligations under this Section 2 with respect to any specific Confidential Information shall cease only when that specific portion of the Confidential\nInformation becomes publicly known, other than as a result of disclosure by Employee, in its entirety and without combining portions of such\ninformation obtained separately. This Section 2 shall continue in full force and effect after termination of Employee’s employment for any reason.\n(b) All memoranda, notes, lists, records, drawings, specifications and related documents and other documents or papers (and all copies thereof)\nrelating to or containing Confidential Information, including such items stored in electronic form or by any other means, made or compiled by or on\nbehalf of Employee, or made available to Employee, shall be property of TXU. Employee shall deliver such items to TXU promptly upon the\ntermination of Employee’s employment with TXU or at any other time upon TXU’s request and Employee shall not retain any electronic copies of\nany Confidential Information.\n(c) Employee acknowledges and agrees that all Work Product conceived by the Employee while employed by TXU, whether or not during\nregular working hours, provided such Work Product is related in some manner to the business of TXU, shall be owned and belong exclusively to\nTXU and that Employee shall have no personal interest in or right to use such Work Product. Employee shall, unless TXU otherwise agrees in\nwriting, and without additional compensation: (i) disclose promptly to TXU any and all Work Product, and business opportunities related to the\npresent and/or contemplated business of TXU (“Business Opportunities”); (ii) assign to TXU and comply with all\n2\nreasonable instructions of TXU regarding assigning, upon request, the entire rights to all such Work Product and Business Opportunities; (iii) give an\naffidavit and live testimony (as may be necessary or desirable in the sole and absolute discretion of TXU) in support of his/her inventorship or\ncreation in any appropriate case; and (iv) whenever requested to do so by TXU, execute any and all applications, assignments or other instruments\nthat TXU shall deem necessary to obtain, maintain, protect or vest in TXU the entire right, title and interest in and to such Work Product and\nBusiness Opportunities. This provision shall not apply to Work Product for which no equipment, supplies, facility or Confidential Information of\nTXU was used and which was developed entirely on Employee’s own time and (i) does not relate to (a) the business of TXU; or (b) TXU’s actual or\ndemonstrably anticipated business or development, or (ii) does not result from any work performed by Employee for TXU.\n3. Non-Solicitation and Non-Competition.\n(a) In order to protect the Confidential Information and in order to enforce Employee’s agreement not to disclose Confidential Information,\nEmployee and TXU agree that:\n(i) during Employee’s employment with TXU, and for the shorter of three (3) years after the termination of such employment or the\nperiod for which Employee received severance pay under the TXU Severance Plan in effect at the time of termination but in no event less than six\n(6) months, Employee shall not directly or indirectly, either for his/her own benefit or the benefit of any other person or entity, contribute\nEmployee’s knowledge to or work with, in any capacity that would or is likely to involve use or disclosure of Confidential Information, any venture,\nbusiness, association, trust or other organization which in any way competes with TXU in connection with the development, construction or\noperation of electric power generation plants or related facilities, including air quality control systems, in plants fueled by a solid fossil fuel\nincluding petroleum coke, lignite and coal in Texas, PJM Power Pool or any other system control area in the United States in which there is\ncompetition among generators of electric power and energy.\n(ii) during the term of Employee’s employment with TXU, and for three (3) years after the termination of such employment, Employee\nshall not\n(A) directly or indirectly request or advise any present or future TXU customers to cancel any contracts, or otherwise curtail their\ndealings, with TXU;\n(B) directly or indirectly request or advise any present or future TXU service provider or financial resource to withdraw, curtail,\nor cancel the furnishing of such service or resource to TXU; and\n(C) directly or indirectly induce or attempt to influence any employee of TXU to terminate his or her employment; interfere with\nthe relationship between TXU and its employees; or, employ or otherwise engage as an employee, independent contractor or otherwise any\nemployee of TXU.\nNotwithstanding anything to the contrary contained in this Section 3(a), Employee may own, directly or indirectly, securities of any entity traded on\nany national securities exchange or listed on the National Association of Securities Dealers Automated Quotation System if Employee does not,\ndirectly or indirectly, individually own 1% or more of any class of equity securities, or securities convertible into or exercisable or exchangeable for\n1% or more of any class of equity securities, of such entity.\n3\n(b) In the event of a breach by Employee of any covenant set forth in this Section 3, the term of such covenant shall be extended by the period\nof duration of such breach.\n(c) Until the termination of the period during which Employee’s activities are limited by this Agreement, Employee will, within ten (10) days\nafter accepting any employment, consulting engagement, engagement as an independent contractor, partnership or other association, advise TXU of\nthe identity of the new employee, client, partner or other person with whom Employee has become associated. TXU may serve notice upon each\nsuch person that Employee is bound by this Agreement and furnish each such person with a copy of this Agreement.\n(d) Employee and TXU agree that the non-competition provisions set forth in this Section 3 are ancillary to this Agreement, which is an\nenforceable agreement. Employee agrees that any association by Employee with a competitor of TXU during the Applicable Period may lead to\nEmployee’s unauthorized use of the Confidential Information, even if such use was unintentional. Because it would be impossible, as a practical\nmatter, to monitor, restrain or police Employee’s use of such Confidential Information other than through Employee’s covenants contained in this\nSection 3, Employee acknowledges that such restrictions are the narrowest method to protect TXU’s interests, and the narrowest method of enforcing\nconsideration for his/her receipt of Confidential Information.\n4. Notices. Any notices shall be in writing and shall be deemed given (a) when personally delivered, (b) when confirmed if delivered by\nfacsimile or similar device, or (c) when sent by certified mail, return receipt requested, addressed to the other party at the address provided below\nits/his/her signature to this Agreement, or at such other address as may be specified through these notice procedures.\n5. Assignment; Parties Bound. TXU reserves the right to assign all of its rights, powers and privileges under this Agreement, including,\nwithout limitation, the right to enforce all of the terms of this Agreement, to successors or between Affiliates of TXU or any person who acquires a\nmajority of the outstanding stock or all or substantially all of the assets of TXU. Employee shall not assign or otherwise delegate his obligations or\nduties under this Agreement to any other person. Any assignment or delegation in violation of this Agreement shall be null and void. Subject to the\nforegoing, this Agreement shall be binding upon the parties hereto and shall inure to the benefit of the parties hereto and their respective heirs,\nexecutors, administrators, legal representatives, successors, and permitted assigns.\n6. Governing Law. THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH LAWS OF THE\nSTATE OF TEXAS.\n7. Non-Waiver of Breach. A waiver of a breach or default by another must be in writing and shall not be deemed a waiver of a default by a\nthird party or any subsequent default or breach of the same or any other provision of this Agreement.\n8. Severability; Reformation. If any provision of this Agreement, as applied to any party or to any circumstances, is held to be invalid or\nunenforceable, such holding will not affect any\n4\nother provision of this Agreement, the application of such provision to any other party or in any other circumstances or the validity or enforceability\nof this Agreement. If any such provision (including the limitations contained in Section 3 as to time, geographical area, and scope of activity to be\nrestrained) is so held to be unenforceable, the parties agree that the court or authority making such determination shall reform this Agreement\n(including by reducing the limitations contained in Section 3 as to time, geographical area and scope of activity to be restrained to the extent\nnecessary to cause such limitations to be reasonable and not otherwise impose a restraint that is greater than necessary to protect the goodwill and\nConfidential Information of TXU) so as to make such provision enforceable as reformed. In the event that an applicable court or authority would not\nhave the legal authority to take the actions described in the preceding sentence, the parties agree to negotiate in good faith to agree on a modified\nprovision that would, in so far as possible, reflect the original intent of this Agreement without violating applicable law.\n9. Remedies. The Employee recognizes and acknowledges the competitive and confidential nature of the Confidential Information and that\nirreparable damage will result to TXU if it is disclosed to any third party or is used for any purpose, other than as permitted by this Agreement. TXU\nand Employee further agree that money damages would not be a sufficient remedy for any breach of this Agreement by Employee and that such\ndamages would be difficult if not impossible to quantify. Accordingly, Employee agrees that TXU shall be entitled to an injunction or injunctions\nwithout the posting of any bond to prevent breaches or threatened breaches of this Agreement and/or to specific performance of this Agreement.\nSuch remedies shall not be deemed to be the exclusive remedies for a breach by Employee of this Agreement but shall be in addition to all other\nremedies available at law or equity to TXU.\n10. No Right to Employment. Nothing in this Agreement shall be construed as giving Employee any right of employment or continued\nemployment with TXU.\n11. Employee Acknowledgement. Employee acknowledges that (i) TXU is engaged in the business of owning, managing and operating certain\nsolid fuel and gas electric generation assets, (ii) TXU’s business is highly competitive, (iii) Employee will be given access to Confidential\nInformation of TXU that is a valuable, special, proprietary and unique asset used by TXU in its respective businesses, (iv) he/she will confirm, by\nseparate acknowledgement, receipt of Confidential Information in conjunction with the Project and (v) protection of such Confidential Information\nagainst unauthorized disclosure and use is of critical importance to TXU.\n[Remainder of page intentionally left blank]\n5\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above.\nTXU CORP.\nBy:\nName:\nTitle:\nAddress: 1601 Bryan\nDallas, Texas 75201\nAttention: General Counsel\nFacsimile: (214) 812-6032\nBy:\n[Employee]\nAddress:\nDate:\nS-1	EX-10.1 2 dex101.htm FORM OF NON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION\nAGREEMENT\nExhibit 10.1\nNON-DISCLOSURE, NON-SOLICITATION\nAND NON-COMPETITION\nAGREEMENT\nThis Non-Disclosure, Non-Solicitation and Non-Competition Agreement (the “Agreement”) is between TXU Corp., a Texas corporation, and\n(“Employee”).\nTXU Corp. and its Affiliates (“TXU”) are beginning a project which will involve the first development of lignite and coal fired electric\ngeneration in Texas in approximately 30 years and the first of such developments since the deregulation of the Texas electric power market (the\n“Project”);\nIn connection with the Project, TXU will provide Employee with certain Confidential Information (as defined below), including specialized\nknowledge and insight regarding the manner and method in which TXU plans to develop such coal and lignite fueled generation and operate that\nportion of its business, and Employee will have access to and use such Confidential Information to assist TXU in connection with the Project;\nThe Confidential Information that Employee will have access to is a valuable, special, proprietary and unique asset used by TXU in its\nbusinesses and TXU has taken and will continue to take steps to protect the Confidential Information from unauthorized disclosure, which is of\ncritical importance and value to TXU and provides TXU with a competitive advantage in connection with the Project; and\nTXU would suffer irreparable harm if Employee were to use or enable others to use such Confidential Information in competition with TXU in\nTexas or other system control areas where there is or will be competition in the supply of electric power.\nTHEREFORE, for and in consideration of Employee’s access to and receipt of TXU’s Confidential Information and the opportunity to\nparticipate in the Project and the mutual covenants of this Agreement, the receipt and adequacy of which are acknowledged, TXU and Employee\nagree as follows:\n1. Definitions. For purposes of this Agreement, the following words shall have the following meanings:\n(a) “Affiliate” shall mean any entity that, directly or indirectly, controls, is controlled by or is under common control with TXU.\n(b) “Confidential Information” means information (i) disclosed to or known by the Employee as a consequence or through his/her work in\nconnection with the Project; (ii) not generally known outside TXU; and (iii) which relates to any aspect of TXU’s business and development in\nconnection with the Project. Confidential Information includes all confidential and/or propriety information and/or trade secrets of TXU that has\nbeen and/or will be developed or used for the Project, including, but not limited to, information regarding suppliers, consultants, customers,\n1\nemployees, contractors and the electric generation industry not generally known to the public; strategies, methods, books, records and documents;\ntechnical information concerning products, equipment, services and processes; procurement procedures, pricing and pricing techniques; information\nconcerning past, current and prospective customers, investors and business affiliates (such as contact name, service provided, pricing, type and\namount of services used, financial data and/or other such information); pricing strategies and price curves; positions; plans or strategies for\nexpansion or acquisitions; budgets; research; financial and sales data (including budgets, forecasts and historical financial data); trading\nmethodologies and terms; communications information; evaluations, opinions and interpretations of information and data; marketing and\nmerchandising techniques; electronic databases; models; specifications; computer programs; contracts; bids or proposals; technologies and methods;\ntraining methods and processes; organizational structure; personnel information; payments or rates paid to consultants or other service providers; and\nother such confidential or proprietary information. Confidential Information also includes matters that Employee conceives or develops, as well as\nmatters Employee learns from other employees of TXU.\n(c) “Work Product”’ means all ideas, discoveries, programs, systems, methods, interfaces, protocols, databases, creations, artwork, articles,\nprogramming, processes, designs, inventions or improvements relating to technological matters, whether or not capable of being protected by patent,\ncopyright, trade secret or other intellectual property right.\n2. Non-Disclosure, Return of Property and Ownership of Work Product.\n(a) Employee agrees not to divulge, use, furnish, disclose or make accessible, directly or indirectly, for his/her own benefit or the benefit of any\nother person or entity, any Confidential Information for any reason or purpose whatsoever, except to the extent that disclosure or use of such\nConfidential Information is necessary to fulfill his/her responsibilities as an employee of TXU in connection with the Project. Employee’s\nobligations under this Section 2 with respect to any specific Confidential Information shall cease only when that specific portion of the Confidential\nInformation becomes publicly known, other than as a result of disclosure by Employee, in its entirety and without combining portions of such\ninformation obtained separately. This Section 2 shall continue in full force and effect after termination of Employee’s employment for any reason.\n(b) All memoranda, notes, lists, records, drawings, specifications and related documents and other documents or papers (and all copies thereof)\nrelating to or containing Confidential Information, including such items stored in electronic form or by any other means, made or compiled by or on\nbehalf of Employee, or made available to Employee, shall be property of TXU. Employee shall deliver such items to TXU promptly upon the\ntermination of Employee’s employment with TXU or at any other time upon TXU’s request and Employee shall not retain any electronic copies of\nany Confidential Information.\n(c) Employee acknowledges and agrees that all Work Product conceived by the Employee while employed by TXU, whether or not during\nregular working hours, provided such Work Product is related in some manner to the business of TXU, shall be owned and belong exclusively to\nTXU and that Employee shall have no personal interest in or right to use such Work Product. Employee shall, unless TXU otherwise agrees in\nwriting, and without additional compensation: (i) disclose promptly to TXU any and all Work Product, and business opportunities related to the\npresent and/or contemplated business of TXU (“Business Opportunities™); (ii) assign to TXU and comply with all\n2\nreasonable instructions of TXU regarding assigning, upon request, the entire rights to all such Work Product and Business Opportunities; (iii) give an\naffidavit and live testimony (as may be necessary or desirable in the sole and absolute discretion of TXU) in support of his/her inventorship or\ncreation in any appropriate case; and (iv) whenever requested to do so by TXU, execute any and all applications, assignments or other instruments\nthat TXU shall deem necessary to obtain, maintain, protect or vest in TXU the entire right, title and interest in and to such Work Product and\nBusiness Opportunities. This provision shall not apply to Work Product for which no equipment, supplies, facility or Confidential Information of\nTXU was used and which was developed entirely on Employee’s own time and (i) does not relate to (a) the business of TXU; or (b) TXU’s actual or\ndemonstrably anticipated business or development, or (ii) does not result from any work performed by Employee for TXU.\n3. Non-Solicitation and Non-Competition.\n(a) In order to protect the Confidential Information and in order to enforce Employee’s agreement not to disclose Confidential Information,\nEmployee and TXU agree that:\n(i) during Employee’s employment with TXU, and for the shorter of three (3) years after the termination of such employment or the\nperiod for which Employee received severance pay under the TXU Severance Plan in effect at the time of termination but in no event less than six\n(6) months, Employee shall not directly or indirectly, either for his/her own benefit or the benefit of any other person or entity, contribute\nEmployee’s knowledge to or work with, in any capacity that would or is likely to involve use or disclosure of Confidential Information, any venture,\nbusiness, association, trust or other organization which in any way competes with TXU in connection with the development, construction or\noperation of electric power generation plants or related facilities, including air quality control systems, in plants fueled by a solid fossil fuel\nincluding petroleum coke, lignite and coal in Texas, PJM Power Pool or any other system control area in the United States in which there is\ncompetition among generators of electric power and energy.\n(ii) during the term of Employee’s employment with TXU, and for three (3) years after the termination of such employment, Employee\nshall not\n(A) directly or indirectly request or advise any present or future TXU customers to cancel any contracts, or otherwise curtail their\ndealings, with TXU;\n(B) directly or indirectly request or advise any present or future TXU service provider or financial resource to withdraw, curtail,\nor cancel the furnishing of such service or resource to TXU; and\n(C) directly or indirectly induce or attempt to influence any employee of TXU to terminate his or her employment; interfere with\nthe relationship between TXU and its employees; or, employ or otherwise engage as an employee, independent contractor or otherwise any\nemployee of TXU.\nNotwithstanding anything to the contrary contained in this Section 3(a), Employee may own, directly or indirectly, securities of any entity traded on\nany national securities exchange or listed on the National Association of Securities Dealers Automated Quotation System if Employee does not,\ndirectly or indirectly, individually own 1% or more of any class of equity securities, or securities convertible into or exercisable or exchangeable for\n1% or more of any class of equity securities, of such entity.\n(b) In the event of a breach by Employee of any covenant set forth in this Section 3, the term of such covenant shall be extended by the period\nof duration of such breach.\n(c) Until the termination of the period during which Employee’s activities are limited by this Agreement, Employee will, within ten (10) days\nafter accepting any employment, consulting engagement, engagement as an independent contractor, partnership or other association, advise TXU of\nthe identity of the new employee, client, partner or other person with whom Employee has become associated. TXU may serve notice upon each\nsuch person that Employee is bound by this Agreement and furnish each such person with a copy of this Agreement.\n(d) Employee and TXU agree that the non-competition provisions set forth in this Section 3 are ancillary to this Agreement, which is an\nenforceable agreement. Employee agrees that any association by Employee with a competitor of TXU during the Applicable Period may lead to\nEmployee’s unauthorized use of the Confidential Information, even if such use was unintentional. Because it would be impossible, as a practical\nmatter, to monitor, restrain or police Employee’s use of such Confidential Information other than through Employee’s covenants contained in this\nSection 3, Employee acknowledges that such restrictions are the narrowest method to protect TXU’s interests, and the narrowest method of enforcing\nconsideration for his/her receipt of Confidential Information.\n4. Notices. Any notices shall be in writing and shall be deemed given (a) when personally delivered, (b) when confirmed if delivered by\nfacsimile or similar device, or (c) when sent by certified mail, return receipt requested, addressed to the other party at the address provided below\nits/his/her signature to this Agreement, or at such other address as may be specified through these notice procedures.\n5. Assignment; Parties Bound. TXU reserves the right to assign all of its rights, powers and privileges under this Agreement, including,\nwithout limitation, the right to enforce all of the terms of this Agreement, to successors or between Affiliates of TXU or any person who acquires a\nmajority of the outstanding stock or all or substantially all of the assets of TXU. Employee shall not assign or otherwise delegate his obligations or\nduties under this Agreement to any other person. Any assignment or delegation in violation of this Agreement shall be null and void. Subject to the\nforegoing, this Agreement shall be binding upon the parties hereto and shall inure to the benefit of the parties hereto and their respective heirs,\nexecutors, administrators, legal representatives, successors, and permitted assigns.\n6. Governing Law. THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH LAWS OF THE\nSTATE OF TEXAS.\n7. Non-Waiver of Breach. A waiver of a breach or default by another must be in writing and shall not be deemed a waiver of a default by a\nthird party or any subsequent default or breach of the same or any other provision of this Agreement.\n8. Severability; Reformation. If any provision of this Agreement, as applied to any party or to any circumstances, is held to be invalid or\nunenforceable, such holding will not affect any\nother provision of this Agreement, the application of such provision to any other party or in any other circumstances or the validity or enforceability\nof this Agreement. If any such provision (including the limitations contained in Section 3 as to time, geographical area, and scope of activity to be\nrestrained) is so held to be unenforceable, the parties agree that the court or authority making such determination shall reform this Agreement\n(including by reducing the limitations contained in Section 3 as to time, geographical area and scope of activity to be restrained to the extent\nnecessary to cause such limitations to be reasonable and not otherwise impose a restraint that is greater than necessary to protect the goodwill and\nConfidential Information of TXU) so as to make such provision enforceable as reformed. In the event that an applicable court or authority would not\nhave the legal authority to take the actions described in the preceding sentence, the parties agree to negotiate in good faith to agree on a modified\nprovision that would, in so far as possible, reflect the original intent of this Agreement without violating applicable law.\n9. Remedies. The Employee recognizes and acknowledges the competitive and confidential nature of the Confidential Information and that\nirreparable damage will result to TXU if it is disclosed to any third party or is used for any purpose, other than as permitted by this Agreement. TXU\nand Employee further agree that money damages would not be a sufficient remedy for any breach of this Agreement by Employee and that such\ndamages would be difficult if not impossible to quantify. Accordingly, Employee agrees that TXU shall be entitled to an injunction or injunctions\nwithout the posting of any bond to prevent breaches or threatened breaches of this Agreement and/or to specific performance of this Agreement.\nSuch remedies shall not be deemed to be the exclusive remedies for a breach by Employee of this Agreement but shall be in addition to all other\nremedies available at law or equity to TXU.\n10. No Right to Employment. Nothing in this Agreement shall be construed as giving Employee any right of employment or continued\nemployment with TXU.\n11. Employee Acknowledgement. Employee acknowledges that (i) TXU is engaged in the business of owning, managing and operating certain\nsolid fuel and gas electric generation assets, (ii) TXU’s business is highly competitive, (iii) Employee will be given access to Confidential\nInformation of TXU that is a valuable, special, proprietary and unique asset used by TXU in its respective businesses, (iv) he/she will confirm, by\nseparate acknowledgement, receipt of Confidential Information in conjunction with the Project and (v) protection of such Confidential Information\nagainst unauthorized disclosure and use is of critical importance to TXU.\n[Remainder of page intentionally left blank]\n5\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above. S-1\nTXU CORP.\nBy:\nName:\nTitle:\nAddress: 1601 Bryan\nDallas, Texas 75201\nAttention: General Counsel\nFacsimile: (214) 812-6032\nBy:\n[Employee]\nAddress:\nDate:	EX-10.1 2 dex101.htm FORM OF NON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION\nAGREEMENT\nExhibit 10.1\nNON-DISCLOSURE, NON-SOLICITATION\nAND NON-COMPETITION\nAGREEMENT\nThis Non-Disclosure, Non-Solicitation and Non-Competition Agreement (the "Agreement") is between TXU Corp., a Texas corporation, and\n("Employee").\nTXU Corp. and its Affiliates ("TXU") are beginning a project which will involve the first development of lignite and coal fired electric\ngeneration in Texas in approximately 30 years and the first of such developments since the deregulation of the Texas electric power market (the\n"Project");\nIn connection with the Project, TXU will provide Employee with certain Confidential Information (as defined below), including specialized\nknowledge and insight regarding the manner and method in which TXU plans to develop such coal and lignite fueled generation and operate that\nportion of its business, and Employee will have access to and use such Confidential Information to assist TXU in connection with the Project;\nThe Confidential Information that Employee will have access to is a valuable, special, proprietary and unique asset used by TXU in its\nbusinesses and TXU has taken and will continue to take steps to protect the Confidential Information from unauthorized disclosure, which is of\ncritical importance and value to TXU and provides TXU with a competitive advantage in connection with the Project; and\nTXU would suffer irreparable harm if Employee were to use or enable others to use such Confidential Information in competition with TXU in\nTexas or other system control areas where there is or will be competition in the supply of electric power.\nTHEREFORE, for and in consideration of Employee's access to and receipt of TXU's Confidential Information and the opportunity to\nparticipate in the Project and the mutual covenants of this Agreement, the receipt and adequacy of which are acknowledged, TXU and Employee\nagree as follows:\n1. Definitions. For purposes of this Agreement, the following words shall have the following meanings:\n(a) "Affiliate" shall mean any entity that, directly or indirectly, controls, is controlled by or is under common control with TXU.\n(b) "Confidential Information" means information (i) disclosed to or known by the Employee as a consequence or through his/her work in\nconnection with the Project; (ii) not generally known outside TXU; and (iii) which relates to any aspect of TXU's business and development in\nconnection with the Project. Confidential Information includes all confidential and/or propriety information and/or trade secrets of TXU that has\nbeen and/or will be developed or used for the Project, including, but not limited to, information regarding suppliers, consultants, customers,\n1\nemployees, contractors and the electric generation industry not generally known to the public; strategies, methods, books, records and documents;\ntechnical information concerning products, equipment, services and processes; procurement procedures, pricing and pricing techniques; information\nconcerning past, current and prospective customers, investors and business affiliates (such as contact name, service provided, pricing, type and\namount of services used, financial data and/or other such information); pricing strategies and price curves; positions; plans or strategies for\nexpansion or acquisitions; budgets; research; financial and sales data (including budgets, forecasts and historical financial data); trading\nmethodologies and terms; communications information; evaluations, opinions and interpretations of information and data; marketing and\nmerchandising techniques; electronic databases; models; specifications; computer programs; contracts; bids or proposals; technologies and methods;\ntraining methods and processes; organizational structure; personnel information; payments or rates paid to consultants or other service providers; and\nother such confidential or proprietary information. Confidential Information also includes matters that Employee conceives or develops, as well\nas\nmatters Employee learns from other employees of TXU.\n(c) "Work Product" means all ideas, discoveries, programs, systems, methods, interfaces, protocols, databases, creations, artwork, articles,\nprogramming, processes, designs, inventions or improvements relating to technological matters, whether or not capable of being protected by patent,\ncopyright, trade secret or other intellectual property right.\n2. Non-Disclosure, Return of Property. and Ownership of Work Product.\n(a) Employee agrees not to divulge, use, furnish, disclose or make accessible, directly or indirectly, for his/her own benefit or the benefit of any\nother person or entity, any Confidential Information for any reason or purpose whatsoever, except to the extent that disclosure or use of such\nConfidential Information is necessary to fulfill his/her responsibilities as an employee of TXU in connection with the Project. Employee's\nobligations\nunder this Section 2 with respect to any specific Confidential Information shall cease only when that specific portion of the Confidential\nInformation becomes publicly known, other than as a result of disclosure by Employee, in its entirety and without combining portions of such\ninformation obtained separately. This Section 2 shall continue in full force and effect after termination of Employee's employment for any reason.\n(b) All memoranda, notes, lists, records, drawings, specifications and related documents and other documents or papers (and all copies thereof)\nrelating to or containing Confidential Information, including such items stored in electronic form or by any other means, made or compiled by or on\nbehalf of Employee, or made available to Employee, shall be property of TXU. Employee shall deliver such items to TXU promptly upon the\ntermination of Employee's employment with TXU or at any other time upon TXU's request and Employee shall not retain any electronic copies of\nany Confidential Information.\n(c) Employee acknowledges and agrees that all Work Product conceived by the Employee while employed by TXU, whether or not during\nregular working hours, provided such Work Product is related in some manner to the business of TXU, shall be owned and belong exclusively\nto\nTXU\nand that Employee shall have no personal interest in or right to use such Work Product. Employee shall, unless TXU otherwise agrees\nin\nwriting, and without additional compensation: (i) disclose promptly to TXU any and all Work Product, and business opportunities related to the\npresent and/or contemplated business of TXU ("Business Opportunities"); (ii) assign to TXU and comply with all\n2\nreasonable instructions of TXU regarding assigning, upon request, the entire rights to all such Work Product and Business Opportunities; (iii) give an\naffidavit and live testimony (as may be necessary or desirable in the sole and absolute discretion of TXU) in support of his/her inventorship or\ncreation in any appropriate case; and (iv) whenever requested to do so by TXU, execute any and all applications, assignments or other instruments\nthat TXU shall deem necessary to obtain, maintain, protect or vest in TXU the entire right, title and interest in and to such Work Product and\nBusiness Opportunities. This provision shall not apply to Work Product for which no equipment, supplies, facility or Confidential Information of\nTXU was used and which was developed entirely on Employee's own time and (i) does not relate to (a) the business of TXU; or (b) TXU's actual or\ndemonstrably anticipated business or development, or (ii) does not result from any work performed by Employee for TXU.\n3. Non-Solicitation and Non-Competition.\n(a) In order to protect the Confidential Information and in order to enforce Employee's agreement not to disclose Confidential Information,\nEmployee and TXU agree that:\n(i) during Employee's employment with TXU, and for the shorter of three (3) years after the termination of such employment or the\nperiod for which Employee received severance pay under the TXU Severance Plan in effect at the time of termination but in no event less than six\n(6) months, Employee shall not directly or indirectly, either for his/her own benefit or the benefit of any other person or entity, contribute\nEmployee's knowledge to or work with, in any capacity that would or is likely to involve use or disclosure of Confidential Information, any venture,\nbusiness, association, trust or other organization which in any way competes with TXU in connection with the development, construction or\noperation of electric power generation plants or related facilities, including air quality control systems, in plants fueled by a solid fossil fuel\nincluding petroleum coke, lignite and coal in Texas, PJM Power Pool or any other system control area in the United States in which there is\ncompetition among generators of electric power and energy.\n(ii) during the term of Employee's employment with TXU, and for three (3) years after the termination of such employment, Employee\nshall not\n(A) directly or indirectly request or advise any present or future TXU customers to cancel any contracts, or otherwise curtail their\ndealings, with TXU;\n(B) directly or indirectly request or advise any present or future TXU service provider or financial resource to withdraw, curtail,\nor cancel the furnishing of such service or resource to TXU; and\n(C) directly or indirectly induce or attempt to influence any employee of TXU to terminate his or her employment; interfere with\nthe relationship between TXU and its employees; or, employ or otherwise engage as an employee, independent contractor or otherwise any\nemployee of TXU.\nNotwithstanding anything to the contrary contained in this Section 3(a), Employee may own, directly or indirectly, securities of any entity traded on\nany national securities exchange or listed on the National Association of Securities Dealers Automated Quotation System if Employee does not,\ndirectly or indirectly, individually own 1% or more of any class of equity securities, or securities convertible into or exercisable or exchangeable for\n1% or more of any class of equity securities, of such entity.\n3\n(b) In the event of a breach by Employee of any covenant set forth in this Section 3, the term of such covenant shall be extended by the period\nof duration of such breach.\n(c) Until the termination of the period during which Employee's activities are limited by this Agreement, Employee will, within ten (10) days\nafter accepting any employment, consulting engagement, engagement as an independent contractor, partnership or other association, advise TXU of\nthe identity of the new employee, client, partner or other person with whom Employee has become associated. TXU may serve notice upon each\nsuch person that Employee is bound by this Agreement and furnish each such person with a copy of this Agreement.\n(d) Employee and TXU agree that the non-competition provisions set forth in this Section 3 are ancillary to this Agreement, which is an\nenforceable agreement. Employee agrees that any association by Employee with a competitor of TXU during the Applicable Period may lead to\nEmployee's unauthorized use of the Confidential Information, even if such use was unintentional. Because it would be impossible, as a practical\nmatter,\nto\nmonitor, restrain or police Employee's use of such Confidential Information other than through Employee's covenants contained in\nthis\nSection 3, Employee acknowledges that such restrictions are the narrowest method to protect TXU's interests, and the narrowest method of enforcing\nconsideration for his/her receipt of Confidential Information.\n4. Notices. Any notices shall be in writing and shall be deemed given (a) when personally delivered, (b) when confirmed if delivered\nby\nfacsimile or similar device, or (c) when sent by certified mail, return receipt requested, addressed to the other party at the address provided below\nits/his/her signature to this Agreement, or at such other address as may be specified through these notice procedures.\n5. Assignment; Parties Bound. TXU reserves the right to assign all of its rights, powers and privileges under this Agreement, including,\nwithout limitation, the right to enforce all of the terms of this Agreement, to successors or between Affiliates of TXU or any person who acquires a\nmajority of the outstanding stock or all or substantially all of the assets of TXU. Employee shall not assign or otherwise delegate his obligations or\nduties under this Agreement to any other person. Any assignment or delegation in violation of this Agreement shall be null and void. Subject to the\nforegoing, this Agreement shall be binding upon the parties hereto and shall inure to the benefit of the parties hereto and their respective heirs,\nexecutors, administrators, legal representatives, successors, and permitted assigns.\n6. Governing Law THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH LAWS OF THE\nSTATE OF TEXAS.\n7. Non-Waiver of Breach. A waiver of a breach or default by another must be in writing and shall not be deemed a waiver of a default by a\nthird party or any subsequent default or breach of the same or any other provision of this Agreement.\n8. Severability.; Reformation. If any provision of this Agreement, as applied to any party or to any circumstances, is held to be invalid or\nunenforceable, such holding will not affect any\n4\nother provision of this Agreement, the application of such provision to any other party or in any other circumstances or the validity or enforceability\nof this Agreement. If any such provision (including the limitations contained in Section 3 as to time, geographical area, and scope of activity to be\nrestrained) is so held to be unenforceable, the parties agree that the court or authority making such determination shall reform this Agreement\n(including by reducing the limitations contained in Section 3 as to time, geographical area and scope of activity to be restrained to the extent\nnecessary to cause such limitations to be reasonable and not otherwise impose a restraint that is greater than necessary to protect the goodwill and\nConfidential Information of TXU) so as to make such provision enforceable as reformed. In the event that an applicable court or authority would not\nhave the legal authority to take the actions described in the preceding sentence, the parties agree to negotiate in good faith to agree on a modified\nprovision that would, in so far as possible, reflect the original intent of this Agreement without violating applicable law.\n9. Remedies. The Employee recognizes and acknowledges the competitive and confidential nature of the Confidential Information and that\nirreparable damage will result to TXU if it is disclosed to any third party or is used for any purpose, other than as permitted by this Agreement. TXU\nand Employee further agree that money damages would not be a sufficient remedy for any breach of this Agreement by Employee and that such\ndamages would be difficult if not impossible to quantify. Accordingly, Employee agrees that TXU shall be entitled to an injunction or injunctions\nwithout the posting of any bond to prevent breaches or threatened breaches of this Agreement and/or to specific performance of this Agreement\nSuch remedies shall not be deemed to be the exclusive remedies for a breach by Employee of this Agreement but shall be in addition to all other\nremedies available at law or equity to TXU.\n10. No Right to Employment. Nothing in this Agreement shall be construed as giving Employee any right of employment or continued\nemployment with TXU.\n11. Employee Acknowledgement Employee acknowledges that (i) TXU is engaged in the business of owning, managing and operating certain\nsolid fuel and gas electric generation assets, (ii) TXU's business is highly competitive, (iii) Employee will be given access to Confidential\nInformation of TXU that is a valuable, special, proprietary and unique asset used by TXU in its respective businesses, (iv) he/she will confirm,\nby\nseparate acknowledgement, receipt of Confidential Information in conjunction with the Project and (v) protection of such Confidential Information\nagainst unauthorized disclosure and use is of critical importance to TXU.\n[Remainder of page intentionally left blank]\n5\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above.\nTXU CORP.\nBy:\nName:\nTitle:\nAddress: 1601 Bryan\nDallas, Texas 75201\nAttention: General Counsel\nFacsimile: (214) 812-6032\nBy:\n[Employee]\nAddress:\nDate:\nS-1	EX-10.1 2 dex101.htm FORM OF NON-DISCLOSURE, NON-SOLICITATION AND NON-COMPETITION\nAGREEMENT\nExhibit 10.1\nNON-DISCLOSURE, NON-SOLICITATION\nAND NON-COMPETITION\nAGREEMENT\nThis Non-Disclosure, Non-Solicitation and Non-Competition Agreement (the “Agreement”) is between TXU Corp., a Texas corporation, and\n(“Employee”).\nTXU Corp. and its Affiliates (“TXU”) are beginning a project which will involve the first development of lignite and coal fired electric\ngeneration in Texas in approximately 30 years and the first of such developments since the deregulation of the Texas electric power market (the\n“Project”);\nIn connection with the Project, TXU will provide Employee with certain Confidential Information (as defined below), including specialized\nknowledge and insight regarding the manner and method in which TXU plans to develop such coal and lignite fueled generation and operate that\nportion of its business, and Employee will have access to and use such Confidential Information to assist TXU in connection with the Project;\nThe Confidential Information that Employee will have access to is a valuable, special, proprietary and unique asset used by TXU in its\nbusinesses and TXU has taken and will continue to take steps to protect the Confidential Information from unauthorized disclosure, which is of\ncritical importance and value to TXU and provides TXU with a competitive advantage in connection with the Project; and\nTXU would suffer irreparable harm if Employee were to use or enable others to use such Confidential Information in competition with TXU in\nTexas or other system control areas where there is or will be competition in the supply of electric power.\nTHEREFORE, for and in consideration of Employee’s access to and receipt of TXU’s Confidential Information and the opportunity to\nparticipate in the Project and the mutual covenants of this Agreement, the receipt and adequacy of which are acknowledged, TXU and Employee\nagree as follows:\n1. Definitions. For purposes of this Agreement, the following words shall have the following meanings:\n(a) “Affiliate” shall mean any entity that, directly or indirectly, controls, is controlled by or is under common control with TXU.\n(b) “Confidential Information” means information (i) disclosed to or known by the Employee as a consequence or through his/her work in\nconnection with the Project; (ii) not generally known outside TXU; and (iii) which relates to any aspect of TXU’s business and development in\nconnection with the Project. Confidential Information includes all confidential and/or propriety information and/or trade secrets of TXU that has\nbeen and/or will be developed or used for the Project, including, but not limited to, information regarding suppliers, consultants, customers,\n1\nemployees, contractors and the electric generation industry not generally known to the public; strategies, methods, books, records and documents;\ntechnical information concerning products, equipment, services and processes; procurement procedures, pricing and pricing techniques; information\nconcerning past, current and prospective customers, investors and business affiliates (such as contact name, service provided, pricing, type and\namount of services used, financial data and/or other such information); pricing strategies and price curves; positions; plans or strategies for\nexpansion or acquisitions; budgets; research; financial and sales data (including budgets, forecasts and historical financial data); trading\nmethodologies and terms; communications information; evaluations, opinions and interpretations of information and data; marketing and\nmerchandising techniques; electronic databases; models; specifications; computer programs; contracts; bids or proposals; technologies and methods;\ntraining methods and processes; organizational structure; personnel information; payments or rates paid to consultants or other service providers; and\nother such confidential or proprietary information. Confidential Information also includes matters that Employee conceives or develops, as well as\nmatters Employee learns from other employees of TXU.\n(c) “Work Product” means all ideas, discoveries, programs, systems, methods, interfaces, protocols, databases, creations, artwork, articles,\nprogramming, processes, designs, inventions or improvements relating to technological matters, whether or not capable of being protected by patent,\ncopyright, trade secret or other intellectual property right.\n2. Non-Disclosure, Return of Property and Ownership of Work Product.\n(a) Employee agrees not to divulge, use, furnish, disclose or make accessible, directly or indirectly, for his/her own benefit or the benefit of any\nother person or entity, any Confidential Information for any reason or purpose whatsoever, except to the extent that disclosure or use of such\nConfidential Information is necessary to fulfill his/her responsibilities as an employee of TXU in connection with the Project. Employee’s\nobligations under this Section 2 with respect to any specific Confidential Information shall cease only when that specific portion of the Confidential\nInformation becomes publicly known, other than as a result of disclosure by Employee, in its entirety and without combining portions of such\ninformation obtained separately. This Section 2 shall continue in full force and effect after termination of Employee’s employment for any reason.\n(b) All memoranda, notes, lists, records, drawings, specifications and related documents and other documents or papers (and all copies thereof)\nrelating to or containing Confidential Information, including such items stored in electronic form or by any other means, made or compiled by or on\nbehalf of Employee, or made available to Employee, shall be property of TXU. Employee shall deliver such items to TXU promptly upon the\ntermination of Employee’s employment with TXU or at any other time upon TXU’s request and Employee shall not retain any electronic copies of\nany Confidential Information.\n(c) Employee acknowledges and agrees that all Work Product conceived by the Employee while employed by TXU, whether or not during\nregular working hours, provided such Work Product is related in some manner to the business of TXU, shall be owned and belong exclusively to\nTXU and that Employee shall have no personal interest in or right to use such Work Product. Employee shall, unless TXU otherwise agrees in\nwriting, and without additional compensation: (i) disclose promptly to TXU any and all Work Product, and business opportunities related to the\npresent and/or contemplated business of TXU (“Business Opportunities”); (ii) assign to TXU and comply with all\n2\nreasonable instructions of TXU regarding assigning, upon request, the entire rights to all such Work Product and Business Opportunities; (iii) give an\naffidavit and live testimony (as may be necessary or desirable in the sole and absolute discretion of TXU) in support of his/her inventorship or\ncreation in any appropriate case; and (iv) whenever requested to do so by TXU, execute any and all applications, assignments or other instruments\nthat TXU shall deem necessary to obtain, maintain, protect or vest in TXU the entire right, title and interest in and to such Work Product and\nBusiness Opportunities. This provision shall not apply to Work Product for which no equipment, supplies, facility or Confidential Information of\nTXU was used and which was developed entirely on Employee’s own time and (i) does not relate to (a) the business of TXU; or (b) TXU’s actual or\ndemonstrably anticipated business or development, or (ii) does not result from any work performed by Employee for TXU.\n3. Non-Solicitation and Non-Competition.\n(a) In order to protect the Confidential Information and in order to enforce Employee’s agreement not to disclose Confidential Information,\nEmployee and TXU agree that:\n(i) during Employee’s employment with TXU, and for the shorter of three (3) years after the termination of such employment or the\nperiod for which Employee received severance pay under the TXU Severance Plan in effect at the time of termination but in no event less than six\n(6) months, Employee shall not directly or indirectly, either for his/her own benefit or the benefit of any other person or entity, contribute\nEmployee’s knowledge to or work with, in any capacity that would or is likely to involve use or disclosure of Confidential Information, any venture,\nbusiness, association, trust or other organization which in any way competes with TXU in connection with the development, construction or\noperation of electric power generation plants or related facilities, including air quality control systems, in plants fueled by a solid fossil fuel\nincluding petroleum coke, lignite and coal in Texas, PJM Power Pool or any other system control area in the United States in which there is\ncompetition among generators of electric power and energy.\n(ii) during the term of Employee’s employment with TXU, and for three (3) years after the termination of such employment, Employee\nshall not\n(A) directly or indirectly request or advise any present or future TXU customers to cancel any contracts, or otherwise curtail their\ndealings, with TXU;\n(B) directly or indirectly request or advise any present or future TXU service provider or financial resource to withdraw, curtail,\nor cancel the furnishing of such service or resource to TXU; and\n(C) directly or indirectly induce or attempt to influence any employee of TXU to terminate his or her employment; interfere with\nthe relationship between TXU and its employees; or, employ or otherwise engage as an employee, independent contractor or otherwise any\nemployee of TXU.\nNotwithstanding anything to the contrary contained in this Section 3(a), Employee may own, directly or indirectly, securities of any entity traded on\nany national securities exchange or listed on the National Association of Securities Dealers Automated Quotation System if Employee does not,\ndirectly or indirectly, individually own 1% or more of any class of equity securities, or securities convertible into or exercisable or exchangeable for\n1% or more of any class of equity securities, of such entity.\n3\n(b) In the event of a breach by Employee of any covenant set forth in this Section 3, the term of such covenant shall be extended by the period\nof duration of such breach.\n(c) Until the termination of the period during which Employee’s activities are limited by this Agreement, Employee will, within ten (10) days\nafter accepting any employment, consulting engagement, engagement as an independent contractor, partnership or other association, advise TXU of\nthe identity of the new employee, client, partner or other person with whom Employee has become associated. TXU may serve notice upon each\nsuch person that Employee is bound by this Agreement and furnish each such person with a copy of this Agreement.\n(d) Employee and TXU agree that the non-competition provisions set forth in this Section 3 are ancillary to this Agreement, which is an\nenforceable agreement. Employee agrees that any association by Employee with a competitor of TXU during the Applicable Period may lead to\nEmployee’s unauthorized use of the Confidential Information, even if such use was unintentional. Because it would be impossible, as a practical\nmatter, to monitor, restrain or police Employee’s use of such Confidential Information other than through Employee’s covenants contained in this\nSection 3, Employee acknowledges that such restrictions are the narrowest method to protect TXU’s interests, and the narrowest method of enforcing\nconsideration for his/her receipt of Confidential Information.\n4. Notices. Any notices shall be in writing and shall be deemed given (a) when personally delivered, (b) when confirmed if delivered by\nfacsimile or similar device, or (c) when sent by certified mail, return receipt requested, addressed to the other party at the address provided below\nits/his/her signature to this Agreement, or at such other address as may be specified through these notice procedures.\n5. Assignment; Parties Bound. TXU reserves the right to assign all of its rights, powers and privileges under this Agreement, including,\nwithout limitation, the right to enforce all of the terms of this Agreement, to successors or between Affiliates of TXU or any person who acquires a\nmajority of the outstanding stock or all or substantially all of the assets of TXU. Employee shall not assign or otherwise delegate his obligations or\nduties under this Agreement to any other person. Any assignment or delegation in violation of this Agreement shall be null and void. Subject to the\nforegoing, this Agreement shall be binding upon the parties hereto and shall inure to the benefit of the parties hereto and their respective heirs,\nexecutors, administrators, legal representatives, successors, and permitted assigns.\n6. Governing Law. THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH LAWS OF THE\nSTATE OF TEXAS.\n7. Non-Waiver of Breach. A waiver of a breach or default by another must be in writing and shall not be deemed a waiver of a default by a\nthird party or any subsequent default or breach of the same or any other provision of this Agreement.\n8. Severability; Reformation. If any provision of this Agreement, as applied to any party or to any circumstances, is held to be invalid or\nunenforceable, such holding will not affect any\n4\nother provision of this Agreement, the application of such provision to any other party or in any other circumstances or the validity or enforceability\nof this Agreement. If any such provision (including the limitations contained in Section 3 as to time, geographical area, and scope of activity to be\nrestrained) is so held to be unenforceable, the parties agree that the court or authority making such determination shall reform this Agreement\n(including by reducing the limitations contained in Section 3 as to time, geographical area and scope of activity to be restrained to the extent\nnecessary to cause such limitations to be reasonable and not otherwise impose a restraint that is greater than necessary to protect the goodwill and\nConfidential Information of TXU) so as to make such provision enforceable as reformed. In the event that an applicable court or authority would not\nhave the legal authority to take the actions described in the preceding sentence, the parties agree to negotiate in good faith to agree on a modified\nprovision that would, in so far as possible, reflect the original intent of this Agreement without violating applicable law.\n9. Remedies. The Employee recognizes and acknowledges the competitive and confidential nature of the Confidential Information and that\nirreparable damage will result to TXU if it is disclosed to any third party or is used for any purpose, other than as permitted by this Agreement. TXU\nand Employee further agree that money damages would not be a sufficient remedy for any breach of this Agreement by Employee and that such\ndamages would be difficult if not impossible to quantify. Accordingly, Employee agrees that TXU shall be entitled to an injunction or injunctions\nwithout the posting of any bond to prevent breaches or threatened breaches of this Agreement and/or to specific performance of this Agreement.\nSuch remedies shall not be deemed to be the exclusive remedies for a breach by Employee of this Agreement but shall be in addition to all other\nremedies available at law or equity to TXU.\n10. No Right to Employment. Nothing in this Agreement shall be construed as giving Employee any right of employment or continued\nemployment with TXU.\n11. Employee Acknowledgement. Employee acknowledges that (i) TXU is engaged in the business of owning, managing and operating certain\nsolid fuel and gas electric generation assets, (ii) TXU’s business is highly competitive, (iii) Employee will be given access to Confidential\nInformation of TXU that is a valuable, special, proprietary and unique asset used by TXU in its respective businesses, (iv) he/she will confirm, by\nseparate acknowledgement, receipt of Confidential Information in conjunction with the Project and (v) protection of such Confidential Information\nagainst unauthorized disclosure and use is of critical importance to TXU.\n[Remainder of page intentionally left blank]\n5\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above.\nTXU CORP.\nBy:\nName:\nTitle:\nAddress: 1601 Bryan\nDallas, Texas 75201\nAttention: General Counsel\nFacsimile: (214) 812-6032\nBy:\n[Employee]\nAddress:\nDate:\nS-1
+e36c79d0e4b25e4e9cc76aafd176afe8.pdf	effective_date jurisdiction party term	EX-99.(D)(3) 8 a2215783zex-99 _d3.htm EX-99.(D)(3)\nQuickLinks -- Click here to rapidly navigate through this document\nEXHIBIT (d)(3)\nJanuary 25, 2013\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nDear Mr. Michaud:\nIn connection with J.F. Lehman & Company's ("you", "your", or "JFL") consideration of a possible acquisition, investment or loan transaction\n("Transaction") involving OP-TECH Environmental Services, Inc. (the "Company"), the Company and you (and each a "Party" and together the\n"Parties") have agreed to exchange certain confidential and other information concerning the Company and possible Transaction.\nAs a condition to exchanging such information, including any Confidential Memorandum or similar document, the "Parties" agree to treat any\ninformation concerning the Company, which is furnished to you on behalf of the Company, whether furnished before or after the date of this letter,\ntogether with any and all analyses, compilations, studies or other documents prepared by you or any of your directors, officers, managers,\nsubsidiaries, lenders, financing sources, employees, agents, advisors, attorneys, accountants, consultants or representatives (all of the foregoing who\nreceive Evaluation Material directly or indirectly from a party, collectively, "Representatives") which contain or otherwise reflect any information\ndisclosed by the Parties (hereinafter collectively referred to as the "Evaluation Material"), in accordance with the provisions of this agreement. The\nterm "Evaluation Material" does not include information which (i) was or is already in your possession prior to the time of disclosure to you by the\nCompany, provided that such information did not come from a source known by you to be bound by a confidentiality agreement with the Company,\nor otherwise prohibited from disclosing the information to you by a contractual, legal or fiduciary obligation, (ii) was, is or becomes generally\navailable to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (iii) was, is or becomes\navailable to you on a non-confidential basis from a source other than the Company, provided that such source is not known by you to be bound by a\nconfidentiality agreement with the Company, or otherwise prohibited from disclosing the information to you by a contractual, legal or fiduciary\nobligation, or (iv) was or is developed by you without reliance on or reference to Evaluation Material.\nThe Parties hereby agree that the Evaluation Material will be used solely for the purpose of evaluating the Transaction between the Parties.\nWithout limiting the foregoing, each Party specifically agrees that the Evaluation Material shall not be used to obtain any competitive advantage at\nany time in the event a Transaction with the Company is not consummated. In addition, such information will be kept confidential by each Party\nexcept to the extent that disclosure of such information (i) has been consented to in writing by the disclosing Party, (ii) is required by law, regulation,\nsupervisory authority or other applicable judicial or governmental order, or (iii) is made to your Representatives who, in your reasonable opinion,\nneed to know such information for the purpose of evaluating the Transaction, provided that such Representatives be informed by the receiving Party\nof the confidential nature of the Evaluation Material, and agree to maintain the confidentiality thereof. In any event, each Party shall be responsible\nfor any breach of this agreement by its Representatives. To the extent the Agreement purports to be binding upon your subsidiaries, the Company\nagrees that any non-wholly owned company in which you or an investment fund managed by you may now or in the future have an investment will\nnot be deemed subject to or bound by the Agreement (as a Representative or otherwise) unless and only to the extent such company has been\nprovided the Evaluation Material by you, it being acknowledged and agreed that possession or knowledge of Evaluation Material by you or its\ndesignated representative(s) on such company's board or governing body shall not, solely for that reason, be deemed imputed to such company.\nNotwithstanding any provision of this Agreement to the\nLOGO\n1 Adler Drive\nEast Syracuse, NY 13057\nPhone: 315-437 -2065\nFax: 315-437 -6973\nwww.op-tech.us\ncontrary, no provision of this Agreement shall apply to any action taken independently by any of the portfolio companies of your affiliated\ninvestment funds so long as in each case such portfolio company has not received any Evaluation Material.\nIn addition, unless otherwise required by law, without the prior consent of the Parties, each Party will direct its Representatives not to disclose\nto any person (i) that the Evaluation Material has been made available, (ii) that discussions or negotiations are taking place concerning a Transaction\nor (iii) any terms, conditions or other facts with respect to the proposed Transaction, including the status thereof.\nIn the event that you or any of your Representatives are requested or required by judicial, legislative or regulatory process to disclose any\nEvaluation Material, you will, if permitted by law, provide the Company with prompt notice of any such request or requirement so that the Company\nmay seek, at its own expense, an appropriate protective order or other appropriate remedy, at its sole expense, and/or waive compliance with the\nterms of this agreement. In the event that (i) such protective order or other remedy is not obtained, or (ii) the Company in writing waives compliance\nwith the terms thereof, you may disclose only that portion of the Evaluation Material which is legally required, and you will exercise commercially\nreasonable efforts to obtain assurance that confidential treatment will be accorded to such Evaluation Material.\nIf either Party or any of their respective Representatives is requested or required (by oral questions, interrogatories, requests for information or\ndocuments, subpoena, civil investigative demand, or similar process) to disclose any Evaluation Material received by it or to make any other\ndisclosure, such party agrees to provide the disclosing Party of such Evaluation Material with prompt notice of each such request, to the extent\npracticable, so that the disclosing Party may seek, at its own expense, an appropriate protective order or waive compliance by the receiving Party\nwith the provisions of this agreement or both. If, absent the entry of a protective order or the receipt of a waiver under this agreement, the receiving\nParty or its Representatives are, in the opinion of its or its Representatives' counsel, as the case may be, legally compelled to disclose such\nEvaluation material under pain of liability for contempt or other censure or penalty, the receiving Party may disclose such information to the persons\nand to the extent required without liability under this agreement.\nNeither party shall be entitled to any special, consequential, indirect, punitive or exemplary damages, including loss of profits, as a result of any\nbreach of this Agreement by the other party, its affiliates or its Representatives, regardless of whether a claim is asserted under contract, tort or other\ntheory.\nUnless otherwise directed by the Company, all communications regarding a Transaction and all requests for additional information concerning\nthe Company will be submitted or directed solely to the Company to the attention of its Chief Executive Officer. You understand and acknowledge\nthat the Company shall not be deemed to make, any representations or warranties, express or implied, as to the accuracy or completeness of the\nEvaluation Material, and the Company shall not have any liability to you or any of its Representatives resulting from use thereof, except for fraud,\nwillful misconduct, or as specifically agreed to herein. Only those representations or warranties which are made by the Company in a final definitive\nagreement regarding a Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have\nany legal effect.\nThis agreement shall be governed by and interpreted according to the laws of the State of New York (exclusive of such State's conflicts of laws\nrules) and subject to the exclusive jurisdiction of the federal or state courts located in Southern District of New York. This Agreement binds the\nParties only with respect to the matters expressly set forth herein. As such, unless and until a definitive agreement regarding a Transaction between\nthe Company and you has been executed, (i) neither the Company nor you will be under any legal obligation of any kind whatsoever to negotiate or\nconsummate a Transaction by virtue of this agreement or any other written or oral expression with respect thereto made by the Company or any\nother party, and (ii) you shall not have any claim whatsoever against the Company or any of their respective directors, officers, employees,\nstockholders, owners, agents or\nrepresentatives, arising out of any Transaction, except for fraud, willful misconduct, or as specifically agreed to herein.\nJFL's obligations under this agreement shall remain in effect for a period of twelve months from the date hereof, unless and until this agreement\nis terminated by the Company or is superseded by another agreement between you and the Company that concerns your use of the Evaluation\nMaterial.\nThis letter agreement shall constitute the full agreement by us with respect to the Evaluation Material submitted by the Company to us and shall\nsupersede any and all prior agreements and understandings relating thereto.\nThis agreement may be executed in counterparts. Please confirm that the foregoing is in accordance with your understanding of our agreement\nby signing and returning to us a copy of this letter.\nVery truly yours,\nOP-TECH Environmental Services, Inc. (the "Company")\nAccepted and agreed to as of the 25 day of January, 2013.\nBy: /s/ CHARLES B. MORGAN\nName: Charles B. Morgan\nTitle: CEO\nCompany: J.F. Lehman & Company\nBy: /s/ JAMES J. MICHAUD\nJames J. Michaud\nQuickLinks\nEXHIBIT (d)(3)\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT	EX-99.(D)(3) 8 a2215783zex-99_d3.htm EX-99.(D)(3)\nQuickLinks -- Click here to rapidly navigate through this document\nEXHIBIT (d)(3)\n1 Adler Drive\n[LOGO East Syracuse, NY 13057\nPhone: 315-437-2065\nFax: 315-437-6973\nwww.op-tech.us\nJanuary 25, 2013\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nDear Mr. Michaud:\nIn connection with J.F. Lehman & Company's ("you", "your", or "JFL") consideration of a possible acquisition, investment or loan transaction\n("Transaction") involving OP-TECH Environmental Services, Inc. (the "Company"), the Company and you (and each a "Party" and together the\n"Parties") have agreed to exchange certain confidential and other information concerning the Company and possible Transaction.\nAs a condition to exchanging such information, including any Confidential Memorandum or similar document, the "Parties" agree to treat any\ninformation concerning the Company, which is furnished to you on behalf of the Company, whether furnished before or after the date of this letter,\ntogether with any and all analyses, compilations, studies or other documents prepared by you or any of your directors, officers, managers,\nsubsidiaries, lenders, financing sources, employees, agents, advisors, attorneys, accountants, consultants or representatives (all of the foregoing who\nreceive Evaluation Material directly or indirectly from a party, collectively, "Representatives") which contain or otherwise reflect any information\ndisclosed by the Parties (hereinafter collectively referred to as the "Evaluation Material"), in accordance with the provisions of this agreement. The\nterm "Evaluation Material" does not include information which (i) was or is already in your possession prior to the time of disclosure to you by the\nCompany, provided that such information did not come from a source known by you to be bound by a confidentiality agreement with the Company,\nor otherwise prohibited from disclosing the information to you by a contractual, legal or fiduciary obligation, (ii) was, is or becomes generally\navailable to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (iii) was, is or becomes\navailable to you on a non-confidential basis from a source other than the Company, provided that such source is not known by you to be bound by a\nconfidentiality agreement with the Company, or otherwise prohibited from disclosing the information to you by a contractual, legal or fiduciary\nobligation, or (iv) was or is developed by you without reliance on or reference to Evaluation Material.\nThe Parties hereby agree that the Evaluation Material will be used solely for the purpose of evaluating the Transaction between the Parties.\nWithout limiting the foregoing, each Party specifically agrees that the Evaluation Material shall not be used to obtain any competitive advantage at\nany time in the event a Transaction with the Company is not consummated. In addition, such information will be kept confidential by each Party\nexcept to the extent that disclosure of such information (i) has been consented to in writing by the disclosing Party, (ii) is required by law, regulation,\nsupervisory authority or other applicable judicial or governmental order, or (iii) is made to your Representatives who, in your reasonable opinion,\nneed to know such information for the purpose of evaluating the Transaction, provided that such Representatives be informed by the receiving Party\nof the confidential nature of the Evaluation Material, and agree to maintain the confidentiality thereof. In any event, each Party shall be responsible\nfor any breach of this agreement by its Representatives. To the extent the Agreement purports to be binding upon your subsidiaries, the Company\nagrees that any non-wholly owned company in which you or an investment fund managed by you may now or in the future have an investment will\nnot be deemed subject to or bound by the Agreement (as a Representative or otherwise) unless and only to the extent such company has been\nprovided the Evaluation Material by you, it being acknowledged and agreed that possession or knowledge of Evaluation Material by you or its\ndesignated representative(s) on such company's board or governing body shall not, solely for that reason, be deemed imputed to such company.\nNotwithstanding any provision of this Agreement to the\ncontrary, no provision of this Agreement shall apply to any action taken independently by any of the portfolio companies of your affiliated\ninvestment funds so long as in each case such portfolio company has not received any Evaluation Material.\nIn addition, unless otherwise required by law, without the prior consent of the Parties, each Party will direct its Representatives not to disclose\nto any person (i) that the Evaluation Material has been made available, (ii) that discussions or negotiations are taking place concerning a Transaction\nor (iii) any terms, conditions or other facts with respect to the proposed Transaction, including the status thereof.\nIn the event that you or any of your Representatives are requested or required by judicial, legislative or regulatory process to disclose any\nEvaluation Material, you will, if permitted by law, provide the Company with prompt notice of any such request or requirement so that the Company\nmay seek, at its own expense, an appropriate protective order or other appropriate remedy, at its sole expense, and/or waive compliance with the\nterms of this agreement. In the event that (i) such protective order or other remedy is not obtained, or (ii) the Company in writing waives compliance\nwith the terms thereof, you may disclose only that portion of the Evaluation Material which is legally required, and you will exercise commercially\nreasonable efforts to obtain assurance that confidential treatment will be accorded to such Evaluation Material.\nIf either Party or any of their respective Representatives is requested or required (by oral questions, interrogatories, requests for information or\ndocuments, subpoena, civil investigative demand, or similar process) to disclose any Evaluation Material received by it or to make any other\ndisclosure, such party agrees to provide the disclosing Party of such Evaluation Material with prompt notice of each such request, to the extent\npracticable, so that the disclosing Party may seek, at its own expense, an appropriate protective order or waive compliance by the receiving Party\nwith the provisions of this agreement or both. If, absent the entry of a protective order or the receipt of a waiver under this agreement, the receiving\nParty or its Representatives are, in the opinion of its or its Representatives' counsel, as the case may be, legally compelled to disclose such\nEvaluation material under pain of liability for contempt or other censure or penalty, the receiving Party may disclose such information to the persons\nand to the extent required without liability under this agreement.\nNeither party shall be entitled to any special, consequential, indirect, punitive or exemplary damages, including loss of profits, as a result of any\nbreach of this Agreement by the other party, its affiliates or its Representatives, regardless of whether a claim is asserted under contract, tort or other\ntheory.\nUnless otherwise directed by the Company, all communications regarding a Transaction and all requests for additional information concerning\nthe Company will be submitted or directed solely to the Company to the attention of its Chief Executive Officer. You understand and acknowledge\nthat the Company shall not be deemed to make, any representations or warranties, express or implied, as to the accuracy or completeness of the\nEvaluation Material, and the Company shall not have any liability to you or any of its Representatives resulting from use thereof, except for fraud,\nwillful misconduct, or as specifically agreed to herein. Only those representations or warranties which are made by the Company in a final definitive\nagreement regarding a Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have\nany legal effect.\nThis agreement shall be governed by and interpreted according to the laws of the State of New York (exclusive of such State's conflicts of laws\nrules) and subject to the exclusive jurisdiction of the federal or state courts located in Southern District of New York. This Agreement binds the\nParties only with respect to the matters expressly set forth herein. As such, unless and until a definitive agreement regarding a Transaction between\nthe Company and you has been executed, (i) neither the Company nor you will be under any legal obligation of any kind whatsoever to negotiate or\nconsummate a Transaction by virtue of this agreement or any other written or oral expression with respect thereto made by the Company or any\nother party, and (ii) you shall not have any claim whatsoever against the Company or any of their respective directors, officers, employees,\nstockholders, owners, agents or\nrepresentatives, arising out of any Transaction, except for fraud, willful misconduct, or as specifically agreed to herein.\nJFL's obligations under this agreement shall remain in effect for a period of twelve months from the date hereof, unless and until this agreement\nis terminated by the Company or is superseded by another agreement between you and the Company that concerns your use of the Evaluation\nMaterial.\nThis letter agreement shall constitute the full agreement by us with respect to the Evaluation Material submitted by the Company to us and shall\nsupersede any and all prior agreements and understandings relating thereto.\nThis agreement may be executed in counterparts. Please confirm that the foregoing is in accordance with your understanding of our agreement\nby signing and returning to us a copy of this letter.\nVery truly yours,\nOP-TECH Environmental Services, Inc. (the "Company")\nBy: /s/ CHARLES B. MORGAN\nName: Charles B. Morgan\nTitle: CEO\nAccepted and agreed to as of the 25 day of January, 2013.\nCompany: J.F. Lehman & Company\nBy: /s/ JAMES J. MICHAUD\nJames J. Michaud\nQuickLinks\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT	EX-99.(D)(3) 8 a2215783zex-99_d3.htm EX-99.(D)(3)\nQuickLinks Click here to rapidly navigate through this document\nEXHIBIT (d)(3)\n1 Adler Drive\nLOGO\nEast Syracuse, NY 13057\nPhone: 315-437-2065\nFax: 315-437-6973\nwww.op-tech.us\nJanuary 25, 2013\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nDear Mr. Michaud:\nIn connection with J.F. Lehman & Company's ("you", "your", or "JFL") consideration of a possible acquisition, investment or loan transaction\n("Transaction") involving OP-TECH Environmental Services, Inc. (the "Company"), the Company and you (and each a "Party" and together the\n"Parties") have agreed to exchange certain confidential and other information concerning the Company and possible Transaction.\nAs a condition to exchanging such information, including any Confidential Memorandum or similar document, the "Parties" agree to treat any\ninformation concerning the Company, which is furnished to you on behalf of the Company, whether furnished before or after the date of this letter,\ntogether with any and all analyses, compilations, studies or other documents prepared by you or any of your directors, officers, managers,\nsubsidiaries, lenders, financing sources, employees, agents, advisors, attorneys, accountants, consultants or representatives (all of the foregoing who\nreceive Evaluation Material directly or indirectly from a party, collectively, "Representatives") which contain or otherwise reflect any information\ndisclosed by the Parties (hereinafter collectively referred to as the "Evaluation Material"), in accordance with the provisions of this agreement. The\nterm "Evaluation Material" does not include information which (i) was or is already in your possession prior to the time of disclosure to you by the\nCompany, provided that such information did not come from a source known by you to be bound by a confidentiality agreement with the Company,\nor otherwise prohibited from disclosing the information to you by a contractual, legal or fiduciary obligation, (ii) was, is or becomes generally\navailable to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (iii) was, is or becomes\navailable to you on a non-confidential basis from a source other than the Company, provided that such source is not known by you to be bound by a\nconfidentiality agreement with the Company, or otherwise prohibited from disclosing the information to you by a contractual, legal or fiduciary\nobligation, or (iv) was or is developed by you without reliance on or reference to Evaluation Material.\nThe Parties hereby agree that the Evaluation Material will be used solely for the purpose of evaluating the Transaction between the Parties.\nWithout limiting the foregoing, each Party specifically agrees that the Evaluation Material shall not be used to obtain any competitive advantage at\nany time in the event a Transaction with the Company is not consummated. In addition, such information will be kept confidential by each Party\nexcept to the extent that disclosure of such information (i) has been consented to in writing by the disclosing Party, (ii) is required by law, regulation,\nsupervisory authority or other applicable judicial or governmenta order, or (iii) is made to your Representatives who, in your reasonable opinion,\nneed to know such information for the purpose of evaluating the Transaction, provided that such Representatives be informed by the receiving Party\nof the confidential nature of the Evaluation Material, and agree to maintain the confidentiality thereof. In any event, each Party shall be responsible\nfor any breach of this agreement by its Representatives. To the extent the Agreement purports to be binding upon your subsidiaries, the Company\nagrees that any non-wholly owned company in which you or an investment fund managed by you may now or in the future have an investment will\nnot be deemed subject to or bound by the Agreement (as a Representative or otherwise) unless and only to the extent such company has been\nprovided the Evaluation Material by you, it being acknowledged and agreed that possession or knowledge of Evaluation Material by you or its\ndesignated representative(s) on such company's board or governing body shall not, solely for that reason, be deemed imputed to such company.\nNotwithstanding any provision of this Agreement to the\ncontrary, no provision of this Agreement shall apply to any action taken independently by any of the portfolio companies of your affiliated\ninvestment funds so long as in each case such portfolio company has not received any Evaluation Material.\nIn addition, unless otherwise required by law, without the prior consent of the Parties, each Party will direct its Representatives not to disclose\nto any person (i) that the Evaluation Material has been made available, (ii) that discussions or negotiations are taking place concerning a Transaction\nor (iii) any terms, conditions or other facts with respect to the proposed Transaction, including the status thereof.\nIn the event that you or any of your Representatives are requested or required by judicial, legislative or regulatory process to disclose any\nEvaluation Material, you will, if permitted by law, provide the Company with prompt notice of any such request or requirement so that the Company\nmay seek, at its own expense, an appropriate protective order or other appropriate remedy, at its sole expense, and/or waive compliance with the\nterms of this agreement. In the event that (i) such protective order or other remedy is not obtained, or (ii) the Company in writing waives compliance\nwith the terms thereof, you may disclose only that portion of the Evaluation Material which is legally required, and you will exercise commercially\nreasonable efforts to obtain assurance that confidential treatment will be accorded to such Evaluation Material.\nIf either Party or any of their respective Representatives is requested or required (by oral questions, interrogatories, requests for information or\ndocuments, subpoena, civil investigative demand, or similar process) to disclose any Evaluation Material received by it or to make any other\ndisclosure, such party agrees to provide the disclosing Party of such Evaluation Material with prompt notice of each such request, to the extent\npracticable, so that the disclosing Party may seek, at its own expense, an appropriate protective order or waive compliance by the receiving Party\nwith the provisions of this agreement or both. If, absent the entry of a protective order or the receipt of a waiver under this agreement, the receiving\nParty or its Representatives are, in the opinion of its or its Representatives' counsel, as the case may be, legally compelled to disclose such\nEvaluation material under pain of liability for contempt or other censure or penalty, the receiving Party may disclose such information to the persons\nand to the extent required without liability under this agreement.\nNeither party shall be entitled to any special, consequential, indirect, punitive or exemplary damages, including loss of profits, as a result of any\nbreach of this Agreement by the other party, its affiliates or its Representatives, regardless of whether a claim is asserted under contract, tort or other\ntheory.\nUnless otherwise directed by the Company, all communications regarding a Transaction and all requests for additional information concerning\nthe Company will be submitted or directed solely to the Company to the attention of its Chief Executive Officer. You understand and acknowledge\nthat the Company shall not be deemed to make, any representations or warranties, express or implied, as to the accuracy or completeness of the\nEvaluation Material, and the Company shall not have any liability to you or any of its Representatives resulting from use thereof, except for fraud,\nwillful misconduct, or as specifically agreed to herein. Only those representations or warranties which are made by the Company in a final definitive\nagreement regarding a Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have\nany legal effect.\nThis agreement shall be governed by and interpreted according to the laws of the State of New York (exclusive of such State's conflicts of laws\nrules) and subject to the exclusive jurisdiction of the federal or state courts located in Southern District of New York. This Agreement binds the\nParties only with respect to the matters expressly set forth herein. As such, unless and until a definitive agreement regarding a Transaction between\nthe Company and you has been executed, (i) neither the Company nor you will be under any legal obligation of any kind whatsoever to negotiate or\nconsummate a Transaction by virtue of this agreement or any other written or oral expression with respect thereto made by the Company or any\nother party, and (ii) you shall not have any claim whatsoever against the Company or any of their respective directors, officers, employees,\nstockholders, owners, agents or\nrepresentatives, arising out of any Transaction, except for fraud, willful misconduct, or as specifically agreed to herein.\nJFL's obligations under this agreement shall remain in effect for a period of twelve months from the date hereof, unless and until this agreement\nis terminated by the Company or is superseded by another agreement between you and the Company that concerns your use of the Evaluation\nMaterial.\nThis letter agreement shall constitute the full agreement by us with respect to the Evaluation Material submitted by the Company to us and shall\nsupersede any and all prior agreements and understandings relating thereto.\nThis agreement may be executed in counterparts. Please confirm that the foregoing is in accordance with your understanding of our agreement\nby signing and returning to us a copy of this letter.\nVery truly yours,\nOP-TECH Environmental Services, Inc. (the "Company")\nBy: /s/ CHARLES B. MORGAN\nName: Charles B. Morgan\nTitle: CEO\nAccepted and agreed to as of the 25 day of January, 2013.\nCompany: J.F. Lehman & Company\nBy: /s/ JAMES J. MICHAUD\nJames J. Michaud\nQuickLinks\nEXHIBIT (d).(3)\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT	EX-99.(D)(3) 8 a2215783zex-99 _d3.htm EX-99.(D)(3)\nQuickLinks -- Click here to rapidly navigate through this document\nEXHIBIT (d)(3)\nJanuary 25, 2013\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT\nDear Mr. Michaud:\nIn connection with J.F. Lehman & Company's ("you", "your", or "JFL") consideration of a possible acquisition, investment or loan transaction\n("Transaction") involving OP-TECH Environmental Services, Inc. (the "Company"), the Company and you (and each a "Party" and together the\n"Parties") have agreed to exchange certain confidential and other information concerning the Company and possible Transaction.\nAs a condition to exchanging such information, including any Confidential Memorandum or similar document, the "Parties" agree to treat any\ninformation concerning the Company, which is furnished to you on behalf of the Company, whether furnished before or after the date of this letter,\ntogether with any and all analyses, compilations, studies or other documents prepared by you or any of your directors, officers, managers,\nsubsidiaries, lenders, financing sources, employees, agents, advisors, attorneys, accountants, consultants or representatives (all of the foregoing who\nreceive Evaluation Material directly or indirectly from a party, collectively, "Representatives") which contain or otherwise reflect any information\ndisclosed by the Parties (hereinafter collectively referred to as the "Evaluation Material"), in accordance with the provisions of this agreement. The\nterm "Evaluation Material" does not include information which (i) was or is already in your possession prior to the time of disclosure to you by the\nCompany, provided that such information did not come from a source known by you to be bound by a confidentiality agreement with the Company,\nor otherwise prohibited from disclosing the information to you by a contractual, legal or fiduciary obligation, (ii) was, is or becomes generally\navailable to the public other than as a result of a disclosure by you or your Representatives in breach of this Agreement, (iii) was, is or becomes\navailable to you on a non-confidential basis from a source other than the Company, provided that such source is not known by you to be bound by a\nconfidentiality agreement with the Company, or otherwise prohibited from disclosing the information to you by a contractual, legal or fiduciary\nobligation, or (iv) was or is developed by you without reliance on or reference to Evaluation Material.\nThe Parties hereby agree that the Evaluation Material will be used solely for the purpose of evaluating the Transaction between the Parties.\nWithout limiting the foregoing, each Party specifically agrees that the Evaluation Material shall not be used to obtain any competitive advantage at\nany time in the event a Transaction with the Company is not consummated. In addition, such information will be kept confidential by each Party\nexcept to the extent that disclosure of such information (i) has been consented to in writing by the disclosing Party, (ii) is required by law, regulation,\nsupervisory authority or other applicable judicial or governmental order, or (iii) is made to your Representatives who, in your reasonable opinion,\nneed to know such information for the purpose of evaluating the Transaction, provided that such Representatives be informed by the receiving Party\nof the confidential nature of the Evaluation Material, and agree to maintain the confidentiality thereof. In any event, each Party shall be responsible\nfor any breach of this agreement by its Representatives. To the extent the Agreement purports to be binding upon your subsidiaries, the Company\nagrees that any non-wholly owned company in which you or an investment fund managed by you may now or in the future have an investment will\nnot be deemed subject to or bound by the Agreement (as a Representative or otherwise) unless and only to the extent such company has been\nprovided the Evaluation Material by you, it being acknowledged and agreed that possession or knowledge of Evaluation Material by you or its\ndesignated representative(s) on such company's board or governing body shall not, solely for that reason, be deemed imputed to such company.\nNotwithstanding any provision of this Agreement to the\nLOGO\n1 Adler Drive\nEast Syracuse, NY 13057\nPhone: 315-437 -2065\nFax: 315-437 -6973\nwww.op-tech.us\ncontrary, no provision of this Agreement shall apply to any action taken independently by any of the portfolio companies of your affiliated\ninvestment funds so long as in each case such portfolio company has not received any Evaluation Material.\nIn addition, unless otherwise required by law, without the prior consent of the Parties, each Party will direct its Representatives not to disclose\nto any person (i) that the Evaluation Material has been made available, (ii) that discussions or negotiations are taking place concerning a Transaction\nor (iii) any terms, conditions or other facts with respect to the proposed Transaction, including the status thereof.\nIn the event that you or any of your Representatives are requested or required by judicial, legislative or regulatory process to disclose any\nEvaluation Material, you will, if permitted by law, provide the Company with prompt notice of any such request or requirement so that the Company\nmay seek, at its own expense, an appropriate protective order or other appropriate remedy, at its sole expense, and/or waive compliance with the\nterms of this agreement. In the event that (i) such protective order or other remedy is not obtained, or (ii) the Company in writing waives compliance\nwith the terms thereof, you may disclose only that portion of the Evaluation Material which is legally required, and you will exercise commercially\nreasonable efforts to obtain assurance that confidential treatment will be accorded to such Evaluation Material.\nIf either Party or any of their respective Representatives is requested or required (by oral questions, interrogatories, requests for information or\ndocuments, subpoena, civil investigative demand, or similar process) to disclose any Evaluation Material received by it or to make any other\ndisclosure, such party agrees to provide the disclosing Party of such Evaluation Material with prompt notice of each such request, to the extent\npracticable, so that the disclosing Party may seek, at its own expense, an appropriate protective order or waive compliance by the receiving Party\nwith the provisions of this agreement or both. If, absent the entry of a protective order or the receipt of a waiver under this agreement, the receiving\nParty or its Representatives are, in the opinion of its or its Representatives' counsel, as the case may be, legally compelled to disclose such\nEvaluation material under pain of liability for contempt or other censure or penalty, the receiving Party may disclose such information to the persons\nand to the extent required without liability under this agreement.\nNeither party shall be entitled to any special, consequential, indirect, punitive or exemplary damages, including loss of profits, as a result of any\nbreach of this Agreement by the other party, its affiliates or its Representatives, regardless of whether a claim is asserted under contract, tort or other\ntheory.\nUnless otherwise directed by the Company, all communications regarding a Transaction and all requests for additional information concerning\nthe Company will be submitted or directed solely to the Company to the attention of its Chief Executive Officer. You understand and acknowledge\nthat the Company shall not be deemed to make, any representations or warranties, express or implied, as to the accuracy or completeness of the\nEvaluation Material, and the Company shall not have any liability to you or any of its Representatives resulting from use thereof, except for fraud,\nwillful misconduct, or as specifically agreed to herein. Only those representations or warranties which are made by the Company in a final definitive\nagreement regarding a Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein, will have\nany legal effect.\nThis agreement shall be governed by and interpreted according to the laws of the State of New York (exclusive of such State's conflicts of laws\nrules) and subject to the exclusive jurisdiction of the federal or state courts located in Southern District of New York. This Agreement binds the\nParties only with respect to the matters expressly set forth herein. As such, unless and until a definitive agreement regarding a Transaction between\nthe Company and you has been executed, (i) neither the Company nor you will be under any legal obligation of any kind whatsoever to negotiate or\nconsummate a Transaction by virtue of this agreement or any other written or oral expression with respect thereto made by the Company or any\nother party, and (ii) you shall not have any claim whatsoever against the Company or any of their respective directors, officers, employees,\nstockholders, owners, agents or\nrepresentatives, arising out of any Transaction, except for fraud, willful misconduct, or as specifically agreed to herein.\nJFL's obligations under this agreement shall remain in effect for a period of twelve months from the date hereof, unless and until this agreement\nis terminated by the Company or is superseded by another agreement between you and the Company that concerns your use of the Evaluation\nMaterial.\nThis letter agreement shall constitute the full agreement by us with respect to the Evaluation Material submitted by the Company to us and shall\nsupersede any and all prior agreements and understandings relating thereto.\nThis agreement may be executed in counterparts. Please confirm that the foregoing is in accordance with your understanding of our agreement\nby signing and returning to us a copy of this letter.\nVery truly yours,\nOP-TECH Environmental Services, Inc. (the "Company")\nAccepted and agreed to as of the 25 day of January, 2013.\nBy: /s/ CHARLES B. MORGAN\nName: Charles B. Morgan\nTitle: CEO\nCompany: J.F. Lehman & Company\nBy: /s/ JAMES J. MICHAUD\nJames J. Michaud\nQuickLinks\nEXHIBIT (d)(3)\nCONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
+e3bb6bbcbe57fc224b274c6e2214843a.pdf	effective_date jurisdiction party term	EX-10.19 25 d319036dex1019.htm FORM OF NO COMPETITION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.19\nLOGO\nGLOBUS MEDICAL, INC.\nNO COMPETITION AND NON-DISCLOSURE\nAGREEMENT\nLOGO\nThis No Competition and Non-Disclosure Agreement (“NCND Agreement”) is made and entered into between Globus Medical, Inc., its subsidiaries\nand divisions including Algea Therapies, Inc. (collectively the “Company”) and\n(“Employee”) effective\n(“Effective Date”).\nACKNOWLEDGEMENTS & DEFINITIONS\nA. The Company is engaged in the design, development, production, distribution and sale of products and services related to the spine\n(“Products”).\nB. Employee performs services for and on behalf of the Company, either as a direct employee or through an independent service contract, for\nwhich Company compensates Employee, which may include services in connection with promotion or sale of Products. Company desires to\nemploy and/or continue to employ Employee, provided that as an express condition of such employment or continued employment, Employee\nenters into this NCND Agreement with Company. In the case of an Employee who is signing this NCND Agreement after the inception of\nhis/her employment relationship with the Company, Employee acknowledges that the Company has provided Employee with valuable\nconsideration in exchange for signing this NCND Agreement.\nC. The parties agree that this NCND Agreement is supported by valuable consideration, that mutual promises and obligations have been\nundertaken by the parties to it, and that this NCND Agreement is entered into voluntarily by the parties.\nD. For purposes of this NCND Agreement the Employee’s performance of services and receipt of compensation from the Company will be\ndefined as the Employment Agreement (the “Employment Agreement”) between the Employee and the Company, whether or not a written\nemployment agreement exists between the Employee and the Company governing said services and compensation.\nE. For purposes of this NCND Agreement, the term of the Employment Agreement (“Employment Agreement Term”) shall be defined as the time\nperiod during which Employee performs services for or on behalf of the Company.\n1\nF. For purposes of this NCND Agreement, the NCND Territory (“NCND Territory”) shall be defined as any geographic area assigned to the\nEmployee within the most recent 12 months of the Employment Agreement Term. In the event that the Employee has been assigned certain\nHospitals (as defined below) and/ or Medical Personnel (as defined below) and not a geographic area within the most recent 12 months of the\nEmployee Agreement Term, the NCND Territory shall be defined as any Hospitals and/or Medical Personnel to which the Employee was\nassigned within the most recent 12 months of the Employee Agreement Term. In the event the Employee has not been assigned to specific\nHospitals and/or Medical Personnel or to a specific geographic region within the most recent 12 months of the Employee Agreement Term, the\nNCND Territory shall be defined as worldwide.\nG. For purposes of this NCND Agreement, Medical Personnel (“Medical Personnel”) shall be defined as orthopedic surgeons, neurosurgeons,\nphysicians, nurses and other medical personnel involved in the implantation, purchase or other handling and usage of the Products, including\nbut not limited to employees, agents or persons who control, direct or influence purchasing decisions of any Hospitals.\nH. For purposes of this NCND Agreement, Hospitals (“Hospitals”) shall be defined as hospitals, surgery centers, medical centers and other health\ncare facilities that purchase Products and the location at which Medical Personnel perform services related to the purchase, implantation or\nother handling and usage of the Products.\nI. Employee will have access to confidential, proprietary and trade secret information (“Confidential Information”) belonging to the Company,\nincluding Confidential Information developed by the Employee (see Section 2.2 below). Such Confidential Information includes, but is not\nlimited to: customer lists; product specifications and attributes; pricing information; technology development plans; forecasts; financial\ninformation; sales strategies and techniques; business records; models; prototypes; schematics; manuals; handbooks; literature; vendors;\nbusiness terms between Company and suppliers; business terms between Company and Hospitals; business terms between Company and\ndistributors; business terms between Company and Medical Personnel. Employee acknowledges that Company owns such Confidential\nInformation and that Employee has no ownership interest in such Confidential Information. Furthermore, Employee acknowledges that the\ndisclosure of such Confidential Information to unauthorized third parties, including Competitive Companies (as defined below) would cause\ngreat and irreparable harm to the Company. Furthermore, Employee acknowledges that Company has a legitimate business interest in the\nprotection of the Confidential Information.\nNO COMPETITION & NO SOLICITATION COVENANT\n1.1 Competitive Activity. For purposes of this NCND Agreement, Competitive Activity (“Competitive Activity”) shall be defined as participation\nin, performance of services for, employment by, ownership of any interest in, or assistance, promotion or organization of, any Competing\nCompany. “Competing Company” is defined as any person, partnership, corporation, firm, limited liability company, association or other\nbusiness entity, other than Globus, that manufactures, designs, develops, sells, markets or distributes products or services\n2\nused in spine surgery; provided that the purchase for investment of not more than five (5%) percent of the total capital stock of such\nCompeting Company whose stock is publicly traded shall not constitute a Competitive Activity.\n1.2 No Competition Period. For purposes of this NCND Agreement, the No Competition Period (“No Competition Period”) shall be defined as the\ntime period encompassing both the Employment Agreement Term and the 12-month period immediately after the termination of the\nEmployment Agreement.\n1.3 No Competition or Solicitation Covenant. During the No Competition Period, Employee agrees not to engage in any Competitive Activity for\nany Competing Company.\nIf, during the last year of employment with Company, Employee was engaged exclusively in non-management field sales activities including\nselling, soliciting the sale or supporting the sale of Products through contact with Hospitals or Medical Personnel, then Employee’s covenants\nunder this paragraph are as follows: Employee agrees not to engage in any Competitive Activity with any Hospitals or Medical Personnel\nduring the Employment Agreement Term. In addition, Employee agrees not to engage in any Competitive Activity with any Hospitals or\nMedical Personal during the No Competition Period in the NCND Territory. Furthermore, during the No Competition period, Employee agrees\nnot to directly or indirectly, either for the Employee’s benefit or the benefit of another entity, solicit, call on, interfere with, attempt to divert,\nentice away, sell to or market to any Hospital in the NCND Territory, or to any Medical Personnel in the NCND Territory who perform any\nservices related to the implantation or other handling and usage of the Products (regardless of whether such services are also provided by the\nMedical Personnel outside the NCND Territory). By way of example, if a physician performs services at two different Hospitals, one within\nand one outside the NCND Territory, the restrictions in this paragraph prohibit the Employee from directly or indirectly soliciting, calling on,\ninterfering with, or attempting to divert, entice away, sell to or market to the physician at either the Hospital within the NCND Territory or the\nHospital outside the NCND Territory.\n1.4 No Solicitation of Company’s Employees or Employees. During the No Competition Period, Employee agrees not to directly or indirectly,\neither for the Employee’s benefit or the benefit of another entity, employ or offer to employ in any capacity, contact or recommend for\nemployment with a Competing Company, contact or recommend for the purposes of entering into a contractual relationship with a Competing\nCompany, or solicit, call on, interfere with, or attempt to divert, or entice away, any individuals who are or were employees, independent\ncontractors, representatives or employees of the Company or of any of the Company’s distributors at any time within the preceding 12 months.\nNON-DISCLOSURE COVENANT\n2.1 Use of Confidential Information. Both during the Employment Agreement Term and after the termination of the Employment Agreement,\nEmployee agrees not to use any Confidential Information except as required to perform its obligations as an Employee of the Company, or\ndisclose to any individual, corporation, partnership or other entity any Confidential Information belonging to the Company, unless Employee is\nrequired to make such disclosure pursuant to\n3\njudicial process. Notwithstanding the foregoing, immediately upon receipt of subpoena or other judicial process requiring disclosure of\nConfidential Information belonging to Company, Employee shall deliver written notice and a complete copy of such process to the Company\nand before responding to such process, allow the Company to take such action as they may deem appropriate under the circumstances to\nprotect their interests in the Confidential Information requested for disclosure.\n2.2 Development of Intellectual Property. Employee may make, discover or develop inventions, ideas, trade secrets, financial materials, computer\nprograms, discoveries, developmental improvements, know-how, processes and devices related to or used in the conduct of Employee’s\nperformance of services for and on behalf of the Company (“Developments”). The Employee agrees to disclose fully and promptly to the\nCompany any said Developments. Furthermore, Employee agrees that the Company is the sole and exclusive owner of said Developments; the\nEmployee retains no ownership in said Developments; and said Developments become part of the Company’s Confidential Information for\npurposes of this NCND Agreement. Company and Employee agree that if the Developments or any portion thereof are copyrightable, it shall\nbe deemed “work for hire” as such term is defined in the U.S. Copyright Act. The Employee shall execute and deliver to the Company any and\nall licenses, applications, assignments and other documents and take any and all actions that the Company may deem necessary or desirable to\nprotect Company’s ownership rights in said Developments.\n2.3 Handling and Return of Confidential Information. Employee shall not physically or electronically remove or make copies of any Confidential\nInformation owned by the Company, except as required by the Employee to properly fulfill their responsibilities as an Employee of the\nCompany. Upon the termination of the Employment Agreement, Employee shall immediately return to the Company any and all Confidential\nInformation in their possession, including any and all copies of said Confidential Information.\n2.4 Fiduciary Duties. Employee agrees that Employee shall treat all Confidential Information entrusted to Employee by Company as a fiduciary,\nand Employee accepts and undertakes all the obligations of a fiduciary, including good faith, trust, confidence and candor, to maintain, protect\nand develop Confidential Information for the benefit of Company.\n2.5 Confidential Information of Others. Employee hereby represents and warrants to the Company that Employee is not bound by any agreement,\nunderstanding or restriction, (including, but not limited to any covenant restricting competition or agreement related to the confidential and\nproprietary information and trade secrets of any third party), that is inconsistent with or prevents or limits the Employee’s ability to fulfill\nhis/her obligations under the Employment Agreement. Furthermore, Employee hereby represents and warrants to the Company that the\nexecution and performance of the Employment Agreement will not result in or constitute a breach of any term or condition of any other\nagreement the Employee is bound by. In performance of his/her duties and obligations under the Employment Agreement, Employee agrees\nnot to disclose the confidential and proprietary information or trade secrets of any third party to the Company.\n4\nREMEDIES\n3.1 Right to Specific Relief. Company and Employee recognize and acknowledge that the limitations set forth in this NCND Agreement are\nproperly required for the adequate protection of the business of the Company, and that violation of any of the provisions of this NCND\nAgreement will cause irreparable injury for which money damages are neither adequate nor ascertainable. Accordingly, Company shall have\nthe right to have the provisions of this NCND Agreement specifically enforced by a court of competent jurisdiction, in addition to any other\nremedies which Company may have in equity or at law, and Employee hereby consents to the entry of an injunction or other similar relief\nwithout the necessity of posting a bond or other financial insurance. Furthermore, Company shall be entitled to recover its costs and expenses\n(including reasonable attorneys’ fees) incurred in enforcing its rights under this NCND Agreement.\nIf a dispute arises under this NCND Agreement, Employee shall have a duty to immediately notify the Company of the name, address and\ntelephone number of Employee’s legal counsel. In the event Employee fails to provide this information, Employee agrees that the Company\nmay seek a temporary restraining order to enforce the provisions of this NCND Agreement on an ex parte basis. Employee acknowledges that\nthe Company’s recovery of damages will not be an adequate means to redress a breach of this NCND Agreement. Nothing contained in this\nparagraph, however, shall prohibit the Company from pursuing any remedies in addition to injunctive relief, including recovery of damages.\n3.2 Right to Recover Attorneys’ Fees and Costs. (a) If the Company seeks a restraining order, an injunction or any other form of equitable relief,\nand recovers any such relief, Company shall be entitled to recover its reasonable attorneys’ fees, court costs, and other costs incurred obtaining\nthat relief (even if other relief sought is denied). (b) If the Company obtains a final judgment of a court of competent jurisdiction, pursuant to\nwhich Employee is determined to have breached his/her obligations under this Agreement, the Company shall be entitled to recover, in\naddition to any award of damages, its reasonable attorneys’ fees, costs, and expenses incurred by the Company in obtaining such judgment.\nAny relief awarded under this subparagraph (b) shall be in addition to any other relief awarded under subparagraph (a). The parties agree that\nthe provisions of this paragraph are reasonable and necessary.\nOTHER MATTERS\n4.1 Condition to Seeking Subsequent Employment. Employee agrees to show a copy of this NCND Agreement to any Competing Company with\nwhom Employee interviews during the Employment Agreement Term or with whom Employee interviews within the 12 month period\nimmediately following the termination of the Employment Agreement Term.\n4.2 Entire Agreement. This NCND Agreement constitutes the entire agreement between the parties relating to the specific matters covered by this\nNCND Agreement and supersedes all prior agreements, whether written or oral. No modifications or waiver of any part of this NCND\nAgreement shall be binding upon either party unless in writing.\n5\n4.3 Waiver. The waiver of a breach of any provision of this NCND Agreement by any party shall not operate or be construed as a waiver of any\nprovision of this NCND Agreement or consent of any subsequent breach.\n4.4 Severability. If any term or provision of this NCND Agreement shall be determined invalid or unenforceable to any extent or in any\napplication, then the remainder of this NCND Agreement shall not be affected thereby, and such term or provision shall be deemed modified to\nthe minimum extent necessary to make it consistent with applicable law, except to such extent or in such application, shall not be affected\nthereby, every term and provision of this NCND Agreement as so modified if necessary, shall be enforced to the fullest extent and in the\nbroadest application permitted by law.\n4.5 Governing Law. In order to maintain uniformity in the interpretation of this NCND Agreement the parties have expressly agreed that this\nNCND Agreement, the parties’ performance hereunder and the relationship between them shall be governed by, construed and enforced in\naccordance with the laws of the Commonwealth of Pennsylvania, without regard to the principles thereof regarding conflicts of laws.\n4.6 Transfer or Assignment; Binding Nature. Company may transfer or assign its rights and obligations pursuant to this NCND Agreement to its\nsuccessors or assigns. Employee shall not assign any of his or her rights or delegate any of his or her duties or obligations under this NCND\nAgreement. This NCND Agreement shall be binding upon and inure to the benefit of the parties hereto and to the Company’s successors and\nassigns.\n4.7 Tolling. Employee understands and agrees that in the event of any breach of his/her obligations under paragraphs 1.3 or 1.4 of this NCND\nAgreement, the No Competition Period shall be automatically tolled for the amount of time the violation continues.\nIN WITNESS WHEREOF, the undersigned have executed this NCND AGREEMENT, intending to be bound under their seals, effective as of\nthe day and year set forth above.\nCOMPANY:\nEMPLOYEE:\nBy:\nBy:\nDATE:\nDATE:\n6	EX-10.19 25 d319036dex1019.htm FORM OF NO COMPETITION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.19\nLOGO GLOBUS MEDICAL, INC.\nNO COMPETITION AND NON-DISCLOSURE ».LOGO\nAGREEMENT\nThis No Competition and Non-Disclosure Agreement (“NCND Agreement”) is made and entered into between Globus Medical, Inc., its subsidiaries\nand divisions including Algea Therapies, Inc. (collectively the “Company”) and (“Employee”) effective (“Effective Date”).\nACKNOWLEDGEMENTS & DEFINITIONS\nA. The Company is engaged in the design, development, production, distribution and sale of products and services related to the spine\n(“Products™).\nB.  Employee performs services for and on behalf of the Company, either as a direct employee or through an independent service contract, for\nwhich Company compensates Employee, which may include services in connection with promotion or sale of Products. Company desires to\nemploy and/or continue to employ Employee, provided that as an express condition of such employment or continued employment, Employee\nenters into this NCND Agreement with Company. In the case of an Employee who is signing this NCND Agreement after the inception of\nhis/her employment relationship with the Company, Employee acknowledges that the Company has provided Employee with valuable\nconsideration in exchange for signing this NCND Agreement.\nC.  The parties agree that this NCND Agreement is supported by valuable consideration, that mutual promises and obligations have been\nundertaken by the parties to it, and that this NCND Agreement is entered into voluntarily by the parties.\nD. For purposes of this NCND Agreement the Employee’s performance of services and receipt of compensation from the Company will be\ndefined as the Employment Agreement (the “Employment Agreement”) between the Employee and the Company, whether or not a written\nemployment agreement exists between the Employee and the Company governing said services and compensation.\nE.  For purposes of this NCND Agreement, the term of the Employment Agreement (“Employment Agreement Term”) shall be defined as the time\nperiod during which Employee performs services for or on behalf of the Company.\n1\n1.1\nFor purposes of this NCND Agreement, the NCND Territory (“NCND Territory™) shall be defined as any geographic area assigned to the\nEmployee within the most recent 12 months of the Employment Agreement Term. In the event that the Employee has been assigned certain\nHospitals (as defined below) and/ or Medical Personnel (as defined below) and not a geographic area within the most recent 12 months of the\nEmployee Agreement Term, the NCND Territory shall be defined as any Hospitals and/or Medical Personnel to which the Employee was\nassigned within the most recent 12 months of the Employee Agreement Term. In the event the Employee has not been assigned to specific\nHospitals and/or Medical Personnel or to a specific geographic region within the most recent 12 months of the Employee Agreement Term, the\nNCND Territory shall be defined as worldwide.\nFor purposes of this NCND Agreement, Medical Personnel (“Medical Personnel”) shall be defined as orthopedic surgeons, neurosurgeons,\nphysicians, nurses and other medical personnel involved in the implantation, purchase or other handling and usage of the Products, including\nbut not limited to employees, agents or persons who control, direct or influence purchasing decisions of any Hospitals.\nFor purposes of this NCND Agreement, Hospitals (“Hospitals”) shall be defined as hospitals, surgery centers, medical centers and other health\ncare facilities that purchase Products and the location at which Medical Personnel perform services related to the purchase, implantation or\nother handling and usage of the Products.\nEmployee will have access to confidential, proprietary and trade secret information (“Confidential Information”) belonging to the Company,\nincluding Confidential Information developed by the Employee (see Section 2.2 below). Such Confidential Information includes, but is not\nlimited to: customer lists; product specifications and attributes; pricing information; technology development plans; forecasts; financial\ninformation; sales strategies and techniques; business records; models; prototypes; schematics; manuals; handbooks; literature; vendors;\nbusiness terms between Company and suppliers; business terms between Company and Hospitals; business terms between Company and\ndistributors; business terms between Company and Medical Personnel. Employee acknowledges that Company owns such Confidential\nInformation and that Employee has no ownership interest in such Confidential Information. Furthermore, Employee acknowledges that the\ndisclosure of such Confidential Information to unauthorized third parties, including Competitive Companies (as defined below) would cause\ngreat and irreparable harm to the Company. Furthermore, Employee acknowledges that Company has a legitimate business interest in the\nprotection of the Confidential Information.\nNO COMPETITION & NO SOLICITATION COVENANT\nCompetitive Activity. For purposes of this NCND Agreement, Competitive Activity (“Competitive Activity”) shall be defined as participation\nin, performance of services for, employment by, ownership of any interest in, or assistance, promotion or organization of, any Competing\nCompany. “Competing Company” is defined as any person, partnership, corporation, firm, limited liability company, association or other\nbusiness entity, other than Globus, that manufactures, designs, develops, sells, markets or distributes products or services\n2\n1.2\n1.3\n1.4\n2.1\nused in spine surgery; provided that the purchase for investment of not more than five (5%) percent of the total capital stock of such\nCompeting Company whose stock is publicly traded shall not constitute a Competitive Activity.\nNo Competition Period. For purposes of this NCND Agreement, the No Competition Period (“No Competition Period”) shall be defined as the\ntime period encompassing both the Employment Agreement Term and the 12-month period immediately after the termination of the\nEmployment Agreement.\nNo Competition or Solicitation Covenant. During the No Competition Period, Employee agrees not to engage in any Competitive Activity for\nany Competing Company.\nIf, during the last year of employment with Company, Employee was engaged exclusively in non-management field sales activities including\nselling, soliciting the sale or supporting the sale of Products through contact with Hospitals or Medical Personnel, then Employee’s covenants\nunder this paragraph are as follows: Employee agrees not to engage in any Competitive Activity with any Hospitals or Medical Personnel\nduring the Employment Agreement Term. In addition, Employee agrees not to engage in any Competitive Activity with any Hospitals or\nMedical Personal during the No Competition Period in the NCND Territory. Furthermore, during the No Competition period, Employee agrees\nnot to directly or indirectly, either for the Employee’s benefit or the benefit of another entity, solicit, call on, interfere with, attempt to divert,\nentice away, sell to or market to any Hospital in the NCND Territory, or to any Medical Personnel in the NCND Territory who perform any\nservices related to the implantation or other handling and usage of the Products (regardless of whether such services are also provided by the\nMedical Personnel outside the NCND Territory). By way of example, if a physician performs services at two different Hospitals, one within\nand one outside the NCND Territory, the restrictions in this paragraph prohibit the Employee from directly or indirectly soliciting, calling on,\ninterfering with, or attempting to divert, entice away, sell to or market to the physician at either the Hospital within the NCND Territory or the\nHospital outside the NCND Territory.\neither for the Employee’s benefit or the benefit of another entity, employ or offer to employ in any capacity, contact or recommend for\nemployment with a Competing Company, contact or recommend for the purposes of entering into a contractual relationship with a Competing\nCompany, or solicit, call on, interfere with, or attempt to divert, or entice away, any individuals who are or were employees, independent\ncontractors, representatives or employees of the Company or of any of the Company’s distributors at any time within the preceding 12 months.\nNON-DISCLOSURE COVENANT\nUse of Confidential Information. Both during the Employment Agreement Term and after the termination of the Employment Agreement,\nEmployee agrees not to use any Confidential Information except as required to perform its obligations as an Employee of the Company, or\ndisclose to any individual, corporation, partnership or other entity any Confidential Information belonging to the Company, unless Employee is\nrequired to make such disclosure pursuant to\n2.2\n2.3\n24\n2.5\njudicial process. Notwithstanding the foregoing, immediately upon receipt of subpoena or other judicial process requiring disclosure of\nConfidential Information belonging to Company, Employee shall deliver written notice and a complete copy of such process to the Company\nand before responding to such process, allow the Company to take such action as they may deem appropriate under the circumstances to\nprotect their interests in the Confidential Information requested for disclosure.\nDevelopment of Intellectual Property. Employee may make, discover or develop inventions, ideas, trade secrets, financial materials, computer\nprograms, discoveries, developmental improvements, know-how, processes and devices related to or used in the conduct of Employee’s\nperformance of services for and on behalf of the Company (“Developments”). The Employee agrees to disclose fully and promptly to the\nCompany any said Developments. Furthermore, Employee agrees that the Company is the sole and exclusive owner of said Developments; the\nEmployee retains no ownership in said Developments; and said Developments become part of the Company’s Confidential Information for\npurposes of this NCND Agreement. Company and Employee agree that if the Developments or any portion thereof are copyrightable, it shall\nbe deemed “work for hire” as such term is defined in the U.S. Copyright Act. The Employee shall execute and deliver to the Company any and\nall licenses, applications, assignments and other documents and take any and all actions that the Company may deem necessary or desirable to\nprotect Company’s ownership rights in said Developments.\nHandling and Return of Confidential Information. Employee shall not physically or electronically remove or make copies of any Confidential\nInformation owned by the Company, except as required by the Employee to properly fulfill their responsibilities as an Employee of the\nCompany. Upon the termination of the Employment Agreement, Employee shall immediately return to the Company any and all Confidential\nInformation in their possession, including any and all copies of said Confidential Information.\nFiduciary Duties. Employee agrees that Employee shall treat all Confidential Information entrusted to Employee by Company as a fiduciary,\nand Employee accepts and undertakes all the obligations of a fiduciary, including good faith, trust, confidence and candor, to maintain, protect\nand develop Confidential Information for the benefit of Company.\n \nConfidential Information of Others. Employee hereby represents and warrants to the Company that Employee is not bound by any agreement,\nunderstanding or restriction, (including, but not limited to any covenant restricting competition or agreement related to the confidential and\nproprietary information and trade secrets of any third party), that is inconsistent with or prevents or limits the Employee’s ability to fulfill\nhis/her obligations under the Employment Agreement. Furthermore, Employee hereby represents and warrants to the Company that the\nexecution and performance of the Employment Agreement will not result in or constitute a breach of any term or condition of any other\nagreement the Employee is bound by. In performance of his/her duties and obligations under the Employment Agreement, Employee agrees\nnot to disclose the confidential and proprietary information or trade secrets of any third party to the Company.\n4\n3.1\n3.2\n4.1\n4.2\nREMEDIES\nRight to Specific Relief. Company and Employee recognize and acknowledge that the limitations set forth in this NCND Agreement are\nproperly required for the adequate protection of the business of the Company, and that violation of any of the provisions of this NCND\nAgreement will cause irreparable injury for which money damages are neither adequate nor ascertainable. Accordingly, Company shall have\nthe right to have the provisions of this NCND Agreement specifically enforced by a court of competent jurisdiction, in addition to any other\nremedies which Company may have in equity or at law, and Employee hereby consents to the entry of an injunction or other similar relief\nwithout the necessity of posting a bond or other financial insurance. Furthermore, Company shall be entitled to recover its costs and expenses\n(including reasonable attorneys’ fees) incurred in enforcing its rights under this NCND Agreement.\nIf a dispute arises under this NCND Agreement, Employee shall have a duty to immediately notify the Company of the name, address and\ntelephone number of Employee’s legal counsel. In the event Employee fails to provide this information, Employee agrees that the Company\nmay seek a temporary restraining order to enforce the provisions of this NCND Agreement on an ex parte basis. Employee acknowledges that\nthe Company’s recovery of damages will not be an adequate means to redress a breach of this NCND Agreement. Nothing contained in this\nparagraph, however, shall prohibit the Company from pursuing any remedies in addition to injunctive relief, including recovery of damages.\nRight to Recover Attorneys’ Fees and Costs. (a) If the Company seeks a restraining order, an injunction or any other form of equitable relief,\nand recovers any such relief, Company shall be entitled to recover its reasonable attorneys’ fees, court costs, and other costs incurred obtaining\nthat relief (even if other relief sought is denied). (b) If the Company obtains a final judgment of a court of competent jurisdiction, pursuant to\nwhich Employee is determined to have breached his/her obligations under this Agreement, the Company shall be entitled to recover, in\naddition to any award of damages, its reasonable attorneys’ fees, costs, and expenses incurred by the Company in obtaining such judgment.\nAny relief awarded under this subparagraph (b) shall be in addition to any other relief awarded under subparagraph (a). The parties agree that\nthe provisions of this paragraph are reasonable and necessary.\nOTHER MATTERS\nwhom Employee interviews during the Employment Agreement Term or with whom Employee interviews within the 12 month period\nimmediately following the termination of the Employment Agreement Term.\nEntire Agreement. This NCND Agreement constitutes the entire agreement between the parties relating to the specific matters covered by this\nNCND Agreement and supersedes all prior agreements, whether written or oral. No modifications or waiver of any part of this NCND\nAgreement shall be binding upon either party unless in writing.\n \n4.3\n4.4\n4.5\n4.6\n4.7\nWaiver. The waiver of a breach of any provision of this NCND Agreement by any party shall not operate or be construed as a waiver of any\nprovision of this NCND Agreement or consent of any subsequent breach.\nSeverability. If any term or provision of this NCND Agreement shall be determined invalid or unenforceable to any extent or in any\napplication, then the remainder of this NCND Agreement shall not be affected thereby, and such term or provision shall be deemed modified to\nthe minimum extent necessary to make it consistent with applicable law, except to such extent or in such application, shall not be affected\nthereby, every term and provision of this NCND Agreement as so modified if necessary, shall be enforced to the fullest extent and in the\nbroadest application permitted by law.\nGoverning Law. In order to maintain uniformity in the interpretation of this NCND Agreement the parties have expressly agreed that this\nNCND Agreement, the parties’ performance hereunder and the relationship between them shall be governed by, construed and enforced in\naccordance with the laws of the Commonwealth of Pennsylvania, without regard to the principles thereof regarding conflicts of laws.\nTransfer or Assignment; Binding Nature. Company may transfer or assign its rights and obligations pursuant to this NCND Agreement to its\nsuccessors or assigns. Employee shall not assign any of his or her rights or delegate any of his or her duties or obligations under this NCND\nAgreement. This NCND Agreement shall be binding upon and inure to the benefit of the parties hereto and to the Company’s successors and\nassigns.\nTolling. Employee understands and agrees that in the event of any breach of his/her obligations under paragraphs 1.3 or 1.4 of this NCND\nAgreement, the No Competition Period shall be automatically tolled for the amount of time the violation continues.\nIN WITNESS WHEREOF, the undersigned have executed this NCND AGREEMENT, intending to be bound under their seals, effective as of\nthe day and year set forth above.\nCOMPANY: EMPLOYEE:\nBy: By:\nDATE: DATE:	EX-10.19 25 d319036dex1019.ht FORM OF NO COMPETITION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.19\nLOGO\nGLOBUS MEDICAL, INC.\nNO COMPETITION AND NON-DISCLOSURE\nALOGO\nAGREEMENT\nThis No Competition and Non-Disclosure Agreement ("NCND Agreement") is made and entered into between Globus Medical, Inc., its subsidiaries\nand divisions including Algea Therapies, Inc. (collectively the "Company") and\n("Employee") effective\n("Effective Date").\nACKNOWLEDGEMENTS & DEFINITIONS\nA.\nThe Company is engaged in the design, development, production, distribution and sale of products and services related to the spine\n("Products").\nB. Employee performs services for and on behalf of the Company, either as a direct employee or through an independent service contract, for\nwhich Company compensates Employee, which may include services in connection with promotion or sale of Products. Company desires to\nemploy and/or continue to employ Employee, provided that as an express condition of such employment or continued employment, Employee\nenters into this NCND Agreement with Company. In the case of an Employee who is signing this NCND Agreement after the inception of\nhis/her employment relationship with the Company, Employee acknowledges that the Company has provided Employee with valuable\nconsideration in exchange for signing this NCND Agreement.\nC.\nThe parties agree that this NCND Agreement is supported by valuable consideration, that mutual promises and obligations have been\nundertaken by the parties to it, and that this NCND Agreement is entered into voluntarily by the parties.\nD.\nFor purposes of this NCND Agreement the Employee's performance of services and receipt of compensation from the Company will be\ndefined as the Employment Agreement (the "Employment Agreement") between the Employee and the Company, whether or not a written\nemployment agreement exists between the Employee and the Company governing said services and compensation.\nE.\nFor purposes of this NCND Agreement, the term of the Employment Agreement ("Employment Agreement Term") shall be defined as the time\nperiod during which Employee performs services for or on behalf of the Company.\n1\nF.\nFor purposes of this NCND Agreement, the NCND Territory ("NCND Territory") shall be defined as any geographic area assigned to the\nEmployee within the most recent 12 months of the Employment Agreement Term. In the event that the Employee has been assigned certain\nHospitals (as defined below) and/ or Medical Personnel (as defined below) and not a geographic area within the most recent 12 months of the\nEmployee Agreement Term, the NCND Territory shall be defined as any Hospitals and/or Medical Personnel to which the Employee was\nassigned within the most recent 12 months of the Employee Agreement Term. In the event the Employee has not been assigned to specific\nHospitals and/or Medical Personnel or to a specific geographic region within the most recent 12 months of the Employee Agreement Term, the\nNCND Territory shall be defined as worldwide.\nG.\nFor purposes of this NCND Agreement, Medical Personnel ("Medical Personnel") shall be defined as orthopedic surgeons, neurosurgeons,\nphysicians, nurses and other medical personnel involved in the implantation, purchase or other handling and usage of the Products, including\nbut\nnot limited to employees, agents or persons who control, direct or influence purchasing decisions of any Hospitals.\nH.\nFor purposes of this NCND Agreement, Hospitals ("Hospitals") shall be defined as hospitals, surgery centers, medical centers and other health\ncare facilities that purchase Products and the location at which Medical Personnel perform services related to the purchase, implantation or\nother handling and usage of the Products.\nI.\nEmployee will have access to confidential, proprietary and trade secret information ("Confidential Information") belonging to the Company,\nincluding Confidential Information developed by the Employee (see Section 2.2 below). Such Confidential Information includes, but is not\nlimited to: customer lists; product specifications and attributes; pricing information; technology development plans; forecasts; financial\ninformation; sales strategies and techniques; business records; models; prototypes; schematics; manuals; handbooks; literature; vendors;\nbusiness terms between Company and suppliers; business terms between Company and Hospitals; business terms between Company and\ndistributors; business terms between Company and Medical Personnel. Employee acknowledges that Company owns such Confidential\nInformation and that Employee has no ownership interest in such Confidential Information. Furthermore, Employee acknowledges that the\ndisclosure of such Confidential Information to unauthorized third parties, including Competitive Companies (as defined below) would cause\ngreat and irreparable harm to the Company. Furthermore, Employee acknowledges that Company has a legitimate business interest in the\nprotection of the Confidential Information.\nNO COMPETITION & NO SOLICITATION COVENANT\n1.1 Competitive Activity.. For purposes of this NCND Agreement, Competitive Activity ("Competitive Activity") shall be defined as participation\nin, performance of services for, employment by, ownership of any interest in, or assistance, promotion or organization of, any Competing\nCompany. "Competing Company" is defined as any person, partnership, corporation, firm, limited liability company, association or other\nbusiness entity, other than Globus, that manufactures, designs, develops, sells, markets or distributes products or services\n2\nused in spine surgery; provided that the purchase for investment of not more than five (5%) percent of the total capital stock of such\nCompeting Company whose stock is publicly traded shall not constitute a Competitive Activity.\n1.2\nNo Competition Period. For purposes of this NCND Agreement, the No Competition Period ("No Competition Period") shall be defined as the\ntime period encompassing both the Employment Agreement Term and the 12-month period immediately after the termination of the\nEmployment Agreement.\n1.3 No Competition or Solicitation Covenant. During the No Competition Period, Employee agrees not to engage in any Competitive Activity for\nany Competing Company.\nIf,\nduring the last year of employment with Company, Employee was engaged exclusively in non-management field sales activities including\nselling, soliciting the sale or supporting the sale of Products through contact with Hospitals or Medical Personnel, then Employee's covenants\nunder this paragraph are as follows: Employee agrees not to engage in any Competitive Activity with any Hospitals or Medical Personnel\nduring the Employment Agreement Term. In addition, Employee agrees not to engage in any Competitive Activity with any Hospitals or\nMedical Personal during the No Competition Period in the NCND Territory. Furthermore, during the No Competition period, Employee agrees\nnot to directly or indirectly, either for the Employee's benefit or the benefit of another entity, solicit, call on, interfere with, attempt to divert,\nentice away, sell to or market to any Hospital in the NCND Territory, or to any Medical Personnel in the NCND Territory who perform any\nservices related to the implantation or other handling and usage of the Products (regardless of whether such services are also provided by the\nMedical Personnel outside the NCND Territory). By way of example, if a physician performs services at two different Hospitals, one within\nand one outside the NCND Territory, the restrictions in this paragraph prohibit the Employee from directly or indirectly soliciting, calling on,\ninterfering with, or attempting to divert, entice away, sell to or market to the physician at either the Hospital within the NCND Territory or the\nHospital outside the NCND Territory.\n1.4\nNo Solicitation of Company's Employees or Employees. During the No Competition Period, Employee agrees not to directly or indirectly,\neither for the Employee's benefit or the benefit of another entity, employ or offer to employ in any capacity, contact or recommend for\nemployment with a Competing Company, contact or recommend for the purposes of entering into a contractual relationship with a Competing\nCompany, or solicit, call on, interfere with, or attempt to divert, or entice away, any individuals who are or were employees, independent\ncontractors, representatives or employees of the Company or of any of the Company's distributors at any time within the preceding 12 months.\nNON-DISCLOSURE COVENANT\n2.1 Use of Confidential Information. Both during the Employment Agreement Term and after the termination of the Employment Agreement,\nEmployee agrees not to use any Confidential Information except as required to perform its obligations as an Employee of the Company, or\ndisclose to any individual, corporation, partnership or other entity any Confidentia Information belonging to the Company, unless Employee is\nrequired to make such disclosure pursuant to\n3\njudicial process. Notwithstanding the foregoing, immediately upon receipt of subpoena or other judicial process requiring disclosure of\nConfidential Information belonging to Company, Employee shall deliver written notice and a complete copy of such process to the Company\nand before responding to such process, allow the Company to take such action as they may deem appropriate under the circumstances to\nprotect their interests in the Confidential Information requested for disclosure.\n2.2\nDevelopment of Intellectual Property.. Employee may make, discover or develop inventions, ideas, trade secrets, financial materials, computer\nprograms, discoveries, developmental improvements, know-how, processes and devices related to or used in the conduct of Employee's\nperformance of services for and on behalf of the Company ("Developments"). The Employee agrees to disclose fully and promptly to the\nCompany any said Developments. Furthermore, Employee agrees that the Company is the sole and exclusive owner of said Developments; the\nEmployee retains no ownership in said Developments; and said Developments become part of the Company's Confidential Information for\npurposes of this NCND Agreement. Company and Employee agree that if the Developments or any portion thereof are copyrightable, it shall\nbe\ndeemed "'work for hire" as such term is defined in the U.S. Copyright Act. The Employee shall execute and deliver to the Company any and\nall licenses, applications, assignments and other documents and take any and all actions that the Company may deem necessary or desirable\nto\nprotect Company's ownership rights in said Developments.\n2.3\nHandling and Return of Confidential Information. Employee shall not physically or electronically remove or make copies of any Confidential\nInformation owned by the Company, except as required by the Employee to properly fulfill their responsibilities as an Employee of the\nCompany. Upon the termination of the Employment Agreement, Employee shall immediately return to the Company any and all Confidential\nInformation in their possession, including any and all copies of said Confidential Information.\n2.4 Fiduciary Duties. Employee agrees that Employee shall treat all Confidential Information entrusted to Employee by Company as a fiduciary,\nand Employee accepts and undertakes all the obligations of a fiduciary, including good faith, trust, confidence and candor, to maintain, protect\nand develop Confidential Information for the benefit of Company.\n2.5\nConfidential Information of Others. Employee hereby represents and warrants to the Company that Employee is not bound by any agreement,\nunderstanding or restriction, (including, but not limited to any covenant restricting competition or agreement related to the confidential and\nproprietary information and trade secrets of any third party), that is inconsistent with or prevents or limits the Employee's ability to fulfill\nhis/her obligations under the Employment Agreement. Furthermore, Employee hereby represents and warrants to the Company that the\nexecution and performance of the Employment Agreement will not result in or constitute a breach of any term or condition of any other\nagreement the Employee is bound by. In performance of his/her duties and obligations under the Employment Agreement, Employee agrees\nnot to disclose the confidential and proprietary information or trade secrets of any third party to the Company.\n4\nREMEDIES\n3.1 Right to Specific Relief. Company and Employee recognize and acknowledge that the limitations set forth in this NCND Agreement are\nproperly required for the adequate protection of the business of the Company, and that violation of any of the provisions of this NCND\nAgreement will cause irreparable injury for which money damages are neither adequate nor ascertainable. Accordingly, Company shall have\nthe right to have the provisions of this NCND Agreement specifically enforced by a court of competent jurisdiction, in addition to any other\nremedies which Company may have in equity or at law, and Employee hereby consents to the entry of an injunction or other similar relief\nwithout the necessity of posting a bond or other financial insurance. Furthermore, Company shall be entitled to recover its costs and expenses\n(including reasonable attorneys' fees) incurred in enforcing its rights under this NCND Agreement.\nIf a dispute arises under this NCND Agreement, Employee shall have a duty to immediately notify the Company of the name, address and\ntelephone number of Employee's legal counsel. In the event Employee fails to provide this information, Employee agrees that the Company\nmay seek a temporary restraining order to enforce the provisions of this NCND Agreement on an xparte basis. Employee acknowledges that\nthe Company's recovery of damages will not be an adequate means to redress a breach of this NCND Agreement. Nothing contained in this\nparagraph, however, shall prohibit the Company from pursuing any remedies in addition to injunctive relief, including recovery of damages.\n3.2 Right to Recover Attorneys' Fees and Costs. (a) If the Company seeks a restraining order, an injunction or any other form of equitable relief,\nand recovers any such relief, Company shall be entitled to recover its reasonable attorneys' fees, court costs, and other costs incurred obtaining\nthat relief (even if other relief sought is denied). (b) If the Company obtains a final judgment of a court of competent jurisdiction, pursuant to\nwhich Employee is determined to have breached his/her obligations under this Agreement, the Company shall be entitled to recover, in\naddition to any award of damages, its reasonable attorneys' fees, costs, and expenses incurred by the Company in obtaining such judgment.\nAny relief awarded under this subparagraph (b) shall be in addition to any other relief awarded under subparagraph (a). The parties agree that\nthe provisions of this paragraph are reasonable and necessary.\nOTHER MATTERS\n4.1\nCondition to Seeking Subsequent Employment. Employee agrees to show a copy of this NCND Agreement to any Competing Company with\nwhom Employee interviews during the Employment Agreement Term or with whom Employee interviews within the 12 month period\nimmediately following the termination of the Employment Agreement Term.\n4.2\nEntire Agreement. This NCND Agreement constitutes the entire agreement between the parties relating to the specific matters covered by this\nNCND Agreement and supersedes all prior agreements, whether written or oral. No modifications or waiver of any part of this NCND\nAgreement shall be binding upon either party unless in writing.\n5\n4.3 Waiver. The waiver of a breach of any provision of this NCND Agreement by any party shall not operate or be construed as a waiver of any\nprovision of this NCND Agreement or consent of any subsequent breach.\n4.4\nSeverability.. If any term or provision of this NCND Agreement shall be determined invalid or unenforceable to any extent or in any\napplication, then the remainder of this NCND Agreement shall not be affected thereby, and such term or provision shall be deemed modified\nto\nthe minimum extent necessary to make it consistent with applicable law, except to such extent or in such application, shall not be affected\nthereby, every term and provision of this NCND Agreement as SO modified if necessary, shall be enforced to the fullest extent and in the\nbroadest application permitted by law.\n4.5\nGoverning Law. In order to maintain uniformity in the interpretation of this NCND Agreement the parties have expressly agreed that this\nNCND Agreement, the parties' performance hereunder and the relationship between them shall be governed by, construed and enforced in\naccordance with the laws of the Commonwealth of Pennsylvania, without regard to the principles thereof regarding conflicts of laws.\n4.6 Transfer or Assignment; Binding Nature. Company may transfer or assign its rights and obligations pursuant to this NCND Agreement to its\nsuccessors or assigns. Employee shall not assign any of his or her rights or delegate any of his or her duties or obligations under this NCND\nAgreement. This NCND Agreement shall be binding upon and inure to the benefit of the parties hereto and to the Company's successors and\nassigns.\n4.7 Tolling Employee understands and agrees that in the event of any breach of his/her obligations under paragraphs 1.3 or 1.4 of this NCND\nAgreement, the No Competition Period shall be automatically tolled for the amount of time the violation continues.\nIN WITNESS WHEREOF, the undersigned have executed this NCND AGREEMENT, intending to be bound under their seals, effective as of\nthe day and year set forth above.\nCOMPANY:\nEMPLOYEE:\nBy:\nBy:\nDATE:\nDATE:\n6	EX-10.19 25 d319036dex1019.htm FORM OF NO COMPETITION AND NON-DISCLOSURE AGREEMENT\nExhibit 10.19\nLOGO\nGLOBUS MEDICAL, INC.\nNO COMPETITION AND NON-DISCLOSURE\nAGREEMENT\nLOGO\nThis No Competition and Non-Disclosure Agreement (“NCND Agreement”) is made and entered into between Globus Medical, Inc., its subsidiaries\nand divisions including Algea Therapies, Inc. (collectively the “Company”) and\n(“Employee”) effective\n(“Effective Date”).\nACKNOWLEDGEMENTS & DEFINITIONS\nA. The Company is engaged in the design, development, production, distribution and sale of products and services related to the spine\n(“Products”).\nB. Employee performs services for and on behalf of the Company, either as a direct employee or through an independent service contract, for\nwhich Company compensates Employee, which may include services in connection with promotion or sale of Products. Company desires to\nemploy and/or continue to employ Employee, provided that as an express condition of such employment or continued employment, Employee\nenters into this NCND Agreement with Company. In the case of an Employee who is signing this NCND Agreement after the inception of\nhis/her employment relationship with the Company, Employee acknowledges that the Company has provided Employee with valuable\nconsideration in exchange for signing this NCND Agreement.\nC. The parties agree that this NCND Agreement is supported by valuable consideration, that mutual promises and obligations have been\nundertaken by the parties to it, and that this NCND Agreement is entered into voluntarily by the parties.\nD. For purposes of this NCND Agreement the Employee’s performance of services and receipt of compensation from the Company will be\ndefined as the Employment Agreement (the “Employment Agreement”) between the Employee and the Company, whether or not a written\nemployment agreement exists between the Employee and the Company governing said services and compensation.\nE. For purposes of this NCND Agreement, the term of the Employment Agreement (“Employment Agreement Term”) shall be defined as the time\nperiod during which Employee performs services for or on behalf of the Company.\n1\nF. For purposes of this NCND Agreement, the NCND Territory (“NCND Territory”) shall be defined as any geographic area assigned to the\nEmployee within the most recent 12 months of the Employment Agreement Term. In the event that the Employee has been assigned certain\nHospitals (as defined below) and/ or Medical Personnel (as defined below) and not a geographic area within the most recent 12 months of the\nEmployee Agreement Term, the NCND Territory shall be defined as any Hospitals and/or Medical Personnel to which the Employee was\nassigned within the most recent 12 months of the Employee Agreement Term. In the event the Employee has not been assigned to specific\nHospitals and/or Medical Personnel or to a specific geographic region within the most recent 12 months of the Employee Agreement Term, the\nNCND Territory shall be defined as worldwide.\nG. For purposes of this NCND Agreement, Medical Personnel (“Medical Personnel”) shall be defined as orthopedic surgeons, neurosurgeons,\nphysicians, nurses and other medical personnel involved in the implantation, purchase or other handling and usage of the Products, including\nbut not limited to employees, agents or persons who control, direct or influence purchasing decisions of any Hospitals.\nH. For purposes of this NCND Agreement, Hospitals (“Hospitals”) shall be defined as hospitals, surgery centers, medical centers and other health\ncare facilities that purchase Products and the location at which Medical Personnel perform services related to the purchase, implantation or\nother handling and usage of the Products.\nI. Employee will have access to confidential, proprietary and trade secret information (“Confidential Information”) belonging to the Company,\nincluding Confidential Information developed by the Employee (see Section 2.2 below). Such Confidential Information includes, but is not\nlimited to: customer lists; product specifications and attributes; pricing information; technology development plans; forecasts; financial\ninformation; sales strategies and techniques; business records; models; prototypes; schematics; manuals; handbooks; literature; vendors;\nbusiness terms between Company and suppliers; business terms between Company and Hospitals; business terms between Company and\ndistributors; business terms between Company and Medical Personnel. Employee acknowledges that Company owns such Confidential\nInformation and that Employee has no ownership interest in such Confidential Information. Furthermore, Employee acknowledges that the\ndisclosure of such Confidential Information to unauthorized third parties, including Competitive Companies (as defined below) would cause\ngreat and irreparable harm to the Company. Furthermore, Employee acknowledges that Company has a legitimate business interest in the\nprotection of the Confidential Information.\nNO COMPETITION & NO SOLICITATION COVENANT\n1.1 Competitive Activity. For purposes of this NCND Agreement, Competitive Activity (“Competitive Activity”) shall be defined as participation\nin, performance of services for, employment by, ownership of any interest in, or assistance, promotion or organization of, any Competing\nCompany. “Competing Company” is defined as any person, partnership, corporation, firm, limited liability company, association or other\nbusiness entity, other than Globus, that manufactures, designs, develops, sells, markets or distributes products or services\n2\nused in spine surgery; provided that the purchase for investment of not more than five (5%) percent of the total capital stock of such\nCompeting Company whose stock is publicly traded shall not constitute a Competitive Activity.\n1.2 No Competition Period. For purposes of this NCND Agreement, the No Competition Period (“No Competition Period”) shall be defined as the\ntime period encompassing both the Employment Agreement Term and the 12-month period immediately after the termination of the\nEmployment Agreement.\n1.3 No Competition or Solicitation Covenant. During the No Competition Period, Employee agrees not to engage in any Competitive Activity for\nany Competing Company.\nIf, during the last year of employment with Company, Employee was engaged exclusively in non-management field sales activities including\nselling, soliciting the sale or supporting the sale of Products through contact with Hospitals or Medical Personnel, then Employee’s covenants\nunder this paragraph are as follows: Employee agrees not to engage in any Competitive Activity with any Hospitals or Medical Personnel\nduring the Employment Agreement Term. In addition, Employee agrees not to engage in any Competitive Activity with any Hospitals or\nMedical Personal during the No Competition Period in the NCND Territory. Furthermore, during the No Competition period, Employee agrees\nnot to directly or indirectly, either for the Employee’s benefit or the benefit of another entity, solicit, call on, interfere with, attempt to divert,\nentice away, sell to or market to any Hospital in the NCND Territory, or to any Medical Personnel in the NCND Territory who perform any\nservices related to the implantation or other handling and usage of the Products (regardless of whether such services are also provided by the\nMedical Personnel outside the NCND Territory). By way of example, if a physician performs services at two different Hospitals, one within\nand one outside the NCND Territory, the restrictions in this paragraph prohibit the Employee from directly or indirectly soliciting, calling on,\ninterfering with, or attempting to divert, entice away, sell to or market to the physician at either the Hospital within the NCND Territory or the\nHospital outside the NCND Territory.\n1.4 No Solicitation of Company’s Employees or Employees. During the No Competition Period, Employee agrees not to directly or indirectly,\neither for the Employee’s benefit or the benefit of another entity, employ or offer to employ in any capacity, contact or recommend for\nemployment with a Competing Company, contact or recommend for the purposes of entering into a contractual relationship with a Competing\nCompany, or solicit, call on, interfere with, or attempt to divert, or entice away, any individuals who are or were employees, independent\ncontractors, representatives or employees of the Company or of any of the Company’s distributors at any time within the preceding 12 months.\nNON-DISCLOSURE COVENANT\n2.1 Use of Confidential Information. Both during the Employment Agreement Term and after the termination of the Employment Agreement,\nEmployee agrees not to use any Confidential Information except as required to perform its obligations as an Employee of the Company, or\ndisclose to any individual, corporation, partnership or other entity any Confidential Information belonging to the Company, unless Employee is\nrequired to make such disclosure pursuant to\n3\njudicial process. Notwithstanding the foregoing, immediately upon receipt of subpoena or other judicial process requiring disclosure of\nConfidential Information belonging to Company, Employee shall deliver written notice and a complete copy of such process to the Company\nand before responding to such process, allow the Company to take such action as they may deem appropriate under the circumstances to\nprotect their interests in the Confidential Information requested for disclosure.\n2.2 Development of Intellectual Property. Employee may make, discover or develop inventions, ideas, trade secrets, financial materials, computer\nprograms, discoveries, developmental improvements, know-how, processes and devices related to or used in the conduct of Employee’s\nperformance of services for and on behalf of the Company (“Developments”). The Employee agrees to disclose fully and promptly to the\nCompany any said Developments. Furthermore, Employee agrees that the Company is the sole and exclusive owner of said Developments; the\nEmployee retains no ownership in said Developments; and said Developments become part of the Company’s Confidential Information for\npurposes of this NCND Agreement. Company and Employee agree that if the Developments or any portion thereof are copyrightable, it shall\nbe deemed “work for hire” as such term is defined in the U.S. Copyright Act. The Employee shall execute and deliver to the Company any and\nall licenses, applications, assignments and other documents and take any and all actions that the Company may deem necessary or desirable to\nprotect Company’s ownership rights in said Developments.\n2.3 Handling and Return of Confidential Information. Employee shall not physically or electronically remove or make copies of any Confidential\nInformation owned by the Company, except as required by the Employee to properly fulfill their responsibilities as an Employee of the\nCompany. Upon the termination of the Employment Agreement, Employee shall immediately return to the Company any and all Confidential\nInformation in their possession, including any and all copies of said Confidential Information.\n2.4 Fiduciary Duties. Employee agrees that Employee shall treat all Confidential Information entrusted to Employee by Company as a fiduciary,\nand Employee accepts and undertakes all the obligations of a fiduciary, including good faith, trust, confidence and candor, to maintain, protect\nand develop Confidential Information for the benefit of Company.\n2.5 Confidential Information of Others. Employee hereby represents and warrants to the Company that Employee is not bound by any agreement,\nunderstanding or restriction, (including, but not limited to any covenant restricting competition or agreement related to the confidential and\nproprietary information and trade secrets of any third party), that is inconsistent with or prevents or limits the Employee’s ability to fulfill\nhis/her obligations under the Employment Agreement. Furthermore, Employee hereby represents and warrants to the Company that the\nexecution and performance of the Employment Agreement will not result in or constitute a breach of any term or condition of any other\nagreement the Employee is bound by. In performance of his/her duties and obligations under the Employment Agreement, Employee agrees\nnot to disclose the confidential and proprietary information or trade secrets of any third party to the Company.\n4\nREMEDIES\n3.1 Right to Specific Relief. Company and Employee recognize and acknowledge that the limitations set forth in this NCND Agreement are\nproperly required for the adequate protection of the business of the Company, and that violation of any of the provisions of this NCND\nAgreement will cause irreparable injury for which money damages are neither adequate nor ascertainable. Accordingly, Company shall have\nthe right to have the provisions of this NCND Agreement specifically enforced by a court of competent jurisdiction, in addition to any other\nremedies which Company may have in equity or at law, and Employee hereby consents to the entry of an injunction or other similar relief\nwithout the necessity of posting a bond or other financial insurance. Furthermore, Company shall be entitled to recover its costs and expenses\n(including reasonable attorneys’ fees) incurred in enforcing its rights under this NCND Agreement.\nIf a dispute arises under this NCND Agreement, Employee shall have a duty to immediately notify the Company of the name, address and\ntelephone number of Employee’s legal counsel. In the event Employee fails to provide this information, Employee agrees that the Company\nmay seek a temporary restraining order to enforce the provisions of this NCND Agreement on an ex parte basis. Employee acknowledges that\nthe Company’s recovery of damages will not be an adequate means to redress a breach of this NCND Agreement. Nothing contained in this\nparagraph, however, shall prohibit the Company from pursuing any remedies in addition to injunctive relief, including recovery of damages.\n3.2 Right to Recover Attorneys’ Fees and Costs. (a) If the Company seeks a restraining order, an injunction or any other form of equitable relief,\nand recovers any such relief, Company shall be entitled to recover its reasonable attorneys’ fees, court costs, and other costs incurred obtaining\nthat relief (even if other relief sought is denied). (b) If the Company obtains a final judgment of a court of competent jurisdiction, pursuant to\nwhich Employee is determined to have breached his/her obligations under this Agreement, the Company shall be entitled to recover, in\naddition to any award of damages, its reasonable attorneys’ fees, costs, and expenses incurred by the Company in obtaining such judgment.\nAny relief awarded under this subparagraph (b) shall be in addition to any other relief awarded under subparagraph (a). The parties agree that\nthe provisions of this paragraph are reasonable and necessary.\nOTHER MATTERS\n4.1 Condition to Seeking Subsequent Employment. Employee agrees to show a copy of this NCND Agreement to any Competing Company with\nwhom Employee interviews during the Employment Agreement Term or with whom Employee interviews within the 12 month period\nimmediately following the termination of the Employment Agreement Term.\n4.2 Entire Agreement. This NCND Agreement constitutes the entire agreement between the parties relating to the specific matters covered by this\nNCND Agreement and supersedes all prior agreements, whether written or oral. No modifications or waiver of any part of this NCND\nAgreement shall be binding upon either party unless in writing.\n5\n4.3 Waiver. The waiver of a breach of any provision of this NCND Agreement by any party shall not operate or be construed as a waiver of any\nprovision of this NCND Agreement or consent of any subsequent breach.\n4.4 Severability. If any term or provision of this NCND Agreement shall be determined invalid or unenforceable to any extent or in any\napplication, then the remainder of this NCND Agreement shall not be affected thereby, and such term or provision shall be deemed modified to\nthe minimum extent necessary to make it consistent with applicable law, except to such extent or in such application, shall not be affected\nthereby, every term and provision of this NCND Agreement as so modified if necessary, shall be enforced to the fullest extent and in the\nbroadest application permitted by law.\n4.5 Governing Law. In order to maintain uniformity in the interpretation of this NCND Agreement the parties have expressly agreed that this\nNCND Agreement, the parties’ performance hereunder and the relationship between them shall be governed by, construed and enforced in\naccordance with the laws of the Commonwealth of Pennsylvania, without regard to the principles thereof regarding conflicts of laws.\n4.6 Transfer or Assignment; Binding Nature. Company may transfer or assign its rights and obligations pursuant to this NCND Agreement to its\nsuccessors or assigns. Employee shall not assign any of his or her rights or delegate any of his or her duties or obligations under this NCND\nAgreement. This NCND Agreement shall be binding upon and inure to the benefit of the parties hereto and to the Company’s successors and\nassigns.\n4.7 Tolling. Employee understands and agrees that in the event of any breach of his/her obligations under paragraphs 1.3 or 1.4 of this NCND\nAgreement, the No Competition Period shall be automatically tolled for the amount of time the violation continues.\nIN WITNESS WHEREOF, the undersigned have executed this NCND AGREEMENT, intending to be bound under their seals, effective as of\nthe day and year set forth above.\nCOMPANY:\nEMPLOYEE:\nBy:\nBy:\nDATE:\nDATE:\n6
+e472889a99ad47b452af0b812684d2a5.pdf	effective_date jurisdiction party term	EX-10.20 3 doc3.txt NON-DISCLOSURE AGREEMENT Exhibit 10.20 Confidential NON-DISCLOSURE\nAGREEMENT The Regents of The University of Michigan, a constitutional corporation of The State of Michigan\n(hereinafter referred to as "MICHIGAN") and Genesis Bioventures, Inc., with offices located at 1A 3033 King George\nHwy, Surrey, BC, Canada V4P 1B8 (hereinafter referred to as "COMPANY") each possess, and consider to be\nproprietary and confidential, certain information, drawings, data, materials, software, documentation, business plans,\npotential licensing terms and know-how relating to MICHIGAN research concerning Mammastatin diagnostics, (all such\ninformation and materials are hereinafter referred to as "Confidential Information"). This agreement has an effective date\nof April 9, 2003. The relevant Confidential Information of MICHIGAN is identified in MICHIGAN's Office of\nTechnology Transfer as MICHIGAN File Nos. 1061. It is understood that COMPANY and MICHIGAN are both\ninterested in having COMPANY and MICHIGAN each receive access to such Confidential Information of the other for\nthe sole purposes of having COMPANY participate in commercial development of Confidential Information and\nnegotiating a license agreement regarding same. Hereinafter, COMPANY and MICHIGAN shall be referred to as "Party"\nor "Parties" as appropriate under the context. Designation of Information Under MCL 15.243 (d) and (f). The\ninformation provided by COMPANY to MICHIGAN under this Agreement is, in its entirety, commercial trade-secret\ninformation voluntarily provided to MICHIGAN for use in developing policy and is to be used by MICHIGAN\nexclusively for technology transfer activities related to research and evaluation. It is submitted to MICHIGAN based on\nMICHIGAN's promise of confidentiality, authorized by the Office of the President. Because such Confidential\nInformation is proprietary and confidential to the Parties, and to provide an appropriate basis by which such Confidential\nInformation can be made available to each Party from the other Party, the Parties agree to the following terms and\nprovisions. 1. This agreement applies only to Confidential Information received during the term of the May 13, 2003\nLicense Agreement between the Parties. 2. Except as provided in the License Agreement, neither Party shall be obligated\nby this Agreement to provide to the other Party any Confidential Information; and each Party may at its sole discretion\ndetermine which of its Confidential Information it will provide to the other Party. 3. All Confidential Information\nprovided in tangible form will be marked as such. 4. Each Party will treat as confidential all Confidential Information,\nwhich is or has been made available, directly or indirectly, to it by the other Party, and will treat it with the same degree\nof care that it would treat Confidential Information of its own, and in any event with no less than reasonable care. From\nthe date received, the receiving Party will not disclose Confidential Information of the other Party to others for a period\nof five (5) years. 5. Each Party will use Confidential Information received from the other Party only to the extent\nnecessary for the aforesaid purpose. 6. Each Party agrees to limit access to such Confidential Information received from\nthe other Party to those of its employees, agents, vendors and consultants reasonably requiring same for the aforesaid\npurpose and who are obligated to treat same in a manner and to an equivalent extent as provided herein with regard to\nconfidentiality, use, and non-disclosure. 7. Each party agrees to comply with all applicable laws, rules and regulations,\nincluding Export Administration Regulations and Export Control Regulations of the United States of America, relating\nto the export or re-export of technical data and products produced as a result of the use of such data, insofar as they relate\nto the information disclosed under this Agreement. 8. The secrecy and non-disclosure obligations of each Party under\nthis Agreement do not apply to Confidential Information received from the other Party which: (a) at the time of the\ndisclosure is generally available to the public or thereafter becomes generally available to the public through no act or\nomission of the receiving Party or its employees; or (b) the receiving Party can show by written records to have been in\nthe receiving Party's possession prior to the time of the disclosure and was not acquired, directly or indirectly, from the\nother Party; or (c) the receiving Party can show by written records to have been independently made available as a matter\nof right to the receiving Party by others, provided such others did not acquire the Confidential Information and Material\ndirectly or indirectly from the other Party; or (d) is required to be disclosed by law or court order. 9. If the disclosing\nParty at any time requests the receiving Party to do so, the receiving Party will return all materials, drawings, data,\nmemoranda, and written information in its possession relating to such Confidential Information of the disclosing Party,\nincluding copies thereof, to the other Party. 10. Nothing contained in this Agreement shall be construed to grant to the\nreceiving Party any rights in respect of such Confidential Information other than for the stated purpose. Nothing herein\nwill obligate either Party to proceed with any transaction between them, and each Party reserves the right, in its sole\ndiscretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity. 11. Each\nParty agrees not to make any public use of or reference to the name or trademarks (or any name under which\nCOMPANY or MICHIGAN does business) of the other Party (or the name any employee or technology of any Party) for\nany purpose whatsoever (including marketing, public relations, advertising, display or other business purpose), without\nthe prior written consent of the other Party, which consent may be withheld or granted in the other Party's sole and\nabsolute discretion. 12. The Parties agree that any xerographically or electronically reproduced copy of this fully-\nexecuted agreement shall have the same legal force and effect as any copy bearing original signatures of the parties. 13.\nMICHIGAN and COMPANY agree that this Agreement sets forth their entire understanding concerning confidentiality\nobligations, and no modification of the Agreement will be effective unless both MICHIGAN and COMPANY agree to it\nin writing. 14. The parties hereby consent to the jurisdiction of the courts in the State of Michigan over any dispute\nconcerning this Agreement or the relationship between the parties. Should COMPANY bring any claim, demand or other\naction against MICHIGAN, its Regents, fellows, officers, employees or agents, arising out of this Agreement or the\nrelationship between the parties, COMPANY agrees to bring said action only in the Michigan Court of Claims. The\nforegoing is understood and agreed to: FOR THE REGENTS OF FOR COMPANY THE UNIVERSITY OF\nMICHIGAN By /s/ E. Greg McCartney By /s/ Kenneth J. Nisbet ------------------------ ------------------------ (authorized\nrepresentative) Kenneth J. Nisbet Executive Director, UM Technology Transfer Typed Name: E. Greg McCartney --------\n-- -- - -- - -- - Title: Chairman / CEO ---------------- Date: May 13, 2003 Date: May 14, 2003 -------------- --------------	EX-10.20 3 doc3.txt NON-DISCLOSURE AGREEMENT Exhibit 10.20 Confidential NON-DISCLOSURE\nAGREEMENT The Regents of The University of Michigan, a constitutional corporation of The State of Michigan\n(hereinafter referred to as "MICHIGAN") and Genesis Bioventures, Inc., with offices located at 1A 3033 King George\nHwy, Surrey, BC, Canada V4P 1B8 (hereinafter referred to as "COMPANY™") each possess, and consider to be\nproprietary and confidential, certain information, drawings, data, materials, software, documentation, business plans,\npotential licensing terms and know-how relating to MICHIGAN research concerning Mammastatin diagnostics, (all such\ninformation and materials are hereinafter referred to as "Confidential Information"). This agreement has an effective date\nof April 9, 2003. The relevant Confidential Information of MICHIGAN is identified in MICHIGAN's Office of\nTechnology Transfer as MICHIGAN File Nos. 1061. It is understood that COMPANY and MICHIGAN are both\ninterested in having COMPANY and MICHIGAN each receive access to such Confidential Information of the other for\nthe sole purposes of having COMPANY participate in commercial development of Confidential Information and\nnegotiating a license agreement regarding same. Hereinafter, COMPANY and MICHIGAN shall be referred to as "Party"\nor "Parties" as appropriate under the context. Designation of Information Under MCL 15.243 (d) and (f). The\ninformation provided by COMPANY to MICHIGAN under this Agreement is, in its entirety, commercial trade-secret\ninformation voluntarily provided to MICHIGAN for use in developing policy and is to be used by MICHIGAN\nexclusively for technology transfer activities related to research and evaluation. It is submitted to MICHIGAN based on\nMICHIGAN's promise of confidentiality, authorized by the Office of the President. Because such Confidential\nInformation is proprietary and confidential to the Parties, and to provide an appropriate basis by which such Confidential\nInformation can be made available to each Party from the other Party, the Parties agree to the following terms and\nprovisions. 1. This agreement applies only to Confidential Information received during the term of the May 13, 2003\nLicense Agreement between the Parties. 2. Except as provided in the License Agreement, neither Party shall be obligated\nby this Agreement to provide to the other Party any Confidential Information; and each Party may at its sole discretion\ndetermine which of its Confidential Information it will provide to the other Party. 3. All Confidential Information\nprovided in tangible form will be marked as such. 4. Each Party will treat as confidential all Confidential Information,\nwhich is or has been made available, directly or indirectly, to it by the other Party, and will treat it with the same degree\nof care that it would treat Confidential Information of its own, and in any event with no less than reasonable care. From\nthe date received, the receiving Party will not disclose Confidential Information of the other Party to others for a period\nof five (5) years. 5. Each Party will use Confidential Information received from the other Party only to the extent\nnecessary for the aforesaid purpose. 6. Each Party agrees to limit access to such Confidential Information received from\nthe other Party to those of its employees, agents, vendors and consultants reasonably requiring same for the aforesaid\npurpose and who are obligated to treat same in a manner and to an equivalent extent as provided herein with regard to\nconfidentiality, use, and non-disclosure. 7. Each party agrees to comply with all applicable laws, rules and regulations,\nincluding Export Administration Regulations and Export Control Regulations of the United States of America, relating\nto the export or re-export of technical data and products produced as a result of the use of such data, insofar as they relate\nto the information disclosed under this Agreement. 8. The secrecy and non-disclosure obligations of each Party under\nthis Agreement do not apply to Confidential Information received from the other Party which: (a) at the time of the\ndisclosure is generally available to the public or thereafter becomes generally available to the public through no act or\nomission of the receiving Party or its employees; or (b) the receiving Party can show by written records to have been in\nthe receiving Party's possession prior to the time of the disclosure and was not acquired, directly or indirectly, from the\nother Party; or (c) the receiving Party can show by written records to have been independently made available as a matter\nof right to the receiving Party by others, provided such others did not acquire the Confidential Information and Material\ndirectly or indirectly from the other Party; or (d) is required to be disclosed by law or court order. 9. If the disclosing\nParty at any time requests the receiving Party to do so, the receiving Party will return all materials, drawings, data,\nmemoranda, and written information in its possession relating to such Confidential Information of the disclosing Party,\nincluding copies thereof, to the other Party. 10. Nothing contained in this Agreement shall be construed to grant to the\nreceiving Party any rights in respect of such Confidential Information other than for the stated purpose. Nothing herein\nwill obligate either Party to proceed with any transaction between them, and each Party reserves the right, in its sole\ndiscretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity. 11. Each\nParty agrees not to make any public use of or reference to the name or trademarks (or any name under which\nCOMPANY or MICHIGAN does business) of the other Party (or the name any employee or technology of any Party) for\nany purpose whatsoever (including marketing, public relations, advertising, display or other business purpose), without\nthe prior written consent of the other Party, which consent may be withheld or granted in the other Party's sole and\nabsolute discretion. 12. The Parties agree that any xerographically or electronically reproduced copy of this fully-\nexecuted agreement shall have the same legal force and effect as any copy bearing original signatures of the parties. 13.\nMICHIGAN and COMPANY agree that this Agreement sets forth their entire understanding concerning confidentiality\nobligations, and no modification of the Agreement will be effective unless both MICHIGAN and COMPANY agree to it\nin writing. 14. The parties hereby consent to the jurisdiction of the courts in the State of Michigan over any dispute\nconcerning this Agreement or the relationship between the parties. Should COMPANY bring any claim, demand or other\naction against MICHIGAN, its Regents, fellows, officers, employees or agents, arising out of this Agreement or the\nrelationship between the parties, COMPANY agrees to bring said action only in the Michigan Court of Claims. The\nforegoing is understood and agreed to: FOR THE REGENTS OF FOR COMPANY THE UNIVERSITY OF\nMICHIGAN By /s/ E. Greg McCartney By /s/ Kenneth J. Nisbet ----=--=--m--mmmmmmmmmmm oo (authorized\nrepresentative) Kenneth J. Nisbet Executive Director, UM Technology Transfer Typed Name: E. Greg McCartney --------\n----------- Title: Chairman / CEQ ---------------- Date: May 13, 2003 Date: May 14, 2003 ------------== ==--—---mmn-—-	EX-10.20 3 doc3.txt NON-DISCLOSURE AGREEMENT Exhibit 10.20 Confidential NON-DISCLOSURE\nAGREEMENT The Regents of The University of Michigan, a constitutional corporation of The State of Michigan\n(hereinafter referred to as "MICHIGAN") and Genesis Bioventures, Inc., with offices located at 1A 3033 King George\nHwy, Surrey, BC, Canada V4P 1B8 (hereinafter referred to as "COMPANY") each possess, and consider to be\nproprietary and confidential, certain information, drawings, data, materials, software, documentation, business plans,\npotential licensing terms and know-how relating to MICHIGAN research concerning Mammastatin diagnostics, (all such\ninformation and materials are hereinafter referred to as "Confidential Information"). This agreement has an effective date\nof April 9, 2003. The relevant Confidential Information of MICHIGAN is identified in MICHIGAN's Office of\nTechnology Transfer as MICHIGAN File Nos. 1061. It is understood that COMPANY and MICHIGAN are both\ninterested in having COMPANY and MICHIGAN each receive access to such Confidential Information of the other for\nthe sole purposes of having COMPANY participate in commercial development of Confidential Information and\nnegotiating a license agreement regarding same. Hereinafter, COMPANY and MICHIGAN shall be referred to as "Party"\nor "Parties" as appropriate under the context. Designation of Information Under MCL 15.243 (d) and (f). The\ninformation provided by COMPANY to MICHIGAN under this Agreement is, in its entirety, commercial trade-secret\ninformation voluntarily provided to MICHIGAN for use in developing policy and is to be used by MICHIGAN\nexclusively for technology transfer activities related to research and evaluation. It is submitted to MICHIGAN based\non\nMICHIGAN's promise of confidentiality, authorized by the Office of the President. Because such Confidential\nInformation is proprietary and confidential to the Parties, and to provide an appropriate basis by which such Confidential\nInformation can be made available to each Party from the other Party, the Parties agree to the following terms and\nprovisions. 1. This agreement applies only to Confidential Information received during the term of the May 13, 2003\nLicense Agreement between the Parties. 2. Except as provided in the License Agreement, neither Party shall be obligated\nby this Agreement to provide to the other Party any Confidential Information; and each Party may at its sole discretion\ndetermine which of its Confidential Information it will provide to the other Party. 3. All Confidential Information\nprovided in tangible form will be marked as such. 4. Each Party will treat as confidential all Confidential Information,\nwhich is or has been made available, directly or indirectly, to it by the other Party, and will treat it with the same degree\nof care that it would treat Confidential Information of its own, and in any event with no less than reasonable care. From\nthe date received, the receiving Party will not disclose Confidential Information of the other Party to others for a period\nof five (5) years. 5. Each Party will use Confidential Information received from the other Party only to the extent\nnecessary for the aforesaid purpose. 6. Each Party agrees to limit access to such Confidentia Information received from\nthe other Party to those of its employees, agents, vendors and consultants reasonably requiring same for the aforesaid\npurpose\nand\nwho\nare\nobligated\nto\ntreat\nsame\nin\na\nmanner\nand\nto\nan\nequivalent\nextent\nas\nprovided\nherein\nwith\nregard\nto\nconfidentiality, use, and non-disclosure. 7. Each party agrees to comply with all applicable laws, rules and regulations,\nincluding Export Administration Regulations and Export Control Regulations of the United States of America, relating\nto the export or re-export of technical data and products produced as a result of the use of such data, insofar as they relate\nto the information disclosed under this Agreement. 8. The secrecy and non-disclosure obligations of each Party under\nthis Agreement do not apply to Confidential Information received from the other Party which: (a) at the time of the\ndisclosure is generally available to the public or thereafter becomes generally available to the public through no act or\nomission of the receiving Party or its employees; or (b) the receiving Party can show by written records to have been in\nthe receiving Party's possession prior to the time of the disclosure and was not acquired, directly or indirectly, from the\nother Party; or (c) the receiving Party can show by written records to have been independently made available as a matter\nof right to the receiving Party by others, provided such others did not acquire the Confidential Information and Material\ndirectly or indirectly from the other Party; or (d) is required to be disclosed by law or court order. 9. If the disclosing\nParty at any time requests the receiving Party to do so, the receiving Party will return all materials, drawings, data,\nmemoranda, and written information in its possession relating to such Confidential Information of the disclosing Party,\nincluding copies thereof, to the other Party. 10. Nothing contained in this Agreement shall be construed to grant to the\nreceiving Party any rights in respect of such Confidential Information other than for the stated purpose. Nothing herein\nwill obligate either Party to proceed with any transaction between them, and each Party reserves the right, in its sole\ndiscretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity. 11. Each\nParty agrees not to make any public use of or reference to the name or trademarks (or any name under which\nCOMPANY or MICHIGAN does business) of the other Party (or the name any employee or technology of any Party) for\nany purpose whatsoever (including marketing, public relations, advertising, display or other business purpose), without\nthe prior written consent of the other Party, which consent may be withheld or granted in the other Party's sole and\nabsolute discretion 12. The Parties agree that any xerographically or electronically reproduced copy of this fully-\nexecuted\nagreement shall have the same legal force and effect as any copy bearing original signatures of the parties\n13.\nMICHIGAN and COMPANY agree that this Agreement sets forth their entire understanding concerning confidentiality\nobligations, and no modification of the Agreement will be effective unless both MICHIGAN and COMPANY agree to it\nin writing. 14. The parties hereby consent to the jurisdiction of the courts in the State of Michigan over any dispute\nconcerning this Agreement or the relationship between the parties. Should COMPANY bring any claim, demand or other\naction against MICHIGAN, its Regents, fellows, officers, employees or agents, arising out of this Agreement or the\nrelationship between the parties, COMPANY agrees to bring said action only in the Michigan Court of Claims. The\nforegoing is understood and agreed to: FOR THE REGENTS OF FOR COMPANY THE UNIVERSITY OF\nMICHIGAN By /s/ E. Greg McCartney By /s/ Kenneth J. Nisbet\n(authorized\nrepresentative) Kenneth J. Nisbet Executive Director, UM Technology Transfer Typed Name: E. Greg McCartney\nTitle: Chairman / CEO\nDate: May 13, 2003 Date: May 14, 2003	EX-10.20 3 doc3.txt NON-DISCLOSURE AGREEMENT Exhibit 10.20 Confidential NON-DISCLOSURE\nAGREEMENT The Regents of The University of Michigan, a constitutional corporation of The State of Michigan\n(hereinafter referred to as "MICHIGAN") and Genesis Bioventures, Inc., with offices located at 1A 3033 King George\nHwy, Surrey, BC, Canada V4P 1B8 (hereinafter referred to as "COMPANY") each possess, and consider to be\nproprietary and confidential, certain information, drawings, data, materials, software, documentation, business plans,\npotential licensing terms and know-how relating to MICHIGAN research concerning Mammastatin diagnostics, (all such\ninformation and materials are hereinafter referred to as "Confidential Information"). This agreement has an effective date\nof April 9, 2003. The relevant Confidential Information of MICHIGAN is identified in MICHIGAN's Office of\nTechnology Transfer as MICHIGAN File Nos. 1061. It is understood that COMPANY and MICHIGAN are both\ninterested in having COMPANY and MICHIGAN each receive access to such Confidential Information of the other for\nthe sole purposes of having COMPANY participate in commercial development of Confidential Information and\nnegotiating a license agreement regarding same. Hereinafter, COMPANY and MICHIGAN shall be referred to as "Party"\nor "Parties" as appropriate under the context. Designation of Information Under MCL 15.243 (d) and (f). The\ninformation provided by COMPANY to MICHIGAN under this Agreement is, in its entirety, commercial trade-secret\ninformation voluntarily provided to MICHIGAN for use in developing policy and is to be used by MICHIGAN\nexclusively for technology transfer activities related to research and evaluation. It is submitted to MICHIGAN based on\nMICHIGAN's promise of confidentiality, authorized by the Office of the President. Because such Confidential\nInformation is proprietary and confidential to the Parties, and to provide an appropriate basis by which such Confidential\nInformation can be made available to each Party from the other Party, the Parties agree to the following terms and\nprovisions. 1. This agreement applies only to Confidential Information received during the term of the May 13, 2003\nLicense Agreement between the Parties. 2. Except as provided in the License Agreement, neither Party shall be obligated\nby this Agreement to provide to the other Party any Confidential Information; and each Party may at its sole discretion\ndetermine which of its Confidential Information it will provide to the other Party. 3. All Confidential Information\nprovided in tangible form will be marked as such. 4. Each Party will treat as confidential all Confidential Information,\nwhich is or has been made available, directly or indirectly, to it by the other Party, and will treat it with the same degree\nof care that it would treat Confidential Information of its own, and in any event with no less than reasonable care. From\nthe date received, the receiving Party will not disclose Confidential Information of the other Party to others for a period\nof five (5) years. 5. Each Party will use Confidential Information received from the other Party only to the extent\nnecessary for the aforesaid purpose. 6. Each Party agrees to limit access to such Confidential Information received from\nthe other Party to those of its employees, agents, vendors and consultants reasonably requiring same for the aforesaid\npurpose and who are obligated to treat same in a manner and to an equivalent extent as provided herein with regard to\nconfidentiality, use, and non-disclosure. 7. Each party agrees to comply with all applicable laws, rules and regulations,\nincluding Export Administration Regulations and Export Control Regulations of the United States of America, relating\nto the export or re-export of technical data and products produced as a result of the use of such data, insofar as they relate\nto the information disclosed under this Agreement. 8. The secrecy and non-disclosure obligations of each Party under\nthis Agreement do not apply to Confidential Information received from the other Party which: (a) at the time of the\ndisclosure is generally available to the public or thereafter becomes generally available to the public through no act or\nomission of the receiving Party or its employees; or (b) the receiving Party can show by written records to have been in\nthe receiving Party's possession prior to the time of the disclosure and was not acquired, directly or indirectly, from the\nother Party; or (c) the receiving Party can show by written records to have been independently made available as a matter\nof right to the receiving Party by others, provided such others did not acquire the Confidential Information and Material\ndirectly or indirectly from the other Party; or (d) is required to be disclosed by law or court order. 9. If the disclosing\nParty at any time requests the receiving Party to do so, the receiving Party will return all materials, drawings, data,\nmemoranda, and written information in its possession relating to such Confidential Information of the disclosing Party,\nincluding copies thereof, to the other Party. 10. Nothing contained in this Agreement shall be construed to grant to the\nreceiving Party any rights in respect of such Confidential Information other than for the stated purpose. Nothing herein\nwill obligate either Party to proceed with any transaction between them, and each Party reserves the right, in its sole\ndiscretion, to terminate the discussions contemplated by this Agreement concerning the business opportunity. 11. Each\nParty agrees not to make any public use of or reference to the name or trademarks (or any name under which\nCOMPANY or MICHIGAN does business) of the other Party (or the name any employee or technology of any Party) for\nany purpose whatsoever (including marketing, public relations, advertising, display or other business purpose), without\nthe prior written consent of the other Party, which consent may be withheld or granted in the other Party's sole and\nabsolute discretion. 12. The Parties agree that any xerographically or electronically reproduced copy of this fully-\nexecuted agreement shall have the same legal force and effect as any copy bearing original signatures of the parties. 13.\nMICHIGAN and COMPANY agree that this Agreement sets forth their entire understanding concerning confidentiality\nobligations, and no modification of the Agreement will be effective unless both MICHIGAN and COMPANY agree to it\nin writing. 14. The parties hereby consent to the jurisdiction of the courts in the State of Michigan over any dispute\nconcerning this Agreement or the relationship between the parties. Should COMPANY bring any claim, demand or other\naction against MICHIGAN, its Regents, fellows, officers, employees or agents, arising out of this Agreement or the\nrelationship between the parties, COMPANY agrees to bring said action only in the Michigan Court of Claims. The\nforegoing is understood and agreed to: FOR THE REGENTS OF FOR COMPANY THE UNIVERSITY OF\nMICHIGAN By /s/ E. Greg McCartney By /s/ Kenneth J. Nisbet ------------------------ ------------------------ (authorized\nrepresentative) Kenneth J. Nisbet Executive Director, UM Technology Transfer Typed Name: E. Greg McCartney --------\n-- -- - -- - -- - Title: Chairman / CEO ---------------- Date: May 13, 2003 Date: May 14, 2003 -------------- --------------
+e549732a99aa5f913109db1afe6961fc.pdf	effective_date jurisdiction party term	EX-10.22 21 dex1022.htm NON-COMPETITION/NON-SOLICITATION/NON-DISCLOSURE - CRAIG EUDY\nExhibit 10.22\nNON-COMPETITION/NON -SOLICITATION/NON -DISCLOSURE AGREEMENT\nIn consideration of his employment by INFRASTRUX GROUP, INC. (hereinafter “Company”), this Employee Agreement (hereinafter\n“Agreement”) is made this 23rd day of June, 2009, by and between Craig Eudy (hereinafter “Employee”) and the Company, a term which includes\nthe Company’s successors and assigns. By the mutual promises and covenants made herein, the undersigned parties agree as follows:\n1. Provision of Benefits to Employee. Employee acknowledges that in the course of employment, Employee (a) will receive monetary\ncompensation; (b) may receive opportunities for advancement or reassignment that the Company may, from time to time, offer; (c) will\nobtain valuable, continuing training; (d) will be introduced to the Company customers; (e) will be provided with support and be\npermitted to utilize the Company’s goodwill and reputation; (f) will obtain and have access to the Company’s confidential, proprietary,\ncustomer, or trade secret information, including, but not limited to, its patented silicone fluid injection process; and (g) will have the use\nand enjoyment of the Company’s materials, equipment, facilities and overall research and business endeavors.\n2. No Outside Employment. Employee agrees to give the Company the exclusive benefit of Employee’s best skill and effort for the term\nof Employee’s employment with the Company. Employee agrees that for the term of Employee’s employment with the Company,\nEmployee will work exclusively for the Company and not hold employment outside of the Company. In connection with this provision,\nEmployee agrees not to sell outside products or services to the Company employees or customers during the term of Employee’s\nemployment with the Company.\n3. Non-Competition Covenant. Employee will not, during the term of Employee’s employment with the Company and for a period of two\n(2) years thereafter, in any manner, directly or indirectly, engage in, or have any equity or profit interests in, or render services of any\nexecutive, marketing, administrative, supervisory, or consulting nature, whether with or without remuneration, to any business or activity\ninvolved in the gas, electric, utilities, and/or telecommunications industry, which is in competition with any business, research or\nendeavor of the Company. The scope of competitive activities prohibited by this Agreement shall be limited to those activities of the type\nconducted, authorized, offered, or provided by Employee to the Company customers during the course of Employee’s employment with\nthe Company and involving products, technology, or services similar to those handled, created, sold, or distributed by the Company\nduring Employee’s employment.\n4. Inventions and Discoveries. Employee will promptly disclose in writing to the Company all ideas, inventions or discoveries conceived\nby Employee or developed, in whole or in part, by Employee during the term of Employee’s employment with the Company, related in\nany manner to the Company’s business, whether or not conceived or developed during working hours or on the property of the Company.\nSuch ideas, inventions and discoveries will be the property of the Company, and the Company will have the right to any patents,\ntrademarks, or copyrights that may be issued with respect thereto. Employee hereby agrees to assign to the Company, or its nominee, all\nright, title and interest in such ideas, inventions, discoveries, patent, trademark and copyright applications, patents, trademarks and\ncopyrights and assignments thereof, and will do such things as the Company may require to establish and protect its ownership and to\neffectuate the foregoing, either during Employee’s employment or thereafter. Excluded from the operation of this provision are those\nideas, inventions, and discoveries, patented and unpatented, of Employee’s that were made prior to Employee’s employment by the\nCompany and that have been described in writing by Employee and acknowledged in writing by the President of the Company.\n5. Residuals. The terms of confidentiality under this Agreement shall not be construed to limit Employee’s right to independently develop\nor acquire products without use of the Company’s Confidential Information. However, Employee shall not be free to use for any purpose\nthe residuals resulting from access to or work with the Confidential Information of the Company. The term “residuals” means\ninformation in intangible form, which is retained in memory by persons who have had access to the Confidential Information, including\nideas, concepts, know-how or techniques contained therein.\n6. Confidentiality. During Employee’s employment with the Company and after Employee separates employment from the Company,\nEmployee will treat as confidential and proprietary to the Company any data, information, or tangible materials received or acquired by\nEmployee in the course of performance of Employee’s employment relating to the business affairs, customers, finances, equipment,\nproducts, methods, processes, design and engineering data, know-how, or technology of the Company. Employee specifically\nunderstands and agrees that the identities of and information relating to the customers of the Company are confidential and proprietary\nand constitute trade secrets to the Company and must be treated as such both during and after the term of Employee’s employment.\nEmployee will also comply with and be bound by all nondisclosure agreements by which the Company agrees or is obligated to protect\nconfidential information for the benefit of any customer, client, or other third party.\nConfidential information means information which is treated by the Company as confidential and which has not been made generally\navailable to the public or to competitors of the Company (other than by fault of Employee), and includes, but is not limited to: the\nCompany’s pricing and marketing strategies and characteristics, profit margins, methods of operations and sales, sources of supplies, and\ncustomer information such as names, contact persons, customer needs and requirements, contract renewal dates for existing or\nprospective customers; and any other information relating to the Company’s business that is treated by the Company as confidential.\n7. Nonsolicitation of Customers Agreement. Employee agrees that: For a period of three (3) years following the termination of\nEmployee’s employment, Employee shall not directly, or indirectly by assisting others, solicit or attempt to solicit any business from any\nof the Company’s customers for whom Employee provided products or arranged services during employment with the Company, for\npurposes of providing products or services that are competitive with those provided by the Company.\n8. Nonsolicitation of Employees. Employee agrees that for a period of three (3) years following the termination of Employee’s\nemployment, Employee shall not directly, or indirectly by assisting others, recruit or hire, or attempt to recruit or hire any other\nemployee or former employee of the Company with whom Employee became familiar as a result of Employee’s employment with the\nCompany.\n9. Return of Property. Employee agrees to return all documents, records, notebooks, notes, memoranda, drawings or other documents,\nproperty, or tangible materials made or compiled by Employee at any time or in Employee’s possession during the course of Employee’s\nemployment, including any and all copies thereof. Employee agrees that all such property is the property of the Company, held by\nEmployee in trust solely for the benefit of the Company, and will be delivered to the Company upon termination of Employee’s\nemployment or at any other time upon request by the Company. It is specifically agreed that any documents, card files, notebooks,\nrolodexes, or computer printouts containing confidential customer information are the property of the Company regardless of who\nprepared or assembled the information.\n10. Enforcement.\nA. Reasonableness of Restrictions: Employee agrees and acknowledges that the above non-competition, non-solicitation, and non-\ndisclosure covenants are reasonable and necessary in that they protect the legitimate business interests of the Company, yet do not impair\nEmployee’s ability to earn a livelihood.\nB. Irreparable Harm; Injunctive Relief: Employee agrees and acknowledges that a violation by Employee of any of the covenants\ncontained herein will result in immediate and irreparable harm to the Company for which there is no adequate remedy at law. Employee hereby\nagrees that the Company will be entitled, in addition to any remedies it might have under this Agreement or at law, to injunctive and other\nequitable relief to prevent or curtail any threatened or actual breach of this Agreement.\nC. Extension of Covenants: During any breach of the provisions of this Agreement, the period of restraint set forth therein shall be\nautomatically tolled and suspended for the amount of time that the violation continues.\n2\nD. Attorneys’ Fees: Employee agrees to pay the Company any attorney’s fees and costs which the Company incurs in enforcing, to any\nextent, the provisions of this Agreement, whether or not litigation is actually commenced and including any appeal.\nE. Choice of Law: This Agreement will be governed by the laws of the State of Washington.\n11. Judicial Modification: The parties have attempted to limit Employee’s rights to compete only to the extent necessary to protect the\nCompany from unfair competition. The parties recognize, however, that reasonable people may differ in making such a determination.\nConsequently, the parties hereby agree that, if any portion of this Agreement, including any restrictions herein, is held in any legal\nproceeding to be invalid or unenforceable, the remaining portions of this Agreement, including any restrictions herein, will remain in full\nforce and effect. If any such invalidity or unenforceability is due to the unreasonableness of any particular portion or restriction, such\nportion or restriction shall be interpreted and enforced to the maximum extent and in such a manner as determined to be reasonable in\nany such legal proceeding.\n12. Construction of Agreement. It is agreed by the parties that the obligations between the parties, and the existence of any other claim or\ndefense shall not affect the enforceability of this Agreement or the remedies thereunder. It is agreed by the parties that this Agreement\nshall be automatically assigned to any successor of the Company, unless specifically provided otherwise in a writing executed by the\nPresident of the Company. This Agreement contains the entire understanding between the parties only as to the subjects set forth herein,\nand may not be modified, except in writing signed by all parties to this Agreement.\n13. Certificate of Understanding. Employee further certifies that Employee received a copy of this Agreement for review and study before\nbeing asked to sign it; read this Agreement carefully; had sufficient opportunity to discuss the Agreement with the attorney or counselor\nof Employee’s choice; had sufficient opportunity before the Agreement was signed to ask questions about the provisions of the\nAgreement and received satisfactory answers; and understands Employee’s rights and obligations under the Agreement; Employee signs\nthis Agreement freely and voluntarily, and without any coercion from any person.\nEmployee\nCompany\nSignature:\n/s/ Craig Eudy\nSignature:\n/s/ Lanny H. Michael\nPrint Name: Craig Eudy\nPrint Name: Lanny H. Michael\nDate:\n6/23/09\nTitle:\nChief Financial Officer\nDate:\n6/23/09\n3	EX-10.22 21 dex1022.htm NON-COMPETITION/NON-SOLICITATION/NON-DISCLOSURE - CRAIG EUDY Exhibit 10.22\nNON-COMPETITION/NON-SOLICITATION/NON-DISCIL.OSURE AGREEMENT\nIn consideration of his employment by INFRASTRUX GROUP, INC. (hereinafter “Company”), this Employee Agreement (hereinafter “Agreement”) is made this 23rd day of June, 2009, by and between Craig Eudy (hereinafter “Employee”) and the Company, a term which includes the Company’s successors and assigns. By the mutual promises and covenants made herein, the undersigned parties agree as follows: 1. Provision of Benefits to Employee. Employee acknowledges that in the course of employment, Employee (a) will receive monetary\ncompensation; (b) may receive opportunities for advancement or reassignment that the Company may, from time to time, offer; (c) will\nobtain valuable, continuing training; (d) will be introduced to the Company customers; (e) will be provided with support and be\npermitted to utilize the Company’s goodwill and reputation; (f) will obtain and have access to the Company’s confidential, proprietary,\ncustomer, or trade secret information, including, but not limited to, its patented silicone fluid injection process; and (g) will have the use\nand enjoyment of the Company’s materials, equipment, facilities and overall research and business endeavors.\nNo Outside Employment. Employee agrees to give the Company the exclusive benefit of Employee’s best skill and effort for the term\nof Employee’s employment with the Company. Employee agrees that for the term of Employee’s employment with the Company,\nEmployee will work exclusively for the Company and not hold employment outside of the Company. In connection with this provision,\nEmployee agrees not to sell outside products or services to the Company employees or customers during the term of Employee’s\nemployment with the Company.\nNon-Competition Covenant. Employee will not, during the term of Employee’s employment with the Company and for a period of two\n(2) years thereafter, in any manner, directly or indirectly, engage in, or have any equity or profit interests in, or render services of any\nexecutive, marketing, administrative, supervisory, or consulting nature, whether with or without remuneration, to any business or activity\ninvolved in the gas, electric, utilities, and/or telecommunications industry, which is in competition with any business, research or\nendeavor of the Company. The scope of competitive activities prohibited by this Agreement shall be limited to those activities of the type\nconducted, authorized, offered, or provided by Employee to the Company customers during the course of Employee’s employment with\nthe Company and involving products, technology, or services similar to those handled, created, sold, or distributed by the Company\nduring Employee’s employment.\nInventions and Discoveries. Employee will promptly disclose in writing to the Company all ideas, inventions or discoveries conceived\nby Employee or developed, in whole or in part, by Employee during the term of Employee’s employment with the Company, related in\nany manner to the Company’s business, whether or not conceived or developed during working hours or on the property of the Company.\nSuch ideas, inventions and discoveries will be the property of the Company, and the Company will have the right to any patents,\ntrademarks, or copyrights that may be issued with respect thereto. Employee hereby agrees to assign to the Company, or its nominee, all\nright, title and interest in such ideas, inventions, discoveries, patent, trademark and copyright applications, patents, trademarks and\ncopyrights and assignments thereof, and will do such things as the Company may require to establish and protect its ownership and to\neffectuate the foregoing, either during Employee’s employment or thereafter. Excluded from the operation of this provision are those\nideas, inventions, and discoveries, patented and unpatented, of Employee’s that were made prior to Employee’s employment by the\nCompany and that have been described in writing by Employee and acknowledged in writing by the President of the Company.\nResiduals. The terms of confidentiality under this Agreement shall not be construed to limit Employee’s right to independently develop\nor acquire products without use of the Company’s Confidential Information. However, Employee shall not be free to use for any purpose\nthe residuals resulting from access to or work with the Confidential Information of the Company. The term “residuals” means\ninformation in intangible form, which is retained in memory by persons who have had access to the Confidential Information, including\nideas, concepts, know-how or techniques contained therein.\n10. Confidentiality. During Employee’s employment with the Company and after Employee separates employment from the Company,\nEmployee will treat as confidential and proprietary to the Company any data, information, or tangible materials received or acquired by\nEmployee in the course of performance of Employee’s employment relating to the business affairs, customers, finances, equipment,\nproducts, methods, processes, design and engineering data, know-how, or technology of the Company. Employee specifically\nunderstands and agrees that the identities of and information relating to the customers of the Company are confidential and proprietary\nand constitute trade secrets to the Company and must be treated as such both during and after the term of Employee’s employment.\nEmployee will also comply with and be bound by all nondisclosure agreements by which the Company agrees or is obligated to protect\nconfidential information for the benefit of any customer, client, or other third party.\nConfidential information means information which is treated by the Company as confidential and which has not been made generally\navailable to the public or to competitors of the Company (other than by fault of Employee), and includes, but is not limited to: the\nCompany’s pricing and marketing strategies and characteristics, profit margins, methods of operations and sales, sources of supplies, and\ncustomer information such as names, contact persons, customer needs and requirements, contract renewal dates for existing or\nprospective customers; and any other information relating to the Company’s business that is treated by the Company as confidential.\nNonsolicitation of Customers Agreement. Employee agrees that: For a period of three (3) years following the termination of\nEmployee’s employment, Employee shall not directly, or indirectly by assisting others, solicit or attempt to solicit any business from any\nof the Company’s customers for whom Employee provided products or arranged services during employment with the Company, for\npurposes of providing products or services that are competitive with those provided by the Company.\nNonsolicitation of Employees. Employee agrees that for a period of three (3) years following the termination of Employee’s\nemployment, Employee shall not directly, or indirectly by assisting others, recruit or hire, or attempt to recruit or hire any other\nemployee or former employee of the Company with whom Employee became familiar as a result of Employee’s employment with the\nCompany.\nReturn of Property. Employee agrees to return all documents, records, notebooks, notes, memoranda, drawings or other documents,\nproperty, or tangible materials made or compiled by Employee at any time or in Employee’s possession during the course of Employee’s\nemployment, including any and all copies thereof. Employee agrees that all such property is the property of the Company, held by\nEmployee in trust solely for the benefit of the Company, and will be delivered to the Company upon termination of Employee’s\nemployment or at any other time upon request by the Company. It is specifically agreed that any documents, card files, notebooks,\nrolodexes, or computer printouts containing confidential customer information are the property of the Company regardless of who\nprepared or assembled the information.\nEnforcement.\nA. Reasonableness of Restrictions: Employee agrees and acknowledges that the above non-competition, non-solicitation, and non-\ndisclosure covenants are reasonable and necessary in that they protect the legitimate business interests of the Company, yet do not impair Employee’s ability to earn a livelihood. B. Irreparable Harm; Injunctive Relief: Employee agrees and acknowledges that a violation by Employee of any of the covenants\ncontained herein will result in immediate and irreparable harm to the Company for which there is no adequate remedy at law. Employee hereby agrees that the Company will be entitled, in addition to any remedies it might have under this Agreement or at law, to injunctive and other equitable relief to prevent or curtail any threatened or actual breach of this Agreement. C. Extension of Covenants: During any breach of the provisions of this Agreement, the period of restraint set forth therein shall be\nautomatically tolled and suspended for the amount of time that the violation continues. 2\nD. Attorneys’ Fees: Employee agrees to pay the Company any attorney’s fees and costs which the Company incurs in enforcing, to any\nextent, the provisions of this Agreement, whether or not litigation is actually commenced and including any appeal. 11.\n12.\n13.\nEmployee\nSignature:\nE. Choice of Law: This Agreement will be governed by the laws of the State of Washington.\nJudicial Modification: The parties have attempted to limit Employee’s rights to compete only to the extent necessary to protect the\nCompany from unfair competition. The parties recognize, however, that reasonable people may differ in making such a determination.\nConsequently, the parties hereby agree that, if any portion of this Agreement, including any restrictions herein, is held in any legal\nproceeding to be invalid or unenforceable, the remaining portions of this Agreement, including any restrictions herein, will remain in full\nforce and effect. If any such invalidity or unenforceability is due to the unreasonableness of any particular portion or restriction, such\nportion or restriction shall be interpreted and enforced to the maximum extent and in such a manner as determined to be reasonable in\nany such legal proceeding.\nConstruction of Agreement. It is agreed by the parties that the obligations between the parties, and the existence of any other claim or\ndefense shall not affect the enforceability of this Agreement or the remedies thereunder. It is agreed by the parties that this Agreement\nshall be automatically assigned to any successor of the Company, unless specifically provided otherwise in a writing executed by the\nPresident of the Company. This Agreement contains the entire understanding between the parties only as to the subjects set forth herein,\nand may not be modified, except in writing signed by all parties to this Agreement.\nCertificate of Understanding. Employee further certifies that Employee received a copy of this Agreement for review and study before\nbeing asked to sign it; read this Agreement carefully; had sufficient opportunity to discuss the Agreement with the attorney or counselor\nof Employee’s choice; had sufficient opportunity before the Agreement was signed to ask questions about the provisions of the\nAgreement and received satisfactory answers; and understands Employee’s rights and obligations under the Agreement; Employee signs\nthis Agreement freely and voluntarily, and without any coercion from any person.\nCompany\n/s/ Craig Eudy Signature: /s/ Lanny H. Michael\nPrint Name: Craig Eudy Print Name: Lanny H. Michael Date:\n6/23/09 Title: Chief Financial Officer\nDate: 6/23/09	EX-10.22 21 x1022.htm NON-COMPETITIONNON-SOLICITATIONNON-DISCLOSUR CRAIG EUDY\nExhibit 10.22\nNON.COMPETITIONNON SOLICITATIONNON-DISCLOSUREA AGREEMENT\nIn consideration of his employment by INFRASTRUX GROUP, INC. (hereinafter "Company"), this Employee Agreement (hereinafter\n"Agreement") is made this 23rd day of June, 2009, by and between Craig Eudy (hereinafter "Employee") and the Company, a term which includes\nthe Company's successors and assigns. By the mutual promises and covenants made herein, the undersigned parties agree as follows:\n1. Provision of Benefits to Employee. Employee acknowledges that in the course of employment, Employee (a) will receive monetary\ncompensation; (b) may receive opportunities for advancement or reassignment that the Company may, from time to time, offer; (c) will\nobtain valuable, continuing training; (d) will be introduced to the Company customers; (e) will be provided with support and be\npermitted to utilize the Company's goodwill and reputation; (f) will obtain and have access to the Company's confidential, proprietary,\ncustomer, or trade secret information, including, but not limited to, its patented silicone fluid injection process; and (g) will have the use\nand enjoyment of the Company's materials, equipment, facilities and overall research and business endeavors.\n2.\nNo Outside Employment. Employee agrees to give the Company the exclusive benefit of Employee's best skill and effort for the term\nof Employee's employment with the Company. Employee agrees that for the term of Employee's employment with the Company,\nEmployee will work exclusively for the Company and not hold employment outside of the Company. In connection with this provision,\nEmployee agrees not to sell outside products or services to the Company employees or customers during the term of Employee's\nemployment with the Company.\n3.\nNon-Competition Covenant. Employee will not, during the term of Employee's employment with the Company and for a period of two\n(2) years thereafter, in any manner, directly or indirectly, engage in, or have any equity or profit interests in, or render services of any\nexecutive, marketing, administrative, supervisory, or consulting nature, whether with or without remuneration, to any business or activity\ninvolved in the gas, electric, utilities, and/or telecommunications industry, which is in competition with any business, research or\nendeavor of the Company. The scope of competitive activities prohibited by this Agreement shall be limited to those activities of the type\nconducted, authorized, offered, or provided by Employee to the Company customers during the course of Employee's employment with\nthe Company and involving products, technology, or services similar to those handled, created, sold, or distributed by the Company\nduring Employee's employment.\n4.\nInventions\nand\nDiscoveries.\nEmployee\nwill\npromptly\ndisclose\nin\nwriting\nto\nthe\nCompany\nall\nideas,\ninventions\nor\ndiscoveries\nconceived\nby Employee or developed, in whole or in part, by Employee during the term of Employee's employment with the Company, related in\nany manner to the Company's business, whether or not conceived or developed during working hours or on the property of the Company.\nSuch ideas, inventions and discoveries will be the property of the Company, and the Company will have the right to any patents,\ntrademarks, or copyrights that may be issued with respect thereto. Employee hereby agrees to assign to the Company, or its nominee, all\nright, title and interest in such ideas, inventions, discoveries, patent, trademark and copyright applications, patents, trademarks and\ncopyrights and assignments thereof, and will do such things as the Company may require to establish and protect its ownership and to\neffectuate the foregoing, either during Employee's employment or thereafter. Excluded from the operation of this provision are those\nideas, inventions, and discoveries, patented and unpatented, of Employee's that were made prior to Employee's employment by the\nCompany and that have been described in writing by Employee and acknowledged in writing by the President of the Company.\n5.\nResiduals. The terms of confidentiality under this Agreement shall not be construed to limit Employee's right to independently develop\nor acquire products without use of the Company's Confidential Information. However, Employee shall not be free to use for any purpose\nthe residuals resulting from access to or work with the Confidential Information of the Company. The term "residuals" means\ninformation in intangible form, which is retained in memory by persons who have had access to the Confidential Information, including\nideas, concepts, know-how or techniques contained therein.\n6.\nConfidentiality. During Employee's employment with the Company and after Employee separates employment from the Company,\nEmployee will treat as confidential and proprietary to the Company any data, information, or tangible materials received or acquired by\nEmployee in the course of performance of Employee's employment relating to the business affairs, customers, finances, equipment,\nproducts, methods, processes, design and engineering data, know-how, or technology of the Company. Employee specifically\nunderstands and agrees that the identities of and information relating to the customers of the Company are confidential and proprietary\nand constitute trade secrets to the Company and must be treated as such both during and after the term of Employee's employment.\nEmployee will also comply with and be bound by all nondisclosure agreements by which the Company agrees or is obligated to protect\nconfidential information for the benefit of any customer, client, or other third party.\nConfidential information means information which is treated by the Company as confidential and which has not been made generally\navailable to the public or to competitors of the Company (other than by fault of Employee), and includes, but is not limited to: the\nCompany's pricing and marketing strategies and characteristics, profit margins, methods of operations and sales, sources of supplies, and\ncustomer information such as names, contact persons, customer needs and requirements, contract renewal dates for existing or\nprospective customers; and any other information relating to the Company's business that is treated by the Company as confidential.\n7.\nNonsolicitation of Customers Agreement. Employee agrees that: For a period of three (3) years following the termination of\nEmployee's employment, Employee shall not directly, or indirectly by assisting others, solicit or attempt to solicit any business from any\nof the Company's customers for whom Employee provided products or arranged services during employment with the Company, for\npurposes of providing products or services that are competitive with those provided by the Company.\n8.\nNonsolicitation of Employees. Employee agrees that for a period of three (3) years following the termination of Employee's\nemployment, Employee shall not directly, or indirectly by assisting others, recruit or hire, or attempt to recruit or hire any other\nemployee or former employee of the Company with whom Employee became familiar as a result of Employee's employment with the\nCompany.\n9.\nReturn of Property. Employee agrees to return all documents, records, notebooks, notes, memoranda drawings or other documents,\nproperty, or tangible materials made or compiled by Employee at any time or in Employee's possession during the course of Employee's\nemployment, including any and all copies thereof. Employee agrees that all such property is the property of the Company, held by\nEmployee in trust solely for the benefit of the Company, and will be delivered to the Company upon termination of Employee's\nemployment or at any other time upon request by the Company. It is specifically agreed that any documents, card files, notebooks,\nrolodexes, or computer printouts containing confidential customer information are the property of the Company regardless of who\nprepared or assembled the information.\n10. Enforcement.\nA. Reasonableness of Restrictions: Employee agrees and acknowledges that the above non-competition, non-solicitation, and non-\ndisclosure covenants are reasonable and necessary in that they protect the legitimate business interests of the Company, yet do not impair\nEmployee's ability to earn a livelihood.\nB. Irreparable Harm; Injunctive Relief: Employee agrees and acknowledges that a violation by Employee of any of the covenants\ncontained herein will result in immediate and irreparable harm to the Company for which there is no adequate remedy at law. Employee hereby\nagrees that the Company will be entitled, in addition to any remedies it might have under this Agreement or at law, to injunctive and other\nequitable relief to prevent or curtail any threatened or actual breach of this Agreement\nC. Extension of Covenants: During any breach of the provisions of this Agreement, the period of restraint set forth therein shall be\nautomatically tolled and suspended for the amount of time that the violation continues.\n2\nD. Attorneys' Fees: Employee agrees to pay the Company any attorney's fees and costs which the Company incurs in enforcing, to any\nextent, the provisions of this Agreement, whether or not litigation is actually commenced and including any appeal.\nE. Choice of Law: This Agreement will be governed by the laws of the State of Washington.\n11. Judicial Modification: The parties have attempted to limit Employee's rights to compete only to the extent necessary to protect the\nCompany from unfair competition. The parties recognize, however, that reasonable people may differ in making such a determination.\nConsequently, the parties hereby agree that, if any portion of this Agreement, including any restrictions herein, is held in any legal\nproceeding to be invalid or unenforceable, the remaining portions of this Agreement, including any restrictions herein, will remain in full\nforce and effect. If any such invalidity or unenforceability is due to the unreasonableness of any particular portion or restriction, such\nportion or restriction shall be interpreted and enforced to the maximum extent and in such a manner as determined to be reasonable in\nany such legal proceeding.\n12.\nConstruction of Agreement. It is agreed by the parties that the obligations between the parties, and the existence of any other claim or\ndefense shall not affect the enforceability of this Agreement or the remedies thereunder. It is agreed by the parties that this Agreement\nshall be automatically assigned to any successor of the Company, unless specifically provided otherwise in a writing executed by the\nPresident of the Company. This Agreement contains the entire understanding between the parties only as to the subjects set forth herein,\nand may not be modified, except in writing signed by all parties to this Agreement.\n13. Certificate of Understanding. Employee further certifies that Employee received a copy of this Agreement for review and study before\nbeing asked to sign it; read this Agreement carefully; had sufficient opportunity to discuss the Agreement with the attorney or counselor\nof Employee's choice; had sufficient opportunity before the Agreement was signed to ask questions about the provisions of the\nAgreement and received satisfactory answers; and understands Employee's rights and obligations under the Agreement; Employee signs\nthis Agreement freely and voluntarily, and without any coercion from any person.\nEmployee\nCompany\nSignature:\n/s/ Craig Eudy\nSignature:\n/s/ Lanny H. Michael\nPrint Name:\nCraig Eudy\nPrint Name:\nLanny H. Michael\nDate:\n6/23/09\nTitle:\nChief Financial Officer\nDate:\n6/23/09\n3	EX-10.22 21 dex1022.htm NON-COMPETITION/NON-SOLICITATION/NON-DISCLOSURE - CRAIG EUDY\nExhibit 10.22\nNON-COMPETITION/NON -SOLICITATION/NON -DISCLOSURE AGREEMENT\nIn consideration of his employment by INFRASTRUX GROUP, INC. (hereinafter “Company”), this Employee Agreement (hereinafter\n“Agreement”) is made this 23rd day of June, 2009, by and between Craig Eudy (hereinafter “Employee”) and the Company, a term which includes\nthe Company’s successors and assigns. By the mutual promises and covenants made herein, the undersigned parties agree as follows:\n1. Provision of Benefits to Employee. Employee acknowledges that in the course of employment, Employee (a) will receive monetary\ncompensation; (b) may receive opportunities for advancement or reassignment that the Company may, from time to time, offer; (c) will\nobtain valuable, continuing training; (d) will be introduced to the Company customers; (e) will be provided with support and be\npermitted to utilize the Company’s goodwill and reputation; (f) will obtain and have access to the Company’s confidential, proprietary,\ncustomer, or trade secret information, including, but not limited to, its patented silicone fluid injection process; and (g) will have the use\nand enjoyment of the Company’s materials, equipment, facilities and overall research and business endeavors.\n2. No Outside Employment. Employee agrees to give the Company the exclusive benefit of Employee’s best skill and effort for the term\nof Employee’s employment with the Company. Employee agrees that for the term of Employee’s employment with the Company,\nEmployee will work exclusively for the Company and not hold employment outside of the Company. In connection with this provision,\nEmployee agrees not to sell outside products or services to the Company employees or customers during the term of Employee’s\nemployment with the Company.\n3. Non-Competition Covenant. Employee will not, during the term of Employee’s employment with the Company and for a period of two\n(2) years thereafter, in any manner, directly or indirectly, engage in, or have any equity or profit interests in, or render services of any\nexecutive, marketing, administrative, supervisory, or consulting nature, whether with or without remuneration, to any business or activity\ninvolved in the gas, electric, utilities, and/or telecommunications industry, which is in competition with any business, research or\nendeavor of the Company. The scope of competitive activities prohibited by this Agreement shall be limited to those activities of the type\nconducted, authorized, offered, or provided by Employee to the Company customers during the course of Employee’s employment with\nthe Company and involving products, technology, or services similar to those handled, created, sold, or distributed by the Company\nduring Employee’s employment.\n4. Inventions and Discoveries. Employee will promptly disclose in writing to the Company all ideas, inventions or discoveries conceived\nby Employee or developed, in whole or in part, by Employee during the term of Employee’s employment with the Company, related in\nany manner to the Company’s business, whether or not conceived or developed during working hours or on the property of the Company.\nSuch ideas, inventions and discoveries will be the property of the Company, and the Company will have the right to any patents,\ntrademarks, or copyrights that may be issued with respect thereto. Employee hereby agrees to assign to the Company, or its nominee, all\nright, title and interest in such ideas, inventions, discoveries, patent, trademark and copyright applications, patents, trademarks and\ncopyrights and assignments thereof, and will do such things as the Company may require to establish and protect its ownership and to\neffectuate the foregoing, either during Employee’s employment or thereafter. Excluded from the operation of this provision are those\nideas, inventions, and discoveries, patented and unpatented, of Employee’s that were made prior to Employee’s employment by the\nCompany and that have been described in writing by Employee and acknowledged in writing by the President of the Company.\n5. Residuals. The terms of confidentiality under this Agreement shall not be construed to limit Employee’s right to independently develop\nor acquire products without use of the Company’s Confidential Information. However, Employee shall not be free to use for any purpose\nthe residuals resulting from access to or work with the Confidential Information of the Company. The term “residuals” means\ninformation in intangible form, which is retained in memory by persons who have had access to the Confidential Information, including\nideas, concepts, know-how or techniques contained therein.\n6. Confidentiality. During Employee’s employment with the Company and after Employee separates employment from the Company,\nEmployee will treat as confidential and proprietary to the Company any data, information, or tangible materials received or acquired by\nEmployee in the course of performance of Employee’s employment relating to the business affairs, customers, finances, equipment,\nproducts, methods, processes, design and engineering data, know-how, or technology of the Company. Employee specifically\nunderstands and agrees that the identities of and information relating to the customers of the Company are confidential and proprietary\nand constitute trade secrets to the Company and must be treated as such both during and after the term of Employee’s employment.\nEmployee will also comply with and be bound by all nondisclosure agreements by which the Company agrees or is obligated to protect\nconfidential information for the benefit of any customer, client, or other third party.\nConfidential information means information which is treated by the Company as confidential and which has not been made generally\navailable to the public or to competitors of the Company (other than by fault of Employee), and includes, but is not limited to: the\nCompany’s pricing and marketing strategies and characteristics, profit margins, methods of operations and sales, sources of supplies, and\ncustomer information such as names, contact persons, customer needs and requirements, contract renewal dates for existing or\nprospective customers; and any other information relating to the Company’s business that is treated by the Company as confidential.\n7. Nonsolicitation of Customers Agreement. Employee agrees that: For a period of three (3) years following the termination of\nEmployee’s employment, Employee shall not directly, or indirectly by assisting others, solicit or attempt to solicit any business from any\nof the Company’s customers for whom Employee provided products or arranged services during employment with the Company, for\npurposes of providing products or services that are competitive with those provided by the Company.\n8. Nonsolicitation of Employees. Employee agrees that for a period of three (3) years following the termination of Employee’s\nemployment, Employee shall not directly, or indirectly by assisting others, recruit or hire, or attempt to recruit or hire any other\nemployee or former employee of the Company with whom Employee became familiar as a result of Employee’s employment with the\nCompany.\n9. Return of Property. Employee agrees to return all documents, records, notebooks, notes, memoranda, drawings or other documents,\nproperty, or tangible materials made or compiled by Employee at any time or in Employee’s possession during the course of Employee’s\nemployment, including any and all copies thereof. Employee agrees that all such property is the property of the Company, held by\nEmployee in trust solely for the benefit of the Company, and will be delivered to the Company upon termination of Employee’s\nemployment or at any other time upon request by the Company. It is specifically agreed that any documents, card files, notebooks,\nrolodexes, or computer printouts containing confidential customer information are the property of the Company regardless of who\nprepared or assembled the information.\n10. Enforcement.\nA. Reasonableness of Restrictions: Employee agrees and acknowledges that the above non-competition, non-solicitation, and non-\ndisclosure covenants are reasonable and necessary in that they protect the legitimate business interests of the Company, yet do not impair\nEmployee’s ability to earn a livelihood.\nB. Irreparable Harm; Injunctive Relief: Employee agrees and acknowledges that a violation by Employee of any of the covenants\ncontained herein will result in immediate and irreparable harm to the Company for which there is no adequate remedy at law. Employee hereby\nagrees that the Company will be entitled, in addition to any remedies it might have under this Agreement or at law, to injunctive and other\nequitable relief to prevent or curtail any threatened or actual breach of this Agreement.\nC. Extension of Covenants: During any breach of the provisions of this Agreement, the period of restraint set forth therein shall be\nautomatically tolled and suspended for the amount of time that the violation continues.\n2\nD. Attorneys’ Fees: Employee agrees to pay the Company any attorney’s fees and costs which the Company incurs in enforcing, to any\nextent, the provisions of this Agreement, whether or not litigation is actually commenced and including any appeal.\nE. Choice of Law: This Agreement will be governed by the laws of the State of Washington.\n11. Judicial Modification: The parties have attempted to limit Employee’s rights to compete only to the extent necessary to protect the\nCompany from unfair competition. The parties recognize, however, that reasonable people may differ in making such a determination.\nConsequently, the parties hereby agree that, if any portion of this Agreement, including any restrictions herein, is held in any legal\nproceeding to be invalid or unenforceable, the remaining portions of this Agreement, including any restrictions herein, will remain in full\nforce and effect. If any such invalidity or unenforceability is due to the unreasonableness of any particular portion or restriction, such\nportion or restriction shall be interpreted and enforced to the maximum extent and in such a manner as determined to be reasonable in\nany such legal proceeding.\n12. Construction of Agreement. It is agreed by the parties that the obligations between the parties, and the existence of any other claim or\ndefense shall not affect the enforceability of this Agreement or the remedies thereunder. It is agreed by the parties that this Agreement\nshall be automatically assigned to any successor of the Company, unless specifically provided otherwise in a writing executed by the\nPresident of the Company. This Agreement contains the entire understanding between the parties only as to the subjects set forth herein,\nand may not be modified, except in writing signed by all parties to this Agreement.\n13. Certificate of Understanding. Employee further certifies that Employee received a copy of this Agreement for review and study before\nbeing asked to sign it; read this Agreement carefully; had sufficient opportunity to discuss the Agreement with the attorney or counselor\nof Employee’s choice; had sufficient opportunity before the Agreement was signed to ask questions about the provisions of the\nAgreement and received satisfactory answers; and understands Employee’s rights and obligations under the Agreement; Employee signs\nthis Agreement freely and voluntarily, and without any coercion from any person.\nEmployee\nCompany\nSignature:\n/s/ Craig Eudy\nSignature:\n/s/ Lanny H. Michael\nPrint Name: Craig Eudy\nPrint Name: Lanny H. Michael\nDate:\n6/23/09\nTitle:\nChief Financial Officer\nDate:\n6/23/09\n3
+e62a15f048e24dbd9f9e6f0febc2bcfc.pdf	effective_date jurisdiction party term	EX-10.2 3 dex102.htm MASTER CONFIDENTIALITY AND JOINT DEVELOPMENT AGREEMENT\nExhibit 10.2\nMASTER CONFIDENTIALITY AND JOINT DEVELOPMENT AGREEMENT\nThis Master Confidentiality and Joint Development Agreement (“Agreement”) is by and between Momentive Specialty Chemicals Inc., with a\nprincipal place of business at 180 East Broad Street, Columbus, Ohio 43215 (“MSC”), and Momentive Performance Materials Inc., with a principal\nplace of business at 22 Corporate Woods Boulevard, Albany, NY 12211 (“MPM”). The effective date of this Agreement is October 1, 2010\n(“Effective Date”).\nRECITALS\nWHEREAS, MSC makes and sells epoxy, phenolic and coating products and materials, as well as forest products, and has developed, and\ncontinues to develop, proprietary technology and intellectual property relating to such products and materials, the manufacture of such products and\nmaterials and the use of such products and materials in a wide variety of end-use applications;\nWHEREAS, MPM makes and sells silicones, quartz and ceramics products and materials, and has developed, and continues to develop,\nproprietary technology and intellectual property relating to such products and materials, the manufacture of such products and materials and the use\nof such products and materials in a wide variety of end-use applications;\nWHEREAS, MSC and MPM are Affiliates, although separate legal entities, and are both commonly indirectly owned by Momentive\nPerformance Materials Holdings LLC;\nWHEREAS, MSC and MPM mutually desire to cooperate with each other from time to time in the exchange of confidential information and\nproprietary technology and/or in the joint development of certain technology and/or products as the Parties mutually deem appropriate throughout\nthe life of this Agreement; and\nWHEREAS, in the event that new technology, products, materials and the like, including any resulting intellectual property related thereto, are\ndeveloped under this Agreement, MSC and MPM desire to set forth their respective rights regarding the ownership and use of such technology,\nproducts, materials and associated intellectual property.\nNOW, THEREFORE, in consideration of the material covenants and promises set forth herein the receipt and sufficiency of which is hereby\nagreed and acknowledged, the Parties agree as follows:\n1. Definitions.\n1.1 “Affiliate” means any entity that directly or indirectly owns, is owned by, or is under the common ownership with a Party, at any time\nduring the term of this Agreement. “Owns”, “owned” or “ownership” means direct or indirect possession of more than fifty percent (50%) of\nthe votes of holders of a corporation’s voting securities, or a comparable equity or other ownership interest in any other type of entity; provided\nthat for the purposes of this Agreement, MPM and its Affiliates shall not constitute Affiliates of MSC or its Affiliates, and vice-versa.\nConfidential\n1\n1.2 “Change of Control” means the occurrence of any of the following events: (a) any sale, lease, exchange or other transfer (in one\ntransaction or a series of related transactions) of all or substantially all of the assets of either of MSC or MPM to any entity or group, together\nwith any Affiliates thereof; (b) consummation of a sale of capital stock, merger, consolidation, reorganization or other transaction (or series of\nrelated transactions) involving either of MSC or MPM following which the direct or indirect beneficial owners of the applicable Party (or any\nof them) as of the date hereof do not hold, collectively, capital stock or other securities of the surviving corporation (i) with voting power to\nelect a majority of the surviving entity’s board of directors or equivalent, or (ii) representing a beneficial interest in the surviving entity equal\nto at least a majority thereof or (c) any other transaction the result of which is that MPM shall no longer constitute an Affiliate of MSC. For\npurposes of this definition, no effect shall be given to the proviso to the definition of “Affiliate” set forth in Section 1.1.\n1.3 “Confidential Information” means any technical or commercial information or data, trade secrets, know-how, etc., of either Party or\ntheir respective Affiliates whether or not marked or stamped as confidential, including without limitation, Technology, Invention(s),\nIntellectual Property Rights, Independent Technology and any samples of products, materials or formulations including, without limitation, the\nchemical identity and any properties or specifications related to the foregoing. Any Development Program Technology, MPM Work Product,\nMSC Work Product, Hybrid Work Product, Prior End-Use Work Product and/or Shared Development Program Technology shall be\nConfidential Information of the Party that owns the subject matter under the terms set forth in this Agreement.\n1.4 “Development Program” means research and development programs that are mutually agreed upon from time to time by the Parties\nin accordance with the terms of this Agreement and described in a Development Program Form attached as Exhibit A to this Agreement.\n1.5 “Development Program Form” means the form described in Section 3.\n1.6 “Development Program Technology” means Technology that is not Independent Technology and that is conceived by at least one\nrepresentative of a Party or a Party’s Affiliates, either solely or jointly, after the Effective Date and before any expiration and/or termination of\nthis Agreement and directly attributed to work performed under any Development Program under this Agreement.\n1.7 “Effective Date” means the date first written above.\n1.8 “Hybrid Product” shall have the meaning set forth in Section 7.2 (c).\n1.9 “Hybrid Work Product” shall have the meaning set forth in Section 7.2 (c).\n1.10 “Independent Technology” means Technology and associated Intellectual Property Rights owned solely by a Party, which is\nconceived prior to the Effective Date and/or at any time outside of the course of a Development Program, provided, where such conception\noccurred after the Effective Date, the owning Party made no use of or reliance upon the other Party’s Technology for such conception or any\nsubsequent reduction to practice.\n1.11 “Intellectual Property Rights” means all worldwide utility and design patents, patent applications, and rights associated therewith,\nincluding any divisionals, continuations, continuations in part, reissues and reexaminations thereof, regardless of whether\nConfidential\n2\nsuch rights arise under the law of the United States or any other state, country or jurisdiction, as well as all know-how, trade secrets,\nproprietary information, technical data and the like.\n1.12 “Invention” means any invention, improvement, know-how, development, or discovery whether patentable or not.\n1.13 “MPM Materials” means: (i) chemical substances whether molecular or formulated and whether polymeric, monomeric or\nelemental which are based on the element silicon; (ii) sealants and adhesives, and adhesion promoters; (iii) catalytic materials including,\nwithout limitation, those based on the elements or species tin, amines, nickel, platinum, titanium and palladium; (iv) urethane additives and\nformulations containing the same; (v) additives for personal care products and resulting formulations; (vi) coatings; (vii) cross-linking agents\nand coupling agents; (viii) hardcoat formulations; (viii) ceramic powders for industrial use in the manufacture of a wide variety of goods;\n(ix) thermal management products for use in heat transfer applications; (x) ceramic parts and coated articles, electric resistance heating\nelements, and related components for use in various industrial processes; (xi) fabricated articles made from fused silica, fused quartz or glass\nfor use in the semiconductor, electronics, metallurgical, thin film and other industries; (xii) ceramic heaters and heater assemblies; (xii) metal\ncarbide coatings; and (xiii) synthetic silicone dioxide and modifications thereof.\n1.14 “MPM Work Product” shall have the meaning set forth in Section 7.2 (a).\n1.15 “MSC Materials” means (i) epoxy resins curing agents and modifiers for use across a wide range of applications including coatings,\nlaminates, composites and adhesives; (ii) adhesives for use in engineered wood products; (iii) formaldehyde and derivatives including\nhexamine, methaform and urea concentrates; (iv) mortar chemicals including liquid latexes, redispersible latex powders and other additives;\n(v) moulding compounds including epoxies, phenolics, melamine-phenolics and unsaturated polyesters; (vi) resin coated proppants;\n(vii) phenolic and amino resins including phenolic novolac, resole, powder resin solutions and water-based solutions; (viii) tackifier resins and\npine chemicals for use in hot melt adhesives, road marking applications and pressure-sensitive and non-pressure-sensitive adhesives;\n(ix) textile and non-woven resins; (x) UV curable resins for fiber optic applications; (xi) VERSATIC acid and derivatives; (xii) wax products\nand additives for use in coatings, composites and gypsum panels; and (xiii) wood composite binders for use in plywood and laminated veneer\nlumber, particleboard, MDF and oriented strand board.\n1.16 “MSC Work Product” shall have the meaning set forth in Section 7.2 (b).\n1.17 “Party” or “Parties” means, subject to Section 2, either MSC or MPM individually, or both MSC and MPM, as the text would\nwarrant.\n1.18 “Person” means any individual, corporation, partnership, association, trust, governmental authority or other entity or organization.\n1.20 “Previously Commercialized Party” shall have the meaning set forth in Section 1.21.\n1.21 “Prior End-Use Work Product” means (i) Hybrid Product or (ii) the use of any products, materials, formulations and the like that are\nmade from or include any Hybrid Product, in each case that can be used in an end-use application that has been commercially exploited by one\nParty and/or a Party’s Affiliate (but not both of the Parties including their\nConfidential\n3\nrespective Affiliates) prior to the Effective Date. The Party (including their respective Affiliates) who has previously commercialized such\nend-use application will be referred to as “Previously Commercialized Party”.\n1.22 “Purpose” shall have the meaning set forth in Section 2.\n1.23 “Royalty Obligations” means payment obligations, whether as up-front payments, royalties, license maintenance fees, milestone\npayments or any other consideration, for any royalty-bearing license granted in this Agreement that has been reasonably negotiated by the\nParties through arm’s-length good faith negotiation and agreement through the Steering Committee as provided in Section 7.4. In a scenario\nwhere the Parties have agreed to jointly pursue a commercial opportunity and the licensor Party has decided, in its sole discretion, that its\nparticipation in the joint opportunity will provide it with sufficient value, the licensor Party may decide, in its sole discretion, that a reasonable\nroyalty is one dollar or other nominal amount. The Royalty Obligations may be agreed upon as part of a Development Program Form, an\namendment to this Agreement or any other writing executed between the Parties.\n1.24 “Shared Development Program Technology” means Development Program Technology that (i) did not evolve into MPM Work\nProduct or MSC Work Product, (ii) is not Prior End-Use Work Product or (iii) does not meet the criteria set forth in Section 7.2(c)(i) through\n(v).\n1.25 “Steering Committee” means the committee described in Section 6.2 .\n1.26 “Technology” means all tangible or intangible know-how, knowledge, concepts, procedures, schematics, trade secrets, technical\ninformation and data, ideas, processes, inventions, technology, discoveries, improvements, methods, compositions, formulae, techniques, test\nresults, devices, designs, and/or manufacturing specifications and procedures, strategic business information, financial information, and any\ninformation regarding sources and prices for raw materials, subassemblies, parts and manufacturing services.\n2. Agreement Subject Matter. It is expected that the Parties will be exchanging Confidential Information with each other: (i) during their\nmutual evaluation of potential opportunities to collaborate with each other in the commercial exploitation of their respective products and\ntechnologies, (ii) during any cooperative research and development of newly developed products and technologies, and (iii) during the commercial\nphase of any cooperative exploitation of a Party’s products and/or technologies. In addition, it is expected that the Parties will also exchange\nConfidential Information during the planning for and delivery of services pursuant to that certain Shared Services Agreement, effective October 1,\n2010, subscribed to by, among other parties, MPM and Hexion Specialty Chemicals Inc. (predecessor company to MSC). Accordingly, this\nAgreement sets forth the terms and conditions for the disclosure, receipt and use of the other Party’s Confidential Information and also sets forth the\nterms and conditions for any cooperative development activities that the Parties may mutually decide to pursue. All of the activities and exchanges\nof Confidential Information described in this Section 2 shall be referred to as the “Purpose.” For the purpose of clarity, each Party will be engaging\nin activities to achieve the Purpose either by itself or with the assistance of, or through, one or more of its Affiliates. Therefore, the term “Party” (or\n“Parties”) or MPM or MSC in this Agreement shall mean the applicable Party and its respective Affiliates, as the context requires. As an exception,\nthe foregoing shall not apply to Section 7.2 since it is intended that only MPM or MSC shall become owners of the subject matter, materials and/or\nproducts contemplated therein.\nConfidential\n4\n3. Development Program. During the life of this Agreement, it is anticipated that the Parties will meet from time to time to explore\nopportunities to collaborate with each other under a Development Program to develop new products and/or technology that could potentially benefit\nthe Parties. If, as a result of these meetings, the Parties mutually agree to pursue a Development Program, the Parties will work in cooperation,\nthrough the Steering Committee or as otherwise agreed by the Parties, to define goals and objectives of such Program and, thereafter, the scope of\nwork, milestones and timelines of the Development Program. The Parties shall also define the roles and responsibilities of each Party, and nominate\nprogram leaders from each of their respective organizations, as further described in Section 6, who will work with each other to oversee and manage\nthe establishment and implementation of the Development Program and jointly develop protocols for the exchange of experimental plans, technical\nprogram data and reporting periodic progress reviews. All of the foregoing activities, etc. will be described in a separate written Development\nProgram Form, substantially in the form attached hereto as Exhibit A (Development Program Form). Each Development Program Form shall be\nsigned by a duly authorized representative of each Party and maintained by the Parties in a separate database and/or in the file where this Agreement\nis maintained. Each Party agrees to regularly share data and information generated as a result of each Development Program undertaken hereunder,\nand to promptly notify the other Party of any new Development Program Technology, including without limit, any Invention conceived or reduced to\npractice in the course of a Development Program. For the purpose of clarity, in the event that any joint development activity or initiative is carried\nout by the Parties and, in so doing, the Parties fail to complete and execute a Development Program Form, such activity will nevertheless be subject\nto all of the terms and conditions of this Agreement and such failure will not relieve a Party or the Parties from complying with this Agreement.\n4. Information Sharing.\n4.1 In order to coordinate and direct their respective research and development activities under any Development Program, the Parties,\nthrough their respective program leaders, will meet on a monthly basis, or as otherwise deemed necessary by the Parties. During these monthly\nmeetings, the Parties will review the activities undertaken in connection with any ongoing Development Programs, report on the progress\ntowards achieving any established goals and objectives and/or any perceived challenges or impediments to achieving such objectives, discuss\nthe status of the scope of work and any associated milestones and timelines and make adjustments to the scope of work, milestones and/or\ntimelines as deemed necessary or beneficial. It is expected that these monthly meetings will take place by telephone unless the Parties mutually\nagree otherwise.\n4.2 The Parties shall jointly prepare a written report every three (3) months during the life of any Development Program that outlines all\nresearch and development activities that have transpired, the current status of such activities, any relevant conclusions, future activities under\ncontemplation, and any proposed changes to the R & D scope, milestones and/or timelines. The report shall also include a clear explanation\nand documentation of any inventions, discoveries, improvements, etc. that have been made, as well as any conception records generated in the\nmanner set forth in Section 7.9 (d).\n5. Financial Terms. Unless otherwise decided by the Steering Committee and subsequently memorialized in a writing signed by the Parties’\nrespective duly authorized representatives, the Parties shall bear their respective costs relating to performance under this Agreement without any\nfinancial obligation to the other and neither Party shall be entitled to any reimbursement from the other Party for costs it incurs in support of any\nDevelopment Program.\nConfidential\n5\n6. Management of Joint Development Activities/Steering Committee.\n6.1 Both MPM and MSC would each appoint one (1) individual from their respective organizations to act as a Program Leader for each\nDevelopment Program that is pursued under this Agreement. The Program Leaders so appointed would be responsible for: (i) establishing an R\n& D team (composed of personnel having the requisite level of experience to properly and efficiently implement the Development Program);\n(ii) developing an R & D plan pursuant to the general guidelines set forth in Sections 2 and 3; (iii) overseeing the day-to-day management and\nimplementation of the Development Program on behalf of MPM and MSC; and (iv) coordinating the exchange of routine Development\nProgram-related communications between MPM and MSC. The Program Leaders would be further responsible for establishing a patent\ndevelopment strategy including, among other things, patent procurement targets, to protect all Development Program Technology. In addition,\nthe Program Leaders will prepare an outline detailing proposed ownership of patents and patent applications, consistent with the ownership\nprovisions of Section 7.2, that are likely to evolve from the Development Program on or before six (6) months from the date of commencement\nof the Development Program in question. This outline will, in turn, be reviewed by the Steering Committee and adopted or modified, as the\nSteering Committee deems appropriate. As a Development Program approaches its latter stages and the Parties have established an\nunderstanding of the potential value associated with the Development Program Technology and other work product resulting from a\nDevelopment Program, the Program Leaders will prepare a proposed business model or value-sharing proposition for consideration by the\nSteering Committee. In the event that the Parties decide, by mutual agreement or Steering Committee determination, that a particular\nDevelopment Program would be executed and managed more efficiently by one of the Program Leaders due to his or her prior experience in\nthe targeted subject matter area, the Parties, or the Steering Committee, may nominate one of the Program Leaders to serve as the managing\nProgram Leader for that particular Development Program.\n6.2 Both MPM and MSC would each appoint three (3) individuals from their respective organizations to form a Steering Committee; one\n(1) individual should be a senior-level representative selected from the marketing/commercial group, one (1) individual should be a senior-\nlevel representative selected from the technology group and the third individual can be selected as a Party deems appropriate. In general, the\nfunctions of the Steering Committee would be to provide strategic direction to the Program Leaders and make informed decisions regarding\nthe direction, management and implementation of the Development Program(s). Each Party, in its sole discretion, would be permitted to\nchange its own Steering Committee members by providing written notice to the other Party, along with an explanation of why the change is\nbeing made.\n6.3 The Steering Committee would meet in person at least two (2) times per year or as otherwise deemed necessary. The location of\nmeetings would alternate between MPM and MSC host facilities. Alternatively, the Steering Committee, at its discretion, could conduct these\nmeeting via telephone. Steering Committee decisions would become effective with a unanimous vote. Each member of the Steering Committee\nwould have one (1) vote.\n6.4 In addition to addressing the matters set forth in Sections 3, 5, 6.1, 6.2 and 7.2 (c), or by way of further clarifying such matters, the\nSteering Committee would consider and reach decisions on the following matters:\nConfidential\n6\n(a) Whether to accept, reject or modify R & D plans or Development Programs proposed by the Program Leaders;\n(b) Whether to continue or modify ongoing Development Programs;\n(c) Approve or reject key milestone events for Development Programs, as established by the Program Leaders, including anticipated\ndeliverables and dates of completion and revise and/or add secondary milestones as necessary;\n(d) Whether to procure resources that are needed from time to time in the execution of any Development Program;\n(e) Discuss and decide upon commercialization options and strategies for exploiting any technologies, products, systems, materials and\nthe like that result from work performed under a Development Program and provide specific guidance and direction to MPM and MSC for\nexecuting any established commercialization strategies; and\n(f) Make reasonable determination of Royalty Obligations as contemplated under this Agreement.;\n7. Intellectual Property Ownership, Commercial Principles and Licenses.\n7.1 Independent Technology. Each Party acknowledges and agrees that, as between the Parties, each Party is and shall remain for all\npurposes hereunder the sole and exclusive owner of all right, title and interest in and to its Independent Technology and all associated\nIntellectual Property Rights. Each Party acknowledges that it acquires no rights under this Agreement to the other Party’s Independent\nTechnology or associated Intellectual Property Rights other than the limited licenses expressly granted in this Agreement.\n7.2 Ownership of Development Program Technology and Related Intellectual Property Rights. Unless otherwise agreed in writing, and\nsubject to Section 7.1, ownership of Development Program Technology and all Intellectual Property Rights derived therefrom shall be as\nfollows:\n(a) MPM. As between the Parties, MPM shall own all Development Program Technology relating to (i) MPM Materials, (ii) all know-\nhow and processes relating to the manufacture of MPM Materials, (iii) all analytical and/or quality control techniques used in the\nConfidential\n7\nevaluation of MPM Materials, (iv) all uses of any MPM Materials (without use of any MSC Material) in any and all end-use applications, and\n(v) any and all products, materials, formulations and the like that are made from or include an MPM Material (without the use or inclusion of\nany MSC Material). MPM shall also own all Intellectual Property Rights derived from any of the foregoing in (i) through (v), developed\npursuant to this Agreement as Development Program Technology, regardless of inventorship. All of the foregoing in (i) through (v) shall be\nreferred to as “MPM Work Product.” MSC hereby assigns to MPM the entire right, title and interest in and to the MPM Work Product,\nincluding without limit, any Inventions and Intellectual Property Rights derived from the Development Program Technology associated with or\napplicable to such MPM Work Product.\n(b) MSC. As between the Parties, MSC shall own all Development Program Technology relating to (1) MSC Materials, (ii) all know-how\nand processes relating to the manufacture of MSC Materials, (iii) all analytical and/or quality control techniques used in the evaluation of MSC\nMaterials, (iv) all uses of any MSC Materials (without the use or inclusion of any MPM Material) in any and all end-use applications, and\n(v) any and all products, materials, formulations and the like that are made from or include an MSC Material (does not include an MPM\nMaterial). MSC shall also own all Intellectual Property Rights derived from any of the foregoing in (i) through (v), developed pursuant to this\nAgreement as Development Program Technology, regardless of inventorship. All of the foregoing in (i) through (v) shall be referred to as\n“MSC Work Product.” MPM hereby assigns to MSC the entire right, title and interest in and to the MSC Work Product, including without\nlimit, any Inventions and Intellectual Property Rights derived from the Development Program Technology associated with or applicable to\nsuch MPM Work Product.\n(c) Ownership Requiring A Steering Committee Decision . Subject to Section 7.2(e), the Steering Committee shall decide, on a case-by -\ncase basis, which Party owns, as between the Parties, Development Program Technology relating to: (i) any product, material, composition of\nmatter, system or the like that includes an MPM Material and an MSC Material (“Hybrid Product”), (ii) all know-how, processes, etc., relating\nto the manufacture of any Hybrid Product, (iii) all analytical and/or quality control techniques used in the evaluation of any Hybrid Product,\n(iv) any and all end-use applications of any Hybrid Product, provided that such end-use applications have never been commercially exploited\nby either of the Parties, or have been commercially exploited by both of the Parties, prior to the Effective Date, (v) any and all end-use\napplications of products, materials, formulations and the like that are made from or include any Hybrid Product, provided that such end-use\napplications have never been commercially exploited by either of the Parties, or have been commercially exploited by both of the Parties, prior\nto the Effective Date and (vi) Shared Development Program Technology. All of the foregoing in (i) through (vi) shall be referred to as “Hybrid\nWork Product.” An owner of any Hybrid Work Product as decided by the Steering Committee shall also own all of the Intellectual Property\nRights in the Development Program Technology derived from that Hybrid Work Product and the non-owning Party hereby assigns to the\nowning Party the entire right, title and interest in and to that Hybrid Work Product, including without limit, any Inventions and Intellectual\nProperty Rights derived from the Development Program Technology associated with or applicable to such Hybrid Work Product.\n(d) Joint Ownership As Default Decision. In the event that the Steering Committee is unable to reach a decision regarding the ownership\nof Development Program Technology and related Intellectual Property Rights resulting from Hybrid Work Product as contemplated in\nSection 7.2 (c) at the Steering Committee meeting that the particular ownership issue is presented for consideration, or within thirty (30) days\nthereafter should the Steering\nConfidential\n8\nCommittee decide that it needs more time to reach a definitive decision, then the Parties shall jointly own that Hybrid Work Product and such\nrelated Intellectual Property Rights until a definitive decision is reached, provided that, during any period of joint ownership, neither Party will\n(i) exercise such joint ownership in a way that is inconsistent with the intent and the terms and conditions of this Agreement, (ii) assign or\ntransfer title to any such work product or Intellectual Property Rights without the other Party’s express prior written consent, or (iii) license or\notherwise provide such Hybrid Work Product or Intellectual Property Rights to any third party, including without limitation any competitor of\nthe other Party or any infringer or potential infringer which the other Party is pursuing or plans to pursue. In the event that a definitive decision\nis reached with respect to the ownership of the subject Hybrid Work Product and related Intellectual Property Rights derived from\nDevelopment Program Technology, the owning party will own such Hybrid Work Product and such related Intellectual Property Rights under\nthe terms and conditions of this Agreement. In the event that a definitive decision assigning ownership of any Hybrid Work Product and related\nIntellectual Property Rights derived from Development Program Technology to one of the Parties is never reached, then the Parties will\ncontinue to jointly own such Hybrid Work Product and related Intellectual Property Rights derived from Development Program Technology\nsubject to the terms of this Section 7.2 (d).\n(e) Other Ownership Provisions. As between the Parties, the Previously Commercialized Party shall own all Development Program\nTechnology relating to the Prior End-Use Work Product in the end-use application that it has commercialized prior to the Effective Date. An\nowner of Prior End-Use Work Product shall also own all of the Intellectual Property Rights in the Development Program Technology derived\nfrom that Prior End-Use Work Product and the non-owning Party hereby assigns to the owning Party the entire right, title and interest in and to\nthat Prior End-Use Work Product, including without limit, any Inventions and Intellectual Property Rights in the Development Program\nTechnology associated with or applicable to such Prior End-Use Work Product.\n7.3 Research Licenses.\n(a) Subject to the terms and conditions of this Agreement, each Party hereby grants to the other Party and its Affiliates, on behalf of itself\nand its Affiliates, a non-exclusive, royalty-free, worldwide, revocable, limited license to use, during the term of this Agreement, the\nIndependent Technology of the owner Party, solely to permit the other Party’s (by itself and/or through its Affiliates’) performance of research\nand development activities in connection with the execution and implementation of any Development Program under this Agreement and/or to\npursue by itself, with no third Person (not including Affiliates) involvement, independent, internal research and development initiatives outside\nthe scope of this Agreement. In the event that a Party’s and/or its Affiliates’ (“Licensor Party”) Independent Technology is used under the\nlicense granted in this Section 7.3 (a) by the other Party and/or its Affiliates (“Licensee Party”) to pursue independent research and\ndevelopment initiatives outside the scope of this Agreement and such initiatives result in the creation or development of any Invention and/or\nTechnology, the Licensee Party hereby grants and agrees to grant to the Licensor Party, a non-exclusive, royalty-free, worldwide license under\nsuch Invention and/or Technology, as well as any Intellectual Property Rights derived from such Invention and/or Technology.\n(b) Subject to the terms and conditions of this Agreement, each Party hereby grants to the other Party and its Affiliates, on behalf of itself\nand its Affiliates, a non-exclusive, royalty-free, worldwide, revocable, limited license to use, during the term of this Agreement, the\nIntellectual Property Rights derived from the Development Program Technology directly related to the MPM Work Product, MSC Work\nProduct, Hybrid Work Product and Prior End-Use Work\nConfidential\n9\nProduct (as the case may be) of the owner Party, solely to permit the other Party’s performance (by itself and/or through its Affiliates) of\nresearch and development activities in connection with the execution and implementation of any Development Program under this Agreement\nand/or to pursue by itself, with no third Person (not including Affiliates) involvement, independent, internal research and development\ninitiatives outside the scope of this Agreement. In the event that a Party’s and/or its Affiliates’ (“Licensor Party”) Independent Technology is\nused under the license granted in this Section 7.3 (b) by the other Party and/or its Affiliate (“Licensee Party”) to pursue independent research\nand development initiatives outside the scope of this Agreement and such initiatives result in the creation or development of any Invention\nand/or Technology, the Licensee Party hereby grants and agrees to grant to the Licensor Party, a non-exclusive, royalty-free, worldwide license\nunder such Invention and/or Technology, as well as any Intellectual Property Rights derived from such Invention and/or Technology\n7.4 Commercial Principles.\nEach Party agrees to use commercially reasonable efforts to develop, implement and follow collaborative strategies for the commercialization\nof any MSC Material, MPM Material and/or Hybrid Product. The purpose of the foregoing obligation is to provide each Party with an equitable and\nbalanced opportunity to derive value and monetary return from opportunities that might result from any work or collaboration done under this\nAgreement. One component of any evaluation of a collaborative commercial strategy will include an analysis of the value proposition associated\nwith the joint pursuit of a commercial opportunity by the Parties. One such consideration is the Royalty Obligations that would be associated with\nthe commercial licenses granted under Sections 7.5 through 7.8, which will be negotiated and agreed to by the respective representatives of the\nParties through the Steering Committe in arm’s-length good faith negotiations. Each Party acknowledges and agrees that the agreement on the\nRoyalty Obligations is a condition precedent to the effectiveness of the commercial licenses granted under Sections 7.5 through 7.8 and the licensee\nParty will pay the Royalty Obligations during the term of such licenses. It is expected that the Steering Committee members will play a primary role\nin fulfilling the obligations under this Section 7.4 on behalf of their respective organizations. If, after using commercially reasonable efforts to satisfy\nthese obligations, the Parties decide that it is not commercially feasible or desirable to pursue a commercial opportunity jointly, each Party shall be\npermitted to separately pursue the opportunity. For the purpose of clarity, the Parties do not intend for anything contained in this Section 7.4 to create\nany partnership, agency, joint venture or the like between the Parties. Indeed, the Parties intend, at all times, to maintain their separate legal identities\nas they work together under this Agreement.\n7.5 MPM Licenses To MSC.\n(a) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MSC, MPM\nagrees to grant and does hereby grant to MSC and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, MPM Work Product to make, have made, use,\nsell, offer to sell and import MSC Materials and/or Hybrid Products, provided that this license shall not become effective and MSC shall not\nactually have any licensed rights under this Section 7.5 (a) until the applicable Royalty Obligations have been agreed to by the Parties as\nprovided in Section 7.5. This license does not grant MSC any sublicense rights and does not include any license to MPM’s Intellectual\nConfidential\n10\nProperty Rights that relate to MPM’s Independent Technology. MPM agrees not to enforce any infringement claim of the Intellectual Property\nRights licensed under this Section 7.5 (a) based on a use of MSC’s Materials and/or Hybrid Products by a customer who purchases MSC\nMaterials and/or Hybrid Products from MSC.\n(b) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MSC, MPM\nagrees to grant and does hereby grant to MSC and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, Prior End-Use Work Product to use a Hybrid\nProduct, and/or any products, materials, formulations and the like that are made from or include any Hybrid Product, provided that this license\nshall not become effective and MSC shall not actually have any licensed rights under this Section 7.5 (b) until the applicable Royalty\nObligations have been agreed to by the Parties as provided in Section 7.4. This license also includes a right for MSC to sublicense the licensed\nright of use to its customers.\n(c) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MSC, MPM\nagrees to grant and does hereby grant to MSC and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Independent Technology to make, have made, use, sell, offer to sell and import MSC Materials and/or\nHybrid Products, provided that this license shall not become effective and MSC shall not actually have any licensed rights under this\nSection 7.5 (c) until the applicable Royalty Obligations have been agreed to by the Parties as provided in Section 7.4. MPM agrees not to\nenforce any infringement claim of the Intellectual Property Rights licensed under this Section 7.5 (c) based on a use of MSC’s Materials and/or\nHybrid Products by a customer who purchases MSC Materials and/or Hybrid Products from MSC.\n7.6 MSC Licenses To MPM.\n(a) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MPM, MSC\nagrees to grant and does hereby grant to MPM and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, MSC Work Product to make, have made, use,\nsell, offer to sell and import MPM Materials and/or Hybrid Products, provided that this license shall not become effective and MSC shall not\nactually have any licensed rights under this Section 7.6 (a) until the applicable Royalty Obligations have been agreed to by the Parties as\nprovided in Section 7.4. This license does not grant MPM any sublicense rights and does not include any license to MSC’s Intellectual\nProperty Rights that relate to MSC’s Independent Technology. MSC agrees not to enforce any infringement claim of the Intellectual Property\nRights licensed under this Section 7.5 (a) based on a use of MPM’s Materials and/or Hybrid Products by a customer who purchases MPM\nMaterials and/or Hybrid Products from MPM.\n(b) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MPM, MSC\nagrees to grant and does hereby grant to MPM and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, Prior End-Use Work Product to use a Hybrid\nProduct, and/or any products, materials, formulations and the like that are made from or include any Hybrid Product, provided that this license\nshall not become effective and MPM shall not actually have any licensed rights under\nConfidential\n11\nthis Section 7.6 (b) until the applicable Royalty Obligations have been agreed to by the Parties as provided in Section 7.4. This license also\nincludes a right for MPM to sublicense the licensed right of use to its customers.\n(c) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MPM, MSC\nagrees to grant and does hereby grant to MPM and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Independent Technology to make, have made, use, sell, offer to sell and import MPM Materials and/or\nHybrid Products, provided that this license shall not become effective and MPM shall not actually have any licensed rights under this\nSection 7.5 (c) until the applicable Royalty Obligations have been agreed to by the Parties as provided in Section 7.4. MSC agrees not to\nenforce any infringement claim of the Intellectual Property Rights licensed under this Section 7.6 (c) based on a use of MPM’s Materials\nand/or Hybrid Products by a customer who purchases MPM Materials and/or Hybrid Products from MPM.\n7.7 Cross Licenses\n(a) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by the licensee Party\nunder this Section, each Party agrees to grant and does hereby grant to the other Party and its Affiliates, on behalf of itself and its Affiliates, a\nnonexclusive, royalty-bearing, worldwide, revocable license under its Intellectual Property Rights derived from, and only from, Hybrid Work\nProduct that it owns under this Agreement to make, have made, use, sell, offer to sell and import Hybrid Products, provided that this license\nshall not become effective and neither licensee Party shall actually have any licensed rights under this Section 7.7(a) until the applicable\nRoyalty Obligations have been agreed to by the Parties as provided in Section 7.4. This license does not grant either Party any sublicense\nrights and does not include any license to either Party’s Intellectual Property Rights that relate to a granting Party’s Independent Technology.\nEach Party agrees not to enforce any infringement claim of the Intellectual Property Rights licensed under this Section 7.7 (a) based on a use\nof Hybrid products by a customer who purchases Hybrid Products from the licensee Party.\n7.8 Other Additional License. While the Parties have endeavored to include all licensing arrangements in this Agreement that are deemed\nnecessary or desirable to allow each Party to conduct the activities contemplated in this Agreement or as a result of this Agreement, the Parties\nrecognize that there may be a need to subsequently establish other licensing arrangements between the Parties. In the event that a Party decides\nthat it is necessary or desirable to enter into one or more licensing arrangements not included in this Agreement, each Party agrees to enter into\ngood faith negotiations with each other for such licenses. Any additional licenses shall only become effective by way of a written amendment\nto this Agreement signed by a duly authorized representative of each Party.\n7.9 Patent Procurement Procedures.\n(a) An owner of the MPM Work Product, MSC Work Product, Hybrid Work Product and Prior End-Use Work Product, as set forth\nabove, shall have the right, in its own discretion, to file patent applications in the United States and in any country of the world outside the\nUnited States in its own name. Each Party, at the request of the other Party, shall exercise reasonable efforts to support the filing of patent\napplications by the other Party in their respective technical fields of ownership. Such efforts shall include support by inventors and\nConfidential\n12\nexecution of all legal documents (applications, assignments and declarations). All costs of preparing, filing and prosecuting patent applications\nowned by a Party, and of maintaining such Patents, shall be borne by said Party. In the event a Party decides against filing a patent application\ndirected to any Development Program Technology that it owns under this Agreement and, additionally, the owning Party does not wish to\nmaintain such Development Program Technology as a trade secret, the other non-owning Party shall have the right to take ownership of such\nDevelopment Program Technology for no additional consideration, and agrees that it shall bear all costs associated with the procurement and\nmaintenance of any patents. Analogously, if the owner of a patent directed to Development Program Technology resulting from this Agreement\nis no longer interested in maintaining such patent, the owner will provide the other Party with reasonable advanced notice of its intent to allow\nthe patent to lapse to give the other Party the opportunity to pay the maintenance fees and assume ownership of the patent in question for no\nadditional consideration. Also, if a Party decides against filing a patent application directed to Development Program Technology in a\nparticular country or countries that are of interest to the other Party, the owning Party will allow the other Party to effectuate the filings in those\nother countries, at the other Party’s expense, and the other Party will assume ownership of that patent application and any patent(s) issuing\ntherefrom without the need to pay any additional consideration. In the event that a transfer by one Party to the other Party occurs under this\nSection 7.9 (a), the transferor shall retain a royalty-free, worldwide, nonexclusive, irrevocable license under the transferred Development\nProgram Technology and/or Intellectual Property Rights in question.\n(b) In those instances where each Party will be filing a patent application that will disclose and/or claim subject matter that is related or\nsimilar to the subject matter presented in the other Party’s patent application, the Parties agree to file their respective priority patent\napplications on the same day. In order to facilitate and execute this requirement, the Parties’ patent counsel will coordinate and implement the\nappropriate actions.\n(c) The Parties agree that when filing patent applications directed to their respective areas of technical subject matter, they will not claim\nsubject matter owned by the other Party, without receiving the other Party’s written consent.\n(d) A separate record of conception shall be prepared for each invention relating to Technology conceived under any Development\nProgram. Each conception record shall include a proper description of the conceived invention. The conception record shall also include a\ndescription of an operative method of making the invention (where appropriate), as well as a description of the utility of the invention. The\nconception record, including the foregoing descriptions, shall be read by one having a level of skill in the art in the technical field in question\nrequired to understand the substance of such record (“Corroborating Witness”). Finally, the conception record shall be signed and dated by the\nperson(s) who conceived the invention and by the Corroborating Witness. Subject to Section 8 (where appropriate), a copy of each conception\nrecord generated under this Agreement shall be provided to the other Party for review, along with the written reports contemplated in\nSection 4.2 .\n(e) The Parties agree and acknowledge that this Agreement is and shall be treated as a “joint research agreement” within the meaning of\nTitle 35 U.S .C. §103(c). The Parties agree to permit one another the right to disclose to the United States Patent and Trademark Office\n(“USPTO”) and other foreign patent prosecution offices, where appropriate or necessary, the existence and identifying information of patent\napplications that are filed by the other Party; and the existence of this Agreement.\nConfidential\n13\n(f) While either Party may rely upon Title 35 U.S .C. §103(c) to overcome a prior art issue or to overcome a rejection imposed by the\nUSPTO, so that the Party disqualifies the other Party’s patent or patent application as prior art, the Parties agree to use reasonable efforts to\ntraverse a rejection by the USPTO without resorting to Title 35 U.S .C. §103(c). Should a Party ultimately elect, at its sole option and\ndiscretion, to rely upon Title 35 U.S.C. §103(c), the Parties shall cooperate in obtaining and filing any and all required papers, documents,\napprovals, consents and/or authorizations and including amending patent applications to identify the Parties as necessary to take advantage of\nTitle 35 U.S .C. §103(c).\n(g) The Parties agree that, if a double patenting issue arises in either a reexamination proceeding, an issued patent, or in a patent\napplication that has been filed under this Agreement, the Parties shall use reasonable efforts to address the issue without filing a terminal\ndisclaimer. However, if a Party ultimately determines, at its sole option and discretion, that the best course of action for that Party is to file a\nterminal disclaimer, the Parties agree to sign, and otherwise cooperate in the execution and filing, of a terminal disclaimer that complies with\n37 C.F.R. §1.321, and any other similar USPTO rule or regulation then in effect. The Parties recognize that filing such a terminal disclaimer\nprohibits the Parties from separately enforcing the U.S . patents that issue from the involved applications or the involved patents (hereinafter\ncollectively “Involved U.S. Patents”). Should issues of enforcement arise with respect to the Involved U.S . Patents, the Parties agree to\ndiscuss, in good faith, terms and conditions for jointly enforcing such Involved U.S. Patents.\n7.10 Further Acts and Assistance. The Parties agree to perform, during and after the term of this Agreement, all customary acts that are\nreasonably necessary or desirable to permit and assist the other in obtaining, perfecting and enforcing the full benefits, enjoyment, rights and\ntitle in the Intellectual Property assigned to the other Party under this Agreement. In the event that it becomes necessary to compensate any\nemployee of MSC or MPM who invented any Invention or Intellectual Property Rights, both MPM and MSC shall be obligated to compensate\nits own employees and shall have no obligation to compensate any of the other Party’s employees.\n8. Confidential Information.\n8.1 Each Party will maintain in strict confidence all Confidential Information received from the other Party. Each Party agrees that it will\nnot use, disclose to any third Person or grant use of such Confidential Information except to the extent required to achieve the Purpose or as\notherwise authorized in advance by the other Party in writing. Each Party agrees to use at least the same standard of care as it uses to protect its\nown confidential information of a similar nature to ensure that its employees do not disclose or make any unauthorized use of such\nConfidential Information, but in no case less than a reasonable standard of care. Each Party will disclose the other Party’s Confidential\nInformation only to those of such Party’s employees, and subject to the other Party’s prior written approval, consultants and contractors who\nneed to know such information to assist the Party in achieving the Purpose. Each Party certifies that each such employee, consultant and\ncontractor will have agreed in writing, either as a condition to employment or in order to obtain the other Party’s Confidential Information, to\nbe bound by confidentiality terms and conditions substantially similar to those terms and conditions applicable to each Party under this\nAgreement. Each Party guarantees that any of its employees, consultants, contractors, etc. that receive the other Party’s Confidential\nInformation hereunder will abide by the confidentiality and limited use obligations undertaken by a receiving Party under this Agreement.\nEach Party will promptly\nConfidential\n14\nnotify the other Party upon discovery of any unauthorized use or disclosure of such Party’s Confidential Information.\n8.2 The Parties agree that the existence of this Agreement and its terms will also be considered Confidential Information and agree not to\ndisclose the terms of this Agreement to a third Person without the prior written consent of the other Party, except (i) as required to enforce the\nterms of this Agreement, (ii) to financial institutions, accountants, advisors and counsel or (iii) as required by statute, regulation or the order of\na court of competent jurisdiction. A disclosure of any Confidential Information (i) in response to a valid order by a court or other governmental\nbody or (ii) as otherwise required by law will not be considered to be a breach of this Agreement or a waiver of confidentiality for other\npurposes; provided, however, that the Party making such disclosure will provide prompt prior written notice thereof to the owner Party to\nenable the owner Party to seek a protective order or otherwise prevent such disclosure.\n8.3 The foregoing obligations of confidentiality in this Section 8 will not apply to the extent that it can be established by the receiving\nParty by competent proof that such Confidential Information: (i) was generally available to the public or otherwise part of the public domain at\nthe time of disclosure to the receiving Party; (ii) became generally available to the public or otherwise part of the public domain after the\nowner Party disclosed such information to the receiving Party, other than through any act or omission of the receiving Party in breach of this\nSection 8, or (iii) was independently created or developed by such Party without reference to the Confidential Information of the other Party.\n8.4 A Party that receives product or material samples from the other Party shall not reverse engineer or analyze samples for chemical or\nstructural composition without the prior written consent of the disclosing Party. The results of all analyses of samples will be regarded as\nConfidential Information of the disclosing Party and will be treated by the receiving Party with the same strict confidentiality and restrictions\non limited-use and disclosure as the other Confidential Information referred to above. The receiving Party will provide the disclosing Party\nwith a written summary of these analyses.\n8.5 Publicity. Except as otherwise expressed in this Agreement, neither Party shall, without the prior written consent of the other, make\nany news release, public announcement, or other disclosure to any third Person or any public denial or public confirmation of the existence of\nthis Agreement, any disclosure of the Parties’ working together or any other fact concerning, arising out of or in connection with this\nAgreement, the terms or provisions hereof or any subsequent arrangement(s) between the Parties concerning any activities hereunder. Each\nParty additionally agrees that the name of the other Party, and their respective employees’ names, will not be used for purposes of advertising\nor publicity without the other Party’s prior written consent.\n8.6 Publications. Each Party additionally agrees that in order to safeguard patent rights, each Party, upon the request of the other, will\ndelay any public disclosure of any Invention generated in the course of a Development Program under this Agreement for a time period of up\nto three (3) months from the date of disclosure to the other Party in order to permit the filing of patent application(s). Each Party agrees to\ndisclose the filing of any patent application arising from this Agreement to the other, permit the other Party’s review thereof, and to cooperate\nin the filing of any such patent applications desired by the disclosing Party as set forth in Section 7.9 hereof. Should any such patent\napplication of one Party contain any\nConfidential\n15\nConfidential Information of the other Party, then the Parties will resolve prior to filing whether such information is to be deleted from such\napplication before its filing.\n9. Warranties and Liability.\n9.1 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY\nREPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY\nWARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT WITH RESPECT\nTO THE SUBJECT MATTER OF THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, CONFIDENTIAL INFORMATION,\nINTELLECTUAL PROPERTY RIGHTS, TECHNOLOGY, DEVELOPMENT PROGRAM WORK PRODUCT, INDEPENDENT\nTECHNOLOGY, MATERIALS, PRODUCTS AND THE LIKE, OR ANY PORTION OF COMPONENT THEREOF.\n9.2 IN NO EVENT SHALL A PARTY BE LIABLE FOR OR OBLIGATED IN ANY MANNER TO PAY ANY CONSEQUENTIAL,\nSPECIAL, PUNITIVE OR INDIRECT DAMAGES TO THE OTHER PARTY OR TO ANY OF ITS AGENTS, EMPLOYEES,\nCONTRACTORS, REPRESENTATIVES OR AFFILIATES FOR BREACH OF ANY PROVISIONS OF THIS AGREEMENT.\n10. Term and Termination.\n10.1 Term. Unless earlier terminated pursuant to Section 10.2 or 10.3, this Agreement begins on the Effective Date and shall continue for\na period of twenty (20) years, which term may be extended by the Parties upon mutual written agreement.\n10.2 Termination for Cause. If either Party materially breaches this Agreement, the non-breaching may terminate this Agreement or, if\napplicable, a particular Development Program, by written notice; provided, however, that the written notice clearly describes the nature of the\nalleged breach, the events and circumstances that gave rise to the alleged breach and a clear explanation of whether this Agreement, a\nparticular Development Program or both are being terminated. No termination under this Section 10.2 will be effective until the non-breaching\nParty provides written notice of such breach to the other Party and such Party fails to cure such breach within thirty (30) days of such notice.\nAny termination shall become effective at the expiration of such thirty (30) day notice period. Notice of termination for cause will be in\nwriting and sent by certified mail, postage prepaid, return receipt requested. If a particular Development Program is terminated without the\ntermination of the entire Agreement, this Agreement will be terminated only with respect to such Development Program and will remain in\neffect with respect to the then outstanding Development Programs in accordance with their terms and or any other Development Programs the\nParties decide to pursue under this Agreement.\n10.3 Termination for Change of Control. If a Party undergoes a Change of Control, unless such event has been consented to in writing by\nthe other Party under Section 12.2, the other Party may terminate this Agreement immediately upon written notice.\n10.4 Effect of Termination.\nConfidential\n16\n(a) Upon any termination or expiration of this Agreement, all rights and obligations granted to either Party under this Agreement will\nimmediately terminate, except as provided in Section 10.5 and that Sections 8 and 9 will survive in accordance with their terms. Upon any\ntermination or expiration of this Agreement, each Party will cease all use of and return the other Party’s property and Confidential Information,\nexcept for one archival copy or to the extent such property or Confidential Information is needed to be retained for a Party to exercise any\nsurviving rights provided under Section 10.5 .\n(b) There may be one or more Development Programs pending at the time when notice of termination of this Agreement is first given. As\nof the date of receipt of that notice, each Party may decide to discontinue disclosing Confidential Information relating to its Independent\nTechnology to the other Party for the pending Development Programs; however, except in the case of a termination the Development Program\nin question or the entire Agreement, the Parties agree to work together diligently to bring each pending Development Program to a logical and\norderly close. Among other things, the Parties shall meet promptly thereafter in order to (a) prioritize work during the remaining term of each\nDevelopment Project, and (b) agree upon a reasonable time frame for the Parties to diligently complete such Development Programs on which\nthe Parties are close to completion. The Parties agree that their cooperative efforts from that time forward shall be focused to accomplish the\nagreed work, even if the work extends for up to one hundred and eighty (180) days beyond the noticed termination date.\n10.5 Survival. Nothing herein shall be construed to release any liability or obligation of either Party to the other for acts or omissions\nprior to the termination or expiration of this Agreement. Without limiting the foregoing:\n(a) If a Party receiving commercial licenses under Sections 7.5 through 7.8 (“Licensee Party”) terminates under Section 10.2 for the\nuncured material breach of a Party granting licenses under those Sections (“Licensor Party), the licenses and rights granted under those\nSections will survive any such termination in accordance with their terms, provided that the Licensee Party continues to pay Royalty\nObligations for such licenses. Any such licenses and rights shall survive for a period that is co-extensive with the last to expire Intellectual\nProperty Right subject to the license in question.\n(b) If Licensor Party terminates under Section 10.2 for Licensee Party’s uncured material breach, then:\n(i) The commercial licenses granted under Sections 7.5 through 7.8 will terminate and be of no further force and effect except that\nLicensee Party may continue to exercise such licenses solely as necessary to (A) continue to sell any inventory of products related to\nsuch licenses, and to manufacture and sell all products related to such licenses that are then in the process of being manufactured, for a\nperiod of no longer than six (6) months after the effective date of termination, and (B) to meet Licensee Party’s then-existing (as of the\neffective date of termination) contractual obligations to third parties, for a period of no longer than [twelve (12)] months after the\neffective date of termination, subject to payment of applicable Royalty Obligations for such licenses; and\n(ii) Upon the end of the applicable period set forth in Section 11.5(b)(i), each sublicense previously granted by Licensee Party or\nany Affiliate of such Licensee Party under this Agreement shall remain in effect and shall become a direct license of such rights by\nLicensor Party to such sublicensee, subject to such sublicensee agreeing in\nConfidential\n17\nwriting to assume Licensee Party’s terms, conditions and obligations to Licensor Party under this Agreement as they pertain to the\nsublicensed rights.\n(c) Termination or expiration of this Agreement will not relieve either Party from its payment obligations hereunder for any charges,\npayments or expenses due to the other Party that accrued prior to the termination or expiration date, and such amounts (if not otherwise due on\nan earlier date or disputed in good faith) shall be immediately due and payable on the termination or expiration date.\n11. Miscellaneous.\n11.1 Notices. All notices and requests under this Agreement (i) shall be in writing, (ii) may be delivered personally, sent by commercial\ncourier with tracking capabilities - costs prepaid, mailed by certified or registered mail—return receipt requested with postage prepaid, at the\noption of the sending Party, and (iii) shall be sent to and shall be effective on the date of recorded delivery at the receiving Party’s address for\nnotice. The initial address for notice is set forth below. Any subsequent address for notice shall be changed by notice given pursuant to this\nSection 11.1.\nIf to MSC:\nChief Technology Officer\nMomentive Specialty Chemicals Inc.\n180 East Broad Street\nColumbus, Ohio 43215\nwith a simultaneous copy to the General Counsel at the same address.\nIf to MPM:\nChief Technology Officer\nMomentive Performance Materials Inc.\n22 Corporate Woods Boulevard\nAlbany, New York 12211\nwith a simultaneous copy to the General Counsel at the same address.\n11.2 Assignment. Neither Party shall have the right to assign or transfer this Agreement or any right, obligation of performance, or\ninterest hereunder, whether voluntary or involuntary, without first receiving the other Party’s prior written consent. Any attempt at assigning or\ntransferring this Agreement in violation of this Section 1l.2 shall be invalid and void and shall have no effect.\n11.3 Waivers. No waiver by a Party of any condition or breach of any provision of this Agreement will be effective unless in writing, and\nno waiver in any one or more instances will be deemed to be a further or continuing waiver of any such condition or breach in other instances\nor a waiver of any other condition or breach of any other provision.\n11.4 Counterparts. This Agreement may be executed simultaneously in identical counterparts, each of which will be deemed an original,\nbut all of which together will constitute one and the same instrument. A facsimile transmission of the executed signature page of this\nAgreement will constitute due and proper execution of this Agreement by the Party executing the signature page.\nConfidential\n18\n11.5 Construction. The Section headings are for convenience only and will not be deemed part of this Agreement. The language of this\nAgreement will be construed according to its fair meaning. Any rule of construction resolving ambiguities against the drafting Party will not\napply in the interpretation of this Agreement. No specific representation, warranty or covenant contained in this Agreement will limit the\ngenerality or applicability of a more general representation, warranty or covenant.\n11.6 Independent Contractors. Each Party’s relationship with the other is that of an independent contractor, and nothing in this\nAgreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. Neither Party will\nbe entitled to any of the benefits that the other may make available to its employees, including, but not limited to, group health or life\ninsurance, profit sharing or retirement benefits. Neither Party is authorized to make any representation, contract or commitment on behalf of\nthe other.\n11.7 Severability. If any provision of this Agreement is unenforceable or invalid under any applicable law or is so held by applicable\ncourt decision, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will\nbe changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable\nlaw or applicable court decisions; provided, however that if the Parties are unable to so change the provision, then the affected Party may\nterminate this Agreement upon thirty (30) days notice.\n11.8 Governing Law. This Agreement and any dispute under this Agreement will be governed by and construed under the laws of the\nState of New York without regard to any of its conflict of laws principles.\n11.9 Survival. Subject to section 10.5, any provisions of this Agreement shall continue in full force and effect after termination of this\nAgreement, which are provisions that by their nature or purpose are intended to survive the termination of this Agreement.,\n11.10 Entire Understanding. This Agreement and the attached exhibits set forth the entire agreement and understanding of the Parties in\nrespect to the transactions contemplated and supersedes all prior agreements, arrangements, representations, term sheets and understandings\nrelating to the subject matter of this Agreement. This Agreement may be amended, modified or supplemented only in a writing signed by\nrespective officers of the Parties. This Agreement is not intended to confer upon any person, other than the signing Parties, any rights or\nremedies.\nConfidential\n19\nIN WITNESS WHEREOF, the authorized representatives of the Parties have signed this Agreement.\nMPM:\nMSC:\nMOMENTIVE PERFORMANCE MATERIALS INC.\nMOMENTIVE SPECIALTY CHEMICALS INC.\nBy:\nAuthorized Person\nBy:\nAuthorized Person\nPrint Name:\nPrint Name:\nTitle:\nTitle:\nDate:\nMarch 17, 2011\nDate:\nMarch 17, 2011\nConfidential\n20\nExhibit A\n(MODEL) DEVELOPMENT PROGRAM FORM\nThis Development Program Form describes the research program to be conducted by the Parties, and is governed by, is an attachment to and is,\nupon execution by the Parties, incorporated by reference into the Master Confidentiality and Joint Development Agreement by and between\nMomentive Specialty Chemicals Inc. (“MSC”) and Momentive Performance Materials Inc. (“MPM”) with an Effective Date of October 1, 2010 (the\n“Agreement.”) All the terms used in this Development Program Form shall retain the same meaning as defined in the Agreement and such\ndefinitions are incorporated herein by reference. In the event of any conflict between the provisions of the Agreement and of this Development\nProgram Form, the terms of the Agreement shall prevail. The terms and conditions of this Development Program Form are applicable solely to the\nresearch and development program described herein and in no way affect or alter the terms of any other Development Program Forms incorporated\ninto the Agreement prior to or after the Effective Date of this Development Program Form. This Development Program Form shall be effective as of\nthe date of the last signature below.\n1. Scope:\n2. Date of Program Commencement:\n3. Content and Timeline of Project:\n4. Business Units Involved in Program:\n5. Roles and Responsibilities:\n6. Key Contact Persons:\n7. Protocols for:\nA. Experimental Plans\nB. Data and Information Exchange\nC. Reporting and Periodic Progress Reports\n6. Deliverables:\nIN WITNESS WHEREOF, the authorized representatives of the Parties have signed this Agreement.\nConfidential\n21\nMPM:\nMSC:\nBy:\nBy:\nPrint Name:\nPrint Name:\nTitle:\nTitle:\nDate:\nDate:\nConfidential\n22	EX-10.2 3 dex102.htm MASTER CONFIDENTIALITY AND JOINT DEVELOPMENT AGREEMENT\nExhibit 10.2\nMASTER CONFIDENTIALITY AND JOINT DEVELOPMENT AGREEMENT\nThis Master Confidentiality and Joint Development Agreement (“Agreement”) is by and between Momentive Specialty Chemicals Inc., with a\nprincipal place of business at 180 East Broad Street, Columbus, Ohio 43215 (“MSC”), and Momentive Performance Materials Inc., with a principal\nplace of business at 22 Corporate Woods Boulevard, Albany, NY 12211 (“MPM”). The effective date of this Agreement is October 1, 2010\n(“Effective Date”).\nRECITALS\nWHEREAS, MSC makes and sells epoxy, phenolic and coating products and materials, as well as forest products, and has developed, and\ncontinues to develop, proprietary technology and intellectual property relating to such products and materials, the manufacture of such products and\nmaterials and the use of such products and materials in a wide variety of end-use applications;\nWHEREAS, MPM makes and sells silicones, quartz and ceramics products and materials, and has developed, and continues to develop,\nproprietary technology and intellectual property relating to such products and materials, the manufacture of such products and materials and the use\nof such products and materials in a wide variety of end-use applications;\nWHEREAS, MSC and MPM are Affiliates, although separate legal entities, and are both commonly indirectly owned by Momentive\nPerformance Materials Holdings LLC;\nWHEREAS, MSC and MPM mutually desire to cooperate with each other from time to time in the exchange of confidential information and\nproprietary technology and/or in the joint development of certain technology and/or products as the Parties mutually deem appropriate throughout\nthe life of this Agreement; and\nWHEREAS, in the event that new technology, products, materials and the like, including any resulting intellectual property related thereto, are\ndeveloped under this Agreement, MSC and MPM desire to set forth their respective rights regarding the ownership and use of such technology,\nproducts, materials and associated intellectual property.\nNOW, THEREFORE, in consideration of the material covenants and promises set forth herein the receipt and sufficiency of which is hereby\nagreed and acknowledged, the Parties agree as follows:\n1. Definitions.\n1.1 “Affiliate” means any entity that directly or indirectly owns, is owned by, or is under the common ownership with a Party, at any time\nduring the term of this Agreement. “Owns”, “owned” or “ownership” means direct or indirect possession of more than fifty percent (50%) of\nthe votes of holders of a corporation’s voting securities, or a comparable equity or other ownership interest in any other type of entity; provided\nthat for the purposes of this Agreement, MPM and its Affiliates shall not constitute Affiliates of MSC or its Affiliates, and vice-versa.\nConfidential 1\n1.2 “Change of Control” means the occurrence of any of the following events: (a) any sale, lease, exchange or other transfer (in one\ntransaction or a series of related transactions) of all or substantially all of the assets of either of MSC or MPM to any entity or group, together\nwith any Affiliates thereof; (b) consummation of a sale of capital stock, merger, consolidation, reorganization or other transaction (or series of\nrelated transactions) involving either of MSC or MPM following which the direct or indirect beneficial owners of the applicable Party (or any\nof them) as of the date hereof do not hold, collectively, capital stock or other securities of the surviving corporation (i) with voting power to\nelect a majority of the surviving entity’s board of directors or equivalent, or (ii) representing a beneficial interest in the surviving entity equal\nto at least a majority thereof or (c) any other transaction the result of which is that MPM shall no longer constitute an Affiliate of MSC. For\npurposes of this definition, no effect shall be given to the proviso to the definition of “Affiliate” set forth in Section 1.1.\n1.3 “Confidential Information” means any technical or commercial information or data, trade secrets, know-how, etc., of either Party or\ntheir respective Affiliates whether or not marked or stamped as confidential, including without limitation, Technology, Invention(s),\nIntellectual Property Rights, Independent Technology and any samples of products, materials or formulations including, without limitation, the\nchemical identity and any properties or specifications related to the foregoing. Any Development Program Technology, MPM Work Product,\nMSC Work Product, Hybrid Work Product, Prior End-Use Work Product and/or Shared Development Program Technology shall be\nConfidential Information of the Party that owns the subject matter under the terms set forth in this Agreement.\n1.4 “Development Program” means research and development programs that are mutually agreed upon from time to time by the Parties\nin accordance with the terms of this Agreement and described in a Development Program Form attached as Exhibit A to this Agreement.\n1.5 “Development Program Form” means the form described in Section 3.\n1.6 “Development Program Technology” means Technology that is not Independent Technology and that is conceived by at least one\nrepresentative of a Party or a Party’s Affiliates, either solely or jointly, after the Effective Date and before any expiration and/or termination of\nthis Agreement and directly attributed to work performed under any Development Program under this Agreement.\n1.7 “Effective Date” means the date first written above.\n1.8 “Hybrid Product” shall have the meaning set forth in Section 7.2 (c).\n1.9 “Hybrid Work Product” shall have the meaning set forth in Section 7.2 (c).\n1.10 “Independent Technology” means Technology and associated Intellectual Property Rights owned solely by a Party, which is\nconceived prior to the Effective Date and/or at any time outside of the course of a Development Program, provided, where such conception\noccurred after the Effective Date, the owning Party made no use of or reliance upon the other Party’s Technology for such conception or any\nsubsequent reduction to practice.\n1.11 “Intellectual Property Rights” means all worldwide utility and design patents, patent applications, and rights associated therewith,\nincluding any divisionals, continuations, continuations in part, reissues and reexaminations thereof, regardless of whether\nConfidential 2\nsuch rights arise under the law of the United States or any other state, country or jurisdiction, as well as all know-how, trade secrets,\nproprietary information, technical data and the like.\n1.12 “Invention” means any invention, improvement, know-how, development, or discovery whether patentable or not.\n1.13 “MPM Materials” means: (i) chemical substances whether molecular or formulated and whether polymeric, monomeric or\nelemental which are based on the element silicon; (ii) sealants and adhesives, and adhesion promoters; (iii) catalytic materials including,\nwithout limitation, those based on the elements or species tin, amines, nickel, platinum, titanium and palladium; (iv) urethane additives and\nformulations containing the same; (v) additives for personal care products and resulting formulations; (vi) coatings; (vii) cross-linking agents\nand coupling agents; (viii) hardcoat formulations; (viii) ceramic powders for industrial use in the manufacture of a wide variety of goods;\n(ix) thermal management products for use in heat transfer applications; (x) ceramic parts and coated articles, electric resistance heating\nelements, and related components for use in various industrial processes; (xi) fabricated articles made from fused silica, fused quartz or glass\nfor use in the semiconductor, electronics, metallurgical, thin film and other industries; (xii) ceramic heaters and heater assemblies; (xii) metal\ncarbide coatings; and (xiii) synthetic silicone dioxide and modifications thereof.\n1.14 “MPM Work Product” shall have the meaning set forth in Section 7.2 (a).\n1.15 “MSC Materials” means (i) epoxy resins curing agents and modifiers for use across a wide range of applications including coatings,\nlaminates, composites and adhesives; (ii) adhesives for use in engineered wood products; (iii) formaldehyde and derivatives including\nhexamine, methaform and urea concentrates; (iv) mortar chemicals including liquid latexes, redispersible latex powders and other additives;\n(v) moulding compounds including epoxies, phenolics, melamine-phenolics and unsaturated polyesters; (vi) resin coated proppants;\n(vii) phenolic and amino resins including phenolic novolac, resole, powder resin solutions and water-based solutions; (viii) tackifier resins and\npine chemicals for use in hot melt adhesives, road marking applications and pressure-sensitive and non-pressure-sensitive adhesives;\n(ix) textile and non-woven resins; (x) UV curable resins for fiber optic applications; (xi) VERSATIC acid and derivatives; (xii) wax products\nand additives for use in coatings, composites and gypsum panels; and (xiii) wood composite binders for use in plywood and laminated veneer\nlumber, particleboard, MDF and oriented strand board.\n1.16 “MSC Work Product” shall have the meaning set forth in Section 7.2 (b).\n1.17 “Party” or “Parties” means, subject to Section 2, either MSC or MPM individually, or both MSC and MPM, as the text would\nwarrant.\n1.18 “Person” means any individual, corporation, partnership, association, trust, governmental authority or other entity or organization.\n1.20 “Previously Commercialized Party” shall have the meaning set forth in Section 1.21.\n1.21 “Prior End-Use Work Product” means (i) Hybrid Product or (ii) the use of any products, materials, formulations and the like that are\nmade from or include any Hybrid Product, in each case that can be used in an end-use application that has been commercially exploited by one\nParty and/or a Party’s Affiliate (but not both of the Parties including their\nConfidential 3\nrespective Affiliates) prior to the Effective Date. The Party (including their respective Affiliates) who has previously commercialized such\nend-use application will be referred to as “Previously Commercialized Party”.\n1.22 “Purpose” shall have the meaning set forth in Section 2.\n1.23 “Royalty Obligations” means payment obligations, whether as up-front payments, royalties, license maintenance fees, milestone\npayments or any other consideration, for any royalty-bearing license granted in this Agreement that has been reasonably negotiated by the\nParties through arm’s-length good faith negotiation and agreement through the Steering Committee as provided in Section 7.4. In a scenario\nwhere the Parties have agreed to jointly pursue a commercial opportunity and the licensor Party has decided, in its sole discretion, that its\nparticipation in the joint opportunity will provide it with sufficient value, the licensor Party may decide, in its sole discretion, that a reasonable\nroyalty is one dollar or other nominal amount. The Royalty Obligations may be agreed upon as part of a Development Program Form, an\namendment to this Agreement or any other writing executed between the Parties.\n1.24 “Shared Development Program Technology” means Development Program Technology that (i) did not evolve into MPM Work\nProduct or MSC Work Product, (ii) is not Prior End-Use Work Product or (iii) does not meet the criteria set forth in Section 7.2(c)(i) through\n).\n1.25 “Steering Committee” means the committee described in Section 6.2.\n1.26 “Technology” means all tangible or intangible know-how, knowledge, concepts, procedures, schematics, trade secrets, technical\ninformation and data, ideas, processes, inventions, technology, discoveries, improvements, methods, compositions, formulae, techniques, test\nresults, devices, designs, and/or manufacturing specifications and procedures, strategic business information, financial information, and any\ninformation regarding sources and prices for raw materials, subassemblies, parts and manufacturing services.\n2. Agreement Subject Matter. It is expected that the Parties will be exchanging Confidential Information with each other: (i) during their\nmutual evaluation of potential opportunities to collaborate with each other in the commercial exploitation of their respective products and\ntechnologies, (ii) during any cooperative research and development of newly developed products and technologies, and (iii) during the commercial\nphase of any cooperative exploitation of a Party’s products and/or technologies. In addition, it is expected that the Parties will also exchange\nConfidential Information during the planning for and delivery of services pursuant to that certain Shared Services Agreement, effective October 1,\n2010, subscribed to by, among other parties, MPM and Hexion Specialty Chemicals Inc. (predecessor company to MSC). Accordingly, this\nAgreement sets forth the terms and conditions for the disclosure, receipt and use of the other Party’s Confidential Information and also sets forth the\nterms and conditions for any cooperative development activities that the Parties may mutually decide to pursue. All of the activities and exchanges\nof Confidential Information described in this Section 2 shall be referred to as the “Purpose.” For the purpose of clarity, each Party will be engaging\nin activities to achieve the Purpose either by itself or with the assistance of, or through, one or more of its Affiliates. Therefore, the term “Party” (or\n“Parties”) or MPM or MSC in this Agreement shall mean the applicable Party and its respective Affiliates, as the context requires. As an exception,\nthe foregoing shall not apply to Section 7.2 since it is intended that only MPM or MSC shall become owners of the subject matter, materials and/or\nproducts contemplated therein.\nConfidential 4\n3. Development Program. During the life of this Agreement, it is anticipated that the Parties will meet from time to time to explore\nopportunities to collaborate with each other under a Development Program to develop new products and/or technology that could potentially benefit\nthe Parties. If, as a result of these meetings, the Parties mutually agree to pursue a Development Program, the Parties will work in cooperation,\nthrough the Steering Committee or as otherwise agreed by the Parties, to define goals and objectives of such Program and, thereafter, the scope of\nwork, milestones and timelines of the Development Program. The Parties shall also define the roles and responsibilities of each Party, and nominate\nprogram leaders from each of their respective organizations, as further described in Section 6, who will work with each other to oversee and manage\nthe establishment and implementation of the Development Program and jointly develop protocols for the exchange of experimental plans, technical\nprogram data and reporting periodic progress reviews. All of the foregoing activities, etc. will be described in a separate written Development\nProgram Form, substantially in the form attached hereto as Exhibit A (Development Program Form). Each Development Program Form shall be\nsigned by a duly authorized representative of each Party and maintained by the Parties in a separate database and/or in the file where this Agreement\nis maintained. Each Party agrees to regularly share data and information generated as a result of each Development Program undertaken hereunder,\nand to promptly notify the other Party of any new Development Program Technology, including without limit, any Invention conceived or reduced to\npractice in the course of a Development Program. For the purpose of clarity, in the event that any joint development activity or initiative is carried\nout by the Parties and, in so doing, the Parties fail to complete and execute a Development Program Form, such activity will nevertheless be subject\nto all of the terms and conditions of this Agreement and such failure will not relieve a Party or the Parties from complying with this Agreement.\n4. Information Sharing.\n4.1 In order to coordinate and direct their respective research and development activities under any Development Program, the Parties,\nthrough their respective program leaders, will meet on a monthly basis, or as otherwise deemed necessary by the Parties. During these monthly\nmeetings, the Parties will review the activities undertaken in connection with any ongoing Development Programs, report on the progress\ntowards achieving any established goals and objectives and/or any perceived challenges or impediments to achieving such objectives, discuss\nthe status of the scope of work and any associated milestones and timelines and make adjustments to the scope of work, milestones and/or\ntimelines as deemed necessary or beneficial. It is expected that these monthly meetings will take place by telephone unless the Parties mutually\nagree otherwise.\n4.2 The Parties shall jointly prepare a written report every three (3) months during the life of any Development Program that outlines all\nresearch and development activities that have transpired, the current status of such activities, any relevant conclusions, future activities under\ncontemplation, and any proposed changes to the R & D scope, milestones and/or timelines. The report shall also include a clear explanation\nand documentation of any inventions, discoveries, improvements, etc. that have been made, as well as any conception records generated in the\nmanner set forth in Section 7.9 (d).\n5. Financial Terms. Unless otherwise decided by the Steering Committee and subsequently memorialized in a writing signed by the Parties’\nrespective duly authorized representatives, the Parties shall bear their respective costs relating to performance under this Agreement without any\nfinancial obligation to the other and neither Party shall be entitled to any reimbursement from the other Party for costs it incurs in support of any\nDevelopment Program.\nConfidential 5\n6. Management of Joint Development Activities/Steering Committee.\n6.1 Both MPM and MSC would each appoint one (1) individual from their respective organizations to act as a Program Leader for each\nDevelopment Program that is pursued under this Agreement. The Program Leaders so appointed would be responsible for: (i) establishing an R\n& D team (composed of personnel having the requisite level of experience to properly and efficiently implement the Development Program);\n(ii) developing an R & D plan pursuant to the general guidelines set forth in Sections 2 and 3; (iii) overseeing the day-to-day management and\nimplementation of the Development Program on behalf of MPM and MSC; and (iv) coordinating the exchange of routine Development\nProgram-related communications between MPM and MSC. The Program Leaders would be further responsible for establishing a patent\ndevelopment strategy including, among other things, patent procurement targets, to protect all Development Program Technology. In addition,\nthe Program Leaders will prepare an outline detailing proposed ownership of patents and patent applications, consistent with the ownership\nprovisions of Section 7.2, that are likely to evolve from the Development Program on or before six (6) months from the date of commencement\nof the Development Program in question. This outline will, in turn, be reviewed by the Steering Committee and adopted or modified, as the\nSteering Committee deems appropriate. As a Development Program approaches its latter stages and the Parties have established an\nunderstanding of the potential value associated with the Development Program Technology and other work product resulting from a\nDevelopment Program, the Program Leaders will prepare a proposed business model or value-sharing proposition for consideration by the\nSteering Committee. In the event that the Parties decide, by mutual agreement or Steering Committee determination, that a particular\nDevelopment Program would be executed and managed more efficiently by one of the Program Leaders due to his or her prior experience in\nthe targeted subject matter area, the Parties, or the Steering Committee, may nominate one of the Program Leaders to serve as the managing\nProgram Leader for that particular Development Program.\n6.2 Both MPM and MSC would each appoint three (3) individuals from their respective organizations to form a Steering Committee; one\n(1) individual should be a senior-level representative selected from the marketing/commercial group, one (1) individual should be a senior-\nlevel representative selected from the technology group and the third individual can be selected as a Party deems appropriate. In general, the\nfunctions of the Steering Committee would be to provide strategic direction to the Program Leaders and make informed decisions regarding\nthe direction, management and implementation of the Development Program(s). Each Party, in its sole discretion, would be permitted to\nchange its own Steering Committee members by providing written notice to the other Party, along with an explanation of why the change is\nbeing made.\n6.3 The Steering Committee would meet in person at least two (2) times per year or as otherwise deemed necessary. The location of\nmeetings would alternate between MPM and MSC host facilities. Alternatively, the Steering Committee, at its discretion, could conduct these\nmeeting via telephone. Steering Committee decisions would become effective with a unanimous vote. Each member of the Steering Committee\nwould have one (1) vote.\n6.4 In addition to addressing the matters set forth in Sections 3, 5, 6.1, 6.2 and 7.2 (c), or by way of further clarifying such matters, the\nSteering Committee would consider and reach decisions on the following matters:\nConfidential 6\n(a) Whether to accept, reject or modify R & D plans or Development Programs proposed by the Program Leaders;\n(b) Whether to continue or modify ongoing Development Programs;\n(c) Approve or reject key milestone events for Development Programs, as established by the Program Leaders, including anticipated\ndeliverables and dates of completion and revise and/or add secondary milestones as necessary;\n(d) Whether to procure resources that are needed from time to time in the execution of any Development Program;\n(e) Discuss and decide upon commercialization options and strategies for exploiting any technologies, products, systems, materials and\nthe like that result from work performed under a Development Program and provide specific guidance and direction to MPM and MSC for\nexecuting any established commercialization strategies; and\n(f) Make reasonable determination of Royalty Obligations as contemplated under this Agreement.;\n7.1 Independent Technology. Each Party acknowledges and agrees that, as between the Parties, each Party is and shall remain for all\npurposes hereunder the sole and exclusive owner of all right, title and interest in and to its Independent Technology and all associated\nIntellectual Property Rights. Each Party acknowledges that it acquires no rights under this Agreement to the other Party’s Independent\nTechnology or associated Intellectual Property Rights other than the limited licenses expressly granted in this Agreement.\n7.2 Ownership of Development Program Technology and Related Intellectual Property Rights. Unless otherwise agreed in writing, and\nsubject to Section 7.1, ownership of Development Program Technology and all Intellectual Property Rights derived therefrom shall be as\nfollows:\n(a) MPM. As between the Parties, MPM shall own all Development Program Technology relating to (i) MPM Materials, (ii) all know-\nhow and processes relating to the manufacture of MPM Materials, (iii) all analytical and/or quality control techniques used in the\nConfidential 7\nevaluation of MPM Materials, (iv) all uses of any MPM Materials (without use of any MSC Material) in any and all end-use applications, and\n(v) any and all products, materials, formulations and the like that are made from or include an MPM Material (without the use or inclusion of\nany MSC Material). MPM shall also own all Intellectual Property Rights derived from any of the foregoing in (i) through (v), developed\npursuant to this Agreement as Development Program Technology, regardless of inventorship. All of the foregoing in (i) through (v) shall be\nreferred to as “MPM Work Product.” MSC hereby assigns to MPM the entire right, title and interest in and to the MPM Work Product,\nincluding without limit, any Inventions and Intellectual Property Rights derived from the Development Program Technology associated with or\napplicable to such MPM Work Product.\n(b) MSC. As between the Parties, MSC shall own all Development Program Technology relating to (1) MSC Materials, (ii) all know-how\nand processes relating to the manufacture of MSC Materials, (iii) all analytical and/or quality control techniques used in the evaluation of MSC\nMaterials, (iv) all uses of any MSC Materials (without the use or inclusion of any MPM Material) in any and all end-use applications, and\n(v) any and all products, materials, formulations and the like that are made from or include an MSC Material (does not include an MPM\nMaterial). MSC shall also own all Intellectual Property Rights derived from any of the foregoing in (i) through (v), developed pursuant to this\nAgreement as Development Program Technology, regardless of inventorship. All of the foregoing in (i) through (v) shall be referred to as\n“MSC Work Product.” MPM hereby assigns to MSC the entire right, title and interest in and to the MSC Work Product, including without\nlimit, any Inventions and Intellectual Property Rights derived from the Development Program Technology associated with or applicable to\nsuch MPM Work Product.\n(c) Ownership Requiring A Steering Committee Decision. Subject to Section 7.2(e), the Steering Committee shall decide, on a case-by-\ncase basis, which Party owns, as between the Parties, Development Program Technology relating to: (i) any product, material, composition of\nmatter, system or the like that includes an MPM Material and an MSC Material (“Hybrid Product™), (ii) all know-how, processes, etc., relating\nto the manufacture of any Hybrid Product, (iii) all analytical and/or quality control techniques used in the evaluation of any Hybrid Product,\n(iv) any and all end-use applications of any Hybrid Product, provided that such end-use applications have never been commercially exploited\nby either of the Parties, or have been commercially exploited by both of the Parties, prior to the Effective Date, (v) any and all end-use\napplications of products, materials, formulations and the like that are made from or include any Hybrid Product, provided that such end-use\napplications have never been commercially exploited by either of the Parties, or have been commercially exploited by both of the Parties, prior\nto the Effective Date and (vi) Shared Development Program Technology. All of the foregoing in (i) through (vi) shall be referred to as “Hybrid\nWork Product.” An owner of any Hybrid Work Product as decided by the Steering Committee shall also own all of the Intellectual Property\nRights in the Development Program Technology derived from that Hybrid Work Product and the non-owning Party hereby assigns to the\nowning Party the entire right, title and interest in and to that Hybrid Work Product, including without limit, any Inventions and Intellectual\nProperty Rights derived from the Development Program Technology associated with or applicable to such Hybrid Work Product.\n(d) Joint Ownership As Default Decision. In the event that the Steering Committee is unable to reach a decision regarding the ownership\nof Development Program Technology and related Intellectual Property Rights resulting from Hybrid Work Product as contemplated in\nSection 7.2 (c) at the Steering Committee meeting that the particular ownership issue is presented for consideration, or within thirty (30) days\nthereafter should the Steering\nConfidential 8\nCommittee decide that it needs more time to reach a definitive decision, then the Parties shall jointly own that Hybrid Work Product and such\nrelated Intellectual Property Rights until a definitive decision is reached, provided that, during any period of joint ownership, neither Party will\n(i) exercise such joint ownership in a way that is inconsistent with the intent and the terms and conditions of this Agreement, (ii) assign or\ntransfer title to any such work product or Intellectual Property Rights without the other Party’s express prior written consent, or (iii) license or\notherwise provide such Hybrid Work Product or Intellectual Property Rights to any third party, including without limitation any competitor of\nthe other Party or any infringer or potential infringer which the other Party is pursuing or plans to pursue. In the event that a definitive decision\nis reached with respect to the ownership of the subject Hybrid Work Product and related Intellectual Property Rights derived from\nDevelopment Program Technology, the owning party will own such Hybrid Work Product and such related Intellectual Property Rights under\nthe terms and conditions of this Agreement. In the event that a definitive decision assigning ownership of any Hybrid Work Product and related\nIntellectual Property Rights derived from Development Program Technology to one of the Parties is never reached, then the Parties will\ncontinue to jointly own such Hybrid Work Product and related Intellectual Property Rights derived from Development Program Technology\nsubject to the terms of this Section 7.2 (d).\n(e) Other Ownership Provisions. As between the Parties, the Previously Commercialized Party shall own all Development Program\nTechnology relating to the Prior End-Use Work Product in the end-use application that it has commercialized prior to the Effective Date. An\nowner of Prior End-Use Work Product shall also own all of the Intellectual Property Rights in the Development Program Technology derived\nfrom that Prior End-Use Work Product and the non-owning Party hereby assigns to the owning Party the entire right, title and interest in and to\nthat Prior End-Use Work Product, including without limit, any Inventions and Intellectual Property Rights in the Development Program\nTechnology associated with or applicable to such Prior End-Use Work Product.\n7.3 Research Licenses.\n(a) Subject to the terms and conditions of this Agreement, each Party hereby grants to the other Party and its Affiliates, on behalf of itself\nand its Affiliates, a non-exclusive, royalty-free, worldwide, revocable, limited license to use, during the term of this Agreement, the\nIndependent Technology of the owner Party, solely to permit the other Party’s (by itself and/or through its Affiliates’) performance of research\nand development activities in connection with the execution and implementation of any Development Program under this Agreement and/or to\npursue by itself, with no third Person (not including Affiliates) involvement, independent, internal research and development initiatives outside\nthe scope of this Agreement. In the event that a Party’s and/or its Affiliates’ (“Licensor Party”) Independent Technology is used under the\nlicense granted in this Section 7.3 (a) by the other Party and/or its Affiliates (“Licensee Party”) to pursue independent research and\ndevelopment initiatives outside the scope of this Agreement and such initiatives result in the creation or development of any Invention and/or\nTechnology, the Licensee Party hereby grants and agrees to grant to the Licensor Party, a non-exclusive, royalty-free, worldwide license under\nsuch Invention and/or Technology, as well as any Intellectual Property Rights derived from such Invention and/or Technology.\n(b) Subject to the terms and conditions of this Agreement, each Party hereby grants to the other Party and its Affiliates, on behalf of itself\nand its Affiliates, a non-exclusive, royalty-free, worldwide, revocable, limited license to use, during the term of this Agreement, the\nIntellectual Property Rights derived from the Development Program Technology directly related to the MPM Work Product, MSC Work\nProduct, Hybrid Work Product and Prior End-Use Work\nConfidential 9\nProduct (as the case may be) of the owner Party, solely to permit the other Party’s performance (by itself and/or through its Affiliates) of\nresearch and development activities in connection with the execution and implementation of any Development Program under this Agreement\nand/or to pursue by itself, with no third Person (not including Affiliates) involvement, independent, internal research and development\ninitiatives outside the scope of this Agreement. In the event that a Party’s and/or its Affiliates’ (“Licensor Party”) Independent Technology is\nused under the license granted in this Section 7.3 (b) by the other Party and/or its Affiliate (“Licensee Party”) to pursue independent research\nand development initiatives outside the scope of this Agreement and such initiatives result in the creation or development of any Invention\nand/or Technology, the Licensee Party hereby grants and agrees to grant to the Licensor Party, a non-exclusive, royalty-free, worldwide license\nunder such Invention and/or Technology, as well as any Intellectual Property Rights derived from such Invention and/or Technology\n7.4 Commercial Principles.\nEach Party agrees to use commercially reasonable efforts to develop, implement and follow collaborative strategies for the commercialization\nof any MSC Material, MPM Material and/or Hybrid Product. The purpose of the foregoing obligation is to provide each Party with an equitable and\nbalanced opportunity to derive value and monetary return from opportunities that might result from any work or collaboration done under this\nAgreement. One component of any evaluation of a collaborative commercial strategy will include an analysis of the value proposition associated\nwith the joint pursuit of a commercial opportunity by the Parties. One such consideration is the Royalty Obligations that would be associated with\nthe commercial licenses granted under Sections 7.5 through 7.8, which will be negotiated and agreed to by the respective representatives of the\nParties through the Steering Committe in arm’s-length good faith negotiations. Each Party acknowledges and agrees that the agreement on the\nRoyalty Obligations is a condition precedent to the effectiveness of the commercial licenses granted under Sections 7.5 through 7.8 and the licensee\nParty will pay the Royalty Obligations during the term of such licenses. It is expected that the Steering Committee members will play a primary role\nin fulfilling the obligations under this Section 7.4 on behalf of their respective organizations. If, after using commercially reasonable efforts to satisfy\nthese obligations, the Parties decide that it is not commercially feasible or desirable to pursue a commercial opportunity jointly, each Party shall be\npermitted to separately pursue the opportunity. For the purpose of clarity, the Parties do not intend for anything contained in this Section 7.4 to create\nany partnership, agency, joint venture or the like between the Parties. Indeed, the Parties intend, at all times, to maintain their separate legal identities\nas they work together under this Agreement.\n7.5 MPM Licenses To MSC.\n(a) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MSC, MPM\nagrees to grant and does hereby grant to MSC and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, MPM Work Product to make, have made, use,\nsell, offer to sell and import MSC Materials and/or Hybrid Products, provided that this license shall not become effective and MSC shall not\nactually have any licensed rights under this Section 7.5 (a) until the applicable Royalty Obligations have been agreed to by the Parties as\nprovided in Section 7.5. This license does not grant MSC any sublicense rights and does not include any license to MPM’s Intellectual\nConfidential 10\nProperty Rights that relate to MPM’s Independent Technology. MPM agrees not to enforce any infringement claim of the Intellectual Property\nRights licensed under this Section 7.5 (a) based on a use of MSC’s Materials and/or Hybrid Products by a customer who purchases MSC\nMaterials and/or Hybrid Products from MSC.\n(b) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MSC, MPM\nagrees to grant and does hereby grant to MSC and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, Prior End-Use Work Product to use a Hybrid\nProduct, and/or any products, materials, formulations and the like that are made from or include any Hybrid Product, provided that this license\nshall not become effective and MSC shall not actually have any licensed rights under this Section 7.5 (b) until the applicable Royalty\nObligations have been agreed to by the Parties as provided in Section 7.4. This license also includes a right for MSC to sublicense the licensed\nright of use to its customers.\n(c) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MSC, MPM\nagrees to grant and does hereby grant to MSC and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Independent Technology to make, have made, use, sell, offer to sell and import MSC Materials and/or\nHybrid Products, provided that this license shall not become effective and MSC shall not actually have any licensed rights under this\nSection 7.5 (c) until the applicable Royalty Obligations have been agreed to by the Parties as provided in Section 7.4. MPM agrees not to\nenforce any infringement claim of the Intellectual Property Rights licensed under this Section 7.5 (c) based on a use of MSC’s Materials and/or\nHybrid Products by a customer who purchases MSC Materials and/or Hybrid Products from MSC.\n7.6 MSC Licenses To MPM.\n(a) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MPM, MSC\nagrees to grant and does hereby grant to MPM and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, MSC Work Product to make, have made, use,\nsell, offer to sell and import MPM Materials and/or Hybrid Products, provided that this license shall not become effective and MSC shall not\nactually have any licensed rights under this Section 7.6 (a) until the applicable Royalty Obligations have been agreed to by the Parties as\nprovided in Section 7.4. This license does not grant MPM any sublicense rights and does not include any license to MSC’s Intellectual\nProperty Rights that relate to MSC’s Independent Technology. MSC agrees not to enforce any infringement claim of the Intellectual Property\nRights licensed under this Section 7.5 (a) based on a use of MPM’s Materials and/or Hybrid Products by a customer who purchases MPM\nMaterials and/or Hybrid Products from MPM.\n(b) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MPM, MSC\nagrees to grant and does hereby grant to MPM and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, Prior End-Use Work Product to use a Hybrid\nProduct, and/or any products, materials, formulations and the like that are made from or include any Hybrid Product, provided that this license\nshall not become effective and MPM shall not actually have any licensed rights under\nConfidential 11\nthis Section 7.6 (b) until the applicable Royalty Obligations have been agreed to by the Parties as provided in Section 7.4. This license also\nincludes a right for MPM to sublicense the licensed right of use to its customers.\n(c) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MPM, MSC\nagrees to grant and does hereby grant to MPM and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Independent Technology to make, have made, use, sell, offer to sell and import MPM Materials and/or\nHybrid Products, provided that this license shall not become effective and MPM shall not actually have any licensed rights under this\nSection 7.5 (c) until the applicable Royalty Obligations have been agreed to by the Parties as provided in Section 7.4. MSC agrees not to\nenforce any infringement claim of the Intellectual Property Rights licensed under this Section 7.6 (c) based on a use of MPM’s Materials\nand/or Hybrid Products by a customer who purchases MPM Materials and/or Hybrid Products from MPM.\n7.7 Cross Licenses\n(a) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by the licensee Party\nunder this Section, each Party agrees to grant and does hereby grant to the other Party and its Affiliates, on behalf of itself and its Affiliates, a\nnonexclusive, royalty-bearing, worldwide, revocable license under its Intellectual Property Rights derived from, and only from, Hybrid Work\nProduct that it owns under this Agreement to make, have made, use, sell, offer to sell and import Hybrid Products, provided that this license\nshall not become effective and neither licensee Party shall actually have any licensed rights under this Section 7.7(a) until the applicable\nRoyalty Obligations have been agreed to by the Parties as provided in Section 7.4. This license does not grant either Party any sublicense\nrights and does not include any license to either Party’s Intellectual Property Rights that relate to a granting Party’s Independent Technology.\nEach Party agrees not to enforce any infringement claim of the Intellectual Property Rights licensed under this Section 7.7 (a) based on a use\nof Hybrid products by a customer who purchases Hybrid Products from the licensee Party.\n7.8 Other Additional License. While the Parties have endeavored to include all licensing arrangements in this Agreement that are deemed\nnecessary or desirable to allow each Party to conduct the activities contemplated in this Agreement or as a result of this Agreement, the Parties\nrecognize that there may be a need to subsequently establish other licensing arrangements between the Parties. In the event that a Party decides\nthat it is necessary or desirable to enter into one or more licensing arrangements not included in this Agreement, each Party agrees to enter into\ngood faith negotiations with each other for such licenses. Any additional licenses shall only become effective by way of a written amendment\nto this Agreement signed by a duly authorized representative of each Party.\n7.9 Patent Procurement Procedures.\n(a) An owner of the MPM Work Product, MSC Work Product, Hybrid Work Product and Prior End-Use Work Product, as set forth\nabove, shall have the right, in its own discretion, to file patent applications in the United States and in any country of the world outside the\nUnited States in its own name. Each Party, at the request of the other Party, shall exercise reasonable efforts to support the filing of patent\napplications by the other Party in their respective technical fields of ownership. Such efforts shall include support by inventors and\nConfidential 12\nexecution of all legal documents (applications, assignments and declarations). All costs of preparing, filing and prosecuting patent applications\nowned by a Party, and of maintaining such Patents, shall be borne by said Party. In the event a Party decides against filing a patent application\ndirected to any Development Program Technology that it owns under this Agreement and, additionally, the owning Party does not wish to\nmaintain such Development Program Technology as a trade secret, the other non-owning Party shall have the right to take ownership of such\nDevelopment Program Technology for no additional consideration, and agrees that it shall bear all costs associated with the procurement and\nmaintenance of any patents. Analogously, if the owner of a patent directed to Development Program Technology resulting from this Agreement\nis no longer interested in maintaining such patent, the owner will provide the other Party with reasonable advanced notice of its intent to allow\nthe patent to lapse to give the other Party the opportunity to pay the maintenance fees and assume ownership of the patent in question for no\nadditional consideration. Also, if a Party decides against filing a patent application directed to Development Program Technology in a\nparticular country or countries that are of interest to the other Party, the owning Party will allow the other Party to effectuate the filings in those\nother countries, at the other Party’s expense, and the other Party will assume ownership of that patent application and any patent(s) issuing\ntherefrom without the need to pay any additional consideration. In the event that a transfer by one Party to the other Party occurs under this\nSection 7.9 (a), the transferor shall retain a royalty-free, worldwide, nonexclusive, irrevocable license under the transferred Development\nProgram Technology and/or Intellectual Property Rights in question.\n(b) In those instances where each Party will be filing a patent application that will disclose and/or claim subject matter that is related or\nsimilar to the subject matter presented in the other Party’s patent application, the Parties agree to file their respective priority patent\napplications on the same day. In order to facilitate and execute this requirement, the Parties’ patent counsel will coordinate and implement the\nappropriate actions.\n(c) The Parties agree that when filing patent applications directed to their respective areas of technical subject matter, they will not claim\nsubject matter owned by the other Party, without receiving the other Party’s written consent.\n(d) A separate record of conception shall be prepared for each invention relating to Technology conceived under any Development\nProgram. Each conception record shall include a proper description of the conceived invention. The conception record shall also include a\ndescription of an operative method of making the invention (where appropriate), as well as a description of the utility of the invention. The\nconception record, including the foregoing descriptions, shall be read by one having a level of skill in the art in the technical field in question\nrequired to understand the substance of such record (“Corroborating Witness™). Finally, the conception record shall be signed and dated by the\nperson(s) who conceived the invention and by the Corroborating Witness. Subject to Section 8 (where appropriate), a copy of each conception\nrecord generated under this Agreement shall be provided to the other Party for review, along with the written reports contemplated in\nSection 4.2.\n(e) The Parties agree and acknowledge that this Agreement is and shall be treated as a “joint research agreement” within the meaning of\nTitle 35 U.S.C. §103(c). The Parties agree to permit one another the right to disclose to the United States Patent and Trademark Office\n(“USPTO”) and other foreign patent prosecution offices, where appropriate or necessary, the existence and identifying information of patent\napplications that are filed by the other Party; and the existence of this Agreement.\nConfidential 13\n(f) While either Party may rely upon Title 35 U.S.C. §103(c) to overcome a prior art issue or to overcome a rejection imposed by the\nUSPTO, so that the Party disqualifies the other Party’s patent or patent application as prior art, the Parties agree to use reasonable efforts to\ntraverse a rejection by the USPTO without resorting to Title 35 U.S.C. §103(c). Should a Party ultimately elect, at its sole option and\ndiscretion, to rely upon Title 35 U.S.C. §103(c), the Parties shall cooperate in obtaining and filing any and all required papers, documents,\napprovals, consents and/or authorizations and including amending patent applications to identify the Parties as necessary to take advantage of\nTitle 35 U.S.C. §103(c).\n(g) The Parties agree that, if a double patenting issue arises in either a reexamination proceeding, an issued patent, or in a patent\napplication that has been filed under this Agreement, the Parties shall use reasonable efforts to address the issue without filing a terminal\ndisclaimer. However, if a Party ultimately determines, at its sole option and discretion, that the best course of action for that Party is to file a\nterminal disclaimer, the Parties agree to sign, and otherwise cooperate in the execution and filing, of a terminal disclaimer that complies with\n37 C.F.R. §1.321, and any other similar USPTO rule or regulation then in effect. The Parties recognize that filing such a terminal disclaimer\nprohibits the Parties from separately enforcing the U.S. patents that issue from the involved applications or the involved patents (hereinafter\ncollectively “Involved U.S. Patents”). Should issues of enforcement arise with respect to the Involved U.S. Patents, the Parties agree to\ndiscuss, in good faith, terms and conditions for jointly enforcing such Involved U.S. Patents.\n7.10 Further Acts and Assistance. The Parties agree to perform, during and after the term of this Agreement, all customary acts that are\nreasonably necessary or desirable to permit and assist the other in obtaining, perfecting and enforcing the full benefits, enjoyment, rights and\ntitle in the Intellectual Property assigned to the other Party under this Agreement. In the event that it becomes necessary to compensate any\nemployee of MSC or MPM who invented any Invention or Intellectual Property Rights, both MPM and MSC shall be obligated to compensate\nits own employees and shall have no obligation to compensate any of the other Party’s employees.\n8. Confidential Information.\n8.1 Each Party will maintain in strict confidence all Confidential Information received from the other Party. Each Party agrees that it will\nnot use, disclose to any third Person or grant use of such Confidential Information except to the extent required to achieve the Purpose or as\notherwise authorized in advance by the other Party in writing. Each Party agrees to use at least the same standard of care as it uses to protect its\nown confidential information of a similar nature to ensure that its employees do not disclose or make any unauthorized use of such\nConfidential Information, but in no case less than a reasonable standard of care. Each Party will disclose the other Party’s Confidential\nInformation only to those of such Party’s employees, and subject to the other Party’s prior written approval, consultants and contractors who\nneed to know such information to assist the Party in achieving the Purpose. Each Party certifies that each such employee, consultant and\ncontractor will have agreed in writing, either as a condition to employment or in order to obtain the other Party’s Confidential Information, to\nbe bound by confidentiality terms and conditions substantially similar to those terms and conditions applicable to each Party under this\nAgreement. Each Party guarantees that any of its employees, consultants, contractors, etc. that receive the other Party’s Confidential\nInformation hereunder will abide by the confidentiality and limited use obligations undertaken by a receiving Party under this Agreement.\nEach Party will promptly\nConfidential 14\nnotify the other Party upon discovery of any unauthorized use or disclosure of such Party’s Confidential Information.\n8.2 The Parties agree that the existence of this Agreement and its terms will also be considered Confidential Information and agree not to\ndisclose the terms of this Agreement to a third Person without the prior written consent of the other Party, except (i) as required to enforce the\nterms of this Agreement, (ii) to financial institutions, accountants, advisors and counsel or (iii) as required by statute, regulation or the order of\na court of competent jurisdiction. A disclosure of any Confidential Information (i) in response to a valid order by a court or other governmental\nbody or (ii) as otherwise required by law will not be considered to be a breach of this Agreement or a waiver of confidentiality for other\npurposes; provided, however, that the Party making such disclosure will provide prompt prior written notice thereof to the owner Party to\nenable the owner Party to seek a protective order or otherwise prevent such disclosure.\n8.3 The foregoing obligations of confidentiality in this Section 8 will not apply to the extent that it can be established by the receiving\nParty by competent proof that such Confidential Information: (i) was generally available to the public or otherwise part of the public domain at\nthe time of disclosure to the receiving Party; (ii) became generally available to the public or otherwise part of the public domain after the\nowner Party disclosed such information to the receiving Party, other than through any act or omission of the receiving Party in breach of this\nSection 8, or (iii) was independently created or developed by such Party without reference to the Confidential Information of the other Party.\n8.4 A Party that receives product or material samples from the other Party shall not reverse engineer or analyze samples for chemical or\nstructural composition without the prior written consent of the disclosing Party. The results of all analyses of samples will be regarded as\nConfidential Information of the disclosing Party and will be treated by the receiving Party with the same strict confidentiality and restrictions\non limited-use and disclosure as the other Confidential Information referred to above. The receiving Party will provide the disclosing Party\nwith a written summary of these analyses.\n8.5 Publicity. Except as otherwise expressed in this Agreement, neither Party shall, without the prior written consent of the other, make\nany news release, public announcement, or other disclosure to any third Person or any public denial or public confirmation of the existence of\nthis Agreement, any disclosure of the Parties’ working together or any other fact concerning, arising out of or in connection with this\nAgreement, the terms or provisions hereof or any subsequent arrangement(s) between the Parties concerning any activities hereunder. Each\nParty additionally agrees that the name of the other Party, and their respective employees’ names, will not be used for purposes of advertising\nor publicity without the other Party’s prior written consent.\n8.6 Publications. Each Party additionally agrees that in order to safeguard patent rights, each Party, upon the request of the other, will\ndelay any public disclosure of any Invention generated in the course of a Development Program under this Agreement for a time period of up\nto three (3) months from the date of disclosure to the other Party in order to permit the filing of patent application(s). Each Party agrees to\ndisclose the filing of any patent application arising from this Agreement to the other, permit the other Party’s review thereof, and to cooperate\nin the filing of any such patent applications desired by the disclosing Party as set forth in Section 7.9 hereof. Should any such patent\napplication of one Party contain any\nConfidential 15\nConfidential Information of the other Party, then the Parties will resolve prior to filing whether such information is to be deleted from such\napplication before its filing.\n9. Warranties and Liability.\n9.1 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY\nREPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY\nWARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT WITH RESPECT\nTO THE SUBJECT MATTER OF THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, CONFIDENTIAL INFORMATION,\nINTELLECTUAL PROPERTY RIGHTS, TECHNOLOGY, DEVELOPMENT PROGRAM WORK PRODUCT, INDEPENDENT\nTECHNOLOGY, MATERIALS, PRODUCTS AND THE LIKE, OR ANY PORTION OF COMPONENT THEREOF.\n9.2 IN NO EVENT SHALL A PARTY BE LIABLE FOR OR OBLIGATED IN ANY MANNER TO PAY ANY CONSEQUENTIAL,\nSPECIAL, PUNITIVE OR INDIRECT DAMAGES TO THE OTHER PARTY OR TO ANY OF ITS AGENTS, EMPLOYEES,\nCONTRACTORS, REPRESENTATIVES OR AFFILIATES FOR BREACH OF ANY PROVISIONS OF THIS AGREEMENT.\n10. Term and Termination.\n10.1 Term. Unless earlier terminated pursuant to Section 10.2 or 10.3, this Agreement begins on the Effective Date and shall continue for\na period of twenty (20) years, which term may be extended by the Parties upon mutual written agreement.\n10.2 Termination for Cause. If either Party materially breaches this Agreement, the non-breaching may terminate this Agreement or, if\napplicable, a particular Development Program, by written notice; provided, however, that the written notice clearly describes the nature of the\nalleged breach, the events and circumstances that gave rise to the alleged breach and a clear explanation of whether this Agreement, a\nparticular Development Program or both are being terminated. No termination under this Section 10.2 will be effective until the non-breaching\nParty provides written notice of such breach to the other Party and such Party fails to cure such breach within thirty (30) days of such notice.\nAny termination shall become effective at the expiration of such thirty (30) day notice period. Notice of termination for cause will be in\nwriting and sent by certified mail, postage prepaid, return receipt requested. If a particular Development Program is terminated without the\ntermination of the entire Agreement, this Agreement will be terminated only with respect to such Development Program and will remain in\neffect with respect to the then outstanding Development Programs in accordance with their terms and or any other Development Programs the\nParties decide to pursue under this Agreement.\n10.3 Termination for Change of Control. If a Party undergoes a Change of Control, unless such event has been consented to in writing by\nthe other Party under Section 12.2, the other Party may terminate this Agreement immediately upon written notice.\n10.4 Effect of Termination.\nConfidential 16\n(a) Upon any termination or expiration of this Agreement, all rights and obligations granted to either Party under this Agreement will\nimmediately terminate, except as provided in Section 10.5 and that Sections 8 and 9 will survive in accordance with their terms. Upon any\ntermination or expiration of this Agreement, each Party will cease all use of and return the other Party’s property and Confidential Information,\nexcept for one archival copy or to the extent such property or Confidential Information is needed to be retained for a Party to exercise any\nsurviving rights provided under Section 10.5.\n(b) There may be one or more Development Programs pending at the time when notice of termination of this Agreement is first given. As\nof the date of receipt of that notice, each Party may decide to discontinue disclosing Confidential Information relating to its Independent\nTechnology to the other Party for the pending Development Programs; however, except in the case of a termination the Development Program\nin question or the entire Agreement, the Parties agree to work together diligently to bring each pending Development Program to a logical and\norderly close. Among other things, the Parties shall meet promptly thereafter in order to (a) prioritize work during the remaining term of each\nDevelopment Project, and (b) agree upon a reasonable time frame for the Parties to diligently complete such Development Programs on which\nthe Parties are close to completion. The Parties agree that their cooperative efforts from that time forward shall be focused to accomplish the\nagreed work, even if the work extends for up to one hundred and eighty (180) days beyond the noticed termination date.\n10.5 Survival. Nothing herein shall be construed to release any liability or obligation of either Party to the other for acts or omissions\nprior to the termination or expiration of this Agreement. Without limiting the foregoing:\n(a) If a Party receiving commercial licenses under Sections 7.5 through 7.8 (“Licensee Party”) terminates under Section 10.2 for the\nuncured material breach of a Party granting licenses under those Sections (“Licensor Party), the licenses and rights granted under those\nSections will survive any such termination in accordance with their terms, provided that the Licensee Party continues to pay Royalty\nObligations for such licenses. Any such licenses and rights shall survive for a period that is co-extensive with the last to expire Intellectual\nProperty Right subject to the license in question.\n(b) If Licensor Party terminates under Section 10.2 for Licensee Party’s uncured material breach, then:\n(i) The commercial licenses granted under Sections 7.5 through 7.8 will terminate and be of no further force and effect except that\nLicensee Party may continue to exercise such licenses solely as necessary to (A) continue to sell any inventory of products related to\nsuch licenses, and to manufacture and sell all products related to such licenses that are then in the process of being manufactured, for a\nperiod of no longer than six (6) months after the effective date of termination, and (B) to meet Licensee Party’s then-existing (as of the\neffective date of termination) contractual obligations to third parties, for a period of no longer than [twelve (12)] months after the\neffective date of termination, subject to payment of applicable Royalty Obligations for such licenses; and\n(ii) Upon the end of the applicable period set forth in Section 11.5(b)(i), each sublicense previously granted by Licensee Party or\nany Affiliate of such Licensee Party under this Agreement shall remain in effect and shall become a direct license of such rights by\nLicensor Party to such sublicensee, subject to such sublicensee agreeing in\nConfidential 17\nwriting to assume Licensee Party’s terms, conditions and obligations to Licensor Party under this Agreement as they pertain to the\nsublicensed rights.\n(c) Termination or expiration of this Agreement will not relieve either Party from its payment obligations hereunder for any charges,\npayments or expenses due to the other Party that accrued prior to the termination or expiration date, and such amounts (if not otherwise due on\nan earlier date or disputed in good faith) shall be immediately due and payable on the termination or expiration date.\n11. Miscellaneous.\n11.1 Notices. All notices and requests under this Agreement (i) shall be in writing, (ii) may be delivered personally, sent by commercial\ncourier with tracking capabilities - costs prepaid, mailed by certified or registered mail—return receipt requested with postage prepaid, at the\noption of the sending Party, and (iii) shall be sent to and shall be effective on the date of recorded delivery at the receiving Party’s address for\nnotice. The initial address for notice is set forth below. Any subsequent address for notice shall be changed by notice given pursuant to this\nSection 11.1.\nIf to MSC:\nChief Technology Officer\nMomentive Specialty Chemicals Inc.\n180 East Broad Street\nColumbus, Ohio 43215\nwith a simultaneous copy to the General Counsel at the same address.\nIf to MPM:\nChief Technology Officer\nMomentive Performance Materials Inc.\n22 Corporate Woods Boulevard\nAlbany, New York 12211\nwith a simultaneous copy to the General Counsel at the same address.\n11.2 Assignment. Neither Party shall have the right to assign or transfer this Agreement or any right, obligation of performance, or\ninterest hereunder, whether voluntary or involuntary, without first receiving the other Party’s prior written consent. Any attempt at assigning or\ntransferring this Agreement in violation of this Section 11.2 shall be invalid and void and shall have no effect.\n11.3 Waivers. No waiver by a Party of any condition or breach of any provision of this Agreement will be effective unless in writing, and\nno waiver in any one or more instances will be deemed to be a further or continuing waiver of any such condition or breach in other instances\nor a waiver of any other condition or breach of any other provision.\n11.4 Counterparts. This Agreement may be executed simultaneously in identical counterparts, each of which will be deemed an original,\nbut all of which together will constitute one and the same instrument. A facsimile transmission of the executed signature page of this\nAgreement will constitute due and proper execution of this Agreement by the Party executing the signature page.\nConfidential 18\f11.5 Construction. The Section headings are for convenience only and will not be deemed part of this Agreement. The language of this\nAgreement will be construed according to its fair meaning. Any rule of construction resolving ambiguities against the drafting Party will not\napply in the interpretation of this Agreement. No specific representation, warranty or covenant contained in this Agreement will limit the\ngenerality or applicability of a more general representation, warranty or covenant.\n11.6 Independent Contractors. Each Party’s relationship with the other is that of an independent contractor, and nothing in this\nAgreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. Neither Party will\nbe entitled to any of the benefits that the other may make available to its employees, including, but not limited to, group health or life\ninsurance, profit sharing or retirement benefits. Neither Party is authorized to make any representation, contract or commitment on behalf of\nthe other.\n11.7 Severability. If any provision of this Agreement is unenforceable or invalid under any applicable law or is so held by applicable\ncourt decision, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will\nbe changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable\nlaw or applicable court decisions; provided, however that if the Parties are unable to so change the provision, then the affected Party may\nterminate this Agreement upon thirty (30) days notice.\n11.8 Governing Law. This Agreement and any dispute under this Agreement will be governed by and construed under the laws of the\nState of New York without regard to any of its conflict of laws principles.\n11.9 Survival. Subject to section 10.5, any provisions of this Agreement shall continue in full force and effect after termination of this\nAgreement, which are provisions that by their nature or purpose are intended to survive the termination of this Agreement.,\n11.10 Entire Understanding. This Agreement and the attached exhibits set forth the entire agreement and understanding of the Parties in\nrespect to the transactions contemplated and supersedes all prior agreements, arrangements, representations, term sheets and understandings\nrelating to the subject matter of this Agreement. This Agreement may be amended, modified or supplemented only in a writing signed by\nrespective officers of the Parties. This Agreement is not intended to confer upon any person, other than the signing Parties, any rights or\nremedies.\nConfidential 19\nIN WITNESS WHEREOF, the authorized representatives of the Parties have signed this Agreement.\nMPM: MSC:\nMOMENTIVE PERFORMANCE MATERIALS INC. MOMENTIVE SPECIALTY CHEMICALS INC.\nBy: Authorized Person By: Authorized Person\nPrint Name: Print Name:\nTitle: Title:\nDate: March 17, 2011 Date: March 17, 2011\nConfidential 20\nExhibit A\n(MODEL) DEVELOPMENT PROGRAM FORM\nThis Development Program Form describes the research program to be conducted by the Parties, and is governed by, is an attachment to and is,\nupon execution by the Parties, incorporated by reference into the Master Confidentiality and Joint Development Agreement by and between\nMomentive Specialty Chemicals Inc. (“MSC”) and Momentive Performance Materials Inc. (“MPM”) with an Effective Date of October 1, 2010 (the\n“Agreement.”) All the terms used in this Development Program Form shall retain the same meaning as defined in the Agreement and such\ndefinitions are incorporated herein by reference. In the event of any conflict between the provisions of the Agreement and of this Development\nProgram Form, the terms of the Agreement shall prevail. The terms and conditions of this Development Program Form are applicable solely to the\nresearch and development program described herein and in no way affect or alter the terms of any other Development Program Forms incorporated\ninto the Agreement prior to or after the Effective Date of this Development Program Form. This Development Program Form shall be effective as of\nthe date of the last signature below.\n1.  Scope:\nDate of Program Commencement:\nContent and Timeline of Project:\n2\n3\n4.  Business Units Involved in Program:\n5 Roles and Responsibilities:\n6 Key Contact Persons:\n7 Protocols for:\nA. Experimental Plans\nB. Data and Information Exchange\nC. Reporting and Periodic Progress Reports\n6.  Deliverables:\nIN WITNESS WHEREOF, the authorized representatives of the Parties have signed this Agreement.\nConfidential 21\nMPM: MSC:\nBy: By:\nPrint Name: Print Name:\nTitle: Title:\nDate: Date:\nConfidential 22	EX-10.2 3 dex102.htm MASTER CONFIDENTIALITY AND JOINT DEVELOPMENT AGREEMENT\nExhibit 10.2\nMASTER CONFIDENTIALITY AND JOINT DEVELOPMENT AGREEMENT\nThis Master Confidentiality and Joint Development Agreement ("Agreement") is by and between Momentive Specialty Chemicals Inc., with\na\nprincipal place of business at 180 East Broad Street, Columbus, Ohio 43215 ("MSC"), and Momentive Performance Materials Inc., with a principal\nplace of business at 22 Corporate Woods Boulevard, Albany, NY 12211 ("MPM"). The effective date of this Agreement is October 1, 2010\n("Effective Date").\nRECITALS\nWHEREAS, MSC makes and sells epoxy, phenolic and coating products and materials, as well as forest products, and has developed, and\ncontinues to develop, proprietary technology and intellectual property relating to such products and materials, the manufacture of such products and\nmaterials and the use of such products and materials in a wide variety of end-use applications;\nWHEREAS, MPM makes and sells silicones, quartz and ceramics products and materials, and has developed, and continues to develop,\nproprietary technology and intellectual property relating to such products and materials, the manufacture of such products and materials and the use\nof such products and materials in a wide variety of end-use applications;\nWHEREAS, MSC and MPM are Affiliates, although separate legal entities, and are both commonly indirectly owned by Momentive\nPerformance Materials Holdings LLC;\nWHEREAS, MSC and MPM mutually desire to cooperate with each other from time to time in the exchange of confidential information and\nproprietary technology and/or in the joint development of certain technology and/or products as the Parties mutually deem appropriate throughout\nthe life of this Agreement; and\nWHEREAS, in the event that new technology, products, materials and the like, including any resulting intellectual property related thereto, are\ndeveloped under this Agreement, MSC and MPM desire to set forth their respective rights regarding the ownership and use of such technology,\nproducts, materials and associated intellectual property.\nNOW, THEREFORE, in consideration of the material covenants and promises set forth herein the receipt and sufficiency of which is hereby\nagreed and acknowledged, the Parties agree as follows:\n1. Definitions.\n1.1 "Affiliate" means any entity that directly or indirectly owns, is owned by, or is under the common ownership with a Party, at any time\nduring the term of this Agreement. "Owns", "owned" or "ownership" means direct or indirect possession of more than fifty percent (50%) of\nthe votes of holders of a corporation's voting securities, or a comparable equity or other ownership interest in any other type of entity; provided\nthat for the purposes of this Agreement, MPM and its Affiliates shall not constitute Affiliates of MSC or its Affiliates, and vice-versa.\nConfidential\n1\n1.2 "Change of Control" means the occurrence of any of the following events: (a) any sale, lease, exchange or other transfer (in one\ntransaction or a series of related transactions) of all or substantially all of the assets of either of MSC or MPM to any entity or group, together\nwith any Affiliates thereof; (b) consummation of a sale of capital stock, merger, consolidation, reorganization or other transaction (or series of\nrelated transactions) involving either of MSC or MPM following which the direct or indirect beneficial owners of the applicable Party (or any\nof them) as of the date hereof do not hold, collectively, capital stock or other securities of the surviving corporation (i) with voting power to\nelect a majority of the surviving entity's board of directors or equivalent, or (ii) representing a beneficial interest in the surviving entity equal\nto at least a majority thereof or (c) any other transaction the result of which is that MPM shall no longer constitute an Affiliate of MSC. For\npurposes of this definition, no effect shall be given to the proviso to the definition of "Affiliate" set forth in Section 1.1.\n1.3 "Confidential Information" means any technical or commercial information or data, trade secrets, know-how, etc., of either Party\nor\ntheir respective Affiliates whether or not marked or stamped as confidential, including without limitation, Technology, Invention(s),\nIntellectual Property Rights, Independent Technology and any samples of products, materials or formulations including, without limitation, the\nchemical identity and any properties or specifications related to the foregoing. Any Development Program Technology, MPM Work Product,\nMSC Work Product, Hybrid Work Product, Prior End-Use Work Product and/or Shared Development Program Technology shall be\nConfidential Information of the Party that owns the subject matter under the terms set forth in this Agreement.\n1.4 "Development Program" means research and development programs that are mutually agreed upon from time to time by the Parties\nin accordance with the terms of this Agreement and described in a Development Program Form attached as Exhibit A to this Agreement.\n1.5 "Development Program Form" means the form described in Section 3.\n1.6 "Development Program Technology" means Technology that is not Independent Technology and that is conceived by at least one\nrepresentative of a Party or a Party's Affiliates, either solely or jointly, after the Effective Date and before any expiration and/or termination of\nthis Agreement and directly attributed to work performed under any Development Program under this Agreement.\n1.7 "Effective Date" means the date first written above.\n1.8 "Hybrid Product" shall have the meaning set forth in Section 7.2 (c).\n1.9 "Hybrid Work Product" shall have the meaning set forth in Section 7.2 (c).\n1.10 "Independent Technology" means Technology and associated Intellectual Property Rights owned solely by a Party, which is\nconceived prior to the Effective Date and/or at any time outside of the course of a Development Program, provided, where such conception\noccurred after the Effective Date, the owning Party made no use of or reliance upon the other Party's Technology for such conception or any\nsubsequent reduction to practice.\n1.11 "Intellectual Property Rights" means all worldwide utility and design patents, patent applications, and rights associated therewith,\nincluding any divisionals, continuations, continuations in part, reissues and reexaminations thereof, regardless of whether\nConfidential\n2\nsuch rights arise under the law of the United States or any other state, country or jurisdiction, as well as all know-how, trade secrets,\nproprietary information, technical data and the like.\n1.12 "Invention" means any invention, improvement, know-how, development, or discovery whether patentable or not.\n1.13 "MPM Materials" means: (i) chemical substances whether molecular or formulated and whether polymeric, monomeric or\nelemental which are based on the element silicon; (ii) sealants and adhesives, and adhesion promoters; (iii) catalytic materials\nincluding,\nwithout limitation, those based on the elements or species tin, amines, nickel, platinum, titanium and palladium; (iv) urethane additives and\nformulations containing the same; (v) additives for personal care products and resulting formulations; (vi) coatings; (vii) cross-linking agents\nand coupling agents; (viii) hardcoat formulations; (viii) ceramic powders for industrial use in the manufacture of a wide variety of goods;\n(ix) thermal management products for use in heat transfer applications; (x) ceramic parts and coated articles, electric resistance heating\nelements, and related components for use in various industrial processes; (xi) fabricated articles made from fused silica, fused quartz or glass\nfor use in the semiconductor, electronics, metallurgical, thin film and other industries; (xii) ceramic heaters and heater assemblies; (xii) metal\ncarbide coatings; and (xiii) synthetic silicone dioxide and modifications thereof.\n1.14 "MPM Work Product" shall have the meaning set forth in Section 7.2 (a).\n1.15 "MSC Materials" means (i) epoxy resins curing agents and modifiers for use across a wide range of applications including coatings,\nlaminates, composites and adhesives; (ii) adhesives for use in engineered wood products; (iii) formaldehyde and derivatives including\nhexamine, methaform and urea concentrates; (iv) mortar chemicals including liquid latexes, redispersible latex powders and other additives;\n(v) moulding compounds including epoxies, phenolics, melamine-phenolics and unsaturated polyesters; (vi) resin coated proppants;\n(vii) phenolic and amino resins including phenolic novolac, resole, powder resin solutions and water-based solutions; (viii) tackifier resins and\npine chemicals for use in hot melt adhesives, road marking applications and pressure-sensitive and non-pressure-sensitive adhesives;\n(ix) textile and non-woven resins; (x) UV curable resins for fiber optic applications; (xi) VERSATIC acid and derivatives; (xii) wax products\nand additives for use in coatings, composites and gypsum panels; and (xiii) wood composite binders for use in plywood and laminated veneer\nlumber, particleboard, MDF and oriented strand board.\n1.16 "MSC Work Product" shall have the meaning set forth in Section 7.2 (b).\n1.17 "Party" or "Parties" means, subject to Section 2, either MSC or MPM individually, or both MSC and MPM, as the text would\nwarrant.\n1.18 "Person" means any individual, corporation, partnership, association, trust, governmental authority or other entity or organization.\n1.20 "Previously Commercialized Party" shall have the meaning set forth in Section 1.21.\n1.21 "Prior End-Use Work Product" means (i) Hybrid Product or (ii) the use of any products, materials, formulations and the like that are\nmade from or include any Hybrid Product, in each case that can be used in an end-use application that has been commercially exploited by one\nParty and/or a Party's Affiliate (but not both of the Parties including their\nConfidential\n3\nrespective Affiliates) prior to the Effective Date. The Party (including their respective Affiliates) who has previously commercialized such\nend-use application will be referred to as "Previously Commercialized Party".\n1.22 "Purpose" shall have the meaning set forth in Section 2.\n1.23 "Royalty Obligations" means payment obligations, whether as up-front payments, royalties, license maintenance fees, milestone\npayments or any other consideration, for any royalty-bearing license granted in this Agreement that has been reasonably negotiated by the\nParties through arm's-length good faith negotiation and agreement through the Steering Committee as provided in Section 7.4. In a scenario\nwhere the Parties have agreed to jointly pursue a commercial opportunity and the licensor Party has decided, in its sole discretion, that its\nparticipation in the joint opportunity will provide it with sufficient value, the licensor Party may decide, in its sole discretion, that a reasonable\nroyalty is one dollar or other nominal amount. The Royalty Obligations may be agreed upon as part of a Development Program Form, an\namendment to this Agreement or any other writing executed between the Parties.\n1.24 "Shared Development Program Technology" means Development Program Technology that (i) did not evolve into MPM Work\nProduct or MSC Work Product, (ii) is not Prior End-Use Work Product or (iii) does not meet the criteria set forth in Section 7.2(c)(i) through\n(v).\n1.25 "Steering Committee" means the committee described in Section 6.2.\n1.26 "Technology" means all tangible or intangible know-how, knowledge, concepts, procedures, schematics, trade secrets, technical\ninformation and data, ideas, processes, inventions, technology, discoveries, improvements, methods, compositions, formulae, techniques, test\nresults, devices, designs, and/or manufacturing specifications and procedures, strategic business information, financial information, and any\ninformation regarding sources and prices for raw materials, subassemblies, parts and manufacturing services.\n2. Agreement Subject Matter. It is expected that the Parties will be exchanging Confidential Information with each other: (i) during their\nmutual evaluation of potential opportunities to collaborate with each other in the commercial exploitation of their respective products and\ntechnologies, (ii) during any cooperative research and development of newly developed products and technologies, and (iii) during the commercial\nphase of any cooperative exploitation of a Party's products and/or technologies. In addition, it is expected that the Parties will also exchange\nConfidential Information during the planning for and delivery of services pursuant to that certain Shared Services Agreement, effective October 1,\n2010, subscribed to by, among other parties, MPM and Hexion Specialty Chemicals Inc. (predecessor company to MSC). Accordingly, this\nAgreement sets forth the terms and conditions for the disclosure, receipt and use of the other Party's Confidential Information and also sets forth\nthe\nterms and conditions for any cooperative development activities that the Parties may mutually decide to pursue. All of the activities and exchanges\nof Confidential Information described in this Section 2 shall be referred to as the "Purpose." For the purpose of clarity, each Party will be engaging\nin activities to achieve the Purpose either by itself or with the assistance of, or through, one or more of its Affiliates. Therefore, the term "Party" (or\n"Parties") or MPM or MSC in this Agreement shall mean the applicable Party and its respective Affiliates, as the context requires. As an exception,\nthe foregoing shall not apply to Section 7.2 since it is intended that only MPM or MSC shall become owners of the subject matter, materials and/or\nproducts contemplated therein.\nConfidential\n4\n3. Development Program. During the life of this Agreement, it is anticipated that the Parties will meet from time to time to explore\nopportunities to collaborate with each other under a Development Program to develop new products and/or technology that could potentially benefit\nthe Parties. If, as a result of these meetings, the Parties mutually agree to pursue a Development Program, the Parties will work in cooperation,\nthrough the Steering Committee or as otherwise agreed by the Parties, to define goals and objectives of such Program and, thereafter, the scope of\nwork, milestones and timelines of the Development Program. The Parties shall also define the roles and responsibilities of each Party, and nominate\nprogram leaders from each of their respective organizations, as further described in Section 6, who will work with each other to oversee and manage\nthe establishment and implementation of the Development Program and jointly develop protocols for the exchange of experimental plans, technical\nprogram data and reporting periodic progress reviews. All of the foregoing activities, etc. will be described in a separate written Development\nProgram Form, substantially in the form attached hereto as Exhibit A (Development Program Form). Each Development Program Form shall be\nsigned by a duly authorized representative of each Party and maintained by the Parties in a separate database and/or in the file where this Agreement\nis maintained. Each Party agrees to regularly share data and information generated as a result of each Development Program undertaken hereunder,\nand to promptly notify the other Party of any new Development Program Technology, including without limit, any Invention conceived or reduced\nto\npractice in the course of a Development Program. For the purpose of clarity, in the event that any joint development activity or initiative is carried\nout by the Parties and, in so doing, the Parties fail to complete and execute a Development Program Form, such activity will nevertheless be subject\nto all of the terms and conditions of this Agreement and such failure will not relieve a Party or the Parties from complying with this Agreement\n4. Information Sharing.\n4.1 In order to coordinate and direct their respective research and development activities under any Development Program, the Parties,\nthrough their respective program leaders, will meet on a monthly basis, or as otherwise deemed necessary by the Parties. During these monthly\nmeetings, the Parties will review the activities undertaken in connection with any ongoing Development Programs, report on the progress\ntowards achieving any established goals and objectives and/or any perceived challenges or impediments to achieving such objectives, discuss\nthe status of the scope of work and any associated milestones and timelines and make adjustments to the scope of work, milestones and/or\ntimelines as deemed necessary or beneficial. It is expected that these monthly meetings will take place by telephone unless the Parties mutually\nagree otherwise.\n4.2 The Parties shall jointly prepare a written report every three (3) months during the life of any Development Program that outlines all\nresearch and development activities that have transpired, the current status of such activities, any relevant conclusions, future activities under\ncontemplation, and any proposed changes to the R & D scope, milestones and/or timelines. The report shall also include a clear explanation\nand documentation of any inventions, discoveries, improvements, etc. that have been made, as well as any conception records generated in the\nmanner set forth in Section 7.9 (d).\n5. Financial Terms. Unless otherwise decided by the Steering Committee and subsequently memorialized in a writing signed by the Parties'\nrespective duly authorized representatives, the Parties shall bear their respective costs relating to performance under this Agreement without any\nfinancial obligation to the other and neither Party shall be entitled to any reimbursement from the other Party for costs it incurs in support of any\nDevelopment Program.\nConfidential\n5\n6. Management of Joint Development Activities/Steering Committee.\n6.1 Both MPM and MSC would each appoint one (1) individual from their respective organizations to act as a Program Leader for each\nDevelopment Program that is pursued under this Agreement. The Program Leaders so appointed would be responsible for: (i) establishing an R\n& D team (composed of personnel having the requisite level of experience to properly and efficiently implement the Development Program);\n(ii)\ndeveloping an R & D plan pursuant to the general guidelines set forth in Sections 2 and 3; (iii) overseeing the day-to-day\nmanagement\nand\nimplementation of the Development Program on behalf of MPM and MSC; and (iv) coordinating the exchange of routine Development\nProgram-related communications between MPM and MSC. The Program Leaders would be further responsible for establishing a patent\ndevelopment strategy including, among other things, patent procurement targets, to protect all Development Program Technology. In addition,\nthe Program Leaders will prepare an outline detailing proposed ownership of patents and patent applications, consistent with the ownership\nprovisions of Section 7.2, that are likely to evolve from the Development Program on or before six (6) months from the date of commencement\nof the Development Program in question. This outline will, in turn, be reviewed by the Steering Committee and adopted or modified, as the\nSteering Committee deems appropriate. As a Development Program approaches its latter stages and the Parties have established an\nunderstanding of the potential value associated with the Development Program Technology and other work product resulting from a\nDevelopment Program, the Program Leaders will prepare a proposed business model or value-sharing proposition for consideration by the\nSteering Committee. In the event that the Parties decide, by mutual agreement or Steering Committee determination that a particular\nDevelopment Program would be executed and managed more efficiently by one of the Program Leaders due to his or her prior experience in\nthe targeted subject matter area, the Parties, or the Steering Committee, may nominate one of the Program Leaders to serve as the managing\nProgram Leader for that particular Development Program.\n6.2 Both MPM and MSC would each appoint three (3) individuals from their respective organizations to form a Steering Committee; one\n(1) individual should be a senior-level representative selected from the marketing/commercial group, one (1) individual should be a senior-\nlevel representative selected from the technology group and the third individual can be selected as a Party deems appropriate. In general, the\nfunctions of the Steering Committee would be to provide strategic direction to the Program Leaders and make informed decisions regarding\nthe\ndirection, management and implementation of the Development Program(s). Each Party, in its sole discretion, would be permitted to\nchange its own Steering Committee members by providing written notice to the other Party, along with an explanation of why the change is\nbeing made.\n6.3 The Steering Committee would meet in person at least two (2) times per year or as otherwise deemed necessary. The location of\nmeetings would alternate between MPM and MSC host facilities. Alternatively, the Steering Committee, at its discretion, could conduct these\nmeeting via telephone. Steering Committee decisions would become effective with a unanimous vote. Each member of the Steering Committee\nwould have one (1) vote.\n6.4 In addition to addressing the matters set forth in Sections 3, 5, 6.1, 6.2 and 7.2 (c), or by way of further clarifying such matters, the\nSteering Committee would consider and reach decisions on the following matters:\nConfidential\n6\n(a) Whether to accept, reject or modify R & D plans or Development Programs proposed by the Program Leaders;\n(b) Whether to continue or modify ongoing Development Programs;\n(c) Approve or reject key milestone events for Development Programs, as established by the Program Leaders, including anticipated\ndeliverables and dates of completion and revise and/or add secondary milestones as necessary;\n(d) Whether to procure resources that are needed from time to time in the execution of any Development Program;\n(e) Discuss and decide upon commercialization options and strategies for exploiting any technologies, products, systems, materials and\nthe like that result from work performed under a Development Program and provide specific guidance and direction to MPM and MSC for\nexecuting any established commercialization strategies; and\n(f) Make reasonable determination of Royalty Obligations as contemplated under this Agreement.;\n7. Intellectual Property. Ownership, Commercial Principles and Licenses.\n7.1 Independent Technology.. Each Party acknowledges and agrees that, as between the Parties, each Party is and shall remain for all\npurposes hereunder the sole and exclusive owner of all right, title and interest in and to its Independent Technology and all associated\nIntellectual Property Rights. Each Party acknowledges that it acquires no rights under this Agreement to the other Party's Independent\nTechnology or associated Intellectual Property Rights other than the limited licenses expressly granted in this Agreement.\n7.2 Ownership of Development Program Technology. and Related Intellectual Property. Rights. Unless otherwise agreed in writing, and\nsubject to Section 7.1, ownership of Development Program Technology and all Intellectual Property Rights derived therefrom shall be as\nfollows:\n(a) MPM. As between the Parties, MPM shall own all Development Program Technology relating to (i) MPM Materials, (ii) all know-\nhow and processes relating to the manufacture of MPM Materials, (iii) all analytical and/or quality control techniques used in the\nConfidential\n7\nevaluation of MPM Materials, (iv) all uses of any MPM Materials (without use of any MSC Material) in any and all end-use applications, and\n(v) any and all products, materials, formulations and the like that are made from or include an MPM Material (without the use or inclusion of\nany MSC Material). MPM shall also own all Intellectual Property Rights derived from any of the foregoing in (i) through (v), developed\npursuant to this Agreement as Development Program Technology, regardless of inventorship. All of the foregoing in (i) through (v) shall be\nreferred to as "MPM Work Product." MSC hereby assigns to MPM the entire right, title and interest in and to the MPM Work Product,\nincluding without limit, any Inventions and Intellectual Property Rights derived from the Development Program Technology associated with or\napplicable to such MPM Work Product.\n(b) MSC. As between the Parties, MSC shall own all Development Program Technology relating to (1) MSC Materials, (ii) all know-how\nand processes relating to the manufacture of MSC Materials, (iii) all analytical and/or quality control techniques used in the evaluation of MSC\nMaterials, (iv) all uses of any MSC Materials (without the use or inclusion of any MPM Material) in any and all end-use applications, and\n(v) any and all products, materials, formulations and the like that are made from or include an MSC Material (does not include an MPM\nMaterial) MSC shall also own all Intellectual Property Rights derived from any of the foregoing in (i) through (v), developed pursuant to this\nAgreement as Development Program Technology, regardless of inventorship. All of the foregoing in (i) through (v) shall be referred to as\n"MSC\nWork Product." MPM hereby assigns to MSC the entire right, title and interest in and to the MSC Work Product, including without\nlimit, any Inventions and Intellectual Property Rights derived from the Development Program Technology associated with or applicable to\nsuch MPM Work Product.\n(c) Ownership Requiring A Steering Committee Decision. Subject to Section 7.2(e), the Steering Committee shall decide, on a case-by-\ncase basis, which Party owns, as between the Parties, Development Program Technology relating to: (i) any product, material, composition of\nmatter, system or the like that includes an MPM Material and an MSC Material ("Hybrid Product"), (ii) all know-how, processes, etc., relating\nto the manufacture of any Hybrid Product, (iii) all analytical and/or quality control techniques used in the evaluation of any Hybrid Product,\n(iv) any and all end-use applications of any Hybrid Product, provided that such end-use applications have never been commercially exploited\nby either of the Parties, or have been commercially exploited by both of the Parties, prior to the Effective Date, (v) any and all end-use\napplications of products, materials, formulations and the like that are made from or include any Hybrid Product, provided that such end-use\napplications have never been commercially exploited by either of the Parties, or have been commercially exploited by both of the Parties, prior\nto the Effective Date and (vi) Shared Development Program Technology. All of the foregoing in (i) through (vi) shall be referred to as "Hybrid\nWork Product." An owner of any Hybrid Work Product as decided by the Steering Committee shall also own all of the Intellectual Property\nRights in the Development Program Technology derived from that Hybrid Work Product and the non-owning Party hereby assigns to the\nowning Party the entire right, title and interest in and to that Hybrid Work Product, including without limit, any Inventions and Intellectual\nProperty Rights derived from the Development Program Technology associated with or applicable to such Hybrid Work Product.\n(d) Joint Ownership As Default Decision. In the event that the Steering Committee is unable to reach a decision regarding the ownership\nof\nDevelopment Program Technology and related Intellectual Property Rights resulting from Hybrid Work Product as contemplated in\nSection 7.2 (c) at the Steering Committee meeting that the particular ownership issue is presented for consideration, or within thirty (30) days\nthereafter should the Steering\nConfidential\n8\nCommittee decide that it needs more time to reach a definitive decision, then the Parties shall jointly own that Hybrid Work Product and such\nrelated Intellectual Property Rights until a definitive decision is reached, provided that, during any period of joint ownership, neither Party will\n(i) exercise such joint ownership in a way that is inconsistent with the intent and the terms and conditions of this Agreement, (ii) assign or\ntransfer title to any such work product or Intellectual Property Rights without the other Party's express prior written consent, or (iii) license or\notherwise provide such Hybrid Work Product or Intellectual Property Rights to any third party, including without limitation any competitor of\nthe other Party or any infringer or potential infringer which the other Party is pursuing or plans to pursue. In the event that a definitive decision\nis\nreached with respect to the ownership of the subject Hybrid Work Product and related Intellectual Property Rights derived from\nDevelopment Program Technology, the owning party will own such Hybrid Work Product and such related Intellectual Property Rights under\nthe terms and conditions of this Agreement. In the event that a definitive decision assigning ownership of any Hybrid Work Product and related\nIntellectual Property Rights derived from Development Program Technology to one of the Parties is never reached, then the Parties will\ncontinue to jointly own such Hybrid Work Product and related Intellectual Property Rights derived from Development Program Technology\nsubject to the terms of this Section 7.2 (d).\n(e) Other Ownership Provisions. As between the Parties, the Previously Commercialized Party shall own all Development Program\nTechnology relating to the Prior End-Use Work Product in the end-use application that it has commercialized prior to the Effective Date. An\nowner of Prior End-Use Work Product shall also own all of the Intellectual Property Rights in the Development Program Technology derived\nfrom that Prior End-Use Work Product and the non-owning Party hereby assigns to the owning Party the entire right, title and interest in and to\nthat Prior End-Use Work Product, including without limit, any Inventions and Intellectual Property Rights in the Development Program\nTechnology associated with or applicable to such Prior End-Use Work Product.\n7.3 Research Licenses.\n(a) Subject to the terms and conditions of this Agreement, each Party hereby grants to the other Party and its Affiliates, on behalf of itself\nand its Affiliates, a non-exclusive, royalty-free, worldwide, revocable, limited license to use, during the term of this Agreement, the\nIndependent Technology of the owner Party, solely to permit the other Party's (by itself and/or through its Affiliates') performance\nof\nresearch\nand development activities in connection with the execution and implementation of any Development Program under this Agreement and/or to\npursue by itself, with no third Person (not including Affiliates) involvement, independent, internal research and development initiatives outside\nthe scope of this Agreement. In the event that a Party's and/or its Affiliates' ("Licensor Party") Independent Technology is used under the\nlicense granted in this Section 7.3 (a) by the other Party and/or its Affiliates ("Licensee Party") to pursue independent research and\ndevelopment initiatives outside the scope of this Agreement and such initiatives result in the creation or development of any Invention and/or\nTechnology, the Licensee Party hereby grants and agrees to grant to the Licensor Party, a non-exclusive, royalty-free, worldwide license under\nsuch Invention and/or Technology, as well as any Intellectual Property Rights derived from such Invention and/or Technology.\n(b) Subject to the terms and conditions of this Agreement, each Party hereby grants to the other Party and its Affiliates, on behalf of itself\nand its Affiliates, a non-exclusive, royalty-free, worldwide, revocable, limited license to use, during the term of this Agreement, the\nIntellectual Property Rights derived from the Development Program Technology directly related to the MPM Work Product, MSC Work\nProduct, Hybrid Work Product and Prior End-Use Work\nConfidential\n9\nProduct (as the case may be) of the owner Party, solely to permit the other Party's performance (by itself and/or through its Affiliates) of\nresearch and development activities in connection with the execution and implementation of any Development Program under this Agreement\nand/or to pursue by itself, with no third Person (not including Affiliates) involvement, independent, internal research and development\ninitiatives outside the scope of this Agreement. In the event that a Party's and/or its Affiliates' ("Licensor Party") Independent Technology is\nused under the license granted in this Section 7.3 (b) by the other Party and/or its Affiliate ("Licensee Party") to pursue independent research\nand development initiatives outside the scope of this Agreement and such initiatives result in the creation or development of any Invention\nand/or Technology, the Licensee Party hereby grants and agrees to grant to the Licensor Party, a non-exclusive, royalty-free, worldwide license\nunder such Invention and/or Technology, as well as any Intellectual Property Rights derived from such Invention and/or Technology\n7.4 Commercial Principles.\nEach Party agrees to use commercially reasonable efforts to develop, implement and follow collaborative strategies for the commercialization\nof any MSC Material, MPM Material and/or Hybrid Product. The purpose of the foregoing obligation is to provide each Party with an equitable and\nbalanced opportunity to derive value and monetary return from opportunities that might result from any work or collaboration done under this\nAgreement. One component of any evaluation of a collaborative commercial strategy will include an analysis of the value proposition associated\nwith the joint pursuit of a commercial opportunity by the Parties. One such consideration is the Royalty Obligations that would be associated with\nthe commercial licenses granted under Sections 7.5 through 7.8, which will be negotiated and agreed to by the respective representatives of the\nParties through the Steering Committe in arm's-length good faith negotiations. Each Party acknowledges and agrees that the agreement on the\nRoyalty Obligations is a condition precedent to the effectiveness of the commercial licenses granted under Sections 7.5 through 7.8 and the licensee\nParty will pay the Royalty Obligations during the term of such licenses. It is expected that the Steering Committee members will play a primary role\nin\nfulfilling the obligations under this Section 7.4 on behalf of their respective organizations. If, after using commercially reasonable efforts to satisfy\nthese obligations, the Parties decide that it is not commercially feasible or desirable to pursue a commercial opportunity jointly, each Party shall be\npermitted to separately pursue the opportunity. For the purpose of clarity, the Parties do not intend for anything contained in this Section 7.4 to create\nany partnership, agency, joint venture or the like between the Parties. Indeed, the Parties intend, at all times, to maintain their separate legal identities\nas they work together under this Agreement.\n7.5 MPM Licenses To MSC.\n(a) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MSC, MPM\nagrees to grant and does hereby grant to MSC and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, MPM Work Product to make, have made, use,\nsell, offer to sell and import MSC Materials and/or Hybrid Products, provided that this license shall not become effective and MSC shall not\nactually have any licensed rights under this Section 7.5 (a) until the applicable Royalty Obligations have been agreed to by the Parties as\nprovided in Section 7.5. This license does not grant MSC any sublicense rights and does not include any license to MPM's Intellectual\nConfidential\n10\nProperty Rights that relate to MPM's Independent Technology. MPM agrees not to enforce any infringement claim of the Intellectual Property\nRights licensed under this Section 7.5 (a) based on a use of MSC's Materials and/or Hybrid Products by a customer who purchases MSC\nMaterials and/or Hybrid Products from MSC.\n(b) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MSC, MPM\nagrees to grant and does hereby grant to MSC and its Affiliates on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, Prior End-Use Work Product to use a Hybrid\nProduct, and/or any products, materials, formulations and the like that are made from or include any Hybrid Product, provided that this license\nshall not become effective and MSC shall not actually have any licensed rights under this Section 7.5 (b) until the applicable Royalty\nObligations have been agreed to by the Parties as provided in Section 7.4. This license also includes a right for MSC to sublicense the licensed\nright of use to its customers.\n(c) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MSC, MPM\nagrees to grant and does hereby grant to MSC and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Independent Technology to make, have made, use, sell, offer to sell and import MSC Materials and/or\nHybrid Products, provided that this license shall not become effective and MSC shall not actually have any licensed rights under this\nSection 7.5 (c) until the applicable Royalty Obligations have been agreed to by the Parties as provided in Section 7.4. MPM agrees not to\nenforce any infringement claim of the Intellectual Property Rights licensed under this Section 7.5 (c) based on a use of MSC's Materials and/or\nHybrid Products by a customer who purchases MSC Materials and/or Hybrid Products from MSC.\n7.6 MSC Licenses To MPM.\n(a) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MPM, MSC\nagrees to grant and does hereby grant to MPM and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, MSC Work Product to make, have made, use,\nsell, offer to sell and import MPM Materials and/or Hybrid Products, provided that this license shall not become effective and MSC shall not\nactually have any licensed rights under this Section 7.6 (a) until the applicable Royalty Obligations have been agreed to by the Parties as\nprovided in Section 7.4. This license does not grant MPM any sublicense rights and does not include any license to MSC's Intellectual\nProperty Rights that relate to MSC's Independent Technology. MSC agrees not to enforce any infringement claim of the Intellectual Property\nRights licensed under this Section 7.5 (a) based on a use of MPM's Materials and/or Hybrid Products by a customer who purchases MPM\nMaterials and/or Hybrid Products from MPM.\n(b) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MPM, MSC\nagrees to grant and does hereby grant to MPM and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, Prior End-Use Work Product to use a Hybrid\nProduct, and/or any products, materials, formulations and the like that are made from or include any Hybrid Product, provided that this license\nshall not become effective and MPM shall not actually have any licensed rights under\nConfidential\n11\nthis Section 7.6 (b) until the applicable Royalty Obligations have been agreed to by the Parties as provided in Section 7.4. This license also\nincludes a right for MPM to sublicense the licensed right of use to its customers.\n(c)\nSubject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MPM, MSC\nagrees to grant and does hereby grant to MPM and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Independent Technology to make, have made, use, sell, offer to sell and import MPM Materials and/or\nHybrid Products, provided that this license shall not become effective and MPM shall not actually have any licensed rights under this\nSection 7.5 (c) until the applicable Royalty Obligations have been agreed to by the Parties as provided in Section 7.4. MSC agrees not to\nenforce any infringement claim of the Intellectual Property Rights licensed under this Section 7.6 (c) based on a use of MPM's Materials\nand/or Hybrid Products by a customer who purchases MPM Materials and/or Hybrid Products from MPM.\n7.7 Cross Licenses\n(a) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by the licensee Party\nunder this Section, each Party agrees to grant and does hereby grant to the other Party and its Affiliates, on behalf of itself and its Affiliates, a\nnonexclusive, royalty-bearing, worldwide, revocable license under its Intellectual Property Rights derived from, and only from, Hybrid Work\nProduct that it owns under this Agreement to make, have made, use, sell, offer to sell and import Hybrid Products, provided that this license\nshall not become effective and neither licensee Party shall actually have any licensed rights under this Section 7.7(a) until the applicable\nRoyalty Obligations have been agreed to by the Parties as provided in Section 7.4. This license does not grant either Party any sublicense\nrights and does not include any license to either Party's Intellectual Property Rights that relate to a granting Party's Independent Technology.\nEach Party agrees not to enforce any infringement claim of the Intellectual Property Rights licensed under this Section 7.7 (a) based on a use\nof Hybrid products by a customer who purchases Hybrid Products from the licensee Party.\n7.8 Other Additional License. While the Parties have endeavored to include all licensing arrangements in this Agreement that are deemed\nnecessary or desirable to allow each Party to conduct the activities contemplated in this Agreement or as a result of this Agreement, the Parties\nrecognize that there may be a need to subsequently establish other licensing arrangements between the Parties. In the event that a Party decides\nthat it is necessary or desirable to enter into one or more licensing arrangements not included in this Agreement, each Party agrees to enter into\ngood faith negotiations with each other for such licenses. Any additional licenses shall only become effective by way of a written amendment\nto this Agreement signed by a duly authorized representative of each Party.\n7.9 Patent Procurement Procedures.\n(a) An owner of the MPM Work Product, MSC Work Product, Hybrid Work Product and Prior End-Use Work Product, as set forth\nabove, shall have the right, in its own discretion, to file patent applications in the United States and in any country of the world outside the\nUnited States in its own name. Each Party, at the request of the other Party, shall exercise reasonable efforts to support the filing of patent\napplications by the other Party in their respective technical fields of ownership. Such efforts shall include support by inventors and\nConfidential\n12\nexecution of all legal documents (applications, assignments and declarations). All costs of preparing, filing and prosecuting patent applications\nowned by a Party, and of maintaining such Patents, shall be borne by said Party. In the event a Party decides against filing a patent application\ndirected to any Development Program Technology that it owns under this Agreement and, additionally, the owning Party does not wish to\nmaintain such Development Program Technology as a trade secret, the other non-owning Party shall have the right to take ownership of such\nDevelopment Program Technology for no additional consideration, and agrees that it shall bear all costs associated with the procurement and\nmaintenance of any patents. Analogously, if the owner of a patent directed to Development Program Technology resulting from this Agreement\nis no longer interested in maintaining such patent, the owner will provide the other Party with reasonable advanced notice of its intent to allow\nthe patent to lapse to give the other Party the opportunity to pay the maintenance fees and assume ownership of the patent in question for no\nadditional consideration. Also, if a Party decides against filing a patent application directed to Development Program Technology in a\nparticular country or countries that are of interest to the other Party, the owning Party will allow the other Party to effectuate the filings in those\nother countries, at the other Party's expense, and the other Party will assume ownership of that patent application and any patent(s) issuing\ntherefrom without the need to pay any additional consideration. In the event that a transfer by one Party to the other Party occurs under this\nSection 7.9 (a), the transferor shall retain a royalty-free, worldwide, nonexclusive, irrevocable license under the transferred Development\nProgram Technology and/or Intellectual Property Rights in question.\n(b) In those instances where each Party will be filing a patent application that will disclose and/or claim subject matter that is related or\nsimilar to the subject matter presented in the other Party's patent application, the Parties agree to file their respective priority patent\napplications on the same day. In order to facilitate and execute this requirement, the Parties' patent counsel will coordinate and implement the\nappropriate actions.\n(c) The Parties agree that when filing patent applications directed to their respective areas of technical subject matter, they will not claim\nsubject matter owned by the other Party, without receiving the other Party's written consent.\n(d) A separate record of conception shall be prepared for each invention relating to Technology conceived under any Development\nProgram. Each conception record shall include a proper description of the conceived invention. The conception record shall also include a\ndescription of an operative method of making the invention (where appropriate), as well as a description of the utility of the invention. The\nconception record, including the foregoing descriptions, shall be read by one having a level of skill in the art in the technical field in question\nrequired to understand the substance of such record ("Corroborating Witness"). Finally, the conception record shall be signed and dated by the\nperson(s) who conceived the invention and by the Corroborating Witness. Subject to Section 8 (where appropriate), a copy of each conception\nrecord generated under this Agreement shall be provided to the other Party for review, along with the written reports contemplated in\nSection 4.2.\n(e) The Parties agree and acknowledge that this Agreement is and shall be treated as a "joint research agreement" within the meaning of\nTitle 35 U.S.C. 8103(c). The Parties agree to permit one another the right to disclose to the United States Patent and Trademark Office\n("USPTO") and other foreign patent prosecution offices, where appropriate or necessary, the existence and identifying information of patent\napplications that are filed by the other Party; and the existence of this Agreement.\nConfidential\n13\n(f) While either Party may rely upon Title 35 U.S.C. 8103(c) to overcome a prior art issue or to overcome a rejection imposed by the\nUSPTO, so that the Party disqualifies the other Party's patent or patent application as prior art, the Parties agree to use reasonable efforts to\ntraverse a rejection by the USPTO without resorting to Title 35 U.S.C. 103(c). Should a Party ultimately elect, at its sole option and\ndiscretion, to rely upon Title 35 U.S.C. 8103(c), the Parties shall cooperate in obtaining and filing any and all required papers, documents,\napprovals, consents and/or authorizations and including amending patent applications to identify the Parties as necessary to take advantage of\nTitle 35 U.S.C. 8103(c).\n(g) The Parties agree that, if a double patenting issue arises in either a reexamination proceeding, an issued patent, or in a patent\napplication that has been filed under this Agreement, the Parties shall use reasonable efforts to address the issue without filing a terminal\ndisclaimer. However, if a Party ultimately determines, at its sole option and discretion, that the best course of action for that Party is to file\na\nterminal disclaimer, the Parties agree to sign, and otherwise cooperate in the execution and filing, of a terminal disclaimer that complies with\n37 C.F.R. 81.321, and any other similar USPTO rule or regulation then in effect. The Parties recognize that filing such a terminal disclaimer\nprohibits the Parties from separately enforcing the U.S. patents that issue from the involved applications or the involved patents (hereinafter\ncollectively "Involved U.S. Patents"). Should issues of enforcement arise with respect to the Involved U.S. Patents, the Parties agree to\ndiscuss, in good faith, terms and conditions for jointly enforcing such Involved U.S. Patents.\n7.10 Further Acts and Assistance. The Parties agree to perform, during and after the term of this Agreement, all customary acts that are\nreasonably necessary or desirable to permit and assist the other in obtaining, perfecting and enforcing the full benefits, enjoyment, rights and\ntitle in the Intellectual Property assigned to the other Party under this Agreement. In the event that it becomes necessary to compensate any\nemployee of MSC or MPM who invented any Invention or Intellectual Property Rights, both MPM and MSC shall be obligated to compensate\nits own employees and shall have no obligation to compensate any of the other Party's employees.\n8. Confidential Information.\n8.1 Each Party will maintain in strict confidence all Confidential Information received from the other Party. Each Party agrees that it will\nnot use, disclose to any third Person or grant use of such Confidential Information except to the extent required to achieve the Purpose or as\notherwise authorized in advance by the other Party in writing. Each Party agrees to use at least the same standard of care as it uses to protect its\nown confidential information of a similar nature to ensure that its employees do not disclose or make any unauthorized use of such\nConfidentia Information, but in no case less than a reasonable standard of care. Each Party will disclose the other Party's Confidential\nInformation only to those of such Party's employees, and subject to the other Party's prior written approval, consultants and contractors who\nneed to know such information to assist the Party in achieving the Purpose. Each Party certifies that each such employee, consultant and\ncontractor will have agreed in writing, either as a condition to employment or in order to obtain the other Party's Confidential Information, to\nbe bound by confidentiality terms and conditions substantially similar to those terms and conditions applicable to each Party under this\nAgreement. Each Party guarantees that any of its employees, consultants, contractors, etc. that receive the other Party's Confidential\nInformation hereunder will abide by the confidentiality and limited use obligations undertaken by a receiving Party under this Agreement.\nEach Party will promptly\nConfidential\n14\nnotify the other Party upon discovery of any unauthorized use or disclosure of such Party's Confidential Information.\n8.2 The Parties agree that the existence of this Agreement and its terms will also be considered Confidential Information and agree not to\ndisclose the terms of this Agreement to a third Person without the prior written consent of the other Party, except (i) as required to enforce the\nterms of this Agreement, (ii) to financial institutions, accountants, advisors and counsel or (iii) as required by statute, regulation or the order of\na\ncourt\nof\ncompetent jurisdiction. A disclosure of any Confidential Information (i) in response to a valid order by a court or other governmental\nbody or (ii) as otherwise required by law will not be considered to be a breach of this Agreement or a waiver of confidentiality for other\npurposes; provided, however, that the Party making such disclosure will provide prompt prior written notice thereof to the owner Party to\nenable the owner Party to seek a protective order or otherwise prevent such disclosure.\n8.3 The foregoing obligations of confidentiality in this Section 8 will not apply to the extent that it can be established by the receiving\nParty by competent proof that such Confidential Information: (i) was generally available to the public or otherwise part of the public domain at\nthe time of disclosure to the receiving Party; (ii) became generally available to the public or otherwise part of the public domain after the\nowner Party disclosed such information to the receiving Party, other than through any act or omission of the receiving Party in breach of this\nSection 8, or (iii) was independently created or developed by such Party without reference to the Confidential Information of the other Party.\n8.4 A Party that receives product or material samples from the other Party shall not reverse engineer or analyze samples for chemical or\nstructural composition without the prior written consent of the disclosing Party. The results of all analyses of samples will be regarded as\nConfidential Information of the disclosing Party and will be treated by the receiving Party with the same strict confidentiality and restrictions\non limited-use and disclosure as the other Confidential Information referred to above. The receiving Party will provide the disclosing Party\nwith a written summary of these analyses.\n8.5 Publicity. Except as otherwise expressed in this Agreement, neither Party shall, without the prior written consent of the other, make\nany news release, public announcement, or other disclosure to any third Person or any public denial or public confirmation of the existence of\nthis Agreement, any disclosure of the Parties' working together or any other fact concerning, arising out of or in connection with this\nAgreement, the terms or provisions hereof or any subsequent arrangement(s) between the Parties concerning any activities hereunder. Each\nParty additionally agrees that the name of the other Party, and their respective employees' names, will not be used for purposes of advertising\nor publicity without the other Party's prior written consent.\n8.6 Publications Each Party additionally agrees that in order to safeguard patent rights, each Party, upon the request of the other, will\ndelay any public disclosure of any Invention generated in the course of a Development Program under this Agreement for a time period of up\nto three (3) months from the date of disclosure to the other Party in order to permit the filing of patent application(s). Each Party agrees to\ndisclose the filing of any patent application arising from this Agreement to the other, permit the other Party's review thereof, and to cooperate\nin the filing of any such patent applications desired by the disclosing Party as set forth in Section 7.9 hereof. Should any such patent\napplication of one Party contain any\nConfidential\n15\nConfidential Information of the other Party, then the Parties will resolve prior to filing whether such information is to be deleted from such\napplication before its filing.\n9. Warranties and Liability.\n9.1 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY\nREPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY\nWARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT WITH RESPECT\nTO THE SUBJECT MATTER OF THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, CONFIDENTIAL INFORMATION,\nINTELLECTUAL PROPERTY RIGHTS, TECHNOLOGY, DEVELOPMENT PROGRAM WORK PRODUCT, INDEPENDENT\nTECHNOLOGY, MATERIALS, PRODUCTS AND THE LIKE, OR ANY PORTION OF COMPONENT THEREOF.\n9.2 IN NO EVENT SHALL A PARTY BE LIABLE FOR OR OBLIGATED IN ANY MANNER TO PAY ANY CONSEQUENTIAL,\nSPECIAL, PUNITIVE OR INDIRECT DAMAGES TO THE OTHER PARTY OR TO ANY OF ITS AGENTS, EMPLOYEES,\nCONTRACTORS, REPRESENTATIVES OR AFFILIATES FOR BREACH OF ANY PROVISIONS OF THIS AGREEMENT.\n10. Term and Termination.\n10.1 Term. Unless earlier terminated pursuant to Section 10.2 or 10.3, this Agreement begins on the Effective Date and shall continue for\na period of twenty (20) years, which term may be extended by the Parties upon mutual written agreement.\n10.2 Termination for Cause. If either Party materially breaches this Agreement, the non-breaching may terminate this Agreement or, if\napplicable, a particular Development Program, by written notice; provided, however, that the written notice clearly describes the nature of the\nalleged breach, the events and circumstances that gave rise to the alleged breach and a clear explanation of whether this Agreement, a\nparticular Development Program or both are being terminated. No termination under this Section 10.2 will be effective until the non-breaching\nParty provides written notice of such breach to the other Party and such Party fails to cure such breach within thirty (30) days of such notice.\nAny termination shall become effective at the expiration of such thirty (30) day notice period. Notice of termination for cause will be in\nwriting and sent by certified mail, postage prepaid, return receipt requested. If a particular Development Program is terminated without the\ntermination of the entire Agreement, this Agreement will be terminated only with respect to such Development Program and will remain in\neffect with respect to the then outstanding Development Programs in accordance with their terms and or any other Development Programs the\nParties decide to pursue under this Agreement.\n10.3 Termination for Change of Control. If a Party undergoes a Change of Control, unless such event has been consented to in writing by\nthe\nother Party under Section 12.2, the other Party may terminate this Agreement immediately upon written notice.\n10.4 Effect of Termination.\nConfidential\n16\n(a) Upon any termination or expiration of this Agreement, all rights and obligations granted to either Party under this Agreement will\nimmediately terminate, except as provided in Section 10.5 and that Sections 8 and 9 will survive in accordance with their terms. Upon any\ntermination or expiration of this Agreement, each Party will cease all use of and return the other Party's property and Confidential Information,\nexcept for one archival copy or to the extent such property or Confidential Information is needed to be retained for a Party to exercise any\nsurviving rights provided under Section 10.5.\n(b) There may be one or more Development Programs pending at the time when notice of termination of this Agreement is first given. As\nof the date of receipt of that notice, each Party may decide to discontinue disclosing Confidential Information relating to its Independent\nTechnology to the other Party for the pending Development Programs; however, except in the case of a termination the Development Program\nin question or the entire Agreement, the Parties agree to work together diligently to bring each pending Development Program to a logical and\norderly close. Among other things, the Parties shall meet promptly thereafter in order to (a) prioritize work during the remaining term of each\nDevelopment Project, and (b) agree upon a reasonable time frame for the Parties to diligently complete such Development Programs on which\nthe Parties are close to completion. The Parties agree that their cooperative efforts from that time forward shall be focused to accomplish the\nagreed work, even if the work extends for up to one hundred and eighty (180) days beyond the noticed termination date.\n10.5 Survival. Nothing herein shall be construed to release any liability or obligation of either Party to the other for acts or omissions\nprior to the termination or expiration of this Agreement. Without limiting the foregoing:\n(a) If a Party receiving commercial licenses under Sections 7.5 through 7.8 ("Licensee Party") terminates under Section 10.2 for the\nuncured material breach of a Party granting licenses under those Sections ("Licensor Party), the licenses and rights granted under those\nSections will survive any such termination in accordance with their terms, provided that the Licensee Party continues to pay Royalty\nObligations for such licenses. Any such licenses and rights shall survive for a period that is co-extensive with the last to expire Intellectual\nProperty Right subject to the license in question.\n(b) If Licensor Party terminates under Section 10.2 for Licensee Party's uncured material breach, then:\n(i) The commercial licenses granted under Sections 7.5 through 7.8 will terminate and be of no further force and effect except that\nLicensee Party may continue to exercise such licenses solely as necessary to (A) continue to sell any inventory of products related to\nsuch licenses, and to manufacture and sell all products related to such licenses that are then in the process of being manufactured, for a\nperiod of no longer than six (6) months after the effective date of termination, and (B) to meet Licensee Party's then-existing (as of the\neffective date of termination) contractual obligations to third parties, for a period of no longer than [twelve (12)] months after the\neffective date of termination, subject to payment of applicable Royalty Obligations for such licenses; and\n(ii) Upon the end of the applicable period set forth in Section 11.5(b)(i), each sublicense previously granted by Licensee Party or\nany Affiliate of such Licensee Party under this Agreement shall remain in effect and shall become a direct license of such rights by\nLicensor Party to such sublicensee, subject to such sublicensee agreeing in\nConfidential\n17\nwriting to assume Licensee Party's terms, conditions and obligations to Licensor Party under this Agreement as they pertain to the\nsublicensed rights.\n(c) Termination or expiration of this Agreement will not relieve either Party from its payment obligations hereunder for any charges,\npayments or expenses due to the other Party that accrued prior to the termination or expiration date, and such amounts (if not otherwise due on\nan earlier date or disputed in good faith) shall be immediately due and payable on the termination or expiration date.\n11. Miscellaneous\n11.1 Notices. All notices and requests under this Agreement (i) shall be in writing, (ii) may be delivered personally, sent by commercial\ncourier with tracking capabilities - costs prepaid, mailed by certified or registered mail-return receipt requested with postage prepaid, at the\noption of the sending Party, and (iii) shall be sent to and shall be effective on the date of recorded delivery at the receiving Party's address for\nnotice. The initial address for notice is set forth below. Any subsequent address for notice shall be changed by notice given pursuant to this\nSection 11.1.\nIf to MSC:\nChief Technology Officer\nMomentive Specialty Chemicals Inc.\n180 East Broad Street\nColumbus, Ohio 43215\nwith a simultaneous copy to the General Counsel at the same address.\nIf to MPM:\nChief Technology Officer\nMomentive Performance Materials Inc.\n22 Corporate Woods Boulevard\nAlbany, New York 12211\nwith a simultaneous copy to the General Counsel at the same address.\n11.2 Assignment Neither Party shall have the right to assign or transfer this Agreement or any right, obligation of performance, or\ninterest hereunder, whether voluntary or involuntary, without first receiving the other Party's prior written consent. Any attempt at assigning or\ntransferring this Agreement in violation of this Section 11.2 shall be invalid and void and shall have no effect.\n11.3 Waivers. No waiver by a Party of any condition or breach of any provision of this Agreement will be effective unless in writing, and\nno\nwaiver in any one or more instances will be deemed to be a further or continuing waiver of any such condition or breach in other instances\nor a waiver of any other condition or breach of any other provision.\n11.4 Counterparts. This Agreement may be executed simultaneously in identical counterparts, each of which will be deemed an original,\nbut all of which together will constitute one and the same instrument. A facsimile transmission of the executed signature page of this\nAgreement will constitute due and proper execution of this Agreement by the Party executing the signature page.\nConfidential\n18\n11.5 Construction. The Section headings are for convenience only and will not be deemed part of this Agreement. The language of this\nAgreement will be construed according to its fair meaning. Any rule of construction resolving ambiguities against the drafting Party will not\napply in the interpretation of this Agreement No specific representation, warranty or covenant contained in this Agreement will limit the\ngenerality or applicability of a more general representation, warranty or covenant.\n11.6 Independent Contractors. Each Party's relationship with the other is that of an independent contractor, and nothing in this\nAgreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. Neither Party will\nbe entitled to any of the benefits that the other may make available to its employees, including, but not limited to, group health or life\ninsurance, profit sharing or retirement benefits. Neither Party is authorized to make any representation, contract or commitment on behalf of\nthe other\n11.7 Severability. If any provision of this Agreement is unenforceable or invalid under any applicable law or is SO held by applicable\ncourt decision, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will\nbe changed and interpreted SO as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable\nlaw or applicable court decisions; provided, however that if the Parties are unable to SO change the provision, then the affected Party may\nterminate this Agreement upon thirty (30) days notice.\n11.8 Governing Law. This Agreement and any dispute under this Agreement will be governed by and construed under the laws of the\nState of New York without regard to any of its conflict of laws principles.\n11.9 Survival. Subject to section 10.5, any provisions of this Agreement shall continue in full force and effect after termination of this\nAgreement, which are provisions that by their nature or purpose are intended to survive the termination of this Agreement.,\n11.10 Entire Understanding. This Agreement and the attached exhibits set forth the entire agreement and understanding of the Parties in\nrespect to the transactions contemplated and supersedes all prior agreements, arrangements, representations, term sheets and understandings\nrelating to the subject matter of this Agreement. This Agreement may be amended, modified or supplemented only in a writing signed by\nrespective officers of the Parties. This Agreement is not intended to confer upon any person, other than the signing Parties, any rights or\nremedies.\nConfidential\n19\nIN WITNESS WHEREOF, the authorized representatives of the Parties have signed this Agreement.\nMPM:\nMSC:\nMOMENTIVE PERFORMANCE MATERIALS INC.\nMOMENTIVE SPECIALTY CHEMICALS INC.\nBy:\nAuthorized Person\nBy:\nAuthorized Person\nPrint Name:\nPrint Name:\nTitle:\nTitle:\nDate:\nMarch 17, 2011\nDate:\nMarch 17, 2011\nConfidential\n20\nExhibit A\n(MODEL) DEVELOPMENT PROGRAM FORM\nThis Development Program Form describes the research program to be conducted by the Parties, and is governed by, is an attachment to and is,\nupon execution by the Parties, incorporated by reference into the Master Confidentiality and Joint Development Agreement by and between\nMomentive Specialty Chemicals Inc. ("MSC") and Momentive Performance Materials Inc. ("MPM") with an Effective Date of October 1, 2010 (the\n"Agreement.") All the terms used in this Development Program Form shall retain the same meaning as defined in the Agreement and such\ndefinitions are incorporated herein by reference In the event of any conflict between the provisions of the Agreement and of this Development\nProgram Form, the terms of the Agreement shall prevail. The terms and conditions of this Development Program Form are applicable solely to the\nresearch and development program described herein and in no way affect or alter the terms of any other Development Program Forms incorporated\ninto the Agreement prior to or after the Effective Date of this Development Program Form. This Development Program Form shall be effective as of\nthe date of the last signature below.\n1.\nScope:\n2.\nDate of Program Commencement:\n3.\nContent and Timeline of Project:\n4.\nBusiness Units Involved in Program:\n5.\nRoles and Responsibilities:\n6.\nKey Contact Persons:\n7.\nProtocols for:\nA.\nExperimental Plans\nB.\nData and Information Exchange\nC.\nReporting and Periodic Progress Reports\n6. Deliverables:\nIN WITNESS WHEREOF, the authorized representatives of the Parties have signed this Agreement.\nConfidential\n21\nMPM:\nMSC:\nBy:\nBy:\nPrint Name:\nPrint Name:\nTitle:\nTitle:\nDate:\nDate\nConfidential\n22	EX-10.2 3 dex102.htm MASTER CONFIDENTIALITY AND JOINT DEVELOPMENT AGREEMENT\nExhibit 10.2\nMASTER CONFIDENTIALITY AND JOINT DEVELOPMENT AGREEMENT\nThis Master Confidentiality and Joint Development Agreement (“Agreement”) is by and between Momentive Specialty Chemicals Inc., with a\nprincipal place of business at 180 East Broad Street, Columbus, Ohio 43215 (“MSC”), and Momentive Performance Materials Inc., with a principal\nplace of business at 22 Corporate Woods Boulevard, Albany, NY 12211 (“MPM”). The effective date of this Agreement is October 1, 2010\n(“Effective Date”).\nRECITALS\nWHEREAS, MSC makes and sells epoxy, phenolic and coating products and materials, as well as forest products, and has developed, and\ncontinues to develop, proprietary technology and intellectual property relating to such products and materials, the manufacture of such products and\nmaterials and the use of such products and materials in a wide variety of end-use applications;\nWHEREAS, MPM makes and sells silicones, quartz and ceramics products and materials, and has developed, and continues to develop,\nproprietary technology and intellectual property relating to such products and materials, the manufacture of such products and materials and the use\nof such products and materials in a wide variety of end-use applications;\nWHEREAS, MSC and MPM are Affiliates, although separate legal entities, and are both commonly indirectly owned by Momentive\nPerformance Materials Holdings LLC;\nWHEREAS, MSC and MPM mutually desire to cooperate with each other from time to time in the exchange of confidential information and\nproprietary technology and/or in the joint development of certain technology and/or products as the Parties mutually deem appropriate throughout\nthe life of this Agreement; and\nWHEREAS, in the event that new technology, products, materials and the like, including any resulting intellectual property related thereto, are\ndeveloped under this Agreement, MSC and MPM desire to set forth their respective rights regarding the ownership and use of such technology,\nproducts, materials and associated intellectual property.\nNOW, THEREFORE, in consideration of the material covenants and promises set forth herein the receipt and sufficiency of which is hereby\nagreed and acknowledged, the Parties agree as follows:\n1. Definitions.\n1.1 “Affiliate” means any entity that directly or indirectly owns, is owned by, or is under the common ownership with a Party, at any time\nduring the term of this Agreement. “Owns”, “owned” or “ownership” means direct or indirect possession of more than fifty percent (50%) of\nthe votes of holders of a corporation’s voting securities, or a comparable equity or other ownership interest in any other type of entity; provided\nthat for the purposes of this Agreement, MPM and its Affiliates shall not constitute Affiliates of MSC or its Affiliates, and vice-versa.\nConfidential\n1\n1.2 “Change of Control” means the occurrence of any of the following events: (a) any sale, lease, exchange or other transfer (in one\ntransaction or a series of related transactions) of all or substantially all of the assets of either of MSC or MPM to any entity or group, together\nwith any Affiliates thereof; (b) consummation of a sale of capital stock, merger, consolidation, reorganization or other transaction (or series of\nrelated transactions) involving either of MSC or MPM following which the direct or indirect beneficial owners of the applicable Party (or any\nof them) as of the date hereof do not hold, collectively, capital stock or other securities of the surviving corporation (i) with voting power to\nelect a majority of the surviving entity’s board of directors or equivalent, or (ii) representing a beneficial interest in the surviving entity equal\nto at least a majority thereof or (c) any other transaction the result of which is that MPM shall no longer constitute an Affiliate of MSC. For\npurposes of this definition, no effect shall be given to the proviso to the definition of “Affiliate” set forth in Section 1.1.\n1.3 “Confidential Information” means any technical or commercial information or data, trade secrets, know-how, etc., of either Party or\ntheir respective Affiliates whether or not marked or stamped as confidential, including without limitation, Technology, Invention(s),\nIntellectual Property Rights, Independent Technology and any samples of products, materials or formulations including, without limitation, the\nchemical identity and any properties or specifications related to the foregoing. Any Development Program Technology, MPM Work Product,\nMSC Work Product, Hybrid Work Product, Prior End-Use Work Product and/or Shared Development Program Technology shall be\nConfidential Information of the Party that owns the subject matter under the terms set forth in this Agreement.\n1.4 “Development Program” means research and development programs that are mutually agreed upon from time to time by the Parties\nin accordance with the terms of this Agreement and described in a Development Program Form attached as Exhibit A to this Agreement.\n1.5 “Development Program Form” means the form described in Section 3.\n1.6 “Development Program Technology” means Technology that is not Independent Technology and that is conceived by at least one\nrepresentative of a Party or a Party’s Affiliates, either solely or jointly, after the Effective Date and before any expiration and/or termination of\nthis Agreement and directly attributed to work performed under any Development Program under this Agreement.\n1.7 “Effective Date” means the date first written above.\n1.8 “Hybrid Product” shall have the meaning set forth in Section 7.2 (c).\n1.9 “Hybrid Work Product” shall have the meaning set forth in Section 7.2 (c).\n1.10 “Independent Technology” means Technology and associated Intellectual Property Rights owned solely by a Party, which is\nconceived prior to the Effective Date and/or at any time outside of the course of a Development Program, provided, where such conception\noccurred after the Effective Date, the owning Party made no use of or reliance upon the other Party’s Technology for such conception or any\nsubsequent reduction to practice.\n1.11 “Intellectual Property Rights” means all worldwide utility and design patents, patent applications, and rights associated therewith,\nincluding any divisionals, continuations, continuations in part, reissues and reexaminations thereof, regardless of whether\nConfidential\n2\nsuch rights arise under the law of the United States or any other state, country or jurisdiction, as well as all know-how, trade secrets,\nproprietary information, technical data and the like.\n1.12 “Invention” means any invention, improvement, know-how, development, or discovery whether patentable or not.\n1.13 “MPM Materials” means: (i) chemical substances whether molecular or formulated and whether polymeric, monomeric or\nelemental which are based on the element silicon; (ii) sealants and adhesives, and adhesion promoters; (iii) catalytic materials including,\nwithout limitation, those based on the elements or species tin, amines, nickel, platinum, titanium and palladium; (iv) urethane additives and\nformulations containing the same; (v) additives for personal care products and resulting formulations; (vi) coatings; (vii) cross-linking agents\nand coupling agents; (viii) hardcoat formulations; (viii) ceramic powders for industrial use in the manufacture of a wide variety of goods;\n(ix) thermal management products for use in heat transfer applications; (x) ceramic parts and coated articles, electric resistance heating\nelements, and related components for use in various industrial processes; (xi) fabricated articles made from fused silica, fused quartz or glass\nfor use in the semiconductor, electronics, metallurgical, thin film and other industries; (xii) ceramic heaters and heater assemblies; (xii) metal\ncarbide coatings; and (xiii) synthetic silicone dioxide and modifications thereof.\n1.14 “MPM Work Product” shall have the meaning set forth in Section 7.2 (a).\n1.15 “MSC Materials” means (i) epoxy resins curing agents and modifiers for use across a wide range of applications including coatings,\nlaminates, composites and adhesives; (ii) adhesives for use in engineered wood products; (iii) formaldehyde and derivatives including\nhexamine, methaform and urea concentrates; (iv) mortar chemicals including liquid latexes, redispersible latex powders and other additives;\n(v) moulding compounds including epoxies, phenolics, melamine-phenolics and unsaturated polyesters; (vi) resin coated proppants;\n(vii) phenolic and amino resins including phenolic novolac, resole, powder resin solutions and water-based solutions; (viii) tackifier resins and\npine chemicals for use in hot melt adhesives, road marking applications and pressure-sensitive and non-pressure-sensitive adhesives;\n(ix) textile and non-woven resins; (x) UV curable resins for fiber optic applications; (xi) VERSATIC acid and derivatives; (xii) wax products\nand additives for use in coatings, composites and gypsum panels; and (xiii) wood composite binders for use in plywood and laminated veneer\nlumber, particleboard, MDF and oriented strand board.\n1.16 “MSC Work Product” shall have the meaning set forth in Section 7.2 (b).\n1.17 “Party” or “Parties” means, subject to Section 2, either MSC or MPM individually, or both MSC and MPM, as the text would\nwarrant.\n1.18 “Person” means any individual, corporation, partnership, association, trust, governmental authority or other entity or organization.\n1.20 “Previously Commercialized Party” shall have the meaning set forth in Section 1.21.\n1.21 “Prior End-Use Work Product” means (i) Hybrid Product or (ii) the use of any products, materials, formulations and the like that are\nmade from or include any Hybrid Product, in each case that can be used in an end-use application that has been commercially exploited by one\nParty and/or a Party’s Affiliate (but not both of the Parties including their\nConfidential\n3\nrespective Affiliates) prior to the Effective Date. The Party (including their respective Affiliates) who has previously commercialized such\nend-use application will be referred to as “Previously Commercialized Party”.\n1.22 “Purpose” shall have the meaning set forth in Section 2.\n1.23 “Royalty Obligations” means payment obligations, whether as up-front payments, royalties, license maintenance fees, milestone\npayments or any other consideration, for any royalty-bearing license granted in this Agreement that has been reasonably negotiated by the\nParties through arm’s-length good faith negotiation and agreement through the Steering Committee as provided in Section 7.4. In a scenario\nwhere the Parties have agreed to jointly pursue a commercial opportunity and the licensor Party has decided, in its sole discretion, that its\nparticipation in the joint opportunity will provide it with sufficient value, the licensor Party may decide, in its sole discretion, that a reasonable\nroyalty is one dollar or other nominal amount. The Royalty Obligations may be agreed upon as part of a Development Program Form, an\namendment to this Agreement or any other writing executed between the Parties.\n1.24 “Shared Development Program Technology” means Development Program Technology that (i) did not evolve into MPM Work\nProduct or MSC Work Product, (ii) is not Prior End-Use Work Product or (iii) does not meet the criteria set forth in Section 7.2(c)(i) through\n(v).\n1.25 “Steering Committee” means the committee described in Section 6.2 .\n1.26 “Technology” means all tangible or intangible know-how, knowledge, concepts, procedures, schematics, trade secrets, technical\ninformation and data, ideas, processes, inventions, technology, discoveries, improvements, methods, compositions, formulae, techniques, test\nresults, devices, designs, and/or manufacturing specifications and procedures, strategic business information, financial information, and any\ninformation regarding sources and prices for raw materials, subassemblies, parts and manufacturing services.\n2. Agreement Subject Matter. It is expected that the Parties will be exchanging Confidential Information with each other: (i) during their\nmutual evaluation of potential opportunities to collaborate with each other in the commercial exploitation of their respective products and\ntechnologies, (ii) during any cooperative research and development of newly developed products and technologies, and (iii) during the commercial\nphase of any cooperative exploitation of a Party’s products and/or technologies. In addition, it is expected that the Parties will also exchange\nConfidential Information during the planning for and delivery of services pursuant to that certain Shared Services Agreement, effective October 1,\n2010, subscribed to by, among other parties, MPM and Hexion Specialty Chemicals Inc. (predecessor company to MSC). Accordingly, this\nAgreement sets forth the terms and conditions for the disclosure, receipt and use of the other Party’s Confidential Information and also sets forth the\nterms and conditions for any cooperative development activities that the Parties may mutually decide to pursue. All of the activities and exchanges\nof Confidential Information described in this Section 2 shall be referred to as the “Purpose.” For the purpose of clarity, each Party will be engaging\nin activities to achieve the Purpose either by itself or with the assistance of, or through, one or more of its Affiliates. Therefore, the term “Party” (or\n“Parties”) or MPM or MSC in this Agreement shall mean the applicable Party and its respective Affiliates, as the context requires. As an exception,\nthe foregoing shall not apply to Section 7.2 since it is intended that only MPM or MSC shall become owners of the subject matter, materials and/or\nproducts contemplated therein.\nConfidential\n4\n3. Development Program. During the life of this Agreement, it is anticipated that the Parties will meet from time to time to explore\nopportunities to collaborate with each other under a Development Program to develop new products and/or technology that could potentially benefit\nthe Parties. If, as a result of these meetings, the Parties mutually agree to pursue a Development Program, the Parties will work in cooperation,\nthrough the Steering Committee or as otherwise agreed by the Parties, to define goals and objectives of such Program and, thereafter, the scope of\nwork, milestones and timelines of the Development Program. The Parties shall also define the roles and responsibilities of each Party, and nominate\nprogram leaders from each of their respective organizations, as further described in Section 6, who will work with each other to oversee and manage\nthe establishment and implementation of the Development Program and jointly develop protocols for the exchange of experimental plans, technical\nprogram data and reporting periodic progress reviews. All of the foregoing activities, etc. will be described in a separate written Development\nProgram Form, substantially in the form attached hereto as Exhibit A (Development Program Form). Each Development Program Form shall be\nsigned by a duly authorized representative of each Party and maintained by the Parties in a separate database and/or in the file where this Agreement\nis maintained. Each Party agrees to regularly share data and information generated as a result of each Development Program undertaken hereunder,\nand to promptly notify the other Party of any new Development Program Technology, including without limit, any Invention conceived or reduced to\npractice in the course of a Development Program. For the purpose of clarity, in the event that any joint development activity or initiative is carried\nout by the Parties and, in so doing, the Parties fail to complete and execute a Development Program Form, such activity will nevertheless be subject\nto all of the terms and conditions of this Agreement and such failure will not relieve a Party or the Parties from complying with this Agreement.\n4. Information Sharing.\n4.1 In order to coordinate and direct their respective research and development activities under any Development Program, the Parties,\nthrough their respective program leaders, will meet on a monthly basis, or as otherwise deemed necessary by the Parties. During these monthly\nmeetings, the Parties will review the activities undertaken in connection with any ongoing Development Programs, report on the progress\ntowards achieving any established goals and objectives and/or any perceived challenges or impediments to achieving such objectives, discuss\nthe status of the scope of work and any associated milestones and timelines and make adjustments to the scope of work, milestones and/or\ntimelines as deemed necessary or beneficial. It is expected that these monthly meetings will take place by telephone unless the Parties mutually\nagree otherwise.\n4.2 The Parties shall jointly prepare a written report every three (3) months during the life of any Development Program that outlines all\nresearch and development activities that have transpired, the current status of such activities, any relevant conclusions, future activities under\ncontemplation, and any proposed changes to the R & D scope, milestones and/or timelines. The report shall also include a clear explanation\nand documentation of any inventions, discoveries, improvements, etc. that have been made, as well as any conception records generated in the\nmanner set forth in Section 7.9 (d).\n5. Financial Terms. Unless otherwise decided by the Steering Committee and subsequently memorialized in a writing signed by the Parties’\nrespective duly authorized representatives, the Parties shall bear their respective costs relating to performance under this Agreement without any\nfinancial obligation to the other and neither Party shall be entitled to any reimbursement from the other Party for costs it incurs in support of any\nDevelopment Program.\nConfidential\n5\n6. Management of Joint Development Activities/Steering Committee.\n6.1 Both MPM and MSC would each appoint one (1) individual from their respective organizations to act as a Program Leader for each\nDevelopment Program that is pursued under this Agreement. The Program Leaders so appointed would be responsible for: (i) establishing an R\n& D team (composed of personnel having the requisite level of experience to properly and efficiently implement the Development Program);\n(ii) developing an R & D plan pursuant to the general guidelines set forth in Sections 2 and 3; (iii) overseeing the day-to-day management and\nimplementation of the Development Program on behalf of MPM and MSC; and (iv) coordinating the exchange of routine Development\nProgram-related communications between MPM and MSC. The Program Leaders would be further responsible for establishing a patent\ndevelopment strategy including, among other things, patent procurement targets, to protect all Development Program Technology. In addition,\nthe Program Leaders will prepare an outline detailing proposed ownership of patents and patent applications, consistent with the ownership\nprovisions of Section 7.2, that are likely to evolve from the Development Program on or before six (6) months from the date of commencement\nof the Development Program in question. This outline will, in turn, be reviewed by the Steering Committee and adopted or modified, as the\nSteering Committee deems appropriate. As a Development Program approaches its latter stages and the Parties have established an\nunderstanding of the potential value associated with the Development Program Technology and other work product resulting from a\nDevelopment Program, the Program Leaders will prepare a proposed business model or value-sharing proposition for consideration by the\nSteering Committee. In the event that the Parties decide, by mutual agreement or Steering Committee determination, that a particular\nDevelopment Program would be executed and managed more efficiently by one of the Program Leaders due to his or her prior experience in\nthe targeted subject matter area, the Parties, or the Steering Committee, may nominate one of the Program Leaders to serve as the managing\nProgram Leader for that particular Development Program.\n6.2 Both MPM and MSC would each appoint three (3) individuals from their respective organizations to form a Steering Committee; one\n(1) individual should be a senior-level representative selected from the marketing/commercial group, one (1) individual should be a senior-\nlevel representative selected from the technology group and the third individual can be selected as a Party deems appropriate. In general, the\nfunctions of the Steering Committee would be to provide strategic direction to the Program Leaders and make informed decisions regarding\nthe direction, management and implementation of the Development Program(s). Each Party, in its sole discretion, would be permitted to\nchange its own Steering Committee members by providing written notice to the other Party, along with an explanation of why the change is\nbeing made.\n6.3 The Steering Committee would meet in person at least two (2) times per year or as otherwise deemed necessary. The location of\nmeetings would alternate between MPM and MSC host facilities. Alternatively, the Steering Committee, at its discretion, could conduct these\nmeeting via telephone. Steering Committee decisions would become effective with a unanimous vote. Each member of the Steering Committee\nwould have one (1) vote.\n6.4 In addition to addressing the matters set forth in Sections 3, 5, 6.1, 6.2 and 7.2 (c), or by way of further clarifying such matters, the\nSteering Committee would consider and reach decisions on the following matters:\nConfidential\n6\n(a) Whether to accept, reject or modify R & D plans or Development Programs proposed by the Program Leaders;\n(b) Whether to continue or modify ongoing Development Programs;\n(c) Approve or reject key milestone events for Development Programs, as established by the Program Leaders, including anticipated\ndeliverables and dates of completion and revise and/or add secondary milestones as necessary;\n(d) Whether to procure resources that are needed from time to time in the execution of any Development Program;\n(e) Discuss and decide upon commercialization options and strategies for exploiting any technologies, products, systems, materials and\nthe like that result from work performed under a Development Program and provide specific guidance and direction to MPM and MSC for\nexecuting any established commercialization strategies; and\n(f) Make reasonable determination of Royalty Obligations as contemplated under this Agreement.;\n7. Intellectual Property Ownership, Commercial Principles and Licenses.\n7.1 Independent Technology. Each Party acknowledges and agrees that, as between the Parties, each Party is and shall remain for all\npurposes hereunder the sole and exclusive owner of all right, title and interest in and to its Independent Technology and all associated\nIntellectual Property Rights. Each Party acknowledges that it acquires no rights under this Agreement to the other Party’s Independent\nTechnology or associated Intellectual Property Rights other than the limited licenses expressly granted in this Agreement.\n7.2 Ownership of Development Program Technology and Related Intellectual Property Rights. Unless otherwise agreed in writing, and\nsubject to Section 7.1, ownership of Development Program Technology and all Intellectual Property Rights derived therefrom shall be as\nfollows:\n(a) MPM. As between the Parties, MPM shall own all Development Program Technology relating to (i) MPM Materials, (ii) all know-\nhow and processes relating to the manufacture of MPM Materials, (iii) all analytical and/or quality control techniques used in the\nConfidential\n7\nevaluation of MPM Materials, (iv) all uses of any MPM Materials (without use of any MSC Material) in any and all end-use applications, and\n(v) any and all products, materials, formulations and the like that are made from or include an MPM Material (without the use or inclusion of\nany MSC Material). MPM shall also own all Intellectual Property Rights derived from any of the foregoing in (i) through (v), developed\npursuant to this Agreement as Development Program Technology, regardless of inventorship. All of the foregoing in (i) through (v) shall be\nreferred to as “MPM Work Product.” MSC hereby assigns to MPM the entire right, title and interest in and to the MPM Work Product,\nincluding without limit, any Inventions and Intellectual Property Rights derived from the Development Program Technology associated with or\napplicable to such MPM Work Product.\n(b) MSC. As between the Parties, MSC shall own all Development Program Technology relating to (1) MSC Materials, (ii) all know-how\nand processes relating to the manufacture of MSC Materials, (iii) all analytical and/or quality control techniques used in the evaluation of MSC\nMaterials, (iv) all uses of any MSC Materials (without the use or inclusion of any MPM Material) in any and all end-use applications, and\n(v) any and all products, materials, formulations and the like that are made from or include an MSC Material (does not include an MPM\nMaterial). MSC shall also own all Intellectual Property Rights derived from any of the foregoing in (i) through (v), developed pursuant to this\nAgreement as Development Program Technology, regardless of inventorship. All of the foregoing in (i) through (v) shall be referred to as\n“MSC Work Product.” MPM hereby assigns to MSC the entire right, title and interest in and to the MSC Work Product, including without\nlimit, any Inventions and Intellectual Property Rights derived from the Development Program Technology associated with or applicable to\nsuch MPM Work Product.\n(c) Ownership Requiring A Steering Committee Decision . Subject to Section 7.2(e), the Steering Committee shall decide, on a case-by -\ncase basis, which Party owns, as between the Parties, Development Program Technology relating to: (i) any product, material, composition of\nmatter, system or the like that includes an MPM Material and an MSC Material (“Hybrid Product”), (ii) all know-how, processes, etc., relating\nto the manufacture of any Hybrid Product, (iii) all analytical and/or quality control techniques used in the evaluation of any Hybrid Product,\n(iv) any and all end-use applications of any Hybrid Product, provided that such end-use applications have never been commercially exploited\nby either of the Parties, or have been commercially exploited by both of the Parties, prior to the Effective Date, (v) any and all end-use\napplications of products, materials, formulations and the like that are made from or include any Hybrid Product, provided that such end-use\napplications have never been commercially exploited by either of the Parties, or have been commercially exploited by both of the Parties, prior\nto the Effective Date and (vi) Shared Development Program Technology. All of the foregoing in (i) through (vi) shall be referred to as “Hybrid\nWork Product.” An owner of any Hybrid Work Product as decided by the Steering Committee shall also own all of the Intellectual Property\nRights in the Development Program Technology derived from that Hybrid Work Product and the non-owning Party hereby assigns to the\nowning Party the entire right, title and interest in and to that Hybrid Work Product, including without limit, any Inventions and Intellectual\nProperty Rights derived from the Development Program Technology associated with or applicable to such Hybrid Work Product.\n(d) Joint Ownership As Default Decision. In the event that the Steering Committee is unable to reach a decision regarding the ownership\nof Development Program Technology and related Intellectual Property Rights resulting from Hybrid Work Product as contemplated in\nSection 7.2 (c) at the Steering Committee meeting that the particular ownership issue is presented for consideration, or within thirty (30) days\nthereafter should the Steering\nConfidential\n8\nCommittee decide that it needs more time to reach a definitive decision, then the Parties shall jointly own that Hybrid Work Product and such\nrelated Intellectual Property Rights until a definitive decision is reached, provided that, during any period of joint ownership, neither Party will\n(i) exercise such joint ownership in a way that is inconsistent with the intent and the terms and conditions of this Agreement, (ii) assign or\ntransfer title to any such work product or Intellectual Property Rights without the other Party’s express prior written consent, or (iii) license or\notherwise provide such Hybrid Work Product or Intellectual Property Rights to any third party, including without limitation any competitor of\nthe other Party or any infringer or potential infringer which the other Party is pursuing or plans to pursue. In the event that a definitive decision\nis reached with respect to the ownership of the subject Hybrid Work Product and related Intellectual Property Rights derived from\nDevelopment Program Technology, the owning party will own such Hybrid Work Product and such related Intellectual Property Rights under\nthe terms and conditions of this Agreement. In the event that a definitive decision assigning ownership of any Hybrid Work Product and related\nIntellectual Property Rights derived from Development Program Technology to one of the Parties is never reached, then the Parties will\ncontinue to jointly own such Hybrid Work Product and related Intellectual Property Rights derived from Development Program Technology\nsubject to the terms of this Section 7.2 (d).\n(e) Other Ownership Provisions. As between the Parties, the Previously Commercialized Party shall own all Development Program\nTechnology relating to the Prior End-Use Work Product in the end-use application that it has commercialized prior to the Effective Date. An\nowner of Prior End-Use Work Product shall also own all of the Intellectual Property Rights in the Development Program Technology derived\nfrom that Prior End-Use Work Product and the non-owning Party hereby assigns to the owning Party the entire right, title and interest in and to\nthat Prior End-Use Work Product, including without limit, any Inventions and Intellectual Property Rights in the Development Program\nTechnology associated with or applicable to such Prior End-Use Work Product.\n7.3 Research Licenses.\n(a) Subject to the terms and conditions of this Agreement, each Party hereby grants to the other Party and its Affiliates, on behalf of itself\nand its Affiliates, a non-exclusive, royalty-free, worldwide, revocable, limited license to use, during the term of this Agreement, the\nIndependent Technology of the owner Party, solely to permit the other Party’s (by itself and/or through its Affiliates’) performance of research\nand development activities in connection with the execution and implementation of any Development Program under this Agreement and/or to\npursue by itself, with no third Person (not including Affiliates) involvement, independent, internal research and development initiatives outside\nthe scope of this Agreement. In the event that a Party’s and/or its Affiliates’ (“Licensor Party”) Independent Technology is used under the\nlicense granted in this Section 7.3 (a) by the other Party and/or its Affiliates (“Licensee Party”) to pursue independent research and\ndevelopment initiatives outside the scope of this Agreement and such initiatives result in the creation or development of any Invention and/or\nTechnology, the Licensee Party hereby grants and agrees to grant to the Licensor Party, a non-exclusive, royalty-free, worldwide license under\nsuch Invention and/or Technology, as well as any Intellectual Property Rights derived from such Invention and/or Technology.\n(b) Subject to the terms and conditions of this Agreement, each Party hereby grants to the other Party and its Affiliates, on behalf of itself\nand its Affiliates, a non-exclusive, royalty-free, worldwide, revocable, limited license to use, during the term of this Agreement, the\nIntellectual Property Rights derived from the Development Program Technology directly related to the MPM Work Product, MSC Work\nProduct, Hybrid Work Product and Prior End-Use Work\nConfidential\n9\nProduct (as the case may be) of the owner Party, solely to permit the other Party’s performance (by itself and/or through its Affiliates) of\nresearch and development activities in connection with the execution and implementation of any Development Program under this Agreement\nand/or to pursue by itself, with no third Person (not including Affiliates) involvement, independent, internal research and development\ninitiatives outside the scope of this Agreement. In the event that a Party’s and/or its Affiliates’ (“Licensor Party”) Independent Technology is\nused under the license granted in this Section 7.3 (b) by the other Party and/or its Affiliate (“Licensee Party”) to pursue independent research\nand development initiatives outside the scope of this Agreement and such initiatives result in the creation or development of any Invention\nand/or Technology, the Licensee Party hereby grants and agrees to grant to the Licensor Party, a non-exclusive, royalty-free, worldwide license\nunder such Invention and/or Technology, as well as any Intellectual Property Rights derived from such Invention and/or Technology\n7.4 Commercial Principles.\nEach Party agrees to use commercially reasonable efforts to develop, implement and follow collaborative strategies for the commercialization\nof any MSC Material, MPM Material and/or Hybrid Product. The purpose of the foregoing obligation is to provide each Party with an equitable and\nbalanced opportunity to derive value and monetary return from opportunities that might result from any work or collaboration done under this\nAgreement. One component of any evaluation of a collaborative commercial strategy will include an analysis of the value proposition associated\nwith the joint pursuit of a commercial opportunity by the Parties. One such consideration is the Royalty Obligations that would be associated with\nthe commercial licenses granted under Sections 7.5 through 7.8, which will be negotiated and agreed to by the respective representatives of the\nParties through the Steering Committe in arm’s-length good faith negotiations. Each Party acknowledges and agrees that the agreement on the\nRoyalty Obligations is a condition precedent to the effectiveness of the commercial licenses granted under Sections 7.5 through 7.8 and the licensee\nParty will pay the Royalty Obligations during the term of such licenses. It is expected that the Steering Committee members will play a primary role\nin fulfilling the obligations under this Section 7.4 on behalf of their respective organizations. If, after using commercially reasonable efforts to satisfy\nthese obligations, the Parties decide that it is not commercially feasible or desirable to pursue a commercial opportunity jointly, each Party shall be\npermitted to separately pursue the opportunity. For the purpose of clarity, the Parties do not intend for anything contained in this Section 7.4 to create\nany partnership, agency, joint venture or the like between the Parties. Indeed, the Parties intend, at all times, to maintain their separate legal identities\nas they work together under this Agreement.\n7.5 MPM Licenses To MSC.\n(a) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MSC, MPM\nagrees to grant and does hereby grant to MSC and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, MPM Work Product to make, have made, use,\nsell, offer to sell and import MSC Materials and/or Hybrid Products, provided that this license shall not become effective and MSC shall not\nactually have any licensed rights under this Section 7.5 (a) until the applicable Royalty Obligations have been agreed to by the Parties as\nprovided in Section 7.5. This license does not grant MSC any sublicense rights and does not include any license to MPM’s Intellectual\nConfidential\n10\nProperty Rights that relate to MPM’s Independent Technology. MPM agrees not to enforce any infringement claim of the Intellectual Property\nRights licensed under this Section 7.5 (a) based on a use of MSC’s Materials and/or Hybrid Products by a customer who purchases MSC\nMaterials and/or Hybrid Products from MSC.\n(b) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MSC, MPM\nagrees to grant and does hereby grant to MSC and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, Prior End-Use Work Product to use a Hybrid\nProduct, and/or any products, materials, formulations and the like that are made from or include any Hybrid Product, provided that this license\nshall not become effective and MSC shall not actually have any licensed rights under this Section 7.5 (b) until the applicable Royalty\nObligations have been agreed to by the Parties as provided in Section 7.4. This license also includes a right for MSC to sublicense the licensed\nright of use to its customers.\n(c) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MSC, MPM\nagrees to grant and does hereby grant to MSC and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Independent Technology to make, have made, use, sell, offer to sell and import MSC Materials and/or\nHybrid Products, provided that this license shall not become effective and MSC shall not actually have any licensed rights under this\nSection 7.5 (c) until the applicable Royalty Obligations have been agreed to by the Parties as provided in Section 7.4. MPM agrees not to\nenforce any infringement claim of the Intellectual Property Rights licensed under this Section 7.5 (c) based on a use of MSC’s Materials and/or\nHybrid Products by a customer who purchases MSC Materials and/or Hybrid Products from MSC.\n7.6 MSC Licenses To MPM.\n(a) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MPM, MSC\nagrees to grant and does hereby grant to MPM and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, MSC Work Product to make, have made, use,\nsell, offer to sell and import MPM Materials and/or Hybrid Products, provided that this license shall not become effective and MSC shall not\nactually have any licensed rights under this Section 7.6 (a) until the applicable Royalty Obligations have been agreed to by the Parties as\nprovided in Section 7.4. This license does not grant MPM any sublicense rights and does not include any license to MSC’s Intellectual\nProperty Rights that relate to MSC’s Independent Technology. MSC agrees not to enforce any infringement claim of the Intellectual Property\nRights licensed under this Section 7.5 (a) based on a use of MPM’s Materials and/or Hybrid Products by a customer who purchases MPM\nMaterials and/or Hybrid Products from MPM.\n(b) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MPM, MSC\nagrees to grant and does hereby grant to MPM and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Intellectual Property Rights derived from, and only from, Prior End-Use Work Product to use a Hybrid\nProduct, and/or any products, materials, formulations and the like that are made from or include any Hybrid Product, provided that this license\nshall not become effective and MPM shall not actually have any licensed rights under\nConfidential\n11\nthis Section 7.6 (b) until the applicable Royalty Obligations have been agreed to by the Parties as provided in Section 7.4. This license also\nincludes a right for MPM to sublicense the licensed right of use to its customers.\n(c) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by MPM, MSC\nagrees to grant and does hereby grant to MPM and its Affiliates, on behalf of itself and its Affiliates, a nonexclusive, royalty-bearing,\nworldwide, revocable license under its Independent Technology to make, have made, use, sell, offer to sell and import MPM Materials and/or\nHybrid Products, provided that this license shall not become effective and MPM shall not actually have any licensed rights under this\nSection 7.5 (c) until the applicable Royalty Obligations have been agreed to by the Parties as provided in Section 7.4. MSC agrees not to\nenforce any infringement claim of the Intellectual Property Rights licensed under this Section 7.6 (c) based on a use of MPM’s Materials\nand/or Hybrid Products by a customer who purchases MPM Materials and/or Hybrid Products from MPM.\n7.7 Cross Licenses\n(a) Subject to the terms and conditions of this Agreement, including the payment of applicable Royalty Obligations by the licensee Party\nunder this Section, each Party agrees to grant and does hereby grant to the other Party and its Affiliates, on behalf of itself and its Affiliates, a\nnonexclusive, royalty-bearing, worldwide, revocable license under its Intellectual Property Rights derived from, and only from, Hybrid Work\nProduct that it owns under this Agreement to make, have made, use, sell, offer to sell and import Hybrid Products, provided that this license\nshall not become effective and neither licensee Party shall actually have any licensed rights under this Section 7.7(a) until the applicable\nRoyalty Obligations have been agreed to by the Parties as provided in Section 7.4. This license does not grant either Party any sublicense\nrights and does not include any license to either Party’s Intellectual Property Rights that relate to a granting Party’s Independent Technology.\nEach Party agrees not to enforce any infringement claim of the Intellectual Property Rights licensed under this Section 7.7 (a) based on a use\nof Hybrid products by a customer who purchases Hybrid Products from the licensee Party.\n7.8 Other Additional License. While the Parties have endeavored to include all licensing arrangements in this Agreement that are deemed\nnecessary or desirable to allow each Party to conduct the activities contemplated in this Agreement or as a result of this Agreement, the Parties\nrecognize that there may be a need to subsequently establish other licensing arrangements between the Parties. In the event that a Party decides\nthat it is necessary or desirable to enter into one or more licensing arrangements not included in this Agreement, each Party agrees to enter into\ngood faith negotiations with each other for such licenses. Any additional licenses shall only become effective by way of a written amendment\nto this Agreement signed by a duly authorized representative of each Party.\n7.9 Patent Procurement Procedures.\n(a) An owner of the MPM Work Product, MSC Work Product, Hybrid Work Product and Prior End-Use Work Product, as set forth\nabove, shall have the right, in its own discretion, to file patent applications in the United States and in any country of the world outside the\nUnited States in its own name. Each Party, at the request of the other Party, shall exercise reasonable efforts to support the filing of patent\napplications by the other Party in their respective technical fields of ownership. Such efforts shall include support by inventors and\nConfidential\n12\nexecution of all legal documents (applications, assignments and declarations). All costs of preparing, filing and prosecuting patent applications\nowned by a Party, and of maintaining such Patents, shall be borne by said Party. In the event a Party decides against filing a patent application\ndirected to any Development Program Technology that it owns under this Agreement and, additionally, the owning Party does not wish to\nmaintain such Development Program Technology as a trade secret, the other non-owning Party shall have the right to take ownership of such\nDevelopment Program Technology for no additional consideration, and agrees that it shall bear all costs associated with the procurement and\nmaintenance of any patents. Analogously, if the owner of a patent directed to Development Program Technology resulting from this Agreement\nis no longer interested in maintaining such patent, the owner will provide the other Party with reasonable advanced notice of its intent to allow\nthe patent to lapse to give the other Party the opportunity to pay the maintenance fees and assume ownership of the patent in question for no\nadditional consideration. Also, if a Party decides against filing a patent application directed to Development Program Technology in a\nparticular country or countries that are of interest to the other Party, the owning Party will allow the other Party to effectuate the filings in those\nother countries, at the other Party’s expense, and the other Party will assume ownership of that patent application and any patent(s) issuing\ntherefrom without the need to pay any additional consideration. In the event that a transfer by one Party to the other Party occurs under this\nSection 7.9 (a), the transferor shall retain a royalty-free, worldwide, nonexclusive, irrevocable license under the transferred Development\nProgram Technology and/or Intellectual Property Rights in question.\n(b) In those instances where each Party will be filing a patent application that will disclose and/or claim subject matter that is related or\nsimilar to the subject matter presented in the other Party’s patent application, the Parties agree to file their respective priority patent\napplications on the same day. In order to facilitate and execute this requirement, the Parties’ patent counsel will coordinate and implement the\nappropriate actions.\n(c) The Parties agree that when filing patent applications directed to their respective areas of technical subject matter, they will not claim\nsubject matter owned by the other Party, without receiving the other Party’s written consent.\n(d) A separate record of conception shall be prepared for each invention relating to Technology conceived under any Development\nProgram. Each conception record shall include a proper description of the conceived invention. The conception record shall also include a\ndescription of an operative method of making the invention (where appropriate), as well as a description of the utility of the invention. The\nconception record, including the foregoing descriptions, shall be read by one having a level of skill in the art in the technical field in question\nrequired to understand the substance of such record (“Corroborating Witness”). Finally, the conception record shall be signed and dated by the\nperson(s) who conceived the invention and by the Corroborating Witness. Subject to Section 8 (where appropriate), a copy of each conception\nrecord generated under this Agreement shall be provided to the other Party for review, along with the written reports contemplated in\nSection 4.2 .\n(e) The Parties agree and acknowledge that this Agreement is and shall be treated as a “joint research agreement” within the meaning of\nTitle 35 U.S .C. §103(c). The Parties agree to permit one another the right to disclose to the United States Patent and Trademark Office\n(“USPTO”) and other foreign patent prosecution offices, where appropriate or necessary, the existence and identifying information of patent\napplications that are filed by the other Party; and the existence of this Agreement.\nConfidential\n13\n(f) While either Party may rely upon Title 35 U.S .C. §103(c) to overcome a prior art issue or to overcome a rejection imposed by the\nUSPTO, so that the Party disqualifies the other Party’s patent or patent application as prior art, the Parties agree to use reasonable efforts to\ntraverse a rejection by the USPTO without resorting to Title 35 U.S .C. §103(c). Should a Party ultimately elect, at its sole option and\ndiscretion, to rely upon Title 35 U.S.C. §103(c), the Parties shall cooperate in obtaining and filing any and all required papers, documents,\napprovals, consents and/or authorizations and including amending patent applications to identify the Parties as necessary to take advantage of\nTitle 35 U.S .C. §103(c).\n(g) The Parties agree that, if a double patenting issue arises in either a reexamination proceeding, an issued patent, or in a patent\napplication that has been filed under this Agreement, the Parties shall use reasonable efforts to address the issue without filing a terminal\ndisclaimer. However, if a Party ultimately determines, at its sole option and discretion, that the best course of action for that Party is to file a\nterminal disclaimer, the Parties agree to sign, and otherwise cooperate in the execution and filing, of a terminal disclaimer that complies with\n37 C.F.R. §1.321, and any other similar USPTO rule or regulation then in effect. The Parties recognize that filing such a terminal disclaimer\nprohibits the Parties from separately enforcing the U.S . patents that issue from the involved applications or the involved patents (hereinafter\ncollectively “Involved U.S. Patents”). Should issues of enforcement arise with respect to the Involved U.S . Patents, the Parties agree to\ndiscuss, in good faith, terms and conditions for jointly enforcing such Involved U.S. Patents.\n7.10 Further Acts and Assistance. The Parties agree to perform, during and after the term of this Agreement, all customary acts that are\nreasonably necessary or desirable to permit and assist the other in obtaining, perfecting and enforcing the full benefits, enjoyment, rights and\ntitle in the Intellectual Property assigned to the other Party under this Agreement. In the event that it becomes necessary to compensate any\nemployee of MSC or MPM who invented any Invention or Intellectual Property Rights, both MPM and MSC shall be obligated to compensate\nits own employees and shall have no obligation to compensate any of the other Party’s employees.\n8. Confidential Information.\n8.1 Each Party will maintain in strict confidence all Confidential Information received from the other Party. Each Party agrees that it will\nnot use, disclose to any third Person or grant use of such Confidential Information except to the extent required to achieve the Purpose or as\notherwise authorized in advance by the other Party in writing. Each Party agrees to use at least the same standard of care as it uses to protect its\nown confidential information of a similar nature to ensure that its employees do not disclose or make any unauthorized use of such\nConfidential Information, but in no case less than a reasonable standard of care. Each Party will disclose the other Party’s Confidential\nInformation only to those of such Party’s employees, and subject to the other Party’s prior written approval, consultants and contractors who\nneed to know such information to assist the Party in achieving the Purpose. Each Party certifies that each such employee, consultant and\ncontractor will have agreed in writing, either as a condition to employment or in order to obtain the other Party’s Confidential Information, to\nbe bound by confidentiality terms and conditions substantially similar to those terms and conditions applicable to each Party under this\nAgreement. Each Party guarantees that any of its employees, consultants, contractors, etc. that receive the other Party’s Confidential\nInformation hereunder will abide by the confidentiality and limited use obligations undertaken by a receiving Party under this Agreement.\nEach Party will promptly\nConfidential\n14\nnotify the other Party upon discovery of any unauthorized use or disclosure of such Party’s Confidential Information.\n8.2 The Parties agree that the existence of this Agreement and its terms will also be considered Confidential Information and agree not to\ndisclose the terms of this Agreement to a third Person without the prior written consent of the other Party, except (i) as required to enforce the\nterms of this Agreement, (ii) to financial institutions, accountants, advisors and counsel or (iii) as required by statute, regulation or the order of\na court of competent jurisdiction. A disclosure of any Confidential Information (i) in response to a valid order by a court or other governmental\nbody or (ii) as otherwise required by law will not be considered to be a breach of this Agreement or a waiver of confidentiality for other\npurposes; provided, however, that the Party making such disclosure will provide prompt prior written notice thereof to the owner Party to\nenable the owner Party to seek a protective order or otherwise prevent such disclosure.\n8.3 The foregoing obligations of confidentiality in this Section 8 will not apply to the extent that it can be established by the receiving\nParty by competent proof that such Confidential Information: (i) was generally available to the public or otherwise part of the public domain at\nthe time of disclosure to the receiving Party; (ii) became generally available to the public or otherwise part of the public domain after the\nowner Party disclosed such information to the receiving Party, other than through any act or omission of the receiving Party in breach of this\nSection 8, or (iii) was independently created or developed by such Party without reference to the Confidential Information of the other Party.\n8.4 A Party that receives product or material samples from the other Party shall not reverse engineer or analyze samples for chemical or\nstructural composition without the prior written consent of the disclosing Party. The results of all analyses of samples will be regarded as\nConfidential Information of the disclosing Party and will be treated by the receiving Party with the same strict confidentiality and restrictions\non limited-use and disclosure as the other Confidential Information referred to above. The receiving Party will provide the disclosing Party\nwith a written summary of these analyses.\n8.5 Publicity. Except as otherwise expressed in this Agreement, neither Party shall, without the prior written consent of the other, make\nany news release, public announcement, or other disclosure to any third Person or any public denial or public confirmation of the existence of\nthis Agreement, any disclosure of the Parties’ working together or any other fact concerning, arising out of or in connection with this\nAgreement, the terms or provisions hereof or any subsequent arrangement(s) between the Parties concerning any activities hereunder. Each\nParty additionally agrees that the name of the other Party, and their respective employees’ names, will not be used for purposes of advertising\nor publicity without the other Party’s prior written consent.\n8.6 Publications. Each Party additionally agrees that in order to safeguard patent rights, each Party, upon the request of the other, will\ndelay any public disclosure of any Invention generated in the course of a Development Program under this Agreement for a time period of up\nto three (3) months from the date of disclosure to the other Party in order to permit the filing of patent application(s). Each Party agrees to\ndisclose the filing of any patent application arising from this Agreement to the other, permit the other Party’s review thereof, and to cooperate\nin the filing of any such patent applications desired by the disclosing Party as set forth in Section 7.9 hereof. Should any such patent\napplication of one Party contain any\nConfidential\n15\nConfidential Information of the other Party, then the Parties will resolve prior to filing whether such information is to be deleted from such\napplication before its filing.\n9. Warranties and Liability.\n9.1 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY\nREPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY\nWARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT WITH RESPECT\nTO THE SUBJECT MATTER OF THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, CONFIDENTIAL INFORMATION,\nINTELLECTUAL PROPERTY RIGHTS, TECHNOLOGY, DEVELOPMENT PROGRAM WORK PRODUCT, INDEPENDENT\nTECHNOLOGY, MATERIALS, PRODUCTS AND THE LIKE, OR ANY PORTION OF COMPONENT THEREOF.\n9.2 IN NO EVENT SHALL A PARTY BE LIABLE FOR OR OBLIGATED IN ANY MANNER TO PAY ANY CONSEQUENTIAL,\nSPECIAL, PUNITIVE OR INDIRECT DAMAGES TO THE OTHER PARTY OR TO ANY OF ITS AGENTS, EMPLOYEES,\nCONTRACTORS, REPRESENTATIVES OR AFFILIATES FOR BREACH OF ANY PROVISIONS OF THIS AGREEMENT.\n10. Term and Termination.\n10.1 Term. Unless earlier terminated pursuant to Section 10.2 or 10.3, this Agreement begins on the Effective Date and shall continue for\na period of twenty (20) years, which term may be extended by the Parties upon mutual written agreement.\n10.2 Termination for Cause. If either Party materially breaches this Agreement, the non-breaching may terminate this Agreement or, if\napplicable, a particular Development Program, by written notice; provided, however, that the written notice clearly describes the nature of the\nalleged breach, the events and circumstances that gave rise to the alleged breach and a clear explanation of whether this Agreement, a\nparticular Development Program or both are being terminated. No termination under this Section 10.2 will be effective until the non-breaching\nParty provides written notice of such breach to the other Party and such Party fails to cure such breach within thirty (30) days of such notice.\nAny termination shall become effective at the expiration of such thirty (30) day notice period. Notice of termination for cause will be in\nwriting and sent by certified mail, postage prepaid, return receipt requested. If a particular Development Program is terminated without the\ntermination of the entire Agreement, this Agreement will be terminated only with respect to such Development Program and will remain in\neffect with respect to the then outstanding Development Programs in accordance with their terms and or any other Development Programs the\nParties decide to pursue under this Agreement.\n10.3 Termination for Change of Control. If a Party undergoes a Change of Control, unless such event has been consented to in writing by\nthe other Party under Section 12.2, the other Party may terminate this Agreement immediately upon written notice.\n10.4 Effect of Termination.\nConfidential\n16\n(a) Upon any termination or expiration of this Agreement, all rights and obligations granted to either Party under this Agreement will\nimmediately terminate, except as provided in Section 10.5 and that Sections 8 and 9 will survive in accordance with their terms. Upon any\ntermination or expiration of this Agreement, each Party will cease all use of and return the other Party’s property and Confidential Information,\nexcept for one archival copy or to the extent such property or Confidential Information is needed to be retained for a Party to exercise any\nsurviving rights provided under Section 10.5 .\n(b) There may be one or more Development Programs pending at the time when notice of termination of this Agreement is first given. As\nof the date of receipt of that notice, each Party may decide to discontinue disclosing Confidential Information relating to its Independent\nTechnology to the other Party for the pending Development Programs; however, except in the case of a termination the Development Program\nin question or the entire Agreement, the Parties agree to work together diligently to bring each pending Development Program to a logical and\norderly close. Among other things, the Parties shall meet promptly thereafter in order to (a) prioritize work during the remaining term of each\nDevelopment Project, and (b) agree upon a reasonable time frame for the Parties to diligently complete such Development Programs on which\nthe Parties are close to completion. The Parties agree that their cooperative efforts from that time forward shall be focused to accomplish the\nagreed work, even if the work extends for up to one hundred and eighty (180) days beyond the noticed termination date.\n10.5 Survival. Nothing herein shall be construed to release any liability or obligation of either Party to the other for acts or omissions\nprior to the termination or expiration of this Agreement. Without limiting the foregoing:\n(a) If a Party receiving commercial licenses under Sections 7.5 through 7.8 (“Licensee Party”) terminates under Section 10.2 for the\nuncured material breach of a Party granting licenses under those Sections (“Licensor Party), the licenses and rights granted under those\nSections will survive any such termination in accordance with their terms, provided that the Licensee Party continues to pay Royalty\nObligations for such licenses. Any such licenses and rights shall survive for a period that is co-extensive with the last to expire Intellectual\nProperty Right subject to the license in question.\n(b) If Licensor Party terminates under Section 10.2 for Licensee Party’s uncured material breach, then:\n(i) The commercial licenses granted under Sections 7.5 through 7.8 will terminate and be of no further force and effect except that\nLicensee Party may continue to exercise such licenses solely as necessary to (A) continue to sell any inventory of products related to\nsuch licenses, and to manufacture and sell all products related to such licenses that are then in the process of being manufactured, for a\nperiod of no longer than six (6) months after the effective date of termination, and (B) to meet Licensee Party’s then-existing (as of the\neffective date of termination) contractual obligations to third parties, for a period of no longer than [twelve (12)] months after the\neffective date of termination, subject to payment of applicable Royalty Obligations for such licenses; and\n(ii) Upon the end of the applicable period set forth in Section 11.5(b)(i), each sublicense previously granted by Licensee Party or\nany Affiliate of such Licensee Party under this Agreement shall remain in effect and shall become a direct license of such rights by\nLicensor Party to such sublicensee, subject to such sublicensee agreeing in\nConfidential\n17\nwriting to assume Licensee Party’s terms, conditions and obligations to Licensor Party under this Agreement as they pertain to the\nsublicensed rights.\n(c) Termination or expiration of this Agreement will not relieve either Party from its payment obligations hereunder for any charges,\npayments or expenses due to the other Party that accrued prior to the termination or expiration date, and such amounts (if not otherwise due on\nan earlier date or disputed in good faith) shall be immediately due and payable on the termination or expiration date.\n11. Miscellaneous.\n11.1 Notices. All notices and requests under this Agreement (i) shall be in writing, (ii) may be delivered personally, sent by commercial\ncourier with tracking capabilities - costs prepaid, mailed by certified or registered mail—return receipt requested with postage prepaid, at the\noption of the sending Party, and (iii) shall be sent to and shall be effective on the date of recorded delivery at the receiving Party’s address for\nnotice. The initial address for notice is set forth below. Any subsequent address for notice shall be changed by notice given pursuant to this\nSection 11.1.\nIf to MSC:\nChief Technology Officer\nMomentive Specialty Chemicals Inc.\n180 East Broad Street\nColumbus, Ohio 43215\nwith a simultaneous copy to the General Counsel at the same address.\nIf to MPM:\nChief Technology Officer\nMomentive Performance Materials Inc.\n22 Corporate Woods Boulevard\nAlbany, New York 12211\nwith a simultaneous copy to the General Counsel at the same address.\n11.2 Assignment. Neither Party shall have the right to assign or transfer this Agreement or any right, obligation of performance, or\ninterest hereunder, whether voluntary or involuntary, without first receiving the other Party’s prior written consent. Any attempt at assigning or\ntransferring this Agreement in violation of this Section 1l.2 shall be invalid and void and shall have no effect.\n11.3 Waivers. No waiver by a Party of any condition or breach of any provision of this Agreement will be effective unless in writing, and\nno waiver in any one or more instances will be deemed to be a further or continuing waiver of any such condition or breach in other instances\nor a waiver of any other condition or breach of any other provision.\n11.4 Counterparts. This Agreement may be executed simultaneously in identical counterparts, each of which will be deemed an original,\nbut all of which together will constitute one and the same instrument. A facsimile transmission of the executed signature page of this\nAgreement will constitute due and proper execution of this Agreement by the Party executing the signature page.\nConfidential\n18\n11.5 Construction. The Section headings are for convenience only and will not be deemed part of this Agreement. The language of this\nAgreement will be construed according to its fair meaning. Any rule of construction resolving ambiguities against the drafting Party will not\napply in the interpretation of this Agreement. No specific representation, warranty or covenant contained in this Agreement will limit the\ngenerality or applicability of a more general representation, warranty or covenant.\n11.6 Independent Contractors. Each Party’s relationship with the other is that of an independent contractor, and nothing in this\nAgreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. Neither Party will\nbe entitled to any of the benefits that the other may make available to its employees, including, but not limited to, group health or life\ninsurance, profit sharing or retirement benefits. Neither Party is authorized to make any representation, contract or commitment on behalf of\nthe other.\n11.7 Severability. If any provision of this Agreement is unenforceable or invalid under any applicable law or is so held by applicable\ncourt decision, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will\nbe changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable\nlaw or applicable court decisions; provided, however that if the Parties are unable to so change the provision, then the affected Party may\nterminate this Agreement upon thirty (30) days notice.\n11.8 Governing Law. This Agreement and any dispute under this Agreement will be governed by and construed under the laws of the\nState of New York without regard to any of its conflict of laws principles.\n11.9 Survival. Subject to section 10.5, any provisions of this Agreement shall continue in full force and effect after termination of this\nAgreement, which are provisions that by their nature or purpose are intended to survive the termination of this Agreement.,\n11.10 Entire Understanding. This Agreement and the attached exhibits set forth the entire agreement and understanding of the Parties in\nrespect to the transactions contemplated and supersedes all prior agreements, arrangements, representations, term sheets and understandings\nrelating to the subject matter of this Agreement. This Agreement may be amended, modified or supplemented only in a writing signed by\nrespective officers of the Parties. This Agreement is not intended to confer upon any person, other than the signing Parties, any rights or\nremedies.\nConfidential\n19\nIN WITNESS WHEREOF, the authorized representatives of the Parties have signed this Agreement.\nMPM:\nMSC:\nMOMENTIVE PERFORMANCE MATERIALS INC.\nMOMENTIVE SPECIALTY CHEMICALS INC.\nBy:\nAuthorized Person\nBy:\nAuthorized Person\nPrint Name:\nPrint Name:\nTitle:\nTitle:\nDate:\nMarch 17, 2011\nDate:\nMarch 17, 2011\nConfidential\n20\nExhibit A\n(MODEL) DEVELOPMENT PROGRAM FORM\nThis Development Program Form describes the research program to be conducted by the Parties, and is governed by, is an attachment to and is,\nupon execution by the Parties, incorporated by reference into the Master Confidentiality and Joint Development Agreement by and between\nMomentive Specialty Chemicals Inc. (“MSC”) and Momentive Performance Materials Inc. (“MPM”) with an Effective Date of October 1, 2010 (the\n“Agreement.”) All the terms used in this Development Program Form shall retain the same meaning as defined in the Agreement and such\ndefinitions are incorporated herein by reference. In the event of any conflict between the provisions of the Agreement and of this Development\nProgram Form, the terms of the Agreement shall prevail. The terms and conditions of this Development Program Form are applicable solely to the\nresearch and development program described herein and in no way affect or alter the terms of any other Development Program Forms incorporated\ninto the Agreement prior to or after the Effective Date of this Development Program Form. This Development Program Form shall be effective as of\nthe date of the last signature below.\n1. Scope:\n2. Date of Program Commencement:\n3. Content and Timeline of Project:\n4. Business Units Involved in Program:\n5. Roles and Responsibilities:\n6. Key Contact Persons:\n7. Protocols for:\nA. Experimental Plans\nB. Data and Information Exchange\nC. Reporting and Periodic Progress Reports\n6. Deliverables:\nIN WITNESS WHEREOF, the authorized representatives of the Parties have signed this Agreement.\nConfidential\n21\nMPM:\nMSC:\nBy:\nBy:\nPrint Name:\nPrint Name:\nTitle:\nTitle:\nDate:\nDate:\nConfidential\n22
+e704bb47fa4ed83b77b7e3b70e4ca8e6.pdf	effective_date jurisdiction party term	EX-10.30 8 ex10p30.htm\nExhibit 10.30\nCONSULTING AND NON-DISCLOSURE AGREEMENT\nAND GENERAL RELEASE\nANHEUSER-BUSCH COMPANIES, INC., a Delaware corporation with its principal offices at One Busch Place, St. Louis,\nMissouri, 63118, its affiliates, subsidiaries, divisions, successors and assigns, and their directors, officers, employees and agents, both\nin their official and individual capacities (all of whom are collectively referred to throughout this Consulting and Non-Disclosure\nAgreement and General Release as “Anheuser-Busch”), and MARK T. BOBAK (“Bobak”), residing in St. Louis, Missouri, mutually\ndesire to enter into this Consulting and Non-Disclosure Agreement and General Release (“Agreement”) and agree as follows:\n1.\nTermination of Employment\nBobak agrees to terminate employment with Anheuser-Busch on December 31, 2007, (“Termination Date”) in order to allow him\nto return to the private practice of law.\n2.\nConsulting Payments\nAnheuser-Busch agrees that during the period from the Termination Date through December 31, 2012 (the “Consulting\nPeriod”), so long as Bobak fulfills any assigned duties and complies with all Anheuser-Busch policies and the provisions of this\nAgreement:\nA.\nBobak will be paid a consulting fee of $52,884 per month. All consulting payments shall be payable in semi-monthly\ninstallments on the 15th and last day of each month, less applicable withholding. In the event that Bobak dies prior to December 31,\n2012, Anheuser-Busch agrees to pay any remaining consulting payments due under this Agreement to Bobak’s spouse unless\notherwise directed in writing by Bobak.\nB.\nBobak agrees to devote the time necessary to complete any projects assigned to him by the Chief Executive Officer or\nhis designee. Anheuser-Busch will provide reasonable advance notice to Bobak of any work assignments, and will take into\nconsideration Bobak’s other commitments. Bobak also agrees that he will fully\ncooperate with any request made by Anheuser-Busch relating to or arising out of corporate transactions, labor relations, government\naffairs, litigation or any other matter that Bobak worked on, learned of, or became familiar with during his employment with Anheuser-\nBusch. Bobak will work from his personal residence or office and will not be provided with a company office or reserved parking\nspot. Bobak may retain his Blackberry/cell phone, computer, home fax machine, and company e-mail address for purposes of\nperforming services contemplated by this Agreement. Such items will be returned upon request by Anheuser-Busch. Subject to the\nprovisions of this Agreement and provided there is no interference with Bobak’s efforts as requested by Anheuser-Busch, Bobak may\nprovide services to other employers at any time after the Termination Date. Bobak agrees to provide to the Chief Executive Officer a\nreport of all projects and assignments that he is working on for Anheuser-Busch on a quarterly basis.\nC.\nAnheuser-Busch will reimburse Bobak, pursuant to company expense reimbursement guidelines, for all ordinary,\nnecessary and reasonable business expenses incurred by Bobak while conducting assignments for Anheuser-Busch at the direction of\nthe Chief Executive Officer or his designee.\nD.\nExcept as otherwise provided in this Agreement, Bobak agrees to return all Anheuser-Busch property (including, but\nnot limited to, company documents and records, whether in electronic or paper format, and all copies thereof, computers, cell phones,\nblackberries, fax machines, pagers, security badge and credit cards) on or before the Termination Date.\nE.\nAnheuser-Busch will continue to provide Bobak and his eligible dependents with health care benefits as described\nherein (“Health Benefits”). Until Bobak reaches the age of 58, he and his eligible dependents will continue to participate in the Group\nInsurance Plan for Certain Employees of Anheuser-Busch Companies, Inc. and its Subsidiaries (“Group Insurance Plan”), except that\nhis benefits under the Group Insurance Plan will be limited to insured medical, dental, vision and prescription drug benefits (“Health\nBenefits”) that are materially similar to the health benefits provided from time to time to Anheuser-Busch full-time salaried employees,\nand subject to the same benefit limits, co-payments, premium payments and deductibles. Upon Bobak\n2\nreaching age 58, he and his eligible dependents will participate in the Group Insurance Plan for Certain Retirees of Anheuser-Busch\n(Retiree Insurance Plan), except that the Health Benefits will be limited to those that are materially similar to the health benefits\nprovided from time to time to Anheuser-Busch retirees and subject to the same benefits limits, co-payments, premium payments and\ndeductibles. The selection of insurance carriers to provide the Health Benefits shall be in the sole discretion of Anheuser-Busch\nCompanies, Inc. The Health Benefits provided to Bobak during the Consulting Period shall, for purposes of coordination of benefits, be\nsecondary to any subsequent benefit coverage(s) for which Bobak, his spouse and eligible dependents become eligible as a result of\nBobak becoming an employee for any other employer. Bobak agrees that in the event he obtains new employment during the\nConsulting Period, he shall notify the Anheuser-Busch Companies, Inc. Vice President, Corporate Human Resources, in writing within\n30 days after he first becomes eligible for any health benefit coverage through any subsequent employer(s) and will provide Anheuser-\nBusch with a copy of the summary plan descriptions for such coverage(s).\nF.\nExcept as otherwise specifically provided herein, during the Consulting Period Bobak will not be eligible for any\nbenefits from Anheuser-Busch Companies, Inc., or any of its subsidiaries, including, but not limited to, the following:\ni) long-term disability insurance coverage;\nii) short-term disability coverage;\niii) life insurance or retiree life insurance;\niv) paid sick days;\nv) health care and/or dependent care spending account benefits;\nvi) legal assistance benefits;\nvii) country club membership;\nviii) monthly beer tickets and/or other complimentary beer; and\nix)\naccess to, or use of, the executive dining room, fitness center or barber shop.\nG.\nSubject to review by the Compensation Committee of the audited financial statements and its certification that the\nperformance goal set forth in the 2007 Officer\n3\nBonus Program has been met, Bobak shall receive a bonus for 2007 in the amount of $600,000 no later than March 1, 2008.\nH.\nNotwithstanding Bobak’s termination of employment, unvested stock option grants made to Bobak in 2005, 2006, and\n2007 shall not terminate and shall vest and become exercisable in accordance with their original schedule; vested stock option grants\nmade to Bobak prior to 2005 shall not terminate and shall remain exercisable for a period of five years following termination of\nemployment (or, if shorter, for their stated terms); vested stock option grants made to Bobak in 2005 and afterwards shall not terminate\nand shall remain exercisable for their stated terms; and restricted stock grants made to Bobak shall not terminate and shall vest in\naccordance with their original terms, but only to the extent that the performance goals related to such grants are achieved. All such\ngrants shall otherwise remain subject to the terms of the applicable plans and agreements under which they were granted.\nI.\nBobak shall be eligible for incentive payments for 2008 and 2009 based on the successful completion of certain key\ninitiatives and the attainment of certain key objectives in the Legal and Industry and Government Affairs Departments, as determined\nby the Chief Executive Officer of Anheuser-Busch in his sole discretion.\n3.\nSeparation Benefits\nA.\nBobak agrees that upon his Termination Date, he will not be entitled to any severance benefits or any retiree life\ninsurance benefits under any benefit plan of Anheuser-Busch Companies, Inc., or any of its subsidiaries.\nB.\nAfter his Termination Date, Bobak will be entitled to elect distribution of his benefits from the Anheuser-Busch Salaried\nEmployees’ Pension Plan (“SEPP”) and the Anheuser-Busch Deferred Income Stock Purchase and Savings Plan (“401(k) Plan”)\npursuant to the terms of those plans. Bobak understands that processing of benefits from the SEPP or the 401(k) Plan will not begin\nuntil he notifies the SEPP or 401(k) Plan Administrator in writing that he wants to receive a distribution of benefits from the respective\nplan. Bobak shall become vested in his accrued benefit under the Anheuser-Busch Supplemental Executive Retirement Plan (“SERP”)\non the Termination Date, and shall receive his distribution under the SERP as a lump sum payment in the amount of\n4\n$1,304,118 on or about the first regularly scheduled business day after January 1, 2013. Bobak will also receive a lump sum payment\nof $1,095,882 on or about the first regularly scheduled business day after January 1, 2013 as payment of additional pension benefits\nhe would have accrued had he remained employed throughout the Consulting Period.\n4.\nNo Admission of Liability\nBobak acknowledges and agrees that he would not receive all the payments and benefits specified in this Agreement except\nfor his execution of this Agreement and his fulfillment of its terms. Neither the making of this Agreement, nor anything contained in it,\nshall in any way be construed or considered to be an admission by Anheuser-Busch of noncompliance with any law or of any other\nwrongdoing.\n5.\nRelease of Liability\nA.\nExcept for any violation of the terms of this Agreement by Anheuser-Busch, Bobak, of his own free will, voluntarily\nreleases and forever discharges Anheuser-Busch from all actions, causes of action, claims, debts, charges, complaints, contracts\n(whether oral or written, express or implied from any source) and promises of any kind, in law or equity, whether known or unknown,\nwhich Bobak, his heirs, executors, administrators, successors and assigns (referred to collectively throughout this Agreement as\n“Bobak”) may have from all time in the past to the effective date of this Agreement, including, but not limited to, all matters or claims\nrelating to or arising out of Bobak’s employment by Anheuser-Busch and the cessation of his employment and including, but not limited\nto, any violation of:\n(1) Title VII of the Civil Rights Act, as amended;\n(2) Sections 1981 through 1988 of Title 42 of the United States Code;\n(3) the Employee Retirement Income Security Act, as amended;\n(4) the Health Insurance Portability and Accountability Act;\n(5) the Family and Medical Leave Act;\n(6) the Age Discrimination in Employment Act, as amended;\n(7) the Americans with Disabilities Act;\n5\n(8) the Missouri Human Rights Act;\n(9) the Sarbanes-Oxley Act of 2002;\n(10) any other local, state or federal law, regulation or ordinance and/or public policy, contract, tort or common law\nhaving any bearing on the terms and conditions and/or cessation of his employment with Anheuser-Busch.\nExcept as otherwise provided in this Agreement, this release shall not apply to any claim for benefits that may be due to Bobak\nor his eligible dependents under any Anheuser-Busch employee benefit plan in which Bobak or his eligible dependents are or were\nparticipants.\nB.\nBobak warrants that he has not caused or permitted to be filed on his behalf any charge, complaint, or action before any\nfederal, state or local administrative agency or court against Anheuser-Busch. In the event that any such claim is asserted in the future,\nBobak agrees that this Agreement will act as a complete bar to his re-employment or to his recovery of any amount from Anheuser-\nBusch resulting, directly or indirectly, from any lawsuit, remedy, charge or complaint whether brought privately by him or by anyone\nelse, including any federal, state or local agency, whether or not on his behalf or at his request.\n6.\nConfidentiality\nA.\nAs a result of his employment with Anheuser-Busch, Bobak has gained valuable confidential information and trade\nsecrets relevant to Anheuser-Busch’s business operations including its information technology. In light of the highly competitive nature\nof the industry in which Anheuser-Busch’s business is conducted, Bobak understands and agrees that he will keep in strict secrecy\nand confidence, and is specifically prohibited from disclosing, any and all unique, confidential and/or proprietary information and\nmaterial belonging or relating to Anheuser-Busch that is not a matter of common knowledge or otherwise generally available to the\npublic including, but not limited to, business, financial, trade, sales, technical or technological information, or corporate sales and\nmarketing strategies, to any entity that competes with Anheuser-Busch. In addition, Bobak agrees that he will not use any such\nconfidential information,\n6\nmaterials or trade secrets for the benefit of any of Anheuser-Busch’s competitors and/or against the best interests of Anheuser-Busch.\nB.\nBobak agrees that he will make no public statements and take no public action that disparages or is detrimental to\nAnheuser-Busch (including without limitation, its directors, officers and employees), or would otherwise cause or contribute to\nAnheuser-Busch being held in disrepute by the general public, customers or employees. Anheuser-Busch Companies, Inc. (including,\nwithout limitation, its directors and officers) agrees that it will take no official public action that is intended to disparage or be\ndetrimental to Bobak. Anheuser-Busch also agrees to provide a mutually agreed-upon letter of reference to Bobak, and to provide a\ncopy of such letter in response to any inquiry to the office of the Anheuser-Busch Companies, Inc. Vice President, Corporate Human\nResources, from a prospective employer regarding Bobak’s employment by Anheuser-Busch.\nC.\nBobak agrees that he has obligations under the Missouri Rules of Professional Conduct, that those obligations will\nsurvive the termination of his employment, and that nothing herein shall be deemed to abridge, impair or waive such obligations.\n7.\nRestrictive Covenants\nA.\nExcept as specifically provided in subparagraph 7B below, or as otherwise agreed to in writing by Anheuser-Busch,\nand upon such terms and conditions as Anheuser-Busch may impose, from the date of the Agreement until December 31, 2012,\nBobak shall not, anywhere in the world, engage, directly or indirectly, in any activity for, or on behalf of, any business or organization\nthat manufactures, sells or distributes alcohol beverages and/or no-alcohol malt beverages, that promotes or encourages any\nrestrictions on, or regulation of, the use, distribution or marketing of alcohol beverages, or that otherwise competes with any current\nbusiness activity of Anheuser-Busch, either alone, as a member of a partnership or association, as an officer, director, employee,\nconsultant, lobbyist or representative of or to any corporation, industry trade association, not-for-profit organization, or other business\nentity, or as an investor in, or\n7\nbeneficial owner of 1% or more of any security of any class of any corporation, or 1% or more of any equity interest of any\nunincorporated enterprise.\nB.\nNotwithstanding the strict prohibitions in paragraph 7A above, Bobak may submit a request for approval in writing to\nthe Anheuser-Busch Companies, Inc. Vice President, Corporate Human Resources, if he wishes to provide services of any kind\ndescribed in paragraph 7A above. Such written request will be considered by Anheuser-Busch which shall determine, in its sole\ndiscretion, whether such request should be granted.\nC.\nBobak further agrees that he shall not solicit, recruit, or otherwise make contact with or respond to any contact from any\nemployee of Anheuser-Busch, anywhere in the world, for the purpose of engaging or hiring or obtaining, directly or indirectly, the\nemployee’s services by or for another partnership, firm, company or organization.\n8.\nEnforceability and Choice of Law\nA.\nBobak and Anheuser-Busch agree that in the event either party breaches any provision of this Agreement, the sole\nremedy of the other party is the enforcement of the terms of this Agreement.\nB.\nBobak agrees that if he violates any provision of paragraph 6 or 7, or in the event that an arbitrator or court of\ncompetent jurisdiction rules that the restrictive covenants in paragraph 7 are not enforceable (either circumstance will be referred to in\nthis paragraph as an “Event”), he shall forfeit, as of the date of the Event, all remaining consulting payments described in paragraph\n2A, eligibility for Health Benefits described in paragraph 2E, any unpaid bonus described in paragraph 2G, any unexercised stock\noption grants and unvested restricted stock grants described in paragraph 2H, the discretionary incentive payments described in\nparagraph 2I and any remaining payments described in the last two sentences of paragraph 3B. In the event that Anheuser-Busch\nbelieves that Bobak is in violation of paragraph 6 or 7 of this Agreement, Anheuser-Busch shall give Bobak written notice of such\nviolation, and Bobak shall be provided with a reasonable opportunity to cure such violation, discontinue such conduct, or present\ndocumented evidence establishing that the activity\n8\nor employment does not constitute a violation of this Agreement, prior to Anheuser-Busch availing itself of its remedies under this\nparagraph 8. Anheuser-Busch will have the right, at any time, to request that Bobak certify that he is in compliance with paragraphs 6\nand 7, and Bobak’s failure to certify compliance as requested will be deemed to be an Event as defined in this paragraph 8, a material\nviolation, and a material breach of this Agreement. Bobak understands and agrees that any breach of the provisions of paragraphs 6\nor 7 of this Agreement shall constitute a material breach of this Agreement and that Anheuser-Busch, in addition to its right to\nterminate the Agreement, shall be entitled to injunctive and other equitable relief to prevent the threatened or continued breach of this\nAgreement.\nC.\nExcept as otherwise provided in subparagraph 8B above, should Bobak challenge any provision of this Agreement\nand such provision be declared illegal or unenforceable by any arbitrator or court of competent jurisdiction and cannot be modified to\nbe enforceable, such provision will immediately become void, leaving the remainder of this Agreement in effect. However, if any\nportion of the general release (paragraph 5) is ruled to be unenforceable as a result of such challenge, Bobak agrees that Anheuser-\nBusch will be entitled to a set-off against any subsequent judgment or award made to Bobak in the amount of all compensation paid to\nhim by Anheuser-Busch under this Agreement.\nD.\nThe parties have read and fully considered the Agreement and mutually desire to enter into this Agreement. The\nterms of this Agreement are the product of mutual negotiation and compromise between Bobak and Anheuser-Busch. Having elected\nto execute this Agreement, to fulfill the promises and receive the benefits set forth herein, Bobak freely and knowingly, and after due\nconsideration, enters into this Agreement intending to waive, settle, and release all claims he has against Anheuser-Busch as the\neffective date of this Agreement.\nE.\nIt is the parties’ intent and expectation that the insured medical, dental, vision and prescription drug benefits (“Exempt\nBenefits”) provided to Bobak under the terms of this Agreement are exempt from the application of Internal Revenue Code Section\n409A (“Section 409A”) and all regulations and other guidance issued thereunder. In the event that new regulations, interpretations or\nother legal guidance\n9\nchange that assessment, the parties intend that appropriate adjustments will be made to cause the Exempt Benefits to be exempt or, if\nthat is not possible, to cause the Exempt Benefits to comply with Section 409A. It is also the parties’ intent and expectation that all\nforms of compensation provided by this Agreement that are subject to the application of Section 409A (“Nonexempt Benefits”) will fully\ncomply with Section 409A, and in the event that new regulations, interpretations or other legal guidance change that assessment, the\nparties intend that appropriate adjustments will be made to cause the Nonexempt Benefits to comply with Section 409A.\n9.\nMiscellaneous\nA.\nThis Agreement constitutes a Summary of Material Modifications (SMM) that supplements the Eligibility and\nAdministrative Rules Booklet summary plan description previously distributed to Bobak. As an SMM, this Agreement provides Bobak\nwith information about the Group Insurance Plan for Certain Employees of Anheuser-Busch Companies, Inc. and its Subsidiaries that\nis in addition to that contained in Bobak’s Eligibility and Administrative Rules Booklet summary plan description and prior SMMs.\nB.\nBobak acknowledges that he has been advised by Anheuser-Busch that there may be substantial federal and state\nincome tax consequences for Bobak as a result of entering into this Agreement, and that he should seek professional tax and legal\nadvice before doing so. Bobak further acknowledges that he has not been provided with any advice on the tax effects of this\nAgreement by Anheuser-Busch or any of its employees or agents.\nC.\nAnheuser-Busch and Bobak agree that all disputes between the parties relating to or arising out of: (a) this\nAgreement; (b) Bobak’s employment with Anheuser-Busch; and/or (c) the cessation of Bobak’s employment with Anheuser-Busch\nmust be resolved through the Anheuser-Busch Dispute Resolution Program, which includes final and binding arbitration of covered\nclaims. Bobak acknowledges that he has previously signed a “Mutual Agreement to Arbitrate Claims,” the terms of which are\nincorporated into this Agreement by this reference and remain binding on the parties. An executed copy of the Mutual Agreement to\nArbitrate Claims is attached hereto. Notwithstanding\n10\nanything to the contrary contained herein, Anheuser-Busch shall be entitled to seek enforcement of the provisions of paragraphs 6 and\n7 in a court of competent jurisdiction.\n10.\nNotices\nUnless otherwise provided, all notices, requests, consents and other communications required or permitted under this\nAgreement must be in writing and must be hand-delivered or mailed, addressed as follows, or to such other address as may be\nprovided by the respective parties to this Agreement:\nIf to Anheuser-Busch:\nAnheuser-Busch Companies, Inc.\nOne Busch Place\nSt. Louis, MO 63118\nAttn.: Vice President, Corporate Human Resources\nIf to Mr. Bobak:\nMr. Mark T. Bobak\nAt his address on record with Anheuser-Busch\n11.\nThe validity of this Agreement shall be governed by and construed according to the law of the State of Missouri. This\nAgreement and the exhibits thereto constitute the entire and exclusive agreement between Bobak and Anheuser-Busch with respect to\nBobak’s employment status and any rights and duties owed by Anheuser-Busch to Bobak and, except as otherwise provided in this\nAgreement, it supersedes all previous or contemporaneous negotiations, commitments, agreements, statements, representations, or\npromises, oral or written. This Agreement may not be modified except in a writing signed by both parties.\n12.\nBOBAK STATES THAT HE HAS CAREFULLY READ THIS “CONSULTING AND NON-DISCLOSURE AGREEMENT AND\nGENERAL RELEASE,” THAT HE KNOWS AND UNDERSTANDS ITS CONTENTS AND THAT HE IS ENTERING INTO THIS\nAGREEMENT AS HIS OWN FREE ACT AND DEED. BOBAK FURTHER REPRESENTS AND AGREES THAT:\n·\nHE HAS BEEN ADVISED BY ANHEUSER-BUSCH TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS\nAGREEMENT;\n11\n·\nHE FULLY UNDERSTANDS THAT HIS EXECUTION OF THIS AGREEMENT CONSTITUTES A FULL AND FINAL\nRELEASE OF ALL CLAIMS HE MAY HAVE AGAINST ANHEUSER-BUSCH AS OF THE EFFECTIVE DATE OF THE\nAGREEMENT WITH FINAL AND BINDING EFFECT;\n·\nHE HAS BEEN GIVEN AT LEAST 21 DAYS TO CONSIDER THIS AGREEMENT;\n·\nFOR A PERIOD OF 7 DAYS FROM THE DATE HE SIGNS THIS AGREEMENT, BOBAK MAY REVOKE THIS\nAGREEMENT BY NOTIFYING ANHEUSER-BUSCH IN WRITING OF HIS INTENT TO DO SO; AND\n·\nTHIS AGREEMENT WILL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS\nEXPIRED.\nTHIS AGREEMENT IS SUBJECT TO A BINDING ARBITRATION AGREEMENT, WHICH MAY BE ENFORCED BY THE PARTIES.\nThe parties to this Consulting and Non-Disclosure Agreement and General Release now voluntarily and knowingly execute this\nAgreement.\nANHEUSER-BUSCH COMPANIES, INC.,\nBy: /s/ John T. Farrell\nDate: 12/10/07\nVice President, Corporate Human Resources\n/s/ Mark T. Bobak\nDate: 12/10/07\nMARK T. BOBAK\n12	EX-10.30 8 ex10p30.htm\nExhibit 10.30\nCONSULTING AND NON-DISCLOSURE AGREEMENT\nAND GENERAL RELEASE\nANHEUSER-BUSCH COMPANIES, INC., a Delaware corporation with its principal offices at One Busch Place, St. Louis,\nMissouri, 63118, its affiliates, subsidiaries, divisions, successors and assigns, and their directors, officers, employees and agents, both\nin their official and individual capacities (all of whom are collectively referred to throughout this Consulting and Non-Disclosure\nAgreement and General Release as “Anheuser-Busch”), and MARK T. BOBAK (“Bobak”), residing in St. Louis, Missouri, mutually\ndesire to enter into this Consulting and Non-Disclosure Agreement and General Release (“Agreement”) and agree as follows:\n1. Termination of Employment\nBobak agrees to terminate employment with Anheuser-Busch on December 31, 2007, (“Termination Date”) in order to allow him\nto return to the private practice of law.\n2. Consulting_ Payments\nAnheuser-Busch agrees that during the period from the Termination Date through December 31, 2012 (the “Consulting\nPeriod”), so long as Bobak fulfills any assigned duties and complies with all Anheuser-Busch policies and the provisions of this\nAgreement:\nA. Bobak will be paid a consulting fee of $52,884 per month. All consulting payments shall be payable in semi-monthly\ninstallments on the 15" and last day of each month, less applicable withholding. In the event that Bobak dies prior to December 31,\n2012, Anheuser-Busch agrees to pay any remaining consulting payments due under this Agreement to Bobak’s spouse unless\notherwise directed in writing by Bobak.\nB. Bobak agrees to devote the time necessary to complete any projects assigned to him by the Chief Executive Officer or\nhis designee. Anheuser-Busch will provide reasonable advance notice to Bobak of any work assignments, and will take into\nconsideration Bobak’s other commitments. Bobak also agrees that he will fully\ncooperate with any request made by Anheuser-Busch relating to or arising out of corporate transactions, labor relations, government\naffairs, litigation or any other matter that Bobak worked on, learned of, or became familiar with during his employment with Anheuser-\nBusch. Bobak will work from his personal residence or office and will not be provided with a company office or reserved parking\nspot. Bobak may retain his Blackberry/cell phone, computer, home fax machine, and company e-mail address for purposes of\nperforming services contemplated by this Agreement. Such items will be returned upon request by Anheuser-Busch. Subject to the\nprovisions of this Agreement and provided there is no interference with Bobak’s efforts as requested by Anheuser-Busch, Bobak may\nprovide services to other employers at any time after the Termination Date. Bobak agrees to provide to the Chief Executive Officer a\nreport of all projects and assignments that he is working on for Anheuser-Busch on a quarterly basis.\nC. Anheuser-Busch will reimburse Bobak, pursuant to company expense reimbursement guidelines, for all ordinary,\nnecessary and reasonable business expenses incurred by Bobak while conducting assignments for Anheuser-Busch at the direction of\nthe Chief Executive Officer or his designee.\nD. Except as otherwise provided in this Agreement, Bobak agrees to return all Anheuser-Busch property (including, but\nnot limited to, company documents and records, whether in electronic or paper format, and all copies thereof, computers, cell phones,\nblackberries, fax machines, pagers, security badge and credit cards) on or before the Termination Date.\nE. Anheuser-Busch will continue to provide Bobak and his eligible dependents with health care benefits as described\nherein (“Health Benefits”). Until Bobak reaches the age of 58, he and his eligible dependents will continue to participate in the Group\nInsurance Plan for Certain Employees of Anheuser-Busch Companies, Inc. and its Subsidiaries (“Group Insurance Plan”), except that\nhis benefits under the Group Insurance Plan will be limited to insured medical, dental, vision and prescription drug benefits (“Health\nBenefits”) that are materially similar to the health benefits provided from time to time to Anheuser-Busch full-time salaried employees,\nand subject to the same benefit limits, co-payments, premium payments and deductibles. Upon Bobak\n2\nreaching age 58, he and his eligible dependents will participate in the Group Insurance Plan for Certain Retirees of Anheuser-Busch\n(Retiree Insurance Plan), except that the Health Benefits will be limited to those that are materially similar to the health benefits\nprovided from time to time to Anheuser-Busch retirees and subject to the same benefits limits, co-payments, premium payments and\ndeductibles. The selection of insurance carriers to provide the Health Benefits shall be in the sole discretion of Anheuser-Busch\nCompanies, Inc. The Health Benefits provided to Bobak during the Consulting Period shall, for purposes of coordination of benefits, be\nsecondary to any subsequent benefit coverage(s) for which Bobak, his spouse and eligible dependents become eligible as a result of\nBobak becoming an employee for any other employer. Bobak agrees that in the event he obtains new employment during the\nConsulting Period, he shall notify the Anheuser-Busch Companies, Inc. Vice President, Corporate Human Resources, in writing within\n30 days after he first becomes eligible for any health benefit coverage through any subsequent employer(s) and will provide Anheuser-\nBusch with a copy of the summary plan descriptions for such coverage(s).\nF. Except as otherwise specifically provided herein, during the Consulting Period Bobak will not be eligible for any\nbenefits from Anheuser-Busch Companies, Inc., or any of its subsidiaries, including, but not limited to, the following:\ni) long-term disability insurance coverage;\ni)  short-term disability coverage;\niiiy  life insurance or retiree life insurance;\niv)  paid sick days;\nv)  health care and/or dependent care spending account benefits;\nvi)  legal assistance benefits;\nvii)  country club membership;\nviii)  monthly beer tickets and/or other complimentary beer; and\nix)  access to, or use of, the executive dining room, fitness center or barber shop.\nG. Subject to review by the Compensation Committee of the audited financial statements and its certification that the\nperformance goal set forth in the 2007 Officer\n3\nBonus Program has been met, Bobak shall receive a bonus for 2007 in the amount of $600,000 no later than March 1, 2008.\nH. Notwithstanding Bobak’s termination of employment, unvested stock option grants made to Bobak in 2005, 2006, and\n2007 shall not terminate and shall vest and become exercisable in accordance with their original schedule; vested stock option grants\nmade to Bobak prior to 2005 shall not terminate and shall remain exercisable for a period of five years following termination of\nemployment (or, if shorter, for their stated terms); vested stock option grants made to Bobak in 2005 and afterwards shall not terminate\nand shall remain exercisable for their stated terms; and restricted stock grants made to Bobak shall not terminate and shall vest in\naccordance with their original terms, but only to the extent that the performance goals related to such grants are achieved. All such\ngrants shall otherwise remain subject to the terms of the applicable plans and agreements under which they were granted.\nl. Bobak shall be eligible for incentive payments for 2008 and 2009 based on the successful completion of certain key\ninitiatives and the attainment of certain key objectives in the Legal and Industry and Government Affairs Departments, as determined\nby the Chief Executive Officer of Anheuser-Busch in his sole discretion.\n3. Separation Benefits\nA. Bobak agrees that upon his Termination Date, he will not be entitled to any severance benefits or any retiree life\ninsurance benefits under any benefit plan of Anheuser-Busch Companies, Inc., or any of its subsidiaries.\nB. After his Termination Date, Bobak will be entitled to elect distribution of his benefits from the Anheuser-Busch Salaried\nEmployees’ Pension Plan (“SEPP”) and the Anheuser-Busch Deferred Income Stock Purchase and Savings Plan (“401(k) Plan”)\npursuant to the terms of those plans. Bobak understands that processing of benefits from the SEPP or the 401(k) Plan will not begin\nuntil he notifies the SEPP or 401(k) Plan Administrator in writing that he wants to receive a distribution of benefits from the respective\nplan. Bobak shall become vested in his accrued benefit under the Anheuser-Busch Supplemental Executive Retirement Plan (“SERP”)\non the Termination Date, and shall receive his distribution under the SERP as a lump sum payment in the amount of\n4\n$1,304,118 on or about the first regularly scheduled business day after January 1, 2013. Bobak will also receive a lump sum payment\nof $1,095,882 on or about the first regularly scheduled business day after January 1, 2013 as payment of additional pension benefits\nhe would have accrued had he remained employed throughout the Consulting Period.\n4. No Admission of Liability\nBobak acknowledges and agrees that he would not receive all the payments and benefits specified in this Agreement except\nfor his execution of this Agreement and his fulfillment of its terms. Neither the making of this Agreement, nor anything contained in it,\nshall in any way be construed or considered to be an admission by Anheuser-Busch of noncompliance with any law or of any other\nwrongdoing.\n5. Release of Liability\nA. Except for any violation of the terms of this Agreement by Anheuser-Busch, Bobak, of his own free will, voluntarily\nreleases and forever discharges Anheuser-Busch from all actions, causes of action, claims, debts, charges, complaints, contracts\n(whether oral or written, express or implied from any source) and promises of any kind, in law or equity, whether known or unknown,\nwhich Bobak, his heirs, executors, administrators, successors and assigns (referred to collectively throughout this Agreement as\n“Bobak”) may have from all time in the past to the effective date of this Agreement, including, but not limited to, all matters or claims\nrelating to or arising out of Bobak’s employment by Anheuser-Busch and the cessation of his employment and including, but not limited\nto, any violation of:\n \n(1) Title VIl of the Civil Rights Act, as amended,;\n(2) Sections 1981 through 1988 of Title 42 of the United States Code;\n(3) the Employee Retirement Income Security Act, as amended;\n(4) the Health Insurance Portability and Accountability Act;\n(5) the Family and Medical Leave Act;\n(6) the Age Discrimination in Employment Act, as amended,;\n(7) the Americans with Disabilities Act;\n(8) the Missouri Human Rights Act;\n(9) the Sarbanes-Oxley Act of 2002;\n(10) any other local, state or federal law, regulation or ordinance and/or public policy, contract, tort or common law\nhaving any bearing on the terms and conditions and/or cessation of his employment with Anheuser-Busch.\nExcept as otherwise provided in this Agreement, this release shall not apply to any claim for benefits that may be due to Bobak\nor his eligible dependents under any Anheuser-Busch employee benefit plan in which Bobak or his eligible dependents are or were\nparticipants.\nB. Bobak warrants that he has not caused or permitted to be filed on his behalf any charge, complaint, or action before any\nfederal, state or local administrative agency or court against Anheuser-Busch. In the event that any such claim is asserted in the future,\nBobak agrees that this Agreement will act as a complete bar to his re-employment or to his recovery of any amount from Anheuser-\nBusch resulting, directly or indirectly, from any lawsuit, remedy, charge or complaint whether brought privately by him or by anyone\nelse, including any federal, state or local agency, whether or not on his behalf or at his request.\n6. Confidentiality\nA. As a result of his employment with Anheuser-Busch, Bobak has gained valuable confidential information and trade\nsecrets relevant to Anheuser-Busch’s business operat|0ns including its information technology. In light of the highly compet|t|ve nature\nof the industry in which Anheuser-Busch’s business is conducted, Bobak understands and agrees that he will keep in strict secrecy\nand confidence, and is specifically prohibited from disclosing, any and all unique, confidential and/or proprietary information and\nmaterial belonging or relating to Anheuser-Busch that is not a matter of common knowledge or otherwise generally available to the\npublic including, but not limited to, business, financial, trade, sales, technical or technological information, or corporate sales and\nmarketing strategies, to any entity that competes with Anheuser-Busch. In addition, Bobak agrees that he will not use any such\nconfidential information,\n6\nmaterials or trade secrets for the benefit of any of Anheuser-Busch’'s competitors and/or against the best interests of Anheuser-Busch.\nB. Bobak agrees that he will make no public statements and take no public action that disparages or is detrimental to\nAnheuser-Busch (including without limitation, its directors, officers and employees), or would otherwise cause or contribute to\nAnheuser-Busch being held in disrepute by the general public, customers or employees. Anheuser-Busch Companies, Inc. (including,\nwithout limitation, its directors and officers) agrees that it will take no official public action that is intended to disparage or be\ndetrimental to Bobak. Anheuser-Busch also agrees to provide a mutually agreed-upon letter of reference to Bobak, and to provide a\ncopy of such letter in response to any inquiry to the office of the Anheuser-Busch Companies, Inc. Vice President, Corporate Human\nResources, from a prospective employer regarding Bobak's employment by Anheuser-Busch.\nC. Bobak agrees that he has obligations under the Missouri Rules of Professional Conduct, that those obligations will\nsurvive the termination of his employment, and that nothing herein shall be deemed to abridge, impair or waive such obligations.\n7. Restrictive Covenants\nA. Except as specifically provided in subparagraph 7B below, or as otherwise agreed to in writing by Anheuser-Busch,\nand upon such terms and conditions as Anheuser-Busch may impose, from the date of the Agreement until December 31, 2012,\nBobak shall not, anywhere in the world, engage, directly or indirectly, in any activity for, or on behalf of, any business or organization\nthat manufactures, sells or distributes alcohol beverages and/or no-alcohol malt beverages, that promotes or encourages any\nrestrictions on, or regulation of, the use, distribution or marketing of alcohol beverages, or that otherwise competes with any current\nbusiness activity of Anheuser-Busch, either alone, as a member of a partnership or association, as an officer, director, employee,\nconsultant, lobbyist or representative of or to any corporation, industry trade association, not-for-profit organization, or other business\nentity, or as an investor in, or\n7\nbeneficial owner of 1% or more of any security of any class of any corporation, or 1% or more of any equity interest of any\nunincorporated enterprise.\nB. Notwithstanding the strict prohibitions in paragraph 7A above, Bobak may submit a request for approval in writing to\nthe Anheuser-Busch Companies, Inc. Vice President, Corporate Human Resources, if he wishes to provide services of any kind\ndescribed in paragraph 7A above. Such written request will be considered by Anheuser-Busch which shall determine, in its sole\ndiscretion, whether such request should be granted.\nC. Bobak further agrees that he shall not solicit, recruit, or otherwise make contact with or respond to any contact from any\nemployee of Anheuser-Busch, anywhere in the world, for the purpose of engaging or hiring or obtaining, directly or indirectly, the\nemployee’s services by or for another partnership, firm, company or organization.\n8. Enforceability and Choice of Law\nA. Bobak and Anheuser-Busch agree that in the event either party breaches any provision of this Agreement, the sole\nremedy of the other party is the enforcement of the terms of this Agreement.\nB. Bobak agrees that if he violates any provision of paragraph 6 or 7, or in the event that an arbitrator or court of\ncompetent jurisdiction rules that the restrictive covenants in paragraph 7 are not enforceable (either circumstance will be referred to in\nthis paragraph as an “Event”), he shall forfeit, as of the date of the Event, all remaining consulting payments described in paragraph\n2A, eligibility for Health Benefits described in paragraph 2E, any unpaid bonus described in paragraph 2G, any unexercised stock\noption grants and unvested restricted stock grants described in paragraph 2H, the discretionary incentive payments described in\nparagraph 21 and any remaining payments described in the last two sentences of paragraph 3B. In the event that Anheuser-Busch\nbelieves that Bobak is in violation of paragraph 6 or 7 of this Agreement, Anheuser-Busch shall give Bobak written notice of such\nviolation, and Bobak shall be provided with a reasonable opportunity to cure such violation, discontinue such conduct, or present\ndocumented evidence establishing that the activity\n8\nor employment does not constitute a violation of this Agreement, prior to Anheuser-Busch availing itself of its remedies under this\nparagraph 8. Anheuser-Busch will have the right, at any time, to request that Bobak certify that he is in compliance with paragraphs 6\nand 7, and Bobak’s failure to certify compliance as requested will be deemed to be an Event as defined in this paragraph 8, a material\nviolation, and a material breach of this Agreement. Bobak understands and agrees that any breach of the provisions of paragraphs 6\nor 7 of this Agreement shall constitute a material breach of this Agreement and that Anheuser-Busch, in addition to its right to\nterminate the Agreement, shall be entitled to injunctive and other equitable relief to prevent the threatened or continued breach of this\nAgreement.\nC. Except as otherwise provided in subparagraph 8B above, should Bobak challenge any provision of this Agreement\nand such provision be declared illegal or unenforceable by any arbitrator or court of competent jurisdiction and cannot be modified to\nbe enforceable, such provision will immediately become void, leaving the remainder of this Agreement in effect. However, if any\nportion of the general release (paragraph 5) is ruled to be unenforceable as a result of such challenge, Bobak agrees that Anheuser-\nBusch will be entitled to a set-off against any subsequent judgment or award made to Bobak in the amount of all compensation paid to\nhim by Anheuser-Busch under this Agreement.\nD. The parties have read and fully considered the Agreement and mutually desire to enter into this Agreement. The\nterms of this Agreement are the product of mutual negotiation and compromise between Bobak and Anheuser-Busch. Having elected\nto execute this Agreement, to fulfill the promises and receive the benefits set forth herein, Bobak freely and knowingly, and after due\nconsideration, enters into this Agreement intending to waive, settle, and release all claims he has against Anheuser-Busch as the\neffective date of this Agreement.\nE. It is the parties’ intent and expectation that the insured medical, dental, vision and prescription drug benefits (“Exempt\nBenefits”) provided to Bobak under the terms of this Agreement are exempt from the application of Internal Revenue Code Section\n409A (“Section 409A") and all regulations and other guidance issued thereunder. In the event that new regulations, interpretations or\nother legal guidance\n9\nchange that assessment, the parties intend that appropriate adjustments will be made to cause the Exempt Benefits to be exempt or, if\nthat is not possible, to cause the Exempt Benefits to comply with Section 409A. It is also the parties’ intent and expectation that all\nforms of compensation provided by this Agreement that are subject to the application of Section 409A (“Nonexempt Benefits”) will fully\ncomply with Section 409A, and in the event that new regulations, interpretations or other legal guidance change that assessment, the\nparties intend that appropriate adjustments will be made to cause the Nonexempt Benefits to comply with Section 409A.\n9. Miscellaneous\nA. This Agreement constitutes a Summary of Material Modifications (SMM) that supplements the Eligibility and\nAdministrative Rules Booklet summary plan description previously distributed to Bobak. As an SMM, this Agreement provides Bobak\nwith information about the Group Insurance Plan for Certain Employees of Anheuser-Busch Companies, Inc. and its Subsidiaries that\nis in addition to that contained in Bobak’s Eligibility and Administrative Rules Booklet summary plan description and prior SMMs.\nB. Bobak acknowledges that he has been advised by Anheuser-Busch that there may be substantial federal and state\nincome tax consequences for Bobak as a result of entering into this Agreement, and that he should seek professional tax and legal\nadvice before doing so. Bobak further acknowledges that he has not been provided with any advice on the tax effects of this\nAgreement by Anheuser-Busch or any of its employees or agents.\nC. Anheuser-Busch and Bobak agree that all disputes between the parties relating to or arising out of: (a) this\nAgreement; (b) Bobak's employment with Anheuser-Busch; and/or (c) the cessation of Bobak's employment with Anheuser-Busch\nmust be resolved through the Anheuser-Busch Dispute Resolution Program, which includes final and binding arbitration of covered\nclaims. Bobak acknowledges that he has previously signed a “Mutual Agreement to Arbitrate Claims,” the terms of which are\nincorporated into this Agreement by this reference and remain binding on the parties. An executed copy of the Mutual Agreement to\nArbitrate Claims is attached hereto. Notwithstanding\n10\nanything to the contrary contained herein, Anheuser-Busch shall be entitled to seek enforcement of the provisions of paragraphs 6 and\n7 in a court of competent jurisdiction.\n10. Notices\nUnless otherwise provided, all notices, requests, consents and other communications required or permitted under this\nAgreement must be in writing and must be hand-delivered or mailed, addressed as follows, or to such other address as may be\nprovided by the respective parties to this Agreement:\nIf to Anheuser-Busch:\nAnheuser-Busch Companies, Inc.\nOne Busch Place\nSt. Louis, MO 63118\nAttn.: Vice President, Corporate Human Resources\nIf to Mr. Bobak:\nMr. Mark T. Bobak\nAt his address on record with Anheuser-Busch\n11. The validity of this Agreement shall be governed by and construed according to the law of the State of Missouri. This\nAgreement and the exhibits thereto constitute the entire and exclusive agreement between Bobak and Anheuser-Busch with respect to\nBobak’s employment status and any rights and duties owed by Anheuser-Busch to Bobak and, except as otherwise provided in this\nAgreement, it supersedes all previous or contemporaneous negotiations, commitments, agreements, statements, representations, or\npromises, oral or written. This Agreement may not be modified except in a writing signed by both parties.\n12. BOBAK STATES THAT HE HAS CAREFULLY READ THIS “CONSULTING AND NON-DISCLOSURE AGREEMENT AND\nGENERAL RELEASE,” THAT HE KNOWS AND UNDERSTANDS ITS CONTENTS AND THAT HE IS ENTERING INTO THIS\nAGREEMENT AS HIS OWN FREE ACT AND DEED. BOBAK FURTHER REPRESENTS AND AGREES THAT:\nHE HAS BEEN ADVISED BY ANHEUSER-BUSCH TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS\nAGREEMENT;\n11\nHE FULLY UNDERSTANDS THAT HIS EXECUTION OF THIS AGREEMENT CONSTITUTES A FULL AND FINAL\nRELEASE OF ALL CLAIMS HE MAY HAVE AGAINST ANHEUSER-BUSCH AS OF THE EFFECTIVE DATE OF THE\nAGREEMENT WITH FINAL AND BINDING EFFECT;\nHE HAS BEEN GIVEN AT LEAST 21 DAYS TO CONSIDER THIS AGREEMENT;\nFOR A PERIOD OF 7 DAYS FROM THE DATE HE SIGNS THIS AGREEMENT, BOBAK MAY REVOKE THIS\nAGREEMENT BY NOTIFYING ANHEUSER-BUSCH IN WRITING OF HIS INTENT TO DO SO; AND\nTHIS AGREEMENT WILL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS\nEXPIRED.\nTHIS AGREEMENT IS SUBJECT TO A BINDING ARBITRATION AGREEMENT, WHICH MAY BE ENFORCED BY THE PARTIES.\nThe parties to this Consulting and Non-Disclosure Agreement and General Release now voluntarily and knowingly execute this\nAgreement.\nANHEUSER-BUSCH COMPANIES, INC.,\nBy: _/s/ John T. Farrell Date: __12/10/07\nVice President, Corporate Human Resources\n/s/ Mark T. Bobak Date: _ 12/10/07\nMARK T. BOBAK\n12	EX-10.30 ex10p30.htm\nExhibit 10.30\nCONSULTING AND NON-DISCLOSURE AGREEMENT\nAND GENERAL RELEASE\nANHEUSER-BUSCH COMPANIES, INC., a Delaware corporation with its principal offices at One Busch Place, St. Louis,\nMissouri, 63118, its affiliates, subsidiaries, divisions, successors and assigns, and their directors, officers, employees and agents, both\nin\ntheir official and individual capacities (all of whom are collectively referred to throughout this Consulting and Non-Disclosure\nAgreement and General Release as "Anheuser-Busch"), and MARK T. BOBAK ("Bobak"), residing in St. Louis, Missouri, mutually\ndesire to enter into this Consulting and Non-Disclosure Agreement and General Release ("Agreement") and agree as follows:\n1.\nTermination of Employment\nBobak agrees to terminate employment with Anheuser-Busch on December 31, 2007, ("Termination Date") in order to allow him\nto return to the private practice of law.\n2.\nConsulting Payments\nAnheuser-Busch agrees that during the period from the Termination Date through December 31, 2012 (the "Consulting\nPeriod"), SO long as Bobak fulfills any assigned duties and complies with all Anheuser-Busch policies and the provisions of this\nAgreement:\nA.\nBobak will be paid a consulting fee of $52,884 per month. All consulting payments shall be payable in semi-monthly\ninstallments on the 15th and last day of each month, less applicable withholding. In the event that Bobak dies prior to December 31,\n2012, Anheuser-Busch agrees to pay any remaining consulting payments due under this Agreement to Bobak's spouse unless\notherwise directed in writing by Bobak.\nB.\nBobak agrees to devote the time necessary to complete any projects assigned to him by the Chief Executive Officer or\nhis designee. Anheuser-Busch will provide reasonable advance notice to Bobak of any work assignments, and will take into\nconsideration Bobak's other commitments. Bobak also agrees that he will fully\ncooperate with any request made by Anheuser-Busch relating to or arising out of corporate transactions, labor relations, government\naffairs, litigation or any other matter that Bobak worked on, learned of, or became familiar with during his employment with Anheuser-\nBusch. Bobak will work from his personal residence or office and will not be provided with a company office or reserved parking\nspot. Bobak may retain his Blackberry/cell phone, computer, home fax machine, and company e-mail address for purposes of\nperforming services contemplated by this Agreement. Such items will be returned upon request by Anheuser-Busch. Subject to the\nprovisions of this Agreement and provided there is no interference with Bobak's efforts as requested by Anheuser-Busch Bobak may\nprovide services to other employers at any time after the Termination Date. Bobak agrees to provide to the Chief Executive Officer\na\nreport of all projects and assignments that he is working on for Anheuser-Busch on a quarterly basis.\nC.\nAnheuser-Busch will reimburse Bobak, pursuant to company expense reimbursement guidelines, for all\nordinary,\nnecessary and reasonable business expenses incurred by Bobak while conducting assignments for Anheuser-Busch at the direction of\nthe Chief Executive Officer or his designee.\nD.\nExcept as otherwise provided in this Agreement, Bobak agrees to return all Anheuser-Busch property (including, but\nnot limited to, company documents and records, whether in electronic or paper format, and all copies thereof, computers, cell phones,\nblackberries, fax machines, pagers, security badge and credit cards) on or before the Termination Date.\nE.\nAnheuser-Busch will continue to provide Bobak and his eligible dependents with health care benefits as described\nherein ("Health Benefits"). Until Bobak reaches the age of 58, he and his eligible dependents will continue to participate in the Group\nInsurance Plan for Certain Employees of Anheuser-Busch Companies, Inc. and its Subsidiaries ("Group Insurance Plan"), except that\nhis benefits under the Group Insurance Plan will be limited to insured medical, dental, vision and prescription drug benefits ("Health\nBenefits") that are materially similar to the health benefits provided from time to time to Anheuser-Busch full-time salaried employees,\nand subject to the same benefit limits, co-payments, premium payments and deductibles. Upon Bobak\n2\nreaching age 58, he and his eligible dependents will participate in the Group Insurance Plan for Certain Retirees of Anheuser-Busch\n(Retiree Insurance Plan), except that the Health Benefits will be limited to those that are materially similar to the health benefits\nprovided from time to time to Anheuser-Busch retirees and subject to the same benefits limits, co-payments, premium payments and\ndeductibles. The selection of insurance carriers to provide the Health Benefits shall be in the sole discretion of Anheuser-Busch\nCompanies, Inc. The Health Benefits provided to Bobak during the Consulting Period shall, for purposes of coordination of benefits, be\nsecondary to any subsequent benefit coverage(s) for which Bobak, his spouse and eligible dependents become eligible as a result of\nBobak becoming an employee for any other employer. Bobak agrees that in the event he obtains new employment during the\nConsulting Period, he shall notify the Anheuser-Busch Companies, Inc. Vice President, Corporate Human Resources, in writing within\n30 days after he first becomes eligible for any health benefit coverage through any subsequent employer(s) and will provide Anheuser-\nBusch with a copy of the summary plan descriptions for such coverage(s).\nF.\nExcept as otherwise specifically provided herein, during the Consulting Period Bobak will not be eligible for any\nbenefits from Anheuser-Busch Companies, Inc., or any of its subsidiaries, including, but not limited to, the following:\ni)\nlong-term disability insurance coverage;\nii)\nshort-term disability coverage;\niii)\nlife insurance or retiree life insurance;\niv)\npaid sick days;\nV)\nhealth care and/or dependent care spending account benefits;\nvi)\nlegal assistance benefits;\nvii)\ncountry club membership;\nviii)\nmonthly beer tickets and/or other complimentary beer; and\nix)\naccess to, or use of, the executive dining room, fitness center or barber shop.\nG.\nSubject to review by the Compensation Committee of the audited financial statements and its certification that the\nperformance goal set forth in the 2007 Officer\n3\nBonus Program has been met, Bobak shall receive a bonus for 2007 in the amount of $600,000 no later than March 1, 2008.\nH.\nNotwithstanding Bobak's termination of employment, unvested stock option grants made to Bobak in 2005, 2006, and\n2007 shall not terminate and shall vest and become exercisable in accordance with their original schedule; vested stock option grants\nmade to Bobak prior to 2005 shall not terminate and shall remain exercisable for a period of five years following termination of\nemployment (or, if shorter, for their stated terms); vested stock option grants made to Bobak in 2005 and afterwards shall not terminate\nand shall remain exercisable for their stated terms; and restricted stock grants made to Bobak shall not terminate and shall vest\nin\naccordance with their original terms, but only to the extent that the performance goals related to such grants are achieved. All such\ngrants shall otherwise remain subject to the terms of the applicable plans and agreements under which they were granted.\nI.\nBobak shall be eligible for incentive payments for 2008 and 2009 based on the successful completion of certain key\ninitiatives and the attainment of certain key objectives in the Legal and Industry and Government Affairs Departments, as determined\nby the Chief Executive Officer of Anheuser-Busch in his sole discretion.\n3.\nSeparation Benefits\nA.\nBobak agrees that upon his Termination Date, he will not be entitled to any severance benefits or any retiree life\ninsurance benefits under any benefit plan of Anheuser-Busch Companies, Inc., or any of its subsidiaries.\nB.\nAfter his Termination Date, Bobak will be entitled to elect distribution of his benefits from the Anheuser-Busch Salaried\nEmployees' Pension Plan ("SEPP") and the Anheuser-Busch Deferred Income Stock Purchase and Savings Plan ("401(k) Plan")\npursuant\nto\nthe terms of those plans. Bobak understands that processing of benefits from the SEPP or the 401(k) Plan will not begin\nuntil he notifies the SEPP or 401(k) Plan Administrator in writing that he wants to receive a distribution of benefits from the respective\nplan. Bobak shall become vested in his accrued benefit under the Anheuser-Busch Supplemental Executive Retirement Plan ("SERP")\non the Termination Date, and shall receive his distribution under the SERP as a lump sum payment in the amount of\n4\n$1,304,118 on or about the first regularly scheduled business day after January 1, 2013. Bobak will also receive a lump sum payment\nof $1,095,882 on or about the first regularly scheduled business day after January 1, 2013 as payment of additional pension benefits\nhe would have accrued had he remained employed throughout the Consulting Period.\n4.\nNo Admission of Liability.\nBobak acknowledges and agrees that he would not receive all the payments and benefits specified in this Agreement except\nfor his execution of this Agreement and his fulfillment of its terms. Neither the making of this Agreement, nor anything contained in it,\nshall in any way be construed or considered to be an admission by Anheuser-Busch of noncompliance with any law or of any other\nwrongdoing.\n5.\nRelease of Liability.\nA.\nExcept for any violation of the terms of this Agreement by Anheuser-Busch, Bobak, of his own free will, voluntarily\nreleases and forever discharges Anheuser-Busch from all actions, causes of action, claims, debts, charges, complaints, contracts\n(whether oral or written, express or implied from any source) and promises of any kind, in law or equity, whether known or unknown,\nwhich Bobak, his heirs, executors, administrators, successors and assigns (referred to collectively throughout this Agreement as\n"Bobak") may have from all time in the past to the effective date of this Agreement, including, but not limited to, all matters or claims\nrelating to or arising out of Bobak's employment by Anheuser-Busch and the cessation of his employment and including, but not limited\nto, any violation of:\n(1)\nTitle VII of the Civil Rights Act, as amended;\n(2)\nSections 1981 through 1988 of Title 42 of the United States Code;\n(3)\nthe Employee Retirement Income Security. Act, as amended;\n(4)\nthe Health Insurance Portability and Accountability. Act;\n(5)\nthe Family. and Medical Leave Act;\n(6)\nthe Age Discrimination in Employment Act, as amended;\n(7)\nthe Americans with Disabilities Act;\n5\n(8)\nthe Missouri Human Rights Act;\n(9)\nthe Sarbanes-Oxley. Act of 2002;\n(10) any other local, state or federal law, regulation or ordinance and/or public policy, contract, tort or common law\nhaving any bearing on the terms and conditions and/or cessation of his employment with Anheuser-Busch.\nExcept as otherwise provided in this Agreement, this release shall not apply to any claim for benefits that may be due to Bobak\nor his eligible dependents under any Anheuser-Busch employee benefit plan in which Bobak or his eligible dependents are or were\nparticipants.\nB.\nBobak warrants that he has not caused or permitted to be filed on his behalf any charge, complaint, or action before any\nfederal, state or local administrative agency or court against Anheuser-Busch. In the event that any such claim is asserted in the future,\nBobak agrees that this Agreement will act as a complete bar to his re-employment or to his recovery of any amount from Anheuser-\nBusch resulting, directly or indirectly, from any lawsuit, remedy, charge or complaint whether brought privately by him or by anyone\nelse, including any federal, state or local agency, whether or not on his behalf or at his request.\n6.\nConfidentiality.\nA.\nAs a result of his employment with Anheuser-Busch, Bobak has gained valuable confidential information and trade\nsecrets relevant to Anheuser-Busch's business operations including its information technology. In light of the highly competitive nature\nof the industry in which Anheuser-Busch's business is conducted, Bobak understands and agrees that he will keep in strict secrecy\nand confidence, and is specifically prohibited from disclosing, any and all unique, confidential and/or proprietary information and\nmaterial belonging or relating to Anheuser-Busch that is not a matter of common knowledge or otherwise generally available to the\npublic including, but not limited to, business, financial, trade, sales, technical or technological information, or corporate sales and\nmarketing strategies, to any entity that competes with Anheuser-Busch. In addition, Bobak agrees that he will not use any such\nconfidential information,\n6\nmaterials or trade secrets for the benefit of any of Anheuser-Busch's competitors and/or against the best interests of Anheuser-Busch.\nB.\nBobak agrees that he will make no public statements and take no public action that disparages or is detrimental to\nAnheuser-Busch (including without limitation, its directors, officers and employees), or would otherwise cause or contribute to\nAnheuser-Busch being held in disrepute by the general public, customers or employees. Anheuser-Busch Companies, Inc. (including,\nwithout limitation, its directors and officers) agrees that it will take no official public action that is intended to disparage or be\ndetrimental to Bobak. Anheuser-Busch also agrees to provide a mutually agreed-upon letter of reference to Bobak, and to provide a\ncopy of such letter in response to any inquiry to the office of the Anheuser-Busch Companies, Inc. Vice President, Corporate Human\nResources, from a prospective employer regarding Bobak's employment by Anheuser-Busch.\nC.\nBobak agrees that he has obligations under the Missouri Rules of Professional Conduct, that those obligations will\nsurvive the termination of his employment, and that nothing herein shall be deemed to abridge, impair or waive such obligations.\n7.\nRestrictive Covenants\nA.\nExcept as specifically provided in subparagraph 7B below, or as otherwise agreed to in writing by Anheuser-Busch\nand upon such terms and conditions as Anheuser-Busch may impose, from the date of the Agreement until December 31, 2012,\nBobak shall not, anywhere in the world, engage, directly or indirectly, in any activity for, or on behalf of, any business or organization\nthat manufactures, sells or distributes alcohol beverages and/or no-alcohol malt beverages, that promotes or encourages any\nrestrictions on, or regulation of, the use, distribution or marketing of alcohol beverages, or that otherwise competes with any current\nbusiness activity of Anheuser-Busch, either alone, as a member of a partnership or association, as an officer, director, employee,\nconsultant, lobbyist or representative of or to any corporation, industry trade association, not-for-profit organization, or other business\nentity, or as an investor in, or\n7\nbeneficial owner of 1% or more of any security of any class of any corporation, or 1% or more of any equity interest of any\nunincorporated enterprise.\nB.\nNotwithstanding the strict prohibitions in paragraph 7A above, Bobak may submit a request for approval in writing to\nthe Anheuser-Busch Companies, Inc. Vice President, Corporate Human Resources, if he wishes to provide services of any kind\ndescribed in paragraph 7A above. Such written request will be considered by Anheuser-Busch which shall determine, in its sole\ndiscretion, whether such request should be granted.\nC.\nBobak further agrees that he shall not solicit, recruit, or otherwise make contact with or respond to any contact from any\nemployee of Anheuser-Busch, anywhere in the world, for the purpose of engaging or hiring or obtaining, directly or indirectly, the\nemployee's services by or for another partnership, firm, company or organization.\n8.\nEnforceability and Choice of Law\nA.\nBobak and Anheuser-Busch agree that in the event either party breaches any provision of this Agreement, the sole\nremedy of the other party is the enforcement of the terms of this Agreement.\nB.\nBobak agrees that if he violates any provision of paragraph 6 or 7, or in the event that an arbitrator or court of\ncompetent jurisdiction rules that the restrictive covenants in paragraph 7 are not enforceable (either circumstance will be referred to in\nthis paragraph as an "Event"), he shall forfeit, as of the date of the Event, all remaining consulting payments described in paragraph\n2A, eligibility for Health Benefits described in paragraph 2E, any unpaid bonus described in paragraph 2G, any unexercised stock\noption\ngrants\nand unvested restricted stock grants described in paragraph 2H, the discretionary incentive payments described\nin\nparagraph 21 and any remaining payments described in the last two sentences of paragraph 3B. In the event that Anheuser-Busch\nbelieves that Bobak is in violation of paragraph 6 or 7 of this Agreement, Anheuser-Busch shal give Bobak written notice of such\nviolation, and Bobak shall be provided with a reasonable opportunity to cure such violation, discontinue such conduct, or present\ndocumented evidence establishing that the activity\n8\nor employment does not constitute a violation of this Agreement, prior to Anheuser-Busch availing itself of its remedies under this\nparagraph 8. Anheuser-Busch will have the right, at any time, to request that Bobak certify that he is in compliance with paragraphs\n6\nand 7, and Bobak's failure to certify compliance as requested will be deemed to be an Event as defined in this paragraph 8, a material\nviolation, and a material breach of this Agreement. Bobak understands and agrees that any breach of the provisions of paragraphs\n6\nor 7 of this Agreement shall constitute a material breach of this Agreement and that Anheuser-Busch, in addition to its right to\nterminate the Agreement, shall be entitled to injunctive and other equitable relief to prevent the threatened or continued breach of this\nAgreement.\nand\nsuch C. provision Except be declared as otherwise illegal or provided unenforceable in subparagraph by any arbitrator 8B above, or court should of Bobak competent challenge jurisdiction any provision and cannot of this be Agreement modified to\nbe enforceable, such provision will immediately become void, leaving the remainder of this Agreement in effect. However, if any\nportion of the general release (paragraph 5) is ruled to be unenforceable as a result of such challenge, Bobak agrees that Anheuser-\nBusch will be entitled to a set-off against any subsequent judgment or award made to Bobak in the amount of all compensation paid to\nhim by Anheuser-Busch under this Agreement.\nD.\nThe parties have read and fully considered the Agreement and mutually desire to enter into this Agreement. The\nterms of this Agreement are the product of mutual negotiation and compromise between Bobak and Anheuser-Busch. Having elected\nto execute this Agreement, to fulfill the promises and receive the benefits set forth herein, Bobak freely and knowingly, and after due\nconsideration, enters into this Agreement intending to waive, settle, and release all claims he has against Anheuser-Busch as the\neffective date of this Agreement.\nE.\nIt is the parties' intent and expectation that the insured medical, dental, vision and prescription drug benefits ("Exempt\nBenefits") provided to Bobak under the terms of this Agreement are exempt from the application of Internal Revenue Code Section\n409A ("Section 409A") and all regulations and other guidance issued thereunder. In the event that new regulations, interpretations or\nother legal guidance\n9\nchange that assessment, the parties intend that appropriate adjustments will be made to cause the Exempt Benefits to be exempt or,\nif\nthat is not possible, to cause the Exempt Benefits to comply with Section 409A. It is also the parties' intent and expectation that all\nforms of compensation provided by this Agreement that are subject to the application of Section 409A ("Nonexempt Benefits") will fully\ncomply with Section 409A, and in the event that new regulations, interpretations or other legal guidance change that assessment, the\nparties intend that appropriate adjustments will be made to cause the Nonexempt Benefits to comply with Section 409A.\n9.\nMiscellaneous\nA.\nThis Agreement constitutes a Summary of Material Modifications (SMM) that supplements the Eligibility and\nAdministrative\nRules\nBooklet\nsummary\nplan\ndescription\npreviously\ndistributed\nto\nBobak.\nAs\nan\nSMM,\nthis\nAgreement\nprovides\nBobak\nwith information about the Group Insurance Plan for Certain Employees of Anheuser-Busch Companies, Inc. and its Subsidiaries that\nis in addition to that contained in Bobak's Eligibility and Administrative Rules Booklet summary plan description and prior SMMS.\nB.\nBobak acknowledges that he has been advised by Anheuser-Busch that there may be substantial federal and state\nincome tax consequences for Bobak as a result of entering into this Agreement, and that he should seek professional tax and legal\nadvice before doing so. Bobak further acknowledges that he has not been provided with any advice on the tax effects of this\nAgreement by Anheuser-Busch or any of its employees or agents.\nC.\nAnheuser-Busch and Bobak agree that all disputes between the parties relating to or arising out of: (a) this\nAgreement; (b) Bobak's employment with Anheuser-Busch; and/or (c) the cessation of Bobak's employment with Anheuser-Busch\nmust be resolved through the Anheuser-Busch Dispute Resolution Program, which includes final and binding arbitration of covered\nclaims.\nBobak acknowledges that he has previously signed a "Mutual Agreement to Arbitrate Claims," the terms of which\nare\nincorporated into this Agreement by this reference and remain binding on the parties. An executed copy of the Mutual Agreement to\nArbitrate Claims is attached hereto. Notwithstanding\n10\nanything to the contrary contained herein, Anheuser-Busch shall be entitled to seek enforcement of the provisions of paragraphs 6 and\n7 in a court of competent jurisdiction.\n10.\nNotices\nUnless otherwise provided, all notices, requests, consents and other communications required or permitted under this\nAgreement must be in writing and must be hand-delivered or mailed, addressed as follows, or to such other address as may be\nprovided by the respective parties to this Agreement:\nIf to Anheuser-Busch:\nAnheuser-Busch Companies, Inc.\nOne Busch Place\nSt. Louis, MO 63118\nAttn.: Vice President, Corporate Human Resources\nIf to Mr. Bobak:\nMr. Mark T. Bobak\nAt his address on record with Anheuser-Busch\n11.\nThe validity of this Agreement shall be governed by and construed according to the law of the State of Missouri. This\nAgreement and the exhibits thereto constitute the entire and exclusive agreement between Bobak and Anheuser-Busch with respect to\nBobak's employment status and any rights and duties owed by Anheuser-Busch to Bobak and, except as otherwise provided in this\nAgreement,\nit\nsupersedes all previous or contemporaneous negotiations, commitments, agreements, statements, representations,\nor\npromises, oral or written. This Agreement may not be modified except in a writing signed by both parties.\n12.\nBOBAK STATES THAT HE HAS CAREFULLY READ THIS "CONSULTING AND NON-DISCLOSURE AGREEMENT AND\nGENERAL RELEASE," THAT HE KNOWS AND UNDERSTANDS ITS CONTENTS AND THAT HE IS ENTERING INTO THIS\nAGREEMENT AS HIS OWN FREE ACT AND DEED. BOBAK FURTHER REPRESENTS AND AGREES THAT:\nHE HAS BEEN ADVISED BY ANHEUSER-BUSCH TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS\nAGREEMENT;\n11\nHE FULLY UNDERSTANDS THAT HIS EXECUTION OF THIS AGREEMENT CONSTITUTES A FULL AND FINAL\nRELEASE OF ALL CLAIMS HE MAY HAVE AGAINST ANHEUSER-BUSCH AS OF THE EFFECTIVE DATE OF THE\nAGREEMENT WITH FINAL AND BINDING EFFECT;\nHE HAS BEEN GIVEN AT LEAST 21 DAYS TO CONSIDER THIS AGREEMENT;\nFOR A PERIOD OF 7 DAYS FROM THE DATE HE SIGNS THIS AGREEMENT, BOBAK MAY REVOKE THIS\nAGREEMENT BY NOTIFYING ANHEUSER-BUSCH IN WRITING OF HIS INTENT TO DO SO; AND\nTHIS AGREEMENT WILL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS\nEXPIRED.\nTHIS AGREEMENT IS SUBJECT TO A BINDING ARBITRATION AGREEMENT, WHICH MAY BE ENFORCED BY THE PARTIES.\nThe parties to this Consulting and Non-Disclosure Agreement and General Release now voluntarily and knowingly execute this\nAgreement.\nANHEUSER-BUSCH COMPANIES, INC.,\nBy: Is/ John T. Farrel\nDate: 12/10/07\nVice President, Corporate Human Resources\nIs/ Mark T. Bobak\nDate: 12/10/07\nMARK T. BOBAK\n12	EX-10.30 8 ex10p30.htm\nExhibit 10.30\nCONSULTING AND NON-DISCLOSURE AGREEMENT\nAND GENERAL RELEASE\nANHEUSER-BUSCH COMPANIES, INC., a Delaware corporation with its principal offices at One Busch Place, St. Louis,\nMissouri, 63118, its affiliates, subsidiaries, divisions, successors and assigns, and their directors, officers, employees and agents, both\nin their official and individual capacities (all of whom are collectively referred to throughout this Consulting and Non-Disclosure\nAgreement and General Release as “Anheuser-Busch”), and MARK T. BOBAK (“Bobak”), residing in St. Louis, Missouri, mutually\ndesire to enter into this Consulting and Non-Disclosure Agreement and General Release (“Agreement”) and agree as follows:\n1.\nTermination of Employment\nBobak agrees to terminate employment with Anheuser-Busch on December 31, 2007, (“Termination Date”) in order to allow him\nto return to the private practice of law.\n2.\nConsulting Payments\nAnheuser-Busch agrees that during the period from the Termination Date through December 31, 2012 (the “Consulting\nPeriod”), so long as Bobak fulfills any assigned duties and complies with all Anheuser-Busch policies and the provisions of this\nAgreement:\nA.\nBobak will be paid a consulting fee of $52,884 per month. All consulting payments shall be payable in semi-monthly\ninstallments on the 15th and last day of each month, less applicable withholding. In the event that Bobak dies prior to December 31,\n2012, Anheuser-Busch agrees to pay any remaining consulting payments due under this Agreement to Bobak’s spouse unless\notherwise directed in writing by Bobak.\nB.\nBobak agrees to devote the time necessary to complete any projects assigned to him by the Chief Executive Officer or\nhis designee. Anheuser-Busch will provide reasonable advance notice to Bobak of any work assignments, and will take into\nconsideration Bobak’s other commitments. Bobak also agrees that he will fully\ncooperate with any request made by Anheuser-Busch relating to or arising out of corporate transactions, labor relations, government\naffairs, litigation or any other matter that Bobak worked on, learned of, or became familiar with during his employment with Anheuser-\nBusch. Bobak will work from his personal residence or office and will not be provided with a company office or reserved parking\nspot. Bobak may retain his Blackberry/cell phone, computer, home fax machine, and company e-mail address for purposes of\nperforming services contemplated by this Agreement. Such items will be returned upon request by Anheuser-Busch. Subject to the\nprovisions of this Agreement and provided there is no interference with Bobak’s efforts as requested by Anheuser-Busch, Bobak may\nprovide services to other employers at any time after the Termination Date. Bobak agrees to provide to the Chief Executive Officer a\nreport of all projects and assignments that he is working on for Anheuser-Busch on a quarterly basis.\nC.\nAnheuser-Busch will reimburse Bobak, pursuant to company expense reimbursement guidelines, for all ordinary,\nnecessary and reasonable business expenses incurred by Bobak while conducting assignments for Anheuser-Busch at the direction of\nthe Chief Executive Officer or his designee.\nD.\nExcept as otherwise provided in this Agreement, Bobak agrees to return all Anheuser-Busch property (including, but\nnot limited to, company documents and records, whether in electronic or paper format, and all copies thereof, computers, cell phones,\nblackberries, fax machines, pagers, security badge and credit cards) on or before the Termination Date.\nE.\nAnheuser-Busch will continue to provide Bobak and his eligible dependents with health care benefits as described\nherein (“Health Benefits”). Until Bobak reaches the age of 58, he and his eligible dependents will continue to participate in the Group\nInsurance Plan for Certain Employees of Anheuser-Busch Companies, Inc. and its Subsidiaries (“Group Insurance Plan”), except that\nhis benefits under the Group Insurance Plan will be limited to insured medical, dental, vision and prescription drug benefits (“Health\nBenefits”) that are materially similar to the health benefits provided from time to time to Anheuser-Busch full-time salaried employees,\nand subject to the same benefit limits, co-payments, premium payments and deductibles. Upon Bobak\n2\nreaching age 58, he and his eligible dependents will participate in the Group Insurance Plan for Certain Retirees of Anheuser-Busch\n(Retiree Insurance Plan), except that the Health Benefits will be limited to those that are materially similar to the health benefits\nprovided from time to time to Anheuser-Busch retirees and subject to the same benefits limits, co-payments, premium payments and\ndeductibles. The selection of insurance carriers to provide the Health Benefits shall be in the sole discretion of Anheuser-Busch\nCompanies, Inc. The Health Benefits provided to Bobak during the Consulting Period shall, for purposes of coordination of benefits, be\nsecondary to any subsequent benefit coverage(s) for which Bobak, his spouse and eligible dependents become eligible as a result of\nBobak becoming an employee for any other employer. Bobak agrees that in the event he obtains new employment during the\nConsulting Period, he shall notify the Anheuser-Busch Companies, Inc. Vice President, Corporate Human Resources, in writing within\n30 days after he first becomes eligible for any health benefit coverage through any subsequent employer(s) and will provide Anheuser-\nBusch with a copy of the summary plan descriptions for such coverage(s).\nF.\nExcept as otherwise specifically provided herein, during the Consulting Period Bobak will not be eligible for any\nbenefits from Anheuser-Busch Companies, Inc., or any of its subsidiaries, including, but not limited to, the following:\ni) long-term disability insurance coverage;\nii) short-term disability coverage;\niii) life insurance or retiree life insurance;\niv) paid sick days;\nv) health care and/or dependent care spending account benefits;\nvi) legal assistance benefits;\nvii) country club membership;\nviii) monthly beer tickets and/or other complimentary beer; and\nix)\naccess to, or use of, the executive dining room, fitness center or barber shop.\nG.\nSubject to review by the Compensation Committee of the audited financial statements and its certification that the\nperformance goal set forth in the 2007 Officer\n3\nBonus Program has been met, Bobak shall receive a bonus for 2007 in the amount of $600,000 no later than March 1, 2008.\nH.\nNotwithstanding Bobak’s termination of employment, unvested stock option grants made to Bobak in 2005, 2006, and\n2007 shall not terminate and shall vest and become exercisable in accordance with their original schedule; vested stock option grants\nmade to Bobak prior to 2005 shall not terminate and shall remain exercisable for a period of five years following termination of\nemployment (or, if shorter, for their stated terms); vested stock option grants made to Bobak in 2005 and afterwards shall not terminate\nand shall remain exercisable for their stated terms; and restricted stock grants made to Bobak shall not terminate and shall vest in\naccordance with their original terms, but only to the extent that the performance goals related to such grants are achieved. All such\ngrants shall otherwise remain subject to the terms of the applicable plans and agreements under which they were granted.\nI.\nBobak shall be eligible for incentive payments for 2008 and 2009 based on the successful completion of certain key\ninitiatives and the attainment of certain key objectives in the Legal and Industry and Government Affairs Departments, as determined\nby the Chief Executive Officer of Anheuser-Busch in his sole discretion.\n3.\nSeparation Benefits\nA.\nBobak agrees that upon his Termination Date, he will not be entitled to any severance benefits or any retiree life\ninsurance benefits under any benefit plan of Anheuser-Busch Companies, Inc., or any of its subsidiaries.\nB.\nAfter his Termination Date, Bobak will be entitled to elect distribution of his benefits from the Anheuser-Busch Salaried\nEmployees’ Pension Plan (“SEPP”) and the Anheuser-Busch Deferred Income Stock Purchase and Savings Plan (“401(k) Plan”)\npursuant to the terms of those plans. Bobak understands that processing of benefits from the SEPP or the 401(k) Plan will not begin\nuntil he notifies the SEPP or 401(k) Plan Administrator in writing that he wants to receive a distribution of benefits from the respective\nplan. Bobak shall become vested in his accrued benefit under the Anheuser-Busch Supplemental Executive Retirement Plan (“SERP”)\non the Termination Date, and shall receive his distribution under the SERP as a lump sum payment in the amount of\n4\n$1,304,118 on or about the first regularly scheduled business day after January 1, 2013. Bobak will also receive a lump sum payment\nof $1,095,882 on or about the first regularly scheduled business day after January 1, 2013 as payment of additional pension benefits\nhe would have accrued had he remained employed throughout the Consulting Period.\n4.\nNo Admission of Liability\nBobak acknowledges and agrees that he would not receive all the payments and benefits specified in this Agreement except\nfor his execution of this Agreement and his fulfillment of its terms. Neither the making of this Agreement, nor anything contained in it,\nshall in any way be construed or considered to be an admission by Anheuser-Busch of noncompliance with any law or of any other\nwrongdoing.\n5.\nRelease of Liability\nA.\nExcept for any violation of the terms of this Agreement by Anheuser-Busch, Bobak, of his own free will, voluntarily\nreleases and forever discharges Anheuser-Busch from all actions, causes of action, claims, debts, charges, complaints, contracts\n(whether oral or written, express or implied from any source) and promises of any kind, in law or equity, whether known or unknown,\nwhich Bobak, his heirs, executors, administrators, successors and assigns (referred to collectively throughout this Agreement as\n“Bobak”) may have from all time in the past to the effective date of this Agreement, including, but not limited to, all matters or claims\nrelating to or arising out of Bobak’s employment by Anheuser-Busch and the cessation of his employment and including, but not limited\nto, any violation of:\n(1) Title VII of the Civil Rights Act, as amended;\n(2) Sections 1981 through 1988 of Title 42 of the United States Code;\n(3) the Employee Retirement Income Security Act, as amended;\n(4) the Health Insurance Portability and Accountability Act;\n(5) the Family and Medical Leave Act;\n(6) the Age Discrimination in Employment Act, as amended;\n(7) the Americans with Disabilities Act;\n5\n(8) the Missouri Human Rights Act;\n(9) the Sarbanes-Oxley Act of 2002;\n(10) any other local, state or federal law, regulation or ordinance and/or public policy, contract, tort or common law\nhaving any bearing on the terms and conditions and/or cessation of his employment with Anheuser-Busch.\nExcept as otherwise provided in this Agreement, this release shall not apply to any claim for benefits that may be due to Bobak\nor his eligible dependents under any Anheuser-Busch employee benefit plan in which Bobak or his eligible dependents are or were\nparticipants.\nB.\nBobak warrants that he has not caused or permitted to be filed on his behalf any charge, complaint, or action before any\nfederal, state or local administrative agency or court against Anheuser-Busch. In the event that any such claim is asserted in the future,\nBobak agrees that this Agreement will act as a complete bar to his re-employment or to his recovery of any amount from Anheuser-\nBusch resulting, directly or indirectly, from any lawsuit, remedy, charge or complaint whether brought privately by him or by anyone\nelse, including any federal, state or local agency, whether or not on his behalf or at his request.\n6.\nConfidentiality\nA.\nAs a result of his employment with Anheuser-Busch, Bobak has gained valuable confidential information and trade\nsecrets relevant to Anheuser-Busch’s business operations including its information technology. In light of the highly competitive nature\nof the industry in which Anheuser-Busch’s business is conducted, Bobak understands and agrees that he will keep in strict secrecy\nand confidence, and is specifically prohibited from disclosing, any and all unique, confidential and/or proprietary information and\nmaterial belonging or relating to Anheuser-Busch that is not a matter of common knowledge or otherwise generally available to the\npublic including, but not limited to, business, financial, trade, sales, technical or technological information, or corporate sales and\nmarketing strategies, to any entity that competes with Anheuser-Busch. In addition, Bobak agrees that he will not use any such\nconfidential information,\n6\nmaterials or trade secrets for the benefit of any of Anheuser-Busch’s competitors and/or against the best interests of Anheuser-Busch.\nB.\nBobak agrees that he will make no public statements and take no public action that disparages or is detrimental to\nAnheuser-Busch (including without limitation, its directors, officers and employees), or would otherwise cause or contribute to\nAnheuser-Busch being held in disrepute by the general public, customers or employees. Anheuser-Busch Companies, Inc. (including,\nwithout limitation, its directors and officers) agrees that it will take no official public action that is intended to disparage or be\ndetrimental to Bobak. Anheuser-Busch also agrees to provide a mutually agreed-upon letter of reference to Bobak, and to provide a\ncopy of such letter in response to any inquiry to the office of the Anheuser-Busch Companies, Inc. Vice President, Corporate Human\nResources, from a prospective employer regarding Bobak’s employment by Anheuser-Busch.\nC.\nBobak agrees that he has obligations under the Missouri Rules of Professional Conduct, that those obligations will\nsurvive the termination of his employment, and that nothing herein shall be deemed to abridge, impair or waive such obligations.\n7.\nRestrictive Covenants\nA.\nExcept as specifically provided in subparagraph 7B below, or as otherwise agreed to in writing by Anheuser-Busch,\nand upon such terms and conditions as Anheuser-Busch may impose, from the date of the Agreement until December 31, 2012,\nBobak shall not, anywhere in the world, engage, directly or indirectly, in any activity for, or on behalf of, any business or organization\nthat manufactures, sells or distributes alcohol beverages and/or no-alcohol malt beverages, that promotes or encourages any\nrestrictions on, or regulation of, the use, distribution or marketing of alcohol beverages, or that otherwise competes with any current\nbusiness activity of Anheuser-Busch, either alone, as a member of a partnership or association, as an officer, director, employee,\nconsultant, lobbyist or representative of or to any corporation, industry trade association, not-for-profit organization, or other business\nentity, or as an investor in, or\n7\nbeneficial owner of 1% or more of any security of any class of any corporation, or 1% or more of any equity interest of any\nunincorporated enterprise.\nB.\nNotwithstanding the strict prohibitions in paragraph 7A above, Bobak may submit a request for approval in writing to\nthe Anheuser-Busch Companies, Inc. Vice President, Corporate Human Resources, if he wishes to provide services of any kind\ndescribed in paragraph 7A above. Such written request will be considered by Anheuser-Busch which shall determine, in its sole\ndiscretion, whether such request should be granted.\nC.\nBobak further agrees that he shall not solicit, recruit, or otherwise make contact with or respond to any contact from any\nemployee of Anheuser-Busch, anywhere in the world, for the purpose of engaging or hiring or obtaining, directly or indirectly, the\nemployee’s services by or for another partnership, firm, company or organization.\n8.\nEnforceability and Choice of Law\nA.\nBobak and Anheuser-Busch agree that in the event either party breaches any provision of this Agreement, the sole\nremedy of the other party is the enforcement of the terms of this Agreement.\nB.\nBobak agrees that if he violates any provision of paragraph 6 or 7, or in the event that an arbitrator or court of\ncompetent jurisdiction rules that the restrictive covenants in paragraph 7 are not enforceable (either circumstance will be referred to in\nthis paragraph as an “Event”), he shall forfeit, as of the date of the Event, all remaining consulting payments described in paragraph\n2A, eligibility for Health Benefits described in paragraph 2E, any unpaid bonus described in paragraph 2G, any unexercised stock\noption grants and unvested restricted stock grants described in paragraph 2H, the discretionary incentive payments described in\nparagraph 2I and any remaining payments described in the last two sentences of paragraph 3B. In the event that Anheuser-Busch\nbelieves that Bobak is in violation of paragraph 6 or 7 of this Agreement, Anheuser-Busch shall give Bobak written notice of such\nviolation, and Bobak shall be provided with a reasonable opportunity to cure such violation, discontinue such conduct, or present\ndocumented evidence establishing that the activity\n8\nor employment does not constitute a violation of this Agreement, prior to Anheuser-Busch availing itself of its remedies under this\nparagraph 8. Anheuser-Busch will have the right, at any time, to request that Bobak certify that he is in compliance with paragraphs 6\nand 7, and Bobak’s failure to certify compliance as requested will be deemed to be an Event as defined in this paragraph 8, a material\nviolation, and a material breach of this Agreement. Bobak understands and agrees that any breach of the provisions of paragraphs 6\nor 7 of this Agreement shall constitute a material breach of this Agreement and that Anheuser-Busch, in addition to its right to\nterminate the Agreement, shall be entitled to injunctive and other equitable relief to prevent the threatened or continued breach of this\nAgreement.\nC.\nExcept as otherwise provided in subparagraph 8B above, should Bobak challenge any provision of this Agreement\nand such provision be declared illegal or unenforceable by any arbitrator or court of competent jurisdiction and cannot be modified to\nbe enforceable, such provision will immediately become void, leaving the remainder of this Agreement in effect. However, if any\nportion of the general release (paragraph 5) is ruled to be unenforceable as a result of such challenge, Bobak agrees that Anheuser-\nBusch will be entitled to a set-off against any subsequent judgment or award made to Bobak in the amount of all compensation paid to\nhim by Anheuser-Busch under this Agreement.\nD.\nThe parties have read and fully considered the Agreement and mutually desire to enter into this Agreement. The\nterms of this Agreement are the product of mutual negotiation and compromise between Bobak and Anheuser-Busch. Having elected\nto execute this Agreement, to fulfill the promises and receive the benefits set forth herein, Bobak freely and knowingly, and after due\nconsideration, enters into this Agreement intending to waive, settle, and release all claims he has against Anheuser-Busch as the\neffective date of this Agreement.\nE.\nIt is the parties’ intent and expectation that the insured medical, dental, vision and prescription drug benefits (“Exempt\nBenefits”) provided to Bobak under the terms of this Agreement are exempt from the application of Internal Revenue Code Section\n409A (“Section 409A”) and all regulations and other guidance issued thereunder. In the event that new regulations, interpretations or\nother legal guidance\n9\nchange that assessment, the parties intend that appropriate adjustments will be made to cause the Exempt Benefits to be exempt or, if\nthat is not possible, to cause the Exempt Benefits to comply with Section 409A. It is also the parties’ intent and expectation that all\nforms of compensation provided by this Agreement that are subject to the application of Section 409A (“Nonexempt Benefits”) will fully\ncomply with Section 409A, and in the event that new regulations, interpretations or other legal guidance change that assessment, the\nparties intend that appropriate adjustments will be made to cause the Nonexempt Benefits to comply with Section 409A.\n9.\nMiscellaneous\nA.\nThis Agreement constitutes a Summary of Material Modifications (SMM) that supplements the Eligibility and\nAdministrative Rules Booklet summary plan description previously distributed to Bobak. As an SMM, this Agreement provides Bobak\nwith information about the Group Insurance Plan for Certain Employees of Anheuser-Busch Companies, Inc. and its Subsidiaries that\nis in addition to that contained in Bobak’s Eligibility and Administrative Rules Booklet summary plan description and prior SMMs.\nB.\nBobak acknowledges that he has been advised by Anheuser-Busch that there may be substantial federal and state\nincome tax consequences for Bobak as a result of entering into this Agreement, and that he should seek professional tax and legal\nadvice before doing so. Bobak further acknowledges that he has not been provided with any advice on the tax effects of this\nAgreement by Anheuser-Busch or any of its employees or agents.\nC.\nAnheuser-Busch and Bobak agree that all disputes between the parties relating to or arising out of: (a) this\nAgreement; (b) Bobak’s employment with Anheuser-Busch; and/or (c) the cessation of Bobak’s employment with Anheuser-Busch\nmust be resolved through the Anheuser-Busch Dispute Resolution Program, which includes final and binding arbitration of covered\nclaims. Bobak acknowledges that he has previously signed a “Mutual Agreement to Arbitrate Claims,” the terms of which are\nincorporated into this Agreement by this reference and remain binding on the parties. An executed copy of the Mutual Agreement to\nArbitrate Claims is attached hereto. Notwithstanding\n10\nanything to the contrary contained herein, Anheuser-Busch shall be entitled to seek enforcement of the provisions of paragraphs 6 and\n7 in a court of competent jurisdiction.\n10.\nNotices\nUnless otherwise provided, all notices, requests, consents and other communications required or permitted under this\nAgreement must be in writing and must be hand-delivered or mailed, addressed as follows, or to such other address as may be\nprovided by the respective parties to this Agreement:\nIf to Anheuser-Busch:\nAnheuser-Busch Companies, Inc.\nOne Busch Place\nSt. Louis, MO 63118\nAttn.: Vice President, Corporate Human Resources\nIf to Mr. Bobak:\nMr. Mark T. Bobak\nAt his address on record with Anheuser-Busch\n11.\nThe validity of this Agreement shall be governed by and construed according to the law of the State of Missouri. This\nAgreement and the exhibits thereto constitute the entire and exclusive agreement between Bobak and Anheuser-Busch with respect to\nBobak’s employment status and any rights and duties owed by Anheuser-Busch to Bobak and, except as otherwise provided in this\nAgreement, it supersedes all previous or contemporaneous negotiations, commitments, agreements, statements, representations, or\npromises, oral or written. This Agreement may not be modified except in a writing signed by both parties.\n12.\nBOBAK STATES THAT HE HAS CAREFULLY READ THIS “CONSULTING AND NON-DISCLOSURE AGREEMENT AND\nGENERAL RELEASE,” THAT HE KNOWS AND UNDERSTANDS ITS CONTENTS AND THAT HE IS ENTERING INTO THIS\nAGREEMENT AS HIS OWN FREE ACT AND DEED. BOBAK FURTHER REPRESENTS AND AGREES THAT:\n·\nHE HAS BEEN ADVISED BY ANHEUSER-BUSCH TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS\nAGREEMENT;\n11\n·\nHE FULLY UNDERSTANDS THAT HIS EXECUTION OF THIS AGREEMENT CONSTITUTES A FULL AND FINAL\nRELEASE OF ALL CLAIMS HE MAY HAVE AGAINST ANHEUSER-BUSCH AS OF THE EFFECTIVE DATE OF THE\nAGREEMENT WITH FINAL AND BINDING EFFECT;\n·\nHE HAS BEEN GIVEN AT LEAST 21 DAYS TO CONSIDER THIS AGREEMENT;\n·\nFOR A PERIOD OF 7 DAYS FROM THE DATE HE SIGNS THIS AGREEMENT, BOBAK MAY REVOKE THIS\nAGREEMENT BY NOTIFYING ANHEUSER-BUSCH IN WRITING OF HIS INTENT TO DO SO; AND\n·\nTHIS AGREEMENT WILL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS\nEXPIRED.\nTHIS AGREEMENT IS SUBJECT TO A BINDING ARBITRATION AGREEMENT, WHICH MAY BE ENFORCED BY THE PARTIES.\nThe parties to this Consulting and Non-Disclosure Agreement and General Release now voluntarily and knowingly execute this\nAgreement.\nANHEUSER-BUSCH COMPANIES, INC.,\nBy: /s/ John T. Farrell\nDate: 12/10/07\nVice President, Corporate Human Resources\n/s/ Mark T. Bobak\nDate: 12/10/07\nMARK T. BOBAK\n12
+e8c84be1bf741406d0d1f3c6c16bdbd9.pdf	effective_date jurisdiction party term	EX-99.(D)(4) 13 d250779dex99d4.htm MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(4)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”) is entered into this 2nd day of July, 2011, by and between Yahoo! Inc., a Delaware\ncorporation (“Yahoo”) and the undersigned entity (“Counterparty”). Yahoo and Counterparty hereby agree as follows:\n1\nIn connection with our mutual consideration of a possible\nstrategic transaction (a “Transaction”) Yahoo and Counterparty expect\nto make available to one another certain information concerning their\nrespective businesses including, but not limited to, technology,\nfinancial forecasts, financial condition, operations, assets and liabilities\nand business strategies. As a condition to such information being\nfurnished to each party and its subsidiaries, directors, officers,\nemployees, agents or advisors (including, attorneys, accountants,\nconsultants, bankers and financial advisors) (collectively,\n“Representatives”), each party agrees to treat all Evaluation Material in\naccordance with the provisions of this Agreement, and to take or\nabstain from taking certain other actions hereinafter set forth.\n1. Evaluation Material. The term “Evaluation Material” shall be\ndeemed to include all information concerning the other party (whether\nprepared by the disclosing party or its Representatives) which is\nfurnished to a party or to its Representatives in connection with the\nparties’ evaluation of a possible Transaction, in each case by or on\nbehalf of the disclosing party in accordance with the provisions of this\nAgreement. The term “Evaluation Material” also shall include all\nnotes, analyses, compilations, studies, interpretations or other\ndocuments prepared by each party or its Representatives which\ncontain, reflect or are based upon, in whole or in part, the information\nfurnished to such party or its Representatives pursuant hereto which is\nnot available to the general public. Notwithstanding the foregoing, the\nterm “Evaluation Material”\ndoes not include information which (i) is or becomes generally\navailable to the public other than as a result of a breach of this\nAgreement by the receiving party or its Representatives; (ii) was within\nthe receiving party’s possession prior to its being furnished to the\nreceiving party by or on behalf of the disclosing party, provided that to\nthe receiving party’s knowledge, the source of such information is not\nand was not bound at the time of delivery by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, the disclosing party; (iii) is or becomes available to\nthe receiving party on a non-confidential basis from a source that to the\nreceiving party’s knowledge, is not and was not bound at the time such\ninformation becomes available by a confidentiality agreement with, or\nother contractual, legal or fiduciary obligation of confidentiality to, the\ndisclosing party with respect to such information; or (iv) is\nindependently developed by the receiving party without use of\nEvaluation Material.\n2. Use of Evaluation Material. Each party hereby agrees that it and\nits Representatives shall use the other’s Evaluation Material solely for\nthe purpose of evaluating a possible Transaction between the parties.\nEach party and its Representatives will keep the Evaluation Material\nconfidential and will not disclose for any purpose any of the other’s\nEvaluation Material in any manner whatsoever; provided, however,\nthat (i) the receiving party may make any disclosure of such\ninformation to the extent to which the disclosing party gives its prior\nwritten consent and (ii) any of such information\n2\nmay be disclosed to the receiving party’s Representatives who need to\nknow such information for the sole purpose of evaluating a possible\nTransaction between the parties, provided that each such\nRepresentative agrees to treat such information as confidential. Each\nparty agrees to be responsible for any breach of this Agreement by any\nof its Representatives.\n3. Non-Disclosure. In addition, each party agrees that, without the\nprior written consent of the other party, neither the receiving party nor\nits Representatives will disclose to any other person the fact that any\nEvaluation Material has been made available hereunder, that\ndiscussions or negotiations are taking place concerning a possible\nTransaction involving the parties or any of the terms, conditions or\nother facts with respect thereto (including the status thereof); provided\nthat a party may make such disclosure subject to the provisions of\nSection 4 hereof.\n4. Required Disclosure. In the event that a party or its\nRepresentatives are requested or required by applicable law, regulation\nor legal process (including oral questions, interrogatories, requests for\ninformation or documents in legal proceedings, subpoena, civil\ninvestigative demand or other similar process) to disclose any of the\nother party’s Evaluation Material, the party requested or required to\nmake the disclosure shall provide the other party with prompt notice,\nunless notice is prohibited by law, of any such request or requirement\nso that the other party may seek a protective order or other appropriate\nremedy and/or waive compliance with the provisions of this\nAgreement. If, in the absence of a protective order or other remedy or\nthe receipt of a waiver by such other party, the party requested or\nrequired to make the disclosure or any of its\nRepresentatives are nonetheless, under the advice of counsel, legally\nrequired to disclose the other party’s Evaluation Material, the party\nrequested or required to make the disclosure or its Representative may,\nwithout liability hereunder, disclose only that portion of the other\nparty’s Evaluation Material which such counsel advises is legally\nrequired to be disclosed.\n5. Independent Development. The disclosing party understands that\nthe receiving party may currently or in the future be developing\ninformation internally, or receiving information from other parties that\nmay be similar to the disclosing party’s Evaluation Material. Nothing\nin this Agreement will prohibit the receiving party from developing (or\nhaving developed for it) products, concepts, systems or techniques that\nare similar to or compete with the products, concepts, systems or\ntechniques contemplated by or embodied in the disclosing party’s\nEvaluation Material provided that the receiving party does not violate\nany of its obligations under this Agreement. Neither party shall have\nany obligation to limit or restrict the assignment of its employees or\nconsultants as a result of such party having had access to Evaluation\nMaterial. Each party acknowledges that the other party’s personnel\nmay retain certain information in their memories from access to the\nEvaluation Material. The portion(s) of such information, which are\nretained in such a person’s unaided memory without reference to any\ncopies of Evaluation Material in written, electronic or other fixed form,\nshall be known as “Residual Information.” Subject to any copyrights,\nmask work rights or patent rights of the disclosing party, utilization of\nsuch Residual Information by the receiving party will not in itself\nconstitute a breach of this Agreement.\n3\n6. Return of Evaluation Material. At any time upon the request of\neither disclosing party for any reason, each receiving party will\npromptly deliver to the disclosing party or destroy all written\nEvaluation Material furnished to the receiving party or its\nRepresentatives by or on behalf of the disclosing party pursuant hereto\n(including all copies thereof and extracts therefrom). In no event shall\neither party be obligated to disclose or provide the Evaluation Material\nprepared by it or by its Representatives, privileged communications or\nindependently developed materials to the other party. Notwithstanding\nthe return or destruction of the Evaluation Material, each party and its\nRepresentatives, unless otherwise provided herein, will continue to be\nbound by its obligations of confidentiality and other obligations\nhereunder for a period of one (1) year from the date hereof, provided\nthat with respect to trade secrets, the obligation of confidentiality shall\ncontinue for so long as such information is subject to protection as a\ntrade secret by the disclosing party.\n7. No Representation of Accuracy. Each party understands and\nacknowledges that neither party nor any of its Representatives makes\nany representation or warranty, express or implied, as to the accuracy\nor completeness of the Evaluation Material made available by it or to\nit. Each party agrees that neither party nor any of its Representatives\nshall have any liability to the other party or to any of its\nRepresentatives relating to or resulting from the use of or reliance upon\nsuch other party’s Evaluation Material or any errors therein or\nomissions therefrom. With respect to the Evaluation Material, only\nthose representations or warranties which are made in a final definitive\nagreement regarding the Transaction, when, as and if executed, and\nsubject to such limitations and restrictions as may be specified therein,\nwill have any legal effect.\n8. No Further Obligations. Each party understands and agrees that\nno contract or agreement providing for any Transaction involving the\nparties shall be deemed to exist between the parties unless and until a\nfinal definitive agreement has been executed and delivered. Each party\nalso agrees that unless and until a final definitive agreement regarding\na Transaction between the parties has been executed and delivered,\nneither party will be under any legal obligation of any kind whatsoever\nwith respect to such a Transaction by virtue of this Agreement except\nfor the matters specifically agreed to herein. Both parties further\nacknowledge and agree that each party reserves the right, in its sole\ndiscretion, to provide or not provide Evaluation Material to the\nreceiving party under this Agreement, to reject any and all proposals\nmade by the other party or any of its Representatives with regard to a\nTransaction between the parties, and to terminate discussions and\nnegotiations at any time.\n9. Injunctive Relief. It is further understood and agreed that money\ndamages may not be a sufficient remedy for any breach of this\nAgreement by either party or any of its Representatives and that the\nnon-breaching party may be entitled to equitable relief, including\ninjunction and specific performance, as a remedy for any such breach.\nSuch remedies shall not be deemed to be the exclusive remedies for a\nbreach of this Agreement but shall be in addition to all other remedies\navailable at law or equity.\n10. Governing Law. This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of California\napplicable to agreements made and to be performed within such State\nwithout regard to choice of law rules.\n4\n11. Term. This Agreement between the parties shall expire on the\nearlier of (a) the execution of a definitive agreement between the\nparties (unless otherwise provided in such agreement) and (b) one year\nfrom the date hereof, provided that the terms of paragraph 6 shall\nsurvive the termination or expiration of this Agreement, and provided\nfurther that such expiration shall not relieve any party for liability for\nbreach of this Agreement occurring before such expiration.\n12. Counterparts. This Agreement may be executed in two or more\ncounterparts, each of which shall be deemed an original, but all of\nwhich shall constitute one and the same instrument.\n13. Miscellaneous.\n(a) Unless the context of this Agreement otherwise clearly requires,\n(i) references to the plural include the singular, and references to the\nsingular include the plural, (ii) references to any gender include the\nother genders, (iii) the words “include,” “includes” and “including” do\nnot limit the preceding terms or words and shall be deemed to be\nfollowed by the words “without limitation,” and (iv) the terms\n“hereof,” “herein,” “hereunder,” “hereto” and similar terms in this\nAgreement refer to this Agreement as a whole and not to any particular\nprovision of this Agreement.\n(b) No failure or delay by a party or any of its Representatives in\nexercising any right, power or privileges under this Agreement shall\noperate as a waiver thereof nor shall any single or partial exercise\nthereof preclude any other or further exercise of any right, power or\nprivilege hereunder.\n(c) In case any provision of this agreement shall be invalid, illegal or\nunenforceable, the validity, legality and enforceability of the remaining\nprovisions of the Agreement shall not in any way be affected or\nimpaired thereby.\n(d) This Agreement contains the entire and sole agreement between\nthe parties concerning the subject matter hereof. This Agreement may\nbe changed only by a written agreement signed by the parties hereto or\ntheir authorized representatives.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this\nAgreement shall become a binding Agreement between Yahoo and the undersigned Counterparty. This Agreement may be executed by a facsimile\nsignature.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.\nYahoo! Inc.\nBy: /s/ Marcus Shen\nName:\nMarcus Shen\nTitle:\nHead of Corporate Development\nFacsimile: 408.349.7721\nInterclick, Inc. Inc.\nBy: /s/ Michael Katz\nName:\nMichael Katz\nTitle:\nChief Executive Officer\nFacsimile: 646.558.1223\n5	EX-99.(D)(4) 13 d250779dex99d4.htm MUTUAL NONDISCLOSURE AGREEMENT Exhibit (d)(4)\nMUTUAL NONDISCLOSURE AGREEMENT This Mutual Nondisclosure Agreement (this “Agreement”) is entered into this 2nd day of July, 2011, by and between Yahoo! Inc., a Delaware corporation (“Yahoo”) and the undersigned entity (“Counterparty”). Yahoo and Counterparty hereby agree as follows: In connection with our mutual consideration of a possible\nstrategic transaction (a “Transaction”) Yahoo and Counterparty expect\nto make available to one another certain information concerning their\nrespective businesses including, but not limited to, technology,\nfinancial forecasts, financial condition, operations, assets and liabilities\nand business strategies. As a condition to such information being\nfurnished to each party and its subsidiaries, directors, officers,\nemployees, agents or advisors (including, attorneys, accountants,\nconsultants, bankers and financial advisors) (collectively,\n“Representatives™), each party agrees to treat all Evaluation Material in\naccordance with the provisions of this Agreement, and to take or\nabstain from taking certain other actions hereinafter set forth.\n1. Evaluation Material. The term “Evaluation Material” shall be\ndeemed to include all information concerning the other party (whether\nprepared by the disclosing party or its Representatives) which is\nfurnished to a party or to its Representatives in connection with the\nparties’ evaluation of a possible Transaction, in each case by or on\nbehalf of the disclosing party in accordance with the provisions of this\nAgreement. The term “Evaluation Material” also shall include all\nnotes, analyses, compilations, studies, interpretations or other\ndocuments prepared by each party or its Representatives which\ncontain, reflect or are based upon, in whole or in part, the information\nfurnished to such party or its Representatives pursuant hereto which is\nnot available to the general public. Notwithstanding the foregoing, the\nterm “Evaluation Material”\ndoes not include information which (i) is or becomes generally\navailable to the public other than as a result of a breach of this\nAgreement by the receiving party or its Representatives; (ii) was within\nthe receiving party’s possession prior to its being furnished to the\nreceiving party by or on behalf of the disclosing party, provided that to\nthe receiving party’s knowledge, the source of such information is not\nand was not bound at the time of delivery by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, the disclosing party; (iii) is or becomes available to\nthe receiving party on a non-confidential basis from a source that to the\nreceiving party’s knowledge, is not and was not bound at the time such\ninformation becomes available by a confidentiality agreement with, or\nother contractual, legal or fiduciary obligation of confidentiality to, the\ndisclosing party with respect to such information; or (iv) is\nindependently developed by the receiving party without use of\nEvaluation Material.\n2. Use of Evaluation Material. Each party hereby agrees that it and\nits Representatives shall use the other’s Evaluation Material solely for\nthe purpose of evaluating a possible Transaction between the parties.\nEach party and its Representatives will keep the Evaluation Material\nconfidential and will not disclose for any purpose any of the other’s\nEvaluation Material in any manner whatsoever; provided, however,\nthat (i) the receiving party may make any disclosure of such\ninformation to the extent to which the disclosing party gives its prior\nwritten consent and (ii) any of such information\nmay be disclosed to the receiving party’s Representatives who need to\nknow such information for the sole purpose of evaluating a possible\nTransaction between the parties, provided that each such\nRepresentative agrees to treat such information as confidential. Each\nparty agrees to be responsible for any breach of this Agreement by any\nof its Representatives.\n3. Non-Disclosure. In addition, each party agrees that, without the\nprior written consent of the other party, neither the receiving party nor\nits Representatives will disclose to any other person the fact that any\nEvaluation Material has been made available hereunder, that\ndiscussions or negotiations are taking place concerning a possible\nTransaction involving the parties or any of the terms, conditions or\nother facts with respect thereto (including the status thereof); provided\nthat a party may make such disclosure subject to the provisions of\nSection 4 hereof.\n4. Required Disclosure. In the event that a party or its\nRepresentatives are requested or required by applicable law, regulation\nor legal process (including oral questions, interrogatories, requests for\ninformation or documents in legal proceedings, subpoena, civil\ninvestigative demand or other similar process) to disclose any of the\nother party’s Evaluation Material, the party requested or required to\nmake the disclosure shall provide the other party with prompt notice,\nunless notice is prohibited by law, of any such request or requirement\nso that the other party may seek a protective order or other appropriate\nremedy and/or waive compliance with the provisions of this\nAgreement. If, in the absence of a protective order or other remedy or\nthe receipt of a waiver by such other party, the party requested or\nrequired to make the disclosure or any of its\nRepresentatives are nonetheless, under the advice of counsel, legally\nrequired to disclose the other party’s Evaluation Material, the party\nrequested or required to make the disclosure or its Representative may,\nwithout liability hereunder, disclose only that portion of the other\nparty’s Evaluation Material which such counsel advises is legally\nrequired to be disclosed.\n5. Independent Development. The disclosing party understands that\nthe receiving party may currently or in the future be developing\ninformation internally, or receiving information from other parties that\nmay be similar to the disclosing party’s Evaluation Material. Nothing\nin this Agreement will prohibit the receiving party from developing (or\nhaving developed for it) products, concepts, systems or techniques that\nare similar to or compete with the products, concepts, systems or\ntechniques contemplated by or embodied in the disclosing party’s\nEvaluation Material provided that the receiving party does not violate\nany of its obligations under this Agreement. Neither party shall have\nany obligation to limit or restrict the assignment of its employees or\nconsultants as a result of such party having had access to Evaluation\nMaterial. Each party acknowledges that the other party’s personnel\nmay retain certain information in their memories from access to the\nEvaluation Material. The portion(s) of such information, which are\nretained in such a person’s unaided memory without reference to any\ncopies of Evaluation Material in written, electronic or other fixed form,\nshall be known as “Residual Information.” Subject to any copyrights,\nmask work rights or patent rights of the disclosing party, utilization of\nsuch Residual Information by the receiving party will not in itself\nconstitute a breach of this Agreement.\n6. Return of Evaluation Material. At any time upon the request of\neither disclosing party for any reason, each receiving party will\npromptly deliver to the disclosing party or destroy all written\nEvaluation Material furnished to the receiving party or its\nRepresentatives by or on behalf of the disclosing party pursuant hereto\n(including all copies thereof and extracts therefrom). In no event shall\neither party be obligated to disclose or provide the Evaluation Material\nprepared by it or by its Representatives, privileged communications or\nindependently developed materials to the other party. Notwithstanding\nthe return or destruction of the Evaluation Material, each party and its\nRepresentatives, unless otherwise provided herein, will continue to be\nbound by its obligations of confidentiality and other obligations\nhereunder for a period of one (1) year from the date hereof, provided\nthat with respect to trade secrets, the obligation of confidentiality shall\ncontinue for so long as such information is subject to protection as a\ntrade secret by the disclosing party.\n7. No Representation of Accuracy. Each party understands and\nacknowledges that neither party nor any of its Representatives makes\nany representation or warranty, express or implied, as to the accuracy\nor completeness of the Evaluation Material made available by it or to\nit. Each party agrees that neither party nor any of its Representatives\nshall have any liability to the other party or to any of its\nRepresentatives relating to or resulting from the use of or reliance upon\nsuch other party’s Evaluation Material or any errors therein or\nomissions therefrom. With respect to the Evaluation Material, only\nthose representations or warranties which are made in a final definitive\nagreement regarding the Transaction, when, as and if executed, and\nsubject to such limitations and restrictions as may be specified therein,\nwill have any legal effect.\n8. No Further Obligations. Each party understands and agrees that\nno contract or agreement providing for any Transaction involving the\nparties shall be deemed to exist between the parties unless and until a\nfinal definitive agreement has been executed and delivered. Each party\nalso agrees that unless and until a final definitive agreement regarding\na Transaction between the parties has been executed and delivered,\nneither party will be under any legal obligation of any kind whatsoever\nwith respect to such a Transaction by virtue of this Agreement except\nfor the matters specifically agreed to herein. Both parties further\nacknowledge and agree that each party reserves the right, in its sole\ndiscretion, to provide or not provide Evaluation Material to the\nreceiving party under this Agreement, to reject any and all proposals\nmade by the other party or any of its Representatives with regard to a\nTransaction between the parties, and to terminate discussions and\nnegotiations at any time.\n \n9. Injunctive Relief. It is further understood and agreed that money\ndamages may not be a sufficient remedy for any breach of this\nAgreement by either party or any of its Representatives and that the\nnon-breaching party may be entitled to equitable relief, including\ninjunction and specific performance, as a remedy for any such breach.\nSuch remedies shall not be deemed to be the exclusive remedies for a\nbreach of this Agreement but shall be in addition to all other remedies\navailable at law or equity.\n10. Governing Law. This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of California\napplicable to agreements made and to be performed within such State\nwithout regard to choice of law rules.\n11. Term. This Agreement between the parties shall expire on the\nearlier of (a) the execution of a definitive agreement between the\nparties (unless otherwise provided in such agreement) and (b) one year\nfrom the date hereof, provided that the terms of paragraph 6 shall\nsurvive the termination or expiration of this Agreement, and provided\nfurther that such expiration shall not relieve any party for liability for\nbreach of this Agreement occurring before such expiration.\n12. Counterparts. This Agreement may be executed in two or more\ncounterparts, each of which shall be deemed an original, but all of\nwhich shall constitute one and the same instrument.\n13. Miscellaneous.\n(@) Unless the context of this Agreement otherwise clearly requires,\n(i) references to the plural include the singular, and references to the\nsingular include the plural, (ii) references to any gender include the\nother genders, (iii) the words “include,” “includes” and “including” do\nnot limit the preceding terms or words and shall be deemed to be\nfollowed by the words “without limitation,” and (iv) the terms\n“hereof,” “herein,” “hereunder,” “hereto” and similar terms in this\nAgreement refer to this Agreement as a whole and not to any particular\nprovision of this Agreement.\n(b) No failure or delay by a party or any of its Representatives in\nexercising any right, power or privileges under this Agreement shall\noperate as a waiver thereof nor shall any single or partial exercise\nthereof preclude any other or further exercise of any right, power or\nprivilege hereunder.\n(c) In case any provision of this agreement shall be invalid, illegal or\nunenforceable, the validity, legality and enforceability of the remaining\nprovisions of the Agreement shall not in any way be affected or\nimpaired thereby.\n(d) This Agreement contains the entire and sole agreement between\nthe parties concerning the subject matter hereof. This Agreement may\nbe changed only by a written agreement signed by the parties hereto or\ntheir authorized representatives.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this\nAgreement shall become a binding Agreement between Yahoo and the undersigned Counterparty. This Agreement may be executed by a facsimile\nsignature.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.\nYahoo! Inc.\nBy: /s/ Marcus Shen\nName: Marcus Shen\nTitle: Head of Corporate Development\nFacsimile: 408.349.7721\nInterclick, Inc. Inc.\nBy: /s/ Michael Katz\nName: Michael Katz\nTitle: Chief Executive Officer\nFacsimile: 646.558.1223	EX-99.(D)(4) 13 d250779dex99d4.htm MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(4)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis\nMutual Nondisclosure Agreement (this "Agreement") is entered into this 2nd day of July, 2011, by and between Yahoo! Inc., a Delaware\ncorporation ("Yahoo") and the undersigned entity ("Counterparty"). Yahoo and Counterparty hereby agree as follows:\nIn connection with our mutual consideration of a possible\ndoes not include information which (i) is or becomes generally\nstrategic transaction (a "Transaction") Yahoo and Counterparty expect\navailable to the public other than as a result of a breach of this\nto make available to one another certain information concerning their\nAgreement by the receiving party or its Representatives; (ii) was within\nrespective businesses including, but not limited to, technology,\nthe receiving party's possession prior to its being furnished to the\nfinancial forecasts, financial condition, operations, assets and liabilities\nreceiving party by or on behalf of the disclosing party, provided that to\nand business strategies. As a condition to such information being\nthe receiving party's knowledge, the source of such information is not\nfurnished to each party and its subsidiaries, directors, officers,\nand was not bound at the time of delivery by a confidentiality\nemployees, agents or advisors (including, attorneys, accountants,\nagreement with, or other contractual, legal or fiduciary obligation of\nconsultants, bankers and financial advisors) (collectively,\nconfidentiality to, the disclosing party; (iii) is or becomes available to\n"Representatives"), each party agrees to treat all Evaluation Material in\nthe receiving party on a non-confidential basis from a source that to the\naccordance with the provisions of this Agreement, and to take or\nreceiving party's knowledge, is not and was not bound at the time such\nabstain from taking certain other actions hereinafter set forth.\ninformation becomes available by a confidentiality agreement with, or\nother contractual, legal or fiduciary obligation of confidentiality to, the\n1. Evaluation Material. The term "Evaluation Material" shall be\ndisclosing party with respect to such information; or (iv) is\ndeemed to include all information concerning the other party (whether\nindependently developed by the receiving party without use of\nprepared by the disclosing party or its Representatives) which is\nEvaluation Material.\nfurnished to a party or to its Representatives in connection with the\nparties' evaluation of a possible Transaction, in each case by or on\n2. Use of Evaluation Material. Each party hereby agrees that it and\nbehalf of the disclosing party in accordance with the provisions of this\nits Representatives shall use the other's Evaluation Material solely for\nAgreement. The term "Evaluation Material" also shall include all\nthe purpose of evaluating a possible Transaction between the parties.\nnotes, analyses, compilations, studies, interpretations or other\nEach party and its Representatives will keep the Evaluation Material\ndocuments prepared by each party or its Representatives which\nconfidential and will not disclose for any purpose any of the other's\ncontain, reflect or are based upon, in whole or in part, the information\nEvaluation Material in any manner whatsoever; provided, however,\nfurnished to such party or its Representatives pursuant hereto which is\nthat (i) the receiving party may make any disclosure of such\nnot available to the general public. Notwithstanding the foregoing, the\ninformation to the extent to which the disclosing party gives its prior\nterm "Evaluation Material"\nwritten consent and (ii) any of such information\n1\nmay be disclosed to the receiving party's Representatives who need to\nRepresentatives are nonetheless, under the advice of counsel, legally\nknow such information for the sole purpose of evaluating a possible\nrequired to disclose the other party's Evaluation Material, the party\nTransaction between the parties, provided that each such\nrequested or required to make the disclosure or its Representative may,\nRepresentative agrees to treat such information as confidential. Each\nwithout liability hereunder, disclose only that portion of the other\nparty agrees to be responsible for any breach of this Agreement by any\nparty's Evaluation Material which such counsel advises is legally\nof its Representatives.\nrequired to be disclosed.\n3. Non-Disclosure In addition, each party agrees that, without the\n5. Independent Development. The disclosing party understands that\nprior written consent of the other party, neither the receiving party nor\nthe receiving party may currently or in the future be developing\nits Representatives will disclose to any other person the fact that any\ninformation internally, or receiving information from other parties that\nEvaluation Material has been made available hereunder, that\nmay be similar to the disclosing party's Evaluation Material. Nothing\ndiscussions or negotiations are taking place concerning a possible\nin this Agreement will prohibit the receiving party from developing (or\nTransaction involving the parties or any of the terms, conditions or\nhaving developed for it) products, concepts, systems or techniques that\nother facts with respect thereto (including the status thereof); provided\nare similar to or compete with the products, concepts, systems or\nthat a party may make such disclosure subject to the provisions of\ntechniques contemplated by or embodied in the disclosing party's\nSection 4 hereof.\nEvaluation Material provided that the receiving party does not violate\nany of its obligations under this Agreement. Neither party shall have\n4. Required Disclosure. In the event that a party or its\nany obligation to limit or restrict the assignment of its employees or\nRepresentatives are requested or required by applicable law, regulation\nconsultants as a result of such party having had access to Evaluation\nor legal process (including oral questions, interrogatories, requests for\nMaterial. Each party acknowledges that the other party's personnel\ninformation or documents in legal proceedings, subpoena, civil\nmay retain certain information in their memories from access to the\ninvestigative demand or other similar process) to disclose any of the\nEvaluation Material. The portion(s) of such information, which are\nother party's Evaluation Material, the party requested or required to\nretained in such a person's unaided memory without reference to any\nmake the disclosure shall provide the other party with prompt notice,\ncopies of Evaluation Material in written, electronic or other fixed form,\nunless notice is prohibited by law, of any such request or requirement\nshall be known as "Residual Information." Subject to any copyrights,\nSO that the other party may seek a protective order or other appropriate\nmask work rights or patent rights of the disclosing party, utilization of\nremedy and/or waive compliance with the provisions of this\nsuch Residual Information by the receiving party will not in itself\nAgreement. If, in the absence of a protective order or other remedy or\nconstitute a breach of this Agreement.\nthe receipt of a waiver by such other party, the party requested or\nrequired to make the disclosure or any of its\n2\n6. Return of Evaluation Material. At any time upon the request of\n8.\nNo Further Obligations. Each party understands and agrees that\neither disclosing party for any reason, each receiving party will\nno contract or agreement providing for any Transaction involving the\npromptly deliver to the disclosing party or destroy all written\nparties shall be deemed to exist between the parties unless and until a\nEvaluation Material furnished to the receiving party or its\nfinal definitive agreement has been executed and delivered. Each party\nRepresentatives by or on behalf of the disclosing party pursuant hereto\nalso agrees that unless and until a final definitive agreement regarding\n(including all copies thereof and extracts therefrom). In no event shall\na Transaction between the parties has been executed and delivered,\neither party be obligated to disclose or provide the Evaluation Material\nneither party will be under any legal obligation of any kind whatsoever\nprepared by it or by its Representatives, privileged communications or\nwith respect to such a Transaction by virtue of this Agreement except\nindependently developed materials to the other party. Notwithstanding\nfor the matters specifically agreed to herein. Both parties further\nthe return or destruction of the Evaluation Material, each party and its\nacknowledge and agree that each party reserves the right, in its sole\nRepresentatives, unless otherwise provided herein, will continue to be\ndiscretion, to provide or not provide Evaluation Material to the\nbound by its obligations of confidentiality and other obligations\nreceiving party under this Agreement, to reject any and all proposals\nhereunder for a period of one (1) year from the date hereof, provided\nmade by the other party or any of its Representatives with regard to a\nthat with respect to trade secrets, the obligation of confidentiality shall\nTransaction between the parties, and to terminate discussions and\ncontinue for so long as such information is subject to protection as a\nnegotiations at any time.\ntrade secret by the disclosing party.\n9. Injunctive Relief. It is further understood and agreed that money\n7. No Representation of Accuracy.. Each party understands and\ndamages may not be a sufficient remedy for any breach of this\nacknowledges that neither party nor any of its Representatives makes\nAgreement by either party or any of its Representatives and that the\nany representation or warranty, express or implied, as to the accuracy\nnon-breaching party may be entitled to equitable relief, including\nor completeness of the Evaluation Material made available by it or to\ninjunction and specific performance, as a remedy for any such breach.\nit. Each party agrees that neither party nor any of its Representatives\nSuch remedies shall not be deemed to be the exclusive remedies for a\nshall have any liability to the other party or to any of its\nbreach of this Agreement but shall be in addition to all other remedies\nRepresentatives relating to or resulting from the use of or reliance upon\navailable at law or equity.\nsuch other party's Evaluation Material or any errors therein or\nomissions therefrom. With respect to the Evaluation Material, only\n10. Governing Law. This Agreement shall be governed by and\nthose representations or warranties which are made in a final definitive\nconstrued in accordance with the laws of the State of California\nagreement regarding the Transaction, when, as and if executed, and\napplicable to agreements made and to be performed within such State\nsubject to such limitations and restrictions as may be specified therein,\nwithout regard to choice of law rules.\nwill have any legal effect.\n3\n11. Term. This Agreement between the parties shall expire on the\n(c) In case any provision of this agreement shall be invalid, illegal or\nearlier of (a) the execution of a definitive agreement between the\nunenforceable, the validity, legality and enforceability of the remaining\nparties (unless otherwise provided in such agreement) and (b) one year\nprovisions of the Agreement shall not in any way be affected or\nfrom the date hereof, provided that the terms of paragraph 6 shall\nimpaired thereby.\nsurvive the termination or expiration of this Agreement, and provided\nfurther that such expiration shall not relieve any party for liability for\n(d) This Agreement contains the entire and sole agreement between\nbreach of this Agreement occurring before such expiration.\nthe parties concerning the subject matter hereof. This Agreement may\nbe changed only by a written agreement signed by the parties hereto or\n12. Counterparts. This Agreement may be executed in two or more\ntheir authorized representatives.\ncounterparts, each of which shall be deemed an original, but all of\nwhich shall constitute one and the same instrument.\n13. Miscellaneous.\n(a) Unless the context of this Agreement otherwise clearly requires,\n(i) references to the plural include the singular, and references to the\nsingular include the plural, (ii) references to any gender include the\nother genders, (iii) the words "include," "includes" and "including" do\nnot limit the preceding terms or words and shall be deemed to be\nfollowed by the words "without limitation," and (iv) the terms\n"hereof," "herein," "hereunder," "hereto" and similar terms in this\nAgreement refer to this Agreement as a whole and not to any particular\nprovision of this Agreement.\n(b) No failure or delay by a party or any of its Representatives in\nexercising any right, power or privileges under this Agreement shall\noperate as a waiver thereof nor shall any single or partial exercise\nthereof preclude any other or further exercise of any right, power or\nprivilege hereunder.\n4\nPlease confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this\nAgreement shall become a binding Agreement between Yahoo and the undersigned Counterparty. This Agreement may be executed by a facsimile\nsignature.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.\nYahoo! Inc.\nBy: /s/ Marcus Shen\nName:\nMarcus Shen\nTitle:\nHead of Corporate Development\nFacsimile: 408.349.7721\nInterclick, Inc Inc.\nBy: /s/ Michae Katz\nName:\nMichael Katz\nTitle:\nChief Executive Officer\nFacsimile: 646.558.1223\n5	EX-99.(D)(4) 13 d250779dex99d4.htm MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(4)\nMUTUAL NONDISCLOSURE AGREEMENT\nThis Mutual Nondisclosure Agreement (this “Agreement”) is entered into this 2nd day of July, 2011, by and between Yahoo! Inc., a Delaware\ncorporation (“Yahoo”) and the undersigned entity (“Counterparty”). Yahoo and Counterparty hereby agree as follows:\n1\nIn connection with our mutual consideration of a possible\nstrategic transaction (a “Transaction”) Yahoo and Counterparty expect\nto make available to one another certain information concerning their\nrespective businesses including, but not limited to, technology,\nfinancial forecasts, financial condition, operations, assets and liabilities\nand business strategies. As a condition to such information being\nfurnished to each party and its subsidiaries, directors, officers,\nemployees, agents or advisors (including, attorneys, accountants,\nconsultants, bankers and financial advisors) (collectively,\n“Representatives”), each party agrees to treat all Evaluation Material in\naccordance with the provisions of this Agreement, and to take or\nabstain from taking certain other actions hereinafter set forth.\n1. Evaluation Material. The term “Evaluation Material” shall be\ndeemed to include all information concerning the other party (whether\nprepared by the disclosing party or its Representatives) which is\nfurnished to a party or to its Representatives in connection with the\nparties’ evaluation of a possible Transaction, in each case by or on\nbehalf of the disclosing party in accordance with the provisions of this\nAgreement. The term “Evaluation Material” also shall include all\nnotes, analyses, compilations, studies, interpretations or other\ndocuments prepared by each party or its Representatives which\ncontain, reflect or are based upon, in whole or in part, the information\nfurnished to such party or its Representatives pursuant hereto which is\nnot available to the general public. Notwithstanding the foregoing, the\nterm “Evaluation Material”\ndoes not include information which (i) is or becomes generally\navailable to the public other than as a result of a breach of this\nAgreement by the receiving party or its Representatives; (ii) was within\nthe receiving party’s possession prior to its being furnished to the\nreceiving party by or on behalf of the disclosing party, provided that to\nthe receiving party’s knowledge, the source of such information is not\nand was not bound at the time of delivery by a confidentiality\nagreement with, or other contractual, legal or fiduciary obligation of\nconfidentiality to, the disclosing party; (iii) is or becomes available to\nthe receiving party on a non-confidential basis from a source that to the\nreceiving party’s knowledge, is not and was not bound at the time such\ninformation becomes available by a confidentiality agreement with, or\nother contractual, legal or fiduciary obligation of confidentiality to, the\ndisclosing party with respect to such information; or (iv) is\nindependently developed by the receiving party without use of\nEvaluation Material.\n2. Use of Evaluation Material. Each party hereby agrees that it and\nits Representatives shall use the other’s Evaluation Material solely for\nthe purpose of evaluating a possible Transaction between the parties.\nEach party and its Representatives will keep the Evaluation Material\nconfidential and will not disclose for any purpose any of the other’s\nEvaluation Material in any manner whatsoever; provided, however,\nthat (i) the receiving party may make any disclosure of such\ninformation to the extent to which the disclosing party gives its prior\nwritten consent and (ii) any of such information\n2\nmay be disclosed to the receiving party’s Representatives who need to\nknow such information for the sole purpose of evaluating a possible\nTransaction between the parties, provided that each such\nRepresentative agrees to treat such information as confidential. Each\nparty agrees to be responsible for any breach of this Agreement by any\nof its Representatives.\n3. Non-Disclosure. In addition, each party agrees that, without the\nprior written consent of the other party, neither the receiving party nor\nits Representatives will disclose to any other person the fact that any\nEvaluation Material has been made available hereunder, that\ndiscussions or negotiations are taking place concerning a possible\nTransaction involving the parties or any of the terms, conditions or\nother facts with respect thereto (including the status thereof); provided\nthat a party may make such disclosure subject to the provisions of\nSection 4 hereof.\n4. Required Disclosure. In the event that a party or its\nRepresentatives are requested or required by applicable law, regulation\nor legal process (including oral questions, interrogatories, requests for\ninformation or documents in legal proceedings, subpoena, civil\ninvestigative demand or other similar process) to disclose any of the\nother party’s Evaluation Material, the party requested or required to\nmake the disclosure shall provide the other party with prompt notice,\nunless notice is prohibited by law, of any such request or requirement\nso that the other party may seek a protective order or other appropriate\nremedy and/or waive compliance with the provisions of this\nAgreement. If, in the absence of a protective order or other remedy or\nthe receipt of a waiver by such other party, the party requested or\nrequired to make the disclosure or any of its\nRepresentatives are nonetheless, under the advice of counsel, legally\nrequired to disclose the other party’s Evaluation Material, the party\nrequested or required to make the disclosure or its Representative may,\nwithout liability hereunder, disclose only that portion of the other\nparty’s Evaluation Material which such counsel advises is legally\nrequired to be disclosed.\n5. Independent Development. The disclosing party understands that\nthe receiving party may currently or in the future be developing\ninformation internally, or receiving information from other parties that\nmay be similar to the disclosing party’s Evaluation Material. Nothing\nin this Agreement will prohibit the receiving party from developing (or\nhaving developed for it) products, concepts, systems or techniques that\nare similar to or compete with the products, concepts, systems or\ntechniques contemplated by or embodied in the disclosing party’s\nEvaluation Material provided that the receiving party does not violate\nany of its obligations under this Agreement. Neither party shall have\nany obligation to limit or restrict the assignment of its employees or\nconsultants as a result of such party having had access to Evaluation\nMaterial. Each party acknowledges that the other party’s personnel\nmay retain certain information in their memories from access to the\nEvaluation Material. The portion(s) of such information, which are\nretained in such a person’s unaided memory without reference to any\ncopies of Evaluation Material in written, electronic or other fixed form,\nshall be known as “Residual Information.” Subject to any copyrights,\nmask work rights or patent rights of the disclosing party, utilization of\nsuch Residual Information by the receiving party will not in itself\nconstitute a breach of this Agreement.\n3\n6. Return of Evaluation Material. At any time upon the request of\neither disclosing party for any reason, each receiving party will\npromptly deliver to the disclosing party or destroy all written\nEvaluation Material furnished to the receiving party or its\nRepresentatives by or on behalf of the disclosing party pursuant hereto\n(including all copies thereof and extracts therefrom). In no event shall\neither party be obligated to disclose or provide the Evaluation Material\nprepared by it or by its Representatives, privileged communications or\nindependently developed materials to the other party. Notwithstanding\nthe return or destruction of the Evaluation Material, each party and its\nRepresentatives, unless otherwise provided herein, will continue to be\nbound by its obligations of confidentiality and other obligations\nhereunder for a period of one (1) year from the date hereof, provided\nthat with respect to trade secrets, the obligation of confidentiality shall\ncontinue for so long as such information is subject to protection as a\ntrade secret by the disclosing party.\n7. No Representation of Accuracy. Each party understands and\nacknowledges that neither party nor any of its Representatives makes\nany representation or warranty, express or implied, as to the accuracy\nor completeness of the Evaluation Material made available by it or to\nit. Each party agrees that neither party nor any of its Representatives\nshall have any liability to the other party or to any of its\nRepresentatives relating to or resulting from the use of or reliance upon\nsuch other party’s Evaluation Material or any errors therein or\nomissions therefrom. With respect to the Evaluation Material, only\nthose representations or warranties which are made in a final definitive\nagreement regarding the Transaction, when, as and if executed, and\nsubject to such limitations and restrictions as may be specified therein,\nwill have any legal effect.\n8. No Further Obligations. Each party understands and agrees that\nno contract or agreement providing for any Transaction involving the\nparties shall be deemed to exist between the parties unless and until a\nfinal definitive agreement has been executed and delivered. Each party\nalso agrees that unless and until a final definitive agreement regarding\na Transaction between the parties has been executed and delivered,\nneither party will be under any legal obligation of any kind whatsoever\nwith respect to such a Transaction by virtue of this Agreement except\nfor the matters specifically agreed to herein. Both parties further\nacknowledge and agree that each party reserves the right, in its sole\ndiscretion, to provide or not provide Evaluation Material to the\nreceiving party under this Agreement, to reject any and all proposals\nmade by the other party or any of its Representatives with regard to a\nTransaction between the parties, and to terminate discussions and\nnegotiations at any time.\n9. Injunctive Relief. It is further understood and agreed that money\ndamages may not be a sufficient remedy for any breach of this\nAgreement by either party or any of its Representatives and that the\nnon-breaching party may be entitled to equitable relief, including\ninjunction and specific performance, as a remedy for any such breach.\nSuch remedies shall not be deemed to be the exclusive remedies for a\nbreach of this Agreement but shall be in addition to all other remedies\navailable at law or equity.\n10. Governing Law. This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of California\napplicable to agreements made and to be performed within such State\nwithout regard to choice of law rules.\n4\n11. Term. This Agreement between the parties shall expire on the\nearlier of (a) the execution of a definitive agreement between the\nparties (unless otherwise provided in such agreement) and (b) one year\nfrom the date hereof, provided that the terms of paragraph 6 shall\nsurvive the termination or expiration of this Agreement, and provided\nfurther that such expiration shall not relieve any party for liability for\nbreach of this Agreement occurring before such expiration.\n12. Counterparts. This Agreement may be executed in two or more\ncounterparts, each of which shall be deemed an original, but all of\nwhich shall constitute one and the same instrument.\n13. Miscellaneous.\n(a) Unless the context of this Agreement otherwise clearly requires,\n(i) references to the plural include the singular, and references to the\nsingular include the plural, (ii) references to any gender include the\nother genders, (iii) the words “include,” “includes” and “including” do\nnot limit the preceding terms or words and shall be deemed to be\nfollowed by the words “without limitation,” and (iv) the terms\n“hereof,” “herein,” “hereunder,” “hereto” and similar terms in this\nAgreement refer to this Agreement as a whole and not to any particular\nprovision of this Agreement.\n(b) No failure or delay by a party or any of its Representatives in\nexercising any right, power or privileges under this Agreement shall\noperate as a waiver thereof nor shall any single or partial exercise\nthereof preclude any other or further exercise of any right, power or\nprivilege hereunder.\n(c) In case any provision of this agreement shall be invalid, illegal or\nunenforceable, the validity, legality and enforceability of the remaining\nprovisions of the Agreement shall not in any way be affected or\nimpaired thereby.\n(d) This Agreement contains the entire and sole agreement between\nthe parties concerning the subject matter hereof. This Agreement may\nbe changed only by a written agreement signed by the parties hereto or\ntheir authorized representatives.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this\nAgreement shall become a binding Agreement between Yahoo and the undersigned Counterparty. This Agreement may be executed by a facsimile\nsignature.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.\nYahoo! Inc.\nBy: /s/ Marcus Shen\nName:\nMarcus Shen\nTitle:\nHead of Corporate Development\nFacsimile: 408.349.7721\nInterclick, Inc. Inc.\nBy: /s/ Michael Katz\nName:\nMichael Katz\nTitle:\nChief Executive Officer\nFacsimile: 646.558.1223\n5
+ea3014a2f8576fcb8159f0c0b2e25dc3.pdf	effective_date jurisdiction party term	1.\n2.\nExhibit A\nCONFIDENTIALITY/ NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”) is made and entered into as of the\ndate of the latter of the two signatures appearing below between Social Reality, Inc. (“Employer”) and Dustin Suchter\n(“Executive”).\nPurpose. Employer wishes to employ the Executive pursuant, during which employment the Employer\nmay disclose to Executive certain confidential technical, financial, and business information – including but not limited\nto information relating to advertising techniques, historical prices, Internet-based advertising, marketing practices,\nclients, prospective clients, proprietary software, trade secrets, and other intellectual property – which Employer desires\nExecutive to treat as confidential during and after the termination of Executive’s employment.\nDefinition.\n"Confidential Information" means any information, documents, and/or tangible things\ndisclosed to Executive by Employer, either directly or indirectly in writing, orally or by inspection of tangible objects,\nincluding without limitation the Employer's business and operating plans, software, and competitors. Without limiting\nthe generality of the foregoing, Confidential Information shall include trade secrets as “trade secrets” are defined under\nthe version of the Uniform Trade Secrets Act adopted and in effect in the State of California, as amended from time to\ntime during the term of this Agreement, the provisions of which defining “trade secrets” are incorporated herein by\nreference. Confidential Information shall also include but not be limited to all other discoveries, developments, designs,\nimprovements, inventions, formulas, software programs, business plans, processes, username and password information,\ntechniques, know-how, negative know-how, data, research, techniques, technical data, client and customer and supplier\nlists, financial projections, current and prospective financing arrangements, marketing methods, plans, and related data,\ncustomer lists, buying habits and practices, pricing structures, and payment and credit histories, costs of sales and terms\nof trade, the identity and business practices of vendors, suppliers, financiers, bankers, agents, or brokers, the identity,\nskill sets, and job duties of vendors, employees, independent contractors, or Executives, terms of employment for\nemployees, agents, and representatives, including employee stock option plans and participation, written records and\ndata used in developing and operating its business, other confidential information of, about, or concerning Employer ’s\nbusiness and affairs, the financing and operations of its business, and its relationships with its employees, agents,\ncustomers, vendors, or representatives, and any modifications or enhancements of any of the foregoing, and all Employer\nprogram, pricing, marketing, sales, business contract, or other financial or business information. Confidential\nInformation shall not, however, include any information which Executive can establish: (i) was publicly known and\nmade generally available in the public domain prior to the time of disclosure to Executive by Employer; (ii) becomes\npublicly known and made generally available after disclosure to Executive by Employer through no action or inaction of\nExecutive; or (iii) is in the possession of Executive, without confidentiality restrictions, at the time of disclosure by the\nEmployer as shown by Executive's files and records immediately prior to the time of disclosure.\n3.\n4.\n5.\nOwnership.\n6.\n7.\nIt shall be presumed that any information in the possession of Executive that has been disclosed to Executive by\nEmployer, or any agent or representative of Employer, is not within any of the exceptions to the definition of\nConfidential Information set forth in the previous sentence, and the burden is on Executive to prove otherwise by written\nrecords and documentation.\nNon-use and Non-disclosure. Executive agrees not to use or disclose any Confidential Information for\nany purpose except as part of Executive’s performance of his job duties during his employment by the Employer.\nExecutive shall not reverse-engineer, disassemble or decompile any prototypes, software or other tangible objects,\nwhich embody Employer's Confidential Information and which are provided to Executive hereunder. The Executive\nagrees that all Confidential Information shall not be used by the Executive in any way adverse to the interests of the\nEmployer or any of its subsidiaries during the Term of this Agreement, and shall not be used by the Executive in any\nway whatsoever following the Term of this Agreement. The Executive will not, during the Term or thereafter, use,\nreference, paraphrase, deliver, reproduce, or in any way allow such information, documents, and/or things to be used,\ndelivered, reproduced, or referenced, by any third party without specific prior written request to and the written\nauthorization from a duly authorized representative of the Employer. During and after termination of the Executive’s\nemployment with the Employer, the Executive will not use, publish, release, reproduce, or otherwise make available to\nany third party any information, document, or thing containing or describing any trade secret or other Confidential\nInformation of the Employer without prior specific written authorization of the Employer.\nMaintenance of Confidentiality. Executive agrees that he shall take all reasonable measures to protect\nthe secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the\nforegoing, Executive shall take at least those measures that Executive takes to protect his own most highly confidential\ninformation. Executive shall not make any copies of Confidential Information, except as previously approved in writing\nby the Employer. Executive shall reproduce the Employer's proprietary rights and confidentiality notices on any such\napproved copies, in the same manner in which such notices were set forth in or on the original. Executive shall\nimmediately notify the Employer in the event of any unauthorized use or disclosure of the Confidential Information.\nAll documentary Confidential Information, and all copies and summaries or synopses\nthereof, however made or obtained, and whether in tangible or electronic medium, are and shall remain the exclusive\nproperty of the Employer.\nReturn of Materials. All documents and other tangible objects containing or representing Confidential\nInformation and all copies thereof which are in the possession of Executive shall be and remain the property of\nEmployer and shall be promptly returned to Employer upon Employer's request.\nNo License. Nothing in this Agreement is intended to grant any rights to Executive under any patent,\nmask work right, or copyright of Employer, nor shall this Agreement grant Executive any rights in or to Confidential\nInformation except as expressly set forth herein.\n-2-\n8.\n9.\nTerm. This Agreement shall survive until such time as all Confidential Information disclosed hereunder\nbecomes publicly known and made generally available through no action or inaction of Executive.\nRemedies. Executive agrees that any violation or threatened violation of this Agreement will cause\nirreparable injury to the Employer, entitling Employer to seek injunctive relief in addition to all legal remedies.\nAGREED AND ACCEPTED:\nDUSTIN SUCHTER (“Executive”):\nDate:\nSOCIAL REALITY, INC. (“Employer”):\nBy:\nName: Chris Miglino\nTitle: Chief Executive Officer\nDate:\n-3-	Exhibit A\nCONFIDENTIALITY/ NON-DISCIL.OSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”) is made and entered into as of the\ndate of the latter of the two signatures appearing below between Social Reality, Inc. (“Employer”) and Dustin Suchter\n(“Executive”).\n1. Purpose. Employer wishes to employ the Executive pursuant, during which employment the Employer\nmay disclose to Executive certain confidential technical, financial, and business information — including but not limited\nto information relating to advertising techniques, historical prices, Internet-based advertising, marketing practices,\nclients, prospective clients, proprietary software, trade secrets, and other intellectual property — which Employer desires\nExecutive to treat as confidential during and after the termination of Executive’s employment.\n2. Definition. "Confidential Information" means any information, documents, and/or tangible things\ndisclosed to Executive by Employer, either directly or indirectly in writing, orally or by inspection of tangible objects,\nincluding without limitation the Employer's business and operating plans, software, and competitors. Without limiting\nthe generality of the foregoing, Confidential Information shall include trade secrets as “trade secrets” are defined under\nthe version of the Uniform Trade Secrets Act adopted and in effect in the State of California, as amended from time to\ntime during the term of this Agreement, the provisions of which defining “trade secrets” are incorporated herein by\nreference. Confidential Information shall also include but not be limited to all other discoveries, developments, designs,\nimprovements, inventions, formulas, software programs, business plans, processes, username and password information,\ntechniques, know-how, negative know-how, data, research, techniques, technical data, client and customer and supplier\nlists, financial projections, current and prospective financing arrangements, marketing methods, plans, and related data,\ncustomer lists, buying habits and practices, pricing structures, and payment and credit histories, costs of sales and terms\nof trade, the identity and business practices of vendors, suppliers, financiers, bankers, agents, or brokers, the identity,\nskill sets, and job duties of vendors, employees, independent contractors, or Executives, terms of employment for\nemployees, agents, and representatives, including employee stock option plans and participation, written records and\ndata used in developing and operating its business, other confidential information of, about, or concerning Employer’s\nbusiness and affairs, the financing and operations of its business, and its relationships with its employees, agents,\ncustomers, vendors, or representatives, and any modifications or enhancements of any of the foregoing, and all Employer\nprogram, pricing, marketing, sales, business contract, or other financial or business information. Confidential\nInformation shall not, however, include any information which Executive can establish: (i) was publicly known and\nmade generally available in the public domain prior to the time of disclosure to Executive by Employer; (ii) becomes\npublicly known and made generally available after disclosure to Executive by Employer through no action or inaction of\nExecutive; or (iii) is in the possession of Executive, without confidentiality restrictions, at the time of disclosure by the\nEmployer as shown by Executive's files and records immediately prior to the time of disclosure.\nIt shall be presumed that any information in the possession of Executive that has been disclosed to Executive by\nEmployer, or any agent or representative of Employer, is not within any of the exceptions to the definition of\nConfidential Information set forth in the previous sentence, and the burden is on Executive to prove otherwise by written\nrecords and documentation.\n3. Non-use and Non-disclosure. Executive agrees not to use or disclose any Confidential Information for\nany purpose except as part of Executive’s performance of his job duties during his employment by the Employer.\nExecutive shall not reverse-engineer, disassemble or decompile any prototypes, software or other tangible objects,\nwhich embody Employer's Confidential Information and which are provided to Executive hereunder. The Executive\nagrees that all Confidential Information shall not be used by the Executive in any way adverse to the interests of the\nEmployer or any of its subsidiaries during the Term of this Agreement, and shall not be used by the Executive in any\nway whatsoever following the Term of this Agreement. The Executive will not, during the Term or thereafter, use,\nreference, paraphrase, deliver, reproduce, or in any way allow such information, documents, and/or things to be used,\ndelivered, reproduced, or referenced, by any third party without specific prior written request to and the written\nauthorization from a duly authorized representative of the Employer. During and after termination of the Executive’s\nemployment with the Employer, the Executive will not use, publish, release, reproduce, or otherwise make available to\nany third party any information, document, or thing containing or describing any trade secret or other Confidential\nInformation of the Employer without prior specific written authorization of the Employer.\n4. Maintenance of Confidentiality. Executive agrees that he shall take all reasonable measures to protect\nthe secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the\nforegoing, Executive shall take at least those measures that Executive takes to protect his own most highly confidential\ninformation. Executive shall not make any copies of Confidential Information, except as previously approved in writing\nby the Employer. Executive shall reproduce the Employer's proprietary rights and confidentiality notices on any such\napproved copies, in the same manner in which such notices were set forth in or on the original. Executive shall\nimmediately notify the Employer in the event of any unauthorized use or disclosure of the Confidential Information.\n5. Ownership. All documentary Confidential Information, and all copies and summaries or synopses\nthereof, however made or obtained, and whether in tangible or electronic medium, are and shall remain the exclusive\nproperty of the Employer.\n6. Return of Materials. All documents and other tangible objects containing or representing Confidential\nInformation and all copies thereof which are in the possession of Executive shall be and remain the property of\nEmployer and shall be promptly returned to Employer upon Employer's request.\n7. No License. Nothing in this Agreement is intended to grant any rights to Executive under any patent,\nmask work right, or copyright of Employer, nor shall this Agreement grant Executive any rights in or to Confidential\nInformation except as expressly set forth herein.\n-\n8. Term. This Agreement shall survive until such time as all Confidential Information disclosed hereunder\nbecomes publicly known and made generally available through no action or inaction of Executive.\n9. Remedies. Executive agrees that any violation or threatened violation of this Agreement will cause\nirreparable injury to the Employer, entitling Employer to seek injunctive relief in addition to all legal remedies.\nAGREED AND ACCEPTED:\nDUSTIN SUCHTER (“Executive”):\nDate:\nSOCIAL REALITY, INC. (“Employer”):\nBy:\nName: Chris Miglino\nTitle:  Chief Executive Officer\nDate:	Exhibit A\nCONFIDENTIALITY ENTIALITY/NON-DISCLOSURI AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this "Agreement") is made and entered into as of the\ndate of the latter of the two signatures appearing below between Social Reality, Inc. ("Employer") and Dustin Suchter\n("Executive").\n1.\nPurpose. Employer wishes to employ the Executive pursuant, during which employment the Employer\nmay disclose to Executive certain confidential technical, financial, and business information including but not limited\nto information relating to advertising techniques, historical prices, Internet-based advertising, marketing practices,\nclients, prospective clients, proprietary software, trade secrets, and other intellectual property which Employer desires\nExecutive to treat as confidential during and after the termination of Executive's employment.\n2. Definition. "Confidential Information" means any information, documents, and/or tangible things\ndisclosed to Executive by Employer, either directly or indirectly in writing, orally or by inspection of tangible objects,\nincluding without limitation the Employer's business and operating plans, software, and competitors. Without limiting\nthe generality of the foregoing, Confidential Information shall include trade secrets as "trade secrets" are defined under\nthe version of the Uniform Trade Secrets Act adopted and in effect in the State of California, as amended from time to\ntime during the term of this Agreement, the provisions of which defining "trade secrets" are incorporated herein by\nreference. Confidential Information shall also include but not be limited to all other discoveries, developments, designs,\nimprovements,\ninventions,\nformulas,\nsoftware\nprograms,\nbusiness\nplans,\nprocesses,\nusername\nand\npassword\ninformation,\ntechniques, know-how, negative know-how, data, research, techniques, technical data, client and customer and supplier\nlists, financial projections, current and prospective financing arrangements, marketing methods, plans, and related data,\ncustomer lists, buying habits and practices, pricing structures, and payment and credit histories, costs of sales and terms\nof trade, the identity and business practices of vendors, suppliers, financiers, bankers, agents, or brokers, the identity,\nskill\nsets,\nand\njob\nduties\nof\nvendors,\nemployees,\nindependent\ncontractors,\nor\nExecutives,\nterms\nof\nemployment\nfor\nemployees, agents, and representatives, including employee stock option plans and participation, written records and\ndata used in developing and operating its business, other confidential information of, about, or concerning Employer's\nbusiness and affairs, the financing and operations of its business, and its relationships with its employees, agents,\ncustomers, vendors, or representatives, and any modifications or enhancements of any of the foregoing, and all Employer\nprogram, pricing, marketing, sales, business contract, or other financial or business information. Confidential\nInformation shall not, however, include any information which Executive can establish: (i) was publicly known and\nmade generally available in the public domain prior to the time of disclosure to Executive by Employer; (ii) becomes\npublicly known and made generally available after disclosure to Executive by Employer through no action or inaction of\nExecutive; or (iii) is in the possession of Executive, without confidentiality restrictions, at the time of disclosure by the\nEmployer as shown by Executive's files and records immediately prior to the time of disclosure.\nIt shall be presumed that any information in the possession of Executive that has been disclosed to Executive by\nEmployer,\nor\nany\nagent\nor\nrepresentative\nof\nEmployer,\nis\nnot\nwithin\nany\nof\nthe\nexceptions\nto\nthe\ndefinition\nof\nConfidential Information set forth in the previous sentence, and the burden is on Executive to prove otherwise by written\nrecords and documentation.\n3.\nNon-use and Non-disclosure. Executive agrees not to use or disclose any Confidential Information for\nany purpose except as part of Executive's performance of his job duties during his employment by the Employer.\nExecutive shall not reverse-engineer, disassemble or decompile any prototypes, software or other tangible objects,\nwhich embody Employer's Confidential Information and which are provided to Executive hereunder. The Executive\nagrees that all Confidential Information shall not be used by the Executive in any way adverse to the interests of the\nEmployer or any of its subsidiaries during the Term of this Agreement, and shall not be used by the Executive in any\nway whatsoever following the Term of this Agreement. The Executive will not, during the Term or thereafter, use,\nreference, paraphrase, deliver, reproduce, or in any way allow such information, documents, and/or things to be used,\ndelivered, reproduced, or referenced, by any third party without specific prior written request to and the written\nauthorization\nfrom\na\nduly\nauthorized\nrepresentative\nof\nthe\nEmployer.\nDuring\nand\nafter\ntermination\nof\nthe\nExecutive's\nemployment with the Employer, the Executive will not use, publish, release, reproduce, or otherwise make available to\nany third party any information, document, or thing containing or describing any trade secret or other Confidential\nInformation of the Employer without prior specific written authorization of the Employer.\n4.\nMaintenance of Confidentiality. Executive agrees that he shall take all reasonable measures to protect\nthe secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the\nforegoing, Executive shall take at least those measures that Executive takes to protect his own most highly confidential\ninformation. Executive shall not make any copies of Confidential Information, except as previously approved in writing\nby the Employer. Executive shall reproduce the Employer's proprietary rights and confidentiality notices on any such\napproved copies, in the same manner in which such notices were set forth in or on the original. Executive shall\nimmediately notify the Employer in the event of any unauthorized use or disclosure of the Confidential Information.\n5. Ownership. All documentary Confidential Information, and all copies and summaries or synopses\nthereof, however made or obtained, and whether in tangible or electronic medium, are and shall remain the exclusive\nproperty of the Employer.\n6.\nReturn of Materials. All documents and other tangible objects containing or representing Confidential\nInformation and all copies thereof which are in the possession of Executive shall be and remain the property of\nEmployer and shall be promptly returned to Employer upon Employer's request.\n7.\nNo License. Nothing in this Agreement is intended to grant any rights to Executive under any patent,\nmask work right, or copyright of Employer, nor shall this Agreement grant Executive any rights in or to Confidential\nInformation except as expressly set forth herein.\n-2-\n8.\nTerm. This Agreement shall survive until such time as all Confidential Information disclosed hereunder\nbecomes publicly known and made generally available through no action or inaction of Executive.\n9.\nRemedies. Executive agrees that any violation or threatened violation of this Agreement will cause\nirreparable injury to the Employer, entitling Employer to seek injunctive relief in addition to all legal remedies.\nAGREED AND ACCEPTED:\nDUSTIN SUCHTER ("Executive"):\nDate:\nSOCIAL REALITY, INC. ("Employer"):\nBy:\nName: Chris Miglino\nTitle: Chief Executive Officer\nDate:\n-3-	1.\n2.\nExhibit A\nCONFIDENTIALITY/ NON-DISCLOSURE AGREEMENT\nTHIS MUTUAL NON-DISCLOSURE AGREEMENT (this “Agreement”) is made and entered into as of the\ndate of the latter of the two signatures appearing below between Social Reality, Inc. (“Employer”) and Dustin Suchter\n(“Executive”).\nPurpose. Employer wishes to employ the Executive pursuant, during which employment the Employer\nmay disclose to Executive certain confidential technical, financial, and business information – including but not limited\nto information relating to advertising techniques, historical prices, Internet-based advertising, marketing practices,\nclients, prospective clients, proprietary software, trade secrets, and other intellectual property – which Employer desires\nExecutive to treat as confidential during and after the termination of Executive’s employment.\nDefinition.\n"Confidential Information" means any information, documents, and/or tangible things\ndisclosed to Executive by Employer, either directly or indirectly in writing, orally or by inspection of tangible objects,\nincluding without limitation the Employer's business and operating plans, software, and competitors. Without limiting\nthe generality of the foregoing, Confidential Information shall include trade secrets as “trade secrets” are defined under\nthe version of the Uniform Trade Secrets Act adopted and in effect in the State of California, as amended from time to\ntime during the term of this Agreement, the provisions of which defining “trade secrets” are incorporated herein by\nreference. Confidential Information shall also include but not be limited to all other discoveries, developments, designs,\nimprovements, inventions, formulas, software programs, business plans, processes, username and password information,\ntechniques, know-how, negative know-how, data, research, techniques, technical data, client and customer and supplier\nlists, financial projections, current and prospective financing arrangements, marketing methods, plans, and related data,\ncustomer lists, buying habits and practices, pricing structures, and payment and credit histories, costs of sales and terms\nof trade, the identity and business practices of vendors, suppliers, financiers, bankers, agents, or brokers, the identity,\nskill sets, and job duties of vendors, employees, independent contractors, or Executives, terms of employment for\nemployees, agents, and representatives, including employee stock option plans and participation, written records and\ndata used in developing and operating its business, other confidential information of, about, or concerning Employer ’s\nbusiness and affairs, the financing and operations of its business, and its relationships with its employees, agents,\ncustomers, vendors, or representatives, and any modifications or enhancements of any of the foregoing, and all Employer\nprogram, pricing, marketing, sales, business contract, or other financial or business information. Confidential\nInformation shall not, however, include any information which Executive can establish: (i) was publicly known and\nmade generally available in the public domain prior to the time of disclosure to Executive by Employer; (ii) becomes\npublicly known and made generally available after disclosure to Executive by Employer through no action or inaction of\nExecutive; or (iii) is in the possession of Executive, without confidentiality restrictions, at the time of disclosure by the\nEmployer as shown by Executive's files and records immediately prior to the time of disclosure.\n3.\n4.\n5.\nOwnership.\n6.\n7.\nIt shall be presumed that any information in the possession of Executive that has been disclosed to Executive by\nEmployer, or any agent or representative of Employer, is not within any of the exceptions to the definition of\nConfidential Information set forth in the previous sentence, and the burden is on Executive to prove otherwise by written\nrecords and documentation.\nNon-use and Non-disclosure. Executive agrees not to use or disclose any Confidential Information for\nany purpose except as part of Executive’s performance of his job duties during his employment by the Employer.\nExecutive shall not reverse-engineer, disassemble or decompile any prototypes, software or other tangible objects,\nwhich embody Employer's Confidential Information and which are provided to Executive hereunder. The Executive\nagrees that all Confidential Information shall not be used by the Executive in any way adverse to the interests of the\nEmployer or any of its subsidiaries during the Term of this Agreement, and shall not be used by the Executive in any\nway whatsoever following the Term of this Agreement. The Executive will not, during the Term or thereafter, use,\nreference, paraphrase, deliver, reproduce, or in any way allow such information, documents, and/or things to be used,\ndelivered, reproduced, or referenced, by any third party without specific prior written request to and the written\nauthorization from a duly authorized representative of the Employer. During and after termination of the Executive’s\nemployment with the Employer, the Executive will not use, publish, release, reproduce, or otherwise make available to\nany third party any information, document, or thing containing or describing any trade secret or other Confidential\nInformation of the Employer without prior specific written authorization of the Employer.\nMaintenance of Confidentiality. Executive agrees that he shall take all reasonable measures to protect\nthe secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the\nforegoing, Executive shall take at least those measures that Executive takes to protect his own most highly confidential\ninformation. Executive shall not make any copies of Confidential Information, except as previously approved in writing\nby the Employer. Executive shall reproduce the Employer's proprietary rights and confidentiality notices on any such\napproved copies, in the same manner in which such notices were set forth in or on the original. Executive shall\nimmediately notify the Employer in the event of any unauthorized use or disclosure of the Confidential Information.\nAll documentary Confidential Information, and all copies and summaries or synopses\nthereof, however made or obtained, and whether in tangible or electronic medium, are and shall remain the exclusive\nproperty of the Employer.\nReturn of Materials. All documents and other tangible objects containing or representing Confidential\nInformation and all copies thereof which are in the possession of Executive shall be and remain the property of\nEmployer and shall be promptly returned to Employer upon Employer's request.\nNo License. Nothing in this Agreement is intended to grant any rights to Executive under any patent,\nmask work right, or copyright of Employer, nor shall this Agreement grant Executive any rights in or to Confidential\nInformation except as expressly set forth herein.\n-2-\n8.\n9.\nTerm. This Agreement shall survive until such time as all Confidential Information disclosed hereunder\nbecomes publicly known and made generally available through no action or inaction of Executive.\nRemedies. Executive agrees that any violation or threatened violation of this Agreement will cause\nirreparable injury to the Employer, entitling Employer to seek injunctive relief in addition to all legal remedies.\nAGREED AND ACCEPTED:\nDUSTIN SUCHTER (“Executive”):\nDate:\nSOCIAL REALITY, INC. (“Employer”):\nBy:\nName: Chris Miglino\nTitle: Chief Executive Officer\nDate:\n-3-
+eab914221a16ac5daadfbd31d354c03e.pdf	effective_date jurisdiction party term	EX-99.(E)(6) 5 dex99e6.htm CONFIDENTIALITY AGREEMENT BY AND BETWEEN BIOSITE INC AND\nBECKMAN COULTER, INC.\nEXHIBIT (e)(6)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY A GREEMENT (this “Agreement”) is being entered into as of May 11, 2006, between BIOSITE INCORPORATED\n(“Biosite”), on the one hand, and BECKMAN COULTER, INC. (together with its subsidiaries and affiliates, “Beckman Coulter”), on the other hand.\nIn order to facilitate the consideration and negotiation of a possible strategic transaction involving Biosite and Beckman Coulter (referred to\ncollectively as the “Parties” and individually as a “Party”) separate from the ongoing business relationship between the Parties, each Party has\nrequested access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to\nin this Agreement as the “Recipient.”) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and\nregarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Definitions. For purposes of this Agreement:\n(a) a Party’s “Representatives” will be deemed to include each Person that is or becomes: (i) a subsidiary or other affiliate of such Party;\nor (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries\nor other affiliates.\n(b) the term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n2. Confidential Information. For purposes of this Agreement, each Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has been made available to the Recipient\nor any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly\nupon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information\nwas not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person\nwith respect to any of such information; or\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient or any of the Recipient’s Representatives without reliance\non the information received from Provider or any of the Provider’s Representatives hereunder, as evidenced by written records.\n3. Limitations on Use and Disclosure of Confidential Information. Subject to section 5 below, neither the Recipient nor any of the\nRecipient’s Representatives will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information, except for the specific purpose of considering, evaluating and\nnegotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person.\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on\nthe part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.\n4. No Representations by Provider. The Representatives of each Provider will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of\nthe Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of the Provider’s Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive\nwritten agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties\n(a “Definitive Agreement”) will have legal effect.\n5. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 3 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof;\n(ii) subject to section 5(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative: (A) needs to know such Confidential Information for the purpose of helping the Recipient\nevaluate or negotiate a possible negotiated transaction between the Parties; and (B) has been informed of the obligations set forth in this Agreement\nand has agreed to abide and be bound by the provisions hereof; and\n(iii) subject to section 5(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by subpoena or other valid legal process.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be\ndisclosed only to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in section 5(a)(ii) above, the\nRecipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient’s Representatives is required by applicable law or governmental regulation or by subpoena or\nother valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the\nProvider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy.\nThe Recipient and its Representatives will use reasonable efforts to cooperate with the Provider and the Provider’s Representatives in any attempt by\nthe Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such\nprotective order or other remedy in connection with any requirement that the Recipient disclose\nConfidential Information of the Provider, and if the Recipient has been advised by its internal counsel or other reputable external legal counsel\nconfirming that the disclosure of such Confidential Information is legally required, then the Recipient may disclose such Confidential Information to\nthe extent legally required; provided, however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such\nConfidential Information is treated confidentially by each Person to whom it is disclosed.\n6. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver\nto the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the\nRecipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any written materials of the type described in clause “(b)”\nof the first sentence of section 2 above, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their\ndestruction. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant\nto this section 6, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n7. Standstill Provision. During the 18-month period commencing on the date of this Agreement (the “Standstill Period”), neither Beckman\nCoulter nor any entity controlling, controlled by or under common control with Beckman Coulter will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Biosite or any securities\nof any subsidiary or other affiliate of Biosite, (ii) any acquisition of any assets of Biosite or any assets of any subsidiary or other affiliate of Biosite,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary\ntransaction involving Biosite or any subsidiary or other affiliate of Biosite, or involving any securities or assets of Biosite or any securities or assets\nof any subsidiary or other affiliate of Biosite, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and\nExchange Commission) or consents with respect to any securities of Biosite;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Biosite;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Biosite;\n(d) take any action that might require Biosite to make a public announcement regarding any of the types of matters set forth in clause\n“(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)”\nor “(d)” of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of\nthis sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Biosite or any of Biosite’s Representatives amend, waive or consider the amendment or waiver of any\nprovision set forth in this section 7.\nIn the event that Biosite enters into a definitive agreement with any other Person or entity involving a merger or sale of the majority of the\noutstanding securities or assets of Biosite to a third party, following Biosite’s announcement of such definitive agreement Beckman Coulter shall be\nreleased from any and all of the restrictions and obligations contained in this paragraph; provided, however, that any such release shall not be\ndeemed a waiver of any prior breach under this paragraph.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.\n8. Limitation on Soliciting Employees. During the 12-month period commencing on the date of this Agreement, Beckman Coulter will not\npermit any of its Representatives or any subsidiary or affiliate thereof who is or becomes aware of the consideration or negotiation of a possible\ntransaction between the Parties to solicit for employment with such Party or any of its subsidiaries or affiliates any Specified Employee (as defined\nbelow) of Biosite; provided, however, that this section 8 will not prevent Beckman Coulter or any of its Representatives or any subsidiary or affiliate\nthereof from: (a) causing to be placed any general advertisement or similar public notice that is not targeted specifically at employees of Biosite or\nits subsidiaries or affiliates; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of\nBeckman Coulter, or soliciting the employment of any Specified Employee of Biosite or any of its subsidiaries or affiliates who is identified by any\nsuch recruiting firm or organization, as long as such recruiting firm or organization is not instructed to target any employees of Biosite or its\nsubsidiaries or affiliates. For purposes of this section 8, a person shall be deemed to be a “Specified Employee” of Biosite if: (i) such person is\nemployed by Biosite or by any subsidiary or affiliate of Biosite on the date of this Agreement or becomes employed by Biosite or by any subsidiary\nor affiliate of Biosite during the period in which such Party is continuing to negotiate a possible transaction with the other Party; and (ii) such\nperson’s employment shall not have been involuntarily terminated by Biosite or by a subsidiary or affiliate of Biosite.\n9. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process\nwithout giving notice to the other Party or any other Person; (b) to reject any\nproposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate\ndiscussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written\nagreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to\nnegotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims\nagainst the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the\nother Party.\n10. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future\nexercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or\namended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular\nprovision or provisions being waived or amended.\n11. Remedies. Each Party shall indemnify and hold harmless the other Party and the other Party’s Representatives against and from, and shall\ncompensate and reimburse the other Party and the other Party’s Representatives for, any damage, loss, claim, liability or expense (including legal\nfees and the cost of enforcing the other Party’s rights under this Agreement) arising out of or resulting from any unauthorized use or disclosure of\nany of the other Party’s Confidential Information or any other breach of this Agreement by such Party or any of its Representatives. Each Party\nacknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s\nRepresentatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to\nequitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party\nor any of the other Party’s Representatives. The indemnification and equitable remedies referred to above will not be deemed to be the exclusive\nremedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of\nlitigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives has breached this\nAgreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the reasonable legal fees incurred by\nthe other Party and the other Party’s Representatives in connection with such litigation (including any appeal relating thereto).\n12. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of California (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of California for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth below the name of such Party at the end of this Agreement shall be effective service of\nprocess for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of California; and\n(d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any\naction, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of California has\nbeen brought in an inconvenient forum.\n13. Miscellaneous.\n(a) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(b) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(c) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of\ninterest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual\ndesire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality\nof any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection\nthereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the\nfullest extent possible, the applicability of all such privileges or doctrines.\n(e) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof. However, for the avoidance of doubt, the\nParties mutually acknowledge and agree that this Agreement shall not modify, amend, terminate or supersede any obligation of either Party under\nany prior agreement to preserve the confidentiality of non-public information of the other Party that is disclosed for\npurposes unrelated to the consideration or negotiation of a strategic transaction involving the parties, including without limitation any obligations\narising out of that certain Confidentiality Agreement effective October 9, 2003, the Mutual Confidential Disclosure Agreement dated as of January 7,\n2003, the Confidentiality Agreement effective October 15, 2002, and the Confidentiality Agreement effective June 14, 2001, the BNP Assay\nDevelopment, Manufacture and Supply Agreement effective June 24, 2003, as amended, and the Stroke Assay Development, Manufacture and\nSupply Agreement dated as of June 24, 2003 (collectively, the “Pre-Existing Agreements”). Any disclosures of non-public information for purposes\nunrelated to the consideration or negotiation of a strategic transaction between the Parties shall continue to be subject to the applicable Pre-Existing\nAgreement in accordance with its terms.\n[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have caused this CONFIDENTIALITY AGREEMENT to be executed as of the date first written above.\nBIOSITE INCORPORATED\nBECKMAN COULTER, INC.\nBy: /s/ Kim D. Blickenstaff\nBy: /s/ Arnold A. Pinkston\nName: Kim D. Blickenstaff\nName: Arnold A. Pinkston\nTitle: Chairman & CEO\nTitle: Senior Vice President & General Counsel\nAddress: 9975 Summers Ridge Road\nSan Diego, CA 92121\nAddress: 4300 N. Harbor Blvd.\nFullerton, CA 92835\nMarch 23, 2007\nSTRICTLY CONFIDENTIAL\nBiosite Incorporated\n9975 Summers Ridge Road\nSan Diego, California 92121\nDear Mr. Blickenstaff:\nThis letter will confirm our agreement in connection with the willingness of Beckman Coulter, Inc. (“Beckman”) to proceed with further\ndiscussions regarding a potential transaction between Biosite Incorporated (the “Company”) and Beckman (a “Possible Transaction”). This letter is\nexecuted in connection with, and in reliance upon, the completed consideration by the respective Boards of Directors of each of the Company and\nBeckman of such a Possible Transaction at meetings to be conducted between Friday, March 23, 2007 and Saturday, March 24, 2007.\n1. No Solicitation; No Shop. The Company agrees that from the execution of this letter by the Company through 6:00 A.M. California time on\nMonday, March 26, 2007 (the “Specified Period”), the Company will not, and will cause its Representatives (as hereinafter defined) not to, make any\noutgoing calls or other outgoing communications during the Specified Period to any person that has not first contacted the Company or any of its\nRepresentatives during the Specified Period to directly or indirectly solicit any inquiries or proposals that constitute, or may reasonably be expected\nto lead to, any Acquisition Proposal (as hereinafter defined) (it being understood that, for the avoidance of doubt, nothing in this letter shall prohibit\nor otherwise limit: (a) the Company or any of its Representatives from responding in any manner other than as prohibited by the immediately\nfollowing paragraph to any person that initiates contact with the Company or any of its Representatives during the Specified Period; or (b) the\nCompany or any of its Representatives from continuing business diligence discussions with any person or entity in furtherance of such pre-existing\ndiscussions).\nIn addition, the Company further agrees that during the Specified Period (and otherwise as long as prohibited under the Confidentiality\nAgreement referred to below) it will not directly or indirectly take any action during the Specified Period to disclose to any third party (other than\nthe Company’s Representatives) the existence of such bid or the terms or value thereof.\nFor purposes of this letter agreement, “Acquisition Proposal” shall mean any proposal or offer (other than one relating to a Possible\nTransaction) involving the Company or any of its subsidiaries for, or that could be reasonably expected to lead to: (a) any merger, consolidation,\nshare exchange, sale of equity or other equity investment, recapitalization, business combination or other similar transaction involving the Company\nor any of its subsidiaries, (b) any sale, lease, exchange, license, mortgage, pledge, transfer or other disposition of a substantial part of the\nconsolidated assets of the Company and its subsidiaries, or (c) any offer for all or any portion of\nMarch 23, 2007\nPage 2\nthe outstanding shares of capital stock or ownership interests of the Company or any of its subsidiaries. For purposes of this letter agreement, the\nterm “Representatives” shall include the members, directors, managers, officers, employees, agents, affiliates (as such term is defined under the\nSecurities Exchange Act of 1934, as amended), partners and advisors of the Company and those of its subsidiaries, affiliates and/or divisions\n(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors).\n2. Disclosure. Each part to this letter agreement agrees that the existence and terms of this letter constitute “Confidential Information”, as such\nterm is defined in the Confidentiality Agreement dated May 11, 2006 between the Company and Beckman, as amended, and any disclosure of such\nConfidential Information shall be subject to the restrictions, terms and conditions of the Confidentiality Agreement.\n3. No Agreement. Each party to this letter agreement agrees that no contract or agreement providing for any Possible Transaction shall be\ndeemed to exist between the parties hereto unless and until a final definitive agreement has been executed and delivered.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter\nagreement shall become a binding agreement among you and us.\nBeckman Coulter, Inc.,\na Delaware corporation\nBy: /s/ Scott Garrett\nName: Scott Garrett\nTitle: President, Chief Executive\nCONFIRMED AND AGREED\nas of the date first written above:\nBiosite Incorporated,\na Delaware corporation\nBy: /s/ Kim D. Blickenstaff\nName: Kim D. Blickenstaff\nTitle: Chairman & CEO	EX-99.(E)(6) 5 dex99e6.htm CONFIDENTIALITY AGREEMENT BY AND BETWEEN BIOSITE INC AND\nBECKMAN COULTER, INC.\nEXHIBIT (e)(6)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (this “Agreement”) is being entered into as of May 11, 2006, between BIOSITE INCORPORATED\n(“Biosite”), on the one hand, and BECKMAN COULTER, INC. (together with its subsidiaries and affiliates, “Beckman Coulter”), on the other hand.\nIn order to facilitate the consideration and negotiation of a possible strategic transaction involving Biosite and Beckman Coulter (referred to\ncollectively as the “Parties” and individually as a “Party”) separate from the ongoing business relationship between the Parties, each Party has\nrequested access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to\nin this Agreement as the “Recipient.”) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and\nregarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Definitions. For purposes of this Agreement:\n(a) a Party’s “Representatives” will be deemed to include each Person that is or becomes: (i) a subsidiary or other affiliate of such Party;\nor (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries\nor other affiliates.\n(b) the term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n \n2. Confidential Information. For purposes of this Agreement, each Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has been made available to the Recipient\nor any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly\nupon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information\nwas not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person\nwith respect to any of such information; or\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient or any of the Recipient’s Representatives without reliance\non the information received from Provider or any of the Provider’s Representatives hereunder, as evidenced by written records.\n3. Limitations on Use and Disclosure of Confidential Information. Subject to section 5 below, neither the Recipient nor any of the\nRecipient’s Representatives will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information, except for the specific purpose of considering, evaluating and\nnegotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person.\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on\nthe part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.\n4. No Representations by Provider. The Representatives of each Provider will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of\nthe Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of the Provider’s Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive\nwritten agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties\n(a “Definitive Agreement”) will have legal effect.\n5. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 3 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof;\n(ii) subject to section 5(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative: (A) needs to know such Confidential Information for the purpose of helping the Recipient\nevaluate or negotiate a possible negotiated transaction between the Parties; and (B) has been informed of the obligations set forth in this Agreement\nand has agreed to abide and be bound by the provisions hereof; and\n(iii) subject to section 5(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by subpoena or other valid legal process.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be\ndisclosed only to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in section 5(a)(ii) above, the\nRecipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient’s Representatives is required by applicable law or governmental regulation or by subpoena or\nother valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the\nProvider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy.\nThe Recipient and its Representatives will use reasonable efforts to cooperate with the Provider and the Provider’s Representatives in any attempt by\nthe Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such\nprotective order or other remedy in connection with any requirement that the Recipient disclose\nConfidential Information of the Provider, and if the Recipient has been advised by its internal counsel or other reputable external legal counsel\nconfirming that the disclosure of such Confidential Information is legally required, then the Recipient may disclose such Confidential Information to\nthe extent legally required; provided, however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such\nConfidential Information is treated confidentially by each Person to whom it is disclosed.\n6. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver\nto the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the\nRecipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any written materials of the type described in clause “(b)”\nof the first sentence of section 2 above, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their\ndestruction. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant\nto this section 6, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n7. Standstill Provision. During the 18-month period commencing on the date of this Agreement (the “Standstill Period”), neither Beckman\nCoulter nor any entity controlling, controlled by or under common control with Beckman Coulter will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Biosite or any securities\nof any subsidiary or other affiliate of Biosite, (ii) any acquisition of any assets of Biosite or any assets of any subsidiary or other affiliate of Biosite,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary\ntransaction involving Biosite or any subsidiary or other affiliate of Biosite, or involving any securities or assets of Biosite or any securities or assets\nof any subsidiary or other affiliate of Biosite, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and\nExchange Commission) or consents with respect to any securities of Biosite;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Biosite;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Biosite;\n(d) take any action that might require Biosite to make a public announcement regarding any of the types of matters set forth in clause\n“(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)”\nor “(d)” of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of\nthis sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Biosite or any of Biosite’s Representatives amend, waive or consider the amendment or waiver of any\nprovision set forth in this section 7.\nIn the event that Biosite enters into a definitive agreement with any other Person or entity involving a merger or sale of the majority of the\noutstanding securities or assets of Biosite to a third party, following Biosite’s announcement of such definitive agreement Beckman Coulter shall be\nreleased from any and all of the restrictions and obligations contained in this paragraph; provided, however, that any such release shall not be\ndeemed a waiver of any prior breach under this paragraph.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.\n8. Limitation on Soliciting Employees. During the 12-month period commencing on the date of this Agreement, Beckman Coulter will not\npermit any of its Representatives or any subsidiary or affiliate thereof who is or becomes aware of the consideration or negotiation of a possible\ntransaction between the Parties to solicit for employment with such Party or any of its subsidiaries or affiliates any Specified Employee (as defined\nbelow) of Biosite; provided, however, that this section 8 will not prevent Beckman Coulter or any of its Representatives or any subsidiary or affiliate\nthereof from: (a) causing to be placed any general advertisement or similar public notice that is not targeted specifically at employees of Biosite or\nits subsidiaries or affiliates; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of\nBeckman Coulter, or soliciting the employment of any Specified Employee of Biosite or any of its subsidiaries or affiliates who is identified by any\nsuch recruiting firm or organization, as long as such recruiting firm or organization is not instructed to target any employees of Biosite or its\nsubsidiaries or affiliates. For purposes of this section 8, a person shall be deemed to be a “Specified Employee” of Biosite if: (i) such person is\nemployed by Biosite or by any subsidiary or affiliate of Biosite on the date of this Agreement or becomes employed by Biosite or by any subsidiary\nor affiliate of Biosite during the period in which such Party is continuing to negotiate a possible transaction with the other Party; and (ii) such\nperson’s employment shall not have been involuntarily terminated by Biosite or by a subsidiary or affiliate of Biosite.\n9. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process\nwithout giving notice to the other Party or any other Person; (b) to reject any\nproposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate\ndiscussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written\nagreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to\nnegotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims\nagainst the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the\nother Party.\n10. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future\nexercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or\namended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular\nprovision or provisions being waived or amended.\n11. Remedies. Each Party shall indemnify and hold harmless the other Party and the other Party’s Representatives against and from, and shall\ncompensate and reimburse the other Party and the other Party’s Representatives for, any damage, loss, claim, liability or expense (including legal\nfees and the cost of enforcing the other Party’s rights under this Agreement) arising out of or resulting from any unauthorized use or disclosure of\nany of the other Party’s Confidential Information or any other breach of this Agreement by such Party or any of its Representatives. Each Party\nacknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s\nRepresentatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to\nequitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party\nor any of the other Party’s Representatives. The indemnification and equitable remedies referred to above will not be deemed to be the exclusive\nremedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of\nlitigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives has breached this\nAgreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the reasonable legal fees incurred by\nthe other Party and the other Party’s Representatives in connection with such litigation (including any appeal relating thereto).\n12. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of California (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of California for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth below the name of such Party at the end of this Agreement shall be effective service of\nprocess for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of California; and\n(d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any\naction, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of California has\nbeen brought in an inconvenient forum.\n13. Miscellaneous.\n(a) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(b) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(c) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of\ninterest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties” mutual\ndesire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality\nof any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection\nthereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the\nfullest extent possible, the applicability of all such privileges or doctrines.\n(e) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof. However, for the avoidance of doubt, the\nParties mutually acknowledge and agree that this Agreement shall not modify, amend, terminate or supersede any obligation of either Party under\nany prior agreement to preserve the confidentiality of non-public information of the other Party that is disclosed for\npurposes unrelated to the consideration or negotiation of a strategic transaction involving the parties, including without limitation any obligations\narising out of that certain Confidentiality Agreement effective October 9, 2003, the Mutual Confidential Disclosure Agreement dated as of January 7,\n2003, the Confidentiality Agreement effective October 15, 2002, and the Confidentiality Agreement effective June 14, 2001, the BNP Assay\nDevelopment, Manufacture and Supply Agreement effective June 24, 2003, as amended, and the Stroke Assay Development, Manufacture and\nSupply Agreement dated as of June 24, 2003 (collectively, the “Pre-Existing Agreements”). Any disclosures of non-public information for purposes\nunrelated to the consideration or negotiation of a strategic transaction between the Parties shall continue to be subject to the applicable Pre-Existing\nAgreement in accordance with its terms.\n[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have caused this CONFIDENTIALITY AGREEMENT to be executed as of the date first written above. BIOSITE INCORPORATED\nBy: /s/ Kim D. Blickenstaff\nName: Kim D. Blickenstaff\nTitle:  Chairman & CEO\nAddress: 9975 Summers Ridge Road\nSan Diego, CA 92121\nBECKMAN COULTER, INC.\nBy: /s/ Arnold A. Pinkston\nName: Arnold A. Pinkston\nTitle:  Senior Vice President & General Counsel\nAddress: 4300 N. Harbor Blvd.\nFullerton, CA 92835\nMarch 23, 2007\nSTRICTLY CONFIDENTIAL\nBiosite Incorporated\n9975 Summers Ridge Road\nSan Diego, California 92121\nDear Mr. Blickenstaff:\nThis letter will confirm our agreement in connection with the willingness of Beckman Coulter, Inc. (“Beckman”) to proceed with further\ndiscussions regarding a potential transaction between Biosite Incorporated (the “Company”) and Beckman (a “Possible Transaction”). This letter is\nexecuted in connection with, and in reliance upon, the completed consideration by the respective Boards of Directors of each of the Company and\nBeckman of such a Possible Transaction at meetings to be conducted between Friday, March 23, 2007 and Saturday, March 24, 2007.\n1. No Solicitation; No Shop. The Company agrees that from the execution of this letter by the Company through 6:00 A.M. California time on\nMonday, March 26, 2007 (the “Specified Period”), the Company will not, and will cause its Representatives (as hereinafter defined) not to, make any\noutgoing calls or other outgoing communications during the Specified Period to any person that has not first contacted the Company or any of its\nRepresentatives during the Specified Period to directly or indirectly solicit any inquiries or proposals that constitute, or may reasonably be expected\nto lead to, any Acquisition Proposal (as hereinafter defined) (it being understood that, for the avoidance of doubt, nothing in this letter shall prohibit\nor otherwise limit: (a) the Company or any of its Representatives from responding in any manner other than as prohibited by the immediately\nfollowing paragraph to any person that initiates contact with the Company or any of its Representatives during the Specified Period; or (b) the\nCompany or any of its Representatives from continuing business diligence discussions with any person or entity in furtherance of such pre-existing\ndiscussions).\nIn addition, the Company further agrees that during the Specified Period (and otherwise as long as prohibited under the Confidentiality\nAgreement referred to below) it will not directly or indirectly take any action during the Specified Period to disclose to any third party (other than\nthe Company’s Representatives) the existence of such bid or the terms or value thereof.\nFor purposes of this letter agreement, “Acquisition Proposal” shall mean any proposal or offer (other than one relating to a Possible\nTransaction) involving the Company or any of its subsidiaries for, or that could be reasonably expected to lead to: (a) any merger, consolidation,\nshare exchange, sale of equity or other equity investment, recapitalization, business combination or other similar transaction involving the Company\nor any of its subsidiaries, (b) any sale, lease, exchange, license, mortgage, pledge, transfer or other disposition of a substantial part of the\nconsolidated assets of the Company and its subsidiaries, or (c) any offer for all or any portion of\n \nMarch 23, 2007\nPage 2\nthe outstanding shares of capital stock or ownership interests of the Company or any of its subsidiaries. For purposes of this letter agreement, the\nterm “Representatives” shall include the members, directors, managers, officers, employees, agents, affiliates (as such term is defined under the\nSecurities Exchange Act of 1934, as amended), partners and advisors of the Company and those of its subsidiaries, affiliates and/or divisions\n(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors).\n2. Disclosure. Each part to this letter agreement agrees that the existence and terms of this letter constitute “Confidential Information”, as such\nterm is defined in the Confidentiality Agreement dated May 11, 2006 between the Company and Beckman, as amended, and any disclosure of such\nConfidential Information shall be subject to the restrictions, terms and conditions of the Confidentiality Agreement.\n3. No Agreement. Each party to this letter agreement agrees that no contract or agreement providing for any Possible Transaction shall be\ndeemed to exist between the parties hereto unless and until a final definitive agreement has been executed and delivered.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter\nagreement shall become a binding agreement among you and us.\nBeckman Coulter, Inc.,\na Delaware corporation\nBy: /s/ Scott Garrett\nName: Scott Garrett\nTitle: President, Chief Executive\nCONFIRMED AND AGREED\nas of the date first written above:\nBiosite Incorporated,\na Delaware corporation\nBy: /s/ Kim D. Blickenstaff\nName: Kim D. Blickenstaff\nTitle: Chairman & CEO	EX-99.(E)(6) 5 dex99e6.htm CONFIDENTIALITY AGREEMENT BY AND BETWEEN BIOSITE INC AND\nBECKMAN COULTER, INC.\nEXHIBIT (e)(6)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY AGREEMENT (this "Agreement") is being entered into as of May 11, 2006, between BIOSITE INCORPORATED\n("Biosite"), on the one hand, and BECKMAN COULTER, INC. (together with its subsidiaries and affiliates, "Beckman Coulter"), on the other\nhand.\nIn order to facilitate the consideration and negotiation of a possible strategic transaction involving Biosite and Beckman Coulter (referred\nto\ncollectively as the "Parties" and individually as a "Party.") separate from the ongoing business relationship between the Parties, each Party has\nrequested access to certain non-public information regarding the other Party and the other Party's subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the "Provider"; and each Party, in its capacity as a recipient of information, is referred to\nin\nthis Agreement as the "Recipient.") This Agreement sets forth the Parties' obligations regarding the use and disclosure of such information and\nregarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Definitions. For purposes of this Agreement:\n(a) a Party's "Representatives" will be deemed to include each Person that is or becomes: (i) a subsidiary or other affiliate of such Party;\nor (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party's subsidiaries\nor other affiliates.\n(b) the term "Person," as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n2. Confidential Information. For purposes of this Agreement, each Provider's "Confidential Information" will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has been made available to the Recipient\nor any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly\nupon any information of the type referred to in clause "(a)" of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause "(a)" of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\nHowever, the Provider's "Confidentia Information" will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient's Representatives;\n(ii) any information that was in the Recipient's possession prior to the time it was first made available to the Recipient or any of\nthe Recipient's Representatives by or on behalf of the Provider or any of the Provider's Representatives, provided that the source of such information\nwas not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person\nwith respect to any of such information; or\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider's Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient or any of the Recipient's Representatives without reliance\non the information received from Provider or any of the Provider's Representatives hereunder, as evidenced by written records.\n3. Limitations on Use and Disclosure of Confidential Information. Subject to section 5 below, neither the Recipient nor any of the\nRecipient's Representatives will, at any time, directly or indirectly:\n(a) make use of any of the Provider's Confidential Information, except for the specific purpose of considering, evaluating and\nnegotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider's Confidential Information to any other Person.\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on\nthe part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider's Confidential Information.\n4. No Representations by Provider. The Representatives of each Provider will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of\nthe Provider's Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient's Representatives or to supplement or update any Confidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider's Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient's Representatives relating to or resulting from the use of any of the Provider's Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive\nwritten agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties\n(a "Definitive Agreement") will have legal effect.\n5. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 3 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient's disclosure thereof;\n(ii) subject to section 5(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative: (A) needs to know such Confidential Information for the purpose of helping the Recipient\nevaluate or negotiate a possible negotiated transaction between the Parties; and (B) has been informed of the obligations set forth in this Agreement\nand has agreed to abide and be bound by the provisions hereof; and\n(iii) subject to section 5(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required\nby\napplicable law or governmental regulation or by subpoena or other valid legal process.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be\ndisclosed only to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in section 5(a)(ii) above, the\nRecipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient's Representatives is required by applicable law or governmental regulation or by subpoena or\nother valid legal process to disclose any of the Provider's Confidential Information to any Person, then the Recipient will promptly provide the\nProvider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate\nremedy.\nThe Recipient and its Representatives will use reasonable efforts to cooperate with the Provider and the Provider's Representatives in any attempt by\nthe Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such\nprotective order or other remedy in connection with any requirement that the Recipient disclose\nConfidential Information of the Provider, and if the Recipient has been advised by its internal counsel or other reputable external legal counsel\nconfirming that the disclosure of such Confidential Information is legally required, then the Recipient may disclose such Confidential Information to\nthe extent legally required; provided, however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such\nConfidential Information is treated confidentially by each Person to whom it is disclosed.\n6. Return of Confidential Information. Upon the Provider's request, the Recipient and the Recipient's Representatives will promptly deliver\nto the Provider any of the Provider's Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the\nRecipient's Representatives; provided, however, that, in lieu of delivering to the Provider any written materials of the type described in clause\n"(b)"\nof the first sentence of section 2 above, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their\ndestruction. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant\nto this section 6, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n7. Standstill Provision. During the 18-month period commencing on the date of this Agreement (the "Standstill Period"), neither Beckman\nCoulter nor any entity controlling, controlled by or under common control with Beckman Coulter will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Biosite or any securities\nof any subsidiary or other affiliate of Biosite, (ii) any acquisition of any assets of Biosite or any assets of any subsidiary or other affiliate of Biosite,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary\ntransaction involving Biosite or any subsidiary or other affiliate of Biosite, or involving any securities or assets of Biosite or any securities or assets\nof any subsidiary or other affiliate of Biosite, or (iv) any "solicitation" of "proxies" (as those terms are used in the proxy rules of the Securities and\nExchange Commission) or consents with respect to any securities of Biosite;\n(b) form, join or participate in a "group" (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Biosite;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Biosite;\n(d) take any action that might require Biosite to make a public announcement regarding any of the types of matters set forth in clause\n"(a)" of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause "(a)", "(b)", "(c)"\nor "(d)" of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause "(a)", "(b)", "(c)", "(d)" or "(e)" of\nthis sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing;\nor\n(h) request or propose that Biosite or any of Biosite's Representatives amend, waive or consider the amendment or waiver of any\nprovision set forth in this section 7.\nIn the event that Biosite enters into a definitive agreement with any other Person or entity involving a merger or sale of the majority of the\noutstanding securities or assets of Biosite to a third party, following Biosite's announcement of such definitive agreement Beckman Coulter shall\nbe\nreleased from any and all of the restrictions and obligations contained in this paragraph; provided, however, that any such release shall not be\ndeemed a waiver of any prior breach under this paragraph.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.\n8. Limitation on Soliciting Employees. During the 12-month period commencing on the date of this Agreement, Beckman Coulter will not\npermit any of its Representatives or any subsidiary or affiliate thereof who is or becomes aware of the consideration or negotiation of a possible\ntransaction between the Parties to solicit for employment with such Party or any of its subsidiaries or affiliates any Specified Employee (as defined\nbelow) of Biosite; provided, however, that this section 8 will not prevent Beckman Coulter or any of its Representatives or any subsidiary or affiliate\nthereof from: (a) causing to be placed any general advertisement or similar public notice that is not targeted specifically at employees of Biosite or\nits subsidiaries or affiliates; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of\nBeckman Coulter, or soliciting the employment of any Specified Employee of Biosite or any of its subsidiaries or affiliates who is identified by any\nsuch recruiting firm or organization, as long as such recruiting firm or organization is not instructed to target any employees of Biosite or its\nsubsidiaries or affiliates. For purposes of this section 8, a person shall be deemed to be a "Specified Employee" of Biosite if: (i) such person is\nemployed by Biosite or by any subsidiary or affiliate of Biosite on the date of this Agreement or becomes employed by Biosite or by any subsidiary\nor affiliate of Biosite during the period in which such Party is continuing to negotiate a possible transaction with the other Party; and (ii) such\nperson's employment shall not have been involuntarily terminated by Biosite or by a subsidiary or affiliate of Biosite.\n9. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process\nwithout giving notice to the other Party or any other Person; (b) to reject any\nproposal made by the other Party or any of the other Party's Representatives with respect to a transaction involving such Party; and (c) to terminate\ndiscussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written\nagreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free\nto\nnegotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims\nagainst the other Party or any of the other Party's Representatives arising out of or relating to any transaction or proposed transaction involving the\nother Party.\n10. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future\nexercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or\namended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular\nprovision or provisions being waived or amended.\n11. Remedies. Each Party shall indemnify and hold harmless the other Party and the other Party's Representatives against and from, and shall\ncompensate and reimburse the other Party and the other Party's Representatives for, any damage, loss, claim, liability or expense (including legal\nfees and the cost of enforcing the other Party's rights under this Agreement) arising out of or resulting from any unauthorized use or disclosure\nof\nany of the other Party's Confidential Information or any other breach of this Agreement by such Party or any of its Representatives. Each Party\nacknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party's\nRepresentatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to\nequitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party\nor any of the other Party's Representatives. The indemnification and equitable remedies referred to above will not be deemed to be the exclusive\nremedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event\nof\nlitigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives has breached this\nAgreement, such Party will be liable for, and will pay to the other Party and the other Party's Representatives, the reasonable legal fees incurred by\nthe other Party and the other Party's Representatives in connection with such litigation (including any appeal relating thereto).\n12. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of California (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of California for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth below the name of such Party at the end of this Agreement shall be effective service of\nprocess for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of California; and\n(d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any\naction, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of California has\nbeen brought in an inconvenient forum.\n13. Miscellaneous.\n(a) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(b) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(c) By making Confidential Information or other information available to the Recipient or the Recipient's Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of\ninterest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties' mutual\ndesire,\nintention\nand\nunderstanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality\nof any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection\nthereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the\nfullest extent possible, the applicability of all such privileges or doctrines.\n(e) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof. However, for the avoidance of doubt, the\nParties mutually acknowledge and agree that this Agreement shall not modify, amend, terminate or supersede any obligation of either Party under\nany prior agreement to preserve the confidentiality of non-public information of the other Party that is disclosed for\npurposes unrelated to the consideration or negotiation of a strategic transaction involving the parties, including without limitation any obligations\narising out of that certain Confidentiality Agreement effective October 9, 2003, the Mutual Confidential Disclosure Agreement dated as of January\n7,\n2003, the Confidentiality Agreement effective October 15, 2002, and the Confidentiality Agreement effective June 14, 2001, the BNP Assay\nDevelopment, Manufacture and Supply Agreement effective June 24, 2003, as amended, and the Stroke Assay Development, Manufacture and\nSupply Agreement dated as of June 24, 2003 (collectively, the "Pre-Existing Agreements"). Any disclosures of non-public information for purposes\nunrelated to the consideration or negotiation of a strategic transaction between the Parties shall continue to be subject to the applicable Pre-Existing\nAgreement in accordance with its terms.\n[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have caused this CONFIDENTIALITY AGREEMENT to be executed as of the date first written above.\nBIOSITE INCORPORATED\nBECKMAN COULTER, INC.\nBy:\n/s/ Kim D. Blickenstaff\nBy:\n/s/ Arnold A. Pinkston\nName: Kim D. Blickenstaff\nName: Arnold A. Pinkston\nTitle: Chairman & CEO\nTitle: Senior Vice President & General Counsel\nAddress: 9975 Summers Ridge Road\nAddress: 4300 N. Harbor Blvd.\nSan Diego, CA 92121\nFullerton, CA 92835\nMarch 23, 2007\nSTRICTLY CONFIDENTIAL\nBiosite Incorporated\n9975 Summers Ridge Road\nSan Diego, California 92121\nDear Mr. Blickenstaff:\nThis letter will confirm our agreement in connection with the willingness of Beckman Coulter, Inc. ("Beckman") to proceed with further\ndiscussions regarding a potential transaction between Biosite Incorporated (the "Company.") and Beckman (a "Possible Transaction"). This letter is\nexecuted in connection with, and in reliance upon, the completed consideration by the respective Boards of Directors of each of the Company and\nBeckman of such a Possible Transaction at meetings to be conducted between Friday, March 23, 2007 and Saturday, March 24, 2007.\n1. No Solicitation; No Shop. The Company agrees that from the execution of this letter by the Company through 6:00 A.M. California time on\nMonday, March 26, 2007 (the "Specified Period"), the Company will not, and will cause its Representatives (as hereinafter defined) not to, make any\noutgoing calls or other outgoing communications during the Specified Period to any person that has not first contacted the Company or any of its\nRepresentatives during the Specified Period to directly or indirectly solicit any inquiries or proposals that constitute, or may reasonably be expected\nto lead to, any Acquisition Proposal (as hereinafter defined) (it being understood that, for the avoidance of doubt, nothing in this letter shall prohibit\nor otherwise limit: (a) the Company or any of its Representatives from responding in any manner other than as prohibited by the immediately\nfollowing paragraph to any person that initiates contact with the Company or any of its Representatives during the Specified Period; or (b) the\nCompany or any of its Representatives from continuing business diligence discussions with any person or entity in furtherance of such pre-existing\ndiscussions).\nIn addition, the Company further agrees that during the Specified Period (and otherwise as long as prohibited under the Confidentiality\nAgreement referred to below) it will not directly or indirectly take any action during the Specified Period to disclose to any third party (other than\nthe Company's Representatives) the existence of such bid or the terms or value thereof.\nFor purposes of this letter agreement, "Acquisition Proposal" shall mean any proposal or offer (other than one relating to a Possible\nTransaction) involving the Company or any of its subsidiaries for, or that could be reasonably expected to lead to: (a) any merger, consolidation,\nshare exchange, sale of equity or other equity investment, recapitalization, business combination or other similar transaction involving the Company\nor any of its subsidiaries, (b) any sale, lease, exchange, license, mortgage, pledge, transfer or other disposition of a substantial part of the\nconsolidated assets of the Company and its subsidiaries, or (c) any offer for all or any portion of\nMarch 23, 2007\nPage 2\nthe outstanding shares of capital stock or ownership interests of the Company or any of its subsidiaries. For purposes of this letter agreement, the\nterm "Representatives" shall include the members, directors, managers, officers, employees, agents, affiliates (as such term is defined under\nthe\nSecurities Exchange Act of 1934, as amended), partners and advisors of the Company and those of its subsidiaries, affiliates and/or divisions\n(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors).\n2. Disclosure. Each part to this letter agreement agrees that the existence and terms of this letter constitute "Confidential Information", as such\nterm is defined in the Confidentiality Agreement dated May 11, 2006 between the Company and Beckman, as amended, and any disclosure of such\nConfidential Information shall be subject to the restrictions, terms and conditions of the Confidentiality Agreement.\n3. No Agreement. Each party to this letter agreement agrees that no contract or agreement providing for any Possible Transaction shall\nbe\ndeemed to exist between the parties hereto unless and until a final definitive agreement has been executed and delivered.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter\nagreement shall become a binding agreement among you and us.\nBeckman Coulter, Inc.,\na Delaware corporation\nBy: /s/ Scott Garrett\nName: Scott Garrett\nTitle: President, Chief Executive\nCONFIRMED AND AGREED\nas of the date first written above:\nBiosite Incorporated,\na Delaware corporation\nBy: /s/ Kim D. Blickenstaff\nName: Kim D. Blickenstaff\nTitle: Chairman & CEO	EX-99.(E)(6) 5 dex99e6.htm CONFIDENTIALITY AGREEMENT BY AND BETWEEN BIOSITE INC AND\nBECKMAN COULTER, INC.\nEXHIBIT (e)(6)\nCONFIDENTIALITY AGREEMENT\nTHIS CONFIDENTIALITY A GREEMENT (this “Agreement”) is being entered into as of May 11, 2006, between BIOSITE INCORPORATED\n(“Biosite”), on the one hand, and BECKMAN COULTER, INC. (together with its subsidiaries and affiliates, “Beckman Coulter”), on the other hand.\nIn order to facilitate the consideration and negotiation of a possible strategic transaction involving Biosite and Beckman Coulter (referred to\ncollectively as the “Parties” and individually as a “Party”) separate from the ongoing business relationship between the Parties, each Party has\nrequested access to certain non-public information regarding the other Party and the other Party’s subsidiaries. (Each Party, in its capacity as a\nprovider of information, is referred to in this Agreement as the “Provider”; and each Party, in its capacity as a recipient of information, is referred to\nin this Agreement as the “Recipient.”) This Agreement sets forth the Parties’ obligations regarding the use and disclosure of such information and\nregarding various related matters.\nThe Parties, intending to be legally bound, acknowledge and agree as follows:\n1. Definitions. For purposes of this Agreement:\n(a) a Party’s “Representatives” will be deemed to include each Person that is or becomes: (i) a subsidiary or other affiliate of such Party;\nor (ii) an officer, director, employee, partner, attorney, advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries\nor other affiliates.\n(b) the term “Person,” as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership,\nentity, group, tribunal or governmental authority.\n2. Confidential Information. For purposes of this Agreement, each Provider’s “Confidential Information” will be deemed to include only the\nfollowing:\n(a) any information (including any technology, know-how, patent application, test result, research study, business plan, budget, forecast\nor projection) relating directly or indirectly to the business of the Provider, any predecessor entity or any subsidiary or other affiliate of the Provider\n(whether prepared by the Provider or by any other Person and whether or not in written form) that is or that has been made available to the Recipient\nor any Representative of the Recipient by or on behalf of the Provider or any Representative of the Provider;\n(b) any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has\nbeen prepared by or for the Recipient or any Representative of the Recipient and that contains, reflects, interprets or is based directly or indirectly\nupon any information of the type referred to in clause “(a)” of this sentence;\n(c) the existence and terms of this Agreement, and the fact that information of the type referred to in clause “(a)” of this sentence has\nbeen made available to the Recipient or any of its Representatives; and\n(d) the fact that discussions or negotiations are or may be taking place with respect to a possible transaction involving the Parties, and the\nproposed terms of any such transaction.\nHowever, the Provider’s “Confidential Information” will not be deemed to include:\n(i) any information that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of\nany of such information by the Recipient or by any of the Recipient’s Representatives;\n(ii) any information that was in the Recipient’s possession prior to the time it was first made available to the Recipient or any of\nthe Recipient’s Representatives by or on behalf of the Provider or any of the Provider’s Representatives, provided that the source of such information\nwas not and is not known to the Recipient to be bound by any contractual or other obligation of confidentiality to the Provider or to any other Person\nwith respect to any of such information; or\n(iii) any information that becomes available to the Recipient on a non-confidential basis from a source other than the Provider or\nany of the Provider’s Representatives, provided that such source is not known to the Recipient to be bound by any contractual or other obligation of\nconfidentiality to the Provider or to any other Person with respect to any of such information; or\n(iv) any information that is developed by or on behalf of the Recipient or any of the Recipient’s Representatives without reliance\non the information received from Provider or any of the Provider’s Representatives hereunder, as evidenced by written records.\n3. Limitations on Use and Disclosure of Confidential Information. Subject to section 5 below, neither the Recipient nor any of the\nRecipient’s Representatives will, at any time, directly or indirectly:\n(a) make use of any of the Provider’s Confidential Information, except for the specific purpose of considering, evaluating and\nnegotiating a possible negotiated transaction between the Parties; or\n(b) disclose any of the Provider’s Confidential Information to any other Person.\nThe Recipient will be liable and responsible for any breach of this Agreement by any of its Representatives and for any other action or conduct on\nthe part of any of its Representatives that is inconsistent with any provision of this Agreement. The Recipient will (at its own expense) take all\nactions necessary to restrain its Representatives from making any unauthorized use or disclosure of any of the Provider’s Confidential Information.\n4. No Representations by Provider. The Representatives of each Provider will have the exclusive authority to decide what Confidential\nInformation (if any) of the Provider is to be made available to the Recipient and its Representatives. Neither the Provider nor any of\nthe Provider’s Representatives will be under any obligation to make any particular Confidential Information of the Provider available to the\nRecipient or any of the Recipient’s Representatives or to supplement or update any Confidential Information of the Provider previously furnished.\nNeither the Provider nor any of its Representatives has made or is making any representation or warranty, express or implied, as to the accuracy or\ncompleteness of any of the Provider’s Confidential Information, and neither the Provider nor any of its Representatives will have any liability to the\nRecipient or to any of the Recipient’s Representatives relating to or resulting from the use of any of the Provider’s Confidential Information or any\ninaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any final definitive\nwritten agreement that provides for the consummation of a negotiated transaction between the Parties and is validly executed on behalf of the Parties\n(a “Definitive Agreement”) will have legal effect.\n5. Permitted Disclosures.\n(a) Notwithstanding the limitations set forth in section 3 above:\n(i) the Recipient may disclose Confidential Information of the Provider if and to the extent that the Provider consents in writing\nto the Recipient’s disclosure thereof;\n(ii) subject to section 5(b) below, the Recipient may disclose Confidential Information of the Provider to any Representative of\nthe Recipient, but only to the extent such Representative: (A) needs to know such Confidential Information for the purpose of helping the Recipient\nevaluate or negotiate a possible negotiated transaction between the Parties; and (B) has been informed of the obligations set forth in this Agreement\nand has agreed to abide and be bound by the provisions hereof; and\n(iii) subject to section 5(c) below, the Recipient may disclose Confidential Information of the Provider to the extent required by\napplicable law or governmental regulation or by subpoena or other valid legal process.\n(b) If the Provider delivers to the Recipient a written notice stating that certain Confidential Information of the Provider may be\ndisclosed only to specified Representatives of the Recipient, then, notwithstanding anything to the contrary contained in section 5(a)(ii) above, the\nRecipient shall not thereafter disclose or permit the disclosure of any of such Confidential Information to any other Representative of the Recipient.\n(c) If the Recipient or any of the Recipient’s Representatives is required by applicable law or governmental regulation or by subpoena or\nother valid legal process to disclose any of the Provider’s Confidential Information to any Person, then the Recipient will promptly provide the\nProvider with written notice of the applicable law, regulation or process so that the Provider may seek a protective order or other appropriate remedy.\nThe Recipient and its Representatives will use reasonable efforts to cooperate with the Provider and the Provider’s Representatives in any attempt by\nthe Provider to obtain any such protective order or other remedy. If the Provider elects not to seek, or is unsuccessful in obtaining, any such\nprotective order or other remedy in connection with any requirement that the Recipient disclose\nConfidential Information of the Provider, and if the Recipient has been advised by its internal counsel or other reputable external legal counsel\nconfirming that the disclosure of such Confidential Information is legally required, then the Recipient may disclose such Confidential Information to\nthe extent legally required; provided, however, that the Recipient and its Representatives will use their reasonable efforts to ensure that such\nConfidential Information is treated confidentially by each Person to whom it is disclosed.\n6. Return of Confidential Information. Upon the Provider’s request, the Recipient and the Recipient’s Representatives will promptly deliver\nto the Provider any of the Provider’s Confidential Information (and all copies thereof) obtained or possessed by the Recipient or any of the\nRecipient’s Representatives; provided, however, that, in lieu of delivering to the Provider any written materials of the type described in clause “(b)”\nof the first sentence of section 2 above, the Recipient may destroy such written materials and deliver to the Provider a certificate confirming their\ndestruction. Notwithstanding the delivery to the Provider (or the destruction by the Recipient) of Confidential Information of the Provider pursuant\nto this section 6, the Recipient and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this\nAgreement.\n7. Standstill Provision. During the 18-month period commencing on the date of this Agreement (the “Standstill Period”), neither Beckman\nCoulter nor any entity controlling, controlled by or under common control with Beckman Coulter will, in any manner, directly or indirectly:\n(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Biosite or any securities\nof any subsidiary or other affiliate of Biosite, (ii) any acquisition of any assets of Biosite or any assets of any subsidiary or other affiliate of Biosite,\n(iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary\ntransaction involving Biosite or any subsidiary or other affiliate of Biosite, or involving any securities or assets of Biosite or any securities or assets\nof any subsidiary or other affiliate of Biosite, or (iv) any “solicitation” of “proxies” (as those terms are used in the proxy rules of the Securities and\nExchange Commission) or consents with respect to any securities of Biosite;\n(b) form, join or participate in a “group” (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with\nrespect to the beneficial ownership of any securities of Biosite;\n(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Biosite;\n(d) take any action that might require Biosite to make a public announcement regarding any of the types of matters set forth in clause\n“(a)” of this sentence;\n(e) agree or offer to take, or encourage or propose (publicly or otherwise) the taking of, any action referred to in clause “(a)”, “(b)”, “(c)”\nor “(d)” of this sentence;\n(f) assist, induce or encourage any other Person to take any action of the type referred to in clause “(a)”, “(b)”, “(c)”, “(d)” or “(e)” of\nthis sentence;\n(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or\n(h) request or propose that Biosite or any of Biosite’s Representatives amend, waive or consider the amendment or waiver of any\nprovision set forth in this section 7.\nIn the event that Biosite enters into a definitive agreement with any other Person or entity involving a merger or sale of the majority of the\noutstanding securities or assets of Biosite to a third party, following Biosite’s announcement of such definitive agreement Beckman Coulter shall be\nreleased from any and all of the restrictions and obligations contained in this paragraph; provided, however, that any such release shall not be\ndeemed a waiver of any prior breach under this paragraph.\nThe expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.\n8. Limitation on Soliciting Employees. During the 12-month period commencing on the date of this Agreement, Beckman Coulter will not\npermit any of its Representatives or any subsidiary or affiliate thereof who is or becomes aware of the consideration or negotiation of a possible\ntransaction between the Parties to solicit for employment with such Party or any of its subsidiaries or affiliates any Specified Employee (as defined\nbelow) of Biosite; provided, however, that this section 8 will not prevent Beckman Coulter or any of its Representatives or any subsidiary or affiliate\nthereof from: (a) causing to be placed any general advertisement or similar public notice that is not targeted specifically at employees of Biosite or\nits subsidiaries or affiliates; or (b) engaging any recruiting firm or similar organization to identify or solicit persons for employment on behalf of\nBeckman Coulter, or soliciting the employment of any Specified Employee of Biosite or any of its subsidiaries or affiliates who is identified by any\nsuch recruiting firm or organization, as long as such recruiting firm or organization is not instructed to target any employees of Biosite or its\nsubsidiaries or affiliates. For purposes of this section 8, a person shall be deemed to be a “Specified Employee” of Biosite if: (i) such person is\nemployed by Biosite or by any subsidiary or affiliate of Biosite on the date of this Agreement or becomes employed by Biosite or by any subsidiary\nor affiliate of Biosite during the period in which such Party is continuing to negotiate a possible transaction with the other Party; and (ii) such\nperson’s employment shall not have been involuntarily terminated by Biosite or by a subsidiary or affiliate of Biosite.\n9. No Obligation to Pursue Transaction. Unless the Parties enter into a Definitive Agreement, no agreement providing for a transaction\ninvolving either of the Parties will be deemed to exist between the Parties, and neither Party will be under any obligation to negotiate or enter into\nany such agreement or transaction with the other Party. Each Party reserves the right, in its sole discretion: (a) to conduct any process it deems\nappropriate with respect to any transaction or proposed transaction involving such Party and to modify any procedures relating to any such process\nwithout giving notice to the other Party or any other Person; (b) to reject any\nproposal made by the other Party or any of the other Party’s Representatives with respect to a transaction involving such Party; and (c) to terminate\ndiscussions and negotiations with the other Party at any time. Each Party recognizes that, except as expressly provided in any binding written\nagreement between the Parties that is executed on or after the date of this Agreement: (i) the other Party and its Representatives will be free to\nnegotiate with, and to enter into any agreement or transaction with, any other interested party; and (ii) such Party will not have any rights or claims\nagainst the other Party or any of the other Party’s Representatives arising out of or relating to any transaction or proposed transaction involving the\nother Party.\n10. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this\nAgreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future\nexercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or\namended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular\nprovision or provisions being waived or amended.\n11. Remedies. Each Party shall indemnify and hold harmless the other Party and the other Party’s Representatives against and from, and shall\ncompensate and reimburse the other Party and the other Party’s Representatives for, any damage, loss, claim, liability or expense (including legal\nfees and the cost of enforcing the other Party’s rights under this Agreement) arising out of or resulting from any unauthorized use or disclosure of\nany of the other Party’s Confidential Information or any other breach of this Agreement by such Party or any of its Representatives. Each Party\nacknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Party’s\nRepresentatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to\nequitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party\nor any of the other Party’s Representatives. The indemnification and equitable remedies referred to above will not be deemed to be the exclusive\nremedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties. In the event of\nlitigation relating to this Agreement, if a court of competent jurisdiction determines that either Party or any of its Representatives has breached this\nAgreement, such Party will be liable for, and will pay to the other Party and the other Party’s Representatives, the reasonable legal fees incurred by\nthe other Party and the other Party’s Representatives in connection with such litigation (including any appeal relating thereto).\n12. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each\nParty and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance\nwith the laws of the State of California (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally\nconsents and submits to the jurisdiction of the state and federal courts located in the State of California for purposes of any action, suit or proceeding\narising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by U.S. registered mail to the\naddress set forth below the name of such Party at the end of this Agreement shall be effective service of\nprocess for any such action, suit or proceeding brought against such Party; (c) irrevocably and unconditionally waives any objection to the laying of\nvenue of any action, suit or proceeding arising out of or relating to this Agreement in any state or federal court located in the State of California; and\n(d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any\naction, suit or proceeding arising out of or relating to this Agreement that is brought in any state or federal court located in the State of California has\nbeen brought in an inconvenient forum.\n13. Miscellaneous.\n(a) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into\naccount in the interpretation of this Agreement.\n(b) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the\nvalidity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any\nother situation or in any other jurisdiction.\n(c) By making Confidential Information or other information available to the Recipient or the Recipient’s Representatives, the Provider\nis not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade\nsecret, copyright, trademark or other proprietary or intellectual property right.\n(d) To the extent that any Confidential Information includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any Confidential Information or any pending, threatened or\nprospective action, suit, proceeding, investigation, arbitration or dispute, it is acknowledged and agreed that the Parties have a commonality of\ninterest with respect to such Confidential Information or action, suit, proceeding, investigation, arbitration or dispute and that it is the Parties’ mutual\ndesire, intention and understanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality\nof any of such materials or other information or waive or diminish the continued protection of any of such materials or other information under the\nattorney-client privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Confidential Information that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection\nthereunder and shall be entitled to protection under the joint defense doctrine, and the Parties agree to take all measures necessary to preserve, to the\nfullest extent possible, the applicability of all such privileges or doctrines.\n(e) This Agreement constitutes the entire agreement between the Recipient and the Provider regarding the subject matter hereof and\nsupersedes any prior agreement between the Recipient and the Provider regarding the subject matter hereof. However, for the avoidance of doubt, the\nParties mutually acknowledge and agree that this Agreement shall not modify, amend, terminate or supersede any obligation of either Party under\nany prior agreement to preserve the confidentiality of non-public information of the other Party that is disclosed for\npurposes unrelated to the consideration or negotiation of a strategic transaction involving the parties, including without limitation any obligations\narising out of that certain Confidentiality Agreement effective October 9, 2003, the Mutual Confidential Disclosure Agreement dated as of January 7,\n2003, the Confidentiality Agreement effective October 15, 2002, and the Confidentiality Agreement effective June 14, 2001, the BNP Assay\nDevelopment, Manufacture and Supply Agreement effective June 24, 2003, as amended, and the Stroke Assay Development, Manufacture and\nSupply Agreement dated as of June 24, 2003 (collectively, the “Pre-Existing Agreements”). Any disclosures of non-public information for purposes\nunrelated to the consideration or negotiation of a strategic transaction between the Parties shall continue to be subject to the applicable Pre-Existing\nAgreement in accordance with its terms.\n[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]\nIN WITNESS WHEREOF, the parties have caused this CONFIDENTIALITY AGREEMENT to be executed as of the date first written above.\nBIOSITE INCORPORATED\nBECKMAN COULTER, INC.\nBy: /s/ Kim D. Blickenstaff\nBy: /s/ Arnold A. Pinkston\nName: Kim D. Blickenstaff\nName: Arnold A. Pinkston\nTitle: Chairman & CEO\nTitle: Senior Vice President & General Counsel\nAddress: 9975 Summers Ridge Road\nSan Diego, CA 92121\nAddress: 4300 N. Harbor Blvd.\nFullerton, CA 92835\nMarch 23, 2007\nSTRICTLY CONFIDENTIAL\nBiosite Incorporated\n9975 Summers Ridge Road\nSan Diego, California 92121\nDear Mr. Blickenstaff:\nThis letter will confirm our agreement in connection with the willingness of Beckman Coulter, Inc. (“Beckman”) to proceed with further\ndiscussions regarding a potential transaction between Biosite Incorporated (the “Company”) and Beckman (a “Possible Transaction”). This letter is\nexecuted in connection with, and in reliance upon, the completed consideration by the respective Boards of Directors of each of the Company and\nBeckman of such a Possible Transaction at meetings to be conducted between Friday, March 23, 2007 and Saturday, March 24, 2007.\n1. No Solicitation; No Shop. The Company agrees that from the execution of this letter by the Company through 6:00 A.M. California time on\nMonday, March 26, 2007 (the “Specified Period”), the Company will not, and will cause its Representatives (as hereinafter defined) not to, make any\noutgoing calls or other outgoing communications during the Specified Period to any person that has not first contacted the Company or any of its\nRepresentatives during the Specified Period to directly or indirectly solicit any inquiries or proposals that constitute, or may reasonably be expected\nto lead to, any Acquisition Proposal (as hereinafter defined) (it being understood that, for the avoidance of doubt, nothing in this letter shall prohibit\nor otherwise limit: (a) the Company or any of its Representatives from responding in any manner other than as prohibited by the immediately\nfollowing paragraph to any person that initiates contact with the Company or any of its Representatives during the Specified Period; or (b) the\nCompany or any of its Representatives from continuing business diligence discussions with any person or entity in furtherance of such pre-existing\ndiscussions).\nIn addition, the Company further agrees that during the Specified Period (and otherwise as long as prohibited under the Confidentiality\nAgreement referred to below) it will not directly or indirectly take any action during the Specified Period to disclose to any third party (other than\nthe Company’s Representatives) the existence of such bid or the terms or value thereof.\nFor purposes of this letter agreement, “Acquisition Proposal” shall mean any proposal or offer (other than one relating to a Possible\nTransaction) involving the Company or any of its subsidiaries for, or that could be reasonably expected to lead to: (a) any merger, consolidation,\nshare exchange, sale of equity or other equity investment, recapitalization, business combination or other similar transaction involving the Company\nor any of its subsidiaries, (b) any sale, lease, exchange, license, mortgage, pledge, transfer or other disposition of a substantial part of the\nconsolidated assets of the Company and its subsidiaries, or (c) any offer for all or any portion of\nMarch 23, 2007\nPage 2\nthe outstanding shares of capital stock or ownership interests of the Company or any of its subsidiaries. For purposes of this letter agreement, the\nterm “Representatives” shall include the members, directors, managers, officers, employees, agents, affiliates (as such term is defined under the\nSecurities Exchange Act of 1934, as amended), partners and advisors of the Company and those of its subsidiaries, affiliates and/or divisions\n(including, without limitation, attorneys, accountants, consultants, bankers and financial advisors).\n2. Disclosure. Each part to this letter agreement agrees that the existence and terms of this letter constitute “Confidential Information”, as such\nterm is defined in the Confidentiality Agreement dated May 11, 2006 between the Company and Beckman, as amended, and any disclosure of such\nConfidential Information shall be subject to the restrictions, terms and conditions of the Confidentiality Agreement.\n3. No Agreement. Each party to this letter agreement agrees that no contract or agreement providing for any Possible Transaction shall be\ndeemed to exist between the parties hereto unless and until a final definitive agreement has been executed and delivered.\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter to the undersigned, whereupon this letter\nagreement shall become a binding agreement among you and us.\nBeckman Coulter, Inc.,\na Delaware corporation\nBy: /s/ Scott Garrett\nName: Scott Garrett\nTitle: President, Chief Executive\nCONFIRMED AND AGREED\nas of the date first written above:\nBiosite Incorporated,\na Delaware corporation\nBy: /s/ Kim D. Blickenstaff\nName: Kim D. Blickenstaff\nTitle: Chairman & CEO
+eadddc22aff2d763e0aca8e139846626.pdf	effective_date jurisdiction party term	EX-99.(D)(6) 11 d420719dex99d6.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is made and entered into this 13 day of July, 2012 by and between Avista Capital\nHoldings, LP (“Avista”) and Union Drilling, Inc., a Delaware corporation (“Union”).\nWHEREAS, Avista and Union are prepared to furnish each other with certain information in connection with a possible business transaction\nbetween Union and Avista’s Affiliate (defined below), Sidewinder Drilling, Inc. (the “Transaction”); and\nWHEREAS, in connection with the evaluation of the Transaction, the parties will be receiving, reviewing, and analyzing certain information\nwhich is confidential, proprietary or otherwise not generally available to the public with respect to the other party’s (including its Affiliates) business\noperations and services, the marketing or promotion of products and services, business policies and practices, technical, financial and strategic\ninformation and other matters.\nNOW, THEREFORE, for and in consideration of the premises and the agreements herein contained, the sufficiency of which is hereby\nacknowledged, the parties do hereby agree as follows:\n1. Definitions. As used in this Agreement:\n(a) “Affiliate” means a person, company or entity controlling, controlled by, under common control, or working in concert, with a party;\nprovided that this definition does not include any person who became such without obtaining the consent to assignment required by\nSection 13 of this Agreement.\n(b) “Confidential Information” means all information or materials furnished by the Disclosing Party to the Receiving Party orally, or in\nwritten or electronic form, which is confidential, proprietary, or otherwise not generally available to the public. Notwithstanding the\nforegoing, the following will not constitute Confidential Information for purposes of this Agreement: (i) information which is or\nbecomes generally available to the public other than as a result of a disclosure by the Receiving Party or its Representatives in breach of\nthis Agreement; (ii) information which was known to the Receiving Party on a non-confidential basis prior to being furnished to the\nReceiving Party by the Disclosing Party; (iii) information which becomes available to the Receiving Party on a non-confidential basis\nfrom a source other than the Disclosing Party unless such source was known or could reasonably be determined to be under a\nconfidentiality obligation to the Disclosing Party, and (iv) information that is independently developed by Representatives of the\nReceiving Party who have not had access to the Confidential Information. “Confidential Information” shall also include this Agreement,\nthe fact that information contemplated herein has been made available to either party, and the fact that the parties are contemplating the\nTransaction.\nth\n(c) “Disclosing Party” means the party disclosing Confidential Information to the other party, including any Affiliate of such other party.\n(d) “Receiving Party” means the party receiving Confidential Information from the other party, including any Affiliate of such other party.\n(e) “Representatives” means a party (including an Affiliate of such party) and their respective directors, officers, employees, attorneys,\nadvisors, consultants, funding sources and Sidewinder Drilling and its officers and directors.\n2. Nondisclosure of Confidential Information. The Receiving Party may disclose Confidential Information only to the Receiving Party’s\nRepresentatives, but only if such Representatives need to know the Confidential Information in connection with the evaluation of the\nTransaction. The Receiving Party agrees that (a) such Representatives will be informed by the Receiving Party of the confidential nature of the\nConfidential Information, and (b) the Receiving Party will be responsible for any breach of this Agreement by itself or any of its\nRepresentatives. The Receiving Party shall not disclose the Confidential Information to any person other than as permitted hereby, and shall\nsafeguard the Confidential Information from unauthorized disclosure. The Receiving Party will require its Representatives to use at least the\nsame degree of care to protect the Disclosing Party’s Confidential Information as is used by the Receiving Party in protecting its own\nproprietary and Confidential Information.\n3. Restricted Use. The Confidential Information shall be used solely by the Receiving Party and its Representatives to evaluate and implement\nthe Transaction, and shall not otherwise be used in a manner detrimental to the Disclosing Party.\n4. Notice Preceding Compelled Disclosure. If the Receiving Party or its Representatives are requested or required by legal process to disclose any\nConfidential Information, the Receiving Party shall promptly notify the Disclosing Party of such request or requirement so that the Disclosing\nParty may seek an appropriate protective order or waive compliance with this Agreement. If, In the absence of a protective order or the receipt\nof a waiver hereunder, the Receiving Party or its Representatives are compelled to disclose the Confidential Information, the Receiving Party\nand its Representatives may disclose only such of the Confidential Information to the party compelling disclosure as is required by law and, in\nconnection with such compelled disclosure, the Receiving Party shall use commercially reasonable efforts to obtain from the party to whom\ndisclosure is made written assurance that confidential treatment will be accorded to such portion of the Confidential Information as is\ndisclosed.\n5. Return of Information. Upon the Disclosing Party’s request, the Receiving Party and its Representatives shall promptly deliver to the\nDisclosing Party or destroy (at the Disclosing Party’s election) all Confidential Information and all copies of any analyses, compilations,\nstudies or other documents prepared for use in connection with the Receiving Party’s consideration of a Transaction containing or including\nany\n2\nConfidential Information, in each case without retaining, in whole or in part, any copies, extracts or other reproductions (whatever the form or\nstorage medium) of such materials, except that the Receiving Party and its Representatives (a) may retain any attorney work product created in\nconnection with the Receiving Party’s consideration of the Transaction, (b) may retain one set of Confidential Information to the extent\nrequired to comply with law or governmental regulations and (c) will not be obligated to erase any Confidential Information that is contained\nin an archived computer system backup in accordance with the Receiving Party’s or its Representatives’ security and/or disaster recovery\nprocedures; provided, however, that any such Confidential Information retained under this Section shall continue to be subject to the terms of\nthis Agreement. Following such request, the Receiving Party will promptly provide the Disclosing Party with written confirmation from an\nauthorized officer who has supervised the Receiving Party’s compliance with this paragraph that confirms such compliance.\n6. No Waiver. No failure or delay in exercising any right, power, or privilege hereunder will operate as a waiver thereof nor will any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege hereunder.\n7. Remedies. The parties acknowledges and agree that money damages would not be a sufficient remedy for any breach of this Agreement, and\nthe parties further acknowledge and agree that the non-breaching party will be entitled to seek specific performance and injunctive relief as\nremedies for any such breach. Such remedies will not be deemed to be the exclusive remedies for a breach of this Agreement but will be in\naddition to all other remedies available at law or in equity.\n8. Termination. This Agreement shall terminate, and all provisions hereof shall be of no further force or effect, one year from the date of this\nAgreement, unless either party terminates it earlier by providing a written termination notice to the other party; provided, however, that if this\nAgreement is so terminated by either party, this Agreement will continue to apply to any Confidential Information disclosed hereunder\n(including Confidential Information returned or destroyed) prior to the other party’s receipt of the termination notice until the end of the one-\nyear term. Each party further acknowledges and agrees that each party reserves the right, in its sole discretion and at any time, to reject any and\nall proposals made by the other party or any of its Representatives or any other party with regard to a Transaction and to terminate discussions\nand negotiations hereunder. If either party decides that it does not wish to proceed with a Transaction, such party shall promptly notify the\nother party of that decision.\n9. Nonsolicitation. The Receiving Party agrees that for a period of one year neither it nor its Affiliates who receive confidential information shall\ndirectly or indirectly initiate the solicitation of, without the consent of the Disclosing Party, (a) any executive officer of the Disclosing Party or\nof any of its Affiliates or (b) any employee of the Disclosing Party or any of its Affiliates actively engaged in the review of the Transaction for\nemployment, advisory or consulting work; provided, however, neither party shall be prohibited from (x) employing or otherwise working with\nany such person who contacts\n3\nsuch party solely on his or her own initiative and without direct or indirect solicitation by such party, (y) conducting general solicitations for\nemployees or general contractors (which solicitations are not specifically targeted at the other party’s employees) through the use of media\nadvertisements, professional search firms or otherwise, or (z) employing employees who are paid on an hourly basis.\n10. Right to Disclose. The Disclosing Party represents and warrants to the Receiving Party that it has the right to disclose the Confidential\nInformation to the Receiving Party.\n11. No Obligation or Joint Venture. The parties hereto understand and agree that unless and until a definitive agreement has been executed and\ndelivered, no contract or agreement providing for the Transaction between the parties shall be deemed to exist between the parties, and neither\nparty will be under any legal obligation of any kind whatsoever with respect to such transaction by virtue of this or any written or oral\nexpression thereof, except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this Agreement, the\nterm “definitive agreement” does not include an executed letter of intent or any other preliminary written agreement or offer, unless\nspecifically so designated in writing and executed by both parties.\n12. No Warranty. BY EXECUTING THIS AGREEMENT, AND EXCEPT AS PROVIDED IN SECTION 10 ABOVE, THE DISCLOSING\nPARTY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO, OR IN\nANY WAY WITH RESPECT OR IN CONNECTION WITH ANY INFORMATION MADE AVAILABLE HEREUNDER. ACCORDINGLY,\nTHE RECEIVING PARTY WILL RELY SOLELY UPON ITS INDEPENDENT EXAMINATION AND ASSESSMENT OF THE\nCONFIDENTIAL INFORMATION IN EVALUATING THE TRANSACTION.\n13. Assignment. Neither party may assign this Agreement, or any rights hereunder, without the prior written consent of the other party, which\nconsent may be granted or withheld in the sole and absolute discretion of the non-assigning party.\n14. Miscellaneous. This Agreement inures to the benefit of, and is binding upon, both parties, and their successors and assigns, subject to the\nlimitations on assignment as set forth in Section 13 above. This Agreement constitutes the entire agreement between the parties with respect to\nthe subject matter hereof. The headings of the Sections of this Agreement are inserted for convenience only and do not constitute a part hereof\nor affect in any way the meaning or interpretation of this Agreement. If any provision of this Agreement is found to be invalid, illegal or\nunenforceable, such provision shall be modified or severed to the extent necessary to reflect the fullest legal and enforceable expression of the\nintent of the parties. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF\nTHE STATE OF TEXAS APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WITHIN SUCH STATE WITHOUT\nREGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF. Each party hereto agrees that the prevailing party in any action or\nproceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be entitled to recover its reasonable fees\nand expenses in connection therewith, including legal fees.\n4\n15. Counterparts. This Agreement may be executed in one or more counterparts (including by means of telecopied signature pages or signature\npages delivered by electronic transmission in portable document format (pdf)), all of which taken together shall constitute one and the same\ninstrument. This Agreement to the extent signed and delivered by means of a facsimile machine or electronic pdf transmission, shall be treated\nin all manner and respects as an original instrument and shall be considered to have the same binding legal effect as if it were the original\nsigned version thereof delivered in person. At the request of any party hereto, the other party shall re-execute original forms thereof and deliver\nthem to such other party. No party hereto or to any such instrument shall raise the use of a facsimile machine or electronic pdf transmission to\ndeliver a signature or the fact that any signature or instrument was transmitted or communicated through the use of a facsimile machine or\nelectronic pdf transmission as a defense to the formation of a contract and each party forever waives any such defense, except to the extent\nsuch defense relates to lack of authenticity.\n[Signatures on following page]\n5\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.\nAVISTA CAPITAL HOLDINGS, LP\nBy: /s/ Jeff Gunst\nIts: Jeff Gunst\nAuthorized Signatory\nUNION DRILLING INC.\nBy: /s/ Christopher D. Strong\nChristopher D. Strong, President & CEO\n6	EX-99.(D)(6) 11 d420719dex99d6.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is made and entered into this 13t day of July, 2012 by and between Avista Capital\nHoldings, LP (“Avista”) and Union Drilling, Inc., a Delaware corporation (“Union™).\nWHEREAS, Avista and Union are prepared to furnish each other with certain information in connection with a possible business transaction\nbetween Union and Avista’s Affiliate (defined below), Sidewinder Drilling, Inc. (the “Transaction”); and\nWHEREAS, in connection with the evaluation of the Transaction, the parties will be receiving, reviewing, and analyzing certain information\nwhich is confidential, proprietary or otherwise not generally available to the public with respect to the other party’s (including its Affiliates) business\noperations and services, the marketing or promotion of products and services, business policies and practices, technical, financial and strategic\ninformation and other matters.\nNOW, THEREFORE, for and in consideration of the premises and the agreements herein contained, the sufficiency of which is hereby\nacknowledged, the parties do hereby agree as follows:\n1. Definitions. As used in this Agreement:\n(a) “Affiliate” means a person, company or entity controlling, controlled by, under common control, or working in concert, with a party;\nprovided that this definition does not include any person who became such without obtaining the consent to assignment required by\nSection 13 of this Agreement.\n(b) “Confidential Information” means all information or materials furnished by the Disclosing Party to the Receiving Party orally, or in\nwritten or electronic form, which is confidential, proprietary, or otherwise not generally available to the public. Notwithstanding the\nforegoing, the following will not constitute Confidential Information for purposes of this Agreement: (i) information which is or\nbecomes generally available to the public other than as a result of a disclosure by the Receiving Party or its Representatives in breach of\nthis Agreement; (ii) information which was known to the Receiving Party on a non-confidential basis prior to being furnished to the\nReceiving Party by the Disclosing Party; (iii) information which becomes available to the Receiving Party on a non-confidential basis\nfrom a source other than the Disclosing Party unless such source was known or could reasonably be determined to be under a\nconfidentiality obligation to the Disclosing Party, and (iv) information that is independently developed by Representatives of the\nReceiving Party who have not had access to the Confidential Information. “Confidential Information” shall also include this Agreement,\nthe fact that information contemplated herein has been made available to either party, and the fact that the parties are contemplating the\nTransaction.\n(c) “Disclosing Party” means the party disclosing Confidential Information to the other party, including any Affiliate of such other party.\n(d) “Receiving Party” means the party receiving Confidential Information from the other party, including any Affiliate of such other party.\n(e) “Representatives” means a party (including an Affiliate of such party) and their respective directors, officers, employees, attorneys,\nadvisors, consultants, funding sources and Sidewinder Drilling and its officers and directors.\nNondisclosure of Confidential Information. The Receiving Party may disclose Confidential Information only to the Receiving Party’s\nRepresentatives, but only if such Representatives need to know the Confidential Information in connection with the evaluation of the\nTransaction. The Receiving Party agrees that (a) such Representatives will be informed by the Receiving Party of the confidential nature of the\nConfidential Information, and (b) the Receiving Party will be responsible for any breach of this Agreement by itself or any of its\nRepresentatives. The Receiving Party shall not disclose the Confidential Information to any person other than as permitted hereby, and shall\nsafeguard the Confidential Information from unauthorized disclosure. The Receiving Party will require its Representatives to use at least the\nsame degree of care to protect the Disclosing Party’s Confidential Information as is used by the Receiving Party in protecting its own\nproprietary and Confidential Information.\nRestricted Use. The Confidential Information shall be used solely by the Receiving Party and its Representatives to evaluate and implement\nthe Transaction, and shall not otherwise be used in a manner detrimental to the Disclosing Party.\nNotice Preceding Compelled Disclosure. If the Receiving Party or its Representatives are requested or required by legal process to disclose any\nConfidential Information, the Receiving Party shall promptly notify the Disclosing Party of such request or requirement so that the Disclosing\nParty may seek an appropriate protective order or waive compliance with this Agreement. If, In the absence of a protective order or the receipt\nof a waiver hereunder, the Receiving Party or its Representatives are compelled to disclose the Confidential Information, the Receiving Party\nand its Representatives may disclose only such of the Confidential Information to the party compelling disclosure as is required by law and, in\nconnection with such compelled disclosure, the Receiving Party shall use commercially reasonable efforts to obtain from the party to whom\ndisclosure is made written assurance that confidential treatment will be accorded to such portion of the Confidential Information as is\ndisclosed.\n \nReturn of Information. Upon the Disclosing Party’s request, the Receiving Party and its Representatives shall promptly deliver to the\nDisclosing Party or destroy (at the Disclosing Party’s election) all Confidential Information and all copies of any analyses, compilations,\nstudies or other documents prepared for use in connection with the Receiving Party’s consideration of a Transaction containing or including\nany\nConfidential Information, in each case without retaining, in whole or in part, any copies, extracts or other reproductions (whatever the form or\nstorage medium) of such materials, except that the Receiving Party and its Representatives (a) may retain any attorney work product created in\nconnection with the Receiving Party’s consideration of the Transaction, (b) may retain one set of Confidential Information to the extent\nrequired to comply with law or governmental regulations and (c) will not be obligated to erase any Confidential Information that is contained\nin an archived computer system backup in accordance with the Receiving Party’s or its Representatives’ security and/or disaster recovery\nprocedures; provided, however, that any such Confidential Information retained under this Section shall continue to be subject to the terms of\nthis Agreement. Following such request, the Receiving Party will promptly provide the Disclosing Party with written confirmation from an\nauthorized officer who has supervised the Receiving Party’s compliance with this paragraph that confirms such compliance.\nNo Waiver. No failure or delay in exercising any right, power, or privilege hereunder will operate as a waiver thereof nor will any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege hereunder.\nRemedies. The parties acknowledges and agree that money damages would not be a sufficient remedy for any breach of this Agreement, and\nthe parties further acknowledge and agree that the non-breaching party will be entitled to seek specific performance and injunctive relief as\nremedies for any such breach. Such remedies will not be deemed to be the exclusive remedies for a breach of this Agreement but will be in\naddition to all other remedies available at law or in equity.\nTermination. This Agreement shall terminate, and all provisions hereof shall be of no further force or effect, one year from the date of this\nAgreement, unless either party terminates it earlier by providing a written termination notice to the other party; provided, however, that if this\nAgreement is so terminated by either party, this Agreement will continue to apply to any Confidential Information disclosed hereunder\n(including Confidential Information returned or destroyed) prior to the other party’s receipt of the termination notice until the end of the one-\nyear term. Each party further acknowledges and agrees that each party reserves the right, in its sole discretion and at any time, to reject any and\nall proposals made by the other party or any of its Representatives or any other party with regard to a Transaction and to terminate discussions\nand negotiations hereunder. If either party decides that it does not wish to proceed with a Transaction, such party shall promptly notify the\nother party of that decision.\nNonsolicitation. The Receiving Party agrees that for a period of one year neither it nor its Affiliates who receive confidential information shall\ndirectly or indirectly initiate the solicitation of, without the consent of the Disclosing Party, (a) any executive officer of the Disclosing Party or\nof any of its Affiliates or (b) any employee of the Disclosing Party or any of its Affiliates actively engaged in the review of the Transaction for\nemployment, advisory or consulting work; provided, however, neither party shall be prohibited from (x) employing or otherwise working with\nany such person who contacts\n10. 11. 12. 13. 14. such party solely on his or her own initiative and without direct or indirect solicitation by such party, (y) conducting general solicitations for\nemployees or general contractors (which solicitations are not specifically targeted at the other party’s employees) through the use of media\nadvertisements, professional search firms or otherwise, or (z) employing employees who are paid on an hourly basis.\nRight to Disclose. The Disclosing Party represents and warrants to the Receiving Party that it has the right to disclose the Confidential\nInformation to the Receiving Party.\nNo Obligation or Joint Venture. The parties hereto understand and agree that unless and until a definitive agreement has been executed and\ndelivered, no contract or agreement providing for the Transaction between the parties shall be deemed to exist between the parties, and neither\nparty will be under any legal obligation of any kind whatsoever with respect to such transaction by virtue of this or any written or oral\nexpression thereof, except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this Agreement, the\nterm “definitive agreement” does not include an executed letter of intent or any other preliminary written agreement or offer, unless\nspecifically so designated in writing and executed by both parties.\nNo Warranty. BY EXECUTING THIS AGREEMENT, AND EXCEPT AS PROVIDED IN SECTION 10 ABOVE, THE DISCLOSING\nPARTY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO, OR IN\nANY WAY WITH RESPECT OR IN CONNECTION WITH ANY INFORMATION MADE AVAILABLE HEREUNDER. ACCORDINGLY,\nTHE RECEIVING PARTY WILL RELY SOLELY UPON ITS INDEPENDENT EXAMINATION AND ASSESSMENT OF THE\nCONFIDENTIAL INFORMATION IN EVALUATING THE TRANSACTION.\nAssignment. Neither party may assign this Agreement, or any rights hereunder, without the prior written consent of the other party, which\nconsent may be granted or withheld in the sole and absolute discretion of the non-assigning party.\nMiscellaneous. This Agreement inures to the benefit of, and is binding upon, both parties, and their successors and assigns, subject to the\nlimitations on assignment as set forth in Section 13 above. This Agreement constitutes the entire agreement between the parties with respect to\nthe subject matter hereof. The headings of the Sections of this Agreement are inserted for convenience only and do not constitute a part hereof\nor affect in any way the meaning or interpretation of this Agreement. If any provision of this Agreement is found to be invalid, illegal or\nunenforceable, such provision shall be modified or severed to the extent necessary to reflect the fullest legal and enforceable expression of the\nintent of the parties. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF\nTHE STATE OF TEXAS APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WITHIN SUCH STATE WITHOUT\nREGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF. Each party hereto agrees that the prevailing party in any action or\nproceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be entitled to recover its reasonable fees\nand expenses in connection therewith, including legal fees.\n15. Counterparts. This Agreement may be executed in one or more counterparts (including by means of telecopied signature pages or signature\npages delivered by electronic transmission in portable document format (pdf)), all of which taken together shall constitute one and the same\ninstrument. This Agreement to the extent signed and delivered by means of a facsimile machine or electronic pdf transmission, shall be treated\nin all manner and respects as an original instrument and shall be considered to have the same binding legal effect as if it were the original\nsigned version thereof delivered in person. At the request of any party hereto, the other party shall re-execute original forms thereof and deliver\nthem to such other party. No party hereto or to any such instrument shall raise the use of a facsimile machine or electronic pdf transmission to\ndeliver a signature or the fact that any signature or instrument was transmitted or communicated through the use of a facsimile machine or\nelectronic pdf transmission as a defense to the formation of a contract and each party forever waives any such defense, except to the extent\nsuch defense relates to lack of authenticity.\n[Signatures on following page]\n5\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.\nAVISTA CAPITAL HOLDINGS, LP\nBy:  /s/ Jeff Gunst\nIts: Jeff Gunst\nAuthorized Signatory\nUNION DRILLING INC.\nBy:  /s/ Christopher D. Strong\nChristopher D. Strong, President & CEO	EX-99.(D)(6) 11 420719dex99d6.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this "Agreement") is made and entered into this 13th day of July, 2012 by and between Avista Capital\nHoldings, LP ("Avista") and Union Drilling, Inc., a Delaware corporation ("Union").\nWHEREAS, Avista and Union are prepared to furnish each other with certain information in connection with a possible business transaction\nbetween Union and Avista's Affiliate (defined below), Sidewinder Drilling, Inc. (the "Transaction"); and\nWHEREAS, in connection with the evaluation of the Transaction, the parties will be receiving, reviewing, and analyzing certain information\nwhich is confidential, proprietary or otherwise not generally available to the public with respect to the other party's (including its Affiliates) business\noperations and services, the marketing or promotion of products and services, business policies and practices, technical, financial and strategic\ninformation and other matters.\nNOW, THEREFORE, for and in consideration of the premises and the agreements herein contained, the sufficiency of which is hereby\nacknowledged, the parties do hereby agree as follows:\n1.\nDefinitions. As used in this Agreement:\n(a)\n"Affiliate" means a person, company or entity controlling, controlled by, under common control, or working in concert, with a party;\nprovided that this definition does not include any person who became such without obtaining the consent to assignment required by\nSection 13 of this Agreement.\n(b) "Confidential Information" means all information or materials furnished by the Disclosing Party to the Receiving Party orally, or in\nwritten or electronic form, which is confidential, proprietary, or otherwise not generally available to the public. Notwithstanding the\nforegoing, the following will not constitute Confidential Information for purposes of this Agreement: (i) information which is or\nbecomes generally available to the public other than as a result of a disclosure by the Receiving Party or its Representatives in breach of\nthis Agreement; (ii) information which was known to the Receiving Party on a non-confidential basis prior to being furnished to the\nReceiving Party by the Disclosing Party; (iii) information which becomes available to the Receiving Party on a non-confidential basis\nfrom a source other than the Disclosing Party unless such source was known or could reasonably be determined to be under a\nconfidentiality obligation to the Disclosing Party, and (iv) information that is independently developed by Representatives of the\nReceiving Party who have not had access to the Confidential Information. "Confidential Information" shall also include this Agreement,\nthe fact that information contemplated herein has been made available to either party, and the fact that the parties are contemplating the\nTransaction.\n(c)\n"Disclosing Party" means the party disclosing Confidential Information to the other party, including any Affiliate of such other party.\n(d)\n"Receiving Party" means the party receiving Confidential Information from the other party, including any Affiliate of such other party.\n(e)\n"Representatives" means a party (including an Affiliate of such party) and their respective directors, officers, employees, attorneys,\nadvisors, consultants, funding sources and Sidewinder Drilling and its officers and directors.\n2.\nNondisclosure of Confidential Information The Receiving Party may disclose Confidential Information only to the Receiving Party's\nRepresentatives, but only if such Representatives need to know the Confidential Information in connection with the evaluation of the\nTransaction. The Receiving Party agrees that (a) such Representatives will be informed by the Receiving Party of the confidentia nature of the\nConfidential Information, and (b) the Receiving Party will be responsible for any breach of this Agreement by itself or any of its\nRepresentatives. The Receiving Party shall not disclose the Confidential Information to any person other than as permitted hereby, and shall\nsafeguard the Confidential Information from unauthorized disclosure. The Receiving Party will require its Representatives to use at least the\nsame degree of care to protect the Disclosing Party's Confidential Information as is used by the Receiving Party in protecting its own\nproprietary and Confidential Information.\n3.\nRestricted Use The Confidential Information shall be used solely by the Receiving Party and its Representatives to evaluate and implement\nthe Transaction, and shall not otherwise be used in a manner detrimental to the Disclosing Party.\n4.\nNotice Preceding Compelled Disclosure. If the Receiving Party or its Representatives are requested or required by legal process to disclose any\nConfidential Information, the Receiving Party shall promptly notify the Disclosing Party of such request or requirement SO that the Disclosing\nParty may seek an appropriate protective order or waive compliance with this Agreement. If, In the absence of a protective order or the receipt\nof\na\nwaiver hereunder, the Receiving Party or its Representatives are compelled to disclose the Confidential Information, the Receiving Party\nand its Representatives may disclose only such of the Confidential Information to the party compelling disclosure as is required by law and, in\nconnection with such compelled disclosure, the Receiving Party shall use commercially reasonable efforts to obtain from the party to whom\ndisclosure is made written assurance that confidential treatment will be accorded to such portion of the Confidential Information as is\ndisclosed.\n5.\nReturn of Information. Upon the Disclosing Party's request, the Receiving Party and its Representatives shall promptly deliver to the\nDisclosing Party or destroy (at the Disclosing Party's election) all Confidential Information and all copies of any analyses, compilations,\nstudies or other documents prepared for use in connection with the Receiving Party's consideration of a Transaction containing or including\nany\n2\nConfidential Information, in each case without retaining, in whole or in part, any copies, extracts or other reproductions (whatever the form or\nstorage medium) of such materials, except that the Receiving Party and its Representatives (a) may retain any attorney work product created in\nconnection with the Receiving Party's consideration of the Transaction, (b) may retain one set of Confidential Information to the extent\nrequired to comply with law or governmental regulations and (c) will not be obligated to erase any Confidential Information that is contained\nin an archived computer system backup in accordance with the Receiving Party's or its Representatives' security and/or disaster recovery\nprocedures; provided, however, that any such Confidential Information retained under this Section shall continue to be subject to the terms of\nthis Agreement. Following such request, the Receiving Party will promptly provide the Disclosing Party with written confirmation from an\nauthorized officer who has supervised the Receiving Party's compliance with this paragraph that confirms such compliance.\n6.\nNo Waiver. No failure or delay in exercising any right, power, or privilege hereunder will operate as a waiver thereof nor will any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege hereunder.\n7.\nRemedies. The parties acknowledges and agree that money damages would not be a sufficient remedy for any breach of this Agreement, and\nthe parties further acknowledge and agree that the non-breaching party will be entitled to seek specific performance and injunctive relief as\nremedies for any such breach. Such remedies will not be deemed to be the exclusive remedies for a breach of this Agreement but will be in\naddition to all other remedies available at law or in equity.\n8.\nTermination. This Agreement shall terminate, and all provisions hereof shall be of no further force or effect, one year from the date of this\nAgreement, unless either party terminates it earlier by providing a written termination notice to the other party; provided, however, that if this\nAgreement is so terminated by either party, this Agreement will continue to apply to any Confidential Information disclosed hereunder\n(including Confidential Information returned or destroyed) prior to the other party's receipt of the termination notice until the end of the one-\nyear term. Each party further acknowledges and agrees that each party reserves the right, in its sole discretion and at any time, to reject any and\nall proposals made by the other party or any of its Representatives or any other party with regard to a Transaction and to terminate discussions\nand negotiations hereunder. If either party decides that it does not wish to proceed with a Transaction, such party shall promptly notify the\nother party of that decision.\n9.\nNonsolicitation. The Receiving Party agrees that for a period of one year neither it nor its Affiliates who receive confidential information shall\ndirectly or indirectly initiate the solicitation of, without the consent of the Disclosing Party, (a) any executive officer of the Disclosing Party\nor\nof any of its Affiliates or (b) any employee of the Disclosing Party or any of its Affiliates actively engaged in the review of the Transaction for\nemployment, advisory or consulting work; provided, however, neither party shall be prohibited from (x) employing or otherwise working with\nany such person who contacts\n3\nsuch party solely on his or her own initiative and without direct or indirect solicitation by such party, (y) conducting general solicitations for\nemployees or general contractors (which solicitations are not specifically targeted at the other party's employees) through the use of media\nadvertisements, professional search firms or otherwise, or (z) employing employees who are paid on an hourly basis.\n10. Right to Disclose. The Disclosing Party represents and warrants to the Receiving Party that it has the right to disclose the Confidential\nInformation to the Receiving Party.\n11.\nNo Obligation or Joint Venture. The parties hereto understand and agree that unless and until a definitive agreement has been executed and\ndelivered, no contract or agreement providing for the Transaction between the parties shall be deemed to exist between the parties, and neither\nparty will be under any legal obligation of any kind whatsoever with respect to such transaction by virtue of this or any written or oral\nexpression thereof, except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this Agreement, the\nterm "definitive agreement" does not include an executed letter of intent or any other preliminary written agreement or offer, unless\nspecifically So designated in writing and executed by both parties.\n12. No Warranty. BY EXECUTING THIS AGREEMENT, AND EXCEPT AS PROVIDED IN SECTION 10 ABOVE, THE DISCLOSING\nPARTY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO, OR IN\nANY WAY WITH RESPECT OR IN CONNECTION WITH ANY INFORMATION MADE AVAILABLE HEREUNDER. ACCORDINGLY,\nTHE RECEIVING PARTY WILL RELY SOLELY UPON ITS INDEPENDENT EXAMINATION AND ASSESSMENT OF THE\nCONFIDENTIAL INFORMATION IN EVALUATING THE TRANSACTION.\n13.\nAssignment. Neither party may assign this Agreement, or any rights hereunder, without the prior written consent of the other party, which\nconsent may be granted or withheld in the sole and absolute discretion of the non-assigning party.\n14.\nMiscellaneous. This Agreement inures to the benefit of, and is binding upon, both parties, and their successors and assigns, subject to the\nlimitations on assignment as set forth in Section 13 above. This Agreement constitutes the entire agreement between the parties with respect to\nthe subject matter hereof. The headings of the Sections of this Agreement are inserted for convenience only and do not constitute a part\nhereof\nor affect in any way the meaning or interpretation of this Agreement. If any provision of this Agreement is found to be invalid, illegal or\nunenforceable, such provision shall be modified or severed to the extent necessary to reflect the fullest legal and enforceable expression of the\nintent of the parties. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF\nTHE STATE OF TEXAS APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WITHIN SUCH STATE WITHOUT\nREGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF. Each party hereto agrees that the prevailing party in any action or\nproceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be entitled to recover its reasonable fees\nand expenses in connection therewith, including legal fees.\n4\n15. Counterparts. This Agreement may be executed in one or more counterparts (including by means of telecopied signature pages or signature\npages delivered by electronic transmission in portable document format (pdf)), all of which taken together shall constitute one and the same\ninstrument. This Agreement to the extent signed and delivered by means of a facsimile machine or electronic pdf transmission, shall be treated\nin all manner and respects as an original instrument and shall be considered to have the same binding legal effect as if it were the original\nsigned version thereof delivered in person. At the request of any party hereto, the other party shall re-execute original forms thereof and deliver\nthem to such other party. No party hereto or to any such instrument shall raise the use of a facsimile machine or electronic pdf transmission to\ndeliver a signature or the fact that any signature or instrument was transmitted or communicated through the use of a facsimile machine or\nelectronic pdf transmission as a defense to the formation of a contract and each party forever waives any such defense, except to the extent\nsuch defense relates to lack of authenticity.\n[Signatures on following page]\n5\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.\nAVISTA CAPITAL HOLDINGS, LP\nBy:\n/s/ Jeff Gunst\nIts: Jeff Gunst\nAuthorized Signatory\nUNION DRILLING INC.\nBy:\n/s/ Christopher D. Strong\nChristopher D. Strong, President & CEO\n6	EX-99.(D)(6) 11 d420719dex99d6.htm CONFIDENTIALITY AGREEMENT\nExhibit (d)(6)\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement (this “Agreement”) is made and entered into this 13 day of July, 2012 by and between Avista Capital\nHoldings, LP (“Avista”) and Union Drilling, Inc., a Delaware corporation (“Union”).\nWHEREAS, Avista and Union are prepared to furnish each other with certain information in connection with a possible business transaction\nbetween Union and Avista’s Affiliate (defined below), Sidewinder Drilling, Inc. (the “Transaction”); and\nWHEREAS, in connection with the evaluation of the Transaction, the parties will be receiving, reviewing, and analyzing certain information\nwhich is confidential, proprietary or otherwise not generally available to the public with respect to the other party’s (including its Affiliates) business\noperations and services, the marketing or promotion of products and services, business policies and practices, technical, financial and strategic\ninformation and other matters.\nNOW, THEREFORE, for and in consideration of the premises and the agreements herein contained, the sufficiency of which is hereby\nacknowledged, the parties do hereby agree as follows:\n1. Definitions. As used in this Agreement:\n(a) “Affiliate” means a person, company or entity controlling, controlled by, under common control, or working in concert, with a party;\nprovided that this definition does not include any person who became such without obtaining the consent to assignment required by\nSection 13 of this Agreement.\n(b) “Confidential Information” means all information or materials furnished by the Disclosing Party to the Receiving Party orally, or in\nwritten or electronic form, which is confidential, proprietary, or otherwise not generally available to the public. Notwithstanding the\nforegoing, the following will not constitute Confidential Information for purposes of this Agreement: (i) information which is or\nbecomes generally available to the public other than as a result of a disclosure by the Receiving Party or its Representatives in breach of\nthis Agreement; (ii) information which was known to the Receiving Party on a non-confidential basis prior to being furnished to the\nReceiving Party by the Disclosing Party; (iii) information which becomes available to the Receiving Party on a non-confidential basis\nfrom a source other than the Disclosing Party unless such source was known or could reasonably be determined to be under a\nconfidentiality obligation to the Disclosing Party, and (iv) information that is independently developed by Representatives of the\nReceiving Party who have not had access to the Confidential Information. “Confidential Information” shall also include this Agreement,\nthe fact that information contemplated herein has been made available to either party, and the fact that the parties are contemplating the\nTransaction.\nth\n(c) “Disclosing Party” means the party disclosing Confidential Information to the other party, including any Affiliate of such other party.\n(d) “Receiving Party” means the party receiving Confidential Information from the other party, including any Affiliate of such other party.\n(e) “Representatives” means a party (including an Affiliate of such party) and their respective directors, officers, employees, attorneys,\nadvisors, consultants, funding sources and Sidewinder Drilling and its officers and directors.\n2. Nondisclosure of Confidential Information. The Receiving Party may disclose Confidential Information only to the Receiving Party’s\nRepresentatives, but only if such Representatives need to know the Confidential Information in connection with the evaluation of the\nTransaction. The Receiving Party agrees that (a) such Representatives will be informed by the Receiving Party of the confidential nature of the\nConfidential Information, and (b) the Receiving Party will be responsible for any breach of this Agreement by itself or any of its\nRepresentatives. The Receiving Party shall not disclose the Confidential Information to any person other than as permitted hereby, and shall\nsafeguard the Confidential Information from unauthorized disclosure. The Receiving Party will require its Representatives to use at least the\nsame degree of care to protect the Disclosing Party’s Confidential Information as is used by the Receiving Party in protecting its own\nproprietary and Confidential Information.\n3. Restricted Use. The Confidential Information shall be used solely by the Receiving Party and its Representatives to evaluate and implement\nthe Transaction, and shall not otherwise be used in a manner detrimental to the Disclosing Party.\n4. Notice Preceding Compelled Disclosure. If the Receiving Party or its Representatives are requested or required by legal process to disclose any\nConfidential Information, the Receiving Party shall promptly notify the Disclosing Party of such request or requirement so that the Disclosing\nParty may seek an appropriate protective order or waive compliance with this Agreement. If, In the absence of a protective order or the receipt\nof a waiver hereunder, the Receiving Party or its Representatives are compelled to disclose the Confidential Information, the Receiving Party\nand its Representatives may disclose only such of the Confidential Information to the party compelling disclosure as is required by law and, in\nconnection with such compelled disclosure, the Receiving Party shall use commercially reasonable efforts to obtain from the party to whom\ndisclosure is made written assurance that confidential treatment will be accorded to such portion of the Confidential Information as is\ndisclosed.\n5. Return of Information. Upon the Disclosing Party’s request, the Receiving Party and its Representatives shall promptly deliver to the\nDisclosing Party or destroy (at the Disclosing Party’s election) all Confidential Information and all copies of any analyses, compilations,\nstudies or other documents prepared for use in connection with the Receiving Party’s consideration of a Transaction containing or including\nany\n2\nConfidential Information, in each case without retaining, in whole or in part, any copies, extracts or other reproductions (whatever the form or\nstorage medium) of such materials, except that the Receiving Party and its Representatives (a) may retain any attorney work product created in\nconnection with the Receiving Party’s consideration of the Transaction, (b) may retain one set of Confidential Information to the extent\nrequired to comply with law or governmental regulations and (c) will not be obligated to erase any Confidential Information that is contained\nin an archived computer system backup in accordance with the Receiving Party’s or its Representatives’ security and/or disaster recovery\nprocedures; provided, however, that any such Confidential Information retained under this Section shall continue to be subject to the terms of\nthis Agreement. Following such request, the Receiving Party will promptly provide the Disclosing Party with written confirmation from an\nauthorized officer who has supervised the Receiving Party’s compliance with this paragraph that confirms such compliance.\n6. No Waiver. No failure or delay in exercising any right, power, or privilege hereunder will operate as a waiver thereof nor will any single or\npartial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege hereunder.\n7. Remedies. The parties acknowledges and agree that money damages would not be a sufficient remedy for any breach of this Agreement, and\nthe parties further acknowledge and agree that the non-breaching party will be entitled to seek specific performance and injunctive relief as\nremedies for any such breach. Such remedies will not be deemed to be the exclusive remedies for a breach of this Agreement but will be in\naddition to all other remedies available at law or in equity.\n8. Termination. This Agreement shall terminate, and all provisions hereof shall be of no further force or effect, one year from the date of this\nAgreement, unless either party terminates it earlier by providing a written termination notice to the other party; provided, however, that if this\nAgreement is so terminated by either party, this Agreement will continue to apply to any Confidential Information disclosed hereunder\n(including Confidential Information returned or destroyed) prior to the other party’s receipt of the termination notice until the end of the one-\nyear term. Each party further acknowledges and agrees that each party reserves the right, in its sole discretion and at any time, to reject any and\nall proposals made by the other party or any of its Representatives or any other party with regard to a Transaction and to terminate discussions\nand negotiations hereunder. If either party decides that it does not wish to proceed with a Transaction, such party shall promptly notify the\nother party of that decision.\n9. Nonsolicitation. The Receiving Party agrees that for a period of one year neither it nor its Affiliates who receive confidential information shall\ndirectly or indirectly initiate the solicitation of, without the consent of the Disclosing Party, (a) any executive officer of the Disclosing Party or\nof any of its Affiliates or (b) any employee of the Disclosing Party or any of its Affiliates actively engaged in the review of the Transaction for\nemployment, advisory or consulting work; provided, however, neither party shall be prohibited from (x) employing or otherwise working with\nany such person who contacts\n3\nsuch party solely on his or her own initiative and without direct or indirect solicitation by such party, (y) conducting general solicitations for\nemployees or general contractors (which solicitations are not specifically targeted at the other party’s employees) through the use of media\nadvertisements, professional search firms or otherwise, or (z) employing employees who are paid on an hourly basis.\n10. Right to Disclose. The Disclosing Party represents and warrants to the Receiving Party that it has the right to disclose the Confidential\nInformation to the Receiving Party.\n11. No Obligation or Joint Venture. The parties hereto understand and agree that unless and until a definitive agreement has been executed and\ndelivered, no contract or agreement providing for the Transaction between the parties shall be deemed to exist between the parties, and neither\nparty will be under any legal obligation of any kind whatsoever with respect to such transaction by virtue of this or any written or oral\nexpression thereof, except, in the case of this Agreement, for the matters specifically agreed to herein. For purposes of this Agreement, the\nterm “definitive agreement” does not include an executed letter of intent or any other preliminary written agreement or offer, unless\nspecifically so designated in writing and executed by both parties.\n12. No Warranty. BY EXECUTING THIS AGREEMENT, AND EXCEPT AS PROVIDED IN SECTION 10 ABOVE, THE DISCLOSING\nPARTY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO, OR IN\nANY WAY WITH RESPECT OR IN CONNECTION WITH ANY INFORMATION MADE AVAILABLE HEREUNDER. ACCORDINGLY,\nTHE RECEIVING PARTY WILL RELY SOLELY UPON ITS INDEPENDENT EXAMINATION AND ASSESSMENT OF THE\nCONFIDENTIAL INFORMATION IN EVALUATING THE TRANSACTION.\n13. Assignment. Neither party may assign this Agreement, or any rights hereunder, without the prior written consent of the other party, which\nconsent may be granted or withheld in the sole and absolute discretion of the non-assigning party.\n14. Miscellaneous. This Agreement inures to the benefit of, and is binding upon, both parties, and their successors and assigns, subject to the\nlimitations on assignment as set forth in Section 13 above. This Agreement constitutes the entire agreement between the parties with respect to\nthe subject matter hereof. The headings of the Sections of this Agreement are inserted for convenience only and do not constitute a part hereof\nor affect in any way the meaning or interpretation of this Agreement. If any provision of this Agreement is found to be invalid, illegal or\nunenforceable, such provision shall be modified or severed to the extent necessary to reflect the fullest legal and enforceable expression of the\nintent of the parties. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF\nTHE STATE OF TEXAS APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WITHIN SUCH STATE WITHOUT\nREGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF. Each party hereto agrees that the prevailing party in any action or\nproceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be entitled to recover its reasonable fees\nand expenses in connection therewith, including legal fees.\n4\n15. Counterparts. This Agreement may be executed in one or more counterparts (including by means of telecopied signature pages or signature\npages delivered by electronic transmission in portable document format (pdf)), all of which taken together shall constitute one and the same\ninstrument. This Agreement to the extent signed and delivered by means of a facsimile machine or electronic pdf transmission, shall be treated\nin all manner and respects as an original instrument and shall be considered to have the same binding legal effect as if it were the original\nsigned version thereof delivered in person. At the request of any party hereto, the other party shall re-execute original forms thereof and deliver\nthem to such other party. No party hereto or to any such instrument shall raise the use of a facsimile machine or electronic pdf transmission to\ndeliver a signature or the fact that any signature or instrument was transmitted or communicated through the use of a facsimile machine or\nelectronic pdf transmission as a defense to the formation of a contract and each party forever waives any such defense, except to the extent\nsuch defense relates to lack of authenticity.\n[Signatures on following page]\n5\nIN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.\nAVISTA CAPITAL HOLDINGS, LP\nBy: /s/ Jeff Gunst\nIts: Jeff Gunst\nAuthorized Signatory\nUNION DRILLING INC.\nBy: /s/ Christopher D. Strong\nChristopher D. Strong, President & CEO\n6
+ec0c342ef16c55d2f88469e809f3943f.pdf	effective_date jurisdiction party term	EX-10.6 11 ex106.htm EXHIBIT 10.6 EMPLOYMENT CONTRACT BETWEEN SUN ENERGY SOLAR, INC.\n(NOW KNOWN AS SUNOVIA SOLAR, INC.) AND BOB FUGERER, DATED JULY 10, 2006, AND ADDENDUM\nExhibit 10.6\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT ("Agreement") is entered into this 2nd day of February, 2006 by and between Sun Energy Solar,\nInc., a Delaware company having an address at 6408 Parkland Drive, Suite 104, Sarasota, Florida 34243, United States of America\n("Company"), and Robert Fugerer, an individual residing in the state of Florida, and having an address at 4819 Sky Blue Drive, Lutz, FL\n33558("Recipient").\nRECITALS\nA.\nCompany and Recipient have initiated or intend to initiate discussions concerning the possibility of entering into a mutually\nadvantageous business relationship whereby Recipient shall perform certain services on behalf of and for the benefit of Company (the\n“LimitedPurpose”).\nB.\nTo facilitate the disclosure of certain Confidential Information (as defined below) by Company to Recipient, the parties desire to enter\ninto this Agreement.\nAGREEMENT\nNow therefore, in consideration of the foregoing recitals, which are hereby incorporated into this Agreement by reference, and the mutual\ncovenants and agreements contained herein, and other good and valuable consideration, the adequacy and receipt of which is hereby\nacknowledged, the parties agree as follows:\n1.\nDefinitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following\nmeanings:\n(a)\n"Confidential Information" mean any information, whether written, oral, magnetic, photographic, optical, or other form,\ntangible or intangible, which has been, or after the date hereof will be, furnished or disclosed by Company, or its employees, consultants,\nrepresentatives or agents, or which Recipient may have access to in connection with the Limited Purpose, which has been designated as being\nconfidential, or which under the circumstances of disclosure reasonably ought to be treated as confidential, including but not limited to any\ninformation pertaining to or regarding the business, financial condition, pricing, sales, strategies, plans, customers, suppliers, properties and\noperations of Company (including such information visually available to Recipient at Company’s premises or Company presentations), and\nincluding without limitation all technical information of any nature whatsoever and all business plans, inventions, trade secrets, know-how,\nmethodologies, concepts, techniques, discoveries, computer programs (including functionality and source code), processes, drawings, designs,\nresearch, plans or specifications relating thereto.\n(b)\n"Related Party" or "Related Parties" shall mean the directors, officers, employees, legal, tax and other professional\nadvisors or consultants of Recipient, to the extent such entities or persons receive Confidential Information.\n2.\nNon-Disclosure and Restricted Use of Confidential Information.\n(a)\nRecipient shall keep in strictest confidence and trust all Confidential Information and, except upon the express prior\nwritten consent of Company, Recipient shall (i) not disclose any Confidential Information to any other entity or person, and (ii) use the\nConfidential Information solely as necessary to implement the Limited Purpose and not for Recipient’s own benefit or for the benefit of any other\nentity or person. Recipient shall take all reasonable safeguards to prevent the disclosure or misuse of the Confidential Information, including\nwithout limitation such measures as the Recipient takes to safeguard its own confidential information, and shall not photocopy, transcribe or\notherwise reproduce or modify any of the Confidential Information except as necessary to implement the Limited Purpose or otherwise upon the\nexpress written consent of the Company.\n1\n(b)\nRecipient may disclose the Confidential Information to Related Parties on a "need to know" basis only. Recipient\nshall inform all Related Parties who have access to the Confidential Information that such Confidential Information is confidential and\nproprietary to Company and shall require each such Related Party to agree to restrictions and obligations at least as strict as those set forth herein\nprior to disclosure of any Confidential Information. Recipient shall diligently enforce any and all confidentiality agreements with Related Parties\nand shall be responsible and liable for any breach of the confidentiality obligations and restrictions on use set forth herein by any Related Party.\n(c)\nThe obligations of Recipient stated in the preceding paragraphs of this Section 2 shall not apply to information that (i)\nis or becomes generally known or available to the public through no wrongful act of the Recipient; (ii) was in the Recipient's possession at the\ntime of disclosure or receipt, as evidenced and verified by prior tangible evidence, and was not acquired under an obligation of confidence; (iii)\nRecipient demonstrates was rightfully received by it from a third party after the time it was disclosed or obtained hereunder, provided that such\nthird party was not under an obligation of confidence with the Company at the time of the third party’s disclosure to Recipient; (iv) is\nindependently developed by Recipient without use of or reference to the Confidential Information and without breach of this Agreement, as\nevidenced and verified by prior tangible evidence; or (v) is required to be disclosed in a judicial or administrative proceeding, or as otherwise\nrequired to be disclosed by law, in any such case after all reasonable legal remedies for maintaining such information in confidence have been\nexhausted, including, but not limited to, giving Company as much advance notice of the possibility of such disclosure as practical so Company\nmay attempt to stop such disclosure or obtain a protective order concerning such disclosure. Recipient shall provide Company with written\nnotice no less than five (5) days prior to the disclosure or use of any information of Company pursuant to this Section 2(c), subsections (i)\nthrough (v).\n(d)\nRecipient shall (i) notify Company immediately of any unauthorized possession, use or knowledge of the Confidential\nInformation, (ii) promptly furnish Company full details of such possession, use or knowledge, and (iii) cooperate with Company against third\nparties as may be deemed necessary by Company to protect its proprietary rights in the Confidential Information.\n3.\nTerm of Agreement. This Agreement shall be effective as of the date of first disclosure of Confidential Information\nand may be terminated, without cause, with respect to future disclosures upon thirty (30) days prior written notice to the other party; provided\nhowever, that all rights and obligations accrued prior to such termination shall survive the termination of this Agreement. Notwithstanding\nanything herein to the contrary, the nondisclosure obligations and restrictions on use with respect to any Confidential Information shall continue\nand bind Recipient for a period of five (5) years after the date of the last disclosure of Confidential Information hereunder, except that the\nnondisclosure obligations and restrictions on use with respect to any Confidential Information that constitutes a trade secret shall continue in\neffect for so long as the Confidential Information remains a trade secret under applicable law. Any termination or expiration of this Agreement\nshall be without prejudice to the rights of Company against Recipient in respect of any claim or breach of any of the provisions of this\nAgreement.\n4.\nReturn of Confidential Information. Recipient shall return to Company, or at Company’s request, destroy, and shall\ncause its Related Parties to return or destroy, the Confidential Information and all copies, transcriptions or other reproductions of, and any notes\nrelating to, the Confidential Information, including without limitation, any memoranda, photocopies, computer files and libraries, computer-\ngenerated data or other similar repositories or archives, upon (i) the accomplishment of the purpose for which the Confidential Information was\nprovided, or (ii) receipt of a written notice from Company requesting return or destruction of the Confidential Information, and upon request,\nshall provide to Company written certification signed by an officer of Recipient that it has complied with the foregoing.\n2\n5.\nOwnership.\n(a)\nAll Confidential Information is and shall remain the property of Company. By disclosing Confidential Information to\nRecipient, Company does not grant any express or implied right to Recipient to or under any patents, copyrights, trademarks, or trade secret\ninformation except as required to implement the Limited Purpose. Company reserves without prejudice the ability to protect its rights under any\nsuch patents, copyrights, trademarks, or trade secrets. Recipient shall not remove any proprietary, copyright, trade secret or other legend from\nany form of the Confidential Information. Recipient shall, at the reasonable written request of Company and at Company’s expense, add to the\nConfidential Information any proprietary, copyright, trade secret or other legend or modify the same, which Company deems necessary to protect\nits intellectual property rights. Without limiting the foregoing, Company shall retain all right, title, and interest in and to all forms of\nConfidential Information delivered or disclosed hereunder, including, without limitation, any patents, copyrights, trademarks, service marks,\ntrade dress, logos, technical information, know-how, trade secrets, and any modifications or enhancements thereto (whether developed by\nCompany, Recipient, any Related Party, or on either party’s behalf) or other intellectual property rights throughout the world, whether currently\nexisting or hereafter developed or acquired, and all applications, disclosures and registrations with respect thereto (collectively, “IP Rights”). If\nRecipient or any third party engaged by Recipient is deemed to have any ownership interest or rights in any IP Rights in the Confidential\nInformation, then Recipient, for no additional consideration, shall assign and/or cause such third party to assign, and Recipient does hereby\nassign, all of such ownership interest and rights exclusively and irrevocably to Company. Recipient shall cooperate with Company and shall\ncause to be executed all such instruments and documents as Company reasonably may request in connection with such assignments and shall do\nall other lawfully permitted acts reasonably required to further the intent of this Section 5; provided, however, this Agreement shall be effective\nregardless of whether any such additional documents are executed. Recipient shall not dispute or contest, directly or indirectly, Company’s right,\ntitle and interest in or to, or the validity and enforceability of, any IP Rights in the Confidential Information (including the attempt to register or\nrecord the same in any jurisdiction). Notwithstanding anything herein to the contrary, this Section 5 shall survive any termination or expiration\nof this Agreement.\n(b)\nRecipient may from time to time provide suggestions, comments or other feedback ("Feedback") to Company with\nrespect to the Confidential Information. Both parties agree that all Feedback is and shall be given entirely voluntarily. Recipient shall not give\nFeedback that is subject to license terms that seek to require any Company product, technology, service or documentation incorporating or\nderived from such Feedback, or any Company intellectual property, to be licensed or otherwise shared with any third party. Recipient hereby\nacknowledges and agrees that all Feedback shall be deemed Confidential Information of Company, subject to the obligations of confidentiality\nand restricted use provided under this Agreement. Furthermore, Recipient hereby acknowledges and agrees that Company shall have the\nexclusive right to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback as Company sees fit, entirely without\nobligation or restriction of any kind on account of intellectual property rights or otherwise.\n6.\nAccuracy and Completeness of Confidential Information. The disclosure of any Confidential Information to Recipient\nshall be solely in Company 's discretion. This Agreement shall not require Company to disclose any information or to require the consummation\nof any transaction in connection with which the Confidential Information is disclosed. Notwithstanding anything to the contrary, Company shall\nnot be deemed to have made any representation or warranty to Recipient concerning the accuracy or completeness of any Confidential\nInformation, except to the extent that such representation or warranty may be expressly set forth in a definitive written agreement concerning any\nsubsequent business relationship.\n7.\nIndependent Contractors. Neither this Agreement, nor any terms and conditions contained herein, will be construed as\ncreating a partnership, joint venture, or agency relationship or as granting a franchise. The parties are independent contractors each acting for its\nown account, and neither is authorized to make any commitment or representation, express or implied, on the other’s behalf.\n3\n8.\nRemedies. Recipient acknowledges and agrees that Company would be irreparably harmed if any of the Confidential\nInformation were to be disclosed to third parties, or if any use were to be made of the Confidential Information other than that specified in this\nAgreement, and further agrees that Company shall have the right to seek and obtain injunctive relief upon any violation or threatened violation of\nthe terms of this Agreement without the necessity of posting bond or other security, in addition to all other rights and remedies available to\nCompany at law or in equity. Any trade secrets of the Company will be entitled to all of the protections and benefits under the applicable\nUniform Trade Secrets Act and any other applicable law. If any information that Company deems to be a trade secret is found by a court of\ncompetent jurisdiction not to be a trade secret for purposes of this Agreement, such information nevertheless will be considered Confidential\nInformation for purposes of this Agreement. Recipient hereby waives any requirement that the Company submit proof of the economic value of\nany trade secret.\n9.\nIndemnity. Recipient shall indemnify Company for and against all damages, losses, claims, costs (including reasonable\nattorneys' fees), expenses and liabilities, suffered or incurred as a direct or indirect result of Recipient failing (whether intentionally or not) to\nfully comply with its covenants and obligations under this Agreement, including by virtue of any act of any Related Party.\n10.\nEntire Agreement. This Agreement sets forth the complete and exclusive understanding of the parties regarding the\nsubject matter of this Agreement and supersedes all prior agreements, understandings, and communications, oral or written, between the parties\nregarding the subject matter of this Agreement. This Agreement is not, however, intended to limit any rights that Company may have under\ntrade secret, copyright, patent, trademark or other laws that may apply to the subject matter of this Agreement both during and after the term of\nthis Agreement.\n11.\nAmendments. No amendment or waiver of any term of this Agreement shall be effective unless such amendment or\nwaiver is in writing and is signed by each of the parties hereto.\n12.\nAssignment. Recipient shall not assign or transfer, in whole or in part and whether by contract or operation of law,\nthis Agreement, or any rights or obligations hereunder, without the prior written consent of Company. Subject to the foregoing, this Agreement\nshall be binding upon, and shall inure to the benefit of, the parties and their respective representatives, successors and assigns.\n13.\nAttorneys' Fees. If any party shall commence any action or proceeding against the other in order to enforce the\nprovisions of this Agreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing\nparty therein shall be entitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the\nparty who has breached this Agreement, as the case may be, including reasonable attorneys' fees.\n14.\nApplicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of\nFlorida, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State\nof Florida. Any suit to enforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in\nthe United States District Court for the District of Florida or the District Court in and for the city of Sarasota and the County of Sarasota, State of\nFlorida. Each party hereby agrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party\nhereby submits to the in personam jurisdiction and venue of such courts.\n15.\nSeverability. If any provision of the Agreement shall be held by a court competent jurisdiction to be illegal, invalid or\nunenforceable, the parties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties’\nintentions and the remaining provisions shall remain in full force and effect.\n4\n[SIGNATURE PAGE FOLLOWS]\nThis Agreement has been executed as of the date first set forth above.\nSun Energy Solar, Inc..\nBy: /s/Carl L. Smith\nTitle:\nCEO\nDate:\nJuly 10, 2006\nRecipient\nSignature: /s/ Robert\nFugerer\nPrinted:\nRobert Fugerer\nDate:\nFebruary 18, 2006	EX-10.6 11 ex106.htm EXHIBIT 10.6 EMPLOYMENT CONTRACT BETWEEN SUN ENERGY SOLAR, INC.\n(NOW KNOWN AS SUNOVIA SOLAR, INC.) AND BOB FUGERER, DATED JULY 10, 2006, AND ADDENDUM\nExhibit 10.6\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT ("Agreement") is entered into this 2nd day of February, 2006 by and between Sun Energy Solar,\nInc., a Delaware company having an address at 6408 Parkland Drive, Suite 104, Sarasota, Florida 34243, United States of America\n("Company"), and Robert Fugerer, an individual residing in the state of Florida, and having an address at 4819 Sky Blue Drive, Lutz, FL\n33558("Recipient").\nRECITALS\nA. Company and Recipient have initiated or intend to initiate discussions concerning the possibility of entering into a mutually\nadvantageous business relationship whereby Recipient shall perform certain services on behalf of and for the benefit of Company (the\n“LimitedPurpose”).\nB. To facilitate the disclosure of certain Confidential Information (as defined below) by Company to Recipient, the parties desire to enter\ninto this Agreement.\nAGREEMENT\nNow therefore, in consideration of the foregoing recitals, which are hereby incorporated into this Agreement by reference, and the mutual\ncovenants and agreements contained herein, and other good and valuable consideration, the adequacy and receipt of which is hereby\nacknowledged, the parties agree as follows:\n1. Definitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following\nmeanings:\n(a) "Confidential Information" mean any information, whether written, oral, magnetic, photographic, optical, or other form,\ntangible or intangible, which has been, or after the date hereof will be, furnished or disclosed by Company, or its employees, consultants,\nrepresentatives or agents, or which Recipient may have access to in connection with the Limited Purpose, which has been designated as being\nconfidential, or which under the circumstances of disclosure reasonably ought to be treated as confidential, including but not limited to any\ninformation pertaining to or regarding the business, financial condition, pricing, sales, strategies, plans, customers, suppliers, properties and\noperations of Company (including such information visually available to Recipient at Company’s premises or Company presentations), and\nincluding without limitation all technical information of any nature whatsoever and all business plans, inventions, trade secrets, know-how,\nmethodologies, concepts, techniques, discoveries, computer programs (including functionality and source code), processes, drawings, designs,\nresearch, plans or specifications relating thereto.\n(b) "Related Party" or "Related Parties" shall mean the directors, officers, employees, legal, tax and other professional\nadvisors or consultants of Recipient, to the extent such entities or persons receive Confidential Information.\n2. Non-Disclosure and Restricted Use of Confidential Information.\n(a) Recipient shall keep in strictest confidence and trust all Confidential Information and, except upon the express prior\nwritten consent of Company, Recipient shall (i) not disclose any Confidential Information to any other entity or person, and (ii) use the\nConfidential Information solely as necessary to implement the Limited Purpose and not for Recipient’s own benefit or for the benefit of any other\nentity or person. Recipient shall take all reasonable safeguards to prevent the disclosure or misuse of the Confidential Information, including\nwithout limitation such measures as the Recipient takes to safeguard its own confidential information, and shall not photocopy, transcribe or\notherwise reproduce or modify any of the Confidential Information except as necessary to implement the Limited Purpose or otherwise upon the\nexpress written consent of the Company.\n(b) Recipient may disclose the Confidential Information to Related Parties on a "need to know" basis only. Recipient\nshall inform all Related Parties who have access to the Confidential Information that such Confidential Information is confidential and\nproprietary to Company and shall require each such Related Party to agree to restrictions and obligations at least as strict as those set forth herein\nprior to disclosure of any Confidential Information. Recipient shall diligently enforce any and all confidentiality agreements with Related Parties\nand shall be responsible and liable for any breach of the confidentiality obligations and restrictions on use set forth herein by any Related Party.\n(0 The obligations of Recipient stated in the preceding paragraphs of this Section 2 shall not apply to information that (i)\nis or becomes generally known or available to the public through no wrongful act of the Recipient; (ii) was in the Recipient's possession at the\ntime of disclosure or receipt, as evidenced and verified by prior tangible evidence, and was not acquired under an obligation of confidence; (iii)\nRecipient demonstrates was rightfully received by it from a third party after the time it was disclosed or obtained hereunder, provided that such\nthird party was not under an obligation of confidence with the Company at the time of the third party’s disclosure to Recipient; (iv) is\nindependently developed by Recipient without use of or reference to the Confidential Information and without breach of this Agreement, as\nevidenced and verified by prior tangible evidence; or (v) is required to be disclosed in a judicial or administrative proceeding, or as otherwise\nrequired to be disclosed by law, in any such case after all reasonable legal remedies for maintaining such information in confidence have been\nexhausted, including, but not limited to, giving Company as much advance notice of the possibility of such disclosure as practical so Company\nmay attempt to stop such disclosure or obtain a protective order concerning such disclosure. Recipient shall provide Company with written\nnotice no less than five (5) days prior to the disclosure or use of any information of Company pursuant to this Section 2(c), subsections (i)\nthrough (v).\n(d) Recipient shall (i) notify Company immediately of any unauthorized possession, use or knowledge of the Confidential\nInformation, (ii) promptly furnish Company full details of such possession, use or knowledge, and (iii) cooperate with Company against third\nparties as may be deemed necessary by Company to protect its proprietary rights in the Confidential Information.\n3. Term of Agreement. This Agreement shall be effective as of the date of first disclosure of Confidential Information\nand may be terminated, without cause, with respect to future disclosures upon thirty (30) days prior written notice to the other party; provided\nhowever, that all rights and obligations accrued prior to such termination shall survive the termination of this Agreement. Notwithstanding\nanything herein to the contrary, the nondisclosure obligations and restrictions on use with respect to any Confidential Information shall continue\nand bind Recipient for a period of five (5) years after the date of the last disclosure of Confidential Information hereunder, except that the\nnondisclosure obligations and restrictions on use with respect to any Confidential Information that constitutes a trade secret shall continue in\neffect for so long as the Confidential Information remains a trade secret under applicable law. Any termination or expiration of this Agreement\nshall be without prejudice to the rights of Company against Recipient in respect of any claim or breach of any of the provisions of this\nAgreement.\n4. Return of Confidential Information. Recipient shall return to Company, or at Company’s request, destroy, and shall\ncause its Related Parties to return or destroy, the Confidential Information and all copies, transcriptions or other reproductions of, and any notes\nrelating to, the Confidential Information, including without limitation, any memoranda, photocopies, computer files and libraries, computer-\ngenerated data or other similar repositories or archives, upon (i) the accomplishment of the purpose for which the Confidential Information was\nprovided, or (ii) receipt of a written notice from Company requesting return or destruction of the Confidential Information, and upon request,\nshall provide to Company written certification signed by an officer of Recipient that it has complied with the foregoing.\n5. Ownership.\n(a) All Confidential Information is and shall remain the property of Company. By disclosing Confidential Information to\nRecipient, Company does not grant any express or implied right to Recipient to or under any patents, copyrights, trademarks, or trade secret\ninformation except as required to implement the Limited Purpose. Company reserves without prejudice the ability to protect its rights under any\nsuch patents, copyrights, trademarks, or trade secrets. Recipient shall not remove any proprietary, copyright, trade secret or other legend from\nany form of the Confidential Information. Recipient shall, at the reasonable written request of Company and at Company’s expense, add to the\nConfidential Information any proprietary, copyright, trade secret or other legend or modify the same, which Company deems necessary to protect\nits intellectual property rights. Without limiting the foregoing, Company shall retain all right, title, and interest in and to all forms of\nConfidential Information delivered or disclosed hereunder, including, without limitation, any patents, copyrights, trademarks, service marks,\ntrade dress, logos, technical information, know-how, trade secrets, and any modifications or enhancements thereto (whether developed by\nCompany, Recipient, any Related Party, or on either party’s behalf) or other intellectual property rights throughout the world, whether currently\nexisting or hereafter developed or acquired, and all applications, disclosures and registrations with respect thereto (collectively, “IP Rights”). If\nRecipient or any third party engaged by Recipient is deemed to have any ownership interest or rights in any IP Rights in the Confidential\nInformation, then Recipient, for no additional consideration, shall assign and/or cause such third party to assign, and Recipient does hereby\nassign, all of such ownership interest and rights exclusively and irrevocably to Company. Recipient shall cooperate with Company and shall\ncause to be executed all such instruments and documents as Company reasonably may request in connection with such assignments and shall do\nall other lawfully permitted acts reasonably required to further the intent of this Section 5; provided, however, this Agreement shall be effective\nregardless of whether any such additional documents are executed. Recipient shall not dispute or contest, directly or indirectly, Company’s right,\ntitle and interest in or to, or the validity and enforceability of, any IP Rights in the Confidential Information (including the attempt to register or\nrecord the same in any jurisdiction). Notwithstanding anything herein to the contrary, this Section 5 shall survive any termination or expiration\nof this Agreement.\n(b) Recipient may from time to time provide suggestions, comments or other feedback ("Feedback") to Company with\nrespect to the Confidential Information. Both parties agree that all Feedback is and shall be given entirely voluntarily. Recipient shall not give\nFeedback that is subject to license terms that seek to require any Company product, technology, service or documentation incorporating or\nderived from such Feedback, or any Company intellectual property, to be licensed or otherwise shared with any third party. Recipient hereby\nacknowledges and agrees that all Feedback shall be deemed Confidential Information of Company, subject to the obligations of confidentiality\nand restricted use provided under this Agreement. Furthermore, Recipient hereby acknowledges and agrees that Company shall have the\nexclusive right to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback as Company sees fit, entirely without\nobligation or restriction of any kind on account of intellectual property rights or otherwise.\n6. Accuracy and Completeness of Confidential Information. The disclosure of any Confidential Information to Recipient\nshall be solely in Company 's discretion. This Agreement shall not require Company to disclose any information or to require the consummation\nof any transaction in connection with which the Confidential Information is disclosed. Notwithstanding anything to the contrary, Company shall\nnot be deemed to have made any representation or warranty to Recipient concerning the accuracy or completeness of any Confidential\nInformation, except to the extent that such representation or warranty may be expressly set forth in a definitive written agreement concerning any\nsubsequent business relationship.\n7. Independent Contractors. Neither this Agreement, nor any terms and conditions contained herein, will be construed as\ncreating a partnership, joint venture, or agency relationship or as granting a franchise. The parties are independent contractors each acting for its\nown account, and neither is authorized to make any commitment or representation, express or implied, on the other’s behalf.\n8. Remedies. Recipient acknowledges and agrees that Company would be irreparably harmed if any of the Confidential\nInformation were to be disclosed to third parties, or if any use were to be made of the Confidential Information other than that specified in this\nAgreement, and further agrees that Company shall have the right to seek and obtain injunctive relief upon any violation or threatened violation of\nthe terms of this Agreement without the necessity of posting bond or other security, in addition to all other rights and remedies available to\nCompany at law or in equity. Any trade secrets of the Company will be entitled to all of the protections and benefits under the applicable\nUniform Trade Secrets Act and any other applicable law. If any information that Company deems to be a trade secret is found by a court of\ncompetent jurisdiction not to be a trade secret for purposes of this Agreement, such information nevertheless will be considered Confidential\nInformation for purposes of this Agreement. Recipient hereby waives any requirement that the Company submit proof of the economic value of\nany trade secret.\n9. Indemnity. Recipient shall indemnify Company for and against all damages, losses, claims, costs (including reasonable\nattorneys' fees), expenses and liabilities, suffered or incurred as a direct or indirect result of Recipient failing (whether intentionally or not) to\nfully comply with its covenants and obligations under this Agreement, including by virtue of any act of any Related Party.\n10. Entire Agreement. This Agreement sets forth the complete and exclusive understanding of the parties regarding the\nsubject matter of this Agreement and supersedes all prior agreements, understandings, and communications, oral or written, between the parties\nregarding the subject matter of this Agreement. This Agreement is not, however, intended to limit any rights that Company may have under\ntrade secret, copyright, patent, trademark or other laws that may apply to the subject matter of this Agreement both during and after the term of\nthis Agreement.\n11. Amendments. No amendment or waiver of any term of this Agreement shall be effective unless such amendment or\nwaiver is in writing and is signed by each of the parties hereto.\n12. Assignment. Recipient shall not assign or transfer, in whole or in part and whether by contract or operation of law,\nthis Agreement, or any rights or obligations hereunder, without the prior written consent of Company. Subject to the foregoing, this Agreement\nshall be binding upon, and shall inure to the benefit of, the parties and their respective representatives, successors and assigns.\n13. Attorneys' Fees. If any party shall commence any action or proceeding against the other in order to enforce the\nprovisions of this Agreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing\nparty therein shall be entitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the\nparty who has breached this Agreement, as the case may be, including reasonable attorneys' fees.\n14. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of\nFlorida, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State\nof Florida. Any suit to enforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in\nthe United States District Court for the District of Florida or the District Court in and for the city of Sarasota and the County of Sarasota, State of\nFlorida. Each party hereby agrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party\nhereby submits to the in personam jurisdiction and venue of such courts.\n15. Severability. If any provision of the Agreement shall be held by a court competent jurisdiction to be illegal, invalid or\nunenforceable, the parties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties’\nintentions and the remaining provisions shall remain in full force and effect.\n[SIGNATURE PAGE FOLLOWS]\nThis Agreement has been executed as of the date first set forth above.\nJuly 10, 2006\nFugerer\nRobert Fugerer\nFebruary 18, 2006\nSun Energy Solar, Inc..\nBy: /s/Carl L. Smith\nTitle:\nDate:\nRecipient\nSignature: /s/ Robert\nPrinted:\nDate:	EX-10.6 11 x106.htm EXHIBIT 10.6 EMPLOYMENT CONTRACT BETWEEN SUN ENERGY SOLAR, INC.\n(NOW KNOWN AS SUNOVIA SOLAR, INC.) AND BOB FUGERER, DATED JULY 10, 2006, AND ADDENDUM\nExhibit 10.6\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT ("Agreement") is entered into this 2nd day of February, 2006 by and between Sun Energy Solar,\nInc., a Delaware company having an address at 6408 Parkland Drive, Suite 104, Sarasota, Florida 34243, United States of America\n("Company"), and Robert Fugerer, an individual residing in the state of Florida, and having an address at 4819 Sky Blue Drive, Lutz, FL\n3558("Recipient").\nRECITALS\nA.\nCompany and Recipient have initiated or intend to initiate discussions concerning the possibility of entering into a mutually\nadvantageous business relationship whereby Recipient shall perform certain services on behalf of and for the benefit of Company (the\n"LimitedPurpose").\nB.\nTo facilitate the disclosure of certain Confidential Information (as defined below) by Company to Recipient, the parties desire to enter\ninto this Agreement.\nAGREEMENT\nNow therefore, in consideration of the foregoing recitals, which are hereby incorporated into this Agreement by reference, and the mutual\ncovenants and agreements contained herein, and other good and valuable consideration, the adequacy and receipt of which is hereby\nacknowledged, the parties agree as follows:\n1.\nDefinitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following\nmeanings:\n(a)\n"Confidential Information" mean any information, whether written, oral, magnetic, photographic, optical, or other form,\ntangible or intangible, which has been, or after the date hereof will be, furnished or disclosed by Company, or its employees, consultants,\nrepresentatives or agents, or which Recipient may have access to in connection with the Limited Purpose, which has been designated as being\nconfidential, or which under the circumstances of disclosure reasonably ought to be treated as confidential, including but not limited to any\ninformation pertaining to or regarding the business, financial condition, pricing, sales, strategies, plans, customers, suppliers, properties and\noperations\nof\nCompany\n(including\nsuch\ninformation\nvisually\navailable\nto\nRecipient\nat\nCompany's\npremises\nor\nCompany\npresentations),\nand\nincluding without limitation all technical information of any nature whatsoever and all business plans, inventions, trade secrets, know-how,\nmethodologies, concepts, techniques, discoveries, computer programs (including functionality and source code), processes, drawings, designs,\nresearch, plans or specifications relating thereto.\n(b)\n"Related Party" or "Related Parties" shall mean the directors, officers, employees, legal, tax and other professional\nadvisors or consultants of Recipient, to the extent such entities or persons receive Confidential Information.\n2.\nNon-Disclosure and Restricted Use of Confidential Information.\n(a)\nRecipient shall keep in strictest confidence and trust all Confidential Information and, except upon the express prior\nwritten consent of Company, Recipient shall (i) not disclose any Confidentia Information to any other entity or person, and (ii) use the\nConfidential Information solely as necessary to implement the Limited Purpose and not for Recipient's own benefit or for the benefit of any other\nentity or person. Recipient shall take all reasonable safeguards to prevent the disclosure or misuse of the Confidential Information, including\nwithout limitation such measures as the Recipient takes to safeguard its own confidential information, and shall not photocopy, transcribe or\notherwise reproduce or modify any of the Confidential Information except as necessary to implement the Limited Purpose or otherwise upon the\nexpress written consent of the Company.\n1\n(b)\nRecipient may disclose the Confidential Information to Related Parties on a "need to know" basis only. Recipient\nshall inform all Related Parties who have access to the Confidential Information that such Confidential Information is confidential and\nproprietary to Company and shall require each such Related Party to agree to restrictions and obligations at least as strict as those set forth herein\nprior to disclosure of any Confidential Information. Recipient shall diligently enforce any and all confidentiality agreements with Related Parties\nand shall be responsible and liable for any breach of the confidentiality obligations and restrictions on use set forth herein by any Related Party.\n(c)\nThe obligations of Recipient stated in the preceding paragraphs of this Section 2 shall not apply to information that (i)\nis or becomes generally known or available to the public through no wrongful act of the Recipient; (ii) was in the Recipient's possession at the\ntime of disclosure or receipt, as evidenced and verified by prior tangible evidence, and was not acquired under an obligation of confidence; (iii)\nRecipient demonstrates was rightfully received by it from a third party after the time it was disclosed or obtained hereunder, provided that such\nthird party was not under an obligation of confidence with the Company at the time of the third party's disclosure to Recipient; (iv) is\nindependently developed by Recipient without use of or reference to the Confidential Information and without breach of this Agreement, as\nevidenced and verified by prior tangible evidence; or (v) is required to be disclosed in a judicial or administrative proceeding, or as otherwise\nrequired to be disclosed by law, in any such case after all reasonable legal remedies for maintaining such information in confidence have been\nexhausted, including, but not limited to, giving Company as much advance notice of the possibility of such disclosure as practical so Company\nmay attempt to stop such disclosure or obtain a protective order concerning such disclosure. Recipient shall provide Company with written\nnotice no less than five (5) days prior to the disclosure or use of any information of Company pursuant to this Section 2(c), subsections\n(i)\nthrough (v).\n(d)\nRecipient shall (i) notify Company immediately of any unauthorized possession, use or knowledge of the Confidentia\nInformation, (ii) promptly furnish Company full details of such possession, use or knowledge, and (iii) cooperate with Company against third\nparties as may be deemed necessary by Company to protect its proprietary rights in the Confidential Information.\n3.\nTerm of Agreement. This Agreement shall be effective as of the date of first disclosure of Confidential Information\nand may be terminated, without cause, with respect to future disclosures upon thirty (30) days prior written notice to the other party; provided\nhowever, that all rights and obligations accrued prior to such termination shall survive the termination of this Agreement. Notwithstanding\nanything herein to the contrary, the nondisclosure obligations and restrictions on use with respect to any Confidential Information shall continue\nand bind Recipient for a period of five (5) years after the date of the last disclosure of Confidential Information hereunder, except that the\nnondisclosure obligations and restrictions on use with respect to any Confidential Information that constitutes a trade secret shall continue in\neffect for so long as the Confidential Information remains a trade secret under applicable law. Any termination or expiration of this Agreement\nshall be without prejudice to the rights of Company against Recipient in respect of any claim or breach of any of the provisions of this\nAgreement.\n4.\nReturn of Confidential Information. Recipient shall return to Company, or at Company's request, destroy, and shall\ncause its Related Parties to return or destroy, the Confidential Information and all copies, transcriptions or other reproductions of, and any notes\nrelating\nto,\nthe\nConfidential Information, including without limitation, any memoranda, photocopies, computer files and libraries, computer-\ngenerated data or other similar repositories or archives, upon (i) the accomplishment of the purpose for which the Confidential Information was\nprovided, or (ii) receipt of a written notice from Company requesting return or destruction of the Confidential Information, and upon request,\nshall provide to Company written certification signed by an officer of Recipient that it has complied with the foregoing.\n2\n5.\nOwnership\n(a)\nAll Confidential Information is and shall remain the property of Company. By disclosing Confidential Information to\nRecipient, Company does not grant any express or implied right to Recipient to or under any patents, copyrights, trademarks, or trade secret\ninformation except as required to implement the Limited Purpose. Company reserves without prejudice the ability to protect its rights under any\nsuch patents, copyrights, trademarks, or trade secrets. Recipient shall not remove any proprietary, copyright, trade secret or other legend from\nany form of the Confidential Information. Recipient shall, at the reasonable written request of Company and at Company's expense, add to the\nConfidential Information any proprietary, copyright, trade secret or other legend or modify the same, which Company deems necessary to protect\nits intellectual property rights. Without limiting the foregoing, Company shall retain all right, title, and interest in and to all forms of\nConfidential Information delivered or disclosed hereunder, including, without limitation, any patents, copyrights, trademarks, service marks,\ntrade dress, logos, technical information, know-how, trade secrets, and any modifications or enhancements thereto (whether developed\nby\nCompany, Recipient, any Related Party, or on either party's behalf) or other intellectual property rights throughout the world, whether currently\nexisting or hereafter developed or acquired, and all applications, disclosures and registrations with respect thereto (collectively, "IP Rights"). If\nRecipient or any third party engaged by Recipient is deemed to have any ownership interest or rights in any IP Rights in the Confidential\nInformation, then Recipient, for no additional consideration, shall assign and/or cause such third party to assign, and Recipient does hereby\nassign, all of such ownership interest and rights exclusively and irrevocably to Company. Recipient shall cooperate with Company and shall\ncause to be executed all such instruments and documents as Company reasonably may request in connection with such assignments and shall\ndo\nall other lawfully permitted acts reasonably required to further the intent of this Section 5; provided, however, this Agreement shall be effective\nregardless of whether any such additional documents are executed. Recipient shall not dispute or contest, directly or indirectly, Company's right,\ntitle and interest in or to, or the validity and enforceability of, any IP Rights in the Confidential Information (including the attempt to register or\nrecord the same in any jurisdiction). Notwithstanding anything herein to the contrary, this Section 5 shall survive any termination or expiration\nof this Agreement.\n(b)\nRecipient may from time to time provide suggestions, comments or other feedback ("Feedback") to Company with\nrespect\nto\nthe\nConfidential\nInformation.\nBoth\nparties\nagree\nthat\nall\nFeedback\nis\nand\nshall\nbe\ngiven\nentirely\nvoluntarily.\nRecipient\nshall\nnot\ngive\nFeedback that is subject to license terms that seek to require any Company product, technology, service or documentation incorporating or\nderived from such Feedback, or any Company intellectual property, to be licensed or otherwise shared with any third party. Recipient hereby\nacknowledges and agrees that all Feedback shall be deemed Confidential Information of Company, subject to the obligations of confidentiality\nand restricted use provided under this Agreement. Furthermore, Recipient hereby acknowledges and agrees that Company shall have the\nexclusive right to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback as Company sees fit, entirely without\nobligation or restriction of any kind on account of intellectual property rights or otherwise.\n6.\nAccuracy. and Completeness of Confidentia Information. The disclosure of any Confidential Information to Recipient\nshall be solely in Company discretion. This Agreement shall not require Company to disclose any information or to require the consummation\nof any transaction in connection with which the Confidential Information is disclosed. Notwithstanding anything to the contrary, Company shall\nnot\nbe\ndeemed\nto\nhave made any representation or warranty to Recipient concerning the accuracy or completeness of any Confidential\nInformation, except to the extent that such representation or warranty may be expressly set forth in a definitive written agreement concerning any\nsubsequent business relationship.\n7.\nIndependent Contractors. Neither this Agreement, nor any terms and conditions contained herein, will be construed as\ncreating a partnership, joint venture, or agency relationship or as granting a franchise. The parties are independent contractors each acting for its\nown account, and neither is authorized to make any commitment or representation, express or implied, on the other's behalf.\n3\n8.\nRemedies. Recipient acknowledges and agrees that Company would be irreparably harmed if any of the Confidential\nInformation were to be disclosed to third parties, or if any use were to be made of the Confidential Information other than that specified in this\nAgreement, and further agrees that Company shall have the right to seek and obtain injunctive relief upon any violation or threatened violation of\nthe terms of this Agreement without the necessity of posting bond or other security, in addition to all other rights and remedies available\nto\nCompany at law or in equity. Any trade secrets of the Company will be entitled to all of the protections and benefits under the applicable\nUniform Trade Secrets Act and any other applicable law. If any information that Company deems to be a trade secret is found by a court of\ncompetent jurisdiction not to be a trade secret for purposes of this Agreement, such information nevertheless will be considered Confidential\nInformation for purposes of this Agreement. Recipient hereby waives any requirement that the Company submit proof of the economic value of\nany trade secret.\n9.\nIndemnity.. Recipient shall indemnify Company for and against all damages, losses, claims, costs (including reasonable\nattorneys' fees), expenses and liabilities, suffered or incurred as a direct or indirect result of Recipient failing (whether intentionally or not) to\nfully comply with its covenants and obligations under this Agreement, including by virtue of any act of any Related Party.\n10.\nEntire Agreement. This Agreement sets forth the complete and exclusive understanding of the parties regarding the\nsubject matter of this Agreement and supersedes all prior agreements, understandings, and communications, oral or written, between the parties\nregarding the subject matter of this Agreement. This Agreement is not, however, intended to limit any rights that Company may have under\ntrade secret, copyright, patent, trademark or other laws that may apply to the subject matter of this Agreement both during and after the term of\nthis Agreement.\n11.\nAmendments. No amendment or waiver of any term of this Agreement shall be effective unless such amendment or\nwaiver is in writing and is signed by each of the parties hereto.\n12.\nAssignment. Recipient shall not assign or transfer, in whole or in part and whether by contract or operation of law,\nthis Agreement, or any rights or obligations hereunder, without the prior written consent of Company. Subject to the foregoing, this Agreement\nshall be binding upon, and shall inure to the benefit of, the parties and their respective representatives, successors and assigns.\n13.\nAttorneys' Fees. If any party shall commence any action or proceeding against the other in order to enforce the\nprovisions of this Agreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing\nparty therein shall be entitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the\nparty who has breached this Agreement, as the case may be, including reasonable attorneys' fees.\n14.\nApplicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of\nFlorida, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State\nof Florida. Any suit to enforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in\nthe United States District Court for the District of Florida or the District Court in and for the city of Sarasota and the County of Sarasota, State of\nFlorida. Each party hereby agrees that such courts shall have personam jurisdiction and venue with respect to such party, and each party\nhereby submits to the in personam jurisdiction and venue of such courts.\n15.\nSeverability. If any provision of the Agreement shall be held by a court competent jurisdiction to be illegal, invalid or\nunenforceable, the parties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties'\nintentions and the remaining provisions shall remain in full force and effect.\n4\n[SIGNATURE PAGE FOLLOWS]\nThis Agreement has been executed as of the date first set forth above.\nSun Energy Solar, Inc..\nBy: /s/Carl L. Smith\nTitle:\nCEO\nDate:\nJuly 10, 2006\nRecipient\nSignature /s/ Robert\nFugerer\nPrinted:\nRobert Fugerer\nDate:\nFebruary 18, 2006	EX-10.6 11 ex106.htm EXHIBIT 10.6 EMPLOYMENT CONTRACT BETWEEN SUN ENERGY SOLAR, INC.\n(NOW KNOWN AS SUNOVIA SOLAR, INC.) AND BOB FUGERER, DATED JULY 10, 2006, AND ADDENDUM\nExhibit 10.6\nNON-DISCLOSURE AGREEMENT\nTHIS NON-DISCLOSURE AGREEMENT ("Agreement") is entered into this 2nd day of February, 2006 by and between Sun Energy Solar,\nInc., a Delaware company having an address at 6408 Parkland Drive, Suite 104, Sarasota, Florida 34243, United States of America\n("Company"), and Robert Fugerer, an individual residing in the state of Florida, and having an address at 4819 Sky Blue Drive, Lutz, FL\n33558("Recipient").\nRECITALS\nA.\nCompany and Recipient have initiated or intend to initiate discussions concerning the possibility of entering into a mutually\nadvantageous business relationship whereby Recipient shall perform certain services on behalf of and for the benefit of Company (the\n“LimitedPurpose”).\nB.\nTo facilitate the disclosure of certain Confidential Information (as defined below) by Company to Recipient, the parties desire to enter\ninto this Agreement.\nAGREEMENT\nNow therefore, in consideration of the foregoing recitals, which are hereby incorporated into this Agreement by reference, and the mutual\ncovenants and agreements contained herein, and other good and valuable consideration, the adequacy and receipt of which is hereby\nacknowledged, the parties agree as follows:\n1.\nDefinitions. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the following\nmeanings:\n(a)\n"Confidential Information" mean any information, whether written, oral, magnetic, photographic, optical, or other form,\ntangible or intangible, which has been, or after the date hereof will be, furnished or disclosed by Company, or its employees, consultants,\nrepresentatives or agents, or which Recipient may have access to in connection with the Limited Purpose, which has been designated as being\nconfidential, or which under the circumstances of disclosure reasonably ought to be treated as confidential, including but not limited to any\ninformation pertaining to or regarding the business, financial condition, pricing, sales, strategies, plans, customers, suppliers, properties and\noperations of Company (including such information visually available to Recipient at Company’s premises or Company presentations), and\nincluding without limitation all technical information of any nature whatsoever and all business plans, inventions, trade secrets, know-how,\nmethodologies, concepts, techniques, discoveries, computer programs (including functionality and source code), processes, drawings, designs,\nresearch, plans or specifications relating thereto.\n(b)\n"Related Party" or "Related Parties" shall mean the directors, officers, employees, legal, tax and other professional\nadvisors or consultants of Recipient, to the extent such entities or persons receive Confidential Information.\n2.\nNon-Disclosure and Restricted Use of Confidential Information.\n(a)\nRecipient shall keep in strictest confidence and trust all Confidential Information and, except upon the express prior\nwritten consent of Company, Recipient shall (i) not disclose any Confidential Information to any other entity or person, and (ii) use the\nConfidential Information solely as necessary to implement the Limited Purpose and not for Recipient’s own benefit or for the benefit of any other\nentity or person. Recipient shall take all reasonable safeguards to prevent the disclosure or misuse of the Confidential Information, including\nwithout limitation such measures as the Recipient takes to safeguard its own confidential information, and shall not photocopy, transcribe or\notherwise reproduce or modify any of the Confidential Information except as necessary to implement the Limited Purpose or otherwise upon the\nexpress written consent of the Company.\n1\n(b)\nRecipient may disclose the Confidential Information to Related Parties on a "need to know" basis only. Recipient\nshall inform all Related Parties who have access to the Confidential Information that such Confidential Information is confidential and\nproprietary to Company and shall require each such Related Party to agree to restrictions and obligations at least as strict as those set forth herein\nprior to disclosure of any Confidential Information. Recipient shall diligently enforce any and all confidentiality agreements with Related Parties\nand shall be responsible and liable for any breach of the confidentiality obligations and restrictions on use set forth herein by any Related Party.\n(c)\nThe obligations of Recipient stated in the preceding paragraphs of this Section 2 shall not apply to information that (i)\nis or becomes generally known or available to the public through no wrongful act of the Recipient; (ii) was in the Recipient's possession at the\ntime of disclosure or receipt, as evidenced and verified by prior tangible evidence, and was not acquired under an obligation of confidence; (iii)\nRecipient demonstrates was rightfully received by it from a third party after the time it was disclosed or obtained hereunder, provided that such\nthird party was not under an obligation of confidence with the Company at the time of the third party’s disclosure to Recipient; (iv) is\nindependently developed by Recipient without use of or reference to the Confidential Information and without breach of this Agreement, as\nevidenced and verified by prior tangible evidence; or (v) is required to be disclosed in a judicial or administrative proceeding, or as otherwise\nrequired to be disclosed by law, in any such case after all reasonable legal remedies for maintaining such information in confidence have been\nexhausted, including, but not limited to, giving Company as much advance notice of the possibility of such disclosure as practical so Company\nmay attempt to stop such disclosure or obtain a protective order concerning such disclosure. Recipient shall provide Company with written\nnotice no less than five (5) days prior to the disclosure or use of any information of Company pursuant to this Section 2(c), subsections (i)\nthrough (v).\n(d)\nRecipient shall (i) notify Company immediately of any unauthorized possession, use or knowledge of the Confidential\nInformation, (ii) promptly furnish Company full details of such possession, use or knowledge, and (iii) cooperate with Company against third\nparties as may be deemed necessary by Company to protect its proprietary rights in the Confidential Information.\n3.\nTerm of Agreement. This Agreement shall be effective as of the date of first disclosure of Confidential Information\nand may be terminated, without cause, with respect to future disclosures upon thirty (30) days prior written notice to the other party; provided\nhowever, that all rights and obligations accrued prior to such termination shall survive the termination of this Agreement. Notwithstanding\nanything herein to the contrary, the nondisclosure obligations and restrictions on use with respect to any Confidential Information shall continue\nand bind Recipient for a period of five (5) years after the date of the last disclosure of Confidential Information hereunder, except that the\nnondisclosure obligations and restrictions on use with respect to any Confidential Information that constitutes a trade secret shall continue in\neffect for so long as the Confidential Information remains a trade secret under applicable law. Any termination or expiration of this Agreement\nshall be without prejudice to the rights of Company against Recipient in respect of any claim or breach of any of the provisions of this\nAgreement.\n4.\nReturn of Confidential Information. Recipient shall return to Company, or at Company’s request, destroy, and shall\ncause its Related Parties to return or destroy, the Confidential Information and all copies, transcriptions or other reproductions of, and any notes\nrelating to, the Confidential Information, including without limitation, any memoranda, photocopies, computer files and libraries, computer-\ngenerated data or other similar repositories or archives, upon (i) the accomplishment of the purpose for which the Confidential Information was\nprovided, or (ii) receipt of a written notice from Company requesting return or destruction of the Confidential Information, and upon request,\nshall provide to Company written certification signed by an officer of Recipient that it has complied with the foregoing.\n2\n5.\nOwnership.\n(a)\nAll Confidential Information is and shall remain the property of Company. By disclosing Confidential Information to\nRecipient, Company does not grant any express or implied right to Recipient to or under any patents, copyrights, trademarks, or trade secret\ninformation except as required to implement the Limited Purpose. Company reserves without prejudice the ability to protect its rights under any\nsuch patents, copyrights, trademarks, or trade secrets. Recipient shall not remove any proprietary, copyright, trade secret or other legend from\nany form of the Confidential Information. Recipient shall, at the reasonable written request of Company and at Company’s expense, add to the\nConfidential Information any proprietary, copyright, trade secret or other legend or modify the same, which Company deems necessary to protect\nits intellectual property rights. Without limiting the foregoing, Company shall retain all right, title, and interest in and to all forms of\nConfidential Information delivered or disclosed hereunder, including, without limitation, any patents, copyrights, trademarks, service marks,\ntrade dress, logos, technical information, know-how, trade secrets, and any modifications or enhancements thereto (whether developed by\nCompany, Recipient, any Related Party, or on either party’s behalf) or other intellectual property rights throughout the world, whether currently\nexisting or hereafter developed or acquired, and all applications, disclosures and registrations with respect thereto (collectively, “IP Rights”). If\nRecipient or any third party engaged by Recipient is deemed to have any ownership interest or rights in any IP Rights in the Confidential\nInformation, then Recipient, for no additional consideration, shall assign and/or cause such third party to assign, and Recipient does hereby\nassign, all of such ownership interest and rights exclusively and irrevocably to Company. Recipient shall cooperate with Company and shall\ncause to be executed all such instruments and documents as Company reasonably may request in connection with such assignments and shall do\nall other lawfully permitted acts reasonably required to further the intent of this Section 5; provided, however, this Agreement shall be effective\nregardless of whether any such additional documents are executed. Recipient shall not dispute or contest, directly or indirectly, Company’s right,\ntitle and interest in or to, or the validity and enforceability of, any IP Rights in the Confidential Information (including the attempt to register or\nrecord the same in any jurisdiction). Notwithstanding anything herein to the contrary, this Section 5 shall survive any termination or expiration\nof this Agreement.\n(b)\nRecipient may from time to time provide suggestions, comments or other feedback ("Feedback") to Company with\nrespect to the Confidential Information. Both parties agree that all Feedback is and shall be given entirely voluntarily. Recipient shall not give\nFeedback that is subject to license terms that seek to require any Company product, technology, service or documentation incorporating or\nderived from such Feedback, or any Company intellectual property, to be licensed or otherwise shared with any third party. Recipient hereby\nacknowledges and agrees that all Feedback shall be deemed Confidential Information of Company, subject to the obligations of confidentiality\nand restricted use provided under this Agreement. Furthermore, Recipient hereby acknowledges and agrees that Company shall have the\nexclusive right to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback as Company sees fit, entirely without\nobligation or restriction of any kind on account of intellectual property rights or otherwise.\n6.\nAccuracy and Completeness of Confidential Information. The disclosure of any Confidential Information to Recipient\nshall be solely in Company 's discretion. This Agreement shall not require Company to disclose any information or to require the consummation\nof any transaction in connection with which the Confidential Information is disclosed. Notwithstanding anything to the contrary, Company shall\nnot be deemed to have made any representation or warranty to Recipient concerning the accuracy or completeness of any Confidential\nInformation, except to the extent that such representation or warranty may be expressly set forth in a definitive written agreement concerning any\nsubsequent business relationship.\n7.\nIndependent Contractors. Neither this Agreement, nor any terms and conditions contained herein, will be construed as\ncreating a partnership, joint venture, or agency relationship or as granting a franchise. The parties are independent contractors each acting for its\nown account, and neither is authorized to make any commitment or representation, express or implied, on the other’s behalf.\n3\n8.\nRemedies. Recipient acknowledges and agrees that Company would be irreparably harmed if any of the Confidential\nInformation were to be disclosed to third parties, or if any use were to be made of the Confidential Information other than that specified in this\nAgreement, and further agrees that Company shall have the right to seek and obtain injunctive relief upon any violation or threatened violation of\nthe terms of this Agreement without the necessity of posting bond or other security, in addition to all other rights and remedies available to\nCompany at law or in equity. Any trade secrets of the Company will be entitled to all of the protections and benefits under the applicable\nUniform Trade Secrets Act and any other applicable law. If any information that Company deems to be a trade secret is found by a court of\ncompetent jurisdiction not to be a trade secret for purposes of this Agreement, such information nevertheless will be considered Confidential\nInformation for purposes of this Agreement. Recipient hereby waives any requirement that the Company submit proof of the economic value of\nany trade secret.\n9.\nIndemnity. Recipient shall indemnify Company for and against all damages, losses, claims, costs (including reasonable\nattorneys' fees), expenses and liabilities, suffered or incurred as a direct or indirect result of Recipient failing (whether intentionally or not) to\nfully comply with its covenants and obligations under this Agreement, including by virtue of any act of any Related Party.\n10.\nEntire Agreement. This Agreement sets forth the complete and exclusive understanding of the parties regarding the\nsubject matter of this Agreement and supersedes all prior agreements, understandings, and communications, oral or written, between the parties\nregarding the subject matter of this Agreement. This Agreement is not, however, intended to limit any rights that Company may have under\ntrade secret, copyright, patent, trademark or other laws that may apply to the subject matter of this Agreement both during and after the term of\nthis Agreement.\n11.\nAmendments. No amendment or waiver of any term of this Agreement shall be effective unless such amendment or\nwaiver is in writing and is signed by each of the parties hereto.\n12.\nAssignment. Recipient shall not assign or transfer, in whole or in part and whether by contract or operation of law,\nthis Agreement, or any rights or obligations hereunder, without the prior written consent of Company. Subject to the foregoing, this Agreement\nshall be binding upon, and shall inure to the benefit of, the parties and their respective representatives, successors and assigns.\n13.\nAttorneys' Fees. If any party shall commence any action or proceeding against the other in order to enforce the\nprovisions of this Agreement, or to recover damages as the result of the alleged breach of any of the provisions of this Agreement, the prevailing\nparty therein shall be entitled to recover all reasonable costs incurred in connection therewith against the party commencing such action or the\nparty who has breached this Agreement, as the case may be, including reasonable attorneys' fees.\n14.\nApplicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of\nFlorida, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State\nof Florida. Any suit to enforce any provision of this Agreement, or arising out of or based upon this Agreement, shall be brought exclusively in\nthe United States District Court for the District of Florida or the District Court in and for the city of Sarasota and the County of Sarasota, State of\nFlorida. Each party hereby agrees that such courts shall have in personam jurisdiction and venue with respect to such party, and each party\nhereby submits to the in personam jurisdiction and venue of such courts.\n15.\nSeverability. If any provision of the Agreement shall be held by a court competent jurisdiction to be illegal, invalid or\nunenforceable, the parties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the parties’\nintentions and the remaining provisions shall remain in full force and effect.\n4\n[SIGNATURE PAGE FOLLOWS]\nThis Agreement has been executed as of the date first set forth above.\nSun Energy Solar, Inc..\nBy: /s/Carl L. Smith\nTitle:\nCEO\nDate:\nJuly 10, 2006\nRecipient\nSignature: /s/ Robert\nFugerer\nPrinted:\nRobert Fugerer\nDate:\nFebruary 18, 2006
+ec884c36abae8ab1ce4a5465771293cb.pdf	effective_date jurisdiction party term	EX-2.24 ex2-2.txt NON-COMPETITIONANDNON-DISCLOSURE AGREEMENT ----------------------------------------\n-- -- THI S NO N-COMPETITION AND NON-DISCLOSURE AGREEMENT (the "Agreement") is made and entered\ninto as of the 1st day of April, 2003, by and between BELCAN CORPORATION, an Ohio corporation ("Belcan"), and\nARC COMMUNICATIONS, INC., a New Jersey corporation ("ARC"). All initially capitalized terms not otherwise\ndefined shall have the meanings ascribed to them in the Purchase Agreement (later defined). WHEREAS, the parties\nhereto are parties to a certain Stock Purchase Agreement (the "Purchase Agreement") dated as of April 1, 2003, pursuant\nto which ARC agreed to sell to Belcan the Purchased Shares in the Company; WHEREAS, ARC will receive valuable\nconsideration from Belcan for the sale of the Purchased Shares in the Company and will also receive the Note as\nadditional consideration for its covenants contained herein; WHEREAS, ARC has had access to all material and\notherwise confidential information relating to the Company; WHEREAS, the Company is engaged in the business of\nproviding on-line training to professionals in the medical arena (the "Business"); WHEREAS, Belcan would not be\nwilling to enter into the Purchase Agreement without the agreement of ARC to execute this Non-Competition and Non-\nDisclosure Agreement, and Belcan has expressly conditioned its obligations under the Purchase Agreement on the\nentering into of this Non-Competition and Non-Disclosure Agreement. NOW, THEREFORE, in pursuance of the above\nand in consideration of the terms and conditions contained herein and for other good and valuable considerations, the\nreceipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Non-Disclosure of the\nCompany's Confidential Information and Trade ----------------------------------------------------------------------- Secrets. ARC\nhas learned trade secrets and confidential information of the ------- Company, including, but not limited to, the software\nof the Company, marketing, price information, customer lists, identities of customer contact persons, lists of prospective\ncustomers, market research, sales systems, marketing programs, budgets, pricing strategy, identity and requirements of\nnational accounts, methods of operating, other trade secrets and confidential information regarding customers and\nemployees of the Company or its customers and other information about the Company's Business that is not readily\nknown to the public and gives the Company an opportunity to obtain an advantage over competitors who do not know\nsuch information (collectively, the "Confidential Information"). ARC acknowledges that the Company has invested\nsubstantial sums in the development of its Confidential Information. ARC covenants and agrees that they will not,\ndirectly or indirectly, disclose or communicate to any person or entity any Confidential Information of the Company;\nexcept (i) in connection with the enforcement of ARC's rights under the Purchase Agreement, or (ii) as otherwise -2-\nrequired by law. This covenant has no geographical or territorial restriction or limitation and applies no matter where\nARC may be located in the future. 2. Non-Solicitation Covenant. For a period of five (5) years from the date --------------\n-- -- - -- - -- - - hereof, ARC, acting either directly or indirectly, through any other person, firm, or corporation, covenants and\nagrees not to (i) induce or attempt to induce or influence any employee of the Company to terminate employment with\nthe Company when the Company desires to retain that person's services; (ii) in any way interfere with the relationship\nbetween the Company and any employee of the Company; or (iii) employ, or otherwise engage as an employee,\nindependent contractor or otherwise, any employee of the Company. 3. Non-Competition. For a period of five (5) years\nfrom the date hereof, --------------- ARC shall not, acting directly or indirectly, (i) have any ownership interest in any\ncompeting business, (ii) call on, solicit or have business communications with respect to a competing business with any\nof the Company's customers or prospective customers for the purpose of obtaining competing business from such\ncustomer or prospective customer other than for the benefit of the Company, or (iii) participate in the formation or start-\nup of a competing business. As used in this Agreement, the term "competing business" means any business competing\nwith the Company for the Company's Business anywhere in the United States. As used in this Agreement, the term\n"customer" means any customer of the Company whose identity ARC learned through ARC's ownership of the Company\nor with whom ARC had business contact during the twelve (12) months immediately prior to the date hereof. 4. Return\nof Confidential Information. Upon the Closing (as defined in the ----------------------------------- Purchase Agreement) of\nthe transactions contemplated by the Purchase Agreement, ARC agrees that all copies and originals of all documents and\nother materials containing or referring to the Company's Confidential Information as may be in ARC's possession, or\nover which ARC may have control, shall be delivered by ARC to Belcan immediately, with no request being required. 5.\nInjunctive Relief. ARC acknowledges and agrees that a breach of any of ------------------ the covenants set forth in this\nAgreement will cause irreparable injury and damage to Belcan for which Belcan would have no adequate remedy at law,\nand ARC further agrees that in the event of said breach, Belcan, without having to prove damages, shall be entitled to an\nimmediate restraining order and injunction to prevent such violation or continued violation, and to all costs and\nexpenses, including Belcan's reasonable attorney fees, in addition to any other remedies to which Belcan may be entitled\nat law or equity. 6. Severability. If any provision of this Agreement is held to be illegal, ------------- invalid, or\nunenforceable in any respect, Belcan and ARC agree that such term or provision shall be deemed to be modified to the\nextent necessary to permit its enforcement to the maximum extent permitted by applicable law. 7. Assignment. This\nAgreement shall be binding upon and inure to the ----------- benefit of Belcan, its successors and assigns. 8. Governing\nLaw, Forum Selection, and Consent to Personal Jurisdiction. ------------------------------------------------------------------------\nThis Agreement shall be governed by the laws of the State of Ohio. -3- The remainder of this page intentionally left\nblank. -4- IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above\nwritten. WITNESSES: BELCAN CORPORATION BY: /s/Richard J. Lajoie, Jr. - -- - -- - -- - -- - -- - -- -- - -- - -- - -- Richard J.\nLajoie, Jr. Vice President ARC COMMUNICATIONS, INC. BY: /s/ Michael Rubel ----------------------------- Michael\nRubel Chief Operating Officer	EX-2.2 4 ex2-2.txt NON-COMPETITION AND NON-DISCLOSURE AGREEMENT ------nmmmmom oo\n---- THIS NON-COMPETITION AND NON-DISCLOSURE AGREEMENT (the "Agreement") is made and entered\ninto as of the 1st day of April, 2003, by and between BELCAN CORPORATION, an Ohio corporation ("Belcan"), and\nARC COMMUNICATIONS, INC., a New Jersey corporation ("ARC"). All initially capitalized terms not otherwise\ndefined shall have the meanings ascribed to them in the Purchase Agreement (later defined). WHEREAS, the parties\nhereto are parties to a certain Stock Purchase Agreement (the "Purchase Agreement") dated as of April 1, 2003, pursuant\nto which ARC agreed to sell to Belcan the Purchased Shares in the Company; WHEREAS, ARC will receive valuable\nconsideration from Belcan for the sale of the Purchased Shares in the Company and will also receive the Note as\nadditional consideration for its covenants contained herein; WHEREAS, ARC has had access to all material and\notherwise confidential information relating to the Company; WHEREAS, the Company is engaged in the business of\nproviding on-line training to professionals in the medical arena (the "Business"); WHEREAS, Belcan would not be\nwilling to enter into the Purchase Agreement without the agreement of ARC to execute this Non-Competition and Non-\nDisclosure Agreement, and Belcan has expressly conditioned its obligations under the Purchase Agreement on the\nentering into of this Non-Competition and Non-Disclosure Agreement. NOW, THEREFORE, in pursuance of the above\nand in consideration of the terms and conditions contained herein and for other good and valuable considerations, the\nreceipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Non-Disclosure of the\nCompany's Confidential Information and Trade ----------===mm = Secrets. ARC\nhas learned trade secrets and confidential information of the ------- Company, including, but not limited to, the software\nof the Company, marketing, price information, customer lists, identities of customer contact persons, lists of prospective\ncustomers, market research, sales systems, marketing programs, budgets, pricing strategy, identity and requirements of\nnational accounts, methods of operating, other trade secrets and confidential information regarding customers and\nemployees of the Company or its customers and other information about the Company's Business that is not readily\nknown to the public and gives the Company an opportunity to obtain an advantage over competitors who do not know\nsuch information (collectively, the "Confidential Information"). ARC acknowledges that the Company has invested\nsubstantial sums in the development of its Confidential Information. ARC covenants and agrees that they will not,\ndirectly or indirectly, disclose or communicate to any person or entity any Confidential Information of the Company;\nexcept (i) in connection with the enforcement of ARC's rights under the Purchase Agreement, or (ii) as otherwise -2-\nrequired by law. This covenant has no geographical or territorial restriction or limitation and applies no matter where\nARC may be located in the future. 2. Non-Solicitation Covenant. For a period of five (5) years from the date --------------\n------------ hereof, ARC, acting either directly or indirectly, through any other person, firm, or corporation, covenants and\nagrees not to (i) induce or attempt to induce or influence any employee of the Company to terminate employment with\nthe Company when the Company desires to retain that person's services; (ii) in any way interfere with the relationship\nbetween the Company and any employee of the Company; or (iii) employ, or otherwise engage as an employee,\nindependent contractor or otherwise, any employee of the Company. 3. Non-Competition. For a period of five (5) years\nfrom the date hereof, --------------- ARC shall not, acting directly or indirectly, (i) have any ownership interest in any\ncompeting business, (ii) call on, solicit or have business communications with respect to a competing business with any\nof the Company's customers or prospective customers for the purpose of obtaining competing business from such\ncustomer or prospective customer other than for the benefit of the Company, or (iii) participate in the formation or start-\nup of a competing business. As used in this Agreement, the term "competing business" means any business competing\nwith the Company for the Company's Business anywhere in the United States. As used in this Agreement, the term\n"customer" means any customer of the Company whose identity ARC learned through ARC's ownership of the Company\nor with whom ARC had business contact during the twelve (12) months immediately prior to the date hereof. 4. Return\nof Confidential Information. Upon the Closing (as defined in the -------=--=-=--=mmemmmmmmmeeeeo Purchase Agreement) of\nthe transactions contemplated by the Purchase Agreement, ARC agrees that all copies and originals of all documents and\nother materials containing or referring to the Company's Confidential Information as may be in ARC's possession, or\nover which ARC may have control, shall be delivered by ARC to Belcan immediately, with no request being required. 5.\nInjunctive Relief. ARC acknowledges and agrees that a breach of any of ------------------ the covenants set forth in this\nAgreement will cause irreparable injury and damage to Belcan for which Belcan would have no adequate remedy at law,\nand ARC further agrees that in the event of said breach, Belcan, without having to prove damages, shall be entitled to an\nimmediate restraining order and injunction to prevent such violation or continued violation, and to all costs and\nexpenses, including Belcan's reasonable attorney fees, in addition to any other remedies to which Belcan may be entitled\nat law or equity. 6. Severability. If any provision of this Agreement is held to be illegal, ------------- invalid, or\nunenforceable in any respect, Belcan and ARC agree that such term or provision shall be deemed to be modified to the\nextent necessary to permit its enforcement to the maximum extent permitted by applicable law. 7. Assignment. This\nAgreement shall be binding upon and inure to the ----------- benefit of Belcan, its successors and assigns. 8. Governing\nLaw, Forum Selection, and Consent to Personal Jurisdiction. ---==-=-========= - o e oo\nThis Agreement shall be governed by the laws of the State of Ohio. -3- The remainder of this page intentionally left\nblank. -4- IN WITNESS WHEREQF, the parties have executed this Agreement as of the date and year first above\nwritten. WITNESSES: BELCAN CORPORATION BY: /s/Richard J. Lajoie, Jr. -------=---mmmmmmmmmmmm - Richard J.\nLajoie, Jr. Vice President ARC COMMUNICATIONS, INC. BY: /s/ Michael Rubel --------------==nemmeeeeeu- Michael\nRubel Chief Operating Officer	EX-2.2 4 ex2-2.txt NON-COMPETITION AND NON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION AND NON-DISCLOSURE AGREEMENT (the "Agreement") is made and entered\ninto as of the 1st day of April, 2003, by and between BELCAN CORPORATION, an Ohio corporation ("Belcan"), and\nARC COMMUNICATIONS, INC., a New Jersey corporation ("ARC"). All initially capitalized terms not otherwise\ndefined shall have the meanings ascribed to them in the Purchase Agreement (later defined). WHEREAS, the parties\nhereto are parties to a certain Stock Purchase Agreement (the "Purchase Agreement") dated as of April 1, 2003, pursuant\nto which ARC agreed to sell to Belcan the Purchased Shares in the Company; WHEREAS, ARC will receive valuable\nconsideration from Belcan for the sale of the Purchased Shares in the Company and will also receive the Note as\nadditional consideration for its covenants contained herein; WHEREAS, ARC has had access to all material and\notherwise confidential information relating to the Company; WHEREAS, the Company is engaged in the business of\nproviding on-line training to professionals in the medical arena (the "Business"); WHEREAS, Belcan would not be\nwilling to enter into the Purchase Agreement without the agreement of ARC to execute this Non-Competition and Non-\nDisclosure\nAgreement,\nand\nBelcan\nhas\nexpressly\nconditioned\nits\nobligations\nunder\nthe\nPurchase\nAgreement\non\nthe\nentering into of this Non-Competition and Non-Disclosure Agreement. NOW, THEREFORE, in pursuance of the above\nand in consideration of the terms and conditions contained herein and for other good and valuable considerations, the\nreceipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Non-Disclosure of the\nCompany's Confidential Information and Trade\nSecrets. ARC\nhas learned trade secrets and confidential information of the Company, including, but not limited to, the software\nof the Company, marketing, price information, customer lists, identities of customer contact persons, lists of prospective\ncustomers, market research, sales systems, marketing programs, budgets, pricing strategy, identity and requirements\nof\nnational accounts, methods of operating, other trade secrets and confidential information regarding customers and\nemployees of the Company or its customers and other information about the Company's Business that is not readily\nknown to the public and gives the Company an opportunity to obtain an advantage over competitors who do not know\nsuch information (collectively, the "Confidential Information"). ARC acknowledges that the Company has invested\nsubstantial sums in the development of its Confidential Information. ARC covenants and agrees that they will not,\ndirectly or indirectly, disclose or communicate to any person or entity any Confidential Information of the Company;\nexcept (i) in connection with the enforcement of ARC's rights under the Purchase Agreement, or (ii) as otherwise -2-\nrequired by law. This covenant has no geographical or territorial restriction or limitation and applies no matter where\nARC may be located in the future. 2. Non-Solicitation Covenant. For a period of five (5) years from the date\nhereof, ARC, acting either directly or indirectly, through any other person, firm, or corporation, covenants and\nagrees\nnot\nto\n(i)\ninduce\nor\nattempt\nto\ninduce\nor\ninfluence\nany\nemployee\nof\nthe\nCompany\nto\nterminate\nemployment\nwith\nthe Company when the Company desires to retain that person's services; (ii) in any way interfere with the relationship\nbetween the Company and any employee of the Company; or (iii) employ, or otherwise engage as an employee,\nindependent contractor or otherwise, any employee of the Company. 3. Non-Competition. For a period of five (5)\nyears\nfrom the date hereof,\nARC shall not, acting directly or indirectly, (i) have any ownership interest in any\ncompeting business, (ii) call on, solicit or have business communications with respect to a competing business with any\nof the Company's customers or prospective customers for the purpose of obtaining competing business from such\ncustomer or prospective customer other than for the benefit of the Company, or (iii) participate in the formation or start-\nup of a competing business. As used in this Agreement, the term "competing business" means any business competing\nwith the Company for the Company's Business anywhere in the United States. As used in this Agreement, the term\n"customer" means any customer of the Company whose identity ARC learned through ARC's ownership of the Company\nor with whom ARC had business contact during the twelve (12) months immediately prior to the date hereof. 4. Return\nof Confidential Information. Upon the Closing (as defined in the\nPurchase Agreement) of\nthe transactions contemplated by the Purchase Agreement, ARC agrees that all copies and originals of all documents and\nother materials containing or referring to the Company's Confidential Information as may be in ARC's possession, or\nover which ARC may have control, shall be delivered by ARC to Belcan immediately, with no request being required\n5.\nInjunctive Relief. ARC acknowledges and agrees that a breach of any of\nthe covenants set forth in this\nAgreement will cause irreparable injury and damage to Belcan for which Belcan would have no adequate remedy at law,\nand ARC further agrees that in the event of said breach, Belcan, without having to prove damages, shall be entitled\nto\nan\nimmediate restraining order and injunction to prevent such violation or continued violation, and to all costs and\nexpenses, including Belcan's reasonable attorney fees, in addition to any other remedies to which Belcan may be entitled\nat law or equity. 6. Severability. If any provision of this Agreement is held to be illegal,\ninvalid, or\nunenforceable in any respect, Belcan and ARC agree that such term or provision shall be deemed to be modified to the\nextent necessary to permit its enforcement to the maximum extent permitted by applicable law. 7. Assignment. This\nAgreement shall be binding upon and inure to the\nbenefit of Belcan, its successors and assigns. 8. Governing\nLaw, Forum Selection and Consent to Personal Jurisdiction.\nThis Agreement shall be governed by the laws of the State of Ohio -3- The remainder of this page intentionally left\nblank. -4- IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above\nwritten. WITNESSES: BELCAN CORPORATION BY: /s/Richard J. Lajoie, Jr.\nRichard J.\nLajoie, Jr. Vice President ARC COMMUNICATIONS INC. BY: /s/ Michael Rubel\nMichael\nRubel Chief Operating Officer	EX-2.24 ex2-2.txt NON-COMPETITIONANDNON-DISCLOSURE AGREEMENT ----------------------------------------\n-- -- THI S NO N-COMPETITION AND NON-DISCLOSURE AGREEMENT (the "Agreement") is made and entered\ninto as of the 1st day of April, 2003, by and between BELCAN CORPORATION, an Ohio corporation ("Belcan"), and\nARC COMMUNICATIONS, INC., a New Jersey corporation ("ARC"). All initially capitalized terms not otherwise\ndefined shall have the meanings ascribed to them in the Purchase Agreement (later defined). WHEREAS, the parties\nhereto are parties to a certain Stock Purchase Agreement (the "Purchase Agreement") dated as of April 1, 2003, pursuant\nto which ARC agreed to sell to Belcan the Purchased Shares in the Company; WHEREAS, ARC will receive valuable\nconsideration from Belcan for the sale of the Purchased Shares in the Company and will also receive the Note as\nadditional consideration for its covenants contained herein; WHEREAS, ARC has had access to all material and\notherwise confidential information relating to the Company; WHEREAS, the Company is engaged in the business of\nproviding on-line training to professionals in the medical arena (the "Business"); WHEREAS, Belcan would not be\nwilling to enter into the Purchase Agreement without the agreement of ARC to execute this Non-Competition and Non-\nDisclosure Agreement, and Belcan has expressly conditioned its obligations under the Purchase Agreement on the\nentering into of this Non-Competition and Non-Disclosure Agreement. NOW, THEREFORE, in pursuance of the above\nand in consideration of the terms and conditions contained herein and for other good and valuable considerations, the\nreceipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Non-Disclosure of the\nCompany's Confidential Information and Trade ----------------------------------------------------------------------- Secrets. ARC\nhas learned trade secrets and confidential information of the ------- Company, including, but not limited to, the software\nof the Company, marketing, price information, customer lists, identities of customer contact persons, lists of prospective\ncustomers, market research, sales systems, marketing programs, budgets, pricing strategy, identity and requirements of\nnational accounts, methods of operating, other trade secrets and confidential information regarding customers and\nemployees of the Company or its customers and other information about the Company's Business that is not readily\nknown to the public and gives the Company an opportunity to obtain an advantage over competitors who do not know\nsuch information (collectively, the "Confidential Information"). ARC acknowledges that the Company has invested\nsubstantial sums in the development of its Confidential Information. ARC covenants and agrees that they will not,\ndirectly or indirectly, disclose or communicate to any person or entity any Confidential Information of the Company;\nexcept (i) in connection with the enforcement of ARC's rights under the Purchase Agreement, or (ii) as otherwise -2-\nrequired by law. This covenant has no geographical or territorial restriction or limitation and applies no matter where\nARC may be located in the future. 2. Non-Solicitation Covenant. For a period of five (5) years from the date --------------\n-- -- - -- - -- - - hereof, ARC, acting either directly or indirectly, through any other person, firm, or corporation, covenants and\nagrees not to (i) induce or attempt to induce or influence any employee of the Company to terminate employment with\nthe Company when the Company desires to retain that person's services; (ii) in any way interfere with the relationship\nbetween the Company and any employee of the Company; or (iii) employ, or otherwise engage as an employee,\nindependent contractor or otherwise, any employee of the Company. 3. Non-Competition. For a period of five (5) years\nfrom the date hereof, --------------- ARC shall not, acting directly or indirectly, (i) have any ownership interest in any\ncompeting business, (ii) call on, solicit or have business communications with respect to a competing business with any\nof the Company's customers or prospective customers for the purpose of obtaining competing business from such\ncustomer or prospective customer other than for the benefit of the Company, or (iii) participate in the formation or start-\nup of a competing business. As used in this Agreement, the term "competing business" means any business competing\nwith the Company for the Company's Business anywhere in the United States. As used in this Agreement, the term\n"customer" means any customer of the Company whose identity ARC learned through ARC's ownership of the Company\nor with whom ARC had business contact during the twelve (12) months immediately prior to the date hereof. 4. Return\nof Confidential Information. Upon the Closing (as defined in the ----------------------------------- Purchase Agreement) of\nthe transactions contemplated by the Purchase Agreement, ARC agrees that all copies and originals of all documents and\nother materials containing or referring to the Company's Confidential Information as may be in ARC's possession, or\nover which ARC may have control, shall be delivered by ARC to Belcan immediately, with no request being required. 5.\nInjunctive Relief. ARC acknowledges and agrees that a breach of any of ------------------ the covenants set forth in this\nAgreement will cause irreparable injury and damage to Belcan for which Belcan would have no adequate remedy at law,\nand ARC further agrees that in the event of said breach, Belcan, without having to prove damages, shall be entitled to an\nimmediate restraining order and injunction to prevent such violation or continued violation, and to all costs and\nexpenses, including Belcan's reasonable attorney fees, in addition to any other remedies to which Belcan may be entitled\nat law or equity. 6. Severability. If any provision of this Agreement is held to be illegal, ------------- invalid, or\nunenforceable in any respect, Belcan and ARC agree that such term or provision shall be deemed to be modified to the\nextent necessary to permit its enforcement to the maximum extent permitted by applicable law. 7. Assignment. This\nAgreement shall be binding upon and inure to the ----------- benefit of Belcan, its successors and assigns. 8. Governing\nLaw, Forum Selection, and Consent to Personal Jurisdiction. ------------------------------------------------------------------------\nThis Agreement shall be governed by the laws of the State of Ohio. -3- The remainder of this page intentionally left\nblank. -4- IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above\nwritten. WITNESSES: BELCAN CORPORATION BY: /s/Richard J. Lajoie, Jr. - -- - -- - -- - -- - -- - -- -- - -- - -- - -- Richard J.\nLajoie, Jr. Vice President ARC COMMUNICATIONS, INC. BY: /s/ Michael Rubel ----------------------------- Michael\nRubel Chief Operating Officer
+f1bfe37debd61ba519ec2671755a49a9.pdf	effective_date jurisdiction party term	EX-7.1 2 dex71.htm CONFIDENTIALITY AGREEMENT\nExhibit 7.1\nMarch 21, 2011\nLeonard Green & Partners, L.P.\n11111 Santa Monica Boulevard\nSuite 2000\nLos Angeles, CA 90025\nAttention: Jonathan Seiffer\nGentlemen:\nIn connection with your consideration of a possible negotiated transaction with BJ’s Wholesale, Inc. (collectively with its subsidiaries,\naffiliates and divisions, the “Company”), you have requested, and the Company is prepared to make available to you, certain information concerning\nits business, operations, assets and liabilities. As a condition to such information being furnished, you agree to treat any information concerning the\nCompany (whether prepared by the Company, its advisors or otherwise) which has been or is furnished to you or your directors, officers, employees,\nagents or advisors (including, without limitation, attorneys, accountants, consultants and financial advisors) (collectively, “Representatives”) by or\non behalf of the Company in connection with your consideration of a possible negotiated transaction with the Company (herein collectively referred\nto as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions\nhereinafter set forth.\nThe term “Evaluation Material” shall be deemed to include all such information furnished to you or any of your Representatives by the\nCompany or any of its Representatives, irrespective of the form of communication (whether provided orally or in writing or provided or stored on\nelectronic or magnetic media, film or any other form or media), and whether such information is so furnished before, on or after the date hereof, or\ninformation which you or your Representatives otherwise learn or obtain, through observation or through analysis of such information, and all\nanalyses, compilations, data, forecasts, studies, notes, interpretations, memoranda or other documents prepared by you or your Representatives\ncontaining, reflecting or based in whole or in part on any such information. The term “Evaluation Material” does not include information which (i) at\nthe time of disclosure is generally available to the public other than as a result of a disclosure directly or indirectly by you or your Representatives;\n(ii) you can establish was within your or any of your Representatives’ possession prior to it being furnished to you or your Representatives by or on\nbehalf of the Company pursuant hereto, provided that such information is not known to you to be subject to another confidentiality agreement with\nor other contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information; (iii) becomes\navailable to you on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not\nknown to you to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or\nany other party with respect to such information; or (iv) you can establish is independently developed by you or your Representatives without\nutilizing in any way any Evaluation Material or violating any of your obligations under this letter agreement.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 2\nYou hereby agree that you and your Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible negotiated\ntransaction between the Company and you, that the Evaluation Material will be kept confidential and that you and your Representatives will not\ndisclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) you may make any disclosure of such information to\nwhich the Company gives its prior written consent; and (ii) any of such information may be disclosed to your Representatives who need to know\nsuch information for the sole purpose of evaluating a possible negotiated transaction with the Company, who agree to keep such information\nconfidential and to use such information solely for the limited purpose described in this clause (ii) and who are provided with a copy of this letter\nagreement and who are instructed to comply with the terms thereof. In any event, you shall be responsible for any breach of this letter agreement by\nany of your Representatives, and you agree, at your sole expense, to take all reasonable measures (including, if necessary, court proceedings) to\nrestrain your Representatives from prohibited or unauthorized disclosure or use of the Evaluation Material. It is understood and agreed that the\nCompany may, in its discretion, from time to time determine that disclosure of certain competitively sensitive Evaluation Material to certain of your\nRepresentatives may be inappropriate, in which case at the Company’s request you shall refrain from disclosing such Evaluation Material to such\nRepresentatives.\nIn addition, both parties agree that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any\nother person the fact that the Evaluation Material has been made available to it, that investigations, discussions or negotiations are taking place\nconcerning a possible transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the status\nthereof or the identity of the parties thereto), provided that either party may make such disclosure if such party has received advice from its outside\ncounsel that such disclosure must be made in order to comply with any law or regulation and provided further that each party to this letter agreement\nacknowledges that (i) this letter agreement shall be disclosed as an exhibit to the amendment to the Schedule 13D that will be filed by you as\npromptly as practicable following execution of this letter agreement and (ii) such amendment to the Schedule 13D shall disclose that Evaluation\nMaterial will be made available to you and that you will be evaluating a potential acquisition of the Company. Without limiting the generality of the\nforegoing, you further agree that, without the prior written consent of the Company, you will not, directly or indirectly, enter into any agreement,\narrangement or understanding, or any discussions which might lead to such agreement, arrangement or understanding, with any person regarding a\npossible transaction involving the Company, in each case other than any of your Representatives. The term “person” as used in this letter agreement\nshall be broadly interpreted to include the media and any governmental representative or authority, corporation, company, partnership, joint venture,\ngroup, limited liability company, other entity or individual.\nExcept with respect to the debt financing sources previously identified to and agreed by the Representatives of the Company (each, an\n“Exempt Party”), you agree that neither you nor any of your Representatives will provide the Evaluation Material to, disclose information of the type\ndescribed in the preceding paragraph to, or have any discussions concerning a potential transaction involving the Company with, any potential debt\nor equity financing source without\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 3\nthe written consent of the Company. Whether or not any such consent is granted, you agree that you will not, directly or indirectly, require, instruct\nor encourage any financial institutions or financing sources, including any financial advisor, or any legal or other advisory firms, not to be retained\nby any other person in connection with a potential transaction with the Company and, if requested, you agree to consent to any such retention, and to\nwaive any actual or alleged conflict that may arise from any existing or past relationship with you, in connection with a potential transaction with the\nCompany. With respect to any Exempt Party, or in the event the Company provides such consent with respect to any other potential financing source,\nsuch Exempt Party or other potential financing source shall be considered a Representative for all purposes of this letter agreement. However, if the\nCompany provides such consent with respect to any potential equity financing source, in connection therewith such potential equity financing source\nmay execute and deliver to the Company, prior to the receipt of any Evaluation Material from you, a non-disclosure agreement with the Company in\nform and substance reasonably satisfactory to the Company, in which case you and such potential equity financing source shall each be bound by\nyour respective agreements with the Company and not by the other’s, and neither you nor such potential equity financing source shall be responsible\nor liable for any breach by the other.\nIn the event that you or any of your Representatives are requested or required (by oral questions, interrogatories, requests for information or\ndocuments in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material, you shall\nprovide the Company with prompt written notice (to the extent legally permitted) of any such request or requirement and shall consult and cooperate\nwith the Company to the fullest extent permitted by law so that the Company may seek (at its sole cost and expense) a protective order or other\nappropriate remedy (including taking legally available steps to resist or narrow any such request or requirement) and/or waive compliance with the\nprovisions of this letter agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of\nyour Representatives are nonetheless, in the opinion of your respective outside counsel, legally compelled to disclose Evaluation Material to any\ntribunal or other entity, you or your Representatives may, without liability hereunder, disclose to such tribunal or other entity only that portion of the\nEvaluation Material which such counsel advises you or your Representative is legally required to be disclosed, provided that you and your\nRepresentative each exercise your best efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by cooperating\nwith the Company to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation\nMaterial by such tribunal or other entity.\nIf either party decides that it does not wish to proceed with a transaction with the other party, it will promptly inform the other party of that\ndecision. In that case, or at any time upon the request of the Company for any reason, you will promptly (and in no event later than five business\ndays after such request), at your option, deliver to the Company, or destroy, all Evaluation Material (and all copies thereof, regardless of the form or\nmedia on which it may be stored or embodied ) furnished to you or your Representatives by or on behalf of the Company pursuant hereto and you\nand your Representatives shall not retain any copies, extracts or other reproductions (regardless of the form thereof or media on which they may be\nstored or embodied) in whole or in part of such material; provided that nothing shall require the alteration,\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 4\nmodification, deletion or destruction of latent data (such as deleted files, and other non-logical data types, such as memory dumps, swap files,\ntemporary files, printer spool files, and metadata) that can only be retrieved by computer forensics experts and is generally considered inaccessible\nwithout the use of specialized tools and techniques. In the event of such a decision or request, all Evaluation Material prepared by you or your\nRepresentatives shall be destroyed and no copy thereof may be retained (regardless of the form thereof or media on which it may be stored or\nembodied), except that you and your Representatives may retain data or electronic records containing Evaluation Material prepared by you or your\nRepresentatives for the purposes of backup, recovery, contingency planning or business continuity planning so long as such data or records, to the\nextent not permanently deleted or overwritten in the ordinary course of business, are not accessible in the ordinary course of business and are not\naccessed except as required for backup, recovery, contingency planning or business continuity purposes (and if such data or records are restored or\notherwise become accessible, they must be permanently deleted). In the event of such a decision or request such return and destruction shall, upon\nthe Company’s written request, be certified in writing to the Company by an authorized officer supervising such return and destruction.\nNotwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of\nconfidentiality and other obligations hereunder.\nYou understand and acknowledge that neither the Company nor any of its Representatives, or any of their respective directors, officers,\nstockholders, partners, owners, employees, affiliates or agents make any representation or warranty, express or implied, as to the accuracy or\ncompleteness of the Evaluation Material. You agree that neither the Company nor any of its Representatives, or any of their respective directors,\nofficers, stockholders, partners, owners, employees, affiliates or agents shall have any liability to you or to any of your Representatives or any other\nperson relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or\nwarranties which are made in a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to\nsuch limitations and restrictions as may be specified therein, will have any legal effect.\nIn addition, you hereby acknowledge that you are aware (and that prior to their receipt of any Evaluation Material your Representatives who\nare apprised of a possible transaction have been or will be advised) that the Evaluation Material may contain or may itself be material, non-public\ninformation concerning the Company and that the United States and other applicable securities laws prohibit any person in possession of material,\nnon-public information about a company obtained directly or indirectly from that company from purchasing or selling securities of such company or\nfrom communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell such securities.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of one year from the date hereof, you\nwill not, directly or indirectly, solicit to employ or hire any of the executive officers of the Company, so long as they are employed by the Company\nor any of its subsidiaries and for a period of six months thereafter, without obtaining the prior written consent of the Company. Notwithstanding the\nforegoing, it shall not be a violation of this letter agreement to conduct general solicitations (including through advertisements and/or search firms)\nnot directly targeted to such prohibited individuals.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 5\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of one year from the date hereof (unless\na shorter period is specifically contemplated by the provisions of this paragraph) (such period, the “Standstill Period”), unless you shall have been\nspecifically invited in writing by the Company, neither you nor any of your controlled affiliates will in any manner, directly or indirectly: (a) effect\nor seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way advise, assist or encourage any other\nperson to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial\nownership thereof) or assets of the Company, or any rights to acquire any such securities (including derivative securities representing the right to\nvote or economic benefit of any such securities) or assets; (ii) any tender or exchange offer, merger or other business combination involving the\nCompany; (iii) any recapitalization, restructuring, liquidation, dissolution or other similar extraordinary transaction with respect to the Company; or\n(iv) for a period of nine months from the date hereof, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and\nExchange Commission) or consents to vote any voting securities of the Company; (b) form, join or in any way participate in a “group” (as defined\nunder the 1934 Act) with respect to any securities of the Company, other than in connection with any solicitation of proxies or consents in\naccordance with subsection (a)(iv) above, in which case the Standstill Period shall be for a period of nine months from the date hereof; (c) otherwise\nact, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, other than in\nconnection with any solicitation of proxies or consents in accordance with subsection (a)(iv) above, in which case the Standstill Period shall be for a\nperiod of nine months from the date hereof; (d) negotiate with or provide any information to any person (other than your Representatives in\naccordance with this letter agreement) with respect to, or make any statement or proposal to any person (other than your Representatives in\naccordance with this letter agreement) with respect to, or make any public announcement or proposal or offer whatsoever with respect to, or act as a\nfinancing source for or otherwise invest in any other persons in connection with, or otherwise solicit, seek or offer to effect any transactions or\nactions described, or take any action which might force the Company to make a public announcement regarding any of the types of matters set forth,\nin (a) or (b) above, other than in connection with any solicitation of proxies or consents in accordance with subsection (a)(iv) above, in which case\nthe Standstill Period shall be for a period of nine months from the date hereof and in each case except if you have received advice from outside\ncounsel that disclosure must be made in order to comply with any law or regulation; provided that each party to this letter agreement acknowledges\nthat (i) this letter agreement shall be disclosed as an exhibit to the amendment to the Schedule 13D that will be filed by you as promptly as\npracticable following execution of this letter agreement and (ii) such amendment to the Schedule 13D shall disclose that Evaluation Material will be\nmade available to you and that you will be evaluating a potential acquisition of the Company; or (e) enter into any discussions or arrangements with\nany third party (other than your Representatives in accordance with this letter agreement) with respect to any of the foregoing, other than in\nconnection with any solicitation of proxies or consents in accordance with subsection (a)(iv) above, in which case the Standstill Period shall be for a\nperiod of nine\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 6\nmonths from the date hereof. You also agree during the Standstill Period not to request that the Company (or its directors, officers, employees or\nagents), directly or indirectly, amend or waive any provision of this paragraph (including this sentence). Notwithstanding the foregoing, if at any\ntime during the Standstill Period the Company enters into a definitive agreement with any person relating to a merger, consolidation or other sale of\nall or substantially all of the then outstanding voting securities or assets of the Company, if the Company files for bankruptcy or if any person\ncommences (i) a tender offer or exchange offer with respect to securities representing a majority of the voting power of the Company or (ii) a proxy\nsolicitation after nine months from the date hereof in which the person would acquire the ability to elect a member of the Board of Directors of the\nCompany, in each case the provisions of this paragraph shall automatically terminate and be of no further force and effect. Nothing in this paragraph\nshall prohibit you from (x) acquiring any debt securities issued by the Company, (y) acquiring any securities of the Company through an exchange\noffer or through a plan of reorganization for the Company which, in the case of any transaction described in this clause (y), is confirmed by order of\nthe United States Bankruptcy Court, or (z) participating in or consummating any transactions relating to the Company effected in connection with\nany proposed Company auction sale process under the jurisdiction of a United States Bankruptcy Court. For a period of one year from the date of\nthis letter agreement, the Company will not disclose any material non-public information relating to its business to any person who is known by the\nCompany to be considering making, or has made, an Acquisition Proposal (as hereinafter defined) (such person being a “Third Party”), unless such\nThird Party has executed an agreement (a “Third Party Agreement”) with the Company containing standstill provisions which are no less favorable\nin the aggregate to the Company than the standstill provisions contained in the foregoing provisions of this paragraph (the “Standstill”); provided\nthat the Company may enter into a Third Party Agreement containing standstill provisions that are less favorable to the Company in the aggregate\nthan the Standstill if the Company notifies you of the terms of such standstill provisions as soon as reasonably practicable after the execution of such\nThird Party Agreement, in which case the Standstill as it applies to you pursuant to the terms of this letter agreement shall be automatically amended\nto be substantially similar to the standstill provisions contained in such Third Party Agreement. For purposes of this agreement, “Acquisition\nProposal” means a proposal to acquire more than 50% of the outstanding voting securities of the Company or a substantial portion of the assets of\nthe Company and its subsidiaries. You hereby confirm that, except as set forth in any Schedule 13D filing made by you or your affiliates on or prior\nto the date hereof, as of the date hereof you do not have, directly or indirectly, beneficial ownership of equity securities of the Company, rights or\noptions to own or acquire any such securities (through purchase, exchange, conversion or otherwise), or any derivative securities representing the\nright to (i) vote or economic benefit of any such securities. For the avoidance of doubt, the foregoing provisions of this paragraph shall not in any\nway affect your right to vote, tender or dispose of any equity securities of the Company held by you or any of your affiliates as of the date of this\nletter agreement or (ii) acquire any equity securities of the Company upon exercise, conversion or exchange of any derivative securities held by you\nor any of your affiliates as of the date of this letter agreement, in each such case described in clauses (i) and (ii), as set forth in any Schedule 13D\nfiling made by you or your affiliates on or prior to the date hereof, and any such action taken by you or any of your affiliates shall not in any\ncircumstances be deemed to be a breach of this letter agreement.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 7\nEach party understands and agrees that no contract or agreement providing for any transaction involving the Company shall be deemed to exist\nbetween you and the Company unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and\nuntil a final definitive agreement regarding a transaction between the Company and you has been executed and delivered, neither the Company nor\nyou will be under any legal, fiduciary or other obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement\nor any other written or oral expression with respect to such transaction, except for the matters specifically agreed to herein. Each party further\nacknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made by it or any of its\nRepresentatives with regard to a transaction between the Company and you, and to terminate discussions and negotiations between the parties at any\ntime and for any reason or no reason. You further understand that (i) the Company and its Representatives shall be free to conduct any process for\nany transaction involving the Company, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any\nother interested parties and entering into a preliminary or definitive agreement without prior notice to you or any other person) and (ii) any\nprocedures relating to such process or transaction may be changed at any time without notice to you or any other person. Neither this paragraph nor\nany other provision in this letter agreement can be waived or amended except by written consent of each party, which consent shall specifically refer\nto this paragraph (or such provision) and explicitly make such waiver or amendment. For the purposes of this paragraph, the term “definitive\nagreement” shall not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal\nacceptance of any offer or bid.\nYou agree that all (i) contacts or communications by you or your Representatives with the Company or its employees regarding the Evaluation\nMaterial or a potential transaction, (ii) requests for additional Evaluation Material, (iii) requests for facility tours or management meetings, and\n(iv) discussions or questions regarding procedures shall be made only through representatives of Morgan Stanley & Co. Incorporated or as such\nindividuals may otherwise direct in writing.\nIt is understood and agreed that no failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or\nprivilege hereunder.\nYou recognize and acknowledge the competitive value and confidential nature of the Evaluation Material and that irreparable damage will\nresult to the Company if information contained therein or derived therefrom is disclosed to any third party except as herein provided or is used for\nany purpose other than the evaluation of a possible negotiated transaction with the Company. It is further understood and agreed that money damages\nwould not be a sufficient remedy for any breach of this letter agreement by you or any of your Representatives and that the Company shall be\nentitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be\nthe exclusive remedies for a breach of this letter agreement but shall be in addition to all other remedies available at law or equity.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 8\nThis letter agreement is for the benefit of each party, its Representatives and their respective directors, officers, stockholders, partners, owners,\nemployees, affiliates and agents (provided that, with respect to you, none of your affiliates shall be bound by the terms and conditions of this\nAgreement unless (i) such affiliates are provided Evaluation Material, in which case such affiliates shall be considered a Representative pursuant to\nthis letter agreement, or (ii) such affiliates are expressly contemplated by the provisions hereof to be covered by this letter agreement), and shall be\ngoverned by and construed in accordance with the laws of the State of Delaware, without giving effect to the principles of conflicts of law thereof.\nThe rights of the Company under this letter agreement may be assigned in whole or in part to any purchaser of the Company, which purchaser\nshall be entitled to enforce this letter agreement to the same extent and in the same manner as the Company is entitled to enforce this letter\nagreement. You may not assign your rights or obligations under this letter agreement to any person or entity without the prior written consent of the\nCompany. Subject to the foregoing, this letter agreement shall be binding on the respective successors and assigns of the parties hereto.\nThe letter agreement contains the entire agreement between you and the Company concerning the subject matter hereof and supersedes any\nother agreement concerning the subject matter hereof, including, without limitation, any “clickthrough” agreement relating to the confidentiality of\nthe Evaluation Material agreed to by you in connection with your access to any data site maintained in connection with a Possible Transaction, and\nno modification of this letter agreement or waiver of the terms and conditions hereof will be binding unless approved in writing by each party.\nFor the convenience of the parties, this letter agreement may be executed by facsimile or PDF transmission and in counterparts, each of which\nshall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.\nThis letter agreement also constitutes notice to you that the Company has engaged Wilmer, Cutler, Pickering, Hale and Dorr LLP\n(“WilmerHale”) and a committee of independent directors of the Company has engaged Potter Anderson & Corroon LLP (“Potter Anderson”) as\ntheir respective legal counsel in connection with the potential transaction, and you hereby (i) consent to the continued representation of the Company\nby WilmerHale and the continued representation of the committee of independent directors by Potter Anderson in relation to the potential transaction\nnotwithstanding the fact that WilmerHale or Potter Anderson may have represented, or may currently or in the future represent, you and/or any of\nyour affiliates or Representatives with respect to unrelated matters and (ii) waive any actual or alleged conflict that may arise from their\nrepresentation of the Company in connection with the potential transaction. In addition, you hereby acknowledge that your consent and waiver under\nthis paragraph is voluntary and informed, and that you have obtained independent legal advice with respect to this consent and waiver.\nThe Evaluation Material delivered to you or your Representatives by the Company shall remain the property of the Company. No rights to use,\nlicense or otherwise exploit the Evaluation Material are granted to you or your Representatives, by implication or otherwise. Neither you nor your\nRepresentatives will by virtue of disclosure of the Evaluation Material and/or your or your Representatives’ use of the Evaluation Material acquire\nany rights with respect thereto, all of which rights shall remain exclusively with the Company.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 9\nThis letter agreement will terminate 18 months from the date hereof (except to the extent an earlier date is provided herein as to any specified\nobligations); provided, that no such termination of this letter agreement shall relieve any party from any liability relating to any breach of this letter\nagreement.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 10\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nBJ’s Wholesale, Inc.\nBy: /S/ LON POVICH\nName: Lon Povich\nTitle: Executive Vice President and General Counsel\nAccepted and agreed as of the date first written above:\nLeonard Green & Partners, L.P.\nBy: LGP Management, Inc., its General Partner\nBy: /S/ JONATHAN A. SEIFFER\nName: Jonathan A. Seiffer\nTitle: Senior Vice President	EX-7.1 2 dex71.htm CONFIDENTIALITY AGREEMENT\nExhibit 7.1\nMarch 21, 2011\nLeonard Green & Partners, L.P.\n11111 Santa Monica Boulevard\nSuite 2000\nLos Angeles, CA 90025\nAttention: Jonathan Seiffer\nGentlemen:\nIn connection with your consideration of a possible negotiated transaction with BJ’s Wholesale, Inc. (collectively with its subsidiaries,\naffiliates and divisions, the “Company”), you have requested, and the Company is prepared to make available to you, certain information concerning\nits business, operations, assets and liabilities. As a condition to such information being furnished, you agree to treat any information concerning the\nCompany (whether prepared by the Company, its advisors or otherwise) which has been or is furnished to you or your directors, officers, employees,\nagents or advisors (including, without limitation, attorneys, accountants, consultants and financial advisors) (collectively, “Representatives”) by or\non behalf of the Company in connection with your consideration of a possible negotiated transaction with the Company (herein collectively referred\nto as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions\nhereinafter set forth.\nThe term “Evaluation Material” shall be deemed to include all such information furnished to you or any of your Representatives by the\nCompany or any of its Representatives, irrespective of the form of communication (whether provided orally or in writing or provided or stored on\nelectronic or magnetic media, film or any other form or media), and whether such information is so furnished before, on or after the date hereof, or\ninformation which you or your Representatives otherwise learn or obtain, through observation or through analysis of such information, and all\nanalyses, compilations, data, forecasts, studies, notes, interpretations, memoranda or other documents prepared by you or your Representatives\ncontaining, reflecting or based in whole or in part on any such information. The term “Evaluation Material” does not include information which (i) at\nthe time of disclosure is generally available to the public other than as a result of a disclosure directly or indirectly by you or your Representatives;\n(ii) you can establish was within your or any of your Representatives’ possession prior to it being furnished to you or your Representatives by or on\nbehalf of the Company pursuant hereto, provided that such information is not known to you to be subject to another confidentiality agreement with\nor other contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information; (iii) becomes\navailable to you on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not\nknown to you to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or\nany other party with respect to such information; or (iv) you can establish is independently developed by you or your Representatives without\nutilizing in any way any Evaluation Material or violating any of your obligations under this letter agreement.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 2\nYou hereby agree that you and your Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible negotiated\ntransaction between the Company and you, that the Evaluation Material will be kept confidential and that you and your Representatives will not\ndisclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) you may make any disclosure of such information to\nwhich the Company gives its prior written consent; and (ii) any of such information may be disclosed to your Representatives who need to know\nsuch information for the sole purpose of evaluating a possible negotiated transaction with the Company, who agree to keep such information\nconfidential and to use such information solely for the limited purpose described in this clause (ii) and who are provided with a copy of this letter\nagreement and who are instructed to comply with the terms thereof. In any event, you shall be responsible for any breach of this letter agreement by\nany of your Representatives, and you agree, at your sole expense, to take all reasonable measures (including, if necessary, court proceedings) to\nrestrain your Representatives from prohibited or unauthorized disclosure or use of the Evaluation Material. It is understood and agreed that the\nCompany may, in its discretion, from time to time determine that disclosure of certain competitively sensitive Evaluation Material to certain of your\nRepresentatives may be inappropriate, in which case at the Company’s request you shall refrain from disclosing such Evaluation Material to such\nRepresentatives.\nIn addition, both parties agree that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any\nother person the fact that the Evaluation Material has been made available to it, that investigations, discussions or negotiations are taking place\nconcerning a possible transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the status\nthereof or the identity of the parties thereto), provided that either party may make such disclosure if such party has received advice from its outside\ncounsel that such disclosure must be made in order to comply with any law or regulation and provided further that each party to this letter agreement\nacknowledges that (i) this letter agreement shall be disclosed as an exhibit to the amendment to the Schedule 13D that will be filed by you as\npromptly as practicable following execution of this letter agreement and (ii) such amendment to the Schedule 13D shall disclose that Evaluation\nMaterial will be made available to you and that you will be evaluating a potential acquisition of the Company. Without limiting the generality of the\nforegoing, you further agree that, without the prior written consent of the Company, you will not, directly or indirectly, enter into any agreement,\narrangement or understanding, or any discussions which might lead to such agreement, arrangement or understanding, with any person regarding a\npossible transaction involving the Company, in each case other than any of your Representatives. The term “person” as used in this letter agreement\nshall be broadly interpreted to include the media and any governmental representative or authority, corporation, company, partnership, joint venture,\ngroup, limited liability company, other entity or individual.\nExcept with respect to the debt financing sources previously identified to and agreed by the Representatives of the Company (each, an\n“Exempt Party™), you agree that neither you nor any of your Representatives will provide the Evaluation Material to, disclose information of the type\ndescribed in the preceding paragraph to, or have any discussions concerning a potential transaction involving the Company with, any potential debt\nor equity financing source without\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 3\nthe written consent of the Company. Whether or not any such consent is granted, you agree that you will not, directly or indirectly, require, instruct\nor encourage any financial institutions or financing sources, including any financial advisor, or any legal or other advisory firms, not to be retained\nby any other person in connection with a potential transaction with the Company and, if requested, you agree to consent to any such retention, and to\nwaive any actual or alleged conflict that may arise from any existing or past relationship with you, in connection with a potential transaction with the\nCompany. With respect to any Exempt Party, or in the event the Company provides such consent with respect to any other potential financing source,\nsuch Exempt Party or other potential financing source shall be considered a Representative for all purposes of this letter agreement. However, if the\nCompany provides such consent with respect to any potential equity financing source, in connection therewith such potential equity financing source\nmay execute and deliver to the Company, prior to the receipt of any Evaluation Material from you, a non-disclosure agreement with the Company in\nform and substance reasonably satisfactory to the Company, in which case you and such potential equity financing source shall each be bound by\nyour respective agreements with the Company and not by the other’s, and neither you nor such potential equity financing source shall be responsible\nor liable for any breach by the other.\nIn the event that you or any of your Representatives are requested or required (by oral questions, interrogatories, requests for information or\ndocuments in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material, you shall\nprovide the Company with prompt written notice (to the extent legally permitted) of any such request or requirement and shall consult and cooperate\nwith the Company to the fullest extent permitted by law so that the Company may seek (at its sole cost and expense) a protective order or other\nappropriate remedy (including taking legally available steps to resist or narrow any such request or requirement) and/or waive compliance with the\nprovisions of this letter agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of\nyour Representatives are nonetheless, in the opinion of your respective outside counsel, legally compelled to disclose Evaluation Material to any\ntribunal or other entity, you or your Representatives may, without liability hereunder, disclose to such tribunal or other entity only that portion of the\nEvaluation Material which such counsel advises you or your Representative is legally required to be disclosed, provided that you and your\nRepresentative each exercise your best efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by cooperating\nwith the Company to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation\nMaterial by such tribunal or other entity.\nIf either party decides that it does not wish to proceed with a transaction with the other party, it will promptly inform the other party of that\ndecision. In that case, or at any time upon the request of the Company for any reason, you will promptly (and in no event later than five business\ndays after such request), at your option, deliver to the Company, or destroy, all Evaluation Material (and all copies thereof, regardless of the form or\nmedia on which it may be stored or embodied ) furnished to you or your Representatives by or on behalf of the Company pursuant hereto and you\nand your Representatives shall not retain any copies, extracts or other reproductions (regardless of the form thereof or media on which they may be\nstored or embodied) in whole or in part of such material; provided that nothing shall require the alteration,\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 4\nmodification, deletion or destruction of latent data (such as deleted files, and other non-logical data types, such as memory dumps, swap files,\ntemporary files, printer spool files, and metadata) that can only be retrieved by computer forensics experts and is generally considered inaccessible\nwithout the use of specialized tools and techniques. In the event of such a decision or request, all Evaluation Material prepared by you or your\nRepresentatives shall be destroyed and no copy thereof may be retained (regardless of the form thereof or media on which it may be stored or\nembodied), except that you and your Representatives may retain data or electronic records containing Evaluation Material prepared by you or your\nRepresentatives for the purposes of backup, recovery, contingency planning or business continuity planning so long as such data or records, to the\nextent not permanently deleted or overwritten in the ordinary course of business, are not accessible in the ordinary course of business and are not\naccessed except as required for backup, recovery, contingency planning or business continuity purposes (and if such data or records are restored or\notherwise become accessible, they must be permanently deleted). In the event of such a decision or request such return and destruction shall, upon\nthe Company’s written request, be certified in writing to the Company by an authorized officer supervising such return and destruction.\nNotwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of\nconfidentiality and other obligations hereunder.\nYou understand and acknowledge that neither the Company nor any of its Representatives, or any of their respective directors, officers,\nstockholders, partners, owners, employees, affiliates or agents make any representation or warranty, express or implied, as to the accuracy or\ncompleteness of the Evaluation Material. You agree that neither the Company nor any of its Representatives, or any of their respective directors,\nofficers, stockholders, partners, owners, employees, affiliates or agents shall have any liability to you or to any of your Representatives or any other\nperson relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or\nwarranties which are made in a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to\nsuch limitations and restrictions as may be specified therein, will have any legal effect.\nIn addition, you hereby acknowledge that you are aware (and that prior to their receipt of any Evaluation Material your Representatives who\nare apprised of a possible transaction have been or will be advised) that the Evaluation Material may contain or may itself be material, non-public\ninformation concerning the Company and that the United States and other applicable securities laws prohibit any person in possession of material,\nnon-public information about a company obtained directly or indirectly from that company from purchasing or selling securities of such company or\nfrom communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell such securities.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of one year from the date hereof, you\nwill not, directly or indirectly, solicit to employ or hire any of the executive officers of the Company, so long as they are employed by the Company\nor any of its subsidiaries and for a period of six months thereafter, without obtaining the prior written consent of the Company. Notwithstanding the\nforegoing, it shall not be a violation of this letter agreement to conduct general solicitations (including through advertisements and/or search firms)\nnot directly targeted to such prohibited individuals.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 5\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of one year from the date hereof (unless\na shorter period is specifically contemplated by the provisions of this paragraph) (such period, the “Standstill Period”), unless you shall have been\nspecifically invited in writing by the Company, neither you nor any of your controlled affiliates will in any manner, directly or indirectly: (a) effect\nor seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way advise, assist or encourage any other\nperson to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial\nownership thereof) or assets of the Company, or any rights to acquire any such securities (including derivative securities representing the right to\nvote or economic benefit of any such securities) or assets; (ii) any tender or exchange offer, merger or other business combination involving the\nCompany; (iii) any recapitalization, restructuring, liquidation, dissolution or other similar extraordinary transaction with respect to the Company; or\n(iv) for a period of nine months from the date hereof, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and\nExchange Commission) or consents to vote any voting securities of the Company; (b) form, join or in any way participate in a “group” (as defined\nunder the 1934 Act) with respect to any securities of the Company, other than in connection with any solicitation of proxies or consents in\naccordance with subsection (a)(iv) above, in which case the Standstill Period shall be for a period of nine months from the date hereof; (c) otherwise\nact, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, other than in\nconnection with any solicitation of proxies or consents in accordance with subsection (a)(iv) above, in which case the Standstill Period shall be for a\nperiod of nine months from the date hereof; (d) negotiate with or provide any information to any person (other than your Representatives in\naccordance with this letter agreement) with respect to, or make any statement or proposal to any person (other than your Representatives in\naccordance with this letter agreement) with respect to, or make any public announcement or proposal or offer whatsoever with respect to, or act as a\nfinancing source for or otherwise invest in any other persons in connection with, or otherwise solicit, seek or offer to effect any transactions or\nactions described, or take any action which might force the Company to make a public announcement regarding any of the types of matters set forth,\nin (a) or (b) above, other than in connection with any solicitation of proxies or consents in accordance with subsection (a)(iv) above, in which case\nthe Standstill Period shall be for a period of nine months from the date hereof and in each case except if you have received advice from outside\ncounsel that disclosure must be made in order to comply with any law or regulation; provided that each party to this letter agreement acknowledges\nthat (i) this letter agreement shall be disclosed as an exhibit to the amendment to the Schedule 13D that will be filed by you as promptly as\npracticable following execution of this letter agreement and (ii) such amendment to the Schedule 13D shall disclose that Evaluation Material will be\nmade available to you and that you will be evaluating a potential acquisition of the Company; or (e) enter into any discussions or arrangements with\nany third party (other than your Representatives in accordance with this letter agreement) with respect to any of the foregoing, other than in\nconnection with any solicitation of proxies or consents in accordance with subsection (a)(iv) above, in which case the Standstill Period shall be for a\nperiod of nine\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 6\nmonths from the date hereof. You also agree during the Standstill Period not to request that the Company (or its directors, officers, employees or\nagents), directly or indirectly, amend or waive any provision of this paragraph (including this sentence). Notwithstanding the foregoing, if at any\ntime during the Standstill Period the Company enters into a definitive agreement with any person relating to a merger, consolidation or other sale of\nall or substantially all of the then outstanding voting securities or assets of the Company, if the Company files for bankruptcy or if any person\ncommences (i) a tender offer or exchange offer with respect to securities representing a majority of the voting power of the Company or (ii) a proxy\nsolicitation after nine months from the date hereof in which the person would acquire the ability to elect a member of the Board of Directors of the\nCompany, in each case the provisions of this paragraph shall automatically terminate and be of no further force and effect. Nothing in this paragraph\nshall prohibit you from (x) acquiring any debt securities issued by the Company, (y) acquiring any securities of the Company through an exchange\noffer or through a plan of reorganization for the Company which, in the case of any transaction described in this clause (y), is confirmed by order of\nthe United States Bankruptcy Court, or (z) participating in or consummating any transactions relating to the Company effected in connection with\nany proposed Company auction sale process under the jurisdiction of a United States Bankruptcy Court. For a period of one year from the date of\nthis letter agreement, the Company will not disclose any material non-public information relating to its business to any person who is known by the\nCompany to be considering making, or has made, an Acquisition Proposal (as hereinafter defined) (such person being a “Third Party”), unless such\nThird Party has executed an agreement (a “Third Party Agreement”) with the Company containing standstill provisions which are no less favorable\nin the aggregate to the Company than the standstill provisions contained in the foregoing provisions of this paragraph (the “Standstill”); provided\nthat the Company may enter into a Third Party Agreement containing standstill provisions that are less favorable to the Company in the aggregate\nthan the Standstill if the Company notifies you of the terms of such standstill provisions as soon as reasonably practicable after the execution of such\nThird Party Agreement, in which case the Standstill as it applies to you pursuant to the terms of this letter agreement shall be automatically amended\nto be substantially similar to the standstill provisions contained in such Third Party Agreement. For purposes of this agreement, “Acquisition\nProposal” means a proposal to acquire more than 50% of the outstanding voting securities of the Company or a substantial portion of the assets of\nthe Company and its subsidiaries. You hereby confirm that, except as set forth in any Schedule 13D filing made by you or your affiliates on or prior\nto the date hereof, as of the date hereof you do not have, directly or indirectly, beneficial ownership of equity securities of the Company, rights or\noptions to own or acquire any such securities (through purchase, exchange, conversion or otherwise), or any derivative securities representing the\nright to (i) vote or economic benefit of any such securities. For the avoidance of doubt, the foregoing provisions of this paragraph shall not in any\nway affect your right to vote, tender or dispose of any equity securities of the Company held by you or any of your affiliates as of the date of this\nletter agreement or (ii) acquire any equity securities of the Company upon exercise, conversion or exchange of any derivative securities held by you\nor any of your affiliates as of the date of this letter agreement, in each such case described in clauses (i) and (ii), as set forth in any Schedule 13D\nfiling made by you or your affiliates on or prior to the date hereof, and any such action taken by you or any of your affiliates shall not in any\ncircumstances be deemed to be a breach of this letter agreement.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 7\nEach party understands and agrees that no contract or agreement providing for any transaction involving the Company shall be deemed to exist\nbetween you and the Company unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and\nuntil a final definitive agreement regarding a transaction between the Company and you has been executed and delivered, neither the Company nor\nyou will be under any legal, fiduciary or other obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement\nor any other written or oral expression with respect to such transaction, except for the matters specifically agreed to herein. Each party further\nacknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made by it or any of its\nRepresentatives with regard to a transaction between the Company and you, and to terminate discussions and negotiations between the parties at any\ntime and for any reason or no reason. You further understand that (i) the Company and its Representatives shall be free to conduct any process for\nany transaction involving the Company, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any\nother interested parties and entering into a preliminary or definitive agreement without prior notice to you or any other person) and (ii) any\nprocedures relating to such process or transaction may be changed at any time without notice to you or any other person. Neither this paragraph nor\nany other provision in this letter agreement can be waived or amended except by written consent of each party, which consent shall specifically refer\nto this paragraph (or such provision) and explicitly make such waiver or amendment. For the purposes of this paragraph, the term “definitive\nagreement” shall not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal\nacceptance of any offer or bid.\nYou agree that all (i) contacts or communications by you or your Representatives with the Company or its employees regarding the Evaluation\nMaterial or a potential transaction, (ii) requests for additional Evaluation Material, (iii) requests for facility tours or management meetings, and\n(iv) discussions or questions regarding procedures shall be made only through representatives of Morgan Stanley & Co. Incorporated or as such\nindividuals may otherwise direct in writing.\nIt is understood and agreed that no failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or\nprivilege hereunder.\nYou recognize and acknowledge the competitive value and confidential nature of the Evaluation Material and that irreparable damage will\nresult to the Company if information contained therein or derived therefrom is disclosed to any third party except as herein provided or is used for\nany purpose other than the evaluation of a possible negotiated transaction with the Company. It is further understood and agreed that money damages\nwould not be a sufficient remedy for any breach of this letter agreement by you or any of your Representatives and that the Company shall be\nentitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be\nthe exclusive remedies for a breach of this letter agreement but shall be in addition to all other remedies available at law or equity.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 8\nThis letter agreement is for the benefit of each party, its Representatives and their respective directors, officers, stockholders, partners, owners,\nemployees, affiliates and agents (provided that, with respect to you, none of your affiliates shall be bound by the terms and conditions of this\nAgreement unless (i) such affiliates are provided Evaluation Material, in which case such affiliates shall be considered a Representative pursuant to\nthis letter agreement, or (ii) such affiliates are expressly contemplated by the provisions hereof to be covered by this letter agreement), and shall be\ngoverned by and construed in accordance with the laws of the State of Delaware, without giving effect to the principles of conflicts of law thereof.\nThe rights of the Company under this letter agreement may be assigned in whole or in part to any purchaser of the Company, which purchaser\nshall be entitled to enforce this letter agreement to the same extent and in the same manner as the Company is entitled to enforce this letter\nagreement. You may not assign your rights or obligations under this letter agreement to any person or entity without the prior written consent of the\nCompany. Subject to the foregoing, this letter agreement shall be binding on the respective successors and assigns of the parties hereto.\nThe letter agreement contains the entire agreement between you and the Company concerning the subject matter hereof and supersedes any\nother agreement concerning the subject matter hereof, including, without limitation, any “clickthrough” agreement relating to the confidentiality of\nthe Evaluation Material agreed to by you in connection with your access to any data site maintained in connection with a Possible Transaction, and\nno modification of this letter agreement or waiver of the terms and conditions hereof will be binding unless approved in writing by each party.\nFor the convenience of the parties, this letter agreement may be executed by facsimile or PDF transmission and in counterparts, each of which\nshall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.\nThis letter agreement also constitutes notice to you that the Company has engaged Wilmer, Cutler, Pickering, Hale and Dorr LLP\n(“WilmerHale”) and a committee of independent directors of the Company has engaged Potter Anderson & Corroon LLP (“Potter Anderson”) as\ntheir respective legal counsel in connection with the potential transaction, and you hereby (i) consent to the continued representation of the Company\nby WilmerHale and the continued representation of the committee of independent directors by Potter Anderson in relation to the potential transaction\nnotwithstanding the fact that WilmerHale or Potter Anderson may have represented, or may currently or in the future represent, you and/or any of\nyour affiliates or Representatives with respect to unrelated matters and (ii) waive any actual or alleged conflict that may arise from their\nrepresentation of the Company in connection with the potential transaction. In addition, you hereby acknowledge that your consent and waiver under\nthis paragraph is voluntary and informed, and that you have obtained independent legal advice with respect to this consent and waiver.\nThe Evaluation Material delivered to you or your Representatives by the Company shall remain the property of the Company. No rights to use,\nlicense or otherwise exploit the Evaluation Material are granted to you or your Representatives, by implication or otherwise. Neither you nor your\nRepresentatives will by virtue of disclosure of the Evaluation Material and/or your or your Representatives’ use of the Evaluation Material acquire\nany rights with respect thereto, all of which rights shall remain exclusively with the Company.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 9\nThis letter agreement will terminate 18 months from the date hereof (except to the extent an earlier date is provided herein as to any specified\nobligations); provided, that no such termination of this letter agreement shall relieve any party from any liability relating to any breach of this letter\nagreement.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 10\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nBJ’s Wholesale, Inc.\nBy: /S/ LON POVICH\nName: Lon Povich\nTitle: Executive Vice President and General Counsel\nAccepted and agreed as of the date first written above:\nLeonard Green & Partners, L.P.\nBy: LGP Management, Inc., its General Partner\nBy: /S/ JONATHAN A. SEIFFER\nName: Jonathan A. Seiffer\nTitle: Senior Vice President	EX-7.1 2 dex71.htm CONFIDENTIALITY AGREEMENT\nExhibit 7.1\nMarch 21, 2011\nLeonard Green & Partners, L.P.\n11111 Santa Monica Boulevard\nSuite 2000\nLos Angeles, CA 90025\nAttention: Jonathan Seiffer\nGentlemen:\nIn connection with your consideration of a possible negotiated transaction with BJ's Wholesale, Inc. (collectively with its subsidiaries,\naffiliates and divisions, the "Company"), you have requested, and the Company is prepared to make available to you, certain information concerning\nits business, operations, assets and liabilities. As a condition to such information being furnished, you agree to treat any information concerning the\nCompany (whether prepared by the Company, its advisors or otherwise) which has been or is furnished to you or your directors, officers, employees,\nagents or advisors (including, without limitation, attorneys, accountants, consultants and financial advisors) (collectively, "Representatives") by\nor\non behalf of the Company in connection with your consideration of a possible negotiated transaction with the Company (herein collectively referred\nto as the "Evaluation Material") in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions\nhereinafter set forth.\nThe term "Evaluation Material" shall be deemed to include all such information furnished to you or any of your Representatives by the\nCompany or any of its Representatives, irrespective of the form of communication (whether provided orally or in writing or provided or stored\non\nelectronic or magnetic media, film or any other form or media), and whether such information is so furnished before, on or after the date hereof, or\ninformation which you or your Representatives otherwise learn or obtain, through observation or through analysis of such information, and all\nanalyses, compilations, data, forecasts, studies, notes, interpretations, memoranda or other documents prepared by you or your Representatives\ncontaining, reflecting or based in whole or in part on any such information. The term "Evaluation Material" does not include information which (i) at\nthe time of disclosure is generally available to the public other than as a result of a disclosure directly or indirectly by you or your Representatives;\n(ii) you can establish was within your or any of your Representatives' possession prior to it being furnished to you or your Representatives by or on\nbehalf of the Company pursuant hereto, provided that such information is not known to you to be subject to another confidentiality agreement with\nor\nother contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information; (iii) becomes\navailable to you on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not\nknown to you to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or\nany other party with respect to such information; or (iv) you can establish is independently developed by you or your Representatives without\nutilizing in any way any Evaluation Material or violating any of your obligations under this letter agreement.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 2\nYou hereby agree that you and your Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible negotiated\ntransaction between the Company and you, that the Evaluation Material will be kept confidential and that you and your Representatives will not\ndisclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) you may make any disclosure of such information to\nwhich the Company gives its prior written consent; and (ii) any of such information may be disclosed to your Representatives who need to know\nsuch information for the sole purpose of evaluating a possible negotiated transaction with the Company, who agree to keep such information\nconfidential and to use such information solely for the limited purpose described in this clause (ii) and who are provided with a copy of this letter\nagreement and who are instructed to comply with the terms thereof. In any event, you shall be responsible for any breach of this letter agreement by\nany of your Representatives, and you agree, at your sole expense, to take all reasonable measures (including, if necessary, court proceedings) to\nrestrain your Representatives from prohibited or unauthorized disclosure or use of the Evaluation Material. It is understood and agreed that the\nCompany may, in its discretion, from time to time determine that disclosure of certain competitively sensitive Evaluation Material to certain of\nyour\nRepresentatives may be inappropriate, in which case at the Company's request you shall refrain from disclosing such Evaluation Material to\nsuch\nRepresentatives.\nIn addition, both parties agree that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any\nother person the fact that the Evaluation Material has been made available to it, that investigations, discussions or negotiations are taking place\nconcerning a possible transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the status\nthereof or the identity of the parties thereto), provided that either party may make such disclosure if such party has received advice from its outside\ncounsel that such disclosure must be made in order to comply with any law or regulation and provided further that each party to this letter agreement\nacknowledges that (i) this letter agreement shall be disclosed as an exhibit to the amendment to the Schedule 13D that will be filed by you as\npromptly as practicable following execution of this letter agreement and (ii) such amendment to the Schedule 13D shall disclose that Evaluation\nMaterial will be made available to you and that you will be evaluating a potential acquisition of the Company. Without limiting the generality of the\nforegoing, you further agree that, without the prior written consent of the Company, you will not, directly or indirectly, enter into any agreement,\narrangement or understanding, or any discussions which might lead to such agreement, arrangement or understanding, with any person regarding\na\npossible transaction involving the Company, in each case other than any of your Representatives. The term "person" as used in this letter agreement\nshall be broadly interpreted to include the media and any governmental representative or authority, corporation, company, partnership, joint venture,\ngroup, limited liability company, other entity or individual.\nExcept with respect to the debt financing sources previously identified to and agreed by the Representatives of the Company (each, an\n"Exempt Party"), you agree that neither you nor any of your Representatives will provide the Evaluation Material to, disclose information of the type\ndescribed in the preceding paragraph to, or have any discussions concerning a potential transaction involving the Company with, any potential debt\nor equity financing source without\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 3\nthe written consent of the Company. Whether or not any such consent is granted, you agree that you will not, directly or indirectly, require, instruct\nor\nencourage any financial institutions or financing sources, including any financial advisor, or any legal or other advisory firms, not to be retained\nby any other person in connection with a potential transaction with the Company and, if requested, you agree to consent to any such retention, and to\nwaive any actual or alleged conflict that may arise from any existing or past relationship with you, in connection with a potential transaction with the\nCompany. With respect to any Exempt Party, or in the event the Company provides such consent with respect to any other potential financing source,\nsuch Exempt Party or other potential financing source shall be considered a Representative for all purposes of this letter agreement. However, if the\nCompany provides such consent with respect to any potential equity financing source, in connection therewith such potential equity financing source\nmay execute and deliver to the Company, prior to the receipt of any Evaluation Material from you, a non-disclosure agreement with the Company in\nform and substance reasonably satisfactory to the Company, in which case you and such potential equity financing source shall each be bound by\nyour respective agreements with the Company and not by the other's, and neither you nor such potential equity financing source shall be responsible\nor liable for any breach by the other.\nIn the event that you or any of your Representatives are requested or required (by oral questions, interrogatories, requests for information or\ndocuments in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material, you shall\nprovide the Company with prompt written notice (to the extent legally permitted) of any such request or requirement and shall consult and cooperate\nwith the Company to the fullest extent permitted by law so that the Company may seek (at its sole cost and expense) a protective order or other\nappropriate remedy (including taking legally available steps to resist or narrow any such request or requirement) and/or waive compliance with the\nprovisions of this letter agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of\nyour Representatives are nonetheless, in the opinion of your respective outside counsel, legally compelled to disclose Evaluation Material to any\ntribunal or other entity, you or your Representatives may, without liability hereunder, disclose to such tribunal or other entity only that portion of\nthe\nEvaluation Material which such counsel advises you or your Representative is legally required to be disclosed, provided that you and your\nRepresentative each exercise your best efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by cooperating\nwith the Company to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation\nMaterial by such tribunal or other entity.\nIf either party decides that it does not wish to proceed with a transaction with the other party, it will promptly inform the other party of that\ndecision. In that case, or at any time upon the request of the Company for any reason, you will promptly (and in no event later than five business\ndays after such request), at your option, deliver to the Company, or destroy, all Evaluation Material (and all copies thereof, regardless of the form\nor\nmedia on which it may be stored or embodied furnished to you or your Representatives by or on behalf of the Company pursuant hereto and\nyou\nand your Representatives shall not retain any copies, extracts or other reproductions (regardless of the form thereof or media on which they may be\nstored or embodied) in whole or in part of such material; provided that nothing shall require the alteration,\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 4\nmodification, deletion or destruction of latent data (such as deleted files, and other non-logical data types, such as memory dumps, swap files,\ntemporary files, printer spool files, and metadata) that can only be retrieved by computer forensics experts and is generally considered inaccessible\nwithout the use of specialized tools and techniques. In the event of such a decision or request, all Evaluation Material prepared by you or your\nRepresentatives shall be destroyed and no copy thereof may be retained (regardless of the form thereof or media on which it may be stored\nor\nembodied), except that you and your Representatives may retain data or electronic records containing Evaluation Material prepared by you or your\nRepresentatives for the purposes of backup, recovery, contingency planning or business continuity planning so long as such data or records, to the\nextent not permanently deleted or overwritten in the ordinary course of business, are not accessible in the ordinary course of business and are not\naccessed except as required for backup, recovery, contingency planning or business continuity purposes (and if such data or records are restored\nor\notherwise become accessible, they must be permanently deleted). In the event of such a decision or request such return and destruction shall, upon\nthe Company's written request, be certified in writing to the Company by an authorized officer supervising such return and destruction.\nNotwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations\nof\nconfidentiality and other obligations hereunder.\nYou understand and acknowledge that neither the Company nor any of its Representatives, or any of their respective directors, officers,\nstockholders, partners, owners, employees, affiliates or agents make any representation or warranty, express or implied, as to the accuracy or\ncompleteness of the Evaluation Material. You agree that neither the Company nor any of its Representatives, or any of their respective directors,\nofficers, stockholders, partners, owners, employees, affiliates or agents shall have any liability to you or to any of your Representatives or any other\nperson relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or\nwarranties which are made in a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to\nsuch limitations and restrictions as may be specified therein, will have any legal effect.\nIn addition, you hereby acknowledge that you are aware (and that prior to their receipt of any Evaluation Material your Representatives who\nare apprised of a possible transaction have been or will be advised) that the Evaluation Material may contain or may itself be material, non-public\ninformation concerning the Company and that the United States and other applicable securities laws prohibit any person in possession of material,\nnon-public information about a company obtained directly or indirectly from that company from purchasing or selling securities of such company\nor\nfrom communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell such securities.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of one year from the date hereof, you\nwill not, directly or indirectly, solicit to employ or hire any of the executive officers of the Company, so long as they are employed by the Company\nor any of its subsidiaries and for a period of six months thereafter, without obtaining the prior written consent of the Company. Notwithstanding\nthe\nforegoing, it shall not be a violation of this letter agreement to conduct general solicitations (including through advertisements and/or search firms)\nnot directly targeted to such prohibited individuals.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 5\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of one year from the date hereof (unless\na shorter period is specifically contemplated by the provisions of this paragraph) (such period, the "Standstill Period"), unless you shall have been\nspecifically invited in writing by the Company, neither you nor any of your controlled affiliates will in any manner, directly or indirectly: (a) effect\nor seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way advise, assist or encourage any other\nperson to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial\nownership thereof) or assets of the Company, or any rights to acquire any such securities (including derivative securities representing the right to\nvote or economic benefit of any such securities) or assets; (ii) any tender or exchange offer, merger or other business combination involving the\nCompany; (iii) any recapitalization, restructuring, liquidation, dissolution or other similar extraordinary transaction with respect to the Company; or\n(iv) for a period of nine months from the date hereof, any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and\nExchange Commission) or consents to vote any voting securities of the Company; (b) form, join or in any way participate in a "group" (as defined\nunder the 1934 Act) with respect to any securities of the Company, other than in connection with any solicitation of proxies or consents in\naccordance with subsection (a)(iv) above, in which case the Standstill Period shall be for a period of nine months from the date hereof; (c) otherwise\nact, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, other than in\nconnection with any solicitation of proxies or consents in accordance with subsection (a)(iv) above, in which case the Standstill Period shall be\nfor\na\nperiod of nine months from the date hereof; (d) negotiate with or provide any information to any person (other than your Representatives in\naccordance with this letter agreement) with respect to, or make any statement or proposal to any person (other than your Representatives in\naccordance with this letter agreement) with respect to, or make any public announcement or proposal or offer whatsoever with respect to, or act\nas\na\nfinancing source for or otherwise invest in any other persons in connection with, or otherwise solicit, seek or offer to effect any transactions or\nactions described, or take any action which might force the Company to make a public announcement regarding any of the types of matters set forth,\nin (a) or (b) above, other than in connection with any solicitation of proxies or consents in accordance with subsection (a)(iv) above, in which case\nthe Standstill Period shall be for a period of nine months from the date hereof and in each case except if you have received advice from outside\ncounsel that disclosure must be made in order to comply with any law or regulation; provided that each party to this letter agreement acknowledges\nthat (i) this letter agreement shall be disclosed as an exhibit to the amendment to the Schedule 13D that will be filed by you as promptly as\npracticable following execution of this letter agreement and (ii) such amendment to the Schedule 13D shall disclose that Evaluation Material will be\nmade available to you and that you will be evaluating a potential acquisition of the Company; or (e) enter into any discussions or arrangements with\nany third party (other than your Representatives in accordance with this letter agreement) with respect to any of the foregoing, other than in\nconnection with any solicitation of proxies or consents in accordance with subsection (a)(iv) above, in which case the Standstill Period shall be for\na\nperiod of nine\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 6\nmonths from the date hereof. You also agree during the Standstill Period not to request that the Company (or its directors, officers, employees or\nagents), directly or indirectly, amend or waive any provision of this paragraph (including this sentence). Notwithstanding the foregoing, if at any\ntime during the Standstill Period the Company enters into a definitive agreement with any person relating to a merger, consolidation or other sale of\nall or substantially all of the then outstanding voting securities or assets of the Company, if the Company files for bankruptcy or if any person\ncommences (i) a tender offer or exchange offer with respect to securities representing a majority of the voting power of the Company or (ii) a proxy\nsolicitation after nine months from the date hereof in which the person would acquire the ability to elect a member of the Board of Directors of the\nCompany, in each case the provisions of this paragraph shall automatically terminate and be of no further force and effect. Nothing in this paragraph\nshall prohibit you from (x) acquiring any debt securities issued by the Company, (y) acquiring any securities of the Company through an exchange\noffer or through a plan of reorganization for the Company which, in the case of any transaction described in this clause (y), is confirmed by order of\nthe United States Bankruptcy Court, or (z) participating in or consummating any transactions relating to the Company effected in connection with\nany proposed Company auction sale process under the jurisdiction of a United States Bankruptcy Court. For a period of one year from the date\nof\nthis letter agreement, the Company will not disclose any material non-public information relating to its business to any person who is known by the\nCompany to be considering making, or has made, an Acquisition Proposal (as hereinafter defined) (such person being a "Third Party"), unless such\nThird Party has executed an agreement (a "Third Party Agreement") with the Company containing standstill provisions which are no less favorable\nin the aggregate to the Company than the standstill provisions contained in the foregoing provisions of this paragraph (the "Standstill"); provided\nthat the Company may enter into a Third Party Agreement containing standstill provisions that are less favorable to the Company in the aggregate\nthan the Standstill if the Company notifies you of the terms of such standstill provisions as soon as reasonably practicable after the execution of such\nThird Party Agreement, in which case the Standstill as it applies to you pursuant to the terms of this letter agreement shall be automatically amended\nto be substantially similar to the standstill provisions contained in such Third Party Agreement. For purposes of this agreement, "Acquisition\nProposal" means a proposal to acquire more than 50% of the outstanding voting securities of the Company or a substantial portion of the assets of\nthe Company and its subsidiaries. You hereby confirm that, except as set forth in any Schedule 13D filing made by you or your affiliates on or prior\nto\nthe\ndate hereof, as of the date hereof you do not have, directly or indirectly, beneficial ownership of equity securities of the Company, rights or\noptions to own or acquire any such securities (through purchase, exchange, conversion or otherwise), or any derivative securities representing the\nright to (i) vote or economic benefit of any such securities. For the avoidance of doubt, the foregoing provisions of this paragraph shall not in any\nway affect your right to vote, tender or dispose of any equity securities of the Company held by you or any of your affiliates as of the date of this\nletter agreement or (ii) acquire any equity securities of the Company upon exercise, conversion or exchange of any derivative securities held by you\nor any of your affiliates as of the date of this letter agreement, in each such case described in clauses (i) and (ii), as set forth in any Schedule\n13D\nfiling made by you or your affiliates on or prior to the date hereof, and any such action taken by you or any of your affiliates shall not in any\ncircumstances be deemed to be a breach of this letter agreement.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 7\nEach party understands and agrees that no contract or agreement providing for any transaction involving the Company shall be deemed to exist\nbetween\nyou and the Company unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and\nyou will be under any legal, fiduciary or other obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement nor\nuntil a final definitive agreement regarding a transaction between the Company and you has been executed and delivered, neither the Company\nor any other written or oral expression with respect to such transaction, except for the matters specifically agreed to herein. Each party further\nacknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made by it or any of its\nRepresentatives with regard to a transaction between the Company and you, and to terminate discussions and negotiations between the parties at any\ntime and for any reason or no reason. You further understand that (i) the Company and its Representatives shall be free to conduct any process for\nany transaction involving the Company, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any\nother interested parties and entering into a preliminary or definitive agreement without prior notice to you or any other person) and (ii) any\nprocedures relating to such process or transaction may be changed at any time without notice to you or any other person. Neither this paragraph nor\nany other provision in this letter agreement can be waived or amended except by written consent of each party, which consent shall specifically refer\nto this paragraph (or such provision) and explicitly make such waiver or amendment. For the purposes of this paragraph, the term "definitive\nagreement" shall not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal\nacceptance of any offer or bid.\nYou agree that all (i) contacts or communications by you or your Representatives with the Company or its employees regarding the Evaluation\nMaterial or a potential transaction, (ii) requests for additional Evaluation Material, (iii) requests for facility tours or management meetings, and\n(iv) discussions or questions regarding procedures shall be made only through representatives of Morgan Stanley & Co. Incorporated or as such\nindividuals may otherwise direct in writing.\nIt is understood and agreed that no failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power\nor\nprivilege hereunder.\nYou\nrecognize and acknowledge the competitive value and confidential nature of the Evaluation Material and that irreparable damage will\nresult to the Company if information contained therein or derived therefrom is disclosed to any third party except as herein provided or is used for\nany purpose other than the evaluation of a possible negotiated transaction with the Company. It is further understood and agreed that money damages\nwould not be a sufficient remedy for any breach of this letter agreement by you or any of your Representatives and that the Company shall be\nentitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be\nthe exclusive remedies for a breach of this letter agreement but shall be in addition to all other remedies available at law or equity.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 8\nThis letter agreement is for the benefit of each party, its Representatives and their respective directors, officers, stockholders, partners, owners,\nemployees, affiliates and agents (provided that, with respect to you, none of your affiliates shall be bound by the terms and conditions of this\nAgreement unless (i) such affiliates are provided Evaluation Material, in which case such affiliates shall be considered a Representative pursuant to\nthis letter agreement, or (ii) such affiliates are expressly contemplated by the provisions hereof to be covered by this letter agreement), and shall be\ngoverned by and construed in accordance with the laws of the State of Delaware, without giving effect to the principles of conflicts of law thereof.\nThe rights of the Company under this letter agreement may be assigned in whole or in part to any purchaser of the Company, which purchaser\nshall be entitled to enforce this letter agreement to the same extent and in the same manner as the Company is entitled to enforce this letter\nagreement. You may not assign your rights or obligations under this letter agreement to any person or entity without the prior written consent of the\nCompany. Subject to the foregoing, this letter agreement shall be binding on the respective successors and assigns of the parties hereto.\nThe letter agreement contains the entire agreement between you and the Company concerning the subject matter hereof and supersedes any\nother agreement concerning the subject matter hereof, including, without limitation, any "clickthrough" agreement relating to the confidentiality of\nthe Evaluation Material agreed to by you in connection with your access to any data site maintained in connection with a Possible Transaction, and\nno modification of this letter agreement or waiver of the terms and conditions hereof will be binding unless approved in writing by each party.\nFor the convenience of the parties, this letter agreement may be executed by facsimile or PDF transmission and in counterparts, each of which\nshall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.\nThis letter agreement also constitutes notice to you that the Company has engaged Wilmer, Cutler, Pickering, Hale and Dorr LLP\n("WilmerHale") and a committee of independent directors of the Company has engaged Potter Anderson & Corroon LLP ("Potter Anderson")\nas\ntheir respective legal counsel in connection with the potential transaction, and you hereby (i) consent to the continued representation of the Company\nby WilmerHale and the continued representation of the committee of independent directors by Potter Anderson in relation to the potential transaction\nnotwithstanding the fact that WilmerHale or Potter Anderson may have represented, or may currently or in the future represent, you and/or any of\nyour affiliates or Representatives with respect to unrelated matters and (ii) waive any actual or alleged conflict that may arise from their\nrepresentation of the Company in connection with the potential transaction. In addition, you hereby acknowledge that your consent and waiver under\nthis paragraph is voluntary and informed, and that you have obtained independent legal advice with respect to this consent and waiver.\nThe Evaluation Material delivered to you or your Representatives by the Company shall remain the property of the Company. No rights to use,\nlicense or otherwise exploit the Evaluation Material are granted to you or your Representatives, by implication or otherwise. Neither you nor your\nRepresentatives will by virtue of disclosure of the Evaluation Material and/or your or your Representatives' use of the Evaluation Material acquire\nany rights with respect thereto, all of which rights shall remain exclusively with the Company.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 9\nThis letter agreement will terminate 18 months from the date hereof (except to the extent an earlier date is provided herein as to any specified\nobligations); provided, that no such termination of this letter agreement shall relieve any party from any liability relating to any breach of this letter\nagreement.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 10\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned,\nwhereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nBJ's Wholesale, Inc.\nBy: /S/ LON POVICH\nName: Lon Povich\nTitle: Executive Vice President and General Counsel\nAccepted and agreed as of the date first written above:\nLeonard Green & Partners, L.P.\nBy: LGP Management, Inc., its General Partner\nBy: /S/ JONATHAN A. SEIFFER\nName: Jonathan A. Seiffer\nTitle: Senior Vice President	EX-7.1 2 dex71.htm CONFIDENTIALITY AGREEMENT\nExhibit 7.1\nMarch 21, 2011\nLeonard Green & Partners, L.P.\n11111 Santa Monica Boulevard\nSuite 2000\nLos Angeles, CA 90025\nAttention: Jonathan Seiffer\nGentlemen:\nIn connection with your consideration of a possible negotiated transaction with BJ’s Wholesale, Inc. (collectively with its subsidiaries,\naffiliates and divisions, the “Company”), you have requested, and the Company is prepared to make available to you, certain information concerning\nits business, operations, assets and liabilities. As a condition to such information being furnished, you agree to treat any information concerning the\nCompany (whether prepared by the Company, its advisors or otherwise) which has been or is furnished to you or your directors, officers, employees,\nagents or advisors (including, without limitation, attorneys, accountants, consultants and financial advisors) (collectively, “Representatives”) by or\non behalf of the Company in connection with your consideration of a possible negotiated transaction with the Company (herein collectively referred\nto as the “Evaluation Material”) in accordance with the provisions of this letter agreement, and to take or abstain from taking certain other actions\nhereinafter set forth.\nThe term “Evaluation Material” shall be deemed to include all such information furnished to you or any of your Representatives by the\nCompany or any of its Representatives, irrespective of the form of communication (whether provided orally or in writing or provided or stored on\nelectronic or magnetic media, film or any other form or media), and whether such information is so furnished before, on or after the date hereof, or\ninformation which you or your Representatives otherwise learn or obtain, through observation or through analysis of such information, and all\nanalyses, compilations, data, forecasts, studies, notes, interpretations, memoranda or other documents prepared by you or your Representatives\ncontaining, reflecting or based in whole or in part on any such information. The term “Evaluation Material” does not include information which (i) at\nthe time of disclosure is generally available to the public other than as a result of a disclosure directly or indirectly by you or your Representatives;\n(ii) you can establish was within your or any of your Representatives’ possession prior to it being furnished to you or your Representatives by or on\nbehalf of the Company pursuant hereto, provided that such information is not known to you to be subject to another confidentiality agreement with\nor other contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information; (iii) becomes\navailable to you on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not\nknown to you to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or\nany other party with respect to such information; or (iv) you can establish is independently developed by you or your Representatives without\nutilizing in any way any Evaluation Material or violating any of your obligations under this letter agreement.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 2\nYou hereby agree that you and your Representatives shall use the Evaluation Material solely for the purpose of evaluating a possible negotiated\ntransaction between the Company and you, that the Evaluation Material will be kept confidential and that you and your Representatives will not\ndisclose any of the Evaluation Material in any manner whatsoever; provided, however, that (i) you may make any disclosure of such information to\nwhich the Company gives its prior written consent; and (ii) any of such information may be disclosed to your Representatives who need to know\nsuch information for the sole purpose of evaluating a possible negotiated transaction with the Company, who agree to keep such information\nconfidential and to use such information solely for the limited purpose described in this clause (ii) and who are provided with a copy of this letter\nagreement and who are instructed to comply with the terms thereof. In any event, you shall be responsible for any breach of this letter agreement by\nany of your Representatives, and you agree, at your sole expense, to take all reasonable measures (including, if necessary, court proceedings) to\nrestrain your Representatives from prohibited or unauthorized disclosure or use of the Evaluation Material. It is understood and agreed that the\nCompany may, in its discretion, from time to time determine that disclosure of certain competitively sensitive Evaluation Material to certain of your\nRepresentatives may be inappropriate, in which case at the Company’s request you shall refrain from disclosing such Evaluation Material to such\nRepresentatives.\nIn addition, both parties agree that, without the prior written consent of the other party, neither it nor its Representatives will disclose to any\nother person the fact that the Evaluation Material has been made available to it, that investigations, discussions or negotiations are taking place\nconcerning a possible transaction involving the Company or any of the terms, conditions or other facts with respect thereto (including the status\nthereof or the identity of the parties thereto), provided that either party may make such disclosure if such party has received advice from its outside\ncounsel that such disclosure must be made in order to comply with any law or regulation and provided further that each party to this letter agreement\nacknowledges that (i) this letter agreement shall be disclosed as an exhibit to the amendment to the Schedule 13D that will be filed by you as\npromptly as practicable following execution of this letter agreement and (ii) such amendment to the Schedule 13D shall disclose that Evaluation\nMaterial will be made available to you and that you will be evaluating a potential acquisition of the Company. Without limiting the generality of the\nforegoing, you further agree that, without the prior written consent of the Company, you will not, directly or indirectly, enter into any agreement,\narrangement or understanding, or any discussions which might lead to such agreement, arrangement or understanding, with any person regarding a\npossible transaction involving the Company, in each case other than any of your Representatives. The term “person” as used in this letter agreement\nshall be broadly interpreted to include the media and any governmental representative or authority, corporation, company, partnership, joint venture,\ngroup, limited liability company, other entity or individual.\nExcept with respect to the debt financing sources previously identified to and agreed by the Representatives of the Company (each, an\n“Exempt Party”), you agree that neither you nor any of your Representatives will provide the Evaluation Material to, disclose information of the type\ndescribed in the preceding paragraph to, or have any discussions concerning a potential transaction involving the Company with, any potential debt\nor equity financing source without\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 3\nthe written consent of the Company. Whether or not any such consent is granted, you agree that you will not, directly or indirectly, require, instruct\nor encourage any financial institutions or financing sources, including any financial advisor, or any legal or other advisory firms, not to be retained\nby any other person in connection with a potential transaction with the Company and, if requested, you agree to consent to any such retention, and to\nwaive any actual or alleged conflict that may arise from any existing or past relationship with you, in connection with a potential transaction with the\nCompany. With respect to any Exempt Party, or in the event the Company provides such consent with respect to any other potential financing source,\nsuch Exempt Party or other potential financing source shall be considered a Representative for all purposes of this letter agreement. However, if the\nCompany provides such consent with respect to any potential equity financing source, in connection therewith such potential equity financing source\nmay execute and deliver to the Company, prior to the receipt of any Evaluation Material from you, a non-disclosure agreement with the Company in\nform and substance reasonably satisfactory to the Company, in which case you and such potential equity financing source shall each be bound by\nyour respective agreements with the Company and not by the other’s, and neither you nor such potential equity financing source shall be responsible\nor liable for any breach by the other.\nIn the event that you or any of your Representatives are requested or required (by oral questions, interrogatories, requests for information or\ndocuments in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Evaluation Material, you shall\nprovide the Company with prompt written notice (to the extent legally permitted) of any such request or requirement and shall consult and cooperate\nwith the Company to the fullest extent permitted by law so that the Company may seek (at its sole cost and expense) a protective order or other\nappropriate remedy (including taking legally available steps to resist or narrow any such request or requirement) and/or waive compliance with the\nprovisions of this letter agreement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Company, you or any of\nyour Representatives are nonetheless, in the opinion of your respective outside counsel, legally compelled to disclose Evaluation Material to any\ntribunal or other entity, you or your Representatives may, without liability hereunder, disclose to such tribunal or other entity only that portion of the\nEvaluation Material which such counsel advises you or your Representative is legally required to be disclosed, provided that you and your\nRepresentative each exercise your best efforts to preserve the confidentiality of the Evaluation Material, including, without limitation, by cooperating\nwith the Company to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Evaluation\nMaterial by such tribunal or other entity.\nIf either party decides that it does not wish to proceed with a transaction with the other party, it will promptly inform the other party of that\ndecision. In that case, or at any time upon the request of the Company for any reason, you will promptly (and in no event later than five business\ndays after such request), at your option, deliver to the Company, or destroy, all Evaluation Material (and all copies thereof, regardless of the form or\nmedia on which it may be stored or embodied ) furnished to you or your Representatives by or on behalf of the Company pursuant hereto and you\nand your Representatives shall not retain any copies, extracts or other reproductions (regardless of the form thereof or media on which they may be\nstored or embodied) in whole or in part of such material; provided that nothing shall require the alteration,\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 4\nmodification, deletion or destruction of latent data (such as deleted files, and other non-logical data types, such as memory dumps, swap files,\ntemporary files, printer spool files, and metadata) that can only be retrieved by computer forensics experts and is generally considered inaccessible\nwithout the use of specialized tools and techniques. In the event of such a decision or request, all Evaluation Material prepared by you or your\nRepresentatives shall be destroyed and no copy thereof may be retained (regardless of the form thereof or media on which it may be stored or\nembodied), except that you and your Representatives may retain data or electronic records containing Evaluation Material prepared by you or your\nRepresentatives for the purposes of backup, recovery, contingency planning or business continuity planning so long as such data or records, to the\nextent not permanently deleted or overwritten in the ordinary course of business, are not accessible in the ordinary course of business and are not\naccessed except as required for backup, recovery, contingency planning or business continuity purposes (and if such data or records are restored or\notherwise become accessible, they must be permanently deleted). In the event of such a decision or request such return and destruction shall, upon\nthe Company’s written request, be certified in writing to the Company by an authorized officer supervising such return and destruction.\nNotwithstanding the return or destruction of the Evaluation Material, you and your Representatives will continue to be bound by your obligations of\nconfidentiality and other obligations hereunder.\nYou understand and acknowledge that neither the Company nor any of its Representatives, or any of their respective directors, officers,\nstockholders, partners, owners, employees, affiliates or agents make any representation or warranty, express or implied, as to the accuracy or\ncompleteness of the Evaluation Material. You agree that neither the Company nor any of its Representatives, or any of their respective directors,\nofficers, stockholders, partners, owners, employees, affiliates or agents shall have any liability to you or to any of your Representatives or any other\nperson relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. Only those representations or\nwarranties which are made in a final definitive agreement regarding any transactions contemplated hereby, when, as and if executed, and subject to\nsuch limitations and restrictions as may be specified therein, will have any legal effect.\nIn addition, you hereby acknowledge that you are aware (and that prior to their receipt of any Evaluation Material your Representatives who\nare apprised of a possible transaction have been or will be advised) that the Evaluation Material may contain or may itself be material, non-public\ninformation concerning the Company and that the United States and other applicable securities laws prohibit any person in possession of material,\nnon-public information about a company obtained directly or indirectly from that company from purchasing or selling securities of such company or\nfrom communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to\npurchase or sell such securities.\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of one year from the date hereof, you\nwill not, directly or indirectly, solicit to employ or hire any of the executive officers of the Company, so long as they are employed by the Company\nor any of its subsidiaries and for a period of six months thereafter, without obtaining the prior written consent of the Company. Notwithstanding the\nforegoing, it shall not be a violation of this letter agreement to conduct general solicitations (including through advertisements and/or search firms)\nnot directly targeted to such prohibited individuals.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 5\nIn consideration of the Evaluation Material being furnished to you, you hereby agree that, for a period of one year from the date hereof (unless\na shorter period is specifically contemplated by the provisions of this paragraph) (such period, the “Standstill Period”), unless you shall have been\nspecifically invited in writing by the Company, neither you nor any of your controlled affiliates will in any manner, directly or indirectly: (a) effect\nor seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way advise, assist or encourage any other\nperson to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of any securities (or beneficial\nownership thereof) or assets of the Company, or any rights to acquire any such securities (including derivative securities representing the right to\nvote or economic benefit of any such securities) or assets; (ii) any tender or exchange offer, merger or other business combination involving the\nCompany; (iii) any recapitalization, restructuring, liquidation, dissolution or other similar extraordinary transaction with respect to the Company; or\n(iv) for a period of nine months from the date hereof, any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and\nExchange Commission) or consents to vote any voting securities of the Company; (b) form, join or in any way participate in a “group” (as defined\nunder the 1934 Act) with respect to any securities of the Company, other than in connection with any solicitation of proxies or consents in\naccordance with subsection (a)(iv) above, in which case the Standstill Period shall be for a period of nine months from the date hereof; (c) otherwise\nact, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company, other than in\nconnection with any solicitation of proxies or consents in accordance with subsection (a)(iv) above, in which case the Standstill Period shall be for a\nperiod of nine months from the date hereof; (d) negotiate with or provide any information to any person (other than your Representatives in\naccordance with this letter agreement) with respect to, or make any statement or proposal to any person (other than your Representatives in\naccordance with this letter agreement) with respect to, or make any public announcement or proposal or offer whatsoever with respect to, or act as a\nfinancing source for or otherwise invest in any other persons in connection with, or otherwise solicit, seek or offer to effect any transactions or\nactions described, or take any action which might force the Company to make a public announcement regarding any of the types of matters set forth,\nin (a) or (b) above, other than in connection with any solicitation of proxies or consents in accordance with subsection (a)(iv) above, in which case\nthe Standstill Period shall be for a period of nine months from the date hereof and in each case except if you have received advice from outside\ncounsel that disclosure must be made in order to comply with any law or regulation; provided that each party to this letter agreement acknowledges\nthat (i) this letter agreement shall be disclosed as an exhibit to the amendment to the Schedule 13D that will be filed by you as promptly as\npracticable following execution of this letter agreement and (ii) such amendment to the Schedule 13D shall disclose that Evaluation Material will be\nmade available to you and that you will be evaluating a potential acquisition of the Company; or (e) enter into any discussions or arrangements with\nany third party (other than your Representatives in accordance with this letter agreement) with respect to any of the foregoing, other than in\nconnection with any solicitation of proxies or consents in accordance with subsection (a)(iv) above, in which case the Standstill Period shall be for a\nperiod of nine\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 6\nmonths from the date hereof. You also agree during the Standstill Period not to request that the Company (or its directors, officers, employees or\nagents), directly or indirectly, amend or waive any provision of this paragraph (including this sentence). Notwithstanding the foregoing, if at any\ntime during the Standstill Period the Company enters into a definitive agreement with any person relating to a merger, consolidation or other sale of\nall or substantially all of the then outstanding voting securities or assets of the Company, if the Company files for bankruptcy or if any person\ncommences (i) a tender offer or exchange offer with respect to securities representing a majority of the voting power of the Company or (ii) a proxy\nsolicitation after nine months from the date hereof in which the person would acquire the ability to elect a member of the Board of Directors of the\nCompany, in each case the provisions of this paragraph shall automatically terminate and be of no further force and effect. Nothing in this paragraph\nshall prohibit you from (x) acquiring any debt securities issued by the Company, (y) acquiring any securities of the Company through an exchange\noffer or through a plan of reorganization for the Company which, in the case of any transaction described in this clause (y), is confirmed by order of\nthe United States Bankruptcy Court, or (z) participating in or consummating any transactions relating to the Company effected in connection with\nany proposed Company auction sale process under the jurisdiction of a United States Bankruptcy Court. For a period of one year from the date of\nthis letter agreement, the Company will not disclose any material non-public information relating to its business to any person who is known by the\nCompany to be considering making, or has made, an Acquisition Proposal (as hereinafter defined) (such person being a “Third Party”), unless such\nThird Party has executed an agreement (a “Third Party Agreement”) with the Company containing standstill provisions which are no less favorable\nin the aggregate to the Company than the standstill provisions contained in the foregoing provisions of this paragraph (the “Standstill”); provided\nthat the Company may enter into a Third Party Agreement containing standstill provisions that are less favorable to the Company in the aggregate\nthan the Standstill if the Company notifies you of the terms of such standstill provisions as soon as reasonably practicable after the execution of such\nThird Party Agreement, in which case the Standstill as it applies to you pursuant to the terms of this letter agreement shall be automatically amended\nto be substantially similar to the standstill provisions contained in such Third Party Agreement. For purposes of this agreement, “Acquisition\nProposal” means a proposal to acquire more than 50% of the outstanding voting securities of the Company or a substantial portion of the assets of\nthe Company and its subsidiaries. You hereby confirm that, except as set forth in any Schedule 13D filing made by you or your affiliates on or prior\nto the date hereof, as of the date hereof you do not have, directly or indirectly, beneficial ownership of equity securities of the Company, rights or\noptions to own or acquire any such securities (through purchase, exchange, conversion or otherwise), or any derivative securities representing the\nright to (i) vote or economic benefit of any such securities. For the avoidance of doubt, the foregoing provisions of this paragraph shall not in any\nway affect your right to vote, tender or dispose of any equity securities of the Company held by you or any of your affiliates as of the date of this\nletter agreement or (ii) acquire any equity securities of the Company upon exercise, conversion or exchange of any derivative securities held by you\nor any of your affiliates as of the date of this letter agreement, in each such case described in clauses (i) and (ii), as set forth in any Schedule 13D\nfiling made by you or your affiliates on or prior to the date hereof, and any such action taken by you or any of your affiliates shall not in any\ncircumstances be deemed to be a breach of this letter agreement.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 7\nEach party understands and agrees that no contract or agreement providing for any transaction involving the Company shall be deemed to exist\nbetween you and the Company unless and until a final definitive agreement has been executed and delivered. Each party also agrees that unless and\nuntil a final definitive agreement regarding a transaction between the Company and you has been executed and delivered, neither the Company nor\nyou will be under any legal, fiduciary or other obligation of any kind whatsoever with respect to such a transaction by virtue of this letter agreement\nor any other written or oral expression with respect to such transaction, except for the matters specifically agreed to herein. Each party further\nacknowledges and agrees that the other party reserves the right, in its sole discretion, to reject any and all proposals made by it or any of its\nRepresentatives with regard to a transaction between the Company and you, and to terminate discussions and negotiations between the parties at any\ntime and for any reason or no reason. You further understand that (i) the Company and its Representatives shall be free to conduct any process for\nany transaction involving the Company, if and as they in their sole discretion shall determine (including, without limitation, negotiating with any\nother interested parties and entering into a preliminary or definitive agreement without prior notice to you or any other person) and (ii) any\nprocedures relating to such process or transaction may be changed at any time without notice to you or any other person. Neither this paragraph nor\nany other provision in this letter agreement can be waived or amended except by written consent of each party, which consent shall specifically refer\nto this paragraph (or such provision) and explicitly make such waiver or amendment. For the purposes of this paragraph, the term “definitive\nagreement” shall not include an executed letter of intent or any other preliminary written agreement, nor does it include any written or verbal\nacceptance of any offer or bid.\nYou agree that all (i) contacts or communications by you or your Representatives with the Company or its employees regarding the Evaluation\nMaterial or a potential transaction, (ii) requests for additional Evaluation Material, (iii) requests for facility tours or management meetings, and\n(iv) discussions or questions regarding procedures shall be made only through representatives of Morgan Stanley & Co. Incorporated or as such\nindividuals may otherwise direct in writing.\nIt is understood and agreed that no failure or delay by a party in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right, power or\nprivilege hereunder.\nYou recognize and acknowledge the competitive value and confidential nature of the Evaluation Material and that irreparable damage will\nresult to the Company if information contained therein or derived therefrom is disclosed to any third party except as herein provided or is used for\nany purpose other than the evaluation of a possible negotiated transaction with the Company. It is further understood and agreed that money damages\nwould not be a sufficient remedy for any breach of this letter agreement by you or any of your Representatives and that the Company shall be\nentitled to equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be\nthe exclusive remedies for a breach of this letter agreement but shall be in addition to all other remedies available at law or equity.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 8\nThis letter agreement is for the benefit of each party, its Representatives and their respective directors, officers, stockholders, partners, owners,\nemployees, affiliates and agents (provided that, with respect to you, none of your affiliates shall be bound by the terms and conditions of this\nAgreement unless (i) such affiliates are provided Evaluation Material, in which case such affiliates shall be considered a Representative pursuant to\nthis letter agreement, or (ii) such affiliates are expressly contemplated by the provisions hereof to be covered by this letter agreement), and shall be\ngoverned by and construed in accordance with the laws of the State of Delaware, without giving effect to the principles of conflicts of law thereof.\nThe rights of the Company under this letter agreement may be assigned in whole or in part to any purchaser of the Company, which purchaser\nshall be entitled to enforce this letter agreement to the same extent and in the same manner as the Company is entitled to enforce this letter\nagreement. You may not assign your rights or obligations under this letter agreement to any person or entity without the prior written consent of the\nCompany. Subject to the foregoing, this letter agreement shall be binding on the respective successors and assigns of the parties hereto.\nThe letter agreement contains the entire agreement between you and the Company concerning the subject matter hereof and supersedes any\nother agreement concerning the subject matter hereof, including, without limitation, any “clickthrough” agreement relating to the confidentiality of\nthe Evaluation Material agreed to by you in connection with your access to any data site maintained in connection with a Possible Transaction, and\nno modification of this letter agreement or waiver of the terms and conditions hereof will be binding unless approved in writing by each party.\nFor the convenience of the parties, this letter agreement may be executed by facsimile or PDF transmission and in counterparts, each of which\nshall be deemed to be an original, and both of which taken together, shall constitute one agreement binding on both parties.\nThis letter agreement also constitutes notice to you that the Company has engaged Wilmer, Cutler, Pickering, Hale and Dorr LLP\n(“WilmerHale”) and a committee of independent directors of the Company has engaged Potter Anderson & Corroon LLP (“Potter Anderson”) as\ntheir respective legal counsel in connection with the potential transaction, and you hereby (i) consent to the continued representation of the Company\nby WilmerHale and the continued representation of the committee of independent directors by Potter Anderson in relation to the potential transaction\nnotwithstanding the fact that WilmerHale or Potter Anderson may have represented, or may currently or in the future represent, you and/or any of\nyour affiliates or Representatives with respect to unrelated matters and (ii) waive any actual or alleged conflict that may arise from their\nrepresentation of the Company in connection with the potential transaction. In addition, you hereby acknowledge that your consent and waiver under\nthis paragraph is voluntary and informed, and that you have obtained independent legal advice with respect to this consent and waiver.\nThe Evaluation Material delivered to you or your Representatives by the Company shall remain the property of the Company. No rights to use,\nlicense or otherwise exploit the Evaluation Material are granted to you or your Representatives, by implication or otherwise. Neither you nor your\nRepresentatives will by virtue of disclosure of the Evaluation Material and/or your or your Representatives’ use of the Evaluation Material acquire\nany rights with respect thereto, all of which rights shall remain exclusively with the Company.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 9\nThis letter agreement will terminate 18 months from the date hereof (except to the extent an earlier date is provided herein as to any specified\nobligations); provided, that no such termination of this letter agreement shall relieve any party from any liability relating to any breach of this letter\nagreement.\nLeonard Green & Partners, L.P.\nMarch 21, 2011\nPage 10\nPlease confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to the undersigned, whereupon\nthis letter agreement shall become a binding agreement between you and the Company.\nVery truly yours,\nBJ’s Wholesale, Inc.\nBy: /S/ LON POVICH\nName: Lon Povich\nTitle: Executive Vice President and General Counsel\nAccepted and agreed as of the date first written above:\nLeonard Green & Partners, L.P.\nBy: LGP Management, Inc., its General Partner\nBy: /S/ JONATHAN A. SEIFFER\nName: Jonathan A. Seiffer\nTitle: Senior Vice President
+f4d4ef76c5ce9b0d5bca8c55369b753c.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 9 d352811dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nCONFIDENTIAL\nFebruary 1, 2017\nMobileye N.V.\nHar Hotzvim, 13 Hartom Street\nP.O . Box 45157\nJerusalem 9777513, Israel\nAttn: Professor Amnon Shashua, Chairman and Chief Technology Officer\nDear Amnon:\nIn connection with the consideration by Intel Corporation (“Intel”) of a possible transaction involving Intel and Mobileye N.V. (the\n“Company”) or one or more shareholders of the Company (the “Transaction”), each of us may receive certain information relating to the other\nparty and its subsidiaries. The party receiving this information from the other party (the “Receiving Party”) acknowledges that this information\nis proprietary to the party disclosing such information (the “Disclosing Party”) and may include confidential information the disclosure of which\ncould harm the disclosing party and its subsidiaries.\nIn consideration for, and as a condition of, such information being made available to the Receiving Party and its Representatives (as\ndefined below), the Receiving Party agrees to treat, or cause to be treated, any and all information disclosed by the Disclosing Party or any of its\nsubsidiaries to the Receiving Party or its Representatives in connection with the proposed Transaction on or after the date of this letter agreement\n(this “Agreement”) (and regardless of the manner or form in which it is disclosed, including, without limitation, all written, oral and electronic\ncommunications and all information posted in any electronic dataroom), together with any notes, analyses, reports, models, compilations, studies,\ninterpretations, documents or records to the extent such documents contain or are derived from such information, in whole or in part\n(collectively, the “Evaluation Material”), in accordance with the provisions of this Agreement, and to take or abstain from taking the other\nactions hereinafter set forth. For purposes of this Agreement, the term “Evaluation Material” does not include information that (i) becomes\ngenerally available to the public other than as a result of a disclosure by the Receiving Party or its Representatives in breach of the terms of this\nAgreement, (ii) is independently developed by the Receiving Party or its Representatives without reference to or use of the Disclosing Party’s\nconfidential information, (iii) was within the Receiving Party’s possession prior to the date of this Agreement or (iv) is received by the Receiving\nParty from a source other than the Disclosing Party or any of its Representatives; provided that, in the case of clause (iii) above, to the extent\nsuch information was provided to the Receiving Party by the Disclosing Party, then the Receiving Party shall be permitted to use such\ninformation in connection with a potential\nTransaction and such information will continue to be subject to any other non-disclosure or confidentiality agreement entered into between the\nparties prior to the date hereof and not in connection with a potential Transaction; provided further that, in the case of clause (iv) above, to the\nknowledge of the Receiving Party, the source of such information was not bound by a confidentiality agreement with or other contractual, legal\nor fiduciary obligation of confidentiality to the Disclosing Party or any of its subsidiaries with respect to such information. Notwithstanding\nanything to the contrary herein, each party and its Representatives shall be free to use and employ, in any manner and for any purpose, any\nResiduals resulting from their access to or work with Evaluation Material, including, without limitation, in the development, manufacture, sales,\npromotion and maintenance of the products or services of the Receiving Party. “Residuals” means information retained in the unaided memories\nof Representatives of the Receiving Party who have access to the Evaluation Material. The memory of a Representative is considered unaided if\nhe or she did not intentionally memorize the information for the purpose of retaining it and later using it or disclosing it to a third party. Each\nparty reserves all rights, subject to the terms and conditions of this Agreement, (a) to design, develop, manufacture, market, and distribute\nproducts and services that contain similar features or functionality to, or that compete with, products or services of the other party or its\nsubsidiaries; and (b) to enter into agreements with third parties who design, develop, manufacture, market, or distribute products or services that\ncontain similar features or functionality to, or that compete with, products or services of the other party and its subsidiaries. The provisions of\nthis Agreement will not restrict the free movement, or assignment to different tasks and activities, of Representatives of the receiving party\nthroughout his or her organization.\nFor purposes of this Agreement, the term “Representative” with respect to Intel shall mean Intel and its subsidiaries’ (i) directors, officers\nand employees and (ii) agents, representatives and advisors, which may include attorneys, accountants, consultants, potential financing sources\nand representatives of such advisors. For purposes of this Agreement, the term “Representative” with respect to the Company shall mean the\nCompany and its subsidiaries’ (i) directors, officers and employees and (ii) agents, representatives and advisors, which may include attorneys,\naccountants, consultants and representatives of such advisors. For purposes of this Agreement, the term “person” shall be broadly interpreted to\ninclude the media and any corporation, partnership, company, limited liability company, trust, association, joint venture, government or self-\nregulatory agency or body, group (as such term is used in Rule 13d-5(b)(1) of the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”)), individual or other entity. For purposes of this Agreement, the term “affiliate” shall have the meaning ascribed to such term in Rule 12b-2\nunder the Exchange Act.\n1. The Receiving Party hereby agrees that the Receiving Party and its Representatives will (i) keep the Evaluation Material\nconfidential and (ii) not disclose any of the Evaluation Material without the prior written consent of the Disclosing Party; provided, however, that\nthe Receiving Party may disclose Evaluation Material only to its Representatives (a) who have a reasonable need to know particular Evaluation\nMaterial for the purpose of considering, pursuing and/or facilitating a Transaction, (b) who are informed by the Receiving Party in advance of the\nconfidential nature of such information and (c) who agree to act in\naccordance with the terms of this Agreement to the same extent as if they were parties hereto, for the benefit of the Disclosing Party. The\nReceiving Party will be responsible for any breach of this Agreement by any of its Representatives and the Receiving Party agrees to take\ncommercially reasonable measures to restrain its Representatives from disclosure or improper use of the Evaluation Material or from breaching\nany other provision of this Agreement.\n2. Each party agrees, unless otherwise required by law or regulation, without the prior written consent of the other party, not to\ndisclose, directly or indirectly, to any person other than its Representatives that (i) the parties have entered into this Agreement, (ii) the\nEvaluation Material exists or has been made available by the Disclosing Party to the Receiving Party and its Representatives and (iii) discussions\nor negotiations are taking or have taken place concerning the Transaction between Intel and the Company concerning the Transaction or any of\nthe terms, conditions or other facts with respect thereto (including the status thereof).\n3. Each party will submit all: (i) communications regarding a Transaction, (ii) requests for additional information in connection\nwith a Transaction; (iii) requests for facility tours or management meetings in connection with a Transaction; and (iv) questions regarding\nprocedures in connection with a Transaction, only to persons specifically designated by the other party for that purpose.\n4. In the event that the Receiving Party or any of its Representatives is required by applicable law, regulation, stock exchange\nrequirement, subpoena or legal process (including oral questions, civil investigative demand, subpoena, request for information or documents, or\nother similar process or filing with the Securities and Exchange Commission or regulatory body) to disclose any of the Evaluation Material or\ninformation described in paragraph 2 of this Agreement other than as expressly permitted under the terms of this Agreement, the Receiving Party\nwill, to the extent reasonably practicable and as far in advance as is reasonably practicable, promptly notify the Disclosing Party of the\ninformation to be disclosed so that the Disclosing Party may, at its election and expense, seek a protective order or other appropriate remedy. In\nno event shall the Receiving Party, or any of its Representatives, disclose any Evaluation Material other than that portion of the Evaluation\nMaterial that the Receiving Party’s legal counsel advises the Receiving Party is legally required to be disclosed or oppose an action by the\nDisclosing Party to obtain a protective order, motion to quash and/or other relief to prevent the production or disclosure of the Evaluation\nMaterial or to obtain an appropriate protective order or other reliable assurance that confidential treatment will be afforded the information so\ndisclosed.\n5. At any time upon the request of the Disclosing Party for any reason, the Receiving Party will, at the option of the Receiving\nParty, promptly (i) destroy all copies (which shall include to the extent practical erasing or deleting all electronic copies) of the Evaluation\nMaterial in the possession or control of the Receiving Party or its Representatives or (ii) deliver to the Disclosing Party at the expense of the\nReceiving Party all hard copies of the Evaluation Material and, to the extent practical, erase or delete all electronic copies of the Evaluation\nMaterial in the possession or control of the Receiving Party or its Representatives. In addition, if\nrequested in writing by the Disclosing Party, the Receiving Party agrees to have an officer certify in writing to the Disclosing Party that the\nReceiving Party has complied with its obligations under this paragraph. Notwithstanding the return or destruction (as applicable) of the\nEvaluation Material, the Receiving Party and its Representatives will continue to be bound by its confidentiality and non-disclosure obligations\npursuant to the terms of this Agreement. Notwithstanding anything herein, (i) a Receiving Party may retain a copy of the Evaluation Material\ndisclosed to it for legal archival purposes to evidence such party’s compliance with the terms of this Agreement, (ii) any of such Receiving\nParty’s Representatives that are financial institutions may retain for compliance purposes only a copy of the Evaluation Material so required by\napplicable law or other policies of self-regulatory organizations and (iii) such Receiving Party’s counsels may retain a copy of the Evaluation\nMaterial that reflects the advice of counsel or may otherwise contain attorney client privileged materials for legal archival purposes.\n6. The Receiving Party understands and acknowledges that neither the Disclosing Party nor any of its Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy, timeliness or completeness of the Evaluation Material. The Receiving Party\nagrees that neither the Disclosing Party nor any of its Representatives shall have any liability (including, without limitation, in contract, tort,\nunder federal or state securities laws or otherwise) to the Receiving Party or to any of its Representatives relating to or resulting from the use or\nnon-use of the Evaluation Material or any errors therein or omissions therefrom, regardless of any decision made in reliance on the Evaluation\nMaterial, and neither the Receiving Party nor its Representatives will make any claims whatsoever against such persons, with respect to, or\narising out of, the Evaluation Material. Notwithstanding the above, those representations or warranties that are made in a Definitive Agreement\n(as defined below) regarding a negotiated Transaction between the parties, when, as and if executed, and subject to such limitations and\nrestrictions as may be specified therein, will have legal effect. The term “Definitive Agreement” means a written contract executed and\ndelivered by all parties thereto for the Transaction, which contract binds the parties thereto to close such Transaction, subject only to such\nconditions to closing as may be negotiated between the parties thereto, and does not include an executed letter of intent or any other preliminary\nwritten agreement, nor does it include any written or oral acceptance of an offer or bid for the Transaction. Notwithstanding anything to the\ncontrary contained in this Section 6 or elsewhere in this Agreement, nothing in this Agreement will operate to limit any remedy the Receiving\nParty or any of its Representatives may have for fraud committed by the Disclosing Party or any of its Representatives (whether or not such fraud\nrelates to a representation made in a written agreement between the parties).\n7. Each party understands and agrees that no contract or agreement providing for the Transaction shall be deemed to exist between\nthem unless and until a Definitive Agreement has been executed and delivered between them. Each party also agrees that unless and until a\nDefinitive Agreement has been executed and delivered between them, neither party shall be under any legal obligation of any kind whatsoever\nwith respect to the Transaction by virtue of this Agreement, except for the matters specifically agreed to herein and in the related Exclusivity\nAgreement between the parties dated of the date hereof. Each party further\nacknowledges and agrees that the other party may at any time, in its sole discretion, for any reason or no reason, without prior notice to the other\nparty, reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction, terminate discussions and\nnegotiations with the other party and its Representatives or refuse to provide any further access to the Evaluation Materials.\n8. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of\nthe restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material,\nnonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably\nforeseeable that such other person is likely to purchase or sell such securities in reliance upon such information. Each party hereby represents\nthat, as of the date hereof, it and its controlled affiliates do not, directly or indirectly, (i) own of record or beneficially any securities of the other\nparty or (ii) possess or have the right to possess (whether upon the occurrence of an event, lapse of time or otherwise) any economic interest,\nvoting right or other right with respect to any security of the other party or any of its affiliates, including Derivative Securities.\n9. To the extent that any Evaluation Material includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit,\nproceeding, investigation, inquiry, arbitration or dispute, each party acknowledges that the parties have a commonality of interest with respect to\nsuch action, suit, proceeding, investigation, inquiry, arbitration or dispute, and agree that it is the parties’ mutual desire, intention and\nunderstanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such\nmaterials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Evaluation Material that is entitled to protection\nunder the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder\nand shall be entitled to protection under the joint defense doctrine, and each party agrees to take all reasonable measures necessary to preserve, to\nthe fullest extent possible, the applicability of all such privileges and doctrines.\n10. This Agreement contains the entire agreement between Intel and the Company concerning the subject matter of this Agreement,\nand no provision of this Agreement may be waived or amended, except by the written consent of the parties, which consent shall explicitly\nreference such waiver or amendment. Any attempted waiver or amendment in violation of this provision shall be void ab initio. Notwithstanding\nthe foregoing, this Agreement shall not supersede any other non-disclosure agreement or confidentiality agreement entered into between the\nparties prior to the date hereof and not in connection with a potential Transaction.\n11. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any\nother right, power or privilege.\n12. Each party acknowledge that money damages may not be a sufficient remedy for any breach or threatened breach of this\nAgreement by the other party or any of its Representatives and each party shall be entitled to seek injunctive relief without proof of actual\ndamages or posting of a bond as a remedy for any such breach or threatened breach. Such remedies shall not be deemed to be the exclusive\nremedies for a breach or threatened breach by a party or any of its Representatives of this Agreement but may be in addition to all other remedies\navailable at law or equity to the other party. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in\nan order that a party or any of its Representatives has breached or threatened to breach this Agreement, then such party will reimburse the other\nparty for the reasonable legal fees and expenses incurred by the other party in connection with enforcing its rights hereunder, including any\nappeal therefrom.\n13. This Agreement and all disputes or controversies arising out of or relating to this Agreement shall be governed by and construed\nin accordance with the internal laws of the State of New York, without reference to its conflicts of law principles.\n14. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the United States District\nCourt for the Southern District of New York or any New York State court sitting in the Borough of Manhattan, New York City for any actions,\nsuits or proceedings arising out of or relating to this Agreement and agree (i) not to commence any action, suit or proceeding relating thereto\nexcept in such courts, (ii) to waive and not to assert any defenses as to personal jurisdiction of such courts over such party and (iii) that service of\nany process, summons, notice or document by U.S. registered mail to the address set forth above shall be effective service of process for any\naction, suit or proceeding brought against a party in such courts.\n15. The provisions of this Agreement shall be severable in the event that any of the provisions hereof are held by a court of\ncompetent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent\npermitted by law.\n16. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed\noriginal, and all such counterparts shall together constitute one and the same instrument.\n17. This Agreement shall inure solely to the benefit of and be binding upon each of the parties hereto and their respective\nsuccessors and permitted assigns; provided that neither party may assign this Agreement or any of its rights and obligations hereunder without\nthe prior written consent of the other party. Any attempted assignment by a party without the other party’s prior written consent will be of no\nforce and effect.\n18. Except as expressly set forth herein, each of the parties shall be responsible for its own costs and expenses associated with the\nsubject matter of this Agreement, whether or not a Transaction is consummated.\n19. No licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied by this Agreement\nexcept for the right to review the Evaluation Material for purposes of considering, pursuing and/or facilitating a Transaction pursuant to\nparagraph 1 hereof. Neither party is obligated under this Agreement to purchase from or provide to the other party any service or product.\n20. This Agreement and all obligations hereunder shall terminate and cease to be of any further force or effect as of the second\n(2nd) anniversary of the date of this Agreement.\n[Remainder of Page Intentionally Left Blank]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this\nAgreement shall become a binding agreement between Intel and the Company.\nVery truly yours,\nINTEL CORPORATION\nBy: /s/ Wendell M. Brooks\nName: Wendell M. Brooks\nTitle: Senior Vice President and\nPresident Intel Capital\nAccepted: February 1, 2017\nMOBILEYE N.V.\nBy: /s/ Ziv Aviram\nName: Ziv Aviram\nTitle: CEO and President\nBy: /s/ Prof. Amnon Shashva\nName: Prof. Amnon Shashva\nTitle: CTO and Chairman\n[Signature Page to Letter Agreement]	EX-99.(D)(2) 9 d352811dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nCONFIDENTIAL\nFebruary 1, 2017\nMobileye N.V.\nHar Hotzvim, 13 Hartom Street\nP.O. Box 45157\nJerusalem 9777513, Israel\nAttn: Professor Amnon Shashua, Chairman and Chief Technology Officer\nDear Amnon:\nIn connection with the consideration by Intel Corporation (“Intel”) of a possible transaction involving Intel and Mobileye N.V. (the\n“Company”) or one or more shareholders of the Company (the “Transaction”), each of us may receive certain information relating to the other\nparty and its subsidiaries. The party receiving this information from the other party (the “Receiving Party”) acknowledges that this information\nis proprietary to the party disclosing such information (the “Disclosing Party”) and may include confidential information the disclosure of which\ncould harm the disclosing party and its subsidiaries.\nIn consideration for, and as a condition of, such information being made available to the Receiving Party and its Representatives (as\ndefined below), the Receiving Party agrees to treat, or cause to be treated, any and all information disclosed by the Disclosing Party or any of its\nsubsidiaries to the Receiving Party or its Representatives in connection with the proposed Transaction on or after the date of this letter agreement\n(this “Agreement”) (and regardless of the manner or form in which it is disclosed, including, without limitation, all written, oral and electronic\ncommunications and all information posted in any electronic dataroom), together with any notes, analyses, reports, models, compilations, studies,\ninterpretations, documents or records to the extent such documents contain or are derived from such information, in whole or in part\n(collectively, the “Evaluation Material”), in accordance with the provisions of this Agreement, and to take or abstain from taking the other\nactions hereinafter set forth. For purposes of this Agreement, the term “Evaluation Material” does not include information that (i) becomes\ngenerally available to the public other than as a result of a disclosure by the Receiving Party or its Representatives in breach of the terms of this\nAgreement, (ii) is independently developed by the Receiving Party or its Representatives without reference to or use of the Disclosing Party’s\nconfidential information, (iii) was within the Receiving Party’s possession prior to the date of this Agreement or (iv) is received by the Receiving\nParty from a source other than the Disclosing Party or any of its Representatives; provided that, in the case of clause (iii) above, to the extent\nsuch information was provided to the Receiving Party by the Disclosing Party, then the Receiving Party shall be permitted to use such\ninformation in connection with a potential\nTransaction and such information will continue to be subject to any other non-disclosure or confidentiality agreement entered into between the\nparties prior to the date hereof and not in connection with a potential Transaction; provided further that, in the case of clause (iv) above, to the\nknowledge of the Receiving Party, the source of such information was not bound by a confidentiality agreement with or other contractual, legal\nor fiduciary obligation of confidentiality to the Disclosing Party or any of its subsidiaries with respect to such information. Notwithstanding\nanything to the contrary herein, each party and its Representatives shall be free to use and employ, in any manner and for any purpose, any\nResiduals resulting from their access to or work with Evaluation Material, including, without limitation, in the development, manufacture, sales,\npromotion and maintenance of the products or services of the Receiving Party. “Residuals” means information retained in the unaided memories\nof Representatives of the Receiving Party who have access to the Evaluation Material. The memory of a Representative is considered unaided if\nhe or she did not intentionally memorize the information for the purpose of retaining it and later using it or disclosing it to a third party. Each\nparty reserves all rights, subject to the terms and conditions of this Agreement, (a) to design, develop, manufacture, market, and distribute\nproducts and services that contain similar features or functionality to, or that compete with, products or services of the other party or its\nsubsidiaries; and (b) to enter into agreements with third parties who design, develop, manufacture, market, or distribute products or services that\ncontain similar features or functionality to, or that compete with, products or services of the other party and its subsidiaries. The provisions of\nthis Agreement will not restrict the free movement, or assignment to different tasks and activities, of Representatives of the receiving party\nthroughout his or her organization.\nFor purposes of this Agreement, the term “Representative” with respect to Intel shall mean Intel and its subsidiaries’ (i) directors, officers\nand employees and (ii) agents, representatives and advisors, which may include attorneys, accountants, consultants, potential financing sources\nand representatives of such advisors. For purposes of this Agreement, the term “Representative” with respect to the Company shall mean the\nCompany and its subsidiaries’ (i) directors, officers and employees and (ii) agents, representatives and advisors, which may include attorneys,\naccountants, consultants and representatives of such advisors. For purposes of this Agreement, the term “person” shall be broadly interpreted to\ninclude the media and any corporation, partnership, company, limited liability company, trust, association, joint venture, government or self-\nregulatory agency or body, group (as such term is used in Rule 13d-5(b)(1) of the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”)), individual or other entity. For purposes of this Agreement, the term “affiliate” shall have the meaning ascribed to such term in Rule 12b-2\nunder the Exchange Act.\n1. The Receiving Party hereby agrees that the Receiving Party and its Representatives will (i) keep the Evaluation Material\nconfidential and (ii) not disclose any of the Evaluation Material without the prior written consent of the Disclosing Party; provided, however, that\nthe Receiving Party may disclose Evaluation Material only to its Representatives (a) who have a reasonable need to know particular Evaluation\nMaterial for the purpose of considering, pursuing and/or facilitating a Transaction, (b) who are informed by the Receiving Party in advance of the\nconfidential nature of such information and (c) who agree to act in\naccordance with the terms of this Agreement to the same extent as if they were parties hereto, for the benefit of the Disclosing Party. The\nReceiving Party will be responsible for any breach of this Agreement by any of its Representatives and the Receiving Party agrees to take\ncommercially reasonable measures to restrain its Representatives from disclosure or improper use of the Evaluation Material or from breaching\nany other provision of this Agreement.\n2. Each party agrees, unless otherwise required by law or regulation, without the prior written consent of the other party, not to\ndisclose, directly or indirectly, to any person other than its Representatives that (i) the parties have entered into this Agreement, (ii) the\nEvaluation Material exists or has been made available by the Disclosing Party to the Receiving Party and its Representatives and (iii) discussions\nor negotiations are taking or have taken place concerning the Transaction between Intel and the Company concerning the Transaction or any of\nthe terms, conditions or other facts with respect thereto (including the status thereof).\n3. Each party will submit all: (i) communications regarding a Transaction, (ii) requests for additional information in connection\nwith a Transaction; (iii) requests for facility tours or management meetings in connection with a Transaction; and (iv) questions regarding\nprocedures in connection with a Transaction, only to persons specifically designated by the other party for that purpose.\n4. In the event that the Receiving Party or any of its Representatives is required by applicable law, regulation, stock exchange\nrequirement, subpoena or legal process (including oral questions, civil investigative demand, subpoena, request for information or documents, or\nother similar process or filing with the Securities and Exchange Commission or regulatory body) to disclose any of the Evaluation Material or\ninformation described in paragraph 2 of this Agreement other than as expressly permitted under the terms of this Agreement, the Receiving Party\nwill, to the extent reasonably practicable and as far in advance as is reasonably practicable, promptly notify the Disclosing Party of the\ninformation to be disclosed so that the Disclosing Party may, at its election and expense, seek a protective order or other appropriate remedy. In\nno event shall the Receiving Party, or any of its Representatives, disclose any Evaluation Material other than that portion of the Evaluation\nMaterial that the Receiving Party’s legal counsel advises the Receiving Party is legally required to be disclosed or oppose an action by the\nDisclosing Party to obtain a protective order, motion to quash and/or other relief to prevent the production or disclosure of the Evaluation\nMaterial or to obtain an appropriate protective order or other reliable assurance that confidential treatment will be afforded the information so\ndisclosed.\n5. At any time upon the request of the Disclosing Party for any reason, the Receiving Party will, at the option of the Receiving\nParty, promptly (i) destroy all copies (which shall include to the extent practical erasing or deleting all electronic copies) of the Evaluation\nMaterial in the possession or control of the Receiving Party or its Representatives or (ii) deliver to the Disclosing Party at the expense of the\nReceiving Party all hard copies of the Evaluation Material and, to the extent practical, erase or delete all electronic copies of the Evaluation\nMaterial in the possession or control of the Receiving Party or its Representatives. In addition, if\nrequested in writing by the Disclosing Party, the Receiving Party agrees to have an officer certify in writing to the Disclosing Party that the\nReceiving Party has complied with its obligations under this paragraph. Notwithstanding the return or destruction (as applicable) of the\nEvaluation Material, the Receiving Party and its Representatives will continue to be bound by its confidentiality and non-disclosure obligations\npursuant to the terms of this Agreement. Notwithstanding anything herein, (i) a Receiving Party may retain a copy of the Evaluation Material\ndisclosed to it for legal archival purposes to evidence such party’s compliance with the terms of this Agreement, (ii) any of such Receiving\nParty’s Representatives that are financial institutions may retain for compliance purposes only a copy of the Evaluation Material so required by\napplicable law or other policies of self-regulatory organizations and (iii) such Receiving Party’s counsels may retain a copy of the Evaluation\nMaterial that reflects the advice of counsel or may otherwise contain attorney client privileged materials for legal archival purposes.\n6. The Receiving Party understands and acknowledges that neither the Disclosing Party nor any of its Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy, timeliness or completeness of the Evaluation Material. The Receiving Party\nagrees that neither the Disclosing Party nor any of its Representatives shall have any liability (including, without limitation, in contract, tort,\nunder federal or state securities laws or otherwise) to the Receiving Party or to any of its Representatives relating to or resulting from the use or\nnon-use of the Evaluation Material or any errors therein or omissions therefrom, regardless of any decision made in reliance on the Evaluation\nMaterial, and neither the Receiving Party nor its Representatives will make any claims whatsoever against such persons, with respect to, or\narising out of, the Evaluation Material. Notwithstanding the above, those representations or warranties that are made in a Definitive Agreement\n(as defined below) regarding a negotiated Transaction between the parties, when, as and if executed, and subject to such limitations and\nrestrictions as may be specified therein, will have legal effect. The term “Definitive Agreement” means a written contract executed and\ndelivered by all parties thereto for the Transaction, which contract binds the parties thereto to close such Transaction, subject only to such\nconditions to closing as may be negotiated between the parties thereto, and does not include an executed letter of intent or any other preliminary\nwritten agreement, nor does it include any written or oral acceptance of an offer or bid for the Transaction. Notwithstanding anything to the\ncontrary contained in this Section 6 or elsewhere in this Agreement, nothing in this Agreement will operate to limit any remedy the Receiving\nParty or any of its Representatives may have for fraud committed by the Disclosing Party or any of its Representatives (whether or not such fraud\nrelates to a representation made in a written agreement between the parties).\n7. Each party understands and agrees that no contract or agreement providing for the Transaction shall be deemed to exist between\nthem unless and until a Definitive Agreement has been executed and delivered between them. Each party also agrees that unless and until a\nDefinitive Agreement has been executed and delivered between them, neither party shall be under any legal obligation of any kind whatsoever\nwith respect to the Transaction by virtue of this Agreement, except for the matters specifically agreed to herein and in the related Exclusivity\nAgreement between the parties dated of the date hereof. Each party further\nacknowledges and agrees that the other party may at any time, in its sole discretion, for any reason or no reason, without prior notice to the other\nparty, reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction, terminate discussions and\nnegotiations with the other party and its Representatives or refuse to provide any further access to the Evaluation Materials.\n8. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of\nthe restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material,\nnonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably\nforeseeable that such other person is likely to purchase or sell such securities in reliance upon such information. Each party hereby represents\nthat, as of the date hereof, it and its controlled affiliates do not, directly or indirectly, (i) own of record or beneficially any securities of the other\nparty or (ii) possess or have the right to possess (whether upon the occurrence of an event, lapse of time or otherwise) any economic interest,\nvoting right or other right with respect to any security of the other party or any of its affiliates, including Derivative Securities.\n9. To the extent that any Evaluation Material includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit,\nproceeding, investigation, inquiry, arbitration or dispute, each party acknowledges that the parties have a commonality of interest with respect to\nsuch action, suit, proceeding, investigation, inquiry, arbitration or dispute, and agree that it is the parties’ mutual desire, intention and\nunderstanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such\nmaterials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Evaluation Material that is entitled to protection\nunder the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder\nand shall be entitled to protection under the joint defense doctrine, and each party agrees to take all reasonable measures necessary to preserve, to\nthe fullest extent possible, the applicability of all such privileges and doctrines.\n10. This Agreement contains the entire agreement between Intel and the Company concerning the subject matter of this Agreement,\nand no provision of this Agreement may be waived or amended, except by the written consent of the parties, which consent shall explicitly\nreference such waiver or amendment. Any attempted waiver or amendment in violation of this provision shall be void ab initio. Notwithstanding\nthe foregoing, this Agreement shall not supersede any other non-disclosure agreement or confidentiality agreement entered into between the\nparties prior to the date hereof and not in connection with a potential Transaction.\n11. Itis understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any\nother right, power or privilege.\n12.  Each party acknowledge that money damages may not be a sufficient remedy for any breach or threatened breach of this\nAgreement by the other party or any of its Representatives and each party shall be entitled to seek injunctive relief without proof of actual\ndamages or posting of a bond as a remedy for any such breach or threatened breach. Such remedies shall not be deemed to be the exclusive\nremedies for a breach or threatened breach by a party or any of its Representatives of this Agreement but may be in addition to all other remedies\navailable at law or equity to the other party. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in\nan order that a party or any of its Representatives has breached or threatened to breach this Agreement, then such party will reimburse the other\nparty for the reasonable legal fees and expenses incurred by the other party in connection with enforcing its rights hereunder, including any\nappeal therefrom.\n13. This Agreement and all disputes or controversies arising out of or relating to this Agreement shall be governed by and construed\nin accordance with the internal laws of the State of New York, without reference to its conflicts of law principles.\n14. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the United States District\nCourt for the Southern District of New York or any New York State court sitting in the Borough of Manhattan, New York City for any actions,\nsuits or proceedings arising out of or relating to this Agreement and agree (i) not to commence any action, suit or proceeding relating thereto\nexcept in such courts, (ii) to waive and not to assert any defenses as to personal jurisdiction of such courts over such party and (iii) that service of\nany process, summons, notice or document by U.S. registered mail to the address set forth above shall be effective service of process for any\naction, suit or proceeding brought against a party in such courts.\n15. The provisions of this Agreement shall be severable in the event that any of the provisions hereof are held by a court of\ncompetent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent\npermitted by law.\n16. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed\noriginal, and all such counterparts shall together constitute one and the same instrument.\n17.  This Agreement shall inure solely to the benefit of and be binding upon each of the parties hereto and their respective\nsuccessors and permitted assigns; provided that neither party may assign this Agreement or any of its rights and obligations hereunder without\nthe prior written consent of the other party. Any attempted assignment by a party without the other party’s prior written consent will be of no\nforce and effect.\n18. Except as expressly set forth herein, each of the parties shall be responsible for its own costs and expenses associated with the\nsubject matter of this Agreement, whether or not a Transaction is consummated.\n19. No licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied by this Agreement\nexcept for the right to review the Evaluation Material for purposes of considering, pursuing and/or facilitating a Transaction pursuant to\nparagraph 1 hereof. Neither party is obligated under this Agreement to purchase from or provide to the other party any service or product.\n20. This Agreement and all obligations hereunder shall terminate and cease to be of any further force or effect as of the second\n(2nd) anniversary of the date of this Agreement.\n[Remainder of Page Intentionally Left Blank]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this Agreement shall become a binding agreement between Intel and the Company. Accepted: February 1, 2017\nMOBILEYE N.V.\nBy: /s/ Ziv Aviram\nVery truly yours,\nINTEL CORPORATION\nBy: /s/ Wendell M. Brooks\nName: Wendell M. Brooks\nTitle: Senior Vice President and\nPresident Intel Capital\nName: Ziv Aviram Title: CEO and President\nBy: /s/ Prof. Amnon Shashva\nName: Prof. Amnon Shashva Title: CTO and Chairman\n[Signature Page to Letter Agreement]	EX-99.(D)(2) 9 d352811dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nCONFIDENTIAL\nFebruary 1, 2017\nMobileye N.V.\nHar Hotzvim, 13 Hartom Street\nP.O. Box 45157\nJerusalem 9777513, Israel\nAttn: Professor Amnon Shashua, Chairman and Chief Technology Officer\nDear Amnon:\nIn connection with the consideration by Intel Corporation ("Intel") of a possible transaction involving Intel and Mobileye N.V. (the\n"Company") or one or more shareholders of the Company (the "Transaction"), each of us may receive certain information relating to the other\nparty and its subsidiaries. The party receiving this information from the other party (the "Receiving Party") acknowledges that this information\nis proprietary to the party disclosing such information (the "Disclosing Party") and may include confidential information the disclosure of which\ncould harm the disclosing party and its subsidiaries.\nIn consideration for, and as a condition of, such information being made available to the Receiving Party and its Representatives (as\ndefined below), the Receiving Party agrees to treat, or cause to be treated, any and all information disclosed by the Disclosing Party or any of its\nsubsidiaries to the Receiving Party or its Representatives in connection with the proposed Transaction on or after the date of this letter agreement\n(this "Agreement") (and regardless of the manner or form in which it is disclosed, including, without limitation, all written, oral and electronic\ncommunications and all information posted in any electronic dataroom), together with any notes, analyses, reports, models, compilations, studies,\ninterpretations, documents or records to the extent such documents contain or are derived from such information, in whole or in part\n(collectively, the "Evaluation Material"), in accordance with the provisions of this Agreement, and to take or abstain from taking the other\nactions hereinafter set forth. For purposes of this Agreement, the term "Evaluation Material" does not include information that (i) becomes\ngenerally available to the public other than as a result of a disclosure by the Receiving Party or its Representatives in breach of the terms of\nthis\nAgreement, (ii) is independently developed by the Receiving Party or its Representatives without reference to or use of the Disclosing Party's\nconfidential information, (iii) was within the Receiving Party's possession prior to the date of this Agreement or (iv) is received\nby\nthe\nReceiving\nParty from a source other than the Disclosing Party or any of its Representatives; provided that, in the case of clause (iii) above, to the extent\nsuch information was provided to the Receiving Party by the Disclosing Party, then the Receiving Party shall be permitted to use such\ninformation in connection with a potential\nTransaction and such information will continue to be subject to any other non-disclosure or confidentiality agreement entered into between\nthe\nparties prior to the date hereof and not in connection with a potential Transaction provided further that, in the case of clause (iv) above, to the\nknowledge of the Receiving Party, the source of such information was not bound by a confidentiality agreement with or other contractual, legal\nor fiduciary obligation of confidentiality to the Disclosing Party or any of its subsidiaries with respect to such information. Notwithstanding\nanything to the contrary herein, each party and its Representatives shall be free to use and employ, in any manner and for any purpose, any\nResiduals resulting from their access to or work with Evaluation Material, including, without limitation, in the development, manufacture, sales,\npromotion and maintenance of the products or services of the Receiving Party. "Residuals" means information retained in the unaided memories\nof Representatives of the Receiving Party who have access to the Evaluation Material. The memory of a Representative is considered unaided if\nhe or she did not intentionally memorize the information for the purpose of retaining it and later using it or disclosing it to a third party. Each\nparty reserves all rights, subject to the terms and conditions of this Agreement, (a) to design, develop, manufacture, market, and distribute\nproducts and services that contain similar features or functionality to, or that compete with, products or services of the other party or its\nsubsidiaries; and (b) to enter into agreements with third parties who design, develop, manufacture, market, or distribute products or services\nthat\ncontain similar features or functionality to, or that compete with, products or services of the other party and its subsidiaries. The provisions of\nthis Agreement will not restrict the free movement, or assignment to different tasks and activities, of Representatives of the receiving party\nthroughout his or her organization.\nFor purposes of this Agreement, the term "Representative" with respect to Intel shall mean Intel and its subsidiaries' (i) directors, officers\nand employees and (ii) agents, representatives and advisors, which may include attorneys, accountants, consultants, potential financing sources\nand representatives of such advisors. For purposes of this Agreement, the term "Representative" with respect to the Company shall mean the\nCompany and its subsidiaries' (i) directors, officers and employees and (ii) agents, representatives and advisors, which may include attorneys,\naccountants, consultants and representatives of such advisors. For purposes of this Agreement, the term "person" shall be broadly interpreted to\ninclude the media and any corporation partnership, company, limited liability company, trust, association, joint venture, government or self-\nregulatory agency or body, group (as such term is used in Rule 13d-5(b)(1) of the Securities Exchange Act of 1934, as amended (the "Exchange\nAct")), individual or other entity. For purposes of this Agreement, the term "affiliate" shall have the meaning ascribed to such term in Rule 12b-2\nunder the Exchange Act.\n1. The Receiving Party hereby agrees that the Receiving Party and its Representatives will (i) keep the Evaluation Material\nconfidential and (ii) not disclose any of the Evaluation Material without the prior written consent of the Disclosing Party; provided, however, that\nthe Receiving Party may disclose Evaluation Material only to its Representatives (a) who have a reasonable need to know particular Evaluation\nMaterial for the purpose of considering, pursuing and/or facilitating a Transaction, (b) who are informed by the Receiving Party in advance of\nthe\nconfidential nature of such information and (c) who agree to act in\naccordance with the terms of this Agreement to the same extent as if they were parties hereto, for the benefit of the Disclosing Party. The\nReceiving Party will be responsible for any breach of this Agreement by any of its Representatives and the Receiving Party agrees to take\ncommercially reasonable measures to restrain its Representatives from disclosure or improper use of the Evaluation Material or from breaching\nany other provision of this Agreement.\n2. Each party agrees, unless otherwise required by law or regulation, without the prior written consent of the other party, not to\ndisclose, directly or indirectly, to any person other than its Representatives that (i) the parties have entered into this Agreement, (ii) the\nEvaluation Material exists or has been made available by the Disclosing Party to the Receiving Party and its Representatives and (iii) discussions\nor negotiations are taking or have taken place concerning the Transaction between Intel and the Company concerning the Transaction or any\nof\nthe terms, conditions or other facts with respect thereto (including the status thereof).\n3. Each party will submit all: (i) communications regarding a Transaction, (ii) requests for additional information in connection\nwith a Transaction; (iii) requests for facility tours or management meetings in connection with a Transaction; and (iv) questions regarding\nprocedures in connection with a Transaction, only to persons specifically designated by the other party for that purpose.\n4. In the event that the Receiving Party or any of its Representatives is required by applicable law, regulation, stock exchange\nrequirement, subpoena or legal process (including oral questions, civil investigative demand, subpoena, request for information or documents, or\nother similar process or filing with the Securities and Exchange Commission or regulatory body) to disclose any of the Evaluation Material or\ninformation described in paragraph 2 of this Agreement other than as expressly permitted under the terms of this Agreement, the Receiving Party\nwill, to the extent reasonably practicable and as far in advance as is reasonably practicable, promptly notify the Disclosing Party of the\ninformation to be disclosed so that the Disclosing Party may, at its election and expense, seek a protective order or other appropriate remedy. In\nno event shall the Receiving Party, or any of its Representatives, disclose any Evaluation Material other than that portion of the Evaluation\nMaterial that the Receiving Party's legal counsel advises the Receiving Party is legally required to be disclosed or oppose an action by the\nDisclosing Party to obtain a protective order, motion to quash and/or other relief to prevent the production or disclosure of the Evaluation\nMaterial or to obtain an appropriate protective order or other reliable assurance that confidential treatment will be afforded the information\nso\ndisclosed.\n5. At any time upon the request of the Disclosing Party for any reason, the Receiving Party will, at the option of the Receiving\nParty, promptly (i) destroy all copies (which shall include to the extent practical erasing or deleting all electronic copies) of the Evaluation\nMaterial in the possession or control of the Receiving Party or its Representatives or (ii) deliver to the Disclosing Party at the expense of the\nReceiving Party all hard copies of the Evaluation Material and, to the extent practical, erase or delete all electronic copies of the Evaluation\nMaterial in the possession or control of the Receiving Party or its Representatives. In addition, if\nrequested in writing by the Disclosing Party, the Receiving Party agrees to have an officer certify in writing to the Disclosing Party that the\nReceiving Party has complied with its obligations under this paragraph. Notwithstanding the return or destruction (as applicable) of the\nEvaluation Material, the Receiving Party and its Representatives will continue to be bound by its confidentiality and non-disclosure obligations\npursuant to the terms of this Agreement. Notwithstanding anything herein, (i) a Receiving Party may retain a copy of the Evaluation Material\ndisclosed to it for legal archival purposes to evidence such party's compliance with the terms of this Agreement, (ii) any of such Receiving\nParty's Representatives that are financial institutions may retain for compliance purposes only a copy of the Evaluation Material so required by\napplicable law or other policies of self-regulatory organizations and (iii) such Receiving Party's counsels may retain a copy of the Evaluation\nMaterial that reflects the advice of counsel or may otherwise contain attorney client privileged materials for legal archival purposes.\n6. The Receiving Party understands and acknowledges that neither the Disclosing Party nor any of its Representatives makes\nany\nrepresentation or warranty, express or implied, as to the accuracy, timeliness or completeness of the Evaluation Material. The Receiving Party\nagrees that neither the Disclosing Party nor any of its Representatives shall have any liability (including, without limitation, in contract, tort,\nunder federal or state securities laws or otherwise) to the Receiving Party or to any of its Representatives relating to or resulting from the use\nor\nnon-use of the Evaluation Material or any errors therein or omissions therefrom, regardless of any decision made in reliance on the Evaluation\nMaterial, and neither the Receiving Party nor its Representatives will make any claims whatsoever against such persons, with respect to,\nor\narising out of, the Evaluation Material. Notwithstanding the above, those representations or warranties that are made in a Definitive Agreement\n(as\ndefined below) regarding a negotiated Transaction between the parties, when, as and if executed, and subject to such limitations and\nrestrictions as may be specified therein, will have legal effect. The term "Definitive Agreement" means a written contract executed and\ndelivered by all parties thereto for the Transaction, which contract binds the parties thereto to close such Transaction, subject only to such\nconditions to closing as may be negotiated between the parties thereto, and does not include an executed letter of intent or any other preliminary\nwritten agreement, nor does it include any written or oral acceptance of an offer or bid for the Transaction. Notwithstanding anything to the\ncontrary contained in this Section 6 or elsewhere in this Agreement, nothing in this Agreement will operate to limit any remedy the Receiving\nParty or any of its Representatives may have for fraud committed by the Disclosing Party or any of its Representatives (whether or not such fraud\nrelates to a representation made in a written agreement between the parties).\n7.\nEach party understands and agrees that no contract or agreement providing for the Transaction shall be deemed to exist between\nthem unless and until a Definitive Agreement has been executed and delivered between them. Each party also agrees that unless and until a\nDefinitive Agreement has been executed and delivered between them, neither party shall be under any legal obligation of any kind whatsoever\nwith respect to the Transaction by virtue of this Agreement, except for the matters specifically agreed to herein and in the related Exclusivity\nAgreement between the parties dated of the date hereof. Each party further\nacknowledges and agrees that the other party may at any time, in its sole discretion, for any reason or no reason, without prior notice to the other\nparty, reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction, terminate discussions and\nnegotiations with the other party and its Representatives or refuse to provide any further access to the Evaluation Materials.\n8. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of\nthe restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material,\nnonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably\nforeseeable that such other person is likely to purchase or sell such securities in reliance upon such information. Each party hereby represents\nthat, as of the date hereof, it and its controlled affiliates do not, directly or indirectly, (i) own of record or beneficially any securities of the other\nparty or (ii) possess or have the right to possess (whether upon the occurrence of an event, lapse of time or otherwise) any economic interest,\nvoting right or other right with respect to any security of the other party or any of its affiliates, including Derivative Securities.\n9.\nTo the extent that any Evaluation Material includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit,\nproceeding, investigation, inquiry, arbitration or dispute, each party acknowledges that the parties have a commonality of interest with respect\nto\nsuch action, suit, proceeding, investigation, inquiry, arbitration or dispute, and agree that it is the parties' mutual desire, intention and\nunderstanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such\nmaterials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Evaluation Material that is entitled to protection\nunder the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder\nand shall be entitled to protection under the joint defense doctrine, and each party agrees to take all reasonable measures necessary to preserve,\nto\nthe fullest extent possible, the applicability of all such privileges and doctrines.\n10. This Agreement contains the entire agreement between Intel and the Company concerning the subject matter of this Agreement,\nand no provision of this Agreement may be waived or amended, except by the written consent of the parties, which consent shall explicitly\nreference\nsuch waiver or amendment. Any attempted waiver or amendment in violation of this provision shall be void ab initio. Notwithstanding\nthe foregoing, this Agreement shall not supersede any other non-disclosure agreement or confidentiality agreement entered into between\nthe\nparties prior to the date hereof and not in connection with a potential Transaction.\n11. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any\nother right, power or privilege.\n12. Each party acknowledge that money damages may not be a sufficient remedy for any breach or threatened breach of this\nAgreement by the other party or any of its Representatives and each party shall be entitled to seek injunctive relief without proof of actual\ndamages or posting of a bond as a remedy for any such breach or threatened breach. Such remedies shall not be deemed to be the exclusive\nremedies for a breach or threatened breach by a party or any of its Representatives of this Agreement but may be in addition to all other remedies\navailable at law or equity to the other party. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines\nin\nan order that a party or any of its Representatives has breached or threatened to breach this Agreement, then such party will reimburse the other\nparty for the reasonable legal fees and expenses incurred by the other party in connection with enforcing its rights hereunder, including any\nappeal therefrom.\n13. This Agreement and all disputes or controversies arising out of or relating to this Agreement shall be governed by and construed\nin accordance with the internal laws of the State of New York, without reference to its conflicts of law principles.\n14. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the United States District\nCourt for the Southern District of New York or any New York State court sitting in the Borough of Manhattan, New York City for any actions,\nsuits or proceedings arising out of or relating to this Agreement and agree (i) not to commence any action, suit or proceeding relating thereto\nexcept in such courts, (ii) to waive and not to assert any defenses as to personal jurisdiction of such courts over such party and (iii) that service\nof\nany process, summons, notice or document by U.S. registered mail to the address set forth above shall be effective service of process for any\naction, suit or proceeding brought against a party in such courts.\n15. The provisions of this Agreement shall be severable in the event that any of the provisions hereof are held by a court of\ncompetent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent\npermitted by law.\n16. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed\noriginal, and all such counterparts shall together constitute one and the same instrument.\n17. This Agreement shall inure solely to the benefit of and be binding upon each of the parties hereto and their respective\nsuccessors and permitted assigns; provided that neither party may assign this Agreement or any of its rights and obligations hereunder without\nthe prior written consent of the other party. Any attempted assignment by a party without the other party's prior written consent will be of\nno\nforce and effect.\n18. Except as expressly set forth herein, each of the parties shall be responsible for its own costs and expenses associated with the\nsubject matter of this Agreement, whether or not a Transaction is consummated.\n19. No licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied by this Agreement\nexcept for the right to review the Evaluation Material for purposes of considering, pursuing and/or facilitating a Transaction pursuant to\nparagraph 1 hereof. Neither party is obligated under this Agreement to purchase from or provide to the other party any service or product.\n20. This Agreement and all obligations hereunder shall terminate and cease to be of any further force or effect as of the second\n(2nd) anniversary of the date of this Agreement.\n[Remainder of Page Intentionally Left Blank]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this\nAgreement shall become a binding agreement between Intel and the Company.\nVery truly yours,\nINTEL CORPORATION\nBy: /s/ Wendell M. Brooks\nName: Wendell M. Brooks\nTitle: Senior Vice President and\nPresident Intel Capital\nAccepted: February 1, 2017\nMOBILEYE N.V.\nBy: /s/ Ziv Aviram\nName: Ziv Aviram\nTitle: CEO and President\nBy: /s/ Prof. Amnon Shashva\nName: Prof. Amnon Shashva\nTitle: CTO and Chairman\n[Signature Page to Letter Agreement]	EX-99.(D)(2) 9 d352811dex99d2.htm EX-99.(D)(2)\nExhibit (d)(2)\nCONFIDENTIAL\nFebruary 1, 2017\nMobileye N.V.\nHar Hotzvim, 13 Hartom Street\nP.O . Box 45157\nJerusalem 9777513, Israel\nAttn: Professor Amnon Shashua, Chairman and Chief Technology Officer\nDear Amnon:\nIn connection with the consideration by Intel Corporation (“Intel”) of a possible transaction involving Intel and Mobileye N.V. (the\n“Company”) or one or more shareholders of the Company (the “Transaction”), each of us may receive certain information relating to the other\nparty and its subsidiaries. The party receiving this information from the other party (the “Receiving Party”) acknowledges that this information\nis proprietary to the party disclosing such information (the “Disclosing Party”) and may include confidential information the disclosure of which\ncould harm the disclosing party and its subsidiaries.\nIn consideration for, and as a condition of, such information being made available to the Receiving Party and its Representatives (as\ndefined below), the Receiving Party agrees to treat, or cause to be treated, any and all information disclosed by the Disclosing Party or any of its\nsubsidiaries to the Receiving Party or its Representatives in connection with the proposed Transaction on or after the date of this letter agreement\n(this “Agreement”) (and regardless of the manner or form in which it is disclosed, including, without limitation, all written, oral and electronic\ncommunications and all information posted in any electronic dataroom), together with any notes, analyses, reports, models, compilations, studies,\ninterpretations, documents or records to the extent such documents contain or are derived from such information, in whole or in part\n(collectively, the “Evaluation Material”), in accordance with the provisions of this Agreement, and to take or abstain from taking the other\nactions hereinafter set forth. For purposes of this Agreement, the term “Evaluation Material” does not include information that (i) becomes\ngenerally available to the public other than as a result of a disclosure by the Receiving Party or its Representatives in breach of the terms of this\nAgreement, (ii) is independently developed by the Receiving Party or its Representatives without reference to or use of the Disclosing Party’s\nconfidential information, (iii) was within the Receiving Party’s possession prior to the date of this Agreement or (iv) is received by the Receiving\nParty from a source other than the Disclosing Party or any of its Representatives; provided that, in the case of clause (iii) above, to the extent\nsuch information was provided to the Receiving Party by the Disclosing Party, then the Receiving Party shall be permitted to use such\ninformation in connection with a potential\nTransaction and such information will continue to be subject to any other non-disclosure or confidentiality agreement entered into between the\nparties prior to the date hereof and not in connection with a potential Transaction; provided further that, in the case of clause (iv) above, to the\nknowledge of the Receiving Party, the source of such information was not bound by a confidentiality agreement with or other contractual, legal\nor fiduciary obligation of confidentiality to the Disclosing Party or any of its subsidiaries with respect to such information. Notwithstanding\nanything to the contrary herein, each party and its Representatives shall be free to use and employ, in any manner and for any purpose, any\nResiduals resulting from their access to or work with Evaluation Material, including, without limitation, in the development, manufacture, sales,\npromotion and maintenance of the products or services of the Receiving Party. “Residuals” means information retained in the unaided memories\nof Representatives of the Receiving Party who have access to the Evaluation Material. The memory of a Representative is considered unaided if\nhe or she did not intentionally memorize the information for the purpose of retaining it and later using it or disclosing it to a third party. Each\nparty reserves all rights, subject to the terms and conditions of this Agreement, (a) to design, develop, manufacture, market, and distribute\nproducts and services that contain similar features or functionality to, or that compete with, products or services of the other party or its\nsubsidiaries; and (b) to enter into agreements with third parties who design, develop, manufacture, market, or distribute products or services that\ncontain similar features or functionality to, or that compete with, products or services of the other party and its subsidiaries. The provisions of\nthis Agreement will not restrict the free movement, or assignment to different tasks and activities, of Representatives of the receiving party\nthroughout his or her organization.\nFor purposes of this Agreement, the term “Representative” with respect to Intel shall mean Intel and its subsidiaries’ (i) directors, officers\nand employees and (ii) agents, representatives and advisors, which may include attorneys, accountants, consultants, potential financing sources\nand representatives of such advisors. For purposes of this Agreement, the term “Representative” with respect to the Company shall mean the\nCompany and its subsidiaries’ (i) directors, officers and employees and (ii) agents, representatives and advisors, which may include attorneys,\naccountants, consultants and representatives of such advisors. For purposes of this Agreement, the term “person” shall be broadly interpreted to\ninclude the media and any corporation, partnership, company, limited liability company, trust, association, joint venture, government or self-\nregulatory agency or body, group (as such term is used in Rule 13d-5(b)(1) of the Securities Exchange Act of 1934, as amended (the “Exchange\nAct”)), individual or other entity. For purposes of this Agreement, the term “affiliate” shall have the meaning ascribed to such term in Rule 12b-2\nunder the Exchange Act.\n1. The Receiving Party hereby agrees that the Receiving Party and its Representatives will (i) keep the Evaluation Material\nconfidential and (ii) not disclose any of the Evaluation Material without the prior written consent of the Disclosing Party; provided, however, that\nthe Receiving Party may disclose Evaluation Material only to its Representatives (a) who have a reasonable need to know particular Evaluation\nMaterial for the purpose of considering, pursuing and/or facilitating a Transaction, (b) who are informed by the Receiving Party in advance of the\nconfidential nature of such information and (c) who agree to act in\naccordance with the terms of this Agreement to the same extent as if they were parties hereto, for the benefit of the Disclosing Party. The\nReceiving Party will be responsible for any breach of this Agreement by any of its Representatives and the Receiving Party agrees to take\ncommercially reasonable measures to restrain its Representatives from disclosure or improper use of the Evaluation Material or from breaching\nany other provision of this Agreement.\n2. Each party agrees, unless otherwise required by law or regulation, without the prior written consent of the other party, not to\ndisclose, directly or indirectly, to any person other than its Representatives that (i) the parties have entered into this Agreement, (ii) the\nEvaluation Material exists or has been made available by the Disclosing Party to the Receiving Party and its Representatives and (iii) discussions\nor negotiations are taking or have taken place concerning the Transaction between Intel and the Company concerning the Transaction or any of\nthe terms, conditions or other facts with respect thereto (including the status thereof).\n3. Each party will submit all: (i) communications regarding a Transaction, (ii) requests for additional information in connection\nwith a Transaction; (iii) requests for facility tours or management meetings in connection with a Transaction; and (iv) questions regarding\nprocedures in connection with a Transaction, only to persons specifically designated by the other party for that purpose.\n4. In the event that the Receiving Party or any of its Representatives is required by applicable law, regulation, stock exchange\nrequirement, subpoena or legal process (including oral questions, civil investigative demand, subpoena, request for information or documents, or\nother similar process or filing with the Securities and Exchange Commission or regulatory body) to disclose any of the Evaluation Material or\ninformation described in paragraph 2 of this Agreement other than as expressly permitted under the terms of this Agreement, the Receiving Party\nwill, to the extent reasonably practicable and as far in advance as is reasonably practicable, promptly notify the Disclosing Party of the\ninformation to be disclosed so that the Disclosing Party may, at its election and expense, seek a protective order or other appropriate remedy. In\nno event shall the Receiving Party, or any of its Representatives, disclose any Evaluation Material other than that portion of the Evaluation\nMaterial that the Receiving Party’s legal counsel advises the Receiving Party is legally required to be disclosed or oppose an action by the\nDisclosing Party to obtain a protective order, motion to quash and/or other relief to prevent the production or disclosure of the Evaluation\nMaterial or to obtain an appropriate protective order or other reliable assurance that confidential treatment will be afforded the information so\ndisclosed.\n5. At any time upon the request of the Disclosing Party for any reason, the Receiving Party will, at the option of the Receiving\nParty, promptly (i) destroy all copies (which shall include to the extent practical erasing or deleting all electronic copies) of the Evaluation\nMaterial in the possession or control of the Receiving Party or its Representatives or (ii) deliver to the Disclosing Party at the expense of the\nReceiving Party all hard copies of the Evaluation Material and, to the extent practical, erase or delete all electronic copies of the Evaluation\nMaterial in the possession or control of the Receiving Party or its Representatives. In addition, if\nrequested in writing by the Disclosing Party, the Receiving Party agrees to have an officer certify in writing to the Disclosing Party that the\nReceiving Party has complied with its obligations under this paragraph. Notwithstanding the return or destruction (as applicable) of the\nEvaluation Material, the Receiving Party and its Representatives will continue to be bound by its confidentiality and non-disclosure obligations\npursuant to the terms of this Agreement. Notwithstanding anything herein, (i) a Receiving Party may retain a copy of the Evaluation Material\ndisclosed to it for legal archival purposes to evidence such party’s compliance with the terms of this Agreement, (ii) any of such Receiving\nParty’s Representatives that are financial institutions may retain for compliance purposes only a copy of the Evaluation Material so required by\napplicable law or other policies of self-regulatory organizations and (iii) such Receiving Party’s counsels may retain a copy of the Evaluation\nMaterial that reflects the advice of counsel or may otherwise contain attorney client privileged materials for legal archival purposes.\n6. The Receiving Party understands and acknowledges that neither the Disclosing Party nor any of its Representatives makes any\nrepresentation or warranty, express or implied, as to the accuracy, timeliness or completeness of the Evaluation Material. The Receiving Party\nagrees that neither the Disclosing Party nor any of its Representatives shall have any liability (including, without limitation, in contract, tort,\nunder federal or state securities laws or otherwise) to the Receiving Party or to any of its Representatives relating to or resulting from the use or\nnon-use of the Evaluation Material or any errors therein or omissions therefrom, regardless of any decision made in reliance on the Evaluation\nMaterial, and neither the Receiving Party nor its Representatives will make any claims whatsoever against such persons, with respect to, or\narising out of, the Evaluation Material. Notwithstanding the above, those representations or warranties that are made in a Definitive Agreement\n(as defined below) regarding a negotiated Transaction between the parties, when, as and if executed, and subject to such limitations and\nrestrictions as may be specified therein, will have legal effect. The term “Definitive Agreement” means a written contract executed and\ndelivered by all parties thereto for the Transaction, which contract binds the parties thereto to close such Transaction, subject only to such\nconditions to closing as may be negotiated between the parties thereto, and does not include an executed letter of intent or any other preliminary\nwritten agreement, nor does it include any written or oral acceptance of an offer or bid for the Transaction. Notwithstanding anything to the\ncontrary contained in this Section 6 or elsewhere in this Agreement, nothing in this Agreement will operate to limit any remedy the Receiving\nParty or any of its Representatives may have for fraud committed by the Disclosing Party or any of its Representatives (whether or not such fraud\nrelates to a representation made in a written agreement between the parties).\n7. Each party understands and agrees that no contract or agreement providing for the Transaction shall be deemed to exist between\nthem unless and until a Definitive Agreement has been executed and delivered between them. Each party also agrees that unless and until a\nDefinitive Agreement has been executed and delivered between them, neither party shall be under any legal obligation of any kind whatsoever\nwith respect to the Transaction by virtue of this Agreement, except for the matters specifically agreed to herein and in the related Exclusivity\nAgreement between the parties dated of the date hereof. Each party further\nacknowledges and agrees that the other party may at any time, in its sole discretion, for any reason or no reason, without prior notice to the other\nparty, reject any and all proposals made by the other party or any of its Representatives with regard to a Transaction, terminate discussions and\nnegotiations with the other party and its Representatives or refuse to provide any further access to the Evaluation Materials.\n8. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of\nthe restrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material,\nnonpublic information from the issuer of such securities and on the communication of such information to any other person when it is reasonably\nforeseeable that such other person is likely to purchase or sell such securities in reliance upon such information. Each party hereby represents\nthat, as of the date hereof, it and its controlled affiliates do not, directly or indirectly, (i) own of record or beneficially any securities of the other\nparty or (ii) possess or have the right to possess (whether upon the occurrence of an event, lapse of time or otherwise) any economic interest,\nvoting right or other right with respect to any security of the other party or any of its affiliates, including Derivative Securities.\n9. To the extent that any Evaluation Material includes materials or other information that may be subject to the attorney-client\nprivilege, work product doctrine or any other applicable privilege or doctrine concerning any pending, threatened or prospective action, suit,\nproceeding, investigation, inquiry, arbitration or dispute, each party acknowledges that the parties have a commonality of interest with respect to\nsuch action, suit, proceeding, investigation, inquiry, arbitration or dispute, and agree that it is the parties’ mutual desire, intention and\nunderstanding that the sharing of such materials and other information is not intended to, and shall not, affect the confidentiality of any of such\nmaterials or other information or waive or diminish the continued protection of any of such materials or other information under the attorney-\nclient privilege, work product doctrine or other applicable privilege or doctrine. Accordingly, all Evaluation Material that is entitled to protection\nunder the attorney-client privilege, work product doctrine or other applicable privilege or doctrine shall remain entitled to protection thereunder\nand shall be entitled to protection under the joint defense doctrine, and each party agrees to take all reasonable measures necessary to preserve, to\nthe fullest extent possible, the applicability of all such privileges and doctrines.\n10. This Agreement contains the entire agreement between Intel and the Company concerning the subject matter of this Agreement,\nand no provision of this Agreement may be waived or amended, except by the written consent of the parties, which consent shall explicitly\nreference such waiver or amendment. Any attempted waiver or amendment in violation of this provision shall be void ab initio. Notwithstanding\nthe foregoing, this Agreement shall not supersede any other non-disclosure agreement or confidentiality agreement entered into between the\nparties prior to the date hereof and not in connection with a potential Transaction.\n11. It is understood and agreed that no failure or delay by either party in exercising any right, power or privilege hereunder shall\noperate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any\nother right, power or privilege.\n12. Each party acknowledge that money damages may not be a sufficient remedy for any breach or threatened breach of this\nAgreement by the other party or any of its Representatives and each party shall be entitled to seek injunctive relief without proof of actual\ndamages or posting of a bond as a remedy for any such breach or threatened breach. Such remedies shall not be deemed to be the exclusive\nremedies for a breach or threatened breach by a party or any of its Representatives of this Agreement but may be in addition to all other remedies\navailable at law or equity to the other party. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in\nan order that a party or any of its Representatives has breached or threatened to breach this Agreement, then such party will reimburse the other\nparty for the reasonable legal fees and expenses incurred by the other party in connection with enforcing its rights hereunder, including any\nappeal therefrom.\n13. This Agreement and all disputes or controversies arising out of or relating to this Agreement shall be governed by and construed\nin accordance with the internal laws of the State of New York, without reference to its conflicts of law principles.\n14. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the United States District\nCourt for the Southern District of New York or any New York State court sitting in the Borough of Manhattan, New York City for any actions,\nsuits or proceedings arising out of or relating to this Agreement and agree (i) not to commence any action, suit or proceeding relating thereto\nexcept in such courts, (ii) to waive and not to assert any defenses as to personal jurisdiction of such courts over such party and (iii) that service of\nany process, summons, notice or document by U.S. registered mail to the address set forth above shall be effective service of process for any\naction, suit or proceeding brought against a party in such courts.\n15. The provisions of this Agreement shall be severable in the event that any of the provisions hereof are held by a court of\ncompetent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent\npermitted by law.\n16. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed\noriginal, and all such counterparts shall together constitute one and the same instrument.\n17. This Agreement shall inure solely to the benefit of and be binding upon each of the parties hereto and their respective\nsuccessors and permitted assigns; provided that neither party may assign this Agreement or any of its rights and obligations hereunder without\nthe prior written consent of the other party. Any attempted assignment by a party without the other party’s prior written consent will be of no\nforce and effect.\n18. Except as expressly set forth herein, each of the parties shall be responsible for its own costs and expenses associated with the\nsubject matter of this Agreement, whether or not a Transaction is consummated.\n19. No licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied by this Agreement\nexcept for the right to review the Evaluation Material for purposes of considering, pursuing and/or facilitating a Transaction pursuant to\nparagraph 1 hereof. Neither party is obligated under this Agreement to purchase from or provide to the other party any service or product.\n20. This Agreement and all obligations hereunder shall terminate and cease to be of any further force or effect as of the second\n(2nd) anniversary of the date of this Agreement.\n[Remainder of Page Intentionally Left Blank]\nPlease confirm your agreement with the foregoing by signing and returning one copy of this Agreement to the undersigned, whereupon this\nAgreement shall become a binding agreement between Intel and the Company.\nVery truly yours,\nINTEL CORPORATION\nBy: /s/ Wendell M. Brooks\nName: Wendell M. Brooks\nTitle: Senior Vice President and\nPresident Intel Capital\nAccepted: February 1, 2017\nMOBILEYE N.V.\nBy: /s/ Ziv Aviram\nName: Ziv Aviram\nTitle: CEO and President\nBy: /s/ Prof. Amnon Shashva\nName: Prof. Amnon Shashva\nTitle: CTO and Chairman\n[Signature Page to Letter Agreement]
+f4dac00c09a763dfb4acd109e1731690.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 11 dex99d2.htm MUTUAL NON-DISCLOSURE AGREEMENT\nEXHIBIT 99(d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) is effective as of April 2, 2010 (“Effective Date”) and is entered into between Sybase, Inc., a\nDelaware corporation, having a place of business at One Sybase Drive, Dublin, California 94568, USA (“Company”), and SAP AG, a German\ncompany with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries,\n(“SAP”). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the\nfollowing:\n1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company may\ndeliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such Confidential\nInformation being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”).\n2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives (defined\nbelow) to the Receiving Party or its Representatives which is either designated in writing by the Disclosing Party as confidential or should be\nreasonably understood by the Receiving Party to be confidential, including but not limited to, information that is related to: (a) the business plans or\noperations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer or\npartner of the Disclosing Party; (d) the Disclosing Party’s properties, employees, customers, finances, operations; (e) any information about or\nconcerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third\nparty); (f) software and related documentation (“Disclosing Party’s Software”) including but not limited to the following information regarding the\nDisclosing Party’s Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of\nprocessing, system designs embodied in the Disclosing Party’s Software; and (ii) discoveries, inventions, concepts, designs, flow charts,\ndocumentation, product specifications, application program interface specifications, techniques and processes relating to the Disclosing Party’s\nSoftware; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas,\ntechniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts\nand strategies.\n3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any\nreproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all\nconfidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all reasonable steps (defined below)\nto keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its\nRepresentatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the\npurpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation; and (d) shall not\ndisclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to\nknow for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto,\nincluding, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential\nInformation has been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the\nReceiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care.\nAs used herein, “Representatives” shall mean (i) employees of the Receiving Party; (ii) attorneys, accountants, or other professional business\nadvisors; and, additionally, (iii) employees of those entities directly or indirectly owned by the Receiving Party. The Receiving Party shall be\nresponsible for any breach of the terms of this Agreement by it or its Representatives. Each party shall promptly advise the other party of any misuse\nof Confidential Information that may come to its attention.\n4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is\nindependently developed by the Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a\nthird party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this\nAgreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to such party free of restriction; or (d) the\nDisclosing Party agrees in writing is free of such restrictions.\n5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be\nconstrued as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a\ncommitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not\nspecified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to\nthose involved herein.\nConfidential\nPage1of5\nMUTUAL NON-DISCLOSURE AGREEMENT\n6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or\nservices similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this\nAgreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those\nof the other party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from\naccess to or work with Confidential Information disclosed hereunder; provided however that the Receiving Party shall maintain the confidentiality of\nthe Confidential Information as required by this Agreement. The term “residuals” means information in non-tangible form which may be retained in\nthe unaided memory by persons who have had access, as authorized in this Agreement, to the Confidential Information so long as such persons have\nnot studied the information for the purpose of replicating the same from memory. Neither party shall have any obligation to limit or restrict the\nassignment of such persons or to pay royalties for any work resulting from the use of residuals. However, the foregoing shall not be deemed to grant\nto either party a license under the other party’s copyrights or patents.\n7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or\nby legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, the Receiving\nParty shall provide the Disclosing Party, unless prohibited by law, with prompt notice of such request or requirement in order to enable the\nDisclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing\nParty’s taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of\nthis Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives\ncompliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable\nefforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential\nInformation that is so disclosed will be accorded confidential treatment.\n8. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any\nother applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these\nprivileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege.\n9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy\n(provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the\nDisclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible\nmedia, such as electronic mail or computer files) in the Receiving Party’s possession or in the possession of any Representative of the Receiving\nParty; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not\nbe destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in\nconnection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up\nsystems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy\nConfidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further\nprovided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such\nConfidential Information so archived or backed-up.\n10. Each party acknowledges that neither it nor its Representatives nor any of the officers, directors, employees, agents or controlling persons\nof such Representatives makes any express or implied representation or warranty as to the completeness of the Confidential Information.\n11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall\nbe under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of\nintent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set\nforth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such\nmanner as such party, in its sole discretion, may determine (including, without limitation, negotiating and\nConfidential\nPage2of5\nMUTUAL NON-DISCLOSURE AGREEMENT\nentering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion,\nat any time and without notice to the other party) the procedures relating to the parties’ consideration of the potential relationship or transaction\n(including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the\nConfidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability to the other. Any\nbusiness decision either party makes in anticipation of definitive agreements is at the sole risk of the party making the decision, even if the other\nparty is aware of or has indicated approval of, such decision.\n12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the\nrestrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public\ninformation from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable\nthat such other person is likely to purchase or sell such securities in reliance upon such information.\n13. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief\nby way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this\nAgreement.\n14. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors, employees,\nagents or controlling persons of such Representatives makes any express or implied representation or warranty regarding the Confidential\nInformation, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information.\n15. The Receiving Party will not directly or indirectly transfer any Confidential Information to any country, entity or person prohibited from\nobtaining such information by U.S . export laws and shall otherwise comply with all applicable U.S. export laws and regulations.\n16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America,\nwithout giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. In the\nevent that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the\nremaining portions hereof shall remain in full force and effect.\n17. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in\nconnection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the\nparties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either\nparty or software license provisions and rights, then this Agreement shall not supersede either party’s rights and obligations as provided in such other\nagreements, unless such other agreement specifically provides otherwise. Neither party will assign or transfer any rights or obligations under this\nAgreement without the prior written consent of the other party. No amendment or modification of this Agreement shall be valid or binding on the\nparties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver\nof a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further\nunderstood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder.\n18. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party’s\nsole discretion upon thirty (30) days written notice to the other party; provided that the provisions herein concerning the disclosure, protection and\nuse of Confidential Information shall survive the termination or expiration of this Agreement and the provisions of paragraph 19 shall survive a\ntermination of this Agreement until the first anniversary of the Effective Date.\n19. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that\nfor a period of one (1) year from the date of this Agreement, neither party nor any of each party’s affiliates or its Representatives acting on the\nparty’s behalf will, unless specifically invited in writing by the other party or the other party’s Board of Directors or its Chief Executive Officer(s):\n(i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to\nacquire any voting securities of the other party or any subsidiary thereof, or any successor corporation; (ii) make, directly or indirectly, any\n“solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934) to vote, or seek to advise or influence\nany person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or\nsubmit a proposal for, or\nConfidential\nPage3of5\nMUTUAL NON-DISCLOSURE AGREEMENT\noffer of any merger, tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly, a\nmaterial portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a “group” (as defined in Section 13(d)\n(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) request the other party or any of the other\nparty’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or\n(vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of\nthe events described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at\nany time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest\nrelated to a transaction between the parties, provided that (x) each such submission is made on a confidential basis and states that the provider does\nnot intend to, or believe that it will be required by applicable law to, make a public announcement related to such submission or its text or contents\nand that the provider of such submission believes, after discussion with its counsel, that federal securities laws will not require public disclosure of\nthe receipt or contents of such submission by the other party and (y) the party intending to make such submission shall have given the other party at\nleast 2 business days notice of its intention to do so and (2) no party shall be bound by the foregoing restrictions in the event that any person or\n“group” (as defined in Section 13(d)(3) of the 1934 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by\npurchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 40% of the outstanding voting\nsecurities of the other party or assets of the other party or its subsidiaries representing more than 40% of the consolidated earning power of the other\nparty and its subsidiaries and the other party’s Board of Directors has recommended to such other party’s shareholders that such acquisition be\napproved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar\ntransaction, involving such other party in which, following consummation of such transaction, substantially all of the persons or entities who,\nimmediately prior to such transaction, had beneficial ownership of 40% or more of the voting power of such other party would not continue to\nbeneficially own at least 40% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the\ncombined entity and the other party’s Board of Directors has recommended to such other party’s shareholders that such merger, consolidation or\nsimilar transaction be approved.\nConfidential\nPage4of5\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall\nconstitute one and the same agreement.\nAccepted and Agreed to by\nSybase, Inc.\nBy: /s/ Daniel R. Carl\nName: Daniel R. Carl\nTitle: Vice President, General Counsel and Secretary\nDate: April 19, 2010\nSAP AG\nBy: /s/ Werner Brandt\nBy: /s/ Michael Junge\nName: Dr. Werner Brandt\nName: Michael Junge\nTitle: CFO\nTitle: General Counsel\nDate: April 19, 2010\nDate: April 20, 2010\nConfidential\nPage5of5	EX-99.(D)(2) 11 dex99d2.htm MUTUAL NON-DISCLOSURE AGREEMENT\nEXHIBIT 99(d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) is effective as of April 2, 2010 (“Effective Date”) and is entered into between Sybase, Inc., a\nDelaware corporation, having a place of business at One Sybase Drive, Dublin, California 94568, USA (“Company”), and SAP AG, a German\ncompany with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries,\n(“SAP”). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the\nfollowing:\n1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company may\ndeliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such Confidential\nInformation being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”).\n2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives (defined\nbelow) to the Receiving Party or its Representatives which is either designated in writing by the Disclosing Party as confidential or should be\nreasonably understood by the Receiving Party to be confidential, including but not limited to, information that is related to: (a) the business plans or\noperations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer or\npartner of the Disclosing Party; (d) the Disclosing Party’s properties, employees, customers, finances, operations; (e) any information about or\nconcerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third\nparty); (f) software and related documentation (“Disclosing Party’s Software”) including but not limited to the following information regarding the\nDisclosing Party’s Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of\nprocessing, system designs embodied in the Disclosing Party’s Software; and (ii) discoveries, inventions, concepts, designs, flow charts,\ndocumentation, product specifications, application program interface specifications, techniques and processes relating to the Disclosing Party’s\nSoftware; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas,\ntechniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts\nand strategies.\n3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any\nreproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all\nconfidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all reasonable steps (defined below)\nto keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its\nRepresentatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the\npurpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation; and (d) shall not\ndisclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to\nknow for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto,\nincluding, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential\nInformation has been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the\nReceiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care.\nAs used herein, “Representatives” shall mean (i) employees of the Receiving Party; (ii) attorneys, accountants, or other professional business\nadvisors; and, additionally, (iii) employees of those entities directly or indirectly owned by the Receiving Party. The Receiving Party shall be\nresponsible for any breach of the terms of this Agreement by it or its Representatives. Each party shall promptly advise the other party of any misuse\nof Confidential Information that may come to its attention.\n4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is\nindependently developed by the Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a\nthird party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this\nAgreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to such party free of restriction; or (d) the\nDisclosing Party agrees in writing is free of such restrictions.\n5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be\nconstrued as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a\ncommitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not\nspecified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to\nthose involved herein.\nConfidential Page 1 of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\n6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or\nservices similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this\nAgreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those\nof the other party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from\naccess to or work with Confidential Information disclosed hereunder; provided however that the Receiving Party shall maintain the confidentiality of\nthe Confidential Information as required by this Agreement. The term “residuals” means information in non-tangible form which may be retained in\nthe unaided memory by persons who have had access, as authorized in this Agreement, to the Confidential Information so long as such persons have\nnot studied the information for the purpose of replicating the same from memory. Neither party shall have any obligation to limit or restrict the\nassignment of such persons or to pay royalties for any work resulting from the use of residuals. However, the foregoing shall not be deemed to grant\nto either party a license under the other party’s copyrights or patents.\n7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or\nby legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, the Receiving\nParty shall provide the Disclosing Party, unless prohibited by law, with prompt notice of such request or requirement in order to enable the\nDisclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing\nParty’s taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of\nthis Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives\ncompliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable\nefforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential\nInformation that is so disclosed will be accorded confidential treatment.\n8. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any\nother applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these\nprivileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege.\n9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy\n(provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the\nDisclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible\nmedia, such as electronic mail or computer files) in the Receiving Party’s possession or in the possession of any Representative of the Receiving\nParty; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not\nbe destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in\nconnection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up\nsystems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy\nConfidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further\nprovided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such\nConfidential Information so archived or backed-up.\n10. Each party acknowledges that neither it nor its Representatives nor any of the officers, directors, employees, agents or controlling persons\nof such Representatives makes any express or implied representation or warranty as to the completeness of the Confidential Information.\n11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall\nbe under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of\nintent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set\nforth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such\nmanner as such party, in its sole discretion, may determine (including, without limitation, negotiating and\nConfidential Page 2 of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\nentering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion,\nat any time and without notice to the other party) the procedures relating to the parties’ consideration of the potential relationship or transaction\n(including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the\nConfidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability to the other. Any\nbusiness decision either party makes in anticipation of definitive agreements is at the sole risk of the party making the decision, even if the other\nparty is aware of or has indicated approval of, such decision.\n12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the\nrestrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public\ninformation from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable\nthat such other person is likely to purchase or sell such securities in reliance upon such information.\n13. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief\nby way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this\nAgreement.\n14. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors, employees,\nagents or controlling persons of such Representatives makes any express or implied representation or warranty regarding the Confidential\nInformation, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information.\n15. The Receiving Party will not directly or indirectly transfer any Confidential Information to any country, entity or person prohibited from\nobtaining such information by U.S. export laws and shall otherwise comply with all applicable U.S. export laws and regulations.\n16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America,\nwithout giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. In the\nevent that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the\nremaining portions hereof shall remain in full force and effect.\n17. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in\nconnection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the\nparties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either\nparty or software license provisions and rights, then this Agreement shall not supersede either party’s rights and obligations as provided in such other\nagreements, unless such other agreement specifically provides otherwise. Neither party will assign or transfer any rights or obligations under this\nAgreement without the prior written consent of the other party. No amendment or modification of this Agreement shall be valid or binding on the\nparties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver\nof a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further\nunderstood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder.\n18. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party’s\nsole discretion upon thirty (30) days written notice to the other party; provided that the provisions herein concerning the disclosure, protection and\nuse of Confidential Information shall survive the termination or expiration of this Agreement and the provisions of paragraph 19 shall survive a\ntermination of this Agreement until the first anniversary of the Effective Date.\n19. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that\nfor a period of one (1) year from the date of this Agreement, neither party nor any of each party’s affiliates or its Representatives acting on the\nparty’s behalf will, unless specifically invited in writing by the other party or the other party’s Board of Directors or its Chief Executive Officer(s):\n(i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to\nacquire any voting securities of the other party or any subsidiary thereof, or any successor corporation; (ii) make, directly or indirectly, any\n“solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934) to vote, or seek to advise or influence\nany person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or\nsubmit a proposal for, or\nConfidential Page 3 of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\noffer of any merger, tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly, a\nmaterial portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a “group” (as defined in Section 13(d)\n(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) request the other party or any of the other\nparty’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or\n(vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of\nthe events described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at\nany time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest\nrelated to a transaction between the parties, provided that (x) each such submission is made on a confidential basis and states that the provider does\nnot intend to, or believe that it will be required by applicable law to, make a public announcement related to such submission or its text or contents\nand that the provider of such submission believes, after discussion with its counsel, that federal securities laws will not require public disclosure of\nthe receipt or contents of such submission by the other party and (y) the party intending to make such submission shall have given the other party at\nleast 2 business days notice of its intention to do so and (2) no party shall be bound by the foregoing restrictions in the event that any person or\n“group” (as defined in Section 13(d)(3) of the 1934 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by\npurchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 40% of the outstanding voting\nsecurities of the other party or assets of the other party or its subsidiaries representing more than 40% of the consolidated earning power of the other\nparty and its subsidiaries and the other party’s Board of Directors has recommended to such other party’s shareholders that such acquisition be\napproved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar\ntransaction, involving such other party in which, following consummation of such transaction, substantially all of the persons or entities who,\nimmediately prior to such transaction, had beneficial ownership of 40% or more of the voting power of such other party would not continue to\nbeneficially own at least 40% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the\ncombined entity and the other party’s Board of Directors has recommended to such other party’s shareholders that such merger, consolidation or\nsimilar transaction be approved.\nConfidential Page 4 of 5\nMUTUAL NON-DISCLOSURE AGREEMENT This Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement.\nAccepted and Agreed to by\nSybase, Inc.\nBy:  /s/Daniel R. Carl\nName: Daniel R. Carl\nTitle: Vice President, General Counsel and Secretary\nDate: April 19, 2010\nSAP AG\nBy: /s/ Werner Brandt By:\nName: Dr. Werner Brandt Name:\nTitle: CFO Title:\nDate: April 19, 2010 Date:\nConfidential\n/s/ Michael Junge\nMichael Junge\nGeneral Counsel\nApril 20, 2010\nPage 5 of 5	EX-99.(D)(2) 11 dex99d2.htm MUTUAL NON-DISCLOSURE AGREEMENT\nEXHIBIT 99(d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement ("Agreement") is effective as of April 2, 2010 ("Effective Date") and is entered into between Sybase, Inc., a\nDelaware corporation, having a place of business at One Sybase Drive, Dublin, California 94568, USA ("Company"), and SAP AG, a German\ncompany with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries,\n("SAP"). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the\nfollowing:\n1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the "Evaluation"), SAP and Company may\ndeliver to each other, upon the execution of this Agreement, Confidentia Information as defined below (the party disclosing such Confidential\nInformation being the "Disclosing Party" and the party receiving such Confidential Information being the "Receiving Party").\n2. As used herein, "Confidential Information" shall mean all information furnished by the Disclosing Party or its Representatives (defined\nbelow) to the Receiving Party or its Representatives which is either designated in writing by the Disclosing Party as confidential or should be\nreasonably understood by the Receiving Party to be confidential, including but not limited to, information that is related to: (a) the business plans or\noperations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer\nor\npartner of the Disclosing Party; (d) the Disclosing Party's properties, employees, customers, finances, operations; (e) any information about or\nconcerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third\nparty); (f) software and related documentation ("Disclosing Party's Software") including but not limited to the following information regarding the\nDisclosing Party's Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of\nprocessing, system designs embodied in the Disclosing Party's Software; and (ii) discoveries, inventions, concepts, designs, flow charts,\ndocumentation, product specifications, application program interface specifications, techniques and processes relating to the Disclosing Party's\nSoftware; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas,\ntechniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts\nand strategies.\n3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any\nreproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all\nconfidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all reasonable steps (defined below)\nto keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its\nRepresentatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the\npurpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation; and (d) shall not\ndisclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to\nknow for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto,\nincluding, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidentia\nInformation has been made available to the Receiving Party or its Representatives. As used herein "reasonable steps" means those steps the\nReceiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care.\nAs used herein, "Representatives" shall mean (i) employees of the Receiving Party; (ii) attorneys, accountants, or other professional business\nadvisors; and, additionally, (iii) employees of those entities directly or indirectly owned by the Receiving Party. The Receiving Party shall be\nresponsible for any breach of the terms of this Agreement by it or its Representatives. Each party shall promptly advise the other party of any misuse\nof Confidential Information that may come to its attention.\n4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is\nindependently developed by the Receiving Party without reference to the Confidentia Information, or is lawfully received free of restriction from a\nthird party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this\nAgreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to such party free of restriction; or (d) the\nDisclosing Party agrees in writing is free of such restrictions.\n5.\nNeither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be\nconstrued as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a\ncommitment\nas\nto\nany\nproduct,\nincluding\nthe\ndevelopment\nor\nfunctionality\nof\nany\nproduct;\n(c)\nsoliciting\nany\nbusiness\nor\nincurring\nany\nobligation\nnot\nspecified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to\nthose involved herein.\nConfidential\nPage 1 of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\n6. Nothing in this Agreement shall prohibit or restrict either party's right to develop, make, use, market, license or distribute products or\nservices similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this\nAgreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those\nof\nthe\nother party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from\naccess to or work with Confidential Information disclosed hereunder; provided however that the Receiving Party shall maintain the confidentiality of\nthe Confidential Information as required by this Agreement. The term "residuals" means information in non-tangible form which may be retained in\nthe\nunaided\nmemory\nby\npersons\nwho\nhave\nhad\naccess,\nas\nauthorized\nin\nthis\nAgreement,\nto\nthe\nConfidential\nInformation\nso\nlong\nas\nsuch\npersons\nhave\nnot studied the information for the purpose of replicating the same from memory. Neither party shall have any obligation to limit or restrict the\nassignment of such persons or to pay royalties for any work resulting from the use of residuals. However, the foregoing shall not be deemed to grant\nto either party a license under the other party's copyrights or patents.\n7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or\nby legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, the Receiving\nParty shall provide the Disclosing Party, unless prohibited by law, with prompt notice of such request or requirement in order to enable the\nDisclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing\nParty's taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of\nthis Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives\ncompliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable\nefforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential\nInformation that is so disclosed will be accorded confidential treatment.\n8. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any\nother applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled\nto\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these\nprivileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege.\n9. Upon the Disclosing Party's written request, the Receiving Party shall (at the Receiving Party's election) promptly return or destroy\n(provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the\nDisclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible\nmedia, such as electronic mail or computer files) in the Receiving Party's possession or in the possession of any Representative of the Receiving\nParty; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not\nbe destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not,\nin\nconnection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up\nsystems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy\nConfidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further\nprovided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such\nConfidential Information so archived or backed-up.\n10. Each party acknowledges that neither it nor its Representatives nor any of the officers, directors, employees, agents or controlling persons\nof such Representatives makes any express or implied representation or warranty as to the completeness of the Confidential Information.\n11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall\nbe\nunder any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of\nintent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set\nforth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such\nmanner as such party, in its sole discretion, may determine (including, without limitation, negotiating and\nConfidential\nPage 2 of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\nentering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion,\nat any time and without notice to the other party) the procedures relating to the parties' consideration of the potential relationship or transaction\n(including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the\nConfidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability\nto\nthe\nother.\nAny\nbusiness decision either party makes in anticipation of definitive agreements is at the sole risk of the party making the decision, even if the other\nparty is aware of or has indicated approval of, such decision.\n12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the\nrestrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public\ninformation from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable\nthat such other person is likely to purchase or sell such securities in reliance upon such information.\n13. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief\nby way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this\nAgreement.\n14. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors, employees,\nagents or controlling persons of such Representatives makes any express or implied representation or warranty regarding the Confidential\nInformation, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information.\n15. The Receiving Party will not directly or indirectly transfer any Confidential Information to any country, entity or person prohibited from\nobtaining such information by U.S. export laws and shall otherwise comply with all applicable U.S. export laws and regulations.\n16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America,\nwithout giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. In the\nevent that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable,\nthe\nremaining portions hereof shall remain in full force and effect.\n17. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in\nconnection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the\nparties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either\nparty or software license provisions and rights, then this Agreement shall not supersede either party's rights and obligations as provided in such\nother\nagreements, unless such other agreement specifically provides otherwise. Neither party will assign or transfer any rights or obligations under this\nAgreement without the prior written consent of the other party. No amendment or modification of this Agreement shall be valid or binding on the\nparties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver\nof a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further\nunderstood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder.\n18. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party's\nsole discretion upon thirty (30) days written notice to the other party; provided that the provisions herein concerning the disclosure, protection and\nuse of Confidential Information shall survive the termination or expiration of this Agreement and the provisions of paragraph 19 shall survive\na\ntermination of this Agreement until the first anniversary of the Effective Date.\n19. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that\nfor a period of one (1) year from the date of this Agreement, neither party nor any of each party's affiliates or its Representatives acting on the\nparty's behalf will, unless specifically invited in writing by the other party or the other party's Board of Directors or its Chief Executive Officer(s):\n(i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to\nacquire any voting securities of the other party or any subsidiary thereof, or any successor corporation; (ii) make, directly or indirectly, any\n"solicitation" of "proxies" (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934) to vote, or seek to advise or influence\nany person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or\nsubmit a proposal for, or\nConfidential\nPage 3 of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\noffer of any merger, tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly,\na\nmaterial portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a "group" (as defined in Section 13(d)\n(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) request the other party or any of the other\nparty's Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or\n(vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of\nthe\nevents described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at\nany time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest\nrelated to a transaction between the parties, provided that (x) each such submission is made on a confidential basis and states that the provider does\nnot intend to, or believe that it will be required by applicable law to, make a public announcement related to such submission or its text or contents\nand that the provider of such submission believes, after discussion with its counsel, that federal securities laws will not require public disclosure of\nthe receipt or contents of such submission by the other party and (y) the party intending to make such submission shall have given the other party\nat\nleast 2 business days notice of its intention to do so and (2) no party shall be bound by the foregoing restrictions in the event that any person\nor\n"group" (as defined in Section 13(d)(3) of the 1934 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by\npurchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 40% of the outstanding voting\nsecurities of the other party or assets of the other party or its subsidiaries representing more than 40% of the consolidated earning power of the other\nparty and its subsidiaries and the other party's Board of Directors has recommended to such other party's shareholders that such acquisition\nbe\napproved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar\ntransaction, involving such other party in which, following consummation of such transaction, substantially all of the persons or entities who,\nimmediately prior to such transaction, had beneficial ownership of 40% or more of the voting power of such other party would not continue\nto\nbeneficially own at least 40% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the\ncombined entity and the other party's Board of Directors has recommended to such other party's shareholders that such merger, consolidation or\nsimilar transaction be approved.\nConfidential\nPage 4 of 5\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall\nconstitute one and the same agreement.\nAccepted and Agreed to by\nSybase, Inc.\nBy:\n/s/ Daniel R. Carl\nName: Daniel R. Carl\nTitle: Vice President, General Counsel and Secretary\nDate: April 19, 2010\nSAP AG\nBy:\n/s/ Werner Brandt\nBy:\n/s/ Michael Junge\nName: Dr. Werner Brandt\nName: Michael Junge\nTitle: CFO\nTitle: General Counsel\nDate: April 19, 2010\nDate: April 20, 2010\nConfidential\nPage 5 of 5	EX-99.(D)(2) 11 dex99d2.htm MUTUAL NON-DISCLOSURE AGREEMENT\nEXHIBIT 99(d)(2)\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Non-Disclosure Agreement (“Agreement”) is effective as of April 2, 2010 (“Effective Date”) and is entered into between Sybase, Inc., a\nDelaware corporation, having a place of business at One Sybase Drive, Dublin, California 94568, USA (“Company”), and SAP AG, a German\ncompany with its place of business at Dietmar Hopp Allee 16, 69190 Walldorf, Germany on behalf of itself and its wholly owned subsidiaries,\n(“SAP”). In consideration of the mutual covenants contained herein, SAP and Company, intending to be legally bound hereby, agree to the\nfollowing:\n1. In connection with an evaluation relating to a potential relationship, cooperation or transaction (the “Evaluation”), SAP and Company may\ndeliver to each other, upon the execution of this Agreement, Confidential Information as defined below (the party disclosing such Confidential\nInformation being the “Disclosing Party” and the party receiving such Confidential Information being the “Receiving Party”).\n2. As used herein, “Confidential Information” shall mean all information furnished by the Disclosing Party or its Representatives (defined\nbelow) to the Receiving Party or its Representatives which is either designated in writing by the Disclosing Party as confidential or should be\nreasonably understood by the Receiving Party to be confidential, including but not limited to, information that is related to: (a) the business plans or\noperations of the Disclosing Party; (b) the research and development or investigations of the Disclosing Party; (c) the business of any customer or\npartner of the Disclosing Party; (d) the Disclosing Party’s properties, employees, customers, finances, operations; (e) any information about or\nconcerning any third party (which information was provided to the Disclosing Party subject to an applicable confidentiality obligation to such third\nparty); (f) software and related documentation (“Disclosing Party’s Software”) including but not limited to the following information regarding the\nDisclosing Party’s Software: (i) computer software (object and source codes), programming techniques and programming concepts, methods of\nprocessing, system designs embodied in the Disclosing Party’s Software; and (ii) discoveries, inventions, concepts, designs, flow charts,\ndocumentation, product specifications, application program interface specifications, techniques and processes relating to the Disclosing Party’s\nSoftware; and (g) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas,\ntechniques, formulas, data, schematics, trade secrets, know-how, improvements, inventions (whether patentable or not), marketing plans, forecasts\nand strategies.\n3. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any\nreproduction of any Confidential Information of a Disclosing Party shall remain the property of the Disclosing Party and shall contain any and all\nconfidential or proprietary notices or legends which appear on the original. The Receiving Party: (a) shall take all reasonable steps (defined below)\nto keep all Confidential Information strictly confidential; (b) shall not disclose or reveal any Confidential Information to any person other than its\nRepresentatives who are actively and directly participating in the Evaluation or who otherwise need to know the Confidential Information for the\npurpose of the Evaluation; (c) shall not use Confidential Information for any purpose other than in connection with the Evaluation; and (d) shall not\ndisclose to any person (other than those of its Representatives who are actively and directly participating in the Evaluation or who otherwise need to\nknow for the purpose of the Evaluation) any information about the Evaluation, or the terms or conditions or any other facts relating thereto,\nincluding, without limitation, the fact that discussions are taking place with respect thereto or the status thereof, or the fact that Confidential\nInformation has been made available to the Receiving Party or its Representatives. As used herein “reasonable steps” means those steps the\nReceiving Party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care.\nAs used herein, “Representatives” shall mean (i) employees of the Receiving Party; (ii) attorneys, accountants, or other professional business\nadvisors; and, additionally, (iii) employees of those entities directly or indirectly owned by the Receiving Party. The Receiving Party shall be\nresponsible for any breach of the terms of this Agreement by it or its Representatives. Each party shall promptly advise the other party of any misuse\nof Confidential Information that may come to its attention.\n4. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is\nindependently developed by the Receiving Party without reference to the Confidential Information, or is lawfully received free of restriction from a\nthird party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this\nAgreement by the Receiving Party; (c) at the time of disclosure to the Receiving Party was known to such party free of restriction; or (d) the\nDisclosing Party agrees in writing is free of such restrictions.\n5. Neither party is required to disclose any particular information to the other and any disclosure is entirely voluntary and is not intended to be\nconstrued as: (a) granting rights by license or otherwise under any trademark, patent, copyright or other intellectual property right; (b) creating a\ncommitment as to any product, including the development or functionality of any product; (c) soliciting any business or incurring any obligation not\nspecified herein; or (d) prohibiting either party from associating themselves with competitors of the other party for purposes substantially similar to\nthose involved herein.\nConfidential\nPage1of5\nMUTUAL NON-DISCLOSURE AGREEMENT\n6. Nothing in this Agreement shall prohibit or restrict either party’s right to develop, make, use, market, license or distribute products or\nservices similar to or competitive with those of the other party disclosed in the Confidential Information as long as it shall not thereby breach this\nAgreement. Each party acknowledges that the other may already possess or have developed products or services similar to or competitive with those\nof the other party disclosed in the Confidential Information. Further, either party shall be free to use for any purpose the residuals resulting from\naccess to or work with Confidential Information disclosed hereunder; provided however that the Receiving Party shall maintain the confidentiality of\nthe Confidential Information as required by this Agreement. The term “residuals” means information in non-tangible form which may be retained in\nthe unaided memory by persons who have had access, as authorized in this Agreement, to the Confidential Information so long as such persons have\nnot studied the information for the purpose of replicating the same from memory. Neither party shall have any obligation to limit or restrict the\nassignment of such persons or to pay royalties for any work resulting from the use of residuals. However, the foregoing shall not be deemed to grant\nto either party a license under the other party’s copyrights or patents.\n7. In the event that the Receiving Party or any of its Representatives are requested pursuant to, or required by, applicable law or regulation or\nby legal process to disclose any Confidential Information or any other information concerning the Disclosing Party or the Evaluation, the Receiving\nParty shall provide the Disclosing Party, unless prohibited by law, with prompt notice of such request or requirement in order to enable the\nDisclosing Party (i) to seek an appropriate protective order or other remedy; (ii) to consult with the Receiving Party with respect to the Disclosing\nParty’s taking steps to resist or narrow the scope of such request or legal process; or (iii) to waive compliance, in whole or in part, with the terms of\nthis Agreement. In the event that such protective order or other remedy is not obtained in a timely manner, or the Disclosing Party waives\ncompliance, in whole or in part, with the terms of this Agreement, the Receiving Party or its Representative shall use commercially reasonable\nefforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential\nInformation that is so disclosed will be accorded confidential treatment.\n8. To the extent that any Confidential Information may include material subject to the attorney-client privilege, work product doctrine or any\nother applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that\nthey have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such\nmaterial is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the\nattorney-client privilege, work product doctrine or other applicable privilege. All Confidential Information provided by a party that is entitled to\nprotection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these\nprivileges, this Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party to reveal material subject to the\nattorney-client privilege, work product doctrine or any other applicable privilege.\n9. Upon the Disclosing Party’s written request, the Receiving Party shall (at the Receiving Party’s election) promptly return or destroy\n(provided that any such destruction shall be certified by a duly authorized Representative of the Receiving Party) all Confidential Information of the\nDisclosing Party and all copies, reproductions, summaries, analyses or extracts thereof or based thereon (whether in hard-copy form or on intangible\nmedia, such as electronic mail or computer files) in the Receiving Party’s possession or in the possession of any Representative of the Receiving\nParty; provided, however: (i) that if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not\nbe destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; (ii) that the Receiving Party shall not, in\nconnection with the foregoing obligations, be required to identify or delete Confidential Information held electronically in archive or back-up\nsystems in accordance with general systems archiving or backup policies; and (iii) that the Receiving Party shall not be obligated to return or destroy\nConfidential Information of the Disclosing Party to the extent the Receiving Party is required to retain a copy pursuant to applicable law, and further\nprovided that the Receiving Party will not, and the Receiving Party will use reasonable measures to cause its employees not to, access such\nConfidential Information so archived or backed-up.\n10. Each party acknowledges that neither it nor its Representatives nor any of the officers, directors, employees, agents or controlling persons\nof such Representatives makes any express or implied representation or warranty as to the completeness of the Confidential Information.\n11. Until a separate definitive agreement regarding a potential relationship or transaction has been executed by the parties, neither party shall\nbe under any legal obligation or have any liability to the other party of any nature whatsoever with respect to any proposal, term sheet, letter of\nintent, or draft agreement relating to any such potential relationship or transaction (other than with respect to the confidentiality and other matters set\nforth herein). Each party hereto and its Representatives (a) may conduct the process that may or may not result in definitive agreement in such\nmanner as such party, in its sole discretion, may determine (including, without limitation, negotiating and\nConfidential\nPage2of5\nMUTUAL NON-DISCLOSURE AGREEMENT\nentering into a definitive agreement with any third party without notice to the other party); and (b) reserves the right to change (in its sole discretion,\nat any time and without notice to the other party) the procedures relating to the parties’ consideration of the potential relationship or transaction\n(including, without limitation, terminating all further discussions with the other party and requesting that the other party return or destroy the\nConfidential Information as described above). Either party can end the discussions at any time, for any reason, and without liability to the other. Any\nbusiness decision either party makes in anticipation of definitive agreements is at the sole risk of the party making the decision, even if the other\nparty is aware of or has indicated approval of, such decision.\n12. Each party is aware, and will advise its Representatives who are informed of the matters that are the subject of this Agreement, of the\nrestrictions imposed by the United States securities laws on the purchase or sale of securities by any person who has received material, non-public\ninformation from the issuer of such securities and on the communication of such information to any other person when it is reasonably foreseeable\nthat such other person is likely to purchase or sell such securities in reliance upon such information.\n13. Without prejudice to the rights and remedies otherwise available to either party hereto, each party hereto shall be entitled to equitable relief\nby way of injunction or otherwise if the other party or any of its Representatives breach or threaten to breach any of the provisions of this\nAgreement.\n14. The Receiving Party acknowledges that neither the Disclosing Party nor its Representatives nor any of the officers, directors, employees,\nagents or controlling persons of such Representatives makes any express or implied representation or warranty regarding the Confidential\nInformation, including, without limitation, any representation or warranty as to the completeness or accuracy of the Confidential Information.\n15. The Receiving Party will not directly or indirectly transfer any Confidential Information to any country, entity or person prohibited from\nobtaining such information by U.S . export laws and shall otherwise comply with all applicable U.S. export laws and regulations.\n16. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America,\nwithout giving effect to its principles or rules regarding conflicts of laws, other than such principles directing application of New York law. In the\nevent that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, the\nremaining portions hereof shall remain in full force and effect.\n17. This Agreement constitutes the entire understanding between the parties hereto as to Confidential Information disclosed hereunder in\nconnection with the Evaluation and merges all prior discussions between them relating thereto. Notwithstanding the foregoing, in the event the\nparties have entered into, or enter into in the future, other agreements which contain terms concerning ownership or use of work product of either\nparty or software license provisions and rights, then this Agreement shall not supersede either party’s rights and obligations as provided in such other\nagreements, unless such other agreement specifically provides otherwise. Neither party will assign or transfer any rights or obligations under this\nAgreement without the prior written consent of the other party. No amendment or modification of this Agreement shall be valid or binding on the\nparties unless made in writing and signed on behalf of each of the parties by their respective duly authorized officers or representatives. Any waiver\nof a provision of this Agreement shall not be deemed a subsequent waiver of the same or any other provision of this Agreement. It is further\nunderstood and agreed that no failure or delay by either party hereto in exercising any right, power or privilege hereunder shall operate as a waiver\nthereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege\nhereunder.\n18. The term of this Agreement shall be one (1) year beginning with the Effective Date, unless terminated earlier by either party at such party’s\nsole discretion upon thirty (30) days written notice to the other party; provided that the provisions herein concerning the disclosure, protection and\nuse of Confidential Information shall survive the termination or expiration of this Agreement and the provisions of paragraph 19 shall survive a\ntermination of this Agreement until the first anniversary of the Effective Date.\n19. In consideration of the Confidential Information being provided to a Receiving Party for purposes of the Evaluation, the parties agree that\nfor a period of one (1) year from the date of this Agreement, neither party nor any of each party’s affiliates or its Representatives acting on the\nparty’s behalf will, unless specifically invited in writing by the other party or the other party’s Board of Directors or its Chief Executive Officer(s):\n(i) acquire, offer to acquire, or agree to acquire, directly or indirectly, by purchase or otherwise, any voting securities or direct or indirect rights to\nacquire any voting securities of the other party or any subsidiary thereof, or any successor corporation; (ii) make, directly or indirectly, any\n“solicitation” of “proxies” (as such terms are used in Rule 14a-1 under the Securities Exchange Act of 1934) to vote, or seek to advise or influence\nany person or entity with respect to the voting of, any voting securities of the other party; (iii) make any public announcement with respect to, or\nsubmit a proposal for, or\nConfidential\nPage3of5\nMUTUAL NON-DISCLOSURE AGREEMENT\noffer of any merger, tender or exchange offer, restructuring or business combination, involving the other party or to purchase, directly or indirectly, a\nmaterial portion of the assets of the other party or its subsidiaries; (iv) form, join or in any way participate in a “group” (as defined in Section 13(d)\n(3) of the Securities Exchange Act of 1934, as amended) in connection with any of the foregoing; (v) request the other party or any of the other\nparty’s Representatives to amend or waive any provisions of this paragraph in a manner that would require public disclosure of such request; or\n(vi) take any action that could reasonably be expected to require the other party to make a public announcement regarding the possibility of any of\nthe events described in sub-clauses (i) through (v). Notwithstanding anything to the contrary in this paragraph, (1) each party shall be permitted at\nany time and from time to time to submit to the Chief Executive Officer of the other party one or more offers, proposals or indications of interest\nrelated to a transaction between the parties, provided that (x) each such submission is made on a confidential basis and states that the provider does\nnot intend to, or believe that it will be required by applicable law to, make a public announcement related to such submission or its text or contents\nand that the provider of such submission believes, after discussion with its counsel, that federal securities laws will not require public disclosure of\nthe receipt or contents of such submission by the other party and (y) the party intending to make such submission shall have given the other party at\nleast 2 business days notice of its intention to do so and (2) no party shall be bound by the foregoing restrictions in the event that any person or\n“group” (as defined in Section 13(d)(3) of the 1934 Act) other than such party or its affiliates shall (x) acquire or publicly propose to acquire, by\npurchase, merger, tender offer, reorganization, consolidation or otherwise, beneficial ownership of more than 40% of the outstanding voting\nsecurities of the other party or assets of the other party or its subsidiaries representing more than 40% of the consolidated earning power of the other\nparty and its subsidiaries and the other party’s Board of Directors has recommended to such other party’s shareholders that such acquisition be\napproved or (y) enter into an agreement or publicly propose to enter into an agreement providing for the merger or consolidation, or any similar\ntransaction, involving such other party in which, following consummation of such transaction, substantially all of the persons or entities who,\nimmediately prior to such transaction, had beneficial ownership of 40% or more of the voting power of such other party would not continue to\nbeneficially own at least 40% of the voting power of the combined entity and would not have the ability to elect a majority of the directors of the\ncombined entity and the other party’s Board of Directors has recommended to such other party’s shareholders that such merger, consolidation or\nsimilar transaction be approved.\nConfidential\nPage4of5\nMUTUAL NON-DISCLOSURE AGREEMENT\nThis Agreement may be executed in counterparts or by facsimile, each of which shall be deemed an original, and all of which together shall\nconstitute one and the same agreement.\nAccepted and Agreed to by\nSybase, Inc.\nBy: /s/ Daniel R. Carl\nName: Daniel R. Carl\nTitle: Vice President, General Counsel and Secretary\nDate: April 19, 2010\nSAP AG\nBy: /s/ Werner Brandt\nBy: /s/ Michael Junge\nName: Dr. Werner Brandt\nName: Michael Junge\nTitle: CFO\nTitle: General Counsel\nDate: April 19, 2010\nDate: April 20, 2010\nConfidential\nPage5of5
+f538df53f1d7f992c8b16d2b721c9408.pdf	effective_date jurisdiction party term	EX-10.2 3 dex102.htm CONFIDENTIAL SEPARATION AGREEMENT\nExhibit 10.2\nConfidential Separation Agreement and General Release and Amendment to\nConfidentiality and Non-Disclosure Agreement\nThis Confidential Separation Agreement and General Release (hereafter “Agreement”) is entered into by and between Orthovita Inc.\n(hereafter “Orthovita” or “Company”), and Donald L. Scanlan (hereafter “Employee”). As used in this Agreement, “Company” shall include and\nencompass all of the past, present, or future parent, affiliated, related and/or subsidiary companies of Orthovita, and its past, present or future\ndirectors, shareholders, officers, employees, agents, attorneys and representatives.\nEMPLOYEE and ORTHOVITA agree to the following terms and conditions in full and final settlement of all matters in any way\nrelating to, or arising out of, EMPLOYEE’s employment and/or separation from employment with ORTHOVITA.\n1. Employee’s final day of employment with the Company will be Friday, June 15, 2007 (“Termination Date”), and Employee hereby resigns\nas of such date.\n2. Subject to Employee’s execution and nonrevocation of this Agreement and in consideration for Employee’s obligations and agreements\nhereunder, the Company will:\n(a) pay Employee a total of $218,000.00, payable as salary continuation for a period of 12 months, which is equivalent to 12\nmonths of salary continuation at Employee’s current semi-monthly salary of $9,083.33, minus all taxes and payroll\ndeductions authorized by law. These payments will commence with the Company’s next payroll period following the\nJune 15, 2007, Termination Date, provided that Employee has not revoked this Agreement prior to the Effective Date\n(hereinafter defined) of the Agreement. Amounts due under this paragraph 2(a) shall be payable in semi-monthly\ninstallments in accordance with Orthovita’s normal payroll cycle;\n(b) If EMPLOYEE chooses to continue his group medical and dental benefits under COBRA, ORTHOVITA will pay the\nCOBRA premiums for such medical/dental benefits through the twelve month period following the Agreement Date;\n(c) Orthovita will provide EMPLOYEE with a payment equal to any reasonable unreimbursed business expenses through\nJune 15, 2007 and any accrued, unused vacation days through the Agreement Termination Date; and\n(d) Orthovita acknowledges that Employee’s vested status in Orthovita’s matching contributions to Employee’s John Hancock\n401(k) Retirement Account is 66% and such vested percentage will remain intact, but that Employee’s plan account is\nvalued on a daily basis.\n(e) amend Employee’s non-compete provisions as specified in Section 3 herein below.\n3. The Company has elected to enforce against Employee his non-compete obligations provided for in Section 3 (a)—(d) of Employee’s\nConfidentiality and Non-Disclosure Agreement with the Company dated 1st of October 2004, attached hereto as Exhibit A, incorporated by\nreference and made part hereof in its entirety (“CDA”), provided that the Company and Employee agree that this Agreement amends Section 3 and\nSection 6 of the CDA, and except as explicitly stated herein, all other provisions in the CDA remain in full force and effect. Further, in the event that\nEmployee breaches the non-compete provisions of the CDA as modified hereby, the Company shall not be obligated to make the payments in\nSection 2 above. In consideration for the Company’s undertakings as described in Section 2 herein and in accordance with the provisions of this\nSection 3:\n(a) Employee agrees that upon execution of this Agreement, Employee will return all Company equipment, Company documents and\nany other Company property including all sales and marketing literature, in Employee’s possession, custody or control. Such\nCompany property includes any Company equipment and materials in Employee’s home;\n(b) Employee agrees to abide by the following Non-Compete Agreement:\n1) The “Non-Compete Ending Date” is June 15, 2008.\n2) “Competitive Areas” means bone grafting, surgical hemostasis, treatment of vertebral compression fractures, and bioactive\nstructural interbody fusion spine spacer applications.\n3) Commencing on the Employee’s June 15, 2007, Termination Date of employment with the Company, and continuing through\nand including the Non-Compete Ending Date of June 15, 2008, (the “Restriction Period”), Employee will not, without the Company’s express prior\nwritten consent, directly or indirectly own, manage, create, operate, sell, market, license, join, control, finance or participate in the ownership,\nmanagement, operation, control or financing of, or be connected as an officer, director, employee, partner, principal, agent, representative, consultant\nor otherwise with, or use or permit his name to be used in connection with, any person, business, firm, organization, enterprise or entity that\ndevelops, designs, manufactures, sells, licenses, markets or provides advice on any technologies, products or products in development in the\nCompetitive Areas (a “Competing Business”), or sell or license to, or develop for or with a Competing Business any technologies or products in the\nCompetitive Areas. Such products and technologies include, without limitation, those products and technologies which (i) the Company or any of its\ndivisions and/or subsidiaries or affiliates has developed, manufactured, sold, licensed or marketed; (ii) have been disclosed to Employee verbally or\nin writing during the course of his employment, during any consulting arrangement or as of the Termination Date as being in the process of\ndevelopment, manufacturing, selling, licensing or marketing by the Company, its divisions and/or its affiliates; and (iii) to Employee’s knowledge,\nthe Company may be in the process of developing, manufacturing, selling, licensing or marketing now or through the Restriction Period.\nIt is recognized by Employee that the business of the Company, its divisions and/or its affiliates and Employee’s connection therewith\nhas been, is or will be involved in activity throughout the world, and that more limited geographical limitations on this non-competition covenant are\ntherefore not appropriate.\nThe foregoing restrictions shall not be construed to prohibit the ownership by Employee of less than one percent of any class of\nsecurities of any corporation which is engaged in any of the foregoing businesses having a class of securities registered pursuant to the Securities\nExchange Act of 1934 (the “Exchange Act”), provided that such ownership represents a passive investment and that neither Employee nor any group\nof persons including Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees any of its\nfinancial obligations, otherwise takes any part in its business, other than exercising his rights as a shareholder, or seeks to do any of the foregoing.\n4. Employee on behalf of himself and his successors, assigns, heirs and legal representatives (“Releasors”), hereby voluntarily and knowingly\nremises, releases, acquits and forever discharges the Company and its representatives, its parent, affiliated and subsidiary corporations, and its and\ntheir predecessors, successors, affiliates, officers, directors, agents, assigns, employees, attorneys, employee benefit plans, employee benefit plan\nadministrators, and employee benefit plan fiduciaries (“Releasees”), from any and all claims, rights, expenses, debts, demands, costs, contracts,\nliabilities, obligations, actions, and causes of action of any nature, known or unknown, based upon any fact, circumstance, or event occurring or\nexisting at or prior to Employee’s execution of this Agreement, including, but not limited to, any and all matters relating to Employee’s employment\nwith the Company or the termination of that employment. This Release specifically includes, but is not limited to, any claims or actions arising out\nof or during Employee’s employment with the Company and/or separation of employment, including any claim under the Age Discrimination in\nEmployment Act (“ADEA”), 29 U.S .C. §621 et seq.; Title VII of the Civil Rights Act of 1964, 42 U.S .C. §2000e et seq.; the Americans with\nDisabilities Act, 42 U.S .C. §12101 et seq.; the Employee Retirement Income Security Act, 29 U.S .C. §1101 et seq.; 42 U.S .C. §1981 (“Section\n1981”); the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. §951 et seq.; the Pennsylvania Wage Payment and Collection Law (“WPCL”), 43\nP.S. §260.1 et seq.; the Family and Medical Leave Act (“FMLA”) and any and all other federal, state or local laws, and any common law claims now\nor hereafter recognized, as well as all claims for counsel fees and costs. The claims being waived and released include, without limitation, (a) any\nand all claims arising from or relating to Employee’s recruitment, hire, employment and termination of employment with the Company; (b) any and\nall claims of wrongful discharge, emotional distress,\ndefamation, misrepresentation, fraud, detrimental reliance, breach of contractual obligations, promissory estoppel, negligence, assault and battery,\nviolation of public policy; (c) any and all claims of unlawful discrimination, harassment and retaliation under applicable federal, state and local laws\nand regulations; (d) any and all claims of violation of any federal, state, and local law relating to recruitment, hiring, terms and conditions of\nemployment, and termination of employment; and (e) any and all claims for monetary damages and any other forms of personal relief. This Release\nis not intended to apply to claims that cannot be waived by private agreement under applicable law.\nThis release covers any claims Employee may have up to and including the date of this Agreement, but does not cover claims that arise\nafter the date of this Agreement or those relating to the enforcement of this Agreement, nor will it affect those benefits which are intended to survive\nEmployee’s termination as an Employee of the Company, such as conversion of group insurance. This Release does not amount to a waiver of any\nclaims for accrued, vested benefits under any employee benefit or pension plan of RELEASEES, subject to the terms and conditions of such plans\nand applicable law.\nEmployee acknowledges that this Agreement resolves any and all legal claims that Employee may have against the Company as of the\ndate of this Agreement, whether known or unknown.\n5. Employee represents and covenants that Employee will not communicate or disclose the terms of this Agreement to any persons other than\nany federal, state or local taxing authorities, Employee’s immediate family, Employee’s attorney or attorneys, and Employee’s accountant or\naccountants, who will be instructed by Employee to agree to be bound by the confidential nature of this Agreement. Nothing herein is intended to\nlimit Employee’s ability to disclose or discuss the tax treatment or tax structure of the payments made to Employee as necessary to address or clarify\nthe appropriate tax treatment of the payments to be made pursuant to Section 2. Employee recognizes and agrees that should it be determined, in a\ncourt of law, that Employee violated this section, Employee shall be required to refund to the Company all monies payable under this Agreement, in\naddition to any other legal or equitable relief that may be available and awarded to the Company. Nothing in this section, or elsewhere in this\nAgreement, is intended to prevent or prohibit Employee from: (i) providing information regarding Employee’s former employment relationship with\nthe Company, as may be required by law or legal process; or (ii) cooperating, participating, or assisting in any government entity investigation or\nproceeding.\n6. Employee understands and agrees that in the course of employment with the Company, Employee may have acquired confidential\ninformation and trade secrets concerning the Company’s business, its future plans and its methods of doing business, including, without limitation,\ninformation about its products, services, product development, customers, technology, financial circumstances, marketing, pricing, costs,\ncompensation and other matters (hereinafter collectively called “Trade Secrets”).\nEmployee may not reveal or disclose, sell, use, lecture upon, or publish any such Trade Secrets, or authorize anyone else to do so at any time\nsubsequent to Employee’s employment with the Company. Employee will return all copies and originals of the Company documents, files, lists and\nother information of a business nature to the Company immediately, (whether or not such includes Trade Secrets) and any future use of same by\nEmployee is prohibited.\n7. Employee and the Company mutually agree to refrain from making disparaging, defaming, derogatory, critical or negative comments\nregarding each other, the Company’s products, services or officers, directors, employees or former employees of the Company with respect to any\npast, present or future issues, except if testifying truthfully in response to a lawfully served subpoena.\n8. Neither the negotiation, undertaking or signing of this Agreement constitutes or operates as an acknowledgment or admission that the\nCompany, or any person acting on behalf of the Company, has violated or failed to comply with any provisions of federal or state constitution,\nstatute, law, regulation, municipal ordinance, or principle of common law. This agreement is made voluntarily to provide an amicable conclusion to\nEmployee’s employment relationship with the Company.\n9. Employee agrees and understands that the Company does not have, and will not have, any further obligations to provide Employee at any\ntime with any payment, benefit or consideration other than those recited in Section 2 above.\n10. Employee hereby agrees and recognizes that Employee’s employment relationship with the Company has been permanently and\nirrevocably severed as of the June 15, 2007 Termination Date and that the Company has no obligation, contractual or otherwise, to hire, rehire or re-\nemploy Employee in the future.\n11. Employee agrees that Employee shall reasonably cooperate with the Company following the Termination Date to assist with legal\nproceedings with respect to matters for which Employee was responsible during Employee’s employment with the Company.\n12. In signing this Agreement, Employee acknowledges that:\n(a) Employee has signed this Agreement voluntarily and knowingly in exchange for the consideration described herein, which Employee\nacknowledges as adequate and satisfactory.\n(b) Employee has been advised by the Company to consult with an attorney before signing this Agreement;\n(c) Employee has been given a period of at least twenty-one (21) calendar days after the date Employee received this Agreement, within\nwhich to review and consider this Agreement, to discuss it with an attorney of Employee’s own choosing, and to decide whether or not to\nsign this Agreement.\n(d) The Employee has consulted with an attorney of his own choosing during this time period.\n(e) In addition, for the period of seven (7) calendar days after the date Employee signs this Agreement (“Revocation Period”), Employee\nmay revoke it by delivering written notice of revocation to the Company by hand-delivery or by facsimile or e-mail transmission (and\nretaining proof of successful transmission) using the street, facsimile, or e-mail address to: Patricia A. Twomey, Vice President, Human\nResources, Orthovita Inc., 77 Great Valley Parkway, Malvern, PA, 610.640 .9206 (facsimile), PTwomey@Orthovita.com (email); and\n(f) Neither the Company, nor any of its employees, agents, representatives, or attorneys has made any representations to Employee\nconcerning the terms or effects of this Agreement and other than those contained herein.\n13. In the event that any one or more provisions (or portion thereof) of this Agreement is held to be invalid, unlawful, or unenforceable for any\nreason, the invalid, unlawful, or unenforceable provision (or portion thereof) shall be construed or modified so as to provide the Company and\nAffiliates with the maximum protection that is valid, lawful and enforceable, consistent with the intent of the Company and Employee in entering\ninto this Agreement. If such provision (or portion thereof) cannot be construed or modified so as to be valid, lawful and enforceable, that provision\n(or portion thereof) shall be construed as narrowly as possible and shall be severed from the remainder of the Agreement (or provision), and the\nremainder shall remain in effect and be construed as broadly as possible, as if such invalid, unlawful or unenforceable provision (or portion thereof)\nhad never been contained in this Agreement.\n14. This Agreement shall take effect on the first day following the expiration of the Revocation Period, provided this Agreement has not been\nrevoked by Employee as provided in Section 12 above during such Revocation Period (the “Effective Date”).\n15. It is agreed and understood that this Agreement contains and comprises the entire understanding of the parties and that there are no\nadditional or other promises, representations, terms or provisions other than those expressly contained herein. This Agreement shall not be modified\nexcept in writing signed by each of the parties. This Agreement supersedes all other prior agreements concerning the terms of Employee’s\nemployment with the Company, except for the CDA as amended hereby.\n16. Employee agrees to the jurisdiction of any court in the Commonwealth of Pennsylvania over all disputes, which may arise involving this\nAgreement and Employee hereby consents to the assertion of personal jurisdiction over Employee by any such Court in any such action instituted by\nthe Company pursuant to this section. This Agreement and the obligations of the parties shall be construed, interpreted and enforced in accordance\nwith the laws of Pennsylvania without regard to choice of law provisions.\nI HAVE READ THIS AGREEMENT. I UNDERSTAND THAT I AM GIVING UP IMPORTANT RIGHTS PER SECTION 4,\nABOVE. I AM AWARE OF MY RIGHT TO CONSULT WITH AN ATTORNEY OF MY OWN CHOOSING DURING THE\nCONSIDERATION PERIOD, AND THAT THE COMPANY HAS ADVISED ME TO UNDERTAKE SUCH CONSULTATION BEFORE\nSIGNING THIS AGREEMENT. I SIGN THIS AGREEMENT FREELY AND VOLUNTARILY, WITHOUT DURESS OR COERCION.\nIN WITNESS WHEREOF, and intending to be legally bound and under seal, the parties have executed the foregoing Confidentiality\nSeparation Agreement and General Release and Amendment to Confidentiality and Non-Disclosure Agreement.\nDated: June 21, 2007\nBy: /s/ Donald L. Scanlan\nORTHOVITA, INC.\nDated: June 25, 2007\nBy: /s/ Antony Koblish\nPresident & CEO\nWitness: /s/ Patricia A. Twomey	EX-10.2 3 dex102.htm CONFIDENTIAL SEPARATION AGREEMENT\nExhibit 10.2\nConfidential Separation Agreement and General Release and Amendment to\nConfidentiality and Non-Disclosure Agreement\nThis Confidential Separation Agreement and General Release (hereafter “Agreement”) is entered into by and between Orthovita Inc.\n(hereafter “Orthovita” or “Company”), and Donald L. Scanlan (hereafter “Employee”). As used in this Agreement, “Company” shall include and\nencompass all of the past, present, or future parent, affiliated, related and/or subsidiary companies of Orthovita, and its past, present or future\ndirectors, shareholders, officers, employees, agents, attorneys and representatives.\nEMPLOYEE and ORTHOVITA agree to the following terms and conditions in full and final settlement of all matters in any way\nrelating to, or arising out of, EMPLOYEE’s employment and/or separation from employment with ORTHOVITA.\n1. Employee’s final day of employment with the Company will be Friday, June 15, 2007 (“Termination Date”), and Employee hereby resigns\nas of such date.\n2. Subject to Employee’s execution and nonrevocation of this Agreement and in consideration for Employee’s obligations and agreements\nhereunder, the Company will:\n(a) pay Employee a total of $218,000.00, payable as salary continuation for a period of 12 months, which is equivalent to 12\nmonths of salary continuation at Employee’s current semi-monthly salary of $9,083.33, minus all taxes and payroll\ndeductions authorized by law. These payments will commence with the Company’s next payroll period following the\nJune 15, 2007, Termination Date, provided that Employee has not revoked this Agreement prior to the Effective Date\n(hereinafter defined) of the Agreement. Amounts due under this paragraph 2(a) shall be payable in semi-monthly\ninstallments in accordance with Orthovita’s normal payroll cycle;\n(b) If EMPLOYEE chooses to continue his group medical and dental benefits under COBRA, ORTHOVITA will pay the\nCOBRA premiums for such medical/dental benefits through the twelve month period following the Agreement Date;\n(c) Orthovita will provide EMPLOYEE with a payment equal to any reasonable unreimbursed business expenses through\nJune 15, 2007 and any accrued, unused vacation days through the Agreement Termination Date; and\n(d) Orthovita acknowledges that Employee’s vested status in Orthovita’s matching contributions to Employee’s John Hancock\n401(k) Retirement Account is 66% and such vested percentage will remain intact, but that Employee’s plan account is\nvalued on a daily basis.\n(e) amend Employee’s non-compete provisions as specified in Section 3 herein below.\n3. The Company has elected to enforce against Employee his non-compete obligations provided for in Section 3 (a)—(d) of Employee’s\nConfidentiality and Non-Disclosure Agreement with the Company dated 15t of October 2004, attached hereto as Exhibit A, incorporated by\nreference and made part hereof in its entirety (“CDA”), provided that the Company and Employee agree that this Agreement amends Section 3 and\nSection 6 of the CDA, and except as explicitly stated herein, all other provisions in the CDA remain in full force and effect. Further, in the event that\nEmployee breaches the non-compete provisions of the CDA as modified hereby, the Company shall not be obligated to make the payments in\nSection 2 above. In consideration for the Company’s undertakings as described in Section 2 herein and in accordance with the provisions of this\nSection 3:\n(a) Employee agrees that upon execution of this Agreement, Employee will return all Company equipment, Company documents and\nany other Company property including all sales and marketing literature, in Employee’s possession, custody or control. Such\nCompany property includes any Company equipment and materials in Employee’s home;\n(b)  Employee agrees to abide by the following Non-Compete Agreement:\n1) The “Non-Compete Ending Date” is June 15, 2008.\n2) “Competitive Areas” means bone grafting, surgical hemostasis, treatment of vertebral compression fractures, and bioactive\nstructural interbody fusion spine spacer applications.\n3) Commencing on the Employee’s June 15, 2007, Termination Date of employment with the Company, and continuing through\nand including the Non-Compete Ending Date of June 15, 2008, (the “Restriction Period”), Employee will not, without the Company’s express prior\nwritten consent, directly or indirectly own, manage, create, operate, sell, market, license, join, control, finance or participate in the ownership,\nmanagement, operation, control or financing of, or be connected as an officer, director, employee, partner, principal, agent, representative, consultant\nor otherwise with, or use or permit his name to be used in connection with, any person, business, firm, organization, enterprise or entity that\ndevelops, designs, manufactures, sells, licenses, markets or provides advice on any technologies, products or products in development in the\nCompetitive Areas (a “Competing Business™), or sell or license to, or develop for or with a Competing Business any technologies or products in the\nCompetitive Areas. Such products and technologies include, without limitation, those products and technologies which (i) the Company or any of its\ndivisions and/or subsidiaries or affiliates has developed, manufactured, sold, licensed or marketed; (ii) have been disclosed to Employee verbally or\nin writing during the course of his employment, during any consulting arrangement or as of the Termination Date as being in the process of\ndevelopment, manufacturing, selling, licensing or marketing by the Company, its divisions and/or its affiliates; and (iii) to Employee’s knowledge,\nthe Company may be in the process of developing, manufacturing, selling, licensing or marketing now or through the Restriction Period.\nIt is recognized by Employee that the business of the Company, its divisions and/or its affiliates and Employee’s connection therewith\nhas been, is or will be involved in activity throughout the world, and that more limited geographical limitations on this non-competition covenant are\ntherefore not appropriate.\nThe foregoing restrictions shall not be construed to prohibit the ownership by Employee of less than one percent of any class of\nsecurities of any corporation which is engaged in any of the foregoing businesses having a class of securities registered pursuant to the Securities\nExchange Act of 1934 (the “Exchange Act”), provided that such ownership represents a passive investment and that neither Employee nor any group\nof persons including Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees any of its\nfinancial obligations, otherwise takes any part in its business, other than exercising his rights as a shareholder, or seeks to do any of the foregoing.\n4. Employee on behalf of himself and his successors, assigns, heirs and legal representatives (“Releasors”), hereby voluntarily and knowingly\nremises, releases, acquits and forever discharges the Company and its representatives, its parent, affiliated and subsidiary corporations, and its and\ntheir predecessors, successors, affiliates, officers, directors, agents, assigns, employees, attorneys, employee benefit plans, employee benefit plan\nadministrators, and employee benefit plan fiduciaries (“Releasees”), from any and all claims, rights, expenses, debts, demands, costs, contracts,\nliabilities, obligations, actions, and causes of action of any nature, known or unknown, based upon any fact, circumstance, or event occurring or\nexisting at or prior to Employee’s execution of this Agreement, including, but not limited to, any and all matters relating to Employee’s employment\nwith the Company or the termination of that employment. This Release specifically includes, but is not limited to, any claims or actions arising out\nof or during Employee’s employment with the Company and/or separation of employment, including any claim under the Age Discrimination in\nEmployment Act (“ADEA™), 29 U.S.C. §621 et seq.; Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq.; the Americans with\nDisabilities Act, 42 U.S.C. §12101 et seq.; the Employee Retirement Income Security Act, 29 U.S.C. §1101 et seq.; 42 U.S.C. §1981 (“Section\n1981”); the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. §951 et seq.; the Pennsylvania Wage Payment and Collection Law (“WPCL”), 43\nP.S. §260.1 et seq.; the Family and Medical Leave Act (“FMLA”) and any and all other federal, state or local laws, and any common law claims now\nor hereafter recognized, as well as all claims for counsel fees and costs. The claims being waived and released include, without limitation, (a) any\nand all claims arising from or relating to Employee’s recruitment, hire, employment and termination of employment with the Company; (b) any and\nall claims of wrongful discharge, emotional distress,\ndefamation, misrepresentation, fraud, detrimental reliance, breach of contractual obligations, promissory estoppel, negligence, assault and battery,\nviolation of public policy; (c) any and all claims of unlawful discrimination, harassment and retaliation under applicable federal, state and local laws\nand regulations; (d) any and all claims of violation of any federal, state, and local law relating to recruitment, hiring, terms and conditions of\nemployment, and termination of employment; and (e) any and all claims for monetary damages and any other forms of personal relief. This Release\nis not intended to apply to claims that cannot be waived by private agreement under applicable law.\nThis release covers any claims Employee may have up to and including the date of this Agreement, but does not cover claims that arise\nafter the date of this Agreement or those relating to the enforcement of this Agreement, nor will it affect those benefits which are intended to survive\nEmployee’s termination as an Employee of the Company, such as conversion of group insurance. This Release does not amount to a waiver of any\nclaims for accrued, vested benefits under any employee benefit or pension plan of RELEASEES, subject to the terms and conditions of such plans\nand applicable law.\nEmployee acknowledges that this Agreement resolves any and all legal claims that Employee may have against the Company as of the\ndate of this Agreement, whether known or unknown.\n5. Employee represents and covenants that Employee will not communicate or disclose the terms of this Agreement to any persons other than\nany federal, state or local taxing authorities, Employee’s immediate family, Employee’s attorney or attorneys, and Employee’s accountant or\naccountants, who will be instructed by Employee to agree to be bound by the confidential nature of this Agreement. Nothing herein is intended to\nlimit Employee’s ability to disclose or discuss the tax treatment or tax structure of the payments made to Employee as necessary to address or clarify\nthe appropriate tax treatment of the payments to be made pursuant to Section 2. Employee recognizes and agrees that should it be determined, in a\ncourt of law, that Employee violated this section, Employee shall be required to refund to the Company all monies payable under this Agreement, in\naddition to any other legal or equitable relief that may be available and awarded to the Company. Nothing in this section, or elsewhere in this\nAgreement, is intended to prevent or prohibit Employee from: (i) providing information regarding Employee’s former employment relationship with\nthe Company, as may be required by law or legal process; or (ii) cooperating, participating, or assisting in any government entity investigation or\nproceeding.\n6. Employee understands and agrees that in the course of employment with the Company, Employee may have acquired confidential\ninformation and trade secrets concerning the Company’s business, its future plans and its methods of doing business, including, without limitation,\ninformation about its products, services, product development, customers, technology, financial circumstances, marketing, pricing, costs,\ncompensation and other matters (hereinafter collectively called “Trade Secrets”).\nEmployee may not reveal or disclose, sell, use, lecture upon, or publish any such Trade Secrets, or authorize anyone else to do so at any time\nsubsequent to Employee’s employment with the Company. Employee will return all copies and originals of the Company documents, files, lists and\nother information of a business nature to the Company immediately, (whether or not such includes Trade Secrets) and any future use of same by\nEmployee is prohibited.\n7. Employee and the Company mutually agree to refrain from making disparaging, defaming, derogatory, critical or negative comments\nregarding each other, the Company’s products, services or officers, directors, employees or former employees of the Company with respect to any\npast, present or future issues, except if testifying truthfully in response to a lawfully served subpoena.\n8. Neither the negotiation, undertaking or signing of this Agreement constitutes or operates as an acknowledgment or admission that the\nCompany, or any person acting on behalf of the Company, has violated or failed to comply with any provisions of federal or state constitution,\nstatute, law, regulation, municipal ordinance, or principle of common law. This agreement is made voluntarily to provide an amicable conclusion to\nEmployee’s employment relationship with the Company.\n9. Employee agrees and understands that the Company does not have, and will not have, any further obligations to provide Employee at any\ntime with any payment, benefit or consideration other than those recited in Section 2 above.\n10. Employee hereby agrees and recognizes that Employee’s employment relationship with the Company has been permanently and\nirrevocably severed as of the June 15, 2007 Termination Date and that the Company has no obligation, contractual or otherwise, to hire, rehire or re-\nemploy Employee in the future.\n11. Employee agrees that Employee shall reasonably cooperate with the Company following the Termination Date to assist with legal\nproceedings with respect to matters for which Employee was responsible during Employee’s employment with the Company.\n12. In signing this Agreement, Employee acknowledges that:\n(a) Employee has signed this Agreement voluntarily and knowingly in exchange for the consideration described herein, which Employee\nacknowledges as adequate and satisfactory.\n(b) Employee has been advised by the Company to consult with an attorney before signing this Agreement;\n(c) Employee has been given a period of at least twenty-one (21) calendar days after the date Employee received this Agreement, within\nwhich to review and consider this Agreement, to discuss it with an attorney of Employee’s own choosing, and to decide whether or not to\nsign this Agreement.\n(d) The Employee has consulted with an attorney of his own choosing during this time period.\n(e) In addition, for the period of seven (7) calendar days after the date Employee signs this Agreement (“Revocation Period”), Employee\nmay revoke it by delivering written notice of revocation to the Company by hand-delivery or by facsimile or e-mail transmission (and\nretaining proof of successful transmission) using the street, facsimile, or e-mail address to: Patricia A. Twomey, Vice President, Human\nResources, Orthovita Inc., 77 Great Valley Parkway, Malvern, PA, 610.640.9206 (facsimile), PTwomey@0Orthovita.com (email); and\n(f) Neither the Company, nor any of its employees, agents, representatives, or attorneys has made any representations to Employee\nconcerning the terms or effects of this Agreement and other than those contained herein.\n13. In the event that any one or more provisions (or portion thereof) of this Agreement is held to be invalid, unlawful, or unenforceable for any\nreason, the invalid, unlawful, or unenforceable provision (or portion thereof) shall be construed or modified so as to provide the Company and\nAffiliates with the maximum protection that is valid, lawful and enforceable, consistent with the intent of the Company and Employee in entering\ninto this Agreement. If such provision (or portion thereof) cannot be construed or modified so as to be valid, lawful and enforceable, that provision\n(or portion thereof) shall be construed as narrowly as possible and shall be severed from the remainder of the Agreement (or provision), and the\nremainder shall remain in effect and be construed as broadly as possible, as if such invalid, unlawful or unenforceable provision (or portion thereof)\nhad never been contained in this Agreement.\n14. This Agreement shall take effect on the first day following the expiration of the Revocation Period, provided this Agreement has not been\nrevoked by Employee as provided in Section 12 above during such Revocation Period (the “Effective Date”).\n15. It is agreed and understood that this Agreement contains and comprises the entire understanding of the parties and that there are no\nadditional or other promises, representations, terms or provisions other than those expressly contained herein. This Agreement shall not be modified\nexcept in writing signed by each of the parties. This Agreement supersedes all other prior agreements concerning the terms of Employee’s\nemployment with the Company, except for the CDA as amended hereby.\n16. Employee agrees to the jurisdiction of any court in the Commonwealth of Pennsylvania over all disputes, which may arise involving this\nAgreement and Employee hereby consents to the assertion of personal jurisdiction over Employee by any such Court in any such action instituted by\nthe Company pursuant to this section. This Agreement and the obligations of the parties shall be construed, interpreted and enforced in accordance\nwith the laws of Pennsylvania without regard to choice of law provisions.\nI HAVE READ THIS AGREEMENT. I UNDERSTAND THAT I AM GIVING UP IMPORTANT RIGHTS PER SECTION 4,\nABOVE. I AM AWARE OF MY RIGHT TO CONSULT WITH AN ATTORNEY OF MY OWN CHOOSING DURING THE\nCONSIDERATION PERIOD, AND THAT THE COMPANY HAS ADVISED ME TO UNDERTAKE SUCH CONSULTATION BEFORE\nSIGNING THIS AGREEMENT. I SIGN THIS AGREEMENT FREELY AND VOLUNTARILY, WITHOUT DURESS OR COERCION.\nIN WITNESS WHEREOF, and intending to be legally bound and under seal, the parties have executed the foregoing Confidentiality\nSeparation Agreement and General Release and Amendment to Confidentiality and Non-Disclosure Agreement.\nDated: June 21, 2007\nBy: /s/ Donald L. Scanlan\nORTHOVITA, INC.\nDated: June 25, 2007\nBy: /s/ Antony Koblish\nPresident & CEO\nWitness: /s/ Patricia A. Twomey	EX-10.2 3 dex102.htm CONFIDENTIAL SEPARATION AGREEMENT\nExhibit 10.2\nConfidential Separation Agreement and General Release and Amendment to\nConfidentiality and Non-Disclosure Agreement\nThis Confidential Separation Agreement and General Release (hereafter "Agreement") is entered into by and between Orthovita\nInc.\n(hereafter "Orthovita" or "Company"), and Donald L. Scanlan (hereafter "Employee"). As used in this Agreement, "Company" shall include and\nencompass all of the past, present, or future parent, affiliated, related and/or subsidiary companies of Orthovita, and its past, present or future\ndirectors, shareholders, officers, employees, agents, attorneys and representatives.\nEMPLOYEE and ORTHOVITA agree to the following terms and conditions in full and final settlement of all matters in any way\nrelating to, or arising out of, EMPLOYEE'S employment and/or separation from employment with ORTHOVITA.\n1. Employee's final day of employment with the Company will be Friday, June 15, 2007 ("Termination Date"), and Employee hereby\nresigns\nas of such date.\n2. Subject to Employee's execution and nonrevocation of this Agreement and in consideration for Employee's obligations and agreements\nhereunder, the Company will:\n(a) pay Employee a total of $218,000.00, payable as salary continuation for a period of 12 months, which is equivalent to 12\nmonths of salary continuation at Employee's current semi-monthly salary of $9,083.33, minus all taxes and payroll\ndeductions authorized by law. These payments will commence with the Company's next payroll period following the\nJune 15, 2007, Termination Date, provided that Employee has not revoked this Agreement prior to the Effective Date\n(hereinafter defined) of the Agreement. Amounts due under this paragraph 2(a) shall be payable in semi-monthly\ninstallments in accordance with Orthovita's normal payroll cycle;\n(b) If EMPLOYEE chooses to continue his group medical and dental benefits under COBRA, ORTHOVITA will pay the\nCOBRA premiums for such medical/dental benefits through the twelve month period following the Agreement Date;\n(c)\nOrthovita will provide EMPLOYEE with a payment equal to any reasonable unreimbursed business expenses through\nJune 15, 2007 and any accrued, unused vacation days through the Agreement Termination Date; and\n(d) Orthovita acknowledges that Employee's vested status in Orthovita's matching contributions to Employee's John Hancock\n401(k) Retirement Account is 66% and such vested percentage will remain intact, but that Employee's plan account is\nvalued on a daily basis.\n(e)\namend Employee's non-compete provisions as specified in Section 3 herein below.\n3. The Company has elected to enforce against Employee his non-compete obligations provided for in Section 3 (a)-(d) of Employee's\nConfidentiality and Non-Disclosure Agreement with the Company dated 1st of October 2004, attached hereto as Exhibit A, incorporated by\nreference and made part hereof in its entirety ("CDA"), provided that the Company and Employee agree that this Agreement amends Section 3 and\nSection 6 of the CDA, and except as explicitly stated herein, all other provisions in the CDA remain in full force and effect. Further, in the event that\nEmployee breaches the non-compete provisions of the CDA as modified hereby, the Company shall not be obligated to make the payments in\nSection 2 above. In consideration for the Company's undertakings as described in Section 2 herein and in accordance with the provisions of this\nSection 3:\n(a)\nEmployee agrees that upon execution of this Agreement, Employee will return all Company equipment, Company documents and\nany other Company property including all sales and marketing literature, in Employee's possession, custody or control. Such\nCompany property includes any Company equipment and materials in Employee's home;\n(b)\nEmployee agrees to abide by the following Non-Compete Agreement:\n1) The "Non-Compete Ending Date" is June 15, 2008.\n2) "Competitive Areas" means bone grafting, surgical hemostasis, treatment of vertebral compression fractures, and bioactive\nstructural interbody fusion spine spacer applications.\n3) Commencing on the Employee's June 15, 2007, Termination Date of employment with the Company, and continuing through\nand including the Non-Compete Ending Date of June 15, 2008, (the "Restriction Period"), Employee will not, without the Company's express prior\nwritten consent, directly or indirectly own, manage, create, operate, sell, market, license, join, control, finance or participate in the ownership,\nmanagement, operation, control or financing of, or be connected as an officer, director, employee, partner, principal, agent, representative, consultant\nor otherwise with, or use or permit his name to be used in connection with, any person, business, firm, organization, enterprise or entity that\ndevelops, designs, manufactures, sells, licenses, markets or provides advice on any technologies, products or products in development in the\nCompetitive Areas (a "Competing Business"), or sell or license to, or develop for or with a Competing Business any technologies or products in the\nCompetitive Areas. Such products and technologies include, without limitation, those products and technologies which (i) the Company or any of its\ndivisions and/or subsidiaries or affiliates has developed, manufactured, sold, licensed or marketed; (ii) have been disclosed to Employee verbally or\nin writing during the course of his employment, during any consulting arrangement or as of the Termination Date as being in the process of\ndevelopment, manufacturing, selling, licensing or marketing by the Company, its divisions and/or its affiliates; and (iii) to Employee's knowledge,\nthe Company may be in the process of developing, manufacturing, selling, licensing or marketing now or through the Restriction Period.\nIt is recognized by Employee that the business of the Company, its divisions and/or its affiliates and Employee's connection therewith\nhas been, is or will be involved in activity throughout the world, and that more limited geographical limitations on this non-competition covenant are\ntherefore not appropriate.\nThe foregoing restrictions shall not be construed to prohibit the ownership by Employee of less than one percent of any class of\nsecurities of any corporation which is engaged in any of the foregoing businesses having a class of securities registered pursuant to the Securities\nExchange Act of 1934 (the "Exchange Act"), provided that such ownership represents a passive investment and that neither Employee nor any group\nof persons including Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees any of its\nfinancial obligations, otherwise takes any part in its business, other than exercising his rights as a shareholder, or seeks to do any of the foregoing.\n4. Employee on behalf of himself and his successors, assigns, heirs and legal representatives ("Releasors"), hereby voluntarily and knowingly\nremises, releases, acquits and forever discharges the Company and its representatives, its parent, affiliated and subsidiary corporations, and its and\ntheir predecessors, successors, affiliates, officers, directors, agents, assigns, employees, attorneys, employee benefit plans, employee benefit plan\nadministrators, and employee benefit plan fiduciaries ("Releasees"), from any and all claims, rights, expenses, debts, demands, costs, contracts,\nliabilities, obligations, actions, and causes of action of any nature, known or unknown, based upon any fact, circumstance, or event occurring\nor\nexisting\nat\nor\nprior\nto\nEmployee's\nexecution\nof\nthis\nAgreement,\nincluding,\nbut\nnot\nlimited\nto,\nany\nand\nall\nmatters\nrelating\nto\nEmployee's\nemployment\nwith the Company or the termination of that employment. This Release specifically includes, but is not limited to, any claims or actions arising out\nof or during Employee's employment with the Company and/or separation of employment, including any claim under the Age Discrimination\nin\nEmployment Act ("ADEA"), 29 U.S.C. $621 et see; Title VII of the Civil Rights Act of 1964, 42 U.S.C. 82000e et sege; the Americans with\nDisabilities Act, 42 U.S.C. 12101 et seqe; the Employee Retirement Income Security Act, 29 U.S.C. 81101 et seq.; 42 U.S.C. 1981 ("Section\n1981"); the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. 8951 et seq.; the Pennsylvania Wage Payment and Collection Law ("WPCL"), 43\nP.S. 8260.1 et seg:; the Family and Medical Leave Act ("FMLA") and any and all other federal, state or local laws, and any common law claims now\nor hereafter recognized, as well as all claims for counsel fees and costs. The claims being waived and released include, without limitation, (a) any\nand all claims arising from or relating to Employee's recruitment, hire, employment and termination of employment with the Company; (b) any and\nall claims of wrongful discharge, emotional distress,\ndefamation, misrepresentation, fraud, detrimental reliance, breach of contractua obligations, promissory estoppel, negligence, assault and battery,\nviolation of public policy; (c) any and all claims of unlawful discrimination, harassment and retaliation under applicable federal, state and local laws\nand regulations; (d) any and all claims of violation of any federal, state, and local law relating to recruitment, hiring, terms and conditions of\nemployment, and termination of employment; and (e) any and all claims for monetary damages and any other forms of personal relief. This Release\nis not intended to apply to claims that cannot be waived by private agreement under applicable law.\nThis release covers any claims Employee may have up to and including the date of this Agreement, but does not cover claims that arise\nafter the date of this Agreement or those relating to the enforcement of this Agreement, nor will it affect those benefits which are intended to survive\nEmployee's termination as an Employee of the Company, such as conversion of group insurance. This Release does not amount to a waiver of any\nclaims for accrued, vested benefits under any employee benefit or pension plan of RELEASEES, subject to the terms and conditions of such plans\nand applicable law.\nEmployee acknowledges that this Agreement resolves any and all legal claims that Employee may have against the Company as of the\ndate of this Agreement, whether known or unknown.\n5. Employee represents and covenants that Employee will not communicate or disclose the terms of this Agreement to any persons other than\nany federal, state or local taxing authorities, Employee's immediate family, Employee's attorney or attorneys, and Employee's accountant or\naccountants, who will be instructed by Employee to agree to be bound by the confidential nature of this Agreement. Nothing herein is intended to\nlimit Employee's ability to disclose or discuss the tax treatment or tax structure of the payments made to Employee as necessary to address or clarify\nthe appropriate tax treatment of the payments to be made pursuant to Section 2. Employee recognizes and agrees that should it be determined,\nin\na\ncourt of law, that Employee violated this section, Employee shall be required to refund to the Company all monies payable under this Agreement, in\naddition to any other legal or equitable relief that may be available and awarded to the Company. Nothing in this section, or elsewhere in this\nAgreement, is intended to prevent or prohibit Employee from: (i) providing information regarding Employee's former employment relationship with\nthe Company, as may be required by law or legal process; or (ii) cooperating, participating, or assisting in any government entity investigation or\nproceeding.\n6.\nEmployee understands and agrees that in the course of employment with the Company, Employee may have acquired confidential\ninformation and trade secrets concerning the Company's business, its future plans and its methods of doing business, including, without limitation,\ninformation about its products, services, product development, customers, technology, financial circumstances, marketing, pricing, costs,\ncompensation and other matters (hereinafter collectively called "Trade Secrets").\nEmployee may not reveal or disclose, sell, use, lecture upon, or publish any such Trade Secrets, or authorize anyone else to do so at any time\nsubsequent to Employee's employment with the Company. Employee will return all copies and originals of the Company documents, files, lists and\nother information of a business nature to the Company immediately, (whether or not such includes Trade Secrets) and any future use of same\nby\nEmployee is prohibited.\n7. Employee and the Company mutually agree to refrain from making disparaging, defaming, derogatory, critical or negative comments\nregarding each other, the Company's products, services or officers, directors, employees or former employees of the Company with respect to any\npast, present or future issues, except if testifying truthfully in response to a lawfully served subpoena.\n8. Neither the negotiation, undertaking or signing of this Agreement constitutes or operates as an acknowledgment or admission that the\nCompany, or any person acting on behalf of the Company, has violated or failed to comply with any provisions of federal or state constitution,\nstatute, law, regulation, municipal ordinance, or principle of common law. This agreement is made voluntarily to provide an amicable conclusion\nto\nEmployee's employment relationship with the Company.\n9. Employee agrees and understands that the Company does not have, and will not have, any further obligations to provide Employee at any\ntime with any payment, benefit or consideration other than those recited in Section 2 above.\n10. Employee hereby agrees and recognizes that Employee's employment relationship with the Company has been permanently and\nirrevocably severed as of the June 15, 2007 Termination Date and that the Company has no obligation, contractual or otherwise, to hire, rehire or re-\nemploy Employee in the future.\n11. Employee agrees that Employee shall reasonably cooperate with the Company following the Termination Date to assist with legal\nproceedings with respect to matters for which Employee was responsible during Employee's employment with the Company.\n12. In signing this Agreement, Employee acknowledges that:\n(a) Employee has signed this Agreement voluntarily and knowingly in exchange for the consideration described herein, which Employee\nacknowledges as adequate and satisfactory.\n(b) Employee has been advised by the Company to consult with an attorney before signing this Agreement;\n(c) Employee has been given a period of at least twenty-one (21) calendar days after the date Employee received this Agreement, within\nwhich to review and consider this Agreement, to discuss it with an attorney of Employee's own choosing, and to decide whether or not to\nsign this Agreement.\n(d) The Employee has consulted with an attorney of his own choosing during this time period.\n(e) In addition, for the period of seven (7) calendar days after the date Employee signs this Agreement ("Revocation Period"), Employee\nmay revoke it by delivering written notice of revocation to the Company by hand-delivery or by facsimile or e-mail transmission (and\nretaining proof of successful transmission) using the street, facsimile, or e-mail address to: Patricia A. Twomey, Vice President, Human\nResources, Orthovita Inc., 77 Great Valley Parkway, Malvern, PA, 610.640.9206 (facsimile), PTwomey@Orthovita.com (email); and\n(f) Neither the Company, nor any of its employees, agents, representatives, or attorneys has made any representations to Employee\nconcerning the terms or effects of this Agreement and other than those contained herein.\n13. In the event that any one or more provisions (or portion thereof) of this Agreement is held to be invalid, unlawful, or unenforceable for any\nreason, the invalid, unlawful, or unenforceable provision (or portion thereof) shall be construed or modified so as to provide the Company and\nAffiliates with the maximum protection that is valid, lawful and enforceable, consistent with the intent of the Company and Employee in entering\ninto this Agreement. If such provision (or portion thereof) cannot be construed or modified so as to be valid, lawful and enforceable, that provision\n(or portion thereof) shall be construed as narrowly as possible and shall be severed from the remainder of the Agreement (or provision), and the\nremainder shall remain in effect and be construed as broadly as possible, as if such invalid, unlawful or unenforceable provision (or portion thereof)\nhad never been contained in this Agreement.\n14. This Agreement shall take effect on the first day following the expiration of the Revocation Period, provided this Agreement has not been\nrevoked by Employee as provided in Section 12 above during such Revocation Period (the "Effective Date").\n15. It is agreed and understood that this Agreement contains and comprises the entire understanding of the parties and that there are no\nadditional or other promises, representations, terms or provisions other than those expressly contained herein. This Agreement shall not be modified\nexcept in writing signed by each of the parties. This Agreement supersedes all other prior agreements concerning the terms of Employee's\nemployment with the Company, except for the CDA as amended hereby.\n16. Employee agrees to the jurisdiction of any court in the Commonwealth of Pennsylvania over all disputes, which may arise involving this\nAgreement and Employee hereby consents to the assertion of personal jurisdiction over Employee by any such Court in any such action instituted by\nthe Company pursuant to this section. This Agreement and the obligations of the parties shall be construed, interpreted and enforced in accordance\nwith the laws of Pennsylvania without regard to choice of law provisions.\nI HAVE READ THIS AGREEMENT. I UNDERSTAND THAT I AM GIVING UP IMPORTANT RIGHTS PER SECTION 4,\nABOVE. I AM AWARE OF MY RIGHT TO CONSULT WITH AN ATTORNEY OF MY OWN CHOOSING DURING THE\nCONSIDERATION PERIOD, AND THAT THE COMPANY HAS ADVISED ME TO UNDERTAKE SUCH CONSULTATION BEFORE\nSIGNING THIS AGREEMENT. I SIGN THIS AGREEMENT FREELY AND VOLUNTARILY, WITHOUT DURESS OR COERCION.\nIN WITNESS WHEREOF, and intending to be legally bound and under seal, the parties have executed the foregoing Confidentiality\nSeparation Agreement and General Release and Amendment to Confidentiality and Non-Disclosure Agreement.\nDated: June 21, 2007\nBy: /s/ Donald L. Scanlan\nORTHOVITA, INC.\nDated: June 25, 2007\nBy: /s/ Antony Koblish\nPresident & CEO\nWitness: /s/ Patricia A. Twomey	EX-10.2 3 dex102.htm CONFIDENTIAL SEPARATION AGREEMENT\nExhibit 10.2\nConfidential Separation Agreement and General Release and Amendment to\nConfidentiality and Non-Disclosure Agreement\nThis Confidential Separation Agreement and General Release (hereafter “Agreement”) is entered into by and between Orthovita Inc.\n(hereafter “Orthovita” or “Company”), and Donald L. Scanlan (hereafter “Employee”). As used in this Agreement, “Company” shall include and\nencompass all of the past, present, or future parent, affiliated, related and/or subsidiary companies of Orthovita, and its past, present or future\ndirectors, shareholders, officers, employees, agents, attorneys and representatives.\nEMPLOYEE and ORTHOVITA agree to the following terms and conditions in full and final settlement of all matters in any way\nrelating to, or arising out of, EMPLOYEE’s employment and/or separation from employment with ORTHOVITA.\n1. Employee’s final day of employment with the Company will be Friday, June 15, 2007 (“Termination Date”), and Employee hereby resigns\nas of such date.\n2. Subject to Employee’s execution and nonrevocation of this Agreement and in consideration for Employee’s obligations and agreements\nhereunder, the Company will:\n(a) pay Employee a total of $218,000.00, payable as salary continuation for a period of 12 months, which is equivalent to 12\nmonths of salary continuation at Employee’s current semi-monthly salary of $9,083.33, minus all taxes and payroll\ndeductions authorized by law. These payments will commence with the Company’s next payroll period following the\nJune 15, 2007, Termination Date, provided that Employee has not revoked this Agreement prior to the Effective Date\n(hereinafter defined) of the Agreement. Amounts due under this paragraph 2(a) shall be payable in semi-monthly\ninstallments in accordance with Orthovita’s normal payroll cycle;\n(b) If EMPLOYEE chooses to continue his group medical and dental benefits under COBRA, ORTHOVITA will pay the\nCOBRA premiums for such medical/dental benefits through the twelve month period following the Agreement Date;\n(c) Orthovita will provide EMPLOYEE with a payment equal to any reasonable unreimbursed business expenses through\nJune 15, 2007 and any accrued, unused vacation days through the Agreement Termination Date; and\n(d) Orthovita acknowledges that Employee’s vested status in Orthovita’s matching contributions to Employee’s John Hancock\n401(k) Retirement Account is 66% and such vested percentage will remain intact, but that Employee’s plan account is\nvalued on a daily basis.\n(e) amend Employee’s non-compete provisions as specified in Section 3 herein below.\n3. The Company has elected to enforce against Employee his non-compete obligations provided for in Section 3 (a)—(d) of Employee’s\nConfidentiality and Non-Disclosure Agreement with the Company dated 1st of October 2004, attached hereto as Exhibit A, incorporated by\nreference and made part hereof in its entirety (“CDA”), provided that the Company and Employee agree that this Agreement amends Section 3 and\nSection 6 of the CDA, and except as explicitly stated herein, all other provisions in the CDA remain in full force and effect. Further, in the event that\nEmployee breaches the non-compete provisions of the CDA as modified hereby, the Company shall not be obligated to make the payments in\nSection 2 above. In consideration for the Company’s undertakings as described in Section 2 herein and in accordance with the provisions of this\nSection 3:\n(a) Employee agrees that upon execution of this Agreement, Employee will return all Company equipment, Company documents and\nany other Company property including all sales and marketing literature, in Employee’s possession, custody or control. Such\nCompany property includes any Company equipment and materials in Employee’s home;\n(b) Employee agrees to abide by the following Non-Compete Agreement:\n1) The “Non-Compete Ending Date” is June 15, 2008.\n2) “Competitive Areas” means bone grafting, surgical hemostasis, treatment of vertebral compression fractures, and bioactive\nstructural interbody fusion spine spacer applications.\n3) Commencing on the Employee’s June 15, 2007, Termination Date of employment with the Company, and continuing through\nand including the Non-Compete Ending Date of June 15, 2008, (the “Restriction Period”), Employee will not, without the Company’s express prior\nwritten consent, directly or indirectly own, manage, create, operate, sell, market, license, join, control, finance or participate in the ownership,\nmanagement, operation, control or financing of, or be connected as an officer, director, employee, partner, principal, agent, representative, consultant\nor otherwise with, or use or permit his name to be used in connection with, any person, business, firm, organization, enterprise or entity that\ndevelops, designs, manufactures, sells, licenses, markets or provides advice on any technologies, products or products in development in the\nCompetitive Areas (a “Competing Business”), or sell or license to, or develop for or with a Competing Business any technologies or products in the\nCompetitive Areas. Such products and technologies include, without limitation, those products and technologies which (i) the Company or any of its\ndivisions and/or subsidiaries or affiliates has developed, manufactured, sold, licensed or marketed; (ii) have been disclosed to Employee verbally or\nin writing during the course of his employment, during any consulting arrangement or as of the Termination Date as being in the process of\ndevelopment, manufacturing, selling, licensing or marketing by the Company, its divisions and/or its affiliates; and (iii) to Employee’s knowledge,\nthe Company may be in the process of developing, manufacturing, selling, licensing or marketing now or through the Restriction Period.\nIt is recognized by Employee that the business of the Company, its divisions and/or its affiliates and Employee’s connection therewith\nhas been, is or will be involved in activity throughout the world, and that more limited geographical limitations on this non-competition covenant are\ntherefore not appropriate.\nThe foregoing restrictions shall not be construed to prohibit the ownership by Employee of less than one percent of any class of\nsecurities of any corporation which is engaged in any of the foregoing businesses having a class of securities registered pursuant to the Securities\nExchange Act of 1934 (the “Exchange Act”), provided that such ownership represents a passive investment and that neither Employee nor any group\nof persons including Employee in any way, either directly or indirectly, manages or exercises control of any such corporation, guarantees any of its\nfinancial obligations, otherwise takes any part in its business, other than exercising his rights as a shareholder, or seeks to do any of the foregoing.\n4. Employee on behalf of himself and his successors, assigns, heirs and legal representatives (“Releasors”), hereby voluntarily and knowingly\nremises, releases, acquits and forever discharges the Company and its representatives, its parent, affiliated and subsidiary corporations, and its and\ntheir predecessors, successors, affiliates, officers, directors, agents, assigns, employees, attorneys, employee benefit plans, employee benefit plan\nadministrators, and employee benefit plan fiduciaries (“Releasees”), from any and all claims, rights, expenses, debts, demands, costs, contracts,\nliabilities, obligations, actions, and causes of action of any nature, known or unknown, based upon any fact, circumstance, or event occurring or\nexisting at or prior to Employee’s execution of this Agreement, including, but not limited to, any and all matters relating to Employee’s employment\nwith the Company or the termination of that employment. This Release specifically includes, but is not limited to, any claims or actions arising out\nof or during Employee’s employment with the Company and/or separation of employment, including any claim under the Age Discrimination in\nEmployment Act (“ADEA”), 29 U.S .C. §621 et seq.; Title VII of the Civil Rights Act of 1964, 42 U.S .C. §2000e et seq.; the Americans with\nDisabilities Act, 42 U.S .C. §12101 et seq.; the Employee Retirement Income Security Act, 29 U.S .C. §1101 et seq.; 42 U.S .C. §1981 (“Section\n1981”); the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. §951 et seq.; the Pennsylvania Wage Payment and Collection Law (“WPCL”), 43\nP.S. §260.1 et seq.; the Family and Medical Leave Act (“FMLA”) and any and all other federal, state or local laws, and any common law claims now\nor hereafter recognized, as well as all claims for counsel fees and costs. The claims being waived and released include, without limitation, (a) any\nand all claims arising from or relating to Employee’s recruitment, hire, employment and termination of employment with the Company; (b) any and\nall claims of wrongful discharge, emotional distress,\ndefamation, misrepresentation, fraud, detrimental reliance, breach of contractual obligations, promissory estoppel, negligence, assault and battery,\nviolation of public policy; (c) any and all claims of unlawful discrimination, harassment and retaliation under applicable federal, state and local laws\nand regulations; (d) any and all claims of violation of any federal, state, and local law relating to recruitment, hiring, terms and conditions of\nemployment, and termination of employment; and (e) any and all claims for monetary damages and any other forms of personal relief. This Release\nis not intended to apply to claims that cannot be waived by private agreement under applicable law.\nThis release covers any claims Employee may have up to and including the date of this Agreement, but does not cover claims that arise\nafter the date of this Agreement or those relating to the enforcement of this Agreement, nor will it affect those benefits which are intended to survive\nEmployee’s termination as an Employee of the Company, such as conversion of group insurance. This Release does not amount to a waiver of any\nclaims for accrued, vested benefits under any employee benefit or pension plan of RELEASEES, subject to the terms and conditions of such plans\nand applicable law.\nEmployee acknowledges that this Agreement resolves any and all legal claims that Employee may have against the Company as of the\ndate of this Agreement, whether known or unknown.\n5. Employee represents and covenants that Employee will not communicate or disclose the terms of this Agreement to any persons other than\nany federal, state or local taxing authorities, Employee’s immediate family, Employee’s attorney or attorneys, and Employee’s accountant or\naccountants, who will be instructed by Employee to agree to be bound by the confidential nature of this Agreement. Nothing herein is intended to\nlimit Employee’s ability to disclose or discuss the tax treatment or tax structure of the payments made to Employee as necessary to address or clarify\nthe appropriate tax treatment of the payments to be made pursuant to Section 2. Employee recognizes and agrees that should it be determined, in a\ncourt of law, that Employee violated this section, Employee shall be required to refund to the Company all monies payable under this Agreement, in\naddition to any other legal or equitable relief that may be available and awarded to the Company. Nothing in this section, or elsewhere in this\nAgreement, is intended to prevent or prohibit Employee from: (i) providing information regarding Employee’s former employment relationship with\nthe Company, as may be required by law or legal process; or (ii) cooperating, participating, or assisting in any government entity investigation or\nproceeding.\n6. Employee understands and agrees that in the course of employment with the Company, Employee may have acquired confidential\ninformation and trade secrets concerning the Company’s business, its future plans and its methods of doing business, including, without limitation,\ninformation about its products, services, product development, customers, technology, financial circumstances, marketing, pricing, costs,\ncompensation and other matters (hereinafter collectively called “Trade Secrets”).\nEmployee may not reveal or disclose, sell, use, lecture upon, or publish any such Trade Secrets, or authorize anyone else to do so at any time\nsubsequent to Employee’s employment with the Company. Employee will return all copies and originals of the Company documents, files, lists and\nother information of a business nature to the Company immediately, (whether or not such includes Trade Secrets) and any future use of same by\nEmployee is prohibited.\n7. Employee and the Company mutually agree to refrain from making disparaging, defaming, derogatory, critical or negative comments\nregarding each other, the Company’s products, services or officers, directors, employees or former employees of the Company with respect to any\npast, present or future issues, except if testifying truthfully in response to a lawfully served subpoena.\n8. Neither the negotiation, undertaking or signing of this Agreement constitutes or operates as an acknowledgment or admission that the\nCompany, or any person acting on behalf of the Company, has violated or failed to comply with any provisions of federal or state constitution,\nstatute, law, regulation, municipal ordinance, or principle of common law. This agreement is made voluntarily to provide an amicable conclusion to\nEmployee’s employment relationship with the Company.\n9. Employee agrees and understands that the Company does not have, and will not have, any further obligations to provide Employee at any\ntime with any payment, benefit or consideration other than those recited in Section 2 above.\n10. Employee hereby agrees and recognizes that Employee’s employment relationship with the Company has been permanently and\nirrevocably severed as of the June 15, 2007 Termination Date and that the Company has no obligation, contractual or otherwise, to hire, rehire or re-\nemploy Employee in the future.\n11. Employee agrees that Employee shall reasonably cooperate with the Company following the Termination Date to assist with legal\nproceedings with respect to matters for which Employee was responsible during Employee’s employment with the Company.\n12. In signing this Agreement, Employee acknowledges that:\n(a) Employee has signed this Agreement voluntarily and knowingly in exchange for the consideration described herein, which Employee\nacknowledges as adequate and satisfactory.\n(b) Employee has been advised by the Company to consult with an attorney before signing this Agreement;\n(c) Employee has been given a period of at least twenty-one (21) calendar days after the date Employee received this Agreement, within\nwhich to review and consider this Agreement, to discuss it with an attorney of Employee’s own choosing, and to decide whether or not to\nsign this Agreement.\n(d) The Employee has consulted with an attorney of his own choosing during this time period.\n(e) In addition, for the period of seven (7) calendar days after the date Employee signs this Agreement (“Revocation Period”), Employee\nmay revoke it by delivering written notice of revocation to the Company by hand-delivery or by facsimile or e-mail transmission (and\nretaining proof of successful transmission) using the street, facsimile, or e-mail address to: Patricia A. Twomey, Vice President, Human\nResources, Orthovita Inc., 77 Great Valley Parkway, Malvern, PA, 610.640 .9206 (facsimile), PTwomey@Orthovita.com (email); and\n(f) Neither the Company, nor any of its employees, agents, representatives, or attorneys has made any representations to Employee\nconcerning the terms or effects of this Agreement and other than those contained herein.\n13. In the event that any one or more provisions (or portion thereof) of this Agreement is held to be invalid, unlawful, or unenforceable for any\nreason, the invalid, unlawful, or unenforceable provision (or portion thereof) shall be construed or modified so as to provide the Company and\nAffiliates with the maximum protection that is valid, lawful and enforceable, consistent with the intent of the Company and Employee in entering\ninto this Agreement. If such provision (or portion thereof) cannot be construed or modified so as to be valid, lawful and enforceable, that provision\n(or portion thereof) shall be construed as narrowly as possible and shall be severed from the remainder of the Agreement (or provision), and the\nremainder shall remain in effect and be construed as broadly as possible, as if such invalid, unlawful or unenforceable provision (or portion thereof)\nhad never been contained in this Agreement.\n14. This Agreement shall take effect on the first day following the expiration of the Revocation Period, provided this Agreement has not been\nrevoked by Employee as provided in Section 12 above during such Revocation Period (the “Effective Date”).\n15. It is agreed and understood that this Agreement contains and comprises the entire understanding of the parties and that there are no\nadditional or other promises, representations, terms or provisions other than those expressly contained herein. This Agreement shall not be modified\nexcept in writing signed by each of the parties. This Agreement supersedes all other prior agreements concerning the terms of Employee’s\nemployment with the Company, except for the CDA as amended hereby.\n16. Employee agrees to the jurisdiction of any court in the Commonwealth of Pennsylvania over all disputes, which may arise involving this\nAgreement and Employee hereby consents to the assertion of personal jurisdiction over Employee by any such Court in any such action instituted by\nthe Company pursuant to this section. This Agreement and the obligations of the parties shall be construed, interpreted and enforced in accordance\nwith the laws of Pennsylvania without regard to choice of law provisions.\nI HAVE READ THIS AGREEMENT. I UNDERSTAND THAT I AM GIVING UP IMPORTANT RIGHTS PER SECTION 4,\nABOVE. I AM AWARE OF MY RIGHT TO CONSULT WITH AN ATTORNEY OF MY OWN CHOOSING DURING THE\nCONSIDERATION PERIOD, AND THAT THE COMPANY HAS ADVISED ME TO UNDERTAKE SUCH CONSULTATION BEFORE\nSIGNING THIS AGREEMENT. I SIGN THIS AGREEMENT FREELY AND VOLUNTARILY, WITHOUT DURESS OR COERCION.\nIN WITNESS WHEREOF, and intending to be legally bound and under seal, the parties have executed the foregoing Confidentiality\nSeparation Agreement and General Release and Amendment to Confidentiality and Non-Disclosure Agreement.\nDated: June 21, 2007\nBy: /s/ Donald L. Scanlan\nORTHOVITA, INC.\nDated: June 25, 2007\nBy: /s/ Antony Koblish\nPresident & CEO\nWitness: /s/ Patricia A. Twomey
+f6cf95250272fd7f3fd767819ee11255.pdf	effective_date jurisdiction party term	EX-10.16 21 u98691exv10w16.txt EX-10.16 CONFIDENTIALITY & NON-COMPETITION AGREET EXHIBIT\n10.16 CONFIDENTIALITY AND NON-COMPETITION AGREEMENT This Confidentiality and Non-Competition\nAgreement (the "Agreement") is made as of this 10th day of September 2003 ("Effective Date") by and between\nCtrip.com International, Ltd. (the "Company") and Qi Ji (the "Director"). The Company and the Director are hereinafter\nreferred to individually as a "Party" and collectively as the "Parties." WHEREAS, the Director is a member of the\nCompany's Board of Directors, and also a principal shareholder of most of the related entities of the Company in China\n(excluding the Company's subsidiaries) (collectively, the "Related Chinese Entities"); WHEREAS, both the Director and\nthe Company expressly acknowledge and agree that the sole purpose of the Related Chinese Entities is to further the\nbusiness purposes of the Company; and WHEREAS, in light of the Director's fiduciary relationship with the Company\nand in consideration for the Director's agreement to enter into this Agreement with the Company, the Company has\nassisted and will assist in the capitalization and operation of the Related Chinese Entities. NOW, THEREFORE, in\nconsideration of the premises and of the mutual covenants and agreements set forth below, the Parties agree as follows: I.\nCONFIDENTIALITY 1.1 The Director shall keep secret and shall not at any time use for Director's own or any third\nparty's advantage, or reveal to any person, company, organization or any other entity, and shall use the Director's best\nendeavors to prevent the publication or disclosure of, any and all Confidential Information (as defined below). 1.2 If the\nDirector breaches his obligation of confidentiality hereunder, the Director shall be liable to the Company for all damages\n(direct or consequential) incurred as a result of the Director's breach. 1.3 The restrictions in this Article I shall not apply\nto any disclosure or use authorized by the Company or required by law. 1.4 "Confidential Information" shall mean\ninformation relating to the business, customers, products and affairs of the Company (including without limitation,\nmarketing information) deemed or treated confidential by the Company, or which the Director knows or ought\nreasonably to have known to be confidential, and trade secrets, including without limitation designs, processes, pricing\npolicies, methods, inventions, technology, technical data, financial information and know-how relating to the business of\nthe Company. 1.5 For purposes of Articles I and II of this Agreement, the Company shall include all subsidiaries of the\nCompany as well as the Related Chinese Entities. EXHIBIT 10.16 II . NON-COMPETITION 2.l The Director agrees that\nhe shall not engage in any business directly competitive with that carried on by the Company, provided that nothing in\nthis clause shall preclude the Director from holding or being otherwise interested in any shares or other securities of any\ncompany, any part of which is listed or dealt in on any stock exchange or recognized securities market anywhere, and the\nDirector shall notify the Company in writing of his interest in such shares or securities in a timely manner and with such\ndetails and particulars as the Company may reasonably require. 2.2 In consideration of the Company's assistance in the\ncapitalization and operation of the Related Chinese Entities, the Director hereby agrees that during the period he is a\nshareholder of any of the Related Chinese Entities and for a period of five (5) years following the termination of this\nAgreement: (a) Director shall not approach clients, customers, suppliers or contacts of the Company or other persons or\nentities introduced to Director in Director's capacity as a director or shareholder of the Company for the purposes of\ndoing business with such persons or entities and will not interfere with the business relationship between the Company\nand such persons and/or entities; (b) unless expressly consented to by the Company, Director will not provide services as\na director or otherwise for any competitor of the Company in China, or engage, whether as principal, partner, licensor or\notherwise, in any business which is in direct or indirect competition with the business of the Company; and (c) unless\nexpressly consented to by the Company, Director will not seek directly or indirectly, by the offer of alternative\nemployment or other inducement whatsoever, to solicit the services of any employee of the Company employed as at the\ndate of termination of this Agreement, or in the year preceding such termination. 2.3 The provisions provided in Article\nII shall be separate and severable and enforceable independently of each other and independent of any other provision of\nthis Agreement. In the event that any provision of this Article II should be found to be void under applicable laws and\nregulations but would be valid if some part thereof were deleted or the period or area of application reduced, such\nprovisions shall apply with such modification as may be necessary to make them valid and effective. III. TERM. This\nAgreement shall remain in full force and effect until both Parties hereto agree to terminate it in writing. IV.\nMISCELLANEOUS 4.1 Binding Effect. This Agreement will be binding upon and inure to the benefit of any successor\nof the Company. Any such successor of the Company will be deemed substituted for the Company under the terms of\nthis Agreement for all 2 EXHIBIT 10.16 purposes. For this purpose, "successor" means any person, company,\norganization or other entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires\nall or substantially all of the assets or business of the Company. 4.2 Governing Law. This Agreement shall be governed\nby and construed in accordance with the laws of New York, USA, without conflicts of laws principles thereof. 4.3\nSeverability. In the case that any one or more of the provisions contained in this Agreement shall be held invalid, illegal\nor unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining\nprovisions contained herein shall not in any way be affected or impaired thereby. 4.4 Entire Agreement. This Agreement\nconstitutes the entire agreement and understanding between the Parties and supersedes all other oral and written\nagreements between the Company and the Director regarding the subject matter hereof. The Director acknowledges that\nhe has not entered into this Agreement in reliance upon any representation, warranty or undertaking which is not set\nforth in this Agreement. 4.5 Notice. Any notice to be given under this Agreement to the Director may be served by being\nhanded to Director personally or by being sent by recorded delivery first class post to Director at Director's usual or last\nknown address; and any notice to be given to the Company may be served by being left at or by being sent by recorded\ndelivery first class post to its registered office. Any notice served by post shall be deemed to have been served on the day\n(excluding Sundays and statutory holidays) next following the date of posting and in proving such service it shall be\nsufficient proof that the envelope containing the notice was properly addressed and posted as a prepaid letter by recorded\ndelivery first class post. 4.6 Headings. The headings in this Agreement are for the convenience of the Parties hereto and\nshall not be deemed a substantive part of this Agreement. 4.7 Amendment. No amendment to the terms of this\nAgreement shall be valid unless in writing and signed by both Parties hereto. 4.8 Counterparts. This Agreement may be\nsigned in two (2) counterparts and each counterpart shall be deemed to be an original. [SIGNATURE PAGE FOLLOWS]\n3 EXHIBIT 10.16 IN WITNESS WHEREOF this Agreement has been executed on the date first above written.\nCtrip.com International, Ltd. DIRECTOR Signature: /s/ Signature: /s/ Qi Ji ---------------------- --------------------------\nName: Name: Qi Ji --------------------------- ------------------------------- 4	EX-10.16 21 u98691exv10w16.txt EX-10.16 CONFIDENTIALITY & NON-COMPETITION AGREET EXHIBIT\n10.16 CONFIDENTIALITY AND NON-COMPETITION AGREEMENT This Confidentiality and Non-Competition\nAgreement (the "Agreement") is made as of this 10th day of September 2003 ("Effective Date") by and between\nCtrip.com International, Ltd. (the "Company") and Qi Ji (the "Director"). The Company and the Director are hereinafter\nreferred to individually as a "Party" and collectively as the "Parties." WHEREAS, the Director is a member of the\nCompany's Board of Directors, and also a principal shareholder of most of the related entities of the Company in China\n(excluding the Company's subsidiaries) (collectively, the "Related Chinese Entities"); WHEREAS, both the Director and\nthe Company expressly acknowledge and agree that the sole purpose of the Related Chinese Entities is to further the\nbusiness purposes of the Company; and WHEREAS, in light of the Director's fiduciary relationship with the Company\nand in consideration for the Director's agreement to enter into this Agreement with the Company, the Company has\nassisted and will assist in the capitalization and operation of the Related Chinese Entities. NOW, THEREFORE, in\nconsideration of the premises and of the mutual covenants and agreements set forth below, the Parties agree as follows: 1.\nCONFIDENTIALITY 1.1 The Director shall keep secret and shall not at any time use for Director's own or any third\nparty's advantage, or reveal to any person, company, organization or any other entity, and shall use the Director's best\nendeavors to prevent the publication or disclosure of, any and all Confidential Information (as defined below). 1.2 If the\nDirector breaches his obligation of confidentiality hereunder, the Director shall be liable to the Company for all damages\n(direct or consequential) incurred as a result of the Director's breach. 1.3 The restrictions in this Article I shall not apply\nto any disclosure or use authorized by the Company or required by law. 1.4 "Confidential Information" shall mean\ninformation relating to the business, customers, products and affairs of the Company (including without limitation,\nmarketing information) deemed or treated confidential by the Company, or which the Director knows or ought\nreasonably to have known to be confidential, and trade secrets, including without limitation designs, processes, pricing\npolicies, methods, inventions, technology, technical data, financial information and know-how relating to the business of\nthe Company. 1.5 For purposes of Articles I and II of this Agreement, the Company shall include all subsidiaries of the\nCompany as well as the Related Chinese Entities. EXHIBIT 10.16 II. NON-COMPETITION 2.1 The Director agrees that\nhe shall not engage in any business directly competitive with that carried on by the Company, provided that nothing in\nthis clause shall preclude the Director from holding or being otherwise interested in any shares or other securities of any\ncompany, any part of which is listed or dealt in on any stock exchange or recognized securities market anywhere, and the\nDirector shall notify the Company in writing of his interest in such shares or securities in a timely manner and with such\ndetails and particulars as the Company may reasonably require. 2.2 In consideration of the Company's assistance in the\ncapitalization and operation of the Related Chinese Entities, the Director hereby agrees that during the period he is a\nshareholder of any of the Related Chinese Entities and for a period of five (5) years following the termination of this\nAgreement: (a) Director shall not approach clients, customers, suppliers or contacts of the Company or other persons or\nentities introduced to Director in Director's capacity as a director or shareholder of the Company for the purposes of\ndoing business with such persons or entities and will not interfere with the business relationship between the Company\nand such persons and/or entities; (b) unless expressly consented to by the Company, Director will not provide services as\na director or otherwise for any competitor of the Company in China, or engage, whether as principal, partner, licensor or\notherwise, in any business which is in direct or indirect competition with the business of the Company; and (c) unless\nexpressly consented to by the Company, Director will not seek directly or indirectly, by the offer of alternative\nemployment or other inducement whatsoever, to solicit the services of any employee of the Company employed as at the\ndate of termination of this Agreement, or in the year preceding such termination. 2.3 The provisions provided in Article\nIT shall be separate and severable and enforceable independently of each other and independent of any other provision of\nthis Agreement. In the event that any provision of this Article II should be found to be void under applicable laws and\nregulations but would be valid if some part thereof were deleted or the period or area of application reduced, such\nprovisions shall apply with such modification as may be necessary to make them valid and effective. III. TERM. This\nAgreement shall remain in full force and effect until both Parties hereto agree to terminate it in writing. IV.\nMISCELLANEOUS 4.1 Binding Effect. This Agreement will be binding upon and inure to the benefit of any successor\nof the Company. Any such successor of the Company will be deemed substituted for the Company under the terms of\nthis Agreement for all 2 EXHIBIT 10.16 purposes. For this purpose, "successor" means any person, company,\norganization or other entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires\nall or substantially all of the assets or business of the Company. 4.2 Governing Law. This Agreement shall be governed\nby and construed in accordance with the laws of New York, USA, without conflicts of laws principles thereof. 4.3\nSeverability. In the case that any one or more of the provisions contained in this Agreement shall be held invalid, illegal\nor unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining\nprovisions contained herein shall not in any way be affected or impaired thereby. 4.4 Entire Agreement. This Agreement\nconstitutes the entire agreement and understanding between the Parties and supersedes all other oral and written\nagreements between the Company and the Director regarding the subject matter hereof. The Director acknowledges that\nhe has not entered into this Agreement in reliance upon any representation, warranty or undertaking which is not set\nforth in this Agreement. 4.5 Notice. Any notice to be given under this Agreement to the Director may be served by being\nhanded to Director personally or by being sent by recorded delivery first class post to Director at Director's usual or last\nknown address; and any notice to be given to the Company may be served by being left at or by being sent by recorded\ndelivery first class post to its registered office. Any notice served by post shall be deemed to have been served on the day\n(excluding Sundays and statutory holidays) next following the date of posting and in proving such service it shall be\nsufficient proof that the envelope containing the notice was properly addressed and posted as a prepaid letter by recorded\ndelivery first class post. 4.6 Headings. The headings in this Agreement are for the convenience of the Parties hereto and\nshall not be deemed a substantive part of this Agreement. 4.7 Amendment. No amendment to the terms of this\nAgreement shall be valid unless in writing and signed by both Parties hereto. 4.8 Counterparts. This Agreement may be\nsigned in two (2) counterparts and each counterpart shall be deemed to be an original. [SIGNATURE PAGE FOLLOWS]\n3 EXHIBIT 10.16 IN WITNESS WHEREOF this Agreement has been executed on the date first above written.\nCtrip.com International, Ltd. DIRECTOR Signature: /s/ Signature: /s/ Qi Ji -==--====mmmmmmmmmmmme oo\nName: Name: Qi Ji —=--=mmmmm oo e e e 4	EX-10.16 21 EX-10.16 CONFIDENTIALITY & NON-COMPETITION AGREET EXHIBIT\n10.16 CONFIDENTIALITY AND NON-COMPETITION AGREEMENT This Confidentiality and Non-Competition\nAgreement (the "Agreement") is made as of this 10th day of September 2003 ("Effective Date") by and between\nCtrip.com International, Ltd. (the "Company") and Qi Ji (the "Director"). The Company and the Director are hereinafter\nreferred to individually as a "Party" and collectively as the "Parties." WHEREAS, the Director is a member of the\nCompany's Board of Directors, and also a principal shareholder of most of the related entities of the Company in China\n(excluding the Company's subsidiaries) (collectively, the "Related Chinese Entities") WHEREAS, both the Director and\nthe Company expressly acknowledge and agree that the sole purpose of the Related Chinese Entities is to further the\nbusiness purposes of the Company; and WHEREAS, in light of the Director's fiduciary relationship with the Company\nand in consideration for the Director's agreement to enter into this Agreement with the Company, the Company has\nassisted and will assist in the capitalization and operation of the Related Chinese Entities. NOW, THEREFORE, in\nconsideration of the premises and of the mutual covenants and agreements set forth below, the Parties agree as follows:\nI.\nCONFIDENTIALITY\n1.1\nThe\nDirector\nshall\nkeep\nsecret\nand\nshall\nnot\nat\nany\ntime\nuse\nfor\nDirector's\nown\nor\nany\nthird\nparty's advantage, or reveal to any person, company, organization or any other entity, and shall use the Director's best\nendeavors to prevent the publication or disclosure of, any and all Confidential Information (as defined below) 1.2 If the\nDirector breaches his obligation of confidentiality hereunder, the Director shall be liable to the Company for all damages\n(direct or consequential) incurred as a result of the Director's breach. 1.3 The restrictions in this Article I shall not apply\nto\nany\ndisclosure or use authorized by the Company or required by law. 1.4 "Confidential Information" shall mean\ninformation relating to the business, customers, products and affairs of the Company (including without limitation,\nmarketing information) deemed or treated confidential by the Company, or which the Director knows or ought\nreasonably to have known to be confidential, and trade secrets, including without limitation designs, processes, pricing\npolicies, methods, inventions, technology, technical data, financial information and know-how relating to the business of\nthe Company. 1.5 For purposes of Articles I and II of this Agreement, the Company shall include all subsidiaries of the\nCompany as well as the Related Chinese Entities. EXHIBIT 10.16 II. NON-COMPETITION 2.1 The Director agrees that\nhe shall not engage in any business directly competitive with that carried on by the Company, provided that nothing in\nthis clause shall preclude the Director from holding or being otherwise interested in any shares or other securities of any\ncompany, any part of which is listed or dealt in on any stock exchange or recognized securities market anywhere, and the\nDirector shall notify the Company in writing of his interest in such shares or securities in a timely manner and with such\ndetails and particulars as the Company may reasonably require. 2.2 In consideration of the Company's assistance in the\ncapitalization and operation of the Related Chinese Entities, the Director hereby agrees that during the period he is a\nshareholder of any of the Related Chinese Entities and for a period of five (5) years following the termination\nof\nthis\nAgreement: (a) Director shall not approach clients, customers, suppliers or contacts of the Company or other persons\nor\nentities introduced to Director in Director's capacity as a director or shareholder of the Company for the purposes of\ndoing business with such persons or entities and will not interfere with the business relationship between the Company\nand such persons and/or entities; (b) unless expressly consented to by the Company, Director will not provide services as\na\ndirector or otherwise for any competitor of the Company in China, or engage, whether as principal, partner,\nlicensor\nor\notherwise, in any business which is in direct or indirect competition with the business of the Company; and (c) unless\nexpressly consented to by the Company, Director will not seek directly or indirectly, by the offer of alternative\nemployment or other inducement whatsoever, to solicit the services of any employee of the Company employed as at the\ndate of termination of this Agreement, or in the year preceding such termination. 2.3 The provisions provided in Article\nII shall be separate and severable and enforceable independently of each other and independent of any other provision of\nthis Agreement. In the event that any provision of this Article II should be found to be void under applicable laws and\nregulations but would be valid if some part thereof were deleted or the period or area of application reduced, such\nprovisions shall apply with such modification as may be necessary to make them valid and effective. III. TERM. This\nAgreement shall remain in full force and effect until both Parties hereto agree to terminate it in writing IV.\nMISCELLANEOUS 4.1 Binding Effect. This Agreement will be binding upon and inure to the benefit of any successor\nof the Company. Any such successor of the Company will be deemed substituted for the Company under the terms of\nthis Agreement for all 2 EXHIBIT 10.16 purposes. For this purpose, "successor" means any person, company,\norganization or other entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires\nall or substantially all of the assets or business of the Company. 4.2 Governing Law. This Agreement shall be governed\nby and construed in accordance with the laws of New York, USA, without conflicts of laws principles thereof. 4.3\nSeverability. In the case that any one or more of the provisions contained in this Agreement shall be held invalid, illegal\nor unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining\nprovisions contained herein shall not in any way be affected or impaired thereby. 4.4 Entire Agreement. This Agreement\nconstitutes the entire agreement and understanding between the Parties and supersedes all other oral and written\nagreements between the Company and the Director regarding the subject matter hereof. The Director acknowledges that\nhe has not entered into this Agreement in reliance upon any representation, warranty or undertaking which is not set\nforth in this Agreement. 4.5 Notice. Any notice to be given under this Agreement to the Director may be served by being\nhanded to Director personally or by being sent by recorded delivery first class post to Director at Director's usual or last\nknown address; and any notice to be given to the Company may be served by being left at or by being sent by recorded\ndelivery first class post to its registered office. Any notice served by post shall be deemed to have been served on the day\n(excluding Sundays and statutory holidays) next following the date of posting and in proving such service it shall be\nsufficient proof that the envelope containing the notice was properly addressed and posted as a prepaid letter by recorded\ndelivery first class post. 4.6 Headings. The headings in this Agreement are for the convenience of the Parties hereto and\nshall not be deemed a substantive part of this Agreement. 4.7 Amendment. No amendment to the terms of this\nAgreement shall be valid unless in writing and signed by both Parties hereto. 4.8 Counterparts. This Agreement may be\nsigned in two (2) counterparts and each counterpart shall be deemed to be an original. [SIGNATURE PAGE FOLLOWS]\n3 EXHIBIT 10.16 IN WITNESS WHEREOF this Agreement has been executed on the date first above written.\nCtrip.com International, Ltd. DIRECTOR Signature: /s/ Signature: /s/ Qi Ji\nName: Name: Qi Ji\n4	EX-10.16 21 u98691exv10w16.txt EX-10.16 CONFIDENTIALITY & NON-COMPETITION AGREET EXHIBIT\n10.16 CONFIDENTIALITY AND NON-COMPETITION AGREEMENT This Confidentiality and Non-Competition\nAgreement (the "Agreement") is made as of this 10th day of September 2003 ("Effective Date") by and between\nCtrip.com International, Ltd. (the "Company") and Qi Ji (the "Director"). The Company and the Director are hereinafter\nreferred to individually as a "Party" and collectively as the "Parties." WHEREAS, the Director is a member of the\nCompany's Board of Directors, and also a principal shareholder of most of the related entities of the Company in China\n(excluding the Company's subsidiaries) (collectively, the "Related Chinese Entities"); WHEREAS, both the Director and\nthe Company expressly acknowledge and agree that the sole purpose of the Related Chinese Entities is to further the\nbusiness purposes of the Company; and WHEREAS, in light of the Director's fiduciary relationship with the Company\nand in consideration for the Director's agreement to enter into this Agreement with the Company, the Company has\nassisted and will assist in the capitalization and operation of the Related Chinese Entities. NOW, THEREFORE, in\nconsideration of the premises and of the mutual covenants and agreements set forth below, the Parties agree as follows: I.\nCONFIDENTIALITY 1.1 The Director shall keep secret and shall not at any time use for Director's own or any third\nparty's advantage, or reveal to any person, company, organization or any other entity, and shall use the Director's best\nendeavors to prevent the publication or disclosure of, any and all Confidential Information (as defined below). 1.2 If the\nDirector breaches his obligation of confidentiality hereunder, the Director shall be liable to the Company for all damages\n(direct or consequential) incurred as a result of the Director's breach. 1.3 The restrictions in this Article I shall not apply\nto any disclosure or use authorized by the Company or required by law. 1.4 "Confidential Information" shall mean\ninformation relating to the business, customers, products and affairs of the Company (including without limitation,\nmarketing information) deemed or treated confidential by the Company, or which the Director knows or ought\nreasonably to have known to be confidential, and trade secrets, including without limitation designs, processes, pricing\npolicies, methods, inventions, technology, technical data, financial information and know-how relating to the business of\nthe Company. 1.5 For purposes of Articles I and II of this Agreement, the Company shall include all subsidiaries of the\nCompany as well as the Related Chinese Entities. EXHIBIT 10.16 II . NON-COMPETITION 2.l The Director agrees that\nhe shall not engage in any business directly competitive with that carried on by the Company, provided that nothing in\nthis clause shall preclude the Director from holding or being otherwise interested in any shares or other securities of any\ncompany, any part of which is listed or dealt in on any stock exchange or recognized securities market anywhere, and the\nDirector shall notify the Company in writing of his interest in such shares or securities in a timely manner and with such\ndetails and particulars as the Company may reasonably require. 2.2 In consideration of the Company's assistance in the\ncapitalization and operation of the Related Chinese Entities, the Director hereby agrees that during the period he is a\nshareholder of any of the Related Chinese Entities and for a period of five (5) years following the termination of this\nAgreement: (a) Director shall not approach clients, customers, suppliers or contacts of the Company or other persons or\nentities introduced to Director in Director's capacity as a director or shareholder of the Company for the purposes of\ndoing business with such persons or entities and will not interfere with the business relationship between the Company\nand such persons and/or entities; (b) unless expressly consented to by the Company, Director will not provide services as\na director or otherwise for any competitor of the Company in China, or engage, whether as principal, partner, licensor or\notherwise, in any business which is in direct or indirect competition with the business of the Company; and (c) unless\nexpressly consented to by the Company, Director will not seek directly or indirectly, by the offer of alternative\nemployment or other inducement whatsoever, to solicit the services of any employee of the Company employed as at the\ndate of termination of this Agreement, or in the year preceding such termination. 2.3 The provisions provided in Article\nII shall be separate and severable and enforceable independently of each other and independent of any other provision of\nthis Agreement. In the event that any provision of this Article II should be found to be void under applicable laws and\nregulations but would be valid if some part thereof were deleted or the period or area of application reduced, such\nprovisions shall apply with such modification as may be necessary to make them valid and effective. III. TERM. This\nAgreement shall remain in full force and effect until both Parties hereto agree to terminate it in writing. IV.\nMISCELLANEOUS 4.1 Binding Effect. This Agreement will be binding upon and inure to the benefit of any successor\nof the Company. Any such successor of the Company will be deemed substituted for the Company under the terms of\nthis Agreement for all 2 EXHIBIT 10.16 purposes. For this purpose, "successor" means any person, company,\norganization or other entity which at any time, whether by purchase, merger or otherwise, directly or indirectly acquires\nall or substantially all of the assets or business of the Company. 4.2 Governing Law. This Agreement shall be governed\nby and construed in accordance with the laws of New York, USA, without conflicts of laws principles thereof. 4.3\nSeverability. In the case that any one or more of the provisions contained in this Agreement shall be held invalid, illegal\nor unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining\nprovisions contained herein shall not in any way be affected or impaired thereby. 4.4 Entire Agreement. This Agreement\nconstitutes the entire agreement and understanding between the Parties and supersedes all other oral and written\nagreements between the Company and the Director regarding the subject matter hereof. The Director acknowledges that\nhe has not entered into this Agreement in reliance upon any representation, warranty or undertaking which is not set\nforth in this Agreement. 4.5 Notice. Any notice to be given under this Agreement to the Director may be served by being\nhanded to Director personally or by being sent by recorded delivery first class post to Director at Director's usual or last\nknown address; and any notice to be given to the Company may be served by being left at or by being sent by recorded\ndelivery first class post to its registered office. Any notice served by post shall be deemed to have been served on the day\n(excluding Sundays and statutory holidays) next following the date of posting and in proving such service it shall be\nsufficient proof that the envelope containing the notice was properly addressed and posted as a prepaid letter by recorded\ndelivery first class post. 4.6 Headings. The headings in this Agreement are for the convenience of the Parties hereto and\nshall not be deemed a substantive part of this Agreement. 4.7 Amendment. No amendment to the terms of this\nAgreement shall be valid unless in writing and signed by both Parties hereto. 4.8 Counterparts. This Agreement may be\nsigned in two (2) counterparts and each counterpart shall be deemed to be an original. [SIGNATURE PAGE FOLLOWS]\n3 EXHIBIT 10.16 IN WITNESS WHEREOF this Agreement has been executed on the date first above written.\nCtrip.com International, Ltd. DIRECTOR Signature: /s/ Signature: /s/ Qi Ji ---------------------- --------------------------\nName: Name: Qi Ji --------------------------- ------------------------------- 4
+f87b56cd42d82dfd2ec1356a8c187e4e.pdf	effective_date jurisdiction party term	EX-10 .27 7 ex1027formofenterprisenon- . htm EXHIBIT 10.27\nCVS Pharmacy, Inc.\nRestrictive Covenant Agreement\nI, _____________________________________, enter into this Restrictive Covenant Agreement (“Agreement”) with CVS\nPharmacy, Inc. (“CVS”), which is effective as of the date I sign the Agreement (the “Effective Date”). In consideration of the\nmutual promises in this Agreement, the parties agree as follows:\n1.\nConsideration for Agreement. In connection with my duties and responsibilities at CVS Caremark Corporation or one\nof its subsidiaries or affiliates (collectively, the “Corporation”), the Corporation will provide me with Confidential Information\nand/or access to the Corporation’s customers and clients and the opportunity to develop and maintain relationships and goodwill\nwith them. In addition, the Corporation has awarded me restricted stock units contingent on the execution of this Agreement and\ncompliance with its terms.\n2.\nNon-Competition. During my employment by the Corporation and during the Non-Competition Period following the\ntermination of my employment for any reason, I will not, directly or indirectly, engage in Competition or provide Consulting or\nAudit Services within the Restricted Area.\na. Competition. Engaging in “Competition” means providing services to a Competitor of the Corporation (whether as an\nemployee, independent contractor, consultant, principal, agent, partner, officer, director, investor, or shareholder, except as a\nshareholder of less than one percent of a publicly traded company) that: (i) are the same or similar in function or purpose to the\nservices I provided to the Corporation during the last two years of my employment by the Corporation, or (ii) will likely result in\nthe disclosure of Confidential Information to a Competitor or the use of Confidential Information on behalf of a Competitor. If a\nrepresentative of the Corporation, during my employment or the Non-Competition Period, requests that I identify the company or\nbusiness to which I will be or am providing services, or with which I will be or am employed, and requests that I provide\ninformation about the services that I am or will be providing to such entity, I shall provide the Corporation with a written statement\ndetailing the identity of the entity and the nature of the services that I am or will be providing to such entity with sufficient detail to\nallow the Corporation to independently assess whether I am or will be in violation of this Agreement. Such statement shall be\ndelivered to the Corporation’s Chief Human Resources Officer or her authorized delegate via personal delivery or overnight\ndelivery within five calendar days of my receipt of such request.\nb. Competitor. A “Competitor” for purposes of this Agreement shall mean any person, corporation or other entity that\ncompetes with one or more of the business offerings of the Corporation. As of the Effective Date, the Corporation’s business\nofferings include: (i) pharmacy benefits management (“PBM”), including: (a) the administration of pharmacy benefits for\nbusinesses, government agencies and health plans; (b) mail order pharmacy; (c) specialty pharmacy, including but not limited to\ninfusion and related services; (d) Medicare Part D services; (ii) retail, which includes the sale of prescription drugs, over-the-counter\nmedications, beauty products and cosmetics, photo finishing, seasonal merchandise, greeting cards, convenience foods and other\nproduct lines that are sold by the Corporation’s retail division; and (iii) retail health care (“MinuteClinic”). A person or entity shall\nnot be considered a retail Competitor if such entity derives annual gross revenues from its business in an amount that is less than 5%\nof the Corporation’s gross revenues from its retail business during its most recently completed fiscal year. The Parties acknowledge\nthat both the Corporation’s products and services and the entities\nthat compete with the Corporation’s products and services evolve and that an entity will be considered a Competitor if it provides\nproducts or services competitive with the products and services provided by the Corporation within the last two years of your\nemployment.\nGiven my role in the Corporation, I agree to this enterprise-wide definition of non-competition that will prevent me from\nproviding services to the Corporation’s PBM, retail and MinuteClinic Competitors during the relevant time period.\nc. Consulting or Audit Services. “Consulting or Audit Services” shall mean any activity that involves providing audit\nreview or other consulting or advisory services with respect to any relationship or prospective relationship between the Corporation\nand any third party, including but not limited to PBM clients, suppliers or vendors and that is likely to result in the use or disclosure\nof Confidential Information.\nd. Non-Competition Period. The “Non-Competition Period” shall be the period of 18 months following the termination\nof my employment with the Corporation for any reason.\ne. Restricted Area. “Restricted Area” refers to those states within the United States in which the Corporation conducts its\nbusiness, as well as the District of Columbia and Puerto Rico. To the extent I worked on international projects in Brazil and/or\nIreland or other countries where the Corporation may conduct business, the Restricted Area includes those countries and\nprospective countries.\n3.\nNon-Solicitation. During the Non-Solicitation Period, which shall be 18 months following the termination of my\nemployment with the Corporation for any reason, I will not, unless a duly authorized officer of the Corporation gives me written\nauthorization to do so:\na.\ninterfere with the Corporation’s relationship with its Business Partners by soliciting or communicating (regardless\nof who initiates the communication) with a Business Partner to: (i) induce or encourage the Business Partner to stop doing business\nor reduce its business with the Corporation, or (ii) buy a product or service that competes with a product or service offered by the\nCorporation’s business. “Business Partner” means: a customer (person or entity), prospective customer (person or entity), supplier,\nmanufacturer, broker, hospital, hospital system, and/or pharmaceutical company with whom the Corporation has a business\nrelationship and with which I had business-related contact or dealings, or about which I received Confidential Information, in the\ntwo years prior to the termination of my employment with the Corporation. A Business Partner does not include a customer,\nsupplier, manufacturer, broker, hospital, hospital system, pharmaceutical company that has fully and finally ceased doing any\nbusiness with the Corporation independent of any conduct or communications by me or breach of this Agreement. Nothing in this\nParagraph 3(a) shall prevent me from working as a staff pharmacist or in another retail position wherein I would be providing or\nselling prescriptions or other products directly to consumers.\nb.\nwork on a Corporation account on behalf of a Business Partner or serve as the representative of a Business\nPartner for the Corporation.\nc.\ninterfere with the Corporation’s relationship with any employee or contractor of the Corporation by: (i) soliciting\nor communicating with the employee or contractor to induce or encourage him or her to leave the Corporation’s employ or\nengagement (regardless of who first initiates the communication); (ii) helping another person or entity evaluate such employee or\ncontractor as an\n2\nemployment or contractor candidate; or (iii) otherwise helping any person or entity hire an employee or contractor away from the\nCorporation.\n4.\nNon-Disclosure of Confidential Information.\na. Subject to Section 7 below, I will not at any time, whether during or after the termination of my employment, disclose\nto any person or entity any of the Corporation’s Confidential Information, except as may be appropriately required in the ordinary\ncourse of performing my duties as an employee of the Corporation. The Corporation’s Confidential Information includes but is not\nlimited to the following non-public information: trade secrets; computer code generated or developed by the Corporation; software\nor programs and related documentation; strategic compilations and analysis; strategic processes; business or financial methods,\npractices and plans; non-public costs and prices; operating margins; marketing, merchandising and selling techniques and\ninformation; customer lists; details of customer agreements; pricing arrangements with drug manufacturers, including but not\nlimited to any discounts and/or rebates; pharmacy reimbursement rates; expansion strategies; real estate strategies; operating\nstrategies; sources of supply; patient records; and confidential information of third parties which is given to the Corporation\npursuant to an obligation or agreement to keep such information confidential (collectively, “Confidential Information”). I shall not\nuse or attempt to use any Confidential Information on behalf of any person or entity other than the Corporation, or in any manner\nwhich may injure or cause loss or may be calculated to injure or cause loss, whether directly or indirectly, to the Corporation. For\nemployees residing in Connecticut, these restrictions on use or disclosure of Confidential Information will only apply for three (3)\nyears after the end of my employment where information that does not qualify as a trade secret is concerned; however, the\nrestrictions will continue apply to trade secret information for as long as the information at issue remains qualified as a trade secret.\nb. During my employment, I shall not make, use, or permit to be used, any materials of any nature relating to any matter\nwithin the scope of the business of the Corporation or concerning any of its dealings or affairs other than for the benefit of the\nCorporation. I shall not, after the termination of my employment, use or permit to be used any such materials and shall return same\nin accordance with Section 5 below.\n5.\nOwnership and Return of the Corporation’s Property. On or before my final date of employment with the\nCorporation, I shall return to the Corporation all property of the Corporation in my possession, custody or control, including but not\nlimited to the originals and copies of any information provided to or acquired by me in connection with the performance of my\nduties for the Corporation, such as files, correspondence, communications, memoranda, e-mails, slides, records, and all other\ndocuments, no matter how produced or reproduced, all computer equipment, communication devices (including but not limited to\nany mobile phone, BlackBerry or other portable digital assistant or device), computer programs and/or files, and all office keys and\naccess cards. I agree that all the items described in this Section are the sole property of the Corporation.\n6.\nRights to Inventions, Works.\na. Assignment of Inventions. All inventions, original works of authorship, developments, concepts, improvements,\ndesigns, discoveries, ideas, trademarks or trade secrets, whether patentable or otherwise protectable under similar law, made,\nconceived or developed by me, whether alone or jointly with others, from the date of my initial employment by the Corporation and\ncontinuing until the end of any period during which I am employed by the Corporation, relating or pertaining in any way to my\nemployment with or the business of the Corporation (collectively referred to as “Inventions”) shall be\n3\npromptly disclosed in writing to the Corporation. I hereby assign to the Corporation, or its designee, all of my rights, title and\ninterest to such Inventions. All original works of authorship which are made by me (solely or jointly with others) within the scope\nof and during the period of my employment with the Corporation and which are protectable by copyright are “works made for hire,”\nas that term is defined in the United States Copyright Act and as such are the sole property of the Corporation. The decision whether\nto commercialize or market any Invention developed by me solely or jointly with others is within the Corporation’s sole discretion\nand for the Corporation’s sole benefit and no royalty will be due to me as a result of the Corporation’s efforts to commercialize or\nmarket any such Invention.\nb. Inventions Retained and Licensed. I have attached hereto as Exhibit A, a list describing all inventions, original works\nof authorship, developments, improvements, and trade secrets which were made by me prior to my employment with the\nCorporation (“Prior Inventions”), which belong to me and are not assigned to the Corporation hereunder. If no such list is attached, I\nrepresent that there are no such Prior Inventions. I will not incorporate, or permit to be incorporated, any Prior Invention owned by\nme or in which I have an interest into a Corporation product, process or machine without the Corporation’s prior written consent.\nNotwithstanding the foregoing sentence, if, in the course of my employment with the Corporation, I incorporate into a Corporation\nproduct, process or machine a Prior Invention owned by me or in which I have an interest, the Corporation is hereby granted and\nshall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell such\nPrior Invention as part of or in connection with such product, process or machine.\nc. Patent and Copyright Registrations. I will assist the Corporation, or its designee, at the Corporation’s expense, in\nevery proper way to secure the Corporation’s rights in the Inventions and any copyrights, patents, mask work rights or other\nintellectual property rights relating thereto, including, but not limited to, the disclosure to the Corporation of all pertinent\ninformation and data with respect thereto, the execution of all applications, specifications, oaths, assignments and all other\ninstruments which the Corporation shall deem necessary in order to apply for and obtain such rights and in order to assign and\nconvey to the Corporation, its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such\nInventions, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto. My obligation to\nexecute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after my employment\nends for any reason and/or after the termination of this Agreement. If the Corporation is unable because of my mental or physical\nincapacity or for any other reason to secure my signature to apply for or to pursue any application for any United States or foreign\npatents or copyright registrations covering Inventions or original works of authorship assigned to the Corporation as above, then I\nhereby irrevocably designate and appoint the Corporation and its duly authorized officers and agents as my agent and attorney in\nfact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to\nfurther the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if\nexecuted by me.\nd. Exception to Assignments. I understand that if I am an employee in Illinois, Kansas, North Carolina, Utah or\nMinnesota, I should refer to Exhibit B (incorporated herein for all purposes) for important limitations on the scope of the provisions\nof this Agreement concerning assignment of Inventions. I will advise the Corporation promptly in writing of any inventions that I\nbelieve meet the criteria in Exhibit B and that are not otherwise disclosed on Exhibit A.\n4\n7.\nCooperation.\na. In the event that I receive a subpoena, deposition notice, interview request, or other process or order to testify or\nproduce Confidential Information or any other information or property of the Corporation, I shall promptly: (a) notify the\nCorporation of the item, document, or information sought by such subpoena, deposition notice, interview request, or other process\nor order; (b) furnish the Corporation with a copy of said subpoena, deposition notice, interview request, or other process or order;\nand (c) provide reasonable cooperation with respect to any procedure that the Corporation may initiate to protect Confidential\nInformation or other interests. If the Corporation objects to the subpoena, deposition notice, interview request, process, or order, I\nshall cooperate to ensure that there shall be no disclosure until the court or other applicable entity has ruled upon the objection, and\nthen only in accordance with the ruling so made. If no such objection is made despite a reasonable opportunity to do so, I shall be\nentitled to comply with the subpoena, deposition, notice, interview request, or other process or order provided that I have fulfilled\nthe above obligations.\nb. I will cooperate fully with the Corporation, its affiliates, and their legal counsel in connection with any action,\nproceeding, or dispute arising out of matters with which I was directly or indirectly involved while serving as an employee of the\nCorporation, its predecessors, subsidiaries or affiliates. This cooperation shall include, but shall not be limited to, meeting with, and\nproviding information to, the Corporation and its legal counsel, maintaining the confidentiality of any past or future privileged\ncommunications with the Corporation’s legal counsel (outside and in-house), and making myself available to testify truthfully by\naffidavit, in depositions, or in any other forum on behalf of the Corporation. The Corporation agrees to reimburse me for any\nreasonable and necessary out-of-pocket costs associated with my cooperation.\n8.\nLimitation on Restrictions. Nothing in this Agreement is intended to or shall interfere with my right to file charges or\nparticipate in a proceeding with any appropriate federal, state or local government agency, including the Equal Employment\nOpportunity Commission or the National Labor Relations Board, or to prohibit me from communicating or cooperating with any\nsuch agency in its investigation.\n9.\nEligibility for Severance Pay. If my employment with the Corporation terminates under circumstances in which I am\neligible for severance under the Corporation’s Severance Plan for Non-Store Employees (the “Severance Plan”), the Corporation\nwill offer me severance in accordance with the Severance Plan and the length of the Non-Competition Period will match the length\nof the severance period. I acknowledge that the Severance Plan sets forth pre-requisites I must meet in order to receive severance,\nincluding but not limited to execution of the Corporation’s standard separation agreement and release of claims. In the event that the\nCorporation fails to comply with its obligations to offer me severance according to the Severance Plan, then Section 2 of this\nAgreement shall be of no further effect. I agree that if I decline the Corporation’s offer of severance, I shall continue to be subject to\nthe restrictions in Section 2.\n10.\nInjunctive Relief. Any breach of this Agreement by me will cause irreparable damage to the Corporation and, in the\nevent of such breach, the Corporation shall have, in addition to any and all remedies of law, the right to an injunction, specific\nperformance or other equitable relief to prevent the violation of my obligations hereunder, and without providing a bond to the\nextent permitted by the applicable rules of civil procedure.\n11.\nNo Right of Continued Employment. This Agreement does not create an obligation on the Corporation or any other\nperson or entity to continue my employment.\n5\n12.\nNo Conflicting Agreements. I represent that the performance of my job duties with the Corporation and my compliance\nwith all of the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information\nacquired by me in confidence or in trust prior to my employment by the Corporation.\n13.\nEntire Agreement/No Reliance/No Modifications. This Agreement and any compensation, benefit or equity plan or\nagreement referred to herein including the CVS Caremark Corporation Change in Control Agreement (“CIC Agreement”), to the\nextent those other agreements apply to me, set forth the entire agreement between the parties hereto and fully supersede any and all\nprior and/or supplemental understandings, whether written or oral, between the parties concerning the subject matter of this\nAgreement. Notwithstanding the foregoing, if I am a party to the CIC Agreement, then I understand that in the event of a Change in\nControl, as that term is defined in the CIC, Paragraph 2 of this Agreement shall be null and void. I agree and acknowledge that I\nhave not relied on any representations, promises or agreements of any kind in connection with my decision to accept the terms of\nthis Agreement, except for the representations, promises and agreements herein. Any modification to this Agreement must be made\nin writing and signed by me and the Corporation’s Chief Human Resources Officer or her authorized representative.\n14.\nNo Waiver. Any waiver by the Corporation of a breach of any provision of this Agreement, or of any other similar\nagreement with any other current or former employee of the Corporation, shall not operate or be construed as a waiver of any\nsubsequent breach of such provision or any other provision hereof.\n15.\nSeverability. The parties hereby agree that each provision herein shall be treated as a separate and independent clause,\nand the unenforceability of any one clause shall in no way impair the enforceability of any of the other clauses herein. Moreover, if\none or more of the provisions of this Agreement are for any reason held to be excessively broad as to scope, activity, duration,\nsubject or otherwise so as to be unenforceable at law, the parties consent to such provision or provisions being modified or limited\nby the appropriate judicial body (where allowed by applicable law), so as to be enforceable to the maximum extent compatible with\nthe applicable law.\n16.\nSurvival of Employee’s Obligations. My obligations under this Agreement shall survive the termination of my\nemployment regardless of the manner of such termination and shall be binding upon my heirs, personal representatives, executors,\nadministrators and legal representatives.\n17.\nCorporation’s Right to Assign Agreement. The Corporation has the right to assign this Agreement to its successors\nand assigns without the need for further agreement or consent by me, and all covenants and agreements hereunder shall inure to the\nbenefit of and be enforceable by said successors or assigns.\n18.\nNon-Assignment. I shall not assign my rights and obligations under this Agreement, in whole or in part, whether by\noperation of law or otherwise, without the prior written consent of the Corporation, and any such assignment contrary to the terms\nhereof shall be null and void and of no force or effect.\n19.\nGoverning Law; Headings. This Agreement shall be governed by and construed in accordance with the laws of the\nstate of Rhode Island. The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to\ncontrol or affect the meaning or construction of any provision of this Agreement.\n6\n20.\nTolling. In the event I violate one of the time-limited restrictions in this Agreement, I agree that the time period for such\nviolated restriction shall be extended by one day for each day I have violated the restriction, up to a maximum extension equal to\nthe length of the original period of the restricted covenant.\nIN WITNESS WHEREOF, the undersigned has executed this Agreement as a sealed instrument as of the date set forth below.\n__________________________\n/s/ Lisa Bisaccia\nLisa Bisaccia\nChief Human Resources Officer\n__________________________\nCVS Pharmacy, Inc.\nEmployee ID\nDate: _____________________\n7\nEXHIBIT A\nList of Prior Inventions – See Section 6\n8\nEXHIBIT B\nNotice Regarding Invention Assignment\n1. For an employee residing in Illinois, Kansas, or North Carolina, you are hereby advised:\nNotice. No provision in this Agreement requires you to assign any of your rights to an invention for which no\nequipment, supplies, facility, or trade secret information of the Corporation was used and which was developed entirely on\nyour own time, unless (a) the invention relates (i) to the business of the Corporation or (ii) to the Corporation’s actual or\ndemonstrably anticipated research or development, or (b) the invention results from any work performed by you for the\nCorporation. Illinois 765ILCS1060/1-3, “Employees Patent Act”; Kansas Statutes Section 44-130; North Carolina General\nStatutes Article 10A, Chapter 66, Commerce and Business, Section 66-57 .1.\n2. For an employee residing in Utah, you are hereby advised:\nNotice. No provision in this Agreement requires you to assign any of your rights to an invention which was created\nentirely on your own time, and which is not (a) conceived, developed, reduced to practice, or created by you (i) within the\nscope of your employment with the Corporation, (ii) on the Corporation’s time, or (iii) with the aid, assistance, or use of any\nof the Corporation’s property, equipment, facilities, supplies, resources, or patents, trade secrets, know-how, technology,\nconfidential information, ideas, copy rights, trademarks and service marks and any and all rights, applications and\nregistrations relating to them, (b) the results of any work, services, or duties performed by you for the Corporation, (c) related\nto the industry or trade of the Corporation, or (d) related to the current or demonstrably anticipated business, research, or\ndevelopment of the Corporation. Utah Code Sections 34-39 -1 through 34-39 -3, “Employee Inventions Act.”\n3. For an employee residing in Minnesota, you are hereby advised:\nNotice. No provision in this Agreement requires you to assign any of your rights to an invention for which no equipment,\nsupplies, facility, or trade secret information of the Corporation was used, and which was developed entirely on your own\ntime, and (a) which does not relate (i) directly to the business of the Corporation, or (ii) to the Corporation’s actual or\ndemonstrably anticipated research or development, or (b) which does not result from any work performed by you for the\nCorporation. Minnesota Statutes 13A Section 181.78 .\n9	EX-10.27 7 ex1027formofenterprisenon-.htm EXHIBIT 10.27\nCVS Pharmacy, Inc.\nRestrictive Covenant Agreement\nL , enter into this Restrictive Covenant Agreement (“Agreement”) with CVS\nPharmacy, Inc. (“CVS”), which is effective as of the date I sign the Agreement (the “Effective Date™). In consideration of the\nmutual promises in this Agreement, the parties agree as follows:\n \n1. Consideration for Agreement. In connection with my duties and responsibilities at CVS Caremark Corporation or one\nof its subsidiaries or affiliates (collectively, the “Corporation”), the Corporation will provide me with Confidential Information\nand/or access to the Corporation’s customers and clients and the opportunity to develop and maintain relationships and goodwill\nwith them. In addition, the Corporation has awarded me restricted stock units contingent on the execution of this Agreement and\ncompliance with its terms.\n2. Non-Competition. During my employment by the Corporation and during the Non-Competition Period following the\ntermination of my employment for any reason, I will not, directly or indirectly, engage in Competition or provide Consulting or\nAudit Services within the Restricted Area.\na. Competition. Engaging in “Competition” means providing services to a Competitor of the Corporation (whether as an\nemployee, independent contractor, consultant, principal, agent, partner, officer, director, investor, or shareholder, except as a\nshareholder of less than one percent of a publicly traded company) that: (i) are the same or similar in function or purpose to the\nservices I provided to the Corporation during the last two years of my employment by the Corporation, or (ii) will likely result in\nthe disclosure of Confidential Information to a Competitor or the use of Confidential Information on behalf of a Competitor. If a\nrepresentative of the Corporation, during my employment or the Non-Competition Period, requests that I identify the company or\nbusiness to which I will be or am providing services, or with which I will be or am employed, and requests that I provide\ninformation about the services that I am or will be providing to such entity, I shall provide the Corporation with a written statement\ndetailing the identity of the entity and the nature of the services that I am or will be providing to such entity with sufficient detail to\nallow the Corporation to independently assess whether I am or will be in violation of this Agreement. Such statement shall be\ndelivered to the Corporation’s Chief Human Resources Officer or her authorized delegate via personal delivery or overnight\ndelivery within five calendar days of my receipt of such request.\nb. Competitor. A “Competitor” for purposes of this Agreement shall mean any person, corporation or other entity that\ncompetes with one or more of the business offerings of the Corporation. As of the Effective Date, the Corporation’s business\nofferings include: (i) pharmacy benefits management (“PBM™), including: (a) the administration of pharmacy benefits for\nbusinesses, government agencies and health plans; (b) mail order pharmacy; (c) specialty pharmacy, including but not limited to\ninfusion and related services; (d) Medicare Part D services; (ii) retail, which includes the sale of prescription drugs, over-the-counter\nmedications, beauty products and cosmetics, photo finishing, seasonal merchandise, greeting cards, convenience foods and other\nproduct lines that are sold by the Corporation’s retail division; and (iii) retail health care (“MinuteClinic”). A person or entity shall\nnot be considered a retail Competitor if such entity derives annual gross revenues from its business in an amount that is less than 5%\nof the Corporation’s gross revenues from its retail business during its most recently completed fiscal year. The Parties acknowledge\nthat both the Corporation’s products and services and the entities\nthat compete with the Corporation’s products and services evolve and that an entity will be considered a Competitor if it provides\nproducts or services competitive with the products and services provided by the Corporation within the last two years of your\nemployment.\nGiven my role in the Corporation, I agree to this enterprise-wide definition of non-competition that will prevent me from\nproviding services to the Corporation’s PBM, retail and MinuteClinic Competitors during the relevant time period.\nc. Consulting or Audit Services. “Consulting or Audit Services” shall mean any activity that involves providing audit\nreview or other consulting or advisory services with respect to any relationship or prospective relationship between the Corporation\nand any third party, including but not limited to PBM clients, suppliers or vendors and that is likely to result in the use or disclosure\nof Confidential Information.\nd. Non-Competition Period. The “Non-Competition Period” shall be the period of 18 months following the termination\nof my employment with the Corporation for any reason.\ne. Restricted Area. “Restricted Area” refers to those states within the United States in which the Corporation conducts its\nbusiness, as well as the District of Columbia and Puerto Rico. To the extent I worked on international projects in Brazil and/or\nIreland or other countries where the Corporation may conduct business, the Restricted Area includes those countries and\nprospective countries.\n3. Non-Solicitation. During the Non-Solicitation Period, which shall be 18 months following the termination of my\nemployment with the Corporation for any reason, I will not, unless a duly authorized officer of the Corporation gives me written\nauthorization to do so:\na. interfere with the Corporation’s relationship with its Business Partners by soliciting or communicating (regardless\nof who initiates the communication) with a Business Partner to: (i) induce or encourage the Business Partner to stop doing business\nor reduce its business with the Corporation, or (ii) buy a product or service that competes with a product or service offered by the\nCorporation’s business. “Business Partner” means: a customer (person or entity), prospective customer (person or entity), supplier,\nmanufacturer, broker, hospital, hospital system, and/or pharmaceutical company with whom the Corporation has a business\nrelationship and with which I had business-related contact or dealings, or about which I received Confidential Information, in the\ntwo years prior to the termination of my employment with the Corporation. A Business Partner does not include a customer,\nsupplier, manufacturer, broker, hospital, hospital system, pharmaceutical company that has fully and finally ceased doing any\nbusiness with the Corporation independent of any conduct or communications by me or breach of this Agreement. Nothing in this\nParagraph 3(a) shall prevent me from working as a staff pharmacist or in another retail position wherein I would be providing or\nselling prescriptions or other products directly to consumers.\nb. work on a Corporation account on behalf of a Business Partner or serve as the representative of a Business\nPartner for the Corporation.\nC. interfere with the Corporation’s relationship with any employee or contractor of the Corporation by: (i) soliciting\nor communicating with the employee or contractor to induce or encourage him or her to leave the Corporation’s employ or\nengagement (regardless of who first initiates the communication); (ii) helping another person or entity evaluate such employee or\ncontractor as an\nemployment or contractor candidate; or (iii) otherwise helping any person or entity hire an employee or contractor away from the\nCorporation.\n4, Non-Disclosure of Confidential Information.\na. Subject to Section 7 below, I will not at any time, whether during or after the termination of my employment, disclose\nto any person or entity any of the Corporation’s Confidential Information, except as may be appropriately required in the ordinary\ncourse of performing my duties as an employee of the Corporation. The Corporation’s Confidential Information includes but is not\nlimited to the following non-public information: trade secrets; computer code generated or developed by the Corporation; software\nor programs and related documentation; strategic compilations and analysis; strategic processes; business or financial methods,\npractices and plans; non-public costs and prices; operating margins; marketing, merchandising and selling techniques and\ninformation; customer lists; details of customer agreements; pricing arrangements with drug manufacturers, including but not\nlimited to any discounts and/or rebates; pharmacy reimbursement rates; expansion strategies; real estate strategies; operating\nstrategies; sources of supply; patient records; and confidential information of third parties which is given to the Corporation\npursuant to an obligation or agreement to keep such information confidential (collectively, “Confidential Information™). I shall not\nuse or attempt to use any Confidential Information on behalf of any person or entity other than the Corporation, or in any manner\nwhich may injure or cause loss or may be calculated to injure or cause loss, whether directly or indirectly, to the Corporation. For\nemployees residing in Connecticut, these restrictions on use or disclosure of Confidential Information will only apply for three (3)\nyears after the end of my employment where information that does not qualify as a trade secret is concerned; however, the\nrestrictions will continue apply to trade secret information for as long as the information at issue remains qualified as a trade secret.\nb. During my employment, I shall not make, use, or permit to be used, any materials of any nature relating to any matter\nwithin the scope of the business of the Corporation or concerning any of its dealings or affairs other than for the benefit of the\nCorporation. I shall not, after the termination of my employment, use or permit to be used any such materials and shall return same\nin accordance with Section 5 below.\n5. Ownership and Return of the Corporation’s Property. On or before my final date of employment with the\nCorporation, I shall return to the Corporation all property of the Corporation in my possession, custody or control, including but not\nlimited to the originals and copies of any information provided to or acquired by me in connection with the performance of my\nduties for the Corporation, such as files, correspondence, communications, memoranda, e-mails, slides, records, and all other\ndocuments, no matter how produced or reproduced, all computer equipment, communication devices (including but not limited to\nany mobile phone, BlackBerry or other portable digital assistant or device), computer programs and/or files, and all office keys and\naccess cards. I agree that all the items described in this Section are the sole property of the Corporation.\n6. Rights to Inventions, Works.\na. Assignment of Inventions. All inventions, original works of authorship, developments, concepts, improvements,\ndesigns, discoveries, ideas, trademarks or trade secrets, whether patentable or otherwise protectable under similar law, made,\nconceived or developed by me, whether alone or jointly with others, from the date of my initial employment by the Corporation and\ncontinuing until the end of any period during which I am employed by the Corporation, relating or pertaining in any way to my\nemployment with or the business of the Corporation (collectively referred to as “Inventions™) shall be\npromptly disclosed in writing to the Corporation. I hereby assign to the Corporation, or its designee, all of my rights, title and\ninterest to such Inventions. All original works of authorship which are made by me (solely or jointly with others) within the scope\nof and during the period of my employment with the Corporation and which are protectable by copyright are “works made for hire,”\nas that term is defined in the United States Copyright Act and as such are the sole property of the Corporation. The decision whether\nto commercialize or market any Invention developed by me solely or jointly with others is within the Corporation’s sole discretion\nand for the Corporation’s sole benefit and no royalty will be due to me as a result of the Corporation’s efforts to commercialize or\nmarket any such Invention.\nb. Inventions Retained and Licensed. I have attached hereto as Exhibit A, a list describing all inventions, original works\nof authorship, developments, improvements, and trade secrets which were made by me prior to my employment with the\nCorporation (“Prior Inventions”), which belong to me and are not assigned to the Corporation hereunder. If no such list is attached, I\nrepresent that there are no such Prior Inventions. I will not incorporate, or permit to be incorporated, any Prior Invention owned by\nme or in which I have an interest into a Corporation product, process or machine without the Corporation’s prior written consent.\nNotwithstanding the foregoing sentence, if, in the course of my employment with the Corporation, I incorporate into a Corporation\nproduct, process or machine a Prior Invention owned by me or in which I have an interest, the Corporation is hereby granted and\nshall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell such\nPrior Invention as part of or in connection with such product, process or machine.\nc. Patent and Copyright Registrations. I will assist the Corporation, or its designee, at the Corporation’s expense, in\nevery proper way to secure the Corporation’s rights in the Inventions and any copyrights, patents, mask work rights or other\nintellectual property rights relating thereto, including, but not limited to, the disclosure to the Corporation of all pertinent\ninformation and data with respect thereto, the execution of all applications, specifications, oaths, assignments and all other\ninstruments which the Corporation shall deem necessary in order to apply for and obtain such rights and in order to assign and\nconvey to the Corporation, its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such\nInventions, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto. My obligation to\nexecute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after my employment\nends for any reason and/or after the termination of this Agreement. If the Corporation is unable because of my mental or physical\nincapacity or for any other reason to secure my signature to apply for or to pursue any application for any United States or foreign\npatents or copyright registrations covering Inventions or original works of authorship assigned to the Corporation as above, then I\nhereby irrevocably designate and appoint the Corporation and its duly authorized officers and agents as my agent and attorney in\nfact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to\nfurther the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if\nexecuted by me.\nd. Exception to Assignments. I understand that if I am an employee in Illinois, Kansas, North Carolina, Utah or\nMinnesota, I should refer to Exhibit B (incorporated herein for all purposes) for important limitations on the scope of the provisions\nof this Agreement concerning assignment of Inventions. I will advise the Corporation promptly in writing of any inventions that I\nbelieve meet the criteria in Exhibit B and that are not otherwise disclosed on Exhibit A.\n7. Cooperation.\na. Inthe event that I receive a subpoena, deposition notice, interview request, or other process or order to testify or\nproduce Confidential Information or any other information or property of the Corporation, I shall promptly: (a) notify the\nCorporation of the item, document, or information sought by such subpoena, deposition notice, interview request, or other process\nor order; (b) furnish the Corporation with a copy of said subpoena, deposition notice, interview request, or other process or order;\nand (c) provide reasonable cooperation with respect to any procedure that the Corporation may initiate to protect Confidential\nInformation or other interests. If the Corporation objects to the subpoena, deposition notice, interview request, process, or order, I\nshall cooperate to ensure that there shall be no disclosure until the court or other applicable entity has ruled upon the objection, and\nthen only in accordance with the ruling so made. If no such objection is made despite a reasonable opportunity to do so, I shall be\nentitled to comply with the subpoena, deposition, notice, interview request, or other process or order provided that I have fulfilled\nthe above obligations.\nb. Iwill cooperate fully with the Corporation, its affiliates, and their legal counsel in connection with any action,\nproceeding, or dispute arising out of matters with which I was directly or indirectly involved while serving as an employee of the\nCorporation, its predecessors, subsidiaries or affiliates. This cooperation shall include, but shall not be limited to, meeting with, and\nproviding information to, the Corporation and its legal counsel, maintaining the confidentiality of any past or future privileged\ncommunications with the Corporation’s legal counsel (outside and in-house), and making myself available to testify truthfully by\naffidavit, in depositions, or in any other forum on behalf of the Corporation. The Corporation agrees to reimburse me for any\nreasonable and necessary out-of-pocket costs associated with my cooperation.\n8. Limitation on Restrictions. Nothing in this Agreement is intended to or shall interfere with my right to file charges or\nparticipate in a proceeding with any appropriate federal, state or local government agency, including the Equal Employment\nOpportunity Commission or the National Labor Relations Board, or to prohibit me from communicating or cooperating with any\nsuch agency in its investigation.\n9. Eligibility for Severance Pay. If my employment with the Corporation terminates under circumstances in which I am\neligible for severance under the Corporation’s Severance Plan for Non-Store Employees (the “Severance Plan”), the Corporation\nwill offer me severance in accordance with the Severance Plan and the length of the Non-Competition Period will match the length\nof the severance period. I acknowledge that the Severance Plan sets forth pre-requisites I must meet in order to receive severance,\nincluding but not limited to execution of the Corporation’s standard separation agreement and release of claims. In the event that the\nCorporation fails to comply with its obligations to offer me severance according to the Severance Plan, then Section 2 of this\nAgreement shall be of no further effect. I agree that if I decline the Corporation’s offer of severance, I shall continue to be subject to\nthe restrictions in Section 2.\n10. Injunctive Relief. Any breach of this Agreement by me will cause irreparable damage to the Corporation and, in the\nevent of such breach, the Corporation shall have, in addition to any and all remedies of law, the right to an injunction, specific\nperformance or other equitable relief to prevent the violation of my obligations hereunder, and without providing a bond to the\nextent permitted by the applicable rules of civil procedure.\n11. No Right of Continued Employment. This Agreement does not create an obligation on the Corporation or any other\nperson or entity to continue my employment.\n12. No Conflicting Agreements. I represent that the performance of my job duties with the Corporation and my compliance\nwith all of the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information\nacquired by me in confidence or in trust prior to my employment by the Corporation.\n13. Entire Agreement/No Reliance/No Modifications. This Agreement and any compensation, benefit or equity plan or\nagreement referred to herein including the CVS Caremark Corporation Change in Control Agreement (“CIC Agreement”), to the\nextent those other agreements apply to me, set forth the entire agreement between the parties hereto and fully supersede any and all\nprior and/or supplemental understandings, whether written or oral, between the parties concerning the subject matter of this\nAgreement. Notwithstanding the foregoing, if I am a party to the CIC Agreement, then I understand that in the event of a Change in\nControl, as that term is defined in the CIC, Paragraph 2 of this Agreement shall be null and void. I agree and acknowledge that I\nhave not relied on any representations, promises or agreements of any kind in connection with my decision to accept the terms of\nthis Agreement, except for the representations, promises and agreements herein. Any modification to this Agreement must be made\nin writing and signed by me and the Corporation’s Chief Human Resources Officer or her authorized representative.\n14. No Waiver. Any waiver by the Corporation of a breach of any provision of this Agreement, or of any other similar\nagreement with any other current or former employee of the Corporation, shall not operate or be construed as a waiver of any\nsubsequent breach of such provision or any other provision hereof.\n15. Severability. The parties hereby agree that each provision herein shall be treated as a separate and independent clause,\nand the unenforceability of any one clause shall in no way impair the enforceability of any of the other clauses herein. Moreover, if\none or more of the provisions of this Agreement are for any reason held to be excessively broad as to scope, activity, duration,\nsubject or otherwise so as to be unenforceable at law, the parties consent to such provision or provisions being modified or limited\nby the appropriate judicial body (where allowed by applicable law), so as to be enforceable to the maximum extent compatible with\nthe applicable law.\n16. Survival of Employee’s Obligations. My obligations under this Agreement shall survive the termination of my\nemployment regardless of the manner of such termination and shall be binding upon my heirs, personal representatives, executors,\nadministrators and legal representatives.\n17. Corporation’s Right to Assign Agreement. The Corporation has the right to assign this Agreement to its successors\nand assigns without the need for further agreement or consent by me, and all covenants and agreements hereunder shall inure to the\nbenefit of and be enforceable by said successors or assigns.\n18. Non-Assignment. I shall not assign my rights and obligations under this Agreement, in whole or in part, whether by\noperation of law or otherwise, without the prior written consent of the Corporation, and any such assignment contrary to the terms\nhereof shall be null and void and of no force or effect.\n19. Governing Law; Headings. This Agreement shall be governed by and construed in accordance with the laws of the\nstate of Rhode Island. The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to\ncontrol or affect the meaning or construction of any provision of this Agreement.\n20. Tolling. In the event I violate one of the time-limited restrictions in this Agreement, I agree that the time period for such\nviolated restriction shall be extended by one day for each day I have violated the restriction, up to a maximum extension equal to\nthe length of the original period of the restricted covenant.\nIN WITNESS WHEREOF, the undersigned has executed this Agreement as a sealed instrument as of the date set forth below.\n/s/ Lisa Bisaccia\n \nLisa Bisaccia\nChief Human Resources Officer\nCVS Pharmacy, Inc.\n \nEmployee ID\nDate:\nEXHIBIT A\nList of Prior Inventions — See Section 6\nEXHIBIT B\nNotice Regarding Invention Assignment\nFor an employee residing in Illinois, Kansas, or North Carolina, you are hereby advised:\nNotice. No provision in this Agreement requires you to assign any of your rights to an invention for which no\nequipment, supplies, facility, or trade secret information of the Corporation was used and which was developed entirely on\nyour own time, unless (a) the invention relates (i) to the business of the Corporation or (ii) to the Corporation’s actual or\ndemonstrably anticipated research or development, or (b) the invention results from any work performed by you for the\nCorporation. Illinois 765ILCS1060/1-3, “Employees Patent Act”; Kansas Statutes Section 44-130; North Carolina General\nStatutes Article 10A, Chapter 66, Commerce and Business, Section 66-57.1.\nFor an employee residing in Utah, you are hereby advised:\nNotice. No provision in this Agreement requires you to assign any of your rights to an invention which was created\nentirely on your own time, and which is not (a) conceived, developed, reduced to practice, or created by you (i) within the\nscope of your employment with the Corporation, (ii) on the Corporation’s time, or (iii) with the aid, assistance, or use of any\nof the Corporation’s property, equipment, facilities, supplies, resources, or patents, trade secrets, know-how, technology,\nconfidential information, ideas, copy rights, trademarks and service marks and any and all rights, applications and\nregistrations relating to them, (b) the results of any work, services, or duties performed by you for the Corporation, (c) related\nto the industry or trade of the Corporation, or (d) related to the current or demonstrably anticipated business, research, or\ndevelopment of the Corporation. Utah Code Sections 34-39-1 through 34-39-3, “Employee Inventions Act.”\nFor an employee residing in Minnesota, you are hereby advised:\nNotice. No provision in this Agreement requires you to assign any of your rights to an invention for which no equipment,\nsupplies, facility, or trade secret information of the Corporation was used, and which was developed entirely on your own\ntime, and (a) which does not relate (i) directly to the business of the Corporation, or (ii) to the Corporation’s actual or\ndemonstrably anticipated research or development, or (b) which does not result from any work performed by you for the\nCorporation. Minnesota Statutes 13A Section 181.78.	EX-10.27 x1027formofenterprisenon-.htn EXHIBIT 10.27\nCVS Pharmacy, Inc.\nRestrictive Covenant Agreement\nI,\nenter into this Restrictive Covenant Agreement ("Agreement") with CVS\nPharmacy, Inc. ("CVS"), which is effective as of the date I sign the Agreement (the "Effective Date"). In consideration of the\nmutual promises in this Agreement, the parties agree as follows:\n1.\nConsideration for Agreement. In connection with my duties and responsibilities at CVS Caremark Corporation or one\nof its subsidiaries or affiliates (collectively, the "Corporation"), the Corporation will provide me with Confidential Information\nand/or access to the Corporation's customers and clients and the opportunity to develop and maintain relationships\nand\ngoodwill\nwith them. In addition, the Corporation has awarded me restricted stock units contingent on the execution of this Agreement and\ncompliance with its terms.\n2.\nNon-Competition. During my employment by the Corporation and during the Non-Competition Period following the\ntermination of my employment for any reason, I will not, directly or indirectly, engage in Competition or provide Consulting or\nAudit Services within the Restricted Area.\na. Competition. Engaging in "Competition" means providing services to a Competitor of the Corporation (whether as an\nemployee, independent contractor, consultant, principal, agent, partner, officer, director, investor, or shareholder, except as a\nshareholder of less than one percent of a publicly traded company) that: (i) are the same or similar in function or purpose to the\nservices I provided to the Corporation during the last two years of my employment by the Corporation, or (ii) will likely result\nin\nthe disclosure of Confidential Information to a Competitor or the use of Confidential Information on behalf of a Competitor. If a\nrepresentative of the Corporation, during my employment or the Non-Competition Period, requests that I identify the company or\nbusiness to which I will be or am providing services, or with which I will be or am employed, and requests that I provide\ninformation about the services that I am or will be providing to such entity, I shall provide the Corporation with a written statement\ndetailing the identity of the entity and the nature of the services that I am or will be providing to such entity with sufficient detail to\nallow the Corporation to independently assess whether I am or will be in violation of this Agreement. Such statement shall be\ndelivered to the Corporation's Chief Human Resources Officer or her authorized delegate via personal delivery or overnight\ndelivery within five calendar days of my receipt of such request.\nb. Competitor. A "Competitor" for purposes of this Agreement shall mean any person, corporation or other entity that\ncompetes with one or more of the business offerings of the Corporation. As of the Effective Date, the Corporation's business\nofferings include: (i) pharmacy benefits management ("PBM"), including: (a) the administration of pharmacy benefits for\nbusinesses, government agencies and health plans; (b) mail order pharmacy; (c) specialty pharmacy, including but not limited to\ninfusion and related services; (d) Medicare Part D services; (ii) retail, which includes the sale of prescription drugs, over-the-counter\nmedications, beauty products and cosmetics, photo finishing, seasonal merchandise, greeting cards, convenience foods and other\nproduct lines that are sold by the Corporation's retail division; and (iii) retail health care ("MinuteClinic"). A person or entity shall\nnot be considered a retail Competitor if such entity derives annual gross revenues from its business in an amount that is less than 5%\nof the Corporation's gross revenues from its retail business during its most recently completed fiscal year. The Parties acknowledge\nthat both the Corporation's products and services and the entities\nthat compete with the Corporation's products and services evolve and that an entity will be considered a Competitor if it provides\nproducts or services competitive with the products and services provided by the Corporation within the last two years of your\nemployment.\nGiven my role in the Corporation, I agree to this enterprise-wide definition of non-competition that will prevent me from\nproviding services to the Corporation's PBM, retail and MinuteClinic Competitors during the relevant time period.\nC. Consulting or Audit Services. "Consulting or Audit Services" shall mean any activity that involves providing audit\nreview or other consulting or advisory services with respect to any relationship or prospective relationship between the Corporation\nand any third party, including but not limited to PBM clients, suppliers or vendors and that is likely to result in the use or disclosure\nof Confidential Information.\nd. Non-Competition Period. The "Non-Competition Period" shall be the period of 18 months following the termination\nof my employment with the Corporation for any reason.\ne. Restricted Area. "Restricted Area" refers to those states within the United States in which the Corporation conducts its\nbusiness, as well as the District of Columbia and Puerto Rico. To the extent I worked on international projects in Brazil and/or\nIreland or other countries where the Corporation may conduct business, the Restricted Area includes those countries and\nprospective countries.\n3.\nNon-Solicitation. During the Non-Solicitation Period, which shall be 18 months following the termination of my\nemployment with the Corporation for any reason, I will not, unless a duly authorized officer of the Corporation gives me written\nauthorization to do so:\na.\ninterfere with the Corporation's relationship with its Business Partners by soliciting or communicating (regardless\nof who initiates the communication) with a Business Partner to: (i) induce or encourage the Business Partner to stop doing business\nor reduce its business with the Corporation, or (ii) buy a product or service that competes with a product or service offered by the\nCorporation's business. "Business Partner" means: a customer (person or entity), prospective customer (person or entity), supplier,\nmanufacturer, broker, hospital, hospital system, and/or pharmaceutical company with whom the Corporation has a business\nrelationship and with which I had business-related contact or dealings, or about which I received Confidential Information, in the\ntwo years prior to the termination of my employment with the Corporation. A Business Partner does not include a customer,\nsupplier, manufacturer, broker, hospital, hospital system, pharmaceutical company that has fully and finally ceased doing any\nbusiness\nwith the Corporation independent of any conduct or communications by me or breach of this Agreement. Nothing in this\nParagraph 3(a) shall prevent me from working as a staff pharmacist or in another retail position wherein I would be providing or\nselling prescriptions or other products directly to consumers.\nb.\nwork on a Corporation account on behalf of a Business Partner or serve as the representative of a Business\nPartner for the Corporation.\nC.\ninterfere with the Corporation's relationship with any employee or contractor of the Corporation by: (i) soliciting\nor communicating with the employee or contractor to induce or encourage him or her to leave the Corporation's employ or\nengagement (regardless of who first initiates the communication); (ii) helping another person or entity evaluate such employee\nor\ncontractor as an\n2\nemployment or contractor candidate; or (iii) otherwise helping any person or entity hire an employee or contractor away from the\nCorporation.\n4.\nNon-Disclosure of Confidential Information.\na. Subject to Section 7 below, I will not at any time, whether during or after the termination of my employment, disclose\nto any person or entity any of the Corporation's Confidential Information, except as may be appropriately required in the ordinary\ncourse\nof\nperforming\nmy\nduties\nas\nan\nemployee\nof\nthe\nCorporation.\nThe\nCorporation's\nConfidential\nInformation\nincludes\nbut\nis\nnot\nlimited to the following non-public information: trade secrets; computer code generated or developed by the Corporation; software\nor programs and related documentation; strategic compilations and analysis; strategic processes; business or financial methods,\npractices and plans; non-public costs and prices; operating margins; marketing, merchandising and selling techniques and\ninformation; customer lists; details of customer agreements; pricing arrangements with drug manufacturers, including but not\nlimited to any discounts and/or rebates; pharmacy reimbursement rates; expansion strategies; real estate strategies; operating\nstrategies; sources of supply; patient records; and confidential information of third parties which is given to the Corporation\npursuant to an obligation or agreement to keep such information confidential (collectively, "Confidential Information"). I shall not\nuse\nor\nattempt\nto\nuse\nany\nConfidential\nInformation\non\nbehalf\nof\nany\nperson\nor\nentity\nother\nthan\nthe\nCorporation,\nor\nin\nany\nmanner\nwhich may injure or cause loss or may be calculated to injure or cause loss, whether directly or indirectly, to the Corporation. For\nemployees residing in Connecticut, these restrictions on use or disclosure of Confidential Information will only apply for three\n(3)\nyears after the end of my employment where information that does not qualify as a trade secret is concerned; however, the\nrestrictions will continue apply to trade secret information for as long as the information at issue remains qualified as a trade secret.\nb. During my employment, I shall not make, use, or permit to be used, any materials of any nature relating to any matter\nwithin the scope of the business of the Corporation or concerning any of its dealings or affairs other than for the benefit of the\nCorporation. I shall not, after the termination of my employment, use or permit to be used any such materials and shall return same\nin accordance with Section 5 below.\n5.\nOwnership and Return of the Corporation's Property. On or before my final date of employment with the\nCorporation, I shall return to the Corporation all property of the Corporation in my possession, custody or control, including but not\nlimited to the originals and copies of any information provided to or acquired by me in connection with the performance of my\nduties for the Corporation, such as files, correspondence, communications, memoranda, e-mails, slides, records, and all other\ndocuments, no matter how produced or reproduced, all computer equipment, communication devices (including but not limited\nto\nany mobile phone, BlackBerry or other portable digital assistant or device), computer programs and/or files, and all office keys and\naccess cards. I agree that all the items described in this Section are the sole property of the Corporation.\n6.\nRights to Inventions, Works.\na. Assignment of Inventions. All inventions, original works of authorship, developments, concepts, improvements,\ndesigns, discoveries, ideas, trademarks or trade secrets, whether patentable or otherwise protectable under similar law, made,\nconceived or developed by me, whether alone or jointly with others, from the date of my initial employment by the Corporation and\ncontinuing until the end of any period during which I am employed by the Corporation, relating or pertaining in any way to my\nemployment with or the business of the Corporation (collectively referred to as "Inventions") shall be\n3\npromptly disclosed in writing to the Corporation. I hereby assign to the Corporation, or its designee, all of my rights, title and\ninterest to such Inventions. All original works of authorship which are made by me (solely or jointly with others) within the scope\nof and during the period of my employment with the Corporation and which are protectable by copyright are "works made for hire,"\nas that term is defined in the United States Copyright Act and as such are the sole property of the Corporation. The decision whether\nto commercialize or market any Invention developed by me solely or jointly with others is within the Corporation's sole discretion\nand for the Corporation's sole benefit and no royalty will be due to me as a result of the Corporation's efforts to commercialize or\nmarket any such Invention.\nb. Inventions Retained and Licensed. I have attached hereto as Exhibit A, a list describing all inventions, original works\nof authorship, developments, improvements, and trade secrets which were made by me prior to my employment with the\nCorporation ("Prior Inventions"), which belong to me and are not assigned to the Corporation hereunder If no such list is attached,\nI\nrepresent that there are no such Prior Inventions. I will not incorporate, or permit to be incorporated, any Prior Invention owned by\nme or in which I have an interest into a Corporation product, process or machine without the Corporation's prior written consent.\nNotwithstanding the foregoing sentence, if, in the course of my employment with the Corporation, I incorporate into a Corporation\nproduct, process or machine a Prior Invention owned by me or in which I have an interest, the Corporation is hereby granted and\nshall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell such\nPrior Invention as part of or in connection with such product, process or machine.\nc. Patent and Copyright Registrations. I will assist the Corporation, or its designee, at the Corporation's expense, in\nevery proper way to secure the Corporation's rights in the Inventions and any copyrights, patents, mask work rights or other\nintellectual property rights relating thereto, including, but not limited to, the disclosure to the Corporation of all pertinent\ninformation and data with respect thereto, the execution of all applications, specifications, oaths, assignments and all other\ninstruments which the Corporation shall deem necessary in order to apply for and obtain such rights and in order to assign and\nconvey to the Corporation, its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such\nInventions, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto. My obligation to\nexecute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after my employment\nends\nfor\nany\nreason\nand/or\nafter\nthe\ntermination\nof\nthis\nAgreement.\nIf\nthe\nCorporation\nis\nunable\nbecause\nof\nmy\nmental\nor\nphysical\nincapacity or for any other reason to secure my signature to apply for or to pursue any application for any United States or foreign\npatents or copyright registrations covering Inventions or original works of authorship assigned to the Corporation as above, then\nI\nhereby irrevocably designate and appoint the Corporation and its duly authorized officers and agents as my agent and attorney in\nfact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to\nfurther the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as\nif\nexecuted by me.\nd. Exception to Assignments. I understand that if I am an employee in Illinois, Kansas, North Carolina, Utah or\nMinnesota, I should refer to Exhibit B (incorporated herein for all purposes) for important limitations on the scope of the provisions\nof this Agreement concerning assignment of Inventions. I will advise the Corporation promptly in writing of any inventions that I\nbelieve meet the criteria in Exhibit B and that are not otherwise disclosed on Exhibit A.\n4\n7.\nCooperation.\na.\nIn the event that I receive a subpoena, deposition notice, interview request, or other process or order to testify\nor\nproduce Confidentia Information or any other information or property of the Corporation, I shall promptly: (a) notify the\nCorporation of the item, document, or information sought by such subpoena, deposition notice, interview request, or other process\nor order; (b) furnish the Corporation with a copy of said subpoena, deposition notice, interview request, or other process or order;\nand (c) provide reasonable cooperation with respect to any procedure that the Corporation may initiate to protect Confidential\nInformation or other interests. If the Corporation objects to the subpoena, deposition notice, interview request, process, or order,\nI\nshall cooperate to ensure that there shall be no disclosure until the court or other applicable entity has ruled upon the objection, and\nthen only in accordance with the ruling so made. If no such objection is made despite a reasonable opportunity to do so, I shall be\nentitled to comply with the subpoena, deposition, notice, interview request, or other process or order provided that I have fulfilled\nthe above obligations.\nb. I will cooperate fully with the Corporation, its affiliates, and their legal counsel in connection with any action,\nproceeding, or dispute arising out of matters with which I was directly or indirectly involved while serving as an employee of the\nCorporation, its predecessors, subsidiaries or affiliates. This cooperation shall include, but shall not be limited to, meeting with, and\nproviding information to, the Corporation and its legal counsel, maintaining the confidentiality of any past or future privileged\ncommunications with the Corporation's legal counsel (outside and in-house), and making myself available to testify truthfully by\naffidavit, in depositions, or in any other forum on behalf of the Corporation. The Corporation agrees to reimburse me for any\nreasonable and necessary out-of-pocket costs associated with my cooperation.\n8.\nLimitation on Restrictions. Nothing in this Agreement is intended to or shall interfere with my right to file charges or\nparticipate in a proceeding with any appropriate federal, state or local government agency, including the Equal Employment\nOpportunity Commission or the National Labor Relations Board, or to prohibit me from communicating or cooperating with any\nsuch agency in its investigation.\n9.\nEligibility for Severance Pay. If my employment with the Corporation terminates under circumstances in which I am\neligible for severance under the Corporation's Severance Plan for Non-Store Employees (the "Severance Plan"), the Corporation\nwill offer me severance in accordance with the Severance Plan and the length of the Non-Competition Period will match the length\nof the severance period. I acknowledge that the Severance Plan sets forth pre-requisites I must meet in order to receive severance,\nincluding but not limited to execution of the Corporation's standard separation agreement and release of claims. In the event that the\nCorporation fails to comply with its obligations to offer me severance according to the Severance Plan, then Section 2 of this\nAgreement shall be of no further effect. I agree that if I decline the Corporation's offer of severance, I shall continue to be subject to\nthe restrictions in Section 2.\n10.\nInjunctive Relief. Any breach of this Agreement by me will cause irreparable damage to the Corporation and, in the\nevent of such breach, the Corporation shall have, in addition to any and all remedies of law, the right to an injunction, specific\nperformance or other equitable relief to prevent the violation of my obligations hereunder, and without providing a bond to the\nextent permitted by the applicable rules of civil procedure.\n11.\nNo Right of Continued Employment. This Agreement does not create an obligation on the Corporation or any other\nperson or entity to continue my employment.\n5\n12.\nNo Conflicting Agreements. I represent that the performance of my job duties with the Corporation and my compliance\nwith all of the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information\nacquired by me in confidence or in trust prior to my employment by the Corporation.\n13.\nEntire Agreement/No Reliance/No Modifications. This Agreement and any compensation, benefit or equity plan or\nagreement referred to herein including the CVS Caremark Corporation Change in Control Agreement ("CIC Agreement"), to the\nextent those other agreements apply to me, set forth the entire agreement between the parties hereto and fully supersede any and all\nprior and/or supplemental understandings, whether written or oral, between the parties concerning the subject matter of this\nAgreement. Notwithstanding the foregoing, if I am a party to the CIC Agreement, then I understand that in the event of a Change in\nControl, as that term is defined in the CIC, Paragraph 2 of this Agreement shall be null and void. I agree and acknowledge that I\nhave\nnot\nrelied on any representations, promises or agreements of any kind in connection with my decision to accept the terms\nof\nthis Agreement, except for the representations, promises and agreements herein. Any modification to this Agreement must be made\nin writing and signed by me and the Corporation's Chief Human Resources Officer or her authorized representative.\n14.\nNo Waiver. Any waiver by the Corporation of a breach of any provision of this Agreement, or of any other similar\nagreement with any other current or former employee of the Corporation, shall not operate or be construed as a waiver of any\nsubsequent breach of such provision or any other provision hereof.\n15.\nSeverability. The parties hereby agree that each provision herein shall be treated as a separate and independent clause,\nand the unenforceability of any one clause shall in no way impair the enforceability of any of the other clauses herein. Moreover, if\none or more of the provisions of this Agreement are for any reason held to be excessively broad as to scope, activity, duration,\nsubject or otherwise so as to be unenforceable at law, the parties consent to such provision or provisions being modified or limited\nby the appropriate judicial body (where allowed by applicable law), so as to be enforceable to the maximum extent compatible with\nthe applicable law.\n16.\nSurvival of Employee's Obligations. My obligations under this Agreement shall survive the termination of my\nemployment regardless of the manner of such termination and shall be binding upon my heirs, personal representatives, executors,\nadministrators and legal representatives.\n17.\nCorporation's Right to Assign Agreement. The Corporation has the right to assign this Agreement to its successors\nand assigns without the need for further agreement or consent by me, and all covenants and agreements hereunder shall inure to the\nbenefit of and be enforceable by said successors or assigns.\n18.\nNon-Assignment. I shall not assign my rights and obligations under this Agreement, in whole or in part, whether by\noperation of law or otherwise, without the prior written consent of the Corporation, and any such assignment contrary to the terms\nhereof shall be null and void and of no force or effect.\n19.\nGoverning Law; Headings. This Agreement shall be governed by and construed in accordance with the laws of the\nstate of Rhode Island. The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to\ncontrol or affect the meaning or construction of any provision of this Agreement.\n6\n20.\nTolling. In the event I violate one of the time-limited restrictions in this Agreement, I agree that the time period for such\nviolated restriction shall be extended by one day for each day I have violated the restriction, up to a maximum extension equal to\nthe length of the original period of the restricted covenant.\nIN WITNESS WHEREOF, the undersigned has executed this Agreement as a sealed instrument as of the date set forth below.\n/s/ Lisa Bisaccia\nLisa Bisaccia\nChief Human Resources Officer\nCVS Pharmacy, Inc.\nEmployee ID\nDate:\n7\nEXHIBIT A\nList of Prior Inventions - See Section 6\n8\nEXHIBIT B\nNotice Regarding Invention Assignment\n1.\nFor an employee residing in Illinois, Kansas, or North Carolina, you are hereby advised:\nNotice. No provision in this Agreement requires you to assign any of your rights to an invention for which no\nequipment, supplies, facility, or trade secret information of the Corporation was used and which was developed entirely on\nyour own time, unless (a) the invention relates (i) to the business of the Corporation or (ii) to the Corporation's actual or\ndemonstrably anticipated research or development, or (b) the invention results from any work performed by you for the\nCorporation. Illinois 765ILCS1060/1-3, "Employees Patent Act"; Kansas Statutes Section 44-130; North Carolina General\nStatutes Article 10A, Chapter 66, Commerce and Business, Section 66-57.1.\n2.\nFor an employee residing in Utah, you are hereby advised:\nNotice. No provision in this Agreement requires you to assign any of your rights to an invention which was created\nentirely on your own time, and which is not (a) conceived, developed, reduced to practice, or created by you (i) within the\nscope of your employment with the Corporation, (ii) on the Corporation's time, or (iii) with the aid, assistance, or use of any\nof the Corporation's property, equipment, facilities, supplies, resources, or patents, trade secrets, know-how, technology,\nconfidential information, ideas, copy rights, trademarks and service marks and any and all rights, applications and\nregistrations relating to them, (b) the results of any work, services, or duties performed by you for the Corporation, (c) related\nto the industry or trade of the Corporation, or (d) related to the current or demonstrably anticipated business, research, or\ndevelopment of the Corporation. Utah Code Sections 34-39-1 through 34-39-3, "Employee Inventions Act."\n3.\nFor an employee residing in Minnesota, you are hereby advised:\nNotice. No provision in this Agreement requires you to assign any of your rights to an invention for which no equipment,\nsupplies, facility, or trade secret information of the Corporation was used, and which was developed entirely on your own\ntime, and (a) which does not relate (i) directly to the business of the Corporation, or (ii) to the Corporation's actual or\ndemonstrably anticipated research or development, or (b) which does not result from any work performed by you for the\nCorporation. Minnesota Statutes 13A Section 181.78.\n9	EX-10 .27 7 ex1027formofenterprisenon- . htm EXHIBIT 10.27\nCVS Pharmacy, Inc.\nRestrictive Covenant Agreement\nI, _____________________________________, enter into this Restrictive Covenant Agreement (“Agreement”) with CVS\nPharmacy, Inc. (“CVS”), which is effective as of the date I sign the Agreement (the “Effective Date”). In consideration of the\nmutual promises in this Agreement, the parties agree as follows:\n1.\nConsideration for Agreement. In connection with my duties and responsibilities at CVS Caremark Corporation or one\nof its subsidiaries or affiliates (collectively, the “Corporation”), the Corporation will provide me with Confidential Information\nand/or access to the Corporation’s customers and clients and the opportunity to develop and maintain relationships and goodwill\nwith them. In addition, the Corporation has awarded me restricted stock units contingent on the execution of this Agreement and\ncompliance with its terms.\n2.\nNon-Competition. During my employment by the Corporation and during the Non-Competition Period following the\ntermination of my employment for any reason, I will not, directly or indirectly, engage in Competition or provide Consulting or\nAudit Services within the Restricted Area.\na. Competition. Engaging in “Competition” means providing services to a Competitor of the Corporation (whether as an\nemployee, independent contractor, consultant, principal, agent, partner, officer, director, investor, or shareholder, except as a\nshareholder of less than one percent of a publicly traded company) that: (i) are the same or similar in function or purpose to the\nservices I provided to the Corporation during the last two years of my employment by the Corporation, or (ii) will likely result in\nthe disclosure of Confidential Information to a Competitor or the use of Confidential Information on behalf of a Competitor. If a\nrepresentative of the Corporation, during my employment or the Non-Competition Period, requests that I identify the company or\nbusiness to which I will be or am providing services, or with which I will be or am employed, and requests that I provide\ninformation about the services that I am or will be providing to such entity, I shall provide the Corporation with a written statement\ndetailing the identity of the entity and the nature of the services that I am or will be providing to such entity with sufficient detail to\nallow the Corporation to independently assess whether I am or will be in violation of this Agreement. Such statement shall be\ndelivered to the Corporation’s Chief Human Resources Officer or her authorized delegate via personal delivery or overnight\ndelivery within five calendar days of my receipt of such request.\nb. Competitor. A “Competitor” for purposes of this Agreement shall mean any person, corporation or other entity that\ncompetes with one or more of the business offerings of the Corporation. As of the Effective Date, the Corporation’s business\nofferings include: (i) pharmacy benefits management (“PBM”), including: (a) the administration of pharmacy benefits for\nbusinesses, government agencies and health plans; (b) mail order pharmacy; (c) specialty pharmacy, including but not limited to\ninfusion and related services; (d) Medicare Part D services; (ii) retail, which includes the sale of prescription drugs, over-the-counter\nmedications, beauty products and cosmetics, photo finishing, seasonal merchandise, greeting cards, convenience foods and other\nproduct lines that are sold by the Corporation’s retail division; and (iii) retail health care (“MinuteClinic”). A person or entity shall\nnot be considered a retail Competitor if such entity derives annual gross revenues from its business in an amount that is less than 5%\nof the Corporation’s gross revenues from its retail business during its most recently completed fiscal year. The Parties acknowledge\nthat both the Corporation’s products and services and the entities\nthat compete with the Corporation’s products and services evolve and that an entity will be considered a Competitor if it provides\nproducts or services competitive with the products and services provided by the Corporation within the last two years of your\nemployment.\nGiven my role in the Corporation, I agree to this enterprise-wide definition of non-competition that will prevent me from\nproviding services to the Corporation’s PBM, retail and MinuteClinic Competitors during the relevant time period.\nc. Consulting or Audit Services. “Consulting or Audit Services” shall mean any activity that involves providing audit\nreview or other consulting or advisory services with respect to any relationship or prospective relationship between the Corporation\nand any third party, including but not limited to PBM clients, suppliers or vendors and that is likely to result in the use or disclosure\nof Confidential Information.\nd. Non-Competition Period. The “Non-Competition Period” shall be the period of 18 months following the termination\nof my employment with the Corporation for any reason.\ne. Restricted Area. “Restricted Area” refers to those states within the United States in which the Corporation conducts its\nbusiness, as well as the District of Columbia and Puerto Rico. To the extent I worked on international projects in Brazil and/or\nIreland or other countries where the Corporation may conduct business, the Restricted Area includes those countries and\nprospective countries.\n3.\nNon-Solicitation. During the Non-Solicitation Period, which shall be 18 months following the termination of my\nemployment with the Corporation for any reason, I will not, unless a duly authorized officer of the Corporation gives me written\nauthorization to do so:\na.\ninterfere with the Corporation’s relationship with its Business Partners by soliciting or communicating (regardless\nof who initiates the communication) with a Business Partner to: (i) induce or encourage the Business Partner to stop doing business\nor reduce its business with the Corporation, or (ii) buy a product or service that competes with a product or service offered by the\nCorporation’s business. “Business Partner” means: a customer (person or entity), prospective customer (person or entity), supplier,\nmanufacturer, broker, hospital, hospital system, and/or pharmaceutical company with whom the Corporation has a business\nrelationship and with which I had business-related contact or dealings, or about which I received Confidential Information, in the\ntwo years prior to the termination of my employment with the Corporation. A Business Partner does not include a customer,\nsupplier, manufacturer, broker, hospital, hospital system, pharmaceutical company that has fully and finally ceased doing any\nbusiness with the Corporation independent of any conduct or communications by me or breach of this Agreement. Nothing in this\nParagraph 3(a) shall prevent me from working as a staff pharmacist or in another retail position wherein I would be providing or\nselling prescriptions or other products directly to consumers.\nb.\nwork on a Corporation account on behalf of a Business Partner or serve as the representative of a Business\nPartner for the Corporation.\nc.\ninterfere with the Corporation’s relationship with any employee or contractor of the Corporation by: (i) soliciting\nor communicating with the employee or contractor to induce or encourage him or her to leave the Corporation’s employ or\nengagement (regardless of who first initiates the communication); (ii) helping another person or entity evaluate such employee or\ncontractor as an\n2\nemployment or contractor candidate; or (iii) otherwise helping any person or entity hire an employee or contractor away from the\nCorporation.\n4.\nNon-Disclosure of Confidential Information.\na. Subject to Section 7 below, I will not at any time, whether during or after the termination of my employment, disclose\nto any person or entity any of the Corporation’s Confidential Information, except as may be appropriately required in the ordinary\ncourse of performing my duties as an employee of the Corporation. The Corporation’s Confidential Information includes but is not\nlimited to the following non-public information: trade secrets; computer code generated or developed by the Corporation; software\nor programs and related documentation; strategic compilations and analysis; strategic processes; business or financial methods,\npractices and plans; non-public costs and prices; operating margins; marketing, merchandising and selling techniques and\ninformation; customer lists; details of customer agreements; pricing arrangements with drug manufacturers, including but not\nlimited to any discounts and/or rebates; pharmacy reimbursement rates; expansion strategies; real estate strategies; operating\nstrategies; sources of supply; patient records; and confidential information of third parties which is given to the Corporation\npursuant to an obligation or agreement to keep such information confidential (collectively, “Confidential Information”). I shall not\nuse or attempt to use any Confidential Information on behalf of any person or entity other than the Corporation, or in any manner\nwhich may injure or cause loss or may be calculated to injure or cause loss, whether directly or indirectly, to the Corporation. For\nemployees residing in Connecticut, these restrictions on use or disclosure of Confidential Information will only apply for three (3)\nyears after the end of my employment where information that does not qualify as a trade secret is concerned; however, the\nrestrictions will continue apply to trade secret information for as long as the information at issue remains qualified as a trade secret.\nb. During my employment, I shall not make, use, or permit to be used, any materials of any nature relating to any matter\nwithin the scope of the business of the Corporation or concerning any of its dealings or affairs other than for the benefit of the\nCorporation. I shall not, after the termination of my employment, use or permit to be used any such materials and shall return same\nin accordance with Section 5 below.\n5.\nOwnership and Return of the Corporation’s Property. On or before my final date of employment with the\nCorporation, I shall return to the Corporation all property of the Corporation in my possession, custody or control, including but not\nlimited to the originals and copies of any information provided to or acquired by me in connection with the performance of my\nduties for the Corporation, such as files, correspondence, communications, memoranda, e-mails, slides, records, and all other\ndocuments, no matter how produced or reproduced, all computer equipment, communication devices (including but not limited to\nany mobile phone, BlackBerry or other portable digital assistant or device), computer programs and/or files, and all office keys and\naccess cards. I agree that all the items described in this Section are the sole property of the Corporation.\n6.\nRights to Inventions, Works.\na. Assignment of Inventions. All inventions, original works of authorship, developments, concepts, improvements,\ndesigns, discoveries, ideas, trademarks or trade secrets, whether patentable or otherwise protectable under similar law, made,\nconceived or developed by me, whether alone or jointly with others, from the date of my initial employment by the Corporation and\ncontinuing until the end of any period during which I am employed by the Corporation, relating or pertaining in any way to my\nemployment with or the business of the Corporation (collectively referred to as “Inventions”) shall be\n3\npromptly disclosed in writing to the Corporation. I hereby assign to the Corporation, or its designee, all of my rights, title and\ninterest to such Inventions. All original works of authorship which are made by me (solely or jointly with others) within the scope\nof and during the period of my employment with the Corporation and which are protectable by copyright are “works made for hire,”\nas that term is defined in the United States Copyright Act and as such are the sole property of the Corporation. The decision whether\nto commercialize or market any Invention developed by me solely or jointly with others is within the Corporation’s sole discretion\nand for the Corporation’s sole benefit and no royalty will be due to me as a result of the Corporation’s efforts to commercialize or\nmarket any such Invention.\nb. Inventions Retained and Licensed. I have attached hereto as Exhibit A, a list describing all inventions, original works\nof authorship, developments, improvements, and trade secrets which were made by me prior to my employment with the\nCorporation (“Prior Inventions”), which belong to me and are not assigned to the Corporation hereunder. If no such list is attached, I\nrepresent that there are no such Prior Inventions. I will not incorporate, or permit to be incorporated, any Prior Invention owned by\nme or in which I have an interest into a Corporation product, process or machine without the Corporation’s prior written consent.\nNotwithstanding the foregoing sentence, if, in the course of my employment with the Corporation, I incorporate into a Corporation\nproduct, process or machine a Prior Invention owned by me or in which I have an interest, the Corporation is hereby granted and\nshall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell such\nPrior Invention as part of or in connection with such product, process or machine.\nc. Patent and Copyright Registrations. I will assist the Corporation, or its designee, at the Corporation’s expense, in\nevery proper way to secure the Corporation’s rights in the Inventions and any copyrights, patents, mask work rights or other\nintellectual property rights relating thereto, including, but not limited to, the disclosure to the Corporation of all pertinent\ninformation and data with respect thereto, the execution of all applications, specifications, oaths, assignments and all other\ninstruments which the Corporation shall deem necessary in order to apply for and obtain such rights and in order to assign and\nconvey to the Corporation, its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such\nInventions, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto. My obligation to\nexecute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after my employment\nends for any reason and/or after the termination of this Agreement. If the Corporation is unable because of my mental or physical\nincapacity or for any other reason to secure my signature to apply for or to pursue any application for any United States or foreign\npatents or copyright registrations covering Inventions or original works of authorship assigned to the Corporation as above, then I\nhereby irrevocably designate and appoint the Corporation and its duly authorized officers and agents as my agent and attorney in\nfact, to act for and in my behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to\nfurther the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if\nexecuted by me.\nd. Exception to Assignments. I understand that if I am an employee in Illinois, Kansas, North Carolina, Utah or\nMinnesota, I should refer to Exhibit B (incorporated herein for all purposes) for important limitations on the scope of the provisions\nof this Agreement concerning assignment of Inventions. I will advise the Corporation promptly in writing of any inventions that I\nbelieve meet the criteria in Exhibit B and that are not otherwise disclosed on Exhibit A.\n4\n7.\nCooperation.\na. In the event that I receive a subpoena, deposition notice, interview request, or other process or order to testify or\nproduce Confidential Information or any other information or property of the Corporation, I shall promptly: (a) notify the\nCorporation of the item, document, or information sought by such subpoena, deposition notice, interview request, or other process\nor order; (b) furnish the Corporation with a copy of said subpoena, deposition notice, interview request, or other process or order;\nand (c) provide reasonable cooperation with respect to any procedure that the Corporation may initiate to protect Confidential\nInformation or other interests. If the Corporation objects to the subpoena, deposition notice, interview request, process, or order, I\nshall cooperate to ensure that there shall be no disclosure until the court or other applicable entity has ruled upon the objection, and\nthen only in accordance with the ruling so made. If no such objection is made despite a reasonable opportunity to do so, I shall be\nentitled to comply with the subpoena, deposition, notice, interview request, or other process or order provided that I have fulfilled\nthe above obligations.\nb. I will cooperate fully with the Corporation, its affiliates, and their legal counsel in connection with any action,\nproceeding, or dispute arising out of matters with which I was directly or indirectly involved while serving as an employee of the\nCorporation, its predecessors, subsidiaries or affiliates. This cooperation shall include, but shall not be limited to, meeting with, and\nproviding information to, the Corporation and its legal counsel, maintaining the confidentiality of any past or future privileged\ncommunications with the Corporation’s legal counsel (outside and in-house), and making myself available to testify truthfully by\naffidavit, in depositions, or in any other forum on behalf of the Corporation. The Corporation agrees to reimburse me for any\nreasonable and necessary out-of-pocket costs associated with my cooperation.\n8.\nLimitation on Restrictions. Nothing in this Agreement is intended to or shall interfere with my right to file charges or\nparticipate in a proceeding with any appropriate federal, state or local government agency, including the Equal Employment\nOpportunity Commission or the National Labor Relations Board, or to prohibit me from communicating or cooperating with any\nsuch agency in its investigation.\n9.\nEligibility for Severance Pay. If my employment with the Corporation terminates under circumstances in which I am\neligible for severance under the Corporation’s Severance Plan for Non-Store Employees (the “Severance Plan”), the Corporation\nwill offer me severance in accordance with the Severance Plan and the length of the Non-Competition Period will match the length\nof the severance period. I acknowledge that the Severance Plan sets forth pre-requisites I must meet in order to receive severance,\nincluding but not limited to execution of the Corporation’s standard separation agreement and release of claims. In the event that the\nCorporation fails to comply with its obligations to offer me severance according to the Severance Plan, then Section 2 of this\nAgreement shall be of no further effect. I agree that if I decline the Corporation’s offer of severance, I shall continue to be subject to\nthe restrictions in Section 2.\n10.\nInjunctive Relief. Any breach of this Agreement by me will cause irreparable damage to the Corporation and, in the\nevent of such breach, the Corporation shall have, in addition to any and all remedies of law, the right to an injunction, specific\nperformance or other equitable relief to prevent the violation of my obligations hereunder, and without providing a bond to the\nextent permitted by the applicable rules of civil procedure.\n11.\nNo Right of Continued Employment. This Agreement does not create an obligation on the Corporation or any other\nperson or entity to continue my employment.\n5\n12.\nNo Conflicting Agreements. I represent that the performance of my job duties with the Corporation and my compliance\nwith all of the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information\nacquired by me in confidence or in trust prior to my employment by the Corporation.\n13.\nEntire Agreement/No Reliance/No Modifications. This Agreement and any compensation, benefit or equity plan or\nagreement referred to herein including the CVS Caremark Corporation Change in Control Agreement (“CIC Agreement”), to the\nextent those other agreements apply to me, set forth the entire agreement between the parties hereto and fully supersede any and all\nprior and/or supplemental understandings, whether written or oral, between the parties concerning the subject matter of this\nAgreement. Notwithstanding the foregoing, if I am a party to the CIC Agreement, then I understand that in the event of a Change in\nControl, as that term is defined in the CIC, Paragraph 2 of this Agreement shall be null and void. I agree and acknowledge that I\nhave not relied on any representations, promises or agreements of any kind in connection with my decision to accept the terms of\nthis Agreement, except for the representations, promises and agreements herein. Any modification to this Agreement must be made\nin writing and signed by me and the Corporation’s Chief Human Resources Officer or her authorized representative.\n14.\nNo Waiver. Any waiver by the Corporation of a breach of any provision of this Agreement, or of any other similar\nagreement with any other current or former employee of the Corporation, shall not operate or be construed as a waiver of any\nsubsequent breach of such provision or any other provision hereof.\n15.\nSeverability. The parties hereby agree that each provision herein shall be treated as a separate and independent clause,\nand the unenforceability of any one clause shall in no way impair the enforceability of any of the other clauses herein. Moreover, if\none or more of the provisions of this Agreement are for any reason held to be excessively broad as to scope, activity, duration,\nsubject or otherwise so as to be unenforceable at law, the parties consent to such provision or provisions being modified or limited\nby the appropriate judicial body (where allowed by applicable law), so as to be enforceable to the maximum extent compatible with\nthe applicable law.\n16.\nSurvival of Employee’s Obligations. My obligations under this Agreement shall survive the termination of my\nemployment regardless of the manner of such termination and shall be binding upon my heirs, personal representatives, executors,\nadministrators and legal representatives.\n17.\nCorporation’s Right to Assign Agreement. The Corporation has the right to assign this Agreement to its successors\nand assigns without the need for further agreement or consent by me, and all covenants and agreements hereunder shall inure to the\nbenefit of and be enforceable by said successors or assigns.\n18.\nNon-Assignment. I shall not assign my rights and obligations under this Agreement, in whole or in part, whether by\noperation of law or otherwise, without the prior written consent of the Corporation, and any such assignment contrary to the terms\nhereof shall be null and void and of no force or effect.\n19.\nGoverning Law; Headings. This Agreement shall be governed by and construed in accordance with the laws of the\nstate of Rhode Island. The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to\ncontrol or affect the meaning or construction of any provision of this Agreement.\n6\n20.\nTolling. In the event I violate one of the time-limited restrictions in this Agreement, I agree that the time period for such\nviolated restriction shall be extended by one day for each day I have violated the restriction, up to a maximum extension equal to\nthe length of the original period of the restricted covenant.\nIN WITNESS WHEREOF, the undersigned has executed this Agreement as a sealed instrument as of the date set forth below.\n__________________________\n/s/ Lisa Bisaccia\nLisa Bisaccia\nChief Human Resources Officer\n__________________________\nCVS Pharmacy, Inc.\nEmployee ID\nDate: _____________________\n7\nEXHIBIT A\nList of Prior Inventions – See Section 6\n8\nEXHIBIT B\nNotice Regarding Invention Assignment\n1. For an employee residing in Illinois, Kansas, or North Carolina, you are hereby advised:\nNotice. No provision in this Agreement requires you to assign any of your rights to an invention for which no\nequipment, supplies, facility, or trade secret information of the Corporation was used and which was developed entirely on\nyour own time, unless (a) the invention relates (i) to the business of the Corporation or (ii) to the Corporation’s actual or\ndemonstrably anticipated research or development, or (b) the invention results from any work performed by you for the\nCorporation. Illinois 765ILCS1060/1-3, “Employees Patent Act”; Kansas Statutes Section 44-130; North Carolina General\nStatutes Article 10A, Chapter 66, Commerce and Business, Section 66-57 .1.\n2. For an employee residing in Utah, you are hereby advised:\nNotice. No provision in this Agreement requires you to assign any of your rights to an invention which was created\nentirely on your own time, and which is not (a) conceived, developed, reduced to practice, or created by you (i) within the\nscope of your employment with the Corporation, (ii) on the Corporation’s time, or (iii) with the aid, assistance, or use of any\nof the Corporation’s property, equipment, facilities, supplies, resources, or patents, trade secrets, know-how, technology,\nconfidential information, ideas, copy rights, trademarks and service marks and any and all rights, applications and\nregistrations relating to them, (b) the results of any work, services, or duties performed by you for the Corporation, (c) related\nto the industry or trade of the Corporation, or (d) related to the current or demonstrably anticipated business, research, or\ndevelopment of the Corporation. Utah Code Sections 34-39 -1 through 34-39 -3, “Employee Inventions Act.”\n3. For an employee residing in Minnesota, you are hereby advised:\nNotice. No provision in this Agreement requires you to assign any of your rights to an invention for which no equipment,\nsupplies, facility, or trade secret information of the Corporation was used, and which was developed entirely on your own\ntime, and (a) which does not relate (i) directly to the business of the Corporation, or (ii) to the Corporation’s actual or\ndemonstrably anticipated research or development, or (b) which does not result from any work performed by you for the\nCorporation. Minnesota Statutes 13A Section 181.78 .\n9
+f9b58bc2953d789ffbd98878be20199d.pdf	effective_date jurisdiction party term	EX-99.(D)(2) 9 dex99d2.htm MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\nExhibit (d)(2)\nConfidential\nGILEAD SCIENCES, INC.\nMUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\nThis Mutual Confidential Disclosure Agreement (“Agreement”) is made effective as of May 19, 2006 (“Effective Date”) by and between Myogen,\na Delaware corporation with offices at 7575 West 103rd Ave, #102, Westminster, CO 80021 (“Company”), and Gilead Sciences, Inc., a Delaware\ncorporation with offices at 333 Lakeside Drive, Foster City, California 94404, USA (together with its affiliates and subsidiaries, “Gilead”), and shall\ngovern the disclosure by a party (“Discloser”) to the other party (“Recipient”) of certain of Discloser’s confidential and proprietary information for\nthe evaluation, negotiation and possible entry into a potential business relationship between the parties.\n1. The Confidential Information, as defined in Section 2, is being disclosed solely to enable Company and Gilead to evaluate, discuss, negotiate and\npossibly enter into a business transaction (the “Purpose”).\n2. “Confidential Information” means confidential or proprietary information of Discloser disclosed in oral, written or other tangible form or\notherwise learned by Recipient under this Agreement, that directly relates to the Purpose and should reasonably be believed to be confidential or\nproprietary to Discloser, including but not limited to Discloser’s: research, development, preclinical and clinical programs, data and results;\npharmaceutical or biologic candidates and products; inventions, works of authorship, trade secrets, processes, conceptions, formulas, patents, patent\napplications, and licenses; business, product, marketing, sales, scientific and technical strategies, programs and results, including costs and prices;\nsuppliers, manufacturers, customers, market data, personnel, and consultants; and other confidential or proprietary matters related to the Purpose.\n3. Recipient:\n(a) shall not use Confidential Information except for the Purpose;\n(b) will hold Confidential Information in strictest confidence and shall not disclose Confidential Information to others, except for its\nemployees or agents who require Confidential Information in order to carry out the Recipient’s obligations under this Agreement in relation to the\nPurpose and who are subject to binding obligations of confidentiality and restricted use at least as protective as those of this Agreement;\n(c) will protect the confidentiality of Confidential Information using at least the same level of efforts and measures used to protect its own\nconfidential information, and at least commercially reasonable efforts and measures, including without limitation limiting access to Confidential\nInformation commensurate with the Purpose under this Agreement; and\n(d) will notify Discloser as promptly as practicable of any unauthorized use or disclosure of Confidential Information by Recipient, its\nemployees or agents of which Recipient becomes aware.\nprovided, however, that the obligations of this Section 3 shall not apply to any Confidential Information that:\n(i) Recipient knew prior to learning it under this Agreement, as demonstrated by written records predating the date it was learned under\nthis Agreement;\n(ii) is now, or becomes in the future, publicly available information other than by an act or omission of Recipient;\n(iii) a third party discloses to Recipient, without any confidentiality obligations and without any breach of any direct or indirect\nobligation of confidentiality to Discloser, as shown by Recipient’s written records contemporaneous with such third party disclosure; or\n(iv) Recipient independently develops without use of or reference to Confidential Information, as demonstrated by Recipient’s\nindependent written records contemporaneous with such development.\n4. Notwithstanding other provisions of this Agreement, Recipient may disclose Confidential Information to the extent and to the persons or entities\nrequired under applicable governmental law, rule, regulation or order provided that Recipient (a) first gives prompt written notice of such disclosure\nrequirement to Discloser so as to enable Discloser to seek any limitations on or exemptions from such disclosure requirement and (b) reasonably\ncooperates at Discloser’s request in any such efforts by Discloser.\n-1-\nConfidential\n5. Upon either the completion of Recipient’s use of Confidential Information for the Purpose under this Agreement or Discloser’s request for any\nreason, Recipient will (a) immediately cease all use of Confidential Information and (b) promptly, return to Discloser or, if instructed by Discloser.\ndestroy all Confidential Information, including any copies, extracts, summaries, or derivative works containing Confidential Information, and certify\nin writing to Discloser the completion of such return and/or destruction, provided, however, that Recipient may retain one copy in its legal archives\nsolely for the purpose of monitoring Recipient’s surviving obligations under this Agreement.\n6. Discloser retains all right, title and interest in and to Confidential Information. This Agreement does not and shall not be construed to give\nRecipient any right or license by implication or otherwise to any Confidential Information or under any intellectual property or other rights owned by\nor licensed to Discloser. Neither party has any the obligation to continue discussions or negotiations or to enter into any transaction with the other\nparty, and either party may terminate discussions or negotiations at any time.\n7. Each party’s obligations under this Agreement as a Recipient shall expire five (5) years from the Effective Date.\n8. Recipient acknowledges that any actual or threatened breach of this Agreement may cause Discloser immediate and irreparable harm that cannot\nbe adequately compensated by monetary damages and it therefore agrees that Discloser shall not be required to demonstrate irreparable harm in\norder to seek or obtain injunctive relief for actual or threatened breach of this Agreement. In addition to any injunctive relief, Discloser may seek any\nother remedies available to it at law or equity.\n9. Any purported assignment or delegation by a party of this Agreement in whole or in part without the prior written consent of the other party shall\nbe void. This Agreement shall be binding upon the parties, their successors and their permitted assigns.\n10. This Agreement shall be interpreted and enforced in accordance with the laws of the State of California, regardless of any choice of law\nprinciples.\nThis Agreement is executed as of the Effective Date by the parties’ duly authorized representatives.\nMYOGEN, INC.\nGILEAD SCIENCES, INC.\nBy: /s/ Andrew D. Dickinson\nBy: /s/ John F. Milligan, Ph.D .\nName: Andrew D. Dickinson\nName: John F. Milligan, Ph.D.\nTitle: Vice President, General Counsel & Corporate Secretary\nTitle: EVP and CFO\n-2-	EX-99.(D)(2) 9 dex99d2.htm MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\nExhibit (d)(2)\nConfidential\nGILEAD SCIENCES, INC.\nMUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\nThis Mutual Confidential Disclosure Agreement (“Agreement”) is made effective as of May 19, 2006 (“Effective Date”) by and between Myogen,\na Delaware corporation with offices at 7575 West 103 Ave, #102, Westminster, CO 80021 (“Company™), and Gilead Sciences, Inc., a Delaware\ncorporation with offices at 333 Lakeside Drive, Foster City, California 94404, USA (together with its affiliates and subsidiaries, “Gilead”), and shall\ngovern the disclosure by a party (“Discloser™) to the other party (“Recipient”) of certain of Discloser’s confidential and proprietary information for\nthe evaluation, negotiation and possible entry into a potential business relationship between the parties.\n1. The Confidential Information, as defined in Section 2, is being disclosed solely to enable Company and Gilead to evaluate, discuss, negotiate and\npossibly enter into a business transaction (the “Purpose”).\n2. “Confidential Information” means confidential or proprietary information of Discloser disclosed in oral, written or other tangible form or\notherwise learned by Recipient under this Agreement, that directly relates to the Purpose and should reasonably be believed to be confidential or\nproprietary to Discloser, including but not limited to Discloser’s: research, development, preclinical and clinical programs, data and results;\npharmaceutical or biologic candidates and products; inventions, works of authorship, trade secrets, processes, conceptions, formulas, patents, patent\napplications, and licenses; business, product, marketing, sales, scientific and technical strategies, programs and results, including costs and prices;\nsuppliers, manufacturers, customers, market data, personnel, and consultants; and other confidential or proprietary matters related to the Purpose.\n3. Recipient:\n(a) shall not use Confidential Information except for the Purpose;\n(b) will hold Confidential Information in strictest confidence and shall not disclose Confidential Information to others, except for its\nemployees or agents who require Confidential Information in order to carry out the Recipient’s obligations under this Agreement in relation to the\nPurpose and who are subject to binding obligations of confidentiality and restricted use at least as protective as those of this Agreement;\n(c) will protect the confidentiality of Confidential Information using at least the same level of efforts and measures used to protect its own\nconfidential information, and at least commercially reasonable efforts and measures, including without limitation limiting access to Confidential\nInformation commensurate with the Purpose under this Agreement; and\n(d) will notify Discloser as promptly as practicable of any unauthorized use or disclosure of Confidential Information by Recipient, its\nemployees or agents of which Recipient becomes aware.\nprovided, however, that the obligations of this Section 3 shall not apply to any Confidential Information that:\n(i) Recipient knew prior to learning it under this Agreement, as demonstrated by written records predating the date it was learned under\nthis Agreement;\n(ii) is now, or becomes in the future, publicly available information other than by an act or omission of Recipient;\n(iii) a third party discloses to Recipient, without any confidentiality obligations and without any breach of any direct or indirect\nobligation of confidentiality to Discloser, as shown by Recipient’s written records contemporaneous with such third party disclosure; or\n(iv) Recipient independently develops without use of or reference to Confidential Information, as demonstrated by Recipient’s\nindependent written records contemporaneous with such development.\n4. Notwithstanding other provisions of this Agreement, Recipient may disclose Confidential Information to the extent and to the persons or entities\nrequired under applicable governmental law, rule, regulation or order provided that Recipient (a) first gives prompt written notice of such disclosure\nrequirement to Discloser so as to enable Discloser to seek any limitations on or exemptions from such disclosure requirement and (b) reasonably\ncooperates at Discloser’s request in any such efforts by Discloser.\n-1-\nConfidential\n5. Upon either the completion of Recipient’s use of Confidential Information for the Purpose under this Agreement or Discloser’s request for any\nreason, Recipient will (a) immediately cease all use of Confidential Information and (b) promptly, return to Discloser or, if instructed by Discloser.\ndestroy all Confidential Information, including any copies, extracts, summaries, or derivative works containing Confidential Information, and certify\nin writing to Discloser the completion of such return and/or destruction, provided, however, that Recipient may retain one copy in its legal archives\nsolely for the purpose of monitoring Recipient’s surviving obligations under this Agreement.\n6. Discloser retains all right, title and interest in and to Confidential Information. This Agreement does not and shall not be construed to give\nRecipient any right or license by implication or otherwise to any Confidential Information or under any intellectual property or other rights owned by\nor licensed to Discloser. Neither party has any the obligation to continue discussions or negotiations or to enter into any transaction with the other\nparty, and either party may terminate discussions or negotiations at any time.\n7. Each party’s obligations under this Agreement as a Recipient shall expire five (5) years from the Effective Date.\n8. Recipient acknowledges that any actual or threatened breach of this Agreement may cause Discloser immediate and irreparable harm that cannot\nbe adequately compensated by monetary damages and it therefore agrees that Discloser shall not be required to demonstrate irreparable harm in\norder to seek or obtain injunctive relief for actual or threatened breach of this Agreement. In addition to any injunctive relief, Discloser may seek any\nother remedies available to it at law or equity.\n9. Any purported assignment or delegation by a party of this Agreement in whole or in part without the prior written consent of the other party shall\nbe void. This Agreement shall be binding upon the parties, their successors and their permitted assigns.\n10. This Agreement shall be interpreted and enforced in accordance with the laws of the State of California, regardless of any choice of law\nprinciples.\nThis Agreement is executed as of the Effective Date by the parties’ duly authorized representatives.\nMYOGEN, INC. GILEAD SCIENCES, INC.\nBy: /s/ Andrew D. Dickinson By: /s/ John F. Milligan, Ph.D.\nName: Andrew D. Dickinson Name: John F. Milligan, Ph.D.\nTitle:  Vice President, General Counsel & Corporate Secretary Title: EVP and CFO\n_2-	EX-99.(D)(2) 9 dex99d2.htm MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\nExhibit (d)(2)\nConfidential\nGILEAD SCIENCES, INC.\nMUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\nThis Mutual Confidential Disclosure Agreement ("Agreement") is made effective as of May 19, 2006 ("Effective Date") by and between Myogen,\na Delaware corporation with offices at 7575 West 103rd Ave, #102, Westminster, CO 80021 ("Company"), and Gilead Sciences, Inc., a Delaware\ncorporation with offices at 333 Lakeside Drive, Foster City, California 94404, USA (together with its affiliates and subsidiaries, "Gilead"), and shall\ngovern the disclosure by a party ("Discloser") to the other party ("Recipient") of certain of Discloser's confidential and proprietary information for\nthe evaluation, negotiation and possible entry into a potential business relationship between the parties.\n1. The Confidential Information, as defined in Section 2, is being disclosed solely to enable Company and Gilead to evaluate, discuss, negotiate and\npossibly enter into a business transaction (the "Purpose").\n2. "Confidential Information" means confidential or proprietary information of Discloser disclosed in oral, written or other tangible form or\notherwise learned by Recipient under this Agreement, that directly relates to the Purpose and should reasonably be believed to be confidential or\nproprietary to Discloser, including but not limited to Discloser's: research, development, preclinical and clinical programs, data and results;\npharmaceutical or biologic candidates and products; inventions, works of authorship, trade secrets, processes, conceptions, formulas, patents, patent\napplications, and licenses; business, product, marketing, sales, scientific and technical strategies, programs and results, including costs and prices;\nsuppliers, manufacturers, customers, market data, personnel, and consultants; and other confidential or proprietary matters related to the Purpose.\n3. Recipient:\n(a) shall not use Confidential Information except for the Purpose;\n(b) will hold Confidential Information in strictest confidence and shall not disclose Confidentia Information to others, except for its\nemployees or agents who require Confidential Information in order to carry out the Recipient's obligations under this Agreement in relation to the\nPurpose and who are subject to binding obligations of confidentiality and restricted use at least as protective as those of this Agreement;\n(c) will protect the confidentiality of Confidential Information using at least the same level of efforts and measures used to protect its own\nconfidential information, and at least commercially reasonable efforts and measures, including without limitation limiting access to Confidential\nInformation commensurate with the Purpose under this Agreement; and\n(d) will notify Discloser as promptly as practicable of any unauthorized use or disclosure of Confidentia Information by Recipient, its\nemployees or agents of which Recipient becomes aware.\nprovided, however, that the obligations of this Section 3 shall not apply to any Confidential Information that:\n(i) Recipient knew prior to learning it under this Agreement, as demonstrated by written records predating the date it was learned under\nthis Agreement;\n(ii) is now, or becomes in the future, publicly available information other than by an act or omission of Recipient;\n(iii) a third party discloses to Recipient, without any confidentiality obligations and without any breach of any direct or indirect\nobligation of confidentiality to Discloser, as shown by Recipient's written records contemporaneous with such third party disclosure; or\n(iv) Recipient independently develops without use of or reference to Confidential Information, as demonstrated by Recipient's\nindependent written records contemporaneous with such development.\n4.\nNotwithstanding other provisions of this Agreement, Recipient may disclose Confidential Information to the extent and to the persons or entities\nrequired under applicable governmental law, rule, regulation or order provided that Recipient (a) first gives prompt written notice of such disclosure\nrequirement to Discloser so as to enable Discloser to seek any limitations on or exemptions from such disclosure requirement and (b) reasonably\ncooperates at Discloser's request in any such efforts by Discloser.\n1\nConfidential\n5. Upon either the completion of Recipient's use of Confidential Information for the Purpose under this Agreement or Discloser's request for any\nreason, Recipient will (a) immediately cease all use of Confidential Information and (b) promptly, return to Discloser or, if instructed by Discloser.\ndestroy all Confidential Information, including any copies, extracts, summaries, or derivative works containing Confidential Information, and certify\nin\nwriting to Discloser the completion of such return and/or destruction, provided, however, that Recipient may retain one copy in its legal archives\nsolely for the purpose of monitoring Recipient's surviving obligations under this Agreement.\n6. Discloser retains all right, title and interest in and to Confidential Information. This Agreement does not and shall not be construed to give\nRecipient any right or license by implication or otherwise to any Confidential Information or under any intellectual property or other rights owned by\nor\nlicensed to Discloser. Neither party has any the obligation to continue discussions or negotiations or to enter into any transaction with the other\nparty, and either party may terminate discussions or negotiations at any time.\n7. Each party's obligations under this Agreement as a Recipient shall expire five (5) years from the Effective Date.\n8. Recipient acknowledges that any actual or threatened breach of this Agreement may cause Discloser immediate and irreparable harm that cannot\nbe adequately compensated by monetary damages and it therefore agrees that Discloser shall not be required to demonstrate irreparable harm in\norder to seek or obtain injunctive relief for actual or threatened breach of this Agreement. In addition to any injunctive relief, Discloser may seek any\nother remedies available to it at law or equity.\n9. Any purported assignment or delegation by a party of this Agreement in whole or in part without the prior written consent of the other party shall\nbe void. This Agreement shall be binding upon the parties, their successors and their permitted assigns.\n10. This Agreement shall be interpreted and enforced in accordance with the laws of the State of California, regardless of any choice of law\nprinciples.\nThis Agreement is executed as of the Effective Date by the parties' duly authorized representatives.\nMYOGEN, INC.\nGILEAD SCIENCES, INC.\nBy:\n/s/ Andrew D. Dickinson\nBy:\n/s/ John F. Milligan, Ph.D.\nName: Andrew D. Dickinson\nName: John F. Milligan, Ph.D.\nTitle: Vice President, General Counsel & Corporate Secretary\nTitle: EVP and CFO\n2	EX-99.(D)(2) 9 dex99d2.htm MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\nExhibit (d)(2)\nConfidential\nGILEAD SCIENCES, INC.\nMUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT\nThis Mutual Confidential Disclosure Agreement (“Agreement”) is made effective as of May 19, 2006 (“Effective Date”) by and between Myogen,\na Delaware corporation with offices at 7575 West 103rd Ave, #102, Westminster, CO 80021 (“Company”), and Gilead Sciences, Inc., a Delaware\ncorporation with offices at 333 Lakeside Drive, Foster City, California 94404, USA (together with its affiliates and subsidiaries, “Gilead”), and shall\ngovern the disclosure by a party (“Discloser”) to the other party (“Recipient”) of certain of Discloser’s confidential and proprietary information for\nthe evaluation, negotiation and possible entry into a potential business relationship between the parties.\n1. The Confidential Information, as defined in Section 2, is being disclosed solely to enable Company and Gilead to evaluate, discuss, negotiate and\npossibly enter into a business transaction (the “Purpose”).\n2. “Confidential Information” means confidential or proprietary information of Discloser disclosed in oral, written or other tangible form or\notherwise learned by Recipient under this Agreement, that directly relates to the Purpose and should reasonably be believed to be confidential or\nproprietary to Discloser, including but not limited to Discloser’s: research, development, preclinical and clinical programs, data and results;\npharmaceutical or biologic candidates and products; inventions, works of authorship, trade secrets, processes, conceptions, formulas, patents, patent\napplications, and licenses; business, product, marketing, sales, scientific and technical strategies, programs and results, including costs and prices;\nsuppliers, manufacturers, customers, market data, personnel, and consultants; and other confidential or proprietary matters related to the Purpose.\n3. Recipient:\n(a) shall not use Confidential Information except for the Purpose;\n(b) will hold Confidential Information in strictest confidence and shall not disclose Confidential Information to others, except for its\nemployees or agents who require Confidential Information in order to carry out the Recipient’s obligations under this Agreement in relation to the\nPurpose and who are subject to binding obligations of confidentiality and restricted use at least as protective as those of this Agreement;\n(c) will protect the confidentiality of Confidential Information using at least the same level of efforts and measures used to protect its own\nconfidential information, and at least commercially reasonable efforts and measures, including without limitation limiting access to Confidential\nInformation commensurate with the Purpose under this Agreement; and\n(d) will notify Discloser as promptly as practicable of any unauthorized use or disclosure of Confidential Information by Recipient, its\nemployees or agents of which Recipient becomes aware.\nprovided, however, that the obligations of this Section 3 shall not apply to any Confidential Information that:\n(i) Recipient knew prior to learning it under this Agreement, as demonstrated by written records predating the date it was learned under\nthis Agreement;\n(ii) is now, or becomes in the future, publicly available information other than by an act or omission of Recipient;\n(iii) a third party discloses to Recipient, without any confidentiality obligations and without any breach of any direct or indirect\nobligation of confidentiality to Discloser, as shown by Recipient’s written records contemporaneous with such third party disclosure; or\n(iv) Recipient independently develops without use of or reference to Confidential Information, as demonstrated by Recipient’s\nindependent written records contemporaneous with such development.\n4. Notwithstanding other provisions of this Agreement, Recipient may disclose Confidential Information to the extent and to the persons or entities\nrequired under applicable governmental law, rule, regulation or order provided that Recipient (a) first gives prompt written notice of such disclosure\nrequirement to Discloser so as to enable Discloser to seek any limitations on or exemptions from such disclosure requirement and (b) reasonably\ncooperates at Discloser’s request in any such efforts by Discloser.\n-1-\nConfidential\n5. Upon either the completion of Recipient’s use of Confidential Information for the Purpose under this Agreement or Discloser’s request for any\nreason, Recipient will (a) immediately cease all use of Confidential Information and (b) promptly, return to Discloser or, if instructed by Discloser.\ndestroy all Confidential Information, including any copies, extracts, summaries, or derivative works containing Confidential Information, and certify\nin writing to Discloser the completion of such return and/or destruction, provided, however, that Recipient may retain one copy in its legal archives\nsolely for the purpose of monitoring Recipient’s surviving obligations under this Agreement.\n6. Discloser retains all right, title and interest in and to Confidential Information. This Agreement does not and shall not be construed to give\nRecipient any right or license by implication or otherwise to any Confidential Information or under any intellectual property or other rights owned by\nor licensed to Discloser. Neither party has any the obligation to continue discussions or negotiations or to enter into any transaction with the other\nparty, and either party may terminate discussions or negotiations at any time.\n7. Each party’s obligations under this Agreement as a Recipient shall expire five (5) years from the Effective Date.\n8. Recipient acknowledges that any actual or threatened breach of this Agreement may cause Discloser immediate and irreparable harm that cannot\nbe adequately compensated by monetary damages and it therefore agrees that Discloser shall not be required to demonstrate irreparable harm in\norder to seek or obtain injunctive relief for actual or threatened breach of this Agreement. In addition to any injunctive relief, Discloser may seek any\nother remedies available to it at law or equity.\n9. Any purported assignment or delegation by a party of this Agreement in whole or in part without the prior written consent of the other party shall\nbe void. This Agreement shall be binding upon the parties, their successors and their permitted assigns.\n10. This Agreement shall be interpreted and enforced in accordance with the laws of the State of California, regardless of any choice of law\nprinciples.\nThis Agreement is executed as of the Effective Date by the parties’ duly authorized representatives.\nMYOGEN, INC.\nGILEAD SCIENCES, INC.\nBy: /s/ Andrew D. Dickinson\nBy: /s/ John F. Milligan, Ph.D .\nName: Andrew D. Dickinson\nName: John F. Milligan, Ph.D.\nTitle: Vice President, General Counsel & Corporate Secretary\nTitle: EVP and CFO\n-2-
+fbf608b62ef498171b70fb7b36be61a0.pdf	effective_date jurisdiction party term	EX-10.3 6 dex103.htm NON COMPETITION, NON SOLICITATION AND NON DISCLOSURE\nExhibit 10.3\nNON-COMPETITION, NON-SOLICITATION, AND\nNON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into by and\namong First Community Bank Corporation of America, First Community Bank of America (collectively, “Employer”) and Clifton E. Tufts\n(“Employee”).\nWHEREAS, Employee serves as Employer’s Executive Vice President and in such capacity has: (i) access to Employer’s trade secrets and\nother valuable confidential business information; and (ii) substantial relationships with Employer’s existing and prospective customers and clients.\nNOW, THEREFORE, in consideration of Employer’s continued employment of Employee, and the grant of stock options and the severance\npayment described below, Employee hereby agrees to certain anti-competitive covenants contained herein.\nSECTION 1\nTERM OF AGREEMENT\nThis Agreement shall remain in effect for the period in which Employee remains employed by Employer and certain provisions will continue\nto remain in effect after Employee’s termination, as otherwise provided for in this Agreement. This Agreement may be terminated by Employer for\n“just cause,” which is defined to mean termination of Employee’s employment by Employer for Employee’s personal dishonesty (directly or\nindirectly) resulting in gain to, or personal enrichment of, Employee at the expense of Employer, insubordination, misconduct or conduct\nunbecoming a senior officer of a financial institution which could have a material negative reflection upon the Employer, breach of fiduciary duty,\nfailure to materially perform the duties required of his senior officer position with Employer, violation of a significant law, rule or regulation (other\nthan minor traffic violations or similar offenses), violation of a final cease-and-desist order, or personal default on indebtedness which is not\ncorrected within 30 days from the date of default.\nSECTION 2\nSEVERANCE PAYMENT\nIn the event Employer terminates Employee’s employment for any reason (other than “just cause” or illness or incapacity wherein Employee is\ncovered by disability insurance provided by Employer to all senior officers) Employer shall pay to Employee a severance payment of one year’s base\nsalary within five business days of such termination.\nSECTION 3\nSTOCK OPTIONS\nIn recognition of Employee’s contribution to Employer and Employee’s execution of this Agreement, Employer shall grant Employee stock\noptions to purchase 12,500 shares of common stock of First Community Bank Corporation of America. The per share price shall be the per share\nclosing price on the grant date (the date this agreement is executed by Employee, The stock options granted pursuant to this Agreement are non-\nqualified options, which shall vest immediately upon the date of grant and shall have a six-year term within which they may be exercised.\nSECTION 4\nAGREEMENT NOT TO COMPETE\nEmployee agrees that during the term of this Agreement and for a period of one year following Employee’s termination for any reason,\nEmployee shall not become employed, directly or indirectly, whether as an employee, independent contractor, consultant, or otherwise, with any\nfederally-insured financial institution, financial holding company, bank holding company, or other financial services provider, in which the\nemployment position is associated with lockbox activities or lockbox servicing, and which is located within 20 miles of any lockbox customer of\nEmployer within the State of Florida at the time of Employee’s termination of employment with Employer.\nSECTION 5\nAGREEMENT NOT TO SOLICIT\nEmployee further agrees that during the term of this Agreement and for a period of one year following Employee’s termination for any reason,\nEmployee shall not, directly or indirectly, solicit the business of any then current lockbox customer (both borrower and depositor) of Employer,\nregardless of whether or not Employee was responsible for generating such customer’s business for Employer. In addition, Employee agrees that\nduring the term of this Agreement and this provision, Employee shall not directly or indirectly solicit the employment of any then current employee\nof Employer.\nSECTION 6\nAGREEMENT NOT TO DISCLOSE\nDuring and after the term of this Agreement, Employee shall use his best efforts and utmost diligence to guard and protect all of the\nEmployer’s trade secrets (as defined in Section 688.002[4], Florida Statutes), and any other confidential business information. Employee shall not,\neither during or after the term of this Agreement, for any reason, use in any capacity, or divulge or disclose in any manner, to any person or entity,\nthe identity of Employer’s customers, methods of operation, marketing or promotional methods, processes, techniques, systems, formulas, programs,\ntrade secrets, or other confidential information relating to Employer’s business. Upon termination of Employee’s employment, for any reason,\nEmployee shall immediately return and deliver to Employer, all records and papers and all materials which bear trade secrets or other confidential\nbusiness information.\nSECTION 7\nREPRESENTATIONS AND ACKNOWLEDGMENTS OF EMPLOYEE\nEmployee hereby agrees that the duration of the anti-competitive covenants set forth in Sections 4, 5, and 6 of this Agreement are reasonable,\nand that their geographic scope is not unduly restrictive. Furthermore, Employee acknowledges that Employer has a legitimate business interest in\nenforcing the anti-competitive covenants contained in Sections 4, 5, and 6 of this Agreement, because of Employee’s access to valuable and\nconfidential information about Employer, as well as confidential information about Employer’s existing and prospective customers.\n-2-\nSECTION 8\nENFORCEMENT\nEmployer and Employee acknowledge and agree that money damages cannot fully compensate Employer in the event of Employee’s violation\nof the provisions of Sections 4, 5, or 6 of this Agreement, Thus, in the event of a breach of any of the provisions of Sections 4, 5, or 6 of this\nAgreement, Employee agrees that Employer, upon application to a court of competent jurisdiction, shall be entitled to an injunction restraining\nEmployee from any further breach of the terms or provisions of Sections 4, 5, or 6. Employee’s sole remedy, in the event of the wrongful entry of\nsuch injunction, shall be the dissolution of such injunction. Employee hereby waives any and all claims for damages by reason of the wrongful\nissuance of any such injunction.\nSECTION 9\nMODIFICATION AND WAIVER\nThis Agreement may not be modified or amended except as agreed to in writing by the parties hereto. No term or condition of this Agreement\nshall be deemed to have been waived, nor shall there be any estoppel against the enforcement of any provision of this Agreement, except by written\ninstrument of the party charged with such waiver or estoppel. No such written waiver shall be deemed a continuing waiver unless specifically stated\ntherein, and each such waiver shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or\ncondition for the future, or as to any act other than that specifically waived.\nSECTION 10\nATTORNEYS’ FEES\nIn the event of any proceeding occurring out of or involving this Agreement, the prevailing party shall be entitled to the recovery of reasonable\nattorneys’ fees, expenses, and costs, including fees and costs to enforce an award.\nSECTION 11\nSEVERABILITY AND REFORMATION\nThe invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement, which shall remain in foil force and effect. In the event a court of competent jurisdiction shall rule that any of the\nprovisions of Section 4, 5, or 6 is unenforceable due to their length, geographic area, or scope, Employer and Employee hereby request that such\ncourt reform the terms of those Sections so that they may be enforceable.\n-3-\nSECTION 12\nHEADINGS FOR REFERENCE ONLY\nThe headings of the Sections herein are included solely for convenience of reference and shall not control the meaning or the interpretation of\nany of the provisions of this Agreement.\nSECTION 13\nAPPLICABLE LAW\nThis Agreement shall be governed in all respects and be interpreted by and under the laws of the State of Florida, and venue for any action\nhereunder shall lie in Pinellas County, Florida.\nSECTION 14\nASSIGNMENT\nThis Agreement shall inure to the benefit of and be binding upon the Employee, and to the extent applicable, his heirs, assigns, executors, and\npersonal representatives, and to the Employer. This Agreement, however, may not be assigned by Employer to its successors, including, without\nlimitation, any person or entity that may acquire all, or substantially all, of Employer’s assets and business, or with or into which Employer may be\nconsolidated or merged (other than through an intra-company reorganization or merger), without the written consent of Employee, which may be\nwithheld for any reason. This provision shall apply in the event of any subsequent merger, consolidation, or transfer.\nSECTION 15\nNO CONTRACT OF EMPLOYMENT\nThis Agreement shall not, under any circumstances, be deemed to constitute an employment contract between Employer and Employee.\nNothing contained in this Agreement shall be deemed to give Employee the right to be retained in the service of Employer, or to interfere with the\nright of Employer to discharge Employee at any time.\n-4-\nIN WITNESS WHEREOF, Employer and Employee have duly executed this Agreement this 28 day of March, 2005.\nEMPLOYEE\n/s/ Clifton E. Tusfs\nClifton E. Tufts, Executive Vice President\nFIRST COMMUNITY BANK CORPORATION OF\nAMERICA\nBy: /s/ Kenneth P. Cherven\nKenneth P. Cherven\nPresident and Chief Executive Officer\nFIRST COMMUNITY BANK AMERICA\nBy: /s/ Kenneth P. Cherven\nKenneth P. Cherven\nPresident and Chief Executive Officer\n-5-\nth	EX-10.3 6 dex103.htm NON COMPETITION, NON SOLICITATION AND NON DISCLOSURE\nExhibit 10.3\nNON-COMPETITION, NON-SOLICITATION, AND\nNON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into by and\namong First Community Bank Corporation of America, First Community Bank of America (collectively, “Employer”) and Clifton E. Tufts\n(“Employee”).\nWHEREAS, Employee serves as Employer’s Executive Vice President and in such capacity has: (i) access to Employer’s trade secrets and\nother valuable confidential business information; and (ii) substantial relationships with Employer’s existing and prospective customers and clients.\nNOW, THEREFORE, in consideration of Employer’s continued employment of Employee, and the grant of stock options and the severance\npayment described below, Employee hereby agrees to certain anti-competitive covenants contained herein.\nSECTION 1\nTERM OF AGREEMENT\nThis Agreement shall remain in effect for the period in which Employee remains employed by Employer and certain provisions will continue\nto remain in effect after Employee’s termination, as otherwise provided for in this Agreement. This Agreement may be terminated by Employer for\n“just cause,” which is defined to mean termination of Employee’s employment by Employer for Employee’s personal dishonesty (directly or\nindirectly) resulting in gain to, or personal enrichment of, Employee at the expense of Employer, insubordination, misconduct or conduct\nunbecoming a senior officer of a financial institution which could have a material negative reflection upon the Employer, breach of fiduciary duty,\nfailure to materially perform the duties required of his senior officer position with Employer, violation of a significant law, rule or regulation (other\nthan minor traffic violations or similar offenses), violation of a final cease-and-desist order, or personal default on indebtedness which is not\ncorrected within 30 days from the date of default.\nSECTION 2\nSEVERANCE PAYMENT\nIn the event Employer terminates Employee’s employment for any reason (other than “just cause” or illness or incapacity wherein Employee is\ncovered by disability insurance provided by Employer to all senior officers) Employer shall pay to Employee a severance payment of one year’s base\nsalary within five business days of such termination.\nSECTION 3\nSTOCK OPTIONS\nIn recognition of Employee’s contribution to Employer and Employee’s execution of this Agreement, Employer shall grant Employee stock\noptions to purchase 12,500 shares of common stock of First Community Bank Corporation of America. The per share price shall be the per share\nclosing price on the grant date (the date this agreement is executed by Employee, The stock options granted pursuant to this Agreement are non-\nqualified options, which shall vest immediately upon the date of grant and shall have a six-year term within which they may be exercised.\nSECTION 4\nAGREEMENT NOT TO COMPETE\nEmployee agrees that during the term of this Agreement and for a period of one year following Employee’s termination for any reason,\nEmployee shall not become employed, directly or indirectly, whether as an employee, independent contractor, consultant, or otherwise, with any\nfederally-insured financial institution, financial holding company, bank holding company, or other financial services provider, in which the\nemployment position is associated with lockbox activities or lockbox servicing, and which is located within 20 miles of any lockbox customer of\nEmployer within the State of Florida at the time of Employee’s termination of employment with Employer.\nSECTION 5\nAGREEMENT NOT TO SOLICIT\nEmployee further agrees that during the term of this Agreement and for a period of one year following Employee’s termination for any reason,\nEmployee shall not, directly or indirectly, solicit the business of any then current lockbox customer (both borrower and depositor) of Employer,\nregardless of whether or not Employee was responsible for generating such customer’s business for Employer. In addition, Employee agrees that\nduring the term of this Agreement and this provision, Employee shall not directly or indirectly solicit the employment of any then current employee\nof Employer.\nSECTION 6\nAGREEMENT NOT TO DISCLOSE\nDuring and after the term of this Agreement, Employee shall use his best efforts and utmost diligence to guard and protect all of the\nEmployer’s trade secrets (as defined in Section 688.002[4], Florida Statutes), and any other confidential business information. Employee shall not,\neither during or after the term of this Agreement, for any reason, use in any capacity, or divulge or disclose in any manner, to any person or entity,\nthe identity of Employer’s customers, methods of operation, marketing or promotional methods, processes, techniques, systems, formulas, programs,\ntrade secrets, or other confidential information relating to Employer’s business. Upon termination of Employee’s employment, for any reason,\nEmployee shall immediately return and deliver to Employer, all records and papers and all materials which bear trade secrets or other confidential\nbusiness information.\nSECTION 7\nREPRESENTATIONS AND ACKNOWLEDGMENTS OF EMPLOYEE\nEmployee hereby agrees that the duration of the anti-competitive covenants set forth in Sections 4, 5, and 6 of this Agreement are reasonable,\nand that their geographic scope is not unduly restrictive. Furthermore, Employee acknowledges that Employer has a legitimate business interest in\nenforcing the anti-competitive covenants contained in Sections 4, 5, and 6 of this Agreement, because of Employee’s access to valuable and\nconfidential information about Employer, as well as confidential information about Employer’s existing and prospective customers.\n_2-\nSECTION 8\nENFORCEMENT\nEmployer and Employee acknowledge and agree that money damages cannot fully compensate Employer in the event of Employee’s violation\nof the provisions of Sections 4, 5, or 6 of this Agreement, Thus, in the event of a breach of any of the provisions of Sections 4, 5, or 6 of this\nAgreement, Employee agrees that Employer, upon application to a court of competent jurisdiction, shall be entitled to an injunction restraining\nEmployee from any further breach of the terms or provisions of Sections 4, 5, or 6. Employee’s sole remedy, in the event of the wrongful entry of\nsuch injunction, shall be the dissolution of such injunction. Employee hereby waives any and all claims for damages by reason of the wrongful\nissuance of any such injunction.\nSECTION 9\nMODIFICATION AND WAIVER\nThis Agreement may not be modified or amended except as agreed to in writing by the parties hereto. No term or condition of this Agreement\nshall be deemed to have been waived, nor shall there be any estoppel against the enforcement of any provision of this Agreement, except by written\ninstrument of the party charged with such waiver or estoppel. No such written waiver shall be deemed a continuing waiver unless specifically stated\ntherein, and each such waiver shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or\ncondition for the future, or as to any act other than that specifically waived.\nSECTION 10\nATTORNEYS’ FEES\nIn the event of any proceeding occurring out of or involving this Agreement, the prevailing party shall be entitled to the recovery of reasonable\nattorneys’ fees, expenses, and costs, including fees and costs to enforce an award.\nSECTION 11\nSEVERABILITY AND REFORMATION\nThe invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement, which shall remain in foil force and effect. In the event a court of competent jurisdiction shall rule that any of the\nprovisions of Section 4, 5, or 6 is unenforceable due to their length, geographic area, or scope, Employer and Employee hereby request that such\ncourt reform the terms of those Sections so that they may be enforceable.\n_3-\nSECTION 12\nHEADINGS FOR REFERENCE ONLY\nThe headings of the Sections herein are included solely for convenience of reference and shall not control the meaning or the interpretation of\nany of the provisions of this Agreement.\nSECTION 13\nAPPLICABLE LAW\nThis Agreement shall be governed in all respects and be interpreted by and under the laws of the State of Florida, and venue for any action\nhereunder shall lie in Pinellas County, Florida.\nSECTION 14\nASSIGNMENT\nThis Agreement shall inure to the benefit of and be binding upon the Employee, and to the extent applicable, his heirs, assigns, executors, and\npersonal representatives, and to the Employer. This Agreement, however, may not be assigned by Employer to its successors, including, without\nlimitation, any person or entity that may acquire all, or substantially all, of Employer’s assets and business, or with or into which Employer may be\nconsolidated or merged (other than through an intra-company reorganization or merger), without the written consent of Employee, which may be\nwithheld for any reason. This provision shall apply in the event of any subsequent merger, consolidation, or transfer.\nSECTION 15\nNO CONTRACT OF EMPLOYMENT\nThis Agreement shall not, under any circumstances, be deemed to constitute an employment contract between Employer and Employee.\nNothing contained in this Agreement shall be deemed to give Employee the right to be retained in the service of Employer, or to interfere with the\nright of Employer to discharge Employee at any time.\n_4-\nIN WITNESS WHEREOF, Employer and Employee have duly executed this Agreement this 28t day of March, 2005. EMPLOYEE\n/s/ Clifton E. Tusfs\nClifton E. Tufts, Executive Vice President FIRST COMMUNITY BANK CORPORATION OF\nAMERICA\nBy: /s/ Kenneth P. Cherven Kenneth P. Cherven\nPresident and Chief Executive Officer\nFIRST COMMUNITY BANK AMERICA\nBy: /s/ Kenneth P. Cherven Kenneth P. Cherven\nPresident and Chief Executive Officer	EX-10.3 6 dex103.htm NON COMPETITION, NON SOLICITATION AND NON DISCLOSURE\nExhibit 10.3\nNON-COMPETITION, NON-SOLICITATION, AND\nNON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE AGREEMENT ("Agreement") is entered into by and\namong First Community Bank Corporation of America, First Community Bank of America (collectively, "Employer") and Clifton E. Tufts\n("Employee").\nWHEREAS, Employee serves as Employer's Executive Vice President and in such capacity has: (i) access to Employer's trade secrets and\nother valuable confidential business information; and (ii) substantial relationships with Employer's existing and prospective customers and clients.\nNOW, THEREFORE, in consideration of Employer's continued employment of Employee, and the grant of stock options and the severance\npayment described below, Employee hereby agrees to certain anti-competitive covenants contained herein.\nSECTION 1\nTERM OF AGREEMENT\nThis Agreement shall remain in effect for the period in which Employee remains employed by Employer and certain provisions will continue\nto\nremain in effect after Employee's termination, as otherwise provided for in this Agreement. This Agreement may be terminated by Employer for\n"just cause," which is defined to mean termination of Employee's employment by Employer for Employee's personal dishonesty (directly or\nindirectly) resulting in gain to, or personal enrichment of, Employee at the expense of Employer, insubordination, misconduct or conduct\nunbecoming a senior officer of a financial institution which could have a material negative reflection upon the Employer, breach of fiduciary duty,\nfailure to materially perform the duties required of his senior officer position with Employer, violation of a significant law, rule or regulation (other\nthan minor traffic violations or similar offenses), violation of a final cease-and-desist order, or personal default on indebtedness which is not\ncorrected within 30 days from the date of default.\nSECTION 2\nSEVERANCE PAYMENT\nIn the event Employer terminates Employee's employment for any reason (other than "just cause" or illness or incapacity wherein Employee is\ncovered by disability insurance provided by Employer to all senior officers) Employer shall pay to Employee a severance payment of one year's base\nsalary within five business days of such termination.\nSECTION 3\nSTOCK OPTIONS\nIn recognition of Employee's contribution to Employer and Employee's execution of this Agreement, Employer shall grant Employee stock\noptions to purchase 12,500 shares of common stock of First Community Bank Corporation of America. The per share price shall be the per share\nclosing price on the grant date (the date this agreement is executed by Employee, The stock options granted pursuant to this Agreement are non-\nqualified options, which shall vest immediately upon the date of grant and shall have a six-year term within which they may be exercised.\nSECTION 4\nAGREEMENT NOT TO COMPETE\nEmployee agrees that during the term of this Agreement and for a period of one year following Employee's termination for any reason,\nEmployee shall not become employed, directly or indirectly, whether as an employee, independent contractor, consultant, or otherwise, with\nany\nfederally-insured financial institution, financial holding company, bank holding company, or other financial services provider, in which the\nemployment position is associated with lockbox activities or lockbox servicing, and which is located within 20 miles of any lockbox customer of\nEmployer within the State of Florida at the time of Employee's termination of employment with Employer.\nSECTION 5\nAGREEMENT NOT TO SOLICIT\nEmployee further agrees that during the term of this Agreement and for a period of one year following Employee's termination for any reason,\nEmployee shall not, directly or indirectly, solicit the business of any then current lockbox customer (both borrower and depositor) of Employer,\nregardless of whether or not Employee was responsible for generating such customer's business for Employer. In addition, Employee agrees that\nduring the term of this Agreement and this provision, Employee shall not directly or indirectly solicit the employment of any then current employee\nof Employer.\nSECTION 6\nAGREEMENT NOT TO DISCLOSE\nDuring and after the term of this Agreement, Employee shall use his best efforts and utmost diligence to guard and protect all of the\nEmployer's trade secrets (as defined in Section 688.002[4], Florida Statutes), and any other confidential business information. Employee shall not,\neither during or after the term of this Agreement, for any reason, use in any capacity, or divulge or disclose in any manner, to any person or entity,\nthe identity of Employer's customers, methods of operation, marketing or promotional methods, processes, techniques, systems, formulas, programs,\ntrade secrets, or other confidential information relating to Employer's business. Upon termination of Employee's employment, for any reason,\nEmployee shall immediately return and deliver to Employer, all records and papers and all materials which bear trade secrets or other confidential\nbusiness information.\nSECTION 7\nREPRESENTATIONS AND ACKNOWLEDGMENTS OF EMPLOYEE\nEmployee hereby agrees that the duration of the anti-competitive covenants set forth in Sections 4, 5, and 6 of this Agreement are reasonable,\nand that their geographic scope is not unduly restrictive. Furthermore, Employee acknowledges that Employer has a legitimate business interest in\nenforcing the anti-competitive covenants contained in Sections 4, 5, and 6 of this Agreement, because of Employee's access to valuable and\nconfidential information about Employer, as well as confidential information about Employer's existing and prospective customers.\n2\nSECTION 8\nENFORCEMENT\nEmployer and Employee acknowledge and agree that money damages cannot fully compensate Employer in the event of Employee's violation\nof\nthe provisions of Sections 4, 5, or 6 of this Agreement, Thus, in the event of a breach of any of the provisions of Sections 4, 5, or 6 of this\nAgreement, Employee agrees that Employer, upon application to a court of competent jurisdiction, shall be entitled to an injunction restraining\nEmployee from any further breach of the terms or provisions of Sections 4, 5, or 6. Employee's sole remedy, in the event of the wrongful entry of\nsuch injunction, shall be the dissolution of such injunction. Employee hereby waives any and all claims for damages by reason of the wrongful\nissuance of any such injunction.\nSECTION 9\nMODIFICATION AND WAIVER\nThis Agreement may not be modified or amended except as agreed to in writing by the parties hereto. No term or condition of this Agreement\nshall be deemed to have been waived, nor shall there be any estoppel against the enforcement of any provision of this Agreement, except by written\ninstrument of the party charged with such waiver or estoppel. No such written waiver shall be deemed a continuing waiver unless specifically stated\ntherein, and each such waiver shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or\ncondition for the future, or as to any act other than that specifically waived.\nSECTION 10\nATTORNEYS' FEES\nIn the event of any proceeding occurring out of or involving this Agreement, the prevailing party shall be entitled to the recovery of reasonable\nattorneys' fees, expenses, and costs, including fees and costs to enforce an award.\nSECTION 11\nSEVERABILITY AND REFORMATION\nThe invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement, which shall remain in foil force and effect. In the event a court of competent jurisdiction shall rule that any of the\nprovisions of Section 4, 5, or 6 is unenforceable due to their length, geographic area, or scope, Employer and Employee hereby request that such\ncourt reform the terms of those Sections so that they may be enforceable.\n3\nSECTION 12\nHEADINGS FOR REFERENCE ONLY\nThe headings of the Sections herein are included solely for convenience of reference and shall not control the meaning or the interpretation\nof\nany of the provisions of this Agreement.\nSECTION 13\nAPPLICABLE LAW\nThis Agreement shall be governed in all respects and be interpreted by and under the laws of the State of Florida, and venue for any action\nhereunder shall lie in Pinellas County, Florida.\nSECTION 14\nASSIGNMENT\nThis Agreement shall inure to the benefit of and be binding upon the Employee, and to the extent applicable, his heirs, assigns, executors, and\npersonal representatives, and to the Employer. This Agreement, however, may not be assigned by Employer to its successors, including, without\nlimitation, any person or entity that may acquire all, or substantially all, of Employer's assets and business, or with or into which Employer may\nbe\nconsolidated or merged (other than through an intra-company reorganization or merger), without the written consent of Employee, which may be\nwithheld for any reason. This provision shall apply in the event of any subsequent merger, consolidation, or transfer.\nSECTION 15\nNO CONTRACT OF EMPLOYMENT\nThis Agreement shall not, under any circumstances, be deemed to constitute an employment contract between Employer and Employee.\nNothing contained in this Agreement shall be deemed to give Employee the right to be retained in the service of Employer, or to interfere with the\nright of Employer to discharge Employee at any time.\n4\nIN WITNESS WHEREOF, Employer and Employee have duly executed this Agreement this 28th day of March, 2005.\nEMPLOYEE\n/s/ Clifton E. Tusfs\nClifton E. Tufts, Executive Vice President\nFIRST COMMUNITY BANK CORPORATION OF\nAMERICA\nBy: /s/ Kenneth P. Cherven\nKenneth P. Cherven\nPresident and Chief Executive Officer\nFIRST COMMUNITY BANK AMERICA\nBy: /s/ Kenneth P. Cherven\nKenneth P. Cherven\nPresident and Chief Executive Officer\n5 -	EX-10.3 6 dex103.htm NON COMPETITION, NON SOLICITATION AND NON DISCLOSURE\nExhibit 10.3\nNON-COMPETITION, NON-SOLICITATION, AND\nNON-DISCLOSURE AGREEMENT\nTHIS NON-COMPETITION, NON-SOLICITATION, AND NON-DISCLOSURE AGREEMENT (“Agreement”) is entered into by and\namong First Community Bank Corporation of America, First Community Bank of America (collectively, “Employer”) and Clifton E. Tufts\n(“Employee”).\nWHEREAS, Employee serves as Employer’s Executive Vice President and in such capacity has: (i) access to Employer’s trade secrets and\nother valuable confidential business information; and (ii) substantial relationships with Employer’s existing and prospective customers and clients.\nNOW, THEREFORE, in consideration of Employer’s continued employment of Employee, and the grant of stock options and the severance\npayment described below, Employee hereby agrees to certain anti-competitive covenants contained herein.\nSECTION 1\nTERM OF AGREEMENT\nThis Agreement shall remain in effect for the period in which Employee remains employed by Employer and certain provisions will continue\nto remain in effect after Employee’s termination, as otherwise provided for in this Agreement. This Agreement may be terminated by Employer for\n“just cause,” which is defined to mean termination of Employee’s employment by Employer for Employee’s personal dishonesty (directly or\nindirectly) resulting in gain to, or personal enrichment of, Employee at the expense of Employer, insubordination, misconduct or conduct\nunbecoming a senior officer of a financial institution which could have a material negative reflection upon the Employer, breach of fiduciary duty,\nfailure to materially perform the duties required of his senior officer position with Employer, violation of a significant law, rule or regulation (other\nthan minor traffic violations or similar offenses), violation of a final cease-and-desist order, or personal default on indebtedness which is not\ncorrected within 30 days from the date of default.\nSECTION 2\nSEVERANCE PAYMENT\nIn the event Employer terminates Employee’s employment for any reason (other than “just cause” or illness or incapacity wherein Employee is\ncovered by disability insurance provided by Employer to all senior officers) Employer shall pay to Employee a severance payment of one year’s base\nsalary within five business days of such termination.\nSECTION 3\nSTOCK OPTIONS\nIn recognition of Employee’s contribution to Employer and Employee’s execution of this Agreement, Employer shall grant Employee stock\noptions to purchase 12,500 shares of common stock of First Community Bank Corporation of America. The per share price shall be the per share\nclosing price on the grant date (the date this agreement is executed by Employee, The stock options granted pursuant to this Agreement are non-\nqualified options, which shall vest immediately upon the date of grant and shall have a six-year term within which they may be exercised.\nSECTION 4\nAGREEMENT NOT TO COMPETE\nEmployee agrees that during the term of this Agreement and for a period of one year following Employee’s termination for any reason,\nEmployee shall not become employed, directly or indirectly, whether as an employee, independent contractor, consultant, or otherwise, with any\nfederally-insured financial institution, financial holding company, bank holding company, or other financial services provider, in which the\nemployment position is associated with lockbox activities or lockbox servicing, and which is located within 20 miles of any lockbox customer of\nEmployer within the State of Florida at the time of Employee’s termination of employment with Employer.\nSECTION 5\nAGREEMENT NOT TO SOLICIT\nEmployee further agrees that during the term of this Agreement and for a period of one year following Employee’s termination for any reason,\nEmployee shall not, directly or indirectly, solicit the business of any then current lockbox customer (both borrower and depositor) of Employer,\nregardless of whether or not Employee was responsible for generating such customer’s business for Employer. In addition, Employee agrees that\nduring the term of this Agreement and this provision, Employee shall not directly or indirectly solicit the employment of any then current employee\nof Employer.\nSECTION 6\nAGREEMENT NOT TO DISCLOSE\nDuring and after the term of this Agreement, Employee shall use his best efforts and utmost diligence to guard and protect all of the\nEmployer’s trade secrets (as defined in Section 688.002[4], Florida Statutes), and any other confidential business information. Employee shall not,\neither during or after the term of this Agreement, for any reason, use in any capacity, or divulge or disclose in any manner, to any person or entity,\nthe identity of Employer’s customers, methods of operation, marketing or promotional methods, processes, techniques, systems, formulas, programs,\ntrade secrets, or other confidential information relating to Employer’s business. Upon termination of Employee’s employment, for any reason,\nEmployee shall immediately return and deliver to Employer, all records and papers and all materials which bear trade secrets or other confidential\nbusiness information.\nSECTION 7\nREPRESENTATIONS AND ACKNOWLEDGMENTS OF EMPLOYEE\nEmployee hereby agrees that the duration of the anti-competitive covenants set forth in Sections 4, 5, and 6 of this Agreement are reasonable,\nand that their geographic scope is not unduly restrictive. Furthermore, Employee acknowledges that Employer has a legitimate business interest in\nenforcing the anti-competitive covenants contained in Sections 4, 5, and 6 of this Agreement, because of Employee’s access to valuable and\nconfidential information about Employer, as well as confidential information about Employer’s existing and prospective customers.\n-2-\nSECTION 8\nENFORCEMENT\nEmployer and Employee acknowledge and agree that money damages cannot fully compensate Employer in the event of Employee’s violation\nof the provisions of Sections 4, 5, or 6 of this Agreement, Thus, in the event of a breach of any of the provisions of Sections 4, 5, or 6 of this\nAgreement, Employee agrees that Employer, upon application to a court of competent jurisdiction, shall be entitled to an injunction restraining\nEmployee from any further breach of the terms or provisions of Sections 4, 5, or 6. Employee’s sole remedy, in the event of the wrongful entry of\nsuch injunction, shall be the dissolution of such injunction. Employee hereby waives any and all claims for damages by reason of the wrongful\nissuance of any such injunction.\nSECTION 9\nMODIFICATION AND WAIVER\nThis Agreement may not be modified or amended except as agreed to in writing by the parties hereto. No term or condition of this Agreement\nshall be deemed to have been waived, nor shall there be any estoppel against the enforcement of any provision of this Agreement, except by written\ninstrument of the party charged with such waiver or estoppel. No such written waiver shall be deemed a continuing waiver unless specifically stated\ntherein, and each such waiver shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or\ncondition for the future, or as to any act other than that specifically waived.\nSECTION 10\nATTORNEYS’ FEES\nIn the event of any proceeding occurring out of or involving this Agreement, the prevailing party shall be entitled to the recovery of reasonable\nattorneys’ fees, expenses, and costs, including fees and costs to enforce an award.\nSECTION 11\nSEVERABILITY AND REFORMATION\nThe invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other\nprovision of this Agreement, which shall remain in foil force and effect. In the event a court of competent jurisdiction shall rule that any of the\nprovisions of Section 4, 5, or 6 is unenforceable due to their length, geographic area, or scope, Employer and Employee hereby request that such\ncourt reform the terms of those Sections so that they may be enforceable.\n-3-\nSECTION 12\nHEADINGS FOR REFERENCE ONLY\nThe headings of the Sections herein are included solely for convenience of reference and shall not control the meaning or the interpretation of\nany of the provisions of this Agreement.\nSECTION 13\nAPPLICABLE LAW\nThis Agreement shall be governed in all respects and be interpreted by and under the laws of the State of Florida, and venue for any action\nhereunder shall lie in Pinellas County, Florida.\nSECTION 14\nASSIGNMENT\nThis Agreement shall inure to the benefit of and be binding upon the Employee, and to the extent applicable, his heirs, assigns, executors, and\npersonal representatives, and to the Employer. This Agreement, however, may not be assigned by Employer to its successors, including, without\nlimitation, any person or entity that may acquire all, or substantially all, of Employer’s assets and business, or with or into which Employer may be\nconsolidated or merged (other than through an intra-company reorganization or merger), without the written consent of Employee, which may be\nwithheld for any reason. This provision shall apply in the event of any subsequent merger, consolidation, or transfer.\nSECTION 15\nNO CONTRACT OF EMPLOYMENT\nThis Agreement shall not, under any circumstances, be deemed to constitute an employment contract between Employer and Employee.\nNothing contained in this Agreement shall be deemed to give Employee the right to be retained in the service of Employer, or to interfere with the\nright of Employer to discharge Employee at any time.\n-4-\nIN WITNESS WHEREOF, Employer and Employee have duly executed this Agreement this 28 day of March, 2005.\nEMPLOYEE\n/s/ Clifton E. Tusfs\nClifton E. Tufts, Executive Vice President\nFIRST COMMUNITY BANK CORPORATION OF\nAMERICA\nBy: /s/ Kenneth P. Cherven\nKenneth P. Cherven\nPresident and Chief Executive Officer\nFIRST COMMUNITY BANK AMERICA\nBy: /s/ Kenneth P. Cherven\nKenneth P. Cherven\nPresident and Chief Executive Officer\n-5-\nth
+fc2ce0e2abdcf676a1d4ab95191a9d17.pdf	effective_date jurisdiction party term	EX-2.4 5 dex24.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT - STEPHEN MILSTEIN\nExhibit 2.4\nBURLINGTON COAT FACTORY HOLDINGS, INC.\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made as of April 13, 2006 between Burlington Coat Factory Holdings, Inc., a Delaware corporation (the\n“Company”), and Stephen Milstein (“Seller”). For purposes of this Agreement, unless the context requires otherwise, the term “Company” shall\ninclude all subsidiaries of the Company, including, without limitation, Burlington Coat Factory Warehouse Corporation, a Delaware corporation\n(“BlueBlazer”) and its subsidiaries.\nWHEREAS, Seller pursuant to that certain Agreement and Plan of Merger by and among the Company, BCFWC Mergersub, Inc., a\nDelaware corporation (the “Merger Sub”) and BlueBlazer, dated as of January 18, 2006 (the “Merger Agreement”) has received from the Company\nthe right to receive certain cash consideration in exchange for certain securities of BlueBlazer.\nWHEREAS, at the Effective Time (as defined in the Merger Agreement) MergerSub will merge with and into BlueBlazer pursuant to the\nMerger Agreement, with BlueBlazer being the surviving corporation of such merger, and the Company will own all issued and outstanding shares of\ncapital stock of BlueBlazer.\nWHEREAS, the Company and Seller desire to enter into an agreement setting forth the obligation of Seller to refrain from competing\nwith the Company for a period of time after the consummation of the transactions contemplated by the Merger Agreement as provided herein.\nWHEREAS, the execution and delivery of this Agreement by Seller is a condition to the consummation of the transactions contemplated\nby the Merger Agreement, and Seller is entering into this Agreement to induce the Company and the Merger Sub to consummate the transactions\ncontemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the Company and Seller hereby agree as follows:\n1. Nondisclosure and Nonuse of Confidential Information. For a period of three (3) years following the date hereof, Seller shall keep\nsecret and hold in confidence, and shall not use for its benefit, any and all information relating to the Company that is proprietary to the Company,\nother than the following: (i) information that has become generally available to the public other than as a result of a disclosure by Seller in breach of\nthis Agreement and (ii) information that is required to be disclosed by any applicable law. In connection with disclosure of confidential information\nunder clause (ii) above, Seller shall give the Company timely prior notice of the anticipated disclosure and the parties shall cooperate in designing\nreasonable procedural and other safeguards to preserve, to the maximum extent possible, the confidentiality of such material.\n2. Noncompetition.\n(a) Seller agrees that, for a period of one (1) year following the date hereof (the “Non-Compete Period”), neither Seller nor any of\nSeller’s Affiliates shall without the prior written consent of the Company, directly or indirectly, anywhere in the United States (the “Territory”)\n(i) form, acquire, operate, control, make a financial investment in, enter into any agreement pertaining to, publicly announce the launch of, or\notherwise finance, manage, participate in, consult with, become employed by or render advisory services to, any business or otherwise become\nassociated with an enterprise, the business of which is the same as, substantially similar to or otherwise competitive with the business of the\nCompany as now conducted (i.e., the business of BlueBlazer and its subsidiaries conducted or proposed to be conducted immediately prior to the\nclosing of the Merger) (a “Competing Business”), or (ii) for the purpose of conducting or engaging in a Competing Business, call upon, solicit,\nadvise or otherwise do, or attempt to do, business with any suppliers, vendors or other material business relationships of the Company. As used in\nthis Section 2 and Section 3 below, “Affiliate” of any particular person means any other person controlling, controlled by or under common control\nwith such particular person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a\nperson whether through the ownership of voting securities, contract or otherwise. Nothing herein shall prohibit Seller or any of Seller’s Affiliates\nfrom being a passive owner of not more than 3% of the outstanding stock of a corporation which is publicly traded, so long as neither Seller nor any\nof Seller’s Affiliate have an active participation in the business of such corporation.\n(b) Seller agrees that (i) the covenants set forth in this Section 2 are reasonable in temporal and geographical scope and in all other\nrespects, and (ii) the covenants contained herein have been made in order to induce the Company to enter into this Agreement and the Merger\nAgreement.\n(c) The Company and Seller intend that the covenants of this Section 2 shall be deemed to be a series of separate covenants, one for each\ncounty or province of each and every state within the Territory and one for each month of the Non-Compete Period.\n(d) If, at the time of enforcement of this Section 2, a court shall hold that the duration or scope stated herein are unreasonable under\ncircumstances then existing, the parties agree that the maximum duration or scope under such circumstances shall be substituted for the stated\nduration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by\nlaw.\n(e) Seller recognizes and affirms that in the event of its breach of any provision of this Section 2, money damages would be inadequate\nand the Company would not have an adequate remedy at law. Accordingly, Seller agrees that in the event of a breach or a threatened breach by Seller\nof any of the provisions of this Section 2, the Company, in addition and supplementary to other rights and remedies existing in its favor, may apply\nto any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any\nviolations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Seller of this\nSection 2, the Non-Compete Period shall be tolled until such breach or violation has been duly cured.\n2\n3. Nonsolicitation. For a period of three (3) years following the date hereof, Seller and each of Seller’s Affiliates shall not:\n(a) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the\nrelationship between the Company and any employee thereof; provided that the placement of any general advertisement or general solicitation to the\npublic at large shall not constitute “interference” under this clause (a);\n(b) hire directly or through another entity any person who was an employee of the Company or any of its subsidiaries as of the date\nhereof; provided that, with the Company’s prior written consent (which consent shall not unreasonably be withheld), Seller and Seller’s Affiliates\ncan hire any person who was an employee of the Company or any of its subsidiaries who has been fired by the Company or any of its subsidiaries;\nprovided further that\n(i) for the avoidance of doubt, the Company’s withholding of consent with respect to Seller’s or Seller’s Affiliate’s hiring of any\nperson shall be deemed reasonable if the Company determines in good faith that (x) the hiring of such person by Seller or Seller ’s\nAffiliates would be detrimental to the business of the Company or (y) such person has caused such firing to occur in order to circumvent\nthe restrictions of this Section 3(b),\n(ii) if Seller or any of Seller’s Affiliates wishes to hire any such person or persons, it shall so notify the Company (the “Notice’),\nwhich Notice shall set forth the identity of the former employee or employees and request the consent of the Company to such hiring,\nand, if the Company fails to notify the Seller or the notifying Affiliate within ten (10) days of the Company’s receipt of the Notice to it\nthat it is withholding its consent, the Company shall be deemed to have granted such consent and the Seller or the notifying Affiliate may\nproceed to hire such former employee or employees; and\n(iii) nothing herein shall prevent a member of the Milstein family from hiring any other member of the Milstein family; or\n(c) induce or attempt to induce any supplier, vendor or other business relation of the Company to cease doing business with the\nCompany, or in any way interfere with the relationship between any such supplier, vendor, or other business relation and the Company (including,\nwithout limitation, making any negative statements or communications concerning the Company); provided that (x) the hiring of any legal counsel,\naccountant or financial advisor, and (y) following the end of the Non-Compete Period, the operation of any competitive business in the ordinary\ncourse of business, in each case, in and of itself, shall not constitute “interference” under this Section 3(c).\n4. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent via facsimile,\nmailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the\nrecipient at the address below indicated:\nTo the Company:\nBurlington Coat Factory Holdings, Inc.\nBain Capital Partners, LLC\n111 Huntington Avenue\nBoston, Massachusetts 02199\nAttention: Jordan Hitch\nFacsimile No.: (617) 516-2010\n3\nwith copies (which shall not constitute notice to the Company) to:\nKirkland & Ellis\nCiticorp Center\n153 East 53rd Street\nNew York, NY 10022-4675\nAttention: Lance Balk, Esq.\nFacsimile: (212) 446-4900\nTo Seller:\nStephen Milstein\n1005 Plowshare Road\nYardley, Pennsylvania 19067\nwith copies (which shall not constitute notice to the Seller) to:\nPhillips Nizer LLP\n666 Fifth Avenue\n28th Floor\nNew York, NY 10103\nAttention: Tiberio Schwartz\nFacsimile: (212) 262-5152\nor such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been given when received by the intended recipient thereof.\n5. General Provisions.\n(a) Absence of Conflicting Agreements. Seller hereby warrants and covenants that (i) Seller’s execution, delivery and performance of\nthis Agreement do not and shall not result in a breach of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree\nto which Seller is subject and (ii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding\nobligation of Seller, enforceable in accordance with its terms.\n(b) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any\n4\nprovision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such\ninvalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, and this Agreement shall be reformed, construed\nand enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. The parties agree that a court\nof competent jurisdiction making a determination of the invalidity or unenforceability of any term or provision of Section 2 of this Agreement shall\nhave the power to reduce the scope, duration or area of any such term or provision, to delete specific words or phrases or to replace any invalid or\nunenforceable term or provision in Section 2 with a term or provision that is valid and enforceable and that comes closest to expressing the intention\nof the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified.\n(c) Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith\nembody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or\nrepresentations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.\n(d) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(e) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and Seller and their respective successors and assigns; provided, that the rights and obligations of Seller under this\nAgreement may not be assigned (except in connection with a liquidation or dissolution of Seller) or delegated without the prior written consent of\nthe Company.\n(f) Choice of Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be\ngoverned by, and construed in accordance with, the internal law, and not the law of conflicts, of the State of New York, without giving effect to any\nchoice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of\nthe laws of any jurisdiction other than the State of New York.\n(g) Waiver of Jury Trial. EACH OF THE COMPANY AND SELLER HEREBY IRREVOCABLY WAIVES ANY AND ALL\nRIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR\nTHE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.\n(h) Jurisdiction. Each of the parties hereto submits to the jurisdiction of any state or federal court sitting in New York, New York, in any\naction or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and\ndetermined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly\nwaives any claim of improper venue and any claim that such courts are an inconvenient forum. Each of the parties\n5\nhereby irrevocably consent to the service of process of any of the aforementioned courts in any such suit, action or proceeding by the mailing of\ncopies thereof by registered or certified mail, postage prepaid and return receipt requested, to its address set forth in Section 4, such service to\nbecome effective 10 days after such mailing.\n(i) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the\nevent an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no\npresumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.\nThe word “including” shall mean including without limitation.\n(j) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns\nand nothing herein expressed or implied shall give or be construed to give any person, other than the parties hereto and such permitted successors\nand assigns, any legal or equitable rights hereunder.\n(k) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover\ndamages and costs (including reasonable attorneys fees) caused by any breach of any provision of this Agreement and to exercise all other rights\nexisting in its favor. The parties hereto agree and acknowledge that Seller’s breach of any term or provision of this Agreement shall materially and\nirreparably harm the Company, that money damages shall accordingly not be an adequate remedy for any breach of the provisions of this Agreement\nby Seller and that the Company in its sole discretion and in addition to any other remedies it may have at law or in equity may apply to any court of\nlaw or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to\nenforce or prevent any violations of the provisions of this Agreement. Nothing herein is intended to entitle any party hereto to money damages\nwithout proving such damages.\n(l) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and Seller.\n*****\n6\nIN WITNESS WHEREOF, the parties hereto have executed this Non-Competition and Confidentiality Agreement on the date first\nwritten above.\nBURLINGTON COAT FACTORY\nHOLDINGS, INC.\nBy: /s/ John Tudor\nName: John Tudor\nTitle: Vice President\n/s/ Stephen Milstein\nStephen Milstein	EX-2.4 5 dex24.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT - STEPHEN MILSTEIN\nExhibit 2.4\nBURLINGTON COAT FACTORY HOLDINGS, INC.\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made as of April 13, 2006 between Burlington Coat Factory Holdings, Inc., a Delaware corporation (the\n“Company”), and Stephen Milstein (“Seller”). For purposes of this Agreement, unless the context requires otherwise, the term “Company” shall\ninclude all subsidiaries of the Company, including, without limitation, Burlington Coat Factory Warehouse Corporation, a Delaware corporation\n(“BlueBlazer”) and its subsidiaries.\nWHEREAS, Seller pursuant to that certain Agreement and Plan of Merger by and among the Company, BCFWC Mergersub, Inc., a\nDelaware corporation (the “Merger Sub”) and BlueBlazer, dated as of January 18, 2006 (the “Merger Agreement”) has received from the Company\nthe right to receive certain cash consideration in exchange for certain securities of BlueBlazer.\nWHEREAS, at the Effective Time (as defined in the Merger Agreement) MergerSub will merge with and into BlueBlazer pursuant to the\nMerger Agreement, with BlueBlazer being the surviving corporation of such merger, and the Company will own all issued and outstanding shares of\ncapital stock of BlueBlazer.\nWHEREAS, the Company and Seller desire to enter into an agreement setting forth the obligation of Seller to refrain from competing\nwith the Company for a period of time after the consummation of the transactions contemplated by the Merger Agreement as provided herein.\nWHEREAS, the execution and delivery of this Agreement by Seller is a condition to the consummation of the transactions contemplated\nby the Merger Agreement, and Seller is entering into this Agreement to induce the Company and the Merger Sub to consummate the transactions\ncontemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the Company and Seller hereby agree as follows:\n1. Nondisclosure and Nonuse of Confidential Information. For a period of three (3) years following the date hereof, Seller shall keep\nsecret and hold in confidence, and shall not use for its benefit, any and all information relating to the Company that is proprietary to the Company,\nother than the following: (i) information that has become generally available to the public other than as a result of a disclosure by Seller in breach of\nthis Agreement and (ii) information that is required to be disclosed by any applicable law. In connection with disclosure of confidential information\nunder clause (ii) above, Seller shall give the Company timely prior notice of the anticipated disclosure and the parties shall cooperate in designing\nreasonable procedural and other safeguards to preserve, to the maximum extent possible, the confidentiality of such material.\n2. Noncompetition.\n(a) Seller agrees that, for a period of one (1) year following the date hereof (the “Non-Compete Period”), neither Seller nor any of\nSeller’s Affiliates shall without the prior written consent of the Company, directly or indirectly, anywhere in the United States (the “Territory”)\n(i) form, acquire, operate, control, make a financial investment in, enter into any agreement pertaining to, publicly announce the launch of, or\notherwise finance, manage, participate in, consult with, become employed by or render advisory services to, any business or otherwise become\nassociated with an enterprise, the business of which is the same as, substantially similar to or otherwise competitive with the business of the\nCompany as now conducted (i.e., the business of BlueBlazer and its subsidiaries conducted or proposed to be conducted immediately prior to the\nclosing of the Merger) (a “Competing Business™), or (ii) for the purpose of conducting or engaging in a Competing Business, call upon, solicit,\nadvise or otherwise do, or attempt to do, business with any suppliers, vendors or other material business relationships of the Company. As used in\nthis Section 2 and Section 3 below, “Affiliate” of any particular person means any other person controlling, controlled by or under common control\nwith such particular person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a\nperson whether through the ownership of voting securities, contract or otherwise. Nothing herein shall prohibit Seller or any of Seller’s Affiliates\nfrom being a passive owner of not more than 3% of the outstanding stock of a corporation which is publicly traded, so long as neither Seller nor any\nof Seller’s Affiliate have an active participation in the business of such corporation.\n(b) Seller agrees that (i) the covenants set forth in this Section 2 are reasonable in temporal and geographical scope and in all other\nrespects, and (ii) the covenants contained herein have been made in order to induce the Company to enter into this Agreement and the Merger\nAgreement.\n(c) The Company and Seller intend that the covenants of this Section 2 shall be deemed to be a series of separate covenants, one for each\ncounty or province of each and every state within the Territory and one for each month of the Non-Compete Period.\n(d) If, at the time of enforcement of this Section 2, a court shall hold that the duration or scope stated herein are unreasonable under\ncircumstances then existing, the parties agree that the maximum duration or scope under such circumstances shall be substituted for the stated\nduration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by\nlaw.\n(e) Seller recognizes and affirms that in the event of its breach of any provision of this Section 2, money damages would be inadequate\nand the Company would not have an adequate remedy at law. Accordingly, Seller agrees that in the event of a breach or a threatened breach by Seller\nof any of the provisions of this Section 2, the Company, in addition and supplementary to other rights and remedies existing in its favor, may apply\nto any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any\nviolations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Seller of this\nSection 2, the Non-Compete Period shall be tolled until such breach or violation has been duly cured.\n2\n3. Nonsolicitation. For a period of three (3) years following the date hereof, Seller and each of Seller’s Affiliates shall not:\n(a) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the\nrelationship between the Company and any employee thereof; provided that the placement of any general advertisement or general solicitation to the\npublic at large shall not constitute “interference” under this clause (a);\n \n(b) hire directly or through another entity any person who was an employee of the Company or any of its subsidiaries as of the date\nhereof; provided that, with the Company’s prior written consent (which consent shall not unreasonably be withheld), Seller and Seller’s Affiliates\ncan hire any person who was an employee of the Company or any of its subsidiaries who has been fired by the Company or any of its subsidiaries;\nprovided further that\n \n(i) for the avoidance of doubt, the Company’s withholding of consent with respect to Seller’s or Seller’s Affiliate’s hiring of any\nperson shall be deemed reasonable if the Company determines in good faith that (x) the hiring of such person by Seller or Seller’s\nAffiliates would be detrimental to the business of the Company or (y) such person has caused such firing to occur in order to circumvent\nthe restrictions of this Section 3(b),\n(ii) if Seller or any of Seller’s Affiliates wishes to hire any such person or persons, it shall so notify the Company (the “Notice’),\nwhich Notice shall set forth the identity of the former employee or employees and request the consent of the Company to such hiring,\nand, if the Company fails to notify the Seller or the notifying Affiliate within ten (10) days of the Company’s receipt of the Notice to it\nthat it is withholding its consent, the Company shall be deemed to have granted such consent and the Seller or the notifying Affiliate may\nproceed to hire such former employee or employees; and\n(iii) nothing herein shall prevent a member of the Milstein family from hiring any other member of the Milstein family; or\n(c) induce or attempt to induce any supplier, vendor or other business relation of the Company to cease doing business with the\nCompany, or in any way interfere with the relationship between any such supplier, vendor, or other business relation and the Company (including,\nwithout limitation, making any negative statements or communications concerning the Company); provided that (x) the hiring of any legal counsel,\naccountant or financial advisor, and (y) following the end of the Non-Compete Period, the operation of any competitive business in the ordinary\ncourse of business, in each case, in and of itself, shall not constitute “interference” under this Section 3(c).\n \n4. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent via facsimile,\nmailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the\nrecipient at the address below indicated:\nTo the Company:\nBurlington Coat Factory Holdings, Inc.\nBain Capital Partners, LLC\n111 Huntington Avenue\nBoston, Massachusetts 02199\nAttention: Jordan Hitch\nFacsimile No.: (617) 516-2010\nKirkland & Ellis\nCiticorp Center\n153 East 53rd Street\nNew York, NY 10022-4675\nAttention: Lance Balk, Esq.\nFacsimile: (212) 446-4900\nTo Seller:\nStephen Milstein\n1005 Plowshare Road\nYardley, Pennsylvania 19067\nwith copies (which shall not constitute notice to the Seller) to:\nPhillips Nizer LLP\n666 Fifth Avenue\n28™ Floor\nNew York, NY 10103\nAttention: Tiberio Schwartz\nFacsimile: (212) 262-5152\nor such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been given when received by the intended recipient thereof.\n5. General Provisions.\n(a) Absence of Conflicting Agreements. Seller hereby warrants and covenants that (i) Seller’s execution, delivery and performance of\nthis Agreement do not and shall not result in a breach of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree\nto which Seller is subject and (ii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding\nobligation of Seller, enforceable in accordance with its terms.\n(b) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any\nprovision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such\ninvalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, and this Agreement shall be reformed, construed\nand enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. The parties agree that a court\nof competent jurisdiction making a determination of the invalidity or unenforceability of any term or provision of Section 2 of this Agreement shall\nhave the power to reduce the scope, duration or area of any such term or provision, to delete specific words or phrases or to replace any invalid or\nunenforceable term or provision in Section 2 with a term or provision that is valid and enforceable and that comes closest to expressing the intention\nof the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified.\n(c) Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith\nembody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or\nrepresentations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.\n(d) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(e) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and Seller and their respective successors and assigns; provided, that the rights and obligations of Seller under this\nAgreement may not be assigned (except in connection with a liquidation or dissolution of Seller) or delegated without the prior written consent of\nthe Company.\n(f) Choice of Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be\ngoverned by, and construed in accordance with, the internal law, and not the law of conflicts, of the State of New York, without giving effect to any\nchoice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of\nthe laws of any jurisdiction other than the State of New York.\n(g) Waiver of Jury Trial. EACH OF THE COMPANY AND SELLER HEREBY IRREVOCABLY WAIVES ANY AND ALL\nRIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR\nTHE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.\n(h) Jurisdiction. Each of the parties hereto submits to the jurisdiction of any state or federal court sitting in New York, New York, in any\naction or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and\ndetermined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly\nwaives any claim of improper venue and any claim that such courts are an inconvenient forum. Each of the parties\n5\nhereby irrevocably consent to the service of process of any of the aforementioned courts in any such suit, action or proceeding by the mailing of\ncopies thereof by registered or certified mail, postage prepaid and return receipt requested, to its address set forth in Section 4, such service to\nbecome effective 10 days after such mailing.\n \n(i) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the\nevent an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no\npresumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.\nThe word “including” shall mean including without limitation.\n \n(j) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns\nand nothing herein expressed or implied shall give or be construed to give any person, other than the parties hereto and such permitted successors\nand assigns, any legal or equitable rights hereunder.\n(k) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover\ndamages and costs (including reasonable attorneys fees) caused by any breach of any provision of this Agreement and to exercise all other rights\nexisting in its favor. The parties hereto agree and acknowledge that Seller’s breach of any term or provision of this Agreement shall materially and\nirreparably harm the Company, that money damages shall accordingly not be an adequate remedy for any breach of the provisions of this Agreement\nby Seller and that the Company in its sole discretion and in addition to any other remedies it may have at law or in equity may apply to any court of\nlaw or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to\nenforce or prevent any violations of the provisions of this Agreement. Nothing herein is intended to entitle any party hereto to money damages\nwithout proving such damages.\n(1) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and Seller.\nk ok ok ok K\nIN WITNESS WHEREOF, the parties hereto have executed this Non-Competition and Confidentiality Agreement on the date first\nwritten above.\nBURLINGTON COAT FACTORY\nHOLDINGS, INC.\nBy:  /s/ John Tudor\nName: John Tudor\nTitle: Vice President\n/s/ Stephen Milstein\nStephen Milstein	EX-2.4 5 dex24.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT STEPHEN MILSTEIN\nExhibit 2.4\nBURLINGTON COAT FACTORY HOLDINGS, INC.\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made as of April 13, 2006 between Burlington Coat Factory Holdings, Inc., a Delaware corporation (the\n"Company."), and Stephen Milstein ("Seller"). For purposes of this Agreement, unless the context requires otherwise, the term "Company." shall\ninclude all subsidiaries of the Company, including, without limitation, Burlington Coat Factory Warehouse Corporation, a Delaware corporation\n("BlueBlazer") and its subsidiaries.\nWHEREAS, Seller pursuant to that certain Agreement and Plan of Merger by and among the Company, BCFWC Mergersub, Inc., a\nDelaware corporation (the "Merger Sub") and BlueBlazer, dated as of January 18, 2006 (the "Merger Agreement") has received from the Company\nthe right to receive certain cash consideration in exchange for certain securities of BlueBlazer.\nWHEREAS, at the Effective Time (as defined in the Merger Agreement) MergerSub will merge with and into BlueBlazer pursuant to the\nMerger Agreement, with BlueBlazer being the surviving corporation of such merger, and the Company will own all issued and outstanding shares of\ncapital stock of BlueBlazer.\nWHEREAS, the Company and Seller desire to enter into an agreement setting forth the obligation of Seller to refrain from competing\nwith the Company for a period of time after the consummation of the transactions contemplated by the Merger Agreement as provided herein.\nWHEREAS, the execution and delivery of this Agreement by Seller is a condition to the consummation of the transactions contemplated\nby\nthe Merger Agreement, and Seller is entering into this Agreement to induce the Company and the Merger Sub to consummate the transactions\ncontemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the Company and Seller hereby agree as follows:\n1. Nondisclosure and Nonuse of Confidential Information. For a period of three (3) years following the date hereof, Seller shall keep\nsecret and hold in confidence, and shall not use for its benefit, any and all information relating to the Company that is proprietary to the Company,\nother than the following: (i) information that has become generally available to the public other than as a result of a disclosure by Seller in breach\nof\nthis Agreement and (ii) information that is required to be disclosed by any applicable law. In connection with disclosure of confidential information\nunder clause (ii) above, Seller shall give the Company timely prior notice of the anticipated disclosure and the parties shall cooperate in designing\nreasonable procedural and other safeguards to preserve, to the maximum extent possible, the confidentiality of such material.\n2. Noncompetition.\n(a) Seller agrees that, for a period of one (1) year following the date hereof (the "Non-Compete Period"), neither Seller nor any of\nSeller's Affiliates shall without the prior written consent of the Company, directly or indirectly, anywhere in the United States (the "Territory.")\n(i) form, acquire, operate, control, make a financial investment in, enter into any agreement pertaining to, publicly announce the launch of, or\notherwise\nfinance, manage, participate in, consult with, become employed by or render advisory services to, any business or otherwise become\nassociated with an enterprise, the business of which is the same as, substantially similar to or otherwise competitive with the business of the\nCompany as now conducted (i.e., the business of BlueBlazer and its subsidiaries conducted or proposed to be conducted immediately prior to the\nclosing of the Merger) (a "Competing Business"), or (ii) for the purpose of conducting or engaging in a Competing Business, call upon, solicit,\nadvise or otherwise do, or attempt to do, business with any suppliers, vendors or other material business relationships of the Company. As used in\nthis Section 2 and Section 3 below, "Affiliate" of any particular person means any other person controlling, controlled by or under common control\nwith such particular person, where "control" means the possession, directly or indirectly, of the power to direct the management and policies of a\nperson whether through the ownership of voting securities, contract or otherwise. Nothing herein shall prohibit Seller or any of Seller's Affiliates\nfrom being a passive owner of not more than 3% of the outstanding stock of a corporation which is publicly traded, so long as neither Seller nor\nany\nof Seller's Affiliate have an active participation in the business of such corporation.\n(b) Seller agrees that (i) the covenants set forth in this Section 2 are reasonable in temporal and geographical scope and in all other\nrespects, and (ii) the covenants contained herein have been made in order to induce the Company to enter into this Agreement and the Merger\nAgreement.\n(c) The Company and Seller intend that the covenants of this Section 2 shall be deemed to be a series of separate covenants, one for each\ncounty or province of each and every state within the Territory and one for each month of the Non-Compete Period.\n(d) If, at the time of enforcement of this Section 2, a court shall hold that the duration or scope stated herein are unreasonable under\ncircumstances then existing, the parties agree that the maximum duration or scope under such circumstances shall be substituted for the stated\nduration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by\nlaw.\n(e) Seller recognizes and affirms that in the event of its breach of any provision of this Section 2, money damages would be inadequate\nand the Company would not have an adequate remedy at law. Accordingly, Seller agrees that in the event of a breach or a threatened breach by Seller\nof any of the provisions of this Section 2, the Company, in addition and supplementary to other rights and remedies existing in its favor, may apply\nto any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any\nviolations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Seller of this\nSection 2, the Non-Compete Period shall be tolled until such breach or violation has been duly cured.\n2\n3. Nonsolicitation. For a period of three (3) years following the date hereof, Seller and each of Seller's Affiliates shall not:\n(a) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the\nrelationship between the Company and any employee thereof; provided that the placement of any general advertisement or general solicitation to the\npublic at large shall not constitute "interference" under this clause (a);\n(b) hire directly or through another entity any person who was an employee of the Company or any of its subsidiaries as of the date\nhereof; provided that, with the Company's prior written consent (which consent shall not unreasonably be withheld), Seller and Seller's Affiliates\ncan hire any person who was an employee of the Company or any of its subsidiaries who has been fired by the Company or any of its subsidiaries;\nprovided further that\n(i) for the avoidance of doubt, the Company's withholding of consent with respect to Seller's or Seller's Affiliate's hiring of any\nperson shall be deemed reasonable if the Company determines in good faith that (x) the hiring of such person by Seller or Seller's\nAffiliates would be detrimental to the business of the Company or (y) such person has caused such firing to occur in order to circumvent\nthe restrictions of this Section 3(b),\n(ii) if Seller or any of Seller's Affiliates wishes to hire any such person or persons, it shall SO notify the Company (the "Notice'),\nwhich Notice shall set forth the identity of the former employee or employees and request the consent of the Company to such hiring,\nand, if the Company fails to notify the Seller or the notifying Affiliate within ten (10) days of the Company's receipt of the Notice to it\nthat it is withholding its consent, the Company shall be deemed to have granted such consent and the Seller or the notifying Affiliate may\nproceed to hire such former employee or employees; and\n(iii) nothing herein shall prevent a member of the Milstein family from hiring any other member of the Milstein family; or\n(c) induce or attempt to induce any supplier, vendor or other business relation of the Company to cease doing business with the\nCompany,\nor in any way interfere with the relationship between any such supplier, vendor, or other business relation and the Company (including,\nwithout limitation, making any negative statements or communications concerning the Company); provided that (x) the hiring of any legal counsel,\naccountant or financial advisor, and (y) following the end of the Non-Compete Period, the operation of any competitive business in the ordinary\ncourse of business, in each case, in and of itself, shall not constitute "interference" under this Section 3(c).\n4. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent via facsimile,\nmailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the\nrecipient at the address below indicated:\nTo the Company:\nBurlington Coat Factory Holdings, Inc.\nBain Capital Partners, LLC\n111 Huntington Avenue\nBoston, Massachusetts 02199\nAttention: Jordan Hitch\nFacsimile No.: (617) 516-2010\n3\nwith copies (which shall not constitute notice to the Company) to:\nKirkland & Ellis\nCiticorp Center\n153 East 53rd Street\nNew York, NY 10022-4675\nAttention: Lance Balk, Esq.\nFacsimile: (212) 446-4900\nTo Seller:\nStephen Milstein\n1005 Plowshare Road\nYardley, Pennsylvania 19067\nwith copies (which shall not constitute notice to the Seller) to:\nPhillips Nizer LLP\n666 Fifth Avenue\n28th Floor\nNew York, NY 10103\nAttention: Tiberio Schwartz\nFacsimile: (212) 262-5152\nor such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been given when received by the intended recipient thereof.\n5. General Provisions.\n(a) Absence of Conflicting Agreements. Seller hereby warrants and covenants that (i) Seller's execution, delivery and performance of\nthis\nAgreement do not and shall not result in a breach of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree\nto which Seller is subject and (ii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding\nobligation of Seller, enforceable in accordance with its terms.\n(b) Severability.. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any\n4\nprovision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such\ninvalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, and this Agreement shall be reformed, construed\nand enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. The parties agree that a court\nof competent jurisdiction making a determination of the invalidity or unenforceability of any term or provision of Section 2 of this Agreement shall\nhave the power to reduce the scope, duration or area of any such term or provision, to delete specific words or phrases or to replace any invalid or\nunenforceable term or provision in Section 2 with a term or provision that is valid and enforceable and that comes closest to expressing the intention\nof\nthe invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified.\n(c) Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith\nembody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or\nrepresentations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.\n(d) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(e) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and Seller and their respective successors and assigns; provided, that the rights and obligations of Seller under this\nAgreement may not be assigned (except in connection with a liquidation or dissolution of Seller) or delegated without the prior written consent of\nthe Company.\n(f) Choice of Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be\ngoverned by, and construed in accordance with, the internal law, and not the law of conflicts, of the State of New York, without giving effect to any\nchoice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application\nof\nthe laws of any jurisdiction other than the State of New York.\n(g) Waiver of Jury Trial. EACH OF THE COMPANY AND SELLER HEREBY IRREVOCABLY WAIVES ANY AND ALL\nRIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR\nTHE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.\n(h) Jurisdiction. Each of the parties hereto submits to the jurisdiction of any state or federal court sitting in New York, New York, in any\naction or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and\ndetermined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly\nwaives any claim of improper venue and any claim that such courts are an inconvenient forum. Each of the parties\n5\nhereby irrevocably consent to the service of process of any of the aforementioned courts in any such suit, action or proceeding by the mailing\nof\ncopies thereof by registered or certified mail, postage prepaid and return receipt requested, to its address set forth in Section 4, such service\nto\nbecome effective 10 days after such mailing.\n(i) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the\nevent an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no\npresumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.\nThe word "including" shall mean including without limitation.\n(j) No Third-Party. Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns\nand nothing herein expressed or implied shall give or be construed to give any person, other than the parties hereto and such permitted successors\nand assigns, any legal or equitable rights hereunder.\n(k) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover\ndamages and costs (including reasonable attorneys fees) caused by any breach of any provision of this Agreement and to exercise all other rights\nexisting in its favor. The parties hereto agree and acknowledge that Seller's breach of any term or provision of this Agreement shall materially and\nirreparably harm the Company, that money damages shall accordingly not be an adequate remedy for any breach of the provisions of this Agreement\nby Seller and that the Company in its sole discretion and in addition to any other remedies it may have at law or in equity may apply to any court of\nlaw or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to\nenforce or prevent any violations of the provisions of this Agreement. Nothing herein is intended to entitle any party hereto to money damages\nwithout proving such damages.\n(1) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and Seller.\n* * * *\n6\nIN WITNESS WHEREOF, the parties hereto have executed this Non-Competition and Confidentiality Agreement on the date first\nwritten above.\nBURLINGTON COAT FACTORY\nHOLDINGS, INC.\nBy:\n/s/ John Tudor\nName: John Tudor\nTitle: Vice President\n/s/ Stephen Milstein\nStephen Milstein	EX-2.4 5 dex24.htm NON-COMPETITION AND CONFIDENTIALITY AGREEMENT - STEPHEN MILSTEIN\nExhibit 2.4\nBURLINGTON COAT FACTORY HOLDINGS, INC.\nNON-COMPETITION AND CONFIDENTIALITY AGREEMENT\nTHIS AGREEMENT is made as of April 13, 2006 between Burlington Coat Factory Holdings, Inc., a Delaware corporation (the\n“Company”), and Stephen Milstein (“Seller”). For purposes of this Agreement, unless the context requires otherwise, the term “Company” shall\ninclude all subsidiaries of the Company, including, without limitation, Burlington Coat Factory Warehouse Corporation, a Delaware corporation\n(“BlueBlazer”) and its subsidiaries.\nWHEREAS, Seller pursuant to that certain Agreement and Plan of Merger by and among the Company, BCFWC Mergersub, Inc., a\nDelaware corporation (the “Merger Sub”) and BlueBlazer, dated as of January 18, 2006 (the “Merger Agreement”) has received from the Company\nthe right to receive certain cash consideration in exchange for certain securities of BlueBlazer.\nWHEREAS, at the Effective Time (as defined in the Merger Agreement) MergerSub will merge with and into BlueBlazer pursuant to the\nMerger Agreement, with BlueBlazer being the surviving corporation of such merger, and the Company will own all issued and outstanding shares of\ncapital stock of BlueBlazer.\nWHEREAS, the Company and Seller desire to enter into an agreement setting forth the obligation of Seller to refrain from competing\nwith the Company for a period of time after the consummation of the transactions contemplated by the Merger Agreement as provided herein.\nWHEREAS, the execution and delivery of this Agreement by Seller is a condition to the consummation of the transactions contemplated\nby the Merger Agreement, and Seller is entering into this Agreement to induce the Company and the Merger Sub to consummate the transactions\ncontemplated by the Merger Agreement.\nNOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt\nand sufficiency of which are hereby acknowledged, the Company and Seller hereby agree as follows:\n1. Nondisclosure and Nonuse of Confidential Information. For a period of three (3) years following the date hereof, Seller shall keep\nsecret and hold in confidence, and shall not use for its benefit, any and all information relating to the Company that is proprietary to the Company,\nother than the following: (i) information that has become generally available to the public other than as a result of a disclosure by Seller in breach of\nthis Agreement and (ii) information that is required to be disclosed by any applicable law. In connection with disclosure of confidential information\nunder clause (ii) above, Seller shall give the Company timely prior notice of the anticipated disclosure and the parties shall cooperate in designing\nreasonable procedural and other safeguards to preserve, to the maximum extent possible, the confidentiality of such material.\n2. Noncompetition.\n(a) Seller agrees that, for a period of one (1) year following the date hereof (the “Non-Compete Period”), neither Seller nor any of\nSeller’s Affiliates shall without the prior written consent of the Company, directly or indirectly, anywhere in the United States (the “Territory”)\n(i) form, acquire, operate, control, make a financial investment in, enter into any agreement pertaining to, publicly announce the launch of, or\notherwise finance, manage, participate in, consult with, become employed by or render advisory services to, any business or otherwise become\nassociated with an enterprise, the business of which is the same as, substantially similar to or otherwise competitive with the business of the\nCompany as now conducted (i.e., the business of BlueBlazer and its subsidiaries conducted or proposed to be conducted immediately prior to the\nclosing of the Merger) (a “Competing Business”), or (ii) for the purpose of conducting or engaging in a Competing Business, call upon, solicit,\nadvise or otherwise do, or attempt to do, business with any suppliers, vendors or other material business relationships of the Company. As used in\nthis Section 2 and Section 3 below, “Affiliate” of any particular person means any other person controlling, controlled by or under common control\nwith such particular person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a\nperson whether through the ownership of voting securities, contract or otherwise. Nothing herein shall prohibit Seller or any of Seller’s Affiliates\nfrom being a passive owner of not more than 3% of the outstanding stock of a corporation which is publicly traded, so long as neither Seller nor any\nof Seller’s Affiliate have an active participation in the business of such corporation.\n(b) Seller agrees that (i) the covenants set forth in this Section 2 are reasonable in temporal and geographical scope and in all other\nrespects, and (ii) the covenants contained herein have been made in order to induce the Company to enter into this Agreement and the Merger\nAgreement.\n(c) The Company and Seller intend that the covenants of this Section 2 shall be deemed to be a series of separate covenants, one for each\ncounty or province of each and every state within the Territory and one for each month of the Non-Compete Period.\n(d) If, at the time of enforcement of this Section 2, a court shall hold that the duration or scope stated herein are unreasonable under\ncircumstances then existing, the parties agree that the maximum duration or scope under such circumstances shall be substituted for the stated\nduration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by\nlaw.\n(e) Seller recognizes and affirms that in the event of its breach of any provision of this Section 2, money damages would be inadequate\nand the Company would not have an adequate remedy at law. Accordingly, Seller agrees that in the event of a breach or a threatened breach by Seller\nof any of the provisions of this Section 2, the Company, in addition and supplementary to other rights and remedies existing in its favor, may apply\nto any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any\nviolations of the provisions hereof (without posting a bond or other security). In addition, in the event of a breach or violation by Seller of this\nSection 2, the Non-Compete Period shall be tolled until such breach or violation has been duly cured.\n2\n3. Nonsolicitation. For a period of three (3) years following the date hereof, Seller and each of Seller’s Affiliates shall not:\n(a) induce or attempt to induce any employee of the Company to leave the employ of the Company, or in any way interfere with the\nrelationship between the Company and any employee thereof; provided that the placement of any general advertisement or general solicitation to the\npublic at large shall not constitute “interference” under this clause (a);\n(b) hire directly or through another entity any person who was an employee of the Company or any of its subsidiaries as of the date\nhereof; provided that, with the Company’s prior written consent (which consent shall not unreasonably be withheld), Seller and Seller’s Affiliates\ncan hire any person who was an employee of the Company or any of its subsidiaries who has been fired by the Company or any of its subsidiaries;\nprovided further that\n(i) for the avoidance of doubt, the Company’s withholding of consent with respect to Seller’s or Seller’s Affiliate’s hiring of any\nperson shall be deemed reasonable if the Company determines in good faith that (x) the hiring of such person by Seller or Seller ’s\nAffiliates would be detrimental to the business of the Company or (y) such person has caused such firing to occur in order to circumvent\nthe restrictions of this Section 3(b),\n(ii) if Seller or any of Seller’s Affiliates wishes to hire any such person or persons, it shall so notify the Company (the “Notice’),\nwhich Notice shall set forth the identity of the former employee or employees and request the consent of the Company to such hiring,\nand, if the Company fails to notify the Seller or the notifying Affiliate within ten (10) days of the Company’s receipt of the Notice to it\nthat it is withholding its consent, the Company shall be deemed to have granted such consent and the Seller or the notifying Affiliate may\nproceed to hire such former employee or employees; and\n(iii) nothing herein shall prevent a member of the Milstein family from hiring any other member of the Milstein family; or\n(c) induce or attempt to induce any supplier, vendor or other business relation of the Company to cease doing business with the\nCompany, or in any way interfere with the relationship between any such supplier, vendor, or other business relation and the Company (including,\nwithout limitation, making any negative statements or communications concerning the Company); provided that (x) the hiring of any legal counsel,\naccountant or financial advisor, and (y) following the end of the Non-Compete Period, the operation of any competitive business in the ordinary\ncourse of business, in each case, in and of itself, shall not constitute “interference” under this Section 3(c).\n4. Notices. Any notice provided for in this Agreement must be in writing and must be either personally delivered, sent via facsimile,\nmailed by first class mail (postage prepaid and return receipt requested) or sent by reputable overnight courier service (charges prepaid) to the\nrecipient at the address below indicated:\nTo the Company:\nBurlington Coat Factory Holdings, Inc.\nBain Capital Partners, LLC\n111 Huntington Avenue\nBoston, Massachusetts 02199\nAttention: Jordan Hitch\nFacsimile No.: (617) 516-2010\n3\nwith copies (which shall not constitute notice to the Company) to:\nKirkland & Ellis\nCiticorp Center\n153 East 53rd Street\nNew York, NY 10022-4675\nAttention: Lance Balk, Esq.\nFacsimile: (212) 446-4900\nTo Seller:\nStephen Milstein\n1005 Plowshare Road\nYardley, Pennsylvania 19067\nwith copies (which shall not constitute notice to the Seller) to:\nPhillips Nizer LLP\n666 Fifth Avenue\n28th Floor\nNew York, NY 10103\nAttention: Tiberio Schwartz\nFacsimile: (212) 262-5152\nor such other address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party.\nAny notice under this Agreement shall be deemed to have been given when received by the intended recipient thereof.\n5. General Provisions.\n(a) Absence of Conflicting Agreements. Seller hereby warrants and covenants that (i) Seller’s execution, delivery and performance of\nthis Agreement do not and shall not result in a breach of the terms, conditions or provisions of any agreement, instrument, order, judgment or decree\nto which Seller is subject and (ii) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding\nobligation of Seller, enforceable in accordance with its terms.\n(b) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid\nunder applicable law, but if any\n4\nprovision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such\ninvalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, and this Agreement shall be reformed, construed\nand enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. The parties agree that a court\nof competent jurisdiction making a determination of the invalidity or unenforceability of any term or provision of Section 2 of this Agreement shall\nhave the power to reduce the scope, duration or area of any such term or provision, to delete specific words or phrases or to replace any invalid or\nunenforceable term or provision in Section 2 with a term or provision that is valid and enforceable and that comes closest to expressing the intention\nof the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified.\n(c) Complete Agreement. This Agreement, those documents expressly referred to herein and other documents of even date herewith\nembody the complete agreement and understanding among the parties and supersede and preempt any prior understandings, agreements or\nrepresentations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.\n(d) Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which\ntaken together constitute one and the same agreement.\n(e) Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be\nenforceable by the Company and Seller and their respective successors and assigns; provided, that the rights and obligations of Seller under this\nAgreement may not be assigned (except in connection with a liquidation or dissolution of Seller) or delegated without the prior written consent of\nthe Company.\n(f) Choice of Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be\ngoverned by, and construed in accordance with, the internal law, and not the law of conflicts, of the State of New York, without giving effect to any\nchoice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of\nthe laws of any jurisdiction other than the State of New York.\n(g) Waiver of Jury Trial. EACH OF THE COMPANY AND SELLER HEREBY IRREVOCABLY WAIVES ANY AND ALL\nRIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR\nTHE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT.\n(h) Jurisdiction. Each of the parties hereto submits to the jurisdiction of any state or federal court sitting in New York, New York, in any\naction or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and\ndetermined in any such court and hereby expressly submits to the personal jurisdiction and venue of such court for the purposes hereof and expressly\nwaives any claim of improper venue and any claim that such courts are an inconvenient forum. Each of the parties\n5\nhereby irrevocably consent to the service of process of any of the aforementioned courts in any such suit, action or proceeding by the mailing of\ncopies thereof by registered or certified mail, postage prepaid and return receipt requested, to its address set forth in Section 4, such service to\nbecome effective 10 days after such mailing.\n(i) Descriptive Headings; Construction. The descriptive headings of this Agreement are inserted for convenience only and do not\nconstitute a part of this Agreement. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the\nevent an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no\npresumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.\nThe word “including” shall mean including without limitation.\n(j) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their permitted successors and assigns\nand nothing herein expressed or implied shall give or be construed to give any person, other than the parties hereto and such permitted successors\nand assigns, any legal or equitable rights hereunder.\n(k) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover\ndamages and costs (including reasonable attorneys fees) caused by any breach of any provision of this Agreement and to exercise all other rights\nexisting in its favor. The parties hereto agree and acknowledge that Seller’s breach of any term or provision of this Agreement shall materially and\nirreparably harm the Company, that money damages shall accordingly not be an adequate remedy for any breach of the provisions of this Agreement\nby Seller and that the Company in its sole discretion and in addition to any other remedies it may have at law or in equity may apply to any court of\nlaw or equity of competent jurisdiction (without posting any bond or deposit) for specific performance and/or other injunctive relief in order to\nenforce or prevent any violations of the provisions of this Agreement. Nothing herein is intended to entitle any party hereto to money damages\nwithout proving such damages.\n(l) Amendment and Waiver. The provisions of this Agreement may be amended and waived only with the prior written consent of the\nCompany and Seller.\n*****\n6\nIN WITNESS WHEREOF, the parties hereto have executed this Non-Competition and Confidentiality Agreement on the date first\nwritten above.\nBURLINGTON COAT FACTORY\nHOLDINGS, INC.\nBy: /s/ John Tudor\nName: John Tudor\nTitle: Vice President\n/s/ Stephen Milstein\nStephen Milstein
+fc34f2d7a61e531870d05910c5c3599b.pdf	effective_date jurisdiction party term	EX-10.37 15 d255425dex1037.htm EMPLOYEE NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT,\nMARK LEUCHTENBERGER\nExhibit 10.37\nExecution Copy\nRIB-X PHARMACEUTICALS, INC.\nEMPLOYEE NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT\nAs a condition of my employment with Rib-X Pharmaceuticals, Inc. its subsidiaries, affiliates, successors or assigns (together the “Company”),\nand in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by the Company, I\nagree to the following:\n1. Company’s Business. I acknowledge that the Company is engaged in the business of discovering, developing and commercializing\nantibiotics (the “Business”).\n2. Confidential Information. I acknowledge that for the purposes of this Agreement, the term “Confidential Information” shall mean all\ninformation (financial, technical or otherwise) in whatever form (written, oral or otherwise) that relates to the Company’s Business and which is\ndisclosed to me or acquired by me in the course of my employment in any way concerning the trade secrets, projects, activities, business, clients,\ntrade practices, know-how or affairs of the Company, its parents, subsidiaries and affiliates, including, without limitation, all information concerning\nresearch, development tools, applications, products, business formulas, discoveries, ideas, concepts, know-how, techniques, diagrams, flow charts,\ndata, algorithms, source and object code, methods of operations, solutions, tools, marketing and development plans, customer or investor names,\ntransactions, acquisitions, all marketing plans, strategies and forecasts and other technical or business information, regarding existing and/or\ncontemplated products, processes, techniques or know-how, or any data or information developed by me pursuant to the performance of my services\nhereunder. I further understand that Confidential Information does not include any of the foregoing items which have become publicly known and\nmade generally available through no wrongful act of mine or of others who were under confidentiality obligations as to the Confidential Information\ninvolved.\n3. Use of Confidential Information.\n(a) During the course of my employment, I acknowledge that I will have access to Confidential Information. Therefore, during the term\nof my employment, and for all times thereafter, I will treat as confidential and, except as required in the performance of my employment duties and\nresponsibilities, will not disclose, publish, use or otherwise make available to the public or to any individual, firm or corporation any Confidential\nInformation.\n(b) I shall notify the Company immediately upon discovery of any unauthorized disclosure of Confidential Information, use of\nConfidential Information other than in carrying out my duties with the Company, or any other breach of this Agreement by me, and will cooperate\nwith the Company in every reasonable way to help the Company regain possession of the Confidential Information and prevent its further\nunauthorized use.\n4. Return of Confidential Information. I agree that all Confidential Information, together with all notes and records relating thereto, and all\ncopies, duplicates, reproductions, facsimiles or excerpts thereof in my possession, are the exclusive property of the Company. I will return promptly\nall such materials to the Company upon the termination of my employment or upon the Company’s demand. In addition, I will return promptly to the\nCompany upon the\nconclusion of my employment all reports, files, memoranda, records and software, credit cards, cardkey passes, door and file keys, computer access\ncodes or disks, instructional material, and other physical or personal property which I receive or prepare in connection with my employment with the\nCompany.\n5. Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose any\nproprietary information or trade secrets of any former or concurrent employer or other person or entity and that I will not bring onto the premises of\nthe Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing\nby such employer, person or entity.\n6. Third Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential or\nproprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain\nlimited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm\nor corporation or to use it except as necessary in carrying out my duties for the Company consistent with the Company’s agreement with such third\nparty.\n7. Proprietary Rights.\n(a) I agree to assign, and hereby assign, to the Company, without additional compensation, all right, title and interest in all creations,\ninventions, ideas, designs, copyrightable materials, trademarks, and other technology and rights (and any related improvements or modifications),\nwhether or not subject to patent or copyright protection (collectively, “Creations”), relating to any activities of the Company that are conceived or\ndeveloped by me in the course of my employment, whether conceived alone or with others and whether or not conceived or developed during regular\nbusiness hours, and if based on Confidential Information, after the termination of my employment for any reason. Such Creations shall be the sole\nproperty of the Company and, to the maximum extent permitted by applicable law, shall be deemed “works made for hire” as the term is used in the\nUnited States Copyright Act.\n(b) I agree to promptly inform the Company of any such Creations. I will also allow the Company to inspect any Creations I conceive or\ndevelop within (i) one (1) year after the termination of my employment for any reason, or (ii) during the Salary Continuation Period (as that term is\ndefined in the Employment Agreement), whichever period is greater, to determine if they are based on Confidential Information. I will (whether\nduring my employment or after the termination of my employment) execute such written instruments and do other such acts as may be necessary in\nthe opinion of the Company or its counsel to secure the Company’s rights in the Creations, including obtaining a patent, registering a copyright, or\notherwise (and I hereby irrevocably appoint the Company and any of its officers as my attorney in fact to undertake such acts in my name). I agree\nthat my obligation to execute written instruments and otherwise assist the Company in securing its rights in the Creations will continue after the\ntermination of my employment for any reason.\n2\n(c) To the extent, if any, that I retain any right, title or interest with respect to any Creations that are delivered to the Company or relate to\nmy employment with the Company, I hereby grant to the Company an irrevocable, paid-up, transferable, sub-licensable, worldwide right and license\n(i) to modify all or any portion of such Creations, including, without limitation, the making of additions to or deletions from such Creations,\nregardless of the medium (now or hereafter known) into which such Creations may be modified and regardless of the effect of such modifications on\nthe integrity of such Creations, and (ii) to identify me, or not to identify me, as one or more authors of or contributors to such Creations or any\nportion thereof, whether or not such Creations or any portion thereof have been modified. I further waive any “moral” rights, or other rights with\nrespect to attribution of authorship or integrity of such Creations that I may have under any applicable law, whether under copyright, trademark,\nunfair competition, defamation, right of privacy, contract, tort or other legal theory.\n(d) I have attached to this Agreement as Exhibit A, a list describing all inventions, original works of authorship, developments,\nimprovements, and trade secrets which were made by me prior to my employment with the Company (collectively referred to as “Prior Inventions”),\nwhich belong to me, which relate to the Company’s proposed business, products or research and development, and which are not assigned to the\nCompany hereunder; or, if no such list is attached, I represent that there are no such Prior Inventions. If in the course of my employment with the\nCompany, I incorporate into a Company product, process or machine a Prior Invention owned by me or in which I have an interest, the Company is\nhereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell such\nPrior Invention as part of or in connection with such product, process or machine.\n8. Conflicting Employment. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation, consulting or other business activity competitive with the Business of the Company, nor will I engage in any other activities that conflict\nwith my obligations to the Company.\n9. Non-Competition. During my employment and for a period of one (1) year following the date on which my employment with the Company\nterminates for any reason (the “Restricted Period”), I shall not, directly or indirectly, own, manage, operate, control or participate in the ownership,\nmanagement or control of, or be connected as an officer, employee, partner, director, or otherwise with, or have any financial interest in, or aid or\nassist anyone else in the conduct of, any entity or business (existing on the date that my employment with the Company terminates and/or during the\none-year period thereafter) that competes with the Business conducted by the Company or any of its subsidiaries or affiliates within any area in\nwhich the Company conducts its Business on the date that my employment with the Company terminates. Notwithstanding the foregoing, my\nownership of securities of a public company engaged in competition with the Company’s Business not in excess of two percent (2%) of any class of\nsuch securities shall not be considered a breach of the covenants set forth in this Section.\n10. Non-Solicitation. I agree that during the Restricted Period, I will not, directly or indirectly, take any of the following actions, and, to the\nextent that I own, manage, operate, control, am employed by or participate in the ownership, management, operation or control of, or am connected\nin any manner with, any business of the type and character engaged in and\n3\ncompetitive with the Business of the Company or any of its subsidiaries or affiliates during the period of my employment, I will use my best efforts\nto ensure that such business does not take any of the following actions:\n(a) persuade or attempt to persuade any customer of the Company to cease doing business with the Company or any of its subsidiaries or\naffiliates, or to reduce the amount of business it does with the Company or any of its subsidiaries or affiliates;\n(b) solicit for me or for any person or entity other than the Company, the business of any customer of the Company or any of its\nsubsidiaries or affiliates that was a customer of the Company within six months prior to the termination of my employment;\n(c) persuade or attempt to persuade any present employee of the Company or any of its subsidiaries or affiliates, or any individual who\nwas its employee or any of its subsidiaries or affiliates during the two (2) years prior to the termination of my employment, to leave the employ of\nthe Company or any of its subsidiaries or affiliates; or\n(d) knowingly hire or offer employment to any present senior (at the level of vice president or higher) employee of the Company or any\nof its subsidiaries or affiliates, or any individual who was its senior (at the level of vice president or higher), employee or any of its subsidiaries or\naffiliates during the two (2) years prior to the termination of my employment.\n11. Special Remedy. I recognize that the Confidential Information to be protected by this Agreement is special, unique and extraordinary in\ncharacter, and that in the event of any breach by me of any of the terms or conditions of this Agreement, the Company shall be entitled, if it so elects,\nto institute and prosecute proceedings in any court of competent jurisdiction, either in law or in equity, to obtain damages from me for any such\nbreach or to enforce the specific performance of this Agreement by me. I further acknowledge that a breach of my obligations under this Agreement\ncould cause the Company irreparable harm for which no adequate remedy at law would be available, and that the Company in such circumstances\nwould be entitled to injunctive relief preventing or enjoining any breach of my obligations, without the need to post any bond. I specifically consent\nto the jurisdiction of the United States District Court for the District of Connecticut, or if that court is unable to exercise jurisdiction for any reason,\nto the Superior Court of Connecticut, the New Haven Judicial Branch, for this purpose and irrevocably waive any objection I now have or hereafter\nmay have as to the venue of any such action brought under this Section.\n12. Miscellaneous.\n(a) Covenants Reasonable. I expressly acknowledge and agree that the covenants set forth herein are reasonable in all respects, and\nnecessary in order to protect, maintain and preserve the value and goodwill of the Company, as well as the proprietary and other legitimate business\ninterests of the Company. I further acknowledge and agree that the covenants and agreements set forth herein constitute a significant part of the\nconsideration given by me to the Company in exchange for the payment of my salary and benefits by the Company, and are a material reason for\nsuch payment.\n4\n(b) Indemnification. I agree to indemnify and hold the Company harmless from and against any and all damages, losses or expenses,\nincluding attorneys’ fees, relating to any breach by me of my obligations under this Agreement.\n(c) At-Will Employment. I understand and acknowledge that this Agreement is not intended to, and shall not be construed as, creating a\ncontract of employment for any specific duration. Unless I have entered into a written employment contract signed by an officer of the Company\nproviding otherwise, my employment with the Company remains “at-will”, meaning that either I or the Company may, at any time, terminate my\nemployment with or without cause and with or without notice.\n(d) Validity. I agree that the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement, which shall otherwise remain in full force and effect. Moreover, if any one or more of the\nprovisions contained in this Agreement is held to be excessively broad as to duration, scope or activity, I agree that such provisions shall be\nconstrued by limiting and reducing them so as to be enforceable to the maximum extent compatible with applicable law.\n(e) Waivers. The waiver by the Company or me of any right under this Agreement or of any failure to perform or any breach by the\nother shall not be deemed a waiver of any other right under this Agreement or of any other failure or any other breach by such party, whether of the\nsame or a similar nature or otherwise. No waiver shall be deemed to have occurred unless set forth in writing executed by or on behalf of the waiving\nparty. No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such waiver shall operate only as to\nthe specific term or condition waived and shall not constitute a waiver of such term or condition for the future or as to any act other than that\nspecifically waived.\n(f) Governing Law. This agreement shall be governed by and construed in accordance with the laws of the State of Delaware without\nregard to its principles of conflicts of law.\n(g) Successors; Binding Agreement. This Agreement and the rights and obligations of the Company and me under this Agreement shall\ninure to our benefit and to the benefit of our respective heirs, personal representatives, successors and assigns. I specifically agree that the Company\nmay assign this Agreement to any successor.\n(h) Entire Agreement. This Agreement, and the Employment Agreement, set forth the entire agreement and understanding of the\nCompany and me with respect of its subject matter, and supersedes all prior agreements, promises, covenants, arrangements, communications,\nrepresentations or warranties, whether oral or written, by any officer, executive or representative of either party in respect of said subject matter.\n(i) Headings Descriptive. The headings of the Sections of this Agreement are inserted for convenience only and shall not in any way\naffect the meaning or construction of this Agreement.\n5\n(j) Capacity. I represent and warrant that I am not a party to any agreement that would prohibit me from entering into this Agreement or\nperforming fully my obligations under this Agreement.\nDate: March 19, 2010\n/s/ Mark Leuchetenberger\nSignature\nMark Leuchtenberger\n6	EX-10.37 15 d255425dex1037.htm EMPLOYEE NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT,\nMARK LEUCHTENBERGER\nExhibit 10.37\nExecution Copy\nRIB-X PHARMACEUTICALS, INC.\nEMPLOYEE NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT\nAs a condition of my employment with Rib-X Pharmaceuticals, Inc. its subsidiaries, affiliates, successors or assigns (together the “Company”),\nand in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by the Company, I\nagree to the following:\n1. Company’s Business. I acknowledge that the Company is engaged in the business of discovering, developing and commercializing\nantibiotics (the “Business”).\n2. Confidential Information. I acknowledge that for the purposes of this Agreement, the term “Confidential Information” shall mean all\ninformation (financial, technical or otherwise) in whatever form (written, oral or otherwise) that relates to the Company’s Business and which is\ndisclosed to me or acquired by me in the course of my employment in any way concerning the trade secrets, projects, activities, business, clients,\ntrade practices, know-how or affairs of the Company, its parents, subsidiaries and affiliates, including, without limitation, all information concerning\nresearch, development tools, applications, products, business formulas, discoveries, ideas, concepts, know-how, techniques, diagrams, flow charts,\ndata, algorithms, source and object code, methods of operations, solutions, tools, marketing and development plans, customer or investor names,\ntransactions, acquisitions, all marketing plans, strategies and forecasts and other technical or business information, regarding existing and/or\ncontemplated products, processes, techniques or know-how, or any data or information developed by me pursuant to the performance of my services\nhereunder. I further understand that Confidential Information does not include any of the foregoing items which have become publicly known and\nmade generally available through no wrongful act of mine or of others who were under confidentiality obligations as to the Confidential Information\ninvolved.\n3. Use of Confidential Information.\n(a) During the course of my employment, I acknowledge that I will have access to Confidential Information. Therefore, during the term\nof my employment, and for all times thereafter, I will treat as confidential and, except as required in the performance of my employment duties and\nresponsibilities, will not disclose, publish, use or otherwise make available to the public or to any individual, firm or corporation any Confidential\nInformation.\n(b) I shall notify the Company immediately upon discovery of any unauthorized disclosure of Confidential Information, use of\nConfidential Information other than in carrying out my duties with the Company, or any other breach of this Agreement by me, and will cooperate\nwith the Company in every reasonable way to help the Company regain possession of the Confidential Information and prevent its further\nunauthorized use.\n4. Return of Confidential Information. I agree that all Confidential Information, together with all notes and records relating thereto, and all\ncopies, duplicates, reproductions, facsimiles or excerpts thereof in my possession, are the exclusive property of the Company. I will return promptly\nall such materials to the Company upon the termination of my employment or upon the Company’s demand. In addition, I will return promptly to the\nCompany upon the\nconclusion of my employment all reports, files, memoranda, records and software, credit cards, cardkey passes, door and file keys, computer access\ncodes or disks, instructional material, and other physical or personal property which I receive or prepare in connection with my employment with the\nCompany.\n5. Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose any\nproprietary information or trade secrets of any former or concurrent employer or other person or entity and that I will not bring onto the premises of\nthe Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing\nby such employer, person or entity.\n6. Third Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential or\nproprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain\nlimited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm\nor corporation or to use it except as necessary in carrying out my duties for the Company consistent with the Company’s agreement with such third\nparty.\n7. Proprietary Rights.\n(a) I agree to assign, and hereby assign, to the Company, without additional compensation, all right, title and interest in all creations,\ninventions, ideas, designs, copyrightable materials, trademarks, and other technology and rights (and any related improvements or modifications),\nwhether or not subject to patent or copyright protection (collectively, “Creations™), relating to any activities of the Company that are conceived or\ndeveloped by me in the course of my employment, whether conceived alone or with others and whether or not conceived or developed during regular\nbusiness hours, and if based on Confidential Information, after the termination of my employment for any reason. Such Creations shall be the sole\nproperty of the Company and, to the maximum extent permitted by applicable law, shall be deemed “works made for hire” as the term is used in the\nUnited States Copyright Act.\n(b) I agree to promptly inform the Company of any such Creations. I will also allow the Company to inspect any Creations I conceive or\ndevelop within (i) one (1) year after the termination of my employment for any reason, or (ii) during the Salary Continuation Period (as that term is\ndefined in the Employment Agreement), whichever period is greater, to determine if they are based on Confidential Information. I will (whether\nduring my employment or after the termination of my employment) execute such written instruments and do other such acts as may be necessary in\nthe opinion of the Company or its counsel to secure the Company’s rights in the Creations, including obtaining a patent, registering a copyright, or\notherwise (and I hereby irrevocably appoint the Company and any of its officers as my attorney in fact to undertake such acts in my name). I agree\nthat my obligation to execute written instruments and otherwise assist the Company in securing its rights in the Creations will continue after the\ntermination of my employment for any reason.\n(c) To the extent, if any, that I retain any right, title or interest with respect to any Creations that are delivered to the Company or relate to\nmy employment with the Company, I hereby grant to the Company an irrevocable, paid-up, transferable, sub-licensable, worldwide right and license\n(i) to modify all or any portion of such Creations, including, without limitation, the making of additions to or deletions from such Creations,\nregardless of the medium (now or hereafter known) into which such Creations may be modified and regardless of the effect of such modifications on\nthe integrity of such Creations, and (ii) to identify me, or not to identify me, as one or more authors of or contributors to such Creations or any\nportion thereof, whether or not such Creations or any portion thereof have been modified. I further waive any “moral” rights, or other rights with\nrespect to attribution of authorship or integrity of such Creations that I may have under any applicable law, whether under copyright, trademark,\nunfair competition, defamation, right of privacy, contract, tort or other legal theory.\n(d) I have attached to this Agreement as Exhibit A, a list describing all inventions, original works of authorship, developments,\nimprovements, and trade secrets which were made by me prior to my employment with the Company (collectively referred to as “Prior Inventions”),\nwhich belong to me, which relate to the Company’s proposed business, products or research and development, and which are not assigned to the\nCompany hereunder; or, if no such list is attached, I represent that there are no such Prior Inventions. If in the course of my employment with the\nCompany, I incorporate into a Company product, process or machine a Prior Invention owned by me or in which I have an interest, the Company is\nhereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell such\nPrior Invention as part of or in connection with such product, process or machine.\n8. Conflicting Employment. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation, consulting or other business activity competitive with the Business of the Company, nor will I engage in any other activities that conflict\nwith my obligations to the Company.\n9. Non-Competition. During my employment and for a period of one (1) year following the date on which my employment with the Company\nterminates for any reason (the “Restricted Period”), I shall not, directly or indirectly, own, manage, operate, control or participate in the ownership,\nmanagement or control of, or be connected as an officer, employee, partner, director, or otherwise with, or have any financial interest in, or aid or\nassist anyone else in the conduct of, any entity or business (existing on the date that my employment with the Company terminates and/or during the\none-year period thereafter) that competes with the Business conducted by the Company or any of its subsidiaries or affiliates within any area in\nwhich the Company conducts its Business on the date that my employment with the Company terminates. Notwithstanding the foregoing, my\nownership of securities of a public company engaged in competition with the Company’s Business not in excess of two percent (2%) of any class of\nsuch securities shall not be considered a breach of the covenants set forth in this Section.\n \n10. Non-Solicitation. I agree that during the Restricted Period, I will not, directly or indirectly, take any of the following actions, and, to the\nextent that I own, manage, operate, control, am employed by or participate in the ownership, management, operation or control of, or am connected\nin any manner with, any business of the type and character engaged in and\n3\ncompetitive with the Business of the Company or any of its subsidiaries or affiliates during the period of my employment, I will use my best efforts\nto ensure that such business does not take any of the following actions:\n(a) persuade or attempt to persuade any customer of the Company to cease doing business with the Company or any of its subsidiaries or\naffiliates, or to reduce the amount of business it does with the Company or any of its subsidiaries or affiliates;\n(b) solicit for me or for any person or entity other than the Company, the business of any customer of the Company or any of its\nsubsidiaries or affiliates that was a customer of the Company within six months prior to the termination of my employment;\n(c) persuade or attempt to persuade any present employee of the Company or any of its subsidiaries or affiliates, or any individual who\nwas its employee or any of its subsidiaries or affiliates during the two (2) years prior to the termination of my employment, to leave the employ of\nthe Company or any of its subsidiaries or affiliates; or\n(d) knowingly hire or offer employment to any present senior (at the level of vice president or higher) employee of the Company or any\nof its subsidiaries or affiliates, or any individual who was its senior (at the level of vice president or higher), employee or any of its subsidiaries or\naffiliates during the two (2) years prior to the termination of my employment.\n11. Special Remedy. I recognize that the Confidential Information to be protected by this Agreement is special, unique and extraordinary in\ncharacter, and that in the event of any breach by me of any of the terms or conditions of this Agreement, the Company shall be entitled, if it so elects,\nto institute and prosecute proceedings in any court of competent jurisdiction, either in law or in equity, to obtain damages from me for any such\nbreach or to enforce the specific performance of this Agreement by me. I further acknowledge that a breach of my obligations under this Agreement\ncould cause the Company irreparable harm for which no adequate remedy at law would be available, and that the Company in such circumstances\nwould be entitled to injunctive relief preventing or enjoining any breach of my obligations, without the need to post any bond. I specifically consent\nto the jurisdiction of the United States District Court for the District of Connecticut, or if that court is unable to exercise jurisdiction for any reason,\nto the Superior Court of Connecticut, the New Haven Judicial Branch, for this purpose and irrevocably waive any objection I now have or hereafter\nmay have as to the venue of any such action brought under this Section.\n12. Miscellaneous.\n(a) Covenants Reasonable. I expressly acknowledge and agree that the covenants set forth herein are reasonable in all respects, and\nnecessary in order to protect, maintain and preserve the value and goodwill of the Company, as well as the proprietary and other legitimate business\ninterests of the Company. I further acknowledge and agree that the covenants and agreements set forth herein constitute a significant part of the\nconsideration given by me to the Company in exchange for the payment of my salary and benefits by the Company, and are a material reason for\nsuch payment.\n(b) Indemnification. I agree to indemnify and hold the Company harmless from and against any and all damages, losses or expenses,\nincluding attorneys’ fees, relating to any breach by me of my obligations under this Agreement.\n(c) At-Will Employment. I understand and acknowledge that this Agreement is not intended to, and shall not be construed as, creating a\ncontract of employment for any specific duration. Unless I have entered into a written employment contract signed by an officer of the Company\nproviding otherwise, my employment with the Company remains “at-will”, meaning that either I or the Company may, at any time, terminate my\nemployment with or without cause and with or without notice.\n(d) Validity. I agree that the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement, which shall otherwise remain in full force and effect. Moreover, if any one or more of the\nprovisions contained in this Agreement is held to be excessively broad as to duration, scope or activity, I agree that such provisions shall be\nconstrued by limiting and reducing them so as to be enforceable to the maximum extent compatible with applicable law.\n(e) Waivers. The waiver by the Company or me of any right under this Agreement or of any failure to perform or any breach by the\nother shall not be deemed a waiver of any other right under this Agreement or of any other failure or any other breach by such party, whether of the\nsame or a similar nature or otherwise. No waiver shall be deemed to have occurred unless set forth in writing executed by or on behalf of the waiving\nparty. No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such waiver shall operate only as to\nthe specific term or condition waived and shall not constitute a waiver of such term or condition for the future or as to any act other than that\nspecifically waived.\n(f) Governing Law. This agreement shall be governed by and construed in accordance with the laws of the State of Delaware without\nregard to its principles of conflicts of law.\n(g) Successors; Binding Agreement. This Agreement and the rights and obligations of the Company and me under this Agreement shall\ninure to our benefit and to the benefit of our respective heirs, personal representatives, successors and assigns. I specifically agree that the Company\nmay assign this Agreement to any successor.\n(h) Entire Agreement. This Agreement, and the Employment Agreement, set forth the entire agreement and understanding of the\nCompany and me with respect of its subject matter, and supersedes all prior agreements, promises, covenants, arrangements, communications,\nrepresentations or warranties, whether oral or written, by any officer, executive or representative of either party in respect of said subject matter.\n(i) Headings Descriptive. The headings of the Sections of this Agreement are inserted for convenience only and shall not in any way\naffect the meaning or construction of this Agreement.\n(j) Capacity. I represent and warrant that I am not a party to any agreement that would prohibit me from entering into this Agreement or\nperforming fully my obligations under this Agreement.\nDate: March 19, 2010 /s/ Mark Leuchetenberger\nSignature\nMark Leuchtenberger	EX-10.37 15 d255425dex1037.hti EMPLOYEE NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT,\nMARK LEUCHTENBERGER\nExhibit 10.37\nExecution Copy\nRIB-X PHARMACEUTICALS, INC.\nEMPLOYEE NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT\nAs a condition of my employment with Rib-X Pharmaceuticals, Inc. its subsidiaries, affiliates, successors or assigns (together the "Company"),\nand in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by the Company, I\nagree to the following\n1. Company's Business. I acknowledge that the Company is engaged in the business of discovering, developing and commercializing\nantibiotics (the "Business").\n2. Confidential Information. I acknowledge that for the purposes of this Agreement, the term "Confidential Information" shall mean all\ninformation (financial, technical or otherwise) in whatever form (written, oral or otherwise) that relates to the Company's Business and which is\ndisclosed to me or acquired by me in the course of my employment in any way concerning the trade secrets, projects, activities, business, clients,\ntrade practices, know-how or affairs of the Company, its parents, subsidiaries and affiliates, including, without limitation, all information concerning\nresearch, development tools, applications, products, business formulas, discoveries, ideas, concepts, know-how, techniques, diagrams, flow charts,\ndata, algorithms, source and object code, methods of operations, solutions, tools, marketing and development plans, customer or investor names,\ntransactions, acquisitions, all marketing plans, strategies and forecasts and other technical or business information, regarding existing and/or\ncontemplated products, processes, techniques or know-how, or any data or information developed by me pursuant to the performance of my services\nhereunder. I further understand that Confidential Information does not include any of the foregoing items which have become publicly known and\nmade generally available through no wrongful act of mine or of others who were under confidentiality obligations as to the Confidential Information\ninvolved.\n3. Use of Confidential Information.\n(a)\nDuring\nthe course of my employment, I acknowledge that I will have access to Confidential Information. Therefore, during the\nterm\nof my employment, and for all times thereafter, I will treat as confidential and, except as required in the performance of my employment duties and\nresponsibilities, will not disclose, publish, use or otherwise make available to the public or to any individual, firm or corporation any Confidential\nInformation.\n(b) I shall notify the Company immediately upon discovery of any unauthorized disclosure of Confidential Information, use of\nConfidential\nInformation\nother\nthan\nin\ncarrying\nout\nmy\nduties\nwith\nthe\nCompany,\nor\nany\nother\nbreach\nof\nthis\nAgreement\nby\nme,\nand\nwill\ncooperate\nwith the Company in every reasonable way to help the Company regain possession of the Confidential Information and prevent its further\nunauthorized use.\n4. Return of Confidential Information I agree that all Confidential Information, together with all notes and records relating thereto, and all\ncopies, duplicates, reproductions, facsimiles or excerpts thereof in my possession, are the exclusive property of the Company. I will return promptly\nall such materials to the Company upon the termination of my employment or upon the Company's demand. In addition, I will return promptly to the\nCompany upon the\nconclusion of my employment all reports, files, memoranda, records and software, credit cards, cardkey passes, door and file keys, computer access\ncodes or disks, instructional material, and other physical or personal property which I receive or prepare in connection with my employment with the\nCompany.\n5. Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose any\nproprietary\ninformation or trade secrets of any former or concurrent employer or other person or entity and that I will not bring onto the premises of\nthe Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing\nby such employer, person or entity.\n6. Third Party. Information. I recognize that the Company has received and in the future will receive from third parties their confidential or\nproprietary information subject to a duty on the Company's part to maintain the confidentiality of such information and to use it only for certain\nlimited\npurposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm\nor corporation or to use it except as necessary in carrying out my duties for the Company consistent with the Company's agreement with such third\nparty.\n7. Proprietary Rights.\n(a) I agree to assign, and hereby assign, to the Company, without additional compensation, all right, title and interest in all creations,\ninventions, ideas, designs, copyrightable materials, trademarks, and other technology and rights (and any related improvements or modifications),\nwhether or not subject to patent or copyright protection (collectively, "Creations"), relating to any activities of the Company that are conceived or\ndeveloped by me in the course of my employment, whether conceived alone or with others and whether or not conceived or developed during regular\nbusiness hours, and if based on Confidential Information, after the termination of my employment for any reason. Such Creations shall be the sole\nproperty of the Company and, to the maximum extent permitted by applicable law, shall be deemed "works made for hire" as the term is used in the\nUnited States Copyright Act.\n(b) I agree to promptly inform the Company of any such Creations. I will also allow the Company to inspect any Creations I conceive or\ndevelop within (i) one (1) year after the termination of my employment for any reason, or (ii) during the Salary Continuation Period (as that term is\ndefined in the Employment Agreement), whichever period is greater, to determine if they are based on Confidential Information. I will (whether\nduring my employment or after the termination of my employment) execute such written instruments and do other such acts as may be necessary in\nthe opinion of the Company or its counsel to secure the Company's rights in the Creations, including obtaining a patent, registering a copyright, or\notherwise (and I hereby irrevocably appoint the Company and any of its officers as my attorney in fact to undertake such acts in my name). I agree\nthat my obligation to execute written instruments and otherwise assist the Company in securing its rights in the Creations will continue after the\ntermination of my employment for any reason.\n2\n(c) To the extent, if any, that I retain any right, title or interest with respect to any Creations that are delivered to the Company or relate to\nmy employment with the Company, I hereby grant to the Company an irrevocable, paid-up, transferable, sub-licensable, worldwide right and license\n(i) to modify all or any portion of such Creations, including, without limitation, the making of additions to or deletions from such Creations,\nregardless of the medium (now or hereafter known) into which such Creations may be modified and regardless of the effect of such modifications on\nthe integrity of such Creations, and (ii) to identify me, or not to identify me, as one or more authors of or contributors to such Creations or any\nportion thereof, whether or not such Creations or any portion thereof have been modified. I further waive any "moral" rights, or other rights with\nrespect to attribution of authorship or integrity of such Creations that I may have under any applicable law, whether under copyright, trademark,\nunfair competition, defamation, right of privacy, contract, tort or other legal theory.\n(d) I have attached to this Agreement as Exhibit A, a list describing all inventions, original works of authorship, developments,\nimprovements, and trade secrets which were made by me prior to my employment with the Company (collectively referred to as "Prior Inventions"),\nwhich belong to me, which relate to the Company's proposed business, products or research and development, and which are not assigned to the\nCompany hereunder; or, if no such list is attached, I represent that there are no such Prior Inventions. If in the course of my employment with the\nCompany, I incorporate into a Company product, process or machine a Prior Invention owned by me or in which I have an interest, the Company is\nhereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell such\nPrior Invention as part of or in connection with such product, process or machine.\n8. Conflicting Employment. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation, consulting or other business activity competitive with the Business of the Company, nor will I engage in any other activities that conflict\nwith my obligations to the Company.\n9. Non-Competition. During my employment and for a period of one (1) year following the date on which my employment with the Company\nterminates for any reason (the "Restricted Period"), I shall not, directly or indirectly, own, manage, operate, control or participate in the ownership,\nmanagement or control of, or be connected as an officer, employee, partner, director, or otherwise with, or have any financial interest in, or aid or\nassist anyone else in the conduct of, any entity or business (existing on the date that my employment with the Company terminates and/or during the\none-year period thereafter) that competes with the Business conducted by the Company or any of its subsidiaries or affiliates within any area in\nwhich the Company conducts its Business on the date that my employment with the Company terminates. Notwithstanding the foregoing, my\nownership of securities of a public company engaged in competition with the Company's Business not in excess of two percent (2%) of any class of\nsuch securities shall not be considered a breach of the covenants set forth in this Section.\n10. Non-Solicitation. I agree that during the Restricted Period, I will not, directly or indirectly, take any of the following actions, and, to the\nextent that I own, manage, operate, control, am employed by or participate in the ownership, management, operation or control of, or am connected\nin any manner with, any business of the type and character engaged in and\n3\ncompetitive with the Business of the Company or any of its subsidiaries or affiliates during the period of my employment, I will use my best efforts\nto ensure that such business does not take any of the following actions:\n(a) persuade or attempt to persuade any customer of the Company to cease doing business with the Company or any of its subsidiaries or\naffiliates, or to reduce the amount of business it does with the Company or any of its subsidiaries or affiliates;\n(b) solicit for me or for any person or entity other than the Company, the business of any customer of the Company or any\nof\nits\nsubsidiaries or affiliates that was a customer of the Company within six months prior to the termination of my employment;\n(c) persuade or attempt to persuade any present employee of the Company or any of its subsidiaries or affiliates, or any individual who\nwas its employee or any of its subsidiaries or affiliates during the two (2) years prior to the termination of my employment, to leave the employ of\nthe Company or any of its subsidiaries or affiliates; or\n(d) knowingly hire or offer employment to any present senior (at the level of vice president or higher) employee of the Company or any\nof its subsidiaries or affiliates, or any individual who was its senior (at the level of vice president or higher), employee or any of its subsidiaries or\naffiliates during the two (2) years prior to the termination of my employment.\n11. Special Remedy.. I recognize that the Confidential Information to be protected by this Agreement is special, unique and extraordinary in\ncharacter, and that in the event of any breach by me of any of the terms or conditions of this Agreement, the Company shall be entitled, if it so elects,\nto institute and prosecute proceedings in any court of competent jurisdiction, either in law or in equity, to obtain damages from me for any such\nbreach or to enforce the specific performance of this Agreement by me. I further acknowledge that a breach of my obligations under this Agreement\ncould cause the Company irreparable harm for which no adequate remedy at law would be available, and that the Company in such circumstances\nwould be entitled to injunctive relief preventing or enjoining any breach of my obligations, without the need to post any bond. I specifically consent\nto the jurisdiction of the United States District Court for the District of Connecticut, or if that court is unable to exercise jurisdiction for any\nreason,\nto the Superior Court of Connecticut, the New Haven Judicial Branch, for this purpose and irrevocably waive any objection I now have or hereafter\nmay have as to the venue of any such action brought under this Section.\n12. Miscellaneous.\n(a) Covenants Reasonable. I expressly acknowledge and agree that the covenants set forth herein are reasonable in all respects, and\nnecessary in order to protect, maintain and preserve the value and goodwill of the Company, as well as the proprietary and other legitimate business\ninterests of the Company. I further acknowledge and agree that the covenants and agreements set forth herein constitute a significant part of the\nconsideration given by me to the Company in exchange for the payment of my salary and benefits by the Company, and are a material reason for\nsuch payment.\n4\n(b) Indemnification. I agree to indemnify and hold the Company harmless from and against any and all damages, losses or expenses,\nincluding attorneys' fees, relating to any breach by me of my obligations under this Agreement.\n(c) At-Will Employment. I understand and acknowledge that this Agreement is not intended to, and shall not be construed as, creating\na\ncontract of employment for any specific duration. Unless I have entered into a written employment contract signed by an officer of the Company\nproviding otherwise, my employment with the Company remains "at-will", meaning that either I or the Company may, at any time, terminate my\nemployment with or without cause and with or without notice.\n(d) Validity. I agree that the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement, which shall otherwise remain in full force and effect. Moreover, if any one or more of the\nprovisions contained in this Agreement is held to be excessively broad as to duration, scope or activity, I agree that such provisions shall be\nconstrued by limiting and reducing them so as to be enforceable to the maximum extent compatible with applicable law.\n(e) Waivers. The waiver by the Company or me of any right under this Agreement or of any failure to perform or any breach by the\nother shall not be deemed a waiver of any other right under this Agreement or of any other failure or any other breach by such party, whether of the\nsame or a similar nature or otherwise. No waiver shall be deemed to have occurred unless set forth in writing executed by or on behalf of the waiving\nparty. No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such waiver shall operate only as to\nthe specific term or condition waived and shall not constitute a waiver of such term or condition for the future or as to any act other than that\nspecifically waived.\n(f) Governing Law. This agreement shall be governed by and construed in accordance with the laws of the State of Delaware without\nregard to its principles of conflicts of law.\n(g) Successors; Binding Agreement. This Agreement and the rights and obligations of the Company and me under this Agreement shall\ninure to our benefit and to the benefit of our respective heirs, personal representatives, successors and assigns. I specifically agree that the Company\nmay assign this Agreement to any successor.\n(h) Entire Agreement. This Agreement, and the Employment Agreement, set forth the entire agreement and understanding of the\nCompany and me with respect of its subject matter, and supersedes all prior agreements, promises, covenants, arrangements, communications,\nrepresentations or warranties, whether oral or written, by any officer, executive or representative of either party in respect of said subject matter.\n(i) Headings Descriptive. The headings of the Sections of this Agreement are inserted for convenience only and shall not in any way\naffect the meaning or construction of this Agreement.\n5\n(j) Capacity. I represent and warrant that I am not a party to any agreement that would prohibit me from entering into this Agreement or\nperforming fully my obligations under this Agreement.\nDate: March 19, 2010\n/s/ Mark Leuchetenberger\nSignature\nMark Leuchtenberger\n6	EX-10.37 15 d255425dex1037.htm EMPLOYEE NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT,\nMARK LEUCHTENBERGER\nExhibit 10.37\nExecution Copy\nRIB-X PHARMACEUTICALS, INC.\nEMPLOYEE NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT\nAs a condition of my employment with Rib-X Pharmaceuticals, Inc. its subsidiaries, affiliates, successors or assigns (together the “Company”),\nand in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by the Company, I\nagree to the following:\n1. Company’s Business. I acknowledge that the Company is engaged in the business of discovering, developing and commercializing\nantibiotics (the “Business”).\n2. Confidential Information. I acknowledge that for the purposes of this Agreement, the term “Confidential Information” shall mean all\ninformation (financial, technical or otherwise) in whatever form (written, oral or otherwise) that relates to the Company’s Business and which is\ndisclosed to me or acquired by me in the course of my employment in any way concerning the trade secrets, projects, activities, business, clients,\ntrade practices, know-how or affairs of the Company, its parents, subsidiaries and affiliates, including, without limitation, all information concerning\nresearch, development tools, applications, products, business formulas, discoveries, ideas, concepts, know-how, techniques, diagrams, flow charts,\ndata, algorithms, source and object code, methods of operations, solutions, tools, marketing and development plans, customer or investor names,\ntransactions, acquisitions, all marketing plans, strategies and forecasts and other technical or business information, regarding existing and/or\ncontemplated products, processes, techniques or know-how, or any data or information developed by me pursuant to the performance of my services\nhereunder. I further understand that Confidential Information does not include any of the foregoing items which have become publicly known and\nmade generally available through no wrongful act of mine or of others who were under confidentiality obligations as to the Confidential Information\ninvolved.\n3. Use of Confidential Information.\n(a) During the course of my employment, I acknowledge that I will have access to Confidential Information. Therefore, during the term\nof my employment, and for all times thereafter, I will treat as confidential and, except as required in the performance of my employment duties and\nresponsibilities, will not disclose, publish, use or otherwise make available to the public or to any individual, firm or corporation any Confidential\nInformation.\n(b) I shall notify the Company immediately upon discovery of any unauthorized disclosure of Confidential Information, use of\nConfidential Information other than in carrying out my duties with the Company, or any other breach of this Agreement by me, and will cooperate\nwith the Company in every reasonable way to help the Company regain possession of the Confidential Information and prevent its further\nunauthorized use.\n4. Return of Confidential Information. I agree that all Confidential Information, together with all notes and records relating thereto, and all\ncopies, duplicates, reproductions, facsimiles or excerpts thereof in my possession, are the exclusive property of the Company. I will return promptly\nall such materials to the Company upon the termination of my employment or upon the Company’s demand. In addition, I will return promptly to the\nCompany upon the\nconclusion of my employment all reports, files, memoranda, records and software, credit cards, cardkey passes, door and file keys, computer access\ncodes or disks, instructional material, and other physical or personal property which I receive or prepare in connection with my employment with the\nCompany.\n5. Former Employer Information. I agree that I will not, during my employment with the Company, improperly use or disclose any\nproprietary information or trade secrets of any former or concurrent employer or other person or entity and that I will not bring onto the premises of\nthe Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing\nby such employer, person or entity.\n6. Third Party Information. I recognize that the Company has received and in the future will receive from third parties their confidential or\nproprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain\nlimited purposes. I agree to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm\nor corporation or to use it except as necessary in carrying out my duties for the Company consistent with the Company’s agreement with such third\nparty.\n7. Proprietary Rights.\n(a) I agree to assign, and hereby assign, to the Company, without additional compensation, all right, title and interest in all creations,\ninventions, ideas, designs, copyrightable materials, trademarks, and other technology and rights (and any related improvements or modifications),\nwhether or not subject to patent or copyright protection (collectively, “Creations”), relating to any activities of the Company that are conceived or\ndeveloped by me in the course of my employment, whether conceived alone or with others and whether or not conceived or developed during regular\nbusiness hours, and if based on Confidential Information, after the termination of my employment for any reason. Such Creations shall be the sole\nproperty of the Company and, to the maximum extent permitted by applicable law, shall be deemed “works made for hire” as the term is used in the\nUnited States Copyright Act.\n(b) I agree to promptly inform the Company of any such Creations. I will also allow the Company to inspect any Creations I conceive or\ndevelop within (i) one (1) year after the termination of my employment for any reason, or (ii) during the Salary Continuation Period (as that term is\ndefined in the Employment Agreement), whichever period is greater, to determine if they are based on Confidential Information. I will (whether\nduring my employment or after the termination of my employment) execute such written instruments and do other such acts as may be necessary in\nthe opinion of the Company or its counsel to secure the Company’s rights in the Creations, including obtaining a patent, registering a copyright, or\notherwise (and I hereby irrevocably appoint the Company and any of its officers as my attorney in fact to undertake such acts in my name). I agree\nthat my obligation to execute written instruments and otherwise assist the Company in securing its rights in the Creations will continue after the\ntermination of my employment for any reason.\n2\n(c) To the extent, if any, that I retain any right, title or interest with respect to any Creations that are delivered to the Company or relate to\nmy employment with the Company, I hereby grant to the Company an irrevocable, paid-up, transferable, sub-licensable, worldwide right and license\n(i) to modify all or any portion of such Creations, including, without limitation, the making of additions to or deletions from such Creations,\nregardless of the medium (now or hereafter known) into which such Creations may be modified and regardless of the effect of such modifications on\nthe integrity of such Creations, and (ii) to identify me, or not to identify me, as one or more authors of or contributors to such Creations or any\nportion thereof, whether or not such Creations or any portion thereof have been modified. I further waive any “moral” rights, or other rights with\nrespect to attribution of authorship or integrity of such Creations that I may have under any applicable law, whether under copyright, trademark,\nunfair competition, defamation, right of privacy, contract, tort or other legal theory.\n(d) I have attached to this Agreement as Exhibit A, a list describing all inventions, original works of authorship, developments,\nimprovements, and trade secrets which were made by me prior to my employment with the Company (collectively referred to as “Prior Inventions”),\nwhich belong to me, which relate to the Company’s proposed business, products or research and development, and which are not assigned to the\nCompany hereunder; or, if no such list is attached, I represent that there are no such Prior Inventions. If in the course of my employment with the\nCompany, I incorporate into a Company product, process or machine a Prior Invention owned by me or in which I have an interest, the Company is\nhereby granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell such\nPrior Invention as part of or in connection with such product, process or machine.\n8. Conflicting Employment. I agree that, during the term of my employment with the Company, I will not engage in any other employment,\noccupation, consulting or other business activity competitive with the Business of the Company, nor will I engage in any other activities that conflict\nwith my obligations to the Company.\n9. Non-Competition. During my employment and for a period of one (1) year following the date on which my employment with the Company\nterminates for any reason (the “Restricted Period”), I shall not, directly or indirectly, own, manage, operate, control or participate in the ownership,\nmanagement or control of, or be connected as an officer, employee, partner, director, or otherwise with, or have any financial interest in, or aid or\nassist anyone else in the conduct of, any entity or business (existing on the date that my employment with the Company terminates and/or during the\none-year period thereafter) that competes with the Business conducted by the Company or any of its subsidiaries or affiliates within any area in\nwhich the Company conducts its Business on the date that my employment with the Company terminates. Notwithstanding the foregoing, my\nownership of securities of a public company engaged in competition with the Company’s Business not in excess of two percent (2%) of any class of\nsuch securities shall not be considered a breach of the covenants set forth in this Section.\n10. Non-Solicitation. I agree that during the Restricted Period, I will not, directly or indirectly, take any of the following actions, and, to the\nextent that I own, manage, operate, control, am employed by or participate in the ownership, management, operation or control of, or am connected\nin any manner with, any business of the type and character engaged in and\n3\ncompetitive with the Business of the Company or any of its subsidiaries or affiliates during the period of my employment, I will use my best efforts\nto ensure that such business does not take any of the following actions:\n(a) persuade or attempt to persuade any customer of the Company to cease doing business with the Company or any of its subsidiaries or\naffiliates, or to reduce the amount of business it does with the Company or any of its subsidiaries or affiliates;\n(b) solicit for me or for any person or entity other than the Company, the business of any customer of the Company or any of its\nsubsidiaries or affiliates that was a customer of the Company within six months prior to the termination of my employment;\n(c) persuade or attempt to persuade any present employee of the Company or any of its subsidiaries or affiliates, or any individual who\nwas its employee or any of its subsidiaries or affiliates during the two (2) years prior to the termination of my employment, to leave the employ of\nthe Company or any of its subsidiaries or affiliates; or\n(d) knowingly hire or offer employment to any present senior (at the level of vice president or higher) employee of the Company or any\nof its subsidiaries or affiliates, or any individual who was its senior (at the level of vice president or higher), employee or any of its subsidiaries or\naffiliates during the two (2) years prior to the termination of my employment.\n11. Special Remedy. I recognize that the Confidential Information to be protected by this Agreement is special, unique and extraordinary in\ncharacter, and that in the event of any breach by me of any of the terms or conditions of this Agreement, the Company shall be entitled, if it so elects,\nto institute and prosecute proceedings in any court of competent jurisdiction, either in law or in equity, to obtain damages from me for any such\nbreach or to enforce the specific performance of this Agreement by me. I further acknowledge that a breach of my obligations under this Agreement\ncould cause the Company irreparable harm for which no adequate remedy at law would be available, and that the Company in such circumstances\nwould be entitled to injunctive relief preventing or enjoining any breach of my obligations, without the need to post any bond. I specifically consent\nto the jurisdiction of the United States District Court for the District of Connecticut, or if that court is unable to exercise jurisdiction for any reason,\nto the Superior Court of Connecticut, the New Haven Judicial Branch, for this purpose and irrevocably waive any objection I now have or hereafter\nmay have as to the venue of any such action brought under this Section.\n12. Miscellaneous.\n(a) Covenants Reasonable. I expressly acknowledge and agree that the covenants set forth herein are reasonable in all respects, and\nnecessary in order to protect, maintain and preserve the value and goodwill of the Company, as well as the proprietary and other legitimate business\ninterests of the Company. I further acknowledge and agree that the covenants and agreements set forth herein constitute a significant part of the\nconsideration given by me to the Company in exchange for the payment of my salary and benefits by the Company, and are a material reason for\nsuch payment.\n4\n(b) Indemnification. I agree to indemnify and hold the Company harmless from and against any and all damages, losses or expenses,\nincluding attorneys’ fees, relating to any breach by me of my obligations under this Agreement.\n(c) At-Will Employment. I understand and acknowledge that this Agreement is not intended to, and shall not be construed as, creating a\ncontract of employment for any specific duration. Unless I have entered into a written employment contract signed by an officer of the Company\nproviding otherwise, my employment with the Company remains “at-will”, meaning that either I or the Company may, at any time, terminate my\nemployment with or without cause and with or without notice.\n(d) Validity. I agree that the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or\nenforceability of any other provision of this Agreement, which shall otherwise remain in full force and effect. Moreover, if any one or more of the\nprovisions contained in this Agreement is held to be excessively broad as to duration, scope or activity, I agree that such provisions shall be\nconstrued by limiting and reducing them so as to be enforceable to the maximum extent compatible with applicable law.\n(e) Waivers. The waiver by the Company or me of any right under this Agreement or of any failure to perform or any breach by the\nother shall not be deemed a waiver of any other right under this Agreement or of any other failure or any other breach by such party, whether of the\nsame or a similar nature or otherwise. No waiver shall be deemed to have occurred unless set forth in writing executed by or on behalf of the waiving\nparty. No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such waiver shall operate only as to\nthe specific term or condition waived and shall not constitute a waiver of such term or condition for the future or as to any act other than that\nspecifically waived.\n(f) Governing Law. This agreement shall be governed by and construed in accordance with the laws of the State of Delaware without\nregard to its principles of conflicts of law.\n(g) Successors; Binding Agreement. This Agreement and the rights and obligations of the Company and me under this Agreement shall\ninure to our benefit and to the benefit of our respective heirs, personal representatives, successors and assigns. I specifically agree that the Company\nmay assign this Agreement to any successor.\n(h) Entire Agreement. This Agreement, and the Employment Agreement, set forth the entire agreement and understanding of the\nCompany and me with respect of its subject matter, and supersedes all prior agreements, promises, covenants, arrangements, communications,\nrepresentations or warranties, whether oral or written, by any officer, executive or representative of either party in respect of said subject matter.\n(i) Headings Descriptive. The headings of the Sections of this Agreement are inserted for convenience only and shall not in any way\naffect the meaning or construction of this Agreement.\n5\n(j) Capacity. I represent and warrant that I am not a party to any agreement that would prohibit me from entering into this Agreement or\nperforming fully my obligations under this Agreement.\nDate: March 19, 2010\n/s/ Mark Leuchetenberger\nSignature\nMark Leuchtenberger\n6
+fdf657ad612664d6f363040992f9a93c.pdf	effective_date jurisdiction party term	EX-7.2 3 dex72.htm CONFIDENTIALITY AGREEMENT\nExhibit 7.2\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement dated as of January 27, 2011 (the “Agreement”), is entered into between 99¢ Only Stores, a California\ncorporation (the Company”), and Leonard Green & Partners, L.P., a Limited Partnership (“Counterparty”). Each of the Company and Counterparty\nare referred to herein as a “Party.”\nRECITALS\nA. Counterparty is evaluating, together with certain members of the Gold family and the Company’s CEO, a possible negotiated\ntransaction (a “Possible Transaction”) involving the Company, and has requested access to certain information concerning the Company.\nB. The Company requires, as a condition to providing such information to Counterparty or its Representatives, that any information\nprovided by it or on its behalf to Counterparty or its Representatives shall be kept strictly confidential, and that Counterparty agrees to certain other\nrestrictions and agreements, all as set forth herein.\nNOW, THEREFORE, in consideration of the foregoing recitals and the agreements contained herein, and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:\nARTICLE 1\nDEFINITIONS\nSection 1.1 Certain Defined Terms. For purposes of this Agreement, the following terms shall have the following meanings:\n(a) “Affiliate” of a specified person shall mean any corporation or other person or entity that directly or indirectly, through one or more\nintermediaries, controls, is controlled by, or is under common control with the person specified. The term “control” means the possession, direct or\nindirect, of the power to direct or cause the direction of the management and policies of a person or entity.\n(b) “Representatives” means a Party’s officers, directors, employees, legal counsel, financial advisors and, in the case of Counterparty,\nany consultant to Counterparty who has been pre-approved in writing by the Company.\n(c) “Restriction Period” means the period commencing on the date hereof and ending on the date that is 18 months from the date hereof.\n1\n(d) “Review Material” means any and all information, data, and analyses, whether written or oral, and any and all documents and\nmaterials, furnished by the Company or its Representatives to Counterparty or its Representatives relating to a Possible Transaction or furnished in\nconnection with the consideration of a Possible Transaction, and any and all analyses, compilations, studies, documents, or other material prepared\nby Counterparty or its Representatives containing or based in whole or in part upon such information, data, and analyses, documents, and materials\n(“Counterparty Materials”), but does not include information, data, analyses, documents, or materials that (i) is when furnished or thereafter becomes\navailable to the public other than as a result of a disclosure by Counterparty or its Representatives, or (ii) is already in the possession of or becomes\navailable to Counterparty or its Representatives on a non-confidential basis from a source other than the Company, any of its Affiliates, or any of its\nor its Affiliates’ Representatives, provided that, to the knowledge of Counterparty, such source is in lawful possession of such information, data,\nanalyses, documents or materials and is not and was not bound by an obligation of confidentiality to the Company, any of its Affiliates, or any of its\nor its Affiliates’ Representatives, or (iii) Counterparty can demonstrate has been independently developed by it or its Representatives without a\nviolation of this Agreement.\nARTICLE 2\nCONFIDENTIALITY\nSection 2.1 Confidentiality Obligation. Except as otherwise contemplated in Section 2.2, Counterparty shall, and shall cause its\nRepresentatives to, (a) keep strictly confidential and use its best efforts to protect against and prevent the disclosure of (i) the fact that the Parties\nhave entered into this Agreement and/or that the Company may or has provided information hereunder, (ii) the fact that discussions or negotiations\nare taking place or have taken place, if any take place, concerning a Possible Transaction, (iii) all of the terms, conditions, or other facts with respect\nto any Possible Transaction, including the existence or status thereof, and (iv) all Review Material; and (b) use all Review Material solely for the\npurpose of evaluating a Possible Transaction, and not, directly or indirectly, for any competing business or purpose or in any other way detrimental\nor adverse to the Company or its business or properties; provided, however, that Counterparty may disclose facts, terms, and conditions referred to in\nclause (a) above and any Review Material to those of its Representatives who need to know such information for the purpose of evaluating a\nPossible Transaction if, but only if, prior to being told of such matters or being given access to any Review Material, the applicable Representative is\ninformed of the confidential nature of the Review Material and agrees to be bound by the terms of this Agreement as if it were a party hereto.\nCounterparty agrees that all contacts and communications regarding Review Material or other matters related to this Agreement shall be submitted or\ndirected solely to either the Company’s Chief Financial Officer or its Chief Legal Officer, or such other person, if any, as the Company may\ndesignate in writing from time to time.\nSection 2.2 Compelled Disclosure.\n(a) If Counterparty or its Representative becomes subject to a bona fide requirement (by deposition questions, interrogatories, requests\nfor information or documents, subpoena, civil investigative demand, or similar process) to disclose any Review Material, or any part thereof, or any\nother matter required by Section 2.1 to be kept confidential, it (i) will\n2\npromptly notify the Company of the existence, terms, and circumstances of such requirement(s) so that the Company may seek an appropriate\nprotective order or waive compliance with the provisions of this Agreement, and (ii) will, and will cause its Representatives to, cooperate fully with\nthe Company in seeking a protective order or other assurance that confidential treatment will be accorded to the disclosed Review Material or other\nsuch matter.\n(b) If Counterparty or any of its Representatives that has complied with Section 2.2(a) is compelled, in the reasonable opinion of its legal\ncounsel, to make disclosure in response to a requirement described in Section 2.2(a) or else stand liable for contempt or suffer other censure or\npenalty, it may make such disclosure without liability hereunder notwithstanding the absence of a protective order or waiver of compliance\nhereunder, provided that the Company is informed of this fact as set forth herein as soon as, and to the extent, legally permissible.\nSection 2.3 Ownership and Return of Information. All Review Material other than Counterparty Materials shall be and remain the property of\nthe Company. Nothing in this Agreement shall be construed as granting any rights in or to Review Material other than Counterparty Materials to\nCounterparty or any of its Representatives receiving it. Upon the request of the Company, all Review Material, including all copies thereof and all\nnotes or other writings or documents containing any of its terms or provisions, shall be promptly returned to the Company or destroyed, and if\ndestroyed, such destruction shall be certified in writing to the Company. Notwithstanding the return or destruction of Review Material, Counterparty\nand its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.\nSection 2.4 No Representation or Warranty. The Company makes no representation or warranty, express or implied, as to the accuracy or\ncompleteness of any Review Material. Neither the Company nor its Representatives shall have any liability to Counterparty or its Representatives\nrelating to or arising from Counterparty’s (or its Representatives’) use of or reliance upon Review Material, or for any errors or omissions therefrom.\nFor the avoidance of doubt, the Parties hereby acknowledge and agree that neither this Agreement nor any Review Material shall be deemed to\nconstitute the solicitation of an offer to buy any security or an offer to sell any security.\nSection 2.5 Responsibility for Representatives. Counterparty will be responsible for any breach of this Agreement by its Representatives.\nSection 2.6 No Commitment. Counterparty acknowledges that the Company has made no decision to pursue a Possible Transaction. Unless\nand until this Agreement is expressly amended or superseded in writing signed by both Parties, a Party shall not be under any obligation of any kind\nwhatsoever with respect to a Possible Transaction by virtue of this Agreement or any written or oral statement with respect to a Possible Transaction\nby the Party or its Representatives, except for the matters specifically agreed to by the Company and Counterparty in this Agreement. The Company\nreserves the right, in its sole and absolute discretion, at any time and for any or no reason, to terminate any discussions or negotiations (if any take\nplace) with respect to a Possible Transaction, to determine not to furnish or to stop\n3\nfurnishing Review Material to Counterparty or its Representatives, and to reject any and all proposals (if any are made) with respect to a Possible\nTransaction.\nSection 2.7 Other Agreements. Counterparty represents that neither it nor any of its Representatives have entered into, directly or indirectly,\nany agreements or understandings with any person (other than its Representatives) with respect to a possible transaction involving the Company.\nCounterparty agrees that, without the prior written consent of the Company, neither it nor any of its Representatives will enter into, directly or\nindirectly, any discussions, negotiations, agreements or understandings with any person (other than any of its Representatives and members of the\nGold family and the Company’s CEO and their Representatives), with respect to a possible transaction involving the Company.\nARTICLE 3\nCERTAIN RESTRICTIONS\nSection 3.1 Non-Solicitation of Employees. Until the Restriction Period expires, Counterparty will not, nor will it permit any of its Affiliates\nto, without the Company’s prior written consent, directly or indirectly solicit for employment or hire any employee of the Company with whom you\nhave had contact or who became known to you in connection with your evaluation of a Possible Transaction, or solicit, induce or otherwise\nencourage any such person to discontinue or cancel his or her relationship (contractual or otherwise) with the Company, provided, however, that the\nforegoing provision shall not prevent Counterparty or its Affiliates from employing any such person who contacts Counterparty or such Affiliate on\nhis or her own initiative or as a result of a general advertising and without any direct or indirect solicitation by Counterparty or its Affiliates.\nSection 3.2 Restrictions on Certain Actions.\n(a) From and after the date hereof, until the Restriction Period expires, Counterparty agrees that it will not, nor will it permit any of its\nAffiliates to, without the Company’s prior written approval, singly or as part of a group, directly or indirectly, beneficially or otherwise, own (other\nthan the shares of Company common stock owned of record as of the date hereof by Counterparty or any of its affiliated funds), acquire or propose\nto acquire, by purchase, exchange, conversion or otherwise, any of the securities of the Company or material assets of the Company or any interest in\nany indebtedness of the Company or any rights or options to acquire, or that are otherwise related to or have a value derived from, any such\nsecurities or any such material assets or any such interests.\n(b) Until the Restriction Period expires, unless specifically invited in writing by the Company, Counterparty agrees that it will not, nor\nwill it permit any of its Affiliates to, make any public announcement with respect to (i) any form of merger, tender or exchange offer, consolidation,\nbusiness combination, change of control or other similar transaction with respect to the Company, (ii) any request to amend, waive or terminate the\nprovisions of this Agreement, or (iii) any proposal or other statement inconsistent with the terms of this Agreement.\n4\nSection 3.3 Material Non-Public Information. Counterparty represents that it is aware, and will advise its Representatives who are informed of\nthe matters that are the subject of this Agreement, that the Review Material may contain material non-public information relating to the Company’s\nsecurities, and that there may consequently be restrictions imposed upon, or potential liability for, Counterparty and its Representatives, or their\nrespective affiliates, by the Securities Exchange Act of 1934, as amended, and other similar market abuse and/or insider trading laws and regulations\nand any applicable listing rules related to the purchase or sale of such securities by any person who has received such information, the giving of\nadvice or encouragement to any person to purchase or sell such securities, advising or encouraging any person to give advice or encouragement to\nanother person to purchase or sell such securities, or the communication of such information to any other person who will or is likely to, or may,\npurchase or sell such securities under circumstances that would result in a violation of the foregoing laws or rules.\nARTICLE 4\nMISCELLANEOUS\nSection 4.1 Enforcement. Counterparty acknowledges and agrees that irreparable damage would occur if any of the provisions of this\nAgreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the Company will be entitled to an\ninjunction or injunctions to prevent breaches of this Agreement and to enforce specifically its provisions in any court of the United States or any\nstate having jurisdiction, without the necessity of furnishing a bond of any type, and Counterparty will not oppose the granting of such relief on the\ngrounds that an adequate remedy at law exists, this entitlement being in addition to any other remedy to which the Company may be entitled by law\nor in equity. No failure or delay on the part of the Company in the exercise of any power, right or privilege under this Agreement shall operate as a\nwaiver thereof, nor shall any single or partial exercise of any such power, right or privilege, preclude other or further exercise thereof or of any other\nright, power or privilege.\nSection 4.2 Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof.\nThis Agreement may be amended only by an agreement in writing executed by the Parties.\nSection 4.3 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the remaining\nprovisions shall remain in full force and effect. It is declared to be the intention of the Parties that they would have executed the remaining\nprovisions without including any that may be held unenforceable.\nSection 4.4 Headings. Descriptive headings are for convenience only and will not control or affect the meaning or construction of any\nprovision of this Agreement.\nSection 4.5 Counterparts. This Agreement may be executed in two or more counterparts, each such executed counterpart being an original\ninstrument but together constituting one agreement.\n5\nSection 4.6 Notices. Any notices, consents, requests, instructions, approvals and other communications required or permitted to be given,\nserved or delivered pursuant to this Agreement shall be deemed to have been given, served or delivered (a) on the second business day after being\ndeposited in the United States mail, registered or certified and with proper postage prepaid, (b) on the first business day after being deposited with\nFederal Express or any other recognized overnight courier services with proper fees prepaid or (c) on the business day on which it is sent and\nreceived by fax,\nif to the Company:\n99¢ Only Stores\n4000 East Union Pacific Avenue\nCity of Commerce, CA 90023\nAttention: Russell Wolpert\nFax: 323-307 -9611\nwith a copy to:\nMunger, Tolles & Olson, LLP\n355 South Grand Avenue\nLos Angeles, CA 90071\nAttention: Mary Ann Todd\nFax: (213) 683-4020\nif to Counterparty:\nLeonard Green & Partners, L.P.\n11111 Santa Monica Blvd, Suite 2000\nLos Angeles, CA 90025\nAttention: James D. Halper\nFax: (310) 954-0404\nwith a copy to:\nLatham & Watkins, L.L .P.\n885 Third Avenue, Suite 1000\nNew York, NY 10022\nAttention: Howard A. Sobel\nFax: (212) 751-4864\nor to such other address or fax number as any party may, from time to time, designate in a written notice given in a like manner.\nSection 4.7 Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective\nsuccessors and assigns, but shall not be assignable by either Party without the prior written consent of the other Party.\n6\nSection 4.8 . Choice of Law/Venue. This Agreement will be governed by and construed and enforced in accordance with the internal laws of\nthe State of California, without giving effect to the conflict of laws principles thereof. Each Party hereby submits to personal jurisdiction before any\ncourt of proper subject matter jurisdiction located in Los Angeles, California, to enforce the terms of this Agreement and waives any and all\nobjections to the jurisdiction and proper venue of such courts.\nSection 4.9 . No Third Party Beneficiaries. There are no intended third party beneficiaries to this Agreement.\n7\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective duly authorized officers as of the\ndate first written above.\n99¢ Only Stores\nBy: /S/ RUSSELL WOLPERT\nIts: Chief Legal Officer\nLeonard Green & Partners, L.P.\nBy: LGP Management, Inc.\nBy: /S/ KEITH P. COLLINS\nIts: Associate\n8	EX-7.2 3 dex72.htm CONFIDENTIALITY AGREEMENT\nExhibit 7.2\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement dated as of January 27, 2011 (the “Agreement”), is entered into between 99¢ Only Stores, a California\ncorporation (the Company”), and Leonard Green & Partners, L.P., a Limited Partnership (“Counterparty”). Each of the Company and Counterparty\nare referred to herein as a “Party.”\nRECITALS\nA. Counterparty is evaluating, together with certain members of the Gold family and the Company’s CEO, a possible negotiated\ntransaction (a “Possible Transaction”) involving the Company, and has requested access to certain information concerning the Company.\nB. The Company requires, as a condition to providing such information to Counterparty or its Representatives, that any information\nprovided by it or on its behalf to Counterparty or its Representatives shall be kept strictly confidential, and that Counterparty agrees to certain other\nrestrictions and agreements, all as set forth herein.\nNOW, THEREFORE, in consideration of the foregoing recitals and the agreements contained herein, and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:\nARTICLE 1\nDEFINITIONS\nSection 1.1 Certain Defined Terms. For purposes of this Agreement, the following terms shall have the following meanings:\n(a) “Affiliate” of a specified person shall mean any corporation or other person or entity that directly or indirectly, through one or more\nintermediaries, controls, is controlled by, or is under common control with the person specified. The term “control” means the possession, direct or\nindirect, of the power to direct or cause the direction of the management and policies of a person or entity.\n(b) “Representatives” means a Party’s officers, directors, employees, legal counsel, financial advisors and, in the case of Counterparty,\nany consultant to Counterparty who has been pre-approved in writing by the Company.\n(c) “Restriction Period” means the period commencing on the date hereof and ending on the date that is 18 months from the date hereof.\n1\n(d) “Review Material” means any and all information, data, and analyses, whether written or oral, and any and all documents and\nmaterials, furnished by the Company or its Representatives to Counterparty or its Representatives relating to a Possible Transaction or furnished in\nconnection with the consideration of a Possible Transaction, and any and all analyses, compilations, studies, documents, or other material prepared\nby Counterparty or its Representatives containing or based in whole or in part upon such information, data, and analyses, documents, and materials\n(“Counterparty Materials”), but does not include information, data, analyses, documents, or materials that (i) is when furnished or thereafter becomes\navailable to the public other than as a result of a disclosure by Counterparty or its Representatives, or (ii) is already in the possession of or becomes\navailable to Counterparty or its Representatives on a non-confidential basis from a source other than the Company, any of its Affiliates, or any of its\nor its Affiliates” Representatives, provided that, to the knowledge of Counterparty, such source is in lawful possession of such information, data,\nanalyses, documents or materials and is not and was not bound by an obligation of confidentiality to the Company, any of its Affiliates, or any of its\nor its Affiliates’ Representatives, or (iii) Counterparty can demonstrate has been independently developed by it or its Representatives without a\nviolation of this Agreement.\nARTICLE 2\nCONFIDENTIALITY\nSection 2.1 Confidentiality Obligation. Except as otherwise contemplated in Section 2.2, Counterparty shall, and shall cause its\nRepresentatives to, (a) keep strictly confidential and use its best efforts to protect against and prevent the disclosure of (i) the fact that the Parties\nhave entered into this Agreement and/or that the Company may or has provided information hereunder, (ii) the fact that discussions or negotiations\nare taking place or have taken place, if any take place, concerning a Possible Transaction, (iii) all of the terms, conditions, or other facts with respect\nto any Possible Transaction, including the existence or status thereof, and (iv) all Review Material; and (b) use all Review Material solely for the\npurpose of evaluating a Possible Transaction, and not, directly or indirectly, for any competing business or purpose or in any other way detrimental\nor adverse to the Company or its business or properties; provided, however, that Counterparty may disclose facts, terms, and conditions referred to in\nclause (a) above and any Review Material to those of its Representatives who need to know such information for the purpose of evaluating a\nPossible Transaction if, but only if, prior to being told of such matters or being given access to any Review Material, the applicable Representative is\ninformed of the confidential nature of the Review Material and agrees to be bound by the terms of this Agreement as if it were a party hereto.\nCounterparty agrees that all contacts and communications regarding Review Material or other matters related to this Agreement shall be submitted or\ndirected solely to either the Company’s Chief Financial Officer or its Chief Legal Officer, or such other person, if any, as the Company may\ndesignate in writing from time to time.\nSection 2.2 Compelled Disclosure.\n(a) If Counterparty or its Representative becomes subject to a bona fide requirement (by deposition questions, interrogatories, requests\nfor information or documents, subpoena, civil investigative demand, or similar process) to disclose any Review Material, or any part thereof, or any\nother matter required by Section 2.1 to be kept confidential, it (i) will\npromptly notify the Company of the existence, terms, and circumstances of such requirement(s) so that the Company may seek an appropriate\nprotective order or waive compliance with the provisions of this Agreement, and (ii) will, and will cause its Representatives to, cooperate fully with\nthe Company in seeking a protective order or other assurance that confidential treatment will be accorded to the disclosed Review Material or other\nsuch matter.\n(b) If Counterparty or any of its Representatives that has complied with Section 2.2(a) is compelled, in the reasonable opinion of its legal\ncounsel, to make disclosure in response to a requirement described in Section 2.2(a) or else stand liable for contempt or suffer other censure or\npenalty, it may make such disclosure without liability hereunder notwithstanding the absence of a protective order or waiver of compliance\nhereunder, provided that the Company is informed of this fact as set forth herein as soon as, and to the extent, legally permissible.\nSection 2.3 Ownership and Return of Information. All Review Material other than Counterparty Materials shall be and remain the property of\nthe Company. Nothing in this Agreement shall be construed as granting any rights in or to Review Material other than Counterparty Materials to\nCounterparty or any of its Representatives receiving it. Upon the request of the Company, all Review Material, including all copies thereof and all\nnotes or other writings or documents containing any of its terms or provisions, shall be promptly returned to the Company or destroyed, and if\ndestroyed, such destruction shall be certified in writing to the Company. Notwithstanding the return or destruction of Review Material, Counterparty\nand its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.\nSection 2.4 No Representation or Warranty. The Company makes no representation or warranty, express or implied, as to the accuracy or\ncompleteness of any Review Material. Neither the Company nor its Representatives shall have any liability to Counterparty or its Representatives\nrelating to or arising from Counterparty’s (or its Representatives’) use of or reliance upon Review Material, or for any errors or omissions therefrom.\nFor the avoidance of doubt, the Parties hereby acknowledge and agree that neither this Agreement nor any Review Material shall be deemed to\nconstitute the solicitation of an offer to buy any security or an offer to sell any security.\nSection 2.5 Responsibility for Representatives. Counterparty will be responsible for any breach of this Agreement by its Representatives.\nSection 2.6 No Commitment. Counterparty acknowledges that the Company has made no decision to pursue a Possible Transaction. Unless\nand until this Agreement is expressly amended or superseded in writing signed by both Parties, a Party shall not be under any obligation of any kind\nwhatsoever with respect to a Possible Transaction by virtue of this Agreement or any written or oral statement with respect to a Possible Transaction\nby the Party or its Representatives, except for the matters specifically agreed to by the Company and Counterparty in this Agreement. The Company\nreserves the right, in its sole and absolute discretion, at any time and for any or no reason, to terminate any discussions or negotiations (if any take\nplace) with respect to a Possible Transaction, to determine not to furnish or to stop\n3\nfurnishing Review Material to Counterparty or its Representatives, and to reject any and all proposals (if any are made) with respect to a Possible\nTransaction.\nSection 2.7 Other Agreements. Counterparty represents that neither it nor any of its Representatives have entered into, directly or indirectly,\nany agreements or understandings with any person (other than its Representatives) with respect to a possible transaction involving the Company.\nCounterparty agrees that, without the prior written consent of the Company, neither it nor any of its Representatives will enter into, directly or\nindirectly, any discussions, negotiations, agreements or understandings with any person (other than any of its Representatives and members of the\nGold family and the Company’s CEO and their Representatives), with respect to a possible transaction involving the Company.\nARTICLE 3\nCERTAIN RESTRICTIONS\nSection 3.1 Non-Solicitation of Employees. Until the Restriction Period expires, Counterparty will not, nor will it permit any of its Affiliates\nto, without the Company’s prior written consent, directly or indirectly solicit for employment or hire any employee of the Company with whom you\nhave had contact or who became known to you in connection with your evaluation of a Possible Transaction, or solicit, induce or otherwise\nencourage any such person to discontinue or cancel his or her relationship (contractual or otherwise) with the Company, provided, however, that the\nforegoing provision shall not prevent Counterparty or its Affiliates from employing any such person who contacts Counterparty or such Affiliate on\nhis or her own initiative or as a result of a general advertising and without any direct or indirect solicitation by Counterparty or its Affiliates.\nSection 3.2 Restrictions on Certain Actions.\n(a) From and after the date hereof, until the Restriction Period expires, Counterparty agrees that it will not, nor will it permit any of its\nAffiliates to, without the Company’s prior written approval, singly or as part of a group, directly or indirectly, beneficially or otherwise, own (other\nthan the shares of Company common stock owned of record as of the date hereof by Counterparty or any of its affiliated funds), acquire or propose\nto acquire, by purchase, exchange, conversion or otherwise, any of the securities of the Company or material assets of the Company or any interest in\nany indebtedness of the Company or any rights or options to acquire, or that are otherwise related to or have a value derived from, any such\nsecurities or any such material assets or any such interests.\n(b) Until the Restriction Period expires, unless specifically invited in writing by the Company, Counterparty agrees that it will not, nor\nwill it permit any of its Affiliates to, make any public announcement with respect to (i) any form of merger, tender or exchange offer, consolidation,\nbusiness combination, change of control or other similar transaction with respect to the Company, (ii) any request to amend, waive or terminate the\nprovisions of this Agreement, or (iii) any proposal or other statement inconsistent with the terms of this Agreement.\n4\nSection 3.3 Material Non-Public Information. Counterparty represents that it is aware, and will advise its Representatives who are informed of\nthe matters that are the subject of this Agreement, that the Review Material may contain material non-public information relating to the Company’s\nsecurities, and that there may consequently be restrictions imposed upon, or potential liability for, Counterparty and its Representatives, or their\nrespective affiliates, by the Securities Exchange Act of 1934, as amended, and other similar market abuse and/or insider trading laws and regulations\nand any applicable listing rules related to the purchase or sale of such securities by any person who has received such information, the giving of\nadvice or encouragement to any person to purchase or sell such securities, advising or encouraging any person to give advice or encouragement to\nanother person to purchase or sell such securities, or the communication of such information to any other person who will or is likely to, or may,\npurchase or sell such securities under circumstances that would result in a violation of the foregoing laws or rules.\nARTICLE 4\nMISCELLANEOUS\nSection 4.1 Enforcement. Counterparty acknowledges and agrees that irreparable damage would occur if any of the provisions of this\nAgreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the Company will be entitled to an\ninjunction or injunctions to prevent breaches of this Agreement and to enforce specifically its provisions in any court of the United States or any\nstate having jurisdiction, without the necessity of furnishing a bond of any type, and Counterparty will not oppose the granting of such relief on the\ngrounds that an adequate remedy at law exists, this entitlement being in addition to any other remedy to which the Company may be entitled by law\nor in equity. No failure or delay on the part of the Company in the exercise of any power, right or privilege under this Agreement shall operate as a\nwaiver thereof, nor shall any single or partial exercise of any such power, right or privilege, preclude other or further exercise thereof or of any other\nright, power or privilege.\nSection 4.2 Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof.\nThis Agreement may be amended only by an agreement in writing executed by the Parties.\nSection 4.3 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the remaining\nprovisions shall remain in full force and effect. It is declared to be the intention of the Parties that they would have executed the remaining\nprovisions without including any that may be held unenforceable.\nSection 4.4 Headings. Descriptive headings are for convenience only and will not control or affect the meaning or construction of any\nprovision of this Agreement.\nSection 4.5 Counterparts. This Agreement may be executed in two or more counterparts, each such executed counterpart being an original\ninstrument but together constituting one agreement.\nSection 4.6 Notices. Any notices, consents, requests, instructions, approvals and other communications required or permitted to be given,\nserved or delivered pursuant to this Agreement shall be deemed to have been given, served or delivered (a) on the second business day after being\ndeposited in the United States mail, registered or certified and with proper postage prepaid, (b) on the first business day after being deposited with\nFederal Express or any other recognized overnight courier services with proper fees prepaid or (c) on the business day on which it is sent and\nreceived by fax,\nif to the Company:\n99¢ Only Stores\n4000 East Union Pacific Avenue\nCity of Commerce, CA 90023\nAttention: Russell Wolpert\nFax: 323-307-9611\nwith a copy to:\nMunger, Tolles & Olson, LLP\n355 South Grand Avenue\nLos Angeles, CA 90071\nAttention: Mary Ann Todd\nFax: (213) 683-4020\nif to Counterparty:\nLeonard Green & Partners, L.P.\n11111 Santa Monica Blvd, Suite 2000\nLos Angeles, CA 90025\nAttention: James D. Halper\nFax: (310) 954-0404\nwith a copy to:\nLatham & Watkins, L.L.P.\n885 Third Avenue, Suite 1000\nNew York, NY 10022\nAttention: Howard A. Sobel\nFax: (212) 751-4864\nor to such other address or fax number as any party may, from time to time, designate in a written notice given in a like manner.\nSection 4.7 Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective\nsuccessors and assigns, but shall not be assignable by either Party without the prior written consent of the other Party.\n6\nSection 4.8. Choice of Law/Venue. This Agreement will be governed by and construed and enforced in accordance with the internal laws of\nthe State of California, without giving effect to the conflict of laws principles thereof. Each Party hereby submits to personal jurisdiction before any\ncourt of proper subject matter jurisdiction located in Los Angeles, California, to enforce the terms of this Agreement and waives any and all\nobjections to the jurisdiction and proper venue of such courts.\nSection 4.9. No Third Party Beneficiaries. There are no intended third party beneficiaries to this Agreement.\n7\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective duly authorized officers as of the date first written above.\n99¢ Only Stores\nBy: /S/ RUSSELL WOLPERT\nIts: Chief Legal Officer\nLeonard Green & Partners, L.P.\nBy: LGP Management, Inc.\nBy: /S/ KEITH P. COLLINS\nIts: Associate	EX-7.2 3 dex72.htm CONFIDENTIALITY AGREEMENT\nExhibit 7.2\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement dated as of January 27, 2011 (the "Agreement"), is entered into between 99+ Only Stores, a California\ncorporation (the Company"), and Leonard Green & Partners, L.P., a Limited Partnership ("Counterparty"). Each of the Company and Counterparty\nare referred to herein as a "Party."\nRECITALS\nA. Counterparty is evaluating, together with certain members of the Gold family and the Company's CEO, a possible negotiated\ntransaction (a "Possible Transaction") involving the Company, and has requested access to certain information concerning the Company.\nB. The Company requires, as a condition to providing such information to Counterparty or its Representatives, that any information\nprovided by it or on its behalf to Counterparty or its Representatives shall be kept strictly confidential, and that Counterparty agrees to certain other\nrestrictions and agreements, all as set forth herein.\nNOW, THEREFORE, in consideration of the foregoing recitals and the agreements contained herein, and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:\nARTICLE 1\nDEFINITIONS\nSection 1.1 Certain Defined Terms. For purposes of this Agreement, the following terms shall have the following meanings:\n(a) "Affiliate" of a specified person shall mean any corporation or other person or entity that directly or indirectly, through one or more\nintermediaries, controls, is controlled by, or is under common control with the person specified. The term "control" means the possession, direct or\nindirect, of the power to direct or cause the direction of the management and policies of a person or entity.\n(b) "Representatives" means a Party's officers, directors, employees, legal counsel, financial advisors and, in the case of Counterparty,\nany consultant to Counterparty who has been pre-approved in writing by the Company.\n(c) "Restriction Period" means the period commencing on the date hereof and ending on the date that is 18 months from the date hereof.\n1\n(d)\n"Review Material" means any and all information, data, and analyses, whether written or oral, and any and all documents\nand\nmaterials, furnished by the Company or its Representatives to Counterparty or its Representatives relating to a Possible Transaction or furnished\nin\nconnection with the consideration of a Possible Transaction, and any and all analyses, compilations, studies, documents, or other material prepared\nby Counterparty or its Representatives containing or based in whole or in part upon such information, data, and analyses, documents, and materials\n("Counterparty Materials"), but does not include information, data, analyses, documents, or materials that (i) is when furnished or thereafter becomes\navailable to the public other than as a result of a disclosure by Counterparty or its Representatives, or (ii) is already in the possession of or becomes\navailable to Counterparty or its Representatives on a non-confidential basis from a source other than the Company, any of its Affiliates, or any of its\nor its Affiliates' Representatives, provided that, to the knowledge of Counterparty, such source is in lawful possession of such information, data,\nanalyses, documents or materials and is not and was not bound by an obligation of confidentiality to the Company, any of its Affiliates, or any of its\nor its Affiliates' Representatives, or (iii) Counterparty can demonstrate has been independently developed by it or its Representatives without a\nviolation of this Agreement.\nARTICLE 2\nCONFIDENTIALITY\nSection 2.1 Confidentiality. Obligation. Except as otherwise contemplated in Section 2.2, Counterparty shall, and shall cause its\nRepresentatives to, (a) keep strictly confidential and use its best efforts to protect against and prevent the disclosure of (i) the fact that the Parties\nhave entered into this Agreement and/or that the Company may or has provided information hereunder, (ii) the fact that discussions or negotiations\nare taking place or have taken place, if any take place, concerning a Possible Transaction, (iii) all of the terms, conditions, or other facts with respect\nto any Possible Transaction, including the existence or status thereof, and (iv) all Review Material; and (b) use all Review Material solely for\nthe\npurpose of evaluating a Possible Transaction, and not, directly or indirectly, for any competing business or purpose or in any other way detrimental\nor adverse to the Company or its business or properties; provided, however, that Counterparty may disclose facts, terms, and conditions referred to in\nclause (a) above and any Review Material to those of its Representatives who need to know such information for the purpose of evaluating a\nPossible Transaction if, but only if, prior to being told of such matters or being given access to any Review Material, the applicable Representative\nis\ninformed of the confidential nature of the Review Material and agrees to be bound by the terms of this Agreement as if it were a party hereto.\nCounterparty agrees that all contacts and communications regarding Review Material or other matters related to this Agreement shall be submitted or\ndirected solely to either the Company's Chief Financial Officer or its Chief Legal Officer, or such other person, if any, as the Company may\ndesignate in writing from time to time.\nSection 2.2 Compelled Disclosure.\n(a) If Counterparty or its Representative becomes subject to a bona fide requirement (by deposition questions, interrogatories, requests\nfor information or documents, subpoena, civil investigative demand, or similar process) to disclose any Review Material, or any part thereof, or any\nother matter required by Section 2.1 to be kept confidential, it (i) will\n2\npromptly notify the Company of the existence, terms, and circumstances of such requirement(s) SO that the Company may seek an appropriate\nprotective order or waive compliance with the provisions of this Agreement, and (ii) will, and will cause its Representatives to, cooperate fully with\nthe Company in seeking a protective order or other assurance that confidential treatment will be accorded to the disclosed Review Material or other\nsuch matter.\n(b) If Counterparty or any of its Representatives that has complied with Section 2.2(a) is compelled, in the reasonable opinion\nof\nits\nlegal\ncounsel, to make disclosure in response to a requirement described in Section 2.2(a) or else stand liable for contempt or suffer other censure or\npenalty, it may make such disclosure without liability hereunder notwithstanding the absence of a protective order or waiver of compliance\nhereunder, provided that the Company is informed of this fact as set forth herein as soon as, and to the extent, legally permissible.\nSection 2.3 Ownership and Return of Information. All Review Material other than Counterparty Materials shall be and remain the property of\nthe\nCompany. Nothing in this Agreement shall be construed as granting any rights in or to Review Material other than Counterparty Materials to\nCounterparty or any of its Representatives receiving it. Upon the request of the Company, all Review Material, including all copies thereof and all\nnotes or other writings or documents containing any of its terms or provisions, shall be promptly returned to the Company or destroyed, and if\ndestroyed, such destruction shall be certified in writing to the Company. Notwithstanding the return or destruction of Review Material, Counterparty\nand its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.\nSection 2.4 No Representation or Warranty.. The Company makes no representation or warranty, express or implied, as to the accuracy or\ncompleteness of any Review Material. Neither the Company nor its Representatives shall have any liability to Counterparty or its Representatives\nrelating to or arising from Counterparty's (or its Representatives') use of or reliance upon Review Material, or for any errors or omissions therefrom.\nFor the avoidance of doubt, the Parties hereby acknowledge and agree that neither this Agreement nor any Review Material shall be deemed to\nconstitute the solicitation of an offer to buy any security or an offer to sell any security.\nSection 2.5 Responsibility. for Representatives. Counterparty will be responsible for any breach of this Agreement by its Representatives.\nSection 2.6 No Commitment. Counterparty acknowledges that the Company has made no decision to pursue a Possible Transaction. Unless\nand until this Agreement is expressly amended or superseded in writing signed by both Parties, a Party shall not be under any obligation of any kind\nwhatsoever with respect to a Possible Transaction by virtue of this Agreement or any written or oral statement with respect to a Possible Transaction\nby the Party or its Representatives, except for the matters specifically agreed to by the Company and Counterparty in this Agreement. The Company\nreserves the right, in its sole and absolute discretion, at any time and for any or no reason, to terminate any discussions or negotiations (if any take\nplace) with respect to a Possible Transaction, to determine not to furnish or to stop\n3\nfurnishing Review Material to Counterparty or its Representatives, and to reject any and all proposals (if any are made) with respect to a Possible\nTransaction.\nSection 2.7 Other Agreements. Counterparty represents that neither it nor any of its Representatives have entered into, directly or indirectly,\nany agreements or understandings with any person (other than its Representatives) with respect to a possible transaction involving the Company.\nCounterparty agrees that, without the prior written consent of the Company, neither it nor any of its Representatives will\nenter\ninto,\ndirectly\nor\nindirectly, any discussions, negotiations, agreements or understandings with any person (other than any of its Representatives and members of the\nGold family and the Company's CEO and their Representatives), with respect to a possible transaction involving the Company.\nARTICLE 3\nCERTAIN RESTRICTIONS\nSection 3.1 Non-Solicitation of Employees. Until the Restriction Period expires, Counterparty will not, nor will it permit any of its Affiliates\nto, without the Company's prior written consent, directly or indirectly solicit for employment or hire any employee of the Company with whom you\nhave had contact or who became known to you in connection with your evaluation of a Possible Transaction, or solicit, induce or otherwise\nencourage any such person to discontinue or cancel his or her relationship (contractual or otherwise) with the Company, provided, however, that the\nforegoing provision shall not prevent Counterparty or its Affiliates from employing any such person who contacts Counterparty or such Affiliate on\nhis or her own initiative or as a result of a general advertising and without any direct or indirect solicitation by Counterparty or its Affiliates.\nSection 3.2 Restrictions on Certain Actions.\n(a) From and after the date hereof, until the Restriction Period expires, Counterparty agrees that it will not, nor will it permit any of its\nAffiliates to, without the Company's prior written approval, singly or as part of a group, directly or indirectly, beneficially or otherwise, own (other\nthan the shares of Company common stock owned of record as of the date hereof by Counterparty or any of its affiliated funds), acquire or propose\nto acquire, by purchase, exchange, conversion or otherwise, any of the securities of the Company or material assets of the Company or any interest in\nany indebtedness of the Company or any rights or options to acquire, or that are otherwise related to or have a value derived from, any such\nsecurities or any such material assets or any such interests.\n(b) Until the Restriction Period expires, unless specifically invited in writing by the Company, Counterparty agrees that it will not, nor\nwill it permit any of its Affiliates to, make any public announcement with respect to (i) any form of merger, tender or exchange offer, consolidation,\nbusiness combination, change of control or other similar transaction with respect to the Company, (ii) any request to amend, waive or terminate the\nprovisions of this Agreement, or (iii) any proposal or other statement inconsistent with the terms of this Agreement.\n4\nSection 3.3 Material Non-Public Information. Counterparty represents that it is aware, and will advise its Representatives who are informed of\nthe matters that are the subject of this Agreement, that the Review Material may contain material non-public information relating to the Company's\nsecurities, and that there may consequently be restrictions imposed upon, or potential liability for, Counterparty and its Representatives, or their\nrespective affiliates, by the Securities Exchange Act of 1934, as amended, and other similar market abuse and/or insider trading laws and regulations\nand any applicable listing rules related to the purchase or sale of such securities by any person who has received such information, the giving of\nadvice or encouragement to any person to purchase or sell such securities, advising or encouraging any person to give advice or encouragement to\nanother person to purchase or sell such securities, or the communication of such information to any other person who will or is likely to, or may,\npurchase or sell such securities under circumstances that would result in a violation of the foregoing laws or rules.\nARTICLE 4\nMISCELLANEOUS\nSection 4.1 Enforcement. Counterparty acknowledges and agrees that irreparable damage would occur if any of the provisions of this\nAgreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the Company will be entitled to an\ninjunction or injunctions to prevent breaches of this Agreement and to enforce specifically its provisions in any court of the United States or any\nstate having jurisdiction, without the necessity of furnishing a bond of any type, and Counterparty will not oppose the granting of such relief on the\ngrounds that an adequate remedy at law exists, this entitlement being in addition to any other remedy to which the Company may be entitled by law\nor in equity. No failure or delay on the part of the Company in the exercise of any power, right or privilege under this Agreement shall operate as a\nwaiver thereof, nor shall any single or partial exercise of any such power, right or privilege, preclude other or further exercise thereof or of any other\nright, power or privilege.\nSection 4.2 Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof.\nThis Agreement may be amended only by an agreement in writing executed by the Parties.\nSection 4.3 Severability.. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the remaining\nprovisions shall remain in full force and effect. It is declared to be the intention of the Parties that they would have executed the remaining\nprovisions without including any that may be held unenforceable.\nSection 4.4 Headings. Descriptive headings are for convenience only and will not control or affect the meaning or construction of any\nprovision of this Agreement.\nSection 4.5 Counterparts. This Agreement may be executed in two or more counterparts, each such executed counterpart being an original\ninstrument but together constituting one agreement.\n5\nSection 4.6 Notices. Any notices, consents, requests, instructions, approvals and other communications required or permitted to be given,\nserved or delivered pursuant to this Agreement shall be deemed to have been given, served or delivered (a) on the second business day after being\ndeposited in the United States mail, registered or certified and with proper postage prepaid, (b) on the first business day after being deposited with\nFederal Express or any other recognized overnight courier services with proper fees prepaid or (c) on the business day on which it is sent and\nreceived by fax,\nif to the Company:\n99 Only Stores\n4000 East Union Pacific Avenue\nCity of Commerce, CA 90023\nAttention: Russell Wolpert\nFax: 323-307-9611\nwith a copy to:\nMunger, Tolles & Olson, LLP\n355 South Grand Avenue\nLos Angeles, CA 90071\nAttention: Mary Ann Todd\nFax: (213) 683-4020\nif to Counterparty:\nLeonard Green & Partners, L.P.\n11111 Santa Monica Blvd, Suite 2000\nLos Angeles, CA 90025\nAttention: James D. Halper\nFax: (310) 954-0404\nwith a copy to:\nLatham & Watkins, L.L.P.\n885 Third Avenue, Suite 1000\nNew York, NY 10022\nAttention: Howard A. Sobel\nFax: (212) 751-4864\nor to such other address or fax number as any party may, from time to time, designate in a written notice given in a like manner.\nSection 4.7 Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective\nsuccessors and assigns, but shall not be assignable by either Party without the prior written consent of the other Party.\n6\nSection 4.8. Choice of Law/Venue. This Agreement will be governed by and construed and enforced in accordance with the internal laws of\nthe State of California, without giving effect to the conflict of laws principles thereof. Each Party hereby submits to personal jurisdiction before any\ncourt of proper subject matter jurisdiction located in Los Angeles, California, to enforce the terms of this Agreement and waives any and all\nobjections to the jurisdiction and proper venue of such courts.\nSection 4.9. No Third Party Beneficiaries. There are no intended third party beneficiaries to this Agreement.\n7\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective duly authorized officers as of the\ndate first written above.\n99+ Only Stores\nBy: /S/ RUSSELL WOLPERT\nIts: Chief Legal Officer\nLeonard Green & Partners, L.P.\nBy: LGP Management, Inc.\nBy: /S/ KEITH P. COLLINS\nIts: Associate\n8	EX-7.2 3 dex72.htm CONFIDENTIALITY AGREEMENT\nExhibit 7.2\nCONFIDENTIALITY AGREEMENT\nThis Confidentiality Agreement dated as of January 27, 2011 (the “Agreement”), is entered into between 99¢ Only Stores, a California\ncorporation (the Company”), and Leonard Green & Partners, L.P., a Limited Partnership (“Counterparty”). Each of the Company and Counterparty\nare referred to herein as a “Party.”\nRECITALS\nA. Counterparty is evaluating, together with certain members of the Gold family and the Company’s CEO, a possible negotiated\ntransaction (a “Possible Transaction”) involving the Company, and has requested access to certain information concerning the Company.\nB. The Company requires, as a condition to providing such information to Counterparty or its Representatives, that any information\nprovided by it or on its behalf to Counterparty or its Representatives shall be kept strictly confidential, and that Counterparty agrees to certain other\nrestrictions and agreements, all as set forth herein.\nNOW, THEREFORE, in consideration of the foregoing recitals and the agreements contained herein, and for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:\nARTICLE 1\nDEFINITIONS\nSection 1.1 Certain Defined Terms. For purposes of this Agreement, the following terms shall have the following meanings:\n(a) “Affiliate” of a specified person shall mean any corporation or other person or entity that directly or indirectly, through one or more\nintermediaries, controls, is controlled by, or is under common control with the person specified. The term “control” means the possession, direct or\nindirect, of the power to direct or cause the direction of the management and policies of a person or entity.\n(b) “Representatives” means a Party’s officers, directors, employees, legal counsel, financial advisors and, in the case of Counterparty,\nany consultant to Counterparty who has been pre-approved in writing by the Company.\n(c) “Restriction Period” means the period commencing on the date hereof and ending on the date that is 18 months from the date hereof.\n1\n(d) “Review Material” means any and all information, data, and analyses, whether written or oral, and any and all documents and\nmaterials, furnished by the Company or its Representatives to Counterparty or its Representatives relating to a Possible Transaction or furnished in\nconnection with the consideration of a Possible Transaction, and any and all analyses, compilations, studies, documents, or other material prepared\nby Counterparty or its Representatives containing or based in whole or in part upon such information, data, and analyses, documents, and materials\n(“Counterparty Materials”), but does not include information, data, analyses, documents, or materials that (i) is when furnished or thereafter becomes\navailable to the public other than as a result of a disclosure by Counterparty or its Representatives, or (ii) is already in the possession of or becomes\navailable to Counterparty or its Representatives on a non-confidential basis from a source other than the Company, any of its Affiliates, or any of its\nor its Affiliates’ Representatives, provided that, to the knowledge of Counterparty, such source is in lawful possession of such information, data,\nanalyses, documents or materials and is not and was not bound by an obligation of confidentiality to the Company, any of its Affiliates, or any of its\nor its Affiliates’ Representatives, or (iii) Counterparty can demonstrate has been independently developed by it or its Representatives without a\nviolation of this Agreement.\nARTICLE 2\nCONFIDENTIALITY\nSection 2.1 Confidentiality Obligation. Except as otherwise contemplated in Section 2.2, Counterparty shall, and shall cause its\nRepresentatives to, (a) keep strictly confidential and use its best efforts to protect against and prevent the disclosure of (i) the fact that the Parties\nhave entered into this Agreement and/or that the Company may or has provided information hereunder, (ii) the fact that discussions or negotiations\nare taking place or have taken place, if any take place, concerning a Possible Transaction, (iii) all of the terms, conditions, or other facts with respect\nto any Possible Transaction, including the existence or status thereof, and (iv) all Review Material; and (b) use all Review Material solely for the\npurpose of evaluating a Possible Transaction, and not, directly or indirectly, for any competing business or purpose or in any other way detrimental\nor adverse to the Company or its business or properties; provided, however, that Counterparty may disclose facts, terms, and conditions referred to in\nclause (a) above and any Review Material to those of its Representatives who need to know such information for the purpose of evaluating a\nPossible Transaction if, but only if, prior to being told of such matters or being given access to any Review Material, the applicable Representative is\ninformed of the confidential nature of the Review Material and agrees to be bound by the terms of this Agreement as if it were a party hereto.\nCounterparty agrees that all contacts and communications regarding Review Material or other matters related to this Agreement shall be submitted or\ndirected solely to either the Company’s Chief Financial Officer or its Chief Legal Officer, or such other person, if any, as the Company may\ndesignate in writing from time to time.\nSection 2.2 Compelled Disclosure.\n(a) If Counterparty or its Representative becomes subject to a bona fide requirement (by deposition questions, interrogatories, requests\nfor information or documents, subpoena, civil investigative demand, or similar process) to disclose any Review Material, or any part thereof, or any\nother matter required by Section 2.1 to be kept confidential, it (i) will\n2\npromptly notify the Company of the existence, terms, and circumstances of such requirement(s) so that the Company may seek an appropriate\nprotective order or waive compliance with the provisions of this Agreement, and (ii) will, and will cause its Representatives to, cooperate fully with\nthe Company in seeking a protective order or other assurance that confidential treatment will be accorded to the disclosed Review Material or other\nsuch matter.\n(b) If Counterparty or any of its Representatives that has complied with Section 2.2(a) is compelled, in the reasonable opinion of its legal\ncounsel, to make disclosure in response to a requirement described in Section 2.2(a) or else stand liable for contempt or suffer other censure or\npenalty, it may make such disclosure without liability hereunder notwithstanding the absence of a protective order or waiver of compliance\nhereunder, provided that the Company is informed of this fact as set forth herein as soon as, and to the extent, legally permissible.\nSection 2.3 Ownership and Return of Information. All Review Material other than Counterparty Materials shall be and remain the property of\nthe Company. Nothing in this Agreement shall be construed as granting any rights in or to Review Material other than Counterparty Materials to\nCounterparty or any of its Representatives receiving it. Upon the request of the Company, all Review Material, including all copies thereof and all\nnotes or other writings or documents containing any of its terms or provisions, shall be promptly returned to the Company or destroyed, and if\ndestroyed, such destruction shall be certified in writing to the Company. Notwithstanding the return or destruction of Review Material, Counterparty\nand its Representatives will continue to be bound by their obligations of confidentiality and other obligations hereunder.\nSection 2.4 No Representation or Warranty. The Company makes no representation or warranty, express or implied, as to the accuracy or\ncompleteness of any Review Material. Neither the Company nor its Representatives shall have any liability to Counterparty or its Representatives\nrelating to or arising from Counterparty’s (or its Representatives’) use of or reliance upon Review Material, or for any errors or omissions therefrom.\nFor the avoidance of doubt, the Parties hereby acknowledge and agree that neither this Agreement nor any Review Material shall be deemed to\nconstitute the solicitation of an offer to buy any security or an offer to sell any security.\nSection 2.5 Responsibility for Representatives. Counterparty will be responsible for any breach of this Agreement by its Representatives.\nSection 2.6 No Commitment. Counterparty acknowledges that the Company has made no decision to pursue a Possible Transaction. Unless\nand until this Agreement is expressly amended or superseded in writing signed by both Parties, a Party shall not be under any obligation of any kind\nwhatsoever with respect to a Possible Transaction by virtue of this Agreement or any written or oral statement with respect to a Possible Transaction\nby the Party or its Representatives, except for the matters specifically agreed to by the Company and Counterparty in this Agreement. The Company\nreserves the right, in its sole and absolute discretion, at any time and for any or no reason, to terminate any discussions or negotiations (if any take\nplace) with respect to a Possible Transaction, to determine not to furnish or to stop\n3\nfurnishing Review Material to Counterparty or its Representatives, and to reject any and all proposals (if any are made) with respect to a Possible\nTransaction.\nSection 2.7 Other Agreements. Counterparty represents that neither it nor any of its Representatives have entered into, directly or indirectly,\nany agreements or understandings with any person (other than its Representatives) with respect to a possible transaction involving the Company.\nCounterparty agrees that, without the prior written consent of the Company, neither it nor any of its Representatives will enter into, directly or\nindirectly, any discussions, negotiations, agreements or understandings with any person (other than any of its Representatives and members of the\nGold family and the Company’s CEO and their Representatives), with respect to a possible transaction involving the Company.\nARTICLE 3\nCERTAIN RESTRICTIONS\nSection 3.1 Non-Solicitation of Employees. Until the Restriction Period expires, Counterparty will not, nor will it permit any of its Affiliates\nto, without the Company’s prior written consent, directly or indirectly solicit for employment or hire any employee of the Company with whom you\nhave had contact or who became known to you in connection with your evaluation of a Possible Transaction, or solicit, induce or otherwise\nencourage any such person to discontinue or cancel his or her relationship (contractual or otherwise) with the Company, provided, however, that the\nforegoing provision shall not prevent Counterparty or its Affiliates from employing any such person who contacts Counterparty or such Affiliate on\nhis or her own initiative or as a result of a general advertising and without any direct or indirect solicitation by Counterparty or its Affiliates.\nSection 3.2 Restrictions on Certain Actions.\n(a) From and after the date hereof, until the Restriction Period expires, Counterparty agrees that it will not, nor will it permit any of its\nAffiliates to, without the Company’s prior written approval, singly or as part of a group, directly or indirectly, beneficially or otherwise, own (other\nthan the shares of Company common stock owned of record as of the date hereof by Counterparty or any of its affiliated funds), acquire or propose\nto acquire, by purchase, exchange, conversion or otherwise, any of the securities of the Company or material assets of the Company or any interest in\nany indebtedness of the Company or any rights or options to acquire, or that are otherwise related to or have a value derived from, any such\nsecurities or any such material assets or any such interests.\n(b) Until the Restriction Period expires, unless specifically invited in writing by the Company, Counterparty agrees that it will not, nor\nwill it permit any of its Affiliates to, make any public announcement with respect to (i) any form of merger, tender or exchange offer, consolidation,\nbusiness combination, change of control or other similar transaction with respect to the Company, (ii) any request to amend, waive or terminate the\nprovisions of this Agreement, or (iii) any proposal or other statement inconsistent with the terms of this Agreement.\n4\nSection 3.3 Material Non-Public Information. Counterparty represents that it is aware, and will advise its Representatives who are informed of\nthe matters that are the subject of this Agreement, that the Review Material may contain material non-public information relating to the Company’s\nsecurities, and that there may consequently be restrictions imposed upon, or potential liability for, Counterparty and its Representatives, or their\nrespective affiliates, by the Securities Exchange Act of 1934, as amended, and other similar market abuse and/or insider trading laws and regulations\nand any applicable listing rules related to the purchase or sale of such securities by any person who has received such information, the giving of\nadvice or encouragement to any person to purchase or sell such securities, advising or encouraging any person to give advice or encouragement to\nanother person to purchase or sell such securities, or the communication of such information to any other person who will or is likely to, or may,\npurchase or sell such securities under circumstances that would result in a violation of the foregoing laws or rules.\nARTICLE 4\nMISCELLANEOUS\nSection 4.1 Enforcement. Counterparty acknowledges and agrees that irreparable damage would occur if any of the provisions of this\nAgreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the Company will be entitled to an\ninjunction or injunctions to prevent breaches of this Agreement and to enforce specifically its provisions in any court of the United States or any\nstate having jurisdiction, without the necessity of furnishing a bond of any type, and Counterparty will not oppose the granting of such relief on the\ngrounds that an adequate remedy at law exists, this entitlement being in addition to any other remedy to which the Company may be entitled by law\nor in equity. No failure or delay on the part of the Company in the exercise of any power, right or privilege under this Agreement shall operate as a\nwaiver thereof, nor shall any single or partial exercise of any such power, right or privilege, preclude other or further exercise thereof or of any other\nright, power or privilege.\nSection 4.2 Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof.\nThis Agreement may be amended only by an agreement in writing executed by the Parties.\nSection 4.3 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, the remaining\nprovisions shall remain in full force and effect. It is declared to be the intention of the Parties that they would have executed the remaining\nprovisions without including any that may be held unenforceable.\nSection 4.4 Headings. Descriptive headings are for convenience only and will not control or affect the meaning or construction of any\nprovision of this Agreement.\nSection 4.5 Counterparts. This Agreement may be executed in two or more counterparts, each such executed counterpart being an original\ninstrument but together constituting one agreement.\n5\nSection 4.6 Notices. Any notices, consents, requests, instructions, approvals and other communications required or permitted to be given,\nserved or delivered pursuant to this Agreement shall be deemed to have been given, served or delivered (a) on the second business day after being\ndeposited in the United States mail, registered or certified and with proper postage prepaid, (b) on the first business day after being deposited with\nFederal Express or any other recognized overnight courier services with proper fees prepaid or (c) on the business day on which it is sent and\nreceived by fax,\nif to the Company:\n99¢ Only Stores\n4000 East Union Pacific Avenue\nCity of Commerce, CA 90023\nAttention: Russell Wolpert\nFax: 323-307 -9611\nwith a copy to:\nMunger, Tolles & Olson, LLP\n355 South Grand Avenue\nLos Angeles, CA 90071\nAttention: Mary Ann Todd\nFax: (213) 683-4020\nif to Counterparty:\nLeonard Green & Partners, L.P.\n11111 Santa Monica Blvd, Suite 2000\nLos Angeles, CA 90025\nAttention: James D. Halper\nFax: (310) 954-0404\nwith a copy to:\nLatham & Watkins, L.L .P.\n885 Third Avenue, Suite 1000\nNew York, NY 10022\nAttention: Howard A. Sobel\nFax: (212) 751-4864\nor to such other address or fax number as any party may, from time to time, designate in a written notice given in a like manner.\nSection 4.7 Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective\nsuccessors and assigns, but shall not be assignable by either Party without the prior written consent of the other Party.\n6\nSection 4.8 . Choice of Law/Venue. This Agreement will be governed by and construed and enforced in accordance with the internal laws of\nthe State of California, without giving effect to the conflict of laws principles thereof. Each Party hereby submits to personal jurisdiction before any\ncourt of proper subject matter jurisdiction located in Los Angeles, California, to enforce the terms of this Agreement and waives any and all\nobjections to the jurisdiction and proper venue of such courts.\nSection 4.9 . No Third Party Beneficiaries. There are no intended third party beneficiaries to this Agreement.\n7\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective duly authorized officers as of the\ndate first written above.\n99¢ Only Stores\nBy: /S/ RUSSELL WOLPERT\nIts: Chief Legal Officer\nLeonard Green & Partners, L.P.\nBy: LGP Management, Inc.\nBy: /S/ KEITH P. COLLINS\nIts: Associate\n8
+ff2f9c3d7198b961852b39b2b3969255.pdf	effective_date jurisdiction party term	EX-10.1 2 dex101.htm INDEMNIFICATION AGREEMENT AND CONFIDENTIALITY AGREEMENT WITH\nDAVID FREEMAN\nExhibit 10.1\nEXHIBIT B\nINDEMNIFICATION AGREEMENT\nThis Agreement, made and entered into (“Agreement”), by and between Lydall, Inc., a Delaware corporation (“Company”), and David\nFreeman (“Indemnitee”):\nWHEREAS, highly competent persons are becoming more reluctant to serve publicly-held corporations as directors or in other capacities\nunless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions\nagainst them arising out of their service to and activities on behalf of the corporation; and\nWHEREAS, the current impracticability of obtaining adequate insurance and the uncertainties relating to indemnification have increased the\ndifficulty of attracting and retaining such persons;\nWHEREAS, the Board of Directors of the Company has determined that the inability to attract and retain such persons is detrimental to the\nbest interests of the Company’s stockholders and that the Company should act to assure such persons that there will be increased certainty of such\nprotection in the future; and\nWHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify such persons to the fullest\nextent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so\nindemnified; and\nWHEREAS, Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the\ncondition that he be so indemnified;\nNOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant\nand agree as follows:\nSection 1. Services by Indemnitee. Indemnitee agrees to serve (as a director, officer, employee, agent of the Company) (at the request of\nthe Company, as a director, officer, employee, agent, fiduciary of another corporation, partnership, joint venture, trust employee benefit plan or other\nenterprise. Indemnitee may at any time and for any reason resign from such position (subject to any other contractual obligation or any obligation\nimposed by operation of law), in which event the Company shall have no obligation under this Agreement to continue Indemnitee in such position.\n1\nSection 2. Indemnification - General. The Company shall indemnify, and advance Expenses (as hereinafter defined) to, Indemnitee (a) as\nprovided in this Agreement and (b) to the fullest extent permitted by applicable law in effect on the date hereof and as amended from time to time.\nThe rights of Indemnitee provided under the preceding sentence shall include, but shall not be limited to, the rights set forth in the other Sections of\nthis Agreement.\nSection 3. Proceedings Other than Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of\nindemnification provided in this Section 3 if, by reason of his Corporate Status (as hereinafter defined), he is, or is threatened to be made, a party to\nany threatened, pending, or completed Proceeding (as hereinafter defined), other than a Proceeding by or in the right of the Company. Pursuant to\nthis Section 3, Indemnitee shall be indemnified against all expenses, judgements, penalties, fines, and amounts paid in settlement actually and\nreasonably incurred by him or on his behalf in connection with such Proceeding or any claim, issue or matter therein, if he acted in good faith and in\na manner be reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal Proceeding, had no\nreasonable cause to believe his conduct was unlawful.\nSection 4. Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this\nSection 4 if, by reason of his Corporate Status, he is, or is threatened to be made, a party to any threatened, pending or completed Proceeding\nbrought by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section, Indemnitee shall be indemnified against all\nExpenses actually and reasonably incurred by him or on his behalf in connection with such Proceeding if he acted in good faith and in a manner he\nreasonably believed to be in or not opposed to the best interests of the Company; provided, however, that if applicable law so provides, no\nindemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have\nbeen adjudged to be liable to the Company unless and to the extent that the Court of Chancery of the State of Delaware, or the court in which such\nProceeding shall have been brought or is pending, shall determine that such indemnification may be made.\nSection 5. Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provision of this\nAgreement, to the extent that Indemnitee is, by reason of his Corporate Status, a party to and is successful, on the merits or otherwise, in any\nProceeding, he shall be indemnified against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith. If\nIndemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues\nor matters in such Proceeding, the Company shall indemnify Indemnitee against all expenses actually and reasonably incurred by him or on his\nbehalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section and without limitation, the termination of\nany claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim,\nissue or matter.\nSection 6. Indemnification for Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the extent that\nIndemnitee is, by reason of his Corporate Status, a witness in any Proceeding to which Indemnitee is not a party, he shall be indemnified against all\nExpenses actually and reasonably incurred by him or on his behalf in connection therewith.\n2\nSection 7. Advancement of Expenses. The Company shall advance all reasonable Expenses incurred by or on behalf of Indemnitee in\nconnection with any Proceeding within ten days after the receipt by the Company of a statement or statements from Indemnitee requesting such\nadvance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably\nevidence the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by an undertaking by or on behalf of Indemnitee to\nrepay any Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses.\nSection 8. Procedures for Determination of Entitlement to Indemnification.\n(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein\nor therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to\nwhat extent Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for\nindemnification, advise the Board of Directors in writing that Indemnitee has requested indemnification.\n(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 8(a) hereof, a determination,\nif required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case; (i)if a Change in Control (as\nhereinafter defined) shall be made in the Independent Counsel (as hereinafter defined) in a written opinion to the Board of Directors, a copy of which\nshall be delivered to Indemnitee; or (ii) if a Change of Control shall not have occurred, (A) by the Board of Directors by a majority vote of a quorum\nconsisting of Disinterested Directors (as hereinafter defined), or (B) if a quorum of the Board of Directors consisting of Disinterested Directors is not\nobtainable or, even if obtainable, such quorum of Disinterested Directors so directs, by Independent Counsel in a written opinion to the Board of\nDirectors, a copy of which shall be delivered to Indemnitee or (C) if so directed by the Board of Directors, by the stockholders of the Company; and,\nif it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such\ndetermination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to\nindemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is\nnot privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such\ndetermination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with this person,\npersons or entity making such determination shall be borne by the Company (Irrespective of the determination as to Indemnitee’s entitlement to\nindemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.\n3\n(c) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to\nSection 8(b) hereof, the Independent Counsel shall be selected as provided in this Section 8(c). If a Change of Control shall not have occurred, the\nIndependent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising him of the\nidentity of the Independent Counsel so selected. If a Change of Control shall have occurred, the Independent Counsel shall be selected by Indemnitee\n(unless Indemnitee shall request that such selection be made by the Board of Directors, in which event the preceding sentence shall apply), and\nIndemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or\nthe Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, deliver to the Company or to\nIndemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that\nthe Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 17 of this Agreement, and the\nobjection shall set forth with particularity the factual basis of such assertion. If such written objection is so made and substantiated, the Independent\nCounsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such\nobjection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 8(a) hereof,\nno Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Court of Chancery of the\nState of Delaware or other court of competent jurisdiction for resolution of any objection which shall have been made the Company or Indemnitee to\nthe other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Court of by such other\nperson as the Court shall designate, and the person with respect to whom all objections are so resolved or the person so appreciated shall act as\nIndependent Counsel under Section 8(b) hereof. The Company shall pay any and all reasonable fees and expenses of Independent Counsel incurred\nby such Independent Counsel in connection with acting pursuant to Section 8(b) hereof, and the Company shall pay all reasonable fees and expenses\nincident to the procedures of this Section 8(c), regardless of the manner in which such Independent Counsel was selected or appointed. Upon the due\ncommencement of any judicial proceeding or arbitration pursuant to Section 10(a)(iii) of this Agreement, Independent Counsel shall be discharged\nand relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).\nSection 9. Presumptions and Effect of Certain Proceedings.\n(a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification\nhereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this\nAgreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall\nhave the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary\nto that presumption.\n4\n(b) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement of conviction, or\nupon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the\nright of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably\nbelieved to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable\ncause to believe that his conduct was unlawful.\nSection 10. Remedies of Indemnitee.\n(a) In the event that (i) a determination is made pursuant to Section 8 of this Agreement that Indemnitee is not entitled to\nindemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 7 of this Agreement, (iii) no\ndetermination of entitlement to indemnification shall have been made pursuant to Section 8(b) of this Agreement within 90 days after receipt by the\nCompany of the request for indemnification, (iv) payment of indemnification is not made pursuant to Section 5 or 6 of this Agreement within ten\n(10) days after receipt by the Company of a written request therefor, or (v) payment of indemnification is not made within 10 (10) days after a\ndetermination has been made that Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an adjudication in an appropriate court of\nthe State of Delaware, or in any other court of competent jurisdiction, of his entitlement to such indemnification or advancement of Expenses.\nAlternatively, Indemnitee, at his option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial\nArbitration Rules of the American Arbitration Association. Indemnitee shall commence such proceeding seeking an adjudication or an award in\narbitration within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 10(a);\nprovided, however, that the foregoing clause shall not apply in respect of a proceeding brought by Indemnitee to enforce his rights under Section 5 of\nthis Agreement.\n(b) In the event that a determination shall have been made pursuant to Section 8(b) of this Agreement that Indemnitee is not\nentitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 10 shall be conducted in all respects as a de\nnovo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination. If a Change of Control shall\nhave occurred, in any judicial proceeding or arbitration commenced pursuant to this Section 10 the Company shall have the burden of proving that\nIndemnitee is not entitled to indemnification or advancement of Expenses, as the case may be.\n(c) If a determination shall have been made pursuant to Section 8(b) of this Agreement that Indemnitee is entitled to\nindemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this\nSection 10, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement\nnot materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.\n5\n(d) In the event that Indemnitee, pursuant to this Section 10, seeks a judicial adjudication of or an award in arbitration to enforce\nhis rights under, or to recover damages for breach of, this Agreement, Indemnitee shall be entitled to recover from the Company, and shall be\nindemnified by the Company against, any and all expenses (of the types described in the definition of Expenses in Section 17 of this Agreement)\nactually and reasonably incurred by him in such judicial adjudication or arbitration, but only if he prevails therein. If it shall be determined in said\njudicial adjudication or arbitration that Indemnitee is entitled to receive part but not all of the indemnification or advancement of expenses sought,\nthe expenses incurred by Indemnitee in connection with such judicial adjudication or arbitration shall be appropriately prorated.\nSection 11. Non-Exclusivity; Survival of Rights; Insurance; Subrogation.\n(a) The rights of indemnification and to receive advancement of Expenses as provided by this Agreement shall not be deemed\nexclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Certificate of Incorporation, the By-Laws,\nany agreement, a vote of stockholders or a resolution of directors, or otherwise. No amendment, alteration or repeal of this Agreement or of any\nprovision hereof shall limit or restrict any right of Indemnitee in his Corporate Status prior to such amendment, alteration or repeal.\n(b) To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers,\nemployees, or agents of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which\nsuch person serves at the request of the Company, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the\nmaximum extent of the coverage available for any such director, officer, employee or agent under such policy or policies.\n(c) In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of\nthe rights of recovery of Indemnities, who shall execute all papers required and take all action necessary to secure such rights, including execution of\nsuch documents as are necessary to enable the Company to bring suit to enforce such rights.\n(d) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if\nand to the extent that Indemnities has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.\nSection 12. Duration of Agreement. This Agreement shall continue until and terminate upon the later of: (a)10 years after the date that\nIndemnitee shall have ceased to serve as a director, officer, employee, or agent of the Company or of any other corporation, partnership, joint\nventure, trust, employee benefit plan or other enterprise which Indemnitee served at the request of the Company; or (b) the final termination of any\nProceeding then pending in respect of\n6\nwhich Indemnitee is granted rights of indemnification or advancement of expenses hereunder and of any proceeding commenced by Indemnitee\npursuant to Section 10 of this Agreement relating thereto. This Agreement shall be binding upon the Company and its successors and assigns and\nshall inure to the benefit of Indemnitee and his heirs, executors and administrators.\nSection 13. Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any\nreason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each\nportion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or\nunenforceable) shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Agreement\n(including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or\nunenforceable, that is not itself invalid, illegal or unenforceable) shall be construed to as to give effect to the intent manifested thereby.\nSection 14. Exception to Right of Indemnification or Advancement of Expenses. Notwithstanding any other provision of this Agreement,\nIndemnitee shall not be entitled to indemnification or advancement of Expenses under this Agreement with respect to any Proceeding brought by\nIndemnitee, or any claim therein prior to a Change in Control, unless the bringing of such Proceeding or making of such claim shall have been\napproved by the Board of Directors.\nSection 15. Identical Counterparts. This agreement may be executed in one or more counterparts, each of which shall for all purposes be\ndeemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party\nagainst whom enforceability is sought needs to be produced to evidence the existence of this Agreement.\nSection 16. Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to\nconstitute part of this Agreement or to affect the construction thereof.\nSection 17. Definitions. (a) The phrase “Change of Control,” as used in this Agreement, shall mean i) an acquisition of the Company by\nmeans of a merger or consolidation or purchase of substantially all of its assets if and when incident thereto (A) the composition of the Board of\nDirectors of the Company (the “Board”) or its successor changes so that a majority of the Board is not comprised of individuals who were members\nof the board immediately prior to such merger, consolidation or purchase of assets or (B) the stockholders of the Company acquire a right to receive,\nin exchange for or upon surrender a majority of their stock, cash or other securities or a combination of the two; and/or ii) the acquisition by a person\n(as that term is hereafter defined) of the voting rights with respect to 25 percent or more of the outstanding Common Stock of the Company if such\nperson was not an officer or director of the Company on the date of this Agreement; and/or iii) the election or appointment to the Board of any\ndirector or directors whose appointment or election or nomination for election was not approved by a vote of at least a majority of the directors then\nstill in office who were either directors on the date hereof or whose election, appointment or nomination for election was previously so approved.\n7\n(b) “Corporate Status” describes the status of a person who is or was a director, officer, employee or agent of the Company or of\nany other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which such person is or was serving at the request\nof the Company.\n(c) “Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of\nwhich indemnification is sought by Indemnitee.\n(d) “Effective Date” means January 10, 2007.\n(e) “Expenses” shall include all reasonable attorney’s fees, retainers, court costs, transcript costs, fees of experts, witness fees,\ntravel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or\nexpenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, or being or\npreparing to be a witness in a Proceeding.\n(f) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and\nneither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such\nparty, or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term\n“Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a\nconflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.\n(g) “Proceeding” includes any action, suit, arbitration, alternate dispute resolution mechanism, investigation, administrative\nhearing or any other proceeding, whether civil, criminal, administrative, or investigative, except one (i) initiated by an Indemnitee pursuant to\nSection 10 of this Agreement to enforce his rights under this Agreement or (ii) pending on or before the Effective Date.\nSection 18. Modification and Waiver. No supplement, modification or amendment of this Agreement shall be binding unless executed in\nwriting by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other\nprovisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.\nSection 19. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with any summons,\ncitation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to\nindemnification or advancement of Expenses covered hereunder.\n8\nSection 20. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have\nbeen duly given if (i) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, or\n(ii) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed:\n(a) If to Indemnitee, to:\nDavid Freeman\nxxxxx\nxxxxx\n(b) If to the Company to:\nMary Tremblay\nVice President, General Counsel and Secretary\nLydall, Inc.\nP.O . Box 151\nOne Colonial Road\nManchester, CT 06045-0151\nor to such other address as may have been furnished to Indemnitee by the Company or to the Company by Indemnitee, as the case may be.\nSection 21. Governing Law. The parties agree that this Agreement shall be governed by, and construed and enforced in accordance with,\nthe laws of the State of Delaware.\nSection 22. Miscellaneous. Use of the masculine pronoun shall be deemed to include usage of the feminine pronoun where appropriate.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written.\nATTEST:\nLYDALL, INC.,\nBy /s/ Mary A. Tremblay\nBy /s/ W. Leslie Duffy, Esq.\n9\nINDEMNITEE\n/s/ David Freeman\nDavid Freeman\nxxxxxxxxx\nxxxxxxxxx\n10\nConfidentiality and Non-Compete Agreement\nIn consideration of my employment by the Company, or future employment with an affiliate to whom I am transferred (together the “Company”), the\ncompensation and other benefits to be received by me from the Company, I agree that:\n1. Definitions\nThe term “Confidential Information” as used in this Agreement includes all business information and records which relate to the Company or to\nparties working with the Company under a confidentiality agreement, and which are not known to the public generally, including, but not limited to,\ntechnical notebook records, technical reports, patent applications, machine equipment, computer software, models, process and product designs\nincluding any drawings and descriptions, unwritten knowledge and “know-how”, operating instructions, training manuals, production and\ndevelopment processes, production or other schedules, customer lists, customer buying records, product sales records, sales requests, territory\nlistings, market surveys, plans including marketing plans and long-range plans, salary information, contracts, supplier lists, product costs, policy\nstatements, policy procedures, policy manuals, flowcharts, computer printouts, program listings, reproductions and correspondence.\nThe term “Invention” as used in this Agreement includes any discovery, improvement, design or idea, patentable, copywriteable or otherwise, which\nrelates to any activity or business in which the Company is engaged or any process, equipment, material, product or method (including computer\nsoftware) in which the Company has any direct or indirect interest.\n2. Inventions\nI will disclose promptly to the Company any Invention conceived, developed or perfected by me, either alone or jointly with another or others, while\nI am an employee, whether or not such conception, development or perfection occurs during the hours of my employment.\nI grant to the Company without further compensation, all my right, title and interest in and to any such Invention for the sole use and benefit of the\nCompany, together with all U.S . and foreign patents, trademarks or copyrights that may at any time be granted, and all reissues, renewals and\nextensions of such patents, trademarks or copyrights. At the request and expense of the Company, I will at any time do what the Company\nreasonably believes to be necessary to assist the Company to vest full right and title to each such Invention in the Company, enable the Company to\nobtain and maintain full right and title in any country, prosecute applications for and secure patents (including their reissue, renewal and extension),\ntrademarks, copyrights and any other form of protection for each such Invention, and prosecute or defend any interference or opposition which may\nbe declared involving any such application or patent and any litigation in which the Company may be involved concerning any such Invention. This\nwill include preparing, executing and delivering any written document, drawings, flowcharts, or computer printouts. The provisions of this section\nwill continue after I stop working for the Company and shall be binding on my executors, administrators and assigns, unless waived in writing by the\nCompany.\n11\n3. Confidential Information\nI have not disclosed and will not disclose to the Company, and I will not use, in the discharge of my duties as an employee of the Company, any\ntrade secret or confidential information belonging to a former employer or other person and which has been classified by the former employer or\nother person as a trade secret or confidential information. The limitation set forth in this section shall not apply to matters which (a) are or become\npublic knowledge, (b) were previously known to the Company, (c) are subsequently received by the Company from a third party, or (d) are\nindependently derived by the Company.\nI will not, directly or indirectly, during or at any time after the period of my employment by the Company, use for myself or others, or disclose to\nothers, any Confidential Information, no matter how such information becomes known to me, unless I first obtain the Company’s written consent.\nWhen I leave the Company’s employ, or at any other time upon request by the Company, I will promptly deliver to the Company all documents and\nrecords, including but not limited to those listed under the definition of Confidential Information, which are in my possession or under my control\nand which pertain to the Company, any of its activities or any of my activities while in the course of my employment and all copies thereof. I will not\nretain or deliver to any others copies of these documents or records.\n4. Non-Competition\nI acknowledge and agree that the Company’s business competes upon a worldwide basis, and that the degree of competition in that business is high. I\nrecognize that the Company may assign me to duties in a geographic area or specific market. I agree that, unless I first obtain the Company’s written\nconsent, I will not during my employment with the Company and for a period of two (2) years following the termination of my employment\n(provided, however, that if I am employed by the Company for less than two (2) years, the post-employment period to which this section applies shall\nbe the greater of six (6) months or the length of my employment in any capacity), directly or indirectly or through others, individually, or as a\nmember, officer, director, employee, agent, or investor of any partnership or entity (except ownership of not more than one percent (1%) of the\noutstanding publicly traded stock of any company):\n(i) participate in the ownership, management, operation or control of, or work for (as an employee, consultant or independent contractor) or\nhave any material financial interest in, any business competitive with the Company in (a) any market in which the company for which I have\nworked in the two (2) preceding years has sold or attempted to sell any of its product in the two (2) years preceding my termination or (b) if the\nCompany has assigned me to duties in a geographic area, within two hundred fifty (250) miles of any such geographic area in which I have\nworked in the two (2) years preceding my termination,\n12\n(ii) induce or encourage any employee of the Company to terminate his or her employment with the Company, or\n(iii) solicit, induce or encourage any person, business or entity which is a supplier of, a purchaser from, or a contracting party with, the\nCompany to terminate any written or oral agreement, order or understanding with the Company or to conduct business in a way that results in\nan adverse impact to the Company.\nI further understand and agree that the remedy at law for any breach or threatened breach of my agreement not to compete contained in this section\nwould be inadequate and that any breach or attempted breach would result in irreparable damage to the Company, the monetary amount of which\nwould be impossible to ascertain. Thus, I agree that in the event of any breach or threatened breach of my agreement not to compete, in addition to\nall other available legal or equitable remedies, the Company may obtain injunctive relief to remedy damage caused by such breach or threatened\nbreach, and that the Company shall be entitled to recover from me its costs and expenses, including reasonable attorney fees, incurred in remedying\nsuch breach or threatened breach.\n5. General Terms\nI represent and agree that I have and will assume no obligations to others inconsistent with any of my obligations to the Company under this\nAgreement.\nIn consideration of my employment, I agree to conform to the policies of the Company. I understand that my employment is for an indefinite period\nand can be terminated at any time, with or without cause or prior notice by either the Company or me, and will remain so unless a written agreement\nfor a specific term is entered into and executed by me and the Company’s CEO or CFO. No other representations or agreements have been made\nregarding the term or termination of my employment. I understand that no employee of the Company other than its CEO or CFO has the authority to\nenter into any agreement, commitment or guarantees binding on the Company regarding my employment and then only by a signed, written\ndocument.\nThis Agreement, which is ancillary to any other agreement I may have with the Company, (a) is intended as the complete and exclusive statement of\nmy agreement with the Company with respect to its subject matter, (b) shall be binding upon my heirs, executors and administrators, (c) shall be\nassignable by the Company to its successors; (d) shall not be modified unless in writing and signed by me and the Company, (e) shall be governed by\nand construed in accordance with the law of the State of Connecticut, the Company ‘s home office state, and (f) if any part of this Agreement is\nfound invalid by any court, the remainder shall be valid and enforceable in law and equity.\n/s/ David Freeman\n(Employee Signature)\n/s/ Rae Holmes\n(Witness to Signature)\nDavid Freeman\n(Employee printed name)\n7/2/03\n(Date)\n13\nLydall, Inc.\nBy: /s/ Roger M. Widmann\nName: Roger M. Widmann\nTitle: Chairman\n14	EX-10.1 2 dex101.htm INDEMNIFICATION AGREEMENT AND CONFIDENTIALITY AGREEMENT WITH\nDAVID FREEMAN\nExhibit 10.1\nEXHIBIT B\nINDEMNIFICATION AGREEMENT\nThis Agreement, made and entered into (“Agreement”), by and between Lydall, Inc., a Delaware corporation (“Company”), and David\nFreeman (“Indemnitee™):\nWHEREAS, highly competent persons are becoming more reluctant to serve publicly-held corporations as directors or in other capacities\nunless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions\nagainst them arising out of their service to and activities on behalf of the corporation; and\nWHEREAS, the current impracticability of obtaining adequate insurance and the uncertainties relating to indemnification have increased the\ndifficulty of attracting and retaining such persons;\nWHEREAS, the Board of Directors of the Company has determined that the inability to attract and retain such persons is detrimental to the\nbest interests of the Company’s stockholders and that the Company should act to assure such persons that there will be increased certainty of such\nprotection in the future; and\nWHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify such persons to the fullest\nextent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so\nindemnified; and\nWHEREAS, Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the\ncondition that he be so indemnified;\nNOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant\nand agree as follows:\nSection 1. Services by Indemnitee. Indemnitee agrees to serve (as a director, officer, employee, agent of the Company) (at the request of\nthe Company, as a director, officer, employee, agent, fiduciary of another corporation, partnership, joint venture, trust employee benefit plan or other\nenterprise. Indemnitee may at any time and for any reason resign from such position (subject to any other contractual obligation or any obligation\nimposed by operation of law), in which event the Company shall have no obligation under this Agreement to continue Indemnitee in such position.\n1\nSection 2. Indemnification - General. The Company shall indemnify, and advance Expenses (as hereinafter defined) to, Indemnitee (a) as\nprovided in this Agreement and (b) to the fullest extent permitted by applicable law in effect on the date hereof and as amended from time to time.\nThe rights of Indemnitee provided under the preceding sentence shall include, but shall not be limited to, the rights set forth in the other Sections of\nthis Agreement.\nindemnification provided in this Section 3 if, by reason of his Corporate Status (as hereinafter defined), he is, or is threatened to be made, a party to\nany threatened, pending, or completed Proceeding (as hereinafter defined), other than a Proceeding by or in the right of the Company. Pursuant to\nthis Section 3, Indemnitee shall be indemnified against all expenses, judgements, penalties, fines, and amounts paid in settlement actually and\nreasonably incurred by him or on his behalf in connection with such Proceeding or any claim, issue or matter therein, if he acted in good faith and in\na manner be reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal Proceeding, had no\nreasonable cause to believe his conduct was unlawful.\nSection 4. Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this\nSection 4 if, by reason of his Corporate Status, he is, or is threatened to be made, a party to any threatened, pending or completed Proceeding\nbrought by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section, Indemnitee shall be indemnified against all\nExpenses actually and reasonably incurred by him or on his behalf in connection with such Proceeding if he acted in good faith and in a manner he\nreasonably believed to be in or not opposed to the best interests of the Company; provided, however, that if applicable law so provides, no\nindemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have\nbeen adjudged to be liable to the Company unless and to the extent that the Court of Chancery of the State of Delaware, or the court in which such\nProceeding shall have been brought or is pending, shall determine that such indemnification may be made.\nAgreement, to the extent that Indemnitee is, by reason of his Corporate Status, a party to and is successful, on the merits or otherwise, in any\nProceeding, he shall be indemnified against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith. If\nIndemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues\nor matters in such Proceeding, the Company shall indemnify Indemnitee against all expenses actually and reasonably incurred by him or on his\nbehalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section and without limitation, the termination of\nany claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim,\nissue or matter.\nSection 6. Indemnification for Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the extent that\nIndemnitee is, by reason of his Corporate Status, a witness in any Proceeding to which Indemnitee is not a party, he shall be indemnified against all\nExpenses actually and reasonably incurred by him or on his behalf in connection therewith.\n2\nSection 7. Advancement of Expenses. The Company shall advance all reasonable Expenses incurred by or on behalf of Indemnitee in\nconnection with any Proceeding within ten days after the receipt by the Company of a statement or statements from Indemnitee requesting such\nadvance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably\nevidence the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by an undertaking by or on behalf of Indemnitee to\nrepay any Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses.\nSection 8. Procedures for Determination of Entitlement to Indemnification.\n(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein\nor therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to\nwhat extent Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for\nindemnification, advise the Board of Directors in writing that Indemnitee has requested indemnification.\n(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 8(a) hereof, a determination,\nif required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case; (i)if a Change in Control (as\nhereinafter defined) shall be made in the Independent Counsel (as hereinafter defined) in a written opinion to the Board of Directors, a copy of which\nshall be delivered to Indemnitee; or (ii) if a Change of Control shall not have occurred, (A) by the Board of Directors by a majority vote of a quorum\nconsisting of Disinterested Directors (as hereinafter defined), or (B) if a quorum of the Board of Directors consisting of Disinterested Directors is not\nobtainable or, even if obtainable, such quorum of Disinterested Directors so directs, by Independent Counsel in a written opinion to the Board of\nDirectors, a copy of which shall be delivered to Indemnitee or (C) if so directed by the Board of Directors, by the stockholders of the Company; and,\nif it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such\ndetermination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to\nindemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is\nnot privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such\ndetermination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with this person,\npersons or entity making such determination shall be borne by the Company (Irrespective of the determination as to Indemnitee’s entitlement to\nindemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.\n3\n(c) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to\nSection 8(b) hereof, the Independent Counsel shall be selected as provided in this Section 8(c). If a Change of Control shall not have occurred, the\nIndependent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising him of the\nidentity of the Independent Counsel so selected. If a Change of Control shall have occurred, the Independent Counsel shall be selected by Indemnitee\n(unless Indemnitee shall request that such selection be made by the Board of Directors, in which event the preceding sentence shall apply), and\nIndemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or\nthe Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, deliver to the Company or to\nIndemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that\nthe Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 17 of this Agreement, and the\nobjection shall set forth with particularity the factual basis of such assertion. If such written objection is so made and substantiated, the Independent\nCounsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such\nobjection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 8(a) hereof,\nno Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Court of Chancery of the\nState of Delaware or other court of competent jurisdiction for resolution of any objection which shall have been made the Company or Indemnitee to\nthe other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Court of by such other\nperson as the Court shall designate, and the person with respect to whom all objections are so resolved or the person so appreciated shall act as\nIndependent Counsel under Section 8(b) hereof. The Company shall pay any and all reasonable fees and expenses of Independent Counsel incurred\nby such Independent Counsel in connection with acting pursuant to Section 8(b) hereof, and the Company shall pay all reasonable fees and expenses\nincident to the procedures of this Section 8(c), regardless of the manner in which such Independent Counsel was selected or appointed. Upon the due\ncommencement of any judicial proceeding or arbitration pursuant to Section 10(a)(iii) of this Agreement, Independent Counsel shall be discharged\nand relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).\n \n \nSection 9. Presumptions and Effect of Certain Proceedings.\n(a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification\nhereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this\nAgreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall\nhave the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary\nto that presumption.\n(b) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement of conviction, or\nupon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the\nright of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably\nbelieved to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable\ncause to believe that his conduct was unlawful.\nSection 10. Remedies of Indemnitee.\n(a) In the event that (i) a determination is made pursuant to Section 8 of this Agreement that Indemnitee is not entitled to\nindemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 7 of this Agreement, (iii) no\ndetermination of entitlement to indemnification shall have been made pursuant to Section 8(b) of this Agreement within 90 days after receipt by the\nCompany of the request for indemnification, (iv) payment of indemnification is not made pursuant to Section 5 or 6 of this Agreement within ten\n(10) days after receipt by the Company of a written request therefor, or (v) payment of indemnification is not made within 10 (10) days after a\ndetermination has been made that Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an adjudication in an appropriate court of\nthe State of Delaware, or in any other court of competent jurisdiction, of his entitlement to such indemnification or advancement of Expenses.\nAlternatively, Indemnitee, at his option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial\nArbitration Rules of the American Arbitration Association. Indemnitee shall commence such proceeding seeking an adjudication or an award in\narbitration within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 10(a);\nprovided, however, that the foregoing clause shall not apply in respect of a proceeding brought by Indemnitee to enforce his rights under Section 5 of\nthis Agreement.\n \n(b) In the event that a determination shall have been made pursuant to Section 8(b) of this Agreement that Indemnitee is not\nentitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 10 shall be conducted in all respects as a de\nnovo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination. If a Change of Control shall\nhave occurred, in any judicial proceeding or arbitration commenced pursuant to this Section 10 the Company shall have the burden of proving that\nIndemnitee is not entitled to indemnification or advancement of Expenses, as the case may be.\n(c) If a determination shall have been made pursuant to Section 8(b) of this Agreement that Indemnitee is entitled to\nindemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this\nSection 10, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement\nnot materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.\n5\n(d) In the event that Indemnitee, pursuant to this Section 10, seeks a judicial adjudication of or an award in arbitration to enforce\nhis rights under, or to recover damages for breach of, this Agreement, Indemnitee shall be entitled to recover from the Company, and shall be\nindemnified by the Company against, any and all expenses (of the types described in the definition of Expenses in Section 17 of this Agreement)\nactually and reasonably incurred by him in such judicial adjudication or arbitration, but only if he prevails therein. If it shall be determined in said\njudicial adjudication or arbitration that Indemnitee is entitled to receive part but not all of the indemnification or advancement of expenses sought,\nthe expenses incurred by Indemnitee in connection with such judicial adjudication or arbitration shall be appropriately prorated.\nSection 11. Non-Exclusivity; Survival of Rights; Insurance; Subrogation.\n(a) The rights of indemnification and to receive advancement of Expenses as provided by this Agreement shall not be deemed\nexclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Certificate of Incorporation, the By-Laws,\nany agreement, a vote of stockholders or a resolution of directors, or otherwise. No amendment, alteration or repeal of this Agreement or of any\nprovision hereof shall limit or restrict any right of Indemnitee in his Corporate Status prior to such amendment, alteration or repeal.\n(b) To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers,\nemployees, or agents of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which\nsuch person serves at the request of the Company, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the\nmaximum extent of the coverage available for any such director, officer, employee or agent under such policy or policies.\n(c) In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of\nthe rights of recovery of Indemnities, who shall execute all papers required and take all action necessary to secure such rights, including execution of\nsuch documents as are necessary to enable the Company to bring suit to enforce such rights.\n(d) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if\nand to the extent that Indemnities has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.\nSection 12. Duration of Agreement. This Agreement shall continue until and terminate upon the later of: (a)10 years after the date that\nIndemnitee shall have ceased to serve as a director, officer, employee, or agent of the Company or of any other corporation, partnership, joint\nventure, trust, employee benefit plan or other enterprise which Indemnitee served at the request of the Company; or (b) the final termination of any\nProceeding then pending in respect of\nwhich Indemnitee is granted rights of indemnification or advancement of expenses hereunder and of any proceeding commenced by Indemnitee\npursuant to Section 10 of this Agreement relating thereto. This Agreement shall be binding upon the Company and its successors and assigns and\nshall inure to the benefit of Indemnitee and his heirs, executors and administrators.\nSection 13. Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any\nreason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each\nportion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or\nunenforceable) shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Agreement\n(including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or\nunenforceable, that is not itself invalid, illegal or unenforceable) shall be construed to as to give effect to the intent manifested thereby.\nSection 14. Exception to Right of Indemnification or Advancement of Expenses. Notwithstanding any other provision of this Agreement,\nIndemnitee shall not be entitled to indemnification or advancement of Expenses under this Agreement with respect to any Proceeding brought by\nIndemnitee, or any claim therein prior to a Change in Control, unless the bringing of such Proceeding or making of such claim shall have been\napproved by the Board of Directors.\n \nSection 15. Identical Counterparts. This agreement may be executed in one or more counterparts, each of which shall for all purposes be\ndeemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party\nagainst whom enforceability is sought needs to be produced to evidence the existence of this Agreement.\nSection 16. Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to\nconstitute part of this Agreement or to affect the construction thereof.\nSection 17. Definitions. (a) The phrase “Change of Control,” as used in this Agreement, shall mean i) an acquisition of the Company by\nmeans of a merger or consolidation or purchase of substantially all of its assets if and when incident thereto (A) the composition of the Board of\nDirectors of the Company (the “Board”) or its successor changes so that a majority of the Board is not comprised of individuals who were members\nof the board immediately prior to such merger, consolidation or purchase of assets or (B) the stockholders of the Company acquire a right to receive,\nin exchange for or upon surrender a majority of their stock, cash or other securities or a combination of the two; and/or ii) the acquisition by a person\n(as that term is hereafter defined) of the voting rights with respect to 25 percent or more of the outstanding Common Stock of the Company if such\nperson was not an officer or director of the Company on the date of this Agreement; and/or iii) the election or appointment to the Board of any\ndirector or directors whose appointment or election or nomination for election was not approved by a vote of at least a majority of the directors then\nstill in office who were either directors on the date hereof or whose election, appointment or nomination for election was previously so approved.\n7\n(b) “Corporate Status” describes the status of a person who is or was a director, officer, employee or agent of the Company or of\nany other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which such person is or was serving at the request\nof the Company.\n(c) “Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of\nwhich indemnification is sought by Indemnitee.\n(d) “Effective Date” means January 10, 2007.\n(e) “Expenses” shall include all reasonable attorney’s fees, retainers, court costs, transcript costs, fees of experts, witness fees,\ntravel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or\nexpenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, or being or\npreparing to be a witness in a Proceeding.\n(f) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and\nneither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such\nparty, or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term\n“Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a\nconflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.\n(g) “Proceeding” includes any action, suit, arbitration, alternate dispute resolution mechanism, investigation, administrative\nhearing or any other proceeding, whether civil, criminal, administrative, or investigative, except one (i) initiated by an Indemnitee pursuant to\nSection 10 of this Agreement to enforce his rights under this Agreement or (ii) pending on or before the Effective Date.\nSection 18. Modification and Waiver. No supplement, modification or amendment of this Agreement shall be binding unless executed in\nwriting by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other\nprovisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.\nSection 19. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with any summons,\ncitation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to\nindemnification or advancement of Expenses covered hereunder.\nSection 20. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have\nbeen duly given if (i) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, or\n(ii) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed:\n \n(a) If to Indemnitee, to:\nDavid Freeman\nXXXXX\nXXXXX\n(b) If to the Company to:\nMary Tremblay\nVice President, General Counsel and Secretary\nLydall, Inc.\nP.O. Box 151\nOne Colonial Road\nManchester, CT 06045-0151\nor to such other address as may have been furnished to Indemnitee by the Company or to the Company by Indemnitee, as the case may be.\nSection 21. Governing Law. The parties agree that this Agreement shall be governed by, and construed and enforced in accordance with,\nthe laws of the State of Delaware.\nSection 22. Miscellaneous. Use of the masculine pronoun shall be deemed to include usage of the feminine pronoun where appropriate.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written.\nATTEST: LYDALL, INC.,,\nBy /s/ Mary A. Tremblay By  /s/ W. Leslie Duffy, Esq.\n10\n \nINDEMNITEE\n/s/ David Freeman\nDavid Freeman\nXXXXXXXXX\nXXXXXXXXX\nConfidentiality and Non-Compete Agreement\nIn consideration of my employment by the Company, or future employment with an affiliate to whom I am transferred (together the “Company”), the\ncompensation and other benefits to be received by me from the Company, I agree that:\n1. Definitions\nThe term “Confidential Information” as used in this Agreement includes all business information and records which relate to the Company or to\nparties working with the Company under a confidentiality agreement, and which are not known to the public generally, including, but not limited to,\ntechnical notebook records, technical reports, patent applications, machine equipment, computer software, models, process and product designs\nincluding any drawings and descriptions, unwritten knowledge and “know-how”, operating instructions, training manuals, production and\ndevelopment processes, production or other schedules, customer lists, customer buying records, product sales records, sales requests, territory\nlistings, market surveys, plans including marketing plans and long-range plans, salary information, contracts, supplier lists, product costs, policy\nstatements, policy procedures, policy manuals, flowcharts, computer printouts, program listings, reproductions and correspondence.\nThe term “Invention” as used in this Agreement includes any discovery, improvement, design or idea, patentable, copywriteable or otherwise, which\nrelates to any activity or business in which the Company is engaged or any process, equipment, material, product or method (including computer\nsoftware) in which the Company has any direct or indirect interest.\n2. Inventions\nI will disclose promptly to the Company any Invention conceived, developed or perfected by me, either alone or jointly with another or others, while\nI am an employee, whether or not such conception, development or perfection occurs during the hours of my employment.\nI grant to the Company without further compensation, all my right, title and interest in and to any such Invention for the sole use and benefit of the\nCompany, together with all U.S. and foreign patents, trademarks or copyrights that may at any time be granted, and all reissues, renewals and\nextensions of such patents, trademarks or copyrights. At the request and expense of the Company, I will at any time do what the Company\nreasonably believes to be necessary to assist the Company to vest full right and title to each such Invention in the Company, enable the Company to\nobtain and maintain full right and title in any country, prosecute applications for and secure patents (including their reissue, renewal and extension),\ntrademarks, copyrights and any other form of protection for each such Invention, and prosecute or defend any interference or opposition which may\nbe declared involving any such application or patent and any litigation in which the Company may be involved concerning any such Invention. This\nwill include preparing, executing and delivering any written document, drawings, flowcharts, or computer printouts. The provisions of this section\nwill continue after I stop working for the Company and shall be binding on my executors, administrators and assigns, unless waived in writing by the\nCompany.\n11\n3. Confidential Information\nI have not disclosed and will not disclose to the Company, and I will not use, in the discharge of my duties as an employee of the Company, any\ntrade secret or confidential information belonging to a former employer or other person and which has been classified by the former employer or\nother person as a trade secret or confidential information. The limitation set forth in this section shall not apply to matters which (a) are or become\npublic knowledge, (b) were previously known to the Company, (c) are subsequently received by the Company from a third party, or (d) are\nindependently derived by the Company.\nI will not, directly or indirectly, during or at any time after the period of my employment by the Company, use for myself or others, or disclose to\nothers, any Confidential Information, no matter how such information becomes known to me, unless I first obtain the Company’s written consent.\nWhen I leave the Company’s employ, or at any other time upon request by the Company, I will promptly deliver to the Company all documents and\nrecords, including but not limited to those listed under the definition of Confidential Information, which are in my possession or under my control\nand which pertain to the Company, any of its activities or any of my activities while in the course of my employment and all copies thereof. I will not\nretain or deliver to any others copies of these documents or records.\n4. Non-Competition\nI acknowledge and agree that the Company’s business competes upon a worldwide basis, and that the degree of competition in that business is high. I\nrecognize that the Company may assign me to duties in a geographic area or specific market. I agree that, unless I first obtain the Company’s written\nconsent, I will not during my employment with the Company and for a period of two (2) years following the termination of my employment\n(provided, however, that if I am employed by the Company for less than two (2) years, the post-employment period to which this section applies shall\nbe the greater of six (6) months or the length of my employment in any capacity), directly or indirectly or through others, individually, or as a\nmember, officer, director, employee, agent, or investor of any partnership or entity (except ownership of not more than one percent (1%) of the\noutstanding publicly traded stock of any company):\n(i) participate in the ownership, management, operation or control of, or work for (as an employee, consultant or independent contractor) or\nhave any material financial interest in, any business competitive with the Company in (a) any market in which the company for which I have\nworked in the two (2) preceding years has sold or attempted to sell any of its product in the two (2) years preceding my termination or (b) if the\nCompany has assigned me to duties in a geographic area, within two hundred fifty (250) miles of any such geographic area in which I have\nworked in the two (2) years preceding my termination,\n12\n(ii) induce or encourage any employee of the Company to terminate his or her employment with the Company, or\n(iii) solicit, induce or encourage any person, business or entity which is a supplier of, a purchaser from, or a contracting party with, the\nCompany to terminate any written or oral agreement, order or understanding with the Company or to conduct business in a way that results in\nan adverse impact to the Company.\nI further understand and agree that the remedy at law for any breach or threatened breach of my agreement not to compete contained in this section\nwould be inadequate and that any breach or attempted breach would result in irreparable damage to the Company, the monetary amount of which\nwould be impossible to ascertain. Thus, I agree that in the event of any breach or threatened breach of my agreement not to compete, in addition to\nall other available legal or equitable remedies, the Company may obtain injunctive relief to remedy damage caused by such breach or threatened\nbreach, and that the Company shall be entitled to recover from me its costs and expenses, including reasonable attorney fees, incurred in remedying\nsuch breach or threatened breach.\n5. General Terms\nI represent and agree that I have and will assume no obligations to others inconsistent with any of my obligations to the Company under this\nAgreement.\nIn consideration of my employment, I agree to conform to the policies of the Company. I understand that my employment is for an indefinite period\nand can be terminated at any time, with or without cause or prior notice by either the Company or me, and will remain so unless a written agreement\nfor a specific term is entered into and executed by me and the Company’s CEO or CFO. No other representations or agreements have been made\nregarding the term or termination of my employment. I understand that no employee of the Company other than its CEO or CFO has the authority to\nenter into any agreement, commitment or guarantees binding on the Company regarding my employment and then only by a signed, written\ndocument.\nThis Agreement, which is ancillary to any other agreement I may have with the Company, (a) is intended as the complete and exclusive statement of\nmy agreement with the Company with respect to its subject matter, (b) shall be binding upon my heirs, executors and administrators, (c) shall be\nassignable by the Company to its successors; (d) shall not be modified unless in writing and signed by me and the Company, (e) shall be governed by\nand construed in accordance with the law of the State of Connecticut, the Company ‘s home office state, and (f) if any part of this Agreement is\nfound invalid by any court, the remainder shall be valid and enforceable in law and equity.\n/s/ David Freeman (Employee Signature) /s/ Rae Holmes (Witness to Signature)\nDavid Freeman (Employee printed name) 7/2/03 (Date)\n13\n \nLydall, Inc.\nBy: /s/ Roger M. Widmann\nName: Roger M. Widmann\nTitle:  Chairman\n14	EX-10.1 2 dex101.htm INDEMNIFICATION AGREEMENT AND CONFIDENTIALITY AGREEMENT WITH\nDAVID FREEMAN\nExhibit 10.1\nEXHIBIT B\nINDEMNIFICATION AGREEMENT\nThis Agreement, made and entered into ("Agreement"), by and between Lydall, Inc., a Delaware corporation ("Company"), and David\nFreeman ("Indemnitee"):\nWHEREAS, highly competent persons are becoming more reluctant to serve publicly-held corporations as directors or in other capacities\nunless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions\nagainst them arising out of their service to and activities on behalf of the corporation; and\nWHEREAS, the current impracticability of obtaining adequate insurance and the uncertainties relating to indemnification have increased the\ndifficulty of attracting and retaining such persons;\nWHEREAS, the Board of Directors of the Company has determined that the inability to attract and retain such persons is detrimental to the\nbest interests of the Company's stockholders and that the Company should act to assure such persons that there will be increased certainty of such\nprotection in the future; and\nWHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify such persons to the fullest\nextent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so\nindemnified; and\nWHEREAS, Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the\ncondition that he be so indemnified;\nNOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant\nand agree as follows:\nSection 1. Services by Indemnitee. Indemnitee agrees to serve (as a director, officer, employee, agent of the Company) (at the request of\nthe Company, as a director, officer, employee, agent, fiduciary of another corporation, partnership, joint venture, trust employee benefit plan or other\nenterprise. Indemnitee may at any time and for any reason resign from such position (subject to any other contractual obligation or any obligation\nimposed by operation of law), in which event the Company shall have no obligation under this Agreement to continue Indemnitee in such position.\n1\nSection 2. Indemnification General. The Company shall indemnify, and advance Expenses (as hereinafter defined) to, Indemnitee (a) as\nprovided in this Agreement and (b) to the fullest extent permitted by applicable law in effect on the date hereof and as amended from time to time.\nThe rights of Indemnitee provided under the preceding sentence shall include, but shall not be limited to, the rights set forth in the other Sections of\nthis Agreement.\nSection 3. Proceedings Other than Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of\nindemnification provided in this Section 3 if, by reason of his Corporate Status (as hereinafter defined), he is, or is threatened to be made, a party to\nany threatened, pending, or completed Proceeding (as hereinafter defined), other than a Proceeding by or in the right of the Company. Pursuant to\nthis Section 3, Indemnitee shall be indemnified against all expenses, judgements, penalties, fines, and amounts paid in settlement actually and\nreasonably incurred by him or on his behalf in connection with such Proceeding or any claim, issue or matter therein, if he acted in good faith and in\na manner be reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal Proceeding, had no\nreasonable cause to believe his conduct was unlawful.\nSection 4. Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this\nSection 4 if, by reason of his Corporate Status, he is, or is threatened to be made, a party to any threatened, pending or completed Proceeding\nbrought by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section, Indemnitee shall be indemnified against\nall\nExpenses actually and reasonably incurred by him or on his behalf in connection with such Proceeding if he acted in good faith and in a manner he\nreasonably believed to be in or not opposed to the best interests of the Company; provided, however, that if applicable law so provides, no\nindemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have\nbeen adjudged to be liable to the Company unless and to the extent that the Court of Chancery of the State of Delaware, or the court in which such\nProceeding shall have been brought or is pending, shall determine that such indemnification may be made.\nSection 5. Indemnification for Expenses of a Party Who is Wholly or Partly. Successful. Notwithstanding any other provision of this\nAgreement, to the extent that Indemnitee is, by reason of his Corporate Status, a party to and is successful, on the merits or otherwise, in any\nProceeding, he shall be indemnified against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith. If\nIndemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues\nor matters in such Proceeding, the Company shall indemnify Indemnitee against all expenses actually and reasonably incurred by him or on his\nbehalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section and without limitation, the termination of\nany claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim,\nissue or matter.\nSection 6. Indemnification for Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the extent that\nIndemnitee is, by reason of his Corporate Status, a witness in any Proceeding to which Indemnitee is not a party, he shall be indemnified against all\nExpenses actually and reasonably incurred by him or on his behalf in connection therewith.\n2\nSection 7. Advancement of Expenses. The Company shall advance all reasonable Expenses incurred by or on behalf of Indemnitee in\nconnection with any Proceeding within ten days after the receipt by the Company of a statement or statements from Indemnitee requesting such\nadvance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably\nevidence the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by an undertaking by or on behalf of Indemnitee to\nrepay any Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses.\nSection 8. Procedures for Determination of Entitlement to Indemnification.\n(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein\nor therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to\nwhat extent Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for\nindemnification, advise the Board of Directors in writing that Indemnitee has requested indemnification.\n(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 8(a) hereof, a determination,\nif required by applicable law, with respect to Indemnitee's entitlement thereto shall be made in the specific case; (i)if a Change in Control (as\nhereinafter defined) shall be made in the Independent Counsel (as hereinafter defined) in a written opinion to the Board of Directors, a copy of which\nshall be delivered to Indemnitee; or (ii) if a Change of Control shall not have occurred, (A) by the Board of Directors by a majority vote of a quorum\nconsisting of Disinterested Directors (as hereinafter defined), or (B) if a quorum of the Board of Directors consisting of Disinterested Directors is not\nobtainable or, even if obtainable, such quorum of Disinterested Directors so directs, by Independent Counsel in a written opinion to the Board of\nDirectors, a copy of which shall be delivered to Indemnitee or (C) if so directed by the Board of Directors, by the stockholders of the Company; and,\nif it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such\ndetermination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee's entitlement to\nindemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which\nis\nnot privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such\ndetermination. Any costs or expenses (including attorneys' fees and disbursements) incurred by Indemnitee in so cooperating with this person,\npersons or entity making such determination shall be borne by the Company (Irrespective of the determination as to Indemnitee's entitlement to\nindemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.\n3\n(c)\nIn the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant\nto\nSection 8(b) hereof, the Independent Counsel shall be selected as provided in this Section 8(c). If a Change of Control shall not have occurred, the\nIndependent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising him of the\nidentity of the Independent Counsel so selected. If a Change of Control shall have occurred, the Independent Counsel shall be selected by Indemnitee\n(unless Indemnitee shall request that such selection be made by the Board of Directors, in which event the preceding sentence shall apply), and\nIndemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee\nor\nthe Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, deliver to the Company or to\nIndemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that\nthe Independent Counsel so selected does not meet the requirements of "Independent Counsel" as defined in Section 17 of this Agreement, and the\nobjection shall set forth with particularity the factual basis of such assertion. If such written objection is so made and substantiated, the Independent\nCounsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such\nobjection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 8(a) hereof,\nno Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Court of Chancery of the\nState of Delaware or other court of competent jurisdiction for resolution of any objection which shall have been made the Company or Indemnitee to\nthe other's selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Court of by such other\nperson as the Court shall designate, and the person with respect to whom all objections are so resolved or the person so appreciated shall act as\nIndependent Counsel under Section 8(b) hereof. The Company shall pay any and all reasonable fees and expenses of Independent Counsel incurred\nby such Independent Counsel in connection with acting pursuant to Section 8(b) hereof, and the Company shall pay all reasonable fees and expenses\nincident to the procedures of this Section 8(c), regardless of the manner in which such Independent Counsel was selected or appointed. Upon the due\ncommencement of any judicial proceeding or arbitration pursuant to Section 10(a)(iii) of this Agreement, Independent Counsel shall be discharged\nand relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).\nSection 9. Presumptions and Effect of Certain Proceedings.\n(a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification\nhereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this\nAgreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall\nhave the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary\nto that presumption.\n4\n(b) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement of conviction\nor\nupon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the\nright of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably\nbelieved to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable\ncause to believe that his conduct was unlawful.\nSection 10. Remedies of Indemnitee\n(a) In the event that (i) a determination is made pursuant to Section 8 of this Agreement that Indemnitee is not entitled to\nindemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 7 of this Agreement, (iii) no\ndetermination of entitlement to indemnification shall have been made pursuant to Section 8(b) of this Agreement within 90 days after receipt by the\nCompany of the request for indemnification, (iv) payment of indemnification is not made pursuant to Section 5 or 6 of this Agreement within ten\ndetermination has been made that Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an adjudication in an appropriate court\n(10) days after receipt by the Company of a written request therefor, or (v) payment of indemnification is not made within 10 (10) days after a of\nthe State of Delaware, or in any other court of competent jurisdiction, of his entitlement to such indemnification or advancement of Expenses.\nAlternatively, Indemnitee, at his option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial\nArbitration Rules of the American Arbitration Association. Indemnitee shall commence such proceeding seeking an adjudication or an award in\narbitration within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 10(a);\nprovided, however, that the foregoing clause shall not apply in respect of a proceeding brought by Indemnitee to enforce his rights under Section 5 of\nthis Agreement.\n(b) In the event that a determination shall have been made pursuant to Section 8(b) of this Agreement that Indemnitee is not\nentitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 10 shall be conducted in all respects as a de\nnovo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination. If a Change of Control shall\nhave occurred, in any judicial proceeding or arbitration commenced pursuant to this Section 10 the Company shall have the burden of proving that\nIndemnitee is not entitled to indemnification or advancement of Expenses, as the case may be.\n(c) If a determination shall have been made pursuant to Section 8(b) of this Agreement that Indemnitee is entitled to\nindemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this\nSection 10, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement\nnot materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.\n5\n(d) In the event that Indemnitee, pursuant to this Section 10, seeks a judicial adjudication of or an award in arbitration to enforce\nhis rights under, or to recover damages for breach of, this Agreement, Indemnitee shall be entitled to recover from the Company, and shall be\nindemnified by the Company against, any and all expenses (of the types described in the definition of Expenses in Section 17 of this Agreement)\nactually and reasonably incurred by him in such judicial adjudication or arbitration, but only if he prevails therein. If it shall be determined in said\njudicial adjudication or arbitration that Indemnitee is entitled to receive part but not all of the indemnification or advancement of expenses sought,\nthe expenses incurred by Indemnitee in connection with such judicial adjudication or arbitration shall be appropriately prorated.\nSection 11. Non-Exclusivity; Survival of Rights; Insurance; Subrogation.\n(a) The rights of indemnification and to receive advancement of Expenses as provided by this Agreement shall not be deemed\nexclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Certificate of Incorporation, the By-Laws,\nany\nagreement, a vote of stockholders or a resolution of directors, or otherwise. No amendment, alteration or repeal of this Agreement or of any\nprovision hereof shall limit or restrict any right of Indemnitee in his Corporate Status prior to such amendment, alteration or repeal.\n(b) To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers,\nemployees, or agents of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which\nsuch person serves at the request of the Company, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the\nmaximum extent of the coverage available for any such director, officer, employee or agent under such policy or policies.\n(c) In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of\nthe rights of recovery of Indemnities, who shall execute all papers required and take all action necessary to secure such rights, including execution of\nsuch documents as are necessary to enable the Company to bring suit to enforce such rights.\n(d) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if\nand to the extent that Indemnities has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.\nSection 12. Duration of Agreement. This Agreement shall continue until and terminate upon the later of: (a)1( years after the date that\nIndemnitee shall have ceased to serve as a director, officer, employee, or agent of the Company or of any other corporation, partnership, joint\nventure, trust, employee benefit plan or other enterprise which Indemnitee served at the request of the Company; or (b) the final termination of any\nProceeding then pending in respect of\n6\nwhich Indemnitee is granted rights of indemnification or advancement of expenses hereunder and of any proceeding commenced by Indemnitee\npursuant to Section 10 of this Agreement relating thereto. This Agreement shall be binding upon the Company and its successors and assigns and\nshall inure to the benefit of Indemnitee and his heirs, executors and administrators.\nSection 13. Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for\nany\nreason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each\nportion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal\nor\nunenforceable) shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Agreement\n(including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or\nunenforceable, that is not itself invalid, illegal or unenforceable) shall be construed to as to give effect to the intent manifested thereby.\nSection 14. Exception to Right of Indemnification or Advancement of Expenses. Notwithstanding any other provision of this Agreement,\nIndemnitee shall not be entitled to indemnification or advancement of Expenses under this Agreement with respect to any Proceeding brought by\nIndemnitee, or any claim therein prior to a Change in Control, unless the bringing of such Proceeding or making of such claim shall have been\napproved by the Board of Directors.\nSection 15. Identical Counterparts. This agreement may be executed in one or more counterparts, each of which shall for all purposes be\ndeemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party\nagainst whom enforceability is sought needs to be produced to evidence the existence of this Agreement.\nSection 16. Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to\nconstitute part of this Agreement or to affect the construction thereof.\nSection 17. Definitions. (a) The phrase "Change of Control," as used in this Agreement, shall mean i) an acquisition of the Company by\nmeans of a merger or consolidation or purchase of substantially all of its assets if and when incident thereto (A) the composition of the Board of\nDirectors of the Company (the "Board") or its successor changes so that a majority of the Board is not comprised of individuals who were members\nof\nthe\nboard immediately prior to such merger, consolidation or purchase of assets or (B) the stockholders of the Company acquire a right to receive,\nin exchange for or upon surrender a majority of their stock, cash or other securities or a combination of the two; and/or ii) the acquisition by a person\n(as that term is hereafter defined) of the voting rights with respect to 25 percent or more of the outstanding Common Stock of the Company if such\nperson was not an officer or director of the Company on the date of this Agreement; and/or iii) the election or appointment to the Board of any\ndirector or directors whose appointment or election or nomination for election was not approved by a vote of at least a majority of the directors then\nstill in office who were either directors on the date hereof or whose election, appointment or nomination for election was previously so approved.\n7\n(b) "Corporate Status" describes the status of a person who is or was a director, officer, employee or agent of the Company or of\nany other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which such person is or was serving at the request\nof the Company.\n(c) "Disinterested Director" means a director of the Company who is not and was not a party to the Proceeding in respect\nof\nwhich indemnification is sought by Indemnitee.\n(d) "Effective Date" means January 10, 2007.\n(e) "Expenses" shall include all reasonable attorney's fees, retainers, court costs, transcript costs, fees of experts, witness fees,\ntravel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or\nexpenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, or being or\npreparing to be a witness in a Proceeding.\n(f) "Independent Counsel" means a law firm, or a member of a law firm, that is experienced in matters of corporation law and\nneither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such\nparty, or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term\n"Independent Counsel" shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a\nconflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee's rights under this Agreement.\n(g) "Proceeding" includes any action, suit, arbitration, alternate dispute resolution mechanism, investigation, administrative\nhearing or any other proceeding, whether civil, criminal, administrative, or investigative, except one (i) initiated by an Indemnitee pursuant to\nSection 10 of this Agreement to enforce his rights under this Agreement or (ii) pending on or before the Effective Date.\nSection 18. Modification and Waiver. No supplement, modification or amendment of this Agreement shall be binding unless\nexecuted\nin\nwriting by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other\nprovisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.\nSection 19. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with any summons,\ncitation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to\nindemnification or advancement of Expenses covered hereunder.\n8\nSection 20. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to\nhave\nbeen duly given if (i) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, or\n(ii) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed:\n(a)\nIf to Indemnitee, to:\nDavid Freeman\nXXXXX\nXXXXX\n(b)\nIf to the Company to:\nMary Tremblay\nVice President, General Counsel and Secretary\nLydall, Inc.\nP.O. Box 151\nOne Colonial Road\nManchester, CT 06045-0151\nor to such other address as may have been furnished to Indemnitee by the Company or to the Company by Indemnitee, as the case may be.\nSection 21. Governing Law. The parties agree that this Agreement shall be governed by, and construed and enforced in accordance with,\nthe laws of the State of Delaware.\nSection 22. Miscellaneous. Use of the masculine pronoun shall be deemed to include usage of the feminine pronoun where appropriate.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written.\nATTEST:\nLYDALL, INC.,\nBy /s/ Mary A. Tremblay\nBy\n/s/ W. Leslie Duffy, Esq.\n9\nINDEMNITEE\n/s/ David Freeman\nDavid Freeman\nXXXXXXXXX\nXXXXXXXXX\n10\nConfidentiality and Non-Compete Agreement\nIn consideration of my employment by the Company, or future employment with an affiliate to whom I am transferred (together the "Company"), the\ncompensation and other benefits to be received by me from the Company, I agree that:\n1. Definitions\nThe term "Confidential Information" as used in this Agreement includes all business information and records which relate to the Company or to\nparties\nworking\nwith\nthe\nCompany\nunder\na\nconfidentiality\nagreement,\nand\nwhich\nare\nnot\nknown\nto\nthe\npublic\ngenerally,\nincluding,\nbut\nnot\nlimited\nto,\ntechnical notebook records, technical reports, patent applications, machine equipment, computer software, models, process and product designs\nincluding any drawings and descriptions, unwritten knowledge and "know-how", operating instructions, training manuals, production and\ndevelopment processes, production or other schedules, customer lists, customer buying records, product sales records, sales requests, territory\nlistings, market surveys, plans including marketing plans and long-range plans, salary information, contracts, supplier lists, product costs, policy\nstatements, policy procedures, policy manuals, flowcharts, computer printouts, program listings, reproductions and correspondence.\nThe term "Invention" as used in this Agreement includes any discovery, improvement, design or idea, patentable, copywriteable or otherwise, which\nrelates to any activity or business in which the Company is engaged or any process, equipment, material, product or method (including computer\nsoftware) in which the Company has any direct or indirect interest.\n2. Inventions\nI will disclose promptly to the Company any Invention conceived, developed or perfected by me, either alone or jointly with another or others, while\nI am an employee, whether or not such conception, development or perfection occurs during the hours of my employment.\nI grant to the Company without further compensation, all my right, title and interest in and to any such Invention for the sole use and benefit of the\nCompany, together with all U.S. and foreign patents, trademarks or copyrights that may at any time be granted, and all reissues, renewals and\nextensions of such patents, trademarks or copyrights. At the request and expense of the Company, I will at any time do what the Company\nreasonably believes to be necessary to assist the Company to vest full right and title to each such Invention in the Company, enable the Company to\nobtain and maintain full right and title in any country, prosecute applications for and secure patents (including their reissue, renewal and extension),\ntrademarks, copyrights and any other form of protection for each such Invention, and prosecute or defend any interference or opposition which may\nbe\ndeclared involving any such application or patent and any litigation in which the Company may be involved concerning any such Invention. This\nwill include preparing, executing and delivering any written document, drawings, flowcharts, or computer printouts. The provisions of this section\nwill continue after I stop working for the Company and shall be binding on my executors, administrators and assigns, unless waived in writing by\nthe\nCompany.\n11\n3. Confidential Information\nI\nhave not disclosed and will not disclose to the Company, and I will not use, in the discharge of my duties as an employee of the Company, any\ntrade secret or confidential information belonging to a former employer or other person and which has been classified by the former employer or\nother person as a trade secret or confidentia information. The limitation set forth in this section shall not apply to matters which (a) are or become\npublic knowledge, (b) were previously known to the Company, (c) are subsequently received by the Company from a third party, or (d) are\nindependently derived by the Company\nI will not, directly or indirectly, during or at any time after the period of my employment by the Company, use for myself or others, or disclose to\nothers, any Confidential Information, no matter how such information becomes known to me, unless I first obtain the Company's written consent.\nWhen I leave the Company's employ, or at any other time upon request by the Company, I will promptly deliver to the Company all documents\nand\nrecords, including but not limited to those listed under the definition of Confidential Information, which are in my possession or under my control\nand which pertain to the Company, any of its activities or any of my activities while in the course of my employment and all copies thereof. I will not\nretain or deliver to any others copies of these documents or records.\n4. Non-Competition\nI\nacknowledge and agree that the Company's business competes upon a worldwide basis, and that the degree of competition in that business is high. I\nrecognize that the Company may assign me to duties in a geographic area or specific market. I agree that, unless I first obtain the Company's written\nconsent, I will not during my employment with the Company and for a period of two (2) years following the termination of my employment\n(provided, however, that if I am employed by the Company for less than two (2) years, the post-employment period to which this section applies shall\nbe the greater of six (6) months or the length of my employment in any capacity), directly or indirectly or through others, individually, or as a\nmember, officer, director, employee, agent, or investor of any partnership or entity (except ownership of not more than one percent (1%) of the\noutstanding publicly traded stock of any company):\n(i) participate in the ownership, management, operation or control of, or work for (as an employee, consultant or independent contractor) or\nhave\nany material financial interest in, any business competitive with the Company in (a) any market in which the company for which I have\nworked in the two (2) preceding years has sold or attempted to sel any of its product in the two (2) years preceding my termination or (b) if the\nCompany has assigned me to duties in a geographic area, within two hundred fifty (250) miles of any such geographic area in which I have\nworked in the two (2) years preceding my termination,\n12\n(ii)\ninduce or encourage any employee of the Company to terminate his or her employment with the Company,\nor\n(iii) solicit, induce or encourage any person, business or entity which is a supplier of, a purchaser from, or a contracting party with, the\nCompany to terminate any written or oral agreement, order or understanding with the Company or to conduct business in a way that results in\nan adverse impact to the Company.\nI\nfurther understand and agree that the remedy at law for any breach or threatened breach of my agreement not to compete contained in this section\nwould be inadequate and that any breach or attempted breach would result in irreparable damage to the Company, the monetary amount of which\nwould be impossible to ascertain. Thus, I agree that in the event of any breach or threatened breach of my agreement not to compete, in addition to\nall other available legal or equitable remedies, the Company may obtain injunctive relief to remedy damage caused by such breach or threatened\nbreach, and that the Company shall be entitled to recover from me its costs and expenses, including reasonable attorney fees, incurred in remedying\nsuch breach or threatened breach.\n5. General Terms\nI represent and agree that I have and will assume no obligations to others inconsistent with any of my obligations to the Company under this\nAgreement.\nIn consideration of my employment, I agree to conform to the policies of the Company. I understand that my employment is for an indefinite period\nand can be terminated at any time, with or without cause or prior notice by either the Company or me, and will remain so unless a written agreement\nfor a specific term is entered into and executed by me and the Company's CEO or CFO. No other representations or agreements have been made\nregarding the term or termination of my employment. I understand that no employee of the Company other than its CEO or CFO has the authority\nto\nenter into any agreement, commitment or guarantees binding on the Company regarding my employment and then only by a signed, written\ndocument.\nThis Agreement, which is ancillary to any other agreement I may have with the Company, (a) is intended as the complete and exclusive statement of\nmy agreement with the Company with respect to its subject matter, (b) shall be binding upon my heirs, executors and administrators, (c) shall be\nassignable by the Company to its successors; (d) shall not be modified unless in writing and signed by me and the Company, (e) shall be governed by\nand construed in accordance with the law of the State of Connecticut, the Company 's home office state, and (f) if any part of this Agreement\nis\nfound invalid by any court, the remainder shall be valid and enforceable in law and equity.\n/s/ David Freeman\n(Employee Signature)\n/s/ Rae Holmes\n(Witness to Signature)\nDavid Freeman\n(Employee printed name)\n7/2/03\n(Date)\n13\nLydall, Inc.\nBy:\n/s/ Roger M. Widmann\nName: Roger M. Widmann\nTitle: Chairman\n14	EX-10.1 2 dex101.htm INDEMNIFICATION AGREEMENT AND CONFIDENTIALITY AGREEMENT WITH\nDAVID FREEMAN\nExhibit 10.1\nEXHIBIT B\nINDEMNIFICATION AGREEMENT\nThis Agreement, made and entered into (“Agreement”), by and between Lydall, Inc., a Delaware corporation (“Company”), and David\nFreeman (“Indemnitee”):\nWHEREAS, highly competent persons are becoming more reluctant to serve publicly-held corporations as directors or in other capacities\nunless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions\nagainst them arising out of their service to and activities on behalf of the corporation; and\nWHEREAS, the current impracticability of obtaining adequate insurance and the uncertainties relating to indemnification have increased the\ndifficulty of attracting and retaining such persons;\nWHEREAS, the Board of Directors of the Company has determined that the inability to attract and retain such persons is detrimental to the\nbest interests of the Company’s stockholders and that the Company should act to assure such persons that there will be increased certainty of such\nprotection in the future; and\nWHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify such persons to the fullest\nextent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so\nindemnified; and\nWHEREAS, Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the\ncondition that he be so indemnified;\nNOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant\nand agree as follows:\nSection 1. Services by Indemnitee. Indemnitee agrees to serve (as a director, officer, employee, agent of the Company) (at the request of\nthe Company, as a director, officer, employee, agent, fiduciary of another corporation, partnership, joint venture, trust employee benefit plan or other\nenterprise. Indemnitee may at any time and for any reason resign from such position (subject to any other contractual obligation or any obligation\nimposed by operation of law), in which event the Company shall have no obligation under this Agreement to continue Indemnitee in such position.\n1\nSection 2. Indemnification - General. The Company shall indemnify, and advance Expenses (as hereinafter defined) to, Indemnitee (a) as\nprovided in this Agreement and (b) to the fullest extent permitted by applicable law in effect on the date hereof and as amended from time to time.\nThe rights of Indemnitee provided under the preceding sentence shall include, but shall not be limited to, the rights set forth in the other Sections of\nthis Agreement.\nSection 3. Proceedings Other than Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of\nindemnification provided in this Section 3 if, by reason of his Corporate Status (as hereinafter defined), he is, or is threatened to be made, a party to\nany threatened, pending, or completed Proceeding (as hereinafter defined), other than a Proceeding by or in the right of the Company. Pursuant to\nthis Section 3, Indemnitee shall be indemnified against all expenses, judgements, penalties, fines, and amounts paid in settlement actually and\nreasonably incurred by him or on his behalf in connection with such Proceeding or any claim, issue or matter therein, if he acted in good faith and in\na manner be reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal Proceeding, had no\nreasonable cause to believe his conduct was unlawful.\nSection 4. Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this\nSection 4 if, by reason of his Corporate Status, he is, or is threatened to be made, a party to any threatened, pending or completed Proceeding\nbrought by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section, Indemnitee shall be indemnified against all\nExpenses actually and reasonably incurred by him or on his behalf in connection with such Proceeding if he acted in good faith and in a manner he\nreasonably believed to be in or not opposed to the best interests of the Company; provided, however, that if applicable law so provides, no\nindemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have\nbeen adjudged to be liable to the Company unless and to the extent that the Court of Chancery of the State of Delaware, or the court in which such\nProceeding shall have been brought or is pending, shall determine that such indemnification may be made.\nSection 5. Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provision of this\nAgreement, to the extent that Indemnitee is, by reason of his Corporate Status, a party to and is successful, on the merits or otherwise, in any\nProceeding, he shall be indemnified against all Expenses actually and reasonably incurred by him or on his behalf in connection therewith. If\nIndemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues\nor matters in such Proceeding, the Company shall indemnify Indemnitee against all expenses actually and reasonably incurred by him or on his\nbehalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section and without limitation, the termination of\nany claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim,\nissue or matter.\nSection 6. Indemnification for Expenses of a Witness. Notwithstanding any other provision of this Agreement, to the extent that\nIndemnitee is, by reason of his Corporate Status, a witness in any Proceeding to which Indemnitee is not a party, he shall be indemnified against all\nExpenses actually and reasonably incurred by him or on his behalf in connection therewith.\n2\nSection 7. Advancement of Expenses. The Company shall advance all reasonable Expenses incurred by or on behalf of Indemnitee in\nconnection with any Proceeding within ten days after the receipt by the Company of a statement or statements from Indemnitee requesting such\nadvance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably\nevidence the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by an undertaking by or on behalf of Indemnitee to\nrepay any Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses.\nSection 8. Procedures for Determination of Entitlement to Indemnification.\n(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein\nor therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to\nwhat extent Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon receipt of such a request for\nindemnification, advise the Board of Directors in writing that Indemnitee has requested indemnification.\n(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 8(a) hereof, a determination,\nif required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case; (i)if a Change in Control (as\nhereinafter defined) shall be made in the Independent Counsel (as hereinafter defined) in a written opinion to the Board of Directors, a copy of which\nshall be delivered to Indemnitee; or (ii) if a Change of Control shall not have occurred, (A) by the Board of Directors by a majority vote of a quorum\nconsisting of Disinterested Directors (as hereinafter defined), or (B) if a quorum of the Board of Directors consisting of Disinterested Directors is not\nobtainable or, even if obtainable, such quorum of Disinterested Directors so directs, by Independent Counsel in a written opinion to the Board of\nDirectors, a copy of which shall be delivered to Indemnitee or (C) if so directed by the Board of Directors, by the stockholders of the Company; and,\nif it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such\ndetermination. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to\nindemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is\nnot privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such\ndetermination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with this person,\npersons or entity making such determination shall be borne by the Company (Irrespective of the determination as to Indemnitee’s entitlement to\nindemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.\n3\n(c) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to\nSection 8(b) hereof, the Independent Counsel shall be selected as provided in this Section 8(c). If a Change of Control shall not have occurred, the\nIndependent Counsel shall be selected by the Board of Directors, and the Company shall give written notice to Indemnitee advising him of the\nidentity of the Independent Counsel so selected. If a Change of Control shall have occurred, the Independent Counsel shall be selected by Indemnitee\n(unless Indemnitee shall request that such selection be made by the Board of Directors, in which event the preceding sentence shall apply), and\nIndemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either event, Indemnitee or\nthe Company, as the case may be, may, within 10 days after such written notice of selection shall have been given, deliver to the Company or to\nIndemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that\nthe Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 17 of this Agreement, and the\nobjection shall set forth with particularity the factual basis of such assertion. If such written objection is so made and substantiated, the Independent\nCounsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such\nobjection is without merit. If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant to Section 8(a) hereof,\nno Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Court of Chancery of the\nState of Delaware or other court of competent jurisdiction for resolution of any objection which shall have been made the Company or Indemnitee to\nthe other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Court of by such other\nperson as the Court shall designate, and the person with respect to whom all objections are so resolved or the person so appreciated shall act as\nIndependent Counsel under Section 8(b) hereof. The Company shall pay any and all reasonable fees and expenses of Independent Counsel incurred\nby such Independent Counsel in connection with acting pursuant to Section 8(b) hereof, and the Company shall pay all reasonable fees and expenses\nincident to the procedures of this Section 8(c), regardless of the manner in which such Independent Counsel was selected or appointed. Upon the due\ncommencement of any judicial proceeding or arbitration pursuant to Section 10(a)(iii) of this Agreement, Independent Counsel shall be discharged\nand relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).\nSection 9. Presumptions and Effect of Certain Proceedings.\n(a) If a Change of Control shall have occurred, in making a determination with respect to entitlement to indemnification\nhereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this\nAgreement if Indemnitee has submitted a request for indemnification in accordance with Section 8(a) of this Agreement, and the Company shall\nhave the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary\nto that presumption.\n4\n(b) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement of conviction, or\nupon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the\nright of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably\nbelieved to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable\ncause to believe that his conduct was unlawful.\nSection 10. Remedies of Indemnitee.\n(a) In the event that (i) a determination is made pursuant to Section 8 of this Agreement that Indemnitee is not entitled to\nindemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 7 of this Agreement, (iii) no\ndetermination of entitlement to indemnification shall have been made pursuant to Section 8(b) of this Agreement within 90 days after receipt by the\nCompany of the request for indemnification, (iv) payment of indemnification is not made pursuant to Section 5 or 6 of this Agreement within ten\n(10) days after receipt by the Company of a written request therefor, or (v) payment of indemnification is not made within 10 (10) days after a\ndetermination has been made that Indemnitee is entitled to indemnification, Indemnitee shall be entitled to an adjudication in an appropriate court of\nthe State of Delaware, or in any other court of competent jurisdiction, of his entitlement to such indemnification or advancement of Expenses.\nAlternatively, Indemnitee, at his option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial\nArbitration Rules of the American Arbitration Association. Indemnitee shall commence such proceeding seeking an adjudication or an award in\narbitration within 180 days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 10(a);\nprovided, however, that the foregoing clause shall not apply in respect of a proceeding brought by Indemnitee to enforce his rights under Section 5 of\nthis Agreement.\n(b) In the event that a determination shall have been made pursuant to Section 8(b) of this Agreement that Indemnitee is not\nentitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 10 shall be conducted in all respects as a de\nnovo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination. If a Change of Control shall\nhave occurred, in any judicial proceeding or arbitration commenced pursuant to this Section 10 the Company shall have the burden of proving that\nIndemnitee is not entitled to indemnification or advancement of Expenses, as the case may be.\n(c) If a determination shall have been made pursuant to Section 8(b) of this Agreement that Indemnitee is entitled to\nindemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this\nSection 10, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement\nnot materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.\n5\n(d) In the event that Indemnitee, pursuant to this Section 10, seeks a judicial adjudication of or an award in arbitration to enforce\nhis rights under, or to recover damages for breach of, this Agreement, Indemnitee shall be entitled to recover from the Company, and shall be\nindemnified by the Company against, any and all expenses (of the types described in the definition of Expenses in Section 17 of this Agreement)\nactually and reasonably incurred by him in such judicial adjudication or arbitration, but only if he prevails therein. If it shall be determined in said\njudicial adjudication or arbitration that Indemnitee is entitled to receive part but not all of the indemnification or advancement of expenses sought,\nthe expenses incurred by Indemnitee in connection with such judicial adjudication or arbitration shall be appropriately prorated.\nSection 11. Non-Exclusivity; Survival of Rights; Insurance; Subrogation.\n(a) The rights of indemnification and to receive advancement of Expenses as provided by this Agreement shall not be deemed\nexclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Certificate of Incorporation, the By-Laws,\nany agreement, a vote of stockholders or a resolution of directors, or otherwise. No amendment, alteration or repeal of this Agreement or of any\nprovision hereof shall limit or restrict any right of Indemnitee in his Corporate Status prior to such amendment, alteration or repeal.\n(b) To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers,\nemployees, or agents of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which\nsuch person serves at the request of the Company, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the\nmaximum extent of the coverage available for any such director, officer, employee or agent under such policy or policies.\n(c) In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of\nthe rights of recovery of Indemnities, who shall execute all papers required and take all action necessary to secure such rights, including execution of\nsuch documents as are necessary to enable the Company to bring suit to enforce such rights.\n(d) The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if\nand to the extent that Indemnities has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.\nSection 12. Duration of Agreement. This Agreement shall continue until and terminate upon the later of: (a)10 years after the date that\nIndemnitee shall have ceased to serve as a director, officer, employee, or agent of the Company or of any other corporation, partnership, joint\nventure, trust, employee benefit plan or other enterprise which Indemnitee served at the request of the Company; or (b) the final termination of any\nProceeding then pending in respect of\n6\nwhich Indemnitee is granted rights of indemnification or advancement of expenses hereunder and of any proceeding commenced by Indemnitee\npursuant to Section 10 of this Agreement relating thereto. This Agreement shall be binding upon the Company and its successors and assigns and\nshall inure to the benefit of Indemnitee and his heirs, executors and administrators.\nSection 13. Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any\nreason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each\nportion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or\nunenforceable) shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Agreement\n(including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or\nunenforceable, that is not itself invalid, illegal or unenforceable) shall be construed to as to give effect to the intent manifested thereby.\nSection 14. Exception to Right of Indemnification or Advancement of Expenses. Notwithstanding any other provision of this Agreement,\nIndemnitee shall not be entitled to indemnification or advancement of Expenses under this Agreement with respect to any Proceeding brought by\nIndemnitee, or any claim therein prior to a Change in Control, unless the bringing of such Proceeding or making of such claim shall have been\napproved by the Board of Directors.\nSection 15. Identical Counterparts. This agreement may be executed in one or more counterparts, each of which shall for all purposes be\ndeemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party\nagainst whom enforceability is sought needs to be produced to evidence the existence of this Agreement.\nSection 16. Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to\nconstitute part of this Agreement or to affect the construction thereof.\nSection 17. Definitions. (a) The phrase “Change of Control,” as used in this Agreement, shall mean i) an acquisition of the Company by\nmeans of a merger or consolidation or purchase of substantially all of its assets if and when incident thereto (A) the composition of the Board of\nDirectors of the Company (the “Board”) or its successor changes so that a majority of the Board is not comprised of individuals who were members\nof the board immediately prior to such merger, consolidation or purchase of assets or (B) the stockholders of the Company acquire a right to receive,\nin exchange for or upon surrender a majority of their stock, cash or other securities or a combination of the two; and/or ii) the acquisition by a person\n(as that term is hereafter defined) of the voting rights with respect to 25 percent or more of the outstanding Common Stock of the Company if such\nperson was not an officer or director of the Company on the date of this Agreement; and/or iii) the election or appointment to the Board of any\ndirector or directors whose appointment or election or nomination for election was not approved by a vote of at least a majority of the directors then\nstill in office who were either directors on the date hereof or whose election, appointment or nomination for election was previously so approved.\n7\n(b) “Corporate Status” describes the status of a person who is or was a director, officer, employee or agent of the Company or of\nany other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which such person is or was serving at the request\nof the Company.\n(c) “Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of\nwhich indemnification is sought by Indemnitee.\n(d) “Effective Date” means January 10, 2007.\n(e) “Expenses” shall include all reasonable attorney’s fees, retainers, court costs, transcript costs, fees of experts, witness fees,\ntravel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or\nexpenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, or being or\npreparing to be a witness in a Proceeding.\n(f) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and\nneither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such\nparty, or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term\n“Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a\nconflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.\n(g) “Proceeding” includes any action, suit, arbitration, alternate dispute resolution mechanism, investigation, administrative\nhearing or any other proceeding, whether civil, criminal, administrative, or investigative, except one (i) initiated by an Indemnitee pursuant to\nSection 10 of this Agreement to enforce his rights under this Agreement or (ii) pending on or before the Effective Date.\nSection 18. Modification and Waiver. No supplement, modification or amendment of this Agreement shall be binding unless executed in\nwriting by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other\nprovisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.\nSection 19. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with any summons,\ncitation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to\nindemnification or advancement of Expenses covered hereunder.\n8\nSection 20. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have\nbeen duly given if (i) delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, or\n(ii) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed:\n(a) If to Indemnitee, to:\nDavid Freeman\nxxxxx\nxxxxx\n(b) If to the Company to:\nMary Tremblay\nVice President, General Counsel and Secretary\nLydall, Inc.\nP.O . Box 151\nOne Colonial Road\nManchester, CT 06045-0151\nor to such other address as may have been furnished to Indemnitee by the Company or to the Company by Indemnitee, as the case may be.\nSection 21. Governing Law. The parties agree that this Agreement shall be governed by, and construed and enforced in accordance with,\nthe laws of the State of Delaware.\nSection 22. Miscellaneous. Use of the masculine pronoun shall be deemed to include usage of the feminine pronoun where appropriate.\nIN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first written.\nATTEST:\nLYDALL, INC.,\nBy /s/ Mary A. Tremblay\nBy /s/ W. Leslie Duffy, Esq.\n9\nINDEMNITEE\n/s/ David Freeman\nDavid Freeman\nxxxxxxxxx\nxxxxxxxxx\n10\nConfidentiality and Non-Compete Agreement\nIn consideration of my employment by the Company, or future employment with an affiliate to whom I am transferred (together the “Company”), the\ncompensation and other benefits to be received by me from the Company, I agree that:\n1. Definitions\nThe term “Confidential Information” as used in this Agreement includes all business information and records which relate to the Company or to\nparties working with the Company under a confidentiality agreement, and which are not known to the public generally, including, but not limited to,\ntechnical notebook records, technical reports, patent applications, machine equipment, computer software, models, process and product designs\nincluding any drawings and descriptions, unwritten knowledge and “know-how”, operating instructions, training manuals, production and\ndevelopment processes, production or other schedules, customer lists, customer buying records, product sales records, sales requests, territory\nlistings, market surveys, plans including marketing plans and long-range plans, salary information, contracts, supplier lists, product costs, policy\nstatements, policy procedures, policy manuals, flowcharts, computer printouts, program listings, reproductions and correspondence.\nThe term “Invention” as used in this Agreement includes any discovery, improvement, design or idea, patentable, copywriteable or otherwise, which\nrelates to any activity or business in which the Company is engaged or any process, equipment, material, product or method (including computer\nsoftware) in which the Company has any direct or indirect interest.\n2. Inventions\nI will disclose promptly to the Company any Invention conceived, developed or perfected by me, either alone or jointly with another or others, while\nI am an employee, whether or not such conception, development or perfection occurs during the hours of my employment.\nI grant to the Company without further compensation, all my right, title and interest in and to any such Invention for the sole use and benefit of the\nCompany, together with all U.S . and foreign patents, trademarks or copyrights that may at any time be granted, and all reissues, renewals and\nextensions of such patents, trademarks or copyrights. At the request and expense of the Company, I will at any time do what the Company\nreasonably believes to be necessary to assist the Company to vest full right and title to each such Invention in the Company, enable the Company to\nobtain and maintain full right and title in any country, prosecute applications for and secure patents (including their reissue, renewal and extension),\ntrademarks, copyrights and any other form of protection for each such Invention, and prosecute or defend any interference or opposition which may\nbe declared involving any such application or patent and any litigation in which the Company may be involved concerning any such Invention. This\nwill include preparing, executing and delivering any written document, drawings, flowcharts, or computer printouts. The provisions of this section\nwill continue after I stop working for the Company and shall be binding on my executors, administrators and assigns, unless waived in writing by the\nCompany.\n11\n3. Confidential Information\nI have not disclosed and will not disclose to the Company, and I will not use, in the discharge of my duties as an employee of the Company, any\ntrade secret or confidential information belonging to a former employer or other person and which has been classified by the former employer or\nother person as a trade secret or confidential information. The limitation set forth in this section shall not apply to matters which (a) are or become\npublic knowledge, (b) were previously known to the Company, (c) are subsequently received by the Company from a third party, or (d) are\nindependently derived by the Company.\nI will not, directly or indirectly, during or at any time after the period of my employment by the Company, use for myself or others, or disclose to\nothers, any Confidential Information, no matter how such information becomes known to me, unless I first obtain the Company’s written consent.\nWhen I leave the Company’s employ, or at any other time upon request by the Company, I will promptly deliver to the Company all documents and\nrecords, including but not limited to those listed under the definition of Confidential Information, which are in my possession or under my control\nand which pertain to the Company, any of its activities or any of my activities while in the course of my employment and all copies thereof. I will not\nretain or deliver to any others copies of these documents or records.\n4. Non-Competition\nI acknowledge and agree that the Company’s business competes upon a worldwide basis, and that the degree of competition in that business is high. I\nrecognize that the Company may assign me to duties in a geographic area or specific market. I agree that, unless I first obtain the Company’s written\nconsent, I will not during my employment with the Company and for a period of two (2) years following the termination of my employment\n(provided, however, that if I am employed by the Company for less than two (2) years, the post-employment period to which this section applies shall\nbe the greater of six (6) months or the length of my employment in any capacity), directly or indirectly or through others, individually, or as a\nmember, officer, director, employee, agent, or investor of any partnership or entity (except ownership of not more than one percent (1%) of the\noutstanding publicly traded stock of any company):\n(i) participate in the ownership, management, operation or control of, or work for (as an employee, consultant or independent contractor) or\nhave any material financial interest in, any business competitive with the Company in (a) any market in which the company for which I have\nworked in the two (2) preceding years has sold or attempted to sell any of its product in the two (2) years preceding my termination or (b) if the\nCompany has assigned me to duties in a geographic area, within two hundred fifty (250) miles of any such geographic area in which I have\nworked in the two (2) years preceding my termination,\n12\n(ii) induce or encourage any employee of the Company to terminate his or her employment with the Company, or\n(iii) solicit, induce or encourage any person, business or entity which is a supplier of, a purchaser from, or a contracting party with, the\nCompany to terminate any written or oral agreement, order or understanding with the Company or to conduct business in a way that results in\nan adverse impact to the Company.\nI further understand and agree that the remedy at law for any breach or threatened breach of my agreement not to compete contained in this section\nwould be inadequate and that any breach or attempted breach would result in irreparable damage to the Company, the monetary amount of which\nwould be impossible to ascertain. Thus, I agree that in the event of any breach or threatened breach of my agreement not to compete, in addition to\nall other available legal or equitable remedies, the Company may obtain injunctive relief to remedy damage caused by such breach or threatened\nbreach, and that the Company shall be entitled to recover from me its costs and expenses, including reasonable attorney fees, incurred in remedying\nsuch breach or threatened breach.\n5. General Terms\nI represent and agree that I have and will assume no obligations to others inconsistent with any of my obligations to the Company under this\nAgreement.\nIn consideration of my employment, I agree to conform to the policies of the Company. I understand that my employment is for an indefinite period\nand can be terminated at any time, with or without cause or prior notice by either the Company or me, and will remain so unless a written agreement\nfor a specific term is entered into and executed by me and the Company’s CEO or CFO. No other representations or agreements have been made\nregarding the term or termination of my employment. I understand that no employee of the Company other than its CEO or CFO has the authority to\nenter into any agreement, commitment or guarantees binding on the Company regarding my employment and then only by a signed, written\ndocument.\nThis Agreement, which is ancillary to any other agreement I may have with the Company, (a) is intended as the complete and exclusive statement of\nmy agreement with the Company with respect to its subject matter, (b) shall be binding upon my heirs, executors and administrators, (c) shall be\nassignable by the Company to its successors; (d) shall not be modified unless in writing and signed by me and the Company, (e) shall be governed by\nand construed in accordance with the law of the State of Connecticut, the Company ‘s home office state, and (f) if any part of this Agreement is\nfound invalid by any court, the remainder shall be valid and enforceable in law and equity.\n/s/ David Freeman\n(Employee Signature)\n/s/ Rae Holmes\n(Witness to Signature)\nDavid Freeman\n(Employee printed name)\n7/2/03\n(Date)\n13\nLydall, Inc.\nBy: /s/ Roger M. Widmann\nName: Roger M. Widmann\nTitle: Chairman\n14
diff --git a/train/out.tsv b/train/out.tsv
new file mode 100644
index 0000000..8b429d1
--- /dev/null
+++ b/train/out.tsv
@@ -0,0 +1,254 @@
+effective_date=2001-04-18 jurisdiction=Oregon party=Nike_Inc. party=Jeffrey_M._Cava
+effective_date=1999-05-03 jurisdiction=Delaware term=5_years party=Gilead_Sciences_Inc. party=Elizabeth_P._Bhatt
+effective_date=2012-01-06 jurisdiction=Florida party=The_Company
+effective_date=1999-02-06 jurisdiction=Pennsylvania party=Michael_M._Cimino
+effective_date=2011-01-27 jurisdiction=California term=18_months party=Special_Com party=Jonathan_T._Keen
+effective_date=2004-11-19 jurisdiction=California party=Dolby_Laboratories_Inc. party=Lara_M._Hopwood
+effective_date=1996-05-03 jurisdiction=New_York term=12_months party=Open_Joint_Stock_Company party=Jeffrey_D._Mc
+effective_date=2011-02-28 jurisdiction=Delaware party=Wells_Fargo_Securities_Llc party=Samuel_E._Farnham
+effective_date=1986-05-03 jurisdiction=Illinois term=1_year party=Outstanding_Company_Com party=Appendix_B._The
+effective_date=1999-05-03 jurisdiction=New_York party=Potomac_Key_Group_Llc
+effective_date=1999-05-03 jurisdiction=Delaware party=Security_Inc. party=Robert_K._Biggart
+effective_date=2009-05-03 jurisdiction=Iowa term=24_months party=The_Company
+effective_date=1999-05-03 jurisdiction=Delaware term=12_months party=Aspect_Medical_Systems_Inc. party=Susan_W._Murley
+jurisdiction=Indiana party=Incentive_Com party=David_L._Fetherman
+effective_date=2016-05-03 jurisdiction=New_York party=Central_European_Distribution_Corporation
+effective_date=1999-05-03 jurisdiction=Massachusetts term=2_years party=Neon_Systems_Inc. party=Brian_D._Helman
+effective_date=2008-08-06 jurisdiction=maine term=12_months party=The_Company party=Mark_G._Morrison
+jurisdiction=Michigan party=The_Company party=James_C._Lee
+effective_date=2004-11-05 jurisdiction=Indiana party=Haynes_Wire_Company party=Francis_J._Petro
+effective_date=2005-05-15 jurisdiction=COLORADO party=Clovis_Oncology_Inc. party=Patrick_J._Mahaffy
+jurisdiction=Georgia party=Prosperity_Bank party=Shirley_P._Fiano
+jurisdiction=New_York party=The_Company
+effective_date=2020-01-13 jurisdiction=Oregon party=Nike_Inc. party=John_J._Donahoe
+effective_date=2016-02-12 jurisdiction=Pennsylvania term=2_years party=Board_Com party=Bradley_S._Vizi
+effective_date=2008-01-01 jurisdiction=Delaware term=12_months party=Verso_Paper_Deferred_Com party=Peter_H._Kesser
+effective_date=2008-09-10 jurisdiction=Florida term=2_year party=Discover_Screens_Inc.
+jurisdiction=Delaware party=General_Corporation
+effective_date=2005-04-06 jurisdiction=Illinois term=36_months party=Rubicon_Technology_Inc. party=William_F._Weissman
+effective_date=2011-05-16 jurisdiction=Illinois term=5_years party=Struggles_Inc. party=Richard_W._Pehlke
+effective_date=2010-09-07 jurisdiction=Delaware party=Biodelivery_Sciences_International_Inc. party=Mark_A._Sirgo
+jurisdiction=California term=5_years party=Cisco_Systems_Inc.
+effective_date=2014-03-21 jurisdiction=Delaware party=Cloudera_Inc. party=David_A._Bell
+effective_date=2013-11-11 jurisdiction=Missouri party=Compensation_Com party=Craig_W._Ashmore
+jurisdiction=Oregon term=12_months party=Covenant_Not_To_Com party=Charles_D._Denson
+effective_date=1999-05-03 jurisdiction=Delaware term=18_months party=Pacific_Llc party=David_G._Park
+effective_date=1999-05-03 jurisdiction=Delaware term=18_months party=The_Company party=Stephen_A._Vintz
+effective_date=2014-12-31 jurisdiction=Connecticut party=Manufacturing_Company_Llc
+effective_date=1999-05-03 jurisdiction=Nevada term=12_months party=Special_Com party=James_J._Zenni
+effective_date=1999-05-03 jurisdiction=New_York term=18_months party=Acquisitions_Llc party=Catharon_J._Miller
+jurisdiction=Illinois party=First_Oak_Brook_Bancshares_Inc.
+effective_date=2005-05-04 jurisdiction=Idaho party=The_Company party=Michael_L._Mooney
+effective_date=2012-08-01 jurisdiction=Florida party=Aerosonic_Corporation
+effective_date=1999-05-03 jurisdiction=Delaware term=1_year party=Coating_Inc. party=David_H._Dingus
+jurisdiction=DELAWARE term=10_year party=Interactive_Data_Corporation
+effective_date=2007-03-15 jurisdiction=Minnesota party=Enpath_Medical_Inc. party=James_D._Hartman
+effective_date=2011-01-03 jurisdiction=Virginia term=18_months party=Smokeless_Tobacco_Company_John_Middleton_Company
+effective_date=1999-05-03 jurisdiction=California party=Diedrich_Coffee_Inc.
+effective_date=2004-10-03 jurisdiction=California party=Digipath_Inc.
+effective_date=2018-04-20 jurisdiction=Nevada party=The_Company party=Elaine_P._Wynn
+effective_date=2015-06-23 jurisdiction=New_York term=18_months party=The_Company party=William_S._Hughes
+effective_date=2006-05-05 jurisdiction=Washington term=1_year party=Employee_Company party=John_R._Higgins
+effective_date=1999-05-03 jurisdiction=Pennsylvania party=Maxwell_Shoe_Company_Inc. party=James_J._Tinagero
+effective_date=2008-09-29 jurisdiction=Ohio party=Cardinal_Health_Inc. party=Michael_A._Lynch
+jurisdiction=Nevada party=Heritage_Bank party=Randall_M._Chesler
+jurisdiction=Georgia party=Tz_Inc. party=Robert_S._Thompson
+effective_date=2014-04-15 jurisdiction=Delaware term=2_years party=World_Energy_Solutions_Inc. party=Philip_V._Adams
+effective_date=2015-02-10 jurisdiction=Texas party=Services_Company party=Michael_A._Carter
+effective_date=2012-05-03 jurisdiction=New_York party=Evercore_Partners_Inc.
+effective_date=1999-05-03 jurisdiction=New_York term=1_year party=Mmodal_Inc. party=Gregory_A._Belinfanti
+effective_date=2002-07-16 jurisdiction=Virginia term=5_years party=Shire_Us_Inc. party=Randal_J._Kirk
+effective_date=2017-05-03 jurisdiction=Wisconsin term=18_months party=Schneider_National_Inc.
+effective_date=2010-05-17 jurisdiction=Colorado party=Victoria_Industries_Inc. party=Robert_A._Newson
+effective_date=2006-10-30 jurisdiction=Oregon party=Tazo_Tea_Company
+effective_date=1999-05-03 jurisdiction=Delaware term=2_years party=Anadigics_Inc. party=Francis_J._Kramer
+effective_date=2001-05-22 jurisdiction=Ohio party=Aep_Energy_Services_Inc.
+effective_date=2009-01-09 jurisdiction=Missouri party=Compensation_Com party=Thomas_T._Riley
+jurisdiction=South_Dakota term=2_years party=The_Company
+effective_date=2008-05-03 jurisdiction=maine term=12_months party=The_Company party=Mark_G._Morrison
+effective_date=2006-01-05 jurisdiction=Indiana term=3_years party=Techniscan_Medical_Systems_Inc.
+effective_date=1999-05-03 jurisdiction=Minnesota party=Jab_Beech_Inc. party=Dan_E._Lee
+jurisdiction=Maine party=Rural_Cellular_Corporation
+jurisdiction=Kansas term=2_years party=Epiq_Systems_Inc. party=Denis_J._Villere
+effective_date=1999-05-03 jurisdiction=Delaware party=Technology_Research_Corporation party=Robert_D._Woltil
+effective_date=2005-05-31 jurisdiction=Illinois party=Promark_Technology_Inc. party=Dale_R._Foster
+effective_date=1999-08-24 jurisdiction=Indiana term=1_year party=Crystal_Clean_Llc party=Fred_M._Fehsenfeld
+jurisdiction=Massachusetts
+effective_date=1999-05-03 jurisdiction=Illinois term=2_years party=Option_Care_Inc. party=Robert_G._Zimmerman
+effective_date=1986-05-03 jurisdiction=New_Jersey term=22_months party=The_Company party=Frank_W._Burr
+effective_date=1999-05-03 jurisdiction=California term=5_years party=Gilead_Sciences_Inc. party=Lucy_J._Billings
+effective_date=1999-05-03 jurisdiction=California party=Catapult_Communications_Corporation party=Ronald_W._Buckley
+effective_date=2000-05-03 jurisdiction=Maine party=Bar_Harbor_Bank
+jurisdiction=North_Carolina party=Pozen_Inc.
+effective_date=2007-01-10 jurisdiction=Missouri party=Bear_Workshop_Inc.
+jurisdiction=Georgia
+effective_date=2018-01-01 jurisdiction=Missouri term=3_years party=Executive_Company party=Jack_D._Crusa
+effective_date=2010-03-17 jurisdiction=New_York party=Flir_Systems_Inc. party=William_W._Davis
+effective_date=2005-03-04 jurisdiction=Georgia party=Citi_Trends_Inc. party=Bruce_D._Smith
+effective_date=2008-05-06 jurisdiction=New_York party=Business_Com party=Victor_I._Lewkow
+effective_date=2010-07-01 jurisdiction=Delaware party=Yrc_Worldwide_Inc. party=Sheila_K._Taylor
+effective_date=2007-05-17 jurisdiction=California term=2_years party=Inverness_Medical_Innovations_Inc.
+effective_date=2002-10-17 jurisdiction=Oregon term=1_year party=Nike_Inc.
+effective_date=1999-05-03 jurisdiction=Delaware party=Jll_Partners_Inc. party=Ted_I._Kaminer
+effective_date=1999-05-03 jurisdiction=Delaware party=Xerox_Corporation party=Lawrence_A._Zimmerman
+jurisdiction=Connecticut
+effective_date=2015-10-05 jurisdiction=Utah party=The_Company party=William_B._West
+effective_date=1964-05-03 jurisdiction=Texas term=1_year party=Mavenir_Systems_Inc.
+effective_date=2016-10-03 jurisdiction=Delaware party=Caddystats_Inc. party=Micheal_P._Nugent
+effective_date=2011-02-01 jurisdiction=Ohio party=The_Citizens_Bank party=Bryan_K._Starner
+effective_date=2008-12-05 jurisdiction=California party=Stephens_Investments_Holdings_Llc party=Warren_A._Stephens
+jurisdiction=California
+effective_date=2009-11-16 jurisdiction=New_York term=3_years party=Crew_Group_Inc.
+effective_date=2013-10-10 jurisdiction=South_Carolina term=2_year party=The_Company party=Thomas_A._Wilkie
+effective_date=2011-03-22 jurisdiction=Texas party=Amerisourcebergen_Specialty_Group_Inc. party=Joseph_K._Belanoff
+effective_date=1999-05-03 jurisdiction=New_York party=Restaurant_Group_Inc. party=Steven_L._Scheinthal
+effective_date=1983-05-03 jurisdiction=New_Jersey party=The_Company
+effective_date=2009-02-28 jurisdiction=Georgia party=Prohibited_Com party=Geoffrey_J._Kelly
+effective_date=1999-05-03 jurisdiction=Massachusetts term=2_years party=Somanetics_Corporation party=Matthew_J._Nicolella
+effective_date=1999-03-03 jurisdiction=Texas term=12_months party=Special_Com party=Douglas_H._Miller
+effective_date=1999-05-03 jurisdiction=Delaware party=Datakey_Inc. party=David_A._Feste
+jurisdiction=New_York term=12_months party=Delcath_Systems_Inc.
+effective_date=2007-10-05 jurisdiction=Pennsylvania term=10_years party=Neuromed_Pharmaceuticals_Inc. party=Christopher_C._Gallen
+effective_date=2016-05-05 jurisdiction=Pennsylvania party=Tpg_Global_Llc party=Todd_B._Sisitsky
+effective_date=2010-11-04 jurisdiction=MASSACHUSETTS term=10_year party=Interactive_Data_Corporation
+effective_date=1999-05-03 jurisdiction=Delaware party=China_Bistro_Inc. party=Susanne_V._Clark
+effective_date=2014-09-18 jurisdiction=Florida term=2_years party=The_Company party=Robert_J._Shovlin
+effective_date=1999-05-03 jurisdiction=California term=2_years party=Avanir_Pharmaceuticals_Inc. party=Gregory_J._Flesher
+effective_date=1999-05-03 jurisdiction=California term=12_months party=Successfactors_Inc.
+effective_date=2012-10-30 jurisdiction=Delaware party=Special_Com party=Francis_P._Jenkins
+jurisdiction=Oregon term=1_year party=Nike_Inc. party=Mark_G._Parker
+jurisdiction=North_Carolina term=1_year party=Inspire_Pharmaceuticals_Inc. party=Christy_L._Shaffer
+effective_date=1999-05-03 jurisdiction=Pennsylvania term=12_months party=Danaher_Corporation party=James_F._Dalton
+effective_date=1999-05-03 jurisdiction=Maryland party=American_Realty_Capital_Properties_Inc.
+effective_date=1986-05-03 jurisdiction=Delaware term=12_months party=Verso_Paper_Holdings_Llc
+effective_date=1999-05-03 jurisdiction=Delaware term=3_years party=Blackbaud_Inc. party=Robert_E._Hughes
+effective_date=1986-05-03 jurisdiction=maine term=12_months party=The_Company party=Mark_G._Morrison
+effective_date=2017-05-03 jurisdiction=Massachusetts party=The_Company
+effective_date=2003-01-21 jurisdiction=Massachusetts term=12_months party=Trust_Company party=James_P._Palermo
+effective_date=1999-05-03 jurisdiction=New_York party=Adams_Respiratory_Therapeutics_Inc. party=Walter_E._Riehemann
+effective_date=2010-01-25 jurisdiction=Missouri term=5_years party=Energizer_Holdings_Inc. party=Peter_J._Conrad
+jurisdiction=Virginia term=12_months party=Compensation_Com party=Glenn_W._Rust
+effective_date=2008-09-01 jurisdiction=California party=Thomas_Properties_Group_Inc. party=James_A._Thomas
+effective_date=2006-11-28 jurisdiction=Virginia term=5_years party=New_River_Pharmaceuticals_Inc. party=Randal_J._Kirk
+effective_date=1999-05-03 jurisdiction=California party=Ubs_Securities_Llc
+
+effective_date=1976-05-03 jurisdiction=Wisconsin term=1_year party=The_Company party=Darren_W._Karst
+effective_date=2014-03-02 jurisdiction=Washington party=International_Llc party=Victoria_T._Blackwell
+effective_date=2006-01-18 jurisdiction=New_York term=3_years party=Burlington_Coat_Factory_Holdings_Inc.
+jurisdiction=Delaware party=Actuate_Corporation party=Gordon_A._Davies
+effective_date=2005-05-03 jurisdiction=Illinois term=1_year party=Sears_Com
+effective_date=2014-04-06 jurisdiction=Delaware party=Vocus_Inc. party=Mark_M._Anderson
+effective_date=2004-05-03 jurisdiction=Massachusetts term=6_months party=Boston_Private_Financial_Holdings_Inc. party=Timothy_L._Vaill
+effective_date=2007-05-17 jurisdiction=California term=2_years party=Inverness_Medical_Innovations_Inc. party=Gunars_E._Valkirs
+effective_date=2014-06-10 jurisdiction=Ohio party=Cardinal_Health_Inc. party=Jeffrey_W._Henderson
+jurisdiction=Illinois party=Transworld_Delivery_Inc. party=Robert_L._Norton
+effective_date=1986-05-03 jurisdiction=New_York term=3_years party=Crew_Group_Inc.
+effective_date=2004-08-24 jurisdiction=Delaware term=2_years party=Biodelivery_Sciences_International_Inc. party=Mark_A._Sirgo
+effective_date=1999-05-03 jurisdiction=Delaware term=18_months party=Lincare_Holdings_Inc. party=Paul_G._Gabos
+jurisdiction=Massachusetts party=Vistaprint_Usa_Inc.
+jurisdiction=Massachusetts
+jurisdiction=Utah party=Usana_Health_Sciences_Inc.
+effective_date=2009-11-06 jurisdiction=Washington term=5_years party=Microsoft_Corporation
+jurisdiction=Texas party=Legacy_Housing_Corporation
+effective_date=1999-05-03 jurisdiction=Delaware term=1_year party=Packeteer_Inc.
+effective_date=2006-05-03 jurisdiction=California term=3_years party=Alcis_Health_Inc.
+effective_date=2007-10-03 jurisdiction=Colorado term=5_years party=Health_Ltd. party=John_B._Quam
+effective_date=1999-05-03 jurisdiction=Georgia term=2_years party=Koch_Industries_Inc. party=Danny_W._Huff
+effective_date=2009-12-31 jurisdiction=Delaware party=Red_Mountain_Capital_Partners_Llc party=Payne_W._Joseph
+effective_date=2009-05-03 jurisdiction=Delaware term=12_months party=The_Hershey_Company party=Burton_H._Snyder
+effective_date=2002-10-03 jurisdiction=New_Jersey term=12_months party=The_Company party=Frank_W._Burr
+effective_date=2010-08-03 jurisdiction=Virginia term=2_years party=Comstock_Homebuilding_Companies_Inc. party=Joseph_M._Squeri
+effective_date=2005-07-01 jurisdiction=New_York party=Omnicare_Inc. party=Joel_F._Gemunder
+effective_date=2010-05-03 jurisdiction=Michigan term=12_months
+effective_date=2010-10-03 jurisdiction=Nevada term=2_year party=Ags_Llc
+effective_date=2006-01-18 jurisdiction=New_York term=3_years party=Burlington_Coat_Factory_Holdings_Inc. party=Monroe_G._Milstein
+effective_date=2008-10-01 jurisdiction=Delaware term=5_years party=Netspend_Corporation party=Christopher_T._Brown
+effective_date=1999-05-03 jurisdiction=California party=Hifn_Inc. party=William_R._Walker
+effective_date=2006-02-28 jurisdiction=New_York term=12_months party=Gentiva_Health_Services_Inc. party=John_R._Potapchuk
+effective_date=2009-05-11 jurisdiction=New_York party=Api_Electronics_Inc. party=Thomas_W._Mills
+effective_date=1999-05-03 jurisdiction=California term=1_year party=Stor_Corporation_Inc.
+effective_date=2005-10-08 jurisdiction=New_Jersey term=6_months party=Heartland_Payment_Systems_Inc. party=Robert_O._Carr
+effective_date=2006-04-05 jurisdiction=Missouri party=Compensation_Com
+effective_date=2004-02-24 jurisdiction=Delaware term=2_years party=Crystal_Clean_Llc party=Bruce_C._Bruckmann
+effective_date=1999-05-03 jurisdiction=Texas party=Louis_Dreyfus_Com party=John_C._Sheptor
+effective_date=2005-11-03 jurisdiction=New_Jersey term=2_years party=Renaissance_Brands_Ltd. party=Douglas_B._Fox
+effective_date=1999-06-03 jurisdiction=New_York party=Evercore_Partners_Inc. party=Ralph_L._Schlosstein
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